The Doctrine of the Estate

A. SEISIN. POSSESSION NOT OWNERSHIP

Tenure signifies the relationship between lord and tenant, and what implies is
that the person whom we should naturally cal the owner does not own the land,
but merely holds it as tenant of the crown or of some other feudal superior.

It may be said at once that the doctrine of tenure as developed in England make it
very difficult, if not impossible, to regard either him or his lord as the owner of the
land itself. The land could not be owned by the tenant, since it was recoverable by
the lord if the tenurial services were not faithfully performed; it could not be
owned by the lord since he had no claim to it as long as the tenant fulfilled his
duties.

English Law, in analyzing the relation of the tenant to the land, has directed its
attention not to ownership, but to possession, or, as it is called in the case of land
seisin. All titles to the land are ultimately based upon possession on the sense
that the title of the man seised prevails against all who can show no better right
to seisin. Seisin is a root of title, and it may be said without undue exaggeration
that so far as land is concerned there is in English Law only be seisin, and it was
the essence of the conception of seisin that some seisins might be better than
others.

This unfailing emphasis upon the concrete and obvious fact of possession will be
apparent if we consider for a moment three topics: the remedies that lie for the
recovery of land, the position of a tenant who is wrongfully dispossessed, and the
long established mechanism of conveyancing.

(a) Possessory nature of early actions for recovery of land

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The English actions for the recovery of land, called in early days real actions, have
consistently and continously turned upon the right to possession. Moreover, their
object throughout has been not to enquire whether the title to possession set up
by the defendant is an absolute title good against all persons, but whether it is
relatively better than any title that the plaintiff can establish. English land Law is
committed to the doctrine of relative titles to possession. Thus, the issue rose in
the most ancient and solemn remedy, the writ of right, was not whether the
demandant (plaintiff) could prove an absolute title good against third parties, but
whether he or the tenant (defendant) could establish the earlier and therefore
the better seisin. This mediaeval principle of relativity of titles dominated the later
action of ejectment and still dominates the modern action for the recovery of
land as it is now called. All that the plaintiff need do is to prove that he has a
better right than anybody else. If, for instance, he is ejected by the defendant, he
will recover by virtue of his prior possession, notwithstanding that a still better
right resides in some third person.

(b) Effect of loss of seisin on proprietary rights

Possession being once admitted to be a root of title, every possession must

create a title which, as against all subsequent intruders, has all the incidents and
advantages of a true title.

The disseisor has full beneficial rights over the land. He holds a free simple estate
which is transmissible either inter vivos or by will, and which the disseisee cannot
defeat unless he takes proceedings within twelve years after the wrongful entry.

The position may be summarized in the words of holds worth

The person seised has all the rights of an owner; the person disseised has the
right to get seisin by entry of action; but till he has got it , he has none of the
rights as an owner. In other words, the common law recognizes, not dominium
and possession, but seisin only.
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(c) Possession root of title for conveyancing purposes
The third illustration of the emphasis laid by English land law upon possession,
not upon ownership, is affordable by the practice of conveyancers. A vendor must
prove to the satisfaction of the purchaser, not only that he is entitled to the land
which he has agreed to sell, but also that his title is not subject to prove that he
has a title good against the whole world, for since land is permanent and
indestructible, it may well be that there exist a competing and better title created
many years ago and still existing.

What, then, emerges so far is that land cannot be the subject matter of
ownership, though the person in whom its seisin is vested is entitled to exercise
proprietary rights in respect of it? But again the question recurs – what is the
nature of the interest held by the person seised? Is there nothing that he can be
said to own? The answer made by English law is unique. The person entitled to
seisin owns an abstract entity, call an estate, which is interposed between him
and the land. The English lawyer first detaches the ownership from the land itself,
and then attaches it to an imaginary thing which he calls an estate.

B. FEATURES OF DOCTRINE OF ESTATE

The estate represents the extent of the right to seisin. Thus the correct
description of a tenant entitled to immediate seisin for his life is that he is seised
of black acre for an estate for life. This estate entitles its owner to exercise
proprietary rights over the land for the prescribed period, subject to observance
of the tenurial duties, and it may be disposed of a freely as any other subject-
matter of ownership. The doctrine as will be explained later is not confined to the
case where a man is entitled to immediate seisin. If he is definitely entitled to it at
some future time, he is equally the owner of an estate.
Two phenomena of great significance have emerged during the development of
this doctrine by the common law

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Estates are of 2 types. They are classified as estates of freehold and estates less
than free hold.

Secondly, several different persons may simultaneously own distinct and separate
estates in the same piece of land.
These matters will now be discussed in more detail.

(a) Meaning of freehold estate

Estates are sub-classified into those of freehold and those less than freehold. Into
which of these categories they fell depend in the earliest days upon the quality of
the tenure by which the estate owner held his land. A tenant in knight service,
socage or frankalmoin was called a “freeholder,” since the services due from him
were free from servile incidents. He was said to have a frank tenement of
freehold estate to distinguish him from a villain tenant. Such was the original
meaning of expression “freehold estate”

But one of the characteristics of these free tenants was that the time for which
they were entitled to hold the land was not fixed and certain. They invariably held
either for life or for some other space of time dependent uncertainty of duration,
not the quality of the service to be rendered, that gradually came to be regarded
as the essential feature of a free hold estate.
Thus even at the present day, an estate is freehold if its duration is uncertain ;it is
less than freehold if the time of its termination is fixed or holding under a lease
for a definite period, even though he holds for as long a period as 999 years.

(b) Freeholds and non- freeholds distinguishes in respect of seisin

Freehold send none freehold estates were further distinguished in respect of

seisin. At first the word “seisin” was used to denote possessions both of land and
of chattels, but this usage did not last long and by the fifteenth century a man was
said to be seized of land, but possessed of chattels. Later the subject –matter of
seisin became even further restricted. The real actions that lay for the recovery of
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land, but possessory assizes and writ of entry, were available only for freeholders,
i.e. to describe a tenant in fee simple, in tail and for life. These actions, as we have
seen, were based entirely upon seisin and since the availed only freeholders it is
not unnatural that the word “seisin” was reserved exclusively to describe the
possession of a freehold estate. Since mediaeval days it has been correct, for
instance, to describe a tenant for life as seised, but a tenant for years as
possessed, of the land.

(C) Tabular illustration

On the basis of duration common law has classified estates in the manner set out
in the following table.

Estates classified according to their duration.

Estates of freehold (i.e. when Estates less than freehold

length of duration is uncertain (i.e. when length of duration is certain,
or capable of being rendered certain
e.g. leases for a fixed term of years, and
tenancies from year to year).

Freeholds of inheritance (i.e. Freeholds not of inheritance.

estates which may devolve upon
successors (heirs) ad infinitum).

Estates in Estate Estate for Estate pur

fee simple fee tail life autre vie

(d) Freehold estates

As regards, duration the three freehold estates may be distinguished as follows:

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(I) Fee simple the fee simple is the largest in the point of duration, for being one
that is granted to a man and his heirs it will last as long as the person entitled to it
for the time being dies leaving an heir, and therefore it may last forever in the
sense that it may never pass to the crown for want of an heir. The word fee
denotes it inheritability, and the word simply indicates that it is inheritable by the
general heirs of the owner for the time being whether they be ascendant or
collateral.

(ii) Fee tail the fee tail which is the only other estates of inheritance is less in
quantum than the fee simple since it is inheritable only by the specified
descendant of the original grantee never by his ascendant and also because it is
descendible only to his lineal issue and not to his collateral relatives. Thus it is
inferior to the fee simple in the sense that it has not as great a capacity for
perpetual existence. The classic formula for its creation is – to A and heirs of his
body.

(iii)Life estate the life estate includes an estate which A holds for his own life and
also one that he holds during the lifetime of B this second species being.

(2) Apportionment of Fee Simple

The second phenomenon mentioned above is that the fee simple which entitles
the tenant to use the land for an infinite time is regarded by English law as an
aggregate out of which any smaller and simultaneous estates may be carved. The
entire subject matter of enjoyment is apportionable among a number of people,
each of whom is the present owner of his individual portion.
By way of illustration let us suppose that a fee simple owner desires that A shall
enjoy Blackacre for life, That on A’s death the right of enjoyment shall pass to B
for life and that subject to these life interests the fee simple shall be vested in C.

Two result flow from this view.

(i) Different degrees of estate ownership. First there may be different degree
or gradations of estate ownership. The tenant in tail and the tenant for life, no

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less than the tenant in fee simple, are owners of their estates. As compared with
the tenant in fee simple they must indeed be described as limited owners, since
their estates have not the same capacity of infinite duration. None the less they
are owners, and their ownership differs from that of the tenant in fee simple only
in degree- in quantity. There is no difference in kind or quality
The same remedies for the recovery of the land and the same powers of dealing
with the estate by way of alienation are available, irrespective of the size of the
estate. The different freehold estate in other wards represents various grades in
the hierarchy of ownership.

(ii) Futurity of right to seisin not incompatible with present ownership The
second result of the English doctrine is that an estate may be the subject of
present existing ownership, even though the right of the owner to seisin is
postponed to a future time. This is explicable in elementary terms.
An estate is the right to posses and use the land for the period of time for which it
has been granted. In the case of the fee simple the period is infinite, since the
estate is capable of perpetual existence. The entire ownership, in other words,
resides in the person holding the fee simple, since he and his successors are
entitled to use the land forever. But time id divisible and the right of perpetual
user may be divided into successive periods of limited duration or, as one writer
put it, into successive intervals of time. One slice of the perpetual time, one slice
of the entire ownership, may be given to A, another to B, and so on.

Therefore if the fee owner makes a grant to A for life, then to B for life and then
to C in tail,
each grantee receives at once a portion of the one uniform subject-matter,
namely the right to use the land. A, B and each hold a distinct and separate share
of the identical thing. The only difference between them lies in the period for
which the user is to be enjoyed. Moreover, there is no futurity about the
ownership of B and C. Upon the execution of the grant they become the
immediate and absolute owners of an estate. It is not the right of ownership but
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the right to actual seisin of the land that is future. Indeed, by virtue of their power
of disposition they may exchange their property for money and so make it
immediately available.

C. Leasehold Interest
(a) Not freehold estate
This interest generally referred to as a term of years, arise where land has been
demised, i.e. leased, to a man for a definite number of years. It thus lacks the
requirement of an uncertain duration, and though the period for which it is to last
may be very great, as for instance 999 years, yet it is not a freehold estate, and in
the eye of the law is a smaller interest than a life estate.

(b) Not real property

Moreover it is not even real property. At earlier period English law arrived at the
general principle that, while land could be recovered specifically by a
dispossessed tenant from a man who had ejected him, yet a person who was
deprived of personal chattels could not enforce their actual recovery, but had to
content himself with compensation in the shape of pecuniary damages. Broadly
speaking, action fell into two classes. The real actions lay for the restitution of
some object, and the personal actions for the recovery of damages. As land was
the only object of which restitution in specie could be enforced, it followed that it
formed the only subject matter of real action, and it is not surprising to find the
ancient lawyers seizing upon this fact and defining land as real property. Property
which could be recovered in a real action was itself called real property, and thus
it resulted that real property consisted solely of interest in
but not every interest in land could be specifically recovered, for as we have seen
the real actions were available only to freeholders, i.e. only to tenants who were
seized of the land. A tenant for years was possessed, not seised and if disposed he
could originally bring only a personal action for the recovery of damages.

D Classification of property
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(a) Real and personal property
The position reached by the common law was that estates of freehold
represented real property law in the strict sense of term, and as such were
subjected to all consequences of feudal tenure; while on the other hand
leaseholds (together with some other rights in land) were personal property and
not so subject, and for this reason were neither affected by the incidents of
feudalism, nor governed by the same legal rules as freeholds.

(b) Chattels real and personal

This position soon gave rise to a difficulty, for a term of years, no matter how it
might be treated by the technique of law, was obviously a valuable interest in
land, and one which it was appropriate to bring within the province of the land
laws. To sever its connections with the law of the land merely because it was
outside the scope of real actions would have been absurd, and so law was obliged
to surmount the difficulty by the invention of a new terminology.
It was already a common place that the subject matter of proprietary interest was
either real property or chattels. Chattels were personal property, since they were
not specifically recoverable in a real action. Leasehold were thus subject to the
law of chattels, but since they lacked the attribute of movability the obvious
solution was to regard them as a terium quid-interest pertly real and partly
personal. Thus it was that personal property was sub-divided into chattels real
and chattels personal.

Now substantially a common and uniform system of this assimilation, leaseholds

today still remain personal as opposed to real property.

(c) Summary
The law of chattels real, i.e. the rules that govern leaseholds.
The law of pure personality We see, therefore that the law of property as a
whole falls into the following three divisions:
The law of real property strictly so called, i.e. the rules that govern freehold
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interests in land – the fee simple, the entailed interest and the life interest.

Of these three department of law the first and the last stand furthest apart, for
the law of real property has been constructed on feudal principles, while the law
of pure personality has drawn it’s inspiration from a variety of non-feudal sources,
such as Roman and Canon law and customs of merchants. Midway between the
two comes the law of chattels real, which Blackstone described as having a
‘’mongrel amphibious nature’’ since it has derived it rules partly from real
property law and partly from the law of pure personality.

Modification of the common law by equity Our next task is to show how equity
modified and tampered the feudal principles of the common law by its
introduction of the ‘’use’’ and the consequent establishment of the trust concept,
which is probably the most outstanding characteristic of English law. It is this
concept that has produced the peculiarly English distinction between the legal
and the equitable estate that forms the basis of modern conveyancing.

A. Conveyances were required to be public and formal

In a feudal society it was imperative that there should be no uncertainty as to the

identity of the freehold tenant of any piece of land. A question might arise
regarding the title to the land or the right of a lord to enforce the feudal dues to
which he was entitled, and as both these matters could be settled only if it was
known who was seised, common law ordained that every transfer of a freehold
estate must be affected by an open and public delivery of seisin, either upon or
within view of the land conveyed. The merit of this was that in the event of a
dispute the actual freehold tenant would be well known to the neighbourhood.
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SECTION II DISADVANTAGES OF COMMON LAW TENURES AVOIDED BY THE
DEVICE OF PUTTING LANDS IN Use

History shows us that whenever a grievance presses hardly on the greater part of
the population, it is not long before a remedy is discovered, and it was certainly
not long before a ‘’more pliant and liberal policy’’ was introduced with regard to
the rights and powers of landowners in general. But the new policy did not come
from the common law. It was the sole work of the chancellor, who made it
possible by means of the protection which he gave in his court of equity to the
new conception called the use of lands. It was due to this alone that a tenant was
enabled to him by the common law while escaping some of the worst disabilities
of that system.

B. CREATION OF THE DISTINCTION BETWEEN THE LEGAL AND THE EQUITABLE

ESTATE.
We have seen that from the year 1400 the chancellor began to build up a
comprehensive jurisdiction over uses but it is especially important to observe that
his interventions in this field led to the introduction into the English law of what is
generally described as a duality of landownership. He did not deny that the
feoffee was entitled at common law to the exclusion of the cestui que use, since
the land had been conveyed to him by a conveyance effective at common law.
That fact was inescapable, but what the chancellor insisted upon was that the
feoffee should scrupulously had not been made to him for his own benefit.
In other words while the feoffee was regarded as owner by the common law, the
cestui que use was considered to be true owner by equity: the former had the
legal ownership the latter the equitable ownership of the same piece of land.
Thus we get the essentially English distinction between the legal and the
equitable estate-the legal estate recognized and protected by the common law
courts, and the equitable estate recognized and protected by the common law
courts, and the equitable estate recognized and protected only by the Chancellor.
This is what is meant by duality of ownership. Starting with the assumption that A
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had conveyed land to B to be held to use of A or to the use of C, Hayes, writing in
1840 described the position that arose.

(2) Differences between Legal and Equitable Estates

That brings us to the second point. What is that characteristic, or in other words
what is the difference between the legal and the equitable estates?
As we have said, the difference is not adequately defined by the statement that
the legal estate confers an empty titl, while the equitable estate amount to
beneficial ownership of the land. The fundamental distinction is this:
A legal estate is a right in rem, an equitable estate a right in personam, that
is to say the former confers a right enforceable against the whole world, latter
one which can be enforced only against a limited persons.

(a) Legal Estate

If A is entitled to the legal estate in Blackcare, then as a general rule it is true to
say that apart from some voluntary act of his own, he cannot be deprived of his
rights in the land by the fraud of some third person. If for instance, the owner of a
fee simple grants a legal term of years in the land to A and then sells and conveys
the fee simple to x, fraudulently concealing the existence of the lease, the rights
of A as the owner of a legal estate are entirely unaffected by the transaction.
Exactly the same principle applies to all legal as distinct from equitable interests.
For instance, a landowner may allow his neighbor to enjoy some right over his
land such as a right of way. If the right which is so enjoyed exhibits certain
characteristics (to be described in a later chapter) it Is known as an easement is
capable of being a legal interest and if so is permanently enforceable against all
subsequent owners of the land over which it is exercisable. That land may very
well be bought by a person who does not know of the right and has no reason to
know it, but nevertheless it will be binding upon him. The person entitled to enjoy
the right has a legal interest which can be enforced against all persons whether
they know of it or not.

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(b) Equitable estate
So then the legal estate or in fact any legal interest however small is binding
against all people, no matter how they have obtained what seem to be absolute
and unrestricted rights over the land. But the right conferred upon the owner of
an equitable estate is not and never have been as extensively as this, though they
are enforceable against so many people that they come to look very like jura in
rem. The general principle is that they are enforceable only against those people
who owing to the circumstances in which they have acquired the land ought in
conscience to be held responsible. This principle derives from the consistent
refusal of the Chancellor to enforce the use against a person who acquired the
land from the feoffee to uses unless he was affected by the confidence that had
been reposed in the original feoffee.
The number of persons who were deemed to be affected by this confidence
gradually grew in number.

(c) Extension of enforceability of equitable estate

The starting point was of course that the trustee himself or the feoffee to uses as
he was originally called was permanently bound to observe the trust. The first
extension of this was made in 1465 when it was held that a person who bought
the land from the trustee with notice of the conditions upon which the land was
held was bound by trust. The next stage reached in 1522, was that all those who
came to the trustee estates by way of succession such as his heir or doweress
were held responsible for carrying out the trust. The law which had reached the
point at the time when the Statute of uses was passed was adopted and carried
further by the courts when equitable estates reappeared under the name of trust.
Thus it was decide by Chuldleigh’s Case in 1595 that a voluntary alienee from the
trustee that is to say a person who had acquired the estate without giving
valuable consideration for it was bound by the trust even though he had no notice
of existence. Therefore a trust was enforceable both against a man who bought
the land with notice. Again at some date after 1660, trusts were made
enforceable against creditors of the trustee who seized the trust estate with a
view to obtaining satisfaction for the debts due to him.

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The one person therefore whose conscience was unaffected and against whom
the equitable estates became unenforceable was the purchaser for value of the
legal estate without notice of the rights of cestui que use. If the feoffee to uses
fraudulently sold and conveys the land to an unsuspecting purchaser, the equity
of the cestui que use was gone so far as the land was concerned and he could not
claim relief against the fraudulent trustee.

(d) Summary
We are now in a position to summarise the essential difference between the legal
and equitable estates. We have said that a legal interest can be enforced only
against a limited number of persons. To be more precise, if an equitable interest
in Blackacre is created in favour of s, the following are the persons who, if they
subsequently acquire an interest in the land, will take that interest subject to ‘s
right:
1. A person who aquires Blackacre as the heir, devisee or personal representative
of the trustee;
2. A person who has acquired the legal estate in Blackacre without the payment
of valuable consideration, even though he has no notice of the equitable interest;
3. A creditor of the trustee whether with or without notice for the legal estate in
Blackacre, but who is affected by notice of equitable interest.
An equitable interest is such as atrust is then, nif we put the matter with strict
regard to historical accuracy, one that can be enforced only against those
particular persons, but a definition which is almost equally accurate is that an
equitable interest is one that is enforceable against the whole world except a
bona fide purchaser for valuable consideration of the legal estate which is subject
to the equitable interest provided that when the purchaser acquired the legal
estate, he had no notice of the equitable interest. In the case so such a person
there is no reason why equity should not allow the common law to run its normal
course. Equity follows the law. And will not interfere with the law unless there is
some very strong equitable ground for doing so. Where a person has paid for the
interest which is secure at law and moreover has acted honestly and diligently
there is no equitable reason for postponing him to somebody who from the point

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of view of equity is in no stronger position and from the point of view of law is in
a far inferior position.
The position was put very forcibly by James LJ, in Pilcher v Rawlins:

Apparently the only exception to this immunity enjoyed by the purchaser for
value without notice arise where in fact the vendor only title to convey the fee
simple is that he is tenant for life under a settlement but he fraudulently conceals
the existence of settlement.

(3) The Doctrine of the Bona Fide Purchaser for Value of the legal estate without
Notice
There thus emerge the doctrine of the bona fide purchaser for value of the legal
estates without notice. Maitland has called such a purchaser Equity’s Darling. The
doctrine is cardinal principle of the land law and although it has been shorn of
much of its importance by subsequent legislation it still remains a basis of law and
is used as a residuary principle to solve problems of the enforceability of third
party rights for which statute makes no provision. We now look at the details of
the doctrine.

(a) Purchase For Value

The purchaser must have given in money or money’s worth or marriage.
Otherwise he is a done and is bound by the equitable interest whether he has
notice or if not. The consideration need not be adequate, and may even be
normal. Money worth extends to all forms of non-monetary consideration, such
as other land or chattels or stocks of and shares. Marriage is limited to a future
marriage, a promise is consideration of a future marriage called an ante nuptial
agreement is deemed to have been made for value but a promise made in
consideration of a past marriage, called a post-nuptial agreement, is not.
A purchaser is not limited to a person who acquires the fee simple but includes a
mortgagee or lessee.

(b) Legal estate

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The purchaser must normally show that he has acquired a legal estate in the land.
The doctrine is based on the maxim that where the equity is equal the law
prevails; and as between the beneficiary’s equitable interest and the innocent
purchasers’ legal estate the equities are equal and the purchaser’s legal estate
prevails.
On the other hand, the purchaser of an equitable interest in land takes the land
subject to existing equitable interest in the same land whether he has notice of
them or not. The competition here is between two equitable interest and the
rules are that the first in time prevails. Qui prior est. tempore potior est jure.
The purchaser fore value of an equitable interest without notice, however takes
free of an equity or mere equity. An equitable interest is distinguished from what
is generally called an equity or a mere equity.
This is a concept that defies precise definition, but it includes a right to enforce an
equitable remedy such as a specific performance or to set aside or rectify a
conveyance for fraud, undue influence, mistakes, and similar reasons.
The defense of the purchaser for value without notice thus avails the purchaser of
an equitable interest against the owner of an earlier equity, but not against the
owner of an earlier equitable interest.

(c) Without notice

(i) Actual notice A purchaser of a the land for value able consideration from the
trustee was not liable to carry bout the trust provided that he had no notice of
them when he acquired the legal estate, but it’s obvious that, unless a careful
watch had been kept on the conduct of such a purchaser, he will take care not
have notice. The definition of notice was therefore made elastic. If a purchaser
was diligent enough and acted in a reasonable and sensible manner, making all
those investigations which the purchaser of land normally did make, then he was
affected only by actual notice of trusts. If however he omitted to make the usual
investigations then he might be affected by constructive notice.

(ii) Constructive notice It has always been regarded as difficult to frame a

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satisfactory definition of constructive notice, but it is generally taken to include
two different things.
1. The e notice which is implied when a purchaser omits to investigate the
vendor’s title properly or make reasonable inquires as to deeds or facts which
come to his knowledge.

2. The notice which is imputed to a purchaser by reason of the fact that his
solicitor or other legal agent has actual or implied notice of some fact. This is
generally called ‘’imputed notice’’
Now the question is: what ought a prudent, careful man to do when he is
purchasing an estate? The answer will afford us an insight into the equitable
doctrine of notice, and at the same time will show us in what circumstances a
purchaser takes an estate free from any trust or other equitable interests to
which it may be subject.
It is not necessary to go back further than the conveyancing Act 1882 (now re
enacted by law of property Act 1925), which contained a section designed to
protect purchasers against a doctrine that had been refine to the point of
unfairness. The Act provides that no purchaser is to be affected by notice of an
instrument, fact or thing unless he actually knows of it or unless he would have
known of it had such enquires and inspections been made, as ought reasonably to
have been made by him or unless his solicitor while carrying out that particular
transaction, actually obtains knowledge of that instrument, etc., or would have
obtained it had he made reasonable inquires and inspections. What it comes to,
then, is that a purchaser is deemed to have notice of anything which he has failed
to discover either because he did not investigate the title properly, or because he
did not inquire for deeds relating to land, or because he did not inspect it.

we will take these three cases separately:

1. Notice form not investigating title For centuries it has been regarded as
essential that a man who is purchasing land should investigate the title of his le
vendor, that is to say, should require the vendor to prove his title by providing

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evidence to show that the interest which he has contracted to sell is vested in
him, and that it is unicumbered by rights an interest enforceable against the land
by third parties. Under the system of unregistered conveyancing, profit of the title
take the form of requiring the vendor to set out the history of the land in what is
call an abstract of title with a view of showing how the interest he has contracted
to sell became vested in him so as to prove that for a given number of years he
and his predecessors have rightfully exercised dominion over the land consistent
with that interest. The old rule both at law and in equity was that, if a vendor
could adduce evidence of acts of ownership for a period of not less than sixty
years, he had satisfied the obligation which lay upon him and unless anything
appeared to the contrary, had proved a title which the purchaser was bound to
accept. But there was no rigid rule about the length of this period, for it was
useless to trace the title for sixty years unless the result was to show that the
vendor was to entitle to convey that interest which he had agreed to sell. For
instance a vendor might very well show sixty years’ possession in himself, but if
this possession was held under a long lease, something more was obviously
required to substantiate a right to sell the fee simple. The vendor’s proof must
always begin with a good ‘’good root of title’’ i.e. with some instrument
transferring the interest that the purchaser now seeks to obtain.
The vendor and purchaser Act 1874 provide that in an open contract of sale, that
is , where no express stipulation had been entered into fixing a precise date from
which title should be traced, forty years should be substituted for the old period
of sixty years. Thus under the law as it existed in 1925 a vendor who failed to
persuade the purchaser to accept a shorter title was obliged to adduce evidence
of acts of ownership stretching over a period of at least forty years. This
obligation was satisfied by the vendor showing what conveyances of the estate-
whether inter vivos or as a result of death-had been affected, for, to take a simple
illustration, if documents could be produced showing that forty five years earlier X
had bought the estate for valuable consideration and then left it by will to the
vendor, it was pretty clear that the latter could make a good title.

If then on the sale of a free hold in fee, the vendor produces the title-deeds for

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the last forty years and these shows that the fee simple in the land sold has been
conveyed to him free from incumbrances, and there be satisfactory evidence that
the deeds produced relate to the land sold and the vendor be in possession of the
land and the deeds, he has shown a good title to the land.

The general obligation of a vendor is the same under the modern law, except that
for the period, for which title must be traced under an open contract, reduced
from forty to thirty years in1925, has been further reduced to fifteen years.
The first duty of the vendor is to prepare an abstract of title that is a statement of
the material parts of all during the period in question and also of all fact, such as
births, deaths, and marriages, which affect the ownership of the land. But in
addition to producing this abstract the vendor is required to verify its contents by
producing either the actual documents abstracted or the best possible evidence
of the content of those which he is not in position to produce, and by providing
facts, such as births and deaths, which are material to title.
We can now understand what is meant by constructive notice. One object of
investigating title is to discover whether the land is subject to rights vested in
person other than the vendor, and the equitable doctrine of notice ordains that
purchaser is bound by any right which he would have discovered had he made the
ordinary investigations as sketched above. Moreover, if the vendor has imposed
conditions requiring a purchase to accept a title shorter than the statutory period
the doctrine of notice is extended to the rights which would have been disclosed
had title been shown for the full period.
In general, then, it may be said that a purchaser will be bound by equitable
interest of which he may in fact be ignorant but whose existence he would have
discovered had he acted as a prudent man of business, placed in similar
circumstances would have acted.

2. Notice from not inquiring for deeds ask we have just seen the system of
unregistered conveyancing requires that a person who is buying land should
examine the vendor’s deed, in order both to ascertain whether a good title can be
made and to ensure that no third person possesses rights enforceable against the

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land. It follows from this that, if a purchaser makes no inquires for the title deeds,
and allows them to remain in the possession of third person, he will be deemed to
have notice of any equitable claims which the possessor of the deeds may have
against the land. If, however, he makes inquiry but fails to secure their
production, his liability for any equity that they would have disclosed depends
upon whether or not his failure was due to his own gross negligence. If he is
satisfied with an unreasonable excuse for their non-production, he is liable; but if
the excuse is reasonable, he may successfully shelter behind the pleas of
purchaser of the legal estate for valuable consideration without notice.

3. Notice from not inspecting land A purchaser should inspect the land and make
such inquires as a reasonable purchaser would make; what those inquires are
depends on the circumstances of each individual case. He will have constructive
notice of any rights of which are reasonably discovered. In particular he should
make inquires of any tenant or other person in occupation of the land, since the
occupation of a person is constructive notice to a purchaser of the interest of that
person; not only indeed of this interest’s but of his other rights. ‘’A tenant’s
occupation is notice of all that tenant’s rights, but not of his lessor’s title or
rights’’ This is known as the rule in hunt v luck and it was further elaborated in
that case by Vaughan Willams LJ as follows.

If a purchaser or mortgagee has notice that the vendor or mortgagor is not in

possession of the property, he must make inquires of the person in possession- of
the tenant who is in possession-and find out from his what is rights are, and, if
does not chose to do that, then whatever title he acquires as purchaser or
mortgagee will be subject to the title or right of the tenant in possession.
If, however, the person in occupation of the land deliberately puts the inquirer
off the scent by withholding information about his interest, he will be estopped
from relying on the defence that the inquirer had constructive notice arising from
the occupation.

Finally, it is not clear how far the rule operates to give a purchaser or mortgagee

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constructive notice of the interest of a person in occupation, if the vendor or
mortgagor is also in occupation.

(d) Bona Fide

This requirement is not synonymous with absence of notice. As Lord Wilberforce
said in Midland Bank Trust Co Ltd v Green
The character in the law know as the bona fide (good faith) purchaser for value
without notice was the creation of equity. In order to affect a purchaser for value
of a legal estate with some equity or equitable interest, equity fastened upon his
conscience and the composite expression was used to epitomize the
circumstances in which equity would, or rather would not do so. I think that it
would generally be true to say that the words ‘’ in good faith’’ related to the
existence of notice. Equity, in other words, required not only absence of notice
but genuine and honest absence of notice. As the law developed this requirement
became crystallised in the doctrine of constructive notice which assumed a
statutory from the conveyancing Act 1882, section3. But it would be a mistake to
suppose that the requirement of good faith extended only to the matter of notice,
or that when notice came to be regulated by statute, the requirement of good
faith became obsolete. Equity still retained in interest in and power over the
purchaser’s conscience. The classic judgment of James LJ Pilcher v Rawlins is clear
authority that it did: good faith there is stated as a separate test which may have
to be passed even though absence of notice is proved. And there are references
in cases subsequent to 1882 which confirm the proposition that honesty or bona
fides remained something which might be inquires into.

(e) Purchaser with notice from purchaser without notice

A bona fide purchaser for value of a legal estate without notice, who take from
equitable interests, may never the less pass good title to a purchaser who has
notice of them. Otherwise the owner of the equitable interest, by proclaiming his
right, could make it difficult for the purchaser without notice to sell the land
which he had purchased. There is an exception to this rule; where a trustee who is
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bound by equitable interests sell the trust property in breach of trust to a
purchaser without notice, and then re-acquires the property, he will again hold it
subject to the equitable interest. He cannot take advantage of the purchaser’s
immunity under the doctrine.

(f) Effect of equitable estate

In brief, then, an equitable estate is not so far as a legal estate. An equitable
owner may find himself, without any fault or negligence on his part, postponed to
third person who has obtained the legal estate in the same land, and his remedy
will be reduced to that of recovering the value of the estate from this fraudulent
or negligent trustee. The facts of Pilcher v Rawlins will serve to illustrate this
preposition.

Pilcher, who was the sole surviving trustee of £ 8,373, which he held in trust for
X for life and after his death for X’s children, lent the money to Rawlins on a legal
mortgage of Blackacre. This was a perfectly legitimate transaction, the effect of
which was to vest the legal estate of Blackacre in Pilcher as trustee on the same
trusts for x, so that until the mortgage was redeemed by Rawlins, Pitcher acquired
the legal and X the equitable estate in the lands.
Rawlins then arranged to grant a legal mortgage of Blackacre to Z in return for a
loan of £10,000. As things stood this was impossible because a legal mortgage
before 1926 necessitated the transfer to the lender of the legal fee simple, and
this was vested in Pitcher. Pitcher however decided to abet Rawlins in the
fraudulent scheme. First of all Rawlins (who was a solicitor) prepare an abstract of
title to Blackacre which stopped short of and excluded the mortgage to Pilcher
and thus made it appear that the legal fee simple was still vested in himself. Of
course it was not, but at this point Pilcher came into the plot by re-conveying his
legal estates; in Blackacre to Rawlins in consideration of a repayment of X’s trust
moneys. This repayment was never in fact made, but Rawlins, having thus
attained the legal estates, was enable to transfer it to Z, who paid over the
£10,000. The deed of re-conveyance was suppressed. When the fraud was
discovered, the question was, which of the two innocent parties, X or Z, had the

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better right to Blackacre.
It was held that, as Z had acted reasonably and honestly, the legal interest which
had passed to him must prevail over the mere equitable interest vested in X.
Pilcher was the sole trustee and as such had the legal estates and the title-deeds.
That being so, the effect of his reconveyance was to give the legal estate to
Rawlins, and, as the whole mortgage transaction was concealed, there was no
document to put Z on inquiry.

G. Other For of Equitable Interest

Throughout the preceding account we have principal considered one form of
equitable interest the trust, but though this is the most important species, we
must observe that it is not the only one. The trust, already described, is an
interest in the sense that just as there be equitable counterparts possessing the
same incidents, for equity follows the law. The more important of these, which
will require a more detailed discussion later, are the following:

(i) Estate Contract this arise where the owner of a legal estate either agrees to
convey it to the other contracting party or to create a legal estate out of it in
favour of that other. Thus, if A, the owner of the fee simple absolute in Blackacre,
agrees to sell it to B, the equitable interest in the land as measured by the terms
of the contract passes at once to B, although the legal estate remains with A until
an actual conveyance or lease has been executed

(ii)Restrictive covenant, i.e. a covenant by which the use of the covenantor’s land
is restricted for the benefits of the covenantee’s adjoining land, e.g. where it is
agreed that it shall not be used for the purpose of trade. The effect of such a
covenant, if the necessary conditions are satisfied, is that the covenantee acquires
an equitable interest in the burdened land in the sense that he is entitled to an
injunction preventing a breach of the agreement by the covenantor or by his
successors in title except a bona fide purchaser for value of the legal estate
without notice of the covenant.

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(iii) Equity of redemption, i.e. the right of a mortgagor to redeem the mortgaged
property upon payment of all that is due by way of capital interest.

( iv )Equitable Charge This arises, where, without the transfer of any definite
estate, land is designated as security for the payment of a sum of money. In such
cases the charge acquires an equitable interest that entitles him to take
proceedings for the sale of the land.

(v) Equitable Lien This is similar in effect to the equitable charge, and most
generally arises when the vendor conveys the land to the purchaser before he has
been paid. If so, he becomes entitled by operating of law to an equitable lien on
the land for the amount of the unpaid purchase money which is enforceable by
sale under the direction of the court.

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