A TREATISE ON THE LAW OF MORTGAGES, BY THE LATE JOHN JOSEPH POWELL, Esq. BARRISTER AT LAW. THE FIFTH EDITION, WITH COPIOUS NOTES AND AN APPENDIX OF PRECEDENTS; BY THOMAS COVENTRY, Esq. OF LINCOLN'S INN. IN TWO VOLUMES. VOL. II. Haud ignara mali, miseris succurrere disco,-ÆNEI. LIB. I. LONDON: PRINTED AND PUBLISHED BY S. BROOKE, ANALYTICAL TABLE OF CONTENTS TO VOL. II. CAPUT XIV. OF NOTICE EXPRESSED AND IMPLIED. ACTUA CTUAL notice, page 561.-Presumptive notice, what, 562.-Public rumour, 562, n.-Action for slander of title, ib.-Copyhold mortgage entered in wrong book, no notice, 563.-Notice of deed, notice of its contents, 563, n.- -Notice by exception in deed, ib.-Excess of power binding with notice, ib.-Notice of deed not notice of fraud, 564, n.-Title under will is notice of legacies given by it, 564, n. 566.-Purchaser not presumed to know doubtful equities, 566, n— otherwise of plain equities, 567, n.-Of notice by purchase from executor, 568-Boná testatoris not liable to fi. fa. against executor, 569, n.-Purchase of executor with notice of unsatisfied debt, void against creditors, 570.—No preference to creditor becoming mortgagee with notice of trust, 571, n.-Purchaser with notice of settlement, 572.-Öld writings not notice, if not necessary to title, 572, 573.-Notice presumed from words implying existence of prior mortgage, 573.-Notice of incumbrance is notice of the existing incumbrance though it be of another description, 574, n.-Between equal equities, one obtaining legal estate without notice, preferred, ib.-Notice to tenants for life, not notice to those in remainder, 575.-Renewed leases are notice of leases surrendered, and of recitals therein, 575, n.-Whatever puts a party on enquiry is good notice in equity, 576.-Notice of tenant's possession, is notice of his interest, 576, n-but not of equitable contract thereon, 577, n.-Notice of tenancy not notice of lessor's title, ib.-No laches in neglecting to obtain legal title, ib.-Inadequacy of consideration notice, when, 578, n.-Notice, a question for jury, 579, n.-Purchase money unpaid not to be inferred by recital of title, 580, n.-No notice of deed overlooked, 581.-Notice to agent binding on principal, if in same transaction, 581. 586.-Notice to attorney's agent in London, notice to principal, 583.-Principal responsible for agent, 584.-Purchase, with notice, set aside, 585, n.-Notice not eluded by conveyance to trustee, ib.---What, if attorney be not employed throughout, 587-or business be taken from him before he enter upon it, 588.-Optional with counsel, &c. to be examined, ib. not permitted to reveal secrets of client, ib.-Attorney concealing incumbrance from his client liable to make satisfaction, 589.-Assignee of mortgagee affected with notice to his assignor, ib.-Legal estate not taken from mesne mortgagee, 590.-Act of bankruptcy notice, ib.-Stat. of James not repealed by Sir S. Romilly's act, 591, n.-Whether purchaser, after act or commission of bankrupt, without notice of either, may protect himself by prior legal estate, 593, n. 594, n.-Judgments on record not notice, 596.-But there may be constructive notice of judgments independently of record, 597.Lien of judgments on land, 598.-Origin of elegit, 599.-Ejectment necessary to obtain possession, 600.-Moiety of lands, and all goods may be taken under, 601.-Uses and trusts made liable to execution, by what statutes, 602-not VOL. II. a subject to execution at common law, 603.-Reasons for excluding trusts from 10th sec. of stat. of frauds, 604, n.-Judgment creditor may sell term by fi. fa. or extend moiety of it under elegit, 605, n.-Lands in trust, conveyed away between judgment and execution, cannot be followed, 606.-Judgment not a lien on trust estate either at law or in equity, 608. 610.-Leaseholds affected from time fieri facias is lodged with sheriff, 609.-Judgment creditor, before he can redeem leasehold, must sue out execution, ib.-Lien of judgments, as to debtor and purchaser, on freehold and leasehold estates, 611, n.-Terms for years, different kinds, 612.-Attendant terms, 613.-Term never assigned to attend, removed in equity out of judgment creditor's way, 614.-Purchaser with notice, protected by term never assigned to attend, 615.-This doctrine questioned, 615, n-as nothing can destroy effect of actual notice, 617, n.-Decree not notice of matters disputed, 616.-Being present at hearing, good notice, 617, n. Lis pendens of personalty, not notice, 618.-Act of parliament, when notice, 618, n.-Registration, not constructive notice, ib.-Öf registering mortgages, 618, n. 619, n-and entering satisfaction thereon, 620, n.-Of registering judgments, ib.-deeds of appointment, 621, n.-equitable mortgages, ib.lease and assignments, ib.-To prevent further advances, judgment creditor should fix prior mortgagee with actual notice, 622.-Second mortgagee should take a similar precaution, 623.-Notice of unregistered mortgage binding, 624.-Unregistered lease, with notice, binding on subsequent purchaser, 625, n. Suspicion of notice not enough, 626.-Of proof of notice by parol, 626, n.—Exposition of registry acts, 628, n.-Third mortgagee may purchase first, notwithstanding second be registered, ib.-English and Irish registry acts distinguished, 629, n.-Mischief of considering registration notice in every event, 630, n.-Recapitulation of points on registry act, 631, n.-Of obtaining possession of title-deeds by remedy at law, ib-by remedy in equity, 633, n.Defendant not obliged to produce deed which would weaken his title, 634.— Mortgagee not compellable to produce title deeds, 635-unless he consents to sale, ib. How one person affected with notice to another, 635, n.-Lessee cannot over-reach lessor by assigning to one without notice, 636, n.— -Only use of plea of purchase without notice, is to defend actual possession-This point fully discussed, 637 to 652.-Concluded that actual possession irrelevant to plea of purchase for value without notice, 648. 652.—Deeds follow, and are incident to estate, 638.-Of persons entitled to custody of deeds, 642, n.-Equity will prevent improper use being made of term, 640.-No presumption against bond fide purchaser, 645.-Plea of purchase for valuable consideration without notice, must aver possession in vendor, conveyance, and consideration, and deny notice and fraud, 653.-Of avoiding plea by answer, 654.-Plea protects as well against legal as equitable claim, 655.-Voluntary settlement void against purchaser, even with notice, 655, 656.-What shall be voluntary settlement, 657, n.-If with power of revocation it is in nature of a will, ib.-Conveyance voluntary if to pay debts unspecified, 656, 657.-Composition deed good if all creditors execute, 658, n.-and bill may be filed to make creditors come in or renounce, ib.-Composition deed an act of bankruptcy, 659, n.-Other matters relating to composition-deed and bankruptcy, 660, n.-Voluntary mortgage made good by subsequent assignment for value, 659. CAP. XV. TO WHOM LANDS FORFEITED, UNDER A MORTGAGE, SHALL BELONG, Mortgage, personal estate, unless mortgagee direct otherwise, 662.-Money paid at day may be paid to heir or executor, 663-but heir in every event trustee for executor, 665, 666.-Receipt by one of several executors before probate, good, 665.-Heir of mortgagee may pay money to executor, and take benefit of foreclosure, 666.-Mortgage in fee, part of freeman's personal estate, 667,mortgage will not pass as land under description applicable to it in point of locality merely, 668.-No survivorship between joint mortgagees, 671.—Joint mortgagees trustees for each other, 671, n.-Executor of deceased mortgagee proper party to transfer of mortgage, 672.-On foreclosure by two mortgagees, estate divided between them, ib. CAP. XVI. HOW A WIFE IS INTERESTED IN HER HUSBAND'S ESTATE MORTGAGED, AND OTHER MATTERS RELATIVE THERETO. Wife barred of dower and jointure, by fine, non-claim, or recovery, 673, n— and every interest she may have in land or lien affecting it, 674.-So she may encumber her dower or jointure, ib.-Fine, a total or partial bar in equity, according to intention, 675, n.-Same of recovery, 680.--Agreement that fine shall not affect jointure, good, 677.-Joint answer in Chancery equal to fine, 678. 681, n. Dowress may redeem whole mortgage, and hold over for two-thirds, 681.Husband's personal estate must disencumber dower, 681, n.-Mortgagee having no notice of jointure, may tack, 682.--Wife, creditor by bond before marriage, may redeem mortgage of freehold and copyhold land, 683.--Jointress of part may redeem whole mortgage, 682-must contribute and keep down interest, 684.-Of advancement, 685.-Satisfied and unsatisfied terms distinguished as to dower, 687.-Term removed in favor of dowress, when, 687, n.-At law, term virtually deprives widow of dower, 688, n.—Contrà in equity, against heir and devisee, 686-also against volunteer and assignee in bankruptcy, 688-but not against mortgagee or purchaser, 689, n.-If term not satisfied, widow can obtain dower by redeeming, ib.-Widow in every case entitled to dower of equity of redemption on mortgage for years, 691, n.-Origin of distinction as to denying dower, and allowing curtesy, of a trust, 693, n.-Widow not endowable of a pure trust, 696.-Widow not endowable of equity of redemption on mortgage in fee made before marriage, 699.-Reasons for not allowing dower of equity of redemption, 700, n.-General result of cases as to allowing dower of equity of redemption, 701, n.-No free-bench of equity of redemption, 703. Wife of mortgagee in fee not endowable in equity, ib. CAP. XVII. OF MORTGAGES MADE BY THE HUSBAND AND WIFE, OR THE HUSBAND ALONE, OF THE WIFE'S ESTATE, AND HIS INTEREST IN MORTGAGE MONEY DUE TO HER. Mortgage by husband and wife, without fine of her estate, ceases with coverture, 704.-Purchase in name of husband, wife, and daughter, an advancement, 705.-Wife may mortgage her estate by fine, 706.-Specific performance of husband's covenant that wife shall levy fine, decreed, 707.-Contrà if she refuse to concur, 707, 711, n.-Wife may levy fine subject to husband's disagreement, 710, n.-Wife not barred, if fine not perfected before husband's death, 708.-Equity of redemption on mortgage of wife's leasehold estate, belongs to husband or wife surviving, 714, 715.-Trust term of wife within husband's power, except settled to her separate use, 716, n.-In which case he must be party to deed, 719.-Disposition by wife before marriage, of her estate, without husband's privity, a fraud on him and void, 719.-Voluntary assignment, 720.-What equities of wife husband may assign, 721.-If widow may confirm husband's mortgage of her estate, 722, 725.-Void and voidable leases distinguished, 723, n.-Lease by tenant for life void at his death, 724, n.-Wife's estate not liable beyond sum originally borrowed, 726, n. Wife's right to exoneration out of husband's personal estate for his debt |