Equity’s Darling and the legal estate in the nineteenth century

Reilly, A. (2022) Equity’s Darling and the legal estate in the nineteenth century. Journal of Equity, 16(1), pp. 1-27.

Abstract

Bona fide purchase of a legal estate represents a fundamental doctrine of Equity jurisprudence. The orthodox understanding of that defence explains its availability and rationale in terms of the defendant’s acquisition of a legal property right. However, there are ‘exceptions’ to this, such as when the defendant purchases an equitable interest and seeks to defend it against a prior ‘equity’ (known as the rule in Phillips v Phillips). This seems an arbitrary approach: why emphasise one instance of the defence, the purchase of a legal title, while describing the other instance as an ‘exception’? When we examine the historical development of bona fide purchase, we do not find a convincing explanation for this approach. Instead, the orthodox understanding of the defence as we know it today is revealed for what it is; a habit of mind that formed in response to a series of contingent developments in the mid-19th century.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Reilly, Dr Adam
• Authors: Reilly, A.
• College/School: College of Social Sciences > School of Law
• Journal Name: Journal of Equity
• Publisher: LexisNexis
• ISSN: 1833-2137
• First Published: First published in Journal of Equity 16(1): 1-27
• Publisher Policy: Reproduced in accordance with the publisher copyright policy

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