language and limitations of the trusts are adopted.1 But there are exceptions as well known as the rule itself. Thus executory trusts are treated as susceptible of various modifications and constructions not applicable to executed trusts.2 And even at law the words in a will are or may be differently construed when applied to personal estate from what they are when applied to real estate. In short it may be correctly said that the maxim that equity follows the law is a maxim liable to many exceptions; and that it cannot be generally affirmed that where there is no remedy at law in the given case there is none in equity; or on the other hand that equity in the administration of its own principles is utterly regardless of the rules of law.3

64 c Another maxim is, that where there is equal equity the law must prevail. And this is generally true; for in such a case the defendant has an equal claim to the protection of a Court of Equity for his title as the plaintiff has to the assistance of the court to assert his title; and then, the court will not interpose on either side; for the rule there is, 'In æquali jure melior est conditio possidentis.' 5 (a) And the equity is equal between persons who have been equally innocent and equally diligent. It is upon this account that a Court of Equity constantly refuses to interfere either for relief or discovery against a bona fide purchaser of the legal estate for a valuable consideration without notice of the adverse title, if he chooses to avail himself of the defence at the proper time and in the proper mode. And it extends its protection equally if the purchase is originally of an

1 3 Wooddes. Lect. lix. pp. 479 to 482; 1 Fonbl. Eq. B. 1, ch. 3, § 1, p. 147, note (b); Cowper v. Cowper, 2 P. Will. 753.

2 3 Wooddes. Lect. lix. pp. 480 to 482; 1 Fonbl. Eq. B. 1, ch. 3, § 1, p. 147, note (b).

Kemp v. Pryor, 7 Ves. 249, 250.

1 Fonbl. Eq. B. 1, ch. 4, § 25, and note; Id. ch. 5, § 3; 2 Fonbl. Eq. B.. 6, ch. 3, § 3, and note (c); Id. B. 3, ch. 3, § 1; Mitford, Pl. Eq. 274; Jeremy, Eq. Jurisd. 285; Fitzsimmons v. Guestier, 7 Cranch, 2, 18; Caldwell v. Ball, 1 T. R. 214.

5 Mitf. Pl. Eq. [215] 274; 1 Fonbl. Eq. B. 1, ch. 4, § 25; Id. ch. 5, § 3; 1 Madd. Ch. Pr. 170, 171; Jeremy on Equity Jurisd. 283; Jerrard v. Saunders, 2 Ves. jr. 454; 2 Fonbl. Eq. B. 3, ch. 3, § 1.

See Sugden on Vendors (7th edit.), ch. 16, p. 713, &c. § 10; Id. ch. 18, pp. 757, 762, 763; Grounds and Rudim. of the Law, M. 236 (edit. 1751); Story on Eq. Pl. § 603, 604, 805, 806.

(a) Pratt v. Clemens, 4 W. Va. 443.

equitable title without notice, (a) and afterwards with notice the party obtains or buys in a prior legal title in order to support his equitable title.1 This doctrine applies strictly in all cases where the title of the plaintiff seeking relief is equitable. But it yet remains a matter of some doubt whether it is applicable to the case of a plaintiff seeking relief upon a legal title.2 The purchaser however in all cases must hold a legal title, or be entitled to call for it, in order to give him the full protection for this defence; for if his title be merely equitable, then he must yield to a legal and equitable title in the adverse party. So the purchaser must have paid his purchase-money before notice, for otherwise he will not be protected, (b) and if he have paid a part only, he will be protected pro tanto only.*

1 See Sugden on Vendors (7th edit.), ch. 16, pp. 713, 728; 1 Fonbl. Eq. B. 1, ch. 4, § 25, note (e); Post, §§ 108, 139, 154, 265, 381, 409, 434, 436; Grosvenor v. Allen, 9 Paige, R. 74, 76, 77.

2 Sugden on Vendors, ch. 18 (7th edit.), pp. 762, 763; Id. ch. 18, 2 vol. 309, 310 (9th edit.); Jeremy, Eq. Juris. 295. It is an apparent anomaly in the general doctrine, that it should be inapplicable to a bill for relief founded on a legal title. Against such a bill Lord Thurlow decided that a plea of a bona fide purchase, without notice, was no protection; Williams v. Lambe, 3 Bro. Ch. C. 264. Lord Loughborough seems to have entertained a different opinion; and the point has been contested by some elementary writers, and supported by others. Mr. Belt, in his note to the case, 3 Bro. Ch. C. 264, insists on Lord Thurlow's doctrine being right; so do Mr. Roper and Mr. Beames. But Mr. Sugden treats it as incorrect. See Jerrard v. Saunders, 2 Ves. jr. 454, 458; Sugden on Vendors (7th edit.), 762, 763; Id. ch. 18 (9th ed.), 2 vol. 309, 310; Roper, Husband and Wife, 446, 447; Post, § 410, note (1); Id. §§ 436, 630, 631. In Collins v. Archer, 1 Russ. & Mylne, 284, 292, Sir John Leach followed the case of Williams v. Lambe, and held that the fact that the party was a bona fide purchaser for a valuable consideration without notice was not available as a defence against a plaintiff who relies upon a legal title. On the other hand Lord Abinger, in Payne v. Compton (2 Y. & Coll. 457, 461), held that such a purchase was a good defence against any claim in equity by the owner of the legal estate. See also Wood v. Mann, 1 Sumner, R. 504.

3 Sugden on Vendors (7th ed.), and Id. ch. 18 (9th ed.), 2 vol. p. 309, 310; Id. ch. 18, p. 757 to 763; Grounds and Rudim. of the Law, M. 236 (ed. 1751); Com. Dig. Chancery, 4 W. 12; Davies v. Austen, 1 Ves. jr. 247; Skirras v. Craig, 7 Cranch, R. 34; Whitfield v. Faussat, 1 Ves. 387; Jeremy on Equity Jurisd. 286.

4 Wood v. Mann, 1 Sumner, R. 506, 578; Flagg v. Mann, 2 Sumner, R. 487; Post, § 1502.

(a) A bona fide purchaser from a trustee, without notice of the trust, will be protected against the cestui

que trust. Caskell v. Lathrop, 63 Ga. 96.

319.

(b) Whelan v. McCreasy, 64 Ala.

64 d. But even when the title of each party is purely equitable, it does not always follow that the maxim admits of no preference of the one over the other. For where the equities are in other respects equal, still another maxim may prevail, which is, Qui prior est in tempore, potior est in jure;' for precedency in time will under many circumstances give an advantage or priority in right.1(a) Hence when the legal estate is outstanding, equitable incumbrances must be paid according to priority of time.2 And whenever the equities are unequal, there the preference is constantly given to the superior equity.3

64 e. Another maxim of no small extent is that he who seeks equity must do equity. (b) This maxim principally applies to the party who is seeking relief in the character of a plaintiff in the court. Thus for instance if a borrower of money upon usurious interest seeks to have the aid of a Court of Equity in cancelling or procuring the instrument to be delivered up, the court will not interfere in his favor unless upon the terms that he will pay the lender what is really and bona fide due to him.(c) But if the lender comes into equity to assert and enforce his own claim under the instrument, there the borrower may show the invalidity of the instrument, and have a decree in his favor and a dismissal of the bill without paying the lender anything; for the court will never assist a wrong-doer in effectuating his wrongful and illegal purpose.5 And the like principles will govern in

1 1 Fonbl. Equity, B. 1, ch. 4, § 25; Fitzsimmons v. Guestier, 7 Cranch, 2; Berry v. Mutual Ins. Co., 2 John. Ch. R. 608; Beckett v. Cordley, 1 Brown, Ch. R. 358; Mackrett v. Symmons, 15 Ves. R. 354. See Post, § 421 a; Miner v. Schenck, 3 Hill, N. Y. R. 228.

2 Ibid note (e). See Blake v. Hungerford, Prec. Ch. 158.

Jeremy, Eq. Jurisd. 285, 286.

Grounds and Rudim. of the Law, M. 175; Id. 179 (edit. 1751); Com. Dig. Chan 3 F. 3; McDonald v. Neilson, 2 Cowp. R. 139.

5 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (h); Id. B. 1, ch. 2, § 13; Mason v. Gardiner, 4 Bro. Ch. C. 435.

(a) But not where the junior equity has the superior merit. Hume v. Dixon, 37 Ohio St. 66; Rice v. Rice, 2 Drew. 73; Cave v. Cave, 15 Ch. D.

639,

648.

(b) Smith v. Murphy, 58 Ala. 630; and note infra.

(c) Sporrer v. Eifler, 1 Heisk. VOL. I. - 5

633; Eslava v. Crampton, 61 Ala. 507; Campbell v. Murray, 62 Ga. 86. On the other hand if the grantee in a usurious deed comes to equity to reform it, he must abate the usury. Corby v. Bean, 44 Mo. 379. See post, § 301.

other similar cases where the transaction is not as between the parties grossly fraudulent,(a) or otherwise liable to just exception.1 Many other illustrations of the maxim of a different nature may readily be put. As where a second incumbrancer seeks relief against a prior incumbrancer who has a claim to tack a subsequent security, he shall not have it before paying both securities. So where a husband seeks to recover his wife's property, and he has made no settlement upon her, he shall not have it without making a suitable settlement. So where an heir seeks possession of deeds in the possession of a jointress, he shall not have relief unless upon the terms of confirming her jointure. So where a party seeks the benefit of a purchase made for him in the name of a trustee who has paid the purchase-money, but to whom he is indebted for other advances, he shall not be relieved. but upon payment of all the money due to the trustee.2 (b)

1 Peacock v. Evans, 16 Ves. 511; Grounds and Rudim. of the Law, M. 175, 179 (edit. 1751).

2 Com. Dig. Chancery, 3 F. 3; Sturgis v. Champneys, 5 Mylne & Craig, 97, 101, 102. In this case Lord Cottenham said: 'Undoubtedly for many purposes this court, acting upon the principle of following the law, deals with property coming under its cognizance from the legal estate being outstanding, according to the rights which would exist at law; but that is far from being universally true Cholmondeley v. Clinton (2 Mer. 171; 2 J. & W. 1), and the authorities upon which that decision was founded, are instances to the contrary. There are many cases in which this court will not interfere with a right which the possession of a legal title gives, although the effect be directly opposed to its own principles as administered between parties having equitable interests only, such as in case of subsequent incumbrancers without notice gaining a preference over a prior incumbrancer by procuring the legal estate.

(a) Equity does not require one from whom a contract has been obtained by fraud to show that he has offered performance of the same as a condition to relief from it. Thomas v. Coultas, 76 Ill. 493.

(b) The books are full of illustrations of this maxim. A few may be added to those of the text. If a party seek relief against interference with his water privilege, he may be required to discontinue a wrongful use of defendant's land connected with it. Comstock v. Johnson, 46 N. Y. 615. So an heir asking to set aside his deed to a widow, and for an account, must

allow one third of the income, though her dower has not been set out. Ames v. Ames, 1 Cinn. Sup. Ct. 559. And a person asking for partition in equity. must pay his proportion of a mortgage paid by the other party. Campbell v. Campbell, 21 Mich. 438. So a widow asking for her dower must account for what she has occupied beyond her third. McLaughlin v. McLaughlin, 5 C. E. Green, 190. One asking for relief from an overassessment must pay what is justly due. Morrison v. Hershire 32 Ia. 271; Smith v. Auditor-General, 20 Mich. 398; Merrill v. Humphrey, 24 Mich.

64 f. Another maxim of general use is, that equality is equity; or, as it is sometimes expressed, equity delighteth in equality.1 And this equality, according to Bracton, constitutes equity itself: Equitas est rerum covenientia, quæ paribus in causis paria jura desiderat, et omnia vere co-æquiparat, et dicitur æquitas, quasi æqualitas.'2 This maxim is variously applied; as, for example, to cases of contribution between co-contractors, sureties, and others; to cases of abatement of legacies, where there is a deficiency of assets; to cases of apportionment of moneys due on incumbrances among different purchasers and claimants of different parcels of the land; and especially to cases of the marshallIt may be to be regretted, that the rights of property should thus depend upon accident, and be decided upon, not according to any merits, but upon grounds purely technical. This however has arisen from the jurisdiction of law and equity being separate, and from the rules of equity (better adapted than the simplicity of the common law to the complicated transactions of the present state of society), though applied to subjects without its own exclusive jurisdiction, not having, in many cases, been extended to control matters properly subject to the jurisdiction of the courts of common law. Hence arises the extensive and beneficial rule of this court, that he who asks for equity must do equity; that is, this court refuses its aid to give to the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which this court would not otherwise enforce. If therefore this court refuses to assist a busband who has abandoned his wife, or the assignee of an insolvent husband who claims against both, in recovering property of the wife, without securing out of it for her a proper maintenance and support, it not only does not violate any principle, but acts in strict conformity with a rule by which it regulates its proceedings in other cases.'

1 Grounds and Rudim. of the Law, M. 91 (edit. 1751); Petit v. Smith, 1 P. Will. 9.

2 Bracton, Lib. 1, cap. 3, § 20; Plowden, Comm. 467; Co. Litt. 24.

170; Montgomery County v. Elston, 32 Ind. 27. But it must clearly appear how much is due. Dean v. Charlton, 23 Wis. 590. And a co-surety, seeking relief from a judgment against him from the whole debt, must pay his just proportion of the contribution. Creed v. Scraggs, 1 Heisk. 590. So one asking to be relieved from an invalid tax-deed as a cloud upon the title must pay all the taxes which the holder of the deed has paid. Reed v. Tyler, 56 Ill. 288. And the principle applies as well to a defendant as to a

plaintiff. Tongue v. Nutwell, 31 Md. 302. The grantee of a mortgagor of land cannot, because of fraud practised by the mortgagee on the mortgagor in obtaining the mortgage, maintain a bill against an assignee of the mortgagee to restrain a sale of the mortgaged premises, without paying the entire debt secured by the mortgage, though the mortgage was assigned to the defendant as security for a smaller sum. Foster". Wightman, 123 Mass. 101; Fairchild v. McArthur, 15 Gray, 526.