needs advice than deserves punishment, the court will supply him with all proper directions for the custody, maintenance, or education of the infant.1 But it seems to us, on looking at the authorities to which we have already referred, that the court will exercise no compulsory powers over a guardian, except upon the institution of a suit. Where the court is invested by the legislature with the power to make orders on petition, it will use the process of contempt to enforce the particular orders that are made. The legislature have determined that in such peculiar cases the court can act more beneficially by petition than by bill. But there is no analogy from these cases to the orders for guardianship and maintenance, which are made upon petition only. These orders are made, not in obedience to any statute, but in conformity with the notions which the court entertains of the general convenience of suitors. It by no means follows that the issue of the process of contempt, interfering as it does with the liberty of the subject, can in the absence of any statute be justified by mere convenience. We know that in matters of this kind the court always acts with the utmost scruple; and when we find no authority for the use of its process in such cases, we are fortified in our opinion that process will not be issued, except upon that more deliberate consideration, which takes place after the institution of a suit.

2 See Butler v. Freeman; Ex parte Mountford and Herbert's case, ub. sup.

C.

(To be continued.)

ART. V.-PRACTICAL POINTS IN CONVEYANCING.

I. Liability of a Purchaser to see to the Application of the Purchase Money.

THE general rule is, that if an estate be devised to a person in fee, charged with debts and legacies generally, a purchaser or mortgagee from the devisee need not see to the application of the purchase money. This is on the ground that the debts should be first paid, but if a purchaser were required to ascertain that all the debts were paid, no estate so devised could be sold except under a decree in chancery; and if the rule necessarily is, that a purchaser need not ascertain, before paying his money to a devisee, that the testator's debts are paid, it follows, that he need not make any inquiry as to the legacies, which are only a secondary charge.

The application of the general rule does not appear to depend upon the time when the sale is made by the devisee, whether immediately or a considerable time after the decease of the testator. The mere circumstance, that a considerable period has elapsed since the testator's death, has not been held in any case we are aware of, a sufficient ground to infer that the purchaser had notice that all the debts were paid, and consequently that he should have required proof of the payment of the legacies.

Several cases have recently occurred involving the consideration of this important rule, and we now propose to state them shortly with a few observations.

In Johnson v. Kennett1 the estate was devised to the son in fee, subject to the debts, an annuity to the widow and legacies to the daughters. The son was also entitled to the personal estate. Two or three years after the testator's death, the son and his wife levied a fine and conveyed the estate, without reference to the debts and legacies, to uses to bar dower. The son then sold the estate in lots to several puchasers. The conveyance recited the will, the conveyance and fine, the contract to sell, and an agreement to give to the purchaser a bond of indemnity against the legacies; it was not recited that the debts were paid. In some of the deeds the widow joined and released her annuity pro tanto. Each purchaser had a bond of indem

16 Sim. 384.

nity; some of the bonds mentioned the legacies, and others were mere general bonds, but in none was there any notice taken of the debts. The daughters filed a bill against the purchasers and the assignee of the son. The bill stated that the son had paid the debts, and that the legacies were unpaid The answers did not deny that the debts had been paid, and stated the belief of the purchasers that the legacies were unpaid. It was held by the Vice-Chancellor that the estates were still charged with the legacies in the hands of the purchasers, for they dealt with the son, not as a trustee for the widow and daughters, but as the owner of the estate, and they were aware that the legacies were unpaid, and did not represent that they were told or supposed that the debts were unpaid. But this decision was reversed upon appeal by Lord Lyndhurst, Chancellor, upon the ground that the rule applies to the state of things at the death of the testator, and if the debts are afterwards paid and the legacies alone are left as a charge, that circumstance does not vary the general rule; and in the particular case there was no charge in the bill that the purchasers knew that the debts were paid, and the taking of the bonds of indemnity was held to be unimportant.1 This case shews the importance of a purchaser not being over cautious, for it is obvious that the taking of the bonds of indemnity was the main argument against the purchasers; and the practical inference seems to be, that, in case of a purchase or mortgage under such a devise as we are now considering, there should be no recital or inquiry whatever as to either debts or legacies.

In the case of Braithwaite v. Britain, a testator devised real estate to W. B. his heirs and assigns, subject nevertheless to and charged with the payment of £3800 to the executor of the will, and that sum was afterwards charged by the testator with the payment of his debts and legacies. The executor afterwards released W. B. from the payment of the sum of £3800, but the release did not contain any evidence that the sum had been actually paid. The devisee, W. B. then mortgaged the property without any notice of the charge upon it, and it was held that the mortgagee's security was subject to that charge, or, in other words, that he should have seen that it was paid before he advanced his money to the devisee. 13 Myl. & Kee. 624.

2 Keen, 206.

But this it is clear was not holding that the mortgagee was bound to see to the payment of the debts and legacies charged on the sum of £3800, on the contrary, the Master of the Rolls said that, if that sum had been actually raised and paid to the executor, the mortgagee would not have been bound to have seen to the application of it.

The next case, Eland v. Eland1, more nearly concerns the rule we are considering. There the devisee of real estate charged with debts and legacies mortgaged it for £1000, and covenanted against incumbrances "save and except the legacies given by the will." There was no recital that the debts were paid, and the fact was that debts remained unpaid when the bill was filed. But the exception in the mortgage deed of the legacies was held to be a new and substantive charge of them upon the estate by the devisee, and that the mortgagee's security was subject to the amount of the legacies. And to this decision we see no objection, and the general rule was expressly recognized and referred to by the court, and the case was decided upon its own peculiar facts and circumstances. The main question was whether the creditors had any claim upon the fund held to be excepted out of the mortgage, and it was decided that they had the first claim, and that, subject to their claim, the fund belonged to the legatees.

In a case which lately occurred in practice, there were first two or three mortgages by a devisee in fee of real estate charged with the payment of debts and legacies generally, in which mortgages there was not any reference whatever to the debts or legacies. Then in 1824 there was a transfer of the existing mortgage debts with a further charge, in which there was a recital that all the debts and legacies, except the legacy to Dorothy Monk, had been paid. It had been assumed that the legacy to Dorothy Monk had failed, by her dying under twentyone, but it was evident that that was a mistake, and that she had taken a vested interest in her legacy. It was contended on the part of a purchaser, that he was entitled to have proof that the legacies were paid as stated in the recital, and that a release should be obtained for the legacy given to Dorothy Monk. The first part of the demand was resisted; it was admitted that if the recital had simply been that the debts were Beavan, 235.

1

paid, then that might have thrown upon the purchaser the onus of seeing that the legacies were paid, for such a recital would perhaps have been held to be tantamount to a declaration by the devisee that the legacies were become the primary charge upon the estate; but it was contended that the statements in the recital in question could not be separated, and that as it was clear the purchaser could not require proof that the debts were paid, he could not, on the assumption that that part of the recital was true, proceed to require proof that the legacies were paid. His right to proof that the legacies were paid, it was urged, depended entirely upon the fact that the debts were paid, as to which the general rule precluded him from inquiring. The only ground upon which a recital that debts are paid can be said to make legacies the primary charge is, that it is an admission by the devisee in favor of the legatees, by which a purchaser claiming under the devisee is bound: but this reason of course did not exist in the case we are now considering. We apprehend it is not strictly correct to say that it is on the ground of "notice" that a recital that debts are paid makes legacies the primary charge; for such a recital may or may not be true and can in very few cases be proved; but such a recital is certainly an admission by the devisee that the legacies are become the primary charge. But upon the whole we are inclined to think that a mere statement in a conveyance by a devisee that the debts are paid cannot be rightly held to impose upon the purchaser the onus of seeing that the legacies are paid; for, as we have already said, such a statement is only an expression of an opinion and not a declaration of a fact. And suppose a purchaser were to act upon such a statement as a fact, and were to pay the whole of his purchase money to legatees, and afterwards debts were to appear, would not the creditors have ground to contend that the purchase money had been wrongly applied, and that the purchaser must be responsible for the misapplication? As to the charge of debts and legacies, the testator makes the devisee a trustee and gives him, by implication, full power to sell and receive the purchase money, and a purchaser should not be implicated in the trust. We think the rule was rightly stated by Lord Lyndhurst, C. in Johnson v. Kennett, "the rule applies to the state of things