[lit-ideas] You be the judge/What is wrong with this picture?

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Sun, 8 Dec 2013 10:56:49 +0000 (GMT)

The philosophical significance of the following, in
particular for the understanding of law, will be left for further posts. Just
as one should perhaps understand some maths before embarking on the correct
philosophical understanding of mathematics, or one should understand some
physics before embarking on the correct philosophical understanding of physics,
so perhaps one should try to understand some law before embarking on the
correct philosophical understanding of law. So this example is offered as an
entry point to understanding the law and legal thinking, which may be of
interest in itself, aside from how it might be significant for the
philosophical understanding of the law.
The Legal Problem in Pilcher-v-Rawlins
  A trust for a house
may be used as a management device: the settlor of the trust does not want to
give the house to the beneficiary outright (for whatever reason – that the
beneficiary might squander the asset, is too young etc.), and so gives it to a 
trustee to manage it for the beneficiary.
In English law this trust device cannot be used without giving the trustee the
legal title or the common law ownership of the house (which they hold ‘for the
benefit’ of the beneficiary, so that the beneficiary may be regarded as having
the beneficial or ‘equitable’ ownership).
   The question raised
in Pilcher is what happens if the trustee
fraudulently passes off this legal title as being free of a trust i.e. they 
‘hide’ that their common law
ownership is subject to a trust – and sells the house to a bona fide purchaser 
   Say the trustee disappears
with the funds from sale and may not be found, or if found may have dissipated
the funds:- both the beneficiary and the BFP now want to claim their ‘ownership’
in the house – having a mere remedy against the fraudulent trustee is
second-best to having the secure asset of the house itself. So the issue is
whether the BFP takes their ownership free of the ‘hidden’ trust (so that the
beneficiary loses their beneficial or ‘equitable’ ownership) or whether the
beneficiary retains their beneficial interest/ownership (with the BFP’s legal
title subject to same trust that bound the fraudulent trustee)?
First exercise. 
If you were the judge, what would you do? What legal reasons
would you give?
Second exercise [to which there is a clue right at the bottom of this post].
In Pilcher the
result is that the Plaintiff, who is the beneficiary suing in the Court of
Equity for the trust to be enforced against the BFP, is “non-suited” for lack
of jurisdiction, and the Court of Equity rules that the BFP’s good faith
purchase of “a legal estate” for its proper value gives the BFP an unanswerable
defence to any claim by the Plaintiff-beneficiary.
Given this, what is wrong with the following account of Pilcher (published by a 
tutor in law at
Oxford)? [Btw market overt is an old
common law rule, from feudal times, that if a BFP bought goods at certain
designated ‘open markets’ then the BFP would get ownership even if the property
was stolen property – an exception to the general common law rule that a BFP
cannot get good title buying stolen property.]

“What is truly odd about the bona fide purchaser rule in
Equity and the market overt rule at
common law is that they stand out from the normal policy of the law, 
in respect of land. In general, the common law (in the narrow sense) protects
vested rights. It is in this sense a capitalist system. Owners do not lose
ownership by a mercantile transaction to which they have not consented, and the
bona fide purchaser from one who only appeared to have the right to sell, will
have to restore the property to the owner. Nor, inside Equity itself, will
transactions defeat vested equitable proprietary interests: the bona fide
purchaser of an equitable interest from one who had no right to transfer it
will find he has nothing. Only in the third case of a conflict between the
beneficiary under a trust and a transferee of a legal estate from the trustee
does security of transactions prevail over security of vested proprietary 
The Pilcher v. Rawlins rule cannot
therefore sensibly be explained by fair play (unless one is prepared to
castigate the ‘vested rights’ solution as unfair), and indeed it is as hard to
see the moral superiority of one side over the other as it is hard to
disapprove of a system which comes down clearly and consistently on one side or
the other. The only unacceptable position must be the one we inherit, where we
sometimes prefer vested rights and at other times transactions, without letting
the purchaser of a legal estate know in advance which rule will apply to him.
(The bona fide purchaser of a legal estate cannot tell in advance either from
the nature of the location or the nature of the subject matter being
transferred, whether he is buying from a fraudulent trustee or from someone
without legal title at all who is able to misrepresent himself as legal owner,
and thus has no way in advance of knowing whether he will win or lose. The
dishonest trustee and the common law crook will look identical to him.) The
English explanation of this particular rule comes from constitutional law, from
the relationship between common law and Equity, and was clearly seen by at
least one of the judges in Pilcher v.
Rawlins. It is a matter of jurisdiction, not a matter of policy.”
[Clue: this account of Pilcher is very, very wrong.]


On Saturday, 7 December 2013, 17:40, "Jlsperanza@xxxxxxx" <Jlsperanza@xxxxxxx> 
In a message dated 11/30/2013 1:46:31 P.M. Eastern Standard Time,  
profdritchie@xxxxxxxxx writes in a post about World Wide Words on 'drown':

"I have been aware of a gap between some kind of legal or medical  
definition and the more common sense since a friend died in the late seventies  
early eighties of "near drowning."  It didn't seem like the sort of  thing a 
person could die of."

This from today's "World Wide Words", 

World Wide Words is copyright © Michael Quinion 2013

re: "a weakening in sense of drown drew numerous comments"

It may have Griceian implicatures. Or not.




"John Douglas noted that a similar shift has already occurred with  
electrocute, which originally meant to execute a person by means of 
It soon shifted to include dying by an accidental shock and has since come to 
mean suffering either injury or death. Gregory Harris similarly commented 
on  starve, which originally meant to die by any means (a close relative, 
German  sterben, retains that meaning) but in Middle English that sense was 
passed to  die, a word from Old Norse, and starve took on the specific sense 
of dying  through hunger; it has now become diluted in meaning to the point 
that it can  colloquially mean merely that the speaker is very hungry; we 
have to say starve  to death to make it clear that the process has been fatal. 
Michael Moore pointed  out that a parallel change is beginning to take place 
with drown because we are  seeing examples of drown to death."

"Dr John Smith commented, “Common usage in the US medical community  
describes near-drowning as the condition following immersion from which  
resuscitation is successful. If unsuccessful, the patient’s death is due to  

"The fuzziness about the finality of drown is not new. Dick Kenney  
reported, “In 1970, I went with a fellow worker onto a Massachusetts low tide  
to dig clams. He told me on the long way out that he drowned once and was  
wary of incoming tides. I was kind of startled by this statement as he 
looked  pretty much alive as far as I could tell. Since then, I’ve heard other 
uses of  drowned where the victim survived.” On the American Dialect Society 
list, John  Baker noted a couple of examples from 1869 that referred to a 
person having  drowned but then been resuscitated."

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