equity of the "intervening' or subsequent " bona fide" incumbrancer, which argument might be supposed to apply with far greater force against the consolidation of mortgages, as indeed appears from Lord HATHERLEY's opinion in Wellesley v. Mornington, supra. However, as was forcibly said by the Chancellor in that case, when asked to overrule Barnes v. Racster, "the question of principle is not so easy as all that," and he added that if this should ever be done, it must be on very strong grounds.

In Ireland, the decisions proceed upon the other theory; thus, in Hamilton v. Royse, 2 Sch. & Lef. 315 (1805), REDESDALE, Lord Chancellor, held that a purchaser takes subject to all equities to which the vendor was subject, and of which the purchaser had notice, and therefore where one took under a deed containing a recital of judgments affecting the land which he bought, and other land previously settled, he was bound not only with notice of the judgments but of the equities existing under the settlement, to have the settled property exonerated. Lord Chancellor SUGDEN, in Averall v. Wade, Ll. & G. Temp. Sug. 252 (1835), indeed, thought that this case went too far as against a subsequent purchaser, but the two decisions are entirely consistent. In the latter, the owner of several estates being indebted by judgments, settled one of his estates for valuable consideration, and afterwards acknowledged other judgments. It was held that the prior judgment should be thrown altogether on the unsettled estates, and that the subsequent judgment-creditors had no right to make the settled estates contribute. It was argued that, by virtue of the covenant, the grantee of the settled estate was, at the date of the settlement, entitled to have the prior judgments paid by the unsettled estates, and this right could not be divested by subsequent dealings between the settlor and third persons. Lord Chancellor SUGDEN seemed to think that such would be the case, even without a covenant that the estate was free from incumbrance, but put it on the much higher ground, as he called it, of the covenant, which equity would enforce by doing specifically what should have been done, and that no subsequent judgment-creditor could disturb that right, after it had attached, by demanding that

the settled estates should contribute to the prior judgments. In Hartly v. O'Flaherty, Ll. & G. temp. Plunk. 208 (1833), reversing s. c. Beatty, 61, a collector of excise settled his property upon his marriage, then having bought Huntingtower, mortgaged it to Lord Callan. He was then proved a defaulter, and died ten years after. His son, tenant in tail under the settlement, sold a portion of the land to Scott, and mortgaged other portion to Lewis. The crown debt having been satisfied out of Huntingtower (which, by various proceedings under the Irish law, was made subject to it), it was held that the mortgagee had no equity to enforce contribution by Scott and Lewis, who derived title for value under a settlement prior to the mortgage. "If the mortgagor," said Lord PLUNKETT, "sells a portion of his equity of redemption for valuable or good consideration, the entire residue undisposed of by him is applicable in the first instance to the discharge of the mortgage, and in ease of the bona fide purchaser, and it is contrary to every principle of justice, to say that a person afterwards purchasing from that mortgagor, shall be in a better situation than the mortgagor himself with respect to any of his rights." Nor did the absence from the settlement of a covenant against incumbrances alter the equities of the case as between the several persons claiming title as purchasers under different deeds. See also Re Fox, 5 Ir. Ch. 541, and Re Jones, 2 Id. 544.

In Lawder's Estate, 11 Ir. Ch. 346 (1861), Barnes v. Racster, however, was recognised as correct, and was said to establish no new principle, while in Rorke's Estate, 15 Id. 316 (1865), it was intimated that Barnes v. Racster was inconsistent with Hartly v. O'Flaherty, which is undoubtedly so. The priorities in the latter case were the reverse of those in the case at bar. In Rorke's Estate, X. and Y. were mortgaged in 1846, and X. was conveyed in 1856, in consideration of natural love and affection. Y. was mortgaged in 1860, and upon sale thereof, the proceeds were sufficient to pay the first but not the second incumbrance. It was held that the conveyance of X., being voluntary, the mortgagee of Y. was entitled either to contribution or full payment from X. (see as to rights of

volunteers, Dolphin v. Aylward, L. R. 4 H. L. 502; Anstey v. Newman, 39 L. J. Ch. 769).

In Lynch's Estate, 1 Ir. Rep. Eq. 396 (1867), the incumbrances in the order of time were, first, a mortgage of two tracts, second, a judgment registered as a mortgage against one of them, and third, a judgment affecting both. The first lien exhausted the land on which alone the judgment mortgage was a lien, and the other tract was accordingly marshalled in its favor, postponing the latest lien.

In Canada, where the earlier Irish and English cases were both considered, the former were followed, and the theory adopted that the record of the paramount incumbrance was notice to a subsequent part purchaser of equities existing in favor of the intervening liens: Boucher v. Smith, 9 Grant, 347; and further, in accordance with what is believed to be correct theory, that the paramount incumbrancer is not bound in the absence of express notice from a junior, to retain all his security intact: Trust Co. v. Shaw, 16 Id. 446.

In the civil law, a third theory is adopted. If land is mortgaged to a creditor and then sold in parcels at different times to different persons, the first purchaser cannot, by paying the debt, acquire the right to be subrogated to the creditor as against the second or third purchasers, because he can apply the right acquired by subrogation only to that portion of the incumbered property which he himself has purchased. Nor, according to the civil law, has the first purchaser any claim for contribution as against the subsequent purchaser: his only remedy being a personal action against his vendor. It is argued, in support of this doctrine, that a purchaser who pays an incumbrance upon his property does so to secure his own possession, and has no intention to acquire the creditor's right against other property. A subsequent creditor, on the other hand, who pays a prior creditor, does so for the express purpose of acquiring his rights. But the purchaser of incumbered property is not a creditor in that sense. He has merely an action against his vendor. In another sense he is himself a debtor, or rather the property which he purchased is liable for the debt, and he has his choice either to give up that property or to make himself the debtor and to pay the

debt. In this aspect of the case, it seems immaterial whether he stipulates for express subrogation or not, that is, as we may say, whether he pays the debt or takes an assignment of the lien, and such seems the result of the authorities as cited by Dixon on Subrogation, Ch. II., where they are ably considered. The learned author inclines to the opinion that the English rule of ratable contribution, as stated by Judge Story, Equity, § 1233, is founded upon a broader view of the principles of equity than either the civil law or the theory of exoneration in the inverse order of conveyance (as adopted by Chancellor KENT), and claims that it furnishes the only fixed measure for the respective liabilities of the several parties. Certainly the rule of the civil law furnishes no fixed standard; for the burden falls on whom the paramount incumbrancer chooses to place it. It is submitted, however, that the rule here maintained and first laid down in this country by Chancellor KENT both establishes a practical test of liability and avoids the theoretical inconsistency of the English rule.

In Clowes v. Dickenson, 5 Johns. Ch. 235 (1821), it was said that if there are several purchasers in succession at different times, there is no equality, and consequently no contribution between the purchasers to the discharge of the common incumbrance. The last purchaser sits in the seat of his grantor, as the heir represents his ancestor, and must take the land with all its equitable burdens; "it cannot be in the power of the debtor," argued the Chancellor, "by the act of assigning or selling his remaining lands, to throw the burden of the judgment or a ratable part of it, back upon" a first purchaser.

In Clowes v. Dickenson, the rule was in fact stated obiter, but it has been very generally followed in the United States. We propose to consider it as illustrated by the Pennsylvania cases, as they are numerous and conflicting, and besides remarkable in this, that some of them adopt unwittingly the rule of the civil law.

The Supreme Court of Pennsylvania in 1823, then composed of Judges TILGHMAN, GIBSON, and DUNCAN, followed Clowes v. Dickenson in Nailer v. Stanley, 10 S. & R. 450. Nailer and Stanley had successively purchased of Vanleer,

subject to a judgment which was afterwards levied of Stanley's land, who brought assumpsit against Nailer to recover his proportionate share of the value of the land sold. The Court denied the right to recover, and held in addition that the remedy in such case would not be assumpsit but a special action in rem, the judgment in which would be de terris. It was supposed at one time, that this case was overruled by Presbyterian Corporation v. Wallace, 3 Rawle, 109 (1831), but the question was reconsidered in Cowden's Estate, 1 Pa. St. 267 (1845), and the rule of Nailer v. Stanley elaborately vindicated. It had previously been approved in Ziegler v. Long, 2 Watts, 205 (1834), and Taylor v. Maris, 5 Rawle, 51 (1835). In Ramsey's Appeal, 2 Watts, 228 (1834), a mortgagee was substituted, as against the general creditors of the intestate mortgagor, to the right of a prior judgment-creditor whose lien extended to the balance of the debtor's land sold by his administrator, and also to the judgment of a bank which had a lien upon some of its own stock held by the debtor. As this case has often been misunderstood, it is worth while to notice that when Chief Justice GIBSON said that the doctrine was one of mere benevolence and not to be extended to the infringement of legal rights, he meant merely (as is apparent from the illustration used and the case at bar), that the doctrine was not to be employed to infringe the legal right of the paramount incumbrancer to make his money as safely, quickly and conveniently as he pleased, but it was expressly said that the legal rights of all the creditors are "subordinate to equities which affected the debtor whom they collectively represent," that is, that subrogation cannot be invoked as long as the first lien creditor is unsatisfied: Kyner v. Kyner, 6 Watts, 227; Hoover v. Epley, 52 Pa. St. 522; Bank v. Petty, S. Ct. Penn., January 3, 1887; Neff's Appeal, 9 W. & S. 36.

In Pennsylvania, the Act of April 22, 1856, P. L. 534, protects the right of the paramount judgment-creditor, and at the same time affords a remedy before a judicial sale at his instance, for the purchasers, by providing for the payment and assignment of his judgment and execution under the control of the Court: Arna's Appeal, 65 Pa. St. 72; Phelps's Appeal, 98 Id. 546; Milligan's Appeal, 104 Id. 503.