“LORD THURLOW'S EQUITY” OR “A CUCKOO IN THE LEGAL NEST”?
| Date | 01 March 1970 |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01260.x |
| Published date | 01 March 1970 |
"
LOR,D THURLOW'S EQUITY
"
OR
"
A
CUCKOO IN THE LEGAL NEST
"?
A
RECENT
decision
of
the Court
of
Appeal has provoked the following
thoughts.'
1.
THE
NEST
It
is an elementary proposition
of
the common law that the title
deeds
to
land
do
not necessarily follow the estate. A man may give
or
gnant his deeds,
i.e.
the parchment, paper and
wax
to
mother
at
his pleasure, and the grantee may keep
or
cancel them.a A man may
retain a debt
and
give away the property
of
the
deed
which governs
the debt.s From this proposition there seems at an early date
to
have
grown
up a
custom
of
offering informal security by deposit
of
deeds
to
a lender. This transaction would be unaccompanied by
writing and would bake the form of a lien
or
pledge
of
the deeds
which are described as
"
the sinews of the land." The purpose
would simply be
to
prevent the borrower from disposing of the
estate until the debt was paid but would of course normally give
the lender
no
action upon the security save in
so
far
as
he could
prove the debt and
was
within the usury The lender would
simply rely upon
his
right not
to
return the deeds until the whole
debt had been paid.6 He thw seems
to
have had
a
liem upon
the deeds which
had
by then come
to
be regarded
as
chattels.
A
lien
is
defined as
a
right
in
one man
to
retain that which is
rightfully
land
continuously
in
his possession belonging
t~
another
until the present and accrued claims
of
the person in possession
are satisfied.' This i's distinguished from a pledge
in
that
a
lien
is
an
unassignable perscnal right which subsists only
so
long as
possession
of
the chmattels subsists, whereas a pledge gives an
assignable interest.8 Similarly a mortgage is
an
assignable right
in the property charged
and
does not depend for its existence upon
possession.
It
is thus clear that before equity intervened there
1
Re Molton Finance Ltd.
[l968]
Ch.
3545.
2
Sheppard's Touchstone,
242.
Kelsmk
v.
Nicholson,
2
Cro.Eliz.
496.
3
Ibid.
4
Co.Lit-t.
6A
and
see
Clayton
v.
Clayton
[1930] 2
Ch.
17
and
Ex
p.
Whitbread
Title deeds
were
orlginaUJr
not
regarded
88
chakkls
See
per
Meugham
J.
[1930] 2
Ch.
18.
5
As
to
equity
asd
the uaurg laws
see
Lodge
v.
N.U.
Inaestment
[1M]
1 Ch.
6
See,
e.g..
Head
v.
Egerton
(1734)
3
P.W.
280.
7
See
per
Grose
J.
in
Hammonds
v.
Barclag
(1802)
2
East
227,
236
and
Hals-
bury's Laws
of
England,
Vol.
24,
pp.
148,-145, 147.
8
Donald
v.
Suckling
(1866) 1
Q.B.
685,
612.
The
decision
of
the
Court
of
Appeal in
Re Richurdson
(1885)
30
Ch.D.
396
seems
to
decide,
pssibI
obiter,
that khe deposit
of
deeds
dm
not
normally
cmte
a
pledge. See
per
%ry
L.J.
(1812) 19
Ves.
209,
210.
asd
were not lmcenable.
300.
181
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