that enables him, by process of law, to enforce the performance of this duty. The other creditors cannot complain, for the debt has in truth not been paid, because not paid by the one ultimately bound, but by others, who became his unwilling creditors in due course of law. But if there should be any one who, by any rule of strict law, or in equity and good conscience, stands on higher ground, or for any reason has a better right, he will not be displaced, or his right disturbed; for that is the essence of the doctrine. See Pott v. Nathans (1841) 1 Watts & S. (Pa.) 155, 37 Am. Dec. 456; Eddy v. Traver (1837) 6 Paige (N. Y.) 521, 31 Am. Dec. 261; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, and 10 Am. St. R. 635, notes; Sheld. Subr. (2d Ed.) § 137; Id., p. 209, § 140; 24 Am. & Eng. Enc. Law, p. 189; Thomas v. Stewart (1888) 117 Ind. 50, 18 N. E. 505, 1 L. R. A. 715; Crumlish's Adm'r v. Improvement Co., 38 W. Va. 390, 18 S. E. 456, and 23 L. R. A. 120, note 7, 45 Am. St. Rep. 872; Dugger v. Wright (1888) 51 Ark. 232, 11 S. W. 213, 14 Am. St. Rep. 48. It would answer no useful purpose to take up the testimony and show that it justifies the decree complained of. The fair conclusion to be drawn is that the deed of September 1, 1880, from defendant Moore to E. F. Piggatt, conveying the tract of land of 25 acres in the bill and proceedings mentioned, was made by Moore to hinder and delay his creditors; and that Piggatt took it, was holding it for him, on some sort of secret trust, the full terms of which do not appear. But Moore continued to occupy and use the land as his own, as he had always done, without the payment of any rent; and after E. F. Piggatt's death this tract of 25 acres was, by reason thereof, treated as not belonging to his estate, and was omitted when partition came to be made of his lands among his heirs. Therefore the decree complained of is affirmed. مل V. Equal Equities, First in Order of Time Must Prevail' RICE et al. v. RICE et al. (High Court of Chancery, 1853. 2 Drew. 73, 2 Eq. R. 341, 23 L J. Ch. 289, 2 W. R. 139, 61 Eng. Reprint, 646.) 8 The VICE-CHANCELLOR [Sir R. T. KINDERSLEY] took time to consider, and on the 12th January delivered the following judgment: The question to be decided in this case is whether the equitable interest of the plaintiffs in respect of the vendor's lien for unpaid pur 7 For discussion of principles, see Eaton on Equity (2d Ed.) § 18. chase money is to be preferred to the equitable interest of the defendant Ede as equitable mortgagee. What is the rule of a court of equity for determining the preference as between persons having adverse equitable interests? The rule is sometimes expressed in this form, "As between persons having only equitable interests, qui prior est tempore potior est jure." This is an incorrect statement of the rule, for that proposition is far from being universally true. In fact not only is it not universally true as between persons having only equitable interests, but it is not universally true even where their equitable interests are of precisely the same nature, and in that respect precisely equal, as in the common case of two successive assignments for valuable consideration of a reversionary interest in stock standing in the names of trustees, where the second assignee has given notice and the first has omitted it. Another form of stating the rule is this, "As between persons having only equitable interests, if their equities are equal, qui prior est tempore potior est jure." This form of stating the rule is not so obviously incorrect as the former; and yet even this enunciation of the rule (when accurately considered) seems to me to involve a contradiction, for, when we talk of two persons having equal or unequal equities, ⚫ in what sense do we use the term "equity?" For example, when we say that A. has a better equity than B., what is meant by that? It means only that, according to those principles of right and justice which a court of equity recognizes and acts upon, it will prefer A. to B., and will interfere to enforce the rights of A. as against B., and therefore it is impossible, (strictly speaking) that two persons should have equal equities, except in a case in which a court of equity would altogether refuse to lend its assistance to either party as against the other. If the court will interfere to enforce the right of one against the other on any ground whatever, say on the ground of priority of time, how can it be said that the equities of the two are equal? i. e., in other words, how can it be said that the one has no better right to call for the interference of a court of equity than the other? To lay down the rule therefore with perfect accuracy, I think it should be stated in some such form as this, "As between persons having only. equitable interests, if their equities are in all other respects equal, priority of time gives the better equity, or qui prior est tempore potior est jure." I have made these observations, not of course for the purpose of a mere verbal criticism on the enunciation of a rule, but in order to ascertain and illustrate the real meaning of the rule itself, and I think the meaning is this, that, in a contest between persons having only equitable interests, priority of time is the ground of preference last resorted to, i. e., that a court of equity will not prefer the one to the other, on the mere ground of priority of time, until it finds upon an examination of their relative merits that there is no other sufficient ming ground of preference between them, or, in other words, that their equities are in all other respects equal, and that, if the one has on other grounds a better equity than the other, priority of time is immaterial. In examining into the relative merits (or equities) of two parties having adverse equitable interests, the points to which the court must direct its attention are obviously these, the nature and condition of their respective equitable interests, the circumstances and manner of their acquisition, and the whole conduct of each party with respect thereto. And in examining into these points it must apply the test, not of any technical rule or any rule of partial application, but the same broad principles of right and justice which a court of equity applies universally in deciding upon contested rights. Now in the present case each of the parties in controversy has nothing but an equitable interest; the plaintiffs' interest being a vendor's lien for unpaid purchase money, and the defendant Ede having an equitable mortgage. Looking at these two species of equitable interests abstractly, and without reference to priority of time, or possession of the title deeds, or any other special circumstances, is there anything in their respective natures or qualities which would lead to the conclusion that in natural justice the one is better, or more worthy, or more entitled to protection than the other? Each of the two equitable interests arises out of the forbearance by the party of money due to him. There is, however, this difference between them, that the vendor's lien for unpaid purchase money is a right created by a rule of equity, without any special contract. The right of the equitable mortgagee is created by the special contract of the parties. I cannot say that in my opinion this constitutes any sufficient ground of preference, though, if it makes any difference at all, I should say it is rather in favor of the equitable mortgagee, inasmuch as there is no constat of the right of the vendor to his lien for unpaid purchase money until it has been declared by a decree of a court of equity, whereas there is a clear constat of the equitable, mortgagee's title immediately on the contract being made; but I do not see in this any sufficient ground for holding that the equitable mortgagee has the better equity. So far, then, as relates to the nature and quality of the two equitable interests abstractedly considered, they seem to me to stand on an equal footing; and this I conceive to have been the ground of Lord Eldon's decision in Mackreth v. Symmons, 15 Ves. 329, where, in a contest between the vendor's lien for unpaid purchase money and the right of a person who had subsequently obtained from the purchasers a mere contract for a mortgage, and nothing more, he decided in favour of the former, as being prior in point of time. If, then, the vendor's lien for unpaid purchase money, and the right of an equitable mortgagee by mere contract for a mortgage, are equitable interests of equal worth in respect of their abstract nature and quality, is there anything in the special circumstances of the present case to give to the one a better equity than the other? One special circumstance that occurs is this, that the equitable mortgagee has the possession of the title deeds. The question therefore arises, between two persons having equitable interests of equal worth, does the possession of the title deeds by one of them give him the better equity? In Foster v. Blackstone, 1 Myl. & K. 307, Sir John Leach, M. R., says, "A declaration of trust of an outstanding term, accompanied by a delivery of the deeds creating and continuing the term, gives a better equity than a mere declaration of trust to a prior incumbrancer." That is a case in which the two parties have equitable interests in the term of precisely the same nature, viz., a declaration of trust of the term without an actual assignment; and there the delivery of the deeds to the subsequent incumbrancer gives him the better equity. To the same effect is the decision in Stanhope v. Lord Verney, according to Lord St. Leonards' view of it, as reported in Butl. Co. Litt. p. 290, 1 Mylne & K. note 1, § 15 (which seems a more satisfactory report than that in 2 Eden, 81). Lord St. Leonards, 3 Sugd. Vend. 218, states it thus, "In Stanhope v. Earl Verney, Lord Northington held that a declaration of trust of a term in favour of a person was tantamount to an actual assignment, unless a subsequent incumbrancer, bona fide and without notice, procured an assignment, and that the custody of the deeds respecting the term, with the declaration of the trust of it in favour of a second incumbrancer, was equivalent to an actual assignment of it, and therefore gave him an advantage over the first incumbrancer, which equity could not take from him." We The same doctrine appears to be recognized by Lord Eldon in Maundrell v. Maundrell, 10 Ves. 271, where he says, "It is clear, with regard to mortgagees and incumbrancers, that if they do not get in the satisfied term in some sense, either taking an assignment, making the trustee a party to the instrument, or taking possession of the deed creating the term, that term cannot be used to protect them against any person having mesne charges or incumbrances," implying that taking possession of the deed creating the term would confer on a subsequent incumbrancer such right of protection by means of the term. have here, then, ample authority for the proposition, or rule of equity, that as between two persons whose equitable interests are of precisely the same nature and quality, and in that respect precisely equal, the possession of the deeds gives the better equity; and, applying this rule to the present case, it appears to me that, the equitable interests of the two parties being in their nature and quality of equal worth, the defendant having possession of the deeds has the better equity, and that there is, therefore, in this case, no room for the application of the maxim, Qui prior est tempore potior est jure, which is only ap plicable where the equities of the two parties are in all other respects equal. I feel all the more confidence in arriving at this conclusion inasmuch as it is in accordance with the opinion expressed by Lord St. Leonards in his work on vendors and purchasers; and I have no doubt that in Mackreth v. Symmons, if the equitable mortgagee had, in addition to his contract for a mortgage, obtained the title deeds from his mortgagor, Lord Eldon would have decided in his favour. I must, however, guard against the supposition that I mean to express an opinion that the possession of title deeds will in all cases and under all circumstances give the better equity. The deeds may be in the possession of a party in such a manner and under such circumstances as that such possession will confer no advantage whatever. For example, in Allen v. Knight, 5 Hare, 272 (affirmed by the Lord Chancellor and reported on appeal in 11 Jur. 527), the deeds had been delivered to the first equitable mortgagee, and by some unexplained means they had got back into the possession of the mortgagor who delivered them to a subsequent equitable mortgagee. It was insisted by the latter that it must be presumed that it was by the fault or neglect of the first mortgagee that the deeds had got out of his possession, or that at all events the court should direct an inquiry as to the circumstances. But the court held that the onus lay on the second mortgagee of proving such alleged fault or neglect of the first mortgagee; and, as he had failed to prove it, the court could not presume it, nor direct an inquiry on the subject, and decreed in favour of the first mortgagee. I think it may be clearly inferred from this case that if the first mortgagee had never had the deeds delivered to him, or if it had been proved that the deeds had got back to the mortgagor through his fault or neglect, the decision would have been in favour of the second mortgagee who had the deeds. So the deeds may have come into the hands of a subsequent equitable mortgagee by means of an act committed by another person which constituted a breach of an express trust as against the person having the prior equitable interest. In such a case it would be contrary to the principles of a court of equity to allow the subsequent mortgagee to avail himself of the injury which had been thus done to the party having the prior equitable estate or interest. Indeed it appears to me that in all cases of contest between persons having equitable interests the conduct of the parties and all the circumstances must be taken into consideration, in order to determine which has the better equity; and, if we take that course in the present case, everything seems in favour of the defendant, the equitable mortgagee. The vendors, when they sold the estate, chose to leave part of the purchase money unpaid, and yet executed and delivered to the purchaser a conveyance, by which they declared in the most solemn and deliberate manner, both in the body and by a receipt indorsed, that the whole purchase money had been duly paid. They might still |