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![handle is hein.slavery/ssactsengr0694 and id is 1 raw text is: WOODS V. HUNTINGFORD
and barrable, exactly as if they were estates executed in the party ; and the persons
having them may, without the intervention of the trustees or the possibility of their
preventing them from exercising their ownership, act, as if no trustees existed ; and
this Court will give validity to their acts; and when I am told that legal and equitable
estates cannot subsist in the same person, it must be understood always with this
restriction ; that it is the same estate in equity and at law. There is then no person,
upon whom this Court can act; and I am amazed, when I read Goodright v. IWells,
that it went to law at all. It was a clear case, and cannot bear upon this. I admit,
where the person is seised of the estate at law and of the same estate in equity, lie cannot
have a subpoena against himself. There is nothing, upon which equity can act. The
equitable estate is absorbed: the better phrase is, that it no longer exists. But when
for the purposes of justice it is necessary, it should exist, that circumstance shall not
put the party entitled into a worse condition. There is no occasion for a legal estate at
all to support a trust estate. Even an heir at law is made a trustee by a Court of
Equity. No act of the trustee can prejudice and narrow the title of the cestui que trust.
(3 Ves. 341.) The argument is, that the trustee happening to become sole owner
of the legal estate, something has happened, that takes away from the cestuy que trust
that interest, which belongs to the nature of the estate he has ; and that he cannot
suffer a recovery without the intervention of the trustee. The trustee would have
said, he would not join; because he would not bar his own remainder. Suppose, a
bill had been filed to compel him; and he had died without it; suppose lie had died
in the Fleet, refusing to do it. In Pig. Rec. 104, there is a quotation extremely well
expressed from Lord Nottingham, the father of equity almost, 1. may say, in this Court.
I do not think it possible to put a case, that will narrow what is there laid down. It
is impossible to argue, that this is a legal remainder in tail. Either it is totally gone,
or it is an equitable remainder. There is another remainder here beyond that to
Kempe Brydges. What is to become of that l Could he by any act of his bar or destroy
that ? Certainly not. The late case [128] of Challoner v. Murhall was mentioned.
The very doctrine is there laid down; and it is clearly corroborative of what is con-
tended by the Plaintiff. The point there is, that the enfranchisement barred the
remainders over, because, if not barred that way, they could not be barred any other.
Hie could not bar them by surrender ; for he had no copyhold to surrender. Hie could
not bar them at all ; therefore the opinion of the Lord Chancellor was, that from that
moment he became tenant in fee. Boteler v. Allington, I admit, if it proves any thing,
is in favour of the Defendant : but there the tenant in tail in equity was alive ; and it
was no matter to him, provided he made a good title ; and the Chancellor's order was,
that a conveyance should be made to him. I desire to be understood, that there is no
exception to this that a legal remainder cannot be affected by a recovery with an equitable
tenant to the precipe ; but that the converse is not true ; for a legal estate in the tenant
to the proecipe is no objection. The very point was determined in the famous case
of Marwood v. Turner, 3 P. Wins. 171 ; the last point. Sir Henry Marwood upon his
marriage articled to purchase lands, which he was to settle upon himself in tail male ;
remainder to the Plaintiff's father in tail male. He purchased but did not settle ; so
that he was tenant in fee ; and it was held, that his recovery barred the remainder.
This is exactly the point. lie was tenant in fee, but was trustee according to the articles.
After this I have no difficulty. I have taken the more pains to explain my opinion
from wishing a general rule not to be misunderstood or misapplied. I am of opinion,
that Kempe Brydges was only trustee for himself in remainder after an estate tail in
F. W. T. Brydges ; and that the recovery well barred that remainder ; therefore the
Defendant must join in the conveyances according to the prayer of the bill. (See,
as to equitable recovery, Burnaby v. Griffin, 3 Ves. 266. Pigott v. Waller, 7 Ves.
98. Lord Grenville v. Blyth, 16 Ves. 224.)
WOODS v. HUNTINOFORD. Rolls. July 13th, 15th, 1795; May 14th, 1796.
[See Earl of Clarendon v. Barham, 1842, 1 Y. & C. C. C. 710; ledges v. Iedges, 1852,
5 De G. & Sm. 336.]
Estate, sold subject to a mortgage, was exonerated in favor of the heir by the personal
estate of the purchaser : his acts having clearly made it his personal debt.
Richard and Alice Huntingford were seised of certain estates for their lives with
remainder to their eldest son John in fee. By indentures of the 4th of December 1758,
930
3 VES. JUN. 128.](ViewImageLocal?handle=hein.slavery/ssactsengr0694&div=1&collection=&method=preview&ext=.png&size=3)