Equity and Common Law: Equitys Darling - Coursework Example

Equity’s Darling Students Name Institution Supervisor Date 1. Introduction The law on equity was brought about in order to investigate on the severity of the rules that come along with the common law. In this way, the law tried to show that one does not have to only replace or add to the common law to define property law, however the law on equity grew up as a different school altogether that leads to the system of common lay it two ways. One of the reasons that equity was created in the first place, and also its distinction from the common law traced back to the thirteenth century. In this way, it can be said that the laws of equity has been developed so as to explain the differences in the common laws (Walster, Walster, & Berscheid, 2008). According to the law on equity a person who claims a property or an estate for that matter, can only be successful in making that claim only when that claim can be matched with an existing writ. In this way, any petition for the remedies will be made to the government, long time ago this was made to the king of the land, they claim was also delegated to the chancellor. In this way, Equity became a type of supplementary jurisprudence that was intended to fill up the gaps in common law (Bossu, Henrotte, & Bossard, 2012). Equity and common Law The common law and the law on equity have always worked separately; in the past this law was administered by different courts until the time that the judicature act joined them together. In this way a claimant was able to go to court and have equity and the common law at his disposal instead of having to move from one court to the other. However, even though the two were merged, the two areas of law did not work the same way. This means that the rules and regulations that were applied in the common law and on the side of equity existed separately as they had done before. This is important as it ensures that equity has a place that allows its application to be used as a substitute for common law (Bossu, Henrotte, & Bossard, 2012). In the same way, the quote by Moffatt has been revealed in form of tryst whereby the law still provides for a fundamental difference between equitable rights of the property and the legal rights. In this way, the trust will mean that there will be an offer to the duty or the average accumulation of the obligations which will respond to the person who will be referred to as the trustee (Moffat, Bean, & Probert, 2009). At the same time the trustee will be bound to hold the property in the place of the beneficiary. In the common law thus, the property will remain in the hands of the trustee, on the other hand equity will hold that the property belongs to the beneficiary. According to Lord Templeman Equity is meant to supplement, however it should not be taken as laws (Walster, Walster, & Berscheid, 2008). This has been one of the most argued issues when it comes to property law. However some people argue that equity is acts in the opposite of nature, order for equity to work well, it has been suggested that the rule in equity would be different when applied to common law, this would naturally lead to conflict and contradiction. Also according to the judicature act, the debate around the issue of nature of equity becomes more relevant, this is because both systems will be more conflicting when they are disposed to the judge. Example of Equity and Trust According to Moffat, (2009) the use of trust as an example of property law, there is a point that which is thought is a contradiction that comes in between common law and equity. For example, a friend is a trustee who makes him the owner with regard to law, then a widow is the beneficiary this makes the widow the owner in equity. In this case equity becomes contradictory. This is because things become different when there is no equity. In this case, the widow will ask the friend to hold the property on her behalf, but the friend, when it comes to common law does not have to do this (Moffat, Bean, & Probert, 2009). On the grounds of Equity, the Widow can do as she pleases because she is now the owner of the property. In the same way, the friend will have not rights over the property, meaning that he has no right whatsoever to use of enjoy the property by any means. According to Hopfield (2010), the parliament that enacts the statute which states that the friend, on being the trustee to the property for the widow remains under the duty to hold the property for the benefit of the widow and not to do what he thinks is right with the property. This statute thus contradicts very highly with the common law rule and needs to be repealed. In the same way, extending the issue to the modern law on trust and equity, equity and trust are usually opposite to the common law. In the same way, it is assumed that since equity reacts differently to a trust which is very different to the common how. In the same way, it is assumed that since the law on equity usually reacts in a different manner from the common law, this is different from what equity tries to achieve which is a substitute to the common law and it is not a contradiction. The law on equity thus builds upon the common law that is aimed at improving it. In this above example thus, the friend should be allowed to own the property in common law so that he is able to fulfil the wishes of the widow and will also be able to protect his interests in it. Since the widow is seen as the owner of the property according to equity, she will have the superior interest in the secured property. In this way, equity and common law are able to work together; this is also agreed by Maitland who looks at trust as the greatest and one of the most unique achievements when it comes to jurisprudence (Walster, Walster, & Berscheid, 2008). To add to this, Moffatt is not agreeable with the idea of have two owners of the land, he says that if the friend ‘trustee’ and the widow ‘beneficiary’ were both the owners of the property, then there would be the contradiction in which hohfled tried to address. Maitland also adds that equity never means that the cestuique trust becomes automatically the owner of the property, it is in this manner seen as if the owner of the property will remain to be the ‘trustee’ however there should be an added burden of proof to support this. To add on this, if there is evidence of contraction, the Maitland points out that the Judicature act should be abolished (Moffat, Bean, & Probert, 2009). In this way it seems that equity becomes more of a rival to the common law of the land, in this way equity darling should not be encouraged. This is because equity becomes more of an unfair system, there is need for common law in order to make it survive single handedly, it is actually nothing as it forces on the rules that were nurtured in the pre-existing common law (Walster, Walster, & Berscheid, 2008). By use of the above example if say we were to abolish the rule on equity, then common law will be able to stand up fine on its own. In the same way, if the common law was to be abolished the equity darling will become anarchy, this is because equity cannot be able to stand alone in common law and is also not able to go against it, equity is meant to work with it to create a more just system. As this stands then, equity is in this case seen as addition to the common law and added extra. In relation to the normal law the rules of equity to trust does not say that common law is in any way wrong, however, it is meant to add rules which only exists within equity, in this way the existing common law rules will still stand. By using the example of a trust them, the common law will rule that the friend ‘trustee’ will become the owner and in equity will be able to agree to this (Poitas, 2010). However another fact needs to be considered, and this is that the trustee should be allowed to hold the property on the beneficiary’s behalf. If there was no common law, then the issue of trust or the trustee will become inexistent, if the trustee could not be the owner of the property at law, or else he would be able to fulfil is duty as the trustee the behalf of the beneficiary. Without the intervention of the trust then the law alone can be able to allow for the trustee to do anything with the property as per the direction of the beneficiary (Walster, Walster, & Berscheid, 2008). Equity Darling and the rights of the Beneficiary This can be explained well in the Pilcher v Rawlins1 case where a father set up a trust for his children. In this way there were three trustees one of whom was Pilcher who was a solicitor and also the children’s uncle. The trustees the advanced funds to Rawlins on the security of a mortgage which explained the existence of that trust. During this time two of the trustees died which meant that Pilcher remained the sole trustee. Because of this, Pilcher and Rawlins connived in a fraudulent scheme. Rawlins being the solicitor prepared an abstract of title making no mention of the mortgage. In the same case, Rawlins the purported to convey the property to the other trustees who had no notice of the trust or the fraud. With this regard before that, Pilcher executed the title deed that reconveyed the property to Rawlins free of the mortgage. This was not on the grounds that the loan had not been repaid. Pilcher and Rawlins in this case agreed that the reconveyance to Rawlins would only be produced if it would be necessary. The other two trustees had no notice of this conveyance neither (Petite, 2004). Sooner the fraud came to light and the beneficiaries decided to declare that they were the beneficial owners, for this reason, an order that the other trustees convey the title back to the title back to the land. At this the beneficiaries failed on the basis that the trustees were bonafide purchasers of the value without notice of a legal estate. Discussion By use of the above example, the conveyance the property to Pilcher and Rawlins in reference to the trust was an essential element of the trustee’s title. However this was not able to fix them with constructive notice. Because they had actually acted diligently at the time of the purchase and in the same way they had actually believed that they had good title. The later conveyance to Rawlins just came to the light in the course of the proceedings. During that relevant time, the other two did not know and neither did they have a means of knowledge (Hammond, 2010). Property rights vs Equity Darling Looking at the above case, property is the most common issue when it comes to law. Propery is the only thing that provides for the basis of the criminal and civil law in both common and civil law jurisdictions. When it comes to criminal law, there are other offenses such as theft or obtaining property under deception that provides proof of criminality with the rights of another person’s property (Moffat, Bean, & Probert, 2009). Similarly, when it comes to civil law there are a number of torts includes trespass, conversion an detinue involve unwarranted interference of rights to hold the property. It is with this regard that tangible and physically scarce items that property laws are able to sit most comfortable with resource allocation and pare to equilibrium. When it comes to the law of property there is the role of providing for an efficient response on the issue of scarcity. This proofs that it is not even accidental that older times economics were supporters of the legal system that had a strong emphasis on the protection on the rights to own property (Bossu, Henrotte, & Bossard, 2012). Property law is thus used to allocate scarce resources that are available between competing needs and also provides for a chance in the backdrop for a capitalist economy to the function of the property. With regard to classical economists prices are the ones that will provide for the clearest and the most transparent signal for efficient resource allocation to be realised. Without contracts and property laws there is never going to be equilibrium due to the fact that there would be no security on tenure. In the same way, when there are high prices the high profits suppliers will be able to run away from producing and supplying to the market in the absence of specific property protection (Kessler-Harris, 2003). With regard to Pilcher and Rawlins property, they happen to be the legal interest and therefore they will have to be bound by them. Rawlins lease will be been created orally or written, however Rawlins needed to have a deed for this. in the same example it can be agreed that the leases are for a fixed period and therefore it should therefore be honoured to the end unless the person agrees to terminate it (Hunt & Him, 2001). In the same way one can also argue that there an issue of overreaching where there is a reasonable doubt just like any other case on the right to own property have come across the lease holder in order to make the lease more binding upon him. In relation to the right of way, it can also be agreed that as it can be seen to be a legal interest therefore, any person who purchases the land should be bound by the right of way. This is because as one has been allowed to make payment then it can be said that the issue will become more beneficial to the trustee as he or she would be the one receiving the benefit of the property. On the other had also, this may not fully benefit the beneficiary due to the fact that he appears not to have gotten anything from the whole case, by this case then it should not benefit the trustee unless a similar payment is made, or a similar agreement is made. It should also be argued in that way perhaps (Hudson, 2004). As with the case of Hunt vs. canary2, it is suggested that if there is still not much of a reasonable inspection by purchaser to see as to whether or not there are any persons with interest in land, the interest can also be protected by a constructive notice. Thus this suggests that the rights of the beneficiary will be protected. However the trustee is seen as being the bonafide purchaser of the property, it can thus be argued that he has bought the property without malice meaning that the person is not aware of such interests, unless the person has totally ignored then has was the case with The Barclays Bank PLC v O’Brien if this does not come to be the final case, then the person should not be bound by them. (Brown, 2005) Conclusion In conclusion to the above discussion because the establishment of a court that is conscience in Chancery during the late 19th century, then the difference that will exist between legal and equitable proprietary interests shall be as follows. First of all, legal interests will always be considered to be binding on the basis that they are on or against the world, therefore this makes it a right in remembrance. However, the equitable interests will not be automatically binding on that they grounds of anyone due to the fact that there are two exceptions with equitable rights. However if a person in his own rights will be able to prove that they are the bonafide purchasers of the said property as in the Pilcher vs Rawlins case, be it for the value without notice, then the purchaser in this case will also have to take the property free from the equitable interest. This Is the kind of immunity that Kevin grey referred to in the quote that equity’s darling is free from jurisdiction of any court in chancery. Sources Bossu, S., Henrotte, P., & Bossard, O. (2012). World Scientific Publishing Company. Wiley; 2 edition. Brown, K. M. (2005). Preparing Future Leaders for Social Justice, Equity, and Excellence: Bridging Theory and Practice through a Transformative Androgogy (Christopher-Gordon School Leadership). Routledge. Hammond, L. D. (2010). The Flat World and Education: How America's Commitment to Equity Will Determine Our Future (Multicultural Education) . Teachers College Press. Hudson, A. (2004). Understanding Equity & Trusts. Routledge-Cavendish; 2 edition . Hunt, S. S., & Him, H. (2001). Feminist Perspectives on Equity and Trusts (Feminist Perspectives Series) . Routledge-Cavendish; 1 edition . Kessler-Harris, A. (2003). In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America . Oxford University Press, USA; 1ST edition . Moffat, G., Bean, G., & Probert, R. (2009). Trusts Law. Cambridge University Press. Petite, P. H. (2004). Equity and the Law of Trusts. Oxford University Press, USA; 12 edition . Poitas, G. (2010). Valuation of Equity Securities: History, Theory and Application. World Scientific Publishing Company. Walster, E., Walster, G. W., & Berscheid, E. (2008). Equity: Theory and Research [Misc. Supplies]. Allyn & Bacon; 1 edition. Read More