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THE

EQUITABLE JURISDICTION

OF

The Court of Chancery.

VOLUME IL

COMPRISING

EQUITABLE ESTATES AND INTERESTS; THEIR NATURE,

QUALITIES, AND INCIDENTS;

IN WHICH IS INCORPORATED, SO FAR AS RELATES

TO THOSE SUBJECTS,

THE SUBSTANCE OF

"MADDOCK'S TREATISE ON THE PRINCIPLES AND PRACTICE

OF THE HIGH COURT OF CHANCERY."

BY

GEORGE SPENCE, ESQ.,
122/11

ONE OF HER MAJESTY'S COUNSEL.

PHILADELPHIA:

LEA AND BLANCHARD.

1850.

LIBRARY OF THE

LELAND STANFORD, JR., BNIVERSITY LAG DEPARTMENT.

A. 59874.

PHILADELPHIA:

T. K. AND P. G. COLLINS, PRINTERS.

PREFACE.

Is the preceding volume, the History of the Court of Chancery has been brought down to the time when its modern jurisdiction was established; and the various heads under which its jurisdiction may be classed, are there stated. The object of the present volume is to exhibit and illustrate the principles upon which the jurisdiction of the Court of Chancery is now exercised, in regard to what are for the purposes of this work designated EQUITABLE ESTATES AND INTERESTS, the meaning of which it may be proper here to explain.

It has appeared to me, as will have been gathered from the former volume, that the jurisdiction of the Court of Chancery may properly be considered under two chief and perfectly distinct heads or divisions-the one embracing the right which the Court of Chancery gives to the enjoyment of property, the legal title to which is rightfully vested in one person with a view to or as subservient to the enjoyment of the beneficial interest by another-the other division comprising those rights constituted or recognized by the Court of Chancery, under which a person is entitled to recover the property or thing itself, the legal estate or interest or possession being vested in another by wrong, as where it has been obtained by fraud or has been conferred by mistake, and also embracing all demands, of whatever kind (other than those included in the first division), which can only be enforced in the Court of Chancery because dependent on principles which are not recognized or so fully recognized in the Courts of Law as in the Court of Chancery, or which, though recognized in the Courts of Law, can only be effectually enforced in the Court of Chancery; and also embracing the protection from improper invasions of the right to property, which the Court of Chancery alone can give, and discovery of facts for the purposes of aiding in the prosecution or defence of rights. I have in this volume designated the first of these divisions, The Jurisdiction of the Court of Chancery in respect of EquiTABLE ESTATES AND INTERESTS; the second, The Jurisdiction in respect of

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EQUITABLE RIGHTS (a),-it is the first great head of jurisdiction which is embraced in the volume which is now offered to the profession.

The course which I have adopted, in treating of Equitable Estates and Interests, is as follows: After first considering how the jurisdiction of the Court of Chancery is made to operate in respect of Property situate out of its jurisdiction, I have proceeded to take a general view of Equitable Estates and Interests in property real and personal created by ExPRESS TRUST; stating the general rules as to the Creation of Trusts; the NATURE OF THE OFFICE OF TRUSTEE, and the CHARACTER OF THE CESTUIS QUE TRUST; distinguishing a CONSTITUTED or complete trust from an incomplete trust or a TRUST IN FIERI; and devoting a distinct Section to those trusts which are created by PRECATORY OR RECOMMENDATORY WORDS. POWERS IN THE nature of Trusts are then noticed; and the general subject of RESTRAINTS ON ALIENATION, as applicable to interests given by way of trust, is introduced. Considering how often the doctrine as to REMOTENESS OR PERPETUITY comes under discussion in regard to trusts, I have devoted a distinct Chapter to that subject. I have then proceeded to consider the subject of EXECUTORY OR DIRECTORY TRusts, as distinguished from TRUSTS EXECUTED; and to state the general rules in regard to LIMITATIONS OF PERSONAL ESTATE in reference to where an absolute interest is taken under the limitations; introducing the subject of limitations of Personal Estate to go according to the limitations of Real Estate, and some incidental topics. I have then devoted a Chapter to TRUSTS FOR ACCUMULATION.

I have next proceeded to take a general view of TRUSTS ARISING BY OPERATION OF LAW, not belonging to the second head of jurisdiction, which are known by the several designations of Implied, Presumptive, and Constructive Trusts, including the doctrine as to Resulting Trusts, and Trusts arising from the maxim that "What ought to be done is considered as done;" the CONVERSION of real estate into personal, and personal into real, and some incidental topics.

Having thus noticed the several kinds of trusts, and having taken a view of the general doctrines applicable in some degree to all or most of the trusts which are created by the parties, I have proceeded to discuss in some detail the several descriptions of trusts and charges in the nature of trusts created by the parties which are commonly found in Wills and Marriage Settlements and in Trust Deeds, in the following order:

First, CHARGES OF DEBTS BY WILL, more especially in reference to

(1) I have found it expedient, in this volume, to vary, in some respects, the arrangement under which the different subjects of Equitable Jurisdiction are treated of in the first volume.

PREFACE.

the Statutes 1 Will. IV. c. 47, and 3 & 4 Will. IV. c. 104, and here what amounts to a charge of debts is considered: CHARGES OF LEGACIES on real estate, and the general doctrines applicable to charges of debts and legacies by will, particularly the EXEMPTION and EXONERATION of personal estate from the payment of debts and legacies, are next considered; and then TRUST DEEDS FOR THE PAYMENTS OF DEBTS are introduced. I have next proceeded to a consideration of SALES of property real and personal under trusts or charges for payment of debts and legacies, adverting to the obligation of the purchaser to see to the APPLICATION OF THE PURCHASE-MONEY. The subject of PORTIONS, including the doctrines as to Double Portions and SATISFACTION, is discussed in a separate Section. Gifts to parents for the MAINTENANCE of their children are next considered; and then, the trusts in favor of MARRIED WOMEN, which are usually introduced into wills and marriage settlements, including the SEPARATE-USE CLAUSE and provisions against ANTICIPATION; and here THE WIFE'S EQUITY TO HAVE A SETTLEMENT is introduced. Some other doctrines in regard to the trusts usually found in wills and deeds are then considered; for instance, the respective RIGHTS OF THE TENANT FOR LIFE AND REMAINDERMAN, and more especially in regard to a RESIDUE GIVEN BY WILL TO BE ENJOYED BY SEVERAL PERSONS IN SUCCESSION, and the APPORTIONment of Rents AND DIVIDENDS; then follow the doctrines of the Court of Chancery in regard to ELECTION, SATISFACTION, and PERFORMANCE.

Following the scheme proposed, I have next proceeded to consider that kind of equitable estate or interest which is enjoyed by a mortgagor whose estate is forfeited at law, and which is called the EQUITY of REDEMPTION. In this Chapter, I have endeavored to give a general view of the doctrines of the Court of Chancery in regard to MORTGAGES, both as respects the mortgagor and the mortgagee; including the mode of proceeding to enforce REDEMPTION, and to FORECLOSE the equity of redemption, or for a SALE-the necessary PARTIES to suits for redemption and foreclosure-LENGTH OF TIME as a bar to redemption or foreclosure -PRIORITIES and TACKING-and NOTICE, Fraud, and Negligence, as affecting priorities. I have then devoted a Section to the subject of MORTGAGES OF STOCK and PLEDGES of personal chattels; and another Section to the subject of EQUITABLE MORTGAGES by written agreement and by the DEPOSIT OF DEEDS: and here the subject of LIENS generally is introduced, and particularly THE LIEN OF A SOLICITOR on the deeds. and papers of his client, and on the funds in a suit. I have next proceeded to describe the mode in which THE ACCOUNT is taken between. the mortgagor and mortgagee, particularly where the mortgagee is in possession, introducing the subject of ANNUAL RESTS and of COSTS.

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