T. 10, CH. 3. PART II. "seised, possessed, or entitled, for any estate or interest whatever." 1166. 23 & 24 Vict. c. 38, s. 1. and putting execution of statutes, sances. It is enacted, however, by the stat. 23 & 24 Vict. c. 38, Registration s. 1, as follows: "Whereas it is desirable to place freein force of hold, copyhold, and customary estates on the same footing judgments, with leasehold estates, in respect of judgments, statutes, and recogni- and recognisances as against purchasers and mortgagees, and also to enable purchasers and mortgagees of estates, whether freehold, copyhold, or customary, or leasehold, to ascertain when execution has issued on any judgment, statute, or recognisance, and to protect them against delay in the execution of the writ: Be it therefore enacted, that no judgment, statute, or recognisance to be entered up after the passing of this Act shall affect any land (of whatever tenure) as to a bona fide purchaser for valuable consideration or a mortgagee (whether such purchaser or mortgagee have notice or not of any such judgment, statute, or recognisance), unless a writ or other due process of execution of such judgment, statute, or recognisance shall have been issued and registered as hereinbefore is mentioned before the execution of the conveyance or mortgage to him, and the payment of the purchase or mortgage money by him: provided always, that no judgment, statute, or recognisance to be entered up after the passing of this Act, nor any writ of execution or other process thereon, shall affect any land of whatever tenure as to a bonâ fide purchaser or mortgagee, although execution or other process shall have issued thereon, and have been duly registered, unless such execution or other process shall be executed and put in force within three calendar months from the time when it was registered." 1167. 27 & 28 Vict. c. 112. And by the stat. 27 & 28 Vict. c. 112, after reciting that it is desirable to assimilate the law affecting freehold, leasehold, and copyhold estates to that affecting purely personal estates, in respect of future judgments, statutes, T. 10, CH. 3. Future etc., not to affect land in execution. and recognisances, it is enacted by s. 1, that "no judg-PART II. ment, statute, or recognisance to be entered up after the passing of this Act shall affect any land (of whatever judgments, tenure) until such land shall have been actually delivered till delivered in execution by virtue of a writ of elegit or other lawful authority, in pursuance of such judgment, statute, or recognisance." And by s. 2, "In the construction of this Act the term 'judgment' shall be taken to include registered decrees, orders of Courts of Equity and Bankruptcy, and other orders having the operation of a judgment; and the term 'land' shall be taken to include all hereditaments, corporeal or incorporeal, or any interest therein; and the term debtor' shall be taken to include husbands of married women, assignees of bankrupts, committees of lunatics, and the heirs or devisees of deceased persons." 1168. Equitable interests in land are within the 1st section; and the order of the Court will be a delivery in execution within the statute (a). 1169. acquired or aliened after the judg Even before the stat. 1 & 2 Vict. c. 110, and down to Freeholds the time of the passing of the stat. 23 & 24 Vict. c. 38, a judgment bound all the freehold hereditaments of which ment. the debtor was seised at the time when the judgment was entered up, or which he afterwards acquired. And no subsequent act of his, not even alienation for valuable. consideration to a purchaser without notice of the judgment, would avoid it; because the purchaser, by searching the register, would have become acquainted with the fact that there was a judgment debt to which the land might become liable; and therefore if he suffered from purchasing an estate of the judgment debtor, he had only himself to blame (b). But an alienation, even in equity alone, prior (a) Hatton v. Haywood, L. R. 9 Ch. Ap. 229. (b) 2 Cruise Dig. T. 14, § 48; Prid. Judgm., 4th ed. 9; Coote T. 10, CH. 3. Freeholds aliened or incumbered before the PART II. to the acknowledgment of a judgment was and still is good against it (a). And the enactment in the stat. 1 & 2 Vict. c. 110, that a judgment "shall operate as a charge," means that it shall so operate subject to any equity affecting the estate of the debtor, such as that of a prior equitable mortgagee, or the right of a purchaser under a contract entered into prior to the judgment (b). 1170. judgment. Relative position of a judgment creditor and a mortgagee. Estates in coparcenary Although a judgment creditor has an actual charge in equity under the stat. 1 & 2 Vict. c. 110, s. 13, yet he is not in the position of a mortgagee, even of an equitable mortgagee (c); for until execution, he has no estate in the land, whether legal or equitable: and even a creditor whose debtor has given a warrant of attorney to acknowledge a judgment for a sum of money borrowed at the time, has not the equity of a person who has strictly lent his money on the faith of the land, as his primary security, in the same way as a mortgagee, who takes a conveyance of an estate in the land, or even a mere deposit of the deeds. And a creditor who obtains a judgment by a suit can still less be said to have lent his money on the faith of the land; for he must be taken to have known that if the debtor aliened the land before judgment it would not affect it. 1171. An equitable mortgagee has priority over a registered subsequent judgment; and if he has made further advances without notice of the judgment, and taken a legal mortgage to secure them, he may tack them to his former advances as against the judgment debt so as to acquire priority in respect of his further advances, by reason of his legal estate (d). 1172. By the old law (which is unaltered on these points), not (a) 2 Cruise Dig. T. 14, § 48. (e) Prid. Judgm., 4th ed. 72; Coote Mortg., 3rd ed. 185, 190; (d) Cooke v. Wilton, 29 Beav. 100. PART II. or in com mon, rents, interests. in joint only lands held in severalty, but also lands held in copar- T. 10, CH. 3. cenary or in common, rent charges, and rents in respect of leases, might be extended; as also might a husband's and marital interests in his wife's lands, whether jure uxoris or as tenant by the curtesy. But prior to the stat. 1 & 2 Vict. c. 110, a judgment against a tenant in tail was only Estates tail. binding on his life interest, and not as against his issue. And if a judgment was obtained against a joint tenant, Estates and he died before execution, it would not bind the sur-tenancy. vivor (a). But the judgment now binds the issue in tail, etc., and the surviving joint tenant, under the 13th section. For the case of issue in tail is expressly provided for by that section and the case of an estate in joint tenancy, though not expressly provided for, appears to be included by the words "any estate or interest whatever." 1173. Prior to the Statute of Frauds, equitable estates, not Equitable being cognisable at common law, were not extendible on a judgment, statute, or recognisance. By s. 10 of that statute, those equitable estates of which the debtor's trustee was seised for him in severalty at the time of execution might be extended. This was held not to apply to equities of redemption, or to equitable interests in terms for : years (b). But a creditor who had sued out execution on` a judgment had a lien in equity on an equitable interest in a term of years, or, if sold, on the proceeds, independently of the stat. 1 & 2 Vict. c. 110 (c). And now (so far as the stat. 23 & 24 Vict. c. 38, s. 1, and 27 & 28 Vict. c. 112, s. 1, do not apply), by the 11th section of that Act, equitable interests in terms for years seem to be (a) Archb. by Prentice, 9th ed. 629, 630; Prid., 4th ed. 5-7, 66 ; Coote Mortg., 3rd ed. 43; 2 Saund. Rep. by Wms. 6th ed. 69 a. (b) Prid. Judgm., 4th ed. 15-17, 65; Coote Mortg., 3rd ed. 29–31; Lewin on Trusts, 3rd ed. 664 5; Archb. by Prentice, 9th ed. 630, (c) Sugd. V. & P., 13th ed. 417; interests. T. 10, CH. 3. PART II subject to execution at law, and by the 13th section they are clearly subject to a charge in equity, from the time of the judgment being entered up (a). But the 11th section does not seem to include, though the 13th section does include, equities of redemption, or other trusts than simple absolute trusts (b). 1174. Power. Judgments entered up Where a person had a fee, subject to a power of appointment given to him by the instrument limiting the fee to him, and he exercised the power, the appointment had the effect of preventing any judgment entered up after the creation of the power from affecting the land as against the appointee; for an appointee is not regarded as taking under the appointment, but as taking immediately under the instrument creating the power, and consequently prior to a judgment entered up before the appointment, but after the deed creating the power. But (except in the case of an appointee who is a purchaser without notice, and who seems to be protected by the stat. 2 Vict. c. 11, s. 5) (c), this consequence of the appointment is avoided by the operation of the stat. 1 & 2 Vict. c. 110, s. 11, in giving the judgment creditor a charge in equity in respect of the power itself, where it is exerciseable for the donee's own benefit without the assent of any other person (d). 1175. Where land is contracted to be sold, judgment entered against the up against the vendor after the contract and before con vendor after contract for sale and before conveyance. veyance will not (as before intimated) bind the land in the hands of the purchaser. But the judgment is a lien on the unpaid part of the purchase money (e). 1176. (a) Lewin on Trusts, 3rd ed. 667 : Sugd. V. & P., 13th ed. 421; Prid. Judgm., 4th ed. 62--3. (b) Coote Mortg.. 3rd ed. 44; Archb. by Prentice, 9th ed. 630; Prid. Judgm., 4th ed. 70. (c) See infra, par. 1202. (d) Sugd. Pow., 7th ed. 33, and V. & P., 13th ed. 429; Prid. Judgm. 33, 66. (e) Prid, on Judgm., 4th ed. 20. 74; Sugd. V. & P., 13th ed. 414, 415; Fisher on Mortg. 420. |