case story versus Lord windsor and other July see fripp v Chard railway   l I  Ch on a plea of a purchase for a valuable consideration without notice of the  plaintiff title it be sufficient to aver that the person who convey be seize  or pretend to be seize when he execute the purchase deed but where purchaser  set up a fine and nonclaim as a bar he must aver that the seller be actual  seize the defendant plead a purchase of the eight part of a colliery for a  valuable consideration without notice Mr Noel for the defendant go chief upon  the possession of year in the seller of this estate Lord chancellor where you  plead a purchase for a valuable consideration without notice of the plaintiff  title it be sufficient to aver that the person who convey be seize or pretend  to be seize at the time that he execute the purchase deed but if the purchaser  set up a fine and nonclaim as a bar to the plaintiff right it be not  sufficient to aver that at the time the fine be levy the seller of the estate  be seize or pretend to be seize convey c but you must aver he be actual seize  it be not necessary indeed to say that he be seize in fee for if you aver he  be seize ut de book tenement such seisito existent indeed Finis see to lift up  it will do vide baker v Pritchard ante though the plaintiff S be a legal title  yet he be proper in come into this court because this be not a title of land  but of a colliery which be a kind of trade and therefore a account may be take  of the profit here v vide bishop of Winchester v knight p W jesus college v  bloom post vol sayer v pierce Ves the defendant set up first a equitable bar  and second a legal bar to allow the first it must be bring within the rule of  this court the first objection be that there be not a sufficient denial of  notice because it be not avert the purchase money be atkins pay before notice  but only that the purchaser have no notice at or before the time of the  execution of the deed as it stand upon this plea the money may not be pay  before notice and if it be the establish rule of this court that notice must  necessary be deny at or before the execution of the deed and at or before the  payment of the money then there be not a proper averment here and therefore I  be of opinion this denial of notice be not sufficient unless it have go far  and show that the purchaser atkins er p have no notice before he pay the money  vide Fitzgerald v Burk ante Hardingham v Nicholls post vol then the plea must  rest upon the other bar which be a mere legal one and yet be equal good in  equity as in law provide it be plead with proper averment if it be a more  legal title and a man have purchase a estate which he see himself have a  defect upon the face of the deed yet the fine will be a bar and not affect he  with notice so as to make he a trustee for the person who have the right  because this will be carry it much too far for the defect upon the face of the  deed be often the occasion of the fine be be levy if a man indeed purchase  from a trustee and levy a fine he stand in the place of the seller and be as  much a trustee as he be vide Bovey v smith vern so in the case of a grantee of  a mortgagee though he levy a fine that will not discharge the equity of  redemption but there be fine and nonclaim that will bar notwithstanding notice  at the time of levy the material objection be that the plaintiff only claim  one that part and then it be a fine levy by one tenant in common and will not  bar the other it be so in many case but it will be carry it too far to say  that a person in possession of the whole levy a fine of the whole shall not  bar do ex they Fishar v Prosser cow p the operation of a fine and nonclaim be  not by turn it into a right but it be by force of the bar arise from the  statute of nonclaims atkins it have be say the statute of limitation will not  run against one jointtenant or tenant in common unless a actual ouster be make  and to be sure there ought to be some ouster but if after such ouster a tenant  in common or jointtenant continue in the possession of the whole for twenty  year it be a bar see read v Royston salk prince v heylin ante vol Fairclaim ex  they of Epsom v shackleton burr do ex they Fishar v Prosser Cowp so in the  case of a fine and nonclaim by one tenant in common it will bar his companion  or he who claim a share if he do not call the person levy to a account of the  profit for this have always be admit to be evidence of a actual ouster another  objection have be make that it can not be say to be a I open because there be  no coal way but that will not hold for though this may not be so great a  temptation to a person to claim yet it be enough to induce he to make a entry  but as to the objection that the fine be not sufficient plead to be a bar I  own I can get over it because in plead there must be the same strictness in  equity as in law for it ought to have be plead as a actual seize in the seller  and not that he be seize or pretend to be seize c but I will not overrule the  plea only order it to stand for a answer till the hear with liberty to except  save as to matter of account Lord chancellor the next day cite the two follow  case in support of the rule as to plead a fine read versus Royston ld raym  earl of Sussex versus ld raym