BURGESS v. WHEATE. That though by the attainder of treason, the estate was forfeited, yet it was liable to redemption in the hands of the Crown. What does he hold in Sandy's Case? that a trust estate did not escheat on the attainder of cestuy que trust for felony. The consequence is, that if the trustee is attainted for felony, or die sans heir, the estate would escheat to the Crown. There is a distinction between the cases, a double difference between this and Sandy's Case. One is escheat for felony, the other forfeiture for treason: The one a trust only, the other an equity of redemption. The distinction between an escheat and a forfeiture can't be disputed. The other distinction between a mere trust and an equity of redemption is rationally taken, by Hale, in Pawlett's Case, Hardr. 467. I conceive a mortgage is not a mere trust, but a title in equity.—Id. 469, he says, a trust is collateral to the land, and created by contract of the party; and therefore one that comes in en le post shall not be liable to it: But the power of redemption is an equitable right inherent in the land, and binds all persons in the post or otherwise. In this Lord Hale is not singular; Lord Nottingham (MS.) says, an equity of redemption charges the land, not a trust; therefore, though for this particular purpose (as to allowing husband to be tenant per curtesy) there is no difference between a trust and an equity of redemption; yet it does not [146] follow that they run quatuor pedibus. It hath been hinted, that Lord Nottingham seemed to think it deserved further consideration. But I think he rather approves the case. His words are (MS.), "In Sir George Sandy's Case (whose son being cestuy que trust of a term, and attainted of felony) 'twas resolved that the term was not forfeited, because inheritance not forfeited. Unde sequitur, where inheritance is forfeited, term is forfeited. I therefore think Sir George Sandy's Case is unimpeached." But then 'tis endeavoured to bring the lord within the trusts of the deed of 1718. There's no trust expressed or declared for him. Is there any implied or resulting to him? The trust of the legal estate can only be co-extensive with that legal estate. So that I think Mrs. Harding had not power to create a trust to give the lord a right after her heirs. Her interest ends where his begins. She could not create a trust, that could not be executed by a legal limitation. If there had been a limitation to the lord in default of her heirs, it would have been void, and the lord would have taken by his own title, which is paramount to that, and not by her title. The intent is to prevail, it is said; could Mrs. Harding be supposed to have the lord in view? The legal estate may be extended to answer the purposes of the trust declared. There can be no trust, where there is not a legal estate created co-extensive with it; and a trust can't be executed, where no intent appears to create it, save by operation of law; and a trust can't result by operation of law, but for those for whom the trust might have been declared by the party creating the trust. The deed BURGESS บ. WHEATE. expresses no trust for the lord, therefore the Court can't execute one. But 'tis said, the limitation to trustees is in trust for her and her heirs, and subject to her appointment: She making none, the lord is to be considered as heir or appointee. That before the power of alienation, the lord had a strict reversion; but since 'tis become a kind of heirship or assignment. *This is inverting the law itself; for he claims in the post, not [147] in the per (e): it makes the lord hold of the tenant, not the tenant of the lord. Can the power of alienation give the lord a greater power than he had before? Before the power of alienation, tenant or heir took by purchase, as a mere usufructuary, and the lord took what the ancestor left. Before, as well as after the power, the lord and tenant had the whole interest, and as the tenant's power over the feud increased, the lord's diminished. I admit the lord by escheat is called in some places quasi hæres, but 'tis always to his prejudice where he is so said to take, and never to his benefit. Bract. 23 a. Item cum revertitur terra, non pro defectu hæredis, sed propter impedimentum perpetuum, habebitur loco hæredis ad warrantizandum, &c.: which shews, that before the power of alienation the tenant could not demise, but the lord was obliged to warrant to the lessee as much as the heir. Bro. Esch. 33, is a very obscure case, and not to be found in the Year-book. Where the Crown made a grant to A. for life, or to the heirs of his body, the King, on death of tenant for life, or in tail, shall be in without office, and whether he enters or not, as being heir of the person who died seised. So far is the lord from being entitled to a benefit as heir or assignee, that he is on the contrary excluded from privileges that the heir or assignee is entitled to (f). At common law only feoffor or his heirs could enter for breach of condition, grantee or assignee could not; therefore the stat. Henry 8 (g), was made to cure that defect, and give the grantee a right of entry, Co. Litt. 215 b; yet the lord could not claim that benefit under the statute. So that so far from the lord's taking benefit as heir or assignee, he is distinguished from both, and excluded from the privilege which the heir had by common law, and the assignee by statute. Yet 'tis said, the lord by escheat may distrain for rent reserved to A. and his heirs, Co. Litt. sect. 348, as in the place of heir, and so has privileges equal with the heir. I can't admit this right. of distraining is a privilege; for his right of distraining is not as heir, but as incident to his reversion; and the same book [148] says, the lord can't enter, because he is not heir. And this answers another observation, that the lord may take the benefit of a term limited to the owner and his heirs; but the answer is, he don't take it as heir; but where he takes the inheritance as escheated, he takes the term as attendant upon, and following the fate of the inheritance; according to Sandys' Case, Pawlett's Case, and Lord Jeffries's determination. (e) See post, p. 179, n. (y). (f) See Fairclaim v. Earl Gower, post, 357. (g) 32 H. 8, c. 34: see Webb v. Russell, 3 T. R. 393, Vernon v. Smith, 5 B. & A. 10. VOL. I. I BURGESS WHEATE. But if the lord is not within the reach of the deed of 1718, yet it is said, that this is but a mode of conveyance for a particular purpose, to give a feme covert a power to dispose of her estate if she pleased; and as it has never answered that purpose, 'tis to be considered as if it had never existed; and if so, then the estate would have escheated on her death sans heir. This is contrary to what the heirs on the part of the mother insisted on. The maternal heir is for having another deed, i. e. a supposed re-conveyance from the trustee to Mrs. Harding. The Court can do neither; but 'tis begging the question to say, that the deed of 1718 shall be laid out of the case. Voidable deeds shall not be laid out of the case, but shall bind the escheat; 2 Roll. R. 403; 7 Rep. 7 b. An infant's deed shall bind against the lord; and that in Rolle was a lease by the husband of the wife's land, without her joining. She died sans heir. Question, whether it should bind the lord's escheat; and it was held that it did. So for the purpose of binding the lord in escheat, deeds have been held good against him, that would have been void in other respects. The deed can't be laid out of the case. The effect of it is such, as legally to exclude the lord while there is a tenant. If the escheat is legally gone, where is the equity to revive or restore it? Is it such a right as should induce the Court to go out of its way in its support? Escheats are become notional. and positive, and the reason a good deal ceased, since the tenant's power of alienation, and the heir's becoming dependent on the ancestor; why should not a rent escheat as well as a trust? The first lies in tenure as well as the last. At least, [149] why should not the lord have the rent in equity? Every *body knows the land shall be discharged of the rent, rather than the lord shall have it (h). The equity is as good in one case as in the other. I admit most of our law as to its foundation is positive; the rules of descent are positive. The instances put from the feodal law deserve no favour, in preferring the uncle to the father as heir to the son, and preferring the lord by escheat rather than one of the half blood. If the uncle in the one case, and the lord in the other, has a legal right, equity will not take it away. But when any of these rights are gone at law, I think a Court of equity can't interpose to restore them. Arguments are used ab inconvenienti. They say the consequences will be mischievous; as if one is convicted of felony, whose estate is in trustees, the cestuy que trust forfeits for felony and is restored by pardon (i): shall the trustee hold both against the Crown and the cestuy que trust? Whether he can keep it against the Crown is the case in question. But the (h) If a man seised in fee of a fair, market, common, rent-charge, rent-seck, warren, corrody, or any other inheritance, that is not holden, and is attainted of felony, the King shall have the profits of them during his life: but after his decease, seeing the blood is corrupted, they cannot descend to the heir, nor can they escheat, because they be not holden; they perish and are extinct by act of law; 3 Inst. 21; Hardr. 496. (i) See Toomes v. Etherington, 1 Wms. Saund. 361; 2 Hawk. P.C. c. 37, s. 54. detaining it from the Crown, where the cestuy que trust has no relation, is different from detaining it against the cestuy què trust himself. If trustee should set up such a title, 'tis a case that never yet happened. If it did, I should think Courts of equity would go as far as they could, and I think trustee estopped against setting up that claim (k). BURGESS v. WHEATE. Then it was said, suppose mortgagor die without heir, shall the mortgagee hold the estate absolutely? And if he demands his money too against the personal representative, shall he have both land and money? If the mortgagor dies without heir or creditor, I see no inconvenience if the mortgagee held it absolutely. In the case of a forfeiture for treason, 'tis certain the Crown might redeem, as in Sir Salathiel Lovel's Case (7). And as to the supposition, that the mortgagee may demand his money too; that must be where the mortgagor dies without heir; therefore the demand must be against the personal representatives by virtue of some bond or covenant for payment of the money. And if the mortgagee took his remedy against the personal representative, I think the Court would compel the mortgagee to reconvey; not to the lord by escheat, but to the personal representative, and if necessary would consider the estate re*conveyed as coming in lieu of the personalty, and [ *150 ] as assets to answer even simple contract creditors. Under these circumstances, where is the great inconvenience? (m). Another case is put of a purchase, and the money paid by the purchasor, who dies without heir before any conveyance. Here 'tis said, if the lord could not claim the estate, and pray a conveyance, the vendor would hold the estate he has been paid for, and keep the money too. I think the lord could not pray a conveyance; to say he could, is begging the question. And as to the vendor's keeping both the estate and the money, 'tis analogous to what equity does in another case; as where conveyance is made prematurely, before money paid; the money is considered as a lien on that estate in the hands of the vendee (n). So where money was paid prematurely, the money peal to the House of Lords, the Attorney- So (m) See Mr. Coventry's note to his edition of Powell on Mortgages, vol. i. c. x. p. 253. (n) Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272; Mackreth v. Symmons, 15 Ves. J. 329; where Lord Eldon, C., says, that the doctrine of Sir Thomas Clarke is very sensible; Id. 353; [ BURGESS v. WHEATE. would be considered as a lien on the estate in the hands of the vendor, for the personal representatives of the purchasor; which would leave things in statu quo. But now, what are the inconveniences on the other side? This interposition prayed would change the law, and that too in the case of a legal tenant. It would give the lord a double chance. For this determination would be a precedent. for an equitable escheat on the death of cestuy que trust, and there are other cases to warrant escheat on the death of trustees, unless the Court should interpose. And that lets in another objection; that 'tis bringing both into a Court of equity. If the inconveniences were greater than they are, and not overbalanced by those on the other side, yet I think arguments ab inconvenienti ought not to prevail, but where the case is doubtful. In Pawlett's Case, inconveniences appeared to Lord Hale, that the tenure would be destroyed by the estate's accruing to the Crown by the forfeiture: but did he object to the right of redemption on that account, or that any recompence should be made to the Crown in lieu of it? In the present case, I don't think the balance so near. The lord takes escheat subject to particular incumbrances, and even to the devise of the tenant. If she had contracted debts to the value, and the estate had been extended, or if tenant devised it, the lord *151 ] * could not complain. Here she has put an end to her own tenancy to prevent the estate from escheating by her death without heir. I am for following the analogy of the legal escheat, as well as of the legal descent, and for pursuing legal principles; because the law gives the escheat only for want of a tenant, equity must do the same. If it did [not], 'twould be making law, instead of administering equity. I give no opinion on the right of the trustee; I give my opinion, that neither the maternal heir nor the Crown has any right. If the trustee came into a Court of equity, I might be of opinion that he had no right (o); but have to take his satisfaction out of the purchased gatee or creditor may stand in his place, (0) See Williams v. Lord Lonsdale, Ves. J. 752. |