infra, 46. 10 Ves. 246. growing out of the inheritance, as before it was attendant upon the inheritance during the husband's life. The heir therefore, though he could avail himself of the term at law, was not allowed in equity to defeat the widow's claim to dower; for having a certain quantity of interest, equity must consider her as having a correspondent interest in the term. When the husband conveyed to a purchaser, and the wife did not by fine join, nothing passed but the estate the husband had, that is, an estate subject to dower; the right to dower remained just where it was; the purchaser stood precisely in the place of the husband. The outstanding term would accompany the inheritance thus conveyed, in the mode and manner in which it was attendant upon the same inheritance before it was conveyed. The term being a mere accessary, the operation of the conveyance was purely derivative and consequential. It was not possible that a greater interest could be incidentally acquired under the term, than directly in the freehold. That the whole doctrine upon this subject was discussed by Lord Hardwicke in Willoughby v. Willoughby, in which he noticed the opinion of some conveyancers, that where there was a term, of which the trust was already declared to attend the inheritance, it was not necessary to disturb it, and take an assignment to new trustees; and showed that not to be generally true. But if there were antecedent incumbrances, nothing but an assignment could protect against them; and he conceived dower to be such an interest as could be guarded against only by an assignment. Upon a rehearing before Lord Eldon, it appeared that neither the deeds creating or assigning the term, were delivered to the purchaser. He concurred in opinion with the Master of the Rolls. 45. The doctrine that an outstanding term of years A Term will not protect shall protect a purchaser from the claim of dower, the Heir was carried still farther: for it was determined that against Dower. a satisfied term should protect an heir at law from dower. This was however soon over-ruled; and it was Brown v. resolved, that an outstanding term should not pro- Wms. 707. tect an heir from dower. Gibbs, 2 P. 46. A term was raised in Black Acre, in trust to Wray v. Williams, Prec. indemnify a person against incumbrances that might in Cha. 151. affect White Acre, which he had purchased. The defendant Lady Williams brought a writ of dower of Black Acre against the plaintiff, who was an infant; his guardian had let her take judgment at law, without setting up the term, or taking any notice of it. So the bill was brought by the infant heir, to be relieved against the judgment. It was said, by Lord K. Wright, that this case was the same with Lady Radnor's; and if she could not be relieved as plaintiff, it must be for want of equity; therefore, the plaintiff must be relieved against her, when she was defendant. And Lady Radnor's case having been affirmed in the House of Lords, the authority was so great that it could not be got over. At a rehearing of this cause before Lord Harcourt, 1 P. Wms. Lady Williams's counsel insisted that the heir, who 137. was but a volunteer, should not in equity, be relieved against the dowress; and that this case was different from that of Lady Radnor, in regard Vandebendy was a purchaser. To which it was answered, that if Lady Williams had been plaintiff in the original bill in equity, she could not have been relieved; as the term must have subsisted, for the benefit of the heir at law. That this was the same in reason with Lady Radnor's case; that the term was prior to the marriage, and so the husband only seised of the reversion ante, § 42. Nor the As- Neither Jointure nor Curtesy barred by a Term. in fee during the coverture. That as to Vandebendy's being a purchaser, he was so with full notice of dower, and got in the term to protect himself against the dowress; and therefore having notice, was to be considered as a volunteer. The decree was reversed; and it was ordered that the plaintiff Lady Williams, having recovered dower at law, the trust term should not stand in her way in equity. 47. Lord Harcourt's doctrine has been fully as sented to by Lord Hardwicke, who, in the case of Swannock v. Lifford, said, "If the husband dies, and there is a satisfied term continuing, the wife would be entitled to come into this Court, against the heir, to set that term out of the way, in order to have the benefit of her dower." 48. In a case in Chancery, 10 Geo. I., stated by Mr. Viner, the question was, whether the assignees of a bankrupt, by taking an assignment of a mortgage term, prior to the title of dower, should protect their estate from dower. It was insisted that the creditors and assignees stood only in the place of the bankrupt; and since such an assignment to the bankrupt himself, or his heir, would not protect the estate from dower, in the hands of the heir, neither should it protect the estate in the hands of the creditors of the bankrupt, or the assignees. That this differed the case from that of Radnor v. Vandebendy, where it was held that such a prior term should protect the estate from dower, in the hands of a purchaser. It was decreed that the widow should be let into her dower. 49. It has been stated, that the Court of Chancery will set aside a term for years in favour of a jointress. A tenant by the curtesy is also entitled to the aid of équity against a trust term, assigned to attend the Tit. 7. c. 2. inheritance, and set up against him by the heir. 2 Vern. 324. 50. The plaintiff, as tenant by the curtesy, brought Snell v. Clay, his bill to be relieved against a term for years, that was assigned in trust to attend the inheritance, and had been set up by the heir at law, in bar to his title. Decreed, that the term should not be made use of against him by the heir at law. Term is a 51. In consequence of the doctrine stated in ch. ii. Where a § 37. if a defendant in ejectment can show that there Bar in Ejectis an outstanding term for years, vested in a third ment. person, to the possession of which the plaintiff is not entitled, he cannot recover. So where a defendant can show that there is an outstanding term, of which the trusts are not completely satisfied; this will also operate as a bar to the plaintiff. 1 Term R. 52. Lord Mansfield held, that though there was Doe v. Pegg, an unsatisfied outstanding term, yet if the plaintiff 758. n. admitted the charge for which the term was created, and only claimed subject to such charge, the trustees of the term not asserting their right, he should recover. This doctrine was, however, rejected by Doev.Staple, Lord Kenyon; who held that a satisfied term might 2 Term R. be presumed to have been surrendered. But that an unsatisfied term, raised for the purpose of securing an annuity, might be set up, during the life of the annuitant, as a bar to a plaintiff in ejectment, even though he claim subject to the charge. 684. bourne, 53. In another case, Lord Kenyon directed a jury Doe v. Syto presume, that an old satisfied term was surren- 7 Term R. 2. dered; saying, that he grounded himself upon the doctrine laid down by Lord Mansfield in the case of Lade v. Holford; which was not, as had been sup- Bull. N P. posed, that an ejectment might be maintained upon a mere equitable title, for that would remove ancient 110. ante, c. 2. § 40. Goodtitle v. 47. Doe v. Scott, 11 East. 478.. land-marks in the law, and create great confusion; but that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, where such presumption might be reasonably made, that they had conveyed accordingly; in order to prevent a just title from being defeated by a matter of form. 54. In a subsequent case, he said, that though, under certain circumstances, a jury might presume a satisfied term to have been surrendered; yet if no such presumption was made, and it appeared in a special verdict in ejectment, that such a term was still outstanding in a trustee, who was not joined in bringing the ejectment, the cestui que trust could not recover. 55. Where an old mortgage term of 1,000 years, created in 1727, was recognized in a marriage settlement of the owner of the inheritance in 1751, by which a sum of money was appropriated to its discharge; and no further notice of it was had till 1802; when a deed to which the then owner of the inheritance, and the representatives of the termors were parties, reciting that the term was still subsisting, conveyed it to others, to secure a mortgage: Mr. Baron Thompson, at the trial, and the Court of K. B. upon a motion to set aside the verdict, held that it could not be presumed to have been surrendered against the owner of the inheritance, who was interested in upholding it. |