Persons for and against whom injunction granted. deree of a copyhold (that is a person to whom a surrender is made, on condition to perform the will of the surrenderor,) has an estate sufficient to support the contingent remainders of the surrenderor's will, without the interposition of the trus by immemorial custom, has declared to be a forfeiture, or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to a freehold; for the freehold of the whole manor abides always in the lord only, who hath granted out the use and occupation, but not the corporeal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will. "The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein. The lords therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold, and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be styled in their admissions tenants at the will of the lord,-the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest; and therefore continued and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders of free or privileged tenure, which are derived from the ancient tenants in villein-socage, and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord to whom they are holden, but in the tenants themselves; who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure. "However, in common cases, copyhold estates are still ranked (for the reasons above mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholdcrs, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay, sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation." 2 Blackstone's Comm. p. 147. tees for that purpose.(a) Again, where the whole legal estate Persons for and against in fee is vested in trustees, it has been established that there whom injunc is no necessity for any preceding estate of freehold, that legal tion granted. estate being sufficient to support the contingent limitations:() it may therefore be considered as established that these persons are competent to sustain a suit for an injunction to stay waste. With respect to copy holds, however, it would be advisable, both in wills and settlements, to insert a limitation to trustees to preserve contingent remainders; as however competent the estate of the lord, or dormant surrenderee, may be to preserve contingent remainders, it does not follow that it would be as clearly the duty of those persons, as it is of trustees appointed to preserve contingent remainders of freehold estates, to interpose actively to prevent waste.(c) An injunction will also be granted to restrain a *purchaser Purchaser in who has obtained possession before payment of the purchase possession before payment money, from cutting timber.(d)[1] This case will be more of purchase. properly noticed hereafter under the head of trespass. (a) Gale v. Gale, 2 Cox. 136. (b) Fearne, C. R. 303. et seq. (c) 10 Ves. 282. (d) Crockford v. Alexander, 15 Ves. 138. [1] But such an injunction ought not to be granted unless the vendor bring his suit to subject the land to the payment of the purchase money; and unless he charge the defendant with committing waste in such a manner as to render the land an incompetent security. Scott v. Wharton, 2 H. & Mun. 25. "The vendor of real estate," says Kent, "has a lien, under certain circumstances, on the estate sold, for the purchase money. The vendee becomes trustee to the vendor for the purchase-money, or so much as remains unpaid; and the principle is founded in natural equity and seems inherent in the English equity jurisprudence. This equitable mortgage will bind the vendee and his heirs and volunteers, and all other purchasers from the vendee, with notice of the existence of the vendor's equity. Prima facie the lien exists without any specific agreement for that purpose, and it remains with the purchaser to show that, from the circumstances of the case, it results that the lien was not intended to be reserved, as by the taking other real or personal security, or where the object of the sale was not money, but some collateral benefit. In Mackreth v. Symons, 15 Ves. Rep. 393, Lord Eldon discusses the subject at large, and reviews all the authorities; and he considers this doctrine of equitable liens to have been borrowed from the text of the civil law; and it has been extensively recognized and adopted in these United States. It has been a question much discussed as to the facts and circumstances which would amount to the taking of security from the vendee, so as to destroy the existence of a lien. In several cases, it is held that taking a bond from the vendee for the purchase money, or the unpaid part of it, affected the vendor's equity, as being evidence that it was waived; but the weight of authority and the better opinion is, that [*209] Persons for and against whom injunction granted. Injunction in case of executory devise. Lord Hardwicke, in Robinson v. Litton, (a) expressed an opinion that in the case of an executory devise, the heir at law (a) 3 Atk. 209. S. C. 8 Vin. Ab. 475. taking a note, bond, or covenant, from the vendee, for the payment of the money, is not of itself an act of waiver of the lien, for such instruments are only the fiduciary evidence of the debt. Taking a note, bill or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon the independent security, and it discharges the lien. Taking the deposit of stock is also a waiver of the lien; and notwithstanding the decision of the master of the rolls in Grant v. Mills, holding that a bill of exchange drawn by the vendee, and accepted by him and his partner, did not waive the lien; the sounder doctrine and the higher authority is, that taking the responsibility of a third person for the purchase-money is taking the security and extinguishes the lien. It has also been decided by the Supreme Court of the United States after a full examination of the question, and upon grounds that will probably command general assent, that the vendor's lien cannot be retained against creditors holding under a bona fide mortgage or conveyance from the vendee, nor against a subsequent purchaser without notice. The lien will prevail, however, against a judgment creditor of the vendor, intervening between the time of the agreement to convey, and receipt of the consideration money, and the actual conveyance. Under these circumstances, the vendor is justly considered in the light of a trustee for the purchaser. But in that case an intervening mortgagee or purchaser for a valuable consideration, and without notice, would be preferred." See 4 Kent's Com. 151, 152, 153, 154, and authorities. "It has been sometimes suggested," says Judge Story, "that the origin of this lien of the vendor might be attributed to the tacit consent or implied agreement of the parties. But, although in some cases, it may be perfectly reasonable to presume such a consent or agreement, the lien is not, strictly speaking, attributable to it, but stands independently of any such supposed agreement. On other occasions, the lien has been considered as a natural equity, having its foundation in the earliest principles of courts of equity. Thus it has been broadly contended that, according to the law of all nations, the absolute dominion over property sold is not acquired by the purchaser until he has paid the price, or has otherwise satisfied it, unless the vendor has agreed to trust to the personal credit of the buyer. For a thing may well be deemed to be unconscientiously obtained when the consideration is not paid. The true origin of the doctrine may, with high probability, be ascribed to the Roman law, from which it was imported into the equity jurisprudence of England. By the Roman law, the vendor of property sold had a privilege or right of priority of payment in the nature of a lien on the property for the price for which it was sold, not only against the vendee and his representatives, but against his creditors, and also against subsequent purchasers from him. For it was a rule of that law, that although the sale passed the title and dominion in the thing sold, yet it also implied a condition that the vendee should not be master of the thing so sold unless he had paid the price, or had otherwise satisfied the vendor in respect thereof, or a personal credit had been given to him without satisfaction. The rule was equally applied to the sale of movable and immovable property; and equally applied, whether there had been a delivery ought to be restrained from committing waste, until the Persons for contingency took place upon which the devised estate was whom injunc of possession to the vendee or not. If there was no such delivery of possession, then the vendor might retain the property as a pledge until the price was paid. If there was such a delivery of possession then the vendor might follow the property into the hands of any person to whom it had been subsequently passed, and reclaim it, or the price. The close analogy, if not the absolute identity between the English and Roman law, on the same subject, seems to demonstrate a common origin, although in England the lien is ordinarily confined. to cases of the sale of immovables; and it does not extend to movables where there has been a transfer of possession. There are, however, some exceptions from the doctrine in each law, founded upon the same general princi ple, but admitting of some diversity, in respect to its practical application." Story's Eq. Juris. secs. 1220, 1221, 1222. See also ib. sec. 1217, note. The following are the principal American authorities on this subject:A vendor of land who has conveyed by deed, has a lien in equity upon the land for the payment of the unpaid purchase money, against the vendee or purchasers from him with notice. Ross v. Whitson, 6 Yerg. 50. Outlon v. Mitchell, 4 Bibb, 239. Eubank v. Poston, 5 Mon. 287. White v. Casanave, 1 Harr. & John. 106. Chiselin v. Ferguson, 4 Harr. & John. 522. Graves v. M'Call, 1 Call, 414. Galloway v. Hamilton, 1 Dana, 576. Hundley v. Lyons, 5 Munf. 342. Wynne v. Alston, 1 Dev. Eq. 163. Hawks, 256. Watson v. Wells, 5 Conn. Rep. 468. 590. Meek's heirs v. Ealy, 2 J. J. Marsh. 330. 354. Garson v. Green, 1 Johns. Ch. Rep. 308. 46, 50. Clark v. Hunt, 3 J. J. Marsh. 557. Johns. 425. Blight's heirs v. Banks, 6 Monroe, Henderson v. Stewart, 4 Gunn v. Chester, 5 Yerg. 295. 289. Eubank v. Poston, 5 Monroe, 287. Eskridge v. M'Clure, 2 Yerg. 84 Kinsley, 14 Ohio Rep. 20. Stover, 10 Ala. Rep. 441. Clark v. Rep. 162. Brush v. die, 6 Ala. Rep. 427. (See American Chancery Digest by Waterman, vol. 3, p. 477.) and against tion granted. Persons for and against whom injunc tion granted. to vest. [2] In that case, the testator devised to his son(a)and his heirs; but if he should not attain twenty-one, and die (a) His eldest son. 10 Ves. 282, n. [2] Rents and profits, as well as the estate itself, may be given by way of executory devise. Rogers v. Ross, Johns. Ch. Rep. 388. The rents and profits may accumulate in the hands of the heir at law, for the benefit of the executory devisee, until the vesting of the estate. Or the court may, if neces sary, appoint a receiver for that purpose. Ib. The heir at law may, in such case, be considered as a trustee, when it becomes necessary to carry the intention of the testator into effect. Ib. By a devise of all the rest and residue of the real estate of the testator, the rents and profits, from the testator's death to the time of the vesting of the estate, will pass; and whoever takes the legal estate, in the meantime, will be answerable for the rents and profits. Ib. Where the executory devisee was illegitimate, and it did not appear that the testator had any lawful heir, and no person appeared to claim the inheritance, the executor of the testator, who had taken possession of the real estate, and was appointed guardian of the executory devisee, and received the rents and profits, from the death of the testator to the happening of the event on which the estate was to vest, was held accountable for them to the executory devisce. Ib. In case of an executory devise, the estate descends till the contingency happens, or passes by a general residuary devise. Trustees hold for the benefit of the heir. So where there is a prior, particular interest, which terminates before the happening of such contingency, the heirs take the intermediate profits. If such profits are bequeathed, the heirs take them as trustees. Pay's case, Cro. Eliz. 878. Hayward v. Stillingfleet, 1 Atk. 422. Hopkins v. Hopkins, Cas. Temp. Tal. 44. Stephens v. Stephens, ib. 228. Rogers v. Ross, 4 John. Cha. 388. A person to whom an executory devise is made may assign or devise his interest. It will also pass by descent. Pinbury v. Elkin, 1 P. Wms. 563. Goodright v. Searle, 2 Wils. 29; 1 N. Y. Rev. St. 725; 2 Saun. 388, k. n. In the great case of Thellusson v. Woodford, (4 Ves. 227; 11, 112,) it was settled that there was no limited number of lives after which an executory interest may vest. There may be an indefinite number of concurrent lives, and yet the limitation is in fact dependant only upon the life of the survivor. The object may be merely accumulation, and no interest given to the parties for whose lives such accumulation is to take place; and the limitation will be good, if made after any number of lives in being, and twenty-one years, and the usual period of gestation, afterwards. In this case, the devise was made by A. to the trustees in fee, to receive the profits for the lives of all his sons and grandsons born in his life, or living en ventre, &c. at his death, and invest them in other lands. Upon the death of the last of these descendants, the lands to be conveyed to the branches of the respective families of the sons, who would then be the heirs male of the bodies of the sons. In New York, by the Revised Statutes, an accumulation of rents, &c. must commence, either on the creation of the estate whence they arise, for the benefit of an infant then living, and to end upon his coming of age; or within the time prescribed for the vesting of expectancies, and only during the minority of those interested. Whenever the power of alienation is validly suspended, |