A Fresh Approach to the Ex Turpi Causa
and 'Clean Hands' Maxims*

Gilbert Kodilinye*

In Tinsley v. Milligan I the Court of Appeal has recently anempted to redefine the
scope of the maxims ex turpi causa non oritur actio and 'he who comes to equity
must come with clean hands' in the context of resulting and constructive trusts. In
this case the plaintiff and the defendant entered into a joint business enterprise
from the proceeds of which they purchased a house in which they lived together in
a lesbian relationship. The legal title was conveyed into the sole name of the
plaintiff, but on the understanding that the parties should each be entitled to a
beneficial half-share. This entitlement was not embodied in any contract but arose
"by reason of [their] equal contribution to the purchase price and in accordance
with the declared intentions of both parties." Soon after the purchase the parties
quarrelled and the plaintiff moved out, leaving the defendant in occupation.
Subsequently the plaintiff sought possession of the house, asserting her legal title.
The defendant counterclaimed for an order of sale and for a declaration that the
property was held by the plaintiff upon trust for the two of them in equal shares.

The sole issue before the Court of Appeal was whether the defendant's
counterclaim was barred on account of the fact that, over a period of years, the
defendant, with the concurrence of the plaintiff, had made false claims to the
Department of Social Security for various benefits, and that their declared
purpose for having the legal title in the sole name of the plaintiff was to assist in the
fraud by misrepresenting to the DSS that the defendant had no stake in the
property and that she was only the plaintiffs lodger.2 The Court of Appeal held by
a majority, affirming the decision of the trial judge, that the defendant's claim was
not barred by the ex turpi causa or 'clean hands' maxims, since, notwithstanding
that the purpose of defrauding the DSS was illegal conduct of which the court
should take notice, to refuse to grant relief to the defendant would be to deprive the
defendant of her own property and to give it to the plaintiff who was equally
implicated in the fraud.

* Senior Lecturer in Law, University of the West Indies, Cave Hill Campus, Barbados.

I. [1992] 2 W.L.R. 508. See J. Martin, [1992] Conv. 158.
2. It is interesting that no attempt was made to categorise the parties' lesbian relationship as immoral
conduct barring a claim in equity.

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The actual decision in the case is unremarkable, but the main interest lies in the
reasoning of the three Lords Justices, whose ,judgments contain the most
comprehensive discussion yet of the modern scope and extent of the ex turpi causa
and 'clean hands' maxims and of their relationship with one another, with
particular reference to claims to beneficial interests under resulting or
constructive trusts.

An attempt will be made in this article to identify the modern approach to the
application of the maxims with reference to recent decisions of the Court of
Appeal.

Illegality at common law
As Kerr LJ stated in Euro-Diam Ltd. v. Bathurst,3 "the courts will not assist a
plaintiff who has been guilty of illegal or immoral conduct of which the courts
should take notice." It is elementary law that a court will not enforce a contract or
arrangement which is tainted with illegality (ex turpi causa non oritur actio); and
that where money or property has been transferred under an illegal agreement, the
court will not assist the transferor to recover it from the transferee (in pari delicto,
potior est conditio defendentis (or possidentis). To this latter maxim there are three
well-established exceptions where the court will permit recovery: (i) where the
parties are not in pari delicto (i.e., where the transferor is shown to be less
blameworthy than the transferee); (ii) where the transferor repents of the illegal
purpose before it has been carried out (the locus poenitentiae principle);4 and (iii)
where the plaintiff transferor can assert his title to the property without having to
disclose the illegal purpose.

Of these exceptions only the third was in issue in Tinsley v. Mill£gan and in a
number of other recent cases. Before considering the application of the exception,
however, it is necessary to consider the juridical basis of the ex turpi causa and in
pari delicto maxims as interpreted in recent decisions.

Public policy
It is clear that the application of the ex turpi causa and in pari del£cto defences
involves issues of public policy, and that such application depends on the
circumstances of the particular case. The modern view, which has been called a
"flexible approach'',5 was explained by Bingham LJ in Saunders v. Edwards:6

"Where issues of illegality are raised, the courts have to steer a middle course
between two unacceptable positions. On the one hand it is unacceptable that
any court of law should aid or lend its authority to a party seeking to pursue

3, [1988] 2 All E.R. 23, at p. 28.
4, See the discussions in G, Kodilinye, [1980] A nglo-Amen'canL.R. 28 and J. Martin [1992] Conv. 158.
5, Tinsley v. Milligan, supra n, 1, at p. 513.
6. [1987] 2 All E.R. 651, at pp, 665, 666 (CA),

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A FRESH APPROACH TO THE EX TURPI CA USA AND 'CLEAN HANDS' MAXIMS

or enforce an object or agreement which the law prohibits. On the other
hand, it is unacceptable that the court should on the first indication of
unlawfulness affecting any aspect of a transaction, draw up its skirts and
refuse all assistance to the plaintiff, no matter how serious his loss or how
disproportionate his loss to the unlawfulness of his conduct."

His Lordship also pointed out? that "the courts have tended to adopt a
pragmatic approach to these problems, seeking where possible to see that genuine
wrongs are righted, so long as the court does not thereby promote or countenance a
nefarious object or bargain which it is bound to condemn. Where the plaintiffs
action in truth arises directly ex lurpi causa, he is likely to fail. ... Where the
plaintiff has suffered a genuine wrong, to which allegedly unlawful conduct is
incidental, he is likely to succeed."

The 'public conscience test'
Another modern rationalisation of the courts' approach to the illegality defence,
which was first put forward by Hutchinson J in Thackwell v. Barclays Bank,S has
become known as the 'public conscience test'. The learned judge had suggested in
that case that the court should seek to answer two questions: "(1) whether there
had been an illegality of which the court should take notice, and (2) whether in all
the circumstances it would be an affront to the public conscience if, by affording
him the relief sought, the court was seen to be indirectly assisting or encouraging
the plaintiff in his criminal act."

The 'public conscience test' has been approved by the Court of Appeal in at least
three subsequent cases.9 One of these is Saunders v. Edwards,lo where the
defendant sold the lease of a flat to the plaintiffs for £45,000, after fraudulently
misrepresenting that the flat contained a roof garden. The trial judge awarded
damages to the plaintiffs for the tort of deceit, but the defendant appealed on the
ground, inter alia, that the plaintiffs' claim required them to rely on a fraudulent
apportionment in the contract of sale (which they had instigated) whereby the
fixtures and fittings had been overvalued and the flat itself undervalued - an
unlawful scheme to reduce the amount of stamp duty payable to the Revenue on
the conveyance of the flat. The defendant's appeal was dismissed by the Court of
Appeal. Kerr LJ emphasised 11 that the plaintiffs' action was not to enforce the
contract of sale nor to seek any relief in connection with it, but was a claim in tort
based on the defendant's fraudulent misrepresentation. The case had, therefore, to
be distinguished from the well-known decision in Alexander v. Rayson,12 which

7. Ibid ..
8. [1986]All E.R. 676, at p. 687.
9. Saundersv. Edwards [1987] 2 All E.R. 65 1;Euro-DiamLrd. v. Bathurst [1988] 2 All E.R. 23; Howard
v. Shirlstar Container Transport Ltd. [1990] 3 All E.R. 366.
10. [1987] 2 All E.R. 651.
11. At p. 659.
12. [1936] 1 K.B. 169.

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was an action in contract to recover arrears of rent under a lease designed to
defraud the Revenue. In Kerr LJ's view, the relevance of the ex turpi causa defence
lay mainly in the field of contractual claims and only rarely in tort. There were no
rigid rules for or against the application of the defence and, being based on public
policy, it depended very much on the circumstances of the individual case,
including the conduct and relative moral culpability of the parties. Nicholls LJ
took a similar approach 13 to that of Kerr LJ, adding that the 'public conscience
test' propounded in Thackwell v. Barclays Bank was a useful and valuable one and
should be applied in the instant case. It is not clear whether Nicholls LJ regarded
the 'public conscience test' as being restricted to actions in tort, or whether he
regarded it as applicable also to contractual and other claims. As far as the present
action was concerned, all three Lords Justices were in agreement that the
defendant's moral culpability greatly outweighed that of the plaintiffs, and that
the appeal should be dismissed.

Another recent case in which the 'public conscience test' was applied is Howard
v. Shir/star Container Transport Ltd .. 14 Here the defendants wished to repossess an
aircraft which had been hired out for private use in Nigeria, the hire instalments
being in arrears. They engaged the plaintiff, a qualified pilot, to fly the aircraft out
of Nigeria, contracting to pay him half of the agreed fee as soon as the aircraft had
been removed from Nigerian airspace, and the balance one month thereafter.
Being informed that his life might be in danger, the plaintiff flew the aircraft out of
Nigeria without obtaining air traffic control clearance, which was a breach of
Nigerian law. One of the issues in the case was whether the plaintiff was barred
from recovering the payment due in England on account of the illegal performance
of the contract in Nigeria.

Staughton LJ consideredls that prima facie the plaintiffs claim would be
unenforceable in an English court. "To take off from a Nigerian airport in breach
of regulations was central to his performance of the contract, as it was in fact
performed. It was in no sense an incidental illegality." However, this was clearly a
case where, despite the illegal performance, "the plaintiffs claim should not fail,
because the conscience of the court is not affronted." The factor which led to this
conclusion was that the plaintiff committed the offence in order "to free
himself . . . from pressing danger."

The 'public conscience test' has not received unanimous acceptance, however.
InPiusv. HUTll, 16 Dillon LJ considered 17 the test to be very difficult to apply, since
the public conscience might well be affected by matters of an emotional or political
nature which the court ought not to be required to take into account. Furthermore,
an appeal to the 'public conscience' would be likely to lead to a graph of illegalities

13. [1987] 2 All E.R. 651, at pp. 664, 665 (C.A.).
14. [1990] 3 All E.R. 366 (C.A.).
15. At p. 372.
16. [1990] 3 All E.R. 344 (C.A.).
17. At p. 362.

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according to moral turpitude, in which it would be necessary to distinguish
between serious and non-serious illegality, between the former categories of
felonies and misdemeanours, between offences punishable by imprisonment and
those which were not, and so on. His Lordship preferred the dichotomy between
cases where the plaintiffs action arises directly from the illegality and those where
he suffers a wrong to which the illegality is merely incidental - a distinction
applied by Bingham LJ in Saunders v. Edwards. IS Thus the latter decision could be
rationalised on the basis that the unlawful apportionment was merely incidental to
the plaintiffs claim, which arose not from the apportionment but from the
defendant's fraudulent misrepresentation.

The 'clean hands' principle
In Tinsley v. Milligan the plaintiff contended that the case was governed by the
maxim that 'he who comes to equity must come with clean hands'. On this
argument, once the court finds that property has been conveyed into the name of
one party for a fraudulent purpose, the court will not enforce a trust in favour of
the other party since his hands are 'unclean'. In such circumstances, the plaintiff
argued, the 'public conscience test' had no application and there was no scope for
any balancing exercise involving the relative moral culpability of the parties.

The leading modem examples of the application of the 'clean hands' maxim are
Gascoigne v. Gascoigne19 and Tinker v. Tinker.20 In Gascoigne, a husband who was
in debt to moneylenders took a lease ofland in his wife's name and built a house on
it at his own expense. His sole reason for putting the property in the wife's name
was to protect it from his creditors. When the parties became estranged the
husband sought a declaration that the wife held the lease as trustee for him. It was
held that the husband would not be permitted to rebut the presumption of
advancement which arose in favour of the wife by setting up his fraudulent
purpose.

In Tinkerv. Tinker,21 a husband who, unlike in Gascoigne, was not in debt atthe
time, transferred the matrimonial home into his wife's name. His purpose in doing
so was to protect it from possible future creditors, in case the business on which he
had recently embarked should fail. The Court of Appeal held that the husband
could not rebut the presumption of advancement by asserting that his intention
was to put the property out of reach of possible creditors. Lord Denning MR
explained the position thus:22

"I am quite clear that the husband cannot have it both ways. So he is on
the horns of a dilemma. He cannot say that the house is his own and, at one

18. [1987] 2 All E.R. 651 (C.A.).
19. [1918] I K.B. 223 (D.c.).
20. [1970] I All E.R. 540 (C.A.).
21. Ibid ..
22./bid., at p. 542. See also Maysels v. Maysels (1974) 45 D.L.R .. (3d) 337; Munro v. Morrison [1979]
V.R. 83.

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and the same time, say that it is his wife's. As against his wife, he wants to say
that it belongs to him. As against his creditors that it belongs to her. That
simply will not do. Either it was conveyed to her for her own use absolutely;
or it was conveyed to her as trustee for her husband. It must be one or the
other. The presumption is that it was conveyed to her for her own use; and he
does not rebut that presumption by saying that he only did it to defeat his
creditors. I think that it belongs to her."

The Gascoigne and Tinker cases are thus authority for the proposition that a
husband who voluntarily transfers property to his wife will not be able to rebut the
presumption of advancement or gift by showing that his real intention in making
the transfer was to defeat his creditors, for he "cannot be allowed to take advantage
of his own dishonesty. "23In accordance with the principle 'let the estate lie where
it falls', the husband will be unable to recover the property. A similar decision was
Cheuiar v. Cheuiar,24 where a father had transferred rubber plantations in Malaya
to his son in order to evade certain provisions of the Rubber Regulations of 1934.
The father was not permitted to rebut the presumption of advancement by
pleading his unlawful purpose.

Where a presumption of advancement applies, the position is thus clear; but
what is the position where the transferor (as in Tinsley v. Milligan) is not seeking to
rebut a presumption of advancement in the transferee's favour but is relying on a
presumption of a resulting trust in his favour? If in such a case the estate is left to
'lie where it falls', it could be argued that the transferor should recover on the
strength of his own equitable title which he can assert without disclosing the
unlawful purpose. This reasoning was applied in a Canadian case, Gorog v. Kiss,25
where the plaintiffs, who were husband and wife, had transferred property to the
defendant without consideration in order to defeat their creditors. The Ontario
Court of Appeal held that the plaintiffs' action to recover the property succeeded
since

"the plaintiffs did not have to rely on the illegal purpose in stating the facts
giving rise to the presumption of a resulting trust, and establishing their
right to the property unless the presumption was rebutted."26

As Professor D. W. Waters has explained, "the transferor has not needed to put
his illegal purpose in evidence. It is of no significance if the transferee tells the
court what the purpose was: the transferor is not relying on that purpose."27

23. Ibid ..
24. [1962] A.C. 294 (P.G.).
25. (1977) 78 D.L.R. 690. See also Marks v. Marks (1974) 18 R.F.L. 323; Swick v. Swick (1979) 12
R.F.L. (2d) 252.
26. At p. 695.
27. Law of Trusts, Srudies in Current Law, 1975, p. 12.

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A second possibility is that to allow the estate to 'lie where it falls' means that the
transferee will be able to rely on his legal title, as a court of equity will not permit
the transferor, whose hands are unclean, to claim his equitable interest.

This approach was adopted by Ralph Gibson LJ in Tinsley v. Milligan.28 Some
support for it can be found in Singh v. Ali,29 where Lord Denning took the view
that where two persons conspire to effect a fraudulent or illegal purpose, and
property is transferred in pursuance of that purpose, "the transferee, having
obtained the property, can assert his title to it against all the world, not because he
has any merit of his own, but because there is no one who can assert a better title to
it. The court does not confiscate the property because of the illegality - it has no
power to do so - so it says, in the words of Lord Eldon: 'Let the estate lie where it
falls'. "30

A third possibility is that the presumption of resulting trust can be rebutted by
evidence of the actual intention of the parties, whether that intention is to defraud
creditors or the revenue or some other purpose. In Cantor v. COX31 C, a
businessman, and T, a woman with whom he was cohabiting, purchased a house
which, in order to protect it from possible creditors of C, was conveyed into the
sole name ofT. After T's death C claimed to be entitled to a beneficial interest in
the property on the basis of a resulting trust arising from his contribution to the
purchase price. Plowman VC held that C's claim failed. The presumption of a
resulting trust had been rebutted by evidence of the actual intention of the parties,
which was to put the property out of the reach of possible creditors of C. It is
submitted, with respect, that this reasoning is unacceptable, for the court is in
effect permitting the transferee to set up the fraudulent purpose in order to rebut
the presumption of resulting trust. Since it is well settled that a transferor cannot
rebut a presumption of advancement by giving evidence of an unlawful intention,
it cannot be good law to permit a transferee to rebut a presumption of resulting
trust by such evidence. Such a 'double standard' would be clearly contrary to
justice and equity.

The judgments in Tinsley v. Milligan
In Tinsley, Nicholls and Lloyd LJJ reached the same conclusion though by
somewhat different reasoning, whilst Ralph Gibson LJ dissented.

Nicholls LJ considered that cases such as Tinker v. Tinker32 and Chettiar v.
Chettiar33 should not be interpreted as laying down an immutable rule "that in
every instance where a transfer of property is made for an illegal or dishonest
purpose, and that purpose is carried into effect, the transferor cannot thereafter

28. [1992] 2 W.L.R. 508, at p. 530.
29. (1960] A.C. 167.
30. At p. 176.
31. (1975) 239 E.G. 121.
32. [1970] All E.R. 540 (C.A.).
33. [1962] A.C. 294 (P.C).

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look to the court for assistance in obtaining a transfer, whatever the
circumstances" ,34nor, in his view, did they establish any special principle peculiar
to the Law of Trusts. His Lordship considered that these were merely examples of
cases in which, in particular circumstances, the court decided that to grant relief to
the plaintiff would have been an affront to the public conscience.

It is submitted with respect that it is incorrect to analyse the Tinker line of cases
in this way. They were actions in equity where the court was being asked to admit
evidence in rebuttal of an equitable presumption of advancement, and where the
'clean hands' maxim, not the common law ex turpi causa principle, was being
applied. It may well be that in this area the streams of common law and equity now
run in the same channel and that their waters have become mixed, but it is only
very recently, and certainly subsequently to the Tinker and Cheuiar decisions, that
this mingling has occurred. If the 'public conscience test', first enunciated in
actions in tort, does apply to the equity cases, then this application may need the
sanction of the House of Lords or the Privy Council at some future date. That is
not to suggest that it would be undesirable to apply such a test in equity cases such
as Tinsley v. Milligan. On the contrary, such a test is sufficiently flexible to enable
the court to consider all the relevant circumstances, including the relative
blameworthiness of the parties, the degree of unlawfulness of the purpose and the
extent to which it has been, or could be, carried out, the value of the property and
the possible loss to the revenue, and any other matters which the court ought to
take into account in deciding whether recovery should be permitted.35

Another main feature of Nicholls LJ's reasoning was what he called "the
non-confiscation approach". As we have seen, in Singh v. Ali Lord Denning had
stated that "the court does not confiscate the property because of the illegality - it
has no power to do so - so it says, in the words of Lord Eldon: 'Let the estate lie
where it falls' ."36Nicholls LJ took the view that the 'non-confiscation' principle
(which was the basis of the exception that a transferor may recover property
transferred for an unlawful purpose ifhe can assert his legal title without having to
disclose that purpose) was as applicable to equitable interests as it was to legal
estates. Thus, on the facts in Tinsley, "if the court will have regard to and will
enforce the plaintiffs legal title and will disregard the fraudulent purpose for
which that title was vested in her alone, surely the court must also have regard to
the equitable title vested in the defendant and give her like assistance."37

Thus Nicholls LJ held that the defendant's counterclaim succeeded both on the
above ground and on the ground that, far from it being an affront to the 'public
conscience' to grant relief, it would be an affront to the 'public conscience' not to
do so; for to refuse to grant relief to the defendant would be to deprive her of her
own property, which would be a disproportionate penalty.38

34. [1992] 2 W.L.R., at pp. 518, 519.
35. See Scott on Trusts 3rd edn., Vol. V, para. 422.5.
36. See nn. 29 and 30, supra.
37. At pp. 519, 520.
38. [1992] 2 W.L.R., at p. 516.

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Lloyd LJ reached the same conclusion as Nicholls LJ, but by a slightly different
route.39 In his view, the defendant did not need to rely on the illegal purpose to
establish the common intention (i.e., that the house was to be held on behalf of
both parties in equal shares) on which her claim rested. Although the defendant
was bound to answer in cross-examination that the purpose for putting the house
in the plaintiff's name rather than in joint names was to deceive the DSS, this
illegal purpose did not taint the defendant's claim, as it was "purely collateral or
incidental". It was "relevant only as a matter of history." His Lordship was not
convinced that it was necessary to create a separate category of 'non-confiscation'
cases. In his opinion, it was preferable to regard them as being cases where the
plaintiff was not seeking to enforce, or found his claim on, an illegal transaction.
He then went on to say that there was a second question to be asked, namely,
whether, despite the finding that the claim was not based on an illegal transaction,
the court should nevertheless refuse to entertain the claim on overriding grounds
of public policy. Lloyd LJ found the 'public conscience' test imprecise and
difficult to apply, but he considered that he was bound by recent decisions which
had approved it. In the instant case, it would not, in his opinion, affront the 'public
conscience' or shock the ordinary citizen for the court to entertain the defendant's
claim to a beneficial half-share in the house. As for the Tinker principle,
Lloyd LJ saw no reason why the court should not, in its equitable jurisdiction,
adopt the more flexible attitude shown by the common law. In this connection, it is
noteworthy that Nicholls LJ had also emphasised that the 'clean hands' maxim
was to be applied no less flexibly than its common law counterpart, and that it
could not be that equity, "rooted in giving relief against unconscionable conduct,
shuts its eyes and applies a rigid rule when the common law acts with its eyes wide
open to all the circumstances. "40

Ralph Gibson LJ, dissenting,41 considered that the questions to be answered
were: (i) whether the defendant's counterclaim was within the 'clean hands'
principle as applied in cases such as Tinker; (ii) if it was, whether more recent cases
had modified that principle. He answered the first question in the affirmative,
considering that the arrangement between the plaintiff and the defendant, under
which the plaintiff was to be apparently the sole owner of the house, was at least as
much a dishonest plot on the part of the defendant as was that of the husband in
Tinker's case. As for the second question, his Lordship took the view that recent
cases in which more flexible criteria such as the 'public conscience' test had been
applied were actions based not on any illegal contract or arrangement but on some
tortious conduct to which the illegality was merely incidental. It could not be said
that any of these cases were directed to any modification of the rule in Tinker's
case. Ralph Gibson LJ referred to the deterrent effect of a strict application of the

39. At pp. 532-535.
40. At pp. 518, 519.
41. At pp. 521-531.

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ex turpi causa and 'clean hands' maxims and considered that the latter principle
should be applied in the instant case. His final point was that the plaintiff was
entitled to rely on her legal estate under the 'non-confiscation' principle since
"when the court refuses to enforce a contractual right, or an equitable right, it
leaves the party who successfully raises the defence in possession of whatever legal
rights he has in the subject-matter of the contract or arrangement, as in Gascoigne
v. Gascoigne and Tinker v. Tinker."

It is respectfully submitted that although Ralph Gibson LJ was correct in his
view that cases such as Thackwell, Saunders and Euro-Diam were actions in tort,
and were not directed to modification of the equitable 'clean hands' maxim as
applied in Tinker, it may well be desirable, as Nicholls and Lloyd LJJ suggested,
that the new flexible approach in those cases should be applied to the equitable
maxim. Quite apart from the need to balance the respective culpability of the
parties, it is unsatisfactory that the rights of a transferor to claim a beneficial
interest in property should depend upon whether a resulting trust (as in Gorog v.
Kiss42 and, indeed, in Tinsley) or an advancement (as in Tinker and Gascoigne43 is
presumed. The result of this distinction is that, for example, a mother who pays for
property and has it conveyed to her daughter in order to defraud the revenue may
nevertheless claim a beneficial interest because a resulting trust in her favour is
presumed and she is not driven to rely on the illegal purpose, whereas a father who
does precisely the same with the same fraudulent intent will be barred because the
presumption of advancement in the daughter's favour cannot be rebutted by
evidence of the fraudulent purpose. Application of the flexible test in the
Thackwellline of cases would make it unnecessary to consider whether a resulting
trust or an advancement was to be presumed.

Conclusion
The judgments of Nicholls and Lloyd LJJ in Tinsley v. Milligan have emphasised
the current judicial thinking as regards the application of the ex turpi causa and
'clean hands' maxims. It seems that the courts now see the two maxims not as
separate principles but as expressions of the same broad principle, founded on
public policy, that the court will not entertain an action in contract or tort or to
establish an equitable right if to do so would be an affront to the public conscience.
There is no rigid rule that where a contract or arrangement is tainted with
illegality, the court will 'draw up its skirts' and refuse all relief, as has sometimes
been suggested. Rather, the court should attempt a balancing exercise in which the
relative blameworthiness and moral culpability of the parties is considered. The
judgments also affirm the principle that where a claimant seeks recovery of
property transferred under an unlawful agreement or arrangement he will be
entitled to recovery if he can establish his title without having to disclose the
unlawful purpose, and that this applies as much to an equitable as to a legal title.

42. See n. 25, supra.
43. See nn. 19,20, supra, and accompanying text.

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