Vendor should never be ■allowed to obtain the legal estate.

(o) For the purpose of deciding what sum ought to be so paid into Court, the Court will make a declaration as to future rights: Re Freme's Contract, 1895, 2 Ch. 256, 778, 780.

(p) Re Great Northern Mail. Co. and Sanderson, 25 Ch. D. 788.

(q) See General Finance, etc. Co. v. Liberator, etc Socy., 10 Ch. D. 15, 20.

(r) An ambiguous recital not precisely averring is the ease of freeholds the vendor's Legal seisin would not have the same effect; for instance, a recital that he was seised of or otherwise well entitled to the lands, for he might well be entitled in equity though not at law. Neither would any such estoppel result from a mere conveyance of lands, without any recitals, by lease and release or grant . for these are innocent conveyances, passing only the assuror's actual estate or interest, if any. Nor would any such estoppel arise from the fact of the vendor having entered into express or the statutory covenants for title. See Benstey v. Burdon, 2 S. & S. 519, 8 L. J. Ch. 85: Right d. Jefferys v. Buck-mell, B. & Ad. 278; Doe .d. Gaisford v.Stone, 3 C. B. 176:

Heath v. Crealock, L. R. 10 Ch. 22; General Finance, etc. Co. v. Liberator, etc. Socy., 10 Ch. D. 15: onward, etc. Socy. v. Smithson, 1893, 1 Ch. 1. (s) Above, pp. 480, 485, 565 567.

(t) Above, pp. 504 sq., .512. Above, p. 518.

It constantly happens that a purchaser completes the sale with the assistance of some other person, who advances part of the purchase money and takes a mortgage of the lands sold to secure the repayment of his loan. In such cases it is a commou practice for the whole estate in the lands purchased to be conveyed to the purchaser, and to be mortgaged by him to the lender by a deed executed immediately after the execution of the conveyance, the conveyance and the other title deeds being transferred directly from the vendor's into the new mortgagee's custody. It was pronounced by a late learned judge (z), that if in a case like this the property sold were in mortgage at the time of the sale, the new mortgagee should never allow the legal estate to get into the purchaser's hands. There is no doubt that it is always preferable for an intending purchaser or mortgagee of lands, which are already in mortgage, to take a conveyance of the legal estate direct from the former mortgagee, as that secures the same priority over mesne incumbrances as the former mortgagee had. But in the case of a purchase followed immediately by a mortgage, the risk run by the new mortgagee allowing the legal estate to be conveyed to the purchaser is very different from and far less than that incurred by a purchaser allowing an outstanding legal estate to be got in by the vendor. In the latter case the vendor has presumably been in possession of the land, and has had both the right and the opportunity of creating mesne incumbrances. In the former instance the purchaser has never been in possession either of the land or of the title deeds; and it is only by fraud that he can have executed, prior to the new mortgage, such a conveyance as would estop the new mortgagee from claiming the legal estate. A fraudulent mortgage of this kind, induced by false title deeds, was in fact made by an intending purchaser of land in the case, which called forth the learned judge's remarks: but as the mortgage deed contained no recitals at all, there was no estoppel as against the mortgagee from the purchaser. He suffered, however, the inconvenience of defending an action brought against him by the prior mortgagee. This shows that the only quite safe course is to follow the learned judge's advice. But the common practice is still pursued in many such cases, partly on account of its convenience, and partly because the only risk run is that of fraud, which is an exceptional occurrence.

Purchase followed by an immediate mortgage.

(x) Cooper v. Carwright, Joh. 679, 685.

(y) See above, p. 88; below, Chap. XIX. Sec. 3.

(z) Jessel, M. R., General Finance, Sec.c. Co. v. Liberator, Sec.c. Socy., 10 Ch. D. 15, 20.

In connexion with the subject of getting in the legal estate direct from a first mortgagee as a protection against mesne incumbrances, the reader may be reminded that, if the purchaser receive notice, actual or constructive, before the purchase money be fully paid, of some mesne equitable incumbrance, he cannot safely complete without the incumbrancer's concurrence in the conveyance to him (a); and further that, if after the receipt of such notice the purchase should be completed with the concurrence only of the first mortgagee, who on being paid off out of the purchase money conveyed the legal estate and released his security, the purchaser would not be able to avail himself of the priority, which was enjoyed by the first mortgagee, as a protection against the mesne incumbrance, unless the intention appeared to keep alive for his own benefit the charge created by the first mortgage (b). In such a case, therefore, this intention should be clearly expressed in the deed of conveyance, though it would not be necessary to take an actual transfer of the first mortgage to a trustee for the purchaser (c). As we have seen (d), the purchaser is entitled, if he think fit, to keep alive for his own use any mortgage existing on the property sold either by express declaration or by having the same transferred to a trustee for him, or to a new mortgagee advancing part of the purchase money, provided always that he pay any increased expense thereby caused to the vendor. It may be thought that, where a mortgage is paid off out of the purchase money, it would always be desirable to keep alive the charge, in order to protect the purchaser against any mesne incumbrance of which he might, without knowing it, have received constructive notice (e). But it never was, and is not now, the practice to do this, the risk run being too small to counterbalance the inconvenience of always maintaining the charge (/').