CH. 4, s. 1. have power is no sufficient devise. of Chancery, to succeed to the trusteeship vested in such PT. II. T. 9, devisee or devisees in trust as aforesaid" (s. 15). 968. "If any testator who shall have created such a charge as Executors to is described in the fourteenth section shall not have de- of raising money, etc., vised the hereditaments charged as aforesaid in such terms where there as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in such will (if any) shall have the same or the like power of raising the said moneys as is herein before vested in the devisee or devisees in trust of the said hereditaments, and such power shall from time to time devolve to and become vested in the person or persons (if any) in whom the executorship shall for the time being be vested; but any sale or mortgage under this Act shall operate only on the estate and interest, whether legal or equitable, of the testator, and shall not render it unnecessary to get in any outstanding subsisting legal estate" (s. 16). 969. or mort "Purchasers or mortgagees shall not be bound to inquire Purchasers whether the powers conferred by sections fourteen, fifteen, gages not and sixteen of this Act, or either of them shall have been inquire as to duly and correctly exercised by the person or persons acting in virtue thereof" (s. 17). 970. powers. 15, and 16, certain nor to other "The provisions contained in sections fourteen, fifteen, Sections 14, and sixteen shall not in any way prejudice or affect any not to affect sale or mortgage already made or hereafter to be made, sales and under or in pursuance of any will coming into operation extend to before the passing of this Act, but the validity of any such devises. sale or mortgage shall be ascertained and determined in all respects as if this Act had not passed; and the said several sections shall not extend to a devise to any person or persons in fee or in tail or for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do" (s. 18). 971. Pr. II. T. 9, CH. 4, s. 1. Mode of enforcing a trust or charge. Charge of annuities. Whether real estate is subject to debts or legacies, or both, by way of trust or of charge, or by way of legal power in the nature of a trust, the estate can only be turned into money, and the proceeds distributed, in case of dispute or difficulty, through the agency of a Court of Equity (a). 972. Where the estate is charged with annuities, it is not the course to discharge the lands: they will be charged in the hands of a purchaser (b). 973. PT. II. T. 9, CH. 4, s. 2. Definition. SECTION II. Of Liens (c). Liens are either legal or equitable. 974. A legal lien is the right of a person to retain property Two kinds, of which he has the lawful possession, until a debt due to him has been satisfied (d). 975. Legal. Equitable. Lien of a solicitor for costs. An equitable lien is a hold upon property, for the satisfaction of a claim attaching thereto, under an express charge or contract or constructive trust (e). 976. Liens in equity are wholly independent of the possession of the property. 977. The lien of a solicitor on the deeds, books, and papers of his client, for his costs, is not like a lien arising in the case of contract: it has not the character of a pledge or a mortgage; but it is merely a right to withhold the deeds, books, and papers which have come into his possession as solicitor, and not a right to enforce his claim against the (a) 2 Spence's Eq. Jur. 365. (c) On this subject the reader is referred to Coote on Mortgages, 3rd ed., Chap. 15, 19; Smith's Manual of Common Law, 9th ed., and authorities there cited. (d) Sm. Merc. Law, 6th ed. 563, 570; Cross on Lien, 2, 30—8. (e) Smith's Executory Interests annexed to Fearne, § 74. CH. 4, s. 2. client. It prevails as against the representatives of the P. II. T. 9, client, but it is only commensurate with the right of the client, and is subject to the rights of third persons as against him. Hence a prior incumbrancer cannot be affected by it; and when a mortgage is paid off, the solicitor of the mortgagee cannot retain the deeds (a). And so where a purchaser makes a mortgage, and afterwards the purchase is completed, and the deeds are delivered to the solicitors of the purchaser, who have no notice of the mortgage, their lien either for their general bill of costs or for their costs relating to the conveyance, cannot prevail against the mortgagee (b). But a solicitor has a lien upon a fund realised in a suit, for his costs of the suit or immediately connected with it; and this is a lien which he may actively enforce (e). A solicitor's lien, however, is not a general lien on a fund in Court, though brought in by his exertions, but only on what, on the issue of the suit may belong to his own client (d). [But it has been decided in recent cases, that the charge to which, by section 28 of the stat. 23 & 24 Vict. c. 127, the Court is empowered to declare a solicitor entitled, upon property recovered or preserved by his instrumentality, in an action, for taxed costs, charges, and expenses of or in reference to the action, extends in the case of a solicitor not a mere volunteer, but bonâ fide employed by some person, to the whole property so recovered or preserved, independently of the questions who the person is to whom such property (a) 2 Spence's Eq. Jur. 800, 801; Francis v. Francis, 5 D. M. & G. 108; Turner v. Letts, 7 D. M. & G. 243; see Watson v. Lyon, Id. 288; Ex parte Fuller, In re Long, L. R. 16 Ch. D. 617; Morgan and Wurtzburg's Law of Costs. (b) Pelly v. Wathen, 1 D. M. & G. 16. VOL. I. (c) 2 Spence's Eq. Jur. 802; Haynes v. Cooper, 33 Beav. 431; Shaw v. Neale, 6 H. L. Cas. 581; Owen v. Henshaw, L. R. 7 Ch. D. 385; Pilcher v. Arden, In re Brook, L. R. 7 Ch. D. Ap. 318. (d) Verity v. Wyld, 4 Drew. 427. EE CH. 4, s. 2. P. II. T., belongs, or whether the solicitor was employed by that person, or whether that person is an infant (a).] 978. If one of two joint tenants of a lease renew for the benefit of both, he will have a lien on the moiety of the other joint tenant for a moiety of the fines and expenses (b). 979. Lien of a joint tenant; of a trustee; of annuitants. Liens under Covenants to settle or charge. A trustee is entitled to a lien on the trust estate for his expenses (e); [also for the costs and expenses with interest, of the renewal of a lease (d).] 980. Annuitants scheduled to a trust deed do not acquire any lien upon the trust estate, unless they are made parties to the deed (e). 981. A covenant for valuable consideration, to charge or settle particular lands, or all the present estates of the covenantor, will create a lien on that property. And the parties entitled to the benefit of the covenant take transmissible interests, though they die before the time fixed for the execution of the covenant. And it is the same with a covenant to settle or charge all lands to be acquired during a certain time (f). 982. (a) Bonsor v. Bradshaw, 30 L. J. (Ch.) 159; Bailey v. Birchall, 2 H. & M. 371; Pinkerton v. Easton, L. R. 16 Eq. 490; Bulley v. Bulley, L. R. 8 Ch. D. 479; Greer v. Young, L. R. 24 Ch. D. (Ap.) 545; Charlton v. Charlton, 31 W. R. 237. (b) 2 Spence's Eq. Jur. 803; Ex parte Grace, 1 B. & P. 576; and see Saunders v. Dunman, L. R. 7 Ch. D. 825. (c) 2 Spence's Eq. Jur. 803. (d) Holt v. Holt, 1 Ch. Cas. 190; and see Maddy v. Hale, L. R. 3 Ch. D. (Ap.) 327. (e) 2 Spence's Eq. Jur. 804. (f) Coote Mortg., 3rd ed. 227 : see also Mornington v. Keane, 2 D. & J. 292. TITLE X. OF ABSOLUTE AND DEFEASIBLE INTERESTS; AND PARTICU- CHAPTER I. OF ABSOLUTE AND DEFEASIBLE INTERESTS. PART II. interests. ABSOLUTE interests (as opposed not to limited or partial T., CH.1. interests, but to defeasible interests) are interests which Definition are not created as securities, nor subject, by the terms in of absolute which they are limited, to any liability to determine at all, or not before the time when they would expire by force of the general limitation, express or implied (a). 983. defeasible Defeasible interests are interests which are created as Definition of securities, or are liable to be divested by an action, or are interests. subject, by the terms in which they are limited, to a liability to determination, before the time when they would expire by force of the general limitation, express or implied (a). 984. several kinds. These are of several kinds :- -1. An interest which is Their subject to an express condition subsequent properly so called, or to a defeasance (b). 2. An interest which is subject to a mixed condition (e). 3. An interest which is subject to a special or collateral limitation (a). 4. An interest under a limitation in default of appointment, which confers a vested interest, subject to be divested by an appointment. 5. Interests gained by abatement, intrusion, disseisin, discontinuance, and deforcement, where the rightful owner has a right of action for recovery of his estate (d). 6. Interests by way of security. 985. (a) See par. 164, supra. (b) See par. 154, supra. (c) See par. 157, supra. (d) See infra, Part 3 Tit. 6, Ch. 1. |