Tacking

Tacking

English Law: Tacking in the Past

The union of securities given at different times, so as to prevent any intermediate purchasers claiming title to redeem or or discharge one lien, which is prior, without redeeming or discharging other liens also, which are after his own title. Jer. Eq. Jur. B. 1, c. 2, 1, p. 188 to 191; 1 Story, Eq. Jur. 412.

Developments

It is an established doctrine in the English chancery that a bona fide purchaser and without any notice of a defect in his title at the time of the purchase, may lawfully buy any statute, mortgage or encumbrance and if he can defend by those at law, his adversary must have no help in equity (see more about this popular legal topic in the U.K. encyclopedia) to set those encumbrances aside, for equity (see more about this popular legal topic in the U.K. encyclopedia) will not disarm such a purchaser. And as mortgagees are considered in equity (see more about this popular legal topic in the U.K. encyclopedia) as purchasers pro tanto, the same doctrine has extended to them and a mortgagee who has advanced his money without notice of any prior encumbrance, may, by getting an assignment of a statute, judgment or recognizance, protect himself from any encumbrance after such statute, judgment or recognizance, though beforehis mortgage; that is, he will be allowed to tack or unite his mortgage to such old security and will by that means be entitled to recover all moneys for which such security was given, together with the money due on his mortgage, before the prior. mortgagees are entitled to recover anything. 2 Fonbl. Eq. 306; 2 Cruise, t. 15, c. 5, s. 27; Powell on Morg. Index, h. t.; 1 Vern. 188; 8 Comyn’s Digest (A digest of the laws of England, 1822) 953; Madd. Ch. Index, h. t.

Details

This doctrine is inconsistent with the laws of the several states, which need the recording of mortgages. Caines’ Cas. Er. 112; 1 Hop. C. R. 231; 3 Pick. 50; 2 Pick. 517.

Other Aspects

The doctrine of tacking seems to have been acknowledged in the civil law, Code, 8, 27, 1; but see Dig. 13, 7, 8; and see 7 Toull. 110. But this tacking could not take place to the injury (see more about this popular legal topic in the U.K. encyclopedia) of intermediate encumbrancers. Story on Eq. 1010 and the authorities cited in the note. [1][rtbs name=”history-of-english-law”]

Resources

Notes and References

  1. Partialy, this information about tacking is based on the Bouvier´s Law Dictionary, 1848 edition. There is a list of terms of the Bouvier´s Law Dictionary, including tacking.

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