Accounting. dered him the residue (f), he might have his writ of scire facias ad rehabendum terram, to ascertain the accidental profit, and to recover the land but in this latter case the tender must be in Court and of the money actually due, and not an offer to come to an agreement: the debtor might also have a scire facias, if he had obtained an acquittance; but a scire facias would not lie on a general averment that the creditor had received his debt; which might have happened through his improvement of the land, of which the debtor could take no advantage (g). See account against elegit creditor under 1 & 2 Vict. c. 110 (). Emblements. Possession, how obtained. Rent. Remainder. When lands are seised under an elegit, the debtor is not entitled to emblements (i). The sheriff formerly delivered actual possession of the land extended. He now delivers legal possession only (). Whether the plaintiff may enter by virtue of the elegit, or must obtain actual possession by ejectment, does not appear to have been clearly decided, although the authorities preponderate in favour of the first proposition (1). If, however, there is a tenant in possession under a lease granted prior to the date of the judgment (m), the creditor cannot succeed in ejectment; for the legal title must prevail, even although he give the tenant notice that he does not mean to disturb his possession, but only to get into the receipt of the profits. He may, however, extend the reversion and the rent; and he will have the like remedies for the rent as the debtor himself had (»). In Harris v. Booker (1), the Court seemed to have considered an attornment necessary, but a tenant by elegit has a right to distrain without attornment (p). The creditor, however, is not entitled to rent which became due after the delivery of the writ to the sheriff, but before the inquisition taken thereon (q). A sheriff has no power to seize a remainder (»). (f) 2 Roll. Ab. 482. (g) Ib. 483; Bac. Ab. Execution, C. 2. (i) Burden and Wittington's case, 2 (%) 2 Saund. 69, a.; Hatton v. Hay- (1) Rogers v. Pitcher, 6 Taunt. 202; (m) Doe v. Wharton, 8 T. R. 2; Rogers v. Pitcher, sup. (n) Campbell's case, 1 Roll. Ab. 894, pl. 5; Bishop of Bristow's case, Moor. 36, 2 Roll. Abr. 182; Vincent v. Going, 1 Jo. & Lat. 702. (p) Lloyd v. L. J. Exc. 80. Davies, 2 Exc. 103; 18 (9) Sharp v. Key, 8 M. & W. 379. () Vin. Ab. Stat. Merch. p. 556, pl. 15; Re South, 9 Ch. 369. mortgages. 51 Where there are outstanding mortgages, though not in posses- Outstanding sion, the sheriff cannot put a judgment creditor in possession on writs of elegit (s). The only remedy of the judgment creditor is a receiver, without prejudice to the rights of prior incumbrancers (s). (4.) Property subject to the writ at law. Copyholds (except, perhaps, as respects leases thereof) were not liable (u); nor, it would seem, customary freeholds (x); nor an advowson in gross (y); nor glebe lands; nor a church belonging to a parsonage or vicarage (≈); nor rents (a): but rent-charges (U), lands whereof a man is seised jure uxoris (c), or by the curtesy, and estates tail during the life of the tenant in tail, lands in ancient demesne (d), and estates granted by the Crown for the maintenance of dignities (e), and, it would seem, impropriate tithes (as they are said to have all the properties of temporal inheritances (ƒ)), and also the lands of a bishop (g); and, in short, every other species of landed property, whether held in severalty, coparcenary, or in common, including perhaps leases of copyhold granted by licence of the lord or under a special custom-were liable to the writ (); but if an estate tail was extended, the issue might have avoided it, after the death of tenant in tail, by assize or writ of auditâ querelâ (i); if one of two joint tenants confess a judgment, and die before execution, it will not bind the survivor (k). The glebe land of the benefice is bound from the delivery of the writ to the bishop (7). In Doe v. Roe (m) it was argued that corporate property applicable for public purposes, and not for the private benefit of the members of the corporation, was not extendible. (s) Rhodes v. Lord Mostyn, 17 Jur. 1007, V. C. Wood. (u) Heydon's case, 3 Co. 9; nor, according to Rolle, is a lease by license, 1 Roll. Abr. 888, (M) pl. 148. (x) 2 Scriv. Copy. 571; but see Man. Exc. Pr. 43. (y) Gilb. Ex. 39; but see Robinson v. Tonge, 3 P. Wms. 401. (2) Jenk. 207; Parry v. Jones, 2 Jur. N. S. 1190, 1 C. B. N. S. 231. (a) Walsall v. Heath, Cro. Eliz. 656. (6) Moore, 32, pl. 104. (d) Cox v. Barnsley, Hob. 47, 48. (f) Co. Litt. 159. (9) 3 Bac. Ab. Execution, C. 2. (i) Ashburnham v. Saint John, Cro. () 1 Inst. 184, b.; Abergavenny's case, 6 Rep. 78. (1) Cottle v. Warrington, 2 Nev. & M. 227. (m) 1 Q. B. 700. (c) Dalt. Sher. 136. Statute of (5.) Trust estates, how far subject to writ. Before the Statute of Frauds (n) trust estates, not being cognizable at common law, were not extendible on an elegit, statute, or recognizance (o); and, although the authorities were conflicting, were not assets in equity (p). By s. 10 of that statute, the sheriff is empowered to deliver execution of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any person should be seised or possessed of in trust for the debtor, like as if the debtor had been seised of such lands, &c., of such estate as they be seised of in trust for him at the time of such execution sued. Under this statute, trust estates of inheritance became subject to an execution at law. But trust estates, in which the judgment debtor had not the sole beneficial interest, as a trust for him and his creditors (g), or the like, could not be taken under an elegit, nor Outstanding could the equity of redemption of an estate of inheritance (r). But an outstanding term, vested in a trustee upon trust to attend the inheritance, was liable to be seized under an execution against the cestui que trust, as part of the inheritance (s). term. Trusts of a chattel interest were held not to be within the statute (t), nor was the equity of redemption of a term (u): and no trust estate could be taken in execution under the statute, but such as the debtor had at the time of execution sued. The words at the time of the execution sued refer to the seisin of the trustee (x); and, therefore, if the trustee had conveyed the land before the execution sued, though he was seised in trust for the defendant at the time of the judgment, the lands could not be taken in execution, and a purchaser for value without notice could protect himself by getting in the legal estate at any time before that period (y). (n) 29 Car. II. c. 3, s. 10. (a) Harris v. Pugh, 4 Bing. 335; Doe (r) Plunket v. Penson, 2 Atk. 290; Anglo-Italian Bank v. Davies, 9 Ch. D. 275, 284, C. A.; Clay v. Willis, 1 B. & C. 371; Forrest, 162. (s) Doe v. Evans, 1 Cr. & M. 450. (t) Scott v. Scholey, 8 East, 467, cited 2 Saund. 11, a. note; Metcalfe v. Scholey, 2 B. & P. N. R. 461; see Re Duke of Newcastle, 8 Eq. 700, 18 W. R. 8, M. R.; (u) Burdon v. Kennedy, 3 Atk. 738; Lyster v. Dolland, 1 Ves. J. 431, 3 Bro. C. C. 480. (x) Hunt v. Coles, Com. Rep. 226; Harris v. Pugh, 4 Bing. 335, 345; Higgins v. York Buildings Co., 2 Atk.. 107; and see Browne v. Cavendish, 1 Jo. & Lat. 634. (y) Churchill v. Grove, Nels. Ch. Rep. 91; 1 Wms. Saund. 275. SECT. 5. TRUST ESTATES, HOW FAR SUBJECT TO WRIT. under an 53 If a judgment was entered up against a vendor, and the conveyance Purchaser to the purchaser was in exercise of a power created by an instrument appointment. dated prior to the judgment, then, as the exercise of the power wholly displaced the estate in respect of which the judgment was obtained, the judgment was held to be defeated at law (~), and also in equity, even although with notice, and registered in a register county (a). (6.) Remedies of judgment creditor in equity. In addition to the legal remedy provided by the Statute of Westminster and the Statute of Frauds, a judgment, from the period of its being entered up, constituted an equitable lien on the lands of the debtor; so that, if there was some legal impediment to prevent the judgment creditor from taking them in execution under either of these statutes, equity, fastening upon the debtor's actual beneficial interest, would give the creditor the benefit which he would have had at law if no impediment had intervened; as where a debtor had only a partial equitable interest in freeholds which was not subject to legal execution (6): but he was obliged to sue out an elegit before filing his bill, although it was unnecessary for him to procure a return to this writ (c); and he was confined to the moiety which might have been taken in execution under the statute if there had been no legal impediment. of mortgage. In Stileman v. Ashdown (d) equity, however, assisted a judgment Redemption creditor by allowing him to redeem a subsisting mortgage (e); in which case he was entitled to have the entirety of the lands comprised in the mortgage sold for the satisfaction of his debt (f). Equity also assisted him by appointing a receiver (g). (2) Doe v. Jones, 10 B. & C. 459. (a) Tunstall v. Trappes, 3 Sim. 300; Eaton v. Sanxter, 6 ib. 517; Skeeles v. Shearley, 8 ib. 153, 3 My. & Cr. 12. (b) Forth v. Duke of Norfolk, 4 Mad. 504; Lewis v. Lord Zouche, 2 Sim. 388; Plaskett v. Dillon, 1 Hog. 328, 2 Bl. N. S. 239; Prid. Judg. 24, ed. 4; Dart & Barb. 421, ed. 4. (c) Neate v. Duke of Marlborough, 3 My. & C. 407; Smith v. Hurst, 1 Coll. 705; S. C. 10 Hare, 30; Godfrey v. Tucker, 33 Beav. 280, 9 Jur. N. S. 1188. (d) 2 Atk. 608, 610, and see O'Gormon v. Comyn, 2 Sch. & Lef. 137; O'Fallon v. Dillon, ib. 24; Rowe v. Bant, 1 Dick. 150. (e) Jones v. Meredith, Com. R. 661, Bunb. 347; Tunstall v. Trappes, sup.; Sharpe v. Earl of Scarborough, 4 Ves. 538. (f) Stonehewer v. Thompson, 2 Atk. 440. (g) Silver v. Bishop of Norwich, 3 Sw. 112, n.; White v. Bishop of Peterborough, ib. 109; Plaskett v. Dillon, sup.; Metcalfe v. Archbishop of York, 1 My. & Cr. 547. Administration of assets. Receiver. Office of profit. Judgment after contract for sale. And where an application was made after the death of the debtor for the administration of his assets (h), or where in the lifetime of the debtor from any other circumstances a sale had become indispensable, the Court satisfied the demand of the judgment creditor out of the entirety, without requiring him to sue out an elegit (i). As a judgment was no lien at law or in equity upon a chattel interest in land until execution (k), the creditor was not entitled to redeem a mortgage of such an interest, until he had sued out his writ of fi. fa. (1). The previous appointment of a receiver by the Court is no bar to a writ of elegit against the estate of a party beneficially entitled, for which leave will be given (m), or the judgment creditor may bring his action against the receiver and the owner (n). An office of profit granted by letters patent to a man and his heirs would, it seems, be sequestered in equity in favour of a judgment creditor, and a receiver be appointed, and it would, at all events, be considered real assets on his death (0). (7.) Trusts for sale. If a trust for sale of real estate was once well created, with power for the trustees to give discharges, the existence of subsequent judgments against the grantor did not prejudice the title (p). So also, where a judgment debtor was beneficially interested in a trust for sale created by another, the judgment did not form a lien on the moneys arising from the estate (2), nor was it material that the sale was by the Court (r). So, if a judgment was entered up after contract for sale and payment of the purchase-money, but prior to the conveyance, the purchaser would be relieved against it in equity (s). It was held that a purchaser, after notice of a judgment against the vendor, could not pay the purchase-money to (n) Lewis v. Lord Zouche, 2 Sim. 388. (0) Coote Mtg. 43, ed. 3. (p) Lodge v. Lysely, 4 Sim. 70. (2) Foster v. Blackstone, 1 My. & K. 297; Browne v. Cavendish, 1 Jo. & Lat. 606, 628; Robinson v. Hedger, 17 Sim. 183; 13 Jur. 846, V. C. E. (r) Alexander v. Crosby, 1 Jo. & Lat. 672. (s) Finch v. Earl of Winchelsca, 1 P. Wms. 277; Sugd. Vend. 666, ed. 11; 2 & 3 Vict. c. 11, s. 5. |