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fraud, or to correct it for mistake.” On the other hand, to a bill invoking the concurrent or exclusive jurisdiction of equity against a subsequent equitable incumbrancer, purchase for value without notice would be no defence.

It will be noticed that one common case of protection to a purchaser, namely, where one buys a legal title from a misconducting trustee without notice of the trust, does not come within any of Lord Westbury’s three classes. Furthermore, the discrimination in his third class between an equity and an equitable estate is an unfortunate one, for two reasons. In the first place it is an attempted distinction between convertible terms. Every equity attaching to property is an equitable estate. The equity of a defrauded vendor is no less an equitable estate than the interest of cestui que trust. Indeed, the fraudulent vendee is constantly called a constructive trustee. Secondly, this distinction has led to a misconception as to Lord Westbury’s real opinion. He has been thought to include in his third class all purchasers, even those who have not acquired from the fraudulent vendee the title of the defrauded vendor;[1] and yet it is quite clear that he would have protected those purchasers only who had completed their purchase.[2]

By far the most satisfactory discussion of this subject is contained in Mr. Langdell’s “Summary of Equity Pleading.” The conclusions of the learned author coincide in the main, save as to the doctrine of tabula in naufragio, with those of Lord Westbury. But he has explained, with great clearness, the rationale of the doctrine of purchase for value without notice. Mr. Langdell, however, it is hardly necessary to say, was dealing primarily with the subject of equity pleading. His examination of this doctrine as a part of the law of property was incidental and professedly incomplete. Any discrepancies, therefore, that may


  1. 2 White v. Tudor, L. C. Eq. (6 ed.) 23; Haynes, Defence of Purchase, Chap. III. See also Cave v. Cave, 15 Ch. D 639, 647–9, per Fry, J.
  2. In Eyre v. Burmester, 10 H.L.C., 90, M made a legal mortgage to A, and then, suppressing A’s mortgage, mortgaged the property to B. B having subsequently discovered A’s mortgage, M, by fraudulent representations, induced A to reconvey to himself. No further conveyance was made to B. In a contest between A and B, A prevailed. Lord Westbury said, p. 104: “If B had advanced money to M on the faith of the release and M’s actual possession of it, but without taking a conveyance, he might have had a lien on the deed itself; but, this interest being equitable only, would still, in my opinion, have been subject to the superior equity of A.” This was said five months after the decision in Phillips v Phillips.