
    WILLIAM JONES, AND OTHERS, against ZOLLICOFFER. 
    
    JANUARY TERM, 1817
    THE complainants claiming as legatees and next of ícin to William flones, instituted a suit in equity against Zollicoffer, in which the bill stated that William flones died in 1758 having first made his will, which amongst others contained th'e following clause. “ I give to my wife Sarah flones the use of a negro fellow named Ben, another named Sam, and three wenches named Sal, Nan, Doll,, as also my sto k of goods, chattels, &c and parts and parcels of my estate during her life, then to be equally divided among my children, bv my executors.” He appointed his wife and his son William his executors.⅜
    That part of the negroes so bequeathed, are in the possession of .Zollicoffer, who pretends a title to them under a purchase, made either by himself or his lather from Set-rah the widow, who alone, took upon herself the burthen 7 1 _ ¿f executrix, and who before the period of such purchase, had paid all the debts due from the testator’s^ estate, and had elected to bo d the negroes as legatee, and had actually so held them for many years.
    That the said Zollicoffer was acquainted with all the circumstances, and purchased from the widow as legatee only ; and paid a consideration proportionate only to her life estate, and applied the money paid, or knew of its application, to the discharge of the widoW5s_proper debts. The bill then prays a discovery of the names and increase of the negroes, and of the profits received from their la-bour, and a decree for the respective shares of the complainants.
    The answer of ZoV coffer admits the purchase of a negro named Beck from the widow and three of the legatees, who assured him that they^ could then, or would make a'good title to her ; that he has understood that the girl was sold to pay a debt contracted for the support of ithe family.
    To this answer a replication was filed, and the Court directed five issues to be made up ; the only one of which necessary to be here stated was as follows-—“ Whether «ale to Zollicoffer' was for the purpose of paying the debts and expences of the testator’s estate, or the necessary ex-pences towards maintaining the‘children, or young negroes belonging to the testator, or for the benefit of the widoW only ? And whether the said Zollicoffer had notice of the equitable claim set forth in the bill, when be purchased ?”
    On this issue the jury found that the sale of the negro Beck was justifiable, and for a valuable consideration, and that the Defendant purchased without notice.
    The Court thqn decreed that the complainants should pay to Zallicoffer his costs.
    
      The complainants • afterwards filed a .bill of review, in which they made the following assignment of errors, viz, 1, No such issue as that above stated ought to have been submitted to the jury, it being perfectly immaterial as to the claim of the complainants, whether the said ne'gro Beck was sold by the widow who held her as a legatee for lite for any of the pufposes mentioned in the said issue or not,
    2. Such issue ought not to have embraced any other causes lor the salfe than that expressed in the answer, viz. “to pay a debt contracted for the support of the family,” whicH could upt, Were it true, enable the Widow, a legatee for life only, to sell the said negro absolutely and for ever, and so as to divest the property of the complainants.
    3. The jury have not specified the cause or purpose for which the said sale was made, nor have they said it was for any of the purposes contained'in the said issue.
    
      4’ That the Coqrt should have pronounced a decree for the corpplainants against the said Zollicoffer for all the descendants of Beck, which were, or had been in his possession, or in other words for the complainants shares of all the said negroes.
    To this hill of reyiew Zollicoffer demurred, and upon argument the following opinion oi the Cour^was pronoun* ced by (
    Henderson, J. It is a maxim in equity that where equity .is eqtial the law shall prevail.—Under a mistaken application of this principle the original bill was dismis-sed .as to the Defendant Zollicoffer. To reverse that de~ js ^ 0b;ect of the present bill. - J r
    of equity will purchaser for val able salera rn to parí\v¡ih any legal advantage he has over his adversary, although he may have obtained it accidentally or improperly. Nor will it compel him to discover his title with deeds, or boundaries, nor ⅛ surrender title deeds or sufier testimony to die perpetuated against him.,; because a court ot law \v<uMdo none of these things.- K1 \ when nothing is asked from him but what a court of law would compel h¡m to perform, .equity affords him no protection, (lot* not allow)uni to withhold the property of another. # '
    
      A purchaser for a valuable consideration without ncltice, has an equity equal to that of any one ; and if he has any 1 J 1 J advantage at law over his adversary, a Court of Equity will not deprive him of it; although he may have obtain- ,- eel it accidentally, or even improperly. It will not com* pel him to discover his title, or his title deeds, the boundaries of his lands, to surrender up title deeds, although improperly obtained; or isulft r testimony to be perpetuated against him, because a Court of Law vjtould do none-of these things.—.-Bu; when he is not called on to surrender any of these advantages ; when nothing is asked qt him but what a Court.of Law would compel, him to perform, it aiFords him no protection ; and when he withholds from another his property, he shall be compelled to restore it—the Court taking care that he shall not be deprived of "any of his legal advantages. The case of Collet v. Dc Gols & Ward
      
       so much relied on by the Defendant’s . . counsel, fully supports this opinion. A simitar plea to the present protected Ward and his trustee, as to all the estates of tfie bankrupt, which the bankrupt had morg^ged prior to the bankruptcy and which by assignment had, come to Weird or to his trustee before the commission was sued oüt; for as to them Ward had a legal advantage ; he had the legal estate, and nothing but equities of redemp-tipn reinainecIHin the baukrupt at the time of his bankruptcy to forfeit by the act of bankruptcj*for the benefic of his creditors } and when the assignee came into a Court of Equity to redeem the mortgaged estates, Ward's' equity being equal to his, and he having the estate at law, it was decreed that the assignee should redeem, upon paying not only the money for which the estates wefe originally mortgaged, but also the money paid by Ward to the bankrupt for a release of the equities of redemption ; although the equities were purchased after the acf of bankruptcy committed, and when the bankrupt had nothing which he cbuld sell. For Ward had the legál estate, an equity of l-edemptioa is unknown at law, and cannot be enforced in Courts of Law. And but for the interposition of a Court of Equity, the mortgaged estate, after default in the , , . .. mortgagor, would remain forever in the mortgagee. Ward\s equity therefore protected him in a Court of Equity, as he would have been protected in a Court of Law ; and the truth of his plea was ordered to be ascertained.
    But as to that property derived immediately from the bankrupt after his bankruptcy, and before commission sued out, the Court directed Ward to account, regardless of the truth or falsity of his plea; for as to that he had nq legal advantage,
    It is deemed unnecessary to examine farther the cases cited in the argument, or to notice some expressions of the Chancellors ; such as that a Court of Equity has no jurisdiction against a purchaser for a valuable consideration without notice, and others of like import j for in all the cases the , complainants were endeavoring to obtain something which the ?aw would not grant, and the expres-. sions qf the Chancellor’s Were used in reference to such cases*; and if not were extra judicial. It is unnecessary to decide whether the allegations of the parties warranted the making up of the fifth issue, to wit: Whether the Defendant was a purchaser for a valuable consideration without notice. But it is very questionable whether the Defendant had made in his plea or answer (call it whiclj you will) any such allegation.
    It is also objected that there has not been a final decree, passed and enrolled in this cause. It is true those formalities which are used in England have not been complied with. But there is sufficient for this Court to perceive that there was a decree pronounced in favor of Zol-Ucoffer. The issue was made up under the direction of the Court; it'was found in Zollitoffer’s favor ; it was ordered that the complainants should pay him' his costs: an interlocutory order was made as to the other Defendants and the cause progressed as to them; and rested as to him. According to the loose manner in which the decrees of the Courts are taken, we must, in ietstice to the parties. ’ J 1 ’ consider this as sufficient evidence of a decree having been pronounced. It is therefore ordered and decreed that the decreh dismissing the bill as to Zollicoff'er be reversed.
    Upon the reversal of the original decree, Zollicoffer filed a petition for re-hearing, which was argued by
    Brovjne, for the Petitioner.
    In this case the widow who conveyed to the Defendant, was executrix of the estate and legatee for life of the property so conveyed. It is stated, in the original bill, that before conveying to the defendant she had elected to hold as legatee; but that fact was not admitted in theansweri nor was any issue made up upon it; nor any proof whatever offered of it. The jury, on the proper issue, have found that “ the Defendant purchased for a valuable consideration, without notice of the complainants claim.”
    On behalf of the Defendant it is contended, that the original bill was properly dismissed, and of course that the demurrer to the bill of review ought to be allowed
    I. Because the complainant in the original bill did not prove that the widow had elected to hold as legatee.
    According to the practice in the Court of Chancery in England, the Chancellor finds what material facts in issue are proved by the parties ; and they are all set forth in his decree as having been proved ; and the facts wot stated in the decree to have been proved, will, on a bill of review, be held not to have been proved.
    
    Here the Legislature has enacted, that all the facts controversy between the parties, shall be tried by a jury, and therefore, the only proof which the Court could have admitted in support of this allegation in the bill, would liave Leen the admission of the Defendant; for then it would not have befen a disputed fact} or the verdict of a jury, it being a disputed fact- But the complainants produced neither of these, nor any other proof whatever.: therefore this allegation not being proved, or admitted, must be taken not to be trne.¡ Cde non apparcniibvs ct de non existentibus eadem est ratio.J
    
    If a devise be tb aii executor Himself, he shall take as' executor, till* his election to have #s legatee. As the widow had not made her election to hold as legatee, she held as executrix, and in that character sold, and surely conveyed a good title, both in law and equity, and therefore the original bill was properiv dismissed, and the demurrer must be allowed on this ground.
    If it is contended that the Court may reverse the decree and open the cause so as to let the complainants have an issue made upon this allegation,.because it would ire hard that the party should suffer from the mistake or oversight of his counsel : it may be answered
    - fst. There is not a single tittle of Testimony, not even the oath of the party, to shew that there was any mistake or oversight whatever, or that the merits were not fairly and fully brought forward and disclosed on both sides. And if a decree can be reversed', merely because a man of lively imagination.can fancy that, the party against whom it is made, might possibly have been able to produce testimony, which might have Had an influence on that decree, all decrees whatever may be reversed.
    2dly. “*Itis to be lamented, if the fact be so—but it is out of the power of this Court, without introducing a rule' pregnant with inconvenience, to remedy it,” was the given by this, Court, unanimously, to an applica-f°r a new trial, where the ^mistake of counsel and surprise on the party were sworn to  And surely nothing could be more inconvenient than permitting a party first to bring bis cause to hearing on one set of facts, and when the opinion of the Court was found tó be against him on them, to try another : and perhaps another, at the distance of many years (as in this case) when his adversary hás probably lost much of his testimony. The com» plainants may have abstained from making up this issue until the Defendant’s witnesses have died. The Defendant did not want an issue on the complainant’s allegation s —his case was as strong without such issue, as if one had been made up, and found for him. Such practice is not permitted in England, even where the Court has no doubt that the party applying for a new trial has merits. The maxim is “ it is better to suffer a mischief than an incon» Venience.”
    Sdly. At law, if the Flantiff has had a verdict against him, and had any material testimony, which he could not fcffer to the jury, he may obtain a new trial, provided he Shews that his not offering that testimony was owing to any fraud in his adversary, or surprise, in a doubtful case, on himself. But, if he does not move for a new trial, but suffers judgrnent to be entered up on the verdict, then in that case he is without remedy ; for that judgment can only be reversed by writ of error,—for error on the face of the record ; or for some fact, (such as the death of one of the parties) shewing that the judgment was a nullity. Now in the present case the Complainants suffered a decree to be entered against them, and acquiesced in it for many years, and now bring a bill of review to reverse that decree. A bill of review is in nature of a writ of error, and “ can only be brought upon errorfin law appearing in the body of the decree itself (or issues,) or upon discovery of new matter. -
    It is therefore concluded that on this ground the demurrer must be sustained unless it is contended that this Courtis neither bound by precedent or principle, but can., say with the tyrant of old, “ Sic volo, sic jubeo.,
    
    
      II. If it bad been proved that the widow had. made her election to hold as legatee, it is admitted that that election 'would have vested the legal remainder in those under whom the complainants claim, and that the widow, after such election, could only dispose of the legal estate for her life to the Defendant. But at the time that the Defendant purchased Of the widow he believed that she was conveying to him a good estate in fee simple, gave an adequate and valuable consideration for such an estate, and had no notice of the complainants claim—so the jury has found» And, the Defendant being in possession, it is contended that this Court ought not to interfere to deprive him of that possession, or in any manner to invalidate or endanger his title.
    The maxim in equity on which this position is grounded is sometimes cited as being “ Where there is equal equity the law must prevail.” But this is not the true maxim, but a consequence of it. The true maxim is, “ In (equali jure, potior est conditio possidentis.” The person having the legal title can and does generally recover possession^ law, and whoever wants to deprive him of* that possession must come in as a complainant in equity, and if the Defendant who has got possession has equal equity with him who demands it from him, the Court will not interfere between them; for there is no equity or justice in taking a burthen off the back of one innocent man and imposing it on that of another equally innocent man. So that the legal tide prevails in such cases, not because equity pay's any more respect £o it, but because it puts its owner in possession, through the instrumentality of a Court of Law.
    For example, A, B and C, have several mortgages oñ the same property for jflOOO each, without being affected hv notice of one another’s mortgages. A has the legal title, being first mortgagee, but this Court will compel him to convey it to B, on B paying him his _£l000 : But if A, before B files his bill, conveys or assigns the legal title to C, on C paying him his money, then B cannot compel C to part with the legal title without paying him £2000. What is the reason of this—the legal title is equally valid in both cases, and equally operative; for it puts its owner in possession ; and B*s equity is still the same ; for he hath done nothing to strengthen or impair it. The true reason is, that when A had the legal title, by means of it, he got possession, and by virtue of his mortgage was a purchaser for a valuable consideration to the amount of £1000, and so far in xqiiali jure with B, and as long as he sustained that character, the Court would not interfere against him ; therefore B, when he wanted to procure the interference of the Court in his favour was obliged to deprive him, not of his legal title, but of his equal equity, which he did by paying to him or tendering the £1000. Upon that A ceased to be a purchaser for a valuable consideration, and B continuing to be so, the Court readily interfered in h)s favour, against A’s legal tide. But when A conveyed the legal title to C, C became a fair purchaser to the amount of the £ 1000 he paid to A, and continued a fair purchaser to the amount of his original mortgage, viz. £1000, and having got the possession by virtue of his legal title, the Court would not interfere against him until B deprived Jhim of the character of a purchaser by paying him the whole £2000—as well his own younger mortgage as A’s elder one. Sq if there had been an outstanding satisfied term in D, although D, not being in equity a purchaser, would have been compelled to convey to a purchaser without receiving any consideration, and these mortgagees would have been entitled to call upon him according to seniority (for between equities, neither of whom can hold the possession for want of the legal title, qui prior est tempore, potior est jure) yet if D assigned this satisfied term, which itself was of no value in the eye of equity, to C, he would by means of it get the possession and compel the others to resort to equity if they wished to get it from him, and in order to induce the Court to act against him they must deprive him of his character of a purchaser by paying him off.
    This principle more extensively influences the conduct of pourts of equity than any other principle whatever. In equity there are three classes of persons. 1. Purchasers, or those who claim fop a valuable consideration. 2. "Wi-* dows and children, or those whose claim is considered meritorious. 3. Volunteers, or those who claim without any consideration. And equity will relieve purchasers against widows and children or volunteers, and it will relieve widows and children against volunteers ; but it will not interfere between volunteers, nor between wi~ flows and children ; nor between purchasers, which is the point to be more particularly proved.
    A purchaser having the legal estate can, it is believed, come into equity only for one of three purposes. 1. To perpetuate testimony. 2. To obtain discovery. 3. To obtain more compleat relief. a
    The Court will perpetuate testimony where it will neither grant a discovery nor give reliel-
    
    So it will more readily entertain a bill for discovery than one for, relie 1.
    
    The original bill prayed both discovery and relief. But it was properly dismissed as to both ; for it is a well settled rule that against a fair purchaser for a valuable consideration, without notice, the Court will take no step whatever.
    
    Against a purchaser for a valuable consideration without notice, the Court will not entertain a bill for the purpose of perpetuating testimony. Or for a discovery, and still less for relief. 
    
    |n some 0f these cases a discovery was sought of deeds • J ? the Defendant had got into his hands by a trick or a fraud, ' ‘ 
      but was refused. And in almost all of them the complainants had the legal title ; so that when it is asserted that the plea of being “ a purchaser for a valuable consi-d' ration, without notice,” is no defence in equity when the complainants own the legal title, all that can be said Stnswer is, that such an assertion is worthy of admiration.
    The case reported in C. T. T. 65, under the title of Collet v. De Gols and Ward has been 'supposed to be contrary to the doctrine now attempted to be supported by the Defendant. But a very little consideration will show that it strongly sppports the Defendant.
    The complainant as assignee under a commission of bankrupey against Tyssen, filed his bill to set aside several conveyances which Ward and the other Defendant, in {rust for him, had obtained from Tyssen after his bankruptcy, and without consideration. Although Bradly is not mentioned as a Defendant in the title of the bill, yet be certainly was one ; for a decree was made against him. The property of the bankrupt was placed in three situations distinctly different. 1st. The mortgage to Bradly, which he never had assigned, but of which the bankrupt had assigned the equity of redemptitm to Ward, without receiving any consideration therefor. 2d. Mortgages before the bankruptcy, made to Haskshaw and others, and by them assigned to Ward and others in trust for Ward. 3d. Property conveyed to Ward and others in trust for hint after the bankruptcy. As to Bradlys mortgage, he Lad the legal estate which gave him the possession or right of possession, and was a purchaser for a valuable consideration, without notice, to the amount of his mortgage, which was of course paid to him in order to divest him of the character of a purchaser, and then he, Bradly, was decreed to convey to the complainant; for the assignment to Ward of the equity of redemption was after it had been tested in the complainant, and was fraudulent, and unsupported by the actual possession, or right of possession— aS to it, no decree was made against Ward, nor any step whatever taken against him. When Bradly was paid, thp of redemption was necessarily to be disposed of by the Court, and the Court did dispose of it by decreeing Bradly to assign to the elder and fairer equitable claimant.
    As |to the property of which Ward had the legal title, and by means of it the possession, or right of possession, and concerning which the decree must necessarily be against Ward, Lord Talbot after distincdy stating, “ that a purchaser for a valuable consideration, without notice, having as good title to equity as any other person, this Court will never take any advantage from him ; and consequently, will not grant a discovery against him, &c.” directed an issue to try whether Ward had notice of the bankruptcy, and when. He also made the same order as to the third class o property, considering Ward, and his special trustee, as one person.
    The case of Strode v. Blackburne,
      
       hath also been relied upon for the Complainant. There a bill was filed for a discovery and relief, to which the Defendant plea; ed that he was a purchaser for a valuable consideration, without notice, &c. Lord Rosslyn overruled the plea as to the discovery, and directed that it should stand for an answer, with liberty to except. So far, this case is inconsistent with what is now contended for on behalf of the Defendant^ and is inconsistent with the doctrine of Lord Rosslyn himself, and with every other case previously decided and reported. And in the subsequent case of n v. Lee,
      
       which was exactly similar to Strode v. •' T Blackburne, Lord Eldon allowed a similar plea, and said, “ that the decision of Lord Rosslyn, in Strode v. Blackburn, was not consistent with the doctrine of equity as to a purchaser for a valuable consideration, without notice.5’
    The legal title in equity is of no consideration ; for “ the trust is the land in equity, and the owner of the land.” And it is devisable by general words, as lands. And it will descend as lands.! , 
    
    It is therefore submitted, that on either of these grounds, the original bill was properly dismissed, and that the Demurrer to the Bill of Review, ought to be al-7 ° lowed.
    
      January Teem, 1817.
    
    ; the province of a quPy's^tto try only such disputed facts as the submit to find that a s‘!‘e Í'3nstif-elusion of'l&w ⅛ them.
    ua legatee ina will is also exeeu-as legatee, her power e-vei- t:,e Pr°pet ty bequeathed, as ward ceases: petates for the benefit of the ulterior remainder men, and converts their equitable, into a legal title.
    A younger equity can in no case prevail against an older, but where it has also the law; for the rule is, where there is equity on both sides, the law shall prevail.
    When a bill is filed by one who has the legal title, but under such circumstances that he cannot be completely redressed in law,' it is no defence for the purchaser to plead, that he purchased for valuable consideration without notice
    In all the cases cited m argument to prove the rule that whenever such apurchaser, was attempted to be disturbed, such plea would protect him, the honest purchaser was only protected after he got in the legal title.
    
      
       The original papers in this cause, havjngbe,en by some accident mislaid, did.notcome: nto the hands of the Reporter until within a few days past. To extract frdm a voluminous mass of chancery forms the material " parts of the cause, and to mould them into a shaj.e fit for publication h s been a wofc of much labour; but one, upon which more might have been-properly bestowed, had time permitted The aim has beento„.sei2e the mean between obscure brevity and needless prolixity.
    
    
      
       Cases Temp. Talbos 65.
    
    
      
       2 ch Ca. 161-2 1 Vern. 214
    
    
      
      
        Com. Dig. Abm. C 5 & mult. Als.
      
    
    
      
      
        Lester v. Zachary 1 Law Rep. 380
    
    
      
       1 Ves. jr. 133.
      
    
    
      
      
         Mit 78Com. Dig, Chnn. G. and
      
    
    
      
       2 Ch Ca 133-4 3 Br Ch. 13 170
    
    
      
      
         Mit. 130-1. 1 P. W. 118. 1 Atk. 450.
      
    
    
      
      
        Mit. 163
    
    
      
      
        Mit. 162. 215. 1Eq Ca. Abr Notice C. Co. Lit. 292 6 note.
      
    
    
      
       2 Vern. 159. 2 Ves.jr. 458
      
    
    
      
      
        Prec. in Ch. 51.1 Ca. 68.2 Ca. Ch. 47, 8 Ib 72 3 1 Vern. 27 2 Vern. 158. 2 Ves. 450. 1 Br Ch. 578. 2 Br. Ch 66 2 Ves. jr. 451.
    
    
      
      
         1 Ch Ca. 68. 1 Vern. 159. 2 Ves. jr. 458.
    
    
      
      
         3 Ves. jr. 222.
    
    
      
       2 Ves. jr. 458.
    
    
      
      
        9 Ves. jr. 24. Newl. on Cont. 515.
    
    
      
      1 Bl. Rep. 162
      
    
    
      
       1 Eq Ca. Abr. 174 2 Vern. 679.
      
    
    
      
       2 P. W. 629.
    
   The opinion of the Court was delivered by

Seawell, J.

The Complainants in the original bill, charge, that William Jones, being possessed of the orq nal stock of the slaves in, question, devised the use of them to his wife for life, and directed by his will, that after his wife’s death* the slaves should be divided by his , executors amongst all his children, and made the wife and his son William (one of the Complainants) his executors : It further charges, that the wife died in l?93, and that the Defendant has possession of the slaves under some purchase for a small price, and with full notice of the children’s claim, and that the Plaintiffs represent the children. The bill also charges, that the wife elected to hold as legatee, and that all the debts had been paid r before fhe sale of the slaves, and prays that the slaves may be surrendered, and the Defendant decreed to ac-count for their profits.

The Defendant, by his answer, in substance says, that 1 J he purchased from Sarah Jones (the widow) Brittain Jones and Elizabeth, two of the children, and William Perry, who it seems married one of the daughters of the testator; that the vendors assured him they could or -would . make a good title* and that he did not pretend to be á judge of its goodness, but bought upon their assurance i that he understood the sale was made for the support of the family—that EÍizábéth was at thát time of full age;

Upon this bill and answer, a Jury is called upon to try the truth of the matters in dispute between the parties ; and these matters in dispute can only be found, by comparing the bill and answer, and not by any issues otherwise made up. And it may be here remarked, that every thing charged, which is not admitted by the answer, must first be found by a Jury before the Court can act upon it ; for, according to the constitution of our Courts, the Jury is to decide all matters of fact. The Jury, in this case, found that the sale was “ justifiable,” and that Defendant purchased without notice, and for a valuable consideration: Upon which, the Complainant’s bill was dismissed. Now it seems clear to us all, that it was the province of the Jury to find only facts, or rather what the parties, by the bUl and answer, submitted to them ; that their finding the sale “justifiable,” was a conclusion not, submitted to them, either by the bill and answer, or indeed by the issues made up by the Court: And we are free to declare, that if the wife did elect to take as legatee, as charged in the bill, her power thereafter as executrix ceased—her assent operating for the benefit of those in remainder ; the legatees thereby acquiring a legal title to that, which before was an equitable interest. The effect, then, would be, that the wife could only legally, or equitably convey to the Defendant, what she herself had, a life estate. And as to the effect of a purchase' by an innocent man for a valuable consideration in such a case, we also hold that the rule in equity is clear, as between mere equitable claimants, or, in other words, those who only have equitable titles, that qui prior est tempore po-tior est jure', and that a younger equity, can in no case prevail against an older, but where it has also the law; for the maxim then is, that there being equity on both %ides, the law shall prevail. In a controversy between such parties, the legal title has been emphatically called the Tabula naufragis, upon which either might support himself. When it is said, that either may support hims If by the legal title, it is meant, that equity will not take <rto a if a legal defence from such innocent purchaser.—■ When an equitable owner of property calls upon the legal owner for the title, which has been called the shadow, a Court of Equity regards the substance, and will, in general, compel him to surrender it; for it would be contrary to the first principles of justice, that he who has only a formal paper title, should, without any merits, hold it and enjoy the benefit, against him who has honestly paid his money for it. Rut when a Court of Equity is called upon to take away that right, which the law would sustain, if this legal owner can himself shew equity, having the law and equity also, a Court of Equity will refuse its interposition, and, in such case, leave it to the law to decide.

Whenever, therefore, any innocent, honest purchaser, has armed himself with the law, though his equity might be postponed, a court of equity will not take away the de-fence ; but if it amount not to a defence at law, the complainant in equity would be idly spending his money to obtain it. When a bill therefore is filed by one who has the 1 gal title, but who comes into equity because he cannot be completely relieved at law, it is no defence for the Defendant to plead that he is an innocent purchaser for a Valuable consideration without notice—because the Complainant is not seeking to disarm him at law, the Defendant at best having but a wooden sword, incapable of protecting him against the assault of a legal claimant. This point was expressly determined by Lord Thurlow, in the case of Williams v. Lawler where he says it does not apply against one seeking a legal claim, and is only a bar to an equitable title ; and it is to no purpose to say, that the case turned upon the claim of a widow, for that is not noticed by the Lord Chancellor. The Counsel for the purchaser admitted, that in the casé of two equities, want of notice could make no difference, for the oldest must prevail. Courts of Law afford a remedy where the Plaintiff has a title to the thing in question, either by adequate damages, or the possession of the thing itself: Courts of Equity exercise no control over the property itself, but afford relief by acting on the person, wherever the Complainant has a title aqd cannot completely assert it at law ; or where he has no effectual title, but only a right to have one. The right to have a title, follows the property as an incident, so long as it continues to be owned by those who purchased with notice of this equitable claim, or by those who gave no valuable consideration for it; but when purchased, and the legal title actually passed, and for a valuable consideration' paid, before notice, then the incident is not dismembered, and such purchaser will stand in the shoes of his vendor: And it is the same, if the conveyance was so defective, that the legal title did not pass ; for in such cases, it remains as it would have done between two persons, both of whom had bargained lor the same property, but neither had obtained the legal title, they would neither’ of them have more than equities, and the rule qui prior est tempore, must necessarily prevail. So if a person purchases a pa*per not negotiable, he obtain® only an equitable title, and ^he consequence is, that the Want of notice can make no difference. He is subject tó‘ all the equity of his vendor; and so the rule lias always *been, and does not arise from the form of action at law#J for it was so held whilst Courts of Law respected equitable interests : But there are cases in which it is not necessary to apply to Courts of Law f<?r assistance, as in the case of a bond to make title, which if assigned, ¿he assig-nee in equity must do the same equity which the assignor ought to have done befóre he could obtain a title. From this reasoning, it seems to me conclusively to follow, that is the legal rule which operates as the shield to the purchaser, and that Lord Thurlow was right in his application of the rule. And indeed the books are full of cases where a younger purchaser, lor a valuable consideration, and without notice, has been permitted, after discovery of an older purchaser, to buy a prior incumbrance, and therebif pro ect himself. Now il the rule laid down in argument Were true, that whenever an innocent purchaser, for valuable consideration, and without notice, was attempted to be disturbed, that such plea would of itself protect him. —in other words, that the honesty of his purchase should defend him—it is remarkable, that in all the cases aliuded to, the honest purchaser was only protected after he had got in the legi.l title. The books, indeed, when speaking of those cases, say, where equity is equal the law shall prevail, and that he who hath only an equitable title shall not prevail against law and equity. And they lay it down as established doctrine, that a bona fde purchaser, without any knowledge of the defect of his title, may lawfully buy in every judgment or incumbrance, and though nothing be due upon it, yet if he can defend himself at law with it, his adversary shall have no aid in equity to set them aside ; for being able to defend himself at law, equity will not disarm him.

The decree of reversal is confirmed. 
      
       3 Brown Rep. 264.
     