THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES

SCHOOL OF LAW

A SELECTION

LEADING CASES IN EQUITY.

ftetitTi JXotcs.

YOL. I. PART SECOND.

FREDERICK THOMAS WHITE,

AN
I
>

OWE^ DAYIES

TUDOR.

(OF THE MIDDLE TEMPLE, ESQHS., BAJBRISCEKS-AT-LAW.)

TOGETHER WITH NOTES AND AMERICAN CASES

BY

FRANKLIN

S.

DICKSON, LL.

B.

FROM THE SIXTH

(1SS6)

EDITION.

PHILADELPHIA
1889.

THE BLACKSTONE PUBLISHING COMPANY.

Entered according to the Acts of Congress, in the year 1889, by the BlackSTONE Publishing Company, in the office of the Librarian of
Congress, at "Washington, D. C.

y\

NOTE.

We suggest to our
our

patrons that, to facilitate the labor of the

Judges and Reporters, they

SERIES, and add

TOP PAGING of books of [TEXT BOOK SERIES.]Editor.

cite the

(3)

6R2KB51

(4)

UULME

V.

TENANT.

* 537

HULME

v.

TENANT.

* 53(3

30th June.

28th July.

14th December, 1778.

C. C.

[REPORTED 1 BRO.
[S.

16.]

C, 2 Dick. 500, Keg.

Lib. 1778.

A fol.

90.]

Wife's Separate

Property.] Bond of a

feme covert jointly with

her husband, shall bind her separate property.

was filed by the obligee of a bond, to secure 1801. entered by the defendants, husband and wife, against the husband, wife, and her surviving trustee, to recover the sums secured oat of
bill

The

into

the wife's separate estate.

Upon
trustees;

the marriage, the estates of the wife

one

part, consisting of freehold

had been conveyed to and leasehold lands, in

the wife for her

trust to receive

and pay

the rents

and

profits to

separate use, and to convey the estate itself to such use as she, by

her last will in writing, or by deed or writing under her hand and
seal,

executed in the presence of two witnesses, should appoint; in

default of appointment, to the use and behoof of her heirs and assigns; other parts to be sold,

and out of the produce,

1000Z. to be

laid out according to the directions of the wife, the interest

profits to

and

be paid to her, and the principal

to her, or

her order,

by note or writing under her hand ; and for want of such appointment, to her executors, administrators, and assigns.

This 1000Z. had been raised, and the whole, or the greatest part

was with respect to the remedy against the other estate. In 1709, the husband borrowed of the plaintiff, Mrs. Hulme, 50Z., upon his and his wife's bond. In 1770, having occasion for a further sum, the wife herself applied to the plaintiff, and borrowed 130Z., paid the interest due upon the former sum of 50Z., and [the husband and wife] g?.ve a new bond for the 180Z. *The cause had been heard before Lord Bathurst, who * 537 ] dismissed the bill. It came on now to be re-heard.
applied, so that the question in the cause
[

538

IIULME
Mansfield opened for the

V.

TENANT.
but the reporter was ab-

Mr
Bent

plaintiff,

Attorney-General Wedderburne for the defendants. The plaintiff is not entitled to the relief of a court of equity, but is to Trustees be left to make the best she can of the security at law.
Mr.
for a

woman

are appointed for the purpose of preventing her from

doing acts prejudicial to herself, under the influence of her husband. The husband's credit not being good, the plaintiff has taken the
wife's bond.

The husband was

indebted.

He and

his wife are co-

obligors, and it is done with the approbation of the plaintiff's attorney, who must know it was void. He ought to have insisted upon a mortgage of her separate property. This Court will never look

upon bonds as appointments where the party could not enter into In many cases of bonds with penalties, the Court conthe bond. as the form only, and as evidence of the substance, bond siders the suffer the party to be free upon the payment of the not and will penalty; but in the case of an infant, where it is voidable only, the taking of the bond will not aid the taker in equity. I do not contend that a married

woman

cannot contract in respect of her sepa-

rate property, but the party contracting

must take

a security agreesecurity.

able to the nature of the property; he cannot better bis

Peacock v. Monk, 2 Ves. 190 (t>), closes with a dictum, the authority of which is very doubtful; it has no affinity to the principle question.

Mr. Selwyn, on the same side. There is no case where the point has been determined that a bond, in which the wife joins her husband, binds her separate property.
1
!

Norton

v.

Turvill, 2 P. "\Yrns.
is

(w), was against the wife's representatives, which

t

very dif-

from the present against the separate property settled upon

life.

her for

[Lord Chancellor Thurlow.

fect of that case
is,

Grigby

v.

Cox, 1 Ves. 517,

18] appears to be a decree for a specific performance.

The*
with

de-

that

it

does not state the trust.

It is
re-

said that a to

feme covert
different

is

to be considered as a

feme

sole,

every authority she can exercise over her separate esit is

but
itial

to the
is

where the consent of the trustees is made conveyance, although the mere appointment of
her of that authority; for there

trustees
e

not sufficient to deprive

Belt's Suppl. 342.

W>. 152, pi. 14.

>Eq. Ca.

1IULME

V.

TENANT.

539

must be trustees
perty.

(.r),

otherwise she could have no separate pro

Biscoe

Mr. Selwyn.

In

v.

Kennedy

(y), Sir

Thomas Clarke

thought it to be considered as the property of a feme sole; but, the bond was given before the marriage of the parties. case, in that

was

\Lord Chancellor Thurlow. Do you consider that case as deciding that her property was liable to her acts only while she was a

feme sole?
by virtue by some means referring to her separate property; but in this case, there is no reference whatsoever to her separate property, or consent of trustees. In It is not wholly immaterial that the plaintiff has sued at law. Maohorro v. Stoneh&use, in July last, upon marriage a sum was agreed to be laid out in the funds, upon trust that the dividends should be to the separate use of the wife; * the [ * 539 plaintiff bought the interest during the lives of the husMr. Selwyn.
of a power, or with the consent of the trustees, or
]

A feme covert can execute no act except

(,/) Trustees are not. essentially necessary for the creation of a trust for the separate use of a married woman, as the husband will be converted into a Sec Bennel v. Davis, 2 P. Wins. 316; Parker v. Brook, 9 Ves. trustee for her. 583; Rich v. Cockell, 9 Ves. 369. Biscoeu Kennedy, at the Rolls, 21st July, 176-2. The defendant, Jane (//) Kennedy, then the widow of Ormond Tomson, Esq.. being indebted to the plaintiff Biscoe. in Clli by bond 22nd of April, 1755, and being possessed of several leasehold houses, and of 1000 East India Stock, by settlement on her marriage with the defendant James Kennedy, all her personal estate (excepting 500 East India Stock, which the husband was to have) was conveyed to the defendant McCulloch, in trust for the separate use of the defendant Jane. The marriage having taken effect, the plaintiff' filed his bill (without having sued the husband) to have the separate estate of the wife applied to thepaymentof The plaintiff then sued out writs against the debt; which bill was dismissed. James and Jane Kennedy; but James Kennedy absconding, could not inserved, and the plaintiff proceeded to outlawry, and then filed this bill, to be The defendant insisted that during her paid out of the wife's separate estate. husband's life, her separate property was not liable to this debt, contracted by her while sole. The plaintiff contended that the settlement as to him was fraudulent. Cpon the hearing his Honor declared, that upon the circumstances of the ease, the effects of ihe defendant, vested in her trustee, were to he considered as the property of a feme sole, and ordered the plaintiff's debt and costs to be paid out of the 500 East India Stock, in the hands of the trustee. Cur. Declare that under the circumstances of this ease, the effects of the defendant .lames Kennedy, vested in the defendant McCulloch, are to he considered as the property of a feme sole, and as such liable in equity to make the plaintiff satisfaction for so much of the debt contracted by her while feme sole, as he has not been able to recover by means of the outlawry of James Kennedy her husband. Account of what remains dm- to the plaintiff, and ta\ his costs of suit, direct payment of debl and costs by sale of the East India Stock comprised in the settlement standing in the names of the defendant Jane Kennedy ami defendant McCulloch, and liberty toapply. Reg. Lib. 1761, A., p. 517; '> I.. R. Eq. 562.

540

HULME

V.

TENANT.

hand and wife; for eight years' purchase: there was no fraud. A Mrs. Stonebill was brought against the trustee for a transfer. house, in her answer, insisted this was against her consent, bat there was evidence in the cause that they both had consented. The bill, so circumstanced, was dismissed with costs, by his Honor (Sir

Thomas
ried

Sewell),

who seemed shocked

at the proposition that

amar-

woman

could be bound by au act done in conjunction with her

husband

(z).

It is now laid down that a woman, havMr. Mansfield, in reply. ing separate property, cannot dispose of it but by the means pointed

out by the settlement, and with the consent of her trustees.

It

seemed
curities.

to

me

that a feme covert, having separate property,

was

to

and might borrow money and give sebeen decided not to be necessary; the use of trustees being only to guard it against the husband. Here, it is to such uses as she, by deed or will, should appoint. Mr. Attorney -General and Mr. Selwyn argue upon the ground that the bond was void; that is begging the question. If we are right, though void at law, it is not void here. The latter of these two bonds, that to secure 180Z., was given on the mere motion of the wife; no objection arises from the plaintiff's having sued at law: it was a legal security against the husband. As to an infant's bond: an infant is never considered here as an adult, but a feme covert is very often considered as a feme sole. In Norton v. Turvill, the assets were considered as being bound when she was dead; then her property must have been bound whilst she was living. That case is decisive of the present question. The dictum in Pea'Di-I: v. Monk is mentioned as falling from Lord Hardwicke, and
that intent (a), a feme sole,

The consent

of the trustees has

naturally, as being the general rule governing the property of women, and taking that particular case out of the rule. In Biscoe v,

Kennedy, the separate property could not be the subject in dispute, the debts of a feme sole falling on her husband. In

">
1
1

Machorro

v.

Stonehouse, the

woman

lived *separate

from

the husband, and probably some fraud struck the learned

judge.

Lord Chancellor Thurlow.

the form of the
(z)

My doubt

arises principally

upon
bill

relief,

rather than the principles upon which the

v.

Bed vide contra, Stanford

340.

Marshall, 2 Atk. 68;

Pybus

v.

Smith, 3 Bro.

(a)

Qy. extent.

IIULME
is

V.

TENANT.

* 541

brought;

i'tis

a bill brought by the obligee

for 180Z. to recover that
It is

upon

a joint

bond by

husband and wife

sum out

of the separate

property of the wife.

brought against the wife, the husband,

and the trustees, for attaining the most extensive and perfect relief which the situation of her separate property will enable her or her
trustees to afford.

The question

is,

what

sort of execution this

against that separate property?

It is created

Court will award by deed, and is real

it,

estate conveyed to trustees, as to a considerable part of to receive

in trust

and to convey the estates themselves according to the appointment of the wife, by her last will and testament in writing, or by deed or writing under her hand and seal, executed in the presence of two or more witnesses and, for want of such declaration or appointment, to tho uso and behoof of the wife, her heirs and assigns; as to other parts, in trust, to be sold, and out of the produce of the sale, 1000Z. to be retained by the and pay the rents
to the wife,
;

trustees, to
profits to

be laid out according to the directions of the wife, the be paid to her, and the principal to her or her order, by note or writing under her hand; and, for want of such appointment,

to her executors, administrators,

The

rule laid

down

in

Peacock

and assigns. v. Monk, 2 Ves. 190,

sole, is

that a

feme

covert acting with. respect to her separate property, is competent to

act in all respects as if she

was a feme

the proper rule, and

necessary to support the decisions on this subject.

The conse-

quence was that in Allen v. Papworth, 1 Ves. 163 (b), where a bill was brought by husband and wife for an account, the wife, together with her husband, submitting that the profits of her separate estates should be applied to pay the husband's debts, she was bound by that submission, and the profits of her separate ^estate were by decree directed to be so applied. [ * 541 J
In Grigby
v.

Cox, 1 Yes. 517, where the wife had conthe Court bound her, as a person equally compe-

tracted to sell her separate estate, being authorized by settlement

to dispose of
it,

performance of that contract: I take it. therefore, it is impossible to say but that a feme covert iscompt U nt to act as a feme sole, with respect to her separate property, where si
tent as
if sole,

to a specific

tied to her separate use.

far she
(b)

But the question here goes a little beyond may act upon her separate property:

that;
I

it is

not only how

have no doubt about

p. 91.

Sec a fuller and more correct statement of the case in Belt's Suppl.

;,

\-2

HULME
is,

V.

TENANT.

that; but the question

how far her general personal engagements

If she had by inshall be executed out of her separate property. strument contracted that this or that portion of her separate estate,

should be disposed of in this or that way, I think she and her trustees might have been decreed to make that disposition; but if
she enters into an engagement, which would
ble to the whole extent of the contract as to her person,

feme sole lia&c, in every respect, it is clear such general engagement, entered into by a feme It is not like the case of an incovert, will not bind her as such. fant, who is incapable of acting; but in respect to a feme covert, determined cases seem to go thus far, that the general engagement
a

make

of the wife shall operate upon her personal property, shall apply to the rent* and profits of her real estate, and that her trustee shall be
obliged to apply personal estate,
arise, to the satisfaction

and

rents

and

jirofits

when they

of such general engagement ; but this Court h is not used any direct process against the separate estate of the ivife and the manner of coining at the separate property of the wife, has been by decree to bind-the trustees, as to personal estate in their hands, or
rents

and

profits, eiccording to the

exigencies of justice, or of the en-

gagement of the wife, tobe carried into execution (c). I know of no Suppose the wife to have case which has gone further than that. r, by settlement, to dispose of her real estate to any uses she
shall think

without which the estate cannot pass.

*

542

must make the formal instrument, I know of no case where the general engagement of the wife has *been carfit,

yet the trustees

ried to the extent of decreeing that the trustees of her

real estate sball

make conveyance
of the wife.

of that real estate,

and by

sale,

mortgage, or otherwise, raise the money to satisfy that general en-

gagement on the part

real estate

It

may be

difficult to

give relief

here without doing something of that kind, because that part of the

which was to be sold has been sold, and the money has been applied, with the direction of the wife, by the hand of the e, who consequently is no longer liable as to that sum; so that
so far as the 1000Z.,
trustee alleging that the

hands.

seems out of the reach of this Court, the money is paid, or not remaining in his [Mr. Ambler. Only part paid over.] I belive there is no
it

instance of a personal decree against a feme covert, for

payment of
is lia-

any sum whatever.

ilso

Though her

separate personal property

v.

105, 112;

Atwood

Francis v. Wigzell, 1 Madd. 258; Aylett v. Chichester, :) Q. B. D. 722.

Ash ton,

My.

&

Cr.

10

HULMB
ble, yet
it

V.

TENANT.

* 543

the decree

is

to fetch forth her separate estate,

liable to her engagement.

No lease found
wo cannot come

in the

tee is

now

before the Court;

at

it.

and make hands of the trusAs a bond it is

void, otherwise an extent might have gone.

Lord Chancellor Thurlow. I have no doubt about this princia Court of equity says a feme covert may have a separate estate, the Court will bind her to tin- whole extent as to making that estate liable to her own engagements; as, for instance, for payment of debts, dec. But, although the remedy here is more extenple, that, if

do not find the Court has ever ordered power to be executed; it has industriously stopped short of so doing, and has only given a remedy by stopping the fund, where the power was executed; therefore, I cannot order the feme covert
sive than in a court of law, I

to execute her power, but I

am

exceedingly clear that the leasehold

to take

estate will be liable.

an account of the any report, the parties came to a compromise, upon the defendant Frances paying the principal sum borrowed, with interest, without any costs (e).
It stood referred to the

Master (d)

rents

and

profits of the leasehold estates; but, before

* " That at law," observes Lord Brougham, C, " a [ * 543 ] feme covert cannot in any way be sued, even for neces[A married woman could not bind herself by saries, is certain. any contract, and her formal undertaking was not voidable but void: Rogers v. Higgins, 48 111. 211; Weed Sewing Machine Co. v. Maxwell, 63 Mo. 486: Edwards v. Davis, 16 Johns. 281; Farrar Hynes v. v. Bessey, 24 Yt. 89: Norris v. Lantz, 18 Md. 260: Dickinson, 32 Ark. 776.] Bind herself, or ner husband, by specialty, she cannot; and, although living with him, and not allowed necessaries, or apart from him, whether on an insufficient allowance or an unpaid allowance, she may so far bind him that those who furnish her with articles of subsistence may sue him; yet, This is even in respect of these, she herself is free from all suit. her position of disability, or immunity at law; and this is now
clearly settled.

Her separate existence is not contemplated; it is merged by the coverture in that of her husband; and she is no more recognized than is the cestui que trust or the mortgagor, the
legal estate,
others.
{d

which

is

the only interest the law recognises, being in

Book
(<
I

made by Lord Thurlow. C, extracted from the Registrar's note to Johnson v. Gallagher. :; De G-. P. & .'<>. i>. 502. (< ). Bro. C. C. 1-::. See Stanford v. Marshall. 2 Atk. 68; Sockett c. Wray,
See order
in
!

11

* 544

IIULME

V.

TENANT.

[Equity concedes "But. in equity, the case is wholly different. to the wife a considerable power to contract, even in the absence of any agreement: Williams v. Maull, 20 Ala. 721; Butler v. Bicketts, 11* Iowa, 107; Besor v. Besor, 9 Ind. 347; Pinnly v. Fellows, 15
525; Gosden y. Tucker, 6 Munf. 1; Wood v. Warden, 20 Ohio, 518; Whitten v. Whitten, 3 Cush. 191.] Her separate existence, both as regards her liabilities and her rights, is here abundantly acknowledged; not, indeed, that her person can be made liable, but her propi 'it may, and it may be reached through a suit instituted against herself and trustees. It may be added that the current of decision has generally run in favour of such recognition. The principle has been supposed to be carried further in Hulme v. Tenant, than it had ever been before, because there a bond, in which the husband and wife joined, and which, indeed, so far as the obligation of the wife was concerned, was absolutely void at law, was allowed to charge the wife's estate vested in trustees to her separate use, though such estate could only be reached by implication; and though, till then, the better opinion seemed to be, that the wife could only bind her sepaLord Eldon repeatedly exrate estate by a direct charge upon it. pressed his doubts as to this case; but it has been constantly acted upon bv other judges, and never, in decision, departed from by 220, 222." himself: Murray v. Barlee, 4 My. Equity has long recognised the separate existence of a married woman as regards property given or settled or belonging to her, to her separate use, and, in order to prevent any undue exercise of marital influence detrimental to its enjoyment, has also in comparatively recent times allowed the introduction of a restraint upon her anticipation or alienation of property so settled the separate use and the restraint upon anticipation or alienation (as will be hereafter more fully shown) being both co-extensive with her cover-

Vt

&K

ture.

legislature in various statutes,

by the the Divorce and Matrimonial Causes Act (20 & 21 Vict, c. 85), amended by 21 & 22 Vict. [* 544 ] c. 108: the Married * Women's Property Act, 1870 (33 & 34 Vict. c. 93), amended by the Married Women's Property Amendment Act, 1874 (37 & 38 Vict. c. 50); the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), (commencing the 1-! day of January, 1883, and which repeals, except as to acts done lits acquired, both the Married Women's Property Act, 1870, and the Amendment Act, 1874); and the Married Women's Property Act, 1884 (47 &48 Vict. c. 14), s. 2. It is proposed in this note to consider: how 1. Separate use and by what words created, independently of any statute. 2. Statutory extension of the doctrine of separate use. 3. Wife's power of disposition over her separate property. 4. Liability of corpus of married woman's property when she has a life interest to her separate use with a power of appointment. 5. Liability of wife's
of separate use has been extended
viz.,

The equitable doctrine

12

BULME

V.

TENANT.

545

6. Of the reseparate estate to her debts and general contracts. by tho husband of the income or corpus of the separate pro7. As to the relief afforded against and to a perty of his wife. married woman having separate estate in respect of her contracts, 9. Aid afforded 8. Savings and arrears of separate estate. &c. by equity to protect and recover separate property. 10. As to re11. Duration and extent of separate use, straint upon alienation. and restraint upon alienation, and when the latter can bo dispensed with. 12. As to pin money. 13. As to paraphernalia.

ceipt

how and by what words created, independently 1. Separate use of any statute.] Any person may, either before, after, or during* her coverture, give or settle property to the separate use of a feme. And her husband may contract (as is frequently the case in mar-

riage settlements), that either his own or his wife's property, or part of it, shall be held, usually by trustees, for her separate use. A parol agreement, however, before marriage, that particular chattels of the wife shall be possessed by her to her separate use, is not binding upon the husband, unless the agreement be acted upon by the chattels being placed under the dominion of trustees, and treated as separate property, for in such case the agreement may be made effectual: Simmons v. Simmons, 6 Hare, 352. Lord Thurlow in the principal case, following the opinion then prevalent, thought that trustees were essential to the existence of It has, however, been long since established, that the separate use. if real or personal property be given to, or settled upon, a married woman for her separate use, without the interposition of trustees, still in equity the intention of the testator or settlor will be affectuated, and the wife's interest protected by the conversion * of the husband into a trustee for her: Bennet v. Davis, 2 [ * 545] P. Wras. 316; Parker v. Brooke, 9 Ves. 583; Rich v. Cockell, 9 Ves. 369; Rollfe v. Bndder, Bunb. 187; Prichard v. Ames. 1 T. &R. 222; New-lands v. Paynter, 10 Sim. 377, 4 My. & Cr. 408; Archer v. Rorke, 7 Ir. Eq. Rep. 478; Gardner v. Gardner, 1 Giff. [It is now settled that where there is a gift to a married wo126. man, and no trustee is named the husband will be considered as a trustee: Fears \). Brooks, 12 Ga. 195; \\ hitten v. Jenkins, 34 Ga. 297; Long v. White, 5 J. J. Marsh, 226; Freeman v. Freeman, 9 Mo. 772, Trenton Banking Co. v. Woodruff, 1 Green, 117; Varner's Appeal, 30 P. F. Smith, 140; Speele v. Speele, 1 Ired. Eq. 452. This is especially so if the gift be directly from the husband to the wife: See Penna. Salt Mfg. Co. v. Nell, 4 P. F. Smith, 17; Shirely v. Shirley, 9 Paige, 364.] A husband may also give property to trustees, or make himself a But in order to constitute trustee for the separate use of his wife. a gift between husband and wife, there must be a clear and irrevocable gift to a trustee for the wife, or some clear and distinct acl by the husband, by which he has divested himself of his property, or

13

*546
engaged
529-,

HULME

V.

TENANT.

to hold it as a trustee for his wife: Mews v. Mews, 15 Beav. Parfcerv. Lechmere, 12 Ch. D. 286; Lucasv. Lucas, 1 Atk. 270; Lady Cotuper's Case, 3 Atk. 393, cited; Graham v. Lord Londonderry, 3 Atk. 393; Walter v. Ifod^e, 2 Swanst. 92. [At common law, the existence of a married woman was supposed to be merged into that of the husband, and a conveyance from the latter to the former was of no effect, but in equity gifts from husband to wife will be upheld, and if the legal title does not pass from the husband he will be considered to be a trustee for his wife: Williams' Appeal, 11 Wright (Pa.), 307; Lowe v. McLeod, 76 Ala. 418.] And it has been recently held that in the absence of proof of an unequivocal, complete, and final intention on the part of a husband to constitute himself a trustee for his wife, the Court will not after his death, upon her uncorroborated statement that he expressly authorised her to carry on a business, on her own account, of a farm which she bad rented before marriage, and to treat the proceeds as her separate property, admit her claim as against his estate to the proceeds of the farm which were invested by him during his lifetime: In re Whittaker, Whittaker\.Whittaker,21 Ch. D. 657; see also Finch v. Finch, 23 Ch. D. 271. A mere imperfect gift as distinguished from and not amounting to a declaration of trust, not being sufficient for the purpose: In re Breton's Estate, Breton v. Woollven, 17 Ch. D. 416; Milroy v. Lord, 4 De G. F. & J. 264; and see note to Ellison v. Ellison, ante p. 315. And now under the Conveyancing and Law of Property Act, 1881 (44 & 45 Yict. c. 41), freehold land or a thing in action, may be conveyed by a husband to his wife, and by a wife to her husband, (Sect. 50.) alone or jointly with another person. But in order that the fee simple of an intended wife may (in cases not coming within the recent statute law), be affected with a trust to her separate use by an agreement made between the intended husband and wife before marriage, the agreement must be in writing and signed by the wife as well as the husband, for if it is signed by the husband alone, it is, owing to the Statute of Frauds, sect. 7, invalid as a declaration of trust for the separate use of the fee simple, a husband having in his wife's land only an estate for the joint lives of himself and his wife with a possible estate by the curtesy; and upon the death of the wife without issue during her * 546 ''husband's lifetime, her heir-atdaw and not her devisee, will be entitled to the land of which she is seised in fee
| )

simple:

Dye

v.

Dye, 13 Q. B. D. 147.

mere renunciation, moreover, by an intended husband of his

marital rights in his wife's real property is not sufficient to clothe her with a testamentary power, or to constitute a valid declaration But see Rippon v. Dawding, Amb. 565, lb. of trust of the fee. which seems to have been erroneously decided, as the point arising from the Statute of Frauds was not raised in the case. See also the observations thereon in Field v. Moore, 7 De G. M. & G. 718, 719.

14

HULME

V.

TENANT.

* 547

wife, moreover, will have the benefit of any outlay by If, for real estate settled to her separate use. Le builds houses upon it with his own money, the houses will bocome the wife's, and her interest in them will be to

her husinstance,

band upon

so built

arateuse: Barrack v. M'CullQch,^ BL & J. 34 Beav. 623. No particular form of words is necessary in order to vest property
in a married woman to her separate use; but the intention to give her such an interest in opposition to the legal rights of her husband, must be clear and unequivocal: [Any form of expression which is indicative of an intention to confer the beneficial enjoyment upon the wife, and to exclude the rights of the husband, will be enough: Williams v. Avery, 38 Ala. 115; Stuart v. Kissam, 2 Barb. 494; Lewis y. Adams, 6 Leigh, 320; Boal v. Morgner, 40 Miss. 48; Somers v. Craig, 9 Humph. 467; Ballard v. Taylor, 4 Dess. 550; Heathman v. Hall, 3 Ired. Eq. 414.] Stanton v. Hall, 2 Iluss. & My. 180; Fitzgibbon v. It has been held tnat the marital rights of the Pike, 6 L. R. Ir. 487. husband will be defeated if there is a gift or settlement of property " (Massy v. Rowen, to his wife or her trustees for her " separate use use: [Archer v. separate "sole and 4 L. R. Ho. Lo. 294, 299, 300); Rorke, 7 Ired. Eq. 478; Petty v. Booth, 19 Ala. 633.] Parker v. Brooke, 9 Ves. 583; Archer v. Rorke, 7 1. Eq. Rep. 478; and see Hidi<" for her own use and at her own disposal:" Pritchard v. Tenant; or, v. Ames, 1 T. & R. 222; for her sole use and disposal {Bland v. Dawes, 17 Ch. D. 794); " for her own use, independent of her husband: " Wagstaffe v. Smith, 9 Ves. 520; " for her own use and benefit, independent of any other person:" Margettsy. Barringer, 7 Sim. 482; Glover v. Hall, 16 Sim. 568; " for her livelihood:" DarUy And see Cape v. Cape, 2 Y. & C. Ex. Ca. 543 v. Barley, 3 Atk. 399. but see Lee v. Prieaux, 3 Bro. C. C. 383; Wardlex. Claxton, 9 Sim. 324; or, "that she should receive and enjoy the issue and profits:" So where, as inHulmev. Tenant, there Tyrell v. Hope, 2 Atk. 558. is a direction that " the interests and profits be paid to her, and the principal to her, or to her order by note in writing under her hand;" or, " her receipt to be a sufficient discharge:" (Lee v. Prieaux, 3 Bro. C. C. 381; Stanton v. Hall, 2 Russ. & My. 180; Lire Molyneux's Estate, 6 I. R. Eq. 411;) or trustees are directed to apply the income of a fund in their discretion, and without being *an- [ * 547 ] swerable to any one " for the maintenance and support of a married woman:" Austin v. Austin, 4 Ch. D. 233; or, "to be delivered to her on demand:" Dixon v. Olmius, 2 Cox. 414; or the husband "is to have no control:" Edivards v. Jones. 14 W. R. (M. R.)
:

her sep 119, 120; Grant x. Grant,

815.

In the case, however, of Gilbert v. Lewis, 1 De G. Jo. & Sm. 38, it was held bv Lord Westbury, C, affirming on another point the decision of Sir W. P. Wood, V.-C. (2 J. & H. 452), that a devise to a widow "for her sole use and benefit" without the intervention of
trustees did not give to her a separate estate.

15

* 548

HULME

V.

TENANT.

" sole It appears to have been formerly supposed that the words use " had acquired a technical signification similar to the words "separate use," or "sole and separate use," and were of themselves sufficient to exclude the manifest right to confer upon a woman an estate to her separate use (Cox v. Lyne, You. Exch. Ca. 562; Lindconsidered to be sell v. Thacker, 12 Sim. 178); but it may now be established by the case of Gilbert v. Lewis, 1 De G. Jo. & Sm. 38, followed by Lewis v. Matthews, 2 L. R. Eq. 177, and by the decision of the House of Lords in Massy v. Rowen, 4 L. R. Ho. Lo. 288, affirming the decision of the Court of Appeal in Ireland, reported " sole " in a 1 I. R. Eq. 110, nom. Massy v. Hayes, that the word
will

has not a fixed technical meaning like the word " separate," ami will not of itself exclude the marital right. See, also, Green v. [The authorites in different states, and Marsden, 1 Drew. 646. conflicting with each other as to what are state, same even in the words are sufficient, and what are not sufficient, to create a separate use for a married woman. In one case, it was said that the words or expressions which would create a trust for the sole and separate use of a married avoid an, might be arranged in three classes: (1) Where the technical words " sole and separate use" or equivalent words are used; expressly ex(2) Where the marital rights of the husband are cluded; (3) Where the wife is empowered to perform acts concerning the estate given to her inconsistent with the disabilities of a coverature: Fix v. Bradley, 6 Rich. Eq. 48.] But, as is well observed in a recent decision in Ireland, the primary and grammatical meaning of the word " sole " does signify exclusion: and the real question to be solved is, exclusion of whom ? When the woman is unmarried, and the instrument does not in terms, or from the circumstances, point this expression to a future coverture, the exclusion is now settled to be of others in general, and, therefore, not to apply with the required particularity to an But if the woman is married, the exclusion after-taken husband. most natural to occur to the mind of the donor, aware of her coverture, is that of the husband; and he can be excluded only by holdPer Barloiv, ing the property to be to the separate use of the wife. V.-C, in Hariford v. Power, 2 I. R. Eq. 212. Thus a settlement for the " sole use, benefit, and disposition" of a lady about to marry (Ex parte Ray, 1 Madd. 199, 207; and see Arthur v. Arthur, 11 Ir. Eq. Rep. 511) bequest to a lady about to marry, " for her own sole use and benefit absolutely " (In re Tarseifs Trust, 1 L. R. Eq. 561); and abequest.in a will by the words "solely and entirely * married [ * 548 ] for her own use and benefit for life," to a woman (Inglefield v. Coghlan, 2 Coll. Ch. C. 247; and see Green v. Britten, 1 De G. Jo. & S. 649), gave to them separate es.
;

fcates.

And a bequest to an unmarried woman "for her own sole use and benefit " absolutely, has been held to give her a separate estate,
16

HULMB

V.

TENANT.

* 549

because the testator, in another clause in his will, showed he con templated there a future marriage of the lady, though in the bequest itself there was no reference of any kind to that event. See, also. Ex parte Killick, 3 M. D. & De G. 480. And the interposition of trustees may give to such words as "sole benefit" the same technical meaning as the word "separate:" Adamson v. Armitage, 1 J Ves. 410; Gilbert v. Lewis, 1 De G. Jo. &
C

S. 38.

operation of the separate use death of the testator, may, by the context, be extended so as to include those married subsequently. Thus, where a testatrix directed " that the legacies and shares of such of my nieces as are married shall be to their separate use, free from the debts and control of any husband; arid that my trustees sh all hare power to give effect to this my 'intent," it was held by Sir L. Shadwell, V.-C, that the testatrix had used the words in a future sense, and that she intended those of her nieces who married after her death, as well as those who were married at that time, should take to their separate use: In re Bayliss's Trusts, 17 Sim. 178. "Where a testator, after giving his residuary property to two nieces, added, "I confine my said legacies hereinbefore mentioned, to be given to my nieces and their children, without comprehending their husbands, unless, they, my said nieces or either of them, should die without issue; " Sir John Romilly, M. R., was of opinion that the only way to give effect to these words was to give the residue between the nieces equally for their separate use for life, and after their deaths to their children, and if they had no children, then it would belong to the nieces absolutely: Dawson v. Bonnie, 10 Beav. 29. [If property is settled to the separate use of a married woman, such separate use will attach so often as she may be married, and is not confined to a marriage to any one man: Clarke v. "Windham, 12 Ala. 800; Smith v. Starr. 3 Wharton, Pa. St.; Steacy v. Rice, 27 Pa. 75.] Where a testatrix devised a freehold estate to trustees for the use and benefit of her daughter, who was to receive the rents and profits from the tenants herself, while she lived, whether married or single, and she also directed that no sale or mortgage should be made of the estate or the rents arising from it during the life of her daughter, it was held by the Lords Justices of the Court of Appeal, reversing the decision of Sir John Romilly, M. R., that the devise amounted to a gift to the separate use of the daughter without power of anticipation inasmuch as the expressions therein *used were inconsistent with any interference on [*511 the part of the husband: Goulder v. Cam))), 1 De G. F. &
clause to
at the
|
|

And words apparently confining the members of a class married

Jo. 140.

An indefinite bequest of the interest of a fund to a woman to her separate use, will give to her the capital also to her separate use. * 2 WHITE ON EQUITY. 17

* 550

IIULME

V.

TENANT.

Thus, where a testator gave the interest of a capital sum of 1000/. to his wife for her sole use and benefit, and free from the debts and control of any husband she might marry, and directed that her receipt alone should be a sufficient discharge to his executor, it was held by Lord Cramvortli, V.-C, that the gift of the interest of 1000/. passed the capital to the widow, and that she was entitled to it to her separate use: Humphrey v. Humphrey, 1 Sim. N. S. 536. So a bequest of a sum of money to a married woman for her own use, nevertheless during her life, the executors were to invest the sum and to pay the dividends during her life to her separate use, independent of any husband, was held to give her an absolute and Gurney v. Goggs, 25 Beav. 334. not merely a life interest: In a recent case a testator gave all his real and personal estate to trustees in trust for his wife for life, and after her decease for his daughter absolutely; and he directed that the principal moneys,

and proceeds, which his wife and daughter, or either of them, should be entitled to under his will, should be paid into their own proper hands as the same became due, and not by way of anticipation; and should be for the separate use and benefit of his wife and daughter; and for which moneys, rents, issues, profits, interest, dividends, or proceeds, the receipt alone of his wife and daughter, whether covert or sole, should be an effectual discharge to his trustees. It was held by Sir M. T. Kindersley, V.-C, that the corpus of the real estate was not given to the separate use of the testator's daughter: Troutbeck v. Boughey, 2 L. Eq., 534. Where the residue under a will was given to the husband and another as trustees, as to a moiety for the wife for life, there is not sufficient ground for the inference that the testator must have intended that she should take the life interest in the trust fund for her separate use {Ex parte Beilby, 1 Gk & J. 167, 176, but the decision might have been the other way had the husband alone been appointed sole trustee for the wife. lb. See also Kensington v. Dolland, 2 My. & K. 184. Although generally a married woman's separate estate is given to her for life only, she may have an absolute interest in personal property, or any ordinary estate in real estate, such as an estate in fee simple (Taylor v. Meads, 4 De G. J. & S. 597, 607) or fee tail (Cooper v. Macdonald, 7 Ch. D. 288), and where prop550 ] erty is settled *to a marrried woman's separate use for life with power to dispose of it by deed or will, and, in default to her, her executors and administrators, it is in effect her separate property absolutely. The London Chartered Bank of Australia v. Lempriere, 4 L. P. C. C. 572, and cases there cited. As to the exclusion of the marital right by a French settlement, see Este v. S'my the, 18 Beav. 112. But it has been held that no separate use has been created where there is a mere direction "to pay to a married woman and her asrents, issues, profits, interest, dividends,

18

HULME
1

V.

T K.N A XT.

* 551

Lamb v. Mi7nes, 5 Ves. signs:" Dakins v. Berisfnrd, Ch. Ca. 19 null. Madd. 517; or there ia a gift "to her use:" Jacobs v. 376, n.; "to her own use and benefit:" Juhiics v. Lockhart, cited 3 Bro. C. 0. 383, n. Wills v. Sayers, tMadd. I')'.): Roberts v. Spieer, 5 Madd. 491; Kensington v. Dollond, 2 My. & K. 184; Beetles v. Spencer, 2 V. & C. C. 0. 65] to her "absolute use;" Ex parte AbDeac. 338; Daren v. Croft,9 Ir. Ch. Rep. 19; unless the conbott, text requires the words "absolute use" to be construed as "separate use:*' Shewell v. Dwarris, Johns. 172; or when a payment is directed to be made "into her own proper hands, to and for her own use and benefit:" Ztyfer v. aA:e, 4 Sim. 144; 5. C. 2 Russ. My. L83; into her proper hands "to her own proper use and benefit:" Black low v. Lairs, 2 Hare, 49; but see Hartley v. Hurle, 5 Ves. 545; or when property is "to be under her sole control:" Massey v. /'arl.-cr. 2 My. & K. 174; or where there is a devise without the intervention of trustees, "for her sole use and benefit:" Gilbert \. Leiris, 1 Do (1. Jo. &Sm. 38; Lewis v. Matthews, 2 L. R. Eq. 177; Massy v. Rowen, 4 L. R. Ho. Lo. 288; C, 1 I. R. Eq. 110, nom. il^N.vy v. //at/es, or a direction to transfer "to own use and benefit;" Darcy v. Croft, 9 Ir. Ch. Rep. 19, 31. So, a bequest to a woman and her assigns for her life, "for her and her own absolute use and benefit," does not confer upon her a separate estate: Ry croft v. Christie, 3 Beav. 238. [For a list of expressions which are not sufficient evidence of an intention to create a separate use, see Perry on Trusts, Sec. 649.J So, a bequest by will to the testator's wife for life of the income of property, "to be expended by her as she might think fit and proper and agreeable to her free will and pleasure," has been held not to give her a separate use in the same: Re Graham's Trusts, 20 W. R. (V.-C. M.) 289. And where a testator gave 1000?. to his sister for her, or for her children's sole use and benefit for ever, and directed his executors to pay the same to her as soon as possible, it was held that the sister did not take the 1000/. to her separate use. Chipchase v. Simpson, 16 Sm. 485. But where under a trust deed for providing pensions (amongst other objects) for the widows of clerks in the East India Company's *service, there was a provision that the pension [ * 55 should be paid "to provide a comfortable maintenance" for the widows, and that it "should not be disposed of or encumbered either directly or indirectly," it was held by Malins, V.-C, that a widow of a clerk was as against a second husband entitled to her pension to her separate use: In re Peacock's Trusts, 10 Ch. D. 490.
!
:

Am

&

As to whether presents made by a husband to his wife before and after marriage will be her separate property, see Grant v. Grant. 34 Beav. 623, W. R. (M. R.) 1057.

Where a husband in taking proceedings with reference to property of his wife's makes her a defendant, he thereby admits that
19

* 552

HULME

V.

TENANT.

is her separate estate: Earl v. Ferris, 19 Beav. 67; Tn Martin: Butt^rfield v. Matt, W. R, July 12, 1884, p. 164. Where however a decree erroneously states that a married woman is tMititled to her separate use, the Court not having decided what her interest was, it is not binding as a declaration of right, and must be disregarded: Moore v. Walter, 11 W. K. (V.-C. K.) 713. It may be here mentioned that where a precatory trust has been created by -will in favour of "children" simpliciter, the trustee may, in executing the trust, limit the shares of the daughters to their

the property
re

separate use: Willis v. Kymer, 7 Ch. D. 181. We have before seen that a married woman under her equity to a settlement, may have her property, which her husband was entitled to receive, jure mariti or which he could only recover in a Court of equity, settled to her separate use and to the use of her children. See note to Murray v. Elibank, ante, p. 507. Next the savings and arrears of separate estate, will be considerSee post, p. 598. ed, separate property. Where also a husband and wife agree to live separate and not to interfere with any property which each may subsequently acquire, the subsequently acquired property of the wife will be considered as her separate estate: Haddon v. Fladgate, 1 Sw. & Tr. 48. [If a separation deed has been actually executed, the court will enforce any of its stipulations which are in accordance with law. In Pennsylvania, Indiana, Ohio, Vermont and Massachusetts, articles for immediate separation are valid and the equity will enforce specific performance of separation articles Dillender's Appeal, 11 Casey, 357; Thomas v. Brown, 10 Ohio, 250; Fox v. Davis, 113 Mass. 255; Dutton v. Dutton, 30 Ind. 455; Barron v. Barron, 24 Vt. 375. In McCrocklin v. other states the decisions have been the other way
: :

Simpson v. Simpson, 4 Dana. 140 McCrocklin, 2 B. Mon. 370 Rogers v. Rogers, 4 Paige, 518; Collins v, Collins, Phillips Eq. 153; Champlin v. Champlin, 1 Hoff. Ch. 55.] Moreover, if a husband either expressly or impliedly agrees that his wife shall carry on a business for her own benefit separately from and independently of him, thus making the carrying on separately and distinctly a separate use for her, then the trade becomes her separate property, and everything that is incident to and connected with the trade becomes part of that separate trade, and the husband is, if and so far as it is necessary, a trustee of everything which was devoted to that trade of which he allowed the wife to be (Ash worth v. Outram, 5 Ch. D. 923 In re the separate owner. Beale, Ex parte Corbridge, 4 Ch. D. 246; Pearse v. Pearse, See also Slanning v. Style, 3 P. [ *552] * W. N., 1877, p. 120.
;

Wms.

334.

immaterial whether Ihe business were one which the wife had before marriage or one which she had established after the marriage with the consent of her husband (Ashicorth v. Outram, 5 Ch. D. 923, 941 ), In re Dearmer, James v. Dearmer, W. N. 1885,
it is

And

20

HULME

V.

TENANT.

* 553

Dec. 12, p. 212, or even that the business was one carried on formerly by the husband before he became incapacitated, as for instance by habitual drunkenness and delirium tremens from carrying it on Lovell v. Newton, 4 C. P D. 7. If the permission by the husband to his wife to carry on business be given before marriage, it will not only be obligatory upon the husband, but also upon his creditors; if it be given after marriage, it will be binding as between him and her but ool as against See Ashiuorth v. Outram, 5 Ch. D. 932, 933, per his creditors. [Contract between husband and wife will sometimes Matins, V.-C. be enforced in equity: Tennison v. Tennison, 4G Mo. 77; Fisher y. Filbert, G Barr, 61; Bradish v. Gibbs, 3 Johns. 523; Moore v. Free:

man, Bunb. R. 205.]

It seems, however, that since 1st January, 1883, a married woman may, out of her own property, set up or continue a business in which she was engaged before marriage, and that neither the stockin-trade or profits and savings thereof will be liable to the debts or control of her husband, and that she may contract thereof as a See Married Women's Property Act, 1882, sec. 1, subs. feme sole. "And every married woman carrying on trade separately 1, 2, 3, 4. from her husband, shall in respect of her separate property, be (Sect. subject to the bankruptcy laws as if she were a feme sole."
1,

subs. 5.)
If

however the wife were now to be

set

up

in business

by the hus-

band her

stock-in-trade to the amount which he advanced her for the purpose of her business might be liable to his creditors.

first

The Statutory Extension'of the Doctrine of Separate Use.] statute to be noticed on this subject is the Divorce and Matrimonial Causes Act (20 & 21 Vict. c. 85), whereby it is enacted that "A wife deserted by her husband may at any time after such desertion, if resident within the metropolitan district, apply to a police magistrate, or, if resident in the country, to justices in petty
2.

sessions, or in either caso to the court (for divorce

and matrimonial

causes) for an order to protect any money or property she may acquire by her own lawful industry, and property, which she may become possessed of, after such desertion, against her husband or and such magishis creditors, or any person claiming under him trate or justices, or court, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property * acquired since the commencement of such de- [ * 553 J
;

from her husband and all creditors and persons claiming under him, and such earnings and property shall belong Provided always, that every to the wife as if she were a feme sole. such order, if made by a police magistrate or justices at petty sessions, shall within ten days after the making thereof, be entered
sertion,

21

* 554

HULME

V.

TENANT.

with the registrar of the County Court within whose jurisdiction the and that it shall be lawful for the husband, and wife is resident any creditor or other person claiming under him, to apply to the Court, or to the magistrate or justices by whom such order was made, for the discharge thereof: provided also, that if the husband or any creditor of, or person claiming under the husband shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable, at the suit of the wife (which she is hereby empowered to bring), to restore the specific property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid: if any such order of protection be made, the wife shall during the continuance thereof be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation." (Sect. 21.) An order of protection obtained by a married woman who has been deserted by her husband does not protect property acquired by immoral practices, Mason v. as by her living in adultery, and keeping a brothel Mitchell, 3 H. & C. 528. It has been held that a married woman who has been deserted by her husband, and has obtained an order for protection, is entitled to Ramsden v. Brearley, 10 L. sue in tort, as for instance for a libel: R. (Q. B.) 147. Moreover, "In every case of a judicial separation the wife shall from the date of the sentence, and whilst the separation shall continue, be considered as a feme sole with respect to property of every description which she may acquire, or which may come to or devolve upon her and such property may be disposed of by her in all respects as a feme sole, and on her decease, the same shall in case she shall die intestate, go as the same would have gone if her husband had been then dead; provided, that if any such wife should again cohabit with her husband, all such property as she may be entitled to when such cohabitation shall take place, shall be held to her separate use, subject however to any agreement in writing made between herself and her husband while separate."
;
:

(Sect. 25.)

54

"In every case of a judicial separation, the wife shall whilst so separated, be considered as a feme *sole for the

purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect of any engagement or contract she may have entered into, or for any wrongful act or omission by her or for any costs she may incur as plaintiff or defendant; provided, that where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid bv the husband, he shall be liable for necessaries supplied for her
use."
(Sect. 26.)

22

IIIL.MK

y.

TENANT.

555

This Act was amended by 21 & 22 Vict. c. 108, which gives jurisdiction to the judge ordinary to grant protecting orders (sect 6), and extends the provisions of both Acts to property of which the wife obtaining such order has or shall become entitled as executrix, ad The protecting order, which (Sect. 7.) niiuistratrix or trustee.
state the time at which the desertion commenced (sect. 9), be deemed valid until reversed (sect. 8), and persons or corporations making payments under orders afterwards reversed are to be (Sect. 10.) protected and indemnified. Where a wife has obtained a protecting order, which, it seems, is drawn up in general terms (Mullineux v. Mullineux, 6 \V. R. (J. O. ) 350, she may obtain payment to herself of money in Court In re Kingsley's Trust, 26 Beav. 84; In re liainsdon's Trusts, 4 Drew. 44(3), or in the hands of trustees (Cooke v. Fuller, 26 Beav. 99), although it is given to her separato use, without power of antici"And where a married woman subsequently to obpation, (lb. ) taining a decree for judicial separation from her husband, becomes absolutely entitled to stock belonging to her under 20 & 21 Vict. c. 85 s. 25, to her separate use as if she were a feme sole, such stock will not be included in a covenant in her marriage settlement to settle all property to which she or her husband in her right might Dawes v. Creyke, 30 Ch. D. 500." acquire during the coverture: And when she is executrix and residuary legatee, or even, it seems, when executrix alone, she may, after obtaining a protecting order, transfer stock standing in the name of her testator in the books of the Bank of England, and receive dividends as if she was a feme Bathe v. The Bank of England, 4 K. & J. 561. sole: The protecting order will have a retrospective effect extending back to the commencement of the desertion: In the Goods of Ann Elliott, 2 L. R. P. & D. 274. On the discharge of the protecting order, the property of the married woman becomes subject to the rights of her husband (per 'Turner, L. J., in Budge v. Weedon, 4 De Gr. & Jo. 223). As to what constitutes desertion on the part of the husband, see Ex parte Aldridge, 1 Sw. & Tr. 88. It seenis to be doubtful whether protecting orders are necessary since the Married Women's Property Act, 1882, came into operation, as that Act secures to the wife deserted since the commencement of the Act all the wages and property which would be secured to her by a protecting order. Next under the Married Women's Property Act, 1870, (33 & * 34 Vict. c. 93), commencing the 9th of August, [ * 555 1870, and repealed on the 1st of January, 1883, the wages and earnings of any married woman acquired or gained by her after the passing of this Act (9th August, 1870), in any employment, occupation, or trade in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary,

must

is to

23

* 556

HTLME

V.

TENANT.

and all investments of such wages, earnmoney, or property, shall be deemed and taken to be propertyheld and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money, and property (sect. 1). See Ashworth v. Outram, 5 Ch. D. 923. Where any woman married after the passing of this Act, shall during her marriage become entitled to any personal property as next of kin, or one of the next of kin of an intestate, or to any sum of money not exceeding 2001. under any deed or will, such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to the woman for her separate use, and her (Sect. 7.) receipts alone shall be a good discharge for the same. Where a sum of money not exceeding 200/. had been left to an unmarried woman by the will of a person who died before the passing of the Married Women's Property Act, 1870, such sum would lu'vm-theless belong to her to her separate use under that Act, if it became payable to her during a subsequent marriage: Howard v. Bank of England, 19 L. R. Eq. 295. The limit of 200/. fixed by section 7 applied only to money coming to the married woman by " deed or will " and not to personal estate to which she might have become entitled as next of kin of an intestate; consequently such personal estate, whatever might be its amount or value, belooged, where unaffected by any settlement, to her for her separate use, and might be transferred or paid to her upon her separate receipt, without the necessity of any examination. See In re Voss, 13 Ch. D. 505, where Jessel, M. E., said "it was
artistic, or scientific skill,

ings,

ground for the distinction." be here mentioned that the right of a married woman to any separate property which may have been acquired by her, under the Married Women's Property Act, 1870, s; 7, may be divested by an order on the joint petition of her husband and herself for payment of the fund to the husband in right of his wife, and the fund will pass to the husband and his assignees: Lane v. Oakes, 22 A^ R. (Ex.) 709. * 556 ] Where any freehold, copyhold, * or customaryhpld prop[ erty shall descend upon any woman married after the passing of this Act, as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her separate use, and her receipts alone shall be a good dis(Sect. 8.) Semble this section under the charge for the same. words "rents and profits " applies to the corpus: In re Voss, 13
difficult to find a

It

may

Ch. D. 505. Under Sections 2, 3, 4, 5, 6 and 10 of the Married Women's Property Act, 1870 (which were in force from the 9th August, 1870, to the 31st Dec. 1882, both days inclusive), certain investments in Government annuities, savings banks, public stocks and funds, in-

24

HDLME

V.

TENANT.

* 557

corporated or joint stock companies, industrial, provident, friendly, benefit building or loan societies, might have been made, arid policies effected for tho separate use of a married woman, subject to certain provisions against tho use of the moneys of the husband without his consent (ss. 2, 3, 4, 5,) or in fraud of the creditors of her husband (s. 6). And now by the Married Women's Property Act, 1882, which repealed the Married Women's Property Act of 1870, the investments made under such sections which were standing in the solo name of a married woman, or in the joint names of a married woman and other persons can, under the Act of 1882 (see ss. 6, 7, 8, 9, jiost, pp. 558 560), be received or transferred by her, and the dividends, interest and profits received by her without the concurrence of her husband, which under the Act of 1870 could not be done: Howard v. Bank of England, 19 L. R. Eq. 295. As to policies effected under section 10 of the Married Women's Property Act, 1870, see In re Mellor's Policy Trusts, 6 Ch. D. 127; 7 Ch. D. 200; In re Adam's Pollen Trusts, 23 Ch. D. 525, 530. As to the mode in which a petition under that section should be entitled since the coming into operation of the Married Women's Property Act, 1882. See In re Soutar's Policy Trust, 26 Ch. D. 236. By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), which came into force on the 1st of January, 1883 (and which does not extend to Scotland), it is enacted as follows: "A married woman shall in accordance with the provisions of this Act, be capable of acquiring, holding and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trusThis sub-section gives a married woman tee." (Sect. 1, subs. 1.) power to dispose by will only of property of which she is seised or possessed while she is under coverture. Consequently, notwithstanding the 24th section of the Wills Act (1 Vict. C. 26), her will made during coverture is not, unless it is re-executed after she has become discovert, effectual to dispose of property which she acquires after the coverture has come to an end: In re Price, Stafford v. Stafford, 28 Ch. D. 709. Every woman who marries after the commencement of this Act

(on or after 1st Jan. 1883), shall be entitled to have and to * hold her separate property and to dispose of in mannor aforesaid all real and personal property which shall

* 557
]

belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, including any wages, earnings, money, and the property gained or acquired by her in any employment, trade, or occupation, in which she is engaged, or which she carries on separately from her husband, or by the exercise of any
literary, artistic, or scientific skill.

(Sect. 2.)

has been held that as the effeel of sects. 1 and 2 of the Act of 1882 is to put a woman who has married since the commencement
It

25

* 55S

HULME

V.

TENANT.

of this Act in the position of a feme sole, with respect to property which belongs to her at the time of her marriage, notwithstanding the provision in sect. 50 of the Settled Estates Act, 1877 (40 & 41 .Vict. c. IS), that when a married woman consents to an application to the Court under the Act, she is to be examined apart from her

such an examination is not now neceshas married since the commencement of the Act (Riddell v. Berrington, 26 Ch. D. 220) but in the case of women married before the Act of 1882, these sections would only be applicable to property acquired after the Act: In re Harris'

husband as

to her consent,

sary, in the case of a

woman who

Settled Estates,

W.

N., Dec. 13, 1884, p. 236.

"Every woman married before the commencement of this Act (on or after the 1st Jan. 1883), shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commencement of this Act, including any wages, earnings, money, and property so gained or acquired by her
as aforesaid." (Sect. 5.) Property to which a married woman was, at the commencement of the Married Women's Property Act, 1882, entitled in reversion or remainder, and which since the Act has fallen into possession, is within section 5, and may be paid and transferred to her upon her separate receipt: Baynton v. Collins, 27 Ch. D. 604; and see In re .Martin, Butterfield v. Mott, W. N., July 12, 1884, p. 164. And in

a similar case with regard to real property it was held that a married woman can convey it without the concurrence of her husband:
re Thompson and Curzon, 29 Ch. D. 1 77, where Kay, J., with some reluctance followed Baynton v. Collins, 27 Ch. D. 604: See also In re Hughes' Trusts, W. N. 1885, March 21, p. 62. In the recent however case of Reid v. Reid, W. N. 1886, Jan. 30, p. 9, where a woman married before the commencement of the Married Women's Property Act, 1882, succeeded, subject to a prior life interest, to a share in a fund not settled to her separate use, it was held that it did not become her separate property, by falling into her possession on the death of the tenant for life, after the commencement of the Act: See also In re Tucker, Emanuel v. Parfitt, W. N. 1885, July 11, p. 1 IV. InreAdames' Trusts, W. N. 1885, July 18, p. 153; In re Hobson, Webster v. Richards, W. N. 1885, Dec. 19, p. 218. Upon the same principle where a married woman, who while an infant had entered into a covenant in a post-nuptial settlement (not binding upon her to settle after- acquired property, became entitled to a fund in Court, by a title which accrued to her after the commencement of the Married Women's Property Act of 1882, it was held by Chitty, J., that as her separate property was not displaced by Beet. 19 of the Act, she was entitled as against thetrus558 ] tee of the settlement to have the * fund transferred to her: Inre Queade's Trusts, W. N., Dec. 6, 1881, p. 225.

In

'

26

HULME

V.

TENANT

559

But a will made beforo the Married Women's Property Act, 1882, came into operation of a testator dying afterwards is not required
by section 5 of the Act to be construed otherwise than as such will would have been construed if the Act had not passed: In reMarch,

Mander v. Harris, 27 Ch. D. 166, 169. The construction of wills by reason whereof on

a gift by will to a husband, his wife and a third party, the husband and wife take one share only as tenants by entireties is not altered by sections 1 and 5 of the Married "Women's Property Act, 1882, in the case of a will made before the Act, although the testator dies after the commencement of the Act, but the husband and wife will each take a eh, moiety of the share, the wife hers to her separate use: In re Mander v. Harris, 27 Ch. D. 166; where the Court of Appeal reversed the decision of Chitty, J., reported, 24 Ch. D. 22, but the Court of Appeal expressly refrained from deciding how the gift would have been construed if the will had been made after the Married Women's Property Act, 1882, had come into operation.

Mm

Investments in the name of a married woman at the commencethe Act of 1882, deemed prima facie her separate property. "All deposits in any post office or other savings bank, or in any other bank, all annuities granted by the Commissioners for the Keduction of the National Debt or by any other person, and all sums forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of the Governor and Company of the Bank of England, or of any other bank, which at the commencement of this Act are standing in the sole name of a married woman, and all shares, stock, debentures, debenture stock, or other interests of or in any corporation, company, or public body, municipal, commercial, or otherwise, or of or in any industrial, provident, friendly, benefit, building, or loan society, which at the commencement of this Act (on the 1st January, 1883) are standing in her name, shall be deemed, unless and until the contrary be .shown, to be the separate property of such married woman ; and the fact that any such deposit, annuity, sum forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of the Governor and Company of the bank of England or of any other bank, share, stock, debenture, debenture stock, or other interest as aforesaid, is standing in thesolename of a married woman, shall be sufficient prima facie evidence that she is beneficially entitled thereto for * her separate use, so as to [ * 559 authorise and empower her to receive or transfer the same, and to receive the dividends, interest, and profits thereof, without the concurrence of her husband,and to indemnify the Postmaster General, the Commissioners for the Reduction of the National Debt, the Governor and Company of the Bank of England, the Governor and Company of the Bank of Ireland, and all directors, managers, and trustees of every such bank, corporation, company, (Sect. 6.) public body, or society as aforesaid, in respect thereof." 21

ment of

~\

* 500

HULME

V.

TENANT.

Investments transferred to a married woman after the commencethe Act of 1882 prima- facie deemed her separate 2)roperty.~\ All sums forming part of the public stocks or funds, or of anyother stocks or funds transferable in the books of the Bank of England or of any other bank, and all such deposits and annuities respectively as are mentioned in the last preceding section, and all shares, stock, debentures, debenture stock, and other interests of or in any such corporation, company, public body, or society as aforesaid, ivhich after the commencement of this Act (on or after the 1st January, 1883) shall be allotted to or be placed, registered, or transferred in or into or made to stand in the sole name of any married woman shall be deemed, unless and until the contrary be shown, to be her separate property, in respect of which so far as any liability may be incident thereto her separate estate shall alone be liable, whether the same shall be so expressed in the document whereby her title to the same is created or certified, or in the books or register wherein her title is entered or recorded, 6r not. Provided always., that nothing in this Act shall require or authorise any corporation or joint stock company to admit any married woman to be a holder of any shares or stock therein to which any liability may be incident, contrary to the provisions of any Act of Parliament, charter, byelaw, articles of association, or deed of settlement regulating such corporation or company." (Sect. 7.)

ment of

Investments in joint names of married woman and others.} All the provisions herein-before contained as to deposits in any post office or other savings bank, or in any other bank, annuities granted by the Commissioners for the reduction of the National Debt or by any other person, sums forming part of the public stocks or funds, or of any other stocks or funds transferable in the books of the Bank of England or of any other bank, shares, stock, debentures, debenture stock, or other interests of or in any such corporation, com* 500] pany, public body, or society as aforesaid * respectively, [ which at the commencement of this Act (on 1st January, 1883) shall be standing in the sole name of a married woman, or which, after that time, shall be allotted to, or placed, registered, or transferred to or into, or made to stand in, the sole name of a married woman, shall respectively extend and apply, so far as relates to the estate, right, title, or interest of the married woman, to any of the particulars aforesaid which, at the commencement of this Act (on the 1st of January, 1883) or at any time afterwards, shall be standing in, or shall be allotted to, placed, registered, or transferred to or into, or made to stand in, the name of any married woman jointly with any persons or person other than her husband." (Sect. 8.)

Concurrence of husband in transfers unnecessary.} " It shall not be necessary for the husband of any married woman, in respect of her interest, to join in the transfer of any such annuity or deposit as

28

HULMB

V.

TENANT.

* 5G1

aforesaid, or any sum forming part of Iho public stocks or funds, or any other stocks >r funds transferable as aforesaid, or of any share, stock, debenture, debenture stock, or other benefit, right, claim, or other interest of or in any such corporation, company, public body, or society as aforesaid, which is now or shall at any time hereafter be standing in the sole name of any married woman, or in the joint
of
i

names

of such married

woman and any

other person or persons not

being her husband."

(Sect. 9.) [If a particular mode of dealing with her separate property is prescribed by the deed of settlement, she cannot deal with the estate in

any other manner than that prescribed by the instrument. This is the rule in all the States, with this further addition in some of the States, that unless the power of alienation is given in the instrument of settlement, she cannot sell the personal estate at all Lancaster v. Dolan, 1 Rawle, 236; Young v. Young, 7 Cold. 461 Marshall v. Stevens, 8 Humph. 159; Miller v. Williamson, 5 Md. 219; Metcalfe v. Cook, 2 R. I. 355; Porcher v. Reed, 12 Rich. Eq. 349; Nixu Bradley, 6 Rich. Eq. 53.]
:

" If any investFraudulent investments with money of husband. ] ment in any such deposit or annuity as aforesaid, or in any of the public stocks or funds, or in any other stocks or funds transferable as aforesaid, or in any share, stock, debenture, or debenture stock of any corporation, company, or public body, municipal, commercial, or otherwise, or in any share, debenture, benefit, right, or claim whatsoever in. to, or upon the funds of any industrial, provident, friendly, benefit, building, or loan society, shall have been made by a married woman by means of moneys of her husband, without his consent, the Court may, upon an application under sect. 17 of this Act, order such investment, and the dividends thereof, or any part thereof, to be transferred and paid respectively to the husband, and nothing in this Act contained shall give validity as against creditors of the husband, to any gift by a husband to his wife, of any property, which, after such gift shall continue to be in the order and disposition or reputed ownership of the husband, or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors; but any moneys * so deposited or invested [ * 561 ] may be followed as if this Act had not passed." (Sec. 10. [Mellon v. Mulvey, 8 C. E. Green, 198; Thompson v. Thompson, 1 Norris, 378; Wickes v. Clark, 8 Paige, 151.]

Power

to a

husband's

life.']

married woman to effect assurance upon her oxen or her "A married woman may by virtue of the power of

making contracts hereinbefore contained effect a policy upon her own life or the life of her husband for her separate use; and the same and all benefit thereof shall enure accordingly " (Sect. 11.1

As

to

Assurance

effected by

a husband or wife on

his or her life

29

* 562

HULME

V.

TENANT.

for the benefit of wife and children or husband and children respectively.'] "A policy of assurance effected by any man on hisown life, and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, or by any woman on her own life, and expressed to be for the benefit of her husband, or of her children, or of her husband and children, or any of them, shall create a trust in favour of the objects therein named, and the moneys payable under any such policy shall not, so long as any object of the trust remains unperformed, form part of the estate of Provided, that if it the insured, or be subject to his or her debts: shall be proved that the policy was effected and the premiums paid with intent to defraud the creditors of the insured, they shall be entitled to receive, out of the moneys payable under the policy, a sum equal to the premiums so paid. The insured may by the policy, or by any memorandum under his or her hand appoint a trustee or trustees of the moneys payable under the policy, and from time to time appoint a new trustee or new trustees, thereof, and may make provision for the appointment of a new trustee or new trustees thereof, and for the investment of the moneys payable unIn default of any such appointment of a der any such policy. trustee, such policy, immediately on its being effected, shall vest in the insured and his or her legal personal representatives, in trust If, at the time of the death of the infor the purposes aforesaid. sured, or at any time afterwards, there shall be no trustee, or it shall be expedient to appoint a new trustee or new trustees, a trustee or trustees or a new trustee or new trustees may be appointed by any court having jurisdiction under the provisions of the TrusThe tee Act, 1850, or the Acts amending and extending the same. receipt of a trustee or trustees duly appointed, or, in default of any such appoitment, or in default of notice to the insurance office, the receipt of the legal personal representative of the insured shall be a discharge to the office for the sum secured by the policy, or for (Sdct. 11.) the value thereof, in whole or in part." *3. Wife's power of disposition over property given or [ * 562 ] The rule laid down settled to her separate use absolutely.] in Peacock v. Monk, that a feme covert, acting with respect to separate property, is competent to act in all respects as a feme sole, is said by Lord Thurlow, in the principal case, ante, p. 540, to be the proper rule, and necessary to support the decisions on this subject. Thus, it has been established, ever since the case of Fettiplace v. Gorges, 1 Ves. jun. 46; S. C, 3 Bro. C. C. 8, that personal property settled upon a feme covert for her separate use, is to be enjoyed with all its incidents; and that, as the jus disponendi is one of them, she may, although there is no express power of disposition given to her, dispose of it, either by acts inter vivos, or by will. (Rich v. Cockell, 9 Ves. 369; Wagstaffv. Smith, 9 Ves. 520; Thackivellw. Gardiner, 5 De G. & Sm. i)8;Modgson v. Hodgson, 2 Kee, 704; Humphrey?. Richards, 2 Jur. N. S. 432; Noble v. Willock,

30

HULME

V.

TENANT.

* 563

8 L. K. Ch. App. 778; S. C, nom. Wittocksr. Noble, 7 L. R. Ho. Lo. 580; WillisY. Kymer, 7 Ch. D. 181); [Unless the instrument of trust restrains a married woman, she has full power to dispose of her separate estate by will or by the appointment in the nature of Perry on Trusts, Sec. 668.] and the power of a married a will. woman to dispose of personal property settled to her separate use extends to interests in reversion, as well as those in possession: Sturgia v. Corp, 13 Ves. 190; Stamford, Spalding, and Boston' Bank v. Ball, 4 De G. F. & Jo. 310; Lechmere v. Brother idge, 32 Beav. 353; King v. Lucas, 23 Ch. D. 723, per Cotton, L. J. And where it appears from the marriago settlement of an English woman who has married a foreigner and therefore acquired his domicil (the settlement being made in and to be construed by the law of England), she can dispose entirely by will of personalty settled to her separate use, although according to the law of her husband's domicil she could only do so partially: In re Hernando, Hernando v. Sawtell, 27 Ch. D. 284. A married woman can dispose by will of personal estate, the income of which is given to her separate use for life, and afterwards the capital is given to her, her executors, administrators, and assigns for her separate use: Bishop v. Wall, 3 Ch. D. 194, 197. She will also pass by her will personal estate which she was not entitled to at the time she made her will, but which she afterwards acquires to her separate use, and was so entitled to at the time of her death The Earl of Charlemont v. Spencer, 11 L. R. Ir. 347,490. And where a husband covenanted to pay immediately after his death 10,000Z. to his wife, her executors, administrators, and assigns for her sole and absolute use and disposal, it was held that the wife, who died in the lifetime of her husband, had power to *dispose of tho 10,000Z. by her will: Baker v. [*563 ] Ker, 11 L. R. Ir. 3. Where however the separate use is confined to a life interest, her power of disposition will not extend beyond that estate, as for instance: if a fund be settled upon trust for a married woman, "a&solutely" and "during her life for her separate use." See Hanchett v. Briscoe, 22 Beav. 496; there a fund being so settled, the trustee took upon himself, without any application to the Court, at the request of the married woman, to advance the sum to her husband, whereby it was lost. It was held by Lord Romilly, M.R., that the trustee was bound to replace it, and her life interest was made answerable towards tho trustee's indemnitv. See also Crosby v. Church, 3 Beav. 485. Whore a married woman making a will has property settled to her separate use to satisfy the words of her will, it will not be held to be made in execution of a special power to which she does not refer: Evans v. Evans, 23 Beav. 1. Seats, where the will of a married woman having a general power would, if not held to be in execution of it, be inoperative: Shelford v. Ackland, lb. 10.

31

* 564

HULME

V.

TENANT.

"Where the will of a married woman is tendered for probate in the Probate Division on the ground that she had separate property, it has power to grant probate of all such property as the testatrix had power to dispose of without deciding what that property is. But it is the general duty of the Court, so far as the evidence and pleadings enable it to do so, to decide judicially of what such propIn the Goods of Tharp, 3 P. D. 76. [If she dies erty consists: without disposing of her separate estate, her husband will take her equitable personal estate in the same manner as he takes her legal If administration is necessary to reach any part personal estate. of her personal estate, he is entitled to administration, and will take the property to his own use, or if another administrator is appointed he must pay over the proceeds to the husband on final settlement. Brown v. Alden, 14 B. Mon. 141; Farie's Appeal, 23 Pa. St. 29; Brown v. Brown, 6 Humph. 127; Rogers v. "White, 1 Sneed, 60.] As to real estate, it has always been considered to be clear that when it was settled to the separate use of a feme covert, she had the same power over her life interest therein as she would have as a feme sole, and she might sell or mortgage it, and a contract to sell her interest has been always specifically enforced against her separate Stead v. Nelson, 2 estate, though not against herself personally: Beav. 245; Wainioright v. Hardisty, 2 Beav. 363; Willcocks v. Hannyngton, 5 Ir. Ch. Rep. 33; Blatchford v. Wooley, 2 Drew. & & Sm. 204; 32 L. J. (Ch.) 534; Vansittart v. Vansittart, 4

J. 70.

entitled for life to her separate an annuity charged on real estate, joined with her husband in assigning it, Sir John Leach, M. R., ai though she had levied no fine, held her bound, after the death Major v. Lumley, 2 Russ. & of her husband, by the assignment:
use, to a reversionary interest in

Where

a married

woman, being

My. 357. So, where a married woman and her husband assigned a rentcharge to which she was entitled, to her separate use for life, it was held by the Master of the Rolls of Ireland, that the deed * 564 ] did not * require acknowledgment under the Irish statute [ for the abolition of fines and recoveries (4 & 5 Will. 4 c.
v. Hassard, 4 Ir. Ch. R. 268. however, held by many judges that a feme covert could not at law by will dispose of real estate settled to her separate use, without an express power of appointment nor by an act inter vivos, otherwise than by fine or recovery, or since the Fines and Recoveries Act (3 & 4 "Will. 4, c. 74) by deed duly executed in conformity with its provisions, so as to disinherit or bind her heir: Churchill v. Dibben, 2 Kenyon's Rep., pt. ii. 98, 84; Anon, cited in Peacock v. Monk, 2 Ves. 380; Newcomen v. Hassard, 4 Ir. Ch. Rep. 268, 278, 274; Harris v. Mott, 14 Beav. 169; Lechmere v. Brotheridge, 32 Beav. 353. The result, however, of the recent authorities, establishes as a

92):

Newcomen

It was,

32

HUL.VE y TENANT.

* 505

general proposition that a married woman having real property settled to her separate use in fee, and not restrained from alienation, has as incident to her separate estate, and without any express power, a complete right of alienation by instrument inter vivos. [Where real estate is conveyed to the separate use of a married woman either absolutely or to a trustee for her absolute separate use, she can sell or dispose of it only in the manner provided by If a power of sale is given to her in the same instrument that law. conveys the real estate to her separate use, she may exercise the power in the manner pointed out in the settlement, regardless of the consent of her husband, and equity will compel her to execute such a power if she has for a valuable consideration entered imp a See, 2 Story's Eq. Jur. Sec. 138, 2 Roper, Huscontract to do so. band and Wife, 185; Shipp v. Bowmar, 5 B. Mon. 103] (not acknowledged under the Fines and Recoveries Act 3 & 4 Will. 4, c. This is expressly decided by Lord Chancellor West74) or by will. bury in the leading case of Taylor v. Meads, 34 L. J. (N. S. Ch. 203; 4 DeG. Jo. & Sm. 597, in which case, however, the married woman had the equitable fee, the legal estate being vested in trus See also Baggett v. Meux, 1 Ph. 027; Atcheson v. Le Mann, tees. 33 L. T. 302; Adams v. Gamble, 12 Ir. Ch. Rep. 102.

In a subsequent case it was held that a married woman, to whom the legal fee of real estate had been devised to her separate use, without the intervention of trustees, might dispose of the equitable fee bv her will during coverture in the same way as if she were a feme'sole: Hall v. Waterhouse; 5 Giff. 04, 13 W." R. (V.-C. S. ) 000. 11 Jur. N. S. 301. See also Pride v. Bubb, 7 L. R. Ch. App. 04; Cooper v. Macdonald, 7 Ch. D. 288; Allen v. Walker, 5 L. R. Exch. 187.

Of course, where real property is given absolutely to a married woman, but the gift thereof to her separate use extends merely to her life interest, and not to the corpus of the estate, a devise by her
of such real property will be invalid: R. Eq. 534.

Trontbeck

v.

Boughey, 2 L.

Moreover femes covertes absolutely entitled to lands to their separate use can contract to sell them to a railway company, and it has been held that their trustees are not persons competent to contract with a railway company for the sale of the land under the 7th section of the Lands Clauses Act, 1845, and any such sale by them will for that reason be invalid: Peters v. Lewes and East * Grinstead Railway Company, 18 Ch. D. 429. [ * 565
]

married

woman may demise

land settled to her

separate use, and her lessee will be protected against the intrusion of the owner of the legal estate: Allen v. Walker, 5 L. R. Exch. L87.

AVhere a woman is equitable tenant in tail of freehold estates to her separate use, she may with the concurrence of her husband bar the estate tail and acquire the fee simple {Cooper v. Macdonald, 7 * 3 WHITE ON EQUITY. 33

~~AS

* 5G0

HULME

V.

TENANT.

Ch. D. 288), even although by a clause in the will under which she took, she was restrained from the alienation of the rents and profits lib.), and although her husband had become bankrupt, and had obtained his order of discbarge: lb. It has been decided in Ireland that where property is limited to the separate use of a married woman, upon a contingency which has not happened, she cannot, pending the contingency, dispose of her See Mara v. Manning, 2 J. & L. 311. interest in the property. There a fund was settled on a husband until his insolvency, and then to the separate use of the wife: the trustee at the solicitation of the wife committed a breach of trust by lending part of the fund The wife claimed the whole to the husband, who became insolvent. fund. Sir E. Sugden decided that the contingent interest of the wife for her separate use was not bound to make good to the trustees the money advanced by them at her request, but his Lordship reserved the question whether her life interest, after the decease and in Bestall v. Bunbury, 13 Ir. of her husband, was so bound Ch. Rep. 318;. S. C, lb. 349, following Mara v. Manning, it was held, that a married woman cannot dispose of an interest in realty given to her for her separate use on a contingency viz., the insolvency of her husband until the event has happened upon which See also Keays v. Lane, 3 I. R. E. 1 Luther v. her estate arises. Bianconi, 10 Ir. Ch. Rep. 194; Re Smallmari's Estate, 8 I. R, Eq. 249. And it has been held that a married woman could not bind in equity, by her general engagement, separate property to which she was not entitled at the time of the contract without a restraint upon anticipation (Pike v. Fitzgibbon, 17 Ch. D. 454), but by the Married Women's Property Act, 1882, coming into force 1 Jan., See sect. 1, subs. 4, post, pp. 587, 588, 1883, she Can now do so. 589, sed vide In re Shakespear, Deakin v. Lakin, 30 Cn. D. 169. It may be here mentioned that where'by an instrument executed before the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), real property is settled to the use of a married woman for life, for her separate use, with remainder over in tail, she is, under the 24th section of the Act, the sole protector of the settlement, and her husband's consent is not requisite under the 34th section, to enable * 506 ] * the tenant in tail to make an absolute disposition of the [ property: Keer v. Brown, Johns. 138. Under the Fines and Recoveries Act (3 & 4 Will. 4, c. 74) deeds to be executed by a married woman were to be produced and acknowledged by her before a judge of one of the Supreme Courts at Westminster, or a Master in Chancery (since abolished), or before two perpetual commissioners, or two special commissioners (sect. 79), and a certificate of the memorandum of acknowledgment with a certificate verifying the same were to be filed in the Court of
;

Common

Pleas.

(Sect. 84.)

However, now by the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), one perpetual and one special commissioner is substituted for 34

V4

au.

ill

LMK

V.

TENANT.

* 567

two, and a

of acknowledgment indorsed on the deed (Sect. 7.) without any separate certificate being filed And now under the Married Women's Property Ad. 1882 15 & 46 Vict. c. 75), every woman married after the year 1882, and every married woman, as to property acquired after that year, is in the position of a feme so la, and can convey without any acknowledg(Sects. 2. 5.) ment, and without the concurrence of her husband. And it has been recently laid down by Sir G. Jessel, M. R., that it is not impossible that a married woman may so deal with copyright to which she is entitled for her separate use as to prevent the "To illusassigns of that copyright from breaking her contract. trate," said his Honor, "what I mean, take a simple instance. Si ippose a married woman, having a copyright settled to her separate use. agreed to give an exclusive right to the publisher to publish an edition of 10,000 copies of a book, and at the same time agreed that in consideration of his agreeing to publish it at a given price per copy, and to pay her a sum of money, she would not grant a license to any other person for a definite period to publish that book, and would not allow it to be published either by herself or anybody else that sort of contract would, I think, be enforceable against anyone who took either an assignment or sale of the copyright with If it were otherwise, instead of a married woman having notice. the power of dealing with her property in the same way as a man, she would not have the power of entering into the same beneficial arrangement as a man can enter into:" Warne v. Routledge, 18 L.
is sufficient,
(

memorandum

R. Eq. 497, 500. Where there are trustees it is now clear, that a married woman can bind her separate property, without their assent, unless it is rendered necessary by the instrument giving her that property. Thus in Essex v. Atkins, 14 Ves. 542, the grant of an annuity by a * married woman out of her personal pro- [ *567 ] perty settled to her separate use was established without See, also, Grigby v. Cox, 1 Yes. 518 the assent of the trustees. Pybus v. Smith, 1 Ves. jun. 193; and Parkesv. White, 11 Yes. 223. The cases of Whistler v. Newman, 4 Ves. 129, and Mores v. Huish, 5 Ves. 692, may, therefore, be considered as overruled. Where, moreover, a trustee has received notice of a charge made by a married woman on her separate property, in his hands, he will
;

be held personally liable for payments subsequently made to her: Hodgson v. Hodgson, 2 Kee, 704. Amongst the persons who may enlarge the residue of a long term, to which they are beneficially entitled, into a fee simple under sect. 05 of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), may be mentioned, "a married woman with the concurrence of her husband, unless she is entitled for her sej^o rate vse, whether with restraint on anticipation or not, and then without his concurrence" sub. s. (2). With regard to the powers of a married woman as a tenant for

35

* 56S
life

HULME

V.

TENANT.

under the Settled Land Act [See Brett's Lead. Cas. Mod. Eq. 149.] 1S82 (45 & 46 Vict. c. 38), it was thereby enacted by sect. 61: (2.) That "where a married woman who, if she had not been a married woman, would have been a tenant for life, or would have had the powers of a tenant for life under the foregoing provisions of this Act, is entitled for her separate use, or is entitled under any statute passed or to be jmssed,for her separate property, or as a feme sole, then she, without her husband, shall have the powers of a tenant for life under this Act. (3 ) Where she is entitled otherwise than as aforesaid, then she and .her husband together shall have the powers of a tenant for life under this Act. (4.) The provisions of this Act referring to a tenant for life, and a settlement and settled land shall extend to the married woman without her husband, or to her and her husband together, as the case may require, and to the instrument under which her estate or interest arises, and to the land therein comprised. (5.) The married woman may execute, make, and do all deeds, instruments, and things necessary or proper for giving effect to the provisions of this section. (6.) A restraint on anticipation in the settlement shall not prevent the exercise by her of any power under this Act."

Liability of corpus of married ivomari's property when she has for her separate use with a power of appointment.^ According to an eminent judge the 'cases on this subject, where the married woman has a limited interest only, as for instance * 568 ] for life * to her separate use, with a power of appoint[ (i.) Where the ment, are divisible under three heads, power of appointment is general, by deed or writing or by will, (ii.) Where it has been by will only, and the power has been exercised, (iii.) Where there has been a limitation in default of apPer James, L. pointment, and the power has not been exercised. J., 4 L. R. P. C. 592. With regard to the first class of cases within which the principal case falls, it is clear that where property is limited to a married woman, to her separate use for life, with remainder as she should, notwithstanding her coverture, by deed or will appoint, and a fortiori where there is a remainder to her executors or administrators, it will be treated as an absolute gift to the sole and separate use of
4.

life interest

the married woman, and consequently will be liable to general engagements and debts (see also Allen v. Papworth, 1 Ves. 163; Heatley v. Thomas, 15 Ves. 596; the London Chartered Bank of Australia, v. Lempriere, 4 L. R. P. C. C. 572,587, 595, overruling Shattock v. Shattock, 2 L. R. Eq. 182), [A contract of a married woman, where it binds her separate estate, binds only that of which she was possessed at the time of the contract: Rogers v. Ward, 8 Allen, 389.] although during her life the Court, as in the principal case, has only affected her limited interest in the property and not the corpus: Field v. Sowle, 4 Russ. 112; Bishop v. Wall, 3 Ch. D. 194.

30

HULME

V.

TENANT.

* 569

And there is no distinction between a case where the life estate The true view seein- to precedes the power and where it follows it. be this, that for the purpose of giving effect to the general engage ments of a married woman, if property is settled upon her for life for her separate use, with power to dispose of it by </<<<l or will, that is her separate property, so as to be subject to her general engagements. See Mayd v. Field, 3 Ch. D. 587, 593. Even where real property was given to trustees upon trust for a married woman, her heirs and assigns, with a special power of appointment to her, and an ultimate limitation to her separate use in fee, it was held, that the special power of appointment did not derogate from the right of disposition incident to ownership, and that she might consequently dispose of the property by will: Taylor v. Meads, 4 De G. Jo. & Sm. 597; 34 L. J. (N. S.)Ch. 203. Incases falling under the second head: where the power of appointment is by will only, and has been exercised but not for credThus, although itors, the authorities do not appear to be consistent. where a man having a general power of appointment over property by will, which, in default of appointment, goes to others, by exercising his appointment renders the appointed property assets for payment of his debts (Jenney v. Andrews, 6 Madd. 264; and see note to Silk v. Prime, vol. ii., post), it has been held that if a married woman exercised such * a power, although [* 569 having a life estate to her separate use, the appointed property will not be applicable to the payment of debts which she may have contracted as a feme sole: Vaughan v. Vanderstegen, 2 Drew. 165; and see Heatley v. Thomas, 15 Ves. 596; Hobday v. Peters, 28 Beav. 3~4, 356; Blatchford v. Woolley, 2 Drew. & Sm.
]

204.

On a second hearing of Vaughan v. Vanderstegen, 2 Drew. 363, the Vice- Chancellor held that there had been fraud on the part of the married woman, as she had misled persons with whom she had dealings, by holding herself out to be an unmarried woman, and that thereby she had made the appointed estate general assets to which her creditors were entitled Vaughan v. Vanderstegen, 2 Drew. 363; and see Hobday v. Peters, 28 Beav. 354. In commenting on this class of cases, Turner, L.J., says: "In the case of Norton v. Turvill (2 P. \Ynis. 144), as explained in Sockett v. Wray (4 Bro. C. C. 483), the exercise of the power by the will of the married woman seems to have been held to let in a bond creditor against the appointees under the will; and in Hughes v. Wells (9 Hare, 749), I seem to have intimated that this might be the effect of the exercise of the power, as in other cases of the exercise of the general power of appointment by will, and certainly not upon the ground that power is property. But the Vice- Chancellor Kindersley, in whose judgment I have quite as much confidence as in my own, seems to have dissented from Hughes v. Wells in the case of Vaughan v. Vanderstegen (2 Drew. 165); and I observe that Sir William Grant
:

37

* 570

HULME

V.

TENANT.

has treated the point as doubtful in Heatley v. Thomas (15 Ves. 596). I say no more therefore, upon this point, than that it may be conJohnson v. Gallagher, 3 De G. F. & J. 513. sidered open." WiUi reference to Vaughan v. Vanderstegen, it has been observed by James, L. J., delivering the judgment of the Privy Council in an important case that, " It is not easy to see on what principle the fraud could alter the nature of the property subject to appointment, or afIt is easy to see how fraud might make that a fect the appointees. debt to which the married woman would be in equity liable notwithstanding her coverture, and that, there being such a liability or debt, equity would deal with any property to which she was, notwithstanding coverture, absolutely entitled, and any property over which she had a general power of appointment, exactly as it would do in the

Given the relation of case of a man or feme sole dying indebted. debtor and creditor in equity, all the consequences of such relation would appear to follow just as if there were no coverture in * 570] the case:" The London Chartered * Bank of Australia v. [ Lempriere, 4 L. R. P. C. C. 596. In the recent case, moreover, of In re Harvey's Estate, Godfrey v. Harben, 13 Ch. D. 216, Hall, V.-C, held that a married woman on whom property was settled for life to her separate use remainder as she should by will appoint by the exercise of her testamentary power, rendered the property appointed liable to her debts. See also Hodges v. Hodges, 20 Ch. D. 749. [Property conveyed properly to the separate use of a married woman is absolute and she can deal with it as she chooses: Parker v. Converse, 5 Gray, 336; Williams' Appeal, 83 Pa. St. 377.] It has never been decided, that the execution of a power by a married woman not connected with separate property, makes the property subject to the power liable to debts contracted on the faith of her separate property. By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75) which came into operation on the 1st of January, 1883, it has been enacted that "the execution of a general power by will of a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her separate (Sect. 4.) estate is made liable under this Act." With regard to the cases falling under a third head, viz., where there has been a limitation in default of appointment and the power has not been exercised, it has been laid down by James, L. J., "that there cannot be any reasonable doubt that the debts and engagements of a married woman cannot prevail against the parties entitled in default of appointment, and the case of Nail v. Punter (5 Sim. 599) impliedly decides that point:" The London Chartered Bank of Australia v. Lempriere, 4 L. R. P. C. C. 592.
5.

tracts not referring to

Liability of urife's separate estate to her debts and general conIn the cases before mentioned, the marit.]

38

HDLME
ried

V.

TENANT.

* 571

woman had acted wit h respect to her separate property, and thus shown her intention to deal with it. The point decided by Hulme v. Tenant goes much farther than that, and shows that her separate property will be bound by genera* engagements in writing which do nol refer to, or make mention of it. [The general contracts of a married woman arc valid contracts to
If she binds herself by a writbe paid out of her separate estate. ten instrument to pay a sum of money, the implication of law is, that she intends to charge her separate property, although she makes no It has direct or indirect reference to it: Perry on Trusts, Sec. 657.] accordingly been frequently held, that the separate estate of a feme covert is rendered liable to pay her bond (Lillia v. Airey, 1 Ves. jun. 277; Norton v. Turvil, 2 P. Wnis. 144: Peacock v. Monk, 2 Ves. L93); although it be given to her husband, or although she have joined in it with him, as in Hulme v. Tenant; (La Touche v. La Touche, 3 H. & C. 576;) or with a stranger (see Heatley v. Thomas, 16 Ves. 596; Standford v. Marshall, 2 Atk. 68); or a sum which she has covenanted to pay to the trustees of a daughter's marriage settlement: Mayd v. Field, 3 Ch. D. 587. The same has been held as to a bill of exchange, accepted (Stuart v. Lord Kirkwall, 3 Madd. 387; and Owen v. Homan, * 4 H. L. Cas. 997) or endorsed [ * 571 ]
;

(If Henry v. Davies, 6 L. It. Eq. 462 10 L. R. Eq. 88) by a feme covert, and as to a promissory note given by a feme covert herself alone (Bullpinx. Clarke, 17 Ves. 365; Field v. Soivle, 4 Russ. 112); or jointly and severally with her husband (Davies v. Jenkins, 6 Ch. D. 728), a guarantee, (Morrell v. Cowan, 6 Ch. I). 166; 7 Ch. lb.; Gallagher v. Nugent, D. 151); as to the the costs of the suit. 8 L. R. Ir. 353; and see if'Henry v. Davies, 10 L. R. Eq. 88. The separate estate moreover of a married woman has been held bound by her contract to purchase (Picard v. Hine, 5 L. It. Ch. App. 274), by an agreement entered into by her even without the knowledge of her husband, to pay an additional rent for a house: Master v. Fuller, 4 Bro. C. C. 19; 1 Ves. jun. 513. So on a verbal agreement to take a house for a term of years, on part performance of the agreement by taking possession, payment of the past rents was enforced as a charge upon her separate estate: Gaston v. Frankum, 2 De Gr. & Sm. 561; 16 Jur. 507. [Even in the absence of any agreement between the husband and wife equity concedes to the wife considerable power to contract: Resor v. Resor, 9 Ind. 347; Williams y. Maul, 20 Ala. 721; Butlor v. Rickets, 11 Iowa. 10-: Gosden v. Tucker, 6 Mun. 1; Pinnev v. Fellows, 15 Vt. 525; Wood v. Warden, 20 Ohio, 518; Whitten v. Whitten, 3 Cush. 191.] If a married woman gives a retainer in vwiting to a solicitor, it implies a promise to pay whatever shall be reasonably and lawfully demanded by the solicitor or attorney acting under that retainer. So, if there be no formal retainer, but only a written acknowledgment or adoption of the professional conduct, or instruction- in writing to proceed further, the party who gives such written in;

39

*572

HULME

V.

TENANT.

structions, in effect promises to pay whatever may lawfully become due to one acting in obedieoce to them; that is, to pay the costs

See Murray v. Barlee, 3 My. & K. 210; Barshall be taxed. Barlee, 1 S. & S. 100. A married woman sued separately under Order XVI. Rule 8, was held not to be obliged to give security for costs if she bad property settled to her separate use (Brown v. North 9 Q. B. D. lb. Secus, if she were restrained from anticipation. 52). And it has been held in the Divorce Court that a woman having separate property is liable to costs in respect of a suit for nullity of marriage improperly instituted against her husband: M. v. C, 2 L. R. P. & D. 414; see also, Miller v. Miller, 2 L R. P. & D. 13; see also as to costs in the Probate Division, Morris v. Freeman, 3

which
lee v.

P. D. 65.

The mere fact, however, that a solicitor of the husband and wife had transacted business relating to the separate estate of the wife, where the wife had neither in writing nor verbally charged her separate property, nor expressly contracted or promised to pay the
costs thereof has been held not sufficient to render her estate directly liable for such costs: Callow v. Howie, 1 De G. & Sm. 531. When a solicitor has been employed on behalf of a hus[ * 572 ] band * and wife in respect of the wife's separate estate, in the absence of a special contract, the husband is liable to the solicitor: Wright v. Chard, 4 Drew. 702, 703. Where, moreover, a married woman whose husband was insane,

instructed a solicitor to act for her and her infant children, appearing by their next friend, in a suit to which she was not a party, and which did not relate to her separate estate, it was held by Sir John Romilly, M. R., that her separate estate was not liable for the costs: Re Pugh, 17 Beav. 336. An application by a married woman to tax a solicitor's bill, for business in respect to her separate estate, must be made by her next Pending a reference for the friend: In re Waugh, 15 Beav. 508. taxation of a solicitor's bill against a married woman, the solicitor cannot maintain a suit to enforce a lien for his bill of costs on her separate estate: Waugh v. Waddell, 16 Beav. 521. For a decree establishing and directing payment of a claim by a creditor against a married woman's separate estate, see 2 Seton Dec. 687, 4th Ed. In many cases it has been erroneously held, that the general engagements of a married woman, in writing, operate and are valid only as appointments made with reference to the separate estate, and not as mere contracts: and consequently, as a mere verbal contract cannot operate as an appointment, that the separate estate of a feme covert is not bound by her general engagements, unless they See Clerk v. Miller, 2 Atk. 379; Dowling v. Maguire, are in writing. LI. & G. Rep. t. Plunkett, 19; Bolton v. Williams, 2 Ves. jun. 142; Greatley v. Noble, 3 Madd. 94; Stuart v. Kirkwall, 3 Madd. 389;

40

III'LME V.

TENANT.

* 573

Aguilar v. Aguilar, 5 Madd. 418; Cheater v. 77'tf/. 1 V. & B. 334; Murray v. Barlee, 4 Sim. 82, per Sir L. Shadwell, V. C. The more recoct cases, however, upon the authority of the principal case, decide that a feme covert can, as to her separate estate, outer into contracts in the same manner as a feme sole, and that her contracts or engagements, upon this principle, are equally binding whether they are written or merely verbal, and that it is therefore unnecessary, as well as incorrect in principle, to speak of her written engagements as operating merely as appointments. See Murray v. Barlee, 3 My. & K. 223; Owens v. Dickinson, 1 Or. & Sed vide Shattock v. Ph. 53; Master v. Fuller, 4 Bro. C. C. 19. This doctrine has been most ably supShattock, 2 L. R. Eq. 182. ported in Lord Brougham's elaborate judgment in Murray v. BarAnd by Lord Cottenham, C, in Owens v. lee, 3 My. & K. 223. Dickinson, Cr. & Ph. 53. The following has been laid down by a very accurate and learned judge, as the principle upon which the Courts acted * (previous to recent legislation on the subject), viz. that [ * 573 ] " If a married woman, having separate property enters into a pecuniary engagement, whether by ordering goods or otherwise, which (if she were a feme sole) would constitute her a debtor, and in entering into such engagement she purports to contract, not for her husband, but for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she is contracting, that constitutes an obligation for which the person with whom she contracts has the right to make her separate estate liable; and the question whether the obligation was contracted in such manner must depend upon the facts and circumstances of each particular case. It clearly is not necessary that the contract should be in writing, because it is now admitted that if a married woman enters into a verbal contract, expressly making her separate estate liable, such contract would bind it; nor is it necessary that there should be any express reference made to the fact of there being such separate estate, for a bond or promissory note given by a married woman, without any mention of her separate estate, has long been held sufficient to make her separate estate liable. If the circumstances are such as to lead to the conclusion that she was contracting, not for her husband, but for herself, in respect of her separate estate, that separate estate will be liable to satisfy the obligation." Per Kindersley, V.-C, in Mrs. Matthewman's Case, 3L. R. Eq. 787; and see Johnson v. Gallagher, 3 Do G. F. & J. 494; Hartford v. Power, 8 Ir. R. Eq. 602; Picard v. Hine, 5 L. R. Ch. App. 274; The London Chartered Bank of A tstralia v. Lempreire, 4 L. R. P. C. C. 572; 2 Seton Dec. OSS, GS9,

4th Ed.

But a verbal engagement will not bind the separate property of a married woman in a case where, had she been a feme sole, a writing would have been required. As if a feme covert were to undertake
41

* 574

HULME

V.

TENANT.

See Re verbally to pay the debt of a stranger or of her husband. Syke's 'Trust, 2 J. & H. 415. It has been held, in Ireland, that a separate estate in realty cannot, by reason of the Statute of Frauds, be rendered liable to satisfy the general engagements of a married woman not in writing even if see also her personalty can: Burke v. Tuite, 10 Ir. Ch. Rep. 467 Shattock v. Shattock, 2 L. R. Eq. 192; Johnson v. Gallagher, 2 De. The case of Burke v. Tuite seems however to be G. F. & Jo. 514.
;

wrongly decided, because wben a married woman becomes liable upon a general engagement, her real property settled to her separate use, may be rendered liable thereon, not by way of specific * 574 performance of a contract, but by way of equitable * charge [ ] and execution upon all her separate estate whatsoever and in whomsoever it may be vested. Tbe distinction has likewise been taken, that as the general engagements of a feme covert are binding upon her separate estate, on the ground only of her intention that they should be a charge upon it, that
therefore, tchen
it is not her intention to contract a personal debt, or to charge a gross sum upon her separate estate, the Court cannot raise an implied assumpsit to charge it in opposition to her intention. S. C, Thus, in Williams v. The Duke of Bolton, 4 Bro. C. C. 297 2 Ves. jun. 138, a married woman, having separate property, for a consideration which she received, sold an annuity charged upon that property. The annuity being void for want of a proper memorial, it was held that the grantee would not have an equity specifically to affect the fund clothed with a trust for the separate use of a married woman, with the consideration, upon the ground of the difficulty of raising an implied assumpsit, contrary to the intention See, also, Jones v. Harris, 9 Ves. 48G, in which case of the parties. an annuity granted by a feme covert, charged upon her separate estate, being void for want of a proper memorial, it was held that the consideration money could not be recovered out of her separate "It is very difficult," said Lord Eldon, in his judgment, "to estate. maintain, that, where her intention was not to contract a personal debt, or to charge a gross sum upon her separate estate, but the contract was for an annuity, which contract the party dealing with her had it in his power to make effectual, and such as to bind her according to the intention of both, and he failed in that, a Court of equity ought to assist him, and to give him such a charge as she See also, Aguilqr did not intend to give or he intended to have. " Johnson v. Gallagher, 3 De G. F. & J. v. Aguilar, 5 Madd. 414 513; Shattock v. Shattock, 35 Beav. 489; 2 L. R. Eq. 182. Upon the same principle, where a married woman received from the trustee rents of an estate to which she claimed to be entitled as her separate property, but it turned out that she was not entitled, the Court refused to give relief to the real owner against her other separate estate: Wright v. Chard, 4 Drew. 673; 1 De G. F. & Jo.
;

42

HULME

V.

TENANT.

* 575

507; 800 also Johnsonv. Gallagher,^ DeG. F. & Jo. 513; Shattock v. Shut fork; 2 L. B. Eq. 182. So likewise the separate estate of a married woman was not in Sec general liable for breaches of trust or torts committed by her. Wat ii ford v. Heyl, 20 L. R. Eq. 321. There an annuity (if 100/. a year was bequeathed to A. B., a woman then unmarried, upon A. B. afterwards married, trust f or C. D. during his life. * and under the settlement executed upon her marriage [*575 A. B., with the she became entitled to separate estate. assent of her husband, received the annuity, but only applied a Upon a bill filed by C. D. small part of it for the benefit of C. D. to render the separate estate of A. B. liable for what was duo to him in respect of the annuity, so far as the estate of her husband might be insufficient to pay the same, it was held by Sir G. Jessel, M. 11., that he could make no decree against her separate property.
)

Honor, "as I have always understood it, Or rather her separate estate is a married woman is liable liable (for there is no personal liability as far as she is concerned) to make good all contracts which are made by her with express reference to the separate estate, or which from the nature of the but she is not contract itself must be intended to be so referred liable even for general contract which from their nature cannot be a fortiori she is not liable for general torts, but her so referred

"The

principle,"' said his

is this:

husband

is liable."

It has, however, been enacted by the Married Women's Property Act, 1882, that "a married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract, or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined, with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her Under separate property and not otherwise." (Sect. 1, subs. 2.) sect. 1 of the Married Women's Property Act, 1882, s. 1, sub-s. 2, 3, 4, and ss. 3, 12, 13, a wife is chargeable in respect of her separate estate for money lent by her husband to her, after their marriage and for money paid by him for her after their marriage at her request: Butler v. I latter, 14 Q. B. D. 831, affirmed on appeal W.

N. 1885, Dec. 5, p. 204. Upon the principle that a married woman has an absolute power of alienation over her separate property, she will by concurring with her trustees in a breach of trust which results in the loss of <t fund set f le< I to her separate use, be held to have disposed thereof, and cannot call itpon the trustees to replace it (Crosbyv. 'hurch, Beav. 485; Brewer v. Sivirles, 2 Sm. & G. 219; Hanchett v. Briscoe, 22
(
">

4;;

* 576

HULME

V.

TENANT.
is

Beav. 496; Mantv. Leith, 15 Beav. 524), unless she

restrained

from anticipation: Davies v. Hodgson, 25 Beav. 186. But she can compel the trustees to make good a fund which she was only entitled to upon a contingency for her separate use, and which the trustees before the contingency happened, in breach of trust, upon her solicitation, lent to a person who afterwards became insolvent. Mara v. Manning, 2 J. & L. 311. See ante, p. 565. * 576 ] Although the separate estate of * a married woman was [ not in general liable for breaches of trust or torts committed by her (Wainford v. Heyl, 20 L. R. Eq. 321), it has been deble to

cided that a wife's property settled to her separate use, is applicamake good a loss occasioned by her own breach of trust, in making away with other property under the same trust. See Clive There the separate estate of a married v. Carew, 1 J. & H. 199. woman under a settlement, was held liable to make good the loss occasioned by her wrongfully selling absolutely a valuable chattel in which she had a limited interest only under the same settlement. So if a married woman who is executrix or trustee has wasted the trust estate, the usual right of retainer may be exercised against her estate under the same instrument: Pemberton v. M'Gill, 1 Drew.

&

Sm. 266.

estate may also be liable for a fraud relating to her separate estate by way of fraudulent representation; per Jessel, M. E., 20 L. R. Eq. 324* In the cases before mentioned the arrears of income under the same trust, though settled to her separate use without power of anticipation, are also liable (Pemberton v. M'Gill, 1 Drew. & Sm. 266); but the future income of property so settled is not liable durSee Clive v. Carew, 1 J. & H. 199; Pemberton ing her coverture. v. M'Gill, 1 Drew. & Sm. 266; Jackson v. Hobhouse, 2 Mer. 488. and see the note to Brice\. Stokes, vol. ii., as to the effect of acquiescence in a breach of trust. Now, however, as the word "contract" in the Act of 1882, includes, the acceptance of any trust, or of the office of executrix or administratrix, and the provisions of this Act as to liabilities of married women are extended to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband is not subject to such liabilities unless he has acted or intermeddled in the trust or administration. (Sect. 24.) Formerly, although the husband had no property out of which to pay his own debts, or to maintain himself or his family by his wife, he would not be able to claim any contribution for such purposes out of the separate estate of his wife, even if she may have See Hodgens v. Hodgens, 4 C. & F. 323, 373; S. eloped from him. C, LI. & G. t. Sugd. 299; LI. & G. t. Plunk. 137, 148; HBligh,N. S. 62; and see Lumb v. Milnes, 5 Yes. 520. Now, however, by sect. 45 of the Divorces and Matrimonial

Her separate

44

HULME

V.

TENANT.

* 577

Causes Act (20 & 21 Vict. c. 85), which the Court shall pronounce

it is enacted, that "in any case in a sentence of divorce or judicial separation for adultery of the wife, if it shall be made to appear to

the Court that the wife is entitled to any property either in possession * or reversion, it shall bo lawful for the Court, [ *577 if it shall think proper, to order sneh settlement as it shall think reasonable to be made of such property or any part thereof, for the benefit of the innocent party, and of the children of the marriage, or either or any of them." See Milne v. Milne and Fowler, 2 L. R. P. & D. 295; Stone v Stone and Brcnvnrigg, 3 ftw. & Tr. 372, 33 L. J. (P.M. & A.) (J5; Sijkes v. Syke* and Smith, 2 L. R. P. & D. 163. Under the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), a married woman having separate property, became* liable to the parish for the maintenance of her husband (sect. 13), and of her children, but so as not to relieve her husband from his liability
|

'.

to maintain

them

(sect. 14).

This Act has been repealed by the Married "Women's Properly Act, 1882, by which it is substantially re-enacted, the casus omissus {Coleman v. Overseers of Birmingham, 6 Q. B. D. 615) of the liability of a married woman having separate estate for her grandchildren in such a case being supplied. It enacts that a married woman, having separate property, is liable to the parish for the maintenance of her husband (sect. 20), and of her children, and grandchildren, but so that her husband, shall not be relieved from any liability imposed upon him by law to maintain her children or grandchildren (sect. 21). Although the wife has separate property of her own, she may duriug the lunacy of her husband pledge his credit for her own maintenance, and her husband, by his estate, will be liable: Davidson v. Wood, 11 W. R. (V.-C. W.) 561; lb. (L. J.) 791. [An insane person is liable for necessaries furnished to his wife: Strrles v. Pipkin, 69 N. C. 513; and see Darby v. Carbanne, 1 Mo. App. 126. The duty of the husband to support the wife, while she is in the path of duty, is by all opinions absolute, and if she is not in the wrong, the law will create a promise by him to pay a third person who may furnish necessaries for her at her request, directing them to be charged to bim: 1 Bishop on Mar. & Div. Sec. 553] Where, however, a married woman, having separate property, is a lunatic, an allowance will be made thereout to the husband for the extraordinary expenses occasioned by her malady, if he be in poor circumstances and unable to meet them: Edwards v. Abrey, 2 Ph. 37. And though the Court might not reimburse the bus band for what he had actually paid for her maintenance (lb., 38). the case might be different where money was still due to parties who had the care of her; lb. 38: and see Brodie v. Barry, 2 V. & B. 36. And see In re Bakers Trusts, 13 L. R. Eq. 168, where the accrued dividends on a fund settled to the separate use of a married woman,

45

* 578

HULME

V.

TENANT.

for many years been an inmate of a pauper lunatic asylum Colony of Victoria, Australia, were ordered to be paid to the Colonial Master in Lunacy towards the payment of expenses incurred for past maintenance: and the future dividends on the same funds were ordered to be paid to the same Master in Lunacy, he being, on the construction of the colonial statute, the committee of

who had

in the

the lunatic's estate. *And even if the husband were of ability to maintain his wife under such circumstances, the Court might expend part of her separate income for such purposes; "for," said a learned judge, "if a commission was taken out, I must look at the substantial benefit of the object of it, and must consider the extent, not only of the husband's means, but of his obligation to maintain her; and if the law would not compel him to contribute to her comfort in the degree in which he ought, I should not scruple to direct the committee to apply a part of her separate income:" Brodiew. Barry, 2 V. & B. 39; see, also, Nettleship v. Nettleship, 10 Sim. 236. See, also, Re Evans, Shelf, on Lunacy, 2nd ed. 204, and Peters v. Grote, 7 Sim. 238, as to the application of part of the capital belonging to a married woman, a lunatic, and deserted by her husband, for her
[

* 578

maintenance.

And where the husband has paid off a mortgage upon the separate estate of his wife, he can charge the same to the extent of the mortgage: Nelson v. Booth, 5 W. R. 722. A married woman having shares in a joint-stock company, which are agreed to be settled to her separate use, is liable, so far as her separate estate is concerned, as a contributory, but her husband is not so liable: Ex parte Luard, 8 W. R. (V.-C. K.) 73: In re Leeds Banking Company, Mrs. Mattheirman-s Case, 3 L. R. Eq. 781; Butler v. Cump>ston, 7 L. R. Eq. 16.
So where a married woman, having separate estate, contracted to take shares in her own name in a joint-stock company, which she paid for out of her separate estate, the company being afterwards wound up, it was held by Sir R. T. Kindersley, V.-C.,' that as the deed of settlement did not exclude married .women from being shareholders so as to bind their separate estate, she ought to be placed on the list of contributories in her own right, so as to bind "If," said his Honor, "a married woman, her separate estate. having separate estate, can contract with another pei'son so as to render that separate estate liable, there seems to be no reason why she may not in like manner contract with a joint-stock company; and if she may so contract to purchase a horse or a jewel, or any other chattel, there is surely no reason why she may not equally contract to buy shares in the company for her own separate use. And if she may thus purchase shares, she may of course stand as a shareholder on the register (supposing there is nothing in the company's deed to prevent it), so as to make her separate estate liable and, if that is so, there is no reason why she in respect thereof
;

46

UULME

V.

TENANT.

580

should not be placed in like manner on tho list of the contributor 3 In re Leeds Banking Company, Mrs. Matthewman's Ca L K. Eq. 781. .",79 *See further, as to liability of a married woman, or her J husband on her behalf, when she is a contributory, Buckley on Companies, 4th ed. p. 183. "Ordinarily a married woman could not be made a bankrupt before or under the Act of 1870 (Ex parte Holland, In re Heneage,
ries:"
. |

Ap'p. 807; and see Simmers v. City Bank,9 L. R. C. P. 584); even although she had separate estate, and had entered into contracts and engagements after the Married Women's Property Act, 1870. (lb. ; and see Ex parte Jones, In re Grissell, 12 Ch. D. 484) a though she clearly might, as a trader having trade assets, be made bankrupt according to the custom of London, or as the wife of a Lavie v. Phillips, 3 Burr. 1776; Ex parte Franks, 7 Bing. convict: 762. See Nagle v. CDonnel, 7 I. R. C. L. 7 J; Conlon v. Moore, 9 I

9L. R. Ch.

R. C. L. 190. Under the Married Women's Property Act, 1882, "every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in (Sect. 1, subs. 5.) the same way as if she were a feme sole."
6. Of the receipt by the husband of the income or corpus of the Where property is settled to the sepaseparate property of infe.] rate use of a married woman without any restraint upon anticipation, she can deal with the income or corpus as she pleases, and may make a gift thereof to her husand or any one else: Caton v. Rideout, 1 Mac. & G. 599, 601; Dixon v. Dixon, 9 Ch. D. 587, 590. With regard to the income arising from such property, it is clear that if she expressly authorises it to be paid to her hudband, he is

entitled to receive
It
is,

it.

now well established, that where a wife tacitly permits, as well as where she expressly authorises, her husband to receive the income of her separate property, especially if the husband continues to receive it for a great number of years, and it is applied for the benefit of the family, she cannot claim any reimbursement out of his estate (Christinas v. Christmas, Sel. Ch. Ca, 20; Powell v. Hankey, 2 P. Wms. 82; Pawlet v. Delaval. 2 Ves. 663; Squire v. Dean, 4 Bro. C. C. 326; Mines v. Busk, 2 Ves. jun.
moreover,
488; Smith v. Camelford, 2 Ves. jun. 698, 716: Beresford v. Arch19; bishop of Armagh, 13 Sim. 643; Bartlett v. Gillard, 3 Russ. Carter x. Anderson. 3 Sim. 370; Arthur v. Arthur, 11 Ir. Eq. Rep. 511; Corballis v. Grainger, 4 Ir. Ch. Rep. 173; Hughes v. Wells, 9 Hare, 749; Payne v. Littte, 26 Beav. 1); even where there is a clause against anticipation (Rowley v. Unicin. 2 K. & J. 138); and the fact that the husband, who, with his wife's concur* 580 ] rence, received the income of her separate estate, was *one of the trustees, has been held to be immaterial in a case
1
\

47

* 581
where
it

HULME

V.

TENANT.

appeared upon the evidence that payment was made to the Caton v. Rideout, 1 Mac. as husband, and not as trustee: & G. 599. And the practice between the husband and wife is proper evidence to show acquiescence and concurrence: lb. The rule that the arrears of the wife's separate estate cannot be recovered as against the husband, being founded on the presumption that it has been applied to the maintenance of the wife or to the general purposes of the family, with the assent of the wife, does not, it seems, apply where there is a receiver over the property liable to pay it, nor has it any application against a purchaser for valuable consideration: Foss v. Foss, 15 Ir. Ch. Rep. 215. In some cases, howevei', the husband has been obliged to account See cases cited in note to Ex parte Elder, for one year's receipts. 2 Madd. 286; and Howard v. Digby, 2 C. & F. 643; 8 Bligh, N. S. 224,'and the comments upon it; Sugd. Prop. 162; Arthur v. Arthur, 11 Ir. Eq. Rep. 513; Lee v. Grundy, 1 Jur. N. S. 953; In re Kirwan, 1 Ir. R. Eq. 553; Corballas v. Grainger, 4 Ir. Ch. Rep. 173; Mackey v. Maturin, 15 Ir. Ch. Rep. 150; and see cases cited in note to Payne v. Little, 26 Beav. 1. "Where the wife has neither expressly nor by tacit acquiescence authorised her husband to receive the income, she will be entitled Parker v. Brooke, 9 Ves. 583 to reimbursement out of his estate Moore v. Moore, 1 Atk. 272. And the assent of the wife to the husband's receipt of the income of her separate estate will not be presumed after her husband has fraudulently and in breach of trust sold out,and misappropriated Thus, where the trustee of stock settled to the separate the capital. use of a married woman, for her life, improperly transferred it into the joint names of her husband and himself, the husband receiving the dividends until the trustee died, when he sold out the stock without his wife's knowledge, and applied the proceeds to his own use, it was held that though the wife might be presumed to have assented to the husband's actual receipt of the dividends while the stock remained intact, yet no such assent could be presumed after it had been sold, and that she was entitled to recover, as against her husband, and the estate of the deceased trustees, the arrears of dividends which had accrued since that time, as well as to have the trust fund replaced: Dixon v. Dixon, 9 Ch. D. 587. But the Court will in general require evidence that the wife made a serious demand for her income, and not mere trifling complaints at the receipt thereof by her husband: Thrupp v. Har[*581] man, *3 M. & K. 513; Corbally v. Granger, 4 Ir. Ch.

husband

R. 173.

TVhere the consent of the wife to her husband receiving the income of her separate estate could not be presumed, on account of her lunacy, an allowance was made to the husband of a proper sum, for what he had expended in her support: Attorney General v. Parnther, 3 Bro. C. C. 44l. 48

HULME
With regard

V.

TENANT

man may

to the corpus of her separate estate, a married wogive her husband the same interest therein as she can to any other person (Essex v. Atkins, II Ves. 542; Grigby v. Cox, 1 Giff. L26); chattels settled to her Ves. 518; Gardners. Gardner, I. separate use passing by manual delivery (Farington v. Parker,
1 I

R. Eq. 116); and if she authorises money to which she is entitled to her separate use to be paid to him, she cannot recall it: Colon \. Mac. & G. 599, 601, per Lord Cottenham; and see Lynn Rideout, v. Ashton, 1 Russ. & My. 190; Gardnei' v. Gardner, 1 Giff. 12<>. The intention, however, of the wife to make a gift of the corpus of her separate property to her husband must be clear and distinct, hence it lias been held on the mere transfer by a trustee of such property to her husband, no presumption arises that a gift was intended by his wife, but the onus lies on him of proving that it was See Rich v. so intended, otherwise he will be a trustee for her. Cockell, 9 Ves. 869, in which case a trustee of stock bequeathed to the separate use of a married woman, transferred it to her husband. The husband failing to pr we clearly that his wife intended to give him the stock, he was held by Lord Eldon to be a trustee thereof "As at the time the legacy was given," said his Lordship, for her. "it was for the separate use of the wife, and it continued so until transferred to the husband, that transfer could not destroy the Beparate trust, unless clear evidence is produced by the husband, that it was intended, with her assent, to destroy it. If the evidence is short of that, as it is perfectly settled that a husband may in this Court, bo a trustee for the separate use of his wife, he would be precisely in the same situation as to the beneficial interest as the See Therefore he is a trustee." person who made the transfer. also In re Curtis, Hawes v. Curtis, W. N. Feb. 14, 1885, p. 29; lb.,
1

March 14, p. 55. Where a fund in court is settled to the separate use of a married woman, it may be paid to her husband without her consent being taken in Court: Re Crump, 34 Beav. 570; sed vide Wordsworth v. But there must be an affidavit of no settleDayrell, A W. R. 689.
ment: Britten v. Britten, 9 Beav. 143; Anon. 3 Jur. 839. It may be here mentioned that under the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict, c. 41) freehold laud, " or a thing in action, may bo conveyed * by a husband to [ 582 his wife, and by a wife to her husband alone or jointly with (Sect, 50.) another person. And when the husband has received, with the consent of his wife, the capital or savings of her separate property, but it is also shown that he received them for her use, he is liable to an account, Thus. in Darkin v. Darkin, 17 Beav. 578, two promissory notes and a gas She married, share were left to a feme sole for her separate use. but they were not settled, and they were subsequently transferred Since, however, it appeared from into the name of the husband. a book of account kept by the husband, that he had received the * 4 WHITE ON EQUITY. 49
:

* 5S3

IIULME

V.

TENANT.

dividends and interest for the use of the wife, it was held by Sir John Romilly, M. R., that after the husband's death they be"The two promissory longed to his wife as her separate estate. notes and the gas shares," said his Honor, "were her separate property. They were transferred to the husband with the assent of the wife; and if he had continued to receive the dividends, then, according to Caton v. Rideont, it might be inferred that the wife knew of the manner in which they were to be applied, and had agreed that the husband should receive them for his own use and benefit. But this objection is met by the production of the book of account, in the handwriting of the husband, who acknowledges that the dividends and interest were received for the benefit of his wife; and, in 1841, the wife signs the book as having received the dividends herself. In this state of the case it appears to me that I must consider the book evidence. And although the dividends were received by the husband with the sanction of his wife, yet that they were received There is evidence of a trust in writing, and it is therefore for her. unnecessary to resort to the principle laid down in Rich v. Cockell (9 Ves. 369), that the burthen of proof in such a case lies on the husband." See, also, Greeny. Carlill, 4 Ch. D. 882. And the separate estate or the savings of the wife from separate estate, not given by her to the husband, may be followed if invested in his name in real estate. See Davkin v. Darkin, 17 Beav. 578; Roice v. Rowe, 2 De G. & Sm. 294; Barrack v. M'Cidloch, 3 K. & J. 110; Scales v. Baker, 28 Beav. 91; and bee and consider Hughes v. Wells, 9 Hare, 749. A wife may by her acts, without any express gift, show that it was her intention that her husband should have her separate property without liability to account. Where for instance the husband has employed it with the knowledge and consent of his wife, in his business and for the expenditure of his family, a gift * 583 ] thereof from the wife will, in absence of *an agreement to [ the contrary, be presumed: Gardner v. Gardner, 1 Gift'. 126. As to gifts from the husband to the wife, see ante, p. 545. When a married woman advances a sum of money to her husband out of her separate estate by way of loan, she can prove as a creditor against his estate in an administration suit Woodward v. Woodward. 8 De G. Jo. & Sm. 672; 11 W. R. (L. C.) 1007. But now under the Married Women's Property Act, 1882, "any money or other estate of the wife lent or entrusted by her to her husband for the purpose of any trade or business carried on by him, or otherwise, shall be treated as assets of her husband's estate in case of his bankruptcy, under reservation of the wife's claim to a dividend as a creditor for the amount or value of such money or other estate after, but not before, all claims of other creditors of the husband for valnable consideration in money or money's worth have been satisSee In re Genese, Ex parte District Bank, W. N. fied." (Sect. 3.) 1885, Nov. 14, p. 192.
:

50

HDLMB

V.

TENANT.

dence

Formerly husband and wife could not oven in civil cases <^iv<- evifor or against each other. Thus where the evidence of a married woman, a plaintiff in a suit, seeking to make her husband account for part of her separate estate received by him, was tendered in support of her case against her husband, it was held by Sir J.
V.-C, that the Lav/ of Evidence Amendment Act (11 A. 15 99) did not take away the incapacity to give evidence between the husband and wife, and the evidence was rejected. For the same reason, the evidence of the husband, a defendant, against Such bis wife was rejected: Alcock v. Alcock, 5 De G. & Sin. 761. evidence is, however, now admissible under the Evidence Act, lb' &, 17 Vict. c. 83, repealed in part by 32 & 33 Vict. c. 68, s. 1. And now under the Married Women's Property Act, 1884 (47 Vict. c. 14) " in any such criminal proceedings against a husband or a wife as is authorised by the Married Women's Property Act. 1882^ the husband and wife respectively shall be competent and admissible witnesses, and except when defendant, compellable to give evidence.
/,

Vict.

c.

(Sect. 1.)
7. As to the relief afforded against and to a married woman havThe Court can ing separate estate in respect of her contracts, dec] make no personal decree against a married woman, but can effect her separate estate only: Francis v. Wigzell, 1 Madd. 204; Atwood v. Chichester, 3 Q. B. D. 722; Durrani v. Ricketts, 8 Q. B. D. 177. The extent of the relief afforded by equity against the separate estate of a feme covert cannot be more correctly laid down than by Lord Thurlow, in Hulme v. Tenant. "Determined cases," observes his Lordship, " seem to * go thus far, that the gen- [ * 584 eral engagement of the wife shall operate upon her personal property, shall apply to the rents and profits of her real estate, and that her trustees shall be obliged to apply personal estate, and rents and profits when they arise, to the satisfaction of such general engagement; but this Court has not used any direct pi'ocess against the separate estate of the wife; and the manner of coming at the separate property of the wife has been by decree, to bind the trustees as to personal estate, in their hands, or rents and profits, according; to the exigency of justice, or of the engagement of the wife, to be I know of no case where the <j ncarried into execution eral engagement of the wife has been carried to the extent of decreeing that the trustees of her real estate shall make conveyance of that real estate, and by sale, mortgage, or otherwise, raise the money to See, also, satisfy that general engagement on the part of the wife." Stanford v. Marshall, '1 Aik. 68; Murray v. Barlee, 4 Sim. 82; 5. C, 3 My. & !\. 209; Field v. Sowle, 4 Russ. 112; Nantes v. Corrock, 9 Yes. 189; Bullpin v. Clarke, 17 Ves. 365; Jones v. Harris, 9 Yes. 492, 493, 497; Stuart v. Lord Kirkwall, 3 Madd. 387: AyUtt v. Ashton, 1 My. & Or. 105, 112; Francis v. Wigzell. 1 Madd. 258; I Ch. D. 728. v. Hine,b L. R. Ch. App. 274; Dairies v. Jenkins,

51

* 5S5

HULME

V.

TENANT.

It would seem however, upon principle, that where the. separate use extends to the corpus of real estate, it ought to have been held equally liable as the corpus of personal estate to her general engagements. [In an action at law against a married woman living with her husband, the burden is upon the plaintiff to show such acts as will make her liable upon a contract: Harris v. Dole, 5 Bush. 61; Dunbar v. Mever, 43 Miss. 679; Tracv v. Keith, 11 Allen, 214; Kimm v. Weippert, 46 Mo. 532; DeMott v. Muller, 8 Abb. (N. Y.) 335.] Formerly stock settled to the separate use of a feme covert bound, upon the ground, that stock was not liable to execution (Nantes v. Corrock, 9 Ves. 189); but that objection cannot be raised now, as the Judgment Act (1 & 2 Vict. c. 110, s. 11), renders stock liable to

execution.

\Vhere a judgment has been obtained against a married woman life interest in stock settled to her separate estate, the plaintiff may obtain a writ of sequestration against the separate estate (Bryant v. Bull, 10 Ch. D. 153); and if he is unable to do so in consequence of his not being able to find out her address, he will be

having a

entitled to a receiver.

lb.

a debt is payable out of the separate estate of a married woman, being a trust fund, it is not barred by Statute of Limitations, like a personal debt, and may therefore be recovered after the lapse of six years: Norton v. Turvill, 2 P. Wms. 144; Vaughan v. Walker, 6 Ir. Cb. Rep. 471; 8 Ir. Ch. Rep. 458; Hodgson v. Williamson, 15 Ch.

As

D. 87.

seems that in the case of contracts made by a married or after the 1st Jan., 1883, in respect of hersep* 585 ] arate * property, the Statute of Limitations would apply as [ See remarks in Weldon v. Neale, in the case of a feme sole. W. N. 28th June, 1884, p. 153; 32 W. R. 828. As a debt in respect of the general engagement is not a charge upon her separate estate until a judgment has been obtained, rendering it liable, neither she nor her husband or trustees can be restrained from parting with such estate before a decree has been obtained (see Robinson v. Pickering, 16 Ch. D. 661: overruling the judgment of Malins, V. C, reported 16 Ch. D. 371); and process against the separate property of a married woman, may, as in the case of an execution at law, be defeated by a bona fide assignment of her property to a purchaser or mortgagee: Johnson v. Gallagher,

But

it

woman on

G. F. & J. 520, per Turner, L. J. there is a clause against anticipation, attached to a trust for the separate use of a married woman, if she incurs a debt, as, for instance, by giving a promissory note, the creditor will not have a right to be paid, save out of the arrears of interest actually due on the separate estate, when the debt was contracted: Fitzgibbon v. And an order for payment will Blake, 3 Ir. Ch. Rep. 328, 330. not be granted on a judgment summons against a married woman

De

Where

52

uulme

y.

tenant!

586

only having property Bettled to ber separate use without power of anticipation: Meager v. Pellew, \V. N. 1885, April 25, p. 82. And where arrears arising from a fund settled to the separate use of a married woman with a restraint against anticipation, are paid to her, and invested by her trustees, withoul any restraint upon an ticipatioh, she can deal therewith as if settled to her separate use: Devitt v. Fausett, 7 L. R. Ir. 511: 9 L. 11. Ir. 84. In an action against a married woman in respect of her separate property, she could not appear and defend separately from her husband without obtaining an order to appear and answer separately as a* defendant (Jackson v. Haworth, 1 S. A: S. 161; Macbryde v. Eykyn, \V. N. 18(37, p. 306; Noel v. Noel, 13 Ch. D. 510; Rules of Court 1875, order xvi., rule 8); for this purpose she should obtain a special order (Noel v. Noel, 13 Ch. D. 510) for leave, a petition If however she was in receipt of an of course being irregular: lb. ample income to her separate use, she would not be required to give security for costs, on obtaining leave to defend separately: If she were out of the jurisdiction of the Court, she might lb. with leave thereof be served with process : Copperthwaite v. Tuite,

Her declarations, moreover may be made in 13 Ir. Eq. Rep. 68. evidence against her (Peacock v. Monk, 2 Ves. 193), and where she answered separately she would be liable to an attachment for want of answer (Taylor v. Taylor, 12 Beav. 271; Home v. Patrick, 30 Beav. 405; Graham v. Fitch, 2 De G. & Sm. 246); so likewise, for disobedience to the order of the Court in a suit respecting her separate estate (Ottway v. Wing, 12 Sim. 90) a sequestration of her separate estate might be * ordered: Keough v. Cath- [ *586 ] cart, 11 Ir. Eq. Rep. 280. Formerly it was necessary to make the trustees of a married woman having separate property parties to a suit to render it liable {Francis x. Wigzell, 1 Madd. 262); and the death of her busband (whereby her separate use ceased) either before the commencement of the action (Heat ley v. Thomas, 15 Ves. 596, Johnson v. Gallagher, 3 De G. F & J. 513; sed vide Kenge v. Delavall, 1 Yern. 326) or afterwards (Field v. Soivle, 4 Russ. 112) would not defeat the But where the husband was made party merely for the action. purpose of trying whether that which was said to be separate estate was separate estate, his costs on payment by the plaintiff might be added to his own and paid out of his separate estate: Collet t v. Dickenson, 11 Ch. D. 687; London & Provincial Bank v. Bogle, 1
Ch. D. 773. Formerly, where a married

woman entitled to separate estate entered into an obligation as a covenant, a judgment thereon would only bind separate estate to which she was entitled when she contracted her liability, but would not upon her becoming afterwards discovert bind any separate estate to which, upon entering into the covenant, she was entitled with a restraint upon alienation, although upon her becoming discovert the restraint on alienation ceased:
53

* 587

HCLME

V.

TENANT.

Pike v. Fitzgibbon, 17 Cb. D. 454, reversing S. C, 14 Ch. D. 837; and overruling Flower v. Buller, 15 Ch. D. G65. Upon the same principle it has been held that a married woman could not, during her husband's life, bind her interest in a policy on his life, the proceeds of which were settled upon her for her See King v. Lucas, 23 Ch. D. 712; there by separate use for life. a post nuptial settlement made in pursuance of ante-nuptial articles, certain policies of insurance on the life of the husband were assigned to trustees irpon trust to receive the money and pay the income to the wife during her life for her separate use, independently There was no reof any future husband whom she might marry. During the life of her first husband, the straint upon anticipation. wife made promissory notes in favour of the plaintiff, and the plaintiff (the first husband being alive) brought an action claiming a charge on the policies. It was held by the Court of Appeal, reversing the decision of Kay, J., that the trust for the separate use did not arise till after the death of the husband, and that as the contracts of a married woman could only be enforced against propertv which formed part of her separate estate at the date of the " In Sturgis v. Corp, 13 contract, the action was not maintainable. Ves. 190," said Cotton, L. J., " property was settled upon [*587] trust for * Ann Sturgis for life, and after her death in trust for Martha Sturgis for her separate use, and it was held that Martha Sturgis could dispose of her reversionary interest during the life of Ann Sturgis. In that case there was existing property settled with reference to an existing coverture; and the Court arrived at the conclusion, that the lady could dispose of her interest even though she was not in the actual enjoyment of the But when I look at the words of the settlement in the property.
case before us, I am of opinion that the trust for a separate use apSee also In re Shakespear, plies to a future coverture only." Deakin v. Lakin, 30 Ch. D. 169, 171. So where judgment having been signed in an action against the defendants, a man and his wife, it was sought to attach in execution moneys in the hands of trustees forming part of the income of trust funds, payable to the wife to her separate use, without power of anticipation, but which had accrued since the judgment, and the action being for the amount of a promissory note made by the husband and wife jointly during the coverture, it was held by the Queen's Bench Division, that the moneys in question could not be "It is admitted," said Watkins Williams, J. attached in execution. "that at the time of giving the promissory note, the female defendant could not legally charge the income of the trust fund to accrue thereafter; but to allow this sum of money to be attached, would, in substance, be allowing her to anticipate: Chapman v. Biggs, 11 Q. B. D. 27; and see and consider Nysli v. Pease, 47 L.
J. (Q.

B.) 766.
Act, 1882, a mar-

But now, by the Married Women's Property

54

HULMB

V.

TENANT.

ried woman may bind all separate prop( rty which she may there (Sect. 1, subs. 4) See post, pp. 5$8, 589; sed vido after acquire. hi re Shakespear, Deakin v. Myles v. Burton, 14 L. R. Ir. 258. Lakin, 30 Ch. D. 169, 171. The law ou this subject of the liability of a married woman in respect of her separate property, and her right and liability to sue and be sued in respect of contracts or torts, is thus laid down in "A the 1st section of the Married Women's Property Act, 1882: married woman shall be capable of entering into and rendering

herself liable in respect of and to the extent of her separate pro12; perty on any contract, [See Butler v. Robertson, 11 Texas,

Guest, 46 Mo. 339; Westgate v. Monroe, 100 Mass. 227; Marshall v. Miller, 3 Met. (Ky.) 333; McCorwick v. Holbrook, 22 Iowa. 487,] and of suing and being -sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defendant, or be made a party to any action or other legal proceeding brought by or taken against her; and any damages or costs recovered by her in any such action or proceeding shall be her separate property and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and Under this sub-section a married (Subs. 2.) not otherwise." woman can sue as a feme sole, and may sue without her husband or a next friend, and cannot be ordered to give security for the costs of the action, even although she have at the time of action no separate estate, and there be nothing upon which, if she fails, the defendant can issue available execution: In re Isaac, Jacob v. Isaac, 30 Ch. D. 418. *Under this sub-section of sect. 1 of the Act, a married [ * 588 ] woman may sue alone for a tort committed before the Act See Weldon v. Winslow, 13 Q. B. D. 784; came into operation Severance v. Civil Service Supply Association, 48 L. T. (N. S.) 485; James v. Barraud, 49 L. T. (N. S.) 300, sed vide Weldon v. Even though the cause of Riviere, W. N. June 28, 1884, p. 154. action accrued more than four years before the suit, provided the action be brought within four years after the coming into operation of that statute, for she thereby has become 'discovert' within the meaning of 21 Jac. 1, c. 16, s. 7: Lowe v. Fqjc, 15 Q. B. D. 667. It seems that under this section, a married woman can make a contract binding only to the extent of her separate property: Perks v. Milrea, W. N. March 8, 1884, p. 64. But her power of suing and being sued is not so limited; she may sue and be sued "in all respects as if she were a feme sole." A feme sole can sue to judgment, and may have judgment signed ao-ainst her. Again, damages and costs mav be recovered against Recovery is the techni a married woman, under the sub-section. Under an order of the cal word for a common law judgment, Court of Chancery nothing is recovered until something further has

Tucker

v.

55

*589
been done.

HULME

V.

TENANT.

Judgment in default, or under Order XIV., may be signed against a married woman, but execution only should issue Perks v. Mylrea, W. N. March 8, against ber separate estate: 1884, p. 64, per Field, J. see also Gunston v. Maynard, L. T. Journal, June 1888, p. 102, sed vide Moore v. Mulligan, W. N., February 9th, 1884, p. 34. And where a judgment was given against a married woman in default, a receiver was granted in respect of separate property, which the defendant was not restrained from anticipating: Perks v. Mylrea, W. N. March 8, 1884. Judgment under Order XVI., rule 52, may, since the Married "Women's Property Act, 1882, be ordered against a married woman third party, declaring her separate estate chargeable even in respect of a liability created before the Act: see Gloucestershire Banking Co., Limited, v. Phillips, Creagh, Third Party, 12 Q. B. D. 533. And in a recent case, it has been laid down that an order giving leave to enter final judgment against a married woman in respect of her separate estate, by virtue of the Married "Women's Property Act, 1882, should state that execution is to be limited to such separate estate as the defendant is not restrained from anticipating, unless such restraint exists under any settlement or agreement for a settlement of her own property, made or entered into by herself; A creditor who has obtained Bursill v. Tanner, 13 Q. B. D. 691. a judgment against a married woman has a right to the production of her marriage settlement as against the trustees, in order to ascertain whether she has any separate property thereunder, and the solicitor to the trustees is bound to state their names, and to produce the settlement if in his possession; Bursel v. Tanner, 16 Q. B. D. 1. Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her (Subs. 3). separate property, unless the contrary be shown. Every contract entered into by a married woman with * 589 ] respect to and to bind her separate property * shall bind [ not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate (Subs. 4.) property which she may thereafter acquire. The 3rd and 4th subsections of the Married "Women's Property Act, 1882, have not a retrospective operation, so as to include contracts entered into by a married woman, before the date of the commencement of the Act: Conolan v. Leyland, 27 Ch. D. 632. According to the true construction of sub-s. 4, a contract which is to bind her separate estate must be entered into at a time when a married woman has existing separate property. If she has such property her contract will bind it. If she afterwards commits a breach of the contract, and proceedings are taken against her for breach of the contract, any separate property which she has acquired since the date of the contract, and which she has at the time judgment is re;

56

HULMB

V.

TENANT.

* 590

But corded against her, will be liable for the breach of contract. the Act does Dot enable her, by means of a contract entered into al a time when she lias no existing separate property, to bind any possible contingent separate property: In re Shakesp'ear, Deakin v. See, also, Turnball v. Lakin, 30 Ch. D. 169, 171. per Pearson, J.
Forman, W. N. 1885, June 20, p. L26. But an order made after the commencement of the Act, by consent in an action by a creditor against a married woman in respect of her contract before the Act, by which order all questions under the contract were referred to an arbitrator, and the parties bound them selves to abide by, obey, and keep the award, is an agreement
by the married
subs.
3,

woman

and therefore by

after the commencement of the Act, within subs. 4. any separate estate which she had

at or after the date of such agreement, is liable to pay the found by the award to be due from her under the contract:
v.

amount
Conolan
122.

Leyland, 27 Ch. D. 632;

Wife's ante-nuptial debts

Brown
and

v.

Morgan, 12 L. R.

Ir.

liabilities.]

At common

law, the

husband, during coverture, was liable to be sued jointly with the wife in respect of debts contracted by the wife dum sola, because at common law he takes all her property {Adair v. Shaw, IS. & L. 263); and it has been held where the husband and wife were taken in execution, if there was no collusion between the husband and the plaintiff, the wife ought to be detained if she had separate estate but if she had no separate estate, she would ordinarily be discharged: Sparkes v. Bell, 8 B. & C. 1 Newton v. Roe, 7 Man. & Gr. 329 Evans v. Chester, 2 M. & W. 847; Evans v. Morgan, 2 Cr. & J. 453 Larkin v. Marshall, 4 ExcL. 800 Edwards v. Martyn, 17 Q. Ivens v. Butler, 3 Jur. N. S. 394 26 L. J. N. S. (Q. B. 693, 700
; ;
:

B.) 145.

But if no action were brought during the coverture and the wife survived, she remained just as liable for the debt as she Was before Chubb v. Stretch, 9 L. R. Eq. 559 per Sir JR. Mai'in s, marriage V.-C. But if an action were brought and judgment recovered agaiDst the husband and wife during the coverture, and the husband became bankrupt and obtained his discharge, the liability of the husband and the wife for the wife's debt was gone at law (Lockwood v. Sailer, 5 B. & Ad. 303; Miles v. Williams, 1 P. Wins. 249, 257), the wife's separate estate still remained liable in equity to satisfy her debts, (see Biscoe v. Kennedy, 1 Bro. C. C. 17 n., ante, p. 523 n. Chubb v. Stretch, 9 L. R. Eq. 560), and her husband * as [ * 590
:

her administrator was subject to all her ante-nuptial liabilities to the extent of her property in his hands in that capacity Adair v. Shaw, 1 Sch. & Lef. 243, 261 see 2 Seton Decrees, 688, 4th ed. Where a woman continued to carry on trade in her maiden name after her marriage, and incurred liability by accepting a bill of exchange in respect of such business in thjat name, without any
.

57

* 591

IIULME

V.

TENANT.

authority from the husband to pledge his credit, it was held that he was not liable on a debtor's summons in respect of the debt, especially as he had given notice some years previously to the hummoniug debtor, that he had nothing to do with his wife's business: Ex parte .Shepherd, In re Shepherd, 10 Ch. D. 573. By the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93), it was enacted that a husband married after the Act came into operation (9th August, 1870) is not liable for the debts of his wife contracted before marriage, and the wife is liable to be sued for, and any property belonging to her for her separate use is liable to satisfy such debts, as if she had continued unmarried. (Sect. 12.) See Gordon v. Moore, 9 Ir. Rep. C. L. 190 Williams v. Mercier, 9 Q. affirmed Dom. Proc. W. N. Nov. 15, 1881, p. 201. B. D. 337 It has been held, moreover, that the 12th section extends to property settled to the separate use of a married woman, without power Where, therefore, after the passing of that Act, of anticipation. and on the same day on which a marriage took place, but subsequently thereto, judgment was entered up against the wife for a debt
; ;

incurred previously to the marriage, and the judgment creditors subsequently obtained a charging-order on the wife's interest in a fund in court, to the income of which the wife was entitled for her separate use, without power of anticipation, it was held that the charging-order constituted a valid incumbrance on the fund: Sanger v. Sanger, 11 L. R. Eq. 470; and see London and Provincial Bank v. Bogle, 7 Ch. D. 773. The legislature, however, very justly, not considering it right that the property which a woman had at the time of her marriage should pass to her husband, and that he should not be liable for her debts contracted before marriage, by 37 & 38 Vict. c. 50 (passed 30th July, 1874), entitled " An Act to amend the Married Women's Property Act, 1870," and which does not extend to Scotland, enacted that "So much of the Married Women's Property Act, 1870, as enacts that a husband shall not be liable for the debts of his wife contracted before marriage is repealed so far as respects marriages * 591 ] which shall take place after the passing of this * Act, and [

husband and wife married after the passing of this Act any such debt." (Sect. 3.) The husband should, in such action, and in any action brought for damages sustained by reason of any tort committed by the wife before marriage, or by reason of the breach of any contract made by the wife before marriage, be liable for the debt or damages respectively to the extent only of the assets hereinafter specified; and in addition to any other plea or pleas may plead that he was not liable to pay the debt or damages in respect of any such assets as hereinafter specified; or confessing his liability to some amount, that he was not liable beyond what he so confessed; and if no such plea was pleaded the husband should be deemed to have confessed
a

may be

jointly sued for

his liability so far as asets were concerned.

(Sect. 2.

58

IIULME
If
it

V.

TENANT.

* 592

was not found

in

such action that the husband was liable in

respect of any such assets, he should have judgment for liis costs of defence, whatever the result of the action might be against the
wife.
(Sect. 3.)

husband and wife were sued jointly, if by confession or appeared that the husband was liable for the debt or damages recovered, or any pari thereof, the judgment to the extent of the amount for which the husband is liable, shall be a joint judgment against the husband and wife; and as to the residue, if any, of such debt or damages, the judgment shall be a separate judgment against the wife. (Sect. 4.) The assets in respect of and to the extent of which the husband shall in any such action be liable, are as follows:
a

When

otherwise

it

(1)

The value
shall

of the personal estate in possession of the wife,

which
(2)

have vested in the husband:

band

of the choses in action of the wife which the hushave reduced into possession, or which with reasonable diligence he might have reduced into possession: (3) The value of the chattels real of the wife which shall have
shall

The value

vested in the husband and the wife: (4) The value of the rents and profits of the real estate of the wife which the husband shall have received, or with reasonable diligence might have received: (5) The value of the husband's estate or interest in any property, real or personal, which the wife in contemplation of her marriage with him shall have transferred to him, or to any other person: (6) The value of any property, real or personal, which the wife in contemplation of her marriage with the husband shall, with his consent, have transferred to any person with the view of defeating or delaying her existing creditors. * And there is a proviso that where the husband after [* 592 ] marriage pays any debt of his wife, or has a judgment bona fide recovered against him in any such action as is in this Act mentioned, then to the extent of such payment or judgment the husband shall not in any subsequent action be liable. (Sect. 5.) See Turner v. Caulfield, 7 L. R. Ir. 347. In an action against a husband and wife, married after the Married Women's Property Act, 1874 (37 & 38 Vict. c. 50) for the recovery of a debt of the wife contracted before marriage, it was held not necessary that the statement of claim should allege that the husband had received assets of the wife: it was sufficient that it should simply allege that the husband was liable for the debt, leaving it to the husband to exercise his option of pleading non-liability under the provisions of the Act: Matthews v. Whittle, 13 Ch. D. 811. A woman married after the Act of 1874 came into operation, who had incurred liabilities before her marriage, could not take her property out of the power of her creditors by settliug it to her sepaSee London < Prorate use without power of anticipation.

59

* 593

HULME

V.

TENANT.

vincial Bcutk v. Bogle, 7 Ch. D. 773; there in an action against a married woman and her husband for a debt contracted by the wife previously to her marriage, judgment was entered against the wife for principal, interest, and costs, but in favour of the husband with co^ts, under the provisions of the Married Women's Property Act, 1S70, and the Amendment Act, 1874. The wife's property having been settled, on her marriage, for her separate use without power of anticipation, the plaintiffs commenced an action in the Chancery Division, for the purpose of enforcing the judgment obtained by them against the wife, and further to be allowed to add to this the costs It was held by Bacon, V.-C, that, they had to pay the husband. notwithstanding the restraint upon anticipation, the plaintiffs were entitled to recover against the separate estate of the wife the amount of their judgment debt and costs, as well as the costs paid to the husband, which might be added to their original debt. By the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), the liability of the husband and wife, for her ante-nuptial "A woman debts, contracts and torts is provided for as follows: after her marriage shall continue to be liable in respect and to the extent of her separate property for all debts contracted, and all coutracts entered into or wrongs committed by her before her marriage including any sums for which she may be liable as a contributory, either before or after she has been placed on the list of contributories, under and by virtue of the Acts relating to joint* 593 ] * stock companies; and she may be sued for any such debt [ and for any liability in damages or otherwise under any such contract, or in respect of any such wrong; and all sums recovered against her in respect thereof, or for any costs relating thereto, shall be payable out of her separate property; and as between her and her husband, unless there be any contract between them to the contrary, her separate property shall be deemed to be primarily liable for all such debts, contracts, or wrongs, and for all damages or costs recovered in respect thereof: Provided always, that nothing in this Act shall operate to increase or diminish the liability of any woman married before the commencement of this Act for any such debt, contract, or wrong, as aforesaid, except as to any separate property to which she may become entitled by virtue of this Act, and to which she would not have been entitled for her separate use under the Acts hereby repealed or otherwise, if this

Act had not passed."

(Sect. 13.)

for his wife's debts contracted before marri"A husband shall be liable for the debts of his wife contracted, and for all contracts entered into and wrongs committed by her, before marriage, including any liabilities to which she may be so subject under the Acts relating to joint stock companies as aforesaid, to the extent of all property whatsoever belonging to his wife which he shall have acquired or become entitled to
to be liable

Husband
to

age

a certain

extent.]

60

HULME

V.

TENANT.

* 594

from or through his wife, after deducting therefrom any payments made by him, and any sums for which judgment may have been bona iide recovered against him in any proceeding at law, in respect of any such debts, contracts, or wrongs for or in respect of which his wife was liable before her marriage as aforesaid, but lie shall not be liable for the same any further or otherwise; and any court in which a husband shall be sued for any such debt shall have power to direct any inquiry or proceedings which itmay think proper for the purpose of ascertaining the nature, amount, or value of such Provided always, that nothing in this Act contained shall property: operate to increase or diminish the liability of any husband married before the commencement of this Act for or in respect of any such
debt or other liability of his wife as aforesaid."
Suits for antenuptial liabilities.]
(Sect. 14.)

A husband and wife may be any such debt or other liability (whether by contract or for any wrong) contracted or incurred by the wife before marriage as aforesaid, if the plaintiff in the action shall seek to establish his claim, either wholly or in part, against both of *them; and if in any such action, or in any action [ * 594 brought in respect of any such debt or liability against the husband alone, it is not found that the husband is liable in respect of any property of the wife so acquired by him or to which he shall have become so entitled as aforesaid, he shall have judgment for his costs of defence, whatever may be the result of the action against, the wife if jointly sued with him; and in any such action against husband and wife jointly, if it appears that the husband is liable for the debt or damages recovered, or any part thereof, the judgment to thp extent of the amount for which the husband is liable shall be a joint judgment against the husband personally and against the wife as to her separate property; and as to the residue, if any. of such debt and damages, the judgment shall be a separate judgment against the wife as to her separate property only.
jointly sued in respect of
]

(Sect, 15.)

A wife doing any any property of her husband, which, if done by the husband with respect to property of the wife, would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husAct of
u-ife

liable to criminal proceedings.]

act with respect to

band. (Sect. 16.) Questions moreover, between husband and wife as to property to be decided in a summary way, sect, 17; and see sect. 9 of the Married Women's Property Act, 1870, as to the mode in which 'similar questions were to be settled under that Act.

ProLiabilitt/ of a married woman's property after her death. bate. Administration.] A married woman having personal estate

61

* 595

HULME

V.

TENANT.

settled to her separate use may appoint executors and her will is entitled to probate: Brownrigg v. Pike, 7 P. D. 61. [The statutes of the several States have various provisions which enable a married woman to make a will of her separate property, but in the absence of a will by the wife, the husband takes all her personal property at her decease as at common law, and the use of her real Rawson's v. Nichols. 22 estate for life, if there is issue born alive: N. Y. 110; Wilkinson v. Wright, 6 B. Mon. 576; or some States where there is issue or not, and where there is no issue, a portion of her real estate in fee, Mass. Statutes.]

And upon her death, if her executors have died in her lifetime, administration cum testamento annexo will be granted to the nominees of the residuary legatees and not to her husband. In the Goods of Pine, 1 L. R. Prob. & D. 388; and see In the Goods of Fraser, [See Williams on Executors, 46.] 2 L. R. Prob. & D. 183.
Her
creditors also

may commence an

action for

payment

of their

debts out of her separate estate (Owens v. _ Dickenson, Cr. & Ph. 48; Gregory v. Lockyer, 6 Madd. 90); and even before Hinde Palmer's Act, (32 & 33 Vict. c. 46,) her specialty debts, as debts by bond, would not have priority over her simple contract debts, but would both be paid pari passu: (Anon., 18 Ves. 258; Owens v. Dickenson, Cr. & Ph. 53; Johnson v. Gallagher, 3 Do G. F. & Jo. 520; but see Shattock v. Shattock, 2 L. R. Eq. 182, 35 Beav. 489). The result is the same as to the earnings of married * 595 ] women *made separate estate under the Married Women's [ Property Act, 1870 (33 & 34 Vict. c. 93). Hence it has been held that such earnings of a married woman being equitable assets, her executor has no right to retain in full his own debt thereout (In re Poolers Estate, 6 Ch. D. 730), and it is at least doubtful whether the separate estate of a married woman has been made legal assets by the Act of 1882, see ib. s. 23. In other respects, if she has left a will, her estate will be administered according to the ordinary rules in creditor's suits: specific legacies being paid before general legacies: Owens v. Dickenson. Cr. & Ph. 56. And all arrears of income due to her at the time of her death will fall into the general residue: Tatham v. Drummond, 2 H. & M. 262. The executors of a married woman, only take such part of her separate estate as she has by will disposed of, not taking the rest jure representations, the result is that her undisposed of separate estate goes to her husband in the case of chattels in possession absolutely, in the case of choses in action upon his taking out letters of administration: Tugman v. Hopkins, 4 Mann. & Gr. 389. When a married woman having power of appointment over stock and furniture, settled subject thereto to her separate use, she cannot by an exercise of her power during coverture pass the dividends of the stock received, after her husband's death (Mayd v. Field, 3 Ch. D. 587), or railway stock arising from the investment of the proceeds

62


IIULME
V.

TENANT.

* 596

But Buch (lb.) of the sale of the furniture, sold after his death. dividends and railway stock not being separate property will go to her next-of-kin (lb.) It may be here mentioned that for the purposes of the Married Women's Property Act, 1882, the legal personal representative of any married woman shall in respect of her separate estate have the same rights and liabilities and be subject to the same jurisdiction (Sect. 23.) as she would be if she were living. [In all proceedings in equity, in relation to the wife's separate estate, the husband ought to be made a defendant, especially if any of his acts are in question: Clarkson v. Be Peyster, 3 Paige, 336; Stuart v. Kissam, 2 Barb. 493; Wilson v. Wilson, 6 Ired. Eq.
230.]

Although ordinarily the husband is liable for the funeral expenses of the wife, even if she have separate estate (Bertie x. Lord Chesterfield, 9 Mod. 31), she may by a charge in her will relieve her husband out of the separate estate, and, in effect, make a present to him of what her funeral expenses would have cost him: Willeter x. Dobie,
2 K. & J. 647, 649; see Gregory v. Lockyer, 6 Madd. 90; Jenkins v. Tucker, 1 H. Black. 90. [If a wife dies while her husband is out of the country and does not, nor cannot bury her, any person in whose custody the dead body may be, or any other person, may give it decent burial according to the estate and condition of the deceased, and enforce payment of the person who is primarily obligated, as in this case, the husband: Steger v. Frizzell, 2 Tenn. Ch. 369; Clayton v. Somers, 12 C. E. Green, 230; Samuel v. Thomas, 51 Wis. 549; Meyer v. Cole, 12 Johns. 349; Tugwell v. Heymen, 3 Camp. 298; Luscomby. Ballard, 5 Gray, 403; Hapgood v. Houghton, 10 Pick. 154.]

Devolution of separate estate undisposed of by married woman. ] of separate personal estate of a feme covert (unaffected by legislation) not required to meet her debts and engagements unless settled (Re * Rosenthal's Settlement, 6 [ * 596 ] W. R. (V.-C. W.) 139), belonged to her husband jure See Molony v. Kennedy, 10 Sim. 254, where mariti, if in possession. Sir L. Shadtvell, V.-C, held that cash and bank notes arising from property settled to the separate use of a married woman belonged on her death to her husband in his marital right: Johnstone v. Lnnrh, 15 Sim. 308; Tugman v. Hopkins, 4 Man. & Gr. 3S9; Drury v. Scott, 4 Y. & C. 264; Bird v. Peagram, 13 C. B. 639; Askew v. Rooth, 17 L R. Eq. 426. [If a wife dies without disposing of her separate estate, the husband will take her equitable personal estate, in the same manner as he takes her legal personal estate: See Brown v. Alden, 14 B. Mon. 141 Rogers v. White, 1 Sneed, 60; Brown y. Brown, 6 Humph. 127; McKennan v. Phillips, 6 Wharton, 576.] So the husband, jure mariti, became entitled on the death of his

The undisposed

63

* 597

HULME

V.

TENANT.

wife to her equitable interest in chattels settled to her separate use: Archer v. Lavender, 9 I. R. Eq. 220. And choses in action, as monies in the funds, settled to the separate use of a married woman on her death, belonged to her husband on taking out administration to her: Proxidlexj v. Fielder, 2 My. & K. 57; Musters v. Wright, 2 De G. & Sm. 777, subject, as before mentioned, to her ante-nuptial liabilities and debts, ante, p. 594. Where however a married woman, living separate from her husband, after obtaining a protection order dies intestate, her property And in a recent case, will go as if her husband were then dead. where a woman in that position left a minor son her surviving, the Court made a grant of administration of her effects to a guardian elected by the son for his use and benefit without citing the father, the guardian however finding justifying securities to meet the contingency of the son dying during his minority, in which event the father would become entitled to the property: In the Goods of Stephenson, 1 L. R. P. & D. 287. The question has been raised, whether, in the case of a husband married after J 882, or of a husband married before 1883 in respect of property of his wife acquired after 1882, he will, in the absence of any disposition of his wife by will or act inter vivos, become absolutely entitled in his marital right to his wife's personal estate on It has been laid down recently taking out letters of administration. in a work of considerable authority that inasmuch as the wife now takes as a feme sole and is a separate individual, the husband takes nothing in his marital right during the coverture, and that it seems impossible to say that he can have any marital right after the coverSee Conveyancing and Married Women's Property ture is ended. Act, 3rd Ed., p. 8, by Messrs. Wolstenholme and Turner, in referring to In the Goods of Worman., 1 Swab. & T. 513, In the Goods of Stephenson, 1 L. R. P. & D. 287, in which it was held upon the construction of 20 & 21 Vict. C. 85, s. 2, that under a protecting order, the earnings and property of a married woman should be* 597] long to her " as if she *were a feme sole " went, as against [ the surviving husband, to the nest of kin who were entitled to letters of administration limited to property acquired after desertion.

of the act to

cases were rightly decided, upon the construction which they were applicable, is it seems not doubtful, but it is submitted that the marital right of the husband to the personal property of his wife, under the Married Women's Property Act, 1882, will only be affected so far as it is necessary to give her a separate use during her life and a power in all cases to dispose thereof by will or act intervivos, and that subject thereto it belongs to the husband either by survivorship or upon taking out administration to her.

Whether those

The

liability of the
is

debts of his wife,

husband as administrator to the ante-nuptial not affected by the Married Women's Property

64

HULME
Acts,

V TENANT.

* 59b'

1870 and 1874, and by the Married Women's Properly Act, L882, the legal persona] representative of a married woman is expressly rendered liable as she herself was. (Sect, 'S-i; see ante, p.
595.

The undisposed of real estate of a married 'woman settled to her separate use of which she is seised in fee descends to her heir, subject, however, to the right of her husband as tenant by the curtesy (Roberts v. Dixtvell, Atk. 607; and see Pitt v. Jackson, 2 Bro. ('. C. 51; Morgan v. Morgan, 5 Bladd. 408. Follett v. Tyrer, 14 Sim. 125; Harris v. Mott, t Beav. 169; Appleton v. Rowley, 8 L. li. Eq. 139, overruling on this point, Hearle v. Greenbank, 3 Atk. 715, and Moore v. Webster, 3 L. R. Eq. 267), and an estate tail of the wife subject also to the husband's tenancy by the curtesy will descend to the heir in tail: Cooper v. Maedonald, 7 Ch. D. 288. If however the wife disposes of an estate in fee settled to her separate use, either by deed or will, the husband's estate by the curtesy will be thereby defeated: Cooper v. Maedonald, 7 Ch. D.
1
I

288.

appears to be the opinion of two learned authors that the mariright of the husband to curtesy of real estate, being the separate property of the wife, is affected by the Married Women's Property Act, 1882, upon the ground that the wife under that Act takes " as a feme sole and is a separate individual," and that if the estate by the curtesy still exists it is wholly changed in its nature;'' [Although a husband has a right to curtesy, or a life estate in his wife's real estate, yet he cannot convey the estate or interest during her life, without her consent, so as to give possession to the purchaser, nor can his creditors seize it on execution, nor can he in any way
It
tal
:
'

encumber

it: Coleman v. Satterfield, 2 Head. 259; Jenny y. Grey, 5 Ohio, 45; Selph v. Howland, 23 Miss. 264; Washburn v. Burns. 34 N. J. 18; Briggs v. Titus, 7 R. I. 441; Pell v. Cole, 2 Met. (Ky.) 252.] see the Conveyancing Acts and Married Women's Propertv Act, 1882, 3rd Ed., by Wolstenholme and Turner, pp. 8, 9. It is, however, suggtsted, that it could never have been the intention of the legislature by mere implication or otherwise than by clear and express words, to abolish the estate by curtesy which the husband has been held entitled to out of real property settled to * her separate use. Nor, it is submitted, is the estate in [ * 598

any way changed from what it was before the passing of the Act of 1882, and which is so well described by Sir G. Jessel. M. R., in Cooper v. Maedonald, 7 Ch. D. 296. The separate use of a

woman attached to real property, before, or her holding it as a feme sole after, the Act of 1882, in effect appear to be convert] ble terms and may have full effect given to them by allowing the
married

wife to enjoy it during her life, or to dispose of it by will or act inter vivos, but there is no reason why upon the construction of the Act, when she dies without making any disposition thereof, her hus band's marital right as tenant by the curtesy should be effected any
* 5

WHITE ON EQUITY.

65

* 599

HULME

V.

TENANT.

further than it was held to be so in cases where the separate use was attached to the wife's real estate before the passing of the Married Women's Property Act of 1882. And with regard to the nature of ,the estate being changed, it seems that there can be no objection to it on the ground of novelty, as it is precisely the same as that to which Sir G. Jessel, M.R., in Cooper v. Macdonald, 7 Ch. D. 296, saw no objection; see also, In re Jakeman s Trusts, 23 Ch. D. 344; Settled Land Act, 1884, s. 8. Lands also purchased by a married woman out of the savings of her separate estate will, upon her death without having disposed of the same, descend upon her heir-at-law or customary heir according to the tenure of the lands respectivelv: Stewart v. Blakeway, 6 L. R. Eq. 479, 4 L. R. Ch. App. 603.
,

Savings and arrears of separate estate.} It may here be nomarried woman arising from the income of property settled to her separate use, are prima facie her separate property, and she has the same power over them as over property settled to her separate use: {Gore v. Knight, 2 Vern. 535; Gold v. Rutland, 1 Eq. Ca. Ab. 346, pi. 18; Fettiplace v. Gorges, 1 Ves. jun. 46; 3 Bro. C. C. 8; Cecil v. Jnxon, 1 Atk. 278; Muggeridge v. Stanton, 1 De G. F. & Jo. 107; Askew v. Rooth, 17 L. Eq. 426; Fitzgibbon v. Pike, 6 L. R. Ir. 487. ) [The savings and accumulations by a married woman out of her separate estate are governed by the same rules as the separate estate: Rush v. Vought, 55 Pa. St. 437; Miller v. Williams, 5 Md. 226; Young v. Jones, 9 Humph. 551; Gentry v. McReynolds, 12 Mo. 533; Hoot v. Sorrell, 11 Ala. 386; Kee v. Vasser, 2 Ired. Eq. 553.] A ad the savings arising from her separate property will be liable for her contracts in the same manner as property settled to her sepThus, in Butler v. Cumpston, 7 L. R. Eq. 16, one of two arate u&e. trustees of a marriage settlement, under which the wife took a separate estate for life, without power of anticipation, having shares in a bank vested in him upon the trusts of the settlement, obtained an allotment of new shares at the request of the wife, and upon the faith of her representations that the purchase money should be paid out of certain savings of her separate estate. It was held [* 599 ] by Sir R. * Malins, V.-C, that the savings of the wife's separate estate were liable to indemnify the trustee against all calls and liabilities incurred on her behalf in respect of the
8.

ticed, that savings of a

shares.

The savings arising from property in the hands of trustees, settled to the separate use of a married woman without power of anticipation, will not, it seems, be liable to the restraint against anticipation, if she simply transferred such savings to the trustees without showing any intention that such savings were to be held
upon the same trusts as the funds from which they were derived: Butler v. Cumpston, 7 L. R. Eq. 16.

HULME

V.

TENANT.

<)<()

So if a married woman lays out the savings of goods settled to her separate use in the purchase of property it will prima facie be L. It. Ir. V T. long to her to her separate use: I'ilzgibbony. Pike, from his husband living that separate held where a has been It wife remits money to her for her support and maintenance, on separation, it will be considered as her separate estate, and the husband cannot in equity file a bill against his wife, to recover the savings: Brooke v. Brooke, 25 Beav, 342; and see Messenger v. Clarke, 5 Exch. 388. Savings, however, of the wife out of money given to her by her husband for household purposes, dress, or the like, and applied by her in making investments in her own name will belong to her husband: Barrack v. M'Culloch, 3 K. & J. 114; Meics v. Mews, 15 Beav. 529. But it has been held that the savings out of an allowance paid to the wife of a lunatic living apart from her husband for her separate maintenance, under an order in lunacy, are her separate property, although the order does not expressly state that the allowance is for her separate use: In the Goods of Tharp, 3 P. D. 70. So likewise the investments of a married woman, as for instance in lands or houses made out of the savings of her separate estate (Steward v. Blakeway, 6 L. R. Eq. 479; 4 L. R. Ch. App. 003), or out of her earnings ( Weldon v. De Bathe, W. N. 27 Dec. 1864. p. 250), will belong to her to her separate use. Arrears of separate estate in the hands of trustees due at the time of a second marriage, will be considered as retaining their original character (Ashlon v. M'Dougall, 5 Beav. 50); but not, it seems, where the trustees have discharged themselves of the trust by paying them to the lady, or her order, or by her direction, during her widowhood, for then such arrears cease to be separate property, and, upon a second marriage, her husband previous to the Married "Women's Property Act, 1882, would become entitled thereto: Spicer
1

v.

Dawson,
*
9.

W.

R.,

M.

R., 481.

Aid

afforded by Equity to protect

Where property was rate property of a married woman.] settled to the separate use of a married woman, she would be protected in the enjoyment of it by Courts of equity, [See Perry on Trusts, Sec. 665; Lewin on Trusts, 550; Church v. Jacques, 3 Johns. Ch. 77; Naglee v. Ingersoll, 7 Barr. 204.] and her husband, would, if necessary, be restrained by injunction from interfering with it. Thus, in Green v. Green, 5 Hare, 400 (n.), a .wife, upon a bill filed by her against her husband, obtained an injunction, restraining him from taking proceedings to recover or receive the

and recover sepa-

* COO

and profits of the trust property (leaseholds), or otherwise intermeddling or interfering with the trust estates, furniture, and effects, and from continuing in possession of a certain hoilRe in which the husband and wife had resided. Upon a motion by the
rents

67

* 601

HULME

V.

TENANT.

husband

to dissolve the injunction, it was argued on his behalf, that the injunction restraining him from continuing in possession of the house in which the wife resided, and from interfering with the furniture, operated as a divorce a mensa et thoro, Sir L. ShadweU, V.C, however, refused the motion, with costs, observing, that "if the injunction had the eftect attributed to it, a question which he could not determine, the husband would not be without his remedy in See also Taylor v. Meads, 34 L. J. (Ch.) the Ecclesiastical Court." 203; Allen v. Walker, 5 L. R. Ex. 187, 190; Woody. Wood, 19 W. K. 1049. And the protection of the Coxirt will be equally granted where the property is settled under a trust for sale, and the proceeds are to be invested, and the dividends paid to the wife for her life for her separate use: Symonds v. Hallett, 24 Ch. D. 346, 350. But although it is clear that the Court can interfere to protect property, as for instance a house in which a married woman resides settled to her separate use, against the interference of her busband, if he wishes to deal with it as his property, and to deprive the wife of her property therein: see Symonds v. Hallett, 24 Ch. D. 351. It

however a matter of some doubt whether she is entitled to exclude her husband from such place, and from exercising his right as a husband when he is not seeking to interfere with her proprietary rights: see Symonds v. Hallett, 24 Ch. JJ. 351, where under special circumstances an interim injunction until the hearing was supported by the Court of Appeal, as it appeared from the husband's affidavit that he did not desire to use or enter into the house as a husband to enjoy the society of his wife, or to consort with her as his wife, but he complained of not being allowed the proprietary use of the house at a time when a divorce suit was pending between them, in which he was charged with adultery and cruelty. [*601 ] Upon the same principle the * creditors of the husband will be restrained from interfering with the separate property of the wife. See Newlands v. Paynter, 4 My. & Cr. 408, there a married woman being entitled under a will to leaseholds and furniture to her separate use without the intervention of a trustee, they were seized in execution by a judgment creditor of her husband, Lord Cottenham, however, restrained the sale of them by the sheriff, and there being a dispute as to whether the whole of the property passed by will, and as to whether part of the property had not been purchased by the wife out of the savings of her separate estate (in which case it would be equally entitled to protection), his Lordship directed inquiries to ascertain the facts. Courts of law, however, even before the Supreme Court of Judicature Act, 1873, came into operation, took notice of the separate use of a married woman (see pp. 602, 603), and now the restraint of See sect. 24, subof any cause by injunction is thereby prohibited.
is

sect. 5.

Where

a married

woman

to

whom

sum

of

money was payable

68

HULME
for her separate use, received a

V.

TENANT.

* 002

cheque from the Accountant Genand handed ii over to her solicitor, who accompanied her; the solicitor was, on motion, ordered by Sir John Romilly, M. R., to pay the balance to his client; and it was held that the onus being upon the solicitor to show cause for not paying it at once, he could Dot set up a voluntary agreement to pay a debt due to him from her husband out of it. "An arrangement," said his Honor, "of this sort would not be of the slightest avail. It is an agreement with a
eral,

married woman who was entitled to receive a sum of money for her separate use, without any professional advice except her personal solicitor, and without any consideration whatever, to pay debts due from her husband, in respect of which she was under no specie^ of liability, and it is clear to me, that the arrangement cannot afford a sufficient reason why her solicitor should not pay over a sum ordered to be paid to her separate use, and which he, accompanying her to the Accountant-General's office, received as her solicitor for Mawhood v. Milbanke, 15 Beav. 36. that purpose:" But where a husband had exercised his legal right by assigning to a purchaser for value without notice, his wife's separate proThus in Dan-son perty, she had no remedy against the purchaser. v. Prince, 2 De G. & Jo. 41, a bill of exchange payable to the order of CD., a married woman, was remitted to her in respect of her Her husband got possession of it without her separate estate. knowledge, forged her name on the back, then endorsed his own name, and gave the bill to P. to get it * discounted, [ * 602 ] P. got it discounted, and stating that she had indorsed it. He then paid in order so to do was obliged himself to endorse it. The acceptor, in consequence of a the proceeds to the hasband. notice from C. D., refused to pay the holder, who thereupon had A suit having been instituted P. paid the holder. recourse to P. by C. D. to establish her title to the bill, and to restrain P. from suing the acceptor at law: it was held, by the Lords Justices of the Court of Appeal, reversing the decision of Sir John Romilly, M. B: (5 W. R. 818), that P. was to be treated as a purchaser of the bill for value, and also that assuming P. to have notice that the bill was drawn in respect of C. D.'s separate estate, yet as there was nothing to excite suspicion of the forgery, he was justiliedin relying on the husband's statement that the bill had been indorsed by her-, and was not bound to inquire further as to the genuineness of her signature, and that there was therefore no equity to restrain him from the assertion of the legal right which he acquired by the husband's
indorsement.
It seems that a married woman could not sue alone in equity for an injunction to restrain a mere personal nuisance, although she alleged that the value of property to which she was entitled to her for if the nuisance separate use was thereby depreciated in value were merely personal, then it was doubtful whether the wife alone, or by her next friend, could sue without the husband, and injury to
;

69

* 603 her property was not of

312.

IIULME
itself a

V.

TENANT.
v.

nuisance: White

Cohen, 1 Drew.

Where lands settled in trust for the separate use of a married woman for life without power of anticipation, and after her death in
were in her lifetime ordered to be sold under the Leases and Sales of Settled Estates Act, the proceeds of the sale were ordered to be paid to thejrustees of the settlement, to beheld upon the trusts declared of the purchase money by the settlement In re Morgan's Settled Estates, 9 L. R. Eq. 587. When a wife assigned her separate property to secure the debt of her husband, she was held entitled as between herself and her husband, and his assignee under the Insolvent Debtor's Act, to have his property comprised in the same security first applied in payment Aguilar v. Aguilar, 5 Madd. 414. of the debt Even before the passing of the Supreme Court of Judicature Act, 1873, Courts of law of recognised transactions between husband and wife relative to the separate estate of the latter, and it was held by the Court of Queen's Bench, that a husband and wife could jointly maintain an action against a party who had received a sum [ * 603] of money at the request of the husband * and wife, for the purpose of appropriating it to the separate use of the wife: Jones v. Cuthbertson, 7 L. E. Q. B. 218 8 L. B, Q. B. (Ex. Ch.) 504; Fleet v. Perrins, 3 L. R. Q. B. 536; 4 L. B. Q. B. 500. So likewise it was held at common law, upon equitable pleas, that a husband, although having the legal estate, was not able to maintain an action for trespass, wrongful conversion, or assault in respect of acts done with regard to land by the equitable lessee of his wife, who was entitled to it for her separate use: Allen v. Walker. 5 L. R. Exch. 187. So in a recent case at common law, furniture had been settled upon a married woman to her separate use, and with money, also her separate property, she from time to time renewed such as wore The whole were seized by the sheriff for a debt of her husout. band. It was held by the Court of Common Pleas that as a Court of equity would, under the circumstances, have restrained the sheriff from selling the accretions as well as the original furniture, a Court of law, upon an interpleader summons, must take notice of the equitable claim of the wife's trustee, and direct the sheriff to withdraw: Duncan v. Cashin, 10 L. R. C. P. 554. Under the Divorce Act (20 & 21 Vict. c. 85) a married woman judicially separated from her husband, or having a protecting order, was enabled to sue and be sued as a feme sole, without a next friend.
trust for sale,
:
:

(Sects. 21, 26.)

Act, 1870, s. 11, "A married maintain an action in her own name for the recovery of any wages, earnings, money and property by this Act declared to be her separate property, or of any property belonging to ber before marriage, and which her husband shall, by writing under

Under the Married Women's Property

woman may

70

IIULME
his hand,

V.

TENANT.

* G04

have agreed with her shall belong to her after marriage and she shall have, in her own name, the same remedies, both civil and criminal, against all persons whomsoever, for the protection and security of such wages, earnings, money, and property, and of any chattels or other property purchased ,or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman; and in any indictment or other proceeding it shall be sufficient to allege such wages, earnings, money, chattels, and property to be her property." See Summers v. The City Bank, 9, L. R. C. P. 580. It was not under sect. 11 necessary that she should in an action respecting the property therein mentioned, have a next friend, or join her husband or her trustees as parties. It seems, however, that with respect to any other separate * property not comprehended within that section, she [ * 604 ] must still have commenced an action thi'ough her next
as her separate property,
friend.

The Act of 1870 did not, however, give any one power to sue a married woman separately in respect of her separate property, so that it still remained necessary under that Act in such cases to join the husband in order to charge her separate property: London and Provincial Bank v. Bogle,! Ch. D. 773; Aticood v. Chichester, 3 Q. B. D. 722; Hancocks v. Lablache, 3 C. P. D. 197; sed vide William v. Merrier, 9 Q. B. D. 337, 339. And where the husband was only a formal party, he was allowed his costs: Wright v. Chard, 4 Drew. 702; Kevan v. Crawford, 6 Ch. D. 29; sed vide Re Osborne, W. N. 1878, p. 179. It has been held that " stock in trade " of a married woman carried on separately from her husband, will be protected from his creditors as coming within the meaning of earnings in the 11th section. See Ashworth v. Outram, 5 Ch. D. 923; Lovell v. Nation, 4 C. P. D. 7. It has also been held that the husband of a married woman must be joined with her as a defendant in an action to charge icagesand earnings, which are under the 11th section her separate property: Hancocks v. Lablache, 3 C. P. D. 197. The right and liability to sue and be sued under the Acts of 1870 and 1874, are preserved by the Married Women's Property Act of 1882 in respect of matters before that Act, see sect. 22. It is also enacted by the Married Women's Property Act, 1882, that, "Every woman, whether married before or after this Act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies, and also (subject, as regards her husband, to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings, for the protection and security of her own separate property, as if such property belonged to her as a feme sole, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indictment or other proceeding under this section it shall be
71

'

605

HULME

V,

TENANT.

sufficient to allege such property to be her property; and in any proceeding under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding: Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they [ * 605 ] were living together, * concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting, or about to leave

or desert, his wife." (Sect. 12.) Moreover, as a house bought with the earnings of a married woman, and in her sole occupation, is her separate property, it has. been held in a very recent case by the Court of Appeal, (reversing the decision of the Queen's Bench Division), that under the Mar-

ried

Women's Property Acts, 1870 and 1883, she alone could sue a person for trespass in having entered such house against her will, although he did so with the authority of her husband, for the purpose of examining her as to her sanity, and though he did not do any injury to her house (Weldon v. De Bathe, W. N. 27 Dec. 1884, p. 250): it was not, however, decided whether the husband had a right himself to enter into the house under such circumstances: lb.

When once 10. As to restraint upon anticipation or alienation,^ was established that the separate property of a married woman must be so far enjoyed by her as a feme sole, as to bring with it all the. incidents of property, and that she might therefore dispose of it as a feme sole, it was found that, to secure her the desired protection against the influence and control of her husband, wbich, if exercised, would in all probability be destructive of her estate, it was necessary to insert in settlements and wills a clause restraining
it

the wife

from anticipating or alienating her separate

first

propertxj.

This

inserted in Miss Watson's settlement, by the advice of Lord Thurlow, who was a trustee (Pi/bus v. Smith, 3 Bro. C. C. 347; Parkes v. White, 11 Ves. 221; Jackson v. Hobhouse, 2 Mer. 487; and see the remarks of Lord Cottenhani in Rennie v. Ritchie, 12 C. & F. 234); and it is valid, when annexed to a gift to a married woman for her separate use, whether the subject of the gift be real or personal estate, or whether it be in fee or for lifeonlv; Baggett v. Meux, 1 Coll. 138; 1 Ph. 627; Re Sijkes' Trusts, 2 J. & H. 415. [Restraint upon alienation is a violation of the ordinary rules of property, the general rule being that the power of alienation is a necessary and inseparable incident to the ownership which cannot be taken away by any stipulation in the grant: See Bispham's Eq. Sec. 104.] Where, however, a woman is seised of an equitable estate tail to her separate use, a clause restraining her alienation of the rents

clause was

72

HULME

V.

TENANT.

* GOO

during her lifo, will not prevent her from barring the entail and acquiring the fee under the Fines and liecoveries Act: Cooper v. Macdonald, 7 Ch. D. 288. And where there is a clause simply restraining a mairiod woman from anticipating a sum of stock bequeathed to ber, the clause against anticipation will prevent ber from alienating the stock during coverture, consequently she cannot if the fund bo in Court call for a transfer of it to herself: In re Ellis's Trust, 17 L. R. Eq. * 409; In re Benton, Smith v. Smith. 19 Ch. D. 277. [ * 606 ] It seems, however, that if there is a clear intention that a married woman shall have a capital fund, when it falls into possession on the death of the tenant for life, a clause restraining anticipation if construed as applicable only to the interval between the death of the testator and the tenant for life will not prevent the married woman from calling for a transfer of the fund on the death Halloran v. King, 27 Ch. See In re Boxvn, of the tenant for life. D. 411, there the testatrix directed her trustees to raise and invest .">()()/. upon trust for R. Boicn for life and after his death as to 1500/. part thereof in trust for and to pay the same to B. O Halloran for her sole and separate use, and it was declared that the interest which any female might take under the will should be for her sole and separate use, and. without power to anticipate the same and for which her receipt alone should be a sufficient discharge. It was held by the Court of Appeal, reversing the decision of Kay, J., that the married woman was entitled to the fund, as the restraint on anticipation did not apply, and was only applicable during the interval, between the death of the testatrix and the death of R. Bourn, See also In re Croughton's Trusts, 8 Ch. D. the tenant for life.

too.

But

in

some

cases, expressions

this distinction, that

where there

is

have been used by judges making a gift of an income bearing fund

the restraint on anticipation is effectual, but that it is not effectual if it is a sum of cash. See In re Clarke's Trusts, 21 Ch. D. 748. In a recent case, however, Lord Justice Cotton observes "that According to the judgment of Mr that distinction is erroneous. Justice Fry in In re Clarke's Trusts (21 Ch. D. 748), it depends on the accident, whether at the time the money is in cash or is inIn my opinion the question devested. I think that is enwneous*. pends upon the intention of the testator declared in his will: has he declared an intention that the money should be paid to her a married woman) or that the income should be paid to her from time to time? It is not enough that it should be an income bearing fund, but the intention of the testator, must be shown that the married woman is to have the enjoyment of it, in the way of income. In that case the words restraining anticipation must have their effect given to them. [No particular form of words is necessary to impose a restraint upon alienation, it is sufficient if the inA restraint tention to impose the restraint is clearly expressed.
(

73

* 607

IIULME

V.

TENANT.

also be implied when a different interpretion would defeat the purpose of the donor: Perkins v. Hays, 3 Gray, 405; Weeks v. Sego, 9 Ga. 201; Nix v. Bradley, 6 Rich. Eq. 43.] That is the true rule, which does not turn on the accident as to how the money is If the invested at the death of the testator, or at any other time. testator shows that the married woman is to enjoy the gift not as a mere money fund, but as an annuity, that is a strong intimation of his intention that he means the restraint on anti* 607 ] * cipation to apply not only to the income but also to the [ capital:" per Cotton, L. J., In re Bown, CHalloran v. King, '27 Ch. D. 422. See In re Spencer, Thomas v. Spencer, 30 Ch. D. 183. There a testator had directed the surplus income of real and personal estate, after providing an annuity, to be accumulated during the life of his wife; after her death he gave the capital to his children, and he directed that the shares of his daughters should be to their separate use, without power of alienation or anIt was held by Pearson, J., that ticipation during his wife's life. his married daughters during the life of their mother were entitled to receive only the income of invested income. Although interest for many purposes is treated as accruing due de die in diem, a married woman upon whom the fund out of which it proceeds is settled to her separate use without power of anticipation, cannot effectually assign an apportioned part of the interest up to the date of the assignment, but can only deal with the interest after it has become payable {In re Brettle, 2 De G. Jo. & Sm. 79; Jollands v. Burdett, 10 Jur. N. S. 349), as to which the clause restraining anticipation has no reference: Clay don v. Finch, 15 L. R. Eq. 206. And though ordinarily the income of property, settled to the separate use of a married woman, is liable to make good a loss occasioned by her own breach of trust in making away with other property under the trust, if there be a clause against anticipation, future income during coverture will not be so liable: Clive v. Careie, 1 J. & H. 199; Pemberton v. M'Gill, 1 Drew. & Sm. 266, ante, p. 576. [If a married woman procures or induces the trustee to commit a breach of trust, which results in the loss of the fund in which she has an interest to her personal use, the Court treats her acts as an alienation of the estate, so far as she had power to bind it Perry on Trusts, Sec. 669.] Nor is there any equity to apply income which a married woman is restrained from anticipating to make good the consequences of her fraud, where the restraint on anticipation appears from the instrument in respect of which relief is sought: Arnold v. Woodhams, 16 L. R. Eq. 29. See also Kenrick v. Wood, 9 L. R. 590. And the result is the same where the wife joins with her husband in fraudulently concealing- from a mortgagee the restraint against alienation: Stanley v. Stanley, 7 Ch. D. 589. The clause against anticipation, when annexed to a gift to an

may

74

HULMB

V.

TENANT.

* 008

Englishwoman whoso husband is domiciled abroad, is valid, and it cannot be dispensed with, even although by the law of the country where the husband is domiciled, it is inoperative, because a change of domicile does not prevent an English citizen from taking prop erty according to the form allowed by the law of England: Peillon v. Brooking, 25 Beav. .218.
a clause restraining alienation, the income is by tho trustees, at any rate when they have authority under the instrument whereby they are appointed to reimburse themselves: see D" Oechsner v. Scott, 24 Beav. 239. And the costs of a married woman, incurred by her in the defence to a suit by her husband, to set aside a post-nuptial settlement whereby funds were assigned to trustees to secure an annuity to her separate use, without power of anticipation, were under the provisions of sect. 28 of 23 & 24 Vict. c. 127, charged on the annuity: In re Keane, 12 L. R. Eq. 115. And in a recent case, a married woman who under a will was entitled to income for her separate use, with a restraint upon anticipation, instituted (without a next friend) against trustees proceedings, in the course of which she took out a summons which was refused. It was held by Pearson, J., that the restraint on anticipation did not prevent the Court from giving the trustees liberty to retain their costs of the proceedings out of the married woman's income: In re Andreivs, Edwards v. Dewar, 30 Gh. D. 159, and see In re Robinson, Pindar v. Robinson, W. N. 1885, July 11, p. 147; In re Glanville, Ellis v. Johnson, 1885, Dec. 20, p. 224; but this case was reversed by the Court of Appeal, W. N. February 13, 1880, p. 23, since the above paragraph was in print, and it seems, though very briefly reported, to overrule the cases cited therein. [In South Carolina, Massachusetts and Ohio, the separate estate of the feme is chargeable for debts contracted on its account and for its use: Hepburn v. Warner, 112 Mass. 271; Machir v. Burroughs, 14 Ohio (N. S. ) 519; Adams v. Mackey, Rich. Eq. 75; Willard v. Eastham, 15 Gray, 328; Tracy v. Keith, 11 Allen, 214.] *By a marriage settlement the income of a trust fund [*008 ] was to be paid during the joint lives of husband and wife, as they should appoint, " but not so as to deprive themselves of the benefit Before thereof by charge or otherwise in the way of anticipation.'''' a divorce & mensCi et thoro, they appointed the income between themselves in equal moieties. It was held by Sir John Rom illy. M. R., that the appointment was valid, as they would not deprive themselves of the benefit of the fund by dividing the income between them In re IAnzee's Settlement, 23 Beav. 241.

Although there

is

liable to costs properly incurred

What words will restrain it lie nation.] The usual words restraining alienation by a woman, are that she " shall not have power to dispose thereof (i. e., the funds settled to her separate vise) byway
75

* 609
of anticipation.

HULME

V.

TENANT.

As in the case of the separate use, no particular form of words is necessary to restrain alienation. Thus where there was a declaration that the receipt of the wife, or any person to whom she should appoint the income of property, after the same should become due, should be a valid discharge, it was hold that she was restrained from alienation: Field v. Evans. 15 Sim. 375; Baker v. Bradley, 7 De G. Mac. & G. 597; Doolan v. Blake, 3 Ir. Ch. Rep. 340; Estate of H. H. Molyneaux, 6 Ir. Rep.
Eq. 411.

The result was the same when, the receipt of the married woman to trustees for rents bequeathed to her separate use for life, was to be given as the same should become due from time to time : In re
Aug. 2, 1884, p. 181; and seeBaker Smith, Chapman v. Wood, W. So where property is given to v. Bradley, 7 De G. Mac. & G. 597. the separate use of a married woman, " not to be sold or mortgaged," she will take with a restraint upon alienation: Steedman v. Poole, Where, as in Miss Watson's Case, there is a gift or 6 Hare, 193. settlement of property to the separate use of a married woman, and it is expressed to be without power of anticipation, it is clear that See Parkes v. White, 11 Ves. 221; alienation by her is restrained. Sockett v. Wray, 4 Bro. C C. 483; Jackson v. Hobhouse, 2 Mer. [The restraint upon alienation or anticipation will apply to 487. both real and personal estate: Baggett v. Meux, 1 Phil. 627; Freeman v. Flood, 16 Ga. 528.] So when it is given to her sole, separate and inalienable use : UOechsner v. Scott, 24 Beav. 239; Spring v. Pride, 10 Jur. N. S. 646; lb. 4 De G. J. & S. 395. Where, according to a form at one time not unusual amongst conveyancers, the income of a fund was payable to such persons as a married woman should by writing, but not by way of anticipation, appoint, and in default of appointment there was a gift of it to her separate use it was held by Sir L. Shadwell, V.-C, that since the clatise restraining anticipation was not expressly extended * might execute a [ * 609 ] to the gift as well as to the power, she valid assignment of the income (Broivn v. Bamford, 11 Sim. 127; 12 Sim. 616; and see Barrymore v. Ellis, 8 Sim. 1); and in another case his Honor held, that unless the clause restraining anticipation was expressly extended to the power, she might execute However, in a valid appointment: Medley v. Horton, 14 Sim. 222. Brown v. Bamford, 1 Ph. 620, Lord Lyndhurst, although at first he expressed an opinion in accordance with that of the Vice- Chancellor, ultimately, upon a re- argument, overruled it; saying that the restriction against alienation extended to the whole gift: that such was the true construction of the bequest, and that it corresponded with what appeared to have been the manifest intention of the testator. See, also, Harnett v. Macdougall, 8 Beav. 187; Moore v. Moore, 1 Coll. 54; and in Baggett v. Meux, 1 Coll. 138, a testator devised real estate to his daughter, a married woman, in fee, but with a

76

HULME

V.

TENANT.

010

declaration that she should not sell charge, mortgage, or encumber she should take it for her it, followed by another declaration, that own sole and separate use and benefit and disposal, and have the

management thereof, independent of h^r husband, and free from his control or intermeddling. It was held by Sir J. L. K. Bruce, V.-C, that the restraining clause was not void, inasmuch as the succeeding as the it musl I)" taken in connection, as well with preceding words; and therefore, that a security, by way of equitable mortgage, executed by the husband and wife to a party who had noticeof the wife's title under the will, was void as against the This decision, which was affirmed, 1 Ph. 627, must be conwife. See, also, sidered as overruling Medley v. Horton, 14 Sim. 222. Gouldner v. Camm, 1 Do G. F. & Jo. 146. It is not at all necessary that negative words should be introduced in the receipt clause, to complete the restraint upon alienation, for the clause must be construed to relate to the income, subject to such restraints as are imposed by the former part of tho setSee Harrop v. Howard, 3 Hare, 624; Brown v. Barntlement.
sole
ford, 1 Ph. 626.

upon alienation will not be effectual unless it be Thus, where there was a direction to pay dividends to such persons and in such manner and form as the wife should, from time to time during her life, notwithstanding her coverture, by any note or writing under her hands appoint, and in default of appointment, into her proper hands for her separate use, and, after her death, to her husband; upon a bill being filed by the husband and wife, it was held there was no restraint upon alienation by the wife, and a transfer of the fund was, with the consent of the wife, made to the *hnsband; Clarkex. Pistor, cited 3 Bro. CO. [ * 610 ] 568; Pybusv. Smith, 1 Ves. jun. 189; S. G, 3 Bro. C. C. 340; Witts v. Dawkins, 12 Ves. 501; Brown v. Like, 14 Ves. 302; In the case of Hovey v. Blakeman, . Sturgisv. Corp, 13 Ves. 190.

The

restraint

clear.

Ves. 524, where there was a trust to pay rents, dividends, and profits, "into the respective proper hands of the testator's two sisters, so long as they should live, the same to be to their separate use," Sir William Grant, M. R, thought, as it was expressed, that an absolute property was not intended to be given to them, so as to give a power of disposition; that it was a personal bequest to them, to be paid into their respective proper hands, without a power of disposition; and he dismissed a petition of an annuitant under a grant from one of them, leaving her to file a bill, but intimating an opinion against it. The authority however of Hovey v. Blakeman is at least doubt ful, if it is not to beconsidered as overruled; for, where expressions

giving the wife a right to receive property "with her own hands," or, "with her own hands from time to time," or where equivalent expressions are made use of, thev are, to use the words of Lord Eldon, "only an unfolding of all that is implied in a gift to the

77

* Gil

HULME

V.

TENANT.

separate use."
I S.

See Parkesx. White, 11 Ves. 222; Acton v. Whife, Rose v. Sharrod, 11 W. R. (V.-C. K) 35G. So where a testator, having bequeathed a sum of stock in trust

&

S. -i2-U;

for the separate use of his wife for her life, directed that it "should remain during her life and be, under the orders of the trustees, made a duly administered provision for her, and the interest of it to be

given to her, on her personal appearance and receipt,''' by the banker the trustee might appoint; it was held by Lord Cranworth, V.-C, that the wife was not prohibited from alienating her interest in the See also Wagstqff v. stock; Re Ross's Trust, 1 Sim. N. S. 196. See and consider Scott v. Davis, 4 My. k, Smith, 9 Ves. 520, 524.
Cr. 87, 89.

Although a bequest of stock for a married woman, for her separate use for life, and after her decease, for her appointees, directs that, "in case any appointment should be made by deed, the same should not come into operation until after her death," the married woman is not thereby restrained from anticipation, nor prevented from appointing the fund by an irrevocable deed: Alexander v.
Young, 6 Hare, 393. And, where upon marriage, certain stocks were agreed to be transferred to the wife, and a co-trustee for her, "neither party having power to dispose of the said stocks without consent of both parties to such disposal," it was held that the wife could * 611 ] not alienate without the consent *of the trustee: Hastie v [
Hdstie, 2 Ch. D. 304. to the insertion of a clause against anticipation in the case of executory trusts, see ante, pp. 48, 35.

As

power to appoint among a class not born instrument creating the power, as for instance the children of a marriage, makes an appointment to the separate use of a married daughter, with a clause against anticipation, invalid as a breach of the rule against perpetuities, the Court, in order to prevent the execution of the power from being defeated will reject the cliuse in restraint of anticipation: Fry v. Capper, Kay, 163; In re Michael's Trusts, 46 L. J. Ch. 651; In re Cunningham's Settlement, II L. R. Eq. 324; In re league's Settlement, 10 L. R. Eq. 564; Leading Cases on Real Prop., 487, 3rd ed. And if a similar appointment be made to an unmarried daughter, who afterwards married, the marriage will not operate as an adoption of the trusts of the fund so as to establish the validity of the clause restraining anticipation: In re league's Settlement, 10 L. R. See In re Ridley, Buckton v. Hay, 11 Ch. D. 645; followEq. 564. ing but disapproving of the decision in Fry v. Capper. So where a bequest was made to persons in esse for life, Avith remainder to their unborn children, with a general direction that female children should take for their "separate and unalienable use," it was held bv Lord Romilly, M. R., that such restriction was too remote and void: Armitage v. Coates, 35 Beav. 1. The language, however,

Where

a person having

at the date of the

78

HULME

r.

TENANT.

(ill'

of the direction may be such as by implication to confine the restriction to tenants for life: in which case it would be valid. lb. The restrain), however, would be valid as not offending against

the rule relating to perpetuities if the daughter had been in existence at the date of the instrument creating the power: Wilson v. Wilson, 4 Jur. X. 8. 1070; Herbert v. Webster, 15 Ch. D. 610; Cooper v. Laroche, 17 Ch. D. 368; and see Inrc Cunningham's Settlement, 11 L. 11 Eq. 327, per Sir R. Malins, V.-C. Where a woman of full age enters into an agreement on marriage for the settlement of her property to her separate use, it does not seem that the settlement itself should contain a clause against anticipation (Symonds v. Wilkes, 13 W. R. (L. J.) 1026, reversing the decision of Sir J. Romilly, M. R., 12 W. R. 541); at all events the Court cannot act as if such clause were inserted in the settlement, in the absence of a decree for the rectification of the settlement by ordering its insertion. lb. See cases under settlements directed to

be made by Wills, ante, pp. 48, 35. The Married Women's Property * Act, 1882, does not in- [ * 612] terfere with existing and future settlements upon women to their separate use without power of anticipation. See sect. 19, which enacts " that nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman, or shall interfere with, or render inoperative any restriction against anticipation at present attached or to be hereafter attached to the enjoyment of any property or income by a woman under any settlement, agreement for a settlement, will or
other instrument." And it seems that under this section a simple restraint on anticipation, where desired, is effectual, and sufficient even in case of a settlement made by a married woman of her own property. See The

Conveyancing and Married Women's Property Acts, by Wolstenholine and Turner, 3rd ed., p. 6. " But no restriction against anticipation contained in any settle ment or agreement for a settlement of a woman's own property to be made or entered into by herself shall have any validity against debts contracted by her before marriage, and no settlement shall have any greater force or validity against creditors of such woman than a like settlement or agreement for a settlement made or entered into by a man would have against his creditors." 76. Sect. 19.
Duration and extent of separate use and restraint on alienathe latter can be dispensed with.] As the separate use, and the restraint upon alienation, which is a modification of it, are creatures of equity called into existence merely for the purpose of securing to the wife the enjoyment of her own property free from marital rights and influence, they exist only when they are neces11.

tion,

and when

sary for that purpose; thus, property given to the separate use of a

79


* 613

HULME

V.

TENANT.

woman, although subject

to restraint

upon

anticipation,

may

he

aliened by her at any time when she is discovert (Tullett v. Armstrong, 1 Beav. 1; 4 My. & Cr. 377); that is to say, when she is a feme sole before marriage (Woodmeeston v. Walker, 2 E. & M. 197: Brown v. Pocock, lb. 210; Massey v. Parker, 2 My. & K. 174), or when she is a widow after her husband's death (Jones v. Salter, 2 R. 9 08) or after she has obtained a decree for judicial separation: & Munt v. Glynes, 20 W. R, (M. R) 823; 41 L. J. Ch. (N. S.) 639. [A married woman may be restrained by the terms of the trust, from alienating or anticipating the income of her separate estate, during her present or any future coverture: Perry on Trusts, Sec.

670.

one time, supposed, that the separate use, with the restraint upon anticipation, was only effectual during a coverture in existence at the time of the gift, and did not pxtend to * 613] a subsequent coverture (Newton * v. Beid, 4 Sim. 141; [ Brown v. Pocock, 5 Sim. 663; Woodmeeston v. Walker, 2 Russ. & My. 207); but it is now clearly settled by the leading case of Tullett v. Armstrong (1 Beav. 1), that although the separate estate, whether modified by restraint or not, is suspended while a woman is discovert, it is capable of arising upon the happening of any marriage. In that case, a testator gave property to trustees, in trust for his wife for life, with remainder to JA. A. T., then a feme sole, for life, in such manner that it should not be anticipated, and M. A. T. was that no husband should acquire any control over it. unmarried at the death of the testator, but she married in the lifetime of the widow. It was held, by Lord Langdale, M. R., whose learned and elaborate judgment has settled the law upon a satisfactory basis, that both the separate use clause, and the restriction against alienation, became effectual on her marriage; and his Lordship laid down the following rules as deduced from the authoriIt was, indeed, at
ties:

of

That property given to a woman for her separate use, independent any husband, may, under the authority of this Court, be enjoyed by her during her coverture as her separate estate, although the property originally, or at any subsequent period or periods of time, became vested in her when discovert. "That, in respect of such separate estate, she is, by the Court, considered as a feme sole, although covert. Her faculties as such, and the nature and extent of them, are to be collected from the terms in which the gift is made to her, and will be supported by this Court for her protection., "The words 'independent of a husband,' whether expressed or implied in the terms of the gift, mean no more than that this Court will not permit the marital power of the husband to be used, in contravention of the enjoyment of the property, according to the terms
"

of the gift.

"If the

gift

be

made

for her sole

and separate

use,

without

80

HULME

V.

TENANT.

* 614

more, she has, during the coverture, an alienable estate independent of her husband. " If the gift be made to her sole and separate use -without povvor to alienate, she has, during coverture, the present enjoyment of an unalienable estate independent of her husband. "In either of these cases she has, when discovert, a power of alienation; the restraint is annexed to the separate estate only, and the separate estate has its existence only during coverture; whilst the woman is discovert, the separate estate, whether modified by restraint or not, is suspended, and has no operation, though it is capable of arising upon the happening of a marriage. " The restriction cannot be * considered distinctly from [ * 614 ] the separate estate, of which it is only a modification. To say that the restriction exists, is saying no more than that the The donor, in giving the woman separate estate is so modified. when married, some of the faculties of a feme sole, has withheld the power of alienation, under the terms of the gift; and, by the aid of this Court, the woman is a feme sole, as to the present enjoyment of the property, but no further; measuring her faculty by the terms of the gift, she is not a feme sole as to the disposition If there of her property in anticipation of her intended provision. be no separate estate, there can be no such restriction as that which now under consideration. The separate estate may, and often does exist, without the restriction, but the restriction has no independent existence; when found, it is as a modification of the separate estate, and inseparable from it." The decision of Lord Langclale was affirmed by Lord Cottenham: See, also, Lire Gaffee, 1 Mac. & G. 541; Scar4 My. & Cr. 405. borough v. Borman, 4 My. & Cr. 378; Hatches v. Habbaek, 11 L. K,
i.-i

Eq.

5.

trust for the separate use of a woman may be confined to a Thus in Moore v. Morris, 4 Drew. 33, where particular coverture. there was a devise to Jane D. for her separate use, and a bequest of personal estate to her for her separate use, independent of Henry D., her husband, and her receipts alone to be sufficient discharge, it was held that the limitation to the lady's separate use did not extend beyond the husband specifically named. Hence, on a second

marriage, the marital right of her husband would extend to her property. Where, however, the words show that the separate use is intended to last during the whole life of the wife, the separate use, together with the restraint against anticipation, if any, will, unless destroyed by the married woman while discovert, be in force not only during And the past, but will also revive during any subsequent coverture. the result is the same, where in a marriage settlement, the payment to her separate use is to be independently of the debts or conSee Hawhesv. Hubback, 11 L. trol of her then intended husband. R. Eq. 5. There by a marriage settlement the income of trust funds
* 6

WHITE OX KQUITY.

81

* 615

HULME

V.

TENANT.

life of L. to be for her separate use, independently of the debts or control of her intended husband, and so that her receipts alone should be sufficient discharges, without power of anIt was held by ticipation, the husband died, and L. married again. Lord Romilly, M. R., that the trust for separate use revived on her "It is true," said his Lordship, "that second marriage.

was during the

to 'be free from the control of her * intended husband,' but that cannot control the words limiting the income to her separate use during her life. She might of course have disposed of it as she pleased after the death of her first husband, but she not having clone so, according to the principle of Tullett v.

[*615]

it is

Or. 377; the trust revived upon her G. 541, which was re Gaffee, 1 Mac.

&

and Scarborough v. Borman, 4 My. second marriage." See In under a post-nuptial settle& ment, and where a restraint against anticipation was held to apply to the whole life of the wife, and to her husband on her second marriage. See also Re Motyneux's Estate, 6 I. R. Eq. 411; overruling Knight v. Knight, 6 Sim. 121; Benson v. Benson, 6 Sim. 126; Bmdley v. Hughes, 8 Sim. 149. Inasmuch as a woman has, when discovert, full power over property settled to her separate use, though coupled with a restraint against alienation, the question sometimes arises whether the lady has not by her acts acquired the property unrestricted and unfettered by any trust or restraint, so that neither attach upon her marriage as they would do in the absence of such acts. As for instance, when stock has been given to trustees for the separate use of a woman, and she afterwards, when discovert, has called upon the trustees to sell the stock, and received from them

Armstrong (4 My.

&

C. 405);

the proceeds of the sale, the trust for her separate use is clearly at an end. Per Wood, V.-C, in Wright v. Wright, 2 J. & H. 665." So dividends of stock settled as a married woman should appoint, and subject thereto to her separate use, received after the death of her husband (Mayd v. Field, 3 Ch. D. 587), and railway stock arising from the sale of furniture so settled and sold after his death (lb.), will not pass as her separate property under an appointment by will, in excercise of the power made by her during coverture, but will go lb. to her next of kin. A woman moreover when discovert has a right to call upon trustees for a transfer to her of property settled to her separate use, though it be without power of anticipation: see Buttanshaw v. Martin, Johns, 89. The question is more difficult when property has been left to the The separate use of a woman without the intervention of trustees. authorities, however, appear to decide that when a woman, having property so given to her, allows it to remain in statu quo, in the same form of investment in which it was given to her, then on her subsequent marriage her husband must be considered as adopting the property in the state in which it was left, and subject to the

82

HIJLMK
trusts

V.

TENANT.

* 617

which while in that state had boon impressed upon it; and the husband, moreover, will be converted into a trustee for the * wife: Newlands v. Paynter, 4 My. & Cr. 408. [ * 616 ] But if the woman, being sui juris and discovert, deals with the property so left to her, by selling, and spending part of the proceeds and converting the rest into property of a different kind, the See Wright v. Wright, 2 J. & H. 647; there trust will bo at an end. stock in the public funds was bequeathed to a woman for her separate use, without power of anticipation, but without the intervention of any trustee, and she afterwards being discovert and sui juris sold the stock, and spent a portion of the proceeds, and invested It was the rest in shares of a joint-stock bank and Canada bonds. held by Sir W. Page Wood, V.-C, that by so doing she determined the trust for her separate use. The mere circumstance of its being possible to trace the proceeds of the sale, cannot enable the Court, where once the cestui que trust, being discovert and sui juris, has converted the property from its original form, and has dealt with it as absolute owner, to treat the property into which the proceeds of the sale can be so traced lb. as still subject to a trust for her separate use. The question often arises whether a covenant in a marriage settlement to settle the after acquired property of a woman about to be married comprehends separate property. It is clear that where the covenant is that of the husband only, and he only is to do something pursuant to the covenant, it does not affect the wife's separate property, because such covenant could only affect property to which he might become entitled jure mariti, but if the intended wife, being of age, joins in the covenant or agreement, and she as well as he are to do something in pursuance thereof, and the words are large enough to include any property which may devolve upon her, if she becomes entitled to property to her separate use, without any restraint upon alienation, she may be compelled to bring such property into settlement according to her covenant or agreement: fampbell v. Bainbridge, 6 L. R. Eq. 269; Butcher v. Butcher, 14 Beav. 222; In re Allnutt, 22 Ch. D. 275, overruling In re Mainroaring's Settlement, 2 L. R. Eq. 487 and see Scholefield v. Spooner,
(
;

26 Ch. D. 94. If when the wife executes the settlement she is an infant, and her covenant, being in terms large enough to include her separate property is for her benefit, it is voidable only, and not void, and is binding upon all property coming to her during the coverture for her separate use, without restraint on anticipation until she avoids or disaffirms the covenant as to such property, for she may, after attaining twenty-one, and during the * coverture [*617] elect whether the covenant shall be binding on her separato estate or not, such right of election being a necessary consequence of a married woman's power to dispose of without her husband's consent, 83

* 61S

IIULME

V.

TENANT.

property settled to her separate use: Smith v. Lucas, 18 Ch. D. 531; and see Rawlins v. Birkett, 25 L. J. (Ch. ) 837. But formerly, inasmuch as a contract by a married woman, while under coverture a fleeting her separate property bound only her then existing separate property, and not separate property which she might thereafter acquire (Pike v. Fitzgibbon, 17 Ch. D. 454) he wife in electing to confirm the covenant, thereby bound only that separate property to which she was entitled at the date of the confirmation, and not that to which she might subsequently become entitled during the coverture: lb., and see Smithy. Lucas, 18 Ch. D. 531. But now by Sect. 1 (4) of the Married Women's Property Act, 1882, "every contract entered into by a married woman with respect to and to bind her separate property shall bind not only the separate property which she is possessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire." Sed vide In re Shakespear, Deakin v. Lakin, 30 Ch. D.
109.

however, the covenant or agreement in the settlement appears husband alone, property she takes to her separate use will not be included in the settlement: Datves v. Tredicell, 18 Ch. D. 354; In re De Ros' Trust, Hardwicke v. Wilmot, 31 Ch. D. 81; Ramsden v. Smith, 2 Drew, 298; Douglas v. Congreve, 1 Keen, 410; Thornton v. Bright, 2 My. & Cr. 230; Trovers v. Travers, 2 Beav. 179. Moreover, if a covenant to settle after- acquired property in which the wife joins contains an exception of such as should be "otherwise settled," property coming by will to the wife to her separate use free from the debts, contracts, or engagements of her husband will be excluded from the operation of the covenant: Kane v. Kane, 16 Ch. D. 207. Although a married woman under the Act of 1882 takes property given to her by a will coming into operation after the commencement of the Act, as separate property it will fall within a contract in a' settlement to settle after-acquired property of the wife, although property settled and limited to her separate use and disposal is thereby excepted. See In re Stonors Trusts, 24 Ch. D. 195. There a marriage settlement made in 1862, contained an agreement for the settlement of any future-acquired property of the wife to a specified amount (except interests settled and limited to her separate use). The wife after the commencement of the Married Women's Property Act I882,became entitled absolutely [ * 618 ] to a bequest above the specified amount, without any limitation to her separate use. It was held by Pearson, J., that by the 19th section of the above Act, the marriage settlement was exempted from the 5th and other sections; and that the bequest to the wife came within the covenant to settle future acquired property and must be dealt with as if the Act had never been passed.
If,

to be confined to the

84

HULME

V.

TENANT.

* 010

"Where there was attached to the separate use of a married woman a clause against anticipation, the Court had formerly no power to release it from that restraint, even in cases where it would maniThus where a testator gave a festly be for her benefit to do so. married woman a legacy upon condition that she conveyed within twelve months, her separate estate, which was subject to a restraint against anticipation, to certain persons, it was held by Sir John Romilly, M. R., that effect could not be given to the bequest, though "It is said," observed his highly beneficial to the married woman. Honor, "that these cases of separate use and restraints are mere creatures of equity, and that therefore a Court of Equity may deal with them as it thinks right. It is, no doubt, true that they have arisen from the doctrines laid down by the judges who have presided in courts of equity; but so have all trusts, and it does not therefore follow that this Court can dispense with or mould this I entirely concur in the argument, fetter as and when it thinks fit. that if the Court could, on the present occasion, dispense with it, because it is for the interest of the married woman, it might and would in like manner be dispensed with, if a person offered to give her three times the value of the property to settle it on the same trusts, provided she conveyed her separate and unalienable interest But I am of opinion that she could not so convey in the property. it; the first testator has thought fit to impose certain fetters on his
it

property, which are sanctioned by the law of England, and which permits a testator to impose: those fetters remain and make the property in the hands of the devisee or legatee absolutely inalienable for any consideration whatever:" Bobinson v. Wheelright, 21 Beav. 214, affirmed on appeal, 6 De G. Mac. & G. 535; Heath v. Wickham, 3L. R. Ir. 376; 5 L. R. Ir. 285; Tussaud v. Tussaud, See also, Peillon v. 9 Ch. D. 375; Smith v. Lucas, 18 Ch. D. 531. Brooking, 25 Beav. 218. So, where there was an absolute gift to a married woman, but with a restraint upon anticipation, the fund could not during the coverture be parted with by the Court: Gaskell's Trusts, 11 Jur. N.
S. (V.-C.

W.) 780.

Again, where a married woman who was entitled to the income of property held in trust for her separate use, with a restraint upon ^anticipation, joined her husband in a power [ * 610 ] of attorney to receive and sue for any moneys due to them, it was held by Sir B. Matins, V.-C, that the trustee was not justified in paving the attorney the wife's separate income: Kenrich L.*R. Eq. 333. v. Wood, If, however, an estate settled to the separate use of a married woman without power of anticipation, is subject to prior equities, such, for instance, as raising the costs of a suit, the Court may be able to direct a sale of the estate: Fleming v. Armstrong, '>l Beav.
:

L09.

As

to the liability of

such estates for

costs.

See ante,

p.

607.

85

* 620

HULME

V.

TENANT.

It seems that the clause restraining a married woman from anticipation does not exempt her from the ordinary consequences of lapse of time and acquiescence (Derbyshire v. Home, 3 De G. Mac.

G. 80. See Dames v. Hodgson, 25 Beav. 186); and that she can bind herself by a compromise with her trustees as to the amount of the sum settled to her separate use: Wilton v. Hill, 25 L. J. (Ch. 156. [Ash v. Bowen, 10 Phila. (Pa.) 96 Pickering v. Coates, 10 Phila. 65; Snyder's Appeal, 92 Pa. St. 504.] The legislature has of late years, in certain cases, either dispensed with or enabled the Court to dispense with, the restraint against Thus, where a married woman applies to the Court, anticipation. or consents to an application to the Court under the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), she must first be examined apart from her husband, touching her knowledge of the nature and effect of the application, and it must be ascertained that she freely desires to make or consent to such application; and such examination shall be made, whether the hereditaments which are the subject of the application shall be settled in trust for the separate use of such married woman, independently of her husband or not; and no clause or provision in any settlement restraining anticipation, shall prevent the Court from exercising, if it shall think fit, any of the powers given by this Act, sect. 50. Again, it nas been recently enacted by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), sect. 39: (1.) "Notwithstanding that a married woman is restrained from anticipation, the Court may, if it thinks fit, where it appears to the Court to be for her benefit, by judgment or order, with her consent, bind her interest in any property." [If it appears that the paramount object of the will was to provide a fund for the support and maintenance of the testator's wife during her lifetime, and for the maintenance and education of her children, the power of alienation is implied, but effectually fordidden: Perkins v. Hays, 3 Gray, 405, and Nix v. Bradley, 6 Rich. Eq. 43.] (2.) This section applies only to judgments or orders made after the commencement of this Act. See also the remarks of Hall, V.-C, in Tamplin v. Miller, W. N. 1882, p. 44, on the intention of
;

&

the section.
application thereunder must be made by summons chambers and not by petition (Re LillwalVs* Settlement, W. N. 1882, p. 6), and the consent of the married woman need not be taken by a separate examination. In Hodges v. Hodges, 20 Ch. D. 749, where an order wa3 made under this section upon the application of the husband and wife in order to enable the latter to pay her debts, the fund in question was so settled, that whether she did or did not exercise a power of appointment, it would, at her death, be subject to the payment of her debts. See also In re Harvey" s Estate, 13 Ch. D. 216, sed vide In re Bown, O'Halloran v. King, 27 Ch. D. 411; 49 L. T. (N. S.) 165.
[

An

* 620

in

86

HULME
The Court
will not

V.

TENANT.

* 621

remove the restraint upon anticipation when the might be to give rise to the forfeiture of a married woman's interest: la re Jordan, King v. Ficard, W. N. 1886, Jan
effect thereof

23, p. 6.
It was said in the leading case of Howard 12. As to Pin-money.] Uigby, 8 Bligh, N. R. 25 J, that no definition of pin-money was to be found in the books upon which reliance could be placed; that the line which divided it from the separate property of the wife could not be traced with any distinctness, or in a way on which dependence could be placed. Pin-money, however, may be described with sufficient accuracy to be an allowance settled upon the wife before marriage for the wife's expenditure on her person; it is to meet her personal expenses, and to deck her person suitably to her husband's dignity, that is to say, suitably to the rank and station of his wife. lb. p. 268. ["Pin-money may be defined to be a yearly allowance settled by the husband upon the wife, for her clothes or other personal expenses; and its principle incident is that its purpose is expenditure, and not accumulation:" Bispham's Eq. Sec. 108.] Gifts or gratuitous payments may from time to time be made by the husband for the same purposes 2 Bright, H. & W. 288. This being the object of pin-money, it is evidently different from money settled to the wife's separate use, where the marital right is totally excluded; nor is it like an absolute gift from the husband to the wife. It is necessary to bear this in mind when questions arise relating to arrears of pin-money. Upon this subject it may be considered to be law, that where the wife permits her pin-money to run in arrear, she cannot, on the death of her husband, claim arrears for more than one year prior for the very object of the allowance of pin-money to his death being to enable the wife to deck her person suitably to her husband's rank without having recourse to him continually for small sums of money, excludes the supposition that she may accumulate her pin-money, while her husband pays her bills. Where, however, a wife from time to time demanded the arrears of her pin-money from her husband, and he promised that she should have it at last, it was held by Lord Hardwicke. C, that she was entitled to all the arrears duo at her husband's death Ridout v. Lewis. 1 Atk. 269. Where a husband has paid for all the wife's apparel, and provided for all her private expenses, she cannot, it seems, at any rate where * there is no evidence that she ever de- [ * 621 ] manded her pin-money, claim for any arrears at the death of her husband (Powell v. Hankey, 2 P. Wins. 84 Tliomas v, Bennet, 2 P. Wms. 341 Fowler v. Fowler, 3 P. Wins. 355). And even where the wife has been lunatic, if the husband has maintained her in a manner befitting her rank and station, providing ail those
(

v.

87

622

HULME

V.

TENANT.

things for her for which her pin-money was set apart, neither she nor a fortiori her personal representatives can claim any arrears of pin-money: Howard v. Digby, 8 Bligh, N. R. 224. The personal representatives of the wife cannot go back for a year, or even any part of a year, for the arrears of pin-money, for the allowance of pin-money has relation only to the personal dress and expenses of the wife: Howard v. Digby, 3 Bligh, N. R. 245. As to the origin of pin-money, see Sug. Prop. Ho. Lo. 165 n.

The paraphernalia of the wife in13. As to parapliernalia.'] clude such apparel and ornaments of the wife as are suitable to her condition in life, such as pearls, rings, watches, and other jewellery given to the wife to be worn as ornaments of her person only: Graham v. Londonderry, 3 Atk. 394. Old family jewels, however, of the husband, though worn by the wife, do not constitute part of her paraphernalia, unless she has acquired them by gift or bequest: Jervoise v. Jervoise, 17 Beav. 566. The wife has no power to dispose of her paraphernalia during her husband's life (1 Bright, H. & W. 287.) The husband, however, may by act inter vivos dui'ing the life of his wife, dispose of her paraphernalia, either by sale or gift: 1 P. Wms. 730; Wilcox v. Gore, 11 Vin. Ab. 180, PI. 19; Northey v. Nortltey, 2 Atk. 78; Seymore v. Tresilian, 3 Atk. 358, 359, and see Hastings v. Douglass, Cro. Car. 344. He cannot, however, dispose of them by will (lb.), but if he does so and confers other benefits upon the wife by his will, she will be put to her election between her paraphernalia and the beneChurchill v. Small, 2 Kenyon Rep. fits she may take under the will part 2, p. 6. The paraphernalia of the wife, such as jewels purchased by the husband and given to her after the marriage, are liable to the debts of the husband: Campion v. Gotten, 17 Ves. 273, and see 2 Yes. 7; Ridout v. The Earl of Plymouth, 2 Atk. 104. In the administration of assets, however, the widow's claim to her paraphernalia is preferred to general legacies: Tipping v. Tipping, 1 P. Wms. 730; Snelson v. Corbett, 3 Atk. 369. Hence she is entitled to have assets marshalled in all those capes in [ * 622 ] which a general legatee would have that * right, viz., as
:

against the heir: see Tipping v. Tipping, 1 P. Wms. 729, said by Lord Hardwicke to be "a leading case followed by the Court ever since:" 3 Atk. 495. See note to Aldrich v. Cooper, 2 Lead. Cas. Eq. jjost. Where, however, a husband only pledges the wife's paraphernalia, and dies leaving a sufficient estate to redeem the pledge and pay all his debts, she is entitled to have it redeemed out of his personal estate even to the prejudice of legatees: Graham v. Londonderry, 3 Atk. 393. The widow may bar her right to paraphernalia by settlement

88

mi. mi:

y.

TENANT.

* 023

[Vholmely v. Cholmely, 2 Vera. 83), and if her husband bequeaths to her her paraphernalia for life, and she dies without claiming them, as paraphernalia, she will, it seems, bo presumed to have elected to take them under tbo will, and ber executor or administrator will not bo entitled to them: Clarges v. Albemarle, 2 Vera.
247.
It must be borne in mind that where articles such as ordinarily constitute paraphernalia are given to the wife, either before or after marriage, by a relative or friend, they will be considered as given to her separate use, in which case, as we have before seen, she may

dispose of them as a feme sole, and they will not be liable to the Thus, in the leading case of debts or disposition of her husband. Graham v. Londonderry, 3 Atk. 3U3, the cpiestion in the cause between Mr. Graham and Lord Londonderry was, whether Lady Londonderry, then the wife of the plaintiff, but originally the wife of the then late Lord Londonderry, was entitled in her own right, or as paraphernalia, to particular jewels thereafter mentioned. First, as to diamonds given to her by Governor Pitt, her husband's father, and which were a present to her on the marriage with his son, Lord-Chancellor Ilardtcicke said, "This Court of latter years has considered such a present as a gift to the separate use of the wife, and I am of opinion she is entitled in her own right." The next question was as to four diamonds set about the picture
of the late

Kegent of France. Lord Londonderry returned from France, and delivered this picture to Lady Londonderry, and said at the same time it was a present sent to her by the Regent of France. ^Vith respect to this, his Lordship said, " If this be a present from the Regent of France, it falls under the same rule, for being a present from a stranger during the coverture, it must be construed as a gift to her separate use, though I do not think it so clear a See also Lucas v. Lucas, 1 Atk. 270; Brinckcase as the others." man v. Brinckman, 3 Atk. 3 J4, cited. Sed vide Jervoise \. Jervoise, 17 Beav. 566. * Gifts also from the husband to the wife may be made [ * 023 ]
(

to

and not merely

her separate use, where they are made to her absolutely See to be worn as ornaments to her person only. Graham v. Londonderry, 3 Atk. 3D3, where Lord Eardwicke says, "I have indeed admitted a husband may make such gifts, but where he expressly gives anything to a wife to be worn as ornaments of her person only, they are to be considered as mere paraphernalia, and it would be of bad consequence to consider them as otherwise: for if they were looked upon as a gift to her separate use, she might dispose of them absolutelv, which would be contrary to his intention." See Grant v. Grant, 34 Beav. 023; 13 W. R. (M. R.) 1057. In re Breton's Estate, 1 7 Ch. D. 410.
[Doctrine of
Wife's Separate

Property Restated.

From
S9

the

* (J23
earliest times

HULME

V.

TENANT.

downward the law, as administered by the common law courts has made the husband the head of the family and has
vested in

him

a life interest in his wife's realty,

and the absolute

her persuing or
lawsuits

ownership of her personal estate in possession, but not cf This has made her incapable of sonal rights of action. being sued alone, so that he must join or be joined in all due from and to her. reo-ardinoo her own effects, and debts o

and her personal rights and wrongs. One of the consequences of this is that she can bind herself by no contract and her formal undertaking to do so is void. Equity as administered in the equity tribunals, grew up side by side with the law of the common law courts, and its rules fnrnish In consequence of this many a remedy for many of the hard cases. rules have been established in equity looking to the protection of
the wife's property.
If then, parties who are about to be married desire to be governed in their pecuniary affairs by rules different from those of the common law, and especially if they desire the woman to retain the ownership of her property and the right to control it, or to retain any other power of contract, the rules of equity, permit them to express

their wish in an agreement. In nearly all of the United States, and of late in England, there has been passed statutes, which to a greater or less extent endow the wife, at law, with rights and powers before available to her only And they at the same time generally relieve the husband in equity.
of the obligation to pay the wife's ante-nuptial debts. Generally, a trust for the sole and separate use, can be created only for the benefit of a married woman or one in immediate con-

templation of marriage: Lindsay v. Harrison, 3 Eng. 311; Apple In Pennsylvania, it is now considered v. Allen, 3 Jones Eq. 120. settled that a seperate use trust cannot be created except for a married woman or one in immediate contemplation of marriage, and that it ceases on discoverture and does not revive on a second marriage: Bush's Appeal, 9 Casey, 85; Freyvogle v. Hughes, 6 P. F. Smith, 228. Some of the States follow the English rule established in Tullett v. Armstrong, and adhered to by a long list of subsequent decisions, that a valid separate estate could be created for the benefit of a woman, unmarried at the time, which would come into active operation whenever a marriage took place, and which would not cease entirely upon discoverture, but would revive and again take effect upon a subsequent marriage: Waters v. Tazewell, 9 Md. 291; Shirley v. Shirley, 9 Paige, 363: Staggers v. Mathews, 13 Rich. Eq. 154; Fellows v. Tan, 9 Ala. 1003; Beaufort v. Collier, 6 Humph. 487; Fears v. Brooks, 12 Ga. 197. The effect of the separate use trust, which is in direct contravention of the principles of law, is to enable a married woman to acquire property independently of her husband and to enter into con-

90

HULME
tracts,

V.

TENANT.

023

to incur liabilities in reference to such property and disas if she were a feme sole. The language which will create a separate trust has been the In all cases, however, there subject of some nice distinctions. must be a direction that it shall bo for her sole, separate or inde-

and
it

pose of

pendent use, or in equivalent terms show an intent to exclude the husband. In like manner, in order to create a fetter or restraint on anticipation, there must be positive words, or a manifest intention to re-

though a creature of the Court of Chancery, cannot be dispensed with by the court, even where the interests of the married woman might require it. The subject of trusts for the sole and separate use of married women is one of practical importance. Many of its principles are Its peculiar, not extending into the other departments of the law. difficulties grow, in the main, out of an almost constant blending of law and equity, and out of the interpretation of new statutes.]

strain the power of disposal. The restraint on alienation,

91

* 625

CHESTERFIELD

V.

JANSSEN.

*624]

*EARL OF CHESTERFIELD
JANSSEN.
February
4th, 1750
ves.

v.

SIR

ABRAHAM

1.

[reported 2

125.]

[S. C. 1 Atk. 301, 1 Wils. 286.

Post Obit Securities Catching Bargains with Heirs and Reversioners Confirmation.] A., aged
5000/.

Expectants
borrows

thirty,

from

B.,

upon

the security of

a bond in

the penalty of 20,-

000/., conditioned for payment of 10,000/. if A. survived C, his grandmother, from whom he had great expectations, but not otherwise. A. survived C. a year and eight months, and soon after her

for payment of 10,000/.

ing

death executed a ne'w bond in the penalty of 20,000/., conditioned to B., which he gave to B. on his deliver-

up

to

him

the

former bond

to be cancelled.

bill

being filed by the executors of A. to be relieved against the

latter bond, as given

upon a usurious

contract,

scionable bargain, the Court teas of opinion that the contract

and an unconwas

not usurious, and, without giving any opinion whether the transaction

was such as

the Court ought to relieve against, as

an un-

conscionable bargain with a person dealing with his expectancy,

held, that the acts of A., after the decease of his

grandmother,

a confirmatian of the original transaction, and gave only against the penalty of the last bond. relief

amounted

to

The

state of the case

upon the pleadings and

proofs, as far as

it

material for the consideration of the Court, was shortly this.

was John
to a

Spencer, in 1738, being possessed of an income of 7000/. per an-

num, and
[

of a personal estate in plate, jewels,

and furniture,

* 625

great value, and having contracted a debt to the amount of 20,000/. to * several persons, mostly tradesmen, by whom

he was pressed, and which he was desirous to pay

purpose.

off,

pro-

posed to borrow money, and particularly a sum of 5000/. for that

92

CHESTERFIELD

V.

JANSSEN.

G26

As ho had
borough,
if

a well -grounded expectation of a great increase of

fortune on the death of his grandmother, the Duchess of Marl-

ho survived her, he resolved to contract thereon.

He

was above thirty, originally of halo constitution, but impaired; and, although afterwards ho lived more regularly, yet he was addicted to
several habits prejudicial to his health,

She was seventy-eight,

ful of her health.

of a

which he could not leave off. good constitution for her age, and care-

Ho sent to a market a proposal, which he supposed would easily meet with a purchaser, as it was natural to expect, in common course, that his grandmother should die first, though she was a good This proposal was, that if any old life, and he but a bad young one. one would lend him 5000/. ho would oblige himself to pay 10,000/. at
to be totally lost
if he survived her, but This was rejected by several knowing persons as not sufficiently advantageous, as it was at first by the defendant, but afterwards accepted by him; and a bond of
if

or soon after the death of his grandmother,

she survived him.

pay 10,000/., was given on those terms. The Duchess of Marlborough died the 1 Sth of October, 1744, and in the mouth of December following, on the defendant's delivering to Mr. Spencer the bond above mentioned to be cancelled, ho executed a new bond, whereby he became bound to the defendant in the penalty of 20,000/., conditioned for payment to
20,000/., conditioned to
[ (e)

the defendant of 10,000/., with lawful interest, on the 19th of April

then next; and at the same time executed a warrant of attorney to

empower
Bench,

judgment

to

be recorded against him in the King's

at the defendant's suit, for the said 20,000/.

on the said bond.

The defendant, by virtue of the said warrant of attorney, caused a judgment to bo made out on the said bond against Mr. Spencer,
at the defendant's suit, for the said 20,000/., to be recorded in *the King's Bench of Hilary Term next ensu- [*626
in<r

the date of the said bond.

In the month of December, 1745, the defendant, by tho invitation

of Mr. Spencer, being with

him

at his

house

at

Windsor, he, on the

for 1000/.

on Hoare and Company, in part of the defendant's debt, and on the 21st of March following sent the defendant 1000/. more by his steward.
bill

14th of that month, gave the defendant a

On
death

the 19th of June, 1746, Mr. Spencer died, but before his

made
(e)

his will,

and

after

payment
is

of his debts
taken from
1

and
93

legacies,

This statement between brackets,

Atk. 301.

* 627

CHESTERFIELD
all

V.

JANSSEN.

gave

the residue of his personal estate to be at bis son's dis-

posal, the present Mr. Spencer, provided

he

left

no younger

child,

and appointed the

plaintiffs to

be guardians of his son, and also

his minority.

executors in trust for

him during

The

executors of Mr. Spencer, finding his specialty debts were

very considerable, and that such as were upon simple contracts only, which likewise amounted to a very large sum, would receive

through the deficiency of the testator's assets, after payment of such sums as were really and bona fide due on specialities, brought a bill to be relieved against the defendant's demand, as being an unconscionable one, charging that the condition stipulated by his security was absolute and independent of any
but
little

satisfaction

other contingency than that of a grandson of thirty years of age surviving a grandmother of eighty; and as the period or point of

time limited for the payment (which was in one month after the death of the duchess) could not, by reason of her great age and infirmities, be removed to any great distance, but was every day approaching, and in fact happened soon after, so the requiring such a large sum as 10,000?. for the forbearance of 5000Z. for so short a

was a most the approbation meet with usurious contract, and such as will never or countenance of a Court of equity, especially where the demand is made upon the assets of an insolvent person, to the prejudice and defeating of his other just and honest creditors, and * 627 ] of an infant heir and residuary * legatee; and that the [ executing a new bond to the defendant after tbe death of
time, being at the proportion of 200Z. for every 100Z.,

the Duchess of Marlborough,is only a continuance of the former trans-

and partook of the original fraud; and that, being an unrighteous and usurious bargain in the beginning, nothing which was done afterwards could help it; but on the contrary, defendant, on acquiring such new security and judgment, and thereby seeking to conceal the true transaction, did, as far as in him lay, add to the first fraud, and ought to be restrained from taking out execution on his judgment till the Court have first inquired into and determined upon the fraud; and therefore, it is prayed that the defendant may be adjudged
actions,

by the Court to be a creditor of Mr. Spencer, only for such sums as he shall appear to have bona fide advanced, with interest from the time of advancing the same, after deducting what he hath received; and that he may be decreed to come in, and receive a satisfaction for the residue of such principal sums only, and interest, pari passu
94

CHESTERFIELD

V.

JANSSEN.

* 628

with Mr. Spencer's other creditors, according to tho nature of his demand; and for an injunction to stay his proceedings at law till
the hearing of the cause.

July the 21st, 1747, the injunction was continued upon the merits
till

the hearing.]

Mr. Noel, Mr. Clarke, Mr. WiJbraham, and Mr. Croivle, for the
plaintiffs.

This case

is

of great importance to the estate of Mr. Spencer, but

The bill is to be relieved against an exordemand, on the known terms in a Court of equity, payment of principal really advanced, and legal interest. There are three general points to be determined. First, how that contract would have stood if property brought in judgment in a Court Next, what of law, and considered merely upon legal principles? the fate of it ought to be, in a much stronger degree, in a Court of
of greater to the public.
bitant, unconscientious

equity,

when examined by principles of equity? Lastly, the subse quent transactions relied upon in the answer as a ratification of the
original bargain.

As

to the

first, it is

not good in point of law, and thereis

* 628

fore usurious.

Oppression of this kind

almost of as an-

cient date as the use of a

money as a medium of trade, and usury of much more innocent nature was against the principles not only of Lord Coke says, the canon law, but of the common law of the land.

man being found guilty of usury after his death, goods were forfeited to the crown; although it is now altered by several statutes, which confine it to such a quantum, allowing a certain moderate profit for the use of money: the difference, therefore, between usury and interest is, in specie, nothing butingradu.
in 3 Inst. 151, that a
all

his

Though

tho severity of the

common law
It

is

changed, the nature of

this country,

things cannot bo changed.

was the constitution of

and is so, that no gain should be exorbitant on the loan of money; and therefore it is immaterial whether it falls within the statutes or
no,

but this case does.

Where such
itself,

a contract is originally for the

loan of money, and exceeding the legal allowance,

the Act of Parliament

it is rescinded by though attended in some measure with a chance, being construed a subterfuge and evasion of the act; for, if it may bo extended to one life, it is difficult to tell where to stop. The legislature took a different method formerly; in tho first acts describing minutely what species should be allowed, confining it to

95

629

CHESTERFIELD

V.

JANSSEN.

a direct loan of

money

for illegal gain, or sale of

goods or merchan-

dise to pei'sons in necessity; the specifying whereof introduced en-

deavours to evade the particular kind of usury described. Therefore, the 21 Jac. 1, c. 17, is in general terms; in consequence of
which, courts of law were vested with a kind of equitable jurisdiction, to

consider the circumstances of the case, stated as particularly

as in bills of this Court.

The

intent of the parties at the original

communication is considered even by the courts of law as decisive; and where that is for a loan of money, or colourable sale of goods, whatever is thrown in of a different kind, it is usurious, otherwise not; Reynolds v. Clayton, Mo. 397, and Becker's Case there cited. Next, wherever security is taken for a larger sum than is
[

* 629

* really advanced,
liver himself

it is

usurious

unless the party

less,

may

de-

therefrom by paying a

or by doing

some

collateral act.

by which

(as it is insisted) the lender

it

The throwing something hazardous into the bargain, might, in some event, have
out of the statutes, and seems to have
7, c. 8,

lost the whole, will not take

arisen from the statute 11 H.

to

keep out of the

v.

acts:

telling how far one might go Mo. 397, and Button v. Doivnham, CroEliz.
v.

642; Burton'' s Case, 5 Co. 69; Roberts

Cottrel

Trenayne, Cro. Jac. 507;

Harrington, Brown] ow, 180; Fuller's Case, 4 Leon. 208,

Noy. 151, 2 And. 15: and Mason v. Adby, Carth. 67, 3 Salk. 390, Comberb. 125. The only exception is the foenus naidicum, or bot-

tomry bonds; which,

parties here

for the sake of the public

and benefit of

trade,

are held not within the statutes of usury.

The only view

of the

was a loan of money, and security

for double the

sum

advanced, subject to the contingency; the borrower. could not deliver

himself from the payment; and the Court will then lay everything
else out of the case.

In the calculation of

lives, it is difficult to

say

where the true rule is: Halley and Newton have varied; but, on the first sight, one would think the lender had here greatly the advantage, from the disproportion; so that on the face of it, it would be deemed a subterfuge in a court of law. Suppose the bond existing, and an action brought by the defendant, after the grandmother's death, and the statute of usury pleaded; the parties may 'advance matters dehors; and it would be determined to be within the statute, which is very extensive, and, though penal, to have a liberal conThe terms on which men communicate to borrow and struction.
lend, cannot alter the nature of the case.
is

The quantum

of the risk

not material, nor did the transaction proceed on the comparison of

96

CHESTERFIELD
lives;

V.

JANSSEN.
if it

*630
defendant was sat
support by proof,

or health, or constitution; but

did, the

isfied of the

contrary to what he

now endeavours

to

as to the constitution of Mr. Spencer.

As to the second point: Courts of equity, not being tied up to rules consider questions of this kind in a more extensive man*630 ner, and in general have avoided laying * down any par|
|

would (like old statutes of usury) teach persons how far they might safely go; but declare, that wherever there is a spark of oppression the motive on one side, necessity 1<> apply for money, on the other, a covetous passion for undue lucrethey always relieve; not, indeed, setting it aside, but by giving what is really due. Their principles have been established gradually, and with deliberation; and, if one or two judges, who presided here, have differed and been unwilling, they have at last been comThere pelled by the force of precedents and the growing evil.
ticular rule, as that

were many cases for relieving against unreasonable bargains in case of young heirs in the time of Lords Ellesmere, Bacon and The first case afterwards is Waller v. Dalt, 1 Ch. Ca. Coventry. In 276; which was introductive of Barny v. Beak, 2 Ch. Ca. 136. Berny v. Pitt, 2 Vern. 14, Lord Jeffries held, there was no difference,

whether

it

was

for
is

money

or wares; that the

first

thing pro-

money, and that of wares put secondarily only; and reversed Lord Nottingham!'s decree, who had not been long in this court when he took that distinction. In Birney v. Titson, 2 Vent. 359, Lord North affirmed the decree, though he showed an unwillingness, by adding ne trahatur in exemplum. In Batty v. Lloyd, 1 Vern. 141, Lord North dismissed the bill. In Nott v. Hill, 1 Vern. 107, he would not relieve, and reversed Lord Nottingham's decree; but on a bill for specific performance of the same agreement, 1 Vern. 271, he seenfs a little to remit that rigour he had at first, and would not countenanco the practice. But Lord Ardglasse v. Muschamp (/), where there was both a risk and confirmation, shows he had entirely got the better of it, from the force of precedents. Other cases were before Lord Jeffries and Lords Commissioners, 1 Vern. 467, 2 Vern. 77, 78, 121, 402. So Twishibited by the statute
for the loan of
tleton v. Griffith, 1 P.

Wms.

310.

In Curwyn
like

v.

Milner, 3 P.
to

Wms,
have
In

293,

n.,

Lord King, though he seems,

Lord North,
first,

brought legal notions into this court at

(/) 1 Vern. 237.

yet relieved.

* 7

wniTE ON EQUITY.

97

* 632
[

CHESTERFIELD
]

V.

JANSSEN.

* 631

Lawley v. Hooper; 19th November, 1745 (g), an annuity *of 200/. was charged on the estate of an elder brother, as a
life

provision for the

150/.,

of a younger, who,

when

in distress,

granted
but

part thereof, to Davenant for 1050/. seven years' purchase,

with a proviso, that the vendor might repurchase on notice;

there was indorsed, that
it

more than originally advanced: your Lordship held it a mortgage and redeemable; and that the 75/. more, when the thing was the worse for the The principle on which the Court has gone wear, made it unfair.
should be on paying
75/.

an unconscionable bargain; and, it being contrary encourage it, such contracts are generally founded in oppression, by taking advantage of the borrower's necessity, which is the general ground of the malignancy of usury; they are If of public mischief, by encouraging extravagance of young men. stopping the progress of it, as a growing evil, be thought for the public good, and no real inconvenience in laying an embargo on These contracts this sort of trade, this is nodus dignus vindice. Men thereby are generally by persons having an expectation only. pledge their estates before they have them, consequently before It is too true, that men generally have not they know the value.
in these cases is to public convenience to

so

much regard
felt

to creating reversionary inconveniences,

when they

consult present gratifications;

know not how to estimate what they

never

by which their estates, like their pleasures, and several poor creditors commonly fall with one of those prodigals. There is no remedy immediately, by our law, against this extravagance, as by the Roman law by curatores, interdicting a man not of understanding sufficient This extravato manage his own property, from the use thereof. gance has established a trade of annuities and post-obits, universally
ihe benefit
of,

are gone before they enjoy them;

exclaimed against.
is

of a man who falls into this method, he ruins his estate without spending half; for a borrower on post-obits never puts it out to interest, and many of these are purchased at above half. Our sons may at this moment be doing the same, and all we have laboured for

The ruin
off;

declared no to be far

* 632 ]

may be gone

just after our * death.

It is

on the principle

of public utility that Courts of equity have

than the law.

that he

gone further So from the general inconvenience, praerniums for

but the
office fit for

places are not allowed, because there the office falls to the man;' not
is fit for it,

him.

So in marriage bro-

{g) 3 Atk. 278.

98

CHESTERFIELD
cage bomls, the
first

V.

JANSSEN.
v.

* 633
it

of

which was Hall

Potter (h),

is

not for

the Bake of the party seeking relief; or bonds to have so much a year out of a particular office; or by clients to agents pending suit, although the party to whom it is given appears meritorious; or by

young man just after twenty-one to his guardian. In Sheply v. Woodhouse (i), 17th March, 1742, a bond by a man and woman to intermarry iu thirteen months after her father's death, and for a reasonable settlement the woman above thirty, and living in her the Court went on public inconvenience, as tending father's house
a

and encourage disobedience to parents. The cases are not confined to young heirs young remainder-men are as much the object; and the opinion of Lord Talbot was, that the relief of this Court should be extended to meet such contracts; they are grown into a sort of stated traffic, which tempts young men further than their vices. Lord King indeed said, if this was res nova he might have had some difficulty; and it may not be easy to draw the line. If a
to deceive
;

young heir wanted to portion a daughter, or a sum to put into trade, buy books, or for such occasions, equity might not interpose; but where it is to feed extravagance, the Court will stop there. The same set of men are generally employed in such contracts; and a catalogue of some of their fortunes is nothing but pieces of ruin No proof of fraud or undue advantage is out of several families. requisite: the case speaks for it, and otherwise it would be saying
the Court will not relieve at
nesses are not called
light a
in.
all,

as to such secret transactions wit-

and unreasonable, and in that Court of equity calls it a fraud, arising from avarice on one side, and distress on the other; and will relieve on the same prinSo by ciples as in Sir Thomas Meere's Case, 1 Vera. 465. Lord Talbot, in Bosanquet v. * Dashwood, Ca. t. Talb. 40. [ * 633 ] That it was not sought by the defendant, will make no
It is unjust

difference; the proposal generally

tress.

coming from the person

of
it,

in dis-

The defendant could not be ignorant

or of Mr. Spen-

cer's expectation

and dependency on his grandmother; his own witness, Richard Backwell, saying that it was hawked about that Mr. Spencer wanted money on those terms; and the necessity of
concealing
it

from

her,

made him

a slave to the person with

whom

he treated.
heir; but
(ft)

It is literally

true, that he was neither young nor an

affairs.

he was not old enough to manage his

P. C. 76, 1 Eq. Ca. Ab. 89.

Twistleton

Show.

(t)

2 Atk. 535.

99

* 634

CHESTERFIELD
(k);

V.

JANSSEN.
It is not

was thirty-four
generally
in

yet was his conduct relieved against.

though called contracts with young heirs; for an heir cannot sell a reversion: though he may Mr. Spencer was quasi estop himself by fine, he cannot grant. hceres, expectant though not apparent: the Duchess in loco parentis; and his dependency on her, from her constant declarations, a parental dependency, and known so to be by the defendant, who on that exthe
case
of
heirs,

pectation built this contract.

nesses, prove his necessity.

has been held

sufficient.

The contract itself, as well as witThe bare applying to pay two for one "Poor " and "rich " are relative terms:

and however large a man's estate, if he cannot pay a debt, he is literally necessitous; and otherwise he never would have granted on Comparing post-obits, or risked his expectations on such terms. the ages, the defendant cannot be said to run any risk: and the defendant has not shown that the contract moved on a comparison
of the health of each:

nor

is

there any certainty in judging, on

these cases, of lives.

As

to the third point, all the other acts of

like circumstances, as originally,

Mr. Spencer were, when

under the
ability to

proceeding from his

in-

His acquiescence cannot be considered a ratification, but may be excused by his looking on it as a debt of honour and a sort of wager. The bond and judgment are an evidence he

do more.

could not pay; he would go as far as possible; no money could be raised but by annual rents, whereas an immediate [ *634] * payment was to be made; and the borrower is a servant
3 P.

Like Curwyn v. Milner (19th June, 1731), and Wiseman v. Beake, 2 Vern. 121, and Lord Ardglasse v. Muschamp, 1 Vern. 237, where stronger instances of So, in some of the prize causes in the confirmation did not avail. Exchequer, some repeated confirmations were held rather an aggraCole v. Gibbons, 3 P. Wms. 290, differs materially from this; vation. for there a person under no distress, renounced a relief he might
to the lender.

Wms.

293,

n.,

have had. Although the contract

is

usurious in law, the proper way

is to

come
nor

into equity to stop this species of traffic,

which

is

of public incon
this evil,

venience; no act of parliament could be

made

to

meet

any rule that would not be

inconvenient in particular cases.

The

kingdom does nothing more than what has been done in other ages and nations, as appears from the (k) See Twistleton v. Griffith, 1 P. Wms. 310.
policy of law and equity in this

100

CHESTERFIELD

V.

JANSSEN.

* (YSh

Macedonian decree; Digest, lib. 14, tit. 6, '"Law,** 1. &c, where, though the words are filius familias, it shall not be confined to that. There ought, therefore, to be relief, on payment of the real principal and interest. Mr. Attorney -General (Sir Dudley Rider), and Mr. Solicitor Gen This is indeed a matter of eral (Mr. Murray), for the defendant.

importance, being a question whether a man's

in full senses,

own act, without

fraud,

and having the absolute disposal shall bind him. If (as has been argued) (here was no otjier way in which the Court could assist the preservation of families from ruin, it is better the law should be wrong in itself, than uncertain. So far as a Court of equity can prevent such destruction by general rules, it will lay down such rules, but will not endeavour to preserve a weak or wicked man; nor say, that by the rules of equity an honest and wise man cannot be protected in his honesty and wisdom. The question of law must arise out of the fact; the particular question of equity must depend on the fact also, considered under all its extensive circumstances, taking in the convenience and inconvenience, but still the ground to go upon must be made out by evidence. * It will hereby be shown that this is a fair, [ * G35] honest, aDd honourable contract. The circumstances come under these heads first, the character situation, and figure of life of the obligor; secondly, the same asto

the obligee; thirdly, the motive or reasonableness thereof, inducing

the obligor to solicit such a bargain; fourthly, the

acting

manner of transand concluding; fifthly, the fairness and equity of the price, from the chance, under all the circumstances, according to the probability at the time and the event, that has happened: sixthly, the opinion the obligor always had of this. As to the first, it is material in all cases. His understanding is not charged by the bill to be weak, or likely to be imposed on, or that he was imposed on. He was turned of thirty; no heir of any sort, in which the term is applied in these subjects; for if one, living with his father, is considered as heir (although nemo est hceres rire >it is) he had no father, but was himself father of a family: he was in no state of quarrel with any relations; known never to have gamed, which, it is proved, he hated; and he had given up some former extravagances, and lived more temperately; was his own
master; possessed of a fine family seat, with furniture suitable to
his

rank and figure; 7500/. per annum for

life,

besides present per-

101

636

CHESTERFIELD

V.

JANSSEN.

sonal estate, contingent reversions, and hopes from his grandmother. The pressure on him for his debts of 20,000/. (it appears not how

contracted) was from tradesmen. Justice obliged him to pay them; it would be scandalous not to do so, and prudence required it, lest
it

might

alter his

grandmother's opinion of him.

He must have

paid this by the annual

his grandmother:
of the best

profits, joint or single annuities for his life,

or selling his personal estate, reversion, or the chance he had from and this would have been, probably, the opinion

and wisest friend he had. None would advise the selling his personal estate, family pictures, &c, which would be deThe annual profits would not claring himself bankrupt. * wait without impatience * for creditors his would nor do it, 636 [
]
it.

As

to annuities (the

way taken by

a tenant for

life

who

wants money for particular purposes), it certainly is not a beneficial way of contracting. It has appeared frequently, that if a man sells an annuity for his own life, so that he wants to sell it, the price is about seven years' purchase, supposing him of middle age and in good
health;
if

he was to buy an annuity for his own

life,

the same

man

gives fourteen or fifteen, and in 1743 they went so far as to give If there is any sixteen or seventeen, which is a great difference.

objection to the
it

in the

Taking life, they make him abate in proportion. common way, he would get but 7000/. for 1000/. per an-

num; taking in the objections to his life, perhaps not 5000/. If he was to sell his reversion in fee, or the reversion of 10,000/. (the interest of which he had for life), if he had no younger children, he could bave sold them for little advantage; nor could he have got anything for his chance under Lord Sunderland's will. Then his only chance to raise money was this, and it was the most reasonable
if fairly done and on reasonable terms; and otherwise his goods might be taken in execution and sold for little value, as generally happens. Next, for the circumstances of the defendant, who is not charged

way,

in respect of his character, behaviour, or

manner of dealing; as, in must be charged and proved. It would have been material also that he had been acquainted with Mr. Spencer (the contrary of which is proved, as far as a negative All can), or a companion in creating the debt and encouraging it.
securities to

women,

their character

The decircumstances, weighing in other cases, are clear of this. fendant is not a person looking out for young men to prey upon;
he did not think
102
it

a beneficial contract, and absolutely refused

it;

CHESTERFIELD
but afterwards accepted
it,

V.

JANSSKN.

638

on particular application and pressing.

Mr. Spencer himself, in private, fixed on what he thought the fair

price, and does personally, and by agents, propose these terms to any who would buy; which were refused by several, only because

not advantageous.

*The motive
As
to the

has been observed on already. manner, it is proposed, in the first moment,

If
it

* 637

as a conditional bargain.

turned out against the defendant,

for aim, they

there was certainty of a loss:

that there

if

might

live so

long as

would bo
is

a very improbable chance of gain.

is

No undue

advantage

taken, for what

it

proposed

is

simply accepted.

whoever deals in must have regard particularly to the constitution of the person, manner of life* and age. If the life is bad, the company will not insure at all: all circumstances must be considered, and it is enough to go on probable opinion. The bargain supposes an inequality in their lives, that the grandmother was most likely to die first: she was of good health, and took care of it; Mr. Spencer the contrary, from his course of life. The insurance offices always go on opinion, and inquire into a general account; so that, if a false
to the equality of

As

as a bargain of chance,

or buys lives

account
course,

is

given

in,

actions are frequent in Guildhall for the fraud.

he would not alter his and said he did not desire to live .longer than his constitution would let him. In all these chances, if a man has gone through such shocks to his constitution as he did, they deduct two years' purchase. It was the opinion at that time that he was a bad life; and it appears negatively that it could not be insured at hi. per cent. Taking it on the event, she lived six years after; he survived her but twenty months. Supposing his life was insured at hi. per cent., which is the insurance in case of a person in the best health, on a computation of the value of lives and terms for years, the defendant is gainer about 3000Z., and might have absolutely lost it, if she had lived many months longer. Interest of the interest, which would then be lost, must be made in all computaIt is proved, that, notwithstanding advice,
It is so as to the burdens to be borne between tenant for and reversioner, which is rather too favourable to the tenant for life. The defendant has proved, that none would give that, or so much as he did: the plaintiffs have proved nothing of that, which would have been * material to show the value [ * G38 ]
tions.
life

of the contract.

The

disproportion, then, of the risk will

103

* 639

CHESTERFIELD
it

V.

JAfcSSEN.
this

not make
law,

bad contract: nor does

if

Court consider bargains

in the nice scale of exact quality; nor adopt the rule of the

Roman

was one-half under value, it was set aside. Lastly, his subsequent acts as paying part, writing the letter himself to confess judgment, and taking every step after her death to carry it into execution would not, perhaps, be of much weight if they were not consistent with his private opinion: his declarations in private being that he was honorably and fairly dealt by. The judgment was freely given, and not complained of afterwards; so that, if it could have been set aside originally, it cannot now; and, being in his senses, he might have released any demand. A release in terms of all his right to set it aside would have operaa bargain

by which,

ted in point of law.

Then

is it

not so in equity?

release, in-

deed, may, like any other contract, be set aside in this Court; but
that

must be on new imposition

in obtaining the judgment.

Things
ab-

did not remain in the some situation, for

solutely due; nor

now

the

money became

was he under the same

In Cole
v.

necessity;

and might have

disputed

it

then.

Gibbons, 3 P. Wins. 290, the contract

had not a possibility of being fair; yet there was no relief, because it was confirmed with open eyes. In Standard v. Metcalf (Novemplaintiff lived with the defendant, her uncle, and soon after coming of age was prevailed on by him to settle her es-

ber, 1734), the

tate upon herself for life, remainder to her issue in tail, remainder to her uncle and his heirs: she afterwards became a lunatic. The
it to be hard, and an imby her uncle, acting as guardian, there being no consideration, nor any occasion for it, not being for marriage: on a bill to set it aside, the defendant insisted it was fair, and that, after the settlement, she by will, to which he was not privy, had given the estate in the same way. Lord Talbot thought it an extraordinary contract, and unfair, though no proof of fraud, and said, [* 639 ] if it depended on the settlement * only, he should have relieved; but the will had confirmed it, which took off that ground to set it aside: on appeal it was affirmed, with this variation only, that as the bill was by the committee it ought not to

transaction was thought on the face of

position

bind the lunatic, but should be without prejudice to her, if she should become sane, and seek to set it aside. The will did not
operate there, but only showed a confirmation.
degree, does the subsequent act here.
So, but in a stronger

As

to the use, in fact, to

which

this

money was

applied,

it is

not

104

CHESTERFIELD
material to the defendant to
tide;
it

V.

JANSSEN.

* G40
it

show

that,

having advanced

bona
that

but what materially distinguishes this from other cases,

to the

is

was applied

payment

of the borrower's tradesmen.

To consider next
putting
it

the question of law

is

whether this contract, as

If so,
it

it

stood originally upon the bond,

void at law.

is

indeed

on a clear foundation.

Mankind

will

property, and

know

the construction of the statute

have a rule for their and it will be

;

needless to argue as to the consequences in this Court; for one can

not,

with his eyes open, make an agreement contrary to that statute.

for a contingency, there is

As a bargain
then, to this,

no objection

for all sorts

of contingencies are the subjects of a legal contract.

Any

objection,

must be on the Statute of Usury, which is not frequent in a Court of equity. No contract is a contract on usury within By the common, taken the statutes which was not so before them. from the canon, law, a notion long prevailed, that it was not lawful to take an interest for the use of money, which prevails in Roman Catholic countries to this day; and it is astonishing how they should think money might not be a commodity to be used as well as any In other. This notion kept that commerce out of the world. Lord France, they let out money to interest in another shape.
Coke, in 3 Inst., labours hard to show, that taking any interest
is

contrary to nature, and endeavours to prove

it

also contrary to the

is

law of Moses

but the age

is

grown
;

wiser,

and the law

altered.

Any sort of premium was usury now, an illegal premium Premium is a word more extensive than interest and
;

only.

usury

is

taking * a higher premium than the law allows

* 640

for the use of

money.

The

statute 37 Hen. 8,
it;
c.

c.

9, is

an

act against usury, fixing the rate of

the legislature until 12 Anne,

varied
;

st. 2,

16,

which has been followed by and the rate of interest

and the sense of all the statutes may be taken together. Perhaps it may be a doubt, whether it is for the public good to have any law fixing the rate of interest, or that it should be like other commodities at market (I). Locke's treatise upon the con-

But it least,- make that doubtful. must be taken on the statutes, which comprehend only contracts on usury. There must be a principal sum due, and a rate of hire for the use; if it exceeds the proportion fixed, the security is void, and no artificial contrivance shall evade that law: therefore, on pleading
sideration of reduction will, at
(

I)

The laws against usury were abolished by 17

c.

&

18 Vict.

c.

90,

and 24

&

25 Vict.

101.

105

* 641

CHESTERFIELD
it

V.

JANSSEN.

the Statute of Usury,

may

be proved by any collateral evidence,

where

it

appears not on the face of the contract.

Where

there

is

no principal and rate of forbearance, the. statute relates not to it. At common law, therefore, when usury in general was forbidden, a

Hawkins, contract on condition or peradventure was not within it. C. 82, never disputed as to this point: where the principal may be
hazarded
Contracts on bottomry are not really, it cannot be usury. excepted out of the statute, yet are clearly not within it from the So, nature of the contract, the contingency of the ship's returning. no statute, the discounting notes or bills of exchange is not within the
principal being due which is forborne:
at a
so,

the buying

up

of securities

legal interest
at odds,

iow rate on the estate of may be made, is

a third person, of which more than not within the statute so, a wager
,

which

is,

Button

v.

Downham, (m):

so, of

casual bargain,

Bedingfield v. Ashley, (n)\ so Fountayne v. Grimes, (o), and Long Wharton, (p). Insurance, interest or no interest, is barely a v. wager, and not within it, according to Doddridge, J., in Roberts v. Trenayne (q), and Sharpley v. Hurrel (r). Yet none of these cases but may be turned into such a shift as may be brought within the
statute, if that is the truth of the

agreement; as in bottomry,

* and no risks. Where the princi[ *641 J if it be a mere evasion pal is secured, no contrivance can exceed the rate of interest, which, being forbid absolutely, is forbid on contingency.
cases cited for the plaintiffs prove only, that, where it is but a nominal risk, it is a mere shift and evasion; as in Clayton's, &c. (I),

The

where the demurrer admitted the corrupt agreement, and there was no objection to the pleading. A stress is endeavoured to be laid on words in determining a question of property, from the word "loan,"

&c, made use of in

this case.

If

it is

a loan within the Statute of

Usury, it is material; but a contract on usury is not a loan in its It is true, there is a nature, a loan being that which is gratuitous. and a loan which using, by difference between a loan not consumed
is

consumed.

The

first,

as of a horse,

is

called

"commodatum;"
:

for

lending is not understood to be letting it, if not consumed the other is to be repaid in weight and measure, and is called "mutuum-"
(m) Cro. Eliz. 643~
(n) Cro. Eliz. 741.
(0)
(ji)

Cro. Jac. 252. ?,. Keb. 304. (q) Cro. Jac. 507 (r) Cro. Jac. 208 (1) 5 Co. 1.

106

CHESTERFIELD
but in
its

V.

JANSSEN.

642
to

original

was gratuitous.

But the Court always goes

nature cannot be made

What is a loan in its the substance. This never was proposed in chase by calling it so, nor e contra. being for this concommunication the nature of usury, the original for forbearance ; nor rate no principal was due, tingent bargain
a pur:

which they cannot be from the nature of the contract. In bottomry there is no differit* is called a loan, but not therefore usurious; and
ence between this and bottomry, which is admitted to be a hazardous contract, and good; not because it is for the benefit of trade, but So that it turns on that a material risk is run, and to be paid for. contingency to evade the colourable fictitious, this, whether it is a
statute; for if
it is

so

it is void,

otherwise not.

If

no bargain can

be made of a contingency on a life but what is within the Statute of Usury, it will be a proposition understood by every one. Suppose an action brought, and a plea put in this could not be considered
;

as a nominal contingency,

and to evade the statute. can set aside this legal contract upon Court this Next, whether out of the case, and that arising conscience of arguments jurisdiction of equity [ * 642 proper The latitude. utmost in the
]

is,

indeed, to take every one's act according to conscience, and not suffer undue advantage to be taken of the strict forms of
positive rules.
equity,
all
it

As this is only a ground of any sort of evidence upon by out made be

may indeed

the circumstances;

and on all together the Court cannot say the defendant is guilty of misbehaviour (which is not charged or suggested), or say this no evidence ourdit not to stand. Here is no fraud or overreaching

be presumed: and the amount of the cases cited for the plaintiffs is, that the Court will relieve against

from whence imposition

is to

fraud in this as in other cases. But supposing these points against the plaintiffs, another and a very general question has been made of the first impression viz.,

supposing the transaction good in law and conscience, yet this Court should, for the sake of making a rule, set it aside on principles of policy or political reasoning; for, on fraud, there can be no
case in whicli this Court will not relieve.

No political principle can

be stated on which

should be set aside; therefore, such a ground There may be a diffiof determination is impossible in this Court. It is admitted that no certain one culty to tell what sort of rule.
it

can be drawn, because it would be dangerous when applied to particular cases; audit is, therefore, said, acts of Parliament cannot

107

* 643

CHESTERFIELD

V.

JANSBEN.

be made to meet cases of this kind. This Court does not exercise or assume a legislative power but disclaims it, and never will make
a law to set aside contracts on public principles out of that cause, if good in law and conscience, let the convenience or inconvenience

be what

gencies; yet

The contracts in Exchange- alley were all continwas necessary to have an act (m) to set them aside, although easily proved inconvenient to the public. So, of fair and equal wages, an act of Parliament, 7 Anne, c. 16 (n), was forced to
it will.

it

interpose.

So of gaming

money won
it

at

a fair hazard, without

cheating; this Court never set

aside before the legislature inter-

posed; so that political arguments are never taken into considerThe contract of sailors, selling their shares before ation.
[

* 643

they knew *what they were, could not be set aside here (o). It is true, there can not be a more wretched condition

than to have the rule of property uncertain, misera servitus ubi jus vagum. Lord Digby says, "Set the mark on the door of the house, and let me know that it is wrong, or it is doing it ex post

Where the Curt has gone upon public convenience, it has been in cases defined and ascertained, which it is admitted, this cannot be. It is a misfortune that accounts of Courts of equity are conveyed to the public in loose notes by persons not concerned in the cause, and mistaken, and that general rules are drawn from
facto."

particular premises.

The Court,

in all the cases alluded to, has

off; it

the presumption may be taken depends on the evidence. If a trustee buys the estate himself, the evidence from his situation is sufficient; he has misbehaved, for he cannot be a check on himself, and does not act fairly; but the presumption may be taken off, as if he agrees openly and fairly with cestui que trust, or with the knowledge of this Court (p). Sc, in bonds to lewd women, getting security for nothing; she has grossly misbehaved, and the common presumption is, that she has
inferred a presumption; but in
all,

So, in marriagetaken an advantage; but that may be taken off. brocage bonds: the defendant there has lain such a bias upon himself, that he cannot properly advise; has a power and distress over

the party: this

gain, to give
(m) 7 Geo.
(n)

is

evidence, unless taken

off.

So, in a private bar-

back part of the marriage portion, contrary to the

and 10 Geo.
Stat.

2, c. 8,

Repealed

Law

(o) But see Rochford, 1 Weldon, 2 Ves. 51(i. (p) See Fox v. Mackreth, and note, ante,

2, c. 8. repealed by 23 Vict. c. 28. Rev. Act, 1867. Wils. 229; Taylour v. Rochford, 2 Ves. 281;

How

v.

p. 141.

108

CHESTERFIELD
public treaty,
it is

V.

JANSSEN.

* 644

advantage, because the father

fraudulent, and a presumption arisps of undue may say he will not otherwise agree;
off.

but that

may be

taken

are procured from one

who had

nothing to do with
behaviour, as the
off,

this;

Bargains for money,under which offices the giving or recommending, hi ve but there the presumption, from the misget the office without
leave, as
it,

man cannot

may be

taken

commissions in the army, or a sum of money may be paid out of the trust of an office, as in Mr. Bellamy's case. Another instance is, the setting aside securities to attorneys pending the business, which *was [ *G44 Walmesleyv. Booth, (q) (2nd May, 1741), where Japhet Crook, being prosecuted for forgery, employed the defendant to be his attorney, who was to get bail, money, and probably even evias

where sold with the King's

dence for him, and just then procured him to enter into a bond for 1000Z., for which there was no consideration but for services don<>. This a Court of justice would never suffer, but has relieved on principles of a general nature, that an attorney should not take advantage

from him what he ought not. This Court and a Court of law will, without showing errors, tax an attorney's bill, though settled by the party himself, unless a great acquiescence, or some such matter; it was an unreasonable bargain,
of his client's distress to get

and the presumption was from

receive a gratuity over

his not being at liberty; but

it

has

never been determined as a rule, that a bona fide attorney may not and above, pending the matter. Another
rule insisted on
is this,

that mutual bonds to

marry

shall
v.

be

set
{r)

aside by the Court, though

ever so fair; yet in Atkins

relief

Farr

(February, 1738), your Lordship decreed That rule was taken from Woodhouse v. Shej)ley (s); but your Lordship there said, you gave no opinion what would be the case if the bond was entered into by two persons sui juris, without fathers, or emancipated, having fathers. The ground there was, not that the woman did not know of the bond, which she certainly did; she lived in her father's house, had nothing but from him; they met at night out of the house, and executed this bond; it was held a fraud and imposition on the father, who was made to believe the match was off: it was seducing her from his house, and encouraging her in disobedience; therefore, though she knew what she did, the Court relieved.
(q) 2 (r) 1

on such a bond.

Atk. 27, Barnard. C. Rep. 478. Atk. 287.

(s)

2 Atk. 535.

109

* 646

CHESTEKFIELD

V.

JANSSEN.
it is said,

Lastly, as to the case of post obits,

in

where

sons,

whether

remainder or otherwise, or

filius familias,

not having a fortune or

emancipation of their own, are encouraged in riot and expense, the Court relieves, without evidence, from the particular purpose, because no son, in the life of his father, shall make such a bargain:
but that
is

not the ground of

relief, for

that

may

be de-

from the reason of the ] [ thing, it is the misbehaviour to persons under this description to share in riot and encourage disobedience; which appears from Domat, under the general title " Loan; " and, in another place he says, that on a bargain with filius familias, under such circumstances there may be relief, under such not; not saying but that a son might, for a portion, even when filius familias, do it. As to which an observation arises on the case determined by Lord Nottingham, who relieved against many of these contracts on particular evidence. Lord North thought he went too far; Lord Jefferies, that he did not go far enough, which is not to be wondered at; for, judging upon circumstantial evidence, they might draw different conclusions. Lord Nottingham' s reasons, in manuscript, shew he did not think he was going on the general rule, that a son could not
1

*645

nied, * like all other presumptions;

sell

a contingency.

The

case

is

entitled

Berny

v.

Pitt, 2 Ch.

Rep.

396.

Berny was drawn

to

into several securities for

money,

to be paid

infirm, and kept alive by art; and thus was involved in debts to 5O,O0OZ., or 60,000/., in all which he appeared to be circumvented and beset; most of the money pretended to be borrowed, being raised by delivery of wares, at an excessive price, as wine, hemp, &c, which could not be sold for a quarter of the price; but the plaintiff, from his necessity (his creditors being underhand procured to fall upon him), was willing to get money on terms against which he sought relief. Lord Nottingham first made him pay the principal borrowed, before he would give an injunction, but relieved him as to the rest at the hearing, because, he said, this infamous dealing ought to be suppressed. That the Star Chamber used to punish, and this Court ought to do it; and that no family could be safe if But Pitt prevailed, and the bill against him was this was suffered. dismissed, though he gained about three for one; for it was in the time of his father's health, three years before his death, without any circumvention or practice, upon an express agreement to

after his father's death,

who then was

by some he was

pay

five for one,

* 646

lose the

principal

if

* the son died in his father's

life;

110

CHESTERFIELD

V-

JANSSEN.

047

which shews the ground of the determination 'relieving against those defendants guilty of misbehaviour, yet thinking that a Lord Jefferies, on the proper bargain might be made by the heir.
evidence of that case,

when

before him, laid a different stress, and

relieved against Pitt also.

Tivistleton
v.

Griffith (i),

From that time there is no case, until which turned on the particular fraud and
v.

circumvention.

Curwyn

Milner (u), as

cited, is a

determination

against Lord King's opinion, that bethought himself tied

down by

precedents: but, if it had been entire, he might have been of a dif" ferent opinion; and, in the note in 3 P. Wms., it is misstated " and " It is going or." a great way to say, there can be no instead of
case where a son could
sell a reversion,
is

where the presumption

is

taken

off.

Presumption

evidence but until the contrary proved.

This
erty.
is to

is

not the case of a son; but of one, master of his

is

own

prop-

Cujus dare, ejus disponere. The principle

too large, that this

be set aside because of a want of money on one side, that hold-

ing in every bargain.

Then, as to the prospect of gain on the

He was under no more necessity than any man may be presumed to be who sells his estate, and cannot therefore come into equity to set it aside, because he wanted money to pay debts, and would not otherwise have sold it. The ground of common recoveries is to enable people If it is to be set aside as being to discharge debts by sale of estates. an expectation from a grandmother, the Court must go into very
other, it is a laudable motive provided they act honestly.

minute circumstances.
laid
it

As

to the Court's relieving

upon general

principles against annuities for the life of the seller, the Court never

that such annuities simply were bad. Lawley v. was on particular grounds; the plaintiff was in goal at the time, and fraud infecting the whole; but the Court did not say, no annuity shall be allowed that a man sells for his own life, if so The'reasoning in Batty there is an end of all insurances on lives. 141, was never contradicted. There v. Lloyd, 1 Vern. would be great difficulty was one not allowed to sell * such [ * G47 things and turn into money, but must starve ob hceredis causam. Contracts for contingencies have been admitted; Beckley v. Newland, 2 P. Wms. 182; and in Hobson v. Trevor, 2 P. Wms. 191, a contract for sale of an expectancy was even carried into exeIn Whitfield v. Fausset, 1 Ves. 387, 1750, a mere possicution. Wms. 310. 1 P. (0 () 3 P. Wms. 293, n.

down
(v),

Hooper

(v)

3 Atk. 278.

Ill

* G4S
bility

CHESTERFIELD

V.

JANSSEN.

was sold by tlie heir, nothing vesting in the life of the father and mother; and yet your Lordship decreed a further assurance by the heir; which, if an illegal contract, would not have been done. So, where an officer, going abroad, assigned his future pay (w), a biJl was brought to stop the money in his agent's hands; it was argued, such assignments were not to be endured, because uncertain

and against the public

service,

and should be discouraged, as spendit;

yet the Court thought every one might dispose of his property, and decreed it because not unconscionable, though that was a contingency and possibility; equity going further than the law, which allows as contracts, but equity as conveyances. But what is this public good which is not to be de fined? Is the end proposed by this, that none shall spend above his annual income? That is not to be secured in human nature, or Though the Romans had that law, they were allowed prevented. Is property to be locked up to another gento spend their estates. eration ? for that effect it will have, which is contrary to the principles of the constitution of the legal part of the government; the later books, perhaps for 200 years, giving a reason why the Statute de Donis (13 Edw. 1) is not to be kept and preserved, that mankind may apply their property to pay their debts; and judges have said,

ing one's estate before he has

there

is

great inconvenience in people not being able to

Is the

sell their

end proposed, that a man may raise money on easier terms if this is set aside? The consequence would be directly contrary. If one wants money, and a difficulty is laid upon contracting with fair honest men, he will go into the hands of knaves, who will make him pay for running the risk of the law, and insist on more, when it is understood that he could not *648 make a contingent bargain. * This was not lent to feed riot, ] [ but to get rid of a pressure, which is a reasonable cause, As and, therefore, no ground to set it aside on political motives. rule proceed much less will cannot find out a general to on, the law this Court; and, in every case where equity cannot relieve, it is not

own

estates.

fit

to be relieved.

February
Willes, C. J.

4,

1750-1, the Court delivered their opinion. Absente,

Burnett,
(to)

J.

Upon
v.

the state of this case three points are made.

v.

See, however, Stone

389; Davis liams, 18 Ves. 379.

Ball&B.

Duke

Lidderdale, 2 Anst. 533; M'Carthy v. Goolri, 1 of Marlborough, 1 Swanst. 74; Osborne v. Wil-

112

CHESTERFIELD

y.

JANSSKN.
contrary to the

* G49
statif

Firsts that the original contract is usurious,

+

utes, as being a greater

premium than the law allowed; and,

so,
it

the
self.

new

security will fall to the

ground, as well as the contract

Next, that,

if

not usurious,

it

is

so unreasonable an advantage
is

taken of necessity and future expectancy, as the Court

to relieve against as an unconscionable bargain.

warranted
this,

Thirdly, that

if

the Court

is

warranted to relieve against

the

new

security will be considered as a continuance of the

same

oppression, and stand in the same light, though entered into after

the event.

The other

side insist that the original contract is a

mere contin-

gent bargain, and consequently not within either the intent or words of any statute. There are no circumstances of a destitute
heir or

person seduced from parental government; no practice,

is

fraud, or surprise; and that the bargain

equal, taking into con-

sideration the risk run of the principal; and, therefore, the Court
is

not warranted to relieve, even on the footing of the original bar-

gain.

But supposing the Court would

relieve

on

that, yet there is

no precedent (but to the contrary) of relief when the party has taken on himself to be a judge of the equity of the contract, and confirms
it

with his eyes open.

The
cited.

case

is

new, and I shall endeavour to throw

light,

my
all

thoughts
the cases

into one connected

and occasionally take in

As

to the first point,

whether the loan of 50007.

to be

*649

paid 10,000/. on the death of the duchess, if he survived her, but nothing if he died before her, is usurious, or a mere casual,
contingent bargain.
I

hope

may be excused

in calling
is

it

a loan;

because, although, in a case where the capital

to

not in

all

events

be paid, the word

may be improper

in Courts of law, this Court

at least has

tingent bargain
it

adopted the use of that word in respect of a mere conIf this contract be usurious, that of bottomry.

must be either because

it

is
it.

contrary to express words of the

It

would be misspending the time and the condemnation of it by canonists, civilians, and some common lawyers, because all those expressions depend on a principle which is out of
statute, or

an evasion out of

of the Court to enter into the old notion about usury,

the present case.

opinions either way.

* 8

The common lawyers differ, there being great Lord CoA:e seems to call all usury unlawful:
113

WHITE ON EQUITY.

* G50
2
Inst, 89: 3
lust,

CHESTERFIELD

V.

JANSSEN.
42*0,

151; but

in

Hard.

Lord Hale

says, the

Jewish usury only is prohibited by the common law, and the truespirit of usury lies in taking an unjust and unreasonable advantage of their fellow-creatures. But it must be agreed, that nothing is legally usurious that is not prohibited by stat. 37 Hen. 8, c. 9,

which leading statute is followed by the rest; the 12 Anne, c. 16, varying from it only in reducing the legal interest: the cases determined on the first statute have been, therefore, always looked on Therefore, to make a as authorities on auy of the subsequent (x). contract usurious within the express words of the statute, the reward must be taken for forbearance, or giving a day of payment; and whatever shift is used it will be usury, but not within the statIf, in truth, it was a sum advanced by ute where it is otherwise. reward, in truth, given for forbearance, no of loan, and the way
shift will prevail. I shall better explain myself
is

by the instances I shall at ever such an put. Supposing there for an annuity, it cannot be price, if the bargain really was under usury; but if the communication was about borrowing
a purchase of an annuity

*650] and lending, it may be usury within * the statute: and bow (y) ? If, by reason of all the circumstances and of the communication, the exility of the sum given, the original con[

tract

being a borrowing and lending, the Court thinks the annuity

was

mere device
it

to

pay the principal with usurious interest

fair a sale of

to

evade the statute, this will be within the statute, though on the face
of the bargain

appears ever so

an annuity; the conloan

of

trivance of the annuity, as the usurious reward of the

money, shall not evade the statute made for the benefit of mankind. This I take to be the sum and substance to be collected out of the several cases: Cro. Eiiz. 27; 4 Leo. 208; Noy, 151; 1 Brow. 180; and 2 Lev. 7 (z). So, a bargain on mere contingency, where the reward is given for the risk, not for forbearance, will not be within the statute; but otherwise if the intent was to have a shift,

which was Cro.

double
if

Eliz. 642, 3

(a).
if

If,

therefore,

man
will

gives or

lends money, not to be paid

the other, and
it is

the event should be one way, but

uncertain which

way

it

happen,

it

(x) To make a contract usurious within the express words of the statute. the reward must be taken for forbearance, or giving a day of payment, and whatever shift is used it will be usury. Purchase of an annuity at ever such an under price is not usury. (y) Secus, if it was a mere device to pay a loan with usurious interest. (z) Bargain on a mere risk or contingency not within the statute. (a) Secus, if the contingency was a mere shift in evasion of the statute.

114

CHESTERFIELD
is

V.

JANSSEN.
is

* 05
risk,

not within the statute, for the reward

if,

given for the

not

under colour of such an hazardous bargain, the real treaty is for a loan, with an usurious reward for that loan, and to evade the statute, the contingency inserted is of little moment, being no ingredient between the parties, the Court, or a jury, on the whole, may pronounce such a contract usurious, notwithforbearance; but

standing the colour of

contingency,

if

they

are satisfied the re-

as in the adding a which is a healthy life, if that life should survive half a year: so they might as well add a contingency, if any one of six persons was alive at the end of six months; and one of the cases is, if any one of three persons is alive at that time. The intent of the bargain is the material thing: if that was borrowing the money, it is within the statute, whatever colourable contingency inserted; and this is the sense of all the resolutions in the several cases: 5 Co. 69, 70; 2 And. 15; Mo. 397; and Mason v. Abdij (b). But where the principal was fairly and truly put in hazard, and such as none * would run for the interest the law [*051] allows, there is no case where it has been held within the The slightness or reality of the risk seems to be the only statute. rule directing the judgment of the Court: Cro. Eliz. 741, Bedingfield v. Ashley; and in 3 Keb. 304, Long v. Wharton, which, though inaccurately reported, seems to me good law. I cannot see two contracts bearing a greater similitude than this and bottomry. A life may be insured; so may a ship, which may sink the day after, so may the party die; one is as much an adventure as the other. It was endeavoured to distinguish bottomry from every contract upon this, that though above what the law allows upon a loan, yet bottomry contracts were established in favour of trade, there being a
is

ward

given for forbearance, not for the risk

single

life,

and they being necessary for trade and commay shew to such contracts, they will never establish them upon the destruction of a statute; and the principle of the Court thereon was, that the bottomry bond was
risk of the principal,

merce.

But, whatever favour the Court

not within the statute; nor could

risk

it

be, for it is plain that a real

was run, that the principal may never be payable; therefore, it cannot be given for forbearance, but grounded merely on the contingency, the risk. But as a colourable contingency, in case of. a life annexed to the payment, may make that bond usurious, so will a colourable contingency annexed to a bottomry contract: as in a
(6)

Cartb. 67.

115

* 652

CHESTERFIELD
if

V.

JANSSEK.

bond,

one out of twenty ships, bound from Newcastle to London, arrive safe, that would be a contingency thrown in to evade the statute, which would be too hard for such a bond; so, if such a
contract
at a
is

made,

if

the packet should return to Dover from Calais,

is

season of the year in which there

no danger: and
is

this I

may

an express say with the more security, as Joy v. Kent, Hard. 418, whether tried, proof of it, where a bottomry bond was sent to be so if it have been it was an evasion of the statute, which would not out Hale throws could not have been an evasion. Indeed, Lord book that inaccurate in expressions very favourable to trade, but so
that I do not think they could be such as
[

* 652

mouth

of so great a man.

came out of the * then, are of no dictums, His

which came
the Court,
cited again

authority.
in question

One

of the first cases of bottomry

v.

was Sharpley
v.

Hurrel, Cro. Jac. 208.

less,

What
is

goes on there
in Roberts

is the real risk of receiving Trenayne, 2 Roll, 47, and Cro. Jac. 508, which differed from the other. In Soome v. Glen, as in 1 Sid. 27, the resolution is founded on the real hazard of the principal, which cannot

which

be within the statute.

that this
is

On

the whole, therefore, I

its

am

of opinion,
a

not a contract founded in

origin

upon usury, but

contingent bargain, and, consequently, within the express words or

intent of none of the statutes of usury.
is, supposing it not a contract within the statute, such an unconscionable bargain, obtained of an whether it is not upon his expectancy, as the Court is warranted on preexpectant

The next

point

cedents to relieve, on paying the

the time of advancing.
If
it

sum advanced, with

interest

from

was necessary

to give an opinion

upon

own I should have great difficulty. On one hand I it would be too large to say, in no case an heir or apprehend should expectant could borrow money on his expectancy; and yet to let him borrow without any advantage to the lender seems to put him under difficulties; fathers being frequently close-handed, though liberal enough at their death; so that an heir, if hindered from
this, I

supporting himself by these means, might starve in the desert, On the other hand, I should within view of the land of Canaan.

dread the consequence of giving the sanction of this Court to future Lord Cowper states the inconveniences of a sanction bargains. which had been given. I am sure, it is a point of that consequence
to the welfare of

give an opinion of which an

mankind, that without necessity no Court will ill use maybe made. For the plaintiff

116

CHESTERFIELD
it is

V.

JANSSEN.

054

have been many contracts not illegal or iniquitous in some circumstances, but from the universal ill tendency on the prejudice to the public, have been always set aside in this Court: instances of which were in the marriage -brocage bonds,
insisted, that there

and other contracts of like nature; and that the ill tendency of heirs * contracting with strangers to furnish [ * 053 ] their wants is to make them quit a xegular family life and dependency, to withdraw from advice and counsel of friends, and to have youth supplied with the means of gratifying their passions, and the bringing people together on the worst principles on which men may contract avarice on one side, and a craving appetite on The greediness of gain is the only principle on which a the other. stranger can be induced to furnish a stranger; and the occasion of applying to a stranger is, because the wants are such as he would not reveal to his family; which tends to a delusion in what is of

A man may be givgeneral concern, the provision for posterity. person intended; of the instead money-lender ing his estate to a
and everyone disguising the truth from a man who has a right to the truth is wrong, and ought not to be encouraged; and by this delusion he gives his estate to strangers,
his heir or relation,

when he

thinks he

is

giving to

he had known the truth, he would heir or relation, so as to prevent his beggarthat for have provided practice to supply young growing has been a This himself. ing its remedy. At first the cases extended has Court the and heirs,

and when,

if

where there is express proof of gross practice or actual imposition; from thence it went to cases where, on the face of the contract, it was so gross and unreasonable a contract between the parties, that the Court, on presuming a man would not enter into it but by imposition, has relieved; of which one case among many is Nott As the mischief increased, the Court has exill, 1 Vern. 167. v. tended its remedy. Where the bargain is so lucrative, and the person under necessity, so that the judgment of the Court has been,
are,

that necessity alone could induce to

make
is

that contract, there has

been

relief:

the

first

case of which kind

396

2 Vern. 14, a very remarkable case,

It is also stated

Berny v. Pitt, 2 Ch. Rep. and a stronger there could

by Lord Coivper, in Twistleton v. Griffith, where were marks enough of imposition to warrant relieving on that foot; but he chose to establish it on the general principle and Lord Jeffertes decree, * not on the [*654] particular circumstances of the case; and he seems to renot be.
1 P.

Wms.

310,

117

* 655

CHESTERFIELD

V.

JANSSEN.

joice in the consequence, that this

to

would put a difficulty on an heir borrow on his expectancy. The last case is Curwyn v. Milner, 3 P. Wins. 293, n., where Lord King decreed relief; but said if it was new, he would not have gone so far, where such a contract was fair, and done with open eyes; saying, he thought himself bound by precedents, and that he saw no difference between an estate settled on an heir at his father's death, and an expectancy of personal estate at the death of a relation:
it is

the same kind of expectancy that

tempts to these kind of a bargains, and the influence the same." On the other hand, it is insisted, none of the particular cases cited

come within the circumstances

tice,

of this

that all those of fraud, pracit

or imposition are out of the case,

being a bargain sent to

market by the borrower, and the terms his own; no destitute heir under parental government having a great personal estate, and so
not in the circumstances of the party seeking relief in other cases; the bargain itself different; the risk being different, and the bargain, in all
its

circumstances, so equitable, that,

if

the Court should

risk, it

enter into a nice examination of the proportion

and

would

appear the defendant would have been out of pocket if the grandmother had lived a little longer: that this Court will not lay down a
his expectancy: that there have been instances

not contract on where such contracts have been carried into execution, as Hobson v. Trevor (c), and
principle in general, that an heir or expectant
Whitfield
v.

may

Fausset (d): that

it is

a sufficient terror to such con-

tractors, that they are

always liable to the examination of this Court: and that they can never stand but on the reasonableness and justice of the contract, which will restrain one kind of men from preying

on the follies of another. These are the arguments on both sides, and there would be danger and difficulty in giving an opinion on either; but there is no necessity for it, that being taken away by Mr. Spencer himself, who has made himself the judge, by voluntarily giving a
[

new

security.

* 655]

* Which

is

the third point, supposing the Court would re-

lieve against this in its original, whether it will, when altered by the party in the strongest manner, not unapprised, and with his There is no case of a contract so confirmed which was eyes open. not illegal (but such as the Court would have relieved against in its original instance), where the Court has relieved against the confir(<)

2 P.

Wms.

191.

(d) 1 Ves. 387.

118

CHESTERFIELD
ination; unless obtained

V.

JAXSSEN.

656

considered as a continuance of the

are two cases in

by fraud or oppression, and then it has been first oppression; of which there Vernon Lord Ardylasse v. Mu.-cIkuhj) (e), and

Beake (/); but there is no resemblance to the present There was no fraud, practice, or imposition in the oriThe defendant was not very ginal contract or subsequent security. pressing for his money, the security not being given until a good while after; which shows no suit or distress was threatened, but

Wiseman

v.

from

either.

fairly

and voluntarily done, and upon intimation received that the

defendaut had a doubt whether he could make good the contract in Cole v. Gibbons, 3 P. Wms. 290, and the note a Court of equity.
of the case at the

bottom of

that, is applicable to the present.

As there
would be
ought
case.

is

nothing, therefore, to set aside this contract on the foot

of usury within the statutes,

and

next, supposing

it

was such
it,

as

set aside if left to the consideration of the Court, yet as

the party, with his eyes open, has

to execute
is
it.

bound himself
to set
it

to execute

he

It is too

much

aside; the penalty,

therefore,

the only thing which can be relieved against in this

There is no occasion to introduce what Sir John Strange, M. R. have to say with making a particular statement of the case; but as it depends on a variety of circumstances, many of which must be

considered in the argument, I shall content myself with taking them

up in the course of it. The questions upon which

the

am to

offer

my advice are three.

[*656] by Mr. Backwell, and disclosed in the defendant's answer, and the bond taken upon it, are to be considered as usurious, and consequently void in point of law. Secondly, whether, supposing the bond does not come within the Statutes of Usury, the transaction or bargain in 1738 is of such a nature as will entitle the plaintiffs to be relieved in equity on the
* First, whether the original advancement of the 5001U in

manner

as deposed

circumstances attending that part of the case.

Thirdly, whether

what appears

to

have been done by Mr. Spencer,

after the death of the duchess, will in

any and what manner

is

influ-

ence the determination of this case. As to the first, I concur in opinion, that this

not an illegal agree-will

ment made void by the Statutes

(e) 1

of Usury.

The prohibition

Vera. 237. (/) 2 Vera. 121.

119

* 657

CHESTERFIELD

V.

JANSSEN.
c.

stand on the words and meaning of 12 Anne,

does not materially differ from 21 Jac.
13
();

10 (g); for that

2, c.

1, c.

17 (h); or 12 Car.

and appears calculated for such loans wherein two principal circumstances must concur agreement to give and receive an allow-

ance of profit in the

mean time

for the

money hired,

in a greater pro-

portion than allowed by the statutes; neither of which circumstances

The repayment of the money advanced occur in the present case. depended on a contingency, which if it happened one way, the whole was totally lost; during the pendency of this, no interest or profit could accrue to the defendant, but a mere wager or bargain upon contingency which died first, so that the whole was at hazard. It is objected, that though the letter of the contract may be so, yet, if the design of the parties was to borrow the 5000 l, and one should give
a greater use for the

money than

the law allows, putting

it

into this

shape will not evade the statute, in which statute are very general
words, to take in
fore, if the
all covin, shifts,

&c, which

I agreed to; and, there-

was not in reality a barwhereon the principal was designed to be at hazard, and the shape in which it was put was only a contrivance to evade * G57 ] the * statute, it will be usury, and consequently void. [ Whether the agreement is usurious, or not, may be determined two ways: first, by verdict of a jury on a plea of the corrupt agreement; secondly, by the Courts exercising their own judgment on the circumstances of the case disclosed to them. The first of these methods could not be taken in this cause, because it appears the bond was cancelled upon giving the judgment after death of the grandmother, and therefore no action could be brought on it; and, if there had been a scire facias at law on the judgment, either against John Spencer or his executors, no plea of the corrupt agreement could be received; the judgment redditum invitum not being a contract or assurance, which are the words of the statute; and this was the opinion of B. R. in Foot v. Jones, Pasch. 9 Geo. 2; the other method has often been taken, as in Roberts v. Trenayne, Cro. Jac.
Court can satisfy
itself that this

gain,

508

Thus, wherever the Court has seen that the contingency to

is

put the principal in hazard

only added colourably, and only a

.of

nominal
termined
cases,
(ff)

risk,
it to

the Court, to prevent an evasion

the statute, has de-

1, and other where the adding the contingency of a particular person being

be usury; as in Claytons Case, 5 Co.

fJepf-ale.fi

Stat.

Law

Rev. Act, 1867.

(ft)

(t)

Repealed Stat. Law Rev. Act. 1863. Repealed 17 & 18 Vict. c. 90, s. 1.

120

HESTEBFXELD

V. 3

AKE E

35

alive at the

end of a year was only a shift. So, by Holt, Comb. 25' and Garth. 08. But wager between two, to have forty for twenty, if one was alive at a future day, would not be usury: Cro. Eliz, 6 I'J. Button v. Dowrikam aud in 1 Lut. 470, notice is taken of its appearThe present ing that both principal and interest were at hazard. case is fully before the Court, and proper for the exercise of tbeir judgment. To say it is usury, the Court must be convinced that it was the design of the defendant to make a loan of this, and to secure exorbitant profit for it, and calculated as a shift to evade the But I cannot think, either from the evidence or the answer statute. of the defendant, that it was the scheme, or even in contemplation It appears a mere wager which of the two should outof the party. The 5000/. was actually advanced, not colourablv live the other.
1

;i

therefore,

none of the cases cited prove

this to be within
]

* the Statutes of Usury, or warrant the Court to declare

void thereon.
laid,
is

The word
it

"lend," on which

concludes nothing.

it [ *658 some stress was Every advancement of money on bottomry

a loan, and

was properly observed

it is

to be called so in the acts of

Parliament; but

the nature of the agreement and intent of the

must look to determine the question. on the question, whether it was the So in Mo. intent of the parties to be a wager or a loan at interest. 398, it has been argued, that lending money on bottomry, when more is taken than the legal interest, is grounded on the consideration of
parties into which the Court

Cro. Eliz, 642, puts

it

entirely

the profit to trade; and, therefore, it is said not to be applicable. That certainly has been one reason why so large a profit for the use

money has been allowed in that instance; but the general reason has been, the not coming within the intent of the statute; for, if it had, the Court could not depart from it: but the hazard the lender
of

runs, of never seeing a

penny

of his principal, or any of the interest,

takes

it

and

is

out thereof; and that holds as strong in the present caBe; so laid down in general, where the principal and interest is

in hazard: 1 Sho. 8,

Mason

v.

Abdij: and in Sid. 27, a diversity

is

taken between a bargain and a loan, whether a hazard, or not, is considered as the rule for determining whether a bargain or loan.
I

utes of Usury,

bond does not come within the Statand cannot be declared void at law thereon. On the next question, as the advice I shall offer will be grounded entirely on what was done by Mr. Spencer after the death of the

am

of opinion, therefore, this

duchess, was I to suppose, for argument's sake, the

plaintiff's

were

121

* 659

CHESTERFIELD

V.

JA5SSEN.

entitled to the relief prayed, I shall offer nothing as a determination of that branch of this case, though it may not be improper to

throw out something in general.

the principal cases cited as the

I see no reason to quarrel with

ground

for the interposition of a

Court of equity. On the contrary, I cannot help declaring I concur with those determinations, and do not mean in the * 659 ] least to abate the force of them. In the * present case
f

there are certainly

many

circumstances that cast a favour-

He does not able light on the defendant's part of the transaction. The scheme (k) fraud. of intent an having person be a appear to own terms the whose on Spencer, Mr. from but him, moved not from of the dethe part on haggling any without advanced money was contract desirable not a as others by refused was after it fendant, on the calculation of chances. Not that the hands of the Court
up from relief from the want of fraud or imposition. I Yet cases may jealousy of anything of that in this case. no have perimprovident prevent to interpose would Court this be wherein them, they come to before estates their ruining or spending from sons though no proof of actual fraud or imposition; which is agreeable to the saying of Lord Jefferies, in Bemy v. Pitt (l), when he reare tied

versed Lord North's decree.

Griffith, (ra),

So
v.

it

and

in

Curwyn

Milner

was considered in Twistleton v. The necessity must be (n).

The Courts keep a seen by every wise and considerate person. indeed, all stand on must, which agreements, these over hand strict it is not advisable perhaps, and, circumstances; particular own their
to lay

down any

general rule about them, or more than

is

necessary

to the relief in each particular case. Confirmation of the contract. Therefore, without offering

any

advice on the bond in 1738, abstracted from the subsequent transacopintion, I will proceed to 'the third question; upon which I am of
ion, that the plaintiffs are entitled to

no other

relief against the

bond and judgment in 1744, but, as to the penalty, on payment of what remains due, and the interest from the death of the grandmother: and though I have given no opinion upon the former part of the transaction, yet I must take up this, as considering the plaintiffs

entitled to the relief prayed, as the case stood

v.

on the

first

But it seems Lowfield, Belt's Supp. to Ves. 31. (&) See also Townsend such a circumstance ought to have little weight: Evans v. Cheshire, Belt's Supp. to Ves. 300, 306. (I) 2 Vern. 14. (m) 1 P. Wms. 310. () 3 P. Wms. 203, n.

122

CHESTERFIELD
agreement.

V.

JANSSEN.

* 061

And

hero

different situation in

what he was in 1738.

for

not improper to take a short view of the which Mr. Spencer appears in 1744, from When the first bond was given, he was, notit is

withstanding a large income, involved in great difficulty

want of money

to

*pay

creditors, casting about every [ *

600

way

for a present supply,

and suffering dangerous schemes

to be privately hawked about, fearful lest it should come to his grandmother's ears that he was mortgaging his expectations from her. It is not very clear who took the first step toward the new engagement after her death; the bond was not given until near two months afterwards, though dated the next day after, in order that it might carry interest from thence. But supposing the defendant

had called on Mr. Spencer for his money before the 31st of October (which, from his genteel behaviour in other parts, I can hardly think he did), yet there is no circumstance of force on Mr. Spencer; and the security then standing out against him, was onlv a bond payment of the money, not a judgment on which immediate execution could be sued; which bond would have given him time enough to turn himself about, before he would be under a necessity to be exposed to an execution. It appears to be his fixed design, after her death, to pay off the whole as fast as he could, and that with a preference to the defendant, who, he said, had ti-eated him like a gentleman. The defendant declared he would not press him for his money, although he should be glad to have it; and Mr. Spencer executed the bond and warrant of attorney freely and voluntarily, and well pleased therewith. It maybe said that all this proceeded from his not being apprised that there could be relief in equity
for

against the first bond. In Cole v. Gibbo>is (o), the bill for relief, and the answer, were both read to the party, and yet the assignment was confirmed; which circumstance, greatly weighing with Lord Talbot, is not wanting in the present case; it is what the de-

fendant himself

may make

use of on his part, and

it

will

be

evi-

dence for him,

viz.,

that he answered to the

that he doubted whether the security

manager of Mr. Spencer would be good, and therefore

memorandum; so that, from this doubt of the defendant, Mr. Spencer was apprised of the possibility of relief he had, if he applied to a Court of equity; which shows
only desired a note or

he acted with his eyes open in this * article of confirma- [* 661 tion that it was not a sudden, but deliberate act, and

(o)

^ P.

Wms. 29a
1 2:)

* 6G2

CHESTERFIELD

V.

JANSSEN.
in to his death, as

agreeable to that frame of

mind he continued
letters.

appears from his subsequent

Contracts of post obits are to be discouraged; and though the relief is not granted in the present case, yet should the Court hold How this would be in a strict hand over these sort of contracts.
the case of a

young heir under parental authority

do not

say.

It

may be improper to forejudge such a cause; but inconvenience there can be none in the determination of this. Yet, in giving my opinion and advice in this very particular case against relieving the
plaintiffs, I

am

far

from blaming the

plaintiffs,

who

are trustees for

the infant, for submitting the case to the consideration of the Court,

which

think very rightly done.

Lee, C.

J.

The

first

point

is,

whether, on the evidence before

Usury.

the Court relating to this transaction, there is sufficient appearing

to determine this contract to be usurious.

As to the nature

of usury, considering

it

at

common

law, or in the law of nature, or

large account in Pal. 291),

law of other countries (of which there is a it is unnecessary to spend time on that usury is fully settled in this country by of the idea subject, because use of all the words the language has made which the legislature,
Divine law, or the
civil

could furnish to prevent taking more than the legal interest, in which usury consists; and, to attain this end, the borrower is at
liberty to disclose every circumstance in his contract, that
it

might

appear whether there was any shift, &c. It appears, by 2 And. 15, and Mason v. Abdy, Carth. 67, where the difference is taken and settled, that, where the hazard of losing the principal is but a colourable contingency, the agreement
is

usurious: but where the con-

tingency

is

real

and

forcible, it is otherwise.

Bottomry.

think

that is the material consideration, and the substantial and true reason that bottomry bonds are not considered as usurious on the construction of the statute itself, there not being words

* in the statute to reach bottomry bonds when they run a desperate contingency of winds, seas, and enemies, the reasons touching trade not being the true reasons, although they might be inducements to Courts to construe the statutes in a favour[

* 602

able way.

So,

if

on advancement of money by way of loan, the

lender will, by an agreement between the parties, in whatever manner formed, have the repayment of the principal, with pi'otit ex-

ceeding the legal interest; that will be corrupt within the Statute

124

CHESTERFIELDS. JA5SSEN.
of Usury.
If,

* G63

two persons speaking together, one desires 100/., and for the loan will give more than the law allows, and for evasion of the statute a practice is invented that the borrower shall
therefore,

grant to the lender

30Z.

per

annum

for so

many

years, this practice

is within the statute, and will be usury, although the lender never has his 100/. again; for by this bargain by way of loan he has full

satisfaction for his 100/.,

is 1

and more

profit

than the law allows; which

Bui. 30, which brings the present case to the single considera-

tion,

whether the hazard the defendant ran of losing the whole

principal, without satisfaction for the

money advanced, was not a

it

real hazard, which might require a reward beyond the legal and

common

interest:

and where that

all

is

the case,

appears, from

all

the authorities, that

bottoms on this in Courts of law that it is always thought, where the profit the lender is to have is as a reward for the hazard he is subject to, and not for the forbearance of
not usurious.

the day of payment (which are the words of the statute), they are

In Molloy, 314, 317,

it

appears these real contingenthis foundation.

cies are not within the Statutes of

Usury on

These hazardous bargains are unconscionable.

But, on the second

Court of

point, I think it will be well worth the consideration of a

equity whether they will not interpose in case of these hazardous

bargains to pay double so as to prevent the lenders going away with

such an exorbitant gain.

It is difficult to

than can meet every case of this kind that

case: only this

form any general rule may happen; but they

must in general bo governed by the circumstances

may

in each be always proper * to be attended to, [*G63

as far as

may

be, to

bring

all

contracts that are in the

nature of loans to that mean prescribed by Parliament, that none

take more than the legal interest; and by the cases cited and stated
in Courts of equity,
to discover
it appears they have used a sagacious attention whether there is any fraud expressed, or, from the nature of the transaction or person concerned, anything carrying on the
it an appearance of imposition; as, in the case of young &c, a court of equity has disabled from taking advantage That, thereof, and interposed to prevent unconscionable bargains.

face of
heirs,

therefore,

is

a matter worth the regard of a Court of equity, so as

to prevent all trade of this sort,

such as is called Jewish interest, which seems a malum conusable at common law. "What has been done by Mr. Spencer, after the Confirmation. death of the duchess, prevents the Court from entering minutely

125

* QQ4:

CHESTERFIELD

V.

JANSSEN.

into the consideration of the first contract; for any objections thereto are taken

away by

himself, in

The

first

contract, surely,

whose place the plaintiffs stand. might recover strength, and be validated

by the intervention of a new case that was fit to create a right. If he was under apprehensions of his grandmother when the first security was given, yet they were at an end at the last. If he was an infant when he gave the first bond, the contract would be voidable as to him; but if, when of full age, he gave a new bond, it would be good against him. In the case in Dom. 136, called the Macedonian decree (De Sanatu Consulto Macedoniano, Dig. lib. xiv. tit. v. 1), it is said that if any creditor lent money for a just and
reasonable cause, sufficient to support the equity of the obligation,
it

was by a favourable interpretation of the decree of the senate

ex-

cepted from the general prohibition, according to the quality of the

use to which the money was put.

in his favour

The defendant has

this exception

the use of his money being to pay just debts to tradesupon the hatred
is

men;

for if these contracts are to be set aside

to the

creditor

who has made an improper loan,

yet that imputation

taken

away: and even in the case of a son, if the father approves *664] or ratifies the obligation by paying part, or the * son acquits
it

himself,

it

cannot be revoked: Dom. 137, 138, in

his observations

upon that

decree.

But

it is said,

that though Mr.

this

Spencer was not under the same

security as at the giving the
first

difficulty

when he gave

new
;

bond, yet he was a debtor then to

the defendant, and liable to be called on by legal proceeding

that cannot be a reason
to set

but

aside this

deliberate act of Mr.

Spencer, against

whom

there was then no process, but a readiness

in his creditor to take paper security instead of

money, which he

had a right
than
this,

to.

I rely on 3 P. Wins. 290 -(p), as a stronger case

being a deliberate act confirming an unreasonable bargain

when

the party was fully informed of everything, and under no sur-

In Cann v. Cann, 1 P. Wms. 727, Lord no colour to -set aside a release which the maker had a right to make, and was not ignorant of his right, and that solemn conveyances are not slightly to be blown over. I enprise: that
it

made

good.

Macclesfield says, there

is

tirely concur, therefore, in opinion.

Lord Chancellor Hardwicke.

(p) Cole

Before I proceed to give my cwn

v.

opinion in this case, I must take notice that Lord Chief Justice
Gibbons.

126

CHESTERFIELD
Willes has signified to
points.

V.

JANSSEN.

665

me

bis entire concurrence

on these three

Next, that the great and able assistance I have bad in this eas< has made my task extremely easy; and, as I concur in the decree I

am

advised to make, the great pains taken in clearing up and considering the points might have excused me from taking up any time.

One tbing I ought to say in the outset that if I could have foreseen upon what particular point the judgment in this case would
fundamentally turn, I should have spared tbe judges the trouble of As three points have been properly made at tbe this attendance.
Bar,
it is

necessary to say something to each.

Contract not usurious.

The

first is a

mere question of law upon

the Statutes of Usury (q) and on the rules of law, and the same as in a Court of law, if an action bad been brought on the bond, and
the whole matter had been disclosed in special pleading. * If I had even now a doubt concerning it, I should have
* 665

held myself bound by the opinion of the judges, as a

matter within their conusance, in like manner as if I had sent this to be tried at law; in which case the Court always decrees consequentially to the
in opinion.
trial.

But I have no doubt about

it,

and concur
counsel I do not

This question was laboured by tbe

plaintiffs'

many

authorities cited; strong inferences

made by them.
is

intend to go through them; but contracts on contingency are to be

distinguished plainly, for a wager on chance

statute,

not within the

because no loan.

agreement to receive
terest in

But if there is a loan of money, with an back more than tbe principal and legal in-

any event, there, though a contingency is thrown in, on which the whole principal and interest may be lost by possibility, it is usurious, and contrary to tbe statute. On this it was insisted for
the plaintiffs.
I will not

now

enter into a critical dispute

how

far

any such contract, where, by the

falling out of the contingency

lost, is in

one

way
civil

or other, tho

money may be

strictness a loan.

Tbe

law has very nice and refined distinctions upon this; "commodatum" and "mutuatum" are thero technical terms for a loan. By

specie:

was meant, whore the things lent were to be restored in by the second, where in gencre only: but in both the things were to be restored in all events, and nothing was to be paid fur the use or hire; which, when it was so, was "locatum" and "conduction."
the
first
(q)

The laws against usury

Vict.
c.

are

now

abolished.

See 17

&

IS Vict.

c.

90,

and

24

& 25

101.

127

* Q66

CHESTERFIELD

V.

JANSSEX.

by the

strictly

all our laws would But these minute distinctions upon loans are not adopted by us; but we mix and confound their "commodatum" and 'iuTuatum" as appears in an action upon a loan, which takes in So, though interest is to be paid for it, it is with us still a both. loan: so, though money is to be advanced upon a risk, which upon a contingency may be totally lost, it is still a loan of money and all the books treating of bottomry call it money lent on bottomry. Besides, this is plain by the express words of the stat. 11 Hen. 7, c. 8, which shows they understood that an adventure might be inserted * 866 in a * contract of a loan; and it is observable that this, if [ ] real and fair, exempted it from the laws of usury; though By at that time all kind of usury, or taking interest, was unlawful.

Roman
come.

lawyers, under which, perhaps,

the law of England, therefore, the insertion of a contingency will

Consider the result on the Statutes of Usury, which I will not repeat, but only deduce proper and natural inferences from them. First, if there is a loan on contingency, in consideration whereof a higher interest than the law allows is contracted for forbearance, if the risk goes only to the interest or premium, and not to the principal also,
not of
itself

prevent a contract being a loan.

of the cases cited

though real and substantial risk

statute, because the

is

inserted,

it is

contrary to the

money
is

lent is not in hazard, but safe in all

is

events;

and no regard
(r);

then had whether the contingency

real

or colourable, as appears
v.

Trenayne,

from what Doddridge, J., says in Roberts who, by the way, takes it for granted that such a
Next,
if

loan

may

be with us on contingency.
is

the contingency ex-

tends to both, and there

is

a higher rate than the law allows, regard

had, whether a bona fide risk is created by the contingency, or whether only colourable for, if so, Courts of law hold it contrary to the statute, because it is an evasion to get out of the statute, which is prohibited by the law itself: Clayton's case, 5 Co. 70; and in the case put by Popham in Burton's case (s), immediately
;

preceding.

So in Mason v. Abdy. But where the contingency has extended to principal and interest both, and not colourable only,
but a fair and substantial risk
gain on chance, and differs
the case of bottomry
(r)
'8)
:

is

created of the whole,

it

it

takes

it

out of the statute: though called a loan,

little

is

considered as a bar-

for I agree, that the

from a wager. On this depends approving thereof is

2 Roll. 47; CYo. Jac. 508. 5 Co. 68.

128

CHESTERFIELD

V.

JANSSEN.

* 008

from their being fair contracts on a real hazard, and not that they concern trade; though trade and commerce are taken into consideration, but not alone relied on to support usury, for that cannot be.

The

plaintiff's counsel object to this,

by laying

stress

on certain

expressions and dicta of judges in some cases, that there

must be no * transaction or communication of borrowing [ * 007 and lending: and cart' must be taken that there be no such; and, therefore, as the first proposal in the present case was to borrow money on a contract to pay two for one, it is usurious, notwithstand A very right answer has been ing the contingency thrown in.
1

already given, that Courts of justices are to regard the substance of

things on a contract, and not mere words, which might be inaccurately used by the parties in private dealing.

But another answer

most accurate books these expressions are applied to cases arising on purchase of an annuity, or sale of goods and merchandise, at a premium or advanced profit beyond the rate of legal interest; in which cases these expressions are prothat is, perly applicable, but cannot be so to loans on contingency a fair, real contingency; for there, from the nature of the thing, the communication must be about a borrowing and lending, as is plain from the case of bottomry and the case put by Doddridge, J., in if it goes to the terms, is of lending 100/., &c, upon a casualty interest only, and not the principal, it is usury; which he clears by The very stating of the case on the purchase the case of bottomry. annuity or sale of goods proves the truth of this. An annuity of an purchased as low a rate as you can, provided it was the be at may original negotiation to purchase and sell an annuity but if the treaty began about borrowing and lending, and ends in the purchase of an annuity, it is evident that it was only a method or contrivance to split the payment of the principal and usurious interest into several instalments, and consequently that it was a shift; which is Fidhr's
be given
in the

may

that

ease,

and

Tanfield^s case, 4 Leon.

&

Noy, 151, which I take to have

So, in the sale of
sell as

been on the same deed as that in 1 Brownlow.

goods or merchandise,
afterwards to
sell

it is

lawful to

dear as you can, on a clear

bargain by the way of sale; but

if it is first

proposed to borrow, and

is

goods beyond the market, this

usurious

of

which there are two cases in Mo. 397. The very putting these cases shows how proper and forcible those expressians of the judges before mentioned are, * when used in the [*6G8]
* 9

WHITE ON EQUITY.

129

* 669

CHESTERFIELD

V.

JANSSEN.

purchase of an annuity and sale of goods; but bow improper when thrown out in cases of loans of money on contingency.
Unconscionable bargains.
first

The second question

it is

is

supposing the

contract to be valid in law, whether

to be relieved against in this

contrary to conscience,

and

of equity.
direct

I will follow the prudent

Court upon any head or principle example of not giving any

it

and conclusive opinion.

it;

As

would be unnecessary,

it

is

the safest not to do

thing on

it.

has been made necessary to say someIt cannot be said that such contracts deserve to be
yet
it

encouraged, for they generally proceed from excessive prodigality

on one hand, and extortion on the other, which are vitia temporis, and pernicious in their consequences; and then it is the duty of a
Court,
if it

can, to restrain them.

Classification of fraud.

This Court has an undoubted

jurisdic-

tion to relieve against every species of fraud.

Actual fraud arising from facts and circumstances of imposition. First, then, fraud, which is dolus malus, may be actual, arising from
facts

and circumstances of imposition; which

is

the plainest case.

subject of the bar-

Fraud apparent from

gain.

Secondly,

the intrinsic nature

and

it

may

subject of the bargain

itself,

be apparent from the intrinsic nature and such as no man in his senses, and not

under delusion, would make on the one hand, and as no honest and fair man would accept on the other, which are inequitable and unconsciencious bargains; and of such even the common law has taken notice; for which, if it would not look a little ludicrous, might
be cited James v. Morgan, 1 Lev. Ill A third kind of fraud (u) is, which
(t).

may be presumed from

and

the
this

circumstances and condition of the parties contracting;

goes farther than the rule of law, which is, that it must be proved, not presumed: but it is wisely established in this Court to prevent

*G69 ]

sity of another,

taking surreptitious advantage of the weakness or neceswhich * knowingly to do is equally against

conscience as to take advantage of his ignorance; a person

is

equally unable to judge for himself in one as the other.

(t) This case is thus quaintly reported by Levinge: "Assumpsit de payer pur un chival, un Barly-corn a nail, et double every nail; et ayerr que la feuront 32 nails en less soliers del chival, que dublant chescun nail, veignant Et sur non assumpsit, le cause esteant try devant ;il 500 quarters de Barly. Hide al Hereford, il direct le jury pur donner le^alue del chival en damages Et issint ils fesoient et fuit apres move en arrest de judgment esteant 8. pur un petit fault en le declaration, que fuit over-rule: et judgment done pur

le plaintiff.
(u)

Fraud presumed from the circumstances and condition of the

parties.

130

CHESTERFIELD

V.

JANSSEN.

* (J70

Fraud upon

third persons not parties to the fraudulent contract.

fourth kind of fraud

may

be collected or inferred, in the consid-

eration of this Court, from the nature and circumstancef of tbe

transaction, as being an imposition

and deceit on other persons not It may sound odd, that an agreement may be infected by being a deceit on others not parties; but such there are, and against such there has been relies. Of this kind
parties to the fraudulent agreement.

have been marriage brocage contracts, neither of the parties herein

being deceived; but they tend necessarily to the deceit on one party
to the marriage, or of the parent, or of the friend.

So, in a clan-

destine private agreement to return part of the portion of the wife,

or provision stipulated for the husband, to the parent or guardian.

In most of these cases it is done with their eyes open, and knowing what they do, but, if there is fraud therein, the Court holds it infected thereby, and relieves. So, where a debtor enters into a deed of composition with his creditors for 10s. in the pound, or any
other rate, attended with a proviso that
all

creditors executed this

within a certain period,

creditor, to induce

if

the debtor privately agrees with onf

him

to sign this deed, that

he
is

will pay, or

se-

cure a greater

sum

in respect of his particular debt

in this then*
This

can be no particular deceit on the debtor who

it

party thereto, but

tends to deceit of the other creditors,

who

relied

on an equal combargains.

position,

and did

it

out of compassion, to the debtor (v).

all

Court, therefore, relieves against

such underhand

So, of premiums contracted to be given for preferring or recommending to a public office or employment: none of the parties are

defrauded; but the persons having the legal appointment of these

may be deceived thereby: or if any person, agreeing premium, has authority to appoint the officer, it tends to public mischief, by introducing an unworthy object for an unworthy consideration. Those cases show what Courts of equity mean when they profess to go on reasons drawn from public utility. * To weaken the force of such reasons, they have [ * 670 ] been called political arguments, and introducing politics into the decision of courts of justice. This was showing the thing in the light which best served the argument for the defendant, but far from the true one, if the word " politics " is taken in the common acceptation; but if in its true original meaning, it comprehends
offices are or

to take the

() Mare v. Sandford, 1 Giff. 288; M'Kewan r. Sanderson, 15 L. R. Eq. 229, 20 L. R. Eq. 65; In re Lenzberg's Policy, 7 Ch. I). 650.

131

* 671

CHESTERFIELD

V.

JANSSEN.

everything that concerns the government of the country, ot which

the administration of justice makes a considerable part; and in this

sense
sense,

it is

admitted always.

To apply

this:

thus

far,

and

in this

is relief

in a court of equity

founded oa public

utility.

Par-

ticular persons, in contracts, shall not only transact

bona

fide be-

tween themselves, but shall not transact mala fide in respect of other persons who stand in such a relation to either as to be affected by the contract, or the consequences of it; and as the rest of mankind,
beside the parties coutractiug, are concerned,
it is

properly said to

be governed on public

utility.

Catching bargains with heirs, reversioners, expectants. The last head of fraud on which there has been relief is that which infects
catching bargains with heirs, reversioners, or expectants, in the
of the fathers,
life

&c, against which relief always extended. These have been generally mixed cases, compounded of all or several species of fraud; there being sometimes proof of actual fraud, which There is always fraud presumed or inferred is always decisive.
from the circumstances or conditions of the parties contracting weakness on one side, usury on the other, or extortion or advantage taken of that weakhess. There has been always an appearance of fraud from the nature of the bargain; which was the particular ground on which there was relief against Pitt, there being no declaration there of any circumvention, as appears from the book, but
merely from the intrinsic unconscionableness of the bargain. In most of these cases have concurred deceit and illusion on other persons not privy to the fraudulent agreement.
or relation, from

The

father, ancestor,

whom was
the

the expectation of the estate, has been

the
heir,

kept
[

in

dark;

or

expectant,

has been
to

* 671

* kept from disclosing his circumstances,

and resorting

them

for advice,

which might have tended

to his relief,

and also reformation: this misleads the ancestor, who has been seduced to leave his estate, not to his heir or family, -but to a set of artful persons, who have divided the spoil beforehand. Consider which of these species is in the present case. There is
no colour of evidence of actual fraud in the defendant, who did not think he was doing anything immoral or unjust; although, if the declarations of Mr. Spencer can be believed, the defendant had a misgiving how far it could beheld good in this Court. But though this case is clearer of actual fraud than almost any that has come, yet as necessity on one several things are insisted on for the plaintiffs

132

CHESTERFIELD
side,
its

v.

JANSSEN.

* G72
in

and advantage taken

of

it

on the other; unconscionableness

nature, from the terms of paying two for one, in case of the death

of an old
her,

woman, the next week or day; that there was deceit upon
in loco parentis,

who was

from

whom were his great expectation.

I

This was, however, the thing intended.

admit, also, there are

more circumstances alleged on the side of the defendant, to weaken and take off, than have concurred in most cases of this kind. Mr. Spencer was of the age uf thirty; possessed of a great estate of his own; not weak in mind, Lmt of good sense and parts though in that the witnesses differ. If it was necessary to give an opinion upon this point, I should consider the weight of these objections, and the answers to them; but as it is not, I will only consider the contingency inserted, which was to cure the whole. I would not. have thought that the insertion of such a contingency would in every case sanctify such a bargain. Suppose such a bargain made by a son in the life of his father or grandfather, on whom was his whole dependency; I appeal to every one, what the consequence of it would be. Whether such a contingency is inserted or not, it will come to the same thing, the creditor knowing the fund for payment must depend on the debtor surviving the father or grandfather, whether it is said so or not; and * 672 '^therefore I have always thought there was great sense in J what Vernon reports to be said by the Court in Berny v.

.[

Pitt, "that the

expressing the death of the son in the

life

of the

makes the case worse." I have not mentioned the reasons drawn from the discouragement of prodigality, and preventing the ruin of families considerations of weight, and ingredients which the Court has often very
father

wisely taken along with them.

It is said, for the defendant, to be If

vain and wild for the Court to proceed on such principles.

it

had been said

it

was

ineffectual in

many

instances, I should

have agreed thereto; but I cannot hold that to be vain and wild which the law of all countries, and all wise legislatures, have endeavoured at as far as possible The senate and lawmakers in

Rome were

not so weak as not to know, that a law to restrain prodi-

gality, to prevent a son

running in debt in the life of his father, would be vain in many cases; yet they made laws to this purpose, viz., the Macedonian decree (De Senatu Consulto Macedoniano, Dig lib. xiv. tit. vi.), already mentioned; happy if they could in some
degree prevent
it;

est aliquod prodire tenus.

133

* 673
It is said for

CHESTERFIELD

V.

JANSSEX.

the defendant, that this would be to assume a legis-

and that several Acts of Parliament have been thought necessary to restrain and make void contracts of a pernicious tendency to the public. What can be properly called such an assuming in this Court I utterly disclaim; but, notwithstandlative

authority,

ing, I shall not be afraid to exercise a jurisdiction I find established,

and shall adhere to precedents. As far, therefore, as the Court went in Bemy v. Pitt {to), in Twistleton v. Griffith (x), in Curivin v. Milner (y), and the opinion of Lord Talbot on the original transaction in Cole v. Gibbons (z), so far, and as far as these principles do naturally and justly lead, I shall not scruple to follow. The Acts of Parliament (a) instanced will be found to be made (many of them), not for want of power in this Court to give relief in many of these contracts, but to make them void in law, to give the party a short remedy against them. * The judgment I am going to give will not be founded [ *673 ] upon this; but I have done it that the work of this day

may

not be misunderstood, or precedents thought to be shaken:

is

not that this establishes such a contract as

called fair, like kill-

ing fairly in a duel, which the law does not allow as an excuse for

Junct annuities and post obits are grown into traffic, which ought to abate of its fairness. As to the last question, of the subsequent acts Confirmation. of Mr. Spencer: this is the point on which the determination of this case will depend, and I entirely agree with the opinion delivered already.- Had the first bond been void by the Statutes of Usury, no new engagement would have made it better; the original would have infected it. But if a man is fully informed, and with his eyes open, he may fairly release and come to a new agreement, and bar himThe material inself of relief, which might be had in this Court. freely, withinformation, quiry is, whether this was done, after full evidence, of the out compulsion, &c. and upon the best consideration it appears to be so done, and with fairness. First, the condition of the necessity of Mr. Spencer was over:
murder.

though he had no power over the capital of this accession of estate, yet it was so great a one, that little more than one-third
for
(w) 2 Vern. 14. (x) 1 P- Wins. 310. (y) 3 P. Wins. 293 n. ije) 3 P. Wras. 290. (a) I. e. the acts against usury.

134

CI1ESTERFIELD
of a year's

V.

JANSSEN.
off

* 074
If
that, then,

income would have paid

the whole.

be a state of necessity how Then the state of expectancy was over by the death of the duchess, and also the danger of her coming to the knowledge of his conduct
far shall it

be carried?

and circumstances, and his fear of offending her, which was the principal restraint upon him; so that there was no ancestor or relation left npon whom any deceit could be committed in consequence of any new agreement; and it appears, that, before thin new bond he had sufficient notice that he had a chance, at least, that he might have relief in equity, from the defendant's own declaration to him of his doubt whether it would be good.
Lastly, there

was no impediment against his seeking

*re-

*67-4
]

lief by disclosing the whole case at that time in a court

of justice.

Under these circumstances was the new engagement, without any fraud, contrivance, or surprise to draw him in, which operates more
strongly than the deed of confirmation in Cole v. Gibbons, that it is too much to set it aside. The only difference to distinguish that from
this case was, that there the releasor

was not

in the

power of the

releasee; here Mr. Spencer was debtor (b), and his creditor might immediately have distressed him by an action; but the answer is,
It is there was neither an attempt or threat to bring an action. objected further for the plaintiffs, that Cole v. Gibbons was a single

case;

and there are several precedents

in

which such new security

v.

and subsequent transaction were not

a

sufficient to give a sanction to

demand

of this kind, as in Lord Ardglasse

it

the circumstances there show

the confirmation in

not to be at

all

applicable.

Muschamp; but, Then

Wiseman v. Beak was still more extraordinary and that was a very extraordinary invention of Serjeant Phillijis, of
cases the original transaction

In both those a bill to be foreclosed against a relief in equity. was grossly fraudulent; but I have
it

only shown

which surely is the most proper case of by a new engagement.

here to be a doubtful object of relief in this Court, all others to put an end to
that which I

Ou

the whole, therefore, the only relief

arise

is

am

ad-

vised to give against the penalty of the last bond.

The only doubt which could

the defendant
is

on

this is as to costs, to

which
is

not entitled.

The

plaintiffs

are only executors;

far

they had a probable cause of litigating th is contract, which

(b)

See Fox

v.

Mackreth, ante.

p. 141.

135

*675

CHESTERFIELD

V.

JANSSEN.

from deserving favour, and were in the right to submit it to the judgment of the Court; and it is observable, that in Coley. Gibbons, which was on this point, the bill was dismissed without costs, and no costs given on the bill, but, on the contrary, deducted. There was, indeed, in that case no penalty, as there is here; but still that does not take away the discretion of this Court in respect * of 675 costs, according to * the circumstances of the case; and ] [ there are several cases of a bond with a penalty disputed, where, though the costs at law will undoubtedly follow the demand, yet on the circumstances, costs in this court are refused.
Decree. Therefore, let it be referred to the Master to take an account of the principal and interest due on the bonds of 1744, and the judgment thereon, and to tax the defendant his costs at law,

and an account of the money paid by Mr. Spencer to the defendant; and let that first be applied to discharge the interest, and then to sink the principal, and all just allowances be made; and, on payment by the plaintiffs to the defendant of what is found due, let the defendant deliver up the bond to be cancelled, and acknowledge satisfaction on the judgment: but that must be at the expense of And, if the plaintiffs pay what is so found due, let the plaintiffs. there be no costs in this Court on either side; but. otherwise, let
the
bill

be dismissed with

costs.

Chesterfield v. Janssen is a case of very frequent reference, celebrated alike for the able arguments of the counsel on both sides, and for the opinions of the learned judges who assisted Lord Hardwicke, but above all for the elaborate and learned judgment of Lord Hardwicke himself, in which he has so admirably classified the different species of frauds against which equity will give relief. It is proposed in this note to notice only the last head of frauds mentioned by Lord Hardwicke viz., that which infects catching " These," observes bargains with heirs, reversioners, or expectants. his Lordship, "have been generally mixed cases, compounded of all or several species of fraud, there being sometimes proof of actual fraud, which is always decisive. [See Faukner v. Klamp, 16 Neb. 174; Croyle v. Moses, 9 Norris, 250; Mizner v. Russell, 29 Mich., 229; Bigelow on Fraud, 4.] There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting weakness on the one side, usury on the other, or extortion or advantage taken of that weakness. [See Hyer v. Little, 5 C. E. Green, 443; Stiner v. Stiner, 58 Barb., 643; Nace v. Boyer, 6 Casev, 90; Mann v. Betterly, 21 Vt. 326; Rogers v. Higgins, 57 HI. 24^;

136

CHESTERFIELD
Killian

V.

JANSSEN.

* G70

There has been always an apv. Badgett, 27 Ark. 100.] In pearance of fraud from the nature of the bargain most of these cases have concurred deceit and illusion on other perThe father, ancestor, sons not privy to the fraudulent agreement. or relation, from whom was the expectation of the estate, has been kept in the dark; the heir or expectant has been * kept [ * 6 16]
,

from disclosing his circumstances, and resorting to them for advice, which might have tended to his relief, and also reformation; this misleads the ancestor, who has been seduced to leave
his .state not to his heir or family, but to a set of artful persons, who have divided the spoil beforehand." With reference to these observations of Lord Chancellor Hard wicke, it has been well observed in a recent case that, "whatever

weight there may be in any such collateral considerations, they could hardly prevail, if they did not connect themselves with an equity more strictly and directly personal to the plaintiff in each particu-

For the real truth is, that the ordinary effect of all the circumstances by which these considerations are introduced, is to deliver over the prodigal helpless into the hands of those interested in taking advantage of his weakness; and we so arrive in every such case at the substance of the conditions which throw the burden of justifying the righteousness of the bargain upon the party who claims the benefit of it:" per Lord Selborne, L. C, in Earl of Aylesford v. Morris, 8 L. R. Ch. App. 492. See also Miller v. Cook, 10 L. R. Eq. 041; Tyler v. Yates, 11 L. E. Eq. 265; S. C, 6 L. R. Ch. App. 005; Beyrvon v. Cook, 10 L. R. Ch. App. 391, 392n.; lb. 389. [Weakness of mind will not of itself be enough to overthrow a contract, but it will constitute an important element in actual Marsh, 472; Rumph v. AberDeatly v. Murphy, 3 A. fraud: crombie, 12 Ala. 047; Whitehorn v. Hines, 1 Mumf. 557.] Before, however, entering upon this important subject, it may be remarked, that mere inadequacy of price, unless it were the result of fraud, surprise, or misrepresentation {Evans v. Llewellin, 1 Cos, 333; 2 Bro. C. C. 150; Pickett v. Loggon, 14 Ves. 215; Reynell v. Sprye, 8 Hare, 222; 1 De G. Mac. & G. GOO; Summers v. Griffiths, 35 Beav. 27), has rever been a sufficient ground to set aside a purchase of interests in 2^ossession, unless the inadequacy were so gross as to be of itself clear evidence of fraud. [Inadequacy of value may be strong evidence of fraud, and in a gross case it may be the con Nash v. Lull, 102 trolling circumstance in establishing the fraud: Mass. 00; Earl v. Peck. 64 N. Y. 590; Duncan v. Sanders, 50 111. Md. 435; Merriman v. Lacefield, 4 Heisk. 475; Haines v. Haines, 209; Hunter v. McLaughlin, 43 Ind. 38; Hough v. Hunt, 2 Ohio. "To set aside a conveyance," says Lord Thurlow, "then' 495.]
lar case.

gross, and manifest, that it must be impossible to state it to a man of common sense without produc ing an exclamation at the inequality of it:" Qwynne v. Heaton, 1 Bro. C. C. 8; and see James v. Morgan, 1 Lev. Ill; St i I well v.

must be an inequality so strong,

137

* 677

CHESTERFIELD

V.

JANSSEN.

Wilkins, Jac. 280; Rice v. Gordon, 11 Beav. 265; Longmate v. Ledger, 6 Jur. N. S. 481; Haygarth v. Wearing, 12 L. R. Eq. 320; Tennent v. Tennents, 2 L. R. Ho. Lo. *S. C. App. 6; Butler v. Miller, 1 I. R. Eq. 195. [Morriso v. Philliber, 30 Mo. 145; Case v. Case, 26 Mich. 484; Macoupin Co. v. People, 58 111. 191; Taylor v. Atwood, 47 Conn. 498; Brown v. Hall, 14 R. I. 249; Coffee v. Ruffin, 4 Cold. 507; Kelly v. Ma^uire, 15 Ark. 555. A case of fraud from inadequacy of consideration alone, is of very rare occurrence.] Bat, with regard to expectants (Wiseman v. Beake, 2 Vern. 121; Cole v. Gibbons, 3 P. Wins. 290; King v. Savery, 1 Sm. & Giff. 271) and reversioners (Kendall v. Beckett, 2 R. & M. 88; Bavctree v. Watson, 3 My. & K. 330; Davies v. Cooper, 5 My. & C. 270; Edwards v. Browne, 2 Coll. 100), the authorities clearly * 677 ] show, even in the absence of the different * species of [ frauds which are frequently ingredients in such transactions, that as a general rule mere inadequacy of price was a sufficient ground for rescinding contracts or dealings with them for their expectancies or reversionary interests. [Heirs and reversions were supposed in the eye of the law to be so liable to imposition that any one who deals with them must show that the purchase was a fair one, and the price paid a reasonable sum and of the full value: Needles v. Needles, 7 Ohio (N. S.), 432; Butler v. Duncan, 47 Mich, 94; Nimmo v. Davis, 7 Texas, 26; Trull v. Eastman, 3 Met. 121.] In denning the variety of persons coming within the class of "expectants" or "expectant heirs," it has been laid down by a late eminent judge that "the phrase is used, not in its literal meaning, but as including every one who has either a vested remainder or a contingent remainder in a family property, including a remainder in a portion, as well as a remainder in an estate, and everyone who has the hope of succession to the property of an ancestor, either by reason of his being the heir apparent or presumptive, or by reason merely of the expectation of a devise or bequest on account of the supposed or presumed affection of his ancestor or relation. More than this, the doctrine as to expectant heirs has been extended to all reversions and remaindermen, as appears from Tottenham v. Emmet (14 W. R. 3), and Earl of Aylesf'ord v. Morris (8 L. R. Ch. App. So that the doctrine not only includes the class I have men484). tioned, who in some popular sense might be called expectant heirs, but also all remaindermen and reversioners," per Jessel, M. R., in Beynon v. Cook, 10 L. R. Ch. App. 391, n. See also Earl of Aylesford v. Morris, 8 L. R. Ch. App. 484, 497. These transactions most frequently come before the Courts in the shape of loans, sales, and mortgages, contracted or affected by ex;

pectants.

Thus, where an heir borrowed money upon a post-obit bond or otherwise upon a mere expectancy, or sold it, a court of equity would set aside the transaction not only where it was unreasonable, but also where the price was inadequate: Curwyn v. Milner, 3 P. Wins.

138

CHESTERFIELD
293, n; Peacock
v.

V.

JANSSEN.
v.

* 678

Evans, 16 Ves. 512; and see Freme

with an heir or a reversioner

Brade, 2
set

De G. & Jo. 582. [When a transaction

is

aside

owing to the inadequacy of the price, equity will only relief upon the payment of the sum advanced with interest and costs.
This is in accordance with the maxim " he that seeks equity must do equity. y Tho rule was also applicable where the expectancy was an interest in remainder after the death of the father or any other relation: Freeman v. Bishop, 2 Atk. 39; Barnard. Ch. Rep. 1G. Thus, where a son, tenant in tail in remainder, has, during the life of his father, sold his interest in the estate at an under- value, the sale has been See Nott v. Hill, 1 Vern. 167; 2 Vern. 27; 2 Ch. Ca. L20;, set aside.
~\

2 Cox, 80, cited; Twistleton v. Griffith, 1 P. \Yms. 310; Edwards v. Burt, 2 De G. M. & G. 57. So, likewise, where a reversioner has mortgaged his estate, or has granted an annuity, or has given a bond or other security for the payment of a sum of money or an annuity at the death of his father, the transaction, unless it appeared to * be rea- [ * 678 ]

sonable or the price adequate, would be set aside upon proper terms: Barny v. Beak, 2 Ch. Ca. 136; Wiseman v. Beake, 2 Vern. 121;" 2 Freem. Ill; 1 Eq. Ca. Ab. 91; Berny v. Pitt, 2 Vern. 14; 2 Swanst. 142 n.; 2 Ch. Ca. 391; 2 Ch. Rep. 396; 1 P. Wms. 312, cited; Gwynne v. Heaton, 1 Bro. C. C. 1; Goivland v. De Faria, 17 Ves. 20; Evans v. Cheshire, Belt's Supp. to Ves. 300; Kay v. Smith, 21 Beav. 522; Smith v. Kay, 7 Ho. Lo. Ca. 750; Bromley v. Smith, 26 Beav. 644; Pennellv, Millar, 23 Beav. 172; Emmet v. Tottenham, 10 Jur. N. S. 1090; 13 W. K. (M. R.) 123; 14 W. R. 3; Re Unsworth, 13 W. R. ( V.-C. K. ) 488; Tottenham v. Green, 32 L. J. Ch. 201. But see Benyon v. Fitch, 35 Beav. 570, where the Court, under the circumstances, held tho mortgagee entitled to the amount for which the mortgagor had given bills, and not simply to the money actually advanced upon them. The application of the rule is not prevented by the fact, that the expectant heir was a person of mature age {Earl of Port more v. Taylor, 4 Sim. 182: Davis v. The Duke of Marlborough, 2 Swanst. 143), nor that he perfectly understood the nature and extent of the trans action; nor is it necessary for the heir to show that he was in pecuniary distress at the time: Bromley v. Smith, 26 Beav. 644; Salter v. Bradshaw, 26 Beav. 161; St. Albynv. Harding, 27 Beav. 11; Foster v.Roberts, 29 Beav. 467; Emmet v. Tottenham, 10 Jur. (N. S.)
1090.

upon the same

and a grant of a reversionary lease, stood principles: Grosvenor v. Sherratt, 28 Beav. 659. At one time it seems to have been thought that, in order to constitute a title to relief, the reversioner must also combine the charsale of a reversion,

acter of heir;

and Mr. Swanston

Duke of Marlborough,

in his learned note to Dan's v. 2 Swanst. 140, observes, " that the reversion-

139


* 679

CHESTERFIELD

V.

JANSSEN.

ary interests, the sale of which had been rescinded for mere inadeprice, were expectant on the decease of a parent or other lineal ancestor in every case except the following: Wiseman v. Beake, 2 Vern. 121; 2 Freem. Ill; 1 Eq. Ca. Ab. 91; Cole v. Gibbons, 3 P. Wins. 290 (for the original transaction in which, unconfirmed, Lord Talbot considered the plaintiff entitled to relief); Barnardiston v. Lingoool, 2 Atk. 133; S. C, Barnard. Ch. Rep. 138; Boives v. Heaps, 3 V. & B. 117; they were expectant on the decease of the reversioner's uncle, and in Gould v. Oakden, 4 Bro. P. C. 398, Toml. ed., on the decease of the wife's father. But in all these cases the sale had been transacted while the vendor was in distress." In nearly all these cases, it is true, distress actually exists; but the modern authorities show that, as distress or inequality * presumedAo exist, the onus (in cases not coming [ *679 ] is always within the Sales of Reversions Act, 31 & 32 Vict. c. 4), lies upon the person dealing with a reversioner or expectant, even although he does not combine the character of heir, to show that the transaction is reasonable, or the price given adequate (Goicland v. De Faria, 17 Ves. 70; Woodroffe v. Allen, 1 Hay & J. 73; Bawtree v. Watson, 3 My. & K. 339; Edwards v. Browne, 2 Coll. 100; Sewell v. Walker, 12 Jur. 1041; Daviesv. Cooper, and Cooper v. Jackson, 5 My. & Cr. 270; Addis v. Campbell, 1 Beav. 258; King v. Savery, 1 Sm. & Griff. 271; 5 H. L. Cas. 627; Edwards v. Burt, 2 De G. Mac. 6 G. 55; Bromley v. Smith, 26 Beav. 644; Salter v. Bradshaw, 26 Beav. 161; 28 L. J. (N. S. ) Ch. 426; St Albyn v. Ha-ding, 27 Beav. 11; Foster v. Roberts, 29 Beav. 467; Jones v. Ricketts, 31 Beav. 130; Sharp v. Leach, 3L Beav. 491; Talbot v. Staniforth, 1 J. &H. 484, 10 W. R. (L. C.) 829; Dally v. Wonham, 33 Beav. 154; Benyonw. Fitch, 35 Beav. 570) but the Court has directed an inquiry as to the value: Sugd. V. & P. 276, 14th ed. [Masten v. Marlow, 65 N. C. 695; Fitch v. Fitch, 8 Pick. 480; Poor v. Hazelton, 15 N. H. 564: Larrabee v. Larrabee, 34 Me. 477; Jenkins v. Pye, 12 Peters, 241.] If the bulk of the property sold was reversionary, the mere fact of a part of it being in possession (especially if colourably thrown into the contract, and it bore but a small proportion to the whole), would not prevent the application of the rule of equity with respect Davis v. The Duke of Marlto sales of interests in reversion borouglu, 2 Swanst. 154; Earl of Portmore v. Taylor, 4 Sim. 182 and see and consider Nesbit v. Berridge,4t De G. Jo. & Sm. 54: 10 Jur. N. S. 53, reversing the decision of the M. R., 9 Jur. N. S. 1044 Webster v. Cook, 2 L. R. Ch. App. 544 n.; S. C, on Appeal, lb. 542 and the remarks thereon of Sir J. Stuart, V.-C, in Tyler v. Yeates 11 L. R. Eq. 276. It seems to have been thought at one time, that certain reversionary interests, depending for instance upon marriage and birth Baker v. Bent, 1 Russ. & of issue, were not capable of valuation

quacy of

My. 224.
140

CHESTERFIELD

V.

JANSSEN.

* 680

Subsequently, however, the Court would receive evidence with regard to the value of a reversion affected by such a contingency, and if it were very remote, no deduction would be made on account of it in estimating the value of the reversion. See Baker v. Bent, 1 Hubs. & My. 224; Davies v. Cooper, 5 My. & Cr. 270; Boothby v. Boothby, 1 Mac. & G. 604; 15 Beav. 212. See also Whichcote v. Braiaston, 4 Sim. 202, cited Shencood v. Robins, 1 Mood. & Malk.
;

101.

however, that the reversion depended upon contingenby actuaries, would not relieve the purchaser from the burden of showing that the full value Talbot v. Staniforth, 1 J. *& H. 484; Wood- [ * 680 ] was given roffe v. Allen, 1 Ha. & Tw. 73. Relief also might bo had against a sub-purchaser with full notice of the- original fraud in the purchase from a reversioner Addis v. Campbell, 4 Beav. 401; Kingx. Savery, 1 Sm. & G. 271; 5 Ho. Lo. Wright v. Vanderplank, 2 Jiir. N. S. 599. Ca. 627 Although, as a general rule, before the passing of 31 & 32 Yict. c. 4, the the onus lay on the purchaser of a reversionary interest of showing that he gave a fair value (Lord v. Jeffkins, 35 Beav. 9), yet when the vendor had stated in his proposals the value of the corpus of the property, it lay upon the vendor to allege and prove that the value was understated Perfect v. Lane, 3 D. G. F. & Jo.
fact,

The

cies that could not be valued

369.

an expectant usurious loans, effected under the mask of trading, where, instead of money being actually advanced, goods are supplied by a tradesman, merely for the purpose of being at once sold, and will in general set aside such transactions upon payment of what the goods produced upon a re- sale, and interest Waller v. Dalt, 1 Ch. Ca. 276; S. C, 1 Dick. 8; Barny v. Beak, 2 Ch. Ca. 136; and see Barker v. Vansommer, 1 Bro. C. C. 149, in which case a young man, immediately upon coming of age, and wanting to raise money, gave a bond for the price of some silks to be resold by him. "I take it," said Lord Thurloiv, on setting aside the transaction, " as an advancement of goods, instead of money to supply his necessities. It is a question of more difficulty what is the sum of which the account is to be taken whether the value of the goods, In the case in Eq. Ab. 91, the Court or the sum really made. thought proper to charge the person only with what he really made of the goods and this is the proper rule, for the person advancing the goods knows they are not to be sold in the shop, but in the lump, at a different kind of market, and that what can be got for them in that way is all that will redound to the benefit of the party to whom they are advanced this leaves out of the case the value they were of to be sold in the shop." However, in King v. Hamlet, 2 My. & K. 456, Lord Brougham refused to relieve against securities given by an heir in necessitous
will also give relief, especially in the case of
heir, against
:

Equity

141

* 681

CHESTERFIELD

V.

JANSSEN.

circumstances, for the shop price of goods taken to a large amount, and immediately sold to raise money, at a loss on the whole transaction of 60/. per cent. The decision in this case was founded principally upon two propositions, which, if sustained by subsequent authorities, will form material exceptions to the doctrine of courts of equity as to the dealings with expectant heirs and reversioners. "Two propositions," said his Lordship, " I take to be in* 681 ] contestable, * as applicable to the doctrines of this Court [ upon the subject of an expectant heir dealing with his expectancy, and as governing more especially the present question. First, that the extraordinary protection given in the general case must be withdrawn, if it shall appear that the transaction was known to the father, or other person standing in locos parentis the person, for example, from whom the spes successionis was entertained, or after whom the reversionary interest was to become vested in possession even although such parent or other person took no active part in the negotiation, provided the transaction was not opposed by him, and so carried through in spite of him. Secondly, that if the heir flies off from the transaction, and becomes opposed to him with whom he has been dealing, and repudiates the whole bargain, he must not, in any respect, act upon it so as to alter the situation of the other party, or his property at least, that, if he does so, the proof lies upon him of showing that he did so under the continuing pressure of the same distress which gave rise to the original dealing. Still more fatal to his claim of relief will it be if the father or person in loco parentis, shall be found to have concurred in this adoption of the repudiated contract The whole doctrine with respect to an expectant heir assumes that the one party is defenceless, and exposed, unprotected, to the 'demands of the other, under the pressure of necessity. It would be monstrous to treat the contracts of a person of mature age as the acts of an infant, when his parent was aware of his proceedings, and did nothing to prevent them. The parent might thus lie by and suffer his son to obtain the assistance which he ought himself to have rendered, and then only stand forward to aid him in rescinding engagements which he had allowed him to make and profit by." The judgment of Lord Brougham in this case was affirmed in the House of Lords (3 C. & F. 218); but Lord Lyndhurst, in moving the judgment of the House, merely said that he saw no reason to dissent from the judgment of Lord Brougham in the Court below. Lord St. Leonards, in his learned work on Vendors and Purchasers, p. 316, 11th ed., with great reason, questions the soundness of " The first of these rules," he observes, " ia these propositions. supported by no previous authority, and as a general rule cannot, it is submitted, be maintained; the knowledge of the parent may, under some circumstances, remove one of the objections to such a transaction, but the others might still remain. The son is entitled to be relieved, although his father may witness his ruin with indif-

142

CHESTERFIELD
ference.
It is

V.

JANSSEN.

682

the sons equity, although partly

grounded
]

In many cases the person standing [*682 in loco parentis or from whom the spes 8ucce8siont8 is entertained, or after whom the reversionary property is to become vested in possession, may bo more than indifferent about the worldly Even in the case of father and prospects of the expectant heir. son, how frequently we find the expectant spendthrift only following his parent's example! The second rule, without the concluding In the case of goods qualification could not be safely acted upon. substituted for money, and a security given over the buyer's reversionary property, the heir may offer to return the goods if the

upon public*

policy.

If the offer is refused, and the seller will relinquish the securities. heir then sell them (which is simply accomplishing the purpose for which they were bought), it would not be possible to maintain that he had forfeited any equity which he originally had to impeach the See, also, the reasons for the appellant, Sug. V. & transaction."

King v. Savery, 1 Sm. & P. 1084, 11th ed., and Sug. H. of L. 65. 1 J. & H. 484, 502. v. Staniforth, Talbot Cas. 627; 5 H. L. 271; G. In fact we may now consider it to be established, notwithstanding the law as laid down by Lord Brougham, that the mere fact that the dealings with regard to an expectancy are known to his father's
family or friends, or even that he had professional advice, though material as evidence in rebutting the presumption of oppression and extortion (O'Rorke v. Bolingbroke, 2 App. Ca. 814), is not sufficient of itself to prevent relief in a proper case from being given (Talbot v. Staniforth, 1 J. & H. 484, 502; King v. Savory, 1 Sm. & G. 271, 5 Ho. Lo. Ca. 627; Earl of Aylesford v. Morris, 8 L. R. Ch. App. 492; Miller v. Cook, JO L. R. Eq. 641, 647); and upon the same principle the age of the expectant though material is by no means conclusive: Tynte v. Hodge, 2 H. & M. 287, 296; Beynon v. Cook, 10 L. R. Ch. Ap. 389; Helsham v. Barnett, 21 W. R. 309; Howley v. Cook, 8 Ir. R. Eq. 570. In a subsequent case moreover a purchase of a remainder was set aside upon the ground of inadequacy, the tenant for life herself being the purchaser: Edwards v. Browne, 2 Coll. 100; and see Playford v. Playford, 4 Hare, 546. [In a case where a husband died leaving his property to his widow, and she immediately then relinquished a large amount of it for a very small consideration the Court set the contract aside: Stewart v. Stewart, 7 J. J. Marsh,
183.]

dealings with reversionary interests are unimpeachable.] Family arrangements form an exception to the rule relating to persons dealing with reversionary interests; as for instance transactions between father, tenant for life, and son tenant in tail to resettle an estate {Tweddell v. Tnrddell, T. & R. 13; and see Heron v. Heron, 2 Atk. 160; Wallace v. Wallace, 2 D. & W. 452), and in the absence of misrepresentation or suppression (Orecmcood v.

What

143

* 684
[

CHESTERFIELD
]

V.

JANSSEN.
;

Brooke v. Lord Ghvemvood, 2 De G. * Jo. & S. 28 Mostyn, lb. 373) even though no independent professional adviser be employed (Jennerv. Jenner, 2 De G. F. & Jo. 359), and notwithstanding some parental influence may have been exercised (Hartopp v. Hartopp, 2 Jur. N. S. 794, 21 Beav. 259; Wakefield v. Gibbon, 1 Giff. 401), provided it may not have been undue; (Bellamy v. Sabine, 1 Ph. 425; Firmin v. Pulham, 2 De G. & Sm. 99; Wil(M. R.) 515, 76. (L. J.) 1056; 11 loughby v. Brideoke, 13 W. Jur. N. S. 706; and see the notes to Huguenin v. Baseley, and Stapilton v. Stapilton, post, vol. 2) they will be binding, if for a sufficient motive, and the amount of consideration will not be viewed with scrupulous accuracy: Williams v. Williams, 2 Dr. & Sm. 378; 2 L. Ch. App. 294. But in order to fall within this exception, the transaction must be strictly a family arrangement, hence where a tenant for life purchased from his nephew the reversion in the family estate, without any provision for its resettlement, it was held that the case fell within the general rule as to dealings with reversionary interests: Talbot v. Staniforth, 1 J. & H. 484. The principle on which the Court has acted in discouraging mortgages, sales, and dealings with reversionary interests, has no application to a settlement by an heir in favour of his wife and children: Shafto v. Adams, 4 Giff. 492. The sale of a reversionary interest by auction if fairly conducted rendered it unnecessary for the purchaser to show that he had given an adequate price: Shelly v. Nash, 3 Madd. 232, but where the sale by auction took place under such circumstances as to affect the purchaser ivith notice that he was dealing with a person in such distress that he did not use the ordinary precautions against a sale at an undervalue, the purchaser has been held not to be relieved from the obligation of proving that he gave a fair price. See Fox v. Wright, 6 Madd. Ill, where post-obit bonds to raise 40,000Z. were sold by auction without reserve. The sale, however, of a reversionary interest might be presumed to be at an adequate value though it should not be by public auction. As for instance, when the vendor and purchaser concurred in a valuation thereof previously to the sale by persons of competent skill; per Lord Cranivorth, L. J., 2 De G. Mac. & G. 63; or where a fair test of the market value can be obtained by the knowledge of the highest bid for it upon a previous attempt to sell it by auction: Lord v. Jeffkins, 35 Beav. 7. And the fact that a reversionary interest had been offered to and declined by many persons for a certain sum may be a sufficient reason for the Court declining to set aside a subsequent Aticood, 5 Ves. 845: [ *684] sale for *tbe same price; Moth v. Perfect v. Lane, 3 De G. F. & J. 369; sed vide Roche v. O'Brien, 1 Ball & B. 330. But where upon the sale by private contract of a reversionary
* 683

144

CIIESTERFIKLD

V.

JANSSEN.

* 685

interest in leaseholds, nothing was done excepl obtaining the opinion of an actuary unacquainted with the Local circumstances
likely to influence the value,

and

in a suit to

impeach the

sale,

the

purchaser was unable to show that he had given the full value, the And sale was sot aside: Edwards v. Hurt, 2 De G. Mac. & G. 55.

Edwards v. Browne, 2 Coll. LOO. Alot purchased by private contract at an inadequate price maybe set aside, although assigned by the same deed with a lot purchased by public auction: Neivtonx. Hunt, 5 Sim. 53 1. The rule as to the sale of reversionary interests was not applicable to a sale of property by the reversioner and the person having the prior interest; tot the rule proceeds upon the notion, that he who has only a future interest to sell does not meet a purchaser upon equal terms, but if the person having the prior interest and the reversioner concur in selling property if, for instance, the father tenant for life, and the son remainder man in tail, concur together in selling estates, they form, in fact, one vendor, with a present interest, and meet a purchaser with the same advantages as if a single person had the whole power over the estate; the onus, therefore, would not lie upon the purchaser, of showing that he gave an adequate price. See Wood v. Abrey 3 Madd. 422; Wardle Carter, 7 Sim. L90; Cooke v. Burtchaell, 2 Dru. & "War. 1G5; v. Sibber i ng v. Earl of Balcarras, 3 De G. & Sm. 735, 736. But there may, notwithstanding the concurrence of the tenant for life, exist other circumstances in the case which might throw the onus upon the purchaser, to show that he gave an adequate price, as in the case of a purchase by an attorney from his client, or in the case of undue parental influence having been used: King See, also, S. C, 5 H. L. Cas. 627. v. Savery, 1 Stn. & Giff. 271 Hannah \. Hodgson, 30 Beav. 19.
see

The rule, moreover, as to the sale of reversionary interests will not apply w here the vendor is entitled to what is substantially an estate in possession, and the reversion subject only to an intervening life estate (Wardle v. Carter,! Sim. 490), nor where the contract was entered into between a tenant and the person entitled to the reversion and to the rents during the term: Scott v. Dunbar, 1 Moll. 459. J^or where the sale was of a life interest, in possession subject to rent charges which absorbed nearly the whole of the income: Webster v. Cook, 2 L. B. Ch. App. 542. But see post, p. 691. Where even before the Sales of Reversions Act (31 & 32 Vict. *c. 4) came into operation, a person dealing [ *685] with an heir or reversioner, showed that the transaction was reasonable, and that a fair price had been given, either for a reversionary interest, annuity, or post-obit bond, a Court of equity would not, in the absence of fraud, set it aside: Dews v. Brandt, Sel. Ch. Ca. 7; Batty v. Lloyd, Vern. 141; Wharton v. May, 5 Ves. 27; Curling v. Townshend, 19 Ves. 634; Lord Aldborough v. Trye, 7 C. & F. 436.
7
1

* 10

WHITE ON EQUITY.

145

* 686

CHESTERFIELD

V.

JANSSEN.

It may be here mentioned, that a fair agreement between expectants or heirs, to divide the property which may be left between them, or <to any one of them, is not contrary to public policy, and that specific performance has been even enforced inequity: Beckly See also Whethered v. Wethered, 2 v. Neivland, 2 P. Wms. 182. Sim. 183; Harwoodv. Tooke, 2 Sim. 192; HydeY. White, 5 Sim. 524.

What constitutes inadequacy of price.} There is no rule in our law as to what difference beteen the real value of the property and the consideration paid constitutes inadequacy of price; this the Judge must decide. By the civil law, a consideration which exceeded half the value of the property was adequate: Baldwin v. Rochford, cited 2 Ves. 517; Nott v. Hill, 2 Ch. Ca. 121, where Lord Nottingham says, " By the civil law a bargain of double the value shall be See C. Lib. iv., Tit. avoided," and wished it were so in England.
xliv.
1.

2.

In many cases sales of reversions were set aside for inadequacy where the difference between the assumed value and the price Thus, in Edwards v. Browne, 2 Coll. 100, given was very small. where the market value appeared to have been rather more than 1900Z., and the price paid was 1700Z., the Court held that the inadequacy was sufficient to entitle the vendor to relief. So in the case of Edwards v. Burt, 2 De G. Mac. & Gr. 62, where the value was taken to be 580Z., and the price was 500Z., and 50Z. payable on a future contingency the same result followed; and see Jones v. Ricketts, 31 Beav. Such cases drew from a learned Judge an 8 Jur. N. S. 1198. J 30; observation to the effect that the tendency of the decisions was to establish that unless a person gave much more than the value it was impossible save under a sale by auction, to purchase a reversionary See Foster v. Roberts, 29 Beav. 471. interest with safety.

As to the valuation of a reversionary interest.} When it becomes necessary to consider the value of a reversionary interest, much on difficulty arises from the conflicting evidence usually given the one hand, by auctioneers and surveyors who estimate * 686 ] the value by the market price; on the other, by ^actuaries [ who generally estimate the value according to the tables. It is, however, now fully established, that, in calculating the value of a reversionary interest, the Court will be guided, not by the tables, but by the market price: and in the case of real estate, its nature, position, and other particulars ought to be considered as See Hincksman v. Smith, affecting the value of the interest sold. 3 Buss. 433; Headen v. Rosher, M'Cl. & Y. 89; Potts v. Curtis, 1 You. 543; Newton v. Hunt, 5 Sim. 511; Wardle v. Carter, 7 Sim. 490; Ryle v. Swindells, M'Cl. 519; Edwards v. Browne. 2 Coll. 100; Davies v. Cooper, 5 My. & Cr. 270; Lord Aldborough v. Trye, 7 C. & F. 436; Bernal v. Lord Donegal, 3 Dow, 133; 1 Bligh, N. S.,

146

CHESTERFIELD

V.

JANSSEN.

* 087

594; Edivards v. Burt, 2 Do G. Mac. & G. 55, 57; Perfects. Ixtne, 3 De G. F. & Jo. 309; Tynte v. Hodge, 2 Hem. & Mill. 287. The value of a reversionary interest is always to bo calculated with reference to the time of the contract, and not to the result; so that, although, in the events which may have happened, a largo price has been given for a reversionary interest, the Court could not tako that into consideration, if tho price at the time of the con tract was inadequate: Uowlandx. De Faria, 17 Ves. 20, 25; Boot It by v. Boothby, 1 Mac. & G. 009, 2 H. & Tw. 214. The circumstance that a reversionary interest formed part of the subject of a chancery suit, must bo taken into consideration as involving a considerable deduction from the strictly calculated value of such interest (Perfect v. Lane, 30 Beav. 197, 3 De G. F. & Jo. lb. 309): so must the costs of selling real estates.

The law how far affected by the abolition of the usury laws and by The equitable doctrine relative to the Sales of Reversions Act. \ tm-conscionable bargains or contracts with expectants was quite independent of the laws against usury, and it was in force before

Those statutes the statutes relating to usury came into existence. were passed, as Lord Hardwicke, observes in the principal case, "not for want of power in the Court of Chancery to give relief in many of such contracts, but to make them void in law, and to give the party a short remedy against them:" ante, p. 072. The laws against usury were abolished by 17 & 18 Vict. c. 90, and 24 & 25 Vict. c. 101, but the doctrine against unconscionable dealings with expectants as it previously existed independently of the usury laws, is unaffected by their repeal: Beynon v. Cook, 10
L. R. Ca. App. 392.
It has indeed been suggested that because the usury laws had been repealed, a bargain that before was unreasonable became

reasonable. "Upon "that," observes Jessel, M. R., Croft v. * Graham (2 De G. J. & S. 155) is conclusive, showing [ -087] that the repeal of tho usury laws does not make a hard bargain with an expectant heir reasonable, because in other cases tho usury laws no longer being in force, persons may make hard bargains with persons entitled to property in possession, or entitled to no property at all: " Beynon v. Cook, 10 L. R. Ch. App. 392; see also Barrett v. Hartley, 2 L. R. Eq. 795, per Stuart, V.-C. Miller v. Cook, 10 L. R. Eq. 041; Tyler v. Yates, 11 L. R. Eq. 205; S. C, L. R. Ch. App. 005. Tho Sales of Reversions Act was passed for abolishing the equitable doctrine which set aside a sale of a reversionary interest solely on the ground of inadequacy of consideration, and threw upon the purchaser the onus of proving adequacy. The effect of the Act ap;

pears to be to put the sale of a revisionary interest if bond fide and without fraud oruufair dealing, on the same footing as a sale of an interest in possession, and that since the Act came into operation.

147

* 68S

CHESTERFIELD

V.

JANSSEN.

in order to set aside the sale of a revisionary interest the onus of showing the want of bond fides, or the existence of fraud or unfair dealing on the part of the purchaser, is thrown on the vendor. On his failure to show this the transaction will stand good, notwithstanding inadequacy of price, unless perhaps when it is so gross, that of itself it would be sufficient to raise a presumption of fraud. The Sales of Reversions Act (31 & 32 Vict. e. 4), altering the law relating to the sales of reversions, enacts, that, "no purchase made bond fide and without fraud or unfair dealing, of any reversionary interest in real or personal estate, shall hereafter be opened The or set aside merely on the ground of undervalue. (Sect. 1.) word 'purchase' in this Act shall include every kind of contract, conveyance, or assignment, under or by. which any beneficial interest in any kind of property may be acquired. (Sect. 2.) This Act shall come into operation on the first day of January, 1868, and shall not apply to any purchase concerning which any suit shall be then depending." The Act as to the sales of reversions as observed by Lord Selborne, L. C, is carefully limited to purchases made bond fide, and without fraud or unfair dealing, and leaves under-value still a material element in cases in which it is not the sole equitable ground These changes in the law have in no degree whatever alof relief. tered the onus probandi in those cases which, according to the language of Lord Hardwicke, raise from the circumstances or condiditious of the parties contracting weaknehS on one side, usury on the other, or extortion, or advantage taken of that weak * 688 ] ness, a %iresumption of fraud. Fraud does not here *mean [ deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions; and when the relative position of the parties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been in point of fact fair, just, and reasonable: per Lord Selborne, L. C, in Earl of Aylesford v. Morris, 8 L. E. Ch. App. 490. In fact the exception in the statute as to fraud and unfair dealing, leaves the law as to unconscionable bargains, as affecting rever-

sionary interests, the same as it was before the statute came into There the deoperation. See Miller v. Cook, 10 L. R. Eq. 641. fendant, a money-lender, having agrt-ed with the plaintiff, who was just twenty -one years of age, and was in difficulties, to lend him 150/. on his reversionary interest under his father's will, exacted securities for 200Z., with interest at 20 per cent, reducible to 10 per
cent,

interest

on punctual payment, and advanced only 123Z., but claimed on the whole amount secured, and there were immediate powers of sale on non payment of principal and interest upon a certain day. The plaintiff, it seems, had been assisted by Mr. Ring, a solicitor, who, however, stated that he had not been accurately in148

CHESTERFIELD

V.

JANSSEN.

* 089

formed of the transaction. It was held by Sir John Stuart, V. C, that the transaction being unconscionable, the deeds executed by the plaintiff should only stand as securities for the moneys actually advanced with interest at 5 per cent. "As to the argument," said his Honor, "on the recent statute (31 & 32 Vict. c. 4, s. 1) concern iug dealings with reversionary interests, the exception in the statute as to unfairness leaves the settled laiv as to cases like the present Nor is the case of the defendant assisted by the preuntouched.

The sence of Mr. King, who appeared as the plaintiff's friend. evidence shows that the advice of Mr. Ring was founded on misunderstanding or misrepresentation. But there is a great difference between the intervention of a third party in transactions of this kind, and where there is no pressure of necessity which the friend In transactions of bounty indeed, where the advice cannot relieve.
of a judicious and impartial friend may assist and regulate, and in transactions where the pressure, not of want and of necessity, but of a confidential relation between the parties, requires the impartial advice of a friend, the intervention of a third party is imIn the present case, besides the other objections to the portant.

contract, the terms of the powers of sale are oppressive, and put the plaintiff completely at the * mercy of the deThe power to sell without any notice to the fendant.

* 089

plaintiff enabled the defendant at any moment to extinguish the right of redemption." So where a young man charged a reversion with exorbitant sums for interest on loans principally made to his brother, an infant, on bills of exchange which he had accepted for the infant, it was held by Lord Hatherley, L. C, affirming the decision of Stuart, Y.-G,. that the charges so given should stand as security for the sums actually advanced with interest at 5 per cent.: Tyler v. Yates, 11

L. R. Ch. App. 005. See also Lire Slater's L. R. Eq. 205, affirmed Trusts, 11 Ch. D. 227: decided on petition. It is not necessary in order that an expectant heir should set aside an unconscionable bargain, that he should actually deal with his expectant or reversionary interests; it is sufficient that he was See Earl of Aylesford trusted upon the credit of his expectations.. There the plaintiff, then a young v. Morris, 8 L. R. Cb. App. 484. nobleman in his twenty-second year, entitled to a large property in the event of his surviving his father, being largely indebted, upon
the introduction of a creditor applied to Morris, who advanced 30002. in payment of the debt, and 3800/. to the plaintiff, taking his acceptance at three mouths for 8000/., the difference. 12002., being retained by Morris as discount at the rate of Is in the pound At the same time an insurance was effected on the per month. plaintiff's life for 0000/., the first premium being paid by the plaintiff

The acceptance of 80002. becomout of the money advanced. ing due on the 4th Oct., 1S70, the plaintiff, through the agency of one Addison, had his acceptance of 80002. cancelled, and giving
14U

* 6P0

CHESTERFIELD

V.

JANSSEN.

Morris bills dated the 19th Dec. at three months for 11.000/. and receiving a balance of 207/. only, the rest of the money beyond the 8000/. being for discount, extra payment on the policy of assurance, and 275/. commission paid to Addison. The plaintiff had no professional assistance in these matters, and no application was made It was held by Lord to his father or to the solicitor of the father. Selborne, C, affirming the decree of Wickens, V.-C, that a decree ought to be made for delivering up of the bills on payment of the sums actually advanced and interest at 5 per cent. An unconscionable bargain will also be set aside, where the spes successionis is only of a general character arising from the As, for instance, in the case of a man, son position of the father. of a father possessing large property, but who had no property of his own, and no expectation of any, except such general expectations as are founded on his father's position in life, the * any thought of repayment by [ * 090 ] money being lent without
the borrower, but on the credit of such general expectain the hope of extorting payment from the father to avoid the exposure attendant on the son's being made a bankrupt: Nevill v. Snelling, 15 Ch. D. 679. And it seems that it is material that when the transaction took place the lenders were aware that the borrower had a reversion Beynon v. Cook, 10 L. R. Ch. App. 392 n., where Sir G. Jessel, M. 11. observed, " It has never been said a man can be relieved because he happens to be a reversioner, and the money lender does not know it but lends him money upon his promissory note at usurious interest. In order to be relieved, he must have been trusted upon the credit of his expectations." The usury laws being abolished persons may make hard bargains with persons entitled to property in possession, or entitled to no property at all: per Jessel, M. R., in Beynon v. CooA;, 10 L. R. Ch. App. 392. See also Webster v. Cook, 2 L. R. Ch. App. 542, in which case it was decided on appeal that the subject-matter of the suit being an interest in possession, the doctrine as to unconscionable bargains with expectants was not applicable thereto. In Webster v. Cook, 2 L. R. Ch. App. 542, the plaintiff being entitled to a life interest in an estate, subject to two jointures of 1000Z. and 500Z. a year, and to a mortgage of 23,000/., by indenture dated the 17th August, 1804, in consideration of 1000?., covenanted to pay the defendant 3300/. on the death of the jointress having the jointure for 1000/. a year, and in the meantime interest at 1/. per cent, per annum until her death, and after her death at the rate of 10 per cent, until the sum was paid. He also covenanted to insure He further ashis life for 3500/., and pay the premiums thereof. signed his life interest by way of security for the payment of the 3000/., interest and premiums, with a provision for redemption on payment of 1500/. on the 17th of August, 1865, or the sums of 1850/. on the 17th of August, 1866, with all interest and premiums up to
tions,

and

150

cill.si

ERFIELD

V.

JA5SSEN.

'

<;!,

those

\'>y a memorandum on 5th January, daya respectively. 1865, he agreed that a debt of 4001. due from him with interest at 5 percent per month should be tacked to the security of fch<

indenture of the L7th of August.

The

plaintiff

was

in

argent

<lis

tress for money, and without professionaJ advice when he contracted the loan, and bis clear income from the estate afterwards wasabout 215?. On the Lst of July, L865, his solicitors wrote to the defend

ant, oftering to

redeem on payment
,

and interest
bill

at 5Z.

of the sum actually advanced, per cent., and on do! receiving any answer filed a
'

Lord Eomilly,M. R. treal to redeem on those term 691 ing thetran action as the sale of a reversion, said thai he was clear Bat he musl hold it, to be a Bale pro inula <r a reversion on the death of the jointress at an inadequate value, that he was of opinion thai the mortgage and assignment made to secure it must be cancelled, and the property reconveyed on payment of the principal sum advanced, together with interest at 5/. His Lordship percent, per annum from the date of the advance.
| |

Lord Chelmsford, to give any relief as to the 100/. made L. C, on appeal reversed the order of the Ma ter of the Roll a decree'f or redemption on payment of L500Z., with interest at I/. per 'lit. on the Bum of 8300Z. down to the L7tb August, 1865, and afterwards on 1500/. at hi. per cent, and of the lima paid by the defendant for premiums with interest thereon, and of the sum of loo/, and interest thereon at the rate of hi. percent, per month. Hi-, Lordship said that if it had beer tin- case of the sale <<f a re ,(T ion lie bould have bad uo difficulty in determining that there
however refused
,

was

of price,

adduced by the plaintiff of the inadequacy and the onus would have beenupon the defendant to prove But Ins Lordship was at a that the transaction was rea onable. loss to discover what reversion tberewas in the plaintiff, for which the parti'-, could be said to have dealt, that the policy of law which throws its protection round all reversioners might ! questionable, and has been questioned, and that the principle ought not to b< tended by analogy. The decision of Lord Chelmsford has been Btrongly di approved
sufficient evidence

of by

Sir

./.

Stuart, V. 0., in

Tyler

v.

Yates,

L.

B.

Eq. 276,

where he says, "The case of Webster \. Cook (2 L. R. Ch. App. 542), wa^ decided upon a mistake, and therefore cannot be looked In that ca e Lord Chelmsford con upon a s ca e of authority. m question was not a reversionary inter* reived that tinThere is no conceivable difference upon principle between the in which the owner of an estate has in an annuity paid to a widow by way of jointure, which interest is to accrue on death of Thecaseof Web the widow, and any other revel ionary interest.
i
r
1

-r

<

t.

gter

v.

Coofi

Court." Cook, 3

not consistent with the establi bed doctrines of this See also Helsham v. Barnett1 2\ \\ R. 309; Howley v.
i .

Rep. Eq. 570. Accounts settled for the purpose of bdvance

Cr.

on po
1

obit

bonds,

* 692

CHESTERFIELD

V.

JANSSEN.

or mortgages of reversionary interests, will not be treated as settled accounts: Croft v. Graham, 2 De G. J. & S. 155; 5 Giff. 1; Tottenham v. Green, 1 N. li. 466. Parties, moreover, with notice taking a transfer of securities im-

peachable as unconscionable, will be bound by the same equities as the parties to the original transaction: * Nesbitt v. Berridge, 32 Beav. 282; 4 De G. J. & S. 45; Tottenham v. Green, 1 N. R. 466. AVhen, in dealing with an expectant for the purchase of his interest, as in the case of a young man a very few days above twentyone, without professional advice, in furtherance of an arrangement made whilst he was yet an infant, by his father, the onus lies with the purchaser of showing that there was nothing unconscientious on his part, and if he succeeds in doing so, and the bargain appears to have been made bona fide, and without fraud or unfair dealing, even although the price thought at the time of the bargain to be fair and even liberal, from a latent defect or accident should turn out
[

* 692

be inadequate, the transaction will not be set aside. See O'Rorke Bolingbroke, 2 App. Cas. 814 836, where the majority of the House of Lords, consisting of Lords Blackburn and Lord Gordon, dissentiente Lord Hatherley, reversed the decision of the Court of Appeal in Ireland of two experienced equity lawyers, Lord Chancellor Lord Hatherley, in the House of Lords Ball, and Christian, L. J. agreeing with Ball, L. C. and Christian, L. J., thought the whole case ought to be opened upon the ground that the expectant, although the defendant had suggested his employment of a solicitor, had not on account of his poverty employed one, whereas if he had done so, he would probably have pointed out the very bad health of his father, upon whose death shortly after the reversion fell into possession, and have either obtained a better price for the sale of the reversion, or have suggested a loan in lieu thereof. In giving judgment Lord Blackburn makes the following remarkable observations, "It is a curious instance of how different minds draw different inthat the facts that the lad was penniless, and, except for ferences his father, friendless, which led the noble Lord (Hatherley) to the conclusion that the bargain cannot stand, are the facts which lead me to the conclusion that there was nothing unconscientious in the bargain, because they made it impracticable for the lad to have that further advice which I agree, if practicable, the purchaser should have insisted on his having." lb. p. 837.
to
v.

As to the terms upon which the transaction with an expectant heir Where any transaction with an exor reversioner will be set aside.] pectant heir or reversioner has been set aside, the Court, proceeding upon the well-known maxim u that he who seeks equity must do equity.''' has only given relief upon payment of the sum actually advanced, with interest, usually at 5?. per cent. (Earl of Aylesford v. Morris, 8 L. R. Ch. App. 484; Tyler v. Yates, 11 L. R. Eq. 265; 6

152

CHESTERFIELD

r.

JANS8EBT.

* 694

L. R. Ch. * App. 665; Miller v. Cook, 10 L. B. Eq. 041); [*693 money expended by the defendant in lasting and valuable improvements on the premises, and costs (Minroyx. Palmer, 2 Scbo. & Lef. 44)0; Salter v. Bradshaw, 26 Beav. 101; Twistleton v. Griffith, 1 P. Wms. 310; Gwynne v. Heaton, 1 Bro. C. C. 1; Peacock v. Evans, 10 Ves. 512; Wharton v. May, 5 Ves. 27; Curling v. Totru|

shend, 19 Ves. 033; Bowes v. Heaps, 3 "V. & B. 1 17; Evans v. Ctoessfttre, Belt's Suppl. to Ves. 312; jfr'ox v. Wright, 6 Madd. Ill: Bawbee v. TFatsow, 3 My. & K. 341; Miller v. Cook, 10 L. R. Eq. 641, 547); except the costs of an unsuccessful reference as to value: Boothby v. Boothby, 15 Beav. 212, 214; Edwards v. i?i% 2 De Gex, Mac. & G. 55, 05; Jones v. Ricketts, 21 Beav. 130. And in default of payment of principal and interest and costs if allowed to the defendant, the action will be dismissed with costs Croft v. Graham, 2 De G. J. & S. 155; 2 Seton Decrees, 1300, 4th Benyon v. i<7/r/>, 35 Beav. 570, 578 Earl of Aylesford v. ed. Morris, 8 L. R. Ch. App. 498; 2 Seton Decrees, 1367, 4th ed. But misconduct on the part of the defendant has been held to disentitle him to costs (Baugh v. Price, 1 "Wils. 320; (lowland v. De Faria, 17 Ves. 20; Moroney v. O'Dea, 1 Ball & B. 109, and the Bauiree v. FPdteon, reporter's note; Wood v. Abrey, 3 Madd. 417 3 My. & K. 339; Tyler v. Tates, 11 L. R. Eq. 265); so, where he has refused proper terms before the suit was instituted, he has been compelled to pay the costs of litigation which he rendered necessary (Ben)jon v. Fitch, 35 Beav. 570, 578; Beynonv. Cook, 10 L. R Ch. App. 3S9; Nevill v. Snelling, 15 Ch. D. 705; Wyatt v. CooA;, 16 W. Howlry v. R. 502), or has been guilty of fraud or misconduct But compound interest will never be alCook, 8 Ir. R. Eq. 570. lowed to the purchaser: Goivland v. DeFaria, 17 Ves. 20. It seems also that the plaintiff must pay the costs of suit so far as they relate to charges of fraud or undue pressure not proved: St Albynw Harding, 27 Beav. 11; but see Tyler v. Yates, 11 L. R. Eq. And as to costs generally, see Bromley v. Smith, 26 Beav. 205.
:

644.

On the other hand, the purchaser will be charged with what he has actually received and interest, but it seems he will not, like a mortg igee, be charged with what, without wilful default lie mighl have received: Murray v. Palmer, 2 Scho. & Lef. 489; but see Decree, lb. contra, 49o.
Confirmation and acquiescence.'] Impeachable transactions, as in v. Janssen, may be rendered valid by acts of confirmation (Cole v. Gibbons. 3 1'. Wms. 289), especially when of a " 694 formal character after advice taken (Lydon * v. Moss, De G. & Jo. 104), as by will or deed (Stump v. Gaby, 2 De G. Mac. & G. 623); or acquiescence for a great length of time !">; Addis v. 'amp(Sibbering v. Earl of Balcarras, 3 De G. & Sm Turner v. Collins, 7 Beav. Lord 35 v. 7; Beav. Jeffkins, 401; bell, 4 153
Chesterfield
t
| |

'"

* 695

CHESTERFIELD

V.

JANSSEN.

L. E. Ch. App. 329), on the part of a person who is cognizant of and see Gerrard v. O'Reilly, 3 Dm. & W. 414 his right to relief for it has been well said, "that the presumption which a Court of justice most probably entertains against stale demands, can never be more properly applied than in a case where the burden of proof upon a most material point in controversy is thrown upon the de; ;

fendant" (3 De G. & Sm. 737). But confirmation or acquiescence will be of no avail whilst the reversioner continues in the same situation as when he entered into the contract, for in such cases it has always been presumed, that the same distress, which pressed him to enter into the contract, prevented him from coming to set it aside; it is only when he is relieved from that distress that he can be expected to resist the performance of the contract: Goivland v. De Faria, 17 Ves. 20; Medlicott v. O'Donel, Kendall v. Beckett, 2 Russ. & My. 88 Edwards 1 Ball & B. 156 v. Browne, 2 Coll. 100; Kempson v. Ashbee, 10 L. R. Ch. App. 15; See Fox v. Mackreth, Beijnon v. Cook, 10 L. R. Ch. App. 393 n. ante, 163, and note, 213; and in Curwyn v. Milner, 3 P. Wms. 292, n., relief was given even after payment of the money due on a postobit bond, the payment having been made from fear of an execution. So, where a person bought a reversion at a gross undervalue, from an heir in distressed circumstances, and resold it at a large profit to a sub-purchaser who had full notice of the original fraud, and the reversioner being still in distress, was induced by the original purchaser to join in and confirm there-sale, and to concur in suffering recoveries which were necessary to perfect the title, but nothing was paid or secured to him as a consideration for such concurrence, the transaction was set aside as against the sub-purchaser on the repayment of the price paid on the first purchase Addis v. Campbell, 4 Beav. 401; and see King v. Savery,! Sm. & Gr. 271; 5 Ho. Lo. Ca. Wright v. Vanderplank, 2 Jur. N. S. 599. 627 "Where, moreover a sale of a reversion has taken place at undervalue time will not begin to run against the vendor until the reSee Salter v. Bradshaw, 26 Beav. version falls into possession. 161, in which case the transaction was set aside after the lapse of See also Beynon v. Cook, 10 L. R. Ch. App. 393. forty years. Where a transaction is not merely voidable or impeach* of public [ * 695 ] able, but is absolutely void, upon principles in the Hardivicke, Lord down by laid as is then, policy, Thus, a usurious principal case, it is incapable of confirmation. contract was, and a marriage brokage contract still is, void ab initio, and does not admit of confirmation Shirley v. Martin, 3 P. Wms.
;
; :

74, n; Cole v. Gibson, 1 Ves. 506, 507. It may be here mentioned that by the Infant's Relief Act, 1874, 38 Vict. c. 62). which came into operation on the 7th of August, (37 1874, it is enacted that "all contracts, whether by specialty or by simple contract, henceforth entered into by infants for the repay-

&

ment

of

money
154

lent or to be lent, or for

goods supplied or to be

CHESTEBPIELD

V.

JANSSEN.

G95

supplied (other than contracts for necessaries) and all accounts stated with infants, shall be absolutely void; provided always that this enactment shall not invalidate any contract into which an infant may, by any existing or future statute, or by the rules of common law or equity enter, except such as now by law are voidable."
(Sect. 1.)

That " no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any
shall not be

promise or contract made during infancy, whether there shall or any new consideration for such promise or ratification

(Sect. 2.) after full age." The 2nd section of the Act applies to ratifications made after the passing of the Act of contracts made before that time: parte parte Kibble, In re Onslow, 10 L. R. Ch. App. 373: and see

Ex

Ex

Jones, 18 Ch. D. 109; overruling Ex parte Lynch, 2 Ch. D. 227; and in Coxhead v. Mullis, 3 C. P. D. 439, sect. 2 was held applicable to a promise to marry, made during infancy and ratified afterwards. Secus where there is a new promise after majority, as distinguished from a mere ratification of an old one during minority: Northcote v. Doughty, 4 C. P. D. 385; Ditcham v. Worrall, 5 C. P. J). 410.

[Doctrine of Bargains with Heirs Expectant and Reversioners Persons in expectancy are often unacquainted with the Restated. real value of their interests, and if in want or trouble are, like Esau, tempted to sacrifico large future advantages to a little present good; hence a contract with a person' for the sale or charge of property in expectancy, whether as reversioner or remainderman or whether as expect heir or as expectant devisee or legatee of another, raises a presumption against the purchase which he must be prepared to rebut in order to support the contract. Bargains of this kind are not void, they may be sustained ab initio if they are proved free of unfairness or inadequacy, or they may be made good afterwards by the bargainer either by express confirmation or by con-

tinued acquiescence]

55

* 696

MARSH

V.

LEE.

* 696

*
J

MARSH

v.

LEE.

Termino Sanctce

Trinitatis,

Anno

22, Car. 2.

[reported 2 VENTRIS, 337.]

[S.

C,

1.

Ch. Ca. 162.

3 Ch. Rep. 62.]

Tacking Incumbrances.]

// a third mortgagee having advanced notice without his money of a second mortgage, afterwards buy
in a first mortgage or statute, though
it

be pendente

lite,

pending

a bill brought by the second mortgagee to redeem the first, yet the third mortgagee, having obtained tlte first -mortgage or statide,

and having

the laiv

on his

side,

and equal

equity, he shall thereby

squeeze out and gain priority

over the second mortgagee.

bill in Chancery was brought by Marsh, and an answer put

in thereto.

One English, being seised of the manor of of Monfield, in 1649, mortgages part Manor of the and AVicksall
The
case was thus:
of the

Afterwards, in of Wicksall to Burrell for 1000Z. 800Z., for the payof Burrell statute to a acknowledges 1655, he

manor

ment

of 4007.

Afterwards, in 1662, English mortgages both these manors to

Mrs. Duppa, for 7000Z.

Afterwards, in 1665, English mortgages the manor of Wicksall Lee having no notice of the former mortgages. to Lee, for 2000/.
;

[(c) After Mrs.

Duppa's death, her executors brought actions of

tiled their bill of

ejectment against English, aud

him.
ejection against

foreclosure against

In Michaelmas Term, 1667, English Buffered judgment in

him

at the suit of the executors, with a ce^set

The cesset executio having expired, English obtained an injunction against the procepdings at law,
executio until May, 1668.
Ch. Ca. 162, where (c) This statement within brackets is drawn up from 1 the proceedings in the case are fully given.

150

MARSn
upon the judgment

V.

LEE.

098

in ejectment, until hearing or anotkpr

*
[

*order; and on the 5th of Juno, 1008, a decree was made,

that English should redeem within a twelvemonth, or be
foreclosed.

697]

On

the 20th of November, 1008, the Master reported,

th<>

that 85307. 14s. would be payable to the plaintiffs on

0th of

June, 1009. On the 27th of November, 1008, Leo, by the advice of counsel,

purchases in the two incumbrances to Burrell,

part of the

viz.,

the mortgage of

Manor

of Wicksall,

and the

statute.

On

the 5th of February, 1009, the Master's report was confirmed.

And now Marsh,

whole matter.]

executor of Duppa, sues Lee,

who

pleads this

My

Lord Keeper, Sir Orlando Bridgeman, assisted by Hale, Chief

Baron, and Justice Rainsford, held, that Lee might make use of

own mortgage. For they said, had both laiv and equity for him. First, ho had law; for that he had a precedent mortgage in 1649 (which, indeed, was but upon part), and also the statute in 1655; so that, while these remained in force, Marsh could not come in. Next, he had equity; for he having a subsequent mortgage, yet
these incumbrances to protect his
lie

that

it

being without notice, he ought to be relieved in this Court.

And,
mort-

therefore,

my Lord

Chief Baron put the case, as

if

the

first

gage had been of the manor of Wicksall to Burrell, and afterwards it had been mortgaged to Duppa, and afterwards to Lee, not having no/ ice; if afterwards Lee bought in Burrell's mortgage, he shall
hold the estate against Duppa, until he be satisfied for both the

money which he paid

last

Burrel, and also his

own money lent upon

the

mortgage: and for that he

Scaccarii. in the

said, that it

in

Camera

Court of

had been so adjudged Equity, since the King came

in, in

one Shelley's Case.

Next, he put the case of the statute, which English entered in to

Burrell, in 1655,

He

held, that

Duppa

statute here in
law.

and was afterwards bought by Lee from Burrell. shall not bring Lee to any account upon this equity, any otherwise than he may do at common

was agreed that the lands were extended [ * 098 J upon the statute at the third part of the true value. Now, at common law, the conusor, or he that claims under him. must bring a scire facias ad computand', as in the 4 Co. 09 b. But then
* Nota.
It

the conusee shall not account according to the true value, but ac-

157

* 699

MARSH

V.

LEE.

if

cording to the extended value, and also for the whole statute: and the conusee is satisfied by the extended value, the conusor shall
if

recover; or

the conusor will pay

down

the rest of the

money
if

which

is

behind, with damages, he shall also recover.

But

the

conusor will sue the conusee in a court of equity, then he shall bring him to account for what he hath received of the profits above
the extended value.
is somewhat more, for Lee has also equity and therefore Duppa shall not bring him to account for what he has received above the extended value, unless he has also received enough to satisfy his own mortgage of 2000Z., as well as the statute; and therefore, if Marsh will take off this statute by a suit in this Court, he must be content that Lee doth account upon

Now

then our case here

on

his side,

the extended value for the whole 800Z. and damages.

Secondly, they held, that whereas part of the manor of Wicksall was mortgaged to Burrell, but that now the whole manor was mortgaged to Lee, that yet the first mortgage should not extend to protect more than that part of the manor which was first mortgaged to
Burrell.

And my Lord
is

Chief Baron Hale put the case thus:

If a

man

and then mortgages the whole toB., and then mortgages the whole to C, and afterwards C. purchases in the first mortgage, that shall not protect more
seised of sixty acres, and mortgages twenty to A.,

than the twenty acres; but

first

it

shall protect those

all

twenty acres so as

B. shall never recover that, until he pay C.

the

money upon the

and
]

last

mortgage.

Hale said, that he thought that in this case, inasmuch mortgage to Lee (d) was only of part of * Wicksell, that therefore Marsh might bring Lee to an account upon the extended value, whareupon these two manors were extended upon the statute; and if Lee had received the money due upon the
Tint
[

*699

as the

statute,

by receiving

of the profits according to the extended value,

or

if

she will pay

to for

statute, or if she will

come

the residue of the money due upon the pay down so much as the proportion will Montield, that then she may discharge the manor of

down

Monfield.
pointed, and

But then my Lord Keeper asked him how he would have it aphow much should be laid upon Monfield, and how much upon Wicksall? for that part of Wicksall is under that extent.
(d)

That

is to

say the mortgage which Lee took as assignee of Burrell.

158

MARSH
To which Hale answered,
that

V.

LEE.

700

if

Marsh did sue Leo

for the disdis-.

charge of this statute from Moniield, that Monfield should be

charged by her paying down as much as the proportion comes to, or when Lee shall have received so much according to the extended value, and that he thought there might be a proportion found out by
the Court.

Nota. Sir H. Finch

son's case (/), Grove

(e), counsel for Lee, cited Primate and Jackand Grove's case (g), and Mrs. Calami/ s case (h),

That a purchaser or mortgagee all which were resolved in this Court coming in upon a valuable consideration, without notice, and pur
chasing in a precedent incumbrance, it shall protect his estate against any person that hath a mortgage subsequent to the first, though before the last mortgage, though ho purchased in tho incumbrance after ho had notice of the second mortgage.

Marsh v. Lee, the pleadings of which are fully stated in 1 Chancery cases, 162, lays down the doctrine, never since allowed by the judges to bo questioned, that a mortgagee, without notice, purchasing the first incumbrance, 'shall thereby protect his estate against any person having a mortgage subsequent to the first incumbrance, though he purchased in tho incumbrance after he had notice of the subsequent mortgage. [The court leans against the doctrine of the consolidation of mortgages: see Thomas' Appeal, 6 Casey, 378; Rowan v. Rifle Mfg. Co., 29 Conn. 282; Lamson v. Sutherland, 13 In Edmunds Vt. 309; Phelps v. Ellsworth, 3 Day, 397.] v. Povey, 1 Tern. * 187, there were first, second, and third [ * 700J mortgagees, who had all lent their money without notice. The third mortgagee, hearing of tho two former securities, bought in the first incumbrance, a judgment that was satisfied; it was strongly insisted at tho bar, that, though the trado of buying in incumbrances had been formerly countenanced, yet that it was in truth a thing against conscience, and contradictory to many established But, after long debate, the Lord Keeper rules of law and equity. North told them, he wondered the counsel laid their shoulders to a point that had been so long since settled, and received as the conthere "It is true," said his Lordship, stant course in Chancery. have been strong arguments used against the unreasonableness of this practice, and there might be likewise strong reasons brought for the maintaining of it, and so it was at first a case very disputable;
' ;

(e)

Afterwards Earl of Nottingham.

(f) Hard res Rep. num. Bedworth v. Primate. (g) Churchill v. Grove. Nels. Rep. 89. 1 Ch. Ca. 35. (h) Higgon v. Sydall, Calamy, and others, 1 Ch. Ca. 149.

159

* 701

MARSH

V.

LEE.

but being once solemnly settled, as it wa3 in the case of Marsh v. Lee, he would not now suffer that point to be stirred." See also Holt v. Mill, 2 Tern. 280. The foundation and reasons for the doctrine established in the "As principal case, are thus explained by Lord Hardwicke, L. C. " that a third in to the equity of this Court," observes his Lordship, cumbraneer "having taken his security or mortgage without notice of the second incumbrance, and then being puisne taking in the first incumbrance, shall squeeze out and have satisfaction before the second, that equity is certainly established in general, and was so in Ma rah v. Lee, by a very solemn determination by Lord Hale, who gave it the term of the creditor's tabula in naufragio;' that is the Perhaps it might be going a good way at first; bat leading case.
'

it

has been followed ever since, and, I believe, was rightly settled, only on this foundation, by the particular constitution of the law of It could not happen in any other country but this; this country. because the jurisdiction of law and equity is administered here in different courts, and creates different kinds of rights in estates; and, therefore, as Courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior 'force and strength to a legal title to estates; and, therefore, where there never thought fit is a legal title and equity of one side, this Court that by reason of a prior equity against a man who had a legal title, that man should be hurt; and this by reason of that force this Court necessarily and rightly allows to the common law and to legal titles. But if this had happened in any other country, it could never have made a question for, if the law and equity are administered by the same jurisdiction, the rule qui prior est tempore potior est [* 701] jure, must hold:" * Worthy v. Birkhead, 2 Ves. 571. And
;

see the. remarks of Sir IF.

Page Wood, V.-C,

in

Hooper

v.

& J. 108, 109, 2 Set. Dec. 1164, 4th Ed. Harrison, 2 Although, however, under the Judicature Acts, law and equity are administered together in the High Court, with the prevalence in all cases of the rule of equity, the law of tacking does not appear to
have been altered. The protection and priority gained by legal estates and tacking, were temporarily abolished by the Vendors and Purchasers Act, 1874 (37 & 38 Vict. c. 78), which enacted that, "after the commencement of this Act (7 August. 1874), no priority or protection in land by shall l)e given or allowed to any estate, right, or interest reason of such estate, right, or interest being protected by or tacked and full effect to any legal or other estate or interest in such land; person shall be given in every Court to this provision, although the
claiming such priority or protection as aforesaid shall claim as a purchaser for valuable consideration and without notice; provided
estate, always, that this section shall not take away from any but for right, title, or interest, any priority or protection, which as against this section would have been given or allowed thereto

160

MARSH

V.

LEE.

* 702

any estate or interest existing before the commencement of this

Act."
Act, see Pease v. Jackson, 3 L. B. Cti. App. 576. It was repealed as to England by the Land Transfer Act, 1875, (38 & 39 Vict. c. 87), sect. 129, as from the date at which it camo into operation, except as to anything dnly done thereunder before the commencement of the Act; and as to Ireland it was repealed bv sect. 73 of the Conveyancing and Law of Property Act, 88 (44 & 45 Vict. c. 41).

As

(Sect, 7.) to the effect of this

puisne mortgagee gaining priority by tacking a In the well-known case of Brace v. The 'Duchess of Marlborough, 2 P. Wms. 491, the whole doctrine is very accurately stated by Sir Joseph Jekyll, M. P., in a series of rules which it is proposed to consider. The first general rule there laid down, within which, indeed, the principal case falls, is, "that, if a third mortgagee [without notice of the second mortgage when ho advanced his money (rule 6,J6.)] buys in the first mortgage, though it be pendente lite, pending a bill brought by the second mortgagee to redeem the first, yet the third mortgagee having obtained the first mortgage, and got the law on his side, and equal equity, ho shall thereby squeeze out the second mortgagee; and this the Lord Chief Justice Hale called a 'plank' gained by the third mortgagee, or tabula in. naufragio, which construction is in favour of [* 702 ] *a purchaser, every mortgagee being such pro tanto." The rule is also applicable where a third mortgagee under such circumstances, purchases and takes an assignment of a precedent statute or judgment, for as long as these are in force the mesne incumbrancer as is laid down in the principal case "cannot
1.

Rule as

to

legal estate or interest.]

come

in."

Higgon

v.

Sydclal, 2 P.

Wms.

492, cited;

Edmunds

v.

Povey, 1 Vera. 187. It has even been held that such legal advantage might be obtained by dishonest means, as by a purchase of the legal title at a fraudulent undervalue from persons ignorant of their rights (Culpepper's Case, cited in Sanders v. Delinge, Freem. Ch. Rep. 123), by the theft of a statute (Sir John Fagg's Case, 1 Vern. 52, cited; S. C, nom. Sherly v. Fagg, 1 Ch. Ca. 68; 2 Vern. 159, cited; and see Siddon v. Charnells, Bunb. 298); but these cases would not now be Carter v. Carter, 3 K. & J. 636; see also, Huntington v. followed. Greenville, 1 Vern. 49; Mocatta v. Bell, 24 Beav. 585. A mortgagee or purchaser for valuable consideration may protect himself, by obtaining without notice the legal estate from a trustee in breach of his trust (Pitcher v. Rawlins, 7 L. R. Ch. App. 259 274), or by means of a conveyance either fraudulent or obtained by means of fraud, provided the purchaser or mortgagee was clear Lloyd v. Attivood, 3 De G. & Jo. 614; 5 Jur. of any notice of fraud: N. S. 1323. [If the mortgagor and mortgagee combine in any way to * 11 WHITE OX EQUITY. 161


* 703

MARSH

V.

LEE.

of the

induce another person to loan money upon the estate in ignorance first mortgage, this fraud will postpone the mortgagee's own mortgage: Miller v. Brigham, 29 Vt. 82; Chester v. Green, 5 Humph? 26; Pratt v. Squier, 12 Met. (Mass.) 494] The legal estate, moreover, got in by a purchaser, whose equitable title depended upon a forged will, was held sufficient to protect him: Jones v. Poivles, 3 My. & K. 581; and see Robinson v. Briggs, 1 Sm. & G. 188. And upon the same principle a first mortgagee has been able to tack a second mortgage made to him (without notice of the real title), and by a person falsely claiming to be owner of the equity of redemption, and to be in possession of the mortgaged Young v. Young, 3 L. R. Eq. 801. estate as heir at law:

was first established that the third mortgagee having innocently lent his money ivithoid notice of the existence of the second, has in conscience as good a right to receive the whole money

The principle upon which and has ever since prevailed,

this doctrine

is this,

he has lent, as the second mortgagee has to be paid what he may have advanced, and then, by the assignment of the first mortgage, and the possession of the title deeds, he gets both law and equity on his side, and against that a Court of conscience will not interThe rule of equity requires pose to strip him of his protection. no more than that the third mortgagee should not have had notice of the second at the time of lending his money; for it * 703 is by *the lending the money without notice that he be[ J comes an honest creditor, and acquires the right to protect But he is not compelled to look for this protection till his debt. his debt is in danger of being prejudiced, and therefore, when that danger is just discovered to him (whether it be by a suit in equity, or by any extra-judicial means), as the honesty of his debt is not affected by the discovery, so the rights of protecting that debt, and Hence arose the the efficacy of such protection, are not prejudiced. rule which permitted the subsequent incumbrancers to purchase pendente lite: per Lord Keeper Henley, in Belchicrx. Bidler, 1 Ed. 529; and see Wortley v. Birkhead, 2 Ves. 574; Huntington v. Greenville, 1 Vern. 49; Hawkins v. Taylor, 2 Vern. 29; Belchier v. RenTurner v. Richmond, 2 Vern. forth, 5 Bro. P. C. 292, Toml. Ed. 81; Willoughby v. Willoughby, 1 T. B. 773; Robinson v. Davison, Spencer v. Pearson, 24 Beav. 266; Bates v. John1 Bro. C. C. 63; son, Johns. 304; In re Russell Road Purchase Moneys, 12 L. R.
;

Eq. 78.
It will be sufficient if the person advancing his money upon a puisne incumbrance, obtain the legal estate either at the time he makes his advance (Huntington v. Greenville, 1 Vern. 49) or afterwards in pursuance of a contract at the time of the advance for a legal mortgage (Cooke v. Wilton, 7 Jur. N. S. 281; 29 Beav. 100), but any incumbrancer may at any time get in the legal estate Wilif he has not at the time notice of a prior incumbrance:

162

MARSH
loughby
v.

v.

LEE.
v.

* 704
PFesfow,

Willoughby,

T.

It.

703; Barnett

12 Ves.

130; Sharpe v. i'V^, 4 L. R. Ch. App. 35. Notice, moreover, of his advance given by the second to the firs! mortgagee, will not prevent the third mortgagee, who lends his money without notice thereof from obtaining a transfer of and tack-

ing his mortgage to the first Peacock v. Hurt, Cooto on Mortgages, 569, 572; S. C, 4 L. J., N. S., Ch. 33, overruling the doubl thrown out by Lord Eldon in Mackreth v. Symmons, L5 Ves. 335, ante, 360. [Future advances in order to be protected must be made without notice of the intervening incumbrance: Sherras v. Caig, 7 Cranch, 45: Brinkerhoft v. Marvin, 5 Johns. Ch. 320.] On the other hand a purchaser or incumbrancer for valuable consideration, with notice, from or under a person who bought without notice, may shelter himself under the first purchaser, for otherwise a bona fide purchaser would be unable to deal with his property fully (Lowther v. Carlton, 2 Aik. 212). and, except in the case of a charity {East GreensteoVs Case, Duke, 64) if a person who has notice sells to a bond fide purchaser without notice, the latter may protect his title. See Brandling v. Ord, 1 West. Rep. 512; 8. C, 1 Atk. 512; Ferrars v. Cherry, 2 Vern. 383; Mertins v. Jolliffe, Amb. 313; Sweet v. Southcote, 2 Bro. C. C. 66; M'Queen v. Farquhar, 11 Ves. * 467, 478; Kettlewell v. Watson, 26 Ch. D. 501, [ * 701 reversing S. C. 21 Ch. D. 685. [Where advances are made in pursuance of a binding agreement, the party making them will be protected: Washburn on Real Property, 146; Farnum v. Burnett, 6 C. E. Green, 87; Crane v. Denning, 7 Conn. 387; Moronev's Appeal, 12 Harris (Pa.), 372.] The same rule also applies in the cases where a conveyance is made by a first unsatisfied mortgagee to a subsequent mortgagee, having notice of a trust, but who advanced his money without
:

Thus where two or more successive mortgagees adnotice thereof. vance their money upon the security of real property, without notice of a prior trust fraudulently concealed by the mortgagor, the first mortgagee taking a mortgage of the legal estate, the last mortgagee is at liberty, after notice of the trust, and pending a suit by the cestuis que trust for redemption of the first mortgage, to pay off all the prior mortgages, and upon getting in the legal estate, to hold it until all the moneys advanced by him have been paid in full: Bat^s v. Johnson, Johns. 304. And it seems that where a person has lent his money upon the security of land, although the Fecurity taken is in the form of a conveyance upon trust to sell and pay the sum advanced, he may by obtaining a transfer of the first mortgage gain priority over an intermediate incumbrancer: Spencer v. Pearson, 24 Beav. 266. But where a first mortgagee having notice of a second equitable mortgage, on the sale of the mortgaged property with the concurrence of the mortgagor, pays the balance of the purchase-money after deducting his own principal, interest, and costs to the mort163

* 705

MARSH

V.

LEE.

gagor, he will be liable to the second mortgagee, to the extent of the balance of the purchase-money: West London Commercial Bank v. Reliance Permanent Building Society, 27 Ch. D. 187. The authorities have gone to this extent, that any person having an unsatisfied mortgage or charge upon real property is at liberty at any time before decree, to convey the legal estate in the property, iu respect of his unsatisfied charge, to any subsequent incumbrancer who may have advanced his money without notice of any intervening or other charge or incumbrance, and by so doing may give to that other incumbrancer a right, which this Court cannot take from him, to insist upon the legal estate which, as the Court holds, he has thus properly acquired (per Wood, V.-C, Bates v. Johnson, Johns. 315). In the case, however, of a satisfied mortgage, where the mortgagee would hold simply upon trust for the original mortgagor, or those claiming under him, or in the case of a trustee of a satisfied term, a subsequent incumbrancer cannot, by obtaining a conveyance from such mortgagee or trustee who at the time he made such conveyance had notice of an intervening charge or trust, protect himself from such charge or trust by means of the legal [ * 705 ] * estate which he has so obtained: Carter v. Carter, 3 K. & J. 617, 640; Bates v. Johnson, Johns. 304, 315, 316; Prosser v. Rice, 28 Beav. 74; Harpham v. Shacklock, 19 Ch. D. 207. In the case, however, of Pilcher v. Rawlins, 7 L. R. Ch. App. 259, 274, it was laid down by the Court of Appeal that a purchaser for valuable consideration was as against the cestui que trust protected by the legal estate, obtained without notice, from a trustee
in fraud of his trust. Upon the same principle, the priorities of several successive equitable mortgagees cannot be altered by the subsequent transfer, by the mortgagor, of the legal estate to any one of them, the mortgagor being a trustee of the legal estate for all such incumbrancers:

See Sharpies v. Adams, 32 Beav. 212, 216, where Lord Rom illy, M. R. observed, "If the owner in fee simple, having the legal estate creates an equitable charge in favour of A., and afterwards a second equitable charge in favour of B., and then a third equitable charge in favour of C, I apprehend that he cannot alter these equities by transferring the legal estate to any one of them, and the factof the transfer of the legal estate to C, the owner of the third equitable charge, would not affect the rights of the first or the second." Some doubt has been thrown on this dictum in Maxfield v. Burton, 17 L. R. Eq. 15; there Ladkin deposited title-deeds with his bankers to secure the balance of his account current: and executed a memorandum whereby, he agreed, at their request, to execute any deed or deeds necessary for legally carrying out the security. Subsequently After being about to be married, he agreed to settle the property. the marriage, Ladkin, conveyed the property to the trustee of the marriage articles upon the trusts therein contained, being for the 164

MARSH

V.

LEE.

* 706

It was held by benefit of the wife and the issue of the marriage. Sir 6r. Jessel, M. R. assuming that the parties claiming under the settlement had no not ice of the equitable mortgage, that Ladkin could not deprive the bankers of their priority by conveying the

[An equitable mortgage may e created property to the trustee. by deposit of the title deeds: Jorris v. Dutcher, 16 Wis. 30* Carey V. Rawsou, 8 Mass. 15U; Mandeville P. Welch, 5 Wheaton, 2i7.] "I do not think," said his Honour, "that I am at liberty to disregard the fact that there was in this case a contract to convey for value, as well as a deposit, and I should not be the first to hold that a man who bad entered into such a contract could subsequently, at his option, squeeze out the person who was entitled to the benefit of that contract by conveying the legal estate to a person with whom he has entered- into a subsequent contract for value, even altbough that lam person should be a purchaser without notice not quite sore that without further authority I *should go [ * 706 J quite so far as my predecessor did in the case of the illustration he gave in Sharpies v. Adams (32 Beav. 213)." It may indeed be laid down as a general rule that an equitable incumbrancer, although he may have advanced his money originally without notice of a prior incumbrance, will not be allowed to gain priority by obtaining the legal estate from a person whom from actual or constructive notice, he knows to be a trustee, for in that See Allen v. Knight, 5 Hare, case he himself becomes a trustee. 272; Saundersv. Dehew, 2 Vern. 271; Maxjieldv. Burton, 17 L. R. Eq. 15; Ortiyosax. Brown, 17 L. J. Ch. 168; Heath v. Crealock, d Ch. D. 207; De 10 L. R. Ch. App. 22; Harpham v. Shacklock,l ( Winton v. Mayor of Brecon, 26 Beav. 533. So where money having been lent on an equitable mortgage without notice of a prior equitable agreement, it was held by Sir G. Jessel, M. R., that the equitable mortgagee gained no priority over the owner of the prior equitable interest by getting in tho legal estate after he had notice that the mortgagor had made himself a trustee for the owner of the prior equity: Mumford v. Stofacasser, [If a mortgagee has notice of a prior unrecorded 18 L. R. Eq. 556. mortgage, or there are equities such that his own mortgage is subject to them, yet if he assigns his mortgage for a valuable consideration to one who has no notice of the earlier mortgage or of such equities, the assignee is entitled to hold the mortgage as a prior lien upon the land solely on the ground that it was recorded first: Jones on Mortgages, Sec. 558; Corning v. Murry, 3 Barb. (N. Y.)
1

652.]

Where moreover a person knows that he is a trustee, he cannot by conveying the legal estate to an equitable incumbrancer, without receiving value at the time, and thereby committing a breach of trust, See Mumford v. deprive his own cestui que trust of his rights.
Stohwasser, 18 L. R. Eq. 563. With regard to the nature of the legal interest sufficient to afford

165

* 707

MARSH

V.

LEE.

protection, it will have been observed that the entire legal interest, a partial interest, as a term of i. e., the inheritance, is not necessary years, a judgment or statute being, as far as they will go, sufficient. See Brace v. The Duchess of Marlborough, 2 P. Wms. 491; Be Bussell Road Purchase Moneys, 12 L. K. Eq. 78. And a person who takes a partial interest in the legal estate will be postponed to an earlier legal interest carved thereout and vested Thus, where the inheritance is mortgaged subject to a in another. term, the mortgagee will be postponed to an incumbrancer who has (Ex parte Knott, 11 Ves. 609,) and an incumgot in the term. brancer getting in a later term will be postponed to one having an

earlier one.

See Hurst v. Hurst, 16 Beav. 372, where it was held that a term created by a tenant for life to secure an incumbrance on his life interest, will have priority over a subsequent reversionary term, though limited by him out of the inheritance, under a power contained in the will under which he took. Where, however, as was decided in the principal case, a puisne incumbrancer on the whole of an estate, gets in the legal * 707 ] estate of *ajpa?- thereof, the puisne incumbrance will only [ be protected to the extent of that part. Thus in the case "If a man is seised of sixty acres, and mortput by Hale, C. B. gages twenty to A., and then mortgages the whole to B., and then mortgages the whole to C, and afterwards C. purchases in the first mortgage, that shall not protect more than the twenty acres." It seems however to be doubtful whether his Lordship was right when he stated "that the twenty acres s&oiild be protected so as B. shall never recover that until he pay C. all the money upon the
first

and

last

mortgage," ante,

p. 698.

This undoubtedly would be

the case where two estates mortgaged separately were vested in one person under the doctrine of the Consolidation of Securities. See Bovey v. Skipwith, 1 Ch. Ca. 201. But there does not appear to be any valid authority for its being done under the doctrine of tacking, where only one estate has been mortgaged at different
times.

An exception to the rule takes place if the two securities are not For instance if a prior mortgagee takes an held in the same right. assignment of a third mortgage, as a trustee only for another person, he shall not be allowed to tack the two mortgages together, to the If this were permitted, a prejudice of intervening incumbrancers. mere stranger purchasing the third mortgage, by declaring he bought it in trust only for the first mortgagee, might tack both toPer Lord Hardgether, and defeat all the other incumbrancers See also Shaw v. Neale, 6 Ho. uricke, in Morret v. Paske, 2 Atk. 52. Lo. Ca. 581. So a mortgage could be tacked to a judgment only where the same person had both judgment and mortgage in the same right, and not where he had the judgment in his own right, and the mortgage in another right as a trustee only Per Lord Hardwicke, L.
: :

166

MARSH

V.

LEE.

'

T08

C, in Morret v. Paske, 2 Atk. 53. [Consolation of mortgag< somewhat similar to the doctrine of tacking: 4 Kent's Com. 17 J; Green v. U. S. Bank, 1 Cai. Cas. in Error, 112.] So, also upon the same principle, it was held that the executors of a lirst mortgagee of a leasehold, who had the legal estate in his own right, could not, as against a mesne incumbrancer, tack a mortgage of the equity of redemption which had vested in their testator < a%the executor of another. Burnett v. Weston, 12 Vc-. {'">. Harrison, K. Eooperw. 2 Hare, 14; and consider Wilmot v. Pyke, 5
(

&

J. 86.

a debt secured under a deed, although it contains trusts for others, he may by taking a transfer of a first mortgage tack so as to gain priority over a mortgagee who had Spencer v. Pearson, 24 Beav. taken his securitv before the deed.

But where a person has

266.
right,

seems that a person entitled to one security in his own and to another as executor or administrator, may nevertheless *tack if he is entitled to the beneficial in- [*708 ] Price v. Fastnedge, Ambl. terest of the latter security. See also In re Raggett, 16 Ch. 685, Blackwell v. Symes, lb., cited.

So

it

D. 117.
It may be here mentioned that the reason why a mortgage might be tacked to a precedent judgment, was, because the judgment creditor, by virtue of an elegit, might bring an ejectment, and hold upon the extended value and, as he had the legal interest in the estate, Per Lord Hardicicke, L. C, the Court would not take it from him. in Morrettx. Paske, 2 Atk. 52. The benefit to be derived by getting in a prior statute or judgment, arose from the difference of the procedure between law and For at law upon a judgequity alluded to in the principal case. ment entered up, it was debitum recuperatum, and the stated damages between tho parties, but if the creditor did not take out a fieri facias against the person of the debtor, or his personal estate, but extended the land by elegit, which the sheriff did only at the annual, and much below the real, value, the creditor held quousque debitum satisfactum fuerit, and at law, the debtor could not, upon a writ ad computandum, insist upon the creditor's doing more than account for the extended value but if the debtor came into a Court of equity for relief, the Court would give it him, by obliging the and as a jJ^'son creditor to account for the whole that he received who comes into equity must do equity, direct the debtor to pay interest to4he creditor, even although it should exceed the principal Per Lord Hardicicke, L. C, in Godfrey v. Watson, 3 Atk. 484.
;
:
:

And

see ante, p. 698. creditor moreover, as is laid down in the principal case, had this further equity,where, being a puisne mortgagee, he had brought a statute or judgment that the debtor could not bring him to account for what he had received over and above the extended value,

The

167

* 709

MARSH

V.

LEE.

unless he had received enough to satisfy his own mortgage, as well See ante, p. 698. as the statute or judgment. The advantage, therefore, that a statute or judgment gave the

mortgagee who had taken an assignment thereof, was to protect him until he had received sufficient to satisfy the statute or judgment, accounting only according to the extended value, and not according Huntington v. Greenville, 1 Vern. to the real value of the estate but when he had done so, equity very properly interposed by 52 compelling him to account for the real value by him received Godfrey v. Watson, 3 Atk. 484. One distinction between statutes and judgments, was this, that under the old law, previous to 1 & 2 Vict. c. 10, under an * 709 ] elegit only a moiety, under a statute * staple, the whole of [
;
:
:

the lands could be taken in execution. This is well explained in the old case of Higgon v. Syddal, 2 P. Wms. 492, cited. There Syddal, seised in fee of land, granted a rent-charge of 300 per annum to the plaintiff, and afterwards mortgaged the premises for 1200 to Callamy,who bought in a judgment precedent to his grant The mortgagee of the land having no notice of of the rent-charge. the rent-charge when he lent his money upon the mortgage, it was decreed that that grantee of the rent-charge had no remedy against the judgment, unless he should pay both the mortgage and the judgment, though it is to be observed that in that case, the judgment creditor, who was the tirst incumbrancer, could at law extend but a moiety, and out of the remaining moiety the grantee of the rentcharge might distrain for the whole rent but it seems that if the first incumbrance had been a statute staple, and the third mortgagee had bought it in, he should have had the whole land, until at law the cognizor of the statute by a scire facias ad computandum, had got and that could only be on payment of the penthe statute vacated alty, for equity would not in such a case have given any assistance against a third mortgagee without notice, until he was paid his mortgage, as well as his statute. Now, however, under 1 & 2 Vict. c. 110, the judgment creditor, " to whom execution has been made and delivered, is subject to such account in the court, out of which such execution shall have been sued out as a tenant by elegit is now subject to in a Court of equity," It seems, therefore, that a mesne incumbrancer can desect. 11. rive no benefit from buying in a prior judgment, as no account will now be taken in Chancery, under which alone, according to the auSee Fish. Mortg. thorities before cited, he obtained any benefit. 608, 4th Ed. Coote, 5th Ed. 919. Statutes, moreover, now appear to be obsolete: William's Ileal
;
;

Assets,

9.

2. Creditor by Judgment or Statute cannot gain Priority by getAccording to the second rule laid down in ing in First mortgage.] Brace v. The Duchess of Marlborough, 2 P. Wms. 491, a creditor can -

168

MARSH

V LEE.

710

not tack to a precedent mortgage which he gets in any sum which the credit or security of the land, the illustration there given being as follows: " that, if a judgment creditor, or creditor by statute or recognisance, buys in the first mortgage, he shall not tack or unite this to his judgment, &c, and thereby gain a preference." The reason given for the rule being " that one cannot call a judgment creditor a purchaser, nor has such creditor any right to the * land; he has neither jus in re nor ad rem; [ * 710

was not advanced upon

and, therefore, though ho releases all his right to the land, he may extend it afterwards. All that he has by the judgment is a lien upon the land, but non constat whether ho ever will make use thereof; for he may recover the debt out of the goods of the cognizor by fieri facias, or may take the body, and then, during the defendant's life, he can have no other execution; besides, the judgment creditor does not lend his money upon the immediate view or contemplation of the cognizor's real estate, for the land afterwards purchased may be extended on the judgment; nor is he deceived or defrauded, though the cognizor of the judgment had before made twenty mortgages of all his real estate; whereas a mortgagee is defrauded, or deceived if the mortgagor before that time mortgaged his land to another." And see Anon., 2 Ves. 062, Ex parte Knott, 11 Yes. 017. Upon the same principle, a person who advances money to the vendor of an estate contracted to be sold, upon the security of an assignment of the purchase money merely, and not of the land cannot, by getting in the first mortgage, tack to that the sum he has so advanced. See Laceyw. Ingle, 2 Ph. 413. A., having mortgaged an estate to B. and C. in succession, agreed to sell it to D. free from incumbrances; part of the purchase-money was to be paid down, and the rest on the completion of the purchase. During the investigation of the title, A. induced D., who was ignorant of the mortgages, to make further payments on account of the purchasemoney and having also raised a further sum from E. on the security of his contract, without giving him notice of C.'s mortgage, became insolvent and absconded. D. thereupon, with notice of all that had happened, paid off C.'s mortgage out of the balance of the purchase-money remaining due; and E., to secure himself, took an assignment of B.'s mortgage. But the balance of purchase-money not being sufficient to pay both E.'s charge and what E. had paid to B., Lord Cottenham, C, reversing the judgment of the ViceChancellor Knight Bruce, held, that E. was not entitled to tack his security to B.'s mortgage, first, because he not only did not deal upon the faith of the land, or contract for any interest in it, but, as appeared upon the face of the contract, relied upon and advanced his money upon the faith of a fund wdiich could only arise and have existence upon the supposition that the party to whom he advanced the money would not have, and at that time had not, any interest
;

169

* 712

MARSH

V.

LEE.

in the land; and, secondly, because, although E., at the .time he advanced his money, had no notice of any particular en[ * 711 ] cumbrance *on the estate, except B.'s, he knew that he was dealing for a supposed balance, out of which D., having contracted for the estate free from incumbrances, would be entitled to pay off any incumbrances to whicL the estate might be fcund to be subject; and, therefore, the equities of D. and E. were not equal. There is apparently an exception to this rule, where the first incumbrancer by judgment, has likewise a mortgage upon the estate, notwithstanding there is another judgment, prior in time to the mortgage, yet if the mortgagee had no notice of such judgment, the creditor upon the second judgment will not be allowed in an action to pray a sale of the estate so mortgaged without paying off princi-

pal

both of the first judgment and mortgage. See Thompson, 1 Atk. 521, where Lord Hardwicke, L. C, observed, " that it would be very hard, if the defendant should be in a worse condition with a prior incumbrance in his favour, than a mortgagee without notice of a prior judgment would be in this Court," and his Lordship distinguished the case from that cf Churchill v. Grove, (1 Ch. C. 35) where the defendant's purchase was subsequent to the plaintiff's statute. And it seems doubtful whether a judgment creditor, in consequence of the passing of the Judgment Act (1 & 2 Yict. c. 110), although a judgment duly registered became a charge upon the land, and the creditor has put the writ into the hands of the sheriff and got his return, under 27 & 28 Vict, c. 112 (Guest v. Cowbridge Railway Company, 6 L. K. Eq. 619), can tack any more than he could See Kinderley v. Jervis, 22 Beav. 1; Whitworth v. previously. Gaugain, 3 Hare, 416; Bevan v. Lord Oxford, 6 De G. Mac. & G. 507; Pickering v. The Ilfracombe Raihvay Company, 3 L. R. C. B. 235; Robinson v. Nesbitt, lb. 264, overruling Watts Y.Porter, 3 Ell. & Bl. 743, and see and consider Benham v. Keane, 1 J. & Hem. 697. A recent learned author seems to think that he can do so (Fish, on Mortgages, 566, 567, 4th Ed.); but he adds "that it may be considered that the doctrine of tacking is not to be extended on the strength of an accident of legislation," lb., p. 567. Under 27 & 28 Vict. c. 112, "no judgment, statute or recognizance to be entered up, after the passing of this Act, shall affect any land (of whatever tenure) until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority, in pursuance of such judgment, statute or recogni-

and

interest,
v.

Smithson

zance."

seems therefore to be clear under this section, that as a judgment, statute or recognizance shall not affect land until it shall have * been actually delivered in execution, by an [*712] elegit or otherwise, no judgment can at any rate be tacked
It

until the land is so delivered in execution. But since the coming into operation of the Judicature Act, 1873,

170

MARSH
it

V.

LEE.

* 713

is not necessary for a judgment creditor, who seeks to obtain equitable execution of the judgment debtor's equitable interest in laud, previously to sue out an elegit, as it will be sufficient for him for that purpose to obtain a receiver, and then he may tack his debt See Ex parte Evans, L3 Ch. D. 252; in to a precedent mortgage. which case it was held that a judgment creditor who had become transferee of a precedent legal mortgage of leaseholds belonging to the judgment creditor was entitled on the appointment of a receiver, to hold the lands as a security for his judgment debt, as well as for Sets also Hatton v. Haywood, 9 L. li. Ch. App. his mortgage debt. 229; Anglo-Italian Bank v. Dairies, 9 Ch. D. 2 75. Under this section it has been held that tho appointment of the receiver of the rents of land at the instance of a judgment creditor, though conditional upon the receiver's giving security, operate- as an immediate delivery of the laud in execution (Ex parte Evans, 13 Ch. D. 252; S. C. 11 Ch. D. 091) and where the security is afterwards given, the order relates back to the date when it was made, See also West head v. Riley, 25 Ch. D. 413. (lb.) A mere informal equitable mortgage, as for instance by receipts for a sum of money from the debtor, expressed to be for a sum of money " to be secured by mortgage on the A. B. estate " (Matthews v. Carticright, 2 Atk. 347; Tebb v. Hodge, 5 L. R. C. P. 73) or by deposit of deeds (Meux v. Smith, 11 Sim. 410, and see Mayor of Brecon v. Seymour, 26 Beav. 548) come within the rule, and maybe protected by obtaining a prior legal moi'tgage. But a legal mortgagee of leaseholds was not allowed to tack subsequent advances made in pursuance of a parol agreement that Ex parte Hooper, 1 Mer. 7. they should be tacked.
3. First mortgagee may tack further advance on statute or judgment as against mesne mortgagee.] Where debts which form a lien upon the land, as debts by mortgage, further charge, judgment or statute are due to the first mortgagee, he may tack the same to his security both as against the mortgagor and all others claiming under him, including mesne incumbrancers. Of this proposition the third rule in Brace v. The Duchess of Marlborough, 2 P. Wins. 494, is an illustration, viz., " that if a first mortgagee lends a further sum to the mortgagor upon a statute or judgment, he shall retain against a mesne mortgagee, till both the mortgage and See, also, Shepherd v. [*713 statute or judgment * be paid."

348; Anon., 2 Ves. 002. The reason given for the rule being that it is to be presumed that the mortgagee lent his money upon such subsequent security, as knowing he had hold of the land by the mortgage, and in confidence ventured a further sum on a security which, though it passed no present interest in the land, yet rnust be admitted to be a lien thereon: Brace v. Duchess of Marlborough, 2 P. Wms. 493. fortiori, if the first mortgagee lends on a morgage: Morret v.
Titley, 2 Atk.

171

* 714

MARSH
v.

V.

LEE.
v.

Paske, 2 Atk. 52; Godfrey 11 W. R. (L. C.) 1081.

Tucker, 33 Beav. 280; Wyllie

Pollen,

4 No tacking allowed if subsequent advance was made uoith notice However, in all these cases, as. is laid down of mesne incumbrance.] in the sixth rule in Brace v. The Duchess of Marlborough, 2 P. "Wins. 495, no subsequent incumbrancer will be allowed to tack his incumbrance to a prior legal estate, unless when he lent his money he had no notice of the second mortgage, statute or judgment; for being [A rule in many respects analowithout notice is his sole equity. gous to the doctrine of tacking is found in those cases where a mortgage is given to secure future advances and where the mortgagee is allowed to recover sums which have been subsequently advanced as against a mesne mortgagee. In the United States 'it has been established law for many years, that a mortgage may be given for future advance, that is for debts to be contracted in the future as well as those which are due at the time of the giving of the mortgage: Witezinski v. Everman, 51 Miss. 841; Bank of Utica v. Finch, 3 Barb. 293; Seymour v. Darrow, 31 Vt. 122; Goddard v. Sawyer, 9 Allen, 78; Allen v. Lathrop, 46 Ga. 133; Kansas Valley Bank v. Rowell, 2 Dillon, 371; Tully v. Harlow, 35 Cal. 302; Farnum v. Burnett, 6 C. E. Green, 87; Bracket* v. Sears, 15 Mich. 244; Lawrence v. Tucker, 23 How. 14; Moroney's Appeal, 12 Harris (Pa.), 372; Crane v. Deming, 7 Conn.

387.

In New Hampshire the rule is the other way owing to the passage of a statute to that effect: Johnson v. Richardson, 38 N. H. 355; New Hampshire Bank v. Willard, 10 N. H. 210.] The rule is the same with regard to a first mortgagee, who will not be allowed to tack a subsequent mortgage, if he made the advance having notice of an intermediate incumbrance. Suppose for instance a third mortgagee advances his money with notice of the second, and afterwards buys in the first, he cannot squeeze out, or gain priority over the second mortgage, because notice makes him come in fraudulently: Willoughby v. Willoughby, 1 T. R. 767; Riles v. Moore, 15 Beav."l81. So if a puisne mortgagee has notice of a prior incumbrance, he cannot avail himself of, the assignment of an outstanding term,
either against the incumbrance of which he had notice, or others of which he had no notice, because he had not the best right to call for the legal estate: Willoughby v. Willoughby, 1 T. R. 763, 771. The first mortgagee, as before observed, will not be allowed to

tack his subsequent security, if at the time of making the further advance he had notice of the mesne incumbrance (Lloyd v. Atwood, 3 De G. & Jo. 614: Morret v. Paske, 2 Atk. 52; Willoughby v. Willoughby, 1 T. R. 763; Shepherd v. Titley,2 Atk. 348; Bedford v. Backhouse, 2 Eq. Ca. Ab. 615.) If however, the first mortgagee make a subsequent advance with-

172

MARSU

V.

LEE.

* 715

out notice of an intermediate mortgage, he can tack, and demand the payment of the whole amount of his advances in the first place: Bedford v. Backhouse, 2 Eq. Ca. Al>. 615; Calisher v. l<'<>rbes, 7 L. R. Ch. App. 109. Secus, where after having made a second advanco without notice of a second * mortgage he fore- [*714] goes part thereof, and afterwards with notice of the second mortgage, ho advances an amount equal to that which he had foregone, inasmuch as evidence is not admissible to show the intention of the parties to continue the old debt: Shepherd v. Tit ley, 2 Atk.
350.

And

it

has been held, that although the

first

mortgage was made

to secure a sum and farther advances, if the first mortgagee made a further advance with notice of a mesne incumbrance, he will not See be entitled to priority in respect of such further advance. Shaw v. Neale, 20 Beav. 157; there an estate was mortgaged to A. to secure a

sum of money and farther advances. Afterwards, Shaw, the plaintiff, obtained a charge on the estate by means of a judge's It was held by Sir John Romilly, M. R, reversing the old order. case of Gordon v. Graham, 7 Vin. Ab. 53, pi. 3; 2 Eq. Cas. Ab. 598, that the further advances made to the mortgagor by A., after notice His Honor's of the order, had no priority over Shaw's charge. judgment was affirmed by the House of Lords, Shaw v. Neale, 6 Ho. Lo. Cas. 581; and was followed by Hopkinson v. Bolt, 25 Beav. 461; 3 De G. & Jo. 177; S. C. nom. 9 Ho. Lo. Ca. 514; London and County Banking Co. v. Batcliffe, 6 App. Ca. 722. And the custon in Brewers' Leases to tack such further advances in priority, was held bad in law; see Daun v. City of London Brewery Company, 8 L. R. Eq. 155: there on the 26th of March, 1858, a publican deposited the lease of his public-house with the defendants a Brewery Company with a memorandum, stating that the deposit was to secure payment of a sum of 202/., and interest, as well as any other sums in which the depositor might become indebted to the Brewery Company on any account, not exceeding 500/, The Brewery Company on the 7th of July, 1865, made the publican On the 11th of July, 1865, the publia further advance of 100/. can signed to the plaintiffs a firm of distillers a memorandum whereby he declared that the documents deposited with the Brewery Company, should "subject to the security" to the Brewery Company be a security to the distillers for a sum of 120/. then due, and interest and all other sums that might thereafter become due to the Notice of this second equitable mortgage teas on the. distillers. same day given by the distillers to the brewers. After the date of thts notice the publican became indebted to the brewers in a farther sum of money the price of beer supplied to the publican. The company claimed to be entitled, by virtue of a custom in the trade between brewers and publicans, to add this further sum to the amount secured by the deposit of the lease in * priority [ * 715 ] It was held, however by James, to the distillers' charge.

173

* 716

MARSH

V.

LEE.

Y.-C, that the alleged custom was bad in law for want of mutuality, and lor want of defined limits; and further, that it was imperfectly supported by the evidence, and that consequently, according to the rule laid down in Hopkinson v. Rolt (9 Ho. Lo. Ca. 514), the defendants, the Brewery Company, from and after the date of the second charge, were not entitled to any priority in respect of any goods supplied by them after the notice; and with respect to such goods, both parties having notice of the securities, their priorities were to be according to the dates of their respective supplies. And the result will be the same, although the securities are exeencuted on the same day and with the knowledge of all parties: zies v. Lightfoot, 11 L. E. Eq. 459. The principle upon which these cases proceed is this, that the second charge was so framed as if it had said, "subject to the security

it stands at the moment," that is, to the amount of money now due on the security: Per Lord Romilly, M. E., in Menzies v. Light-

as

foot, 11 L. E. Eq. 468. If the parties wish to escape

from this, they must say " subject and without prejudice to the principal moneys now due from me, and to such sums as I mav hereafter owe, not exceeding the sum of

."

(lb.)

Where, however, in such cases the further advance is made by the first mortgagee without notice of an intervening advance by the second mortwao-ee, the first mortgagee will have priority over the second
mortgagee, not only in respect of his first, but also in respect of his second advance (Calisher v. Forbes, 7 L. E. Ch. App, 109); nor will the first mortgagee lose his priority over the second mortgagee, if subsequently thereto he renews the original bill of exchange given (lb. ) And see Saunfor the sum advanced on the first mortgage. ders v. Dehew, 2 Vern. 271; Allen v. Knight, 5 Hare, 272; Cannock v. Jauncey, 1 Drew. 497, 507; 5 W. E. (V.-C. K.) 764.
5. A security not being a lien on land cannot be tacked to a mortgage against mesne incumbrances^ A security cannot be tacked unless it be a lien upon the land either specifically or generally, hence it was held that as copyholds previous to 1 & 2 Vict. c. 110 were not liable to an extent upon a judgment, a judgment debt See Heir of could not be tacked to a mortgage of copyholds. Cannon v. Pack, 6 Vin. Ab. 222, pi. 6. There a bill was filed by the heir of the mortgagor to redeem a mortgage of copyhold lands upon payment of principal and interest. The defendant insisted to have a judgment, which had been assigned to him, * 716 ] satisfied before the plaintiff * should redeem. Lord Har[ court, L. C, however, allowed the plaintiff to redeem without satisfying the judgment, observing that copyhold lands are not liable to an execution on a judgment, ergo the judgment shall not be tacked to the mortgage in this case." Upon the same principle a prior mortgagee has never been per-

174

MARSH

LEE.

* 71 7

mittocl to tack a bond debt against mesne incumbrances^ other specialty creditors, or even against the mortgagor himself; but only, as we shall hereafter more fully show, against the mortgagor's beirs

See post, p. 121. or devisees only. Hence, in a suit of foreclosure or redemption, the mortgagee be ing entitled to only six years' arrears of interest against the land, under 3 & 4 Will. 1, c 27, s. 42, but to twenty year.-' arrears und< r a covenant for payment on bond, by 3 & 4 Will. 4, c. 42. s. 3, he could not, as the covenant or bond created no charge or lien upon the land, tack the covenant or bond against mesne incumbrancers or even the mortgagor, though, as we shall hereafter see, he may do so as against the heir or beneficial devisee of the mortgagor. Hunter v. Nockolds, 1 Mac. & G. 040; Selby v. Pomfret, 3 De G. F.

&

Do

Jo. 595; Sinclair v. Jackson, 17 Beav. 405 G. & S. 240. See now sect. 8 of the Real
i

Elvy

v.

Norwood,

Property Limitations

and cases there cited. of tho debtor does not prevent the first mortgagee tacking a mbsequent judgment as against a subsequent incumbrance. There tacking was allowed, See Baker v. Harris, 10 Ves. 397.
Act, 18
t.

post, 722,

The bankruptcy

at the

where the judgment was docketed, although no execution was issued time of the bankruptcy. Bat as by a recent statute (27 & 28 Vict. c. 112, s. 8) a judgment will not affect any land until such land shall have been actually delivered, execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment, tacking by the first mortgagee, will only be allowed to take place, provided such execution be prior to the date of the receiving order, and before notice of tbe presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. See Ex parte Boyle, 3 De G. Mac. & G. 515, Bankruptcy Act, 1883,
s.

45.

So where the mortgage has been satisfied before judgment recovei^d, even although there has been no reconveyance, the judgment cannot be tacked to the mortgage. See The Mayor of Brecon There two sums were due to A. from B., v. Seymour, 20 Beav. 548. one on mortgage of lands, the other on a covenant. A. having
brought action for both sums, B. paid the amount due on mortgage into Court. A. took this * sum out of Court and f * 717 ] It was held by recovered a judgment on the covenant. Lord Romilly, M. R.. that the mortgage having been satisfied before tho judgment had been obtained, A. had no right to tack his judgment.

which an incumbrance sought to be tacked can mortgagee cannot tack a subsequent incumbrance taken in pendente lite, the Us pendens being duly registered because tho suit would affect him with notice of the mesne incum6. As to the time at be acquired.] A first

brance.

Morret

v.

Paske, 2 Atk.

52.

175

* 718

MARSH
a third mortgagee,

V.

LEE.

who has advanced his money without get in and tack the first mortgage pendente lite, and up to the decree (Brace v. Duchess of Marlborough, 2 P. "Wms. 491; Hawkins v. Taylor, 2 Vern. 29; Belchier v. Butler, 2 Eden, 523; Belch ier v. Renforth, 6 Bro. P. C. 28.
But
notice,

may

mortgagee had by his answer submitted (on to him) to assign to the plaintiff the second mortgage, the third mortgagee has been held entitled pendente lite to obtain an assignment of the first mortgage, and to hold the estate against the second mortgagee till he should be paid what was due to him upon both, he having had no notice of the second mortgage when he advanced his money. Belchier v. Butler, 2 Ed. 523.
after the first

And

payment

of

money due

But after a decree to settle priorities, a party to the cause will not have the advantage of tacking his puisne incumbrance to a prior one taken on since the decree: (Bristol v. Hungerford, 2 Yern. 525; Worthy v. Birkhead, 2 Ves. 574; 3 Atk. 81;) for there is then a judgment for the creditors that they shall be paid according to their priorities (Ex parte Knott, 11 Ves. 619; Re Scott's Estate, 14 Ir. Ch. Bep. 57 ) but in bankruptcy the right to tack in equity is not lb. affected by the relation back to the act of bankruptcy.
:

The last 7. Tacking not allowed where legal estate outstanding.] rule laid down in Brace v. The Duchess of Marlborough, 2 P. Wms. 495, is " that when a puisne incumbrancer buys in a prior mortgage,
in order to unite the same to the puisne incumbrance, but it is proved that there was a mortgage prior to that, the Court clearly holds, that the puisne incumbrancer, where he had not got the legal estate, or where the legal estate was vested in a trustee, could there make no advantage of his mortgage but, in all cases where the legal estate is standing out, the several incumbrances must be paid according to their priority in point of time: qui prior est tempore potior est jure.'''' See Symmes v. Sy?nonds, 4 Bro. P. C. 328; Toml. Ed.; Earl of Bristol v. Hungerford, 2 Vern. 524; 1 Eq. Ca. Ab. [*718] 142; Turner* v. Richmond, 2 Vern. 81; Beckett v. Cordley,
1 Bro. C. C. 353; Manningford v. Toleman, 1 Coll. 670; Phillips v. Phillips, 4 De G. P. & J. 268; Thorpe v. Holdsworth, 7 L. B. Eq. 139.

And it is immaterial whether the outstanding legal estate is a fee or a term for years (Ex parte Knott, 11 Ves. 618), or a term attendant upon the inheritance (Charlton v. Low, 3 P. Wms. 330), which in equity unless merged under the Satisfied Terms Act (8 & 9 Vict, c. 112) will follow all the estates created out of such inheritance, and all incumbrances subsisting thereon (lb. 330). But a term already attendant before that Act might be clothed with a trust for a mortgagee or purchaser (Shaw v. Johnson, 1 Dr. & Sm. 412; Plant v. Taylor, 7 H. & N. 211; Owen v. Owen, 3 H. & C. 88, and
see Sug. B. P. Stat. 282, note

2nd Ed.

176

MARSH

V.

LEE.

* 719

8. As to bettei- right to call for legal es'ate.] But if any one of tho incumbrancers has a better title than the others to call for a conveyance of the legal estate, as for instance when a declaration of trust of the legal interest, as for instance of a term, has been made in his favour, or he has made the trustee a party to his conveyance, or he has possession of the title-deeds, equity will consider him aa being in the same position as if ho had the legal estate; Windham v. Richardson, 2 Ch. Ca. 218; Wilkes v. Bodington, 2 Vern. 599; Earl of Pomfret v. Lord Windsor, 2 Ves. 486; Ex parte Knott, 11 Ves. G18; Maundrell v. Maundrell, 10 Ves. 271; Wilmot v. Pike, 5 Hare, 22; Pease v. Jackson, 3 L. R. Ch. App. 570; Robinson v. Trevor, 12 Q. B. D. 423, and the comments thereon; Fourth City Mutual Benefit Building Society v. Williams, 14 Ch. D. 140. The reason why tho joining of the trustees of the term in a conveyance to tho purchaser (not conveying the term), but making themselves parties, was held to have this effect, was because it was considered that they had in effect made a declaration that they would hold the term for that purchaser. Maundrell v. Maundrell, 10 Ves. 270. An express declaration of trust, however, will not give any protection against a subsequent bond fide incumbrancer without notice, who has taken an actual assignment of a term (Stanhope v. Earl Verney, 2 Eden, 81), nor will an incumbrancer, it seems, gain any advantage by his having a mere bare right to call for the legal estate, if in fact he has not got it, and done none of those acts which we have before seen will give him a better right than others to call for the legal estate. Maundrell v. Maundrell, 10 Ves, 271; Ex parte Knott, 11 Ves. 609. When the legal estate in land has been vested in a building society as mortgagees, and the * society on being paid [ * 719 ] off, endorses a receipt on the mortgage deed as provided by sect. 42 of the Building Societies' Act, 1874 (37 & 38 Vict. c. 4'2), the effect of the receipt is to vest the legal estate in the person who in equity is best entitled to call for it, and not necessarily in the person who actually paid off the society. Thus, where there are successive equitable mortgagees, and the society is paid off by the mortgagor, the effect of the statutory receipt is to vest the estate in the equitable mortgagee who is first in point of time (Fourth City Mutual Benefit Building Society v. Williams, 14 Ch. D. 140), unless the society is paid off by an equitable mortgagee who had no notice of prior incumbrances, in which case the legal estate vests in that morcgagee, notwithstanding that there are incumbrances prior to his in point of date. lb., and see Pease v. Jackson, 3 L. R. Ch. App. 576; Carlisle Banking Co. v. Thompson, 28 Ch. D. 398; W. R. Nov. 22, 1884, p. 210. A puisne incumbrancer, moreover, may lose the advantage of the legal estate by parting with it: thus, where a puisne mortgagee, having obtained the legal estate, conveys it away on a sale of the

* 12

WHITE OX EQUITY.

177

* 720

MARSH

V.

LEE.

estate, he will only be entitled to claim a share of the purchase money according to his priority in date. See Rooper v. Harrison, 2 K."& J. 86. Sir W. Page Wood, V.-C, observed, "If the Court does find the legal estate interposed, it deals with the money according to priorities." lb. p. 109. So where a party making further advances, without notice of a judgment, has under an assignment of a previous equitable mortgage containing an agreement to execute a legal mortgage, the best right to call for the legal estate, such party will upon obtaining a legal mortgage, have priority for his further advances by tacking them to the legal mortgage, which will relate back to the time when See Cooke v. Wilton, 29 Beav. the equitable mortgage was given. 100. There Anne Hailing, in 1856 and 1857, deposited the title deeds of some freehold property with Ann Broughton to secure two sums advanced to her, and agreed in writing to execute a mortgage of it to secure the money. In 1858 the plaintiffs lent Anne Hailing 91Z. 10s., and on the 1st of July they obtained a transfer of the two prior equitable mortgages, then amounting to 368Z. 4s. Anne Hailing at the same time signed a memorandum by which she declared that the 368 Z. 4s., and the money due to or to be advanced by the plainThe plaintiff advanced tiffs should be a charge on the property. further sums, and on the 29th of September, 1858, Anne Hailing conveyed the legal estate in the property to the plaintiffs, subject to redemption on payment of 520Z., the aggregate of the Previous *to the transfer of the mortgages [ *720 ] moneys due. to the plaintiffs, viz., on the 29th of June, 1858, the defendant obtained a judgment against Anne Hailing for 638Z. 12s. 10d., duly registered under 1 & 2 Vict. c. 110; but the plaintiffs did not know of the judgment until March, 1859. Sir John Romilly, M. R., I think," held that the plaintiffs had priority over the judgment. said his Honor, ''that the equitable mortgage and memorandum of deposit gave to Ann Broughton, and to all persons claiming through or under her, a right to have a legal mortgage of the property affected by the equitable mortgage, and of which the title deeds had been deposited, and that consequently, the legal estate, when conveyed, must be considered to have reference back to the date of that security when given, and that all sums properly advanced are included in it; and if this be so, then the mortgagee is entitled to make use of the legal estate so obtained/to protect him not only for the amount due at the date of the deposit, but for any further or subsequent advance made by him on the security of the same property, bona fide, and without notice of any prior charge, on the
' ;

mortgaged

principle of the doctrine which

is

usually called tacking."

9. As against whom debts being a lien upon an estate can be Debts which are a lien on the estate, as a mortgage debt, tacked.} a further charge, and even a statute or judgment as well as a further charge may be tacked, as against the mortgagor ( Brace v. Duchess

178

MARSH

V.

LEE.

* 721

of Marlborough, 2 P. Wms. 494, Jackson v. Langford, 2 Ves. 602; Shepherd v. T#te?/, 2 Atk. 348; Ex parte Knott, 11 Ves. 609; Ex parte Cox, 2 M. D. & De G. 480; Barnett v. Weston, 12 Ves. L30; Baker v. Harris, 10 Ves. 397), and also all persons claiming under him, including mesne incumbrancers (lb.), because it is to be presumed that he lent his money upon the statute or judgment as knowing that he had a hold of the land by the mortgage, and in confidence ventured a further sum on a security, which though it passed no present interest in the land, yet must be admitted to be a Hen tberon: Brace v. Duchess of Marlborough, 2 P. Wms. 493. It seems, however, that a further advance cannot be tacked to a See first mortgage as against a surety for the first mortgage debt. Boicker v. Bull, 1 Sim. N. S. 29; 15 Jur. 4; Hopkiuson v. Bolt, 9 H. Lo. Cas. 514; In re Kirkwood's Estate, 1 L. R. Ir. 108; Forbes v. Jackson, 19 Ch. D. 015, and see ante p. 127, 128, and the other
cases there cited. Formerly a first mortgagee was entitled to tack, as against the assignees in bankruptcy of the mortgagor, a subsequent judgment docketed, though no execution had issued at the time of the * bankruptcy (Baker v. Harris, 10 Ves. 397), but it seems [*721] he could not now do so unless execution were completed by seizure and sale before the date of the receiving order, and before notice of the presentation of any Bankruptcy Petition, by or against the debtor, or of the commission of any available act of bankruptcy bv the debtor: See Ex parte Boyle, 3 De Gr Mac. & G. 515; 17 Jur. 979, the Bankruptcy Act, 1883 (45 & 40 Vict. c. 52), sect. 45.

Against ivhom mortgagee has a right to tack debts not being on the mortgaged property.] With regard to the right of a mortgagee to tack to his security debts not being liens upon the estate, it seems that in the case of a mortgagee of real estate he might as against the heir (Margrave v. Le Hooke, 2 Vern. 207; Jackson v. Langford (Anon.), 2 Ves. 002; Morret v. Paske, 2 Atk. 53; Jones v. Smith, 2 Ves. Jun. 370; Elvy v. Norwood, 5 De G. & S. 240) and devisee (Heames v. Bance, 3 Atk. 030; Coleman v. Winch, 1 P. Wms. 775; Du Vigier v. Lee, 2 Hare, 340) of the mortgagor, always tack specialty debts, and under the Simple Contract Debts Act (3 & 4 Will. 4, c. 104) he may as against the heir or de10.

liens

Rolfe v. ChesSpecialty debts however, taking priority over simple contract debts prior to the passing of 32 & 33 Vict. c. 40, which made them payable pari passu. See In re Williams' Estate, 15 L. R. Eq. 270. In the case of a mortgage of personalty the mortgagee as against the executor of the mortgagor, could always tack, not only bond and other specialty (Anon., 2 Vern. 170), but also simple contract debts: Coleman v. Winch, 1 P. Wms. 775; Ecclcsx. Thawill, Preo. Ch. 18.
ter,

visee of the mortgagor, tack simple contract debts:

20 Beav. 010; Thomas

v.

Thomas, 22 Beav. 341.

179

* 722

MARSH

V.

LEE.

Bat a mortgagee cannot tack debts not being liens upon the mortgaged estate, whether they be bond or other specialty debts or
simple contract debts, as against the mortgagor (Challis v. Casborn, Prec. Ch. 407; Archer v. Suatt, 2 Stra. 1107; Elvy v. Norwood, 5 De Gr. & Sm. 240), his creditors (Coleman v. Winch, 1 P. Wtns. 775; Heames v. Bance, 3 Atk. 630; Hamerton v. Rogers, 1 Ves. Jan. 513; Adams v. Claxton, 6 Ves. 225; Rolfe v. Chester, 20 Beav. 610), his assignees for value (Trou'ghton v. Troughton, 1 Ves. 86; Jackson v. Langford (Anon.), 2 Ves. 662; Adams v. Claxton, 6 Ves. 225; Talbot v. Frere, 9 Ch. D. 568; not following Spa Idin g v. ThompSee, son, 26 Beav. 637; hire HazelfooV s Estate, 13 L. R. Eq. 327. also, In re General Provident Assurance Company, Ex parte National Bank, 14 L. R. Eq. 507, 516), devisees in trust for payment of debts (Heames v. Bance, 3 Atk. 630; Irby v. Irby, [ * 722 ] *22 Beav. 217), parties entitled to the benefit of a charge for payment of his debts (Price v. Fastnedge, Amb. 685), or the assignee of his heir (Coleman v. Winch, 1 P. Wms. 775; Bayly v. Robson, Prec. Ch. 89), executor (Coleman v. Winch, 1 P. Wins. 775; Vanderzee v. Willis, 3 Bro. C. C. 21, 23), or devisee (lb.,) or any mesne incumbrancers, whether by mortgage, judgment, or statute; Morret v. Paske, 2 Atk. 52; Powis v. Corbet, 3 Atk. 456; Lowthian v. Hasel, 3 Bro. C. C. 162; Anon., 2 Ves. 662.

Upon the same principle a surety who has paid off the first mortgagee, cannot tack the costs of defending an action by him, against a puisne mortgagee, inasmuch as such costs constitute only a simSmith v. Bloxam, 2 Hem. & Mill. 457. ple contract debt.
The reason why such tacking of debts by mortgagees has been allowed, is to prevent a circuity of action against persons in whose hands the equity of redemption of the mortgaged properties were assets for the payment of debts: see Heames v. Bance, 3 Atk. 630; Lowthian v. Hasel, 3 Bro. C. C. 162; Anon., 2 Ves. 662.
Under the doctrine
under him, where the mortgage debt was secured, dinary covenant in the mortgage deed or a bond, for redemption or for foreclosure have claimed Will. 4, c. 42, s. 3, arrears of interest for twenty
of tacking, a mortgagee, or those either

who

claim
or-

by the

might in a by statute 3

suit

&

years before the institution of the suit against the heir or beneficial devisee of the mortgagor under the covenant or bond, although by the Act for the Limitation of Actions and Suits (3 & 4 Will. 4, c. 27), s. 42, under the deed, without either the covenant or bond, his right to recover interest was limited to six years' arrears: Du Vigier v. Lee, 2 Hare, 326; Hunter v. Nockolds, 1 Mac. & G. 640, 650; Elvy v. Norwood, 5 De G. & Sm. 240. Bat now by the Real Property Limitation Act, 1874, s. 8, the limitation of twelve years imposed thereby to actions and suits for the recovery of money charged on land, applies to the personal remedy on the covenant in a mortgage deed as well as to the remedy

180

DUKE OF ANCASTER

V.

MAYER.

* 723

against the land; Sutton v. Sutton, 22 Ch. D. 511; Fearnside v. Flint, 22 Ch. D. 579. As to the right of a mortgagee to tack costs and expenses to mortgage debt. See Vol. II., note to Casborne v. Scafe.

The maxim of [Doctrine of Tacking Encumbrances Restated. non-interference between equal equities is the foundation of the It is an essential of this equity doctrine of tacking in equity. that there shall be a legal right iu the party claiming to tack, or such a superior equitable right as gives him a preferable claim to the legal estate; both the claims must also be vested in him in the
same
character.

right to tack exists if one claim is in his own right and the other as executor or trustee. The English doctrine of tacking mortgages does not exist to any extent in the United States, it is an extremely harsh and inequitable In some of the States further advances to the mortgagor doctrine. may be tacked to the mortgage and he is entitled to priority in regard to the same, provided he has received no notice of a mesne incumberance. These further advances, in order to be protected, must be made without notice of the intervening encumberance. Recording of a mortgage is a sufficient notice.]

No

*DUKE OF ANCASTER
2Qth June, 1783.

v.

MAYER.

[*?23]

16th June, 1784-85.

c. c.

July, 1785.

[reported 1 BRO.

454]

Primary Liability of Personal Estate to the Payment of Debts. Exoneration.] Personal estate, not specifically bequeathed,

is

primarily liable
it

to the

payment of

the debts of a testator, itirfess

be exempted by express words or necessary implication.

Notwithstanding a charge upon a term for payment of debts, a leasehold estate purchased by the testator subject to a mortgage sliall bear the burthen of that mortgage, it not being properly the debt
of the
testator.

Charles Bertie made his will, dated the 9th of November, 1759, and thereby devised as follows: "I give and devise to Thomas 1S1

* 724

DUKE OF ANCASTER

V.

MAYER.

Noel and John Mayer, their executors, administrators, and assigns, all those my manors, lands, &c, in Lincolnshire, to have and to hold to them, from the time of my decease, for the term of ninety nine
years,

upon the

trusts hereinafter mentioned."

He

then gave the

real estate, subject to the term, and in default of issue of his

own

and other sons in tail male remainder to the plaintiff for life, remainder to his first and other sons in tail male, with remainders over, and afterwards declared as follows: " I do hereby declare, that the term and estate so as aforesaid limited to them the said Thomas Noel and John Mayer, their executors, administrators, arid assigns, for ninety-nine years, is upon the special trust and confidence, and to the intents and purposes following; that is to say, Upon trust and confidence that they the said Thomas Noel and John Mayer, * 724 ] * their executors, &c, shall out of the rents and profits, or [ by mortgage, assignment, or demise of all or any part of my before-mentioned manors, &c, or any of them, for all or any part of
life,

body, to Montague Bertie, for

remainder

to his first

the said term of ninety-nine years, or otherwise as to their discretion

shall

seem meet, levy and

raise so

much

lawful

money

of Great Brit-

ain as will be sufficient to pay

the time of

and satisfy

all the debts I shall

owe at

my funeral charges, and all the legacies and sums of money given by me in and by this my will, and pay and apply the same accordingly. And my will and mind is, that after
decease,

my

so

much money

said, together

ing thereof,

answer the purposes aforeand charges in or about levying or raisHe then dethe said term shall cease and determine."
shall be raised as shall
all costs

with

vised as follows
his executors

"J give and devise to my brother, Montague Bertie, and administrators, all that the manor of East and West Deeping, holden by lease from the Crown, subject to the yearly rents and covenants reserved in the said lease, and also subject to the mortgage thereon to Mrs. Millicent Neate, of London, for 6500Z. but
:

in case

my

said brother shall not be living at the time of

my

decease,

then I give the said estate and premises, with the appurtenances,
subject as aforesaid, to such person as shall be entitled to the free-

hold of
will

my

real estate at the time of

my

decease,

by

virtue of the

aforesaid limitations in this

my

will."

And

towards the end of his

all

he devised as follows: " Item, I also give

all

my household goods,

and
he

other

my

goods, chattels, effects, and personal estate what-

soever and wheresoever, unto

shall be living at the time of

my said brother, Montague Bertie, if my death; but in case he shall be

182


DUKE OF ANCASTER
V.

MAYER.

725

then dead, I give and devise the same to such person as shall be entitled to the freehold of

my

limitations in this

my

will:

real estate, under and by virtue of the provided always, and I do hereby declare

my mind and
leave issue of

will to be, that in case I shall at the time of

my death
all

my own

body, that then and in such case as well

and every the before mentioned uses, devises and limitations to my said brother, Montague Bertie, the Duke of *An- [ * 725 ] caster, and their respective heirs, and also the devise of tho residue of my personal estate, shall be utterly void; and in such case I do hereby will, and my mind is, that all my real estate, subject to
the said term of ninety-nine years, shall descend
rules of law, and that the residue of

according to the

my

personal estate shall go and

be distributed in such a manner, and to and among such persons, as if I had died intestate. And I do hereby nominate and appoint the
said

Thomas Noel and John Mayer

I

executors of this

my

last .will;

do hereby will, order, direct, and appoint, that my said executors and the survivor of them shall and do pay, satisfy, and discharge my funeral charges, and all my debts and legacies, as soon

and

become due and payable, by such methods, ways, and means, and in such manner as he or they, or their counsel learned
as they shall

and think meet; and it shall and may be lawful to my said 'executors, or either of them, to deduct and satisfy to him or themselves, out of my personal estate, or out of the moneys to be raised out of the said term of ninety-nine years before to them devised, all such disbursements, expenses, and charges which they or either of them shall be put to in proving this my will, or by any other ways or means whatsoever in or about the execution
in the law, shall in that behalf advise of this

my

will."

Montague Bertie died in the lifetime of the testator, and the plaintiff became entitled, under the limitations in the will, to the
real estate.

The

leasehold estate

had

been, several years before

to

the testator's father for 6500Z.

Mrs.

Neate, and

mortgaged by in 1765 the

mortgage was assigned, by the desire of the testator, to Sir Thomas Palmer, who advanced the testator a further sum of 1001. on it, and the testator conveyed other estates as an additional security for the G600Z.

This cause was

first

heard before the

late

Lords Commissioners.

Mr. Mansfield, Mr. Madocks, and Mr. Kenyon, for the

plaintiffs.

* 727
[

DUKE OF ANCASTER

V.

MAYER.
first,
;

"720] There

are three questions in this case:

is

* whether

the personal estate

exonerated of the debts

secondly,

whether the mortgaged estate is liable to the mortgage; thirdly, what interest the duke takes in the personal estate. As to the first, although the personal estate be the original fund for the repayment of debts, yet the testator may discharge it
against the devisee of his real estate; and
if

his intent so to dis-

charge
govern.

it

appear upon the face of the

will, that

intention shall

Here he has created

a term for the

which

sufficiently points out his intention.

is

payment of his debts, The cases show that an

v.

intention so demonstrated

sufficient.

Bamfield
it

Wyndham,

Prec. Ch. 101; the testator providing a real fuud for the
of his debts,

payment was held, she Wainwright v. Bendeshould take it exonerated from the debts. lowes, 2 Yern. 718 devise for payment of debts, and the personalty held exempt. In Walker v. Jackson, 2 Atk. G24, the personal estate was held to be a specific legacy, and of course exonerated. Anderand giving
his personalty to his wife,
:

ton

v.

Cooke, 4th June, 1775:

Thomas Calendar gave

several specific

parts of his personal estate; he then gave part of his real estate in
strict settlement,

trustees, in trust to sell for the

and devised the remainder of his real estate to payment of debts; and in case that
real estates.

should not be sufficient to discharge the debts, he charged the deficiency

on the devised
it

He

then gave the residue of

his personal estate, not before bequeathed, to his wife.

The Court
v.

held, she took

Colvile,

wholly exempt from the debts.

Talb. 202; in Holliday
v.

In Stapleton
before

Ca.

t.

Bowman,
v.

Bathurst, 1 Bro. C. C. 145, cited; Kynaston

Lord Kynaston (i), and

mortgage
This
shall

Glede

v.

Glede, the

same doctrine has been

is,

held.

Secondly, the second point

also
[

whether the
the
real

be

discharged

by

estate.

point

* 727

*is

386,

determined by the case of Serle v. Si. Eloy, 2 P. Wins. which is recognized in Galtonx. Hancock, 2 Atk. 437.
is,

Thirdly, the last question

what

interest the

duke

shall take.

He

claims under the description of the person

who should come into

possession,

and must take the same interest that Montague Bertie would have taken; that is, the absolute interest.

with payment of all (?) The testator by his will charged his whole estates his debts, legacies, and funeral expenses: and for that purpose he devised particular lands to trustees in trust to sell the same, and pay his debts, legacies, and funeral expenses; and he gave to his wife all his personal estate whatsoThe debts exceeded the personal ever, and constituted her sole executrix. Lord Bathurst determined the personal estate to be exempt. estate.
.

184

DUKE OF

A .VU ASTER V.

MAYER.

* 728

Mr. Selwyn, Mr. Arden, and Mr. Ainge, for the defendants. As to the last question, we contend the duke; can take a limited interest for life only, there being

no addition of executors or adminis-

trators in the will.

Secondly, with respect to the second, that the

mortgaged premises must bear their own burthen. As to the other, which is the principal question,
several clauses in the will.
next,

it

depends on the

The

first

clause creates the term; the

which

is

material,

is

that by which he gives the personal es-

tate; the third that

appointing the executors, and directing them

to

this case there is

pay the debts by such means as they should think meet. In no specific bequest of the personal estate. If he had meant the executors should pay the debts out of the term, he would not have left it in their option how they should pay them. In order to exonerate personal estates from the payment of debts,
there must be an express direction that they shall be paid out of

some other fund,

but here
is

or something

tantamount to such express

direct inn;

no necessary implication that the fund should be exempt. In Bamjield v. Wynham the debts were more than the amount of In Waimoright v. Bendeloices the estate was the personal estate. ordered to be sold out and out. In Bromhallv. Wilbraham (at the Rolls, November, 1734), the testator gave all his personal estate to his sister, whom he made executrix; he gave his real estate to his brother, charged with his debts; but the personal estate was held
In the case of Lord Inchiquin v. O'Brien (k) (Sth Hardwlcke, the Earl of Thomond by his will directed * that all his debts should [ * 728 ] be paid. He devised his real estate to Lord Inchiquin and
to be first liable.

February, 1744), before Lord

another, in trust that they should

the estate, and out of the the

make sale of money arising

the
first

a sufficient part of

therefrom, together

with the rents and

profits, should, in

place,

pay

ail

the debts

which he should owe at the time of his death, and his legacies; and He gave Sir "Wilsubject thereto he limited his real estate over. liam Wyndham 20,000Z., and some other legacies; then followed these words: "and his further will was, that the whole money to
be raised by such sale should be taken as part of his personal estate;" lastly, he gave the rest and residue of his personal estate
whatsoever, after payment of his debts, to the defendant: the personal estate was
first

applied.

In Fereges

v.

Robinson, Bunb. 301,

the same doctrine was laid down, because, as the Court observed,
(k)

Lord Inchiquin

v.

French,

Amb.

;;:i;

Cox.

1;

Wils. 82.

185

* 729

DUKE OF ANCASTER

V.

MAYER.
In

there were no negative words to exonerate the personal estate.

Stephenson
trust,

v.

Heathcote

(I),

Harper devised lands

to trustees, in

by

sale or mortgage, to raise so

much money

as would pay

all his debts and funeral expenses; he then gave a silver tobaccobox to A. B., and gave all the residue of his personal estate to his

wife,

and made her executrix: Lord Northington ordered the perfirst

sonal estate to be

applied.

Lord Commissioner Ashurst delivered the opinion of himself and Lord Commissioner Hotham. The first question is, whether, under

the will of Charles Bertie, the plaintiff

estate,

is

entitled to the personal

discharged of the debts.

Secondly, whether the personal esto

tate is the

fund out of which the mortgages are

is,

be paid.

Thirdly,
estate.

what

estate the plaintiff takes in the freehold

and personal

The main question

different grounds.

whether the
v.

plaintiff is entitled to the per-

sonal estate, discharged of the debts.

The

cases are determined on

is

Adams

Meyrick, 1 Eq. Ca. Ab. 271, which

in favour of the plaintiff,

made

the ground that the testator said

that the trustees do and shall, by mortgage, &c, pay: this

[

* 729

is

a very * loose ground,

v.
v.

Fereges
case.

In Walker
is,

and has been since abandoned. is the most sensible Jackson, 2 Atk. 624, Lord Hardivicke says, the
Robinson, in Bunb. 301,
first

general rule

that the personal estate shall be

applied, but

that against his devisee the testator

may charge

his real estate in-

The personal estate must be first applied, stead of his personal. unless there are express words or a plain intent to the contrary.
is, whether you can whether the testator meant to exempt the personal estate from the debts, for there are no technical words by which it is to be done. In this case, if it depended on the two

The only question

in every case of this kind

satisfactorily find out

clauses in the will, the intent could not be doubted

to raise sufficient to

the trustees are

to be con-

pay

all

the debts.

The next thing

whether there is anything in the latter part of the will It seems highly probable the to overturn this apparent intent. word " residue " was thrown in without any meaning, or to give an option to the trustees out of which fund to take their expenses, and At all events it excludes the that they might not be in advance.
sidered
is,

idea that the charge was to

modern

authorities have

The more fall upon the personalty. gone in exclusion of the personalty, upon
(0 1 Eden, 38.

186

DUKE OF ANCASTER

V.

MAYER.

* 730

much

less reason:

Anderton

v.

C. C. 145, cited.

We

think the

Cooke; Holliday v. Boxvman, 1 Bro. Duke of Ancaster is entitled to the

should be charged with the mort-

personal estate, exempt from payment of debts.

The next question

gages.

is,

whether
386,

it

are bound by the case of Serle v. Hancock, 2 Atk. 424, to Galton and v. of the devised estate. out paid must be mortgage the decree that duke takes in the perthe interest what question is, The third

And

as to this point,

we

St. Eloy, 2 P.

Wms.

He took an absolute one there is no need of express words for this purpose it is beyond a doubt Montague Bertie would have taken absolutely then, where the testator gives it by the description of the person entitled to the freehold, he does not state the interest so given to be a less interest than that of Monsonalty.
:

tague Bertie.
* A petition was presented for a rehearing, which came [ * 730] on before Lord Thurlow, the 16th of June, 1784. The arguments xised, and the cases cited, were a recapitulation of those before the Lords Commissioners.

Loed Chancellor Thurlow. It would be highly advantageous was a settled rule where the personalty shall be applied to the payment of debts, and where it shall be exempted from them. One step has been taken towards such a rule, by its being laid down, that charging the estate in any way is not of itto property if there
self

being the fund

an exemption of the personal estate that the personal estate first liable, where it is to be aided by either a legal
;

or an equitable fund,

it

must be

itself in

the

first

place applied.

The question that next arises is, whether a real estate being charged, and the personal given away, a presumption arises that
this shall be

exempted from the

debts.

I never heard,

till

the ar-

guments

in this case, that such a rule

;

had been extracted from the

authorities on the subject

on the contrary, I have always under-

stood that, in order to exempt the personal estate, the testator must
express an intention so to do, although no particular form of words

was necessary

for the purpose.

I therefore take the rule in primis

to be, that neither the charge of the debts

upon the

real estate, nor

the gift of the personal estate,

is sufficient

of itself to

exempt

it.

But

it is

indubitably true, that express words are not necessary to

:

exempt the personal estate the question therefore presumption can be drawn of the testator's intention

is

whether a

to exonerate

187

* 731

DUKE OF ANCASTER

V.

MAYER.

the personal estate.

It is impossible to express in definition

what

circumstances shall be sufficient to raise this presumption. It must arise from the context of the will but. with great deference to the opinion which has been given, I think there is not sufficient
;

in this will.

After devising his real estate, the testator takes up the term; he places it before any of his other estates, and before his * 731 ] issue, so that he meant it to be a subsisting * term for the
to
to

payment of his debts. He gives his leasehold estate Montague Bertie, but without any predilection for he gives it
;

whoever should be entitled to the possession of his freehold estate. He then proceeds to declare the trusts of the term which are to and after raising them, raise money to pay his debts and legacies
;

the term

then disposes of the rest of his personal He afterwards determines what shall be done with the perestate. In the provision which sonal estate in case he should have issue. he superadds, he takes notice of the devise of the personalty, and
is

to cease.

He

calls it a residue

by which he means the devise of the personal He provides then, that if he estate after the specific bequest. should die leaving issue, the dispositions he had made should fail
;

this

was not essentially necessary, though apparently so. He then makes a general provision for the discharge of the executors, who so that it is given them in the character of execuare also trustees It is also material to observe, that, in the special and general tors. disposition of the personal estate to the same person who shall be
;

entitled to the possession of the real, the personal to the real,

tion, then, is

which is settled with the whether any inference is to be drawn that he meant it, or whether it it should go with the burthen the law throws upon the purpose of for is to be presumed that it should be exonerated,
throwing that burthen on the freehold estate, which he has given The inference rather seems to me to be, in the strictest manner. that he meant to protect the real estate, and therefore that the perBy chance he has gone fursonal should bear its natural burthen. his for, where he has given directions for the indemnity of ther
:

made to accrue utmost strictness. The quesis

executors, he has directed the expenses to be taken out of either the He has, in that clause, arranged the estates personal or real estate.
as the

law would arrange them

if

which affords an inference that he

I should

meant the

real estate only to be in aid of the personal.

therefore think,

the rule were, that the gift of the personal estate

188


DUKE OF
to a stranger
it

NT ASTER

V.

MAYER.
[

* 733

was

to be

was sufficient to raise a * presumption that exempt from the debts, hi' had sufficiently
it

* 732

here expressed his intention that

I should have
spect,
if

should not bo so

but I tako

the general rule to be the other way.

no doubt on the intention of the testator

in this re-

there were not another point, which I think ought to under-

I mean the mortgage of the leasehold estate. The case of Serle v. St. Eloij (m) went upon the idea of the charge upon the real estate being the debt of the testator. If that case were recent, and had not been followed, I should have thought, upon The difference bethe face of it, it was very open to argument.

go further inquiry

tween tho cases is, that if it had been real estate mortgaged by the but, in the prefather, it would have been liable only as a charge
;

sent case, the debt of the father falls

upon the

estate in

partly as being a charge, and partly as a debt,

estate.

two ways upon the personal

It

must be referred

to the

stances of the debt of 6000?., and the estate on which

and, as that point

must stand

over,

Master to consider the circumit was secured; I shall think it no impediment

to the justice of the

also.

Court to defer the decree upon the other point

The Master having raado his report that the 6000Z. was a charge upon the leasehold estate prior to the testator's having any interest in it, and that he had only covenanted for the payment of the money upon the transfer of the mortgage from Mrs. Neate to Sir Thomas Palmer (w), the cause was again set down for argument on the 4th July, 1785, and then stood for judgment till the next day, when the Lord Chancellor pronounced his decree.
Lord Chancellor Thurlow.
be
liable, in

Whether the personal estate should

the

first

instance, in exoneration of the real estate, to

the payment of debts in wills of this kind, upon looking into the
cases I find to be a point so slender and fine that I cannot collect

any certainty upon tho question; but so much uncertainty

abounds, * that, could the will of the testator be referred
to a
[

* 733

number

of lawyers, they

would probably entertain a

diversity of opinions

upon

it.

The point ought

it,

to be fixed; and, in order to

make
to.

it

so, I

take
first

the rules have been these, and should be adhered

(m) 2 P. Wins. 38b\ (re) A further sum of 100/. was,
it

In the

seems, advanced to the testator.

Vide

ante, p.

7:25.

1S9

* 734

DUKE OF ANCASTEK

V.

MAYER.

place, that the personal estate is liable in the first instance to the pay-

ment of the debts ; but (in exception to this) it is agreed that the testator may, if he pleases, give his personal estate, as against his heir or any other representative, clear of the payment of his debts: and then it becomes a question, what is the mode of expression to give the personal estate exempt from such payment, when the rule Perhaps it might have of law is, that such estate is first liable. laid adopted the rule down in Fereges v. to have unwise been not Robinson (o) that the testator must use express words for that purpose; but it is impossible to abide by the opinion given in that The second rule is, case, consistently with the rules in other cases. stand in lieu of explain, that shall declaration there is a where that This rule has been laid down so-long, and acted upon press ivords. so constantly, that if other judges were to put the construction of wills upon other grounds, how wise soever it might have been originally to have done so, it would be very unwise to mate the ad-

ministration of justice take a course contrary to former rules

fore
it is

There-

if

there be a declaration plain, or manifestation clear, so that

will,

apparent, upon the face of the

is,

that there is such a plain

intention, the rule then

not to disappoint, but to carry such in-

tent into execution.

But should not such intention manifestly apis,

pear, there is not a single case

that

the"

personal estate

which does not take it for granted by law, the first fund for the payment

of debts.

Bertie, the testator

In regard, then, to the general intention of the will of Charles was seised of a real estate, which he had in his
to other lines of the family of Bertie;
it

contemplation (exclusive of the idea of his own children), and

wished to leave

it

and con-

sequently devised
[

to

Montague
life,

Bertie, with remainder

*734] over

to Peregrine * Bertie for

&c.

so far, in respect
it

of the real estate his intention

was

to fix

in the

name

and blood of the family. The next object he had in view was a leasehold estate, which he held under the Crown; that estate was a chattel interest, and with regard to that, he does not show such a wish to fix and continue that estate in the line of Bertie: his apparent wish was not so strong as in respect to the disposal of his real estate; for had it been so, though he could not have created an entail of this leasehold estate with limitations over, yet he might have prevented the
(o)

Bunb. 301.

190

DUKE OF AXCASTEIt
first

V.

MAYER.

735

taker of

it

from alienating

it.

Had
it

the testator been asked

the question, whether ho meant that this part of his estate should be subject to the mortgage, or to give
real estate, or to

entire to the first taker of the

in

charge the term of nine nine years

exoneration

of the other estate, this

might have been a very doubtful question, and merely conjectural, though, perhaps, he might have answered, that that estate should pay the debts; but whatever his intention was,- he has positively given it subject to the payment of the debt: therefore, if another estate had been appropriated to payment of his debts, and this had been his debt upon the estate, I should have concurred with the Lords Commissioners (p) but in following them in that course, in which they considered it as being the clear inten:

tion in the

mind

of the testator, that the real estate should be so

it

appropriated, I rather think otherwise; for

the testator wished
it

appears to

me

as if

should not, and that he chose that the lease-

hold estate should be so appropriated rather than to have burthened

the real estate.
Bertie for life implies the intention of giving
but, in case of failure of issue,

For the mode of limiting the estate to Montague him a personal bounty;
he gives
it to the next heir who Had the real estate been expressly

should come into possession, &c.

charged with payment of the debts, or the testator shown an anxious intention to have sacrificed his real estate in preference to the

leasehold or his other estate, for that purpose, by the mode of disposing * of his estates, such a circumstance might

* 735

have been

sufficient to

have turned the rule of law; and

it

have charged

must have been appropriated to the payment it any manner he pleased.

of debts,

let

him

When

the testator purchased this leasehold estate he purchased

the equity of redemption; and the mortgage was to be considered

merely as a real incumbrance upon the estate itself, and not a personal debt, as against the purchaser, according to the rules of this Court and cases decided. For if a man purchases an equity of redemption, subject
to

an incumbrance
this estate,

that shall be

following the land, and

not a personal one.

a real incumbrance The question is,

whether by purchasing

and assigning the mortgage from

Mrs. Neate to Hoare, and covenanting for payment of debts, he Had Evelyn v. Evelyn, 2 P. Wins. did not make it his own debt.
659, never
(p)

been decided, a
ti.

fair

argument

might
v.

havo
1

arisen

Cr. 7G3,

Sed vide Bootle and the note,

Blundell, 1 Mer. 227; Bickhani

J.

Cruttwell,

My.

&

post, p. 74

191

* 736

DUKE OF ANCASTER
;

V.

MAYER.

because, where a man transfers a mortgage, upon that head and covenants for the payment of the debt according to the rule of law, he makes it his own debt, and makes himself liable and such a debt has priority to be sued upon that covenant Now, I do not know in what before other simple contract debts. Court, or by what rule the debt would have followed the pur;

but Evelyn v. Evelyn, has decided, that though he might be at law liable, yet where there are real assets sufficient for the payment of the incumbrance, they shall be applied for that purpose; and it is to be understood with respect to such transaction, that the party did it by way of accommodating the charge, and not of making the debt his own. The difference between the estate descended and purchased is nothing, unless the circumstance of purchasing creates the difference; but that affords no archaser personally
;

gument.

The next question

his

is,

whether,

when he mortgages an

estate of

would create a difference; as if, in Evelyn v. Evelyn (q). an additional real fund had been secured for making the debt good, that would have turned the judgment: it would not; for nothing makes it his

own

as an

ulterior security, that circumstance

* 736

debt so *effectually as the covenant to pay; for it does not create the debt, but only operates as collateral to the debt.

A man
itor,

money was borrowed,

there
is

mortgages his estate withotit covenant, yet, because the the mortgagee becomes a simple contract credand in that case the mortgage is a collateral security; and if
a

bond

or a covenant, then there

is

a collateral security

of a higher species, but

no higher by means of the mortgage merely: therefore, having such security amounts to nothing; and I have no doubt but that if the case had been stated to the Lords Commissioners, namely, that this incumbrance was not one of the testator's debts, and did not fall upon the personal estate, that they

would have considered it as inherent to the leasehold estate. The argument of its not falling upon the testator answers his real intenBut as to the real intention, I should have agreed with tion better. the Lords Commissioners, could that intention have been made clear; that the intention does not amount to a declaration plain, in any sense in which these words have been properly applied. For the purpose of securing property and the due administration of justice in a free country, judges ought to abide constantly by
{q)

2 P. Wras. 659.

192

DUKE OF ANCASTKIl
real principles,

V.

MAYER.
as

* 737

and by such beneficial rules

may

afford

some

rea-

sonable judgment, without applying to a superior tribunal.

fixed rule, that the personal estate

It is a

must be

first liable,

unless another

fund is provided; the testator must express his intention to dis charge that estate from the payrueut of debts. With regard to the intention apparent upon this will, it is said such intention is most anxiously limited to the raising of the term Whether the expression be more or loss, it of ninety- nine years. is but subjecting the estate to the payment of debts; and it cannot extend so far as to suppose he burthened his real estate in exoneration of the personal estate. If there had been in the gift of the personal estate words of a sufficient force, according to my notion of a declaration plain, I should not have changed the force of those words; but the intent of these *words, as [ * 737 ]
they stand, naturally leans to subject the personal estate
to the debts.

With

respect to the second clause, had that stood

alone, I confess that

would have been

liable to a

degree of infer

ence; but constructions thus picked up, and collected from more

circumstances than are necessary for the purpose, are not good

ways of finding out the intention of the testator; and it is better to rest upon settled rules, unless you can collect more favourable and

With regard to the next clause, that carries more weight, because the trustees are directed to pay, not only the.
forcible observations.

expense of the probate of the

but to pay
all

the charges

will, which is expressly mentioned, and expenses that should arise by prov

ing the

will, or

by any other means, &c.

How are these

to

to

be paid?

Out

of the personal estate, or the

means

to be raised out of the

term of ninety-nine years?

out of the personal estate
the purpose.

They have authority

optional clause, an

an

pay the whole empowering the

executors to pay out of this fund before the other fund

is ready for has precisely arranged the estates in the same order that the law would have done; he. has made his personal

He

estate first liable,

and then the term.

The true ground upon which

by express words, or

I proceed

is

not upon any of these criticisms, but simply upon the

rule of law, the testator not having declared

any other declaration, which would tend

in

law to the purpose of

preserving the personal estate for any given purpose whatsoever.

to Adams v. Meyrick (r), that depended on the circumstance of the personal estate being a provision for the wife; and, therefore,
(r)

As

Eq. Ca. Ab. 271.

* 13

WHITE ON EQUITY.

193

738

DUKE OF ANCASTER

V.

MAYER.

the Court forced a construction upon the will, and it is, as Lord Hardwicke termed it, in Walker v. Jackson, 2 Atk. 624, a weak case:
in the latter case, the republication of the will

much

relied upon.

As

"rest and residue," I upon them all, so as

was an argument upon the words could have wished his Lordship had decided to have left a particular note upon each of
to the

cases determined

them; for such determinations as those cases afford have occa* 738

As to sioned great perplexity upon the rule of law. Stapleton v. *Colvile (s), in that case the wife was executrix, and, exclusive of the context of the will, with re-

gard to the option given to her to charge either fund, there never was a stronger case against charging the real estate; for he gives the whole real estate to the wife, and to be charged with debts; he wishes the continuance in his name and family, and yet
with the payment of the debts. Lord Talbot observed, arise from the examination as to the quantum of the Lord Talbot took it debts and the amount of the personal estate. as clear, that such an examination should be gone into. In Stephen-

charges

it

much might

son

v. Heathcote (t), it is said expressly, no examination can be had. In that case, Lord Keeper Henley relied much upon the wife being The case was this; that the testator gave all his real executrix. estate to R. and his wife for ever, with a charge thereon for pay-

ment

of debts; and, after disposing of other property,

he gives a

silver tobacco-box to his uncle,

and

all

the residue he gives to his

wife forever,
observation

whom he appointed

sole executrix.

The Lord Keeper's

to be collected

was from the words of the will, and from no circumstances out of it; and, upon general principles and rules established in the cases, that the Court would not go into the testator's circumThe tesstances, as it would establish a rule not to be adhered to.

upon

this case was, that the intent of the testator

tator intended to charge his personal

estate with

payment

of his

and only made his real estate an auxiliary fund; according to the rule of law, where the intent of the testator is plain, or words tantamount to express words, that is sufficient to take it out of the rule, and that it could not be the intention; for the last .clause, of giving the silver tobacco box, and then the residue to his wife, is not sufficient to show his intention to give the residue free from
debts, debts, but that the primary
(s)
(t)

fund should be

liable.

Ca.
1

t.

Talb. 202.
38.

Eden,

194

DUKE OF ANCASTER
In the present case, I

V.

MAYER.

f39

am obliged to differ from the Lords Comand consider tbe whole personal estate as liable to (lie payment of the debts; and with respect to the leasehold estate, that the charge under * which it came to the tes- [ * 739 tator was prior to his purchasing it, and inherent in the estate, and the estate itself left liable to answer it, and that neither
missioners,
j

the personal estate nor real estate ought to be charged with that
debt.

The judgment, ex

relatione.

The rule laid down by Lord Thurloic, in the principal case, viz., that the general personal estate of a testator is the primary fund for the payment of his debts, unless it be exempted by express words or
manifest intent, has been fully recognized, although the difficulty of gathering the intent, where the exoneration of the personal estate does not depend upon express words, has induced subsequent judges to join in the doubt intimated by tbe Lord Chancellor, of the wisdom of the departure from the older decisions, requiring express words to exempt the personal estate from its primary liability. See also Watson v. Brickwood, 9 Ves. 453. [The order in which the assets of decedent's estate are to be taken for the payment of debts is generally, (1) The personal estate not expressly or by implication exempted; (2) Any estate particularly devised simply for the payment of debts; (3) Estates descended; (4) Property devised

and bequeathed to particular devisees and legatees which are charged with the payment of debts; (5) General legacies which contribute prorata; (6) Specific legacies; (7) Personal or real estate over which the decedent has exercised a power of appointment: Smith Eq. 270; Clark v. Henshaw, 30 Ind. 144; Breden v. Gillihand, 17 P. F. Smith, 34; Marsh y. Marsh, 10 B. Mon. 360; Miller
v.

Harwell, 3 Murph. 194]

I. Exemption of personalty from payment of debts.] The rule, therefore, as to the primary liability of the personal estate does not apply; first, when it is exempted by express' words of a testator:

Morrow
rest
v.

v. Bush, 1 Cox, 185; Young v. Young, 20 Beav. 522; ForPrescott, 10 L. 11. Eq. 545. [There is a presumption against intention to exonerate the personalty, yet if it is exempted

by express words there

is

no doubt as to

its

freedom from

liability:

Cleary's Appeal, 11 Cases, 54.] It may be here remarked that it is not essential to the validity of a direction that a fund of personalty should be exempted from payment of debts, that the fund should be specifically bequeathed, fcr it is equally good, though the fund not being disposed of falls into the residue: Coventry v. Coventry, 2 Dr. & Sin. 470.

195

* 740

DUKE OF ANCASTER

V.

MAYER.

personalty is expressly exempted from payment of debts, thrown upon a third fund which proves insufficient, are they and they cannot come upon the personalty until every other fund, even real estate settled by the will of the testator, has been exhausted. See Morrow v. Bush, 1 Cox, 186, where Lord Thurlow, L. C, observed " that although the testator never had it in contemplation

Where

that the settled estates should be burthened (inasmuch as he conceived he had provided a sufficient, sum for the payment of the debts), and although he probably might have made the personal estate applicable before them, in case he had foreseen the event, yet the words of exemption being express and general, it was impossible to get rid of them, and the settled estates must therefore bear the See also Young v. Young, 26 Beav. 522. burthen." When, however, land is simply given for payment of * 740 ] debts in * exoneration of the personalty, if the land is insuf[ ficient for that purpose, the primary liability of the personalty remains for the purpose of making good the deficiency: Colvile [If a person borrows money and gives a v. 'Viddleton, 3 Beav" 570.

bond and mortgage

for the amount, the mortgage is merely collateral security for the obligation, and an heir or devisee may call upon the executor to exonerate the land by an application of the personal assets to the discharge of the mortgage: Hewes v. Dehon, 3 Gray, 205; Cumberland v. Codrington, 3 Johns. Ch. 229; Case of

Keyser, Jr., 9 S. & K. 71.] If, moreover, the land and the residue are both given exempt from the payment of debts, on failure of the other funds, the residue is Lord Brooke v. Earl of Warwick, 1 H. & T. 142. primarily liable. Secondly, the rule as to this primary liability of the personal estate does not apply, when it is exempted by the manifest intention of the testator. In considering this subject it should be always borne in mind that the burthen of proof lies on those who contend that the personal estate is exempted from its primary liability to payment of debts: Whieldon v. Spode, 15 Beav. 539; Lord v. Wightwick, 1 Drew. 576; Kilford v. Blaney, 31 Ch. D. 56, reversing S. C. 29 Ch. D. 145. It has been frequently decided, that neither a charge upon land, nor a trust to sell, nor the creation of a term for payment of debts (see' Tower v. Lord Rous, 18 Ves. 132, 138; White v. White, 2 Tern. 43; Bridgeman v. Dove, 3 Atk. 201; Lord Inchiquin v. French, 1 Cox, 1; Tait v. Northivick, 4 Ves. 816; Hancox v. Abbey, 11 Yes. 186; Bootle v. Blundell, 1 Mer. 221; Rhodes v. Rudge, 1 Sim. 79;

Collis v. Robins, 1 De Ch & Sm. 131; Walker v. Hardwick, 1 My. & K. 396; Ousely v. Anstruther, 10 Beav. 453; Quennel v. Turner, 13 Beav. 240); nor a devise of real estate, upon the condition of the devisee paying the testator's debts {Bridgeman v. Dove, 3 Atk. 201; Meade v. Hide, 2 Vern. 120; Henry v. Henry, 6 I. K. Eq. 286) will exempt the personalty from its primary liability. "It is not suffi-

196

DUKE OF ANCASTER
cient," says
tor
v.

V.

MAYER.

* 741

Lord Thurlow, "to charge the real ostato, but a testa must show that it was his purpose that the personal should not See, also, Booth be applied: " Samwell v. Wake, 1 Bro. C. C. 145.
Blundell, 1 Mer. 220. parol evidence will not be admitted to show the intention of a testator to give his personal estate free from debts; nor will any inference be drawn of the testator's intention by a consideration of the relative amounts of his personal estates and debts; nor, consequently, will any enquiry be directed in order to ascertain such relative amounts: Stephenson v. Heathcote, 1 Eden, 38, overruling the cases of GainsboroiKjh, v. Gainsborough, 2 Vern. 252, and Lady Granvill v. The Duchess of Beaufort, 2 Vern. 648. gift, moreover, of the real and personal estate together will not be sufficient to exonerate the latter from its primary liability: Boughton v. Boughton, 1 Ho. Lo. 406; Tench v. Cheese, 6 De G. Mac. & G. 453. [If the testator has directed the sale of his real estate, and then the proceeds of the sale and the personal estate are thrown into one fund, which he directs to be subject to the payment of debts and legacies, the real and personal estate must contribute in proportion to their relative amounts to the payment of the debts and legacies. But if real and personal property are given together to one person subject to charges, the personal estate remains primarily liable: Williams on Executors, 1712 (7 Eng. Ed.); Adams v. Brackett, 5. Met. 280; Cox v. Corkendall, 2 Beas. 138; Elliott v. Carter, 9 Grat, 541.] But if the realty is devised upon trust for sale, and the proceeds * are blended with the personalty upon trust for [ * 741 ] payment of debts, the realty and personalty are rateably liable for that object: Roberts v. Walker, 1 Russ. & My. 752; Dunk v. Fenner, 2 Russ. & My. 557; Fourdrin v. Gowdey, 3 My. & K. 383; Stocker v. Harbin, 3 Beav. 479; Salt v. Chattaway, 3 Beav. 576; Bedford v. Bedford, 35 Beav. 584; Tatlockx. Jenkins, Kay, 654. Upon the same principle, where a testator had empowered his trustees to sell his real and personal estate in case and as often as they should think fit, and had directed them to pay certain legacies out of the residue of his real and personal estate, and the moneys arising from the sale thereof, it was held by the Lords Justices, affirming the decision of Bacon, V.-C, that the legacies were payable pro ratCi out of the real and personal estate: Allan v. Gott, 7 L. R. And the result is the same where real estate is Ch. App. 43V). directed to be converted, and to become part of the personal estate: Bright v. Larchner, 3 De G. & J. 148; Simmons v. Rose, 6 De G., Mac. &G. 411. The rule, however, of rateable payment does not extend beyond the things which the testator has expressly directed to be paid out Thus although, according to a well known of the blended fund. rule, where there is a gift by a testator of the "residue" of his property, real and personal estate, and either prior or subsequently there-

And

'

197

* 742
to,

DUKE OF ANC ASTER

V.

MAYER.

there is a gift of legacies, the legacies by implication and by force of the word "residue" are charged on the residuary real as well as the residuary personal estate (Greville v. Browne, 7 Ho. Lo. Ca. 6S9); the primary liability of the personal estate will not be thereby disturbed, the real estate being only thereby charged with the legacies in aid of the personalty: Elliott v. Dearsley, 16 Ch. D. 322, 329. See also Luckcraft v. Pridham, 48 L. J. Ch. 636; Wells v.

Bow, 4S L. J. Ch. 476. But the rule of rateable payment

will apply where a payment is directed to be made out of the rents and profits of an aliquot share of real and personal estate: see Falknerx. Grace, 9 Hare, 282; there a testator gave his real and personal estate in trust to pay one moiety of the rents, dividends, &c., to A., and out of the other moiety to pay an annuity to B. It was held by Sir G. Turner, V.-C, that the annuity was payable pro rata, not primarily out of the personal estate comprised in the latter moiety. The reason for this decision, according to a learned writer, appears to be (for none was given by the judge), that as there are no burdens regularly incident to a share of personalty, there was no prima facie liability to be negatived, and that the devisees * 742 ] took subject to the burthen imposed by * the will, irrespec[ tive of any legal presumption: 2 Jarm. Wills, 630, 4th ed. And where real and personal estate were given to trustees, upon trust to receive the rents, issues and profits thereof, and to pay certain legacies and annuities and to invest and accumulate the surplus of the whole of the property in trust for the same persons, the income arising from the personal estate was held to remain primarily See Boughton v. Boughton, 1 Ho. Lo. 406, reversing S. C. liable.

nom. Boughton v. JameS, 1 Coll. 26. Where, however, the surplus is not given to the same persons, and it appears that the testator, from the large paymeuts directed to be made out of the income of the real and personal estates did not anticipate a surplus therefrom, and the real estate is given subject to the payments, the real and personal estates will be liable rateably: Howard v. Dryland, 38 L. T. N. S. 24. A mere charge of funeral or testamentary expenses, or of both, in addition to debts upon real estate, will not of itself exempt the personalty: Brydges v. Phillips, 6 Ves. 570; Stephenson v. Heathcote, 1 Eden. 38; Aldridge v. Wallscourt, 1 Ball. & B. 312; Tait v. Lord Northwick, 4 Ves. 816; Gray v. Minnethorpe, 3 Ves. 103; Hartley Sim. 79: HTCleland v. v. Ilnrle, 5 Ves. 540; Rhodes v. Rudge, 1 Shaw, 2 S. & L. 538; Coote v. Coote, 3 J. & L. 175. Sed vide Burton v. Knowlton, 3 Ves. 107, and the comments thereon by Lord Long]thorough, C, in Tait v. Lord Northwick, 4 Ves. 823, and by Lord Eldon, C, in Bootle v. Blundell, 1 Mer. 229. But where a testator throws upon his real estate all those burthens which naturally fall upon the personal estate as a primary fund, such as funeral and testamentary expenses, debts, and legacies, a
198

DUKE OF ANCASTER
strong,

V.

MAYER.

* 743
arises, that the

though not absolutely conclusive argument

testator intended to give his personalty as a specific Legacy, free those charges, and that, consequently, the realty is the primary

Lord Rous, 18 Ves. L39; Boolle v. West, L6 Beav. L73. And, in some cases, the distinction between a mere residuary bequest, and ;i gift of all the personal estate, has been considered important: Toiver v. Lord Eons, 18 Ves. 138; Bootle v. Blundell, 1 Mer.
for their
dell,
I

payment: Tower

v.

from fund Blun-

Mer. 238; Plenty

v.

228.

And, accordingly, in many recent cases, where the personalty has been bequeathed, not as a residue, but as a whole, and the debts and funeral and testamentary expenses have been charged upon the real estate, the real estate has been held the primary fund for their payment. See Greene v. Greene, 4 Madd. 148; Michell v. Michell, 5 Madd. 69; Driver v. Ferrand, 1 Russ. & My. 681; * Blount v. Hipkins, 7 Sim. 43; Jones v. Bruce, 11 Sim. 221; [ * 743 ] Coote v. Coote, 9 Ir. Eq. Rep. 197; 3 J. & L. 175; Plenty v. West, 16 Beav. 173; Newbegin v. Bell, 23 Beav. 386; Lance v. Aglionby, 27 Beav. 65; Gilbertson v. Gilbertson, 34 Beav. 354. The same principle applies to legacies, where the funeral and testamentary charges and also legacies are in the same way thrown upon the real estate, for then it will be the primary fund for their payment Jones v. Bruce, 11 Sim. 221 Coote v. Coote, 3 Jo. & Lat. 175; Lance v. Aglionby, 27 Beav. 65; Gilbertson v. Gilbertson, 34 Beav. 354 So where the personal estate has been bequeathed in a similar manner, and the debts, general and testamentary expenses, have been thrown upon a particular real estate, devised upon trust for their payment, such particular estate will be the primary fund for their payment and if other real estate has been specifically bequeathed, not charged with debts, such last-mentioned real estate and the personal estate (being specifically bequeathed) must contribute rateablv towards the payment of the debts. See Powell v. Riley, 12 L. R. Eq. 175. The principal, however, of these cases will not be applicable where a testator subjects his personal as well as his real estate to the payment of his debts, funeral and testamentary expenses: Paterson v. Scott, 1 De G. Mac. & G. 531. It has been determined, that an express charge of some particular debts, as simple contract debts, or legacies on the personalty for the payment of which, without such charge, it would be primarily " expressio unius est exliable, will not, according to the maxim clusio alterius," raised a presumption sufficiently clear that it is only to be the auxiliary fund for payment of other charges not expressly charged upon it, but which are charged upon the land. See Watson v. Briejcwood, 9 Ves. 447, in which case a testator devised his real estate to a trustee upon trust for his nephews, \Y. \V. and R. B., He then <rave legacies to several for life with remainders over.
:

199

744

DUKE OF ANCASTER

V.

MAYER.

nieces in blank, payable at the end of a year after bis death, by his executor, and bequeathed all and singular his goods, chattels, personal estate, and effects, whatsoever and wheresoever, not thereinbefore disposed of unto his said nephew W. W., his executors, administrators, and assigns, he paying thereout all and singular legacies, and all Ids funeral expenses and simple contract debts. The testator, then noticing that he was indebted, by mortgages and bonds, for money borrowed to pay for some of the estates he had purchased, directed that those debts should be paid by the devisees in equal proportions; and, after giving an annuity to a servant out [* 744] of the real estate, he * appointed his nephew W. W., his executor. The will, it must be observed, does not charge the real estate with any debts but the testator, by a codicil, appointed a trustee in the place of the one named in the will, and empowered the new trustee, "in order to raise money for the payment of all and singular his debts and legacies, to mortgage, with the approbation of the taker for the time being of his estates, a competent part of his said freehold estates, for so much money as should be necessary for that purpose; and he directed his trustees for the
;

time being to keep down the interest;" and by another codicil he appointed another trustee, and gave other legacies. It was contended, that the personal estate was exonerated from the debts and legacies, or, at any rate, was liable only to the simple contract debts. Sir W. Grant, M. R, admitting that there was some indication of an intention to exonerate the personal estate, observes: "But it is not so conclusive as to come up to the requisition of the rule laid down by Lord Thurlow, in The Duke of Ancaster v. Mayer ( 1 Bro. By directing that the exC. 4, 454), that is, a plain intention. ecutor, to whom he gives all his personal estate, shall pay thereout all the legacies, funeral expenses, and simple contract debts, prima facie there is some appearance of an intention that he does not mean the personal estate to be liable to debts by specialty. But that alone, upon the authorities, is not sufficient." In Bootle v. Blundell, 1 Mer. 230, Lord Eldon, L. C, says, with respect to this case, that it was rightly decided, taking the will and "But if," said his Lordship, "the codicil had not codicil together. existed, there ai'e circumstances which appear to me to be such as might have given occasion to some observations which do not occur either in the judgment or in the argument: Still, I repeat that I think that case was rightly decided." See, also, Brydges v. Phillips, 6 Ves. 567 Davies v. Ashford, 15 Sim. 42 but see Anderton v. Cooke, 1 Bro. C. C. 456, cited \ Williams v. Bishop) of Llandaff, 1 Cox, 254; Dawes v. Scott, 5 Buss. 32. A bequest of all the personal estate (with or without an enumera-

tion of particulars), as distinguished from a mere general residuary bequest, will not, at any rate where the legatee is also appointed ex ecutor, exonerate the personalty passing under such bequest, although lands are devised in trust to pay all the testator's debts.

200

DUKE OF ANCASTER
See French
v.

V.

MAYER.
;

745

Chichester, 2 Vera. 508

Bro. P.

C.

192

Hare-

stated Oa. t. Talk 201; Haslewood v. Pope, 3 P. Wms. 32 1-; Ilrumiittl v. Protheroe, 3 Ves. Ill; VVo^ v. Buchanan 2S Ch. D. 446, W. N.. Jan. 24, L885, p. 7; and Aldridgev. Lord Wallscourt, 1 Ball. & B. 312, in which case all. the personal estate was * given to the executor, one of the trustees of the real [ * 745

wood

v.

'hild,

estate, in trust for the legatee.

The
('. ('.

cases, therefore,
157, cited
;

of
v.

Kyna8ton
ntan,

v.

Kynaston,
C. C.

Bro.

JfaHiday

^o?-

145, cited; Bampfield v. Wyndham, Prec. Ch. 101; cited in tho principal case, may be considered as overruled.
1 Bro.

Tho inference against the exoneration of the personal estate, when the legatee is also the executor, arises upon the assumption
that he takes tho personal estate in that character, with all the burthens attached to it, in a regular course of administration. And it has been decided that the personalty will not in similar cases be exonerated where tho legatee is not executor: Collis v. Robins, 1 De G. & Sm. 131; Ouseley v. Anstruther, 10 Beav. 453. And when it is a matter of doubt, whether the whole personal estate is meant to be given specifically or only as a residue, the omission to charge the funeral and testamentary expenses on the real estate, as well as the debts, is an argument which may be relied upon against the exemption of the personalty from its primary liability: Collis v. Robins, 1 De G. & Sm. 131; Ouseley v. Anstruther, 10 Beav. 453; and see Tower v. Lord Rous, 18 Ves. 138; Bootle v. Blundell, 1 Mer. 193; 19 Ves. 494. But a testator may by implication take away the primary liability of the personal estate, if he clearly shows his intention to place it elsewhere: thus in Webb v. Jones (2 Bro. C. C. 60; 1 Cox, 245), the testator devised his real estate to be sold, and the money to arise by the sale to be applied to pay mortgages and all other debts, the residue to be added to his personal estate; Sir Lloyd Kenyon, M. R held the personal estate to be exonerated, upon the ground, it is presumed, that the testator clearly showed that he did not contemplate the possibility of the whole personalty being applied before the realty, which it might have been if it was to be applied in its natural order: See, also, Shallcross v. Wright, 12 "Beav. 505; Fisher v. Fisher, 2 Kee. 610, see vide Wythe v. Henniker, 2 My. & K. 635. The result is the same when a testator declares that he has charged his lands with the payment of his debts in order that the personalty may come clear to the legatee {March v. Fowke, Ca. t. Finch, 414), or where he has directed the proceeds of his real estate to be applied "in part pavment" of certain legacies: Bunting v. Marriott,
,

19 Beav. L63. Again, a particular estate may be made a secondary fund in exoneration of the personalty. See Dawes v. Scott, 5 Puss. 32: there a testator devised an estate at Charleywood, and bequeathed certain specific chattels, upon trust to sell, and in the first place

201

* 747

DUKE OF ANCASTER

V.

MAYER.

to pay all his just debts, funeral and testamentary expenses and legacies, and after giving some pecuniary legacies, the testator declared that the moneys to arise by such s-ale as aforesaid, should be "the fund primarily applicable to the discharge of his said debts, funeral and testamentary expenses and And in case it should be insufficient, the testator by a legacies. " codicil charged his Highbury estate "with the payment of so much money as should be requisite to make good the deficiency;" it was held by Sir J. Leach, M. K., that the personal estate was only liable after the two estates had been exhausted. "It is not necessary," said his Honor, "that there should be words expressly exempting the personal estate, if the instruments afford a clear intention on the part of the testator that it should be exempted. The Charley wood estate and the articles to be sold therewith, are expressed to be the primary fund, and the plain intention of the testator is, See also that the Highbury estate should be the secondary fund." Bateman v. Earl of Roden, 1 Jo. & Lat. 365; Evans v. Evans, 17 Sim. 100; Bessant v. Noble, 26 L. J. Ch. 236. So it may appear by implication that it was the intention of the testator that debts and ordinary legacies should be primarily thrown upon land and impure personalty so as to leave the residue The See Wills v. Bourne, 16 L. R. Eq. 487. clear for a charity, testator first gave an annuity and certain legacies; then he devised his real estate upon trust for sale, and directed the proceeds of the the annuity and sale to be applied in payment of his debts legacies; and then he bequeathed his personal estate upon trust for payment of so much of the debts and leg? ies as the proceeds of the real estate might be insufficient to satisfy, and as to the residue Then came a direction that only such parts of his esfor charity. tate should be included in the residue as might by law be bequeathed to charitable purposes. It was held by Lord Selborne, L. C, that the testator having excluded impure personalty from the residue it followed by necessary implication that the impure personalty must be applied for those purposes which were to be satisfied before a residue was arrived at, and that this be applied in payment of the debts and legacies, it is presumed only in the event of the proceeds See also of the real estate proving insufficient for that purpose. Miles v. Harrison, 9 L. R. Ch. A pp. 316. In Forrest v. Prescott, 10 L. R. Eq. 545, a testatrix gave her real estate in trust for her two daughters, I. MacCarty and M. Streffi, for life, and afterwards each moiety was to go to the sons of each of her daughters and their families: and after giving var[* 747 ] ious * legacies she left the residue of her estate to her granddaughters. By a codicil the testatrix directed that certain debts incurred by her, for her son-in-law, J. MacCarty. should be exclusively, and in the first instance, borne by and paid out of the MacCarty moiety of her real estate, exemptincr the It was held by Sir R. Streffi moiety from payment of such debts.

[*746] *

202

DUKE OF ANCASTER

V-

MAYER.

* 748

Matins, V.-C, that the codicil amounted to an express exoneration of the personal estate of the testatrix; and that the moiety of her real estate devised to the MacCarty family was primarily liable to See also Bootle v. Bhtndell, L Mer. L93; 19Ves. 194. the debts. It seems where the testator has exempted personalty which he has bequeathed from its primary liability to debts, that the exemption will not be extended for the benefit of next of kin who take the In Waring v. Ward, 5 Ves. personalty in consequence of a lapse. ('.7-'). Lord Loughborough, ('..puts this case. "If an estate be given to A., and the personal estate to B. exempt from debts, that exemption is to be considered as intended oidy for the benefit of B., that he shall not pay those debts to which he would be liable if no such provision had been made; and it is not a general exemption of the Nothing can be more clear than that where an personal estate. exemption is created for the benefit of a particular person, not for the benefit of the estate generally, if that person cannot take it, the It follows, therefore, that on the death of benefit never arises." B., the next of kin who took the personal estate would take it subSee also Hale v. Cox, 3 Bro. C. ject to the payment of the debts. C. 322; Hancox v. Abbey, 11 Ves. 179; Noel v. Lord Henley, 7
. .

Price, 241; Dacre \. Patrickson, 1 Dr. entry, 2 Dr. & Sm. 470.

&

Sm. 186; Coventry

v.

Coo

If, however, the personalty exempted from the payment of debt-, has not been bequeathed to any one, it is exempted for all purposes, See Milnes v. and, therefore, for the benefit of the next of kin. Slater, 8 Ves. 295-305; Fisher v. Fisher, 2 Kee. 610; Dacre v. Patrickson, 1 Dr. & Sm. 186. No inference of an intention to exonerate the personalty arises from the appointment of an executor, who, there being no bequest of the personalty, was entitled to it by such nomination, although the debts and funeral expenses are thrown upon the land (Gray v. Minnethorpe, 3 Ves. 103, 104; nor where he is a trustee of it for the next of kin (M'Cleland v. Shaw, 2 S. &L. 538, 543); upon the principle, that there is no specific disposition of the residuary per-

sonal estate.
estate, either beneficially or as trustee

take the personal *for the next of [ * 748 1 debts and legacies, of payment the from exonerated kin, if another fund is provided for their payment, and the personalty has, by express words, been exempted: Milnes v. Slater, 8 Ves. 305. Where there is a simple gift of an annuity or legacy, followed by a charge thereof upon the real estate, the personal estate in such case is primarily liable, and the real estate is only charged in aid <>f the personal estate (Paget v. Huish, 1 Hem. & Mill. 663. 668). Even it seems where the annuity is charged upon the land with powers of distress and entry. Patching v Harm It. 49 L. J. Ch.

But

it is

clear that the executor

may

665.

So where there

is

a general charge of legacies upon land, or

203

749

DUKE OF ANCASTER

V.

MAYER.

a devise in trust to pay legacies generally, the personal estate will be the primary fund for their payment; as if A. devised real estate upon trust to sell and pay legacies, and afterwards gave B. a legacy of 1001U, A.'s personal estate will be the primary, his real Kirke v. Kirke, 4 estate the auxiliary fund only for its payment:

See also Roberts v. Roberts, 13 Sim. 349; Davies v. AshRuss. 449. ford, 15 Sim. 42; Ouseley v. Anstruther, 10 Beav. 453. But the will may show an intention to make legacies primarily Greaves v. Powell, 2 Vern. 248; payable out of another fund: Boughton v. Boughton, 1 H. L. Cas. 406; Whielolon v. Spode, 15
Beav. 537; Lance v. Aglionby, 27 Beav. 65. "Where there is a trust to pay particular sums out of real estate, as if A. devise real estate to B. upon trust to pay 1000Z. to C. such sum is considered as part of the real estate, and the personal estate will not, even upon a deficiency of the real estate (Hancox v. Abbey, Gittins v. Steele, 1 Swanst. 24; Lamphier v. Despard, 1 1 Yes. 179; 2 D. & W: 59; 1 C. & L. 200; Dickin v. Edivards, 4 Hare, ''73; Bateman v. Lord Roden, 7 Ir. Eq. Rep. 240, 1 J. & L. 368; Jones v. Bruce, 11 Sim. 221; Ashby v. Ashby, 1 Coll. 549; Roberts v. Roberts, 13 Sim. 336; Evans v. Evans, 17 Sim. 102; Coard v. Holderness, 22 Beav. 391; Gordon v. Duff, 28 Beav. 519), or be liable to the payment of it even though there be a direction at the end of the will, that the personal estate should be applied in payment of legacies in exoneration of the real estate (Spurway v. Glynn, 4 Ves. So in Woodhead v. Turner, 4 De G. & Sm. 429, it was held, 483). upon the language of the will, that an annuity was primarily pay : And see Ion v. Ashable out of specifically devised real estates. ton, 28 Beav. 379; Daunt v. Daunt, 13 Ir. Ch. Rep. 175; Allan v. Gott, 7 L. R. Ch. App. 439; Weldon v. Bradshaw, 7 I. R. Eq. 168; Sinnett v. Herbert, 12 L. R. Eq. 201. Moreover should the testator sell the estate out of which adeemed: New[ * 749 ] a sum *ia to be paid, the legacy will be bold v. Roadnight, 1 Russ. & My. 667. Where, however, the legacy appears to be a demonstrative legacy, there the fund pointed out for its payment, whether real or personal, is primarily liable, but upon its failure the demonstrative legacy Savile v. Blackett, 1 P. will be payable out of the general assets. Wins. 778; Attorney -General v. Parkin, Amb. 566; Cartwright v. < 'artwright, cited 2 Bro. C. C. 114; Roberts v. Pocock, 4 Ves. 150; M'Cleland v. Shaw, 2 S. & L. 538; Smith v. Fitzgerald, 3 V. & B. Walker v. Laxton, 1 Y. & J. 557; Mann v. Copland, 2 Madd. J: 232; Fowler v. Willoughby, 2 S. & S. 354; Willox v. Rhodes, 2 Russ. 452; Sidebothom v. Watson, 11 Hare, 170; Colville v.. Middleton, 3 Beav. 570; Fream v. Dowling, 20 Beav. 624; 4 L. R. Eq. 145 n.; Williams v. Hughes, 24 Beav. 474; Paget v. Huish, 1 H. & M. 663; and see note to Ashburner v. Macguire, vol. ii. post. But it appears that a devise of real estate, upon trust to raise a certain sum for payment of debts ( Clutterbuck v. Clutterbuck, 1 My.

204

DUKE OF ANC ASTER

V.

MATER.

750

estate 15), or to pay a particular debt to which the personal also liable, will render the real estate the primary fund for the payment of such sums: Haiico.v v. Abbey, 11 Yes. 179; Welby v.

&
is

K.

Bateman

Coll. 428; Russ. & My. 5<1; Evans v. Cockeram, Earl of linden, 1 J. & L. 356; 'oote v. Coote, 3 J. & L. Sed vide Noel v. Lord Henley, 7 Trice, 241; 8. C, Dan. 2) 1. 178. There Richards, C. B., observed, "That he conld not make any distinction between a direction thai real estate should be chargeable with a particular debt of 20,000J., and a devise of real estate subject to all the testator's debts; For the 20,000?. was only part of those See, however, the remarks on this case in Lord St. Leondebts." on the Law of Property, p. 363. work ard8' But it would seem from some cases that the charge of a debt on real estate not being already a charge thereon, will not affect the primary liability of the personal estate (Quennell v. Turner, 13 Beav. 240; Noel v. Lord Henley, 7 Pri. 241; Dan. 211; Bickham v. 'rutin'//, 3 M. & C. 763), unless where the testator has likewise imposed the payment of the debt as a personal obligation on the devisee: Welby v. Rockliffe, 1 Buss. & My. 571, and see Cliitterbuck v. Clutterbuck, 1 My. & K. 15. Where a debt is already a charge upon real estate by way of mortgage, a devise of such estate in trust for sale and payment of the mortgage debt, or a declaration that the mortgage debt is to be a charge on the real estate must mean that it is to be a primary charge on the real estate, for inasmuch as it was already a charge upon the real estate, the words would have no meaning: Hancox * v. Abbey, 11 Ves. 179; Evans v. Cockeram, 1 [*750] But, as we shall hereafter see, such charge after Coll. 428. the passing of Locke-King's Act (17 & 18 Yict. c. 113), is un-

Rockliffe,

v.

necessary.

otherwise would

a specific personal fund is subjected to charges (which fall upon the general personal estate), as debts, legacies, funeral and testamentary expenses, such specific fund will not be the auxiliary, but the primary source for their payment. See Browne v. Groombridge, 4 Madd. 495; Choat v. Ycates, 1 J. &

Where

W.

Evans

v. Eastwood, 1 L. & G. t. Sugd. 294; Evans, 17 Sim. 106; Webb v. De Beauvoisin, 31 Beav. 573; Gilbertson v. Gilbertson, 34 Beav. 354; Coventry v. Coventry, 2 Drew. & Sm. 470. Where, however, the residue is undisposed of it will bo primarily Thus in Heivett v. Snare (1 De G. & Sm. 333), where a liable. testator had bequeathed specific chattels to his widow, charged with payment of a pecuniary legacy and of all his just debts and funeral and testamentary expenses, and bequeathed other specific and pecuniary legacies, bid made no residuary bequest, it was argued that, if it could be construed as a charge, only in the event of the general residue being insufficient, the words would be inoperative: and Choat v. Yeates (1 J. & W. 102) and Browne v. Groombridge

102;

and see Phillips

v.

205

* 751

DUKE OF ANCASTER

V.

MAYER.

Sir J. L. Knight Bruce, V.-C, said, (4 Madcl. 495) were cited. In the that " ia both those cases there was a residuary bequest. case then before the Court, the words of the will would not h* inoperative if they were construed as charging the property bequeathed to his widow in preference to other specific legacies, but not in And his Honor was of preference to undisposed of residue." opinion that there was not a sufficient indication of an intention to See also Hertford v. Wood, 4 Ves. exonerate the residuary estate. 76; Newbegin v. Bell, 23Beav. 386; Corbet v. Corbet,8l. R. Eq. 407. Although the payment of debts is thrown by a testator upon a particular fund, and he devises or bequeaths other property discharged from such debts, if the particular fund should prove insufficient for payment of debts, the other property will be applicable See Lord Brooke v. Earl of for that purpose in the usual order. Warwick, 1 H. & T. .142; there a testator devised an estate (which he had mortgaged), and bequeathed specific personal property, and his residuary personal estate, to different persons, freed and discharged from his debts, &c, and* he devised real estate to trustees, upon trust to sell and pay his debts. The estate devised for payment of debts was insufficient for that purpose. It was held by Lord Cottenham. C, affirming the decision of Sir J. L. Knight Bruce, * V.-C. (reported 2 De G. & Sm. 425), that *751] [ the residue was primarily liable, and that the devisees of "The the mortgaged estates were entitled to exoneration thereout. only way," said his Lordship, " in which this case was attempted to be argued was this; that the gift of the residue was a specific This is founded on the supposition that the testator has disgift. posed of it as a particular fund. There may be many cases where residuary clauses must be considered, not as general dispositions of the residue, but as dispositions of the residue of a particular fund; and such gifts would be equally specific with gifts of other In an ordinary gift of the residue, part to A. parts of the fund. and part to B., and the residue to C, C. is as much a specific legaBut this is a general tee as either the former legatees A. or B. gift of the residuary estate. What, then, is a residuary estate ? That which remains after payment of the debts. The testator gives it discharged from his debts; but he cannot do that, unless he proTherefore, if he vides for the payment of them by other means.

has expressed an intention of doing what he

it

is

incapable of effecting,

must

fail.

Upon the same principle where a testator expressly exempts his personal estate from payment of his debts, estates specifically devised not charged with payment of his debts will be applicable after real estates devised upon trust for their payment, and before Morroio v. Bush, 1 Cox, resort can be had to the personal estate Young v. Young, 26 Beav. 522. 185 Where real property given expressly charged with payment of debts, funeral and testamentary expenses, proved to be insufficient,
;

206

DUKE OF

A .\X" ASTER V.

MAYER.

* 752

and the personal estate being given specifically, was exempt from its primary liability to such charges, it was held thai they musl be borne pari passu by such personal estate and other real estate
ciiically

devised

Powelly. Riley, 12 L.

It.

Eq. 175.

II.

When mortgaged estates are

debts.]

has been maby Locke King's Act (17 & 18 Vict. c. L13) amended by 30 & 31 Vict. c. 69, which, however, only affects the rights of those claiming under a person dying after the 31st of December, 1851, and amended also by 40 & 41 Vict. c. 34, coming into effect It as to any testator or intestate dying after the 31st Dec, 1877. is proposed, therefore, to consider, 1st, the law as applicable to and 2ndly, to notice the Acts cases not coming within those Acts and the alterations which are thereby effected.

ment of mortgage
terially altered

The law upon this subject

entitled to be exonerated from pay-

1. As to cases not coming within the operation of Locke It is-clear in accordance with [ * 752 King's and * other Acts.] the general rule, by which the personal estate is the primary fund for payment of debts, unless by express words or manifest intent it is exempted, that the personal estate is the primary fund for payment of a mortgage debt contracted by a deceased person himself; and, whether the estate descends or is devised, the heirat-law in the one case, and the devisee in the other, is entitled to have the land exonerated from the mortgage debt by the primary application of the general personal assets, so far as they will extend, unless, in the case of a devise, it appears from the will to have been the testator's intent that the land should be taken cum onere. See Davies v. Bush, 4 Bligh. N. S. 305, and note see also Pockley Bartholomew v. May, 1 Atk. 487; Belvedere v. Pockley, 1 Vera. 36 v. Rochfort, 5 Bro. P. L. 299. Although, as before observed, a devise or charge* for payment of debts generally, will not render the real estate primarily liable, it seems that a devise of land in mortgage, charged with, or in trust to sell for, payment of the mortgage debt, although it be the testator's own debt, will show his intention to exonerate the personalty, and render the mortgaged estate primarily liable: Evans v. Cockeram, 2 Coll. 428; Hancoxx. Abbey, 11 Ves. 170: but see Wythe v. Henniker, 2 My. & K. 035. So where there is a devise to a person of an estate "lie paying the mortgage thereon :" Lockhart v. Hardy, 9 Beav. 379. Sed vide Mead v. Hide, 2 Vera. 120; Bridgeman v. Dove, 3 Atk. 201; Hatch v. Sketton, 20 Beav. 453. But a devise subject to the mortgage or incumbrance thereon, is not considered indicative of an intention to render the real estate primarily liable, but merely descriptive of the state of the property; it will not, therefore, exonerate the personal estate Serle v. St. Eloy, 2 P. Wms. 386; Astley v. The Earl of Tankerille, 3 Bro. C. Bootlc v. C. 545; S. C, 1 Cox, 82; Milnes v. Slater, 8 Ves. 306

207

* 753

DURE OF ANCASTER

V.

MAYER.

See also Blundell, 1 Mer. 227; Noel v. Lord Henley, Dan. 336. Wythe v. Henniker, 2 My. & K. 635; Bickham v. Cruttwell, 3 My. & Or. 763; Townshend v. Mostyn, 26 Beav. 72, 76; Newhouse v Smith, 2 Sm. & Gift 344 Even where a devisor having two estates subject to one mortgage, devised one estate to A., subject to the payment of one part of the debt, and devised the other estate to B., subject to the payment of the residue of the debt, it was held that no implication thereby arose that the devisees were to take the estates respectively cum onere, but that the devisor had simply determined the proportions in which Goodwin the estates were between themselves to bear the charge.
v. [

Lee, 1 K.

& J.

377.

In the principal case, indeed, * Lord Thurlow says, that as the testator had positively given the leasehold estate subject to the debt thereon, if another estate had been appropriated to payment of his debts, and it had been his debt upon the estate, he should have concurred with the Lords Commissioners in thinkBut Lord Eldon has ing the debt a primary charge on the estate. observed, in Bootle v. Blundell, 1 Mer. 227, with reference to the remark of Lord Thurlow, that " if, in The Duke of Ancaster v. Mayer, the mortgage debt of 650UZ. upon the leasehold estate devised to the testator's brother, had been a debt of the testator's own, it
* 753
]

seems to be very certain from Serle v. St. Eloy, 2 P. Wms. 386, and other cases, that his giving the leasehold estate subject to the mortgage would not have constituted it the primary fund for payment* of that debt." See, also, Galton v. Hancock, 2 Atk. 437; Astley v. Tanker ville, 3 Bro. C. C. 545; 1 Cox, 82; Bickham v. Cruttwell, 3 My. & Cr. 763; Townshend v. Lord Mostyn, 26 Beav. 72. A vendor's lien is such a personal debt due from the purchaser, as would (prior to recent legislation, see post 765) entitle his heir or devisee to have the estate upon which it is a charge exonerated by the primary application of the purchaser's general personal So, if a person bought an estate, and thereby contracted a estate. debt with the vendor, and, for the purpose of securing it, gave a charge on the estate, and entered into a covenant to pay it, it would be the personal debt of the purchaser, and his personal estate would be primarily liable to pay it. And it would make no difference whether the purchase-money was to be paid in a gross sum or from time to time, by way of annuity for life; it was equally a debt and charge upon the personal estate, and in either case the personal estate was the primary fund to pay it: Yonge v. Furse, 20 Beav.
'

380, 383. Upon the

titled to

same principle the legatee

of a specific chattel

is

en-

have it exonerated from a charge created thereon by the [If a testator gives a testator: Knight v. Davis, 3 My. & K. 358. number of legacies, and blends both his real and personal estate into one fund for the payment of his debts and the legacies, and devises the residue, the legacies are charged upon the real estate

208

DUKE OF ANCASTER
if

V.

MAYER.

* 754

the personal estate is insufficient to pay both the debts and the legacies: Carters. Balfour, 1 (J Ala. 815; Gallagher's Appeal, 48 Pa.
:

St. 121 Buckley v. Buckley, 11 Barb. 43; 2 Green, Ch. 172.]

Van Winkle

v.

Van Houten,

charges not within the rule being primarily payable out of Where there has been no benefit from a charge to the personalty of a party creating it, the case will not fall within tbe Thus, where the money due upon mortgage is a mere general rule. charge, in order to secure a portion or jointure, although accompanied by a covenant to pay on the part of the owner of the estate, it will be held to be a debt to which the estate charged, and not the personal estate, will be primarily liable {Coventry v. Coventry, 2 P. Wms. 222, 1 Stra. 590; Edwards v. Freeman, 2 P. Wms. 437; Lanoy v. The Duke of Athol, * 2 Atk. 444; Lechmere [ *754 ] v. Charlton, 15 Ves. 193; Graves v. Hicks, 6 Sim. 398; Loosemore v. Knapman, Kay, 123; see the remarks of Jx>rd Truro, C., in Hickling v. Boyer, 3 Mac. & G. 642, 943; and see and consider Reeve v. Reeve, 3 De G. & Sm. 714; Evans v. Wyatt, 31 Beav. 217); but when a provision under a marriage settlement is first secured by a covenant creating a debt, to which the covenant for securing the charge upon the estate is clearly auxiliary, the personal estate will be primarily liable: Field v. Moore, 7 De G. Mac. & G.
the land.]

What

691.

But even where the personal

estate has received a benefit, the

where a tenant for life, even although he has an absolute power of appointment over the whole estate, raises a sum of money under the power for his own use, and covenants to pay it: for the inference in such a case is, that he intended the real estate, which was not absolutely his own. should pay the debt in preference to his own property: Jenkinson v. Harcourt, Kay, 688, 700; and see Dolphin v. Aylward, 15 Ir. Ch. Rep. 583; Ex parte Digby, Jac. 235; Redington v. Redington, 1 Ball & B. 131. But the doctrine of exoneration was not held applicable in the case of a loan on South Sea Stocks, " because it had always been taken, that the company gave credit to the stock only that was pledged, and took no notice of, nor made the least inquiry after, the ability or circumstances of the borrower, but depended entirely upon the stock:" King v. King, 3 P. Wins. 361, per Talbot, L. C. Where, moreover, the mortgage debt is not the personal debt of the devisor or ancestor, but of a previous owner of the mortgaged estate, the mortgaged estate is the primary, and the personal estate merely the auxiliary and collateral fund for its payment; and conreal estate will be primarily liable

sequently the heir-at-law or devisee will take such estate cum onere, unless the mortgage debt has been adopted by the devisor or ancestor as his own, in which case the rule, that the personal estate is tho primary fund for its payment applies: Scott v. Beecher, 5 Madd. 96; Earl of Ilchester v. Earl of Carnarvon, 1 Beav. 209; and see Earl * 14 WHITE OX EQUITY. 209

* 755

DUKE OF ANCASTER

V.

MAYER.

of Clarendon v. Barham, 1 Y. & C. C. C. 688; Swainson v. Swainson, 6 De G. Mac. & G. 648. Where, moreover, a person has mortgaged his estate to secure the debt of another, as he stands merely in the position of a surety, he will be entitled to have the estate exonerated by the principal debtor: Lee v. Rook, Mos. 318; Evelyn v. Evelyn, 2 P. Wms. 659; Peirs v.
Peirs, 1 Ves. 521.

With regard to a wife's right to the exoneration of her estate by her husband when she has joined him in mortgaging it to * 755 ] secure an advance to him for his * benefit, see Huntington v. Huntington, and note, vol. ii., post.

What acts do not amount to an adoption of a mortgage debt by the owner of the estate.] There is considerable difficulty in ascertaining what acts amount to an adoption of the debt. The following acts have been held not to be sufficient: If the heir or devisee, upon a transfer of the mortgage, enters into a personal covenant with, or executes a bond to, the new mortgagee for the payment of the mortgage debt, if he does it only for that purpose, it has been

frequently determined not to make it the personal debt of the party whose original debt it was not (Bagot v. Oughton, 1 F. Wms. 347; Evelyn v. Evelyn, 2 P. Wms. 664; see Cox's note Leman v. Neivnham, 1 Ves. 51; Lacam v. Mertins, 1 Ves. 312; Robinson v. Gee, 1 Ves. 251; The Earl of Ilchester v. The Earl of Carnarvon, 1 Beav. 209; Hedges v. Hedges, 5 De G. & Sm. 330; and see and consider Barham v. Earl of Thanet, 3 My. & K. 607; Bruce v. Morice, 2 De G. & Sm. 389; Billinghurst v. Walker, 2 Bro. C. C. 604; Shafto v. Shafto, 1 Cox, 207; Waring v. Ward, 7 Ves. 332); nor if, as in the principal case, he obtains a small further advance, and gives an nor where the conadditional real security for the whole sum due; veyance or transfer is freed from the old and made subject to anew proviso for redemption, nor where the heir or devisee enters into a covenant to pay a higher rate of interest (Shafto v. Shafto, 2 P. Wms. 664, n.; 1 Cox, 207; sed vide Woods v. Huntingford, 3 Ves. nor where an additional 128; Lushingtony. Sewell, 1 Sim. 435);

advance is obtained to pay off arrears of interest on a mortgage and the simple contract debts of the person from whom he takes the estate: Earl of Tankerville v. Fawcett, 1 Cox, 237. A mortgage, moreover, by the heir or devisee of lands, devised or
descended, subject to payment of the debts or legacies of the ancestor or devisor, in order to secure their debts or legacies, will not be considered as the debt of the heir or devisee: Perkyns v. Baynton, 2 v. P. Wms. 665, Cox's note; Basset v. Percival, 1 Cos, 268; Xoel Lord Henly, 7 Price, 241; S. C, Dan. 211; Hamilton v. Worley, 2 Ves. Jun. 62; Earl of Tankerville v. Fawcett, 1 Cox, 237; 2 Bro. C. C. 57; sed vide Bagot v. Bagot, 34 Beav. 134; 10 Jur. N. S. 1169. Nor will a charge by an heir or devisee of his estate with payment of his debts be considered as an adoption of the mortgage

210

DUKE OF ANCASTER

V.

MAYER.

756

debt of his ancestor or the devisor from whom he took the estate: Laivson v. Lawson, 3 Bro. P. C. Toml. Ed. 424; Hamilton v. H7 orley, 2 Ves. jun. 62, 4 Bro. C. 0. 199; Laivson v. Hudson, 1 Bro. C.

buys subject to a mortgage, and has [ * 750 ] no connection, or contract, or communication with the mortgagee, and does no other act to show an intention to transfer the debt from the estate to himself, as between his heir and his executor, but merely that which he must do if he pays a less price for it in consequence of that mortgage that is, indemnifies the vendor against it he does not, by that act, take the debt upon himself personally (Woods v. Huntingford, 3 Ves. 132; per Sir R. P. Arden, M. B. Lushington v. Sewell, 1 Sim. 435); and although ho agrees or covenants with tho vendor to pay the mortgage debt, he does not thereby make it his own debt, but it remains a charge upon the estate, or rather a debt of his in respect of the estate only: Tiveddell v. Tweddell, 2 Bro. C. C. 101, 152; Butler v. Butler, 5 Ves. 534; Waring v. Ward, 7 Ves. 332: Barry v. Harding, 1 J. & L. 475; Barham v. The Earl of Thanet, 3 My. &K. 607; Bed vide Parsons v. Freeman, 2 P. Wms. 664, Cox's note. [The heir to whom mortgaged property has descended has a right to call upon the executor to apply the personal assets to the discharge of the mortgage Leavitt v. Wooster, 14 N. H. 551; Hewes v. Dehon, 3 Gray, 206 Danbridge v. Minge, 4 Band. 397; Clingfetter v. Ayers, 16 111 329 Kelsey v. Western, 2 Comstock, 500; Holman's Appeal, 12 Harris (Pa. ), 174. But if the testator purchases land subject to a mortgage his personal estate is not bound to discharge that mortgage unless an intention to that effect can be gathered from his will: Cumberland v. Codrington, 2 Johns. Ch. 229; Andrews v. Bishop, 5 Allen, 490; Hewes v. Delon, 3 Gray, 206.] And the result is the same where two persons who buy an estate, subject to a mortgage by the former owners, take upon themselves different mortgages, and covenant with each other for payment of them, for the covenants are not supposed to be entered into to render the mortgage debts the personal debts of the purchasers, but diverso intuito the debt being apportioned on each part each purchaser is supposed to covenant to pay his proportion, or to indemnify the purchaser of the other part of the estate: Forrester v. Lord Leigh, Amb. 173. And a new proviso for redevi / >t m where the equity for redemption has been divided among several persons, providing for reconveyance to each person of his own share, will not throw the debt upon such persons personally, inasmuch as it only expresses what the law would do by implication: Hedges v. Hedges, 5 Do G. & S. 330.

C. 58. * Where a purchaser

/'<

What acts amount to an adoption of a mortgage debt by thcoivner of the estate The following acts have been held to amount to an adoption of the debt: Where the owner of property adds mort\

211

* 757

DUKE OF ANCASTER

V.

MAYER.

gages of his own to other mortgages created by his ancestor, and

them together, and makes himself personally liable for the payment of the aggregate sum, the whole mortgage debt then becomes his debt: Woods v. Huntingford, 3 Ves. 128; Lushington v. Sewell, 1 Sim. 435; Toimshend v. Mostyn, 26 Beav. 72, 70: and see Bagot v. Bagot, 34 Beav. 134; 10 Jur. (N. S.) 1169; 13 W. K. (M.
unites

B.) 169.
[

* 757

Where the purchaser of the equity of redemption enters into a covenant with the mortgagee to * pay him the mortgage debt, and there is a new proviso for redemption

on payment, he will be consdered to have adopted the debt as his own: Earl of Oxford v. Lady Rodney, 14 Ves. 417; Woods v. Huntingford, 3 Ves. 128; Barry v. Harding, 1 J. & L. 485, 486. But although the mere purchase of an estate subject to charges as an equity of redemption, does not make the personal estate of the purchaser liable to the charge, if the charge is part of the price, then
the personal estate is liable: per Lord Thurloiv, C, in Billinghurst v. Walker, 2 Bro. C. C. 608, recognizing the doctrine laid down in Cope v. Cope, Salk. 449; and Belvidere v. Lord Rochfort, Wallis Bep. by Lyne, 45; 5 Bro. P. C. 299, Toml. Ed. Sed vide Tweddell v. Tweddell, 2 Bro. C. C. 107, where Lord Thurlow disapproves of that case. See also Woods v. Lord Huntingford, 3 Ves. 131. And see and consider Waring v. Ward, 7 Yes. 337; Barry v. Harding, 1 J. & L. 475. Where a person has raised money by mortgage of an estate which he afterwards aliens or settles upon volunteers, and more especially if he does so expressly subject to the mortgage, the natural inference from such a transaction, unless there be something in the instrument to indicate a contrary intention, is that the alienor or settlor did not mean to pay the debt out of his own personal estate. If the alienation is made subject, to the mortgage debt, whether the alienee be a volunteer or purchaser, the inference is, that though as between the real and personal representatives of the mortgagor, his real estate was intended to be only a collateral security, yet from the moment of alienation he hasmade that estate the principal debtor (Vandeleur v. Vandeleur, 3 C. & F. 82; 9 Bligh. N. S. 157; Lends v. Nangle, 1 Cox, 240; Ibbetson v. Ibbetson, 12 Sim. 206; Lady Lang dale v. Briggs, 8 DeG. Mac. & G. 391; Jenkinsonx. Harcourt, Kay. 688; Alen v. Hogan, LI. & G. t. Sudg. 231); and if he were to pay off the whole or any part of the charge upon the real estate, he would, unless he showed that he intended to make the payment in ease of the real estate, be a creditor for the amount he so paid off (Ex parte Digby, Jac. 235; Redington v. Redington, 1 B. & B. 131; Vandeleur v. Vandeleur, 3 C. & F. 82; 9 Bligh. N. S. 157); but where the settlement contains a covenant on the part of the settlor to pay the debt, that might show his intention to render his personal See Noel v. Noel, 12 Price, 263, 264; Barestate primarily liable. ham v. Earl of Clarendon, 10 Hare, 126.

212

DUKE OF ANCASTER

V.

MAYER.

* 759

Where the heir of the mortgagor and the mortgagee joined in conveying a part of the property to a fresh mortgagee, who *advanced a sum to pay off a part of the first mortgage, with [ * 758 ] an entirely new equity of redemption, and an alteration of
the rate of interest, it was hold. that this amounted to an original mortgage, and was not an assignment, and that the personal assets of the heir were therefore to be first applied inpayment of the debt: Barham v. Earl of Thanet, 3 My. & K. 607. Where, moreover, the devisee of an estate charged with portions made a settlement thereof and covenanted not only to pay the portions, but also to convey the estate discharged of them, it was held that he had thereby adopted the amount of the portions as a debt,

and that his covenant was not merely one of indemnity: Barham v. The Earl of Clarendon, 10 Hare, 126. A devisee may also bo presumed from his acts to have made a mortgage debt his own in pursuance of the directions of the will. See Bruce v. Mar ice, 2 De G. &S. 389; there the testator devised a morto-ao-ed estate to his eldest son in tail, and devised other lands to trustees upon trust to sell and pay his mortgage and other debts and pay the surplus to his son, but if the son should satisfy the creditors The trustees never acted, and the the sale was not to take place. son entered on both estates, never paid the mortgage debt, but joined in a transfer with a new proviso for redemption, and a coveoant for payment of interest at a different rate. It was held by KnightBruce, V.-C, that the son's personal estate was primarily liable, on the ground that he must be presumed to have acted as he did in pursuance of the will, which gave him the option of preventing a sale See also Reynolds v. LP Gloughlin, by taking the debts on himself. Ir. 405. 9 L.

Election by devisee or heir of mortgaged estate, being also residuary legatee and executor of the mortgagor, that mortgage should be a charge on thereal estate.] AVhere a mortgaged estate comes into the hands of a person who is executor and residuary legatee of the mortgagor, as well as heir or devisee of the mortgaged estate, upon the death of such person the mortgage debt is a primary charge on

The leading case upon this subject is Scott v. the real estate. Beecher, 5 Madd. 96; there the owner of copyholds, which he had mortgaged, devised them to his wife in fee, and gave to her his perThe sonal estate, and made her his residuary legatee and executrix. It was hold by wife died intestate without paying off the mortgage. Sir John Leach, V.-C, that her heir was not entitled to have the mortgage paid out of the personal estate. " The widow," said his Honor, " was devisee of the copyhold estate, and was also If she [ * 759 ] residuary * legatee and executrix of the mortgagor. out mortgage off the paid have might fit, she had thought of the personal estate of her husband, for it is admitted she pos sessed assets sufficient to pay all the debts, including the mortgage,
213

*760

DUKE OF ANC ASTER

V.

MAYER.

and it may therefore be said that she elected to continue the mortgage But I apprehend this is not a case as a charge on her real estate. representative is bound to make out any such personal her in which

By the gift to her as residuary legatee, the perfact of election. testator became her personal estate, but the mortthe of estate sonal gage debt of the testator was not her debt, and her heir therefore has no equity to pay off this mortgage out of her personal estate."
So likewise in the case of Sicainson v. Swainson (6 De G. Mac. & G. 648), a testator who had mortgaged his estates, gave all his She real and personal estate to his wife, and made her executrix. died without having paid off the mortgagees. It was held by Lord
Cranworth, C, affirming the decision of Sir J. Stuart, V.-C, that her " Some propositions," heir took the mortgaged estates cum onere. If said his Lordship, "connected with the case admit of no doubt. the owner of an estate mortgaged it and died, and the representative of his real estate was a different person from the representative of his personal estate, in this case the real estate would be exonerated froru the debt at the expense of the personalty. Again, where the real and personal representative of the mortgagor was

What, however, was to the same person, no question could arise. happen if, the estate having come to some person, that person died,
and his representatives were different, his real estate going to one person, and his personal to another ? It was here that the question Without saying whether there might be a preference in arose. favour of the rule being one way rather than another, the only I point of importance was that some rnle should be established. have always understood the rule to be that when an estate in mortgage had once come to the hands of a person filling the character both of real and personal representative of the mortgagor, then the charge became a debt of that person, and was only an incumbrance on the estate. That was the rule laid down in Scott v. Beecher (5 Madd. 96), and it was acted on by Lord Lyndhurst in Evans v. Smithson (1 Y. & C. C. C. 701, cited). The particulars of that case were not known, but the rule was also followed by Lord Langdale in The Earl of Ilchester v. The Earl of Carnarvon (1 Beav. 209); and again, although with reluctance, by the present Lord Justice Knight-Bruce in the Earl of Clarendon v. Barham (1 Y. [*760] & C. C. C. 688); it was again * recognized and followed by Lord Truro in Hickling v. Boyer (3 Mac. & G. 635, 644)." And the covenant by the heir in such cases, to indemnify against the mortgage debt another estate which by law he was bound to indemnify will not be construed to amount to an adoption Earl of Ilchester v. The Earl of Carnarvon, 1 Beav. of the debt:
209.
It was, however, subsequently decided that where the same person becomes entitled to the mortgaged estate, and also to the persona, estate of the mortgagor upon his intestacy, on the death of such person intestate, without having taken out letters of adminis-

214

DUKE OF ANCASTER
tration, his heir will

V.

MAYER.

* 761

bo entitled to have the mortgaged estate exoEngland, 2 K. & J. 44; there James England mortgaged real estate, and died intestate in 1850, leaving his Eld father, Edward England, heir-at-law, and sole next of kin. ward England died intestate, and without having obtained letters It was held by of administration of the personal estate of his son. Sir W. Page Wood, V.-C, that the personal estate of the son was liable, as between the heir and personal representative of the father and son, to be applied in discharge of the mortgage debt in exonerali It appears to me," said his Honor, "that tion of the real estate. decided that when the same person who have which the authorities is heir or devisee of the mortgaged estate is also executor and residuary legatee, and has both the funds and the legal right to pay himself, his heir is not entitled to have the mortgaged estate exonerated, do not go far enough to enable me to hold that the administrator of Edward, who was entitled only to so much of the entire personalty of James as fell to him by the effect of intestacy after all the debts of James were paid, can claim James's personalty until the mortgage debt is discharged, or to hold even if the mortgagee had chosen to sell the security, so that the debt had been in a manner discharged, that the defendant, claiming as heir of James as well as of Edward, has not a right to say, 'The personalty of James never came to Edward, h remains unadministered, and I am entitled to have it applied in relieving the mortgaged estate from The views on James's debt.' The case is new in this particular. the general doctrine have been very various; but the latter decisions have proceeded upon the ground that the same party had both funds under his control. I cannot say that this was the case here, and I must therefore decide in favour of the defendant, who applies to have the mortgaged estate exonerated." a testatrix, the owner of a In Hatch v. Skelton (20 Beav. 453 freehold estate, subject to a mortgage in fee to secure 1300/., * devised and bequeathed her real and personal [ * 761 ] estate to Angell, the mortgagee, who, in his residuary account as her executor, represented the balance of the estate as being 467/., and added. "The executor will appropriate this balance towards payment of the mortgage of 1300/. due to himself." Afterwards Angell devised the estate to a niece and two sisters of the testatrix, "provided they undertake to receive the same with all the It was held by Sir John Romilly, liabilities attaching thereunto." M. R., first, that under the circumstances the mortgage had not
nerated.

See Bond

v.

>,

merged in the fee; and, secondly, that the niece and two sisters of the testatrix took the estate subject to the payment of the balance See also Byam v. Sutton, 19 Beav. 556. of the mortgage debt. As to the effect of lapse of time upon the claim to exoneration, see Neichous v. Smith, 2 Sm. & Gift'. 344: Rooke v. Lord Kensington, 21 Beav. 470; Mellersh v. Bridger, 17 Jur. 908.

215.

* 762

DUKE OF ANCASTER

V.

MAYER.

2. The law of the exoneration of mortgaged estates as altered by Locke King's and other Acts.] The law relating to the exoneration of mortgaged estates having been found unsatisfactory, it was enacted by Locke King's Act (17 & 18 Vict, c. 113 which does not extend to Scotland), that "when any person shall, after the 31st of December, 1854, die seised of or entitled to any estate, or interest in any land or other hereditaments which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, and such person shall not, by his will, deed, or other document, have signified any contrary or other intention, the heir or devisee to whom such land or hereditaments shall descend or be devised, shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate, or any other real estate of such person, but the land or hereditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged, every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof: Provided always that nothing herein contained shall affect or diminish any right of the mortgagee on such lands or hereditaments to obtain full payment or satisfaction of his mortgage debt either out of the personal estate of the person so dying as aforesaid, or otherwise: provided also, that nothing herein contained shall affect the rights of any person claiming under or by virtue of any will, deed or document already made * 762 ] or to be made before the first day of January one * thou[

sand eight hundred and fifty five." (Sect. 1.) be observed that this Act only comprehends " any estate in any land or other hereditaments ; " the law, therefore, interest or under that Act, remained unaltered as to the primary liability of the general personal estate, to satisfy charges on property not comIt will

ing within those terms. With regard to property the mortgage of which comes within the Act, it seems that copyholds as well as freeholds are within its provisions {Piper v. Piper, 1 J. & H. 91); but leaseholds for years axe, by the language of the Act, which speaks of " the heir or devisee to " whom such lands or hereditaments shall descend or be devised its (words not applicable to leaseholds for years), excluded from operation: Solomon v. Solomon, 12 W. E. 540, 10 Jur. N. S. 331; 33 L. J. (Ch.) 473; Gall v. Fenwick, 43 L. J. Ch. 178; In reWormsBut, by 40 & 41 Vict. c. 34, the Act is ley's Estate, 4 Ch. D. 665. extended to lands and hereditaments of all tenures. See p. 765,
post.

As a mere chattel is not an interest in land within the meaning of Locke King's Act, if there be a bequest of a chattel subject to a charge, the general personal estate must redeem the pledge or pay Per Matins, V.-C, in Lewis v. Lewis, 13 L. off the charge upon it.
E. Eq. 225.
*

216

DIKE OF ANC ASTER

V.

MAYER.

* 7G3

It has been held, moreover, that land devised upon trusts for conversion, and taken in its converted state, is not an interest in lands within the meaning of Locke King's Act: and that a person to whom the proceeds of land have been bequeathed by a testator who had mortgaged it, can demand the payment of the mortgage out of the general personal estate: Lewis v. Lewis, 13 L. R. Eq. 218.

With regard to the question, as to what is a sum charged by way of mortgage within tho meaning of the Act (17 & 18 Vict. c.
113), it has been decided that the Act only applies where there is a defined and specified charge on a specified estate (Hepworth v. Hill, 30 Beav. 470); that it applies to an equitable mortgage of J. & H. freeholds, by deposit of deeds with (Pembroke v. Friend, 132; Coleby v. Coleby, 2 L. R. Eq. 803), or without a memorandum, and though in terms " as a collateral security " for money lent on a promissory note: lb. and see Davis v. Davis, W. N. 1876, p. 242.
1

to be

vendor's lien for unpaid purchase-money, however, was held not within the Act: Hood v. Hood, 20 L. J. (N. S. ) Ch. 010; Barnwell v. Iremonger, 1 Drew. & Sm. 255, 200. But by the Real Estate Charges Amendment Act (30 & 31 Vict. c. 01)). it was enacted that in the construction of the former Act (17 & 18 Vict. c. 113), and of this Act (30 & 31 Vict. c. 09), the word "mortgage" shall * be deemed to extend to any lien for [ * 703 ]

unpaid purchase money, upon any lands or hereditaments purchased by a testator. But, by 40 & 41 Vict. c. 34, the Act is extended to a lien upon See p. any lands or hereditaments purchased by an intestate.
705,
2iost.

morgaged estate must bear the mortgage against the Crown, taking the personalty on failure of next of kin, for it having been enacted in general terms by 17 & 18 Vict. c. 113, that the "mortgage debt shall not be discharged or satisfied out of the personal estate or any other real estate," the generality of those expressions is not limited by the words " as between the different persons claiming through, or under the deceased person," and they have been held to apply in favour of the Crown, claiming personalty for want of next kin: Dacre v. Patrickson, 1 Drew. & Sm. 180; Kilford v. Blaney, 31 Ch. D. 50, reversing S. C. 29 Ch. D. 145, and not following Brownd v. Groombridge, 4 Madd. 57. With regard to the operation of the last proviso in the same Act, it has been decided that an heir taking by descent after the passing of the Act will not come within such proviso, and consequently he will not be entitled to exoneration, although the mortgage deed by which the equity of redemption was reserved to his ancestor and his heirs was executed (Piper v. Piper, 1 J. & H. 91); or the will bv which the personalty is bequeathed was made (Power v. Pom r, 8 Ir. Ch. Rep. 340) before the 1st of January, 1855. An heir at-law, or customary heir of a testator, taking by descent an estate which has been the subject of a lapsed devise, in a will
217

* 764

DUKE OF ANC ASTER

V.

MAYER.

made

before the 1st day of January, 1855, will not come within the proviso exempting from the operation of the Act (17 & 18 Yict. c. 113) persons " claiming under or by virtue of any will made before See Nelson \. Page, 7 L. R. Eq. 25. the 1st day of January, 1855." AY here a devisee takes the mortgage estate under a will made before the 1st of January, 1855, he will come within the meaning of the proviso, and be entitled to exoneration, although the devisor may have executed another will after that date which, without affecting the devise, operated as a republication of the will; Rolfe v. Perry, 3 De G. J. & S. 481; 11 W. R. (L. C.) 674; 9 Jur. N. S. 853.

With reference to the question, what will be considered "a contrary or other intention" within the meaning of the Act, judges, as might be expected, have differed. See observations of Lord Westbury, C, in Rolfe v. Perry, 3 De G. J. & S. 481; 11 W. R. (L. C.) 674, 675; 9 Jur. N. S. 853; and see Woolstencroft v. Woolstencroft (2D.G.F.& J. 347); Enov. Tathavi, 11 W. R. (L. J.) 475; S. C, 4 Giff. 181 Mellish v. Vallins, 2 J. & H. 194.
;

*It has however been decided that a mere direction by the testator that the debts "shall be paid as soon as may be" {Pembroke v. Friend, 1 J. & H. 132), even although the real estate in mortgage be devised in strict settlement (Coote v. Lowndes, 10 L. R. Eq. 376); or that debts should be paid " out of his estate" (Broivnson v. Lawrance, 6 L. R. Eq. 1); or by his "executors out of his estate" Woolstencroft v. Woolstencroft, 2 De G. F. & Jo. 347, reversing the decision of ISir J. Stuart, V.-C, 2 Giff. 192), the source from which the payment is to be made not being mentioned, will not show a contrary or other intention sufficient to exonerate the mortgaged estate from its primary liability under the Act.
[

* 764

estate (Allen Allen, 30 Beav.' 395, 402; Greated v. Created, 26 Beav. 621; Stone v. Parker, 1 Dr. & Sm. 212; and see Neicman v. Wilson, 31 Beav. 33; Raivson v. M'Causland, 7 Ir. R. Eq. 277; 8 Ir. Rep. Eq. 617) or of the personal estate, was bequeathed upon trust to pay (Moore v. Moore, 1 De G. Jo. & Sm. 602, reversing the decision of Sir J. Romilly, M. R., 10 W. R. 877), or subject to the payment of (Eno v. Tatham, 11 W. R. (L. J.) 475; S. C, 4 Giff. 181; Mellish v. Vallins, 2 J. & H. 194) debts, without express reference to mortgage debts, these words have been held sufficient to show a contrary intention within the meaning of the Act so as to charge the personalty primarily with the payment of the mortgage debts on estates
v.

Where, however, the residue of the real and personal

See, also, Smith v. Smith, 3 Giff. 263; Smith devised by the will. v. Smith, 10 Ir. Ch. Rep. 89, and on appeal lb. 461. In the case, moreover, of Maxwell v. Maxwell, 4 L. R. Ho. Lo. 506, affirming S. C, nom. Maxwell v. Hyslop, 4 L. R. Eq. 407, it was held that a Scotch heritable bond, given by a domiciled Englishman, was payable in exoneration of the estate upon which the bond was charged out of his residuary personal estate, bequeathed

218

DUKE OF ANCASTER
for

V.

MATER.
v.

* 7G

payment

of bis " just debts."

Sed vide contra, Rowson

Harri-

son, 31 Beav. 207.

The construction put upon 17 & 18 Vict, c. 113, by tbe Courts being considered unsatisfactory, tbe legislature passed tbe 30 & 31 Vict. c. GO, wbicb enacts, tbat "in tbe construction of tbe will of any person wbo may die after tbe 31st day of December, 1867, a general direction tbat tbe debts, or tbat all the debts of tbe testator, sball be paid out of his personal estate, sball not be deemed to be a declaration of an intention contrary to or other tban tbe rale established by the said Act (17 & 18 Vict. c. 113), unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some * of * the testator's debts or debt charged by way of mortgage [ 7G5 ] on any part of his real estate. (Sect. 1.) That in tbe construction of the said Act,

and

of this Act, the

word 'mortgage'

shall

be deemed to extend to any lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator." (Sect. 2.)

As sec. 2 of this Act applied only to lands or hereditaments purchased by a "testator," the heir-at-law of an intestate has been held to be entitled to have the lien for unpaid purchase-money, upon an estate purchased by the intestate, paid for out of bis personal See ante, pp. 3G1, estate: Harding v. Harding, 13 L. R. Eq. 493.
762. This, together with other defects in the law, has been remedied by 40 & 41 Vict. c. 34, which enacts that "the Acts mentioned in the schedule hereto (17 & 18 Vict. c. 113, and 30 & 31 Vict. c. G9) shall, as to any testator or intestate dying after the 31st of December, 1877, be held to extend to any testator or intestate dying seized or possessed of or entitled to any land or other hereditaments of

whatever tenure which shall at the time of his death be charged with the payment of any sum or sums of money by way of mortgage, or any other equitable charge, including any lien for unpaid purchase-money, and the devisee or legatee or heir shall not be entitled to have such sum or sums discbarged or satisfied out of any other estate of the testator or intestate, unless (in case of a testator) he shall, within the meaning of the said Acts, have signified a contrary intention; and such contrary intention shall not be deemed to be signified by a charge of, or direction for payment of debts upon or out of residuary real and personal estate or residuary real
estate." (Sect. 1.)

With reference to this Act, which for the first time applies the rule as to vendor's lien to the administration of the estate of an intestate, it has recently been observed by Kay, J., "tbat it seems to limit tbe exception of the expression of a contrary intention to the case of a testator, tbe draftsman apparently forgetting that it might But if this be be by deed or other document as well as by will. the true interpretation, the expression of an intestate of a contrary
219

* 766

DUKE OF ANCASTER

V.

MAYER.

intention by a deed or other document, would be effective in the case of a mortgage under the first Act, but not in the case of a venSuppose that a testator or intestate had purchased real dor's lien. estate under such circumstances that the vendor had no lien, as, for example, if the lien were excluded by express agreement in the contract of purchase, the case would not come within the Acts, and the devisee or heir would not be prevented by them from claiming to have the payment made out of the personal estate. The [ * 766 ] Acts do not interfere with the ^consequences of contract, unless there happens to be a lien on the estate:" In re Cockroft, Broadbent v. Groves, 24 Ch. D. 94, 100. With regard to 30 & 31 Vict. c. 69, it has been observed by a learned judge that as it was a construing and explaining Act, it did not profess to amend the former Act, but to set aside the interpreit was, in fact, a polite way of tation that had been put upon it overruling the decisions of the Court of Chancery; per Jessel, M. R., In re Newmarch, 9 Ch. D. 17. If a testator now wishes to give a direction which shall be deemed under 30 & 31 Vict. c. 69, a declaration of an intention contrary to the rule laid down in Mi*. Locke King's Act, it must be a direction applying to his mortgage debts in such terms as unmistakably refer Hence a mere direction to executors to pay to or describe them. all just debts (Nelson \. Page, 7 L. R. Eq. 25), or even to pay all my just debts out of my personal estate in exoneration of my real estate (In re Rossiter, 13 Ch. D. 355) will not exonerate a mortgage See also Leonino v. Leonino, 10 Ch. debt on part of the real estate.

D. 460.

So where a testator, after specifically devising certain real estates during widowhood, gave the residue of his real and personal estate to trustees upon trust to convert and pay thereout his debts, including the debts due on mortgage of the property, given to his wife, it was held by the Court of Appeal, affirming the decision of Fry, J.,, that the will did not indicate any such contrary intention as to exclude the mortgages on the residuary real estate from the operation of Locke King's Act, and that they must be paid out "The reasonable view of of the proceeds of the mortgaged estate. the testator's intention," said James, L. J., "is that he considered the mortgages on the estates which were to be immediately sold would be paid out of the proceeds of the sale of those estates, and that the net proceeds only would go into the mixed fund out of which the estates that were not to be sold at once would be exonerThe will does not show any intention to exclude the operation ated. of" the Act as to the mortgage debts ivith reference to which nothing
to his wife
is said:''''

Elliot v. Dearsley, 16 Ch. D. 322. charge, moreover, of debts on part of a testator's real estates in exoneration of the rest, without specially referring to his mortgage debts, and although the charge is in aid of the personal estate, is not a sufficient expression of an intention contrary to the

220

DUKE OF ANCASTEIi
nilo established in
estate.

V.

MAYER.

* 7G8

Locke King's Act to exonerate the mortgaged n wmarch, Newmarch v. Starr, 9 Ch. D. See In re nearly the whole of whose * real [* 7G< ] testator, There a 12. estate was subject to a mortgage debt, devised a part of his real estate to his sons, "charged nevertheless in aid of his personal estate and in exoneration of his other real estate, with the payment of all his just debts." And he devised another part of his It was held by the Court of Appeal, real estate to his daughter. reversing the decision of Hall, V.-C, that there was no sufficient declaration of a contrary intention, and that both the devisees must Baggalfay, contribute rateably to p'ayment of the mortgage debt. L. J., however, during the course of the argument, suggested a doubt whether the words of the will did not mean that as to those debts which were properly payable out of personalty there should be a charge on the devised estate in aid of the personalty, and that as to those which were payable out of the realty there should be a charge on the devised estate in exoneration of the other parts of See also Inre Rossiter, 13 Ch. D. 355. the mortgaged estate. And where the personal estate is bequeathed subject to debts, a

specific devise of part of the mortgaged estate, while the rest is comprehended in a residuary devise, will not be a sufficient indication of intention that the part of the estate specifically devised shall See not be primarily liable to the payment of the mortgage debt.

A testator who was entitled Sackville v. Smyth, 17 L. R. Eq. 153. to an estate subject to a mortgage, devised part thereof, viz., the mansion house, for the benefit of his widow for her life, and the remainder to others, and ho bequeathed his residuary personal estate
payment of his debts and funeral and testamentary expenses to A., and directed that in case his residuary personal estate should be insufficient to pay the same, the trustees were to borrow any sum of money which might be required to make up such deficiency on the security of his real estate, except his mansion, by way of mortgage. It was held by Sir G. Jessel, M. R., that no contrary or other intention was shown within the meaning of Locke King's Acts so as to exonerate the widow's life interest from keeping down a proportionate part of the interest on the mortgage.
subject to the

In what order assets in cases not coming within Locke King's Act are applicable in the exoneration of mortgaged estates on behalf of Where a devisee is entitled to have the estate the devisee or heir.] exonerated from the mortgage debt, i. e. in cases where the testator has not thrown the primary liability on the mortgaged estate, and also in cases not coming within Locke King's Act, and the amending Acts, the assets of the testator will be applicable in the follow-

ing order:
1st,

The general personal

estate: for

* Philips

v.

Philips,

* 768
v.

2 Bro. C. C. 723.

2nd.

Lands expressly devised

pavment

of debts.

Serle

St

221

* 7G9

DUKE OF ANCASTER

V.

MAYER.

[Martin v. Eloy, 2 P. Wins. 386; Phillips v. Parry, 22 Beav. 279. Frye, 17 S. & R. 426.] And a proviso inserted in a mortgage of a lunatic's estate (with respect to which he afterwards died intestate), making sach estate as between his heirs and devisees primarily liable to the mortgage debt previous to his lunacy secured by the deposit of the title deeds only, has been held not to be intended to shift the primary liability from other real estates which the lunatic had, when sane, devised upon trusts for payment of his debts: Free-

man

Hem. & Mill. 758. Lands decended to the heir: Galton v. Hancock, 2 Atk. 424, [Livingston v. Living427, 430; Lomax v. Lomax. 12 Beav. 285. ston, 3 Johns. Ch. 148; Robards v. Wortham, 2 Dev. Eq. 173.] Dames v. Topp, 2 Bro. 4th. Lands devised charged with debts
v. Ellis, 1

3rd.

And in this last case all the devisees (including the deC. C. 259. visee of the mortgaged estate, if so charged) must contribute pro 'rata towards payment of the mortgage debt: Ca-rter v. Barnadiston,
Harper v. 1 P. Wins. 505 ; Middleton v. Middleton, 15 Beav. 450 G. 309. Munday, 7 De G. Mac. And where a property is subject to a mortgage, and part is devised to specific and part to residuary devisees, each part of the estate must contribute rateably: Gibbinsx. Eyden, 7 L. R. Eq. 391.
;

&

L. R. Eq. 1, Lord case, however, of Brownson v. Lawrence, Romilly, M. R., was of opinion that the fact of a testator having specifically devised part of the mortgaged estate, and left the other part to pass by a general residuary devise, was of itself an expression of his intention, that the part which passed by the general residuary devise should be primarily liable to the payment of the whole of the mortgage debt in exoneration of the part which was specifically This devised, and that therefore Locke King's Act did not apply. decision, however, appears to be contrary to the current of authority,

In the

and had been

distinctly disapproved of by Sir G. Jessel,

M.

R., in

the recent case of Sackville v. Smyth, 17 L. R. Eq. 153, 155. A devisee is not entitled to have the estate exonerated out of the personalty, as against specific devisees of real estate (Gallon v. Hancock, 2 Atk. 482; Emuss v. Smith, 2 De G. & Sin. 722), amongst which are included notwithstanding (1 Vict, c. 26, s. 24) residuary See Eddels v. Johnson, 1 Giff. 22 Pearmain v. Twiss, devisees. Emuss v. Smith, 2 De G. & Sm. 722 Clark v. Clark, 2 Giff. 130 34 L. J. N. C. (Ch.) 477 overruling Dady v. Hartridge, 1 Dr. & Sm. 236; Barnwell v. Iremonger, lb. 242; Rotherham v. Rotherham, 26 Bear. 465 Rodhouse v. Mold, 35 L. J. Ch. 67. where [ * 769 ] * And see Hensman v. Fryer, 3 L. R. Ch. App. 420, Lord Chelmsford reversed the decision of Sir R. Kinder and sley, V.-C, and decided that a residuary devise was specific this decision was approved of by Lord Cairns, in Lancefield v.
;
; ; ; ; ;

Iggulden, 10 L. R. Ch. App. )36." Lord Chelmsford, however, in Hensman v. Fryer, was clearly in error in making the specific devisees contribute rateably to pay

222

DUKE OF ANCASTER

V.

MAYER.

* 770

See Collins v. Lewis, 8 L. R. Eq. debts with pecuniary legatees. 70S; Dugdale v. Dugdale, 14 L. R. Eq. 234; Tomkins v. Colthurst, Ch. D. 626. Nor is such mortgagee entitled to be exonerated as against specific legatees (O'Neal v. Mead, 1 P. Wins. 693; Emu88 v. Smith, 2 De nor as against pecuniary legatees (Lutkina v. G. & Sm. 737, 738); nor as Leigh, Ca. t. Talb. 53; Johnson v. Child, 4 Hare, 87); nor, a fortiori, against a widow's paraphernalia (1 P. Wms. 730); See Hamilton v. Worley, 2 Ves. jun., 65, as against creditors. where Lord Loughborough observes, "The equity the Court affords to a person entitled to real estate by devise, to have the incumbrances upon it discharged as a debt out of the personal estate, can go no further than this: as between the heir or devisee of the estate and residuary legatee, it cannot interfere with the disposition of other parts, as specific or general legacies, much less with the interest of creditors." The heir, where an estate descends subject to a mortgage, is entitled to exoneration, in cases not within the Act 17 & 18 Vict. c. amended by 30 & 31 Vict. c. 69, first, out of the general 1 13, as personal estate; and lastly, out of real estate expressly devised for payment of debts: Hill v. Bishop of London, 1 Atk. 621; Chester v. Poicell, 7 Jur. 389; Yonge v. Furse, 20 Beav. 380.
1

Locke. King's (17 & 18 Vict. L3), s. 1, the mortgaged property " shall be charged, every part c. thereof, according to its Value, bearing a proportionate part of the mortgage debts charged on the whole thereof." This, however, with the other provisions of the act, is subject to a contrary intention appearing by the will or other document of the person Hence if freeholds mortgaged together to secreating the charge. cure one sum, on the mortgagor's death, went to different devisees, in the absence of any intention to the contrary on his part, the devisees would have to contribute rateably to pay the mortgage debt. So if freeholds, leaseholds, or other personal estate, such as policies of assurance, were mortgaged together, on the death of the mortgagor intestate, in the * absence of any con- [ * 770 ]

Where motgage
1

Act.]

It will be seen that under Locke King's Act

debts apportioned

and paid under

trary intention, the heir at-law and executor must, under the act, bear the burthen rateably: Evans v. Wyatt, 31 Beav. 217; Trestrail v. Mason, 7 Ch. D. 655; Re Netcmarch, 9 lb. 12; Leonino v. Leonino, 10 Ch. D. 460; and see Heveningham v. Heveningham, 2 Vern. 355. Where moreover there is a further security given at a subsequent time, for the original and an additional debt, without anything more, such further security will not be considered as secondary as betweeu different persons claiming the two properties from the mortgagor, and they will all contribute rateably towards payment of the amount due: Leonino v. Leonino, 10 Ch. D. 460; A thill v.

* 771
Atiu'II,
11.

DUKE OF ANCASTER

V.

MAYER.

16 Ch. D. 225, 226, overruling Lipscomb v. Lipscomb. 7 L. Eq. 501; De Rochfort v. Dawes, 12 L. R. Eq. 540. The mortgagor, however, may not only by express terms, but also by implication in the mortgage deed, or by the will, declare his intention as between the two estates how the debt is to be primarily borne: Leonino v. Leonino, 10 Ch. D. 465. The mere statement, however, in a second mortgage of other property, that it is " a collateral security " is not sufficient to show that it was intended that property comprised in a former mortgage should be primarily liable (Athill v. Athill, 16 Ch. D. 211; Early Leonino v. Leonino, 10 Ch. D. 460), although v. Early, lb. 214, n. where that word was used, it was in a well known case held, as the result of the ivhole transaction, that one property was not to be called upon to provide for payment of part of the debt: Marquis of Bute v. Cunynghame, 2 Russ. 275. The fact of a testator having specifically devised part of the mortgaged estate, and left the other part to pass by a general residuary devise, was held by Lord Romilly, M. R., to be of itself an expression of his intention that the part which passed by the general residuary devise should be primarily liable to the payment of the whole mortgage debt, in exoneration of the part which was specifically devised, and that therefore Locke King's Act did not apply: Brownson v. Lawrence, 6 L. R. Eq. 1. This case, however, appears, to be contrary to the current of opinion, and has been distinctly overruled by Sir G. Jessel, M. R., in the recent case of Sackville v. Smyth, 17 L. R. Eq. 153, 155. And it may now be considered as established that where property is subject to a mortgage, and part is devised to specific, and part to residuary devisees (both devises being now considered specific), each part of the estates must contribute rateably (Hensman v. Fryer, 3 L. R. Ch. App. 420; Gibbins v. Eyden, 7 L. R. Eq. 391; * Iggulden, 10 L. R. Ch. App. 236); and in [ *771 ] Lancefieldv. Sackville v. Smyth, 17 L. R. Eq. 153, where the mortgagor devised all bis real estate to A., subject to a life interest in a specific part thereof devised to B., it was held by Sir G. Jessel, M. R., that B.'s life estate was subject to a proportionate share of the
;

mortgage debt. But a party seeking contribution must show not only that there is a charge on both properties, but also that they are equally liable inter se: In re Dunlop, Dunlop v. Dunlop, 21 Ch. D. 583, 593. We have before seen in what order, in cases not coming within Locke King's Act, assets are applicable in the exoneration of mortgaged estates, on behalf of one taking as devisee or heir-at-law
thereof, ante, 767

769.

Act, unless by the signification of a contrary intention the primary liability of the land in mortgage to bear the mortgage debt be thrown upon other real or personal property of the party dying seised of or entitled to such land, the devisee or

Under Locke King's

224

DUKE OF ANCASTER

V.

MAYER.

* 772

heir-at-law cannot claim a right to have land in mortgage exonerated by the application for that purpose of any of the real or personal
estate of the testator or ancestor. As far as they are concerned, the land in mortgage must solely bear its burden. Where a contrary intention has been shown under the act, by the substitution of another fund for the exoneration of the property in

mortgage, it has been held by the greater weight of authority that if the fund be insufficient to pay off the mortgage, the deficiency must be borue by the mortgaged estate (Rodhams v. Mold, 35 L. J. (Ch. 67; and see Gall v. Fenwick, 43 L. J. Ch. 178), although it seems to have been erroneously thought at one time that in such a case the operation of the act was altogether defeated, and that exoneration might be claimed out of the assets in the same order as under the old law: Allen v. Allen, 30 Beav. 403; Greated v. Greated, 26 Beav. 621.
right of the mortgagee to obtain full payment or satisfaction mortgage debts out of all the assets of the mortgagor, incase the mortgaged estate should be insufficient, is not affected by Locke King's Act, and it is presumed, that after having resorted to the funds already indicated, he will be entitled to payment out of the
of his
assets of the testator in the ordinary course of administration. The election of the mortgagee to come upon the personalty for payment of the mortgage debt will not determine what fund shall

The

be ultimately charged with it; for, under the ordinary rule of marshalling the simple contract creditors, the widow or legatees would have a right to stand in his place for so much of the real estate as he should take out of the personal. They will not, therefore, * be prejudiced, nor will the devisee be benefited, by [ * 772 ] the election of the mortgagee to proceed, as he undoubtedly may, against the personal estate in the first instance.
It must, however, be remembered that, under Hi nde Palmer's Act (32 & 33 Vict. c. 46), a mortgagee, being (as he ordinarily is by reason of the covenant in the mortgage deed) a specialty creditor, is only entitled to be paid pari passu with simple contract creditors. Moreover, under the Supreme Court of Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 10, in the administration of the assets of any person who may die after the 1st of November, 1875, and whose estate may prove insufficient for the payment in full of his debts and liabilities, and in the winding-up of companies, a mortgagee, if he proves for his whole debt, must give up his security, or, if his security be realised or valued, he can prove only for the balance. See In re Summers, Bosicell v. Garney, 13 Ch. D. 136; Trower's Prevalence of Equity, p. 4. And under the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), the estate of a person dying insolvent may be administered in bankruptcy upon the petition of a creditor of a deceased debtor whose debt would have been sufficient to support a bankruptcy petition against such debtor had he been alive. Sect. 125. * 15 WHITE ON EQUITY. 225

* 773

RUSSEL

V.

MISSEL.
securities, see

'2

As to marshalling of assets L. C. Eq. and note.

and

Aldrich

v.

Cooper,

[Doctrine of Primary Liability of the Personal Estate Restated. The personal estate of a decedent is the natural fund for the payment of his debts and also the legacies, and as a general rule, it is But to be first exhausted before the real estate is to be called upon. the testator may exonerate the personal estate by transferring from The presumption, however, is it to the real estate the liability. against the intention to exonerate and in favor of considering the real estate as an auxiliary fund. If the personal estate as a whole and not as a residue is given in the nature of a specific bequest, and another fund is supplied for the payment of debts and legacies, or if the testators by his will has shown any intention to preserve the personal estate entire for any given purpose whatever, it will be sufficient to exempt the personalty. The personal estate may also be exonerated by implication, as in the case of a mortgage debt not created by the testator and which has been held under certain circumstances to be payable not out of If, however, for the personalty but out of the mortgaged premises. any reason the debt becomes that of the owner of the land, it must be paid out of his personalty.]

* 773

RUSSEL

v.

RUSSEL

(a).

Easter Term, 1783.

[reported 1 BRO.
c. c.

269.]

[Reg. Lib. 1782, A.,fol. 441.]

Equitable Mortgage by deposit of Title-Deeds.]

lease carried into effect, against assignees

Pledge of a Eviof a bankrupt. dence of the bankrupt, he having had his allowance and certificate, allowed to be read.
lease having been pledged by a person (who afterwards bea bankrupt) to the plaintiff, as a security for a

came

sum

of

money

Berchen, 2 Vern. 617, where it was held that the deposit in (a) that ease for the performance of a written agreement, though there was no writing declaring it to he a security, was not within the statute.

Hales

v.

Van

226

RUSSEL

V.

RUSSEL.

* 774

lent to the bankrupt, the pledgee brought this bill for a sale of the

leasehold estate.

Mr. Lloyd, for the

plaintifl

plaintiff,

merely stated the case, and that the

had a Mr. Kenyon,

lien

upon the

estate.

for the defendants, the assignees, insisted that the

plaintiffs claim

was against the law

Frauds
(a).

of the land
is

for that

it

would

be charging land without writing, which

of the Statute of

against the fourth clause

Lord Loughborough, Lord Commissioner.

In

this case it is a

delivery of the title to the plaintiff for a valuable consideration.

The Court has nothing

In
all

to do but to supply the legal formalities.

is

these cases the contract

not to be performed, but

is exe-

cuted.

Ashurst, Lord Commissioner.

Where

the contract

is

for a sale,

an equivocal act to be explained, whether the party was admitted as tenant or as purchaser. So here it is open to explanation, upon what terms the lease was deit is

and

admitted so to

be, it is

livered.

A question arose as to reading the bankrupt's evidence, * he having had his allowance and certificate, but the
Court suffered
refund.
it

774

to

be read, thinking him not bound to

An

security for the

was directed to try whether the lease was deposited as a sum advanced by the plaintiff to the bankrupt. Upon the trial, the jury found it was deposited as a security (b).
issue

By
of

the 4th section of 29 Car.

2, c. 3,

commonly

called the Statute

Frauds and Perjuries, it is enacted, "that no action shall be brought upon any contract or sale of lands, tenements, or heredita(a)
(6)

29 Car. 2. c. 3, a. 4. The Reporter has been informed that this cause came on afterwards (though he has not been able to ascertain the date) before Lord Thurlow, <m the equity reserved, when his Lordship ordered that the lease should be sold, and the plaint ill' paid bis money. The same point lias been since determined in the eases of Featberstone v. Fenwick, May, 1784, and Harford p. Carpenter, 17th and 1-th of April. 1785, where Lord Thurlowheld, that the deposit of deeds entitled the bolder to have a mortgage, and to have bis lien effectuated. Although there was no special agreement to assign, the deposit affords a presumption that such was the intent.

227

* 775

RUSSEL

V.

RUSSEL.

ments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by tbe party to be charged therewith, or some other person thereunto by him lawfully authorised." Notwithstanding this statute, it was held first by the Lords Commissioners, and afterwards by Lord Thurloiu, in the case of Russel v. Russel, that a mere deposit of title-deeds by a debtor for the purpose of securing a sum of money, gave his creditor, in whose hands thev were placed, an interest in the land to which they related, so as to enable him to file a bill for a sale. 'I remember," says Lord Eldon, "previously to Russel v. Russel, it was very much doubted, whether a mere deposit of deeds constituted an equitable mortgage, if there was no writing to manifest since, resting altogether upon parol, it is quite comthe purpose petent to the man who put the deeds into the hands of a creditor, without reference to the debt, afterwards, from favour to that creditor, to say they were deposited with him for the purpose of securing his debt; and so all the perjury that the statute meant to But Lord Thurlow w as avoid is introduced, and the rule changed. of opinion, and that is not now to be disturbed, that the fact of the adverse jiossession of the deeds in the person claiming the lien, and out of the other, was a fact that entitled the Court to give an interest :" Ex parte Coming, 9 Ves. 115. On many other occasions, Rus* on, and dis[ * 775 ] set v. Russel, has been strongly commented approved of by Lord Eldon, as in effect repealing part of It has, however, been constantly acted upon the Statute of Frauds. and recognised as a binding authority. See Ex parte Wetherell, 11 Ves. 398; Ex parte Haigh, 11 Ves. 403; Ex parte Mountford, 14 Ves. 606; Ex parte Kensington, 2 V. & B. 79; Ex parte Hooper, 1 Mer. 9; Lacon v. Allen, 3 Drew. 579, 582; The National Bank of P. C. C. 299; Mellorx. Porter, 25 Ch. Australasia v. Cherry, 3 L.
'

D. 158. An equitable mortgage by deposit of title-deeds was, even before the Judicature Act, recognised at law in a case where it was held that the assignees in bankruptcy of the depositor of the deeds could not recover from the depositee rents received by him since the time of the deposit: Sumpter v. Cooper, 2 B. & Ad. 223. [Mortgages by deposit of title deeds have been sustained in several of the United States, but they have not been of frequent occurrence: Jarvis v. Dutcher, 16 Wis. 307; Richards v. Learning, 27 111. 431; Griffin v. Griffin, 3 C. E. Green, 104; Case v. Peck, 21 N. Y. 587; Hackett v. Reynolds, 4 R. I. 512; Mounce v. Byars, 16 Ga. 469. They were disproved of in Kentucky, in Vanmeter v. McFadden, 8 B. Mon. 435, and in Ohio and Pennsylvania they have been en Probosco v. Johnson, 2 Disney, 96; Edwards v. tirely rejected: Trumbull, 14 Wright (Pa.), 509; Shitz v. Dieffenbach, 3 Barr, 233. As to the question in Vermont, see Bicknell v. Bicknell, 31 Vt. 498.]

228

RUSSEL

V.

RUSSEL.

* 776

An

equitable mortgagee, however, by deposit, could not retain the title-deeds of an estate in an action of trover at law against him by a previous purchaser of tbe fee from the depositor: Harringv. Price, 3 B. & Ad; 170. Nearly all property which can be made the subject of a legal mortgage can be made the subject of an equitable mortgage by

ton

deposit.

A deposit of a copy of court rolls (Ex parte Warner, re Cooke, Rose, 286; Winter v. Lord Anson, 3 Russ. 493; Whitbread v. Jordan, IT. & C. Exch. Ca. 303; Tylee v. Webb, 6 Beav. 552; l'njce v. Bury, 2 Drew. 11), of an agreement for a lease (The Unity Joint Stock Mutual Banking Association v. King, 25 Beav. 72), though afterwards granted upon different terms (Ex parte Reid, 17 L. J. (Bkcy.) 19), or of a policy of insurance (Ferris v. Mulhns, 2 Sm. & G. 378), or of a registered mortgage of a ship (Lacon v. Liffen, 4 Giff. 75; 9 Jur. N. S. 13), will create an equitable mortgage. So likewise will a deposit of certificates of shares in a public company under the Joint Stock Companies Act (1862): Ex parte Moss, 3 De G. & Sm. 599; Ex parte Steicart, Re Shelley, 34 L. J. (Bkcy.) 6; 13 W. R. (L. C.) 356. Sed vide Ex parte Boulton Be Sketchley, 1 De G. & Jo. 163. Where the owner of shares borrows money, and deposits with the lender certificates of his shares and also transfers thereof signed by him, but with the date and name of the transferee left blank, the lender has an implied power to fill up the blanks, and obtain registration (In re Tahiti Cotton Company, Ex parte Sargent, 17 L. R. Eq. 273), but semble if no time be fixed for repayment of the loan, and nothing was said as to the object of a transfer, the depositee has no authority, without a previous demand for repayment of the loan, to sell or sub-mortgage the shares, and fill in the name of the purchaser or * sub-mortgagee as transferee: [*776] France v. Clarke, 22 Ch. D. 830. [There are two points of difference between a mortgage of personal propertyand a pledge thereof. A pledge confers no right to sell, but only to retain possession until the debt has been paid. As to the wrongful sale by the pledgee, see Fisher v. Brown, 104 Mass. 259. A mortgage conveys the entire property of the thing mortgaged to the mortgagee with a condition attached, and if the condition is broken, the property rests absolutely in the mortgagee. In equity the tendency is to regard the delivery of possession of personal property as always essential to a valid mortgage of the same. Walcott v. Keith, 2 Foster, 196; Whittle v. Skinner, 23 Yt.
1

531.] Notice, however, to the companv of such deposit was necessary previous to the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71. s. 15 \, to take such property out of the order and disposition of the depositor, should he become bankrupt or insolvent: Ex parte Boulton, re Sketchley, 1 De G. & Jo. 163; 3 Jur. N. S. Ch. 425. And

229

* 777

RUSSEL

V.

RUSSEL.

as shares in companies, the legal title to which depends on the register, have been decided not to be choses in action, they fall within the reputed ownership clause (sub-s. 5) of that Act, and therefore

such notice is now requisite: 12 L. R. Eq. 354.

Ex parte

Union Bank of Manchester,

Vict.

Act, 1883 (46 & 47 See Lead. Cas. Merc. L. 706-9, 3rd ed. And a deposit of a land order of the New Zealand Company, by way of mortgage, was held to be good, without notice having been given to the company of the deposit: Ex parte Burnett, 1 De G.

The

result is the
52),
s.

same under the Bankruptcy

c.

44

(iii.).

194.

A public company, under the Joint Stock Companies Act, 18G2, can make a mortgage by deposit (In re General Provident Assurance Company, ex parte National Bank, 14 L. R. Eq. 507), but not to any of its own officers, such as a manager or director, or to their solicitor, even if he be only solicitor in hac re (In re Patent Bread Machinery Co., ex parte Valpy and Chaplin, 7 L. R. Ch. App. 289; In re Native Iron Ore Company, 2 Ch. D. 345), by a mere deposit of deeds, or otherwise than in the manner prescribed by the Companies Act, 1862, s. 43, so as to be binding against the general creditors of the company, because it is the duty of an officer of the company to see that all mortgages are made in compliance with the In re General directions of the Legislature, and duly registered: Provident Assurance Company, 14 L. R. Eq. 513, cited, In re Wynn Hall Coal Company, 10 L. R. Eq. 515. These authorities have been disapproved of by Sir G. Jessel, M. R., who, in a recent case, observed that he should have thought that the penalty for not registering under the 43rd section of the Companies Act, 1862, was distinct and precise, and that if the invalidation of the mortgage had been the penalty intended to have been imposed, the Act would have said so. His Lordship, however, said also that it seemed he was wrong, because there were two decisions of the Court of Appeal the other way: In re International Pulp and Paper Company, Knowles' Mortgage, 6 Ch. D. 561. It seems, at present, that there is an inclination on the part of the Court, to confine the principle upon which these decisions proceed within the narrowest limits. Hence, although it is admit[* 777 ] ted *that there is some personal equity against a director or officer of a company, which prevents him from setting up such a mortgage himself, it has been held that such principle does not apply to any person claiming under or through a director or officer, but only to a director or officer himself (In re International Pulp and Paper Company, 6 Ch. D. 556), nor does it apply to a case where a mortgage was made to partners who were not all directors of the company: In re South Durham Iron Company, Smith's Case, 11 Ch. D. 579. Where, moreover, two directors to whom property of the company had been mortgaged had directed the secretary to register the
230

RUSSEL

V.

RUSSEL.

778

mortgage, and furnished hirn with the materials for so doing, they were'lield not to have knowingly and wilfully, within the meaning of the Act, authorised or permitted the omission of the entry of the mortgage on the register; and as they had realized their security
before the commencement of the winding-up of the company, the liquidator was held not to be able to compel them to refund the proceeds of the security: In re Borough of Hackney Newspaper Company, 3 Ch. D. 669. A company, however, can effect a valid mortgage by deposit of deeds with bankers without complying with the formalities required by the Legislature upon the execution of mortgage deeds, because a banker is not an officer of a company, and therefore it is not his duty to see that such formalities were complied with: In re General Provident Assurance Company, ex parte National Bank, 14 L. R. Eq. 507. See also In re Joseph Williams, 3 I. Kep. Eq. 346; In re Patent File Company, 6 L. R. Ch. App. 83; In re Imperial Land,

of Marseilles; In re National Bank, 10 L. R. Eq. 298. essential in the case of a loan, as for instance registration Nor upon debentures to ordinary shareholders: In re General South American Company, 2 Ch. D. 337. [Mortgages oE the rolling stock of a railroad are of frequent occurrence, such mortgages being regulated by statute in many of the States: 2 Redield on Railways, 501, 508; Ladley v. Creighton, 20 P. F. Smith, 494; Morrill v. Noyes,

Company
is

56 Me. 465.]
Jessel,

Sir R. Matins, V.-C, taking a distinctly opposite view to Sir G. M. R., has strongly disapproved of the Courts having gone so far in allowing of mortgages by deposit by companies, observing that he thought that it would have been very well indeed if the Courts had resolved never to give any effect to any mortgage by companies by deposit of title-deeds or otherwise, unless the requisites of the articles of association had been first complied with, be-

cause it is a great safeguard to shareholders that these ceremonies should be gone through. It would be a great restraint on careless or fraudulent directors and officers of the company that they could not create a mortgage upon the property of the company without going through all such ceremonies as those which were* prescribed: In re General Provident Assurance Com- [ * 778 ] pany, ex parte National Bank, 14 L. R. Eq. 513. Sed vide In re Patent File Company, 6 L. R. Ch. App. 83, 87, 88. The directors of a benefit building society enrolled under 6 & 7

Win. 4, c. 32, having by one of its rules power to borrow money from time to time at interest, such borrowed money to be a first charge upon the funds and property of the society, cannot by a de-. posit with lenders, as security, of title-deeds of properties which had been mortgaged to the society by advanced members, give the depositees a special equitable charge upon the specific properties, such claim being inconsistent with the rule, which was that all moneys borrowed under it were to have the benefit, equally pari
231

779

RUSSEL

V.

RUSSEL.

passu, of a first charge upon the general funds and property, and in such case on the winding up of the society it was held that the depositees were entitled, on giving up their securities, to payment out of the assets, after satisfaction of the outside creditors, and in priority to the claims of all shareholders or members: Murray v. Scott, 9 App. Ca. 519; In re Mutual Aid Permanent Benefit Building Society, 30 Ch. D. 434, affirming the decision of Kay, J., reported 29 Ch. D. 182. Although the law of Scotland knows nothing of equitable mortgages, the owner of a Scotch estate can be compelled in England to give effect to a pledge made by the deposit of title-deeds: Ex parte Pollard, Mont. & C. 239; 4 Deac. 27; Coote v. Jecks, 13 L. R. Eq. 597; Westl. Priv. International Law, 58. And it has been held that a deposit of a minute of a lease of lands and a pledge of chattels in Scotland did not require registration, under the Bills of Sale Act, 1854 (17 & 18 Vict. c. 36), repealed by sec. 23 of the Bills of Sale Act, 1878 (41 & 42 Vict. c. 31), repealed in part by 45 & 46 Vict. c. 43: Coote v. Jecks, 13 L. R. Eq. 597, 602. A deposit of the title-deeds of a house in Shanghai has been held good, although no memorandum of the deposit was made at the British Consulate at Shanghai, and the house remained registered in the name of the depositors: Ex parte Holthausen, 9 L. R. Ch.

App. 722.
Moreover, where the lex loci rei sitce does not forbid, and the pardo not contract with reference to any other particular law, and the general law of the place is English, an equitable lien will be created upon land by a deposit of title-deeds: Varden Setlt Sam v. Luckpathy Royjee Lallah, 9 Moo. Ind. App. 303. If there are no title-deeds or conveyances in the depositors' possession, an equitable mortgage may be created by the deposit of the receipt for purchase money, containing the terms of the agreement for sale (Goodwin v. Waghorn, 4 L. J. N. S. Ch. 172); but * 779 ] the deposit of an attested copy of a * deed will not it seems [ be sufficient for that purpose: Ex parte Broadbent, 1 M. & A. 635; 4 D. & C. 3. [In a number of cases, agreements to give a mortgage have been held to create a lien Muskingum v. Carpenter, 7 Ohio, 21; Hall v. Hall, 50 Conn. 104; Matter of Howe, 1 Paige, 125; Reed v. Simons, 2 Des. 552.] Where land has been registered under the Land Registry Act (25 & 26 Vict. c. 53) no equitable mortgage could be created by a deposit of the title deeds (sec. 63), but it might be created by a deposit of the land certificate (sec. 73). Under the Land Transfer Act, 1875 (38 & 39 Vict. c. 87), which has in effect repealed the Land Registry Act, subject to any registered estates, charges, or rights, the deposit of the land certificate in the case of freehold land, and of the office copy of the registered lease in the case of leasehold land, shall, for the purpose of creating a lien on the land to which such certificate or lease relates, be
ties
:

232

MISSEL

V.

RUSSEL.

* 780

deemed equivalent to a deposit of the title-deeds of the land. (Sect. 81 >" Previous to the decision of Russel v. Itussel, many cases occui n-d in which persons having title-deeds in their hands had a right to say they had an interest in the deeds, but not in tho estate, except collaterally; if, for instance, the owner could not part with the estate without the deeds, he should not have them without paying tho debt, the possession of the deeds giving no direct interest in the estate, but an interest arising ont of the power of embarrassing the proprietor in the sale: Ex parte Whitbread, 19 Ves. 210; Ex parte Kensington, 2 V. & B. 83.
of title-deeds to secure a sum of Sir P. T. Kindersley, V.-C. "By the deposit the mortgagor contracts that his interest shall iSe liable to the debt, and that he will make such conveyance or assurance as may be necessary to vest his interest in the mortgagee: " Pryce v. Bury, 2 Drew. 42.

Tho effect of a mere deposit money has been thus stated by

may show

of an agreement upon the deposit of the deeds, the intention of the parties to have been different, and that a mere indemnity against a contingent liability on a joint and several promissory note was intended. Thus, in Sporle v. Whayman (20 Beav. 607', title-deeds were deposited, by the defendant with tho plaintiff as an indemnity against contingent payments to which he might become liable as security upon a joint and several promissory note, but there was no agreement to execide a formal mortgage. Before the plaintiff had made any payment, he hied a bill to have a formal mortgage executed. It was held, however, by Sir J. Romitly, M. B., that he was not entitled thereto, but only to a memorandum, signed by the defendant, specifying the terms of the deposit. But see Pryce v. Bury, 2 Drew. 42, affirmed 18 Jur. 967.

But the terms

seems, of an equitable mortgage by deposit of titlegive a lien on the lands and not on the deeds. [Liens may be created by a deposit of only a part of the title deeds: Lacon v. Allen, 3Drewry, 579; Ex parte Chippendall, 1 Deacon, 07.] Hence it has been held in Ireland * that where title deeds [ * 780 ] are deposited by way of equitable mortgage, the equitable mortgagee may be ordered, without prejudice to his rights, to lodge these deeds in Court: In re Girdicood, 5 L. B. Ir. 45.
effect, it

The

deeds,

is to

But if with such deposit there be a memorandum in writing of the equitable mortgage, such memorandum, it seems, would be an in strument creating a security or dealing with it, which under the 20th rule of 1859, the mortgagee would be entitled to retain: lb.
p. 47.

So where a person deposits deeds upon a condition, as for instance, that a sum of money shall be advanced for seven days to another party, if the persons with whom the deeds are deposited do not
fulfil

the condition by advancing the

money

for seven days,

233

* 781

RUSSEL

V.

RUSSEL.

they will have no lien upon the deeds: Burton v. Gray, 8 L. R. Ch. App. 932. Where a person fraudulently obtains the title deeds of the real owner, he cannot by depositing them with a third party to secure an advance of money create an equitable mortgage, as against the real owner (Spackman v. Foster, 11 Q. B. D. 99, 100, 101), who will be able to recover them back by an action (lb.), and the Statute of Limitations will not run against the real owner until a demand has been made by him for the deeds, and it has been refused: lb.

How equitable mortgages may be created.}-In order to create a valid equitable mortgage there must be either express evidence of the intention to do so, which may, as in the principal case, be by parol (Ex parte Haigh, 11 Ves. 403; Ex parte Mountfort, 14 Ves. 600; Ex parte Kensington, 2 V. & B. 83), or, as is often the case, by a memorandum in writing, or partly by writing and partly by parol (Casberd v. The Attorney General, 6 Price, 411; Ede v. Knotcles, 2 Y. & C. C. C. 172; Burgess v. Moxon, 2 Jur. N. S. 1069); or a presumption may arise of such intention from the mere deposit of the deeds, where their possession by the depositee cannot otherwise be accounted for: Featherstone v. Fenwick, 1 Bro. C. C. 270 n. Harford v. Carpenter, lb.; Edge v. Worthington, 1 Cox, 211; Ex parte Langston, 17 Ves. -227; Dixon v. Muekleston, 8 L. R. Ch. App. 155. The mere possession of deeds without evidence of the contract upon which the possession originated, or at least of the manner in which that possession originated, so that a contract may be inferred, may not be enough to create an equitable security. See Chapman But the fact that in this case there v. Chapman, 13 Beav. 308.
;

was a debt due, secured by bond, upon which

interest had been duly paid until within a short period before" the filing of the * 781 ] bill, might have * furnished sufficient grounds for the [ presumption that the deeds were deposited as a security See Ex parte Jones, 3 M. & A. 152; Williams v. for the debt. Medlicot, 6 Price, 495; Dixon v. Muekleston, 8 L. B. Ch. App. 155, 162; Smith v. Constant, 4 DeG. &Sm. 213, 216. There will be no equitable mortgage created if the circumstances under which deeds are left with a party are such as raise an inference that a deposit was not intended, as, for instance, where titledeeds were left in the counting-house of a banker, after he had refused to advance money on them, it was held that no valid equitable mortgage was created: Lucas v. Dorrein, 7 Taunt. 278; 1 J. B Moore, 29. And the mere possession, by a mortgagee of freeholds, of the deeds relating to leaseholds belonging to the same owner, will not extend the operation of the mortgage deed, or give any lien on the See Wardle v. Oakley, 36 leaseholds for the money advanced.

Beav. 27.
It

may be

here mentioned that the evidence in support of the

234

RUSSEL

V.

RUSSEL.

7^2

fact that the deeds were deposited as a security for a debl or advance ought to be produced at the hearing of the cause (Chapman v. Chapman, 13 Beav. 308); for if it be not then sufficient, no in-

olden quiry will be directed: lb. Philpot, 7 L. J. (N. S.) Ch. 237.

v.

Hearn,

1 Beav. 456; Kebell\.

No presumption of an intention to create an equitable mortgage can bo raised by a mere deposit of deeds in contravention of a written document by which it is accompanied: Shaw v. Foster,*) L. And it has been long since established that R. Ho. Lo. 340, 341. where there is a statement or memorandum in writing of the circumstances under which the deposit was made, parol evidence is not admissible to contradict it: Ex parte Coombe, 17 Ves. 369; and But it is admissible to exsee Baynard v. Woolley, 20 Beav. 583. tend a lien evidenced by a memorandum in writing. See Ex parte Kensington, 2 V. & B. 79, and Ex parte Nettleship, 2 M. D. & De G. 124, where Sir John Cross held, that an agreement in writing, accompanying the deposit of title-deeds, to secure a specific sum, might be extended as a security beyond that sum by a subsequent verbal agreement. An agreement accompanied with a deposit of title-deeds, for making a mortgage, or for pledging the same as a security, requires an ad valorem stamp (33 & 34 Vict. c. 97, s. 105); secus a memorandum simply stating the purpose of the deposit Meek v. Bayliss, 31 L. J. Ch. 448. But where the agreement, in consequence of being unstamped, is inadmissible as evidence, other parol evidence may be given, in order to establish the equitable mortgage: Hiern v. Mill, 13 Ves.
:

114.

Formerly, the memorandum of * deposit of deeds to se- [ * 782 ] cure an annuity required enrolment, under 53 Geo. 3, c. 141, and 3 Geo. 4, c. 92 (Ex parte Miller, 3 De G. & Sm. 553) but those Acts which were passed in order to prevent evasion of the usury laws, were, upon the abolition of those laws repealed by 17 & 18 Vict. c. 90, so that enrolment in such cases is not now necessary; but by a subsequent Act (18 & 19 Vict. c. 15, s. 12) registration in the Common Pleas, as against purchasers, mortgagees, and
;

creditors, is requisite.

presumption arises of an intention to create an equitable morttitle deeds, for the purpose of preparing a legal mortgage (Edge v. Worthington, 1 Cox, 211; Hockley v. Ban took, 1 Russ.-141; Keys v. Williams, 3 Y. & C. Exch. Ca. 62; Janus v. Rice, 5 De G. Mac. & G. 461; overruling Brander v. Boles, Prec. Ch. 375; Brisick v. Manners, 9 Mod. 284; Ex parte Bulteel, 2 Cox,
gage, by the deposit of

243;

Nowis

v.

Wilkinson, 12 Ves. 192; King

;

v.

Benson, 6 Price,

Prothero, 433, cited; Ex parte Hooper, 1 Mer. 1 Ex parte Pearse 1 Buck. 525); or by a direction to hold them until the settlement of an account or the execiation of a mortgage: Femcick v. Potts, 8 De G. Mac. & G. 506; Lloyd v. Attwood, 3 De G. & Jo. 614. Where the deeds remain as a deposit in the hands of the debtor,

&

235

*7S3

RUSSEL

V.

RUSSEL.

although accompanied by a memorandum, especially if it be not communicated to the creditor, a valid equitable mortgage will not be created thereby. This was decided in Adams v. Claxton, 6 Ves. 226, 280; going beyond the doubt, rather strongly expressed by Lord Eldon, C, in Ex parte Coming, 9 Ves. 113.
"Where, however, the debtor holds the deposit with a memorandeposit, as the servant of the creditor, it may be good: Ferris v. Mullins, 2 Sm. & Gift'. 378.

dum of

itor will

deposit of deeds with a third person for the benefit of the credbe valid, provided the intention with which it was made be satisfactorily proved. And the possession of the agent of the debtor will be sufficient if the intention to make him a trustee be shown by the memorandum of deposit: Lloyd v. Attwood, 3 De G.

&

Jo. 619.

of deeds with the wife of the depositor, to be kept by her for the creditor, was held by Lord Eldon, C, not to constitute a valid equitable mortgage: Ex parte Coming, 9 Ves. 115. A valid equitable mortgage may be created by a written memorandum of deposit, although no deposit of deeds may have been actually made with the creditor; as, for instance, when the deeds are already in the hands of a third party: Dawx. Terrell, 33Beav. 218, Ex parte Farley, 1 M. D. & De G. 683; Ex parte Heathcoate, 2 M. D. & De G. 711. *A written agreement also to deposit a deed, not then exe[ * 783 ] cuted, as for instance, a lease when granted, has been held upon the granting of the lease to create a valid equitable mortgage; Ex parte Orrett, In re Pye, 3 Mont. & A. 153; Ex parte Smith, 2 M. D. & De G. 587; Ex parte Sheffield Union Bank Co., 13 L. T. N. S. 477. But if no deposit has been actually made, a mere parol agreement to deposit a lease when granted (Ex parte Coombe, In re Beavan, 4 Madd. 249), or a mere verbal order to the intended lessor to do so (Ex parte Perry, In re Collins, 3 M. D. & De G. 252), will not create a valid equitable mortgage in favour of the persons See, with whom the deposit is so agreed or ordered to be made. also, Ex parte Hallifax, 2 M. D. & De G. 544.

A deposit

Moreover a written memorandum of a mere intention to make a deposit if it were not communicated to the creditor by the debtor while he could legally du so, or if the deposit were not actually made, though a trust for the payment of the debt might be thereby created, will not create a valid equitable mortgage: Wilson v. Balfour, 2 Camp. 579; Re Bankhead s Trust, 2 K. & J. 560.
,

It is clear that an equitable mortgage may be created by a deposit of part of the title deeds only (Ex parte Chippendale, 1 Deac. 67; S. C., 2 M. & A. 299; Whitbread v. Jordan, 1 Y. & C. Exch. Ca. 303; Ex parte Arkuright, 3 M. D. & De G. 129; Lacon v. Allen, 3 Drew. 579) and each depositee may have a valid security (Roberts v. Croft, 24 Beav. 223; 2 De G. & Jo. 6), unless the intention of
;

236


RUSSEL
V.

RUSSEL.
:

* 784

the parties appears to have been otherwise Ex parte Pearse & Prothero, Buck, 525. Nor is it necessary that the deeds deposited should show a good title in the depositor, as for instance, when ho deposits all the deeds except the conveyance to himself Ex parte Wetherell, 11 Ves. 393; Roberts v. Croft, 24Beav. 223; 2 De G. & Jo. 1; Thorpe v. Holdsworth, 7 L. R. Eq. 147; Ex parte Pott, 1 Jur. L59. A deposit, moreover, by a landlord of a lease to a creditor as a security, has been held to amount to an equitable mortgage of the whole fee: Richards v. Borrett, 3 Esp. 102. A deposit of deeds, relating to part of an estate, with a representation that they relate to the whole, will not create an equitable mortgage over the whole of tho property, but merely over that part actually comprised in the deed so deposited (Jones v. Williams, 24 Beav. 47); but the depositor may, under another head of equity, be compelled to make his representation good: Roberts v. Croft, 24 Beav. 229. An equitable mortgage of lands in Middlesex, created by a mere deposit of deeds, does not require registration under the provisions *of the Registration Act (7th Anne, c. 20), be- [ * 784]
:

cause there is no instrument to be registered: Sumpter v. Cooper, 2 B. & Ad. 223, 226; Re 'Kinney 's Estate, 61. R. Eq. 445; Re Hamilton, 9 I. Ch. 512. And it will not be rendered void by a subsequent deed conveying the premises not duly registered: Sumpter v. Cooper, 2 B. & Ad. 223. But it seems that a person taking under a subsequently registered conveyance, or a purchaser from him, is not entitled to priority over such unregistered equitable mortgagee: hire Burke, 9 L. R. Ir. 24; reversing S. C, 7 L. R. Ir. 57, 65. "Where a deposit of deeds is accompanied by a memorandum it will require registration in order to maintain its priority: Neve v. Pennell, 2 H. & M. 170; Moorex. Cidverhouse, 27 Beav." 639; In re Wright's Mortgage Deed, 16 L. R. Eq. 41; Credlandx. Potter, 18 L. R. Eq. 350; 10 L. R. Ch. App. 8. See the Yorkshire Registries Act, 1884 (47 & 48 Vict. c. 54), this Act is partially repealed and amended by 48 Vict. c. and

48

&

49 Vict.

c.

26; post, p. 797.

or interest is included in a mortgage by deposit. ] the deposit of deeds by a debtor constitutes what in familiar language is called an equitable mortgage, upon the whole of the property comprised in them: per Knight Bruce, V.-C, in Ashton v. Dalfon, 2 Coll. 566; Ex parte Bisdee, 1 M. D. & De G.

What property
facie,

Prima

333.

Where, however, the deposit is accompanied by a written memorandum, it may show to what property the security extends, as, for instance, whether certain estates (Ex parte Glyn, 1 M. D. & De G. 29) fixtures Ex parte Loyd, 1 M. & A. 494; 3 D. & C. 765), or fur;

237

* 7S5

RUSSEL

V.

RUSSEL.
G. 139), are to be compre-

niture

(Ex

parte Hunt,

M. D.

& De

hended therein. For instance,

if deeds deposited by way of equitable mortgage apply to various properties, if it is apparent on the memorandum

accompanying the deposit, and from the dealings of the parties, that a portion only of these properties was intended as a security, the lien of the depositee will extend no further than that portion: Wylde v. Radford, 33 L. J. (N. S.) Ch. 51; 12 W. R. (V.-C. K.) See, also, Ex parte Heathcoate, 2 r M. D. & De G. 611; Ex 38. parte Robinson, 1 D. & C. 119; Ex parte Leathes, 3 D. & C. 112;

Daw v.
And

33 Beav. 218. the equitable mortgage will be confined to the property comprised in the deeds deposited, although the memorandum may refer to deeds relating to other property which are not shown to have been deposited (Ex parte Powell, 6 Jur. 490), or the depositor may falsely state that the deeds actually deposited relate to property not comprised therein: Jones v. Williams, 24
Terrell,

Beav. 47.

who has deposited deeds with his credthem, and they cannot be distinguished, the creditor will have a lien on all the deeds of the debtor: Mason v. Morley, 34 Beav. 475. According to the well recognised principles of Equity, it is clear that where there has been no consent or subsequent acquiescence on
[

* 785

*Where

a debtor

itor abstracts

the part of the persons beneficially interested, who are sui juris, an equitable mortgage by deposit of deeds relating to trust property will not prevail against the trust: (Manningford v. Toleman, 1 Coll. 670:) but will affect any beneficial interest which the trustees may have therein: Ex parte Smith, re Hildyard, 2 M. D. & De G. 587. See also Ex parte Wright, 3 M. & A. 49; Cory v. Eyre, 1 De G. Jo. & Sm. .149; Stackhouse v. Countess of Jersey, 1 J. & H. 721 and see Bradley v. Riches, 9 Ch. D. 189. There the plaintiff, through his solicitor, contributed 500, and the solicitor 300 to a loan of 800 on deposit of deeds. The solicitor subsequently took a mortgage to The solicitor afterwards deposited the titlehimself for the 800. property with a bank as security for a loan mortgaged of the deeds
;

It was held, by Fry, J. that the plaintiff had priority for of 400. over the security to the bank. 500 his A fortiori will the cestui que trusts have priority over a depositee,

where the

trusts appear upon the deeds deposited: Welchman Coventry Union Bank, 8 W. R. 729.

v.

A deposit of title-deeds will comprehend any interest which the depositor may afterwards acquire in the property (Pryce v. Bury, 16 L. R. Eq. 153, S. C, 2 Drew. 11 ), and a share taken by partition in lieu of an undivided interest (Ex parte Farley and others, 1 M. D. & De G. 683) and where the owner of an estate subject to a mortgage afterwards paid it off, although he took a surrender of the term and kept the deed in his own possession, it was held that the lien
;

238

RUSSEL

V.

ItUSSEL.

* 7"'

created by the incumbrance extended to the whole of the estate freed M. D. & De G. 333. from the incTimbrance: Ex parte Bisdee, On a deposit of deeds by way of equitable mortgage, not only fixtures then existing, but also those subsequently erected on the buildings or land comprised in such deeds will form part of the security (Ex parte Price, 2 M. D. & De G. 518; Ex parte Cowell, L2 Jur. 411; 11 L. J. Bank. 16; Williams v. Evans, 23 Beav. 289: Ex parte Astbury, 4 L. 11. Ch. App. 080; Meux v. Jacobs, 7 L. R. Ho. Lo. 4S1); and it is immaterial whether such deposit be (Ex parte Astbury, 4 L. R. Ch. App. 030; Ex parte Tagart, In re Mackie, 1 De. G. 531) or be not (Longbottom v. Berry, 5 L. R. Q. B. L23), accompanied by a * memorandum, or if there be one, al- [ * 780] though no fixtures (Ex parte Price, 2 M. D. & DeG. 518; Ex parte Tagart, 1 De G. 531), or some of the fixtures only {Ex parte Broadwood, 1 M. D. & De G. 631) are therein mentioned. The result will be the same, whether the deposit be made by the owner in fee, who is also the owner of the fixtures (Ex parte 'Loyd, 3 D. & C. 705; Ex parte Price, 2 M. D. & De G.-518; Longboftom v. Berry, 5 L. R. Q. B. 123; Ex parte Moore and Robinson 's Banking Co., 14 Ch. D. 379), or by the lessee, when he is owner of the fixtures; and and although as between landlord and tenant they are removable (Meux v. Jacobs, 7 L. R. Ho. Lo. 481; Ex parte Astbury, 4 L. R. Ch. App. 030), for it has been long since decided that the peculiar law allowing the removal of fixtures as between landlord and tenant
1

entirely inapplicable to the relation of mortgagor and mortgagee: See, also, Ex parte Barclay, Fisher v. Dixon, 12 C. & F. 312, 328. 5 De G. Mac. & G. 403. And where a lease, the deeds relating to which had been deposited, had expired, and an agreement had been made for a lease which had not been granted, the produce of the fixtures were held to be still included in the security Eearenside v. Derham, 13 L. J. (N. S.) Ch.
is
:

354.

Where, moreover, the goodwill of a business carried on upon property included in an equitable mortgage is sold, the equitable mortgagee will be entitled to the proceeds: Chissum v. Dewes, 5 Russ. 29, and see Pile v. Pile, 3 Ch. D. 30. An equitable mortgage or a licensed public-house, created b\ deposit of title deeds, confers upon the owner of the mortgage the right to the licence as against the assignees in bankruptcy of the licensed owner of the public-house: Butter v. Daniel, 30 W. R. 724: In re O'Brien, Bankrupt, 11 L. R. Ir. 213. On the bankruptcy of the depositor, fixtures comprised in an equitable mortgage by deposit will not be considered as being in his order and disposition, but will belong to the mortgagee: Ex parte Barclay, 5 De G. Mac. & G. 403; Mather v. Eraser, 2 K. & J. 530; Ell. & Bl. 876; 3 Jur. 2 Jur. N. S. 900; Waterfall v. Penistone,
N.
S. 14.

It has been held that

an equitable mortgage by deposit 239

of title-

* 7S8

RUSSEL

V.

RUSSEL.

deeds with a memorandum of deposit, as it passed the fixtures, did not require registration under the Bills of Sale Act, 1854 (17 & 18 Viet. c. 36), so as to maintain its priority over a subsequent mortgage by assignment of the fixtui'es registered under the Act, the parties not being placed in such a position one towards the other upon which position the Bills of Sale Act would operate (see Meux v. *787] Jacobs, 7 L. R. Ho. * Lo. 481 ) It was not in facta question between a mortgagee and the general creditors represented by the assignee in bankruptcy, or between the assignees of the chattels in question by way of mortgage, and an execution creditor, as between which classes of persons alone has the Bills of Sale Act apparently on the face of it, any operation. lb. 489, per Lord See also Longbottom v. Berry, 5 L. R. Q. B. 123. Hatherley. It has however been held that where there has been an equitable mortgage by deposit without memorandum of premises upon which are fixtures, no registration having taken place under the Bills of Sale Act, 1854, (17 & 18 Vict c. 36) on the bankruptcy of the depositor, previous to the depositee having taken possession of the fixtures, they will pass to the trustees in bankruptcy, as being in the See In re Trethoivan, Ex order and disposition of the depositor. parte Tweedy, 5 Ch. D. 559; there the lease of a shipbuilding yard, and trade fixtures therein having been assigned to a shipbuilder to hold the leasehold premises for the residue of the term granted by the lease, and to hold the trade fixtures absolutely, he deposited the lease and the assignment with his bankers as security for advances made by them to him. No memorandum of charge was executed. The mortgagor afterwards filed a liquidation petition. The bankers had not taken possession of the trade fixtures. It was held by Bacon, V.-C, that as against the trustee in liquidation, the bankers had no title to the trade fixtures. " With regard," said his Honor, "to the question to which the bankrupt law is applicable, namely, whether by reason of there having been (as is admitted) no registration under the Bills of Sale Acts, or for any other reason, these viz. the trade fixtures, pass to the mortgagees, or chattels whether they are the property of the trustee in liquidation. Now after Ex parte Daglish, 8 L. R. Ch. App. 1072, it is clear that where
[

there is a perfectly separate transaction, where it is possible, and necessary to separate the chattels from the substantial property, then, unless there is a registered Bill of Sale, the mortgagee cannot Mr. YateLee has argued claim the chattels as against the trustees. that, inasmuch as in the present case there was nothing to register, there could be no registration effected, and that therefore the Bills The bankers were the of Sale Act can have no operation. true owners of the fixtures, and beyond all doubt they left the debtor in possession of them, and he was in possession of them with their They were in his reputed ownership, and in his order full consent. and disposition with the consent of the true owners. The
. .
.

788

bankers presented an appeal in this case, but

it

was *com-

240

MISSEL
promised: 5 Ch.
57t5.
T).

V.

RUSSEL.

* 789

508,

n.

See

Ex

parte Barclay,^ Ch. App.

The registration, moreover, under the Bills of Sale Act was held when an actual assignment in writing of leaseholds and trade fixtures was made to a mortgagee. Seo Begbie v. Fenwick, 8 L. It. Cb. App. 1075 n.; Hawtry v. Butlin, 8 L. 11. Q. B. 290, overruling Boyd v. Shorrock, 5 L. It. Eq. 72. The Bills of Sale Act, 1854, has been repealed by the Bills of Sale Act, 1878 (41 & 42 Vict c. 31), which has been since amended by the Bills of Sale Act (1878) Amendment Act, 1882, (45 & 46 Vict. c. 43) but the law upon this subject seems to be the same.
to bo requisite

See Robson on Bankruptcy, pp. 001, 008, 5th Ed. A deposit of an agreement for a lease by a person having only a lien upon the property will, as against the lien, create a charge for the amount advanced upon the deposit The Unity Joint Stock Mutual Banking Association v. King, 25 Beav. 72. A husband, by a mere transfer, although for value, of title-deeds, of which his wife was equitable mortgagee did not by the deposit reduce the sum secured thereby into possession, so as to defeat the right of his wife by survivorship before the Married Women's Property Act, 1S82 Michelmore v. Mudge, 2 Giff. 183. Where a deposit has been made by a partial owner, as a tenant for life, ho will only thereby affect his own interest, and not that of remaindermen Williams v. Medlicot, Price, 495; Turner v. Letts, 20 Beav. 185. An executor, having a beneficial interest in the property, may make a deposit without his co-executor joining Ex parte Sheffield
:

Union Banking Co., 13 L. T. (N. S.) 477. A joint owner as a tenant in common joining

in

a deposit,

may

bind his share, but if he joins without intending to bind his share, he will not be held so far as regards such share to have made a deposit. Burgess x. 'Moxon,2 Jur. (N. S. ) 1059.

For what
narily, as in

debts

an

equitable mortgage

may

be

a security.]

Ordi-

Russel v. Russet, an equitable mortgage by deposit will be a security only for the sum then advanced, or which may be mentioned in the memorandum accompanying it, if any; but it will not by implication only be held to include antecedent debts (Ex parte Martin, 4 D. & C. 457; 2 M. & A. 243; Mountford v. Scott, T. & R. 2<4), unless having regard to the whole transaction and the circumstances of the case, it appears to have been the intention of the parties ( Ex parte Farley, 1 M. D. & De G. 083, 089 Ex parte Smith, re Hildyard, 2 M. D. & De G. 587); and the expression " may advance," in the accompanying * memonin*7S9 ] dum, does not necessarily prevent the deposit from being
;

a security for past advances. lb. Moreover a deposit of deeds, whether it be accompanied by a memorandum or not, may by evidence, either written or parol, be
* 16

WHITE ON EQUITY.

241

* 790

RUSSEL

V.

RUSSEL.

hold to extend to sttbsequent advances, upon proof of an agreement that the deposit was originally made as a security as well for the first as for any subsequent advance, or upon proof that any subsequent advance was made upon tbe understanding that the deeds were to be a security for it (Ex parte Langston, 17 Yes. 227; Ex parte Wh if bread, 19 Ves. 209; Ex parte Kensington, 2 V. & B. 79; Ex parte Nettleship, re Burkhill, 2 M. D. & De G. 124; Ede\. Knowles, 2 Y. & C. C. C. 172; Baynard v. Wooley, 20 Beav. 5S3, 586); for Lord Eldon said, that this distinction appeared to him to be too thin, that you should not have the benefit of such au agreement, unless you added to the terms of that agreement the fact that the deeds were put back into the hands of the owner, and a re-delivery of them required; on which fact there is no doubt that the deposit would amount to an equitable lien within the principle of the cases: Ex parte Kensington, 2 V. &B. 83; 2 Bose, 138. Upon the same principle, where money had been advanced, previous to the abolition of the usury laws, at 6Z. per cent, on a promissory note, and a deposit of title-deeds of freehold property as a collateral security, and afterwards it was agreed by parol that a legal mortgage should be executed to secure the principal, and interest at 5Z. per cent., but no mortgage was executed, it was held by the Lords Justices, reversing the decision of Sir W. Page Wood, V.-C. (reported Kay, 423), that the parol agreement was sufficient to change the illegal into a legal contract, and that a return and fresh deposit of the deeds was not necessary to take the second contract out of the Statute of Frauds: James v. Rice, 5 De Or. Mac. & G. 461; see also Hodgkinson v. Wyatt, 9 Beav. 566. Where a debtor had deposited his title deeds with his creditor until such time as his account should not exceed 100Z., at which time they were to be restored to him. The debtor died indebted to the It was held by Sir J. L. Knight Bruce, V.-C, that creditor in 274Z. the deeds so deposited were a security for the whole 2141. Ashton v. Dalton, 2 Coll. 565. Although the deposit of deeds has been merely for the purpose of securing a simple contract debt, the debt will bear interest from the date of the deposit and by reason of it, though there be no express conk-act as to interest: see Carey v. Doyne, 5 Ir. Ch. Bep. where [ * 790 ] 104: a decision of the Master of the Bol]s in Ireland,* 5Z. per cent, interest was allowed, and which has since been followed by In re Kerr's Policy, 8 L. B. Eq. 331, where, however, only 41. per cent, was allowed; but see Ashton v. Dalton, 2 Coll. 565; Lippard v. Ricketts, 14 L. B. Eq. 291.
a contract in a security for the payment of money at a fixed rate down to that day, there is "no further contract for the continuance of the same rate of interest implied (Cook v. Fowler, 7 L. B. Ho. Lo. 27) but, interest by way of damages at 4Z. or 5Z. per cent, from that date will be allowed by the Court or a jury, until the day of payment of the principal

Where

there

is

on a day certain, with interest

242

RUSSEL
(lb.
1

V.

RUSSEL.

* 701

as to the
pal

and see In re Roberts, i Ch. J). 49), and if a provision ho made amount of interest payable on Don-payment of the princi upon a certain dav, it must be complied with. Ex parte Furber,
D. 191.

17

Cli.

rule an assignee of a mortgagee can be in no hotter position than the mortgagee; hence upon a transfer of a mortgage, which in the case of a mortgage by deposit may he made by a delivery of the deeds without the memorandum, should there be ono ( Ex parte Smith, re Hildyard, 2 M. D. & De G. 587), the assignee, if the assignment be without privity of the mortgagor, will take subject

As a general

between the mortgagor and mortgagee (Matthews v. Wallwyn, 4 Ves. 118); nor can anything be added to what is due, or interest turned into principal. lb. To whom the baa-Jit of an equitable mortgage may be extended. The benefit of an equitable mortgage by deposit may be subsequently extended to persons who were not originally depositees. Thus, where a deposit of deeds has been made with a firm, if it was the intention of the parties that the deposit should be for the benefit of any future members of a firm, it is necessary that such intention should either be expressly stated in the memorandum made on the deposit, or be proved by parol evidence (Ex parte Kensington, 2 V. & B. 79, 83); but dealings with the now firm may afford sufficient evidence of a new agreement with them, so as to givethem thebenefitof the deposit: Ex parte Oakes, re Worters, 2 M. D. & De G. 234. See also Ex parte Smith, In re Gije, Jb. 314. So whore an equitable mortgage was made to a firm of brewers to secure money lent, and porter to bo supplied by them, and several changes occurred in the composition of the firm, the business and debts on each occasion being assigned, and the deeds deposited by way of equitable mortgage being transferred to the new partners, and the trading carried on under the name of the original firm while porter was continuou.dy "supplied to the rnort- [ * 791 ] gagor on the security, and pa ments made by him on account. It was held by the Court of Bankruptcy in Ireland, that the benefit of the equitable mortgage passed to the persons for the time being constituting the firm, and extended to goods supplied by them as well as to goods which were supplied by the original members of the firm: In re O'Brien, a Bankrupt, 1 1 L. R. Ir. 263. It seems, however, that parol evidence without a memorandum in writing, is not admissible to prove that a man who holds deeds as a
to the account
]

security for his own debt holds them also as trustee to secure the debt of another: (Ex parte Whitbread, 1 .) Yes. 209, Rose, 299. It would be otherwise whore the depositary has himself advanced nothing. "This case," observed Lord Eldon, C, "has occurred: a person, with whom deeds were deposited, having advanced nothing, could not be the person who was to have an interest in the estate; and where there has been a dealing with the estate by a third person, who had made an* advance by connecting 'that'' dealing with
(

243

* 792

RUSSEL

v.

RUSSEL.

the only advance bv that person, the deposit has been held a security for him" (1 J Ves. 218). And new owners of property may so have acquiesced in a deposit by the former owners as to be equivalent to a re-deposit. Thus, when before the formation of a company in working a coal mine, the lease of the coal mine was deposited with a bank as security for the current account of the then owners of the mine, and after the company was formed and the mine was assigned to them, the lease was allowed by the directors to remain with the bank, this was held an equitable equivalent to a re-deposit of the lease by the company mortgage created by the company: In re Wynn Hall Coal Co., 10
(

Ij.

REq.

515, 520.

Bankers by the usage of trade, which being part of the law merchant, is therefore judicially noticed, have a general lien on all securities deposited with them as bankers by a customer (Davis v. Bowsher, 5 T. R. 488; Bolton v. Puller, 1 Bos. & P. 530; Bolland v. By grave, 1 Ry. & Moo. 279; Giles v. Perkins, 9 East, 12; Bosanquet v. Dudman, 1 Stark. 1; In re European Bank, Agra Bank So likewise have stock-brokers (Jones Claim, 8 L. R. Ch. App. 41 ). v. Peppercorne, Johns. 430); and although a general lien will not exist if there be an express contract, or circumstances that show an implied contract inconsistent with such lien (Brandao v. Barnett,
-

3 C. B. 519, 12 C. & F. 787; Rock v. Gorrisen, 2 De G. F. & Jo. 434; Locke v. Prescott, 32 Beav. 261; Wylde v. Radford, 9 Jur. (N. S.) 1169; 33 L. J. (N. S.) Ch. 5i; 12 W. R. (V.-C. K.) [*792] 38; Macnee * v. Gorst, 4 L. R. Eq, 325; Vanderzee v. Leese v. Martin, 17 L. R. Eq. 224; Willis, 3 Bro. C. C. 21 London Chartered Bank of Australia v. White, 4 App. Cas. 413), nevertheless, a deposit to secure a specific sum will not prevent a Jones v. Peppercorne, Johns. 430; In general lien from attaching.
;

re

Joseph Williams, 3

I.

R. Eq. 346.

whom a deposit of title-deeds is good.] A deposit of good as against the Crown, if made before the depositor became a debtor to the Crown, by record or specialty (Casberd v. Ward, 6 Price, 411; S. G, Dan. 239) unless it were made in favour of a person in whom it was a breach of duty to the Crown to take Broughton v. Davies, 1 Price, 216. it.
As
against
is

deeds

So, also, a deposit, as in the principal case, is valid as against the creditors of a bankrupt, unless it were made so near the bankruptcy in point of time, that, not being given under pressure, it may be held a fraudulent preference: in which case the depositary will, upon

a petition, be ordered to deliver up the deeds: Ex parte Ainsworth, Re Goren, 3 M. & A. 457. It may be considered now as finally decided (notwithstanding the stat. 1 & 2 Vict. c. 110, which gives to a judgment the effect of an equitable charge upon the land of the debtor), that an equitable mortgagee, by deposit of title-deeds, retains *his right in equity to

244

RUSSEL

V.

RUSSEL.

* 703

enforce his security against fche title of a creditor under a subsequent judgment, although the latter may have acquired the legal seisin and possession of the land under an elegit, without notice of the equitable mortgage: Whitivorth v. Gaugain, 3 Hare, 410, affirmed by Lord Lyndhurst, C, 1 Ph. 728; Abbott v. Stratton, 9 Ir. Eq. Rep. 233; Anderson v. Kemshead, 10 Beav. 329, 344; Batternbi/ v. Homan, 2 Ir. Ch. Rep. 232. An equitable mortgagee being a purchaser for valuable consideration pro tanto, his charge will, under 27 Eliz. c. 4, be effectual against a prior voluntary settlement. Ede v. Knoicles, 2 Y. & C. C. C. 172; Lister v. Turner, 5 Hare, 281; Kerrisonv. Dorrien, 9 Bing. 70. He may also as a creditor under 13 Eliz. c. 5, avoid such settlement if ho was a creditor at the time of the execution thereof: Lister v. Turner, 5 Hare, 281; Ede v. Knoicles, 2 Y. & C. C. C. 172. An equitable mortgage by deposit of title-deeds to secure a voluntary bond debt is valid as against a subsequent bankruptcy of the obligor, provided that he was solvent at the time of the transaction, and that there was no fraud on the part of any of the persons parties to the transaction Meggison v. Eoster, 2 Y.& C. C. C. 330. * Although a husband, by a mere transfer for value of [ * 793 ] title-deeds, of which his wife is equitable mortgagee, does not therefore reduce the sum secured into possession, he will ( fleet nally do so to the extent of any money he actually receives: Michelmore v. Mudge, 2 Giff. 183. Audit has been held that a deposit by husband and wife of the title-deeds of the wife did not operate as an appointment by the wife under the settlement: Lcuihicaite v. Clarkson, 2 Y. & C. Exch. 372. It has been held that a memorandum of a deposit of deeds made in Ireland as a security for a debt, by a person carrying on there the ordinary business of a banker, is within the provisions of 33 Geo. 2, c. 14 (Ir.), and ought according to their requirements to bo registered in order to be valid as against creditors under a trust deed executed pursuant to the provisions of that act: Copland v. Davies, 5 L. R. Ho. Lo. 358. As a general rule, an equitable mortgagee is liable to all the equities affecting the depositor. Thus, in Parker v. Clarke, 30 Beav. 54, Clarke, who was the transferee with notice of a mortgage obtained without consideration, deposited the mortgage and transfer with Phillips, who had no notice of the circumstances under which the mortgage had been obtained. Sir John Romilly, M. R., held that Phillips could only take what Clarke could give him, and that he could not be in a better situation than Clarke himself: that Phillips "ought to deliver up the deeds, and his only remedy was
:

agaiust Clarke."

So where a trustee deposits title-deeds in breach of trust, it is immaterial whether the depositary has notice of the trust or not; because he takes only an equitable interest, which must yield to the prior equity of the cestui que trust: Manningford v. Toleman, 1
245

* 794
Coll. 670;

RUSSEL

v.

RUSriEL.

and see Welchman

v.

The Coventry Union Bank, 8

W.

R. (V.-C.

W.)

729.

So where a trustee, in whose name railway shares are standing, deposits certificates of the shares by way of equitable mortgage with a person who takes no steps to be registered as owner of the shares, the earlier title of the cestui que trust will prevail over that of the equitable mortgagee. The Shropshire Union Railways and Canal Company v. The Queen, 7 L. R. Ho. Lo. 496, reversing S. C, reported 8 L. R. (Q. B. ) 420. And the mere fact of the cestui que trusts of ra'^ay shares registered in the name of a sole trustee, allowing him to have possession of the certificates of the shares which the trustee deposits by way of equitable mortgage, will not have the effect of postponing the prior title of the cestui que trusts to that of the * 794 ] equitable mortgagee. For the * cestui que trusts are justi[ fied not only in having stock in the name of a sole trustee, but they are also justified in giving him the certificates, which do no more than tell that which any person would have found out by looking at the books of the railway company, namely, that the stock stood in his name: Shropshire Union Railways and Canal Company v. The Queen, 7 L. R. Ho. Lo. 496, 509. So a trustee of a bankrupt who has deposited a lease by way of equitable mortgage, will not be allowed to disclaim the lease to the prejudice of the mortgagee, but if he assigns the lease to the mortgagee, the latter must covenant to indemnify him against liability under the lease: Ex parte Buxton, 15 Ch. D. 289; and see Wilkins
v.

Fry, 1 Mer. 244. to disclaimer of a lease in bankruptcy, see Bankruptcv Act, 1883, sect. 55; Bankruptcy Rules, 1883, sect, 232.

As

Priorities as between equitable morgagees and others.] As a general rule, a legal mortgagee without notice of a former equitable mortgage at the time he made his advance, will be entitled to priority over it, for the equities being equal, the law must prevail: Plumb v. Fluitt, 2 Anst. 432. But if the legal mortgagee advanced his money with notice of the deposit, he will be postponed to it: {Birch v. Ellames, 2 Anst, 427; Hiem v. Mill, 13 Ves. 114; Jones v. Williams, 24 Beav. 47; Leigh v. Lloyd, 35 Beav. 455;) unless perhaps where the solicitor of the depositor has the deeds as equitable mortgagee, because a subsequent purchaser having notico merely of the fact that the deeds are in the possession of the solicitor, will not be considered to have notice of the equitable mortgage, as it is the usual course of affairs that a solicitor should have his client's deeds. A solicitor, therefore, upon his becoming equitable mortgagee, should, in order to affect third parties, give express notice to them: see Bozon v. Williams, 3 Y. & J. 150; and see Lloyd v. Attivood, 3 De G. & J. 651. A legal mortgagee will not, however, be postponed to a prior

246

RUB8EL

y,

ROSSEL.

795

equitable one, upon the ground of bis not having got in the titledeeds, unless there be fraud, or gross and wilful negligence on his pari; and the Court will not impute fraud, or gross or wilful negligence to the mortgagee, if he has bond fide inquired for the deeds, and a reasonable excuse has been given for the non-delivery of them hut the Court will impute fraud, or gross and wilful negligence to Hewitt v. the mortgagee if he omit all inquiry as to the deeds: Loosemore, J Hare, 458; Northern Comities of England Fire Insurance Co. v. Whip]), 20 Ch. D. 482, Lloyd's Banking Co. v. Jones, 29 Ch. D. 221, and see * notes to Le Neve v. Le [ * 795 ]
(

In Ratclijfe v. Barnard, 6 L. it. Neve, L. Cas. Eq. vol. ii. Ch. App. 052, an equitable mortgagee with whom some of the titledeeds of the mortgaged property, including the conveyance to the mortgagor, were deposited, tiled a bill to establish his priority over a subsequent legal mortgagee whose solicitor had omitted to examine a parcel which was given to him previously to the execution of the mortgage deed, and purported to contain all the title-deeds, but contained only the earlier deeds. It was held by Sir W. M. James, L. J., that there was not such wilful negligence on the part of the solicitor as to lix the legal mortgagee with constructive notice of the prior charge, so as to entitle the equitable mortgagee to enforce in equity his priority over the legal mortgagee. It is, moreover, inconsistent with the policy of the Irish Registration Law, to impose on a mortgagee, or purchaser, the duty of inquiring, with a view to the discovery of previous unregistered interests, but quite consistent with it, if he knows of the existence of those interests, to estop him from contending that, as to him, they are void merely because they are unregistered: Agra Bank Lint i led v. Barry, 7 L. B. Ho. Lo. 135. Where a legal mortgagee, by his negligen< in giving up the title-deeds, enables the mortgagor to commit a l.^ud by depositing them, so as to create an equitable mortgage, the legal mortgagee will be postponed to such equitable mortgagee if he had no notice See Briggs v. Jones, 10 L. R. Eq. 92: there of the legal mortgage. the plaintiff, a mortgagee of leasehold property, lent the lease to the mortgagor, for the purpose of raising money upon it, but at the same time told the mortgagor to inform the person from whom he proposed to borrow the money, that the plaintiff had a prior The mortgagor borrowed money from bis bankers, upon charge. the security of a deposit of the lease, without giving them notice It was held by Lord Romilly, M. It., of the plaintiff's inortgage. that the plaintiff's mortgage ought to be postponed to that of the bankers. See also M'llrury v. Davies, 10 L. R. Eq. 88; PerryHerrick v. Atwood, 25 Beav. 205; 2 De G. & Jo. 21. And the result is the same, where, although the legal mortgagee is innocent, a fraudulent deposit has been made by his agent, whom. by the trust he placed in him, he enabled to commit a fraud: Hunter 1 L. R. Eq. 292; 7 L. R. Ch. App. 75. v.' Walters,
1

2-17

* 797

KUSSEL

V.

KUSSEL.

a third mortgagee without notice of the first, will obtain priorty over him where he he has been diligent in ascer* 796 ] taining that the title deeds are in posession Cr of: a srcond,

And

apparently as
124.

first

mortgagee: Clarke

v.

Palmer, 21 Ch. D.

Upon

the same principal an equitable mortgage, by deposits of

vendor who conveyed the estate without receiving his purchase money when the receipt for it is indorsed on the conveyance, which is with the other title-deeds delivered to the purchaser; because the equity of the mortgagee, being better than that of the vendor, who by his negligence enabled the purchaser to deal with the estate, ought to prevail over mere priority in point of time. See Rice v. Rice, 2 Drew. 73, and the authorities cited in Vice-Chancellor Kindersleij s elaborate judgment. See also ante, p. 389. As a general rile, where there are two or more equitable mortgagees, they will rank according to their priorities in point of date; according to the maxim qui prior est tempore, potior est jure : Roberts v. Croft, 24 Beav. 223; 2 De G. & Jo. 1; Dixon v. Mnckleston, 8 L. R. Ch. App. 155. A fortiori, where the equitable mortgagee, prior in point of date, has got a deposit of the instrument of title. Thus where A., being
title-deeds, is entitled to preference over the lien of a

Tramways Union Company, deposited the with B., and gave him a transfer thereof in blank. Subsequently being indebted to the plaintiffs, he gave them a blank transfer of the same shares. It was held by the Court of Appeal, reversing the decision of the Court of Queen's Bench, that the executors of B., who had died, had the better title in equity to the shares. Socie'te' GSne'rale de Paris v. Tramways Union Company, W. H. 27 Dec. 1884, p. 249; 14.Q. B. D. 424. The same rule as to priorities between equitablo mortgagees by deposit applies when part of the deeds havo been deposited with one person and part with another. See Roberts v. Croft, 24 Beav. 223; 2 De G. & Jo. 1; Dixon v. Muckleston, 8 L. R. Ch. App. 155. "Where, however, an equitable mortgagee, either by neglecting to get (Layard v. Maud, 4 L. R. Eq. 397), or by giving up (Waldron v. Slojier, 1 Drew, 193) tho title-deeds by fraud or gross and wilful negligence, enables another to create a subsequent equitable mortgage, ho may be postponed to such subsequent equitable mortgagee. Waldron v. Sloper, 1 Drew, 1 93 see Adsetts v. Hives, 33 Beav. 62. An -equitable mortgagee, who advanced his money bond fide, may protect his equitable estate and gain priority, by obtainingthe legal estate from his debtor, even in contemplation of his bankruptcy: Hiern v. Mill, 13 Ves. 122; see also Baynard v. Woolley, 20 Beav. 583; and see note to Marsh v. Lee, anto, p. 701. * 797] *But where several successive equitable mortgagees have [ advanced their money with notice of a first mortgage, none of them by taking a transfer of the first mortgage can gain
entitled to shares in the
certificates thereof
;

248

RUSSEL

V.

RUSSEL.

798

priority over (ho other equitable mortgagees, who will rank in order of date: Pilkington v. Baker, W. N. 1877, p. 201. An equitable mortgagee by a deposit of title-deeds of lands in

Middlesex, if accompanied by a memorandum of deposit, is within the provision of the Registration Acts, 7 Anne, c. 20, and by earlier registration of the memorandum accompanying the deposit, even on the same day, will acquire priority over another equitable mortgagee
prior in date, bat subsequent in registration: Neve v. Pennell, 2 If. M. 170; Moore v. Culverhouse, '27 Beav. 639; In re Wight's Mortgage Trust, 16 L. R. Eq. 41; Credland v. Potter, 18 L. R. Eq. 350;

10 L. R. Oh. App. 8, overruling Wright v. Stanfield, 27 Beav. 8. We have seen beforo (pp. 783, 784, ante) that a mere deposit of deeds Without a memorandum cannot be registered in Middlesex. It has been held, in Ireland, overruling the case of 71/' Kinney v. Sprout", 6 I. R. Eq. 445, that a deposit of title deeds unaccompanied by any memorandum in writing, was outside the Registry Acts, and the fact that another man got a subsequent deed, and put it on the registry, did not give him a better equity under the Registry Act-. In re Burke's Estate, 9 L. R. I. 24; reversing S. C, 7 L. R. Ir. 57. See also Re DriscolVs Estate, 1 Ir. Rep. Eq. 285: Reilli/ v. Garnett, 7 Ir. Rep. Eq. 1 In re Stephen's Estate, 10 Ir. Rep. Eq. 282. But where in a registry county, a prior equitable mortgagee by deposit accompanied by a memorandum, neglects to register the memorandum, and, a fortiori, if he leave a great number of the deeds affecting the property in the hands of the mortgagor, he will be postponed to a subsequent equitable mortgagee who has got in the rest of the deeds. In re Lambert's Estate. 11 L. R. Ir. 531; 13 L. R. Ir. 235, 241; and see Agra Bank (Limited) v. Barry, 7 L. R. H.
;

L. 135.

Under the Yorkshire Registries Act, 1884 (47 & 48 Vict. c. 54), a charge by reason of any deposit of deeds may bo registered, and will not have any effect or priority as against any assurance for valuable consideration, which may be registered under the Act. unless and until a memorandum thereof has been registered in accordance with the provisions of this section. Sect. 7. This act was partially repealed and amended by 48 Vict. c. 4, and 48 and 49 Vict. c. 26.
Privileges

and remedies of

equitable mortgagee.']

A more

depos-

cannot be compelled to take a legal assignment so as to enable the lessor to sue him at law on the covenants *in the lease, nor is he liable to them until he has made [ *798] himself legal assignee (Moore v. Choat, 8 Sim. 508, and cases there cited: and Robinson v. Rosher, 1 Y. & C. C. C. 7; Moore v. Greg, 2 De G. & Sm. 304; 2 Ph. 717, overruling Lucas v. Comerford, 1 Ves. jnn. 235, and Flight v. Bentley, 7 Sim. 149):^nor will the case be altered by his having entered into possession of the premises and paid the rent: Moore v. Greg, 2 De G. & Sm. 304; 2 Ph. 717; Newry Railway Company v. Moss, 14 Beav. 69; Walters v. The
itary of a lease

249

* 799

RUSSEL

V.

RUSSEL.

Mac. & G. 629; Cox v. Northern Coal Mining Company, 5 De Bishop, 8 De G. Mac. & G. 815; Wright v. Pitt, 12 L. R. Eq. 408. In such case, however, though not liable for rents and covenants he would be liable in respect of his occupancy as tenant: 2 Bav. Conv. 121, 4th Ed. note. A proviso making void a lease upon an assignment does not apply to a mere deposit of it: Ex parte Cocks, 2 Deac. 14; Ex parte Sherman, Buck. 402; Ex parte Baglehole, 1 Rose, 432; Doe v. Hogg, 4 Dow. & R. 226; Doe v. Laming, Ry. & M. 36; M'Kayx. M'Nalfy, 4 L. R. Ir. 438. And upon a petition in bankruptcy by the equitable mortgagee by deposit merely of a lease granted to the bankrupt, his executors, administrators, and permissive assigns, with a covenant on the part of the lessee not to assign without licence of the lessors, the usual order for sale was made: Ex parte Drake, 1 Mont. D. & D. 539. A judgment registered in Ireland as a statutory mortgage does not merge with a prior equitable mortgage by deposit of title-deeds. Hence, although such sta-.+ory mortgage may have been avoided under section 331 of the Irish Bankrupt and Merchant Act, 1857 (20 & 21 Vict. c. 60), by reason of a petition having been filed within three months against the judgment debtor, under which he was adjudicated bankrupt, it has been held that the mortgage by deposit of deeds still remained a security unmerged as an equitable securIn re Estate of Assignees of Elliott, 8 I. R. Eq. 565. ity. "The realization of mortgage securities in bankruptcy (including equitable mortgages) is now regulated by 65-69 of the general rules made pursuant to section 127 of the Bankruptcy Act 1883 (46&47 Vict. c. 52) substituted for Rules 78, 81 of 1st January, 1870, under the Act of 1869, and Rules 55, 58 of the 19th of October, 1852, under the Act of 1849, which were substituted for Lord Loughborough'' Under these orders upon the aporder of the 8th of March, 1794. plication of the mortgagee, the Court of Bankruptcy after directing proper inquiries and accounts to be made or taken, may direct a
sale.

Before Lord Loughborough's * order the only remedy of an equitable mortgagee was by foreclosure in Chancery. An equitable mortgagee by deposit, may on the bankruptcy of the depositor seek relief either in the Court of Bankruptcy, or in Chancery. Ex parte Hirst, Re Wherly, 11 Ch. D. 2 78; White v. Simmons, 6 L. R. Ch. App. 555; Waddell v. Toleman, 9 Ch. D. 212. If he applies to the Court of Bankruptcy he will be entitled under the Bankruptcy rules to a sale (Rules 65-66 of the Rules of 1883), the proceeds of sale being applied first in payment of the costs, charges and expenses of the trustee, of and occasioned by the application to the Court, and of and attending such sale, and then in payment and satisfaction so far as the same shall extend of what shall be found due to such mortgagee for principal, interest, and costs, and the surplus of the said moneys (if any) shall then be paid to
[

* 799 ]

250

RUSSEL

V.

RUSSEL.

* 800

But in case tho moneys to arise from such sale shall the trustee. be insufficient to pay and satisfy what shall be so found due to such mortgagee, then ho shall be entitled to prove as a creditor for such deficiency, and receive dividends thereon rateably with the other creditors, but not so as to disturb any dividend then already declared, (Rule 07) with power to make inquiries (Rule OS) and to take accounts as in the Chancery Divisiou of the High Court. Rule 69. When an equitable mortgagee by deposit applies to the Co\irt of Bankruptcy to realize his security, the conduct of the sale is in the discretion of the Court. As a general rule where the security is sufficient the conduct of the sale will be given to tho trustee, but where the security is insufficient the conduct of the salo will bo given to the mortgagee; in either case the costs, charges, and expenses previously incurred, will be a first charge upon the proceeds of the sale: In re Jordan, Ex parte Harrison, 13 Q. B. D. 228. No order for a sale will be made if the deposit of deeds was made for improper purposes, as for instance to secure future costs to a solicitor (Ex parte Wake, 2 Deac. 352; 3 Mont. & A. 329), especially if made shortly before the bankruptcy (lb.), or if the money were advanced to a trustee with the knowledge that ho was about to commit a breach of trust, by applying it for his own purposes (Ex parte Turner, 9 Mod. 418); or when the bankruptcy closely followed upon the deposit so as to raise a presumption of fraudulent preEx parte Dewalney, 4 D. & C. 181; Ex parte Morgan, ference M. D. & De G. 11 G Ex parte Clouter, 3 M. D. & De G. 1ST Ex parte Wake, 2 Deac. 352; Ex parte Ainsicor'?. _ ~~ ,-ac. 503 sed vide; Ex parte Heathcote, 2 M. D. & De G. 741. In the case of a stalo demand, as where there was no memorandum, * the deposit of deeds had been made twelve [* 800 years before, and the bankrupt dead, the Court has refused to make the usual order for a sale (Ex parte Jones, 3 M. <i A. 152). but an inquiry has been directed as to the circumstances attending a doubtful deposit: Ex parte Clouter, 7 Jur. 135. In bankruptcy, an equitable mortgngee, except where ho has actually received the rents, (Ex parte Williams, 13 W. R. (Btcy. 504,) when he will not be required to refund (Sumpter v. Cooper, 2 B. & Ad. 223; (larry v. Sharratt. 10 B. & C. 710; Pope v. Biggs, 4 Man. &Ry. 198; 9 B. & C. 215) is entitled to them from the time only of the order for sale, which is considered equivalent to the appointment of a receiver; Ex parte Bignohl, 2 M. & A. 10; Ex parte Carlon, 3 M. & A. 328; 2 Deac. 333; Ex parte Thorpe, 3 Deac. 85; 3 M. & A. 441. Notice to the tenants to pay rent to the mortgagee does not alter the rule Ex parte Burn ft, 3 M. & A. 439; Ex parte Scott, 3 M. & A. 592. An equitable mortgagee is also entitled to tho growing crops on land in the mortgagor's occupation from the date of his application for a sale: Ex parte Bignold, 2 G. & J. 273, sed vide Ex parte
:

Alexander, lb. 275.

251

* 801

RUSSEL

V.

RUCSEL.

As to a sale in bankruptcy of property comprised in an equitable mortgage, see further Robson on Bankruptcy, oth Ed.; and see In re Jordan, Ex parte Harrison, 13 Q. B. D. 228. It seems to bo doubtful whether under sects. 65, 72, of the Bankruptcy Act, 1869, (since repealed) the Court of Bankruptcy could order a foreclosure where proceedings were in invitum, (Ex parte Fletcher, 9 Ch. D. 381; 10 Ch. D. 610; White v. Simmons, G L. K. Cb. App. 555) and the result seems to be the same with regard to bankruptcy jurisdiction in the County Courts under section 120 of the Bankruptcy Act, 1883 which is similar to sect. 72 of the Act of 1SG9; In re Jordan, Ex parte Harrison, 13 Q. B. D. 228. As, however, the jurisdiction of the London Court of Bankruptcy is now transferred to and is part of the High Court, it seems now to have the power of foreclosure in bankruptcy, if circiimstances should make it desirable to execute it. See sect. 93 of Bankruptcy Act, 1883; Fish. Mortg. 493, 4th Ed. If an equitable mortgagee by deposit applies to the Chancery Division, he may at the discretion of the Court, in a foreclosure suit under sect. 25 of the Conveyancing and Law of Property Act, 1881, (44 & 45 Vict. c. 41), substituted for sect. 48 of 15 & 16 Vict, c. 86, which it repeals, obtain an order of sale from the Court. See Fish. Mortg. 479, 4th Ed. Independently of its statutory jurisdiction, upon the de[*801] positee of deeds taking proceedings in * the Chancery Division, he will be entitled to a decree for foreclosure, and an absolute conveyance, but not for a sale (James v. James, 16 L. R. Eq. 153; 2 Seton, Dec. 112G, 4th Ed.; Pryce v. Bury, 2 Drew. 11; 16 L. K. Eq. 153 n.); whether there is a memorandum of deposit or not: (Backhouse v. Charlton, 3 Ch. D. 444); and he will be entitled to a declaration that his deposit operated as a mortgage, and that in default of payment of what may be found due, the mortgagor is a trustee of. the legal estate for him; and then the decree goes on to order the mortgagor to convey the estate to him (Marshall v. Shrewsbury, 10 L. R. Ch. App. 254 and six months will be allowed for redemption: Parker v. Housefield, 2 My. & K. 419; Metier v. Woods, 1 Kee. 16. Foreclosure and not sale is the remedy of an equitable mortgagee

v. Forster, 2"L. R. Eq. 467. As to tho form of decree in a foreclosure action in the case of an equitable mortgage by deposit: see 2 Seton on Decrees, p. 1126, Form 4, 4th Ed.; Lees v. Fisher, 22 Ch. D. 283. An equitable mortgagee by deposit of deeds, if accompanied by an agreement to execute a legal mortgage, is entitled to either sale or foreclosure: York Union Banking Company v. Artley, 11 Ch. D. 205; and see Woof v. Barron, 2 Seton, Dec. 1128, 4th Ed. A learned author has recently questioned the authority of Pryce v. Bury, (16 L. R. Eq. 153, n), and observes, "that it does not ap-

bv deposit of a share in a mining company: Redmayne

252

RUSSEL
pear

V.

RUSSEL.

* 802

that, any authorities were cited, nor was the question argued, and that the report can hardly be considered as an authority for overruling decisions by Lord Thurlow, Sir ./. J jack, Lord Cottenham, and other judges, that mere depositees are entitled to sale (Meux v. Feme; Springy. Allen, 2 M. & K. 422, cited; Russel v. Mussel, 1 Bio. C. C. 269; Pain v. Smith, 2 M. & K. 417; Tipping v. Hare, 405; King v. Leach, 2 Hare, 57; and see 3 M. & C. Power, Especially as a deposit of deeds by way of security implies 161). a contract for a mortgage (Parker v. Housefield, 2 M & K. 419,) which now implies a power of sale." Fish. Mort. 481, 4th Ed. And certainly the proper remedy is by sale where the security is scanty ( Wiseman v. Carbonell, 1 Eq. Ca. Ab. 212; Dashivood v. Bithazey, Mos. 190); or where the mortgagee after the mortgagor's death commences an action alleging a deficiency of the personal
1

Daniel v. Skipwith, 2 Bro. C. C. 154. jurisdiction of tho Court to order a sale instead of foreclosure in the case of a mortgage by deposit of title deeds has been enlarged by the Conveyanciug and *Law of Prop- [ *802 ]
estate:

The

erty Act, 1881

(44

&

45

Vict.

c.

41), sect. 25.

Thus

in,

Wilson, 22 Ch. D. 235; when at a trial of a foreclosure action, in which the plaintiffs, who were mortgagees by simple deposit of deeds, asked for a sale of the property, and tho mortgagor did not appear, the Court ordered an account of what was due to the plaintiff to be first taken, and then that so much of the property should be sold as would be sufficient to satisfy what was found duo to the plaintiff. And in a recent case upon motion by the plaintiff for judgment in default of appearance by an equitable mortgagor, by deposit of deeds unaccompanied by a memorandum of charge or an agreement to execute a legal mortgage, Kay, J. made an order for sale, and directed that it should be carried out by laying proposals before the Chief Clerk in Chambers: Oldham v. Stringer, W. N. Dec. 13, 1884, p. 235. The doctrine that an equitable mortgagee by deposit of titledeeds is entitled to foreclosure does not extend to a pledgee of perCarter v. Wake, 4 Ch. D. 605. sonal chattels. Although trustees may deposit deeds relating to charitable trust property, in order to secure money properly expended for tho purposes of the trust, the Court will not, it seems, decree a foreclosure or sale, because it would thereby destroy the trust altogether: Drake v. Williamson, 25 Beav. 622. A decree for foreclosure against an infant, notwithstanding it was enacted that the parol shall not demur (11 Geo. 4 & 1 Will. 4, c. 47, sects. 10 and 11), directs him to convey when he attained twenty- one, giving him a day to show cause against the decree Gordon, 19 Ves. 114; Newbury v. Marten, 15 Jur. ( Williamson v. 166; Pricey. Carver, 3 My. & Cr. 157; Mellor v. Porter, 25 Ch. D. 158); but a decree for sale against an infant will be immediate if

Wade

v.

253

* S03
it

RUSSEL

V.

RUSSEL.

appears that such sale will be beneficial, and no day will be given him: Red-thaw v. Neicbold, 12 Jur. 833; and see 2 Seton on Decrees, pp. 713, 714, 1114, 4th Ed. In a foreclosure action where the estate of the mortgagor was devised in trust for sale and had become vested in an infant, who was also one of the persons beneficially interested, it was held that the decree ought to contain a direction that, in case the mortgagees were not redeemed within six months, the infant should be a trustee for them within the meaning of the Trustee Act, and the executrix of the mortgagor be ordered to convey the estate to the mortgagees on Foster v. Parker, 8 Ch. D. 147. his behalf And it seems that the right of an infant to show cause has been taken away or affected by subsequent statutes, see Fish. And the Court may *make a vesting [ * 803 ] Mortg. 984, 4th Ed. order under sect. 1 of the Trustee Act, 3852 (15 & 16 Vict.
:

c.

55).

an order of foreclosure absolute, Sir J. Stuart, V.-C, refused to add a declaration under the Trustee Act, 1850, that the mortgagor being out of the jurisdiction is a trustee, in order to found upon it a subsequent application for a vesting order, his Honor observing, that " any such order, if made, must be made on a separate application:" Smith v. Boucher, 1 Sm. & G. 72. An equitable mortgagee may obtain a receiver (Curling v. Lord Leycester, 19 Ves. 633; Shakell v. Duke of Marlborough,' 4 Madd. 463; Anderson v. Kemshead, 16 Beav. 329); and he will be entitled to one on motion before the hearing, on showing the possession of deeds, which raises a prima facie presumption that the deposit was made for the purpose of securing an advance of money: Bodger v. Bodge-r, 11 W. Ii. (V.-C. K.) 160. And in an action by an equitable mortgagee for sale or foreclosure, the Court may grant an interim injunction to restrain dealing with the legal estate till the next motion day, on an ex parte application by the plaintiff if there be ground for believing that the defendant intends to part with the legal estate pendente lite: London and County Banking Co. v. Lewis, 21 Ch. D. 490; Spiller v. Spiller, 3 Swanst. 556; Hadley v. London Bank of Scotland, 3 De G. J. & S. 63. Under the Judicature Act, 1875, sect. 10, in insolvent estates an equitable mortgagee may come in and prove in an administration suit, and in the winding up of any company, on his whole debt, upon giving up his security, or he may prove for the deficiency if he does not give up his security. In cases, however, where the mortgagor died before the Act canif> into operation, it was held that the mortgagee was entitled, without prejudice to his security, to prove for and take a dividend upon the entire debt, so that he did not ultimately receive more than twenty shilling in the pound fromall sources: Rhodes v. Moxhay, 10 W. R. (V.-C. S.) 103.

On making

254

RUSSEL

V.

RUSSEL.

* S04

It has boon held in Ireland that an equitable mortgagee by deposit of a lease relating to lands there, where the lessee has been evicted for nonpayment :>f rent under the Irish Ejectment Act. migbi filea bill for redemption against the landlord: Geraghtyv. Malone,d D. & H. L. Cas. 81. War. 239; Where there has been a mere equitable mortgage of a policy of
I

assurance on the

company

life of the mortgagor, upon his death the assm-cfnco arc justified in refusing to pay the policy monies to the mortgagee save with the consent of the legal personal representative of the mortgagor (Crossley v. ( 'ityof Glasgow Life * Assurance Company, 4 Ch. D. 421; Webster v. British [*804]

Empire Mutual Life Assurance Company, 15 Ch. D. L69); and if there l>e none the mortgagee himself couldtake out administration to the deceased debtor (Webster v. British Empire Mutual Life Assurance Com pan y, 15 Ch. D. 177); he might however obtain an order for payment of the policy money by action in the Chancery Division, and in one case he was allowed to do so in the absence of the legal personal representative of the mortgagor {Crossley v. In a City <>f Glasgow Life Assurance Compay, 4 Ch. D. 421). subsequent case the Court of Appeal expressed surprise that such a decree should have been made in his absence; Webster v. British Empire Mutual Life Assurance Company, 15 Ch. D. 169, 180; sed vide Curtius v. Culedonian Fire and Life Insurance Company, 19
Ch. D. 534. And it has been held that in such cases where the default or delay in payment of the policy moneys was caused, not by the Company, but by the mortgagee's neglect to clothe himself with the legal title to tho money, interest will not commence to run till the order for payment of the principal has been made: Webster v. British Empire Mutual Life Assurance Company, 15 Ch. 1). 109; overruling on this point Crossly v. City of Glasgoiv Life Assurance Company, Ch. D. 421. An equitable mortgagee by deposit of deeds is not deprived of his right to recover his debt by his inability to produce either the deeds deposited or the memorandum of deposit, when the Court believes that there was such a deposit, and that the deeds have been really lost (Baskett v. Skeel, 11 W. R. (V.-C. W.) 1019); but he may lose his lien by voluntarily parting with the deeds: Be Driscoll, 1 I. R. Eq. 285. AVhere, moreover, an equitable mortgage by deposit of title-deeds has been made, accompanied by an instrument which, by mistake, has been drawn up in such a manner as to be illegal, as. for instance, void for usury, when the laws against usury were in force, tho Court, on being satisfied of the error, will reform the instrument so that effect, may be given to the equitable deposit. Hodgkinson v. Wyatt, 9 Beav. 5<>6. It may be here mentioned that where proceedings in bankruptcy had been suspended by resolutions under the 110th section of the
1

255

* 805

RUSSEL

V.

RUSSEL.
to

Bankruptcy Act, 1861, and there was nothing in the resolutions

preserve the jurisdiction of the Court of Bankruptcy, its jurisdiction to order a sale on the petition of an equitable mortgagee was gone: In re Carter, 1 L. R. Eq. 170.

tnuteo had been appointed under the.liquidation of the an equitable mortgagor, it w as held that the * 805 ] ''mortgagee might, instead of applying in bankruptcy, pro[ ceed in Chancery against the trustee for the purpose of having the security realised, the jurisdiction in Chancery not being taken away by the Bankruptcy Act, 1869: White v. Simmons, 6 L. R. Ch. App. 555; Ex parte Pannell, G Ch. D. 335; Waddell v. Toleman, 9 Ch. D. 212. And a second equitable mortgagee may commence an action against the liquidating trustee of the mortgagor, and the first mortgagees, claiming an equitable charge on the property, redemption against the second mortgagees, and if necessary foreclosure Ex parte Hirst, In re Wherly, 11 Ch. D. 278. But the trustee ought not to raise objections to the exercise of jurisdiction by the Court of Bankruptcy, if the mortgagee is willing to submit to it: Ex parte Fletcher, In re Hart, 9 Ch, D. 381. In a case of composition it was held that the Court of Bankruptcy had no jurisdiction to make an order for sale at the instance of an equitable mortgagee of the estate of the debtor: Ex parte Manchester and Liverpool District Banking Company, In re Littler, 18 L. R. Eq. 249.
a
affairs of
r
:

Where

\_Doctrine of Equitable Mortgages by stated.\n addition to the regular and are other securities which equity holds and which partake in a measure, of

Deposits of Title Deeds Reordinary mortgages, there to be valid encumbrances, the nature of mortgages. Amongst these are mortgages created by deposit of title-deeds. They are in the nature of a lien and do not cause the creation of an independent equitable title. The essentials of this kind of a mortgage is, that the deeds be delivered to the creditor, and that the delivery be by way of pledge and not diverse intuiti. The effect is that the debtor cannot get back his title deeds, until the money has been repaid. The Statute of the Frauds says that no interest in the land shall be created otherwise than by writing, but it has been held that the fact of the deeds, being delivered, raises an implication of law that they were to be effectuated by a mortgage. Lord Eldon said that this doctrine was one which was established by precedent, but said that it ought never to have been so established.

The further effect of a mortgage by deposit, is that the mortgagee has an equitable charge on the land, and while his mortgage specifies no day for payment his proper remedy is by foreclosure^

250

GARTH

V.

COTTON.

* 807

GARTH v.

SIR

JOHN HIND COTTON.

August
10th, 1750.

* 80G

July, 1750.

[reported 1 ves. 524, 54G; 1 dick. 183.]

[S. C. 3 Atk.

751; Reg. Lib. 1752, A.,fol. 240.]

Equitable Waste.]
so long
live,

A., tenant for ninety-nine years, if he should without impeachment of waste, voluntary waste ex-

cepted ; remainder to trustees during his life, to preserve contingent remainders ; remainder to his first and other sons in tail ; remainder to B. in fee. A. (before a son born) and B., according to agreement, cut down timber, and divided the profits between them.

A. afterwards had a son, who was held entitled

the representatives of B. ivhat he
the

to recover

from

money

arising from

so received as his share of the sale of the timber.

trustees to preserve contingent remain-

had

Rights, poivers,
ders.

and duties of

Mr. Garth
live,

(u),

tenant for ninety-nine years,

ivaste,
life, to

without impeachment of mainder to trustees during his

if he should so loDg excepting voluntary waste; re-

preserve contingent remainders;

tail;

remainder to his

first

and every other son in

remainder to the

defendant, Sir John

Hind

Cotton, in

fee.

Garth having been long married without having children, enters

into an agreement with the defendant, Sir

cut

down timber on when

He

John Hind Cotton, to the estate, and divide the profits between them. has afterwards a son by another wife, who, after his father's
of age,

death,

to oblige the dofendant, Sir

and having suffered a recovery, brings this bill John Hind Cotton, to refund 3 000Z. re-

ceived by him as his share of the timber with interest.

money

arising from sale of the

* For the Plaintiff.There is no particular precedent exactly a s the case stands; therefore it must depend on
()

[*807]

The statement of the case and arguments * 17 WHITE ON EQUITY.

are taken from

Ves. 524.

257

* SOS

GARTH

V.

COTTON.

general principles.
cut timber; and
if

The question
not,

is,

whether they had a right to

plaintiff

whether the

thereby

is

injured,

which is necessary for the plaintiff to show, and that the defendant, at the time of doing it, was wilfully guilty of an injury to the
plaintiff that
is,

the unborn children of Garth;

for, if

this is a

damage without an injury, the Court will not give satisfaction. The trustees were to preserve the contingent uses of everything
was this method of preby inserting trustees: has been since exBridgman) Lord by invented be (said to which joined, the Court would trustees If equity. of Court a tended by conveyancers some was by breach. It for a liable them make came first in which could bar, joining trustees the whether doubted
that

was

settled.

To avoid

a perpetuity

serving estates in

families a certain time

Pye

(v), where Lord Harcourt said, that destroying conwas a wrong, and that he would make a preceremainders tingent That precedent was afterwards solemnly none. was there dent if
v.

George

made

v. Mansell (w), where a Court of equity went holding a purchaser to be a trustee for a continever, than further one doing it with notice is affected with Every remainderman. gent is got into such hands as not to be folestate if the and trust; the

in Mansell

lowed
breach.

in equity, the

estate is

Court would make the trustees liable for the on inheritances of land: a tree growing on the as much a part of the inheritance as a house or the land;

Thus

it is

and, as to the person interested, selling the timber destruction of his inheritance as selling the land.

is

as much to the Though there is

no remedy at law, the trustees might have complained in equity that they were to preserve the contingent remainders, which might be in esse perhaps in a year, and that the Court should not suffer
the present tenant for
life to be guilty of that permissive waste, because it is a prejudice to one who may be in esse, and was * intended by the donor to have that which is in esse. Though there is no precedent for this, yet in many cases

[*808]
will the
If,

then, the Court

Court prohibit waste, though no action of waste lies. would do so, as being a wrong, the trustees
it,

neglecting their duty, or not knowing

will not alter the case so

as to prevent that satisfaction consequential to an injury. Chancellor Hardicicke. I know no case where the trustees

[Lord might
if

bring such
{v)
(ic)

bill,

though I have heard

it

said they might: and

this
ed.

2 Salk. 680; Prec. Ch. :;08; 1 P. Wms. 128; 7 Bro. P. C. 221, 2 P. Wms. 678; Ca. t. Talb. 252.

Toml

258

GARTn
is

V.

COTTON.

* 809

it might be so in case of a purchaser.] In would be contrary to common justice if the trustees might not bring such a bill; for then a man might immediately destroy the settlement he had made. Several injunctions have been granted where no action of waste could be, as in case of an intermediate estate for life: Moo. 554; whore, it appears he in remainder could have an injunction so long ago as the time of Itichard II., for waste by the first teuant for life, as being an injury to his inheritance, taking away part of the value thereof. It is also an in-

so in case of a donee,
it

case of a purchaser,

jury to the intermediate remainderman for

benefit of the shade; so that,

life,

as

it

takes

away the

on a

bill

by

either, the

Court would

interpose,
injury.

and not
this

Had

say, you may bring trover, but would prevent the been the case of an infant in ventre sa mere, en-

titled to the inheritance, undoubtedly a bill would lie, though he cannot bring an action, ejectment or trover, notwithstanding he may
is no have the same equity as one who has a being of a month if it may be so called. In Abrahal v. Bubb, 2 Sho. 69 (x), (though a book of no
v.

be vouched: Musgrave

Parry, 2 Vern. 710.

Then

there

reason but that a person

who may come

in es3e should

authority), is cited a case called

Lady

Evelin's, not reported in print,

it

but in Lord Nottingham's manuscript; where tenant for life, remainder to the first son for

was

said, that

where

life

without impeach-

ment
life,

of waste, remainder over, the first son, by leave of tenant for comes on the land, and sells the trees, he was enjoined in this Court by Lord * Nottingham; though there could [ * S09 ] be no action at law. A bill may bo brought by the patron

incumbent from cutting down timber; though the interest the patron has is very little, nor any remedy in point of law, as he cannot enter, or seize the timber: but from his remote interest in the thing in possession, the Court will relieve, because the law does not effectually, and will not say that you may go to the bishop. In Fleming v. Fleming, July 19, 1744, Bishop
of a living to prevent the

of Carlisle's case (y), tenant for ninety- nine years, if he so long live; remainder to trustees to support contingent remainders; remainder to another for ninety-nine years, if he so long live, without impeachment of waste; remainder to his sons successively in tail male, remainders over; both tenants for ninety-nine years,

thinking they had an interest together to cut down, because the

(x) S.
(y)

Fleming

C, 2 Freem. 53. v. Bishop of

Carlisle, cited 1 Dick. 209.

259

* 810

GARTH
if

V.

COTTON.

second had a right to do so

in possession, agreed to sell the

timber, and divide the profit, as here.

On

motion for injunction

your Lordship granted

as

holding that there was no remedy at law, and that the privilege of without impeachment must be considered
it,

son

annexed to the estate when it comes into possession. In Robinv. Litton (z), 12th December, 1744, the testator devised an estate to his eldest son and his heirs; and if he should not live to attain twenty-one, leaving no issue, devised it to his eldest daughter and the heirs of her body: remainder to his two other daughters successively in tail. The children were all infants. The son, within

two years of twenty-one, petitioned to cut down timber, being, for his benefit, as owner of the inheritance, though subject to that contingent interest to h,is sisters. Your Lordship refused it, but left him to do what he could according to law. Upon that the parties agreed, that some small timber should be cut down, and then a bill should be brought by the daughters upon their contingent interest to prevent the waste, which was done; and, though that was a remote and improbable contingency, the Court thought the felling of the timber should be stayed; not that the defendant could not do it in a point of law, for he had an estate of inheritance, and [*810] every such estate carries a right* to cut timber: yet did the Court restrain him, and said, that if an estate descended tG an heir-at-law where an executory devise was depending, that heir, notwithstanding he would have the legal estate of inheritance in the meantime, till the contingency happens, shall not be suffered, for
the sake of those persons

the meantime.
sion,

time.

who may come to be interested, to fell in But the defendant is not tenant in tail in possesand therefore could not do it, though no son was born at the It was not a remote contingency; and it was determined, in
(a), that, if a

Lewis Bowles's Case

If,

son

is

born, the estate shall open-

might have been that preventive remedy by injunction, there ought to be this compensating remedy, supposing the act done. But it may be said, though fieri non debuit factum valet; for that, by the severing the property, it vested in the defendant as tenant in fee. If severed by act of God, as in the Case of Welbeck Park (6), where timber was blown down on the Duke of Newcastle's estate it would be so from the rule of law, which says, that a tree
then, there
(z)

la)
(b)

3 Atk. 209. 11 Co. 79, Lead. Cas. Real Prop. 37, 3rd. ed. Duke of Newcastle v. Vane, cited 2 P. Wms. 241.

260

GARTH

V.

COTTON.

* 811

lying on the ground shall not be held in abeyance, but go to the first owner of the inheritance, who might maintain trover for it

knowingly contrive the injury. power and the interest of tenant for life to bargain with a remainder-man, though ever so remote, by giving him something ho could not be entitled to at all, which would en-

But

this is not so severed, for they

it

If allowed,

will be in the

courage these collusive agreements (c). So, one made tenant for life on his marriage, reversion to himself in fee, being entitled to

There is no acall windfalls, might immediately strip the estate. quiescence or length of time here, which might amount to waiver of right, or afford presumption of evidence in doubtful cases; but
the plaintiff was not born until ten years after, not being of age, till There is no difficulty on defendant, 1745, and pursued it recently.
in point of evidence,

from length of time; but

till

if

there was, he

must

have seen

it

could not have arisen

at a distance.

For

the Defendant.

This

is

new case;
is it

not well founded on law, so neither

and, as admitted inequity. * De-

*811

fendant, on application by plaintiff's father, agreed, provided reasonable satisfaction was made to him, not to take the ad-

vantage -of felling the timber, which he might.

The

bill,

then, is

not proper against him, without the representative of the father. At law no writ of prohibition or action of waste lay against tenant
for life or years, as the parties

must provide
otherwise.

for that: since the

Statute of Gloucester, indeed,

the defendant be responsible?

it is

But

to

whom

could

Not to the plaintiff, had he been born: for, in point of law, if he was a stranger (as a remainder-man in fee is, as to privity between him and tenant in tail), he was liable only to the lessee for life or years, who was responsible only to the person having a right to bring the action of waste; and remedy
was left over against the stranger, against whom tho action of waste could not be brought, as held by Lord Coke. Next, this is a personal tort, which dies with the party who alone was liable: then it

would be extraordinary,
liable to the

if

the representative of the party commit-

ting waste should not bo liable, that the defendant

(who was never

person

who

could bring the action, nor even to the

admitted, that

lessee for life or years, if living, as the waste

should

was with his consent) if blown down, or cut without concurrence of defendant, he would be entitled

now account

for that waste.

It is

to the benefit of the whole: how, then,

(c)

is it

the act of the defend-

Lee

v.

Alston, 1 Bro. C. C. 196.

261

* 812
ant
?

GARTH

V.

COTTON.

It is singly the act of the lessee for life.

Suppose the lessee

had given the defendant

it:

so

much money

not to take the benefit of

he might have done it for a consideration, or for none at all; for why may not one renounce a right ? And this amounts to the same. Though this Court will interpose to prevent waste, yet never where
the estate has ceased in the person committing it.
v.

In Jesus College

a new lease to Nov. 19, 1745, the plaintiffs had cut former lessee another; and, discovering afterwards that the for against him down timber and committed waste, brought a bill

Bloome

(d),

had made

an account

Your Lordship dismissed it; for that where a lease determined, and possession was quitted, the Court * 812 ] will not decree an * account; though where the lease con[ tinues, it would decree an account of waste, as incidental As to that jurisdiction, the Court has to prohibit and enjoin it. might who defendant, soon as severed, the property belonged to the
thereof.

have seized
certainly

it,

or brought an action without seizing; for the father

a special interest in the trees,

had no other property than

while they continued annexed.

[Lord Chancellor Hardwicke. Suppose the trustees had been vigilant, and brought a bill to stay this waste, and prayed an account of the timber so felled under this
agreement; I think that would be a proper bill; and, if the Court had made a decree, there would be an injunction to stay the waste; and, incident to that, the Court may decree an account of the waste
already committed: what would the Court have directed to be done The money even by with the money raised with the timber sold?]

Udal v. Udal, the aid of this Court, would be decreed to defendant. cutting vests very the that Aleyn, 81, and several other cases, shew,
the property in the

owner of the inheritance. If there had been an intermediate vested remainder for life, it would make no difference; for the defendant might then have seized or brought
first

trover,

though not an action of waste; and, after the death of the intermediate tenant might have brought icaste for the waste in the But it has never been determined, that the inlife of that tenant. termediate estate of the trustees should bar the remainder-man in fee from an action of waste or take away a legal right; which it is admitted that would not do, if they were blown down. This estate
in trustees took rise on political considerations, in the time of the civil

wars, to prevent any act wrongfully done to put a period to the estate; and, being created to one particular purpose, should not be
(d)

3 Atk. 262

Amb.

54.

262

GARTH

V.

COTTON.

* 813

wrested to another, or take away a remedy given to the owner If the remainder-man in fee, of the inheritance by the statute. wasted, the remainderthe place recovers waste, of action by

man coming

into esse cannot recover this estate vested: as held in

the Case of Lincoln College. This Court will indeed, under particular circumstance, at the instance of trustees, * hearto complaints

* 813

by them; and has gone so far, in Manken sell v. Mansell(e), as to declare what its sentiments would be in But suppose case of a breach of trust where the trustees joined. they had joined, and been parties to these articles, they would not
have made the legal right of the parties in the timber, when cut But they did not join, nor file such bill to stay waste: different. and there is no instance where the Court ever interposed on their
omitting to
act.

If

by such omission a benefit accrued

it v.

to another,

the Court never interposes to take

the contrary, as in Partridge

away, there being instances to Paivlet, Hil. Vac. 1736 (/), before

your Lordship, where plaintiff's wife, tenant for life without impeachment of waste, being a sickly person, was going to cut down A bill was timber, to the produce of which she would be entitled.
filed

on behalf of her

sister to restrain her, for that the estate

was
But,

subject to debts in aid of the personalty, which would probably not

be sufficient for that.

The Court granted the

injunction.

there being no deficiency in the personalty, a question arose, after the wife's death, between her husband and administrator and the sister,
at whose instance the injunction was obtained upon an untrue suggestion,whether the estate should be put into the same condition as The Court expressed an inif no such injunction had been granted.

clination to

do so, if it could; but though it was a very hard case, and a misfortune happening by act of the Court taking away a power annexed to a tenant for life, yet, as an interest was by that means attached in a third person, the Court did not think itself Then much less will the empowered to take away that right. Court, where by the non-opposition of the trustees, a benefit accrues to a third person.
reported.
It

Whitfield
if
is

v.

Beivit (g) is a little defectively

seems there, as

there were trustees to preserve, &c.

a direct authority.

and,

if

there were, that case

Lord Chancellor Hardwicke.

cable to the present case.
(c)

Partridge
v.

v.

Pawlet

is

not appli-

2 P.

Wms. 67a
Bewick
Whitfield,

(/)
:S

Atk. 4G7.
:.'<;7

(g)

2 P. Wins. 240; sec also

P.

Wms.

* 815

GARTH
This
is

V.

COTTON.

of the first impression

of

great consequence

814

and importance

in point of precedent: therefore I will

it.

take time to consider of

Lord Chancellor Hardwicke(/i).

of breaking in

Although I have taken a great

a deal of pains, I cannot yet form an opinion, from an apprehension

upon the

rules of law, or establishing a dangerous

The case is admitted to be entirely The strength of the arguments for the plaintiff is on the authority of Pye v. George (i) and Mansell v. Mansell (k), where the
precedent in a court of equity.

new.

Court has considered trustees to preserve contingent remainders

as trustees to all other purposes^ so as to be affected
trust

by breach of
it

and

all

the consequences: and therefore,

bill to

if

they have been

negligent in not bringing a

restrain the waste,

should not

turn to the prejudice of the remainders,

timber, because their legal estate

when

in esse.

But

it

de-

serves to be considered, whether they have any trust to preserve the

is

not at

all for

that purpose, be-

ing only an estate pour autre vie; by which there

or

power over the timber, and which

tenant for
life dies.

first

It is said,

is no interest in an end as soon as the they might bring a bill for an is

at

injunction to stay waste, before the contingent remainders vested

and I am of that opinion; but I do not know that arises out of their trust for the timber. It is a bill by amicus curiae; as in a bill on behalf of an infant in ventre sa mere, to stay waste. Till the estate attaches in possession they have nothing to do with the timber.
If,

indeed, there

is

a forfeiture for the first tenant for

life,

they

would have a right to the shade, &c, but nothing to do with it during the life of the tenant for life. This is no opinion, but only my doubts from the breaking in on the rules of law on the one hand, and on the other the laying down a precedent in equity which might be dangerous. Let it therefore, be spoke to again next term. I can find no case where the Court has preserved the timber, though cut down by wrong, for the benefit of the contingent re* mainders. In Whitfield v. * Bewit (I) it was not by acci815] [ dent,but by wrong; and though Peere Williams has not mentioned whether there were trustees to preserve &c, I have looked into it, and find there were.
(h)
(i)

(k)
(l)

10 August, 1750. The judgment is taken from 1 Ves. 546. 2 Salk. 680. 2 P. Wins. 678; sed vide Birch-Wolfe v. Birch, L. R. Eq. 6S9. 2 P. Wms. 640.

264

GARTH

V.

COTTON.

* 816

Michaelmas Term, 1750, it "was argued again. For the plaintiff. The bill is against the defendant only so far as ho has been benefited himself by agreeing to this aft, which is a

detriment to the plaintiff's inheritance.

The
first,

case

is

new

in specie,

but the Court will go on the general principles of law and equity.

whether on applicawould have restrained them both the tenant for ninety-nine years from cutting by licence of the remainderman, and the remainderman from coming upon the estate by licence of the tenant; next, if so, whether satisfaction ought not to be decreed for that act, when done, which the Court would have prevented, as against conscience. As to tho first. To shew that the Court would have done so, it
points:
tion by the trustees at the time of tho agreement, the Court

The whole merits depend on two

is

necessary to state the notion of justice established as to preservsevered from the inheritance, and which yet are part of

ing timber, houses, mines, and other things, capable of being, in

fact,
it

in

notion of law, and considered as annexed. There are but four cases
in

tire.

which a court of equity interposes to preserve an inheritance enFirst, where there is no legal remedy whatever that extends so far as to answer the intent of the settlement under which all claim, and from which intent it is clear that what is doing is wrong.
This holds were tenant in
ant in
tail

tail

apres possibility, &c.

(I),

or wife ten-

ex provisione

viri,

goes to pull

down

houses, or

commit

destruction.
this
v.

No
1

action of waste or of property can be brought, yet

Court

will enjoin:

Abrahal

v.

Bubb, 9 Sho. 09 (m), and Cooke

is

Whaley,

Eq. Ca. Ab. 400; because the mansion-house

settled

and this tenant in tail apres, &c. is but tenant for life, who could not do it, though he was so, without impeachment * of waste. This is the most ancient juris- [ * 81G] in the time of Richard II. (Moor, 554), diction of equity and several precedents in Henry VIII. and Edward VI. but since the Case of Raby Castle (n) it is established. There was tenant, without impeachment of waste (which since Leivis Boicles's case (o), gives leave to commit waste) yet would not this Court suffer it because contrary to the form of the settlement, though there was no legal remedy. On the same principle have been cases as to an
as well as the rest;

After possibility of issue extinct. (m) 2 Eq. Ab. 757; 2 Freem. 51$; 2 Swanst. 272, n. () Vane i\ Lord Barnard, Prec. Ch. 454; Gilb. Eq. Eep. 127; 1 Eq. 399; 1 Sulk. KM; 2 Vera. 738. {o) 11 Co. 79.
(/)

Ab.

265

* 817

GARTH

V.

COTTON.

avenue in a park for ornament or shelter. Secondly, where there is a temporary impediment to the remedy at law, so that the act is at the time dispunishable, equity interposes as, where there is an interme;

diate tenant for

life,

the remainderman of inheritance cannot bring an

first

action for waste

by the

tenant for

life,

for the s^ke of the pre-

It is not servation of the innocent remainder for life: 2 Inst. 301. destroyed would not be and it years, remainder for so if it was a bv the action. But a stronger case is of an estate for life, remainder for life, without impeachment of waste, and with a power to

commit waste: both agree

able at law, yet this

to

commit waste, and though dispunish-

Court would enjoin, on the principal that it the inheritance, although it was a bare contingency injury to was an would be a prejudice to the owner of the inheritance or whether it Evelinas case (p): so in Fleming v. Fleming, Lady which was not:

though no remedy
in equity only,
is,

at law.

The

third case where there

is

remedy

where a person, who may be consequentially infrom the weakness of his estate, has no remedy waste, jured by the tenant for life: remainder for life, with or as where all law: at at on the bill of rewaste: remainders over, of impeachment without mainderman for life, the Court would restrain the first tenant for life from committing waste: Dayrellv. Champness (q). If guardian of infant tenant in tail cuts down the whole timber, the Court will not, on application of the remainderman, enjoin; which was Saville v. Saville (r), although the infant there was very ill and did die before he came of age: but if done in such a way as to be * of the infant himself, on the application * 817 [ ] to the prejudice of the infant, the Court will judge what is for his benefit. The fourth, and most material to the present case, is where new limitations are introduced and allowed by law and courts of justice, since the time that all the doctrine about waste was settled. Since the Statute of Gloucester (6 Edw. 1, c. 6), courts of law cannot adapt their remedy to a new purpose: then the Court interposes on the foundation of justice, and on the principal, that, this new sort of limitation being introduced, it must be protected in all Exits consequences, because the limitation itself the law allows. ecutory devises and springing uses existed not before the time of King Henry VIII. Then none of the rules at law concerning waste can be applied to them; and any man, having a fee subject to be

(p)
[q\
(r)

Cited 2 Freem. 55. Eq. Ab. 400. Saville's case Mos. 224; cited Ca.
1

t.

Talb. 1G.

2GG

GARTH

V.

COTTON.

818

defeated on a contingency, may, in point of law, pull down houses and cut down all the timber: no legal remedy, as action of waste
or trover for the timber,
lies,

nor a prohibition; but in equity there

In Robinson v. Litton (), the inheritance being given is a remedy. over to the daughters on a contingency, your Lordship thought the intent was that the whole and every part of the inheritance should be preserved to wait that contingency, and that a bill may be brought
for infant in ventre to stay waste, the statute of

King

AYilliain

(t)

having declared him capable

after his birth can

of taking

tnat

is,

preserved a con-

tingent remainder to him; yet that infant bas no legal remedy, nor

he bring trover. This Court then interposes, beWhen the legal remedy about waste was does not. law cause the was known in the law as a contingent rething such no established, destroyed by the tenant for life and not be might which mainder Ik was of no value at all: and then inheritance. of the owner first

why should
tation,

part be preserved?
v.

which was the

and
1

ground of the de(v).

termination in Udal

Udal

(u),

Rol. Ab. 119

This

limi-

being for years, could not then exist at all, as there must to support the contingent remainders; but it is now freehold be a allowed being introduced at the time of the troubles, about 1G40,

by Sir Geoffrey Palmer, who invented it for preservation * of contingent remainders; but no legal remedy is adapted [ * 818 ] The Court, then, will act on the same principles as to it. in executory devises, which are very like this, being a limitation to "Where, indeed, there are no trustees to arise on a contingency.
preserve,

&c,

this

against tenant for

Court would not grant an injunction to stay waste life, and first owner of the inheritance, who, by

the rule of law, may, notwithstanding the contingent remainders, do what they will with the whole estate, and then may with part of
But, now it; this Court not relieving against a general rule of law such trustees are allowed and approved of, they must execute this
7
.

trust according to the different

remedy the constitution

if

allows, to

preserve every part of

particular estate
is

it:

so that,

tenant for

life levies a fine, his

forfeited; they shall enter, but

though they do

not, their right of entry shall preserve all the contingent remain-

ders.

If

he

fells

timber, there
it is

is

no remedy

ply to this Court; and

(s)
(t)
(?e)

established, that,

at law; they must apon an executory devise,

[v)

3 Atk. 209. 10 & 11 Will. 3, c. 16. Aleyn. 81. Uvedale o. Uvedale.

267

* 819
this

GARTH

V.

COTTON.
entitled

Court will interpose.

But they are more emphatically

to this here; for the very purpose for which they have an estate for life is to preserve the contingent estate afterwards to arise, this

Court considering it as an executory trust; so that if they had brought a bill, both would have been prevented, because both were

doing an injury the owner of the inheritance, in cutting down before it was his day, as in Lady Evelinas Case (w); and it would be of very extensive consequence if a Court of equity should not inA right without terpose, when there is no legal remedy adequate.
a remedy
ventre, of executory devises,

Court finds one, as in case of infant in and where there are temporary imbill by the trustees, the Court would not such If, on a pediments. given up. None but the trustees be must argument restrain, the may file a bill in the name of an any one though for, could apply;
is

a solecism

this

infant in ventre, considered as having existence in

many

cases,

it is

not so here; but the trustees,

who have

a foundation to

having a remainder themselves prejudiced by this

apply.
[

go upon, as act, can alone

* 819

If,

then, the trustees, through ignorance or neglect,

bill,

did not bring such

satisfaction

the second consideration arises,

ought not to be made now. Should this Court whether there is no adequate remedy, for it might then enjoin, only say, they Lord Barnard was not only restrained, but surprise. be done by and restore, on the principle that the satisfaction make obliged to him, and that complete justice could prohibited have Court would trees are cut down, specific satisfacWhere done. be not otherwise is only by way of compensation by then it decreed tion cannot be after it an account of the waste draws waste stay bill to damages. A
;

committed.
:

an attachment would the contempt to suffer would Court which the on the terms issue and making contempt, the of costs paying on would be be cleared is only a mean, commitment the for could be, as far satisfaction as
If the injunction is disobeyed,

and otherwise no one would value risking the contempt. It is a maxim, that neither infant nor person unborn can suffer by laches but the doctrine of a trustee, or of the person, who ought to act these trustees. of power the in their fate put would contended for it would take remainder, contingent destroying join in If trustees
;

effect at law,

but this Court would set

it

the hands

of a purchaser without notice,

(w).

up again, and, if it got into would make tenant for life,

Cited 2 Freem. 55.

268

GARTH

V.

COTTON.

820

and every ono who joined, make satisfaction. If indeed the trees were blown down, or cut by wrong or trespass, without permission of the owner of the inheritance, the property would, ex necessitate,
be the defendant's, as
it

cannot bo in abeyance, and the severance

v.

was without default

there would be nothing of which this Court

Whitfield could lay hold of against his conscience. 2 P. Wms. 240, is no authority in the present case.

Bewit, as in

On

searching
;

the register,

it

appears, indeed, that there were trustees

:

but the
for

Court did not go on that argument proceed on it.

this,

the objection was not takon, nor did the

If

no satisfaction can be obtained

timber

may be

destroyed and mines opened on every estate,

contrary to the intent of the makers of the settlement, and of every one entitled * under it, except the first owner of
the inheritance,

* 820

who may

destroy the whole, or work the

mines barely on consent of a common farmer for life, by collusion an action for the loppings with him, or ex vi if he does not agree and shade could be only brought by the tenant, which it would be worth while to pay on a wooded estate. There are few estates in England which are not let for years and the first owner of the inheritance (although his remainder is very remote) may, by joining with such tenant, strip the estate, for trespass or ivaste cannot be
; ;

brought against him. This argument, ab inconvenienti, is the As, therefore, the law allows strongest at law as well as equity. these contingent limitations to be made and preserved, and most
lands in the kingdom are so settled, and the intent of the parties is to preserve the timber as well as the rest, and as there is no legal

remedy, this Court will find one, which will not be adequate
isfaction is not

if sat-

made

after the act is

done.

This, therefore, is not a

one.

particular case, but a very general

and universal

Second argument for

cited Claxton
v. if

the

defendant. For the

Defendant was
v.

Claxton, 2 Vern. 152; Aspinwall

Leigh, 2 Vein.

218; and that,

ber, it

the parties were disabled from severing the timestate,

might be kept too long on the

and

rest in suspense for

several years, to the detriment of the public.

Lord Chancellor Hardwicke took further time to consider of it and Sir John Hind Cotton having died pending the suit, and the
cause revived against his representatives, his Lordship gave judg-

ment 5th February, 1753.

269

* 821

GARTH

V.

COTTON.

defendant

Lord Chancellor Hardwicke (x). The end of the bill is, that may account, and make satisfaction to the plaintiff, for all such sums of money as he hath received by a fall of timber upon

the estate in question, in the year 1714, with interest.

Richard Garth, Esq., being seised in Richard Bovey, father of the * plaintiff, for ninety-nine years, if he should so long live, without impeachment of was* e, voluntary waste excepted, on condition he and from and after the took upon himself the surname of Garth forfeiture or determination of that estate, to the use of trustees during
case
is this
:

The
by

* S21

] fee,

will devised to

the life

tates, but, nevertheless, to

of the said Richard Bovey in trust to preserve contingent espermit the said Richard Bovey, at and

after his full

and

profits thereof
tail

age of twenty-one years, to receive the rents, issues, during his life, with remainder to his first and
male.
in like

other sons in

After this there are remainders to Avery

Garth and his sons

manner

(all

the testator's death), with the ultimate remainder to Sir

which determined soon after John Hind

Cotton, the defendant's grandfather, in fee simple.

Of

this will the testator

made

Catherine, his wife, executrix.

his death the plaintiff's father entered upon the estate, and performed the condition of taking on himself the surname of Garth. Sir John Hind Cotton, the defendant's grandfather, died, where-

On On

the 18th July, 1700, the testator died.

his son

by the remainder in fee descended to the last Sir John Hind Cotton, and heir, and in whom the remainder of inheritance was become vested.

On

the 12th of February, 1713, the plaintiff's father executed a

Reginald Marriott authorising him to come to an agreement with Sir John Hind Cotton, the remainder-man in fee, for a fall of timber on the estate. On the 16th of July, 1714, articles were entered into between the plaintiff's father, by Mr. Marriot his attorney, on the one part, and
letter of attorney to

John Hind Cotton, the defendant's father, on the other part, rewas seised for life (which is not true, for his estate was only for ninety-nine years, determinable on
Sir
citing that the plaintiff's father

his
to

life),

with remainder to

all

his sons in tail male, with remainder

Sir

John Hind Cotton

in fee; that the plaintiff's father

had

then no issue male; that he had desired Sir John Hind Cotton
(a;)

Dick. 183.

This case was copied from Lord Hardioicktf s written argu-

ment.

270

GARTH
to consont to the cutting

V.

COTTON.

* 823

and selling part of the [*822 timber then standing and growing upon the premises. Upon these recitals it is agreed that some person authorised by the plaintiff's father, and some person authorised by Sir John Hind Cotton, should view, and mark what timber trees were then tit to be eut down that then the parties should agree, and appoint by writing under their hands, how many of the trees so marked should be cut down, and sold for the best prices that could be got. That Sir John Hind Cotton should not take any advantage of the eut ling of the timber, nor should it be esteemed waste, nor any ad-

down

vantage taken thereof on pretence of

its

being waste.
sale of the timber
is,

The
it

first

trust of

the money

to arise

by

that
tes-

shall be applied to

pay

all

such debts as were owing by the

tator at

his death, together with the legacies by

him

given, which

have not been nor shall be paid out of the personal estate (although it is admitted, by the answer of the original defendant, Sir John

Hind
the

Cotton, the defendant's father, that the estate devised was not subject to the payment of the testator's debts); that the residue of
arising by the sale of the timber should be divided into the plaintiff's father and the late Sir John Hind between moieties

money

Cotton.

The

articles

Qd. then in the

then take notice, that there was a sum of 17S7Z. 5s. hands of one of the Masters of this Court, being the
off

produce of timber sold

the estate by Sir John

Hind

Cotton, the

defendant's grandfather, which was claimed by both parties; and it is agreed that the money shall be paid out of Court, and applied to
the same purposes as the
felled.

money

to arise

by the timber then

to be

It is further

agreed that the death of the plaintiff's father without

issue male, or, his having issue male, on the death of Sir

John Hind

Cotton, should

make no

alteration in the terms thereby agreed on;

but that the parties, their executors or administrators, should, notwithstanding any death or alteration, have the like share

*and

benefit of the

wood and timber

to

be felled and cut [*823

such wood and timber had been felled and cut down, and the money divided and paid between the plaintiif s father and Sir John Hind Cotton, before such death or alteration.

down

as

if all

Then
in

follows a clause for applying the testator's personal estate,

his first

the
Sir

place to the payment of his debts and legacies. John Hind Cotton, the original defendant, admits, by
first

271

* 824

GARTH
is

V.

COTTON.

answer (which

not replied to), that he received about the

sum

of

which the timber was sold. At the time of entering into these articles, and when the timber was felled and disposed of, the plaintiff ivas not born, but his father was then married to Mary Pullen, his first wife; and it is sworn by
1000Z. for his share of the

money

for

the

first answer, that he had been married to her for several years without having any issue, and was not then likely to have any by

her.

In September, 1716, she died without ever having had any issue; and sometime after, the plaintiff's father intermarried with Elizabeth Emmerson. On the 26th of May, 1724, the plaintiff was born, which was about
ten years after entering into the articles.

On

the 11th of January, 1727, the plaintiff's father died, leaving

the plaintiff, his only son, an infant,

who then became

entitled to

the estate as tenant in

tail in

possession.

On the 26th of May, 1745, the plaintiff attained his age of twentyone years, and in Trinity term following suffered a recovery of the
estate to the use of himself

and his

heirs.

On

the 20th of May, 1748, the original

plaintiff against Sir

bill was brought by the John Hind Cotton, who dying before a deter-

mination, the suit hath been revived against the defendants, his executors,

and the same

relief is

prayed out of his

is,

assets,

and assets
plaintiff is

are admitted.

Upon
[

this case the general question

whether the

entitled to satisfaction for so

much as Sir John Hind Cotton,

came
in esse,

* 824

the father, received out of the inheritance * by the fall and

sale of timber, before the plaintiff

and conmere con-

sequently before he had any estate in him in the land, and whilst
the remainder, which vested in

him

afterwards, rested in

tingency or possibility.

This hath been admitted at the Bar, on

all sides, to

be entirely a

new

upon which there is no precedent, and which hath never been brought into judgment before. It hath been admitted, also, that the plaintiff can have no remedy at law, either in his own name or in the names of the trustees, to preserve contingent remainders, but that his only possible remedy
question,
is in

a court of equity.

This

made

it

necessary for the Court to proceed with great delib-

eration before a decision

was made, which would be the

first

prece-

272

GAHTII

V.

COTTON.

825

ders,

dent after the invention of trustees to preserve contingent remain now about a hundred years since, and which may have exten-

sive consequences as to other cases that

may

arise.

In order to determine whether the plaintiff is entitled to the relief he prays, it will be necessary to take several matters into cqnsidera
tion

to lay down
clear

others that appear

some that are plain, and more doubtful.

to clear

and establish

was a wrongful from the nature of the limitations. The plaintiff's father was only tenant for years, punishable for toilful icaste, and had no present right to or interest in the timber,
First, that the stripping of this estate of the timber
is

act

other than the mast,

and shade, and necessary

botes.

The defendant's

father

had no present right

to cut
It

it

down, but
true,

in his turn, according to the order of limitation.

is

the

inheritance was vested in him, subject to open and let in the con-

tingent remainder,

when

a son

should come in esse

and

in

that

quality the timber part of the inheritance was vested in him, but he

and use it. The trustees, who were might have restrained him in * this court by injunction, and the plaintiff might have [ * 825 ] brought an action of trespass against him for his entry and tortious actFurther, it was the duty of the plaintiff's father so to have done, not only in respect of the trespass upon himself, which he might have waived, but in respect of the privity which was in expectancy between the tenant for years and the contingent remainder-man, when he should come in esse; for between the tenant for years and the lessor, or the remainder-man of the inheritance, there is a privity: and before the statute of Quia emptores terrarum a tenure arose: and this
had no present right
seised of
to take

the

freehold,

makes a tenant

for years a

kind of fiduciary for the

lessor, or the

remainder-man, who stands in his place. As this act was wrongful, both in Mr. Garth, the

plaintiff's father,

John Hind Cotton, so this wrong was committed collnsively between them: when I say collusively, I do not mean an injurious intention, for they might mistake their right but that will not
and the late
Sir
;

vary the case in respect of right of the others.

whole frame of the

of

articles,

This appears by the which are an agreement to do what neither

them
not.

alone, nor both together,

is

had a right

to do.

In order to

this,

the plaintiff's father

recited to have the freehold,

if it
'

had

A colour

is

given to the transaction, as

which he were for pay -

* 18

WHITE ON EQUITY.

273

* 826

GARTH

V.

COTTON.

merit of the debts of the father, to

which

it is

admitted the estate

was not

liable;

and

it is

expressly stipulated, that, even in case the

die, leaving issue male, before all the tim-

plaintiff's father

should

ber should be felled and the

cles
(i.

money

divided, the parties to these arti-

e.,

the tenant for years, and the remote remainder-man,)

should have the same shares as

pened.

if all the timber had been felled and the money divided before such death or alteration had hap-

Can

there be a stronger proof of collusion than this?

The

ten-

ant for years enters into an agreement, not only contrary to his
general privity and trust
* 826
(if I

may

so speak), but both the parties

-

bind themselves in plain terms to injure the remainder man, even after his estate * should become vested, if that

event should happen before this destruction was completed. The next thing which is plain and self-evident is, that this wrongful collusive transaction hath turned to the damage and loss of the
plaintiff.

The next inquiry is, whether the plaintiff is entitled to any remedy in this Court upon the principles of equity. At law, it is admitted, as I said before, that he can have none; and
it

must be admitted
in equity.

further, that,

if

the limitation to trustees to pre-

serve contingent remainders had been out of the case, he would have

had none
if

Indeed, as the plaintiff's father was

there

made only tenant

for years,

had not been such a limitation to the trustees, all the contingent remainders would have been void, for want of an estate of freehold to support them; and Sir John Hind Cotton would have had the immediate freehold as well as the inheritance in him, which would have given him a clear right. But if the plaintiff's father had been tenant for life, and there had been no such limitation to the trustees, the plaintiff could even then have been entitled to no
remedy, because his whole use in the land, whilst it remained in contingency, would have been in the power of the tenant for life to
bar by
fine,

feoffment, or surrender to the remainder-man vested;

for this

and there could have been no pretence

preserve or restore to

Court to interpose to

him

part of that inheritance, the whole of

which was in the power of the tenant for life. Therefore, the stress and foundation of the plaintiff's equity depends entirely upon the estate limited to the trustees to preserve the contingent uses, and the consequences from thence.
274

GARTH

V.

COTTON.

* 827

la order to determine concerning the force and opeiation of this

in the present case, I will consider
First,

what

is

the intention and use of creating limitations to

trustees for preserving contingent remainders.

Secondly, what estate such trustees take in point of law, and what
actions they
Thirdly,

may maintain

at

common

law.

what is tho nature and extent of this trust *in [ * 827 ] equity, and what remedy they may pursue in this Court. Fourthly, how far, and in what cases, such trustees may be chaiged in equity for a breach of trust, or any other person be affected by their acts, or laches, in breach of their trust.
First, the intention of limitation to trustees to preserve

contingent

from the determination of two great eases, reChudleigtis case (y), ported by Lord Coke, in his first volume Hil. 31 Eliz., and Archer's case (z), Mich., 39 Eliz though it was several years after those resolutions before that light was struck
uses took
its

rise

till

was not brought into practice amongst conveyancers usurpation, when, probably, the providing against forfeitures for what was then called treason and delinquency was an additional motive to it. Let us see, then, what were the claims and defects which wanted to be filled up and remedied in consequence of those two judgments. The grand dispute in Chudleigh's case was concerning the power of feoffees to uses created since the Statute of Uses (27 Hen. 8, c. 10), to destroy contingent uses by fine or feoffment before the contingent use came into being.
out,

and

it

the time of the

In order to determine

this,

the judges entered into very refined

and speculative reasonings, some of which (I speak it with reverence) are not very easy to comprehend. They all agreed, that where there is a conveyanee to uses, to the use of the father for life, remainder to his first and every other son in all those cases no estate at all is in tail, with remainders over left in the feoffees, but the whole estate is divested and drawn out of them by the Statute of Uses. But then came the question respecting the contingent uses to the On the one side, though they admitted there was sons not in esse. no estate left in the feoffees, yet they said there was a scintilla juris, a power of entry to preserve the contingent uses, if by reason of dis-

(y) (z)

Co. 120, Poph. 70,

63.

and

And. 309, where

it is

best reported.

1 Co.

275

* 829
seisin

GARTH
or

V.

COTTON.

disturbance of the estate, there

should

be

occasion;

for,
[

say they, no use can be executed by the statute unless

* 8'28

que

*there be a person seised to the use, and also a cestui And, if any disseisin or disturbance of the estate use.

statute: therefore, lest these contingent uses should

should happen, the right to the use cannot be executed within the be destroyed

and not executed, there must, by construction of the statute, be such a power of entry left in the feoffees and their heirs. This was the opinion of the greatest part of the judges. Others of the judges were of opinion that there was not only no estate left in the feoffees, but no power or right to enter, nor anything to do with the land; but that they were at first only conduit pipes, and the estate that was in them was by the statute wholly transferred to serve the uses which were in esse, with a pregnancy

and prospect to the contingent remainders if they should arise in their due time. It must be observed, that one thing which weighed much with
the majority of the judges, to be cf opinion for leaving a right of entry in the feoffees to preserve the contingent uses, was their fear of perpetuities, and of having contingent estates by way of use in

persons not in esse,

for this doctrine, as

if

it left ,it

they should not be destroyable by the feoffees; in the power of the feoffees to preserve
it

the contingent uses, so

if

put

it

into their

power

to destroy them,

they pleased.

time the law was not settled that the destruction of the particular estate by the feoffment or conveyance of the cestui que use for life, before the contingent

The reason

of

which was, that

at that

remainders became vested, was a destruction of the contingent

re-

mainders: but afterwards came Archer's case, in which case this point was solemnly settled, and they were relieved from their apprehensions;

though Archer's case is placed in the reports before Chudleigh's case, it was not determined until some years afterwards.
for,

The

clearest

summary

of the reasoning in those cases is stated

by Mr. Pollexfen, in his argument of the case of Hales v. Risley, in Pollexfen, 385, from whence I have taken it. * 829 ] *From this deduction you will see what were the chasms [
and defects to be supplied. Here was, then, understood to be a power
here was a power in the cestui que use for
in the general feoffees

to uses, either to preserve or destroy those uses

life to

ad libitum, and
destroy them.

276

GARTH

V.

COTTON.
tilled up':'

830

How

were thoso defects

to

be supplied and

By

vest-

ing a limitation

in certain trustees eo nomine,

upon an express
'.'

But how to support them By preserving tbo whole inheritance to come entire to the cestui que use in contingency, in like manner as trustees to uses ought to do before the Statute of Uses, when they were but trusts to be executed in this
trust to support them.

Court.

legal estate,

And, as things then stood, such trustees, having the whole might and ought to preserve the entire inheritance,

all

whether consisting of the lands, mines, or timber, for the benefit of the cestui que trusts in remainder, either vested or contingent.
Secondly.

Consider, in the next place, what such trustees take in

point of law, and what actions they

It

may maintain

at

common

law.

hath formerly been attempted to be brought in question, whether upon, such a limitation to trustees, after a prior limitation
for life, they took any estate at all in the land, or only a right of entry on the forfeiture or surrender of the first tenant for life, by reason

that the limitation, being only during his

life,

could not commence

or take effect after his death.

was soon settled on the authority of Cholmondeley''s case, where it was held, that, if there is a lease to A. for life, remainder to another during the life of A., this is a good remainder; for by possibility the remainder may take effect in case a tenant for life makes a feoffment in fee, or commits any other forfeiture; and so in the bouk, 41 Edw. 3 Fitzh., tit. '"Waste," 83; and this is followed by the late case of Duncomb v. Duncomb, Hil., 7 Wil. 3, C. B., 3 Lev. 437, which was one of the first cases wherein the operation of such * limitation to trustees to [ * 830 preserve contingent uses came into question. If this be so upon such a limitation, after a prior estate for life, it holds much more more strongly when limited after a prior estate for years only, determinable on the life of the first tenant: because in the last case it comes the first estate of freehold, to the trustees, as was rightly reasoned by Lord Chief Justice Lee, in the case of Smith v. Dormer, and Packhurst, Mich., 14 Geo. 2, B. B. (a). It is plain, therefore, that these trustees had the immediate freehold in them an estate pour autre vie; and at law they alone could maintain or defend any action concerning the freehold. If a disseisin was committed they must bring the assize, and they must defend in all praecipes: for the possession of the tenant
this

But

2 Co. 50.

a.,

(a)

8 Vin. Ab. 413; Willes' Rep. 327; 3 Atk. 135; 6Bro. P. C. 351, Touil. ed.

277

* 831

GARTH

V.

COTTON.

for years was, in law, their possession: for this reason they

had

in

law an interest in the timber, not, indeed, to cut down or destroy, but in respect of the enjoyment by their tenant for years, and of
the expectancy of
its

coming

into their actual possession,

by the

determination of his estate, as part of their freehold.

Notwithstanding all this, it is certain that they could maintain no action of waste; the reason of which is, that the common law gave the prohibition of waste only to an owner of the inheritance, and the Statute of Gloucester gave the writ of waste to the same
person.

But

in this respect such trustees are in

life.

no other condition

than

all

other remainder-men for

Thirdly.

Consider, in the next place, what

tent of their trust in equity, and

in this Court.

is the nature and exwhat remedies they may pursue

And

I hold

it

to be agreeable to natural justice,

of right, to construe their trust in the

case of Mansell

v.

Mansell,

(b),

and in support most liberal manner. In the (which must be more particularly

mentioned by and by), it was expressly laid down "by Lord Raymond, as I took it from his own mouth " It is only positive law that tenant for life may destroy contingent remainders, and therefore it was a very considerable invention to create these * preserve them; they are the creatures of the [ *831] trusts to Court, and properly under its direction and control."

The

first

trust is declared to preserve the contingent estates there-

inafter limited.

How

to preserve

them

To

preserve the inherit-

ance as entire as possible to go according to the succession established

by the testator, which inheritance consists of the land, timber, and mines, and cannot be preserved entire without preserving all three. In many estates the timber is the most valuable part in more, the mines; and the destruction of the one, or the exhaustion of the other, might take away, or be an alienation of, the be^st part

of the inheritance.

But

it

tion of the legal estate of the use,

hath been objected, that this relates only to the preservaand not to the timber or mines,

because the estate of the trustees cannot support any action of waste.

This might, in

many

instances, be to preserve the shell without

it

the kernel, and brings

to the question,

what remedies they may,

ac-

in virtue of this trust, pursue in this Court.

These trusts are equally declared to make entries and bring

~
(b)

2 P.

Wms.

678; Ca.

t.

Talb. 252.

278

GARTH
tions, as the case shall require.

V.

COTTON.

* 832

Here

it is

expressly to do

all

and

every such lawful act and acts, by entry or otherwise, as shall bo requisite for that purpose and cud.

But whether the expression be the one or the

the same thing, and comprehends
equity.
all

other,

it

comes

to

remedies both in law and

For the course of equity is a part of the constitution of the law and judicial proceedings in this kingdom. Therefore, if, after a forfeiture committed, and an entry made for that forfeiture, such trustees wanted any assistance of a Court of equity in support of their trust, and not to break in upon the right of the tenant for life to receive the rents and profits, they might undoubtedly, by force of this trust, have their remedy here. As they may do this, I am
an injunction to stay produced for it. *"In the present case they were remainder-men pour autre [ * 832 ] vie, and immediately owners of the freehold in law. In
a
bill for

clearly of opinion, that they

may bring

waste, although no precedent in point

is

the case of Dayrell

v.

Charnpness,

Eq. Ca. Ab. 400, Trin., 1700, a

remainder-man for life was admitted to maintain such a bill without making the owner of the inheritance a party, and although it was
observed upon that case by Mr. Clarke, that
of
it
it

appears by the state

in the

book that the

plaintiff

had the

first

remainder in

tail

vested, yet that doth not appear by the recitals of this decretal order;

and

if it

had, the objection could not have been made.

If the trustees could

do

this as

remainder-men of the legal estate

pour autre

vie,

surely their trust, which affects their conscience, and,

according to Lord Raymond's opinion, makes them creatures of this Court, would not make the case their weaker here.

But the books go

further,

and say a

bill

may

be brought for an
(c).

injunction to stay waste on behalf of an infant en ventre sa mere

And
more
I,

so

is

Musgrave

v.

Parry, 2 Vern. 710; which

is liable

to

much

difficulty, for that

must be as amicus

curias

on the unborn

child's behalf.

therefore,

brought such a
ton.

bill,

hold most clearly, that the trustees might have and obtained an injunction to stay this waste,

both against the plaintiff's father and the late Sir John Hind Cot-

Pursue

this, then, into its necessary consequences. Suppose, after such an injunction granted, the timber had been
(r)

See LutterelFs

case, cited Prec. Ch. 50;

Scatterwood

v.

Edge,

Salk. 229.

279

* 833
felled: this

GARTH
had been
a

V.

COTTON.

contempt of the Court, and the conteinnor

must have stood committed. Then arises the question which Mr. Solicitor -General (d) very properly put in his argument on what terms should they be dis-

charged? This Court could not have fined them: therefore, cerThat satisfaction tainly, only on the terms of making satisfaction. and thereagain, trees the setting up by made been have could not must have had Who value. the paying by been have fore it must
that value
[

Not the tenant

for years, for

he had no pretence

*833

nor the remote remainder-man in fee, for *he had to no right to take it: and this would have been to reward
it;

them both for their contempt and collusion. The consequence is, it must have been laid up, and secured to attend the contingent uses. Without this, justice could not have been done. It comes next to be considered, how far and in what Fourthly.
cases such trustees
or any other person
of trust.

may be charged in equity for a breach of trust, may be affected by their act, or laches, in breach

Notwithstanding the saying of Mr. Pollexfen, arguendo at the bar (Pollex. 250), " that trustees to preserve contingent remainders

were never punished in equity, when they broke their trust " (which^ by the way, is a kind of contradiction in terms), that is now exploded, and settled to the satisfaction of mankind to be otherwise.
broken in upon by Lord Harcourt, in the case of Pye that " when such trusv. Gorges (e), Mich., 1710, where he declared or will, and settlement marriage by whether appointed, tees were to destroy conveyance in a joined son, of a birth the they, before and the trust, of breach plain was a this remainders, the contingent
It

was

first

persons taking under such a conveyance, if voluntary, or having " and he said, if there notice should be liable to the same trusts:

was no precedent in the case, he would make one. Then came Tipping v. Pigot (/), in Mich., 1711, before the same Lord Chancellor, and he adhered to the same doctrine, and said it would be dangerous for such trustees themselves to make the exThus it stood till the great case of Mansell v. Mansell, periment. which was first decreed by Sir Joseph Jekyll, at the Rolls, in Janu(d)
(e)

^ Tonil. ed. Prec. Ch. 308; 1 P. Wms. 128; 2 Salk. 680; 7 Bro. P. C. 221, 34. (/) 1 Eq. Ca. Ab. 385; Gilb. Eq. Rep.

Murrav, afterwards Lord Mansfield.

280

GARTH
ary,

V.

COTTON.

S34

1731,

and afterwards by Lord King, assisted by Lord Ray

Reynolds, Dec. 12,
\~'-Yl

mond and Lord Chief Baron

Here
all
it

(g).

was

first

solemnly settled by the concurrent opinion of

a breach of trust; and also,

those great men, that the trustees themselves shall be liable in

equity to

make

satisfaction for such

that a voluntary alienee, or a purchaser for a valuable consideration, with notice of * the trust shall be decreed in
[

*834

equity to restore the estate; and in that case

it

was

de-

creed accordingly.

Thus

it

stands determined, that for a breach of trust in aliening

the inheritance the trustees are liable, and other persons are affected by their act done in breach of this trust.

On this

I build: suppose those trustees

had consented

to the fell-

ing and salo of the timber

had joined with Mr. Garth and Sir John

and expressly covenanted that they would the trustees in that case have been liable? Clearly so; for it was agreeing to alien part of the inheritance; and it plainly shows from the principle on which the Court founded itself in Mansell v. Mansell, Lord Raymond said, "It was strange in natural reason to say, that, where a man hath
in the articles,
bill for

Hind Cotton

would bring no

an injunction

created a trust to preserve his estate, the trustees

trust,

may break

that

and give away the estate with impunity; and that there wanted no particular precedent for it, because it is founded on all
the general rules of trust."
If the trustees had joined in the articles thus to break their trust, would Mr. Garth, the father, or the late Sir John Hind Cotton, have been affected by this express act, done in breach of their trust? This, to me, is also as clear; for then they would have had notice of this breach of trust, and have reaped the benefits of it; which is ex-

pressly within the rules of Mansell

v.

Mansell.

And

here I cannot

help repeating some remarkable words of Lord King,

who was
it is,"

not
said

disposed to amplify the jurisdiction of this Court.

his Lordship, " a breach of trust,
over, a
spoil."

" If

Court of equity
is

is

not to

sit still

and the trustees convey the estate and let others profit by the
all

This position
ence
is,

very apposite to the present case;

the differ-

that here is no positive act of the trustees, but only laches

or neglect in not performing their trust,

and bringing

a bill for an

injunction to stop this waste.

(</)

2 P. Wins. 687; Ca.

t.

Talb. 252; 2 Eq. Ca. Ab. 747.

281

* 836

GARTH
This

V.

COTTON.
if

may
it

excuse the trustees

they had no notice of the

[* 835

scheme or attempt to

strip the estate of the timber; * but

how
it,

will

excuse the others, who, as Lord King expressed

?

have profited by the spoil In

all

By no

means.

cases of alienation the alienees are not affected merely by

act of the trustees, but

had actual notice

cited
it

of the will, claim

by notice of the trust and here all parties under it, and have expressly re:

in their articles.

Therefore, in this case the actual notice

the laches of the trustees affect them would have done in the other and it would be strange to say that the plaintiff's and defendant's father would have been liable for the timber if the trustees had concurred in the destruction and sale of it, but shall be in a better condition What is the justice that results from hence, because they did not. but restitution ? Just as in the case of an alienation with notice, indeed, it plainly folthe justice would have been a re-conveyance lows by analogy from thence. Suppose an estate with valuable mines in it, unopened, settled in this manner, and the trustees to preserve contingent remainders had joined in an alienation, with
of the trust operates to as

make

much

as their express act

notice.

Afterwards such a purchaser, with notice, opens the mines,

of money into his pocket. Then a son is born, who is tenant in tail the tenant for life dies, and the son brings a bill for a re-convey?.j ce if, according to the
: :

and exhausts them, putting a great sum

authority of Mansell
ance,

v.

Mansell, the Court had decreed a re-convey-

would the

justice

have been complete without decreeing

sat-

was carried off by exhausting the mines? Clearly not. It would be a necessary, unavoidable consequence of equity, that satisfaction must be made to And yet this is liable to the same obthe owner of the inheritance. It was jections as have been made in the present case at the Bar. done at a time when the contingent remainderman had neither jus in re nor jus ad rem, before he was in rerum natura and no wrong can be done to a person non-existent. But these are colourable objections only for, if equity ought to wait, and expect the * benefit and restore him that [ *836] vesting of the estate for his estate, it ought to do it completely. I have chosen to go through the general reasoning (which hath,
isfaction for so of the inheritance as
;
:

much

upon the maturest consideration, convinced me that the plaintiff ought to be relieved in this Court), before I state the objections

made on

the part of the defendant, the rather because the clearest

282

GARTH
answer to these objections
that reasoning.
First objection.

V.

COTTON.

* 837

will arise

from the right application of

That the interposition and allowance of trustees

to preserve contingent remainders was not intended, nor has been suffered, to alter the legal rights of the tenants for life and the first

remainder-man of the inheritance vested, either in respect of the timber or other property of, or powers over, the estate. Answer. This objection assumes too much for I have already

demonstrable, that the very intention of interpos ing this new-invented limitation was to alter and abridge the legal rights both of the tenant for life and the first remainder-man veste<
proved, and
it is
i,

to abridge the legal right of the former to defeat

and destroy the contingent use of the inheritance whilst it remains contingent and eventual, to abridge the legal right of the latter, to destroy it by accepting a surrender of the estate for life all which are as much legal powers as the cutting down of timber or the opening or dig:

ging of mines. I admit the instance which was put, that

accident, or cut
life alone,

if

for life or for years, subject to waste) timber is

(where there is tenant blown down by

down by

the owner of the

it,

the tort of a stranger or of the tenant for first remainder of inheritance vested

shall

have the benefit of

the
".ate

down on
field
v.

Betvit, 2

Duke of Newcastle's P. Wms. 240 (h)

;

So was the case of the timber blown estate, and the case of Whitbut the ascertaining of the

ground

of these resolutions is sufficient to distinguish

them from

the present case.

The common law doth

as having existence
till

not,

they happen

nor can, consider the contingent uses therefore, according

:

to Leicis Bowles's case, 11 Co. 79,

Aleyn, 81 an estate in
,

and Udal contingency is as no estate

v. till

* Udal, the con-

* 837

tingency happens.

And when the trees

;

are severed the property

must

and that can only be in the first remainder-man of inheritance vested and on the foundation of that property he may maintain trover for them. This is his right at law; and there is in the cases put of trees fallen by accident, or merely by the wrongful act of a stranger or of the tenant for life, no ground of equity to take it from him.
vest immediately in somebody,

But here comes in the force and operation of the collusion in this The destruction being made by contrivance ami collusion case.
(A) 2

Eq. Ca. Ab.

58a

283

* 838
icith the

GARTH

V.

COTTON.

remainder -man and affecting his conscience, obliges this its known maxims in laying hold of it either by restraining the act before it be completed, or decreeing satisfaction
Court to pursue
for
it

afterwards:

for, in all

cases where a legal right is acquired or

it is

exercised by fraud or collusion, contrary to conscience,

the office

of

this

Court to enjoin
objection.

it,

or decree

a compensation.

to all the rules of law,

relief sought by the bill is contrary which allows no remedy for waste to any person who hath not an immediate reversion or remainder of in-

Second

That the

heritance vested at the time of the waste committed.

Answer.

This

is

true in general, thought

law.

it

admits of some ex-

ceptions even at

in the latitude with

case,

at common law which it was laid down, it would not govern this which depends upon principles of equity arising from the col-

common

But,

if

it

were true

lusion

and covin behceen

the tenant for years

and

the remote re-

mainder-man, which is an established ground of relief in this Court, even beyond, and sometimes contrary to, the rules of law.
However, as I always incline to adhere, as near as justice
will

admit, to the rule equitas sequitur legem, I will endeavour to show

how
[

far the opinion I have given coincides with, by, the reason of

and is supported some cases concerning waste.

*838

* It

is

clear, that

when

there

is

a tenant for iife

for life

(),

with

remainder over in fee or

waste.

tail,

and tenant
tail,

commits

waste, the remainder-man in fee, or in

can have no action of

The reason

is,

because the plaintiff in the action must

recover the place wasted, and that would be an injustice to the re-

mainder for life, which is not forfeited; and, if it should be recovered by the owner of the inheritance (being under a limitation of the party) it would never go back again. But, notwithstanding that, he may have another action of trover for the trees, and therein recover satisfaction for the wrong done to the inheritance; nay, in case the remainder-man for life dies, living the remainder-man of the inheritance, he may then bring an action of waste for the waste done during the continuance of the
remainder for
Further,
if
life.

there be a tenant for

or reversion in fee,

life, with an immediate remainder, and the remainder-man, or reversioner in fee,

grants over his remainder, or reversion, to A. for the

life

of A.;

then the tenant for

(i)

life

commits waste, and afterwards, the grantEvidently omitted.

[With remainder

to another tenant for life.]

284

GARTH
or
(A;)

V.

COTTON.
life, dios,

* 839
this romaindor-

of the remainder, or reversion for

man, or reversioner in fee, may maintain an action of waste, though he had parted with his remainder, or reversion for that time, by
his

own voluntary

act.

by Paget' s case, 5 Co. 76, b., and the case of Udal v. Uclal; and I shall make a further use of it by and by. But such is the abhorrence of the common law to waste and destruction, that it hath extended its remedies, in some special cases, beyond the strict principles on which they were originally founded; and, therefore, though it be requisite in general, that the inheritAll this appears

ance should be vested in the plaintiff at the time of the waste done,
else

he cannot lay

it

to his disherison;

yet, if the estate

were out

of

him by wrong, and then come

Thus,
if

into

him

again, he shall maintain

the action of waste.

fee

lessee for life

make

a feoffment in

upon

condition, the feoffee does waste,

and afterwards
life

breaks the condition, and the * lessee for

enters for

*839
]

the breach, though the reversioner had nothing in the reversion at the time of the waste done; yet, as
tort,
it

was out

of

him by
a.

when

it

is'revested, he shall

have this remedy. Co.

Lit. 356,

But there is another case at law, the reason of which seems to me to be more analagous to the present case; as that of a bishop, after the restitution of temporalities to him and his successors, in "When he dies, during the vacancy the right right of his church. is in the king; and when a new bishop is invested with the temporalities,

the fee

is in

him.

Suppose, then, a tenant for

life,

or for

by demise of the predecessor, commits waste during the vacancy, the successor shall have the action for this waste, though he had nothing at all in the land at the time the waste was done. Co.
years,
Litt.

356; Fitzh. N. B. 112.

therefore

is by particular statute, and no proof of the reason of the common law; and that the Statute of Marlebridge (52 Hen. 3, c. 29 (Z)), against depredations

I shall be told, perhaps, that that

is

upon the possessions of ecclesiastical persons, gave this remedy, and for this some countenance may be drawn from what Fitzherbert says, in the place cited.

But

beg leave

to

deny

this to

be law, and to hold, that that

statute doth not include bishops or their possessions;

(k)
{I)

and

of this

Query grantee.
Repealed as
to E. Stat,

Law

Rev. Act, 1863; as to

I.

Stat.

Law

(I.)

Rev.

Act, 1872.

285

,*

840
is

GARTH
Lord Coke,
in his

V.

COTTON.

opinion

reading on the Statute of Marlebridge

are,

(52 Hen. 3), 2

Inst. 151.

His words

"This Act extendeth only

to abbots, priors,

and other prelates, that be religious and regular, and not to bishops and other ecclesiastical persons, being secular; for in the second clause of this Act, hujus modi religiosorum is mentioned for the distinction between religious and secular; and the reason of this diversity is, that the abbots and priors, and other religions persons, are dead persons in law, and have capacity to have lands and goods only for the use and benefit of the house, and cannot make any testament; and therefore, the church, or reis holden always one; in respect whereof, the succeeding abbot shall have an assize for disseisin done in the lifetime of his predecessor, and an action of waste *for

ligions house,

* 840

bishop, dean, archdeacon, or the like,

secular, because the church,
is

waste done in his predecessor's time; but so shall not a who are ecclesiastical persons

by their death, hath an

alteration,

and

not always one."

That the opinion of Lord Coke was, that the action is not founded on the Statute of MarleBridge (52 Hen. 3, c. 29), is clear by other casas; for if bishops were within the statute, then they as well as abbots might have an action of waste for waste done, not in time of
vacancy, but in their predecessors' time, which, as to ecclesiastical

persons regular,
24; Pla.

is

clearly within the statute; but

it

hath been

set-

tled that they cannot: 39

3, 4, 5, 6, 7.

Edw.

3,

15; 2 Hen. 4, 2; 2 Roll. Abr. 8,

From hence T

given, not by particular statute, but

would not permit an estate, whilst it was in gremio legis, as it were, to be destroyed or stript without giving a remedy to punish it, though by an extension of
its

infer, that this remedy was by the policy of the law which which it allowed to be created, and

common
But
still

principles.

must resort back to this, that if there was not so much countenance from the reason of some cases at the common law for this opinion, yet that would not govern this case, which depends on principles of equity; and equity hath always gone further to restrain
I

waste and destruction than the

for life,

common law hath

done.

Therefore, in the case already put, of an intermediate remainder

though the law allows no action of waste, this Court susand this ab antiquo, according to the case in Moore, 554; where Lord Ellesmere says, he had seen a pretains a bill for an injunction,

286

GARTH
cedent for Abr. 377;
1

V.

COTTON.

* 841

it

so loner ago

as in the reign of

Richard

II., 1 Roll.

Vera. 23 (m), and many cases

the tenant in
tail,

in practice.

And although

after possibility of issue extinct,

by reason of the inheritance, which is at law Nottingham was clearly of Chancellor Lord yet was once in him, restrain a tenant in tail from cominjunction to an grant opinion, to ornament of a mansiongrew for the which timber, in waste mitting
dispunishable for waste
house: Abrahall
v. Bubb, 2 Freem. 53; 2 Sho. 69 (n). book there is the like case, before *Sir John same In the 2 Freem. R, 278, Hil. 1704; and this hath Trevor, M.

* 841

been followed since, by several cases of tenant for life without impeachment of waste generally, who have attempted to pull down a mansion house, or to cut down timber growing for shelter or ornament of the mansion-house. But this Court hath gone still further; and in the case of Abrahall v. Bubb, Lord Nottingham cites the case of a Lady Evelin, where there was tenant for life, remainder to the first son for life without impeachment of waste, with remainders over; and the first
son,

and

by leave of the lessee of the tenant for life, came upon the land which was not under the description of trees growing for shelter or ornament; and this Court granted an injunction against him, though no action whatsoever could be maintained at law: and upon the same ground I did the like in the case of FlemThere the ing against the late Bishoj) of Carlisle and oilier*.
felled timber,

bishop was tenant for

life,

remainder

to his eldest son

for

life,

without impeachment of icaste, 'with remainder over in fee; the eldest sen, by permission of the bishop, entered and began to cut

down

injunction,

bill for an and I granted it, because he was not to be allowed to exercise his power of doing waste by anticipation, and before the estato to which this privilege was annexed came into possession; and this in reason comes near to the case of the late Sir John Hind Cotton's bringing himself, by collusion, into possession of the tim-

the timber, and the reversioner in fee brought a

ber before his time.

The case of Robinson v. Litton (o) went still common law: that cause was heard in this Court,
ber, 1744.
if

further than the

the 12th

Decem-

and his heirs; and he should die before the age of twenty-one years, leaving no

There was a devise

to the defendant

im) Tracy
in) S. C.
(o)

v. Tracy. 2 Eq. Ca. Ah. 757. 3 Atk. 209; 2 Eq. Ca. Ab. 528.

287


* 842
issue,

GARTH
then to the testator's
first

V.

COTTON.
tail,

&c. daughter in
if

remainder to

the testator's

own

right heirs; but

the defendant should live to

attain the age of twenty-one years, then the estate should be sold,

and the money be applied

* 842

for the benefit of the testator's

The defendant being under the age * of twen[ ] ty-one years, began to commit waste, and the daughters brought their bill in this case; and though the defendant had the inheritance in him in point of law at the time, yet by reason of the
daughters.

contingent executory limitation, the Court granted an injunction,

and

at the hearing of the cause, after its being fully argued,

made

that injunction perpetual.

Third objection.
this

That,

suppose a

bill

might have been mainfrom thence,

tained by the trustees to support the contingent remainders, to stay

waste before
is

it

was committed, yet

it

will not follow

that after that

over, a bill

may now

be brought for an account,

and that the jurisdiction

value of the timber,
is

of this Court to decree

an account of the

only incident and concomitant to the juris-

diction of granting an injunction.

Ansicer.
for

It is true that the general

is

run of the cases

is

of bills

an injunction, because that

remedial to
a
bill for

and the most the party; but that affords no conclusive argument that
a preventive suit,

such an account cannot be maintained without praying an

injunction.

In support of this notion, only one case was cited Jesus College Bloome (p), which was before me November 13, 1745. The lessee of the college had, during his lease, cut down some trees, and taken away some stones and materials of the premises, and converted them to his own use; the term was expired, and a new lease granted to a stranger, and the college brought their bill for an account and satisfaction of the waste. At the hearing of the cause, I doubted (amongst other things) whether such a bill in equity was maintainable, without praying an injunction to stay the waste, and it stood over to another day, to produce precedents; none were produced, and the bill was dismissed, without costs; but the point was
v.

not absolutely determined, nor was that the only ground of the dismission: but I was of opinion, that, at the utmost,
discretion of the Court,
it

was
it

in the

and

if

the college had a right, they might

clearly bring an action of trover at

common

law; and

being a

(p) 3 Atk. 262; Amb. 54, where the reports of the case differ from the account of it given here by Lord Hardwicke, and the bill was, it seems, dismissed,

with

costs.

288

GARTH

V.

COTTON.
lit

*
to 'Countenance

844

matter of small value, I did not think

such

bills in this

Court, -'after the lease expired.

t

This

is

* 843

widely different from

stances,

lie

present caso in
it is

all

its

circuma

and particularly that

admitted, that the plaintiff here,

is

though greatly damnified, can have no remedy at law, which

substantial difference.

Fourth objection.
yet there
is

But

it

for an account, not incident to

was objected further, that if such a bill an injunction, can bo maintained,

no precedent of decreeing the value of the timber to be

this could not be done,

secured and laid out in land for the benefit of the contingent re-

mainder-man; and

even upon a

bill

by

trus-

tees to preserve contingent remainders before the waste completed;

and
of

for this the case of Whitfield

v.

Ansiver.

This objection hath been already answered

to that I will refer

Bewit (q) was relied on.

in the course
it.

my

argument, and

without repeating
of Whitfield
v.

The
is

sound distinction between

the collusion

this case

and that

Bewit

and covin between the tenant for years and the remote remainderman in fee ; whereas in that case, the remainder-man in fee was entirely innocent, and had done nothing contrary to conscience to come at his legal property in the timber when severed: but it was solely the tortious act of the tenant for life; and I think I have proved that in somo cases of destruction of contingent remainders, or alienations of part of tho inheritance, to the prejudice of the

contingent remainder-man, such an account and compensation must

be decreed, in order to attain adequate justice.

On

this I rely for an

answer to that objection.

is

Fifth objection.
Ansxve:.-

That the demand

though there
plaintiff.
is

made

after a great length of

time, and that ought to be allowed as a bar in this Court.

But

length of time in the case, no

is

statute of limitations stands in the way, nor

there any laches to

bo imputed to tho

It is true the articles were entered into in 1714, and the timber was felled soon after; but the plaintiff was not born till May, 1724: his father lived till 1727, and * he did not at- [ * 844 ] tain his age of twenty-one years till May, 1745; and this bill was brought in May, 1748, within three years after his coming

of age.

As

to the inconvenience objected to arise

from this length

of time,

how

is

that inconvenience greater than the

(q)

common

law's allowing

2 P. Wilis. 240.

* 19

WHITE ON EQUITY.

289

* 845

GARTH

V.

COTTON.

an action of waste to be brought by a remainder- man in fee, after the death of a mesne remainder-man for life, for waste done in his
lifetime
?

That

life

may have

lasted forty,

fifty,

or sixty years after-

wards, and yet this the law allows.

tiff

Besides, in this case the plain-

submits to accept the value on the foot of the defendant's an-

swer, which avoids the difficulty of an account.

Sixth objection.

Another objection hath occurred

which was in him by the
will,

to

me

in con-

sidering this case, which was not mentioned at the bar, and that is, that by suffering a recovery in 1745, the plaintiff hath altered the
state of the remainder,

and gained a

use; that this might have been a bar to a proper action of waste at law, for waste done precedent; and, by parity of reason,

new

ought to take away his remedy in this Court. Answer. This objection, though it may strike

at first, yet re-

ceives a clear answer.

I admit that in Co. Litt. 53

waste done, there

waste done;
over,

is

of the reversion in

Lord Coke lays it down that, after had to the continuance the same state that it was at the time of the
b.,

a special regard to be

for, if after

the waste done, the reversioner granteth

estate, yet
is

it

though he taketh back the whole

So,
if

the waste dis-

punishable.
his wife,

A. grant the reversion to the use of himself

and

and

of his heirs, yet the waste is dispunishable;

and so of

the

because the estate of the reversion continueth not, but is altered: and, consequently, the action of waste, for waste done belike,

fore,

This

which consists in privity, is gone. is undoubtedly law; but the difference

is,

here

is

no use or

new

estate created.
plaintiff

The use of

this recovery is

declared only to the

himself and his heirs, whereby his estate tail is * 845 ] turned into an estate in fee, * which, in Lord Derwent[ water's case, before the judges and delegates, Hal., 6 Geo. same fee, only 1, was solemnly determined to be the same use, and the
delivered from the fetters and restraint laid upon it by the Statute deDonis; and this was agreeable to the resolution of the case of

Abbott

Trim, 7 Anne, C. R, and to the case of Martin ex. dem. Tregonwell v. Strachan, adjudged in B. R, Hal., 16 Geo. 2, and affirmed in the House of Lords in February,
v.

Burton, 2 Salk. 590

(r),

1743

(s).

But I go further
(r) 11 (8)

still,

and hold

that,

even in cases where the state

Mod. 181; Com. Rep. 160. 2 Stra. 1179; 4 Bro. P. C. 486.

290

GARTH
of the reversion

V!

COTTON.

* 846
act of the reversioner as
still

would be so altered by the

to preclude his proper action of waste, yet

his property, in the

timber severed before,

for
it,

would remain, and he might maintain trover

take
off

which

is sufficient to

the force of this objection as ap-

plied to the present case.

Seventh objection.
before the Court
Sir

I shall

that arises recently from the present state of the cause, as

mention but one objection more, and it comes

upon a bid of revivor against the representative of John Hind Cotton, the original defendant: that an action of waste dies with the person; and, if the pla'.ntift had in other respects been in a condition to maintain waste against Sir John Hind Cotton, the party to the articles, it had been gone by his death; that the law is the same as to the action of trover, pari ratione he hath lost his equitable remedy for the waste.
Ansiver.

I admit the law to be

clear, that

an action of waste dies

with the person; and I also admit, that I cannot find any authority or precedent for maintaining an action of trover against an executor

upon

a conversion

by the testator in his

lifetime: though, as to this

is

trover will lie for an executor,

an action of by the defendant in the lifetime of the plaintiffs testator, for which there are many authorities; and it seems difficult to be reconciled to reason and
point, I give no opinion; for thus
certain, that

much

upon

a conversion

justice,

that these remedies should not be mutual, even at

law.
will admit, for

the

common

However, I

argument's sake, that the

* action of trover for the timber, was well as the strict

[*846]
is

action of waste would have been, gone, at the

common

law;
en-

but notwithstanding that, I

titled to the

am

of opinion that the plaintiff

same

relief in this court.

There have been several determinations

force of the rule, actio personalis moritur
at

in this court, where,

by

cum persond,

the remedy

law hath been extinguished

It is well
2, c.

(t): yet equity

hath given the like

satisfaction.
that, at common law, before the statute of 30 and 4 & 5 Will. & Mary, c. 24, s. 12 (v), no action or remedy could be had against the executor of an executor for a devastavit committed by the first executor of the goods of the original

known

Car.

7 (u),

(t)

()
(v)

See now :; & 4 "Wm. 4. c. 42, s. 2. Rep. in part. Stat. Law Rev. Act, 1863. Rep. Stat. Law Rev. Act, 1S67.

291

* 847
testator.

GARTH

V.

COTTON.

But, notwithstanding this, equity did not scruple to get the

better of this artificial

maxim, and decreed an account and satisfaction

against the representatives of such a wasting executor out of his

assets.

This is laid down as a rule in equity by Lord Chancellor Nottingham, in the case of Price v. Morgan, 2 Ch. Cas., fol. 215. His words are, "Although by ihe common law, when the executor wastes, his executor shall not be liable, because it is a personal wrong, it is otherwise here, and the common law will come to it at last; and therefore,

whatever estate of the wasting executor

is

come

to his repre-

which his testator wasted, the personal estate of such wasting executor, in the hands of his executor, shall answer." When Lord Nottingham said the common law would come to it at last, he was a true prophet; for this case was decided in the 28th of Car. 2; and the law was altered by Act of Parliament in the 30th
sentative,

of Car.

2.

In

1 Ch. Cas. 121,

Eton College

v.

Beauchamp and Biggs

(w), the

provost and fellows of Eton were possessed of a rent or pension of 11. 14s. per annum, granted by King Henry VI. to that college,
issuing out of the lands.

The defendant, Biggs, was executor

of

the tenant, and the

bill

was brought

for a satisfaction of the arrears

of rent incurred in his testator's lifetime,

and suggested that the

college did not

[

know

the lands out of which the rents were

issuable, t and so coiild not distrain; and, though the person of the terre-tenant was not chargeable with the rent at law, but only the land by way of distress; yet, forasmuch as the testatrix held the land, and did not pay the rent, it was said, that

* 847

thereby the testatrix's personal estate was augmented, and therefore the Master of the Bolls, Sir Harbottle Grimstone, decreed the
executor to pay the arrears, as far as he had assets of the testatrix. In 2 Mod. 293, Anon. Error, Hil., 29 Car. 2, in the Exchequer

Chamber, beforo the Lord Chancellor and Lord Treasurer, assisted by the two Chief Justices, the case was, the plaintiff had declared against the defendant as executor of Edward Nicholls, who was executor of the debtor.

The defendant pleaded,

that the said debtor

died intestate, and administration of his goods was granted to a 6tranger, absque hoc that Edward Nicholls was ever executor; but

did not say by his plea, " or ever administered as executor;" for, in The plaintiff replied, that before truth, he was executor de son tort.
(u>) S.

C. 1

Eq. Ca. Ab. 32.

292

GARTII

V.

COTTON.

* 848

the administration granted to the stranger, Edward Nicholls possessed himself of divers goods of the debtor, and made the defend-

ant executor, and died; and to this application the defendant deJudgment was given for the plaintiff, in the Court of Exmurred.
chequer, but reversed in the Exchequer Chamber: for an executor
of an executor

de son tort

is

not liable at law; though the

Lord

Chancellor Nottingham said ho would help the plaintiff in equity.

These authorities would be sufficient to establish the point J am But I go further, and hold, that in all cases of fraud the remedy does not die with the person; but the same relief shall be had against an executor out of the assets of his testator, as ought

now upon.

to

have been given against the testator himself.

For, as equity dis-

claims the maxim, that a personal remedy dies with the person whenever the remedy is proper for that jurisdiction, this Court will follow
the estate of the party liable to that demand, and out of that decree
satisfaction (x).

Now, collusion between two persons,

to the pre-

judice and loss of a third, is, in the eye of the Court, the same as a fraud; * and, you have observed, that one prin- [* 848
eipal

judgment of the Court in this case is collusion appearing upon the face of the articles set forth in the
ground
of the

answer.
I have now gone through the arguments and objections arising upon the particular case, and the authorities of law and equity. One general argument remains, of which the counsel on both sides

did in their turns endeavor to avail themselves

mean

the argu-

ment ab inconvenienti, which undoubtedly a new case.

is

of weight, especially in

On
would

the side of the defendants were urged the inconveniences that

arise

up the timber

from making such a precedent, which would tend to lock of the kingdom from coming to market; would create questions between possessors of estates and contingent remaindermen, springing up at a great length of time; and there would be no

knowing where to stop. But let these inconveniences be compared with the inconveniences that must follow, on the other hand, from laying it down that a contingent remainder-man cannot possibly have any remedy in such a case I say, let them bo compared, and the former will weigh noth-

ing, in the opposite scale, against the latter

Thus

far the
(x)

law allows settlements of estates to go, and no

See Phillips
v.

fur-

Homphray, 26 Ch. D.

439, 473.

203

* 849
ther;

GARTH
and
it

V.

COTTON.

hath been found to be a convenient medium between Most too flux and unstable a condition of things. and perpetuities settlements; such under are kingdom this in estates family of the and it frequently happens that the first remainderman of the inheritance vested is a remote relation remote in blood, and remote

in the prospect of succession, perhaps after

fifty

years contingent

limitation of that inheritance.

what has been done in this case should be determined to be done impune, without any possible recompense in a court of equity, what havock would it make, and what a licence would be proclaimed. Every remainder-man in fee, though after ever so many contingent limitations, might, by collusion with the tenant for life, or
If

* 849] years in possession, or perhaps of his under tenant, strip the estate, and convert the value of it to their own use. Suppose an estate in the great timber counties of England, in the
[

north, or in Cornwall, where the principal value may consist in timber or mines, all that value may be exhausted and dissipated before a first

son
of

is bom; and when he is born, he may find nothing but the shell what was intended for a lasting support of a family of honour! It will be no answer to this, to say the trustees to preserve con-

tingent remainders

may

bring a

bill for

an injunction

to stop this

completely executed before they can know whether they are they before possibly nay, it, of know trustees or not for it most frequently happens, that trustees to preserve contingent uses are inserted in settlements and wills without
mischief
;

the mischief

may be

their being

made acquainted with

it

it.

From hence
relief

is

evident that this will be but a shadow of a

remedy, unless the Court goes further, and builds a more adequate

upon the same

principles.

here I cannot help addirg, that this becomes of the greater importance, from the practice and abuses of the times into which

And

we are fallen, when show themselves .in

impose upon

so

many new inventions and

contrivances daily

courts of justice, to supply or to tempt, or to the extravagance and necessities of tenants for life, to

the destruction of their families. These considerations bring to

my mind the

last

reasoning of the

judges in Fermor's case, 3 Co. 79, a; and with that I will conclude. That resolution was quite new, and of the first impression, and was contrary to the letter of the Statute of Fines (4th Hen. 7, c. but the book says" Lastly, the judges in this resolution did
24);

294

GARTH

V.

COTTON.
if

* 850

greatly respect the general mischief which would ensue

fines, levied

such
in-

terests,

by practice and covin of person who had particular should bar those who had the inheritance" ( iju

is, I must decree satisfaction to the plainwhat the late Sir John Hind Cotton received out and if the original limitations * had been [ * 850 ] of his assets still subsisting, I must have directed this money to have been laid out in the lands to the same uses but as these are now barred, and the plaintiff is tenant in fee, the money is his own. In this, the question of interest is material, and I have considered it the principal money is reckoned by the answer at 1000/.; the cause being heard on bill and answer, and the plaintiff having at the bar prayed interest from the time it was received, in respect of the possible growth of timber. But there being no proof, it does not appear what was the condition of the timber whether, by the time the plaintiff's father died, in 1727, it might not have been decayed, and of little value Avhat might have been exhausted in repairs, or destroyed by tempests or accidents or what young timber may have grown up in its place in the meantime from these considerations, and as this

The

result of the whole

tiff

fur

is

new

case, I

do not think
bill.

fit

to give interest further

back than

the filing of the

" His

Lordship declared

(z), that,

on

all

the circumstances of the

case, the plaintiff is entitled to recover satisfaction in this court for

so

much

value of his inheritance as the defendant's testator ex-

hausted and received by virtue or colour of the articles entered into between him and the plaintiff's late father, who was tenant only for
the term of ninety- nine years,
if

he should so long live; and

it,

orin-

dered that the Master, to

terest

whom

he referred

should compute

admitted by the answer of Sir John Hind Cotton, deceased, to have been received by him, from the time
1000/.,

on the sum of

of filing the plaintiff's

bill,

after the rate of four' per cent, per an-

num, and tax the plaintiff his costs; and what thatshall be so found due to the plaintiff for the 1000/., interest and costs, be considered as a demand by simple contract on the estate of Sir John Hind Cotton, deceased, and be answered and paid to the plaintiff, by tbe defendants, the executors, they having admitted assets of their testator, Sir John Hind Cotton, by their answer to the bill of revivor."
{y)
(*)

See 3 Co. 70, a. Decree taken from

:>

Atk. 758; Reg. Lib.

17">:2,

A.,

fol.

-210.

205


* 851
[

GARTH

V.

COTTON.

v. Cotton (the judgment in which is said by Lord Leonards, in his learned work upon Powers, to be one of the ablest ever delivered) is here given complete, the statement of the case and the arguments having been taken from 1 Ves. 524, 546; the judgment from 1 Dick. 183, where it is stated to have been copied from Lord Hardwicke s MS. and the decree from 3 ]

* 851

* Garth

St.

Atk. 758.

Under the devise, in Garth v. Cotton, to tho plaintiff's father, for ninety- nine years, if he should so long live, without impeachment of waste, voluntary waste excepted, Lord Hardwicke considered him as punishable for wilful waste, and that he had no present right to or interest in the timber, other than the mast, and shade, and necessary botes, the exception of "voluntary wastes" rendering the preceding part of the clause "without impeachment of waste" (which, standing alone, would have conferred upon him the power of felling the timber), of no effect. See also Higginbotham v. Haickins, 7 L. R. Ch. App. G76; Lowndes v. Norton, [" Waste Ch. D. 139. is either voluntary or permissive. Voluntary waste consists in doing something which the owner of the limited estate has no authority to do, such as cutting timber, opening mines, and so forth. Permissive waste consists in the omission of acts which it is the duty of the particular tenant to perform, as if he permits buildings to go to decay by neglecting to repair them." Bisoham's Eq. Sec. 432.] See the remarks upon Garth v. Cotton, in the case of Vincent v. Spicer, 22 Beav. 380, where Sir John Romilly, M. B., terms, it "a very strong case" (p. 385). The facts there were briefly as follow: Sir F. Vincent, on his marriage, settled his estate on himself for life, "without impeachment for any manner of waste, save and except spoil or destruction, or voluntary or permissive waste, or suffering houses or buildings to go to decay, and in not repairing the same." It was held by his Honor, that Sir F. Vincent was entitled to cut all such timber (except ornamental) as the owner of the estate in fee simple, having due regard to his present interest and to the permanent advantage of his estate, might properly cut, in a due
course of management. A direction that a lessee of mines is "not to be dispunishable with waste" will be rejected as repugnant to a power to let an estate with "tae mines and minerals:" Daly v. Beckett, 24 Beav. 114. The very great importance of the limitation to trustees to preserve contingent remainders, the history of which is so admirably given by Lord Hardwicke, is well illustrated in Garth v. Cotton; for as the plaintiff's father was only tenant for years, if there had been no such limitation, all the contingent remainders woiild have been void, for want of an estate of freehold to support them; and Sir John Hind Cotton would have had the immediate freehold, as well as the inheritance in him, which would have given him a clear right
to

commit waste.
29G

OARTII

V.

COTTON.

* 852

If tho plaintiff's father bad been tenant for life, and there had been no Bucb limitation to the trustees, tbo plaintiff could, oven then, have been entitled to no remedy, *because Lis [ *852 whole use in the land, whilst it remained in contingency, would have been in tbo power of tbo tenant for life to bar by fine, feoffment, orsurrendertothe remainder-man vested; and there could have been no pretence for tho Court to interpose, to preserve or restore to birn part of that inheritance, the whole of which was in tho
]

for life. of tho plaintiff's equity depended entirely upon tbo estate limited to the trustees to preserve contingent remainders; it was their duty to preserve tho inheritance, consisting of the land,

power of tho tenant

Tho foundation

Tho trustees might have brought a bill timber, and mines, entire. to stay waste against the act of the plaintiff's father and the remainder-man; and Lord Hardwicke expressly decided, that their neglect or ignorance of their duty should not prejudice the tenant in tail not in esse at the time when the waste was committed. It was, indeed, admitted by Lord Hardwicke, that where there is tenant for life, or for years, subject to waste, if timber is blown down by accident, or cut down by the tort of a stranger, or of the tenant for life alone, the owner of the first remainder of inheritance vested should have tho benefit of it; because, he observes, '"The common law doth not, nor can, consider the contingent uses as having existence till they happen: therefore, according to Leicis Bowles's Case, 11 Co. 79, and Udal v. Udal, Aleyn, 81, an estate in contingency is as no estate till the contingency happens. And when the trees are severed, the property must vest immediately in somebody, and that can only be in the first remainder-man of inheritance vested; and on the foundation of that property, be may maintain This is his right at law; and there is in the cases trover for them. put of trees fallen by accident, or merely by the wrongful act of a stranger, or of the tenant for life, no ground of equity to take it from him." See Whitfield v. Bewit, 2 P. Wms. 240 and Duke of Newcastle v. Vane, there cited. In Garth v. Cotfon, the timber was not blown down by accident, or cut by the tort of stranger, or of a tenant for life alone, but was felled by the tenant for years and remote remainder-man, in collusion together, who, although at law entitled to the proceeds arising from the sale, were in equity (which has always interfered in matters of waste more extensively than courts of law) held accountable to the tenant in tail not then in esse, because they bad collusively committed an act which greatly damnified him, and for which ho had no remedy at law. The same result would have followed had Garth been tenant for life instead of tenant for years. [In many parts of the United States cutting timber by a tenant for life would be regarded as proper, for the purpose of clearing the land: Lynn's Appeal, 7 Casey, 44; Alexander?-. Fisher. 7- Ala. 514; Keeler v. Eastman, 11 Vt. 293; Drown v. Smith, 52 Me. 141; Gardiner v.
297

* S53

GARTH

V.

COTTON.

Dering, 1 Paige's Ch. 573; Crawley v. Timberlake, 2 Ired Eq. 400; Moorehouse v. Cotheal, 2 Zab. 521; Williams on Real Property, 23.]

Upon the same principle, where there was a limitation in a settlement to A. for life, remainder *to trustees to preserve contingent remainders, remainder to his first and other sons in tail, remainder to B. for life, remainder to his first and other sons in tail, with reversion in fee to A., A. cut down timber; but Lord Hardwicke, upon a bill being filed by B., the second ten[

* 853

ant for life, granted an injunction, observing, that the trustees to preserve contingent remainders might have brought a bill against the defendant to stay waste, for the benefit of the contingent remainders; and that the plaintiff could do so, because though he had no right to the timber, yet if the defendant, the first tenant for life, should die without issue, he would have an interest in the mastand shade of the timber: Peryvt v. Perrot, 3 Atk. 94; Davies v. Leo, [Even in the 6 Ves. 784; Birch-Wolfe v. Birch, 9 L. R. Eq. 683. United States the tenant for life must not cut down more timber than is necessary for the enjoyment of his estate: Smith v. Poyas, 2 Dessaus, 65; Johnson v. Johnson 2 Hills, Ch. 277; Livingston v. Reynolds, 26 Wendell, 115. He is, however, entitled to reasonable estovers for necessary repairs, agricultural implements and fire- wood.] By the Real Property Amendment Act (8 & 9 Vict. c. 106), s. 8, it is enacted, "that a contingent remainder, existing at any time after the 31st day of December, 1844, shall be, and if created before the passing of the Act shall be deemed to have been, capable of taking effect, notwithstanding the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner, in all respects, as if such determination had not happened. Suppose, in a case coming within the Act, the limitation to trustees to support contingent remainders is omitted, could either a tenant for years, or a tenant for life, with the person in whom the first remainder of the inheritance is vested, cut the timber without being liable to be called to an account by the contingent remaindermen when they come in esse ? In Garth v. Cotton, Lord Hardwicke, as before observed, expressly admits, that if there had been no trustees to support contingent remainders, in neither of these cases It is, however, presumed that in the could relief be had in equity. latter of these cases, that is to say where there is a tenant for life, relief might now be had by the contingent remainder-man, because his inheritance, of which the timber is part, is no longer in the power of the owner of the previous estate of freehold. But in the former of these cases, that is to say where there is a tenant for years, no relief could be had, because, irrespective of the Act, 'the contingent remainders would be void for want of an estate of freehold to

support them. Where, therefore, the legal fee was not vested in trustees, a limi-

298

GARTH

V.

COTTON.

S54

tation to trustees to support contingent remainders might until the passing of 40 & 41 Vict. c. 33 be necessary, when there was only a previous estate for years; and it is conceived that even where there was a previous estate of freehold, it might still be useful,
as the trustees to support contin gent ^remainders could, [*854 by an application for an injunction before the contingent remainder-man came into esse, protect his estate from waste. By 40 & 41 Vict. c. 33, it is enacted that "every contingent remainder created by any instrument executed after the passing of this Act (2 August, 3877), or by any will or codicil, revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid
|

as a springing or shifting use, or executory devise, or other limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use, or executory devise, or other execuSect. 1. tory limitation." And in addition to those mentioned before there are other trees which are timber trees by custom in some parts of the country, and Per Baggallay, L. J., In not in others, such as birch and beech. re Harrison's Trusts; Harrison v. Harrison, 28 Ch. D. 227. It has, however, been repeatedly decided that larch trees are not

timber.

lb.

What a mounts to waste at law, by wJiom it may be committed, and Waste at law has been briefly the remedies at law in respect thereof.,] defined as "any spoil and destruction done, or allowed to be done, to houses, woods, lands, or other corporeal hereditaments by the tenant thereof, during the continuance of his particular estate." 3 [In many of the United States remedies Steph. Coinrn. 521, 5th ed.

by statute, in some of them tho place wasted being forfeited, and damages recovered, in others the remedies being simply an action for damages: Washburn on Real Property, 22, note.] Waste as distinguished from trespass, could only be committed by a limited owner, between whom and the person complaining thereof [Technical waste could only exist there was a privity of estate. when the party committing it was lawfully in possession, and if his claim was hostile, the remedy by injunction for waste, strictly speaking did not lie: Storm c. Mann, 4 Johns. Ch. 21. Where special circumstances exist, as for instance, if tho party in possession is insolvent and is unable to respond in pecuniary damages, or where his actions are such as to deprive the land of its chief value, an injunction may bo issued to protect the property pending litigation: Hicks y. Mitchell, 15 Cal. 107; Erhardt v. Board. 113 TJ. S. 537; Peak v. Hayden, 3 Bush, 125; Kinsler v. Clarke, 2 Hill Ch. 617; Meadow Valley v. Dodds, G Nevada, 201.]
for waste are given

2?9

* S55

GARTH

V.

COTTON.

At common law, tenants for life, by operation of law, viz., tenant dower and tenant by the curtesy, were punishable for waste: Lewis Bowles's Case, 11 Rep. 81, 82; Co. Litt. 53 a. And other tenants for life and for years became so by the Statute of Marlebridgo (32 Hen. 3), and the Statute of Gloucester (5 Edw. 1). As timber trees are part of the inheritance, waste might bo committed by the tenant for life or years in felling or topping them, or doing any act whereby they might decay. And it should bo borne oak, ash, and elms in all in mind that by timber trees are meant places, and in some particular counties, by local custom, other trees Honywood v. Honywood, 18 L. R. Eq. are considered as timber. 30G, 309, 310; Trower on Prevalence of Equity, p. 25. A tenant for life may, however, cut down timber trees * purpose of allowing [ *855] under twenty years of age for the the proper development and growth of other timber in the same wood or plantation, for that is not waste, but is in fact for the improvement of the estate, and not for its destruction. (Honywood v. Honywood, 18 L. R. Eq. 310; and see Gordon v. Woodford, 21 Beav. 603; Bateman v. Hotchkin, 31 Beav. 486; Earl Cowley v. He may also fell fir trees under twenty Wellesley, 1 L. R. Eq. 656. vears of age for the purpose of thinning them: Pidgeley v. Rawling,
in

2 Coll. 275.
for life also of a timber estate, that is to say, of an which is cultivated merely for the produce of saleable timber, and where the timber is cut periodically, may fell it in the ordinary The reason for the distinction between ordinary timber and course. timber growing on a timber estate is this, that as cutting the timber

The tenant

estate

is

a mode of cultivation, the timber is not to be kept as part of the inheritance, but part, so to say, of the annual fruits of the land; and in these cases the same kind of cultivation may be carried on by the tenant for life that has been carried on by the settlor on the estate, and the timber so cut down periodically in due course, is looked upon as the annual profits of the estate and therefore goes to the Per Sir G. Jessel, M. R., in Honywood v. Honytenant for life.

wood, 18 L. R. Eq. 310. A tenant for life may also cut underwood in due course (Hampton v. Hodges, 8 Ves. 105; Humphreys v. Harrison, 1 J. &W. 5S1), and willows, leaving the stools or butts: Phillipps v. Smith, 11 M.
for life moreover may cut down all trees, not being timber (Honywood v. Honywood, 18 L. R. Eq. 310), with the exception, that he must not cut down those trees which, being under twenty years of age, are not timber, but which would be timber if they were For if he cuts them down, he commits over twenty years of age. [Courts lb. 310. waste, as he prevents the growth of the timber. of Chancery go to greater lengths than the law courts in preventing waste. "It is a wholesome jurisdiction, to be literally exercised in the prevention of irreparable injury and depends on much latitude

& W. 589. A tenant

300

OARTII
of discretion in the court,"

V.

COTTON.

856

Kane v. Vanderburgh, 1 Johns. Ch. 4; Bowie, 1 Bland, 593; and sen, as to this jurisdiction, Watson v. Hunter, 5 Johns. Ch. 109.] Under the Settled Land Act, 1882 (45 & 40 Vict. c. 38), The tenant for life, or any of his successors in title, having under tho settlement a limited estato or interest only in the settled land, shall not cut down or knowingly permit to be cut down, except in proper thinning, any trees planted as an improvement, under the foregoing Sect. 28, sub s. 2 provisions of this Act." A tenant for life, moreover, would commit waste by digging pita for gravel, lime, clay, brick-earth, stone or the like (except for reHill
V.
' ;

mines of metal, coal, or the like, hidden in the earth, which were not open when the tenant came in (Co. Litt. 53, b. Viner v. Vaughan, 2 Beav. 400); but ho has a right to contimio tho working of pits or mines previously opened, * though not, perhaps, whore they are old and abandoned, [ '"850 ] or where mere preparations had been made for working them (Clavering v. Clavering, 2 P. Wms. 389; Viner v. Vaughan, 2 Beav. 466); or, perhaps, where tho minerals had only been worked for somo definite and restricted purpose, e. g., for tho purpose of fuel, or repair to some particular houso (Elias v. Snowdoyi Slate Quarries Co., 4 App. Cas. 405); secus where tho use had been genlb. But it eral, for uso as well as salo is a perception of profits. 6eems that he could make new pits or shafts in working a mine already open, in order to pursue the same: (Clavering v. Clavering, -2
pairs), or for

P. AVms. 388), or even a new (Spencer v. Scurr, 31 Beav. 334) vein. See also Bagot v. Bagot, 32 Beav. 509. [An injunction will be granted against a 'person who is in tho hostile possession of a mine, for in such a case the injury goes to tho very substance of the esSo also, any injury which cannot be adequately repaired by tate. damages is a sufficient foundation for an injunction: Kerr on Injunctions, 199; U. S. v. Parrot,

McAll. C. C. 271.]

So, likewise, to enable a termor to

work mines

it

must be shown

that the reversioner had commenced working the mines with a view to making a profit, and there is no difference in this respect between a mine and a quarry: Elias v. Griffith, 8 Ch. D. 521; affirmed nom. Elias v. Snoivdon Slate Quarry Co., 4 App. Cas. 454, 403. Under the Settled Land Act, 1882 (45 & 40 Vict. c. 38), power is given to the tenant for life to grant building, mining, and other leases for ninety-nine, sixty, and twenty-one years for any purpose whether involving tcaste or not (Sect. 6, subject to the regulations therein mentioned Sects. 7, 8, 9), with variations in building and mining leases, according to the circumstances of the district, upon

application to the Court.

Sect. 10.

And now when

Act, 18S2, " or in work, unless a contrary intention is expressed in the settlement; there shall be from time to time set aside, as capital money

mining lease is made under the Settled Land whether the mines or minerals leased are already opened
a

301


* S57

GARTH

V.

COTTON.

where arising under this Act, part of the rent as follows, namely //!< tenant for life is impeachable for icaste in respect of minerals, three-fourth parts of the rent, and otherwise fourth part thereof, and in every case the residue of the rent shall go a3 rent and profits."
Sect. 11.

This provision for setting aside as capital is in effect the same as that in the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, s. 4 (3). See Seton, Dec. 1490, 4th Ed. As to what is a contrarv intention, see In re the Duke of Neivcastle's Estates, 24 Ch. D. 129. The tenant for life executing improvements, under Sect. 28 of the Settled Land Act, 1882, and his estate after his death, are liable for damages occasioned by his non-compliance with the requisition of that section, or acting in contravention thereof (5); and the tenant for life is also protected by a subsequent section from tbe consequences of waste in so doing See Sect. 29, which enacts * 857 ] * " that the tenant for life, and each of his successors in [ title, having, under the settlement, a limited estate or interest only in the settled land, and all persons employed by or under contract with the tenant for life or any such successor, may from time to time enter on the settled land, and without impeachment of waste by any remainder-man or reversioner thereon execute any improvement authorised by this Act, or inspect, maintain, and repair the same and for the purposes thereof, on the settled land, do, make, and use all acts, works, and conveniences proper for the execution, maintenance, repair, and use thereof, and get, and work freestone, limestone, clay, sand, and other substances, and make tramways, and other ways, and burn, and make bricks, tiles, and other things, and cut down and use timber, and other trees not planted or left standing for shelter or ornament." It may be here mentioned with regard to leases authorised by the Court, under Sect. 4 of the Settled Estates Act, 1877 (40 & 41 Vict, c. 18), "no such lease shall authorise the felling of any trees, except so far as shall be necessary for the purpose of clearing the ground for any buildings, excavations, or other works authorised by the lease." lb. Where an estate is vested in trustees, the equitable tenant for life cannot cut timber without their consent {Dentonx. Denton, 7 Beav. 388; Pugh v. Vaughan, 12 Beav. 517), but if he do so, the remainder man will have a right to compensation, not only out of the rents as against the tenant for life, but also as against his incumbrancers: Briggsx. Earl of Oxford, 1 Jur. N. S. 817.

Where, however, in an instrument making a person tenant for a clause is inserted that he is to be "without impeachment of tcaste," he may fell timber and open new mines or pits (Co. Litt. 220 a, and the note 1), and will have full property in the produce: Lewis Bowles's Case, 11 Kep. 83, 84. But if trustees are made unimpeachable for waste, although at
life,

302

GARTH

V.

COTTON.

* 858

law thoy might cut timber in the same mannor as a tenant fur life without impeachment of waste, a Courtof equity will require them to act in their trust with the same discretion as the Court itself would act: The Marquis of Downshire v. Lad// Sandys, 6 Ves. 15. In the case of infants, the trustees, under the Conveyancing and Law of Property Act, 1881 v 44 & 45 Vict. e. 41), are to "manage, or superintend the management of the land, with full power to fell timber, or cut underwood, from time to time, in the usual course, for sale, or for repairs, or otherwise, and to continue the working of mines, minerals, and quarries, which * have [ * 858] usually been worked; but so that where the infant is impeachable for waste, the trustees shall not commit waste, and shall cut timber on the same terms only, and subject to the same restrictions, on and subject to which the infant could, if of full age, cut the same." Sect. 42, sub-s. 2. As to the mode in which the trustees are to deal with and invest the income of the land, including the produce of the sale of limber and underwood, see Sect. 42, sub-ss. 3-8. Moreover, a tenant in tail, after possibility of issue extinct, although a mere tenant for life, may, by reason of the inheritance which was once in him, commit waste like a tenant for life with out impeachment of waste (Williams v. Williams, 15 Ves. 419; 12 East, 201)); but a person to whom he conveys his estate will be considered as a mere tenant for life: Co. Litt. 28 a.; George Ap- Rice's Case, 3 Leon. 241.
1

life,

rector or vicar is in the same position as an ordinary tenant for and has no right to fell timber except for necessary repairs to the vicarage-house, buildings, and premises {Duke of Marlboro unit

John, 5 De G. & Sm. 174); but not for the purpose of making a general repairing fund (Sowerby v. Fryer, 8 L. R. Eq. 417, 422 ). And he may, perhaps, have a right to dispose of timber, and apply the proceeds in getting some other timber for repairs at a more convenient place. lb. For it would be absurd to make a man who has cut down timber on an estate, drag that self-same timber the whole distance to the spot it may be half a dozen or ten miles off- -where
v. St.

wanted. For it will come to the same thing whether he uses the specific timber he has cut upon the woodwork repairs, or whether he sells it and buys other timber of equal value to be applied for the same purpose. lb. And see Wither v. Dean and CJiapter of Winchester, 3 Mer. 421, 426; Knight v. Mosely, Amb. 170. And it seems that not only may the patron of a living proceed against a rector or vicar for an injunction to restrain the improper felling of timber, but notwithstanding the remarks in Knightr. Mosely, Amb. 176, and Holden v. Weekes, 1 J. & H. 278, he may proceed against them for an account of the proceeds of timber improperly felled, in order that they may be invested for the benefit of the advowson (Soiverby v. Fryer, 8 L. E. Eq. 423); at anv rate it is clear that where the timber has been improperly felled, but not
it is

303

* 859

GARTH

V.

COTTON.

sold, by the rector or viear, the patron may obtain an order from the Court that the timber may be sold, and the proceeds brought / b. into Court. And the ordinary may take proceedings to prevent waste by collusion betwee'n the patron and the incumbent: Holden v. Weekes, 1
J.
[

&

278.

"The remedies for waste at law were by the writ of waste (abolished by 3 & 4 Will. 4, c. 27, s. 36), by an action on the case for damages, by trover for the trees (which became the property of the remainder-man as soon as they were felled), or by an action for money had and received for the produce of the sale: Seagram v. Knight, 2 L. E. Ch. App. 032. In cases of waste, however, resort was generally had to Courts of
]

*S59

Equity, not only because previous to 17 & 18 Vict. c. 125, s. 79, they had exclusive jurisdiction by injunction to interfere to prevent the threatened commission of waste, or to forbid its continuance, and had alone full power to take accounts, but also because the law was defective and afforded no remedy in some cases of what was termed legal waste, and in other cases it took no cognizance whatever of what was called Equitable waste. It is now proposed to consider cases of equitable waste, first observing that under the new procedure, 'Tn all cases of actions for the prevention of icaste or jwotection of property, one person may sue on behalf of himself and all persons having the same interRules of the Supreme Court, 1883, Order XVI. [159] 37. ests."
Interposition of Equity to prevent waste, where there teas no legal remedy.] One of the first instances of the interposition of equity, where an action of waste could not be maintained at law, seems to have been the case put by Lord Hardwicke in Garth v. Cotton, of a tenant for life, with remainder to another for life, with remainder In such case the remainder-man in fee, or over in fee, or in tail. in tail, could have no action of waste; because the plaintiff in the action must recover the place wasted, and that would be an injustice to the remainder for life, which is not forfeited; and, if it should be recovered by the owner of the inheritance, it would never go back again. The remainder-man might, it is true, have another However, in equity, to use the words action of trover for the trees. of Lord Hardwicke, "this Court sustains a bill for an injunction, and this abantiquo, according to the case in Moore, 544; where Lord Ellesmere says, he had seen a precedent for it so long ago as See also, Tracy v. Tracy, 1 Yern. 23; in the reign of Richard II." Farrant\. Lovel, 3 Atk. 723; and an injunction will be granted at the suit of a mesne remainder-man for life, without making the owner of the inheritance a party: Dayrell v. Chamjmeys, 1 Eq. Ca. But see Mollineaux v. Powell, 3 P. Wms. 268, n. Ab. 400.

Upon the same principle as Garth v. Cotton, where there is tenant for life subject to waste, remainder fcr life dispunishable for
304

GARTH

V.

COTTON.

* 801

waste, remainder in fee, the *Court will not suffer an agree- [ * 8G0 ] ment between the two tenants for life to commit waste to take place against the remainder man, before the time comes when the second tenant for life's power commences: Robinson v. Litton,

3 Atk. 210.
So, a ground landlord may have an injunction to stay waste against an underlessee, who holds by lease from the original lessee: Warrant v. Lovel, 3 Atk. 723. In the case of an executory devise, Lord Hardwicke, in Robinson v. Litton, 3 Atk. 209, said that he should doubt whether an heir-atlaw ought not to be restrained from committing waste in the meanIn that case the testator devised lands to his son and his time. heirs, but in case he should nut attain twenty-one, and die without issue, then he gave the lands to his daughters, and directed them to be sold and the money to be divided among the daughters. The son, who wanted three quarters of a year of twenty-one, intended cutting down 3000 worth of timber: but Lord Hardwicke granted an injunction to restrain him, and at the hearing made that injunction perpetual, observing, "It is pursuing the intention of the testator, and preserving the value of the estates intended to go to his daughters." And Lord Eldon,va. the case of Stansfield v. Habergham, 10 Ves. 278, stated it to be the doctrine of the Court, that where there is an executory devise over, even of a legal estate, a Court of equity will not permit the timber to be cut down, more especially not, if there is an executory devise of a trust estate. Recent cases, however, appear to decide that a devisee in fee with an executory devise over on his death without leaving issue is dispunishable for legal waste, but he must not commit equitable waste (Turner v. Wright, 1 Johns. 740, 2 De G. F. & Jo. 234): and it has also been decided that although a tenant in fee, subject to an executory devise over, is not impeachable for legal waste, it is competent to a testator to render him so by express words: Blake v. Peters. 10 W. R. (V.-C. K.) 826; 1 De G. Jo. & Sm. 345. So, where a mortgagee in fee in possession commits waste by cutting down timber, and the money arising by the sale of the timber is not applied in sinking the interest and principal of his mortgage, the Court, on a bill brought by the mortgagor to stay waste, will grant an injunction: Farrant v. Lovel, 3 Atk. 723. Ordinarily a mortgagor in possession may be restrained by the mortgagee from felling timber (Farrant v. Lovel, 3 Atk. 723: Us born v. Usborn, 1 Dick. 75: Humphreys v. Harrison, 1 J. & W. 581; King v. Smith, 2 Hare, 243; Simmons v. Shirley, 6 Ch. D. 173); but not, it seems, unless the mortgagee shows that the security would be insufficient or scanty without the timber Hippesleyv. * Spencer, 5 Madd. 422: King v. Smith, 2 Hare, 239. [ * 861
]

[Triplett

Parmalee, 16 Neb. 649. If the security is in sufficient, an injunction may be granted against the mortgagor: Parsons v. Hughes, 12 Md. 1; Nelson v. Pinegar, 30, 111. 473; * 20 WHITE ON EQUITY. 305
v.

* 862

GARTH

V.

COTTON.

Robinson v. Russell, 24 Cal. 467; Cooper v. Davis, 15 Conn. 556; Salmon v. Clagett, 3 Bland, 125.] And a mortgagor in posession may cut underwood in the ordinary course, that is to say, in a husbandlike manner, at the usual seasons, and of the usual growth (Hampton v. Hodges, 8 Ves. 105). Suppose the course is to cut the underwood every seven years, the mortgagor in possession cutting in that way does not commit waste. If, however, the mortgagor were to cut the underwood at unlb. seasonable times, or of improper growth, he would be restrained from doing so. lb. And where the mortgagor was a bankrupt, an injunction was granted on the right of the mortgagee to have the estate sold in the same plight in which it was at the bankruptcy, and to prove for the
rest of his debt.
lb.

of Property Act, 1881 (44

41), "A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have, amongst others, the following powers to the same extent as if they had been in terms conferred by the mortgage deed, but not further, power, while the mortgagee is in possession, to cut and namelv, sell timber and other trees ripe for cutting, and not planted or left standing for shelter or ornament, or to contract for any such cutting

Now, however, by the 19th Section

of the
c.

Conveyancing and

Law

&

45 Vict.

and sale, to be completed within any time not exceeding twelve months from the making of the contract." Sub-s. 4.
It seems to be now settled, although the contrary opinion seems formerly to have prevailed (Parteriche v. Poivlet, 2 Atk. 383), that the Court will not interfere to prevent or remedy permissive waste: Lord Castlemain v. Lord Craven, 22 Vin. Ab. 523, tit. Waste, pi. 11; Wood v. Gaynon, Amb. 395; The Marquis of Lansdowne v. The Marchioness Dowager of Lansdowne, 1 J. & W. 522; Poivysx. Blagrave, 4 De G. Mac. & G. 448; White v. Cann, 1 Ir. Ch. Rep. 205; but see
v. Baylis, 2 Mer. 408. case of Re Skingley (3 Mac. & G. 221) was founded on the See also White express obligation of the lunatic to keep in repair. v. Cann, 1 Ir. Ch. Rep. 205. But an account would be granted where there is an express covenant from the tenant for life to repair: March v. Wells, 2 S. & S. 87. And a tenant for life taking houses under a will subject to a condition to keep them in repair, will be liable on an action in respect his of permissive waste by non-repair of these premises, and after^ death his executors also will be liable: Woodhouse v. Walker, 5 Q.

Caldwell

The

B. D. 404. As to the legal liability for permissive waste, see Greene v. Cole, 2 Wms. Saund. 252 and notes; and Harnett v. Maitland, 16 M. & W.

257.

*862

Under the 28th Section

(45

of the * Settled

Land
life

&

46

Vict.

c.

38), (1)

"The tenant^or

Act, 1882 and each of

his successors in title having,

under the settlement, a limited estate

306

GARTH

V.

COTTO.V

* 8G3

or interest only in the settled land, shall, during such period, if any, hs the Land Commissioners by certificate in any case prescribe, maintain and repair, at his own expense, every improvement executed under the foregoing provisions of this Act, and where a building or
in its nature insurable against damage by fire ^comprised in Hie improvement, shall insure anil keep insured the same al bis own expense*, in such amount, if any, as the Commissioners by certificate in any case prescribe." (3) ''The tenant for life, and each of his successors as aforesaid,

work

shall,

from time to time, if required by the Commissioners, on *>r without the suggestion of any person having, under the setth ment, an, estate or interest in the settled land in possession, remainder or otherwise, report to the Commissioners the state of every improvement executed under this Act, and the fact and particulars of fire insurance, if any." (4) "The Commissioners may vary any certificate made by them under this section, in such manner or to such extent as circumstances appear to them to require, but not so as to increase the liabilities of the tenant for life, or any of his successors as aforesaid." (5) '"If the tenant for life, or any of his successors as aforesaid, fails in any respect to comply w-ith the requisition of this section, or does any act in contravention thereof, any person having, under the settlement, any estate or interest in the settled land in possession, remainder or reversion, shall have a right of action, in respect of that default or act, against the tenant for life; and the estate of the tenant for life after his death, shall be liable to make good to the persons entitled under the settlement any damages occasioned by that default or act." See Sect. 29, ante, p. 856.
Interference of Equity in cases of equitable waste of a malicious destructive character by tenant for life without impeachment of At common law, the clause, without impeachment of waste, waste.] only exempted a tenant for life from the penalty of the statute, the recovery of treble value, and the place wasted, not expressly giving the property of the thing wasted; but in Lewis Bowles's ( 'ase 1 1 Rep. The 79), it was determined that* these words also gave the property. necessary consequence of which was, that, in general, unless under particular circumstances, as, for instance, where the exemption from liability to waste was made subordinate to a discretionary power in trustees to fell timber [Kekewich v. Marker, 3 Mac. & G. 311 and see Briggs v. Earl of * Oxford, 5 De Gex & Sm. [ * 863] 156), a tenant for life without impeachment of waste, could not bo restrained in equity from committing ordinary waste; for that would be to determine that he should not make use of the property which the law allowed him. But, after the decision in Lewis Bowles's Case, several instances were considered, in which this very large power might-be exercised contrary to conscience, and in an unreasonable manner, by a tenant for life; as, where his act was to the

and

307

* 864

GARTH

V.

COTTON.

'

destruction of the thing settled, and equity interfered: See Aston v. Aston, 1 Ves. 265. [If the matter that is complained of is a trifle the courts will not The ingredient of malice does not appear to be necessary interfere. to constitute equitable waste, such waste may be committed although no bad motive exists: Hawley v. Clowes, 2 Johns. Ch. 122.] A leading authority upon this subject is Vane v. Lord Barnard, 2 Vern. 78, commonly called Lord Barnard's Case; there Lord Barnard, who, under the marriage settlement of his son, was tenant for life without impeachment of ivaste of Raby Castle, with remainder to his son for life, having taken some displeasure against his son, got two hundred workmen together, and of a sudden, in a few days, stripped the castle of the lead, iron, glass doors, boards, &c. Lord Coivper granted an injunction to stay to the value of 3000Z. committing of waste by pulling down the castle, and decreed that the castle should be put into its former condition; and, for that purpose a commission was to issue to ascertain what ought to be repaired, and a Master was directed to see it done at the expense of See S. C, Lord Barnard, and decreed the plaintiff his costs. Prec. Ch. 454; Gilb. Eq. Rep. 127; 1 Eq. Ca. 399; 1 Salk. 161; and see Duke of Leeds v. Earl of Amherst, 20 Beav. 239. But where a tenant for life without impeachment of waste, has pulled down an old mansion and used the materials in building a better mansion-house in a more desirable position, his estate has been held not to be liable to account for the value of the materials of the old house: Morris- v. Morris, 3 De G. & Jo. 323, post, p. 866. [Acts which even increase the value of the estate may amount to Such waste is called meliorating waste: Kane v. Vanderwaste.

burgh, 1 Johns. Ch. 4.]

the principle of restraining a tenant for life without imof waste from exercising his legal power contrary to conscience, and in an unreasonable manner, Lord Hardwicke said, that if tenant for life without impeachment of waste, pulled down farm houses in general he would no more scruple restraining him, than he would from pulling down the mansion-house (unless he pulled down two to make into one, in order to bear the burthen of but one), it tending equally to the destruction of the thing settled Aston v. Aston, 1 Ves. 265. So likewise, if he should grub up a wood settled so as to destroy the wood absolutely, he should restrain him, as it would be what is termed* in Abrahal v. Bubb, (2 Freem. 54) extravagant * 864 ] and humorsome waste : lb. See * also Dunn v. Ryan, 1 [

Upon

peachment

I.

R. Eq. 143.

Although the Courts of Equity would not, in the absence of fraud and where there was no privity between the parties, interfere at the instance of a party claiming real property under a legal title, by restraining ordinary waste by a defendant in possession thereof, they would grant an injunction to restrain waste of a malicious and 308

GARTH

V.

COTTON.

865

destructive character, such as the pulling down the capital messuage, stripping the estate of its timber, or such-like acts, even although the title of the plaintiff mighi be denied by the defendant: Earl Talbot v. Hope Scott, 4 K. & J. '.it'); Neale v. Oripps, 4 K. & J. 4(2. Arid see Anwyll v. Owens, 22 L. J. Ch. 995. And where a plaintiff in possession sought to restrain one who claimed by an adverse title, the tendency of the Court was to grant au injunction, at least when the acts committed did or might tend See Loicndes v. Bettle, 33 L. J. N. to the destruction of the estate. See S. (Ch.) 47)1; 10 Jnr. (N. S.) 220; 12 W. R. (V.-C. K.) 399. also Stanford v. Hurlstone, 9 L. R. Ch. App. 116. And now by the Supreme Court of Judicature Act, 1873 (36 & 37 Vict, c. 66) sect. 25, sub-sect. 8, it is amongst other things enacted, "that if an injunction is asked, either before, or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may bo granted, if the Court shall think tit, whether, the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under auy colour of title; and whether the estates claimed by both or by either of the parties are See Trower's Prevalence of Equity, pp. 76, legal or equitable." 77, 78; Chapman v. The Midland Railway Company, 5 Q. B. D. 431.

Interference of Equity in cases of Equitable tcaste by tenant for without impeachment of waste felling ornamental timber. J Although a tenant for life without impeachment of waste, and a tenant in tail after possibility of issue extinct, may fell all the ordinary timber unon the estate, it has long been established, that a Court of equity will restrain them from committing what is called equitable waste, by felling timber planted or left standing for the shelter or ornament of a mansion- house or grounds (Rolt v. Lord Somerv idle, 2 Eq. Ca. Ab. 759; Packington's case, 3 Atk. 215;
life

Strathmore

v. Bowes, 2 Bro. C. C. 16t5; Cliamberlyne v. Dummer, 1 Bro. C. C. 166; 3 Bro. C. C. 549), even if planted by the tenant for life himself: Coffin v. Coffin, Jac. 71. *The principle upon which the Court has gone, seems [ *865] to be, that if the testator, or the author of the 'interest by deed, had gratified his own taste by planting for ornament, though he had adopted the species the most disgusting to the tenant for life, and the most agreeable to the tenant in tail, and, upon a competition between those parties, the Court should see that the tenant for life was right, and the other wrong, in point of taste, yet the and it is not competaste of the testator, like his will, binds them tent to them to substitute another species of ornament for that which the testator designed. The question, which is the most tit method of clothing an estate with timber for the purpose of orna;

ment, cannot be safely trusted to the Court.

Per

Lord Eklou, 309

in

* 866

GARTH

V.

COTTON.

Marquis of Boivnshire v. Lady Sandys, 6 Ves. 110. So, likewise, Sir William Grant has observed, " As the Court cannot determine what is ornamental timber, it being merely a matter of taste, they therefore say, that what was planted for ornament must be considered as ornamental " Lord Mahon v. Lord Stanhope, 3 Madd. 423, n.; and see Barges v. Lamb, 1G Ves. 174; Coffin v. Coffin, Jac. 70; " Marker v. Marker, 9 Hare, 1, 17. [The term " ornamental timber has received very liberal interpretation, and includes everything planted as left by the settlor for ornament, and the tenant for life impeachable for waste may be restrained although the mansion house had been pulled down. Kerr on Injunction, (2nd) 93; Seton on Decrees, 190 et seq.~\ The principal has been extended from the ornament of the house to outhouses and grounds, then to plantations, vistas, avenues, and Per Lord Elto all the rides about the estate for ten miles round. don, C, 6 Yes. 110; and see Jebbw. J ebb, Johnesv. Johnes, and Lord Tamivorthx. Lord Ferrers, cited 6 Ves. 110; Williams v.M'Nam:

ara, 8 Ves. 70; but although the protection may be afforded to rides or avenues at a considerable distance from a mansion, it will not necessarily be extended to the woods through which they pass, so Wombivell v. Belasyse, 6 as to prevent their being cut for repairs Ves. 110 a. n. 2nd Ed. In the Marquis of Downshire v. Lady Sandys, 6 Ves. 107, the injunction was extended to clumps of firs on a common two miles from the house, although land belonging to other persons intervened. "If," observed Lord Eldon, C, "the principle has been rightly applied, it is very difficult in argument to say, it cannot be applied to a common as well as in field lands, and that the contiguity oi*remoteness, if de facto it was planted for ornament, can alter the prin
:

upon which the rule of the Court is to be applied." In Day v. Mei*ry, 16 Ves. 375, the principle applicable to equitable waste was extended to trees planted for the purpose of excluding objects from view. But circumstances may render the felling of ornamental timber " For, if a tempest had produced gaps in a piece of orjustifiable. namental planting, by which unequal and discordant breaks going too far [ *866] and * divisions were occasioned, it would be to hold, that cutting a few trees to produce an uniform and consistent, instead of an unpleasant and disjointed appearance, should be construed waste." Per Sir William Grant, M. K, in
ciple

Lord Mahon v. Lord Stanhope, 3 Madd. 523, n. So it seems that timber might be cut which injured or impeded the growth of any other trees adjoining thereto, which were of so much importance to the purposes of ornament or shelter, that the removal of the timber so cut was essential to such purposes of ornament or shelter Lushingtonx. Boldero, 6 Madd. 149,150.
:

So, likewise, ornamental timber may be felled if it be so near to a house as to be prejudicial to its healthiness, but the onus of proof

310

GARTH
willlio

V.

COTTON.

* 807

upon the persons

from doing soon failure of proof.

Beav. 623.
It

felling the timber, who will be restrained Sec, Campbell v. Allgood, IT

has been observed, that ornamental timber has been protected its connection with a mansion-house or its grounds the question, therefore, naturally arises, whether, when a mansion-house has been pulled down, the Court will still interfere to preserve the tim-

from

ber.

Where the owner

it,

and

in fee of an estate, with a mansion house upon trees planted, or left standing for ornament around or abont

the mansion-house, pulls it down without any intention of rebuilding it, a tenant for life without impeachment of waste, under the will of such an owner, is entitled to cut down the trees. See Micklethwait v. Micklethwait, 1 De G. & Jo. 504; 5 W. (L. J.) 8(31; 2(3 L. J. (Ch.) 721; o" Jur. N. S. 1279. Where, however, it is either proved, or may be inferred, that in demolishing, or after the demolition of, a mansion-house, a testator intended, designed, or wished to rebuild it, or to reside at, or erect a manfion-house, or place of residence on that estate, or intended, designed, or wished, that any devisee under his will should do so, timber, which was ornamental to the mansion-house while in existence might be protected by the Court from being felled by a tenant for life without impeachment of waste. See the remarks of Lord Justice Knight Bruce in Micklethwait v. Micklethwait, 5 W. Ii. (L. J.) 862; 1 DeG. & Jo. 519. In two well-known cases, the ornamental timber has been protected although the mansion-house has been pulled down. The first of these cases is, Wellesley v. Wellesley, 6 Sim. 497. The other case is that of Mori'isx. Morris, 15 Sim. 505; affirmed on appeal by

Lord Cottenham, 11 Jur. 196. With reference to the case of Morris v. Morris (15 Sim. 505, 11 Jur. 196), Lord Justice Turner has observed, that there seem to be two grounds on which the * injunction in that [ * 867 ] case was granted that the tenant for life could not, by
;

the mansion-house, entitle himself to the ornamental and that if ho was justified in pulling down the mansionhouse by reason of the estate in trustees being unimpeachable of waste, there was an intention to be collected from the power to grant building leases, that the mansion-house should be rebuilt and that it was upon the latter ground, too, and upon the ground of there being villas upon the estate, and the general scope of the settlement, that the case of Wellesley v. Wellesley, 6 Sim. 497, seems to have proceeded. See 5 W. EL (L. J.) 8(34; 1 De G. & Jo.

pulling timber

down

529.

ment

Court of equity will restrain a tenant for life without impeachof waste, fiom cutting down saplings not proper to be felled (O'Brien v. O'Brien, Amb. .107; Marquis <>f Doumshire v. Lady Sandys, 6 Ves. 108; Coffin v. Coffin, Madd. 17); and from cutting 311

* 868

GARTH

V.

COTTON.

underwood before it is of sufficient growth (Brydges v. Stevens, 6 Madd. 279); but not from felling timber, merely because it is not full grown or proper for building; for, as observed by Loid Hardwicke, C, the reasoning of the cases of pulling down farm or mansion-houses, or felling trees planted for ornament or shelter, does not come up to this, and it would be very dangerous for the Court to use such latitute as to extend this to the taking away the profits
of the estate by tenant for life to the prejudice of the remainderman, which his estate for life without impeachment for waste, gives him liberty to do: Aston v. Aston, 1 Ves. 266; and see Coffin v. Coffin, Jac. 72. A tenant in tail after possibility of- issue extinct, although unimpeachable of waste at law (Lewis Boxvles's Case, 11 Rep. 79; Williams v. Williams, 15 Ves. 428; 12 East, 209), is within the principle of equitable waste, and will be restrained from committing malicious or extravagant waste, such as cutting down ornamental timber, and pulling down houses. "In a Court of law," observes Sir John Leach, "a tenant in tail after possibility of issue extinct, is, in effect, a tenant for life without impeachment of waste; and Courts of equity have, in the question of equitable waste, confounded him with other tenants for life without impeachment of waste, and have not entered into the distinction that he is unimpeachable of waste not by the provision of the grantor, but as a legal incident to Lis estate:" Attorney -General v. Duke of Marlborough, 3 Madd. 538. See, also, Abrahal v. Bubb, 2 Show. 69; 2 Freem. 52; 2 Eq. Ca. A.b. 757; 2 Swanst. 172; Anon., 2 Freem. 278; Cooke v. Whalley, 1 Eq. Ca. Ab. 400. In equitable as in legal waste, if one act of waste be * 868 ] established, the Court will restain equitable * waste gen[
erally: Coffin v. Coffin, 6 Madd. 17. There does not appear to be any settled form of inquiry as to what is ornamental timber applicable to all cases, for the question to what extent ornamental timber may be cut, must, it seems, depend upon the circumstances of each particular case, and the proper inquiry to be directed must vary accordingly. For instance, in some cases a wood may have been dedicated by the absolute owner for the purpose of ornament and shelter only; in others it may have been so dedicated, subject to its being used in the first place for the purpose of repairs, or even sale; and the form of inquiry would necessarily differ in each of these cases. See Ford v. Tynte, 2 De G. Jo. & Sm. 127, 134, and the form of inquiry there given and the observations thereon; see also Halliwell v. Phillips, 4 Jur.

(N. S.) 607; Wombwell v. Belasyse, 6 Ves. 110, n. The orders to restrain equitable waste by the destruction of timber planted for shelter or ornament, or of too young growth, are generally drawn up in the terms used in Chamberlayne v. Dummer, viz., "that an injunction be awarded to restrain the defendant, Harriet Dummer, her servants, workmen, and agents, from cutting

312

GARTH

V.

COTTON.

* 809

down any timber and

other trees growing on the estate in question, which are planted or growing there for the protection or shelter of the several mansion houses belonging to the said estate, or for the ornament of the said houses, or which grow in lines, walks, vistas, on other grounds thereunto belonging; and that the injunction do also extend to restrain the said defendant, her servants, workmen, or agents, from cutting down any timber or other trees, except at seasonable times, and in a husband-like manner; and also from cutting down saplings or young trees not lit to be cut, as and for the purposes of timber, until the hearing of this cause, or further order of the Court." Reg. Lib. A., 1781, fol. 452. Where there has been a trust or restriction created for the preservation of ornamental timber, the Court will endeavor to enforce it, as it is not like a trust for purposes of benevolence, as to which the objects are unlimited and no standard can be found: Marker v. Marker, 9 Hare, 1, 18, 20. Where, moreover, trustees have power to fell timber large enough to comprehend ornamental timber, the Court, it seems, would not allow them unnecessarily to execute their power, to fell ornamental timber, but would direct them to leave that and to fell the timber which was not ornamental: The Marquis of Downshire v. Lady Sandys, 6 Ves. 109.

'

But a Court of equity will not interfere with an ordinary tenant * in tail, who may, at his pleasure, cut down all tim- [ * 809 ber for whatever purpose planted, or pull down all buildSee the observations of Sir Jolui Leach, V.ings upon his estate. C, in Attorney- General x. Duke of Marlborough, 3 Madd. 532; Sa]

ville's

Case, cited ante, p. 13.

tail can commit equitable waste, It would seem, does not appear to have been actually determined. however, that he has just as much power to do so, as tenants in tail Ho has clearly as prohibited by statute from barring the entail. against the remainder- man, the same right to open mines (Lyddal in notis, Blunt's ed.), and fell v. Clavering, Amb. 371, cited timber (Saville v. Saville, 1 Ves. 547, cited), as a tenant in tail In a remarkable case an infant tenant in tail in posof full age. session, in a very bad state of health, and not likely to live to full age, by his guardian cut down a great quantity of timber just beThe remainder-man applied fore his death, to a very great value. Saville's Case, Ca. t. Talb. for an injunction, but could not prevail. 16, cited ante p. 13. It would, however, be the duty of his guardian or trustee to fell only such timber as was fit and proper to bo felled in a due course See as to powers of management: Hussey v. Hussey, 5 Madd. 44. given to trustees of infants, ante, pp. 857, 858. As to whether the produce of timber felled on the estate of an infant is realty or personalty, see note to Fletcher v. Ashburner,

Whether an infant tenant in

post, p. 1018.

313

* 870

GARTH

V.

COTTON.

It seems that tenants in tail, restrained by statute from barring their issue, or those in remainder "with reversion to the Crown, are not, on that account, within the principle of equitable waste; for, to use the words of Sir John Leach, V.-C, " They have all the legal rights and incidents which belong to an estate of this character, except where such rights and incidents are specially qualified by the provisions of the statute, and there being no qualification with respect to the right of cutting timber, they are as much the legal

owners of the timber as if they were tenants in fee simple .... instance can be stated in which a Court of equity has ever interfered against such a tenant in tail, upon the principle of equitable See Attorney General v. Duke of Marlborough, 3 Madd. waste." However, his Honor in that case held, on demurrer, 498, 536, 539. that the Duke of Marlborough for the time being is, under the Act 5 Anne, c. 3, bound to maintain Blenheimhouse for the future residence of those to whom the succession was limited, and that the Court was bound to interfere to prevent the destruction of the " I am clearly of house, and of the ornamental timber about it. opinion," said his Honor, " that the Duke of Marlborough, * 870 ] having no power of * destruction over the house, has no [ power of destruction over timber which is essential to the shelter or ornament of the house, and I must overrule a demurrer which in effect, insists upon an absolute and unqualified right

No

to cut all timber." By a recent Act, the legal power of a tenant for life without impeachment of waste to commit equitable waste is taken away. See the Judicature Act, 1875 (36 & 37 Vict. c. 66, sect. 25, sub-sect. 3), which enacts that "an estate for life without impeachment of waste shall not confer or be deemed to have conferred upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate." With regard to this sub-section it has been well observed by a learned author, that " it does not appear why estates for years are Such cases, however, and all other estates not exnot within it. pressly within it, are. if dispunishable at law but not in equity, practically brought within it, by sub-section 11, for it is then a con-

or variance between the rules of equity and the common law." Trower's Prevalence of Equity, p. 22. It may also be observed that tenant in tail after possibility of issue extinct is not mentioned in
flict

the sub-section.

Account for waste how far incident to an injunction.'] One important objection taken in Garth v. Cotton was this, that, although it was admitted a bill might have been maintained by the trustees to preserve contingent remainders, to stay waste before it was commit ed yet it did not follow from thence, that after that was over, a bill might be brought for an account; and it was argued, that the
y

314

GARTH

V.

COTTON.

* 871

jurisdiction of the Court to decree an account of the value of the timber was only incident to the jurisdiction of granting an injunction.

however, clear, that, in cases of equitable waste, an account See Duke of Leeds v. Earl granted without an injunction. Ph. 117, and cases there 2 Sim. C, 14 S. Amherst, 367; 357, of
It
is,

will be
cited.

But
felled,

in a recent case,

where ornamental timber had been actually and the reversioner claimed damages in an administration

suit against the estate of the tenant for life in respect of such equitable waste, it was held that the amount of damages could only be

measured by the damage done to the inheritance, and under the circumstances no damages were awarded: Yelverton v. Bath, 10 L.
E. Eq. 465.
the whole, we may conclude, that where there was a remedy law for waste as in trover, in the case of timber, an account would not be decreed * except as incident to an in- [* 871 ] junction. (Jesus College v. Bloome,3 Atk. 262; Smith v. Cooke, 3 Atk. 381; Pulteney v. Warren, 6 Ves. 89; Grierson v. Eyre, 9 Ves. 34(5; Richards v. Noble, 3 Mer. (373; sed vide Lee v. Alston. 1 Bro. C. G. 194; 3 Bro. C. C. 37, 1 Ves. Jun. 78; and see Bagot v. But in the case of waste in mines, although Ji<t i/nt, 32 Beav. 509.) there might be a remedy at law, an account would be granted inde(Bishop of Winchester v. Knight, 1 P. j> uident of an injunction. Wins. 403; Jesus College v. Bloome, Amb. 54; Parrot v. Palmer, 3 My. & K. 632, and cases there cited; Powell v. Aiken, 4 K. & J. Where, however, as in 313: Wright v. Pitt, 12 L. R. Eq. 408.) Garth v. CoLon, there was only a remedy in equity, (and see Parrot v. Palmer, 3 My. & K. 632) and in cases of equitable waste, an account would be granted, (Duke of Leeds v. Earl of Amherst, 14 Sim. 357; S. C, 2 P. L. 117, and cases there cited) although there was no injunction. There was, moreover, this distinction between what a plaintiff might obtain by an action of trover, and by proceedings in equity. By the former he would obtain the value of the timber; by the latter he must take the account as it lay, unless there were some spe-

Upon

at

cial case to

vary the terms of

it:

Lee

v.

Alston, 1 Ves. jun. 82.

Although an account will be granted against a tenant for life without impeachment of waste who pulls down a mansion-house and sells the materials (Duke of Leeds v. Earl of Amherst, 14 Sim. ''i 2 Ph. 117), it will, it seems, be refused where the materials of the old house are used in building a new and better house on the setSee Morris v. Morris, 3 De (1. & Jo. 323; &. C, as aftled estates. firmed by the Lords Justices, 6 W. R. 427. Where an account of equitable waste committed by a tenant for life was directed to be taken against his executors, which it was found impossible to take accurately, and the Master had arbitrarily charged the executors, his report was supported upon the general
>

315

872

GAKTU

V.

COTTON.

principle that where a wrong had been committed the wrong-doer must suffer from the impossibility of accurately ascertaining the amount of the damage: The Duke of Leeds v. lite Earl of Amherst,

20 Beav. 239.

As to waste by tenants in common.] As each tenant in common has a right to "enjoy as he pleases," and may, moreover., obtain a decree for a partition, the Court will not in general grant an injunction to restrain any of them from committing either ordinary (Goodwyn v. Spray, Dick. 667; Arthur v. Lamb, 2 Dr. & Sm. 428) or equitable (Hole v. Thomas, 7 Ves. 589; Twort v. Twort, 16 Ves. J 32) waste, or from working coal mines (Job v. Potton, 20 L. * 872] * R. Eq. 84), but it will interfere between them to prevent [ malicious or destructive waste; as, for instance, "against cutting saplings and any timber trees or underwood at unseasonable times:" Hole v. Thomas, 7 Ves. 589, 590; see also Clegg v. Clegg, 3 Giff. 322, 336; Martyn v. Knowllys, 8 T. R. 145. Under special circumstances, nowever, the Court has restrained a Thus, where tenant in common from committinor ordinary waste. the parties interested were only equitable tenants in common, and the tenant in common who was committing the waste not only was not entitled to the possession, as the legal estate was vested in a trustee, but was also insolvent and unable to pay to his co-tenants their shares of the money to be produced by the sale, Lord Thurlow, C, granted an injunction restraining waste: Smallman v. Onions, S Bro. C. C. 621. So where one of two tenants in common was in occupation of the land as tenant to the other, Lord Eldon, C, granted an injunction restraining him from committing waste, "stating expressly in the order that he was occupying tenant to the plaintiff; and restraining him from committing any waste upon the premises, which he held as such occupying tenant:" Twort v. Twort, 16 Ves. 128, 132; see also Jacobs v. Seward, 4 L. R. C. P. 328. After a decree has been made in a suit for partition the Court has jurisdiction to restrain a tenant in common in possession not only from destroying ( Wright v. Atkyns, 1 V. & B. 313), but also from wasting the property. lb. But the Court will not restrain a tenant in common, bound by no express contract of tenancy, from selv.

hay and turnips off the soil after a decee for partition (Bailey Hobson, 5 L. R. Ch. App. 180), as the relation of landlord and tenant cannot be implied by mere occupation of one tenant in common: M'Mahon v. Burchell, 2 Ph. 127; Henderson v. Eason, 2 Ph. 308; Bailey v. Hobson, 5 L. R. Ch. App. 180.
ling

eral rule
a

As a gentimber severed by tempest or tvaste belongs.] where by act of God, as a tempest, or by act of man as by trespasser, or by waste of tenants, things are severed fiom the inTo

whom

heritance, while a tenant for life impeachable for tcaste is in possession, whether they are materials of a house, timber, or the produce

316

GARTH
of mines, they will
first

V.

COTTON.

* 873

become

at

once the property of the owner of the

estate of inheritance in esse, whether in fee, or tail ( Uvedall v. Uvedall, 2 lioll. Ah. 119), even although there may be an inter vening estate of freehold in a tenant for life without impeachment
\v;ist':
I'ii jot v.

of

Bullock, 1 Ves. jun. 484; Gent

v.

Harrison, Johns.

517,

is the same where * the severance takes place [ * 873 by the act of the tenant for life impeachable for wasto himself without collusion with the owner of the inheritance: Hony|

524 The result

voood

of opinion that in such cases the produce of timber should be laid out in the purchase of stock, and the interest of the fund paid to the successive tenants And in for life: 13 Beav. 7; Bateman v. Hotchkin, 31 Beav. 480. a recent case> he treated it as doubtful whether the presumptive owner of the inheritance would take the produce of the waste of a legal tenant for life without collusion to the detriment of the heir apparent See Bagot v. Bagot, 32 Beav. 523. afterwards coming into esse. There Sir John Romilly, M. R., says, "I by no means assent to the doctrine supposed to be laid down by some of the cases, but as I conceive erroneously so supposed, that if an estate be limited to several persons for life, in succession, with several successive estates tail to their first arid other sons in succession, and the first tenant for life commits waste without collusion with any one, the money arising from the sale of the inheritance wasted would belong to the eldest son of the last tenant for life, because he happened to be the only tenant in tail then in existence, and that he could thereby deprive all the future sons of the prior tenants for life, who should bo afterwards born, of the inheritance settled on them. If the prior tenant for life could do this, as to a portion, the principle would equally apply to the whole, and he might, provided there was no collusion with the tenant in tail in esse, give an estate or a valuable part of it to a remote descendant, to the exclusion of many children, who, in the ordinary course of nature, would afterwards come into existence. I do not think that this proposition is intended to be laid down in any of the cases referred to, and I am unwilling to do anything which might lead to the supposition that I considered this to be the law." These opinions of Lord Romilly are entirely opposed to the law as laid down by Lord Hardwicke in the principal case. A tenant for life, however, is entitled to have the benefit arising from the sale of all such trees thrown down by the wind as he would be entitled to cut himself Bateman v. Hotchkin, 31 Beav. 486 Bagot v. Bagot, 32 Beav. 509, 518. With regard to a windfall of larch trees (which are not timber) the Court appears to dispose of the proceeds arising from the sale thereof in such a manner as will be just and equitable to all parties interested in a settled estate. See In re Harrison, Hari'ison v.
:

v. Honywood, IS L. It. Eq. 311. Lord Romilly, however, appears to have been

317

874

GARTH

V.

COTTON.

[*874] Harrison, *28

There it appeared from the Ch. D. 220. evidence that the trees were about fifty years old, and if the storms had not occured, in about fifteen years they would have had to be cut down, and the land cleared. The value of the larch trees blown down was about 4500Z., and it, had also become necessary to fell trees to the value of about 1500/,, and the greater part The tenant for life was of' the plantations required replanting. under fifty years of age, and this might have happened before the About 200*., had been the average inchildren's interest fell in. come received from the plantations in the last forty years, though sometimes the income had amounting to 500/. For some years past It was held by the Court of appeal, reversing it had been 250J. the decision of Pearson, J., (reported W. N. Nov. 15, 1884, p. 205) an appeal it was, however, held by the Court of Appeal allowing that having regard to the maxim 'quicquid planatatur solom solo credit,' the principal applicable was, that if a tree was attached to the soil, it was real estate, and if severed personalty; that the life

and manner of growth of any particular tree was no test of its attachment to the soil, and that the degree of attachment or severance, was a question of fact in every particular case: In re Ainslie, Swinburn v. Ainslie, 30 Ch. D. 485, that the most equitable order would be, that the income arising from the whole of the plantations in managemennt and from. the investment of the proceeds of the windfalls, should be paid to Mrs. Harrison the tenant for life, during her widowhood, but that if in any year the income exceeded 25'0Z., the surplus should be retained as capital by the trustees, and that if it fell below 250Z. it should be made up to that amount out of the capital; but without prejudice to the power of the trustees to resort to the fund for the purpose of planting." In another case two questions arose, firstly, whether larch trees blown over so that they would not grow,T>elonged on the decease of the owner in fee to- his" personal representatives; or to his devisees and secondly, to whom such larch trees belonged as though injured might continue to grow, but that for the proper cultivation of the. plantations, and for non-interference with access to the pasturage, would require removal. Pearson, J., refered it to a surveyor as special referee to report to the Court what proportion of the trees were so blown down, that they would not as such trees ordinarily grow, and declared that such trees belonged to the personal estate, and that the other trees belonged to the tenant for life. In re Ainslie, Swinburn v. Ainslie, W. N., Nov. 15, 1884, p. 205. By analogy to the decisions in cases of legal waste, if a tenant for life, unimpeachable for waste (Roll v. Lord Somerville, 2 Eq. Ca. Ab. 759; Marquis of Ormond v. Kynnersley, or Butler v. KynnerWellesley v. sley, 7 L. J. O. S. (Ch.) 150; 8 L. J. O. S. (Ch.) 67 Beav. Boldero, 15 v. Lushington 1) or his Sim. 497; 6 Wellesley, assignees in bankruptcy {Lushington v. Boldero, 15 Beav. 1); Duke timber, of Leeds v. Amherst, 2 Ph. 217, should fell ornamental
;

318

GARTH

V.

COTTON.

* 876

* the proceeds will belong to the person having the lirst [* 875 vested estate of inheritance; and pari ies having intervening estates for life have no righl to an account of the timber so cut. or to have such proceeds invested upon the same trusts with the lands. In Dushington v. Boldero, 13 Beav. 418, however, the Court refused to allow a fund arising from equitable waste to be paid to a son of a tenant for life in remainder, who, subject to the death of the first tenant for life, without issue, and the life interesl of his father, was entitled to the inheritance as tenant in tail. The grounds for this decision appear to have been that the point in the cause could not be decided in the absence of any of the parties interested, and as it could not be said, that the issue of the first tenant for life had no possible interest in the fund during the life of the lirst tenant for life, the case was not ripe for decision. In a recent case, moreover, there is a dictum of Sir G. Jcs.sc/. M. 11., to the effect that where ornamental trees, or trees which could not otherwise be cut down by a tenant for life unimpeachable for waste, are cut down, the proceeds ought to be invested so as to follow the uses of the settlement, that is to say, to go along with the estate according to the settlement. See Honyicood v. Hon yieood, 18 L. R. Eq. 311. Although this course is most consistent with the principles of Equity, it is presumed, that until the decision of Lord Lyndhurst, in the Ma ranis of Ormond v. Kynnersley, 7 L. J. O. S. (Ch.) 15. is overruled by a Court of superior jurisdiction, it must be considered to be law. An equitable tenant for life, unimpeachable for waste, is entitled to the proceeds of ornamental timber cut by him, where the timber so cut is such as the Court would itself direct to be cut for the preservation and improvement of the remaining ornamental timber: Baker v. Sebright, 13 Ch. D. 179. But although this be so, it does not follow that the Court will not, at the instance of the remainderman, grant an injunction restraining the tenant for life from cutting any ornamental timber which it has become necessary and proper to cut, and direct that the cutting be done under it supervision. lb. It may be here mentioned that although it may be right to cut ornamental timber, impeding the gi'owth of that which is more ornamental, it may not be so to cut timber which is simply decaying because there are oaks and other trees which will decay for cent uiies and still be ornamental. lb. 185. There is, however, a most important exception to the general rule where timbwr lias been cut down by tenant for years, or tenant for life impeachable for * waste, in collusion [ * 870 ] with the lirst owner of the inheritance; for in such a case equity, as in the principal case, has interfered and has prevented such owner of the inheritance from getting any benefit by ordering the fund arising from the sale of the timber to be invested so as to
j

319

S77

'

GARTH

V.

COTTON.

follow the uses of the settlement of the land from which the timber was severed, or if, as in the principal case, a prior owner of the inheritance subsequently came into existence, will order the fund to be paid to him. Where, moreover, the tenant for life of land has in himself the next existent estate of inheritance, subject to intermediate contingent remainders, he will not be allowed to take advantage of his own wrong in cutting down timber, but the Court will preserve it for the benefit of the contingent remainder- men: Williams v. Duke of Bolton, 3 P. Wms. 268, cited in note by Mr. Cox; Poiclett v. The Duchess of Bolton, 3 Ves. 374; Marquis of Ormond v. Kynnersley, 7 L. J. (Ch.) 150, 154, 155; Bagot v. Bagot, 32 Beav. 509; Seagram v. Knight, 2 L. R. Ch. App. 628. [A devisee of a contingent remainder cannot maintain an action for damages in the nature of waste: Sager Guardian v. Golloway, 3 Amerman (Pa.), 500.] But it seems the Court will not interfere unless it is satisfied that the defendant in his character of owner of the next existent inheritance, is colluding with himself in his character of tenant for life, in such a manner, as if there had been two distinct persons, the Court would have interfered upon the ground of fraud and collusion. See Birch- Wolfe v. Wolfe, 9 L. R. Eq. 683, 691." There it was shown that the tenant for life, who was also owner of the first vested estate of inheritance, had laid out sums in permanent improvements on the estate at least equal to the value of the amount realized by the acts of waste, which were themselves of a trivial character. The bill was dismissed by James, V.-C, who observed, "It would, in my judgment, be monstrous to say that a tenant in remainder, allowing a tenant for life to cut down timber in consideration and upon condition of the tenant for life doing these things for the benefit of the estate, was guilty of any fraudulent collusion which would induce this Court to extend this somewhat extraordinary jurisdiction to him; and if there would have been no ground for the interference of this Court in the case which I have supposed of tenant for life and in remainder, I cannot put the case higher when it is the same individual who is doing the same thing in his double character with regard to the estate." And where the executor of a deceased tenant for life, who was also ultimate remainder-man in fee, admitted having received* the proceeds of certain timber cut, by his testator, he was allowed, in the account to be taken against him, to take credit for the * 877 ] sums laid out by his testator in permanent * improve[

ments: Birch- Wolfe

v.

Birch, 9 L. R. Eq. 683.

Produce of timber ordered by the Court to be felled hoiv dealt Where a tenant for life impeachable for waste, is in posses sion, the Court will order trees in a state of decay, or the standing of which is injurious to others, but not such as are merely ripe, univith.]

320

GARTH
less

V.

COTTON.

* 878

they were injuring the growth of othpr timber (Seagram v. Knight, 2 L. R. Ch. App. 028; 3 L. K. Eq. 398; Hussey v. Hussey, 5 Madd. 44; Beivick v. Whitfield, 3 P. Wms. 267; hut see Ferrand v. Wilson, 4 Hare, 344), to be feiled, upon the ground, that the in terest of the succession requires it, and will direct the interest of the proceeds to be paid to the tenant for life, though impeachable for waste (see Tooker v. Annesley, 5 Sim. 235, and cases there cited; Tollemache v. Tollemache, 1 Hare, 450; Ferrand v. Wilson, 4 Hare, 381; Honywood v. Honywood, 18 L. R. Eq. 311): a dowress being entitled to one-third of the income (Bishop v. Bishop, 5 Jur. 931; 10 L. J. N. S. Ch. 302; Dickin v. Hamer, 1 Drew. & Sm. 284, in which case the right of a dowress in mines opened after hor husband's death was discussed but not determined); and the capital to be transferred to the first owner of the inheritance, or the first owner for life, without impeachment of waste (Waldo v. Waldo, 12 Sim. 107; Philips v. Barlow, 14 Sim. 203); and as the timber-money will be considered as realty, on the death of a tenant in fee first owner of the inheritance, if he has done nothing to convert it into personalty, his heir will be entitled to it in preference to his personal representatives: Field v. Broiun, 27 Beav. 90. The rule is the same where a trustee has felled timber and the Court has adopted his act: Waldo v. Waldo, 12 Sim. 107, 112;

Gent v. Harrison, Johns. 517, 523; Earl Cowley v. Wellesley, 1 L.. R. Eq. 050; 35 Beav. 035; Seagram v. Knight, 2 L. R. Ch. App. 030. So also it seems where timber has been felled by an equitable tenant for life impeachable for waste, and the proceeds have been Ch. D. 139. paid into Court: Lowndes v. Norton, Under the 35th sect, of the Settled Land Act, 1882 (45 & 40 Vict c. 38), "whore a tenant for life is impeachable for waste in respect of. timber, and there is on the settled land timber ripe and fit for cutting, the tenant for life, on obtaining the consent of the trustees of the settlement or an order of the Court, may cut and sell that
timber or any part thereof: subs. 1. " Three -four lis part of the net proceeds of the sale shall be set aside as and be capital money arising under this Act, and the otfier fourth part thereof shall go as rents and profits;" subs. 2. * Before this Act it was necessary for a tenant for life [ * 878 ] impeachable for waste to commence an action in order to have ripe timber felled under the direction of the Court. The course, as will have been observed, was to invest the whole proceeds, and give him no part of the capital, but only the income. See Settled Land Act by Wolstenholme & Turner, p. 52, 2nd ed. But the produce of the sale of underwood-timber cut periodically, and gravel whore the pits had been worked befoce, ought to be paid by the trustees to the tenant for life, though impeachable for waste,
t

as part of the R. Eq. 050.

income of the estate: Earl Cowley v. As to turf, see Harris v. Evans, 20 L.

Wellesley, 1 L. T. Rep. (N. S.),

827; 20

W.

R. (V. C. B.), 999.

* 21

WHITE ON KQUITY.

321

* S79

GARTH

V.

COTTON.

It was laid down by Chelmsford, L. C, that the Court will never adopt the act of a tenant for life impeachable for waste, who has taken upon himself to cut and sell timber without authority, for he does this at his peril, and he can never be permitted to derive any advantage from his own wrongful act: Seagram v. Knight, 2 L. R. Ch. App. 632; Williams v. Duke of Bolton, 3 P. Wms. 268 n. In a recent case, however, where an equitable tenant for life impeachable for waste had cut down timber, but in the opinion of the Court "not otherwise than in due course of management," the proceeds of the timber were ordered to be paid into Court, and the interest to be paid to the tenant for life, during her life: Loicndes v. Norton, 6 Ch. D. 139. If the Court were to order ornamental timber to be cut, as for instance, if in consequence of its proximity to a house, it causes it to be unhealthy, it is presumed that by analogy to the cases where ordinary timber is felled by the order of the Court, the Court would direct the interest to be paid to each tenant for life in succession,

and the

capital to the first

life

owner of the inheritance, or the

first

without impeachment of waste. See Lord Lovat v. The Duchess of Leeds, 2 Drew. & Sm. 75. The Court of Chancery has also, under the Leases and Sales of Settled Estates Act, 1877 (40 & 41 Vict. c. 18, repealing 19 & 20 Vict. c. 120, and its amending Acts, 21 & 22 Vict. c. 77; 27 & 28 Vict. c. 45; 37 & 38 Vict. c. 33; 39 & 40 Vict. c. 30), power amongst other things, to authorise a sale of any timber {not being ornamental timber) growing on any settled estates (s. 16), and all monies to be received on any sale effected under the authority of the Act, is to be paid and applied in manner therein mentioned. Ss. 34, 35, 36.
tenant for

Remedy for waste when and how barred.^

Where a tenant for

life

impeachable for waste fells timber, the act being tortious, [*879] the * remainder-man having the inheritance might either have brought an action of trover for the trees, which became his property from the moment they were felled, or an action for money had and received for the produce of the sale, or he might have instituted a suit in equity for an injunction and an account. The Statute of Limitations (3 & 4 Will. 4, c. 27) would, however, if the owner of the inheritance were not under disabilities, begin to run from the time when the timber was felled, and after the expiration of six years his remedy would be barred: Seagram v. Knight, 2 L. R. Ch. App. 628; Higginbotham v. Hawkins, 7 L. R. Ch. App.
676.

however, the owner of the inheritance were an infant, time to run from the day he attained twenty-one years v. Knight, 2 L. R. Ch. App. 628, 632), and if the tenant for life who had committed waste became his administrator the running of the statute would be suspended during the administration: Segram v. Knight, 2 L. R. Ch. App. 62S, 632.
If,

would only begin of age (Seagram

322

GARTH

V.

COTTON.

* 8S0

A claim in equity by a subsequent tenant for life against the estate of a deceased tenant for life who w;is also owner of the first vested estate of inheritance, for acts of waste committed by him when tenant for life, only arises at his death, because there was nobody before that time entitled to bring an action in respect of the wrong; but the claim will be barred by the Statute of Limitations (3 & 4 Will. 4, c. 27), if not made within six years from that
date: Birch-Wolfe v. Birch, 9 L. R. Eq. C83. It has been held that where equitable waste had been committed by a tenant for life, time did not begin to run against the tenant in tail in remainder until he came into possession upon the death of the tenant for life, when the statutory rule which gives to him

twenty years from the time when his title accrues in possession for bringing an action or suit for the property, was applicable to a claim for compensation for equitable waste as well as to a claim to See Duke of Leeds v. Earl of Amherst, 2 Ph. 117; the land itself.
there the plaintiff's father, while in possession of the family estates as tenant for life, in the year 1808 pulled down an ancient family mansion and cut a quantity of ornamental timber in the park. In 1838 the Duke died. Shortly afterwards a bill was filed by the plaintiff against the trustees and the parties beneficially interested under the late Duke's will. Lord Cottenham, C, affirming the decision of Sir L. Shadwell, V.-C, decreed an account of equitable waste against the estate of the tenant for life, although thirty-eight years had elapsed since the waste was committed, inasmuch as the
title

of the remainder-man had accrued within tiventy "The second, third, [ *880 ] years before *the filing of the bill. fourth, and fifth sections of the Statute of Limitations (3 & 4 Will. 4, c. 27)," said his Lordship, "all apply more or less to the subject, and they all give to the tenant in tail his remedy from Indeed, whether the time at which his estate vests in possession. this case be considered as within the statute, or whether it is to be governed by the rule, that equity follows the law, it would be strange, if where an act of forfeiture has been committed by tenant for life, the tenant in tail is not bound to enter for the forfeiture, but may have twenty years from the time when his own estate vests in possession, and yet the moment you convert a legal right into an equitable right, that is to say. the moment you divert part of the estate from its proper purpose by an act of equitable waste, the tenant in tail should be barred by the lapse of tiventy years from the time when the waste was committed. If equity is to follow the law, this Court is bound to adopt the rule which the statute has laid down, and to allow the same time for making a claim of this kind, which But see the statute gives, for making a claim to the land itself." Morris v. Morris, 4 Jur. N. S. 964. In a case where a tenant for life in remainder filed a bill against the representatives of a prior tenant of life who had been dead nearly twenty years, seeking an account for timber improperly

323

* 8S0

GARTH

V.

COTTON.

felled by him, Lord Romilly dismissed the bill with costs on account of the delay: Harcourt v. White, 28 Beav. 303. It is clear, howe\er, according to the authorities before noticed, that the claim of the plaintiff ought to have been considered as barred in six years from the death of the prior tenant for life. The time of twenty years would now, it seems, under The Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57) be reduced to

twelve years.
It seems, however, that

waste
arise,

fells

where a tenant for life impeachable for timber without authority, and invests the produce of
treats
it

the timber,

and

as a trust fund, in

which case a

trust

would

then he would have constituted himself a trustee for the persons entitled to the estate, and no time will be a bar to the right of recovery against him: Seagram v. Knight, 3* L. R. Eq. 398; 2 L. R. Ch. App. 628. After long delay in taking proceedings against a tenant for life for the waste, the Court will endeavour to deal liberally towards him: Bagot v. Bagot, 32 Beav. 509. As to acquiescence in waste, and the release or abandonment of a richt in respect thereof, see Duke of Leeds v. Amherst, 2 Ph. 117, 125, 124, 125; Gresley v. Mousley, 10 W. R. (L. J.), 222; 3 De G.
F.

&

J.

433.

Waste is substantial [Doctrine of Equitable Waste Restated. to the reversion, done by one having an estate of freehold Adams Eq. 208. or for years, during the continuance of the estate. Everything is waste which occasions a permanent injury to the

damage

inheritance. The situation of this country requires an application of the rule different from that which might be proper in England. The principle acts of waste are removing articles affixed to the freehold, cutting timber, converting arable land into pasture or The essential character of vica versa and opening new mines. waste is, that the person who commits it is in rightful possession. In addition to the waste as recognized by the law Courts, there
is also a kind of waste which equity takes cognizance of, namely equitable waste, which arises where the owner of a particular estate, made impeachable for waste at law, is committing waste in a manner not contemplated by the donor. The principle upon which the court interferes with a tenant for life, in respect to equitable waste is that he is using his powers unThus if fairly, i. e. making an unconscientious use of his powers. the tenant for life wantonly destroys trees planted or left stauding around a house for ornament, such destruction equity regards as

waste, even if the life estate was made without impeachment for So the cutting of young saplings, not fit for the purposes waste. of timber, falls under this head. The opening and working of new mines and quarries by a tenant

324

LESTER

V.

FOXCROFT.

* 881

for lifo impeachable for waste, has often been considered, and the rule generally appears to be that when a mine or quarry 1ms been open for a restricted or definite purpose, it does not give the right to work it for commercial prolit, but when it is once opened the sink-

ing of a now pit or shaft in the same vein, or the breaking ground in a new place in the same rock is not necessarily the opening of a

new mine or quarry. Both the common law and the statutory remedies were not efficient in preventing waste and the plaintiff could never be adequately redressed, but equity has interposed a remedy, or rather a preventative by a writ of injunction which rostraina the defendant from committing waste.]

LESTER

[or

LYSTER] v. FOXCROFT OTHERS.

April
1th, 1701.
p.

AND

[*881]

[reported colles's
[S. C. cited 2

0.

108.]

Vern. 456, nom. Foxcroft

v.

Lister; Gilb. Rep. 4; Prec.

v.

Ch. 519, 52G, nom. Leicester

Foxcroft.]

Part Performance of a Parol Contract respecting Land. Specific performance of a parol agreement to grant a lease decreed, notwithstanding the Statute of Frauds, after acts of part-performance on the part of the lessee by pulling doicn an old house, and building new houses according to the terms of the agreement.

of an ancient

was seised in fee of a part messuage called Wildhouse, in the parish of St. Giles's-in-the-Fields, in the county of Middlesex, and possessed of other part thereof for a long term of years, and agreed with several builders to pull down parts thereof, and build new houses thereon; and about 25th March, 1G95, proposed to make such agreement for part of the said houe with appellant, and promised to assist him with money without interest, in case he should want it to

The appellant

stated, that Isaac Foxcroft

finish the building;

and

it

was particularly agreed between them, 325

882

LESTER

V.

FOXCROFT.

that apellant should at his

own

cost pull doivn

a certain part of the

messuage, and build thereon fourteen or more good messuages; and that Foxcroft should, in consideration thereof, lease the said part to
appellant, from Michaelmas, 1695, for ninety-nine years, at a pep-

per corn for the

eight years.

first

year,

and

150Z. yearly rent for the last ninety-

dum

At the time of making such agreement, there ivas no memoranor note thereof in writing; but in performance of the agreement appellant entered into that part of the messuage, and at his own cost pulled down the same, and built several new [*882] houses thereon ( the whole fourteen * being almost finishabout ed), and therein disbursed several thousand pounds and several sums borrowed from Foxcroft 2000Z. his own money upon his own securities, yet unsatisfied, and was all along in possession, and acted as sole proprietor and owner, and was acknowledged as such by Foxcroft, who frequently declared that he had only a ground rent, and that appellant was the landlord; and as any of the new houses were finished, appellant demised the same in his own name, received the rents, and Foxcroft never received

nor claimed any part thereof. About August, 1698, Foxcroft (being then ill of the sickness whereof he died) made his will, and his daughter, Elizabeth Foxcroft, sole executrix;

and devised to his second son, Isaac Foxcroft, messuage called Wildhouse; and if he died under twenty-one, to his eldest son Henry Foxcroft, his daughter Elizabeth, and Benjamin Whichhis heirs and executors, all his estate in the said ancient
cott,

and appointed Francis Nicholson guardian of his son Isaac, And let and set for such time during his minority. immediately after making the said will, he delivered it to appellant's wife, to let the appellant see there was nothing therein inconsistent with his said agreement; and ordered her to get a lease prepared speedily according to the agreement; and delivered to her
with power to

two building leases executed by him, in pursuance of like agreements with others, as precedents to have appellant's lease drawn by; and appellant accordingly caused the leases to be prepared, bearing date about the time of the said agreement, and brought

two parts thereof to Foxcroft to be executed, who caused both of them to be read to him, and approved of the same; but observed that there was a mistake in one part thereof in his name, John being put for Isaac, and disliked that the sealing and delivery was not 326

LESTER

V.

FOXCROFT.

* 883

endorsed on the back thereof; and thereupon ordered appellant to

made by tbe same hand that engrossed the deeds, and then to bring them again, and he would execute them; and often expressed his dissatisget the mistake amended, and the endorsement * faction that they were not brought back for execution as
[

* 883

soon as he expected, and was under great uneasiness of

mind

lest

ho should die before

it

was done.

And
had

appellant, a few days before the death of Foxcroft, brought

the deeds, so amended, to his house, to have them so executed as he

directed, but respondent refused to let appellant see or speak

with Foxcroft, and used several indirect and unfair methods to prevent him from executing the said leases, by means whereof he died without executing them; and since his death, respondents refused

whereon appellant, in Chancery for a specific execution of the agreement, and the cause being heard, Gth March, 1700, the Lord Keeper (a) declared that there was no sufficient proof of the said agreement, and ordered appellant's bill to stand dismissed without any relief which decree appellant insisted ought to be reversed, for that the agreement was sufficiently proved; and though not originally reduced into writing, occasioned by the entire confidence the parties had in each other, yet the same having been, at appellant's great expense, so far executed on his part, there ought to be a reciprocal performance of it on the other part ; and the rather so, as the terms of the agreement were reduced to a certainty by the lease prepared by direction of the lessor, and the execution thereof prevented by the unfair practices of the respondents, or some of them.
to execute leases, according to the agreement,

Hilary Term, 1698, exhibited his

bill in

The respondents, in affirmance of the decree (b), alleged, that made his will, dated 30th August, 1698, of the im port stated by appellant, and died 15th September following; and,
Isaac Foxcroft
in Hilary

Term then

next, appellant filed his bill against respondents

agreement expended; and that respondents had answered, that they knew not that appellant was any ways concerned in pulling down and rebuilding the premises, otherwise than as agent or servant for the testator, at whose
proper charge and expense they insisted the work was done; and denied that any such agreement for a lease was ever made by the
(a)
{b)

for a specific execution of a parol

Sir
J.

Nathan Wright

Jekyll, Hen. Poley, counsel for the appellant.

327


* 885 * 884
]

LESTER

V.

FOXCROFT.

*and showed that the appellant was greatly indebted to the testator before any building began, and that the testator had no other way to obtain his debt but by employing him in work; and that the testator, though of perfect understanding, had not taken any notice of such supposed agreement in his will; and that the appellant had not required a performance thereof, for near three years and a half after, nor until so near an approach of the testator's death; and showed, further, that
[

testator to the appellant;

three of the appellant's witnesses were considerable legatees in the

testator's will,

and that their evidence tended

to enlarge the per-

sonal estate for their

own

benefit; and, finally, insisted, that noth-

ing of such pretented agreement being in writing, and signed by either of the parties, the Statute made for preventing frauds and
perjuries (29 Car.
tences.
2,
c.

3),

was a

full

bar to the appellant's

t>re-

John Clapham, counsel for respondents. Upon hearing counsel on this appeal, it was ordered and adjudged by the Lords, that the decretal order of dismission complained of should be reversed, and that the respondent, Isaac Foxcroft, or such other of the respondents to whom the estate in
question should come, by virtue of his father's
executor,
will, should,

Die Lunce, 7 Aprillis, 1701

when

he or they should be of age, execute to the appellant Lyster, his

&c, such a lease

of the premises in question, as

was pre-

pared and approved of by the said Isaac Foxcroft, the father, before his death,

and that the appellant and

his assigns should, in the

meantime, hold and enjoy the same, under the covenants and agree-

ments in the said intended lease contained, discharged of all incumbrances done by said Isaac Foxcroft, or any claiming under
him.

Lords' Journ.

vol. xvi., p. 644.

"The

Statute of Frauds (29 Car.

2, c.

3)," observes

Lord Redes-

no action or suit shall be maintained on an agreement relating to lands, which is not in writing, signed by the party to be charged with it; and yet the Court is in the daily * 885 ] habit *of relieving, where the party seeking relief has [ been put into a situation which makes it against consicence in the other party to insist on the want of writing so signed, The first case (apparently) of this kind was as a bar to his relief. Foxcraft v. Lyster, cited 2 Vera. 456, and reported in Colles'a Pari.
dale, "says, that

328

LESTER

V.

FOXCROFT.

* 885

That case was decided on a principle acted upon in Cas. 108. courts of law, though not applicable by the modes of proceeding in It was against conscience to a court of law to the particular case. Buffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser, and the other party to enjoy the advantage of the money he had laid out. At law, fraud destroys rights. If I mix my corn with another's, ho takes all; but, if I induce another to mix his corn with mine, leanThe law in that case does not not then insist on having the whole. give me his corn. The caso of Foxcraft v. Lyster, therefore, I conceive, was decided on clear principle; though, whether the cases founded on that case have been all so well considered, I will not take upon me to say. But it appears from these cases, that courts of equity have decided on equitable grounds, in contradiction to the positive enactment of the Statute of Frauds, though their proceedings are Bond v. Hopkins, 1 S. & L. 433. See in words included in it:" also CUnan v. Cooke, 1 S. & L. 41 Duke of Leeds v. The Earl of Amherst, 20 Beav. 239; Dillwyn v. Llwellyn, 10 W. R. (L. C.) 742. In order that an agreement may be taken out of the Statute of Frauds by acts of part performance, there must be a valuable conIn re sideration on the part of the person seeking to enforce it: Hudson, Creed v. Henderson, W. N., May 9, 1885, p. 100 The doctrine of part performance applies only to interests in land (ib. ). Hence where a person promised to contribute a gross sum to a charity payable by instalments, the mere payment of some of the instalments, will not enable the committee of the charity to recover the remaining instalments? Ib. The principle on which the Court proceeds in these cases is this, that even an Act of Parliament shall not bo used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets a title under that Act, and imposes upon him a personal obligation, because he applies the Act as an instrument for accomplishing See, also, Haigh a fraud: Per Lord Westbury, 4 L. R. Ho. Lo. 97. v. Kaye, 7 L. R. Ch. App. 469; but see the remarks of Cotton, L. J., in Hunt v. Wimbledon Local Board, 4 C. P. D. 61. [The doctrine of part performance is recognized in most of the states of the Union: Miller v. Ball, 64 N. Y. 286; Hardesty v. Richardson, 44 Md. 617; Ottenhouse v. Burleson, 11 Texas, 87; Campbellv. Freeman, 20 W. Va. 398; Gibbeny v. Burmasster, 3 P. F. Smith, 332; McCuo v. Johnson, 1 Casev, 306; Pleasanton v. Raughley, 3 Del. Ch. 124; Arguella v. Eding'er, 10 Cal. 150; Gaibraith v. Galbraith, 5 Kansas, 402; Printuh v. Mitchell, 17 Ga. 558.] It becomes important then to consider what acts on the part of one party are of such a nature as to take a parol agreement out of the Statute of Frauds, so as to render it inequitable and unjust that
;

329

* 886

LESTER

V.

FOXCROFT.

another party should take advantage of that Statute for the purpose
of getting rid of his agreement. Acts merely introductory to and done previous to an agreement, cannot be presumed to be done in pursuance of it, and cannot thereParker v. Smith, 1 fore be considered as acts of part performance.
Coll. 608, 623.

*Acts, moreover, which, though subsequent, are merely anan agreement, although attended with expense, are Thus, the delivery of abnot considered acts of part performance. stracts of title, giving orders for conveyances to be drawn and engrossed, giving instructions for a lease, going to view an estate, putting a deed into a solicitor's hands to prepare a conveyance, measuring the estate, employing surveyors to value timber thereon, or fixing upon persons as appraisers to value stock, appointing a person to make a valuation of the land, registering deeds, the appropriation of money, though with a view to an intended purchase, the release of a right from a third party for a valuable consideration by the plaintiff in pursuance of a condition of the contract, and similar acts of an equivocal nature, are not sufficient acts of part performance to take a parol agreement out of the statute: Haivkins v. Holmes, 1 P. Wms. 770; Pembroke v. Thorpe, 3 Swanst. 437, n.; Clerk v. Wright, 1 Atk. 12; Whaley v. Bagnel, 1 Bro. P. C. 345; Cole v. White, 1 Bro. C. C. 409, cited; Whitbread v. Brockhurst, 1 Bro. C. C. 412; Whitchurch v. Bevis, 2 Bro. C. C. 559; Redding v. Wilkes, 3 Bro. C. C. 400; O'Reilly v. Thomson, 2 Cox, 271; Cooke v. Tombs, 2 Anst. 420;
[

886 ]

cillary to

Cooth
v.

v.

Jackson, 6 Ves. 17, 41

Stokes

v.

Moore, 1 Cox, 219;

Frame

Dawson, 14 Ves. 386; Phillips v. Edwards, 33 Beav. 440; East India Co. v. Nuthumbadoo Veerasawmy Moodelly, 7 Moo. P. C. 482,
497. ture of a written

raised but not decided whether the signais an act of part performance of a parol See Jervis v. Berridge, 8 L. R. Ch. App. 351, 360. See, agreement. afso, Clifford v. Turrell, 1 Y. & C. C. C. 138. Payment of part (Clinan v. Cooke, 1 S. & L. 40; Seagood v. Meale, Prec/Ch. 560; CHerlihy v. Hedges, 1 S. & L. 123), or even of all the purchase-money will not be considered an act of part performance to take a parol contract cut of the Statute of Frauds: Hughes v. Nor will payment of the auction Morris, 2 De Gex, Mac. & Gr. 356. duty: Buckmaster v. Harrop, 7 Ves. 346. But admission into possession having unequivocal reference to the contract, has always been considered an act of part performance. [It is well settled that if a person goes into possession under a contract, and makes improvements it will be sufficient to take the case out of the statute: Dunn v. Stevens, 94 Ind. 181; Peckham v. Barker,

The question has been

document

8 R. I. 17; Wack v. Sorber, 2 Wharton, 387; Freeman v. Freeman, 43 N. Y. 34; West v. Bundy, 78 Mo. 407; Dennison v. Hoagland, 67 In some cases entry into possession alone has been held 111. 265. to be sufficient: Pugh v. Good, 3 W. & S. 56; Green v. Richards, 8

330

LESTER

V.

FOXCROFT.

* 887

C. E. Green, 32, S. C. on Appeal, id. 539; Brock v. Cook, 3 Porter, 464.] The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorise an inquiry into the terms, the Court regarding what has been done as a consequence of contract or tenure (Morphett\. Jones, 1 Swanst. 181; Barrett v. (Join eserra, Bunb. 94; Earl of Aylesford's case, 2 Stra. 783; Lacon v. * Mertins, 3 Atk. 1 Wilis v. Stradling, 3 Ves. [ * 887 ] 381; Boivers v. Cator, 4 Ves. 91; Gregory v. Mighell, 18 Ves. 328; Kine v. Balfe, 2 Ball & B. 343; Pain v. Coombs, 3 Sm. & Giff. 449, 1 De G. & Jo. 34; Shillibeer v. Jarvis, 8 De G. Mac. & G. 79; Wilson v. West Hartlepool Railway Company, 34 Beav, 187; 2 De G. Jo. & Sm. 475; Coles v. Pilkington, 19 L. R. Eq. 174) a fortiori where, as in Lester v. Foxcroft, the person seeking specific performance has laid out money in building or in improvements. See Floyd v. Buckland, 2 Freem. 268; Mortimer v. Orchard, 2 Ves. Jun. 243; Toole v. Medlicott,! Ball & B. 393; Wheeler v. D'Esterre, 2 Dow. 359; Norris v. Jackson, 10 W. R. (V.-C. S.) 228; Crook v. Corporation of Seaford, 6 L. R. Ch. App. 551. But in all these cases, in order to amount to part performance, the acts must be unequivocally referable to the agreement; and the ground, on which Courts of equity have allowed such acts to exA party who has perclude the operation of the statute, is fraud. mitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat That is the principle, but the those acts as if it had never existed. acts must be' referable to the contract: Clinan v. Cooke, 1 S. & L. 41; Morphett v. Jones, 1 Swanst. 181; Attorney General v. Day, 1 Ves. 221; Walker v. Walker, 2 Atk. 100; Buckmaster v. Harrop, 7 Ves. 346; Whitbread v. Brockhurst, 1 Bro. C. C. 417: S. C, 2 V. & B. 154, n.; Hawkins v. Holmes, 1 P. Wms. 7.70; Wills v. Stradling, 3 Ves. 378; Meynell v. Surtees, 3 Sm. & Giff. 101; Price v. Salusbury, 32 Beav. 416; Hollis v. Edicards, 1 Vern. 159, and Mr. Raith[Possession in order by's note; Farrall v. Davenport, 3 Giff. 363. to take the case out of the statute must be by virtue of the contract or it will not be sufficient, and as a general rule anything that is relied on to take the case out of the statute must be done in pursuance v. of the contract, and must not be referable to another title:
;

Ham

Goodrich, 33 N. H. 38; Lester R. R, 51 Ga. 199.]

v.

Kinney, 37 Conn. 9; Halston

v.

Moreover it is essential that possession should bo delivered according to the contract, and not obtained wrongfully, otherwise it will not be considered as an act of part performance: Cole v. White, [Robertson v. Robertson, 9 Watts, 1767, 1 Bro. C. C. 409 cited. 32; Smith v. Smith, 1 Rich. Eq. 130; Sanborn v. Sanborn, 7 Gray,
142.]
It seems, however, that

even where possession has been taken

331

* 8S8

LESTER
if

V.

FOXCROFT.

subsequently the owner allows a stranger to reit may he treated as an act of part performance: v. Coombs, 1 De G. & Jo. 34; see also Miller v. Finlay, 5 L. T. (N.S.) 510; Gregory v. Mighell, 18 Ves. 331. In Millard v. Harvey, 13 W. R. (M. E.) 125, 34 Beav. 237, the plaintiff's wife, without his knowledge, paid 150Z. to the defendant with the desire of purchasing afield for the plaintiff. The defendant refused to sell, but kept the money and paid no interest. A few days afterwards he told the plaintiff he might have the field to put his horse in. The plaintiff occupied it for ten years with* ignorance of what his wife [ *8S8 ] out paying any rent, and in had done. It was held by Sir John Romilly, M. R., that as there was a contract with the wife as agent for her husband, subsequently adopted by bim, and accompanied by possession for ten years, the Court ought to decree specific performance. Possession is considered an act of part performance of a parol contract, not only in the case of sales or leases, but also of other contracts whereby the possession may be explained (Lincoln v. Wright, 4 De G. & Jo. 16; 28 L. J. (Ch.) 705; Coles v. Pilkington, 19 L. R. Eq. 174); especially in the case of family arrangements: Stockley v. Stockley, 1 V. & B. 23; Williams v. Williams, 2 Dr. & Sm. 378; 2 L. R, Ch. App. 294, 304, 305; Neale v. Neale, 1 Keen, 672; Good v. Good, 33 Beav. 314. Acquiescence moreover in possession for a long lapse of time will bea circumstance taken into consideration by the Court against allowing the Statute of Frauds to be setup: see Blachford v. Kirk patrick, 6 Beav. 232; Crook v. Corporation of Seaford, 10 L. R. Eq. 678; 6 L. R. Ch. App. 551. Where subsequently to the institution of a suit for specific performance of a parol agreement, upon the ground of part performance the plaintiff has obtained by Act of Parliament the means of quieting his possession, without further assistance, from a Court of equity, inasmuch as the jurisdiction in cases of specific performance is discretionary, his right to a decree will be materially affected where it depends on the principle of protecting the possession: Mey-

without consent,

main Pain

in possession,

& Giff. 101, 116. of money by a stranger who enters into possession, if it be such as would probably take place under the alleged agreement, will, as decided in the principal case, be an act of part performance, as where an intended lessee entered and built upon the premises: Savage v. Foster, 9 Mod. 35, post, vol. 2; and see Sutherland v. Briggs, 1 Hare, 26, post, p. 889; Reddin v. Jarman, 16 L. T. 449; Ramsden v. Dyson, 1 L. R. Ho. Lo. Ca. 129; Plimmer v. Mayor, &c. of Wellington, 9 App. Ca. 699. As between landlord and tenant, it is to be observed that the mere continuance in possession by the tenant is not alone of itself an act of part performance of a parol agreement. See Wills v. Stradling, 3 Ves. 381; Smith v. Turner, Prec. Ch. 561; Savage v.
nell
v.

Surtees, 3

Sm.

The laying out

332

'

LESTER
Carroll,

V.

FOXCROFT.

* 8S9

1 Ball & B. 205; Morphett v. Jones, 1 Swan'st. 181. [Mahana Blunt, 20 Iowa, 142; Johnson v. Glancy, 4 Black, 94; Christy y. Barnhart, 2 Harris (Pa.), 2G0.] But where there is a payment of an increased rent referable to the agreement (see Wills v. Stradling, 3 Ves. 378) by a tenant in possession it has been held to be an act of part performance: Nunn v. Fabian, 1 L. 11. Ch. App. 35. And see Charlwood v. The Duke of Bedford, * 1 Atk. 497; Clarke v. Reilly, 2 I. R. [ * 889] C. L. (Exch.) 422; Howe v. Hall, 4 I. R. Eq. 242; Archbold v. Lord Howth, 1 I. B. C. L. 008; Williams v. Evans, 19 L. B. 557; and see Lord Desart v. Goddard, 1 Wallis Bep. by Lyne, 347; Shepheard v. Walker, 20 L. B. Eq. 059; Conner v. Fitzgerald, 11 L. B. Ir. 100. The laying out of money by the tenant continuing in possession, if it was part of the agreement that money should be laid out, and it is one of the considerations for granting the lease (the laying out of which must be then with the privity of the landlord) it is very strong to take it out of the statute Per Lord Loughborough, C, in In Mundy v. Jolliffe, 5 My. & Cr. Wills v. Stradling, 3 Ves. 382. 107, a tenant from year to year of a farm having, at his own expense, drained the lands upon the farm, and laid down into pasturo the only piece of arable land which the farm contained, and repaired the buildings, pursuant to a parol agreement for a lease, Lord Cottenham, C. (overruling the decision of Sir L. Shadwell, V.-C, reported 9 Sim. 413), upon proof of the agreement, decreed specific performance, saying, there was no doubt of the part performance. And the mere fact that there is an incomplete agreement signed will not, where there have been acts of part performance, preclude See Sidherland v. Briggs, the proof of additional terms by parol. [As to the evidence required in such cases, see Lord's 1 Hare, 20. Appeal, 105 Pa. St. 451; Meyer's Appeal, Id. 432.] There the^ plaintiff was lessee of a house and other premises for a term of thirtyone years, at a rent of G0Z., and was under a covenant to make certain improvements on the property. He was also tenant from year to year of an adjoining meadow belonging to a different proprietor, at The lessor of the house became the purchaser of fhe a rent of 9Z. meadow, and by arrangement between him and the plaintiff, the improvements were extended, and part of the house was made to project over the field, and part of the field was attached to the demised premises; the plaintiff paying about half of the expense of the alterations, which far exceeded the sum he had originally covenanted to lay out, and also signing a memorandum which the lessor dreiv up, whereby he agreed to pay an entire rent of SO/. ,a year for It was held by Sir James Wigram, V.the consolidated property. C, that the extension of tho house into the meadow, by tho plaintiff, with the concurrence of his landlord, was evidence of, and was a sufficient consideration for, a contract to demise the meadow; that the jict of building part of tho house upon the meadow, if it was

v.

333

* S91

LESTER

V.

FOXCROFT.

evidence of any right, was evidence of a right which affected the entire tenement, and that it could not be restricted go as to affect only the part of the meadow actually built upon; that the * 890 ] extension of the house, part of the demised * premises, into [ the meadow and the increase and consolidation of the rents, were evidence that the meadow was to be held for the same term as the demised premises; and that the doctrine with regard to the mutuality of contracts had no application to such a case. See, also, Farrall v. Davenport, 3 Giff. 363; orris v. Jackson, lb. 398; Howe v. Hall, 4 I. R. Eq. 242. And the result is the same where the outlay in part performance of an agreement with the tenant is made by his sub lessee with the assent and approval of the landlord: Williams v. Evans, 19 L. R. Eq. 547; Shillibeer v. Jarvis, 8 De G. Mac. & G. 79, 87. The laying out of money, in order to be an act of part performance, must not be of an equivocal character. Thus, suppose a tenant should set up an agreement for a purchase, and get a witness to swear to it, and then offer as evidence of part performance his possession and cultivation of the land, that could not be deemed an act of part performance, which would have taken place precisely in the same shape, whether there was any agreement for a purchase or not. See Frame v. Dawson, 14 Ves. 388. The fact, moreover, that the act of part performance was such as easily to admit of compensation, has, in some cases, been considered See Frame v. Daivson, 14 Ves. 386, where the alto have weight. leged act of part performance, the rebuilding by a tenant of a party wall, which he was bound to do under the terms of his lease, was held by Sir W. Grant, M. R., to be first equivocal, and secondly, such as easily admitted of compensation. And see Forster v. Hale, 3 Ves. 713; O'Reilhj v. Thompson, 2 Cox, 271. So far as the case of Frame v. Dawson, 14 Ves. 386, depended upon the alleged act of part performance not being effectual because it admitted of compensation, it cannot be considered as rightly decided, because, in fact nearly every act of part performance would come within that category; but it must be considered as rightly decided upon the ground that there was no part performance. See the remarks of Matins, V.-C, in Williams v. Evans, 19 L. R. Eq. 557; and in Parker v. Smith, 1 Coll. 608, Knight-Bruce, V.-C, said, " The act done in that case was not distinctly referable to any agreement. It might and would have been done without any agreement; it was a matter of duty independently of any agreement." The surrender of a lease by the lessee to the lessor, on the faith of a parol agreement by him to grant a new lease to a third party, has been held in Ireland to be an act of part performance, and specific performance was decreed against the representatives of the lessor: Re Cooke's Trustees' Estates, 5 L. R. Ir. 99. Upon the same principle in * Parker v. Smith (1 Coll. [ *891] 608), the landlord of a coal set, having four tenants in

334

LESTER

V.

FOXCROFT.

* 892

partnership together holding under a lease, several years of which were unexpired, entered into a parol agreement with all four upon the surrender of the old lease to grant a new one to two of the partupon the terms that the partnership should ners the plaintiffs, be dissolved, and that the plaintiffs should release the two retiring The dissolution and release so agreed partners from all liability. upon took place, by which the plaintiffs took upon themselves the Sir J. L. K. liability which had before been shared by the four. "It Bruce, V.-C, decreed specific performance of the agreement. is," said his Honor, "part of the entire agreement that the dissoluThey do take place. It is imtion and release shall take place. possible to treat these acts otherwise than as acts of part performance, taking the case out of the Statute of Frauds." A parol agreement, in order that it may be taken out of the statute by acts of part performance, must bo of such a character that the Court would be able the decree specific performance thereof, if Thus, is Kirk v. The Guardians of Bromley it were in writing demurrer to a bill by a builder praying an account a 2 Ph. 640, Union, and payment for work and labour done, alleging fraud and acts of part performance, was allowed by Lord Cottonham, C. "Here," said his Lordship, "the attempt is to make the want of writing a ground of jurisdiction; but, if this principle be sound, why may not all parol contracts, which the Statute of Frauds requires should be in writing, be enforced in equity, where the plaintiff has acted upon the faith See also of the contract with the knowledge of the defendant." Crampton v. Varna Railway Co., 7 L. B, Ch. App. 5G2, where it was held that acts of part performance in a similar case, did not give the Court of Chancery jurisdiction, in consequence of the plainr by reason of the agreement with a tiff having no remedy at law company not being under seal. Where an engagement with respect to property is purely a matter of honour, and not a legal obligation, so that each party is left to dispose of such property as he pleases, a part performance thereof See Lord Walpole v. Lord will not give the Court jurisdiction. There two testators, on the same day, executed Orford, 3 Ves. 402. a will and codicil bearing respectively the same date, and attested by the same witnesses. On the death of one of the testators it was argued that there had been a verbal contract to make mutual wills, and that there was a part performance by the execution of the instruments which proved the contract. Lord Rosslyn, C, however, *dismissed the bill filed for the purpose of carrying [ * 892 J the alleged engagement into effect. "From the co-existence," said his Lordship, "of the instruments, and the execution at the same time, I do infer that both testators considered it an honourable engagement; that leaves the party to dispose as he pleases and this rests upon nicer points than a Court of Justice can decide upon." It must, also, be borne in mind, "that part performance, to take a case out of the Statute of Frauds, always supposes a completed

335

* 893

LESTEB

V.

FOXCROFT.

There can be no part performance where there is no agreement. completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement, and by force of Per Lord Brougham in Lady Thynne v. Earl of the agreement." Glengall, 2 H. L. Cas. 158; In re Thomas Ryan, 3 I. 11. Eq. 238. But see Laird v. Birkenhead Railway Co., Johns. 500. The terms, moreover, of the contract must be certain and unambiguous: Clinan v. Cooke, 1 S. & L. 22; Boardmanv. Mostyn,Q
Ves. 467, 470; Symondson v. Tiveed, Prec. Ch. 374; Foster v. Hale, 3 Ves. 712, 713; Savage v. Carroll, 1 Ball & B. 265, 551; S. C, 2 Tooke v. Medlicott, 1 Ball & B. 404 Lindsay v. Ball & B. 451 Linch. 2 S. & L. 1 Reynolds v. Waring, 1 You. 346 Price v. Assheton, 1 Y. & C. Exch. C. 441.
;

Companies aud corporations are bound equally with individuals

acts of part performance: Wilson v. The West Hartlepool Railivay Company, 10 Jur. N. S. 1064; 11 Jur. N. S. 124; 13 W. R. (M. R.) 4; lb. (L. J.) 361; 34 Beav. 187; 2 De G. Jo. & Sm. 475 Steeven's Hospital v. Dyas, 15 Ir. Ch. Rep. 405; and see the observations in Hunt v. Wimbledon Local Board, 4 C. P. D. 52, 60, 61, 62; Melbourne Banking Corporation v. Brougham, 4 App. Ca. 156.

by

An agreement by a corporation to let land upon lease, although not under their seal, will be enforced against the corporation, where there have been acts of part performance on the part of the intended lessee: Crook v. Corporation of Seaford, 6 L. R. Ch. App. 551.
Sales of land at an ordinary auction (Blagden v. Bradbear, 12 Ves. 472), and in bankruptcy (Ex parte Cutis, 3 Deac. 267) are A purchaser, therewithin the Statute of Frauds (29 Car. 2, c. 3). fore at such sales is not bound, unless there is some agreement in writing. The receipt or entry in his book by an auctioneer may be a note or a memorandum within the Statute of Frauds, but for that purpose it must, in itself, contain the agreement, or, by reference to

something
[

else,

*893]

bear, 12 Ves. 471; *

must show what it is: Blagden v. Bradand see Rishton v. Whatmore, 8 Ch.

D. 467, and the cases there cited.

Sales, however, before a master in Chancery, have been held to be not within the statute (Attorney -General v. Day, 1 Ves. 218; parte Cutts, 3 Deac. 267 Blagden v. Bradbear, 12 Ves. 472; Lord v. Lord, 1 Sim. 503), nor, it seems, would be sales under the

Ex

present practice of the Cjurt

Dart. V.

&

P. 197, 5th ed.

"Where, moreover, a purchaser of land at an auction takes possession of a lot knocked down to him, and cuts down crops, which he could only do in the character of purchaser, it will be held to be a part performance of the verbal contract entered into when he bid for the lot in the auction room, and specific performance will be decreed against him (Buckmaster v. Harrop, 13 Ves. 474); but where a person has purchased two or more lots sold separately at a sale by

336

LESTER

V.

FOXCROFT.

* 894

miction, nets of part performance with regard to one rot will not make good an agreement with regard to the other lots. lb. It has been said in a recent case, that the doctrine of part peris not to be extended by the Court, inapplicable to the case where a trustee has a power to lease, at the request, in vjriting, of a married woman, which has See Phillips v. Edwards, 33 Beav. 440. not been made. This, however, is a mere dictum, as there was no act of part per-

formance of a parol agreement

and that

it is

formance in the case. It has been laid down, however, as a general rulo that a parol agreement to sell or grant a lease entered into by a tenant for life with a leasing power, coupled with a part performance by the purchaser or lessee during the life of the tenant for life, will not bind the remainderman, unless he acquiesced in the part performance and was aware of the agreement (Blore v. Sutton, 3 Mer. 237; Morgan v. Milman, 3 De G. M. & G. 24, 33; Lotoe v. Swift, 2 Ball. & B.
529; O'Fay v. Burke, 8 I. Ch. R. 225), or unless, after the death of the tenant for life, the remainderman lies by and allows the purchaser or lessee to expend money in improving the estate (Stiles v. Compev, 3 Atk. 692); and the law upon this subject has been held not to be affected by the Leases and Sales of Settled Estates Act, (19 & 20 Vict, c. 120), nor by the Landed Property (Ireland) Im-

& 24 Vict, c. 153) Hope v. Lord Cloncurry, 8 I R. Eq. 555. A family arrangement for the division of land, although only verbal, has been carried out where there were acts of part performance by the parties interested, holding and dealing with the land in acWilliams v. Wilcordance with the terms of the arrangement liams, 2 Dr. & Sm. 378, 2 L. R. Ch. App. 294; Cood v. Good, 33 Beav. 314. * Although it is clear, according to more recent authori- [* 894 ] ties overruling Dundas y. Didens (1 Ves. Jun. 196; S. C, 2 Cox, 235), that where a parol contract is made in consideration of marriage, the subsequent marriage will not be an act of part performance so as to take the case out of the Statute of Frauds, inasmuch as tho statute expressly provides that a contract in consideration of marriage shall not be binding unless it be in writing (Lasence v. Tierney, 1 Mac. &G. 551 Warden v. Jones, 23 Beav. 487, 2 De G. & Jo. 76; Cooper v. Wormald, 7 W. R. (M. R. ) 402; Caton v. Caton, 1 Law. Rep. Ch. App. 137, affirmed 2 L. R. Ho. Lo. 127, reversing S. C, 13 W. R. (V.-C. S.) 801, 34 L. J. (Ch.) 564; WAskie v. WCay, 2 I. R. Eq. 447; and see Troivell v. Shenton, 8 Ch. D. 318, 326, where the question turned on Lord Tenterden's Act (9 Geo. 4, A parol contract nevertheless may be taken out of the statc. 14). ute by acts of part performance independently of the marriage. Thus, in Surcombe v. Pinniger, 3 De G. M. & G. 571, a father previous to the marriage of his daughter told her intended husband that he meant to give certain leasehold property to them on their * 22 WHITK OX EQUITY. 337
provement Act, 1860 ( 23
: :

* 895

LESTER

V.

FOXCROFT.

After the marriage lie gave up possession of the propmarriage. erty to the husband, to whom he directed the tenants to pay the The husband also rents, and handed to the husband the title deeds. expended money upon the property. It was held by the Lords Justices, that there had been sufficient part performance of the " In parol contract to take the case out of the Statute of Frauds. this case," said Lord Justice Turner, " there is a part performance by the delivering up of possession to the husband a fact which has been always held to change the situations and rights of the parties, and there has been considerable expenditure by him on There is, therefore, here what was wanting in Lasthe property. sence v. Tierney (1 Mac. & G. 551), viz. acts of part performance, The difficulty in these cases is that the besides the marriage. Statute of Frauds presents an obstacle to suing upon the agreement. But it has been held, in many cases, that if there be a written agreement after marriage in pursuance of a parol agreement before marriage, this takes the case out of the statute, so does also part perSee also Taylor v. Beech, 1 Ves. 297; Barkivorth v. formance." Young, 4 Drew. 1; Cooper v. Wormald, 27 Beav. 260; Ungley v. Ungley, 4 Ch. D. 73, 5 Ch. D. 887. Acts of part performance by a husband, in a case not coming within the Married Women's Property Act, 1882, will not enable him to claim specific performance again.st the heir of his * entered into after [ * 895 ] deceased wife of a parol agreement marriage by his wife, to convey lands to him of which she was seised in fee, but not to her separate use, because a married woman during coverture, as well in equity as at law, was under a and unless the provisions legal disability to convey her real estate of 3 & 4 'Will. c. 74, were complied with, a deed executed by her for the purpose, and a fortiori a parol contract by her was void Williams v. Walker, 9 Q. B. D. 576, 581. And see Cahill v. Cahill,

8 App. Ca. 420. Although marriage is not a part performance of a contact within the Statute of Frauds, nevertheless where a person marries upon the faith of representations or promises made to him for the purpose of influencing his conduct with reference to the marriage, the person making such representations or promises will be compelled in equity to make them good, not only at the instance of the person to

whom they were made (Hammersley v. De Biel, 12 C. & F. 45; S. C, nom. De Biel v. Thompson, 3 Beav.469; Payne v. Mortimer, 1 Giff. 118;
4
Jo. 447; Altx. Alt, 4Giff. 84; and see Coverdale v. East15 R. Eq. 121; Coles v. Pilkington, 19 L. R. Eq. 174); wood, but also at tho instance of the issue of the marriage (Walford v. Gray, 13 W. R. (V.-C. S.) 335; lb. (L. C.) 761). See also Skidmore v. Bradford, 8 L. R. Eq. 134. The representation or promi e must, however, be clear and absolute (Randall v. Morgan, 12 Ves. 67; and see Maunsell v. White, 1 Ja & L. 567; Loxley v. Heath, 27 Beav. 523; 1 De G. F. & Jo.

De G. &

338

LESTER
489;
5;

V.

FOXCROFT.
407; Jameson
v.

896

Kay
v.

v.

Cook, 3 Sra.

&

Giff.

Stein, 21 Beav.

Viret

Viret, 17 Cb. D. 365, n. );

and wbere

it is

contained in

a lost document parol evidence is admissible as to its contents: Gilchrist v. Herbert, 26 L. T. liep. (N. 8.) 381. A parol promise, moreover, made prior to a marriage cannot be

enforced if tbe marriage did not take place by reason of any reliance on such promise, or if it was not acted on as a reason and consideration for tbe marriage: (Goldicut v. Townsend, 28 Beav. 445; Jameson v. Stein, 21 Beav. 5; Dashwood v. Jermyn, 12 Cb. D. 776); and a fortiori wbere it was waived by tbe parties (Caton v. Caton, 2 L. It. Ho. Lo. 127, 142); as, for instance, by a formal agreement for a settlement: In re Badcock, 17 Cb. D. 361. And wbere tbe representation is merely of wbat a party intends to do, without pledging bimself to its performance, or wbere the promise is of such a character that tbe person making it refuses to enter into a contract, giving tbe party to whom it is made to understand that he must rely on or trust to, his honor, it has been held, though with great conflict of opinion, that the Court of Cbancery *cannot enforce the performance of the repre- [ * 896 ] sentation or promise: Maunsell v. White, 1 Jo. & L. 539; 4 Ho. Lo. Ca. 1039; and see Jorden v. Money, 5 Ho. Lo. Ca. 185; S. C. nom. Money v. Jorden, 15 Beav. 372; 2 De G. Mac. & G. 318; with reference to which case Lord Selbourne L. C, in Maddison v. Alderson, 8 App. Cas. 473, observed that be always understood that it had been decided in Jorden v. Money, tbat tbe doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged io be at the time actually in existence, and not to promises de futuro, whicb, if binding aC all, must be binding as contracts. See the distinction as illustrated by Proley. Soady,2 Giff. 1; Pigott v. Stratton, Johns. 341, 1 De G. F. & J. 33. And see and consider Citizens Bank of Louisiana v. First National Bank of New Orleans, 6 L. R. Ho. Lo. 352. Although marriage is not, a return toco habitation may be, a sufThus where a husband in a sepaficient act of part performance. ration deed covenanted with a trustee to pay an annuity for life to bis wife, and she shortly before his death returned to him upon the faith of a verbal agreement made to her and her trustee, tbat if she would do so, he would continue to pay the annuity, and would charge it upon his real estate, and the husband having died without having done so, it was held that the verbal agreement, having been in part performed by tbe wife returning to her husband, could be enforced against his devisees: Webster v. Webster, 4 De G. Mac. & G. 437. See and consider Maddison v. Alderson, 8 App. Ca. 467. The doctrine as to part performance has always been confined to epiestions relating to land, and it has never been applied to contracts of service, and it. ought not now, even since the passing of the Judicature Act, 1873, to be extended to cases in which the Court See Britain v. Rossiter, 11 Q. B. D. of Chancery never interfered.

339

897

LESTER

V.

FOXCROFT.
v.

123; and the remarks thereon in Maddison

474.

Alderson, 8 App. Cas.

[The equity of part performance does not extend to contracts concerning any other subject than land.] But it has been recently held that continuance by a woman in service as a housekeeper without wages, and the forbearance to press for wages due to her in thai, capacity, were not sufficient acts of part performance of an alleged parol agreement, whereby her employer in consideration thereof promised to leave her a life interest in an estate, the reason being that the alleged acts of part performance were not unequivocally referable only to the alleged agreement to leave her a life interest: Maddison v. Alderson, 8 App. Ca. 467, affirming Alderson v. Maddison, 7 Q. B. D. 174; reversing S. C, 5 Ex. D. 293; and overruling Loffus v.Maw, 3 Giff.592. * 897 ] * A contract will be taken out of the Statute of Frauds [ where the provisions of the statute have not been complied with, in consequence of the fraud of the person against whom a decree for specific performance is sought: (Maxwell v. Mountacute, Prec. Ch. 526; Walker v. Walker, 2 Atk. 98; Joynes v. Stat ham, 3 Atk. 389; Whitchurch v. Bevis, 2 Bro. C. C. 565; Lincoln v. Wright, 4De G. & Jo. 16, 22; Booth v. Turle, 16 L. R. Eq. 182; Chattock v. Muller, 8 Ch. D. 177; [Where the contract has not been put in writing by reason of the fraud of one of the parties, the case is taken out of the statute as regards that party: Browne Stat. Frauds, Sec. 437-502.] and, therefore, in the principal case, even had there been no acts of part performance of the agreement, if, as was alleged, the execution of the lease had been prevented by indirect and unfair means, there might have been sufficient grounds for the Court to have decreed a specific performance. Another instance in which the Court regards fraud as forming an exception to the statute is thus stated by Lord Eldon, C. "In the case of instructions upon a treaty of marriage; the conveyance being absolute, but subject to an agreement for a defeasance, which, though it does not appear by the conveyance, it can be proved aliunde: Mestaer v. Gillespie, 11 Ves. 628. So likewise where a written instrument appears to be an absolute conveyance either in consequence of the non-execution of a defeasance according to promise, or the fraudulent omission of a clause, parol evidence is admissible to show the true nature of the transaction, and to reduce the absolute conveyance to a mortgage or See Maxwell v. Mountacute, Prec. Ch. 526; Walker v. charge. Walker, 2 Atk. 98; Dixon v. Parker, 2 Ves. 225; Young v. Peachy, 2 Atk. 257; Joynes v. Statham, 3 Atk. .339; Francklyn v. Fern, Bernard. 30; Cotterell v. Purchase, Ca. t. Talb. 61; Spurgeon v. Collier, 1 Eden, 55; England v. Codrington, 1 Eden, 169; Holmes v. Mathews, 9 Moo. P. C. C. 413; Barnhart v. Greenshields, lb. 18; Langton v. Horton, 5 Beav. 9; Williams v. Owen, 5 My. & Cr. 303, 306; Lincoln v. Wright, 4 De G. & Jo. 16; Douglass v. Culverwell,
,

340

LESTER
3 Giff, 251, S. C. 4 R. 92.

v.

FOXCBOFT.

* 898
v.

De

G. F.

&

Jo. 20;

Murphy

Taylor,

1 Ir.

Ch.

Again, although parol evidence on the part of a plaintiff seeking specific performance of a written contract, with a variation supported by such evidence is admissible (Anon. 5 Vin. Ab. 522, tit. 38; Legal v. Miller, '2 Ves. 299; Pitcairn v. Ogbourne, 2Ves. 375), in the absence of a part performance of the agreement with the variation it will be invariably rejected (Laicson v. Laude, 1 Dick. 346; Felly. Chamberlain, 2 Dick 484; Jenkinson v. Pepys, 1 V. & B. 528, S. C. 15 Ves. 521, cited; Higginson v. Clowes, 15 Ves. 516); nevertheless, as a defenee against proceedings for specific performance, parol evidence * is admissible to show that [*898] not only by fraud, but by mistake, or even surprise, the written agreement does not contain the real terms: (Joynes v. Statham, 3Atk. 389); [Grierson v. Mason, 60 N. Y. 394; llowland v. Finney, 96 Pa. St. 192.] and the same result will follow where the written agreement was executed upon the faith of some stipulation varying it (Clarke v. Grant, 14 Ves. 519, and see Jervis v. Berridge, 8 L. K. Ch. App. 351), for in such case specific performance would only be decreed upon the plaintiff submitting to perform the written agreement with the variation. Clarke v. Grant, 14 Ves. 519, and see note to Woolam v. Hearn, vol. 2, post. Lord North, appears to have thought, although he never actually so decided, that, where it was part of the agreement that it should be put into writing, the agreement would be taken out of the StatSee Hollis v. Whiteing or Edwards, 1 Vern. 151, ute of Frauds. 151); Leak v. Morrice, 2 Ch. Ca. 135, S. C. nom. Leake v. Morris, 1 But Lord Thurlow, in Dick 14; Deane v. Izard, 1 Vern. 159. Whitchurch v. Bevis, 2 Bro. C. C. 565, where this doctrine was urged at the Bar, said, "I take that to be a single case and to have been overruled. If you interpose the medium of fraud, by which the agreement is prevented from being put into writing, I agree to it; otherwise, I take Lord North's doctrine, "that if it had been laid in the bill that it was part of the agreement that it should be put. into writing, it would have done," to be a single decision, and contradicted, though not expressly, yet by the current of opinions." See also Wood v. Midgley, 5 De G. Mac. & G. 41, reversing S. C. 2 Sm. &G. 115. In a case, however, which seems to stand by itself Lord Thurloiv allowed the plaintiff to give parol evidence, that at the time the contract (which was afterwards reduced into writing) was entered into a verbal undertaking had been given by the purchaser of a house to the vendor for indemnity against the rent and covenants. Lord Thurlow, admitting evidence of the undertaking, decreed spe"The objection made," said his Lordcific performance thereof. ship, "that the evidence is inadmissible, upon the ground that when the parties have entered into a written agreement, no parol evidence can be admitted to increase or diminish such agreement, is founded

341

* 899

LESTER
a rule that is right.

V.

FOXCROFT.
originally

upon

But where the objection was

made, and promised by the other party to be rectified, it comes among the string of cases in 1 Eq. Ca. Ab. at 230, 231, where it is considered as a fraud on the rule of law." Pember v. Mathers, 1 Bro. C. C. 52; see also and consider Snelling v. Thomas, 17 L. R. Eq. 303; Attorney- General v. Jackson, 5 Hare, 355. *A parol agreement alone, without any acts of part-per[ * 899 ] formance, was under the old practice held to be taken out of the Statute of Frauds by the admission thereof by a defendant to a Bill of complaint, in his answer, unless he insisted upon the Statute by way of defence, for it was considered that the admission of the agreement took it entirely out of the mischief which the statute was designed to obviate (The Attorney -General v. Day, 1 Ves. 221: Laconv. Mertins, 3 Atk. 3; Gunter v. Halsey, Ambl. 586; IAmondson v. Sweed, Gilb. 35, sed vide, Eyre v. Popham, Lofft's Rep. 808, 809); and in the event of the death of such party making the admission, it would have been equally binding against his representatives; lb.

The substantial result of the present system of pleading, is to continue this effect of an admission of the contract in fact, and furthermore to treat the contract as admitted unless it is actually denied, except in the case of an infant, lunatic, or person of unsound Rules of the Supreme Court, 1883, Ord. XIX. rr. 13, 15; mind. see also Fry, Specif. Perf. 247, 2nd Ed. The admission by the vendor of land that he had agreed to sell real estate to a purchaser since deceased, will not be binding on the personal representatives of such purchaser; nor will an admission by a purchaser that he had agreed to buy real estate, bind the The question in all these real representatives of the alleged vendor. cases is, was the deceased himself bound? was there such an agreement as converts the real estate into personal, or the personal estate And in such cases every objection may be taken by other into real ? parties to specific performance which it was competent for the deceased to have taken if he had resisted specific performance during his lifetime. See Buckmaster v. Harrop, 7 Ves. 341, 345; S. C. 13 Ves. 456; Earl of Radnor v. Shafto, 11 Ves. 448, overruling Lacon v. Mertins, 3 Atk. 1. See also Potter v. Potter, 1 Ves. Sen. 437. And upon the same principle the admission of an agreement by the executors of a testator, will not be binding upon the residuary Buckmaster v. Harrop, 7 Ves. 341; &. C, 13 Ves. 456. legatee. Where the defendant admits a parol agreement as alleged, no further proof thereof by the plaintiff is requisite, even although the defendant claims the benefit of the Statute of Frauds, if there are acts of part performance, for by their means the case is taken [McGowen out of the Statute, Coothy. Jackson, 6 Ves. 12, 37, 38. V. West, 7 Mo. 569; Harris v. Knickerbocker, 5 Wend. 638; Smith's Eq. 252.] Where the defendant, under the former practice of the Court of
342

LESTER

V.

FOXCROFT.

* 001

Chancery by answer denied the agreement as alleged, the * 900 ^evidence of one witness on the part of the plaintiff, unless by corroborating circumstances, would it were supported not be sufficient to outweigh the denial by the answer: East India Co. v. Donald, 9 Ves. 275; Morphett v. Jones, 1 Swanst. 172; And the rule probably would Ball & 15. 393. Toole v. Medlicott, still be the same where the defendant, either in answer to interrogatories or in his evidence, positively on oath denied the alleged agreement, [The written admissions of the defendant will not avail Thompson v. Jameson, 1 if he insists on the statute as a bar: Cranch, 205; Story's Eq. Sec. 757; Brooks v. Wheelock, 11 Pick. 439; Robeson v. Hornbaker, 3 N. J. Eq. GO.] Where, however, there is simply a defence, not put in on oath, the court acting upon the rule of law might consider the uncorrob orated evidence of a single witness in support of ihe alleged agree[
|

ment

to be sufficient. AVhere the defendant denies the agreement as alleged, and the evidence adduced by the plaintiff proves an agreement varying from that alleged by him, in some cases the bill has been dismissed without prejudice to the filing of another: Hawkins v. Malfhy, 3 L. R. Ch. App. 188, 195; Lindsay v. Lynch, 2 S. & L. 1, 0, 10;

Woolam v. Hear lie,! Ves. 222, vol. ii., post. But in such cases, the High Court would now probably allow the See Rules of Supreme Court, Order proceedings to be amended. XXVIII.
It is perhaps somewhat doubtful (although it has been done, see The Malton Case, 6 Ves. 470, and the observations thereon of Lord Eldon in Boardman v. Mostyn, G Ves. 470) whether an inquiry as to the terms of an agreement will be directed where it has not been established with sufficient clearness for the Court to make a decree. See Savage v. Carroll, 2 Ball & B. 451; London & Birmingham Railway Company v. Winter, Cr. & Ph. 57, and the observations of Lord Hatherley, C, in Crook v. Corporation of Seaford,Q L. R. Ch. App. 551; S. C, 10 L. R. Eq. G78. In many cases, especially where the possession has been taken and there have been other acts of part performance, there has been a strong inclination quacunque vid to make out the agreement not"Courts of Equity," obwithstanding the conflict of evidence. serves Lord Cottenham, C, "exercise their jurisdiction in decreeing specific performance of verbal agreements where there has been a part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of

Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money, or otherwise acted, in exe[Adams on Equity, 86.] Under such cution of the agreement. circumstances, the Court will struggle to prevent such injustice from being effected; and with that object *it has, [ * 901 J

343

* 902
at the hearing,

LESTER

V.

FOXCROFT.

and when the

plaintiff

cise terms of the agreement,

has failed to establish the preendeavored to collect, if it can, what

the terms of the agreement really were." Mundy v. Jolliffe, 5 My. & Cr. 167, 177. See also Mortimer v. Orchard, 2 Ves. Jun. 243; Laird v. The Birkenhead Railway Co., Johns. 500; Wilson v. The West Hartlepool Railway Co., 34 Beav. 187; S.C.2 De G. Jo. & Sm. 475; Oxford v. Provand, 2 L. R. P. C. 135, 148; Baumann v. James, 3 L. R. Ch. App. 508. Where the variation between the agreement alleged and that proved is immaterial, evidence thereof will not be required, as, for instance, where it consists of some admission by the plaintiff of a term against, or omission of a term favourable to, himself: Clifford v. Turrell, 1 Y. C. C. C. 138. So' where there was an allegation in a bill that the plaintiff, the tenant, was to pay taxes and to do necessary repairs, it was held that the omission of proof thereof was not a substantial variation, first, because the allegation was an admission by the plaintiff against himself, and secondly, because it was immaterial, as in the absence of such stipulation he would have been liable: (Gregory v. Mighell, 18 Ves. 328;) a fortiori will this be the case where the acts, the admission whereof by the plaintiff is against his interest, have been already performed: Mundy v. Jolliffe, 5 My. & C. 167, 176. If, after all the evidence that can be got, any material terms of the contract are doubtful, the Court can make no decree: Clinan v. Cooke, 1 S. & L. 22; Lord Onnond v. Anderson, 2 Ba. & B. 363; Wheeler v. UEsierre, 2 Dow. 359; Blore v. Sutton, 3 Mer. 237; Reynolds v. Waring, You. 346; Monro v. Taylor, 8 Hare, 51; 3 Mac. & G. 719; Tatham v. Piatt, 9 Hare, 660; Stuart v. The London North-Western Railway Co., 1 De G. Mac. & G. 721; Taylor v. Portington, 7 De G. Mac. & G. 328. Where the defendant denies the agreement alleged by the plaintiff, but admits another, if the acts of part performance were equally consistent with both agreements, it has been held that parol evidence of the agreement alleged by the bill was not admissible. See Lindsay v. Lynch, 2 S. & L. 1. There the plaintiff alleged an agreement for a lease for three lives, the answer admitted an agreement for one life only, and the acts of part performance, viz., the building of a wall under a former covenant and the payment of rent not being inconsistent with the agreement set up by the defendant, evidence in support of the agreement set up by the bill was recused. Sed vide Sutherland v. Briggs, 1 Hare, 26; Tomkinson v. Staight, 17 C. B. 697. * 902 ] It seems that if in that case the * plaintiff had amended [

&

his bill abandoning the agreement alleged in his bill, he might have had a decree for the agreement admitted by the defendant (Anon., 2 S. & L. 9, cited), but as he had amended his bill, continuing to insist on the agreement alleged in the bill, and praying in the alternative, to have specific performance of the agreement ad344

LESTER
niitted

V.

FOXCROFT.

* 903

by tho defendant, the bill was dismissed with costs without prejudice to his filing a new bill: Lindsay v. Lynch, 2 S. & L. 1. The principle that a statute shall not be made an instrument for covering a fraud has been illustrated by cases in which Courts of equity have not allowed parties to profit where they have fraudu lently induced another party either not to make or to refrain from altering wills, the mode of executing which was formerly regulated by the 5th & 19th sections of the Statute of Frauds (29 Car. 2, c. 3), and is now by the Wills Act (1 Vict. c. 20). Hence, though a testator, after devising an estate to another, should leave a declaration of trust not executed in the mode required by the statute, the devisee will take beneficially, and may plead the statute by way of answer to the declaration (Adlington v. Cann, 3 Atk. 151; In re Boyes, Boyes v. Carritt, 20 Ch. D. 531): nevertheless, where a person, knowing that a testator in making a disposition in his favour intends it to be applied for purposes other than for his own benefit, either expressly promises or by silence implies, that he will carry the testator's intentions into effect, and the property is left to him upon the faith of that promise or undertaking, it is in effect a trust, and in such case the Court will not allow the devisee to set up the Statute of Frauds (29 Car. 2, c. 3), or, rather, the Statute of Wills (1 Vict. c. 20), by which tho Statute of Frauds is now in this respect superseded: Jones v. Badley, 3 L. R. Ch. App. 3G4, per Lord Cairns, L. C. and see Wallgrave v. Tebbs,
:

2 K.

&

J. 313.

Thus, if a father devises an estate to his youngest son, who promises that if the estate be devised to him he will pay 10,000^. to the eldest son, the Court, upon proceedings being taken by the latter, would compel the former to discover whether that passed in parol; and if he acknowledged it, even praying the benefit of the Statute, he would be a trustee to the amount of 10,000Z. per Lord Eldon in Stickland v. Aldridge, 9 Ves. 519. Upon the same principle, if the owner of an estate suffered it to descend, being informed by the heir that if it were permitted to descend, he would make a provision for his mother, wife, or other person, there is no doubt the Court would compel the heir to discover whether he did make * such promise, and would [* 903 J hold him to be a trustee to the extent of the provisions See that he agreed to make: Stickland v. Aldridge, 9 Ves. 519. also Harris v. Horwell, Grilb. Eq. Rep. 1 1 Seilack \, Harris, 5 Vin. Ab. 521, pi. 31; M'Cormick v. Grogan, 4L. R. Ho. Lo. 88. It may, indeed, be laid down as a general rule that where a testator devises or bequeaths real or personal property Kingsman v. Kingsman, 2 Vern. 559; Oldam v. Licit ford, 2 Vern. 500: Thynn v. Thynn, 1 Vein. 290), to one who appears upon the face of the \\)\\ to take beneficially, but who has agreed with the testator that he will hold a part (Stickland v. Aldridge, 9 Ves. 519), or even the whole (Thynn v. Thynn, 1 Vern. 290), of the property so devised or be;
; (

345

* 904

LESTER

V.

FOXCROFT.

queathed to him upon a lawful trust in favour of some other person or persons, he will, to the extent of his engagement, be held a trustee for such person or persons: Reecli v. Kennigate, Amb. 07; S. C. 1 Ves 123; Devenish v. Baines, Prec. Ch. 3; Chamberlaine v. Clmmherlaine, 2 Eq. Ca. Ab. 43; Nab v. Nab, 10 Mod. 404; Strode v. Winchester, 1 Dick. 397; Marriot v. Marriot, 1 Stra. 672; Barrow v. Greenough, 3 Ves. 152; Podmore v. Gunning, 7 Sim. 644; Gray v. Gray, 11 Ir. Ch. Hep. 218; Attorney -General v. Dillon, 13 Ir. Ch. Rep. 127; Irvine v. Sullivan, 8 L. R. Eq. 673; Norris v. Frazer, 15 L. R. Eq. 318; McCormick v. Grogan, 4 L. R. H. L. 82; Riordan v. #cuiou, 10 1 R. Eq. 469; In re Fleetwood, 15 Ch. D. 594. In thus acting the Court does not violate the spirit of the statutes; but for the same end, namely the prevention of fraud, it engrafts the trusts on the devise by admitting evidence which the statutes would in terms exclude, in order to prevent a devisee from applying property to a purpose foreign to that for which he undertook to hold it: Jones v. Badley, 3 L. R. Ch. App. 364. In these cases it will be observed that persons making a promise to do something in itself not illegal, for a third party, are compelled to make good their promise by means of the Court holding them to be trustees to the extent of the promise. AVhere, however, persons to whom property is devised upon a secret trust or understanding to compass what is illegal, as, for instance, to hold realty or property savouring of realty for the purposes of a charity in evasion of what is commonly called the Mortmain Act (9 Geo. 2, c. 36), there will be a resulting trust (according to the nature of the property), for the heir at law, or next of kin, who may, notwithstanding the plea of the Statute of Frauds (29 Car. 2, c. 3), compel the devisee to disclose any promise he may have made to hold the realty or any part of it for the See Stickland v. Aldridge, 9 Ves. [ * 904 ] * benefit of a charity. 516; Muckleston v. Brown, 6 Ves. 52: Burneyv. Macdonald, 15 Sim. 6; Russell v. Jackson, 10 Hare. 204; Lomaxv. Ripley, 3 Sm. & G. 48; Carter v. Green, 3 K. & J, 561; Moss v. Cooper, 1 J. & H. 352; McCormick v. Grogan, 4 L. R. Ho. Lo. 82; Springett v. Jenings, 10 L. R. Eq. 488, 6 L. R. Ch. App. 333. In such cases, although the Statute of Mortmain (9 Geo. 2, c. 36), declares a devise "in trust or for the benefit of" a charity to be absolutely void,
it

has, after

some

conflict of judicial opinion (Adling-

ton

Cann, 3 Atk. 156; Edivards v. Pike, 1 Eden, 267; Boxon v. Statham, It). 508; Bishop v. Talbot, 5 Ves. 60, cited), been ultimately decided that the devise of the legal estate is valid, but that the Court
v.

of equity will, for the reasons before mentioned, fasten a trust thereon in favour of the heir: Siveeting v. Sweeting, 10 Jur. N. S. 31. If there has been a devise to several persons as joint tenants, and one of them has either expressly promised to dispose of the property
for a charitable purpose, or has by his silence or acquiescence given the testator to understand that he would do so, they will hold the

346

LESTER

V.

FOXCROFT.

905

property as trustees for the hoir at law: Russell v. Jackson, 10 Hare, 204. See also Carter v. Green, 3 K. & J. (503; Jones v. Badlcy, 3 L. But a mere Mate R. Ch. App. 362, reversing S. C. 3 L. R. Eq. 035. merit in a will of ono of the joiiit tenants, that the property was held in trust, will not affect the beneficial interest of the survivors, when nothing had taken place on the part of any of the joint tenants during the life of the testator which would be sufficient to fasten upon them a trust: Turner v. The Attorney- General, 10 Ir. R. Eq. 386. Where, however, a devise was made to several persons, as tenants in common, and a subsequent communication of the testator's intentions in favour of a charity, was made to one of them only, the other devisees were held not to be affected by a trust. Tee v. Ferris, 2 K. & J. 357; and see Burney v. Macdonald, 15 Sim. G; Moss v. Cooper, 1 J. & H. 352; Rowhotham v. Dunnett, 8 Ch. D. 430. Where property is devised to persons with power to dispose to such charities as they may think proper, the heir, according to Lord Eldon, may have a right to call upon them to say whether they have done so, or mean to do so, and how much they mean to dispose of: Muckleston v. Brown, Ves. 66. The onus, however, lies upon the plaintiffs of showing that a trust for a charity w as communicated to, and expressly or tacitly accepted by the devisees; but if * this is not ad- [ * 905 ] mitted by the defendants, he may prove it by evidence
r

aliunde:

Edwards v. Pike, 1 Eden, 267. Although a charitable desire or object may have existed in the

mind

of the testator making a devise, if the plaintiffs fail to show that any secret trust for charity was communicated to or accepted, or acquiescec. in by the defendants, the devise will be valid, although the devisees intend to carry out the charitable intentions of the testator: Wallgrave v. Tebbs, 2 K. & J. 313; Lomax v. Ripley, 3 Sm. & G. 48; Jones v. Badley, 3 L. R. Ch. App. 362, reversing *S. C. 3 L. 11. Eq. 635; Turner v. The Attorney -General, 10 Ir. R. Eq. 386; Roirbotham v. Dunnett, 8 Ch. D. 430. Even where a devisor, after devising lands, declares a trust in favour of a charity by any unattested paper or by parol, if the plaintiff cannot prove that the devisee has either expressly or impliedly engaged to carry out the same, he will be able to claim the land unaffected by the trust. See Adlington v. Cann, 3 Atk. 141, where Lord Hardicicke was clearly of opinion, that there being nothing in the will, attaching a trust, if the testator afterwards, by an unattested paper, expressing his ovvn intention, not communicated, said, the purpose was to devote the estate to a charitable purpose, the devisee might object, that he had taken under a will well executed; and that the subsequent paper was not well executed U'alhjrave v. Tebbs, 2 K. & J. 313; Lomax v. Ripley, 3 Sm. & G. 18. The result, however, would bo otherwise, if the devisee induced the devisor to make the will, or to refrain from altering it when it was made, in his favour, upon the understanding that he would
:

347

* 906

LESTER

V.

FOXCROFT.

carry out the trusts contained in the unattested paper: Russell v. A will may, no doubt, so refer to a sepaJackson, 10 Hare, 204. rate document as to incorporate it, but it is essential that the document must first be clearly indentilied by the description of it given in the will, and secondly, that it must be shown to have been in existence at the time when the will was made: Singleton v. Tomlinson, 3 P. & D. 382. App. Ca. 404, 414; In the Goods of Pearse, 1 L. If a testator makes a devise, meaning at the time thereafter duly to declare the trusts, and it happened that he did not declare any, the case would lie, it seems, within the equity of the Court, and if the devisees admitted his will was made upon such an undertaking, that they would execute the trusts, the heir might have a right to say no trust was duly declared, that the purpose therefore failed, and the trust resulted to him, not upon the intention, but * no intention, and that * 90G [ ] upon the ground that there was he was entitled to avail himself of that: Muckleston v. Brown, 6 Ves. 52, 64. See also Russell v. Jackson, 10 Hare, 204 , and the legatee to whom personal estate was bequeathed under such circumstances would hold it as trustee for the next of kin. In re Boyes, Boyes v. Carritt, 20 Ch. D. 531, 537. It may be here mentioned that a defence founded on the Statute Catling v. King, 5 of Frauds cannot now be raised by demurrer. Ch. D. 660.-

In equity, under the [Doctrine of Part Performance Restated. jurisdiction to suppress fraud, relief may be granted in some of the cases to which the forms at law are imperfectly or not at all adapted. Though the Statute of Frauds binds the equity (Skipwith v. Dodd, 24 Miss. 487; Watson v. Erb, 33 Ohio, 35; Abell v. Calderwood, 4 Cal. 90), the same as the law tribunals, it does not abrogate the And it is palpable fraud for prior equity jurisdiction over fraud. one man to entice another with promises, to change his course of

and to his injury part with his effects or his services, then back on the statute to avoid doing what he has led the other to expect; hence the necessity of the doctrine of part performance, which is based upon the principle that where a contract is so far performed that the parties could not be restored to their original position if the contract was rescinded, and it would be unjust to allow any technicality to prevent the fulfilment of the contract. Therefore, if a verbal contract has been made for the sale of real estate, and is acted upon to the extent above indicated neither of the parties can refuse to perform their part of the contract on the ground that The equity of the Statute of Frauds has not been complied with. part performance to take a case out of the 4th sec. of the Statute of Frauds does not extend to contracts concerning any other subjectmatter than land, and the acts of part performance must be unequivocally referable to the agreement, and must be such as to
action,
fall

348

LESTER

V.

FOXCROFT.

* 900

change tho relative position of the parties with regard to the sub
ject- matter of the

agreement.

of part performance has been limited to the following principles: (1) The act of part performance must be unequivocal. It must have relation to the one agreement relied upon and to no other. (2) There must be some evidentia rei to connect the alleged

The equity

part performance with the alleged agreement. (3) It is not enough that an act done should be a condition of, or a good consideration for a contract, unless it is as between the parties, such a part execution as to change their relative positions as to the subject matter The acts must be such as to render non-performof the contract. ance a fraud: Wilmer v. Farris, 40 Iowa, 310; Christy v. Barnhard, 2 Harris (Pa.), 260. The mero fact that the purchase money has been paid is not sufficient to take the case oat of the statute: Evarts v. Agnes, 4 Wis. 343; Malins v. Brown, 4 Comstock, 403. The doctrine applies to companies and corporations, as well as to
individuals.

the one party to the oral agreement, has paid the considany portion of it, and the other party relying on the statute refuses the promised performance, the former may recover back in a suit at law, the money or other value which he has paid. Hawley v. Moody, 24 Vt. 603; Montague v. Garnett, 3 B. Bush. 297. But he cannot recover it if the other party waives the statute and stands ready to perform Swanzey v. Moore, 22 111. 63 Coughlin v. Knowles, 7 Met. 57; Plummer v. Buckham, 55 Me. 105. It is well settled that the remedy is mutual, and that the vendor may bring his action in all cases where the purchaser could sue for specific performance of the contract, and this independently of any question on the Statute of Frauds.]
eration, or
:

Where

849

908

CUDDEE

V.

RUTTER.

[*907]

CUDDEE
Trin.

v.

RUTTER.
1.

Term, 6 Geo.
vin.
ab.

[reported 5

538, PL. 21.]

Specific Performance of Agreements relating to Personal Property.]

bill

in equity will not

lie

for specific performance of

an agreement

to

transfer South sea Stock.

Bill for a specific

stock
(c).

performance of an agreement

to

transfer

The case was, the defendant agreed with the plaintiff to transfer to him 1000Z. South-sea Stock, upon the 20th of November then next following, at the rate of 104Z. per cent., and gave him a promissory note under his hand for so doing, and received two
guineas of the plaintiff in part of the consideration-money; but the
defendant, in drawing the note, had put in the usual words "or pay
the difference," which the plaintiff struck out, and would not agree
to,

and then the defendant signed the

note.

After the bargain was made, and before the time of delivering
the stock, the South-sea Stock rose considerably in value, and the

defendant did not deliver the stock at the day, but a few days

after-

wards offered to pay the difference, and submits so to do by his answer; but the plaintiff insists to have the stock actually transferred to him,

and refuses

to take the difference, &c.

Vernon, for the defendant insisted, manner, to be delivered at a future that buying of stock in this of a wager upon the rise nature time, at a certain price, was in the
Sir Robert

Raymond and Mr.

and therefore paying the difference is a sufficient performance of the contract; that a contract for the sale * 908 ] of stock differs from * other contracts for sale of a house, [ lands, &c, for in such things there may be a particular conveniency or benefit to the buyer in this individual house, &c.
and
fall

of stock,

(c) S. C. nom. Cud v. Rutter, 1 P. Wms. 570; 2 Eq. Ca. Ab. 18, pi. 8; Prec^ Ch. 534, cited, nom. Scould v. Butter; Reg. Lib. A. 1719, fol. 35; Reg. Lib. B. 171U, fol. 411.

350

CUDDEE
but
it is

V.

RUTTER.
is

* 909

good as another J.000Z. stock, and is to be purchased daily in Exchange Alley: that the plaintiff has his remedy at law for the damages; viz., the differ ence, and that is the justico of the case between the parties; that it is discretionary in the Court to decree a specific performance of
not so in stock, for one 1000Z.
as

an agreement, and that in many cases the Court will leave the party to his remedy at law for breach of a contract, &c.
Sir Joseph Jekyll, M. R., said, that this
is

a fair

and reasonable

agreement, and he saw no reason

especially since

why

the Court should not in this

case, as well as others, decree a specific

it

performance of the contract, was insisted upon by the plaintiff, at the making

the agreement, that he should not be obliged to take the difference,

but would have the stock actually delivered to him; and it is more for the advantage of the buyer to have the stock than the difference,

and saves him the trouble of buying it of another, and paying brokerage: and decreed that the defendant do transfer the stock, and pay the dividends since the 20th of November, plaintiff to pay interest of the money to that time, and ordered costs to the plaintiff.
1

Lord Chancellor Parker (d), on an appeal from this decree, upon opening the cause, asked if the plaintiff was at the South-sea House upou the day appointed for transferring the stock, to demand it, and tender the money, and seemed strongly against the plaintiff, and urged the law in case of a bargain for corn to be delivered upon a day certain at such a market, at such a price, and the
corn
is

not delivered according to the contract; the buyer shall not equity compel the seller to a specific performance of

by a

bill in

this agreement, but the

buyer is

left to his

remedy

at law, for

breach

agreement to recover damages, id est, the difference between the price agreed on by the parties, and the price of corn upon the
of the

market-day. * Argument for the plaintiff.

It

was

said, it

was the [*909]

common
specific

justice of this Court to compel the party to a

performance of his agreement,

if

the same was just and

reasonable,

and

fairly obtained:
in
all

that this

was

a just, reasonable,
it

and

was the current and no imposition upon the defendant: that the subsequent rise could not alter the case, for it was an equal hazard that it might fall, and the parties in such contracts
fair

agreement

the circumstances:

price of the stock at that time,

(d)

Afterwards Earl of Macclesfield.

351

910

CUDDEE

V.

RUTTER.

executory must take their chance.

a contract for so

They compared
if

it

to the case of

many

bales of silk, or any other merchandise, to bo

delivered at a future day, at a certain price:

silk,

the value of the

is

or other goods, doth rise before the day, that

no excuse

for

non-performance of the contract.

lands,
if

So, in the case of a contract for

agreement.

lands rise in value, yet the party ought to execute his They said, that, from the time of the contract to the

cent.

time appointed for the delivery, the stock did not rise above 12Z. per that it was not more at the time of filing the bill, which was io January, 1718; nay, it was not more at the time of the decree
;

pronounced by the Master of the Kolls in Michaelmas Term last: and though the stock has risen since to a vast price, between 900Z. and 1000Z. per cent., if the defendent suffers by that it is his own fault in not performing his contract sooner, when he was demanded so to do, and in not obeying the decree, as he ought to have done:
that whatever has

contract was reasonable at the time

happened since cannot alter the case: that the it was made, and so it was when

the

bill

was

filed

Argument, for the defendant.

the rule laid

and the decree pronounced. It was said

for the defendant, that

down was

too general for compelling the execution of

agreements between the parties: that this Court would not compel the party to perform a hard agreement, though it was fair at the
time
that

was made, but leave the other party to his remedy at law: was very unreasonable now to compel the defendant to transfer 1000Z. South -sea Stock to the plaintiff, at 104Z. 10s. per cent., when it was worth 1000Z. per cent.; that paying the [*910] difference * at the day was a good performance of this contract: that the plaintiff knew that the defendant had
it it

no stock when he made the bargain with him, and therefore could not expect to have the stock delivered to him, but to have the difference if the stock should happen to rise before the time; and he
liver

had no more intention to take the stock than the other had to deSouth-sea it, and this appears by his non-attendance at the House upon the day to accept and pay for the stock. They cited the case of The Marquis of Normandy v. Lord Berkly, temp. Lord Somers, C, who said, in that case, that the Court would not carry agreements into execution unless the contract was reasonable and fair in every particular, because they cannot mitigate damages upon the circumstances of the case, as a jury may do, but must
decree the whole contract to be performed.

352

CUDDEE

V.

RUTTEB.

911

Reply for the plaintiff. It was replied that the plaintiff, some days before the stock was to be delivered, told the defendant that he expected to have the stock delivered to hiin; but the defendant said that he had not the stock, and therefore could not deliver it;

and afterwards (ho defendant kept out of the way for some days, and the plaintiff could not find him, and that was tho reason ho did not attend at the South sea House to accept the stock; that this being occasioned by the defendant's own unfair dealing, the plaintiff ought not to suffer by it; and upon that account the plaintiff ought to be relieved in equity, because he is remediless at law for want of a legal demand and tender upon tho day.
is no reason to bring this bill performance of this agreement, because there is no difference between this 1000Z. South-sea Stock and another 1000Z.

Lord Chancellor Parker. There

for a specific

the very day; and the plaintiff does not suffer at

the difference.

might have bought of any other person upon all by the non-performance of the agreement specifically, if the defendant pays him
stock,
plaintiff

which the

These
*
ference,

sorts of contracts are

commonly understood
pay the

to

[ * 911 ] answers the intention of the parties; and the party has thereby the entire benefit of his contract as fully as if tho stock were actually delivered, for he may buy of anv other person, and be no more money out of pocket than if tho stock >vero delivered to him according to the agreement. This differs very

mean no more than

and

to transfer the stock or

dif-

this fully

much from

the case of a contract for lands, some lands being more

valuable than others

at
is

least,

more convenient than others

the purchase; but there

is

no difference in stock of equal benefit and conveniency as another's.

Secondly,
it

one

to

man's stock

appears that tho defendant had not tho stock when

the contract was made, and this Court will not decree a specific

liver.

performance of a contract when tho party has not tho thing to deSuppose a contract for tho sale of land, and tho party has not the land at the time ho contracted for the sale of it, this Court would not decree a specific performance of the agreement. If there
be a contract for tho sale of malt, or any other commodity,
seller
a'-nd

the

has not tho malt or other things agreed to be delivex*ed, this Court would not compel the party to perform his agreement, but leave
* 23

WHITE

ON'

EQUITY.

353

* 912

CUDDEE

V.

RUTTER.

the buyer to recover his

damages

at law for

non-performance of the

agreement.
Thirdly, in contracts for stock, being subject to sudden rise and
fall,

the day

is

the most material part of the contract, and therefore

not proper for a court of equity to carry into execution.

cree

The

de-

might be

beneficial to the plaintiff

one day, and to his prejudice

the next.

I shall always discourage bills of this kind; but since

the defendant did shuffle with the plaintiff, and not offer to pay him
the difference
bill, but.
till

two months
it

after the day, I will not dismiss the

let

the Master inquire what the difference was at the day,

to the plaintiff, with interest, but

and the defendant pay

no

costs.

is proposed in this note to consider the question discussed in the principal case, viz., of what contracts, especially in relation to their subject-matter, the Court will This may be considered most condecree the specific performance. 1st. When the contract reveniently under four general heads: lates to property, whether real or personal; 2nd. When the contract relates to personal acts; 3rd. Specific performance when compelled by injunction; and 4th. The extension of the jurisdiction of equity in matters of specific performance by the legislature conferring powers to award damages in certain cases. It must, however, be first observed, that a court of equity will not decree specific performance of a contract unless it be founded upon See 2 valuable consideration: Cochrane v. Willis, 34 Beav. 359. Seton on Decrees, 1284; 4th Ed. ,1284; and see note to Ellison v. [See Keffer v. Grayson, 76 Va. 517; Downs Ellison, ante, p. 326. On an appeal to the discretion of the v. Porter, 54 Texas, 59. Court in a bill for specific performance, this relief will be withheld been a valuable consideration: See Conrad v. if there has not Schwamb, 53 Wis. 372; Harrison v. Town, 17 Mo. 237; Cole v. Cole, 106 111. 482.] 1st. As to contracts relating to real and personal property.] Where a contract in writing respecting real property, in conformity with the Statute of Frauds, 29 Car. 2, c. 3, is entered into between competent parties, and is, moreover, in its nature and circumstances, unobjectionable, it is as much of course for a court of equity to decree a specific performance, as it is for a court of common law to give damages for the breach of such a contract: Hall v. Warren, 9 [A chancellor will compel a party who seeks specific Ves. 608.
[

* 912]

* It

much

performance to elect between his remedy at law and his bill in equity: 2 Daniels Chan. Prac, sec. 4; Findlav v. Keim, 12 P. F.
Smith, 117.] And a court of equity will not only entertain suits for specific

354

CUDDKK

V.

RUTTER.

* 013

performances of contracts by vendors or purchasers of land in ordinary cases where the price is named, hut also in cases of quasi contracts, after notice to treat has been given by railway or other companies iu the exercise of their compulsory powers under the Lands Clauses Consolidation Act, 1845, if the price of the land has been fixed, whether it be by correspondence (Inge v. Birmingham, Wolverhampton & Stour Valley Railway Co., 1 Sm. &Giff. 347; S. C, 3 De G. M. & G. 658; see, too, Bee v. Stafford & Uttoxeter Railivay Co., 23 W. R. 808), by the landowner and the company (Ex parte Hawkins, 13 Sim. 5(59; see also Haynes v. Haynes, 1 Dr. & Sm. 457; Wells v. Chelmsford Local Board of Health, 15 Ch. D. 108), by arbitrators under the Lands Clauses Consolidation Act (Mason v. Stokes Bay Pier& Railway Co., 11 W. R. 80; 32 L. J. Ch: 110; Harding v. Metropolitan Railway Co., 7 L. R. Ch. App. 154, or appointed by written agreement (Regent's Canal Co. v. Ware, 23 Beav. 575) by tsurveyors named by parol (Watts v. Watts, 17 L. R. Eq. 217), or by the verdict of a jury (Nash v. The Worcester Improvement Commissioners, 1 Jur. N. S. 973; Doherty v. at erfor cl& Limerick Railway Co., 13 Ir. Eq. Rep.* 538), [ * 913 ] a railway company is in the same position with regard to the landowner as any ordinary purchaser, and will be compelled by See also Harvey v. a court of equity to complete the purchase. Metropolitan Railway Company, 7 L. R. Ch. App. 154; Watts v. That on a sale by an agreement to a Watts, 17 L. R. Eq. 217. company by an owner under disability the requirements of the Lands Clauses Consolidated Act, 1845, s. 9, must be strictly complied with: Bridgend Gas and Water Company v. Dunraven, 31 Ch.

D. 219.

Where a railway company, after having given notice to treat, has paid the purchase-money for leaseholds, and has, with the consent of the lessee, been admitted into possession, it will, at the suit of the lessee within a reasonable time, be compelled to accept an assignment containing the usual covenants: lb. See also Harding v. The Metropolitan Railway Company, 7 L. R. Ch. App. 154. Interest at 4 per cent, is payable by a railway company upon the purchaso or compensation money from the time of their taking possession of the land under their statutory powers, and not merely from tho subsequent period of ascertaining the price by the verdict The reason for this rule is, that from the time when the of a jury. railway company exercised their statutory rights and took possession of the land which belonged to the plaintiffs, they became the owners of the land, and from that day tho plaintiffs became the owners of tho price payable for the land: Rhys v. Dare Valley Railway Company, 19 L. R, Eq. 93, 95; Firth v. Midland Railway Compyany, 20 L. R. Eq. 100. When a railway company has given notice to a landowner to treat for a portion of a piece of land, and tho latter has given notice to the company to take the whole, if on a bill filed by the landowner
355

-*-

014:

CUDDEE

V.

RUTTER.

for a declaration

tion

in accordance with his notice, such declarafurther consideration, and upon enquiry the title is found to be good, the Court has made an order compelling the company to take the necessary steps for ascertaining the value of the whole of the land, for payment of the value so ascertained, and for the execution of a conveyance to the company: Marson v. The London, Chatham, and Dover Railway Company, 7 L. R, Eq. 546, G L. R. Eq. 101; and see the remarks thereon in Grierson v.
is

made made reserving

Cheshire Lines Committee, 1 9 L. R. Eq. 89. Bat if tbo railway company, after a bill has been filed by the landowner for a declaration that they should not take a part without taking the whole of his land, give notice of their intention to withdraw from the notice to treat, even although they may, previous to the filing of the bill, have given notice of their intention to apply for the appointment of a surveyor to ascertain the value of the whole of the land, the Court will not decree specific performance, inasmuch as a mere notice of intention to apply for the appointment of a surveyor did not amount to a binding contract by them 914 ] to take * "the property, and that they were therefore at [ Grierson v. liberty to withdraw their notice to treat:
'

Cheshire Lines Committee, 19 L. R. Eq. 83. It seems, however, that ordinarily if, after a notice to treat, the company refuse to proceed, tho landowner has no remedy against them in equity, but may apply for a mandamus to compel the company to ascertain what compensation is payable to the landowner: Adams v. London & Blackivall Railway Co., 2 Mac. & G. 118; Lind Canal v. Isle of Wight Ferry Co., 7 L. T. (N. S.) 416; Leominster Co. v Shrewsbury & Hereford Railway Co., 3 K. & J. 654; Baker v. Metropolitan Railway Co., 31 Beav. 504, 511. A court of equity, moreover, by virtue of its jurisdiction in personam, has always been ablo to enforce specific performance of conSee tracts relating to realty out of the jurisdiction of the court. Penn v. Lord Baltimore, vol. ii., p>ost. [It is no objection to a bill for specific performance that the property lies out the jurisdiction of the Court, because the parties are within its jurisdiction and relief can be obtained, because equity acts in personam: Davis v. Headley, 7 C. E. Green, 115; Fry on Specific Performance, sec. 60; Desmond, 100 Mass. 267; Burrell v. Root, 40 N. Y. 496; Brown Massie v. Watts, 6 Cranch, 148; Stephenson v. Davis, 56 Me. 73.] Tho original and sole foundation of tho jurisdiction to decree tho that an award of specific performance of contracts is simply this damages at law will not give a party tho compensation to which he is entitled; that is, will not put him in a situation as beneficial to

him

as if the agreement were specifically performed: Harnett v. Yielding, 2 S. & L. 553. The decision in the principal case shows that specific performance of agreements relating* to personalty will not, as in the case of agreements relating to realty, be invariably decreed: it will, how-

356

CUDDEE
ever,

V.

RUTTER.

* 915

bo seen, upon examining the authorities, that whenever courts have refused to interfere with agreements relating to personalty, they have done so, not because of any difference between real and personal property, but because damages at law will be an adequate compensation; and there is, therefore, no reason why the jurisdiction of equity should be called into action. Upon this ground chiefly the Lord Chancellor, in the principal case, refused to decree the specific performance of the agreement, observing, that it differed much from "a contract for lands, some lands being more valuable than others at least, more convenient than others to the purchaser; but there is no difference in stock one man's stock is of equal benefit and conveniency as another's." So, likewise, in Adderley v. Dixon, 1 S. & S. 010, Sir John Leach, "Courts of equity decree the specific performance V.-C.j observes of contracts, not upon any distinction between realty and personalty, but because damages at law may not, in the particular case, afford [If a complainant has an effectual remedy in a complete remedy. The Court his own hands, a Court of Chancery will not interfere. will not enforce the performance of a condition, the non-performance of which would work a forfeiture, for the grantee has fixed his remedy: Marble Co. v. Riply, 10 Wallace, 359; Woodruff v. Water Power Co 10 N. J. Eq. 489.] Thus, a court of equity decrees performance of a contract for land, not because of the real nature of the land, but because damages at law, which must be * calculated upon the general money value of land, may [ * 915 ] not be a complete remedy to the purchaser, to whom the hind may have a peculiar and special value. So, a court of equity will not, generally, decree performance of a contract for the sale of stock or goods, not because of their personal nature, but because
of equity

damages at law, calculated upon the market price of the stock or goods, are as complete a remedy to the purchaser as the delivery of the stock or goods contracted for; inasmuch as with the damages he may purchase the same quantity of the like stock or goods." Lord Hardicicke, C, lays down the same distinction between contracts relating to chattels and contracts relating to lands but he " In general," does not give the same reasons for the distinction. he says, '"this Court will not entertain a bill for a specific performance of contracts of stock, corn, hops, &c. for, as those are contracts which relate to merchandise, that vary according to the different times and circumstances, if a court of equity should admit such bills, it might drive on parties to the execution of a contract, to the ruin of ono side, when upon an action that party might not have paid, perhaps, above a shilling damage. ... As to the cases of contracts for the purchase of lands or things that relate to realties, and, if a person agrees to purthose are of a permanent nature chase them, it is on a particular liking to the land, and is quite a different thing from matters in the way of trade " Buxton v. Lester, 3 Atk. 384.
;
; ;
:

357

916

CUDDEE

V.

RUTTER.

The reasons, however, given by Lord Hardvcicke for a court of equity not entertaining jurisdiction in cases of chattels, as is well observed by Chief Baron Richards, would equally apply to contracts for the purchase of land, which falls and rises in value in an exThe reasons traordinary manner. See Wright v. Bell, 5 Price, 329. given by Sir John Leach are better. The question, therefore in all cases where the specific performance of an agreement relative to personalty was sought, was this would damages at law afford an adequate compensation for breach [Pbyfe v. Wardell, 2 Edw. Ch. 47; Richmond of the agreement? v. Rd. Co., 33 Iowa, 439; Penna. Co. v. Delaware etc. Co., 31 N. Y. If it would, there was no occasion for the interference of 91.] if it would not, specific equity the remedy at law was complete performance of the agreement, as in the case of an agreement relating to realty, would be enforced. Upon the ground that damages, would be an adequate compensation, it has been decided in a recent case that specific performance of a contract to deliver goods in the shape of coals would not be decreed. See Fothergill v. Rowland, 17 L. R. Eq. 132. There the lessee of a colliery contracted to raise and deliver to * fixed price for five [ *916] the plaintiffs all the get of coals at a years, and subsequently contracted to sell the colliery to other parties, it was held by Sir G. Jessel, M.R., that inasmuch as the Court could not compel specific performance of the contract, it " I think," could not by injunction restrain the breach thereof. said his Honor, " it must be assumed to be a simple contract for the sale of a chattel of a very ordinary description not alleged to be a peculiar coal, or coal that cannot be got elsewhere. On the contrary, as I read the bill, there is coal that can be got elsewhere of The result is that the the same description, only at a higher price. plaintiffs will incur an amount of damage to be measured by the market price which they may have to pay for the coal of the same description as the coal agreed to be supplied by the defendant RowThen it is said, assuming this contract to be one which land. the Court cannot specifically perform, it is yet a case in which the Court will restrain the defendants from breaking the contract. I am not entirely without assistance from authority, because it appears to me that this very case has been put, though only by way of illustration, by a very great Judge, Lord Cottenham, in Heathcote v. North Staffordshire Railway Company (2 Mac. & G. 112), where he says 'If A. contract with B. to deliver goods at a certain time and place, will equity interfere to prevent A. from doing anything which may or can prevent him from so delivering the goods?' That is the exact case I have to deal with, because I have decided that Finding the the contract is a contract for the delivery of goods. dictum of Lord Cottenham express on the subject, and the plaintiff's counsel not having been able to produce to me any authority in which there has been such an injunction granted on the sale of
;
:

358

CUDDEE

V.

RUTTER.

917

goods, or any chattel, in a case in which specific performance could not be granted, I think I shall do right in following that authority; and I say, although I say it with much regret, that it is a case in which equity can afford no relief." But see Donnell v. Burnett, 22 Ch. D. 835, and the cases there cited. In the following cases, however, it has been held, that, as dam ages at law could not be correctly estimated, or would not furnish a complete and adequate remedy for the non-performance of a contract relative to personal property, equity ought to decree specific performance. In Taylor v. Neville, 3 Atk. 384, cited, specitic performance was decreed of a contract for sale of 800 tons of iron, to be delivered and paid for in a certain number of years, and by instalments and the reason given by Lord Hardwicke is, " that such sort of contracts differ from those that are immediately to be executed " and they do differ in this * respect, that [ * fJl7 the profit upon the contract, being to depend upon future events, cannot be correctly estimated in damages, where the calculation must proceed on conjecture. In such a case, to compel a party to accept damages for the non-performance of his contract, is to compel him to sell the actual profit which may arise from it at See also Nives v. Nives, 15 Ch. D. G49. a conjectural price. In Ball\. Coggs, 1 Bro. P. C. 140, Toml. ed., specific performance was decreed, in the House of Lords, of a contract to pay the plaintiff a certain annual sum for his life, and also a certain other sum for every hundredweight of brass wire manufactured by him during his life as manager of certain mills belonging to the defendants; for damages might be no complete remedy, being to be calculated merely by conjecture: and to compel the plaintiff, in such a case, to take damages, would be to compel him to sell the annual provision during his life, for which he had contracted, at a conjectural price. Moreover in Buxton v. Lister, 3 Atk. 385, Lord Harchcicke puts the case of a ship-carpenter purchasing timber which was peculiarly convenient to him by reason of its vicinity, and also the case of an owner of land covered with timber contracting to sell his timber in order to clear his land; and assumes that, as in both those cases damages would not, by reason of the special circumstances, be a complete remedy, equity would decree specific performance: per Sir J. Leach, V.-C., 1 S. & S. 610. Again in the case of Thorny. The Commissioners of Public Works, 32 Beav. 490; Lord Romilly, M. R., decreed specific performance of a contract to purchase tho arch stone, spandrill stone, and the Brainley Fall stone contained in the old Westminster Bridge. See also Pollardx. Clayton, 1 K. & J. 402; and the comments therein of Sir
;

W. Page Wood, V.-C, on Taylor

p.

v.

Neville,

and Buxton

v.

Lister, lb.

474.

It is clear that a contract for the purchase of articles of unusual beauty, rarity, and distinction, such as objects of virtu, will be enforced, as damages would not be an adequate compensation for non-

350

* 918

CUDDEE

V.

RUTTER.

performance: per Kirtdersley, V.-C, in Falckev. Gray, 4 Drew. G58. See also Pusey v. Pusey, jjost, 961; and Duke ofi Somerset v. Cookson, x>ost, 962, and note. The jurisdiction of the

Court with regard to the specific performance of contracts relating to chattels does not appear from the
decisions to rest

upon a very

satisfactory foundation.

The question

ought not to be whether a chattel contracted to be sold is of an ordinary or extraordinary character, but solely whether a specific chattel has been pointed out as the subject matter of the * 918 ] contract: if it be, the option, it is * submitted, ought to lie with the purchaser whether ho will have the chattel This is well put by contracted for, or damages in lieu thereof. Lord Westbary. "A contract for the sale of goods," said his Lordship, "as for example, of 500 chests of tea, is not a contract which would be specifically performed, because it does not relate to any chests of tea in particular: but a contract to sell 500 chests of tea which is now in my warehouse in Gloucester is a contract relating to specific property, and which would be specifically performed. The buyer may maintain a suit in equity for the delivery of a specific chattel when it is the subject of a contract, and for an injunction (if necessary) to restrain the seller from delivering it to any other person:" Holroyd v. Marshall, 10 Ho. Lo. Ca. 209, 219. See however, and consider Hoarev. Dresser, 7 Ho. Lo. Ca. 317, 3 18 Heaihcote v. North Staffordshire Railway Co., 2 Mac. & G. 100, 112 Fothergill v. Rowland, 17 L. R. Eq. 132. A court of equity moreover would enforce specific performance bv a purchaser of a contract to purchase debts Adderley v. Dixon, l'S. & S. 607; Wright v. Bell, 5 Price, 325; Dan. Ex. Rep. 95. And upon the ground that the remedy ought to be mutual, it would, upon a bill filed by a vendor, enforce specific performance of a contract to purchase debts, as it clearly would in the cases of land (see note to Seton v. Slade, vol. ii., j)ost), although he Thus in Adderley sought only payment of the purchase money. v. Dixon, 1 S. & S. 607, the plaintiffs, having purchased and taken assignments of certain debts which have been proved under two commissions of bankruptcy, agreed to stll them to the defendant Sir John Leach, V.-C, compelled a spefor 2s. Qd. in the pound. cific performance of the agreement at the suit^of the vendor. '"The present case," observed his Honor, "'being a contract for the sale of the uncertain dividends which may become payable from the estates of the two bankrupts, it appears to me, that upon the principle established by the cases of Ball v. Coggs (1 Bro. P. C. 140, Toml. ed. ), and Taylor v. Neville (3 Atk. 384, cited), a court of equity will decree specific performance, because damages at law cannot accurately represent the value of the future dividends; and to compel this purchaser to take such damages would be to compel
[
:

him

to sell those dividends at a conjectural price.

bill is

It

is

true, that

the present

not filed by the purchaser, but by the vendor,

who

3G0

CUDDEE

V.

RUTTER.

920

seeks, not the uncertain dividends, but the certain sum to bo paid for It lias, however, been settled by repeated decisions, thai the them. remedy in equity must bo mutual, and that whero a bill will lie for

the purchaser it will also lio for the vendor.' *So likewise the specific performance of a contract to sell [ * 9 L9 ] See Withy v. or purchase an annuity will be enforced. There a demurrer to a bill filed by the venS. 174. Cottle, 1 S. dor for the specific performance of an agreement for the purchase

&

an annuity payable out of the dividends of stock standing in the of the Accountant General of the Court of Chancery, was over" There can be no doubt," observed ruled by Sir John Leach, V.-C. his Honor, "that the defendant, who is the purchaser of this annuity, might havo filed a bill for the specific performance of the agreement for sale to him, because a court of law could not give him the subject of his contract, and the remedy hero must be mutual for purchaser and vendor:" And see Clifford v. Turrell, 1 Y. &C C.
of

name

C. 138, 9 Jur. G33. And a court of equity will,

on behalf of a vendor of life annuities, enforce specific performance of the contract, by compelling payment of the purchase-money, even after the death of the annuitant at any rate, where there are arrears of the annuity due, sufficient to support It is true that a court of equity ena bill filed by the annuitant. tertains a suit for specific performance by a 2^ ur chaser in order to givo him the very subject of his contract; nevertheless, although the demand of the vendor be merely for a sum of money, it will entertain a similar suit for him, upon the principle that, the remedies ought to be mutual: Kenney v. Wrexham, G Madd. 355, 357. And whero there is a valid contract for the salo of a patent, the Court will specifically enforce it, in a suit by a purchaser against the The opvendor, and will make the latter execute an assignment. posite also is equally true, that the vendor may come into equity for the purchase-money: Cogent v. Gibson, 33 Beav. 557. In contracts relating to commodities fluctuating from day to day in market price, the Court expects persons to be unusually vigilant and active in asserting their right to specific performance, which it is inequitable to grant after a delay on the part of the plaintiff, and when the parties may be no longer in the same position: Pollard v. Clayton, 1 K. Sc J. 462. Although courts of equity, as we have seen, will not ordinarily decree specific performance of contracts to purchase chattels, if dam ages at law will bean adequate compensation; neverthele>s, if a trust be created, the circumstance that the subject matter to which the trust is attached is a personal chattel, will not prevent the Court from enforcing the due execution of that trust, not only against the trustees themselves, but. against all persons who obtain possession of tho property affected by the trust, provided they had notice of tho U>>m1. per Sir J". trust: Pooley v. Budd, 14 Beav. 34, 4:1, "For instance, if a man about to contract [ *920] illy, * M. R.
:

361

* 921

CUDDEE

V.

RUTTER.

marriage, and possessed of a large and valuable quantity of iron, lead, or copper ore, assigned that ore to the trustees of the settlement, in trust to sell and invest the proceeds, and hold the pro-

ceeds when invested, upon the trusts of the settlement, there can be no question but that this Court would, before the sale, compel the possessor of the ore and the trustees of the settlement to fulfil every part of the trust Avhich one had undertaken to constitute, and the other had undertaken to execute:" lb. p. 43. See also Woody. Rowcliffe. 3 Hare, 304; 2 Ph. 382. So where a person had by agreement declared himself to be the trustee of stock for another person, with whose money it had been purchased, it was held, that the doctrine acted upon in the principal case was not applicable, and a transfer was compelled to the person beneficially entitled: Stanton v. Percival, 5 H. L. Cas. 257, 268. We have before seen that ordinarily specific performance of aeontract for the delivery of government stock will not be decreed (ante, In the principal case the Earl of Macclesfield, reversing p. 910). the decision of Sir J. Jekyll, M. R., refused to decree specific performance of a contract for the transfer of South Sea stock his reasons being, first, having relation to the subject matter of the contract that one man's stock did not differ from another man's stock; secondly, that the defendant had not the stock when the contract was made; and thirdly, that stock being subject to sudden rise and fall, the day was the most material part of the contract, and therefore contracts relating thereto were not proper for a court of equity to It will be observed that, although Lord Maccarry into execution. clesfield in his principal case refused specific performance, he ordered the defendant to pay the difference between the price agreed upon and the value of the stock on the day fixed upon for its delivery. In subsequent cases, except in a somewhat doubtful one of Lord Hardwicke, alluded to by Lord Eldon (10 Ves. 161), the courts have, as a general rule, declined to enforce specific performance of an agreement for the purchase of stock; but they have not followed Lord See Cappur Macclesfield in ordering the payment of the difference. v. Harris, Bunb. 135; Buxton v. Lister, 3 Atki 384; Nutbrown v. Thornton, 10 Ves. 161. It was held, however, by Sir John Leach, V.-C, that a bill would lie for the specific performance of a contract for the purchase of Neapolitan stock, where it prayed for the delivery of the certificates, which would constitute the plaintiff proprietor of a certain [*921] quantity of stock; "because," said his * Honor, "a court of law could not give the property, but could only give a remedy in damages, the beneficial effect of which must depend upon the personal responsibility of the party. I consider, also, that the plaintiff, not being the original holder of the scrip, but merely the bearer, may not be able to maintain any action at law upon the contract, and that if he has any title, it must be in equity:" Dolorety. Rothschild,

1 S.

&

S. 500.

362

CUDDEE

V.

RUTTER.

* 922

in another case the same judge held that a purchaser of a annuity payable out of dividends of stock could clearly maintain a bill for specific performance {Withy v. Cottle, 1 S. &S. L74), though it has been refused (partly on the ground of misrepresentation fin the case of a contract to sell a life intero^t in the public

And

life

funds: Brealey v. Collins, You. 317, 330. Contracts for the purchase of shares in companies, as distinguished from the public funds, will as a general rule be enforced. Thus parol in Duncuft v. Albrecht, 12 Sim. L89, specific performance of a agreement for the sale of some railway shares was decreed by Sir "The only question," observed his Honor, " is, L. Shadwell, V.-C. whether there has been any decision from whence you can extract a conclusion that the Court will not decree a specific performance Now, I agree that it of an agreement for the sale of such shares. has been long since decided, that you cannot have a bill for the specific performance of an agreement to transfer a certain quantity
But, in my opinion, there is not any sort of analogy beof stock. tween a quantity of ol. per Cents., or any other stock of that description (which is always to be had by any person who chooses to apply for it in the market), and a certain number of railway shares of a particular description, which railway shares are limited in number, and which, as has been observed, are not always to be had This decision was, on the 23rd of July, 1841, in the market."

And see Jackson v. Cocker, 4 affirmed by the Lord Chancellor. 5 De G. Mac. & G. Beav. 59; Shaw v. Fisher, 2 De G. & Sm. 11 v. Keating, 7 Wilson 2 & Jo. De G. 7; Kenivard, 3 Cheale v. 590; W. R. (M. R.) 484; Odessa Tramways Company v. Mendel, 8 Ch.
;

D. 235.

An agreement to accept a transfer of railway shares on which nothing has been paid, may be enforced as an agreement for valuable consideration, in consequence of the liabilities to which the purchaser is subjected, and from which the vendor is relieved upon the transfer: Cheale v. Kenward, 3 De G. & Jo. 27. And where specific performance has been decreed of a contract to purchase railway shares on proceedings taken by the vendor, the Court will order the purchaser to * pay the [ *922 ] calls that have been made since the sale, to indemnify the vendor against all futuro calls in respect of the shares, and to take Wynne v. proper measures to procure himself to be registered Price, 3 De G. & Sm. 310; Shaw v. Fisher, 5 De G. M. & G. 596 Walter v. Bartlett, 18 C. B. 845. As to specific performance on behalf of the purchaser of shares, see Ward and Henry's Case, 2 L. R. Ch. App. 431, reversing S. C, 2 L. R., Eq. 226. Where, however, a person, previous to the passing of the Act of Parliament authorising a proposed railway, purchased some "scrip certificates," and upon payment of the purchase-money received and returned the certificates, though no particular contract was entered
:

363

* 923

CUDDEE

V.

RUTTER.

into upon tho occasion, it was held by Lord Langdale, M. R., that after the Act had passed, the purchaser was not bound to take a transfer of tho corresponding shares from tho vendor, or to indemnify him from the amount of calls subsequently made. '"This/' said his Lordship, "is called a purchase of share.-, when it is a purchase of mere certificates, and the question is, whether there is a contract on the part of the defendant to become a proprietor at all events?

I cannot find it expressed, and I cannot raise it by implication of There is not, in my opinion, any evidence of such an agreelaw. ment as tho plaintiff seeks to have specifically performed: and the bill must therefore be dismissed with costs:" Jackson v. Cocker, 4

Beav. 50, 06.

An agreement to accept shares in a joint stock company by a defendant who fills up and signs a form to that effect, will be specifically performed against him in equity ( The New Br un side k and Canada Railway and Land Company [Limited) v* Muggeridge, 4 Drew. 686); but to entitle tho directors to relief, their proceedings must bo prompt ( The Oriental Inland Steam Company (Limited) v. Briggs, 2 J. & H. 625; Odessa Tramways Company v. Mendel, 8 Ch. D. 235); and it seems that specific performance will not be decreed to take shares where the partnership might be immediately put an end to: The Sheffield Gas Consumers' Company [Registered) v. Harrison, 17 Beav. 294, but see the observations on this case in The Neiu Brunswick &c., Company v. Muggeridge, 4 Drew. 686. Much discussion has of late taken place with reference to the liability of stock-jobbers, or buyers from them, towards tho vendors
of shares.
It is now, however, finally settled, after some conflict of decisions, that the contract of a jobber who purchases shares is, that at the settling-day he will either take the shares himself, in which case he would be bound to accept and register a transfer and to indemnify the vendor, or that he will give him the names of one * or more transferees names to which no reasonable [ *923 ] objection can be made, who will accept and pay for the shares [Coles v. Bristowe, 4 L. R. Ch. App. 11, per Lord Cairns, L. C); and the broker of a purchaser seems to stand in tho same position: Maxted v. Paine, 6 L. R. Ex. 132, 170. Not only will the jobber be liable where he has not furnished the names of proper transferees who accept the shai'es, but also where other terms are added to the original contract, which ho does not fulfil, by a complete novation, or a substitution of another contract for the original contract, his liabilitv as principal will remain. See Cruse v. Paine, 4 L. R. Ch. App. 441. There the plaintifi, through his brokers, agreed to sell to the defendants, who were stock- jobbers, 100 shares in a company. The sale note was in the usual form, with the addition of the words 'with registration guaranteed^ The defendants before the day sent to the plaintiff's brokers the name The seller exof a transferee who duly paid the purchase-money.

364

CUDDEE

V.

BUTTER.

* 924

Tbo ecutod tbe deed of transfer, and delivered it to tbo transferee. transferee never registered the transfer, and calls were made upon the seller. Upon a bill being filed against the stock-jobbers, for specific performance and indemnity, it was held by tbo Lord Chancellor (Lord Hatherly), affirming tbo decision of Sir G. M. Giffard, V. C. (G L. R. Eq. 041), that tbe plaintiff was entitled to a decree, inasmuch as the terms of tbo contract wero not merely that the jobber should find a purchaser who should pay for tho shares and accept the transfer, but that tho jobber should find a purchaser who would do that, and would also register the transfer; and until that bad been done, the jobber was not discharged from his engagement. See also Maxted v. Paine, 4 L. II. Ex. 203; Grissell v. Bristoiue, 4 L. R. C. P. 36; reversing S. C, 3 L. R. C. P. 112; Davis v. Haycock, 4 L. R. Ex. 373. Where, however, the jobber, in an ordinary contract, without any guarantee of registration, instead of taking the shares himself, elects to perform the other alternative, and sends in names which are accepted, and to which transfers aro taken and paid for by tho transferees or their brokers; tho jobber is then and at that stage relieved from further liability, and tho liability to register and indemnify is shifted to the transferees. See Coles v. Jlristoice, 4 L. R. Ch. App. 3; there the plaintift, a bolder of 200 shares in a company, by his brokers contracted on tho Stock Exchango for the sale of that number of shares to the defendants, who wero jobbers, for a future day called settling-day. Before the settling-day, tbo jobbers on the day called the name-day, in accordance with custom of tbo * Stock Exchange, gavo to the vendor's [*924'J broker tho names of seventeen persons as ultimate purchasers, to whom tbe shares wero to bo transferred in different parcels. Tho brokers of tho vendor accordingly prepared seventeen deeds of transfer, got them executed by tho vendor, and on settlingday handed them and tho share certificates to the jobbers, who thereupon paid the prico agreed upon. In the meantime, tho company had stopped payment, and was ordered to bo wound up. Tho seventeen transferees, through their brokers, had paid their purchasemoney to the jobbers, and had received but not executed tbe deeds of transfer, and the plaintiff, whose name remained on the list of shareholders, was obliged to pay calls on these shares. The plaintiff thereupon filed a bill against tho jobbers, claiming ind< mnity against the calls. It was held by tbo Court of Appeal in Chancery, reversing the decision of Sir B. Malins, V. C. (reported G L. R. Eq. 149), that the contract between the plaintiff and the jobbers must be interpreted according to tho rules of the Stock Exchange, and that after tho jobbers had paid to tho vendor his purchase-money, and given the names of transferees to whom the vendor executed transfers, and after these transferees through their brokers bad received tho transfers and paid their purchase-money to the brokers,
305

* 925

CUDDEE

V.

RUTTER.

the liability of the jobbers be dismissed.

had

ceased,

and that the

bill

ought to

In that case there had been in effect a novation of the contract, and the liability of the transferees was substituted for that of the jobSee also Boivring v. Shepherd, 6 L. B. Q. B. 309. bers. have before seen that it is incumbent upon the jobber at the
settling-day to give in names, as transferees, of persons to whom no reasonable objection can be made. Hence, when the name of an infant is given by the jobber as a purchaser, the jobber, even although he is ignorant of the fact of the infancy, and a transfer has beenexecuted to the infant, will be compelled to indemnify the vendor: Nickalls v. Merry, 7 L. E. Ho. Lo. 530, affirming the decision of the Lords Justices who reversed the decision of Sir J. Bacon, V.-C, nom. Merry v. Nickalls, reported 20 W. E. 531, 26 L. T. Eep. (N. S.) 49G, and overruled the decision of Lord Romilhj, M. E., in Rennie v. Mofris, 13 L. E. Eq. 203. See also Heritage v. But the actual purchaser, who forwards the Paine, 2 Ch. D. 594.

We

namo of an infant to the jobber, will be compelled to indemnify the Peppercorne v. Clench, 26 L. T. Eep. (N. S.) 656. See jobber: also Brown v. Black, 8 L. E. Ch. App. 939, varying S. C, 15 L. E. Eq. 363. The resuit will be the same * where the name given is [* 925] that of a non-existent person, a lunatic, a married woman, or a person who has given no authority for the use of his name: Nickalls v. Merry, 7 Ho. Lo. 530, 541.

A reasonablo objection may, it seems, be made, where the name given is that or a foreigner resident abroad, as at Smyrna, unless it be shown that such person was not really objectionable, or unless the objection be waived: Allen v. Graves, 5 L. E. Q. B. 478, 488. It is not essential to the validity of the nomination that the name Thus, where the name given given should be that of a sub vendee. was that of a person of no means, who consented to allow his name to be used in consideration of a sum of money paid to him, and the name ivas not objected to by the vendor's brokers within the time allowed by the usages of the Stock Exchange, it was held that the original purchaser had performed his contract, and was no longer E. Ex. 132, affirming S. C, 4 L. E. liable; Maxted v. Paine, 6

Ex. 203.
stock-jobbers have bought shares on the Stock Exchange, to brokers, who have furnished the names of are to be made, upon the delivery by the transfers whom parties to stock-jobbers of the transfers duly executed with the certificates to the parties named, and payment of the consideration by them, the stock-brokers may commence an action against the transferees, and

Where

and sold them again

oblige them to register and indemnify them from all calls: Davis v. Haycock, 4 L. E. Ex. 373; Boivring v. Shepherd, 6 L. E. Q. B. 309; and see Sheppard v. Murphy, 2 Ir. E. Eq. 544; Grissel v. Bris-

366

CUDDEE
taive,

V.

RUTTER.

926

4 L. R. C. P. 51; Hawkins v. Maltby,i L. R. Eq. 574; 3 L. R. Ch. App. 188; G L. R. Eq. 505; 4 L. R. Ch. App. 200. In some cases it has been said, hut not actually decided, that the new contract arises at an earlier period, viz., when the name is accepted by the plaintiff's brokers, which contract, according to one learned judge, binds the defendant at least to accept the transfer (Bowring v. Shepherd, 6 L. R. Q. B. 328, per Brett, J.), and according to another learned judge, even to indemnify the plaintiff against future calls: Davis v. Haycock, 4 L. R. Ex. 384, per Kelly, C. B. There is no contract between the original vendor of shares and The contract which such person in any intermediate purchaser. effect enters into with the party from whom ho purchases, is to accept the shares and pay the price on the settling day, or in the interim to give the name of a competent transferee, and upon his giving the name of such person, he, upon accepting the transfer, takes upon himself all the obligations of the intermediate purchaser towards his own vendor, who cannot be called upon in any way to indemnify * the original vendor: Viscount Tor- [*926] ringfon v. Loive, 4 L. R. C. P. 26; sed vide Castellan v. Hobson, 10 L. R. Eq. 47. And where the actual purchaser of shares, or his broker, gives the name of a third party, as purchaser to whom the transfers ai'e made out, if such third party by his conduct induces the vendor to believe that he has adopted the contract, he will be compelled specifically to perform it. See Shepherd v. Gillespie, 5 L. R. Eq. 293; there a broker, on the instructions of Wilkinson, purchased from the plaintiff shares in a company subsequently wound up, and on the settling day the broker, also on tho instructions of Wilkinson, gave the name of Gillespie as tho purchaser, and the deeds of transfer were made out in Gillespie's name and delivered to him for execution, and he for some time retained possession of and dealt with them. Wilkinson informed Gillespie, that he had passed his name as transferee, and had also passed a cheque on the company's bankers for tho purchase-money to the debit of his firm. Gillespie took no step to inform tho vendor that he did not assent to the contract, though ho did express his dissent to Wilkinson. It was held by Sir John Stuart, V.-C, that the vendor was entitled to specific performance of the contract against Gillespie, and to have the shares register'.! in Gillespie's name, and to be repaid by Gillespio all calls which he had already paid, and to be indemnified against future calls, and against all liability, loss, costs, damages, and expenses which he had incurred or might thereafter incur, by reason of being settled on the list of contributories, in respect of such shares. See also Shaiv v. Fisher, 5 De G. Mac. & G. 596; Morton's Case. 16 L. R. Eq. 104. See Form of Decree, 5 L. R. Eq. 298, 299, 300. Tho fact that tho plaintiff was only equitable owner of shares registered in tho namo of a third person, does not disentitle him to

367

* 927

CUDDEE

V.

RUTTER.

a decree for specific performance and indemnity: Paine v. Hutchinson, 3 L. R. Eq. 257; 3 L. R. Ch. App. 338. And the fact that a call has been made before the purchase of

shares would not seem, in the absence of fraud or misrepresentation, have the effect of rendering the contract invalid. This point was thus extrajudicially determined, by Lord Chelmsford, C., in the case of Haickins v. Maltby, 4 L. R. Eq. 572; differing "from the opinion expressed by Wood, V. C, in S. C, 3 L. R. Ch. App. 188. See also S. C, 6 L. R. Eq. 505; 4 L. R. Ch. App. 200. It is then no objection to specific performance, that a call may have been made by the company upon shareholders, of which call the purchaser had no notice, at any rate, where there was * practised by the vendor: Hawkins v. Malt[ *927 ] no deception by, 3 L. R. Ch. App. 188; 4 L. R. Ch. App. 202. Nor is it any objection to specific performance, that after the sale of the shares, the company was ordered to be wound up: Paine v. Hutchinson, 3 L. R. Ch. App. 388; Hodgkinson v. Kelly, 6 L. R. Eq. 490; Hawkins v. Maltby, 6 L. R. Eq. 505; 4 L. R. Ch. App. 200; Sheppard v. Murphy, 1 Ir. R. Eq. 490; 2 Ir. R. Eq. 544. The question has arisen when the directors of a company having by their constitution power to refuse to register transfers, take upon themselves to refuse to register a purchaser, whether he is not thereby absolved from the performance of the contract. It seems that where the contract is not made on the Stock Exchange, but with reference to the rules of the company which require the vendor to do all that is essential to the transfer, if he fails to procure the assent of the directors to the transfer, the purchaser is released from the contract, and if he has paid the purchase-money in ignorance of the refusal of the directors, he can recover it back: Wilkinson v. Lloyd, 7 Q. B. 27; and see Stray v. Russell, 1 Ell. & Ell. 900. Where, however, the contract is made on the Stock Exchange and subject to its rules, in the absence of express contract, it is not the vendor's duty to procure registration of the transfer, and ho will have performed his part of tho contract, by the delivery of the transfer and certificates: Remfry v. Butler, Ell. B. & E. 8S7; Stray v. Russell, 1 Ell. & Ell. 888, 900. "When the cases fall under neither of the two before- mentioned classes, the authorities are conflicting. Lord Romilly appears to have thought that in no case could the contract be performed unless the purchaser's name bo put upon the register (Bermingham v. Sheridan, 33 Beav. G60); but that the Court could compel directors to admit a purchaser if they wilfully refused to do so: (Robinson v. The Chartered Bank, 1 L. R. Eq. 32; and see Re Gresham Life Assurance Society, 8 L. R. Ch. App. 440). Lord Chelmsford however was of opinion, that the exercise by tho directors of their power to decline to legister a purchaser will not furnish him with a defence to proceedings for specific performance. "The directors," said his Lordship, "may decline to register, but
to
'

3G8

CUDDEE
the transaction
feree:"
is

V.

Rl'TTER.

* 929

complete, as between tho transferor and transMaltby, 3 L. R. Ch. App. 194. In a subsequent case before Lord Romilly, the deed of settlement provided "that no shareholder should transfer his shares except in such manner as a board of directors should approve." A shareholder agreed to sell his shares, and the board *hav- [ * 928 ] ing refused to consent to his making the transfer, the vendor The purchaser filed his bill, and obtained then refused to complete. a decree upon the ground that the deed of settlement did not prevent tlic Bale of shares, or give the board power to exercise an arbi trary or unreasonable will to reject the mode of transfer, and in case the parties differed, the conveyance was to be settled at Chamber-: Poole x. MiddMon, 29 Beav. 646. It would seem that, even independently of the rules of the Stock Exchange, and in tho absence of special contract, although there is no absolute decision on the point, that the duty of procuring registration rests with the purchaser (see Sheppard v. Murphy, 2 Ir. 11. Eq. 544; Evans v. Wood, 5 L. K. Eq. 9; Hodgkinson v. Kelly, 6 L. E. Eq. 49(5; Stray v. Russell, 1 Ell. & Ell. 888); and if this be so, performance cannot prejudice the vendor, whom he is bound his And specific performance with an indemnity will be to indemnify. decreed against the purchaser, although by accident he only sent the transfers for registration after the company had stopped pay-

Hawkins

v.

mm

ment: Evans v. Wood, 5 L. R. Eq. 9. In the absence, moreover, of evidence that the transferee was objectionable, it would be presumed that the directors, though having a discretionary power to refuse, would have registered the transfer (lb.), for the directors could not have refused arbitrarily or wantonly to register: lb. and see Poole v. MiddMon, 29 Beav. 646. With regard to the question how far the winding up of a company can be treated as an objection to specific performance of a contract to purchase shares therein, it seems that if a person has agreed to purchase shares, or even if he has paid the purchase money and executed the transfer, if he did so in ignorance that a petition fox winding up the company had been presented before the contract, the Court would not decree specific performance thereof, or render him liable as a contributory by directing his name to be put upon the register: Enimerson's Case, 1 L. R. Ch. App. 433. But where a petition for winding up has been presented after the making of the contract, it will not be allowed as a defence to specific performance and indemnity, for it is obvious that tho purchaser of shares was as much bound to know that the company in which he bought shares was liable to stop payment and be wound up, as a purchaser of a house is bound to know that it is liable to be burnt down, and that that is a risk which he takes upon himself by enterSee Coles v. Brising into the contract for its purchase. towe, 6 L. R. Eq. * 149, 159, 160; reversed on another [ * 929 ] * 24 WHITE ON EQUITY. 369

* 929

CUDDEE

V.

RUTTER.

point, 4 L. R. _Ch. App. 3; Cruse v. Paine, 4 L. R. Ch. App. 441: Taylor v. Stray, 2 C. B. N. S. 175. The discretion of directors to forfeit shares. for non-payment of calls is a trust to be exercised for the benefit of all the shareholders;

an agreement, therefore, on the part of directors with a shareholder him from further liability on his consenting to an absolute forfeiture, will not be enforced if it appears not to have been a proper exercise of the discretion on the part of the directors: Harris v. The North Devon Railway Company, 20 Beav. 384. It may be here mentioned, that all contracts after the 1st of July, 1867, for the sale of shares and stock in joint stock banking companies are void, unless the numbers by which such shares are distinguished are set forth in such contracts. 30 & 31 Vict. c. 29 s.
to relieve

An error in the distinguishing numbers of shares in a transfer immaterial, as it may be afterwards rectified: In re International Contract Company, IncVs Case, 7 L. R. Ch. App. 485, as to failure to complv with Act, see Perry v. Barnett, 14 Q. B. D. 467, W. N. 1885, July 4, P. 141. It has been decided that a Court of equity will neither decree specific performance of a contract to lend (Sichely. Mosenthal, 30 Beav. 371; Thorpe v. Hosford, 20 W. R. (V.-C. B.) 922; but see Bass v. Clirely, Taml. 80), nor of a contract to borrow (Rogers v. ChaUis, 27 Beav. 175) or to pay (Crampiton v The Varna Railway Company, 7 L R. Ch. App. 562, and see Larios v. Bonany y Gurety, 5 L. R. P. C. C. 346; Brough v. Oddy, 1 R. & M. 55) money; but the Court will always decree specific performance of an agreement to execute a mortgage in consideration of money actually advanced at or before the time of the contract Ashton v. Con^igan, 13 L. R. Eq. 76; Hermann v. Hodges, 16 L. R. Eq. 18) or an agreement by parol to execute a bill of sale of personal [chattels to secure the plaintiff against certain liabilities: Taylor v. Eckersley, 2 Ch. D. 302. The specific performance of contracts for the purchase of chattels, may, clearly, be resisted upon the same grounds as the specific performance of other contracts. [A party seeking specific performance must not only have a claim which rests on a valuable consideration, but he must also show that damages would not afford him an adequate compensation, therefore, if the payment of a certain sum of money will adequately redress the wrong equity will This is the reason for the difference between the not interfere. rule in regard to specific performances of contracts relating to real The distinction is not estate and those which concern personalty. founded on the nature of the property) but upon the fact that monetary damages would not operate to give a person all the redress he ought to have in cases of real estate, while in regards to personal property such damagesare usually sufficient.] Thus, in a recent case, where the plaintiff had, without actual fraud, contracted for the purchase of two very valuable jars, the parties not
1.

is

370

CUDDEE

V.

RUTTER.

* 930

being upon an equal footing, since the plaintiff well knew, and the vendor (who was an elderly lady) was ignorant of their value, and sold them at an inadequate price, Sir R. T. Kinder* ley, V.-C, dis missed the bill seeking specific performance of the contract: Falcke v. Gray, 4 Drew. 651. In the principal case, the Lord Chancellor lays it down as a *general rule, "That the Court will not decree a specific [ * 930 performance of a contract when the party has not the thing This was acted upon in a modern case, a bill having to deliver." been tiled against the provisional committee of a projected railway company for specific performance of an agreement to deliver to the
I

plaintiff a certain

number of scrip certificates; as there was no allethat the defendants had in their possession any scrip to deliver, but statements from which the contrary might rather be inferred, Lord Cottenham, G, allowed a demurrer to the See Pollard v. Clayton, V bill: Columbine v. Chicliester. 2 Ph. 27.
gation in the
bill

K.

&

J.

475.

is an exception to the ordinary rule of specific performance, when British ships, or shares in them, form the subject-matter of the contract; for it is clear that a Court of equity will not enforce a contract for the purchase, either of a British ship, or shares in a British ship: inasmuch as, according to the policy of this country, both under the old Ship Registrv Acts; (26 Geo. 3,

There

c.

60; 34 Geo. 3, c. 68; 4 Geo. 4. c. 41; 6 Geo. 4, c. 110; 3 & 4 4, c. 55; Brewster v. Clarke, 2 Mer. 75; Thomp>son v. Leake, Graves, ib. 399, n. Battersby v. Smith, 1 Madd. 39; Neivnham v. 3 Madd. 110), and under the Act more recently in force (8 Vict. c. 89, ss. 34, 37, Huglies v. Morris, 2 De G. M. & G. 349, 357; S. C. 9 Hare, 636; M'Calmont v. Rankin, 2 De G. Mac. & G. 403; Coombes v. Mansfield, 3 Drew. 193; Duncan v. Tindall, 13 C. B. 258), there could be no transfer of a ship in equity that is not a
Will.
;

&9

transfer at law.

Under the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), although it has been held that an executory contract for an equitable mortgage, not complying with the formalities of the Act could not be enforced (The Liverpool Borough Bank v. Turner, 2 De G. F. & Jo. 502, affirming the decision of Sir W. P. Wood, V.-C, 1 J. & H. 159; M'Lartyx. Middleton, 9 W. R. (V.-C. K.) 861; Chapman v. Callis, 9 C. B. N. S. 769, and a purchaser under a judicial sale of a beneficial interest in a British ship is not entitled to be registered as the owuer thereof Chasteauneuf v. Capeyron, 7 App. Ca. 127, and it is the practice on a sale of a ship in execu tion of a judgment by the sheriff, or by order of the High Court of Admiralty, that the sheriff in the former case, and the marshal or commissioner in the latter, execute a bill of sale, in order to entitle the purchaser to be registered in accordance with the Merchant Il>. 125. It has however, been decided that Shipping Act, 1854 it is not necessary to register an agreement to transfer a ship to a
371

* 932
[

CUDDEE

V.

RUTTER.

* 931 * such agree] purchaser, and that specific performance of ment may be decreed notwithstanding the non-registration; Batthijanxj v. Bouch, 44 L. T. (N. S.) 177. By the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), it is declared to be the intention of the Merchant Shipping Act, 1854, that without prejudice to the provisions contained in that Act for preventing notice of trusts from being entered in the register book, or received by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by that Act on registered owners and mortgagees, and without prejudice to the provisions contained in that Act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interests therein, in the same manner as equities may be enforced against them in respect of any other personal property.
Sect, 3.

Hence it has since the passing of this Act been decided that where there has been a complete transfer of a ship, there is nothing in the Act 17 & 18 Vict. c. 104, which prevents the transferor from showing the real intention of the parties, viz. that the instrument
:

should operate as a security only for the money advanced, the absolute interest remaining in the transferor only: Ward v. Beck, 9 Jur. N. S. 912; 13 C. B. N. S. 668; and see Stapleton v. Haymen, 2 H. & C. And it seems to be clear, that a non918; 12 AY. B. (Exch.) 317. registered agreement for a sale of a ship can now be enforced. The policy, however, of the Ship Begistry Acts was held not to be in all cases applicable to contracts to sell the proceeds arising from the sale of ships, which may be enforced. Thus, in Armstrong v. Armstrong, 21 Beav. 78, shares in a British ship, purchased with his father's money, were registered in the name of the defendant, Armstrong. After the father's death, the defendant, Armstrong, entered into an agreement with his father's representatives, admitting their right, and, for valuable consideration, agreeing to sell the shares at the end of twelve months, and to account to the repreThe ship was accordingly sold. It sentatives for the proceeds. was held by Sir John Romilly, M. B., that, although the Ship Begistry Acts prevented the representatives enforcing any right against the ship itself still that they were entitled to recover the proceeds
;

" of the sale in the hands of the purchaser. opinion," said his Honor, " is that the agreement here does not give any interest in the ship, but is an agreement that at the expiration of the period

My

mentioned, the defendant Armstrong is to sell the shares and pay over the proceeds * thereof according to the will of his father. That is exactly what Lord St. Leonards says in M'Calmont v. Rankin, 2 De G. Mac. & G. 424. I do not lay down any rule that parties cannot authorise a ship to be sold, and direct in what manner the money shall be applied The result, is that, in my opinion, this is an agreement which is 372
[

*932

CUDDEK

V.

RUTTER.

* 933

binding on the defendant Armstrong, that it is capable of being enforced in this Court, and that the money arising from the sale <>f the ship being now available, he is bound to account for it in the manner provided by this agreement." See, however, and consider Coombes v. Mansfield, 3 Drew. 198; Parr v. Applebee, 7DeG. Mac. Clarke v. Batters, 1 K. & J. 242. <fc G. 585; The Court has frequently stated that fraud might warrant its interference, but there is no case in the books in which the particular fraud which would create an interest in a ship has occurred: WCalmont v. Rankin, 2 De G. Mac. & G. 416; Armstrong v. Arm It seems, however, that where a person strong, 21 Beav. 71, 87. procures it to be registered in his name, ship, title to a no having the Court of Chancery will compel him to re-transfer it to the rightful owner and account for the earnings, even though there has been no fraud, and notwithstanding the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104): Holderness v. Lamport, 29 Beav.
129. It was, moreover, decided at law, that an action would not lie for the breach of an executory contract for the sale or transfer of a ship, unless ihe contract contained a recital of the certificate of reg9 Vict. c. 89, s. 34: Duncan v. Tindal, 13 istry, pursuant to the 8

&

C. B. 258.

the discharge of a mortgage on a ship has been duly regmortgage cannot, without contravening the policy and provisions of the Merchant Shipping Act, 1854 (17 & 18 Vict c. 104), be revived on an allegation that the discharge was given by mistake Bell v. Blyth, 4 L. R. Ch. App. 136, 139. The policy of the old Shipping Acts not extending to foreign ships, it is clear that the Court has jurisdiction to compel a specific performance by a foreigner to sell a foreign ship (Hart v. Herwig, 8 L. R. Ch. App. 680), and to restrain persons proceeding to re-

When

istered, the

move

lb. the ship from this Country it must be borne in mind that the Registry Acts are not applicable to a British ship built in order to be sold to a foreigner, and to be delivered at a foreign port The Union Bank of London v. Lenanton, 3 C. P. D. 243. The specific delivery of goods sold may now be enforced at law
:

And

Vict.

Common Law Procedure Act, 1854 (17 & 18 See Dav's Comm. Law Proc. Acts, 4th [*933 *c. 125). ed., 323, 325; post, p. 966. An equitable defenco to the enforcement of delivery of the chattel sold, might before the passing of the Judicature Act, 1873 (by which law and equity are to be administered concurrently in all the divisions of the High Court of Justice, sect. 24), be set up; as for
under the
I

instance that the person employed to sell, sold it by mistake at one third of the price fixed upon it by the owner: Isaac v. Boulnois, 1 W. R. (Q. B.) 341. The old Court of Bankruptcy had no jurisdiction to compel specific

373

* 934

CUDDEE

V.

RUTTER.

performance: Ex parte Cutts, 3 Deac. 242, overruling Ex parte Sidebottham, 1 Mont. & Ayr. 655; Ex parte Barrington, 2 Mont. & Whether the new courts have, has not yet been deterAyr. 245. mined: Robs. Bkcy. 5th ed., 354.

Although in some 2. As to contracts relating to personal acts.] instances the line of demarcation between the cases already considered, principally relating to the sale of real and personal property and some of the cases now about to be considered, is not quite clear; it is perhaps on the whole the most convenient which could be
adopted.
It appears to contracts to do certain works. notwithstanding some early decisions to the contrary (see 1 Madd. Ch. Pract. 361; Buxton v. Lister, 3 Atk. 385; City of London v. Nash, 6 Atk. 512, 1 Ves. 12), it is now settled that with some few exceptions the Court will not decree specific performance of contracts to do certain works, such as to build or repair ( Erring ton v. Aynesley, 2 Bro. C. C. 341; 2 Dick. 692; Lucas v. Commerford, 3 Bro. C. C. 166; Paxton v. Newton, 2 Sm. & Giff. 437; Kay v. Johnson, 2 H. & M. 118; Wheatley v. Westminster Brymbo Coal Company, 9 L. R. Eq. 538), to make a railway (South Wales Railway Company v. Wythes, 1 K. & J. 186, 5 De G. Mac. & G. 880; Greenhill v. Isle of Wright Railivay Co., 19 W. R. 345), to work quarries (Booth v. Pollard, 4 Y. & C. Exch. 61), coal mines (Pollard v. Clayton, 1 K. & J. 462, and see Lord Abinger v. Clayton, 17 L. R. Eq. 358), to make good a gravel pit: Flint v. Brandon, 8 Ves.

And first with regard

that,

159.

the Court does not decree specific perthe enormous inconvenience which would attend the operation of the Court, if it were to take upon itself, as between builders, contractors, railway companies and others, the erection and construction of a large number of buildings, and

The

principal reason

why

formance in such cases

is,

probably half the railways in the kingdom. See The South Wales Railway Company v. Wythes, 1 K. & J. 200. The Court, moreover, will not enforce specifically the * especially if they [ * 934 ] performance of continuous duties, would spread over a long period of time, as the Court could not undertake to see to such performance: Blackett v. Bates, 1 L. R, Ch. App. 117; Powell Duffryn Steam Coal Company v. Taff Vale Railway Company, 9 L. R. Ch. App. 331. It may be here mentioned that when an agreement is entire, the Court will not compel the defendant to fulfil his part unless the plaintiff fulfils his part also: Blackett v. Bates, 1 L. R, Ch. App. 117, reversing S. C, 2 H. & M. 270, 610; Gervaisy. Edwards, 2 D. & War. Secus 80; Hills v. Croll, 2 Ph. 60; Firth v. Ridley, 33 Beav. 516. when the agreement is divisible: Wilkinson v. Clements, 8 L. R. Ch. App. 96; Odessa Tramways Company v. Mendel, 8 Ch. D. 235. In a case decided before the passing of Lord Cairns' Act (21 &

374

CUDDEE

V.

RUTTER.

* 935

22 Vict. c. 27), A. agreed to grant a lease to B. as soon as B. should have built a house with the necessary outbuildings on the land of the value of 1400/. at the least, "according to a plan to be submitted to and approved by A." B. agreed to build and take the lease. No plan had been approved of It was held by Sir Roniilly, M. 11., that no decree could be made for specific perform ance, and a bill filed by A. for that purpose was dismissed with costs: Brace v. Wehnert, 25 Beav. 348. And see Norris v. Jackson, 1 J. & H. 319, where specific performance of an agreement by a
./'.

landlord to execute repairs was refused. The jurisdiction of the Court was considerably increased by Lord Cairns' Act (21 & 22 Vict. c. 27), hence it has been decided since its passing that the performance of certain acts, such as making certain buildings or repairs, is merely incidental to a contract of which the specific performance would ordinarily be decreed, such as a contract to grant a lease, the Court will direct the contract for a lease to be specifically formed, and will, if necessary, direct an inquiry as to damages under section 2 of Lord Cairns' Act. See Middle ton v. Greenwood (2 De G. Jo. & Sm. 142), there the defendant agreed to grant the plaintiff a lease of a public-house, and to make and form therein a spirit vault, and put in plate-glass windows, and do everything therewith necessary at his own expense, and paint new the outside of all the woodwork, as well as put the slates, chimney-pots and rooting in thorough repair. The Lord Justices of the Court of Appeal, affirming the decision of Sir W. Page V/ood, V.-C, directed specific performance of the agreement to grant the lease, and directed the inquiry as to damages for the non-performance of the agreement with respect to the vault, windows, painting,

and

repairs.

where there was an agreement for the building *'of a house, and also for the grant and accept- [ * 935 ] ance of a lease, it was held that the Court could compel specific performance of the agreement to accept the lease, and give damages for not building the house: Soames v. Edge, Johns. 669; Mayor, dr., of London v. Southgate, 17 W. R. 197, 38 L. J. Ch. 441. See also Kay v. Johnson, 2 Hem. & Mill. 118; Oxford v. Provand, 2 L. R. P. C. 135; and see Blackett v. Bates, 2 H. & M. 270, where it was held that although a Court of Equity will not decree specific performance of an agreement to repair a railway simpliciter, it will do so if the agreement forms a collateral part only of a larger agreement, and the relation of lessee and lessor has been created between the parties. This case, however, was reversed on appeal by Lord (ranicorth, C, 1 Law R. Ch. App. 117. Lord Rosslyn, C, was of opinion that if an agreement for building were in its nature defined, there would be no great difficulty in decreeing specific performance: Moselyv. Virgin, 3 Ves. 185: Mr. Justice Story has expressed the same opinion. And see Stor. Eq. Jur. s. 728, and Sir J. Stuart, V.-C. acted upon Cubitt v. Smitli, 10
So, moreover,

375

* 936

CUDDEE

V.

RUTTER.

And it seems that in Scotland the Courts have in Jur. N. S. 1123. a very sensible manner solved the difficulty which has prevented the English Courts from compelling the specific performance of contracts to build by the appointment of a proper person to superintend the performance of the work: Clark v. Glasgow Assurance Co., 1 M'QueeD, Ho. Lo. Ca. 670. Where the defendant under the contract with the plaintiff has obtained possession of land, it is clear that the Court has jurisdiction to enforce specific performance of another part of such contract by the defendant to do defined work upon such land, in the performance of which the plaintiff has a material interest, and which is not See Storerv. Great capable of adequate compensation in damages. Western Raihvay Co., 2 Y. &C. C. C. 48, where Sir J. L. KnightBruce, V.-C, made an order that the defendants, the company, were bound to construct and forever thereafter to maintain on land purchased from the plaintiff one neat archway sufficient to permit a So in Franklin loaded carriage of hay to pass under the railway. v. Tut on, 5 Madd. 469, the defendant was lessee from the plaintiff of certain building ground and covenanted that the house to be built by her should correspond with the adjoining houses already
The bill was to compel the defendant, who built in its elevation. had not conformed to the covenant, to alter the elevation accordingly, and Sir John Leach, V.-C, decreed according to the prayer of
the
[

bill.

Orders of this kind have frequently been made where * companies have contracted to do works on lands acquired from the plaintiff. See Sanderson v. Cockermouth and Workington Raihvay, ill B^av. 497; Lytton v. Great Northern Railway Company, 2 K. & J. 394; Lord Darnley v. London, Chat-

*936] railway

ham, and Dover Raihvay Company, 1 De G. J. & S. 204; 2 L. K. Ho. Lo. 43; Wilson v. Furness Raihvay Company, 9 L. R. Eq. 28; Attorney -General v. Mid-Kent Raihvay Company and South- Eastern Raihvay Company, 3 L. R. Ch. App. 100; Hood v. North-Eastern Raihvay Company, 5 L. R. Ch. App. 525; Wilson v. Northampton and Banbury Junction Raihvay Company, 9 L. R. Ch. App. 279; Greene v. West Cheshire Raihvay Company, 13 L. R. Eq. 44; Cooke
v.

Chilcott, 3 Ch. D. 694.

similar order was indirectly made by Lord Eldon in Lane v. Neivdigate, 10 Ves. 192, where although he refused to make an order on the defendant specifically to repair the banks of a canal and stop-gates and other works, his Lordship nevertheless made an order by which the same effect was obtained, the defendant being restrained from impeding the plaintiff from navigating, using, and enjoying the canal, by continuing to keep the canal, banks, or works out of repair, by diverting the water, or continuing the removal of

a stop-gate.

The ground which makes a Court of equity more anxious to decree specific performance of a contract to do certain works, as to
376

CUDDEE

V.

RUTTER.

937

The South Wales Railway Company performance of the contract. see Price v. The 'orporation of Penand 200; & J. 1 K. v. Wythes, was zance, 4 Hare, 500, where a contract to erect, a market-place K. Eq. L3 L. Company, Cheshire v. West Greene see and enforced; siding was 4 I, where specific performance of a contract to make a See also Storer v. The Great Western Railway Company, decreed. 3 Railw. Ca. 106, 2 Y. & C. C. C. 48; Soamesv. Edge, Johns. 009; Wilson v. Furness Railway Company, 9 L. R. Eq. 28. where there have been acts amounting to a part performAgain, 3 ance of the contract, the Court will compel specific performance, which, without such acts, it might not do: (Price v. Cor} orationof Penzance, 4 Hare, 506,500; see aiso Pembroke v. Thorpe, 3 Swanst. 437, n.; Sanderson v. Cockermouth and Workington Railway Company, 11 Beav. 497; Oxford v. Provand, 2 L. R. P. C. 135; Crook Corporation of Seaford, 10 L. R. Eq. 078), but acts of part perv. formance will not of themselves supply the want of jurisdiction * in their absence: Kirk v. Bromley Union, 2 Ph. [*937] 040, 648; Crampton v. Varna Railway Company, 7 L. R. And see South Wales Railway Company v. Wythes, Ch. App. 562. 1 K. & J. 186. The tendency of the modern decisions where companies have contracted to perform certain works, and have got the whole benefit of the agreement is to struggle with any amount of difficulties in order to compel specific performance ( Wilson v. Furness Railway Company, 9 L. R. Eq. 33); hence it has been held to be no defence to a bill for specific performance, by a private individual against a railway company that, the public would be subjected to inconvenience if the company were compelled specifically to perform their See Raphael v. Thames Valley Rail contract with such individual. way Company, 2 L. R, Ch. App. 147, there the plaintiff, a landowner, had withdrawn his opposition to a railway bill, in consideration of the company agreeing to make a road and an approach in a
(
(

build or to make a road in such cases is, that when the plaintiff, by reason of his having parted with bis land to the defendant, has no opportunity of erecting the buildings at bis own cost, and so ascertaining the amount of damages sustained by reason of the non-

The company altered the level of their line, particular manner. and varied the course and inclination of the road. The bill was filed pending the works, and a motion for an injunction had been
ordered to stand to the hearing,, on the company undertaking to It abide by the direction of the Court as to, altering their works. was held by Lord Chancellor Chelmsford, reversing the decision of Lord Romilly, M. R. (2 L. R. Eq. 37), that the plaintiff was enset titled to specific performance; and that the company could not up the inconvenience to the public by the interference with the See also traffic, as a reason for not performing their agreement. Wilson v. Furness Railway Company, 9 L. R. Eq. 28; Attorney-

377

* 938

CUDDEE

V.

BUTTER.

v. Mid-Kent Railway Company and South Eastern RailCh. App. 100. way Company, Nor was a Railway Company which had agreed to make a car riage road between certain points, on land conveyed to them by the plaintiffs, and to make and maintain a wharf for loading and discharging vessels at a specified place, allowed to set up the defence that the contract was ultra vires, or that the company was incorporated for making a railway, and not a public road ( Wilson v. Ftirnes's Railway Company, 9 L. R. Eq. 28, 33), and where they had

General

3LK

only partially fulfilled the agreement to set up as a defence the Statute of Limitations (lb.), or that the Attorney-General was a necessary party, because, where an agreement is with an individual, it is he, and not the Attorney General, on behalf of the public has a right to call for its performance, although the work to be done is (lb. 34. for the benefit of the public. Where, however, more perfect and complete justice can * by an award of damages, the Court will not de[ *93S ] be done See Wilson cree specific performance of such contracts. v. Northampton and Banbury Junction Railway Company, 9 L. R. There a Railway Company agreed for valuable conCh. App. 279. sideration with a landowner, to erect, construct, and fit up a station on certain lands, which they had bought from him. The agreement contained no further description of the station, nor any stipulations The company having refused to erect a station as to the use of it. in the specified place, and substituted one at a distance of two miles, it was held by the Court of Appeal in Chancery, affirming the decision of Sir James Bacon, V.-C, that justice could be better done by an inquiry in chambers as to damages, than by a decree for " In the case of damages," said Lord Selspecific performance. borne, L. G, "the plaintiff will be entitled to the benefit of such presumptions as, according to the rules of law, are made in courts both of law and equity against persons who are wrongdoers in the sense of refusing to perform, and not performing their agreements. We know it to be an established maxim, that in assessing damagep, every reasonable presumption may be made as to the benefit which the other parties might have obtained by the bona fide performance On the same principle, no doubt, in the celeof the agreement. brated case of the diamond which had disappeared from its setting, and was not forthcoming, a great judge directed the jury to presume that the cavity had contained the most valuable stone which could I do not say that that analogy is to be possibly have been but there. followed here to the letter; the principle is to be reasonably applied, So applying it to the according to the circumstances of each case. circumstances of the present case, it appears to me that a jury might, with perfect propriety, take into account the probable benefit which the plaintiff's estate might have derived from the existence of a stopping-place on the line, to which traffic might have been attracted, or which might have been convenient to the persons resi-

378

CUDDEE

V.

RUTTER.

939

They might take into account the reasondent upon that estate. able probability that if the company had bona fide performed the agreement, they would have made the station in a reasonable manner as regards the mode of construction and the extent of accommodation; and they might also take into account the reasonable probability, that if the company had made the station, they would, in their own interest, have thought it worth while to make a reaAll those are elements, no doubt, more or less sonable use of it. of an indefinite character, but proper for the consideration of a jury on the question of damages, and proper for * the consideration of this Court, when it discharges the [ * 939 function of a jury." Whether the principles laid down, though somewhat generally, by Lord Selborne, for the measure of damages, have been acted upon in a satisfactory manner, at common law, admits of doubt. In the recent case of Wigsell v. School for the Indigent Blind, 8 Q. B. D. 357; the grantees of certain land covenanted with the grantor, to build a brick wall seven feet high abutting on land of grantor. The grantees committed a breach of the covenant by refusing to build the wall. When the case was argued before Kelly, C. B., and Huddleston, B., the Lord Chief Baron expressed a very decided opinion that the damages in point of principle, would be the amount which it would cost to erect the wall. It was held however by the Court of Queen's Bench, Field and Case, JJ., that as it appeared in the events that had happened, that the value of the adjoining land of the plaintiff's was not decreased by the non-erection of the wall to anything like the amount it would have cost to build the wall, the true measure of damages was the pecuniary amount of the difference between the position of the plaintiffs upon the breach of the contract and what it would have been if the contract had been performed and that, under the circumstances of the case, the amount that it would cost to build the wall was not the correct measure of damages. See also Jones v. Gooday, 8 M. & W. 146; Oldenshaiv v. Holt, 12 Ad. & Ell. 590. The opinion expressed by the Lord Chief Baron appears to be the most consistent with equity, and it is submitted that it ought to be carried out in those cases where, when such specific performance of a similar contract is sought in an action, damages are given in the alternative as a more convenient mode of relief.
|

Of contracts for partnership.^ It seems that as a general rule Courts of equity Avill not decree a specific performance of an agreement to enter into and carry on a partnership: (per Sir G. M. Giffard, V.-C, in Scott v. Eayment, 7 L. R. Eq. 112, and see Sichel v. Mosenthall, 30 Beav. 371.) A fortiori it will not do so where the Bole relief sought is the pavment of a sum of money: Bagncll v. Edwards, 10 Ir. R. Eq. 215'. There are, however, some very limited exceptions to the rule,
379

* 940

CUDDEE

V.

RUTTER.

such for instance as the Court going the length of decreeing the execution of a deed of partnership: Scott v. Rayment, (7 L. R. Eq. 115.) In cases where it was essential to the ends of justice that the status of the parties should be ascertained, determined, and fixed; and there has been a part performance of the contract to * 940 ] enter into partnership for a fixed * and definite term, the [ Court will decree specific performance thereof (Anttn., 2 Ves. 629; England v. Curling, 8 Beav. 129; Hibbert v. Hibbert, Coll. on Partnership, p. 133); but it will not do so when the amount of capital and the mode by which it is to be provided is undefined (Downs v. Collins, 6 Hare, 418, 437); nor will it do so when no term has been fixed for the duration of the partnership, for such a decree would be useless when either of the parties might dissolve the partnership immediately afterwards: Hercy v. Birch, 9 Yes. 357; and see Sheffield Gas Consumers' Company v. Harrison, 17 Beav. 294; New Brunswick Company v. Muggeridge, 4 Drew. 698. It has, however, been suggested by Mr. Swanston in his learned note to Crawshay v. Maule, 1 Swanst. 513, that in many cases, although the partnership could be immediately dissolved, the performance of the agreement, like the execution of a lease, after the expiration of the term (see Nesbitt v. Meyer, 1 Swanst. 226), might be important as investing the party with legal rights for which he

had contracted. For a decree made on a bill for a specific performance of an agreement for a partnership at will (in consideration of a sum of money), and which was determined by the defendant's answer, see Syres v.
Syers, 1 App. Cas. 174, 192, 193, 194. It is clear, moreover, that the Court will not interfere on behalf of parties claiming under contracts of partnership which are illegal as being in contravention of the laws regulating trade or otherwise (Knowtes v. Haughton, 11 Ves. 168; Hughes v. Statham, 4B.&C. 187), or tainted with fraud, hardship, or improper conduct: Vivers

Tuck, 1 Moo. P. C. C. (N. S.) 516; Maxwell v. Port Tenant, &c, Co., 24 Beav. 495. Nor will the Court interfere where the contract of partnership has reference to the manufacture and sale of a medicine the recipe of which is secret, for in such case the Court would have no means of enforcing its own orders: Newbery v. James, 2 Mer. 446. Upon the principle applicable to a partnership determinable at will the Court will not decree specific performance of a contract to grant a lease, when a lease, if granted, might be determined at once for the breach of a covenant which the plaintiff had already broken: Jones v. Jones. 12 Ves. 188. The Court has refused to grant specific performance of an agree ment for a tenancy from year to year, upon the ground apparently that the remedy at law was adequate: Clayton v. Illingworth, 10
v.

Coal

Hare, 451.

380

CUDDEE

V.

RUTTER.

*941

Of contracts of hiring and service.] Again, as contracts of hiring and service are of a confidential character, and cannot therefore * be enforced against an unwilling party witb any [ * 941 ] hope of ultimate success, courts of equity, although a difBro. P. C. ferent opinion was formerly entertained {Ball v. Cngg*. It Toml.Ed.; East India Company v. Vincent, 2 Atk. 83), now re(Johnson v. Shrewsfuse to decree specific performance of them: bury and Birmingham Railway Company, 3 De G. Mac. & G. 91 1: Homey. The London and North Western Railway Company, LOW. R. (V.-C. W.) 170; Pickering v. L7.s/,oy> o/AV.//. 'J V. &0. C. C. 249; Stocker v. Brocklebank, 3 Mac. & G. "250; Brett v. The East India. and London Shipping Company, Limited, 2 H. & M. 404, L2 \V. R. (V.-C. W.) 596; Mair v. Himalaya Tea Company, 1 L. R. Eq. 411,) [If one employs another for an agreed period, and discharges him before the time has expired, the latter may recover damages for this breach of the contract: Fowler v. Armour, 24 Ala. 194; Nations v. Oudd, 22 Texas, 550: East Tenn. R. R. Co. v. Staub, 7 Lea, 397.] more especially as in such cases, no Court of Justice can interfere so long as there is no property, the right to which is taken away from the person complaining: Rigbyy. Connol, 14 Ch. D. 478. See also Gillis v. M'Ghe-e, 13 Ir. Ch. R. 48, 57; White v. Boby, 26 W.
1

i,

133.

specific performance of a contract of agency will not be enThus in Chinnock v. Sainsbury, 30 L. J. N. S. forced in equity. (Ch.) 409, auctioneers advanced a sum of money to J. S., who agreed to put a miscellaneous collection of property into their hands for sale, from the proceeds of which they were to retain the money advanced. A part only of the property was delivered and J. S. refused to sold, but it realised less than the sum advanced. part with the remainder of his collection, and upon demurrer to a bill for a specific performance of the agreement, it was held by Sir J. Romilly, M. R., that the Court would not compel the performance of a contract of agency; that J. S., if he satisfied the claims of his agents, was at liberty to countermand the sale of his property; that the advance of money to J. S. was not made on the security of the property mentioned in the contract; and that the claims of the agent must be determined in a Court of Law, and the demurrer

The

was allowed.
the same principle the Court has refused to enforce a conemploy a shipping broker: Brett v. East India and London Shipping Company Limited, 2 H. & M. 401.
tract to

Upon

The Court will not decree specific performance of a contact for the sale of the goodwill of a business unconnected with the premises where the business is carried on (Baxter v. Conolly, 1 J. & YV. 576; Bozon v. Farlow, 1 Mer. 459, 474; Costake v. Till, 1 Rep. 376); but where the goodwill is altogether or principally annexed to the premises, a contract for the sale of the goodwill and premises may be enforced in equity: (Cruttwell v. Lye, 17 Ves. 335; Shackle
381

942
v.

CUDDEE

V.

RUTTER.

Baker, 14 Ves. 468; Chissum v. Dewes, 5 Russ. 29; Darbey v. Whitaker, 4 Drew. 134, 139, 140), * the goodwill which is the subject of the sale being nothing more than the probability' that the old customers will resort to the same place: Cruttwell v. Lye, 17 Ves. 346; and see Mummery v. Paul, 1 C. B. 316, 326; Potter v. Commissioners of Revenue, 10 Ex. 147; Allison
[

* 942

Monktcearmouth, 4 Ell. & Bl. 13. at one time it was doubtful whether a contract for the sale of the business of an attorney was legal (see Candler v. Candler, Jac. 231; Bozon v. Farloiv, 1 Mer. 459; Thornbury v. Bevill, 1 Y. & C. C. C. 554; Gilfillan v. Henderson, 2 C. & F. 1), it seems now that it is held valid at law (Bunn v. Guy, 4 East 190), and will be enforced in equity: Whittaker v. Howe, 3 Beav. 383; Aubin v. Holt, 2 K. & J. 66. It seems to be doubtful whether there can be a decree for specific performance of a contract to sell a medical practice: see May v. Thompson, 20 Ch. D. 705; but in that case there were other grounds for refusing specific performance. A contract providing for the future separation of husband and wife being against public policy will not be enforced by the Court, even if it be containod in an instrument providing for an immediate separation, but looking forward to the event of the parties living
v.

And although

together again, and to a future separation: Westmeath v. Salisbury, 5 Bli. N. S. 366, 367 Earl of Westmeath v. Countess of Westmeath, [It has been decided by the highest authority that agreeJac. 142. ments for the future separation of husband and wife and invalid, and will not be specifically enforced: Perry on Trusts, 672; Hill on Trustees, 668-669. Yet if such agreements have been entered into and executed, Courts will enforce the specific performance of the provisions in favor of the wife: Wells v. Stout, 9 Cal. 494; Albee v. Wyman, 10 Gray, 222; Calkins v. Long, 22 Barb. 97; Mer cein v. People, 25 Wend. 77; Mansfield v. Mansfield, Wright (Ohio), 284; McCrocklin v. McCrocklin, 2 B. Mon. 370; Sterling v. SterBaker v. Barney, 8 Johns. 72.] ling, 12 Ga. 201 A Court of equity will however compel specific performance of agreements for the present separation between husband and wife, by decreeing the executioD of proper deeds of separation, provided there be a good consideration to support the contract: Wilson v. Wilson, 1 Ho. Lo. Ca. 538; Fletcher v. Fletcher, 2 Cox, 99; Gibbs v. Harding, 8 L. R. Eq. 490; 5 L. R. Ch. App. 336; Bucknell v. Bucknell, 7 Ir. Ch. Rep. 130. With regard to the parties to such contracts, it seems at one time to have been supposed that a contract by a husband with his wife to live separate and apart from her, was not such as could be enf jrced by the Court and that the intervention of trustees was necessary (Hope v. Hope, 22 Beav. 351; 8 De G. Mac. & G. 731; Wilkes The law v. Wilkes, 2 Dick. 791; Walrond v. Walrond, Johns. 18). now appears to be as laid down by Jessel, M. R., that as a wife has
;
;

382

CUDDEE

V.

RUTTER.

* 944

a clear right to institute a suit for restitution of conjugal rights for separation or divorce, it follows as a necessary corollary to the right to sue by herself that she must have the right to contract noi to sue and that therefore a woman can contract to live Beparate and apart from her husband, and that contract, like all other contracts, if not

against public policy, is one which may be upheld and enforced: Besant v. * Wood, 12 Ch. D. 622. See also Vansit- [*943 ] tart v. Van&ittart, 4 K. & J. 62; Nicholl v. Jones, 3 L. R. Eq. 696; Gibbs v. Harding, 5 L. R. Ch. App. 336; 8 L. R. Eq. 490. It has been held that a covenant by trustees to indemnify the husband against the wife's debts (Stephens v. Olive, 2 Bro. C. C. 90
;

Earlof Westmeathv. Countess of West meat h, J ac. 126,141; Eiworthy v. Bird, 2 S. & S. 372) though it be conditional on an annuity which was agreed to be paid being secured (Wellesley v. Wellesley, L0 Sim. 256), or even a covenant by a third person to pay the husband's
1 Ho. Lo. Ca. 538; 5 Ho Lo. Ca. 40.) of a suit in the Ecclesiastical Court for nullity of marriage against her husband on the ground of impotency (Wilson v. Wilson, 14 Sim. 405, 1 Ho. Lo. Ca. 538), or her acceptance of maintenance from her husband instead of proceeding against him by a divorce a mensd et thoro (Hobbs v. Hull, 1 Cox, 445), has

debts-

Wilson

v.

Wilson,

The staying by the wife

So an agreement been held a good consideration as against him. between a husband and the father of the wife, that the husband and wife should live apart, and that the husband should execute a deed of separation containing all usual and proper clauses, and securing an annuity for the maintenance of his wife and child, and that the expense of the agreement and deed should be borne equally by the husband and the father, was decreed to be specifically performed And Gibbs v. Harding, 8 L. R. Eq. 490; 5 L. R. Ch. App. 336. the Court would also compel the husband by injunction, pursuant to his covenant, not personally to molest his wife: (Sanders v. Rodway, 22 L. J. (N. S. ),Ch. 230,) although it seems doubtful whether it would have restrained proceedings in a suit for a restitution of conjugal rights: Wilkes v. Wilkes, 2 Dick. 791; Vansittart v. VanBut sittart, 4 K. & J. 62; Hope v. Hope, 8 De G. Mac. & G. 731. see now the Judicature Act, 1873, s. 24, sub- sect. 5. See also the notes to Eyre v. Countess of Shaftesbury, and Stapilton v. Stapilton, vol.
:

ii,

post.

Court of equity will direct specific performance of an agreement Thus, if an assignor of a lease has paid or covenant to indemnify. rents and laid out monies, which the assignee had covenanted to indemnify him against, the Court will direct payment to be made to the assignor on account of such breaches of covenant with costs Lloyd v. Dimmack, 7 Ch. D. 39S, and see Pemberx. Mathers, 1 Bro. C. C. 53; London and South Western Raihvay Co. v. Humphrey, 6 W. R. 784. But the Court will not, it seems, make a general declai'ation of the assignor's rights to indemnity, with liberty to apply from time to time in case of a future breach * Lloyd [ * 944 ]
:
:

383

* 945
v.

CUDDEE

V.

RUTTER.

Dimmack, 7 Ch. D. 398; disapproving of Ranelaugh v. Hayes, 1 Vera. 189, where that course was adopted, and see Anglo -Australian, &a, Co. v. British Provident Society, 3 Giff. 521; 4 De G. F. & Jo.
341.

A Court of equity will not decree the specific performance of a covenant (Price v. Williams, cited 6 Ves. 8 18 Street v. Rigby, 6 Ves. 815; Wilks v. Davis, 3 Mer. 507; Gervais v. Edwards, 2 Dr. & W. 80), or execution of a bond (South Wales Raihcay Co. v. Wythes, 5 De G. Mac. & G. 880) to refer disputes to arbitration, and a plea of an agreement to refer to arbitration has been held not to constitute a valid objection to a bill either for discovery only or for discovery and relief (Wellington \. Mackintosh, 2 Atk. 569; Street v. Rigby, 6 Ves. 815, overruling Halfhide v. Penning, 2 Bro. C. C. 330; Dimsdale v. Robertson, 2 J. & Lat. 58, 91; but see and consider The S. C, British Empire Shipping Company v. Somes, 3 K. & J. 433 nom. Somes v. The British Empire Shipping Company, 8 Ho. Lo. Ca. 338) although before the bill was filed arbitrators were appointed, and since the bill was filed the submission had been made a rule of Court (Cooke v. Cooke, 4 L. R. Eq. 77); nor could the Court substitute the Master for the arbitrators, "for this," observed Sir J. Leach, "would be to bind the parties contrary to their agreement:" Agar v. Macklew, 2 Sim. & Stu. 418. But it seems to be doubtful, if the agreement to submit to arbitration contains also a covenant not to take proceedings at law or in equity, whether, in that case, the submission may not be pleaded in bar of proceedings in any superior Court; Halfhide v. Penning, 2 Bro. C. C. 336; 2 Dick. 702; Dimsdale v. Robertson, 2 J. & Lat. 58, 91; and see Cooke v Cooke, 4 L. R. Eq. 77. Under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125) "Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them, or any of them, shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless, commence any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them, in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which action or suit is brought, or a judge thereof, on application by the defendant or defendants, or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists, * 945 ] why such * matters cannot be or ought not to be referred [ to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing of such action or suit, and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings
;

384

CUDDEE
in finch action or suit,

V.

RUTTER.

* 910

on such terms as to costs or otherwise as to (Sect. 11.) such Court or Judge may seem fit." The construction which Courts both of law and equity have put on the clause seems to have been that whenever the agreement to refer covers tlie question which the action raises, the matter should be referred: Willesford v. Watson. 14 L. R. Eq. 572, 577; lb., 8 L. R. Ch. App. 472. The result is the same where the agreement is to refer all disputes to a foreign Court, which has been held tj be within the 11th section of the Common Law Procedure Act, 1854, (17 & 18 Vict. c. 125): Law v. Garrett, 8 Ch. D. 26. But, where the matters in dispute are not within the agreement for arbitration, the motion to stay proceedings will be refused: Piercy v. Young, 14 Ch. D. 200. The question whether the matters in dispute are within the agreefor arbitration, is one which the Court will decide, and will not leave to the arbitrator (Piercy v. Young, 14 Ch. D. 200); unless the provisions of the agreement to refer to arbitration, are so wide that they include not only the construction of the document itself, but also the question whether the acts complained of were or were not within the terms of the matters referred to arbitration: Piercy v. Young, 14 Ch. D. 208; Willesford v. Watson, 8 L. R. Ch. App. 473. In cases of actual fraud the Court refuses to interfere on two grounds: First, because when personal fraud is in issue the case is properly one of publicity, and for a jury; and, secondly, because the parties to a contract can hardly be supposed to have endeavoured to refer to a conventional tribunal any attempt by one of them to cheat See also Witt the other: Willesford v. Watson, 14 L. R.*Eq. 578. "\. Corcoran, 8 L. R. Ch. App. 476 n. The effect of sect 11, subject to the last mentioned exception, is that if since the passing of the Common Law Procedure Act, parties choose to determine for themselves that they will have a forum of their own selection instead of resorting to the ordinary Courts, a ]))/' in a facie duty is cast upon the Courts to act upon such arrangement: Law v. Garrett, 8 Ch. D. 37; Willesford v. Watson, 8 L. R. Ch. App. 478; Gillett v. Thornton, 19 L. R. Eq. 599,604, 606; Newtan v. Taylor, 19 L. R. Eq. 14. * With regard to the question, as to what constitutes a [ * 946

ment

on special grounds for refusing the stay of proceedings to which a defendant is prima facie entitled, it seems to be wholly immaterial that the Court of Chancery might be a cheaper, quicker, or more competent tribunal than the conventional one: Willesford v. Watson, 14 L. R. Eq. 578. Nor is the fact of there being no appeal from the arbitrator, any ground for staying proceedings, for it may be easily conceived that sensible men may prefer an arbitrator even to being at liberty to carry one another through litigious proceedings in three successive Courts: Willesford v. Watson, 8 L. R. Ch. App. 481. * 25 WHITK ON KQITITY. 385
sufficient reason

*947

CUDDEE

V.

KUTTER.

Where nothing has come before the Court to show that it was a case for granting an injunction, the mere fact that an arbitrator cannot grant one, will form no just ground for staying proceedings, inasmuch as if the arbitrator said that anything was not to be done, and there being liberty to apply to the Court, the Court would then grant the injunction (Willesford v. Watson, 8 L. R. Ch. App. 480); but if there was an immediate cause for granting an injunction, that would be an extremely good reason for not sending the matter to arbitration: lb. Law v. Garrett, 8 Ch. D. 26, 37. The case is, no doubt, different where the suit, that it is desired to stay, seeks for a receiver, which is an intervention of this Court for the purpose, not of determining anything between the parties, but of keeping things intact while the dispute is being determined; for in such case, although the proceedings are stayed upon motion, the Court may either then appoint a receiver (Plewsv. Baker, 16 L. R. Eq. 564), or at some subsequent time should circumstances arise, showing the appointment to be proper: Gillett v. Thornton, 19 L. R. Eq. 606. It seems, moreover, that such special intervention as a ne exeat, or an injunction answering the same purpose as a receiver does, that is, of keeping matters in statu quo, would have the same effect: Willesford v. Watson, 14 L. R. Eq. 578; 8 L. R. Ch. App. 473. Probably on an analogous ground the Court might refuse to stay a suit which sought rectification, since the power of rectifying is one which cannot be delegated. Secus, where the case for rectification, if there be one, is the case of the defendants, who apply for the stay, and not that of the plaintiffs, who resist it: Willesford v. Watson, 14 See also Plexus v. Baker, 16 L. R. Eq. 579; 8 L. R. Ch. App. 473. L. R. Eq. 564; Gillett v. Thornton, 19 L. R, Eq. 599. Although the language of the 11th section is somewhat obscure, it has been decided that there is no condition precedent to [*947] an * order for staying proceedings, that every defendant must before the suit began, have been willing and still continue willing to concur in going to arbitration (Willesford x. Watson, H L. R. Ch. App. 473); unless perhaps the Court saw that the thing could not be effected without the concurrence of somebody else w ho would not concur, which would be a sufficient reason why the matter should not be sent to arbitration, per James, L. J., (lb. 481); and it seems to be doubtful whether a trustee in the liquidation of one of two partners, who has entered into an agreement for arbitration, v. is entitled to make an application to stay proceedings: Piercy
;

Young, 14 Ch. D. 200. The Court ought to be satisfied by affidavit, at the time when the motion is heard, of the readiness and willingness of the defendants to refer to arbitration Piercy v. Young, 14 Ch. D. 209. A general agreement to submit to arbitration, cannot be revoked, although there was no agreement that the submission to arbitration should be made a rule of Court: Piercy v. Young, 14 Ch. D. 200;
:

386

CUDDKE
Christie

V.

RUTTER.

* 948

26

See also Moffat v. Cornelius, v. Noble, 14 Ch. D. 203, n. R. 914. And, where an action has been referred to an arbitrator by the Chancery Division, it is not necessary to make the award a rule of Court before an order can be made founded on the award: Jones v. Wedgewood, 19 Ch. D. 56; In re Forrest, lb. n; Jones v. Jones, 14 Ch. D. 593. Where there is a contract for a sale at a price to be determined upon by certain persons as valuers, the Court, unless the price be fixed in the manner determined upon, so as to be made part of the agreement, will not ordinarily decree specific performance thereof Milnes v. Gertj, 14 Ves. 400; Wilkes v. Davis, 3 Mer. 507; Vickers Vickers, 4 L. R. Eq. 529; Collins v. Collins, 20 Beav. 306; v.

W.

Richardson v. Smith, 5 L. R. Ch. App. 648, and it is immaterial whether the price has not been ascertained, in consequence of the failure of the nomination of the valuers, or if, when appointed, they do not make their award, or one of the parties will not allow his valuer to proceed (lb.), the Court refusing to act, because the u The Court has adopted this principle contract is not complete. from the civil law as stated in the Code of Justinian, who seems to have taken pride in having decided a point which he said was a

namely,

knotty point, and had occasioned great controversy among lawyers if a given man is to name the price, whether that is to be considered as equivalent to the arbitrium boni viri. The Emperor Justinian determined that if Titus be unable or unwilling to declare the price, the sale is null:" per Sir W. Page Wood, V.-C. in Vickers v. Vickers, 4 L. *R. Eq. 535; and [ * 948 ] see Inst. 3, 24, 1 Cod. 4, 38, 1 5. Where the agreement which has been rendered impossible of performance by the death of the arbitrator, is an agreement which has been substituted for a former one, not dependent upon the award of the arbitrator, the Court of Equity, at any rate where there has been a part-performance, may make a decree for performance of the original agreement: Firth v. Midland Bail way
;

Company, 20 L. R. Eq.

100.

^'here, however, the vendor refuses to allow a valuer to enter into his house for the purpose of making a valuation, the Court will make a mandatory order to compel the vendor to allow him to enter, and to enable the valuation to proceed: Smith v. Peters, 20 See also Morse v. Merest, 6 Mad-. 26. L. R. Eq. 511. Where the fixing a value by arbitrators is not of the essence of an agreement, the Court will carry the agreement into effect, and will, itself, if necessary, ascertain the value; Dinham v. Bradford, An 5 L. R. Ch. App. 519; Jackson v. Jackson, 1 Sm. & G. 184. inequitable refusal, however, of a plaintiff to submit to arbitration according to contract, may disentitle him to relief in equity, upon the principle that he who seeks equitv must do equity: Cheslyn v.

Dalby, 2 Y.

&

C. Exch. Ca. 170.

387

* 9-49

CUDDEE

V.

RUTTER.

is to

will decree specific performance of an award, where it do anything in specie, as to convey an estate or assign securities (Norton v. Mascall, 2 Vera. 24; Hall v. Hardy, 3 P. Wms. 187; Walters v. Morgan, 2 Cox, 369), but not, it seems, an award to pay money: Hall v. Hardy, 3 P. Wms. 189, note. The Court thus exercises jurisdiction, "because," to use Lord Eldon's languarge, "the award supposes an agreement between the parties, and contains no more than the terms of that agreement

The Court

ascertained by a third person:" Wood v. Griffith, 1 Swanst. 54. See, also, Nickels v. Hancock, 7 De G. Mac. & G. 300. The fact that an award had been made a rule of a Court of Common Law, has been held to be no valid obstacle to its being specifically enforced in equity (Hawksworth v. Brammall, 5 My. & C. 281; Wood v. Griffith, 1 Swanst. 43), though it would be to a suit to set

R. 121. aside: Auriol v. Smith, T. The Court will not ordinarily admit, as an objection to an action to carry out an award, that it is unreasonable; "for it is a general rule in cases of awards, that the arbitrators being judges of the parties' own choosing, they cannot therefore object against the
it

&

award as an unreasonable judgment, or

Medcdlfe
[ v.

* 949

as a judgment against law." Medcalfe, 1 Atk. 64, per Lord Hardwicke, C, and see Wood v. Griffith, 1 Swanst. 43. *See, however, the observations of Turner L. J., in Nickels v. Hancock, 7

De

G. Mac. & G. 325. Where, however, the award is uncertain (Wakefield v. Llanelly Railway and Dock Company, 3 De G. J. & S. 11) or is in excess of the authority given to the arbitrators (Nickels v. Hancock, 7 De G. Mac. & G. 300), or defective, by reason of its being made on part merely, and not upon the whole of the matters submitted to them (lb., and see, Wakefield v. Llanelly Railway and Dock Company, 3 De G. J. & S. 11) the Court will not interpose. But a party cannot object that an award is defective, if under a submission of all matters in difference, any are omitted which were not brought before them by the parties complaining Hawksicorth v. Brammall, 5 My. & C. 281. The right of a person to have specific performance of an award being the same as if the award had been an agreement between the parties, and the Court will not decree specific performance of an award in a case where, if the award had been an agreement, specific See Blackett v. Bates, 1 L. performance would have been refused. there, by an award made in June, 1863, under a R. Ch. App. 117 reference at Nisi Prius, the arbitrator awarded that the defendant
:

should execute to the plaintiff a lease of the right to use such part of a certain railway made by the plaintiff as was upon the land of the defendant, the lease to" be made in the words set out in the award and that the defendant should have a right of running carriages on the whole line on certain terms, and might require the plaintiff to supply engine power, while the plaintiff should have an
;

388

CUDDEE
;

V.

RUTTER.

* 950

and that the plaintiff should during the term engine on the railway The lease did Dot provide keep the whole railway in good repair. The plaintiff applied for those privileges awarded to the defendant. at law to set aside the award, and ultimately in April, L864, the apIn July, 1864, the plaintiff filed his bill for plication was refused. It was held by Lord Cranspecific performance of the award. icorlh, C, reversing the decree of Sir W. Page Wood, Y. (.'. i'l H. & M. 270), that specific performance could not be decreed, inas much as the provisions in favour of the defendant could not be enforced at once, but gave thedefendant a right to havecertain duties continuously performed by the plaintiff for a number of years, and "If," said his Lord the Court could not see to such performance. ship, "the arbitrator, instead of awarding that the plaintiff should do certain acts, had awarded that the lease to be executed should contain covenants by the plaintiff to do them, the case would Lave The Court would stood on an entirely different footing. not then have been * called upon to enforce, either di- [ * 950 rectly or indirectly, the doing of those acts, but merely to decree the execution of a lease containing certain covenants, a kind of relief, which is clearly within the jurisdiction of the Court, and
]

open

to

no objection.
the

principle where the submission to arbitration is character, as whether from its unreasonableness, unfairness, or imprudence, the Court would not specifically enforce, this will prevent its interference in respect of the award founded Nickels v. Hancock, 7 Be G. Mac. & G. 300. thereon And the jurisdiction of Courts of Equity to decree specific performance of awards was not ousted by the 17th section of the Com-

Upon

same

such as iu

its

mon Law Procedure Act, 1854 (17 & 18 Vict. c. 125) Blackett v. And see Dart, V. & P. 224, 5th edit. Bates, 1 L. R. Ch. App. 117. As to agreements referred to official referee, see Supreme Court of Judicature Act, 1884 (47 & 48 Yict. c. 61), ss. 912.
:

"Where a person has entered into a contract for valuable consideration not to do a thing, specific performance of such negative contract will be enforced by an injunction restraining him from doing anything in conThus a Court of Equity has restrained parties travention of it. from ringing a bell {Martin v. Nutkin, 2 P. Wins. 206), carrying on a trade of which the goodwill has been sold (Barret v. Blagrave, 5 Ves. 555; S. C, 6 Ves. 104: Williams v. Williams, 2 Swanst. 25:!: 3 Mer. 157; and see Shackle v. Baker 14 Yes. 468; Cruttwell v.
3.

Specific

performance compelled by injunction.]

Lye, 17 Ves. 335; Newbery v. James, 2 Mer. 446; Harrison v. Gardner, 2 Madd. 198), affixing or permitting any out ward mark or show of business to bo affixed to demised premises {Evans v. Dan's, .10 Ch. D. 747), and the purchaser on the voluntary sale of a goodwill or business has a right to restrain the vendor from setting up or continuing the identical business which he contracted to sell, but

389

* 951

CUDDEE

V.

RUTTER.

has no right, in the absence of express stipulation, to restrain him from setting up a similar business in the same neighbourhood or elsewhere (Labouchere v. Dawson, 13 L. R. Eq. 322), or from deal ing with the old customers (Leggott v. Barrett, 15 Ch. D. 306; disapproving of Ginesi v. Cooper & Co., 14 Ch. D. 596; and see Walker v. Motiram, 19 Ch. D. 355; Churton v. Douglass, Johns. 174; Johnson v. Helleley, 2 De G. J. & S. 446), but he can restrain him from soliciting the customers of the old business to cease dealing with the purchaser, or to give their custom to himself Labouchere v. Dawson, 13 L. R. Eq. 322; Cruttwell v. Lye, 17 Ves. 335; Leggott v. Barrett, 15 Ch. D. 306; disapproving of Ginesi v. Cooper & Co., 14 Ch. D. 596 * 951 ] *Where, however, the sale of a goodwill is compulsory, [ as on the bankruptcy or liquidation of the owner thereof, the purchaser of the goodwill from the trustee in bankruptcy, or liquidation, has no right either to restrain the bankrupt or liquidating debtor from setting up bond fide a fresh business, and soliciting the customers of his former business, and it is immaterial whether be has or has not joined in the conveyance of the goodwill to the purchaser: Walker v. Mottram, 19 Ch. D. 355; Cruttwell v. Lye, 17 Ves. 335. So the Court has restrained the sale of certain specified classes of goods in contravention of an exclusive right to sell such goods conferred upon another ('Altman v. Royal Aquarium Society, 3 Ch. D. 228; Donnell v. Bennett, 22 Ch. D. 835), acting on the stage (Anon., 6 Sim. 351, cited, Lumley v. Wagner, 1 De G. Mac. & G. 604; Montague v. Flockton, 16 L. R. Eq. 189), carrying on a particular trade in a certain place or district (Clements v. Welles, 1 L. See, also, R. Eq. 200; Clarkson v. Edge, 12 W. R. (M. R.) 518. Fielden v. Slater, 7 L. R. Eq. 523; Jones v. Bone, 9 L. R. Eq. 6/4; Carter v. Williams, Lb. 678; Fairclough v. Marshall, 4 Ex. D. 37; Bramwell v. Lacy, 10 Ch. D. 691), even in the case of an assignee with notice (Richards v. Revitt, 7 Ch. D. 224; and see Tulk\. Moxhay, 2 Ph. 774; Wilson v. Hart, 2 H. & M. 551; 1 L. R. Ch. App. 463; Luker v. Dennis, 7 Ch. D. 227, overruling Keppell v. Bailey, 2 My. & K. 517), and in the case of an infant if he represented himself to be of full age (Cornwall v.' Hawkins, 41 L. J. (N. S.) 435), erecting buildings (Rankin v. Huskisson, 4 Sim. 13; Lord Manners v. Johnson, 1 Ch. D. 673), or buildings above a certain height (Lloyd v. London, Chatham and Dover Railway Company. 2 De G. Jo. & Sm. 568; Boives v. Law, 9 L. R. Eq. 636), or making applications to parliament ( Ware v. Grand Junction Waterworks 'ompany, 2 Russ. & My. 470, 483; Hcathcote v. North Staffordshire Railway Company, 2 Mac. & G. 100; Lancaster and Carlisle Railway Company v. North Western Railway Company, 2 K. & J. 293; see also note to The Earl of Oxford's Case, Vol. 2, and cases there See Taylor cited), contrary to an agreement not to do such acts. v. Davis, 3 Beav. 388 n.
:

390

CUDDEE

V.

RUTTER.

* 952

And where
is

in a contract for the sale of chattels not specific, there

an express negative stipulation not to sell to anyone else, the Court will grant an injunction to restrain the breach of the negative stipulation, although the contract was one of which specific performance would not have been granted. See Donnell \. Bennett, 22 Ch.D. 835; there the plaintiff a manure manufacturer, agreed to purchase from Cormack all fish nut used by him in his busi* 952 ness * as lish-curer at so much per ton for two years, during which period Cormack further agreed not to sell Cormack never delivered any fish fish to any other manufacturer. to the plaintiff, but he had done so under a subsecpaent contract to Upon an action by the plaintiff against the defendant, Bennett. Bennett and Cormack, the Court granted an injunction to restrain Cormack from selling any fish to Bennet or any other manufacturer except the plaintiff, and to restrain Bennett from buying any fish from Cormack. Upon the same principle a railway company has been restrained from allowing, contrary to its contract with a landowner, any of its ordinary or fast trains, other than mail, express, or special trains, to pass a station without staying there for the purpose of taking up and setting down passengers: Hood v. North Eastern Railway Company, 8 L. R. Eq. 666; 5 L. R. Ch. App. 525. See, also, Rigby v. The Great Western Railway Company, 15 L. J. (N. S.) 266; 2 Ph. 44. See, also, Phillips v. Great Western' Railway Company, 7 L. R. Ch. App. 409. But the Court will not by injunction compel the doing of something which involves continuous employment for an indefinite period. See Powell Duffryn Steam Coal Company v. Taff Vale Railway Co., 9 L. R. Ch. App. 331. There the plaintiffs had power to run engines and carriages over part of the defendants* line of railway, under the powers of the Railway Clauses Consolidation Act, 1845, (s. 92.) The defendants refused to allow the plaintiffs to exercise this power. AVhereupon the plaintiffs filed a bill, praying for an injunction to restrain the defendants from interfering with their use of the railway. It was held by the Lords Justices, affirming the decision of Sir Charles Hall, V.-C, that the Bill should be dismissed without costs. "True it is," said Lord Justice James, " that under the 76th and 92nd sections of the Railways Clauses Consolidation Act, the plaintiffs appear to have the right given to them of using this railway with their engines, but, as pointed oat by Yice-Chaneellor Wickens, and afterwards by ViceChancellor Hall, it is impossible for them to exercise that right without danger, unless there is a continuous use of the signals and
[

by the defendants' own people. Now it is, I think, impossible to say that a company ought to be compelled by this Court to trust its points and signals, upon which so much of the safety of mankind now depends, to any other persons than its own pointsmen and its own signalmen. If, therefore, relief is given to
of the points

391

* 954 the plaintiffs,

to

CUDDEE

V.

RUTTER.

it must in substance involve ordering the defendants work the points and signals. But it is not the practice * to compel by injunction either a company [ * 953 ] of this Court or an individual to do a continuous act which requires the The Court will in a proper case continuous employment of people. restrain a man from singing at one theatre, but it will not undertake to compel him to sing at another; it may restrain him from writing a book for one publisher, but it cannot compel him to write Where what is required is not merely to rea book for another. strain a party from doing an act of wrong, but to oblige him to do some continuous act involving labour and care, the Court has never found its way to do this by injunction." Nor will a Court of Equity grant an injunction restraining the doinc of an act contrary to a stipulation which is merely ancillary to an agreement of which the Court cannot compel the specific performance {Merchants' Trading Company v. Banner, 12 L. JR. Eq. 18) or from doing an act contrary to an agreement, when the plaintiff himself has already broken part of the same agreement which he seeks to enforce. See Telegraph Despatch and Intelligence ComCh. App. 658; Fechter v. Montgomery, 33 pany v. M'Lean,-8 L.

Beav. 22.
to the extension, of the jurisdiction of equity in matters of performance by the legislature conferring power to aicard damages in certain cases.~] Although the Court of Chancery has in former times giving damages estimated by an issue quantum damnificatus, where it refused to decree specific performance ( City of London v. Nash, 3 Atk. 512, and see Cleaton v. Gower, Rep. t. Finch, 164), it afterwards disclaimed such jurisdiction, although it would give compensation, no doubt somewhat similar to damages (Phelps v. Prothero, 7 De G. Mac. & Gr. 734), in many cases where it could decree specific performance the compensation being given in consequence of the vendor not having the same interest in the estate as he has contracted to sell, or there is some deficiency in the quanSee Todd v. Gee, 17 Ves. 278; Jenkins v. tity or quality thereof. Parkinson, 2 My. & K. 514; Seton v. Slade, vol. 2, post, and note. The jurisdiction of the Court of Chancery with regard to damages, in addition to, or substitution for an injunction and specific performance was much enlarged by the Chancery Amendment Act, 21 & 22 Vict. c. 27 (Lord Cairns' Act), which took effect from and after It enacts that in all cases in which the the 1st of November, 1858. Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against the commission or continuance of any * any cov* 954 [ ] wrongful act, or for the specific performance of
4.

As

specific

it shall be lawful for the to award damages to the party injured, either in addition to or in substitution for such injunction or

enant, contract, or agreement,

if
it

same Court,

shall think

fit,

392

CUDDEE
specific

V.

RUTTER.

955

performance, and such damages

may be

assessed in such

(Sect. 2.) Subsequent sections shall direct. provide the machinery for the assessment of damages and the trial of questions of fact either by a jury before the Court itself, or by

manner as the Court

the Court alone (sects. 3, 4, 5), or for the assessment of damages by a jury before any judge of one of the superior courts of common law, at Nisi Prius, or before the sheriff of any county or city.
(Sect. 0.)
is not retrospective Wicks v. Hunt, Johns. 372, discretionary (Durell v. Pritchard, L. R. Ch. A pp. 244), does not extend the jurisdiction of the Court to cases where there was a plain common law remedy, and where the Court would not have interfered either by way of injunction or specific perform(lb.) ance before the passing of the Act. The Court, therefore, could not under the Act award damages save in cases where it had jurisdiction to decree specific performance, and in addition to or substitution for that remedy. Hence it has been decided that as a Court of equity had no jurisdiction to compel specific performance of an agreement to borrow a sum of money, it could not award compensation or damages against a person who had refused to accept a loan of money for which he had contracted. Rogers v. Chall is, 27 Beav. 175. So as the Court would not compel specific performance of an agency contract, it could not grant damages for the breach of such contract: Chinnock v.' Sainsbury, 30 L. J. N. S. Ch. 409. So where a plaintiff filed a bill praying specific performance of a contract by a company to allot shares to him, and, in the alternative if all the shares had been allotted to other persons, for damages, as it appeared that all the shares had been allotted before the bill was filed, it was held that a specific performance, not being possible when the bill was filed, no damages could be granted: Ferguson v. Wilson, 2 L. R. Ch. App. 77. See also Howe v. Hunt, 31 Beav. 420; Franklinski v. Ball, 33 Beav. 5G0; Hilton v. Tipper, 16 W. R. 888: Lewers v. The Earl of Shaftesbury, 2 L. R. Eq. 270. For a plaintiff will not be entitled to damages if he has done any act which would disentitle him to specific performance: Collins v. Stutely, 7 W. R. (M. R.) 710. See also, Scott v. Rayment, 7 L. R. Eq. 112. Where the Court, however, has jurisdiction to grant specific performance, it may grant specific performance of part of the contract and award damages for * non-performance of part [ * 955 ] of the contract, in respect of which it could not have compelled specific performance. Thus, iu Soames v. Edge, Johns. 669, the plaintiff agreed to grant a lease to the defendant when, and so soon as he, the defendant, should have built a new house on the land; and the defendant agreed to accept such lease when required, and by a certain day to pull down an old house then standing on. the land, and build a new one on the site. The defendant who was previously in the occupation of the premises, in pursuance and part
|

This Act, which

380),

and

is

393

* 956

CUDDEE

V.

RUTTER.

performance of the agreement, caused the old house to be pulled down, and sold the materials and continued in possession, and paid part of the rent which accrued due, but did not proceed to build a new house upon the old site. It was held by Sir W. Page Wood, Y.-C, on demurrer to a bill praying specific performance and damages, that Lord Cairns' Act applied, and that the plaintiff was entitled to damages for the non-building of the house, and to specific performance of the contract to accept the lease. See also Mayor dud Corporation of London v. Southgate, 17 W. R. 197; Samuda v. Li iii-ford, 4 Griff. 42; Norris v. Jackson, 1 J. & H. 319. In other cases although a Court has jurisdiction to compel specific performance of a contract, it will award damages in substitution thereof. See Wilson v. Northampton and Banbury Junction Railway Company, 9 L. R. Ch. App. 279. There a railway company agreed for valuable consideration with a landowner to erect and construct, and fit up a station on certain lands which they had bought from him; the agreement contained no further description of the station, nor any stipulations as to the use of it. The company having refused to erect a station in the specified place, and substituted one at the distance of two miles, it was held by the Court of Ap peal, affirming the decisions of Bacon, V.-C, that this case was one in which justice could be better done by an inquiry as to damages than by a decree for specific performance. Where the plaintiff, when he commenced his suit, was entitled to specific performance, and also to damages for the delay in performance, and before the suit could be brought before the Court, the defendants performed the contract, it was held that the plaintiff was nevertheless right in bringing his suit to a hearing, and was entitled to damages Cory v. The Thames Ironworks and Shipbuilding Co., 11 W. R. 589; 6'. C, 3 L. R. Q. B. 181. So damages will be given in addition to specific performance cf an agreement for a lease, in respect of the delay which was caused by the defendant's wilful refusal to perform his contract, and the consequent [*956 ] loss of * profit to the plaintiff: JaquesY. Millar, 6 Ch. D. 153, overruled on another point by Marshall v. Berridge, 19 Ch. D. 233; and see Wesley v. Walker, 26 W. R. 368. The Court, however, has no jurisdiction under Lord Cairns' Act, upon motion in a cause, after a decree for specific performance of a covenant, to add an order for assessing damages for a breach of the covenant, as such an order would be a supplemental decree upon facts which had subsequently occurred: Corporation of Hythe v. East, 1 L. R. Eq. 620. And it seems that after a decree for specific performance of an agreement, against a purchaser unable to complete, the plaintiff cannot at the same time obtain an order to rescind the agreement, and claim damages against the defendant for the breach thereof: Henty v. Schroder, 12 Ch. D. 666, where the form of order in Foligno
1

394

CUDDEE
v.

V.

RUTTER.

* 957

Martin, 16 Beav. 586; Sweet v. Meredith, 4 Giflf. 207; and Wat son v. Cox, 15 L. 11. Eq. 219, were not followed. The Act was however applicable to cases where the damage sustained by the plaintiff was only nominal, as well as in cases where he was entitled to substantial damages. See buyers v. Collyer, 28 Ch. D. 103; there a building estate was laid out in lots which were sold by the owners of the estate to different purchasers, each of whom covenanted with the vendors and with the purchasers of the other lots entitled to the benefit of the covenant, not to build a shop on his land, or to use his house as a shop, or to carry on any trade The purchaser of one of the lots, who occupied his house therein. as a privato residence, brought an action against the purchaser of another lot, who was using his house as a beer-shop with an " offlicence," to restrain him from breaking his covenant and for damThe plaintiff had known for three years before the action ages. was commenced, that the defendant was using his house as a beer There was some shop, and had himself bought beer at the shop. evidence that some of the houses built on other lots had been for some time used as shops notwithstanding the covenant, and that some of the houses near the plaintiff's house were occupied, not It each by a single tenant, but by two families at weekly rents. having been held by Pearson, J. (24 Ch. 180), that in consequence of the change of condition of the neighbourhood, he ought not, under the doctrine of Duke of Bedford v. Trustees of British Museum, 2 My. & K. 552, to grant the injunction, the character of the neighbourhood having been changed, but that the Court having a discretion under Lord Cairns'' Act to grant damages, instead of an injunction, and being of opinion that the plaintiff had sustained no substantial damage dismissed the action alto* gether. The Court of Appeal, however, in dismissing the [* 957 ] appeal held that the change in the character of the neighbourhood was not in itself a ground for refusing relief to the plaintiff, as the change teas not caused by his conduct ; but the plaintiff had lost the right to enforce his covenant either by injunction or damages through his acquiescence in the proceedings of the defendAnd the Court was clearly of opinion that Lord Cairns' Act ant, was applicable to cases where the damage sustained by the plaintiff

was nominal as well as where it was substantial. Lord Cairns' Act has been repealed, being included in the Schedules to The Statute Law Reversion and Civil Procedure Act, 1883 Act contains words preserving the ( L6 & 47 Vict. c. 49), but that

By sect. 5, it jurisdiction of the Courtj notwithstanding the repeal. is enacted, that " (b) any jurisdiction, or principle, or rule of law or equity, established or confirmed, or right, or privilege acquired, or duty or liability imposed, or incurred, or compensation secured by or under any enactment repealed by the Act, shall not be affected by Per Baggallay, L. J., in Sayers v. Collyer, the repeal by this Act."
28 Ch. D. 107.

395

* 95S

CUDDEE

V.

RUTTER.

It is not, however, now necessary to have recourse to Lord Cairns' Act, for it is clear that the Court has power to give damages as an Before Lord Cairns' Act was passed a plaintiff alternative relief. who wished to enforce a covenant (a restrictive one for instance) had two remedies; he might come into a Court of Equity for an injunction to restrain an infringement of his right, or he might have recourse to a Court of Common Law to obtain damages, and Lord Cairns' Act gives the Courts of Equity the power of giving a plaintiff

damages by way of alternative relief. But since the Judicature Acts each division of the Court has full power apart from Lord Cairn*' Act to give either an injunction or damages: per Baggallay, L. J., in Sayers v. Collyer, 28 Ch. D. 108. Under Rolfs Act (25 & 20 Vict. c. 42), the Court of Chancery must determine every question of law and fact incident to the relief sought. Rolfs Act, however, has been repealed by the Statute Law Bevision Act, 1883 (46 & 47 Vict. c. 49).
Moreover, the jurisdiction conferred by Lord Cairns' Act, upon the Court of Chancery, and also the powers of granting damages formerly exercisable by the Courts of Common Law, are by the Judicature Act, 1873 (36 & 37 Vict. c. 66), vested in the High Court of Justice (sects. 16 & 76), and it is by s. 24 enacted that, "the High Court of Justice, and the Court of Appeal respectively, in the exercise of the jurisdiction vested in them by this Act in every * 958 ] cause or matter pending before them * respectively, shall [ have power to grant and shall grant, either absolutely or on such reasonable terms and conditions as to them shall seem just, all such remedies whatsoever as any of the parties thereto may appear to be entitled in respect of any and every legal or equitable claim properly broughl forward by them respectively in such cause or matter, so that, as far as possible, all matters so in controversy between the said parties respectively, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of

such matters avoided." (Sub-s. 7). Since the passing of this Act, although the case may not be one for specific performance, as for instance, by reasou of the vendors not being able to make oui a good title, damages may be decreed (Boivutmi v. Hyland, 8 Ch. D. 588), and the vendor will not be able to rescind under the usual condition, where he altogether fails to make any title whatever. (lb.) So also where specific performance is refused on the sole ground of a mistake by the defendant, so that under the old practice the bill would be dismissed without prejudice to an action for damages, the Chancery Division will proceed to consider the question of damages: Tamplin v. James, 15 Ch. D. 215. But it has been recently held that where there is an action for specific performance of a contract for sale, with an alternative claim for damages where the claim for specific performance fails through the plaintiffs own act, as by the

396

CUDDEE
resale of the property

V.

RUTTER.

959

plaintiff, the alternative claim for damCase, D. 356. It may be here mentioned, that under the Judicature Act, 1873, (36 & 37 Vict. c. 66), s. 34, all causes and matters for the specific performance of contracts betiveen vendors and purchasers of real es tates, including contracts for leases, are assigned to the Chancery

by the

ages

fails:

Hipgrave

v.

Division of the High Court of Justice. The causes or matters expressly assigned to the Chancery Division with regard to the specific performance of contracts is only of a limited character, and other cases having that object in view, not falling within the 34th section of the Judicature Act, may be commenced in any Division of the High Court, subject to the exercise

power of transfer. Another division of the High Court of Justice may in a proper case transfer a cause in which a question of specific performance arises, See Hitinan v. Mayhetc, 1 Exch. D. 132. to the Chancery Division. There, to an action in the Exchequer Division to recover possession of land, the defendant set up a counter-claim for specific performIt was held by the Court of Excheance of a contract for a lease. quer that, since it appeared on the facts that there was a prima facie case for specific performance, which, under the old practice before the Judicature Act, would have entitled the present defendant on a bill for specific performance to an injunction to restrain the action, and since the question of specific performance could be more conveniently disposed of in the Chancery * Division, [ *959 J This transfer the action ought to be transferred thereto. was under the old Order LI., rules 1 and 2. See new Order XLIX. See also Holloway v. of the Rules of the Supreme Court, 1883.
of the

York, 2 Ex. D. 132. In a subsequent case which arose in the Court of Queen's Bench a transfer to the Court of Chancery was under similar circumstances refused by Field, J., whose decision was affirmed by the Court of Appeal, James, L. J., observed, "I think we should be repealing a great part of the Judicature Act, if we were to -accede to this application. At any rate we should be acting contrary to the principle that each division of the Court is to determine everything which If such a transfer as this arises in a matter which comes before it. were allowed, any defendant might put in a counter-claim for the
specific
fer,

performance of some agreement, and then apply for a transand thus everything might, at the will of the defendant, be brought into the Chancerv Division:" Storey v. Waddle, 4 Q. B. D.
289, 290. It is doubtful, moreover, whether the Court of Appeal has power to make the transfer without the consent of the presidents of both divisions, from and to which the transfer is proposed to be made.
, an equitable right to specific performthe action ance appears incidentally in the course of an ejectment
.

Ib -)
It seems, moreover, that if

..

397

* 960

CUDDEE

V.

RUTTER.

Court, even although there be no counter-claim for specific performance, will take notice thereof Williams v. Snoicden, W. N. 1880 (C. P. D.), p. 124. Lord Cairns' Act remained in force notwithstanding the passing of the Judicature Acts. See Fritz v. Hobson, 14 Ch. D. 542, where damages were claimed in respect of the unreasonable use of a highway, in substitution for an injunction to restrain such wrongful act, commenced before the issue of the writ, and continued afterwards; it was held that if the wrongful act had come to an end before the trial, the Court had jurisdiction under section 3 of Lord Cairns' Act, to assess the whole of the damages accrued. It seems, however, that notwithstanding the Judicature Acts, the jurisdiction under Lord Cairns' Act, can only be exercised in cases where the plaintiff at the time of the issuing of his writ is entitled either to an injunction or specific performance: White v. Boby, 26 W. R. 133. In Chancery the amount of damages was .formerly ascertained by an issue [Ferguson v. Tadman, 1 Sim. 530; Nelson v. Bridges, 2 Beav. 239; Cory v. The Thames Ironivorks and Ship Building Company, 3 L. R. Q. B. 181), now more frequently by an inquiry (2 Seton on Decrees, 1285,4th Ed.; Slack v. Midland Baihcay Co., 16 Ch. D. 81), and sometimes, when practicable, by the * 960] judge himself *at the hearing: Jaques v. Millar, 6 Ch. D. [ 153; Wesley v. Walker, 26 W. E. 368. A plaintiff may, under the Rules of Court, 1875, Order XL. r. 11, move for judgment upon admissions in the pleadings at any stage of the trial, and notwithstanding that he has joined issue on the defence and given notice of trial: Brown v. Pearson, 21 Ch. D. 716. And see now Order XXXII. of the Rules of the Supreme Court, 1883, rule 6. The legislature has recently given facilities fcr the completion of a contract after the death of the purchaser by the 4th section of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which applies only to cases after the commencement of the Act, (viz., from and after the 31st of December, 1881); it enacts that (1) Where at the death of any person there is subsisting a contract enforceable against his heir or devisee for sale of the fee simple or other freehold interest descendible to his heirs-general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in him at bis death, in any manner proper for giving effect to the contract. A conveyance made under this section shall not affect (2 ) the beneficial rights of any person claiming under any testamentary disposition or as heir or next to kin of a testator or intestate. See Conveyancing Acts by Wolst. and Turn. 3rd ed. pp. 23 and 24. After a decree for specific performance of any contract concerning lands, the Court under sect. 30 of the Trustee Act, 1850 (13 & 14 Vict. c. 60) may declare any of the parties trustees of such lands
:

398

CUDDEE

V.

RUTTER.

960

or any part thereof, and thereupon make such order as to their estates, rights and interests as it may make concerning the estates, For vesting orders under the Trus rights and interest of trustees. tee Act, 1850, s. 30, see 1 Seton, Dec. pp. 528 530, and Sect. II., (ii.) Form 5, p. 1305, 4th ed. It was held in one case that a vesting order could not be made under this section in the case of an agree ment to grant a lease: Grace v. Baynton, 25 W. K. 500. But such decrees were made in Hodgson v. Bower, and Howell v. Palmer,
1

Seton on Decrees, 4th ed. Form 7, pp. 529, 530, and in the recent case of Hale v. Hale, W. N. Aug. 9, 1884, p. 185, where a defendant had refused after a decree for specific performance to execute a lease of certain premises, Kay, J., made an order declaring the defendant a trustee within the meaning of sect. 30 of the Trustee Act, 1850, and for the appointment of a person to execute a lease thereof to the plaintiff in place of the defendant. For vesting orders in Chambers, see In re Tweedy, W. N., 21 Jan.,. 1883, p. 10.
[Doctrine of Specific Performances of Agreements relating to Personal Property Restated. The jurisdiction for compelling performance of a contract, involves the consideration of what is technically called specific performance. In equity, wherever a special remedy is sought in addition to the ordinary one of pecuniary damages, a valuable consideration is always requisite. As a general rule equity will not decree specific performances of agreements relating to personalty, owing to the fact that compensation by way of damages is usually sufficient. Cases may however arise in which damages will not afford a sufficient remedy; as a contract for the sale of shares of stocks in a particular company, or for the delivery of goods which the vendor alone can supply. Where the contract concerning personalty amounts to a trust, its performance will be specifically enforced regardless of the nature the particular property: Johnson v. Brooks, 93 N. Y. 337; Cowles v. Whitman, 10 Conn. 121. Relief incases of personalty has also been frequently applied where articles which have a peculiar value, have been tortiously withheld.]

399

* 961

PUSEY

V.

PUSEY.

* 961

* PUSEY

v.

PUSEY.

Be

Term.

S.

Mich. 20th November, 1684.

[reported 1 VERN. 273.]

[Reg. Lib. 1684, B., fol. 310.]
Specific Delivery up of Chattels.]
horn.

Land held by the tenure of

Bill brought by the heir for the horn.

Bill was, that a horn, which, time out of mind, had gone along with the plaintiff's estate, and was delivered to his ancestors in ancient time to hold their land by, might be delivered to him; upon which

horn was
land
part,
(e).

this inscription, viz., pecote

this'

horn

to

hold huy thy

as to part, and demurred as to the other and the demurrer was, that the plaintiff did not by his bill pretend to be entitled to this horn either as executor or devisee nor had he in his bill charged it to be an heir-loome. The demurrer was overruled, because the defendant had not fully answered all the particular charges in the bill, and was ordered to

The defendant answered

pay
if

costs.

And

the

Lord Keeper Guildford was

to the

of opinion, that

the land was held by the tenure of a horn or cornage, the heir

would be well entitled

(e)

horn at law.

Vide

1 Inst.

107

a.

still

Camden, speaking of the manor of Pusey, says, "the family of Pnsey hold it bv a horn anciently given to their ancestors by Canute, the Danish (Camb. Brit. Perks, p. 203, ed. 1607). Dr. Hicks gives the inscripking." "I Kynd Knowd geve Wyllyam tion as follows (see Thes. Prsef, p. xxv.): Pecote Thys home to hold by thy lond." The name "Pecote," however, seems to be a mistake, and should be written "Pewse." The real inscription runs thus "Kyng Knowd geve Wyllyam Pewse This home to hold by thy lond." Archseologia, vol. 3, p. 13, 14.

400

DUKE OF SOMERSET

V.

COOKSON.

* 963

*DUKE OF SOMERSET
De
Term.
S.

v.

COOKSON".

*962]

Mich. 1735.
p.

[reported 3

wms. 389.]

[2 Eq. Ca. Abr. 1G4,

pi

28.]

Sphcific Delivery up of Chattels.]

bill lies to

compel the delivery

of an altar-piece, or other curiosity in specie.

The Duke

of Somerset,

as lord of the

manor

of Coibridge, in

Northumberland (part of the estate of the Piprcys, late earls of Northumberland), was entitled to an old altar-piece made of silver, remarkable for a Greek inscription, and dedication to Hercules. His Grace became entitled to it as treasure-trove within his said
manor.
of

This altar-pieco had been sold by ono who had got tho possession a goldsmith at Newcastle, but who had it, to the defendant,

notice of the Duke's claim thereto.

The Duke brought

in a bill in equity, to

compel the delivery of

bill,

this altar piece in specie undcfaced.

tiff

Tho defendant demurred as to part of the had his remedy at law, by an action of
to bring his bill in equity; that
bill

for that the plain-

trover or detinue, aDd

ought not

savouring of tho realty a

it was true for writings would lie, but not for anything merely So personal (/) any more than it would lie for a horse or a cow. a bill might lie for an heir loom, as in tho caso of Pusey v. Pusey, 1 Vert). 273; and, though in trover tho plaintiff could have only

damages, yet

in detinue, tho
if

thing

itself, if it

can bo found,

is to

be

recovered; and

such

bills as

the present were to be allowed, half

the actions of trover would bo turned into bills in Chancery.

On the
* for,

other side,

it

was matter

of curiosity

was urged, that the thing here sued and antiquity; and though
bo recovered, yet
it

*9G3]

at law, only tho intrinsic value is to

would be very hard that ono who comes by such a piece of antiquity
Cudd v. Rutter. 1 P. Wms. 570 ( f ) Colt v. Netterville, 2 P. Wins. 304.
;;

ante, p.

007, noui.

Cuddee
401

v.

Rutter

26

WHITE

ON'

EQUITY.

* 964

DUKE OF SOMERSET

V.

COOKSON.

it may be as a trespasser, should have it in his power keep the thing, paying only the intrinsic value of it: which is like a trespasser's forcing tho right owner to part with a curiosity or matter of antiquity, or ornament, nolens volens. Besides, the bill is to prevent tho defendant from defacing the altar-piece, which

by wrong, or

to

is

one way of depreciating

it

it;

and the defacing may be with an

in-

tention that

may

not be known, by taking out or erasing some of

it;

the marks and figures of

and though the answer had denied the

defacing of the altar-piece, yet such answer could not help the

demurrer; that in
the

itself,

nothing can be more reasonable than that

compelled to
defective in

man who by wrong detains my property, should be restore it to mo again in specie; and the law being

this particular, such defect is properly supplied in equity.

Wherefore it was prayed that the demurrer might be overruled, and it was overruled accordingly [by Lord Chancellor Talbot.~\

Since the decision in the cases of Pusey v. Pusey, and The Duke of Somerset v. Cookson, it has always been admitted, as undoubtedly within the jurisdiction of a court of equity, specifically to compel the delivery up of heir-looms, or chattels of peculiar value to the owner, although the heir- looms or chattels, if they could be found, might be recovered in an action of detinue, or their value in an The ground of the jurisdiction is the same as action of trover. that upon which the specific performance of an agreement is enforced -viz., that the specific thing is tho object, and damages will not afford an adequate compensation. " The Pusey horn, the patera of the Duko of Somerset, were things of that sort of value that a jury might not give twopence beyond che weight. It was not to be cast to the estimation of people who have not those feelings. In all cases where tho ibject of the suit is not liable to a compensation by damages, it would * 98-1 ] be strange if the law of this country did not * sifford any [ remedy. It would be great injustice if an individual cannot have his property without being liable to the estimate of people who have not his feelings upon it." Per Lord Loughborough, C.,in Fells v. Read, 3 Ves. 71. The principal case3 have been followed by others of a similar character, having relation, one to a tobacco box of a club (Fells v. Read, 3 Ves. 70), another to Masonic dresses and ornaments (Lloyd v. Loaring, Ves. 773), another to a box of jewels (Saville v. Tailored, 1 Ves. 101, Belt's Supp. 70; S. C, 3 Swanst, 141, n.), another to a cherrystone very finely engraved (Pearne v. Lisle. Amb. 77), another to an extraordinary wrought piece of plate (lb.), and another to a valuable picture: Lowther v. Lord Lowther, 13 Ves. 95;

402

DUKE OF SOMERSET
and see Nutbroivn

V.

COOKSON.

* 965

Thornton, 10 Ves. 163; Lady Arundel I v. v. Phipps, 10 Ves. 139; Falckc v. Gray, 4 Drew. 051; Claringbould Uolroyd v. Marshall, 10 Ho. Lo. Ca. 209. v. Curtis, 21 L. J. (Ch.) 541 The reason for the interposition of the Court is still stronger when the chattel in question is an heirloom, see Earl of Macclesfield v. Davis, 3 V. & 13. 10, where a bill was tiled for the delivery up of an Lord iron chest, containing certain articles said to be heir-looms. FAdon said, " It is now too late, since the case of Fells v. Read, following the case of Pusey v. Pusey, to discuss whether this Court
;

will interfere for the specific delivery of a chattel;

and

if

it

will in

such case a

heir-looms must bo decreed, upon which there never was any doubt." But a court of equity would not have decreed the specific delivery up of a chattel whero adequate damages could be ascertained and [As a general tho payment thereof enforced by an action at law.
fortiori the restitution of

rule equity wili not decree specific performance of contracts relating to personal property for the reason that compensation by way of

damages is ordinarily sufficient. It has however been held that tho mere "circumstance that the bill seeks performance of a contract which relates to personalty, does not render it demurable: Carpenter v. Mutual Safety Ins. Co., 4 Sand. Ch. 408; McGarvey v. Hall, 28 Cal. 140; Herbert v. Mutual Life Ins. Co. to 8 Sawyer C. Ct. 198;
Berger, 2 Barb. 608; Mechanics' Bank v. Seton, Peters, Thus, although the Court had jurisdiction to order the do299.] livery up to an artist of a picture painted by himself as having a special value, the legal remedy being inadequate, nevertheless where by tho terms of an agreement and the frame of the pleadings the plaintiff, an artist seeking restitution of a picture, had in effect put a fixed price upon it, it was held that damages would bo en adequate remedy, and that there was no jurisdiction io a court of equity
Phillips
v.

to interfere:

Doivling v. Betjemann, 2 J. & H. 544. interposition: however, of courts of equity was not confined to those cases in which the articles sought were of some peculiar or intrinsic value, if there subsisted any fiduciary relation between the) parties. Thus in Wood v. Roiccliffe, 2 Ph. 383, where a bill had

Tho

been filed against an agent for the delivery up of furniture and household effects, deposited by tho plaintiff with him, and to restrain him from parting with them, as he threatened to do, '''965 for the defendant, who demurred for want [ ] it was argued of equity, that household furniture and effects were not chattels of such a peculiar or valuable nature as to bo within tho rule, and that all the cases in which the specific delivery up of chattels had been decreed were put upon their peculiar and valuIt was held by Lord Cottenham, C, affirming the deable nature. cision of Wigram,Y.-C, reported (3 Hare, 304), that the right to be protected in the use or beneficial enjoyment of property in specie is not confined to articles possessing any peculiar or intrinsic value, " Tb.9 cases," observed his Lordship, " which have been referred to,
"

:::

403

* 966

DUKE OF SOMERSET

V.

COOKSON.

are not the only class of cases in which this Court will entertain a For where a fiduciary resuit for delivery up of specific chattels. lation subsists between tbe parties, whether it be the case of an agent, or a trustee, or a broker, or whether the subject-matter be stock or cargoes, or chattels of whatever description, the Court will interfere to prevent a sale, either by the party intrusted with the goods, or by a person claiming under him, through an alleged abuse of power. And see Lingen v. Simpson, 1 S. & S. GOO; Poo ley
v.
v.
v. Clayton, 1 K. & J. 462; Edwards [If the contractor duty concerning peisonal Clay, 28 Beav. 145. property amounts to a trust, the performance of such a duty will bo specifically enforced regardless of what the nature of the particular property may be: Jobnson v. Brooks, 03 N. Y. 337; Cowles v. Whitman, 10 Conn. 121.] As to tho jurisdiction of Courts of equity to decreo specific performance of contracts for the purchase of chattels: see ante, p. 915 gig. [Bills were frequently entertained in the Southern States for the specific delivery of domestic slaves: Yound v. Burton, 1 McMul. Eq. 255; Sarter v. Gordon, 2 Hill Ch. 121; Summers ^u. Bean, 13Grat. 404; Fry on Specific Performance (2nd Am. Ed.), 55.] A court of equity proceeding upon the same principle as in cases of chattels of peculiar value, entertains jurisdiction to decree a specific delivery up of deeds or writings to the persons legally entitled to them. See Brown v. Brown, 1 Dick. 02; Armitage v. Wadsivorth, 1 Madd. 192; Reeves x. Reeves, 9 Mod. 128; Tanner v. Wise, 3 P. Wms. 296; Harrison v. Souihcoie, 1 Atk. 528: Ford v. Peering,

Budd, 14 Beav. 34; Pollard

1 Ves. jun. 71; Papilion v. Voice, 2 P. Wms. 478; Duncombe v. Mayer, 8 Ves. 320; Knye v. Moore, 1 S. & S. 61 Freeman v. Fairlie 3 Mer. 30; Grey v. Cockeril, 2 Atk. 114; The Duchess of Newcastle v. Pelham, 3 Bro. P. C. 460, Toml. ed.; Recce v. Trye, 1 Do Gex & Sm. 273; Lady Beresford v. Driver, 14 Beav. 387; 16 Beav. 134; Tudor's L. C. Real Prop. p. 88, 3rd cd., and cases there cited. In Jackson v. Butler, 2 Atk. 306, where mortgage deeds, delivered to a person for the purpose of receiving the principle and interest due on tho mortgage, and pawned by him, were decreed to be delivered up by the pawnee, Lord Hardwicke observing, that the plaintiff might have had an action of trover, but then he could only have damages for the detaining, but not the deeds themselves and therefore he was right in bringing a bill in equity for the recovery of [Sometimes tho detention of chattels cannot bo adehis deeds. quately redressed by damages and in such cases tbe jurisdiction of equity attaches: True v. Houghton, 6 Col. 318; Ferguson v. Paschall, 11 Mo. 267; Treas v. Commercial Co., 23 Cal. 390; Fall's Appeal, 91 Pa. St. 437: Boss v. R. R., 1 Woolw. 26; Ashe v. Johnson,
;

2 Jones' Eq. 149; Todd

v.

Abb
[

(N. Y.) Pr.

R.N.

Taft, 7 Allen, 371; S. 300.

White

v.

Schuyler,

*966

* And it has been held that there is nothing in the character or nature of the certificate of registry of a ship which

404

DUKE OF SOMERSET

V.

COOKSON.

* 9G7

excludes it from the jurisdiction of tho Court to decree its delivery us against a party unlawfully detaining it: Gibson v. Ingo, G Hare, See also Lynn v. Chaters, 2 Kee. 521; Claringbould v. Cur112. tis, 21 L. J. (Ch.) 541; De Mattos v. Gibson, 4 De G. & J. 270. In a suit to recover specilic chattels, as for instance, deeds, it was not necessary, as in trover, to prove conversion, or resistance to deThis was so at law, but liver them up when sought to bo recovered. in Equity tho Court looked at tbo case made by the defendant; it was not necessary to apply to a defendant before a suit was instituted; but if the defendant said 'if you had applied to me, I should not have contested your claim,' then undoubtedly, he got the costs of it; but if it appeared that an application would have been useless, and that tbo defendant resisted at the hearing, the Court looked at the case exactly in tho same point of view as if that right had been insisted upon beforo tho bill had been hied: Turner v. Letts, 20 Beav. 191. As to tho production and safe custody of title deeds under the

Conveyancing and
41), see lb.
s.

Law

of

Property Act, 1881 (44

&

45

Vict.

c.

9.

common law had conferred upon them under the Procedure Act, 1854 (17 & 18 Vict, c. 125), after judgment in an action of detinue, tho samo jurisdiction to compel tho return of a chattel as the Court of Chancery, but the latter court might enforce its decrees by attachment, whilst tho courts of common law could only enforce restitution under the 78th section Dav's Common Law Procedure Acts, p. of tho Act, by distringas.
The
courts of

Common Law

323, 4th ed. of the Supremo Court, 1883, Order sought to enforce a judgment or order for the recovery of any property, other than land or money by writ of delivery, the Court or a judge may, upon the application of the

But now under the Rules

1.

XLVIII.,

Where

it is

plaintiff, order that execution shall issue for the delivery of the property without giving tho defendant the option of retaining tho property, upon paying the value assessed, if any, and that if tho property cannot be found, and unless the Court or a judge shall otherwise order, tho sheriff shall distrain the defendant by all his lands and chattels in the sheriff's bailiwick, till the defendant deliver the property; or at the option of the plaintiff, that the sheriff causo to bo made of tho defendant's goods tho assessed value, if any of the property. 2. A writ of delivery shall be in the Form No. 10 in Appendix H. and when a writ of delivery is issued, tho plaintiff shall, either * by the same or a separate writ of excution, [ *9G7 ] be entitled to have mado of the defendant's goods, and
;

damages and costs awarded and interest. As to the measure of damages at common law for tho non-delivery of a chattel according to contract, see Cory v. The Thames Iron Works and Ship-building Company, Limited, 3 L. R. Q. B. 181. J05

*96S

FLETCHER

V.

ASIIBURNER.

specific

Belief by [Doctrine of Specific Delivery of Chattels Restated. performance in case of personalty has been frequently applied where articles having a peculiar value have been tortiously In modern times bills have been entertained for the spewithheld. cific recovery of the maps and plans of surveyors which were with-

McGovin v. Remheld from him by a clerk in his employment, ington, 2 Jones, 56; Falke v. Gray, 4 Drewry, G51; Beasley v. Allyn, 15 Phila. 97; of title papers to a foreign estate: Patterson v. Killman, 34 N. J. Eq. 344, and of the evidences of choses in action wrongfully detained from the person who is legally entitled to their custody: Gough v. Crane, 3 Md. Ch. 119. Equity will enforce specific performance of contracts which relate to personalty where damages in money cannot be ascertained.]

* 968]

*FLETCHER

v.

ASIIBURNER.

June, 1779.
[reported 1 bro.
Conversion.]
c. c.

497.]
it

Where a real estate

and
by his and
will
all

is

ordered to be sold,

becomes

personalty,

shall go accordingly.

burgage houses and and the survivor, and the heirs, executors, and administrators of such survivor, in trust to sell so much as should be sufficient to pay his

John

Fletcher,

devised

his

free rents in Kendal,

his personal estate, to trustees

debts,

and then
life, if

to

permit his wife Agnes to enjoy the residue dur-

ing her

she so long continued his chasto widow, and after

sell

her decease, to

and dispose

thereof,

and the money arising

each to the

thereby, after deducting charges, and half-a-guinea

trustees for their trouble, to pay to

and between his son William

and daughter Mary, sharo and share alike, provided, that if his wife should happen to marry again, the trustees bhould immediately after the marriage, sell all the estate and effects given to her for her life, and, after such deductions as aforesaid, should pay the remainder of the money to and amongst his wife, his son "William, and daughter Mary, share and share alike, equally; and in case cither his son William or his daughter Mary should die beforo his
40G

FLETCHER
or their legacy should

V.

ASI1I5URNER.

* 9G9

become duo, that tho share or legacy of him

or her so dying should go to the survivor of them.

The testator died, leaving Agues his widow, William his only son and heir-at-law, and Mary his daughter. Agnes, by tho custom of burgage tenure, was entitled to hold tho burgage houses in Kendal during her chaste viduity, against tho disposition of her husband by will.
* 9G9 [ ] mother and brother. "William was twenty-ono at tho death of tho testator, and died without issue, in tho life of the mother died the widow of tho testator. his mother Upon her death a bill was tiled by tho heir-at-law of William, and John the testator, against the trustees and the personal representatives of the testator and of the widow, to havo a conveyanco of tho real estates devised by tho will to tho plaintiff, tho heir-at-

Mary

attained twenty-one, but died unmarried, in tho

life

of her

law.

The representative

of tho

widow, who was tho solo next of kin of

;

William, the son, by answer claimed tho property as personal

al-

leging, that, by the direction to the trustees to sell tho real estates,

they became as personal property, and, as such, were to go to tho

personal representative of William, the son,

who survived his sister. The cause was heard tho 11th December, 1778, where tho first

objection taken was, that the personal representative of William was

not before the Court.

But
tive

Sir

Thomas Sewell, M.

R.,

was
;

of opinion there

wero

suffi-

cient parties to sustain the question

that the personal representathat, if

was a mere formal party

t

and

make

a decree, a personal representative

he thought proper to might bo brought before

tho Master.

Mr. Madocks' and Mr. Wilson further argued, with respect to

tho principal question, that tho real estates devised by tho will wero
still

to

bo considered as real estates, and to go to tho

;

real,

not to

the personal, representative

that

it

was

clear tho intention of tho

it

testator that the estate should remain, and, whilst

did

so,

was

to

be enjoyed by one person

the purpose of a division
;

and he directed

it

to be sold merely for

that, in con-equence of tho death of tho daughter no division was to be made, and Ihereforo Iho reason for the directions ceased and, from thenceforth, the son alone becoming entitled, upon the death of his mother, it was to bo considered
;

107

* 071
as land.
[

FLETCHER

V.

ASHBURNER.

* 970

They relied upon tho case of Flanagan v. Flanagan, 8th June, 17G8, before Lord Camden, which * was a devise of real and personal estate to trustees in trust, out

of the personal estate,

and by sale of a sufficient part of the real, to pay debts; the surplus, after payment of debts, to A. A suit was instituted for payment of the debts, and tbo real estates decreed to be sold; part was sold: and afterwards A died, leaving a son and
daughter; the causo was revived against the son: and it being apprehended that sufficient was not sold to pay the debts a further It part of the real estate was sold under the order of tbo Court.
sufficient to

afterwards proved that the money produced by the first sale was pay the debts; the question was, whether tho heir or

It was althe personal representative was entitled to this money. leged by Mr. Wilson, who cited the case, that Lord Camden's de-

termination was, that whatever quality tbo fund then had, such it should retain; and he decreed for tho personal representative. The other case3 mentioned were Cruse v. Barley and Sanson, 3 P. Wms.

and Digby v. Legard, before Lord Bathurst (g). Mr. Kenyan and Mr. Chambre (on behalf of the defendants, the executors of tho widow) contended that tho testator had, by his will, directed the real estate, after the death of his widow, to be sold, and blended with his personal estate, and tho whole to be di20,

vided between his children, or in case either of them should die in Upon the case of Flanagan v. the life of his wife, to tho survivor. Flanagan, it was observed that the Court determined tho produce
of the real estato to be considered as personal, because the Court

had itself directed the sale to be made and tho property to be changed for payment of debts. The cases of Digby v. Legard, and Cruse v. Barley and Sanson, were treated as inapplicable to the
present case, being cases of lapsed devises Diirour v. Motteux, 1 Ves. 320 (h), aud Mallabarv. Mallabar, Cas. t.-Talb. 78, were cited,
:

as decisivo of tho question in favour of the defendants.

*971

Sir Thomas Sewell, M. R, in June, gave his opinion. He observed, that nothing was better established than * this

principle

that

money

directed to be employed in the pur-

chase of land,

to be sold and turned into money, of property into which they are species as that considered are to be

and land directed

(g) (h)

3 P. Wms. 22, note (1). See will of Motteux correctly stated, 1

S.

&

S.,

292, note

(<i).

408

FLETCHER
directed to bo converted
tion is given,
;

V.

ASIIBURNER.

* 972

and

this in

whatever manner the direc-

whether by

will,
;

settlement, or otherwise-

by way of contract, marriage articles, and whether the money is actually de-

posited, or only covenanted to bo paid,

whether tho land

or

is

actually

conveyed, or only agreed to bo conveyed, tho owner of tho fund, or

the contracting parties,

may make land money

money

land.

The

cases established this rulo universally.

ha? arisen, it has arisen from special circumIn tho case of Sweetapple v. Bindon, 2 Vera. 53G, it was determined that a husband was entitled to money to bo laid out in land, as tenant by tho curtesy: and although it is held that a wifo
If

any

difficulty

stances.

is

not entitled to dower in a similar case, yet

it is

allowed that

it is

so held, becauso cases

principle.

have been determined, and not from any

Tho case3 of land to bo turned into money are fewer than those money to bo employed in the purchase of land. Tho principle cases have been where real estates have been directed to be sold, and some part of tho disposition has failed; so that roracof

thing has resulted to the heir-at-law, as in the case of

Fre3)nan, Prec. Ch. 541, and Cruse
20.
v.

Emblyn
P.

v.

Barley and Banson, 3

failed,

Wins.

Theso aro

all

cases

where a deviso has

and the thing

devised has not accrued to the representative or devisee, but to tho

heir-at-law of tho testator.

p^int

The case of Durour v. Motteux, now boforo tho Court; and,

1 Ves. 320, is a strong case to the

if

anything could strengthen tho

so.

general rule, the circumstances of the present case would do

testator has

Tho
dis-

blended tho real and personal estate together, and

posed of them without distinction, for the benefit of his wifo and children. Both real and personal estato are made one fund.

In the case of Durour

Motteux (i), Lord * Hardwicke [*972] made this a principal ground for considering tho whole fund as personal estate; in the present case it might bo uncertain,
v.

till

tho death of tho widow, whether tho estates must not bo abso-

lutely sold; both tho children, indeed, died before her;

but

t-ho

might have married boforo tho death of ono or both. The interests of both the children were vested, subject, as to ono of tho them, to be defeated in case either of them died beforo tho mother. There could bo no election to take the fund as land or money; for, where an estate is directed to bo sold, and tho money divided
(i)

1 Ves. 320.

409

* 973

FLETCHER

V.

ASHBURNER.
to say that

amongst several persons, none has a right

not be sold (k); the question, therefore,
is

any part

shall

merely between the real and personal representatives of the son, whether the personal representative shall take the fund as personal property, according to the
will, or

tho heir-at-law shall take

it,

as

if

no will had been made.

a strong authority that

The

case of

Flanagan

v.

Flanagan

(l), is

it shall be taken as a personal estate, according to tho will. In that case tho testatrix, Sarah Wooley, by will, dated 28th March, 1 749,

gave and devised

tree, in trust, in
it

all

her real and personal estates to Francis Plumfirst

tho

place, out of her personal estate, as far as

would extend, and, in the next place, by sale of her real estate, or

a sufficient part thereof, to raise so

cient to

much money

as should be

suffi-

pay her debts and legacies; and, after, payment thereof, in convey the residue of the real estate which should remain trust to unsold, and pay the produce of such part as should be sold, and all other the residue of her real estates, between her father, James Flanagan, and her brother, Jame3 Flanagan, their heirs, executors, and administrators, equally. A bill was brought by the creditors for sale of the real estate, to supply tho deficiency of the personal estate, for payment of debts, and a decree was made for a sale; and if any of the money to arise by tho sale should remain after payment of the debts and legacies, it was directed to be paid to '' * son, 973 [ ] James Flanagan, the father, and James Flanagan tho equally; and if any estate should remain unsold, tho trustees were directed to convey it to them and their heirs, equally; after the decree, James Flanagan, the son, died leaving a daughter, and a son, born after his death; part of the estate was sold, and
afterwards,

grandson his

James Flanagan, the grandfather, died, leaving heir, and his grandson and granddaughter his

his
sole

next of kin; after tho death of the grandfather, a further part of the ostato was suld, under an apprehension that the produce of the
first

however, that the produce of the

pay tho debts and legacies: it appeared, first salo was sufficient. A bill was afterwards brought by tho son of James Flanagan, tho son, claiming a moiety of tho surplus, as tho real estate of James Flanagan, his grandfather, to whom he was become heir, against tho personal
sale

was

insufficient to

(/.) See also Deeth r. Hale, 2 Moll. 317; Smith v. Claxton, 4 Madd. 493; Chalmerti Bradley,] J. & W. 59; Trower v. Knightley, 6 Madd. 134. (/ See this case cited and explained by Mr. Scott arguendo in Ackroyd . Smiths n. post. See also Steed v. Preece, 18 L. E. Eq. IDG, where it is approved of by Sir G. Jensel, M. E.

410

FLETCHER

V.

ASIIBURNEPw.

* 974

representative of bis grandfather, and against tho daughter of James Flanagan, the son, who claimed a moiety as ono of the next of kin
of her grandfather.

death of the grandfather, was improper.

was objected, that tho second sale, after tho Tho Court determined, decree of tho Court, under tho mado sale, actually second that the improperly made; as considered could Master, not bo tho before tho money ought to that and fraud, no was no practice, that there
It

go to tho personal representative of tho grandfather. Tho case of Digby v. Legard (m), is a different question. Thero tho testatrix (Elizabeth Byerley) directed her real estato to be sold to pay debts

and
time.

legacies,

and gavo tho rcsiduo

to live persons, to bo equally

)

divided between them, ono of Avhom (Lady Cayley

It

died in her

life-

wa9 resolved that tho

at -law.

devise, so far, failed totally,

and

should accruo to tho heir

such, that tho

the testatrix's

Tho languago of tho decrco is benetit of tho deviso to Lady Cayley should accruo to heir-at-law, Mr. Jervoice, who was a lunatic, and

should be paid to his committee, as real estato descended to him. The case of Scudamore v. Scudamore, Prec. Ch. 543, shows, that in
all

cases where tho dispute

is

between representatives, tho heir cr

executor shall have tho fund, according to tho will or

* contract of tho persons who gavo or created it. Thero [*974] was a case of Ogle v. Cook (n), heard 12th February, 1748, which was this: Mr. Oglo mado his will in 1744, and gave his real estato to trustees to sell, and to vest the money in stock, and pay tho interest to his wife during tho widowhood, and after her death, or marriage, to his two daughters equally, except that the eldest

was

to

personal estato in tho same way.

estato to one of the trustees

have 1000/. more than tho other; ho gavo tho residue of his He afterwards conveyed tho real

named

in his will, to

whom ho was con-

siderably indebted, in trust to sell so

to

much

as should bo necessary

of the estate

pay the debt, and as to the residue, in trust for Mrs. Ogle: part was sold, and then Mr. Oglo died. His youngest daughter died in his lifetime. The bill was brought by tho widow and the eldest daughter, against the son who was tho heir, and tho trustees, fo have the residue of the estate sold, and claiming tho share of tho youngest daughter, as personal estato of Mr. Ogle, to
:\ P. YVms. 22 n. See Collins r. Wakeraan, 2 Vcs. jun. G3(i, where Lord LougJiboroutfli says, that he had caused the Reg. Lih. to be examined, and it was found that the point supposed to have been decided by Ogle v. Cook, was in reality left unde-

(m)
(n)

cided.

411

* 975

FLETCHER

V.

ASIIBURNER.
kin.

bo divided between them and the son as his next of

insisted the conveyance to the trustee

The son

was a revocation of the will; and, if not, that the share of the dead daughter was to be considered It was as real estate of Mr. Ogle, and descended to hirn as heir. determined that the conveyance was a revocation only pro tanto, to let in the debt; and that so much of tho estato as remained unsold, should bo sold, and that the money raised, or to bo raised, by salo There of the estate, made part of the personal estato of Mr. Ogle. was another case about tho same time, which is in 1 Ves. 174 {Cunningham v. Moody), where by marriage articles, 500Z. was agreed
to

husband

bo laid out in purchaso of lands, to be settled to tho use of Iho for life, with remainder to trustees to preserve contingent
life,

remainders, with remainder to the wife for

with remainder to

tho children of the marriage, as the husband and wife should appoint; and in default of a joint appointment, as the survivor should

appoint; and in default of any appointment, to the children, to be

* 975

equally divided in * common, in

if

among them;
tail

if

moro than

one, as tenants

general, with cross remainders;

tail

and

but one, to that child in

general; and no appoint-

ment was made.

The

father and

mother being dead, and the

daughter being married, tho trustees paid the 500/. to her and her husband, and they received it as mortey, and executed a release.
a child, which died, and she afterwards died withdaughter of tho settlor, by a second marriage, filed a bill against tho husband, representative of his wife, the daughter by the first marriage, for tho 500Z considering it as land; and it

The daughter had

out issue.

was observed, that she was entitled to tho money, but that the husband of her deceased sister was entitled to the interest during his
as tenant by tho curtesy. In tho present case, William Fletcher, tho son, had the whole beneficial title vested in him as money, subject to his mother's interest She was his sole next of kin, and her perfor life or widowhood. sonal representatives are now entitled to tho estate as money: the
life,

bill

must, therefore, be dismissed without

costs.

In tho judgment of Sir Thomas Seivell in tho principal case, the equitable doctrine of constructive conversion is thus accurately stated, viz.: "that money directed to be employed in the purchaso of land, and land directed to be sold and turned into money, are to be considered as that species of propertv into which they are directed

412

FLETCHER,
to be converted;

V.

ASIIBURNER.

97G

and this, in whatever manner iho direction is given by way of contract, marriage articles, settlement, or otherwise, and whether tho money is actually deposited, or only covenanted to bo paid: whether the land is actually conveyed, or Tho owner of the fund, cr the cononly agreed to bo conveyed. tracting parties, may make land money, or money land: [See Ex parte McBee, 03 N. C. 332; Kaners Gott, 24 Wend. 041; Pratt v. Taliaferro, 3 Leigh, 419; Thomas v. Wood, 1 Md. Ch. 290; Lynn r. Gephart, 27 Md. 503; Collins v. Champ's Heirs, 15 B. Mon. 118; Smith v. McCrary, 3 Iredell, 204; Arnold v. Gilbert, 5 Barb. 190;

whether by

will,

Taylor v. Benham, 5 How. 233; Lorillard v. Coster, 5 Paigo Ch. 172; McClure's Appeal, 22 P. F. Smith, 417; Parkinson's Appeal, 8 Casey, 455.] see Wheldale v. Partridge, 5 Ves. 89(5, where this statement of tho doctrine is repeated and approved of by Lord AlSee 2 Seton Decrees, 910, 4th Ed. vanley, M. R. The doctrino of conversion proceeds upon tho principle, that equity [This is a very important considers what ought to be done as done. maxim and ono which lies at tho foundation of many doctrines of great importance in equity. "When Chancery interposes to compel the performance of an act which lias been covenanted to be performed, it always treats tho subject as if it had been performed at tho time contracted. Tho act which Chancery desires to bo dono is tho samo act as would have existed had it been dono when it was agreed to havo been done." Reeves Dom. Rel. tit. Chancery, 440.] It follows,
therefore, that tho neglect of trustees to perform their duty, either by converting land into money or * money into land,
will not affect tho rights cf others.
[

970]

"Tho forbearance of tho trustees," says Sir J. Jekyll, M. R., "in not doing what it was their office to have done, shall in no sort prejudice tho cestui quo trusts, since at that rato it would bo in tho power of trustees, either by doing or delaying to do their duty, to affect tho right of other persons, which can never be maintained. Wherefore the rule in all such cases is, that what ought to have been done shall be taken as done; and
a rule so powerful
it is

as to alter tho very naturo of things, to

mako

money
v.

and on tho contrary, turn land into money:" Lechmere Earl of Carlisle, 3 P. Wms. 215. See also Scudamorc v. Scv.dahind,

more, Pree. Ch. 543. Tho law of conversion appears to bo the samo in Scotland as in England: Buchanan v. Angus, 4 Macqueen, Ho. Lo. Cas. 374. As to conversion of land for partnership purposes, seo ante, p. 229. [After the partnership liabilities and equities havo been satisiicd tho surplus derived from the sale of real estate will go to tho real and to the personal representative. This is tho general rule throughout tho United States: Foster's Appeal, 21 P. F. Smith, 397; Halo v. Plumer, Ind. 121; Long v. Waring, 25 Ala. 025; Tillinghast r. Champlin, 4 R. I. 173; Shearer v. Shearer, 9S Mass. 107; Dilworth v. Mayheld, 30 Miss. 40.]

413

* 977

FLETCHER

V.

ASHBURNER.

As to the conversion of money into land by contract or ivill.~] Tho authorities shew, that money agreed or directed to bo laid out in land, becomes land so completely, as to acquire all the properties of land; [Converthus it will be considered as real and not personal assets. sion may arise not only under a trust in a will but also under instruvivos: Bispham's Eq. Sec. 309; and see Rose v. Jessup, Suppose, 7 Harris (Pa.), 280; Griffith v. Beecher, 10 Barb. 432.] for instance, A. bequeathed a sum of money to trustees, upon trust to purchase lands, and settle them upon B. and his heirs, or by marriage articles money had been agreed to bo laid out in lands for B. and his heirs, on the death of B., without a purchaso having been made, (he money will bo considered as land: and, therefore, it would not, previously to 3 & 4 Will. 4, c. 104, have been liable to the payment of the debts ol'B. by simple contract: Whiticick v. Jermin, cited in Baden v. Earl of Pembroke, 2 Vern. 5S; Lawrence v. Beverley, cited ib. 55; S. C, 2 Keb. 841; Fulham v. Jones, cited Pulteney v. But it Darlington, 7 Bro. P. C. 530; Foone v. Blount, Cowp. 407. would be bound as real assets by a judgment: Frederick v. AynsHowever, sinco tho passing of 3 Iz, 4 Will. 4, c. combe, 1 Atk. 392. 104, money directed to bo laid out in the purchaso of land will be liable, as other real assets, to tho payment of simple contract debts. Upon tho samo principle, money agreed or directed to bo converted into land, will bo subject to tenancy by tho curtesy; thus in Siveetapple v. Bin don, 2 Vern. 530, whero A. bequeathed 300?. to be laid out in land, and settled to tho uso of her daughter and her children, and if her daughter died without issue, to go over, the husband of tho daughter was held to bo tenant by tho curtesy, although no purAnd see chaso had been made during his wife's lifetime. Cunningham x. Bloody, 1 Ves. 174; Dodson v. Hay, 3 Bro. [ *977 ] C. C. 404; Follett v. Tyrer, 14 Sm. 125. Formerly, inasmuch as by a singular anomaly, a woman was not entitled to dower out of an equitable estate, she was not dowable out of money directed to bo laid out in land (Cunningham v. Moody, Red vido Fletcher v. Crabtree v. Bramble, 3 Atk. 037 1 Ves. 170 Robinson, Prec. Ch. 250; . C, 2 P. Wins. 709, cited; Otway Y.Hudson, 2 Vern. 583; Banks v. Sutton, 2 P. Wins. 700; In re Lord Lismorc, 1 Hog. 177); but now by 3, & 4 Will. 4, c. 105, women married after tho 1st of January, 1834, whose dower has not been barred, will bo dowable out of equitable estates, and it would seem to follow that they will bo dowablo out of money to bo laid out in lands of inheritance. Money agreed or directed to bo laid out in land will pass under a general devise of all the lands of the person entitled to it {GreenPrec. Ch. 320; Guidot v. Guidot, 3 hill v. Greenhill, 2 Vern. 079 Atk. 250; Rashleigh v. Master, 1 Ves. jun. 201; S. C, 3 Bro. C. C. 99; Biddulph v. Biddulph, 12 Ves. 101; Green v. Stephens, 17 Ves.

ments inter

''

77; In re Scarth, 10 Ch. D. 499); or by a devise of "all his lands in a particular country, or elsewhere," although it has been argued,

414

FLETCHER

V.

ASHBURNER.

978
:

that tho testator must have alluded io land, and something local

Lingen v. Sowray, 1 P. Wms. 172. Although a will not coming within tho operation of tho lato "Wills Act (1 Vict. c. 2(5), wouldnot pass lands agreed to bo purchased after its execution (Langford v. Pitt, 2 P. Wms. 020); yet, where money was agreed or directed to bo laid out in the purchase of lands, to bo settled on the testator and his heirs, even if the money wero not laid out in the purchase of lands xvntil after he had made his will, they would i:i equity pass by it under a general devise. See Lingen v. Sowray, But now, lands purchased Eq. Ca. Ab. 175, pi. 5. after the execution of a will may pass by it at law. See 1 Vict. c. 20, g. 24, which enacts, "that every will shall bo construed, with referonco to tho real estate, and personal estate, comprised in it, to speak and take effect as if it had been executed immediately before tho death of tbo testator, unless a contrary iatention shall appear by tho will. Upon tho samo principle, money agreed cr directed to bo laid out in land will not pass as money by a general bequest to a legatee in cxerciso of a power or not; though it will by a particular description, as fo much money to bo laid out in land, or " as so much money left me by tho will of A." Cross v. Addenbrook, cited in tho noto to Lechmere v. Earl of Carlisle, 3 P. Wms. 222 Edwards v. Tlie Countess of Warwick, 2 P. Wms. 171; Gillies v. Longlands, 4 Do G. & Sin. 872; Chandler v. Pocock, 15 Cb. [ * 978 ] D. 491; 10 Ch. D. 048; Cookson v. Cookson, 12 C. & F. 121; In re Greaves' Settlement Trust, 23 Ch. D. 310.[In order to effect a conversion, tho direction to convert in a trust must bo in imperative and in positive language, and in a contract tho agreement must bo binding. See upon this subject generally, Cook v. Cook, 5 C. E. Green, 375; Perot's Appeal, 102 Pa. St. 235; Domiuick v. Michael, 4 Sandf. 374; Anewalt's App Wright 414.] Although previously to the late Wills Act (which enacts, that no will of an infant shall bo valid), infants of the age of fourteen years might by will have disposed of their personalty, they could not, by will, have disposed of money directed to be converted into land Earlom v. Saunders, Amb. 241. Money agreed or directed to bo laid out in tho purchaso of land acquires tho descendiblo properties of land; [Money which has been directed to bo turned into land descends to tho heir; and land directed to bo turned into monev goes to tho personal representative: Wurts v. Page, 4 C. E. Green, 305; Snell's Eq. 148; but seo Page's estate, 25 P. F. Smith, 87.] but with respect to tho rights of the heir of tho person upon whom money inpressed with tho character of realty is settled, it is necessary to distinguish between thoso cases whore tho heir claims tho payment of tho money from strangers, and those cases where he claims the payment from the personal
.1

"

:;;

representatives of his own ancestor. Where tho heir claims payment of tho money from strangers, he will, it seems, in all cases bo

415

* 979

FLETCHER

V.

ASHBURNER.

Thus, preferred to tho personal representatives of his ancestor. where money has been bequeathed to be invested in land, for the use of the ancestor and his heirs; or where, on tbe marriage of tho ancestor, money has been actually paid, either by him or by a stranger, to trustees, to be laid out in land, to be settled upon himself for his life, remainder to his wife for her life, with remainder to their issue, and in default of issue, to the ancestor and his heirs or if, on tho marriage of tho ancestor, thero bo a covenant on the part of a stranger to lay out money in tho purchase of land to be settled to the same uses, and in all these cases tho ancestor die without issue tho heir of tho ancestor, and not his personal representatives, will bo entitled to tho money to be laid out in tho purchase of land: Scudamoro v. Scudamore, Prec. Ch. 543; Disherw. Disher, 1 P. Wms. 204; Chaplin v. Horner, 1 P. Wms. 487; Edwards v. Countess of Warwick, 2 P. Wms. 171; Knights v. Atkins, 3 Vern. 20. If the heir seeks payment of the money from tho personal representatives of tho ancestor, his claims will be superior to those of the personal representatives, if thero be any prior outstanding inThus, where the ancestor has terest in tbe fund in another person.
;

covenanted to lay out a sum of money in land, to bo settlod upon himself for life, remainder to his wife for her life, remainder to tho issue of the marriage; remainder to his o vn right heirs, if, on the death of the ancestor, the wife or any issue be living, although they may afterwards die, tho heir can call upon the personal representaLancy tives for the money: Kettleby v. Afwood, 1 Vern. 298, 471 v. Fairechild, 2 Vern. 101; Chaplin v. Horner, 1 P. Wms. * 979 ] 483; *Lechmere v. Earl of Carlisle, 3 P. Wms. 21 1 Cas. t [ Talb. 80; Oldham v. Hughes, 2 Atk. 452; Wrightson v. Macaiday, 4 Hare, 487. So where money was liable to be invested in land to bo settled to uses in strict settlement, and all the uses were exhausted except a legal jointure, it was held by Sir G. Jessel, M. R, that tho jointress having an equity to compel tho investment of tbo money in land, the same must bo treated as real estate as between tho real and personal representatives of tho person who, subject to the jointure, was entitled thereto, though it seems it would bo otherwise as to portioners Walrond v. Rcsslyn, 1 1 Ch. D. G40. If, however, there is no outstanding interest, as whero in such a
;

case as Kettleby v. Ativood, the wife dies in tho lifetimo of tho ancestor, leaving no issue of tho marriage, then, as tho obligation to lay out and tho right to call for tho money centro in tho same person viz., the ancestor tho covenant, without any act on his part, will bo considered as discharged: tho money, to use a quaint expression, is "at home,' and the heir will have no equity against the Thus, in Chichester v. Bickerstaff, representatives of his ancestor. 2 Vern. 295, it appears that, on the marriage of Sir John Chichester with the daughter of Sir Charles Bickerstaff, Sir Charles, by articles, was to pay 1500?. in part of the portion, which, together

''

416

FLETCHER

V.

ASHRURNER.

* 080

with 1500Z, more, to be advanced by Sir .John, within three years after the marriage, was to be invested in land, and settled on Sir John for life, his intended wife for life, remainder to their issue, remainder to Sir John's right heirs. Within a year of the marriage Sir the wife died, and Sir John three days after, without issue. John, by his will, made Sir Charles his execidor, and devised the residue of his personal estate, after debts, &c. paid, to Frances The heir-at-law of Sir John tiled a bill Chichester, his sister. against Sir Charles to compel him to pay the L5001 (i. <\, the 1501)/. to be advanced by Sir John), insisting that, by virtue of the marriage articles, the money ought to be looked on and considered Bat. in equity as land, and therefore belonged to him as heir. Lord Somers said, "This money, though once bound by the articles, yet when the wife died without issue, became free again, and was under the power and disposal of Sir John, as the land would likewise have been in case a purchase had been made pursuant io the articles, and therefore would have been assets to a creditor, and must have gone to the executor or administrator of Sir John; and this case is much stronger where there is a residuary legatee;" and Doubts have been thrown therefore dismissed the bill.
v.

upon this; case by Sir Joseph Jekyll, M. R., in *Lechmere [ *980 ] Earl of Carlisle, 3 P. Wins. 221, and by Lord Talbot, in Lechniere v. Lechmere, Cas. t. Talb. 90; but they seem to have
supposed that the plaintiff in this suit sought the 1501)/. which Sir Charles was to pay, and to have overlooked the fact, that Sir Charles was executor of Sir John, and that the plaintiff must have claimed In the great case of Pultthe 1500/. to bo advanced by Sir John. eneyw. Darlington, 1 Bro. C. C. 288, Lord Thurlow evidently considered that the 1500Z. to be paid by Sir John was sought by the heir-at-law from the assets in the hands of Sir Charles, his executor ; for he says, "Where a sum of money is in the bauds of one, without any other use but for himself, it will be money, and the
heir cannot claim; like the case of Chichester
v.

Bickerstaff, against

which I thiuk there is no judgment, though there are a number of I know no better authority than that case." opinions.

will be "at home" when the person entitled thereto from the trustees. Thus, in the case of Pulteney v. Darlington, 1 Bro. C. C. 223, money impressed with the qualities of realty had come to the hands of the person (Lord Bath) solely entitled to it under the ultimate limitation in fee; and the person so entitled, without taking any notice of the particular sum, devised all his manors, &c, which he was seised or possessed of, or to which he was in anywise entitled in possession, reversion, or remainder, or which should thereafter be purchased with any trust

The money
it

receives

moneys (except certain estates therein mentioned), to his brother H. in fee, and gave him all the residue of his personal estate, and made him executor. His brother H. subsequently, by his will, gave all his estates, by local descriptions, to certain uses thereiu men* 27 WHITE ON EQUITY. 417

* 981

FLETCHER
and
all

V.

ASHBURNER.

tioned,

money, goods, chattels, and to his executors, for certain Lord Thurloiv, affirming the decree trusts mentioned in his will. of Lord Bathurst, dismissed the bill brought by the heir-at-law to
his
securities for
of,

money,

personal estate, not before disposed

"If," said his Lordship, "A. B. have the money laid out inland. has in his possession 20,000Z. to be laid out in land for his use, he has nobody to sue; the right and the thing centering in one person, the action is extinguished;" and after citing and commenting upon the cases on this subject, his Lordship added, "The use I make of these cases, notwithstanding the dicta they contain, is this, that where a sum of money is in the hands of one without any other use but for himself, it will be money, and the heir cannot claim. But whether that is clearly so or not, circumstances of demeanour in the person (even though slight) will be sufficient to decide it; a very little would do; receiving it from the trustees, there * 981 ] is no doubt, would *be sufficient. Lord Bath did receive [ it: he had it in his hands. Suppose he had it by way of covenant otherwise, where would there be an end? If he kept it, subject to a covenant to lay it out for fifty years, should the heir come for it at the end of that term? It would lead to infinite inconveniences." This decision was affirmed upon appeal in the House of Lords, 7 Bro. P. C, Toml. ed. 530, and "went," as Lord Eldon says, "no further than this, that if the property was at home, in the possession of the person under whom they claimed as heii; and executor, the heir could not take it: but if it stood out in a third person he might; and the question in that cause was, not upon the equity between the heir and executor, but whether the money was at home:" 8 Ves. 235; Chaplin v. Horner, 1 P. Wms. 483; Bowes v. Earl of Shrewsbury, 5 Bro. P. C. 144; Rich v. Whitfield, 2 L. R. Eq. 583. It may be here mentioned, that Lord Rosslyn in the case of Walker v. Denne, 2 Ves. jun. 175, 176, observed, that, as between the heir and personal representative, their rights were pure legal rights; that chance decided what should be real, what personal; and that neither had a scintilla of equity to make the property that which it And the same opinion is expressed in Oxenden v. is not in fact. Lord Compton, 2 Ves. jun. 70; Lord Compton v. Oxenden, 2 Ves. jun. 265. This doctrine, however, of Lord Rossly7i s has been repeatedly dissented from in subsequent decisions. See Wheldale v. Partridge, 8 Ves. 235; Lechmere v. Lechmere, Ca. t. Talb. 90; Thornton v. Haivley, 10 Ves. 138; Kirkman v. Miles, 13 Ves. 338; and see Stead v. Neivdigate, 2 Mer. 521; In re Pedder's Settlement, 5 Be Gex, Mac. & G. 890. Lord Macclesfield, It has been laid down by an eminent judge "that if a party voluntarily and without any consideration coveC. nants to lay out money in a purchase of land to be settled on him and his heirs, the Court would compel the execution of such contract, though merely voluntary, for in all cases where it is a nieas-

418

FLETCHER

V.

ASHBURNER.

982

uring cast betwixt an executor and an heir, the latter shall in equity have the preference:'' Edwards v. Countess of Warwick, 2 P. Wins. 17(5; Lechmere v. Lechmere, Ca. t. Talb. 90, 91. But although other judges have considered that the heir should he favoured (Hayter v. Hod, P. Wins. 364; Scudamorc v. Srndamore, Prec. Ch. 544; <'nil>tree v. Bramble, 3 Atk. 689; U7/.soj/ v. Beddard, 12 Sim. 32), the more correct principle appears to be that neither should be favoured, and that right to the fund must depend upon the character with
1

impressed. notionally converted into land will not, however, be considered as converted into land so * as to render it [ * 982 ] liable to succession duty under 1G & 17 Yict. c. 51, s. 30; but it will be liable to the payment of legacy duty: ReDe Lancey, 4 L. R. Exch. 345; 5 L. R. Exch. 102;seealso The Queen v. DeLana y, L. R. Exch. 280; S. C, 7 L. R. Exch. 140. [The doctrine of conversion is applied to all cases where the general intention of the testator is sufficiently manifest to give the property to the donee in a condition different from that in which it exists at the time that the will goes into effect: Roland v. Miller, 100 Pa. St. 47; Phelps v. Pond, 23 N. Y. 00; Stagg v. Jackson, 1 Comstock, 200.] It seems that money agreed or directed to be laid out in land, and settled upon a person in fee, will not upon his death without heirs be converted in equity, so that it should escheat to the Crown (Walker v. Denne, 2 Ves. jun. 170, 185) or to a mesne lord: Burgess v. Wheate, 1 Eden, 177; Henchman v. Attorney -General, 3 Mv. & K. 483, 404. But see the Intestates' Estates Act, 1884 (47 & 48
it is

which

Money

Vict,

c.

71,

s.

4).

a the Crown, as would have been the case if it were not for the notional conversion: lie Harrop's Estate, 3 Drew. 720; and see In re Wharton, 5 De G. Mac. & G. 33. But forfeiture for treason or felony is now abolished: 33 & 34 Vict. c. 23, s. 1. Questions frequently arise as to the mode in which money in court, impressed with the character of realty, can be laid out upon lands settled in the same manner as the money. The authorities are very contradictory, but the present state of the law appears briefly to be this, that where money which under the provisions of a deed, will, or Private Estate Act is to be invested in the purchase of land (Brunskill v. Caird, 10 L. R. Eq. 493; Bosiock v. Blakeney, 2 Bro. C. C. 05:!; Dunne v. Dunne, 3 Sm. & Giff. 22; sed vide Lord Hothani's Trusts, 12 L. R. Eq. 70), as well as money so to be invested by virtue of the Land Clauses Act (8 Vict. c. 18), or the Leases and Sales of Settled Estates Act (19 & 20 Vict. c. 120, amended by 21 & 22 Vict. c. 77; 27 & 28 Vict, c. 45; 37 & 38 Vict, 40 & c. 33, and 39 & 40 Vict. c. 30; repealed and consolidated by 41 Vict. c. 18, which has been partially repealed ami amended by 42 & 43 Vict. c. 78; 44 & 45 Vict, c. 41; 45 & 40 Vict, c. 38; and

Where money impressed with the character of realty belonged to person who was convicted of felony, it would not be forfeited to

419

* 983

FLETCHER

V.

ASHBURNER.

the Stat. Law Rev. Act, 1883), it may, in a proper c?se, be ordered by the Court to be employed in erecting new buildings upon land settled to same uses, on the principle that the erection of buildings is substantially the same thing as the purchase of a new estate (see Drake v. Trefusis, 10 L. R. Ch. App. 364; In re Wight's Devised Estate, 6 W. R. (V.'-C. W.) 718; In re Davis' Estate, 3 De G. & J. 144; Be Dummei-'s Will, 2 De G. Jo. & S. 515; In re Netcman's Settled Estates, 9 I. R. Cb. App. 681; In reLytton's SePled Estates, W. N. Aug. 16, 1884, p. 193); or in rebuilding a house pulled down, Donaldson v. Donaldson, 2 Ch. D. 743. But the Court will rarely sanction *such money being [*983] laid out in repairs, or in permanent improvements not placing new buildings on the land (see In re Nether Stoicey Vicarage, 17 L. R. Eq. 156; Drake v. Trefusis, 10 L. R. App. 36; In re Leslie's Settlement Trusts, 2 Ch. D. 185, 189; Donaldson v. Donaldson, 3 Cb. D. 743; Bostockx. Blakeney, 2 Bro. C. C. 653; Dunne v. Dunne, 3 Sm. & G. 22; Brunskill v. Caird, 16 L. R. Eq. 493, overruling In re Lord Hotharris Estate, 12 L. R. Eq. 76); save in such repairs or expenditure as are essential to the preservation of the In re Leigh's Estate, 6 L. R. Ch. App. 887; In re Altrust estates: dred's Estate, 21 Ch. D. 228; In re Jackson, Jackson v. Talbot, 21

Ch. D. 786. And an addition to a house already erected will be considered in effect as a new building, because by making it you are not merely repairing but doing that from which a permanent increase of rent may be expected: In re Speer's Trusts, 3 Ch. D. 262, 264. But in In re Venour's Settled Estate, 2 Ch. D. 522, the Court refused to order money to be laid out in making roads and sewers on building land, part of a settled estate, though such money was directed to be laid out in the purchase of land to be settled to the

same uses. But in a recent case Bacon, V.-C, allowed money laid out in draining upon which the tenants paid 5Z. per cent, as well as money expended in erecting new buildings, and his Lordship observed,
that in the ordinary case, the test is, Is the thing in respect of which the expenditure has been incurred, an addition to or merely an improvement of the existing estate ? In re Leslie's Settlement Trusts, And still more recently Kay, J., ordered money 2 Ch. D. 185, 189. to be raised by mortgage of an infant's estate for the purpose of paying the costs of repairs which the chief clerk certified to be ab solutely necessary, but his Lordship expressed an opinion that this jurisdiction "should be jealously exercised, and only in cases which amounted to absolute salvage:" In re Jackson, Jackson v. Talbot,

21 Ch. D. 786.

Whether the laying out

of

money

in re-erecting old buildings

can be looked upon in the same light as erecting new ones seems to be very doubtful; thus although money paid into Court from the re-building sale of glebe land has been allowed to be expended in

420

FLETCHER

V.

ASIIBURNER.

* 984

parsonages (see In re Incumbent of Whitfield, 1 J. & H. CIO; Ex parte Rector of Shipton, 19 W. II. (L. C.) 54 J; Ex parte Hector of Welbourn, 17 L. 11. Eq. 157, cited), doubt Las been thrown upon these cases ( in In re Nether Stowey Vicarage, 1 7 L. It. Eq. and in Williams v. Aylesbury and Buckingham Railway Co., 9 L. 11. Ch. App. 084, the Court refused to recoup a rector for re* 98 building a rectory, although *thafc has been done in Ex parte Rector of Shipton-under-Wychwood, 19 W. R. (L. C.) 549; and see Ex parte Rector of Garmston, 1 Ch. D. 478. Sed vide In re Davis' Estate, 3 De G. & Jo. 144; In re Buckinghamshire Railway Co., 14 Jur. 1005; Ex parte Rector of Claypole, 10 L. R. Eq. 574; In re Louth and East Coast Railway Company, 2 Ch. D.
(
1

-"><

225.

modes in which, under the Settled Land Act, 40 Vict. c. 38), money in court under tbe Lands Clauses and other Acts may be applied, or capital trust money may be invested (see lb. ss. 21-24, 32) and improvements made with capital trust money, see ss. 25-30; and see Settled Land Act, 1882, by Wolstenholme and Turner, 2nd ed. pp. 35-47, 49.
to the various

As

1882 (45

&

conversion of land into money.] Upon the same prinor directed to be laid out in land will be considered in equity as land, so land agreed or directed to be sold will be considered as money, and as such will not pass under a devise of land [Elliott v. Fisher, 12 Sim. 505); but will pass under a general residuary bequest of personal estate by the cestui que tritst. [The right of creditors of the vendor will not be affected by a conversion: Leiper's Exrs. v. Irvine, 2 Casey, 54; and Leiper's Ap(Stead v. Newdigate, 2 Mer. 521; Farrar v. peal, 11 Casey, 420.] Earl of Winterton, 5 Beav. 1; Midland Counties Railway Company v. Oswin, 1 Coll. 74; Cover v. Davis, 29 Beav. 222; and see Savile v. Kinnard, 11 Jur. (N. S.) 195, 13 W. R. (V.-C. K.) 308); and in case of intestacy, will go to his personal representatives (Gilb. Lex. Prsetoria, 243; Ashby v. Palmer, 1 Mer. 290; Barton v. Hodsoll, 2 Sim. 24; Biggs v. Andreics, 5 Sim. 424; Elliott v. Fisher, 12 Sim. 505; Griffith v. Ricketts, 7 Hare, 299; Hardey v. Hawkshaiv, 12 Beav. 552) even where conversion is not to take place until after his death (Clarke v. Franklin, 4 K. & J. 257); and they may maintain a bill, in the case of a contract to sell by a vendor, against his heir-at-law and the purchaser for specific performance: Hoddell v. Pugh, 33 Beav. 489. [A direction in the will which postpones the time of sale, does not prevent a conversion from taking place at once. Hocker v. Gentrv, 3 Metcalfe (Ky.), 403; High v.
to the

As

ciple that

money agreed

Worley, 33 Ala. 196.]

A mere notice to treat given by a railway company, or other persons having compulsory powers to purchase lands, to an owner of land in fee (being sui juris), although it may so far constitute an obligation as to enable the company to restrain the landowner from
421

* 985

FLETCHER

V.

ASHBURNER.

putting up the property for sale by auction (The Metropolitan Railway Company v. Wooolhouse, 11 Jur. (N. S.) 296; 13 W. R. V.-C. S. 516), will not operate as a conversion of the land into personalty (Hay tics v. Haynes, 1 Dr. & Sim. 426; seel vide Walker v. The East em Counties Railway Company, 6 Hare, 594), although the landowner state the price he is willing to accept, if he die before the acceptance of his offer. [Where a conversion takes place by vir"The tue of a contract it is necessary that the contract be binding. question always is whether the vendor or purchaser at the time of his death is absolutely or contingently liable under such an agreement as equity would enforce against him." Bispham's Eq. Sec. 313, and Dart on Vendors (4th Ed.), 238.] Re Batter sea 2 N. R. * 257 [ * 985 ] Park Acts, Ex parte Arnold, 32 Beav. 591 Richmond v. North London Railway Company, 5 L. R. Eq. 352, 358. Nor will conversion take place where the contract with the landowner merely fixes the price per acre, without mentioning the quantity to be taken, and the purchase-money paid for the land taken after the owner's death will be realty: Ex parte
;
.

Walker, Drew. 508. It is clear, moreover, from the cases, that the notice given by the railway company to the landowner cannot operate for an indefinite time, it must be acted upon within a reasonable time, or it must be deemed to be abandoned: Richmond v. North London Railway Co., As to abandonment, see 5 L. R. Eq. 358, 3 L. R. Ch. App. 679. Hedges v. Metropolitan Railway Company, 28 Beav. 109; Ystahjfera Iron Co. v. Neath and Brecon Railway Co., 17 L. R, Eq. 142. But where a notice to take lands by a company under their compulsory powers is followed up by the company and landowner fixing upon the price, the contract is complete, and conversion will And see The Regent's take place: Ex parte Hawkins, 13 Sim. 569. Canal Company v. Ware, 23 Beav. 575; Nash v. The Worcester Improvement Commissioners, 1 Jur. (N. S. ) 973; Adams v. London and Blackwell Railway Company, 2 Mac. & G. 118; hire Pigott and the Great Western Railway Company, 18 Ch. D. 146, 150.

The result is the same where the price is ascertained arbitration (Harding v. Metropolitan Railway Co., 7 L. R. 154), by the valuation of two surveyors (Watts v. Watts, Eq. 217), or the verdict of a jury: Haynes v. Haynes, 1
Sm. 426.

either

by

Ch. App. 17 L. R.

Drew.

&

the owner in fee of an estate, having devised it to an inagreed with a railway company under their compulsory powers to sell a portion of it to the company, and afterwards died before the completion of the purchase, without having altered his will, it was held by Sir J. Romilly, M. R, that the executors of the landowner, and not the devisee, were entitled to the purchase- money, and to the compensation for severance, and that the railway company was bound to pay the costs of the infant devisee (In re The Manchester and Southport Railway Company, 19 Beav. 365). The

Where

fant,

422

FLETCHER

V.

ASIIBIRNER.

* 986

infant devisee, moreover, is a trustee within the meaning of the Trustee Act, 1850-1, and a vesting order may be made on a petition under that Act: In re Loin-i/s Will, 15 L. II. Eq. 78. [If the lands of an infant are sold by order of the court, the proceeds remain real estate so far as the guardian or infant are concerned, until he is of age, but if he dies after he has attained his majority, the proceeds are treated as personalty: Fidler v. Higgins, 21 N J. Eq. L38; Shumway v. Cooper, 10 Barb. 550; March v. Berrier, 16 Ired. Eo. 521; and Snowhill r. Snowhill, 2 Green's Ch. 21).] Where the donee of a power agrees to sell land to a railway company, and dies before the execution of the power, a Court of equity will supply the defect in the execution of the power, and the per sonal representative of the donee will be entitled to the purchasemoney as personal estate: In re Dykes' Estate, 7 L. B. Eq. 337. * As to the money paid into Court for land taken under [ * 986 ] compulsory clauses of Acts of Parliament, seepos^, p. 1024. Formerly when a person who had entered into a contract for the purchase of land in fee died before the contract was completed, his devisee as well as his heir-at-law, whichever of the two became entitled to the land, could compel payment of the purchase -money out of the personal estate; but he was bound to show that there was a binding contract at the death of the purchaser, and one which could be enforced against an unwilling purchaser: Garnett v. Acton, 28 Beav. 333; and see Lanqford v. Pitt, 2 P. Wins. 629, 632; Broome v. Monck, 10 Ves. 597, 612, 615. Where, moreover, the purchaser at the time of his death was under a contract to purchase realty, which might then have been specific ally enforced against him. the right of his real representative was not affected by anything which took place subsequently. [Where the conversion is claimed to take place by virtue of a contract, the contract must be one that is binding and the rule is not altered by anything happening after the death of the purchaser by which the binding character of the contract could be affected, nor by the circumstance that the purchase is entirely at the option of the vendee: D' Arras v. Keysor, 2 Casey, 249; Dart on Vendors, 230; Kerr r. Day, 2 Harris (Pa.), 114.] Thus, if the contract ceased to be binding on the purchaser's representatives in consequence of the felling of ornamental timber by the vendor (Dart V. & P. 265, 5th ed. ), or was rescinded by the vendor on the ground of delay (Whittaker v. Whittaker, 4 Bro. C. C. 31), or under a power reserved to him in the contract (Hudson v. Cook, 13 L. B. Eq. 417), the real representative of the purchaser was entitled to receive the purchasemoney out of his personal estate. See also Curre v. Boivyer, 5 Beav. 6, n. Ayles v. Cox, 16 Beav. 23. Where an heir-at-law adopted a parol contract of his ancestor to sell land, it was considered to have been converted, and the proceeds to belong to the personal representatives of the ancestor; al;

423

* 987

FLETCHER

V.

ASHBURNER.

though the heir-at-law, if he had repudiated the parol agreement, might have claimed the land: Frayne v. Taylor, 33 L J. Ch. (N.
if the heir-at-law in such a case had acted under a mistake, the Court would have allowed the matter to be rectified:

S.) 228. <- It seems that

lb. p.

232.

So where a person contracted with a builder to erect a house on a piece of freehold land belonging to him, aDd died intestate before the house was finished, it was held by Lord Romilly, M. R, that the heir-at-law was entitled to have the house finished at the expense of the personal estate of the intestate: Cooper v. Jarman, 3 L. It. Eq. 98. It must, however, be remembered, that under 30 & 31 Vict. c. 69, amending Locke King's Act (17 & 18 Vict. c. 113) the devisee of a purchaser lost his right to compel the personal representatives to discharge the unpaid purchase-money (see ante, pp. 392, 762, and see In re Cockroft, Broadbent v. Groves, 24 Ch. D. 94); *987] but * the right of the heir-at-law to do so until lately re[ mained intact {Ha-dingy. Harding, 13 L. It. Eq. 493: see also 2 Seton on Decrees, 909), but was taken away by a recent Act
40

&

41 Vict.

is not an interest in land within their meaning. And it has been held that a share of the proceeds to arise from a sale of lands under trusts for conversion is not an interest in land within the meaning of Locke King's Act and that a person to whom such share has been bequeathed by a testator who had mortgaged it, can demand the payment of the mortgage out of the general personal estate Leivis v. Lewis, 13 L.

None

See ante pp. 392. 763. c. 31). of these Acts apply to a chattel, as it

E. Eq. 218.

Formerly the devisee or heir-at-law of the person who had contracted for the sale of land, on his death, were obliged to join in the conveyance. Now, however, under the 4tb section of the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), which commences from and after the 31st December, 1881, it is enacted that " where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or othe,r freehold interest, descendible to his heirs general, in any land, his personal representatives shall, by virtue of this Act, have power to convey the land, for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract. (2.) A conveyance made under this section shall not affect the beneficial rights rf any person claiming under any testamentary disposition, or as heir or next of kin of a testator or intestate. (3). This section applies only in cases of death after the

commencement

of this Act." contract by a trustee for sale, for the purchase of the trust property, as it cannot be enforced inequity, will not be considered, as between the real and personal representatives of the purchaser, See Ingle v. as a conversion of the purchase-money into realty.

424

FLETCHER
Richards, 28 Boav. 361.

V.

ASIIBURNER.

088

See further, on this subject, Dart, V.

& P.

land into although he could not, previously to the naturalization Act, 1870 (33 & 34 Vict, c. 14) hold land as against the Crown, would, nevertheless, bo entitled to the proceeds arising from the sale of land devised to trustees to sell for his benefit Dn Hourmelin v. Sheldon, 1 Beav. 79, affirmed on appeal by Lord Cottenham, 4 My. & Cr. 525. Where, however, there was no trust for absolute conversion, and the heir was an alien, the Crown was entitled to the estate FourBut now, by the Natdrin v. Gowdey, 3 My. & K. 383. uralization Act, 1870, which is not * retrospective aliens [ * 988 ] may hold or dispose of property of every description like British-born subjects Sharp v. St. Sauveur, 7 L. R. Cb. App. 343. See also the Naturalization Amendment Act, 33 & 34 Vict. c. 102, and 35 & 36 Vict. c. 39. The Court will execute a trust of lands for an alien (created prior to the Naturalization Act, 1870), in favour of the Crown Barrow Sharp v. St. Sauveur, 7 L. R. Ch. App. 343, v. Wadkin, 24 Beav. 1

261, 262, 265, 266, 267, 5th ed. Upon the principle of the notional conversion of

money

an

alien,

overruling Rittson

v. Stordy, 3 Sm. & Giff. 230. Formerly, when a felon was entitled to money arising from the conversion of land, and a sale took place before he worked out his punishment, the" Crown became entitled thereto Re Thompson's Secus, where he had worked out his punTrusts, 22 Beav. 506. ishment before the time of sale, as the Crown had no equity to comlb. But by a recent Act (33 & 34 Vict. c. 23) forpel conversion feiture for felony has been abolished, s. 1, and the convict's property will be vested in administrators for the purposes mentioned in
: :

the Act.

(Sect. 10.)

bequest of money to arise from the sale of real estate, or a legacy from a fund to be produced by such a sale, is within the Mortmain Act [This statute has not been adopted in the United States: not because it comes within 2 Kent's Com. 283.] (9 Geo. 2, c. 36) its express words, but because it comes within its meaning, inasmuch as if such a bequest were allowed, the charity to whom the bequest was made might elect to take the land Attorney -General v" Lord Weymouth, Amb. 20; Paice v. The Archbishop of Canterbury, 14 Ves. 364; Attorney -General v. Harley, 5 Madd. 321; Thornber v. Wilson, 3 Drew. 245, 4 Waite v. Webb, 6 Madd. 71 Drew. 350; The Incorporated Church Building Society v. Coles, 5 De G. Mac. & G. 331 Robinsons. Robinson. 19 Beav. 201. And even when land has been directed to bo converted into money by a former instrument, a bequest of the whole or part of the proceeds thereof by a party entitled thereto will be void under the Mortmain Act. See Attorney -General v. Harley, 5 Madd. 321; Brook v. Badley, 4 L. R. Eq. 106,3 L. R. Ch. App. 672; Lucas v. Jones, 4 L. R. Eq. 73, overruling Middleton v. Spicer, 1 Bro. C. C.
: :

425

* 989

FLETCHER

V.

ASHBURNER.

20; Shadbolt v. Thornton, 17 Sim. 49, more fully reported 13 Jur. 597; Marsh v. Attorney -General, 2 J. & H. 61. See Tudor' s Charitable Trusts, pp. 69 74, 2nd ed. The doctrine of equitable conversion is not sufficient to give a court of probate jurisdiction over a will limited to real property. See In the Goods of Jane Barden, 1 L. E. (P. &D.) 325. [It is the duty to convert which created the equitable change: Thornton v.

Hawley, 10 Vesey, 129.] There it was held by Lord Penzance that a will limited to, the disposition of real property only was not entitled to probate, although it contained the appointment [ * 9S9 ] of an executor, and the real estate was * given to such executor, with directions to convert the same into personal

But see In the Goods of Jordan, ib. 555. settlement, moreover, of land held upon trusts for absolute conversion, although purchased for a particular sum, is not, under the
estate.

Stamp Act (13 & 14 Vict. c. 97, sched. "Settlement"), subject to an ad valorem duty as a definite and certain principal sum of money, within the meaning of the Act; Re Stuckley's Settlement, 5 L. R.
Ex. 85.

Conversion must be imperative.'] The direction to convert either into land or land into money must be express, and imperative; for if conversion be merely optional, the property will be considered as real or personal, according to the actual condition in which it is found. [A conveyance to trustees to pay an annuity of the rents of certain real estate, or to sell, was held not to work a conversion, because it was not imperative on the trustees to exercise the power: Bleight v. The Bank, 10 Barr, 131.] Thus, in Curling v. May, cited 3 Atk. 255, A. gave 500Z. to B., in trust that B. should lay out the same upon a purchase of lands or put the same out on good securities, for the separate use of his daughter H. (the plaintiff's then wife), her heirs, executors, and administrators, and died in 1729. In 1731, H., the daughter, died without issue, before the money was invested in a purchase. The husband, as administrator, brought a bill for the money against the heir of H., and the money was decreed to the administrator; for, the wife not having signified any intention of a preference, the Court would take it as it was found: if the wife had signified any intention, ft should have been observed, but it was not reasonable at that time to give either her heir or administrator, or the trustee, liberty to elect; for Lord Talbot said it was originally personal estate, and yet remained so, and nothing could be collected from the will, as to what was the testator's principal intention. See also In re Ibbitson s Estates, 7 L. E. Eq. 226. So, likewise, if money is directed to be laid out "in Government or other securities or in the purchase of freeholds," or "to remain at interest,or "be laid out in land," or "to belaid out in freeholds or leaseholds;" or if similar expressions are made use of, leaving the

money

426

FLETCHER

V.

ASHBURNER.

* 990

nature of the investment optional, or which do not sufficiently indicate an intension that the money should be laid out in land at all events, no cbnvertion will take place until the trustees have actually exercised their discretion, which, when clearly given to them, the Court will not control. See Van v. Barnett, L9 Yes. L02; Amler v. Amler, 3Ves. 583; Walker v. Dame, 2 Ves. Jnn. 170; Wheldale v. Partridge, 5 Ves. 388; S. C, 8 Ves. 227; Polleyv. Seymour, 2 V. & C. Exch. Ca. 708; Smithwick v. Smithwick, 12 Ir. Ch. Rep. L81; Ativell v. Atwell, 13 L. R. Eq. 23; In re Whitty's Trust, 9 Ir.

Eq. 41.

Upon the same principle, where *such is clearly the in- [ *990 J tention of the testator, the destination of the property, even under the will itself, may depend upon the exercise by trustees of their option to sell, so that, for instance, if the property remained unsold it went to the heir-at-law; if sold, to the residuary legatees; Broicnv. Bigg, 7 Ves. 279; Harding v. Trotter, 21 L. T. 279. [A discretion in the trustees as to whether a sale shall take place or not, prevents a conversion but if a discretion as to the time or manner of the sale is allowed then it will not hinder the conversion Tazewell v. Smith, 1 Rand. 313;.Staggt>. Jackson, 1 Comstock, 206, contra; Christler v. Meddis, G B. Mon. 35.] The vesting also of property may be made, by clear and unequivocal terms, to depend upon the time when the option to sell is exercised: Elwin v. Elwin, 8 Ves. 547; Faulkener v. Hollingsworth,
:

lb.

real estates given together with residuary personalty to executors upon trust, will not have the effect of converting the real estate (Hyett v. Mekin, 25 Ch. D. 735), even though it be accompanied by a declaration that the testator's residuary estate shall for the purpose of transmission be impressed with the quality of personal estate from the time of his

558 cited. mere power to trustees of residuary

decease: lb.

And where trustees have a mere power with the consent of a person in possession of certain settled estates to lay out personal property in land to be settled to the same uses, no absolute conversion takes place: De Beauvoir v. De Beaunoir, 3 H. L. Cas. 524; Lucas y. Brandreth, 28 Beav. 273; Edurtrds\. Tuck, 23 Beav. 268. But although conversion is apparently optional, as where trustees are directed to lay out personalty, "either in the purchase of lands of inheritance, or at interest." "in freeholds, leaseholds, or copyholds," or "in land or some other securities," as they shall think most tit and proper; yet if the limitations ore adapted only to real estates, so as to manifest the testator's intention that land shall be ultimately purchased, the money must be considered as land, although it be not actually so invested by trustees: Cowley v. Hartstongc, 1 Dow, 361; Hereford v. Ravenhill, 5 Beav. 51; Cookson v. Reay, 5 Beav. 22; 12 C. & F. 120; Johnson v. Arnold, 1 Ves.
427

* 991

FLETCHER

V.

ASHBURNER.

169; Simpson v. Ashworth, 6 Beav. 412; Ralph v. Carrick, 5 Ch. D. See also Sugd. Prop. 462. 984; 11 Ch. D. 873. In Earlom v. Saunders, Arab. 241, W. P. devised lands to trustees and their heirs, to the use of his wife for life, remainder to his first and other sous in tail, remainder to Widdriugton Powell and William Powell, in fee, as tenants in common. And he directed, that 400Z. should be raised by his executrix out of his personal estate, and paid by her to his trustees, or one of them, who should lay out the same in a purchase of land, or any other security or securities, as they should think proper and convenient; and he directed that the lands so to be purchased, and the security * securities on which the 400Z. should be so laid out, [ *991 ] or should be made to and settled on, the trustees, their heirs and assigns, in trust and to the use of his wife for life, and after her decease to such uses, and under such provisions, conditions, and limitations, as his lands before devised were limited. Lord Hardwicke held, that conversion was not at the election of the "This Court," said his Lordship, "never admits trustees trustees. to have such election, to change the right, unless it is expressly Here the money is to be laid out in land or securigiven to them. If it is laid out in ties, for such uses as the land is before settled securities (which are personal), all the limitations might not take place; for if there was a son born, he would take the whole money, as being tenant in tail, and the subsequent limitations would be The only way to make the clause consistent is, that the defeated. money be laid out on securities till lands are purchased, and the interest and dividends, in the meantime, to go to such persons as would be entitled to the land." See also Edwards v. Countess of Warwick, 2 P. Wms. 171; sed vide Atwell v. Aticell, 13 L. R. Eq. 23. "When there is a direction that money should be laid out in the purchase of land, a mere temporary provision, that in the meantime and until such purchase could be found, the money is to be placed out on securities, will not prevent immediate conversion from taking

Edwards v. Countess of Warwick, 2 P. "Wins. 171. If however it appeared to bo the intention that in a particular event, as for instance the death of a husband before his wife, the investment in securities was not to be of a merely temporary, but of a final character, conversion will not take place: Wheldale v. Partridge, 5 Ves. 388, 8 Ves. 227. When there is a trust to sell within a particular time, it will be considered merely as directory, and conversion will take place, although no sale takes place within the time mentioned. SeePearce v. Gardner, 10 Hare, 287; Cuff v. Hall, 1 Jur. N. S. 972; Tily v. Smith, 1 Coll. 434. And conversion will also take place immediately, when lands are directed to be sold, although the sale is to take place as soon as the
place:

trustees should see necessary for the benefit of the cestui que trusts. See Doughty v. Bull, 2 P. Wms. 320. There the testator devised

428

FLETCHER

V.

ASHBURNER.

* 993

lands to trustees in fee in trust to apply the profits until pale for the benefit of all bis four children and the survivors and survivor of them equally, and on further trust that as soon as the trustees shall see necessary for the benefit of the children, they should sell the It was premises and apply the money for their benefit. held that the land was at * all events to be sold though the [ * 992 J See time was left to the trustees, and was personal estate. also Robinson v. Uobinson, 19 Beav. -194; In re Raw, Morris v. Griffiths, 26 Ch. D. 001. Conversion in favour of a particular legatee, to whom the proceeds of sale are bequeathed, will not be prevented by a devise of the property in an alternative event, in terms applicable to its unconverted state, inasmuch as the testator may have contemplated the possibility of the event taking place before a sale did so; moreover it may have been intended that as to one legatee, the property might be real, and as to the other legatee, to whom it was given on an alternative event, personalty: Ashby v. Palmer, 1 Mer. 290. See also Cowley v. Harts4onge, { Dew, 381; Ward v. Arch, 15 Sim. 389. But a trust for conversion will not be prevented from being imperative in both alternatives, because it is less necessary for distribution in one event than the other: Wall v. Colshead, 2 De G. & J. Jur. N. S. 1003; Crabtree v. Bramble, 083, and see Wilson v. Coles, 3 Atk. 080. Where conversion is to take place at the request of certain persons, if the words of request are merely inserted for the purpose of enforcing the obligation to convert, although a conversion has taken place without consent, it will be considered to have been properly made. Thus, where the limitations are only adapted to real estate, a direction to lay out money after the request of persons, in the purchase of lands, will be construed as imperative, although no request may have been made, and there is a declaration, that until the purchase should be made, the money should bo placed out on securities, and a disposition of the dividends and interest in the meantime, to the same persons to whom the rents and profits of the estates to be purchased would go. In fact, as observed by Sir W. Grant, M. R., in reference to the force of the words "after request:" ''Nothing is more common than to direct money to be laid out upon request. The object of that is, only to insure that the act shall bo done when the request is made not to prevent it until request:" see Thornton v. Hawley, lO^Ves. 129. See also the judgment of Hidchings, Lord Commissioner, in Symons v. utter, 2 Vern. 227, approved of by Lord Thurlow, in Pulteney v. Darlington, 1 Bro. C. C. 238; Lechmere v. The Earl of Carlisle, 3 P. Wins. 219; Costello v. O'Rorke, 3 I. R. Eq. 172; Wrightson v. Macaulay, 4 Hare, 487; Batteste v. Maunsell, 10 I. Eq. 97, 314; sed vide Stead v. Newdigate, 2 Mer.

530.

So whero

real property

at the request of A.

was vested in trustees upon trust and B. * and the survivor, and after 429

* 993

* 993

FLETCHER

V.

ASHBURNER.

their deaths at discretion, to sell and hold the proceeds upon trust for A. and B. successively for life, and then for the children equally. It was held after the deaths of A. and B. when there were three adult children living, that the trust for sale was not spent, the children not having elected to require a conveyance of the land, and that it could be exercised by the trustees without the concurIn re Tiveedie and Miles, 27 Ch. D. 315, rence of the beneficiaries.

and see Biggs v. Peacock, 22 Ch.'D. 284; Peters v. Lewes and East Gr instead Railway Company, 18 Ch. D. 429. Where, however, words, requiring the request or consent of parties to a sale are inserted for the purpose of giving a discretion
to them,
if the sale takes place without their request or consent, the proceeds of the sale will still be considered as ]and. [The doctrine of conversion is applied to all those cases in which a general intention of the testator is sufficiently manifested to give the donee the property in a condition different from that in which it exists at the time when it goes into effect: Bogert v. Hertell, 4 Hill, 4V2; Cowley v. Hartonge, 1 Dow, 361; Phelps v. Pond, 23 N. Y. 69; TazeThus in Davies v. Goodhew, 6 well v. Smith, 1 Randolph, 313.] Sim. 585, the sale was to be " with the joint consent and approbation of the husband and wife, and not without;''' conversion, therefore, in that case, was held to be not imperative, but at the option See also In re Taylor's Settlement, 9 of the husband and wife. Hare, 596; Huskisson v. Lefevre, 26 Beav. 157; Sykes v. Sheard, 33

Beav. 114. A person, however, whose consent or approbation to a sale is required, will not be allowed to delay it to another person's prejuLord v. Wighhvick, 4 De G. Mac. dice and to his own advantage. & G. 803; 6 Ho. Lo. Ca. 217; nom. Wightwick v. Lord. Where there was a mfre discretionary power to convert real property into personafty, and to distribute it amongst a class, and the trustees died after having made only a partial conversion, the discretionary power having been extinguished by their deaths, it was held, that the class, or their representatives, must take the respective estates as they found them: Walter v. Maunde, 19 Ves. 424; Rich And see Shipperdson v. Tower, 1 Y. v. Whitfield, 2 L. R. Eq. 583. & C. C. C. 441; Polley v. Seymour, 2 Y. & C. 708; Cowley v. Hartstonge, 1 Dow, 378; Bourne v. Bourne, 2 Hare, 35: Edwards v. Tuck, 23 Beav. 268; Lucas v. Brandreth, 28 Beav. 273; Yates v. Yates, 28 Beav. 637; Re Beaumont's Trusts, 32 Beav.. 191; Re Ibbitson's Estate, 7 L. R. Eq. 226; Miller v. Miller, 13 L. R. Eq. 263;

Atwell

v.

Atwell, 13 L. R. Eq. 23.

will be different where the power is imperative, and in [The imperative character may be impressed the nature of a trust. upon the trust either by the use of direct words of command or by a disposition of the property on such limitations as necessitates a change: Bispham's Eq. Sec. 311. ] Thus, in Grieveson v. Kirsopp, 2 Keen, 653, where a testator gave to his widow, " for the benefit

The result

430

FLETCHER

V.

ASIIBURNER.

* 094

and advantage of his children," power of selling his W. estate, and by a codicil be expressed himself in effect thns: "I do empower my wife to sell all my estates whatsoever. * and the [ * 99 money arising from such sale, together with my personal estate, she my said wife shall and may divideand proportion among my said children, as she shall think tit and proper, or as she shall direct by will." The widow died without having sold or appointed It was held, by Lord Langdale, M. El., that the power the estate. was in the nature of a trust for the children, and that, subject to such appointment as the widow might have made, the children were entitled in equal shares; and that the direction to sell, expressed as it was, operated as a conversion of the real estate, and that the children were entitled to take the money to arise from the sale as
1
|

son

personalty. See also Burrell v. Baskerfield, 11 Beav. 525; Nickis v. Cockhill, 3De G. J. & S. 622; lie Cooke's Contract, 4 Ch. D. 454; Ralph v. Carrick, 5 Ch. D. 984: 11 Ch. D. 873. A conversion of the land into money may be implied without any express words directing a sale. (See Mower v. Orr, 1 Hare, 475.) But in order to effect such conversion the intention must be clear. Cornick v. Pearce, lb. ill; see also Oreenway v. Greenway, 1 Gift'. 131: 2 D. & G, F. & J. 128; Affleck v. James, 17 Sim. 121; Murton v. Markbij, 18 Be'av. 190; Lucas v. Brandreth, 28 Beav. 273; Tait v. Lathbury, 1 L. 11. Eq. 174. ["But a mere declaration that the property shall be considered as converted is immaterial, for it is not the declaration but the duty to convert which creates the equitable charge: Adams on Equity, Sec. 136.] A double conversion may be directed leaving the notional character of the land unchanged. Thus, when land is directed to be sold and the proceeds invested in the purchase of land, it will be regarded as real estate though no sale has actually taken place. Sperling v. Toll, 1 Ves. 70; Pearson v. Lane, 17 Ves. 101. And if part of such land be sold, and the money not yet re-invested, the money will not pass under a devise of all the testator's interest in the land, if there is any part of the land unsold which would answer the description. Re Pedder's Settlement, 5 De G. Mac. & G. 890. Under the General Stamp Act (55 Geo. 3, c. 184, Sched. part 3), "money to arise from tho sale, mortgage, or other disposition, of any real or heritable estate directed to be sold, mortgaged, or otherwise disposed of," is liable to the payment of legacy duty. The question often, then, arises, whether the direction for conversion is absolute and imperative, or merely optional; for in the former case, the real estate is liable to the payment of legacy duty, even though it be not sold, in consequence of the person absolutely entitled, electing to take it, instead of the proceeds to arise from a sale (Attorney General v. Holford, 1 Price, 420; Advocate General v. Ramsay's Trustees, 2 Cr. M. & R. 224, n.; Williamson v. The Advocate- General, 10 C. & F. 1); while in the latter case, if the

431

* 996

FLETCHER

V.

ASIIBURNER.

trustees, in the exercise of their * discretion, leave the land unsold, the legacy duty will not attach: even although there bo a declaration in the will that the land is to be considered But it has been held, that it will do so if the trustees, personalty.

[*995]

in the exercise of such discretion, sell: Attorney- General v. Mangles, 5 M. & W. 120; and see Attorney -General v. Simcox, 1 Exch. Rep. However, notwithstanding those cases, it seems doubtful 749. whether the liability to the duty should depend upon any act of 20t3; and see cases cited, the trustees: In re Evans, 2 Cr. M. & and 1 Macq. H. L. Smith, General v. AdvocateThe & F. 14; 10 C.

Cas. 76.
Act),
s.

Now
29.

see the

16

&

17 Vict.

c.

51 (The Succession Duty

Although there is a power to sell, and a sale takes place, if it is effected, not under the power, but under the jurisdiction of the Court of Chancery, legacy duty will not be payable. Thus when a will empowered trustees, with the consent of A., to sell real estate, and to invest a sufficient sum to answer to annuities; the rents beiDg deficient to pay the annuities, the Court ordered a sale, and out of the produce, 20,000?. consols were purchased to provide for the anLegacy duty being claimed, on the corpus of the consols, nuities. claim it was held by Sir J.*Romilly, M. K, that the validity of the depended on the determination of the question, whether the sale had taken place under the general jurisdiction of the Court, or under the power in the will, and his Honor being of opinion that it took place under the jurisdiction of the Court, that no legacy duty was payable: Hobson v. Neale, 17 Beav. 178; Harding v. Harding, 2
Giff. 597.

And where powers of sale are given to trustees for variation of securities (Mules v. Jennings, 8 Exch. 830) for raising moneys for payment of debts, legacies, or other prior charges: Advocate- General of the prov. Smith (1 Macq. Ho. Lo. S. Ca. 760) for investment
ceeds "in the purchase or on mortgage" of other lands (Mules v. Jennings, 8 Exch. 830), and a fortiori, where they are simply directed to invest the proceeds in the purchase of real estate (Heal v. Knight, 8 Exch. 839, n.), the legacy duty will not attach, although a sale may have taken place, and the person beneficially entitled has elected to take the money in preference to its being in"The Crown," observed Alderson, vested in the purchase of land. B., "has no claim except where the money is handed over to a party by force of the ivill of the testator, not where the money is handed over under an arrangement in which the will of the devisee and the Mules v. Jennings, 8 Exch. 838. testator oo-operate." It was laid down by a writer having great experience on the subject, that it was clear that the proceeds of real estate which and distributed [ * 996 J a * testator by his will directs, to be sold as personalty will not be liable to probate duty upon the death of the testator although made expressly liable to legacy duty. Hanson on Prob. Leg. and Succ. Duty Acts, p. 147, 3rd ed.

432

FLETCHER V AS11BITRNER.

* 9!>7

the result, was also held to be the same where the direction contained, not in a will, but in a previous deed, if the direction is capable of being revoked or varied, and is not in fact carThus, in Matson ried into execution until after the owner's death. v. Swift, 8 Beav. 308, J. Swift conveyed fee simple estates to trustees upon trust by mortgage, sale, lease, or other disposition of the estates to pay certain debts, and the residue to himself, his executors, administrators, and assigns, and that without any claim or equity thereon, by or in favour of his heir or real representatives, notwithstanding the estates, or any part thereof, might remain unconThe* J. Swift died leaving a will. verted at the time of his death. It was held by Lord Langdale, M. estate was sold after his death. R., that no part of the produce was liable to probate duty. "In the present case," said his Lordship, "an actual conversion was required, and has, accordingly, been made since the testator's death,

And

to soil

is

and I am of opinion that the Crown is not entitled to any benefit from the conversion so made, and that the interest of the deceased in the property was not subject to the probate duty, because, in fact, the interest of the deceased existed in the form of an equitable interest in land of inheritance and not in the form of personal estate. in which form alone the administration of it could be granted by the
probate.

And it has been held that the proceeds of real property sold under the Settled Estates Acts and not yet actually converted into realty, have not become personal property in respect of which administration can be granted: In re The Goods of Mttry Frances Lloyd, deceased, 9 P. D. 65. It has, however, been decided that land directed by a testator to be absolutely converted into money results to the heir-at-law in consequence of a failure of some of the trusts as personalty although there may have been no actual conversion, it will as personalty be liable to probate and legacy duly upon the death of the heir-at-law. The Attorney -General v. Lomas, 9 L. R. Exch. 29. And where a testator enters into a binding contract to sell land, and dies without receiving all the purchase money, such part of it as is received by his executori is liable to jwbate duty, because it was received by them as part of the testator's personal estate. The Attorney- General v. Brunning, 8 Ho. Lo. Ca. 243, reversing the decision of the Court of Exchequer, reported 4 Hurls. & N. 94. * And where a testator by will disposes of freehold pro- [ * 997 ] perty absolutely converted into personalty by a fcrmer settlement, it is clear that it will be considered as personalty, and be liable to probate and legacy duty, and that the will disposing thereof will bo entitled to probate: In the Goods of Gunn, deceased, 9 P. D. 242, and see Brourlgg v. Pike, 7 P. D. 01. And it seems the result would be the same where the conversion arises from the directions in the will alone: The Attorney -General v. Lomas, 9 L. R. Exch. 29. * 28 WHITE OX EQUITY. 433

* 998

FLETCHER

V.

ASIIBURNER.

It seems that Lord Penzance, in In the goods of Jane Bar den, 1 L. R. P. & M. 325, altogether refused to recognise the doctrine of With reference to this case Sir equitable conversion in his Court. J. Hannen (President) observed, "It seems to me that a very great change has been worked now by the fusion of all the Courts into There is no difference between the law to be administered in one. this division and elsewhere, but each Court i3 to ascertain what the law is, whether legal or equitable, and I think therefore, it is open to me to establish a different basis to that which existed in the Probate Court. I am of opinion that where freehold property has had "impressed upon it a changed character by reason of the doctrine of equitable conversion it is to be treated as personalty, and probate duty is payable, and it therefore follows that probate must be granted:" In the Goods of Gunn, 9 P. D. 244. Legacy and probate duty, moreover, as has been before shown, are, it seems, now payable on real estate notionally converted into personalty in equity, in consequence of its having been purchased with partnership capital, and used for partnership purposes in trade.

See Forbes v. Steven, 10 L. R. Eq. 178; Attorney -General v. Hubbuck, 10 Q. B. D. 488; 13 Q. B. D. 275, overruling what was supposed to be decided in distance v. Bradshaiv, 4 Hare, 315, and observations ante, p. 233. The question as to whether land is converted so as to be liable to legacy duty is not now of so much importance as it was formerly,
as real estate is

now

liable to succession duty: 16

&

17 Vict.

c.

51.

Of the period from which conversion icill be considered to commence.} Where absolute conversion is directed to be made by deed, if no time for it to be pointed out, it will take place from the delivery of the deed (Griffiths v. Bicketts, 7 Hare, 299; Clarke v. Frankling, 4 K. & J. 257). In the case of a will it will take place from the death of testator (Beauclerk v. Mead, 2 Atk. 167; see Ward v. Arch, 15 Sim. 389, Hidchin v. Mannington, 1 Ves. jun. 336), even although there may be a direction that a sale should take place "whenever it * 19 [ *998 ] should appear advantageous' (Bob/nson v. Bobinson, Beav, 495); unless it be directed to take place at another time, as for instance upon the death of a person entitled for life independently of the will Fitzgerald v. Jervoise, 5 Madd. 25. Until conversion actually takes place, the person to whom the interest of the proceeds of the estate directed to be sold is given, Thus, if will be entitled, in lieu thereof, to the rents of the estate. an estate be devised to trustees upon trust for sale after the testator's death, or after the death of A., and to pay the interest of the proceeds to B., for life; B. will be entitled to the rents and profits of this estate in the first instance from the death of the testa-tor; in the second from the death of A., until the sale of the estate takes place: Pearson v. Lane, 17 Ves. 101; Casamajor v. Strode, 19 Ves.

434

FLETCHER
3;)0 n.
is
;

V.

ASHBURNER.

* 999

Fitzgerald v. Jervoise, 5 Madd. 25, where the marginal note inaccurate; Miller v. Milter, 13 L. R. Eq. 203. When lands are directed to be sold and the proceeds to be invested in (be purchase of other lands to be settled to the use of a person for life without impeachment of waste, although there is a direction that the rents and lyrofits of the lands till sold, are to be to the use of the same persons who would be entitled to the lands to be purchased, the tenant for life cannot cut timber on the estate to be sold because if ho were allowed to do so on that estate as well as on that to be bought, he would have double waste: Plymouth v. Archer, \ Bro. C. CT 159: Barges v. Lamb, 16 Ves. 180. The conversion may bo mado by the owner to depend upon the option of third parties; as, for instance, trustees. And where a mortgage of freehold estate contains a power of sale, with a direction that the surplus moneys to arise from the sale shall be paid to the mortgagor, his heirs, executors, administrators, or assigns, if the estate be sold in the lifetime of the mortgagor, then the surplus moneys will be the personal estate of the mortgagor ; but if the estate be unsold at the death of the mortgagor, the equity of redemption devolves upon his heir or devisee; if a sale subsequently takes place, the heir or devisee, as the case may be, will be See Bourne v. Bourne, 2 Hare, 35. entitled to the surplus produce. There real estate was conveyed to a trustee, on trust to permit a mortgagor to receive the rents and profits, and upon payment of the principal and interest of the mortgage debt as therein mentioned, but to roconvey the estate to the mortgagor, his heirs and assigns if default should be mado in such payment, then that the trustee should enter into possession of the premises, and at his discretion sell the same, and pay over the residue or surplus (after payment * of the debt, interest, and costs) to the mort- [*999] gagor, his heirs, executors, administrators or assigns. There was default in payment, but no sale of tbe estate took place until after the death of the mortgagor, who devised it to the plaintiffs for Sir James Wigram, Y.-C, held, life, with remainder over in tail. that there was no conversion, but that the surplus proceeds passed by the devise as real estate. "If," said his Honor, "the trustee had taken the property with absolute directions to sell and convert it, the circumstance, that the directions had not been carried into effect at the death of the testator, might have been immaterial, and But in this case, there it might have been treated as personalty. was no absoluto or compulsory direction for the sale or conversion of the estate; it is merely an authority, in a certain event, to enter into possession of this estate, and at the discretion of the trustee to sell it, for the purpose of recovering payment of the debt for the The direction to reconvey the estate, in case of paymortgagee. ment of the mortgage-money, is inconsistent with the notion that there was any intention that the property should be absolutely conThe event upon the happenverted by the effect of tho conveyance.
;

435

* 1Q00

FLETCHER

V.

ASHBURNER.

namely,

ing of which the trustee might at his discretion have sold the estate the default in payment of the mortgage money took place in the lifetime of the testator; but the discretion to sell had The consequence is, not been exercised at the time of his death. that the estate passed to his devisees as realty, subject to the mortgage, and the trustee must therefore account to the devisees for the See also Wright v. Rose, 2 S. & S. surplus proceeds of the sale." 323; Clarke v. Franklin, 4 K. & J. 2G0; Re Coopers Trusts, 4 De G. Mac. & G. 768. Where, however, the sale of the mortgaged estate takes place; (although after the death of the mortgagor) under a trust for sale, on default, and the trusts of the purchase-money after payment of principal, interest, and costs, are declared in favour of the mortgagor, his executors, administrators or assigns, the personal repreSee In sentatives of the mortgagor will be entitled to the surplus. re Underwood, 3 K. & J. 745. And the result will be the same where the ultimate trust of the surplus is in favour of the mortgagor "his heirs, executors, adminJones v. Davies, 8 Ch. D. 205. istrators or assigns:" So, likewise, conversion may be made to depend upon the option to purchase at a future time, which when exercised after the death of the owner of the estate, will, at any rate as between his real and personal representatives, have a retrospective operation, to the. time when the agreement giving the op[*1000] Hon was entered *into. Thus in Lowes v. Bennett, 1 Cox, 167, Witterwronge, in 1758, demised a farm to Douglas, his executors, administrators and assigns, for seven years, and there was an agreement endorsed upon the lease, that if Douglas should, before the 29th of September, 1765, give notice in writing of his wish to purchase the inheritance of the premises for 3000Z., Witterwronge agreed to sell and to Witterwronge died execute to him a proper conveyance thereof. in 1763, having by his will devised all bis real estates to the defendant Bennett, and all his personal estate to the defendant Bennett-, and to the plaintiff Mary, the sister of the defendant In 1762, Douglas assigned Bennett, equally as tenants in common. the lease, and the benefit of the agreement to Waller, and on the 2nd of February, 1765, Waller called upon Bennett to perform the contract entered into by Witterwronge, for the sale of the premises for 3000/., and he accordingly executed a conveyance to Waller in Bennett having died, a bill was filed by Lawes, the husband fee. of Bennett's sister, against the personal representative of Bennett, claiming a moiety of the 3000Z. and interest, and Sir Lloyd Keny on, M. R., decreed accordingly. "It is very clear," observed his Honor,

"that if a man seised of a real estate contract to sell it, and die before the contract is carried into execution, it is personal property of Then the only possible difficulty in this case is, that it is left him. It to the election of Douglas whether it shall be real or personal.

436

FLETCHER
seoms to

V.

ASIIBURNER.

* 1001

me to make no distinction at all. Suppose a man should bargain for the sale of timber, provided the buyer should give proper security for the payment of the money. This when cut down would be part of the personal estate, although it depends upon the buyer whether he gives security or not; when the party who has the power of making the election has elected, the whole is to be referred back to the original agreement, and the only difference, is, that the real estate is converted into personal at a future period. ... I must, therefore, declare this 3000& to be part of the
personal estate of the testator,

and that the

plaintiffs are entitled to

one moiety thereof." And where a lessee has the option to purchase for a fixed sum, the termination of the lease by the happening of a certain event
prevent the exercise of the option: Edwards v. West, 7 Ch. D. 858, 800. It seems, however, that the doctrine laid down in Lawes v. Bennett (1 Cox, 167) will not be extended, and that where an option is given to a lessee to purchase, conversion as between vendor and purchaser will only take place from the time when the op,* See Edwards v. West, 7 Ch. * 1001 tion has been exercised. [ ] There, under the terms of a lease the landlord D. 858. covenanted to insure for 14,000?., and the tenant had- the option at a fixed time to purchase for 15,200/. There was no stipulation whatever (except in a contingency which did not happen), with regard to the insurance moneys. Before th'e time for exercising the option, the buildings demised were burnt, and the landlord received from the insurance offices nearly 12,000Z. for the damage done. The tenant then exercised his option to purchase, and claimed the insurance money as part of his purchase, on the ground that the option to purchase when exercised related back to the time of the contract giving the option, since which it was argued the property had been partially converted into personalty by the fire and the receipt of the insurance money, and that the purchaser was entitled to it in that shape. It was held, however, by Fry, J., that the purchaser had no claim to the insurance money. His Lordship being of opinion that conversion according to general principles cannot relate back to an earlier date than that of the contract constituted by the exercise of the option, that although he should follow Lawes v. Bennett (1 Cox, 167) in a case between real and personal representatives of the person who granted the option, nevertheless, as that case, according to the language of Lord Eldon in Townley v. Bedwell (14 Ves. 591 ), and of Kindersley, V.-C, in Collingwood v. Row (3 Jur. N. S. 785>, was not consistent with the general principles applicable to cases of conversion, he did not think that he was at liberty to extend the doctrine laid down in Lawes v. V>\ nnett, so as to imply that there was a conversion from the date of the contract giving the option as between vendor and purchaser. "In the events which have happened," added his Lordship, "the parties have
will not

437

* 1002

FLETCHER

V.

ASHBURNER.

maintained absolute silence as to what was to be clone with the money. am therefore to infer that there was a contract that the money should be held for the benefit of the possible purchaser. I do not think that I can draw any inference from that silence, and I think that when we look at the nature of the option we see that there is no hardship whatever in not drawing such an inference. In the events which have happened, the purchaser has this quesIs it worth my while to buy the premises, or tion to ask himself: If it is worth his while to buy them at is it not worth my while? the price fixed upon, he buys them; if it is not worth his while, he leaves them." In Reynard v. Arnold, 10 L. R. Ch. App. 386, uuder the terms of a lease the tenant was bound to insure against fire, and it was agreed that all moneys recovered under the insurance should be * 1002 ] * applied in reinstating the premises, also that the tenant [ should have an option of purchasing the property. He The premises were damaged by fire, insured in a sufficient sum. and it then appeared that the landlord had a policy on the premises The two offices in another office, of which the tenant had no notice. apportioned the amount of loss between the two policies, and the landlord received what was thus payable under the policy affected by him. The tenant shortly after the fire gave notice to exercise his option of purchase, and proposed that the insurance moneys under both policies should go in part payment of the purchase-money. The landlord claimed to retain for his own benefit the money received under the policy affected by him, and insisted on the money under the other policy being applied in reinstating the premises, and on the tenant declining to do this brought ejectment against It was held by the Lords Justices, affirming the decision of him. Malins, V.-C, that the landlord was not entitled to retain for his own benefit the moneys received under the policy effected by him, nor to insist on the moneys being applied in reinstating the property,
It is said that I

had exercised his option of purchase. With regard to this case it is obvious that the money which the lessor had received from the insurance office was the measure of the injury which he had done to the lessee by diminishing his rights to See observations of Fry, J., in Edwards receive under his policy.
after the tenant

West, 7 Ch. D. 864. Until, however, in such a case the option to purchase is exercised, the rents and profits will go to the persons who were entitled to the Thus in Townley v. Bedproperty up to that time, as real estate. well, 14 Yes. 591, the testator in the cause granted a lease to Townley for thirty -three years, with a proviso that "if Townley, his exev.

cutors, administrators, or assigns should be desirous to purchase the premises within six years, he, his executors, administrators, or assigns, should pay to the testator, his heirs or assigns, 600Z. for the purchase, upon having a good title made to him, Townley, his

executors, administrators, or assigns."

The

testator died without

438

FLETCHER

V.

ASHBURNER.

* 1003

having devised the promises; and beforo tbo expiration of the lease, Townley declared his option to purchase according to tbo proviso. It was held by Lord Eldon, C. (though evidently with some reluctance), upon the authority of Lawes v. Bennett, that from the timo of the option, Townley was entitled to the premises, and that ho should pay interest upon the purchase-money, which money and interest ho held to be personal estate of tbo testator, and which ought to go to his next of kin, but that the rents of tbo premises, So in Ex parte [* 1003 until the * option, belonged to the heir. Hardy, 30 Beav. 206, a testator gave to his children in succession tbo option of purchasing his real estate, and in the meanwhile the rents were to be equally divided between them. Before an option had been exercised, and while some of the children were still infants, a corporation purchased part of the property for It public improvements under compulsory parliamentary powers. was held by Sir-John Ramilly, M. R., that the shares of the children who had died infants remained real estate, until the option had been exercised, and that, in the meanwhile, the income of the purchasemoney belonged to their heir-at-law. See also Collingwood v. Row, 3 Jur. N. S. 785, 20 L. J. (Ch.) 049, 5 W. R. 484, V.-C. K.; Goold v. Teague, 7 AY. R. (V.-C. W.) 84; Weeding v. Weeding, 1 J. & H. 424; Woods v. Hyde, 10 W. R. (V.-C. W.) 330. A speciiic devise, however, by name of the property, subject to the option, has been held to carry to the devisee the purchasemoney also when the option was exercised: Grant v. Vause, 1 Y. &
)

C. C. C. 580;

when,

and Emussv. Smith, 2 De G. & Sm. 722. So likewise instrument by which the option is given, thero is a direction that the purchase money is to be paid to the person who is See In re then owner of the estate, he alone will be entitled to it. Graces Minors, 15 Ir. Ch. Rep. 357, and the remarks of the Master of the Rolls in In re Crofton, 1 Ir. Eq. Rep. 204, and of Lord Rornilly, M. R., in Bowen v. Barlow, 11 L. R. Eq. 454. The question may arise, which was suggested arguendo in Lawes v. Bennett (ICox, 170), if the person having the option to purchase should release such option to the heir or devisee, whether a court of equity could afford any relief. There does not appear to be any express decision upon the point, but Sir Lloyd Kenya)), M. R., in his judgment, said he thought that a court of equity would give relief, "if it appeared to be done collusively to oust tbo legatee of
in the

his personal estate."

a person has an option given to him of purchasing land and the land is purchased for a larger sum by a company under parliamentary powers before the time for exercising the option arrives, the person having the option will be entitled to the difference between the price fixed for him and tbo sum given by the railway company. In Re 'ants Estate. 4 De G. & Jo. 503, reversing >. ('., 1 Giff. 12. See also Ex parte Hardy, :!<> Beav. 206. An option to purchase the fee simple of the premises given by a
at a lixed price,
(

Where

430

* 1004

FLETCHER

V.

ASIIBURNER.

covenant of the lessor to the lessee of a term of years, bis executors, and administrators, is attached to the lease, and will pass with See In re it to the personal representative of the lessee. * 1004 ] Adams and The * Kensington Vestry, 27 Ch. D. 394 there [ on the death intestate of the lessee, his heir-at law, who was also his administrator, nearly twenty years afterwards called on the devisee of the lessor to convey the fee simple to him, and a conveyance was executed accordingly, and the heir afterwards conIt was tracted to sell part of the property thus conveyed to him. held by the Court of Appeal, affirming the decision of Pearson, J. (reported 24 Ch. D. 199), that the option to purchase was attached to the lease and passed with it, that it consequently passed as part
;

of the lessee's personal estate to administrator, and that the administrator could not make a good title to the purchaser, unless the next of kin of the lessee would concur in the sale. If the lease in such a case had been simply assigned by the les-

see without any to the assignee.

more words, the option would have passed with it In re Adams and The Kensington Vestry, 24 Ch.
J.

D. 200, per Pearson,

Although Election to take property unconverted who may electS\ land absolutely directed or agreed to be converted into money, and money directed or agreed to be converted into land, will immediately be impressed with the character of the property into which each is respectively to be converted, still this notional conversion may be put an end to by an absolute owner, who, being sui juris, is competent to do so, electing to take the property in its actual state; and the Court will not direct a conversion against this election, because, when converted, he might immediately reconvert it; for, as is quaintly observed by Lord Cowper, in Seeley v. Jago, 1 P. Wms. 389, "Equity, like nature, will do nothing in vain. [A reconversion is where the directions to convert is countermanded by the parties Reconversion may take entitled to the property, or by act of law. place by act of the party, or, as it is termed, by election.] Upon the same principle, where trustees have a power to sell land comprised in a will or settlement, the cestui que trusts where the property has become vested in them absolutely, and they are sui juris, may by electing to take the property as it stands, put an [Where land is to be converted into entire end to the trusts. money, or money is to be converted into land, the notional conversion will subsist only until some cestui que trust, who is competent to elect, intimates his intention to take the property in its original
character.

The court will not compel a conversion against the will of the absolute owner; for should the conversion be made, he would immediately reconvert it: Lewin on Trusts, 1159 (Text Book Series).] (In re Cotton's Trustees and The School Board for London, 19 Ch. D. 624), but if they do not make such election the trustees may exer440

FLETCHER
cise the

V.

ASH BURNER.

* 1005

power, provided
if

petuities,

it be not obnoxious to the rule against ]nr on the construction of the will or settlement it appears to

have been the intention of the testator or settlor that it should be lb. then exercised, An infant cannot ordinarily elect (Carr v. Ellison, 2 Bro. C. G. 56; Van v. Bariicll, ID Ves. 102; Spencer v. Harrison. 5 (J. P. D. 97) but where the property is the subject-matter of a suit, upon the
;

certificate of the chief clerk, finding that

it is for the benefit of the infant to do so, the Court may elect for him: Robinson v. Robinson, 19 Beav. 494. [With-regard to election by infants the usual practice is to direct an inquiry what would be most beneficial to the infant. See Seton on Decrees, 933 930.] * lunatic cannot elect Ashby v. Palmer, 1 Mer. 296 [ *1005 J

Wharton, 5 De Gex, Mac. & G. 33. A feme covert cannot, except as to her separate property (Sharp v. St. Sauveur, 7 L. li. Ch. App. 343; In re Davidson, 11 Ch. D. 341) elect, by a contract or ordinary deed (Oldham v. Hughes, 2 Atk. 452; Frank v. Frank, 3 My. & Cr. 171; Spencer v. Harrison. But although, as observed by Lord Hardiuicke, in 5 C. P. D. 9 7). Oldliam v. Hughes, 2 Atk. 453, " a feme covert cannot alter the nature of money to be laid out in land, barely by a contract or

In

re

deed;

for, to

alter the property

of

it,

or course of descent, this

money must be invested in land (and sometimes sham purchases have been made for that purpose, and she may then levy a fine of
to her husband, or anybody else: there is away, without layiug the money out in land, and that is by coming into this Court, whereby the wife may consent to take this money as personal estate: and upon her being present in court, and being examined (as a feme covert upon a fine is), as to such consent, it binds this money articled to belaid out in land, as much as a fine at law would the land, and she may dispose of it to the husband, or anybody else; and the reason of it is this, that at law money so articled to be laid out in land, is considered barely as money, till an actual investiture, and the equity of this Court alone views it in the light of a real estate; and, therefore, this Court can act upon its own creature, and do what a fine at common law can upon land; and if the wife has craved aid of this Court, in the manner I have mentioned, she might have changed the nature of this money which is realised, but she cannot do it by deed." See also Henley v. Wt bb, 5 Madd. 407; Sisson v. Giles, 3 De G. J. & S. 014. The necessity of making the sham purchases, alluded to by Lord Hardwicke, caused much inconvenience, which was attempted to be remedied by 39 & 40 Geo. 3, c. 50, and subsequently by 7 Geo. 4, c. 45; but these statutes have been repealed by the Fines and Recoveries Act (3 & 4 Will. 4, e. 74), whereby a married woman, with the concurrence of her husband, can, by deed executed in compliance with its provisions, make her election to take or dispose of

the land, and give

also, of

it

doing

this,

441

'

100G

FLETCHER

V.

ASHBURNER.

money

See Sects. 40, 71, 77, and 1 Hayes' to be laid out in land. Intro" 4th ed. 180; see also Forbes v. Adams, 9 Sim. 462. So, likewise, a married woman may by a similar deed, as she former] v could by joining with her husband in a fine, elect to take real

(May v. Ropier, 4 Sim. estate directed to be converted into money. 360; and Briggs v. Chamberlain, 11 Hare, 69; Franks v. Bollans, 3 L. R. Ch. App. 717; Boivyer v. Woodman, 3 L. R. Eq. * "313; sed vide Habby v. Collins, 4 De Gex & Sm. 289), 1006 ] [
even though her interest be reversionary: (Tuer v. Turner, 20 Beav. 560); and the husband, it seems, would not be precluded from concurring in a deed,- by his having previously executed a deed in favour, of creditors, or have been made bankrupt and obIn re Jakeman's Trusts, 23 Ch. D. 344. tained his discharge. If there be a fund in Court impressed with the character of realty, a married woman, upon being separately examined, may elect Slandering v. to have it paid out to her husband as personalty. Hall, 11 Ch. D. 652. A married woman may, under the 7th section of the Lands Clauses Consolidation Act (8 & 9 Vict. c. 18), dispose of her reversionary interest in real property to a railway company, so as to convert the proceeds into personalty: Cooper v. Gostling, 4 Giff. 449. As to the right of a jointress to insist after a sale of the land on which it is secured, on reconversion: see Walrond v. Rosslyn, 11 Ch. D. 640. A person entitled (subject to a charge) to real property vested in

do

elect to take it as realty, and if he the decease of the person so electing, his heir will be entitled to the residue of the payment of the In re Gardner's Trust, 1 Eq. Rep. 57; Mutlow v. Bigg, 1 charge. [This election may Ch. D. 385; Meek v. Devenish, 6 Ch. D. 566. take place either by express declaration or by some act indicating a preference to enjoy the land in its actual state: Bailey v. The Allegheny National Bank, 104 Pa. St, 425.] The power to reconvert or elect to retain property in its actual state may be delegated by the settlor to trustees or others, but, it seems that they cannot exercise the power after the estate has become vested in persons absolutely entitled thereto. See Doncaster There, upon the marriage of the setv. Doncaster, 3 K. & J. 26. tlor, property was vested in trustees upon trust for conversion, with a power to the trustees to reconvert the same, or retain in its actual It state with the consent of the tenants for life, or the survivor. was held by Wood, V.-C, that the power ceased as soon as the property actually vested in the children, although one of the tenants See also Richw. Whitfield, 2 L. R. Eq. 583. for life was then'living. Where an estate is directed to be sold, and the money arising from the sale to be divided among several persons, all of them must concur in electing to take the estate unconverted, for none of them, as is laid down in the principal case, has a right to say that any

trustees
so,

upon trust for and the trustees

sale,

may

sell after

442

FLETCHER

V.

ASIIBURNER.

* 1007

part shall not bo sold, and elect to take his share in land; for, to allow election in such a case, would be injurious to the sale of the entirety: Deeth v. Hale, 2 Moll. 317; Smith v. Claxton, 4 Madd. 484, 494; Chalmer v. Brad lei/, 1 J. & W. 59; Trowerv. Madd. 134; Elliott * v. Fisher, 12 Sim. 505; [ * 1007 ] Knightley, Holkxetoj v. Radcliffe, 23 Beav. 163, 171; In re Davidson, 11 Ch. D. 341, 318. But if money bo directed to be laid out in land, to the use of several persons as tenants in common, any one of them may elect to take his sharo of tho money, for the residue of the money may be quite as advantageously invested in the purchase of land as the whole: Seeley v. Jago, 1 P. Wms. 389; Walker v. Denne, 2 Ves. jun.
182.

has been recently held that a person contingently entitled may, pending the contingency, elect to take the estate as realty, and such election will become operative upon the contingency happening before or upon his death: Meek v. Devenish, Ch. D. 566. The question, how far a remainderman can elect does not appear [A remainderman cannot elect so as to to be very clearly settled. effect the owners of prior estates: 2 Spence's Eq. 271; Snell's Eq. If, however, in the case of money impressed with the char162.] acter of land a remainderman were to elect to take it as money his election would be defeated upon the tenant for life electing to call for an investment in land, and if the remainderman died intestate, his heir-at-law would be entitled-upon the death of the tenant for life; Sisson v. Giles, 3 De G. Jo. & Sm. 614. It might, however, be supposed that if in such case the tenant for life died without having elected, the next of kin of the remainderman would be entitled; it seems, however, to have been laid down in a recent case that a person in the position of a remainderman, whoso interest in the nature of the property is uncertain, as being dependent upon tho option of the tenant for life, cannot elect in such a manner as to change its nature: see Sisson v. Giles, 3 De. G. Jo.
it

And

to the proceeds of real estate directed to be sold

& Sm. 614, whero Lord WeMbury, C, distinctly lays down the following very important proposition: that, '"in order to effect a reconversion, the parties directing it must be absolutely interested in tho property in question. If they had only a limited or defeasible interest, there could- bo no conversion." A remainderman may, however, by act inter vivos, or by will, dispose of property, either as real or personal, so that he describes it in such a manner as to show what he meant to pass: Lingen v. Sowray, 1 P. Wms. IT'J; Hewittv. Wright, 1 Pro. C. C. 86; Triquet v. Thornton, Id Ves. 345; Harcourt v. Seymour, 2 Sim. N. S. 12; Be Ske(j(js, 2 Do G. J. & Sm. 533; Stead v. Newdigate, 2 Mer. 531; Gillies v. Longland, 4 Do G. & Sm. 379; Be Steicart, 1 Sm. & G. 32; In re Pedder's Settlement, 5 De G. M. & G. 890. [An election must bo clear and unequivocal and of such a char443

* 1009
acter as to leave

FLETCHER

V.

ASHBURNER.
v.

no doubt of the intent: Beatty

Byers, 6 Harris

(Pa.), 105; Jones v. Caldwell, 97 Pa. St.. 442.] tenant in tail of money to be invested in land might, as against hisissue, whom he might bar by fine, elect to take it in its * 100S] * actual state, and upon his election immediate payment [ would be made to him by the Court (see Benson v. Benson,

ess

Wms. 130; Short v. Wood, 1 P. Wms. 470; Edwards v. Countof Warwick, 2 P. Wms. 173, and Cunningham v. Moody, 1 Ves. 176, overruling the decision of Lord Chancellor King in Eyre's Case, 3 P. Wms. 13; and Onslow's Case, lb. note (g)). But where there were remainders over, payment would not be made to the tenant in tail except by the consent of the remainderman, who could only be barred by a recovery: Trafford v. Boehm, 3 Atk. 440. 'Upon a bill by tenant in fee," says Lord Hardwicke, "the Court would decree it to be paid in money, because he might immediately sell the land and turn it into money, and the old rule was, that the Court would also decree it so upon a bill by tenant in tail, with remainders over. And thus it stood, till the case of Cohvell v. Shadwell, 1 P. Wms. 471, 485, where Lord Coicper held the remainderman should have his chance, as it could not be barred but by recovery, which required time, and would not direct it to be paid in money; and the accident of the death of tenant in tail in that case, before a recovery, showed the remainderman's interest in so glaring a light, But where the rethat* it has established the precedent ever since. mainder can be barred by fine, the Court will decree it in money.'' Cunningham v. Moody, 1 Ves. 176. It is not essential that the election by a tenant in tail alone, or a tenant in tail and the remainderman, should be made in a suit, for if the tenant in tail with remainder to himself received the money to be laid out in land from the trustees, or if the tenant in tail with remainder to a stranger, with the concurrence of the remainderman, received it from the trustee, the election will be effectually made: Trafford v. Boehm, 3 Atk. 448; Earl of Bath v. Earl of Bradford, 2 Ves. 590, overruling dicta in Pulteney v. Darlington, 1 Bro. C. C. 236; Pearson v. Lane, 17 Ves. 106. By the Act for the Abolition of Pines and Recoveries (3 & 4 Will. 4, c.*74, s. 71) it is enacted, "that money to be invested in the purchase of lands, to be settled so that any person, if the lands were purchased, would have an estate tail therein, shall, for all the purposes of this Act, be treated as the lands to be purchased, and be considered subject to the same estates as the lands to be purchased would, if purchased, have been actually subject to: and all the previous clauses in this Act, so far as circumstances will admit, shall apply to such money, in the same manner as if such money were directed to be laid out in the purchase of freehold lands, and such lands were actually purchased and settled." * When money has been paid into Court under the [ * 1009 ] Lands Clauses Consolidation Act (8 Vict. c. 18, s. 69), or
1 P.

444

FLETCHERS. A8HBURNER.

1010

nnder tho Leases and Sales of Settled Estates Acta (see ante, p. 982), for the purchase of lauds of which a person is tenant in tail, it has been held in some cases that the tenant in tail may obtain

payment

of the

money out

of court without executing a disentailing

deed (Inre The South Eastern Railway Company, 30 Beav. 215; lie Holden, 1 H. & M. 445; Re Holders Estate, 10 Jur. (N. S.) 308; Re Watson's Trust, 10 Jur. (N. S.) 1011; In re Row, 17 L. R. Eq. 300; hire Wood's Settled Estates, 20 L. R. Eq. 372; Ex parte Maunsell, 2 Ir. Rep. Eq. 32) the practice being in the Registrar's Office In re Row, 17 to have the petitions stamped as disentailing deeds L. R. Eq. 301. In other cases the order for payment lias been only mado condi:

upon the production to the Registrar of a properly executed disentailing deed (In re The Great Southern and Western Railway Company ; Ex parte The Duke of Leinster, 9 I. Eq. Rep. 482; Re Tylden's Trust, 11 W. R. (V.-C. K.) 809; In re Butler's Will, 10 L. R. Eq. 479; Jn re Broadwood' s Settled Estates, 1 Ch. D. 438; Re Limerick and Ennis Railway Company, 10 I. R. E. 06); and this appears now to be the settled practice In re Reynolds, 3 Ch. D. 61.
tionally
:

the person competent to be made either by 1. express declaration, or 2. by acts from which the Court will presume an election to have been made. [Hall v. Hall, 2 McCord, Ch. 269, 306.] 1. An express declaration to elect, though but slight (Wheldale x.'Partridge, 8 Ves. 236), if it be unequivocal (Stead v. Newdigate, 2 Mer. 531; RePedder's Settlement, 5 De G. Mac. & G. 890), may be made by parol (Edwards v. Countess of Warwick, 2 P. Wms. 174); Chaloner x. Butcher (cited 3 Atk. 685); Pulteneyx. Lord Darlington, 1 Bro. C. C. 237; Wheldale v. Partridge, 8 Ves. 236, overruling the dictum of Lord Harduicke in Bradishx. Gee, Arab. 229. Where a person entitled absolutely, or subject to a preceding life interest, [The doctrine of election is applicable to remote and contingent interests, as well as to those which are immediate and certain McQueen v. McQueen, 2 Jones' Eq. 16.] to a fund to be invested in tho purchase of land, bequeaths it by the description of so much money agreed to bo laid out in land, this bequest will shew and, a sufficient intention to elect to take the fund as personalty therefore, being divested of the real uses, it would, previous to the late AVills Act, 1 Vict, c. 26, have passed to the legatee, although the will was unattested but without such a particular interposition of the testator manifesting his intention, it would remain as land, and would consequently belong to the devisee or repre* See [ * 1010 ] sentative of the real, not of the personal estate. Pulteney v. Darlington, 1 Bro. C. C. 235, 236; 3 P. ^Yms. note (c), and cases there cited. So likewise a person absolutely entitled to land notionally conelect, election

How election may be made.] Supposing

may

445

''

1011

FLETCHER

V.

ASIIBURNER.

verted into money, will be held to have elected to take it in its present state, by a devise thereof as all his landed property at a par(Sharp v. St. Sauveur, 7 L. R. Ch. App. 343) espeticular place. cially if the devise thereof be to uses in strict settlement (Meek v. Devenish, 6 Ch. D. 573) and this a married woman may do with reSharp v. St. Sauveur, gard to property settled to her separate use And see In re Davidson, Martin v. Trimmer, 7 L. R. Ch. App. 343. 11 Cb. D. 341. 2. The presumption that a person has made an election will arise from very slight circumstances Pulteney v. Darlington, 1 Bro. C. C. 238; Van v. Barnett, 19 Ves. 109; Cookson v. Cookson, 12 C. & Thus, if a person keeps F. 121; Dixon v. Gayfere, 17 Beav. 433. land for some length of time unsold, a presumption will arise that (Ashby v. Palmer, 1 Mer. 301 Crabhe elected to take it as land tree v. Bramble, 2 Atk. 688; Inwoodv. Tivyne, 2 Eden, 148; Dixon v. Gayfere, 17 Beav. 433; Griesbach v. Fremantle, 17 Beav. 314; In re Gordon, 6 Ch. D. 531; In re Davidson, Martin v. Trimmer, 11 Ch. D. 341) even when legacies to be payable out of the proceeds of the realty are unpaid, if the assent of the unpaid legatees to the election be expressed, or can from their conduct be inferred (Mutloiv v. Bigg, 1 Ch. D. 385); and a fortiori where he has actually paid off a charge on such estate: Inre Davidson, Martin v. Trimmer, 11 Ch. D. [Caston v. Caston, 2 Rich. Eq. 1; Falton v. Moore, 1 Casey, 341. 468 Clay v. Hart, 7 Dana, 1; Stark v. Hunton, Saxt. Ch. 216.] But the presumption will not arise when a person has been in possession for a short time only, more especially in the case where In Kirkman v. Miles, 13 Ves. several are interested in common. 338, where the persons entitled to the proceeds to arise from the sale of land had entered upon and occupied it for two years, and neither they nor the trustees had taken any steps to sell the estate, nor had they made any requisition to the trustees for that purpose, Sir William Grant, M. R., held, " that only two years was too short See also Cookson v. Cookson, 12 C. & F. to presume an election." 121; Broumv. Brown, 33 Beav. 3 .'9; sedvidelnwoodv. Tivyne, 2 Ed. 148; Crabtree v. Bramble, 3 Atk. 688; Re Davidson, 11 Ch. D. 341. Nor will the presumption of election to take as realty arise, even where a person has been long in possession if he dies during the existence of a term, at the expiration of which the tenant had the opIn re Leu-is, Foxwell v. Leivis, 30 Ch. tion of purchasing the fee D. 654. But the presumption will be sufficient where the person entitled to the money to arise from lands to be converted, not only enters into the possession of the lands, but also takes into his custody the deeds without which the trustees could neither recover the estate, nor sell it thus in Davies v. Ashford (15 Sim. 44), real estates were, by marriage settlement, conveyed to trustees, in * 1011 ] trust to sell, and to hold the proceeds in trust *for the [ husband and wife for their lives successively, remain:
: : ;

446

FLETCHER

V.

ASIIBURNER.

* 1012

der ia trust for their children, remainder in trust for the survivor of there was no child of the marrithe husband and wife absolutely The husband survived his wife, and after the death consulted age. and they having his solicitors upon his rights under the settlement advised him that he was entitled to the wholo benelicial interest in the estate, ho got possession of the settlement and of 'the title-deeds, and remained in possession of them, and also of the estates, until It was held by Sir J.. Shadwell, V.-C, that ho thereby his death. " I admit," said his Honor, had elected to take the estates as land. "that tho settlement contained a clear trust for sale, which must have been exercised unless tho husband did some act which shewed that ho meant tho trust to be at an end, and to take the estates as It does not distinctly appear in whose custody the title deeds land. originally were ; but it is clear that there was a change in the possession of them, and that, the husband got them into his custody. Now, was not that, of necessity, a destruction of the trust for the trustees could not have compelled the husband to deliver up the deeds, and without doing so, they could not have made any Therefore, it seems to me, that, by effectual sale of the estates. consulting upon his rights under the settlement, and then taking tho deeds into his possession (from whom or by what means he obtained them is immaterial), he made a clear election to take the esSee also Padbury v. Clark, 2 Mac. & G. 298; tates as land." Broivn v. Broivn. 33 Beav, 399; Sisson v. Giles, 3 De G. Jo. & Sm.
;
:

614
Although a person entitled to an immediate interest in lands directed by a will to bo sold has, by his acts, shewn his intention to reconvert and take them in their actual state, this doctrine will not be applicable to lands devised by the same will, if the direction to convert only comes into operation after a life interest still in existence, for he would not by his acts, with reference to tho lands in possession, have shewn his intention to reconvert those to which he was only entitled in remainder. See Meredith v. Vick, 23 Beav. 559. Where securities for monies were assigned to trustees, to be invested in land to be settled upon a man and his wife for life, with an ultimate limitation to tho man's right heirs; and the husband died after some of the money had been put out upon other securities in trust for him, "his execxdors and administrators," Lord Keeper Harcourt held, that the husband had elected to take the securities as personal estate, upon the ground that the placing the money out upon different trusts was an alteration of the nature of * 1012 ] it, since * tho testator's declaring the trust to his executors [

and

administrators, seemed tantamount with his having declared that it should not go to his heirs: Lingen v. Sowray, 1 P. Wins. 172. See alse Cookson v. Cookson, 12 C. fe F. 121; Harcourt v. Seymour, 2 Sim. N. S. 12. Upon the same principle, in the case of land to be converted into money, Lord Hardwicke held, that a grant of a lease, reserving rent

447

1013

FLETCHER

V.

ASHBIJRNER.

to the grantor, her heirs and assigns, was strong evidence of the intention of the grantor to elect that it should continue as land. His Lordship observed that the grantor had reserved rents to herself,

her heirs and assigns, and that it was said by the plaintiff's counsel that she could not do otherwise, and that it was very true that she could not; yet, though she could not reserve otherwise, there was equal reason in the present case to hold it as her intent that it should go to her heir, as in Lingen v. Souray (1 P. Wnis. 172), to the executors, and that would be sufficient to determine the question between the representative of the personal estate and the heir: Crabtree v. Bramble, 3 Atk. 680, 689; Mutloiv v. Bigg, 1 Ch. D. 385. See also Griesbach v. Fremantle, 17 Beav. 314. Upon the same principle it has been held that a new letting to a tenant from year to year, by a lessor entitled to the proceeds of land directed to be sold, will amount to an election, upon the ground that he would have been liable to an action by the tenant if the trustees had afterwards exercised the trust for sale, supposing that

thev had sold the estate and that the tenant had been evicted. In re Gordon, 6 Ch. D. 531, 537. Election may be presumed from many circumstances taken together. [A bare acquiescence, without a deliberate and intelligent choice made under a full knowledge of all the circumstances, and of the party's rights, will not be an election: Anderson's Appeal, 12 Casey, 476; Cox v. Rogers, 27 P. F. Smith, 167; Snellgrove v. Snellgrove, 4 Dessaus, 274.] In one case the fact that the person absolutely entitled to a sum of money to be invested in land (subject to a provision for his wife in bar of dower), had included such sum in a statement of his personal property found among his papers after his death, was held to be of considerable weight: Harcourt v. Seymour, 2 Sim. N. S. 12; and in another case the execution of a deed by the parties interested in such sum, describing it as monies they were entitled to receive, and trusts for investment in securities were declared, it was held to be a sufficient indication of their intention, to elect to take the sum of money in its unconverted state, although the trusts of the monies and securities were declared by reference to trusts of an instrument which assumed the conversion of the money into land: Cookson v. Beay, 5 Beav. 22, nom. Cookson v.
Cookson, 12 C.
[

&

F. 125.

the person absolutely entitled to money to be * 1013] laid out in land receives the money from the * trustees, he elects to take it as money: (Pidteney v. Lord Darling ton, 1 Bro. C. C. 238; Trafford v. Boehm, 3 Atk. 440; Rook v. Worth, 1 e p. 461 ;) but not where he receives the income, although for a considerable time: Gillies v. Longlands, 4 De G. & Sm. 372; Be Pedder 's Settlement, 5 De G. Mac. & G. 890. If trustees resist the demand of persons absolutely entitled to property to elect to take it unconverted, they may get an injunction to prevent the trustees selling the property, provided the neces-

Where

448

FLETCHER
Bary provisions be Ch. D. 571.

V.

ASUBURNER.

* 1014

made

for charges thereon:

Meek

v.

Devenish,

As to conversion in certain cases by the Court or third parties inWith regard to the real estate of dependently of contract or will] a bankrupt, vested in his assignees for payment of his creditors, it is clear that if any of it remain unsold before the death of tho bankrupt, and the creditors have been fully satisfied, it will go, in Bromley v. Goodere, 1 Atk. 75. case of intestacy, to his heir at-law. The result will be the same in the case of real estate conveyed to trustees for the benefit of creditors, and which remains unsold after they have been satisfied: Clissold v. Cork, 27 L. T. R. (N. S.) 143; 20 W. R. (V.-C.W.) 796; nom. Clissold v. C'ooA:. Should the real estate of the bankrupt bo sold or contracted to be sold in his lifetime, it will be considered as converted, and upon his death intestate his heir-at-law will not be entitled to it, though he will be so if the sale or contract for sale bo entered into after the death of the bankrupt: Banks v. Scott, 5 Madd. 493. Where conversion is rightfully made, whether by a court of com petent jurisdiction or a trustee, all the consequences of a conversion must follow; and there is no equity in favour of the heir or any one else to take the property in any other form than that in which it is found: per Sir G. Jessel,M. R., in Steed v. Preece, 18 L. R. Eq. 197. A wrongful conversion of property by trustees will nob affect the Thus, if real property bo wronginterests of the cestui que trusts. fully converted into personalty, or personalty into realty, each property so converted will be considered to retain its original character. AVhen, however, conversion takes place by the direction of a court of competent jurisdiction in Lunacy or Chancery (which must be presumed to have acted rightfully and lawfully, In re Mary Smith, a lunatic, 10 L. R. Ch. App. 84), the result, as will be hereafter seen, is different from tho case where conversion is wrongfully made by a trustee; and as there are no equities between the heirat-law and the next of kin, they will take the * properties [ * 1014 to which they are respectively entitled according to the character in which they find them. In the case of a lunatic, the Court will not in general alter the s.tate of a lunatic' 8 property so as to affect his successors; it will

it is for the benefit of the lunatic himself; and in dealing with the property of a lunatic this principle is continually borne in mind by the Court. This is well laid down by Lord Loughborough, in the leading case "In the series of of Oxenden v. Lord Compton, 2 Ves. jun. 72. orders," says his Lordship, "made by persons charged with the custody of lunatics there is one general principle, though I do not say it is without some possible deviation, that the general object of tho attention of the administrator is solely and entirely the interest of

however do so when

* 29

WHITE ON EQUITY.

449

* 1015
the lunatic himself,
tate, solely

FLETCHER

V.

ASHBURNER.

the management of the esthe owner without looking death, may have an eventual be more dangerous or mischievious.than for him to consider how it would affect the successors. There will always be among them an emulation of each other; and their speculations, if the administrator was to engage in them, would mislead his attention and confine his observation as to the interest of the only person he is bound to take care of. The next of kin would contend for a short allowance. The heir would have no interest to contend for a short allowance out of the rents and profits, but might have an emulation against the next of kin and, therefore, where the next of kin would contend for a narrow allowance, the heir would insist on a large one. Therefore the Courts have always shut out of their view all consideration of eventual interests, and consider only the immediate interest of the person under their care. If the interest of succession were to be respected by the Courts, I should expect not only precedents, but a continued course of accounting, that would manifest it to be the obThere would be a continject of the attention of the Chancellor. ued running account between the personal and real estate."

and with regard to and entirely the interest of to the interests of those who, upon his right of succession, and nothing could

Acting upon this principle, if an application were made to sell a part of the real estate of a lunatic for the payment of debts, if the Courts found that the maintenance of the lunatic would be better provided for, and his advantage promoted, by disposing of a real estate, inconvenient and ill-conditioned, and that it would be for the benefit of the lunatic so to pay the debts, and keep together the personal estate, the Court would have no difficulty in * 1015 ] making an order upon such an application: * per Lord [ Eldon, in Ex parte Phillips, 19 Ves. 124.

So a case has occurred of a lunatic, seised ex parte paterna of estate A., and ex parte materna of estate B., the latter being subject to a mortgage; and timber cut upon A. having been applied in discharge of the mortgage upon B., it was on a question between the heirs held that A. was not to be recouped: per Lord Eldon, C, See, however, Be Leeming, parte Phillips, 19 Ves. 123, 124. in

Ex

7 Jur. N. S. 115; 3

De

G. F.

&

Jo. 43.

So timber may be ordered to be cut on a lunatic's estate, and applied in payment of debts or redemption of the land tax: Ex parte
457;
Bromfield, 1 Ves. jun. 455, 457 Sevan's Case, cited 1 Ves. jun. 455, Ex parte Phillips, 19 Ves. 118.
;

And the produce of timber cut and sold by the order of the Court on a lunatic's estate, although it may not be wanted for any particular purpose, will be considered on his death as part of his personal assets: Ex parte Bromfield, 1 Ves. jun. 453; S. C, 3 Bro. C. C. 510; Oxenden v. Compton, 2 Ves. jun. 69; S. C, 4 Bro. C. C. 231; Ex parte Phillips, 19 Ves. 118, overruling the dictum of Lord
450

FLETCHER

V.

ASHBURNER.
v.

* 1016

Hardivicke in Marquis of Anandale

Ves. 384.

Marchioness of Anandale, 2

Where it is for his benefit, the personal estate of a lunatic will be laid out by the Court on necessary expenses of his real estate, such as for repairs (Sergeson v. Sealey, 2 Atk. 414; Ex parte Grim-stone, Arab. 708; S. C, cited 4 Bro. C. C. 235, n., 2 Ves. jun. 74; In re Cr. 440), for renewals of leaseholds, or admisBadcock, 4 My. sions to copyholds (Ex parte Grimstone, 2 Ves. jun. 75, n. ; but see Degge's Case, cited 4 Bro. C. C. 235 xx.), in an action of trespass relative to real estate (Oxertden v. Lord' Compton, 2 Ves. jun. 72 1, or

&

in improvements (Ex parte Grimstone, cited 2 Ves. jun. 75, n.), or in such an outlay as the erection of a fire engine in a colliery (Oxenden v. Compton, 2 Ves. jun. 73).

In some cases

it

has been held that where a mortgage on the

lunatic's real estate has been paid out of his personal estate, the next of kin had no claim as against the real estate for the amount expended in its exoneration (Ex parte Grimstone, Arab. 796; S. C, 4 Bro. C. C. 235, cited); in more recent cases the claim of the next See Weld v. Tew, Beatt. 272; Re Leeming, of kin has been upheld.

G. F. & Jo. 43; 7 Jur. N. S. 115. Court, however, in the exercise of its discretion in the management of a lunatic's estate, will not lightly, or when it is uncalled for, and even it is said only upon pressing occasions, change one species of property into another: Ex parte Bromfield, 1 Ves. * jun. 463, 3 Bro. C. C. 515; Oxenden v. Compton, [ * 1016 ] 2 Ves. jun. 76, 4 Bro. C. C. 234; Ex parte Grimstone, cited 4 Bro. C. C. 235, u. Sergeson v. Sealey, 2 Atk. 414. In the case of the sale, mortgage, change, or other disposition of a lunatic's land, under the Lunacy Regulation Act, 1853 (16 & 17 Vict. c. 70), after answering the purposes for which the moneys have been raised, the surplus moneys are to be of the same nature and character as the estate sold, mortgaged, or otherwise disposed of.

De

The

(Sect. 119.)

The 1 24th section moreover gives power to the Court to direct the committee to sell or join in the sale or partition of the lunatic's land, and the legislature provides by the 185th section that the proSee In re Mary Smith ceeds of such sale shall be held as real estate. (a lunatic), 10 L. R. Ch. App. 79, in which case both money arising from the sale of part of a lunatic's estate, and also money being a gross sum payable by instalments for the right to take minerals for a certain term of years on another part of such estate (and which was considered equivalent to a sale and not a lease), were, after a confirmation of the transaction by the Court, held under the Lunacy Regulation Act to go as real estate to the heir-at-law of the lunatic. Secus, as to the proceeds of such sales, as the lunatic had concurred
sound mind. Bo. In a recent case, an order made in a partition suit, a share of reai estate belonging to a lunatic was sold, and the proceeds paid into
in while of

451

* 1017

FLETCHER

V.

ASHBURNER.

Court to the credit of the matter of the lunacy, but they were not

The lunatic died intestate, and carried to a real estate account. his administrator claimed the money as part of the trustee's perIt was held, however, by the Court of Appeal that the sonal estate. money retained the character of real estate, and passed to the lunatic's heir at-law: In Re Barker, 11 Ch. D. 241. And under the corresponding provision in 11 Geo. 4 and 1 Will. 4, c. 65, there having been no election to take them as personalty the surplus produce of a lunatic's real estate continued impressed with the character of realty:- In re Wharton, 5 De G. Mac. & G. 33. The surplus proceeds of mines opened and demised under the powers of 16 & 17 Vict. c. 70 (the Lunacy Eegulation, 1854), e. 131, not necessary for the lunatic's maintenance, are as between his real and personal represenatives to be considered as real estate (s. Surrenders may be accepted and new leases granted (s. 134), 132). and all fines, premiums and sums of money received upon renewal, and remaining unapplied for the lunatic's benefit will, as between his real and personal representatives, be considered as real estate, unless the lunatic be tenant for life only, and then the * 1017 ] * same will be considered as personal estate (s. 135). 2 [ Seton on Decrees, 741. Inasmuch as the 119th section of the Lunacy Eegulation Act, 1856 (16 & 17 Vict. c. 70), is restricted to land, as defined there in the interpretation clause, therefore, on a conversion by order in lunacy of a lunatic's j> ersona ^ estate, the surplus moneys will according to the old law retain their converted character: 2 Seton on
Decrees, 741, 4th Ed. In a recent case where the Court had directed the sale of shares (not coming within the definition of land), belonging to a lunatic, and invested the proceeds in a different manner, a bequest of the shares made by the lunatic before he was of unsound mind was held to be adeemed, and that they fell into the residue, as the Court in the order for the sale of the shares had not directed that the proceeds were to go to the same person as would have been entitled to the shares, and as the provisions of the Lunacy Eegulation Act (16 & 17 Vict. c. 70), extended only to land as defined in the interpreThe tation clause to the Act Jones v. Green, 5 L. E. Eq. 555. Lunacy Eegulation Act, 1853, does not enable the Court to charge l-and of which the lunatic is tenant in tail with the expenditure incurred on another estate of which he is only tenant for life, nor does it enable the Court to charge with that expenditure the inheritance of the latter estate: In re Vavassour (a Lunatic), 29 Ch. D.
:

306.

Committees of lunatics ought not to exercise their statutory powIn Be ers of sale without the consent of the Lord Chancellor. Wade, 1 H. & T\v. 202; In Re Taylor, 1 H. & Tw. 432. Under the 124th section of the Lunacy Eegulation Act, 1853, which en ables the committee with the sanction of the Court, when a lunatic
452

FLETCHER

V.

ASIIBURNER.

* 1018

is entitled with another person to a share of land, to concur with such other person in a sale as the Court may direct, the Court has no jurisdiction to authorise a sale to the owner of the other shares: In re Weld, a Lunatic, 28 Ch. D. 514; In re A. M. Woolhouse, a

Lunatic, lb. 515, note. If, however, the committees of a lunatic took upon themselves without leave of the Court for their own advantage to change the property of the lunatic, they would not be allowed to take advantage of their own fraud. Thus in Ex parte Ludlow, 2 Atk. 407, the committees of a lunatic's estate, who were entitled to it themselves after his death, laid out 25/. in buying timber for the repairs of barns, rather than take it from the estate, notwithstanding there was timber upon it proper for that purpose, Lord Hardwicke, C, held the committees liable to refund the 25/. to the personal estate. **I am of opinion," said his Lordship, "that committees of the real estate of a lunatic may exercise the same power over it in regard to cutting timber for repairs, as any discreet person who was the absolute owner might do. And, therefore, the committees of this estate must make good this sum of 25/. to the personal estate, for they ap pear tome to have done this merely with regard to their own interest,as the reversion of the real estate belongs to them.' And see Ex parte Bromfield, 1 Ves. 402; Anon. 2 Freem. 114; Awdley v. Aivdley, 2 Vern. 192; so in the case of In re Badcock, 4 My. & Cr. 440, Lord Cottenham said "that if money belonging to a lunatic were laid out in the purchase of land, or what would amount to the same thiug, in building a farmhouse, it would be right that the sum so laid out *should retain its character of per- [ * 1018 ] sonalty." And in a recent case the amount necessary for the repairs and improvements upon an estate of which a lunatic was tenant in tail was ordered to be raised by a mortgage thereof, although the sum necessary for the repairs and improvempnts of an estate of which he was owner in fee simple was ordered to be paid out of his personalty: hire Gist (a person of unsound mind), 5 Ch. D. 881. An estate tail, however, of a lunatic will not be barred in such a case further than is necessary for the purpose: In re Pares, 2 Ch D. 01; 12 Ch. D. 333. It seems, however, that if timber has been cut down on a lunatic's estate by a stranger tortiously, inasmuch as there has been no abuse of confidence, and the heir has no equity against the personal representatives, the timber or its proceeds will not be restored to the heir-at-law; Ex parte Bromfield, 1 Ves. jun 463, 3 Bro. C. C. 515. As to the jurisdiction of the Lord Chancellor to order the sale of the property of a lunatic not found such by inquisition, when it does not exceed 1000/. in value or the income thereof, 50/. a vear, see 25 & 26 Vict. c. 86, ss. 12 and 13. With regard to the conversion of the property of infants Lord Thurlow in one case said that "he could not distinguish between
1
''

453

* 1019

FLETCHER

V.

ASHBURNER.

lunatics and infants:" Ex parte Bromfield, 1 Ves. jun. 461, 3 Bro. C. C. 515. However, until the passing of the late Wills Act (1 Vict. c. 26), this distinction existed between an adult lunatic and an infant, an adult lunatic on his recovery always had, though by different modes, the same power of disposition both over his real and personal prop erty; to convert, therefore, ore species of property into another, would not injure the lunatic. An infant, however, before the passing of the late Wills Act, might dispose of personal estate before he attained the age of twenty-one, but he could not devise real estate The Court, therefore, would not conuntil he attained that age. vert his personalty into realty, because that would deprive him of a

power of disposition which the law gave to him over personalty; nor would it convert realty into personalty, because by so doing a power would have been conferred upon him contrary to the policy of the law: Ex parte Phillips, 19 Ves. 122; and see Witter v. Witter,
3 P. Wins. 99; Rook v. Worth, 1 Ves. 461; Sergeson v. Sealey, 2 Atk. 413; Ashburton v. Ashburton, 6 Ves. 6; Ware v. Polhill, 11 Ves. 278; sed vide Earl of Winchilsea v. Norcliffe, 1 Vern. 435; Inwood v. Twyne, 2 Eden, 152. Accordingly, it has been held that except in the case * 1019 ] of necessary expenses, such as for repairs (Ex *parte [ Grimstone, 4 Bro. C. C. note, 235), keeping up a house (Ex parte Grimstone, Amb. 708), paying for an estate devised to an infant in consideration of his paying the purchase money ( Vernon v. Vernon, cited 1 Ves. jun. 456), for which purposes the infant's personalty has been held to be applicable, no conversion of his property from one species to another would be allowed. Thus the proceeds of timber cut on the estate of an infant would, it seems, be considered as part of the realty, and descend to the heir: Tullit v. Tullit, Amb. 370, 1 Dick. 322; Ex parte Phillips, 19 Ves. 124; sed vide Ex parte Bromfield, 3 Bro. C. C. 516. A distinction was taken in the case of Mason v. Mason, cited Amb. 371, between the case of timber cut on the estate of an infant seised in tail, and an infant seised in fee, inasmuch as in the latter case the timber being taken as realty went to the infant absolutely, whereas, in the former case, if it were taken as realty, it might go to the remainderman, and it ought therefore to be taken as personalty. And Sir Tlwmas Clarke, M. B., in a subsequent case, allowed of the disSee Tullit v. Tullit, Amb. 371. tinction as taken in Mason v. Mason. Moreover, where the personal estate of the infant has been applied in paying off a charge or redeeming a mortgage, it has been ordered that it shall be considered as personal estate for the benefit of the infant. See Ex parte Bromfield, 3 Bro. C. C. 516; Seys v. Price, 9 Mod. 220; Tullet v. Tullet, 1 Dick. 323; sed ride Ex parte Grimstone, Amb. 708; Zoach v. Lloyd, cited 2 Vern. 192; Dennis v. Badd, cited lb. 193; and see Earl of Winchilsea v. Norcliffe, 1 Vern. 436. Lord Eldon, in a well-known case, says, "I have uniformly

454

FLETCHER

V.

ASHBURNER.

* 1020

it a rule, since I have sat here, where property of one nature has been applied for the benefit of an infant to property of another nature, to have an express provision, that if he shall not attain the age at which ho shall have a disposable power, the representative shall not be prejudiced in any degree by the act done by the Court in contemplation of the infant's benefit, in all the circumstances surprise or accident can throw round it: II "are v. Polhill, 11 Ves. 278. Even if the Court forgets to make such declaration the law is the same, and it is a matter of course to reform the order, because, says Lord Eldon, "The order does not create the right, but is a declaration of a pre-existing right so to have the property secured:" Ware In a case, however, where during the minorv. Polhill, 11 Ves. 278. ity of a tenant for life, of land, part of the income had been expended under the order of the Court in * improving [ * 1020 ] the property, Lord Ilomilly, M. R., held that the Court had no power to declare the sum so expended a charge on the property, even though the tenant for life died an infant and the order had been made in the presence of the remainderman: Floyer v. Bankes, 8 L. R. Eq. 115. In the case of descendible freeholds of ah infant the line of descent may be altered, by the act of a guardian of the infant, as by the re newal of a lease for lives of which the infant is seised ex parte materna, for the new lease being considered as a new acquisition, and vesting in the infant as a purchaser, will descend to the heirs ex parte paterna, as it is immaterial to the infant which of the heirs takes it. And it was said by Lord Hardwicke, C, "to be not like the case of an infant's personal estate turned into real; for the reason of that being still considered as personal estate, is, because of the different ages at which the infant might dispose of his personal and his real estate, and not out of favour to any one representative more than another:" Pierson v. Shore, 1 Atk. 480; Mason v. Day, Prec. Ch. 319. By the AVills Act, 1 Vict. c. 26, an infant has no more power by will over personal estate than over real estate; the reason, therefore, for the distinction, running through the decisions, between the conversion of the property of infants and lunatics, no longer exists; and it would seem, therefore, that where the Court for the benefit of an infant converts property of one description into property of another description, that, as in case of the property of lunatics similarly converted, it ought to go to the heir-at-law or next of kin, according to its character at the death of the infant. In the well-known cass of Dyer v. Dyer, 34 Beav. 504, timber which was deteriorating was cut by order of the Court, and for the benefit of the estate, on the property of an infant, who was equitable tenant in fee subject to an executory devise over in the event of his dying under twenty-one without issue. Ho afterwards died under twentyone without issue. It was held by Sir John Romilly, M. R., that the proceeds of the sale of the timber were the personal estate of the

made

455

* 1021
infant.

FLETCHER

V.

ASHBURNER.

"If," said his Honor, "the Court in administering the real estate of an infant, finds that it would be for his benefit to cut the timber, the produce belongs to him as personal estate, and the Court does not consider whether, if he dies in his infancy, his heir-at-law

or next of kin would take it; but it simply directs the timber to be felled for the benefit of the person who is then the owner of the fee Thereby so much of the realty is converted into personalty: simple. not when the order is made, but at the time when the tim* 1021 ] ber is severed. In my * opinion the fact of this young [ man having died before he attained twenty-one, no more alters the character of the timber or of the money derived from it, than if he had died two or three days after attaining twenty-one; nor does the fact that there is an executory devise over, in the event of his dying under twenty-one without issue make any difference. Now let us see if the cases are not consistent with this. In Oxenden v. Lord Compton (2 Ves. jun. 69), the Court in dealing with the estate of a lunatic, cut timber during his life. When it was severed it became personalty, and on the death of the lunatic as personalty went to his next of kin, and not to his heir-at-law." In this case it will be observed that the Master of the Rolls makes no distinction between timber felled by the order of the Court on the estate of an infant, and timber felled on the estate of a lunatic. This point, however, does not, according to the reports referred to, appear to have been argued before him. Where, however, during the life of a person having a limited interest, timber is directed to be cut on a settled estate, the proceeds of the timber will be considered as realty until some person absolutely entitled thereto elects to take them as personalty: Field v.

Brown, 27 Beav.
Secus,
if

90.

dermen
v.

made upon the application of the remainentitled in fee simple subject to the prior estate: Phillips Daycock, W. N., 1867, p. 54.
the order be

realty has been converted

recently much discussed, whether when by the Court or trustees for a particular purpose which does not exhaust the whole proceeds of the sale, the surplus is to be considered realty or personalty. Flanagan v. Flanagan (ante, p. 972) is in favour of the surplus being taken as perThe decision of Vice-Chancellor Shadwell in Jenny v. sonalty. Preston, 13 Sim. 356, appears to be the other way. And in a subsequent case, where under a decree of the Court more real estate had been sold than was necessary for payment of mortgage or other debts (which was the only object of the sale), the surplus was still held to retain the character of realty. See Cooke v. Dealey, 22 See also Lancaster v. Evors, 1 Ph. 349; Johnson v. Beav. 196. Webster, 4 De G-. Mac. & G. 484; Dyer v. Dyer, 34 Beav. 504. More recently, however, the case of Flanagan v. Flanagan, has been followed, and the cases of Jermy v. Preston, (13 Sim. 356) and Cooke v. Dealey (22 Beav. 196) questioned. See Steed v. Preece, 456

The question has been

FLETCHER

V.

ASIIBURNER.

* 1023

18 L. R. Eq. 192; there two persons, one an infant, the other adult, were entitled in Equity to real estate as tenants in common in A suit was tail, with cross remainders between them. instituted by trustees for administration * of the trusts [ * 1022 ] of the instrument under which these persons were entitled, and also asking for partition, and a decree was made by which (the Court being of opinion that a sale would be for the benefit of the infant defendant, and the adult defendant consenting) a sale was ordered. A sale was made under the decree, and the purchasemoney paid into Court, and upon further consideration the adult's sharo was paid to him, and the infant's share carried to his separate account. The infant afterwards died without having attained twentyone. Sir G. Jessel, M. R., after reviewing the authorities, held that tho fund in Court belonged to his legal personal representatives, and was not to be treated as realty. "The estate," said his Honor, "has been properly converted into money, and as between volunwhich both administrators and remaindermen are it has teers been laid down (Oxenden v. Lord Compton, 2 Ves. 00, 70) that they But then, it is said, must take the estate as they found it. Now, as to that, the case of that the decree was partially wrong. Flanagan v. Flanagan (ante p. 972) appears to me unanswerable. I am aware that the decision of Sir L. Shadivell in Jermy v. Preston (13 Sim. 356), and the decision of Lord Romilly, in Cooke v. Dealey In (22 Beav. 196), appear at first sight to be antagonistic to this. Jermy v. Preston the report does not state the trusts of the term, the estate subject to which had been sold; but counsel on both sides appear to have said that the Court had sold more than was necessary. How that could be is difficult to understand, for it appears from the report that the decree ordered a sale or mortgage, with the Master's approbation, of a sufficient part of the estates comprised in the term, and that the Master made a report approving of the sale, by which he must have found that a sufficient part was sold. "Again, the judgment in Cooke v. Dealey (22 Beav. 196) is based on a general principle assumed to have been laid down in Ackroyd v. Smithson (1 Bro. C. C. 503), viz., that the conversion of real estate

into personalty only takes eflect to the extent of the object required, and that beyond this the rights of the parties remain the same as if no conversion had taken place. But all that Ackroyd v. Smith -

son decided was, that a conversion directed by a testator is a conversion only for the purposes of the will," and that all that is not wanted for these purposes must go to the person who would have been entitled but for the will. It does not decide that if the Court or a trustee sell more than is necessary, there is any equity to reconvert the surplus for the benefit of the heir-at-law of As I have [ * 1023 the person entitled * at the time of the sale. already remarked, it is not necessary to decide that question now: but it seems to me that if a conversion is rightfully made, whether by the Court or a trustee, all the consequences of a con]

457

* 1024

FLETCHER

V.

ASHBURNER.

version must follow; and that there is no equity in favour of the heir or any one else to take the property in any other form than that in which it is found: and that the sole question to be considered in all these cases is, whether the estate has been rightfully or wrongfully sold." And see Batteste v. Maunsell, 10 I. B. Eq. 97,

&

314.

And where the Court in an action for administration in the exercise of its jurisdiction makes an order for the sale of real estate, the order itself even in the case of an estate belonging to an infant operates as an immediate conversion, and before any sale has actually

taken place: Hyett

v.

Mekin, 25 Ch. D. 735.

But where a decree ordering real estate devised in strict settlement to be sold for payment of debts, directed that if more were sold than was sufficient for that purpose, the surplus should be laid out in land to be settled to the same uses as the devised estate, the heir-at-law of the person entitled in fee to the devised estate under the ultimate limitation, was held entitled to the surplus as real estate: Fellow v. Jermyn, W. N., 28 April, 1877, p. 95. But in the case of persons under disability, so dying, an equity for reconversion arises by force of the Partition Act, 1868, s. 8, which incorporates the Settled Estates Act, ss. 23-25 (now Settled
Estates Act, 1877, ss. 34-36). See Foster v. Foster, 1 Ch. D. 588; there real estate, to a share of which infants were entitled, was sold unIt was held by Sir G. Jessel, der the decree in a partition suit. "All must be treated as realty. sale the of proceeds the that B., M. I decided in Steed v. Preece" (19 L. R. Eq. 113), said his Lordship, "was that if conversion is rightfully made, whether by the Court or a trustee, the consequences of conversion must follow, if there be no equity in favour of the heir or of any one else for reconversion. In the present case I think there is such an equity in the provisions of ss. 23 to 25 inclusive of the Leases and Sales of Settled Estates Act (19 & 20 Vict. c. 120) which must read as part of the Partition Act, 1868." The same result will follow in the case of the share of a person of unsound mind: Grimivood v. Battels, 25 W. R. 843; In re Barker,

17 Ch. D. 241, 244. As also of the share of a married woman who has died without electing to treat the property as converted (Foivler v. Scott, 19 W. R. 972) or without having done any act to affect her equity to a reconversion under the Settled Estates or Settled Land * *Act: Mildmay v. Quicke, 46 L. J. Ch. 667; 6 Ch. D. 1024] [
553.

the death, intestate, of the person entitled to the proceeds of the sale in its reconverted estate, the heir-at-law will be entitled thereto, as money and not as realty: see Mordaunt v. Benivell, 19 Ch. D. 302; there a decree for the sale of real estate having been made in a partition suit, the property was sold and the proceeds Three of the persons entitled to the shares in the paid into court.

On

458

FLETCHER

V.

ASHBURNER.

* 1025

property died intestate before the money was distributed, leaving their father their heir-at-law and sole next of kin. He took out administration to each of them, and then died intestate. It was held that the father took his children's shares of the money as their heir-at-law, but that he took them as money, and that on his death they passed to his personal representative and not to his heir-at-law. Where, however, in a partition action, an order for sale of a married woman's share of real estate is made with her consent under sect. 6 of the Partition Act, 1870 (39 & 40 Vict. c. 17) it operates as a conversion of such share into personal estate ( Wallace v. Greenivood, 10 Ch. D. 302), and if the proceeds of her share be under 200/. the Court will order the same to be paid out to her upon her separate receipt and upon an affidavit of no settlement, and will dispense with her separate examination as to her election to take the money as personal estate (ib.) not following: In re Shaw, 49 L. J. (Ch. ) 213. Where money is paid into court, the produce of real estate converted by compulsory powers under acts of parliament, as under the 09th section of the Lands Clauses Consolidation Act, it in general remains in court subject to the rights of the parties interested in it to have it reinvested in land, and it is to be considered as money or personal estate in court, subject to a trust to be invested in land, and therefore impressed with the quality of real estate (In re Stewart, 1 Sm. & G. 32, 39; The Midland Counties Raihcay Company v. Oswin, 1 Coll. 80; In re Taylor" s Settlement, 9 Hare, 590), until some act is done by the owner showing his election to take it as personalty: In re Horner's Estate, 5 De G. & Sm. 483; In re Stewart, 1
1

Sm.

&

Giff. 39.

it is not essential to the reconversion of the money paid into court under the 09th section, that the property should be in settlement, because the directions therein that such money is to be invested in the purchase of lands to be conveyed in the same manner as the lands taken "stood settled" means "stood limited," words applicable to an estate in fee of a person under disability: see Kelland v. Fulford, Ch. D. 491; there, lands of which an infant was seised in fee, and whose estate *was being [*1025] administered by the Court, were taken by a railway company, and the purchase- money paid into court, under the 09th sect, of the Lands Clauses Consolidation Act, and invested in conThe infant having died, intestate, it was held by Sir G. Jessols. sel, M. R, that the fund continued impressed with the character of real estate, and accordingly passed to the heir-at-law. Where, however, land had been taken by a company iinder the Lands Clauses Consolidation Act, from a person who was, and continued until his death, in a state of mental imbecility, but was not the subject of a commission of lunacy, and the money was paid into court, it was held by Lord Cranworth, V. C, after the death of the landowner, that the money was not to be reinvested in or considered as land, but to be paid to his personal representatives: his Lordship

And

459

* 1026

FLETCHER

V.

ASHBURNER.

being of opinion, that the money ought to be treated "as being paid by a party seised in fee and competent to sell." See Ex parte Flamank, 1 *Sim. N. S. 260. In the recent case however of In re Tugicell, 27 Ch. D. 309, Pearson, J., under similar circumstances, the money being in court and the heir of the lunatic being willing to confirm the sale, held that he was entitled to have the money, and that it ought not to be paid to the personal representative, who could make no title to the Jand, and his Lordship said that he must decline to follow the case of Ex parte Flamank, in which case he was utterly unable to follow Lord
in

Cranicorth's reasons. As to the question of conversion arising upon the construction of local Acts; see Shard v. Shard, 14 Ves. 348; Cramer's Case, 1 Sm. & G. 32; In re Taylor's Settlement, 9 Hare, 596; Midland Counties Railway Company v. Oswin, 1 Coll. 80; In re Harrop, 3 Drew. 726; In re Robertson, 3 Jur. N. S. 784; Dixie v. Wright, 32 Beav. 662; Re Skegg's Settlement, 2 De G. Jo. & Sm. 533; Cadmdn v. Cadman, 13 L. R. (Eq.) 470. By the Irish Church Act, 1869 (32 & 33 Vict. c. 42), every advowson, with perpetual right of presentation to a living in the Established Church in Ireland, was converted into personalty, viz., the rio-ht to receive the compensation which should be assessed by the Commissioners: see Frewen v. Frewen, 10 L. R. Ch. App. 610, where it was held that the executors of a testator and not the devisees of his livings were entitled to the compensation iinder the act. Questions have arisen with regard to moneys arising from insurance against fire of settled property, whether they were to be considered as the personalty of the party who had kept up the insurance or as real estate for the benefit of the parties en* 1026 ] titled to* the estate: see Warwicker v. Bretnall, 23 Ch. [ There, during the infancy of a tenant in tail of D. 188. freehold estates devised in strict settlement, part of which consisted of a corn mill let on lease, the rents were received by his mother on his behalf, and she thereout paid the premiums necessary for keeping up a policy which had been affected in her name for insuring The will contained no provision for fire inthe mill against fire. The mill having been burnt down, and it not being consurance. sidered for the benefit of any person interested in the settled estates It was held that the insurance moneys that it should bo rebuilt. belonged to the infant tenant in tail as his personal estate and were not treated as real estate for the benefit of all persons interested in See also Seymour v. Vernon, 18 Jur. 189; sed the settled estate. vide Parry v. Ashley, 3 Sim. 97, 100, and the remarks thereon in

Warwicker

v.

Bretnall, 23 Ch. D. 194.

was held to be otherwise where money was collected on "briefs" and given to the guardian of the infant for the special purpose of rebuilding on the property (Rook v. Warth, 1 Ves. 460), and where a person absolutely entitled to the insurance money 460

The

result

FLETCHER

V.

ASIIBURNER.
gift of
it

* 1026
to the re-

abandoned all claim to it, and in effect made a mainderman: Norris v. Harrison, 2 Madd. 208.

[Doctrine of Conversion Restated. The general principle on which the doctrine of conversion is based is that in equity when money is directed or agreed to be turned into land, or land is directed or agreed to be turned into money, equity treats that which was agreed to bo done or ought to be done as having been done, and puts upon tho property the character of the property into which it will iiltimately be converted: Parkinson's Appeal, 8 Casey, 455; Kane v. Gott,*24 Wendell, 641; Ellison v. Wilson, 13 S. & K. 330. Where the conversion is absolutely directed by deed it takes place from tho date of the deed, or rather from the date of the delivery of the deed, where it is directed by will it takes place from the date of the testator's death. Tho rule of conversion in respect to trusts, is that if an imperative trust is created, either for employing money in the purchase of land, or for selling land and turning it into money, of which a conversion is directed, it will be dealt with in equity during the continuance of tho trust, and for objects within the scope of the trust, as if the purchase or sale has been actually made. If there is an absolute direction to sell, it is not material that the time of sale if fixed, is If, however, the power of sale is discretionary, there is postponed. no conversion until it is actually exercised. Under this rule the points which require notice are that the converting trust shall be imperative and the limitation of the continuance and purposes of the conversion bo as to coincide with the continuance and purposes of the trust. If a settlor conveys real estate upon trusts for sale and directs the proceeds to be applied to certain purposes, some of which fail, whether the sale is directed in the lifetime of the settlor or after his decease, the property will to the extent to which the purposes fail, l'esult to the settlor as personal estate. The rule of conversion in respect to contracts is, that if a binding contract be made for the sale of land, such contract, though in point of fact unexecuted is considered in equity as performed, so that the land becomes the property of the vendee, and the purchase money that of tho vendor. If either of the parties die before the transaction has been completed the equitable right to the land or purchase money will devolve as real or personal estate. It is essential that the contract be a binding one and such as the Court wiil specifically execute; and also that the object for which conversion is assumed shall be within the scope of the contract. When a conversion is rightly made either by a court or the trustee, all the consequences of conversion must follow. Hocker v. Gentry. 3 Metcalfe (Ky.), 463; Peters v. Beverly, 10 Peters, 532; Ex jmrte McBee, 63 N. C. 332. Unless there is an equity in favor of reconversion Snell's Eq. 160; Bailey v. Alleghany Nat Bank, 104 Pa. St. 425.]
:

461

1028

ACKROYD

V.

BMITHSON.

* 1027

ACKROYD

v.

SMITHSON

(o).

Lincoln's Inn Hall, tth Marc7i,1180.

[reported 1 BKO.
c. c.

503.]

Resulting Trust on failure of the purposes for which ConverTestator gave several legacies, and sion has been directed.] ordered his real and personal estate to be sold, his debts and lega-

cies to be

paid out of the proceeds arising from

the sale,

and

the

residue thereof he gave to certain legatees, in the proportion of

their legacies.
tator.

Two of

the residuary legatees died, living the tes-

These shares are lapsed;

and so far as
to the

they are constitu-

ted of personal estate, shall go

next of kin, and so far as

they are constituted of real estate, to the heir-at-law.

Christopher Holdsworth, by his will gave (int. al.) to the defendants, Smithson and Ibbetson, their executors and administrators, 200/., in trust to put the same out at interest, and to apply the interest in bringing up the defendant Mary Bracklebank, then an infant, till twenty-one, the principal to be paid to her at twenty-one,
she died before twenty-one, then to be paid to her representative: and bequeathed to the Rev. Thomas Whittaker, 100/., to James Roberts and William Roberts 100/. each to Grace Ogle 200/.
and,
if
;

to George,

Ann, and

Phoebe Ogle, ber

children,

100/.

each;

to

Joseph Scurr, 200/,; to Benjamin Wright, 200/.; to Mrs. Molyneux, 400/.; to Hannah Close, 150/.; to William Hawkeswell, 100/.; to

Mary

Ross, 200/; to Joseph Marshall, 200/. all which legacies, together with other legacies given by his will, he directed to be paid
at the

end of

six

months
all

after his decease;

and the

said testator

* 1028

thereby gave ments, and hereditaments, * situate at the Bank, in the township of Leeds, with their appurtenances, and all his

his messuages, cottages, lands, tene-

real estate not thereinbefore devised,

and

all his
all

household goods
his personal es-

and furniture, plate, linen, stock i n trade, and

the notes of Lord Eldon (o) This report was copied by Mr. Brown from From Lord Kedesdale's MSS.

462

ACKROYD
tate,

V.

SMITHSON.

1029

whatsoever, unto the defendantB, Smithson and Ibbetson, their

administrators, and assigns, to hold the

heirs, executors,

same

to

them, their heirs, executors, administrators, and assigns for ever, in trust that they should, as soon as convenient after his decease, sell
all his said messuages, &c, for such price or prices as could be got for the same, and thereby to convert such real and personal estate so to them devised, and every part thereof, into ready-money, and by

and out of the money arising by such sale to pay all his debts, and funeral expenses, and charges of proving his will; and after payment thereof, and retaining to themselves 50Z. each, which he thereby gave them for their trouble, in trust out of such monies to arise as aforesaid, to pay all legacies and annuities thereby bequeathed, at the time and in the manner thereby directed; and if after such payments made, and putting out of the funds, as thereby
legacies,

directed, for raising the annuities thereby given,

his trustees from all charges, expenses,

and

loss

and indemnifying which might at-

tend the carrying the trusts of his will into execution, there should remain an overplus in the hands of the trustees, which he apprehended there would be to a considerable amount, he directed that they and the survivors of them should, within six months after the

same should be ascertained, pay the same unto his said legatees, Thomas Whittaker, James Roberts, William Roberts, Grace Ogle, George Ogle, Ann and Phcebe Ogle, Joseph Scurr, Benjamin Wright,
Mrs. Molyneux, H. Close, William Hawkeswell,

Mary Bracklebank,
testator

Mary

Ross, and Joseph Marshall, in proportion to their several and

respective legacies therein to

them bequeathed; and the

thereby willed and devised that two several sums of 250?. each, which he had therein directed to be put out on securities in the

and the interest arising therefrom M. Thackeray * and R. Gaunt [ * 1029 ] their respective lives, should, upon the several deaths of them, the saidM. Thackeray and R. Gaunt, be paid in the like proportions unto them his said several and respective legatees. Benjamin Wright and Mrs. Molyneaux died in the life-time of

names of

his trustees,

to be respectively paid to

the testator.

The bill was filed by the next of kin of the testator against the surviving legatees and the heir-at-law claiming the legacies given
to the deceased legatees, their shares in the overplus, and in the

two
of

sums

of 250Z. as lapsed

and become part of the personal

463

estate

the testator.

* 1030

ACKROYD

V.

SMITHSON.
10th July, 1778, when his Honor

(Sir

The cause came on at the Thomas Seivell), being

"Rolls,

of opinion that the surviving legatees

took the whole residue, in proportion to their several legacies, dismissed the bill without costs.

From

this decree the plaintiffs

appealed to the Lord Chancellor

Thurlow, and, the cause coming on to be heard before his Lordship. Mr. Kenyan attempted to support the decree.

But Lord Chancellor Thurlow being clear (without hearing much argument) that this was a tenancy in common in the residue, and
that, therefore, the shares of the legatees

who

died in the testator's

lifetime were undisposed of,

said the only question was, whether

sucb shares belonged wholly to the next of kin or to the heir-at-law. The Attorney -General (p), Mr. Madocks, and Mr. Selwyn (for the plaintiffs, next of kin), contended, that the testator had converted
his real estate into

money out and out

;

that he

had mixed two funds,

and made all personal estate that the cases, therefore, of Mallabar v. Mallabar (Cas. temp. Talb. 79), and Durour v. Mottaux (1 Ves. 320), must govern the decision here, and that the blending the funds distinguished this case from that of Digby v. Legard (cited 1 Bro. C. C. 501). Mr. Selwyn mentioned the cases of Flan[

* 1030

agan v. Flanagan Ashburner (1 Bro.

(cited 1 Bro. C. C. 500), Fletcher *

C. C. 497), and Ogle
v.

v.

Cook

(cited 1

Bro. C. C. 501).

Lord Chancellor Thurlow thought the two former

cases did not

apply, but being in general of opinion with the counsel for the next of kin, asked the counsel for the heir- at law upon what grounds

they could support his claim. Mr. Scott (q), for the heir-at-law, said, they claimed on his behalf such interest in the monies produced by the sale of the testator's real estates, as the

deceased residuary legatee would have been

;

entitled to,

they had survived the testator or so much of their shares of the overplus, now in the events which have happened, undisposed of, as is constituted by the produce of the testator's real That the heir-at-law is entitled to every interest in land not estate.
if

disposed of by his ancestor, is so much of a truism that it calls for no reasoning to support it. It is not necessary for the heir-at-law to deny that the intention of the testator has designed him nothing;
his intention has certainly been equally unpropitious to his next of
()
(q)

Alexander Wedderburne, Esq., afterwards Earl of Rosslyn. Afterwards Earl of Eldon, from whose notes this argument

is

taken.

464

ACKROYD
kin
;

V.

SMITHSON.

* 1031

but

it

is

heir should take

if

not enough that the testator did not intend that his he must make a disposition in favour of another:
:

he has not actually disposed of all his real estate, if he has not made an universal heir, the law will give such part of his real estate as he has not actually and eventually disposed of, even against his intention, and a fortiori in a case where he has expressed no intendeceased legatees produce of mere real estate, not blended with the produce of personal estate, it has been admitted, upon both hearings that the benefit of lapsed devises would, according to the case
tion, to the hseres natus.

If the interest of the

bad been an

interest in the

Digby v. Legard, and the principle of the case of Emblyn v. Freeman, Prec. Ch. 541, and of many others, have accrued to the heirIt is admitted, and cannot be denied, that where a testator at-law. directs real estate to be sold for special purposes, if any of those
of

purposes become incapable of taking effect, the heir-atlaw shall take because there is an end of the * disposi;

* 1031

tion

when there is an end of the]purposes for which it was made but it is contended here, the testator had not a special
;

inten-

but that he meant the produce of his real estate should be considered as personal estate; that he intended to convert it out and out;
tion,

that he has not kept the funds distinct, but that he has blended

them

so as to be incapable of being distinguished, and that the cases,

therefore, of

Durour

v.

Motteux, and Mallabar

v.

Mallabar, are au-

thorities in point, that the

We admit that whole fund is personal. a person may decide what shall be the nature of his property after his death, so as to preclude all questions between real and personal representatives.

But we insist, that if he has not actually and eventually so decided, they, upon whom the law casts the title to personal estate, can no more claim in a court of equity money
arising from the sale of land, than the heir can claim property ad-

mitted to be of a personal nature. As to the question of

fact,

whether

he meant that, in some event only, or that, in all events, the produce of his real estates should be considered as personalty, we admit
that,

in favour of his residuary legatees,

all

he meant to convert

the whole into personalty, in case

his residuary legatees should

eventually take the whole

but we contend, that he has intimated

no intention as
verts
it

to that part of the produce, as to

which his disposi-

tion in the event which has happened, has failed of effect.

He con;

you speak of his intention as to the but, as qualities of the property, which his legatees were to take
out and out, indeed,
if

* 30

WHITE OX EQUITY.

465

* 1032
to

ACKROYD

V.

SMITHSON.

such part of the property as, in the event, they have not taken, he has not determined upon its nature he never meant to deter mine upon its nature, as between his heir at-law and his personal
;

representative or nest of kin, because he appears not to have ad-

verted to the possibility of any events taking place, which would

give the one or the other an interest in his property, and he de-

other must take some part of

signed no part of his property for either. In the event, the one or but, to say he has made it all perit
;

sonal property, and that therefore the law

[

* 1032

* to the next of kin,

is

to apply an

from what was the testator's

must give it argument deduced intention in case events had

taken place which had not occurred, for the sake of proving a similar .intention, if circumstances happened directly contrary to those

To with relation to which only the testator framed his intention. argue from what the testator intended with respect to residuary legatees,

next of kin,
to

by way of proving that he intended the same in favour of his is to reason from a case in which intention is expressed, prove a like intention in a case which supposes the absence of in;

tention
if

though the

testator, therefore,

intended that his legatees,

they had lived, should take their respective shares of such part

of the general surplus as

tates as

was produced by the sale of the real esmoney, he has not declared any intention relative to its nature, in case that particular intent of his should be disappointed. In the event, therefore, which has happened, it is so much money undisposed of, arising from the sale of lands. Such money in this Court is land, and as such the heir claims it. Suppose all the fifteen legatees had died in the lifetime of the testator, would it not have been competent to the heir-at-law to have insisted in equity, that no sale should be made of the real estate? Would it have been possible to contend that, because the testator had blended the funds, in order to make a disposition which never took effect, and without a view to any other given circumstances, that he had therefore that, blended them, if, in the event, he had made no disposition
;

because he had made the real estate personal, to give it to his residuary legatees, and to disappoint his heir, he meant also to disappoint his heir, whether his residuary legatees did or did not, in the
event, take the benefit of that disposition
?

The

fact of his

having

blended the funds proves not a mere inattention, not mere

indiffer-

ence to the interest both of his next of kin and his heir-at-law, but Can that fact, then, be a it proves a purpose hostile to both.

466

ACKROYD

V.

SMITIISON.

1034

ground from whence to infer that, in a change of circumstances, he had a purpose of kindness and bounty to the next of kin, and * adverse to the interest of the heir only ? The [ * 1033 ]
reason of the intention ceasing, the intention should be The testator meant to change the legal qualtaken to have ceased.
ities of his

property,

when he meant
of his property

to alter the disposition

;

the law would

make

but

if,

in the event, the

which law

was to make the disposition of any part of the property, he meant, for aught that appears to the contrary (and something must appear to the contrary, to defeat the claim of the heir), that the law which

made
atees

the disposition should decide on the qualities of the property If, then, in case all the residuary legof which it was to dispose.

had died, the heir could have prevented a sale, is it to be said, that, because a sale must be made, he shall not have that part of its produce which the objects of the testator's bounty cannot take ? It is not true, that where it is necessary that a sale should be made, to effectuate the testator's purposes which are capable of taking effect, that such sale will convert the nature of that part of its produce which
cannot be applied according to the testator's intention. In the case of Emblyn v. Freeman (Prec. Ch. 541), the heir was held entitled to
liable to

from the sale of real estate, which the testator had made an appointment by note, concerning which he made no appointment and there a sale was necessary. In the case of Digby
200/. arising
;

v.

Legard, where the heir was held entitled to the benefit of the devise, lapsed by the death of one of five tenats in common, of money to be raised by sale of real estates in the lifetime of the
testator, the heir

could not possibly prevent a sale

v.

as to the cases

of Mallabar

v.

Mallabar, and Durour

Motteux, they can be conto the distinc-

sidered as authorities only by those

tion submitted above
;

who do not attend

they are so far from deciding the case, that

In Mallabar v. they establish no principle which applies to it. Mallabar, the real and personal estate are not blended by the terms
of the devise in the beginning of the will,
estate only,

which is a devise of real and that out of the monies arising and after therefrom, the testator's debts should be paid payment * thereof he devised, out of the remainder of [ * 1034 ] 500/. to the money, 500/. to his sister, Mary Bainbridge

upon

trust to sell,

his sister's two children that should be living at the time of his decease, equally to be divided

between them
:

500/. to his

nephew,

Nicholas,

who was

his heir at law

500/. to

be divided amongst the

467


* 1035

ACKROYD

V.

SMITHSON.

children of his late brother, James Mallabar, living at his decease.

Then
rest

follows the clause which was held to blend the funds " Item, after all my debts and legacies paid, I give and bequeath all the
:

and residue of my personal estate unto my sister Esther Mallabar, and appoint her executrix." The question was, whether there was a resulting trust for the heir, as to the money arising from the sale of the real estate, after payment of the debts and the several sums of 500?. The Court held, that the testator had made all his property personal or rather, it inferred, from the purpose of the testator, as far as that could be collected, from the will, that the testator meant by the residuary clause, to describe not only money strictly personal the Court inestate, but the money claimed by the heir likewise ferred this from the circumstance of the heir's having a legacy of 500/. out of that very money, and because, if a different construction was made, the sister, his executrix, to whom the testator clearly intended to give a beneficial interest, would have taken nothing but a
;
:

troublesome

office

for

if

the words, " the residue of the personal

estate," did not include this

money, the personal estate must have

been

first

applied to pay the debts and legacies, in exoneration of

the real estates charged therewith by the will, and the executrix

her.

would have had an office of trouble, without the benefit intended But, though the Court considered the surplus of the money as personalty, as between her (whom it held to be a residuary legatee) and the heir, to effectuate the testator's intention, c^oes it fol low that, if the testator had died intestate as to the surplus, as the testator here did as to a part of it, that the Court would have determined against the heir, in favour of the next of kin, in whose favour no such argument as to intention could * * have been urged ? 1035 If the residuary legatee had died in ] [ the testator's lifetime, the will must have had the same construction as if the residuary clause had not been inserted; for, where the residuary clause has no operation to any substantial purpose, it cannot be considered as a part of the will; if it had not been inserted, the devise of the real estate would have been a devise to pay debts and legacies merely. In such case, then, it is clear that, as to the surplus, there would have been a resulting trust for the heir; the debts and the sums of 500Z. being paid, the testator's intention would have been satisfied to the extent in which it could take There effect; there would then have been an end of the disposition. is no difference between such a case and the present case, except
468

ACKROYD
that, in that case, there is

V.

SMITIISON.
to

1036

surplus; here, there

is

no residuary legatee as none as to some part of it:

any part of the

is

there, there

general intestacy as to the surplus -here, a partial intestacy: but

the effect of a partial intestacy

must be the same

is to

as to the part, as

the effect of a general intestacy

the whole.

our

v.

Motteux

is

also a case between residuary legatees

all

The case of Durand the heirand

dis-

at-law.

There the testator gave

his real estates, to sell

pose of the whole with his personal estate, blending them for payof his will; he gave several legacies,

and funeral expenses, and performance and among the rest 1200Z., or thereabouts, whereof part was to be laid out in the purchase of freehold lands for charitable uses, some of which were confessedly within the Mortmain Act (9 Geo. 2, c. 30), and the rest determined to be so; the question was whether the 1200Z. should go to the heir-at-law, or Lord Hardwicke said, that he was of to the residuary legatees. opinion that the money which should arise by the sale of the real estate was turned into personal, and so intended by the testator, it plainly appearing that, by the description of all his personal estate he meant to include the whole in the residue, so that it is to be considered now as persona] estate; then it comes to this: a will is made in which there are several legacies, and the residue of the * personal estate is given away; one of the personal leg- [ * 1030 ] acies is void by law; the Court cannot say, for that reason, that he intended to die intestate, for giving the residue over includes everything, let it fall in by reason of the legacies being void,

ment

of his debts, legacies,

or lapsing in the life of the testator.

Nowhere the reasoning of the

grounded upon the testator's intention to give his residuary legatees everything which was not otherwise effectually disposed of. And the testator was held to have converted his real estate out and
Court
is

out into personal estate, to effectuate that intention; for the resid-

uary legatees could not otherwise take the 1200Z.

of kin

But

if

the resid-

uary legatees had died in the lifetime of the testator, and the next

had been called upon

to sustain the question against the heir,

the reasoning of the Court would not apply; arguments from intention in their favour could not be resorted to,

and the Court might

have

said,

and must have

if

said, that the testator

meant

to die intes-

tate as to the surplus,

there was no residuary legatee

It

named

in

his will living at his death.

could not in that case have been

all

said that the testator meant, by the description of

estate to include the whole in the residue,

his personal

and therefore the void

469

* 1037

ACKROYD

V.

SMITIISON.

legacy of 1200Z.

among
if

be considered as
in
it.

the rest, because the will, in that case, must nothing concerning the residue had been inserted
to

Here he meant

make one fund

of the whole, to effectuate

his intended disposition of the whole; but if subsequent events de-

feated that disposition, his intention in case

it

took

effect, is

no proof

that he had the

same intention in case it did not take effect. If there had been no residuary clause, and if the residuary legatees had been dead, it could have no effect, and therefore could not have been attended to. In Durour v. Motteux it would have been nothing more than a devise of real and personal estate for payment of debts, valid legacies, and Euneral expenses: it would have been then a disposition with a special intention: that intention being satisfied, there

would have been a resulting

if [

trust as to the surplus.

It is

said,

this

way

of

reasoning

was good,

it

would have
v.

* 1037

* entitled the heir to the 1200/. in the case of Durour

Motteux: for it was same sum should be considered as money only in case the charity took it that the testator never adverted to the event which happened viz. the residuary legatees taking it an event which he as
;

the testator's intention there, that the

little

thought of as he
is,

did of the next of kin's taking the residue.

The answer

the rule of law would not suffer, in that case, what

in this; the

no rule forbids

law says, where there

is

a residuary leg-

atee, the testator shall be presumed to whatever lapses, either by the death of the legatees, or whatever is So long as there is any person to not given according to law (r). take, who is declared by the testator to be preferred by him to those whom the law appoints to succeed him, the heir can have no claim.

mean

that he should take

If the testator spoke for himself

he would say, If

my

special inten-

tion of kindness to the charity

to

fails,

my

general intention of bounty

residuary legatee shall take place; but where the residuary legatee is removed, there is nothing like a declaration by the testator in favour of the next of kin, to entitle

my

them to succeed the residit,

uary legatees, as there

is

where there

is

a general residuary clause

in
to

in a will in favour of the persons

named

succeed the partic-

ular legatees; and to money arising by the be no claim in the next of his kin but what
tion of the testator; for, unless

sale of land, there can

arises

from the declara-

he directs or expresses that it shall We admit the heir must take it. personalty, the be considered as who can take persons any are to whilst there excluded be heir, then,
(r)

See Cambridge

v.

Rous, 8 Ves. 23; Slackford

v.

Long, 7

Ir.

Ch. Rep. 87.

470

ACKROYD'v. BJOTH0ON.
tho produce of tho real estate under the
tostator's intention:
will,

1038

the declaration of the

who make

wo deny

that ho is excluded by any

under the will, but in defect of the will: or that tho intention in the will can affect those who claim, upon the ground that there is no will which relates to tho subject. The case of Cruse v. Barley and Banson, beforo Sir Joseph -lekijll (3 P. Wms. 20),
their claim not

seems
that
it

to establish those principles, for

it

shows that where any part

* 1038

of the produce of the real estate is so given as to prove

was not the *

it

testator's intention, in case that part

should go to the residuary legatees, but that he has given them the residue exclusive of that part,
not go as undisposed personalty to the next of kin.
legatees cannot take for another reason

should lapse, that

it

shall

Why

should

the next of kin take, in preference to the heir, what the residuary

namely, removal by death

case was: William Banson, seised in fee of freehold and copyhold lands, which he had surrendered to the use of his will, and be-

Tho

ing

much indebted by mortgages, and having

all his

a wife and five chil-

dren, devised

freehold and copyhold lands to the defendant

sell for

Barley and his heirs, in trust to

first

the best price, and in the

place to pay off

all

his incumbrances

and his

debts.

He

also

devised his personal estate tc the same trustee, in trust to sell, and after the testator's debts paid, to apply the money arising by sale of
the personal estate, and also the
real estate,

among

his five children, in

money to be produced by sale of the manner therein after menall

tioned: to his eldest son 200/. at his age of twenty-one,

the rest

and residue thereof among his four younger children at twenty-one, and with benefit of survivorship. The eldest son died under twentyone; the question was, what was to become of the 200/? The Master of the Rolls thought it would not go to the youno-er children,

who were
that
all is

only to have the residue, but to the heir.

It

was objected,
arising

made

personal estate; the surplus of the

money

from the sale of the real and personal estate, is to go to the hzeredes facti. There could be no doubt, it was urged, if the eldest son had died in the testator's life, it would have been a lapsed residuum: but his Honor, after looking into precedents, declared for the heir, that it was the same as if so much land as was of the value of 200/. had not been to be sold, but suffered to descend. As to the case of Flanagan v. Flanagan, it is perfectly different from this; that was a question between the real and personal representative of a person entitled under the will of the testator. The land was sold under a
471

1040

ACKROYD

V.

SMITIISON.

1039

decree of the Court, in a cause in which the person, through whom both claimed, was party; * and the decree

had ordered the surplus, if there should be any, to be paid James Flanagan, the father, and James Flanagan, the son, The sale was made under the decree; and, the question equally. arising between the real and personal representative of Flanagan, the father, the Court determined the surplus should have the same nature with respect to them as the decree had given it with respect to Flanagan the father. In that case, too, the testator had, foreseeing that a sale could not be made which would produce the exact sum and no more, directed his trustees to convey the residue of the real estate which should remain unsold, or pay the produce of such part as should be sold, and all other the residue of his real estates between the father and the son. Scudamore v. Scudermore (Prec. Ch. 513) is not to this point: it
to

determines, that the representatives of a person entitled under a

will, shall

take money, as money or as land according as the person whose representatives they are would have taken it; but it decides nothing between the heir and personal representative of the testaThere is no case in which the next of kin have been tor himself.

considered as entitled against the heir, in the event of a lapse of the

whole or a part of the residue, except the case of Ogle v. Cooke (s), heard 19th February, 1748, which so far a3 it relates to this subject was this: Mr. Ogle made his will in 1744, and gave his real estate to trustees to sell and vest the money in stock, and pay the interest
to his wife

during her widowhood, and, after her death or marriage,

of his

the principal to his two daughters equally, except that the eldest

was

to

have 1000Z. more than the other: he gave the residue

personal estate in the same way.

ance, in trust to sell for

He afterwards
of his debts,

executed a conveyre-

payment

which was held a

of"

vocation pro tanto only, and part was sold.

One

the

daughters

died in Mr. Ogle's

life.

The

bill

eldest daughter, against the son, the heir,

the residue of the estate sold, [* 1040

was brought by the widow and the and the trustees, to have and claiming the share of the de-

ceased daughter as personal estate of Mr. Ogle, to be divided * between them and the son. The son insisted that

her share was to be considered as real estate: the Court dev. Wakeman, 2 Yes jun. 6HC>, where Lord Loughborough says. (s) that he had caused the Reg. Lib. to be examined, and it was found that the point supposed to have been decided by Ogle v. Cooke, was in reality left unIt is, therefore, no louger an authority. decided.

See Collins

472

ACKROYD

V.

BMITHSON.

1041

creed the residue of the estate to be sold, and that the

produce
it

should be considered as Mr. Ogle's personal estate.

into

Here

cannot

be denied, that the intention of the testator to convert this estate

money

for the sake of his daughters,

was taken to be

a suffi

cient

ground for the Court's considering the moiety, which in the

I >/<//>//

event was undisposed, as personal estate: but the case of

x,

and contradicts the doctrine of that case. The cases are not in any respect different, except in the numThe daughters, in ber of the persons interested in the produce. the case of Ogle v. Cooke, indeed, had an interest in the personal as well as real estate, which was not given in that of Digby v. Legard; but the funds are kept separate, and not blended, in Ogle
Legard
is

a later authority,

v.

Cooke.

The determination

in the

latter

case,

neither justified by principle nor by authority.

v.

we submit, is The ea*se of Ogle

in

Cooke,

admits the deceased daughter's moiety,

both

the

and personal funds, to be undisposed, but it supposes that the conversion, which the testator made with a view to a disposition, is Upon to take effect, though the disposition does not take effect.
real

the whole, tuted by

titled to

we contend

that, if the shares of the

deceased legatees
en-

in the overplus are undisposed, parts of those shares being consti-

money

arising from the sale of real estate, the heir

is

such part; that the intention of the testator, in the events

that have happened, does not destroy his claim;

and that

this is a

case to which the principles of the adjudications cited by the counsel for the next of kin,

do not apply.

Lord Chancellor Thurlow reversed the decree, and directed an account to bo taken of the personal estate, and the money arising from
the sale of the real estate, and that the share of the deceased legatees in the overplus should be divided

between the next of kin and the

heir; that

is,

so

much
of the

of those shares as

of the personal estate, to the next of kin,

as

was constituted and so* much

estate, to the

* 1041 ]

was made up

produce of the real

heir.

he fully approved the determination in Digby v. That he used to think, when it was uecessary for any purposes of the testator's disposition, to convert the land into money, that the undisposed money would be personalty; but the cases fully proved the contrary. It would be too much to say. that if all the
said, that

He

Legard.

legatees

had

died, the heir could, as

he certainly might, he

said,

473

* 1042

ACKROYD
sale,

V.

SMITHSON.

prevent a

and yet

to say that, because a sale

was necessary,

the heir should not take the undisposed 'part of the produce.
heir must stand in the place of the residuary legatees
the produce of the real estate.

The

who

died, as to

He

said,

he approved the distinction

as before.

made on behalf

of the heir,

and decreed

Since the case of Ackroyd v. Smithson, so celebrated for the elabargument of Lord Eldon, then Mr. Scott, it has never been doubted, that, where a testator directs real estate to be sold, and the produce of the sale to be applied for a purpose which either wholly or partially fails, the undisposed-of beneficial interest will result to his heir-at-law, and will not go to his next of kin, although See 2 Sethe land may have been actually converted into money. ton's Decrees, 911, 4th ed. [In the United States the rule under consideration has not received a construction so favorable to the heir. In Craig v. Leslie, 3 Wheaton, 563, it was said to be settled that if the intent of the testator appears to have been to stamp upon the proceeds of the land described to be sold, the quality of personalty, not only to subserve the particular purposes of the will, but to all intents, the claim of the heir-at-law to a resulting trust is defeated, and the estate is considered to be personal.]
orate

sale of land.] In disposition of the

Resulting trusts on failure of disposition of money to arise from Ackroyd v. Smithson, it will be observed that the money to arise from the sale of the real estate was originally complete, but a lapse by the death of two of the residuary legatees in the lifetime of the testator, caused the failure of the disposition as to their two shares, which, although actually converted into money, resulted to the heir-at-law as undisposed-of

real estate.

So likewise whero money impressed with the character of realty, passes under a generel devise, although there be a trust for sale, it will operate merely as a conversion for the purposes of the will, and upon a lapse of a share taking place on the death of one of the devisees, it will result for the benefit of the heir-at-law, and not the next of kin of the testator. In re Taylor's Settlement, 9 Hare, 596, 604. See also Salt v. Chattaioay, 3 Beav. 576. [See Thomas v. Wood, 1 Md. Ch. 296; Parkinson's Appeal, 8 Casey, 455; Ellison v. Wilson, 13 S. & R. 330; Arnold v. Gilbert, 5 "Barb. 190; Kane v. Gott, 24 Wendell, 641.] Upon the same principle, where a partial disposition [ * 1042 ] only is originally made of the money to arise *from the sale of land, the portion undisposed of will result to the heir-at-law: Robinson v. Taylor, 2 Bro. C. C. 589; Berry v. Usher, 11 Ves. 87; Wilson v. Major, 11 Ves. 205; Watson v. Hayes,
474

ACKROYD

V.

SMITIISON.

* 1042

Cr. 125. [In the United States the heir has no claim to 5 My. assert unless the will contains no residuary clause. If the subject matter of the bequest that fails, is personal propwill take all that results, for a general residuary bequest always carries every interest, whether undisposed of in the will, or undisposed of in any event: Vick. v. McDaniel, 3 How. (Miss.) 337; Marsh v. Wheeler, 2 Edw. Ch. 156; Swintonu Egleston, 3 Kick Eq. 201; Pool v. Harrison, 18 Ala.' 51,").] The same result follows where money arising from land directed Thus, to be sold is given over on an event which does not happen. in Jessop v. Watson, 1 My. & K. 605, a testator directed a mixed fund, composed of the produce of his real and personal estate, to be applied to certain specified purposes, and the residue to be divided equally among his children, or child, at twenty-one, if sons, and twenty- one or marriage, if daughters, and if there was no child who should become entitled under the trust to such person as he should by his codicil appoint. The testator died without having made a codicil, leaving an only daughter, hisheiress-at law, who died under twenty-one, intestate and unmarried. Sir J. Leach, M. 11., held, that so much of the residuary fund as was constituted of real estate descended to the heiress, and that so much as was constituted of personal property went to the next of kin. See, also, Fitch v. Hare, 145; Robertsw. Walker, 1 Buss. & My. 752. Weber, So, also, where land is directed to be converted into money, and the whole, or part, is given for a purpose which fails on account of illegality, the whole or part which, on this account, remains undisposed of, results to the heir-at-law. [If the residuum is itself given upon a trust that fails, it then results to the next of kin or heirs. Perry on trusts, Sec. 100; Frazier v. Frazier, 2 Leigh. 042; "Woolmer's Estate, 3 Wharton, 477; Floyd v. Barker, 1 Paige, 4S0.] As, for instance, where money, to arise from the sale of land, is given to a charity, and the gift is void according to the Statute of Mortmain (9 Geo. 2, c. 36) Attorney- General v. Lord Weymouth, Amb. 20; Jones v. Mitchell, 1 S. & S. 294; Hopkinson v. Ellis, 10 Beav. 169; and see Brook v. Badley,~2 L. B. Ch. App. 672); or under The Act for the more effectual application of charitable donations and bequests in Ireland (7 & 8 Vict. c. 97, s. 16) by reason of the devisor dying within three calendar months from the execution of the will (Hamilton v. Foot, 6 I. R. Eq. 572); or is limited so that the bequest is void, as violating the rule against perpetuities {Barley v. Evelyn, 16 Sim. 290; Buchanan v. Harrison, 1 J. & H. 662). So, where as in Eyrev. Marsden, 2 Kee. 564, accumulations are directed to be made out of the income of land to be converted into money, for more than twenty-one years from the death of the testator, and therefore void under the Thellusson Act (39 & 40 Geo. 3, c. 98), as to the excess of the accumulatien over the twenty-one years, such void accumulations will result to the heir-at-law, and not to ''It happens/' observed Lord Langdale, M. B., in the next of kin.
erty, the residuary legatee

&

475

* 1043

ACKROYD

V.

SMITIISON.

* 1043

] intent.

Eyre v. Marsden, "that there is a failure of the testator's *The income of the money arising from the sale of the real estates cannot be allowed to accumulate, and

The purposes of the will, as far as applied as the testator meant. they can be lawfully carried into effect, do not exhaust the whole beneficial interest arising out of the real estate, and I think that See S. C, 4 My. the heir is entitled to the unexhausted interest. & C. 231. [Where a gift is void ab initio, because it violates some statutory provision, as the statutes against excessive accumulations, or for some illegal purpose, the interest which is thus attempted of be illegally created results for the benefit of the heir or the next to kin: Lusk v. Lewis, 32 Miss. 297; Drew v. Wakefield, 54 Me. 291. Ford v. Dangerfield, 8 Eich. Eq. 95.] The principle upon which these cases proceed has been thus laid down by Lord Eldon: "Where," says his Lordship, "a testator means, with regard to a particular purpose, to convert his real estate into personal, if that purpose cannot be served, the Court will not infer an intention to convert the estate for any other purpose not expressed:" Hill v. Cock, 1 V. & B. 175; and see Bective v. Hodgson, 10 Ho. Lo. Ca. 656; S. C. nom. Hodgson v. Bective, 1

Hem. &

Mill. 376.

"Where, however, a testator by his will disposes of an existing charge upon real estate, directing it to be laid out in land, and accumulations to be made out of the income thereof, so as to be partially good under the Thellusson Act, the excess of accumulations over the twenty-one years will go to the next of kin of the testator and not the heir at law: Simmons v. Pitt, 8 L. R. Ch. App. 978. In this case (which, it will be observed, is the converse of Eyre v. Marsden, 1 Keen. 456) the charge was disposed of as personal estate, and was personal estate before it was appointed, and therefore the accumulations so far as they were void, went, notwithstanding the direction to convert into land, to the next of kin as personal estate. In Ackroyd v. Smithson, it was argued, for the next of kin, that the fact of the testator having blended the real with the personal estate, showed an intention on his part to convert the real into personal estate out and out, for all intents and purposes, and not merely

This argument, however, was most for the purposes of the will. successfully refuted by Lord Eldon, who, admitting that it was the testator's intention to convert the real into personal estate, out and out, for the purposes of the will, that is to say, for the residuary legatees, contended, that it was impossible to infer from such intention in favour of the residuary legatees, a similar intention in
favour of the next of kin, whom the testator never had in contemplation; and that to argue from what the testator intended with respect to residuary legatees, by way of proving that he intended the same in favour of the next of kin, was to reason from a case in which intention was expressed, to prove a like intention in a case which supposed the absence of intention.

476

ACKROYD

V.

SMITIISON.

* 1045
I

It was decided, also, in Jessop v. Watson (1 My. & Kee. upon the authority of the principal case, that the blend-

007),'

ing of the proceeds *of real with personal estate for an [ * KM I express purpose which fails, will not operate so as to convert the real into personal estate for a purpose not expressed, viz., The case of Ogle v. ( 'ooke, cited so as to give it to the next kin. in the principal case, was for a long time considered an exception from the general rule; but in Collins v. Wakeman, 2 Ves. jun. 686, Lord Loughborough observes, that he had caused the Keg. Lib. to bo searched, and it was found that the point had been left undecided Ogle v. Cooke, therefore, is no authority whatever on this
\

subject.

Upon the same principle, even an express direction that the proceeds of the sale of real estate shall be deemed personalty will not prevent the operation of the rule in favour of tho heir-at law; for however absolute such direction for conversion may be, it will be construed to extend to the purposes of the will only. See Collins v. Wakeman, 2 Ves. jun. 083; Countess of Bristol v. Hungerford, See, however, the report of that case, Prec. Ch. 81, 2 Vern. 045. and the note to Rogers v. Rogers, 3 P. Wms. 193, where it is stated, that the Court held, that the executors were trustees for the next of kin of the testator, but they happened also to be his co-heirs. This case, therefore, can be considered as of no authority either way. Phillips v. Phillips, 1 My. & Kee, 049, is, indeed, a decision against the claims of the heir; but it must be considered as overruled by subsequent cases. See Williams v. Williams, 5 L. J. N. S. Ch. 84; Roberts v. Walker, 1 Russ. & My. 752; Henchman v. The Attorney- General, 3 My. & Kee. 485; Amphlett v. Parke, 2 Russ. & My. 221; Johnson v. Woods, 2 Beav. 409; Shallcross v. Wright, 12 Beav. 505; Hopkinson v. Ellis, 10 Beav. 109; Gordon v. Atkinson, 1 De Gex & S. 478; Taylor v. Taylor, 3 De G. M. & G. 190; Robinson v. Gorernors of the London Hospital, 10 Hare, 19; Ellis v. Bartrum, 25 Beav. 110; Barrs v. Eewkes, 2 Hem. & Mill. 00; Bedford v. Bedford, 35 Beav. 584. And although a direction that the proceeds of real estate shall be deemed personalty be followed by an express declaration that the heir-at-law shall not take in case of lapse, he will not, unless there be a disposition thereof, be excluded from what the law in the absence of such disposition would give to him. Thus, in Fitch v. Weber (6 Hare, 15), a testatrix devised and bequeathed her real and personal estate, in trust as to the real estate for sale as ?oon after her decease as conveniently could be, and declared that the trustees should stand possessed of the proceeds of the sale, as a fund of personal and not real estate; for which purpose she declared such proceeds or any part thereof, should not in any event lapse or result for the benefit of her heir-at-law: and, after giving lega cies, "the testatrix directed her trustees to pay and apply [ * 1045 ] the residue of her estate and effects as she should by any
1

477

* 1015

ACKROYD

V.

SMITIISON.

codicil to that her will, direct or appoint. The testatrix made no codiSir James Wigram, V.-C, after an elaborate examination of the cil.

authorities, held, that the heir-at-law was entitled to the proceeds of And see Flint v. Warthe real estate undisposed of by the will. ren, 14 Sim. 554, 16 Sim. 124; Bromley v. Wright, 7 Hare, 334, 344; Johnson v. Johnson, 4 Beav. 318; and Sykes v. Sykes, 4 L. R. Eq. 200; and the observations of Jessel, M. E., in Court v. Buckland, 1 Ch. D. 610; hire Cameron. Nixon v. Cameron, 26 Ch. D. 19; and [In the United States, note to Cruse v. Barley, 3 P. Wms. 22. there is considerable variety in the decisions, if not uncertainty in the law; where it is not determined by statute as to whether real See, estate and personal property are governed by the same rules: 4 Kent's Com. 511; Hayden v. Stoughton, 5 Pick. 528; Brighamu. Shattuck, 10 Pick. 306; Clapp v. Stoughton, 5 Pick. 463; and a very learned discussion in Van Kluckf. Dutch Reformed Church, 6 Paige, 600, 20 Wend. 458.] Where land was devised to trustees upon trust to convert into money for purposes, which either failed or never took effect, and the testator died,without heirs, the lord could not claim by escheat, as there were tenants in possession, nor had the Crown any right to come into equity, to ask that the land should be converted, in order that it might take the money as bona vacantia, nor even if the land had been unnecessarily converted, could the Crown make good any claim, as the money would be the absolute property of the trustees. Taylor v. Haggarth,14: Sim. 8; Walker v. Denne,2 Ves. jun. 185; Cradock v. Owen, 2 Sm. & G. 241; 1 Jarman on Wills, 624, 4th ed. See now, however, the Intestates' Estates Act, 1884 (47 & 48 Vict.),
sect. 4.

Whether real property directed to be sold results to the heir as real or personal estate.] This question sometimes arises between the The following rules real and personal representatives of the heir. for deciding this question, where conversion is directed by will, may be laid down as the general result of the cases. First, where it is necessary to sell the land for the purposes of the trust, and there is only a partial disposition of the produce of the sale, there the surplus belongs to the heir as money, and not as land, and will, therefore, go to his personal representative, even though the land may not have been sold during his lifetime; and,

previous to the late Wills Act (1 Vict. c. 26) coming into operation, would have passed by an unattested will of the heir as personalty. See Wright v. Wright, 16 Ves. 188; Smith v. Claxton, 4 Madd. 484; Dixon v. Daivson, 2 S. & S. 327; Jessop v. Watson, 1 My. & K. 665; Hatfield v. Pryme, 2 Coll. 204; Wilson v. Coles, 28 Beav. 215; Wall v. Colshead, 2 De G. & Jo. 683; Attorney -General v. Lomas, 9 L. [If the proR. Exch. 29; Hamilton v. Foot, 6 I. R. Eq. 572, 578. ceed- of realty and personalty are blended together so as to form a common fund it will be considered an absolute conversion Craig v.
it
:

478

ACKROYD
Leslie, 2
1

V.

SM1TI1SON.

* 1046

Wheat. 563; Morron v. Brenzier, 2 rtawlc, 185; Burr v. Wharton, 252. Sim, Secondly, where a sale is unnecessary, by reason of a total fail ureof the purposes for which tin* conversion was directed, * 1046 heir will tako iho estate as realty, descendible to the his heir, and devisable only by a will, attested so as to pass real estate (Chittijx. J'ar/ccr, 2 Ves. jun. 271. See remarks on this ease in Attorney- General v. Lomas, 9 Ij. K. Exch. 35; Bagster v. Fackerell, 26 He;: v. 469; Buchanan v. Harrison, 1 J. & H. 662); and a sale unnecessarily made by trustees will not vary the rights of (he parlies, as the proceeds will in that case be*considered as the real estate of the heir (Davenport v. Coltman, 12 Sim. 610; andsee Cooke v. Dealey, 22 Beav. 196); and if the testator were seised ex parte maternd, his heir in the maternal line will be entitled thereto: fl'ifcln'sou v. Hammond, Bro. C. C. 128; Wood v. Skelton,6 Sim. 17<>; Buchanan v. Harrison, 1 J. & H. 673. Thisdoctrino has been very clearly illustrated by Sir John Leach, M. R., in Smith v. Claxton, 4 Madd. 492. "Where a devisor," observes his Honor, "directs his lands to be sold, and the produce divided between A. and B., the obvious purpose of the testator is, that there shall be a sale, for the convenience of division; and A. and B. take their several interests as money, and not land. So, if A. dies in the lifetime of the devisor, and the heir stands in his place, the purpose of the devisor, that there shall be a sale for the convenience of division, still applies to the case; and the heir will take tho share of A. as A. would have taken it as money, and not land. But in the case put, let, it be suppolbd that A. and B. both died in the lifetime of the devisor, and the whole interest in tho land descends to the heir; the question would then be, whether the devisor can be considered as having expressed any purpose of sale applicable to that event, so as to give the interest of the heir tho quality of money. The obvious purpose of the devisor being, that there should bo a sale for the convenience of division between his devisees, that purpose could have no application to a case in which the devisees wholly failed; and the heir would, therefore, take the whole interest as land." See also" Bagster v. Fackerell, 26 Beav. 469; Wall v. Colshead, 2 De G. & Jo. 683. There is a material distinction as to tho application of the doctrine of resulting trusts between those cases where conversion wholly
''
|
]

:>>

or partially fails rected by " deed.

sion
fect

under wills
is,

it is directed by a will, and when it is di[The reason of the distinction,between converand those under settlements or other instruments

when

inter vivos

because, in the latter cases, the instrument takes efdelivery and in the case of wills does not take effect until the death of the testator. See Bispham's Equity, Sec. 319.] In tho case of conversion of land directed by will, it has been already shown that the devisor's heir takes what is undisposed of ac-

upon

its

479

* 1047

ACKROYD
v

V.

SMITIISON.

cording to the circumstances of the case, either as realty or personalty.

Where conversion, however, is directed by a deed, there, as the deed operates not as a will from the time of the devisor's death, but from the time of the delivery of the deed, whatever is un* 1047] * disposed of results to the settlor and not to his heir; [ whether it results as personal estate, or as realty, depends upon the circumstance whether the objects for which conversion was directed wholly or partially failed. Where there is a trust by deed for the conversion of real into personal estate for certain specified purposes, some only of which fail, there, whether the trust for sale is to arise in the lifetime of the settlor or not until after his decease, the property is impressed immediately upon the execution of the deed with the character of personalty, and so much as is undisposed of results to the grantor as See also Van v. personalty: Hewitt v. Wright, 1 Bro. C. C. 86. Barnett, 19 Yes. 102; Biggs v. Andreivs, 5 Sim. 424; Griffith v. Ricketts, 7 Hare, 299, 311; Clarke v. Franklin, 4 K. & J. 257, overruling Emblyn v. Freeman, Prec. Ch. 541. Where, however, the whole purpose for which conversion of real property is directed fails from the moment of the delivery of the Ripley v. deed, such property results to the settlor as real estate Watcrworth, 7 Ve^. 435. And see the remarks of Wood, V.-C, in Clarke v. Franklin, 4 K. & J. 265.
:

Resulting trusts when money is directed to be laid out in land upon The principle upon which uses which wholly or partially fail.'] Ackroyd v. Smithson was decided, applies also to the converse case of money directed to be laid out in the purchase of real estate, devised to uses which partially fail, as well as those which wholly fail to take effect; for the undisposed-of interest in the money or the estate, if purchased with the money, will result for the benefit of the next of kin of the testator, and will not go to the heir-at-law. [An important qualification of the general effect of a conversion is that the conversion is limited to the purpose of the donor, and that if there is a failure of the purpose, the property will devolve accordRizerv. Perry, 58 Md. 112; Commoning to its original character: wealth v. Martin, 5 Munf. 117; Morrow v. Brenzier, 2 Rawle, 185.] The case of Fletcher v. Chapman, 3 Bro. P. C, Toml. ed., 1, and a dictum of Lord RedesdaWs in Tregonicell v. Sydenham, 3 Dow, But Lord Cottenham. 207, seemed to lay down a contrary doctrine. while Master of the Rolls, in the leading case of Cogan v. Stevens, 1 Beav. 482 n., reported more fully in the Appendix to Lewin on Trustees, p. 911, 3rd ed., after examining all the authorities upon this subject, which are somewhat conflicting, put an end to the anomaly which previously was supposed to exist in the law of conIn version by deciding in favour of the claims of the nest of kin. Cogan v. Stevens, the testator ordered that 30,000Z. thonkl be laid

430

ACKROYD

V.

SMITHSON.

* 1048

out immediately by his executors in tho purchase of an estate or estates in tho county of Devon or Cornwall, the income of which should belong to his widow during her life, and after her decease to certain persons (all of whom died during the life of his widow, without issue), in tail, with remainder to a charity. The money was not laid * out, and the gift to the charity [ * 1048 ] being void under tho Statute of Mortmain, it was held by Lord Cottenham, that the next of kin, and not the heir-at-law of the [When a conversion is directed testator, was entitled to the fund. either by will or settlement or other instrument inter vivos, if the objects and purposes of that conversion have totally failed before
the instrument directing the conversion comes into conversion will take place, but the property will original state and will result to the settlor or testator Snell Eq. 149, but Evan's Appeal, 13 P. F. form. at variance with this doctrine, but it was followed in
operation, no remain in its on its original

Smith, 183,

is

Davis' Appeal,

2 Norris, 348.]

"The result of the whole authorities," said his Lordship, "seems to be, that, before Ackroyd v. Smithson, no distinction was recognised between the doctrine as applicable to a conversion of money into land, or land into money: that, as to both, an opinion prevailed, that when a conversion was necessary, and part of the object
failed, the

unappropriated proceeds belonged to that representative the law cast that description of property in which such proceeds were found to exist. This, as to land converted into money, was corrected in Ackroyd v. Smithson; but do case has occurred in which the point has been argued and determined as to money conI say, argued and determined, because, if deterverted into land. mined in Leslie v. The Duke of Devonshire, 2 Bro. C. C. 187, and Fletcher v. Oiapman, 3 Bro. P. C, Toml. ed., 1, it certainly was not argued; but there are undoubtedly dicta of very eminent judges, since that time, which seem to show an impression on their mind, that the principle of Ackroyd v. Smithson was not to be applied to Those learned judges had not a conversion of money into land. the benefit, which I have had, of hearing tho point fully and most ably argued; and having, after the fullest consideration, come to the conclusion that that principle does apply to the present case and, as I am not bound by any of the authorities to maintain a distinction which was not originally supposed to exist, and which cannot be maintained in reason, and which, therefore, if maintained, would be a reproach to tho law as it stands, I feel myself fully justified in preserving the uniformity of the rule, as applicable to the two cases, by deciding against the claim of the plaintiff; and I may be allowed to express some satisfaction in finding I am not compelled by authority to hold that any heir should take, as such, what had no inheritable quality, but was pure personal estate, at the time of the ancestor's death, or that, as devisee, he should take that which was never destined for him, but was in most unquestionable * 31 WHITE ON EQUITY. 481

on

whom

* 1049

ACKROYD
to another."

V.

SMITHSON.
v.

terms given
481.

See also Hereford

Ravenhill, 1 Beav.

Where
ing:

the next of kin of a testator become entitled to land arisestate,

from the conversion of personal

upon

trusts

which have

they will take it as real estate, and their personal representatives have no equity to have it converted, but it will go to the heirs or devisees of the next of kin, according as they died testate or intestate: Curteis v. Wormald, 10 Ch. D. 172, overruling Reynolds v. Godlee, Johns. 536 582. * 1049] * Distinction between a sum charged upon, and a sum [ excepted from, a devise with regard to their respective destinations on failure by lapse or otherwise.] It may not, perhaps, be out of place here, to notice the distinction that has been taken between the cases where property is devised, charged with the payment of a sum of money, and those cases where there is an exception from the devise. If the original destination of such sums has failed, by lapse or otherwise, the question then arises whether such sums result to the heir-at-law of the testator, or sink into the land for the benefit of the devisee. If a devise to a particular person, or for a particular purpose, be intended by the testator to be an exception from the gift to the residuary devisee, the heir takes the benefit of the failure: Arnold v. Chapman, 1 Ves. 108; Gravenor v. Hallum, Amb. 643. [Where there is a partial failure there will be a resulting trust for the heir and not for the personal respresentatives of the testator.] Where, on the other hand, it is intended to be a charge only upon the estate devised, and not an exception from the gift, the devisee will be entitled to the benefit of the failure: Cooke v. The Stationers' Company, 3 My. & K. 264, where, for instance, land is devised to A. charged with a legacy to B., provided B. attain the age of twenty-one, Lord Eldon, C, has observed, "the devise is absolute as to A. unless B. attains the age of twenty-one; if he does, then he is to have the legacy; but his attaining twenty-one is a condiAnd if he does not attain tion upon which alone he is to have it. that age, then the will is to be read as if no such legacy had been given, and the heir- at law does not come in, because the whole is absolutely given to the devisee:" Tregonwell v. Sydenham, 3 Dow, 210; but see and consider Attorney -General v. Milner, 3 Atk. 112; So in Cooke v. The Stationers' Company, Croft v. Slee, 4 Yes. 60. 3 My. & K. 266, the testator gave and devised to his executors all his freehold and leasehold estates in trust, that by sale of his personal property, and of so much of his real estates, as might be necessary, they should raise a sufficient sum to purchase 10,700Z. in the 3Z. per cent. Consols, and he directed this sum of stock to be apportioned between certain legatees, and among other objects of his bounty, to charities, and he then gave to his wife the rest and residue of his estate and effects of whatever kind, on condition that The charitable legacies failing so far all the legacies were paid.
failed,

482

ACRBOYD

V.

BMITUSON.

* 1050

as they affected the real estate, it was held by Sir John Leach, M. 11., that as the charitable legacies were to be considered not as an exception from the gift to the testator's wife but as a charge upon that gift, the wife was entitled to the benefit of the failure of the

charitable legacies. See also Noel v. Lord Henley, 7 Price, 241; 8. C, * Dan. 211, 322, 338; overruling Bland v. Wilkins, 1 Bro. C. C. 61.

[*1050]

The same result follows where a legacy charged on devised lands lapses by reason of the death of the legatee in the lifetime of the testator (Sutcliffe v. Cole, 3 Drew. 185) or is void under the Mortmain Act (Wright v. Row, 1 Bro. C. C. 61; Barrington v. Hereford, 4 Ves. 811, 3 P. Wms. 20; Jackson v. Hurlock, 2 1 Bro. C. C. 61; Eden, 263; Henchman v. Attorney- General, 3 My. & K. 493; or where a testator devises lands, charged with a sum, to be appointed by him, and he either neglects to exercise the power, or exercises it in an illegal manner, for in all these cases the charge sinks into the estate for the benefit of the devisee: Jackson v. Hurlock, 2 Ed. 263, 274; Tregonwell v. Sydenham, 3 Dow. 213; Cooke v. The Stationers' Co., 3 M. & K. 262; Tucker v. Kay ess, 4 K. & J. 339.
a devise of an estate "after raising" a certain sum will be mean no more than the law would attribute to a gift of an estate subject to a charge. See Re Cooper's Trusts, 4 De G. Mac. & G. 757, affirming the decision of Sir IF. Page Wood, V.-C. (23 L. J. Ch. 29 n., 1 W. R. 231), dubitante Turner, L. J. See also Jackson v. Hurlock, Amb. 487; 2 Eden, 263; Baker v. Hall, 12 Ves. 497; Ridgway v. Woodhouse, 7 Beav. 437; Sutcliffe v. Cole, 3 Drew. 135; Tucker v. Kay ess, 4 K. & J. 339: Heptinstall v. Gott, 2 J. &

And

construed to

H. 449.

Where, moreover, a term is created for a particular purpose, and that purpose has been satisfied, if the instrument by which it was created does not provide for the cesser of the term when that purpose is satisfied, and the term remains without any object to which it is to be applied, the beneficial interest in it being a creature of equity, will be disposed of and moulded according to the interests Hence, where of all persons having claims upon the inheritance. an estate was devised to the use of trustees for a term of years, for the payment of certain specified debts, and after the expiration or other determination of that term, and subject thereto, to uses in strict settlement upon the payment of the debts, the residue of the term was held to result to the devisees entitled to the estate under Davidson v. Foley, 2 Bro. C. C. the will, and not to the heir-at-law. 203; Maundrell v. Maundrell, 10 Ves. 259; Lord Southampton v. Marquis of Hertford, 2 V. & B. 54; Marshall v. Holloicay, 2
Swanst. 432.
strict settlement,

the construction will be the same if, before the devise in the words "subject thereto," i. e., to the term, are Thus in omitted, inasmuch as they will be implied by the Court.

And

483

* 1052

ACKROYD
Sidney

V.

SMITHSON.

[*1051]

v. Shelley, 19 Ves. 352, there was a devise to trnstees for * ninety-nine years upon the trusts thereinafter expressed; and from and after the expiration or other

no trust of the term being declared;

sooner determination of the said term, to uses in strict settlement, it was held by Lord Eldon, C, it being the apparent intention to devise immediate estates, subject to the term, and not future estates expectant on its determination, that there was no resutling trust of the beneficial interests in the term for the heir-at-law, but that it ought to be assigned to a trusv. Miller, *S. C. nom. Sidney tee for the devisees under the will. Geo. Coop. 206. Where a testator charges a sum of money upon a devised estate, and in consequence of the failure of the object for which it was given the sum, if not raised during the life of the devisee, will sink Re for the benefit of the devisee, who will take it as real estate. Coopers Trusts, 4 De G. Mac. & G. 757; 23 L. J. N. S. Ch. 29 n.,
1

W.

231.
of
it

But where the amount charged has been raised during the life the devisee, and subsequently the trusts affecting it fail, so that

reverts to the devisee of the estate, subject to the charge, he will Thus in In re Newbury's Trusts, 5 Ch. D. take it as personal estate. 746, real estate was by will appointed to A., subject to a term of years in trustees to raise a sum for certain persons as tenants for The money was raised and life, with remainder to their children. the interest paid to the tenants for life, one of whom having surIt was held that the capital of vived the devisee died without issue. the fund released by the death without issue of such tenant for life, was personal estate, and went to the personal representative of the

devisee who died intestate, and not to his heir-at-law: Hall, V.-C, observing "that the fund must be taken as it was found, that although it came to the appointee as part of the appointed estate, it came to him as money, and formed part of his estate as money." Where a testator appoints by his will an already existent charge on an estate, upon a partial failure of the purposes for which it was given, it will not to the extent of such failure sink into the estate: Simmons v. Pitt, 8 L. K. Ch. App. 978. Where real property is devised upon condition to transfer a part to a charity, the condition in favor of the charity being void under 9 Geo. 3, c. 36 (the Mortmain Act), the devisee will be entitled to Poor v. the whole of the property discharged of the condition. Midi, 6 Madd. 32; and see Henchman v. The Attorney General, 3

My.

&

K.485.

When a residuary devise or bequest comprehends property which would otherwise have resulted to the *heir or next of kin.] In the cases we have before considered, the competition has been between the heir-at-law and the next of kin, where there has been a resulting trust for one of them; but
[

* 1052

484

ACKROYD

V.

SMITH SON.

* 1053

whatever may result to eithor the heir-at-law or next of kin, may, by appropriate words, be given to others; for instance, if in the principal case the testator had directed that if any of the legacies should fail, by reason of lapse or otherwise, the same should be paid to a particular person, it is clear that he would be entitled to such of the legacies as failed by lapse or otherwise. Amphlett v. Difficulties however have often arisen Parke, 2 Kuss. & My. 232. in determining between the conflicting claims of the heir-at-law and the residuary legatee or devisee, whether that which has wholly or
partially failed to take effect in favour of those for whom it was oiiginally destined, was intended by the testator to be comprised in such an event, in a residuary bequest or devise. First, with regard to that class of cases in which the com petition has been between the heir-at law and the residuary legatee ; viz., when the question arises whether the direction to convert realty into pei'sonalty is not so absolute as to pass the realty directed to be converted under a general residuary bequest of personalty. It seems, however, clear upon the principles laid down in the cases before examined, that a mere direction to sell land for a particular purpose is not considered such an indication of a testator's intention to convert real into personal property, to all intents, so that the undisposed-of proceeds should pass under a residuary bequest of personalty. Thus, in Maugham v. Mason, 1 V. & B. 410, a testator devised freehold chambers to trustees and their heirs, upon trust to sell, and to apply the money arising by such sale toward payment of legacies, and the rents, until sold, to be applied to the same uses; and, after giving some pecuniary and specific legacies, as to the rest, residue, and remainder of his personal estate, after payment of his debts, legacies, and funeral expenses, ho bequeathed the same to his trustees, their executors, administrators, and assigns, upon trust to convert all the said residue into ready money, and to lay out the same in the purchase of freehold propeity, to be settled as therein mentioned. The executors paid all the debts, funeral expenses, and legacies, out of the personal estate, not making sale Sir W. Grant, M. R., held, that the real estate, of the real estate. after payment of legacies, which were a primary charge upon the personalty, resulted to the heir-at-law, and did not pass under the residuary bequest. "The observation," said his Honor, "is perhaps minute, that the money, produced by the sale of the real *estate, could not with propriety be spoken of as per- [ * 1053 ] sonal property to be converted into money; at most, however, this is a general bequest of the residue of his personal estate; and the question is, what was meant to be included under that description. Properly speaking, nothing is the personal estate of a testator that was not so at his death. He may certainly so express himself as to show that something else was intended; but where there is nothing but a direction to sell land, with application of the money to a particular purpose, and a subsequent bequest of the
.

485

* 1054
rest
it

ACKROYD

V.

SMITIISON.

and residue of the personal

estate, I

know

of

no case

in

which

has been held that the surplus, after the particular purpose is answered, forms part of the personal estate, so as to pass by the The mere disposition of the residue of personal residuary bequest. The estate can never solve the question, what is personal estate. clause may be so conceived as to show the sense in which those words are used; but here is nothing more than those words, unaccompanied with anything explanatory of the sense in which they were used." See also, Wilson v. Major, 11 Ves. 205 Berry v. Usher, 11 Ves. 87; Gibbs v. Bumsey, 2 V. &B. 294; Kellet v. Kellet, 3 Dow, 248 Dixon v. Dawson, 2 S. & S. 327 Collis v. Robins, 1 De G. & Sm. 131; Hamiitonv. Foot, 6 I. R. Eq. 572; Watson v. Arundel, 10 I. E. Eq. 299. Where, however, a testator expressly declares, that the money arising from the sale of real estate shall be considered as part of the personalty, it will pass under a general residuary bequest of personalty in the same will (Kidney v. Coussmaker, 1 Ves. jun. 436; Collins v. Wakeman, 2 Ves. Jun. 683; Robinson v. The Governors of the London Hospital, 10 Hare, 19, 27), and it is liable to the trusts which attach to such residuary personal estate, and to the legal incidents affecting it: Bright v. Larcher, 3 De G. & Jo. 156; Field v. Pickett, 29 Beav. 568. So, also, the intention that the proceeds of the sale of real estate should pass under a residuary bequest of personal estate, may be inferred from expressions in the will irresistibly leading to sach a conclusion: and the blending of the real with the personal estate has been considered as furnishing an indication of such intention: Byam v. Munton, 1 Russ. & My. 503; Mallabar v. Mallabar, Cas. temp. Talb. 78; Kellett v. Kellett, 3 Dow, 248; Brown v. Bigg, 7 Ves. 280; G>-iffiths v. Pruen, 11 Sim. 202; Bromley v. Weight, 7 Hare, 334; Spencer v. Wilson, 16 L. R. Eq. 501, 506; Court v. Buckland, 1 Ch. D. 605; Watson v. Arundell, 11 I. R. Eq. 53; Singleton v. Tomlinson, 3 App. Ca. 404. The next class of cases to be examined is that in which * and the [ * 1054 ] the competition lies between the heir-at-law And here it must be remembered, that residuary devisee. although it has always been held that a will as to personalty speaks at the time of death of the testator, and the residuary legatee therefore takes not only what is undisposed of by the expressions of the will, but that which becomes undisposed of at the death, by disappointment of the intentions of the will; yet previous to the "Wills Act (1 Vict. c. 26) it was otherwise as to the residuary devisee of As to him, the will spoke real estate, or of the price of real estate. only at the time of making it, and he could take nothing but what was at that time intended for him. Thus, in a case previous to the Wills Act, where a sum was expressly excepted out of the produce of real estate devised to be sold, and was not disposed of, it is clear that it belonged to the heir-at; ;

486

ACKBOYD
law,

v.

SMITHSQ5.
Collins
v.

1055

and not

to the residuary devisee: see

Wakeman, 2

Ves. jun. GS3.

the same principle, under the old law (although the ausomewhat conflicting), the better opinion seems to bej that where part of the produce arising from land devised to be sold, was directed to be applied to purposes which failed, either by lapse or on account of illegality, the heir-at-law, and not the residuary devisee of the produce, would be entitled to the benefit of the fail Thus, in Jones v. Mitchell, 1 S. & S. 290, the testatrix by will ure. gavo 8001. out of tho money to be produced by the sale of her real estates, to trustees, for the benefit of certain charitable institutions: and she gave the residue of the money to J. R. The gift of the 800/. being void, Sir J. Leach, V.-C, held that the heir of the tes" Tho devisor," said his tatrix, and not J. R., was entitled to it. Honor, " at the time of making the will, intended that the residuary devisee of the price of the land should take such residue, subject to the deduction of the 800Z., and not the 800Z., which is therefore undisposed of, and results to the heir." See, also, Hutclieson v. Hammond, 3 Bro. C. C. 128; Collins v. Wakeman, 2 Ves. jun. 683; Gibbs v. Ramsey, 2 V. & B. 294; sed vide contra, Page v. Leapingicell, 18 Ves. 463; Noel v. Lord Henley,! Price, 240; S. C, 1 Dan. 211, 322. The fact, however, of the testator having blended the produce of his real with his personal estate, has in many cases been considered a sufficient reason for excluding the heir, in favour of the residuary legatee, of the produce of the real and personal estate by applying to the mixed fund the rule applicable to personalty, such rule being, even under the old law, as laid down by Sir John Leach in Jones v. Mitchell, 1 S. & S. 290, that the residuary legatee of personalty takes what is not effectually disposed of. See Durour v. Motteux, * 1 Ves. 320; 1 S. & S. 292, n., the dictum of [ * 1055 ] Lord Thurloiv in Htdcheson v. Hammond, 3 Bro. C. C. 148; Kennel v. Abbot, 4 Ves. 802; Amphlett v. Parke, 1 Sim. 275; 4 Russ. 75, per Sir John Leach; Green v. Jackson, 5 Russ. 35; S. C, 2 Russ. &My. 238; Cooke v. The Stationers' Company, 3 My. &
thorities are

Upon

K. 262.

A fortiori where the real property is directed to be sold, and the proceeds arising therefrom, and from the personal estate, are directed to be applied to certain purposes, and the surplus is given away from the heir, there will be no resulting trust in his favour: Norreys v. Frank, 9 I. R. Eq. 18. The cases, however, of Collins v. Wakeman, 2 Ves. jun. 683; Gibbs v. Ramsey, 2 V. & B. 294, and Amphlett v. Parke, 2 Russ. & My. 221 (overruling the decision of Sir John Leach in that case), decide that, although real and personal estate are blended together, a residuary devise or bequest of the proceeds to arise from the sale of the real and personal estate, will not carry to the residuary devisee or legatee of such proceeds, lapsed or void legacies, arising from the
487

* 1056

ACKROYD

V.

SMTHSOX.

sale of the real estate, for such lapsed or void legacies, so far as they arise from the sale of the real estate, will result to the heir-at-

In the case of Amphlett v. Parke, 2 Russ. & My. 221, a leading authority upon this subject, a testatrix gave her real estates upon trust to be sold, and directed the moneys to arise from such sale, to be considered and taken as part of her personal estate; she then directed, that, out of the moneys to arise from such sale, and out of all other her personal estate, certain pecuniary legacies should be paid; and bequeathed all the residue of her personal estate, and of the moneys arising from the sale of her real estates, upon trust for two persons and their children. Some of the pecuniary legatees having died in the testatrix's lifetime, it was held by Lord Brougham (reversing the decision of Sir John Leach), that the conversion of the real estate into personal, directed by the will was not absolute, but partial only, for the purpose of making good the pecuniary legacies, and that such of those legacies as had lapsed, in so far as they were payable out of the produce of real estate, had lapsed for the benefit of the heir-at-law. Lord Brougham, in his learned judgment in this case, thus ably sums up the doctrine applicable to this class of cases: "The rule," observes his Lordship, "which I have stated to be extracted from all the cases is, that you must clearly prove that the heir-at-law is excluded; that the words prevent the possibility of considering anything to be left as a resulting trust for him; and that the burden of such proof lies upon those who claim in opposition to him. It is not at * flows from it, [ * 1056 ] all inconsistent with that rule, but rather and I agree in holding, that a testator may provide, not only that the undisposed residue, which is strictly personal, shall go to the residuary legatee, but that all lapsed legacies, of whatever nature, shall also go to him; and that, if it is clear, therefore, from express words, that he gave him the lapsed legacies that were to be raised by the sale of real property, and failed in consequence of lapse, mortmain, or any other cause; if he says, for instance, 'I give all the lapsed legacies as parcel of my residue, to the residuary legatee,' cadit qusestio; there is no doubt he may; and if he can do it by express words, he can do it by plain and obvious inteution If you once arrive at to be gathered from the whole instrument. the conclusion, that the testator has displaced the heir, then, of course, the lapsed fund falls into the residue by express intention." See also, Salt v. Chattmvay, 3 Beav. 576; Taylor v. Taylor, 3 De G. Mac. & G. 190. As to wills coming within the operation of the new Wills Act (1 Vict. c. 26), it must be remembered that the 25th section enacts, "that unless a contrary intention shall appear by the will, such real estate or interest therein, as shall be comprised, or intended to be comprised, in any devise in such will contained which shall fail, or be void, by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or other law.

488

ACKROYD

V.

SMITIISON.

* 1057

wise incapable of taking effect, shall he included in the residuary See Carter v. Haswell, 3 devise (if anv) contained in such will." Jur. N. S. 788. By the same Act, moreover, it is enacted that devises or bequests to a child or other issue of the testator who shall die leaving issue living at the testator's death shall not lapse. See sect. 33. Where there is a resulting trust of personal estate, whether as being originally undisposed of by the will, or undisposed of in consequence of a subsequent event, as failure from lapse, or being void from illegality, not being effectually disposed of by the will, it will be comprehended in a general bequest of the residuary personal estates, the next of kin not being entitled to anything. Dawson v. Clarke, 15 Ves. 417; Oke v. Heath, 1 Ves. 141; Brown v. Higgs, 4 Ves. 708; Shanley v. Baker, 4 Ves. 732; Cambridge v. Rous, 8 Ves. 25; Cooke v. Stationers' Company, 3 My. & K. 264. A testator may, however, show his intention to except part of his persona] estate from his residue, and in such case,' if otherwise undisposed of, it will go to his next of kin. See Davers v. Dewes, 3 P. Wms. 40, there A. by will declared his intention to dispose of his household goods by his codicil, and he gave the rest of his personal estate not before * disposed of nor re- [ * 1057]
1

served to be disposed of by his codicil to his wife. A. afterwards made two codicils without disposing of his furniture thereby. It was held by King, L. C, that the household goods should not go to the residuary legatee, but to the next of kin. See also Attorney- General v. Johnstone, Amb. 577. If in the cases before considered the author of the resulting trusts should die intestate as to the resulting interest, and without heirs or next of kin, if such interest were real estate, it would sink into the land for the benefit of the person legally entitled thereto (see Henchman v. Attorney -General, 3 My. & K. 485; Cox v. Parker, 22 Beav. 108; Davall v. Neiv River Company, 3 De & Sm. 394; Taylor v. Haygarth, 14 Sim. 8. If it were personal estate it would go to the Crown under the head of bona vacantia Middleton v. Spicer, 1 Bro. C. C. 201; Barclay v. Russel, 3 Ves. 424; Taylor v. Haygarth, 14 Sim. 9; Powell v. Merritt, 1 Sm. & G. 381; Cradock v. Owen, 2 Sm. & G. 241. As to the exception to resulting trusts in the case of gifts to charities, see Tudor's Charitable Trusts, 2nd Ed.

{Doctrine of Resulting Trusts Restated. The case of Ackroyd v. Smithson, decided that a conversion directed by a testator is a conversion only for the purposes of the will, and that all that is not wanted for these purposes must go to the person who would have been entitled to them but for the will. The case did not decide that if the Court or a trustee sells more than is necessary, there is any equity to reconvert the surplus for the benefit of the heir-at-law or the persons entitled at the time of the sale.

489

* 1058

WARD

V.

TURNER.

In England the heir and the next of kin or legal representatives same persons, that is, they have not the same interests and rights. If the property is real estate then the trust results to the heir, and if it is personal property then it results to the next of kin under
are not the

the statute of distribution, or to the legal representatives. Resulting Trusts under this class are not important in the United States, because in almost all the States the same persons take both real and personal estate of an ancestor in the same proportion and with the same rights and it is not important whether the trust results to them as real or personal property. The only question which is of any importance in the United States is whether the trust results to the heirs-st-law or to the residuary legatee, and all cases that can arise depends upon the intention of the settlor or donor, and upon the construction of each particular
will.

It is only where the will contains no residuary clause that the heirs-at-law can assert any claim.]

[*1058]

*WAKD
July

v.

TUENER.

20th, 1752.

[reported 2 ves. 431.]

[S. C. 1 Dick. 170.]

Donatio Mortis Causa.] Delivery necessary to donations mortis causa ; but the delivery of receipts for South-Sea Annuities is not sufficient, though strong evidence of the intent.

The end

of the bill

was

to

have a transfer of 600Z.

New South-Sea
to

Annuities

made

to the plaintiff, as executor of

John Mosely, and

have certain specific parts of the personal estate of William Fly, Another dead, intestate, delivered or made over to the plaintiff.
prayer of the
for services
bill was to have an account of what was due to Mosely performed to Fly, against whose estate this demand was

made.

490

WARD

V.

TURNER.
:

* 1059

The case the plaintiff made was this he was executor of Mtosely, who was related to Fly by affinity, Laving married his aunt that Fly had great obligations to Mosely, who took care of him in his infancy and to his house Fly used to come from school when it broke
;

up

and afterwards, Mosely, who,

in the latter part of his life, ap-

peared to be in very mean

vant, until Fly's death,

circumstances, lived with Fly as his serthere,

had his victuals

him, and had

now

and then a shilling given him.

performed services to From thence Fly

at his death, and.

made

profession of a strong intent to do for

him

pursuance of which, as Fly drew had great kindness for state of health, during that time bad in very a near his end, being

him

in

he made Mosely several donations mortis causa, in prospect of death. Four times were fixed on by the witnesses, of which several were examined in the cause, speaking of actual gifts, and declaFirst, 18th January, 1746, [* 1059] rations * supporting them.

which was spoken

to

by the porter of Furnival's Inn.

The

second, 6th February, 1746, which was the principal proof relied on

by the plaintiff to support the gifts of these annuities, and was proved by Fly's barber, who, being sent for by Fly, found Mosely with him, and no other, and swore to the particular words used, and declarations made that Fly said to him, viz " I intended to but I give him (speaking of Mosely) Longford estate for his life have considered of it and that which is worth 40Z. a year to anfor if the tenants wanted an other, is not worth so much to him abatement for repairs, he would allow it and, therefore, I will do
: :

better for him."

That thereupon Fly went to his

escritoire, and,

taking three papers, said, " I give you, Mosely, these papers, which
are receipts for South- Sea Annuities^ and will serve you after I

am
the

dead."

The

third,

23rd February, which was proved by one who

said, "

swore that in his presence Fly

Mosely, I give you

all

goods and plate in this house." Fourthly, 3rd March, by the said barber, who swore that Fly declared to him, and to another person, who only were present, that he gave to Mosely all his household goods, money, arrears of rent, and everything that should be found in his house, except his sword, gun, and books, and that this, together with those three receipts, would make 2000Z. that he wished
:

a gentleman of his acquaintance had his sword and gun, but

rest

all

the

he gave to Mosely.

He

died in April following.

Argument for

the plaintiff.]

These were

argued

to

be so

many

491

* 1060

WARD

V.

TURNER.

declarations ol bounty, supported by so

times.

may

witnesses at different
in
fact these things

Two

questions arose:

first,

Whether

were given ? secondly, Whether properly given in point of law ? Donations mortis causa are derived from the civil law. JustiDian's Inst., lib. 2, tit. 7, shows the nature of them; and that, in general,
anything
is

properly the subject matter of such donations, that

may be
[

the subject matter of a legacy or donation inter vivos.

Either rights in possession or reversion are capable of

* 1060
]

* being so given.

It is

not necessary that the donor

should have a legal interest; an equity will do, when by

no act he can pass the legal property: consequently the formalities accompanying such donation must be according to the subject of the
gift.

Livery, then, cannot be always necessary, as, in a chose in

action or simple contract debt, which lie not in livery, chose in action
this Court as much as things by the rules of law; and, therefore, this Court will carry into execution a voluntary gift of a chose in action. In Lawson v. Laivson, 1 P. Wms. 441, such a gift of a note drawn on a goldsmith, which in point of law passed nothing, was held good Jones v. Selby, Prec. Ch. 300; Gold v. Rutland, 1 E.q. Ca. Ab. 347. In Snellgrove v. Bailey, March 11, 1744 (t), Mrs. Baily, going out of town in a bad state of health, gave her maid a bond, executed to She died inher by a third person, saying, "If I die, it is yours." testate; the plaintiff was her administrator: thus it stood in the defendant's answer. A Bill being brought for discovery and delivery of the effects of the intestate in the hands of the defendant, the question was, whether the nature of the property was capable of being so given ? His lordship held, it might, as well as a specific chattel though no legal property passed thereby, nothing but the paper, a bond being evidence of a debt, and the intent being to give the debt, not the paper, the Court held it a good donation mortis causa, comparing it to the property which passes by assignment of a bond, which passes nothing in point of law, and the assignee must make use of the other's name for recovery on it. That case

were not assignable, but now are in

in possession,

rested singly on the averment in the answer; in this

dence.

is

strong evi-

The Court there put this case: that, if a chattel in possession had been bought by the intestate, and a bill of sale made to a trustee, for her use, the property would have been in the trustee, and the equitable interest in the cestui que trust, who, if she had
(0 3 Atk. 214; Kidg. Ca.
t.

Hard. 202.

492

WARD

V.

TUENEE.

1062

given this chattel so circumstanced to the defendant, it would have Lord Chancellor Hardwicke. That is a case been good pat upon an equitable iterest. There the chattel * itself [ * 1001 ]
|

differ

must have been delivered. J Though these donations in some respects from testamentary dispositions, yet they
it is

participate in a great degree; for like that,

a declaration of his

mind, what he will have done with his property when he is no more; he does not part with the property, or even the use of the thing, in his life: for that would prevent any such disposition from being
ever made.
to complete,

Where
it

the thing lies in livery, the livery

is

not

is

only evidence of the

gift;

and

if,

the

made moment

after possession delivered (with a declaration that he intended, if he died, it should be the donee's absolutely), the thing was restored [Lard by the donee, that would not tend to defeat the gift. I apprehend it would: and that such an instantaneous Chancellor. gift and taking back would not do, which it would be dangerous to But, where livery cannot be the best evidence the nature admit.] of the transaction will admit of, being only to show the mind of the Here is such a delivery over, as is sufficient eviddonor, will do.

They certainly lie not in ence of the gift of these annuities. There is no evilivery, there being other ways of passing them.
dence of them but one's name being placed in the book. The dewith strong words of gift of these receipts, which were the only symbol of his property, was as much as he could possibly
livery, then,

do towards giving

it,

not necessary, nor could ho conveniently do that: and

except a mere transfer in the books, which was it was giving

illness, for that

with a prospect of not recovering of that particular

of itself

would be a revocation; but he died of

of the gift.

it,

and within two

not necessary

months

In cases of livery of seisin

it is

to deliver the thing itself, or

coming upon the land, and delivering a gold ring thereon, is enough (1 Inst. 44), though not participating of land; but there ought to be clear proof of the Next as to the specific things, it is intent, which there is here. said, there was not sufficient possession delivered; but in such a number of things, it is not necessary every one should be delivered. The subject of the gift is what was then in the house.
any part;
for,

If a * delivery

is

absolutely necessary, the plaintiff has

it;

* 1062

not indeed proved

but Mosely was actually in the

house with him, and was then as much in possession as if actually If delivered to him, which is not necessary if he is in possession.
493

1063

WARD

V.

TURNER.

one
If

is recited to be in possession of a house, livery is not necessary. one does as much as he can towards possession, it is all that is

required; as delivery of the key of a warehouse; so of a piece of

parchment, delivery of a ship and of the actual possession of

(1 Atk. 160).

it

to

the mortgagee, as determined by your Lordship in Brownw. Williams

No more

could be done here; for he could not carry

the goods out of the house: and he was then in possession.

ever, as this is a bill for discovery of assets, if

Howis

the plaintiff

not

entitled to these gifts,

his services.

he

is at least to

a reasonable satisfaction for

Argument for

the defendant.]

On the part of tbe

defendant, ad-

ministrator of Fly, there was no evidence to impeach the evidence

of the gift, but to invalidate
it

to a certain degree, principally

from

the behaviour of Mosely after the death of Fly, as not like one

who

thought he had a right to these donations from him: for it was sworn, that being at the house of Fly at his death, he continued there until

Midsummer; he did not say these goods were his own, upon application made to buy tbem, but that they were Turner's, the administrator, and next of kin; sent to Turner desiring him to take them away; and they were sent away, and Mosely assisted in packing them up, and declared he would not go into mourning, for that Fly had given him nothing that he could help. A donation mortis causa
(though there
cellor.
is,

indeed, such a thing in the law)

is

of a very deli[Loi'd
is

cate nature, and, from its import, merely voluntary.

Channo distinction between testamentary dispositions and such a donation, and there is a former will, the Statute of Frauds (29 Car. 2, c. 3) will be overturned, which relates to all wills of personal estate; therefore, since the statute, no nuncupative will or codicil can be set [* 1063] up where a will was made before. This statute has * ex-

Such donations are subject

to debts.]

If there

pressed an anxiety as to nuncupative wills, not taking

them away absolutely for fear of breaking in upon the real intent, but, seeing them liable to uncertainty, litigation, and perjury, has put several restrictions on them; whereas, if the said distinction is not observed, a nuncupative will may take place, proved at any time, and that by a single witness, where more than one would not be ventured, for fear of contradiction, and that at any distance of time,
nor confined to
position
is

302., as

the statute required.

testamentary dis-

a gift in case of,

and only has operation after, death.

donation, then, cannot be in general in case of death, but must have

494

WARD

V.

TURNER.

'''

1004

something peculiar, differing from legacies. The characteristic of it is this: It is not on a general apprehension of approaching mor-

tality,

but where the particular recovery of the donor

is

annexed by

way of defeasance to the gift, which would be otherwise absolute. It may be confined to an immediate illness; but the Roman law puts the case of a man's going a journey, which was formerly more hazardous than now: so, if going to battle, and in case he is killed, and makes that gift; so, if under a bad state of health, he makes a complete gift, if he does not recover: that must mean some circumscribed time or illness, and there must be some sort of defeasance, arising
from the recovery or return home, to these donations, otherwise it is an absolute gift. But, though liable to be defeasanced, it must be a complete gift before inter vivos; and that is the reason the Ecclesiastical Court has no probate or jurisdiction over it, as it would if testamentary. Next, to consider what is meant by delivery, in the Roman and civil law books, as far as admitted in this country; for,
as
it is

in all the books,

it

will not hold here.

if

necessary to
it,"

make
is

that complete inter vivos,

it

Where delivery is man said, " I give

would be nudum pactum: there could is there put only to show that the gift must be complete. In that new species of property the actual delivery is supplied by that which is equivalent to delivery; as in case of a ship, delivered by bill of sale, which is defeasanced in case of * recovery; that is enough; but it must [* 1064 ]
and there
title

no delivery,

be no

or action.

Then

delivery

be complete according to the nature of the thing, otherwise

it

cannot be distinguished from a legacy.

delivery

is

neces-

sary, according to

Swinburne, in each of three instances he puts, of a donation mortis causa. Laxvson v. Lawson (u) turned upon it,

and could not be admitted but on that foundation.

debt, or of arrears of rent, because there can be

There cannot,

indeed, be such a donation by parol, of a book or simple contract

inconvenience, because
it

it

may

be easily done another way.

no delivery, and no Taking

in case of a specific thing, as a horse, &c, possession is altered (as Swinburne supposes), and then the donee shall enjoy it; otherwise there is no difference between this and a testamentary disposition.

This donation, therefore, takes

tingency.
his life;

effect; but still liable to that conThere is no case that the donor must keep possession in how, then, can he have the use or benefit of it, taking it to

be a specific thing?

As

to a chose in action
() 1 P.

being allowed to be

Wins. 441.

495

* 1065
given, that

WARD

V.

TURNER.
for Snellgrove v.

was a new case before your Lordship;

Baily (v), whifth was of a bond, was the first ever determined upon anything of a chose in action. The reason the Court went on there was, that it was as complete a gift as could be made of a bond; for,
writing not being necessary to the assignment of a bond, if all was It was a delivered that could be, all that was required was done.
substantial gift of the paper and seal, without which there could be

no recovery on
or security of

it.

bend

carries the debt itself, not only evidence

it,

therefore

is

considered as bona notabilia, and not

only where the party dies, like other choses in action: and a court of equity does not say, a bond must be delivered by deed in writing.

In Richards
it

gagor, by giving

was proved,

v. Syms (w), on a gift of a mortgage to the morthim the deeds, your Lordship held, that if that fact was a gift of all the money on the securities, and not

So that the bond within the Statute of Frauds (29 Car. 2, c. 3). there is as completely given as can be, supposing that parol evidence If that was not is sufficient, and writing not necessary.
[

* 1065 ] the ground of that * determination, and no delivery requisite, but that it is to remain with the donor until his

death, and only a formal delivery it will not differ from the inconveniences intended to be guarded against by the Statute of Frauds (29 Car. 2, c. 3); for then every loose declaration will be set up,

notwithstanding solemn wills before executed.

It is

dangerous to

support parol declarations upon gifts of this kind, not accompanied with a visible act to give notice to all the world, as delivery. And the statute has thought it better, that some of these true gifts should
fail (as

required), than there should be a public inconvenience.

has frequently happened for want of the solemnities thereby If a com-

mon
If,
it;

chose in action cannot be delivered,

it is

how can

this,

which

is

stronger, as

capable of being assigned by a proper transfer ? indeed, one goes as far as he can, the Court will perhaps supply as in those cases on the stat. Jac. 1, in Ryall v. Rowles (x); but

Fly was a man of business, an attorney, is not the case here. yet waits near two months without doing that which would effectuate That argument of the testator's having time to make a perfect it.
that
gift, is

often used in Doctors'

will

Commons on

imperfect

wills.

This

Court

never support that as a donation, which will; for there must be a difference betwee n them.
3 Atk. 214. w) Barnad. Ch. Rep. 90.
v)

may be

a gift by

x) 1 Ves. 348.

496

WARD

v.

TURNER.

* 1066

Lord Chancellor Hardwicke, in the outset, laid the other goods out of the case, of which there was no pretence of any delivery, which would be very dangerous; and that it was impossible to make
such a complex donation mortis causa, as a general bequest of ail one's personal estate, or of a residue, without some proof of de-

would be the same as a nuncupative will: and it was a pity tho Statute of Frauds did not set aside all these kinds of gifts. But what weighed with him was, whether the stock without delivery was a good donation mortis causa; which question, considering the vast proportion of property in such funds, was of infinitely
livery, for that

greater consequence than the value of

it:

therefore he

should not determine

it

hastily.

If courts of justice

*were

* 1066 ]

compellable by rules of law to suffer such gifts without any transfer, to prevail, it could not be helped; but then the Statute
of Frauds relative to nuncupative wills

would be so

far nugatory

and vain. Having taken time

opinion.

to consider, his

Lordship now delivered his

Lord Chancellor Hardwicke.

There are two general questions.

What

is

the weight and strength of the evidence in point of fact?

Next, the result of that evidence in point of law, or the law arising

on this fact?

As
is,

to the

first,

and as

to the conviction arising therefrom, there

to be sure, very strong evidence

on the part of the

is

plaintiff, of

Fly's general intention of bounty, which

not to be disputed; but

as to the evidence of the particular gifts, I cannot help taking notice,

that the declarations relied on by the plaintiff to prove them,

low degree, his porter, barber, Fly was bred an attorney: had some property; some real estate; was a man of business; and must be presumed, from his profession and education, to know something of what the law required to make a will; and certainly it would be more easy for him to have made a will in writing, than to have taken all these several steps, to give away these parts of his estate. It is likewise observable, that the behaviour of Mosely, and his declarations after the death of Fly, are some impeachment and weakening of the plaintiff's evidence; for it is extraordinary, that, if he thought himself entitled, he should not insist upon these goods being his own, instead of suffering them to be taken away, and assist
are
&c.
all

made

to persons of extreme

It is observable, also, that

* 32

WHITE ON EQUITY.

197

* 1067 ing therein.

WARD
At the same
it

V.

TURNER.
I

time,

if

was

to

ground

my opinion upon

any objection to the evidence in point of fact, I should not deter-

mine

it,

but send

to bo tried; for this is as

proper a case to be

tried as

any

other.

for if

upon by the plaintiff as a testamentary cause; he was to insist on that, it would overturn his demand, as he has no probate; but it is insisted on as a donation mortis [*1067] causa. Trover might be brought for it; * .for it would
It is not insisted

transfer the property: but though I have searched for

it,

I do not find a case of that kind in the books, of such an action at

it might be tried at law, was there a foundation for it; was to ground my opinion upon the evidence in point of fact, I would direct a trial. But according to my opinion, there is no reason to give the parties

law: but

and

if

that trouble: for next, supposing the fact well proved, the consideration is the result in point of law.

The

relief sought, is

founded upon these

gifts

being good dona-

tions mortis causa.

First, as to

any

specific part3 (if they

may

be so called), except

the annuities.
hearing,)

They

are clearly not good, (as I declared at the

there being no pretence of any delivery in any shape

whatever.

They are so
is

general, as, in

my

opinion,

if

they prove

anvthing, to prove
I give you

personal estate, (this

all

all his exclusive of annuities,) saying, " Mosely, the plate and goods in this house," or, " If I die, all

an intent to make a nuncupative will of

are yours;" but nothing was delivered.

session by living
lived as a servant,
in-

It is said,

he had posa servant

the house, and did not want delivery, but he

posession; so that,
if

who had no

them

in custody,

it

would be a possession

for his master.

all

had The other

arrears

declarations are not only of the goods, but of

of rent, and extend almost no grounds to carry it so
to everything;
far:

money and

consequently, there are

and

it is

impossible to support any

the witnesses deserve

of these gifts in prospect of death, as I have declared already.

Next, as to the gift of this annuity.

credit,
it
it

If

but shows a general intent to give the whole to Mosely, by making a nuncupative will or If that was to be admitted to support wills at different times. these several gifts as so many donations mortis cau?a, it would overturn not only the letter but the whole spirit and intent of the
is

strong evidence of a general intent of bounty;

it

rather turns against the plaintiff, for

49S

WARD
Statute of Frauds.
'''

V.

TURNER.

* 10 GO

But, notwithstanding, suppose this

if

i,

ift

of

the

annuities was just, as

it

was a distinct

* 10G8

and independent donation from the other matters insisted

ou as
gift
gifts,

the question

is,

whether

it

is

such a gift as the law of

First, the fact of the
civil

England
is

allows, as a donation mortis causa?

proved only by one witness:

whereas the

law,

from
for

which

this doctrine is taken, requires five witnesses thereto;

Justinian,

when ho allowed these

and takes notice

gifts,

was apprehensive of fraud

arising from them,

in that very chapter relied

it,

on

for
it

the plaintiff, that he had

made

a constitution to regulate
five,

that

should be

in the presence of

limited in point of value,

it.

&c,

which shows how jealous

to object to a witness as

ho was of

Besides, the witness

swears to this in very formal words; and, though

loose

it is pretty hard and uncertain on one hand, and

the contrary on the other, yet this argues either a very strong

memory
gift, as

or a pretty strong assurance in swearing.

he swears,

is

only of the threo receipts.

But the express That is the form

Taking it, therefore, according to the substance of the amounted to a declaration that Fly, by giving these receipts, intended to give the annuities, upon this the principal point arises, whether delivery of the thing given by way of donation mortis causa is necessaiw: and, if necessary, whether this delivery of the receipts is sufficient delivery of the thing given by way of
of the gift.
gift, that this

donation mortis causa?

to

am

of opinion, that delivery

is

necessary

and that the delivery of these receipts for the consideration-money of the purchase of them was no sufficient
a
gift,

make good such

delivery to validate this

act.

To

clear this,

it is

proper tc consider

the notion of a donation mortis causa, according to the civil and

Roman

law,

According to the
lib.

and the law of England. civil and Roman law there

is

a great variety,

and several passages therein are pretty

30,
tit. 6,

difficult to reconcile.

Law

38, requires, that both

Digest donor and donee should

be present at the time of the gift, "quo prassens prsesenti dat;" which looks as if the delivery was intended at the time. It is "quo" there, and in several editions: but in the Lyons edition of Gothofredus' * Corpus, it is "quod;" which makes it [ * 10G0 ]
sense.

Next, in Digest, same

tit

parag.

1, it

speaks of
if

it

throughout as a restoring of the same thing,

recover: as
in the
if

the donor should

a restitution

was

to be.

It is

proper to take notice, that

Roman law

there were three kinds of donations mortis causa.

490


* 1070

WARD
Voet on the Pandect,
is

V.

TURNER.
parag.
3, in

And
p.

in

lib. 39, tit. 6,

his

2nd

vol.

710, the division

agreeable to that
is

made

of these donations

by

Swinburne.

The

first

a donation by one in no present danger,

if

but in consideration of mortality

he died; and this

is

strictly

was to pass at the death, The second kind is, where the property passed at not at the time. the time, defeasible in case of an escape from that danger in view, The third was, where though he or of recovery from that illness. was moved with the danger, yet not thinking it so immediate as to vest the property immediately in the person, but put in possession of the person as an inchoat gift, to take effect in case he should die. Vinius's Comment, on this place of Justinian is more particular puts the remedy by action the donor might have, in case he repented or revoked. That is, on the last kind of donation mortis causa, where he did not part with the property immediately, he should have a real action; but where he actually parted with the property, but the gift was to be defeated by his revocation or recovery, or escape from that danger he was in, conditionem habeat (which is a personal action) to make the irritancy, or to recover damages for the thing: so that it differed not but in the nature of the action. And Swinburne, on in Calvin's Lexicon, &c, that is the distinction. the text I have quoted, implies there should be a delivery, saying that legacies differ from such donations, for that legacies are not delivered by the testator, but to be paid or delivered by the administrator; putting the distinction upon the one being delivered

compared

to a legacy;

for the property

in

life,

the other after death.

civil

But, notwithstanding

this, several

books in the
his

law import the contrary; particularly Vinius, in

lib. 2,
tit.

Comment.,
vol.
1,

7, sec. 1,

numero

2;

Covarru-

and * Voet on the Pandect, same chapter, num. 3 and num. 6, which passages show the different expression and opinions, some importing a delivery others not. I have mentioned them to come at that which seems the distinction, reconciling them all according to what is laid down by Voet, num. 6, that they did not require an absolute delivery of possession to the first or third kind of gift I have mentioned; but, in the other case, where the property was to pass immediately, it was required; which is the meaniDg of the expression in Voet, "in mortis causa donatione dominium non transit sine traditione" and of that other expression in Voet. With this distinction, those passages in the civil law are properly reconciled.

[*1070]

vias,

rub.

3,

500

WARD
Though
I

V.

TURNER.

* ]071

come might collaterally, and on these two heads I enquired whether there have been any cases there upon this, viz., in suits against an administrator on account of assets by the next of kin, where the administrator had insisted he could not administer such a part, because it was given mortis causa; or, if there is a will, in which thero are specific legacies, and one of those legacies he had given in his life by way of donation mortis causa, there it might come in question in the Ecdirectly in question in the Ecclesiastical Court, they
clesiastical Court; but I
is

know

these donations mortis causa could never

cannot find

it

has.

The nearest

case to

it

Ousley

v.

Carrol

Dr. Bettesworth.

June, 1722, in the Prerogative Court, before There was left a writing in the presence of three
(y),

witnesses, not in the form of a will but a deed, viz.:

"I have given

and children of

and granted, and give and grant,

to

my

five sisters,

the sixth, their heirs, executors, and administrators, in case they survive me, all my goods and chattels, and real and personal estate,

which I may claim in right of my own, whether alive or The dispute "was by a person claiming as his wife, and who had been so, but divorced, who insisted this was no will, but a deed

and

all

dead."

of gift mortis causa (and a gift mortis causa

may

be

made
[

in

writing as well as otherwise, and so it might by the * Roman and civil law); but the Ecclesiastical Judge

* 1071

was testamentary, proved it as such, as a testamentary act, and probate was granted, from which there was no appeal; but a case was there cited of Shargold v. Shargold, Tipon a deed of gift by Dr. Pope, not to take place until his death and sixpence delivered by way of symbol, to put the grantee in possession; that was pronounced for as a will, not as a donation mortis causa; which I mention to show how far the
was of an opinion
this

Ecclesiastical Court has considered these things as testamentary.

far delivery is necessary

it

Having considered these donations, the different species, and how by the Roman and civil law, I will consider according to the law of England. They are undoubtedly taken

from the civil law; but not to be allowed of here farther than the civil law on that head has been received and allowed. Taking the
it

law of England to consist (as Hob. says) of rules of law and equity, might have come in question in cases of action of trover and de-

tinue; but I have never found

{y)

any action on that head.

1;

Consider
v.

See

Thorold

v.

Thorold,

Phillim.

Attorney-General

Jones,

Price, 368.

501

* 1072
it,

WARD

V.

TURNER.

therefore, as in this Court, the civil law not binding here, but a3

far as received

and allowed; which must be from adjudged cases

and

authorities, proving that the civil law has been received in

England, in respect of such donations, only so far as attended with delivery, or what the civil law calls tradition, for which see Swinburne (who, being an English writer on the civil law, what he lays down is some evidence of what has been received here), Part. 1, sec.
7; but, in other places, sec. 6, in
tit.

Definition of Legacy, he is

still

more

express.

In both places, in one

directly, in the other collat-

he lays down that delivery is necessary. it on the resolutions of this Court; the same thing There are not many cases on this head, and results from them.
erally,

Next, consider

404, where

The first is Dmiry v. Smith, 1 P. Wms. Lord Cowper founded himself on this, and the possession transmitted and changed: next Laicson v. Lawsoii, 1 P. Wms. 441. All that I can recollect from thence is, that the * [gift of the] * purse was held good, because delivered to 1072 [ ] As to the other legacy of 100Z. bill, I the wife herself. cannot say on what it depended. It is a kind of compound gift; so
they are somewhat loose.

many collateral
inferred from

circumstances are taken into

but, being a
it

it;

it, that nothing can be draught on his goldsmith, that draught

was delivered; so that there was delivery, so

does not contradict what I laydown; and

it

far as
is,

was capable.

In Jones

v.

Selby,

Prec. Ch. 300, the result

that the opinion of the Master of the

Polls was founded plainly on this, of the delivery of possession,

holding, that the gift of the tally, as contained in the hair trunk,

was a good donation mortis causa; and that Lord Cowper avoided
determining that, on the foundation of the subsequent point of a satisfaction or ademption, on which he grounded his determination.

In

all

the instances,

it
;

is

absolutely necessary to be the person's

it

after the party's death

though, in some cases,

to

vest the property

in others not.

But, to explain more fully Lord Conner's opinion

there, I will refer

you back

Drury

v.

Smith, and to Hedges

v.

Hedges, Prec. Ch. 269, which tuz-nod on another point; but there Lord Cowper laid down a necessity of delivery very strongly; where

he says, testator "gives with his own hands." Snellgrovex. Baily (z), determined by me, 11th March, 1744, was urged, where a bond was
given in prospect of death; the manner of gift was admitted; the bond was delivered; and I held it a good donation mortis causa.
(z)

3 Atk. 214.

502

WARD
It w.ii

V.

TURNER.

1073

possession, the

argued, that there was no want of actual delivery there, or bund being but a chose in action; and, therefore,
If I

there was no delivery but of the paper.

case,
there.
it is

went too

far in that

not a reason I should go further, and I choose to stop

I

of opinion that decree was right, and differs from though it is true that a bond, which is specialty, is a chose in action, and its principal value consists in the thing in action, yet some property is conveyed by the delivery; for tke property is vested, and to this degree, that the law books say, the person to whom this specialty is given, may cancel, burn, and destroy it; the consequence of which is, that it * puts it in his power [* 1073 ] to destroy the obligee's power of bringing an action, because no one can bring an action on a bond without a profert in curiam (a). Another thing made it amount to a delivery, that the
this case; for,

But

am

law allows

it

a locality; and, therefore, a

6o as to require a prerogative administration,

bond is bona notabilia, where a bond is in one

this is conclusive; this
9,

diocese and goods in another.

Not that

reasoning I have gone upon,

is

agreeable to Jenk. Cent. 109, case

Jenkins applied that rule of law he mentions there, I know not; but rather apprehend he applied it to a donation mortis causa; for if to a donation inter
relating to delivery to effectuate gifts.
vivos, I

How

doubt he went too Another case is Miller v.

far.

Miller, 3 P.

Wins. 356; which

with

is

a very

strong*case, so far as that opinion goes, to require delivery;

case, I believe,

which

was hinted

at as inconsistent

my

decree; but

there

is

a great difference between delivery of a

specialty, is itself the foundation of the action,

bond (which is a and the destruction

which destroys the demand,) and the delivery of a note payable is only evidence of the contract. Therefore, from the authority of Swineburne, and all these cases, the consequenco is, that by the civil law, as received and allowed in England, and consequently by the law of England, tradition or delivery is necessary to make a good donation mortis cansd ; which brings it to the question whether delivery of the three receipts was a sufficient
of
to bearer, which

delivery of the thing given, to effectuate the gift.

am

of opin-

ion

it

was

not.

It is argued, that

though some delivery

is

necessary, yet delivery

of the thing is not necessary, but delivery of anything

(a)
v.

by way of
See Duflield

An

Elwes,

action may, however, 1 Bligh, N. S. 543.

now be brought without

profert.

503

* 1074

WARD
is sufficient;

V.

TURNER.

symbol

but I cannot agree to that; nor do I find any

authority for that in the civil law, which required delivery to some
gifts, or in

the law of England, which required delivery throughthe civil law requires
it,

out.

Where

they require actual tradition,

the cases in this court, de-

delivery over of the thing.

So in

all

livery of the thing given is relied on,

[

and not in the name

-

* 1074

of the thing, as in the delivery of sixpence, in

golcl v.

Shar-

Shargold;
proved as

if it

was allowed any

will,

effect,

that

would

have been a

gift mortis causa, not as a will, but that

was allowed
is

as testamentary,

and

stood.

The only case

Jones
v.

wherein such a symbol seems to have been held good,

Selby ; but I
the time.

am

of opinion that

amounted

to the

same thing

as

it was in the trunk at was rightly compared to the cases upon 21 Jac. 1, as Ryall v. Roivles (b), and others. It never was imagined, on that statute, that delivery of a mere symbol in the name of the thing, would be sufficient to take it out of that statute; yet, notwithstanding delivery of the key of bulky goods, where wines,

delivery of possession of the tally, provided

Therefore,

it

&c,
is

are,

has been allowed as delivery of the possession, because

of

it

the

way

coming

at the possession, or to
is

make use of

the thing:
If so,

and, therefore, the key

not a symbol, which would not do.

then delivery of these receipts amounts to so

if

much waste

paper; for

ceptance of the stock ?

one purchases stock or annuities, what avail are they after acIt is true, they are of some avail as to the identity of the person coming to receive; but after that is over, they

and are seldom taken care of afterSuppose Fly, instead of delivering over these receipts to Mosely, had delivered over the broker's note, whom he had emThere ployed, that had not been a good delivery of the possession. is no colour for it; it is no evidence of the thing, or part of the title to it; for suppose it had been in a mortgage in question, and a separate receipt had been taken for the mortgage money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and the mortgagee had delivered over this separate receipt for the consideration- money,
are nothing but waste paper,

wards.

that would not have been a good delivery of the possession, nor

given the mortgage, mortis cau?a, by force of that act

(b) 1
(c)

(c).

Nor

Ves. 348.

is quite idle unless Lord Hardwick meant to say that delivery of the deed with a receipt upon the hack of it, not by force of the delivery of the receipt upon the back of it, but by force of the delivery of the

That reasoning

504

WARD
doe*
t
it.

y.

TURNER.
that
* possession of
*
[

1076

uppear

to

me, by

proof,

L075
|

bese three receipts continued with Moselyfrom the time they were given, in February, to the time of Fly's death; for there
is

a witness

who

speaks, that, iD some short timo before his death,

receipts,

Fly

showed him these

and

said,

uncle Mosely.

Therefore, I

am

of opinion,

he intended them for his it would be most dan-

gerous to allow this donation mortis*causa, from parol proof of delivery of such receipts, which are not regarded or taken care of after
acceptance; and
is if

these annuities are called choses in action, there

it

less

reason to allow of

in this case than in

any other chose in

and annuities are capable of a transfer of the legal property by Act of Parliament, which might be done easily; and if the intestate had such an aversion to make a will as supposed, he might have transferred to Mosely; consequently, this is merely legatory, and amounts to a nuncupative will, and contrary to the Statute of Frauds, and would introduce a greater breach on that law than was ever yet made; for if you take away the necessity of delivery of the thing given, it remains merely nuncupative. To this purpose, consider the clauses in the Statute of Frauds (d)
action, because stocks
-

relating to this; which seems to

me

to be applied directly to pre-

vent a mischief of this

sort.

The

clauses are in sections 19, 20, 21,

which have very anxious provisions against dispositions of solemn declaration of the testator, fixing the place of making, and to be reduced into writing in These are in cases where no will was made. six days after making. If Next, comes another requisite, where a will has been made.
22
(e),

this kind, requiring three witnesses,

on is right in point of law, that this gift by delivery of the receipts was .good, yet, though Fly had made a will before, it had been equally good, notwithstand-

what the

plaintiff insists

of the annuities

because this relates to revocation of a will in writing by anything amounting to a testamentary act. It will be good Would not that be against the will, as appears from the cases.
ing that
will,

quite contrary to the plain provision of this clause, taking away

delivery of the thing?
will
(trod,

Here is, then, a revocation of a by words only; viz.: * "This is yours when I die;"'
would be a good donatio mortis causa.
1

* 1076

Per Lord Eldon

in Duffield

v.

Bligh, N. Elwes, (rf) 29 Car. 2, c.

S. 543.
3.

These sections are repealed by 1 Vict. c. 26, s. 2; but as to the wills of {(') soldiers on service, or mariners, and as to the wills of petty officers, seamen, non-commissioned officers of marines, ami marines, so tar as relates to money 12, and 11 Geo. 4 & 1 Will. 1, c. 20. arising from sen ice see ss. 11

&

505

* 1077
all
is

WARD

V.

TURNER.
be overturned,
is
if

these clauses,

therefore, will
it is said,
if

such evidence
it

admitted.

But

this

not allowed,

will be

imI

possible to

make

a donation mortis causa, of stock or annuities,

because in their nature they are not capable of actual delivery.

am of opinion, it cannot, without a transfer, or something amounting to that: and there is no harm in it, considering how much of the personal estate of this kingdom, vastly the greatest proportion of it, subsists now in stock and funds; and all the anxious provisions of the Statute of Frauds will signify nothing,
of stock, attended only
if

a donation

by delivery of the paper, is allowed. It might be supported to the extent of any given value, and would leave these things under the greatest degree of uncertainty, and

amount

to a repeal of that useful

law as to

all

this part of the

property of the subjects of this kingdom.

Therefore, notwithstandis

ing the strong evidence of the intent, this gift of annuities

sufficiently

not

of and I one's If any doubt remains in any opinion not to carry it further. mind, I will add (what I very seldom do, though it has been done

made within the

rules of the authorities;

am

by
if

my

predecessoi-s), that I should be very glad to

settled

by the supreme authority;

is

for

it

have this point highly ought to be settled

there

a doubt, considering so large a property of this kind.

The bill ought to be dismissed therefore, without costs, as to the demand of these annuities, or any other part of the intestate's estate by way of donation mortis causa. But as there was a plain intent of bounty and kindness* to this old man, who lived with him as a servant, and it seems, in expectation of

what should be given at his death, therefore, on the other part of the bill an enquiry should be, what Mosely deserved over and above his rr:aintenance, for services performed during the life The account should be taken from a reasonable time, if the of Fly. plaintiff thinks fit to pay it.

* In Ward v. Turner, which is a leading case on the doctrine of donations mortis causa, Lord Harchcicke, with great learning, discusses the authorities upon the civil law, from which it has been imported into the law of England. See Nuffield v. Elwes, 1 Bligh, N. S. 530; 1 Dow & C. 10; 2 Seton Decrees, 952, 4th ed. In the subsequent case of Tate v. Hilbcrt, 2 Ves. jun. Ill, Ward v. Turner was commented on, and the civil law more fully explained,
[

* 1077

50G

WARD
by Lord Rosslyn, Swinburne," s;iid
in bis

V.

TURNER.

1078

"All the passages in references to different texts of the civil law; and where he defines donatio mortis causa he is coupling the description of a legacy with a very short text of He takes it from a part the civil law; there is a perplexity in it. of the civil law compiled at a time when the subject itself rested in a degree of contradiction, and it was the common topic of debate, whether gifts under such circumstances resembled a gift or a The two first species of which he makes mention, are legacy. . Swinburne has there taken an authority clearly mere donatious. from the Digest, which he refers to, and has copied. It does state these donations, and rates them all under the general title, Donatio mortis causa. '"That is the time when it was in dispute. 'Julianus, libro 17, Digestorum, tres esse species mortis causa donationum ait; unam, cum quis nullo proesentis periculi metu conterritus; sed sola coo-iAliam esse speciem mortis causa donatatione mortalitatis, donat. tionum ait, cum quis imtuinente periculo commotus ita donat, ut statim fiat accipientis. Tertium genus esse donat ionis ait, si quia periculo motus non sic det, ut statim faciat accipientis, sed tunc dehis Lordship, "are only
.

very ablo judgment.

mum, cum mors

"If he

f uerit

insecuta.'

had looked a little further under the same title, he would have found there an opposite, but a much more correct opinion, which finally prevailed, and was established as legal. It is the
twenty-seventh law: 'Ubi ita donatur mortis causa, ut nullo casu revocetur, "mors," (that must bo supplied) causa donandi magis est, quam mortis causa donatio: et ideo perinde haberi debet atque alia quoevis inter vivos donatio; ideoque inter viros et uxores non valet; et ideo nee Falcidia locum habet quasi in mortis causa donatione.' In the Institutions, in the time of Justinian, tit. 7, DeDonationibns, there is a history given of these contests that had prevailed: and a definition is strictly given of what shall be donatio mortis causa. 'Mortis causa donatio est, quce propter mortis fit suspicionem, cum quis ita donat, ut si quid humanitus ei contigisset, haberet is qui accepit, sin autem supervixisset, is, qui donavit, reciperet: vel si eum * donationis pceuituisset, ant [ * 1078
]

Hao mortis causa donationes ad exempluui legatorum redactrc sunt per omnia: nam cum prudentibus ambiguum fuerat utrum donationis an legati instar earn obtinere operteret, et utriusque causae quoedarn habebat insignia et alii ad aliud genus earn retrahebant; a nobis constitutum est; ut per omnia fere legatis connumeretur, et sic procedat queprior decesserit
is,

cui

donatum

sit.

nostra constitutio earn formavit. Et in summa mortis est, cum magis so quis velit habere quam eum, cui donat, magisquo eum cui donat, quam hceredem suum.' Just. Inst., tit, 7, Do Donationibus. There it is clearly and correctly defined, that it had in effect the nature of a legacy, and was liable to debts, and that it was only a gift upon survivorship: and lie danger of

madmodum

causa donatio

507

* LOTS

WARD

V.

TURNER.

suffering these gifts to be taken loosely occasioned, at the same time, with the passage I have read, an ordinance of the emperor, that it should be in writing, with five witnesses. In the case before
v. Turner), in which all the cases were very he takes notice of this perplexity in the reasoning before it was properly defined; but considers clearly, that by the law of England, it cannot be a present, absolute gift, but to take effect on the death of the party." Per Lord Rosslyn, in Tate v. Hilbert, 2 Ves. jun. 118; and see Staniland v. Wilot, 3 Mac. & G. 674. [There are three classes of gifts which are similar in their nature, but which differ in the incidents flowing from the methods of giving title. They are, (1) legacies; (2) Gifts inter vivos; (3) Donatio

Lord Hardtvicke (Ward

fully considered,

mortis causd. A legacy is a gift of personal property by will, becoming complete upon the execution of the will in accordance with the necessary formalities and legal requirements and the death of the testator. In this case no delivery by the donor is necessary to establish the gift, because the legacy does not take effect until the testator is dead. A legacy resembles a donatio mortis causd in that it may be revoked any time before the death of the testator, and if the donee dies first it becomes revoked. If the executor or administrator of the donee has received the subject of the gift and converted it, the donee may maintain an action of assumpsit against him Westerlo v. De Witt, 36 N. Y. 346; Michener v. Dale, 23 Pa. St. 59. A donatio mortis causd differs from a legacy in that it does not require probate and does not pass to the executor or administrator, but is taken against him and not from him: Gass v. Simpson, 4 Cold. 288: Basket v. Hassell, 107 U. S. 602; Marshall v. Berry, 13 Allen, 43; Gaunt v. Tucker, 18 Ala. 27. The gift mortis causd resembles a gift inter vivos because it is made between the parties in the lifetime of each and requires consent and delivery to complete the gift. It differs from a gift inter vivos because it may be made directly from a husband to his wife and is subject to his debts if there is a deficiency of assets: Smith's Eq. Sec. 221. In the case of a delivery to an agent in a gift inter vivos, the authority of the agent is revoked by the death of the donor, but in the case of a gift causd mortis the authority to deliver survives the death of the donor: Sessions v. Moseley, 4 Cusb. 87. A gift causd mortis is again distinguishable from a gift inter vivos and resembles a legacy inasmuch as it is revocable during the life of the donor, while a gift inter vivos is irrevocable after delivery: Doty v. Wilson, 47 N. Y. 580; Johnson v. Spies, 5 Hun. 468; Bloomer v. Bloomer, 2 Bradf. 339; Sessions v. Moseley, 4 Cush. 92;
:

McCarty

v.

Kearnon, 86

111.

291.

causd is different from the above two classes of gifts because it must be made under the apprehension of the near approach of death, while no such necessity exists in either of
gift donatio mortis

the other classes of

gifts.

508


WARD
V.

TURNER.

* 1078

gifts, donationes mortis causa, derived mainly from the civil law, by which law they were reduced to the similitude of legacies and made liable for tho debts of the donor and were to be returned if the donee died before the In the time of Justinian, the Rodonor: 2 Kent's Com. 444. man law was so strict that they were required to be executed in the presence of five witnesses: seje Grymes v. Hone, 49 N. Y. 23; Hatch v. Atkinson, 50 Me. 326. This kind of a gift has been so often recognized, that their validity cannot now bo questioned, and unless there is some statute to the contrary they constitute a part In Pennsylvania they aro held of the law of the different states. to be void under the statute of wills in that state: Headly v. Kirby,
is

The English law on the subject of

6 Harris, 326.]

The following circumRequisites to a Donatio Mortis Causa.] stances are requisite in order to constitute a good donatio mortis causa: The gift must be made by the donor 1. Contemplation- of death. in contemplation of the conceived approach of death: [Duffield v. Elwes, 1 Bligh, N. S. 530; Edwards v. Jones, 1 My. & Cr. 233, 230); otherwise it will not be a good donatio mortis causa {Hedges v. Hedges, Prec. Ch. 209; Walter v. Hodge, 2 Swanst. 92,100); [Champney v. Blanchard, 39 N. Y. Ill; Knot v. Hogan, 4 Metcalfe The gift must be made while the donor is under the (Ky.), 99. fear, apprehension, suspicion or expectation of death, near at hand: Weston v. Hight, 17 Me. 287; Thompson v. Thompson, 12 Texas, 327; Gourley v. Linsenbigler, 51 Pa. St. 345; Irish v. Mutting, 47 Barb. 370. That the donor be "moved by the general considerations of a man's mortality," as is usual, incentive which induces men to make wills; but he must be under some special or peculiar danger at the time: Smith v. Dorsey, 38 Ind. 451; Desheimer v. Gautier,

34 How. (N. Y.) 472.] but a gift will bo presumed to be in contemplation of death, where the donor is "in his last sickness,'' or "languishing on his death-bed:" Miller v. Miller, 3 P. Wins. 356; Lawson v. Laicson, 1 P. Wins. 441; Walter v. Hodge, 2 Swanst. 100; but see the dictum of Chief Baron Eyre in Blount v. Burrow, 1 Ves. [The gift is presumed to be in contemplation of death jun. 546. when the donor is "in his last sickness" or "languishing on his death-bed." If the gift is not made to take effect in futuro with view to the death of the donor, but in prcesenti and irrevocably, it is a gift inter vivos and not causa mortis: Tate v. Leithead, Kay, 658; Mc : Carty v. Kearnan, 86 111. 291. It is not, however, necessary for the donor to explicitly state that he makes the gift in contemplation of death, for such an intention is piesumed in most cases from the circumstances under which it is given, but no such presumption prevails in a case where a man gave a bond to his son conditioned to pay him a sum of money in ten years without regard as to whether he

509

070

WARD

V.

TURNER.

See Candor v. Henderson, 27 Pa. St. 119. should be dead or alive. The gift, in order to constitute a valid donatio mortis causa, should See First Nat. be made in anticipation of death near at hand. Bank r. Balcom, 35 Conu. 351.] The gift must bo intended 2. Effective only on donor s death. to take complete effect onlv after the donor's decease: Edwards v. Jones, 1 My. & Cr. 233; Tate v. Hilbert, 3 Ves. jun. 120. [The gift is not complete until the death of the donor and it may be resumed by him at any time until his death, which must occur within a reasonable time after delivery: Dale v. Lincoln, 31 Me. 422; Gratton If the donor does not die for a considv. Appleton, 3 Story, 755. erable time after he has delivered the article to the donee, the gift In a certain case the donor is not valid as a gift causa mortis. lived eight months and the gift was held not good: Parker v. MarsA gift by an old ton, 27 Me. 196; Jones v. Erown, 34 N. H. 439. man who was in feeble health was held not good as such a gift, as thero was not sufficient peril of death: Robson v. Robson, 3 Del. But it is not absolutely necessary that the donor should Ch. 51.] expressly declare that the gift is to be returned to him if he recover, for if it be made in the extremity of sickness, or in contemplation of death, the law implies a condition, that is to be held only [*1079] by the doneo * in the event of the donor's death. Thus, in Gardner v. Parker, 3 Madd. 184, A. being seriously ill, two days before his death, in the presence of a servant, gave B. a bond, saying at the same time, "There, take that, and keep it." Sir John Leach, V.-C, held the gift to be a donatio mortis causa. "The doubt," said his Honor, "here is, that the donor has not expressed This bond was that the bond was to be returned if he recovered. given in the extremity of sickness, and in contemplation of death; and it is to be inferred, that it was the intention of the donor that If a gift is it shoitld be held as a gift only in case of his death. made in expectation of death, there is an implied condition, that it is to be held only in the event of death: The cases of Laxcson v. Lawson (1 P. Wms. 441); Miller v. Miller (3 P. Wms. 358); Jones And see Tate.y.Leitv. Selby (Prec. Ch. 300), furnish, this rule." head, Kay, 058, 662. [A gift made by a soldier just starting to the front is good as a causa mortis- Virgin v. Gotheir, 42 111. 39; Goss v. Simpson, 4 Cold. 288.] If, however, it appear from the circumstances of the transaction, that the donor intended to make an immediate cr irrevocable gift, [Where a check, payit will not be a good donatio mortis causa. able to bearer as given to the donee by the donor during his last illness, accompanied by terms of present and absolute gift, it was held to be a gift inter vivos and not causa mortis: Rhodes v. Child, 6 1 Pa. St. 18.] Thus, in Edwards v. Jones, 1 My. & Cr. 226, M. C, the obligee of a bond, five days before her death, signed an indorsement, not under seal, upon the bond as follows: "I, M. C, do hereby assign and transfer the within bond or obligation, and

510

WARD
all

TURNER.

1080

interest thereto, unto and to the use of my power and authority for the said E. E. to sue for and recover the amount thereof, and all interest now due, or It was argued, that if the gift hereafter to become due, thereon." could not, in consequence of its being incomplete, take effect as a donatio inter vivos, it would take effect as a donatio mortis causa. But Lord Cotlenham, held that it could not take effect as a donatio mortis causa, as an absolute ami irrevocable gift was intended. See also Moore v. Moore, 18 L. E. Eq. 474, 484. Although there he an actual legal transfer of property such as, standing by itself alone, would amount to a complete gift inter

my

right, title,

and

niece, E. E., with full

vivos

it

nexed

(o

will nevertheless be a donatio mortis causa if there be anthe gift a condition either express or implied that it is

only to take effect in the event of the death of the giver, and upon his recovery the donee will be a mere trustee: (Staniland v. Willott, 3 Mac. <fc G. 604) unless there be a confirmation of the gift, so
it into or give it the effect of, an absolute irrevocable [If the gift is expressed to take effect gift inter vivos {lb. 681). immediately, but if there is nothing said as to whether it is t j take effect absolutely, immediately and irrevocably, or only absolutely at the donor's death, the presumption in most cases is, that if the donor was at the time in danger of death, it is a gift causa mortis and not inter vivos.~\

as to convert

3. ^Delivery. There must be a delivery or traditio of the subject of the gift to the donee for his own use. [Thocases aro remarkable for the great strictness with which they regard the necessity and certainty of delivery. Thero must be a delivery consisting of the manual tradition of that subject of the gift, or something which is

to or a substitute for such delivery: Campbell's Estate, 7 Pa. St. 100; Cose v. Dennison, 6 R. I. 88; Carr v. Silloway, 111 Mass. 24; Grymes v. Hone, 49 N. Y. 17; Blasdel v. Locke, 52 N. H. 238; Resch v. Senn, 28 Wis. 280.] ( Tate v. Htlbert, 2 Ves. jun. 120); or upon trust for another person (Drury v. Smith, 1 P. Wms, 405; Farquharson v. Cave, 2 Coll. 367; Moore v. Darton, 4 *De G. &Sm. 517; and see Bibby v. Coulter, Eidg. Ca. [ * 1080 J innex. Boyd, 8 I. R. Eq. 600); or for a t, Hard. 206 n.; particular purpose (see Blount v. Burrow, 4 Bro. C. C. 71), where the donor, twolve days before his death, delivered to the donee four India bonds, to enable him to carry on and maintain a law-suit, which the

tantamount

donor had commenced. Lord Commissioner Eyre held it to be good donatio mortis causa, but he directed an issue, to try whether the bonds wero delivered. It was, indeed, argued in Hambrooke v. Simmo?is, 4Russ. 25, that a
donatio mortis causa could not be coupled with a condition, rroade subject to a trust; but asan issue was directed, which left 1he question of law, as well as of fact, to the consideration of a court of law, the point was not decided. However, in the subsequent case of Hills v. Hills, 8 M. & W. 401, where a person on her death bed gave a
c

511

* 10S1

WARD

V.

TURNER.

pocket book, containing 80/. in cash and notes, to her brother, wishing that he should bury her, and that he should have all she had, it was held in the Exchequer, by Abinger.C. B., Parke, B. Alder son, B., and Rolfe, B., that it was a good donatio mortis causa, although coupled with a trust. "I cannot see," said Mr. Baron Rolfe, "how the annexation of a trust to the gift can make any difference. If it be lawful so to give the property out and out to the party for his own use, I cannot see that it makes any difference, that with it he is to pay for a particular thing. If a man on his death bed gives another 1000Z. is it any addition to the evils attending this mode of bestowing property, that he attaches a condition to it; as, for instance, that he stipulates, that his brother shall receive an outfit to India? The case of Blount v. Burrow, is expressly in point, and disposes of the question; and I have no doubt that other cases might be found." These decisions rightly follow the civil law, according to which it is clear, that a donatio mortis causa might be made the subject "Eornru quibus mortis causa donatum of a trust or conaition. est, fide committi quoquo tempore potest; quod fidei commissum, haeredes, Salva Falcidise ratione, quam in his quoque donationibus examplo legatorum, locum habere placuit, prsestabunt. Si pars donationis fidei commisso teneatur, fidei commissum quoque munere Falcidire fungeter. Si tamen alimenta proestari voluit, collationis totum onus in residuo donationis esse respondendum erit ex defuncti voluntate, qui de majore pecunia prsestari non dubie voluit Integra." Dig. lib. 31, tit. 1, I. 77, s. 1, cited 4 Buss. 27, 2 Coll. 356. "Ab eo, qui neque legatum neque fidei commissum, neque hsereditatem vel mortis causa donationem accepit nihil per fidei * 1081 ] commissum relinqui potest." Cod. lib. 0, tit, *42, 1. 9 [ cited 4 Buss. 27. Sed vide Bibby v. Coulter, Bidg. Ca. t. Hard. 206 n. A delivery in order to be effctual, must be made either to the donee himself or to some one for him. [It is well settled that the delivery need not be to the donee personally, but it may be made to any person as agent for the donee provided the agent retains possession of the subject and does not permit the donor to recover possession again: Meach v. Meach, 24 Vt. 595; Jones v. Deyer, 16 Ala. 221; Baymond v. Sellick, 10 Conn. 480; Kilby v. Godwin, 2 Del. Ch. 61; Michener v. Dale, 23 Pa. St. 59; Dale v. Lincoln, 31 Me. 422; Sessions v. Moseley, 4 Cush. 87.] A mere delivery to an agent, in the character of agent for the giver, will not be sufficient [If the person to whom the thing is delivered is strictly an agent of the donor, then the delivery to him is not sufficient unless the delivery is made by the agent and the thing accepted by the donee before the donor's death. On the other hand, if the delivery is not made to the donee before the death of the donor the authority of the agent to make the delivery is revoked by the donor's death: (Farquharson v. Cave,. 2 Coll. AVilcox v. Matteson, 53 Wi,s. 23.] 356, 367) the delivery also, when there are 'any declarations made
;

512

WARD

V.

TURNER.

* 1081

by the donor relative to the subject-matter of the gift, should be contemporaneous with them ( Thompson v. Heffeman, 4 D. & War. Esp 664; Dunne v. Boyd, 8 I. R. Eq. 285; Hawkins v. Blevntt, G0 J); and even if (here be a delivery to the donee or to some one for him, it will not be good, unless the donor (subject of course to the ordinary condition making void the gift, which is always either expressed or implied incase of his recovery) parts with the dominion [Words or expressions of the donor, no mat over the thing given.
'1
:

how clearly they may be expressed nor how perfectly they indicate his intention will not be sufficient without delivery: Zimmerman v. Streeper, 75 Pa. St. 147; McGrath v. Reynolds, 116 Mass. Thus, in Hawkins v. 56(5; Carr v. Silloway, 111 Mass. 111.] Blewitt (2 Esp. 663), in an action of trover for a box containing money and wearing apparel, by an administrator, the case on the part of the plaintiff Avas, that the intestate in his last illness ordered the box to be carried to the house of the defendant, who was his aunt, and to be delivered to her; but he gave no other direcIt was, tions respecting it, nor said anything about giving it to her. however, further given in evidence, that on the next day, the key was brought to the intestate, who desired it to be taken back, sayThe ing that he should want some articles of clothing out of it. Lord Kenyon, C. J., said, "In the case of plaintiff had a verdict. a donatio mortis causa, possession must be immediately given; that has been done here: a delivery has taken place, but it is also necessary that by parting with the jwssession, the deceased should also part with tlie dominion over it. [When the donor makes a delivery of the subject of the gift he must part with all interest in it, for if he continues to exercise control over it, or if after he has once delivered it, re-obtains possession of it, although not intending to revoke the gift, it nevertheless becomes revoked unless it appears that he acted as the bailee or agent of the donee or under express or implied license from him: Cutting v. Gilman, 47 N. H. 147; Hatch v. Atkinson, 56 Me. 324; Phipps v. Hope, 16 Ohio, 586; Trough's Estate,
ter

75 Pa.

St. 115.

donor delivers the subject of the gift as bonds or notes but reserves the right to himself to collect the interest on them during his life, there is not sufficient parting with the property as to renHitch v. Davis, der the notes or bonds valid gifts by causa mortis 3 Md. Ch. 266; Brown v. Brown, 18 Conn. 410; Hutington r. Gilmore, 14 Barb. 243; Curry v. Powers, 70 N. Y. 212.] That has not been done here. The bringing back the key by her the next morning to the intestate, and his declaration that he should want one of the articles of his apparel contained in it, are sufficient to show that he had no intention of making any gift or disposition of tho box. It seems rather to have been left in the defendant's care for safe custody, and was so considered by herself." See also Reddel v. Dobree, 10 Sim. 244; Tapley v. Kent, 1 Robert, 400; Warriner v. Rogers, 16
If the
:

L. R. Eq. 340.
* 33

WHITE ON EQUITY.

513

* 10S2

WARD

V.

TURNER.

delivery of a thing by way of symbol, according to the opinion Lord Hardivicke, in the principal case, is not a sufficient delivery. [Where it is possible to make an actual delivery a symbolic or conof
v. Berry, 13 Allen, 43; Eockwood v. Wiggin, 16 Gray, 402; Parish v. Stone, 14 Pick. 203; Hatch v. Atkinson, 56 Me. 324.] Thus, he held that the delivery of the receipts for South Sea Stock was not a sufficient delivery to constitute a donatio mortis causa but he said that an actual transfer, or something amounting to that, would have been necessary: ante, p. 1075. The same conclusion has been arrived at with regard to * of railwav stock: il/owe v. Moore, 18 [ *1082] scrip-certificates L. Eq. 474. And it has been held that the delivery of the book of a depositor in a savings-bank, is not a sufficient delivery to constitute a donation of the money deposited: WGonnell v. Murray, 3 I. E. Eq. 460. Nor will the delivery of a note not payable to the bearer (Miller v. Miller, 3 P. Wms. 356); [In the following cases the delivery of a bank book or certificate of deposit have been held valid as gifts mortis causa: Dean v. Dean, 43 Vt. 337; Hill v. Stevenson, 63 Me. 364; Camp's Appeal,' 36 Conn. 88; Pierce v. Saving Bank, 129 Mass. 425; Sheedy v. Roach, 124 Mass. 472. But an order upon

structive delivery will not be sufficient: Marshall

the bank

is not good as such a gift: Consler v. Snowden, 54 Md. 175, nor the delivery of the donor's check alone: Meach v. Meach, 24 Vt. 591; Nicholas v. Adams, 2 Wharton, 17.] nor in general of a cheque upon a banker (Tate v. Hilbert, 2 Ves. jun. Ill; 4 Bro. C. C. 289), unless it were presented or negotiated (Rolls v. Pearce, 5 Ch. D. 730, W. N. April 28, 1877, p. 98; Hewitt v. Kaye, 6 L. E.

Eq. 198) before the donor's death, although the pass book be delivered up with the cheque (Beak v. Beak, 13 L. E. Eq. 489), be a See also Bromley v. Brunton, 6 L. E. Eq. 275, sufficient delivery.

where the

this, that a

was inter vivos. The ground of these decisions is cheque has no relation to the donor's death it is a gift to take place immediately, and, being merely an authority to receive a sum of money, it is effectually revoked by the death of the donor. In the recent case of In re Mead, 15 Ch. D. 651, a testator who held a banker's deposit note for 3700Z. in his last illness, two days before his death expressed a wish to give 500Z., part of the amount, to his wife. At his request a friend filled up a seven days' notice to the bank to withdraw the deposit, and the testator signed it; the
gift
:

The testator afterwards friend then took the notice to the bank. signed a form of cheque, which was on the back of the note, "Pay The self or bearer 500Z.; ""the note was then handed to the wife. The testator died before the expiration of the seven days' notice. practice of the bank was, when a customer withdrew part of a sum, which he had placed on deposit, to give him a fresh note for the balance. It was held that there had not been a valid donatio
mortis causa of the 500Z., inasmuch as the cheque for that

amount

514

WARD
son

V.

TURNER.

1083

was not payable till after the testator's death. However, in Laic v. Lawson, 1 P. Wins. 41, where A., during his last illness, drew a bill upon a goldsmith for the payment of 100/. to bis wife, with a written indorsement that the money was "to buy her mourning," was held that she was enand A. delivered the note to his wife, And Lord Rosstyn in Tate v. Hilbert, 2 Ves. titled to the money. jun. Ill, notwithstanding Lord Hardwicke, in the principal case, throws some doubt upon it, considered the case perfectly well decided. "For," he observed, "taking the wbole bill together, it is an appointment of the money in the banker's hands to the extent of
it.

written appoint1(H)/., for the particular purpose expressed in a ment; which is a purpose that necessarily supposes his death." [Choses in action, such as a check, bonds, promissory notes, bills of exchange and certificates of deposit, may be transferred by delivery No indorsement is necessary Ashbrooke v. Ryan, 2 Bush, merely. 228; Westerlo v. DeWitt, 36 N. Y. 340; Contantv. Schuyler, 1 Paige, This is true whether the 310; Borneman v. Sidlinger, 15 Me. 429. paper is negotiable or not: Bates v. Kempton, 7 Gray, 382; Dale v. Lincoln, 31 Me. 422; Craig v. Craig, 3 Barb. Ch. 76.] In Jones v. Selby, Prec. Ch. 300, where it was held by Sir John Trevor, M. R, that the delivery * of the key of [ * 1083] a trunk, with words of gift of the trunk and its contents, was a good delivery of a tally upon government for 500/. contained
:

trunk, Lord Hardwicke observes that the transaction to the same thing as a delivery of possession of the [In Coleman v. tally, provided it was in the trunk at the time." have no doubt that a Parker, 114 Mass. 30, the Court said: trunk with its contents might be effectually given and delivered in such a case by the delivery of the key. If the key in this case had
in

the

"

amounted

"We

been placed in the hands of the witness, the donor relinquishing all dominion and control over it and parting with it absolutely, or if by the direction of the donor the witness had taken it into her possession and control, there would have been a sufficient delivery to make out a full title in the plaintiff." The cases cited by the Court do not however support the proposition there laid down, that a delivery of the key of a trunk is a good delivery of the trunk with its contents. The doctrine which has been followed appears to be, that the delivery of the key of a trunk or box in which valuables are kept, which are capable of being taken, into the hand, and may be delivered by being passed from hand to hand, is not a valid delivery of such articles: Hatch v. Atkinson, 56 Me. 324. A constructive or symbolic delivery will be sufficient if the articles are large or cumbersome.^ In Boutts v. Ellis, 4 De G. M. & G. 249, a person 4 days before his death said to his wife: " I am a dying man, you will want money On the following day he signed before my affairs are wound up." and delivered to her a crossed cheque upon his bankers, for 1000/., 515

1084

WARD

V.

TURNER.

and on the next day but one, remembering that the cheque was crossed, he asked a friend who visited him to take it; and give the wife another for it; which the friend did, but his cheque was postThe donor's cheque was paid before his death to his friend, dated.
who, after that event, gave to the widow a cheque not post-dated for It was held by the Lords Justices, affirming the decision the other. of Sir J. Romilly, M. R., (reported 17 Beav. 121), that the transaction constituted a good donatio mortis causa. There may be a donatio mqrtis causa of a bond, Snellgrove v. Baily (3 Atk. 214, Ridg. Ca. t. Hardw. 202) though not of a mere simple contract debt, nor by the delivery of a mere symbol. Per Sir John Leach, V.C., in Gardner v. Parker, 3 Madd. 185; and see Blount v. Burrow, 4 Bro. C. C. 71; Hirst v. Beach, 4 Madd. 351, So, likewise, of bank notes 356; Clavering v. Yorke, 2 Coll. 363, n. (Shanley v. Harvey, 2 Ed. Rep. 125; Ashton v. Daivson, Sel. Ch. Cas. 14); of a deposit-note given by a bank to the donor (Witt v. Amis, 1 Best. & Sm. 109; Moore v. Moore, 18 L. R. Eq. 474; Dunne v. Boyd, 8 Ir. Eq. 609); and, it seems, also, of all other notes, or bills payable to the bearer (Miller v. Miller, 3 P. Wms. 356; Hill v. Chapman, 2 Bro. C. C. 612; and see Jones v. Selby, Prec. Ch. 300; Bibby v. Coulter, Ridg. Ca. t. Hard. 206, n.), or to order, though not indorsed by the donor (Rankin v. Weguelin, 27 Beav. 309; Veal v. Veal, lb. 303; In re Mead, 15 Ch. D. 651). And a cheque payable to the donor or order, and (without being indorsed by him) given by him during his last illness to the donee, is on the same footing as a bill of exchange or promissory note payable to the donor or order, and will pass to the donee as a donatio mortis causa: Clement v. Cheeseman, 27 Ch. D. 631. [A gift of a bill of exchange payable to self or order is valid as a donatio mortis causd, though unindorsed and though it does not fall due until after the donor's death: Waring v. Edmonds, 11 Md. 424; Brown v. Brown, 18 Conn. 410; Harris v. Clark, 2 Barb. 56; Caldwell v. Renfrew, 33 Vt. 213; Turpin v. Thompson, 2 Metcalfe (Ky.), 420; Brooks v. Brooks, 12 S. C. 422; Gibson v. Hibbard, 13 Mich. 214.] The distinction between the donor's cheque, and the cheque of another person for which the donor has given value, as the subject matter of a donatio mortis causa, assuming neither to be presented for payment before the donor's death, are well * 1084 ] stated by * Chitty, J. "In Byles on Bills (12 Ed. p. 176) [ it is stated that a cheque drawn by the donor upon his own banker, cannot be the subject of a donatio mortis causa because the death of the drawer is a revocation of the banker's authority to pay. But when the owner is dealing with the cheque of another man it stands on entirely the same footing as a bill of exchange or promissory note, which according to Veal v. Veal (27 Beav. 303) may well be the subject of a donatio mortis causa. [A gift of the donor's own cheque if not payable until after his death, is not valid as a donatio mortis causa, because in order to constitute a valid gift of this kind

516

WARD

V.

TURNER.

1085

there must be a delivery of the subject matter during the life of the donor, and the check is not the subject of the gift, but the money which it represents, and if it is not payable until the death of the donor there can be no delivery during the donor's life: Baskett v. For this purpose there is no difference beHassell, 107 U. S. 002.] tween the cheque of another man, and a bill of exchange or promis-

sory note." The delivery of a bond is still sufficient as a donatio mortis causa of the debt for which it is a security, although an action may, in certain cases, be maintained at law without profert of the bond: Dufiield v. Elwes, 1 Bligh. N. S. 543. So likewise a policy of insurance on the life of the donor will pass by delivery as a donatio mortis causa: Witt v. Amis, 1 Best & Sm. 109; Amis v. Witt, 33 Beav. 619. A delivery of the mortgage deeds of real estate will constitute a See Duffield v. Elwes, 1 Bligh, N. S. valid donatio mortis causa. In that case, a man, in contemplation of speedily 497; Dow & C. 1. approaching death, wishing to make a larger provision for his daughter than he had done by will, delivered, or caused to be delivered to her, certain deeds, which consisted of, 1. A conveyance in fee of lands to secure 2927Z., with the usual covenant for payment of the money

and a bond by way of collateral security. 2. An assignment of a mortgage debt of 30,000^., and of a judgment for that sum recovered on a bond, with the conveyance of the land, and the usual covenant for the payment of the money. It was held by the House of Lords, reversing the decision of Sir J. Leach, V.-C. (reported 1 S. & S. 239) that there was a good donatio mortis causa, and that "If," said the daughter was entitled to the benefit of the securities. Lord Eldon, "the delivery of a bond would, as it is admitted (notwithstanding any change in the doctrine about profert) if the delivery of a bond would give the debt in that bond, so as to secure to the donee of that bond the debt so given by the delivery of the bond, the question is, whether, the person having got, by the delivery of that bond, a right to call upon the executor to make his title by suing or giving him authority to sue upon the bond, what are we to do with the other securities if they are not given up? But there is another question, to which an answer is to be given: What are we to do with respect to the other securities, if they are delivered? In the one case, the bond and mortgage are delivered; in the other the * judgment, which is to be considered on the same [*1085J ground as a specialty, is delivered; with that, the evilent,

The instrument containing dences of the debts are all delivered. the covenant to pay is delivered. They are all delivered in such a way that the donor could never have got the deeds back again. Then the question is, whether regard being had to what is the nature of a mortgage, contradistinguishing it from an estate in land, those circumstances do not as effectually give the property in the debt as if the debt was secured by a bond only?
517

* 1086

WARD

v.

TURNER.

" The opinion which I have formed is, that this is a good donatio mortis causa, raising by operation of law a trust; a trust which, beinc raised by operation of law is not within the Statute of Frauds, but a trust which a court of equity will execute." See also Meredith v. Watson, 17 Jur. 1063; Re Patterson, 10 Jur. N. S. (V.-C. S.) [A donatio mortis causa may be made subject 578; 12 W. R. 941. to a trust or condition, the terms of which are prescribed by the donor: Currie v. Steele, 2 Sandf. 542; Clough v. Clough, 117 Mass.

83; Barclay's Estate, 11 Phila. 12.] The delivery by a creditor to the debtor or his agent of that which is essential to the recovery of the debt is, it seems, sufficient. Thus, in Moore v. Darton, 4 De G. & Sm. 517, where, upon a loan, the borrower had given the lender a receipt in the following form: "Received of Miss Darton 5007., to bear interest at 41. per cent, per annum," it was held by Lord Justice Knight Bruce (then V.-C) that a delivery of the receipt to an agent of the borrower by the creditor on her death-bed stating that she wished the debt to be cancelled, was a good donatio mortis causa. It is clear that a donatio mortis causa cannot be made merely by parol, without delivery, as in the case of the alleged gift of the household goods and plate in the principal case: see Tate v. Hilbert, 2 Ves. Jur. 120; Smith v. Smith, 2 Stra. 955; Warriner v. Rogers, [The reason why delivery is so essential to the 16 L. R. Eq. 340. validity of these gifts, is because they are usually claimed upon parol evidence; but where the intent of the donor is proved by a writing under his hand a delivery will be presumed from very slight circumstances: Ellis v. Secor, 31 Mich. 185; Brinckerhoff v. Lawrence, 2 Sandf. Ch. 400.]

In Spratley

sufficient delivery

watch at you a present of

1 Holt. 10, Gibbs, C. J., held that it was a where a person in extremis said, "I have left my Mr. R.'s at Charing Cross: fetch it away, and I will make v.

Wilson,

it;" but, upon this case being cited in Bunn v. 7 Taunt. 227, Gibbs, C. J., desired that it might be laid out of the consideration of counsel, for that, immediately after that trial, he perceived that what he had somewhat unprovidently thrown out could not be maintained, because a delivery was wanting, and he had accordingly written a remark to that effect at the end of his

Markham,

own
In

note of the case.

Bunn v. Markham, 7 Taunt. 224, a person supposing himself in extremis, caused Indian bonds, bank notes, and guineas, to be brought out of his iron chest, and laid on his bed; he then caused them to be sealed up in three parcels, and the amount of the contents to be written on them, with the words, "For Mrs. he then directed the brother ] and *Miss C," the plaintiffs; to replace them in the iron chest, to be locked up, the keys to be sealed up, and directed "to be delivered to, J." (his solicin itor), and one of his executors, after his decease, and replaced his own custody near his bed; and afterwards spoke of this property,
[

* 1086

518

WARD

V.

TURNER.

1086

as given to the plaintiffs. It was held not to be a donatio mortis causa, for want of a sufficient delivery, and on accouut of the donor continuing in possession. See, also, Farquharson v. Cave, 2 Coll. 850; Walsh v. Stnddart, 4 D. & W. L59; Thompson v. Heffernan, 4 D. & \V. 285; Powell v. Hellicar, 27 Beav. 261 Maguire v. Dodd, [See Coleman i\ Parker, 14 Mass. 30, where 9 Ir. Ch. Hep. 452. the donor placed the subject of the gift in an envelope and wrote on the back of it directions for its delivery, but retained control of it until his death it was held not to be a valid donatio mortis causa Zimmerman v. Streeper, 75 Pa. St. 147; Phipps v. Hope, 10 Ohio, 586; Trough's Est., 75 Pa. St. 115.] In the principal case, Lord Hardwicke says, "that a gift mortis causa may be made in writing as well as otherwise, and that so it might by the Roman and civil law." And see his observation in Johnson v. Smith, 1 Yes. 314; and Lord Rosslyn, in Tate v. HiVbert 2 Yes. jun. 120, says, that ''perhaps it might not be difficult to conceive that it might be by deed or by writing." But a gift in writing, without delivery, would probably be considered as testamentary: Rigden v. Vallier, 2 Ves. 258; Tapley v. Kent, 1 Robert. 400.
; 1

Evidence to establish a donatio mortis causa.] The evidence to establish a donatio mortis causa should be clear and satisfactory, especially in those cases where the relation between the donor and

donee is such as to give rise to suspicion that undue influence may have been used, as in the case of an alleged donation from a client to his solicitor ( Walsh v. Studdart, 4 D. & W. 159), or from a person in extremis to a priest attending him to administer the last offices of religion ( Thompson v. Heffernan, lb. 285). [The law watches the transfer of these gifts with a jealous eye and they are subject It is unwilling that they should take the to the closest scrutiny. place of wills, because while they are less troublesome, they are open to the objections of uncertainty which the law desires to avoid in
reference to wills by
cution.
its

precautions and provisions as to their exe-

Owing to the peculiar character of these gifts and the manner and circumstances under which they are usually given, there exists vast opportunities for perjury and fraud on the part of the donee, this is tho reason they have always been regarded with strong suspicion and nothing but the strongest and most unequivocal evidence
will be sufficient to support them.]
is no absolute rule of the Court that a gift of this kind not be established by the evidence of the claimant alone. [The burden of proving the gift is on the donee, and in order to sustain the gift he must show a proper delivery: Conklin v. Conklin, 20 Hun. 278.] M'Gonnell v. Murray, 3 I. R. Eq. 465, but there is no class of questions in which it is more important that corroborating testimony should be insisted on. lb. [If there is no one to prove

There

may

519

* 1087

WARD

V.

TURNER,

the gift but the do-nee himself it will not be allowed to take effect: v. Bloomer, 2 Bradf. 319; Rockwood v. Wiggin, 10 Gray, 402; Westerlo v. DeWitt, 35 Barb. 215; Conklin v. Conklin, 20 Hun. 278.] "The civil law," says the Master of the Rolls of Ireland, "required five witnesses to establish such a gift; a will reIt is difficult to suppose that it was not by an quires two with us. oversight that the legislature made no provision respecting gifts of this sort; but, though our law does not define the number of witnesses required, it is laid down in all the cases where judges have commented on the evidence necessary to support a donatio mortis The proof .causa, that it must be established by clear evidence. must be more than is required merely to turn the scale in favour of one of two equally probable conclusions. [The donee must show how the subject matter was delivered and that the transfer was made with the intention to pass the right of property, and ambiguous expressions will be interpreted against the donee, and in favor of the donor or his personal representatives: Smith's Eq. Sec. 223; Boudreau v. Boudreau, 45 111. 480; Hebb v. Hebb, 5 Gill. It must establish to the * satisfaction of the Court [ * 1087 J 506.] that the claimant's case is not only probable, but reasonIn the case of Cosnahan v. Choice (15 Moo. ably free from doubt. P. C. C), some observations are made as to the danger of the Court Without any intenacting on the evidence of the claimant alone. tion to commit perjury there is a natural tendency in the human mind to believe what we wish. Quod volumus facile credimus. A very slight change perhaps of a single word may make a very material difference in the meaning of the language deposed to. There is great danger of its being misrepresented by any witness from being originally misunderstood or inaccurately remembered; but a claimant, proving his own case, has to guard himself against an additional tendency to both sources of error. There is, of course, all the suspicion always attaching to an interested witness as regards candour and truthfulness: WGonnell v. Murray, 3 I. R. Eq. 465. Where there is any doubt, whether in point of fact, there was that which would constitute a good donatio mortis causa, if in point of law, the subject of it can be made the subject of a donatio mortis causa, it is a very familiar thing to direct an issue or issues to try Per Lord Eldon, in Duffield v. Elwes, 1 Bligh, N. S. 531; that fact. and see Blount v. Burrow, 4 Bro. C. C. 71; Gillespie v. Croker, 16 I. [A gift made by the donor in his last sickness to the Ch. Rep. 182. person in attendance, will be viewed with suspicion and will not be Smith v. Dowdeclared valid only on full and conclusive evidence: ney, 3 Iredell, 130. The gift, like wills, may be annulled on the ground of mental incapacity VanDuson v. Rowley, 8 N. Y. 358. Also on the ground Todd v. Grace, 33 Md. of duress, fraud, palpable error or force 188; Samuel v. Marshall, 3 Leigh, 568.]

Bloomer

520

WARD
Distinction between

V.

TURNER.

* 1088

vivos

a donatio mortis causd, and a donation inter note number one.] A donatio mortis causa resembles a legacy, inasmuch as it is ambulatory and incomplete during the life of the donor, and may be revoked by him at any time before death, and is liable to his debts on a deficiency of assets [The donee takes the gift subject to tho claims of the cred-

and

legacies.]

[Seo

itors of the donor.

gift is

If there is a deficiency of assets at the time tho the subject of the gift may be taken by the creditors of the donor or by his assignee; 2 Kent's Com. 448; Mitchell v. Pearse, The gift is not 7 Cush. 350; Chase v. Redding, 13 Gray, 418. void as to subsequent creditors unless made under actual or anticipated insolvency, or with a fraudulent purpose as to future credSexton v. Wheaton, 8 Wheaton, 229; Hawkins v. Moffit, 10 itors B. Mon. 81; Clark v. Depew, 25 Pa. St. 509; Hudnal r. "Wilder, 4 McCord, 294; Gaunardu. Eslava, 20 Ala. 732; Thompson v. Dougherty, 12 S. & R, 448.

made

The personal representatives of the donor have no rights paramount to those of the donee Brown v. Brown, 18 Conn. 414; Duf:

Elwes, 1 Bligh. (N. S.) 533; Brinkerhoff v. Lawrence, 2 (Smith v. Casen, 1 P. Wms. 406); is subject to Sandf. ch. 406.] 8 & 9 Vict. c. 76); and may be legacy duty (36 Geo. 3, c. 52, s. 7 made to the wife of the donor Jones v. Selby, Prec. Ch. 300: Johnson v. Smith, 1 Ves. 314; Tate v. Leithead, Kay, 658, 659. [A wife may make a gift causd mortis of all her personal estate to a third person to the total exclusion of her husband without his consent, and thus deprive him of that portion of her personal property that he would otherwise be entitled to after her death: Nicholas v. Adams, 2 Wharton, 17; Dale v. Lincoln, 13 Me. 422; Marshall v. Berry, 13 And in these respects Allen, 43; Chase v. Redding, 13 Gray, 418.] (except as to a gift to a wife, ante, p. 313) it differs from a gift inter
field
v.
;
:

vivos.

As to stamp duties on account of any property, taken as a donatio mortis causa made by any person dving on or after the 1st day of June, 1881, see 44 & 45 Vict. c. 12, s. 38.

A donatio mortis causa differs in another important respect from a gift inter vivos, inasmuch as a gift mortis causa must be accompanied by a delivery, whereas a gift inter vivos may be complete if made by deed or if made by parol declaration in the case of perSee notes to Ellison v. Ellison, ante, p. 301, 313. The sonalty. notes of Mr. Serjeant Manning, to Lunnx. Thornton, 1 C. B. 381; and The London and Brighton Railway * Com- [ * 1088 | party v. Fairclough 2 Man. & Gr. 691; and the note to
;

David. Conveyancing,

vol. 2, p.

695, 3rd ed.

But a donatio mortis causa differs from a legacy, inasmuch as it does not require probate, and is taken against, and not from, the executor, whose assent to its enjoyment is not necessary and its vaSee Thompson v. Hodglidity might be tried by an action at law.
521

* 10S8
sow, 2
sell,

WARD

V.

TURNER.

Stra. 777. [Gass v. Simpson, 4 Cold. 288; Basket v. Has107 U. S. 602.] "Where the property in a thing made the subject of a donatio mortis causa does not pass by delivery, as, for instance, in the case of a bond, the donee may, upon indemnifying the personal representatives of the donor, sue in their names for the debt secured by such bond Gardner v. Parker, 3 Madd. 184. If the donor recover of his illness, or if he resume the possession Bunn v. Markham, 7 Taunt. 231. of the gift, it will be defeated [The gift is not complete until the death of the donor, and it may be resumed by him at any time, and if the donee refuses to deliver it to the donor upon request he may recover by an action at law Parker v. Marston, 27 Me. 196; Merchant v. Merchant, 2 Bradf. 432. The gift, therefore, becomes complete only upon the death of the donor, which must result in a reasonable time after deliverv Raymond v. Sellick, 10 Conn. 480; Parish^. Stone, 14 Pick. 198; GraV tan v. Appleton, 3 Story, 755.] But if the donor does not resume the gift, he cannot revoke it by will, for upon his death the gift becomes complete. See Jones v. Selby, Prec. Ch. 300; it was, however, decided in that case, that a donatio mortis causa may be satisfied by a legacy. It is clear that the donee may be put to his election, if the subject of the donation is bequeathed to another person, and some benSee Johnson v. Smith, efit is conferred by the will upon the donee. [As a general rule, an act which will operate to revoke 1 Ves. 314. a will, will have the same effect upon a donatio mortis causa Parker v. Marston, 27 Me. 196; Bloomer v. Bloomer, 2 Bradf. 339. If the will contains a legacy to the donee this will operate to revoke a previous gift to him. The presumption being that it was given in substitution for the gift. But if the donee can show that it was the intention of the donor to give both, then the Courts will carry out such intention by decreeing that the donee is entitled to both the legacy and gift.] The Wills Act (1 Vict. c. 26) has not abolished donations mortis causa, and they have been since expressly recognised by 8 & 9 Vict. c. 76, s. 4. See Moore v. Darton, 4 De 6. & Sm. 519.
:

[Doctrine of Gifts Mortis Causa Restated

sentials of a Donatio Mortis Causa: 1. The gift must be made with a
2.

There

are three es-

view to the donor's death. There must be an express or implied intention that the gift should only take effect on the decease of the donor by his existing
disorder.

There must be a delivery of the subject matter of the donation some one on his behalf. This mode of distributing the personal effects of persons in periculo mortis by donatio causa mortis is now resorted to not only by persons of small means, who are either ignorant of the use and pur522
3.

to the donee, or to


WARD
V.

TURNER.

1088

pose of wills, or who wish to avoid the expense and trouble attending the execution of the same, but also by persons in better circumstances as a convenient mode of disposing of particular favorite effects.

It is in itself a substitute for a will.

:

In regard to the heads above mentioned This kind of gift is often of great advantage to the donor, who may be taken suddenly ill and not' have time to execute a formal will. It is not necessary in order tq make this kind of a gift that if he is in danthe donor should be suffering from some disease ger of death from any cause it is sufficient. 2. The gift is never complete until the death of the donor and it may be resumed by him at any time, the gift is " defeasable by reclamation, the contingency of survivorship or deliverance from
;

peril."

There 3. The cases are very strict upon the subject of delivery. must be an actual delivery. Great nicety, exactness and precision have been manifested by the Courts upon the question of delivery and in all cases an intention to give, and a delivery must concur,
is sufficient without the other. A delivery to delivery need not be to the donee personally. the husband or wife of the donor for the donee will be a good delivery Caldwell v. Renfrew, 33 Vt. 213; Bowers v. Heard, 10 Mass. 427; Clough v. Clough, 117 Mass. 83; Southerland v. Southerland, The gift may also 23 Pa. St. 59; Grover v. Grover, 24 Pick. 261. be the subject of a trust and may be made by a married woman. For the purposes of suit the donee may sue the executor or administrator of the donor in a Court of Equity, for Courts of Equity maintain a concurrent jurisdiction in all cases of gifts causa mortis

neither

The

where there is no plain, complete and adequate remedy at law. The law does not favor gifts causa mortis for charitable uses and, if there is any vagueness or uncertainty in their executions the Courts will not uphold them. Gifts of this nature depend, however, not upon an equitable, but a legal title, and the claim of the donee is not essentially an equitable right.]

523

(524)

INDEX TO THE NOTES.

[The paging refers
to the [] pages.]

ACCOUNT,
For waste, how far incident to an injunction, ACQUIESCENCE, 64. 9:5, 94. 211, 214, 484, 693.
See
870.

See

WASTE.

Application of Purchase-Money Catching Bargains structive 'Prists Fraud ox Marital Rights Trustee.

Con-

ADMINISTRATOR.
No implied power

See

Executor

Application of Purchase-Money, 2
estate for

in, to sell real

payment of

debts, 104

ADVANCEMENT.
Presumption
254
of,

arises

on a purchase by a parent,

in the

name

of a child,

Or by a person in loco parentis, 255 Or by a husband in the name of his wife, ib. Or of himself and his wife, 256 Or of himself, wife and child, ib. Or in the names of himself, his wife and a stranger or strangers, ib. Though strangers be trustees of his marriage settlement, ib. Result of an advancement on purchase by husband in the names of himself and wife, ib. In the names of the husband, wife, and a stranger, ib. Presumption of, does not arise on a purchase in the name of a woman
cohabitating with purchaser, ib. it arises on a purchase by a married woman out of her separate estate in the name of a child, ib. By a widow, 256, 257, 258 Not in the case of a step-mother, 258 On contract to purchase land in the name of a wife or child, ib. of husband and wife, ib. Presumption of, arises in the case of personal as well as of real property, 259 Stock purchased by person in the name of wife or child, ib. Of married daughter and her husband, ib. Deposit receipt at bank in the names of husband and wife, ib. Or bond taken in the names of grandtather and infant grandchildren, ib. Policy of insurance on life of son, ib. Presumption on advance by settlor to trusteesof his settlement to complete a purchase, ib. Admission of evidence to rebut or in support of presumption of advance-

Whether

ment, 259

The infancy of a

child is not a circumstance of evidence which rebuts the presumption of advancement, 260 Nor the circumstance that the property is reversionary, ib. Nor that it is a purchase in the joint names of father and son, ib.

Nor of husband and

wife, 261 Interest taken by parties on purchase by parent in joint names of himself and child, ib. Of himself and wife, ib. Or on joint purchase in names of husband, wife, and stranger, ib.

(525)

1090

INDEX.
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to the [*] pages.]

ADVANCEMENT continued.
On
a grant of copyholds in the

name
is

of father and sons successive,

fully advanced, ib.

ib.

Senible, son not trustee,

though he

Clearly not, if advanced but in part, ib. Child having a reversionary estate only, not considered as advanced, 262 Father's entering into possession, and taking rents and profits, or giving receipts in son's name, it' an infant, does not rebut in presumption, ib. Such acts said by some to be referrible to acts of guardianship, ib. By Lord Nottingham, to presumptive advancement, ib. And will not rebut presumption, even where son is adult if son isadvanced

but in part,

ib. if

he is fully advanced, 263 be rebutted by evidence of facts showing father's tention that son should be a trustee, ib. But they must be antecedent to, or contemporaneous with, the purchase, Subsequent facts no admissible as evidence of intention, ib.

But they may,

Presumption

may

in. ib.

As a

devise, ib.
ib.

Mortgage,

Demise of copyholds, ib. Unless where the licence to lease is obtained, or a surrender to the use of the will is made, at the same Court, as the grant, 263, 264 Presumption rebutted by formal possession being at once taken by the
father, 264

By

giving notice to tenant supported by other evidence,

ib.

Presumption may be rebutted by parol declaration of father, made contemporaneously with the purchase, ib. Semble, evidence as to contemporaneous intention of husband admissible

some years

after, ib.

fortiori

evidence

may be

given of father's intention to advance son, 265

Stibsequent acts

and declarations of the father may be used by the son

against him, ib. semble, those of the son may be used against him by the father, ib. Evidence not admissible to rebut advancement by showing purchase to be made in fraud of the law, 266 Secus where there is no fraudulent intention, ib. On conveyance to son for qualification for voting, 266 Resulting trust, on proof that conveyance was made to another under a misapprehension that grantor was liable for bigamy, ib. Presumption ot advancement of wile rebutted, 267 And surrounding circumstances taken into consideration, ib. Proceeds of stock invested by husband in the names of himself and his wife

And

his property, ib.

Purchase when void against creditors, ib. Presumption of, does not arise when son acts as solicitor of parent, 268 Court may repudiate shares transferred by a father to his infant son, ib. See Resulting Trust. Father not a contributory when company have refused to allow him to execute deed for son, ib.

AGENT,
Cannot renew lease
for his

own

benefit, 61

Trustee cannot purchase trust estate for another as, 177 Agent employed by trustee to sell, cannot purchase the trust estate, ib Employed to sell, cannot purchase from his principal, 189 Unless he furnish him with all the knowledge he himself possessed, ib A fortiori, will purchase be bad, made in another's name, ib Nor is it necessary to prove that the purchase was at an undervalue, ib. What disclosure must be made by the agent to render the sale valid, 189. 190

526

INDEX.
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to the f*l pages.]

1091

AG ENT
Onus
Agent
ih.

continued.

of proving disclosure, 190

for sale

may

repurchase property sold after termination of the agency,

But repurchase suspicious, ib. Cannot repurchase whin contract executory, ih. Law the same as to auctioneer employed to sell, ih. Purchase by agent employed in managing an estate, -when "When set aside, ib.

valid, 191

Lease to agent or steward, when sustained, ib. Agent employed to purchase cannot purchase for his own benefit, ib. Except as to lands in purchase not included in agency, ib. Nor will an agent, employed to purchase, be permitted to profit by a sale
to his principal, ib.

Except by his express consent,

ib.

procure sub-contractor for work, not allowed to profit by arrangement with sub-contractor, 19*2 Employed lo take lease, not allowed to take it for his own benefit, ib. Or to settle a debt, cannot purchase it for himself, 193 Not allowed to profit by surreptitious dealings with another principal, ib. Stockbroker employed as, to purchase, cannot sell his own stock to employer when, 194 Remedy in such cases, 194, 19"> Case of partner employed by firm to purchase, selling his own goods, 195 Co-owner acting as ship's husband, 195. Agent of colliery, ib.
to

Employed

See

Cargoes

Constructive Trusts Trustee.

is.

AGREEMENT.
Frauds

See Part Performance of Agreement Statute Voluntary Deeds and Contrac

oe

ALIENATION,
Restraint upon, of married

women,

005.

See

Separate Use.

APPLICATION OF PURCHASE-MONEY,
1.

Modification of doctrine by various statutes, 78, 79 Purchasers of real estate not bound to see to, when trustees have power to give receipts in express terms, 80 Or by implication, ib. Purchaser is bound to see to the application of purchase-money <>f real estates, directed to be sold when debts, legacies, or annuities are specified,
ib.

Or when proceeds are

ib.

to be divided

among

certain adult cestui

que

trusts.

Purchaser in some cases not liable to see to. where trusts for sale are immediate and the cestui que trusts are not ascertainable, 81 Or not of age when, 81, 82 Secus, if estate is charged with sum payable on infant attaining majority, B2 Purchaser not bound to see to, where purchase-money is to be applied upon
1
,

trusts requiring care

and discretion,

ib.

Power

to give receipts
ib.

Not by mere reference

give receipts,
generally,
ib.

implied from power to invest, 83 to power of sale and exchange containing power to
to,

Purchaser not bound to see

where there

is

a trust for

payment of debts

Or a general charge of debts simply, ib. Or of a particular debt also, ib. Or although there be also a trust or charge
or annuities, 84,
8.3

for

payment

also of legacies

527

1092

INDEX.
[The paging refers
to the [*] pages.]

APPLICATION OF PURCHASE-MONEYcontinued.
Purchaser not
liable, even after payment of debts, according to Johnson v. Kennett, and Forbes v. Peacock, 85, 86 Remarks of St. Leonards on those cases, 86, 87, 88 Liability of estates by statute to debts, does not absolve purchaser from seeing to payment of legacies charged thereon, 88 Purchaser not bound to see to, where charge for payment of debts is followed by specific disposition of real estate, 88, 89

Nor a mortgagee, 89 Nor to see how much land is necessary to be sold for payment ot debts, 90 Nor, where the trust is for payment of such debts as the personalty is deficient in paying, to see whether land is wanted, ib. Secus where there is a mere power to raise money on a deficiency of the per-

sonalty, ib.

Purchaser with notice of judgments against trustee for sale, with power to give receipts, whether bound to see to, 90 Purchaser though debts charged generally liable, when he is a party to a breach of trust, 91 As when trustee with notice to purchaser is selling to pay his own debt, ib. Or when he has notice that all debts have been paid, ib. Burthen of proof of notice lies on creditor of testator, ib. No presumption from absence of statement for what money is to be used, ib. Or against executor and devisee of property charged with debts mortgaging the same with his own private property, 92. Mortgagee's security, how invalidated when trustees raise money by an unauthorised mortgage instead of selling under a power, 92, 93
Especially after considerable lapse after testator's death, ib. lapse of time raises presumption of payment of debts, 94 To what extent mortgagee entitled to stand as creditor on proceeds of es-

What

tate, ib.

Purchaser with notice of an administration suit having been instituted,

How

be satisfied with their receipts, 94, 95 Payment of money into court under the Settled Estates Act and Trustee
Relief Acts, 95

liable to see to, ib far trustee not having sale compel rjiirchasers to

power

to give receipts, can

by conditions of

Whether general charge

of debts authorises executors to

sell,

95

Semble, they can if trustees of the real estate for special purposes join in conveyance, 95, 96 Or executor alone, where he is trustee of the real estate for other persons,
96

Semble, though executors can sell and give receipts, legal owner must concur in conveyance, 97, 98, 99, 100, 101 Course when party having legal estate is under disability, 101

Or

refuses to concur, ib.

According to conveyancers estate charged with debts can be sold by devisee

alone, ib.

Whether devise be

to them beneficially, ib. Or for special purposes, ib. Remarks of Lord St. Leonards on authorities,

ib.

Devisee of estate charged with debts being also executor, can make valid title, 101, 102 And purchaser or mortgagee therefore not bound to see to, 102 Trustees under express trust for sale, can sell without executors, when, ib.
Alterations in law by Lord St. Leonards' Act (22 &23 Vict. c. 35), 102, 103, 104 No implied power in administrators to sell real estate for payment of debts, 104

Even when with

will annexed, ib.

528

INDKX.
TTho paplnK refers
to the [] pafjes.]

109:5

APPLICATION OF PURCHASE-MONEYcontinued.
Effect of Lord St. Leonards' Act, 104 Concurrence of tenants for life insale by trustees to sell not necessary under

Land
As

Act, L882,

ib.

Order of Court
the Settled

for sale sufficient if

it).

concurrence necessary,

ib.

to consents of tenants for life within the

meaning of

sects.

56 and

(il!

of

Land Act of 3882,

to powers to be exercised with consent of Court only under Settled Land Act, 1884, il>. Real estate in the bads of an alienee of the devisee or heir-at-law. how far liable for debts, 104, lOo Purchaser or mortgagee of leaseholds or other personalty from executors, or administrators, not liable to see to, 106 Sale or mortgage good against residuary, pecuniary, and specific legatees and creditors, ib. Notwithstanding notice to the purchaser or mortgagee of the will or be-

As

quest,

ib.

Or that money was originally advanced to executors on

curity, 107.

their personal se-

Executor or administrator mortgaging leaseholds

ib.

may

give power of sale,

And to give receipts, ib. May mortgage to secure municipal

Donee of express power
107, 108

rates, ib.

to
to

mortgage can give power of sale

to

mortgagee,

Powers of sale incident

mortgagees under Lord Cranworth's Act, 108

to be

Under the Law of Property Act, ib. Power not imported by Court into absolute conveyance, held
security, ib.

only a

Power authorized by Court on mortgage of an infant's estate, ib. Executor may give mortgagee of debts power of attorney to collect ihem,

ib.

Concurrence of specific legatee in sale of chattels desirable, ib. Unless be be executor, ib. Purchaser from devisee to whom property has been conveyed by persons entitled to sell under general charge of debts, not bound to see to, ib Executor can give a lien on specific assets, ib. Cannot enable person lending money to him, to prove in competition with creditors of the testator, ib. Purchaser bound to see to, where personal estate clothed with particular
trust, ib.

Purchaser or mortgagee liable in cases of fraud, 109, 110 As where executor mortgages or sells, to pay or secure his own debt, ib. But semble fraud is not presumed in such case where the executor is residuary legatee, 110, 111

Or is specific legatee of the chattel assigned, 1 Secus, if purchaser had notice of testator's debts being unpaid, ib. Purchaser bound to see to, where executor has sold at an undervalue, ib. Or sold or mortgaged to one who knew that there were no debts, or that all debts were paid. 111 Creditors and legatees barred from proceeding against purchaser, by length of time and acquiescence, 112 Legatees barred although their legacies are contingent, ib. Pecuniary or residuary legatee can follow assets as well as creditors and
1

specific legatees, ib.

Executor's receipt for sum paid to third party valid, ib. Unless with notice of payment being wrong, ib. Banker not bound to see to application of money paid to executor on his cheque, ib.
* 34

WHITE ON EQUITY.

529

1094

INDEX.
[The paging refers to the
[*]

pages. ]

APPLICATION OF PURCHASE-MONEYcontinued.
Unless he had notice of an intended fraud by which he derived a
112, 113.
profit,

See Charge of APPOINTMENTS,

Defective,

Debts.
See

Fraud upon a Power Illusory Appointment. ARBITRATION,

when

aided, 443.

Defective Execution of a Power

Specific performance of covenant to refer to, not decreed, 944 Staying proceedings in suit after agreement to refer to, 944, 947 See Specific Performance.

ABRITRATOR,
Cannot buy up the claim of parties to the reference, 203

To

sell at price fixed by,

when

decreed, 947, 948

ARTICLES BEFORE MARRIAGE,

Executory trusts under, how construed, 21 See Executed and Executory Trusts.

ASSIGNEES (NOW TRUSTEES) IN BANKRUPTCY,

Cannot purchase bankrupt's property, 197

Nor can assignee's partner, 198 Or creditor consulted by him, ib.

Semble,"not even with the consent of the majority of the creditors, ib. But purchase may be confirmed by Court if beneficial, ib. Assignee removed in order to bid, ib. When order to bid refused, allowed to name price, ib. Cannot purchase up the debts of the bankrupt for their own benefit, ib. See Commissioners of Bankruptcy Solicitor.

ATTORNEY. See AUCTIONEER,

Employed

Solicitor.

to sell

cannot buy property, 190

is

Until after agency

terminated,
ib.

ib.

Repurchase suspicious,

AWARD.
Specific performance of agreement to 950. See Specific Performance.

submit

to,

when

decreed, 948, 949,

BANKRUPT.
BARRISTER,

See

Conversion.
it for

Consulted as to the compromise of a debt, not allowed to purchase his own benefit, 203

BISHOP,

When

the consent of, necessary to raise money by annuity for building a rectory, he cannot himself take a grant of the annuity, 204

CARGOES.
Bills filed to

prevent improper dealings with, by agents, 965.

CATCHING BARGAINS,
With
c.

32 Vict, heirs, reversioners, or expectants (not coming within 31 mere inadequacy of price, 675, 676 Though mere inadequacy of price is not sufficient to set aside sale of in4) set aside for

&

terest in possession, 676 Unless there be fraud, surprise, or misrepresentation, ib. Or the inadequacy of price is so great as to be evidence of fraud,

ib.

530

INDEX.
[The
i>;iKiTi

1095
]

refers I" the [*] pageH.

CATCHING BARGAINScontinui d.
Inadequacy of price ground cies, when, 677
for

rescinding contract

respecting expectan-

Or reversionary

interests, ib.

What

persons conic within class of expectants, il>. Transaction brought into Court with expectants most frequently loans, ib.

Sales, Lb.

Mortgages,

ib.

Post obit bond .sot, aside where unreasonable, ib. Also where price was inadequate, ib. Rule applicable where expectancy was a remainder after deathofafather,ib

Or any

oilier relation, ib.

ib.

Security for payment of sum on death of fat her set aside, on terms, Unless transaction reasonable and price adequate, ib. Whether .security were by mortgage, ib.

Annuity,

ib.

Bond

or'otherwise, ib. Immaterial that expectant heir is of mature age. G78 Or that he understood transaction, ib. Not necessary to show that he was in pecuniary distress, ib. Same principles applicable to grant, of reversionary lease, ib. Reversioner need not combine the character of heir, ib. Onus on person dealing with a reversioner or expectant, of proving that the transaction was reasonable, 678, 679. The price adequate, 678, 679 Inquiry as to value directed, when. 679 Rule as to sales of reversion is applicable, though a small part of the property sold is in possession, ib. Especially if thrown in colourably, ib. Reversionary interests depending on marriage and birth of issue, capable
of valuation, ib.

Contingency, if remote, will the value of the reversion, Mere fact that a contingency Relief against sub-purchaser Exemption from rule, when

not be taken into consideration in estimating

ib.

cannot he valued by actuaries immaterial, ib. with notice, 680 vendor has stated in his proposals the value

oi the property, ib. Relief will be given, especially in the case of a young heir, against usurious loans under the mask of trading, ib. But, quaere, according to Lord Brougham, when the transaction is known to the father or person from whence the spes successions is entertained. 680. 681 Or if the situation of the other party or his property is altered, ib. Judgment of Lord Brougham on these points in King v. Samlet, ib. Remarks of Lord St. Leonards thereon, 681, 682 Lord Brougham's judgment disapproved of in subsequent cases, ib. Purchase by tenant lor life from remainderman set aside for inadequacy of

price, ih.

What

dealings with reversionary interests are unimpeachable,

for life,

ih.

Family arrangements, ih. Dealings between a father, tenant

estate, ih.

and son tenant

in tail, to resettle

In the absence of misrepresentation or suppression, ib. Though no independent professional adviser be employed, <>>:; And though some parental influence may have been exerted, ib.

Unless

it

were undue,

ih.

consideration not viewed by court scrupulously, ih. Unless in case of a family settlement, transaction with regard to reversion

And

falls

within ordinary rule,

ih.

531

1096

INDEX.
[The paging refers to the
[]

pages.]

CATCHING BARGAINScontinued.
Rule not applicable to a settlement by heir on his -wife and children, ib. So a sale of a reversionary interest by auction is in general unimpeachable,
ib

Unless
Sale,

it be conducted improperly, as where sale is without reserve, ib. though not by auction, may be supported where vendor and purchaser

concur in ascertaining value from skilled persons,

ib.

Or when resold for the highest bid at a previous auction, ib. Or when the price given was same as estate had been offered to and declined by others, ib. Secus, where opinion of actuary unacquainted with local circumstances
only is obtained, 684. Purchase by private contract set aside, though assigned by same deed with lot purchased at auction, ib. Rule as to sale of reversions not applicable to a sale by a reversioner and a person having the prior interest, 684 Except in cases of purchase by attorney from a client, ib.

Or undue parental influence, ib. Rule not applicable where vendor has substantially an
ib.

estate in possession,

Nor to a contract between a tenant and a person entitled to the reversion and to the rents during the term, ib. Nor where sale of a life interest was subject to rent-charges absorbing
nearly the whole income, ib. set aside where transaction reasonable, 685 Fair agreement between expectants or heirs to divide property enforced, ib. No rule in our law as to what constitutes inadequacy of price, ib. Rule by the civil law, ib. Sales of reversions set aside, for small difference between value given and

Not

assumed,

ib.

Difficulty to purchase reversionary interest with safety, ib. Except under a sale by auction, ib. Reversionary intrest valued by the market price, not by the tables, 685,

686 Calculated with reference to the time of the contract, not the result, 686 Circumstance that property was subject to a chancery suit taken into consideration, ib. costs of selling real estate, ib. as to, not altered by repeal of the usury laws, ib. Unreasonable bargain not thereby rendered reasonable, ib. Sales of Reversions Act, effect of, 687 Bona fide sale of reversion put on same footing as a sale of an interest in possession, ib. Not set aside for mere inadequacy of price, ib. Unless so gross as to raise a presumption of fraud, ib. Onus probandi not altered where advantage taken of weakness, ib. Leaves law as to unconscionable bargains unchanged, 688 Not necessary to set aside transaction that expectant or reversionary in-

And Law

terests should be dealt with, 689 Sufficient if credit of expectations was trusts, ib. Or where it arises from the position of the father, ib. Material that the lenders trusted to borrower's reversion, 690

Or expectations,

ib.

Since the abolition of usury laws hard bargains may be made with persons in possession, ib. Or entitled to no property at all, ib. Semble, interest of a tenant for life, in an annuity payable as a jointure is reversionary, ib.

532

INDEX.
[The pafjinK refers
to the [] pages.]

1097

CATCHING BARGAINScontinued.
Decision contra of Lord <'llmsf<>rd in Tyler v. Yalca, 11 L. R. Eq. 276 disapproval of, (591 Accounts of advances on post obits not treated as settled accounts, Lb. Nor accounts of mortgages on reversionary interests, il>. Transferees of impeachable securities bound by notice, 691 Bona fide purchase of reversion not set aside though price from a latent detect or accident turn out to he inadequate, 092. Terms upon winch a transaction with an expectant heir or reversioner
will he set asi.le. 692, HI):; Confirmation and acquiescence, effect of, 693, 694 Confirmation aud ratification under Infant's Belief Act void, when,

(>'.)'>

CHARGE OF DEBTS,
far it authorizes sale of real estate by executors, 9f>, 96, 97, 98, 99, 100, 101, 102 Or devisees, 102, 103. See APPLICATION OF Purchase-Money. Real estate not charged with debts aliened by heir or devisee not liable in the hands of a purchaser. 104 Heir or devisee personally liable for debt, ib.

How

Conveyance to new trustees not an alienation, 105 Equitable mortgage an alienation pro tanto,ib. Even by deposit of title-deeds, ib. Purchaser from heir or devisee not bound to see to payment of debts of
ancestor,
ib.

Or

testator, ib.

Alienee who has not paid purchase-money restrained from selling, ib. Concurrence of executors where tbere is a charge of debts, when requisite, ib.

CHATTELS.

See

DeedsSpecific Performance

of Agreement.

to settle upon same trusts as real estates in strict settlement, how executed, 25, 26, 27, 28 Given by will with reference to the limitations of real estate in strict settleSet Executed and Executory Trusts. ment,* 37 43. Sale of, by tenant for life of land, when settled as heir-looms to go with,

Agreement or covenant

when,

4:!.

Specific delivery up,

See Heir-looms. when of peculiar value, 963

Heir-looms,

ib.

Where adequate remedy at law, equity would not interfere, 9.64 Where there is a fiduciary relation between the parties, it is not
that chattels should be of
Bills may be tiled trustees, or bankers

necessary

any peculiar value, ib. by owners of, to prevent improper dealings of agent--,
with chattels of
all descriptions,

965

Stock, ib. Cargoes, ib.

Specific performances of contract for purchase of, ib. Deeds or writings, decree for a specific delivery of, ib. Bill for delivery of certificate of registry of ship 966 Not necessary in equity in suit tor deeds to prove conversion, ib. Or resistance to deliver them up, ib. Jurisdiction of courts of common law to compel return of chattels, under

Common Law Procedure Act, 866 Procedure under the Rules of the Supreme Court. 1HS3, HI0 Measure of damages for non-delivery of chattel according to contract, 861 See Cargoes Executed ash Executory Trusts.

COMMISSIONER IN BANKRUPTCY,
Cannot purchase property of the bankrupt, 199

533

1098

INDEX.
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[*]

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COMMISSIONERS UNDER ENCLOSURE ACTS,

Incapacity for purchasing, what, 207

COMPENSATION,
Persons dissappointed by election, entitled
to, 406, 407,

408. See

ELECTION.

CONFIRMATION,

213, 214, 484, 693.

See

Catching Bargains Fraud on

Marital RightsTrustee.

CONSIDERATION,
Inadequacy

of, not sufficient reason for setting aside a sale of interests possession where there is no fiduciary intention between the parties, 676 Except in the ease of reversionary interests, when, ib. See Catching Bargains Trustees.

CONSTRUCTIVE TRUSTS,
On renewal
Though
of a lease,
lessor refuse to

by a trustee or executor, 54 renew to cestui que trusts,

ib.

On renewal by administrator of tenant from year to year, ib. On renewal by executor de son tort, 55 On renewal by a husband of lease made to the separate use of his

..."
wife, ib.

Lease to trustee of a charity, ib. On a renewal by persons having limited interests as tenants for life, ib. Although original lease may have expired, 56 Though on expiration of the lease testator held merely as a tenant from
vear to year,
Secus,
ib.

where testator was merely tenant at will or at sufferance, ib. Executor in such case would renew for benefit of residuary legatee, ib. Executor entitled to benefit of renewal where testator was not entitled to premises bequeathed to parties in succession, ib. And tenant for life is trustee of renewed lease <though. author of settlement, 57

Or there

is a special provision that a particular renewal shall enure for benefit of trust, ib. Attach to money paid to tenant for life for withdrawing opposition to a bill,

ib.

On renewal although tenant for life has general power of appointment, ib. On tenant for life obtaining a fee under an Act of Parliament, intended
for himself and those in remainder, ib. Or trustee obtaining the fee under an Act on the representation that he was absolutely entitled, 58

On a right of fishery from the Crown, ib. On renewal by one of several persons jointly interested, for the others, On tenant for life and remainderman renewing as joint tenants, ib. On a person jointly interested with an infant renewing, ib.
ib.

ib.

Or one partner of a firm renewing, when, 58, 59 Semble, not if business connected with house be of a speculative character,
other partner lies by, ib. Unless he has been kept in ignorance by partner renewing lease, 60 And on renewal by a mortgagee for the mortgagor, ib. Though lease expire before renewal, ib. Unless lease be obtained bona fide with notice to all interested, ib. Renewed lease by mortgagor for benefit of mortgagee, ib. And on renewal 'by the lessee for the mortgagee, legatees, annuitants, and incumbrancers, 60, 61 Rule not evaded by fraudulent forfeiture before renewal, 61 Money arising from the sale of right of renewal affected by the same trusts as leaseholds if renewed, ib. Agent cannot renew for his own benefit, ib.

And

534

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1099
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CONSTRUCTIVE TRtJSTScontinued.
Rule Laid down in Keech v. Sandford, strictly followed, ib. Does not apply to additional lands, 62 Terms upon winch an assignment by the trustee or tenant for
directed, 62, 63
life

will be

Contribution towards payment of fines on renewals,

<;:;

Annuitants whether bound to contribute, ib. Remedies against volunteers claiming benefit of renewed lease, ib. Or purchasers with notice, ib. Even though fine be levied, 04 Or release obtained from cestui que trust, when, ib. Cestui que trust bound by acquiescence and lapse of time, when, ib. Continued claim by cestui que trust immaterial, when, ib. Statute of Limitations runs against tenant tor life renewing for himself, ib. Tenant for life entitled to sum accumulated for renewal if no predominant trust for renewal, when, ib. Trustees with mere power to renew could not purchase reversion under Episcopal and Capitular Estates Acts to the prejudice of tenant for life.
65

Tenant

for life, if

holds, or of their proceeds, if reversioners

Or when
07

leaseholds taken by a

renewal impracticable, only entitled to income of leasewere intended to succeed, ib. company under compulsory powers, 65, 00,

trust for renewal overrides interest of tenant for life, on renewal becoming impracticable, he cannot object to best terms obtainable. 67 And it becomes the duty of trustees to purchase reversion from Ecclesiastical Commissioners, 67 Equitable assignee of tenant for life of renewable leaseholds, purchasing reversion from Ecclesiastical Commissioners, is trustee for parties interested, 68 Case of Hardman v. Johnson, 3 Mer. 347, whether distinguishable from In re Lord Banelagh's Will, 26 Ch. I). 590, 68, 69 Purchase of equity of redemption by executor of mortgagee, 69. 70 Quasi tenant in tail of leaseholds may renew for his own benefit, 70 Old tenant has no equity against a stranger obtaining a lease, ib. Nor has a lessee against his sub-lessee, ib. Rights of sub-lessee with covenant to renew at fixed rent against lessee renewing, ib. Or purchasing the reversion, 71 Against lessee obtaining renewal fraudulently omitting provisions in the

Where

old lease, ib. Liability of trustee for his own benefit rendering renewal impracticable to give effect to charges ib. On purchase of trust property by trustee, 174, 175, 176 See Trustee.

CONTI NG ENT REMAINDERS,

when inserted in the case of executory trusts, 33, 34 Utility of trustees to preserve, 852, 853, 854
Limitations to preserve,
See

Waste.

CONTRACT. See Agreement. CONTRIBUTION. See Sureties.

Towards payment of tines on renewals, 63 Whether annuitant bound to contribute, ib. Between sureties, 120

CONVERSION,
Doctrine of constructive, as stated by Sir Thomas
Sewell,

975

535

1100

INDEX.
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]

CONVERSIONcontinued.
1.

Of money

into land,

or directed to be laid out in lands is real assets, 976 Subject to tenancy by the curtesy, ib. And semble to dower, since the Dower Act, not previously, 977 Passes under a general devise of lands, ib. Or of lands in a particular county or elsewhere, ib. In equity even in the case of a will made before the Wills Act (1 Vict.
26), ib.

Money agreed

c.

the execution of the will, ib. directed to be laid out in land will not pass as money by a general bequest, ib. But it may by a particular description, 977 Would not have passed by the will of an infant, even previous to Wills Act, 978 Descends to the heir, ib. Heir claiming money from strangers will be preferred to personal representatives of his ancestor, ib. If from personal representatives of ancestor, his claim will be superior to theirs if there be no prior outstanding interest in another, ib. Case of widow claiming a legal jointure, 979 If there be no outstanding interest and money is at home, heir has no equity against representatives of his ancestor, 979, 980, 981 Does not as between real and personal representative depend upon actual state of property, 981

And though purchase was not made until after will, ib. And will pass at law since Wills Act, lands purchased after
Money

Remarks upon Walker

v.

Denne,

ib.

Money

notionally converted into land not liable to succession duty, 981,

982 Liable to legacy duty, 982 Money to be laid out in land will not escheat to the Crown on failure of
heirs, ib.

see now the Intestate Estates Act, 1884, ib. Money impressed with character of realty not formerly

But

forfeited to

Crown
be laid

on conviction of owner

for felony, ib.

now abolished, ib. Money to be laid out in land to go along with settled out in erecting new buildings, ib.
Forfeiture tor treason or felony

property,

may

Rebuilding a house pulled down, ib. Semble, not ordinarily in repairs or improvements not placing new buildings on land, 983 Save in such repairs or expenditure as are essential to preservation of
trust estates, ib.

Addition to a house considered a new building, ib. Money when laid out in improvements, ib. Semble, should not be laid out in repairs save in cases amounting to absolute salvage, ib.

Doubtful whether laying out money in re-erecting old buildings

is

the

2.

ones, ib. When money in Court arising from sale of glebe laud has been allowed to be expended in building parsonages, ib. Sometimes refused, ib. Various modes under which capital trust money mav be invested under the Settled Land Act, 1882, 984 And improvements made with capital trust money, ib. Land agreed or directed to be sold, considered as money. Will not pass under a devise of land, ib.

same

as erecting

new

53G

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1101
pages. ]

CONVERSIONcontinued.
Passes by
;i

residuary bequest,

ib.

And oa
Even

intestacy, goes to personal representatives, Hi. where conversion i.s not to take place until alter death,

ib.

Personal representative may maintain bill for specific performance of contract to sell land against vendor, ib. In the case Oi contracts with railway and other companies, what will amount to, 98 Not a mere notice to owner in fee sui juris to treat, ib. Though landowner state price he will accept, ib. If he die before offer accepted, ib. Nor where contract with landowner fixes price per acre, if quantity to be taken be not mentioned, 985 Notice, if not acted upon within reasonable time, deemed to be abandoned, ib. If price be fixed after notice by Company, conversion takes place, ib. Whether price be ascertained by arbitration, ib. By valuation of surveyors, ib. Or by verdict of .jury, 985. Executors of owner in fee, who had agreed to sell to railway, entitled to
I

purchase-money,

ib.

And to compensation for severance, ib. And not devisee of owner, ib. Company bound to pay costs of infant devisee, ib. And a vesting order may be made on infant devisee, On death of donee of power, who had agreed to sell

ib.

land to a Company, defect of execution supplied, ib. Personal representative of donee entitled to purchase-money, ib. Formerly real representatives of purchaser of real estate entitled to have purchase-money paid out of personal estate, 986. They must show a binding contract, ib. Real representative entitled to purchase-money, unaffected by anything

taking place subsequently,

ib.

As by contract ceasing to be binding on purchaser's Or by vendor felling ornamental timber, ib.

representatives,

ib.

By

his rescinding contract on

ground of delay,

ib.

As under power reserved in contract, ib. Takes place when heir at law of vendor adopts
land, ib. Secus, if he repudiated the contract, ib.

parol

contract

to sell

Or

if he acted by mistake, Heir at law held entitled

ib.

to

have buildings finished by personal

estate,

when,
Devisee,

ib.

by Locke King's Act, lost right of compelling payment of purchase-money by personal representatives of the purchaser, ib. And the heir at law, by 40 ec 41 Vict. c. 34, !<*7 Share of proceeds to arise from sale of lauds, not within Locke King's
Act. ib.

Personal representatives of vendor

or heir,
ib.

may now convey

instead of his devisee

Does not take place on contract by trustee

to purchase trust property, ib. Alien previous to Naturalization Act, 1870, could not hold land againsl the

Crown, ib. But he might take money arising from land devised to be sold, ib. Secus, when there was no trust Cor absolute conversion, ib. May now hold land under the Naturalization Act. 1870, 98fl The Court would execute a trust of lands for an alien (created prior
the Naturalization Act) in favour of the Crown, ib. Result of felon becoming entitled to money arising from conversion,
ib.

to

537

1102

INDEX.
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CONVERSIONcontinued.
to a .charity of money arising from the sale of land void within the Mortmain Act, ib. conversion Though be directed by a former instrument, ib. Doctrine of, held not to give jurisdiction to Probate Court over a will limited to real property, ib. But see contra In re the Goods of Jordan, 1 L. R. P. & D. 555, 989. Settlement of land on trust for absolute conversion, not subject to ad valorem duty, as a definite sum, ib.

Bequest

:>.

Must
If

be imperative.

be optional, as to invest in purchase of land, or on secureties, conversion will not take place, 989 Except where trustees have actually exercised their discretion.ib. Court will not control it when clearly used, ib. Destination of property may depend on the exercise of the option, if intention of testator is clear, 989, 990 Property if unsold may go to heir at law, 990 If sold to residuary legatees, ib. Vesting may also be made to depend upon time when option is exercised, ib. A mere power to trustee to sell real estate given with the residuary personalty will not convert real estate, ib. Though it be declared that residuary estate is for purposes of transmission to be impressed with quality of personal estate, ib. Nor where trustees have mere power, with consent of person in possession of settled estates, to lay out money in purchase ot land to be settled to
it

the same uses, ib. be optional where trustees are directed to lay out personalty, either in the purchase of land of inheritance or at interest, ib. In freeholds, leaseholds, or copyholds, ib. In land or some other secureties, ib. Conversion not prevented by a mere temporary provision for investment until purchaser could be found, 991 Secus, where in a particular event a permanent investment was intended, ib. Trust to sell within a particular time directory, ib. And conversion will take place though no sale made within the time men-

May

tioned, ib.

And

it takes place when sale is directed as soon as trustees see necessary for the benefit of the cestui que trusts, ib.

In favour of a particular legatee not prevented by a devise of the property in an alternative event in its unconverted state, 992 Trust for conversion in both alternatives not prevented because less necessary in one than the other, ib. But although conversion is apparently optional, it may be considered imperative where limitations are adapted only to real estates, 992 Or where the words of request are merely inserted for the purpose of enforcing the obligation to convert, ib. Secus, where words of request are inserted for purpose of making purchase discretionary, 993 But person must not delay request for his own benefit, ib. Where the power to convert for the benefit of a class is discretidnary, the respective estates must be taken as they are found, ib, Secus, where the power is imperative, and in the nature of a trust, ib. Of land into money may be implied, 994 But intention must be clear, ib. Double conversion leaves property unchanged, ib. As where land is directed to be sold and proceeds invested in land, ib. Money arising from the sale of a part of such land will not pass, under a devise ot part of land, if part be left unsold, 994

538

INDEX.
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1103

CONVERSION continued.
Where

direction to con verl is imperative, legacy duty is payable, lb. Even though person entitled elects to take the land, ib Secus. where direction is discretionary, and trustees do not Bell, 995

Bui it may it trustees do sell, il>. Doubtful whether liability to duty should depend upon acl of trustees, ib. But it will not if sale takes place not under the power, but under jurisdiction of the Court, il>. Nor will legacy duiy attach where powers are given to trustees for variation of secureties
ib.

payment of debts, legacies or other prior charges, ib. Nor where trustees are directed to invest proceeds in the purchase of or on mortgage of other lands, ib.
For raisin- money
for

fortiori, if

they are directed simply to re-invest in the purchase of

lands,

il).

Laid down by Mr. Hanson that probate duty not payable in respect ot land absolutelv directed by will to be converted, 995, 996 The same result held by Lord Longdate, M. R., to follow where the direction to convert is by deed, when, 996 Administration not granted in respect of proceeds of real property sold under Settled Estates Act, and not yet converted into realty, ib. Decided that money resulting to an heir at law on partial failure of trust
to convert is liable to probate and legacy duty, ib. Probate duty payable on part of purchase money not received by testator, who had contracted to sell land, ib. Freehold property directed by former instrument to be converted, if it pass by will is liable to probate duty, 997 And legacy duty, ib. Semble, result the same if conversion directed by will alone, ib. Observations of Sir J. Hannen on the necessity of probate in the case of, ib. Legacy and probate duty payable on real property purchased and used for partnership purposes, when, 997 Since Succession Duty Act, question as to legacy duty not of so much im-

portance,
1.

ib.
ib.

As

to

period from which conversion takesplace,

In the case or a deed from its delivery, ib. In the ease of a will from the death of the testator, ib. Though sale be directed whenever it should appear advantageous, ib. Unless directed to take place at another time, 998 Who entitled to rents until sale. ib. Tenant for life without impeachment nol entitled to double waste when lands are directed to be sold, and proceeds to be invested in lands, ib. .May be made to depend on the option ot third parties, ib. As power of sale in a mortgage directing surplus moneys to be paid to the mortgagor, his executors, administrators, or assigns, ib. Surplus On a sale in the lifetime of the mortgagor will be his personal property, ib. If after Lis death his heir or devisee will be entitled, ib. Unless when sale takes place under a trust forsaleon default, under -which surplus is to go to the personal representatives of the mortgagor, 999 Or even his heirs, executors, administrators, or, assigns, ib. May depend on the option to purchase at a future time, ib. Has a retrospective operation as between real and personal representatives,
ib.

Termination of a lease by a certain event will not prevent lessee exercising

option, 1000 Semble, conversion in such case as between vendor and purchaser takes place only from time when option exercised, 1000, 1001, 1002

539

1104

INDEX.
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CONVERSIONcontinued.
Rights of vendor and purchaser respectively to insurance moneys on a sale,
ib.

Until option exercised the rents and profits go to persons entitled up to that time to real estate, 1002, 1003 Semble, a specific devise by name of the property, subject to the option, may carry to the devisee the purchase-money, 1003 Whether legatee of personal estate has any remedy against a release of the option to purchase to the heir or devisee, ib. Right of person eutitled to option when land taken by Company under compulsory powers, ib. Option to purchase given to a lessee of term, his executors and administrators is attached to lease, 1003, 1004 And will pass to the personal representative of the lessee, 1004 Or to an assignee of the lease without special words, ib. Election to take property unconverted, ib. See Election.
5.

By

Court or third parties independently of contract or

wilt.

Bankrupt's real estate unsold will on his death intestate goto his heir, when, 1013 So real estate conveyed to trustees for creditors, 1013 If sold or contracted to be sold in his lifetime, it will be converted, ib. But not if sale or contract for sale take place after his death, ib. Effect oi rightful conversion, by Court or trustees, ib. Wrongful by trustees does not alter character of property, ib. Secus, if by court of competent jurisdiction, ib. Lunatic's property, not generally altered by Court so as to affect his sucUnless
cessor, 1014 it is for the benefit of the lunatic himself, ib. Lunatic's estate, for what purpose ordered to be sold, ib. Or his timber felled, 1015 If not wanted on his death considered personal assets, ib. Personal estate of lunatic when laid out on real estate, ib.

For repairs, ib. Renewals of leaseholds, ib. Admissions to copyholds, ib. In an action of trespass .relation to real Or improvements on real estate, ib.

estate, 1015

And

outlays, ib.
to

Payment of mortgages, ib. Next of kin whether entitled

estate, ib.

amount expended

in exoneration of real

Court will not lightly change one species of property into another, ib. Can only in lunacy dispose of real estate under the Lunacy Regulation Act, 1016 Either by sale, mortgage, charge, or other disposition, ib. Surplus monies to retain same character as land sold, mortgaged, or otherwise disposed of, ib. Proceeds of sale by committee directed by Court under Lunacy Regulation
Act, real estate, ib.

money payable by instalments for right to take minerals, ib. Secus, as to proceeds of sales concurred in by lunatic while of sound mind,
Also
ib.

Share of a lunatic sold in a partition action, held on his death real

ib.

estate.

Though not

carried to a real estate account, ib. Surplus proceeds of mines under the Lunacy Regulation Act, 1S53, not necessary for maintenance considered real estate, ib. Unless lunatic be only tenant tor life, fines, premiums, and sums received upon renewal of leases, are considered real estate, ib.

540

INDEX
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1105
pages.]

CONVERSIONcontinued.
If they remain unapplied for his benefit, ib. If he be tenant lor Kfeonly, they will be considered as personal estate, 1016,

1017 conversion by order in lunacy of lunatic's personal estate, surplus monies retain converted character, Shares of a lunatic bequeathed by his will adeemed by their sale, and investment by the Court, ib. Committees of a lunatic ought not to exercise statutory powers wit bout consent of the Lord Chancellor, ib. Committees cannot change properly without leave, 1017 Cannot take advantage of their own fraud, ib. Amount of repairs ami improvements on estate tail of a lunatic ordered to be raised by a mortgage, 1018 Of an estate in fee ordered to be paid out personalty, ib. Estate tail of lunatic not barred tint her than necessary, ib. Timber on lunatic's (state cut tortiously by a stranger is personalty, ib. Power of Lord Chancellor over properties of small amount of lunatics not

On

<

>

so found by inquisition, ib. Distinction between conversion of property of lunatics and infants, ib. Conversion of one species of property of an infant into another not generally allowed, 1018, 1019. Allowed in case of necessary expense, ib. Such as repairs, ib. Keeping up a house, ib. Paying purchase-money of estate devised to infant on condition of his doing so, ib. As to timber felled on real estate of an infant, 1019 Distinction between timber felled on estate tail of infant, anil on his estate in fee, ib. Personal estate of infant when applied in payment of a mortgage considered as personal estate, ib. If Court forget to make distinction to this effect order will be reformed, ib. Line of descent in descendible freeholds may be altered by renewal of lease for lives by guardian, 1020 Semble, distinction as to the conversion of property of lunatics and infants does not exist since the Wills Act, 1020 Timber felled on property of an infant equitable tenant in fee held personally, ib.

Though
Timber

subject to an executory devise over, on his dying under twenty-one

issue, ib.

without

by order of Court during life estate is realty, 1021 Until absolute owner elect to take it as personalty, ib. Secus, if order be made on the application of remainderman in fee subject
felled

to prior life interest, ib.

Surplus of real estate ordered to be sold by Court taken as personalty, 1021, 1022, 1023 Conversion takes place immediately on order for sale of intant's real estate in an administration suit, ib. Secus, in case of sale of settled estate with direction that surplus is to be

Equity

resettled, ib. for reconversion arises

by force of Partition Act, incorporating the Leases and Sales of Settled Estates Act, in the case of persous dying
ib.
ib.

under disability,

In the case of the sale of the share of an infant,

Or

lunatic, ib.

married woman dying without electing to treat the verted, ib. Or to affect her equity to a reconversion, ib.

property as con-

541

1106

INDEX.
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[*]

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!ONVERSIONcontinued.
Heir-at-law entitled to proceeds of real estate in its reconverted state as money, when, 1024 Order for sale in a partition action of a married woman's share with her consent, operates as a conversion, when, ib. And if under 200 payment will be made to her out of Court, how, ib. Money paid into Court under Lands Clauses Act remains impressed with character of realty, ib. Until owner or his real representative elects to take it as personalty, ib. As the heir-at-law of an infant tenant in fee, ib. Or lunatic, 1025 Questions of conversion may arise under Local Acts, ib. Of advowsons under the Irish Church Act, 1869, ib. When moneys paid on policy for insurance against fire, are considered personalty, and when payable to owner of realty, 1025, 1020
6.

Conversion of real estate held for partnership purposes.

Real estate purchased with partnership capital, for the purposes of partnership in trade, will b'e converted into personalty, 229, 230 So where it has been substantially involved in a business in trade, 230, 231, 232 Immaterial how it has been acquired, ib. By agreement property purchased for partnership in trade with partnership monies may be separate property of one of the partners, 232 Does not take place when real estate is purchased by partners out of their partnership capital, but not for the purposes of partnership in trade, 232, 233 Takes place when there is an agreement that the realty is to be converted, 233 Conversion takes place for the fiscal purposes, ib. Share of deceased partners liable to probate and legacy duty, when, ib. Secus, if real estate be conveyed to them in individual shares, ib. Takes place where land is bought by partners for purpose of resale, 234 Partners have a lien for advances in respect of the joint property, ib. But not mere joint owners, ib. Reconversion of partnership property not realty takes place, when, 234, 235

COPYHOLDS,
Surrender

of a

Power Surrender of Copyholds.

See Sureties.

of,

when supplied

in equity, 271.

See

Defective ExEcrTlo-X

CO-SURETIES,
Contributions between, 120.

COUNSEL. CREDITOR.
may
itor.

See

BARRISTER.

Where debtor has agreed

to convey estate to him upon trust to pay debts, purchase estate from agent of debtor, 205. See Execution Cred-

CREDITORS,
Purchase in the name of a third party by way of advancement, when good against, 267

How far

settlement

made

in consideration of wife's equity to a settlement

binding against, 534, 535.

See

Equity to a Settlement Volun-

tary Deeds and Contracts.

CROSS REMAINDERS, When inserted in settlement

Or directed
in wills, 32

carrying marriage articles into

effect, 22,

23

542


1107
the
[

INDEX.
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"
l

impes.]

CURTESY, How far

band

Money agreed

affected by tin- Married Women's Property Act, L882, 597, 598 or directed to lie laid out iii land subjed t". whether husSee entitled by to lands of wife being her separate property, !<70.

CONVERSIONSEPARATE CYPRES,
Doctrine
of,

Use.

as applicable to executory trusts, 43, 44

DEBTS, Where purchaser is bound

80.

to see purchase-money applied in payment of. See Application of Purchase-Money. Personal estate primarily liable to. unless exempted, 739. See Exemp-

tion of Personal Estate

from Debts

Exoneration-.
See

DEEDS,
Specific delivery

up of to legal owner decreed. 965. Equitable Mortgage by Deposit of Title Deeds.

CHATTELS

DEFECTIVE EXECUTION OF A POWER,

Aided in equity, and surrenders of copyholds
270
to the use of will supplied,

Such surrenders of copyholds not now necessary, 271

In ichoscfaror defect ire execution niiled. Aided in favour of purchasers, 272 mortgagees, ib.
lessees, ib.

creditors, ib. charities, 273, 274

wife or legitimate child, although volunteers, 274

or provided
for, ib.

But not in favor of a husband, 275

natural child, ib. grandchild, ib. father or mother, ib. brother or sister, ib. nephew or niece, ib.
cousin, ib.
settlor, ib.

others, being volunteers, ib. Against whom equity will aid defective execution of a power. Defect will be supplied against remainderman, 275 Heir, or customary heir, ib. In favour of a sister, against her brothers who were provided for, ib. Whether against heir, being a son or grandson, totally unprovided for

But

without any provision, 270 Also against heres factus, ib. Semble, not in favour of children against children not provided for, il>. As to nature of defect which will be aided. Equity relieves against defective execution where the intention to execute appears, 277 it Though not in form prescribed, ib. As by a covenant, ib. Desire in will, ib. Agreement, il>. Even though donee of power keeps possession of agreement, i) Mere writing, instead of by instrument sealed and delivered, ib. Promise by letter to grant an estate, ib.

quaere, 275, 270. it will be supplied as against collateral heir,

543

1108

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DEFECTIVE EXECUTION OF A
Or

POWER continued.

to give a security, ib. Recital in a deed, ib. Answer to a bill in Chancery, ib. Not by concurrence in deed in ignorance of power, 278 Nor by a parol contract as against a remainderman, ib. As a parol contract to grant a lease, even with acts of part performance, ib. Unless remainderman suffers lessee to expend money on improvements, ib. Equity relieves against defective execution of formal instrument, ib. As if deed or will be executed in the presence of a smaller number of wit-

Or

nesses than required by the power, when, ib. if sealing is omitted, ib. By will, of personal estate, when aided formerly, ib. Will, of real estate, ib. Will, if executed now according to stat. 1 Vict. c. 26, is a sufficient execution of power, 279 Power aided, if executed by will, instead of deed, 279, 280 Secus, where formalities not observed were for protection of a married

woman, 280 As where copyholds to be appointed by will are surrendered by deed, ib. Where wife acts under undue influence of her husband, ib. Appointment not made within time prescribed, not aided, ib. Unless time were a mere matter of form, ib. Not aided unless distinct intention to execute power shown, 281 Sale of an estate by trustee not aided, when they sold estate without timber,

282

Or on sale of land under power with reservation of minerals, ib. Alteration of law by recent legislation, 282, 283, 284 What powers aided. Powers of jointuring, raising portions, sale, revocation and new appointment,
ib.

Power of leasing aided against remainderman, 284, 285 Even in the case of a married woman, 285, 286 As against infant tenants in tail, 286 Defect not aided if execution of power would be a breach of trust, ib. Or a fraud upon the power, ib. Power of leasing not aided when, contrary to power, best rent not reserved,
ib.

Or Or

fine

has been taken,

ib.

Unless donee dies before estate

in futuro, ib. falls into possession, ib. Rent must be so low as to afford evidence of Iraud, ib. Power of leasing not aided if unusual covenants are introduced, when, ib. Agreement to lease without the consent of a person whose consent is requilease
to
site, not aided, ib. to grant a lease before the time authorised, aided, when, 287 Contract to lease in order to bind remainderman must be valid, ib.

made

commence

And

binding,

ib.

after death of tenant for life may render parol agreement binding, 287 By lying by and allowing expenditure on the part of the lessee, ib. And by acts of part performance, ib. Secus, if they had only been allowed or done by tenant for life, ib. Lessee can enforce no claim against estate of tenant for life, ib. Except under covenant for quiet enjoyment expressed, ib. Interest of tenant for life bound to perform contract to let at less than the best rent, when, ib. Purchaser under a power of sale from tenant, for life, bound by notice of his agreement to grant lease, ib.

Remainderman

544

INI) IN.

1109
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DEFECTIVE EXECUTION OF
i

POWERcontinued.
ib.

A delect in lie execution of power under an Acl of Parliament, notaided, Non-execution of a power not aided. 288 Though disability arises from accident, as sudden death, ib.

Or mistaken impression
Secus,
it'

gout, il). thai exercise was not necessary, ib. execution prevented by fraud, ib.

Defects in the execution of powers cured by statute.

Remedies by Statute law by the original and amendment Acts,

Effect of Acts, 288, 289 Courts of Probate, if will

ib.

is valid, could not see whether power is properly followed, ib. May do so under Judicature Act, ib. See Surrender of Copyholds. Effect of Wills Act, '.i\n). Appointment by deed rendered valid by the Property and Trustees Relief Amendment Act, when, ib.

DEPOSIT OF TITLE DEEDS,

Mortgage by, 771. Deeds.
S<c

Equitable Mortgage by Deposit of Title

DIRECTOR OF A COMPANY,
Cannot purchase shares from chairman, when, 181, Must account to Company lor any dealings with it,
182, 183, 184
ib. tiec

Trustee.

DONATIO MORTIS CAUSA.

Doctrine of, derived from the civil law, 1077 Explanation of the civil law, 1077, 1078 Requisites to, 1078 Gift must be in contemplation of death, ib. To take complete effect only in case of the donor's death, ib. Condition implied, if the donor is in the extremity of sickness, ib. An immediate irrevocable gift bad as, 1078, 1079 Legal transfer good, as if there be a condition express or implied that to take effect only in the eventof the donor's death, 1079 On recovery of the donor the donee will be a mere trustee, ib. Unless there be a confirmation of the gift as absolute and irrevocable, There must be a delivery to the donee for his own use, ib. Or upon trust for another person, iD. Or for a particular purpose, 1080 Or coupled with a condition, ib.

it is

ib.

Or made

subject to a trust, ib. Civil law the same, ib. Delivery to an agent, in the character of agent for the cient, 10S1

donor

is

not

suffi-

Delivery must be contemporaneous with declaration, ib. Donor must part with dominion over gift, ib. Subject to condition making void the gift on his recovery, "Whether it be expressed, ib.

ib.

Or implied, ib. Delivery by way of symbol is insufficient, ib. As delivery of receipts for South-Sea Stock, ib.
Scrip certificates f railway stock, ib. Savings bank book. [082 Note not payable to bearer, ib. Cheque if not presented or negotiated before donor's death, ib. Cheque and pass book. ib. Cheque on deposit note, ib. Billon a goldsmith to wife "to buy mourning," held valid, ib.
<

* 35

WHITE ON EQUITY.

545

1110

INDEX.
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DONATIO MORTIS CAUSAcon tinued.

Delivery of the key of a trunk held a sufficient delivery of
tents
it

and

its

con-

a tally on government,
in

ib.

Cheque given by stranger

exchange

for a

cheque given before donor's

death constitutes valid, ib. Delivery of a bond good, although an action

profert, ib.

may

be maintained without

Though not of a simple contract debt, ib. And of bank notes and of notes payable to bearer, 1082 Deposit notes given by a bank to the donor, il>.
Notes or bills payable to order though not indorsed by donor, ib. Cheque payable to donor or order without being endorsed by him. ib. Distinction between donor's cheque and the cheqne of another person for value as the subject matter of a, ib. Explained by Chitiy, J., 1084
Delivery of life policy constitutes a valid, ib. And of mortgage deeds of real estate. 1U84, lO^o And of a document which is essential to the recovery of a debt, 1085 Where there is no delivery, there can be no donatio mortis causa merely by
parol, ib.
it can be made by writing, quaere, 1085, 1086 Semble, gift in writing without delivery,, testamentary, 1086 Evidence to establish should be clear, ib. Especially where undue influence is likely to have been used, As between solicitor and client, ib.

Whether

ib.

Priest

and penitent,

ib.

No

abs >lute rule that such donation may not be established by sole evidence of claimant, ib. Corroborative testimony important, ib. Semble, five witnesses required by the Civil Law, ib. An issue maybe directed when the donatio m liis causa is doubtful, 1087 How a donatio mortis causa, resembles, how far it differs from, a legacy and a gift inter vivos, ib.

Stamp duty due

on, ib. will be defeated by recovery of the donor from his illness, 1088 By his resumption of the gift, ib. Cannot be revoked by will, as it becomes complete on the death of the

donor,

ib.

be satisfied by a legacy, ib. be made the subject of election, ib. Not abolished by the Wills Act, 1 Vict. c. 26,

May May

ib.

DOWER,
Secret acts of husband against, before marriage. 485 Election between, and gifts conferred by the will of the husband, 420 Monev directed to be converted into land liable to, when. 977 See Con version, Election Fraud upon Marital Rights.

ELECTION.
1.

Sec

Conversion,

The doctrine of, 405, 406 Persons disappointed by election, entitled to compensation, 406
not forfeiture, ib. his estate on his death, 407 Action for compensation or damages, ib. Person electing to take against an instrument must repay what he has received under it, ib. And has a lien on the fund elected to be taken, 407 Is not applicable unless there be a fund out of which compensation can be

Or

made, 407, 408

540

INDEX.
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1111

ELECTION

onlinved.

Doctrine of, not applicable <o persona taking a derivative interest from persons bound to eleet, 4<)K Or between benefit conferred by a will ami an interest taken adversely therct and derivatively from the real owner not benefited thereby, ib. Secus, if derivative interest vested bef re death of testator, ib. Doubtful whether it applies to grants from the Crown, ib. Is applicable to deeds as well as to wills, 409
>

To what

interests applicable,
>

il>.

Intention t raise a ease of election must appear in the mil itself. 10'), 410 Case of arises whether person disposes of property of another knowingly or by mistake, 410 Though alter will the other person puts the property into settlement, ib. Case of arises though there he partial failure of bequest to party pot to. ib. Mere recital of persons being entitled to property, not sufficient to raise
ease
<

f.

ib.

Cases ot sustained with more difficulty where a testator lias a partial interest in property devised, 411 Ordinary construction that be only intends to devise his own interest, ib. Unless he uses words showing he intended to devise entirety, ib. Especially if then' are directions as to repairs ib. Or intention to give a moiety correctly described as such in another part
of the will.
ib.

What
Or

On

a sufficient description to show intention to pass wife's property, ib. an entirety by a partial owner, ib. an immediate and absolute interest by a reversioner, 412
facie reversioner

Prima

understo d to dispose only of his

ib.

own

property, ib.

Contrary intention,

how shown,

Intention will not prevail against confirmation of settlement creating estates coming before reversion, ib. Incumbrancers prima facie not put to their election by a devise of incumbered estates, ib. Unless intention appears to be clear that property should pass unincumbered, ib. Property of another will not pass under a general devise, 41.'I Devise in strict settlement will not extend general words, ib. Though testator's devisable interest be only an estate pur autre vie, ib. Parol evidence not admissible to show intention to comprise another's property under a general devise, ib. General bequest by joint tenant will not raise a ease of election against surviving .joint tenant, ib. Subject matter of bequest to do so must be specifically and clearly referred to. 413, 414 Intention to dispose of another person's lard, bow shown, 413, 414 When confined to land in a particular It calily. ib. Rnle of, not excluded by parties being expressly put to their election, as between benefits conferred and sums due to them from testator, ib. May be excluded by intention, that only one of bis gifts is conditional on giving up what testator takes away fr him. ib. May be raised by a dwt\ without there being a clear intention en the part of the settlor to dispose of the property of another. 115 Party cannot claim under and againsl a settlement, ib. Application of principle of approbation and reprobation, to voluntary deeds. 416 To contracts for value resting in articles, ib. Executed by conveyance or assignment, ib. Devisee of distinct properties belonging to devisor not bound to elect to to take all or none. ib. May take what is beneficial, rejecting what is onerous, ib.

547

1112

INDEX.
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ELECTIONcontinued.
Unless acceptance of both
is

made

a condition by the testator,

will, ib.

ib.

Or gift is single and undivided, when, 417 Not applicable as between two clauses in a Heir put to his election, when, ib.

Want

of capacity to raise case of election by devise on account of infancy, ib. on account of coverture, ib. Heir formerly not obliged to elect between legacy and freeholds taken by him in consequence of an inoperative devise, ib. Unless legacy given upon express condition, ib. Heir formerly obliged to elect between after-acquired estates descending to him, and benefits given by will, ib. Of heir of copyholds not surrendered to use of will, 419 Heir of heritable land in Scotland compelled to elect, when, ib. Widow put to her election between doivcr and gift, by express words, 420 Widow put to her election by devise of entirety inconsistent with her enjoyment of dower by metes and bounds, ib. Not by devise to her of part of the lands of which she is dowable, ib. Nor by a devise of such lands upon trust for sale. ib. Though part of the proceeds of the sale are given her, ib. Or rents are to go as the income arising from the sale, ib. Or an annuity or rent-charge is given to her out of the land, ib. Testator's dealings in his lifetime not takeu into consideration in a question of, 4:21 Provisions inconsistent with assertion of right to dower, ib. Devise of entirety of lands to trustees, ib. Or showing that personal use and occupation of entirety by devisee was in-

Power of

tended, 422 leasing to trustees held inconsistent with dower, when, ib. Direction to cut down timber, 423 Devise to trustees with powers of management and leasing inconsistent with right to freebench, ib. No part of property liable to dower when intention is to exclude dower on part. 423 Though property be devised in general terms, ib. Widow obliged to elect on devise to her and others in equal shares, when, 423, 424 Widow obliged to elect if she has a provision given to her in lieu of dower, although devisee of real estate die in life of devisor, ib. Secus, where there is a gift to the widow in lieu of thirds of personalty and there is a failure of a bequest thereof, ib. Provision in lieu of dower and thirds at common law does not extend to distributive share cf personal estate, ib. Secus, if the words be added '"out of any real or personal estate," 425 Words in lieu of dower or thirds at common law, or otherwise," extend to freebench in copyholds, ib. Dower of widows married since 1st of January, 1S34, not entitled to dower of land absolutely disposed of by husband in his life, ib.
' :

Or by

will. ib.
ib.

Barred by declaration in deed,

of an}' land of which she is dowable, ib. Or any estate or interest therein, ib. Unless a contrary intention be declared by will, widow's right to dower not bound by bequest of personalty, ib. Or devise of land of which she is not dowable, ib. Semble, widow may be barred oi dower by a mere general disposition of

By

a devise to the

widow

his land.

ib.

548

INDEX.
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1113

ELECTIONcontinued.
same as to freebench though not surrendered to uses of 426 Or by a general devise upon trust for sale and to pay part of proceeds to
result the
will,

The

wife,

il>.

to lie invested in an annuity, ib Doctrine of, not applicable to ci editors taking under a devise, ib. Is applicable to appointments under a power, ii>. When express appointment is made to a stranger, and a benefil conferred upon persons taking in default of appointment, ib. Where appoiniment under a non-exclusive power is made to one of a class, and a benefit conferred on another, ib. Appointees node" appointment not validly revoked by a subsequent instrument, must, elect between benefits conferred by such instrument reappointing in favour of others, 427 Objects of a power must elect between benefits conferred upon them and improper delegation of power, ib. Also by persons taking a benefit under an instrument by which there is a revocation in excess of power, ib. Does not arise where testator does not give property of his own to an object of the power, ib. Nor upon a non-execution of power on erroneous impression, stated in the will that legatee will divide the fund with another, ib. Nor will a case of, arise between two appointments under limited powers,
4:28

Or of the income

Or where there
law, 428

is

an attempt

to execute a

power

in violation of the rules of

also legatees, directing them to settle the property on parties not objects, does not raise question of, ib. Secus, where there is a clause of forfeiture of the legacy on non-compliance

As when it is void for remoteness, ib. Appointment to objects of the power,

with direction, ib. raised by merely precatory words, requesting appointees to leave to persons not objects of povfer, ib. Case of, can only be raised by a direct appointment to a stranger, ib. Absolute appointment to objectof power cannot be modified by illegal direc-

Not

tion, 4:29.

raise a case of election, ib. Compulsory election and privileges of persons compelled to elect. Persons compelled to elect by decree of Court, 429 Allowed to ascertain relative value of properties, ib. Accounts if necessary directed, ib. And debts upon different funds apportioned, ib. Formerly bill tiled to take accounts, ib. Not always necessary, ib. As where cause in existence, ib. Made under mistake not binding, ib. Effect of party not electing within time limited, ib. Of confirmation by heir of invalid devise. 430 Voluntary election, what will be cotisidered as amounting to. Election is either express or implied, 430

Or

By

implication, what

amounts

to.

ib.

Inquiry directed as to whether it has been made. ill. Receipt of rents ami profits of two properties between which party must elect, not considered as, ib. Acts must be done with know ledge of rights, ib. And with intention of electing, i!>. As to w hat lapse of time will prevent party setting up plea of ignoranceoi his rights, 431

540

1114

INDEX.
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ELECTIONcontinued.
be inequitable to disturb rigbts of others, ib. Representatives bound by, ib. In some cases where person bound to elect would not have been, ib. Unless they can oiler compensation, ib. Remainderman not bound by election of party having a prior interest, 432 Nor one of a class by the majority, ib. If doubtful may be sent to a jury, ib. Forms of decree when election found on inquiry to have taken place, ib.
Election in the
ease,

May

of parties under /Usabilities.

Practice as to election

by

infant, ib.

By married woman, 432, 433 With regard to her interest in real property, ib. With regard to reversionary interest in personalty. 433, 434 Jurisdiction for Court to elect on behalf of woman of unsound mind, 434
Rights of parties disappointed by heir electing to take estate contracted for

by testator, ib. Death of person to

"Where his

elect

without electing,

ib.

property, and property bequeathed to him being personalty, iegatee or next of kin elect, ib. Each of next of kin has a separate right of election, ib. Not bound by the election of the majority, ib. Nor by that of the heir at law, ib. Or administrator, ib. Next of kin electing must give up benefits under will, ib. And bring into account interest of person through whom be claims, ib. Does not take place when the property goes different ways. ib. But party taking testator's property bound to make up sufficient to satisfy

own

disappointed legatees,

ib.

Legacy duty not payable on personal estate given up by one legatee to another under doctrine of election, ib. Secus, where testator bequeaths personal property of another, when, ib. By whom succession duty would be payable in these cases, ib. 2. Election to take land or money in Us actual slate. May be made by the absolute owner, 1004 "Who would thereby put an end to trusts for sale, ib. "Without such election trustees may exercise power, when, ib.
Infant cannot elect,
ib.

But the Court can

for his benefit, ib.

Lunatic cannot elect, 1005 Nor a feme covert by contract or ordinary deed, ib. Except as her separate property, ib. But by deed executed according to stat. 3 &, 1 "Will, 4, c. 74, she may elect to take <r dispose of money to be laid out in land, ib. Or real estate to be converted into money, ib. Even though her interest be reversionary, 100o* Husband may concur, although he has executed a deed in favour cf his creditors, ib.

Or has obtained his discharge as a bankrupt,

Married

ib.

woman may

elect to take out of

Court upon her separate examina-

tion a fund impressed with the character of realty, ib. sale under Lands Clauses Act convert her reversionary interest in real property into personalty, ib. Right of jointress after sale of land on which jointure is secured, to insist

May by

on reconversion, ib. Person entitled to property held subject to a charge on trust elect to take it as realty, ib.

lor sale,

may

550

INDEX.
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]

1115

ELECTION

continued. And heir of party electing upon sale: after his death, will bo entitled to residue after payment of charge, il>. Power to reconvert may be delegated by the settlor to trustees, ib. Or others, ib. But they Cannot exercise power after property has become vested in parties absolutely thereto, ib. Where money to arise from land is to be divided amongst several, none of

them can

SeCUS, where

Person tingency, elect to take estate as realty, ib. Election will become operative upon the contingency happening, Either before or upon his death, ib.

elect to take bis share of land. 1< 106 money is to be laid out in land for tenants in common, 1007 contingently entitled to proceeds of real estate may, pending conib.

How

far remainderman may elect, ib. As to election of tenant in tail of money to be laid out in land, ib. Where there are remainders over. 100H Not essential that election should be made in a suit, ib. Where lands entailed are taken under Lands Clauses Act, tenant

in

tail

obtain payment of the money, 1009 But lie must execute and produce to the Registrar a proper disentailing deed, ib. Election may be made by express declaration, ib. It may be slight. 1009 If unequivocal, ib. Express declaration to elect may be made by parol, ib. By will, 1009, 1010 Even of a married woman with regard to her separate property, 1010 Presumption of, arises from slight circumstances. 1010 Keeping land unsold for s me length of time. ib. Even when legacies payable out of proceeds are unpaid, if assent of legatees t< election be expressed, ib. Or can be inferred from their conduct, ib. A fortiori where charge has been paid off, ib. Presumption will not arise from possession for a short time only, ib. Especially if several aie interested in common, ib. But presumption is sufficient where party entering into possession takes deeds into his custody, ib. But acts having reference to land in possession are not indicative of intention to convert thi se in remainder, loll By declaration of trust in deed, 1011, 1012 By reservation of rent in a lease. 1012 By a new letting to a tenant from year to year, ib. By many circumstances taken together, ib. By receipt of money to be laid out in land. ib. But not by receipt of income, 1013 Donatio mortis causa may be the subject of, 1088

may

ENTIRETIES.

SceTENAXTS BY ENTIRETIES.

EQUITABLE MORTGAGE,
Created by mere deposit- of title deeds, notwithstanding the Statute of Frauds, 771 And gives an interest in the land, ib. How far recognised at law before the Judicature Act, 775 Nearly all propertj can be made subject of, 775 Created by deposit of a copy of court rolls, ib. Of an agreement for a lease, ib. Though afterwards granted on different terms, ib. Of a policy of assurance, ib.

551

1116

INDEX.
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[*]

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EQUITABLE MORTGAGEcontinued.
Of Of
a registered
ib.

mortgage of a

ship, ib.

certifiates of shares in a public

company under Joint Stock Companies

Act,

Depositee of certificates of shares with transfers, having name of transferee in blank has implied power to fill up blanks, ib. And obtain registration, ib. Semble, if no time be fixed for repayment, or object of transfer, depositee cannot sell or submortgage shares, ib. Or fill in the name of the purchaser or subpurchaser, ib. Notice to Company necessary to take case out of order and disposition clause of Bankruptcy Act, 1869, 77G and of the Bankruptcy Act, 1883, ib. Deposit of land order of the New Zealand Company, good -without notice,
ib.

By

public companies under Joint Stock Companies Act valid,

to their

ib.

Except

own

officers, ib.

Authorities disapproved of by Sir G. Jessel, M. R., ib. Inclination on the part of the Court to confine principal -within narrowest
limits, ib.

Does not apply to persons claiming under or through a director or

777

officers,

or to partners who were not all directors, ib. or when directors mortgagees of property of the Company have given proper directions to secretary to register, ib. Deposit may be made by Company to their banker, ib. Registration not essential to a loan to ordinary shareholders on debentures,
ib.

Views of Malins, V.-O, opposed

to those of Jessel, M. B., ib. Directors of a benefit building society, cannot by deposit with lenders of title deeds mortgaged to them, give a special charge on specific properties,

778

up securities, entitled to payment out of assets of society, ib. And in priority to claims of shareholder, ib. By deposit of title deeds of lands in Scotland, ib. Of a minute of a lease and pledge of chattels in Scotland, ib. Of a house in Shanghai, ib. Valid where the lex loci rie sita? does not forbid, ib. By deposit of receipt for purchase money, when, ib.
Depositees on giving

Semble, not by deposit of attested copy of a deed, ib. deposit of land certificate under the Land Registry Act, 779 Under the Land Transfer Act, ib. Prior to Russel v. Russet, a mere deposit gave no interest in land except

By

collaterally, ib.

Effect of deposit as a contract, 779 Effect of deposit is to give lien on land, ib. Not on the deeds, ib. Equitable mortgagee may be ordered to lodge deeds in court, 780 But mortgagee entitled to retain memorandum of deposit, ib. Deposit of deeds on condition, ib. Party obtaining fraudulently cannot create as against the real owner, ib.

Who may recover them back, ib. Statute of Limitations will not run until refusal of deeds on demand, How (qui table mortgage may be created. By express evidence of intention to create mortgage, ib.
By By
parol, ib.

ib.

writing,

ib. ib.

Partly by parol and partly by writing,

552

INDEX.
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1117
pages.]

EQUITABLE MORTGAGE continued.

Presumption of intention to make arises, when, ib. Mere possession of deeds not sufficient, ib. A fortiori if inference be raised that a deposit was not intended, 7-1 Mere possession by mortgagee of freeholds, of deeds relating to leaseholds
support deposit, ib. If not then sufficient, inquiry not directed, ib. Presumption of intention to create not raised against written

What
ib.

will not give lien on Leaseholds, ib. evidence sufficient at hearingto

document,

Parol evidence not admissible to contradict

ib-

memorandum on

deposit,

when,

is admissible to

extend

lien created thereby, ib.

on dep isil requires ad valorem stamp, when, ib. But parol evidence may be given to establish equitable mortgage when unstamped memorandum is not admissible, ib. Memorandum to secure annuity formerly acquired enrolment, 781, 782 Registration in Common Pleas "requisite as against purchasers, 78:2 Mortgagees, ib.

Memorandum

Creditors, ib. Deposit of deeds to prepare legal mortgage raises presumption of intention to create, ib. Or a direction to hold them till settlement of an account, ib. Or the execution of a mortgage, ib. Not created when deeds remain in the hands of the debtor, ib.

Though accompanied by
Especially
if

memorandum,

ib.

not communicated to creditor, ib. Debtor may hold deeds as servant of the creditor, ib. A deposit with third person when g iod, ib. Not when with wife of depositor, ib. By a written memorandum when deeds are in the handsof a third person,
ib.

"Written agreement to deposit a lease when granted creates, 783. Not a parol agreement, ib. Or a verbal order t the intended lessor, ib. Written memorandum of mere intention to make a deposit not communicated t.> creditor will not create. 783 Put trust for payment of debt may be created, ib. May be created by a deposit of part of the title-deeds, when, ib. Each depositee will have a valid deposit, ib. Unless intention of parties appears to have been otherwise, ib. Not necessary that the deeds should show a good title in the depositor, ib. As when he does not, deposit conveyance to himself, il>. Deposit of a lease held to amount to an equitable mortgage of fee, when, ib. Effect of a deposit of deeds relating to part of the estate, ib. Mortgage of lands in Middlesex by mere deposit docs not require registra>

tion, 783, 784 Not rendered void by subsequent deed not duly registered. 784 Person taking under a subsequently registered conveyance not entitled to priority over unregistered equitable mortgagee, ib. Nor is a purchaser from such pers n. ib. Deposit, if accompanied by a memorandum, reqn ires registration in order
to retain priority, ib.

What property

or interest

is

included in a mortgage by deposit.

ib.
1

Whole property comprised in deeds prima facie, Memorandum may show extent of security, 7What estates are included, ib.
Fixtures,
ib.

Furniture,

ib.

1118

INDEX.
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]

EQUITABLE MORTGAGEcontinued.
Or limit
it to a portion of the property, ib. Equitable mortgage limited to property comprised in deeds, ib. Though memorandum extend to others not deposited, ib. Or it lie falsely stated that deeds relate to other property, ib. Creditor will have a lien on all the deeds of a debtor abstracting deposited deeds, 785 Trust estate not affected by deposit made by trustee, ib. But only his own interest, ib. A fortiori il the trusts appear upon the deeds deposited, ib.

After-acquired interest of depositor comprehended by deposit,

ib.

Share taken by subsequent partition, ib. Benefit arising from the payment of an incumbrance by the depositor, Existing fixtures, ib. Subsequently added, when, ib. Immaterial though deposit he accompanied by a memorandum, ib. Or it there be a memorandum though no fixtures are mentioned, 78G

ib.

Or some

only,

ib.

Result the same whether deposit be

fixtures, ib. Or by lessee owner of fixtures, ib.

made by owner of the

fee

owning the

And Law

although as between landlord and tenant they are removable, ib. allowing removal of fixtures between landlord and tenant, not applicable to mortgagor and mortgagee, 780. Produce of fixtures on expiration of lease of deposit, ib. Goodwill, ib.

And licence of public house, On bankruptcy of depositor,

ib.

fixtures comprised in equitable mortgage, not in his order and disposition, ib. Registiation of, under the Bills of Sale Act, not required to maintain priority over subsequent mortgagee's act by assignment of fixtures

registered under Act, ib. Trade fixtures mortgaged with leasehold by deposit without registration on bankruptcy of the depositor in his order and disposition, 787

Unless depositee has taken pi ssession of them, ib. Registration under act held requisite on actual assignment of leaseholds with trade fixtures. 78 Law not altered by the Bills of Sale Act, 1S78. ib. Deposit of agreement for lease by a person having a lien affects lien of
depositor, ib.

Right of wife by survivorship to equitable mortgage by deposit not affected by her husband's transfer, when, ib. Interest of remainderman not affected by deposit ef partial owner, ib. Deposit may be made by an executor without co-executor joining, ib. Tenant in common joining may bind his share, ib. Secus, if he does not intend to do so, ib. Fji- wliat ddtti an (q titaMe mortgage may be a security. Ordinarily for sum advanced at the time of the deposit only, ib.

When

antecedent advances, ib. subsequent advances, 789 Deposit for illegal purpose converted by parol into a legal purpose, Deed deposited until a certain event happens, ib. Deposit to secure simple contract debt bears interest, ib. Contract for payment of fixed interest down to a certain day, 790 No further interest allowed by implication, ib.
for

for

ib.

But by way of damages until payment, ib. Provision for payment of interest ou non-payment of principal must be
complied with,
ib. ib.

Assignment of mortgage may be made bv delivery of deeds,

ail

INDEX.
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jiages.
]

1119

EQUITABLE MORTGAGEcontinual.
And
without the memorandum, should there be one, ib. Assignee ol mortgagee, without privity of the mortgagor, takes subject to account between the iu< rtgagor and mortgagee, ib. Cannot add to what is due, ib.

Or turn interest into principal, ib. To whom mi equitable mortgage may beextended, ib. To future members ol a firm, when, 790, Till Parol evidence not admissible to .show that depositor holds deeds to secure debt also of another, 791 New owners of property may acquiesce in deposil of former owners, ib. General lien of bankers on securities deposited with them, ib. Of stockbrokers, ib. Deposit will not prevent general lien attaching, 792

As against idiom deposit of title deeds As against the Crown, when. ib.

in

good.

creditors of a bankrupt, ib. a subsequent judgment debtor, ib, prior voluntary settlement under 27 Eliz. c. 1. ib. as a creditor against voluntary settlement under 13
e.

Eliz.

5, ib.

to secure voluntary

bond debt, valid

ib.

as against subsequent

bankruptcy, when.

husband of depositee transferring mortgage, ?!):; valid in Ireland as against creditors of a banker unless registered, ib. Depositee liable to all equities affecting the depositor, ib. Title deeds deposited in breach of trust, ib. Kail way certificates. 7915, 7!)4 Trustee of bankrupt not allowed to disclaim* lease to the prejudice of his depositee, 794 But on assignment of the lease to the mortgagee the trustee must be in-

Not

demnified,

ib.

Priorities on between equitabte mortgagees

ib.

ami

others, ib.
lias priority,

Legal mortgagee without notice cf prior equitable mort^a^e

Secus,

if with notice, 791 Exception in case of notice of deeds being in the hands f the solicitor of the mortgagor, ib. Legal mortgagee not postponed to prior equitable mortgagee merely from his not having g it title deeds, ib. Except when fraud or gross and wilful negligence can be imputed to him,
<

ib.

Irish registration law to impose duty of enquiry for previous unregistered interests. 7 Either on mortgagee or purchaser, ib. But they cannol allege them to be void because unregistered, ib. Legal mortgagee enabling mortgagor to commit a fraud by giving him up deeds postponed to subsequent equitable mortgagee, ib. If equitable mortgagee had no notice of legal mortgage, ib. Legal mortgagee liable for fraud of his agent, ib. Third mortgagee ascertaining that title deeds are in possession of the second mortgagee, apparently as first, entitled to prierity over first mortgagee, ib. Depositee entitled to priority over lien of vendor, when, 79(3 Equitable m< rtgagees rank according to date, when, ib. Though part of the deeds have been deposited with one. and part with another, ib. Prior equitable mortgagee neglecting to get or giving up title deeds, when, postponed, ib.

Not the policy of

>">

1120

INDEX.
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to the [*] pages.]

EQUITABLE MORTGAGE continued.

Equitable mortgagee by getting legal estate, may obtain priority, when, ib. Secus. by getting in a legal mortgage of which all had notice, 797 By registering memorandum, of deposit in Middlesex, 197 In Ireland equitable depositee without memorandum note not postponed to subsequent registered conveyance, when, ib. Prior equitable mortgage by deposit with memorandum in register county neglecting to register, postponed to subsequent equitable mortgage,

when,

ib.

fortiori if

he

left

Effect of deposit
Privileges

a great many deeds in the hands of the mortgagor, under the Yorkshire Registries Act, 1884, ib.
equitable mortgagee.

ib.

and remedies of

Depositee not compelled to take legal assignment of lease, ib. Though he may have entered on the premises, and paid rent, ib. But he would be liable for his occupancy as a tenant, ib. Proviso making void a lease on assignment, does not apply to a deposit, ib. Order for sale of premises included in deposit when made in bankruptcy,ib. No merger in Ireland of mortgage by deposit with statutory mortgage, ib. Realization of mortgage securities in bankruptcy under new orders substituted for Lord Loughborough s order, ib. On bankruptcy of depositor mortgagee may seek relief in bankruptcy, ib. or in Chancery, ib. Entitled in bankruptcy to a sale, 799. Conduct of the sale to whom given, ib. Refusal to be made when deposit of deeds was for improper purpose, ib. As to secure future costs of a solicitor, ib. Especially if made shortly before bankruptcy, ib. When advanced to trustee to commit a breach of trust, ib. By way of a fraudulent preference, ib. Order for sale refused on stale demand, ib. Inquiry when directed, 800 From what time in bankruptcy equitable mortgage entitled to rents, ib.
1

To growing crops, ib. Whether Court of Bankruptcy can make order

Depositee

for foreclosure, ib.

And
And
Or

take proceedings in Chancery for foreclosure, ib. at discretion of Court he may by statute law obtain an
ib.

may

order for

sale, ib.

Independent of statute law only entitled to foreclosure,

not to a decree for sale (according to Pryce n.) 801 Whether there be a memorandum, ib.
not, ib.
v.

Bury, 16 L. R. Eq. 153

Foreclosure remedy of equitable mortgagee by deposit cf mininglease, ib. As to form of decree, ib. On deposit accompanied by agreement to execute a legal mortgage depositee entitled, to sale, 801

Or

foreclosure, ib.

Bury doubted, ib. remedy where security is scanty, ib. Or where mortgagee in action after mortgagor's death alleges a deficiency
Prijcc v.

Sale proper

'

in personal estate, ib. Sale instead of foreclosure allowed by the Conveyancing and erty Act. 1881, ib. Remedy of pledgee of personal chattels is by sale, 802 Foreclosure or sale not decreed against trustee of a charity
posit, ib.

Law

of Prop-

making a

de-

Foreclosure,

When day

when directed against an infant, ib. given to show cause against decree, ib.

55G

INDEX.
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to tho [*] pages.]

1121

EQUITABLE MORTGAGEcontinued.
Decree of sale against an infant, when immediate, ib. Vesting order, when made by the Court, il>. Receiver may be obtained by equitable mortgagee, when, 803 Injunction against equitable mortgagor dealing \Nith legal state, ib. Proof of equitable mortgagee in an administration suit, i)>. Under the Judicature Act, 1875, s. 10, ib. Previous to tin* Act, ib. Equitable mortgagee of land in Ireland, when lessee has been evicted, may file bill for redemption, when, ib. Proceedings by equitable mortgagee of policy of assurance, on death of as<

sured,

ib.

Semblc, cannot in the absence of legal personal represi ntative obtain payment from the office, ib. Or from the Court, 804 "When legal title to the money and interest will commence to run, ib. Loss of deeds or memorandum of deposit do not deprive mortgagee of his
remedies, ib. Secus, if parted with,
ib.

instrument accompanying deposit rectified, when, ib. Jurishici ion of bankruptcy to order a sale taken away by suspension of proceed in^-; under the Bankruptcy Act, 1HG1, s. Ill), il). What proceedings may be taken by equitable mortgagee against the trustee in bankruptcy of the mortgagor, ib. Trustee in bankruptcy ought not to object to proceedings in bankruptcy, 805 In ease of composition Courtof Bankruptcy cannot make an order of sale, ib.
Error
in

EQUITABLE WASTE,
Vol.
2.

859, 8G2, 864.

See WASTELEGAL

MoBTGAGESSee

EQUITY TO A SETTLEMENT,
Of wife, out of her own property, r>07 Jurist ict ion first assumed, where the assistance of the Court was sought to obtain the property, 508 Wife may now assert her equity as plaintiff, ib. Or by petition in existing suit, 508 Trustee justified in refusing to pay wife's fund to husband, ib. When justified in paying fund of wife into court, ib. Entitled to his costs as between solicitor and client, ib. Unless his conduct be vexatious, ib. As where the husband has made a sufficient settlement, ib. Trustee may join in a settlement of the wife's funds, ib. Enforced by the Court of Bankruptcy, 509 Not enforced in case of property settled to separate use of a married woman,
ib.

Necessity for married Property Acts, ib.

1.

woman

to assert

diminished by the Married Women's

Out of what propt

can claim her

>///

unaffected by the Married

to
<i

Women's Property Acts

the wife

<<jt<iii/

settlement.

Wife entitled to settlement out of equitable property, 510 Out of a legacy though charged on land. il>.
Out of equitable estate in fee of the wile, ib. Bui possible estate by curtesy of husband not interfered with, ib. Out of legal property, the subject of a suit in equity, according to Sturgte v. Champneyn, ib. But semble, not where bill is filed by the wife in such a case, ib. Doubtful whether wife is entitled to a settlement out of a legal chose in
action, 511

557

1122

INDEX.
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[*]

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EQUITY TO A SETTLEMENTcontinued.
to out of money to be laid oat in land of which she is equitable tenant in tail, ib. Nor out of land of which she is legal tenant in tail, ib. Or tenant in fee. ib. Entitled to. out of sum of money arising from rent of real estate paid into

Not entitled

Court,

ib.

Out of a trust term in land, 511, 512, 513 Out of estate tail in possession, during terms

to secure jointure, 513

Mortgagee in possession of wife's free hold not allowed, as against assignees of Husband, payments to wife, ib. Wife n it entitled to out of legal interest in leaseholds as against mortgagee of husband seeking foreclosure or sale, ib. Entitled to redeem, when, ib. Out of a life-interest or income of equitable property, on husband becoming bankrupt or insolvent, ib. Or upon husband deserting his wife, 514 But not when she is living with and is maintained by him, ib.
entitled to out of equitable life interest as against assignee, for valuable consideration, of the husband, ib. Assignment of a life-interest of a married woman in a fund not supported beyond the joint lives of herself and her husband, 514, 515 Unless it were settled to her separate use, ib. Or came within Malms' Act, ib. Husband's mortgage of wile's inheritance prevail.' for his life interest, 515 Assignment of income by husband maintaining his wife valid as against, ib. Tli >u.di interest at the time of the assignment was reversionary, 515 "Wife may claim out pf property she was entitled to, before as well as after marriage, ib." Court cannot order a settlement out of reversionary personal property, ib. Eight to, can only be decided when reversion falls into possession, ib. But see now 20 & 21 Vict. c. 57, ib. Wife cannot as legatee, claim out of testator's estate to which her husband as defaulting executor, is" indebted, ib. Is entitled to, out of share of fund in court, though fund not distributable until further consideration, 516 And th mgh her share has not been ascertained, ib.
2.

Not

Righ'a of children

to

an

interest

under the settlement.

Settlement always extends to children, ib. Thoagi she has none at the time, ib. Reference as to children, ib. Children of a former marriage provided for, ib. But the equity is personal to the wife. ib. Children cannot insist upon a settlement after the death of wife, unless she has asserted her right to one, ib. And wife may, at any time, before her settlement is completed, defeat their interest by waiving her right, .">17 After a contract or decree for a settlement, the rights of the children not defeited by her death, without waiver, ib. Although the children are not mentioned in the decree, ib. Omission, if for a long time acquiesced in, not supplied, ib. If husband bound children after death of wife may insist on settlement, ib. Although she was not bound, 517. 518 The rights of the children do not attach upon filing of a bill for a settlement merely, 518 Wife may at any time waive her right before it is actually made, ib. But when she has insisted upon, against her husband's assignees, she cannot waive it in his favour, ib.

558

INDEX.
TTho paging refers
t<>

1123
(

ih<>

pages.

EQUITY TO A SETTLEMENTconlinved.
So as
to defeat rights
<1<>

May
3.

of children, so in favour of assignees,

ib.
d>.

Right of children defeated l>\ divorce of mother, when, ib. Ah to amount of the wife's property to be settled. Where husband solvent amount to be settled generally agreed upon, ib. If husband when solvent declines to make a settlement allowed to receive inc nne of wile's property, ib. Unless he has been guilty of misconduct, ib. Where husband was bankrupt or insolvent according to old rule, one-half
settled, 518, 519

Rule relaxed according to the discretion of the Court, 519 The whole fund .settled under special circumstances, 520

As against whom, ib. As where husband is bankrupt

fortune
IV

or insolvent, having received a considerable

his wife,

ib.

Where no

settlement has been made, 520 Especiallv if land be a bare provision, ib. Or (here has been bad conduct ou the part of the husband, As desertion, ib.

ib.

Or

cruelty, ib.

where any allowance to the husband would be absorbed in costs, ib. Less settled where assignee by long negotiations had incurred expenses, ib. As against husband and his general assignee, same amount settled, ib. "Wile, oil obtaining decree for judicial separation on the ground of cruelty, entitled to her choses in action absolutely, 521

fortiori

4.

As

to the

mode of settlement

the husband, 522 In default of children, husband, as a general rule takes absolutely, 521, 522 Rule not departed from when husband has assigned his interest, 522 Or has become bankrupt or insolvent, ib. Or where wile's relations are poor, ib. Form of settlement, of wile's real property mortgaged by herself or hus-

By the Court in the case of a personal fund, ib. Where the whole fund settled with the assent of

band,

ib.

Where an
523

equitable fee and a business had descended on a married

woman,
ib.

Effect of Married "Women's Property Acts in cases of descended property, Settlement of small fund made by decree of Court when, ib.
5.

Waiver fsleilement by the wife. Wife's consent to waive right to settlement, how taken, ib. In court, ib. Abroad under a commission from the Court, 524 Or from a competent Court abroad, ib. In examination of wife her husband ought not to be present,
<

ib.

Nor his solicitor, ib. Nor any one connected with him. ib. Ascertainment of wife's wishes by trustees, without an examination not
sufficient, ib.

cannot refuse to take consent of wife. ib. Unless there be fraud or compulsion on the part of the husband, ib. Even when the wife a ward of Court married the day after she was of age,
ilirl

ib.

Consent cannot be taken till amount of fund be ascertained, ib. deduct! n of costs, ib. Except when only liable Not binding when given under mistake, ib. Time for transfer to husbaud, notwithstanding consent, may be postponed by Court, 525
1
>

550

1124

INDEX.
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[*]

pages.]

EQUITY TO A SETTLEMENTcontinued.
Consent by wife may be retracted before transfer, ib. Seuible, consent not necessary on application by husband and wife
for

pay-

incut to her of life annuity, ib. Affidavit, of no previous settlement, to be made by husband and wife on waiver of her settlement, 525 If there be previous settlement, it must be produced, ib. And affidavit made of no other settlement, ib. With certificate of counsel that settlement does not affect fund, wife consents to give to her husband, ib. Affidavit of wife sufficient where husband is resident permently abroad, ib. Or he refuses to make an affidavit, ib. Affidavit of solicitor sufficient evidence of no settlement where husband and wife are both resident abroad, ib. Examination of wife not dispensed with when it is proposed to pay fund with husband's consent to wife, ib. Unless she is entitled to fund to her separate use, ib.
affidavit of no settlement must be produced, ib. Variation of practice as to consent of wife. 526 Payment made to a married woman suing as a feme sole under a protec-

But

tion order,

ib.

But affidavit required as to continuance of separation, ib. Wife domiciled in country where husband is not obliged to make a

settle-

ment, cannot claim one, ib. And husband (not an alien) may elect to take land of wife directed to be
converted,
ib.

Exception when the wife

is a ward of the Court, ib. Discretion in Court, where lady was a ward, simply by payment of money to her account in Court, ib. As to proof of foreign law, ib. Consent of wife not requisite where the fund is under 200, or 10 a year,

527

But fund must be shown not to be Except where it is very small, ib.

in settlement, ib.

Separate examination dispensed with where husband consents to payment on his wife's receipt of fund not exceeding 500, ib. Practice in Ireland, ib. "Wife may claim a settlement though fund under 200, ib. Married woman cannot waive her right to take reversionary personalty by
survivorship,
ib.

Except

cases under Malins' Act, ib. Interest of wife cannot be accelerated, ib. An infant feme covert cannot give her consent, to
in

some

payment

to her husband,

ib.

Female ward of Court cannot waive her equity to a settlement, when, ib. Settlement made on infant ward on her marrying without consent or in
contempt of Court,
Settlement
ib.

favourable to husband than in ordinary cases, 528 Especially where he marries merely to get the ward's property, ib. Ward of Court married with consent of parent or guardian allowed dividends of fund until further order, ib. Or on coming of age to consent to her husband having her property, 528 Court cannot direct a settlement of infant not being award against her consent, ib.

much

less

6.

Equity to a settlement how defeated or barred. Wife's equity to a settlement will be defeated by payment to the husband or his assignees, ib. And they will not be restrained from proceeding at law, 529

560

INDEX.
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1125

paging refers to the [*] pages.]

EQUITY TO A SETTLEMENTcontinued.
But
t

trustees cannot safely pay the husband .-titer a bill filed, ib. Injunction granted t<> restrain husband from proceeding in tin- Ecclesiasil). Leal Court fur a Legacj I'.nt cannot lie granted now, Lb. Wile u.it entitled to, where her debts to a greater amount than her funds are proved against the husband in bankruptcy, ib. Seeus, if they are less, it). Wife's equity barred by an adequate settlement, ib. Or by express stipulation before marriage, though settlement inadequate, ib Though parties living apart, if adequate .settlement has been made. .">:;() \ It hough not by the husband, ib. Maybe barred by exclusion of fund from covenant by husband to settle, ib. By fraud of wile, when, ib. By her living in adultery, ib. Except under peculiar circumstances, ib. Even then husband not allowed to receive -whole of her property while he doesnol maintain her, ib. Not barred while both husband and -wife are living in adultery, ib. Nor in the ease of a ward of the Court, married without its consent although she alone be living in adultery, ib.
,

7.

Maintenance of wife out of her equitable property on refusal of husband

a settlement.

to

make

Maintenance, when, allowed to the -wife out of her equitable propertv. ib. refusing to make a settlement, Court retains fund, giving the wife the chance of survivorship, ib. Husband takes income when living with and maintaining his wife, ib. So when husband and wife are tenants by entireties of a fund, Payment to husband when he and wife, are tenants by entireties, good,

On husband

"::

when,
\ct,

il).

Whether tenancy by
1882, ib.

entireties abolished

by the Married Women's Property

Dividends paid to

-wife

Husband
long, ib.
'

refusing to

make

of lunatic husband, when, ib. a settlement not allowed to receive income,

when, ib. Maintenance allowed

to deserted wife out of her equitable property,

how
in-

And

out of her solvency, ib.

life

interest as against his assigness in

is

bankruptcy or

Not when husband is maintaining her though he Nor as against his assignee tor value, ib. Though husband 'afterwards becomes bankrupt
her, ib.

in difficulties. 532

or insolvent, or deserts

But allowed as against husband deserting his wife, out other equitable life interest not assigned by him for value, ib. Persons making advances to deserted wife reimbursed out of capital, when, ib. Husband compelled in equity to repay advances, ib. Maintenance no1 defeated by husband's fraudulent conveyance for payment
of bis debts,
.">:>:;

Separate maintenance not continued upon husband consenting to live with wife and use her kindly, ib. Husband leaving country in course of his duty does not desert his wife. it). Wife entitled to maintenance or settlement when husband's conducl renders her leaving him justifiable, ib. Separate maintenance out of life interest not allowed when wife has adequate provision already, ib. Or she has eloped and lives in adultery, ib.

* 36

WHITE OX EQUITY.

561

1126

INDEX.
[The paging refers to the
[]

pages.]

EQUITY TO A SETTLEMENTcontinued.
But husband not allowed the income,
ib.

Though the Court endeavours

to force husband to an agreement as to future support of his wife, 533, 534 Ricrht of husband entitled to wife's income by contract not affected when

her misconduct causes a separation, 534

8.

As

against

whom

equity to a settlement binding.

ib.

Binding against her husband, ib. His trustees in bankruptcy or under a general assignment, Against assignee of husband for value, ib.

Paramount

to right of executor or administrator to set off debt of husband, ib. ,. -,_ Settlement directed by Court, is for value good against creditors, ib. with trusto agreement pursuant husband, by made is settlement So if tees, 535 Or by payment of a legacy to trustees by request of husband, when, ib.

transfer to new trustees, ib. Secus, if husband made a settlement after he reduced fund of wife into possession, ib. See Resulting Trusts.

Or

EVIDENCE.

See

Advancement Resulting Trusts.

DEVISE,
10491051

EXCEPTION FROM A

distinction between and charge upon, See Resulting Trusts.

EXECUTED AND EXECUTORY TRUSTS.

Distinction between trusts executed and executory, 18 Executed trusts construed like legal limitations, 19 Executory trusts, according to intention of the author of the trust, ib. Trusts not rendered executory by a mere direction to convey, ib. Or to correct any defect or incorrect expression in a will. 20

Or
1.

to

form a settlement according

to testator's

meaning,

ib.

Distinction between executory trusts in marriage articles and wills, 20, 21 Executory trusts tinder marriage articles, 21

Rule in Shelley's case not applicable to, when, ib. Construction to be put upon "heirs of the body," 22
"issue," ib. "children," 23 "heirs female," ib. "heirs of the body" followed by limitations to sons and heirs male, ib. Rule in Shelley's case, applicable to, where the concurrence of both parents for issue, ib. is requisite in order to defeat the provisions Or where the parties made a distinction between limitations in strict settlement, and limitations leaving it in the power of one of the parents to bar the issue, 24 Words in articles strictly applicable to a joint tenancy, when decreed in equity to confer a tenancy in common, ib. Articles directing personal property of the wife to be settled on husband and wife during their lives, how carried into effect, 25
.

Informal articles, how carried out, ib. Construction of postimptial articles for a settlement
will, ib.

is

the same as in a

Agreement or covenant

to settle chattels, upon the same trusts as real estates in strict settlement, how executed, 25, 26, 27, 28 Declaration made by decree as to meaning of articles, to save expense of

settlement, 28

5G2

INDEX.
("The pnpinfr refers to the [] pases.]

1127

EXECUTED AND EXECUTORY TRUSTS

2.

continued.

Executory

trust in wills,

28

Intention that heirs of the body or issue should take by purchase must appear in the will itself, ib. What is a sufficient indication of such intention, 28, 29, 30, :!1 Where the trusts of land to be purchased are expressly declared, they will be construed in the same manner asat law, Construction of t lie words "issue." "heirs of the body." 32 "issue in tail male in strict settlement." 32, Limitations to trustees to preserve contingent remainders, when inserted, 33 Freehold vested in trustees, when, ib. Protector to settlement not appointed, 34 Direction to entail real and personal estate, how carried out, ib. To entail land in Scotland, ib. To settle lands to go with ancient barony, ib. a modern barony, ib. With shifting clause on attaining an earldom, ib. Gavelkind lands settled in tail according to rule of common law, 34 Where real and personal estate directed to be settled on same trusts, real estate not conveyed upon trusts for sale, ib. Will directing a settlement in words ordinarily creating a joint tenancy, how construed, ib. Land to be "secured" for benefit of "wife and children," how settled, ib. Word "family," how construed, 35 Jointure on second wife, when authorised, ib. Strict settlement directed of daughter's personalty without mention of children, how carried out, ib. May be extended to children if such appears to be the testator's intent, ib. Settlement of bequest to daughter decreed "independent of coverture, and added to money already settled," 36 General direction to settle bequest to daughters when void for vague'.',]

''''>

ness, ib.

Settlement on children of legatee when intent of testator was that they should take, ib. Life interest to husband, when given, 37 Ultimate trusts of settlement directed (excluding husband) how framed, ib. Settlement how made of fund bequeathed to a man until marriage, and after marriage to be settled on wife and children, ib. Settlement may be made by judgment, ib. Judgment must have usual settlement stamp, ib. Chattels given by will, with reference to the limitations of real estate in strict settlement, as far as the rules of law and equity will permit not executory, 37. 38 So chattels to be enjoyed with a peerage, ib.

Or

as heir-looms, ib.

And will vest in fust tenant in tail on his birth, 38 Though he die immediately afterwards, ib. And where the interest of the tenant in tail is contingent, when.
Of subsequent tenant
for life not indefeasible

ib.

during existence of prior

tenant for life, ib. Chattels directed to go to persons entitled to possession of real estate vest
in first taker, ib.

Whether he be tenant Or tenant in tail, ib.

real estate, ib. as heir-looms, ib.

for life, ib.

Unless there be intention expressed that the chattels are to go with the

Or

563

1128

INDEX.
[The pnging refers to the
[] pages."]

'EXECUTED AND EXECUTORY TRUSTS continual.

In last two cases the tenant lor life of the chattels arid first possessor of title will take only a life interest in chattels, ib. Chattels bequeathed as heir-looms on tenant in tail attaining twenty-one,

when they

vest, ib.

When

there is no limitation as to tenant in tail attaining twenty-one, 39 Intention that no person not entitled to possession of real estate shall take chattels, must be executed, 39 Mode of preventing separation of chattels and freeholds settled together, ib. Vesting of chattels must not be suspended so as to offend rule against perpetuities, ib.

prohibition of vesting till tenant in tail in possession attains twenty-one. ib. Gift of intermediate rents and profits immaterial, 40 Limitations in defeazance of absolute interest, with intent to secure devolution of chattels as heir looms must be certain, ib. And capable at any moment of ascertainment, ib. Direction that personalty shall not vest until tenant in tail by purchase
shall attain twenty -one, valid, ib. in tail" alone may mean tenant in tail by purchase, 41 Whether the words "as far as the rules of law and equity will permit" restain gifts within rule against perpetuity, ib. Will not make a trust of chattels executory, ib. May be referred to to show intention how far, ib. Settlement by which heir-looms are to go with a title, how moulded, 41, 42 Where leaseholds are devised upon trusts corresponding with estates in

As by the

"Tenant

strict settlement,

42
as heir-looms, ib.

Family jewels limited by executory trust

Execution of disentailing deed ofland will not prevent vestingof chatties, 43 Effect of bequest of chatties to executors as heir-looms to go with house under a deed of entail, non-existent, ib. Sale of heir-looms by tenant for life ofland under Settled Land Act 1882. ib. Doctrine of cy-pres as applicable to executory trusts, 43, 44
3.

When

What powers or provisions will be inserted by the Court in settlements, 44 usual or proper powers are in articles or in will directed to be in-

serted in a settlement, ib. Direction to insert powers may be implied, 45 None formerly inserted unless there is some direction, ib. Except perhaps a power of leasing, ib. But in recent cases powers more readily directed to be inserted in settle-

ments, ib. Usual powers directed to be inserted in settlement of real and personal
estate, 45, 46

Though

testator gave no direction as to powers, ib.

Powers ordered by Court, under a covenant to settle after-acquired property (land) upon the same trusts as personalty, 46.

Power to wife to give life interest in her settled property to her husband, Power to appoint by will in default of issue, ib. Hotch-pot clause, when inserted, ib.

ib.

What

Where

provisoes will be inserted in leases, 46 tenants for life of settlement are to be made not dispunishable for waste, 46, 47, 48 Powers conferred under Lord Cranworth's Act, 48 Under other Acts. ib.
'

4. Rectification

of settlement, ib.
!!

By will, 48, By marriage

articles, 49 Informal superseded by formal document before marriage,

ib.

561

INDEX.
[Tho pn^inp refers
to tho

1129
fl papes.]

EXECUTED AND EXECUTORY

TRUSTS-^ontfrnted.

Evidence of mistake how far admissible, ib. Mistake must be common to both parties, i'>. Evidence of, must be contemporaneous with deed,

ib.

Or anterior
Caution

thereto, ib.

in rectifying marriage settlements, ib. Improper settlement made by party undertaking to make a proper one rectified, when, 50 Marriage settlement in improper form rectified, how, ib As to eases where Court has rectified settlements, ib. Where it has refused to do so, ib. Ante-nuptial settlement rectified by articles, when, ib. Distinction between settlements made before and settlements made after

marriage, 51 Settlement not rectified by its own recitals, when, ib. Post-nuptial settlement rectified on proof that the articles were not according to the intention of the settlor, ib. Semble, voluntary settlement not reformed as against the grantor, ib. Nor as against purchasers for valuable consideration without notice, ib. Secus, if with notice, ib. Re-conveyance sometimes directed, 52 Set lenient sometimes rectified by decree without deed, ib.
I

Even upon

petition, ib.
ib.

And upon

uncontradicted evidence of plaintiff alone,

EXECUTION CREDITOR.
May

See Creditor. purchase property seized under an execution, 205

See

EXECUTOR AND ADMINISTRATOR.

106.

Constructive Trusts.

Executor, renewal of lease by, 54 How far purchasers from are bound to see to application of purchase-money.

Charge of Debts. See Application- of Pubchase-Money, 2. charge of debts authorises sale of real estate by, 95 104 Executors or administrators, cannot purchase the assets, 197

How

far

Either immediately,

ib.
ib.

Or by means of a trustee, Or a legacy, ib. Even from a co-executor, And if they buy in debts

ib.

or mortgages for less than is due,

ib.

it

will be for

the benefit of the estate,

EXECUTOR AND ADMINISTRATORcontinued.

Semble, executor
107

who

has not proved

is

not under a disability to purchase,

Lease granted upon the advice of executor by his cestui que trust soon after coming of age to parties with whom he became partner, set aside. 206

EXECUTOR DE SON TORT,

Renewal of
lease by. 55
-See

EXE< TT< >RY TRUSTS.

Executed and Executory TbuSTS.

EXEMPTION OF PERSONAL ESTATE FROM DEBTS.

Primary liability of personal estate for the paymenl of debts, 739 Unless exempted by express words or manifest intention, ib. Where by express words, il). Not essential that personalty exempted should be specifically bequeathed, ib. May be undisposed of and fall into residue, ib. If debts thrown OH a third fund, personalty exempted from debts cannot be called upon until all other funds exhausted, ib. r paymenl Primary liability of personalty remains, if land simply given of debts is insufficient, when, 730, 710
f<

565

1130

INDEX.
[The paging refers
to the

f] pages. ]
ib.

EXEMPTION OF PERSONAL ESTATE FROM DEBTScontinued.

Residue primarily liable
if land

and residue are given exempt from debts,

liability of personalty exempted by manifest intention, ib. Onus of showing lies on those claiming exemption for, ib. charge upon land will not exempt the personal estate, ib.

Primary

Nor a direction to sell for payment of debts, ib. Nor a creation of a term, ib. Nor will a devise upon condition of paying debts, 740 Parol evidence not admissible to show the testator's intention, ib. No inference of intention drawn from the relative amount of personal estate and debts, ib. Or from gift of real and personal estate together, ib. If proceeds of real estate and personal estate be given for payment of debts
they contribute rateably, 740, 741 Also legacies so charged rateably, 741 Or where realty is directed to be converted and form part of the personalty, ib. Primary liability of personalty to legacies not disturbed by legacies becoming by implication a charge on residuary real as well as personal estate, ib. Rule of rateable payments applicable where payment directed to be made out of rents and profits of an aliquot share of real and personal estate, ib. Income of personalty primarily liable if surplus of real and personal estate be given to trustees, to invest and accumulate, when, 742 Secus, if surplus be not disposed of, when, ib. Will not arise from a mere charge of funeral or testamentary expenses, or both, in addition to debts upon real estate, ib. Secus, by a charge upon the real estate, of all the burthens which naturally fall on personalty, ib. Distinction between a mere residuary bequest and a gift of all the personal
estate, ib.

Real estate primary fund for debts where personalty given as a whole and there has been a charge of the debts and funeral and testamentary expenses on real estate, ib. Also in same manner for payment of legacies, 743 Particular real estate when primary fund for payment of debts, ib. Not when personal estate is also charged with their payment, ib. Does not arise by being expressly charged with some debts to which it is primarily liable, 743, 744 Nor by a bequest of all the personalty, though lands are devised in trust for payment of debts, 744

At any

rate where legatee of personalty is also executor, ib. seems when legatee is not executor, 745 Omission to charge funeral and testamentary expenses on land, argument

And

it

against, ib.

Testator may remove primary liability to another fund, ib. Particular estate may be made secondary fund in, 745, 746 Debts and ordinary legacies thrown on land and impure personalty to leave pure personalty for a charity, 746 In favour of legatee will not extend to next of kin taking in consequence of a lapse, 747 Secus, where personalty exempted has not been bequeathed to anyone, ib. Inference of, does not arise from appointment of executor, entitled to personal estate by his nomination, there being no residuary bequest, ib. Though debts and funeral expenses are thrown on land, ib. Nor where executor is trustee for next of kin, ib. Secus. where personalty expressly exempted and any other fund provided,
747', 748 Personal estate primarily liable where gift of legacy or annuity is followed by a charge on real estate, 748 Even where annuity is charged on land with powers of distress and entry, ib.

566

INDEX.
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to tho [] pages.]

1131

EXEMrTION OF PERSONAL ESTATE PROM DEBTS

-continued.

Personalty the primary fund for payment of Legacies when eharged generally on land, ib. Or then: has been a devise in trust to pay Legacies generally, il>. Secus, where intention appears to make another fund primarily liable, ib. Real estate liable when devised upon trust to pay particular sums to legatees, ih.

Personal estate not liable even on deficiency of real estate, ib. Even though there be a direction that personal estate should be applied in payment of legacies in exoneration of real estate, ib. Such sums adeemed on sale of estate by testator, ib. Where legacy is demonstrative, fund pointed out for its payment primarily
liable,

749

On

legacy payable out of general assets, ib. Real estate primarily also liable when devised upon a trust to raise a particular sum for payment of debts, ib. Or to pay a particular debt, ib. Secus, according to some cases unless debts were already a charge on land
its failure

ib.

Unless testator has imposed payment thereof as a personal obligation on

devisee, ib.
liability of land when debt is already a charge on the land, ib. the estate is devised in trust for sale and payment thereof, ib. Or there is a declaration that mortgagor's debt is to be a charge thereon, ib. Unnecessary since passing of Locke King's Act, 750 So where a speciiic personal fund is subjected to charges, otherwise falling on general personal estate, it is primarily liable, ib. Except when residue is undisposed of, ib. When particular fund for payment of debts is insufficient, other property See Exonekatiox. will be applicable in the usual order, 750, 751.

Primary

And

EXONERATION,
1.

Law
751

as to, altered

by Locke King's

Act,

amended by subsequent

statutes

Precious to that Act personal estate primarily liable to pay the mortgage debt of a deceased person, contracted by himself, 752 Whether the land devolve upon heir-at-law or devisee, ib. Unless, in the case of a devise, it was the testator's intention that the land be taken cum onere, ib. Devise or charge for payment of debts generally will not render real estate the primary fund for their payment, ib. devise of land charged with, or in trust to sell for payment of a mortgage debt, sufficient to exonerate personalty, ib. Or where estate is devised to a person conditionally on his paying the

mortgage,

ib.

not where estate is devised subject to mortgage, ib. Devise of two estates subject as to one to part of a mortgage, and as to another to another part, determines only the proportions in which estates were to bear mortgage, ib. Principal ease distinguished, ib. Vendor's lien a personal debt of the purchaser. 753 Heir and devisee (prior to recent legislation) entitled to exoneration,

But

when,

ib.

Where purchase money payable payable Or by way of annuity for life. ib.

in a gross

sum,

ib.

Legatee of specific chattel entitled to exoneration, ib. Mortgage or charge to secure portion or jointure not entitled Unless lirst secured by a covenant creating the debt. 751 Nor charge bv tenant for life under a power, ib.

to, ib.

507

1132

INDEX.
[The paging refers to the
[']

pages. ]

EXONERATION continued.
Held inapplicable to a loan on South Sea stock, 754 "Where mortgage debt is not the devisor's or ancestor's own debt, the mortgaged estate will be primarily liable; ib. Unless the debt has been adopted by him, ib. What acts do not amount to an adoption of the debt, 755 Entering into a covenant for payment on a transfer of the mortgage will
not amount to, ib. Nor the execution of a bond, ib. Nor obtaining a small further advance, although additional

security be

given for the whole, ib. Nor a transfer with a new proviso for redemption, ib. Nor a covenant to pay a higher rate of interest, ib. Nor obtaining an additional advance to pay off arrears of interest and simple contract debts of person from whom estate came, ib. Nor a mortgage of lands to pay debts and legacies of ancestor or devisor, ib. A charge of land with debts not an adoption of mortgage debt of ancestor
or devisor, ib.

Nor the purchase of an

debt, ib.

Though purchaser covenants

estate subject to a mortgage. 756 or agrees with vendor to pay the

mortgage

Nor where two persons buy an estate subject to a mortgage, ib. Though each covenants to pay his proportion of debt, ib. Mortgage debt will be adopted where owner adds to it mortgages of his own and renders himself liable for aggregate sum, ib. Where purchaser of equity of redemption covenants to pay mortgagee, and
there is a new proviso for redemption, ib. Purchase of an estate subject to a mortgage does not render personal estate of purchaser liable, 757 Secus, where the charge is part of the price, ib. Mortgagor aliening estate not presumed to intend to pay mortgage out of

Nor

his personal estate, ib. if he settles estate on volunteers, ib. Especially if in either case it be made subject to mortgage, ib. Unless contrary intention indicated, ib. And he would be creditor for the whole or part of the mortgage if he paid
it,

ib.

Unless he showed that he intended to do so in case of the real estate, ib. Covenant in settlement may show his intention to render his personal estate primarily liable, ib. Conveyance by heir of the mortgagor and the mortgagee of part of the estate to a fresh mortgagee an original mortgage, when, 757, 758 Portion adopted as debt by a covenant to pay, and to convey estate discharged thereof, ib. Devisee presumed from his acts in pursuance of a will to have adopted
debt, ib.

On
<

death of person who was the heir or devisee of mortgagor and also his ecutor and residuary legatee, debt a primary charge on the real

estate, ib.

Such person being considered

to have elected to continne mortgage as a charge, 057, 658 Secus, on the death intestate without taking out letter of administration, of the person who became entitled to the real and personal estate of the

2.

As to the Primarv

mortgagor, on his death intestate, 760, 761 (('feet of lapse of time upon the claim to. 761 liability of personal estate to exonerate mortgaged estates taken away "by Locke King's Act (17 & 18 Vict. c. 113), 761. 76-2 But law remains unaltered as to mortgaged property, not being "'any estate or interest in any land or other hereditaments," 762

568

INDEX.
[The pacing refers
to the [] pages.]

1133

EXONERATIONcontimu d.
Copyholds and freeholds are within Act, il>. Not leaseholds for years, il>. Extended to lands of all tenures by 40 & 41 Vict.
c.

34, ib.

Mere chattel not within the Act, Lb. Lands devised upon trust for conversion not within the Act, when. Lb. Act only applies where there Ls a denned charge on a specified estate, ib. Applies to equitable mortgage of freeholds by deposit, Lb. But not to vendor's lien, ib.

Made

applicable under 30

&

::i

Vict.

c.

G9, ib.

But not to vendor's lien on land purchased by an intestate, 763 Extended therein by 40 & 11 Vict. C. 34, ib.,*765 Act applies in favour Oi the Crown claiming personalty for want of next
of kin, 763 Proviso to act not applicable to heir taking by descent -when, Lb. Though he takes in consequeuce of a lapse in a will made before
1855,
il>.

Jan.

Applies to devisee when,

ib.

Meaning of ''contrary or other intention" under Locke King's Act, 763 Examples of, ib.

Where contrary intention shown, Where not shown, 764 Locke King's Act amended by 30
by 40

763, 764

& 31 & 41

Vict. Vict,

c.
c.

69, ib. 34, 765

to a declaration of intention under botb Acts extending the rule of Locke King's Act, 766 Must unmistakeably refer to the'mortgage debts, ib. Mere direction to executors to pay all just debts not sufficient, Lb. Or even to pay all just debts out of personalty in exoneration of real estate.
ib.

What amounts

Direction that specifically devised lands are to be exonerated by conversion of residuary real and personal estate, does not exclude operation of the Act on the residuary real estate, ib. Charge of debts on part of a testator's real estate in exoneration of the rest, not a sufficient expression of intention against the rule in Locke King's Act, ib. If the debts lie not specially referred to, ib. And although the charge is in aid of the personal estate, ib. Locke King's Act not intended to apply, between specific and residuary
devisees. 767

Order

in

which

assets are applicable in the exoneration of

mortgaged

es-

tates, ib.

the mortgaged estate is devised, 767, 768 it descends to the heir, 7(i! Freeholds mortgaged together, on death of mortgagor going to different devisees contribute rateably, ib. Freeholds and leaseholds mortgaged together, if not exonerated, contribute rateably, ib. Also further security for original and additional debt, 770 Mortgagor may declare primary liability of one estate, ib. Expressly, ib. Or by implication, ib. Statement in a second mortgage that other property is a collateral security not sufficient to throw primary liability on tirst mortgage, il>. Nor the fact of devising part of mortgaged estate, and including the rest in a residuary devise, ib. Specific and residuary devises (both being considered specific contribute rateably, ib.
1st.

When

2nd.

Where

509

134

INDEX.
[The paging refers to the
[*]

pages.]

EXONERATION-continued.
Party seeking contribution from another property must show each equally
liable inter
se,

771.

Under Locke King's

Act, in the absence of contray intention, land in mortgage must bear its own burthen, ib. If substituted fund insufficient, deficiency must be borne by mortgaged
estate, ib.

exoneration cannot be claimed out of assets, as under old law, ib. Election of mortgagee to come upon personalty will not determine fund ultimately liable, as doctrine of marshalling would be applicable, ib. Debt by mortgage payable now as a speciality only pari passu with simple contract debts, 772 How mortgagee may prove under the Judicature Act in an administration
suit, ib.

And

In the winding-up of a company, ib. Administration of an estate of a person dying insolvent in bankruptcy,

ib.

EXPECTANTS,
Purchases from, 675.
Sec

Catching Baegains.

FICTITIOUS PERSON, Purchase in name of,

FIDUCIARIES,
Purchases bv,

254
fictitious credits, ib.

For the purpose of giving

See

RESULTING TEUSTS.

when

set aside, 174.

'

See
*

Teustee.
to, 406.

FORFEITURE,
Persons electing to take against instrument not subject

pensation

Election.

See

Com-

FRAUD ON MARITAL RIGHTS,

Settlement made during treaty of marriage, without' notice to intended husband, will be set aside, as a, 479, 480 But not if the husband was not, or is not proved to have been, the intended husband at the time of the execution settlement, 480 Actual fraud in woman holding out herself as absolutely entitled to property which she afterwards settles, ib. Concealment of property, and settlement made during treaty for marriage, a fraud on husband, 480, 481, 482 Semble, settlement not rendered valid by its being in favour of meritorious objects, as children by a former marriage, 4*2 Gift or settlement will not be set aside, if husband is aware of it previous to marriage, 483 Or, semble, if not being aware of it, he has seduced his wife previous to marriage, ib. Concurrence by husband in a settlement, will preclude him from disputiug
it,

ib.

But not. it seems, if he were a minor at the time, ib. But he could not reject in part and take in part, ib. Not bound by inaccurate iniormation as to nature of the settlement by
wife, ib.

his

if he afterwards acquiesces in or confirms it, 484 Short delay no bar to the husband, ib. Representatives of husband have no equity to set aside a settlement, ib. Security by wife, prior to marriage, set aside if voluntary, ib. But not if for valuable consideration, ib. Secret settlement by a woman under treaty for marriage not void at law before Judicature Acts, ib.

Bound

570

INDEX
[The
p.ifing refers to the []

1135
pages.]

FRAUD OX MARITAL RIGHTScontinued.

Doubtful whether equity will interfere with regard to secret acts of husband before marriage to deprive wife of dower, ib. Semitic, may be committed by woman about to marry availing herself of powers conferred by the Married Women's Property Act, 1870, 485 Cannot be enforced since Married Women's Property Act, bS-'li, ib.

FRAUD UPON A POWER,

Principle upon which the Court acts in setting aside, 44:;. Fraud upon a power of jointuring, where the husband advances money to increase his power, 444 Or appoints jointure on a contract partly for his own benefit, ib. Jointure affected to the extent of the fraud only, ib. Appointment to child iu consideration of mother postponing jointure to
1 1

mortgage, void,
appointor for his

ib.

Fraud upon power of appointing amongst children, upon a bargain by the

own advantage,

ib.

As that child should assign part to a stranger, ib. Or pay a sum to a person not an object of the power, 444
Pay
father's debts, ib.
is in payment of a debt, ib. Or upon arrangement to lend part to the father, ib. Or to purchase the life interest of the appointor, 445 Appointment invalid as, although it be not for the advantage of the appointor, if not bona tide, ib. Valid appointment rendered invalid by ah arrangement that a party not an object was to take an interest, ib. Although objectionable arrangement be not made known to appointee, ib. Even although appointor was by voluntary deed donor of the power, 11(1.

When appointment

447

Burthen of proof lies upon person seeking to prove fraud, when, 447 Mere circumstance of anger and resentment in the execution of a power
not adverted
to,

448

Burthen of proof altered by circumstances, ib. Proof required, on a second appointment after first being set aside as a, ib. Rule the same where fraudulent appointment has been revoked by the appointor,
ib.

Appointment made

Though appointee

for the purpose of a marriage settlement, valid, ib. settle upon persons not objects of the power, but within
ib.

the marriage consideration,

As upon the intended husband and

children of the marriage,

!!

And though intended husband may give up something to the appointor when. ib. Execution of power to jointure, valid, although made by tenant for life on
his death bed, 450

And though

the remainderman had refused to charge the estate with the debts of the tenant for life, Lb. Appointment with the object of improving the subject-matter, valid, ib. Though the appointor may to some extent participate therein, ib. Appointment under an agreement to settle upon persons not objects of the power nor within tie consideration of marriage, invalid, 1~>1
t

Appointment to object of the power absolutely valid, ib. Secus, if on trust for the donee of the power, ib. Or to effect objects not within the power, ib. Trustees paying fund to parties taking under a, are compelled to replace
it,

ib.

Trustees liable to costs on raising captious objections to appointments and declining to transfer, ib. A fortiori if influenced by corrupt motives, ib.

571

1136

INDEX.
[The paging refers to the
[*]

pages.]

FRAUD UPON A POWERcontinued.

Supported by Court when acting bona fide, ib. Fraudulent appointment, how far void, ib. In the case of a power to jointure, ib. of a power to appoint to several objects, 452 Distinction by Sir IF. Grant between power to appoint a jointure and a power to appoint to children, 452, 453 Fraudulent appointment to several objects set aside generally in toto. 452, 453 Secus, where authorised purpose in an appointment can be severed from unauthorised purpose, 453 One of two contemporaneous appointments to children may be valid. though one corrupt, ib. If it can be severed, ib. Appointment in fraud of a power, set aside as against purchaser for valuable consideration, with notice, ib. Or without notice, if the purchaser has only got an equitable interest, ib. Actual notice, and not mere grounds of suspicion, are necessary in order to affect a purchaser, 454
Effect of lapse of time, ib.

"Where a parent executes a power, all the children may, by arrangement, agree to give an interest to the parent, 455 And by a family arrangement, persons not objects of the power may take under a settlement, ib. Secus, unless it appears to be a bona fide family arrangement, ib. Appointment to child with unauthorised condition attached, is good, ib. But the condition is void, ib. Parent not allowed to raise portion for a child not in want of it, and notlikely to live so as to take as administrator of the child, ib. Especially if child in default of appointment was entitled to portion on attaining twenty-one, 456 Or on marriage under that age, ib. Hinchinoroke v. Seymour, 1 Bro. C. C. 394, correctly stated by Jessd. M.
R.,ib. Portions charged on land vested under a power bona fide raisable. though children die before wanting them. 457 And appointor takes incidentally as their administrator, ib. Charge on land in favour of a person dying before it is vested, not raisable, 459 Comment on judgment and decision of Lord Thurlow, in Lord Hinchiribroke v. Seymour, 1 Bro. C. C. 395, ib. Result of the authorities on vesting by Lindley, L. J. ib. Appointment ot sum already set apart not invalid merely because parent may take in event of child's death, 460 A fortiori where father can take nothing, ib.

Though mother may, ib. Advancement under a power by sion to enable him to sell it, is,
Secus, where purchase bona fide
ib.

trustees to infant to purchase a

ib.

commis-

made though

sale afterwards takes place.

Bargain on appointment by a father to derive a benefit out of fund unappointed, invalid. 460, 461 Inseparable condition not authorised by power fails entirely if inseparably attached to gift, 461 Power to appoint amongst children may be released by tenant for life, 462 May covenant with mortgagee of life interest not to exercise power of charging, 462 Or with creditors to make an appointment in favour of a child, ib.

572

INDEX.
[The pafjinp refers to the
[]

1137
pages.]

FRAUD UPON A POWERcontinued

Father cannot release power so as to vest property intended for his children in himself, ih. Scnis. in the case of liis mortgagees, 463 Appointment set aside when necessary consent t" ii obtained by fraud, ib. Or is given fur the mere purpose of putting money into the hands of the father, 163, 464 Whether appointment set aside as fraudulent can be again exercised, 164 Whether appointment to be exercised by will only, is valid, if exercised by will pursuant to a covenant, ib. See Illusory Appointment

FRAUDS, STATUTE OF,

Agreement
to tion, not within,

purchase lands in partnership for the purposes of specula229

Resulting trusts not within. 249. ment Secret Trusts.

& PAKT Performance

of AGREE-

GRAFT.

See

Constructive Tkusts.

GUARDIAN AND WARD.

Purchase,

Purchase by guardian ol ward's estate on his coming of age, improper, 206 by guardian acting as receiver of ward's estate, sold under de-

See Trustee Infant. cree, set aside, ib. If he buys up incumbrances on the ward's estate, he will be trustee of them for his ward, ib.

HEIR-LOOMS.
Limited by executory trust with reference to real estate in
ment,
:;7.

strict

settle-

38, 39, 40, 41

Family jewels limited by executory trusts as, 42 Sale of, by tenant for life under the Settled Land and Executory Trusts. Specific delivery up of, 963

Act, 43.

See

EXECUTED

HEIRS.
^Yhen put to election, 417, 418, 419. See Election. Purchases from expectant, G75. See Catching BARGAINS.

HUSBAND AND WIFE.

ti.ement

See Fraud ox Marital Rights Separate Use.

Advancement Election Equity to aSet-

ILLUSORY APPOINTMENT.
What amounts to, 465 Share not illusory, coming to an object of the power in default of appointment, good, 466 Doctrine of, applicable to real and personal estate, lb. Unauthorised exclusive appointment may be rendered validity partial failure as a fraud on the power, ib. Last of illusory appointments only void. when. ib. Tenant for life in the exercise of powers under tin- Settled Land Act. 1882,
held a trustee,
ib.

Illusory appointment not rendered justifiable by misbehavior of child. I<i? But it may be byr other circumstances, as where child is an uncertificated

bankrupt,

ib.

a provision from the donee of the power, ib. Or, it seems aliunde, ib. But not where provision has moved from the donor of the power, ib. Equitable rule as to illusory appointments abolished by the Illusory Appointments Act, ib. Clause recommended by Lord St. Leonards, where donor wishes all objects to have substantial share, 468 Act has a retrospective operation, when, ib.

Or has had

573

1138

INDEX.
[The paging refers to the
[*]

pages. ]

ILLUSORY APPOINTMENTcontinued.

Does not make valid exclusion of objects of a power not authorising exclusive appointment, ib. By 37 & 38 Vict. c. 37, such exclusion made valid, 469 Unless instrument creating power should declare amount from which no object should be excluded, 470 Or some one or more of the objects should not be excluded, ib.
See

ADEQUACY OF CONSIDERATION.
Incapable of purchasing what, 207

Consideration.

INCLOSURE COMMISSIONERS,
INJUNCTION,
Account for waste, how JOINT PURCHASERS,
far incident to, 870, 871.

See

WASTE.

Purchasers taking a conveyance to themselves and their heirs, joint ten-

And

ants at law, 221 in equity, unless the rule of law tion of the parties, ib.

is

controlled

by the presumed inten-

Where purchase-money

is advanced in equal proportions, purchasers will be joint tenants, 222 Strong leaning in equity against joint tenancy, ib. Au unequal advance of the purchase money will create a tenancy in com-

mon in equity, ib. Where advance is equal,

circumitances may show an intention to create a tenancy in common, 223 Parol evidence of circumstances admissible, ib. But not of statements of intention, ib. Whether the proportions are equal or unequal, there will be a tenancy in common, of money advanced upon mortgage, 223 Personal representatives of deceased mortgagee necessary parties to a bill
of foreclosure,
ib.
ib.

Or redemption,

Necessary parties to a receipt for mortgage money, ib. Though legal estate be in surviving mortgagee, ib. Clause that receipt of survivor shall be sufficient inserted in mortgage
Object of clause effected by sect. 61 of the Conveyancing and Law of Property Act, 1881, 224 On purchase of foreclosure of equity of redemption, joint-mortgagees held to be tenants in common, ib. Payment to one of two trustees of a bond formerly binding at law, ib.
Secus, in equity, ib. Equitable rule now prevails, ib. Persons purchasing for a joint undertaking or partnership, tenants in common in equity, 225 Rule of survivorship established in favour of merchandize, ib. Afterwards extended to joint-undertakings in partnership and trade, ib. Partnersof a lease taken to farm the land, tenants in common inequity, ib, Survivor trustee for the representatives of the deceased partner, ib. Result the same when two persons take a lease of land for building houses,

deeds, when,

ib.

226

Though conveyance be taken

property, 227, 228

in the

name

of one of the partners, 227

But partner may by his conduct be held to have repudiated contract, ib. Whether property purchased with partnership assets is joint or separate

Where property has been

left by will to persons jointly, partnership purposes, they will be joint tenants, 228

who

use.it for

574

INDEX.
[The pdginfr refers
t" the [] pages.]

1139

JOINT PURCHASERScontimu d.
Unless a Beverence of the joinl tenancy can be inferred, ib. Partnership agreemenl lor baying and selling land proved by parol,
See
:.'.'!.

Conversion,

Feauds, Statute

or.

JOINT TENANCY.
Words applicable to, construed articles, when, 24
as creating tenancy in

common

in

marriage

In will directing a settlement, ordinarily creating a joint tenancy, construed, 34. See Joint Purchasers.

how

JUDGE,
Judgement
of,

where he has

interest in subject of suit, set aside, 204

LEASE,
Renewal of, by trustee, 54 Trustee cannot take from himself, 177.
sTBUcrrvE Trusts.
See

TrusteeStewartCon-

LEGACY DUTY.
LIEN.
See

See

Conversion.

Vendor's Lien Vendee's Lien

See

Marshalling.
See

LUNATIC.

Conversion

Election.
530.

MAINTENANCE,
Of wife out of her equitable property,

Equity to a Settlement.

MARRIAGE ARTICLES,
Construction
of,

21.

See

Executed and Executory Trusts.

MARSHALLING,
lien and estate of the vendee, .386 In favour of simple contract creditors and legatees, where the purchased estate decends, ib. Butsemble in favour of simple contract creditors only where it is devised, ib. Not in favour of legatees, ib. Inapplicable to simple contract debts in cases within 3 &4 Will. 4. c. 1, ib.

Between vendor's

Paraphernalia. See Marshalling, vol. ii. MINES, when opened, accounts granted, though no injunction Waste.

asked, 871.

See

MISTAKE,
evidence admissible to show, in order to rectify settlement, 49 But mistake must be common to both parties. See EXECUTED

AND ExConver-

ecutoey Trusts,

MORTGAGE,
Primary fund

sion Equitable Mortgage Exoneration.

for

payment

of,

on death of mortgagor. 751.

See

MORTGAGEE,
Renewal of lease by, enures for benefit of mortgagor, 60 With power of sale, cannot purchase the mortgaged estate, 187 Except by express authority of the mortgagor, ib. Set Tacking Trustee.

May

purchase equity of redemption from mortgagor, 188 prior mortgagee, ib. Although mortgagee with trust for sale, ib. But not from trustee for sale for mortgagor and mortgagee, ib. Transactions of. with mortgagor viewed with jealously, ib.
Sale to, set aside in cases of undue influence, ib. Or less given as a price than would have been given by others, ib. Or there are other circumstances of misconduct, ib. Lease from mortgagorto uuderdistresseu circumstances, may beset aside

ib.

575

1140

INDEX.
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[*]

pages. ]

MORTGAGOR,
Renewal of

May

lease by mortgagee, enures for benefit of, 60 grant lease to trustee for himself under power reserved until entry by mortgagee, 205

ORNAMENTAL TIMBER.
PARAPHERNALIA,
What
constitute, 621

Sec

Waste.

Cannot be disposed of by wife during the life of her husband, May be disposed of by husband by act inter vivos, ib.

ib.

Not by will, ib. But wife may be put to her election with regard to, ib. Given to wife by husband after marriage liable to his debts, Widow's claim to, preferred to general legacies, ib.
Marshalling
for,

ib.

as against heir, ib.

Wife entitled

to

have redeemed when pledged by husband,

ib.

ib.

Even
Right

to prejudice of his legatees, 622

to,

barred by settlement,

By non-claim when bequeathed

to her for life, ib.

Articles ordinarily constituting, when given by relatives or friends considered as given to her separate use, ib. And she may dispose of them as a feme sole, ib. And they are not liable to the debts or disposition of her husband, ib. Husband may give ornaments absolutely to his -wife, and not merely for the purpose of being worn, 623 Distinction between such gifts to separate use of a married woman, and as

mere paraphernalia,

ib.

PARTNER,
Renewing Employed
A< 3 e'xt

Constructive TrustsTrustee.

lease is trustee for the firm. 58, 59 to purchase, cannot sell his own goods to the firm, 195.

See

Nor a co-owner of ship acting as ship's husband, 195 Nor can a solvent partner of a coal mine purchase share of insolvent ner concealing knowledge of a seam of coal, ib. Even though sale were on an execution, ib. Cannot carry on business of otherwise than for benefit of firm, 196
Either in his own name, ib. Or the name of another, ib.

part-

Deriving profits from separate trade, not within scope of partnership, not

But may be

liable to account, 197 liable for a breach of contract, ib.

Surviving may purchase share of deceased partner, ib. Not having conduct of sale of partnership effects will alone have leave to bid by Court, ib.

PARTNERSHIP CAPITAL,
Purchases of land with. 230.
See

Conversion,

2.

PART OWNER OF

SHIP,

Not entitled to use ship for his private trading, 196 Must account for profits, ib.

PART PERFORMANCE OF AGREEMENT,

Takes a parol agreement
884, 885
for

purchase of land out of Statute of Frauds.

Principle on which Court proceeds, 885 What are acts of part performance, ib. Acts merely introductory and done previous to an agreement, not acts of part performance, ib. Nor subsequent acts if merely ancillary to agreement, 886

576

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1141

PART PERFORMANCE OF AGREEMENTcontinued.

As delivery <>i' abstracts, Lb. Orders to draw and endorse conveyances,
ib.

Instructions for a lease, ib. Viewing or measuring an estate, ib. Employing surveyors or appraisers to value timber thereon,

ib.

Or

stock, ih.

Appropriation of

money

for purchase, ib.

The

release of a right from a third party for value in

pursuance of the con-

tract, ih.

Whether signature of a written document is. ib. Payment ol part of the consideration money is not, ib. Nor even of the whole, il>. Nor of the auction duty, ib. Admission imo possession, having reference to the agreement, an
part performance, ib.

act of

fortiori, if the purchaser has laid out money in buildings or improvements, B8't Acts of pari performance must be referable to the agreement, ib. Possession must not have been obtained wrongfully, ib. Allowance by owner of stranger to remain in possession maybe an act of, 887 Mere continuance in possession by tenant not an act of, ib. Possession an act of part performance in case of sales, 888

Leases,

ill.

Other contracts when, ib. Family arrangements, ib. Acquiescence in possession, consequence

of, as affecting the setting up of the Statute of Frauds, ib. Effect of plaintiff having, subsequently to institution of suit, obtained an Act of Parliament to quiet possession, ib. Laving out of money by stranger entering into possession, when an act of,

ib.

payment of an increased rent by a continuing tenant referable to agreement, ib. The laving out of money in improvements by a continuing tenant an act of, when, 889 And proof of additional terms by parol to written agreement not precluded, 889 Acts of by sub-lessee, 890 The laying out of money must not be of an equivocal character, ib. Semitic, not material that the act of part performance easily admitted of compensation, ib. Surrender of lease held in Ireland to be an act of, when, ib.And a dissolution ot partnership and release of retiring by continuing
Effect of

partners, 891 Parol agreement must be such, that if in writing specitic performance thereof would be decreed, ib. Want ot writing not being aground of jurisdiction, 890 And the obligation must lie of legal character, ib. Not purely a matter of honour, ib. Case of mutual wills, ib. Agreement must be complete. 892 Terms must be certain and unambiguous, ib. Companies and corporations, bound by acts of part performance, ib. Purchase at sale by auction not binding without agreement in writing, ib.

Or

in bankruptcy, ib. Receipt or entry by auctioneer Frauds, ib. * 37 WHITE ON EQUITY.

when

memorandum

within Statute ot

577

1142

INDEX.
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PART PERFORMANCE OF AGREEMENT continued.

Sale before Master in Chancery not within the Statute, 893 Nor semble a sale under the present practice, ib. Purchaser taking possession of lot, and cutting crops, held to do acts of, ib. Acts of part performance as to one lot, not applicable to another, ib. Doctrine of part performance not to be extended, ib. Not applicable to a lease by consent in writing of a married woman, when such consent not obtained, ib. Remainderman not bound by parol agreement of tenant for life to grant a lease under a power, though coupled with acts of part performance by tenant, ib. Unless remainderman acquiesced in the part performance, ib. And was aware of the agreement, ib. Or lay by and allowed expenditure by lessee after death of tenant for
life. ib.

not affected by the Leases and Sales of Settled Estates Act, ib. Or by the Landed Property (Ireland) Improvement Act, ib. Acts of part performance of a parol agreement for a family arrangement
effectual, ib.

Law

Marriage not an act of part performance, 894 Parol contract taken out of the Statute by acts of part performance independent of the marriage, ib. Parol agreement of wife to convey lands of which she was seised in fee, (not to her separate use) to her husband not rendered binding by his
acts, of, ib.

Representations upon the faith of which marriage has taken place when made good, 895, 896 Return to cohabitation may be a sufficient act of, 896 But doctrine not applicable to contracts of service, ib. Contract taken out of statute when provisions of have not been complied with by reason of fraud of defendant, 897 As by his fraudulently preventing execution of a deed, ib. By fraudulent non-execution of a defeazance to deed, ib. Or a fraudulent omission of a defeazance in a deed, ib. On admission of evidence absolute conveyances reduced to mortgage, ib.

Or charge,

ib.

Parol evidence in support of variation in written contract supported by

acts of, ib. Secus, if without such acts, ib. But admissible as a defence to specific performance to ment does not contain real terms, 897, 898 Either by fraud, 898

show written agree-

mistake,

ib.

surprise, ib.

Or that agreement was executed upon faith of a stipulation varying it, ib. But specific performance decreed upon plaintiff submitting to perform
agreement with variations,
See Secret Trust

Statute of Frauds.
See

ib.

PERMISSIVE WASTE.
Whether Court
will interfere to prevent, 861.

WASTE.

PERPETUITIES,
Direction in executory trust to settle property in violation of rule against See Executed and Executory Trustsexecuted cy-pres, 43.

Resulting Trusts.

PIN MONEY,
Definition Object. of,
of, ib.

620
far recoverable, 620, 621

Arrears

of,

how 578

INDEX.
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]

1143

POWERS,
will lie inserted in settlements directed to he made by Court in eases of executory trusts, 44 Conferred under Lord ('ran worth's Act. 48 Under tin' Settled Estates Act and Settled Land Act. 1882, ib. Set

What

3Fraud upon a Power. PRESUMPTION OF ADVANCEMENT.

Trusts,

Defective

Execution of a Power

Executed
name
Sec

and Executory

When

it

Or person

How

it

arises on purchase by a parent, in in loco parentis. \!.V> may be rebutted or supported, 259.

of child,

2.">l

ADVANCEMENT.

PRINCIPAL AND SURETY,

Surety
is entitled to all securities which the co-sureties have obtained from principal debtor, 125 Although not aware of their existence, ib. Arso policies of assurance on life of debtor, ib. Parties may by contract waive benefit of securities, ib. Surety may by default estop himself of benefit of securities, 126 Surety paying debt entitled to securities of creditor from debtor, ib. Immaterial that creditor was not aware of securities. il>. Or whether they Avere taken before suretyship or after, ib. Right may be lost by surety taking a security upon other property, ib. Unless he did so without knowledge of prior security, ib. Surety paying oft" part of a mortgage debt entitled to charge on the es-

tate, ib.

But not
debt,

to a security given at a different time for a different part of the

ib.

Surety leaving balance unpaid, security presumed to remain for balance, when, 126' Cannot be treated as released, 127 Mortgagee making a second advance cannot tack second mortgage as
against surety,
ib.

Surety entitled to all equities which creditor had against principal debtor, 128 Also against persons claiming under him, ilt. Entitled to marshal securities against whom, ib. To set off deht due from principal debtor against demand of creditor, when, ib. To set oft" in bankruptcy a mortgage debt he has paid of the principal debtor against money owing to the owner ofthe equity of redemption, 128 And he may set-oft" his payment against calls where Joint Stock Company is owner of the equity of redemption, ib. May have benefit of a vendor's lien on payment of price for goods to broker, when, ib. Surety for one of two separate debts due on distinct securities cannot call for assignment of both securities on payment of one debtor, ib. And creditor will have a right to consolidate securities, ib. Surety tor further advance, on payment of original debt, entitled to surplus value of securities, ib. Upon what right of surety to securities depends, ib. Release of surety by loss of security through neglecl of creditor, ib. Or by security not being properly perfected, ib. Right to securities does not arise by endorsing a bill of exchange, 1"1 Surety discharging obligation can only claim for what he has actually
"

paid,

ib.

Early instances of assignment of securities to surety. 131 Surety more recently not entitled to an assignment of a debt or bond, 131, 132

579

1144

INDEX.
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[]

pages.]

PRINCIPAL AND SURETY continued. A surety paying off a bond was a simple

contract creditor, 132

But a surety upon a second bond, given as a collateral security, entitled even under old law, on payment of the debt, to an assignment of the original bond, 132 Surety paying Crown debt, stood in place of Crown, ib. Law of Scotland, 133 By Mercantile Law Amendment Act, 1856, surety now entitled to assignment of judgment, specialty, or other security by creditor, ib. Statute applicable to co-contractors and co-debtors, ib. To trustee suing co-trustee for indemnity for breach of trust, 134 Surety could not under 5th section have ^medy against co-surety on motion, ib.

Not applicable where breach of contract made before act, takes place after, Retainer by surety executor of debtor for debt paid alter his death, ib.

ib.

Surety under act discharging a specialty debt becomes a specialty creditor

of debtor, ib. Secus, where debtor dies before specialty debt discharged, ib. Specialty and simple contract debts now payable pari passu, 135 Only surety paying the debt before bankruptcy had a right under the old Bankruptcy law to stand in the place of the creditor, ib. When surety paid before the bankruptcy of the debtors, ib. Wheu the sm-ety paid after proof by the creditor, ib. And the surety might compel the principal creditor to go in and prove the debt, ib. Principal creditor in such case, trustee of future dividends for surety, ib. And compelled to account for dividends already received, ib. Law not altered by subsequent Bankruptcy Acts, ib. Under successive Bankruptcy Acts, surety paying debt after bankruptcy had right to prove, ib. Or stand in place of creditor who had proved, ib. Law not altered under the Bankruptcy Act, 1883, ib. Payment of part of a debt by a surety to the creditor after proof, will not prevent his receiving dividends on the whole debt, 13G Provided he does not receive more than 20s. in the pound, ib. Surety subsequently paying the whole debt entitled to future dividends until when, ib. Proof of surety for part of debt paid before bankruptcy, ib. Right of surety may be varied by contract, ib. Rights of creditors in respect of unpaid instalments guaranteed by a surety,
ib.

Surety entitled to prove in debtor's bankruptcy for what he has paid, ib. Cannot put creditors to election to carry out or reject arrangement in toto, ib. Right of surety for a limited part of debt paying it to future dividends thereon of principal debtor, ib. No distinction between bankruptcy and winding up, 137 But rule in bankruptcy in calculating dividends considering sum paid by surety as expunged not applicable to winding-up cases, ib. Right of creditor may be waived, ib. Surety for the whole debt with limit of liability liable to pay sum due within such limit, ib. And is not entitled to deduct therefrom rateable proportion of dividends on bankruptcy of debtor, ib. Distinction between guarantee of part of debt and of the whole debt with limit of liability, 138 Prima facie a limited security for a floating balance is security for part of debt, 138, 139 Secus, where the suretyship limited in amount is for a debt already ascertained exceeding the limit, 139

580

INDEX.
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pnf?es.]

1145

PRINCIPAL AND SURETYcontinued.

Surety under old law having ]>;<id debt and interest after bankruptcy oi debtor could not prove for interest, il>. Doubt I'nl whether he can do so now, ib. Where creditor enforces bis rights unjustly as between sureties intei se Court will afterwards adjust the same, ib. Co-debtor paying debt not entitled to prove for moiety on bankruptcy of codebtor, 140.

In respect of

what he may

See Sureties. prove,

it).

PROBATE DUTY,
Payable on real property converted to partnersbip purposes, when, 233 Payable in respect of real estate directed by a will to be converted, 995-997.
Sec
to,

Conversion.
resulting to heir-at-law on partial failure of trust to convert liable
to,

Money

on his death, 996 Donatio mortis causa not liable

1088
See

PROMOTERS OF COMPANY,
Stand in a fiduciary relation to it, 185, 186, 187. Dealings with when set aside, ib.

TRUSTEE.

PURCHASE-MONEY.
Lien.

See

Application of Purchase

Monky Vendor's

PURCHASERS, When bound to see to application of money, 80. See APPLICATION OF PURCHASE Money Joint Purchasers. Who cannot become, 174, See Agent Assigneesofa Bankrupt Barrister Bishop Creditor Director Executor Guardian and Receiver Ward Mortgagee Stock Broker Trustee. In the names of third parties, 243. See Advancement RESULTING
Trusts,
1.

Of a

fictitious person,

254
80.

RECEIPTS,
Power to give, for purchase-money, when implied, of Purchase Money.
See

Application

RECEIVER,
Cannot purchase, when,
177.

RECONVERSION,
Of partnership property into

Of property

realty, 234. See Conversion, directed to be converted, 1004. See Election.

6.

RECTIFCATION OF SETTLEMENT, When directed in equity, 49. See EXECUTED and EXECUTORY TRUSTS, 4 RECTOR OR VICAR. How far they can fell timber. 85 S. >'<, Waste. RELEASE OF POWER, When valid and when fraudulent, 462, 463. See Fraud upon a Power. RENEWAL OF LEASE,
By
51.

trustees or executors, is in trust for person entitled to the old lease, See Constructive Trusts.

By administratrix of tenant from year to year, ib. By executor de son tort, 55 By husband, ib. By tenant for life, 55, 56, 57, 58. By one of several persons jointly interested, 58 By tenant for life and remainderman jointly, ib.

581

1146

INDEX.
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[*]

pages. ]

RENEWAL OF LEASE continued.

By By By By
a partner, 58, 59, 60 a mortgagee, 60

mortgagor, 60 party entitled subject to debts, legacies, and annuities, 60, 61 Sale of rigbt of, effect of, 61

Agent cannot

effect for his

own benefit,

ib.

Trusts will not attach on additional lands, 62

RESIDUARY LEGATEE,
May purchase share of another, 197 On a charge on share of another for less
than the amount,
ib.

See

Teustee.

RESTRAINT UPON ALIENATION,

Of married woman,
605.

See

Separate Use.

RESULTING TRUSTS.
1.

On purchases

taken in the names of strangers, 243, 244

"Whether in one

name

or several jointly, 244

is

Or successively, ib. Custom of a manor that nominee should take beneficially, Doctrine applicable to real and personal estate, ib.

bad, 244

in the name of another, ib. Transfer of stock, ib. Purchase of aunuity, ib. And to a joint advance on purchase, ib. To purchaser taking a grant of copyholds to strangers successive, 245] To his executor or administrator if no special occupant, ib. But no trust will as a rule result to defeat the policy of Acts of Parlia-

Bond taken

ment,

ib.

As the old Registry Acts of Ships,

Exceptions from
rule, 245,

ib.

246

Retransfer to rightful owner ol ship compelled notwithstanding the Mer-

And

chant Shipping Act, when, ib. an account of earnings, ib. Effect of non-registrat ion of mortgage of ship, ib. Investment made in evasion of the Savings Bank Act (9 Geo. 4, c. 92), ib. Do not arise in favour of a person who has purchased an estate in the name of another to give him a vote, 247 In favour of a person purchasing lands in New South Wales in the name
,

of a third party,

ib.
ib.

Advance of purchase-money may be proved by parol evidence, Even against statement in deed, ib. But the evidence must be clear, ib.
admissible, ib.

Semble, evidence of the mean circumstances of the nominal purchaser

is

Evidence admissible against express declaration of the deed, after death of nominal purchaser, 247, 248 Admission by nominal purchaser of the payment of the purchase-money

And

sufficient evidence, 248 parol evidence is admissible against denial by answer of the nominal purchaser, ib. Held (in BartleU v. Piclersgill, 1 Eden, 515) not admissible to prove agency of purchaser against his denial by answer, ib. BartleU v. Pickersgill recently disapproved of, 249 In favour of cestui que trust on proof of purchase by trustee of land, ib.

by the real purchaser,

Or goods and

chattels, ib.
ib.

Right of cestui que trust to elect to take property purchased, Or to hold it as security for trust money, ib.

582

index;
[The paging refers
to the [] pages.]

H47

R ESTJLTING TRUSTScontin ued.

Right of cestui que trust to a charge on land bought by trustee with a mixed fund, 250 Trustee entitled to an indemnity for sum advanced, ib. Trust money followed when invested by other fiduciaries, ib.

As by agents, ib. Bailees, ib. Colleetors of rents, ib.

May And

be followed when paid into an account at a bankers, ib. a charge on the balance, ib. Rule in Clayton's Case, (1 M.er. 572) not applicable as to cheques drawn by by the trustee, 250 Except as between two trust funds paid by trustee to his account with a banker, ib. Trustee may follow trust money wrongly invested, ib. Though he concurred actively in the breach of trust, ib. Trust money bona fide paid to third party cannot be followed, 251 As when paid to a tradesman for a debt, 251 To an auctioneer as a deposit forfeited on non-completion of contract, ib. To a landlord by an uncertificated bankrupt for rent, ib. No trust results on purchase of land by person under an obligation to settle all his personal estate, ib. But personal estate on being traced will be a charge on land cestui que
is

person advancing purchase money as loan, ib. Semble, no trust results upon a transfer in the same manner as on a purchase in the names of others, 251, 252 And presumption arises that a gift was intended, 252 And it may be rebutted or supported by evidence, ib.

No

trusts, ib. trust results for

2.

How

resulting trusts

may

be rebuttal

Resulting trusts may be rebutted by parol evidence, ib. Either as to part or as to the whole. 253 Subsequent purchase or transfer presumed to be made for same purpose
as
first, ib.

Receipt of income by purchaser not sufficient evidence of intention not to

make

gift, ib.

Resulting trust not rebutted by statements of intention to confer undefined benefit, not acted on, ib. fortiori if inconsistent with acts of enjoyment, ib. Parol evidence even of interested parties in connection with surrounding circumstances admissible to rebut, 254 Presumption of, not raised after long acquiescence in the enjoyment of the

person

in

whose name property was purchased,

ib.

And do not arise where there is an express trust, though On purchase in the name of a fictitious person, ib.
Deposit in the

but by parol,

ib.

name of a third person, to give him a fictitious credit, when void as against creditors, ib. Purchase in the name of a child or wife prima facie an advancement. 254. See Advancement.
On
failure of trusts of land directed to be sold, there
in

3.

a resulting trust for

is

the heir, 1041

So where money impressed with character of realty

sold, ib.

directed to be

Or where

partial disposition only is made of money to arise from land directed to be sold. ib. Or where money arising from sale is given over on event which does not happen, 1012 Or for a purpose which is wholly or partially void for illegality, ib.

583

1148

INDEX.
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]

RESULTING TRUSTS continued.

As being against
the Statute of Mortmain, 1042 or the Irish Charitable Donation and Bequests Act, or the Rule against Perpetuities, or the Thellusson Act, ib. Principle on which cases proceed, 1043 Blending of the proceeds of realty with personal estate immaterial,
1043, 1044

So express direction that proceeds of sale shall be deemed personalty, is immaterial, 1044 Though followed by a declaration that lapse shall not be for the benefit of
the heir-at-law, ib. failure of trusts Crown could not claim by escheat, when, ib. Or as bona vacantia, ib. See now the Intestates Estates Act, 1884, ib. Whether real property directed to be sold results to the heir as real or personal estate, 1045 Where sale of land necessary surplus undisposed of results to him as

On

money, ib. Goes to his personal representatives, ib. Though land may not have been sold in his lifetime, ib. And it would pass by heir's will as personalty, ib. And previous to the Wills Act by unattested will, ib. Where sale is unnecessary by means of a total lailure of the purposes of conversion, heir takes estate as realty, ib. Descendible to his heir, 1046 Devisable by will attested so as to pass real estate, ib. Rights of parties not varied by sale unnecessarily made by trustees, ib. Heir in material line entitled to estate of which testator was seised ex parte materna, ib. Illustration of doctrine by Sir John Leach, ib. Where conversion of land directed by deed, whatever is undisposed of results to settlor, 1046, 1047 Where some only of the purposes fail, what is undispossed of results to settlor as personalty, 1047 Whether the trust for sale is to arise in the life-time of the settlor, ib. Or not until after his decease, ib. Where the whole purpose for which conversion is directed fails, prop-

erty results to settlor as real estate,

4.

ib.

Money

directed to be laid out in land, devised to uses which wholly or partially fail, results so far as they fail to the next of kin, 1047
ib.

Next of kin take

it as real estate, ib. Personal representatives have no equity to call for conversion, And heirs or devisees of next-of-kin will take, ib.
5.

Distinction between a
devise, 1049

sum

charged upon,

and a sum

excepted from, a

Failure of purpose for which a sum excepted from a gift to residuary devisee is given results to heir-at-law, ib. In the case of a charge devisee entitled to benefit of failure, ib. Whether the failure arises from the legatee of the charge not attaining a vested interest, ib. As for instance the age of twenty-one, 1049. On the failure charitable legacies made a charge on land contrary to che

By By

Act, ib. lapse on the death of the legatee during the life of the testator, 1050 neglect of the testator to exercise power over sum charged on land, ib. Or the exercise of power in an illegal manner, ib. Devise of estate "after raising a certain sum," equivalent to a charge, ib. Of satisfied term created by will results in favour of devisees, when, ib.

Mortmain

584

INDEX.
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1149

RESULTING TRUSTS continual.

Although
In

lore devise in

strict

settlement the words "subject thereto,"

are omi{jjted, ib.

Devisees take charge sinking for their henefil as real estate, 1051 Except when sum lias been raised during life of devisees, who on
of trusts will take
tate, ib.
it

failure

as personal estate,
tor

ib.

Existent charge appointed

purposes which

fail,

does not sink into es-

6.

Devisee of property takes it discharged of a void condition, ib. As a condition to transfer part to a charity, ib. When residuary devise or bequest comprehends what would otherwise hau
sulted, to heir

re-

or next of kin.

Money
alty,

arising from land simply directed to be sold, the trusts ot which wholly or partially fail, will not pass by a residuary bequest, 1052, 1<i~>:> Unless st is expressly stated that it shall be conssdered as part of personid:.:;

Or the intention appears that

Blending of
ib.
1

it

should pass,

ib.

the.

realty with the personalty, indication of such intention.

Vict. c. 2G, the residuary devisee did not take an undisposed Previous to of sum excepted from real estate devised for sale, 1054

But it resulted to the heir of the devisor, As did also a sum which lapsed or which
ib.

ib.

failed

on account of

illegality,

Even where the proceeds of

io;,.-,

real
Vy

and personal

estate

were blended,

1054,

Unless by express words or the residue, 1056

obvious intention they were comprised in

By

1 Vict. c. 26, interests in real estates which fail by lapse, illegality, or otherwise, go to residuary devisee, ib. Unless contrary intention appear by the will, ib. Devises and bequests to a child or other issue of a testator do not lapse if he leave issue living at testator's death, ib. Resulting trust of personal estate falls into residuary bequest, ib. Whether as being originally undisposed of, ib. Or undisposed of by reason of a subsequent event, ib.

As

failure from lapse, ib.

Or being void for illegality, ib. But testator may show intention
residue, 1056

to except part of his* personalty

from the

And

then the next of kin, if it be otherwise undisposed of, will take, ih. Resulting trust of interest in land sinks into land on death of author Of trust intestate ami without heirs or next ot kin, 1057 And in the case of personalty Crown would take as bona vacantia, ib.

RETAINER.

See Set-off.

REVERSIONARY PERSONAL ESTATE.

Whether a married woman can
her
4:;:;

elect between,

and other property given

to

See Election,

Equity to a Settlement.
set aside, 675.

REVERSIONS,
Purchases
of,

when

Sec

CATCHING BARGAINS.

SALE, To

See TRUSTEE. trustees and fiduciaries, when set aside, 174. , Mere inadequacy of price for interests in possession not sufficient reason
for setting aside, 676 Unless there be fraud on the part of purchaser,
ib.

585

1150

INDEX.
[The paging refers to the
[*]

pages.]

SALE

continued.

Or gross inequality of
Persons conducting, to bid at, 197

price evidencing fraud, ib.

when

ordered by Court of Cbancery, .rarely allowed

When
Of

allowed,

ib.

reversions,

when

set aside, 675.

See

Catching Bargains.

SECRET TRUST,
Devisee takes beneficially, though testator leaves an informal declaration of trust, 902 When devisee promises to carry out the testator's intention, trusts will be
enforced, ib. if by silence he implies that he will do so, 902 Same principle applies when land is allowed to descend upon promise by the heir to provide for others, ib. And to personal as well as real proprerty, 903 Devisee bound to disclose promise to hold property for a charity in evasion of the Mortmain Act, ib. Devise to individuals; upon a secret trust for a charity valid, 904 But equity makes them trustees for the heir, ib. Devisees as joint tenants bound by the promise of one of them to hold for a charity, ib. Secus, in the case of tenants,in common, ib.

Or

Heir

property is devised with call for discovery from persons to to dispose to charities, ib. Onus of proving acceptance of trusts by devisees, ib. Existence of mere charitable desire or object in the mind of the testator

may

whom

power

905 a mere declaration by the testator in favour of a trust by an informal paper, 905 Unless devisee engaged to carry it out, ib. Will may be made so as to incorporate a separate document, ib.
insufficient,
is

So

clearly identified by will, ib. existent when will was made, ib. Devisees upon trusts to be afterwards declared, held trustees though none declared, ib. And trusts must result to heir-at-law of testator, ib. And in the case ol bequest of personalty to next of kin, 906 Defence of Statute of Frauds cannot now be raised by demurrer, ib.

But

it

must be

And be

SEPARATE USE,
Of wife formerly not allowed at law, 543 Allowed in equity, ib. Restraint upon anticipation or alienation introduced to protect, ib. Equitable doctrine of extended by the legislature, ib. Separate use, how and by what words created, independently of any Statute.
give or settle property to separate use of feme, 545 Either before or after or during coverture, ib. Consent of husband before marriage as to property being held to wife's separate use, ib. Parol agreement of husband not binding, ib. Unless acted upon, how, ib. Trustees not essential to existence ot, 544, 545 Husband converted into a trustee for wife when, 545 May give property to trustee for separate use of wife, ib. Or make himself a trustee for her separate use, ib. But the gift in either case must be clear and irrevocable, ib. Uncorroborated testimony of wife not sufficient after his death to convert husband into a trustee, ib.

1.

Who may

586

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1151

SEPARATE USEcontinued.
Imperfect gift does nol amount to declaration of trust, ib. Under Conveyancing and Law of Property Act, 1881, husband may convey
land or choses
in act inn to

wife alone, ib.

ib.

Or jointly with another, ib. Also by a wife to her husband and another,

wife before marriage, agreement in writing must be signed by wife as well as her husband, ib. Merc renunciation of marital ri^ht by intended husband, docs not amount to a declaration of trust, 546 Or clot he intended wife with a testamentary power, ib. Wife entitled to outlay of husband on her separate property, ib. Separate use excluding marital right by what words created, 516, 547, 548,

To bind

fee

simple

of

549 Exclusion of marital right in a French settlement, how effected. 550 What words held oof to create a separate use, ib. Penson of widow of clerk in the East India Company's service held to be to her separate use, when, ib. As to presents from husband to wife before marriage, 551
After, ib.

Husband making

wife defendant in suit as to property, admits

ib.

it

to be to

her separate use,

disregarded,
ib.

Erroneous declaration in decree that wife

is

entitled to her separate use

Trustee in executory precatory trust for "children" may limit shares of daughters to their separate use, ib. Property settled to woman under equity to a settlement, ib. Savings and arrears of separate property considered as belonging to. ib. Acquisitions of married woman after separation when held to be to her, ib. When husband gives permission to wife to carry on business for her sepa-

Makes

rate benefit, ib. it her separate property, ib.

Immaterial whether business was established by wife before marriage, 552 Or after with husband's consent, ib. Or had formerly been carried on by husband when, ib. Permission by husband given before marriage, binding on husband, ib.

And

his creditors, ib.

Permission given alter marriage not binding on husband's creditors, ib. Wife may carry on separate trade under Married Woman's Property Act,
1882, ib.

Stock

in

trade

if

given to her by her husband, liable to his creditors

doctrine of separate use.

ib.

2. Statutory (.illusion of tin

By the Divorce and Matrimonial Causes Act, 552 In case of desertion of wife by her husband wife
order,
ib.

may

obtain protecting

Earnings and property of wife acquired since desertion belong to her as a feme sole, il>. Liability of husband or bis creditors seizing such property of wife, 553 AVifc liable to sue and be sued, how far, ib. Protecting order not applicable to property acquired by immoral practice-.
ib.

Wife with protecting order entitled

since date
ol

to sue in tort, ib.

In case of judicial separation wife deemed feme sole as to property acquired

sentence,
ib.

Or which may come or devolve upon Her power of disposition, ib.

her, ib.

Devolution of her property on intestacy, ib. Effect of subsequent cohabitation with husband,

ib.

5S7

1152

INDEX.
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]

SEPARATE USEcontinued.
Wife whilst separated to be considered a feme sole as to contracts, 553, 554 For suing and being sued for wrongs and injuries, ib. And in any civil proceedings, ib. And husband not liable for her engagements or contracts, 554 For her wrongful acts or omissions, ib. Or costs, 554 Husband liable for necessaries supplied to wife, when alimony not paid, ib. Divorce and Matrimonial Causes Act, amended by 21 & 22 Vict. c. 108, ib. Judge ordinary empowered to grant, protecting order, ib. Acts extended to property of which wife is executrix, administratrix, or
trustee, ib.

Time

of desertion must be stated by protecting order, Order to be deemed valid until reversed, ib.

ib.

Payments
Order

until reversed good,

ib.

how drawn up, ib. Wife may afterwards obtain payment

of

money

in court, ib.
ib.

Or from trustees, ib. Although settled without power of anticipation,

Eftect of protecting order when married woman executrix, ib. She may obtain transfer of stock standing in name of testator, ib. Receive dividends as a feme sole, ib. Order is retrospective, ib. Effect of discharge of order, ib. As to what constitutes desertion, ib. Semble, protecting orders not now necessary, ib. Statutory extension of separate use, under the Married Women's Property Act, 1870, ib.

As

to

wages and earnings of married women thereunder, 555

thereof, ib.

And investments

Personal property coming to her during marriage as next of kin, ib. Money not exceeding 200 under any deed or will, ib. Real property descending to her as heiress or co-heiress, 555, 556 Investments' may be made by a married woman to her separate use in Gov-

ernment annuities,

ib.

Savings banks, ib. Public stock and funds, ib. Incorporated or Joint-Stock companies,

ib.

Industrial, provident, friendly, benefit building, and loan societies, ib. Provisions against use of monies of husband without his consent, 556 Or in fraud of his creditors, ib. Investments under the Act of 1870, or under the Act of 1882, may be received or transferred by married woman without concurrence of her hus-

band, ib. the interest, dividends, and profits received by her, ib. As to policies effected under the Act of 1870, ib. Mode in which petition under that Act should be entitled after Act of
.

And

1882, ib.

Extension of the doctrine of separate use by the Married

erty Act, 1882,
ib.

Women's Prop-

Married woman capable of holding and acquiring real or personal property as a feme sole, ib. And without inteivention of a trustee, 556 Woman marrying on or after 1st Jan. 1883, entitled to hold and dispose of
as her separate property, ib. Real and personal property belonging to her at the time of her marriage, 557 Property devolving upon her after marriage, ib.

588

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I

1153
"1

pages.]

SEPARATE USEcontinued.
Wages, earnings, money or property gained separate from her husband, ib.
in

any employment or trade

the exercise of literary or artistic or scientific skill, il>. married since Act of 1882, nol required to be examined separately under s. 50 of the Settled Estates Act, 1877, ib. Woman married before Ad, of 1882 entitled to dispose of as separate property, real and personal property, title to which accrues after Act, ib. Whether vested or contingent, ib. In possession, reversion, or remainder, ib. Wages, earnings, money, ib.

By

Woman

Property gained and acquired by her, ib. Will made before the Act of 1882, to be construed as though Act had not passed, though testator die after Act, 558 Husband and wife take as tenants by entireties under old rule in will

made

before the Act,

ib.

Wife taking her share to her separate use, Estate taken by husband and wife upon a
cided, ib.

ib.

will

made

since the Act not de-

Investments in the name of married woman at commencement of the Act ofl8H2, prima facie, her separate property, ib. Also investments transferred to a married woman after the Act of 1882, 559 Investments in the joint names of married woman and others, ib. Concurrence of husband in transfers unnecessary, 560 Fraudulent investments with money of husband, ib. Power to a married woman to eflect assurance, 561

Upon her own life,

ib

Her husband's, ib. Husband or wife may effect insurance on his or her life, ib. For benefit of wife and children, ib. Or husband and children, ib. As to policy effected in fraud of creditors, ib. Appointment of trustee or trustees of moneys payable under
Vesting of policy in default of appointment of new trustees,

policy, ib.
ib.

Appointment of new trustees, ib. Power of trustees to give receipts,

3.

ib.

Wife's pow< r of disposition over property given or settled to her separate use. She can dispose of personal estate settled to her separate use, by acts, inter vivos, or by will, 562 Although reversionary, ib. Sum settled to separate use of an English woman with English settlement

When income

a foreigner, 562 given to her separate use for life, and capital to her exeeutors, administrators, and assigns for her separate use, ib. Personal property acquired to separate use after making will, ib. Sum covenanted by husband to be paid at his death to her separate use, ib. Though she predeceased him, ib.

married

to

Situs,

where separate use

is

confined to

lite interest, 56:5

Though sum given absolutely, ib. Where she has personal property settled
satisfy

words of

will, not to

to her separate rise sufficient to be held to be an execution of special power

not referred to, ib. Secus, where will if not held to be an execution of a general power, would be inoperative, ib. Probate of will of woman having separate estate. ib. life interest in real estate always held disposable by married woman us a feme sole, ib. And she might sell or mortgage it, ib.

5S9


1154
INDEX.
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[*]

pages.]

SEPARATE USE.
And

continued.
ib.

contract to sell enforced against her separate estate,

But not against her personalty, ib. Assignment by husband and wife of life interest of reversionary interest in annuity charged on land to separate use of feme sole valid, ib. Though no fine levied by wife, ib.

Same

According
use, ib.

decision as to rent charge in Ireland, 663, 664 to recent authorities married woman, when not restrained from alienation, may dispose of estate of inheritance settled to her separate

By deed By will,

not acknowledged, 664

ib.

semble even although the legal fee is in the married woman, )b. Secus,' when the separate use extends to her life interest only, ib. Can contract to sell landssettled to separate use to a Railway Company, Or demise the same, 565

And

ib.

Lessee protected against intrusion of owner of legal estate, ib. Woman equitable tenant in tail of freehold estate to her separate use bar estate tail, 565

may

Though restrained irom alienation, ib. But concurrencs of husband necessary, Though he Avas a bankrupt, with order

ib.

of discharge, ib. Married woman cannot dispose of property settled to her separate use on a contingency which has not happened, pending contingency, ib. Or bind by general engagement separate property not belonging to her at the time of the contract, ib. May do so under the Married Woman's Property Act. 1882, ib. Married woman, tenant for life for her separate use, under instrument executed before Fines and Recoveries Act, protector of settlement, 565 Acknowledgement of married woman now to be taken by one commissioner, how, 566 Woman married since the Act of 1882, can convey property without acknowledgement or concurrence of husband, ib. As may also woman married after act as to property acquired also alter
act, ib.

Assigns of copyright by a married woman entitled to it to her separate use when prevented from breaking her contract, ib. Married woman can bind separate property without trustee's assent, ib. Unless it be rendered necessary by instrument giving her the separate

Trustee with notice of assignment thereof by married woman, liable tor subsequent payments to her, 567 Enlargement of term into fee simple by married woman, under Conveyancing and Law of Property Act, ib. ib. If it be to her separate use without the concurrence of her husband, Whether with restraint upon anticipation or not, ib. Powers of a married woman tenant for Hie under Settled Land Act, 1882, when entitled to her separate use, ib. Or entitled under any statute passed or to be passed for her separate property or as a feme sole, ib. Restraint on anticipation not to prevent exercise of power, ib. interest for Liability of corpus of married woman's property when she has a life her separate use with a power of appointment. Where the power of appointment is general by deed orwntmg or will it is equivalent to an absolute gift to separate use, 568 And property is liable to general engagements and debts of the married

property,

ib.

4.

woman, ib. But Court, during her life only affects life interest, and not the corpus, Immateiial whether life interest precedes or follows power, ib.

id.

590

iNi)i;\.

1155

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SEPARATE USEcontinued.

Special power of appointment to a married woman, doesnot derogate from an ultimate limitation to her in fee to her separate use. il>. She may dispose thereof by will, ih. Where, alter lite estate to' separate, use. rhere is a power to appoint hy
will,
ib.

Semble, exercise of power by will renders property liable to debts of married woman, 569 Even in the absence of fraudulent representation on her part, ih. Exercise of general power hy married woman under Act ol 1882 renders property liable to her debts and engagements, 570 Bat debts and engagements do not prevail against parties taking in default of appointment hy a married woman, ib.
5.

Liability of separate estate to debts

ing, ih.

and general

contracts not referring to

il.

Separate estate bound by general engagements of married

woman

in -writ-

As by her bond, ih. Though given to her husband,

Or with him, ib. Or with a stranger, ih. Covenant to pay a sum,
ib.

570.

By

her acceptance of a bill of exchange, ib. Or her indorsement of promissary note. 571 By promissory note given by herself alone, ib. Or jointly and severally with her husband, ib. guarantee of costs of suit. ib. contract to purchase, ib. By agreement to pay additional rent for a bouse, ib. To take a house, ih. Retainer in writing by married woman of solicitor implies promise to

A A

pay taxed costs, ib. Also her written acknowledgement or adoption of proceedings, ib. Married women having separate property if sued separately, not obliged to give security for costs, ih. Secus, if she be restrained from alienation, ih. Separate property liable for costs of suit in Divorce Court improperly instituted against, her husband, ib. Separate estate not liable for COStS of solicitor of husband and wife for business relating to separate estate, ib. Unless wife has, in writing or verbally, charged her separate property, ib. Or promised to pay the costs, ih. Husband liable to solicitor in the absence of special contract, ib. Married woman not liable for costs of a suit in which she was not interested, 573 Though during insanity of husband she instructed solicitor to appear tor
her children, ib. Application to tax solicitor's bill for suit relative to separate property must be made by next friend, ib. Solicitor cannot enforce lien on separate estate, pending a reference for
taxation,
ib.

As

to decree establishing claim

by creditor against separate

estate, ib.

Separate property bound by engagements of married women operating as contracts not appointments, ib. Verbal contract sufficient, ih. Except where writing would be required in the case of a feme sole. 573 Held in Ireland that separate estate in realty not liable to general engagements of married woman not in writing, ih. Semble. they may be enforced by way of equitable charge and execution, ih.

591

1156

INDEX.
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SEPARATE USEcontinued'.

Semble, separate property of married women not liable, upon the ground of an implied assumpsit in opposition to her intentions, 574 Separate estate of married woman not liable for rents wrongly received by her from trustees, ib. Separate estate of married woman not liable for her torts or breaches of
trust, ib.

Liable on contract or tort under the Act of 1882, 575

Married woman (unless restrained from alienation) liable for concurrence with trustees in breach of trust as to a fund settled to her, ib. And cannot call on trustees to replace loss, ib. Secus, where trust lund lost was payable on a contingency which had not happened, ib. Married woman's separate property liable for breaches of trust, in respect of property under the same trust, 576 For her fraudulent representation in respect of, ib. Arrears of income liable, ib. Though settled without power of anticipation, ib. Future income of such property not liable, ib. Married woman now under Act of 1882 liable for breach of trust, ib. For devastavit committed either before or after marriage, ib. Husband not subject to such liabilities, ib. Unless he has acted or intermeddled in trust or administration, ib. Husband formerly could not claim contribution out of separate property
for payment of his debts, ib. Or to maintain himself and his family, ib. Even though his wife has eloped from him,

ib.

Settlement of wife's property may be ordered by Divorce Court, when. ib. Married woman liable under 3:) & 34 Vic. c. 93, for maintenance of her husband and children, when, 577 Having separate property liable under the Married Women's Property Act.
1870, to maintenance of

husband and children, how

far, ib.

Act, 1882, liable for maintenance of husband, children aud grandchildren, ib. Wife, having separate estate may pledge her lunatic husband's credit for

Under the Married Women's Property

How

her maintenance, ib. far an allowance will be made to husband out of separate property when his wife is a lunatic, 577, 578 Husband paying off mortgage on his wife's separate estate may charge it to extent of mortgage, 578 Separate estate liable when wife is made a contributory, 578, 579 Semble, married woman having separate property could not be made a

bankrupt, 579

Except under the custom of London, ib. Or as wife of a convict, ib. May be so under Married Women's Property Act, when,
6.

ib.

Of

the receipt by the

husband of

the

income or corpus of the separate jiroperty

estate without restraint

of Hie wife.

Wife can deal with income or corpus of separate

on anticipation,
ib.

May

give

it

to her

husband,

ib.

to receive income of her separate property he is entitled to receive it, ib. So where she permits him to receive tacitly, ib. Especially if he receive it for many years, and applies it for the benfit of the
family,'

Or any one else, ib. Wife expressly authorising husband

579
is

Even when there

a clause against anticipation, ib.

592

INDEX.
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]

1157

SEPARATE USE continued.

Or the husband was one of the trustees, ih. If payment were made to him us husband and not
as trustee, 580 Practice sufficient evidence of acquiescence, ib. Semble, exception where there is a receiver, ih. Or as against purchaser tor value, it). In some eases husband held accountable for one year's income, ib. Wife entitled to re-imbursement when she has neither expressly nor tacitly assented to the receipt by her husband other income, ih. Assent not presumed after husband has in breach of trust misappropriated

the eapital,

ib.

Wife must make a serious demand for her income, ib. Mere trilling complaints not sufficient, ib. But when acquiescence could not be persumed on aecount of lunacy of
wife, allowance

Married

made to him, 581 woman may give corpus of separate

ib.

estate to husband, ib.

Chattels passing by manual delivery,

Cannot

recall gift, ib.

Intention of wife to make a gift must be clear and distinct, ib. Presumption of a gift does not arise on the transfer of property from a wife to her husband, ib. Onus of proving intention to make a gift lies on him, ib. Consent of wife must be taken in Court to transfer of fund in Court settled to her separate use to husband, ib. Wife may now convey freehold land or a thing in action to her husband
alone, ib.

Or jointly with another person, 582 Husband liable for receipt of capital and savings of separate property of
wife, when, ib. Followed into real estate purchased in his name, ib. Wife may by her acts show that husband was not liable to account, ib. Wife advancing a loan out of her separate estate may prove in an administration suit against estate of husband, 583 Or in bankruptcy under the Act of 188*2, ib. Postponed to other creditors for value, ib. Evidence of husband and wife formerly in civil cases not admissible for or

against each other, .">"<! in cases relating to separate property, ib. Admissible now under Evidence Act, ib. Andin criminal cases under the Married Women's Property Act, And husband and wife competent to give evidence, ih. Excepl when defendant compellable to give it, ib.

As

ib.

7.

Belief afforded to and against a married spect of her contracts, <&c.

woman having

separate, estate in re-

court of equity can make no decree personally against a married woman, but against her estate only, ib.
ib.

Extent of relief against separate estate, Personal estate, 584 Rents and protits of real estate, ib.
Stock, ib. Life interest, in stock, ib. Judgment creditor of married

woman

entitled to a writ of sequestration,

when,

ib.

To a

receiver, ib.
ib.

Formerly debt payable out of separate estate not bound by Statute of

Limitations,

Semble, statute applicable 1st of January, 1882, ib.

* 38

to contracts of

married

women

on and alter the

WHITE OX EQUITY.

593

1158

INDEX.
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[*]

pages.]

SEPARATE USEcontinued.
Debt
in respect of general decree, 585

engagement not a charge on separate

estate until
es-|

Until decree injunction not granted lo restraining parting with such

tate, ib.

Process against

may

be defeated by bona fide assignment to purchaser,

ib.

Or mortgagee,

ib.

Right of creditor against arrears of interest due where there

is a clause against anticipation, ib. Of married women over such arrears where invested, ib. Married woman in action relating to separate property might obtain leave

to answer separately, ib. special leave, ib. Petition of course irregular, ib. When not required to give security for costs, ib. Served by leave with process where out of jurisdiction, ib. Her declarations, evidence against her, ib.

By

Liable to attachment for want of answer, ib. For disobedience to order of Court, when, ib. Or sequestration of her separate estate, ib. Formerly necessary to make trustees party to suit against woman having separate property, 586 Death of husband would not dei'eat action, ib. Costs of husband made party to try whether estate was separate or not, ib. Formerly general obligation of a married woman bound only separate estate she was then entitled to, ib. Would not bind property to which there was a restraint on alienation, ib. Though restraint ceased on her becoming discovert, ib. Nor proceeds of policy of assurance on her husband's life, alive at the time of her obligation, ib. Nor fund arising from income settled to the separate use of wife with restraint on anticipation, 587 Subsequently acquired separate property, may now under the Married Woman's Property Act, 1882, be bound, ib. Liability ot married woman under that act in respect of separate property to sue and be sued in contract, ib. In tort, ib, Husband need not be joined in action, 587

As plaintiff, ib. Or defendant, ib. Damages and costs recovered by her to be her separate property, ib. Recovered against her to be payable out of her separate property, ib. Woman may sue alone for tort committed before Act, 588
Contract of a married
perty, ib.

woman

binds only to extent of her separate pro-

Power of suing and being sued is not so limited, ib. As to judgments against married woman under the Act of 1882, ib. Contract of a married woman deemed prima facie, under the Act of
respect to her separate property, ib. And binds present and future acquired separate property, 588, 589 4 of the Act of 1882, not retrospective, 589 Sections 3 D:> not include contracts made before the act, ib. May be brought within Act by a reference to arbitration after Act,
to be

18S2,

made with

&

ib.

Wife 's antenuptial debts and

1

liabilities.

at common law liable to debts of wife dum sola, ib. Married woman taken in execution with her husband, detained have separate property, ib.

Husband

if

she

Secus,

if

she had not,

ib.

594

INDEX.
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1150
papon.]

SEPARATE USEcontinued.
Wife remained
Ceased at law
if,

liable if no notion were brought (luring the coverture, il>. after judgment recovered against herself and husband.
ib.

the husband obtained his discharge in bankruptcy, Wife's separate estate in equity still liable, ib. Husband as administrator subject to her antenuptial
extent, ib. Husband not liable for acceptance

liabilities, to

what

<>f wife, carrying <>n trade in her maiden name, when. ~>'.)0 Husband under Married Women's Property Act, 1870, not liable for wife's debts contracted duin sola. ib. "Wife liable to be sued lor, ib.

And her separate property liable, ib. By Married Women's Property Act, 1874, husband and
for

wife may be sued debts of wife before marriage, ib. Husband only liable to extent of assets received from wife. 590, 591 Assets in respect of which husband is liable, 591, 592 Not necessary in action to allege that husband had received assets of the wife, 592 And property of wife not taken out of power of creditors by a settlement to her separate, use without power of anticipation, ib. Liability for her antenuptial contracts and torts under the Act of 1882, 592,
*

593

Of husband

to what extent, 593 Suits lor antenuptial liabilities, 593, 594 Act of wife liable to criminal proceedings relative to property of husband, 59

Liability of

Questions between husband and wife to be settled in summary way, ib. married woman's property aflei her death Will of married woman having separate personal estate entitled to probate, 594 Administration cum testamento annexo when granted, ib. Creditor of a feme covert may commence action for payment ol debts, ib. But her specialty and simple" contract debts are payable pari passu out of a

Or out

separate estate, ib. ol earnings under Act of 1870, ib. Executor no right of retainer out of, 595 In other respects the ordinary rules of administration suits are applicable,
ib.

Arrears of income fall into residue, ib. Executors of married women take only separate estate disposed of by will,
ib.

The rest goes as undisposed Her husband takes it, ib.

of, ib.

Exercise of power by feme during coverture will not pass dividends of stock received after husband's death, ib. Nor proceeds of sale of chattels after his death, ib. And will go to her next of kin, ib. Rights and liabilities of legal personal representative of married woman in respect of personal estate under Act of 1882, ib. Separate estate of wife not liable to her funeral expenses, ib. But she may by will render it liable thereto, ib. Devolution of separate property undisposed of by a married woman. Undisposed of personal estate settled to separate use of wife, unaffected by legislation, if in possession, belongs to husband jure mariti, ib.

Also equitable interest in chattels so settled, ib. And choses in action belong to him as administrator, ib. Exception where wife had obtained a protecting order, ib.

505

1160

INDEX.
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[*]

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SEPARATE

8.

TJSEr-eontinued. Semble, right of husband to separate personal property of wife undisposed of, not altered by Act of 1882, 596, 597 Liability of husband as administrator to antenuptial debts of wife not affected by Acts of 1870 and 1874, 597 Legal personal representatives of wife rendered liable by Act of 1882, ib. Undisposed of real estate in fee descends to heir of wife, ib. Husband entitled as tenant by the curtesy, ib. And an estate tail of wife descends to heir in tail, ib. Subject to tenancy by the curtesy, ib. Semble, law not altered by the Act of 1882, 597, 598 Lands purchased out of savings of married woman descend to her heir, ib. Savings and arrears of separate estate. Married woman has same power over as over separate estate, ib. Savings from separate estate liable to ber contracts, ib. Arising from property settled to separate use with a restraint upon anticipation, when not liable to the restraint, 598, 599 Savings of money remitted by husband to wife for her maintenance on separation separate property, 599 Savings of wife out of monies given by husband for household purposes be-

long to him,

ib.

For dress, &c, ib. Of allowance to wife of lunatic living apart from husband her separate property, ib.

Though not
Or out of

stated to be for her separate use in order, ib. Investments out of savings in land are to her separate use,

ib.

in houses,
earnings, ib.

ib.

Arrears of separate estate due at the time of second marriage in the hands of trustees, retain original character, ib. Secus, where payment has been made to the lady or her order during widowhood, when, ib.
9.

Aid by

equity to protect

and

recover separate property of a married

woman.
for

Husband restrained from interfering Avith separate property, 599 Though directed to be sold with life interest in the proceeds to wife

her

separate use, GOO Husband may be restrained from interfering with proprietary rights of wife in house settled to her, ib. Doubtful whether he can be so when not seeking to disturb those rights, ib. Except under special circumstance, ib. As pending of a suit against husband for adultery and cruelty, ib. Creditors of husband restrained from interfering with separate property of
wife, ib.

Inquiries directed to ascertain what chattels belong to the wife to her separate use, 601 Or have been purchased with savings of her separate property, ib. Restraint of cause by injunction now prohibited, ib. Solicitor not allowed to appropriate cheque for money payable to separate use of wife in discharge of debt of her husband, ib. Married woman has no remedy against purchaser for value from her hus-

band without notice, when, 601, 602 Semble, married woman could not sue alone to restrain a mere personal nuisance, though her separate property was thereby depreciated, 602 Trust proceeds from lands settled to separate\ise of a married woman without power of anticipation sold under the Settled Estates Act, ib. Where she assigns her separate property to secure a debt of her husband, his property in the same security on his insolvency first applicable, ib. Separate use before Judicature Act, 1873, recognised by courts of law, ib.

596

INDEX.
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1101

SEPARATE USEcontinued.
Blamed woman under Divorce Act may sue and be sued without next
friend,
il>.

When

she has got a judicial separation, ib. Or a protecting order, ib. Under Married Woman's Property Act, 1870,

may maintain

action for
ib.

wages and earnings, G(KJ For money and property by the same Actdeclared to be separate property, Not necessary, in any action, to have a next friend, ib. Or to join her husband, ib. Or trustees, ib. But Act of 1870 did not give any powers to sue a married woman, 604
Necessary therefore in such cases to join husband,
ib.

Husband's

costs, ib.
in trade

Semble, stock

Husband must, under that

comes within meaning of "Earnings," ib. Act, be defendant in action to charge wages and

The

earnings, ib. right and liability to sue

Act,
ib.

and be sued under the Act of 1870 and 1874

Act, 1882, in matters before that
1882,

preserved by Married

Women's Property

Woman, whether married before or after the Act of name institute civil and criminal proceedings for
property,
ib.

may

in her

own

protection of separate

Against all persons, including her husband, ib. Also criminal proceedings, ib. When criminal proceedings not to be taken against husband, ib. Wife may proceed in trespass against persons entering house purchased with her earnings, when ib. Right of husband to do so not decided, ib.
10.

As

to restraint

upon anticipation.

Anticipation or alienation of the separate property of a married be restrained, 005 Whether the subject of the gift be real estate, ib.

woman may

Or
In

personal, ib.
fee, ib.

Or Or

for life, ib.

in tail, ib.

Will not prevent entail being barred, ib. Clause against alienating stock valid, ib. And if in court she cannot call for a transfer, ib. Unless upon restraint failing on death of a tenant for life, 60G Distinction between fund bearing and not bearing income erroneous, ib. She cannot assign interest of fund settled to separate use without power of anticipation as accruing de die in diem, 007 But only interest already payable, ib. Clause against anticipation prevents liability of married woman for breach of trust, ib. Or the consequences of her fraud, when. ib. Or the fraudulent concealment of the clause against anticipation, ib. Clause against anticipation valid against Englishwoman domiciled abroad,

when, ib. Does not prevent trustees getting costs out of fund. when. ib. Nor the costs of the wife being paid thereout in suit to defend fund, ib. Nor husband and wife appointing fund between each other, when, 007, 008 What words will restrain alienation or anticipation. 608, o'O!) Restraint will not be affected unless words clear. (id!>, (ill)
Clause against anticipation when inserted in case of executory 48, 011
trusts,
:>'.

597

1162

INDEX.
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pages. ]

SEPARATE USEcontinued.
Clause inserted in appointment
is

a breach of the rule against perpetuities,

when,

ib.

Clause rejected by Court, ib. Where such restriction in a bequest void for remoteness, ib. Articles for settlement to separate use of a woman of her own property, ought not to have clause against anticipation, ib. At any rate if woman be of full age, ib. Court cannot acton such clause until settlement rectified by its insertion, ib. Act of 1882 does not interfere with separate use and clause against anticipation, Oil, 612 Either in existing or future settlements, ib. Semble, simple restraint under the Act effectual, 612 Not effectual in settlement of a woman's property against antenuptial
debts, ib.

And no
11.

settlement by a man's, ib

woman to have greater

validity against creditors than

lat-

Duration and extent of separate use and restraint on alienation, and when ter can be dispensed with.
is

Restraint as well as the separate use does not arise, or cease,

discovert, ib. When a feme sole before marriage, ib.

when woman

a widow, ib. After a decree for judicial separation, ib. Extends to a subsequent coverture, when, ib. Judgment of Lord Lane/dale, M. R., in Tullett v. Armstrong, 613, 614 Trust lor separate use may be confined to a particular coverture, 614 If extended to the life of the woman may revive on a subsequent coverture, ib.

When

Though separate use is to be free from control of then intended husband, ib. By what acts a woman during discoverture acquires property unfettered by

By By

the restraint, 615 receipt of proceeds of sale of property settled to from trustees,

ib.

calling for transfer, ib. When there are no trustees, ib. Effect of non-conversion, ib. conversion, 616 Whether covenant to settle after-acquired property property, ib. When intended wife is of age, ib.

comprehends separate

When

an infant,

ib.

Effect of her avoiding or disaffirming covenant on attaining twenty-one, 616 On her electing to confirm it, ib. Formerly could only confirm it as to separate property in possession, 617 May under the Act of 1882 do so as to after-acquired separate property, ib. Separate property not comprehended in covenant confined to husband's after-acquired property, ib. Or when covenant to settle after-acquired property of wife excludes "property otherwise settled," ib. Property given to a woman by will coming into operation after the Act of 1.882, comes within covenant to settle after-acquired property, ib. Though property settled and limited to her separate use is thereby excepted,
ib.

Formerly restraint on alienation could not be 'dispensed with by the Court,

618

Or fund settled by separate use with such restraint parted with by Court during coverture, ib. Or paid to party under power of attorney, ib.

598

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1103

SEPARATE USEcontinued.

Property, notwithstanding restraint or alienation, may be sold to satisfy piior equity, 019 Liable for costs, when, il>. Is affected by lapse and acquiescence, ib. May be bound by a compromise, when, ib. Restraint upon anticipation when dispensed with by legislature, ib. When Court enabled to dispense therewith, G19, G20 Sec Paraphernalia. Pin Money.

SEPARATION.
Agreement
for,

between husband and wife, when decreed

See SlapUion
v.

to be specifically

performed, 942, 943.

Stapilfon, vol. 2.

SET OFF,
Executor or administrator of creditor cannot set off debt of husband to tate against wife's equity to a settlement out of a legacy, 534 Sec Equity to a Settlement.
es-

SETTLEMENT,
Rectification
of, 49.

See

Executed axd Executory Trusts.

See

Equity of wife
Rule

to, 507.

Equity to a Settlement.
Sec

SHELLEY'S CASE.
of,

bow

far

applicable to executory trusts, 19, 21, 28.

EXECUTED

axd Executory
SOLICITOR

Trusts.

Conducting sale cannot purchase, 1G2 Has no general authority to consent to a purchase by trustee from his cestui que trust, 179 To bankruptcy cannot purchase, 199 Solicitor may purchase from his client, but he must prove that the trans-

And

action was fair. 189, 199 the payment of the purchase-money though receipt is endorsed on deed, 200 Rule laid down by Lord Eldon, ib. In a fair transaction a solicitor may file a bill against his client for specific performance. 201 Or third parties, ib. Intervention of another solicitor should be insisted on, ib. Rule not applicable if the solicitor does not act in lute re, when. ib. If a solicitor who has ceased to act has acquired knowledge at the expense of his former client, he cannot sustain a purchase, ib.

Unless he has communicated it to him. ib. take a mortgage for what is due to him. ib. Not allowed to derive any benefit on purchase from client by deed improperly drawn, ib. Or by improper delay in obtaining order for receiver, 202 Or by reason of information obtained during employment, when, ib. As by buying up a mortgage, ib. Employed to purchase, accountable lor profits clandestinely made by sale

May

of his

own

property,

ib.

Having conduct of sale under a decree cannot purchase, ib. Nor if he intervenes for parties interested in such sale. ib. Employed to purchase securities of client, cannot hold them for more than lie paid, '-'"!
in uval executed by his client, ib. Interest allowed to solicitor on such purchases, ib. When mortgagee restrained from exercising a power of sale,

as security

Though allowed

ib.

599

1164

INDEX.
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pages.]

SPECIFIC DELIVERY

UP OF CHATTELS.

See

ChattelsDeeds

When
SPECIFIC

decreed, 963

PERFORMANCE OF AGREEMENTS,

1.

Jurisdiction of Equity to compel, 912 Must be founded on valuable consideration, ib. As to contracts relating to real and personal property. Relative to real property, if unobjectionable, decreed as of course where Statute of Frauds is complied with, ib. Because the award of damages would not afford adequate compensation, ib. Also in quasi contracts, after notice to treat given by railway or other companies in exercise of compulsory powers, if price be fixed, ib.

Either by correspondence, ib. By the landowner and company, ib. By arbitrators under the Lands Clauses Consolidation Act, ib. By written agreement, ib. By surveyor named by parol, ib. By verdict of a jury, ib. Railway company compelled to accept an agreement for lease with usual covenants, when, 913 What interest payable by a railway company on purchase or compensation

money,

ib.

When company compelled to take the wliole after having

uiven notice to take

part of land, ib. Company can give notice of intention to withdraw notice to treat, ib. Remedy by mandamus by landowner against company refusing to proceed
after notice to treat, 914 Jurisdiction to enforce in personam, ib. Specific performance of agreements relating to personal chattels when not decreed, ib. Not decreed when damages at law aflord an adequate compensation, 914, See Statute of Frauds Part Performance. 915. As in the case of contract to buy stock, 915

corn, ib.

hops,

ib.

91G Decreed where damages at law cannot be correctly estimated, 916 Or will not furnish a complete remedy, ib.
coals, 915,

in the case of a contract to deliver so much iron, &c, for a certain ber of years by instalments, ib. Or to purchase timber growing in a convenient locality, ib. Or a contract to clear timber off land, 917 To purchase stone, part of a bridge, ib. To purchase articles of virtu, ib. Semble, purchase of specific chattels should always be enforced, ib. Lord Westbury's opinion on the subject, 918 Decreed to purchase debts proved under a bankruptcy, ib. And vendor may file a bill as well as the purchaser, ib. Of contract to purchase an annuity, 919 Of contract to purchase a patent, ib.

As

num-

But where commodities

fluctuate in price, parties

must be

active in insist-

ing on, ib. Trust attaching to personal chattels always enforced, 919, 920 Specific performance decreed of contract to purchase Neapolitan stock, 920 Of life annuity payable out of dividends of stock, 921 To sell life interest in public funds refused, ib. Semble, partly on ground of misrepresentation, ib. To accept transfer of railway shares on which nothing has been paid enforced, ib.

600

INDEX.
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1105

SPECIFIC

PERFORMANCE OF AGREEMENTScontinued.

Purchaser to pay calls and indemnify vendor, when, 921, 922 Not decreed where the purchase was of mere "scrip certificates," 922 Of agreement to accept shares in joint .stock company decreed, when, ib. But proceedings of directors most he prompt, Lb. Not decreed if partnership could he put an end to, ib. Liability of a jobber purchasing shares, ib. Musi accepi the share himself and indemnify the vendor, ib. Or furnish names of transferees to vendor, 922 Broker of purchaser stands in same position, !)'j:: Jobber "with registration guarrantecd" liable unless there is a complete novation of the original contract, ib. Liable until transferees' names are registered, ib. Jobher '"without registration guaranteed" not liable after acceptance of names, and taking of transfers, ih. Reasonable objection can be taken to the names, ih. As when the name given is that of an infant, ib. If name of infant given, jobber, though ignorant of the fact, must indemnify the vendor, ib. And the purchaser giving the name must indemnify the jobber, ib. As where the name is that of a non-existent person, <J:25

A lunatic, ih. A married woman, ib. A person whose name has been given without A foreigner resident abroad when, ih.

authority,

ib.

Not necessary that name of suhvendee should be given, ib. Original purchaser not liable if name of person without means he given, if name be not objected to, ib. Stockbrokers can oblige transferees, named by them to jobbers, to register
and indemnify them from calls, when, ib. Semble, new contract may arise on acceptance of
brokers,
ib.

name by

plaintiff's

And defendant is thereby bound to accept And indemnify plaintiff from future calls, No contract between the original vendor
shares, ib.
it,

transfer, ib.
ib.

anil

intermediate purchaser of

Third party adopting contract to purchase shares compelled

to perform 926 Equitable owner of shares registered in another name entitled to decrease and indemnity, ib. Fact of call having been made before purchase in the absence of fraud would not invalidate contract, ib. Though the purchaser had no notice, ib. Nor would the winding-up of the company after the sale, 927 Semble. purchaser of shares absolved from performance of contract, not made on the Stock Exchange, but with reference to the rules of the company, when directors of company under a power refuse to register, ib.

Secus, if the contract be made on the Stock Exchange, ib. Conflict of authority in cases not falling within these two classes, ib. Semble, independent of the rules of the Stock Exchange, duty of procuring registration rests with purchaser, if.is Unless otherwise provided for by special contract, ib. And he is bound to indemnify the vendor, ib. Presumption that directors would have registered transferee if unobjectionable, ib. Cannot refuse arbitrarily or wantonly to register, ib. Purchaser of shares ignorant of a prior winding-up order, not compelled
to

perform contract, 928

GUI

1166

INDEX.
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SPECIFIC

PERFORMANCE OF

AGREEMENTS-<wn<inerf.

Secus, if

Nor rendered liable as a contributory, ib. winding up order made after purchase, ib. Agreement by directors with a sharebolder to relieve him from liability on consenting to ft forfeiture not enforced, 929 Unless it appears to have been in a proper exercise of their discretion, ib. Numbers of shares must be set forth in contracts, ib.

To lend money not decreed, ib. Nor of agreements to borrow, ib.

Or
to pay, ib.

Of agreement to execute a mortgage for money doe decreed, ib. To execute a bill of sale of chattels, ib. As to chattels, resisted upon the ground of the inequality of the parties, Not decreed where defendant has nothing to deliver, 930 Nor as to British ships or shares therein, ib.

ib.

Executory contract for equitable mortgage of ship not enforced, when, ib. Purchaser under a judicial sale of interest in British ship not entitled to be registered, ib. Practice on sale of ship in execution of a judgment by the sheriff, ib. Or by order of the Court of Admiralty, ib. Not necessary to register an agreement to transfer ship to purchaser, ib. Specific performance decreed notwithstanding non-registration, 930, 931
far equities enforced in respect of their interests in ships against owners, 931 Against mortgagees, ib. Transferor may shew that transfer of ship was intended only to operate as a security, ib. Non-registered agreements for sale of ship not now enforced, ib. Contracts to sell the proceeds of British ships may be enforced, ib. Interference of Court warranted by fraud, 93 2 Re-transfer of ship to rightful owner, when compelled, ib. No action lies on executory contract for sale, &c, of ship without recital therein of the certificate of registry, ib. Mortgage on ship cannot be revived after a discharge of mortgage duly
-

How

registered, ib.

Though discharge given by mistake,

Agreement by a ioreigner
to sell

ib.

a foreign ship enforced, ib. And injunction to restrain removal of ship from this country granted, Registry Acts not applicable to a ship built here for a foreigner, ib. Specific delivery of goods sold enforced at law, ib. Equitable defence may be set up at law, 933 Old Court of Bankruptcy had no jurisdiction to compel, ib.
2.

ib.

Query as to the new Court, ib. As to contracts relating to personal acts. Contract to do works not in general enforced, 933 To bnild or repair, ib. To make a railway, ib. To work quarries, ib.
coal mines, ib.

To make good gravel

pit, ib.
fulfil

Performance of continuous duties not enforced, 933, 934 "Where agreement is entire defendant not compelled to
less plaintiff fulfils his, ib.

his part un-

Secus.

if agreement be divisible, ib. Since Lord Cairns' Act contract to build or repair enforced other contracts, when, ib. And an enquiry as to damages if necessary be directed, ib Agreement for building enforced when denned, 935

if

incidental to

602

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1167

SPECIFIC

PERFORMANCE OF AGREEMENTScontinued.
Lb.

Practice in Scotland,

To do defined work upon a man's own property decreed, ib. As to construct an archway of a particular kind, ib. To build a house corresponding with adjoining houses, ib. Such orders often made in cases of railway companies, ib. Similar order made indirectly by Lord Eldon, 936
Injunction against continuing to keep out of repair,
ib.

To build more readily granted where defendant is in possession, ib. Where there have been acts of part performance, ib. But acts of part performance will not supply want of jurisdiction, ib.
Court will compel companies to perform works contracted for, notwithstanding difficulties, 937 Decreed against railway company notwithstanding inconvenience to the
public,
ib.

to set up the defence of ultra vires, ib. Their own delay, ib. The absence of the Attorney-General, ib. Damages instead of specific performance awarded when, 937 938, 939 Observations of Lord Selborne, L.C., as to measure of damages in such cases, 938, 939 As to damages for refusing to build a brick wall, 939

Not allowed

To

enter into partnership not ordinarily decreed,

ib.

Execution of a deed of partnership when decreed in some cases, ib. Where status of parties ought to be determined, ib. Where there have been acts of part performance to enter into partnership for a term, 939
Secus, where capital
is

undefined,

ib.

Or no term Agreement

iixed, ib.
for

a partnership might be usefully enforced, though subject

to immediate! dissolution, ib.

Opinion of Mr. Swanston thereon, ib. Court will not interfere on behalf of parties claiming under contracts of partnership which are illegal, ib. Tainted with fraud, ib.
hardship,
ib.

Tainted with improper conduct, 939 Or which has reference to manufacture or sale of medicine from a secret

To grant

recipe, ib. lease not

decreed when lessor might enter for breach of cove-

nant, ib. Nor of tenancy for a year, ib Of hiring and service not decreed, ib. Especially where no property is taken from the plaintiff, 941 Of agency not decreed, ib. Nor a contract to employ a shipping broker, ib. For sale of goodwill, when, ib. Of business of attorney, 942

Of medical practice, ib. Agreements for future separation of husband and wife not enforced, ib. Agreement tor present separation enforced by decreeing execution of
proper deed.
ib.
il>.

But there must be good consideration,

Intervention of trustees formerly necessary, ib. Semble, woman may now contract to live separate andapart from her husband, ib. Covenant by trustees to indemnify husband from wife a good consideration, 943 Though conditional on an annuity being secured, 943

603

1168

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pages.]

SPECIFIC PERFORMANCE OF AGREEMENTScontinued.

Or a covenant by a third person to pay the husband's debts, lb. The compromise of a suit in an Ecclesiastical Court, ib. The wife's acceptance of maintenance from her husband when, ib. The expenses of the agreement being borne equally between father of wife and husband, ib*. Husband by injunction restrained from molesting his wife contrary to
convenant, ib. Semble, not restrained from proceedings for conjugal right, before Judicature Act, ib. Specific performance of agreement or covenant to indemnify decreed, ib. No declaration made as to general right to indemnify, ib. With liberty to apply in a case of future breach, ib. Of covenant to refer to arbitration not decreed, 844 Agreement to refer to arbitration held no valid objection to a bill for dis-

Or

covery, ib. for discovery and reliet, ib. Though before bill filed arbitrators were appointed, ib. And since submission had been made a rule of Court, ib. Nor could the master be substituted for arbitrators, ib. Immaterial that agreement to submit to arbitration contained a covenant not to proceed at law, ib. or in equity, ib. After agreement to refer, courts of law and equity have power under Common Law Procedure Act to stay proceedings in any action or suit, 944 But they must be satisfied that there is no sufficient reason for not going on
to arbitration, ib.

But

at it seems that the agreement to refer must cover the question raised law or equity, 945 The result is the same where the agreement is to refer matters in dispute
to a foreign Court, ib. Proceedings not stayed when matters in dispute not within agreement for
arbitration, ib.

Question whether such matters are within the agreement

to decide, ib. Not the arbitrator, ib.

is for

the Court

Unless that question comes within the terms of the agreement for arbitration, ib.

Court refuses to interfere in cases of fraud, ib. But prima facie the Court acts upon arrangements to refer, ib. Immaterial that the Court of Chancery might be quicker and cheaper than conventional tribunal, 94G Nor the fact that there is no appeal from the arbitrators, ib. Or that arbitrators cannot grant an injunction, ib. Unless there were an immediate cause for an injunction, ib. Effect of suit seeking a receiver, ib. a ne exeat, ib. an injunction answering the same purpose as a receiver, ib.

Semble, Court might refuse to stay suit seeking rectification, ib. Secus, where the case for rectification is that of the defendants, ib. How far the readiness of the defendant to proceed to arbitration is a condition precedent to staying proceedings, 94C5, 947 General agreement to submit to arbitration cannot be revoked, ib. Though there was no agreement that submission should be made a rule of
Court,
ib.

Not necessary to make an award a rule of Court on reference of an action by the Chancery Division to an arbitrator, ib. To sell at price to be fixed by valuers or arbitrator when decreed, ib.

604

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1109
pages.]

SPECIFIC

PERFORMANCE OF AGREEMENTScontinued.
death of arbitrator before award, 948
ih.
is

Effect of

Vendor compelled to allow valuer to enter his house, Court will fix on value when valuation of arbitrators

not of the essence

of the contract, ib. Inequitable refusal of plaintiff to submit to arbitration

to relief, ib. Specitic performance of award To convey an estate, ib.

may

disentitle

him

when

decreed,

ib.

Assign seem it ies, ib. But not to pay money, ib. Reason for exercise of jurisdiction, ib. Immaterial that award not made a rule of Court, ib. Secus, in a suit to set it aside, 948 Objection that award is unreasonable not ordinarily admissible, ib. But Court will not interfere if award be uncertain, 949 In excess of authority given to arbitrators, 949 Or defective as only being made on pari of matters submitted to them, ib. Unless parties did not bring matters omitted before them, ib. Specific performance of an award not decreed when it would be refused in the case of an agreement, ib. As when the defendant under the award has a right to have certain duties continuously performed. 949,950 Award not enforced if submission to arbitrator is unreasonable. 950
unfair, ib. or imprudent, ib.

Jurisdiction of equity not ousted

3.

by Common Law Procedure

Act, ib.

Specific

performance compelled by injunction.

Not to do certain acts enforced by injunction, ib. As from ringing a bell, ib. Carrying on a trade after sale of goodwill, ib. From atlixing mark or show of business or demised premises,

ib.

Int he absence of express control vendor of goodwill may carry on similar business in neighborhood, ib, And may deal with old customers, ib. But he cannot solicit them to cease dealing with the purchaser, ib. Or to give their custom to himself, ib. But he may do so on a compulsory sale of goodwill in bankruptcy, 951

Or liquidation, ib. I in material whether he has joined

ib.

or not in the conveyance of the goodwill,

Injunction against sale of certain goods, ib. Acting on the stage, ib. Carrying on a trade in a particular place, ib. Even in case of an assignee witli notice, ib. Or of an infant who represented himself to be of age, ib. Erecting buildings, or buildings above a certain height, ib. Making applications to Parliament, ib. Selling to another in breach of contract, ib. Running trains past a station. 952 Injunction not granted compelling continuous employment for an indefinite
time. 952,
!).">:;

Or

an agreement of which the Court would not decree specific performance, 953 Or to restrain act contrary to agreement broken by plaintiff, ib.
to restrain act ancillary to

4.

Extension of jurisdiction by Statute under Lord Cairns' Act conferring power

to

award damages. Ancient power of the Court

to

award damages,

ib.

605

1170

TNDEX.
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[*]

pages.]

SPECIFIC

PERFORMANCE OF AGREEMENTScontinued.

Act is not retrospective, 954 Does not apply to cases where there is a plain remedy at law, ib. Equity could only award damages where it could decree specific performance,
ib,

Not awarded
ance, 954

if plaintiff has

done

acts to disentitle

him

to specific perform-

Court

may

grant specific performance of part of contract, and damages for

part, 954, 955

Or it may award damages instead of specific performance, 955 Damages given for delay though contract completed before suit commenced, when, ib.

Damages given in addition

to specific performance of a lease, for delay, 955, 95G After decree for specific performance of covenant, supplemental order cannot under Act be made as to damages, 95G If defendant cannot complete, plaintifi* cannot obtain order to rescind and damages at the same time, ib. Act applicable to cases where damages were nominal, 956, 957 Repeal of Lord Cairns' Act, 957 Jurisdiction of Court under, preserved, notwithstanding repeal, ib. Court has now power to give damages in the alternative, irrespective of

Lord Cairns' Act,

ib. ib.

Repeal of Rolfs Act,

Jurisdiction conferred Judicature Act, ib.

by Lord

Cairns' Act, vested in the

High Court by

Damages may be deereed thereunder, though no

mance, 958 As when vendor not able to

case for specific perfor-

make

out a good

title, ib.

Vendor not able to rescind, when, ib. Questions of damages considered when specific performance refused on ground of mistake by defendant, ib. Specific performance of contracts between vendors and purchasers assigned
to

Chancery Division,

ib.

Also contracts for leases, ib. Other cases of specific performance may be commenced in any division of the High Court, ib. Subject to power of transfer, ib. Transfer, under what circumstances made, 958, 959 Court may take notice of right to specific performance incidentally appearing in ejectment action, ib. Lord Cairns' Act in force, notwithstanding passing of Judicature Acts, ib. But jurisdiction under, can only be exercised when plaintifi* entitled to injunction or specific performance on issuing his writ, ib. Damages in Chancery formerly ascertained by issue, ib. Now more frequently by inquiry, ib.

Sometimes by judge

at the hearing, ib.

Judgment may be moved

for under orders upon admission, when, 960 Personal representatives of purchaser ot fee have now power to convey, ib. Power to make vesting orders after a decree for specific performance, ib.

STATUTE OF FRAUDS.
Contract taken out of, by fraud, 897 Fraudulent, non-execution of defeazance, ib. Or omission of clause of defeazance, 897 Evidence admissible to reduce absolute conveyance to a mortgage,

ib.

Or charge,

ib.

Parol evidence by a plaintiff in support of variation in written contract, with acts of part performance, admissible, ib.

606

INDEX.
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["1

1171
pases. ]

STATUTE OF FRAUDScontinued.
As a defence to specific performance without Buchacts, admissible, when, ib. Agreement that contract should not be in writing does not take case ont
of, 898 Except in eases of fraud, ih. Effect of admission of parol agreement to lake Under the old practice, ib.

it

out

of, 8!)!)

present,

ib.

Admission of agreement
senative of purchaser,
tatives of vendor,
ib.

to sell
ib.

by vendor not binding on personal repre-

Admission by purchaser of agreement to buy, does not bind real represenQuestion depends upon whether deceased was bound, ib. Admission of agreement by executors ot a testator not binding on residuary
legatees, ib.

No

further proof requisite if parol agreement admitted

ib.

by a defendant

when,

What evidence
On

required on denial of agreement by answer under the old

practice, 899, 900

denial under the

new

practice

when put

in on oath, 900 without oath, ib.

failure to prove agreement, and on proof of one varying from that alleged, bill dismissed, ib. Without prejudice to filing of another, ib. Probable proceedings under the new practice, ib. Semble, inquiry may be directed as to the terms of an agreement, ib.

On

Especially when possession has been taken, ib. And there are other acts of part performance, ib. Evidence not required where variation is not material, 901 As where plaintiff admits term against himself, ib. Or omits a term favourable to himself, ib. If material terms of contract cannot be proved, decree for specific perform-

ance cannot be made, ib. "Where acts of part performance are equally consistent with an agreement alleged by the plaintiff, and admitted by defendant, parol evidence by plaintiff not admissible, ib. But plaintiff might have obtained a decree by abandoning his own and adopting the agreement of the defendant, 901, 902 Defence of. cannot be raised now by plea or demurrer, 90G

Part Performance of Agreement Equitable Mortgage Deposit ok Title Deeds Secret Trust. Resulting trusts excepted from, 254. See Resulting Trusts.
See
i:y

STEWARD,
Whether be can take a
lease from his employer, 191

STOCKI'.K'OKER, Sales to and purchases from his employer

set aside, 194.

See Specific

Performance.

SURETIES,
Contribution between, 120 Enforced at law and in equity, ib. Arises on payment of creditor by a co-surety, ib. Either voluntarily, ib. Or under proceedings by creditor, ib. In the absence of agreement judgment or award against principal not binding on the surety, ib. Nor is evidence against him in an action by the creditor, ib. And creditor on bankruptcy of surety cannot prove for amount of award, ib.

G07

1172

INDEX.
[The paging refers
to the [*] pages.
]

SURETIEScontinued.
Contribution between, thougb transaction giving rise to suretyship ultra
vires, ib.

The relief in many cases was more complete in equity than at law, 121 As where the sureties were numerous, ib. Where one surety was insolvent, and another paid the debt, ib.
"Where one died, and the surviving surety paid the whole debt, ib. Rules of equity must now prevail under the Judicature Acts, ib. Contribution may be enforced, whether sureties are jointly or severally, or jointly and severally bonnd, by the same instrument, 121, 122 Or by different instruments, if they are sureties for the same principal and the same engagements, 122 And although a surety was ignorant that there was co-sureties, ib. Secus, where suretyship of each, by different instruments, if for distinct
portions of the same debt, ib. Or by the same instrument if each surety only of the same debt, ib.
liable for a distinct portion

Successive endorsers of a bill or note not liable to contribution, ib. Unless they mutually agree to be co-sureties, 123 Right of surety to contribution arises only on his payment of more than his proportion of debt, ib. Even though co-surety has not been required by creditor to pay anything,
ib.

Provided he has not been released by surety, ib. Surety who has paid may sue debtor and co-sureties in the same action, ib. Surety may pay creditor at any time, ib. And may sue debtor in creditor's name, ib. But he must give an indemnity for costs, ib. A surety can in equity claim interest from debtor and his co-sureties for the money which he has paid, ib. But not against estate of deceased principal, 124 Socus, where fund assigned as a further security, 124 Liability of surety may be limited by contract, ib. As that he himself and other sureties should pay respective shares, ib. Or that he should pay only on default of principal or other sureties, ib. Mode of procedure where defendant claims contribution from a third

From

party, ib. a co-defendant, ib. Right of to all securities taken by his co-sureties from See PRINCIPAL AND SURETY. debtor, when, 125.

the principal

SURRENDER OF COPYHOLDS,
To the use
Surrenders
of wills,

when

supplied, 270
statute, 271

Rendered unnecessary by
in the case
it is

Secus, where

of a deed not supplied, when voluntary, ib. supported by valuable consideration, ib. See Defec-

tive Execution of Power.

TACKING,
Of mortgages, doctrine as
to, G99 Mortgagee without notice may protect himself from any intermediate incumbrance, by purchasing in the first, ib. Principle of the doctrine explained by Lord Hardwickc, ib. Law of, not altered by Judicature Acts, 701 Temporarily abolished by sect. 7 of the Vendor's and Purchasers Act, 1874,

ib.

Repeal of section as to England, ib. Except as to anything done thereunder, Repeal of section as to Ireland, ib.

ib.

608

INDEX.
[The pa^'ins refers to the
[]

1173
pases.
]

TACKING
1.

continued. Tacking in the three ridings abolished by the Yorkshire Registries Act. See vol. 2, p. l!t. L884, 701. Rule as to puisne mortgagt e gainingpriority by lacking or legal estate or inU rt <i. Third mortgagee ^without notice may bny in the first, and squeeze out

second,

il>.

Even pendente

lite, ih.

Bole applicable where third mortgagee purchases and takes assignment of

precedent statute. 702
or judgment, ib. Purchase of legal estate at fraudulent under-value held valid, And acquisition of statute by theft, ib.
ib.

Such cases not now followed, ib. Purchaser or mortgagee may protect himself by
trustee without notice of breach of trust,
ib.

legal estate obtained from

Or by means of fraudulent conveyance,

ib.

Provided purchaser and mortgagee were without notice of fraud, ib. Equitable title depending on forged will protected by legal estate, 202 Also equitable title depending upon false allegation of heirship, ib. Principle of doctrine depends upon advance being made without notice of intermediate incumbrance, 702, 70:5 Legal estate may be obtained when advance made, 703 Or afterwards in pursuance of contract then made, ib. At any time before notice of prior incumbrance, ib. Notice of second to first mortgagee not notice to third, ib. Purchaser with notice may shelter himself under purchaser without
a charity, ib. Purchaser without notice may buy from purchaser with notice, ib. Mortgagee may tack legal estate in respect of unsatisfied charges, when. 704 Though security be upon trust to sell and pay advance, ib. Liability of first mortgagee with notice of a second mortgagee paying purchase-moneys to mortgagor, ib. Right of subsequent incumbrancer to take unsatified mortgage or charge, ib. Secus, where satisfied mortgagee held simply in trust for the original mortgagor, ib. Or where trustee of satisfied term had notice of intervening charge or
trust,
ib.

Except

notice, ib. in cases of

Legal

however, conveyed by a trustee in breach of trust held to protect purchaser, when, 705 Priority of successive equitable mortgagees not altered by transfer of legal
estate,

estate by mortgagor, ib, Incumbrancer cannot gain priority by tacking legal estate with notice from a trustee, 706 Or from mortgagor who has made himself a trustee, ib. Person knowing he is a trustee cannot by conveyance without value deprive his cestui que trust of his rights, ib.

Partial legal interest for As a term of years,

is

sufficient to afford protection, ib.

judgment,
statute, ib.

ib.

to incumbrancer, having got in earlier term, ib. Prior term out of life interest has priority over subsequent reversionary term, ib. Though limited out of inheritance, ib. Legal estate of part of estate got in by puisne incumbrancer protects only pro tanto, 706, 707 .

Mortgagee of inheritance postponed

* 39

WHITE OK

EQI/ITY.

609

1 1

71

INDEX.
[The paging refers to the
[*]

pages.

TACKINGcontinued.
No tacking allowed where
for another,

prior mortgagee takes third mortgagee as trustee

707 Or where a person has a judgment in his

trustee, ib.

own

right,

and a mortgagee

as

;*

Executors of first mortgagee ot leaseholds cannot tack, equity of redemption vested in testator as executor of another, ib. Cestui que. trust under a deed may tack first mortgage, ib. Party may tack security of his own to security held by him as executor, ib. Or administrator, 707 Provided he has a beneficial interest in the latter, 707, 708 Reason why mortgage might be tacked to precedent judgment, 708 How benfit by getting in a prior statute or judgment arose, ib. Advantage from, to a mortgagee getting in a statute or judgment, ib.
Distinction between statutes and judgments under old law, ib. Since 1 & 2 Vict, c. 110, 709 Semble, mesne incumbrancer can now gain no benefit by buying in a prior

judgment,
2.

ib.

Semble, statutes are now obsolete, ib. Creditor by judgment or statute cannot gain priority by getting

Judgment

in first mortgage. creditor, or creditor by statute or recognizance, buying in the first mortgage, cannot tack, ib. Nor in any other case where a person does not advance his money upon the faith of the real estate, ib. As a person who has taken an assignment of the purchase-money of an es-

tate only, 710 Exception where a judgment creditor has a mortgage without notice of intermediate judgment, 711 Semble, judgment creditor cannot tack even since 1 & 2 Vict. c. 110, ib. Opinion in Fisher on Mortgages, ib. Whether judgment under 27 & 28 Vict. c. 112, can be tacked after land

delivered in execution, ib. may be so after Judicature Act, 1873, on obtaining a receiver, 712 Effect of receiver giving security, ib. Mere informal equitable mortgage may tack prior legal mortgage, ib. As an equitable mortgage by giving receipts, ib, By deposit of deeds, ib.

Semble,

3.

First mortgagee

may

tack further advance on statute or judgment as against

mesne mortgagee.
First mortgagee advancing a further out notice may tack, ib.

sum upon

a statute or

judgment with-

A
4.

fortiori, if he
T

make an advance upon

a mortgage, 713

tacking allowed if subsequent advance urts made xvithnotice of mesne incumbrances. Subsequent incumbrancer not allowed to tack to a prior legal estate, ib. Unless he lent without notice of second mortgage, statute or judgment, ib. First mortgagee not allowed to tack, subsequent mortgage having notice

Ao

of intermediate incumbrance, ib. Puisne mortgage with notice .of prior incumbrance cannot tack term against incumbrance, ib. Nor against others without notice not having best title to call for term, ib. First mortgagee, without notice of intermediate mortgage, may tack, ib. Secus, where having been repaid, he makes a second advance with notice, 713 First mortgagee upon a mortgage made to secure a sum and further advances, cannot tack second advance made with notice of intermediate incumbrance, 714 Custom in brewers' leases to tack such further advances, held bad, 714, 715

610

INDEX.
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to the [] pages.]

1175

TACKING

continued.

Tberesull the same though all securities with knowledge of all parties were executed on the Bame day. 715 Principle on which cases proceed, ib. Form of second mortgage suggested for rendering further advances of first mortgagee secure, ib. priority, First mortgagee's advance, without notice of second mot
i

Lb.

Though
?>.

lie

may have renewed

In

Bill oi

Exchange given

for

advance,

Lb.

security m,l

ing a Hi n an loud cannot be tacked to a mortgage against

to a

incumbrances.

Judgment debt could not formerly be taeked

ill.

mortgage of copyholds,

before 1 Viet. e. 110, liable to an extent, ib. Prior mortgagee not allowed to tack bond debt against mesne incumbrancers, 716 Against other specialty creditors, ib. Oreven the mortgagor himself, ib. Might do so against the mortgagor's heirs, ib.

As copyholds were not

Or devisees, ib. Covenant or bond in a suit of foreclosure or redemption cannot be taeked so as to give went v \ ears* amount of interest against mesne incumbrances,
1

ib.

Or even the mortgagor, ib. Might do so against heir or devisee of mortgagor, ib. Bankruptcy of debtor does not prevent first mortgagee tacking a judgment
against a subsequent incumbrancer, ib. Bui execution on the judgment must have been delivered prior to order of

And

adjudication, ib. without, notice of an act of bankruptcy,

if

ib.

But judgment cannot be tacked

covered,
6.
ib.

mortgage

satisfied before

judgment

re-

Even though there has been no reconveyance, ib. As to time at which incumbrances sought to be tacked
First

can be acquired.

mortgagee cannot tack subsequent incumbrance pendente lite, "17 Third mortgagee may tack firsl pendente lite, ib. And up to decree, ib. Even after first mortgagee has by answer submitted to assign on payment,
ib.

Not
7.

after decree to settle priorities, ib.

Tacking not allowed when legal estate outstanding. Where the legal estate is outstanding, no tacking allowed, ib. And all the incumbrances are paid according to priority in point of time, 717 Immaterial whether outstanding legal estate is a fee, 718

Or a term of years, ib. Or a term of years attendant on inheritance, ib. Unless merged under Satisfied Terms Act. ib.

Term attendant

before that Act might be clothed with a trust,

ib.

ib.

For a mortgagee,
8.

Or a purchaser, ib. As to better right i coil for legal estate. Incumbrancer having lie hot right to the legal estate, will lie in the samo state as if he had it. ib. Where a declaration of trust of legal interest has been made in his favour, ib. Or he has made the trustee a party to his conveyance, ib. Or he has possession of the title deeds, ib. Reason why making the trustee a party has this effect, il>.
t

611


1176
INDEX.
[The paging refers to the
[']

pages. ]

TACKING

continued. Declaration of trust -will not protect against subsequent bond, fide purchaser,

who has got an assignment

of term, ib. bare right, not being a better right to call for legal estate, affords an inib.

cumbrancer no protection,

Receipt on mortgage deed by a building society as mortgagees vests legal estate in person best entitled in equity to call for it, ib. Not in person who has actually paid the society, 719 Payment to society by mortgagor vests legal estate in first equitable mortgagee, ib.

Legal estate vests in equitable mortgagee paying society without notice of prior incumbrances, ib. Puisne incumbrancer loses advantage of legal estate by a conveyance on sale of the mortgaged premises, ib. And the Court deals with the proceeds according to priorities, ib. Equitable mortgage containing an agreement to execute a legal mortgage

And
9.

gives the best right to call for legal estate, ib. it relates back as against puisne incumbrancer to time mortgage given, ib.

when equitable

As

against whom debts being a lein upon the estate can be tacked. Debts being a lien on the estate as a mortgage debt, 720

Statute, ib.

Or judgment,

ib.

be tacked as against the mortgagor, ib. All persons claiming under him, ib. Mesne incumbrancers, ib. Not by mortgagee making further advances against taking

May

first

mortgage

debt, ib. First mortgagee formerly entitled to tack as against assignees in bankruptcy of the mortgagor, or subsequent docketted judgmenl ib. Though execution not issued at the time of the bankruptcy, ib. Semble, now execution must be completed by seizure and sale before re.

ceiving order, ib. before notice of presentation of petition in bankruptcy, 720 Or commission of available act of bankruptcy by the debtor, ib. 10. Against whom mortgagee lias a right to tack debts not being liens on the mortgaged property Mortgagee's right to tack debts not being a lien on the mortgaged prop-

And

erty, ib.

As against the Or his devisee,

heir of the mortgagor,

ib.

ib.

In the case of specialty debts, when, ib. Simple contract debts, ib. Specialty and simple contract debts now payable pari passu, ib. In the case of a mortgage of personalty as against executor, ib. Specialty and simple contract debts tacked, ib. Not allowed as against the mortgagor, ib.

Or his

creditors, ib.

Assignees for value, ib. His devisees in trust for paying his debts, ib. Parties entitled under a charge for paying his debts, 722

The

assignee of his heir,

ib.

ib.

His executor,

Or devisee, ib. Or mesne incumbrancers,

ib.

By

mortgage,
ib.

ib.

Judgment, Or statute,

ib.

612

1NDKX.
[Tln paging refers to the [*] pages.]

177

TACKINGcontinued.
Surety cannot tack costs of defending action againsl puisne mortgagee, Reason of doctrine, il). Whal arrears of interesl may be claimed by mortgagee tacking, Lb. Right of mortgagee to tack costs and expenses to debt, ib.
Lb.

TENANCY IN COMMON TENANT FOR MFE,

When When

See Joint PubcIhasebs

Joint Tenancy.

he may sell heir-looms, 43. din ctcd to be without impeachment of waste in the case of an executory trust. 46, 17, 48 May purchase, or take in exchange, lands from trustees with power to sell and exchange, with his consent. 204 With power to lease, may man! lease to trustee for himself, when.

Renewal of

lease by, 55, 66, 57.

See

Constbuctive Tbusts

Waste:

'.().">

TENANTS

l;V

ENTIRETIES,

Equity of a married woman to a settlement, or a maintenance out of property of which she and her husband are. 531 But payment to a husband of a fund to which he and his wife are entitled

Law

See Equity to a Settlement. b\ entireties good, when, ib. as to whether altered by the Married Woman's Property Act, 1882, ib.

TENA NT

IN TAIL AFTER POSSIBILITY OF ISSUE EXTINCT, May commit waste, 858

864.

But not his assignee, ib. Cannot commit equitable waste,

See

WASTE.

TIMBER.
TORTS,

See

Waste.
woman's separate estate for her torts, 587 niay sue in respect of, 588. See SEPARATE i"SE.

Liability of married

Married

woman

TRUSTEE,
Renewal of lease by, 45. Sec Constructive Trust. Purchase by a trustee for sale will be set aside, although an adequate
price be given, 174, 175. 176
real or personal, 176 In possession or reversion, ib. Though purchase be by a third person for him, ib. Although the sale be by auction, ib. Or purchase be from co-trustees, ib. Cannot purchase at an auction, ib.

Whatever be the nature of the property,

Or under a decree for a sab', ib. Nor from assignees in bankruptcy or his Or by trustee as agent for another, ib.
Purchase by sub-agent

cestui

que trust, 177

Receiver cannot purchase, ib. Nor agent employed by. in managing sale,

ib.

for sale Of ship at minimum price invalid, ib. Purchase, by trustee after sale to bond fide purchaser valid. Lb. Trustee cannot take a lease from himseif. ib. authorized to do so removed from his office, ib.

When

Nor can governors or trustees of a charily, ib. Nor insert astipulation for theirown benefit in a lease, ib. Nor can member of a corporation taking a lease of corporate
But a trustee can purchase from a cestui que has discharged him from the trust, ib.
trust

property,
sui juris,

ib.

who

is

and

discharge can be effected, 17X Sale between trustee and cestui que trust rarely supported, 17-. 179 Solicitor has uo general authority to consent to purchase by trustee, 179
(313

How

1178

INDEX.
[The paging refers to the
[*]

pages. ]

TRUSTEEcontin ued.
All cestui que trusts being sui juris can do so, ib. When Court will give trustees leave to bid, 179, ISO Nominal trustee may purchase, 180 Trustee who has disclaimed without acting as a, ib. As may a mere trustee to preserve contingent remainders, ib. A bare trustee without any duties, ib. Appointment of receiver does not make a trustee a bare trustee, ib. Trustees may purchase property of trust from Lord Commissioners acting under statutes for redemption of land tax, ib. May deal with trustee in matter unaffected by trust, ib. A trustee for infants, or persons under disabilities, cannot purchase trust estates, except by leave of the Court, 180, 181 Leave refused to confirm lease to a committee of a lunatic's estate, 181 Though approved of by the Master, ib. Director of a company cannot purchase shares from chairman, when, ib. Must account to company for profits made by dealings with it, ib. As also must the firm in which he is a partner, when, ib. Directors of a company cannot receive money to purchase qualification shares from proposed vendors, 182 Or fully paid up shares, ib. Remedy of the company against directors, ib. Jurisdiction as to directors under sect, 165 of the Companies Act, 1862, similar, ib.

Liability of directors for misfeazance or breach of trust under, ib. For receiving moneys from promoters, 183 Or gift of fully paid-up shares, ib. Shares at a price below value, ib.

When

charged with interest,

ib.

Directors not liable when every member knew of transaction, ib. Or fresh shareholders, when, ib. Not liable to be put on the list of contributories when they received fully paid-up shares from proposed vendors, 183, 184 But liable to the company for a breach of trust only, 184 May receive compensation for loss of office from a duly called meeting of

the company,
set aside,

ib.

Secret stipulation

by directors negotiating an amalgamation of companies when, 185

ib.

Promoters of a company stand in a fiduciary relation thereto, ib. Sale by to company under the name of syndicate set aside, when,

Estate of deceased member of syndicate liable, ib. Secus, directors not being members of syndicate, ib. Company may recover from promoters secret profits made by them, 186 Though it has compromised suit with vendors, ib. Promoters entitled to what expenses of bringing out company, ib. But not to any commission, ib. Unless offered by the plaintiffs in the suit, ib. Company can prove against estate of promoters in liquidation, ib. Contracts of directors under Joint Stock Companies J\.ct to be submitted to meeting, when, ib. Under Joint Stock Companies Act, 1862, must vacate office if he holds any other office or place of profit under company, 187 Or if he participates in the profits of any contract with the company, ib. Secus, if be is a member of another company which has contracted or done work for company of which he is director, ib. But he must not vote in respect of such contract or work, ib. Vote if given not to count, ib. Mortgagee or annuitant with powers of sale cannot, either directly or indirectly, purchase the mortgaged estate, 187

'

U14

INDEX.
TTho paging rofers
to the ["] pages.]

1179

TRUSTEEcontinued.
Excepl by express authority of the owner,
ib.

Nor can

solicitor

conducting

sale,

when,

ib.

of a building society when mortgagees selling by auction, Mortgagee may purchase equity of redemption from mortgagor, 188 Or from prior mortgagee selling under power, ib. Though mortgagee purchasing has a trust for sale, ib.

Nor secretary

ib.

But

trustee for sale cannol purchase, ib. Transactions between mortgagee and mortgagor viewed with jealousy, ib. Onus of, showing fairness of a conveyance thrown upon mortgagee, when. ib. Lease from mortgagor in distresssed circumstances to mortgagee set aside,
ib.

Trustee
189

who

Whether

trustee can advance

r

has become mortgagee of property cannot foreclose, ib. money on mortgage ofacharitv property 188

Agent or solicitor emplo3 ed to sell cannot purchase from principal, 189. See Agent. Trustee of a creditor's deed buying property at an undervalue, 199 Semble, jurisdiction to set aside deed is in bankruptcy, ib. Sale set aside when brought about by breach of confidence between parties,
207

Though

there

is

How

far trustee

no particular relation between them, ib. can deal with his relations in respect of the trust property,

is no fiduciary relation, in the absence of fraud, sale not set aside for mere inadequacy of price, ib. Though vendor may have no professional adviser, ib. Inadequacy of price and want of advice evidence of fraud, ib. Especially where vendor is poor and illiterate, ib. The Sale of Land by Auction Act, 1867, not a bar to sale by order of the

208 "Where there

Sale set aside

facts, ib.

Court being set aside, when, ib. when approval of Court to sale obtained by suppression of
relief will be granted against trustees or others, 209 the property remains in their hands unsold, ib. in the hands of a purchaser with notice, it has been resold, 211
il>.

Terms upon which

When When
Costs,

ib.

Acquiescence, ib. Continuation, 2l3, 214. See Assignees op a Bankbupt

* TRUSTS. See Constructive Trusts Executed and Executoby Tim Resulting Tbusts.

Administrator Agent ABBITBATOB BabbistebBishopCommissioner in BankruptcyCommissioner under Enclosure ActConstbuctive Timsts CREDITOR DlBECTOR EXECUTION CREDITOR Kx ECUTORS Fiduciaries G-uabdi an andWabd Judge Receiver SaleSolicitor StewardStockbbokebSubeties Tenant fob Life Undue Influence Vali ees undeb Enclosure Acts.
sis

UNDUE ENFLUENCE,
Transaction brought about by, set aside, though there was no fiduciary
lation
re-

between the

parties, 207.

< Huguenin

r.

Laseley. and Note

Vol.

2.

VALUERS UNDER COMMONS ENCLOSURE

VENDEE'S LIEN
For prematurely paid purchase-money. 393

ACT,

Prohibited from purchasing land, when, 207

ill.-,

1180

INDEX.
[The paging refers to the
[*]

pages. ]

VENDEE'S LIENcont
Extends

nued.

And

to interest of purchase-money, ib. costs of suit, ib.

ib.

But not to damages,

As against subsequent mortgagee with notice, ib. As against interest of mortgagee selling under power

of sale, ib.

And

que trustent, ib. Lien of second vendee upon interest of first vendee, ib. Where another person under contract of sale turns out
their cestuis
estate, ib.

to

be 'entitled, to

Of trustee on

estate for his

own money

invested with trust

money

in its

money expended on premises on failure to grant a lease, wben, ib. Will not exist where vendee abandons contract by his own default, ib.
Nor when contract is illegal by statute, ib Nor where he is disqualified from holding real estate, ib. Secus, where vendee repudiates contract when good title cannot be made, Or sale is a breach of trust, ib.
ib.

purchase, 394 Lien of lessee for

VENDOR'S LIEN,
In equity for unpaid purchase-money, where conveyance executed, 375 Formerly did not exist at law after conveyance, 375, 376 Rule in equity now prevalent, 376

Vendor's lien for price of goods possessory, ib. Attaches although no conveyance if possession delivered, In case of freeholds, ib.
copyholds,
ib.

ib.

leaseholds, ib. Extends to advances of vendor for improvements, ib. for purchase-money Lien of ostensible vendor, ib.
for unpaid purchase-money, 377 For unpaid compensation, when, ib. Lien extends against company's lessee of purchasing company, ib. Lien not ousted by mortgage of part of the lands under an Act, ib. Lien enforced against company by sale, ib. Though line opened for public use, 377 Injunction to restrain company running trains on line till money paid not granted before judgment, ib. Unless company were destroying property, 377 Application should be made for payment of purchase-money into Court, ib.

As against railway companies

Receiver,

when

appointed,

ib.

Lien should be declared a charge on land in a decree

ance, ib.

for specific

perform-

Not declared on petition, ib. Vendor not entitled to lien

Act, when,

for costs of arbitration

under Lands Clauses

sect.

WS
85 of the Lands
ib.

Nor on sum deposited by railway company under

Clauses Act,

Nor when

sale to a railway

company

is

in consideration of a rent-charge
ib.

on

all their lands, ib.

Owner

of rent-charge on non-payment entitled to a receiver, of what, Powers of distress, on what, ib. Enforcement of vendor's lien, form of decree for, ib. Lien when purchase-money is payable by instalments, ib.

Lien when subject of contract

is

situated abroad, 379

to

What amounts to an abandonment or waiver oj the lien. May be abandoned by the vendor taking a security,
clusively given, ib.

which

credit is ex-

616

INDEX.
[The paging refers
to the !'] pages.]

1181

VENDOR'S LIENcontinued.
the vendor for the purchase-money will not be evidence of his intention to abandon the lien, ib. Nor a hill of exchange, ib. Though with a surety, ib. Nor a promissory note, ib. Whether negotiated or not, ib. Lien for an annuity, the consideration for an estate, though secured by bond or covenant, 381, 382 No lien, where the conveyance is in consideration of covenants i<> pay the

A bond taken by

purchase-money, 382

Where the conveyance

is

in

consideration of a bond,

ib.

Or the previous grant ol an annuity, ib. Or the grant of an annuity to be secured by bond. ib. Or a charge upon the capital of a company to the extent

of the purchase-

money, 383 An agreement by parol will discharge the lien, ib. Senible, may be discharged by accepting others as debtors, in place of the purchaser, when, ib. By accepting the solicitors employed in the sale as his debtors in lieu of the purchaser, when, ib. No lien where vendor suffers one of several co-trustees to retain purchasemoney, 384 Nor where the purchase-money is to be paid after a re-sale, ib. Nor where a totally distinct and independent security is given, ib.

As a transfer of stock,
circumstances,

ib.

Or mortgage on another estate, 384 But senible, the intention to give up

ib.

lien

must be

clearly implied from the

No

lien

where bond given

ib.

for

unpaid purchase-money and a mortgage on

part of the estate,

Where mortgage
rest, ib.

is taken on part of the purchased estate, for unpaid purchase-money, and a note for the remainder, lien does not extend to

No

lien, in preference to the mortgagee on a re-sale, where there has been a mortgage to raise the purchase-money, with the concurrence of the vendor, 385 Lien lost as against mortgagee by the execution of deed to enable purchaser to mortgage, ib. By the execution of a deed as a condition to the receipt of a legacy, ib.

Is assignable, ib. Even by parol, ib.

Subject to prior incumbrances, ib. Bequest of money due on, is within the Mortmain Act, ib. Descent of estate contracted to be sold to heir-at-law ol inteste vendor, ib. Heir-at-law a bare trustee, ib. Vesting order made when heir-at-law an infant, 386 Judgment against vendor enforced against, when, ib. Legal personal representative of heir can now convey, ib. Marshalling for, 386, 387 Vendor's lien binds estate in the hands of the purchaser and of his heirs, 387
,

Of volunteers, ib. Of purchasers for valuable consideration, with notice, But not in the hands of purchaser without notice, ib.

ib.

Notice of the title of the vendor is not notice of the lien. ib. Nor is the vendor's remaining in possession as lessee, where he has given a receipt tor purchase-money, ib. Retention of the title-deeds by vendor, when notice of, ib.

617

1182

INDEX.
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[*]

pages. ]

V ENDOR'S

LIENcontinued.

Restriction of constructive notice by the Conveyancing Act, 1882, 388 Registration of memorandum of unpaid lien not requisite in register

county, ib. Lien of vendor in register county

for, ib.

over second purchaser, or mortgagee, ib. L'nless the equity of second purchaser, or mortgagee, be better, ib. As where receipt is endorsed on purchase deed and title deeds. delivered to purchaser, or mortgagee. 389, 390, 391 Receipt for consideration in body of deed, now sufficient, 391 Sufficient evidence of payment in favour of subsequent purchaser, when, ib. Assignees in bankruptcy, or ior the benefit of creditors, take subject to, ib. Though they have no notice, 391 Vendor who had taken security compelled to elect to proceed either at law
or in equity, ib.

Memorandum of, now registered in the county of York, ib. When legal estate is outstanding, equitable lien will have precedence

Not being an express

when,
ib.

trust

may

be barred by statue of limitations,

be taken out of operation of statute by sufficient acknowledgment, :;i)l And will then be enforced, ib. Not a charge by way of mortgage within Locke King's Act (17 & 18 Vict. 392 c. 113) Made so by 30 & 31 Vict. c. 69, ib. Secus, in the case of the lands of an intestate, ib. Made so by 40 & 41 Vict. c. 34, ib. Vendees' Lien. See Marshalling

May

VICAR OR RECTOR, How far they can

See

fell

timber, 858

Waste.

VOLUNTARY DEEDS AND CONTRACTS,

1.
of, 300, 301 Where there is a legal transfer. Will be enforced where legal interest transferred, 301, 302 Although it gets back into the hands of the donor, 302 Transfer by trustees to donor a breach of trust, ib.

Principle applicable to enforcement

Where there is an intention of making a gift, legal transfer valid, though not made with intention of carrying it out, 302, 303 Donor has a locus poenitentiaj after transfer, when trusts not finally settled,

303

Exceptions in the case of deeds for payment of creditors in tvhat cases. Transfer made upon trust lor payment of debts without the knowledge or concurrence of creditors, revocable, how far, ib. Not enforced at the instance of the creditors, ib. Third party cannot enfore execution of the trust of funds declared by
others, 304

Grant by Crown

to officer of state in trust for distribution, does not create a trust cognizable at law, ib. Officer mere agent for the Crown, ib. And in other cases when donor retains dominion over property, 305 Secus, where trusts for creditors have been communicated to them, ib. Or acted upon, ib. An assignment made to a creditor not revocable when communicated to

has dissented, ib. Surety, lin-tee to creditor's deed entitled to payment, though mere agency deed, 306
lie

him, Unless

ib.

it

were a

618

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ll

-'5

pages.]

VOLUNTARY DEEDS AND CONTRACTS

continued. Doubtful when trust has been communicated to some creditors can be revoked as to 01 liers, ih.
it,

whether

it

Creditor subsequent to the deed, and not a party to

trust, 306 Seciis, where

not a cestui que

one creditor is party to a trust, deed, ib. Or in the ease of many creditors, ib. Although the deed was executed by the creditor voluntarily, ih. Creditor not necessarily excluded, who by accident does not execute deed
within time limited, ib. [fhe act under, or on the faith ol it, or acquiesce in it, ib. Secus, where he lias not performed fair conditions of deed, oU7 Nut allowed to disturi) dividend already made, ib. Nor allowed to take any benefit under deed, ib. Unless he lias performed the fair conditions thereof, ib.

Or has acted inconsistently therewith, ib. Effect of delay or of refusal by creditor to execute deed, ib. Of setting up adverse title, ib. Principle upon which creditors' deeds are revocable do not apply to deeds in favour of objects of settlor's bounty formerly, ib. Nor where trusts come into operation on only settlor's death, ih. Whether mere agency deed not acted on revoked by death of settlor, ib. Resulting trust for settlor, when, 308 Creditor acquires no greater right to enforce deed by death of settlor, ib. Assignee may take steps to recover property though no creditor knows of
assignment,
ence,
ib.

ib.

Voluntary transfer upon trusts

for

creditors

when

a fraudulent prefer-

When

Where a

an act of bankruptcy, ib. creditor can levy execution against property vested

in trustees for
ib.

creditors, ib.

Trust deeds for the benefit of creditors unless registered not evidence,
2.

Declaration of trust. Settlor, retaining legal interest, and constituting himself a trustee, trusts will be enforced, 308. Declaration of trust relating to land must be in writing, 309 Parol declaration of trust of personalty sufficient, ib. It must, however, be clear, 310 As t<> what will amount to declaration of trust, ih.

the

Lord Cranworth's dictum in Scales v. Maude wrong, ib. Consent by married woman before commissioners to transfer to her husband does not amount to a deelarat ion of trust, ih. And she may redact before transfer, ih. .Mere expression of intention to divide property does not amount to a declaration of trust, ih. Invalid will cannot lie enlarged into a declaration of trust, ')] Declaration of trust by equitable owner of chose in action sufficient, ib. So, also, an assignment to the trustee by equitable owner or a direction by him that they should hold upon trust for volunteers, ih. Semble, not essential that trustee should accept trusts. 312 Notice of declaration of trust to cestui que trust not necessary, 313 Man may create a voluntary trust in favour of his wife, ib.
1

By means oi trustees, ib. By Constituting himself a

trustee,

ib.

Trustee not now necessary, ib. Evidence to establish gift musl be clear, ib. Mere declaration of intention not sufficient,. ib. Presents from husband to wife are for the separate use of the wife, when,

ib.

G10

llS-t

INDEX.
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[*]

pages.

VOLUNTARY DEEDS AND CONTRACTS continued.

Declaration of trust by owner of property which he gives by will invalid,

when,

ib.

Imperfect gift as distinguished

from a dectaration of

trust.

Imperfect

gift

not supported as a declaration of trust, and will not be en-

forced, ib.

As when assignment made of shares by an instrument not capable of transferring them, ib.

An

informal assignment of a bond, 314

shares, ib.

Of turnpike road bonds and

When
And

time to register a deed allowed, 315 Assignment of sum secured by a legal mortgage, without the land incomplete, ib.

3.

cannot be enforced, ib. Inclination by some judges to hold an imperfect assignment to amount to a declaration of trust, ib. Law settled contra by Sir G. Jessel, M. R., in Richardson v. Delbridge, 18 L. R. Eq. 11, 315, 316, 317 Assignments of legal acid equitable choses in action or in trust for volunteers
valid.

Mere assignments of choses

in action, though no legal interest passes, supported in favour of volunteers, 317 As of a reversionary interest in a fund vested in trustees, ib. Of a policy of assurance, 318, 319 Of a debt, 319 Remarks of Lord Langdale in Ward v. Audland, 8 Beav. 201, and of Sir L. later auShad-well in Beatson v. Beatson, 12 Sim. 291, inconsistent with thorities, 319, 350 Semble, decision of Sir J. Wigram V.-O, in Meek v. Kettlewell, overruled by Kckewich v. Manning (1 DeG. Mac. & G. 176), 320 Voluntary assignment of reversionary chose in action valid, ib, Semble, not essential that equitable voluntary assignment of a chose in

action should be by deed, ib. negDistinction, when settlor having power to compel trustees to assign, lects to do so, 321, 322, 323 Whether notice of an assignment of a chose in action legal or equitable essesential
to its completion.

to its Notice of voluntary assignment to trustees or debtors not essential validity, 323 But donee has no remedy against them on transfer or payment without
notice, ib.

As between volunteers notice does not affect priorities, 323 when, Priority gained by subsequent assignee for value in giving notice, 324 Policies of life assurance by statute made assignable at law,

ib.

Also policies of marine assurance, ib. And choses in action of bankrupts, ib. Debt or legal chose in action made assignable under Judicature Act, 18/3, 324 But assignment must be in writing, ib. And not purporting to be by way of charge only, ib. And express notice must be given to debtor, ib.

whom assignor would have been entitled to receive debt, it). Accruing debt assignable under Act, ib. Notice after the death of assignor sufficient, ib. valid. Transfer of a mere equitable estate, in land in favour of volunteers, when Held by Rnmilly, M. R. in Bridge v. Bridge, 16 Beav. 315, that voluntary transfer of equitable interest in land is invalid, 325 Bridge v. Bridge, doubted by Lord St. Leonards, ib.
620

Trustee, ib. Or person from

INDEX.
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[*] pages.]

1185

VOLUNTARY DEEDS AND CONTRACTScontinued.

By Wood, V.-C. ib. Semble, invalid only where debtor has legal estate, ib. Or can call for a conveyance from trustees, il>. Valid where settlor cannot call for conveyance of outstanding legal estate,
ib.

Complete trust not revocable by

settlor,
1

when.

Complete trust not revoked by bd (sequent voluntary assignment, 32G Save under a power reserved to settlor, ib. Immaterial thai legal estate gets back to settlor, ib.

By

accident, ib.
ib.

Or breach of trusts, ib. Voluntary trust subject to debts and legacies defeated by leaving debts, Or legacies, ib. Voluntary instrument not rendered invalid by retention of settlor, il>.

Agreement or covenant to settle in favour of volunteers not enfora d. A mere voluntary contract or covenant to transfer property never enforced,
ib.

to forgive a debt, 327 Covenant to .surrender copyholds not enforced, ib. But agreement to stand possessed of them in the meantime may be, ib. Voluntary agreement or covenant supported by meritorious consideration,

Or

ib.

Not enforced against settlor himself, ib. Might formerly have been enforced as against subsequent volunteers under a settlement, 327, 328 As against devisee, 328
Legatee,
ib.

interfere against such persons claiming on an equal meritorious consideration, ib. Unless they were already provided for, ib. Settled now that voluntary agreement or covenant cannot be enforced against such volunteers, ib. Even though otherwise provided for, ib. Agreement now would be enforced against creditors of a purchaser from the settlor, ib. Volunteer entitled to property under an imperfect settlement by outlay of money may become a purchaser when, ib. And call for a conveyance of the legal estate, ib. Executor// contract when volunteer can take benefit thereunder. Volunteer taking a benefit under an executory contract cannot enforce it, ib. Stranger cannot enforce covenant which two parties for value have entered

Or heir-at-law, 328 But Court would not

into in his favour, ib.

1.

2.

Exception. Contract in a marriage settlement enforced in favour of children of the marriage, 328 Covenant of a widow on a second marriage in favour of children of the first marriage enforced, 329, 330 Secus, in case of a covenant by a husband in his second marriage in fivoui of his children by the first, 330 Cestui qui trust of sum purchased by his trustee can proceed against
vendor,
ib.

3.

4.

Upon the usual indemnity to the trustee or in his own name. ib. Where the status of a third party is altered by a contract between two
others, ib.

5.

when contract has been abandoned before status is altered, ib. Where mutual contract in a marriage settlement extends to parties not
Secus.

within the marriage consideration,

ib.

021

1186

INDEX.
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[*]

pages.]

VOLUNTARY DEEDS AND CONTRACTS continued.

In the case of executed
331
trust,

trustees cannot part with fund of settlement,

And the Court will enforce it on their behalf, lb. On an application by a person from whom consideration moves,
carried into effect, ib. Even those in favour of volunteers, ib.
Effect of

all trusts

bonds and covenants for payment of money to volunteers. Equity will give effect to a valid legal obligation, 333 Volunteer may prove bond against assets of obligor, ib. Or even a promissory note, ib. But will be postponed to debts by simple contract, ib. Voluntary bond preferred to interest payable under 46th Order of August,
1841,
ib.

And
Even

to legacies, ib.
specific, ib.

Issue directed as to whether bond is voluntary or for value, ib. Assignee for value. of voluntary bond ranks as a specialty creditor, 333 Trust declared upon covenant to pay a sum will be carried into effect, ib. Although trustees refuse to sue on the covenant, ib. And Court will allow cestui que trust to use names of trustees at law, ib. And payment will be decreed in equity where proceedings at law are not
necessary, 333, 334

Covenantee under a voluntary covenant for a further assurance, allowed to prove as creditor in an administration suit, ib. Trust for payment of debts includes voluntary bonds, when, ib. Voluntary deeds when void against subsequent purchasers. Voluntary conveyance of real estate void under 27 Eliz. c. 4, against subsequent purchasers for valuable consideration, 324 And not merely conveyances made with intent to defraud, ib. Exception of conveyance in favour of a charity, ib. Void as against subsequent purchaser, ib.
Mortgagees,
ib.

Legal, Equitable, ib. By deposit of title-deeds, Lessees,

ib.

Except lessees without

As against grantees

Parties taking As in consideration of intended marriage, ib. Or in consideration of ante-nuptial articles, 335 Purchase with notice of a voluntary settlement, valid, ib. Settlor not restrained from selling estate, ib. Volunteers entitled to execution of trust until sale, when,

fine or rent, ib. in consideration of release of right, ib. under settlements for value, ib.

ib.

can set aside a prior voidable conveyances, ib. Mortgage when fraudulent and void under the statute, ib. How far voluntary conveyance defeated by conveyance or settlement for

And

value, ib.

Cannot be defeated bv a subsequent judgment creditor, ib. Husband of a volunteer cannot be treated on marriage as a purchaser, ib. Nor a person claiming under a post-nuptial settlement, ib. Unless made in pursuance of ante-nuptial articles, ib. And articles musl be binding, ib. Conveyance by heir or devisee of settlor cannot defeat his voluntary settlement,
ib.

will Sale by mortgage under power created before voluntary settlement, not have effect of a sale by settlor, 336

622

INDEX.
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pnfriiiL'

L187

refers to the [] pages.]

VOLUNTARY DEEDS
Ami volunteer
will

\.ND

CONTRACTScontinued.
to

be entitled

proceeds after paymenl

that,

ot

the mort-

gagee, ill. Collateral evidence admissible to executed for value, ib.

show

deed apparently voluntary was

Onus

of showing lies on party sustaining deed, Lb. Conveyance voluntary in creation, may become valid ex
A.s bj

post facto, ib.

voluuteer conveying, in consideration of marriage, 336 Or for other valuable consideration, ib. Settlor cannot enforce specific performance of contract to sell, ib. Except as against a willing purchaser, ib. Purchaser from settlor can do so, ib. Subsequent purchaser can by action recover land from volunteer, May by action complete purchase, ib. Or mortgage, ib. And set aside the voluntary deed, 337 Volunteer proper party to-the action, ib. Settlor cannot be a co-plaintiff with purchaser, ib.

ib.

Or mortgagee,
Purchaser
cancelled,

ib.

may take
ib.

proceedings to have voluntary deed delivered up to be

as defence,

Volunteer

may

set

up

inadequacy of consideration by alleged

purchaser, ib. Declarations of mortgagor to prove payment of mortgage money not admissible alter his death, ib. On a sale by the voluntary settlor volunteers under settlement have no equity against the purchase-money, ib. Nor if the voluntary settlement has been revoked under a power, ib. Conveyance in trust to nay creditors a voluntary deed. when. ib. So a post-nuptial settlement, ib. Unless made in pursuance of a binding ante-unptial agreement, ib.

And

not merely by parol, ib. agreement of an infant be not. duly ratified after he came of age, ib. Post-nuptial settlement is for value, if husband or wife give up something,
If the

338 Concurrence of husband and

-wife to alterations made by a post-nuptial settlement constitutes a valuable consideration, ib. Recus, where the wife is entitled to property settled to her separate use. ib. Concurrence of tenant, in tail in remainder in disentailing estate constitutes a valuable consideration for a settlement, ib. Mere separation deed voluntary as against creditors of husband, ib Or his subsequent purchasers and mortgagees, ib. ^, juration deed rendered \alid by covenant to indemnify husband against

wife's debts, ib.

Or a relinquishment of alimony, A compromise of suit, 339

ib.

of a doubtful right, ib.

under -27 Eliz. Small consideration sufficient to support d As a covenant to indemnity grantor against a mortgage, ib. Debts in connect ion with a farm, ib. A provision by a stranger for payment of set llor's debts, ib. Or advance by him to pay debts of settlor, ib.
1

c.,4, ib.

To lake the grantor

to live with grantee, ib. Semble, conveyance of leaseholds not necessarily for value. 340 Authority of Price v. Jenkins (5 Ch. D. 619) doubtful, 340 Convevance of freeholds not rendered for value by inclusion of leaseholds,
ib.

Covenant by voluntary grantee to build a house on land eration when, ib.

raises no

consid-

G23

1188

INDEX.
[The paging refers to the
[*]

pages.]

VOLUNTARY DEEDS AND CONTRACTS continued.

Marriage in an ante-nuptial settlement sufficient consideration for husband and wife, ib. And issue of marriage, ib. Will not extend to collaterals, ib. Unless tbere is other consideration irrespective of marriage, ib. Or when settlement is made by the assistance of third parties, 341 Or where there are limitations in a settlement by a widow in favour of children by former marriage, when, ib. Same considerations applicable to issue of second marriage as to collaterals, ib.

Limitations to younger brothers of settlor rendered for value by a a substitution of securities, ib. Limitations to issue male of second marriage, invalidated by being interposed between limitations to sons and daughters of the marriage, ib. Secret mortgage without knowledge or pressure on part of mortgagee void

under

statute, ib.

setting aside voluntary conveyances, ib. Chattels personal do not come within 27 Eliz. c. 4, 342 Voluntary settlement of chattels not defeated by subsequent sale, ib. Voluntary settlements when void as aejainst^creditors. Voluntary settlement of real or personal estate set aside under 13 Eliz.

Forms of decrees

c.

5, ib.

Creditor must show intent on the part of settlor to delay, hinder, or defraud creditors, ib. Exception in favour of conveyances for some consideration and bond fide, ib. And to persons without notice of intended fraud, ib. Statute not applicable to things which could not be taken in execution, ib.

As

stock, ib.

bond, ib. Other choses in action, ib. Copyholds, ib. Except liable to debts under custom, ib. Such assignments void against creditors under statute in connection with Insolvent Debtors Act, ib Result same in connection with assignor's death, ib. But now cash, stock, and choses in action may be taken in execution and are within statutes, ib. Also bank notes, ib. Policy of assurance, ib. Copyholds, ib. Intent to delay, hinder, or defraud creditors may be actual and express, 342, 343 Or implied from large amount of debts ofsettlorwheu settlement made, 342, 343 Not implied from subsequent unexpected loss, ib. Settlement void where nothing left for payment of debts after deducting subject of settlement, ib. A fortiori, if everything was put into settlement, ib. Mere fact that settlor owned some debts not sufficient to render deed void,
ib.

to prove settlor's absolute insolvency when he executed deed, 343 Deed valid against creditors, if unsettled property be sufficient to pay debts, ib. Though settlor be in embarrassed circumstances, 344 Deed invalid where there is an actual intent delay and hinder creditors, ib. And it is immaterial whether settlor were indebted or not, ib. As where he settles all his present and future property, ib.

Not necessary

t)24

IM.KX.
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t.>

1189

I ]

the

pi

VoU'NTAI.'V DEEDS

AND CONTRACTScontinued.

Immaterial in case of a trader that settlement

is trifling compared with extent <>f business, ib. Dictum of Lord WestburyinSpireUy. Willows, iibDet;. .Jo. ,v Sm. :j(rj to solvencyof the debtor after making thesettlemenl disapproved of, n>. Assignment to hinder and defeat future creditors, void, Lh. Subsequent and- antecedent creditors Let in together when voluntary deed

set aside, ib.

Subsequent creditor, if there be :i prior one. has same right to commence an action, ib. Semble, difficult to do so if prior creditors all paid, ib. But voluntary settlement may be void as against subsequent creditors though former creditors paid, 345 As where deed has been executed to defeat plaintiff in an action, ib. Or creditor expecting to he paid a large debt. ib. Or in contemplation of settlor going into trade Lb. Especially if it were hazardous, ib. And about which he knew nothing, ib. Onus in such cases lies on settlor to show that he was in position to make a
settlement,
ib.

solvency were material, ib. Difficult to impeach a devil as being fraudulent against future creditors when no intention to defeat present creditors, ib. Statute applicable if debts were contracted by person from whom settlor. derived property, ib. Voluntary deed executed pendente lite to defeat process, void, ib. Or when person knows a decision is about to be pronounced against him, ib. Secus, where conveyance is made bond fide for payment of some creditors,

Even

if

ib.

Though

there

is

a stipulation

that settlor's

possession should terminate

upon an execution or sequestration, ib, Anti-nuptial settlement by man indebted at the time, not void against
creditors,
:!l(i

Though
Secus,

wife aware of indebtedness, ib. where wife is aware that settlement

is

scheme

to defeat cred-

itors, ib.

Or that

settlor has committed an act of bankruptcy, ib. Privity of wile in fraud must be clear, ib. Limitations in favour of collaterals in settlement generally void against
creditors, ib.

Or covenant by trader to settle all after-acquired property, ib. Appointments under ante-nuptial settlement when invalid, ib. Or under a settlement made between a father and son, ib.
Post-nuptial settlement by insolvent settlor, void as against creditors, ib. in pursuance of verbal agreement before marriage, ib Unless there is some other valuable consideration, ib. As payment of settlor's debts, ib. Though he concealed one. :M7 Or loan to pay other debts, ib. Secus, where debt is barred by the Statute of Limitations, ib. Post-nuptial settlement to avoid paymenl of creditors invalid, ib. Though settlor not indebted, ib. Mere deed of separation void as against creditors, ib. Unless supported by valuable consideration, ib. Settlement apparently voluntary may be supported against creditors by consideration aliunde, ib.

Though made

Proof must be clear, ib. Trust deed for payment of creditors equally not within
5, ib.

Stat. 13

Eliz.

c.

* 40 WHITE ON EQUITY.

625


1190
INDEX.
[The paging refers
to the [*] pages.]

VOLUNTARY DEEDS AND CONTRACTScontinued.

for such as come in and execute the deed, 348 Secus, if there are provisions in the deed leading to defeat or delay creditors invalid, ib. 2 Vict. c. 110, not void Purchase in the name of a wife or child prior to 1 against creditors, ib. Secus, alter passing of Act, ib. Gift of money or bank notes to children tending to defeat or delay creditors invalid, ib. Of an annuity or bond, ib. Creditor under a voluntary bond entitled to benefit ot statute, 13 Eliz. c.

Or

&

5,

349

Creditor

may preclude himself or his representatives from impeaching voluntary deed, ib.
concurrence,
ib.
ib.

By

Or acquiescence,

Inquiry directed as to acquiescence, ib. Purchaser from volunteer preferred to general creditors, when,

ib.

Any

creditor

may commence, an

action against settlor to set aside a settleib.

ment under the Statute, ib. Not affected by subsequent insolvency of settlor, Ought to be on behalf of all the creditors, 349

After bankruptcy trustees of bankrupt proper parties to commence action, ib. Fund under void deed paid into court, in administration suit, how dealt with, ib. Effect ot delay on equitable grounds, not applicable to legal right of creditor to set aside deed under statute, 350 Not necessary that creditor to set aside deed should have a lien, ib. Or charging order, ib. Mortgagee of chattels only comes in as a general creditor, ib.

Semble, defendant cannot retuse to anwer interrogatories making him liable to penalties under 13 Eliz. c. 5, 351 Similar penalties under 27 Eliz. c. 4, ib. Settlor may abandon view of defrauding creditors, when, ib. And recover property assigned for that purpose to trustees, ib. Sect. 47 of the Bankruptcy Act. 1883, more stringent than 13 Eliz. c. 5, 351 How far it differs from sect. 91 of the Bankruptcy Act, 1869, 351, 352
Decisions as to the applicability of the latter section, ib. Non-interference of Equity against bond fide voluntary instruments. Voluntary deed void against creditors subsists for other purposes, ib. Equity will not set aside voluntary deed or agreement not obtained fraud, 353

by

Voluntary executory gift cannot be rectified, ib. Unless donor consent to make a new instrument, ib. Secus, if trust be executed, ib. Or if after settlor's death it appears instrument was not prepared according to his intention,
ib.

Donee takes

gift subject to conditions

imposed by the donor, 354

And

also subject to any mortgage, ib Cannot call for indemnity from personal representative of donor, ib. Though donor has covenanted to pay mortgage debt, ib.

VOLUNTARY SETTEMENT,
Not reformed as against the grantor, 51 Nor against purchasers for value with notice, Or mortgages, ib.
ib.

WARD.

See Guardian and Ward. AVARD OF COURT. See Equity to a Settlement.

626

INDKX
[The paging rofers totheCJ pages.]

1191

WASTE,
Tenant
(or life

when

directed to be without

executory

trust. 47,

Impeachment
VNI

in the case of an
3

>'<<

].\ i:<

>

EXECUTORY TBUSTB,

of Lord St. Leonards on Garth v. Cotton, the Leading case as to, 851 Construction of the words " without Lmpeachmenl of waste, voluntary waste excepted," 351 Remarks of Sir John Romitty, M. R., on Garth v. Cotton, ib. Clause against waste rejected as repugnant to power, when, ib. Importance of the limitation to trustees to preserve contingent remainders with reference to, 851, 852, 85:;. 854

Remarks

1.

Waste at law.

At law what amounts to, 854 Limited owners punishable for, 854 As tenants for life by operation of law, Tenant in dower, ib.

ib.
*

By

the curtesy,

ib.

Other tenants

for life, ib.

for years, ib.

In felling timber by tenant for life or years, ib. What, are timber trees, ib. Trees not being timber, ib. What trees under twenty years of age might be felled by tenant for 854, 855 On timber estate, 855

life,

Underwood, ib. Tenant for life cannot, under Settled Estates Act. 1882, cut down timber planted as an improvement, where, ib. When committed by his digging for gravel, ib. For lime, clay, brickearth, stone, ib.
For metals or coal, 855, 85G tenant for life can work mines already opened, 856 "When termor can do so. ib. Semble, no distinction between a mine and a quarry, ib. Power .to tenant for life under Settled Land Act, 1882. to grant leases whether involving waste or not, ib. In the ease of mines or minerals leased under the Settled Land Act. Iss2, unless contrary intention indicated in settlement three-fourths of rent set aside as capital where tenant for life is impeachable for waste, ib. When otherwise one-fourth, ib. Residue of rent to go as rent and profits, ib. As to what is a contrary intention, ib. Tenant for life executing improvements under Settled Land Act 1882, lia-

When

ble to damages when, ib. Not liable to consequences of. waste when, ib. Power to do and make certain acts and works for repairs, 857 To get and work freestone, limestone, clay, sand, and oilier substances, To cut down and use timber, ib.

ib.

What

Excepl timber left standing for shelter or ornament, trees authorised to be foiled by leases under
Estates Act. 1877, ib.

ib.

sect.

4 of the Settled

Timber cannot be

felled by equitable tenant for life without consent of trustees ib. of remainderman to compensation ou1 of rents of the tenant for life, Right

Even as against his incumbrancers, ib. Powers of tenant for life without impeachinenl of waste, ib. Of trustees made unimpeachable for waste, ib. Powers of trustees in the case of infants under the Conveyancing and Law
of Property Act, 1881, to
fell

timber,

ib.

627

1192

INDEX.
[The paging refers to the
[*]

pages.]

WASTEcontinued.
Cut underwood, ib. Continue working of mines and minerals, ib. And quarries, 857 Trustees not to commit waste, 858 And to cut such timber only as infants could if of full age, Mode of investing produce of sale of timber and underwood, Powers of tenant in tail after possibility of issue extinct, ib.

ib. ib.

Of

By

his grantee, ib. rector or vicar, ib. May fell timber for necessary repairs to vicarage, buildings,
ib.

and premises,

But not

for the

May

sell

purpose of a general repairing fund, timber to buy other timber for repairs, ib.

ib.

may obtain an injunction against a rector or vicar to restrain felling timber, when, ib. And for an account, ib. And for sale of timber if felled but not sold, ib. And to bring proceeds into Court, ib. Ordinary may take proceedings to prevent against patron and incumbent,
Patron

when, ib. Remedies at law. for waste, 859

Insufficiency
2.
of, ib.

Interposition, of equity

where there was no legal remedy.

Interposition of equity to prevent, where there was no legal remedy, ib. Where a second tenancy for lrfe was interposed between tenant for life committing and remainderman in fee, ib. Ground landlord may have an injunction to restrain against underlessee.-^filt Waste by heir-at-law formerly prevented in the case of an executory devise, ib.

According to recent decisions, equitable waste only prevented, ib. By mortgagee in fee in possession, ib. Mortgagor in possession, 860, 861 Power of mortgagee by deed under the Conveyancing and Law of Property
Act, 1881, to cut and fell timber, ib. But not timber planted or left standing whether for shelter or ornament, To contract for any such cutting or sale, within what time, ib. As to permissive waste, ib. Not prevented in equity, ib.
ib.

Liability for under express obligation or condition to repair, ib. Legal liability for permissive waste, ib. Liability under Settled Land Act, 1882, s. 28, of tenant for life to maintain and repair improvement under the Act of 1882, 861, 862
3.

Equitable waste.

Tenant
to

for life, "without impeachment of waste," not allowed by equity commit humorsome or malicious waste, 862 As by pulling down a castle, or mansion-house, or farm-house, ib. By grubbing up wood, ib. Malicious waste by defendant' without privity in possession, restrained, 864

By

Tenant

party claiming adversely against plaintiff in possession, 864 for life without impeachment of waste restrained from committing equitable waste by felling timber planted, or left standing for ornanuin
or shelter, ib.
if

Even Same

planted by tenant for life himself, ib. rule applicable to tenant in tail after possibility of issue extinct, Principle on which the Court acts, 865 Has been extended to timber at a long distance from a house, ib. To rides or avenues through woods far from house, ib.

ib.

628

INDEX.
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to tUo [*] pnfjos.
]

1193

WASTEcontinued.
But not so as
repairs, ih.
to protect

woods through which they pass from being

ca1 for

to clumps of trees planted two miles from the house, though the lands of other intervened, ih. And to trees planted to exclude objects from view, ih. Circumstances may render cutting of ornamental timber justifiable, Lb. As to produce uniformity when trees had been blown down by tempest, ib. When they impede or injure growth of other ornamental timber, 866 When they are prejudicial to healthiness of a house, Lb. But the onus of proof will lie on the persons felling the timber, ih. How far ornamental timber will be protected w hen mansion-house is pulled

Extended

down, 866, 867 Tenant for life without impeachment of waste will he restrained from cutting saplings not proper to be felled, 867

Underwood of insufficient growth,

equitable waste,

ib.

But not from felling timber merely because it is not full-grown, ib. Tenant in tail, after possibility of issue extinct, is within the principle of
ib.

Equitable as well as legal waste restrained

if

one act

of,

established, ib.

Forms

ot orders restraining equitable waste, N(>s

Trust for preservation of ornamental timber enforced, ib. But a Court of equity will not interfere with tenant in tail, 868, 869 Semble, even when an infant, 869 Duty of his guardian or trustee in felling timber, ib. Whether timber felled on estate of an infant is realty or personalty, ib. Tenant in tail restrained from barring his issue, or those in remainder with reversion to the Crown, may commit equitable waste, ib. Except when bound to maintain the mansion-house, ib. Legal right to commit equitable waste abolished by the Judicature Act. 1875, 870
4.

Whether an account is incident only to an injunction. Semble, that it is, where there is a legal remedy for waste by felling timber, ib.

Where

the waste is equitable, or there is no legal remedy, an account will be granted without an injunction, ib. And in all cases of waste in mines, 871

And in cases of equitable waste, ih. Distinction between remedy in trover and in equity, 871 Account granted on the pulling down mansion-house by tenant for out impeachment of waste and sale ot' materials, ib. Not when old materials are used in building a new house, ib. Arbitrary charge in accounts when made, ib.
5.

life

with-

Tenant
<

Waste by tenants in'common. in common not restrained from committing ordinary waste, Equitable waste, ib. r from working coal mines, ib. Restrained from committing destructive waste. 872 Or ordinary waste under special circumstances, ib. After a decree for a partition, ib. Not restrained after such decree from selling hay and turnips off the

ib.

soil. ib.

6.

To whom timber severed by act of God or man belongs. First owner of the inheritance entitled to timber, severed by act of God, as a tempest, during time ot' tenant for life impeachable for waste, ib.

By

a trespasser,

ib.

Or by tenants, ib. Even though there be an intervening without impeachment of waste, ib.

estate of freehold in a tenant for life

629


1194
INDEX.
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[*]

page?.

WASTE

continued.

Also when waste is committed by a tenant ibr life, without collusion with owner of the inheritance, 872, 873 Opinion oi Lord Romilly, M. E., contra, 873 Tenant for life entitled to such trees blown down by tempest as he might

have cut, ib. Windfalls of larch trees (not timber) how dealt with by the Court for the benefit of the parties interested therein, 873, 874 Semble, first owner of the inheritance entitled to proceeds of ornamental timber improperly felled, ib. By tenant for life impeachable for waste, ib. Or his assignees in bankruptcy, ib. Opinions of Lord Romilly, M. E., and Jessel, M. E., contra, 875 Equitable tenant for life, unimpeachable for waste, entitled to proceeds of ornamental timber properly cut by him, ib. But the Court might restrain him from cutting such timber except under
its

supervision,

ib.

May
ib.

not be right to cut

down ornamental timber simply because decaying,

7.

Proceeds of timber felled by tenant for life and remainderman in collusion settled, 875, 876 Or by tenant for life being first vested remainderman in fee, 876 Secus, if he does not collude with himself in the two characters, ib. Allowance for permanent improvements in taking accounts when made, ib. Produce of timber felled by order of the Court or trustees. Proceeds of timber felled by order of the Court, how dealt with, ib. Interest of proceeds to be paid to tenant for life, ib. Though impeaceable for Avaste, ib. Dowress being entitled to one-third of the income 876 The capital to be transferred to first owner of the inheritance, ib. Or first owner for life without impeachment of waste, ib. Capital is considered to be realty, ib. Heir of first owner of the inheritance entitled thereto, unless he converted
it into

personalty, ib.

And

not his personal representatives, ib. Eule the same when timber has been felled by trustee and the Court has

adopted his act, ib. Also where proceeds of timber felled by an equitable tenant for lite impeachable for waste have been paid intoCours, ib. Tenant for life impeachable for waste may obtain consent of trustees or order of Court to cut and fell ripe timber under Settled Land Act, 1882, ib. Three-fourths part of the nett proceeds of the sale to be set aside as capital under the Act, ib. And one-fourth part thereof as rents and profits, ib. Trustees must pay to tenant for life as income proceeds ot underwood, S7 Of timber cut periodically, ib.

Of gravel, when, As to turf, ib.

ib.

Per Chelmsford, L. O, Court never adopts act of tenant for life cutting timber without authority, ib. Eecently done where the cutting of the timber was in a due course ot management, ib. Proceeds of ornamental timber felled by order of the Court, how dealt

Power
8.

with, ib. of Court under the Leases and Sales of Settled Estates Act over the proceeds of timber not being ornamental, ib. Remedy for waste, when and how barrel Remedy for waste, when and how barred by the Statute oi Limitations,
878, 879

630

INDIA.
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I'iik'i'i^'

Jl'JO
]

refers to the ["] pagea.

WASTE
When
[f lie

continued.

the tirst owner of the inheritance was not under disabilities, 879 were an infant, ib. And tenant for life committing waste became his administrator, ib. Tenant for life, when hound, if waste were committed by tenant lor life also first owner of the inheritance, ib.

Remainderman

in fee

when bound

in ease ol equitable

waste, 87'J

Present period of limitation under the Real Property Limitation Act, 1874, 880 Time dues not run when tenant for life treats proceeds of waste as a trust
fund. ih. Effect of delay in taking proceedings against waste, ib.

Of acquiescence ib. Of a release, ib. Of abandonment, ib.

WIDOW,
When put
to her election between dower and gifts conferred upon her by her husband, 420. Sec ELECTION. When entitled to dower out of proceeds of timber, 877 In mines opened after her husband's death, ib.

WILLS, Executory trust CUTORY Teusts.

in,

how

construed, 28.

Sec

Executed and EXE-

End ok

Vol.

I.

White and Tudoe's Leading

Cases.

631

Phila.

Blackstoxe Pub.

Co.

(632)

aw LIBRARY

AA 000 818

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