Priorities in the Law of Mortgages

ly, seems to have an equal equity so that the maxim, qui prior est tempore, potior est jure, applies as to the third incumbrancer. By acquiring the first mortgage, the third mortgagee acquires, by substitution, the rights of the first mortgagee in respect to the security held by him, and he justly acquires nothing more.48 estate. The doctrine of the latter case was considered inapplicable to equitable interests in land until the passage of The Law of Property Act, 1925, 15 Geo. V, c. 20 § 137, which changed the rule so as to include such interests within the operation of that doctrine. 47 Kent, op. cit. supra note 42, at p. 177. 48 In Wortley v. Birkhead, 2 Ves. Sen. 571, 574 (1754), Lord Hardwicke discussed the doctrine of tacking as follows: "It [the rule that a third mortgagee having taken his mortgage without notice of a second mortgage on the land, then purchases the first mortgage on the property, shall take priority over the second mortgage] could not happen in any other country but this; because the jurisdiction of law and equity are administered here in different courts, and creates PRIORITIES IN THE LAW OF MORTGAGES The doctrine of tacking applies to all property, real or personal.49 "The application of the doctrine of tacking to personalty [in England] is to a great extent excluded by the rules as to priority by notice in case of mortgages of choses in action and equitable interests in funds.., and by statutory regulations as to priority by registration in cases of mortgages of chattels and ships." 1o "Protection by tacking was abolished [in England] by the Vendor and Purchaser Act, 1874... but this enactment was repealed as to England by the Land Transfer Act, 1875 ... and as to Ireland by the Conveyancing and Law of Property Act, 1881 ... Tacking is not applicable to registered charges under the Land Transfer Act, 1875... By the Yorkshire Registries Act, 1884... no priority or protection by legal estate or tacking is given or allowed after the commencement of the Act... Registration in Middlesex is not notice, and the general rules as to tacking apply to mortgages of lands in that country... The doctrine of tacking is virtually excluded in Ireland by the Irish Registry Act (6 Ann., c. 2) ... ""5 It has been abolished in England, except in certain situations, by the Law of Property Act, 1925, sec. 90. In the United States the doctrine of tacking is generally rejected. It has been criticised on the ground that it is inconsistent with principles of equity.52 The doctrine could have no application in a "lien" jurisdiction for the mortgagor remains the legal, as well as the equitable, owner of the mortgaged premises subject to the legal lien of each mortgagee. Even in a "title" state the first mortgagee (legal) different kind of rights in estates. And, therefore, as courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior force and strength to a legal title to estates . . . if the law and equity are administered by the jurisdiction, the rule, qui prior est tempore potior est jure, must hold." 49 In Calisher v. Forbes, L. R. 7 Ch. 109 [18711 an equitable incumbrancer of a fund was allowed to take a further advance as against mesne incumbrancers. 50 Note, 18 Eng. Rul. Cas. 526. 51 Note, 18 Eng. Rul. Cas. 526, 527. 52 Campbell, op. cit. supra note 44, at p. 409, note 3.