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CH. XVIII.

Scott.

In that case John Scott, the owner in fee of the PART V. property in question, subject to a legal mortgage in fee, by a deed dated February 1807, settled the equity of Scott v. redemption on himself for life, with remainder to his eldest son Bindon for life, with remainder to the first and other sons of Bindon in tail male. By a deed dated June, 1807, John Scott and his son Bindon purported to settle the same equity of redemption on John Scott for life, with remainder to another son William for life, with remainder to the first and other sons of William in tail male.. John Scott died in 1808, Bindon died in 1837, leaving the plaintiff, John Bindon Scott, his eldest son. William went into possession on the death of John Scott and remained in possession until his own death in 1843, when his eldest son John Scott the younger, one of the defendants, went into possession as tenant in tail under the second settlement. Bindon had in 1811 taken a conveyance of the legal estate from the mortgagee, and such legal estate, irrespective of any question of the Statute of Limitations as affecting it, descended on his death to John Bindon as his heir-at-law. John Bindon was also entitled as tenant in tail under the equitable limitations of the first settlement, if valid. Questions arose as to the consideration for and the registration of these settlements, and the substantial point at issue between the parties was whether those claiming under the first or under the second settlement had the higher equities and which settlement therefore prevailed. In 1844 John Bindon, relying on the legal estate got in by his father, brought ejectment in the Court of Queen's Bench in Ireland against John Scott the younger, and failed on the ground that the only title in John Bindon which would be recognised at law was the legal estate acquired by his father, and that such legal title was barred by the statute. John Bindon then filed his bill against John Scott the younger, praying that the trusts of the deed of February, 1807, might be

PART V.

CH. XVIII.

carried into execution and the plaintiff declared entitled to the possession, and that the reconveyance of the mortgage might be declared to have been obtained by Bindon Scott, as a trustee on behalf of the several persons claiming any estate in the land or in the equity of redemption under the deed of February, 1807, or that the defendants might be compelled in any ejectment to be brought by the plaintiff to admit that John Scott the elder was seised in fee simple at the time of the execution of that deed. Brady, L.C., thought it would have been competent for the plaintiff in ejectment to have shown the character of the possession obtained by the defendants, but taking the decision of the Queen's Bench on that point as it stood, he considered it no answer to the plaintiff's claim in a Court of Equity, and being of opinion that the first settlement prevailed, he was prepared to make a decree at once in favour of the plaintiff; but on the application of the defendants, who wished, it seems, to have the question of consideration for the settlement submitted to a jury, he left the plaintiff to try the question at law on the terms of the defendant admitting that, at the time of the execution of the first settlement, John Scott the elder had the legal estate in fee simple. On that assumption it was of course clear that in any event the second settlement operated to pass the life estate of Bindon, and consequently that the possession of William was in every view of the case in accordance with his title until the death of Bindon in 1837, and until that time was not in any sense wrongful or adverse to anybody. It having been ultimately decided at law that the first settlement was made for good consideration, the plaintiff got his decree, and this decision was affirmed on appeal in the House of Lords.

But for the decision of the Court of Queen's Bench in the first ejectment that the legal title of John Bindon was extinguished, this case could be easily distinguished

CH. XVIII.

from that of a mere trespasser obtaining possession of PART V. land of which the limitations are equitable; for, apart from the questions that arose on the statute, any of the parties claiming under either of the settlements of John Scott the elder had a right to file a bill in equity against the person in whom the legal estate was vested and the persons claiming under the other settlement to determine their rights; thus the case was always within the jurisdiction of a Court of Equity. Moreover, as Lord St. Leonards pointed out, until the death of Bindon in 1837, as the property was held according to the equitable rights, the possession of William was the possession of the trustee, and the Court was in fact asked to put the plaintiff in a worse position than he would otherwise have been in, because his father had got in the legal estate, or to decide against the plaintiff because he had too much estate, not because he had too little.

In this view of the case, John Bindon would have succeeded at law, and the case would have had no reference to the point now under discussion. But neither the Court below nor the House of Lords considered itself called upon to reverse the decision of the Queen's Bench, and the judgments in both Courts treated it as standing. This being so, the case appears almost the same as if John Scott the younger had acquired a title by the statute as a perfect stranger, for Bindon Scott, when he took the conveyance of the legal estate, necessarily took it as a trustee for the persons beneficially entitled who claimed through John Scott the father, whoever these might be; that is, according to the decision, as trustee for the persons claiming under the first settlement, who obtained relief and were decreed possession by the Court of Equity, although it was admitted for the purpose of the decision that the title of their trustee was extinguished at law. It is true that the persons claiming under either settlement had always

PART V. CH. XVIII.

a remedy in equity to have their rights determined as against the persons claiming under the other settlement, but their equity was not against the persons claiming under the other settlement alone, but to file a bill against the trustee and those persons for a declaration of rights and consequential relief. Therefore, when the legal right of Bindon as trustee was extinguished, the persons claiming under the first settlement had, it seems, no equity against John Scott the younger alone, unless his title at law, which was acquired by the statute by the extinction of the legal title of Bindon, was subject to the same equities as the legal title of Bindon had been.

Some passages in the judgments in the House of Lords show that this was in the minds of the learned lords in deciding the case. Lord Cranworth, L.C., says (1):-" With regard to the suggestion that this outstanding legal fee acquired by disseisin is to defeat the rights of the parties, I do not concur in the observations which have been made. It is admitted that if the party who, by virtue of the Statute of Limitations, claimed to get the legal fee, had got it by conveyance with notice that the party from whom the conveyance proceeded was a trustee, he could not have taken it except upon the trusts upon which the party from whom he took it held." Lord St. Leonards also, after expressing his opinion that the judgment at law was erroneous, says (2):-"However, it was decided otherwise, and this House is not called on to reverse the decision. Then, as regards the equity, I can have no doubt in recommending your Lordships to hold as a point of law not to be disputed that that legal estate became a trust for all these persons, and that, although at law William Scott might himself, as against the children of Bindon Scott, set up his possession, it was in reality no adverse possession." These passages amount, if not to a decision,

(1) 4 H. L. r. 1082.

4 H. L. p. 1085.

CH. XVIII.

at least to a strong intimation of opinion that a disseisor PART V. who has acquired as against a trustee a title to land by the operation of the statute with notice of the equities to which the land was subject in the hands of the disseisee can only hold it subject to the same equities; and looking at the terms on which the second ejectment in the case referred to was directed to be tried and which were approved by the House of Lords, that case seems authoritatively to suggest a method by which the Courts may prevent the rights of substantial owners being prejudiced by the extinction, through the operation of the statute, of the legal title of a trustee, which, if in existence, would have effectually protected such rights.

When the Court is during the pendency of an action Land in possession in possession of property by a receiver, that possession enures for the benefit of the party to the action ultim- ceiver. ately declared to be entitled, so that during such possession time will run against any person who is a stranger to the suit, though it cannot run in favour of such person (1).

In Penney v. Todd (2) a mortgagee obtained the appointment of a receiver over the mortgaged property, and the mortgagee's solicitor, in a letter to an annuitant whose annuity was charged on the property, stated that the balance of the rents would be paid to the annuitant. Malins, V.-C., held that this letter put the annuitant in the same position as if the receiver had been appointed on his application, and so prevented the statute from running against his claim.

In Smith v. O'Grady (3) an action was brought in Right of 1865 by the executor of an executor for an adminis

(1) Wrixon v. Vize, 3 Dru. & War. 104, 123; Harrisson v. Duignan, 2 Dru. & War. 295; Hunt v. Bateman, 10 Ir. Eq. R. 360, 378; Groom v. Blake, 8 Ir. C. L. R. 428; Re Butler's Estate, 13 Ir. Ch. R. 453.

(2) 26 W. R. 502.

(3) L. R. 3 P. C. 311,

executor to an account

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