A mere personal contract to pay, being a mere chose in action, is not in general assignable by law, but a rent granted pro consilio impendendo to one and his assigns, may be assigned over under the express words of the grantor himself, the conventio which vincit legem.1

Partition may be made by consent and agreement among parceners differently from that which must be made under the writ de partitione faciendâ ; as where the youngest of three wishes partition, and the other two do not, one part may be allotted her in severalty, and the others may hold the remnant in coparcenary without partition, or make partition after, instead of each taking her part in severalty at first, as would be under the writ, for "consensus tollit errorem," and modus et conventio vincunt legem."

The covenant and agreement of the parties precedent to their levying a fine and declaring its uses, whether contained in the same deed in which the levying such fine is stipulated for, or in another executed at the same time, controlled the general effect of the fine, and prevented it from extinguishing the rent or condition, &c. created by the agreement; for modus et conventio, &c.3

Of tenancy in fee-tail, engrafted by stat. West. 2, c. 1, on what was at common law fee simple conditional, it is said, "Modus legem dat donationi, et tenenda est etiam conventio, quia modus et conventio vincunt legem," e. g. where by the donation to a man with his wife of land, to have and to hold "sibi et hæredibus quos inter eos legitime procreabunt," the will of the donor of this estate in fee tail special must be observed, which excludes all heirs general, or remoter heirs, of the donees, investing in the donor the ultimate fee-simple of the land expectant on the failure of the hæredes designated by him. The right of a tenant for life or years to wood for building or repairing his house, ploughs, or hedges, and for burning at his fire, (called by the Saxons bote, and by the Normans estovers)

Maund's case, 7 Coke, 28 b; see Frazer's note, 4 vol. new edit. 110.

2 Co. Lit. 180.

3 Cromwel's case, 2 Coke, 69.

4 Co. Lit. s. 13, 2 Bla. Com. 112.

and incident to his estate at common law, may be restrained by special covenant to the contrary, according to the maxim modus et conventio vincunt legem.1

The construction and exposition of deeds should be the useful and usual one, subject to the maxim quod modus et conventio vincunt legem.2

"Consensus tollit errorem." Thus, where a cause involving a right of way concerned all the inhabitants of Canterbury, being a county of a city, and the visne or jury awarded from W. in Kent by assent of the parties, found for the plaintiff, it was held no mis-trial. For this reason, as it seems, dower made by assent of the husband's father was good, though the wife was within the age of nine years. The fines formerly paid for amendment of bad pleading in beau-pleader, and assessed since the first arrival of Henry the Third in Britain, were not taken away by stat. Marlbridge, chap. 11, for they "first grew by consent of parties."5

“[In æquali jure,] qui prior est tempore, potior jure esse videtur."

This maxim is borrowed from the civil law, and turns the balance of equal equities: thus, where one of two innocent persons must suffer, he who has not used due diligence must be the loser.6

For the like reason this rule prevails among mortgagees, who are considered purchasers pro tanto; for where of three mortgages the first is bought in by the owner of the third, though pending a suit by the second to redeem it, such puisne or third mortgagee, by thus acquiring the legal title as a tabula in naufragio, has got the law on his side with equal equity, and will therefore be permitted to tack the first and third together, to the exclusion of the second.7

1 Co. Lit. 41 b.

2 Trenchard v. Hoskins, Litt. Rep. 203. As to applying this maxim in a case of double presentation to a benefice, see the judgment of Hutton, J., in Woodley v. Exeter (Bishop), Winch's R. 95, and as to a heriot, id. 48.

3 Fineux v. Hovenden, Cro. El. 664.

4 Litt. s. 42; Co. Lit. 37 a.

5 2 Inst. 123.

Keach v. Hall, Doug. 23; and see judgment of Plumer, M. R. in Dearle v. Hall, 3 Russ. R. 20.

7 Robinson v. Davison, 1 Bro. Ch. C. 61, and Brace v. Marlborough, 2 P. W. 491. See 1 Mylne & Keen, 297; 2 Simons, 257.

In descents the rule is, that the next of the worthiest blood shall ever inherit, so that among males the eldest brother and his posterity take lands in fee simple as heirs before any younger brother or descendant of his; for the elder born "est puis digne de sanke," by virtue of the maxim qui prior est tempore potior est jure.1 Courts of equity in cases of conflicting rights to real property, ask, not who was first in possession, but under what instrument, or how is the right dated in point of time? or if there be no instrument, when did your right arise,—who has the prior right? It forms the general rule between incumbrancers and purchasers; so that he whose assignment of an equitable interest in a fund is first in order of time, has, by virtue of that circumstance alone, the better right to call for the possession of the fund. Of two presentations to the same benefice by a college or ecclesiastical person, the first in date will be preferred, as such patrons are supposed to be competent judges of the sufficiency of the presentee; but if a layman presents to a benefice twice on the same vacancy, this reason fails, and the bishop shall have the choice between the two presentees.3

R. P. T.

1 Co. Lit. 14 a.

2 See Sir E. Sugden's argument in Cholmondeley v. Clinton, 2 Meriv. 239.

3 Lindwode's Provinciale, cited I Burn, Ecc. Law, 8 edit. 151. See Winch's Rep. 95, 48.

ART. IV. A PURCHASER'S LIABILITY AS TO PURCHASE-MONEY.

WHATEVER testamentary disposition a party may make of his personal estate, the law vests it absolutely in his executors or administrators under an obligation to pay thereout his funeral and testamentary expenses and debts; but the law makes no such paramount disposition of real estate, and a proprietor may vest it in any persons he thinks proper. Hence the power which the Court of Chancery gives to the devisees in trust of real estate, when the will of their testator does not expressly define it, depends upon the circumstances of each particular case, and what may be reasonably deemed to have been the intention of the testator. Such is the reason of the different rules which exist respecting the obligation of purchasers to see to the application of purchase-monies arising from the sale of real and personal estate, and we now purpose to state the rules which may be derived from the decisions of the Courts, and the authority of text-writers.

First.-As to real Estate.

If an owner dies intestate, his heir at law, though personally responsible to the creditors to the amount or value of the real estate descended, has full power to sell or mortgage the same, and the money may be safely paid upon his receipt, though the purchaser or mortgagee has notice that the intestate has died indebted. So, notwithstanding the existence of debts, an heir at law may settle real estate descended upon his marriage; for parties who take under a marriage settlement are purchasers for a valuable, and not a good consideration only.1 Of course, if a case of fraud is made out, if it is shown that the object of the heir in making the sale or other disposition was to defraud the creditors of the intestate, they may attach the land in the hands of the alienee; but the fraud must not be a fraud on the part of the alienor only; the alienee must be party or privy to it.

If land be devised upon trust to sell, and then, inter alia, to pay debts generally, a purchaser or mortgagee is not bound to see to the application of the purchase-money, whatever other trusts the proceeds of the sale may be liable to. For a con

Spackman v. Timbrell, 8 Sim. 253. See also Meggison v. Forster, 7 Jurist.

trary rule would have annulled the trust created by the testator, for it would be clearly impossible for a purchaser to ascertain and pay debts.

The rule is the same if real estate is merely charged by general words with debts, and then devised upon trusts, or otherwise; the parties having the legal estate may sell and give receipts; for the charge is deemed a paramount trust.1 And is important to observe that where there is a trust or charge for payment of debts generally, the rule given above applies to the state of things at the death of the testator; and if debts are afterwards paid, and legacies alone are left as a charge, that circumstance does not vary the general rule. The devisee may still sell and give receipts. But if in such a case the purchaser has a clear and direct notice that all the debts are paid, it would not be safe for him, in the present state of the authorities, to rely upon the rule just stated, and most certainly if he takes, subject to the payment of legacies, they become a charge as against him. But the fact that the debts have been ascertained under a decree of Court does not vary the rule.4

3

If real estate be charged with the payment of debts, and there be no devisee, the executors may sell and give receipts.5

If, however, on a purchase or mortgage from a devisee charged with the payment of debts and legacies, there be evidence that the money raised is not to be applied for such purpose, the purchaser or mortgagee takes subject to any such charge. From this it seems to follow that a settlement by such a devisee, though in consideration of marriage, would not avail against the debts and legacies of the testator.

But if real estate devised is not charged by the will with debts generally, but with scheduled debts or legacies, the purchaser or mortgagee must see his money applied in payment of them, notwithstanding the legislature have made all

1 Ball v. Harris, 4 Myl. & Cr. 264.

23 Myl. & K. 631; Dict. per Lord Lyndhurst, C., and assented to by Lord Cottenham, C. 4 Myl. & Cr. 429; S. P. by Sir W. Grant, 16 Ves. 156; Page v. Adams, 4 Beav. 269.

3 Eland v. Eland, 1 Beav. 235; S. C. 4 Myl. & Cr. 420; Forbes v. Peacock, 7 Jurist, 688.

3 Sug. V. & P. 155, 156.

6 Watkins v. Cheek, 2 Sim. & St. 199.

Forbes v. Peacock, 11 Sim. 152.