plaintiff's favour. Sir J. Leach, when that case was before him, did not have recourse to the ground upon which Lord Eldon confirmed his judgment on appeal, but gave a clear opinion that courts of equity will enforce these perpetual covenants, when they are of the essence of the enjoyment. The plaintiff is suing a party who claims under the deed. Austen cannot say that Cull did not execute the deed, because Austen's own title recites that he did. Can Austen's assignee be in a better situation? We rely, therefore, upon the express agreement contained in the deed, mutually binding on both parties, and notice of which deed is admitted by the defendants, who claim under Austen. Moreover, we submit, that as this covenant pertains most materially to the enjoyment of the land, it runs with the land at law.

Holmes v. Buckley, Prec. Chanc. 39. City of London v. Nash, 1 Fonblanque, 355; s. c. 3 Atk. 515.

The Solicitor General and Mr. Harwood, contrà. The notice of motion is to restrain the defendant from using the house as an inn or tavern. He never intended to do So. A family hotel does not come within the letter or spirit of the terms of the covenant. Lodging-houses are allowed "by the deed, and this is, in fact, meant to be a lodging-house, but not an inn. There is really no difference between a lodginghouse and a family hotel, either as to the number, or respectability of the visitors, or the nature of their entertainment. It is true, that the licence which an hotel-keeper takes, would enable him to open a common inn, but that is no proof that the defendant intends to do so. The obvious meaning of the covenant was, to restrain parties from doing that which would be noxious to the neighbourhood. It is clear, however, that this is not a covenant running with the land and binding at law upon the assignee. It does not concern the premises, and the mode of occupying them with reference to the interest of any reversioner, because the defendants have the fee. It is not like the case of a rent or easement reserved in perpetuity to the use of the vendor, but it merely purports to restrain property from being used in a particular mode for ever, and to support such a covenant, otherwise than as a personal and

collateral covenant, there is no authority. Then, if this covenant does not run with the land at law, the case of Keppell v. Bailey (2) solemnly decided that a court of equity will not, although a purchaser may be affected with notice, give to the covenant a more extensive operation than the law allows it.

Mr. Wigram, in reply.

The VICE CHANCELLOR.-I cannot draw the distinction between an hotel and any other inn or tavern. The defendants, therefore, have brought themselves within the terms of the covenant in the deed of 1799. Now that deed recites, that it should be "a general and indispensable condition of the sale of all or any part of the land intended to form such row, that the several proprietors of such land respectively, for the time being, should observe and abide by the several stipulations and restrictions thereinafter contained." Of this deed, the defendants admit they had notice. I take it for granted, that Cull and Austen executed the deed. Now, it appears to me, that the owner of each house in this row has a positive interest in having his neighbour's house used in accordance with the stipulations of that deed. Whatever difficulty, therefore, there may be in bringing an action upon the covenant, there is a plain agreement, which, as the defendants admit notice, a court of equity must consider binding on them.

Creditors' Suit-Practice-Contingent Debt-Apportionment.

There were two suits brought against the representatives of a testator, one a creditors' suit, and the other for a breach of trust. The accounts were taken in the first suit, and the debts, &c. ascertained, but the assets were insufficient to pay the debts in full, if the plaintiff in the second suit succeeded. The second cause not having been heard, the Court ordered a part of the assets to be set apart to answer the claims of the plaintiff in the second suit with the costs, and the residue was apportioned and paid to the creditors in the first suit.

The first of these causes, namely, Illingworth v. Nelson, was instituted in 1824, against the personal representatives of Caley Illingworth and of another person, both deceased, who had been the trustees of a marriage settlement; its object being to make them responsible for an alleged breach of trust, in respect of two sums, amounting to 2,8001.

The second suit of Swan v. Nelson was a common creditors' suit, commenced in June 1825, against the personal representatives of the same Caley Illingworth.

Under an order, made in both the causes, dated the 17th of June 1825, the representative of Caley Illingworth paid into court, in trust, in the two causes, the then balance of the personal estate. On the 27th of June 1825, the usual decree, in a creditors' suit, was made in the second cause; and it was referred to the Master to take an account of the personal estate, debts, &c. of the testator.

The Master found the amount of the debts of the testator, but did not include therein the debt claimed by the plaintiffs in the first suit, which had not at that time been substantiated; he also ascertained the amount of the assets applicable to the payment of those debts.

NEW SERIES, VII.-CHANC.

On the 15th of July 1828, the Vice Chancellor made an order for the taxation and payment of the costs of the second suit, and for the payment, out of the funds in court, of the several debts, by the Master's report, in the second suit, found to be due.

The plaintiffs in the first cause, who had not at that time obtained a decree, appealed from this order, which would have disposed of the principal part of the funds, and would have left little, if anything, applicable to the payment of their demand, if they succeeded in the first suit.

The appeal was heard before Lord Lyndhurst on the 21st of November 1828, who ordered that 300l., part of the assets, should be laid out in trust, in the two causes, to an account" of the costs of Illingworth v. Nelson," and to accumulate and form a fund to answer the costs of the said cause, according to the decree to be made therein; and the other funds were directed, after payment of certain costs, to be divided into two parts, according to the proportion which the claim of the plaintiffs, in the cause of Illingworth v. Nelson, bore to the amount of the debts proved in the cause of Swan v. Nelson; and the sum allotted to the creditors was directed to be apportioned and paid amongst the creditors, and the other part was to be retained in court to accumulate.

The Master accordingly divided the fund, and the whole assets, amounting to 1,760.; he apportioned the sum of 5321. to the creditors, in respect of their de mands in the second suit, amounting to 1,213.; and he apportioned 1,2287. to answer the claim of 2,800l. of the plaintiffs in the first suit.

On the 19th of February 1830, the cause of Illingworth v. Nelson came on for hearing before the Master of the Rolls,—

Mr. Bickersteth and Mr. Lovat for the plaintiffs; and

Mr. Pemberton and Mr. Ching for the defendants.

The plaintiffs then obtained a decree(1); and it was stated, that a subsequent order was made for appropriating to the plaintiffs in the first suit, the fund set apart to answer the claims.

(1) See Reg. Lib. 1830, A, 3082.

Ꮓ

Mortgage-Notice-Priority.

At law, different conveyances of the same tenement, take effect according to their priority in time; and where the legal estate is outstanding, the same rule prevails in equity, and different incumbrances rank according to their priorities in point of time.

A second mortgagee of a settled real estate, gave no notice of his incumbrance to the first mortgagee; and a third person, without notice of the second mortgage, having advanced to the mortgagor a further sum of money on the security of the same property, gave notice of his security to the first mortgagee, and also caused notice to be indorsed on the settlement :-Held, that the third mortgagee did not thereby obtain priority over the second.

In this case, it had been referred to the Master to inquire and state to the Court, what mortgages or other incumbrances there were affecting the estates of F. L. Brown, and Eliza his wife, devised by the wills of Thomas Jones and James Whitworth; and it appeared by the Master's report, that Thomas Jones being seised in fee of tenements in Carmarthen, by his will, dated the 25th of May 1815, devised them to Robert Waters and William Jones, in trust to pay unto, or permit and suffer Sarah Harvey and her assigns to receive, the rents, issues, and profits of all the said freehold estates for her life, and after her decease then upon trust; and the said testatrix devised the same hereditaments unto, between, and among Mary Whitworth and Eliza Brown, by her then name of Eliza Whitworth, to hold unto and to the use of them, the said Mary Whitworth and Eliza Brown, their heirs and assigns, as tenants in common, with benefit of survivorship. James Whitworth being seised of a tenement called Gell Street House, by his will, dated the 7th of December 1821, devised it to the said Robert Waters and one John Hughes, in trust for Eliza Whitworth for her life, with remainder over. Eliza Whitworth married Frederick Lewis Brown, and before the marriage, by lease and release of the 20th and

21st of December 1822, the release being made between Eliza Whitworth of the first part, Frederick Lewis Brown of the second part, John Lewis and William Skyrme of the third part, and the said Robert Waters and John Hughes of the fourth part, the remainder in fee, expectant upon the decease of Sarah Harvey, of the tenements in Carmarthen, which had been devised by Thomas Jones, was conveyed to Lewis and Skyrme, to such uses as Brown and his intended wife should jointly appoint, with remainders over. By indenture dated the 24th of December 1824, between Frederick Lewis Brown and Eliza, his wife, of the one part, and Wm. Jones of the other part, in consideration of 4361. 11s. 6d. paid to Brown and wife by William Jones, the Gell Street House was demised to William Jones for ninetynine years, if Eliza Brown should so long live; and in exercise of their power, Brown and wife appointed the remainder in fee of half of the tenements in Carmarthen, to the use of William Jones in fee, the whole redeemable on payment of 4361. 11s. 6d. and interest. By lease and release, dated the 14th and 15th of November 1825, the release being made between William Jones of the first part, Brown and wife of the second part, and Jane James, widow, of the third part, in consideration of 4367. 11s. 6d. paid to William Jones by Jane James, and of 2231. 8s. 6d. paid to Brown and wife by Jane James, William Jones assigned, and Brown and his wife confirmed to Jane James the property comprised in the term of ninety-nine years, in Gell Street House, to Jane James; and William Jones released, and Brown and wife appointed, released, and confirmed the remainder in fee, of half of the tenements in Carmarthen, to Jane James, the whole being redeemable on payment of 6607. and interest. By indenture dated the 14th of January 1826, and made between Brown and wife of the one part, and John Jones of the other part, reciting the will of Thomas Jones, and that Sarah Harvey was then in possession of the tenements devised by it, and that Eliza Brown had not disposed of her estate in reversion of and in the moiety of the said real estate, expectant upon the decease of the said Sarah Harvey; and after reciting the will

of James Whitworth, and the indentures of the 20th and 21st of December 1822, in consideration of 400l. paid by John Jones to Brown and wife, it was witnessed that Brown and wife appointed, granted, demised, and released the remainder in fee, of half of the tenements in Carmarthen, and also the Gell Street House, to John Jones, for the term of 500 years, redeemable on payment of 400/. with interest. There were no covenants for title; the only covenants were, one for payment of the mortgage money, for quiet enjoyment free from incumbrances, and for further assurance. By indenture dated the 18th of January 1826, in consideration of a further sum of 100l., advanced by John Jones, a further charge for 100l. was made. The Master found, as a fact, that the two last-mentioned indentures were made and executed to John Jones, and that John Jones advanced and paid the sums of 400l. and 100%., without any notice either to John Jones or to the solicitor, attorney, or agent of John Jones, of any charge or incumbrance on the said premises. And the report then proceeded, "And I find from .he depositions of John Williams, that previous to the execution of the said indenture of mortgage, the said John Jones inquired of the said Frederick Lewis Brown, if there existed any incumbrances on the said mortgaged premises, at the time the said John Jones obtained such two last-mentioned securities from the said Frederick Lewis Brown; and the said John Jones, also, previous to the execution of the said indentures of mortgage, caused inquiries to be made of the said John Hughes and Robert Waters, as to whether there were any mortgage incumbrances upon the estates mentioned in the said deeds of the 14th and 18th of January 1826; and the said John Williams, by the direction of the said John Jones, some few days previous to the said 14th of January 1826, went to the said John Hughes and Robert Waters, and asked each of them, the said John Hughes and Robert Waters, if there was or were any mortgage incumbrance or incumbrances upon the hereditaments and premises mentioned and described in the said deeds of the 14th and 18th of January 1826, and that each of them, the said John Hughes and the said Robert Waters, declared to the said John Williams, that there

was no mortgage or any other incumbrance to their knowledge; and each of them at the same time assured the said John Williams, that they believed that there was no mortgage, or any other debt or incumbrance upon the hereditaments and premises mentioned in the said deeds of the 14th and 18th of January 1826."

It was also stated, that in 1826, Brown applied to John Harries to lend him 8007., and proposed to secure it by a mortgage of the equity of redemption of all the hereditaments and premises comprised in the indentures of the 24th of December 1824, and the 15th of November 1825;-that John Harries referred Brown to his solicitor, Mr. Thomas, to whom Brown furnished copies of the indentures of December 1824 and November 1825, and assured the solicitor and Harries, that there was no incumbrance upon the said hereditaments and premises, save only the mortgage to Jane James, whereupon Mr. Thomas obtained an inspection of the indenture of 1822, and the title-deeds, which were in possession of William Jones, as the solicitor of Jane James, in order to ascertain for the safety of Harries, whether there was indorsed upon such indenture, or any other of the title deeds, any incumbrance upon the said hereditaments previous or subsequent to the deed of December 1822, when Mr. Thomas found there was none; and asked William Jones, if there were or was any incumbrances or incumbrance upon or affecting the said hereditaments or premises, or any part thereof, other than the said mortgage of the 24th of December 1824; and the said William Jones told the said Mr. Thomas he knew of none.

The defendant, John Harries, then lent to F. L. Brown, the sum of 8007.; and by indentures of lease and release of the 16th and 17th of November 1826, and made between Brown and wife of the one part, and Harries of the other part, after reciting the two wills and the indentures of the 21st of December 1822, the 24th of December 1824, and the 15th of November 1825, Brown and wife conveyed and appointed to Harries, their equity of redemption in the property comprised in the indenture of the 24th of December 1824, subject to redemption on payment of 8001. and interest. The report then stated, that this deed was duly executed and attested,

and that as a security to him, the said defendant John Harries, he, on the said 17th of November 1826, caused a notice in writing to be given, and the same was indorsed upon the said indenture of release or settlement of the 21st of December 1822, and which notice was in the words and figures following, that is to say:"Notice to whom it may concern, that the equity of redemption of the reversion expectant upon, and to take effect immediately on the decease of Miss Sarah Harvey, of the county of the borough of Carmarthen, of and in one undivided moiety or half part, the whole into two equal parts being divided, of and in all and singular the messuages, tenements, farms, lands, and hereditaments within mentioned and described, have been (subject to the payment to Jane James, widow, of 6601. and interest, already secured by mortgage thereon,) by us, the within named, by indentures of lease and release, and appointment, the release and appointment bearing even date herewith, granted and released, directed, limited, and appointed unto and to the use of John Harries, of the parish of Llangathen, in the county of Carmarthen, farmer, by way of mortgage, to secure the sum of 8001. and interest, payable as in the said indenture of release and appointment mentioned. Dated the 17th of November 1826. F. L. Brown, Eliza Brown."

The Master found there were three incumbrances on the property devised by the two wills; and he found that the priorities of such mortgages were as follows: first, the mortgage to William Jones; secondly, the mortgage to Harries; and thirdly, the mortgage to John Jones.

To this report, exceptions were taken, which now came on for argument.

Mr. Knight Bruce and Mr. G. Richards, for the plaintiffs, the representatives of John Jones, who, in point of time, was the second mortgagee, contended-that they were entitled to priority over Harries's mortgage. That where the legal estate, as in this case, was outstanding, the priority of incumbrances depended upon the priority of their dates. That the fact of the third mortgagee giving notice, and having it indorsed on the marriage settlement, did not alter the priorities; and that the doctrine of a priority being obtained by giving notice, only applied to choses in

action and trusts of personalty. Here, the subject of the mortgage was real estate, to which the rule had no application; and it was settled that a first mortgagee was not a trustee. That the point had been settled by the case of Peacock v. Burt (1).

Mr. Jacob and Mr. Coleridge, for Harries, contended, that the neglect of John Jones to make proper inquiries, and to give notice, amounted to a fraud on subsequent incumbrances; and that Harries, who had given notice, and taken all due precautions, was entitled to priority over John Jones's security. The point, they said, was decided by

Dearle v. Hall, 3 Russ. 1; s. c. 2 Law
J. Rep. Chanc. 62.

Loveridge v. Cooper, ibid. 30; s. c.
ibid. 75.

And Foster v. Blackstone (2) shewed that the doctrine applied to trusts of real estate.

The VICE CHANCELLOR, after stating the facts, and the Master's finding, proceeded; -To this report an exception has been taken; and the question is, whether the report is right, as to the priorities. At law, the rule clearly is, that different conveyances of the same tenement take effect according to their priority in time. If a man seised in fee, first grants one term of years and then another, the second termor cannot enter till the first term has ceased by effluxion of time, surrender or otherwise; so, if freehold interests be carved out of the fee by different conveyances, the estate of the second grantee cannot take effect in possession till the estate of the first has in some manner ceased. The effect of different conveyances is the same as if different successive estates were grant ed by the same conveyance, first in possession, and then in remainder. Equity follows the law; and where the legal estate is outstanding, conveyances of the equitable interest are construed and treated in a court of equity in the same manner as conveyances of the legal estate are construed and treated at law. In Beckett v. Cordley (3), which Lord Eldon notices in Ex parte Cawthorne (4), and in Martinez v.

(1) Coote on Mortgages, App. 693; s. c. 4 Law J. Rep. (N.S.) Chanc. 33.

(2) 1 Myl. & K. 297; s. c. 2 Law J. Rep. (N.s.) Chanc. 84.