39. An assignment of a term for years will not protect a purchaser from a crown debt; of which an account will be given hereafter. Tit. 32. c. 26. from Dower. 40. A term for years will protect a purchaser for And also a valuable consideration against the claim of dower: although such purchaser had notice of the marriage at the time of his purchase. Show. Parl. 41. Lady Radnor's husband was seised in tail of Radnor v. the lands in question. But there was a term of 99 years prior to his estate, which was created for the performance of several trusts in the Earl of Warwick's will, all which were performed, and after, in trust to attend the inheritance. Lord Radnor having barred the entail, sold the estate to Vandebendy; and assigned the term to a trustee for him. After the death of Lord Radnor, his widow recovered dower, with a cessat executio during the term: and brought her bill in the Court of Chancery to have the term removed, that she might have the benefit of her judgement at law. Lord C. Jeffries inclined to give relief; but Lord Somers held, that this being against a purchaser, equity ought not to give any relief; and dismissed the bill. On an appeal to the House of Lords, it was argued for Lady Radnor, that equity did entitle her to the third of this term. That a tenant by the curtesy would be entitled to it, and by the same reason a tenant in dower. That the term was to attend all the estates created by Lord Warwick's will, and in trust for such persons as should claim under it; which the appellant did, as well as the respondent. That the purchaser had notice of the incumbrance of dower, the vendor being married when he sold the estate; and that Lady Radnor claimed under her husband, who had the benefit of the whole trust. On the other side it was said, that dower was an interest or right at the common law only; that no title could be maintained to dower, but where the common law gave it; and if a term were in being, no woman was ever let in, until after the determination of that term. That this was the first pretence set up for dower in equity. The right was only to the thirds of the rent reserved on any term. That it had always been the opinion of conveyancers, that a term or statute prevented dower: and that the consequence of an alteration would be much more dangerous than the continuance of the old rules. The decree was affirmed. 42. The doctrine established in this case is contrary to the general principles of equity, which has never extended its protection in any other instance to purchasers with notice of incumbrances, at the time of their purchase. The true and only reason on which it was founded, was the silent uniform course of practice, uninterrupted, but at the same time unsupported, by legal decisions: an opinion having Swannock v. been generally adopted by the conveyancers, that a satisfied term would protect a purchaser from the claim of dower; and many estates having been purchased under this opinion. It is now, however, fully Lifford. 1 Inst. 208 a. Hill v. S. C. 2 Atk. 208. established, that a purchaser for a valuable consideration may, by the assignment of an outstanding term to a trustee, protect himself against the claim of 10 Ves. 271. dower. Wynn v. Williams, 5 Ves. 134. Must be as signed to a 43. A term standing out in a trustee to attend the Trustee for inheritance, will not however protect a purchaser from the claim of dower, unless it is actually assigned the Purchaser. Maundrell v. to a trustee for him. 44. R. M. being seised in fee of certain lands, with an outstanding term vested in a trustee, upon an express trust to attend the inheritance, conveyed the estate to a purchaser for a valuable consideration; but no assignment of the term was made. Upon the death of R. M. his widow claimed dower in Chancery; the purchaser contended that she was barred by the term. Sir W. Grant, sitting for the Lord Chancellor, declared his opinion to be, that without an assignment to a trustee for the purchaser, the term did not exclude the claim to dower. He observed, that at law all terms were considered as terms in gross; therefore every existing term, without regard to the purpose for which it was created, prevented a dowress from having any legal benefit from her recovery in dower, for she recovered with stay of execution during the term. But equity regarded the purpose for which the term was created and subsisted; and if it was only for the benefit of the owner of the inheritance, it was considered as part of the inheritance; not indeed absolutely merged, but so attendant upon, as to follow and accompany it, and every right and interest growing out of it, either by operation of law, or by voluntary agreement of the parties. Equity ought not therefore to permit such a term to be in any case used against the owner, either of the whole or of a part of the inheritance; for the uses adapted and accommodated themselves to all the interests which arose out of that inheritance; with which, in contemplation of equity, the term for most purposes was considered as incorporated. Every description therefore of ownership should, in its order, design, and proportion, have a use in the term, commensurable with the interest existing in the inheritance. Therefore when dower arose, the term, in a proportion, was just as much attendant upon the interest infra, f 46. 10 Ves. 246. growing out of the inheritance, as before it was attendant upon the inheritance during the husband's life. The heir therefore, though he could avail himself of the term at law, was not allowed in equity to defeat the widow's claim to dower; for having a certain quantity of interest, equity must consider her as having a correspondent interest in the term. When the husband conveyed to a purchaser, and the wife did not by fine join, nothing passed but the estate the husband had, that is, an estate subject to dower the right to dower remained just where it was; the purchaser stood precisely in the place of the husband. The outstanding term would accompany the inheritance, thus conveyed, in the mode and manner in which it was attendant upon the same inheritance before it was conveyed. The term being a mere accessary, the operation of the conveyance was purely derivative and consequential. It was not possible that a greater interest could be incidentally acquired under the term, than directly in the freehold. That the whole doctrine upon this subject was discussed by Lord Hardwicke in Willoughby v. Willoughby, in which he noticed the opinion of some conveyancers, that where there was a term, of which the trust was already declared to attend the inheritance, it was not necessary to disturb it, and take an assignment to new trustees; and showed that not to be generally true. But if there were antecedent incumbrances, nothing but an assignment could protect against them; and he conceived dower to be such an interest as could be guarded against only by an assignment. Upon a rehearing before Lord Eldon, it appeared that neither the deeds creating or assigning the term, were delivered to the purchaser. He concurred in opinion with the Master of the Rolls. 45. The doctrine that an outstanding term of years A Term will not protect shall protect a purchaser from the claim of dower, the Heir was carried still farther: for it was determined that against Dower. a satisfied term should protect an heir at law from dower. This was however soon over-ruled; and it was Brown v. resolved, that an outstanding term should not pro- Wms. 707. tect an heir from dower. Gibbs, 2 P. in Cha. 151. 46. A term was raised in Black Acre, in trust to Wray v. Williams, Prec. indemnify a person against incumbrances that might affect White Acre, which he had purchased. The defendant Lady Williams brought a writ of dower of Black Acre against the plaintiff, who was an infant; his guardian had let her take judgment at law, without setting up the term, or taking any notice of it. So the bill was brought by the infant heir, to be relieved against the judgment. It was said, by Lord K. Wright, that this case was the same with Lady Radnor's; and if she could not be relieved as plaintiff, it must be for want of equity; therefore, the plaintiff must be relieved against her, when she was defendant. And Lady Radnor's case having been affirmed in the House of Lords, the authority was so great that it could not be got over. At a rehearing of this cause before Lord Harcourt, 1 P. Wms. Lady Williams's counsel insisted that the heir, who 137. was but a volunteer, should not in equity, be relieved against the dowress; and that this case was different from that of Lady Radnor, in regard Vandebendy was a purchaser. To which it was answered, that if Lady Williams had been plaintiff in the original bill in equity, she could not have been relieved; as the term must have subsisted, for the benefit of the heir at law. That this was the same in reason with Lady Radnor's case; that the term was prior to the marriage, and so the husband only seised of the reversion |