Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUQLA5S BOARDMAN FinST DEAN OF THE SCHOOL \ By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 398.W58 1877 V.I A selection of leading cases in equity : 3 1924 018 844 443 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018844443 A SELECTION LEADING CASES IN EQUITY, BY FREDERICK THOMAS WHITE AND OWEN DAVIES TOOR, OP THB MIDDLB TSMPLB, BSQaS.i BABBI8TEK3-iLT-LAW. Wixi\ Annotations, CONTAINING HEFEEENCBS TO iMERICAN OASES, BY J. I. CLARK HAEE AND H. B. WALLACE. WITH ADDITIOITAI. NOTES AND EEFEKENOES TO AMERICAN DECISIONS, BY J. I. CLARK HARE. iami\ ^nwritan, ixm t^« |0ttrt^ %mUn ^iritton, IN TWO VOLUMES. VOL. I. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW'BOOKSELLERS AND PUBLISHERS, No. 535 CHESTNTJT STREET. 1876. Entered, according to Act of Congress, in the year 1876, BT J. I. CLARK HARE, In the Offlce of the Librarian of Congress, at Washington. Entered, according to Act of Congress, in the year 1859, BT J. I. CLARK HARE, In the Clerk's Offlce of the District Court, for the Eastern District of Peansylvanla. Entered, according to Act of Congress, in the year 1852, BT H. B. WALLACE, In the Clerk's Offlce of the District Court, for the Eastern District of Pennsylvania. Entered, according to Act of Congress, in the year 1849, BT T. & J. W. JOHNSON & CO., In the Clerk's Offlce of the District Court, for the Eastern District of FennsylTania. KIN» ti BAIED, PaiMTBRB, 607 Sansom Street, Philadelphia. PREFACE TO THE FIRST EDITION" OF VOL. I, The plan of this work was suggested by the very able volumes of the late Mr. John William Smith, which contain a selection of Leading Cases principally taken from the Com- mon Law Reports ; and it was thought that it might be use- ful to the profession to have, within a small compasS, a selection of Leading Cases decided in Courts of Equity. Each of the cases chosen will, it is believed, be found either to be frequently referred to in practice, or to enunciate clearly, for the first time, some important principle of equity. A chronological arrangement of the cases has not been observed, because it has been in the present, and may be in a subsequent volume, found useful to print together cases on the same subject, decided at diflferent periods. The notes, or abstracts prefixed to the cases, have occasion- ally, when inaccurate or defective, been altered ; and, in some instances, the arguments and judgment in the same case are taken from different reports. Thus, in the well-known case of Fox V. Mackreih, the arguments are taken' from Brown's Chancery Cases, and the judgment from Cox's Reports ; and in the celebrated case of Garth v. Cotton, (a complete report of which is not to be found elsewhere,) the arguments are taken from two different places in Vesey Senior's Reports, IV PREFACE. the judgment from Dicken's Reports, and the decree from Atkyn's Reports. In the notes, an attempt has been made to develop the principles laid down or acted upon in the cases, and to collect the recent authorities ; but as the nature of the work would not permit that the notes should be complete essays upon the different subjects treated of, they have been princi- pally confined to the points decided in the cases, to which, in fact, they are only intended to be subsidiary. It will be seen, that, in the notes, some cases of importance are stated at considerable length, and that when it was con- venient or practicable, the very words of the Judges have been preserved. Of imperfections and deficiencies in the notes, the Editors are by no means unconscious, but they venture to hope that the cases (the selection of which, from the great mass of the Equity Reports, was a matter of no small difficulty) will prove useful both to students and to those in actual practice. July, 1849. ADVEKTISEMENT TO THE FOURTH LONDON EDITION. In preparing this Edition, about two hundred pages of new matter have been added to the Notes. A very large number has also been added to the cases cited, which are brought down by the Addenda to the 19th of October, 1872. November, 1872. PREFACE TO THE AMERICAN EDITIOK In the American notes to this work, the range of discus- sion marked out by the English annotations, has usually been followed, as far as was practicable. In some instances, it will, perhaps, be found, that the field of investigation is more extensive than in the original work. It is narrower, in those cases, only, in which illustrations were not supplied by the American reports. It will be seen, upon the whole, that the jurisprudence of this country has developed an equity system, scarcely less comprehensive, or less complete, than that which has been established in England : and it is a conclusive testimony to the wisdom and practicable usefulness of the English Chan- cery, that, at the suggestions of experience, its scheme has been adopted, substantially, throughout a country, not in- fluenced by considerations of authority, but proceeding freelj-, in quest of essential justice, and under the guidance of a reason proud of its independence. The doctrine of Subrogation, in the learning of Principal and Surety, may be referred to, as an example, in which, among us, a more expanded and consistent application has been given to a settled and valuable principle of equity, and in which the sense of American Judges seems to have gained PREFACE. VU au advantage, even, over England's greatest Chancellor. Our rule, as to a feme covert's power over her separate estate, is more reasonable and satisfactory, than that prevailing in Eng- land ; where, the provision against anticipation admits, with- out fully controlling, the danger of the original principle. A few titles — such as Vendor's Lien, Equitable Mortgages, the Tacking of Incumbrances, and a Purchaser's duly to see to the application of purchase-money, — have not been received with much favor here, chiefly in consequence of the policy con- nected with our registration laws. There are some other subjects — such, for example as the Purchase of reversionary and expectant interests, illustrated in the great case of Chester- field V. Janssen— which, perhaps, from the rarity of settle- ments giving rise to such interests, have not often come be- fore our courts for adjudication, though the principles belong- ing to them, are perfectly well established in this country. In this edition some three hundred pages have been added to the American notes, and the authorities for the most part brought down to the present time. Philadelphia, April, 1875. LIST OF CASES REPORTED. AcKROYD V. Smithson (Resulting trust, on failure of the pur- poses for wliich conversion has been directed) . . . 11*11 Aleyn v. Belchiee (Fraud upon a power) 573 Ancaster (Duke oe) v. Mayer (Primary liability of personal estate to payment of debts — Exoneration) .... 881 Chesterfield (Earl of) v. Janssen (Post-obit securities — Catching bargains with heirs, expectants, and reversioners — Confirmation) 'T'lS CuDDEE V. RuTTER (Specific performance of agreements relating to personal property) 1063 Bering v. Earl of Winchelsea (Contribution between co- sureties) 120 Dyer v. Dyer (Purchase in the name of a child, advancement . — In the name of stranger, resulting trust) . . . 314 Elibank (Lady) v. Montolieu (Wife's equity to a settlement) . 623 Elliot v. Merryman (Liability of a purchaser to see to the ap- plication of the purchase-money) 74 Ellison v. Ellison (Voluntary trusts) Fletcher v. Ashburner (Conversion) Fox V. Mackreth (Purchase by a trustee for sale) Garth v. Sir J. H. Cotton (Equitable waste) Glenorchy (Lord) v. Bosville (Executed and executory trusts) 1 HuLME V. Tenant (Wife's separate estate) 679 Keech v. Sandford (Renewal of a lease by a trustee in his own name — Constructive trust) ..... .48 382 1118 188 955 LIST OF CASES REPOETED. PAGE Lake v. Ceaddock) ( . . . . 265 y (Joint purchasers) } Lake v. Gibson ) ( . . . . 264 Lego v. Goldwiee (Executed and executory trusts — Rectification of settlement by articles) 13 Lestee v. Foxceoft (Part performance of parol contract re- specting land) 1027 Mackreth v. Symmons (Vendor's lien for unpaid purchase- money) ...•.....• 447 Maesh v. Lee (Tacking incumbrances) 837 MiJEEAT ■!;. LoED Embank ("Wife's equity to a settlement) . 629, 634 NoYS V. MoEDATJNT (Election) 503 Pitt v. Mackeeth. See Fox v. Mackreth. PusBY v. PusET (Specific delivery up of chattels) . . . 1109 Rtjssel v. Russel (Equitable mortgage by deposit of title-deeds) 931 SoMEESET (Duke oe) v. Cookson (Specific delivery up of chattels) 1110 Strathmoeb (Ootjntess oe) v. Bowes (Fraud on marital rights) . 605 Streatfield v. Streatfield (Election) 504 ToLLET V. ToLLET (Defective execution of a power aided) . . 365 Ward v. Turner (Donatio mortis causS) 1205 INDEX TO THE CASES CITED IN THE ENGLISH NOTES. THE PAGES EEPEKKED TO ARE THOSE BETWEEN BEACKETS [ ]. PAGE Abbot V. Burton, . . .736 V. Gibbs, .... 60 Abbott V. Genigbt}', ... 42 V. Sii-iitton, . . .687 Aberaman Iron Works v. Wick- ens 324 Aberdeen Railway Company v. Blakie, . ^ . . . .151 Abney v. Miller, .... 45 Abrabal v. Bubb, 699, 706, 731, 732, 750, 757 Abraham v. Newcombe, . . 47i) Acheson v. Fair, . . . . 45 Ackroyd v. Smilhson, 880, 873, 886, 888, 893, 894, 895 . 284 . 527 Acraman v. Corbelt, Acton V. White, . V. Woodgate, Adair v. Shaw, . Adames v. Hallett, Adams v. Claxton, V. Clifton, ■V. Gamble, V. Meyrick, V. Bworder, Adamson v. Arniitage, Adderley v. Dixon, Addis V. Campbell, Adney v. Field, . Adseits V. Hives, . Advocate-General 256, 258 . 509 . 285 . 629 . 175 . 492 635, 644 . 164 . 517 791, 794 595, 609 . 2H9 . 690 V. 850 851 Affleck V. Affleck, Agar V. Mucklew, Agassiz V. Squire, Aguilar v. Aguilar, Ainsworth, Ex parte, re Goren, Airey v. Hall Ramsay's trustees, Smith, . 229, 221 . 813 . 395 477, 498, 502, 515 686 262 Albert Life Assurance Company, In re, 318 A 1 cock V. Alcook, . . . 508 Aldborough (Lord) v. Tyre, . 606 348, 328, Alder v. Fouracre, Aldrich v. Cooper, Aklridge, Ex parte, Aldridge v. Wallscourt (Lord), 648, Alexander, Ex parte-, . V. Brame, . v. M'Culloch, V. Young, . Aleyn v. Belchier, 377, 383, 391, 892, 395, 398, Allan V. Gott, Allday v. Fletcher, Allen v. Allen, . V. Anderson, V. De Lisle, V. Knigbt, . V. Papworth, V. Walker, AUerton v. Knowel, Alleyne v. Alleyne, Alt V. Alt, . Amis V. Witt, Amler v. Amler, . Amphlett V. Parke, Anandale v. Anandale, Ancaster (Duke of) v. Mayer, 630, 646, 649, Anderson v. Abbott, . 345, 368, V. Dawson, . V. Kemsbead, Anderton v. Cooke, Andrew v. Andrew, . V. Trinity Hall, V. Wrigley, . Andrews v. Hailes, Anelo-Danubian Company v. Rogerson, .... Anonymous, 24, 162, 204, 209, 215,' 243, 351, 375,442, 489, 510, 620, 628, 629, 738, 757, 783, 810, Anstruther v. Adair, . Antrobus v. Smith, . 266, 267, PAGE 50 5.S9 532 650 163 . 281 440, 477 . 527 889, 902, 687, 633, 81 400 654 471 668 357 113 623 485 515 476 231 782 930 846 903 857 657 375 495 695 636 811 350 ,87 49 819 858 469 373 xu TABLE OF CASBS. PAGE FAaE Anwyll V. Owens, . . . 749 Att.-Gen. v. Newcastle (Corp. of), 283 Apliu's Trust, Re, . . . 353 T. Parkin, . . 654 Appleton V. Rowley, . . . 513 V. Parnther, . 507 Archbold v. Howth (Lord), . 776 V. Potter, . 84 V. Scully, ... 47 V. Bands, . 839 Archer's case, . . 8, 718, 719 T. Sibthorpe, . 230 Archer v. Rorke, . . . 493, 515 V. Simcox, . . 850 V. Suiitt, . . . .629 V. Sittingbourne, &c., Ardesoife v. Beniiet, . 343, 873, 375 Railway Company, 310 Ardglasse (Lord) v. Muschamp, V. Tancred, . ' . 230 547, 551, 573, 591 v. Weymouth (Lord), 887 Armitage v. Baldwin, . . . 110 V. Young, 6 V. Coates, . . . 539 Attwood, Ex parte. . 163 V. Wadsworth, . . 824 Atwell V. Alwell, . 846, 848 Armstrong v. Armstrong, 312, 805, 806 Aubin V. Holt, . 811 Arnold, -Ex parte, . . .840 Aubrey v. Brown, . 464 V. Arnold, . . .250 Aulton V. Atkins, . 382 V. Hardwick, . . 385, 393 Austen v. Halsey, 291 , 396, 303, 809 V. Kempstead, . . 359 V. Taylor, . 18, 19, 30 Arthur v. Arthur, . 506, 507, 516 Austin V. Chambers . . 165 V. Clarkson, . . .263 V. Martin, . 96 V. Midland Railway Com- Aveling v. Knipe, 184, 168, 215 pany, . . . 216 Awdley v. Awdley, . 858 Arundell v. Phipps, . . 833, 824 Ayles V. Cox, . 843 Ashburner v. Macguire, . . 654 Aylesford's (Earl of) ease, . . 774 Ashburnham V. Ashburnhani, . 374 Aylett V. Ashton, . 486, 509 Ashburton v. Ashburton, . . 859 Ashby V. Ashby, . . . 654 Baber's Trusts, In re, . . 259 V. Palmer, , .840, 865, 869 Back V. Andrew, 317, 320, 233 Ashton V. AshtoH, ... 81 V. Kett, . .356 V, Gorrigan, . . .803 Backhouse v. Wells, . 7, 8, 11, 15 V. DalLon, . . .079 Bacon v. Cosby, . . 345 V. Daivson, . . . 980 Badcock, Ex parte. . 150, 163 V. M'Dougall, 412, 420, Re, . 857, 858 431, 513 Baden v. Pembroke (Earl of), . 834 Askham v. Barker, . . 385, 388 Bage, Ex parte, . . 163 Aspinwall v. Leigh, . . . 711 Baggett V. Meux, 493, 530, 528 Astley V. Tankerville (The Earl Baglehole, Ex parte, . . .693 of), 657 Bagot V. Bagot, 659, 761 , 763, 764, 767 Aston V. Aston, . . 748, 750, 757 V. Oughton, . .658 Astry V. Astry, .... 401 Bagshaw v. Downes, . 4 Atcheson v. Atcheson, . 474, 475 V. Spencer, . 4, 18, 19, 31 Atchison v. Le Manu, . . . 492 V. Wmter, . 464, 467, 468 Athertou v. Knowell, . . 437, 476 Bagster v. Fackerell, . . . 891 T. Eowell, . . .476 Baile v. Coleman, 3, 5, 9,10,11,13,17 Atkins V. Delmege, . . .159 Bailey v. Collett, . .219 V. Farr, . . . .561 V. Ekins, . . 75, 77, 91 Att-Gen. v. Bacchus, . . .474 Baker's Trusts, In re, . . 504 V. Bruuninn, . 200, 853 Baker v. Bayldon, . 463 T. Clarendon (Earl of), 153 V. Bent, . . 597, 598 v. Day, . . 774, 784 V. Bradley, . 538 V. Dudley (Lord), 151, V. Carter, . 150, 163, 174 172, 174 V. Hall, . . .898 T. Gains, ... 57 V. Monk, . . 173 V. Holford, . . .850 V. Peck, . 151 V. Jones, . . . 917 V. Rend, . 174 V. Mangles, . . . 850 Baldwin v. Baldwin, . . 463 T. Marlborough (Duke V. Rochford, . . 606 of), -. 757, 758, 759 Balfour v. Wolland, 67, 70, 73, 75 V. Mid-Kent Railway Balgney v. Hamilton, . . 215 Company and South Ball V. Coggs, 798, 794, 810 Coast Railway Com- V. Coutts, . 471, 474 pany, . . 808, 810 V. Harris, 73, 76, 90, 93 V. Montgomery, 415, 449, 473, 477 TABLE OP OASES. XIU PAaa PAOB Balmain v. Shore, . 194 Batty V. Lloyd, . 547, 563, 606 Bamfield v. Popham, . 7 Baugh V. Price, . 136 609 V. Wyndham, 633, 634,650 Buumann v James, , 780 Bank of Bengal v. Macleod, . 159 Bawtree v. Watson, . 595, 609 England case, . 190 Bax V. Whitbread, . 402, 404 London v. Tyrrel], . 159 Baxter v. ConoUy, . . 811 Bankes v. Le Despenser, . 33, 38 Bayly v. Rnbson, . 629 Banks V. Banks, . . 344 Bayliss's Trust, In re, 517 V. Scott, . . 855 Baynard v. Woolley, . 678, 681, 688 Y. Sutton, . . 432 Bayspool v. Collins, . 384 Barclay, Ex parte. . 695 Beaden v. King, . 155 168, 174 Bardon (Jane), in the goods of, . 846 Beak v. Beak, , 939 Barham v. Clarendon (Earl 3 of), 664 Beale v. Billing, . . 154, 165 V. Thanet (Earl of ), . 658 Beales v. Spencer, . , 518 Barker v. Barker, . 330 Beatson v. Beatson, 273, 375 V. Devon (Duke of) . 67 Beauclerk v. Mead, , 852 V. Lea, . 464 Beaumont's Mortgage Trust In V. Smark, . 339 re. , , . 240 V. Vansommer, . 598 Beaumont v. Carter, . 46? Barlee v. Barlee, . 497 Beavan v. Oxford (Lot d), : . 630 Barling v. Bishop, 285, 286 Becher's case. 545 Barnard v. Ford, . 473 Beck V. Andrew, , . 304 V. Hunter, . 165 V. Kantorowicz, . 158 Barnardiston v. Lingood, . 594 Beckett v. Cordley, , , 303 Barnes v. Robinson, . . 451 Beckford v. Beckford, 217 V. Vincent, . 243 Beckley v. Newland, , 564, 596 Barnett, Ex parte. . 676 Bective v. Hodgson, , 888 V. Weston, . 619 Beddoes v. Pugh, , 392 Barnewell v. Iremonger, 3; 50, 665, 673 Bedford (Duke of) v. Abercorn Barny v. Beak, , . 54 17, 594, 598 (Marquis of). , 36 Barrack v. M'Culloch, 25 5, 494, 508 V. Bedford, , . 889 Barret v. Blagrave, . 815 V. Woodham, , , 86 Barrett v. Hiirlley, . 601 Bedingfield v. Ashley, , 557, 568 Barringlon, Ex parte, . . 806 Bedwell v. Froome, . 304 209 Barrock v. M'Culloch, . 513 Beech v. Keep, . , , 277 Barron v. Constabile, 231, 236 Beecher v. Major, , , 217 Barrow v. Barrow, . 3' (■5, 459, 477 Beere v. Hoffmeister, , , 396 V. Griffith, . 78 Beevor v. Luck, 635 636, 627 V. Wadkin, . . 845 Belchier V. Butler, , , 617 Barrs v. Fewkes, . 8S9 V. Renforth, . , 617 Barry v. Harding, 659, 660 Bell, Ex parte, . . , 387 Barrymore v. Ellis, . 528 V. Blyth, . . 806 Bartlett v. Gillard, . 506 V. Free, , , 108 V. Pickersgill, 31 13, 314, 215 V. Phyn, . , 197 Barton v. Vanheythuysen, . 284 Bellamy's case, . . . 560 Barwell v. Barwell, 153, 174 Bellamy v. Sabine, 16o, 603 Baskerville v. Baskerville, . 33 Bellasis's Trust, In re, . 34 Baskett v. Skeel, . 696 Bellasis v. Compton, . 216 Bass V. Cliveley, . 803 Belvidere v. Rochfort [Lord), , 659 Bassett v. Percival, . 658 Benbow v. Townsend, , , 216 Bastard v. Proby, . 18,38,31 Bending v. Bending, . 359, 365 Batard v. Hawes, . 107 Bendyshe, Iq re. . 469, 480 Batchelor v. Lawrence, . 113 Bengal (Bank of) v. IV [acleod 1 159 Bateman v. Holchkin, . 764 Benger v. Drew, , 204 209 V. Roden (Lord), 652, Bennet v. Davis, , . 483 654, 655 V. Ex parte, 1 50, 151 164 173 Bates V. Dandy, . 429 Bennett v. Biddies, . 471 V. Johnson, . 617, 618 V. Colley, ( , . 175 Bathe v. Bank of England, . 531 V. Davis, . . 493 Bathnrst v. Murray, . . 471 V. Lytton, . . 65 Battersby v. Homan, . . 6«7 Benson v. Benson, , 535, 867 V. Smyth, . . 803 Bentham v. Wiltshire, . • 94 Battersea Park Acts, Re Ex Beulley v. Craven, , . 158 parte Arnold, . . 840 V. Mackay, • 40 365 XIV TABLE OP CASES. PAQE PAGE Benyon v. Fitch, 594 595, 609 Blatchford v. Woolley, . 489, 495 Beresford v. Armagh (Ahp. o 0, 506 Blenkinsopp v. Blenkinso pp, . 286 (Lady) v Driver, . P25 Blennerhassett v. Day, . 167 V. Hobson, . , 4fi4, 465 Blewett V. Millett, 46, 52, 53 Berminghara v. Slieridan, . 797, 799 Uligh V. Brent, . . 193 Bernal v. Donegal (Lor 1), • 606 Blockvill V. Ascott, . 243 Bernard's (Lord) case, , 748 Blonmart v. Player, . . 348 Bernard, Ex parte, , , 351 Blore V. Snlton, . . 234 Berny v. Pitt, 547, 563, 570, 576, Blount V. Bestland, . 426 589 594 V. Burrow, 925, 937, 928. Berry v. Gibbons, , 150 930, 935 Y. Usher, . 886, 901 V. Hipkins, . 651 Bertie v. Chesterfield (Lord), 511 Bloye's Trust, In re, . 151, 161 Berwick (Mayor of) v. Murray, 107 Blunden v. Desart, . 628 Bestall V. Buiibury, , , 511 Blunt V. Lack, . 374 Bethell v. Green, 671 Boardman v. Mostyn, . 779 Bevau's case, . 857 Boddinjjton v. Langford, . 151 Bevan v. Hiibgood, , 169 Bodgerv. Bodeer, . 695 Bewick v. Whii field, . . , 704 Bold V. Hutchinson, . 40,41 Beynon v. Gollins, , 67 Bolton V. Stannard, . 95 Bibby V. Coulter, 927 , 92ft 930 V. Williams, . 498 Bickham v. Cruttwell, , 641, 657 Bond V. England, . 661 Bickley v. Gut'st, , 397 V. Hopkins, . 773 Biddulph V. Biddulph, , , 834 V. Kent, 393, 297, 300, 319 Bidwell's Settlement, Re, . 346 V. Simmonds, 441, 457, 475 Biggs V, Andrews, 840, 893 Bone V. Pollard, . . 187. 223 Bigland v. Huddloston, . 345, 374 Bonfleld v. Hassell, . 381, 383, 451 P.ignold, Ex parte, . , 694 Bonner v. Bonner, . 472 Bill T. Cureton, . 255 ,256, 288 Bonney v. Ridgard, 62, 64, 81, 84, 86, 87 Billingliurst v. Walker, 659 Booth V. Pollard, . 807 Binks'v. Rokeby, , 66 Boothby v. Boothby, . 597, 598, 609 Birch V. Blagrave, , . 223 Bootle V. Blundell, 641, 647, 648, V. EUiimes, , 687 649, 650, 653, 657 Birch-Wolfe v. Birch, 744, 767 Bor V. Bor, . 343, 345, 347 Bird V. Peagrara, , , 511 Borett V. Qomeserra, . . 747 V. Fox, , 77 Bosanquet v. Dashwood . 549 Birds V. Askey, . 215 321 Bosvil V. Brander, 426, 446, 449 Birkett v. Hibbert, , . 471 Boswell V. Dillon, 18, 19 Birley v. Birley, 391 Boughton V. Boughton, 355, 374, 654 Birmingham v. Kirwan , 345, 357,' Roullon, Ex parte, Re Sketchley, 676 359 361 Bourne v. Bourne, . 846, F63 Birney v. Tison, . , , 547 Boutts v. Ellis, . . 930 Biron v. Mount, . 259 Bovey v. Skipwith, . 625 Biscoe V. Kennedy, 483 , 484 510 Bowen v. Evans, . 175 Bishop V. Bishop, 765 Bowers v. Cator, . . 774 Bixby V. Eley, . , 230 Bowes V. Heaps, . . 594, 609 Blackburn v. Gregson, 293, 295] ' V. Law, . . 816 802 ,307 313 Bowker v. Bull, . . 110 Blackburn v. Stables, . 18, 20, 38 Bowie's (Lewis) case. 9, 701, Blacket v. Lamb, 344 ,351 3 -.2 707, 737 743, 748, 757 Blackett v. Bates, , 807 814 Bowles V. Rogers, . .329 Blacklow V. Laws, , 519 V. Stewart, . 46, 53, 53 Blagden v. Bradbear, . 784 Bowring v. Shepherd, . . 801 Ex parte. , 430 447 Bowyer v. Woodman, . 866 Blagrove v. Hancock, , 36 Box V. Barrett, . . 343, 345 Blaiklock v. Grindle, . . , 355 V. Box, . 470 Blair v. Ormond, , 696 V. Jackson, . . 470 Blake v. Blake, . , 57 Boyd, Ex parte, . . 114 V. Bunbury, 341, 342 , 345, 346 V. Barker, . . 168 V. Flench, 3;i4 Boyle V.Peterborough (TUeBishop V. l'ete)s, . 746 of) . 404 Blakely v. Brady, 271 373 Boynton v. Boynton, . . 357, 371 Blanchet v. Foster, , 433 Bozon V. Farlow, . 811 Bland v. Bland, . . 3^3 V. Williams, . . 687 TABLE OF CASES. XV Brace v. Marlborough (The Duchess of), 294, 616, 619, 630, 631, 623 V. Wehnert, Braddick v. Mattock, . Bradford (Earl of) v. Romney (Earl of) Bradish v. Gee, .... Bradley v. Hughes, Bradly v. Westcott, Brandling v. Plummer, Bramston v. Kinaston, Blander v. Boles, Brandon v. Brandon, . Breadalbane (Marq. of) v. Chan- dos (Marq. of), Brecon (Mayor of) v. Seymour, . Breedon v. Breedon, . Brett V. East India & London Shipping Co., . V. Greenwell, Brettle, Re, . Brewer v. Swirles, Brewster v. Angell, ■ V. Clarke, Brice v. Stokos, . Bridge v. Bridge, 808 233 40 868 535 495 359 6 679, 680 . 109 40 631 74 . 811 465, 466 . 520 . 493 36, 87 . 803 . 493 265, 276, 277, 278, 281 646, 657 83 215 866 748 901 540 372 679, 680 Bridgeman v. Dove, Bridges v. Longman, . Biidgman v. Gill, Briggs V. Chamberlain, V. Jones, . V. Oxford (Earl oO. Bright V. Larcher, Brinckman v. Brinckman, Briscoe v. Briscoe, Brisick v. Manners, Bristol (Countess of) v. Hunger ford, . . . .888 (Earl of) V. Hungerford, 618, 624 Bristowe v. Warde, . . 343, 404 British Empire Shipping Co. v. Somes, 813 Britten v. Britten, . . .469 Broadlient v. Tliornton, . . 359 Brodie v. Barry, . 356, 371, 504, 505 V. Brady, .... 355 Bromfield, Ex parte, 857, 858, 859, 860 Bromhall v. Wilbraham, . . 634 Bromley v. Biunton, . . 361, 929 V. Goodere, . . . 855 V. Smith, . 594, 595, 609 V. Wright, . . 889, 901 Brooke v. Brooke, (Lord) V. Warwick (Earl oO Brookman v. Hales, . V. Rothschild, . Broom v. Broom, Broome v. Monck, . . 343, 843 Brough V. Oddy 802 Brougham (Lord) v. Poulett (Lord W.), 512 655 48 158 193 648 Brougham v. Squire, . Broun v. Kennedy, Brown's Trust Estate, In re, Brown v. Bamford, V. Bigg, . V. Brown, V. Clark, . V. Like, . V. Oakshot, V. Parry, . V. Pocook, V. Stead, . V. Williams, Browne v. Cavendish, V. Cross, V. Groombridge, V. Lee, Brownson v. Lawrance, Bruce, Ex parte, . V. Biuce, . V. Morice, Biummel v. Prothero Brydges v. Phillips, V. Stevens, Bubb v. Yelverton, Buchanan v. Angus, V. Harrison, Buckell V. Blenkhorn, Buckland v. Pocknell, Buckle V. Mitchell, Buckley's Trust, In re Buckley v. Howell, V. Lanauze, Buckmaster v. Harrop Bulfin V. Dunne, . Bulkley v. Wilford, Bullock V. Menzies, Bullpin V. Clarke, Bulteel, Ex parte, V. Plummer, Bunker v. Coke, . Buun V. Bunn, V. Guy, V. Markham, Burchett v. Durdant, Burdon v. Blaster, V. Dean, . Burgess v. Lamb, Burgess v. Wheate, . 41 . 43 . 340 528, 529 . 901 368, 374, 834, 870 449, 454, 464, 475 . 526 . 191 . 358 . 531 . 638 . 90* 355, 357, 358 . 175 . 655 . 107 667, 670, 671 . 680 V. Moxon, Burke v. Tuite, . Burley v. Evelyn, Burnaby v. Griffin, Burnell, Ex parte, Burrell, Ex parte, V. Baskerfleld, V. Crutchley, Burrowes v. Gore, Burt V. Trueman, Burting v. Stonard, Burton v. Hastings, V. Hodsoll, V. Kuowlton, . 236 . 658 . 650 . 648, 649 . 756 . 766 . 871 . 887 . 243 313, 315, 316 . 283 . 81 . 239 . 46 . 774 . 680 . 243 . 476 . 496, 509 . 679 . 400 . 356 . 386 . 811 . 933, 936 . 14 . 427, 428 446, 449, 453 . 750 301, 307, 333, 334, 839 678 503 898 33 163 694 850 239 260 78 81 33 840 648 887, XVI TABLE OF CASES. Burton v. Wookey, Burton's case, Bushman v. Pell, Butcher v. Butcher V. Churchill, V. Jfickson, V. Kemp, Butler V. Butler, . V. Cumpston, V. Kynnersley, V. Miller, . Butricke v. Brodhurst, Buttanshaw v. Martin, Butterfield v. Heath, Button V. Downham, Buxton V. Lister, Byam v. Byam, . v. Munton, V. Sutton, . Caddick v. Skidmore, Cadman v. Cadman, Calamy's (Mrs.) case, Caldwell v. Baylis, Calisher v. Forbes, Callow V. Howie, Cambridge v. Rous, Campbell v. AUgood, V. French, T. Home, V. Ingilby, V. Leach, V. Walker, 546, 792, 793, Campion v. Cotton, Candler v. Candler, Cane v. Allen (Lord), . 164, 165, Cann v. Cann, Cannock v. Jaunoey, Cant's Estate, Re, Cape V. Cape, Capper v. Wpottiswood Cappur V. Harris, Cardigan (Lord) v. Montague, Carey v. (3arey, . V. Doyne, . Carleton v. Dorset, Carlisle's (Bishop of) case, . Carlon, Ex parte, Carr's Trust, In re, Carr v. Eastabrooke, V. Ellison, . V. Erroll (Lord) V. Taylor, . ' . . 430, Carter, In re, V. Anderson, V. Barnardiston, . _ . V. Carter, . . 234, 618, 62 V. Haswell, V. Palmer, V. Taggart, . . 467, V. Williams, Cartwright v. Cartwright, . Carver v. Bowles, . . 351, . 158 546, 583 . 426 401, 402 . 162 . 396 . 362 . 659 . 512 . 765 . 593 371, 373 . 523 . 283 557, 574 794, 807 24, 37 . 901 . 663 192 865 614 748 623 503 882 751 469 468, 368, 373, 239, 234, 150, 155, 173, 174, 408, 411. 459. 375 243 176 539 811 1G6 581 633 855 515 319 792 169 169 695 416 700 694 466 473 865 34 447 696 506 672 1 904 166 468 816 654 854 Carver v. Richards, Gary v. Cary, Casberd v. Ward, Castlemain (Lord) (Lord), .... Caton V. Caton, . V. Rideout, Cator V. Pembroke (Earl of), Cavan (Lady) v. Pulteney, Cecil V. Juxon, . Chadwick, Ex parte, . V. Doleman, V. Mad en, . Chalk V. Danvers, Challis V. Casborn, Chalmers v. Bradley, . 385, 393 . 151 781, 506, Chalmers v. Storil, Chaloner v. Butcher, Chamlierlyne v. Dummer, Chambers v. Chambers, V. Crabbe, . V. Howell, . V. Waters, . Champion v. Rigby, . Chaplin v. Horner, V. Young, Chapman v. Chapman, v. Gibson, . V. Craven 747 783 507 326 343, 369 , . 512 . 163 . 60 . 214 . 213 . 639 174, 175, 830, 866 364, 365, 371 . 868 750, 154, 164, 885, 758 34 417 153 169 174 836 159 677 327, 328, 232, 233 291, 292, 300, 309 310 Chapman v. Tanner, Charles v. Andrews, Charlewood v. Bedford (Duke of) 776 Charlton v. Durham (Earl of) . 80 V. Rendall ... 38 Charter v. Trevelyan, . . . 155 Chassaing v. Parsonage, . . 471 Chave v. Chave 346 Chawner's Will, In re, Cheale v. Kerwood, . . 279, 798 Cheslyn v. Dalby, . . .814 Chesshyre v. Biss, . . . 638 Chester v. Piatt, . . . .498 Chesterfield v. Janssen, 135, 137, 146, 319, 541, 593, 600, 609 Chetwynd v. Fleetwood, Chichester v. Bickerstaff, Childers v. Childers, . Chinnock v. Sainsbury, Chipchase v. Simpson, Chippendale, Ex parte, Chissum v. Dewes, Chitly V. Parker, . Choat V. Yeates, . Cholmely v. Cholmely, V. Paxton, . Cholmondeley's case, . Christ's Hospital v. IJudgin, Christie v. Gosling, Christmas v. Christmas, Christy v. Courtenay, 217, 374 836, 887 333, 334 811, 817 . 519 . 684 695, 811 . 890 . 655 . 539 . 339 . 720 . 217 . 25 . 506 333, 225, 284 TABLE OF CASES. XVll Chubb V. Stretch, Chudleigh's case, Churchill y. Churchill, V. Dil.'ben, . V. Grove, V. Smiill, Churchman v. Hcrvpy, V Ircliintl, PAGE . 510 718, 719 . 333 . 4iS9 . 614 . 539 . 231 . 356 Clanricard (Marquis of) v. Hen- ning, .... 174, 175 Clarges v. Albemarle, . . . 539 Clarenden (Earl of) v. Barham, 658, 661, 664 Clark V. Clark 673 V. Ciook, .... 454 V. Guise, . . . .368 V Mai pas 172 Clarke v. Halters, . . , 806 V. FrankUn, . . 853, 893 V. Panopticon, . . 83 V Pistnr, . . . .526 V. Reillv 776 V. Royle, . 313, 314, 316 V. Swaile, . . 131, 154 V. Wright, . . . 283 Clarkson V. Edge, . . . 815 V. Kanway, . . . 172 Clavering v. Yorke, . . . 9:jO Claxton V. Claxton, . . .711 Clayum's c isc-. . . 558, 574, 583 Clayton v. Illingworth, . . 810 Clegg V. Edmonson, . . . • 54 V. Fish wick, . . 50, 190 Clements v. Eccles, . . . 284 V. Hall, . 50, 51, 190 V. Welles, . . .815 Clementson v. Gandy, . . 347 Clerk V. Miller, . . . .498 V. Wright, . . . .772 Gierke (Sir P. Jennings) v. Smith, 125 Clifford V. Turrell, . . .795 Clinan v. Cooke, . 773, 773, 775, 779 Clinton v. Willis, . . .500 Clive V Carew, . . . 493, 020 V. Clive, .... 39 Clough V. Lambert, . . .281 Clowdsley v. Pelham, ... 60 Clutterbuck v. Clutterbuck, . 654 Coape V. Arnold, ... .31 Coai'd V Holderness, . . . 654 Cochran's estate. Re, . . . 113 Cochrane v. Willis, . . . 791 , Cockrolt V. Sutcliffe, . . .394 Cockel V. Phips, . . . 444, 460 Cockerel! v. Cholmeley, 175, 235, 238, 239 Cocks, Ex parte, . . . .693 Coffin V. Coffin, . 397, 750, 756, 757 Cogan V. Stevens, . 892, 893, 895, 896 Cogent V. Gibson, . . • 795 Cole V. Gibbons, 551, 555, 573, 577, 581, 5b9, 591, 594, 609 V. Gibson, . ' . 126, 137, 610 V. Miles, .... 84 VOL. I. — B Cole V. White, . Colebrook's (Sir G.) case. Cole by V. Coleby, Colegrave v. Manby, Coleman v. Seymour, V. Winch, Coles V. Bristowe, V. Tretothick, Colleton V. Garth, Collingwood v. Row, Collins V. Collins, V. Lewis, V. Prosser, v. Stuleley, V. Wakenian, PAGB . 773 . 176 . 66.5 . 47 . 401 638, 639 7W9, 800 131, 154 . 366 . 854 311, 813 . 673 . 108 . 819 831, 884, 888, 901, 903 . 223 . 268 . 646, 650, 901 250, 251, 355, 274 . 476 CoUinson v. 'Collinson, V. Patrick, . Collis V. Rollins, . Colman v. S.\rrel, Colmer v. Colmer, Coll V. Nettervill, Columbine v. Chichester, Colville V. Middleton, . Colwell V. Shadwell, . Colyear v, Mulgrave, . Colylr V. Fincii, . Comer v. Walkley, Coming, Ex parte, Compton (Lord) v. Oxenden, Couingham v. Plunkett, Conoliy V. M'Dermott, Cood V. Pollard, . Cook V. Collingridge, . V. Cook, v. Dawson, Cooke V. , . V. Burtchaell, . V. Cooke, . V. Dealey, V. Fuller, . . . V. The Stationers' Com- . pauy, . 896, 897, 903 V. Toombs, . . .773 V. Whaley, . . 706, 757 V. Williams, . . . 473 V. Wilton, . . . 634 Gookes V. Hellier, . . .342 Cooli;son v. Cookson, . 195, 869, 870 V. Reay, . . .848 Coombe, Ex parte ; Re Bcavan, 681, 683 . 831 . 803 . 6i4 . 8'i7 379, 383 64, 80 . 309 677, 683 . 838 268, 279 . 385 . 330 . 163 5, 9, 11 . 83 . 108 . 605 . 813 890 531 863. Coombes v. Mansfield; Coope V. Cresswell, v. Twynam, Cooper V. Cooper, 369, 370, 371, 389. V. Gostling, V. Jackson, V. Jarnian, V. Jenkins, V. Marl in, . V. Phibbs, V. Wormald, 806 96 108 399 864 596 845 104 337 48 781 TABLE OF OASES. PAGE Cooper's Trusts, In re, . 897, 898 Coote V. Coole, . . . 651, 655 V. Jecks, . . . 676, 696 v. Lowndes, . . . 667 Cootli V. Jackson, . . 773, 784 Cope V. Cope, 659 Copis V. MidcUeton, . 109, 111, 113 Copland V. Davies, . . . 692 Coppin V. Coppin, . 296, 301, 321 V. Fernyliough, . 46, 53, 55 Corballis v. Grainger, . . . 506 Cordwell v. Mackrill, . Cornick v. Pearce, Cornlhwaite v. Frith, . Cornwall v. Hawkins, . Cory V. Thames Ironworks and Ship Building Coniptiny, . Cosby V. Ashtowu (Lord), . Cosen's case, .... Cosens v. Bognor Railway Co., . Cosuahan v. Grice, Cosser v. Radford, Coster V. Coster, . Colteen v. Missing, Cotter V. Liiyer, . Cotlerel v. Hampson, . V. Harrington, Cotterell v. Homer, Cotton V. King, . Coulls V. Ackwortb, . Coventry v. Coventry, 233, 42 850 258 816 825 342 ,11 310 934 . 258 464, 476 . 279 . 329 . 66 .« 546 . 288 . 408 358 Cowell, Ex parte, V. Edwards, V. Simpson, Cowley V. Hartstonge, (Earl) V. "VYellesley, Cowper V. Cotton, V. Scott, . Cox T. Barnard, . V. Bishop, T. Cox, V. Lyne, Coysegame, Ex parte, Crabb v. Crabb, . 219, 220 846, 234, 655, 663 . 695 106, 107 . 319 . 848 764, 765 . 338 338, 843 . 3b2 . 693 75, 81 . 516 . 446 223, 348 Crabtree v. Bramble, 834, 8G7, 869, 870 Cradock v. Owen, . . . 846 Cragrave v. Perrosl, . . . 401 Cramer's case, .... 865 Cramer v. Moore, . . . 282 Crampton v. Varna Railway Co., 803 Crane v. Drake, ... 60, 86 Crawshay v. Maule, . . 190, 810 Craytborne v. Swinburne, 106, 107, 108, 111 Crisp v. Pratt, . . . .204 Crolt V. Graham,. . . .601 V. Slee, . . . .897 Croflon, In re, . . . .854 Croker v. Martin, . . .283 Crook v. Seaford (Corp. of), 774, 780, e09 Crop V. Norton, . . . 211, 215 PAGE 498 835 385 175 468 83 Crosby V. Church, Cross V. Addenbrooke, Crossley v. Elworthy, . Crowe V. Ballard, . . 156 Croxton v. May, .... Cruikshank v. DufBn, . Cruse V. Barley and Sanson, 828, 839, 883, 889 V. Paine 800 Cruttwell V. Lye, . . 811, 815 Cubilt V. Smith, . . . .808 Cud V. Rutler, . . . 786, 821 Cuddee v. Rutter, . . 786, 831 Cull f. Showell, . . . .346 Culpepper v. Aston, . . 60, 66, 77 Cumming, -In re, .... 451 Cumming v. Forrester, . . 345 Ciinniiigbam v. Moody, 833, 834, 867 Cunninghame v. Thurlow, . 397, 398 Curling v. Leycester (Lord), . 695 v. May, . . . .846 V. Townshend, . 606, 609 Currant v. Jago 217 Curre v. Bowyer, . . . 843 Currie v. Nind 384 Curtis V. Fulbrook, ... 92 Curwin v. Milner, 547, 551, 563, 571, 576, 589, 593, 610 Cusack V. Cusack, . . 23, 42 Cuslance v. Bradshaw, . 200, 852 Cutler, In re, . . 467, 468, 470 Cutl« V. Salmon, Ex parte. D'AbbfldiPT. Bizoin, . . .383 Dacre v. Patrickson, . . . 666 Dady v. Hartridge, . . . 673 Daking v. Whimper, . . . 284 Dakins v. Beresford, . . . 518 Dale V. Hamilton, . 181, 193, 784 Dally V. Wonbam, . . . 595 Daly T. Beckett 742 Dane's Estate, In re, . . . 54 Darbey v. Whitaker, . . .811 Darby v. Darby, . . 193, 201, 784 Darcy v. Croft, . . . .519 Darke v. Williamson, . . 88, 694 Darkin v. Darkiu, . . 507, 508 Darley v. Darley, . . . 515 Darlington (Lord) v. Pultcney, . 250 Darrell v. Whitchot, ... 51 Dashwood v. Peyton, . . 343, 845 Daubeny v. Cockburn, 385, 891, 393 Dann v. City of L6ndon Brewery Co., 622 Daunt V. Daunt, .... 654 Davenport v. Bishopp, . . 2^3 V. Collman, . . 890 v. Davenport, . . 39 V. Whitmore, . . 280 Davidson v. Wood, . . . 504 Davies v. Ashford, . . 650, 869 V. Bush 657 V. Cooper, . 595, 598, 606 165, 175 806 TABLE OF CASES. XIX Davies v. Davies, V. Goodliew, V. Hodgson, V. Huguenin, V. Leo, V. Otty, . V. Thomas, V. Topp, . Davis V. Haycock, PAGE 33, 43 . 847, 849 493, 511, 530 . 397 . 744 . 334 . 338 . 673 . 800 V. Marlborough (Duke of), 564, 594, 597 V. Page, . . . .375 y. Synionds, . . . 184 V. Uphill, . . . .394 Daw V. Terrell 084 Dawes v. Scott, .... 652 Dawson v. Bourne, . . . 517 V. Kearton, . . .380 V. Massey, . . . 170 V. Prince, . . . 514 Day V. Merry, .... 751 Dayrell v. Champneys, 707, 738, 746 Deacon v. Colquhouu, . . . 315 Deare v. Soutten, .... 476 De Beauvoir v. De Beauvoir, . 847 De Biel v. Thompson, . . .783 De Chatclain v. De Pontigny, . 343 Deerburst (Lord) v. St. Albans (Duke of), . . .18, 31, 34 Deeth v. Hale, . . . 830, 866 Deg V. Deg, 308 Degge's case, .... 857 De Haviland v. De Saumerez, . 20 De Houghton v. Money, . . 388 De la Garde v. Lempriere, . 463, 471 De Lancey, Re, . . . . 839 De la Touche's Settlement, In re, 43 De Mandeville v. Crompton, 416, 418 De Montmorency v. Devereux, . 175 Dening v. Ware, . . . 355. 279 Dennis v. Badd, . . . .860 Deuton v. Donner, . . 154, 105 Derbishire v. Home, . . . 526 Dermg v. Wiuchelsea (Earl of), 100, 106, 107, 108 De Rochefort v. Dawes, . . 670 Derwentwater's (Lord) case, . 730 Desart(Lord) V. Goddard, . . 770 Devaynes v. Noble, ... 80 V. Robinson, . . 80 De Visme, Re, . . . 317, 318 Devoy v. Devoy, . 187, 317, 331, 333 Uewar v. Maitland, . . 357, 373 Dews V. Brandt, . . . .606 Diccouson v. Talbot, . . . 169 Dickenson v. Shaw, . . 308, 309 Dickin v. Edwards, . . . 654 V. Hanier,. . . . 765 Dickinson v. Dickinson, . .74, V. Shaw, . . 307, 309 Dickson v. Robinson, . . . 364 Dieby, Ex parte, . . . .604 V. Legard, 838, 831, 874, 875, 878, 885, 886 FAGB . 77 . 96 18, 34 351, 307, 380 OQO V. Parker, 342, 345, 873, 373 Dike V. Rioks, Dilkes V. Broadmead, Dillon V. Blake, . V. Coppin, V. Grace, 516 153 65 884 347 93 333 Dillwyn v. Llewellyn, . . . 773 Dilrow V. Bone, .... 255 Dimes v. Grand Junction Canal, . 167 Dimsdale v. Robertson, . . 813 Dinhani v. Bradford, . . . 813 Dinn v. Grant 325 Dipple V. Corles, . . . 362, 363 Disher V. Disher, .... 835 Disney, In re, .... 467 Dixie V. Wright, . . . .865 Dixon V. Dawson, . . 890, 901 V. Gay fere, . . 316, 869 V. Muckleston, . . .684 V. Olmius, Dobson V. Land, .... Dodson V. Sammell, V. Hay, . . .31, Doe V. Chichester, V. Claridge, .... d. Garnons v. Knight, . d. Jones v. Hughes, 93, 93, 94, 95, 96 d. Newman v. Rusham, . 283 d. Richards v. Lewis, . . 433 V. VVeller, . 229, 333, 341, 243 D'Oechsner v. Scott, . . .520 Doherty v. Waterford and Lim- erick Railroad Company, . . 795 Doloret v. Rothschild, . . . 7i6 Dolphin V. Aylward, . 2S3, 388, 664 Dolton V. Hewin, . . 75, 77, 91 Donaldson V. Donaldson, 203, 305, 278 Doncaster v. Doncaster, 20, 25, 31, 34 Done V. Whalley, . . .114 Doolan v. Blake, . . . .528 Derail V. Wiltshire, . . 60, 74 Dorchester (Lord) v. Effingham (Earl of) Douglas V, Congreve, . V. Culverwell, V. Douglas, . Dover v. Buck, . . . 151, Dow biggin v. Bourne, 358 18 172 371 175 111 Dowclfv. Dew, 229, 333, 334, 341, 343 . 833 07, 08 . 498 . 223 . 151 . 417, 421 . 810 V. Sandys 750, 751, 756 858, 359, 860, 364 . 854 . 359 . 109, 218, 235, 336 Dowling V. Betjemann, V. Hudson, V. Maguire, Down V. Ellis, Downes v. Glazebrook, V. Jennings, Dow^ns V. Collins, Downshire (Marquis of) (Lady), . Dowson V. Bell, Drant v. Vause, Drever v. Mawdesley, Drew V. Lockett, . V. Martin, . XX TABLE OF CASES. DriscoU, Re, Driver v. Ferrand, Droliiin V. Drohaii, Diuce V. Denison, Drummond v. Tracy, Drury v. Drury, . V. Scott, . V. Smith, . Dryden v. Frost, . Duljost, Ex parte, Dues V. Smitli, Duffield V. Elwes, PAGE . 696 . 651 . 87 . 346, 347 . 78 . 422 . 511 918, 919, 927 . 321, 687 . 261 . 469 921, 924, 925, 930, 931, 935 . 337 V. Smith, Uuffy's Trust, In re, . . . 459 Du Houriiielin v. Sheldon, . . 845 Duke V. Sylvester, . . . 402 Dumboll, £x parte, . . .164 Dummer's Will, In re, . . 840 Dummer v. Pitcher, . . . 348 Dumper v. Dumper, . . . 223 Dunbar v. Tredenniclj, 172, 174, 175 Duncan v. Bluett, ... 30 V. Campbell, . . .477 V. Tindal, . . .806 Dunch V. Kent, ... 66, 259 Duncomb v. Duncumb, . . 720 Duncombe v. Grecnacre, 448, 466, 487 V. M' yer, . . .825 Duncuft V. Albrecht, . . .796 Dundas v. Blake, .... 67 V. Dutens, . . .781 Dunldey v. Dunkley, . . 464, 467 Durell V. Pritchard, . . .819 Durham v. Crackles, . . . 459 Durour v. Motteux, . 838, 829, 874, '876, 878, 880, 881, 882, 902 Du Vigier v. Lee, . . 628, 639 Dyer y. Dyer, 203, 210, 316, 218, 861, 864 Dyke's Estate, fie, . 229, 234, 843 Djke V. Kendall, . . . 317,357 Earlom v. Saunders, . . 835, 848 East V. Coou 350 V. Twyf'ord, ... 20, 30 East India Company v. Henchman, 157 V. Vincent, . 810 Ebrand v. Dancer, 304, 211, 217, 319 Ebrington v. Ebrington, . . 374 Eccles V. Thawill, . . .628 Eddels V. Johnson, . . . 673 Ede V. Knowles, . . . 678, 692 Edge V. Woithington, . . . 680 Bdgeworth v. Edgeworth, . . 396 Edmonds v. Dennington, . 408, 411 Edmunds v. Povey, . ' . . 614 V. Townshend, . . 468 Edwards v. Abrcy, . . . 504 V. Browne, 595, 605, 606, 610 V. Burt, 595, 605, 606, 609 V. Clay, . . .824 V. Fashion, . . 186, 187 V. Fidel, . . .211 PAGE Edwards v. Freeman, . . . 663 V. Jones, 267, 269, 274, 516, 925, 926 V. Lewis, V. Martin, y. Martyn, . y. Meyrick, . y. Morgan, . V. Pike, V. Tuck, y. Warwick (The Coun- tess of), . . 835, 848, 867 V. Williams, . Eedes v. Eedes, . . 446, Egerton y. Brownlow (Earl of), Eidsforth v. Armstead, Eland y. Eland, . 68, 69, 70, 77. 78 y. Baker, . . . .399 Elder, Ex parte, . . . .507 Elibank (Ladv) v. Montolieu, 424, 431, 442, 446, 460, 461, 473 Elliot y. Brown, . . .189 V. Elliot, . 204, 206, 220, 223, V. Merryman, 59, 64, 68, 77,90 Elliott V. Cordell, 450, 455, 456, 4o7, 459 45, 52 . 626 . 509 165, 166 . 372 . 214 147 868 165 476 19 94 y. Edwards, . 296, 303 V. Fisher, , , 840 Ellis y. Bartram, , 889 y. Lewis, . 358, 365 y. Nimmo, . 229, 351, 280 Ellison, Ex parte. , 868 V. Ellison, 232, 245, 254, 456, 364, 935 Eloy y. Norwood, . 638, 629 Elsey y. Cox, , , 284 Elton y. Ellon, . . , 37 Elwes V. Elwes, . , , 41 Eiworthy y. Bird, , ^ 811 y. Wickstead , , 470 Emblyn y. Freeman, 839, 875, 878, 893 Eramerson's case, . . . 799 Emuss V. Smith, . 321, 673, 673, 854 England (Bank ot) case, . . 190 V. Curling, . . . 810 V. Downs, 415, 416, 418, 431 Eno y. Tathani, .... 667 Ernest v. Nicholls, . . .171 Errington v. Aynesley, . . 807 Erskine's Trusts, In re, . . 473 Essex y. Alkins, .... 494 y. Essex, .... 199 Este V. Este 343 V. Smythe, .... 518 Eton College v. Beauchamp, . 737 Eyans, In re, . . . . 505, 850 V. Chesshire, . 576, 594, 609 y. Chester, . . .509 y, Cockeram, . . 655, 657 y. Evans, 34, 489, 652, 654, 655 V. Jenuing, . . . 263 TABLE OF CASES. XXI PAGE PAGB Evans v. Moi's;an, , ^ 509 Pitzgibbon v. Blake, . 509 V. Poole, , , 330 V Scanlan, . 45 V. Smithson, . 661 .Pilzroy V. Riclnnond (Duke of) . 389 V. Tweedy, , , 311 Fitzsimons v. Filzsimons , . . 346 V. Walslio, 57 , 58 Flamauk, Ex parte, . . 865 V. Wood, . P03 Flanagan v. Flanagan, 827, 83s", V. Wyatt, . 663, 670 830 864 874. 883 Evelin's (Liidy) cuse. . 699, 707, 709 V. Great Western Rail- ' Evelyn v. Evelyn, . 642, 658 way Co., 151 Ewei- V. Corbet, . 81, 82, 87 Fleet V. Perrins, . 445, 515 Ewing V. Oabakjiston, , , 325 Fleetwood v. Llharnock, 107 Exel V. Wallace, , , 18 Fleming v. Armstrong, 536 Exton V. So.oti, . , , 383 V. Buchanan. 230 Eyre v. Dolphin, . 46, 52, 53 V. Carlisle (Bi shop of) V. McDonnell, . • • 151 700, 733 V. Marsden, , , 887 V. Fleming, . 700, 707 V. Popliam, 784 Fletcher v. Ashlmruer, 836, 875 V. Sadlier, . '. 320, 326 V. Cliiipman, 893, 895 Eyton v. Denbigh, &c , Railway V. Fletclier, . . 281 Co., * 317 V. Sedley, Flight V. Bentley, v. Bolliind, ■ 284 093 803 Falcke v. Gray, . 79 4, .803 833 Flint V. Brandon, 807 Farebrother v. Woodh ouse, ' . 110 V. Warren, , 889 Farhall v. Farhall, .84,86, 89 Flory V. Denner, . 360 Farinj^ton v. Parker, , 3'iO Floyd V. Bnokland, 774 Farley, Ex parte, , 683 Floyer V. Sherrard, 138 , 129 131 Farmer v. Dean, . , . 155 Poden V. Finney, 470 V. Martin, . SS^ 393 Foley V. Bnrnell, 37, 34 Farquharson v. Cave, . 927, 938, 933 Folk-It V. Tyrer, 511, 834 Farrall v. Davenport, 774 Poone V. Blount, 834 Farrant v. Lovell, . 746 Fiiord V. Baker, . , 46 Farrar v. Wiuterton (" Sari of) . 840 Foot V. Jones, . 574 Faucoiiberge (Lord) i /. Filzger- Forbes v. Adams, 866 aid, . , 250 V. Forbes, 313 Fawcclt V. Whitelions 50 Y. Limond, 359 Pawell V. Heelis, 293, ^'295,' SOU V. Peacock, 70, 71 77', 302 339 90, 93, 94 Fearon v. Desbrisay, , , 396 V. Steven, 200, 853 Featherstonhaugh v. FenwiCk, Ford, Re, . 467, 476 50, 675 v. Olden, . 153 Feilden v. Slater, 815 V. Peering, , 824 Fells V. Read, .' 828, 834 V. Stuart, . 283, 284 Fenner v. Taylor, , , 463 v. Tynte, . 758 Pereduy v. Wiglitwick , 193 Forrest v. Forrest, 217, 223 Fereges v. Robinson, . 635, 640 V. Prescott, . 652 Fermor's case, , 740 Forrester v. Cotton, . , 345 Ferraud v. Wilson, . 705 Forshaw v. Higginson, 84 Ferris v. Mullins, . 67R, 683 Fortescue v. Burnett, 368, 269! Fetii place v. Gorges, . 488, 518 370 ,371 ,373, 374 Field V. Brown, . . 765, 863 V Gregor, , 234 V. Cook, . 359 Fosbrooke v. Balguy, , 56 V. Doniiughmore (Lord), . 359 Foss V. Foss, , 507 V. Evans, . ■ • • 538 Foster v. Blackstone, . 338 V. Lonsdale, . 213 V. Cook, . 359, 364 V. Pickett, . 901 V. Ha'e, . , 779 V. Sowle, 496, 509 510 V. Hall, . , 363 Fielding v, Winwood, 233 V. Roberts, 595 Finch T. Finch, . 31C ), 319, 230", Fothergill v. Potliergill, 229', 223 346 330 , 231 234 V. Shaw, . 336 Fountayne v. Grimes, . 557 Firmin v. Pulliam, , • 603 F.)urdrin v. Gowdey, . . 845 Fisher v. Fisher, . 653, 653 Fowler's Trust, Re, . 344, 353 Filch V. Weber, . . 887, 839 Fowler v. Fowler, 41 538 xxu TABLE OF CASES. PAGE Fowlev V. 'WiUougliby, . 654 Fox V. Cluu-lton, 345 V. Fox, 220, 231 V. Mackreth, 115, 148 140, • 154, 51)0, 610 V. Wright, . fi04. 609 Foxciaft V. Lister, 7U8, 77 3, 774, 775 Frail v. Ellis, 336 Frame v. Dawson, 773, 778 Framplon v. Franipton, 263 Francis v. Brooking, . 466, 407 V. Wigzell, 48 6, 50H, 509 Frank v. Frank, 375, 865 V. Standish, 341 Franklin v. Franklin, . 217 Franklyn v. Tiiton, 808 Franks v. Bollans, 154, 866 V. Price, . 30 Frayne v. Taylor, 844 Fream v. Dowling, 654 Frederick v. Aynscorabe , 834 Freeman v. Bishop, 5tl3 V. Ellis, 673 V. Fairlie, 451, 835 V. Freeman, 239 T. Parsley, . 449 V. Pope, . 285, 286 Freemoult v. Dedire, . 60 Freke v. Barrington, . 343 Fieme v. Brade, 593 French v. Davies, 358 V. French, 284, 287 Frith V. Cartland, 215 Fry V. Capper, 529 Fulham v. Jones, 834 Fuller's case, 546, 584 FuUerton v. Martin, . 20 FurBaker v. Rol)inson, 233 Pyfe V. Arbuthnot, 41 Fytohe v. Fytche, 371 Gadbury, Re, . 217, 225 Gatfee's Settlement, In re. . 523, 525 Gainsborough v. Gainst oro ugl", 647 Galliers v. Allen, 841 Gallon V. Hancock, . 63S ', 636* 657 , 673 Gannon v. White, 273 Gardiner v. Pell, 355 Gardner v. Gardner, . 4 k, 494 , 507 V. Marshall, . 466 V. Parker, 9 Is, 930 , 935 V. Walker, 472 Garforth v. Bradley, . , 473 Garnett T. Acton, 843 Garrard v. Dinorben (L ord /I 280 V. Prankel, 40 V. Lauderdale (I Mn\), 2 56, 257 , 258 Gascoigne v. Thwing, . 213, 314 Gaskell's Trusts 535 Gaskell v. Gaskell, . . . 258 Gaston v. Frankum, Gayner v. Royner, . . . 109 Gi'dye v. Matison, . . .109 Gee V. Gurney, . . . .396 V. Liddell, .... 263 Gent V. Harris 467 V. Harrison, . . 763, 765 George's case„ ' . . . . 231 George v. Milhanke, . . . 386 Geraghty v. Maloiie, . . .694 Gervais V. Edwards, . . .813 Gjbbins V. Eyden, . . .671 Gibbous V. Baddall, 393,296,397, Garrett v. Wilkinson, . . 326 Garrick v. Taylor, . . . 215 Garth V. Cotton (Sir .John Hind), 697, 705, 743, 743, 745, 746, 759, 760, 761, 763 V. Gibbons, V. Kibbey, Gibbs V. Daniel, . V. Glamis, . V. Rumsey, Gibson v. Gibson, I V. Ingo, . V. J eyes, . V. Kinven, T. Wells, . Giddings v. Giddings, Gilbert v. Lewis, V. Overton, Gllbertson v. Gilbertson, Gilchrist v. Gator, V. Herbert, Gillespie v. Croker, Gillillan v. Henderson, GiUett V. Peppercorne, Gillies V. Longlands, Gittins V. Steele, . Glaister v. Glaister, V. Hewer, Glanville (Lady) v. (Duchess of), . Gleaves v. Paine, Glede v. Glede, . Glegg V. Henderson, V. Rees, 301, 311 139, IfiO . 468 165, 166 . 257 901, 903 9, 360, 364 . 835 . 165 . 401 . 747 46, 53, 53 516, 517, 519 255, 265, 276 651, 655 454, 476 . 782 . 935 . 811 . 158 867, 871 . 654 . 217 479 Beaufort Glenorchy (Lord) v. Bosville, 19, 30, 39^ " " Glover, Re, . V. Hall, . Glynn v. Locke, . Goddard v. Snow, V. Whyte, Godfrey's Trusts, In re, Godfrey v. Tucker, Godsal V. Webb, Godwin V. Kilsha, Gold V. Rutland, Goldicutt V. Townsend, Goodfellow V. Goodfellow, Good right v. Hodges, . Goodwin v. Lee, . Goodwyn v. Goodwyn, Goold V. Teague, 647 451 633 50 259, 360 31, 39, 388 363 515 67 417 109 470 620 369 233 907 . 783 . 361 213, 215 . 657 282, 374 . 854 459, 512, TABLE OF CASES. XXlll Gordon v. Atkinson, . . . 889 V. Duff, . . . .654 V. Graham, . . 631, 623 V. Scott, .... 50 V. Woodford, . . .764 Gore, Ex parte, . . • . .163 V. Knight 513 Gorge's case, .... 231 Goring v. Nasli, . . . .333 Gosling V. Carter, . . 91, 94 V. Gosling, . 35, 34, 217 V. Warburton, . . 357 Gossett's Settlement, In re, . 389 Gould v..Oakden, . . .594 V. Robertson, . . . 359 v. Teague, . . . 854 Goulder v. Camm, . . 518, 528 Gover v. Davis, .... 840 Gower v. Grosvenor, ... 34 Gowland v. De Faria, 175, 594, 595, 606, 607, 608, 609, 610 Grace, Ex parte, .... 59 Graham's Trusts, Re, . . . 510 Graham v. Londonderry, 538, 539, 540 385 20, 33 . 460 261, 494, 519, 540 . 311, 339 . 854 . 345 . 663 . 363 82, 88 648, 653 . 363 . 421 498, V. O'KeeflFe, V. Stewart Grant, In re, V. Grant, . V, Mills, . Graves' Minors, Re, V. Forman, V. Hicks, Gray v. Gray, V. Johnston, v. Minnethorpe, Grayson v. Deakin, Grazelirook v. Percival, Great Southern & Western Rail- way Co., In re ; Ex parte Duke of Leinsler, . . . . Greated v. Greated, Greatley v. Noble, Greaves v. Powell, Greedy v. Lavender, . Green v. Bank of England, V. Britten, . V. Eliins, . V. Green, . V. Jackson, V. Marsden, V. Otte, V. Pulsford, V. Stephens, Gre«ne v. Cole, . . . . V. Greene, V. West Cheshire Railway Co., . . . . Greenfield v. Bates, Greenhill v. Greenhill, Greenlaw v. King, Greenway v. Greenway, Greenwood v. Penny, 342, 868 668 499 654 474 216 517 23, 35 342, 345, 513 . 903 . 516 . 464 . 388 31, 834 . 748 . 651 Greetham v. Colton, 808 167 . 834 161, 168 . 850 343, 856, 376 77,95 Gregory v. Gregory, V. Lockver, V. Mighell, Gresley v. Mousley, Grettou v. Haward, Grey v. Cockeril, PAQB . 151, 174 . 510, 511 . 774 165, 166, 174 342, 343, 374 . 825 V. Grey, 306, 317, 220, 332, 233 Griesbach v. Fremantle, . . 870 Grior's Estate, la re, . . 22, 36 Griersou v. Eyre, . . . 760 Grieveson v. Kirsopp, . . . 850 GrifHn v. Griffin, . . .45, 46, 53 Griffith V. Buckle, ... 22 V. Ricketts, 258, 840, 853, 893 Griffiths V. Pruen, . . .901 Grigby v. Cox, . . 483, 486, 494 Griggs V. Gibson, . . . 374 v. Stnplee, . . .420 Grimstone, Ex parte, . 857, 858, 859 Grissell v. Bristowe, . . . 800 V. Swinhoe, . 343, 369, 370 Groom v. Booth, ... 74, 81 Grosvenor v. Durston, . . 346 V. Lane, . . . 448 V. Sherratt, . . 170, 594 Grove v. Grove, .... 614 Grover v, Hugell, . . 161, 168 Grove's Trust, Re, . . . 464 Groves v. Clarke, . . . 461 V. Groves, . . .213 v. Perkins, . . . 461 Grute V. Locroft, .... 475 Guest V. Smythe, . 159, 160, 173 Guidot V. Guidot, . . . 834 Gullin V. Gullin, . . . .47a Gurly V. Gurly, . . . .366 Gurney v. Goggs, . . . 518 V. Oranmore (Lord), . 259 Guy V. Pearkes, . . . .476 Gwvnne v. Heaton, 125, 593, 594, 596, 609 Haddelsey v. Adams, . Haddon v. Pladgate, . Haggarlh v. Wearing, . Haigh, Ex parte, . V. Kaye, . Haines v. Burnett, Haldenby y. Spofforth, Hale V. Cox, Hales V. Cox, V. Risley, . V. Van Berchem, Halfhide v. Fenning, . Hall V. Hallett, . 150, V. Hardy, V. Hill, . . 359, V. Noyes, V. Palmer, . V. Potter, V. Warren, . V. Waterliouse, Halliwell v. Phillips, . Halsey v. Halsey, . 28 . 519 . 593 . 676 . 772 . 38 . 80 . 653 . 281 . 719 . 674 812 162, 173, 174 . 814 363, 364, 447 . 150 . 280, 283 . 649 . 791 . 492 . 758 . 471 XXIV TABLE OF CASES, . 058, 150, 153, 330, 668, Hambi'oolse v Simmons, H;imei-ti)n v. Roi;ers, . Hnmil V. Wliite, . Hamilton v. Buckmasler, T. Denny, V. Kirwan, . v. Worley, . T. Wright, Hammersley v. De Biel, Hance v. Truwliitt, Hanchelt v. Biiscoe, . Hancox v. Abbey, 646, 653, 654, 655, Han man v. Riley, Hannah v. Hodgson, . Hansou, Ex parte, V. Keating, . . 446, Harbert's (Sir William) case, Harcourt v. Seymour, . V. White, Hardey t. Huwkshaw, Harding v. Harding, Hardman v. Johnson, Hardwicke v. Mvnd, . (Lord) V. Vernon, Hardy, Ex parte, Harewood v. Child, Harford v. Carpenter, . V. Lloyd, Harland v. Binks, Harman v. Richards, . Harmood v. Oglander, Harnett v. Maitland, . V. Macdnugall, V. Yielding, . Harper v. Munday, Harrington (Countess of) v. Har- rington (Earl of), Harris v. Fergussun, . . 184, V. Lee, .... V. Mott, . . . 490, Harris v. North Devon Railway Co., .... V. Pepperell, V. Walkins, Harrison, Ex parte, V. A slier, V. Barton, . V. Gardner, . T. Gnest, V. Harrisim, V. Naylor, . V. Randall, V. Sonlhcote Harrop's Estate, In re, Harrop v. Howard, Hariyman v. Collins, Hart V. Middlehurst, Hartford v. Power, Hartley v. Hurle, Hartley v. O' Flaherty, Harvey v. Metropolitan Railvray Co., Harwood and Child's case, . 241, . 359, . 27, 31 296, 301, . 839, 502, 519, 106, PAQE 927 639 41 97 50 •396 673 172 782 356 493 657 696 605 329 452 103 870 767 840 845 56 67 172 854 650 675 215 258 283 251 748 528 791 672 34 185 476 511 799 40 373 164 219 187 815 172 360 , 32 39:i 824 865 529 41 23 516 648 108 796 337 Harwood v. Tooke, Haslewdod v. Pope, , Hastings v. Doui^lass, . Hatch V. Skelton, Hatchell v. Eggleso, . Hatfield v. Pr\ me, Hawkes v. Hubback, . Hawkins, Ex parte, v. Blewitt, . V. Holmes, . v. Malt by, . v. Tavlor, . Hayden v. Kirkpatrick, Hayes, Re, . Haynes v. Forshaw, . V. Haynes, Hayward v. Pile, Hazlefoot's Estate, Head v. Godlee, . V. Head, v. Randall, . Headen v. Roshei-, Heal v. Knight, . Healey, In re, Heames v. Banoe, Heap V. Tonge, . Heard v. Pilley, . Hearle v, Botelers, V. Greenbank, 772, 799, In re, . 597 . 651 . 538 . 663 . 454 . 890 523, 525 . 841 938 774 802 . 617 . 628 . 868 82, 86 . 840 . 55 . 628 . 892 . 476 38 606, 607, 608 . 851 . 471 628, 629 . 283 213, 214 300, 311, 354, 433, 443, 296, 326 Hearne v. Hearne, Heathcote v. 'North Staffordshire Railway Co., . . . . Heatley v. Thomas, Heazle v. Fitzmaurice, Hedges v. Clarke, V. Hedges, Hedworth v. Primate, Henchman v. 513 338 816 495, 496, 510 . 342 . 470 658, 919, 925 614 Attorney-General, 839, Hender v. Rose, . Henley v. ', . Hensman v. Fiyer, Henriques v. Bensusan, Heptinlall v. Gott, Hepworth v. Hepworth, V. Heslop, . V. Hill, Herbert v. Blunden, Hercy v. Birch, . Heieford v. Ravenhill, Heme v. Benbow, Heron v. Heron, . Hervey V. Audland, . V. Hervey, Hesse v. Briant, . Pleveningham v. Heveningli Hewett V. Snare, Hewitt, Ex parte, V. Fraye, V. Loosemore, V. Wright, Heys V. Astley, . 219, . 371 . 170 671, 673 . 257 898 231 . 280 . 665 . 20 . 810 . 895 . 747 213, 603 . 281 227, 231, 336, 236 166 670 655 173 929 688 891 785 TABLE OF CASES. XXV PAOE Hibbert V. Hibbert, . . .810 Hickc'S V. Cooke, . . . . l.'iS Hickling v.'Boyer, . . 661,663 Iliei-n V. Mill, . . 681, 687, 688 Higsjinbothiim v. Hawkins, . 767 Higgiiison v. Barneby, . . 36 Higgon V. Sydall, . . .614 Highway v. JBanner . 23, 24, 345 Hill V. Chapmiiu, . . .930 V Cock 888 V. Eilmoncis, . . . 454 V. Gomme, .... 382 V. Hill, .... 36 V. London (Bishop of), . 673 V. Mill, ... 46, 53 V. Simpson, . . .84, 86, 88 Hills V. nownton, . . .233 V. Hills 927 Hichinbi'oke v. Seym-iur, . . 395 Hinchcliffe v. Hinchcliffe, . . 346 Hincksniiin V Smilh, . . .606 Hippesley v. Spencer, . . . 747 Hirst V. Beach 930 Hitclicock V. Clendinen, . . 4'i9 Hitchmnn v. Stew.irt, . . 107, 108 Hoaie's Trusts, In re, ... 43 Hnbbs V. Hull, . . . .812 Hobby V. Collins, . . .866 Hobday v. Peters, . 167, 172, 495 Eobson V. Neale, . . . 851 V. Thelluson, . . . 258 V. Trevor, . . 564, 571 Hockley v. Bantock, . . . 680 Hoddel V. Piigh, . . . .840 Hodgens v. Hodgens, . 461, 471, 503 Hodgkinson v. Kelly, . . . 801 V. Wyatt, . . 678 V. National Live Stock Insurance Co., . . . 151 Hodgson V. Bective, . . . 8S8 V. Hodgson, . . 489, 494 V. Shaw, . 109, 110, 111, 112, 113 Hodkinson v. Quinn, . . 96, 97 Hogg V. Jones, .... 34 Hoideii V. Webber, . . .157 V. Weekcs, . . .767 Holderness v. Lamport, . 212, 806 Holdich V. Holdich, . . 359, 363 Hole V. Harrison, . . . 106 Holford V. "Wood, . . . 655 Holliday v. Bowman, . 638, 636, 650 Hollis V. Edwards, . . 774, 784 V. Whiteing, . ". . 784 Holloway v. Headington, . 274, 375, 380 V. KadclifFe, . . 866 Folman v. Loynes, . . . 165 Holmes v. Coghill, . . . 280 V. Penney, . . . 284 Holmesdale (Viscount) v. Sack- ville West, . . .31, 33, 37 Holt y. Holt, ... 45, 53 Holt V. Mill, . Holyman, Ex parte, . H'lnor V. Honor, . Honywood v Porster, Hood V. Hood, PAGE . 6 5 . 163 23, 41 ; 348 330, 665 V. North Eastern Railway Co. 816 Hooper, Ex parte, . . 67(), 680 V. Strullon, ... 96 Hooper's Trusts, Re, . . .467 Hope V. Hope 813 V. Liddell, . . .96, 175 Hopkins v. Myall, . . . 237 Hopkinson v. Ellis, . . . t-'87 V. Rolt, . . 622, 623 Hopppr V. Conyers, . . . 215 Horn V. Horn, . . . 66, 72 Home V. Barton, . . 23, 31, 36, 37 V. London and North Western Railway Co., 811 Horner's Estate, In re, . . 864 Horner v. Swann, . . . 397 Hotham's Tiusts, Re, . . . 840 Houghton, Ex parte, . . 211, 212 V. Houghton, . 193, 311 Hovey v. Blakeman, . . . 526 How V. Welden 569 Howard v. Chaffer, . . . 7^ V Digby, . 507, 537, 538 V. Ducane, . . .If V. Hooker, Howe V. Hall, V. Howe, . Howel V. HowpI, . Howells V. Jenkins, Howkins v. Jackson, Hoves V. Kindersley, Hudson v. Cook, . Hughes, Ex parte, . V. Howard, V. Kearney, 40'*, 416 776, 778 204, 211 23, 24 343, 846 . 41 . 235 330, 843 163, 173, 176 . 53 . 291, 297, 304, 811, 890, 326 V. Morris, . 778, 803, 804 V. Stubbs, . . .257 V. Wells, 215, 283, .506, 508 Huguenin v. Baseley, . . 379, 603 Huish's Charity, In re, . . 383 Hulme V. Tenant, 4si, 488, 493, 496, 500, 508, 51 5 Humberston v. Humberston, . 35 Humble v. Bill, . . .60, 81, 83 Humphrey v. Humphrey, V. Giver, . V. Richards, Humphreys v. Harrison, Hunt V. Matthews, Hunter v. NocUolds, . V. Walters, Huntingdon v. Greenville, Hurst V. Hurst, . Hussey v. Hussfiy, Hutcheson v. Hammond, Hutchison v. Skelton, . 518 388 489 746 417 629 691 617 397 765 903 371 XXVI TABLE OF CASES. Tlutchinson v. Standley, Hyrle v. White, . Hvllon V. Hyllon, HyneS v. Eediuglon, , PAGE 478 597 lf)9 96 Ibbetson's Estate, In re, . . 846 Ibbetson v. Ibbetson, . . . 664 Ilchester (Earl of) v. Carnarvon (Earl of), . . 658, 661, 664 Imperial Mercantile Credit Asso- ciation V. Coleman, . . . 151 luchiquiu (Lord) v. French, 634, 646 V. O'Brien, 684 Incledon v. Northcote, . . 358 Ingle V. Richards, . 150, 152, 845 Inglefiold V Coghlan, . . .516 Ingram v. Ingram, . . . 351 Innes v. Sayer, . . . 229, 230 Inwood V. Twyne, . . 859, 8«9 Ion T. Ashton, .... 654 Irby V. Irby 629 Ireland v. Trembaith, . . .463 Irnham v. Child, .... 129 Irons V. Smallpiece, . . . 260 Irwin V. Irwin, .... 389 Isaacs V. Boulnois, . . . 806 Isald V. Fitzgerald, ... 53 Ithell T. Beaiie, . . .66, 230 Ivens V. Butler, .... 509 Jackson V. Butler, . . . 825 Jackson v. Cocker, . . . 798 V. Hobhouse, 493, 520, 528 V. Hurlook, . . .898 V. Jackson, 185, 189, 191, 229, 385, 814 V. Langford, . 628, 629 V. Welsh, . . 50, 51, 54 Jacobs V. Amyalt, 454, 4G5, 475, 518 James, Ex parte, 151, 162, 163, 166, 173 V. Bydder, . . .263 V. Dean, . 45, 46, 47, 53 V. Morgan, . . 585, 593 V. Rice, . . 678, 680 V. Richardson, . . 14 .Tameson v. Stein, . . . 782 Jeans v. Cooke, 211, 220, 223, 224 Jebb V. Abbott, .... 67 V. Jebb 750 Jeffereys v. Small, . . 188, 189 Jefferys v. Jefferys, 329, 351, 355, 279, 280 Jenkins v. Hiles, . . 68, 75, 76 V.Tucker, . . .511 Jenkinson v. Harcourt, . . 664 Jenkyn v. Vaughan, . . 284, 386 Jenner v. Jenner, ... 41 V. Morris, . . . 476 Jenney v. Andrews, . . . 495 Jennings v. Moore, . . . 329 Jermy v. Preston, . . . 864 Jernegan v. Baxter, . . . 468 Jersey (Earl of) v. Briton Feri-y Floating Dock Co., . ,. . 317 Jervoise v. Jervoise, . 345, 538, 570 Jervoise v. Northumberland (Duke of), 18, 19, 20, 27, 31, 38 Jessop v. AVatson, . 887, 888, 890 Jesus College v Bloome, 702, 733, 759, 760, 761, 762 Jewson V. Moulson, 425, 428, 445, 446, 452, 461, 471, 473 Johnes v. Jobnes, V. Lnckhart, . Johnson's Trusts, In re, Johnson v. Arnold, V. Ball, . V. Child, V. Fesenmeyer, V. Gallagher, 487, 750 . 518 25, 34 . 848 . 366 . 673 . 166 V. Johnson, . V. Kennett, 66, V. Kershaw, . V. Lander, V. Legard, 501, 503, 510 460, 461, 889 !, 69,71, 72, 77 . 359 . 467 284, 287 V. Shrewsbury and Bir- mingham Railway Co. , 810 ~ " ■ 934, 935, 936 V. Smith, V. Telfourd, V. Webster, , V. Woods, Johnston's Estate, Re, Johnstone v. Lumb, . JoUands v. Burdett, Jones V. Bone, V. Bruce, . V. Collier, . V. Cj'oucher, T. Cuthbertson, V. Davids, V. Edwards, V. Green, . V. Harris, . V. Jones, . V. Kearney, V. Laughtoa, V. Lock, T. Mitchell V. Morgan, V. Noyes, . V. Powles, V. Ricketts, 357 . 864 . 889 . 84 . 511 . 520 . 816 651, 654 . 359 . 284 . 515 . 112 . 371 . 858 502, 509 53, 56, 810 . 51 . 22 . 263 887, 902 . 19 73, 96 . 631 595, 609 V. Selby, 907, 919, 921, - 936, 930, 935, 936 V. Smith, . . . .628 , lessee of Moffett, v. Whit- taker, . 283 V. Williams, ^ 69, 684, 687 Jorden v. Money, . 783 Joy V. Kent, . 568 Joyce V. Hutton, . 282 Joynes v. Statham, . 783 Judd V. Pratt, . 845, 356 TABLE OP CASES XXVU PAGE PAOE Justice V. ■Wynne, • • 266 Knight V. Knight, V. Majoribanka, 153, 155 525 174 Kampfv. Jones, . , 351 V. Mosely, 767 Kiiy V. Cock, , 782 Knights V. Atkins, 835 Kay V. Johnston, 201 807 Knott, Ex parte, . . 618, 619 634 V. Smith, . , 594 Kiiye V. Moore, .... 825 Keane, In re, , 521 Koeber v. Sturgis, . 454, 467 475 V. Roberts, , 81 Kynaston v. Kynaston, . 633 650 Keats V. Hewer, . , , 217 Keays v. Lane, . 511 Lacam v. Merlins, 658 Keech v. Sandlbrd, , 44, 45 Lacey, Ex parte, 12,3, 136, 14«, Keer v. Brown, . , . 493 149, 150, 151, 154, 162, Keily v. Keily, . , 396 163, 164, 173 176 Kekewich v. Manning, 254. 375] V. Ingle, . . .321 619 277 278 283 Lacon v. Allen, . . . G7I\ 684 V. Marker, . 748 T. Mertins, . 324, 774, 784 Kellett V. Kellett, , , 901 Lacy V. Anderson, 357 Kellick, Ex parte, , 517 Laird v. Birkenhead Railway Co., 780 Kelson v. Kelso, 383 Lake v. Craddock, . 179, 188 192 Kemp V. Kemp, . 401 403 404 V. Gibson, 177, 179, 183, 184, Kempt on v. Packman, , 53 185, 188, 189, 193 Kendall v. Beckett, . , 610 Lamb v. Lamb, . . . 357, 374 V. Marsters, . 45 Lambe v. Orton, 276 Kenge v. Delavall, 499 ,510 Lambert v. Overton, . 268 Kennell v. Abbot, , 902 V. Peyton, 23 Keniiey v. Wexham, . . , 795 Lamphier v. Despard, 654 Kenrick V. Beauelerk (Lord), , 93 Lamplugh v. Lamplugh, 204, 219, V. Wood, 526 220, 221, 223 Kensington, Ex parte, 376', 678J Lancaster v. Evors, 864 681 683 and Carlisle Railway V. Dolland , 518 Co. V. Northwestern Keon V. Magawley, , 74 Railway Co., . 816 Ker V. Wnuchope, 343 Lance v. Aglionby, . . 651, 654 Kerr's Policy, In re, . 695 V. Norman. . 408, 411, 431 Kettle V. Townsend, . 337 333 Lancy v. Pidrchild, 836 Kettleby v. Atwood, . , 836 Lane v. Dishton, 213, 214, 215, 316 Keys V. Williams, 680 V. Husband, 359 Kiddell v. Farnell, 363 V. Newdigate, 809 Kidney v. Coussmaker, 368 373 901 V. Page, 381, 383, 383, 384, Kilbee v. Sneyd, 150, 162 891, 392 Killick, Ex parte, 517 Langdale (Lady) v. Briggs, 664 V. Flexney, 45 150, 163 Langford v. Pitt, . . 834, 843 Kincaid's Trusts, In re, 466, 470 Langley v. Baldwin, . 5, 7, 8, 9 , 11 Kinderley v. Jervis, . 96, 620 Langmead's Trusts, In re, . 69 Kine v. Balfe, . 774 Langslow v. Langslow, . 344, 353 King V. Benson, . 679 Langstaff V. Nicholson, 311 V. Cotton, . 411, 417 Langston, Ex parte, . 678 V. Hamlet, . 599 V. Blackmore, 388 T. King, 351, 891 Lanham v. Pirie, 255 V. Melling, 4, 8, 9, n', 13, If , 16 Lanoy v. Athol (Duke of), 663, 663 V. Roney, . 239, 334, 343 Lansdovvne (Marquis of) v. Lans- V. Silvery, . 165 595, 601, 605 downe (Marchioness Dowager V. Smith, . 747 of) 747 Kindon v. Bridges, 204 209, 217, 320 Larkin v. Marshall, 509 Kingsley's Trusts, Re, . 531 La Touche v. La Touolie. . 496 Kingsmill v. Millard, . , 49 v. Liican (Earl of), . 258 Kirk V. Webb, . , 213 Lassence v. Tierney, . 781 Kirke v. Kiike, . . 654 Laurie v. Bankes, 394 Kirkham v. Smith, 341 V. Clutton, 876 Kirkman v. Miles, 889, 869 Lavender v. Stanton, . 74 Kirkwood v. Thompson, . 152 Law, In re, .... 239 Kirkman, In re, . 507 ,v. Bagwell, 257 Kirwan v. Daniel, , 258 V. Indisputable Life Policy Kuiglit V. Bowver, . 166 Co 286 xxvui TABLE OF CASE! Lawes v Bennett, 853, PAOE 854 Lawley v. Hooper, 547, 563 Lawrence v. Beverley. 834 Lawrence v. Campbell, 258 V. Lawrence, 357, 358, 3(i7 V. Macgs, . 53 Lawrenson v. Butler, . 243 Lawrie v. Baukes, 307 Lawson v. Hudson, 658 V. Lawson, 658, 907, 31 li 918, 935, 93G, 939 V. Wright, . 108 Layard v. Maud, 690 Layton v. Layton, 467 Leak V. Morrice, . 784 Lecbmere v. Broiheridare, . 490 V. Carlisle (Earl of), 835, 836, 837, 849, 871 Y. Charlton, . 663, 663 V. Clamp, . . .694 V. Lechmere, 335, 837, 838 Lee V. Alston, . 701, 760, 762, 7()3 V. Esi-remont, . . 345, 448 V. Fi-ruie, . . . 387, 393 v. Grundy, .... 507 v. M 11 gge ridge, . . . 495 V. Prieaux, . . . 515, 516 V. Vernon (Lord), . . 57 Leeds (Duke of) v. Amherst (Earl of), . 175, 749, 763, 766, 767, 773 Leeming, Ee, ... Lees V. Lees, V. Nuitall, . Legalt V. Sewell, 3, 5, 10, Legg V. Goldwire, Leicester v. Foxcroft, . Leigh V. Lloyd, . Leinster (Duke of), Ex parte, Leman v. Newnham, . Lemon v. Lemon, Lench v. Lench, . . 213, Le Neve v. LeNeve, Leonard v. Sussex (Earl of), 6, 11, 13, 16, 33, 38 Lesley's case, ... 56. 57 Leslie v. Devonshire (Duke of), 895 Lester v. Foxcroll, . . 768, 774 Lett V. Randall, .... 366 Lewers v. Shaftesbury (Earl of), 817 . 857 20, 38 . 156 11, 17, 27 17, 89, 41 . 768 . 83 , . 868 . 658 . 358 , 214, 215 . 688 Lewin's Trusts, In re, . '^'^'i. Lewis V. Hillinan, 43, 151, 15^ V. King, , 343 V. Lane, . 311 V. Lewis, . 670 V. Mattlii'ws, 516 519 V. Nangle, . 664 V. Rees, , 283 L'ddard v. Liddard, , 34 Life Association of Scotland V. Siddal, 174,175,451, 4->2, 4-iO, 466 Like V. Baresford, , 471 Lilford V. Powis-Keck, , 321 Lillia V. Airey, 496, 499 Lincoln College (case of) • . 703 Lincoln (Countess of), v. New- castle (Duke of), 18, 20 Lincoln v. Wright, . . .783 36, 37 . 779 . 516 . 824 834, 885, 807, 870 . 164 . 521 . 670 . 768 42, 3.-8 . 173 Lindow V. Fleetwood Lindsay v. Linch, Lind-!cll V. Thacker, Lingen v. Simpson, V. Snwray, Linwond, Ex parte, Linzee's Settlement, In re, Lipscomb v. Lipscomb, Lister v. Foxcroft, V. Hodgsnn, V. Lister, . V. Turner, . Little Steeping (Rector of parte, Liveipoole Borough Bank v ner, .... Lleveilyn v. Mackworth, Llewellin v. Cobiiold, . Lloyd V. Attwood, V. Baldwin, V. Chuiie, . V. Cocker, . V. Loaring, V. London, Chatham Dover Railway i V. Mason, . V. Williams, Loader v. Clarke, Loaring, Ex parte. Loch V. Bagley, . Locke V Lonias, . Lock hart v. Hardy, V. Reilly, Lockwood, Ex parte, V. Salter, Loddington v. Kine, Loffus V. Maw, Loraas v. Wright, Loraax v. Lomax, Lombard v. Hickson, . London Brighton Railway Co Fairclough, (Bank of) v. Tyrell, (City of) v. Nash, Long v. Kent, . V. Long, v Wharton, Longmate v. Ledger, . Loosemore v. Knapman, Lord V. Jett'kins, V. Wight wick, Lorimer v. Lorimer, , Ex Turl 48 803 345 . 423 . 175 66,80 . 263 . 41 . 833- and :o., . 816 4'n 435, 443, 400, 461 . 431 . 311 . 39 . 75 . 657 . 113 . 48 . 510 . 7, 13 783, 783 . 281 . 672 . 52 V. . 935 . 159 . 807 . 850 . 371, 404 . 568 . 172, 593 . 662 598, 605, 609 . 646 217, 219 Lov;it (Lord) v. Leeds (Duchess of) Lovatt V. Knipe, . Lovett V. Lovett, Low V. Carter, V. Holmes, . Lowes V. Lowes, . Lowndes v. Bettle, Lowry v. Dufferin (Lord) 765 45 463 317 170 363 749 234 TABLE OF CASES. XXIX PAGE 155, 156, 833 . fi39 . 783 206, 211, 221 . 503 693, Lowther v. Lnwtlier, . Lowtliian v. Hasel, Loxley v. Heath, Loyd V. Read, Luard, Ex parte, . Lucas V. Bnindreth, V. Comerford, . V. Doirein, V. Lucas, . Lucena v. Luceiia, Luckin v. Rushworth,. Ludlow, Ex parte, LulF V. Loid, Luiiib V. Milnes, . Lumley v. Wagner, Lunn V. Thorntou, Lush's Trusts, In re, . Lushington v. Boldejo, V. Sewell, . Lutkins v. Leigh, Lutterell's case, . Luttrell V Olmius, Lycett V. Stafford, &c.. Railway Co., . • . Ljddon V. Ellison, V. Moss, Lysaght v. Royse, Lyster v. Dolland, V. Foxcroft. Lytton V. Great Northern Rail way Co., .... 847 807 680 . 540 . 235 51, 52 . 858 . 154 454, 475, 504, 518 815 935 473 751, 765, 7CB 658 673 723 248 310 36 175 404 189 768 Maber v. Hobbs, . . .421 M'Askie v. M'Cay, . . 781, 783 Macauley y. Philips, 434, 436, 437, 488, 440, 447, 452, 471 M'Call V. M'Call, M'Calmont v. Rankin, M'Carlhy v. Goold, . M'Cleland v. Shaw, . Macclesfield (Earl of) 357 . 804, ir06 504 . 653, 654 Davie, 833, 834 448, 469, 470 . 261 255, 288, 415 . 262, 280 939, 934, 985 476, 691 483, 484 154, 174 . 423 359 M'Cormick v. Garnett, M'Culloch V. Bland, . M'Donnell v. Hesihlge, M'Fadden v. Jeiikyns, M'Gonnell v. Murray, M'Henry v. Davies, . Machorro v. Slonehouse, M'Kenna's Estate, Re, M'Keogh V. M'Keogh, Mackiiinon v. Slewart, Mackreth v. Symmons, 389, 309, 313, 314, 323, 326, 337, 328, 617 M'Larty v. Middleton, . . 808 M'Lcod V. Drummond, 64, 81, 84, 86, 87, 88 M'Mahon v. Burchell, . . 448 M'Mullen v. O'Reilly, . . 87 Macnaniara v. Jones, . . . 341 M'Noillie v. Acton, ... 80 M'Queen v. Farquhar, . 388, 393 Muddison v. Andrew, . 401, 404 PAUB Maddison v. Chapman, . . 346 Magawley's Trust, In re, . . 284 Magrath v. Morehead, ... 21 Maguire v. Dodd, . . 263, 934 V Scully, . . 21, 23 Mahon (Lord) v. Stanhope (Lord), 750, 751 Mair v. Himalaya Tea Co., . .811 Miijor V. Lansley, . . . 489 Majoribanks v. Hovenden, . . 237 Malet, In re, .... 48 Mallabar v. Mallabar, 838, 874, 876, 878, 901 Mallin's Settled Estate, In re, . 289 Malmesbury (Earl ol) v. Malmes- bury (Countess of), . . 41, 43 Mall me v. Geraghty, . . . 694 Malony v. L'Eatrange, . . 175 Manchester and Southport Rail- way Company, In re, . . 843 Mangles v. Dixiin, . . . 331 Mann v. Copland, . . . 654 Manning V. Gill, . . . 225, 279 Manningford v. Toleman, . . 689 Mansell v. Mansell, 698, 703, 705, 731, 734, 725, 736 Mant V. Leith 4ii3 Mara v. Manning, . . 493, 511 March v. Fowke, . . .653 V. Head 429 Mare v. Sundlbrd, . . .586 Margetts v. Barringer, . . 515 Margrave v. La Hooke, . . 628 Marker v. Marker, . . 7:0, 758 Markwell v. Markwell, . . 383 Marlborough's (Duke of) Estates, 48 Marlborough (Duke ol) v. St. John 766 Maroney v. O'Dea, . . .609 Marsack v. Lvster, . . . 456 Marsden's Trusts, In re, . 385,386 Marsh v. Lee, . 610, 614, 615, 617 V. Wells, . . . .748 Marshall v. Bou^field, ... 28 V. Fowler, . . .466 V. Gibbings, . . . 447 Marston v. Go wan, . . . 233 Martin v. Mitchell, 232, 433, 435, 439, 444 V. Nutkin, . . .815 V. Powning, . . .164 ex dem. Tregonwell v. Strachan, . . .736 Mason v. Abdy, 546, 567, 575, 578, 583 v. Mason, . V. Mitchell, Massey v. Davies, V. Parker, Massy v. Bowen, V. Hayes, . Master v. Fuller, . Mather v. Fraser, V. Norton, 33, 860 . 530 . 158 . 519 516, 519 516, 519 496, 498 . 695 . 80 XXX TABLE OF CASES. PAQi; PAQB Matson v. Denis, . 186 Mill V. Hill, . 46, 47 V. Swift, . 851 53, 173 Mattliew V. Bowler, . 311, 313 Millard v. Harvey, , 775 Mattliewman's case (Mrs ), 503, 505 Miller v. Ex parte, , 683 Matthews v. Goodday, 694 V. Cook, 601, 602, 609 Maugham v. Mason, . . 900 T. Harrison, . 263 Maundrell v. Maundrell, 394, v. Miller, 920, 925 338, 624 926 939, 930 Maunsell, Ex parte, 868 V. Thurgood, . 346, 367 V. O'Brien, . 57 Millet V. Rowse, . , 471 V. While, . .' 783, 783 Mill's Eslale, Re, . , 2(i3 Mawhood v. Milbanke, . 514 Mills V. Mills, , 236 Maxted v. Paine, . , , 800 V. Bpear, , 388 Maxwell's case, . . 236 Milne v. Mdue and Fowler, 504 Maxwell V. Hyslop, . 357, 667 Milner v. Colmer, 437, 448 V. Maxwell, . 357, 667 V. Wilmer, 471 V. Montacute, 788 Milnes v. Busk, . 494, 506 May V. May, . 334 V. Gery, . 812 V. Roper, , , 866 V. Slater, . 653, 657 V. Skey, 476 Milroy v. Lord, . 263 Mayhew v. Crickett", . 106, 107, 109 Milward's Estate, In re, 239 Mayn v. Mayn, . 24 Minchin v. Mincliin, . 40,5 Mead v. Hide, '. 646, 657 Minct T. Hyde, . 468 V. Orrery, . . 81, 86, 87 Mitford V. Mitford, 329, 449 Mealis v. Mealis, 436 Mocatta V. Lousada, . 402, 404 Medley v. Horlon, '. 538, 529 Mcfifett V. Bates, . S50 Medlicott v. O'Donel, . 610 Mollincux V. Powel, . 746 Medwiu v. Snndham, . . 331 Molony v. Kennedy, . 511 Meek v. Kettlewell, 365, 374, 375 V. Kernan, 163 Meere's (Sir Thomas) case, ' . 549 Molyneaux Minors, In re, . 409 Meller v. Woods, , , 694 Money's Trusts, In re, 54 Mellersh v. Bridger, . . 664 Money v. Jorden, 783 Mellish Y. Valliiis, , 667 Montefiore v. Browne, 35 9, 360 Menzies v. Lightl'oot, . , , 633 Montesquieu v. Sandys, 16 4, 166 Merchants' Trading Co. V. Ban- Moodie v. Reid, . 332 ner, .... , , 816 Moody V. Matthews, . 45 Meredith v. Vick, 870 Moor V. Rycault, . 478 V. Watson, . , 932 Moore v. Butler, . 34 5, 373 Merriman's Trusts, Re, , , 466 T. Choat, . 693 Merry v. NicUalls, , , 801 V. Culverhouse, 687 Messenger v. Clarke, . , 512 V. Darton, 263, 937 Metropolitau Rail. Co. v . Wood- 93 3,936 house. 840 V. Edwards, , 784 Metcalfe v. Pulvertoft, . 383 V. Greg, . , 69 3, 693 Meure v. Meure, . 36 , 31 Y. Moore, . . 52 8, 667 Meux V. Bell, . 276 V. Morris, . , 535 Mews V. Mews, . 494 V. Walter, . , . 519 Meyiiell v. Surtees, '. 774 775 V. Webster, 513 Miall V. Brain, . 363 363 More V. Maybow, . 394 Michell V. Michell, 651 Mores v. Huish, . , 49 3, 494 Miclielmore v. Mudge, 685 Morgan v. Malleson, . , . 363 Micklethwaite v. Micklethwaite, V. Milman, , . 334 752 753 v. Morgan, 345 37 3, 511 Middlebrook v. Bromley, 355 V. Surman, . . 400 Middlecombe v. Marlow, 478 Moriarty v. Martin, , 35 1, 354 Middleton v. Greenwood 807 Morley v. Bird, . . 185 V. Magnay, 326 V. Webb, . , . 60 T. Middleton, '. 243 673 Moroney v. O'Dea, . . 609 Midland Counties Railway Com- Morphett v. Jones, 774 , T 6, 777 pany V. Oswiu, 840, 841, 864 865 Morrell v. Fisher, . 648 Mignan v. Parry, , 41 Morres v. Hodges, . 54, 5.-. Miles v. Durnlord, , , 82 Morret v. Paske, . 619, 620 ,63 8, 629 V. Knight, . , 397 Morris v. Barrett, , . 191 V. Williams, . 510 V. Burroughs, . . . 343 TABLE OF CASES. XXXI 774, PAOE Morris t. Chambres, . . . 329 V. Kfavsley, . . .193 V. Morris, . . 755, 756, 703 Morrow v. Busli, . . . 646, 653 Morse's Settlement, la re, . 41, 43 Morse v. Martin, . . . 232, 235 V. Palmer Ho V. Royal, . 131,154, 174, Mortimer v. Davies, V. Orcliard, V. Sliortall, Mortlook V. Duller, Moseley v. Virgin, Mosley v. Ward, . Moss, Ex parte, . Mounlt'orcl, Ex parte, Mower v. Orr, Miiggeriflge v. Stanton Muir V. .Tolly, Mules V. Jennings, Mulhallen v. Marnm, Mullineux v. Mullineux, V. Powell, Mulock V. Mulocli, Mulvany v. Dillon, Mumma v. Mumma, 175 211 779 41 234, 241 . 808 255, 345 671) 676 850 512 318 . 851 . 52 . 531 . 746 . 648 45, 52 204, 219, 221, 233 776, 778, 779 Railway . 310 220, 222, 223, 234 . 285 156 Mnndy v. Jolliffe, Munns v. Isle of Wiglit Company, Murless v. Franklin, Murphy v. Aliraliam, V. O'Shea, . Murray's Executors' case, . . 171 Murray y. Barlee, . 488, 496, 497, 498, 500, 501, 509 V. Elibank (Lord). 431, 439, 460, 461 V. Palmer, . . . 175 V. Parker, ... 41 Musgrave v. Parry, . . 699, 723 Musters v. Wriglit, . . .511 Nail V. Punter, . . . .510 Nairn v. Prowse, 291, 298, 302, 303, 319 Nandike v. Wilkes, . . 22, 239 Nantes v. Gurrock, . . . 509 Napier v. Napier, . . 464, 465 Nash V. Worcester Impvt. Com- mrs., .... 842 National Bank of Australasia v. Cherry, 676 Naylor v. Winch, . . .163 Naylor v. Wright, ... 41 Neale v. Cripps, . . . .749 V. Day, . . . .284 Neesom v. Clarkson, . . . 325 Nelson v. Bealby, . . . 188 V. Booth, . . . .505 V. Page, . . . 666, 668 V. Stocker, . . .431 Nesbitt V. Berridge, . . 596, 597 Nesbitt V. Meyer, . . .810 V. Tredennick, 45, 46, 51, 57 Nettleship, Ex parte. In re Burk- hill, . . 678, 681 v. Nettleship, . . 505 Neve V. Pennell, . 634, 635, 687 Newbegin v. Bell, . . . 655 Newbery v. James, . . .815 New Brunswick & Canada Railw. & Land Co. (Limited) v. Mug- gcridge, 798 Newbold v. Roadnight, . . 654 Newcastle (Duke of) v. Lincoln (Countess ot), 25, 34 V. Vane, 701,743 Newcastle (Duchess of) v. Pel- ham, 835 Newcomen v. Hassard, . . 489 Nowenham v. Pemberton, . . 446 Newhouse v. Smith, . ' . 657, 664 Newlands v. Paynlitr, . 493, 513, 524 Newman v. Johnson, ... 60 V. Newman, . . 37, 668 V. Wilson, . . . 466 Newnham v. Graves, . . . 803 Newton V. Askuw, . . . 855 V. Hunt, . . 605, 606 V. Preston, . . 213, 214 V. Reid, . . . .521 V. Roe, . . . .509 Nicholson v. Mulligan, . 315, 316 V. Tutin, . . . 259 Nickels v. Hancock, . . . 814 Nixon V. Nixon 495 Noel V. Henley (Lord), 653, 655, 657, 658, 664, 898, 902 V. Noel 664 Norcott V. Gordon, . . . 359 Norfolk's (Duke of) case, . . 3 Normandy (Marquess of) v. Berkly (Lord) 789 Norris v. Jackson, . . 774, 808 V. Le Neve, . . 54, 56 V. Wilkinson, . . 679, 680 Northey v. Northey, . . .538 Northumberland (Earl of) v. Ayleslord (Earl of), . . 373 Norton, Ex parte, . . . 446 V. Mascall, . . . 814 V. Turvill, 482, 484, 49S, 510 Norway v. Rowe, . . . 190 Nott V. Hill, . 547, 570, 593, 606 Notlley V. Palmer, . 357, 366, 868 Noys v. Mordaunt, 331, 337, 338, 341, 347, 350 Nugent V. Gilford, . . 60, 86, 87 Nun V. Fabian 776 Nutbrown v. Thornton, 793, 823, 824 Oakes, Ex parte. Re, Worters, . 683 O'Brien V. O'Brien, . . . 756 O'Fay V. Burke, . . . .334 O'Ferrall, Ex parte, . . 430, 448 Ogdeu V. Lowry, . ... 94 XXXll TABLE OF CASES. PAGE Osrlimder v. Baston, . . . 437 Ogle V. Cooke, 831, 832, 875, 884, 885, 88S O'Hara v. Cliaine, . . . 3f)3 O'Herliliy V. Hedges, . . .773 O'Keiite V. Caltliorpe, . \ 495 Oldham v. Hngbes, . . 836, 865 Oldin V. Sambourn, . . 1C9, ITO Oliver v. Court, .... 155 Olliver V. King, .... 385 O'Neal V. Mead 673 Onge V. Truelock, . . . 108 Oiiental Inland Steam Co. v. Briggs, 798 Ormond (Marquis of) v. Kinners- lev, ... . . 764, 765 Orrell v. Orrell, .... 357 Osborn f. Bellman, ... 20 V. Morgan, . 446, 459, 470 Osborne v. Williams, . . . 564 O^mond v. Fitzroy* . , . 125 Oswell V. Probert, . 446, 449, 451 Otler V. Vaux (Lord), . 53, 628 Ouseley v. AnstiutUer, 263, C4B, 650 Ousley V. Carroll, . . .917 Owen V. Foulkes, . . 163,164 V. Homan, .... 496 V. Williams, . . 46, r.2, 54 Owens V. Diclienson, 498, 500, 501, 510 Oxenden v. Compton (Lord), 838, 856, 857, 851, 861 V. Oxenden, Oxenbam v. Esdaile, Offord V. Provund, Oxford (Earl of) (Lady), . . Packer v. Packer, V. Wyndham, Packington's case, Padbuiy v. Clark, Page V. Adam, V. Broom, . V. Cox, V. Home, . V. Leapingwell, . Pagel's case, Paget V. Huish, . Pagett V. Hoskins, Pain V. Coombs, . V. Smith, Paine v. Hutciiinson, . Palmer's Will, In re, . Palmer v. Wheeler, V. Young, Papillon V. Voice, 5, 12, 474, 476 . 334 780, 807, 809 V. Rodney . 659 . 468 .429 . 7.0 343, 345, 346, 373 63, 08, 70, 71, 77 . 356 . 283 388 903 7^9 653 60 785 694 801 240 393 50 355, 774, Pares v. Pares, . Parker v, Bolton, V, Brooke, 45, V. Clarke, V. Housefield, V. Smith, . 17, 18, 39, 30, 834 . 388 28, 30 53, 483, 4U3, 507, 515 . 688 . 694 . 778 Parker v. Sowerby, Parlies Ex parte, V. White, 154, 491, 494, 530, 537, Parkinson v. Hanbury, Parnell v. Kingston, . . 263, Parrot v. Palmer, V. Sweetland, . . 314, Parry v. Wright, Parsons v. Briddock, V, Dunne, . . 375, V. Freeman, . Partericlie v. Powlet, . Partridge v. Pawlet, . Piissiugham v. Sherborn, Patch V. Shore, . Paterson v. Murphy, . 258, 260, V. Scott, Patterson, Re, Pawlet V. Delaval, . . 437, (Lord), case of, Paxton V. Newton, Payne v. LilUe, . . . 506, V, Mortimer, . . 381, Peachy's (Sir John) case, Peacock v. Burt, T. Evans, V. Monk, 483, 484 488, 489 re, Peake, Ex parte, V. Penlington, Pearce' v. Crutchtield, Poard V. Kekewich, Pearmain v. Tvviss, Pearae v. Lisle, . Pearse v. Baron, . and Proiliero, Ex parte, 680, Pearson v. Amicable Ass. Otf., V. Benson, V. New son, V. Pearson, Pease v. Jackson, Peckham v. Taylor, . Pedder's Settlement, In Pedder v. Mosely, Peillon V. Brooking, Pell V. De Winton, V. Northaiiipton, &c., Railw. Co., Pemberton v. McGill, Pembroke v. Thorpe, Pembrooke v. Friend, Pcniold v. Bouch, T. Mould, Penhall v. Elwin, Penn v, Baltimore ("Lord), Pennell v. Deffell, V. Millar, Pepper v. Dixon, Peppercorue v. Church Perens v, Johnson, Perfect v. Lane, . . 598, 606, Perks, Ex parte, . Perkyns v. Baynton, 394, 485 ; ,492, 311, 83, 165, 262, 839, 258, 530, 493, 773, 605, 263, PAGE 363 319 538 153 373 761 316 638 110 468 659 747 704 153 3K3 363 651 933 5015 396 807 507 783 213 617 593 496 329 36 471 36 673 833 36 683 2«9 173 166 359 624 268 871 269 525 75 310 520 809 667 479 469 284 791 215 594 363 bOl 158 609 163 658 TABLE OF CASES. xxxni Perrot v. Perrot, . . .744 Perry v. Whitehead, . . . 232 Perry-Heniok v. Attwood, . . 691 Peter v. Rich, . . . .106 Peters v. Grote, . . . 475, 505 V. Nicholls, . . . 384 Peto V. Hammond, . . . 326 Petre v. Duncombe, . . . 108 V. Espinasse, . . . 288 Pettiward v. Prescott, . . 356 Petty V. Styward, . . . 185 Philips V. Parry, .... 672 Phillips, Ex parte, 856, 857, 859, 860 V. Barlow, . . . 765 V. Eastwood, . . 655 v. Edwards, . . 773, 781 V. Gt. Western Railway Co., . . .816 V. Gulteridge, . . 625 V. James, ... 22 V. Phillips, 193, 194, 196, 624, 672, 889 Phillipson v. Kerry, . . 42, 288 Pioard v. Hine 502 Pickering v. Ely (Bp. of), . . 811 V. lUracomhe Railway Co , . . .620 V. Stamford (Lord), 365, 3()6 V. Vowles, . . 45, 47 Pickett V. LoggOD, . . . 593 Pickles V. Pickles, . . .388 Pidgeley v. Rawling, . . . 764 Pierce v. Scott, .... 77 Pierson v. Shore, . . 45, 861 Piggot V. Peniice, . 230, 242, 243 Piggott V. Strattou, ... 58 Pigot v. Bullock, . . . 76:-! Pike V. Vigors 150 Pilcher V. Rawlins, . . .618 Pilkington v. Gore, ... 58 Pilsworth V. Mosse, . . .220 Pimm V. Insall 96 Pinnel's case, .... 336 Piper V. Piper, . . .665, 666 Pitt V. Hunt, .... 452 V. Jackson, .... 511 V. Mackreth, . . . .115 Pitts V. Suowden, . . . 359 Playters v. Abbott, ... 53 Plenty v. West, . . . .648 Plumb V. Fluitt, .... 6;)2 Pockliugton V. Bayne, . . 401 Pole V. Pole, 48, 204, 206, 230, 224 v. Somers (Lord), . 346, 347 Pollard, Ex parte, . . .696 V. Clayton, 794, 795, 803, 807, 824 V. Greenvil, . . .232 Pollexfen v. Moore, 292, 293, 297, 301, 321 Polley V. Seymour, . . . 846 Pomfret (Earl of) v. Windsor (Lord), 624 Poole T. Middleton, . . 797, 803 VOL. I C Poole V. Olding 345 Pooley V. Budd, . . . 796, 824 V. Quilter, . . . 164 Popham V. Exham, . . 165, 173 Portland (Duke of) v. Topham, 383, 387, 399 Portmore (Earl of) v. Morris, . 129 V. Taylor, 594, 597 Postlethwaite v. Lewthwaite, . 57 Pott V. Todhunter, . . .283 Potter, In re, . . . 446, 471 Potts V. Curtis, . . 606, 607, 608 V. Potts, .... 34 Poulson V. Wellington, . . 408 Powell V. 303 V. Aiken, .... 762 V. Hankey, . . 506, 538 V. Hellicar, . . .934 V. Price, . . .23, 24, 42 V. Riley, . , . . 651, 656 Power V. Power, .... 666 Powis V. Corbet, . . . .629 Powlettv. Bolton (Duchess of), 764 Pownall V. Anderson, . . . 279 Powys V. Balgrave, . . . 747 Prankerd v. Prankerd, . . 223 Prees v. Coke, . . . .152 Price V. Blakeraore, . . .318 V. Byrne, . . 150, 151, 174 V. Carver, . . . .694 V. Fastnedge, . . . 629 T. Morgan, . . . .737 V. Penzance (Corp. of), . 809 V. Pilce, . . 229, 363, 268 V. Williams, . . .813 Pride v. Bubb, . . . .493 Prideaux v. Lonsdale, . . 417, 421 Priestly v. Lamb, . . . 471 Primate v. Jackson, . . .614 Primrose v. Bromley, . . . . 107 Pritchard v. Ames, . . 493, 515 Proby V. Landor, . . 331, 387 Prole V. Soady, . . . 374, 783 Prosser v. Rice, . . . . 618 Proudley v. Fielder, . . .511 Pryce v. Bury, . . 676, 685, 694 Pryor v. Hill, . . . 446, 450 T Pryor, . . . .391 Pryse's Estates, In re, . . . 240 Pugh, Ex parte, . . . 464, 407 111 re 497 V. Smith 343 Pulteney v. Darlington (Lord), 346, 347, 374, 834, 837, 849, 867, 868, 869, 871 V. Warren, . . . 760 Pulvertoft V. Pulvertoft, . 255, 2(i3 Pusey V. Desboiivrie, . . . 371 V. Pusey, 820, 821, 833, 823, 834 Pybus V. Smith, 484, 494, 520, 526 Pye, Ex parte ; Ex parte Du Bost, 281 V. George, . . . 698, 705 T. Gorges 724 XXXIV TABLE OP CASES. PAOB PAOB Quennel v. Turner, . 646 Rhodes v. Moxhay, . 695 V. Rudge, . 646 Raby Castle, case of, . . 707, 749 Rice V. Gordon, . 87, 593 Eaikes v. Hall, . . . 80 V. Rice, . . 308, 337, 693 Rainsdon's Trusts, In re . 531 Rich V. Cockell, 355, 483, 489, 493, 508 Rakestraw v. Brewer, . . . 51 V. Whitfield, 838, 849 Ramsden v. Jackson, . . 280 Richards v. Chambers, . 495 RancIUfe (Lord) v. Parkyns V. Noble, . 760 (Lady), . 343, 345, 346 V. Syms, . 911 Randall v. Daniel, . . 33 Richardson v. Horton, . 96 V. Errington, . 150, 172, 174 V. Richardson,. 263, 276 V. Morgan, . 782 V. 'Smith, . 813 V. Randall, . 197 Richie v. Couper, . 158 V. Russell, . 46, 47, 56 Richmond v. North Lond. Railw. Rankin v. Barnes, . 393 Co . 841 V. Huskisson, . . 816 Rider v. Kidder, . 211, 215, 216, 317 V. Weguelin, . . 9ao Ridgway v. Wharton, . . 785 Ranking v. Barnes, . 387, 403 V. Woodhouse, . 898 Raphael v. Tbames Valley Railw. Ridout V. Lewis, . . 538 Co., .... . 809 V. Plymouth (Earl of), . 539 Rashleigh v. Master, . . 834 Rigby V. Great Western Railway Ratclitfe v. Barnard, . . 688 Co, . . . . 816 Ravensliaw v. HoDier, . 257 V. McNaiuara, . 108 Rawe V. Chichester, 45, 46, 53, 53 Rigden v.- Vallier, 184, 185, 186, 934 Raworlh v. Parker, . 259 Ripley v. Waterworth, 199, 892 Ray, Ex parte. . 516 Rishton V. Cobb, . 475 Rea V. Williams, . 184 Rittson V. Stordy, . 845 Read v. Crop, . 364 Roadley v. Dixon, 359, 362 V. Sneil, . . 28 Roberts v. Croft, . 684 Reddel v. Dobree, . 939 V. Dixwell, . 28, 511 Redding v. Wiikes, . 773 V. Kingsley, . . 41 Redinglon v. Redington, 206, 215, V. Lloyd, 373, 279 21S, 221, 223 , 224, 225, 664 V. Pocock, . 654 Redshaw v. New hold. . 694 V. Roberts, . 654 Reece v. Trye, . 825 V. Smith, . 361 Reed v. Norris, . 114, 156, 162 v. Spicer, . 518 V. Shergold, . 337, 495 V. Trenayne, . 546 557, Reesv. Coke, . 173 569, 574, 583 Reese River Silver Mining Co. v. V. Tunstall, . 174, 175 Altwel), . 385, 386, 287 V. Walker, 887, 889 Reeve v. Reeve, . . 663 Robertson, In re, . 865 V. Rocher, . . 448 V. Norris, . . 152 Reeves v. Creswick, . . 53 Robinson v. Chartered Bank, . 797 V. Reeves, . 834 V. Davison, . . 617 Regent's Canal Co. v. "Ware, . 841 V. Gee, . 658 Reg. V. Robinson, . 113 v. Litton, 700, 708 ,733, V. Salter, . . 113 745, 746 Reid V. Reid, 351, 385, 405 v. London Hospital V. Shergold, . 337, 495 (Governors of). Reid's case, . . 336 889, 901 Reillyv. Walsh, . . 190 v. Lowater, 67, 68, 93, 96, 97 Rentorth v. Ironside, . . 617 V. Nesbitt, . . 633 Reudleshara T. Woodford, . 351, 356 V. Preston, . 185, 180 Jiennie v. Morris, . 801 V. Ridley, . . 176 V. Ritchie, . 530 V. Robinson, 853, 863 Rex V. Williams, . 184 V. Rosher, . . 695 Reynard v. Spence, . 363, 372 V. Taylor, . . 883 Reynell v. Sprye, . 593 V. Wheelwright, 375, 536 Reynolds, Ex parte, . . 173, 174 V. Wilson, . 109, 365 V. Clayton, . 545 Robson V. M'Creight, . . 386 V. Godlee, . . 892 Roche V. O'Brien, 174, 175 V. Torin, . 365 Rochford, Re, . 560 V. Waring, . . 779 V. Fitzmaurice, . 33, 28, 30 Rhodes v. Cook, . . 394 Rodgers v. Marshall, . 229, 333 TABLE OF CASES. XXXV Rodhouse v. Mold, Roe V. Mitton, Rogers v. Challis, V. Mackenzie, V. Rogers, V. Skillicorne, . Rolfe V. Chester, v. Gregory, V. Perry, . Rollfe V. Budder, Roll V. HopUinson, V. Somerville (Lord) Ronayne's Estate, In re. Rook V. Worth, . Rooke V. Kensington (Lord) Rooper v. Harrison, . Roscommon v. Fowke, Rose V. Bartlett, . V. Sharrod, . V. Watson, . Rosenthall's Settlement, Re, Ross's Trust, Rossiter v. Rossiter, Rosswell's case, . Rotheram v. Rotheram, Roundell v. Currer, Routledge v. Dorril, . Row V. Bowden, . Rowe V. Jackson, 750, 66, 68, 78 628, 639 86, 87, 215 666 4W3 622 765 159 859, 871 . 664 616, 619 . 250 337, 840 . 537 323, 334 . 511 . 537 . 23 . 242 671, 673 . 373 . 388 . 204 433, 434, 437, 439, 444, 461 V. Rowe, . . . .508 V. Teed, . . . .784 Rowland v. Cuthbertson, . . 366 V. Morgan, ... 34 Rowley v. Adams, . . . 200 V. Rowley, . 385, 391, 393 V. Unwin, . . . 506 Rowson V. Harrison, . . . 667 Rudge V. Weedon, . . 531,532 Rumbold v. Rumbold, . . 356 Rumboll V. Rumboll, . 205, 208, 320 Rumford Market case, . . 45 Rundle v. Kundle, . 204, 209, 215 Rushbrook v. Lawrence, . . 153 Rushlorth, Ex parte, . . .162 Rushwortb, Ex parte, . . 114 Rushworth's case, ... 51 Russel V. Russel, 674, 675,676, 678, 680 Russell V. Plaice, .... 83 Russell Road Purchase Money, In 668, 673 . 384 803, 817 . 107 Rutter V. Maclean, Ryall V. Rowles, . V. Ryall, . Ryan, Thomas, In re, 16 Rycroft v. Christie, Rylaud v. Smith, Ryle v. Swindells, 617 . 346, 347 375, 913, 931 213, 314, 315 , 193, 212, 780 . 364, 519 . 478 . 606 Sabin v. Eeape, . . 95 Sadlier v. Butler, . . 345, 369 Sadler v. Pratt, . . 393 Sackville West V. Viscount Holmesdale, . 21,33,37,39 St. Albyn v. Harding, . 595, St. Germains (Earl of) T. Crys- tal Palace Railway Company, . St. George v. Wake, Salkeld v. Abbott, Salmon v. Cutts, . V. Gibbs, Salt V. Chattaway, Salter v. Bradshaw, Salwey v. Salwey, Siimpayo v. Gould, Samuel v. Samuel, Samwell v. Wake, Sanders v. Page, V. V. Sanderson 417, 165, 385, Richards, Rod way, V. Cockermouth and Workington Rail. Co., . . 898, 150, 609 310 420 108 175 389 886 595 473 36 38 647 452 83 813 809 T. Walker, . . 150, 174 Sandham v. Medwin, . . . 243 Sandwich (Earl of) Y. Lichfield (Earl of), . . 57 (Lord), case of, . . 396 Sanger v. Sanger, . . . 537 Sarth V. Blantrey, . . 331, 234 Saunders v. Dehew, . . . 623 Savage v. Carrol, . . 776, 779 T. Humble, ... 81 Savery v. King, . . . 165, 174 Savile v. Blacket, . . . 6i4 T. Kinnard, . . . 840 Savin V. Savill, . . . .375 Saville v. Saville, . . .708 v. Tankred, . . 833, 824 Saville's case, ... 13, 758 Sawer v. Shute 469 Sayer v. Pierce, . . . 761, 763 V. Sayer, . . . .239 Sayre v. Hughes, . . . 318 Scales V. Baker, . . . .508 V. jMaud, . . . 263, 268 Scarborough v. Borman, . . 523 Scarsdale (Lord) v. Curzon, 25, 34 Scatterwood v. Edge, . . .723 Scawin v. Scawm, . . 223, 234 Scholfield V. Heafield, . . 694 Schroder v. Schroder, . . 351, 356 Scott, Ex parte 694 Scott's Estate, Re, . . . 618 Scott V. Beecher, . 658, 660, 661, 664 V. Davis, . . . 339, 527 V. Kuox, . . . .109 V. Rayment, . . 810, 817 V. Spashett, . . 447, 466 V. Steward, .... 37 V. Tyler, ... 81, 87 Scould V. Butter, . . . .786 Soriven v. Tapley, 434, 441, 444, 460 Sci'oggs V. Scroggs, . . . 398 Scroope v. Sci'oope, . . 204, 220 Soudamore v. Scudamore, 831, 835, 884 Seabourne v. Powel, . . .51 Seagood v. Meale, . . .773 XXXVl TABLE OF CASES. . 243 . 288 . 27 . 32 . 348 . 267 865, 867 . 84 625, 628 296, 321 . 193 40, 41 des. . 162 Seagram v. Knight, 174, 744, 764, 765, 767 Seagrave v. Kirwan, Beale v. Hayne, . V. Scale, Sealy v. Stawell, . Seaman v. Woods, Searle v. Law, Seeley v. Jago, . Selby V. Cooling, V. Porafret, T. Selby, Selkrig v. Davies, Sells V. Sells, Selsey (Lord) v. Eh( Sergeson v. Bealey, 229, 232, 234, 857, 858, 859 Serle v. St. Eloy, 638, 636, 639, 657, 672 Sewell V. Moxsy, . . .272 V. Walker, Seys V. Price, Seymour v. Tresilian, Sliackle v. Baker, Sliaftesbury (Earl of J v. Marlbor ougb (Duke of), Shafto V. Adams, V. Sbaflo, . Sbakel v. Marlborough Shallcross v. Wright, Shanley v. Harvey, Shannon v. Bradstreet, 229, 232, 234, 240, 242 Shard v. Shard, . . . .865 Shargold v. Sbargold, . . 918, 921 Sharp V. Leach, .... 591 V. St. Shauveur, . . 845 Sharpies v. Adams, . . . 618 Sharpley y. Hurrel, . . 557, 569 Shattoch V. Shattoch, 495, 498, 503, 510 Shaw V. Borrer, 64, 67, 73, 75, 77, IbO 595 860 538 811, 815 53 . 608 . 658 (Duke ol), 695 . 652, 889 . 930 V. Bunny, . . 152 T. Dickenson, . 220 y. Fisher, . 797 798 V. Foster, . 078 V. Neale, 631 622 V. Weigh, . . 5, 9, 16 Sheddon v. Goodrich, . , 355 SheiBeld Gas Consumers' ( ^0. V. Harrison, . 798 810 Shelford v. Acland, . . 489 Shelley, Re, . 676 Shelley's case, . 8, 19, 21 Shelley v. Shelley, 35 Shelly V. Nnsh, . 603, 604 Sbelton v. "Watson, 28 Shepherd v. Gillespie, . , 802 T. Titley, 620 Shepley v. Woodhouse, , 549 Sheppard v. Murphy, . . 802 Sherman, Ex parte, 693 Sherwood v. Robins, . , 598 Shewell V. Dwarris, , 518 Shillibeer t. Jarvis, , 774 FAGB Shipperdaon v. Tower, . • 850 Shipton V. Rawlins, . . . 511 Shirley v. Martin, . . .610 Short V. Wood, . . . .867 Shower v. Pilck 360 Shrewsbury (Earl of) v. North Staffordshire Railway Co., . 48 Sibbering v. Balcarras (Earl of), 605, 609 Sichel V. Mosenthal, . . .802 Sidebolham, Ex parte, . . 806 Sidmouth v. Sidmoutb, 206, 211, 217, 219, 221, 222, 223, 224 Sidney v. Ranger, . . . 164 Siggers v. Evans, . . . 258 Silk V. Prime, . . 99, 280, 495 Simmonds v. Palles, . . 257, 258 Simmons v. Simmons, . . 494 Simson v. Jones, .... 478 Sisson V. Giles, . . . 375, 870 Skarfv. Soulby, . . . .284 Skeats v. Skeats, . . . 220, 223 Skegg's Settlement, In re, . . 865 Skelton v. Flanagan, . . . 394 V. "Watson, ... 31 Skett V. Whitmore, . . .214 Skey V. Bennett, . . . .696 Skidmore v. Bradford, . 218, 783 Sldngley, In re, . . . . 748 Skinner v. McDouall, . . .785 Slackford v. Long, . . . 882 Slater v. Willis, . . . .212 Sleech v. Thorrington, 427, 474, 475 Sloane v. Cadogan (Lord), 232, 268, 269, 270, 271, 272, 273, 284 Slooombe v. Glubb, . . 413, 431 Smith, Ex parte, . . . 683, 685 Smiih's Mortgage Account, In re, 863 Smith V. Ashton, . . 233, 235 V. Baker, 204, 209, 211, 327, 232, 233 V. Boucher, . . . 695 V. Camelford (Lord), 404, 506 V. Casen, .... 935 T. Cherrill, . . 285, 287 V. Chichester, ... 51 Y. Claxton, 830, 866, 890, 891 V. Constant, V. Cooke, . V. Death, . Dormer, Evans, . . Fitzgerald, Garland, v< V, V. V. V. Guyon,. V. Hibberd, V. Houblon, V. Hurst, . V. Kay, V. Keating, V. Lyne, . V. Matthews, 678, 683 760 397 721 320 654 284 66, 67 295, 803, 310 . 398 . 257 . 594 . 257 . 255, 348 193, 262, 448 T. Smith, 190, 197, 276, 466, 467, 667, 933 TABLE 01" CASES. XXXVU PAGR Smith V. Turner, . . . .776 V. Warde 225 Smithwick v. Smithwick, . . 846 Sneed V. Sneed, . . . 2B1, 236 Snellgrove v. Baily, 907, 911, 919, 930 Snelson v. Corbet, . . . 539 Soames V. Edge, . . . 809,818 Soar V. Foster, . . . .217 Sookett V. Wray, . 487, 495, 528 Solomon v. Solomon, . . . 665 Somerset (DuUe of) v. Cookson, 821, 832, 834 Somes V. British Empire Shipping (Jompany, .... Sonday's case, Sondes' (Lord) Will, In re, Soome V. Gh^n, .... Sopwith V. Maugham, . 372 South Eastern Railway Co , In re, Soutli Essex Gas Co , Re, . South Wales Railway Co. Wylhes, .... Sowarsby v. Lacy, Sowerby v. Fryer, Sowry V. Sowiy, Spackman v. Thubrell, Spalding V. Shalmer, . V. Thompson, Sparkes v. Bell, . Sparrow v. Shaw, Spencer v. Pearson, V. Spencer, V. Topham, Sperling T. Roohfort, . Spicer v. Dawson, V. S,picer, .... Spirett V. Willows, 334, 285, 464, 467, 472 812 11 39 i 569 373 868 171 V. 807, 809 . 74 766, 767 . 868 . 96 60, 77 . 638 . 509 . 9, 16 616, 617 401, 404 . 165 . 468 . 513 . 473 Sporle V. Whayman, . Spottiswood's case, Spottiswoode v. Stockdale, Spratley v. Wilson, Spring V. Pride, . Sproule V. Prior, . Spurrier v. Fitz, 645, 647, 648 . 173 . 471 . 199 864, 867 . 345 . 459 304, 220, 331 235 lOS, 233, 23, .593 107 43 811 57 773 386 405 564 668 .504 504 164 28, 31 Storer v. Great Western Railway Company, . . . 808, 809 Storry v. Walsh, . . .67, 84, 96 Strafford's (Lord) case, . . 133 Strahan v. Sutton, . . 358, 363 Strange v. Pooks, . . .108 Stratford v. Aldborough (Lord), 239, 241 V. Powell, . 21, 372, 373 V. Twynam, . . 169 Strathmore (Countess of) v. Bowes, 406, 414, 415, 416, 417, 433, 750 Stratton v. Best, . . . .346 V. Murphy. . . 53, 53 Streatfield v. Streutfield, 33, 41, 383, 341, 343, 374, 375 Street v. Righy, . . . .813 Stringer v. Harper, . . . 670 Strode v. Russel 233 Stroud V. Norman, . . . ,395 Stroughill V. Anstey, 71, 78, 78, 80, 87 Stuart V. Castlestuart (Lord), . 395 V. Ferguson, . . . 317 V. Kirkwall (Lord), 496, 49°, 499, 509 XXXVUl TABLE OP CASES. Stubbs v. Roth 51 v. SavttOQ, . . .470 Stump V. Gaby 175 Sturgia v. Champiieyg, 445, 446, 448, 451, 452, 453, 454, 475 V. Corp, . Suggitt's Trust, In re, Summers v. GriflBths, . Supple V. Lowson, Surcombe v. Piiiuiger, Surriilge's Trusts, lu re, Sutcliffe V. Cole, . Sutherland v. Brigga, . Swain v. Wall, . Swainson v. Swainson, Swan, Re, . Swan's Estate, In re, . Swan V. Holmes, . Swannock v. Lyford, . Sweetapple v. Bindon, Sweetman v. Sweetman, Swift V. Davis, . Sykes' Trusts, Re, Sykes v. Sykes and Smith, Symmes v. Symonds, . Symmcns v. Rankin, . Symonds v. Wilkes, Symondson v. Tweed, Symons v. Rutter, Sympson v. Hornsby, . Synnot v. Simpson, 489, 5a6 464, 467 . 5:^3 . 895 . 781 . 470 . 898 . 777 108, 108, 109 660 479 108 841 432 10,11, 27, 829, 834 . 372 . 223 255, 520 . 504 . 624 307, 308 . 529 . 779 . 849 . 366 . 260 Tagart, Ex parte, . . .695 Ta,t!;gart v. Taggart, ... 24 Tait V. Lathbury, . . .75 V. Northwick (Lord), . 647, 648 Talbot (Earl) v. Hope Scott, . 749 V. Radnor, . . . 350 V. Staniforth, . . . 595 Tamworth (Lord) v. (Lord), . Tanfield v. Davenport, Tanfield's case, . Tankerville (Earl of) v. Pawcett, Tanner, Ex parte, V. EUworthy, V. Wise, . Tapley v. Kent, . Tarditf v. Robinson, Tardiffe v. Scruglian, Tasbuvgh's case, . Tassell v. Smith, . Taster v. Marriott, Tate V. Hilbert, 924, Taylor v. Beech, . V. Davis, . V. Fleming, V. Hawkins, V. Haygarth, V. Horde, . V. Jones, . V. Linley, V. Meads, ; V. Neville, V. Pugh, . V. Rochford, V. Salmon, V. Taylor, 204, 221 Ferrers . 7S0 , 42ii , 584 , 658 . 163 46, 47 , 824 939, 934 54, 55 301, 807, 312, 313, 314 . 468 . 625 . 46 925, 926, 927, 939, 933, 934 V. Leithead, . . 266, 985 V. Williamson, . . . 171 Tatham v. Vernon, . 20, 329, 279 Taylor's Settlement, In re, 849, 864, 865, 886 Taylor v. Alston, . . .208 V. Austen, . . . 460 V. Wheeler, Taylour v. Rochford, . Teague's Settlement, In re, Tebbitt v. Tebbilt, Teed v. Cai-ruthers, Temple v. Baltinglass, Tennant v. Trenchard, 153, Tenneat v. Tenneut, . Thacker v. Key, . Thackwell v. Gardiner, Thayer v. Lister, . Thellusson v. Woodford, . 783 . 816 . 184 84, 86 , 845 . 169 . 284 . 363 490, 495 793, 794 418, 420 126, 560 . 156 224, 363, 889, 904 . 239 345 Thomas v. Bennet, V. Williams, . Thomlinson v. Smith, . Thompson's Trusts, In re, Thompson, Ex parte, . V. Fisher, . V. HefFernan, V. Hodgson, V. Leake, . . .803 V. Nelson, . . 860 V. Simpson, . . 43 V. Towne, . . 230 V. Watts, . . .366 V. Webster, . . 284 V. Whitmore, 40, 43, 288 Thomson v. Simpson, . . . 385 Thorn v. The Commissioners of Public Works 794 Thornbury v. Bevill, . . . 811 Thornton v. Dixon, 193, 197, 199, 201 V. Hawley, V. Thornton, Thorold v. Thorold, . Thorpe, Ex paite, T. Holdsworth, v. Owen, Thurlow V. East India Co., Thwaites, Ex parte, . Thynne (Lady) v. Glengall of, ... . Tibbits V. Phillips, v. Tibbits, Tidd V. Lister, . Tierney v. Wood, Tipping v. Piggot, 560 529 43 311 242 178 593 400 489 257 356 . 538 . 416 . 84 . 839 . 446 . 33 938, 983, 934 . 985 163, 32, 337, 342", 351, 838, 849 345 . 917 ■. 694 . 634 . 263 . 157 163, 176 (Earl) 780 190 373 475 363 724 342, 457, 364, TABLE OP CASES. XXXIX 539 635, 626, 637 . 470 . 330 18, 34 . 765 . 237 . 351 . 373 . 41 . 176 . 765 774, 779 . 311 Tipping V. Tipping, Titley v. Davies, . Todd, In re. Toft V. Stephenson, Tollemache v. Coventry, V. Tollemuche, Toilet V. Toilet, . Tomkyns v. Blane, V. Lad broke, Tomlinson v. Leigh, . Tommey v. White, Tooker v Annesley, . Toole V. Medlicott, Topham v. Constantine, V. Portland (Duke of,) 383, 387, 390, 3iJ3, 400 Torre v. Torre 41 Tottenham's Estate, In re, . . 47 Tottenliiun v. Emmet, . 594, 601 Touche V. Metropolitan Railway Warehousing Co., . . .383 Toulmin v. Steere, . . .628 Tourville v. Naish, . . .294 Tower V. Rous (Lord), 646,648,6.50 Town, Ex parte, . . Townend v. Toker, Towuley v. Bedwell, . Townsend v. Devaynes, V. Lowfield, V. Westmacott, Townshend v. Mostyn, Tracy v. Tracy, . Trafford v. Boehm, V. Trafford, . Tregonwell v. Sydenham, Trench v. Harrison, Trevelyan v. Charter Trevor v. Trnvor, Trimmer v. Bayne, Triquet v. Thornton, TroUope v. Rontledge, Troughton v. Troughton, . Trouibeck v. Boughey, Trower v. Knightley, . Tubb's Estate, Rt-, Tucker v. Burrow, V. Kayess, Tuckley v. Thompson, Tudor v. Anson, . Tuer v. Turner, . Tuffnell, Ex parte, re Watts, Tugman v. Hopkins, . TuUett V. Armstrong, . Tullit V. Tullit, . Turner v. Letts, . V. Marriott, V. Richmond, V. Sargent, V. Trelawney, V. Wright, Turner's (Sir Edward) case, . 452 Tweddell v. Tweddell 603, 659, 660 Tweedale' Settlement, Re, . . 470 Tweedale v. Tweedale, . 625, 626 164 . 284 . 853 . 193 . 576 . 384 657, 659 731, 746 867, 871 . 34 893, 897 . 215 , . 1.55, 165, 174 6, 12, 31, 31, 335 . 393, 296, 321 . 867 . 389 . 629 493, 518 830, 866 . 467 . 217 . 898 . 694 330, 382 , 866 . 685 . 511 531 860 . 685, 825 . 326 . 617 28, 31, 33, 37 . 163 . 746 493, Twistleton v. Griffith, 549, 550, 563, 570, 576, 589, 594, 600, 609 Tylee v. Webb, . . . .676 Tyler, Re, 868 V. Lake, . . . .519 v. Yates, . . 597, 602, 609 Tynte v. Hodge, . . . .606 Tyrconnel (Lord) v. Ancaster (Duke of), . • • 381,384 Tyrell v. Hope, .... 515 Tyrrell V. Bank of London, . 159 Tyssen v. Benyon, . . . 373 ITdal V. TJdal, 703, 708, 727, 729, 743 Underhill v. Horwood, . . 107 Underwood, In re, . . . 863 Unett V. Wilkes 356 Uniacke v. Giles 272 Unity Joint Stock Mutual Bank- ing Association v. King, 676, 685 Unsworth, Re, ... . 594 Usborn v. Usborn, . . . 746 Usticke V. Peters, . . . 346 Uvedale v. Uvedale, . . 708, 763 Van V. Barnett, Vance v. Vance, 846, 865, 869, 893 . 219 Vandeleur v. Vandeleur, Vandunburg v. Palmer, Vanderzee v. Aclom, . V. Willis, . Vane v. Barnard (Lord), . 664 258, 263 401, 404 . 639 10, 707, 748 Dunganuon (Lord), 351, 375, 395 V. Fletcher, . . .243 (Earl of) V. Rigden, . . 84 Vansittart v. Vansittart, . . 812 Vaughan v. Buck, 454, 455, 456, 457, 458, 464, 475, 501 v. Burslem, . . 36, 37, 34 v. Vanderstegen, . 456, 495 Vaughton v. Noble, Veal V. Veal, Vernon v. Vernon, Vickers v. Cowell, V. Vickers, Villareal v. Galway (Lord), Villers v. Beaumont, . Vincent v. Spicer, Vint V. Padget, Voyle v. Hughes, 470, 151 980 . 234 . 185 . 813 342, 359 . 388 . 743 635, 626, 637 . 276 Wade V. Coope, .... 114 V. Paget, . . 229, 235, 389 Wadham v. Rigg, . • .215 Wagstaffe V. Smith, . 489,515,527 Wainwright v. Bendlowes, . 633, 634 v. Hardisty, . . 489 Wake V. Wake, . . 359, 371, 373 Waldo V. Waldo, . . .705 Waldron v. Slopcr, . . .689 Walford v. Gray, . . .783 Walker, Ex parte, . . .843 (Anne), In re, . 471, 474 xl TABLE OF CASES, PAGE PAOB Walker v. Armstrong, . 41 Watkins v. Watkins, . . 475 V. Denne, 838, 839, 845, Watkyns v. Watkyns, , 437 846, 867 Watson's (Miss) case, . , 528 V. Drury, . 467, 468 Watson V. Brickwood, . 646, 649 V. Eastern Counties Rail- V. Hayes, . 887 way Co., . . 840 T. Knight, , 259 v. Flamstead, . 68 V. Marshall, . 467, 468, 469 V. Hardwick, . . 646 v. Parker, . 281 V. Jackson, 638, 635, 644 V. Rose, . . 333, 329 T. Laxteu, . 654 V. Toone, 150, 162, 173 V. Preswick, . 293, 301, 336 Watt V. Creke, . , , 395 V. Smallwood, 75, 80 V. Grove, . , , 155 V. Walker, . 774, 783 V. Watt, ^ , 233 V. Ware, &c., Rail. Co., 310 ..Watts T. Bullas, . , 232 Wall V. Cnlshead, . 890, 891 V. Kancie, . 83 T. Thurborne, . 401 v. Porter, . • 620 V. Tomlinson, . 479 V. Symes, . , , 635 T. Wall, . 375 Waugh, In re, , 497 Wallace v. Auldjo, . 462 V. Waddell, . 497 V. Wallace, . . 603 Way's Settlement, Re, 370, 279, 383 Waller v. Dalt, . . 547, 598 Weale v. Ollive, . , 268 Walley v. Walley. . 45, 53, 53 Webb V. De Beauvoisiu, . 648, 6.55 Wallinger v. Wallinger, . 354 V. Jones, . , 653 Wallwya v. Shepheard ;Assign- V. Lugar, . . 51 ees of), . 685 V. Rorke, . , , 1,52 Walmsley v. Booth, . 561 T. Shaftesbury (Earl of), . 315 Walpole V. Conway, . . 341 Webster v. Cook, , 597 Walsh V. Sluddart, . 933, 934 V. Milford, , 342 T. Tievaunion, . 41 Wedderburn v. Wedderburn, 162 Walsham v. Stainton, . 156 Weeding v. Weeding, . , 854 Walter v. Hodge, . 935 Weir V. Chamlev, . 384 V. Maunde, . 859 Welbeck Park, Case of. . 701 Walters v. Northern Coal Mining Welby V. Rockcliffe, . , , 655 Company, . 693 V. Welby, . 343, 345, 851 Walwyn v. Coutts, . 356 Welchraan, Re, . . 466 Warbutton v. Wai button . 363 V. Coventry Union Ward V. Arch, . 852 Bank, , 689 V. Audland, 260, 273, 278, Weld V. Tew, 857 274, 283 Wellesley v. Morniugton (Earl V. Baagh, , . 343, 871 of), . . 386 396 V. Beck, . 804 V. Wellesley, 754, 755, V. Booth, . . 233, 243 756, 765 811 V. Turner, . 905, 934, 925, 936 Wellington v. Ma«kintosh, . 812 V. Ward, . . 81 Wells V. Price, . , , 471 V. Yeates, . . 4(i7 ■ V. Stradiing, ^ , 774 Warden v. .lones, . 781 Wentworth v. Lloyd, . , 174 Wardle v. Carter, . 605, 606 West V. Berney, . . 389 397 V. Claxton, . 515 V. Errissey, 6, 18, 33, 41, 43 339 V. Oakley, . 680 (Sackville) v. Holmes dale Ware v. Gardner, . 285 (Viscount), 31, 33, 37, 39 T. Grand Junction Water Westbury v. Clapp, , 383 Works Co., . 816 Weslmeath (Earl oO V. West- V. Horwood, . 106, 107 meath (Countess of), . 811 V. Polhill, . . 859, 860 Wethered v. Wethered, . 597 Waring v. Ward, . 653, 660 Wetherell, Ex parte, . . 676 683 Warner, Ex parte, re Cooke, . C76 V. Wetherell, 366 Warren v. Rudall, . 350 Wharton, In re, . 839, 858 865 Warwick v. Warwick, 41, 43 V. May, . 606 009 Waterfall v. Penislone, . 695 Whately v. Kemp, , , 33 Waters v. Bailey, . 46 Wheate v. Hall, . . , 37 V. Groom, 151, 1.52, 169 Wheatley v. Purr, , . 263 T. Thorn, . 16,5, 175 Wheeler v. Caryl, . 478 Watkins v. Cheek, . 70, 71, 78 V. D'Esterre, , , 774 V. Flanagan, . . 114 V. Smith, . 215 TABLE OF CASES. Xli PAGE PAOB Wheldale v. Partridge, 833 , 838, Williams v. Carter, . . 36, 37 846, 868 V. Day, 9 Wheldale v. Cookson, 163, 176 V. Evans, . 695 Whichote v. Lawrence, 150, 151, 174 V. Hughes, . 654 Whieldon v. Spode,, . 646, 654 V. M'Namara, 750 Wliistler v. Newman, . . 493, 494 V. Massy, 86 V. Welister, 843, 3' 15, 351, 354 V. Mayne, . 275 V. Whistler, . . 371 V. Medlicot, . 685 Whitbread, Ex parte, . 676, 67R V. Owen, no V. Brocljhurs 1 773, 774 v. Teale, 36 V. Jordan, 676, 684 V. Thomas, . 215 Wliitchurch v. Bevis, . 7' J3, 783, 784 V. Tompson, 4 Whitcomb v. Mincliin, 151, 155 V. Trye, 158 White V. Anderson, . 41 V. Williams, 317, 230, V. Briggs, . 33. 38 328, 757, 815 889 V. Cann, . . 748 Williamson v. Codrington, . 281 V. Carter, . . 28 V. Curtis, . 67 V. Cohen, . . 515 V. The Advocate Gen- V. St. Barbe, . 399 eral, . 850 V. Bimmons, . 696 Willis V. Willis, .... 218 V. Thornl)orough, 12, 42 Willoughby v. Bridcoak, 603 V. Wakefield, . 318, 826 V. Middleton, . 368 375 v. White, . 58, 646 V. Willoughby, 617 Whitfield (Incumbent of) I n re, 840 Wills V. Sayers, .... 518 V. Bewit, 704, 706 , 710, V. Stradling, . 774, 775, 776 727, 7i 4, 748, 761 Wilmot V. Pike, . . . 619, 624 V. Fausset, . 564, 571 Wilson V. Coles, .... 890 Whiting V. Buike, . 106 V. Purness Railway Co., Whitmore v. Turquand, . 259 808, 809 810 Whitley v. Whitley, . 346, 373 V. Keating, . . 329, 797 Whittaker v. Howe, . . 811 V. Leslie, .... 86 V. Whittaker, . 843 V. Major, . . . 886, 901 Whiltem v. Sawyer, . . 464 V. Moore, .... 86 Whittle V. Henning, . 375 V. Mount, 342 Whitwick V. Jermin, . . 834 V. Piggott, 234, 401, 403 404 Whitworth v. Gaugain, . 687 V. Sewell, 169 Wich V. Parker, . . 386 V. Townshend, 343, 345, 375 Wicks V. Hunt, . . 817 V. West Hartlepool Rail- Wigg V. Wigg, . 291, 294 way Co., . 780 Wight V. Leigh, . . 30 Wilson V. Wilson, . 41, 355, 813 Wilcocks V. Hannyngton, . 263 Wilton V. Hill 526 Wilcox V. Gore, . . 538 Winch V. James, .... 471 V. Marshall, ■ . . 819 Winchelsea (Earl of) v. Norcliffe, Wilcox V. Rhodes, . 654 859, 860 Wild's case, . 4, 6, 8, 33 Winchester (Bp. of ) V. Knight, 761 Wild V. Milne, . . 163 V. Mid. Hants Wilding V. Richards, . . 357 R. Co., . 310 Wilkes T. B^pdington, . . 624 Windham v. Richardson, . 624 V. Holmes, . 330 Wing V. Tottenham, &c.. Railway V. Wilkes, . 813 Co 810 Wilkie V. Holmes, . 285 Winslow V. Tighe, ol Wilkinson v. Charlesworth, 456, 458 Winter v. Anson (Lord), 311, V. Dent, 34 6, 349, 350 814, 316, 317, 326, 676 V. Hartley, . . 81 Y. Winter, . 260 V. Nelson, . . 40 Wintour v. Clifton, 341, 345, 848, 373 Wilks V. Davis, . . 818 Wise V. Charlton, 681 Willats V. Busby, . 383 Wiseman r. Beake, 551, 573, 591, 594 WiUcocUs V. Hannyngton T ■ . 489 Withers v. Dean and Chapter of Willis V. Greenhill . 114 Winchester, . 767 Willeter v. Dobie, . 511 V. Withers, . 211 Williams, Ex parte, . . 694 Withy V. Cottle 794 V. Bolton (Duke ofj. Witt V. Amis 930 5 02 744, 7H4 Witter V. Witter, . , . . 859 V. Callow, . 474, 476 Witts V. Dawkins, 326 xlii TABLE OF CASES. Wollaston v. King, . . .353 Wollcn V. Tanner, . . .351 Wolterbeek v. Barrow, . . 41 Wombwell v. Belasyse, . 751, 758 Wood's Estate, Re, . . . 64 "Wood V. Abiey, . . . 605, 609 V. Downes, . . .175 V. Gaynon, . . . 748 T. Griffith, . . .814 V. Harman, . . .75 V. Midgley, . . . 785 V. Rowcliffe, . . .823 Woodford v. Charnley, . . 267 Woodliead v. Turner, . . 654 Woodhouse v. Meredith, . . 155 V. Shepley, , . 561 M^oodman v. Morrell, . . . 223 Wnodmeeston v. Walker, . . 521 Woodroffe v. Allen, . . .595 V. Johnston, . . 263 Woods V. Huntingfurd, 658, 659, 660 V. Hyde 854 Woodward v. Woodward, . . 508 Woolmore v. Burrows, . 82, 37 Woolridge v. Woolridge, . . 352 Woolstencroft v. Woolstencroft, 666, 667 Wordsworth v. Dayrell, . . 494 Worrall v. Marlar, 426, 437, 428, 439, 430, 464 Wortham v. Pemberton, . . 453 Worthington, Re, ... 868 v. Morgan, . . 326 Worthington v. Wigintou, . 372, 873 Wortley v. Birkhead, . 615, 617, 618 Wray V. Steele, . . . .211 Wray's Trusts, In re, . . .478 Wren v. Kirton, . Wright V. Bell, . V. Chard, y. Hunter, V. King, ■ V. Morley, 114, V. Pearson, V. Pitt, . V. Kose, . V. Rutler, V. Stanfield, V. Wright Wrightson v. Macaulay Wrigley v. Swainson, V. Sykes, Wrout V. Dawes, . Wyld's case, Wylde V. Radford, Wylliev. Pollen, . Wynne T. Price, . Wythe T. Henniker, Wythes v. Lee, . . 151 792, 794 497, 503 . 107 . 468 450, 457, 458, 476 . 19 . 763 . 863 . 426, 469 . 687 523, 534, 890 . 83(5 . 420 94, 96 . 311, 318 . 4, 6, 8, 23 . 684 . 630 . 798 296, 321, 657 333, 324. 335 Yallnp, Ex parte, . . .312 Yem V. Edwards, ... 49 Yonge V. Furse, .... 659 V. Reynell, . . 109, 110 York Buildings Company v. Mac- kenzie, . 155, 173, 178, 174 V. Eaton, . . . .184 Young's Settlement, In re, . . 527 Young V. Macintosh, ... 28 V. Young, . 630, 646, 653 Zoaoh V, Lloyd, 860 INDEX CASES CITED IN THE AMERICAIT NOTES, THE N0MBEES REFER TO THE PAGING OF THE AMBKICAN EDITION. Abbott's Appeal, . Abbott V. Godfrey, V. Insurance Co., V. Reeves, Aberdeen R. R. Co, Acker v. Phoenix, Adams v. Adams, V. Flanagan, V. Heffernan, v. Mackey, V. Slillwell, V. Townsend, Adderly v. Dixon, Addison v. Bowie, Adlum V. Yard, 386, 289, 297 . 954 . 239, 255 . 1098 Blakie, 66, 240, 341, 243 Macqueen, 260 420, 1108 . 569 163, 165, 166, 163 496, 567 . 737 . 493 . 1063 . 1098 . 573 557, 570 160, Adsit V. Adsit, 5.5a, 559, 560, 565, 571 Mlaa Ins. Co. v. Wires, Affalo V. Fnudrineir, . Agnew V. Bell, . Aiken v. Peay, Aitkjns V. Young, Albany Ins. Co. v. Bay, Albea v. Griffin, . Albert v. Ware, Aldrich V. Cooper, 867, 917, 932, 934 V. Hapgood, . Aldrick v. Martin, Aldridge v. Dunn, Alexander v. Gliiselin, T. M'Murry, V. Vance, . V. Waller, . V. Warren, Allen V. Bennet, . V. Chambers, 1043, V. Cowan, . V. DeWitt Allen's Estate, 171 . 174 485, 499 . 1108 . 476 . 181 917, 938 . 344 . 483 1057, 1062 . 1235 . 1163 1044, 1045, 1046, 1050, 1053, 1054, 1063 Allen V. Getz, .... 545 V. Pray 569 V. Rumpb, ... 47 V. Wood, . . . 134, 154 147, 152 174 173, 183, 184 183 1048, 1049 739, 740 . 1043 . 1060 PA8B Allison V. Wilson, 313, 1159, 1161, 1168, 1169 Alsworth V. Cordty, . . 343 Altei-'s Appeal, . . 604 Ambler v. Norton, . 559 Ameling v. Seekarap, . 1012, 1015 Ames V. Port Huron Co., . 239 V. Wooster, . 763 Anderson's Appeal, . 570 Anderson v. Chick, 1044, 1048 V. Harvey, . . 1014 V. Jones, . 334 V. Lemon, . . 54 V. Neff, . 858 V. Tompkins, . 398 Andrew v. Parnhara, . . 349 Andrews v. Brown, . 397, 298, 363 V. Holson, . 257, 421 V. Jones, . 670, 673, 676 V. Sparhawk, . 113 Anewalt's Appeal, . 1163 Angel V. Boner, . . 874 Annan v. Merritt, . 1043 Anstice v. Brown, . 1161 Anthony v. Leftwich, 1045, 1054, 1057 1062, 1063 V. Smith, . 499 Apgar V. Hiler, . 160, 163, 169, 186 Appleton V. Angler, . . 870 V. Bascom, . . 180, 181 V. Boyd, . 285 Ardglass v. Munbaugh, . 834 Armitage v. Pulver, . . 154, 165 Armstrong v. Campbell, . 350 V. Huston, . 351 V. Ross, 483, 486, 753, 756, 759 V. Stoval, . . 746 Arnold v. Gilbert, 1159, 1163, 1199, 1305 V. Kempstead, . 565, 566 V. Stevenson, . . 298 V. Wainwright, . 287 Arnott V. Woodburn, . . 171 Arrowsmith v. Van Harlingen, . 247 Artz V. Grove, . . 358 xliv TABLE OF AMERICAN CASES. PAQB FAGB Ash V. Busgy, . lOfil Bank v. Swazey, . . .339 V. Johnson, . . 1108 V. Tyrrell, .... 66 Ashby V. Palmer, .1164 V. "Walker, . . .149 Ashcraft v. Little, . 73 2, 738, 734 V. Wingar, . . .147 Ashhui'st's Appeal, 242, 258 Bank of Auburn T. Throppe, . 174 Ashton's Appeal, . 880 Blackstone v. Davis, . 765 Ashton V. Alan tic Bank, . Ill Commerce Appeal, 868, 875 V. M'Dougal, . . 631 England v. Tarleton, . 153 Ashurst V. Given, . 772 H:irrison v. Jermon, . 144 Ashwood V. Ryan, . 1237 Kentucky v. Vance, . 855 Athei'ton v. Corliss, . 569 Mobile V. Robertson, . 154 Athey v. Knotts, 676, 757 Montgomery v. Walker, Atkinn v. Chilson, . 1031 867, 868 Atkins V. Rowe, . . 311 Montgomery County's V. Yonns, 1048, 1049 Appeal, . . .868 Atkinson v. Hatch, . 1339 Muskingum v. Carpenter, 954 V. Jackson, . . 1047 Orleans'v. Torrey, 243, 263 V. Stewart, . . 184 Pennsylvania v. Potius, 152 Attaquin v. Fish, 1020, 1023, 1033 U. S. V. Winston, . . 151 Atwood V. Vincent, . IS 6, 143, 433 Utica V. Finch, . 858, 859 Austin V. Boyd, . . 1K6 TJtica V. Messereau, . 1022 V. Gillespie, 1096, 1108 Virginia v. Boisseau, 174, 176 V. Wilson, . Ill Westminster v. White, . 358 Averill v. Brown, . 484 Banks v. Judah, .... 250 V. Guthrie, . 853 V. May 421 V. Loucks, . 288 Bann v. Markham, . . . 1245 Banskett v. Holsenback . . 343 Babcock v. Bridge, . 873 Banta v. Garmo, . . .151 V. Case, . 831 Barante v. Gott, .... 1161 V. Hubbard, . . 180 Bard's Estate, . . . .570 Babur v. Babur, . . 1095 Baricknianv. Kuydendall, . . 1063 Bachelder v. Fiske, . 180 Barker v. Barker, . . . 1244 V Sargent, . . 763 Barker v. Cobb 770 Baokler v. Farrow, . 1024 V. Marine Ins. Co., . 250 Bacon v. Chiles, . . 258 V. May, .... 1201 Biiggaly V. Guthrie, . 856, 857 V. Wood, . . .676 Baggett V. Muex, . 770 Barnes v. Teague, . 1043, 1061 Bagott V. Muller, . 168 Baruet v. Dougherty, 261, 363, 336, Bailey v. Brownfield, . 142, 147 351, 359, 360 V. Green leaf, . 481 Barr v. Hatch, . . . .380 V. Myrick, 871, 875 Barrel v. Han rick, . . .353 V. Robinson, . 247, 300 Barringer v. Stiver, . . . 758 Baker v. Bradley, . 748 Barron v. Barron, 334, 343, 670, 675 V. Hollobough, . 1062 Barry v. Ranson, . 160, 186, 188 V. Leathers, . 344, 348 Bart's Appeal, . . . ' . 757 V. Martin, . 181 Bartlett v. Bartlett, . . .764 V. Vining, 334, 3^ 55, 339, 340 V. Long, . . .131 V. Whiting, 70, 78, 3' t9, 250, 263 V. Pickersgill, 261, 360, 364 V. Williams, . 231 Barton v. Briscoe, . . . 767 Bakewell v. Ogden, . 380 Baskins v. Giles, . . .735 Balbeck v. Donaldson, . 850 Basset v. Nosworthy, 856, 857, 877 Baldwin v. Allison, . 258 Bassett v. Brown, . . .835 V. f!ampfield. . 343 Batcheldor v. Fiske, . . .184 Ball V. Fleming, . . 865 Bateman v. Porter, . . . 1097 Ballard v. Taylor, . 732 Bates V. Kempton, . 1343, 1349 Ballin v. Dillaye, 753, 764 Batson v. King, . . . 160, 163 Back V. Adger, , . 140 Baugh V. Price, . . . .834 V. Armstrong, . . 147 V. Wentz, . . .363 V. Balcom, . 1330 Baugher v. Crane, . . . 1018 V. Campbell, . 143 Baum V. Gregsby, . , . 485 V. French, . 859, 875 Bax V. Whitbread, . . .000 V. Foster, . . 870 Baxter v. Bowyer, . , . 569 V. Garlinghouse, . 756 V. Manning, . . . 861 V. Sprague, . 286 V. Moore, . , 136 TABLE OF AMEKICAN CASES. xlv Bavley v. Greenleaf, 482, 483, 497, 498, 499 436 1106 249 1169 1168, 1169 Baylis v. The Commonwealth, Bays V. Everhardt, Beal V. Harmon, V. Sheahey, V. Stockly, . Beam v. Blaiiton, Bear v. Bear, Bear's Estate, Bear v. Whisler, . Beard v. Beard, . Beasley v. Cooke, Bealty v. Byers, V. Clark, . Beaufort v. Collier, V. Collins, Beck V. Graybill, V. Kautarowicz Bedell v. Carroll, Beebee v. Doraud, Beeson v. Beeson, Beetem v. Burkholder Belknap v. Belknap, Bell V. Bell, \. Fleming, . V. Hellenback, V. Homings, T. Jasper, V. Ivelhtr, V. Webb, . Bclshaw V. Busli, Belt V Ferguson, Benbow v. Townsend, Benedict v. Montgomery, Bennett v. Dillingham, Bentley v. Columbia Ins. Co., Berdan v. Sedgwick, Beresford, Ex parte, Bergen v. Bennett, Bernard v. Flinn, Best V. Stow, Betsonier v. Baldwin, Betts V. Wood, . Bezzell v. White, Bibb V. Martin, . V. Smith, Biddulph V. Biddulph, Bdlluglon V. Welsh, Binn v. Weppert, Biuner v. Wheaton, Birchett v. Boiling, Bird V. Brown, . V. Morrison, Bishop V. Day, . Bishop ot London v. Webb, Bishop V. Selleck, Black V. Black, . V. Galway, Blackburn v. Gregson, V. Stables, Blackstone Bank v. D Blackwelder v. Loveless, Blackwood V. Van Yliet, iivis, 1169, 502 . 755 760, 761 . 4S2 . 443 . 1018 1170 . 381 . 732 . 769 336, 339 . 66 1232, 1239 . 1060 239, 247, 257, 259 831, 832 . 1016 672, 674, 676 866, 873 . 345 . 859 154, 155 741, 742, 743, 749 253, 258 . 151 . 618 . 346 434, 733 672, 676 252 878 677 258 1056 1058 149 65 184 174 421 1164 1045 764 764 1107 299 289, 292 135 1026 46 1054 764 488 37 765 1093 1018 Blair v. Bass, BlaUeslee v. Blakeslee, Blanchard v. Sheldon, Blank v. German, Blauveltv. Ackerman, Bleeker v. Bingham, Blight V. Banks, . Blodgett V. Aid rich, V. Hildreth, Bloom V. Noggle, Bloomer v. Bloomer, Bloomer v. Henderson Blount V. Burrow, Blunden v. Desart, Boal V. Morgner, Boardman v. Paige, Bobo V. Grinike, Bodine v. Edwards, Bogert V. Perry, . V. Hertell, Bogertton v. Champlin Bohanon v. Combs, Bolles V. Chauucey, Bonaparte v. The C. Bond V. Kent, V. Ziegler, Bondreau v. Bondreau, P'oaham v. Galloway, Bonnett v. Sadler, Bonuey v. Seely, Boon V. Murphy, Boos V. Ewing, . Borneman v. Sidlinger, Borst V. Corey, . Bosley v. Taylor, 169, . 263, 335 1049, 1050 423, 433, 1231, 1240 . 923 335, 341 . 47 497, 1162 . 359 341, 354, 355 953, 954 . 1233 . 877 . 1248 867 732 183 1101 348 339 1203 485 157 875 1013 489 111 . 1241 . 135 . 1020 180, 182 484, 485 . 486 1243, 1245, 1247 . 496 153, 154 Boswell V. Goodwin, 866, 867, 868, 875 & A. R R., lib, Botslord y. BmT, 334, 335, 3::i7, 339, 340, 1059 Bottorfv. Connor, . . .492 Bouchaud v. Dias, . . .169 Bouck V. Wilber, . . .1105 Boughton V. Boughton, . . 550 Bourne v. Possbrok, . 1235, 1251 Bowen v. City of Toronto, . 243 V. Evans, . . . 259 V. Schel, . . .754 V. Sibree, . . .733 Bowers v. Hurd, . . . 12-14 V. Oyster, . . 953, 954 Bowie V. Stonestreet, . . . 1062 Bowling V. Bowling, . . . 676 V. Winslow, . . 676, 677 Bowlings V. D , ... 71 Boyce v. McCullough, . . 1059 Boyd V. Cook, .... 353 v. Bunlap 836 V. Hawkins, . 65, 239, 260 V. Hoyt, . . . .1022 V. M'Lean, . 334, 335, 338 Boykin v. Cikles, . . . 735 Boynton v. Housler, . . . 363 V. Hubbard, . . 828, 829 xlvi TABLE OF AMERICAN CASES. Boze V. Davis. . 1043, 1047, 1048 Bozelius V. Dyer, • . • 421 Brackenridge v. Holland, 239, 355, 260 183 Bradford v. Gieenway, V. Harper, V. Kent, Bradishv. Gibbs, Bradley v. Bosler, V. Burwell, V. Mosby, Brady v. Calhoun, V. Waldron, Bragg V. Panck, . Braraan v. Stiles, Bramble v. Billups, Brandenburg v. Flynn, Brandon v. Eobinson, 765, 766, 770, Brandt v. Mickle, Brannon v. Oliver, Brant v. Gclston, Brant's Will, Brantley v. Ker, . V. West, Brashear v. Macey, Brawdy v. Brawdy, Brawley v. Catron, Braxton v. Freeman, 747 485, 497 570, 571 . 381 487 184 47 311 1031 338 772 47 156 771 733 347 38 570 65 343 1031 1050,. 1054, 1056 482, 484, 486, 490 .559 Bray v. Liimb, . . . . 569 V. Neill, . . . .569 Brazee v. Lancaster Bank, . . 854 Breckenridee v. Taylor, 135, 153, ^ 154, 247 Breckinbridge v. Ingram, Brevcer V. Wilson, Brevrster v. Power, Bridger v. Carhartt, Bridges v. Kilburn, V. Wood, Briggs V. Boyd, . V. Hill, . V. Planters' Bank, Bright V. Bright, . . 427, Briley v. Sugg, . Brinckerhoft' v. Lawrence, BrinkerhoflF v. Marvin, Briscoe v. Brenaugli, . Brittain v. Lloyd, Britton v. Johnson, Brcdie v. Barry, . Brolasky v. Gaily, Brook V. Berry, . Brooker v. Brooker, . Brooks V. Marbury, V. Wheelock, . Broome v. Curry, Brothers v. Biothers, . V. Cartwright, V. Porter, Brown v. Bamfoid, V. Brown, V. Caldwell, 658, 559, 563, 564 V. Dysinger, 363, 338, 361, 363 550, 553 . 1057- . 348 . 853 . 1020 . 734 . 163 . 493 493 44l", 1046 . 144 . 1345 859, 864 497, 483 . 181 . 347 551, 552 . iieo 360, 361 . 286 . 423 1043, 1058 . 1168 240 1161 339 770 1247 1159, 440, 136, 262, 361, Brown v. Finney, V. Gilliland, V. Gilman, V. Johnson, V. Lang, . V. Lynch, V. McDonald, V. Moore, V. Pendleton, V. Pitney, V. Ricketts, V. Simpson, V. Stewart, V. Vanlier, V. Wilson, Browne v. Ray, . Brownfleld v. Mackey, Browning v. Headley, Bruch V. Ihrie, Brumfield v. Palmer, Bruner's Appeal, . Brush V. Kinsley, Bryan v. Bryan, . V. Robert, . Bryne v. liomaine, Bubier v. Bubier, Buchan v. Sumner, 287, 288, 292, 393, 294, 399, 301, 303 Buck v. Pike, . . 334, 335, 337 V. Swazoy, . . . 1108 Buckland v. Pucknell, . 488, 491 Buckles V. Lafferty, . . 347, 360 Buckley v. Buckley, 393, 394, 295, 1103 10.-)7 1096 486 734 152 363 345 1347 759 541, 543, 559 . 545 . 482 . 1023 . 498 . 757 . 171 . 1168 671, 672 . 113 493, 497 . 755 492, 493 . 671 . 1101 . 1045 . 1043 V. Wells, Buckmaster v. Harrop, Budd V. Busti, Buddington v. Munson, Buell V. Buckingham, . Buffum V. Buffum, Buford V. McKee, Buist V. Somers, . Bull V. Church, . Bunker v. Locke, Bunu v. Wmthrop, Burch V. Brackenridge, 758 . 1050 . 482 . 601 . 260 . 236 437, 441, 443 . 545 558, 568, 569 . 1032 . 431, 438 741, 742, 749, 752 . 497 865, 866 . 763 136, V. Carter, . Burdett v. Clay, . Burdick v. Moon, Burk V. Christman, . . 136, 142 Burke v. Cole, . . . .760 V. Gray, . . . .485 Burlingame v. Robbins, . . 497 Burns v. Huntingdon Bank, . 156 v. Southerland, . 1047, 1057 V. Taylor, . . . 483, 487 Burnside v. Merrick, 382, 300, 301, 303 Buron v. Denman, . . . 399 Burr V. Sim, 1159, 1162, 1167, 1168, 1169, 1170, 1198, 1305 V. Smith 151 Burrill v. Bull 70 V. Shiel, 1161 TABLE OF AMERICAN CASES. xlvii Burrows v. McWhann, Burt V. Wilson, . Burton v. Bradley, V. Wooley, Buschiau v. Hugurt, Bush V. Schups, . Butcher v. Butcher, Butchert v. Dresser, Buthald V. Bulhald, Butler V. Birkey, V. Haskell, V. Hicks, . V. M. Ins. Co., Butts V. Ellis, Buxton V. Lister, 1096, Byrd v. Odem, Cadbury v. Duval, Cadwalader's Appeal, Caines v. Grant, . V. Marley, Caldwell v. Meyers, V. Roberts, V. Sigourney, V. "Walters, V. "Williams, Callis V. Ridout, . Calloway v. Gilmer, C'alver v. Calver, . Calvert v. Holland, Camden and Amboy Stewart, . Camden v. Vail, . Camp V. Bates, . Camp's Appeal, . Campbell V.Baldwin, V 1098, FASB 141, 153, 170 . 481 . 172 . 242 . 1233 174, 176 . 827 . 304 . 136 147, 154 261, 826 . 1103 844, 345 . 1250 1101, 1115 . 1045 Railr 113, 345, 254 256 . 285 . 1337 . 1095 . 185 . 359 755, 756 420, 429 . 253 . 247 . 239 . 65 1237, 1250, 484, 485, V. V. V. V. V. oad V. 1057 486 1032 1351 486 Fleming, . . .835 Ji.hnsou, 240, 253 260 M'Clain, . . 349 M'Lain, 249, 251,354, 259 JVlesier, . . . 135 Pennsylv'a Life Ins. Co., . V. Shrum, . Canal Company v. Comegys, Candou's.Appeal, Canfield v. Bostwick, . Canico v. Bank, . Caple V. M'Callum, Car V. Codding, . Carey v. Askew, . V. Callan, . Carl Cowper v. Baker, Carleton v. Lovejoy, . Carlisle v. Fleming, Carnes v. Hubbard, Carnidine v. Hollins, . Carpenter v. Dodge, . Y. Garigan, . v. Gruninger, V. Kelly, . v. King, V. Mitchell, 485, 339 923 1021 1247 918 486 . 334 . 339 . 551 . 335 . 1012 . 1233 1044, 1057 . 497 . 1238 431, 1244 . 1014 . 1011 . 173 . 186 . 763 Carpenter v. Mutual S. Ins, Carr v. Hobbs, . V. Ireland, . V. Porter, Carrington v. Gadden, Carroll v. Bowie, v. Johnston, V. Lee, Eenick, Bank of Georgia, Carter, . Harris, . Howard, V. Carter v. V. V. V. V. V. Jones, . Cartwright v. "West, Case V.' Simple, Casey v. Casey, . Caston v. Caston, Caswell V. "Ware, Cater v. Bveleigh, Oauffman v. Cauffmaa Cave v. Burns, . Cecil V. Butcher, Cessna v. Haines, Chadwick v. Felt, Chaffin V. Campbell, Chamberlain v. Chamberlain, V. M'Clurg, Chamberlaine v. Blue, V. Thompson, Co, 1097 . 481 , 1160 . 44 116, 118 . 138 856, 76-3, 150, 857 732 42 486 674 250 763 763 151 . 344 . 761 . 249 568, 571 . 1233 . 737 541, 544, 570 . 184 . 350 . 875 . 291 . 156 . 353 830, 834 . 1098 858, 862 Chambers v. Lecompe, 1044, 1050 V. Perry, . . .673 Champlinv. Haight, 111, 114, 118, 305 ~ . 286 . 440 . 1335 858, 874 351, 353 . 570 . 334 . 487 . 1350 . 3H5 . 569 V. Tillinghast, Champney v. Blackwood, V. Blau chard, V. Coope, . Chandler v. Moulton, . V. "Woodward, Chapline v. M'Alee, . Chapman v. Beardsley, V. "White, . V. "Whiiy, . Chappel V. Avery, Charitable Corporation, The, v. Sutton Charnley v. Hansbury, Chase v. Abbott, V. Lockerman, . . 917, 243 1057 875 , 938 V. M' Donald, . . .857 V. Palmer, . . 670, 677 V. Redding, 1343, 1249, 1251 V. Ridgely, . . .876 Cheeseborough v, Millard, . 140, 170 Chesapeake and Ohio Canal v. Young, . 1018, 1051 Cheshire v. Payne, . 631 Chester v. Greer, . 343 Chetwood v. Brittain, . . 1063 Chevalier v. Wilson, . . 1344 Chew's Appeal, . . 554 Chew V. Barnett, 428, 436 xlviii TABLE OF AMERICAN CASES. Cbew V. Nicldin, . . . 1162 Cliickering v. Lovejoy, . . 495 Cliilton V. Brandon, . . 482, 483 V. Chapman, . . . 173 Cliisltei- V. Meddis, . . . 1164 Choice V. Marshall, ... 40 Choipenuing's Appeal, . . 254 Christy v. Barnhart, 1048, 1049, 1061 Church of the Advent V. Farrow, 1057 Church V. Bull, . . . .568 V. Church, . . . 357 V. Marine Ins. Co., . 250 V. Porter, ... 73 V. Roland, . . .352 V. Sterling, . 261, 262, 337 Cino V. Vance, . . . 136, 174 City of Natchez v. Vandervelde, 1050 City of Philadelphia v. Davis, 543, 544, 551, 554, 555, 556 of Providence v. St. John's Lodge, Clafin V. Godfrey, Claggett V. Kilbourne, Clapp V. Rice, Clark's Appeal, . Clark V. Clark, . V. Flint, . v. Griffith, . V. Hcnshaw, V. Hunt, V. Maguire, V. M;ikeuua, V. Miller, . V. JMewville, Clarke v. Dickson, V. Royle, . V. Wyndham, Clason V. Morris, Clay V. Hart, Clayton v. Frazer, element v. Wheeler, Cleveland v. Covington, Clevenstine's Appeal, Cleviuger v. Reiniar, Clinefelter v. Ayers, Clinger v. Reimar, Clingnian v. Michetree, Cloninger v. Summit Cloud V. Martin, . Clover V. Rawliugs, Clyde .V. Simpson, Coates V. Gerlach, V. McKee, V. Rohiuson, V. Woodsworth, Coder v. Huling, Coderwt 11 v. Mullison, Coffee V. Ruffln, . Coffin V. Otis, Cogdell V. Widows, Cole V. Edgerly, . V. Potts, V. Scott, 1011, " 1099, 485 571 1106 870 297 163 1018 341 HOC . 559 . 917 486, 492, 498 . 732 735, 736 . 743 . 831 . 831 8, 490, 491 765, 767 . 141 1159, 1162 765, 1043 . 1021 . 180 733 73, 360, 830 917, 1162 . 252 . 353 262, 263 . 599 495 114, l:5, 119 . 442 . 760 . 741 . 339 287, 288 . 293 63, 260 . 1246 . 541 . 874 . 1049 . 4s9 72, PAUB . 752 . 861 742, 743, 749 . 1058 Cole V. Van Riper, Coleman v. Winch, V. Woolley, . Coles V. Bowne, . Collier v. Calvin, . V. Collier, . Collins V. Carman, V. Champ, V. Lavenberg, . V. Smith, . V. Tillou, . Colquhoun v. Atkinsons, Colson v Thompson, . Columb V. Read, Colyer v. Finch, ..... Combs V. Little, .... Commercial Bank V. Cunningham, V. Western Bank, Commonwealth v. Chesapeake and Del. Canal Co, V. Martm, 1158, 1166, 1197 T. Shelby, . 918, 938 V. Wickersham, 930 Conant v. Jackson, Conard v. Atlantic Ins, Connely v. Bourg, Conner v. Drake, V. Lewis, Connor v. Travio, Couovor V. Warren Cook V. Cook, V. Craft, V. Grant, V. Husted, . V. Hennerly, V. 'J rimble, . V. Vich, Cooke V. Husbands, 175 1160 570 1163 747 239 359 857 1057 387, 288, 289, 293 112 361 859 136 874 Co., Cookson V. Cookson, Coombs V. Jordan, Coon V. Brook, Coonrod v. Coonrod, Cooper V. Hamilton, V. Pena, . V. Piatt, . Cope V. Meeks, . Copeland v. Mercantile Ins, 866 . 141 . 1106 . 337 . 1238 482, 484, 485 . 361 . 496 . 1094 . 1234 . 733 . 483 . 1106 741, 742, 746, 747, 748 . 296 114, 857 . 740 . 118 1011, 1023 . 1093 . 164 . 752 Co. 250, 262, 835 Copis v. Middleton, 137, 139, 140, 141, 144 Coppidge V. Threadgill, 670, 675, 676 Corbiu V. Jackson, . . . 1050 V. Tracey, . . . 1097 Corn Exchange Insurance Co. v. Babcock, 756 Cornelius v. Post, . . . 1015 Cornell v. Prescott, . . 148, 934 Corning v. Lewis, . . . 757 Cort v. Fougeray, . . 486, 487 Coster v. The Bank of Georgia, . 497 TABLE OP AMERICAN CASES. xlix Cotton v. Wood, . Cottrell's Appeal, Couch V. Terry, . Coughlio V. Rj'an, . 344, 345 137, 141, 142, 153 185 762 Courthorpe v. Mapplesden, . . 1013 Coutant V. Schuyler, . 1345, 1247 Cowan V. Dunkan, . . .159 Cowles v; Brown, . . .600 V. Whitman, . 1096, 1100 Cowperthwaite v. Shuffleld, . 895 Cox V. Cox, 163, 247, 263, 1045, 1051, 1057, 1068 V. Fenwick, . . . 483, 485 V. M'Burney, . . .288 V. Sprigg, 430, 431, 436, 442, 445 Cozine v. Graham, Craig V. Angle, . V. Ankenney, V. Craig, V. Kittridge, V. Leslie, 1062 . 135 . 154 . 184, 545 1230, 1237, 1247 1157, 1160, 1161, 1168, 1198, 1301, 1205 159, V. Tappin, . Cram v. Mitchell, Crane v. Crane, . V. Deming, V. Gough, . Craven v. Craven, Crawford v. Alexander, Crawford's Appeal, Crawley v. Riggs, V. Timber] ake, Craythornev. Swinburne, Creacraft v. Dille, Cressman's Appeal Creutcher v. Lord, Cribbins v. Markwood, Crispin v. Taylor, Croft V. Moore, Croker v. Higgins, Crompton v. Vessee, Crooker v. Crookei', Croom V. Hening, Croskey v. Chapman, Crow V. Murphy, Cruger v. Cruger, Crump's Appeal, . Crump V. M'Murtry, Cruse V. Barley, . Cryder's Appeal, . Cullum V. Emanuel, Cumberland v. Codrington, 922,924, 925 Cumberland Coal Co. v. Sherman, 66, 241, 242, 250, 355 Cumming's Appeal, . . . 754 Cumming v. Williamson, . . 740 Cunningham v. Freeborn, . . 424 V. Shannon, . . 568 Curd V. The Lancaster Bank, . 334 Currie v. Tibb, . . . .285 Curtis V. Engel, . . . 740, 756 V. Tyler, . . . 173, 174 Cushney v. Henry, ... 47 Cuthbert v. Wolfe, . . 732, 734 YOL. I. — D 863, 878 239, 349 . 569 . 866 . 1044 . 569 . 1013 . 1236 . 495 . 483 161, 167 . 568 . 445 . 363 . 839 347, 260 140, 152, 170, 184 . 1050 . 420 . 286, 287 . 1160 . 497 173, 185 . 739 431, 440 . 153 1198, 1200 113, 928 . 136 Cutlar v. Cutlar, . Cuttle V. Tuttle, . Cutting V. Oilman, Cuyler v. Bradt, . V. Ensworth, rAss . 47 . 340 1231, 1237 . 285 . 169 of Dale V. Hamilton, V. Lincoln, . Dallas V. Heard, . Dalzell V. Crawford, Dammer v. Pitcher, Daniel v. Ballard, V. Joyner, V. Leetch, V. M'Rae, . Dankel v. Hunter, Dann v. The City Brewery Co., . Danvers v. Smith, Darlington v. M'Coole, Darly v. Darly, . Darragh v. Osborne, Daubenspeck v. Greer, Daughaday v. Paine, Davidson v. Carroll, V. Little, V. M'Candlish, Davies v. Stainbank, Davis V. Boyd, . V. Carn, V. Christian, V. Howard, V. Moore, . V. Newton, V. Reed, Davis V. Simpson, Davison v. Davison, V. Gochring, D' Avras v. Keyser, Davoue v. Panning, 68, 289 . 288 . 1231 742, 747 112, 118, 1097 . 547 . 154 156, 176 . 924 154, 155 . 765 London . 867 . 288 . 421 . 297 167, 188 . 1013 . 486 . 143 826, 828, 829 760, 701 . 149 . 1233 . 733 110, 113, 118 , 1105 1043 670, 673, 674, 675 . 1017 . 247 . 569 . 14 . 1163 246, 255, 257, 260 420, 428 . 446 de 930 349 181 Dawson v. Dawson, V. Rearton, Day V. Day, V. Roth, V. Swann, . De Caters v. Le Ray mont, De la Croix v. Villiere, De Lewellain v. Evans, De Rivafenoli v. Corsetti, De Veney v- Gallagher, Dean v. Dean, . 1062, V. Shelly, . Dechard v. Edwards, Deibler v. Barwick, Delameter's Estate, Delamotte y. Taylor, Delassus v. Paston, Delay v. Vinal, .... Delmonico v. Guillaume, 387, 297, 303, 305 Demany v. Metcalf, , . . 861 1235, Chau- 256 1017 1239 1106 1013 1241 764 136 483 . 260, 421, 445 1231, 1232, 1287 . 481 . 569 TABLE OF AMERICAN CASES. Demaree v. Dreskill, Deinpsey v. Bush, D.en V. Barnes, V. Hammel, . V. M'Kiiiglit, Denison v. Gnehnnsr, . 345 141, 175 . 47 . 247 . 247 45,47,344, 381, 423, 427, 430, 433, 439, 443 Dennis v. Gillespie, Xl-i V. Williams, . 733 Denny v. Steakley, 485 Depuy V. Levenworth, 297 Despain v. Gaiter, 1042, 1044, 1045 Devayne v. Devayne, . 300 Devenisli v. Baints, 352 Dewall V. Covenlioven, 674 Dewey v. Dewey, 286 V. Long, . 345 Dexheimer v. Grantier, 1330 Dias V. Boucliand, 140 Dibble v. Dibble, . 733 Dick V. Maury, . 175 V. Pitch, 7(i5 Dickermari v. Abrahams, 740 Dickinson v. Codwise, .* 71 , 342 V. Jones, 1017 Dilfe v. Green, 1106 Dillon V. Coppin, 425 Dills V. Stevenson, ' 1233, 1241 Diiismore Oil Go. v. Dinsmore, 66, 67 Diver V. McLaughlin, . . . 862 Dixon V. Dixon, .... 494 V. Olmius, . . . 352 Dobson V. Eacey, 239, 240, 250, 255, 258 Dock V. Hart, . 1050, 1058, 1061 Dodd V. Niven, .... 184 Dodge V. Evans, . . . 482, 485 V. Pond, .... 1162 Dodier v. Lewis, .... 136 Dodson V. Simpson, . . .Ill Doe V. Bank of Cleveland, . . 954 V. Harvey, . . . .247 V. Henry, .... 257 Dold V. Geiger, . 671, 673, 676, 678 Dominick v. Michael, Doolittle V. D wight. Dorr V. Peters, Donance v. Scott, Dorrow v. Kelly, Dorsey v. Clarke, Dotey v. Mitchell, Dott v. t'unnington. Doty V. Wilson, . Doguan v. Blocher, 1049, Dougherty v. Bull, Douglass V. Brien, V. Fagg, V. Wiggins, Dow V. Hicks, V. Ker, Downer v. Smith, Downing v. Palmateer, Downnian v> Rust, Dowaon v. Beil, . 1162 . 181 . 924 . 745, 755 . 858 334, 837, 351 . 746 . 44 . 1241 1045, 1048, 1052, 1053, 1055 . 1)58 . 344 135, 151, 156 1018, 1030 . 1249 . 954 . 831 857, 1021, 1023 . 115 . 506 Doyle T. Sleeper, . Dreery v. Cross, . Drenkle's Estate, Dresser v. Dresser, Drown v. Smith, . Drury v. Smith, . Dubbs V. Finley, . Dubs V. Dulis, Dudley v. Bosworth, V. Mallery, Duffield V. Elwes, V. Wallace, Duffy V. Calvert, . Dugan V. Colville, V. Gittings, Duke of Leeds v. Amherst, Norfolk T. Brown, Dumond v. Magee, Duncan's Appeal, Duncan v. Duncan, 568 V. Farrer, V. Jaudon, V. KeitFer, V. McOuUough; Dundas' Appeal, . Dundas v. Dundas, Dunham v. Dey, . V. Wright, Dunlap V. Burnett, V. Dunlap, Dunn V. Cliambers, V. Moore, . V. Seymour, V. Wade, . Dunshee v. Goldbecher, Dupuy v. Southgates, Durett v. Briggs, . Durfee v. Pasitt, . Durham v. Rhodes, Durr V. Bowyer, . Duval v. Bibb, . v. Getting, v. Myers, . 345 65, 241 . 1161 1232, 1245 . 1017 . 1248 . 923 . 768 . 344 . 1103 . 1250 . 339 113, 115 1043, 1045 . 1045 . 258 . 354 . 677 618, 619 , 570, 1343, 1244 . 285 . 109, 119 . 181 830, 833, 834 . 245, 356 . 553 . 859, 875 . 752 . 497, 498 . 929 . 829 . 1043 . 874 . 155 . 1163 . 138 . 485, 486 . 349 . 570 671, 672, 675 . 497 . 429, 1060 1045, 1053, 1093 Duvall V. Farmers' Bank of Mary- land. . 673, 676, 677 T. Waters; 1030, 1021, 1022, 1023 D wight v. Pomeroy, . 1043, 1058 Dwiling v. Harmer, . . . 335 Dyatt v. N. A. Coal Co., . . 739 Dyer v. Clark, . . 113, 287, 310 V. Cornell, .... 1167 V. Dyer, 292, 298, 300, 801, 303, 344 T. Martin, . . . .483 Eames v. Wheeler, Earl of Oxford's case, Eastman v. Foster, Eastman v. Plumer, Eaton V. Tallmadge, V. Tillinghast, V. Whitaker, Ebbert's Appeal, ["he ' • 1023 164, 175 146 245 47 1042 ,1045 1054, 1063 . 289 290 TABLE OF AMERICAN CASES. li Eberts v. Eberts, . . .261 Eckert V. Eckert, 1046, 1048, 1057, 1061 V. Mace, . Eddy V. Traver, . Edgerly v. Emerson, . Edmondson v. Dyson, V. "Wolsh, Edwards v. Bohannon, y. Edwards, Egerlon v. Brownlow, V. Egerton, Eland v. Eland, Elijah V. Taylor, Elkinton v. Newman, V. Nichols, Ellicott V. Welsh, Elliott V. Armstrong, V. Callan, V. Carter, V. Poole, . V. Warner, Ellis V. Commander, V. Ellis, V. Kenyon, T. Nimmo, . Elrod V. Lancaster Elwendorph v. Tappen, Elwin V. Elwin, . Elwood V. Deilendorph, Ely V. Beaumont, Elysville Man. Co. v, Co. , Emerson v. Atwater, Emerson v. Cutler, Enders v. Brunc, English V. Russell, Enos V. Hunter, Ensley v. Balentine, Eppes V. Randolph, Erli's Appeal, Eskridge v. M'Clure, Esmay v. Grotser, Espy V. Anderson, Eubank v. Poston, Evans' Appeal, 1040 . 143 152, 154 . 40 . 262 . 493 . 344 . 46 1333, 1241 . 305 . 758 145, 150, 151 181 496 334, 385, 343 . 879 918, «28 . 252 . 676 . 1101 1043, 1049 . 764 . 425 . 254 . 1><1 . 1201 136, 171, 180, 181 1162 Ohio Ins. . 486 . 244 . 1201 135, 140 . 481 . 335 334, 337 . 138 . 152 484, 493, 497 1063 1059 484, 493, 498 1169, 1170, 1205 Evans V. Battle, 420, 1047, 1048, 1062 Evans' Estate, V. Gillespie, V. Goodlet, V. Knorr, . V. Lipscomb, V. Myler, V. Webb, V. Wells, V. Wilcox, Evelyn v. Evelyn, Eveiison v. Tappen, Ewiug V. Ewing, v. Smith, Eylcr V. Crabbs, Eyre v. Countess of Shaftesbury, Eyrick v. Hetrick, Ezell V. Parker, 340 . 732 . 485 732, 733 1233, 1241 . 756 923, 069 43 859 925 253 . 1244 735, 736 . 492 673 772 752 Fagan v. Jacocks, Fairly v. Kline, '. Pall River Whaling Co 1042, Fallon V. The E. R. Co., Falls V. Reid, V. Tibbetts, Faringger v. Ramsay, Farley v. Blond, . v. Farley, Farnham v. Biooks, Farr v. Farr, Farrar v. Patton, Passet V. Smith, . Fatlieree v. Fletcher, Faust V. Haas, Favrington v. Barr, Fuwcett V. Fawcett, V. Wliitehouse, Fawell V. Heelis, Fears v. Brooks, Featherstonaugh v. Fenwick, Fellowsbeev. Kilbreth, . . 259 Felton V. Reid,. . . . . 747 Ferguson v. Paschall, 1095, 1096, 1100 V. Stuart's Ex'rs, . 1160 V. Sutphen, . . .339 Petterv. Wilson, . . . .757 Field V. Arrowsmith, . . . 257 v. Eaton, . . . 541, 545 V. Mayor of New York, . 1108 V. PAQB . 171 1159, 1161 Borden, 386, 288 1107 1116 10 ; 8 334, 335, 336 342 1100 361 261 1044 859 344 337 355 339 66 489 733, 735, 743 78 V. Pelot, V. Scliieffelin, Pindlay v. Riddle, Fink V. Cox, V. Mahaffy, . Finley's Appeal, . Finney v. Finney, 156, 159, 171 . 110 . 45 . 446 145, 146, 176 . 757 . 171 Pinucane v. Kearney, 1045, 1054, 10)6 First Nat. Bank v. Balcom, . 1241 Fischli V. Dumaresly, . . . S37 Fish V. Howland, V. Lightner, . Fishe V. Johnson, Fisher v. Johnson, V. Taylor, Fisk V. Sarber, Fitch V. Eyre, V. Filch, Pitts V. Cook, Fitzgerald v. Vistal, . Flagg V. Mann, . Plamang's case, . Flanagan v Westcott, Fleming v. Beaver, V. Faron, V. M'Hale, . Fletcher v. Ashburner, V. Jackson, . V. Peck, Flint V. Day, V. Petter, . Fogerties v. The Bank, Pond v, Jonts, . 484, 1096, 486, 489 . 1093 1097, 1099 493, 494 770, 771, 773 63, 254 . 733 . 838 . 548 . 838 69, 361 . 1013 . 871 . 147 . 246 . 339 . 1157 180, 182 . 354 161, 166 . 1247 . 1249 483, 485. 486 In TABLE OF AMERICAN CASES. Foot V. Colvin, . PAGE 383 Gardner v. Gardner, 113, PAO» 113, 116, Foote V. Foote, . , 358 740, 1247 Forbes v. Halsey, 239, 255 V. Meriett, . 433 Ford V. Gaithur, . , 929 V. Ogden, 63, 73, 263 V. Lewis, 348 V. Parker, . 1248 V. Kussell, . 380, 381 V. The Trustees of New- Forde v. Herron, . , 302 burg, . 1016 Foreman v. Foreman, . . 1169 Garner v. Gardner, . 445 Forrest v. Robinson, . , 747 V. Garner, . 44 Forsyth v. Clark, 334, 338 V. Shebblefield, . 1063 Forward v. Armstead, 421, 1047 Garnett v. Macon, 109, 113, 118 Foss V. Harbottle, 66 Garrard t. R. R., . Ill, 119 Foster v. Cook, . , 565 Garrett v. Garrett, . 341 V. Crenshaw, . , 917 Garson v. Green, 483, 485, 489, 496 V. Johnson, , 183 Garthen v. Myrick, . 238 V. Trustees of the j \then- Gary v. Cannon, . . 186 seum, . . 14' t, 337, 485 Gass V. Gass, . 834 Fowler v. Bailey, . 286 V. Simpson, . 1231 V. Buck, . . 875 Gasaett v. Grout, . 670, 672, 678, 675 V. Rust, . , 486 Gault V. M'Grath, 869, 875, 876 Fox V. Hefner, . , 361 V. Trimbo, 431, 487, 497 France v. France, J 1046 V. Trumbull, 431, 487, 497 Francis v. Hazlerigg, . , 485 Gause v. Hale, . 47 Frank's Appeal, . , 340 V. Perkins, 1011, 1013 Fraser v. M'Clenachan, , 1101 Gedden v. Taylor, . 758 Frazer v. Goorte, . , 180 Gee V. Gee, . . 337 Frazier v. Brownlow, . , 747 Genshaler v. Hauman, . 733 T. Center, , 735 Gentel v. Arnauld, . 1014 Freeman v. Auld, , 878 George v. Bassing, . 541 V. Feuton, . 435 Georgia Creek Co. v. Detwold, . 1028 V. Freemiin, . 785, 1043 German v. Machin, 1051, 1057, 1063 v. Hartman, . 619 Gerrish t. Towne, . 1058 V. Harwood, . 24!) 252 Ghiselin v. Ferguson, . 143, 497 V. Kelly, 335, 33 7, 340 341 Gibbons v. Baddall, . 488 V. Mebane, . 148 Gibbs V. Angler, . . 1201 Freestone v. Kant, , , 447 V. Marsh, . . 383 French v. Davis, . , 565 Gibson v. Cook, . . 1202 V. Raymond, . 1236, 1243 V. Warden, . 299 Fronty v. Fronly, 601 V. Winslow, 69, 70, 71 Frost T. Frost, . ' 446^ 1238 Giddings v. Eastman, . . 65 Fry V. Fry, . 674 Gilbert v. Hoffman, . 830, 833 T. Shipler, . 1049, "1053] 1063 V. The Trustees, . 1044 Frye T. The Bank, 868 Gilchrist v. Stevenson, . 430, 431 Fryer v. Shepler, 291 Gillespie v. Burleson, . . 788, 1237 Fuller V. Yates, . .' 558 562 Gillin V. Drummond, . . 351 Fulton V. Moore, . ^ , 544 Oilman v. Brown, 481 483, 483, Furnace v. Pool, . 741 484 , 485, 489, 508 Fursake t. Robinson, . 427 Gilmore v. Johnson, . . 1044 V. Whitesides, 1248,1244, 1245 Gimber v. Williams, . . 764 Gable t. Daub, . 543 Givens v. Nelson, . 156 Gaffee, In re. .' 770 771 Glass V. Hulbert, 1043, 1054, 1055, 1056 Gage V. Dauchy, . . 758 Glen V. Fisher, . . 541, 673 Galin V. Niemcewiez, . , , 149 Glendenning v. Wood, : . 1047 Gaillard v. Porcher, . , 47 Glidden v. Strupler, . . 765 Galbraith v. Elder, . 63, 70, 73 , 360 Gloss V. Warwick, . 756, 764 V. Gedge, . 29 8, 297 , 298 Goddard v. Snow, . 632 Galbreath v. Qalbreath, 1045 ,1047 1049 Goepp's Appeal, . . 834 Gallego v. Gallego, 671 Gold V. Rutland, . . 1248 Galloway v. Hamilton, '. 483 492 Gomez v. Tradesmen's Bank, . 338 Gait V. Dibrell. . 423 Gooch V. Baxter, . . 497 Galway v. FuUerton, . 764 Goochenaur's Estate, . . 675 Gann v. Chester, . 493 498 Goodall V. Wentworth, . 180, 185 Gardener v. Hooper, . . 670 Goodburn v. Stevens, 293, 2 94, 313, 923 TABLE OP AMERICAN CASES. liii PiOE PAQB Goodloe V. Clay, . . 173 Grider v. McClay, . 1204 Goodiene v. Goodrene, , 734 V. Payne, . . 140, 247 Goodrich v. Proctor, . , 112 Griffin v. Blan chard, . . . 486 Goodrick v. Lambert, . , 46 V. Griffla, . , 951 Goodwin v. Cincinaati R. R '» * 242 V. Lovell, . 870 Goodyear v. Watson, . 141 V. Maine Ins. Co., . 244, 245 Gordon v. Finlay, , 247 v. New Jersey Oil Co, . 865 V. Graliam, 868 869 Griffith V. Reid, . 161, 163 186 v. Stevens, 558 563 Grigge v. Siaplee, , 631 Goring v. Kash, • , 427 Grigsby v. Hair, . , 493, 494 Goswiler's Estate, . 152 Grimes v. Mumford, . 874 Gott V. Cook, 1158, 1163 Grout V. Van Schoonhoven, , 48 Gouclier v. Martin, 1049, 1060 Grove v. Brien, . 153 Gough V. Cram, . , 1053 Grover v. Diffenderfer, 672, 676 V. Crane, 439, 1053, 1060, V. Grover, 440, 1339 1243, 1347 1097, 1098 Growning v. Behn, , 498 V. Manning, , 570 Grymes v. Hoxie, 440 Gould V. Fuller, . 173 Guild V. Guild, . , 670, 674 V. Gould, . . 180, 343 674 Guthrie v. Gardner, 334, 343, 344 345 V. Hill, . 734 V. Winthrop, . , 924 Gouldiug V. Goulding, . 70 Hackett v. Pegram, . 181 Gourley v. Leiselbigler, 395, 'l230,' Hacker v. Wheelock, . 754 1231, 1341, 1343, 1247, 1250 Haffey v. Birchetts, 143 Graeff v. De Turk, 601 Hager v. Hager, . 354 Graff V. Castleman, 119 Haggarty v. Peterman, 174 Grafton v. Woodward, 186 Hagruder v. Peters, 143 Graham v. McCampbell, 493 HaigU V. Reye, . 355 Gram v. Stebbins, 1096 Haight V Badgeley, . 1106 Gvangiac v. Arden, 1235 Haile v. Henrie, 287, 28J S, 289, 391 Grant y. Bisselt, . 853 V. Henry, . 303 V. Hook, . 118 Haines v. Ellis, . 754 V. Mills, . 488 V. Hiiines, 1045, 1047 V. Ramsay, 1043 Hale V. Plummer, 28 7, 293 , 313 V. U. S. Bank, . 862 V. Stone, 732, 733 Grapingether v. Fegervary, 497 V. Wilkinson, . 1093 Grattan v. Appleton, . 1343, 1244 Haleyburton v. Kershaw 929 V. Howard, 573 Hall V. Click, . 483, 493 Graves v. Dugan, 337 V. Creswell, . , 150 V. Graves, 350, 354, 35£ , 356 V. Hall, 543, 545, 546 , 548, v. McCall, J , 497 555, 560 570, 677, }29 , 1043, 1062 Gray v. Duke of Northumberland, 1013 V. Hill, . 347 Gray's Estate, 675 T. Maccubin, ! 493 494 Gray v. McDonald, 149 V. Peer, , 149 Greason v. Keteltas, . 1106 V. Perkins, . . 827 838 Greatorex v. Gary, 665 V. Plummer, . 293 294 Greely v. Dow, . 182 V. Robinson, . 173 184 Green v. Blair, . 247 V. Smith, . 180 v. Drummond, . 337, 340, 350 V. Thayer, . . 180 v. Graham, 393 V. Towne, . . 244 V. Green, . '. 545, 1331 Hallett V. Thompson, . 765 V. Johnson, , 1163 V. Whipple, , 499 V. Keen, . 1012 'l015 1032 Halliday v. Kirtland, . , 861 V. Perkins, . 1015 V. Overton, . 46 V. Sergeant, V. Stubblefleld, . , 247 Hallowell's Estate, 928 , 1054 Hallowell v. Horter, '. . 758 V. Winter, . , 65 Halsey v. Reid, . . 927 Greene v. Crockett, '. 135, 493 Ham V. Goodrich, 1044 1051, 1054 Greenfield's Estate, . 261, 431 1249 Hamblin v. Denneford, . 1106 Greennugh v. McClelland, 186 Hamilton v. Bishop, . . 733 , 734 Greer v. Boone, ., 676 V. Buokwalter t . ' 559 , 568 Gregory v. Mark, 671 V. Giliett, . . 487 v. Murrell, . 171 V. Jones, . 1044 Greuter v. Williams, . 299 V. Rakustraw, 492 liv TABLE OP AMERICAN CASES. Hamilton v. Tnylov, . . .765 V. Worsffold, . . 1013 Hammersly v. Smilh, . 765, 766, 768 Hiiramock v. Baker, . . . 156 Hamirnmd v. Stanton, . . 249 Hamor v. Moore, . . . 1234 Hampton v. Levy, . . .136 Hancock v. Minot, . . .917 Hann v. Goodrich, . . . 1061 Hannah v. Swarner, . 1169, 1170 Hannam V. Frver, , . . 930 V. Spear, . . .113 T. West Chester, . . 930 Hanson v Millett, . . . 1233 Hardcaatle v. Commercial Bank of Delaware, . . 136, 142, 152 Harder v. Harder, . . . 335 Harding v. Handy, . . 826, 830 Hardy v. Van Harlingen, . . 74"4 Hare v. Hare 1020 Hargrave v. King, . . 262, 263 Harper v. Harper, . . . S'iO V. Reno 71 V. Williams, . . . 498 Harrington v. Brown, . 246, 257 Harrison v. Brolaskey . . 7K7 Harris- V. Brooks, . . .166 V. Clark, 395, 446, 1162, 1231, 1243, 1244, 1247, 1249. 1250 T. Ferguson, . 135, 154, 183 V. Haines, . . . 427 V. Harris, . . . 741, 747 V. Knicklmcker, 1052, 1062 V. Slight 1160 V.Thomas, . . . 1022 V. Warner, 159, 161, 168, 187 Harrisburg Bank v. .Termon, . 144 V. Tyler, . 336, 341 Harrison v. Harrison, . . . 566 V. Lane, . .154, li9 V. Mock, . . .249 V. Naylor, ... 37 Harrow v. The State, . . .442 Hart V. Chalker, . . . .873 T. Hart, . . . .446 V. The Mayor of Albany, . 1018 Hartm-an's Estate, . . . 1161 Hartwell v^ Smith, . . . 157 V. Whitman, . . 171 Haskin v. Woodward, . . 1023 Haskins v. Hamilton Ins. Co , . 835 Haslet V. Haslet, . .291, 1049, 1058 Hastinscs v. Clifford, . . .569 Hatch V. Atkinson, . 1231, 1237 V. Davis, .... 431 Hatcher v. Hatcher, 1044, 1054, 1057 Hauptman v. Catlin, . . . 763 Hauser V. Shore 118 Haven v. Foley 774 Havens v. Fondry, . . .178 V. Havmis, . 558, 563, 568 V. Sackett, . 543, 547 Haviland v. Myers, . 673, 675, 676 Hawkes v. Hubback, V. Saunders, Hawkins v. Hunt, Hawley v. Clowes, 135, PAQE . 771 . 435 . 1044 1013, 1020, 1031 V. Cramer, 185,251,257, 258, 260, 261 V. .Tames, 570, 1161, 1162, 1202 V. Mancius, . . .65 Hay den v. Cabot, . 180, 182, 183 V. Stuart, . . .494 Hayes v. Kershaw, 430, 428, 430, 441, 443, 444 Hayman v. The Governors of Ru;;by School, .... Haynes v. Seechrist, . Hayneswonh v. Cox, . Hays V. Jackson, V. Ward, Heacock v. Coatesworth, Headley v. Kirby, Heager's Bx'rs, In re, . Heard v. Evans, . Hearle v. Gieenbank, . Heath v. Heath, . Heatbman v. Hall, Hebb V. Hebb, . Hi'ck V. Clippenger, Hecker v. Cosgrove, . Helms V. Francisco, 672, 673, 674, 676, 677, 678 Henderson v. Henderson, V. Viiux, V. Warniack, Henry v. McClosky, V. Raiman, V. Smith, . Henson v. Ott, Herbert v. Scofield, V. Wren, Heron v. Hoffner, Hertell v. Bogert, Hess' Estate, Hestonville R. R. v. 598' 299 600 927 136 .■ 73 . 1351 63, 65 . 859 . 550 673, 675 733, 734 . 1243 734, 735 . 66 73, 430, 431 . 1105 . 337 . 1163 351, 361, 360 . ■ . .747 . 1161 . 482 . 559, 563, 564 . 570 . 110, 111 . 145. 170, 171 Shields, . 245 Helh V. Wooldridge, . 1044, 1058 Hewes v. Dehon, . . 922, 927 Hickman v. McCurdy, . 150, 185 Hicks V. Ciimpton, . . . 1013 V. Michael, . . .1018 Hidden v. JoJau, . . 361, 363 Higgiubotham v. Cornwell, . 558 Higsjins V. Woodward, . . 1018 HiiTh V. Batte, . . . 492, 497 Hill V. Gomme, . . . .1055 V. Hallett, .... 252 V. Hill. . . . 672, 673, 677 V. McRae 773 V. Manner, .... 136 V. Myers, . . . .391 V. Simpson, .... 305 Hilliard v. Binford, . . .569 Hilton V. Christ, . . . 153, 173 Himes v. Keller, . . 140, 153, 170 Hinckley v. Smith, . . .765 Hind V. Evans, .... 859 TABLE OF AMERICAN CASES, Iv FAGG 171 44 1244 621 73 Hiiideman v. Hindeman, Hinsdell v. Murray, Hinson v. Pickett, Hobb V. Hobb, . Hobbs V. Blandford, . Hockinbury v. Carlisle, Hodges V. Kew England Screw Co., 243 Hodgson V. Macy, . . . 345 Hodson V. Macy, .... 349 Hoes V. Von Hoeson, . . 930, 922 Hoff's Appeal, . . . 924, 927 Hoffman Coal Co. v. Cumberland Co., . . .241, 242, 357, HofTman v. Johnson, . T. Noble, V. Toner, Hog V. Bramhall, Hogan T. Jaques, V. Reynolds, Hoge V. Hoge, Hoitt V. AVebb, . Holbrook v. Bui'k, V. Kenney, 261 135 835 758 869 3.55 . ■ 147 387, 351, 3.52, 360 . 239, 247, 2.52 835 495 3.54, T. Smith, Holcomb V. Holcomb, Holdich V. Hoklich, HoWiidgev, Gillespie, Holdship V. Patterson, Holiday v. Atkinson, Holland v. Adams, 496 241 566 63 772 446 1204, 1243, 1244, 1247 . 1201 420, 427, 445 V. Cruft, V. Hensley, Holley V. Adams, 1204, 1243, 1344, 1247 Holloway v. Ueadington, . 42 >, 434 Hollingworth v. Floyd, 142, 152, 153 Holraan v. Bailey, . . .870 Holmes v. Friend, . . . 182 V. Holmes, . . 351, 3.59 Holt V. Holt, ... 63, 71 Homer v. Savings Bank, 174, 176 177, 178 Honore v. Bakewell, . 485. 493, 497 Hood V. Bouman, . 1048, 1054, 1083 Hooper, Ex parte, . . . 862 Hooper v. Liiney, . . . 1057 Hope V. Hawkins, . . . 443 Hopewell V. Bank of Cumberland, 174, 176, 179 Hopkins v. Oilman, V. Soott. Hopkinson v. Rait, Hiird V. Hord, Horner's Appeal, Horner v. Lyetli, Horry v. Glover, Hortell f. Bojevt, Horton v. Horner, Hough V. Martin, House V. House, . Houser v. Lamont, Houston V. Bank, Howard v. Jhe Bank, V. Carpenter, 1101 110 147 867 676 1159 45 1103 '. Ill . 493 . 1022 . 922 . 1062 144, 152 . 1240 . 881 Howard v. Moffatt, V. Priest, V. Thomas, . Howe, In the Matter of, V. Frazer, V. Rogers, . V. Ward, V. Wilders, Howell V. Baker, Hoxie V. Carr, 113, 293, 398, 300, 301, 307, 310 Hoy V. Bramhall, V. Hansborough, Hoye V. Troupe, . Hoyt V. Martinaee, Hubbard v. James, Hubert v. Murphy, Hughes V. Can nun, V. Kearney, V. Littlefield, V. Peters, V. Worley, Huguenin v. B isely, Hugus V. Walker, Hulel V. Soulard, Hunt V. Bass, V. Benson, . V. Booth, . V. Moore, . Hunter v. Hunter, V. Richardson, Huntingdon v. Gilinon Huntly V. Huntly, Hurr V. Burbower, Hurtt V. Fisher, . Husband v. Ballard, Huson v. Wallace, Huss V. Morris, . V. Stevens, . Husten's Appeal, Huston V. Cassidy, Hutchins v. M'Cauley, Hutchinson v. Tindall, V. Underwood, Hutts V. Colwell, Hyndman v. Hyndam, 672, 676, 677 300, 301, 303 3.58 954 1,58 1043 180 763 73, 251, 363 874, 875 1095 917 345, 246, 841 244 435 43 489 1,50 757 857 829 1048 180 350 300 , 733 836 . 1238 175, 178 . 1344 . 434 1014 1161 127 63, 70 443, 447 . 447 Iglehart v. Crane, Imboden v. Hunter, Imlay v. Huntington, Ingalls V. Dennel, Iiigleliart v. Armiger, 488, 826, 345, 732 1158, 144 289 156 356 759 732 357 483, Ingraham v. Dunnell, . Ingram v. Kirkpatrick, Ins. Co. of N. A. V Co Irick V. Black, Irish V. Nutlin.j, . Iron V. Smallpiece, Irwin's Appeal, . Irwin V. Davison, V. Ivers, v. Tabb, . . 869 . 360 741, 749 . 180 493, 494, 500 . 1031 . 423 Union Can. . 1095 131, 135, 136 . 1280 . 1237 . 289, 292 1018, 1021 . 336 557, 864, 872, 877. Ivl TABLE OF AMERICAN CASES. Isenliart v. Brown, Ives V. Ashley, . FAQB 570 256 Jack V. M'Kee lO.i.'i Jackman v. Hallock, . . . 493 V. Ringland, 263, 334, 337, 351, 359, SGI, .S63 Jackson v. Andrews, . . . 1020 V. Bateman, . . 335, 339 V. Brownsnn, . . 1017 V. Churchill, . . . 569 V. Golden, . . . 245 T. Pelter, . . .344 V. Forrest, . . .343 V. King, . . .827 T. Matsdorf, . . 335, 345 V. Mills, . . . 3.S4 T. Moore, . . 335, 337 V. Pierce, . . . 1063 V. Seely, . . .334 v. Somorville, . . 830 V. Sternbergh, . . 333 V. Updegraetf, . 109, 119 V. Vandolfsen, . . 257 T. Veeder, . . .599 V. Welsh, . . . 2o7 Jacobs V. R. R., . . 1043, 1051 Jaggers T. Esteg, . . . 1238 Jacques v. The Methodist Episco- pal Church 739 James' Claim, .... 47 James v. Bird, . . . 487, 503 V. Emery, . . . .834 V. Gibbs 670 V. Johnson, . . 859, 804 V. Mayrant, . . . 737 V. Morey, . 862, 871, 872 V. R. R. Co., . . 65, 341 V. Rice 863 V. Rogers, . . . 880 Jameson v. Brady, . . 733, 735 Jamison v. Glasscock, . 251, 253 Janny v. Stephens, . . . 151 Jarden v. The P. W. & B. R. R. Co., 1013 Jarmon v. Wilkinson, . 743, 759 Jarvisv. Brooks, . . 286, 288 V. Dutcher, . . .951 V. Prentice, . . . 734 V. Wvatt, . ... 47 Jefferys v. Jefferys, . . . 436 Jenkins v. Eklridge, 263, 2'i3, 338, 350, 351, 352, 338, 361 V. Hiles, . . .114 V M'Conico, 732, 734, 741, 745 V. Pye, . . . 826 V. Simpson, . . . 832 Jennison v. Graves, . . 334, 335 V. Hapgood, . . 357 Jerome v. Ross, 1012, 1015, 1033 Jervis V. Smith, . 1051,1063 Jesus College v. Bloome, 1034, 1035 Jewitt V. Miller, 240, 250, 252, 254 John V. Jones, .... 184 PAQB Johnson v. Bennett, . . 240, 1160 V. Blackman, . . 247 V. Gawthorne, . 482, 498 V. Cummings, . . 7(10 N. Gushing, . . .381 V. Gallagher, . . 751 V. Ilubbell, . 1053, 1061 V. Johnson, . 183, 261, 1031 V. Kay, . . .247 V. Miitson, . . .671 V. M'Gruder, . . 1045 V. Quiirles, . . .336 V. S. & B. R. R. Co., . 1107 V. Stevens, . . . 1233 V. White, . 148, 1024 Johnston v. Coramins, . . 753 V. Gatwood, . . 363 V. Glancy, 1045, 1054, 1063 V. Gwathmey, . 493 V. Johnston, . 1060 T. La Motle, . 363 Jones V. Broadhurst, . . 145 V. Brown, 1344, 1351 V. Collin, . . 565 V. Cowperthwaite, . 758 V. Cnissthwaite, 755, 759, 763 V. Davids, . n40 V. Dj er, 1344, 1247 V. Jones, . 543, 548, 549, 550 V. Locke, . . 442 V. M'Kee, . . 353 V. Neale, . 286, 3'^7, 398 V. Obenchain, . 439, 441, 443 V. Pease, . . 1061 V. Peterman, 1046, 1048, 1049 V. Powoill, . . 569 V. Quenipack Banl , . 176, K? V. Salter, . . 767 V. Selby, . 1331, 1338, 1248 V. Smallpiece, 1243, 1244, 1345 V. Smith 861 V. The Boston Mill Cor- poration,. . . 1105 T. Trimble, , . 180 Jordan v. Headman, , . 75S V. Hudson, . . 143 Jorden v. Money, 258 352, 356 Jourdan v. Green, , . 47 Joyner v. Congers, , . 347 Judah V. Mieuie, , . 185 Julian V. Reynolds, , • 247 Juztin V. Toulniin, . 828 Kane v. Gott, . 1159 V. Vanderburg , . 1021 Kauffelt V. Bower, , . 483 Kaufman's Appeal, , . 1049 Kay V. Curd, , . 1058 Kearney v. Malcomb, 548 549 550, 552 V Tanner, , . 934 Keech v. Saudford, , . 380 Keeton y. Kenton, , . 258 Keighler v. Savage Man, Co., 23S, 239, 280, 381 TABLE OP AMERICAN CASES. Ivii PAOB FAQB Keim v. Weippert, . 748 752, 756 Kirkpatrick v. McDonald , 336 341 Keiper v. Helfricker, . 756, 757 Kirksey v. Pike, 1095, 1097, 1099, 1105 Keisler v. Clark, . . 1018 Kisler v. Kisler, 261, 363 334, 336, Keith V. Goodman, . 166 341, 351, 359, 361 T. Goodwin, • . 160 Klapworlh v. Dressier, 148 Kekewich v. Maiming, 437, 438 Kleisler v. Scott, . , 142 Kellogg V. Ames, 874, 876 Klopp V. Lebanon Bank, , 136 V. Wood, 63, 334 Kluender v. Lynch, , 758 Kelsey v. Deyo, . . 921 Knapp V. Smith, . , 758 Kelso V. Taber, . 755, 759 Knowles v. McCamly, , 740 Kemp V. Balls, . . 151 Knox V. Jordan, . , 747 V. Kemp, . . 600 V. Vallandingham, , 156 Kendall v. Rider, . 288 Koehler v. Black River Co., , 343 Kender v. Jones, . 1012 Kottman v. Peyton, 631 Kendrick v. Robinson, . P59 Kramer v. Arthurs, 393, 397 311 Keunard v. Harris, . 262 V. The Trustees, , 874 V. M' Right, . . 343 Krider v. Lafferty, , 444 Kennedy v. Kennedy, 261 352, 826 Krug V. Hamilton, , 288 V. Mills, . 569 Kuhn V. North, . , 153 V. Nedrow, . 559, 564 Kyle V. Tete, , 486 V. Ware, 430, 431, 434, 435, 437 Kyner v. Kyner, . • 152 Kenny v. Collins, . 493 L'Arnowreux v. Van Rensselaer, 741 V. Udall, 673, 674, 675 , 676, 677 Lacey v. Hall, 55, 73, 288 389 292 Kensington, Ex parte, . 8B1 Lacy V. Waring, . 393, 393 298 Kent V. Land Co., 66, 67 LaSerty v. Gurley, , 70 358 V. Mahaffey, . 353 Lagow V. Badollet, , 484 493 V. Malthews,_ . 136 La Grange v. Merrill, . , . 159 Ker V. Vassen, . 434 Lake v Dodd, 9.i4 Kerr v. Day, . 1163 Lancaster v. Dolan, 745 754 769 Ketchum v. Janney, . . 874 Lancaster Bank v. Miley, 286 291, 393 Key V. Griffin, . 544 Landers v. Tuggle, A 184 Keyes v. Bush, . . 174 Lane v. Tyler, 388 Keyser's Estate, . , . 927 Langefelter v. Richey, . 336 340 Keyzey, Case of, . . 923 Langford v. Perrin, 154 156 159 Kidd V. Dennison, 1030, 1021, 1027 Langhorne v. Payne, . . 363 Kidney v. Coussmaker, 556, 557, 1201 Langston, Ex parte, . , 861 Kilpin V. Kilpin, . 346 Lanning v. Peyton, . 118 Kimball v. Cunningham, . . 835 Lapham v. Barnes, 166 181 King V. Baldwin, . 146 , 153, 185 Large v. Van Buren, . . 871 V. Beck, . 47 Larkens v. Biddle, 446 V. Cusbraau, . 65 V. Rliodes, 335 339 V. Hamilton, 339, 841 Larrabee v. Van Alstyne, • 569 V. Howard, . 1106 Lasher v. Lasher, , 558 V. King, . 47 Lassen ce v. Tiernay, . , 46 V. Thompson, 1047, 1048; 1062 Lassiter v. Dawson, . , 671 V. Whltely, 47, 934 Latham v. Henderson, . . 338 King'ey v. Wallis, . 835 Lathrop's Appeal, 136, 140 143 Kingsland v. Rapalye, . . 38 Lathrop v. Gilbert, 343 Kingsley v. Gilman, . . 765 V. Hoyt, . ^. 363 337 Kingston Bank v. Gay, . 130 V. Wightman, . 257 Kingswell v. Willard, . . 73 V. Wilson, . 169 Kinley v. Hill, . . 131 Laubeaume v. Sweeny, . 150 Kinnaird v. William, . 545, 571 Laurens v. Lucas, 113 Kinney v. Harvey, . 143 V. Read, 939, 930 V. Kurnen, . 831 Lavalette v. Thompson, 146 150 V. The Public Adm'r, . 1231 Lawrence v. Blow, a 150 Kinsey v. Dearmon, . . 175 V. Cornell, . . 170 V. Woodward, 559, 562 V. Taylor, . 293, 398 Kinsler v. Clark, . . 1023 V. Tucker, . . 873 Kinsley v. Abbott, . 286 Lay V. Brown, 670 Kirby v. Miller, . . 746 Lazarus v. Bryson, 350, 357 358 Kirkman v. Bank, . 173 Le Neve v.. Le Neve, . , 954 v. Miles, . 1164 Leadenham v. Nicholson ♦ . 1158 Iviii TABLE OF AMERICAN CASES. FAOB PAG 8 Leavenworth v. Cooney, , . 570 Listen v. Hodgson, . 446 Leavitt v. Wooster, . 917 Litchfield v. Cudworth, 239, 246 Lecliman v. Eai-1 of Carlyle, . 1201 Little v. Baldwin, . 746 Ledelliug v. Powers, . , . 740 V. Bmwn, . . 486 Ledlie v. Vrooman, , . 760 v.«Willitts. . . 1233 Lee V. Alston, . 1035 Livermore v. Aldrich, . . 343 v. Boak, ' 1346, 1347 Livingston v. Livingston, 938, V. Fox, . . . 69 1013, 1013, 1015, 1023 V. Griffin, 135 152, 153 V. Newkirk, 917, 927 V. Lee, . 1050, 1001 V. Reynolds, 1017, 1023 V. Luiher, 1244, 1245 V. Rolle, . . 1106 V. Rook, . 149 Lloyd V. Baldwin, . 305 V. Stone, 857 858, 863 V. Carter, . . 334 Lees V. Nuttnll, . 263, 263, 300 V. Currin, . 263 Lefevre's Appeal, . 389 v. Hart, . . 1167 Lefforge v. West, ' 1033, 1034 V. Lynch, 69, 70 Leftin v. Erspry, . 1105 V. Spilleit, . 361 Lefton V. Ersky, . , . 1105 Lobdell V. Lobdell, . 1046, 1057 Legal V. Miller, . , . 1059 LobdUrette v. Williiims, . 434 Legatt V. Sewell, . 37 Loder V. The R. R. Co , . 869 Leggett V. Dubois, , . 343 Loftis V. Glass, . . 1159 Leigh V. Savidge, , . 930 V. Gross, . . 1160 Leiper's Appeal, . . . 1171 Logan V. Reynolds, . 131 Leiper v. Irwin, . 1161, 1171 V. Simmons, 619, 6; 0, 623, 623 V. Thomson, , . 1159 Logen V. Heard, . . 361 Leisenring v. Black, 170, 239, 340, 251 Lombard v. Cobb, . 180 Leitch V. Wells, . . 246 Long v. Barnett, . . 173 Leman v. Whitley, S50, 355, 356 Long V. Steiger, . . 334 Lempheir v. Ferguson, , . 181 V. White, . 735, 747 Lench v. Lench, . , . 343 v. Wier, . 548 Leuiiig v. Peyton, . 109 Longley v. Griggs, 156, 159 Leonard v. Crommelin, , . 571 Lonsdale's Estate, . 442 V. Morgan, . , . 835 Loomer v. Wheelwright, . 143 V. Rogan, , . 763 Lord V. Lord. . . 559, 566, 570 Lester v Mahan, . , . 836 V. Staples, . . 180 V. Renne, . , . 1053 v. Underdunck, . . 1051 Letcher v. Letcher, , . 334 Lord Cathoart v. Pascal, . 433 Letchmere v. Earl of Ca ■lyle, 433 Lord Irnham v. Child, • 358 Leurens V. M'Grath, . .' 929 Lorillard v. Coster, . 1158 Lewin v. Lewin, . , . 930 Lothian v. Hasset, . 861 Lewis v. Adams, , . 732 Loud V. Sergeant, 136, 143 V. Covelland, . . . 493 Loudon v. Warfield, 1021, 1033, 1023 T. De Forest, . . 177 Loughborough v. Loughbor ough, 1160 V. Elrod, . , . 733 Louis V. Covilland, . 484 v. Harris, . , . 764 V. De Forest, . 874 V. Johns, . , . 758 Lounsljury v. Purdy, . 334, 338 V. Lewis, . . . 544 Love V. Sierra Mining Co., . 381 V. Palmer, 136, 137, 148 V. Wall, . 155 V. Smith, . , 558, 563 V. Watkins, . 765 V. Yale. . . . 741 Lovel V. Briggs, . . 247 Lidderdale.v. R(n)inson, 136 140, 170 Loving V. Hunter, . 43 Ligget V. Bechtol, . 69 Lowell V. Boston & Lowell R. Co., 183 Liifon V. Alexander, . , . 483 Lowndes v. Bettle, 1011, 1018 Lillard v. Turner, 741, 743, 749 V. Chisolm, . . 143 Lindsay v. Bates, 493, 494 Lowry v. Commercial Bank . 119 V. Pleasants, . , . 1199 V. Lumberman's Bank, . 181 Lingan v. Henderson, . , . 496 V. Spc-ar, . . 823 Liugelfelter v. Ritchey, 336, 837, Lowther v. Condon, . 830 340, 351, 355, 357 V. Lowther, . 1115 Lining v. Peyton, . 117 Lumley v. Waguer, . 1106 Linker v. Smith, . . 619 Lyle y. Ducombe, 858. 864. 873 Lion V. Hunt, . 1030 Lyman v. Cessford, . 757 Lippincott V. Hopkins, . 761 Lynch v. Cox, . 334 .V. Ridgway, . 600 v. Dearth, , . 49J TABLE OF AMERICAN CASES. lix PAGB PAGE Lyne v. Grouse, . . 745 M'Ginn v. Schaeflfer, . 353 Lynn v. Lynn, . . 837 M'Ginui^s v. M'Ginnls, 546 Lyon V. Hunt, . 1023 M'Gonigal v. PInmmer, 485 V. Jones, . 251 M'Gowan v. M'Gowan, 340 V. Lyon, •. 247 M'Gowin V. Remington, M'Graw v. Davenport, "l098. 1114 47 M'Aboy v. Johns, . 765 M'Guire v. M'Gowen, 343 M'Afee v. Ferguson, . . 619 M'llheney v. M'llheney, 1048 M'Alister v. Montgomery . . 303 M'Intire v. Hughes, . '. 427 ,439 M'Bee, Ex parte. . 1160 M'Intyre v. Knowllon, 758 M' Bride v. Smyth, 768, 769 v. Miller, 146 M'Call V. M'Call, . 553 M'Kay v. Green, 917 M'Campbell v. M'Campbell, 917, 927 M'Kee v. Phillips, 1044, 1054, 1055 M'Candlishv. Keen, 481, 483, 4S5, M'Keenan v". Phillips, . , 434 487, 488 M'Kenna v. Georce, 135, 153, 154 , 183 M' Cannon v. Pettit, . , . 335 M'Killip v. M'Killip, . , 487 M'Cants v. Bee, . , . 261 M'Kinney v. Rhoades, , 433 M'Cartney v. Calhoun, , . 347 M'Knight v. Bright, . , 497 M'Caskey v. Graff, , 260, 262 V. Bobbins, , , 1099 M'Clanachan v. Henderson, 63, 65 M'Lean v. Towie, 143 M'Clellan v. Darragh, . , . 1053 M'Learn v. M'Lellan, .' 925 937 M'Clung v. Burne, , . 141 M'Loud V. Roberts, . , 917 M'Clure's Appeal, , . 1159 M'Mahon v. Fawcett, 134 136, 138 ,171 M'Clure v. Johnston, . 1051, 1061 M'Millar v. VanVarter, , 1338 V. M'Clure, . 1046, 1053 M'MuUen v. Warner, . , , 879 V. Miller, , 631, 622 M'Neil V. National Bank 1 ■ • 443 M'Collum V. Hinckley, , . 174 V.San ford. 155 M'Comus V. Easeley, . , . 1093 M'Neill V. Miigee, , 1105 M'Connell v. Scot, . 135 M'Neily v. Patchin, . , , 155 M'Corkle v. Brown, . . . 1059 M'Queen v. Farquhar, , , 600 M'Cormack v. Obannon, , . 153 V. M'Queen, . 545 573 M'Cormick's Appeal, . , 289, 293 M'Vey V. Boggs, , 677 M'Cormick v. Grogan, , . 353 M' Williams v. Nisby, . . 769 770 V. Holbrook, 759 , 762, 763 V. Irwin, . , 147, 157 M'Coskey v. Graeff, . 830 883, 830 Machen v. Machen, , 47 M'Cown T. Jones, . . 486 Mack's Appeal, . , , 443 M'Craw v. Davis, , . 836 Mackenzie v. York Building Co., 343 M'Cullough V. Allen, . . 559, 569 M ickie V. Burroughs, . 734, 738 ,745 V. Cowlier, , . 357 Maddox v. Dent, . 1160 V. Somervill e, . . 293 V. Wliite, 'l018,' 1030 V. Wilson, . 756 Madison v. Chinn, 1095 M'Cune v. Bell, . . . 171 V. Madison, . 346 M'Curd V. Johnston, . . . 1057 Madrid Bank v. Pellz, , 343 M'Daniel v. Calvin, . . . 866 Magee v. M' Dowell, . 1055 V. Douglass, . 569 Mahaffy v. Shore, , , 147 M'Dermot v. Lawrence, 337,280, Mahan v. Mahan, . 427 439 297, 303 Mahon v. Baker, . 1047, 1049 M'Donald v. Magruder, . 155 V. Gormley, . 753 V. May, . 263, 363 Mahoney v. Evans, 759, 761 , 763 M'Donough, Ex parte. . 343 Major v. Millison, 431, 439 , 443 M'Dougal V. Dougherty, . 141 V. Symmes, , , 763 M'Dowell V. Fithian, . . 262 Malin v. Bull, , 183 V. Murdoch, . 1243 V. Malin, . , 335 M'Elfresh v. Shley, 541, 543 550, 555 Malins v. Brown, , , 1053 M'Elhenny v. Hubert Oil Co. 66, 67 Mallan v. Gritfith, , . 937 M'Ewen v. Troost, , . 1837 Manchester v. Sahler, . , J 760 M'Fait's Appeal, . , . 920 Manes v. Durant, . 619 633 M'Feely v. Moore, . 46 Manlove v. Bale, . . 64 M'Gee v. Beall, . . 493 Manly v. Slason, . 482, 483 , 485" V. Prouty, 169 181, 187 Mansel's Estate, . , , 933 M'Gheehen v. Duffleld, . . 1106 Mapps V. Sharpe, , 244 M'Gill, In re. , . 143 Marble Company v. Ripley, 1108, 1107 M'GilMcuddy v. Cook, . . 1245 Mark's Appenl, . • 431 Ix TABLE OF AMEEICAN CASES. Markell v. Eichelberger, Markliain v. Gueriant, V. Walkins, Marlatt v. Warwick, Marriott v. Badger, Marsli V. Hamington, V. Harrington, V. Marsh, . V. Pike, . V. Turner, V. Wheeler, Marshall v. Bousford, V. Christmas, V. Miller, V. Peters, V, Stevens, Marston v. Marston, Martin v. Fry, V. Martin, T. Sherman, V. Trigg . 876 . 772 . 772 . 361 . 572 . 180 . ls2 . 917 143, 148, 924 . 483 1161, 1203 . 37 484, 485, 486 . 754, 762 . 1014 . 380, 746 . 1239 . 917, 918 240, 349, 674 . 676, 1165 674 V. Wyncoop, 239, 248, 251, 252, 253, 255 Mascall v. Goodall, Mason's Appeal, Estate, . Mason v. Bovett, V. Lord, . V. Martin, Massey v. M'llwane, V. PiirUer, Massie v. Watts, Mason's Appeal, Mastin v. Marlow, Mathews v. Dragand, V. Walwyn, Matlack v. James, Matlock V. Matlock, . Matter v. Lillie, Matthewman's case, Mrs., Matthews v. Aiken, . V. Bliss, V. Bowler, . Mattiawan Co. v. Bentley, Mattingly v. Speak, Mattix V. Weeand, Maul V. Harrison, V. Rider, Mauri v. Heffsrman, . Ma.twell V. Maxwell, . Mayberry v. Neely, Mayburry v. Brien, Mayham v. Coombs, . Mays V. Feaster, Maywood v. Johnston, Meacham v. Meacham, Mead v. York, Mears V. Hamilton, V. Mears, Meaner v. Hamilton, Mechanics' Bank v. Seton, Meek v. Kettlewell, Megargel v. Saul, Meggs V. Delmock, . 544 . 1013 . 927 . 834 183, 184 340, 259, 260 954, 1057, 1063 767 73 1013 828 65 877, 879 286, 287 . 286 751, 174, 757 755 151 . 70 488, 489 . 834 . 446 480 176 71 . 180 . 553 . 733 . 285 . 485 . 1024 735, 737 1233, 1251 . 870 . 254 1337, 1345 . 248 1096, 1097 . 436 . 482 . 487 Melchor v. Burger, . 546, 549, 550 Melory v. Cooper, . . . 494 Melloy V. Melloy, . . .340 Melms V. Wcrdehoof, 160, 162, 166, 16S Melvin V. Melvin, . 600 Menude v. Delaire, . 954 Mercer v. Newson, . 254 Merchant v. Bunnell, . 7.58 Merchant v. Merchant, 1233, 1233 Merill v. Smith, . . 343 Meriwether v. Booker, . 1095 Merrill v. Chase, 870, 873, 879 Merryman v. The State . 147, 151 Messer v. Swan, . . 180 Metcalf V. Cook, . . 746 V. Putnam, . 1043 Metcalfe v. Shaw, . 763 Methodist Episcopal Church v. Jaques, . . 341, 343, 738, 1335 Mel zer v. Baldwin, . . 149 Meure v. Meure, . 38 Mialhi v. Lessabe, . 1003 Michener v. Dale, . 1341 Michoud V. Girod, 63, 238, 239, 246, a58, 830 Middlesex v. Minot, . . . 245 Miffit V. Eynd, . . 359 Miller's Appeal, . 830, 834, 1163 Miller v. Bingham, . 7i5 V. Brown, 749, 752, 761 V. Gotten, . 1056, 1057 V. Harwell, . 917, 938 V. Howry, . 180 V. Huddlestone, . 930 V. Jeffrys, . 1337, 1344 V. Lynn, . . 47 V. Meetch, 1169, 1170 v. Mitchell, . 258 V. Newton, . 753, 761 V. Ord, . 144, 175 V. Pearce, . 352, 359 V. Springer, . 543 V. Williamson, . . Ill, 746 T. Woodward, . . 136 Mills V. Dumford, . Ill V. Hyde, . 134, 183 V. Mills, . 1060 Milner v. Grey, . . 1106 Mimms V. Lockett, . 1045 Mims V. Macon & Western R. R. Co., .... . 485, 486 Mincot V. Mitchell, . 336 Miner v. Graham, . 764 Minford v. Mench, . 257, 260 Minturn v. Bayles, . 1057 V. Seymour, . . 420, 433 Minus V. Morse, . . 1003 Mirced v. Freeniont, . . 1014 Mirehouse v. Scaife, . . 939 Mitchell V. Dewitt, . 156 V. Dors, . 1011, 1013 V. Gates, . : 733 v. Pease, . 1351 V. Reynolds, . . 770 TABLE OF AMERICAN CASES. Ixi FAQB FAQB Mitchell V. Sevier, . 675 Mulford V. Mench, . 239, 241 V. Sproul, . 185 MuUikin v. Mullikin, . 491 V. Winslow, . . 1108 Mullison's Appeal, . 876 Mitchener v. Atkinson, . 570 Estate, . 877, 879 Moffit V. M'Donald, . . 341 Mumford v. Murray, . 675, 676, 677 Mollan T. Griffith, . 917, 922 Munsdorf v. Howard, 1048, 1051, Montague v. Dawes, . . 356 1052, 1061 V. Duvals, . . 244 Murdock's case, . . . . 251 Montefiore v. Montefiore, . 435, 1048 Murphy v. Clark, . 1103 Montgomery v. Agricultural V. Hubert, S43, 350, 355, 357 Bank, . 746 Murray v. Ballou, . lis V. Eveleigh, . 737 V. Baree, . 755 V. Milliken, . 1162 V. Barlee, . 750, 753 Moody T. Matthews, . . 73 V. Barney, . 865 V. Osgood, . 759 V. Catlett, . 874 V. Vandyke, . 246 V. Keyes, . 760 Mooersv. Wait, . . 1017 Murett V. Wells, . • 497 Moore's Appeal, . . 254 Musselman v. Eshelman, . 346, 257 Moore v. Brecken, . 73 V. Marquis, . . 1012 V. Campbell, • . 152 Musser v. Gardner, . 758 V. Ferrelt, . 1011 Myer's Appeal, . . 70, 263 v. Harrison, . 173 Myers v. Myers, . . 342, 672, 678 V. Hilton, . . 247, 257 V. HolcomLie, . . 482, 498 Nagle's Appeal, . 1163, 1199 V. Isley, . 134, 167, 169 Naglee v. Iiigersoll, 1160, 1163 V. M'Millen, . . 761 Nairn v. Prouse, . . 489 V. Miisson, . 1014 Napier v. Howard, . 672, 676, 677 V. Moberly, . 164 Nave V. Berry, . . 1030 V. Moore, 134, 174, 183, Niizareth Lit. Inst. v. Lowe, . 496 251, 263, 675 Neale v. Hagthrop, . 334 V. Sewell, . . 1003 V. Neale, . 1047, 1048, 1060 V. Small, 1045, 1047. 1055, 1057 Needles v. Needles, . 839 V. Young, . 186 Neele v. Neele, . 1057 Moravian Brethren v. Greenleaf, 745 Neffv. Miller, . . 150 Moreau v. Sattkran, . 286 Negley v. Lindsay, . 831, 883 Miireland v. Lemaster, . 1045 Neill v. Keese, . 341 Moieton v. Harrison, . . 496, 500 Neilly v. The Merchants' Ins. Morey v. Herrick, 70, 262, 338, 339 Co., . . . . 1095 Morgan v. Boone, . . 71 Neilson v. Fry, . 152 V. Elam, . . 746 Nelson v. Boyce, . . 855, 866 V. Mullison, . . 1233 V. Hagerstown Bank, . 954 V. Tollett, . 1061 V. Pinegar, . 1032 Moroney's Appeal, 858, 859, 865 Neptune Ins. Co. v. Dorsey, . 152 Morris v. Joseph, . 249 Neves v. Scott, . 46, 47, 48 V. M' Anally, . . 136 New Brunswick Cc . V. Mug- V. Mowatt, . 917 ■ gridge, . 212 V. Nixon, . . 351 New Brunswick v. R. R. Co., . 66 V. Oaktord, . 147 Newly V. Skinner, . 1200 V. Stephens, . 446 Newells v. Morgan, . 334, 345 Morrison v. Bierer, . 437 V. Newell, . 1238 V. Caldwell, . . 65 Newett V. Morgan, . 3t3 V. Marvin, . 144 Newfille V. Thompson, . . 434 V. Poynlz, 154, 173, 183, 184 Newlin v. Freeman, . 747 V. Taylor, . .173 New London Bank v. Lee, 175, 177, 179 Morrow v. Brenizer, 312, 1159, Newman v. Newman . . 7.J4 1161, 1170, 1197, 1203, 1205 Newton v. Swazey, 1042, 1045, V. Kees, . 831 1057, 1063 Morse v. Mason, . . 762 Nicholas v. Adams, 1231, 1232, Mosely v. Lane, . . 262 1333, 1237, 1238 1241, 1243, 1245 Moses V. Murgatroyd, 173, 174, 175, 423 Nicholl v. Ogden, . 287, 397 Moss V. M'Call, . . 733 Nicholls V. Peak, 1U9, 111, 114, 118 Mounce v. Byers, . 497 Nichols V. Parsons, . 169 Mowry v. Wood, . 951 V. Thornton, . 334 Mulfordv. Bowen, . 339, 247 Nicholson v. Miller, . 7U6 IXU 'TABLE OF AMERICAN CASES. PAGE PAOB Nickel V. Hamly, . 765 Page V. Estes, . . 670, 673, 675 Nickels v. Miller, . 772 V. Page, . 334, 335, 337, 343 Nicoll V. Mum ford, . 433 Paige V. Paige, , . 338 Nielsoii V. Blight . 175 Pain V. Packard, . 153 Niemcewiez v. Gahn, . . 150 Painter's Estate, . . 445 Nifrblingale v. Hidden, . 733 Painter v. Henderson, 246, 357, 830 Nimmo v. Davis, . 838, 839 Palmer's Appeal, . 485 Nisbet V. Smith, . 135 V. Armstrong, . 919 Nix V. Bradley, . . 769, 770 V. Graham, 1093, 1097 Nixon's Appeal, . 336, 337, 338 V. Scott, . 1106 Nixon V. Bradley, . 748 Palton V. Moore, . . 541 V. Rose, . 733, 746, 748 Paris V. Hulet, . 173, 175 Noble V. Smith, . 1334, 1244 Parish v. Stone, 1233, 1243, 1347, Noel y. Filling, . . 1014 1248, 1349 V. White, . 63, 73 Parkham v. Green, . 171 Norcott V. Gordon, . 566 Parke v. Dwight, . 1054 Norcum v. D'Deuch, . . 383 v. Klauber, . 760 Norris v. Clark, . . 563 Parker v. Ellis, . . 183 V. Johnstone, . 772 v. Foy, . . 497 North American Coal C 0. V. Dyett, V. Marston, 1233, 1343, 1247 740, 763 V. Urie, . . 353 North V. Valk, , . 1198 V. Wells, . 1054 Norton v. Coons, 135, 1 54,160,161, Parkhurst v. Cumminga, . 875 165, 183, 187 v. Van Coi tlan d, 1043, V. Preston, . 1003 1044,1045,1057,1058,1062 V. Soule, . . 143, 183 Parkins v. Thompson, . ?50 V. Young, . 835 Parkinson's Appeal, . . 1160 Norvell v. Johnson, . 493 Parkist v. Alexander, . 73, 263 Norwood V. Norwood, . . .142 Parkman v. Aicardi, . . 1020 Nutbrown v. Thomson 1116, 1117 Paruientier v. Gillespie, . 858, 865 Nutt V. Null, . 554 Parrill v. M'Kinley, . . 1060 Parrott v. Sweetland, , . 491 Parshall's Appeal, . 354 Oberlin v. Fowler, . 346 Parilow V. Lane, . . 136 Obert V. Ol)ert, . . 255, 258 Partridge v. Havens, . 334, 344, 678 Odlin V. Greenleaf, . 180, 185 V. Stocker, . . 763 O'Driscoll V. Koger, . 570 Parvill V. M'Kinley, . . 1060 Ogden V. Ogdtn, . . 954 Pasley v. Martin, . 1105 Ohio Life Ins. Co. v. L eydard, . 173 Patterson' v. Brewster, . 313 V. Jr feeder, 174, 176 T. Pope, . 153, 156 Oil Co. V. Simons, 66, 67 V. Robinson, . 756, 764 O'Kelly v.. Nicholson, . 541 V. Ware, . 1062 Old Colony Eailroad v . Evans, 1094 Patton's Appeal, . . 171 Oldham v. Jones, . . 349 Patton V. Kinsman, . 764 V. Litchfield, . 353 y. M'Clure, . . 1043 Oliver V. Pitt, . 341 V. Thompson, . . 240, 249 Onson V. Cown, . . 353 Payne v. Avery, . . 484 Ontario Bunk v. Root, . 1061 V. Graves, . 1062 Osborn v. Carr, . . 854 v. Powell, . 1233 V. Noble, . 176 Peabody v. Tarbill, . . 334, 341 Osgood V. Franklin, . 825 Peackard v. Wood, . 119 Otis V. Wilcox, . . 880 Peak V. Darwin, . . 150, 151 Oltenhouse v. Burleso n, . . 1045 Peake, Ex parte, . . 488 Outton V. Mitchell, . 493 V. Harden, . 1018 Overholt's Appeal, . 386, 3s9 V. Le Baw, 753, 755, 756, 759 Overton v. Lacy, . 285 Pearsoll v. Chapin, 831, 833, 834 Owen v. Cawley, . 759, 763 Pearson v. Duchham, . . . 184 Owens v. Dickenson, . 7(iO Peaslee v. Breed, . 181 V. Miller, . . 173 Peck v. Fisher, . . 286 Ozly V. Ikelheimer, 741,749,750 V. Ward, . . 753 Peckham v. Barker, 1043, 1044 Peebles v. Reading, 261, 337, 36 i, 363 Packer v. Kane, . . 762 Peifer v. Land is, . . 1055 Packington's case. . 1026 Peillen v. Brooking, . . 770 TABLE OF AMERICAN CASES. Ixiii PAOK FAOI Peiler v. Guilkey, . 1233 Pigon V. French, 180 Pell V. ball, . 929 Pinchaiii v. Collard, 281, 485 Pellou V. Knapp, . 874 PincUney v. Piuckney, 570 929 Peuibertou v. Johnson, . 764 Pingree v. Comstock, . 423 V. Pemberton, 542, 559 Pinkard v. Pinkard, 430 ,421 1046. 1047 Pendehuy v. Walker, . . 167 Pinney v. Fellows, 842. 344. 482 Penfleld r. Tliayer, . 440 Pinnock v. Clough, 263, 337 V. The Public Adm'r, Pintard v. Goodloe, 488 1235, 1237 Pipher v. Lodge, . '. 258 Penley v. Watts, . . 183 Pipkin V. Casey, . . 111 Penman v. Slocum, . 66 Pitt V Petrovy, . , 239 Penn v. Lord Baltimore ) . 674 Pitts V. Snowden, 565 V. Whitehead, 747, 762 Plowman v. Riddle, . 498 Penn'a Co. v. Foster, . . 754 Plumer v. Reed, . 357, 368 Penn'a L. Ins. Co. v. Stokes, . 543 Plummer v. Owen, . 1048 Pennell's Appeal, . 1204 Plumpton v. Fuller, . . 927 Pennington v. Gitting, 429, 431, V. Plumpton , 922 436, 440, 1244, 1246 Poag V. Sandifer, . 1048 Pennock v. Clough, . . 263, 337 Pi>ignard v Vernon, . . 184 Pennsonneau v. Bleakley, . 250, 263 Poillon V. Martin, 7 3, 261, 262 Pepper's Will, . 380, 381 Polk V. Paris, . 42. 44 Perch V. Fries, . . 752 V. Robinson, 111 Perine v. Duun, . . 422 Pollard V. Merrill, 732, 733 Perkins v. Dickerson, . . 772 Polomy V. Keenan, , 954 V. Elliott, 750, 759, 760 Pomeioy v. Manhattan Ins .Co., 764 V. Hays, . . 748 V. Rice, 875 V. Kershaw, . . 136, 141 Pond V. Carpenter, 74 7, 752, 754 V. Swank, . 497 V. Clark, . , 875 Perley v. Batch, . . 835 Ponder v. Carter, , 135 Perry v. Boileau, . 732 Pool y. Williams, , 173 V. Head, . . 334 Pooley V. Hamilton, . . 149 Perryclear v. Jacobs, . 675, 676, 678 Poor V. Charlton, , 1028 Peter v. Beverly, . 1158 The V. Hazleton, 828, !<29 Peterson v. Parker, . 181 Poorman v. Kilgore, . 1051, 1063 Petrie v. Clark, . : . 110, 111 Pope V. Elliott, . , 772 Pettibone v. Griswold, . 873 V. Hay, . 1048 Phelps V. Garrow, . 163 V. Hatch, . , 1249 V. Poud, . . 446 Port Clinton R. R. Co. V. T oledo V. Thompson, . . 176 R. R. Co., 1106, 1107 Phenix v. Church, . 1022 Porter v. Doby, . , 45 Phillbrook v. Delano, 350, 354, v. Mayfield, 350 ,351 , 354, 355, 356, 483 35 5, 357, 359 Phillips V. Berger, . 1098 V. Turner, 380, 381 V. Craniwood, . 856 Pott's Appeal, , 768 V. Cramond, . 288, 341, 343 Pott ut this exception to the rule does not apply where the surviving partner who renews the lease keeps the rep- resentative of the deceased partner in ignorance of the real state of the concern, for he is bound to disclose uberrima fide every fact which may enable the representative to exercise a sound discretion as to the course he ought to pursue : Clements v. Hall, 2 De G. & Jo. 113, 188. [Whether a partner who obtains a conveyance of the reversion of a lease which has been made for partnership purposes, for his own bene- fit, will be regarded as a trustee for the firm, seems to be doubtful, but such a trust will arise if he represents himself to be buying for the common good, and thus obtains a grant which might otherwise have been refused: Anderson v. Lemon, 4 Sandford, 552; 4 Selden, 236. The point arose in Anderson v. Lemon, where Gardiner, J., held the following language in delivering the opinion of the Court : " In a note to Moody v. Matthews, (1 Ves. 185, Sumner's Ed.,) it is said, as a deduction from adjudged cases, that with a possible exception in favor of a bona fide purchaser, it seems to be an universal rule that no one who is in possession of a lease, or a particular interest in a lease, which KEECHV. SANDFOED. 55 lease is affected with any sort of equity in behalf of third persons, can renew the same for his own use only, but such renewal must be con- strued as a graft upon the old stock. In Feather stonhaugh v. Fenwick^ (IT Ves. 298,) it was held that a renewal obtained one month before the expiration of the lease, by two of three partners, for their own benefit, enured to the partnership and must be accounted for as part- nership property. But it has been held in several cases, that during the continuance of the lease, any one, even a trustee of the leasehold interest, may purchase the reversion in fee on his sole account, for although the cestui que trust will be deprived of all claim of renewal, yet it has been thou.ght impossible to consider the purchase of the inheritance as a graft upon leasehold or life interests : (T Ves. 186, note, Sumner's Ed.; 3 Meriv. lOT, 352; 3 Atk. 38.) The learned Judge who delivered the opinion of the Superior Court, was therefore correct in saying that a co-partner was at liberty to make the purchase stated in this case, under circumstances free from deception and fraud, and consequently to retain it." But it was notwithstanding decided, that although the defendant would have been entitled to the benefit of his purchase, if his conduct had been fair and open, j^et, as he had been guilty of misrepresentation to the vendor, and concealment from his co-partners, equity would redress the wrong by raising a trust for their benefit. In Lacey v. Hall, 1 Wright, 360, the court cited and relied upon Featherstonhaugh v. Fenwick, and it was said to follow from that decision, that if a partner purchases the reversion in land which has been leased to the firm, and on which they have made valuable improve- ments, it will be affected with a trust for their benefit. In this instance, however, the defendant had abused the confidence of his co-partners by leading them to believe that the purchase was made on joint account. In like manner, where it appears from written evidence, or from facts and circumstances, that two or more' persons have agreed to purchase land jointly, one of them cannot buy for himself alone : Flagg v. Mann, 2 Sumner 486, 521. The principle applies to a purchase by a partner in the course of the partnership business, or in pursuance of an agreement to that effect, with the other members of the firm, and he will not be allowed to evade it by dissolving the partnership : lb.] If a mortgagee renew a lease, the renewal shall be for the benefit of the mortgagor, paying the mortgagee his charges ; and per Lord Chan- cellor Nottingham, " The mortgagee here doth but graft upon his stock, and it shall be for the mortgagor's benefit:" Rush.worth's Case, Freem. 12 ; Luckin v. Sushworth, Finch, 392 ; S. C, 2 Ch. Rep. 113 ; Barrett v. Whitchot, 2 Ch. Rep. 59 ; nor will the case be altered by the expiration of the lease before renewal: Rakestraiv v. Brewer, 2 P. Wms. 510. See Neshitt v. Treddennick, 1 Ball & B. 29. On the other hand, if a lessee mortgage leaseholds, and afterwards obtain a new 56 PURCHASES BY TKUSTEBS. lease, the new lease will be held a graft on the old one, for the benefit of the mortgagee : Smith v. Chichester^ 1 C. & L. 486. Upon the same principle, if a person entitled to a lease, subject to debts, legacies, or annuities, renews, either in his own name or in the name of a trustee, the incumbrances will remain a charge upon the renewed lease : Seabourne v. Powel, 2 Vern. 11 ; Jackson v. Welsh, L. & G., t. Plunk. 346 ; Winslow v. Tighe, 2 Ball. & B. 1 95 ; Stubbs v. Both, 2 Ball. & B. 548 ; Webb v. Lugar, 2 You. & Coll. Exch. Ca. 24T ; Jones r^,„-, V. Kearney, *1 C. & L. 34; Otter v. Vaux, 6 De G. Mac. & G. ^ ^^^ 638. And a lessee will not be allowed to evade the operation of the rule laid down in the principal case by fraudulently incurring a forfeiture of the lease which he induces the landlord to take advantage of, and afterwards obtains for him a new lease : Hughes v. Howard, 25 Beav. 5*75 ; Stratton v. Murphy, 1 I. R. Eq. 345. If a person, having the right of renewal, sells such right, the money produced by the sale will be affected by the same trusts as the lease- holds, if renewed, would have been. Thus, in Owen v. Williams, Amb. 734, where a tenant for life of a Crown lease applied for a further term, but a powerful opponent having applied for a grant, the tenant for life gave up her pretentions for a sum of money. Lord Apsley, upon the authority of the principal case, held that the monej^ ought to be settled upon the same trusts as the lease. And in Lombard v. Hickson, 13 Ir. Ch. Rep. 98, an execution creditor of the lessee of a share, of renewa- ble leaseholds, of which he had obtained possession by ejectment, and who bought the superior lease, was held bound by a jointure rent cre- ated by the lessee, and of which he had notice. A person acting as agent, or in any similar capacity, for a person having an interest in a lease, .cannot renew for his own benefit. See Edwards v. Leiuis, 3 Atk. 538 ; Oriffin v. Griffin, 1 S. & L. 352 ; Mulvany v. Dillon, 1 Ball & B. 41*7 ; and Mulhallen v. Marum, 3 D. & W. 317, in which case a lease was obtained by a person standing, by delegation, in the place of guardians, and who, at the same time, filled the characters of agent, receiver, and tenant ; it was set aside by Sir Edward Sugden, L. C, upon the equity arising out of those relations and upon public policy. A trustee who has renewed will be directed to assign the lease, free from incumbrances, except it seems, any lease made by him bona fide at the best rent ; {Bowles v. Stewart, 1 S. & L. 230) ; and he must account also for the mesne rents and profits and fines which he may have received ; (Mulvany v. Dillon, I Ball & B. 409 ; Walley v. Walley, 1 Yern. 484 ; Luckin v. Bushworth, Pinch, 392 ; Bleivett v. Millett, 7 Bro. P. C. 367, Toml. ed. ; Baioe v. Chichester, Amb. 715); even although the lease had expired before the bill was filed : Eyre v. Dolphin, 2 Ball & B. 290. But where a tenant for life has renewed, the account will KEECHV. SANDFORD. 57 commence only from his decease : Giddings v. Giddings, 3 Russ. 241. On the other hand, the person who has renewed the lease will be entitled, as in the principal case, to be indemnified against the cove- nants he may have entered into with the lessor ; ( Giddings v. Giddings, 3 Russ. *241) ; and he will also have a lien upon the estate i-^-ro-i for the costs and expenses of renewing the lease, with interest ; (Bawe V. Chichester, Amb. HS, '120 ; Goppin v. Fernyhoiigh, 2 Bro. C. C. 291 ; Lawrence v. Maggs, 1 Eden, 453, and note ; James v. Dean, 11 Ves. 383 ; Kenipton v. Packman, cited Y Ves. lYG) ; and for the expenses of lasting improvements ; {Holt v. Holt, 1 Ch. Ca. 190 ; and see Law- rence V. Maggs, and note ; Mill v. Hill, 8 H. L. Cas. 828, 869) ; even though incurred after the institution of the suit ; ( Walley v. Walley, 1 Yem. 48Y) ; but not for any improvements adopted as a mere matter of taste, or as a matter of personal convenience ; {Mill v. Hill, 3 H. L. Cas. 869) ; at the same time there may be many charges in the nature of waste, and as to deterioration, which must be set off' against any- thing found due in respect of improvements. (J&.) So, also, will a tenant for life have a lien for such proportion of the fine upon renewal as ought to be borne by the remainderman : Lawrence v. Maggs, and note by Eden. As to contribution towards payment of fines upon renewals, see White V. White, 9 Ves. 554 ; Playters v. Abbott, 2 My. & K. 97 ; Earl of Shaftesbury v. Duke of Marlborough, 2 My. & K. Ill , Beeves v. Greswick, 3 You. & Coll. Bxch. Ca. ^15 ; Jones v. Jones, 5 Hare, 440 ; Giddings v. Giddings, 3 Russ. 241, 259. Tudor's Lead. Cas. Real. Prop. *76— 82, 2nd ed. The same remedies which, as we have before seen, may be had against trustee^, executors, and persons with limited interests, renewing leases in their own names, may also be had against volunteers claiming through them ; (Bowles v. Stewart, 1 S. & L. 209 ; Eyre v. Dolphin, 2 Ball & B. 290 ; Bleiuet v. Millett, 1 Bro. P. C. Toml. ed., 36Y) ; and against purchasers from them, with notice express or implied : Walley V. Walley, 1 Vern. 484 ; Eyre v. Dolphin, 2 Ball & B. 290 ; Parker v. Brooke, 9 Ves. 583 ; Stratton v. Murphy, 1 I. R. Eq. 345. In Goppin V. Fernyhough, 2 Bro. C. C. 291, a recital, in a lease assigned to a mort- gagee, of the surrender of a former lease, in which mention was made of the settlement, under which the cestui que trust claimed, was held to be constructive notice. And where a deed by which the lease is settled is registered under the Irish Registry Act (6 Ann. c. 2), a purchaser, although without notice from a person having a limited interest, who has renewed the lease in his own name, will be held to be a trustee for the parties interested un- der the settlement : Hill v. Mill, 12 Ir. Eq. Rep. lOT ; S. C, nom. Mill v. Hill^ 3 H. L. Cas. 828. But the cestui que trust may be bound by acquiescence and lapse of 68 PURCHASES BY TRUSTKES. time. (See Isald v. Fitzgerald, *cited in Owen v. Williams, ^ ^^ Amb. T35, 137 ; Norris v. Le Neve, 3 Atk. 38, 39 ; Jackson v. Welsh, L. & G. Ca. temp. Plunk. 346.) Especially where the property sought to be affected with a trust, is, as in the case of mines, subject to extraordinary contingencies, and is capable of being rendered produc- tive only by a large and uncertain outlay : Glegg v. Edmondson, 8 De G. Mac. & G. 787. A tenant for life, under a settlement of leaseholds, procuring a re- newal to himself, does not take the renewal as an express trustee upon the trusts of the settlement, the Statute of Limitations (3 & 4 Will. 4, e. 27) therefore will run as against other persons claiming under the settlement, In re Dane^s Estate, 5 I. R. Eq. 498. When it is impossible to obtain the renewal of a lease, the tenant for life will, it seems, be entitled to the sum accumulated by the direction of the settlor for that purpose. See Morres v. Hodges, 27 Beav. 625 ; there by a settlement, the trustees were to use their utmost endeavours to renew an ecclesiastical lease upon reasonable terms, and to raise the fines out of the rents or by mortgage. A renewal became impracticable. It was held by Sir John Romilly, with evident reluctance, upon the au- thority of Tardiff v. Robinson, 27 Beav. 629, n a decision of Lord El- don's, — that the fund reserved by the trustees out of the rents for the purpose of renewal belonged absolutely to the tenant for life ; and see In re Money's Trusts, 2 D. & Sm. 94. Where renewable leaseholds are taken by a Railway Company under its compulsory powers, a tenant for life will only be entitled to the interest arising from the purchase-money, although the custom to renew may not have ceased until after the premises were taken by the Railway Company ; at any rate where the primary intention of the settlor of the leaseholds, appears to have been to create a per- pe'^ual estate. Thus, in Be Wood's Estate, 10 L. R. Eq. 572, leaseholds under a Dean and Chapter, renewable by custom, were held \>y trustees upon trust for a tenant for life, with remainder over ; and the trustees were directed, " two years, or sooner, before the time for renewal," to bring a part of the rental into a fund until a sufficient sum was raised for the renewal, " so that the estates may be always kept renewed . . for ever." In June, 1865, and February, 1866, notices to treat for parts of the leaseholds, then having about thirteen, and .five, years re- spectively to run, were given by a Railway Company. At Lady-day, 1866, the Dean and Chapter ceased to renew leases ; and about the same date their property was taken over by the Ecclesiastical Commissioners. _ — The values of the two properties *having been assessed at L -' amounts which, when paid, a;id invested in £3 per cent, stock, gave a diminished income, it was argued that as the renewal had become impossible, all trust for renewal had ceased, and that the property ought to be dealt with as if it were a mere leasehold for a term of years, to KBECHV. SANDFOKD. 59 which the tenant for life was entitled in specie ; and that, therefore, the tenant for life was entitled to have the whole fund treated as converted into an annuity of juration equivalent to the term, and to have each year one year's payment of the annuity. It was, however, held by Sir W. W. James, L. J., that the tenant for life was onlj' entitled to the dividends of the fund arising from the sale of the leaseholds to the Rail- way Company. " I am of opinion," said his lordship, " that I am not in the present case bound by those cases of Morres v. Hodges, (21 Beav. 625), and Tardiff ^.-Robinson, (2T Beav. 629, n.). In those cases the conclusion arrived at by the Court was, that the tenant for life was en- titled in specie to the whole rents and profits, charged only with the payment of such a sum as might be required for the renewal, and as no renewal was practicable, there was nothing by which the charge could be maintained, and no means by which any substituted benefit could be ascertained by the Court to be given to the remainderman. In this case, however, the primary and paramount intention was ' that the es- tates may be always kept renewed, and that the j^ounger children may have an equal benefit of time, and so continue to be provided for, for ever.' . . . The testator intended to create, and was creating as he thought, a perpetual estate, out of which he was carving successive in- terest. . . . The result, in my opinion, of the purchase by the Rail- way Company is, that one property in perpetuity is substituted for another property in perpetuity ; and that as between the tenant for life and the remainderman, I cannot take away any part of the corpus be- longing to the latter, in order to make good the diminished income of the former." Although trustees with power to renew, have power to purchase the reversion in leaseholds, under 23 & 24 Vict. c. 124, the Court will not give its sanction to such purchase, if it will have the efiect of throwing a burthen unduly upon any particular person. See Hayivard v. Pile, 5 L. R. Ch. App. 214. There a testatrix bequeathed leaseholds under a Dean and Chapter, to trustees on trust for a tenant for life, with remain- ders over, and with power to raise money for renewing the leases. The property became vested in the Ecclesiastical Commissioners, with whom the trustees of the will agreed for the purchase of the reversion in part of the leaseholds *in consideration of the surrender of the other p^^. „-, part, and the payment of a sum of money. The estate of the ^ -' testatrix was administered by the Court, and the agreement was made subject to the approval of the Court. It was held by Lord Hatherley, L. C, affirming the decision of Lord Romilly, M. R., that the Court would not approve of the agreement against the wish of the tenant for life, if his income would be considerably reduced by the purchase. See Jones V. Jones, 5 Hare, 440, 460, 462. It is undetermined whether the purchase of the reversion from the lessor by trustees or a tenant for life of a lease comes within the rule 60 PURCHASES BY TRUSTEES. which precludes them from renewing such lease for their own benefit, although such a purchase may be made from a stranger. In Randall v. Bussell, 3 Mer. 190, where a tenant for life of leaseholds held of a col- lege, purchased the reversion in fee from a stranger, to whom the col- lege had sold it ; upon a bill filed by the remaindermen, contending that the situation of the tenant for life gave her an opportunity to make the purchase, and that she ought to be turned into a trustee of the reversion for them. Sir William Grant, M. R., said that no case was mentioned in which this sort of equity had been carried to such a length. The College had aliened the -property to an individual. The benefit attending the tenant right of' renewal with a public body was gone, and a lease at rack-rent was all that was to be expected from the private proprietor. His Honour, therefore, held, that the reversion was not subject to the trusts of the will. With respect to the question, whether the tenant for life could have become a purchaser of the rever- sion, not from a mere stranger, but from the college, his Honour ob- served, that it might be said that she thereby intercepted and cut oflf the chance of future renewals, and consequently made use of her situa- tion to prejudice the interests of those who stood behind her ; and that there might be some sort of equity in their claim to have the reversion considered as a substitution for those interests, although he was not aware of any decision to that effect. See Hardman v. Johnson^ 3 Mer. 341 ; Norris v. Le Neve, 3 Atk. 37 ; Lesley's Case, Freem. 52. Where, however, the executor of a mortgagee purchased the equity of redemption of the mortgaged estate in his own name, with the money due on the mortgage and a small advance beyond it, he was held to be a trustee of the purchased property for the benefit of the testator's estate : Fosbrooke v. Balguy, 1 My. & K. 226. A quasi tenant in tail or leaseholds, being the absolute owner of them, is not bound by the same ^equities as persons having L -' merely limited interests; thus, where a testator devised lease- holds for lives to trustees for A. and the heirs of his body, and if he should die without issue, remainder to B. A. surrendered the old lease, and took a new one to himself and his heirs for three new lives, and died without issue, having devised the leaseholds to his widow for life, remainders over. A bill, filed by B., to have the benefit of the new lease, insisting that the surrender of the old lease and taking the new one, was not sufficient to bar the limitation to him, and that those claiming under A. ought to be held trustees of the new lease, was dis- missed : Blake V. Blake, 1 Cox, 266. Where a stranger obtains a renewal of a lease, or a reversionary lease, the old tenant has no equity against him : Lee v. Lord Vernon, 5 Bro. P. C. 10, Toml. ed. ; Earl of Sandwich v. Earl of Lichfield, Colles, P. C. 104 ; Stokes v. Clarke, CoUes, P. C. 192 ; Neshitt v. Tredennick, 1 Ball. & B. 29 ; Lesley's Case, Freem. 52. The Attor- KEECHV. SANDFORD. 61 ney- General v. Gains, 11 Beav. 63. Nor, it seems, has a lessee any equity against his sub-lessee, who obtains a renewal from the head landlord without consulting him : Maunsell v. O'Brien, 1 Jones, 1*76, Exch. Rep. (Ireland). A lessee, however, obtaining a renewal of a lease at an increased rent, or purchasing the reversion, is somewhat in the position of a partner or fiduciary with respect to a sub-lessee with whom he has en- tered into a toties quoties covenant to renew at a fixed rent or fine, and is bound either to renew upon the old terms or to convey the property to the sub-lessee upon proper terms. In Evans v. Walshe, 2 S. & L. 519, A., the defendant, the lessee of a corporation, underlet to the plaintiff at a certain rent, with a covenant to renew to him at the same rent, as often as the corporation should renew to him. The corporation raised the rent payable by A. Lord Redesdale granted an injunction to re- strain the defendant from proceeding in ejectment, observing, " that he considered the defendant as bound to renew on the old terms, unless he chose to abandon the property, and allow the plaintiff to stand in his place for the renewal which he had obtained, which, as he had not covenanted to renew with the corporation, he might perhaps be at lib- erty to do. But if he thought fit to retain the benefit which he had obtained, he was bound specifically to execute his covenant for re- newal." Upon the same principle, in Postlethwaite v. Levdhivaite, 2 J. & H. 23T, the defendants, lessees for lives from a dean and chapter, without a covenant for perpetual renewal, granted an underlease to the plain- tiff for the same lives, of part of the premises, and covenanted that so often as they renewed *their lease, they would add the same life r^.r,-, to the plaintiff's lease, on the payment of a fixed fine, such new lease to contain such or the like rents, covenants, and provisoes as the former lease. The reversion having become vested in the Ecclesiasti- cal Commissioners, they refused to renew, but offered to sell, and the lessee purchased the reversion. Sir W. Page Wood, Y. C, acting upon the principles laid down by Lord Redesdale in Evans v. Walshe, made the following decree : " The defendants offering to convey the reversion in fee simple of the premises comprised in the plaintiff's lease, in preference to granting a new lease of the premises with a covenant for perpetual renewal and otherwise on the terms of the present lease, declare that the plaintiff is entitled to have such rever- sion conveyed to him on the terms of pajdng the defendants a due proportion of the consideration paid or given by them, and of the ex- penses incurred by them, in purchasing the fee simple of so much of the property comprised in their original lease as they did purchase, re- gard being had to the existing interest of the plaintiff under his lease, and to the extent of the property therein comprised. Then there must 62 PURCHASES BT TKUSTEES. be an inquiry what this interest is worth." See Pilkington v. Gore, 8 Ir. Ch. Rep. 589 ; Trumper v. Trumper, 41 L. J. Ch. (N. S.) 613. A lessee, moreover, cannot, by obtaining a new lease, omitting pro- visions contained in the former lease, and upon the faith of which he induced another person to take a sub-lease, act in contravention of such provisions to the injuiry of the sub-lessee. See Piggott v. Strat- ton, Johns. 341. It is a principle firmly main- tained in the equity jurisprudence of this country, that a trustee is not at liberty to act or contract for his own benefit in regard to the subject of the trust, and that the advantage of all that he does about the trust property shall accrue to the cestui que trust, if the latter desire it: Siaats v. Bergen, 2 0. E. Green, 29Y, 308, 554, 559. An in- dependent interest in a trustee, in the subject of the trust, would, in its very nature, be an interest hos- tile to the cestui que trust ; and that is repugnant to the relation which the trustee has assumed. So far as he acts about the prop- erty for himself, distinctly, he di- vests himself of the character of trustee for another ; and this by his own act he cannot do. The cestui que trust has a claim to his entire services about the sub- ject which has been confided to him ; and equity, therefore, af- fects with a trust all his trans- actions and agreements in respect to it ; at least it does so at the option of the cestui que trust. This claim extends as well to the knowledge, as to the influence and power, which the trustee obtains from his situation : Coffee v. Ruf- fin, 4 Caldwell, 481 ; Gardner v. Ogden, 22 New York, 321 ; and if a person, from being placed in a relation of confidence towards another, or being employed in any fiduciary capacity about prop- erty, acquires peculiar information about its value, or circumstances, or condition, he is disabled from exercising this information for his own benefit, in opposition to him by whose confidence he obtained it : Bingo v. Binns, 10 Peters, 269; Michaud v. Girod, 4 Howard, 503; Noel v. White, 1 Wright, 514; Worm v. Dillon, 21 Missis- sippi, 494. And this is not con-, fined to cases of express and formal trusts ; the rule is applied as far as the principle and morality and policy, upon which it is founded, extend. Wherever a confidence is permitted, a duty is assumed, and a trust is the me- dium by which chancery enforces mere duties in respect to property. Wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him, or interested with him, in any subject of property or busi- ness, he is prohibited from acquir- ing rights in that svibject antago- nistic to the person with whose in- terests he has become associated. If out comes into an interest, by KEECH V. SANDFOED. 60 the permission of another, or ac- cepts an interest with another by the act of a third person, or of the law, as in the case of tenants in common under the same will or descent, an implied obligation arises to sustain the common in- terest into which he has been ad- mitted ; and equity vindicates it in the form of a trust. A fiduciary obligation sufficient to lead to the enforcement of the prohibitory principle considered in Keech v. Sandford, is recognized as resting upon executors and administra- tors, guardians, agents, mortga- gees, tenants for life, joint-tenants and co-parceners, tenants in com- mon coming in under the same purchase or descent, and vendees up to the time of the completion of the conveyance. That the renewal of a lease by a ■ trustee enures to the benefit of the cestui que trust, is universally ad- mitted in this country. "If we go through all the cases," said Chancellor Kent, in JDavoue v. Fanning, 2 Johnson's Chancery, 252, 258, "I doubt whether we shall find the rule and the policy of it, laid down with more clear- ness, strictness and good sense (than in Keech v. Sandford). This decision has never been ques- tioned ; and that a trust results on the renewal of an infant's lease, has since been regarded as a fa- miliar point." The authority of Keech v. Sandford, and the princi- ple established by it, are also acknowledged in M'Clanachan's Heirs v. Henderson's, 2 Marshall's Kentucky, 388, 389 ; Cox's Heirs V. Cox & Talbert, Peck, 443, 450 ; Wallington's Estate, 1 Ashmead, 30*7, 310 ; and per Rogers, J., in Fisk V. Sarber, 6 Watts & Ser- geant, 18, 31, 35. " In chancery," said Duncan, J., in The Case of Heager's Executors, 15 Sergeant & Rawle, 65, 66, " the principle is one never departed from, and is as binding as any axiom of the com- mon law ; that he who takes upon him a trust takes it for the benefit of him for whom he is intrusted, but not to take any advantage for himself. A trustee shall never be permitted to raise in himself an interest opposite to that of his cestui que trust. ... If a trus- tee or executor obtain the renewal of a term in trust, such renewal shall be for the benefit of the trust : Holt V. Holt, 1 Chan. Cas. 191. Nor will the circumstance of the lessor having refused to renew to the cestui que trust, he being an infant, differ the case : Chan. Cas. 61. There cannot well be a stronger proof of the inflexibility of the rule than this : he may de- cline to accept the lease ; but if he does, though the lessor would not grant the benefit to the infant, if his trustee chooses to take it, it enures to the benefit of the infant." " Where an executor or guardian," said Kennedy, J., in Galbraith v. Elder, 8 Watts, 81, 94, 95, "re- news a lease, though with his own money, such renewal shall be deemed to be in trust for the person beneficially interested in the old lease." The same princi- ple, in its application as between mortgagor and mortgagee, was es- tablished in Holdridge v. Gilles- pie, 2 Johnson's Chancerj', 30. 64 PURCHASES BY TRUSTEES. There, the mortgagee of a lease had surrendered up the old lease, and taken a new one in his own name ; and the mortgagor sought relief in equity by a bill in the nature of a bill to redeem. " The plaintiff," said Chancellor Kent, " is entitled to redeem the whole of the premises contained in the lease, and to have the entire ad- vantage of the new lease, on such redemption. The renewed lease .enures for the benefit of the mort- gagor. According to the cases of Manlove v. Bale, and of Bakestraw V. Brewer, (2 Vern. 84 ; 2 P. Wms. 511,) the additional term comes from the same old root, and is subject to the same equity of re- demption, otherwise hardship and oppression might be practised upon the mortgagor. It is analo- gous, in principle, to the case of a trustee holding a lease for the benefit of the cestui que trust. Courts of equity have said, that if he makes use of the influence which his situation enables him to exercise, to get a new lease, he shall, hold it for the benefit of the cestui que trust. (1 Dow. 269 ; 1 Ch. Cas. 191 ; 1 Bro. Ch. Cas. 198.) So, if a guardian takes a renewed lease for lives, the trust follows the actual interest of the infant, and goes to his heir, or executor, as the case may be. (18 Ves. 214.) Indeed, it is a general principle, pervading the cases, that if a mortgagee, executor, trustee, tenant for life, &c., who has a limi- ted interest, gets an advantage by being in possession, '.or behind the back ' of the party interested in the subject, or by some contriv- ance in fraud, he shall not retain the same for his own benefit, but hold it in trust. (Lord Manners, in 1 Ball & Beatty, 46, 47 ; 2 Ball & Beatty, 290, 298.) The doc- trine has been uniform from the decision of Lord Keeper Bridgman, above referred to in 1 Ch. Cas. 191, down to the most recent decisions." The rule was enforced in an analo- gous case, in Huson v. Wallace, 1 Richardson's Equity, 2, 4, T, where an intestate had contracted for the purchase of a tract of land to which a ferry was attached, and his wife becoming administratrix, had obtained after his death a re- charter of the ferry in her own name. " From analogy to the doctrine of renewing leases by trustees or tenants,'' said Harper, C, " I am of opinion that she must be considered a trustee " for the children. He then reviewed the cases from Keech v. Sandford, down ; and added, " It is to be ob- served, that in most of these cases there was no covenant for renewal, so that it was at the option of the lessors to renew or not ; but, as it is said, there is a goodwill in favor of the former tenant, which gives him an interest in the renewal. . . . (The children) had that interest in the renewal of the char- ter, of which the cases speak, and that claim on the goodwill and preference of the legislature, which we know, in point of fact, to be almost always shown to the former grantees, and owners of the ad- joining land ; and was it not plainly against equity that, disregarding this claim, she should procure the entire benefit to herself?" KEECH V. SANDFORD. 65 Upon a similar ground, it is a settled rule in equity, that if a trustee purchases claims or incum- brances against the trust estate, at a discount, the purchase shall enure to the benefit of the interest which it is his duty to protect. In Green v. Winter, 1 Johnson's Chancery, 27, 36, a trustee had bought in, at a discount, a mort- gage on the trust property. " This purchase," said the Chancellor, " ought justly, and upon all sound principles of equitable policy, to enure to the benefit of the trust, and not to the benefit of the trus- tee. A trustee is not permitted to use the information he gains as trustee, by purchasing in for him- self. A court of equity watches the conduct of a trustee with jeal- ousy ; and if he compounds debts or mortgages, or purchases them in, at a discount, he shall not be suffered to turn the speculation to his own advantage." See also Van Home v. Fonda, 5 Id. 388, 409 ; Hawley v. Mancius, 1 Id. If 5, 188 ; Giddings v. Eastman, 5 Paige, 561 ; Steele v. Babcock, 1 Hill's N. Y. 528, 530 ; The case of Heager's Executors, 15 Ser- geant & Rawle, 65 ; Boyd v. Haw- kins, 2 Iredell's Equity, 304, 306 ; Prevost V. Gratz et al., 1 Peters' C. C. 365, 3T3 ; Calvert v. Holland, 9 B. Monroe, 458, 463. The trus- tee, however, is entitled to be reimbursed the amount he has ex- pended, with interest ; Quacken- bush V. Leonard, 9 Paige, 334, 344 ; Mathews & Wife v. Dragaud and others, 3 Dessaussure, 25, 28. The same principle is applied where a trustee buys in an adverse claim VOL, I 5 to the trust estate : the purchase accrues to the benefit of the cestui que trust, who, however, must re- imburse the trustee to the extent of his outlay ; M' Glanachan's Heirs V. Henderson's, 2 Marshall, 388, 889 ; Morrison's Ex'or v. Cald- well, 5 Monroe, 426, 435 ; Kellogg V. Wood, i Paige, 578, 621 ; King v. Cushman, 41 Illinois, 31 ; Brantly V. Ker, 5 Jones, Eq. 352. [The directors of a railway, bank, or other body corporate or joint stock association act in a fiduciary capacity, and are conse- quently disabled from dealing with the interests confided to their care with a view to their own advantage, and any purchase made, or act done in the prosecution of such a design, may be set aside by the stockholders and those claiming under them as creditors ; James v. The Railroad Company, 6 Wal- lace, 752 ; Dreery v. Cross, 7 Id. 299. For a like reason, a director cannot vote as such in favor of a resolution in which he is interested, and if his presence is necessary to a quorum, the resolution will be invalid ; Belts v. Wood, 37 New York, 317- In the case last cited judgment was delivered in the fol- lowing terms : " The bill of the defendant, Dan- iel Wood, was presented, audited and ordered to be paid at a meet- ing of the board of directors of the company, on the 5th day of July, 1859, when but three of the five directors who composed the board were present ; the defendant, Daniel Wood, being one of those present, and his father, William Wood, and John Cornwall, another 66 PURCHASES BY TRUSTEES. kinsman, being the other two. Thi8 board, as thus constituted, had no authority to entertain the bill in question, or to do anything in relation to it. Daniel Wood being the claimant, was disquali- fied from acting, because he could not deal with himself, and without him there was no quorum of the directors, and they had no author- ity to transact business. The re- lation existing between Daniel Wood and the corporation, was that of trustee and cestui que trust. (Bobinson v. Smith, 3 Paige, 322 ; Angell and Ames, 258, 260 ; Cum- herland Coal Company v. Sher- man, 1 Macq. 461 ; Aberdeen Bail- way Company v. Blaikie Bros., 30 Barb. 511.) This being the case, I am disposed on this ground alone, to think that the action of these directors was void." It will make no difference in the application of the rule that the party is acting for himself, if he also stands in a fiduciary relation to others, and should care for their safety as well as his own ; Pen- man V. SlocuTn, 41 New York, 53. Partners are in this category as being at once principals and agents, and each severally author- ized to represent the firm. Hence a partner who sells the property of the firm, or procures it to be sold, and buys it in, will hold it in trust for the partnership. For a like reason a partner will not be allowed to make a profit by selling to the partnership at an advance, unless the transaction is out of the usual course of business of the firm, and it may be said in general, that a man who buys or represents himself to have bought for others, or for an object in which they are jointly interested with him, will not be permitted to dispose of the property to them at a higher rate, nor to a third person without ac- counting to them ; Eecher v. Cos- grove, 4 Eussell, 562 ; Fawcett v. Whitehouse, 1 Russell & Mylne, 132 ; Beck v. Kantarowicz, 3 Kay & Johnson, 230 ; McElhenny v. The Hubert Oil Co., 11 P. P. Smith, 188 ; Simons v. The Vul- can Oil Co., lb. 202. It follows that the promoters of a business or industrial enterprise, or joint stock company, cannot purchase at one price, and charge the property to their associates at another ; The Oil Co. v. Simons ; The Dinsmore Oil Co. v. Bins- more. Accordingly, if a man buys land with a view to the formation of a company or partnership, and invites others to unite with him on that basis, they will be entitled to assume that they are brought in on an equal footing as it re- gards price and all other material particulars, unless the contrary is distinctly stated ; Hecker v. Cos- grove ; Beck v. Kantarowicz ; Foss V. Earbottle, 2 Hare, 401, 489; Bank v. Tyrrell, 5 Jurist, N. S. 527 ; Kent v. The Freehold Land and Brickmaking Co., 4 Law R. Eq. 588. Any prospectus that may be issued should be sufficiently ex- plicit not to mislead, and a want of candor and frankness in the statement of any material fact, is a fraud against which equity will relieve. The New Brunswick v. Canada Bailway Co. and Mugger- idge, 1 Drewry & Smale, 863, KEECH V. SANDFOKD. 67 367 ; Kent v. The Freehold Land and Brickmaking Co., 4 Law R. Eq. 588 ; The Oil Co. v. Simons. But the disability does not attach until the fiduciary relation is estab- lished, or preclude the right to dis- pose of prior acquisitions to the best advantage, and there is no- thing to prevent a proprietor of a mine or patent, from selliag it to a company of which he is to be one, on any terms that he may suggest, and which are acceptable to them. McElhenny v. The Hubert Oil Co., 11 P. F. Smith, 188; The Binsmore Oil Co. v. Dinsmore, 14 Id. 43, 50. The distinction was drawn by Sharswood, J., in The Binsmore Oil Co. v. Binsmore, 14 P. F. Smith, 43, 49, in the fol- lowing terms : " There are two principles appli- cable to all partnerships or asso- ciations for a common purpose of trade or business, which appear to be well settled on reason and authority. The first is, that any man or number of men, who are the owners of any kind of property, real or personal, may form a partnership or association with others, and sell that property to the association at any price which may be agreed upon between them, no matter what it may have originally cost, provided there be no fraudulent misrepresentation made by the vendors to their associates. They are not bound to disclose the profit which they may realize by the transaction. They were in no sense agents or trustees in the original purchase, and it follows, that there is no confidential rela- tion between the parties, which af- fects them with any trust. It is like any other case of vendor and vendee. They deal at arm's length. Their partners are in no better position than strangers. They must exercise their own judgment as to the value of what they buy. As it is succinctly and weU stated in Foss V. Harbottle, 2 Hare, 489, " A party may have a clear right to say, I begin the transaction at this time. I have purchased land, no matter how or from whom, or at what price. I am willing to sell it at a certain price for a given purpose." This priuciple was re- cognised and applied by this court in the recent case of McFlhenny's Administrators v. The Hubert Oil Co., decided May 11th, 1869 (11 P. F. Smith, 188). "It nowhere appears," said the present Chief Justice, " that McElhenny, the purchaser from Hubert, the origi- nal owner, did it as the agent of Messrs. Baird, Boyd & Co. and others, though he bought it to sell again, no doubt ; he had a perfect right, therefore, to deal with them at arm's length, as it seems he did." And again : " If the prop- erty was not purchased by Mc- Elhenny for the use, and as agent for the company, but for his own use, he might sell it at a profit, most assuredly. No subsequent purchasers from his vendees would have any right to call upon him to account for the profits made on his sale." In that case, McElhenny, being the owner of property which had cost him only $4,000, sold it to Baird, Boyd & Co., and others, who associated with him to form 68 PURCHASES BY TRUSTEES. an oil company, for $12,000, and it was decided that the company could not call him in equity to ac- count for the profit he had made. The second principle is, that where persons form such an asso- ciation, or begin or start the pro- ject of one, from that time they do stand in confidential relation to each other, and to all others who may subsequently become members or subscribers, and it is not competent for any of them to purchase property for the purposes of such a company, and then sell it at an advance without a full dis- closure of the facts. They must account to the company for tlie profit, because it legitimately is theirs. It is a familiar principle of the law of partnership, one partner cannot buy and sell to the partnership at a profit ; nor if a partnership is in contemplation merely, can he purchase with a view to a future sale, without ac- counting for the profit. Within the scope of the partnership busi- ness, each associate is the general agent of the others, and he cannot divest himself of that character without their knowledge and con- sent. This is the principle of Hichens v. Gongrove, 4 Russ. 562, Fawcett v. Whitehouse, 1 Russ. & M. 132, and the other cases which have been relied on by the appel- lants. It was recognised in ilfc- Elhemiy's Administrators v. The Hubert Oil Co., just cited; and also in Simons v. The Vulcan Oil Co., decided by this court, May 11th, 1869 (11 P. P. Smith, 202). Both of these cases were compli- cated with evidence of actual mis representations as to tlie original cost of the property to the vendors. In the opinion of the court in the last case, delivered by Thompson, C. J., it is said : " If the defend- ants in fact, acted as the agents of the company in acquiring the prop- erty, tliey could not charge a profit as against their principal. Nor was their position any better if they assumed so to act with- out, precedent authority, if their doings were accepted as the acts of agents by the association or company. If, in order to get up a company, they represented them- selves as having acted for the asso- ciation to be formed, and proposed to sell at the same prices they paid, and their purchases were taken on these representations, and stockholders invested in a re- liance upon them, it would be a fraud on the company, and all those interested, to allow them to retain the large profits paid them by the company in ignorance of the true sums actually advanced." The defendants in that case were subscribers with others, to the stock of a projected oil company, and after the plan had been formed, secured to themselves by contract, the refusal of the property which they afterwards sold to the com- pany at a greatly advanced price."] Joint-tenants and co-parceners stand in such confidential relations in regard to one another's interest, that one of them is not permitted in equity to acquire an interest in the property hostile to that of the other : and, therefore, a purchase, by a joint-tenant or co-parcener, of an incumbrance on the joint KEBCH V. SANDFOED. 69 estate, or an outstanding title to it, is held, at the election of his co- tenants within a reasonable time, to enure to the equal benefit of all the tenants, upon condition that they will contribxite their respec- tive ratios of the consideration actually given ; Lee & Graham v. Fox, &c., 6 Dana, 111, 116. The same equity is considered as sub- sisting between tenants in common claiming under the same ancestor, or through the same will or deed ; Lloyd V. Lynch, 4 Casey, 419 ; Gibson v. Winslow, 10 Wright, 380 ; and was enforced in Van Home V. Fonda, 5 Johnson's Chan- cery, 388, 401, a case of two devi- sees of an imperfect title under a will. " I will not say," observed the Chancellor in that case, " that one tenant in common may not, in any case, purchase in an out- standing title for his exclusive benefit. But when two devisees are in possession, under an imper- fect title, derived from their com- mon ancestor, there would seem naturally and equitably, to arise an obligation between them, re- sulting from their joint claim and community of interests, that one of them should not afiect the claim, to the prejudice of the other. It is like an expense laid out upon a common subject, by one of the owners, in which case all are enti- tled to the common benefit, on bearing a due proportion of the expense. It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstand- ing title, and appropriate the whole subject to himself, and thus under- mine, and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created. Community of interest produces a community of duty, and there is no real difier- ence, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseise and expel his co-tenant. It cannot be tolerated, when applied to a com- mon subject, in which the parties had equal concern, and which created a mutual obligation, to deal candidly and benevolently with each other, and to cause no harm to their j oint interest." This language was cited in Flagg v. Mann, 2 Sumner, 486, 522, and Weaver v. Wible, 1 Casey, 2T0, and said to be equally consonant with authority and principle. The co-tenant, however, upon availing himself of the purchase, becomes subject to an equal contribution to the expense. Van Home v. Fonda, 5 Johnson, Ch., 408. In Ligget V. Bechtol, it is said to have been decided " that two tenants in com- mon, who had heard of an adverse title, and agreed to join in defend- ing against it, or in purchasing, were bound to deal fairly with each other ; and that one of them who purchased the adverse title for a small sum, must hold it in 70 PURCHASES BY TRUSTEES. trust for the other, ujton that other paying his proportion of the pur- chase-money : and the law (said Huston, J.,) is clearly as decided in Van Home v. Fonda and this case ; nay, it goes further ; and wherever two have a joint estate, it raises a duty in each to deal fairly with the other ; and one who purchases an adverse title, will not be allowed to sweep all from his co- tenant ; unless there is some special circumstance ;" Smiley v. Dixon, 1 Penrose & Watts, 439, 441. [The same view was taken in Lloyd V. Lynch, 4 Casey, 419, and the purchase of an outstanding title, by one of several tenants in common, said to enure for the benefit of all ; and in Weaver v. Wible, a widow who came into the possession of land under her de- ceased husband, was held to fall within the operation of a like principle, and to be precluded from buying in an outstanding title to the prejudice of his heirs. (See Galbraith v. Elder, 8 "Watts, 81, 95 ; Morey v. Her rick, 6 Har- ris, 123, 128 ; Myer^s Appeal, 2 Barr, 463, 466 ; Lafferty v. Our- ley, 3 Sneed, 157, 181 ; Burrill v. Bull, 3 Sanford's Ch. 151; Leis- enring v. Black, 5 Watts, 303. In Leisenring v. Black, the Court held, that if an execution be issued by two j ointly, and the land bought in by one of them, for less than the amount of the judgment, he will hold it in trust for both. In like manner one co-tenant cannot defeat the title of another by buy- ing under an execution issued against both ; Gibson v. Winslow, 10 Wright, 380. So the renewal of a lease by one of the lessees will enure to the use of all ; Bur- rill V. Bull.'\ In South Carolina also, it is said to have been held that a tenant in common in possession is a trustee to preserve the estate for the rest ; Ooulding v. Goulding, cited in Huson V. Wallace, 1 Richardson's Equity, 9. But tenants in com- mon, probably, are subject to this mutual obligation, only when their interest accrues under the same in- strument, or act of the parties or of the law, or where they have entered into some engagement or understanding with one another: for persons acquiring unconnected interests in the same subject, by distinct purchases, though it may be under the same title, are prob- ably not bound to any greater pro- tection of one another's interests, than would be required between strangers. See Matthews v. Bliss, 22 Pickering, 48 ; where it was held that tenants in common of a vessel do not stand in such a con- fidential relation that one may not purchase the share of the other, without communicating a circum- stance that would materially af- fect the price. [However, this may be, it seems that one co-tenant will be pre- sumed to have acted for all, un- less he manifested a contrary in- tention by acts suflflciently notor- ious to put the others on their guard ; Baker v. Whiting, 3 Sum- ner, 4T5, 495 ; and there can be no doubt that where a promise or agency is superadded to the obligation arising from commu- nity of title, its performance will KBBCH V. SANDFOKD. 71 be enforced toy equity. Hence a tenant in common who attends a sale made by the State for the non-payment of taxes under a promise to touy for himself and his co-tenant, will not be permitted to appropriate the purchase solely to his own benefit, and will be made a trustee for the share of the co-tenant ; Stewart v. Brown, 2 S. & R. 461. It is established under the re- cent decisions in Pennsylvania, that a purchase by one of several co-tenants in common of the com- mon property at a tax sale, or under an execution issued against all, gives rise to a resulting trust, although he is not acting as their agent, and intends to acquire the land for himself; Gibson v. Wins- low, 10 Wright, 380; Maul v. Bider, 1 P. P. Smith, S11 ; 9 Id. 167.] A tenant for life is bound to the same consideration of the interests of those in remainder and rever- sion, as is required between joint- tenants ; and if he purchases an incumbrance or outstanding title, it becomes in his hands a trust for their benefit; Bowling's Reps. v. Dobyn's Adm'r, 5 Dana, 434, 446 ; Stump ' and others v. Findlay and ethers, 2 Rawle, 168, 1T4. In Dickinson and wife v. Godwise and others, 1 Sandford, 214, 225, it was held that a husband pur- chasing a gore of land which con- trolled the aeeess to stores built upon his wife's land, and which could not toe used separately for any valuatole purpose, must be considered as purchasing in trust for the wife's interest. " As hus- band," said the Asst. V. Chancel- lor, "in the possession of a life estate in her lands, jure mariti, he had a duty to perform, which was incompatible with the purchase of this gore for his own exclusive benefit. He used the means given to hun by his position as husband, and ototained this grant. The general principle of equity which prohitoits a purchase toy parties placed in a situation of trust or confidence with respect to the sub- ject of the purchase, has been steadily and uniformly enforced from the time of Lord Keeper Bridgman in 1610 (Holt v. Holt, 1 Cha. Cas. 190,) to the present day. A vendee of lands, entering be- fore the conveyance is perfected, is affected with the same equity in favor of his vendor ; and if he pur- chases an adverse title he cannot set it up against the vendor, but the vendor is entitled to have it, upon reimbursing the purchaser ; Morgan's Heirs v. Boone's Heirs, 4 Monroe, 291, 298; Harper v. Beno et al., 1 Freeman's Chancery, 323, 333 ; Wood v. Perry, 1 Bar- bour, 115, 134; see 2 Smith's Leading Cases, 145, 1th Am. ed. [A like rule prevails between mortgagor and mortgagee, and neither can do any act to defeat the purpose for which the security was given and received. The pur- chase of an outstanding title by the mortgagor will go to strengthen the security of the mortgagee, and a mortgagee who enters as such, cannot show title in himself, as a ■ reason for holding the premises after the debt has been paid, 72 PURCHASES BY TRUSTEES. although he may 'withdraw, and then re-enter or bring ejectment. The rule which entitles the land- lord to the benefit of acquisitions made by his tenant, from the ad- jacent waste during the term, may, perhaps, be referred to the same principle ; Kingswell v. Wil- lard, 11 Exchequer, 313, as well as the estoppel by which a tenant is precluded from disputing the landlord's title ; 2 Smith's Lead- ing Cases, 149, Tth Am. ed. The principle applies a fortiori as between partners. Obviously a partner ought not to do anything tending to benefit himself at the expense of the other members of the firm in a matter affecting the common interest. If he does, equity will redress the wrong by turning him into a trustee ; Coder V. Ruling, 3 Casey, 84 ; Lacy v. Hall, 1 Wright, 360. In the case last cited, a firm had a leasehold in a tract of land. One of the part- ners bought the reversion and took the deed in his own name. The price was paid out of the assets of the firm, but charged to his account on the books as so much withdrawn from capital. It was held that a constructive trust arose for the partnership. Strong, J., said that the condition of the defendant was less favorable than that of a tenant in common who bought an out- standing title. " He was more than a a tenant in common. A partner in a firm who takes a renewal of a lease to the firm in his own name, holds it for the firm, and that even though the lessor has refused to renew the lease with the old lessees ; Feather stonaugh v. Fenwick, 11 Vesey, 298. See also, notes to Moody V. Matthews, 1 Yesey, 186, Sumner's Ed. Yet the considera- tion for the new lease is the cove- nant of the partner who obtains it. But his- relation to his co-partner forbids him treating for it for his own individual benefit ; and if he does so treat, and obtains a lease in his own name, he holds in trust for the partnership. This is not the case of a result- ing trust growing out of the pay* ment of the purchase money. It is rather a constructive trust which equity declares to arise from the relative situation and conduct of the parties. Hall had the firm's funds, at least their credit, in hands. He was not restricted in its use. Good faith required that he should use those funds rather than his own in the purchase of the McLeod tract ; and if he employed his own, then equity enforces good faith by regarding him as having lent his funds to the firm, and treats him as a trustee. He may recover his advances in account with his co- partner, but he can claim only one moiety of the land ; Lacy v. Sail et al., 1 Wright, 360, 366."] An agent undertaking any bijsi- ness for another, is disabled in^ equity from dealing in the matter of the agency upon his own ac- count or for his own benefit. If an agent employed to procure a lease, or to purchase lands, for another, take a lease or convey- ance in his own name, he will he considered as holding it in trust , for his principal ; Parkist v. Alex- ander, 1 Johnson's Chancery, 394; KBECH V. SANDPORD. 73 Eowell Y. Baker, 4 Id. 118, 120 ; Sweet V. Jacocks, 6 Paige, 355, 359, 364 ; Seacock and others v. Coatesworth and others, 1 Clarke, 84, 86 ; Massie v. Watts, 6 Cranch, 148, lYO ; Ringo et al. v. Binns et al., 10 Peters, 2Y0 ; Rankin v. Porter, T Watts, 38Y ; Church v. Sterling, 16 Connecticut, 389, 400; Segar v. Edwards and Wife, 11 Leigh, 213 ; Wellford et als. v. Chancellor, 5 Grattan, 39 ; Switzer et al. V. Skiles et.al., 3 Gilman, 529 ; Baker v. Whiting, 3 Sumner, 4'I5 ; post, note to Fox v. Mackreth. [An • agent employed to obtain information with a view to the purchase of real or personal prop- erty, cannot buy for himself to the exclusion of his principal ; Wenn V. Dillon, 2T Mississippi, 494. For a stronger reason one who by pro- fessing friendship for another, and promismg to aid him in perfecting his title, ascertains wherein the defect consists, will not be allowed to use this knowledge for his own purposes, by purchasing the legal or outstanding title, and if he does, a trust will arise in favor of the principal ; Noel v. White, 1 Wright, 814. The rule is broad enough to include one who has access to the papers of the principal, or ob- tains a knowledge of his affairs, whUe acting in a subordinate capacity under an agent whom he has employed ; and hence a pur- chase by the clerk of an attorney or broker of the property which has been placed in the hands of his employer for sale, may be set aside although there is no actual fraud ; Poillon v. Martin, 1 Sand- ford Ch. 569 ; Gardner v. Ogden, 22 New York, 32T.] An attorney or counsellor at law, who has been consulted pro- fessionally in regard to a title, cannot afterwards purchase an out- standing adverse title to the land, for himself; his purchase will enure to the benefit of his client ; Oalbraith v. Elder, 8 Watts, 81, 94, 100 ; Clevinger v. Reimar, 3 Watts & Sergeant, 481, 493; Hockenbury v. Carlisle, 5 Id. 348, 350. In like manner, an attorney who buys at a sale under a judg- ment or decree against his client, will hold in trust for him ; Moore V. Brecken, 27 Illinois, 23. [And it has been said that this fidelity of counsel must be forever ob- served, and that equity will look with the same disfavor on the pur- chase of an adverse title after the relation of client and attorney has ceased, as while it continues ; Gal- braith v. Elder ; Henry v. Raiman, 1 Casey, 354, 360.] The cases relating to the inabil- ity of a trustee to be a purchaser of the trust property on his own account, at a sale of it, will be found in the note to Fox v. Mack- reth, post. 74 APPLICATION OP PURCHASE-MONEY. [*59] *ELLIOT V. MERRYMAIT. JULY 1, 1740, AT THE ROLLS. EEPOETED BAKNISTON'S CHANCERY EEPORTS, 78.1 Liability of Purchaser to see to the Application of his l^x^v.- CHAS^-UOT^BY.]^ A purchaser of personalty from an executor will not be held liable to see to the application of the purchase-money, except in cases of fraud. It is a general rule, that, where real estate is devised to trustees, upon trust to sell for payment of debts generally, the purchaser is not bound to see that the money is rightly applied. The same rule ap- plies where real estate is not devised to be sold for the payment of debts, but is only charged with such payment. If real estate is devised upon trust to be snld for the payment of cer- tain debts, mentioning to whom in particular those debts are owing, the purchaser is bound to see that the money is applied for the pay- ment of those debts. Thomas Smith became indebted to several persons by bond, and likewise by simple contract. In three of those bonds Grood- win was bound with him as surety ; and afterwards Goodwin gave his own bond alone to one of the creditors, to whom Smith was bound in a single bond. Smith, being thus indebted, made his will, and, in the beginning of it, says, "my will is, that all my debts be paid ; and I do charge all my lands with the payment thereof" Then came the clause, upon which, together with the other circumstances of the case, the present question principally determines. " Item — I give all my real and personal estate to Goodwin, to hold to him, his heirs, executors, administra- tors, and assigns, chargeable, nevertheless, with the payment of all my debts and legacies." Of this will he made Goodwin his executor. r*fi01 *The testator died in 1724; Goodwin proved the will, L J and in . that same year sold a freehold estate of the testa- tor's to Hunt ; in the year following sold a leasehold estate of the testator's to Wright; and, in 1727, sold another estate of the testator's, consisting of both freehold and leasehold, to Merry- man. In the several deeds by which these estates were conveyed from Goodwin to the purchasers, the will of Smith was recited ; and to one of those deeds Elliot, a creditor of Smith's, was a sub- scribing witness. These lands were sold in the neighbourhood by outcry. At the time of these sales, the creditors, all of them, either lived in the town where Goodwin lived, or within three or four miles of it. During all this time, and till the year 1730, 1 1 S. C, Atk. 4. ELLIOTV. MBKRTMAN. 7o the creditors went on regularly recei'ving their interest, which was at 5^. per cent., of Goodwin. Goodwin was a solvent man till 1732, and then he became a bankrupt. In 1734 the present bill was brought by the creditors of Smith against the purchasers of these lands that have been mentioned against Goodwin, and against the assignees under his commis- sion, in order to have a satisfaction of their debts out of those lands which were sold by Goodwin. Mr. Chute argued on the part of the plaintiffs, and for au- thority cited 2 Vern. 528,' 616, ^ Pagett v. Hoskins, in Precedents in Chancery,^ and the case of Morley v. Webb, determined by the present Chancellor [Lord Hardwick] Mr. Idle, on the same side, cited 2 Vern. 444 ;^ and on the same side Mr. Murray cited the case of Nugent v. Gifford,^ de- termined by the present Chancellor. Mr. Brown argued as counsel for Hunt and "Wright, and for authority cited 2 Cha. Ca. 116,* and the case of Ahbott v. Gibbn,'' Mr. Noel argued on the same side, and cited 1 Vern. 45,' 411,' and Williams, 430.''' Mr. Eoskins argued as counsel for Merryman, and cited 1 Vern. 308." *The Hon. John Vekney. M. R. — His Honor said, his r^f^i-. opinion was that the plaintiffs were not entitled to the re- '- •' lief they sought by the bill. He said it was very true, that it was almost impossible to make a determination in the present case, but that it must fall out unfortunately on the one party or the other. The dispute arising between creditors on the one side, and purchasers on the other, both these sorts of persons are entitled to the favour of this Court ; and in the present case a misfortune must fall upon one of them. On whom it is to fall is the question. And this is a question that must so frequently have happened, that it is extraordinary to find no determination directly in point. The case is this : — Thomas Smith being possessed of a real and personal estate, was indebted to several persons by bond, in three of which bonds Goodwin was bound with him as surety ; and he had contracted likewise some other debts, and being thus in- debted, he makes his will to the following effect. The will be- gins with this introduction: — "My will is. that all my debts be paid ; and I do charge all my lands with the payment thereof. Item. — I give all my real and personal estate to Goodwin, to hold to him, his heirs executors, administrators, and assigns, chargeable, nevertheless, with the paj'ment of my debts and legacies." 'Tis indeed true that these words do not amount to a ' Chadwick v. Doleman. ' Crane v. Drake, ' Prec. Ch. 431. * Hamble v. Bill. * 1 Atk. 463. ^ Culpepper v. Aston. " 1 Eq Ca. Abr. 358. * Newman v. Johnson. ' Clowdsley v. Pelham. '» Freemoult v. Dedire, 1 P. Wms. 430. i' Spalding v. Slialmer. 76 APPLICATION OF PUaOHASE-MONBT. devise of the lands to be sold for the payment of the debts ; and they only import a charge upon them for that purpose. How- ever, this is such a devise as is within the meaning of the proviso of the Statute of Fraudulent Devises/ and does interrupt the de- scent to the heir-at-law. By this will the devisee was made ex- ecutor. ' The testator died in 1724. Goodwin paid interest for the debts at 51. per cent, regularly till 1730. After the testator's death, three sales of this estate were made by Goodwin ; one, of an estate which was entirely freehold ; the other, of an estate leasehold ; and a third, consisting of freehold and leasehold both. The bill in general is brought by the creditors of Smith r*fi91 *^g8''^iist the purchasers, in order to have a payment of '- -' their debts out of the lands of Smith, which were sold to them by Goodwin. With regard to the leasehold estate, the case is so extremely plain, that the sale of that must stand, and that the creditors cannot have a satisfaction out of it, that his Honor said it would be monstrous to call it in question. The excutors are the proper persons that, by law, have a power to dispose ot a testator's per- sonal estate. 'Tis indeed true that personal estate may be clothed with such a particular trust,^ that it is possible the Court in some cases may requii'e a purchaser of it to see the money rightly applied. But unless there is some such particular trust, or & fraud in the case, it is impossible to say but the sale of a per- sonal estate, when made by an executor, must stand ; and that after the sale is made, the creditors cannot break in upon it. His Honor said, he would now consider the other sales that have been made, and would examine those, first, upon the general rules of the Court, and in the next place upon the par- ticular circumstances which this case is attended with. With regard to the first of these matters, the general rule is, that if a trust directs that land should be sold for the payment of debts generally, the purchaser is not bound to see that the money be rightly applied. On the other hand, if the trust directs that lands should be sold for the payment of certain debts, mentioning, in particular, to whom those debts were owing, the purchaser is bound to see that the money be applied for the payment of those debts. The present case, indeed, does not fall within either of these rules, because here lands are not given to be sold for the payment of debts, but are only charged with such payment. However, the ques- tion is, whether that circumstance makes any difference. And his Honor was of opinion that it did not. And if such a distinction was to be made, the consequence would be, that whenever lands are charged with the payment of debts generally, they could never be discharged of that trust without a suit in this r*fi^l *^ourt which would be extremely inconvenient. No in- '- -' stances have been produced to show that in any other respect the '3W. &M. 0. 14. 2 tee Bomiey v. Kidgard, i Bio. C. C. 130 ; 1 Cox, 145. ELLIOT V. MERRYMAN. 77 chargivg lands with the 'payment of debts differs from the directing them to be sold, for such a purpose ; and therefore there is 710 reason that there should be a difference established in this respect. The only objection that seemed to be of weight with regard to this matter is, that where lands are appointed to be sold for the payment of debts generally, the trusts may be said to be performed as soon as those lands are sold ; but where they are only charged with the payment of debts, it may be said that the trust is not per- formed till those debts are discharged. And so far, indeed, is true, that where lands are charged with the payment of annuities those lands will be charged in the hands of the purchaser,' be- cause it was the very purpose of making the lands a fund for that payment, that it should be a constant and subsisting fund ; but where lands are not burdened with such a subsisting charge, the purchaser ought not to be bound to look to the application of the money ; and that seems to be the true distinction. Having thus considered the case under the general rule, his Honor said he would now consider it under the particular cir- cumstances that attend it ; and the particular circumstances are such as are far from strengthening the plaintiffs' case, but rather the contrary. One of those circumstances is the length of time the plaintiffs have lain by, without at all insisting on any charge upon these estates. Goodwin was a solvent uian till his bankruptcy, in 1732. Here have been three purchases of these estates, made at different times — the one in 1727, the other two in 1725 and 1724. The first of them was made by Hunt, the second by Wright, and the third by Merryman. During all these transactions the plain- tiffs do not mention one word of their charge upon this estate ; but, on the contrary, regularly received their interest of Goodwin till the year 1730. It is indeed true, that there is no express proof that the plaintiffs knew of these purchases, but there is reason to imagine *that they did. The purchases were r*g^-| made in the neighbourhood by outcry ; some of the credi- '- -' tors lived in the same town that Goodwin did ; and all of them lived within three or four miles of him ; and Elliot, one of the creditors, was a subscribing witness to one of the purchase- deeds. The want of notice, too, on the part of the purchasers is, a considerable circumstance in their favour. It is indeed true, that they had notice that there were debts chargeable upon this estate ; but it does not appear they knew to whom those debts were owing. Another circumstance is, that Goodwin was a co- obligor in three of these bonds, and to another of the obligees he afterwards gave his bond alone, which may well be considered as a satisfaction for that bond. By this it appears that the creditors greatly relied upon Goodwin for their paymaster ; and tliere is not much reason therefore that they should now be allowed to resort to the testator's estate. ' Not, it seems, if tliere is also a charge of debts. See Page v. Adam, 4 Beav. 78 APPLICATION OF PURCHRSE-MONET. Upon the whole his Honor's opinion was, that the plaintiffs' bill must be dismissed ; and even with costs, as against Wright, there being no manner of pretence for the plaintiffs to come upon that estate, it being all leasehold and sold to Wright by the ex- ecutor, who by law is the proper person entrusted to dispose of the testator's personal estate. However, with regard to the rest of the defendants, his honor said he would only dismiss the bill generally, without costs ; and so he was pleased to decree ac- cordingly. • Elliot V. Merryman is always cited as a leading case, wherever the question arises as to the liability of a purchaser to see to the applica- tion of his purchase-money. See Bonney v. Sidgard, 1 Cox, HI; M'Leod V. Drummond, 17 Ves. 162; Shaw v. Borrer, 1 Keen, 54Y ; and Colyer v. Finch, 5 H. L. Cas. 923 ; where the rules laid down in that ease were approved of and adopted. It will be seen, on perusing the judgment of the Master of the Rolls, that, in determining this question, the rules applicable to sales of real estate and to sales of personal estate are not identical. It will be con- r*fifi1 venient, therefore, to consider these rules as applied *to the two species of property separately. Before doing so it may be useful to refer, in the first instance, to those statutes by which the law upon this subject has been altered or modified. It was enacted by T & 8 Vict. c. 76, s. 10 (taking effect from December 31, 1844), that the bona fide paj^ment to, and the re- ceipt of, any person to whom any money should be payable upon any express or implied trust, or for any limited purpose, should efieetually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary should be expressly declared by the instrument creating the trust or security. This Act has, however, been repealed by the 8 & 9 Vict. c. 106, which takes effect, as to this section of the repealed Act, from October 1st, 1845. With regard to wills executed whilst the Act 7 & 8 Vict, was in force, such wills must be construed as having annexed to the trusts the incidents resulting from the then existing state of the law, and that the incidents of the trusts, as so defined, were not altered by the change in the law. 3 Dav. Conv. by Waley, 164. By 22 & 23 Vict. c. 35 (Property and Trustees Relief Amendment Act), it is enacted that " The bona fide payment to, and the receipt of any person to whom any purchase or mortgage money shall be paj-able upon any express or implied trust, shall effectually discharge the person paying the same from seeing to the application, or being answerable for the misapplication thereof, unless the contrary shall be expressly declared by the instrument creating the trust or security " (sect. 23). The ope- ration of this clause would seem to extend to trusts created before it ELLIOT V. MERRTMAN. 79 was passed, the future tense used being applicable to the payment of the trustee, not to the creation of the trust. See Bennett v. Lytton, 2 J. & H. 158 ; Dodson v. Sammell, 8 Jur. (N. S.) 584, on a rehearing ; and 2 David. 986, 3rd ed. ; but see 2 Dart, 546, and Lewin on Trusts, 332, 5th ed., where it is considered not to be retrospective. It will be observed that the 23rd section applies only to payments made by or to purchasers and mortgagees. A more comprehensive power is given by 28 & 24 Vict. c. 145 (Lord Cransworth's Act), which enacts, that " the receipts in writing of any trustees or trustee, for any money payable to them or him, by reason or in the exercise of any trusts or powers reposed or vested in them or him, shall be sufficient discharges for the money therein expressed to be received, and shall effectually exonerate the persons paying such money from seeing to the application thereof, or from being answerable for any *loss or p-^ofi-i misapplication thereof " (sect. 29). '- -^ A subsequent section, however, enacts, that " the provisions con- tained in this' Act shall, except as hereinbefore otherwise provided, ex- tend only to persons entitled or acting imder a deed, wUl, codicil, or other instrument executed after the passing of this act (28th August, 1860), or under a will or codicil confirmed or revived by a codicil exe- cuted after that date (sect 36). In this note it is proposed to consider the cases where these Acts have no application. First as to Purchasers of Heal Estate.] It is clear that trustees in whom real property is vested, upon trust for sale, can at law give a valid discharge for the purchase-money, because they are at law the owners. In equity, however, the persons amongst whom the produce of the sale is to be distributed are considered the owners ; and Courts of equity have therefore held that a purchaser must obtain a discharge from them unless the power of giving receipts is either expressly or by implication given to the trustees. If no such discharge is given, and the trustees have no power to give receipts, the estate upon a misappli- cation of the purchase-money, will remain chargeable in the hands of the purchaser. Where a power of giving receipts is in expressed terms conferred upon trustees, the purchaser will not, in cases free from fraud and col- lusion, be bound to see to the application of the purchase-money. Where, however, no such power is in express terms given, much diffi- culty arises in ascertaining the liability of the purchaser, which de- pends upon the question whether a power of giving receipts can be implied. One of the rules laid down in the principal case, and which is inva- riably followed, is, that, if the trust directs lands to be sold for pay- ment of certain debts, mentioning in particular to whom, those debts are owing, the purchaser is bound to see that the money is applied for the 80 APPLICATION OF P U R C H A S E - M NE T . payment of those debts. See Bunch v. Kent, 1 Vern. 261 ; Culpepper V. Aston, 2 Ch. Ca. 223 ; Cotterell v. Mampson, 2 Vern. 5 ; Lloyd v. Baldwin, 1 Ves. lYS ; Ithell v. Beane, 1 Ves..215; Doranv. Wiltshire, 3 Swanst. "lOl ; Smith v. Guyon, 1 Bro. C. C. 186 ; Rogers v. Skilli- corne, Amb. 189 ; Binlcs v. Bokehy, 2 Madd. 238. The same rule is ap- plicable also where there is a trust for ijayment of legacies or annuities, ■which, from their nature must be considered as specified or scheduled debts : Johnson v. Kennett, 3 My. & K. 630 ; Horn v. Horn, 2 S. & S. 448. In cases coming within this rule, as the trusts are of a limited and definite nature, and such as a purchaser might without inconvenience P^„H-| see properly performed, *a power to give receipts cannot he implied. Another rule laid down in the principal case is, " that, if a trust directs the land to he sold for the payment of debts generally, the pur- chaser is not hound to see that the money he rightly applied ;" and it- was, for the first time, decided, that it makes no difference whether lands are given to be sold for the payment of debts or are only charged with such payment. The principle upon which this rule proceeds appears to be this : that, as it cannot be presumed that the settlor or testator could expect a trust of so general and unlimited a nature to be undertaken by a pur- chaser, it is implied that it was intended that the purchaser should be exempt from the necessity of seeing to the application of the purchase- money : Williamson v. Curtis, 8 Bro. C. C. 96 ; Smith v. Guyon, 1 Bro. C. C. 186, and Mr. Belt's note; Balfour v. Welland, 16 Ves. 151; Shaw V. Borrer, 1 Kee. 559 ; Hardwicke v. Mynd, 1 Anst. 109 ; Barker V. Duke of Devon, 3 Mer. 310 ; Rohinson v. Lowater, IT Beav. 592, 5 De G. Mac. & G. 272; Dundas v. Blake, 11 Ir. Eq. Rep. 138, 156; Dowling v. Hudson, IT Beav. 248; Storry v. Walsh, 18 Beav. 559; Glynn v. Locke, 3 Dru. & W. 11, 22. So, also, where there is a trust or charge for the general payment of debts, as well as for the payment of legacies or annuities, the purchaser will not be obliged to see to the application of the purchase-money ; for, as Lord Thurlow observed, in Jebh v. Abbott (cited by Mr. Butler in his note on Co. Litt. 290, b), he cannot be expected to see to the dis- charge of legacies, which cannot be paid till after the debts. In Bey- non V. Gollins (cited also by Mr. Butler in the same note), the testator had charged his estate with the payment of his debts generally, and with a legacy of £800 for his daughter for life, and after her death for her children. The trustee had joined in a convej-ance of part of tlie estate to a purchaser, and permitted the £800 to come into the hands of the daughter's husband, and it was wasted. The bill was brought by the wife and children, to have the legacy made good by the pur- chasers of the estate, and against the trustee. It was dismissed against ELLIOT V. MEREYMAN. the purchasers. Upon the hearing for further directions, it was pressed by Mr. Ambler, that the trustee should pay the costs of the purchasers. But Lord Thurlow refused this, sajdng that, as there was a general charge of debts, the purchasers were not liable to see to the application of the purchase-money in paj^ment of the £800, and that, if the plaintiff thought fit to make unnecessary parties, the trustees ought not to pay the costs of such parties, but that they must receive them from the plaintiff. See also Sogers r.,*Skillicorne, Amh. 188; Walker V. Flavistead, 2 Ld. Ken., 2nd part, 5*J ; Bowling v. Hudson, XT'- -' BeaV. 248. In Page v. Adam, 4 Beav. 269, where a testator gave his real and per- sonal estate to A., subject to the payment of his debts and certain annuities, it was argued, upon the authority of a dictum in the princi- pal case, that annuity legacies charged upon land were different from other legacies, inasmuch as it was intended that they should continue a charge upon the land. However, Lord Langdale, M. R., held that A. could make good title to the real estate without the concurrence of the annuitants, and that a purchaser from A. was not bound to see to the application of the purchase-money. " When," observes his Lord- ship, " an annuity is charged on land, and there is no devise for the payment of debts, and no general charge of debts, it must be deemed that the land was intended to be a constant and subsisting security for the payment of the annuity. But in the case of Elliot v. Merryman, where an expression to that effect is used, it was not considered, and the case did not require it to be considered, whether, in a case in which both debts and annuities were charged, the lands would be charged with the annuities in the hands of a purchaser from the person whose duty it was to sell for payment of debts ; and the opinion of Lord Bldon, as stated in the note to Jenkins v. Hiles, 6 Ves. 654, n., is, ' that where a man by deed or will charges or orders an estate to be sold for pay- ment of debts generally, and then makes specific dispositions, the pur- chaser is not bound to see to the application of the purchase-money. It is just the same as if the specific bequests were out of the will.' See- ing no reason to differ from this opinion, and conceiving that an annuity legacy charged on the estate is, in the sense here used, a specific disposition, subject to the payment of debts, I do not think that the rule ought to be departed from by reason of the nature of the legacy. The reason on which the rule is founded operates precisely in the same manner, whether the legacies are of annuities, or of sums of money : and it would occasion very great inconvenience, if no sale of estates for payment of debts charged thereon could take place with- out the authority of a Court of equity, if the author of the charge for payment of debts had also charged the estate with the payment of legacies in the form of annuities. There are one or two cases {Johnson v. Kennett, 3 Mj'. & K. 264 ; Eland v. Eland, 1 Beav. 235), VOL. J. — 6 82 APPLICATION OF PURCHASE-MONET. in which legacies of annuities have not been distinguished from other legacies ; but, as the point was not raised in those cases, I think they are not to be relied on as authorities on the present occasion. But it appears *to me that, on principle, and for this purpose, there is L -'no substantial difference between the two kinds of legacy. The charge of debts is general, the amount is indefinite, and may exceed the whole value of the estate. It is the first duty of the executor, and of the devisee of the estate which is subject to the charge, to pay the debts ; and for that purpose he is entitled to sell : if he sells, some- thing or nothing may be left to secure payment of the annuities. The purchaser seems to have nothing to do with this ; he cannot know or ascertain the amount of debts, and cannot, if he would, protect the annuitant. His title is derived under an authority or right to sell for payment of debts — a purpose which is paramount to the payment of annuities : and in respect of debts he is not bound to inquire." See Johnson v. Kennett, 3 My. & K. 624 ; Eland v. Eland, 1 Beav. 235 ; S. C, i My. & Cr. 420. And where there is a general charge of debts, it is immaterial that a particular debt is mentioned: Robinson v. Lowater, It Beav. 592, 5 De G. Mac. & G. 212. Upon the same principle, in a recent case, where upon a dissolution of partnership the retiring partner by deed agreed to assign the part- nership stock and effects to the partner continuing in the business, who covenanted to pay the debts and indemnify the retiring partner against them, it was held, by Sir John Romilly, M. R., that although the latter and his executors were entitled to pursue and specifically to apply towards the payment of the debts of the partnership any portion of the partnership property in the possession of the former, yet, as the case could not be put higher than one of an express trust to sell the property and apply the proceeds in payment of the debts of the part- nership, they would not be entitled to do so while in the possession of a purchaser, even with notice of the deed, for he would not be bound to see to the application of the purchase-money. In re Langmead's Trusts, 20 Beav. 20, 1 De G. Mac. & G. 353. See Jones v. Williams, 24 Beav. 41. Where there is a trust or charge for payments of debts generally and legacies, a purchaser, even after the debts have been paid, will not be liable to see to the application of the purchase-money in payment of the legacies : Johnson v. Kennett, 3 My. & K. 624 ; in this case the tes- tator, subject to his debts and legacies, gave all his real and personal estate to his son absolutely, and the son thus became trustee for pay- ment of debts and legacies, but, subject to the charge, he was owner. The estate was then settled by the son, who afterwards sold it : Lord Lyndhurst, in reversing the decision of Sir L. Shadwell, V.-C, observed, ELLIOT V. MERRYMAN. 83 that it was said that *the debts having been paid, and paid out of the personal estate, and nothing remaining but the legacies, '- -■ the case fell ■within the general rule applicable to cases where legacies alone were charged upon the real estate. He found no authority for such a proposition ; the rule applied to the state of things at the death of the testator ; and if the debts were afterwards paid, and the legacies alone left as a charge, that circumstances did not vary the general rule. In Eland v. Eland, 4 My. & Cr. 429, Lord Cottenham, speaking of the rule, as laid down by Lord Lyndhurst, says, " I entirely concur in that opinion, otherwise the mortgagee must in every case, in which there is a charge of legacies, ascertain whether the debts have been paid or not." See also Page v. Adam, 4 Beav. 269 ; and Forbes v. Peacock, 1 Ph. YIY ; in which case the testator charged his real estate with the payment of his debts, and directed it to be sold (but without saying by whom) upon the death of his wife, who was tenant for life, if not sooner disposed of, and the proceeds, with the residue of his personal estate, to be divided among certain of his relations. The executors being thus empowered to sell the real estate, the surviving executor entered into a contract for that purpose with the defendant. Soon after the death of the widow (twenty-five years having elapsed since the testator's death), the defendant, by his solicitor, inquired whether there were any debts due from the estate which remained unsatisfied ; and, if not, whether the cestuis que trust would give authority to sell. To this question no answer was returned. Sir L. Shadwell, V.-C, was of opinion that this under the circumstances, amounted to notice to the purchaser that the debts were paid, and that he was therefore bound to see that the pur- chase-money was properly applied. See 12 Sim. 528. It followed, that the concurrence of the cestuis que trust was necessary to enable the purchaser to make a good title. Lord Lyndhurst reversed the decision of the Vice-Chancellor. " The estate," said his Lordship, " being charged in the first instance with the payment of debts, the defendant was not bound, according to the general rule, to see to the application of the purchase-money. If, indeed, he had notice that the vendor intended to commit a breach of trust, and was selling the estate for that purpose, he would, by purchasing under such circumstances, be concurring in the breach of trust, and thereby become responsible : Watkins v. Cheek, 2 S. &. S. 599 ; Balfour v. Wetland, 16 Ves. 151 ; Eland v. Eland, 4 My. & Cr. 420. But assuming that the facts relied upon in this case amount to notice that the debts had been paid, yet, as the executor had authority to *sell, not only for the pay- ment of debts, but also for the purpose of distribution among L '^J the residuary legatees, this would not afford any inference that the . executor was committing a breach of trust in selling the estate, or that he was not performing what his duty required. The case, then, comes to this : if authority is given to sell for the payment of debts and lega- 84 APPLICATION OF PURCHASE-MONEY. cies, and the purchaser knows that the debts are paid, is he bound to see to the application of the purchase-money ? I apprehend not. In the case of Johnson v. Xennett, where it was contended that the rule did not apply, because the debts had been paid before the sale took place, I held that the ride had reference to the death of the testator ; and, therefore, that even supposing the debts were paid before the sale took place, and that the legacies alone remained as a charge, that cir- cumstance would not vai'y the general rule." In a note by the learned reporter appended to Forbes v. Peacock, he says, " If notwithstanding this decision, it should still be inferred from the terms of the dictum in Johnson v. Kennett, that the rule would not apply to a case in which it should happen that tliere were no debts due at the testator's death, and that the purchaser knew it, I have the authority of Lord Lyndhurst for stating that he did not intend, on that occasion, to lay down any rule which should govern such a case ; and that the guarded and somewhat qualified terms in which the dictum is referred to and adopted in this case, were used for the express pur- pose of excluding that inference." See 1 Ph. 122, n. Lord St. Leonards, however, in Stroughill v. Anstey, 1 De G. Mac. & G. 635, 654 (after commenting upon Watkins v. Cheek, 2 S. & S. 199 ; Johnson v. Kennett, 6 Sim. 384, 3 My. & K. 624 ; Page v. Adams, 4 Beav. 269 ; and Forbes v. Peacock, 11 Sim. 152, 1 Ph. Ill, 121), with reference to what fell from Lord Lyndhurst in Johnson v. Kennett and Forbes v. Peacock, and the note of the reporter, makes the following useful observatioBS : "I can- not think that, a satisfactory settlement of this important point. The difference is this : — Lord Lyndhurst represents the Vice-Chancellor as saying that if there be a general charge of debts and legacies, the pur- chaser is absolved from seeing to the payment of the legacies on account of the charge of debts, but if the charge of debts has been satisfied, and the purchaser knows it has been satisfied, he is then in tlie same situation as if there was only an original charge of legacies, and he is bound to see to the application of the purchase-money ; but to this Lord Lyndhurst answers, that the rule is different, and that if there is a general charge of debts, the case must be taken as it stood at l-^Kn-i the *death of the testator, and if there were debts then, althoBgh they were afterwards satisfied, the purchaser is not liable. Tlieu he says, as I understand bj' the note, that he did not mean to decide that if there were no debts at the death of the testator, the purchaser was not bound. I cannot, however, follow that distinction. The case must stand upon one of two grounds : either that there are no debts within the knowledge of the purchaser (and then it is indifferent whether there were no debts at the death of the testator or no debts at the time of the purchase) or (which is more satisfactory and open to no ambiguity), on the ground that when a testator by his will charges his estate with debts and legacies, he shows that he means to entrust his trustees with ELLIOT V.MERRYMAN. 85 the power of receiving the money, anticipating that there will be debts, and thus providing for the payment of them. It is by implication a declaration by the testator that he intends to entrust the trustees with the receipt and application of the money, and not to throw any obligation at all upon the purchaser or mortgagee. That intention does not cease because there are no debts ; it remains just as much if there are no debts, as if there are debts, because the power arises from the circum- stance that the debts are provided for, there being in the very creation of the trust a clear indication amounting to a declaration by the testa- tor that he means, and the nature of the trust shows that he means, that the trustees are alone to receive the money and apply it. In that way all the cases are reconcilable, and all stand upon one footing, viz., that if a trust be created for the payment of debts and legacies, the pur- chaser or mortgagee shall in no case be bound to see to the application of the money raised. This would be a consistent rule, on which every- body would be able to act, authorised, too, by the words of the testa- tor, and drawing none of those fine distinctions which embarrass Courts and counsel, and lead to litigation ; and it is one to which I shall adhere as long as I sit in this Court." 1 De Gr. Mac. & G. 652. With reference to the ground upon which Lord Lyndhurst decided the case of Johnson v. Kennett, Lord St. Leonards said that it was not altogether satisfactory. " The son," said his Lordship, " being abso- lute owner of the estate, subject to the debts and legacies, was at liberty to settle it to uses for himself just as he thought proper, and when he sold he sold as owner as well as trustee, and a sale was no breach of trust : it was a sale by him in his proper character, but still subject in equity to the payment of the debts and legacies. He stood in the same situation as an heir-at-law, who, being liable to the tes- tator's* debts, has power to dispose of the estate by sale, if he [-:|sijo-| thinks proper, but is bound to apply the money that he receives from the sale in payment and satisfaction of the debts, and this Court will compel him to do so, and will not allow him to divert the money to other purposes." See Stroughill v. Anstey, 1 De G. Mac. & G. 650. In Horn v. Rom, 2 S. & S. 448, where a trader devised his estates, subject to the payment of legacies, it was contended, that as the real estate of a trader was by 4Y Geo. 3, c. 1i [repealed and re-enacted by 1 Will. 4, c. 47], subject to debts generally, the purchaser was dis- charged from the obligation to see that his money was applied in pay- ment of the legacies, as he would have been if the estate had been charged by the testator with payment of his debts. However Sir J. Leach, V. C, held, that the statute made no difference in this respect. The principle of this decision applies to 3 & 4 Will. 4, c. 104, which makes the real estates of all persons who die after the 29th of August, 1833, liable to simple contract debts. See Shawv. Borrer, 1 Kee. 566, Sit i Ball V. Harris, 4 My. & Cr. 268 ; Jones v. Noyes, 4 Jur. N. S. 1033. 86 APPLICATION OF PURCEASE-MONBT, Although there is no trust for the general payment of debts, it will he implied that it was the intention of the settlor or testator to confer upon the trustees a power to give receipts, where they are directed to sell at a time when the persons amongst whom they are to distribute the proceeds of the sale are either not ascertainable or not of age : thus, in Balfour v. Welland, 16 Ves. 151, where a general assignment for the benefit of certain scheduled creditors, and all other creditors executing the deed, was made to B. and F., upon trust as soon as con- veniently might be, to sell the assigned property, and with all conve- nient speed to make such dividends out of the proceeds among the creditors as therein mentioned ; and the deed contained a provision limiting the time for creditors to execute the deed — six months for creditors in India, and eighteen months for those in Europe, unless they were disabled by minority, in which cases the same periods were to be allowed respectively after the disability had ceased — upon an objection being taken by a purchaser from the trustees to the title of a leasehold house, on the ground that he was bound to see to the application of the money in satisfaction of the scheduled creditors and others coming within a limited time after the date of the deed, Sir William Grant, M. R., overruled the objection, upon the ground that the deed clearly con- ferred an immediate power of sale for a purpose that could not be im- mediately defined, viz., to pay debts which could not be ascertained until r^lil tt/'^^w^s and distant period. *" It is impossible," observed his Honor, " to contend, that the trustees might not have sold the whole property at any time they thought fit after the execution of the deed ; and yet it could not be ascertained until the end of eighteen months who were the persons among whom the produce of the sale was to be distributed. If the sale might take place at a time when the distribution could not possibly be made, it must have been intended that the trustees should of themselves be able to give a discharge for the produce, for the money could not be paid to any other person than the trustees. It is not material, that the objects of the trust may have been actually ascertained before the sale. The deed must receive its construction as from the moment of its execution. According to the frame of the deed, the purchasers, were or were not liable to see to the application of the money ; and their liability cannot depend upon any subsequent event." See also Groom v. Booth, 1 Drew. 548. So, likewise, in Sowarsby v. Lacy, i Madd. 142, where A. devised certain lands to his children, the same to be sold when the executors and trustees of his will should see proper, and the purchase-money to be equally and severally divided amongst his children, some of whom were then infants. Sir J. Leach said, " It is plain the testator intended that the trustees should have an immediate power of sale. Some of the children were infants, and not capable of signing receipts. I must, therefore, infer, that the testator meant to give to the trustees the power ELLIOT V. MERRYMAN. 87 to sign receipts, being an authority necessary for the execution of his declared purpose." See also Lavender v. Stanton, 6 Madd. 46 ; Breedon v. Breedon, 1 Russ. & My. 413 ; Keon v. Magawly, 1 D. & W. 401. If, however, an estate is charged with a sum of money payable to an infant on his attaining his majority, the purchaser will be bound to see the money duly paid: Dichenaon v. Dickenson, 3 Bro. C. C. 19. Where money to arise from a sale is not merely to be paid to certain persons, but is to be applied by the trustees upon trusts requiring care and discretion, the presumption arises that the settlor intended to con- fide the execution of the trust to the trustees solelj^, and the purchaser will not be bound to see to the application of the purchase-money. Thus, in Doran v. Wiltshire, 3 Swanst. 699, the trustees were to receive the purchase-money, and to lay it out in lands to the uses of the set- tlement, and till that was done to invest it in the Government funds. Scott, Solicitor-General, urged that no good title could be made, because there was no clause in the settlement making the receipt of the trustees a good discharge to *the purchaser. But Lord Thurlow said, r^tjr-i " As to the power which the trustees have of giving a discharge, it is true, that, when land is to be sold, and a particular debt is to be paid with it, the purchaser is bound to see to the application of the pur- chase money. But in cases where the application is to a payment of debts generally, or to a general laying out of the money, he knew of no case which lays down, or any reasoning in any case ^rhich goes the length of saying that a purchaser is so bound ; and, therefore, he con- ceived that the receipt of the trustees would be a good discharge in this case." See also Balfour v. Wetland, 16 Yes. 151 ; Tait v. Lathbury, 35 Beav. 112. An authority given by a testator to trustees to lay out and invest money upon good securitj' is an authority to do all acts essential to that trust, and necessarily, therefore, to give sufficient discharges to borrowers of that money. Wood v. Sarman, 5 Madd. 368. Upon the same principle, where the trusts of a term were to raise a sum of money, but there was no express authoritj'^ to give a receipt •for such sum, it was implied by the Court, from authority having been given to invest the money, and vary the investment. For " it is not reasonable," as observed by Sir J. Parker, Y. C, to suppose that the testator, giving the trustees authority to change the investments, and to convert them from time to time, had denied to them authority to re- ceive the money." Locke v. Lomas, 5 De G. & Sm. 326, 329. See Pell v.- De Winton, 2 De G. & J. 13. Where, however, a testator gives a person like powers of sale and exchange as are contained in the will of another person, in which there are also powers to give receipts, the Court will not hold that such per- so APPLICATION OF PURCHASE-MONEY. son has by implication a power to give receipts : Cox v. Cox, 1 K. & J. 251. Where there is a charge for payment of debts generally, or a charge followed by specific dispositions of real estate, the purchaser is not bound to see to the application of his purchase-money ; for, as before observed, the charge is equivalent to a trust, and the same efiect will' be given to it by a court of equity, as if a direct devise had been made to trustees for payment of debts. See Walker v. Smallwood, Arab. 6Y6 ; Jenkins v. Hiles, 6 Ves. 654, note ; Bailey v. Ekins, 1 Ves. 323; Bolton V. Hewen, 6 Madd. 9. In Shaw v. Borrer, 1 Kee. 559, a testa- tor, after commencing his will with words amounting to a charge of his real estate with payment of his debts, devised an advowson to trus- tees, upon trust to present his youngest son to the living when vacant, and subject thereto, in trust to sell and apply the produce of the sale r^H(.-i for the special purposes therein mentioned ; *and he devised his residuary real estate, upon certain trusts, to other trustees, and appointed three executors (who proved his will), one of whom was his youngest son, and another, one of the trustees of the advowson. The personal estate being insufficient for the payment of debts, the trus- tees of the advowson, one of whom was an executor, at the instance of the other executors, contracted to sell the advowson, before any vacancy had occurred in the living. In a suit for specific performance by the plaintifis, the trustees of the advowson, and the executors, against the purchaser, it was held by Lord Langdale, M. E.., that, the charge being in effect a devise of the real estate in trust for the payment of debts, a good title could be made by the plaintiffs, without the institution of a suit to ascertain the deficiency of the personal estate, and that the purchaser was not bound either to inquire whether other suflfieient property ought first to be applied in payment of debts, or to see to the application of the purchase-money. " In discussing an authority,'' observed his Lordship, " cited in Jenkins v. Riles, Lord Eldon is re- ported to have said, that if a man by deed or will charges or orders an estate to be sold for payment of his debts, and then makes specific dispositions, the purchaser is not bound to see to the application ; it is just the same as if the specific bequests were out of the will. It seems, therefore, clear that a charge of this nature has been and ought to be treated as a trust, which gives the creditors a priority over the special purposes of the devise ; and no doubt is raised but that, on the apph- cation of the creditors, the Court would, in a suit to which the execu- tors were parties, compel the trustees for special purposes to raise the money requisite for payment of the debts. If so, is there any good reason to doubt, but that the trustees and executors may themselves do that which the Court would compel them to do on the application of the creditors ? Though the advowson is devised to trustees for special purposes, the testator has, in the first instance, charged all his ELLIOT V. MERRYMAN. 89 estate -with pajment of his debts. The charge affects the equitable, but not the legal estate ; and, upon the coustruetion, the trusts of the will affect this estate, first, in common with the testator's other prop- erty for the payment of debts, and next, separately, for the special purposes mentioned in his will." In Ball v. Harris, 4 My. & Cr. 264, Lord Cottenham held, that a charge by will of real estates with the payment of debts, generally, authorised a trustee, who was also execu- tor, to whom, after imposing that charge, the testator had devised the estate, upon trusts for other persons, to make a mortgage (being a con- ditional sale) of lands purchased utider a power and convej'ed to him upon the trusts of the *will, and exempted the mortgagee from r^jtij^-] liability to see to the application of the mortgage money. " The real question," observed his Lordship, " is, whether the decision in Shaw V. Borrer is right. I have carefully considered the judgment of the Master of the Rolls upon this point, and I entirely concur with him upon it ; the point, indeed, has been long established. It arose directlj* in Elliot V. Merryman, and, as there laid down, has been recognised in the several cases referred to by the Master of the Rolls ; to which may be added the opinion of Lord Eldon in Bailey v. Ekins, and Bolton V. Eicen ; for, although the point in some of those cases was, whether the purchaser was bound to see to the application of purchase- money, the decision that he was not assumes that the sale was author- ised by the charge in the will of the debts upon the estate ; that is, that the charge of the debts upon the estate was equivalent to a trust to sell for paj'ment of them." See also Johnson v. Kennett, 3 Mj'. & K. 624 ; Eland v. Eland, 1 Beav. 235, 4 My. & Cr. 430 ; Page v. Adam, i Beav. 269 ; Eorbes v. Peacock, 1 Ph. 111. A purchaser is not bound to ascertain how much land it is necessary to sell for payment of debts, for, as observed by the Lord Keeper in Spalding v. Shalmer, 1 Yern. 303, " if more be sold than is sufficient to pay the debts, that shall not turn to the prejudice of the purchaser, for he is not obliged to enter into the account ; and the trustees cannot sell just so much as is sufficient to pay the debts." Where lands are devised to trustees upon t7-ust to raise so much money as the personal estate shall fall deficient in paying the testator's debts and legacies, the purchaser is not bound to inquire whether the real estate is wanted or not. Secus if the trustees have a power merelj' to raise money upon the deflcienc}' of the personal estate, for unless there was a deficiency the power never arose, and consequently the pur- chaser would take no estate by the supposed execution of it. See Cul- pepper V. Aston, 2 Ch. C. 115, 223; Bike v. Bicks, Cro. Car. 335; Pierce v. Scott, 1 Y. & C. Exch. Ca. 251 ; Butler's note to Co. Litt. 290, b.; Bird v. Fox, 11 Hare, 40. In a recent case, where a testator " in case his personal estate should be insufficient for the payment of his debts," charged them upon his 90 APPLICATION OF P U K C H A S E- M N E Y . real estate ; it was held by Lord Romilly, M. R., that the executor had an implied power to sell and give valid receipts for the purchase- money, without showing the insufHciency of the personal estate, although thirteen years had elapsed since the testator's death. Greetham v. Gol- lon, 34 Beav. 615. Where a trustee for the sale of real estate with power to give receipts P^^Q-i and being entitled beneficially to a share of the proceeds *of the sale, has judgments registered against him ; it seems that a pur- chaser with notice of the judgments, may be bound to see to the appli- cation of the purchase-money in payment of the j udgments. See Drum- mond V. Tracy, Johns. 610. Where, however, a testator gave all his real and personal estate to his daughter upon trusts for sale and conversion, and to hold the pro- ceeds for herself and two others equally, with the usual receipt clause, and appointed her executrix ; it was held by Sir W. Page Wood, V. C that the daughter having married and afterwards sold the land, could, with her husband's concurrence, effectually discharge the purchaser, notwithstanding judgments registered against the husband between the date of the sale, and the completion. Drummond v. Tracy, Johns. 608. The rule, that a purchaser is not bound, where the debts are charged generally, to see to the application of the purchase-money, " is," as ob- served by Lord Cottenham, " subject to this obvious exception ; that, if a purchaser or mortgagee is a party to a breach of trust, it can afford him no protection." One obvious example is where a devisee has a right to sell, but he sells to pay his own debt, which is a manifest breach of trust, and the party who concurs in the sale is aware or has notice of the fact that such is its object ; Eland v. Eland, i My. & Cr. 4:21. See also Rogers v. Skillicorne, Ambr. 189 ; Watkins v. Cheek, 2 S. & S. 199 ; Bui't V. Trueman, 8 W. R. (V. C. K.) 635 ; Howard v. Chaffer, 11 W. R. (V. C. K.) 1057 ; 9 Jur. N. S. 767. The fact, however, that an executor, who is also devisee, has mortgaged his private property together with the property devised to him charged with payment of debts, will not raise a presumption against him, that he was not acting in the ordinary discharge of his duty as executor. Barrow v. Griffiih, 13 W. R. (V. C. S.) 41 ; 11 Jur. N. S. 6. So, where trustees, instead of selling under a power in a will, raise money by mortgage in a manner not authorised by the power, many years after the death of the testator, the mortgagee being party to a breach of trust, his security will be invalid. Thus, in Stroughill v- Anstey, 1 De G. Mac. & G. 635, where a testator by his will, after appointing three persons his executors, gave to them the residue of his personal estate, and directed them, or the other trustees to be appointed under the provisions contained in his will, to stand possessed of his residuary personal estate, upon trust at such time or times as to them ELLIOT V. MERRYMAN. 91 should seem meet, to sell and convert into money all such part thereof as should not consist of money, and invest the produce in securities, and to stand possessed of the same, upon *trust thereout to pay r:ishould be just as if an executor sells when property comes to him, unless it can be shown that the purchaser knew that the purchase-money was not going to be so employed, and he was ancillary to something like a fraud, because he may presume that the sale has taken place in the ordinary administration of the duties which were imposed upon the executor by the will." ELLIOT V. MBKRYMAN. 113 It seems to be equally clear, that where the trust is for the payment of debts generally, and also for the payment of legacies, the purchaser is not bound to see the money applied, upon a sale made for the payment of legacies ; because, to hold that he is bound to see the legacies paid, would in fact involve him in the account of the debts, which must first be paid ; Grant V. Hooh, 13 Sergeant & Rawle, 259, 262 ; Cadbury v. Duval, 10 Barr, 265 ; Andrews v. Sparhawk, 13 Pickering, 393, 401 ; Sims v. Lively, 14 B. Monroe, 435 ; see also Bruch v. Ihrie, 2 Rawle, 392, il*l. And it would seem also, that imder a devise for the payment of legacies, the purchaser is not bound to see to the application of the pur- chase money, because, by the law, the debts, generally, must be first paid ; though there is a dictum to the contrary in Grant v. Hook : and in Hannum et al. v. Spear, 1 Yeates, 553 ; S. C, 2 Dallas, 291, it was held that when land was sold under a devise for the payment of legacies, it was subject in the pur- chaser's hands to the lien of debts. With regard to the case of a trust or charge for the payment of certain specified or scheduled debts, there are dicta, indeed, recognizing a dis- tinction between it and the case where the devise is for the pay- ment of debts generally ; Gardner et al. V. Gardner et al., 3 Mason, 118, 218; I>uffyy. Calvert, 6 Gill, 48 ; St. Mary's Church v. Stockton, 4 Halsted, Ch. 520; Wormly v. Warmly, 8 Wheaton, 422. But though such a distinction is reason- able in England, where, without a Yor. I. — 8 power or charge created by will, lands are not a trust in the hands of executors for the payment of debts, yet in this country, where, generally, if not universally, the law afi'ects the lands of a decedent, with a charge or trust for the satis- faction of his debts, which is para- mount to any specific charge in his will, this distinction appears to be inapplicable. In principle, it would seem, that in those states in which lands are subject to be sold by an executor, under an order of court, for the payment of a testator's general debts, a charge or appropriation, by wQl, of lands to certain specified debts , is without operation or efiect in regard to the present purpose ; be- cause, it must be subordinate to the charge and appropriation which the law makes, independently of the devise, and in all cases alike the money must be disposed of, not according to the will of the testator, but according to law : and see the remarks of "Wilson, P., in Cryder's Appeal, 1 Jones, 72, 74. Under such a system, the purchase money is not to be paid directly to the creditor specified by the tes- tator, but must come into the ac- counts of the executor, and be disposed of under the direction of the court having jurisdiction of the accounts ; and, of course, the pur- chaser is not to follow it through the court. Wherever the law creates a general trust of lands for the payment of debts, collateral and paramount to the special appro- priation made by the testator, the case becomes similar to that con- sidered in the preceding note, of 114 APPLICATION OF P U R C H A S E - M N B T . a general charge by will for pay- ment of debts followed by a spe- cific disposition, as in the cases Jenkins v. Hiles, 6 Vesey, 654, n., and Shaw v. Borrer, 1 Keen, 559. These views are sustained by the reasoning in Grant v. Eook^ and the conclusion seems to be inevi- table, that upon a sale under a tes- tamentary charge or trust for the payment of specific or scheduled debts, in those states in which the lands are by law subject to be sold by executors for the payment of debts, the purchaser is not bound to see to the application of the money, because the application is not to be according to the schedule or specification fixed by the tes- tator, and under the direct inter- vention of the purchaser, but ac- cording to the law which regulates the priority of debts, and under the control and supervision of the court. It is well settled that a pur- chaser under a decree of a court has no concern with the disposi- tion which the court may make of the purchase-money, nor can his right as a purchaser be afifected by any misapplication which he may make of it ; Coombs v. Jordan, 3 Bland, 284, 329 ; Wilson, &c., v. Davisson, 2 Robinson's Virginia, 385, 412. The case is not materi- ally difi'erent where the power is given to a testamentary trustee, and not to the executor ; a pur- chaser, if he undertook to see to the application of the purchase money, would still be involved in the accounts of the estate. A trust for payment of particular debts, is much less specific and immediate than in the instance of a sale of trust property for re-investment ; and the cases, under the next head, which hold the purchaser, there, to be liable only where there is collu- sion, appear, a fortiori, to deter- mine this point. But though, under a devise for the payment of debts generally, the purchaser who pays the pur- chase-money to the person author- ized to sell, is not bound to look to its application, yet if the pur- chase-money is misapplied with the co-operation of the purchaser, or if he become directly or in- directly particeps criminis, by buying with intent to misapply the proceeds, he will remain liable to the creditors for the sum so misapplied ; Potter v. Gardner, 12 Wheaton, 499, 502 ; Clyde v. Simpson, 4 Ohio, N. S., 445, 464 ; Chaplin V. Haight, 10 Paige, 275 ; Nicholls V. Peak, 1 Beasley, 69, T3. In Pennsylvania, by statute of Feb. 24, 1834, s. 19, in case of sales of a decedent's estate by an executor for any purpose, the pur- chaser may pay his money into the Orphans' Court, or with leave of that court, to the executor, and the payment shall be valid against all persons. [Whatever the rule may be where land is sold by an executor, or trus- tee for the benefit of creditors, and where the proceeds are conse- quently primarily applicable to the payment of debts, although the sale may be made professedly for a difi'erent purpose, there can he little doubt that where the trust is exclusively for the payment of legacies, scheduled debts, or other ELLIOT V. MERRTIJIAN. 115 definite and ascertained charge, it is the duty of the purchaser to see to the application of the purchase- money, unless the intention of the donor clearly was to exonerate him, and throw the whole respon- sibility on the trustee ; Duffy v. Calvert, 6 Gill, 487 ; Downman V. Rust, 6 Randolph, 527. Thus, where land which had been devised to one Simpson, subject to, and charged with, certain legacies, was sold by Simpson with the view of paying a debt for which he had mortgaged the land to Clyde, the Court said, that the purchaser, Miller, was bound to see to the application of the purchase money, and that he consequently would have been answerable to the lega- tees, even if he had not been aware of the intended misappropriation of the proceeds of the sale by Simpson ; and the case may, con- sequently, be considered as an authority for the former point, although it might have been rested solely on the latter ; Clyde v. Simp- son, 4 Ohio, N. S., 445. " It is certain," said Ranney, J., in de- livering the opinion of the court, " that Simpson was invested with a power to sell the property de- vised, (8 Sim. R. 485-; Myl. & Cro. R. 264 ; 1 Kee. 559 ;) and that no distinction is to be taken between estates devised in trust, or those only charged with the payment of debts or legacies ; 2 Sug. on Tend. 38 ; 2 Story's Eq. sec. 1127 ; 7 Ves. jr. 323. But, in either case, the general rule undoubtedly is, that wherever the trust or charge is of a defined or limited nature, the purchaser must himself see that the purchase-money is applied to the proper discharge of the trust ; but wherever the trust is of a general and unlimited nature, he need not see to it ; 2 Story's Eq. sec. 1129 ; 2 Sug. on Vend. 32 ; Murray v. Ballou, 1 Johns. Ch. R. 556. " In the application of this rule, it has been generally held, that where the trust is created, or the charge imposed, for the payment of a portion, a mortgage, legacies, or scheduled debts, which are defi- nitely ascertained and to be paid over immediately to the person en- titled, the purchaser, in the view of a Court of equity, is bound to see that the money is actually ap- plied to their discharge before the estate is relieved from the burden. But where the trust is created, or the charge exists, for the payment of debts generally, or for the pay- ment of debts and legacies, when an account of the debts necessarily precedes the payment of the lega- cies ; or, where the money is lo be reinvested or otherwise applied by the trustee to the purposes which require time, deliberation, and discretion on his part, the pur- chaser is relieved from such Re- sponsibility, and cestuis que trust must look alone to the trustee. " I am aware, that several emi- nent judges have been of opinion, that a purchaser is in no case bound to see to the application of purchase-money, where the deed or will has designated the person to receive it ; and that a power to sell necessarily includes the in- cidental power to give a valid dis- charge for the purchase-money ; 116 APPLICATI.ON OF PURCHASB-MONBT. and Mr. Powell has defended the same opinion, with much ingenuity and force; 1 Pow. on Mort. 312. But the general course of decision has clearly been otherwise. " In this case, the amount of the legacies, and the persons to receive them, are distinctly defined in the will ; and they were entitled to payment as soon as the time fixed in the will arrived. There is probably nothing to relieve it from the operation of the general prin- ciple ; but it does not need the aid of that principle. There never has been any difference of opinion that if the purchaser knew that the sale involved a breach of trust, or that the money was not to be applied in payment of the debts or legacies charged upon the estate, he would be compelled to hold the property subject to the charge : 2 Sug. on Vend. 39 ; Watkins v. Cheek, 2 Sim. & Stu. 199; Worm- ley V. Wormley, 8 Wheat. 421 ; Gardner v. Gardner, 3 Mason, 1T8. " Now, at the time Miller made his purchase, he was fully aware, not only in fact, but from the notice furnished by the lis pen- dens, that the legacies were not paid, and that no part of the money received from Clyde had been ap- plied to that purpose ; while he ad- vanced his money to pay off Clyde, and denied the existence of any lien in favor of the legatees. He participated in the breach of trust, and after finding himself mistaken as to the lien, he stands upon bo ground to insist that it has been discharged." When, however, the interests of the beneficiaries under a trust, growing out of a devise of land to be sold, or subject to a power of sale, are left uncertain by the tes- tator, and depend for certainty, either as to amount or time of pay- ment, on the choice or discretion of the devisee, the purchasers will not be answerable for the execution of a trust which he has no express or implied power to superintend or control ; Steele v. Livesay, 11 Grattan, 454 ; Carrington v. Ga- den, 13 Id. 58Y.] 3. Where a sale is made by a trustee under a power to sell and re-invest upon the same trust.'] — In Lining v. Peyton, 2 Dessaussure, SW, a marriage settlement author- ized the cestuis que trust to sell the lands to any person they pleased, provided the proceeds should be immediately laid out and vested in the purchase of some other estate of equal value, to he secured upon the same trusts ; and a purchaser under this power sub- mitted to the court whether it was his duty to see to the appropria- tion of the consideration-money to the purposes of the trust estate. " Whatever may be the law in Great Britain on this subject," said Chancellor Rutledge in deliv- ering the decree, "there are a variety of local circumstances which render it not only highly improper, but almost impracticable that it should be adopted in tliis country. The case before us proves the position, for scarcely would a purchaser be found of trust estates who would be in- clined to be saddled with the in- convenience and embarrassment of ELLIOT V. MERRYMAN. 117 8eeing that the purchase-money, was applied to the purposes of the trust. It has never heretofore been determined that he should, and we will not now establish a precedent, for it might tend ex- ceedingly to embarrass, if not shake to the foundation, the titles of very many persons who have heretofore purchased at the sales of the trust estates without the re- motest idea of responsibility, as to the application of the purchase- money. We do not say that where property has been conveyed in trust for the payment of debts, or other specific purposes, that it is not the duty as well as the interest of purchasers at such sales to attend to the right appropriation of the money; but in cases like the present, and others that may be assimilated to it, purchasers are not, and ought not to be consid- ered in the same light as trustees, and intrude themselves on the parties to see that the purchase- money is applied as the trust deed directs, because the cestui que trust joining in the conveyance with the trustee, it is his particu- lar duty as well as his interest to see the trust money properly ap- plied, and if he finds the trustee dis- posed to misapply it, he can im- mediately apply to this court for redress. The court are therefore of opinion and decree, that in this case the complainant is not obliged to attend to the disposi- tion of the purchase-money of the estate, conceiving that the cestuis que trust, who are parties to the conveyance, aif fully competent, and the only persons who ought to interest themselves in the busi- ness." Notwithstanding the nar- row ground of this decision, the case is referred to in Redheimer ads. Pyron, 1 Spear's Equity, 135, 141, as establishing that, in gen- eral, purchasers from a trustee are not bound to see to the application of the purchase-money. " It might be a question, however," said the court in the latter case, " if the purchasers know that the trustee intends to misapply the money, and pay it to him with that knowl- edge, they might not, in the event of his insolvency, be compelled to make good any deficiency of the fund." And Wormley v. Wbrmley, 8 Wheaton, 422, 442, establishes the principle, that if a trustee in a marriage settlement under a power to sell and re-invest, sells under cir- cumstances that constitute a breach of trust, namely not for the pur- pose of re-investment, but for the purpose of paying his own debts, and the purchaser has notice of this, the land in his hands is affec- ted with the trusts which previ- ously attached to it. In New York the Revised Stat- utes (vol. 1, p. 730, ss. 65, 66,) pro- vide, that, " where the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other act of the trustees, in contravention of the trust, shall be absolutely void," but that " no person who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is authorized to receive, shall be responsible for the proper application of such m ney, according to the trust ; 118 APPLICATION OF P U R C H A S B - M N E Y . nor shall any right or title, de- rived by him from such trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplica- tion, by the trustee, of the moneys paid." Since these provisions, it has been held, that if a purchaser under a power in a will to trustees to sell and invest the proceeds, for the purposes of the trust, has ex- press notice, at the time of sale, that the sale was not made for the purpose of investing the proceeds in conformity with the trust cre- ated in the will, but for a differ- ent purpose, he is not protected ; Champlin v. Eaight, 10 Paige, 275 ; reversed on another point, on appeal, 1 Hill, 245. [All the cases seem to agree, that where the disposition of the pro- ceeds depends in any material particular, upon the discretion of the trustee, or where an interval must or may properly elapse be- tween the sale and the application of the purchase-money, the pur- chaser will be freed from liability by a payment to the trustee, and will not be responsible for a subse- quent misappropriation by the lat- ter ; Wormley v. Wormley, 8 Whea- ton, 422 ; Davis v. Christian, 15 Grattan, 411 ; Sims v. Lively, 14 B. Monroe, 433, 449 ; Coonrod v. Coonrod, 6 Hammond, 114; Hau- ser V. Shore, 5 Iredell, Eq. 85T. Trusts for sale and reinvestment, are emphatically within the opera- ' tion of this principle, because every investment requires the exercise of discretion in the selection and choice of the security, and must necessarily be delayed until a suita- J?le opportunity is found for invest- ing ; and the rule has consequently been said to be, that where a trus- tee is required or authorized to sell and reinvest for the same trusts or purposes, the purchaser will be dis- charged from responsibility for the application of the money paid by him to the trustee ; Dalzell v. Crawford, 1 Peason's Eq. ST, 50 ; Lanning v. Peyton, 12 Dessaussure, 375 ; Eedheimer v. Peyron, 1 Spear, Eq. 141 ; Sims v. Lively ; Nicholls v. Peak, 1 Beasley, 69, 72 ; Coon- rod V. Coonrod, 6 Hammond, 114. In general, one who deals with an executor or trustee, is entitled to presume that he is acting in good faith, and in the due discharge of tlie duties of his office : Urban V. Hopkins, 17 Iowa, 105; and hence the title of a purchaser from a trustee who is authorized to sell for the payment of debts, will, in general, be equally good, whether there are, in point of fact, any debts or not ; Oarnett v. Macon, 6 Call ; 2 Brockenborough, 185 ; Williamson v. Morton, 2 Mary- land, Ch. 94, 103 ;, Davis v. Chris- tian, 15 Grattan, 9, 40. The pur- chaser is not to judge at his peril as to the necessity for a sale. That question is one which the pur- chaser has ordinarily no means of determining, and which he may, therefore, properly refer to the judgment of the trustee. The principle is a general one, and applies wherever the founder of the trust vests a discretionary power in the executor or trustee, and leaves him to determine when and how it shall be%xercised ; Gar- rington v. Gadden, 13 Grattan, 587. ELLIOT V. MEREYMAN. 119 But the purchaser will unquestion- ably be liable to the cestui que trust, if he knows that the trustee is acting in violation of his trust, or even, that he entertains such a design and sells as a means of ac- complishing it ; Garnett v. Macon ; Williamson v. Morton ; Clyde v. Simpson, 4 Ohio, N. S. 445 ; Graff v. Castleman, 5 Randolph, 195 ; Jackson V. Updegraff, 1 Robin- son, lOT ; Peackard v. Woods, 8 Grattan, 140. One who buys from an agent, executor, or trustee, knowing that he intends to mis- appropriate the purchase-money is particeps criminis. For a like reason, onfe who ac- cepts a bond or other security, from an officer of a bank or railway for a private debt, with notice that it is the property of the corporation may be compelled to refund ; Garrard v. The Bail- road Company, 5 Casey, 154, ante. 110. It was held in Duncan v. Jau- don, 15 Wallace, 165, that one who lends money to a trustee on a pledge of stock which is held in trust, and sells the stock for the repayment of the loan, must ac- count to the cestui que trusts if he had either actual or construc- tive notice that the trustee was abusing his trust, and applying the money to his own use. Such notice will be implied where the oertlfleates disclose the trust, and it would have appeared on inquiry that the loan was for a private pur- pose of the trustee. Davis, J., said, " In Lowry v. The Commercial and Farmers^ Bank of Maryland, Taney's Circuit Court Decisions, 310, which was a case of misap- propriation of corporate stock by an executor. Chief Justice Taney held, " that if a party dealing with an executor has, at the time, rea- sonable ground for believing that he intends to misapply the money, or is in the very transaction ap- plying it to his own private use, the party so dealing is responsible to the persons injured." And the Supreme Court of Massachusetts, in a recent case, Shaw v. Spencer and others, 100 Massachusetts, 389, in its essential features, like the case at bar, decides that if a certificate of stock, expressed in the name of " A. B., Trustee," is by him pledged to secure his own debt, the pledgee is by the terms of the certificate put on inquiry as to the character and limitations of the trust, and if he accepts the pledge without inquiry, does so at his peril. In that case the cestui que trust was not named in the certifi- cate, and the Court remarked that, if he had been, the duty of inquiry would hardly be controverted. If these propositions are sound, and we entertain no doubt on the point, the liability of the appellants for the conversion of the stock be- longing to Mrs. Jaudon, cannot be an open question. They either knew or ought to have known that Jaudon was operating on his own account, and are chargeable with constructive notice of every- thing which upon inquiry they could have ascertained from the cestui que trust. If this inquiry had been pur- sued, they could not have failed to discover the nature and foun- 120 CONTKIBUTION. — SUBROGATION. dation of the trust, and that the money ; but nine successive loans trustee had no right to pledge the to him in one year, each time on stock for any purpose. the pledge of the same trust se- The bank in its dealings with curity, was evidence enough to Jaudon was guilty of gross negli- satisfy any reasonable man that gence, and in consequence of this the money was wanted for private inflicted serious injury upon an uses, and not for any honest pur- innocent person. It may be that pcse connected with the adminis- the cashier never inquired of Jau- tration of the trust.] don what he wanted with the [*100] *DERIFa V. EAEL OF WINCHELSEA. IN THE EXCHEQUER. FEBRUARY 8, 1787. REPORTED 1 COX, 318.1 Contribution between Co-sureties.] — The doctrine of contribution amongst sureties is not founded in contract^ but is the result of general equity, on the ground of equality of burthen and benefit. Therefore, where three sureties are bound by different instruments, but for the same principal and the same engagement, they shall contribute. Thomas Dering, Esq., having been appointed collector of some of the duties belonging to the customs, it became necessary, upon such appointment, for him to enter into bonds to the Crown with three securities for the due performance of this office. Sir Edward Dering his brother, the Earl of Winchelsea, and Sir John Rous having agreed to become sureties for him, a joint and several bond was executed by Thomas Dering and Sir Edward Dering to the Crown in the penalty of £4000 ; another joint and several bond by Thomas Dering and the Earl of Win- chelsea, and a third by Thomas Dering and Sir John Eous, in the , same penalty of £4000 ; all conditioned alike for the due per- formance of Thomas Dering's duty as collector, Mr. Dering being in arrear to the Crown to the amount of 3883?. 14s., the Crown put the first bond in suit against Sir Edward leering, and judg- ment was obtained thereon for that sum ; whereupon Sir Edward filed this bill against the Earl of Winchelsea and Sir John Rous, claiming from them a contribution towards the sum so recovered against him. The cause has been argued at length in Michaelmas Term last, and now stood for judgment. r*1011 *I'ORD Chief Baron Eyre. — This bill is brought by one L ^ surety against his two co-sureties, under the circumstances ' 8. C, 2. B. & P. 370. BERING V. EARL OF W I N C H E L S E A . 121 (above mentioned). Mr. Bering's appointment, the three bonds, and the judgment against the plaintiff are in proof in the cause ; the original balance due, and the present state of it, are admitted. The demand is resisted on two grounds : first, that there is no foundation for the demand in the nature of the contract ; and, secondly, that the conduct of Sir Edward Dering has been such as to disable him from claiming the benefit of the contract, though it did otherwise exist. There is also a formal objection, which I shall take notice of hereafter. I shall consider the second ground of objection first, in order to lay it out of the case. The misconduct imputed to Sir Edward is, that he encouraged his brother in gaming and other irregulari- ties ; that he knew his brother had no fortune of his own, and must necessarily be making use of the public money ; and that Sir Edward was privy to his brother's breaking the orders of the Lords of the Treasury, to keep the money in a particular box, and in a particular manner, &c. This may all be true, and such a representation of Sir Edward's conduct certainly places him in a bad point of view ; and perhaps it is not a very decorous pro- ceeding in Sir Edward to come into this court under these cir- cumstances. He might possibly have involved his brother in some measure, but yet it is not made out to the satisfaction of the Court that these facts will constitute a defence. It is argued that the author of the loss shall not have the benefit of a contri- bution ; but no cases have been cited to this point, nor any prin- ciple which applies to this case. It is not laying down any principle to say, that his ill conduct disables him from having any relief in this court. If this can be founded on any principle, it must be that a man must come into a court of equity with clean hands : but when this is said, it does not mean a general depravity ; it must have an immediate and necessary relation to the equity sued for : it must be a depravity in a legal, as well *as in a moral sense. In a moral sense, the companion, p...... ^o-i and perhaps, the conductor of Mr. Dering may be said to '- -' be the author of the loss, but, to legal purposes, Mr. Dering him- self is the author of it ; and if the evil example of Sir Edward led him on, this is not what the Court can take cognizance of. Cases, indeed, might be put, in which the proposition would be true. If a contribution were demanded from a ship and cargo for goods thrown overboard to save the ship, if the plaintiff had actually bored a hole in the ship, he would in that case be cer- tainly the author of the loss, and would not be entitled to any contribution. But speaking of the author of the loss is a mere figure of speech, as applied to Sir Edward Dering in this case. The real point is, whether a contribution can be demanded between the obligors of distinct and separate obligations under the circumstances of this case. It is admitted, that, if there had been only one bond in which the three sureties had joined for 12,000^., there must have been a contribution amongst them to the extent of any loss sustained ; but it is said that that case pro 122 CCNTEIBUTION. — SUBROGATION. ceeds on the contract and privity subsisting amongst the sureties, which this ease excludes ; that this case admits of the supposition that the three sureties are perfect strangers to each other, and each of them might be ignorant of the other sureties, and that it would be strange to imply any contract as "amongst the sureties in this situation ; that these are perfectly distinct undertakings without connexion with each other, and it is added, that the con- tribution can never be eodem modo as in the three joining in one bond for 12,000/.; for there, if one of them become insolvent, the two others would be liable to contribute in moieties to the amount of 6000/. each, whereas here it is impossible to make them contribute beyond the penalty of the bond. Mr Madocks has stated what is decisive, if true, that nobody is liable to con- tribute who does not appear on the face of the bond. If this means only that there is no contract, then it comes back to the question whether the right of contribution is founded on con- tract. r#i Qo-t *If we take a view of the cases, both in law and equity, '- -"we shall find that contribution is bottomed and fixed on gen- eral principles of Justice, and does not spring from contract ; though contract may qualify it, as in Swain v. Wall, 1 Ch. E,ep. 149. In the register 176 b, there are two writs of contribution — one inter co-hseredes, the other inter co-feoffatos ; these are founded on the Statute of Marlbridge. The great object of the statute is, to pro- tect the inheritance from more suits than are necessary. Though contribution is a part of the provision of the statute, yet in l^'itzh. N. B. 338, there is a writ of contribution at common law amongst tenants in common, as for a mill falling to decay. In the same page, Fi tzherbert takes notice of contribution between co-heirs and co-feoffees ; and as between co-feoffees, he supposes there sha) 1 be no contribution without an agreement, and the words of the writ countenance such an idea, for the words are " ex eorum assensu ; " and yet this seems to contravene the express provision of the statute. As to co-heirs, the statute is express ; it does not say so as to feoffees, but gives contribution in the same manner. In Sir William JSarbert's case, 3 Go. 11 b, many cases of contributioa are put ; and the reason given in the books is, that in sequali jure the law requires equality : one shall not bear the burthen in ease of the rest, and the law is grounded in great equity. Contract is never mentioned, lifow, the doctrine of equality operates more effectually in this court than in a court of law. The difficulty in Coke's Gases was, how to make them contribute; they were put to their audita quarela, or scire facias. In equity there is a string of cases in 1 Eq. Ca. Ab., tit. " Contribution and Average." Another case occurs in Hargr. Law Tracts,' on the right of the King on the prisage of wine. The King is entitled to one ton before the mast, and one ton behind ; and in that case a right of contribution accrues, for the King may take by his prerogative ' P. 120. BERING V. BAEL OF ■VVINCHBLSEA. 123 any two tons of wine he thinks fit, by which one man might Buffer solely. But the contribution is given of course on general principles, which govern all these cases. *Now, to come to the particular case of sureties. It is r^irj^-i clear that one surety may compel a contribution from ^ ^ another towards payment of a debt for which they are jointly bound. On what principle ? Can it be necessary to resort to the circumstance of a joint bond ? What if they are jointly and sev- erally bound ? What difference will it make if they are severally bound, and by different instruments, but for the same principal, and the same engagement ? In all these cases the sureties have a common interest and a common burthen ; they are joined by the common end and purpose of their several obligations as much as if they were joined in one instrument, with this difference only, that the penalties will ascertain the proportion in which they are to contribute ; whereas if they had joined in one bond, it must have depended on other circumstances. In this case, the three sureties are all bound that Mr. Dering shall account for the monies he receives. This is a common burthen. All the bonds are forfeited at law and in this court, as far as the balance due. The balance might have been so great as to have exhausted all the penalties, and then the obligee forces them all to pay ; but here the balance is something less than one of the penalties. Now, who ought to pay this ? The one who is sued must pay it to the Crown, as in the case of prisage ; but, as be- tween themselves, there shall be a contribution, for they are in sequali jure. This principle is carried a great way where they are joined in one obligation; for if one should pay the whole 12,000?., and the second were insolvent, the third shall contribute a moiety, though he certainly never meant to be liable for more than a third. This circumstance, and the possibility of one being liable for the whole if the other two should prove insolvent, suggested the mode of entering into separate bonds ; but this does not vary the reason for contribution, for there is the same principal and the same engagement ; all are equally liable to the obligee to the extent of the penalty of the bonds when they are not all exhausted. If, in the common case of a joint bond, no distinction is to be *made, why shall not the same rale r^^ r.^-, govern here ? As in the ease of average of cargo in a court '- -■ of law, qui sentit commodum sentire debet et onus. This princi- ple has a direct application here ; for the charging one surety dis- charges the other, and each therefore ought to contribute to the onus. In questions of average, there is no contract or privity in ordinary cases ; but it is the result of general justice, from the equality of burthen and benefit. Then there is no difficulty or absurdity in making a contribution take place in this case, if not founded on contract, nor any difficulty in adjusting the propor- tions in which they are to contribute, for the penalties will ne- cessarily determine this. The object in point of form, which I before mentioned, is, that 124 CONTRIBUTION. — SUBROGATION. the bill caimot be sustained, inasmuch as it has not charged the insolvency of the principal debtor, and that such a charge is absolutely necessary. As a question of form it ought to have been brought on by demurrer; but, in substance, the insolvency of Mr. Dering may be collected from the whole proceedings, which strongly imply it ; for the plaintift" appears to have submitted to the judgment, and the defendants have made their defence on other grounds. On the whole, therefore, we think that the plaintiff is entitled to the relief he prays, and declare that the balance due from Thomas Bering being admitted on all hands to amount to the sum of 3883?. 14s. 8|3., the plaintiff. Sir Edward Dering, and the two defendants, the Earl of "VVinchelsea and Sir John Rous, ought to contribute in equal shares to the payment of that sum, and direct that the plaintiff and defendants do pay in discharge thereof, each of them, the sum of 1294?. lis. Id.; and that on payment thereof, the Attorney-General shall acknowledge satis- faction on the record of the said judgment, and that the two bonds entered into by the Earl of W inchelsea and Sir John Rous be delivered up to them respectively. But this not being a very favourable case to the plaintiff, and the equity he asks being doubtful, we do not think it a case for costs. *" The principle," observed Lord Redesdale, " established in '- -' the ease of Dering v. Lord Winchelsea, is universal, that the righ.t and duty of contribution is founded in doctrines of equity ; it does not depend upon contract. If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by con- tract, to give to the party paying the debt all his remedies against the other debtors. The cases of average in equity rest upon the same prin- ciple. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt fi'om payment. lie is bound, seldom by contract, but always in conscience, as far as he is able, to put the j/arty paying the debt upon the same footing with those who are equally bound. That was the principle of the decision in Dering v. Lord Winchelsea ; and in that case there was no evidence of contract ; " Stirling v. Forres- ter, S Bligh. 59. See also Graythorne v. Swinburne, 14 Ves. 160, 165, 169 ; Eartly v. O'Flaherty, 1 Beat. 11, 18 ; Ware v. Horwood, 14 Ves. 31 ; Mayhew v. Crickett, and note, 2 Swanst. 189, 192 : Spottiswood^s Case, 6 De Q. Mae. & Q. 345, 311, 375; Whiting v. Burke, 10 L. R. Eq. 539 ; 6 L. R. Ch. App. 342 ; where the doctrine laid down in Der- ing V. Lord Winchelsea, has been recognised and approved of. Courts of common law, in modern times, have assumed a jurisdiction to compel contribution between sureties, in the absence of positive con- tract, on the ground of implied assumpsit ; inasmuch as the principle BERING V. BAKL OP WINCHELSEA. 125 of contribution being in its operation established, a contract may be in- ferred, upon the implied knowledge of that principle by all persons. This jurisdiction is convenient enough, in a case simple and uncompli- cated, but attended with great difficulty where the sureties are numer- ous ; especially since it has been held, that separate actions may be brought against the different sureties for their respective quotas and proportions. It is easy to foresee the multiplicity of suits to which that leads: Graythorne v. Swinburne, 14 Ves. 164; Cowell v. Edwards, 2 B. & P. 268 ; see also 1 Saund. R. 264, n. (a), Williams's note (6). In other respects, as will be hereafter seen, the jurisdiction at common law is much more confined and less beneficial than in equity. Thus where there are several sureties, and one becomes insolvent, the surety who pays the entire debt can in equity compel the solvent sureties to contribute towards payment of the entire debt (Peter v. Bich, 1 Ch. Rep. 34; Hole v. Harrison, 1 Cli. Ca. *246; S. C, Finch, Rep. p^,„^-, 15, 203 ; Hitchman v. Stewart, 3 Drew. 271 ; and see The Mayor ^ -' of Berwick v. Murray, 25 L. J., N. S. (Ch.) 201 ; T De G. Mac. & G. 497) ; but at law he can recover no more than an aliquot part of the whole, regard being had to the number of co-securities : Cowell v. Ed- wards, 2 B. & P. 268 ; Browne v. Lee, 6 B. & C. 697 ; S. C, 9 D. & R. 700. See also Sogers v. Mackenzie, 4 Ves. 752 ; Wright v. Hunter, 5 Ves. 927 ; Batard v. Hawes, 2 E. & B. 287. So, also, if one of the sureties dies, in equity contribution can be enforced as against his rep- resentatives ; but at law an action lies only against the surviving sure- ties: Primrose v. Bromley, 1 Atk. 90; Batard v. Hawes, 2 E. & B. 287. It may here be observed that in all cases of contribution, the juris- diction assumed by courts of law does not effect the original jurisdiction of courts of equity; Wright v. Hunter, 5 Ves. 794, where Lord Al van- ley, M. R., says, " I would not lay down, nor have it understood, that, because courts of law may entertain actions upon such subjects, a party may not file a bill for contribution." It is clear, as laid down by the Lord Chief Baron, in Bering v. The Earl of Winchelsea, that a surety may compel contribution from another for payment of a debt for which they are jointly or severally or jointly and severally, bound by the same instrument : Fleetwood v. Gharnock, Nels. 10 ; Underhill v. Horwood, 10 Ves. 226 ; Graythorne V. Swinburne, 14 Ves. 164. It was, however, decided for the first time in Bering v. The Earl of Winchelsea that there is no difference whether the parties are bound in the same or by different instruments, provided they are co-securities for the same principal and in the same engage- ment ; and further, that there is no difference if they are bound in dif- ferent sums, except that contribution could not be required beyond the sum for which they had become bound. In Graythorne v. Swinburne, 14 Ves. 169, Lord Eldon said that he argued Bering v. The Earl of 126 CONTRIBUTION. — SUBROGATION. Winchelsea, and that he was much dissatisfied with the whole proceeding and with the judgment ; but he had been since convinced that the de- cision was upon right principles. " Lord Chief Baron Eyre," observed his Lordship, " in that case decided that this obligation of co-securities is not founded in contract, but stands upon a principle of equity." See also Ware v. Horwood, 14 Ves. 31 ; Mayhew v. Crickett, 2 Swanst. 192 ; Stirling v. Forrester, 3 Bligh. 596. And it seems that the right of a surety to enforce contribution against co-sureties will not be affected by his ignorance at the time he became surety that they were also co-sureties ; . Graythorne v. Swinburne, 14 Ves. 163, 165. 1 * Where, however, sureties are bound by different instruments L -' for distinct portions of a debt due from the same principal, if the suretyship of each i4 a separate and distinct transaction, the doctrine laid down in Bering v. Lord Winchelsea will not apply, and there will be no right of contribution among the sureties : Coope v. Twynam, 1 T. & E,. 426 ; Arcedeckne v. Lord Howard, 21 L. T. R. (N. S.) 194; 20 W. R. SI 9, reversing the decision of Sir R. Malins, V. C, reported lb. 511. A surety will in equity be entitled to interest from his co-sureties for the money which he has paid : Lawson v. Wright, 1 Cox, 215, 2'7'7; Hitchman v. Stewart, 3 Drew. 271; Swain v. Wall, 1 Ch. Rep. 149; Petre v. Buncombe, 15 Jur. 86. See, however, Onge v. Trueloch, 2 Moll. 31, 42; Bell v. Free, 1 Swanst. 90; Rigby v. M'Namara, 2 Cox, 415. And it has been held recently in Ireland, overruling the cases of Onge v. Truelock, 2 Moll. 42, and Salkeld v. Abbott, Hayes and Jones, 110, that where one of two sureties had paid the full amount of a re- ceiver's recognizance, he was entitled to use the recognizance for the purpose of recovering out of the estate of his co-surety, not only one half of the sum so paid by him, but also interest thereon from the date of payment. In re Swan's Estate, 4 I. R. Eq. 209. Although the principle of contribution is not founded upon contract still a person may by contract qualify, or take himself out of the reach of, the principle or the implied contract. Thus, where three persons became bound for the principal debtor in an obligation, and agreed among themselves that, if the principal debtor failed to pay the debt, they would pay their respective parts ; two became insolvent, and the third paid the money, and one of the insolvent sureties afterwards he- coming solvent, he was held liable to contribute one-third only : Swaii V. Wall, 1 Ch. Rep. 149 ; see also Graythorne v. Swinburne, 14 Tea. 165 ; Goope v. Twynam, 1 T. & R. 426 ; Gollins v. Prosser, 1 B. & C. 682. So also a person may take himself entirely out of the principW) as where he becomes merely a collateral surety, by limiting his liability to payment of the debt upon the default of the principal and other sure- BERING V- EARL OF WINCHELSEA. 127 ties ; and on a bill in such a case, filed for contribution, parol evidence is admissible to show what the real contract was, and to rebut the im- plied contract which equity raises in cases of contribution: Cray- thorne v. Swinburne, 14 Ves. 160, overruling Cooke v. ■ , 2 Prem. 97 ; S. C, 2 Eq. Ca. Ab. 223, pi. 1 ; see also Hartley v. 0' Flaherty, L. & G., temp. Plunk. 21T, where Lord Plunkett sajs, " In the case of A. undertaking that if the principal does not pay, and if B., who has al- ready become security, does not pay, he, A., will pay, it seems perfectly clear that B., in that case paying the whole, *would have no claim r*109l of contribution against A." L ""J Sureties who have paid the debt are not only entitled to contribution from the other sureties, but also in the absence of any contract for a particular indemnity {Cooper v. Jenkins, .32 Beav. 331), to the benefit of any security which any of them may have taken from the principal debtor by way of indemnity: Swain v. Wall, 1 Ch. Rep. 149 : and it is a general rule (subject, however, to some few qualifications) that a surety is entitled to the benefit of all the securities which the creditor has against the principal. Thus, if a surety join with the principal 'in a promissory note or bond, and the surety pays the debt, he will be enti- tled to have a transfer of anj' mortgage which the creditor may have taken for his debt. " I take it," says Lord Eldon, " to be exceedingly clear, if at the time a bond is given a mortgage is also made for secur- ing the debt, the surety, if he pays the bond, has a right to stand in the place of the mortgagee ; and, as the mortgagor cannot get back his estate again without a conveyance, that security remains a valid and effectual security, notwithstanding the bond debt is paid : " Copis v. Middleton, T. & R. 231; see also Hodgson v. Shaw, 3 My. & K. 195; Gayner v. Eoyner, cited in Robinson v. Wilson, 2 Madd. 434 ; Yonge V. Reynell, 9 Hare, 809 ; Goddard v. Whyte, 2 Giff. 449 ; Brandon v. Brandon, 3 De. G. & Jo. 524 ; and it is immaterial that the surety is not aware of the existence of the mortgage : Mayhew v. Crickett, 2 Swanst. 191 ; Scott V. Knox, 2 Jones, 118. Where a surety for a mortgagor pays off part of the mortgage debt, he is entitled as against the mortgagor to a charge on the estate, for the amount he has so paid : Gedye v. Matison, 25 Beav. 310. A surety who pays off a debt for which he became answerable is entitled not only to all the equities which the creditor could have enforced against the principal debtor, but also against all persons claim- ing under him. Thus in Drew v. Lockett, 32 Beav. 499, A. mortgaged his estate to 0. and B. became A.'s surety for the debt. Afterwards A. mortgaged the estate to D. who had notice of the first mortgage. The first mortgage was afterwards paid off, partly by B. the surety, but D. got the transfer of the legal estate. It was held by Sir John Romilly, M. R., that the sureties still had priority over D. for the amount paid by him under the first mortgage as surety for A. 128 CONTRIBUTION. — SUBROGATION. And if through neglect on the part of a creditor a security to the benefit of which a surety is entitled is lost, or not properly perfected, the surety will be discharged so far as regards the amount of the security so lost : Strange v. Fooks, 4 GifiF. 408. But where the creditor advances a further sum upon the security r*110l *°^ *''® mortgage, the surety cannot compel the creditor to assign it to him, unless he pays off the further sum, as well as the sum for the payment of which he became surety : William v. Owen, 13 Sim. 597 ; but see Bowker v. Bull, 1 Sim. N. S. 29, and the remarks thereon in Farebrother v. Wodehouse, 23 Beav. 28. And where separate debts are due upon distinct securities from the principal debtor to the creditor, the latter will not lose his right to tack, by the fact that a third party who has become surety for one of the debts, has either voluntarily or upon proceedings taken against him by the creditor, paid off such debt: see Farebrother v. Wodehouse, 23 Beav. 18. There the defendants lent A. B. at the same time two sums of 2000Z. and 3000Z. on distinct securities, and the plaintiff was surety for the lirst sum. It was- held by Sir John Romilly, M. R., that the plaintiff, on paying the 2000Z. was not entitled to have a transfer of the securities held for that sum, until the defendants had also been paid the 3000Z. But the right of the mortgagee in such cases to tack as against the surety may be affected by contract between the parties, or by conceal- ment or misrepresentation on the part of the mortgagee; see the remarks of Sir John Romilly, M. R., in Farebrother v. Wodehouse, 23 Beav. 22, 23, 25, 28 ; and Bowker v. Bull, 1 Sim. N. S. 29. The right of the surety to have the benefit of the securities held by the creditor is derived from the obligation on the part of the principal to indemnify the surety: Yonge v. Reynell, 9 Hare, 818. Courts of equity, it seems, would, at a very early period, compel assignments of securities to a surety to a much greater extent than In later times they took upon themselves to do. There is a very strong instance of the application of that equity in Parsons v. Briddoch, 2 Vern. 608. In that case the principal had given bail in an action; judgment was recovered against the bail ; afterwards the surety was called upon and paid; and it was held, that he was entitled to an assign- ment of the judgment against the bail. So that, though the bail were themselves but sureties as between them and the principal debtor, yet, coming in the room of the principal debtor as to the creditor, it was held, that they likewise came in the room of the principal debtor as to the surety. Consequently that decision established that the' surety had precisely the same right that the creditor had, and was to stand in his place. The surety had no direct contract or engagement by which the bail were bound to him, but only a claim against them through the medium of the creditor, and was entitled only to all his rights. See, BERING V. EARL OF WINCHELSEA. 129 however, Hodgson v. Shaw, 3 My. & K. 189, and Armitage v. Baldwin, 5 Beav. 278, where a creditor sued *his principal debtor and r^iii-i recovered a judgment against him and the ball in the action. The surety thereupon " paid and satisfied " to the creditor the amount of the judgments, with interest and costs, and took an assignment thereof. Lord Langdale, M. E., held, that the judgment was dis- charged, and that the surety could not recover on the judgment against the bail. See also Dowhiggin v. Bourne, 2 Y. & C. Exch. Ca. 462. Upon the same principle, although it was at one time thought that a surety paying off the debt of the principal, secured by* their bond, was entitled to have from the creditor an assignment of the debt and of the bond by which it was evidenced or secured, the contrary, was fully established in two cases decided by Lord Eldon, C. and Lord Brougham, C, where the whole subject was examined in a most elabo- rate manner. In Gopis v. Middleton, 1 T. & R. 229, Lord Eldon said : — " It is a general rule, that, in equity, a surety is entitled to the benefit of all the securities which the creditor has against the principal ; but then the nature of those securities must be considered. Where there is a bond merely, if an action was brought upon the bond, it would appear upon oyer of the bond that tlie debt was extinguished. The general rule, therefore, must be qualified by considering it to apply to such securities as continue to exist, and do not get back upon payment to the person of the principal debtor. In the case, for instance, where, in addition to the bond, there is a mortgage, with a covenant on the part of the principal debtor to pay the money, the surety paying the money would be entitled to say, ' I have lost tlie benefit of the bond ; but the creditor has a mortgage, and I have a right to the benefit of the mort- gaged estate which has not got back to the debtor.' " So also Lord Brougham, in Hodgson v. Shaw, 3 My. & K. 190, observes : — " The rule here is undoubted, and it is one founded on the plainest principles of natural reason and justice, that the surety paying off a debt shall stand in the place of the creditor, and have all the rights which he has for the purpose of obtaining his reimbursement. It is hardly possible to put this right of substitution too high ; and the right results more from equity than from contract or quasi contract, unless in so far as the known equity maj' be supposed to be imported into any transaction, and so to raise a contract by implication. The doctrine of the Court in this respect was luminously expounded in the argument of Sir Samuel Romilly in Craythorne v. Swinburne; and Lord Eldon, in giving judgment in that case, sanctioned the exposition by his full 'approval. ' A surety,' to use the language of Sir S. Romilly's reply, 'will be entitled to every remedy which *the creditor has r^^io-i against the principal debtor ; to enforce every security and aU means of payment ; to stand in the place of the creditor, not only through the medium of contract, but even by means of securities VOL. I. — 9 130 CONTRIBUTION, — SUBROGATION. entered into without the Icncwledge of the surety ; having a right to have those securities transferred to him, though there was no stipula- tion for that : and to avail himself of all those securities against the debtor.' I have purposely taken this statement of the right, because it is there placed as high as it ever can be placed, and yet it is quite consistent with the principle of Gopia v. Middleton. Thus the surety paying is entitled to every remedy which the creditor has. But can the creditor be said to have any specialty, or any remedy on any specialty, after the bond is gone by payment? The surety may enforce any security against the debtor which the creditor has ; but, by the suppo- sition, there is no security to enforce, for the payment has extinguished it. He has a right to have all the securities transferred to him ; hut there are, in the case supposed, none to transfer — they are absolutely gone. He may avail himself of all those securities against the debtor, but his own act of payment has left none of which he can take advan- tage." [Technically speaking, payment cannot take place after breach, with- out a new agreement. Payment at the day is performance, payment after the day, another name for accord and satisfaction. The tender must not only be made, but accepted with an intent to extinguish the obligation, and if it be not, the liability will survive although the money comes from the pocket of the debtor and goes into that of the creditor: Thomas v. Gross, Y Exchequer, 'T28 ; Buck v. Blanchard, 2 Poster, 303 ; The Kingston Bank v. Oay, 19 Barb. 4.59 ; Kington v. Kington, 11 M. & W. 233. Hence a payment by one of several joint debtors will not preclude a recovery for his benefit against all, if the circumstances indicate that the intention was to purchase the demand and not to satisfy it. Jn Mclnfyre v. Miller, 13 M. & W. 472, the demand in suit was a deposit note of a joint stock bank. The defendants, Miller, Harwood and Spence, were shareholders in the bank, and therefore jointly and severally liable on the note. It appeared in evidence that the note had been paid by the London and Westminster Bank, with the funds of Walker, another shareholder, and assigned to one Richards for his use. The suit was confessedly brought for Walker's benefit. It was con- tended on behalf of the defence, that the note was clearly paid. The cases as between principal and surety were not in point. There the contest was between the party who ought to have paid the debt, but had not, and him who ought not to have paid it, but had, and it was regarded as still in being to give the surety the benefit of the securities held by the creditor. This argument was overruled by the Court. Parke, Baron, said, " If the debt be expressly kept alive at the time, it cannot be satis- fied by the very act that keeps it alive. To construe that as payment which was meant to be an assignment, is a contradiction in terms. Unless an act can be made to operate exactly the reverse of what the parties intended, the note is not paid. If the defendants have an equity, BERING V. EARL OP WINCHELSEA. 131 and it was a wrong thing for one partner to buy up a debt due from the firm — and so endeavour to recover it without taking the accounts, they must go into equity ; but such considerations have no place in a Court of law." So in Taylor v. Van Deusen, 3 Gray, 498, the Court refused to set aside an execution against the surety, although the debt had been purchased by a third person with the money of the principal and on his behalf It would notwithstanding appear, that in determining whether a debt has been extinguished, regard should be had to what the parties ought to have done, and not merely to what they designed. As between ordinary co-contractors it may not be inequitable that one should ad- vance the whole amount, and have the demand assigned as a means of compelling the rest to contribute their respective quotas. And it may well be, that where a judgment for a partnership debt binds the real estate of a member of the firm, another partner may take an assignment of the judgment in the name of a third person, as security for the amount that may be due on a settlement of the partnership accounts. But it is very clear that as a principal debtor cannot throw the burden of the debt on the surety by direct means, he should not be allowed to do so by using a third person as an instrument : Irick v. Black, 2 C. E. Greene. As payment by a surety is treated as a purchase in furtherance of equity, so payment by the principal will operate as an extinguishment, if con- struing it as a purchase would oppress the surety. It is a familiar principle, that where an act is consistent with a rightful purpose, the doer shall not allege that his intent was wrongful if the effect will be injurious. In Kinley v. JSill, 4 W. & S. 426, where a surety paid the amount of a mortgage out of trust funds in his hands belonging to the principal, and then sold the instrument, it was held that the purchaser acquired no title. The same principle was applied in Bartlett v. Lang, 4 Alabama, 689 ; and Logan v. Reynolds, 21 Id. 56. In the case last cited, a third person paid a judgment against a firm with money belonging to one of the partners, had it marked to his use, and issued an execution which was levied on the partnership goods. Dargen, C. J., said, that where a judgment is paid by one who is a principal in the debt, and as such bound to pay, he cannot by obtaining an assignment of the judg- ment, keep it alive in order to coerce payment from his co-principals, and he will not be permitted to do that in the name of another which he would not be entitled to do in his own. So the case of Jones v. Davids, 4 Russell, 217, shows that an obligor cannot rebut the presumption of payment by taking an assignment of the bond. It seems that payment by a guarantor does not extinguish the debt even at law, at all events where he insured the obligation subsequently at the request of the creditor. Where a man does that which he agreed to do, the contract is fulfilled; but if he fails, the breach is not less complete because a stranger paj^s the money or furnishes the goods. Such a substituted performance will not preclude the right of suit, although it may entitle 132 CONTRIBUTION. — STJBEOGATION. the guarantor to subrogation. To operate as payment irrespectively of intention, the tender must be made at the day and by the debtor, or on his behalf. Payment after the day may take effect as satisfaction when such is the design, which may be inferred when the money comes from one who is equally bound. But such an inference cannot be drawn when the payment is made by a third person in pursuance of a collateral obligation. See Kington v. Kington, 11 M. & W. 233; 1 Smith's Leading Cases, 634, "I Am. ed.] It was decided in Gopis v. Middleton, contrary to what was formerly considered to be the law, that a surety, pajdng off the bond debt of the principal, was in the administration of his assets merely a simple contract, and not a specialty creditor. See also Jones v. Davids, 4 Russ. SIT. Where, however, a surety paid the debt due from a defaulter to the Crown, the Court of Exchequer would allow him to stand in the place of the Crown : Regina v. Salter, 1 H. & N. 2T4 ; Begina v. Rohinson, lb. 275, n. According to the law of Scotland the surety has always been entitled to call upon the creditor for a surrender or assignment of all separate and collateral securities obtained by him for the debt, his right not being limited by the exception introduced or approved of by Gojns v. Middleton and Hodgson v. Shaw. " The equity and propriety of the Scottish rule" are by the Mercantile Law Commissioners stated to be " obvious, inasmuch as the surety obtains much aid in operating his relief from the hardship of having been compelled to pay another party's debt, and yet no detriment is thereby inflicted on any other party." (Mercantile Commission, Second Report, 1855, p. 13.) And, in accordance with their recommendation, the law of England upon this subject has been assimilated to that of Scotland by the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 9T), which enacts, that "Every person who, being surety for the debt or duty of another, or being r*im"I *'^^^^® '^'^^^ another for any debt or duty, shall pay such debt -'or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall, or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty ; and such person shall be entitled to stand in the place of the creditor, and to use all the remedies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action or other proceeding at law or equity, in order to obtain from the principal debtor, or any co-security, co-contractor, or co-debtor, as the case may be, indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty ; and such payment or performance so made by such surety shall DERINfl V. EARL OF WINCHELSEA. 183 not be pleadable in bar of any such action or other proceeding by him : Provided always, that no co-surety, co-contractor, or co-debtor, shall be entitled to recover from any other co-surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, such last-mentioned person shall be justly liable." Sect. 5. See Allen v. Be Lisle, 5 W. R. 158, V. C. S. A debtor who has paid the whole debt, recovered under a judgment against himself and his co-debtors, has a right to an assignment of such judgment. See Batchelor v. Lawrence, 9 C. B. (N. S.) 543, where, in an action by a co-debtor against the judgment creditor, refusing to make such assignment, it was held by the Court of Common Pleas, that a plea that the plaintiff was taken in execution on the judgment, and the judgment was satisfied, by the payment of the plaintiff, was a bad plea. The act is applicable to a contract made before the passing of the act, where a breach of it has taken place and a payment has been made by a surety or co-debtor under such contract after the passing of the act : Lockhart v. Beilly, 1 De Gr. & Jo. 464 ; In re Cochran's Estate, 5 Law Rep. Eq. 209. Where, however, a surety upon a second bond, given by him as a col- lateral security for a debt secured by the original bond of his principal, paid off the debt, he would, even under the old law, have been entitled to an assignment from the creditor of the original bond ; for the original bond still remained as an existing security ; and the surety, therefore, upon an assignment of it, ranked as a specialty creditor against the assets of the principal debtor. Thus, in Hodgson v. Shaw, 3 My. & K. 183, "A. and B. executed a joint and several *bond, to secure r-^,, ,-, a sum of money with interest to W. Subsequently to the deaths '- of A. and W., the executors of W. obtained from B. as principal, and from C. as surety, another bond, to secure a part of the money then due on the original bond, with interest. No payments were ever made in respect of the first bond ; but after C.'s death the second bond was paid off out of C.'s estate, and his representatives thereupon procured the original bond to be assigned to them : it was held, in a suit to admin- ister the estate of A., that C.'s representatives were entitled, by virtue of the assignment, to rank as specialty creditors of A.'s estate, in respect of the payments made by C. or his estate on the second bond, to the extent of the penalty in the assigned bond : " and see Done v. Walley, 2 Exch. 198. In many other cases, the surety paying the debt will have a right to stand in the place of the creditor. Tims, where the creditor has proved I the debt against the estate of the principal, and the surety afterwards / pays him the debt, the creditor will be held a trustee of the dividends for the surety : Ux parte Bushworth, 10 Ves. 409 ; Wright v. Morley, 11 Ves. 12 ; Watkins v. Flanagan, 3 Russ. 421. So also it is now the settled law that a surety may compel the creditor to go in and prove 134 CONTRIBUTION. — SUBROGATION. the debt under the bankruptcy of the principal debtor, and if the surety pays the whole, the creditor will be a trustee of the dividends for him : Ex parte Rushworth, 10 Ves. 414. "A surety, moreover, as soon as his obligation to pay becomes absolute, has a right in equity to be ex- onerated by his principal. Thus, in an action by the payee of a joint and several promissory note against one who, to the knowledge of the paj^ee, joined in it as a surety only, it is competent to the surety, by way of equitable defence, to plead a special plea of a set-off due from the payee to the principal, arising out of the same transaction out of which the liability of the surety arose: Bechervaise v. Lewis, 7 L. E. C. P. 372 ; and see and consider In re Jeffery's Policy, 20 W. R. (V. C. M.) 857." As to the rights of sureties under successive Bankruptcy Acts, 49 Geo. 2, c. 121, s 8; 6 Geo. 4, c. 168, s. 8; The Bankruptcy Act, 1849, s. 173 ; and the Bankrui^tey Act, 1869, s. 173. See Robson on Bank- ruptcy, p. 215. So, where executors pay a debt for which the testator was liable as surety for a legatee, they will have a lien upon the legacy for the sum so paid, in priority to a mortgagee of the legacy : Willes v. Greenhill, 29 Beav. 376. It may be here mentioned that when an executor, who has joined as surety with his testator, pays the amount of the debt after the testator's death, he is entitled to retain the amount out of the testator's assets as against all creditors of equal degree : Ew parte Boyd, 13 W. R. (L. C.) 419. A surety for a part of a debt is not entitled to the benefit of a security given by the debtor to the creditor at a different time, in a distinct transaction for another part of the debt : Wade v. Coope, 2 Sim. 155. Where a surety gets rid of and discharges an obligation at a less sum than its full amount, he cannot, as against his principal, make himself a creditor for the whole amount, but can only claim what he has actually paid in discharge of the common obligation : Seed v. Norris, 2 My. & Cr. 361, 375. It has been uniformly declared, gard to co-sureties being, that and fully acted upon, in the Courts equality is equity among persons of Chancery in this country, that standing in the same situation : the claim for contribution among M^Mahon, &c. v. Fawcett, &c., 2 co-sureties, as well as the claim for Randolph, 514, 529 ; Moore v. indemnity on the part of the surety Moore, 4 Hawks, 358, 360 ; Moore against the principal, is founded, v. Isley, 2 Devereux & Battle's not upon contract, but upon a Equity, 872, 373 ; Allen v. Wood, principle of natural equity and 3 Iredell's Equitj^, 386 ; Screi;eK v. justice ; the maxim adopted in re- Joyner, Ex'r, and others, 1 Hill's DBEING V. EAEL OF WINCHELSEA, 135 Chancery, 252, 260, 261 ; M^Kenna V. George, 2 Richardson's Equity, 15, 1"! ; Breckenridge v. Taylor, 5 Dana, 110, 112 ; Mills v. Hyde, 19 Vermont, 60, 64 ; Strong et al. v. Mitchell et al.. Id. 644, 64Y ; Craig & Angle v. Ankeney, 4 Gill, 225, 231 : " and the solidity and neces- sity of this doctrine," said Chan- cellor Kent, in Campbell v. Mesier, 4 Johnson's Chancery, 334, 338, " were forcibly and learnedly illus- trated by Lord Ch. Baron Eyre in the case of Bering v. Earl of Winchelsea ;" and the same prin- ciple now prevails at law : Harris V. Ferguson, 2 Bailey, 391, 400 ; Norton v. Coons, 3 Denio, 130, 132. This equity springs up at the time the relation is entered into, and is consummated when the surety has paid the debt : Wayland v. Tucker et als., 4 G-rattan, 268. The prac- tice of subrogation, or substitu- tion, or the cession of remedies, is borrowed from the civil law ; and, under the guidance of Chancellor Kent, has probably gone further in this country than in England. It is the creature of equity,' and is administered so as to secure real, essential justice, without regard to form: Enders, Sc, v. Brune, 4 Randolph, 438, 441 ; Douglass v. Fagg, 8 Leigh, 588, 598. It may be convenient to con- sider, first, the claim of a surety for indemnity from his principal, and afterwards, the claim for con- tribution among co-sureties ; and to speak of these, first, in equity, and then at law. At law, a surety has no remedy until he has paid the debt : Bon- ham T. Galloway, 13 Illinois, 68 ; Ponder v. Garter, 12 Iredell, 32 ; but in equity, as soon as the debt has become payable, he may file a bill, under certain conditions, to compel payment of it by the prin- cipal, in order that he may be relieved from responsibility ; 2 American Lead. Cases, 412, 5 ed. : Banelaugli v. Hayes, 1 Yernon, 189 ; Nishet v. Smith, 2 Bro. C. C. 519, 582; Pride v. Boyce, Rice's Eq. 216, 281 ; Bishop v. Day, 13 Vermont, 81, 88 ; Hoffman v. John- son, 1 Bland, 103, 105 ; Stevenson V. Taverners, 9 Grattan, 398 ; Bice V. Downing, 12 B. Monroe, 44 ; Wetzel V. Sponsler, 6 Harris, 460 ; Whitridge v. Durkee, 2 Maryland, Ch. 442 ; Purviance v. Suther- land, 2 Ohio, N. S. 418 ; Irick v. Black, 2 C. E. Greene, 189 ; al- though it seems to have been thought in Lee v. Griffin, 31 Mis- sissippi, 632, that this equity can- not be enforced without paying the debt or bringing the money into court. It has also been held, that where j udgment has been obtained against the principal and the surety, and the former is insol- vent, the latter, before payment, may file a bill to compel the dis- charge of the debt out of the prin- cipal's estate in the hands of third persons : Stump v. Rogers, 1 Ohio, 553 ; Jf' Connell v. Scott and others, 15 Id. 401 ; see, also. Green et al. V. Crochett et al., 2 Devereux & Battle's Equity, 390, 393. There are also special cases, in which the surety may compel the creditor to resort to the securities and liens which he holds, before coming upon the surety ; Hayes v. Ward, 4 Johnson's Chancery, 123, 132 ; 136 CONTRIBUTION. ■SUBROGATION. Schroeppel v. Shaw, 5 Barbour's S. Ct. 580, 589 ; Vartie v. Under- wood, 18 Id. 561 ; Kentv. Matthews et al., 12 Leigh, 514, 585 ; Railroad Go. et al. V. Glaghorn et al. ; Irick V. Black, 2 C. E. Greene, 189 ; 1 Spear's Equity, 54T, 561 ; but this is where speedy, direct and certain redress can be had upon the secu- rity, and, then, only under pecu- liar circumstances ; 2 American Lead. Gas, 412, 418,5th ed. ; Gary V. Gannon, 3 Iredell's Equity, 64, 68 ; Morris v. M^ Anally, 43 Cald. 304 : see post, vol. 2, note to Aid- rich V. Gooper. When the surety has paid the debt, equity has original jurisdic- tion to compel the principal to re- imburse him ; Moore, &c. v. Young, 1 Dana, 516, 517 ; Thomas v. Beck- man, 1 B. Monroe, 29, 30 ; Partlow V. Lane, 3 Id. 424, 425 ; Baxter v. Moore, 5 Leigh, 219, 221 ; The Wesley Ghurch Y. Moore, 10 Barr, 273. So, also, where the land of the surety is taken in execution and sold after his decease, his heirs may file a bill for indemnity, or, perhaps, maintain assumpsit for Inoney paid ; The Wesley Ghurch V. Moore. Moreover, as soon as the surety has paid the debt, an equity arises in his favor to have all the securi- ties, original and collateral, which the creditor holds against the per- son or property of the principal debtor, transferred to him, and to avail himself of them as fully as the creditor could have done : for the purpose of obtaining indem- nity from the principal, he is con- sidered as at once subrogated to all the rights, remedies and securi- ties of the creditor ; as substituted in the place of the creditor, and en- titled to enforce all his liens, priori- ties, and means of payment, as against the principal, and to have the benefit even of securities that were given without his knowledge ; see Lidderdale v. Robinson, 2 Brockenbrough, 160, 167; S. C. 12 Wheaton, 594, 596; M'Mahon V. Fawcett, 2 Randolph, 514, 530; Hampton v. Levy, 1 M'Cord's Chancery, 107, 117 ; Perkins v. Kershaw, 1 Hill's Chancery, 344, 351 ; Railroad Go. et al. v. Glag- horn et al., 1 Spear's Equity, 547, 561 ; Loud v. Sergeant, 1 Edwards, 164, 168 ; Elwood v. Deifendorf, 5 Barbour, 399, 413 ; Lathrop's Appeal, 1 Barr, 512, 517 ; Atwood v. Vincent, 17 Connecticut, 576, 583 ; Hardcastle v. Gommercial Bank of Delaware, 1 Harrington, 374, 377 ; note, Gino v. Vance, 4 Clarke, 434, 441 ; York v. Landis, 65 North Carolina, 557 ; Burk et al. V. Ghrisman et al., 3 B. Mon- roe, 50 ; Gullem v. Emanuel, 1 Ala- bama, 23, 28 ; Brown v. Lang, 4 Id. 50, 53 ; Gommercial Bank of Lake Erie v. Western Reserve Bank, 11 Ohio, 444, 449; Miller V. Woodivard & Thornton, Adm'rs, 8 Missouri, 169, 175 ; Buthald v. Buthald, 46 Missouri, 557 ; Hill v. Manner, 11 Grattan, 522 ; Dechard V. Edwards, 2 Sneed, 93 ; Dodier V. Lewis, 27 Mississippi, 679 ; Lewis V. Palmer, 28 New York, 271; Kloppy. The Lebanon Bank, 10 Wright, 88. " This right of the surety," says Chancellor Kent, in Hays V. Ward, 4 Johnson's Chan- cery, 123, 130, "stands not upon contract, but upon the same prin- BERING V. EARL OF W I N C H E L S E A . 137 ciple of natural justice, upon which one surety is entitled to contribu- tion from another :" and the same thing is said in 1 Comstoek, 599, 600. Payment by one who stands in the relation of a surety, although it may extinguish the remedy, or discharge the security, as respects the creditor, has not that eflFect as between the principal debtor and the surety. As between them, it is in the nature of a purchase by the surety from the debtor ; it .operates an assignment in equity of the debt and of all legal pro- ceedings upon it, and gives a right in equity to call for an assignment of all securities ; and, in favor of the surety, the debt and all its obligations and incidents, are con- sidered as still subsisting. [Every one is a surety within these principles, who incurs a liability in person or estate at the request and for the benefit of another, with- out sharing in the consideration ; Lewis V. Palmer, 28 New York, 271 ; see the Wesley Church v. Moore, 10 Barr, 2 American Lead- ing Cases, 451, 5th ed. A man who makes himself answerable for, or guaranties a debt subsequently, is, therefore, as much entitled to the subrogation as if his lia- bility arose from, or was cotempo- raneous with the original obliga- tion; Gottr ell's Appeal, 11 Harris, 294 ; because it is an implied con- "dition that the guarantor shall be entitled to the remedies of the creditor on payment.] These principles may be illus- trated, in respect to (1) Bonds, (2) Judgments, (3) Liens upon land, (4) Mortgages and other real se- curities in which the title passes ; and apply equally to securities in which the surety is jointly bound with the principal, and to those which are cumulative and collateral to the original debt. The distinc- tion adopted in Copis v. Middle- ton, that equity will not subrogate the surety, in those cases in which payment discharges or extinguishes the security at law, which reaches the case of bonds and judgments binding the surety jointlj^ with the principal, and probably the case of bonds and judgments constituting or merging the debt, though the surety be not bound by them, and also the case of mere liens upon land, where the title does not pass, has, in general, not been adopted in this country ; on the contrary, with the exception of the Courts of Alabama, Vermont, and North Carolina, it appears to be univer- sally and firmly settled, that al- though the security or lien be ex- tinguished at law, yet for the benefit of the surety by whose money or property the creditor has been sat- isfied, it continues equitably in full force. I . In regard to Bond debts.] — It is not a principle of equity, in this country, that a surety, discharging a bond debt, is in all cases con- sidered as in the position merely of a simple contract creditor of his principal ; wherever the distinction is of any benefit to the surety, — wherever a bond has any priority over a simple contract, — as, where the payment is after the principal's death, the suretj^, upon payment, will be regarded as holding the place of the bond creditor, and en- 138 CONTRIBUTION, — SUBROGATION. titled to all the advantages which such a claimant has over simple contract creditors ; Smithv. Swain, 1 Richardson's Eq. 112. This has been repeatedly decided in Vir- ginia. At law, no doubt, a surety paying off a bond debt becomes only a simple contract creditor ; JDupuy et al. v. Southgates, 11 Leigh, 92, 9t ; see also U. S. v. Preston & Bunker, 4 Washington's C. C. 446, 452 ; Carroll v. Bowie, *l Gill, 34 ; and where the bond is paid off by the surety, while the principal is alive and solvent, in which case the distinction is of no importance, as there is then no su- perior dignity in bond debts, the surety will be considered in equity, as what he is at law, only a simple contract creditor ; per Tucker, P., in Powell's Ex'ors v. White and others, 11 Leigh, 309, 324; but after the principal's death, a bond creditor has, in Virginia, certain rights beyond a simple contract creditor ; a right to charge the heir, and a right of priority in the ad- ministration of personal assets ; and to these rights, a surety, upon payment of the debt, has an equity to be subrogated. The proper statement of the doctrine appears to be, that the surety is in equity what he is at law, merely a simple contract creditor, but entitled to the security of the bond, as a means of reaching a class of assets upon which otherwise he would have no claim, viz., those appro- priated to bond debts. Accord- ingly, when a surety pays off a bond debt, after the principal obli- gor's death, he has a right in equity to stand in the place of the obligee, and to insist on all his claims and advantages ; Eppes and others v. Randolph, 2 Call, 125, 188; Tinsley v. Anderson, 3 Id. 329 ; West v. Belches, 5 Munford, 187, 194 ; M'-Mahon, &c. v. Faw- cett, &c., 2 Randolph, 514, 533. And the ground of this principle is forcibly and satisfactorily illus- trated by Tucker, P., in Watts et al V. Kinney et ux., 3 Leigh, 2T2, 294. " The whole train of authori- ties on this subject," he remarks, " is founded upon the principle of' the superior equity of the sureties, to be paid out of that fund to which their creditor might have resorted, for their relief. The surety in a bond, for the payment of which the principal has bound particular prop- erty, has a preference over all other persons, to have the debt charged upon that fund. If the principal dies, and after his death the surety pays off the bond, he has a right to demand the payment of the bond out of the assets, before the simple contract creditors, and thus to he placed in the shoes of the obligee ; because at the instant of the prin- cipal's death, the obligee had a right to demand payment out of the assets, in preference to any simple contract creditor ;. in good faith, he should have demanded such payment, instead of putting the burden on the innocent surety; in good faith, the executor should have so applied the assets. An adequate portion should have been set apart and appropriated for that debt. No simple contract creditor had, or could have by law, any claim thereto. If the executor were sued by simple contract BERING V. EARL OF WINCHBLSEA, 139 creditors, lie might plead the out- standing bond in bar of the de- mand. He might fence around an adequate portion of assets against all their assaults. Nor is the state of things changed by payment be- ing forced from the surety, or be- ing voluntarily made by him. If forced from him, a court of equity will give him redress ; it will con- sider him as standing in the shoes of the creditor, who ought to have looked to the estate of the princi- pal, instead of drawing money from the pocket of the surety ; it will consider the executor as hold- ing a certain portion of the assets, as trustee for the payment of this very debt, and hold him to the discharge of the trust in its spirit, when it can no longer be performed to the letter : and it will deny to the simple contract creditor, who has no right to these funds, the application of them to the paj-- ment of his debt. And why ? If the surety discharge the bond, or a judgment and execution upon it, is he not a simple contract creditor only ? and has not any other sim- ple contract creditor a legal right to resort to this fund, as there is now no longer any bond or judg- ment to be charged upon it ? and has he not equal equity? The answer is. No : he not only has not equal equity, but he has no equity whatever to charge a fund which in equity, and justice, be- longs to another. He has no equity to demand that money, which by law ought to have been applied to pay my debt, shall be applied to pay his. The case is the sariie, if the payment is made voluntarily by the surety. In making that payment, he is gov- erned by the law of this court. Even on entering into his engage- ment as surety, he looks to its well established principles. He knows, if he pays the debt to the obligee, he will stand in the obligee's shoes. He knows he will be subrogated to all the rights of the obligee, as they subsist at the time he makes his payment. He knows that a court of equity looks not to form but to substance ; that it looks to the debt which is to be paid, not to the hand which may happen to hold it; that the fund charged with its payment, shall be so ap- plied, whosoever may be the per- son entitled ; and that it considers a debt as never discharged, until it is discharged by payment to the proper person, and by the proper person. He knows, that that court, which permits no act of a trustee to prejudice a cestui que trust, will not permit one who stands in the relation of the credi- tor or obligee to the surety, to bar him of those rights which the prin- ciples of equity have secured to him. He is conscious that his rights do not depend upon the caprice of the creditor, or the whim of an executor, or the sense of right of other creditors, but rest upon the immutable principles of justice and equity ; and, in mak- ing his payment, he does it in the confidence, that he will be en- titled to be indemnified to the full amount, to which his creditor could have charged the assets of the prin- cipal." In the more recent case of Powell's Ex'ors v. White and 140 CONTRIBUTION. SUBROGATION. others, 11 Leigh, 309, the decis- ions in Copis V. Middleton, and Jones V. Davids, were thoroughly examined in the Court of Ap- peals, and the Virginia practice was vindicated against the au- thority of Lord Eldon, with dis- tinguished and convincing ability. See also Wheatley's Heirs v. Cal- houn, 12 Id. 265, 2'J4. The prin- ciple of these Virginia cases has been fully sustained by the Circuit and Supreme Courts of the United States ; Lidderdale v. Bohinson, 2 Brockenbrough, 160; S. C. 12 Wheaton, 594. In South Carolina, the same practice is established. In Pride v. Boyce, Rice's Equity, 276, the doctrine of Copis v. Mid.- dleton was discussed, not indeed where the surety had paid the debt, but where upon the bonds being due he had filed a bill to compel its payment by the principal's ad- ministrator ; and it was decided that he was entitled to have it paid according to its priority as a bond debt. In Schultz v. Carter et al., 1 Spear's Equity, 534, 543, the point was expressly deter- mined. There, a surety in two joint and several bonds, secured by mortgage, both of which were due and unpaid at the principal's death, had, after his decease, been compelled to pay one, and was sued upon the other : he insisted that he was entitled to reimburse- ment as a bond creditor out of the assets of the principal's estate, and also to have the benefit of the mortgage ; and the court held that he was entitled to both of these advantages. " The result of the cases," said Dunlrin, Ch., " is, that a surety who pays a debt of a su- perior dignity, due by the estate of his deceased principal, is suf- fered to rank, in the application of assets, according to the dignity of the debt satisfied ; or, in other words, is substituted for the credi- tor who holds the prior debt, and is entitled to the benefit of any security which that creditor may have taken from the principal debtor." In New York and Penn- sylvania, also, the right of subro- gation to bonds, has been re- cognized ; see Cheesebrough v. Millard, 1 Johnson's Chancery, 409, 413; Croft v. Moore, 9 Watts, 451 ; Himes v. Keller, 3 Watts and Sergeant, 401, 404; Lathrop and Dale's Appeal, I Barr, 512. If a surety in a bond to the United States, pays the debt, he is' entitled to the same preference over the other creditors, as the United States had ; Act of 1Y99, c. ] 28, s. 65 ; United States v. Hun- ter, 5 Mason, 62, 65 ; S. C. 5 Peters, 11 i; Dias v. Bouchaud, 3 Edwards, 485 ; and see U. S. v. Preston and Bunker, 4 Washington, 446. And tliis has been recognized as a general equity ; thus where one gave his bond to the United States, for the importer of goods, and afterwards paid it, he was held to be entitled to the same priority as the United States had, in his claim upon the estate of the importer; because, it was said, equity in the matter of subrogation, considers the substance of the relation, and not its mere form ; Enders, &c. v. Brune, 4 Randolph, 438, 447 ; see also Orider v. Payne, 9 Dana, 188, BERING V. BAKL OF WINCHELSEA 141 192. In one case, however, it was held that a surety in a bond to the United States, was not entitled to the creditor's priority in his claim for contribution against his co- surety, but came in only as an ordinary creditor ; Bank v. Adger, 2 Hill's Chancery, 262, 266: but as this was grounded on Copis v. Middleton, which has been since rejected in that state, the decision is probably no longer sound. And if the debt of the principal were a preferred debt, by statute, in the administration of his estate, the surety paying the debt will be en- titled to the same preferences ; Schoolfield's Adm'r v. Rudd, &c., 9 B. Monroe, 291. 2. Judgments and Decrees.] — It is generally settled in this country, that a surety paying the debt, is entitled to be subrogated to a judgment or decree against the principal, and to have the benefit of its lien upon his land in prefer- ence to subsequent judgment credi- tors, and of its priority in the distribution of personal assets, and of being permitted to file a credi- tor's bill in his own name to obtain satisfaction out of assets which could not be reached by execution ; and this whether the judgment or- decree is against the principal and surety jointly ; Walls et al. v. Kinney et ux., 3 Leigh, 2T2, 293 ; Speiglemyer v. Crawford, 6 Paige, 254, 257 ; and see Clayson v. Mor- ris, 10 Johnson, 524 ; Thompson \. Palmer, 3 Richardson's Eq. 139 ; Dempsey v. Bush, 18 Ohio, N. S. 566; Connely v. Bourg, 16 Louis- iana Ann. 292 ; or whether the instrument upon which the surety's obligation arises, is collateral to the judgment against the principal ; Rodgers v. McCluer''s Adm'rs et als., 4 Grattan, 81 ; Cottr ell's Ap- peal, 11 Harris, 294; Mc Clung \. Beirne, 10 Leigh, 395, 400 ; in which latter case. Tucker, P., de- clared that it made no difierence that the surety was not a party to the judgment. — The doctrine of Copis V. Middleton, will not in most of the states, be applied to deprive a surety of the benefit of a judgment against the principal, and though extinguished in law, such a judgment will be kept alive for the indemnity of a surety who has paid the debt. This is established in Yirginia ; Tinsley v. Anderson, 3 Call, 329 ; in New York, Good- year V. Watson, 14 Barbour, 481 ; in Georgia, MWougal v. Dough- erty, 14 Georgia, 6*74 ; and in South Carolina, Burrows and Brown v. M^Whann and Campbell, 1 Des- saussure, 409; Perkins and others V. Kershaw and others. 1 Hill's Chancery, 344, 351 ; and though the former of these cases was a subrogation against a co-surety, the latter was against a principal debtor. In Perkins and others v. Kershaw and others, judgments had been obtained against the principal's administrators, and against the surety, for the debt, and executions issued : the surety paid, and the sheriff entered satis- faction on both executions : " In equity," said the Court, " the sureties, upon showing that they and not the administrator, paid the money, would be allowed to vacate the entry of satisfaction on the ex- ecution by the sheriff' as made by 142 CONTRIBUTION. — SUBROGATION. mistake, and to set up the judg- ment as a subsisting lien on the real estate of the deceased debtor." In Maryland and Delaware also, it is settled not only that a surety paying the debt, has a claim to be subrogated to the right of the creditor and to all his liens and securities, but that a payment by the surety operates, in itself, as an assignment, in equity, of the debt and of a judgment upon it, so as to authorize him to sue, or issue execution in the creditor's name, for his use : and though as between the surety and creditor this equit- able assignment cannot take place till the whole debt is paid, yet when it is fully paid, a partial payment by the surety will, as between him and the principal debtor, entitle him to an assign- ment pro tanto ; Norwood v. Nor- wood, 2 Harris & Johnson, 238; Sotheren v. Reed, 4 Id. 301, 309 ; Merryman v. The State, 5 Id. 423, 427 ; Hollingsioorth v. Floyd, 2 Harris & Gil. 88, 91 ; Watkins v. Worthington, 2 Bland, 509, 529 ; 'Hardcastle v. Commercial Bank of Delaware, 1 Harrington, 374, StT, 378, note. In Pennsylvania, the subrogation of a surety to a judgment against the principal is well established, and of every day occurrence; Cottrell's Appeal, 11 Harris, 294. The decisions in that state were reviewed by Kennedy, J., in Lathrop and Dale's Appeal, 1 Barr, 512, with especial reference to the doctrine in Copis v. Mid- dleton. " From the cases it would appear," he concludes, " that we have adopted the general rule, that a surety by paying the debt of his principal becomes entitled to be subrogated to all the rights of the creditor, so as to have the benefit of all the securities which the creditor had for the payment of the debt, without any exception, as well those which became extinct, at law at least, by the act of the surety's paying the debt, as all collateral securities which the creditor held for the payment of it, which have not been considered as directly extinguished by the surety's paying the debt. . . , These decisions have been made upon a supposed principle of equity, which, for the purpose of doing justice to the surety who has paid the debt, interposes to prevent the judgment, or security, which has been so extinguished at law, from being so considered as between the surety and the prin- cipal, or his subsequent lien creditors." When, moreover, the nature of the payment and the cir- cumstances, are such as to entitle the creditor to subrogation, his right cannot be defeated by the creditor, nor satisfaction entered without his consent or approba- tion ; Baily v. Brownfield, 8 Har- ris, 48. 3. Liens upon the lands of the Principal.^ — If a surety for the purchase-money, upon a sale of land which has been executed by a conveyance of the legal title, pays the debt, he is entitled to be subrogated to the vendor's lien for unpaid purchase-money, as against the vendee and purchasers from him with notice ; Kleiser, &o. v. Scott, &c., 6 Dana, 137 ; Burk et al. V. Ghrisman et al., 3 B. Mon- BERING V. EARL OF W I N C H B L S E A . 143 roe, 50 ; Ghiselin and Worthing- ton V. Ferguson, 4 Harris & John- son, 522 ; Hagruder v. Peter, 11 Gill & Johnson, 219, 228, 245 ; Welch V. Parran et al., 2 Gill, 320, 329 ; Davidson v. Carroll, 29 Louisiana Ann. 199. In like man- ner, the surety of a vendor who is compelled to repay the purchase- money in consequence of the failure of the principal to execute a con- veyance, will succeed to the right of the vendee to a specific per- formance, and have an equitable lien on the land, which he may enforce against purchasers, with notice of its existence ; Freeman V. Mehane, 2 Jones' Eq. 44 ; while a similar equity will arise when the purchase-money is paid by the surety for the purchaser ; Jordan V. Hudson, 11 Texas, 82 ; and en- title him either to enforce the eon- tract speciflcially, or aver the legal title of the seller as an heir for indemnification. Sute v. Shnei- der, 23 Missouri, 447. In Fddy V. Traver, 6 Paige, 521, the heir of an intestate had conveyed with warranty a part of the descended lands, and the administrator, after- wards, having obtained a surro- gate's order for the sale of lands for the payment of debts, sold the land which had been thus con- veyed ; and the vendee was held entitled to the benefit of the lien of the debts upon lands remaining unsold in the possession of the heir. " It is an established prin- ciple of equity," said the Chan- cellor, " that sureties, or those who stand in the situation of sureties for those for whom they pay a debt, are entitled to stand in the place of the creditor, or to be sub- rogated to all his rights as to any fund, lien or equity which he may have against any other person or property on account of the debt. . . In cases depending upon this equitable principle, as between the debtor and his sureties, it makes no difierence, except as against bona fide purchasers, or mortga- gees, that the debt has been ac- tually paid by the sureties, or out of their property, so that the creditor's lien upon the property of the principal debtor is extin- guished at law." See also Scher- merhorn v. Barhydt, 9 Paige, 30, 43 ; Kinney's Fx'ors, &c. v. Har- vey, &c., 2 Leigh, 10 ; Haffey^s Heirs v. BircheU's, &c., 11 Id. 83, 89 ; In re M'Gill, 6 Barr, 504. 4. Mortgages, and other convey- ances for the security of a debt.'] — A surety paying a debt secured by mortgage is entitled to be substi- tuted to the creditor's interest and lien under the mortgage, both where the surety is a joint-mortga- gor with the principal, and where the mortgage is against the prin- cipal's property- only, and the surety's obligation is collateral ; Loud V. Sergeant, 1 Edwards, 164, 168 ; Marsh v. Pike, 1 Sandford, 211 ; S,. C. 10 Paige, 595 ; M'Lean V. Toivle, 3 Sandford, 117 ; Loo- mer v. Wheelright, Id. 136, 261 ; Lowndes v. Chisolm, 2 M'Cord's Chancery, 455 ; Bank v. Campbell, 2 Richardson's Equity, 180, 185 ; Atwood V. Vincent, 17 Connecti- cut, 576, 583 ; Norton v. Soule, 2 Greenleaf, 341 ; Dearborn v. Tay- lor, 18 New Hampshire, 153 ; Storms V. Storms, 5 Bush. 77 ; 144 CONTRIBUTION. — SUBROGATION. and the same principle applies where lands have been conveyed by a deed of trust for the pay- ment of the debt ; Wheatley's Heirs v. Calhoun, 12 Leigh, 265, 274 ; Walker v. Crowder, 2 Ire- dell's Eq. 419, 486; Miller v. Ord, 2 Binney, 382. Alabama, North Carolina and Vermont appear to be the only states in which the doctrine of Copis V. Middleton has been adopted. In the first, it has been decided that the surety cannot avail himself of the instrument on which he is surety, after pay- ment of it, because it is extin- guished ; Houston v. The Bank, 25 Alabama, 250 ; and this has been applied to instruments under seal ; Foster v. The Trustees of the Athenaeum,, 3 Alabama, 302, 310 ; to executions on a judgment against principal and sureties ; Morrison and Givhan et al. v. Marvin, 6 Id. 19Y ; Saunders and M'Laughlin v. Watson et al., 14 Id. 199 ; and apparently with less reason to deeds of trust given as security for the payment of the debt paid by the surety, and to which he would be subrogated even in England ; Houston v. The Bank, 25 Alabama, 250. In North Carolina it was decided that a surety who had paid off a judgment against the principal and himself, became only a simple contract creditor of the principal, the judgment being, by payment, extinguished both at law and in equity ; but it was said, that if at the time of payment he had taken an assignment of the judgment to a stranger, and had not intended satisfaction of it, it would have been kept alive as a judgment, for his benefit ; Briley v. Sugg, 1 De- vereux & Battle's Equity, 366. In Vermont, there are dicta to the ef- fect that a surety paying a judg- ment can be subrogated only to collateral securities and not to the judgment itself; Pier son v. Cat- lin, 18 Vermont, IT, 85. [It is a controverted question whether subrogation is an equity which the surety may waive or assert at pleasure, or a lien attach- ing at the time of payment, irre- spectively of intention. The former seems to be the preferable opinion ; The Harrisburg Bank v. Germon, 3 Barr, 300; although the surety will not be allowed to exercise his discretion in a way to prejudice third persons ; Huston's Appeal, 19 P. P. Smith, 485. Where, for instance a judgment against a prin- cipal, and surety is paid by the surety, or out of the proceeds of his real estate, he may by satisfy- ing the judgment, or refusing to issue an execution on it against the principal, preclude those claim- ing under him as volunteers. But the holder of a subseqent judgment against the surety has an interest in the surety's equity, which no act on his part can defeat. The law was so held in Huston's Appeal, overruling The Harrisburg Bank V German. In Huston's Appeal, a judgment was obtained against a principal and surety, which bound their real estate. The appellants then obtained a judgment against the surety. He paid the judgment against the principal, and assigned it to the appellees, who were credi. BERING V. EARL OF W I N H E L S E A . 145 tors at large. The court held that the equity of the appellants was anterior to the assignment. It was the equity of a creditor who had but one fund to be subrogated to the remedies of him who had two; and as their right was higher than the surety's, it was necessarily superior to that of any one claiming under him as assignee. The rule no doubt is that payment by a surety with an intent to extinguish tKe debt will preclude the right of subrogation as it regards him, but not where the effect would be in- jurious to lien creditors, or pur- chasers. A question nearly akin to this is also a subject of dispute. The legal remedy of the surety grows out of the implied promise of the princi- pal to save him harmless. He must proceed in assumpsit, although the original obligation be under seal. The statute of limitations will therefore attach to, and may be pleaded in bar of such a demand, if more than six years have elapsed from the time of payment. And it has been contended, that as equity follows the law, such a de- fence is a sufficient answer to a claim for subrogation. This view is sustained by Finh v. Mahaffy^ 8 Watts, 384 ; and Bittenhouse v. Levering, 6 Watts & Sergeant, 190 ; but the decision was influ- enced in both instances by other considerations. In Smith v. Swain, t Richard- son's Eq. 112, the court was not- withstanding of opinion that the payment of a debt secured by a bond or other instrument under seal, puts the surety virtually in YOL. I. — 10 the position of a creditor by specialty, and beyond the reach of the statute of limitations. Such it was said would be the effect if the bond were assigned or handed over to a third person for his bene- fit, and the principle was the same when the assignment was implied. The better opinion seems to be that expressed by Rogers, J., in Bittenhouse v. Levering, that the remedy of the surety is primarily for money paid, and the right of subrogation to the bond or judg- ment a mere collateral, which will fail if the principal demand is barred by the statute of limitations, or by any other cause. A guarantor who intervenes at the request of the principal debtor, is within the rule laid down in Bittenhouae v. Levering, unless the case can be distinguished on the ground that payment by one who is not directly responsible is not satisfaction, unless it is shown to have been so designed. See Jones V. Broadhurst, 9 C. B., 113, Hess' Estate, 19 P. F. Smith, 2*72, ante, 139. But the payment of a bond by one who has assigned it with a guarantee, is ipso facto a purchase, entitling him to sue in the name of the obligee without regard to the lapse of time. For as such a pay- ment is not made on behalf of the obligor, or at his request, it does not confer a right of action against him, and there is nothing on which the statute of limitations can oper- ate. In Elkinton v. Neiomdn, 8 Harris, 281, Huston assigned a ground rent to Newman, which he guarantied. The tenant made de- fault, and Huston was compelled 146 CONTRIBUTION. SUBROGATION. to pay the arrears. He subse- quently brought covenant in the name of Newman and recovered, although more than six years had elapsed since the payment. Whatever doubt may exist on these points, it is well settled, that where the jurisdiction is concurrent, a controversy which has been adju- dicated at law, cannot be revived in equity : Fink v. Mahaffy, 8 Watts, 384. In Fink x.Mahaffy, Fink-was the surety in a judgment, and Mahaflfy the principal. He satisfied the judgment, and sued Mahaffy for money paid, laid out and ex- pended. The case was tried, and a verdict and judgment rendered for the defendant. The court held that this debarred Fink from sub- rogation to the original judgment against MahafFy. A party could not have relief in equity on a ground which had been deter- mined adversely at law. This de- cision was cited, and approved in Rittenhouse v. Levering, 6 W. & S. 190. There can be no doubt that if payment or a release is pleaded or given in evidence by the prin- cipal, and found in his favor, it will be a good answer to a bill for sub- rogation. But a judgment at law does not preclude a recourse to chancery, unless the equity alleged by the complainant is one of which the legal tribunal could have taken cognizance ; and not even then, un- less the course of procedure at law is adequate to the ends of j ustice : Klntj V. Baldiuin, 2 Johnson's Ch. 554; 17 Johnson, 384; Notes to the Earl of Oxford's Case, post, vol. 2. A judgment for the prin- cipal on a plea of the statute of limitations, is not, therefore, ne- cessarily a reason why the surety should not be subrogated to the remedies and securities of the creditor. To give birth to the relation of principal and surety as between themselves, and entitle the one to proceed against the other for in- demnity, the liability for the debt must have been assumed at the request of the principal, or result from a course of dealing to which both are parties : Lavalette v. Thompson, 2 Beasley, 2*74. It may, notwithstanding, be in- ferred from Mclntyre v. Miller, 13 M. & W. 724, that a third person who pays the amount of a judg- ment with funds derived from one of the defendants, may take an as- signment of the judgment, and use it as a means of compelling the other to contribute, ante, 139. The legal right is indisputable, and equity will not intervene unless it is abused. In this instance the debtor paid through another, with the intent to keep the debt alive ; and a payment made by him in person or professedly on his behalf, is satisfaction, although the money is advanced by a third person, on the faith of an express or implied understanding that the debt shall survive for his benefit, unless this is disclosed to the creditor and assented to by him: Eastnan v. Plumer, 32 N. Hamp. 238. The payment of a note, at or after maturity, by the maker, or by one of several makers, extinguishes the obligation under the doctrine of the commercial law. If he is a surety he may be subrogated BERING V. EARL OF WINCHELSEA. 147 to the remedy of the payee ; but he cannot put the instrument again in circulation as against the other makers ; at all events where one is a surety : Hopkins v. Scott, New Hamp. 425 The right to subrogation does not ordinarily exist between joint debtors, because they are equally liable not only to the creditor, but as between themselves : Mahaffy V. Share, 2 Penna. 361; McGor- mick V. Irwin, 11 Casey, 111,117 ; Bailly v. Brownfield, 8 Harris, 41 ; Hogan v. Reynolds, 21 Ala- bama, 56. One co-obligor, maker, or indorser, cannot therefore en- force it against another : The Bank v. Armstrong, 4 Wright, 2"? 8. It may, however, arise from a change of circumstances, throw- ing the burden primarily on one, and rendering it incumbent on him to exonerate the rest : War- ren V. Sennett, 4 Barr, 114; The Bank of Benna. v. Wenger, 1 Rawle, 303. An outgoing partner who takes a covenant from the re- maining members of the firm to pay the partnership debts and save him harmless stands in the position of a surety : Afflalo v. Foudrineir, 6 Bing. 306 ; Wood v. Dodgson, 2 M. & S. 195; Butler v. Birkey, 13 Ohio, N. S. 514 ; and may be subrogated to the reme- dies of the creditors if the cove- nant is not fulfilled : The ^tna Ins. Go. V. Wires, 2 Williams, 93 ; Morris v. Oakford; Fleming v. Beaver, 2 Rawle, 128; Butler v. Birkey, 13 Ohio, N. S. 134. The principle is the same where one of several joint purchasers parts with his interest to the others, in consideration of an agreement on their part to be an- swerable for the amount due to the vendor: Warren v. Sennett, 4 Barr, 114. When, said Gibson, C. J., "Williams took Bennett's place in the purchase, he took not only his propert}'', but his respon- sibilities, and he consequently ceased to be a surety ; for that a surety may in the course of events become a principal, is shown by The Bank of Penna. v. Winger, 1 Rawle, 303." Conversely, a prin- cipal contractor may be turned into a surety through the opera- tion of a subsequent grant or con- tract: McGormick v. Irwin, 11 Casey, 111. In McGormick v. Irwin, Pyle, Whittaker & Irwin were in part- nership. Pyle died, and Irwin transferred his share to Whittaker, subject to the debts of the firm. Pyle's administrator, Smythe, filed a bill against Irwin & Whittaker, and obtained a decree for $4,000. This was satisfied by Irwin, who thereupon asked and obtained sub- rogation against Whittaker and the sureties in a bond which Whit- taker had given during the pro- ceedings in equity, to prevent the appointment of a receiver. Strong, J., said : " The familiar doctrine of subrogation is, that where one has been compelled to pay a debt which ought to have been paid by an- other, he is entitled to a cession of all the remedies which the cred- itor possessed against that other. To the creditor, both may have been equally liable ; but if, as be- tween themselves, there is a supe- rior obligation resting on one to 148 CONTRIBUTION. ■SUBROGATION. pay the debt, the other, after pay- ing it, may use the creditor's se- curity to obtain reimbursement. The reason why subrogation is not allowed to one partner as against his co-partner, or to one merely a joint debtor, as against his co- debtor, is because that as between them, there is no obligation to pay the debt resting upon one, superior to that which rests upon the other. The doctrine does not depend upon privity, nor is it confined to cases of strict suretyship. It is a mode which equity adopts to compel the ultimate discharge of the debt by him who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay. To effect this, the latter is allowed to take the place of the creditor, and make use of all the creditor's securities, as if they were his own." " In the light of these principles, we discover no error in the charge of the Court below. It was a sub- stantial answer to all the points propounded by the plaintiff in er- ror, which arose out of the cause, and it was correct. Smythe, it is true, obtained his decree against both Irwin and Whittaker ; but the agreements between them, given in evidence, established that long be- fore the decree, as between them, the primary or superior obligation to pay the sum decreed, lay upon the latter. He had covenanted with Irwin to pay it, and the ef- fect of the covenant was to make himself the principal. Of course, Irwin, after having paid the debt, became entitled in equity to the use of Sm34he's decree, obtained against the principal, and not only to that, but to every remedy to en- force its payment which Smythe had against Whittaker's sureties, who became such after he as- sumed the superior obligation to pay." The rule is broad enough to in- clude every instance where one pays a debt for which another is primarily answerable, and that should in equity and good con- science have been discharged by him : Stevens v. Goodenough, 26 Vermont, 676 ; Lewis v. Palmer, 28 New York, 211 ; see post, vol. 2, part 1st, notes to Aldrich V. Cooper. Which of the parties to a sale is entitled to subroga- tion to a judgment or other lien on the property sold, consequently depends on whether the sale was made subject to, or free from encumbrances ; the vendor being entitled to resort to the judgment as an indemnity in the former case, and the vendee in the latter ; post, vol. 2, notes to Aldrich v. Cooper; Johnson v. White, 11 Barb. 194. A purchaser who takes subject to a mortgage which is deducted from the consideration, is primarily liable for the mort- gage debt, and bound to indem- nify the seller against it. He con- sequently becomes the principal debtor, and the vendor a surety ; Marsh v. Pike, 10 Paige, 595 ; Cornell v. Prescott, 2 Barbour, 17 ; Thompson v. Thompson, 4 Ohio, N. S. 333, 349 ; Klapworth V. Dressier, 2 Beasley, 62 ; while the opposite result will follow, where the price is paid in full, and the covenants in the deed make DEKIN& V. EAKL OP WINCHBLSEA. 149 it the duty of the vendor to dis- charge the encumbrance. It results from what has been said, that where nothing has oc- curred to vary the obligation of the parties, one co-contractor is not entitled to subrogation against another, unless he is a surety as it regards the latter. It is therefore important to determine who are sureties within this principle. The relation of suretyship grows out of the assumption of a liability at the request of another, and for his benefit. It may consequently arise, although the name of the principal does not appear in the instrument which constitutes the evidence of the debt : Moore v. The Wesley Church, 10 Barr, 273 ; Metzner v. Baldwin, 11 Minne- sota, 150 ; Gray v. McDonald, 19 Wisconsin, 213 ; or where the principal appears in the contract as the surety, and the surety as the principal ; Hull v. Peer, 27 Il- linois, 312. The execution of a note for the accommodation of the payee, renders it incumbent on him to indemnify the maker, and if judgment is obtained against the payee as an indorser, the maker may be subrogated to the judgment: SeeDaviesv. Stainbanh, 6 DeGex, M. & G. 679 ; Pooley V. Earradine, 7 E. & Bl. 481. If the equity may be disregarded by the creditor, it is clearly good between the parties : The Bank v. Walker, 9 S. & R. 229, 12 Id. 382 ; 2 American Leading Cases, 454, 5th ed. So one who gives a pledge or mortgage as a security for a loan to a third person, may file a bill to compel the latter to pay the debt : Lea v. Book, Moseley, 318 ; Rowan v. Sharp, 33 Connecticut, 11 ; and if he dies the equity may be enforced by his heirs : Moore v. The Wesley Church. See Whar- ton V. Woodburn, 4 Dev. & Bat. Law, 507. Though the money be advanced on the mortgage, and not on the credit of the person to whose use it is applied, it is still his duty to save the mortgagor harmless. Hence, a wife who mortgages her estate for the bene- fit of her husband, becomes a surety, and will be discharged if the creditor does any act tending to prejudice the right of subro- gation : Gahn v. Neimcewicz, 3 Paige, 641 ; 11 Wend. 312 ; Sheidle V. Weishlee, 4 Harris, 134 ; Vartte V. Underwood, 18 Barb. 561 ; The Earl V. The Countess of Hunting- ton, notes, post, vol. 2. In like manner, if A. and B. unite in a promise or agreement on behalf of B. and C, or to save C.'s property from execution, A. will have all the rights of a surety' against C, although the name of the latter does not appear in the instrument, or it is not legally binding on him ; Purviance v. Suth- erland, 2 Ohio, N. S. 478 ; Whar- ton V. Woodburn, 4 Dev. & Bat. Eq. 507. See Betsonier v. Bald- win, 11 Minnesota, 150. In Pur- viance V. Sutherland, and Wharton V. Woodburn, a partner gave a bond in the firm name for money which was applied to the use of the partnership, and it was held that the other partners were liable to indemnify the plaintifl' who had put his name to the instrument as a surety, although the obligee 150 CONTRIBUTION. ■SUBROGATION. could not have recovered against them at law. Strictly speaking, a surety is not entitled as such, unless he in- tervenes at tlie express or implied request of the principal : Lavalette V. Thompson, 2 Beasley, 2'?4. But it is also true, that the creditor has all the rights of an owner, and may dispose of the demand to any one whom he thinks proper. He may consequently ask for and ob- tain a guaranty from a third per- son, on the express or implied condition that the latter shall stand in his shoes on piaj'ment, and be subrogated to every lien, remedy, or security that can in anywise be made effectual for the payment of the debt. This equity is incident to the contract of in- surance, and therefore belongs of right to a guarantor. See Hughes V. Littlefield, 18 Maine, 400; Poivers V. Nash, 36 Id. 322 ; Gar- ter V. Jones, 5 Iredell Eq. 196; Talmadge v. Burlingame, 9 13arr, 210 ; Elkinton v. Newman, Peake V. Dorivin, 25 Termont, 28 ; Keath V. Goodwin, 31 Id. 268 ; 2 Ameri- can Ldg. Cases, 835, 5th ed. Un- der these circumstances, there is no privity of contract between the principal contractor and the guarantor, and he cannot maintain debt or assumpsit against them, but he may, notwithstanding, treat the payment as a purchase, en- titling him to proceed in the name of the creditor : Elkinton v. New- inan. In like manner, where a surety takes the bond of a third person as a .counter security, pay- ment by the latter will entitle him to subrogation to the remedy of the surety against the principal: Laheaume v. Sweeny, 11 Missouri, 158.] A surety, who compounds the debt, has no right at law to re- cover from the principal more than he has actually paid, or the value of property which he has given up ; Bonney v. Seely, 2 Wendell, 481 ; and, in equity, his claim is to be subrogated to the rights of the creditor, only so far as to in- demnify him ; and, therefore, even if he should take a formal assign- ment of the security, he will be entitled to no more than he has paid to the creditor ; Lawrence v. Blow, 2 Leigh, 30 ; see also HalVs Adni'r v. Creswell et al., 72 Gill & Johnson, 37, 52. " A surety stands in such a relation to his principal," said Rogers, J., in Wynn, Adm^r, v. Brooke et al., 5 Rawle, 106, 110, " that he can- not be permitted to speculate upon him." And the rule is the same in relation to contribution between co-sureties ; Hickman, &c., V. if' Curdy, 7 J. J. Marshall, 555, 560. The equity of a svirety to be subrogated to the rights which the creditor has against the prin- cipal debtor or his estate, exists as well where the surety's prop- erty only is pledged, as where he came under a personal responsi- bility ; Niemcewiez v. Gahn, 3 Paige, 614, U2, 648 ; 11 Wend. 312 ; Moore v. The Wesley Church, 10 Barr. And the creditors of a surety have the same right of subrogation which he has ; Neff V. Miller, 9 Barr, 348, 350. It is onlj' in cases where the BERING V. EARL OF WINCHELSEA. 151 person paying the debt stands in the situation of a surety, or is compelled to pay, in order to pro- tect his own interests, that a court of equity substitutes him in the place of the creditor, as a matter of course, without any special agreement ; Janny v. Ste- phen, 2 Patton & Heath, 11. A stranger paying the debt of another will not be subrogated to the creditor's rights, without an agreement to that effect ; Swan T. Patterson, T Maryland, 164 ; The Bank of the United States V. Marston, 2 Brocken- brough, 254 ; Burr v. Smith, 21 Barbovir, 262 ; such a payment absolutely' extinguishes the debt and security ; Sandford v. McLean, 3 Paige, 117, 122; Banta V. Garmo and others, 1 Sandford, 384 ; Wilkes v. Harper, 1 Corn- stock, 586 ; The Bank of the United States et al. v. Winston's Executors et al., 2 Brockenbrough, 252, 254 ; Douglass v. Fagg, 8 Leigh, 588, 602. [This statement of the law must be taken with these qualifications : First, that a payment by a third person will not extinguish the debt, unless it is made on behalf of the debtor, and authorized or ratified by him ; Belshaw v. Bush, 11 C. B. 191 ; Kemp v. Balls, 10 Exchequer, lOT ; Simpson v. Ug- ginton, lb. 845, 1 Smith's Ldg. Cases ; Merriman v. -The State, 5 Harris, 602, 638, Tth ed. ; 1 Jolm- son, 423 ; Whitney v. The In- dependence M. Ins. Co., 15 Mary- land, 291, 314 ; and next, that it may operate as a purchase ">f ^the debt, if such is the deaig.v with which the money is given and received ; Carter v. Jones, 5 Ire- dell, 193. A man cannot acquire a right to sue me by paying my creditor, but he may be entitled to proceed in the name of the credi- tor. The consent of the debtor is not necessary to the validity of such a transfer, because the right of property is in the creditor, who may deal with it as he thinks fit. It follows that a man who guarantees a debt at the instance of the ob- ligee, and for a consideration moving from him, will have all the rights of a surety, inclu- ding that of subrogation against the obligor, although he assumed the obligation without his knowl- edge or assent ; Matthews v. Aiken, 505, 1 Comstock, 595 ; Peake v. Dorwin, 25 Vermont, 28 ; Talmadge v. Burlingame, 9 Barr, 212; 2 Am. Ldg. Cases, 452, 5th ed. So, where the vendor of a rent charge guarantees the pur- chaser, and is subsequently com- pelled to pay the rent, the pay- ment will operate as a purchase, entitling him to proceed in the name of the vendee against the owner of the land ; Elkinton V. Newman, 8 Harris, 281. In this case, Huston conveyed a ground rent to Newman, with a guaranty. Elkinton, the terre- tenant, made default, and a judg- ment was obtained on the guaranty against Huston, and paid by liim, and it was held that he might sue Elkinton on the covenants in the ground rent deed. The question whether a pay- ment by a surety operates as a jiurchase, is, however, one of in- 152 CONTRIBUTION. -SUBROGATION. tention ; and although the natural presumption is that he means to keep the debt alive; Neilson v. Fry^ 16 Ohio, N. S., 552, no such inference is possible in the face of an explicit declaration to the con- trary ; See Brown v. Lang, 4 Ala. 50 ; Houston v. The Bank, 25 Id. 250 ; Rittenhouse v. Levering, 6 W. & S. 190, 199; Kuhn v. North, 10 S. & R. 399. The ques- tion should therefore be left to the jury, with instructions to find in favor of the right to subroga- tion, unless it appears unequivo- cally that the surety meant to satisfy the demand, not only as it regarded himself but in its bearing on the principal debtor; Croft V. Moore, 9 Watts, 451, 455 ; Tlie Rockingham Bank v. Glag- gett, 9 Poster, 292. It was, not- withstanding, held in Moore v. Campbell, 36 Vermont, 361, that if the surety pay the debt with- out stipulating that it shall be kept alive, the presumption is in favor of extinguishment. The court said that where the surety pays through a third person to whom the debt is assigned, the transaction will be construed as a purchase ; The JStna Ins. Go. v. Wires, 28 Yermont, 95. And so, perhaps, where he pays himself and takes an assignment ; Edgerly V. Emerson, 3 Foster, 555. But that if he pays in person, and nothing is said, it is satisfaction. This opinion is not tenable because subrogation, like contri- bution, is an equity which does not depend on contract, although it may be rebutted by evidence that such was not the design. Where, however, the surety in a bond paid the debt, and tore off the seal, the court held that as the instrument was gone at law, there was nothing to which the surety could be subrogated ; Rittenhouse V. Levering, 6 W. & S. 190, 199.] In general, a surety is not en- titled to subrogation until he pays the debt in fall ; and if such pay- ment has not been made, the credi- tor will be left in the full control and possession of the debt and of the remedies for its recovery ; The Bank of England v. Tarleton, 23 Mississippi, 182; Lee v. Grif- fin, 31 Id. 632; Grove v. Brien, 1 Maryland, 438 ; The Nepiune Ins. Go. V. Dorsey, 3 Mar34aud, Ch. 334, 433 ; Swan v. Patterson, t Maryland, 164 ; Rolling sworth v. Floyd, 2 Harris & Gill, 81 ; Got- tr ell's Appeal, 11 Id. 294. J [It should be observed, that as subrogation is the creature of equity, it will never be enforced against the superior equities of third persons ; Patterson v. Pope, 5 Dana, 241; Erb's Ajopeal, 2 Penrose & Watts, 296 ; Goswiler's Estate, 3 Id. 200 ; Himes v. Keller, 3 Watts & Sergeant, 401, 404; Houston V. The Bank, 25 Ala- bama, 260 ; Kyner v. Kyner, 6 Watts, 221, 22T ; Bank of Penn- sylvania V. Potius, 10 Id. 148, 152; Crump et al. v. M'Muriry, 8 Mis- souri, 408, 413; Union Bank of Maryland y.' Edwards, 1 Gill & Johnson, 346, 365 ; Hardcastle v. Commercial Bank of Delaware, 1 Harrington, 314, 318, note; nor to the prejudice or injurj' of the creditor, and therefore not until the creditor is fully paid and satis- DEEING V. EAKL OP WINCHELSEA. 153 fled ; Sollingsworth v. Floyd, 2 Harris & Gill, ST ; Swan v. Pat- terson, t Maryland, 164, ante. In Lee v. Griffin, 31 Mississippi, 632, where the creditor held a mortgage as security, the court refused to decree a foreclosure at the instance of the surety, because payment was essential to the right of subrogation. The right of the surety to insist that the obligation shall be paid when due, is notwith- standing recognized in England and the United States ; and some of the courts hold that the credi- tor may be compelled to collect the debt, or lose the power of recourse against the surety : Pain V. Packard, 13 Johnson, 114; King v. Baldwin, 2 Johnson, Ch. 554 ; Vl Johnson, 384 ; 2 Ameri- can Leading Cases, 414, 5th ed. It was accordingly said in Rice v. Downing, 12 B. Monroe, 44, that the surety might, on making a payment on account, or partial payment, or although nothing had been paid, require the creditor to proceed forthwith against the principal, ante, 135 ; and it is plain that the distinction between this and subrogation is extremely thin : the one being a right to sue in the name of the creditor, the other to compel the creditor to proceed by suit, and the object in both cases being to protect or indemnify the surety.] The principles, and practice in chancery, in regard to contribution among co-sureties, are similar in their nature to those relating to the indemnity of the sureties by the principal. One surety who has paid the debt, or has paid more than his ratable share, is entitled to re- cover contribution, in equity, from his co-sureties ; and where all are solvent, each is liable for his pro- portionate share ; Presstonv Pres- ton et als., 4 Gratton, 89, 90 ; and contribution may be recovered in equity from the estate of a de- ceased surety, for a payment made after his death: M'Eenna v. George, 2 Richardson's Equity, 15, lY; Wood V. Leland and 0!;7i6rs,lMetcalf, 387,389; though the contrary was held. Archer, J., dissenting, in Waters v. Riley, 2 Harris & Gill, 306, 311, 314. If one surety is insolvent, his share will in equity be apportioned amongst the solvent sureties ; Burrows and Brown v. M^ Wh.ann and Campbell, 1 Desaussure, 409, 424 ; Breckinridge v. Taylor, 5 Dana, 110, 111; Hilton v. Crist, Id. 384 ; except where the surety, seeking contribution, has himself been the cause of the insolvent surety's share not being made out of his estate ; Preston v. Preston et als.; and the departure of a surety from the state is, in respect to the liability of the other co- sureties for his share, equivalent to his insolvency : M'Kenna v. George, 2 Richardson's Equity, 15, 18 ; Bosley v. Taylor, &c., 5 Dana, 157. But a surety cannot compel a contribution from his co-sureties until he has paid the debt ; Wood v. Leland and others ; nor unless the principal be insol- vent, or at least unless it appear that due diligence has been used, unsuccessfully, to obtain from him the sum claimed; M' Coronach's 154 CONTRIBUTION. SUBROGATION. Administrator v. Obannon's Exe- cutor and Devisees, 3 Munford, 484, 48*7 ; Daniel v. Ballard, 2 Dana, 296, 297 ; Morrison v. Poyntz, Y Id. SOT ; Rainey v. Yar- borough, 2 Iredell's Equity, 249, 251; Allen v. Wood, 3 Id. 386, 388: "the co-surety," said the court, in the last of these eases, " is bound to answer only in the place of his principal, and, if he is able, it is the duty of the surety, who has paid the debt, to look to him ; if he is not able, he then, and only then, has a right to seek his redress from his co-surety. Nor can a co-surety speculate in the debt to the disadvantage of his co-sureties, their liability de- pending'i in every instance, on what he has actually paid, and not on the amount of the debt or obli- gation ; Tarr v. Ravenscraft, 12 Grattan, 642 ; Edgerly v. Emer- son, 3 Foster, 555 ; The Bank of Mobile V. Robertson, 19 Alabama, 798. But this right of mutual contri- bution exists only among those who are co-sureties; that is, are sureties for the same thing, and are bound for the discharge of the same duty. And in determining whether different sets of sureties, are, in reality, co-sureties, and en- titled to contribution among one another, equity has respect to sub- stance and not to form — to the en- gagements which the sureties have entered into, and not to the instru- ments by which their engagements are manifested. If several per- sons, or several sets of persons, enter into engagements of surety- ship, which are the same in their legal operation and character ; that is, if they become sureties for the same duty, or debt, of, to, and for the same persons, though by differ- ent instruments, at different times, and without a knowledge of the obligations of each other, they will be bound to mutual contribution in equity ; Breckinridge v. Tay- lor, 5 Dana, 110, 112; Daniel v. M'Rae, 2 Hawks, 590, 604 ; dicta in Harrison v. Lane et al., 5 Leigh, 414, 417 ; in Langford's Ex''or V. Perrin, Id. 552, 558 ; and in Screven v. Joyner, Ex'r, and others, 1 Hill's Chancery, 252, 260, 261; Craig & Angle v. An^ keney, 4 Gill, 226, 232; Butler. v. Birkey, 13 Ohio, N. S. 514; Armitage v. Pulver, 37 New York, 494. Thus, if there be several sureties in an official bond for the"' conduct of a sheriff, guar- dian, or cashier, and, at a subse- quent time, another bond with sureties for the general conduct of the person, in the same form with the previous one, be given, all the sureties in both bonds are liable to contribution among one another ; Bell v. Jasper, 2 Ire- dell's Equity, 597 ; M'Kenna v. George, 2 Richardson's Equity, 15, 17, 18 ; Breckinridge v. Tay- lor, 5 Dana, 110 ; Bosley v. Tay- lor, &c.. Id. 157 ; Harris v. Fer- guson, 2 Bailey, 397, 401. And where a note with the names of certain persons upon it, who stood in the relation of co-sureties for the maker, has been offered for discount, and not been satisfac- tory, the name of anotlier person has been procured, who also be- comes a surety for the maker, all BERING V. EARL OF WINCHELSEA. 155 these persons are co-sureties with one another, and subject to mutual contribution, though the earliest sureties had no knowledge of the last's becoming a surety ; Stout v. Fawse, d;c., 1 Robinson's Virginia, 169 ; Warner v. Price, 3 Wendell, 89Y ; Norton v. Goons, 3 Denio, 130 ; 2 Selden, 33 ; Woodworth v. Bowers, 5 Indiana, 2'? 7 ; Sisson Y. Barrett, 6 Barb. 99; 2 Corn- stock, 406 ; see also M'Neil v. Sandford, 3 B. Monroe, 11, 12. " If the suretyship," said Stanard, jr., in Stout r. Vause, &c., " be sub- stantially and in its nature that of one of several original sureties, on the payment under its obligation, the duty of contribution attaches to the other sureties." It was said in like manner in Neil v. Sand- ford, that the mere circumstance that the last obligor did not sign until three months after the other, was altogether insufficient to qualify the legal, import of the contract, or show that he was a collateral guarantor instead of a co-surety. And whatever form the relation of the several sureties maj"^ bear upon the face of the in- strument, parol evidence is admis- sible in equitj^ to show that they were in fact co-sureties for the same thing. Where successive en- dorsers all endorse for accommo- dation of the maker, though at different times, and without com- munication or mutual understand- ing, they are in equity co-sureties, subject to common contribution; Daniel v. iPRae, 2 Hawks, 590 ; and evidence is admissible to show that successive endorsers sign for accommodation, and thus to render them subject to contribution ; Love V. Wall, 1 Id. 313. It has, notwith- standing, been held, that accommo- dation endorsers, like endorsers for value, are answerable in the inverse order of their signatures, unless they sign at the same time, or in pursuance of a mutual agreement ; M'Neily v. Patchin, 23 Missouri, 40, 43 ; Dunn v. Wade, lb. 20T ; Williams v. Bosson, 11 Ohio, 67; M'Donald v. Magruder, 3 Peters, 474. The question is one of in- tention, and open to the whole range of parol evidence. When co-sureties become bound in dif- ferent bonds for the same dutj', and the bonds are for different amounts, contribution between them is to be in the proportion of the penalties of the several bonds ; Bell V. Jasper, 2 Iredell's Equity? 597, 601 ; Armitage v. Pulver, 37 New York, 494. But if several, or successive, obligations of suretyship be not, in substance and nature, those of original sureties for the same thing, then, according to the circum- stances, either there will be no re- course whatever, of contribution or indemnity, among the several sets of sureties, or, the original surety will be exempt from contri- bution to the latter surety, and en- titled to full indemnity from him, or, he may be bound to make full indemnity to the new surety, and of course not entitled to call on him for contribution. Each of these cases may be considered separately. (1.) If the obligations of the different classes of sureties, are for wholly distinct things, and have no 156 CONTRIBUTION. — SUBROGATION. relation to, nor operation upon, one another, though they may arise out of the same principal indebtedness, there is no claim, from one class upon the other, either for contribu- tion or indemnity ; Langford's Ex'or V. Perrin,^ Leigh, 552, 558. In like manner, one set of sureties may be substituted for another, in the same duty, whose liability ceases, and then the latter set have no recourse against their predeces- sors ; as in Hutchins et al. v. If' Caw- ley, 2 Devereux & Battle's Equity, 399, and Longley v. Griggs, 10 Pickering, 121. See also Field y. Pelot, 1 M'Mullan's Equity, 310, and U. S. v. Wardwell et al., 5 Mason, 82, 85. (2.) If one be bound either per- • sonally or in his property, as origi- nal surety for a debtor, and the creditor bring sviit against the principal, and the latter in the course of the legal proceedings, give a bail-bond, or prison-bounds bond, or appeal bond, or injunction bond, with a surety, this latter surety, upon pajang the debt, has has no recourse whatever against the original surety or his property; Douglass v. Fagg, 8 Leigh, 588; Givens et al. v. Nelson's Ex'or et al., 10 Id. 382 ; Langford's Ex'or V. Perrin, 5 Id. 555, 55T ; Stout V. Vause, &c., 1 Robinson's Vir- ginia, 169, 180 ; Patterson v. Pope 5 Dana, 241 ; Smith v. Bing, 3 Ohio, 33 ; Daniel v. Joyner, 3 Iredell's Equity, 513 ; Burns and others v. The Huntingdon Bank, 1 Penrose 6 Watts, 395 ; Poit v. Nathans, 1 W. & S. 155 ; Knox v. Vallan- dingham, 13 Smedes & Marshall, 526 ; Hammock v. Baker, 3 Bush. 208 ; Schnitzel's Appeal, 13 Wright, 23 ; Ghaffin v. Campbell, 4 Sneed. 184 ; And the converse proposition established in Parsons v. Briddock, 2 Vernon, 608, and approved by Sir William Grant, in Wright v. Mor- ley, 11 Vesey, 12, 22, that the original surety, if he pays, has a right to enforce the obligation of the bail for his own full indemnity, is enforced in some of the preceding cases ; Potts v. Nathan ; Burns V. The Huntingdon Bank ; Ghiffin \..Gampbell, 4 Sneed. 184,191 ; and nothing can be more certain or obvious than the justice of that principle ; Hammock v. Baker ; Mitchell V. DeWitt, 25 Texas, 180. The suit against the principal debtor was brought for the equal benefit of the creditor and of the original surety, who, in fact, has a right in equity to compel such a suit to be brought, or to institute it himself; the bail then engages for the sufliciencjr of the principal in the matter of that suit, which is for the benefit of the creditor and the original surety, and thus places himself in the position of the principal debtor in relation to them; and he becomes equitably answerable to them, because it was by his intervention that they were deprived of the power of making satisfaction from the principal. [Thus in Brandenburg v. Flynn, 12 B. M. 391, the court said they knew of no principle on which a subsequent surety who came to the aid of the debtor solely at his in- stance, and without the request or concurrence of the other sureties, could make them liable for indem- nity or contribution, and that the BERING V. EARL OF WINCHELSEA, 157 cases had on the contrary, estab- lished, that the prior sureties were under these circumstances entitled to be substituted to the remedies of the creditor against the subsequent surety. It follows that the surety in a bond given in the course of an application to chancery to stay proceedings at law, will have no right of recourse against a prior suretj', whose obligation reaches back to the acquisition of the debt, or has been assumed at an intermediate period ; Bohanon v. Combs, 12 B. M. 563; Branden- hurgh v. Flynn. In Schnitzel's Appeal, 13 Wright, 23, judgment was entered by confession on a joint bond, one obligor being a principal the other a surety ; and one Mast, became bail for stay of execution at the request of the principal. It was contended that this enured to the benefit of the surety by .postponing the levy, which might otherwise have been made on his goods. He could not, therefore, be entitled to subroga- tion against Mast. The record showed that the latter intervened on behalf of both obligors, and the presumption was that the re- quest came from both. The court were, however, of opinion that if such was the natural inference, it might be explained by parol. It appeared from the testimony that the bail had been entered exclu- sively at the instance of the prin- cipal. " It is, therefore," said Woodward, J., " the case of a prior surety who has paid the debt of the principal seeking satisfac- tion out of a subsequent surety, who, by his interposition, got time for the principal debtor to the prejudice of the prior surety." The principle applies where a surety intervenes, at the request of a party who is primarily liable for the debt, and thereby postpones the remedy of another whose lia- bility is secondary, although the latter may not be a surety in the ordinary sense of the term. In Mc- Cormick v. Irwm, 11 Casey, 111, a bill in equity was filed against Irwin and Whittaker, to enforce the payment of a debt which they owed as co-partners, although Whittaker had covenanted with Irwin to pay the whole. Whitta- ker thereupon gave a bond with sureties to prevent the appoint- ment of a receiver. A decree was finally rendered against both, which Irwin satisfied, and proceeded on the bond. The court held, that on the execution of the covenant he became a surety, and Whittaker the principal. He was consequently entitled to subrogation against the defendant, who had intervened at Whittaker's request. The question is, however, pri- marily one of fact, and if a principal and suretjr join in taking a writ of error, a third person, who bgcomes bail, in error, at the instance of the principal, with the knowledge and assent of the surety, maj^ have a right of recovery against the latter ; Hartwell v. Smith, 15 Ohio, N. S. 200. The material inquiry un- der these circumstances is, at whose instance the subsequent surety as- sumed the liability, and a request is in this, as in most instances, evidence from which the law will imply a promise. 158 CONTRIBUTION. — SUBROGATION, In Hartwell v. Smith, the court held the following language in de- livering judgment : " It is well set- tled, that if the interposition of the second surety is for the benefit of the principal alone, without the sanction or assent of the first surety, who may be prejudiced thereby — as when the effect of the second bond to prevent the en- forcement of present payment from the principal, and thus to prolong the responsibility of the first surety — in such a ease the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as against the second. * * But the rule is otherwise where the surety in the second bond becomes bound for a purpose in which both the princi- pal and the prior surety concur, in which they both have an interest, and where the assent of the prior surety is expressly given, or is clearly to be inferred from the cir- cumstances of the case. In such a case, the last surety has a right to look for his indemnity, not only to his principal, but to such fixed securities as had been given to the creditor when his engagement was entere^ into, and on the faith of which he may be presumed to have incurred his obligations ; Howe v. Frazer, 2 Robinson, La. 424." " It is settled law, that if a credi- tor, by valid contract with his prin- cipal debtor, without the consent of the surely, extend the time of payment, by thus tying up his own hands, and suspending his right of action on the original contract against the principal, he discharges the surety. But if the contract for extending the time be made with the assent of the surety, his liability remains unaffected. Upon a principle quite analogous to this do the conflicting equities of prior and subsequent sureties, in cases like the present, depend. If, with- out the consent of the first surety, the creditor is arrested in the col- lection of his debt from the prin- cipal, by the interposition of a second surety, the former will be allowed, for his indemnity, to be subrogated to the rights of the creditor against the latter. But this equitable right can have no place where the first surety assents to the second contract of surety- ship, and especially where it is en- tered into at his instance, or for his benefit."] In Maryland, it has been de- cided that bail is not liable to the surety for contribution ; see Sem- mes, use of Baden, v. Naylor, 12 Gill & Johnson, 358: but the courts of that State seem to have overlooked the true ground of the decision in Parsons v. Briddock. (3.) If one set of sureties be bound for a debt, and then the obligee takes another bond, as sup- plemental security upon which the obligors are to be liable, only in case the principal and sureties in the former bond fail to pay the sureties in the former bond, stand in the relation of principals to the new sureties, who are not bound with them, but for them ; they have no claim for contribution against the new sureties, and are bound to them for full indemnity : and the secondary or supplemental nature of the second bond may be DERING V. EARL OF WINCHELSEA. 169 shown by a memorandum upon it, or by parol ; Graythorne v. Swin- burne, 14 Vesey, 160; Harrison V. Lane et al,, 5 Leigh, 414 ; dicta in Langford's JSx^or v. Ferrin, Id. 552, 558, and in Stout v. Vause, &c., 1 Robinson's Virginia, 169, 181. See the subject at large in Field Y. Pelot, 1 M'Mullan's Equity, S'TO, where it is held that the question whether the second set of sureties are substituted in the place of the first, or are supple- mental to them, or are joint sure- ties with them, depends upon the evidence of intention afforded by circumstances. Many instances of this supplemental suretyship occur. Thus, where the plaintiff became surety in an appeal from the County Court to the Circuit Court, and upon the affirmance of that decision, the defendant became surety on appeal to the Supreme Court, and judgment was again given against the appellant, and the plaintiff paid the debt, it was held that he was not entitled to recover contribution from the de- fendant, because they never were co-sureties ; and the defendant was the surety of the plaintiff as much as of his principals ; and if he had paid, would have been entitled to full indemnity from the plahitiff; Cowan V. Duncan, Meigs, 470, 472. See also. La Grange v. Mer- rill, 3 Barbour's Chancery, 625. - So, where A. as surety, signs with B. a note payable to C, and C. en- dorses it for accommodation, C. is a supplemental surety to A., and A. has no right to contribution from him ; this, at least, is the re- lation of A. and C. on the face of the paper, but it might be shown by parol evidence that A. and C. agreed to be common sureties for B. ; Smith v. Smith, 1 Devereux's Equity, 173. So, where a note was signed by A. as principal and B. as surety, and then by C. as " surety for the above names," C. was held to be a supplemental surety, not liable to contribute to B. ; Harris v. Warner, 13 Wen- dell, 400 ; Thompson v. Sanders, 4 Dev. & Bat. 404. And where a note was made by A. as principal, and B. and C. as sureties, and afterwards guarantied by a fourth person, the guarantor was held not to be liable to contribute to one of the sureties who had paid. " The sureties," said the Court, "were in effect principals, so far as regards the guarantor : the law raises no implied promise on the part of the guarantor to contribute in the case of a surety's paj'ing the note, as it does on the part of a co-surety :" Longley v. Origgs, 10 Pickering, 121. [In these instances there was a note or memorandum appended to the signature of the party claim- ing to be exempt from contribu- tion, which indicated that he exe- cuted the instrument as a surety for the other signers, and not with them ; and it has been a disputed question whether such a result will follow from a collateral agreement, which does not appear in writing. It is conceded that if A., B. and C. unite in a bond or note, and the consideration is shown to have moved to A., he will be a princi- pal, and the rest sureties, for a reason like that which prevails 160 CONTRIBUTION. •SUBROGATION. where one man pays the price, and the conveyance is made to another. This does not affect B. and C, or show that they should not contribute equally to the liqui- dation of the debt. C. may how- ever offer to prove that he exe- cuted the instrument on the faith of a promise by B. to save him harmless, and it will then be requisite to determine whether the case is one for the admission of parol evidence'. The weight of authority is, that it should be re- ceived, because the note defines the obligation of the makers to the payee, and not their relations to each other. As between the obligees and the obligors, it can- not be shown that some of the obligors were not to be called on in the first instance, nor unless default was made by the person who received and benefited by the consideration. As between the ob- ligors there is no written agree- ment ; there is merely a natural inference or presumption that each is to bear his share of the common burden ; Barry v. Bansom, 12 N. Y. 462. The law was held the other way in Norton v. Goons, 3 Denio, 130 ; 6 N. York, 33 ; but this decision has been overruled, and it is now established that a co-contractor who gives a promise of indemnity as a means of inducing another to affix his signature, is a principal relatively to him, although both are strangers to the consideration, and sign for the benefit of the party to whom it moves ; Melms V. Werdehoff, 14 Wisconsin, 18 ; Barry v. Bansom ; Keith v. Oood- win, 81 Vermont, 268, 215 ; Adams V. Flanegan, 36 Id. 400 ; Apgar V. Hiler, 4 Zabriskie, 808.. Such a promise is not within the statute of frauds, because the parties are liable independently of the promise which merely regulates the order of payment among themselves ; Barry v. Bansom, 2 Kernan, 462 ; Apgar v. Hiler ; Batson v. King, 4 Hmistone & Norman, Y39 ; 1 Smith's Lead. Cases, 512, Yth Am. ed. The principle is the same whether the contract with the creditor is by parol or under seal ; Thomas v. Cook, 8 B. & C. 128. It is established under these de- cisions that one of several sure- ties may show that he became an- swerable on the faith of an express or implied promise that he should be entitled to look to the other sureties for indemnity. The right of a surety to contri- bution is an equity, which may, like most other equities, be re- butted by oral testimony, al- though the contract out of which it grows is in writing ; and hence a parol agreement between the stireties to a bond or other written instrument that one shall be saved harmless by the others, or shall not be liable to them for contribu- tion, will preclude a suit in de- rogation of the agreement ; Barry V. Bansom, 2 Kernan, 462 ; Apgar V. Hiler, 4 Zabriskie, 808. There is another point about which there has been much diflfer- ence of opinion. It has been con- tended that as the right to contri- bution grows out of the assumption of a common burden, it cannot be taken away without the consent DEKING V. BAEL OF WINCHBLSEA. 161 of the parties interested in enforc- ing it. It is not enough that the surety who seeks to be exonerated, stipulated with the creditor, or with the principal debtor, that the other sureties should be primarily liable. It should appear that the condition was made known to them, and that they agreed to it. The argument was clearly stated by the counsel for the defendant in Norton V. Coons, & N. Y. 33, 38. " When several persons are about to become sureties for a debtor, they either regulate their rights and duties as between themselves by agreement, or leaving them to be determined by law, they enter into the contract with the creditor without any such agreement. If they make no agreement between themselves, equity determines their duty to each other. Their agree- ment, hSwever, if they make one, forms the law of their rights and duties as between themselves ; Craythorne v. Swinbvirne, 14 Ves. 160 ; Harris v. Warner, 13 Wend. 400. But an agreement affecting the rights and duties of all the sureties, must be made by all. A part of them cannot make an agreement which shall control the rights and duties of all, or have the eifect to throw upon one not a party to it, a greater burden than the law would oblige him to bear, had no agreement been made. Still less can a part of the sure- ties make an agreement with the debtor, which shall have the effect of casting a greater burden upon the other co-sureties, and of exon- erating themselves from liability to contribution. As the debtor is VOL. I 11 not a party to the obligation to contribute, so it follows that he has no power over that obligation to modify or release it." This view of the law is sus- tained by Warner V. Price, SWend. B91, Flint V. Bay, 9 Wend., and Norton v. Goons, 3 Denio, 132 ; 6 New York, 33 ; although the judgment of the Court of Api^eals in the latter case seems to have been based on the idea that parol evidence was inadmis- sible, as tending to vary the import of a written instrument. There can be no doubt that the principle on which these decisions proceeds is just. The fallacy lies in applying it to cases where there is no evidence of a common pur- pose. Iftwo or more persons agree to be sureties for a third, they im- pliedly agree to be equally liable for the debt. But this presump- tion may be rebutted by proof that they contracted severally without any common understanding or de- sign. If A. unites with B. in the execution of a promissory note for the accommodation of the lat- ter, without requiring or expect- ing C. to affix his signature, and C. is subsequently asked to sign by B., he may obviously make any terms that he thinks fit. He may buy the note, or he make an ad- vance and take the note as a secu- rity, or he may sign it as a co- • promissor or indorser. In the former case, he is entitled to pro- ceed directly on the instrument against A. and B. ; and his right to call upon them for indemnity, is not less plain in the latter. It is accordingly well settled under the 162 CONTRIBUTION. ■SU BROG ATION. recent course of decision, that a subsequent surety may make any contract for his own protection, which does not disappoint the le- gitimate expectations of those who have previously become answer- able for the debt ; Adams v. Flana- gan, 36 \ ermont, 400; Apgar v. Hiler ; Keith v. Goodivin ; Briggs V. Boyd, 37 Vermont, 534 ; Melms V. Werdehoff, 14 Wisconsin, 18. The problem is more compli- cated where a party who appears on the face of a negotiable instru- ment as a maker or acceptor, asks for subrogation against another, whose liability is secondary as com- pared with his own. It is con- ceded, that in the case of bills and notes, as of other contracts, one who does not receive and profit by the consideration, is a surety, as it regards one who does. Here the form of the contract is con- trolled bj"- the equity aiising out of a collateral fact. But the ques- tion which of two or more parties to a commercial instrument, who are alike strangers to the consider- ation, is a principal relatively to the other, depends in the first in- stance on the terms of the writing and the order in which they sign ; although this presumption is not conclusive, and may be rebutted by parol. Such at least, is the gen- eral rule, although there is much « doubt whether it applies as be- tween an accommodation drawer and acceptor of a bill. If A. and B. unite in asking C. to make an advance, he may proceed against both, though B. alone receives the money. The case is so far varied where the request is put in the form of a bill of exchange, that the acceptor is liable to the drawer on the face of the instrument, not the drawer to the acceptor. But this rule does not apply in a suit brought dehors the bill, and the acceptor may maintain assumpsit against the drawer for money ex- pended for his use. But the pre- sumption is still in favor of the latter, and a recovery cannot be had in such a,, suit, unless it ap- pears that the bill was accepted, and paid without consideration to accommodate the defendant. And the better opinion seems to be that where the acceptor and drawer are both strangers to the considera- 'tion, the liability of the acceptor is primary as the terms of the in- strument import, and that he can- not require the drawer to indem- nify him in the absence of an agreement to that eflfect. In Griffith v. Beed, 21 Wend. 300. Dickson drew on the plaintifi", Griffith, • for $4,000. The draft was also signed by the defendant as "surety." The plaintifi;" ac- cepted and paid the draft with his own funds, for Dickson's ac- commodation, and now declared against Dickson and Reed for money paid, &c. The plaintiff contended, that when an advance is made, or an act of anj"^ kind performed at the request of two persons, both are answerable, although the consideration moves exclusively to one. Such a re- quest appeared on the face of the bill, and was sufficient to sustain the suit. It is as immaterial that Reed described himself as a surety. This defined his obliga- BERING V. EAKL E WINCHBLSEA, 163 tion as it regarded Dickson, but did not affect the plaintiff. Bronson, J., said, "that the plaintiff could not recover on the bill as such. Taking the instru- ment as it stood, his obligation was primary, that of the defendants secondary, to pay if he made de- fault. It was, therefore, requisite to go outside of the writing, and rely on a collateral and implied agreement. And here the evi- dence negatived the liability of Reed, by showing that the bill was paid for Dickson's use, and at his instance. That Reed signed the draft as a surety, would not be a defence against any one who was a holder for value and could proceed as such under the law merchant. But it was conclu- sive, that he, like the plaintiff, became answerable without con- sideration, and for Dickson's bene- fit. As between an accommoda- tion drawer and acceptor, the lia- bility of the latter was primary. It was his duty to indemnify the drawer ; and as this was a legal in- ference from the order in which the names appeared on the instru- ment, it could not be varied by parol." So where there were three drawers, two of whom were sure- ties for the third, and the drawee accepted and paid with notice of their equity, although it did not appear from the instru- ment, it was held on the authority of Phelps V. Garrow, 8 Paige, 322, and Griffith v. Heed, that he could not look to them for reimburse- ment, and that his only recourse was against the principal ; Wing V. Terry, 5 Hill, 160. When, however, the question arose in Suydam v. Wood/all, 4 Hill, 211 ; 2 Denio, 205 ; a dif- ferent view was taken by the court of appeals, and one who unites with another in drawing on a third person without giving him the means of meeting the draft, said to be under an obligation to indemnify the drawee, although he signs as surety and for the accommodation of the other drawer ; See Wright V. Garlinghouse, 21 Barb. 414 ; Batson v. King, 4 Hurlstone & Norman, 139 ; Apgar v. Hiler, 4 Zabriskie, 104. In these instances the drawer who signed as surety, had notice that the bill was accepted for the ac- commodation of the other drawer, and in the absence of such knowl- edge would not have been answera- ble to the acceptor. It is a general rule, that where there is no controlling equity the legal right shall prevail. The promise of the drawer is contingent to pay if the acceptor makes default. Prima facie the latter is the prin- cipal, the former a guarantor. If both share in, or both are stran- gers to the consideration, the form of the contract must govern ; Glapp V. Rice, 13 Gray, 403. Where a bill drawn, indorsed, or accepted for the accommodation of a third person, is taken up by the endorser, he may recover on the bill against the drawer, and the latter has a like remedy against the acceptor. Under these circumstances, they are all sureties, as it regards him for whose use the instrument is made or discounted; but the in- lt)4 CONTRIBUTION. ■SUBR OG ATION. dorser is not a surety with the drawer, nor the drawer with the acceptor. Such is clearly the re- lation between an accommodation endorser and a drawee who ac- cepts without consideration to accommodate the drawer. See Sweet V. McAllister, i Allen, 353. In Cooper v. Flatt, 3 Wright, 528, the defendant indorsed various bills for the accommodation of the drawer. The plaintiff accepted one of them, which he was subse- quently compelled to pay. It appeared in evidence that the ac- ceptance was without considera- tion, although this was not known to the indorser, and the court held that the latter might appro- priate the indemnity which he had received from the drawer to the payment of the other drafts, to the exclusion of that held by the plaintiff. Lowrie, C. J., said that the plaintiff and defendant were both sureties, but the latter, by the terms of the instrument, was liable only in case the plaintiff made default. He might, there- fore, stipulate for an indemnity, without being obliged to share it with the plaintiff, unless the fund was large enough to cover both. See Uastman v. Foster, 8 Metcalf, 19, and Moore v. Moherly, "J B. Monroe, 299. It was held in like manner in Sweet V. McAllister, 4 Allen, 353, that in the absence of an express agreement to the contrary, effect will be given to the legal tenor of the instrument. If A. makes and B. indorses a promissory note for the accommodation of the payee, A. must indemnify B., unless he can show affirmatively that B. is a surety with, and not, as the in- dorsement imports, a surety for him. It makes no difference in the application of this principle that B. knew that A. was a surety, or even that the latter appended the word surety to his signature : Sweet V. McAllister. It results from what has been said, that, which of the parties to a bill or note should bear the bur- den of the debt and acquit the rest, is a question of fact which does not necessarily depend on the tenor of the instrument, and admits of parol and extrinsic evi- dence. Such evidence is not ad- missible, unless the person who relies on it as a defence or cause of action, was a stranger to the consideration. If the payee gives value, it is immaterial that the maker does not receive it ; and a maker who receives value can- not allege that the payee did give it. But it may always be shown as between an acceptor or maker on the one hand, and a drawer or payee on the other, or of two successive indorsers, that one put his name to the instrument without consideration at the re- quest of the other to accommodate a third person, and on the faith of an express or implied promise of indemnity. So either of them may prove a mutual understand- ing or agreement that they should contribute equally to the discharge of the obligation. Thus an accep- tor may show that he became an- swerable at the request of the in- dorser to accommodate the drawer, or of the drawer to accommodate BERING V. EARL OP W I N C H E L S E A , 165 the indorser, or of one drawer to ac- commodate another. In like man- ner, as between successive accom- modation endorsers, it may bfi shown that the second is a surety for the first, the first for the sec- ond ; or that they are co-sureties, ante ; Phillips v. Preston, 5 How- ard, 278, 291; Weston v. Gham- berlin, t Gushing, 43. And as the right of indemnity carries with it that of subrogation, an ac- commodation acceptor may pro- ceed against the drawer of the bill as such, in the name of the holder, although he could not on his own, or may issue execution on a judgment which the holder has already obtained. It has been held in Massachu- setts in accordance with these principles, that although an indor- ser for value cannot qualify or limit his liability by parol, an oral agreement by two or more accommodation indorsers to con- tribute equally to the payment of the note, is valid and upheld by a sufficient consideration : Weston V. Ghamberlin, 7 Gushing, 403 ; and the decision of the Supreme Court of the United States in Phillips V. Preston is to the same efiect. It should be remembered, that while a maker or acceptor may recover in indebitatus assumpsit against the payee or drawer, on proof that he incurred the lia- bility at his request, such evidence is not admissible under a count on the instrument itself. But the de- fendant in a suit on a note or bill may always, to prevent circuity of action, show that if the plain- tifi" went to judgment and execu- tion, he would be liable to refund the money as having been laid out for his use : See Griffith v. Beid, 21 Wend. 502. The efiect of a stipulation by one Gif several co-sureties that he is not to be called on for contribu- tion, or that he is not to be a surety with the others, but for them, has been much discussed, and is still doubtful under the au- authorities. It was said in Norton v. Coons, 3 Denio, 130; 6 New York, 33, that " if a surety -refuses to take the burden of a co-surety, he re- nounces the benefit of that rela- tion. If he will not contribute when the other surety pays the debt, he shall' not have contribu- tion when he pays it himself." And this dictum seems to have been approved in Adams v. Flana- gan, 36 Vermont, 400. This is an inaccurate statement of the question which is not whether both sureties should con- tribute, but whether one is not as between themselves liable for the the whole. It is no doubt true, that as contribution springs from the maxim that equality is equity, it cannot be enforced unless there is a common burden. But there may obviously be a right to in- demnity when there is none to contribution. Such is the rule as between principal and surety ; and one who signs as " surety for the above signers," may treat them as principals, whether they are principals or afreties as between themselves. This is generally con- ceded where he becomes answera- 166 CONTRIBUTION. SUBROGATION. ble at their request, and not less true -where he executes the instru- n>ent on the faith of an express or implied agreement with the credi- tor that he shall be entitled to sub- rogation on the payment of the debt. If a j oint note were tendered for the price of goods, and the ven- dor refused to accept it without further security, a third person who guaranteed the debt, might obviously proceed in the name of the vendor against the makers, al- though one of them was a surety, and did not know of the guaranty : Keith v. Goodwin, 31 Vermont, 169. And as equity regards the substance of such transactions, parol evidence is admissible, that one who appears on the face of the instrument as a joint maker, is in fact a guarantor : Melms v. Werde- hoff, 14 Wisconsin, 18. And the better opinion would seem to be that one who signs a joint and several promissory note, in the be- lief that the persons whose signa- tures have been already affixed to the instrument are principals, may claim indemnity from both, al- though one is in fact a surety : Melms V. Werdehoff, 14 Wiscon- sin, 18. See Adams v. Flanagan, 36 Vermont, 400, 410 ; Keith v. Goodwin, 31 Id. 218. The rule in cases of this de- scription was laid down in Adams V. Flanagan, 36 Vermont, 400, 408, in the following terms : " Is parol evidence admissible to show that the defendants signed not as co- sureties with the plaintiff, but with the intent tc§toe sureties for him ? As between the makers and the payee the note excludes all parol evidence. It was made for the very purpose of being the proof, the sole and exclusive proof of the contract." " But as between the signers to it, it was not made or intended to be the exclusive proof of their agree- ment and relations. It is well settled, that it is open to parol evidence to show the true rela- tions of the signers, and the real nature of the contract between them." " The makers, though all appear- ing to be joint principals, may be shown to be some principals and some sureties. An apparent prin- cipal may be shown to be a surety, an a^Dparent surety a principal : Harris v. Brooks, 21 Pick. 195 ; 23 Maine, 156 ; Laphamv. Barnes, 2 Vermont, 220 ; Flint v. Day, 9 Vermont, 345 ; Keith v. Goodwin, 31 Vermont, 268; Robinson v. Lyle, 10 Barb. 512." " In Keith v. Goodwin, fhe ques- tion underwent a careful examina- tion, and the following conclusions were arrived at by the court : " If one sign a note as surety, and en- trusts it to the principal, he thereby gives the latter an implied au- thority to obtain either additional sureties or guarantors, indefinitely, until the note is fairly launched in the market as a security, having two distinct parties." " One who signs as surety may so stipulate at the time of entering into the obligation, as not to be liable to contribution with other sureties who have signed before him. And when one guarantees the payment of a note, on which sureties have already signed, it BERING V. BARL OF WINCHELSEA, 167 seems that prima facie his legal relation to those who have signed before him is such that he is surety for them jointly, not jointlj'^ with them." Rediield, C. J., said : " Where there is anything in the form of the contract or the nature of the transaction, to show that the subsequent sureties did not expect to be holden as co-sureties with the others, but to stand merely as sureties for all the former signers, they are entitled to full indemnity from each of the others, or all jointly. As if the surety sign ex- pressly as surety for all the above signers, or when he signs, saying he is willing to be responsible for all of them. In such case, he is not liable to contribution : 1 Story's Eq. Jur. 498 ; Chitty on Con. 598 ; 1 Lead. Cases in Eq. 126, and notes ; Pendehury v. Wallcer, 4 Y. & C. 424 ; Moore v. Isley, 2 Dev. & Bat. 3'?2. This very point is expressly de- cided in Graythorne v. Swinburne, 14 Vesey, 160. The facts of this last case seem to us very analo- gous to those of the present case, so far as the liability of the plain- tiff to share the burden of paying this note with the defendant is concerned. In that case, as well as in this, the undertaking of the last surety was without the knowl- edge, expectation or privity of the former ones ; it was done, too, in both cases, to induce the advance of money upon the first contract, and because it could not be ob- tained without such additional in- demnitj'- or guaranty. And in the case of Graythorne v. Swinburne, it was clearly held, that there was no duty of contribution among the two classes of sureties. It is held, that in the case of Graythorne v. Swinburne, the indemnity was by a separate instrument, and here it is upon the same paper, but by a distinct contract, referring to the other for brevity, as written above. We cannot supjjose it could have made any difierence in the present case if the plaintifi' had given his guaranty upon a separate piece of paper, writing the note or describ- ing it, instead of referring to it as written above. " In the case of Graythorne v. Swinburne, the question was de- termined upon the circumstances and oral evidence in the case, as a matter of fact, and made depend- ent upon the intention of the last surety." It lias accordingly been held, that one who signs as surety for the above sureties, may have re- course to them for indemnity, although his signature is affixed in that form without their knowl- edge or consent, unless there is some understanding or agreement to the contrary, of which he is cognizant ; Wright v. Qarling- house, 2'7 Barb. 4*74. In Darrach V. Osborne, 2 Halstead, 71, A. as principal, and B. as surety, execu- ted a joint and several promissory note to C, who subsequently wrote his name under theirs, and transferred the instrument for value. He subsequently took up the note, and it was held that he might recover the whole amount from B. So one who signs his name as a co-obligor or maker, in the belief 168 CONTRIBUTION. — SUBROGATION. that those who have already affixed their signatures are principals, may treat them as such, although they are in fact sureties, ante ; Melms V. Wirdehoff, 14 Wiscon- sin, 18. In this instance the de- fendants executed a joint and sev- eral note, and delivered it to the payee. The latter subsequently procured the signature of the plaintiff, who put his name to the instrument in the belief that it had been given for value in the ordinary course of business, and it was held that the defendants could not allege as against • him, that thejr had made the note without consideration for the accommoda- tion of the payee. The principle was applied in another form in Darrach v. Osborne, 2 Halstead, 71. There is, notwithstanding, a strong presumption that those who unite in a common obliga- tion should contribute equally to its fulfilment, and as the burden of proof is on him who maintains the contrary, he must make out his case by sufficient evidence. Proof that one of several sureties signed at the request of the others, will not, therefore, exonerate him from contribution ; Warner v. Price, 3 "Wend. 39T ; it should at least appear that they promised to save him harmless in any event ; Woodworth v. Bowers, 5 Id. 277 ; Bagott V. Muller, 32 Indiana, 332. It is equally true that a surety who knows that another signs in the well-founded belief that both are to be equally answerable, can- not disappoint this expectation by a secret stipulation for his own benefit. Such a course would be contrary to the good faith that should prevail in all common un- dertakings, and especially where the parties are volunteers. It cannot, therefore, be adopted where the sureties sign in each other's presence, nor where the tenor of the writing indicates that they are all to sign, nor where the surety who seeks to be exoner- ated knew that the contract would be presented to the other sureties for their signatures, nor where he had notice that a prior signer put his name to the instrument on the faith of an assurance that he also would affix his signature. But this argument does not ap- ply where the sureties do not act in concert, nor as against a surety who has no reason to be- lieve that the other sureties are influenced by or rely on his signa- ture ; and under these circum- stances each may prescribe the terms on which he is willing to be bound ; Melms v. Wordshoff, 14 Wisconsin, 18. This is conceded where the condition is appended to the signature, though not made known to the co-sureties : Harris V. Warner, 13 Wend. 405 ; and equally true where it appears from oral and extrinsic evidence ; Adams v. Flanagan, 36 Vermont, 400, ante, 161. We have seen that a joint promi- sor or obligor, who shows that he does not mean to assume a com- mon burden by adding the words " surety for the above " to his sig- nature, is not liable to contribu- tion ; Harris v. War^ier, 13 Wend. 400 ; Thompson v. Sanders, 4 Dev. & Bat. 404, and is on the BERING V. EARL OP WINCHELSEA. 169 contrary entitled to indemnity if compelled to pay the debt ; and it has been contended that the same result should follow where one of several sureties signs as such, while the others affix their signa- tures without qualification. See Nichols V. Parsons, 6 New Hamp- shire, 301 ; Wing v. Terry, 5 Hill, 160. It is, however, obvious that such a designation is affirm- ative, not negative. It may de- fine the character of him who thus describes himself, but will not preclude the other signers from disclosing theirs. A recital does not operate as an estoppel, unless it is certain and leaves no doubt of the intent. That the word surety is added to the name of one joint maker, will, therefore, neither exonerate him from con- tribution, nor entitle him to in- demnity as it regards another whose signature has no such qualification; Sisson v. Barrett, 6 Barb. 199; 2 Comstock, 406; Lathrop V. Wilson, 3 Vermont, 604; McGee v. Prouty, 9 Met- calf, 45 '7 ; Apgar v. Hiler, 4 Za- briskie, 704 ; JRobinson v. Lyle, 10 Barb. 512.] Co-sureties, otherwise entitled to contribution, may, by agree- ment among themselves, so far sever their unity of interest and obligation, as to terminate the right of contribution. Thus, where three sureties agreed that the com- mon liability should be divided, and that each should secure to the creditor the payment of one-third of the debt, and receive from him a discharge as to the residue, and this was executed on the part of one, and he obtained, with the as- sent of the other, a covenant from the creditor not to sue, it was held that one of the remaining sureties paying more than his share, could not call upon this one for contri- bution ; Moore v. Isley, 2 Dever- eux & Battle's Equity, 372, Sli. And, in some of the courts, it has been held, that wherever one surety is released by the creditor, under circumstances not to dis- charge the other, this other has no claim for contribution against the released surety ; Waggener v. Dyer, 11 Leigh, 384, 391; Boii- chaud V. Dias, 3 Denio, 238 ; though, of course, the remaining surety would be discharged from so much of the debt as would propierly have fallen upon the one who was released ; Waggener v. Dyer. But in Boardman v. Paige, 11 New Hampshire, 432, 435, it was held that a release of one surety will not discharge him from liability to contribute to another, who from the insolvency of one of the remaining sureties may pay beyond his share : and this seems to be the necessary result, unless it be considered that the discharge of one surety, without the consent of the others, releases the remain- ing ones from the obligation to pay more than their share in rela- tion to the whole number origin- ally bound. See 1 American Lead- ing Cases, 400, 5th ed. For the purpose of enforcing contribution among co-sureties, one surety who paj^s the debt is entitled to be subrogated to all the rights and remedies of the creditor, as against his co-sureties, 170 CONTRIBUTION, ■SUBROGATION. in precisely the same manner as against the principal debtor, and though payment may have dis- charged the security at law, equity will keep it alive for this purpose : and this applies to bonds, judg- ments, decrees, mortgages, and all other securities wliatsoever. See Guyler v. Unsivorth, 6 Paige, 32, 33 ; Gheeseborough v. Millard, 1 Johnson's Chancery, 409, 413 ; Scribner v. Hickok, 4 Id. 531, 532 ; Lawrence v. Cornell, Id. 545 ; Himes v. Keller, 3 Watts & Ser- geant, 401, 404 ; Croft v. Moore, 9 Watts, 451. "In America, and certainly in Pennsylvania, a surety paying the debt of his principal, is entitled to be subrogated to all the rights and remedies of the creditors, as against his co-sureties, in precisely the same manner as against the principal debtor, and as substituted in the place of the creditor, and entitled to enforce all his liens, priorities and means of payment, and by the act of 19 & 20 Vict. c. 97, § 5, this is now the law of England ;" Ness' Estate, 19 P. F. Smith, 215. Thus, where a judgment had been recovered against several sureties and their principal jointly, and, the princi- pal being insolvent, two sureties had paid a considerable part of the judgment, and the administra- tor of another surety having paid a small balance upon it, had pro- cured satisfaction of the judgment to be entered of record, it was held that the sureties who had paid more than their share, were en- titled to be subrogated in the original judgment as against the estate of the surety who had paid less, and for that purpose to have the judgment considered in equity as subsisting and in force ; Bur- rows & Brown v. M'Whann & Campbell, 1 Dessaussure, 409. In Cuyler v. Ensworth, a surety, who had paid a joint judgment against himself and other sureties, sought to reach, through its medium, equitable assets of a co-surety; and, as by the practice of the court, that cannot be done until execution has been issued, and re- turned unsatisfied, it was objected that this was impracticable, as the judgment was satisfied at law ; but the Chancellor said, that a court of equity looked to the sub- stantial rights of parties, without regard to mere matters of form, and that, if it had been necessary, he would have restrained the de- fendant, by injunction, from con- testing the validity of the execu- tion at law ; and it was decided that the sureties who had paid were to be regarded as assignees in equity of the judgment, and might file a creditor's bill in their own names. And the general prin- ciple that a surety paying the debt, stands precisely in the situation of the creditor in relation to the other sureties, for the purposes of contribution, is settled in Lidder- dale v. Robinson, 2 Brockenbrough, 160; 12Wheaton, 594. A statute of Virginia had provided that debts on bills of exchange should have the rank of judgment debts in the distribution of assets ; and, in that case, it was decided that the claim of an indorser, a surety, who had paid the bill, against the estate of another indorser, a co- BERING V. BAEL OF WIN CHELSEA. 171 surety, for contribution, was en- titled to the same rank of a judg- ment debt. " The principle which the case decide," said Chief Justice Marshall in the court below, "is this : where a person has paid money for which others were re- sponsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted, to every equitable intent and pur- pose, in the place of the creditor whose claim he has discharged. The cases suppose the surety to stand in the place of the creditor, as completely as if the instrument had been transferred to him, or to a trustee for his use. Under this supposition; he would be at full liberty to proceed against every person bound by the instrument. Equity would undoubtedly restrain him from obtaining more from any individual than the just proportion of that individual ; but to that extent, his claim upon his co-surety is precisely as valid as upon his principal." And this was fully sustained in the Supreme Court. It has also been said, that sub- rogation will not be enforced in the face of a legal right ; and that if the law has decided against a surety's claim, equity will not give him that claim through the me- dium of subrogation ; Fink v. Mahaffy, 8 Watts, 384. [It has been a disputed question whether a surety who has paid the debt is entitled to a dividend for the whole against the estate of an insolvent co-surety, or only for so much as exceeds his just propor- tion. The former alternative was adopted in Zfess' Estate, 19 P. F. Smith, 2*72. The court said that the creditor might clearly have proved the whole debt ; Patients Appeal, 9 Wright, 151, and that the surety was subrogated by the mere act of payment.] It is a settled principle of equity, that if one of several co-sureties subsequently take a security from the principal, for his own indem- nity, it enures to the common benefit of all the sureties. If, therefore, the principal convey property, by a deed of trust, ex- pressly for the benefit of one of the sureties only, the others have an equity to come upon it to the same extent that he can ; West v. Belches, b Munford, 18T; WMa- hon, &c. V. Faivcett, &c., 2 Ran- dolph, 514 ; Fagan v. Jacocks, 4 Devereux, 263 ; Gregory v. Mur- rell, 2 Iredell's Equity, 233, 236 ; Field V. Pelot, 1 M'Mullen's Equity, 310 ; Hinsdill v. Murray et al., 6 Vermont, 136, 150 ; El- wood V. Diefendorf, 5 Barbour's S. Ct. 399, 405 ; Rice v. Morton, 19 Missouri, 261 ; Steele v. Meal- ing, 24 Alabama, 285 ; Tyus v. De Jarnette, 26 Id. 280 ; SiUay v. Dowell, 53 Illinois ; Aldrich v. Hapgood, 30 Vermont, 61*7 ; Browne v. Bay, 10 New Hamp- shire, 702 ; Eartwell v. Whitman, 36 Alabama, n2 ; M'Gune v. Bell, 45 Missouri, 174; Parham v. Green, 46 North Carolina, '436 ; Arnott V. Woodhurn, 36 Missouri, 99. A surety who has the means of indemnity in his hands cannot, 172 CONTRIBUTION. ■S UBROG ATION. therefore, pay the debt and pro- ceed against a co-surety for con- tribution ; and if such an attempt is made directly or through a third person, who i^ used as a tool or cover, a chancelor will stay the suit by an injunction ; Silvay V. Dowell, 53 Illinois, 260. It is immaterial whether they became sureties at the same time or at different periods ; in either case there is a common burden, and all are bound to assist in bearing it. And as each has an equal equity against the principal, so no one can engross the funds sup- plied by him to the exclusion of the others ; Burton v. Bradly, 13 Ohio, N. S. 514, 523. " Sureties," said Kennedy, J., " are bound to observe good faith towards each other ; and when funds are placed by the principal in the hands of one surety to be applied either to the payment of the debt, or for the purpose of indemnifying him against any loss that may arise from the suretyship, he must be considered as holding them for the common benefit of all con- cerned. The giving of the funds was the act of the principal, who was equally bound to indemnify all his sureties alike ; and upon him, as well as to all his means for that purpose, each of them had an equal and just claim ; it is unjust and inequitable that one surety, without the consent of his co-sure- ties, should derive any exclusive benefit from the act of the princi- pal in giving up what he might and ought to have applied for the common benefit of all ; " Agnew v. Bell, i Watts, 31, 33. " The in- demnity, which one surety takes," says Henderson, J., in Moore v. Moore, 4 Hawks, 358, 360, "is reached in favor of his co-surety, upon the ground, either that it was intended for the benefit of all, or that the taking it was a fraud upon the others. In such cases, courts of equity convert him into a trustee, not permitting him to allege his own turpitude or selfish- ness as a protection; for they enter into the agreement u.nder a belief of perfect equality, trusting apparently to the same laws of in- demnitj', and to the united exer- tions of each other, to avoid harm severally ; therefore, to take an in- demnity is a fraud upon the rest, and more especially, as it lessens the ability of the principal to in- demnify the others, and is taken without such secrecy, it is pre- sumed to be designed for the benefit of all." See also. Hall v. Robinson, 8 Iredell, 56. But this equity which arises upon the sim- ple relation of co-sureties, may be removed by the agreement of the parties, either before the obliga- tion is assumed, or afterwards. An agreement for a separate in- demnity, entered into, before one becomes surety, with the knowl- edge and consent of the other, will be good, and the latter will be en- titled only to the surplus after the former is satisfied ; Moore v. Moore ; see also Thompson et al., V. Adams et al., 1 Freeman's Chancery, 225, 228 : and it has been held, also, that after two persons have become sureties for a common principal, they may, by agreement, renounce their right to BERING V. EARL OF W I N C H E L S E A , 173 take equal benefit from any securi- ties either may obtain, and each may undertake to look out for himself, exclusively, for indemnity from the principal or for contribution from another co-surety ; Tyus v. De Jarnette, 26 Alabama, 280 ; but such an agreement must be dis- tinctly proved ; Long v. Barnett, 3 Iredell's Equity, 631, 634 ; Tyus v. De Jarnette. In Gould v. Ful- ler, 18 Maine, 364, 36T, where the general princiiDle was admitted, that securities received by one suretj'' before payment, enure in equity to the equal benefit of all, it was yet held that if, after one surety has paid the debt, he re- ceives from the principal, money expressly to indemnify him for his share of the payment, he may sue his co-surety for his contributory share : but this seems to be carry- ing too far the exception to a set- tled and salutary principle of equity. If the principal has given securities to one surety, the latter cannot in chancery recover contri- bution from his co-surety, without accounting for the property, and either showing how much he re- ceived upon it, and making a rata- ble allowance of the proceeds, or showing that he could not by reasonable diligence realize from it ; Goodloe v. Clay, 6 B. Munroe, 236 ; Morrison v. Poyntz, 1 Dana, 307, 310 ; Dennis v. Gillespie, 24 Mississippi, 58 ; Steele v. Mealing, 24 Alabama, 285 ; Morrison v. Taylor, 21 Id. TT9 ; and any loss which may arise from his neglect or misconduct, will be a defence to the extent of the loss ; Taylor v. Morrison, 26 Alabama, 728 ; Steele V. Mealing; The State Bank v. Boseman, 8 English, 631 ; Steele V. Brown, 18 Alabama, 700 ; Zeiter v. Pierce, 11 B. Munroe, 379 ; Crow V. Murphy, 12 Id. 444; Chilton V. Chapman, 13 Missouri, 470 ; Silvay -v. Dowell, 53 Illinois, 260 ; 2 American Leading Cases, 403, 5th ed. ; Hilton v. Crist, 5 Dana, 384, 389. The surety re- ceiving securities, is a trustee for his co-sureties, and is bound to such discreet and reasonable use of them as would be required from a trustee, but no greater : Car- penter V. Kelly, 9 Ohio, 106 ; see Pool V. Williams, 8 Iredell, 286. In like manner, the principal creditor is in equity entitled to the full benefit of any security given by the debtor to a surety for his indemnity and for the discharge of the debt ; and it makes no dif- ference that such principal credi- tor did not act upon the credit of such security in the first instance, or even know of its existence ; Maure v. Harrison, 1 Equitj' Cases Abr. 93, pi. 5 ; Wright v. Morley, 11 Vesey, 12, 22; Owens V. Miller, 29 Maryland, 144 ; Kirk- man v. The Bank of North America, 2 Caldwell, 397 ; Moses V. Murgatroyd, 1 Johnson's Chan- cery, 119, 129 ; PhillipsY. Thomp- son, 2 Id. 418, 422 ; Pratt v. Adams, 7 Paige, 617, 627; Curtis v. Ty- ler, 9 Id. 432, 435 ; Ten Eyck v. Holmes, 3 Sandford, 428, 429; Van Orden v. Durham, 35 Cal. 136; Boberts V. Colvin,3 Grattan, 359, 363 ; Toulmin et al. v. Hamil- ton et al, 7 Alabama, 362, 367 ; Ohio Life Ins. Co. v. Ledyard, &c., 8 Id. 866, 872 ; Paris v. Hu- 174 CONTRIBUTION. SUBROGATION. let, 26 Vermont, 308 ; Middle v. Bowman, 1 Foster, 236 ; Haven T. Foley, 19 Missouri, 632; Al- drick V. Martin, 4 Rhode Island, 520 ; Cine v. Vance, 4 Clarke, 434, 441. In fact, a court of equity, under the title of subrogation, ex- ercises a paramount control, for purposes of justice and conveni- ence, in respect to the relation of principal and sureties. " If prop- erty is pledged to either the credi- tor or a surety, though not to the person seekinglio charge it, it may be reached by substitution in a court of equity, without regard to the intention of the contracting parties;" per Parker, J., in Hope- well et al. Y. Bank of Cumber- land, 10 Leigh, 206, 226 ; see also M'Collum, V. Hinckley & others, 9 Vermont, 143, 149. " This," says Parker, J., (p. 221,) "arises not from any notion of mutual con- tract between the parties, that in providing for the surety, the credi- tor shall be equally provided, but from a principle of natural equity independent of contract ; namely, that to prevent the surety from being first harassed for the debt or liability, and then turning him round to seek redress from a col- lateral security given by the prin- cipal, a court of equity will au- thorize, and even encourage, the creditor to claim through the medium of the surety, all the rights he has thus acquired, to be exercised for his beneiit, and in ' discharge of his obligations." This equity of the creditor's rests upon the doctrine of subrogation or substitution ; and therefore the creditor cannot claim the security, unless the surety had a right to come upon it. Bibh v. Martin, 14 S. & M. 81; Bush v. Schups, 4 Cushman, 463. If, therefore, se- curity be given to a contingent surety, such as an indorser of ne- gotiable paper, to indemnify him, and his liability never becomes absolute, but is discharged from default in giving notice, the payee cannot claim the benefit of the se- curity, because being appropriated only for the case of the indorser's becoming liable, the appropria- tion, in truth, never took eflfeet at all ; Hopewell et al. v. Bank of Cumberland; Bank of Virginia V. Boisseau et al., 12 Leigh, 387 ; see, also, Ohio Life Ins. & Tr. Go. V. Reeder et al., 18 Ohio, 35, 46. [It has been laid down broadly in some instances that the securi- ties received by a surety from the principal, will .enure to the benefit of the creditor, and cannot be withheld from him, or diverted to any other use ; Haggarty v. Feterman, 1 Paige, 299 ; Keyes v. Bush, 2 Id. 311 ; Pratt v. Adams, 1 Id. 621 ; Curtis v. Tyler, 9 Id. 432 ; The Bank of Auburn v. Throppe, 1 8 Johnson, 505 ; Maure V. Hanson, 1 Eq. Cases, 93 ; Moses V. Murgatroyd, 1 Johnson, Ch. 219 ; Ten JEyck v. Holmes, 3 Sandford, Ch. 428. If, said Chancellor Wal- worth, in Pratt v. Adams, a person standing in the situation of in- dorser or surety is furnished or provided by the principal debtor with a fund, or with collateral security for such a purpose, the creditor is in equity entitled to have it applied in satisfaction of the debt. It was said in like man- BERING V. EARL OP WINCHELSEA. 175 ner in The Neio London Bank v. Lee, 11 Conn. 112, 118, "that it had long been settled, that a surety ■who has paid the debt may well claim all the funds appropriated for its paj'ment remaining in the hands of the creditors. The plain- tiffs insist that the same reasons and equities apply with equal strength to their case, wherein they, as creditors, seek to apply the funds in the hands of the surety to the payment of the debts. And so we think. In both cases the security or fund is created for the payment of the debt, and is a trust existing for that specific purpose ; and whether the creditor, as in the former case, or the surety, as in this, be the trustee, is immaterial." The rule is, notwithstanding, subject to qualifications which have been variously stated, and are not well defined. Where the princijDal executes a mort- gage, assigns a bond, or trans- fers property of any kind to the surety to pay or secure the debt, a right will accrue to the creditor, which cannot be defeated bj' the suretj- and principal acting severally or in concert. Such an indemnity, is also a trust which equity will enforce notwithstand- ing any attempt to misappropriate the assets, or return them to the source from whence they came ; Homer v. The Savings Bank, 7 Conn. 484 ; The Mew London Bank, La., 11 Id. 112; Miller v. Ord, 2 Binney, 382; Boss v. Wilson, 7 Smedes & Marshall, 766 ; Dick v. Maury, 9 Id. 456 ; Paris v. Hulet, 26 Vermont, 308 ; Eastman v. Foster, 8 Metcalf, 19 ; Collier v. Calvin, 3 Grattan, 353. " These collateral securities," said Chancellor Kent, in Moses v. Mur- gatroyd, 1 Johns Ch. 119, 129, " are, in fact, trusts created for the better protection of the debt ; and it is the duty of this court to see that they fulfil their de- sign, and whether the plaintiffs were apprised at the time of the creation of this security, is not material. The trust was created for their benefit, or for the better se- curity of their debt, and when it came to their knowledge, they were entitled to affirm the trust, and to enforce its performance. See Neil- son V. Blight, 1 Johns, Ch. Rep. 205." It was said in like manner in Kinsey v. Dearmon, 5 Caldwell, 392, that the ignorance of the creditor will not preclude him from enforcing such a trust. On the other hand, where the security is given solely for the protection of the surety, he may waive a privilege created for his benefit, and the creditor has no interest in the grant that can supply the want of privity of contract. His right can rise no higher than that of the surety, through whom he claims, and will be subject to any defence that would have been valid against the latter: Dempsey v. Bush, 1^ Ohio, N. S. 37 ; Hunter v. Bichardson, 1 Duvall, 247. Whether the surety shall retain or surrender such an indemnity is a question for him alone to consider, and if he elects to give it up, and rely solely on the credit of the principal, a court of equity will not overrule his de- 176 CONTRIBUTION. SUBROGATION. termination at the instance of the creditor, unless some further and controlling equity has supervened : Jones V. The Quenipiack Bank, 29 Conn. 35. It is therefore a good answer to such a bill that the surety has not been damnified, or that the securities were appro- priated to another purpose by vir- tue of an agreement with the prin- cipal : Homer v. The Savings Bank; The Ohio Life & Trust Ins. Go., 18 Ohio, 35; Bobb v. Martin, 14 Smedes & Marshall Bush Y. Stamps, 26 Mississipi Osborn v. Noble, 46 Id. 449 Pratt V. Adams, 1 Paige, 615 Daniel v. Joyner, 3 Iredell, Eq. 913; Hopewell v. The Bank, 10 Leigh, 206 ; Finney v. Finney, 4 Harris, 380. It results from these principles that the holder of a note will not be subrogated to the securities in the hands of an accommodation indorser who has been discharged by a want of notice, because the indorser is not damnified, and the right of the holder cannot rise higher than his : Hopewell v. The Bank. The rule is the same between an indorser who is not notified, and a subse- quent indorser who is liable for the debt : The Bank v. Boissan, 11 Leigh, 387. The subject was carefully exam- ined in Homer v. The Savings Bank, 1 Conn. 483 ; where Bissell, J., held the following language in delivering judgment : " In Maure v. Harrison, 1 Eq. La. Abr. 93, it was adjudged that a bond creditor " shall in chancery have the benefit of air the counter bonds or collat- eral securities given by the princi- pal to the surety ;" " as if A. owes B. money, and he and C. are bound for it, and A. gives C. a mortgage or bond to indemnify him, B. shall have the benefit of it to recover his debt." In Russell v. Clark's Executors, 7 Cranch, 69, 94, 97, the same doctrine was admitted. The Court, in that case, declare that the per- son for whose benefit a trust is created, who is ultimately to re- cover the money, may sustain a suit in equity to have it paid di- rectly to himself. In Phelps v. Thompson, 2 Johns. Ch. Rep. 418. The holder of a promissory note was held entitled to the benefit of a collateral security of the debt given by the maker to the in- dorser, for his indemnity. The principle to be extracted from these cases is this, that when collateral security is given, or property assigned, for the better protection or payment of a debt, it shall be made effectual for that purpose, — and that not only to the immediate party to the security, but to others who are entitled to the debt, and to make them thus effectual, a court of chancery will lend its aid. And the reason is, that such is the intent of the trans- action. " They are trusts," says the late Chancellor Kent, in the case al- ready cited, " executed for the better protection of the debt ; and a court of chancery will see, that they fulfil their design." Beyond this principle, however, it is be- lieved, no case has gone." It is notwithstanding obvious, that a surety who has received an BERING V. EARL OF W I N C H B L S B A , 177 indemnity cannot apply it to any other purpose than the payment of the debt, without the consent of the principal debtor. Such an attempt on his part will give rise to an equity in favor of the prin- cipal, which may be enforced by the creditor, as the party benefi- cially interested. It was on this ground, that the surety was en- deavoring to withhold the securi- ties in his hands, both from the creditor and principal, and con- vert them to his own use, that the judgments in The New Lon- don Bank v. Lee, 11 Conn. 112 ; and Lewis v. BeForest, 20 Id. 440, can be reconciled with the doctrine of Homer v. The Savings Bank. See Jones v. The Quini- piack Bank. It should moreover be remem- bered that the insolvency of the surety may vary the case by bring- ing it within the rule, that one who is unable to fulfil his pecuniary obligations, is not entitled to re- lease or forego any right or in- terest that can be made available as a means of payment. Under these circumstances, the securities held by the surety cannot be ap- plied to any debt which the prin- cipal does not owe, without a breach of faith towards the latter, nor to any debt which he does, unless it is also due by the surety. The principle only applies to a transfer without consideration, or for a consideration in which the surety does not share, and will not preclude the principal and surety from using a collateral given as an indemnity against one liability, for the discharge of another, or as a VOL. I 12 means of raising money for their joint account. The failure of the surety will not invalidate an appropriation made while he is still solvent and able to fulfil his obligations ; Thrall v. Spencer, 16 Conn. 139 ; Jones V. The Quinipiack Bank, 29 Id. 25. This is equally true, whether the surety disposes of his own assets, or of those which he has received from the principal. In the case last cited, the condi- tion of the mortgage which gave rise to the controversy, was that the Jerome Manufacturing Com- pany, who were the mortgagors, would " pay at maturitj^ " cer- tain bills drawn on Barnum, the mortgagee, and which he had ac- cepted for their accommodation, and " would save him harmless from all loss or damage by rea- son of the same." Subsequently, and before the bills matured, the mortgagors and mortgagee joined in a deed of the premises to the Quinipiack Bank, as a se- curity for certain advances to the mortgagee. The Manufacturing Company and Barnum failed, and a bill was filed by the holders of the drafts to set up the mort- gage against the deed. It was held that they had no equity that could override the legal title of the grantee. The Court were clearly of opinion that the mort- gage was both in eflTect and form merely an indemnity. It was in- tended to secure the acceptor, and not to secure the payment of the bills. The stipulation that these should be paid at maturity, merely indicated the mode in which the 178 CONTRIBUTION. — SUBROGATION. obligation to save him harmless was to be fulfilled. The mortgage was not therefore an inseparable in- cident of the debt. It might have acquired that character through the insolvency of the drawers and acceptor. But when the deed to the bank was executed they were in good credit, and able to meet their engagements. Their subsequent failure could not af- fect the title which had already vested in the defendants. It was held in like manner in Thrall v. Spencer, that an accommodation indorser, who had received goods from the maker of the note as an indemnity, might return them to the maker, and that the title of the defendant, who had taken the goods subsequeutl}^ as a pledge, was superior to that of the payee. It seems to have been thought in these instances that the equity of the creditor to the assets in the hands of the surety does not be- come fixed on the insolvency of the latter, nor until the actual filing of the bill. But the better opinion seems to be that it dates from the period when the inability of the surety to meet his engage- ments, renders it incumbent on him to take no step that can hinder or delay his creditors. It is, .never- theless, a mere equity, which can- not be enforced against a bona fide purchaser, and this was the main ground of the judgment in Thrall v. Spencer. It would seem, that the surety may surrender the securities which he has received from the principal, notwithstanding the insolvency of the latter. In Homer v. The Sav- ings Fund, 1 Conn. 483, ante, the Eagle Bank had conveyed a large amount of property to trus- tees to indemnify one Homer against the liability which he had incurred by endorsing certain notes at the request of the bank. A bill was filed alleging the insol- vency of Homer, and praying that the assets in the hands of the trus- tees might be applied to the pay- ment of the notes. The Court refused the prayer, on the ground that as the trust was exclusively for the Homer's benefit, neither he nor those claiming under him could assert any right until he had actually paid the notes. This de- cision seems to have gone too far, because the principal is equitably bound to pay the debt at maturity, and a failure to comply with this obligation is an injury for whjch relief may be had in chancery. Homer was exposed to a suit by the default of the bank, and as this was enough to entitle him to the benefit of the trust, so the complainants should have been substituted in his place. Arf en- dorser who has been discharged by a want of notice, stands on a different footing, and cannot justly ask to be indemnified at the ex- jDense of the maker, ante ; and this may also be said of a guarantor or surety who is freed from liability hy the laches of the creditor or unauthorised variation of the con- tract. See Hunter v. Sichardson, 1 Duvall, 247 ; Havens v. Fondry, 4 Metcalf, Ky. 247. There is another consideration which should not be overlooked. The equitable principle which en- BERING V. EARL OF WINCHELSEA. 179 titles the surety to the remedies of the creditor gives the creditor an equal claim on the surety : The Nevi London Bank v. Lee, 11 Conn. 112, 118. It is well settled, that as soon as the debt becomes due, the surety may file a bill against the principal for indemnity, and to have the securities which are in his hands applied to the payment of the debt. It is not essential to such relief that the surety should have been actually damnified in person or estate. It is enough that he is exposed to liability in consequ.ence of the default made by the principal ; 2 American Lead. Cases, 41 2, 5 ed., ante. An express or implied agreement to indemnify may be specifically enforced, al- though the promisee has not paid the whole or any portion of the debt. Otherwise, there would be a circuity of action to attain an end which might be reached at once : Miller v. Lanaster, 5 Cald- well, 514, 522. The surety is, therefore, entitled to require that the securities which he holds shall be so used as to fulfil the obligation of the principal, whether they were given to indemnifj' him or secure the creditor. And as he may ex- ercise this right, so he must do so if required by the other parties to the obligation : Miller v. Lanader; Havens v. Fondry, 4 Metcalf, Ky. 249 ; Hopewell v. The Bank, 10 Leigh, 206, 221. This equity arises not " from any notion of mutual contract between the par- ties, that in providing for the surety the creditor shall be equally provided for, but from a principle of natural equity, independent of contract, namely, that to prevent the surety from being first har- assed for the debt, and then turn- ing him round to seek redress from the collateral security given by the principal, a court of equity will authorize and even encourage the creditor to claim, through the me- dium of the surety, all the rights he has thus acquired, to be exer- cised for his benefit, and in dis- charge of his obligations." It is, notwithstanding, necessary to remember, that this equity can have no place before the maturity of the debt. Until the principal is in default, there is no right of recourse on the part of the surety, and consequently none to which the creditor can be subrogated. The better opinion, therefore, seems to be, that during the in- terval between the execution of the obligation and the period ap- pointed for its fulfilifient, the credi- tor has no interest in a security given solely for the protection of the surety, and cannot object to any appropriation of it that may be agreed upon by the surety and princijDal. But this cannot be said where the surety is insolvent, or where the principal has violated his obligation to the creditor, and thereby entitled the latter to sub- rogation to the equity of the surety.] Formerly, no action at law could be maintained against the princi- pal by a surety who had paid the debt, the remedy being only in equity ; but in modern times, when many equitable claims are enforced at law, through the medium of imjDlying promises to do what the 180 CONTRIBUTION. — SUBROGATION. party is bound in justice and equity to do, it is settled, that when a surety becomes bound for a principal, and at his request, the law implies a promise of indem- nity, and an action of assumpsit may be brought. The surety, therefore, may pay the debt at any time after it becomes due, without waiting to be sued, and may then maintain an action for money paid : Mauri \. Heffernan, 13 Johnson, 58, 15 ; Odlin v. Oreenleaf, 3 New Hampshire, 210 ; Ooodall v. Went- worth, 20 Maine, 322, 325 ; Frazer V. Goode,S Richardson, 199 ; Stin- son V. Brennan., Cheve's Law, 15 ; Williams's Adm'rs v. Williams's Adm'rs, 5 Ohio, 444, 445 ; or may sue on the implied promise to in- demnify ; Babcock v. Hubbard, 2 Connecticut, 536, 539 ; Ward v. Henry, 5 Id. 596. And when the debt is satisfied by an extent or sale of the surety's land, he may recover either at law or in equity, although his remedy once lay solely in the latter jurisdiction : Hulet T. Soulard, 26 Vermont, 295 ; The Wesley Church v. Moore, Barr, 213 ; Lord v. Staples, 3 Foster, 448 ; Randall v. Rich, 11 Mass. 498 ; and may even de- clare in general or indebitatus as- sumpsit, and give a satisfaction produced by or resulting from a sale or conveyance of land, iu evi- dence under a bill of particulars setting forth a payment in money, without resorting to a special count ; Bonney v. Seeley, 2 Wend. 481. The implied promise or ob- ligation to indemnify arises as soon as the suretyship is entered into ; Howe v. Ward, 4 Greenleaf, 195 ; Appleton & another v. Bas- com & others, 3 Metcalf, 169 : but no action at law can be brought by tlie surety until after he has paid or extinguished the debt ; Powell v. Smith, 8 Johnson, 249, 252 ; Pigou v. French, 1 Washing- ton's C. C. 218 ; Miller v. Howry, 3 Penrose & Watts, 314, 380 ; In- galls V. Dennet, 6 Greenleaf, 19 ; Hall and others v. Thayer, 12 Metcalf, 131, 135 ; Shepherd v. Ogden, 2 Scammon, 251, 260 : see also Jones and another v. Trimble, 3 Rawle, 381, 388 ; Williams's Adm'rs v. Williams's Adm'rs, 5 Ohio, 444, 446 ; Elwood v. Deifen- dorf, 5 Barbour's S. Ct. 399, 410, ante, 143. In assumpsit, the suretj may recover what he has paid, with interest and costs ; Wynn, Adm. V. Brooke et al., 5 Eawle, 106, 108 ; Hay den v. Cabot, 1 Massa- chusetts, 169 ; Cleveland v. Cov- ington, 3 Strobhart, 184 ; and even as it has been said, counsel fees and other incidental expenses ; Fletcher v. Jackson, 23 Vermont, 581 ; Marsh v. Hamington, 18 Id. 150 ; although this would seem to be somewhat doubtful, post. The surety of a surety, upon paying the principal's debt, may also maintain assumpsit ; Hall v. Smith, 5 Howard, 96, 102. If the sureties pay separately, their legal demands against the principal, are in their nature several, and the sureties cannot join in suing the princi- pal ; Messer v. Swan, 4 New Hampshire, 482, 488 ; Lombard v. Cobb, 14 Maine, 222 ; Gould v. Gould, 8 Cowen, 168 ; but if the debt is paid hy their joint nego- tiable note, and also, it seems, if BERING V. EARL OF WINOHELSEA. 181 money paid is owned by them jointlj', or raised on their joint credit, their proper remedy is by joint action ; Peterson et al. v. Farker, 3 New Hampshire, 366 ; Day V. Swann, 13 Maine, 165 ; Doolittle V. Dwight and another,, Admr., 2 Metcalf, 561 ; Appleton & another v. Bascom & others,, 3 Id. 169, 172 ; see Lowry v. Lumber- men's Bank, 2 Watts & Sergeant, 210, 215. But a joint action will not lie by one surety against the principal and other sureties ; Lapham v. Barnes et al., 2 Ver- mont, 213, 218 ; Elwendorph v. Tappen & others, 5 Johnson, 1T6 ; even when the plaintifT signed expressly as surety, while the de- fendants affixed their signatures without any such qualification ; M'Gee v. Prouty, 9 Metcalf, 34Y. If a surety is bound for two joint* principals, he may sue them jointly for indemnity, unless some agree- ment has been made inconsistent with this' implied liability ; Dun- can V. Keiffer, 3 Binney, 126, 129. [There are two grounds on which a recovery may be had in assump- sit for money paid, laid out and expended ; one where the plaintiff pays at the request of the defend- ant ; the other where the pay- ment is made under an obligation, which, though legally incumbent on both, should as between themselves be discharged by the defendant. In the latter case, the existence of the obligation must be proved ; in the former it is immaterial that the defendant did not owe the money; Shaw v. Lloyd, 12 Massa- chusetts, 447 ; Peaslee v. Breed, 10 New Hampshire, 48 ; Stevenson V. Burman, Chevis, 15 ; Lempheir v. Ferguson, 10 Richardson, 424. A man who requests another to be his surety, impliedly asks him to pay the amount when due, and cannot resist an action for indemnity, on the ground that the principal contract was oral and within the statute of frauds, unless he also shows that the re- quest was countermanded ; Alex- ander V. Vance, 1 M. & W. 571. The principle is the same where the original contract is invalid for want of a stamp, or in conse- quence of any other defect that can be waived. In like manner, the surety may recover, although he went on to pay after learning that the debt was usurious ; unless the information came from the principal debtor in such a shape, as to be an express or implied re- vocation of the authority which the law infers where an obligation is incurred for the accommodation of another person; Brittain v. Lloyd, 14 M. & W. 762, 773. So a recovery may be had although the debt was barred by the lapse of time, unless the principal gave notice of his intention to rely on the statute as a defence ; Elkinton V. Nichols, 7 Gill, 85 ; Alexander V. Vance. The point was, notwith- standing, decided differently in Hachett v. Pegram, 21 Louisiana Ann. 722. In Whitehead v. Peck, 1 Kelly, 141, 151, the payment of a usurious obligation, with notice of its true nature, was said to be essentially invalid, and to give the surety no right to indem- nity or re-imbursement. The indemnity of the surety 182 CONTRIBUTION. — SUBROGATION. should, as it would seem, extend beyond the debt itself, and em- brace the costs, which have been recovered against him by the creditor ; Baker v. Martin, 3 Bar- bour, 634 ; Ehvood v. Deifenderf, 5 Id. 112; Wynn v. Brooke, 5 Rawle, 106 ; Hay den v. Cabot, 11 Mass. 16'7 ; at all events, 'When the promise to indemnify is express, and not merely implied by the law ; Bonney v. Seeley, 2 Wendell, 481 ; unless the costs have been incurred needlessly or vexatiously by the surety, without the wish or assent of the principal ; Whitworth v. Tillman, 40 Mississippi, Ite : and some of the cases hold that the surety is entitled to reimburse- ment for counsel fees and other in- cidental expenses of the same nature; Marsh v. Harrington, 18 Vermont, 150 ; Fletcher v. Jack- son, 23 Id. 581. But costs inflicted in invitum, by the act of the law, obviously stand on a different footing from payments made voluntarily as a matter of choice, and the better opinion seems to be that counsel fees cannot be in- cluded in the recovery against the principal, as not being a necessary or legal consequence of his de- fault, and being merely so much money laid out for the benefit of the surety ; Wynn v. Brooke : and there are several decisions which tend to throw a doubt on the right of the surety even to costs ; Walker V. Hatton, 10 M. & W. 249 ; Penley V. Watts, T Id. 610; Tindall v. Bell, 11 Id. 228; Short v. Hal- loway, 11 A. & E. 31 ; Lowell v. The Boston & Lowell R. R. Co., 23 Pick. 24; Oreely v. Dow, 2 Met- calf, 119. " No man," said Lord Denman,in Short v. Halloway, " is entitled to inflame his account against another by incurring ad- ditional expense in an unrighteous resistance to an action which he cannot defend ;" 1 Smith's Lead- ing Cases, 28*7, 1 ed. ; and although this language was held in a suit brought to recover compensation for damages which had been re- covered against the plaintiff, in consequence of the failure of the defendant to fulfil a covenant to repair, it would seem applicable to the costs of a suit against a surety. But there is quite as much truth in the remark of Gibson, C. J., in Wynn v. Brooke, that the surety may be unable to prevent or antici- pate the infliction of costs by pay- ment, and that the loss should •consequently fall upon tlie prin- cipal, whose laches are the cause of the injury. The principle is clear, but there is some difficulty in its application. The surety is entitled to compensation for the costs inflicted by the act of the creditor, in instituting the suit and obtaining judgment by de- fault. These are the legal and natural consequences of the failure of the principal debtor to pay the debt at maturity. But it does not follow that he may resist a clear and unliquidated demand from a spirit of litigation, or for the xjurpose of gaining time, and if he adopts such a course he ought to bear the loss which it oc- casions ; Holmes v. Friend, 24 Barb. 540. Nor will the court, as it seems, award damages for the injury resulting from the inter- DEHING V. EARL OF WINCHELSEA 183 ruption of the surety's business, or the sacrifice of his goods through a forced sale, under an execution issued by the creditor ; Hayden v. Gahot, lY Mass. 16T.] It is equally well settled, at the present day, that indebitatus as- sumpsit will lie by one surety who has paid more than his share, to recover contribution from his co- surety ; see Johnson v. Johnson, 11 Massachusetts, 359, 361 ; Nor- ton V. Soule, 2 Greenleaf, 341, 343, 344. This implied obligation is founded upon an equitable duty, which the sureties are supposed to be cognizant of, and assenting to, at the time they enter into the contract of suretyship ; and, ac- cording to the modern and better opinion, the legal rights and duties being founded upon equity, are co- extensive with the equitable claims subsisting among the parties, and are in all respects similar to them. See Moore v. Moore, 4 Hawks, 358, 360 ; Sherrod v. Woodard, 4 De- vereux, 360, 361 ; Morrison v. Poyntz, 7 Dana, 307 ; Bezzell, Ad'mr, v. White, 13 Alabama, 422; Fletcher v. Grover, 11 New Hampshire, 369, 3Y4 ; Boardman V. Paige, Id. 432, 439 ; Agnew v. Bell, 4 Watts, 31, 32 ; Taylor v. Savage, 12 Massachusetts, 98, 102; Mason v. Lord, 20 Picker- ing, 447, 449. " The action of as- sumpsit for contribution," says C. J. Shaw, in the last case, "is founded purely on equitable prin- ciples. It proceeds upon the broad ground, that when two or more are subject to a loss or burden com- mon to all, and one bears the whole or a disproportionate part, it lays an equitable claim for contribu- tion, from those who are thereby proportionably relieved." The principle, that contribution may be enforced, whether the sureties are bound jointly, or severally, whether by the same or different instruments, and whether with or without mutual knowledge of one another's suretyship, is settled in relation to assumpsit at law, as well as in regard to proceedings in equity ; Norton v. Coons, 3 Denio, 130 ; Harris v. Ferguson, 2 Bailey, 397, 400. Assumpsit to recover contribution will lie, also, as well where there are several sureties, as where there are only two ; Foster V. Johnson, 5 Vermont, 60, 63 ; and it will lie against the repre- sentatives of a deceased surety, for a payment after his death, be- cause the implied obligation arose at the time the common suretyship was entered into ; Bachelder v. Fiske et al., Fx'rs, 17 Massachu- setts, 464 ; Bradley v. Burwell, 3 Denio, 62, 66 ; Malin and another V. Bull, 13 Sergeant & Rawle, 441 ; M'Kenna v. George, 2 Rich- ardson's Equity, 15, 18 ; Aiken v. Peay, 5 Strobhart, 15 ; see also, Stothoff V. Dunham's Executors, 4 Harrison, 182 ; and according to the weight of authoritj', if one of several sureties be insolvent, contribution at law, as well as in equity, will be according to the number of those who are solvent ; Harris v. Ferguson, 2 Bailey, 397, 401; Mills v. Hyde, 19 Vt. 60, 63 ; Strong et al. v. Mitchell et al.. Id. 644, 647 ; and removal from the state is for this purpose equiva- lent to insolvency ; Boardman v. 184 CONTRIBUTION. — SUBROGATION. Paige, 11 New Hampshire, 432, 440; but in some other 'courts it has been said that there is in this particular a difference between law and equity, and that a surety who has paid the debt, can at law re- cover only a proportional contri- bution, according to the whole original number of sureties ; Stot- hoff V. Dunham's Ex'rs ; Parker V. Ellis, 2 Sandford's S. Ct. 224 ; see Powell v. Edwards, 2 B. & P. 268 ; Dodd v. Niven, 21 Missouri, 501, while equity will apportion the debt equally among the solvent sureties ; Dodd v. Mven, 1 Story Equity, sect. 498 ; see dictum in Croft V. Moore, 9 Watts, 451, 453, and see Hall v. Bohinson, 8 Ire- dell, 56, 59. A surety need not wait to be sued, but as soon as the debt is due, he may pay it, and bring an action of contribution ; Bradley v. Burwell, 3 Denio, 62, 69 ; and it has been held that he may pay or compromise the debt before it is due, and as soon as it is due may sue for contribution ; Craig v. Craig, 5 Rawle, 91, 98 ; but he cannot recover unless it ap- pear that he was bound for pay- ment, for if he pay a debt which he was not legally compellable to do, he cannot recover contribu- tion ; Skillin v. Merrill, 16 Massa- chusetts, 40 ; see Gave, use of Wallace v. Burns, 6 Alabama, Y80, 782 ; Landers v. Tuggle, 22 Loui- siana Ann. 443, ante. And as this right of action rests upon an equit- able claim to be compensated for a disproportionate suffering from a common burden, it will not exist, except for the excess which the surety has paid beyond his just share ; Fletcher v. Graver, 11 New Hampshire, 369; nor will it lie where the party claiming has in fact been reimbursed and has sus- tained no loss ; Mason v. Lord, 20 Pickering, 441, 449 ; nor where the surety who has paid is indebted to the principal in more than the amount of the debt ; Bezzell, Adm'r, V. White, 13 Alabama, 422, 423 : and if one surety has received any property from the principal for the purpose of indemnifying him, he must account for the proceeds of it, as for so much received on common account ; Bachelder v Fiske et al. Ex'rs, 1*7 Massachu- setts, 464, 4Y0 ; Fletcher v. Orover; Agnew v. Bell, 4 Watts, 81, 34 ;. Selvey v. Dowell, 53 Illinois, 260. A surety who has resisted an ac- tion brought by the creditor, can- not, it has been said, recover from his co-surety contribution for the costs, unless he defended at the co-surety's request ; John, Adm'r V. Jones, 16 Alabama, 454, 462 ; but in Fletcher v. Johnson, 23 Ver- mont, 581, co-sureties were held to be entitled to contribution, not only for costs, but for counsel fees and other incidental expenses. In equity, as has been seen, one surety does not recover contribution from his co-suretjf, without showing tliat the principal is insolvent, or unable to pay ; and the Kentucky courts have held that the same rule must prevail at law, since ^ihe legal and equitable liability should be the same; Pearson & Go. v. Duckham, 3 Littell, 385, 386; Poignard v. Vernon, &c., 1 Mon- roe, 45, 41 ; Morrison v. Poyntz, *l Dana, 307 ; Atkinson v. Stewart, BERING V. EARL OF WINCHELSEA, 185 n-, any plot of circumvention on the other. It would be a ^ -^ most extravagant conjecture to suppose that by this Mackreth had in view to get the legal estate in himself. When one once gets beyond the natural result of facts, there is no end to conjec- ture or its consequences. This was the situation on the 24th. Mackreth was made acquainted with the plan of the trust deed, and it is certain that he industriously recommended himself and Dawes as trustees for this purpose. It has been said, that Mack- 208 PURCHASES BY TRUSTEES. reth's forcing himself into the trust was improper, and done for some bad motive ; and that taking the business out of the bands of Mr. Farrer was calculated to give Fox a bad impression of him. I do not agree to this. In whose room were Mackreth and Dawes to be substituted ? The two first were Lord Grantlej and Lord Ligonier, who were put in only because they were lords, I believe ; for it was not very probable that they should be active or attentive in executing such a trust as this. As to Mr. Farrer bimself, it is only to be said that he had, in fact, done nothing in the affairs, nor taken any step towards it. I therefore really be- lieve that Mackreth meant what he said upon that occasion ; and, when he proposed himself and Dawes as trustees, he meant to transact the business to the best advantage. In doing this he undertook a very delicate trust: first, he was to make the most of the estate ; then to deal with the several annuitants. This put him into very awkward circumstances, himself and Dawes being both considerable annuitants ; and, therefore, when he un- dertook to deal with annuitants at large, he undertook a very nice charge, and it was incumbent on him to see with very great attention that he did not show more favour to the annuitants than he ought to do. I certainly do not approve of Mackreth's conduct, when after having recommended himself as a trustee for these purposes, he allowed the several annuities to stand as far as they had then gone, redeeming them only from that time. However, in fact, r*14-^l ^'® bought the annuities *on behalf of Fox, though with L -■ his own money ; but, instead of considering them as dis- charged on the 24th of December, when he bought them, he con- sidered them as bought for his own use, and treated them as ex- isting annuities. Here, therefore, he has gone beyond the line of delicacy ; for this is a transaction that a Court of equity will never permit to stand. Here the Court will say he took an undue advantage of his situation. Yet it seems as if he thought this a fair mode of dealing in this sort of market. In another instance he charged Fox more than he actually gave for the redemption of an annuity ; and this part of the transaction must of necessity be rescinded, as Mackreth has acted unfairly in it ; and Fox has the advantage of finding that Mackreth, after having recommended himself as a trustee, and undertaken to act faithfully for his cestui que trust, has yet been dealing unfairly in this very article. On the i6th of January it is allowed that Mackreth was a trustee of Fox, and whatever consequences arise from this char- acter must belong to him. Considering him, therefore, as a trustee, see wliat he has done ! First, he sent down a surveyor to the estate ; but he has so managed this part of the case as to pre- vent the Court from seeing much into it. The Court will act temperately in its conjectures on this, but at the same time will impute all that it fairly can in point of suspicion. On one side it is said that Hampton was sent down to survey the estate with FOX V. MACKRETH. — PITT V. MACKRBTH. 209 a view of enabling Mackreth to make the greatest advantage of it for his private benefit ; but I do not think so. I think it onght to be taken that he had the estate surveyed as a trustee, in order that, in that character, he might know the real value of it, and thereby be better qualified to sell it to advantage. This, then, I consider as a part execution of his trust. But then Hampton's knowledge ought to be Fox's knowledge ; and upon this arises a question which I think material — whether a trustee, gaining a knowledge of the subject in the execution of his trust and at the expense of the *cestui que trust (for I suppose r*,^^^-, the expenses incurred by the trustee must fall ultimately "- J on Fox), an(i that knowledge consequently belonging to the cestui que trust, whether a trustee may not in this resjtect have the hand of justice laid upon him, if this knowledge is made use of by him to circumvent his cestui que trust, so as to afford a dis- tinct ground of fraud iR a Court of equity ? I am rather at. a loss to find what the evidence affords to this point. It appears, however, that Hampton stayed on the estate till the 17th of January. In these circumstances Mackreth began: to deal with Fox, remaining in his character of a trustee. Fox had a valuation of the estate made by Jackman, which, though not very full or particular, yet afforded the general terms for a treaty and agree- ment ; and it went generally to show that the estate was capable of being improved about 100^. per annum. On this valuation, lying in medio, one party sajs the estate is worth 4i',000^. Mackreth reasons on this survey, and says, first, that the houses are valued too high ; secondly, that thirty two years' pui'chase for the land is too much ; next, that forty years' purchase for the lord's rent is out of all sight. Thus running down the valuation made by Jackman, he argued down Fox either from conviction or a sense of his distress, not indeed so low as 30,000/., which Mackreth first proposed, but to a medium pr.ce of 39,500/. The first question to he asked is, whether the character of a trustee shall vary the consequence of this transaction from lohat it would be in the case of a stranger? for it has not been argued, I think, that, in the case of a stranger, this bargain could be rescinded. JSTow, to what conclusion does the character of trustee go in this case ? \lf a trustee, though strictly honest, buys an estate himself and then sells it for more, yet, according to the rules of a Court of equity, from general policy and not from any peculiar imputation of fraud, a trus- tee shall not be permitted to sell to himself, but shall remain a trustee to all intents and purposes. It is not therefore, in that view, that Maeki'eth, being called a trustee, can operate. It *does r*i4r-| not rest on the name of a trustee, or on the legal or equi- ^ J table relation of trustee, but on the familiar intercourse between him and Fox. Now, can I, putting myself in the place of a juryman, pronounce that Fox agreed to the price, trusting that Mackreth knew the price and represented it fairly to him ? If A. says to B., I know the value of the subject, and, if you will trust VOL. I 14 210 PURCHASES BY TRUSTEES. me, I will fairly tell you what it is worth, and A. at the same time knows the value to be double what he represents it to be, this is such an abuse of confidence as shall be relieved against, jiot because A. is a trustee, but because he stipulated with B. to tell him fairly the value, and he broke that stipulation ; and then, to be sure, it makes full as strong a-case as that of a trustee. But was this the express or tacit understanding of the parties here ? I have no materials to affirm this fact upon ; at least I am considerably in doubt how to find any evidence of this, where one party asserts one sum to be the value of the estate, and the other another, and both try to make the best of the bar- gain. At the same time there are such circumstances respecting the manner in which Mackreth undertook the trust, as make rae hesitate. All this makes the question of the real value of the estate extremely material.^ I do not think it could have been sold at the time according to the rate of Jackman's valuation ; and Mackreth 's observations upon this seem to me to be well founded. No evidence has been adduced to show his valuation to be correct. Now, see what follows on the 16th of January. Garforth was called up and desired to put their agreement into writing. I do not see why it was necessary that this memorandum should be signed by both parties. I at first thought it showed an eagerness to get the bargain made ; but it seems it was agreed that more regular articles should be executed afterwards. The execution of these articles carried the transaction one step farther in point of form. Still, however, the conveyance was not executed. It is asked, whether any man of honour would let Fox execute the deeds, after he had actually sold the estate for a much larger r*14fi1 P"ceV Many men, perhaps, would do it; *but T should '- ^ never allow it to be the transaction of an honest man. Mackreth had forced himself into the confidence of Fox, and M'as called upon by every tie of honour and honesty, to consider him- self as a trustee ; but my doubt is, whether this is not too general a line to lay down in a court of justice. As to the manner of Mackreth's paying Fox the purchase- money, it has been much observed upon ; but I do not see much in it. He had not the money by him, which may readily be sup- posed, but he gave an accountable note, with 51. per cent, interest; and, to be sure, his note was just as good as a bond — very little danger of losing the money from a man of Mackreth's fortune; besides, it was a sort ot lien on the estate. The manner in which the accounts are made up by Mackreth is objected to, and it is said that this shows a confidence reposed in Mackreth by Fox. So it does ; but the question is, whether this confidence is ad idem — whether it shows a confidence on the part of Fox, that Mackreth would tell him the true value of the estate ? • Not for the purpose of the decision in a case between a trustee and his cestui que trust See 8 Ves. 353 ; 9 Ves. 247. FOX V. MACKRBTH. — PITT V. MACKRETH. 211 It is then said, that he was called upon to do several subsequent acts ; but these are to be so naturally accounted for by other cir- cumstances, that I do not see how fraud can be interred from these. They are then spoken of as instances in which Fox has confirmed the original purchase. .As to confirmation it has been considered by the Court in very different ways. In Lord Chesterfield V. Janssen, the Court did not go on confirmation as it is usually understood, but on this, that Mr. Spencer, with his eyes open, and after the death of the Duchess, and when his situation was totally changed, thought proper to confirm the former bargain. So, the judges assistant relied on this principally, and did not give much opinion on the former part of the case. T wish they had gone further ; for, as to the confirmation, he stood at that time under the former bonds. Another way in which confirma- tion operates is, by showing that the party then thinks himself to have been fairly dealt with. This occurs in the present case on the 28th of January. Again, on the 25th of April, Fox did not see he had had *any advantage taken of him. The (-#-14.71 use that I think is to be made of such confirmations is, *- -' as a proof that the party has seen no occasion to complain. In this view the present ease is still stronger, for no complaint was made of this transaction till 1781 ; and, therefore, it is fair to infer that so notorious a disproportion of price as is now insisted upon was not within the suspicion of those who dealt for Mr. Fox ; and it certainly would have been better if this suit had been brought earlier, for when are the affairs of mankind to be at rest ? Nay, more than this, it is evident, and indeed not denied by the plaintiff's counsel, that the transaction never would have been impeached if Page had not given so large a price for the estate. This very much shakes my idea of the real value^ of it. If this estate, situate near London, had really been sold at a great under-value, the friends of Mr. Fox must have known it by other means. Supposing the transaction with Page to be purely acci- dental and not springing out of the actual value, it never can affect this question. At the same time it is observable that Mackreth has produced no evidence of the value of the estate, to show that it is not worth more than what he gave Fox. I have been desirous of stating my thoughts on this case, that the gentlemen concerned may be apprised of them, as it will very possibly be necessary. to have this matter discussed further even before me. I have conversed with the Master of the EoUs and the judges, with a wish to find some rule of evidence on which I can go in this case, without running the hazard of shaking too much the contracts of mankind. It is of very little consequence to the public to law down definite rules oilaw, if you have indefi- nite rules of evidence. I shall therefore at present only direct an inquiry into the real value of this estate ; and if upon that inquiry the value should turn out to bear a considerable disproportion to ' The value, as before observed, was immaterial. 212 PURCHASES BY TEUSTEES. what Mackreth gave for it, I shall probably require some assist- ance in laying down such rules of decision as will set men at ease as to the disposition of their property. His Lordship, however, did not direct any such inquiry, r*l48T *but after a lapse of a considerable time affirmed the de- '- -* cree, saying only that he had considered the case very much, and that he could not see that his Honor's decree was wrong. The defendant afterwards petitioned his Lordship for a rehear- ing of the appeal, but that petition was dismissed. See 2 Cox, 158. He then appealed to the House of Lords, assigninj- the reasons set forth in 2 Cox, 330 ; but, on the 14th of March, 1791, the appeal was dismissed with costs. Id. 339 ; 4 Bro. P. 0. 258, Toml. ed. The well-known and thoroughly discussed case of Fox v. Mackreth is usually referred to as having established the rule ever since recog- nised and acted on by Courts of equity, viz., that a purchase by a trustee for sale from his cestui que trust, although he may have given an adequate price, and gained no advantage, shall be set aside at the option of the cestui que trust, unless the connection between them most satisfactorily appears to have been dissolved, and unless all knowledge of the value of the property acquired by the trustee has been communicated to his cestui que trust. " It is founded," observes Lord Eldon, " upon this : that though you may see in a particular ease that the trustee has not made advantage, it is utterly impossible to examine, upon satisfactory evidence, in the power of the Court (by which I mean in the power of the parties), in ninety-nine cases out of a hundred, whether he has made advantage or not. Suppose a trustee buys any estate, and, by the knowledge acquired in that character, dis- covers a valuable coal mine under it, and, locking that up in his own breast, enters into a contract with the cestui que trust ; if he chooses to deny it, how can the Court try that against that denial ? The proba- bility is, that a trustee who has once conceived such a purpose will never disclose it, and the cestui que trust will be efrectuall}^ defrauded:" Ex Parte Lacey, 6 Ves. 627. Lord Thurlow, indeed, in Fox v. llac'k- re^A., when he dissolved the injunction granted, by the Master of the Rolls (see ante, p. 123), and in his judgment, intimated an opinion that it was extremely material to ascertain the value of the estate pur- chased by Mackreth from Fox, his cestui que trust, and proposed to direct an inquiry for that purpose. Ultimately, however, he did not direct any such inquiry, and he afterwards admitted that he was wrong in dissolving the injunction. Fox v. Mackreth, therefore, was decided, not upon the ground that *Mackreth had purchased the estate L -' at an under-value, but that he had purchased it from his cestui que trust while the relation of trustee and cestui que trust continued to FOX V. MACKBETH. — PITT V. MACKRETH. 213 subsist between them, and without having communicated to Fox the knowledge of tlie value of tlie estate which he had acquired as trustee ; for if the relation of trustee and cestui que trust had been clearly dis- solved, and Mackreth bad made Fox fully acquainted with the knowledge which he had acquired of the value of the estate, the purchase would not have been set aside. " In the case of Fox v. Mackreth," says Lord Eldon, " so much referred to, and now become a leading authority, in which I have now Lord Thurlow's own authority for saying he went upon a clear mistake in dissolving the injunction, it was never con- tended that if Fox, in a transaction clear of su.spicion (but which must be looked at with the most attentive jealousy), had discharged Mack- reth from the office of trustee, he would not have been able to hold the purchase. Why ? because, being no longer a trustee, he was not under an obligation not to purchase. But we contended that it was not in the power of Fox to dismiss him ; that the trust was accepted under an ex- press undertaking to the friends of Fox, that the trustee should not be dismissed without their privitj'^ ; that Fox himself had too much imbe- cility of mind as to these transactions : and we contended, that between the dates of Mackreth's taking upon himself the character of trustee and purchasing, he had acquired a knowledge of the value of the estate, by sending down a surve3'or at the expense of the cestui que trust, which was not communicated to the cestui que trust even at the mo- ment of the supposed dissolution of the relation between them ; and, under these circumstances, we contended that Mackreth remained a trustee. This was the princijjle upon which the cause was decided. Either that cause ought to have been decided in favour of Mackreth, or this Court originally, and the House of Lords finally, were right in refusing an issue to try whether the estate was of the value Mackreth gave, or of a greater value at that time. Upon this principle, that was an immaterial fact : for, if the original transaction was right, it was of no consequence at what price he sold it afterwards ; if the original transaction was wrong, Mackreth not having discharged himself from the character of trustee, if an advantage was gained by the most for- tuitous circumstances, still it was gained for the benefit of the cestui que trust, not of the trustee:" Ex parte Lacey, 6 Ves. 627. Lord Eldon, upon several other occasions, in commenting on Fox v. Mack- reth, most strongly insisted that the injunction was dissolved by mis- take, and that the inquiry or issue which *Lord Thurlow, |-^,,„-, although he ultimately refused it, at one time seemed inclined L -' to grant, was pressed for by an argument based on a false principle, viz. that a fair price having been given in the first instance by Mack- reth lie was therefore entitled to the benefit of an accidental rise in the value of the property when he sold it to Page. " I believe," says his Lordship, " that a fair price was given in the first instance ; that is, as aood a price as, according to what was then known, could be obtained. 214 PURCHASES BY TRUSTEES. But the purchaser had received his information as to the value from a surveyor employed at the expense of the trust. In the judgment of this Court and the House of Lords (certainly Lord Thurlow having doubt, to whose doubt the utmost respect is due), Mackreth had not shaken off the character of trustee, but remained a trustee after he sold to himself; and the second sale was in equity to be considered as made, not by the pu.rchaser, but by the trustee buying from himself; and, therefore, though the advantage was righteously obtained, it was ob- tained for the cestui que trust:" Ex parte Bennett, 10 Ves. 394. It has, indeed, been asserted, that in Whichcote v. Lawrence, 3 Ves. 150, Lord Rosslyn considered, that, in order to set aside a purchase by a trustee, it is necessary to prove that an advantage has been gained by him. His Lordship, however, merely said, that he did not recollect any case in which the mere abstract rule came distinctly to be tried, ab- stracted from the consideration of advantage made by the purchaser, and that it would be difficult for such a case to occur: for unless • advantage was made, the act of purchasing would never be questioned : and Lord Eldon disavowed such an interpretation of Lord Rosslyn's doctrine : Ex parte Lacey, 6 Ves. 62Y. See also Ex parte Bennett, 10 Ves. 885 ; Randall v. Errington, 10 Ves. 423 ; Kilhee v. Sneyd, 2 Moll. 186; Ex parte Badcock, 1 Mont. & Mac. 239; the important case of Hamilton v. Wright, 9 C. & F. Ill, 123, 124, 125. That a trustee for sale cannot purchase for himself, whatever may be the nature of the property, real or personal, in addition to the cases already cited, see Killick v. Flexney, 4 Bro. C. C. 161 : Hall v. Hallet, 1 Cox, 134; Pihe v. Vigors, 2 Dru. & Walsh, 262; Price v. Byrne, cited 5 Ves. 681 ; Ingle v. Richards, 28 Beav. 361. Nor can a trustee for him, even at an auction: Campbell v. Walker, 5 Ves. 6'78 ; S. C, Sanderson v. Walker, 13 Ves. 601 ; Randall v. Errington, 10 Ves. 423 ; Watson V. Toone, 6 Madd. 153 ; Baker v. Carter, 1 Y. & C. Exch. Ca. 250. And a purchase from co-trustees is equally objectionable : Hall v. Noyes, cited 3 Ves. 148 ; S. C, 3 Bro. C. C. 483 ; Whichcote v. Law- rence, 3 Ves. 940. Nor will a purchase by trustees at a public auction j-jj, -, *be sustained; for if persons who are trustees to sell an estate are there professedly as bidders to buy, that is a discourage- ment to others to bid. The persons present, seeing the seller there to bid for the estate to or above its value, do not like to enter into that competition : Ex parte Lacey, 6 Ves. 629 ; Ex parte James, 8 Ves. 348; Whichcote v, Lawrence, S Ves. '?40 ; Attorney- General v. Lord Dudley, Coop. 146. Nor can a trustee be allowed to purchase the trust property, by his retirement from the trust with that object in view : Spring v. Pride, 12 W. E,. (V. C. W.), 510. Nor can a trustee purchase before the Master under a decree for sale. (See Price v. Byrne, cited 5 Ves. 681 ; Gary v. Gary, 2 S. & L. 113: but see Wren v. Kirt^n, 8 Ves. 402.) Nor can a trustee purchase from the assignees of his cestui FOX V. MAOKRETH. PITT V. MAOKRETH. 215 que trust in bankruptcy under an agreement to divide the profits, more especially if the purchase-money consists of part of the trust funds j Vaughton v. Noble, 30 Beav. 34. Nor can a trustee purchase as agent for another person : Ex parte Bennett, 10 Ves. 381, 400 ; Gregory v. Gregory, Coop. 204. Upon the same principle, a receiver (Eyre v. IPDonnell, 15 Jr. Ch. Rep. 534 ; Boddington v. Langford, lb. 858) or an agent employed by a trustee in managing a sale cannot purchase : Whitcomb v. Minchin, 5 Madd. 91. Directors of companies being trustees for the shareholders, they can- not purchase shares from the chairman of the company, who is in fact their co-trustee, unless authorized so to do by the constitution of the company or the deed of settlement : Hodgkinson v. The National Live Stock Insurance Go., 26 Beav. 413, 4 De G. & Jo. 422 ; and see The Imperial Mercantile Credit Association v. Coleman, 6 L. R. Ch. App. 558. So the director of a railway company being a trustee for the company, is as such precluded from dealing on behalf of the company with him- self, or the firm of which he is a partner : Aberdeen Railway Company V. Blakie, 1 Macq. 461 ; Flanagan v. Great Western Railway Co., T L. R. Eq. 116. Where a trustee has fairly sold an estate, a subsequent bond fide purchase of the estate from the purchaser is unobjectionable : Baker v. Peck, 9 W. R. (L. C. & L. J.), 412, reversing the decision of Sir J. Stuart, V. C, lb. 186 ; and see Dover v. Buck, 5 Giflf. 5*?. A mortgagee (Downes v. Glazebrook, 3 Mer. 200 ; Waters v. Groom, 11 C. & F. 684); or an annuitant {In re Bloye's Trust, 1 Mac. & G. 488, S. C. nom. ; Lewis v. Hillman, 3 Ho. Lo. GOT, 630), with power of sale, being in fact a trustee for sale, cannot, either directly or by means of his solicitor, except by the express authority of his cestui que trust, purchase the estate upon which the mortgage or annuity is a r;(:-jK9-| *charge. See also Ingle v. Richards, 28 Beav. 361. Nor can the solicitor conducting the sale do so on his own account, at any rate without a full explanation to the parties interested, and putting them in full possession of the facts, and a knowledge that he was to become purchaser for himself. lb. See also Robertson v. Nor- ris, 1 GiflT. 421, 428. A mortgagee, however, does not ordinarily stand in a fiduciary posi- tion towards the mortgagor, so as to render a purchase of the equity of redemption by him from the mortgagor (Knight v. Majoribanks, 2 Mac. & G. 10 ; and see Webb v. Rorke, 2 S. & L. 661, 613 ; Waters v. Groom, 11 0. & F. 684 ; Dobson v. Land, 8 Hare, 220 ; Rushbrook v. Lawrence, 8 L. R. Eq. 25 ; 5 L. R. Ch. 3. See post, vol. 3, notes Howard v. Harris), or from a prior mortgagee selling under a power of sale (Shaw V. Bunny, 33 Beav. 494 ; 2 De G. Jo. & Sm. 468), impracticable. 216 PURCHASES BY TRUSTEES. even, it seems, although the purchaser be a second mortgagee with a trust for sale : Kirkwood v. Thompson, 2 Hem. & Mill. 392 ; 2 De G. Jo. & Sm. 613. But see and consider Parkinson v. Hanbury, 1 Drew & Sm. 613, 2 De G. Jo. & Sm. 450. Transactions, however, between mortgagor and mortgagee are viewed with considerable jealousy, and the sale of the equity of redemption will be set aside where, by the influence of his position, the mortgagee has purchased for less than others would have given, and where there are circumstances of misconduct in obtaining the purchase. Ford v. Olden, 3 L. R. Eq. 461 ; and see Frees v. Coke, 6 L. R. Ch. App. 645, 649. There a mortgagee, who was also a solicitor, obtained a conveyance from the mortgagor, a man in humble circumstances, and without a legal adviser; it was held, that the onus of justifying the transaction, and showing that it was right and fair, was thrown upon the mortgagee. As to a lease from the mortgagor to the mortgagee, see Ford v. Olden, 3 L. R. Eq. 461 ; Hickes v. Cooke, 4 Dow, 16. It seems that a trustee who has become mortgagee of the trust estate will not be allowed to foreclose. " It is the duty," saj's Lord Hatherley, C. (in Tennant v. Trenchard, 4 L. R. Ch. App. 544), "of every trustee to make the most he can of the trust i^roperty for the benefit of the cestui que trust, and the only possibility of saving the estate must be by selling some portion of it. As mortgagee, he is not at all in- terested in doing that, but is interested in foreclosing the estate ; and when he has foreclosed he will become master of the estate, and the whole of the trust which he is bound to protect will be entirely frustrated. So again, if he were only cestui que trust and not mort- gagee, or only trustee and not mortgagee, on a bill being filed for foreclosure, he would immediately try to sell all the propertjr to the -. greatest advantage, in order *to realise sufficient to pay off the '- -" mortgage, and save the estate from destruction. But from the first moment that he becomes mortgagee, it is greatly to his interest that the estate should be at once foreclosed. This case must be put upon the broad principle, that the trustee is in a position in which it is impossible for him, if a foreclosure is granted, to make the performance of his duty coincide with his interest ; and therefore this Court would be bound, even if the mortgage deed gave him the power of foreclosure to say that it was impossible to allow him to foreclose when his duty was to take every possible step for the saving of the estate. In that respect the other observations made by Lord Brougham in Hamilton v. Wright (9 C. & F. 123) are of very considerable force, though the doctrine is so well recognised in this Court that the authoritj- of the House of Lords was scarcely required to affirm it." There is no rule in equity which prevents a surviving partner from purchasing the share of a deceased partner from his representatives {Chambers v. Howell, 11 Beav. 6, 14), or which prevents one of several EOX V. MACKRETH. PITT V. MAOKRETH. 217 residuary legatees from buying the share of another, or ]purchasing for less than tlie amount a charge on the share of another. Barwell v. Barive.ll, 34 Beav. 311, A trustee cannot take a lease from himself: Attorney-General v. Earl of Clarendon, 17 Yes. 500. And with so great jealousy' does the Court look upon a trustee becoming a lessee of the trust property, that even in a case where a testator bad given a trustee power to become lessee, he was removed, principally upon the ground that he was placed in a position in which his interest necessarily came in conflict with his duty. Passin.gham v. Sherborn, 9 Beav. 424. But although a trustee cannot purchase from himself, he can pur- chase from a cestui que trust, who is sui juris, and has discharged him from the obligation which attached upon him as trustee. " Although," observes Lord Eldon, " a trustee who is intrusted to sell and manage for others undertakes, at the same moment in which he becomes a trus- tee, not to manage for the benefit and advantage of himself, it does not preclude a new contract with those who have intrusted him. It does not preclude him from bargaining that he will no longer act as trustee. The cestui que trust may, by a new contract, dismiss him from that character ; but even then that transaction, by which they dismiss him, must, according to the rules of the Court, be watched with infinite and most guarded jealousy ; and for this reason, that the law supposes him to have acquired all the knowledge a trustee may acquire, which may be very useful to him, but the communication of *which to the r 1541 cestui que trust the Court can never be sure he has made, '- -^ ■when entering into the new contract by which he is discharged : " JS.x parte Lacey, 6 Yes. 626. So, in the principal case, it was fully ad- mitted that Mackreth might have dealt with Fox for the purchase of the trust estate, had he done so without taking an undue advantage of his position as trustee, and the knowledge he had acquired in that char- acter. In Coles V. TrecotMck, 9 Yes. 234, a purchase, by a trustee under a trust to sell for payment of debts, of the trust property, as agent of his father, both of whom were creditors and in partnership, was sustained, upon the ground that the trustees did not appear to have interfered in the business up to the sale, otherwise than that they sanctioned the acts of the cestui que trust, and that the cestui que trust had full information, and the sole management of the sale, making sur- veys, settling the particulars, and fixing the prices of the lots, and spe- cific performance of the agreement to purchase was decreed by Lord Eldon in favour of the trustee for sale. " As to the objection," ob- served his lordship, " to a purchase by the trustee, the answer is, that a trustee may buy from the cestui que trust, provided ,there is a dis- tinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee should buj^ ; and there is no fraud, no con- 218 PURCHASES BY TRUSTEES. cealment, no advantage taken by the trustee, of information acquired by him in the character of trustee. I admit, it is a difficult case to make out, wherever it is contended that the exception prevails. The princi- ple was clearly recognised in Fox v. Mackreth, and was established long before. The principle upon which I ever held that case right stands upon this only : not that Mackreth might not have purchased from Pox, and would not have been entitled to the increase ; but that he had not been placed in circumstances to make that contract. See also Horse V. Boijal, 12 Ves. 355, and Clarke v. Swaile^ 2 Eden, 131, in both which cases purchases by trustees were, though with some reluc- tance, sustained : and see the remarks of Sir J. Eomilly, M. R., in Denton v. Donner, 23 Beav. 285 ; see too In re M'Kenna's Estate, 13 Ir. Ch. Rep. 239 ; JBeale v. Billing, Id. 250 ; Luff v. Lord, 34 Beav. 220 ; Franks v. Bollans, 3 L. R. Ch. App. 711. Merely nominal trustees, as for instance, a trustee who has disclaimed, without ever acting in the trust, may become a purchaser (Stacey v. Flph, 1 My. and K. 195 ; Chambers v. Waters, 3 Sim. 42), as may also a mere trustee to preserve contingent remainders : Parkes v. White, 11 Ves. 209, 226. Under the statutes for the redemption of the land tax, the Lords Commissioners are placed in the ^position of vendors; and L -^ therefore, if trustees should purchase the property of the trust under those acts, as they would not be purchasing from themselves but from the Lords Commissioners, the transaction would be valid : Bea- den V. King, 9 Hare, 499. A trustee for infants or persons under disability cannot purchase the trust estate, unless by leave of a Court of equity, because persons not sui juris cannot enter into any contract with him which would have the effect of removing him from the character of trustee, which, as we have already seen, can be done by cestui que trust, who are sui juris. The only terms upon which such trustees may purchase, "is a bill filed : and the trustee saying so much is bid, and that he will give more. The Court would examine into the circumstances ; ask who had the conduct of the transaction ; whether there is any reason to suppose the premises could be sold better ; and, upon the result of that inquiry, would let another person prepare the particular and let the trustee bid :" per Lord Alvanley, M. R., Campbell v. Walker, 5 Ves. 682 ; S. C, 13 Ves. 601. See also 1 Ball & B. 418, and Farmer v. Dean, 32 Beav. 32T. The circumstance that two parties stand towards each other in the relation of trustee and cestui que trust does not affect any dealing be- tween them unconnected with the subject of the trust : Knight v. Majori- banks, 2 Mac. & G. 10. The doctrine which is applicable to purchases by trustees applies also to purchases by persons acting in any fiduciary capacity, which im- poses upon them the obligation of obtaining the best terms for the FOX V. MACKRBTH. — PITT V. MACKRETH. 219 vendor, or -whicla has enabled them to acquire a knowledge of the property. An agent or solicitor employed to sell cannot purchase from his prin- cipal, unless he make it perfectly clear that he furnished his employer with all the knowledge which he himself possessed (Lowther v. Low- ther, 13 Yes. 103 ; and see the great case of The York Buildings Com- pany V. Mackenzie, 8 Bro. P. 0. 42, Toml. ed. ; and see S. C, 3 Paton's Scotch App. Cas. 518, 519, where the judgments of Lord Thurlow and Lord Loughborough are given at length ; Watt v. Grove, 2 S. & L. 492 ; Whitcomb v. llinchen, 5 Medd. 91 ; Woodhouse v. Meredith, 1 J. & W. 204 ; Oliver v. Court, 8 Price, 12f) ; and the moment it appears in a transaction between principal and agent that there has been any underhand dealing by the agent, — that he has made use of another per- son's name as the purchaser, instead of his own, — ^however fair the transaction may be in other respects, from that moment it has no validity in equity: Trevelyan v. Charter, 9 Beav. 140; Charter v. Trevelyan, 11 C. & F. T14; Lewis v. Hillman, 3 H. L. Cas. 60T ; *Walshain v. Stainton, 1 De G. Jo. & Sm. 618. See also r^ir/.-| Murphy v. O'Shea, 2 J. & L. 420, in which case it was argued that there was no proof that lands were sold to an agent at an under- value. Sir .Bdward Sugden, L. C, however, observed, " It is perfectly well settled that it is not necessary to prove under-value. A principal selling to his agent is entitled to set aside the sale upon equitable grounds, whatever may have been the price obtained for the propertJ^" In Crowe v. Ballard, 3 Bro. C. C. Ill, Lord Thurlow thought that the person employed to sell could not be permitted to buy, and even if that were done with the knowledge of the party selling, it could not be sup- ported ; and that the principle must prevail, even if he had bought fairl3\ Lord Thurlow, however, it is conceived, did not mean to lay down, as a general rule, that an agent could in no case purchase from his principal ; he spoke probably with reference to the case he was deciding, which was one of gross fraud. At any rate, it is clear now, that an agent to sell can iDurchase from his employer, if he comply with the rule laid down in Lowther v. Lowther. " The rule of the Court," observes Sir Edward Sugden, L. C. of Ireland, " does not prevent an agent from purchasing from his principal, but only requires that he shall deal with him at arm's length, and after a full disclosure of all that he knows with respect to the propertj' :" Murphy v. O'Shea, 2 J & L. 425. If an agent employed to make a purchase purchases for himself, he will be held a trustee for his principal: Lees v. Nuttall, 1 Russ. & My. 53 ; S. C, 1 Toml. 282. So, also, if he is employed to obtain a lease, he shall not take it for his own benefit ( Taylor v. Salmon, 4 My. & Cr. 134) ; nor will an agent employed to settle a debt due from his piincipal be permitted to derive any benefit from it by purclasing it 220 PURCHASES BY TRUSTEES. himself; because it is his duty, on behalf of his employer, to settle the debt upon the best terms he can obtain ; and if he is enabled to procure a settlement of the debt for anything less than the whole amount, it would be a violation of bis duty to his employer, or at least would hold out a temptation to violate that dutj', if he might take an assignment of the debt he was emplo3'ed to settle, and so make himself a crtditor of his employer to the full amount of the debt which he was employed to settle : if, therefore, an agent obtained under these circumstances an assignment of a debt due from his principal, he would be held a trustee for his principal, and would only be entitled to the sum he actually paid for the debt: Beed v. Nor7-is, 2 My. & Cr. 314. Nor will an agent employed to purchase be permitted, unless by the plain and express consent of his principal, to make any profit bj' becom- |-^. f.^-| ing a seller to him. This *doctrine is recognised by Lord Thur- low in Hast India Company v. Henchman, 1 Ves. jun., 289, where he observes, " If, being a factor, a man buy up goods which he ought to furnish as factor, and, instead of charging porterage duties, or accepting a stipulated salary, he takes the profits, and deal with his constitutent as a merchant, this is a fraud for which an account is due." If an agent employed by his principal to obtain another to do work for him, for instance, as a sub-contractor, it would be fraud cognizable in equity if the agent entered into a contract at a preposterous price in order that he and the siib-eontractor might divide the profits to accrue from it. Holden v. Webber, 29 Beav. IIT, 120 ; in which case, however, under peculiar circumstances, the Court refused to grant any relief. There the plaintiff Holden, a contractor for works on a railway, em- ployed Cowdy as his agent to get a sub-contractor to do a portion of the works. Cowdy accordingly, as agent, entered into a contract with Webber. An allowance of £5 per cent, was made by Webber to Cowdy. After the work had been finished, Holden filed a bill against Webber and Cowdy to set aside the contract between him and Webber, to re- strain Webber from proceeding against him at law for the balance due to him on the contract, and that Cowdy might be decreed to pay to him the sums received or retained by him on account of such contract. It appeared in evidence that Cowdy had been the means of obtaining the contract for the plaintiff from Messrs. Peto and Betts, for which he was to receive £5 per cent, from the plaintiff. It was admitted that Webber had made to Cowdy an allowance of £5 per cent, on his con- tracts, that it was the ordinary practice of the trade to make such an allowance to an agent obtaining a contract, and that the plaintiff had been in the habit of doing so himself, ^ir J. Romilly, M. R., dis- missed the bill. " I am not," said his Honor, " at all satisfied as to what was the situation of Cowdy with respect to Webber, whether, in fact, the services which he performed, the inquiries which he made, and the superintending various matters, were to be considered as acts of FOX V. MACKRETH. — PITT V. MACKRETH. 221 agency clone for the plaintiff; for if not, this might properly be paid for by Webber. The situation between the parties, and their relative rights and positions, are not clearly ascertained by the evidence in this case ; and, in addition to these circumstances, there also appears to be, that which I cannot call a custom (a word which has a legal and a technical meaning), but rather a practice which prevails on the part of contractors of giving to the officers and servants of the railway companies who obtain these contracts for them, remuneration in the shape of commission *on the price of the work to be done. Now, whether it is a gift or calculated as commission is a mat- ^ -I ter of very little importanQ| ; but that this practice prevailed, and that the plaintiff knew it prevailed, and was himself in the habit of acceding and conforming to it, is, in my opinion, estabhshed by the evidence in the case. I think he must have known what occurred in that respect, or must have had good reason to belieVe, if he had turned his atten- tion to the subject, that such was the course adopted here." And after dismissing the bill as against Cowdy without costs, without prejudice to the plaintiff bringing any action against him, his Honor said, " I wish that no decree of mine should fetter the question, but I mean to express nothing that can be construed into an encouragement of the practice I have alluded to." Upon the same principle, where one of several partners was employed to purchase goods for the firm, and he, unknown to his co-partners, purchased goods of his own at the market price, and made considerable profit therebj' : It was held by Sir J. Romilly, M. R., that the transac- tion could not be sustained, and that he was accountable to the firm for the profit thus made: Bentley v. Graven, 18 Beav. T5 ; Williams v. Trye, Ih. 366, 3Y1 ; Perens v. Johnson, 3 Sm. & G. 419; Burton v. Wookey, 6 Madd. 361. So in Richie v. Gouper, 28 Beav. 344, it was held that one of several co-owners of a ship, who acted as ship's hus- band,, was only entitled to charge the cost price of supplies to the ship furnished by him in the course of his business. See also Beck v. Kan- toroioicz, 3 K. & J. 230. So, also, in Massey v. Davies, 2 Ves. 31T, an agent for a colliery, who it was stipulated was to have no emolument beyond his salary, was decreed to account for the profits made by sell- ing to his principal timber belonging to himself and another person, with whom he had clandestinely entered into partnership, under the name of that person. In this case the partner was held to have no knowledge that the agent was acting contrary to his trust ;, otherwise he would have been held bound, for not only the agent acting contrary to his trust, but a man who, knowing the agent to be guilty of a breach of trust, entered into a transaction with him, will be answerable. Upon the same principle where a person is employed as a stock- broker, if he himself purchase the stock of his employer, or sell his own fitock to him, without his knowledge, such sales and purchases will be 222 PURCHASES BY TRUSTEES. set aside. See Brookman v. Rothschild^ 3 Sim. 153 ; 2 D. & C. 188 ; 5 Bligh. N. S., 165. So in Gillett y. Peppercorne (3 Beav. 18), the plain- tiff employed the defendant, a stockbroker, to purchase some canal shares, and he bought them from a person who, though ostensibly owner, was *a mere trustee for himself: Lord Langdale, M. R., •- -^ set aside the sale with costs. " It is said," observed his Lord- ship, " that this is every day's practice in the city. I certainly should be very sorry to have it proved to me that such a sort of dealing is usual ; for nothing can be more open to the commission of fraud than transactions of this nature. Where a man employs another as his agent, it is on the faith that such agent will act iin tlie matter purely and dis- interestedly for the benefit of his employer, and assuredly not with the notion that the person whose assistance is required as agent has himself in the very transaction an interest directly opposed to that of his prin- cipal." See also, The Bank of Bengal v. Macleod, 1 Moore, P. C. 0. 35, 46. See Sug. Prop. 662. Upon the same principle a solicitor emploj^ed in making a purchase is accountable to his clients for the benefits which he may have derived clandestinely from a sale to them of his own property. See The Bank of London v. Tyrrell, 21 Beav. 213 : there a solicitor was active in founding a banking company. Before its establishment he entered into a secret arrangement with a stranger, that the latter should pur- chase some property eligible for the banking house on a joint specula- tion. After its establishment the company purchased part of the premises for their banking-house, not knowing that their solicitor was interested in it. It was held by Sir John Romilly, M. E., whose decision was aflSrmed by the House of Lords (10 Ho. Lo. Ca. 26, nom. Tyrrell v. The Bank of London), that the solicitor ought to account to the company for all the profit made by him in the transaction, but that the stranger was under no such liability. See also Chaplin v. Young, 33 Beav. 414. A solicitor having, under a decree, the conduct of a sale, is under an absolute incapacity to purchase at it: Atkins v. Delmege, 12 Ir. Bq. Rep. 1. And see In re Bonayne's Estate, 13 Ir. Ch. Rep. 444. And the better opinion seems to be that, although a solicitor may not under a decree actually have the conduct of the sale, if he has inter- vened on behalf of parties interested in the sale so as to render it his duty towards them to assist in procuring the best price for the prop- erty offered for sale, he ought not to be allowed to purchase it for him- self. See Guest v. Smythe, 5 L. R. Ch. App. 551. There B. Gibbons, a mortgagee for 8,000Z., and J. Guest, his sub-mortgagee, in 1863 insti- tuted a suit against the persons interested in the equity of redemption of the mortgaged property. B. Gibbons died, and the suit was revived by Emily Gibbons, his personal representative. Mr. Wight was solicitor for the plaintifi's in the suits of Gibbons v. Gibbons and Berry v. Gibbons, FOX V. MACKRBTH. PITT V. MACKRETH. 223 * instituted for the administration of the estate of B. Gibbons, r^n^j.-! On the 23rd of January, 18G5, a decree was made in Guest v. *- Smythe, directing a sale in case of non-payment of what should be found due on the mortgage. On the 19th of April, 1869, Mr. Wight applied in Gibbons v. Gibbons, for leave to apply in Guest v. Smythe, for an order enabling the plaintiff in Gibbons v. Gibbons, to attend the pro- ceedings, which leave was given. On the 13th of July, 1869, Mr. Wight got the consent of the solicitors to the plaintiff' in Guest v. Smythe to his obtaining an order for the" plaintiff in Gibbons v. Gibbons, to attend the proceedings in Guest v. Smythe, and on the Stth of July, 1869, a summons, returnable on the 30th, was taken out for the plaintiff in Gibbons v. Gibbons to have liberty to attend the proceedings in Guest V. Smythe, upon which the order was made, but was dated on the 4th of August in consequence of the delay in obtaining an affidavit of ser^dce on some of the parties. No person attended any appointment in Guest v. Smythe until after this order had been made. In the meantime, on the 29th of July, the mortgaged property was put up for sale. It does not appear that Mr. Wight in any way inter- vened in the preparations for the sale, or that he was consulted with regard to the particulars or the reserved bidding, which was fixed at 5,600Z. On the printed particulars and conditions of sale which were issued was this notice : " Particulars and conditions of sale may be ob- tained in London, of the following solicitors . . . ., aiid in the country of Messrs. Galdicott & Canning, UucUey ; Mr. Wight, Dudley ; Messrs. Hodgson & Son, Birmingham, and of the auctioneer." Mr. Wight attended at the sale, and bid in person for Lot 1, which was knocked down to him at 6,110Z. The chief clerk certified the re- sult of the sale on the 3rd of August, and the certificate was signed and approved by the judge on the 9th. It was held by Lord Romilly, M. R., upon a summons taken out by a person interested in the estate, that Mr. Wight stood in such a fiduciary position as disqualified him from becoming a purchaser of Lot 1, and directed it to be put up for sale at 6,110/., Mr. Wight to be the purchaser if no one bid more than that sum. " First," said his lordship, " I have to consider what was the position of Mr. Wight. He was the solicitor of certain creditors of Mr. Gibbons, and in that character was employed to take steps for the purpose of intervening in the suit, and having some management in the suit, for which purpose he obtained an order, though not until a day or two after the sale. That, however, was Ms character ; he, therefore, was representing *the creditors in the cause. The sale was |-^,„j-| clearly a sale on behalf of the persons interested in the mort- L gage. It was for the purpose of all the creditors, therefore, and they were as much interested in its being a good sale, in order that there might be sufficient to pay them, as any other person ; and Mr. Wight was their solicitor, and only their solicitor .... Mr. Wight applied 224 PURCHASES BY TRUSTEES. to intervene in their behalf, and I consider that when his name was added as one of the solicitors for the vendor, he was to act on their behalf, and to make the sale as effective as it could be for them. That being his character, I do not think he was in a situation in which he was able to buy .... It was the duty of Mr. Wight to give all his assistance to obtaining the best possible price, and his name was put upon the list as one of the solicitors for that purpose .... Observe, what might in many cases be the effect of a bidding by a person in Mr. Wight's position. Upon seeing the person bid whose name was put on the particulars as one of the solicitors concerned in the sale, people might suppose that the property was bought in, and that it was not an effectual sale," 5 L. R. Ch. App. 553, 554, n. The decision of Lord Romilly was reversed by Lord Justice Giffard sitting alone, who was of opinion that the rule as laid down by Lord Romilly was not essential for the ends of justice, and not at all essential for the purpose of insuring a fair sale, but on the contrarjr, would tend to depreciate sales by the Court. It appears, however, to be clear, that Lord Romilly's decision is in strict accordance with the principles laid down by Sir John Leach in Grover v. Hugell, 3 Russ. 428 ; by Lord Cottenham in Re Bloye's Trusti<, 1 Mac. & Gf. 488 ; and by Lord Langdale, in Qreenlaw v. King, 3 Beav. 49 ; viz., that where a person has put himself in such a position towards other parties, by which it becomes his duty to obtain the highest price for property in which they have an interest, he cannot be allowed by becoming a purchaser to put himself in a position antago- nistic to the duties he has undertaken. The sub-mortgagee, Mr. Guest, appears to have been represented by Messrs. Caldicott & Canning, and they would, therefore, be only interested in obtaining from the sale sufficient to pay the sum due on the sub-mortgage (the amount of which is not stated in the report). The creditors, represented by Mr. Wight as their solicitor, and after them Emily Gibbons, the personal representative of Mr. Benjamin Gibbons, were deeply interested in the sale being conducted in such a way as that it should produce more than sufficient to pay the amount of the sub-mortgage. Mr. Wight, solicitor r*lfi91 ■^°'^ ^^^ creditors, clearly *intervened for the purpose of pro- tecting their interests, whereby it became his dutj', as observed by Lord Romilly, " to make the sale as effective as possible." The very difficulty of ascertaining whether this was done or not, necessitates the strict application of the rvile so well laid down by Lord Romilly — which if carried out as it ought to be, with unvarjdng strictness, would not, it is believed, have, as supposed by Lord Justice Giffard, a tendency to depreciate sales by the Court, but would pre- vent solicitors wishing to become purchasers of property, from putting themselves into positions in which their interests conflicted with, their duties. FOX V. MACKRETH. — PITT V. MACKRETH. 225 An agent or steward may take a lease from his employer or prin- cipal ; {Lord Selsey v. Bhoades, 2 S. & S. 41 ; 1 Bligh, N. S., 1) ; but it must always be difficult to sustain such a lease in a court of equity, as it must be proved that full information has been imparted, and that the agreement has been entered into with perfect good faith : Molony V. Kernan, 2 D. & W. 31. Where a surety gets rid of, and discharges an obligation, at a less sum than its full amount, he will not be allowed, as against his prin- cipal, to make himself a creditor for the whole amount, but only for the amount which he has actually paid in discharge of the common obligation : Beed v. Norris, 2 My. & Cr. 361, 315; Ux parte Bush- forth, 10 Ves. 420 ; Butcher v. Churchill, 14 Ves. 561. Executors or administrators will not be permitted, either immedi- ately or by means of a trustee, to purchase for themselves any part of the assets, but will be considered as trustees for the persons interested in the estate, and must account to the utmost extent of the advantage made by them of the subject so purchased : Hall v. Hallet, 1 Cox, 134 ; Killick V. Flexney, 4 Bro. C. C. 161 ; Watson v. Toone, 6 Madd. 153 ; Eilbee v. Sneyd, 2 Moll. 186 ; Baker v. Carter, 1 Y. & C. Exch. Ca. 250 ; Naylor v. Winch, 1 S. & S. 566 ; Cook v. Collingridge, Jac. 601 ; Wedderburn v. Wedderburn, 4 My. & Cr.. 41. So, if they compound debts or mortgages, or buy them in for less than is due upon them, they will not be allowed to retain any benefit from the transaction for themselves, but for the estate. See Anon., Salk. 155 ; Ux parte James, 8 Ves. 346 ; Ex parte Lacey,-& Ves. 628. Assignees of a bankrupt cannot in any case purchase his property. This may be laid down as a general rule, which will be more peculiarly applied with unrelenting jealousy, from the impossibility of reaching the transaction, and, moreover, because the assignee has the bankrupt and his property altogether under his own disposal ; (see £x parte Chadwick, cited in Montague and Ayrton's book on Bankruptcy, vol. 1, 329, 2nd ed. ; Ex parte *Lacey, 6 Ves. 623; Ex parte |-^,„„-, Hughes, 6 Ves. 611 ; Ex parte James, 8 Ves. 331 ; Ex parte L ^ Tanner ; Ex parte Atwood ; Owen v. Foulkes, 6 Ves. 430, n. ; Ex parte Bage, 4 Madd. 459 ; Ex parte Badcock, 1 Mont. & Mac. 231 ; Turner v. Trelawny, 12 Sim. 49 ; Ex parte Thwaites, 1 M. & A. 323 ; Ex parte Alexander, 2 M. & A. 492) ; nor can his partner buy : Ex parte Burnell, 1 Jur. 116. In Whelpdale v. Cookson, 1 Ves. 9, 5 Ves. 682, Lord Hardwicke, confirmed a sale of a bankrupt's estate to an assignee, in case the majority of the creditors should not dissent; but Lord Bldon, in Ex parte Lacey, 6 Ves. 628, doubted the authority of that case : " If," said his Lordship, " the trustee is a trustee for all the creditors, he is a trustee for them all in the article of selling to others ; and if the jealousy of the Court arises from the difficulty of a cestui que trust duly informing himself which is most or least for his VOL. I 15 226 PURCHASES BY TRUSTEES. advantage, I have considerable doubt whether the majority in that article can bind the minority :" Ex parte Thwaites, 1 M. & A. 323. But in a recent case, on payment of costs, a purchase by an assignee on being found beneficial by the Court was confirmed ; (Ex parte Gore, 6 Jur. 1118 ; 3 M. D. & De G. IT ; 1 Jur. 136) ; and an assignee has been removed by the Court in order that he might bid at a sale of the bankrupt's estate ; (Ex parte Perks, 3 M. D. & De G. 385) ; and in a case where tlie Court refused to allow an assignee to bid, he was allowed to name the price he would give if the property were not sold by auction, and afterwards to buy at that price ; Ux parte Holyman, 8 Jur. 156. The Court of Chancery will rarely allow persons conducting a sale to bid at it. Thus, when those who are interested in an estate insist that a trustee ought not to be allowed to bid, the court will give so much weight to their wishes, as to say, although the trustee may be also mortgagee, that until all other ways of selling be exhausted he shall not be allowed to buy. ( Tennant v. Trenchard, 4 L. R. Ch. App. 54*1.) But if the court is satisfied that no purchaser at an adequate price can be found, then it is not impossible that he may be allowed to make proposals and become a purchaser. (lb.) So where a sale is directed by the Court of Chancery of partnership property upon a dis- solution of partnership, liberty to bid at the sale will only be given to such of the partners as have not the conduct of the sale: Wild v. Milne, 26 Beav. 506. As to the purchase of debts due from the bankrupt by the assignee, it has been decided that, as the assignees cannot buy the estate of the bankrupt, so, also, they cannot for their own benefit buy an interest in r*ifiestate bring the best price, and cannot buy without being subject to have the sale set aside at the election of the credi- tors. In all cases where the prop- erty is vested in a trustee, with power to sell, or where there is a power in one to sell, the title re- maining in the cestui que trust, or the aid of a solicitor is called in, or where there is an agent to aid in effecting Lhe sale, such persons cannot be permitted to buy the property, denuded of the trust, and if any interested, especially the cestui que trust, calls in ques- tion the purchase, that it was fair, is no defence ; the trust attends it." In SaUmarsh v. Beene, 4 Porter, 283, the rule was applied to a commissioner appointed by the Orphans' Court to sell lands, who was held incapable to buy directly or indirectly, in whole or in part ; and a receiver is obviously within the scope of the same principle ; Jewett V. Miller, 10 New York, 402. It is equally settled, that an agent to sell cannot be the pur- chaser, nor an agent of the pur- chaser, because he is bound to act exclusively- for the benefit of the vendor ; Cumberland v. Sherman, 30 Barb. 553 ; Remick v. Butter- field,\l Foster, 10; The Cumber- land Goal Co. y.tiSherman, 30 Barb. 553. A sale by an agent to himself is void in law, and if the transaction assumes such a form' as to be valid in law, equity will make him a trustee for his princi- pal ; see Teakle v. Bailey, 2 Brock- enbrough, 44, 51 ; Banks v. Judah, 8 Connecticut, 146, 157 ; Church V. Marine Insurance Company, 1 Mason, 341, 344 ; Barker v. Marine Insurance Company, 2 Id. 369 ; Copeland v. Mercantile Ins. Co., 6 Pickering, 198, 204; Pensoneacer. Bleakley, 14 Illinois, 15. So, if a trustee or agent to sell, in a deed, makes a sale in which he is to be at all interested, the trans- action may be set aside in equity by the cestuis que trust ; Armstrong V. Campbell, 3 Yerger, 202, 236 ; HuntY. Bass, 2 Devereux's Equity, 292, 295 ; and where a mortgagee with power to sell, makes a con- veyance to a third person, and immediately takes a re- conveyance to himself, though the value of the premises is not greater than the mortgage debt, the heirs may set aside tlie sale, as of course ; Bob- son V. Baccy, 3 Sandford, 61. And the same thing is applicable to ju- dicial and legal officers. A sheriff selling land on execution cannot be a purchaser directly, or through the medium of a third person, who purchases in secret trust for him ; Lessee of Lazarus v. Bryson, 3 Binney, 54, 58 ; Carter, &c. v. Harris, 4 Randolph, 199, 204; Parkins v. Thompson, 3 New FOX V. MACKRETH. — PITT V. MACKRETH. 251 Hampshire, 144 ; and a purchase by a tax collector is within the scope of the principle, even after the expiration of the period fixed by the law for redemption ; Chandler y. Moulton, 33 Vermont, 245. An attorney in the execution is also incapable of purchasing for himself, without his client's consent, unless for a price sufficient to cover the client's demand ; Moore v. Moore, 4 Sandford's Ch. 3'7 ; 1 Selden, 256 ; and if an attorney acts for two or more clients, and buys for one, the others have an equity to claim the equal benefit of the purchase ; Leisenring v. Black, 5 Watts, 303, 305; Haiuley v. Cramer, 4 Cowen, 719, 139 : and see Howell v. Baker, 4 Johnson's Chancery, 118, 120 ; and this dis- ability reaches all who take part officially in the process of sale, or even in the preliminary steps that precede it ; and it has therefore been held that an appraiser of the property for an administrator's sale, cannot purchase at the sale ; Armstrong v. Huston's Heirs, 8 Ohio, 552. There is no objection, however, to a purchase by a mort- gagee, or creditor, under an execu- tion issued by him or others ; Lyon V. Jones, 6 Humphreys, 533 ; Mur- doch's case, 2 Bland. 461, 468. [It will make no difference in the apx)lication of the principle that the agent is also a judgment credi- tor, and effects the sale through an execution issued on the judg- ment, and not in his character as agent, because the acceptance of the agency puts him under an ob- ligation to postpone his interest to that of the principal, and do nothing that can prejudice the latter ; Jameson v. Glasscock, 29 Missouri, 191; Rogers v. Rogers, Hopkins, Ch. n. 3, 3 Wend. 504 ; Martin v. Wynkoop, 12 Indiana, 266. It seems that a trustee, agent, or other person acting in a fiduciary capacity, who is liable as a surety or guarantor for the debt on ac- count of which the sale is made, may buy the property and hold it as a counter security, subject to the right of the principal or cestui que trust to redeem on tendering an indemnity against the obliga- tion incurred for his benefit ; Smith V. Lansing, 22 New York, 520. The rule is a general one, and will apply not merely where the trust or confidence is actually be- trayed, but where the circumstan- ces are such that there is a temp- tation to violate it : Moore v. Moore, 4 Sandford, Ch. 31; I Selden, 256 ; Henry v. Raiman, 12 Casey, 354, 359 ; Statts v. Ber- gen, 2 Green, Ch. 559. Hence, an agent or attorney employed to collect a debt, cannot buy the prop- erty of the debtor at a sale under an execution issued in the course of the agency, for less than the amount of the debt ; Moore v. Moore; Leisenring v. Black, 5 Watts, 303 ; Campbell v. M'Lain, 1 P. F. Smith, 200 ; Howell v. Ba- ker, 4 Johnson, Ch. 118 ; Wade v. Pettibone,n Ohio, 57 ; 14 Id. 557 ; Stockton V. Ward, 11 Howard, 232, 248 ; because his interest as a buyer might induce him to force a sale to the injury of his principal: lb. And the better opinion would 252 PURCHASES BY TRUSTEES. seem to be, that an attorney can- not purchase any interest in the thing or property in litigation, to the prejudice of his client while the litigation still continues ; Hill V. Hallett, 1 Cox, 134 ; nor until it is to all intents and purposes at an end : dinger v. Beimer, 3 W. & S. 486. The same result will follow, where an agent, employed to obtain information with a view to a purchase, misap- plies what he learns, by buying for his own benefit ; Held v. Stan- ley, 6 W. & S. 3T6 ; or when one duly authorized to make insur- ances, or to issue policies on behalf of an insurance company, insures his own property, without the express sanction of his princi- pals, thus bringing his interest into conflict with theirs, in a way to influence his judgment ; Bentleyv. The Columbia Ins. Co., 19 Barbour, 595.J Where a person stands in the situation of a trustee for others, and bound as such to protect the general interests of those for whose benefit the trust was created, in regard to the subject of the sale, he is equally incapacitated from purchasing for his own benefit, at a sale under an adverse proceeding, and at a judicial sale, as at his own sale, under his powers as trustee ; Elliott v. Poole, 3 Jones, Eq. 17 ; Freeman v. Harwood, 49 Maine, 195 ; Ricketts v. Mont- gomery, 15 Maryland, 46 ; Jami- son V. Glasscock, 29 Missouri, 191 ; Martin v. Wyncoop, 12 Indi- ana, 266 ; Hoitt v. Wehh, 36 N. H. 159; Jewett v. Miller, 10 New York, 402 ; Chandler v. Moulton, 33 Vermont, 245. The reason is obvious ; as general trustee of the subject, it is his duty to make it bring as much as possible, at any sale that may take place ; and therefore he cannot put himself in a situation where it becomes his interest that the property should bring the least sum. In Chapin v. Weed and others, 1 Clarke's Chan- cery, 464, the assignee of all a debtor's property under a general assignment in trust for the pay- ment of debts, bought a part of the trust property at a master's sale under a previous mortgage : but it was decided that the creditors had a right to the purchase, the assignee being a trustee for them, and that although the sale was a judicial one, and there was no pre- tence of collusion or connivance by the assignee to procure the sale, and the sale was public, and there was no contrivance 'to pre- vent persons from bidding, still, without a special authority from the court, the trustee could not become a purchaser for his own benefit : " The rule in relation to all classes of trustees," said the court, " is well settled. A trustee cannot purchase or be interested in the purchase of the trust estate, or any part thereof. He cannot derive any private advantage from the sale of the trust property committed to his guardianship ; and all the advantages which he does thus acquire, shall result to the benefit of the cestui que trust." In Campbell v. Johnson and others, 1 Sandford, 148, a testator ap- pointed two persons his executors, and the guardians of his children. FOX V. MACKRBTH. — PITT V. MACKRETH. 253 and devised all his estate to them in trust to sell for the benefit of his heirs. The land was subject to mortgages given by, the testa- tor, and under one of them it was sold, and one of the executors pur- chased. The court held that the sale must be set aside on the ap- plication of the heirs, upon the ground that in both capacities, as trustees to sell and as guardians of the children, the executors had a duty to perform in regard to the property, which rendered it in- equitable for either of them to be- come a purchaser. In McGinn v. Shaeffer, 1 Watts, 412, 415, also, it was held that a trustee for an infant, suffering the property to be sold under incumbrances, and buying it in, is a trustee for the infant. In Gallis & Seems v. Ridout & Ringgold, 7 Gill & Johnson, 2, T, commission- ei's had been appointed to hold and sell lands for certain purpo- ses, and one of them bought a part of the land under an adverse judgment; it was held that this could not enure to his own benefit, taut must be applied to the objects of the trust, after reimbursing to him the amount of his purchase- money and all proper and neces- sary expenses. In Bell et al. v. Webb & Mong, 2 Gill, 164, ITO, a trustee in a deed of trust to sell for the payment of debts, purchased through his agent, at a sheriff's sale, a part of the property. "One of the questions which arises in this case," said the court, " is, whether a trustee can be permitted to purchase the cestui que trust's property, levied upon and sold at a sheriff's sale, without any instru- mentality of his : " and upon the authority of the preceding case, it was decided that the cestui que trust was entitled to the benefit of the purchase, though the trustee had a just claim to be reimbursed for his expenditures in the pur- chase. In Evertson v. Tappen, 5 Johnson's Chancery, 498, 514, it was held that an executrix who was the widow of the testator and the natural guardian of his chil- dren, could not' buy the property for herself at a sale under a mort- gage given by the testator in his lifetime ; Torrey v. Bank of Or- leans, 9 Paige, 650, 653 ; S. C, affirmed, 1 Hill, 260, establishes the same point, which may also be found in Martin v. Wyncoop, 12 Indiana, 266. In Van Epps v. Van Epps, 9 Paige, 238, 241, a person who held a second mort- gage in trust for third parties, bought in the premises for himself at a sale under the first mortgage, for a sum insufficient to satisfy both mortgages. " The defend- ant," said the Chancellor, "is wrong in supposing that he was authorized to become the purcha- ser of the farm, under the master's sale upon the prior mortgage, for his own exclusive benefit, to the prejudice of the subsequent mort- gage, which he held in trust for others. The duty of the trustee, as the holder of tlie junior mort- gage, was to make the mortgaged premises, if possible, produce upon the sale sufficient not only to pay off the prior incumbrance, and tlie costs of foreclosure, but also to satisfy the subsequent incum- 254 PURCHASES BY TRUSTEES. brance which he held in his fidu- ciary character ; and this duty came directly in conflict with his interest, as a purchaser for his own benefit, to bid in the property at the lowest sum for which he could obtain it ; Jeweft v. Miller, 10 New York, 402, 405. Against this clear application of a safe and conservative princi- ple of equity, two American cases stand opposed ; Prevost v. Gratz, 1 Peters' C. C. 365, 318, where Washington, J., said that a pur- chase by a trustee or executor at a sherifi''s sale was not prohibited; and Fisk v. ^arber, 6 Watts & Sergeant, 18, where it was held (Rogers, J., dissenting) that the assignee of an insolvent debtor might purchase at a sale under a mortgage existing previously to the mortgage. The reasoning of Kennedy, J., in this case, is wholly unsound, and proceeds upon the error of overlooking the former of the two principles stated in the beginning of this note, as distin- guished from the la.tter of them : the accurate view of the law upon the subject then before the court is to be found in the dissenting opinion of Rogers, J. See Cad- hunj v. Duval, 10 Barr, 265, 272. [In Ghorpenning's Appeal, 8 Ca- sey, 315, Prevost v. Gratz was, nevertheless, cited with approba- tion; and held to justify a purchase by a guardian at a sheriff's sale un- der a judgment against the ancestor from whom the land had descended to the ward. See Eager v. Eager, 9 Richardson, Eq. 211 ; Elrod v. Lancaster, 2 Head. 511; Mercer V. Newsom, 23 Georgia, 151. The principle has been recognized in other instances, and would appear to be the established rule in Penn- sylvania. Moore'' s Appeal, 10 Ca- sey, 29. It does not, however, apply when the sale is brought about or procured by the trustee, as where he issues the execution or causes it to be issued by an- other. ParshalVs Appeal, 15 P. F. Smith, 224, 235; Campbell v. McLain, 1 Id. 209. And the case is substantially the same where an executor suffers land to be sold by the sheriff, which he might have sold in person under an authority conferred by the appropriate tri- bunal, because one who permits that which it is his duty to prevent, is in fact the actor, and should not profit by his own laches. See Mears v. Eamillon, 5 Casey, 15. In ParshalVs Appeal, 15 P. P. Smith, 224, the heirs of an intestate entered into a contract of sale with one Parshall, who was their near relative and the administrator of the estate, conditioned that if Par- shall did not pay the price on or before a certain day the contrac should be void, and he should pro- ceed to sell the land for their bene- fit. Parshall failed to pay th monpy by the time prescribed, but resold the premises for his own account to the holder of an out- standing judgment, with a stipu- lation that the latter should issue an execution, buy in the land, and pay him the difference between the amount of his bid and the price agreed on. The court held this agreement fraudulent as against the heirs, and that they were entitled to the full amount re- FOX V. MACKBETH. — PITT V. MACKRBTH. 255 ceived bj' Parshall from the pur- chaser, although exceeding the sum which he originally agreed to give. An agent, trustee or other per- son, holding a fiduciary relation, who is under a disability to buy for himself, cannot buy for an- other: Bemick v. Butterjield, 11 Foster, "TO ; The Cumberland Coal Co. V. Sherman, 30 Barb. 553 ; Brachenridge v. Holland, 2 Black- ford, 37*7 ; Martin v. Wyncoop, 12 Indiana, 266 ; nor can he acquire title through a purchase made by another for his benefit. Abbott v. The American Ins. Co., 33 Barb. 2*78; Forb'^s v. Halsey, 26 New York, 53. Such an indirection darkens the blot which it is intended to con- ceal, as indicating collusion, and a conscious desire to obtain an un- due advantage at the expense of the trust. Accordingly, where the purchaser at such a sale re-conveys the property at once, or within a brief period, to the executor or trustee, the presumption is that he was used as a tool or cover, and the transaction will be set aside as a constructive, if not ac- tual fraud. Obert v. Obert, 2 Stockton's Ch. 98 ; 1 Beasley, 423 ; Bosenbe7-g's Appeal, 2 Casey, 61. And as the defect is apparent on the face of the record or title papers, a third person buying sub- sequently will be affected with no- tice, and cannot hold the land; Bosenberger's Appeal. The pre- sumption may, however, be re- pelled, and does not apply where it is made to appear with suffi- cient clearness that the purchaser bought for himself, and that there was no concert between him and the trustee ; Waterman v. Skin- ner, 1 Beasley, 423. In Waterman V. Skinner, the court refused to interfere, although the executor purchased the premises immedi- ately after the sale, from a bidder who, as it would seem, had not paid. Such transactions should, nevertheless, be scrutinized with jealous care; and it is very clear that, tlie disability continues until the sale is consummated by pay- ment and the delivery of the deed. Until then, the vendor is acting on behalf of the cestui que trusts, and cannot acquire an interest in the property confided to his care ; Bosenberger's Appeal."] It is admitted, in all the cases, that a trustee may purchase by consent of the Court of Chancery, to be obtained by his filing a bill and showing the circumstances, and making out a sufficient case ; see Davoue v. Fanning, 2 John- son's Chancery, 252, 261, 262; Dobson V. Bacey, 3 Sandford, 61 ; Brachenridge v. Holland, 2 Black- ford, 31T, 381 ; but the court, upon such an application, will always require such facts to be shown as justify a departure from the gen- eral rule. Where it is made to appear that the trustee has a per- sonal interest in procuring a fair price for the property, which in- terest would probably be sacrificed if he were not permitted to bid, it is very much a matter of course to give him leave to purchase ; and if it be his own sale, a master or another trustee will be substituted for the execution of the trust : but 256 PURCHASES BY TRUSTEES. even in these cases, the court must always be satisfied that the interest of the cestui que trust will not suf- fer by the permission, and if the trustee, from his connection with the property, has had better means of information as to its situation and value, so that he will not come to the sale on terms of equality with other bidders, the court will not put him in a posi- tion which will make it for his in- terest to keep that information to himself; but will require him to obtain the consent of all the ces- tuis que trust; De Caters v. Le Bay De Ghaumont, 3 Paige, ITS. [A trustee who obtains such an order does not thereby cease to be responsible for the faithful admin- istration of the trust. He is still as much a trustee as he was be- fore, and should use the utmost care and diligence in view of the imputations to which he may con- ceivably be exposed. Every effort should, therefore be made to se- cure a full and free competition, and if it appears that the interest of the cestui que trusts was post- poned to that of the trustee, al- though unintentionally, he will not be allowed to gain by their loss; Cadwalader^s Appeal^ 14 P. F. Smith, 293 ; Dundas'' Appeal^ lb. 325. " A trustee," said Agnew, J., in Gadwalader's Appeal, ^^thua permitted to bid at his own sale, ■ must act within the strictest line of his responsibilitj'. His charac- ter as a bidder cannot be permitted to derogate from his duty as trus- tee." And so where the wife of an executor obtained leave from the court to bid at a public sale made by him under a power in the will, and the property was knocked down to her for less than it was worth, the court refused to set aside the conveyance, but sur-charged the executor with the excess of the market value beyond what she gave; Dundas^ Appeal^ ante, 244. In like manner, a trustee or agent may buy at his own sale with the consent of the cestui que trust or principal, and such a per- mission is not unfrequently ac- corded where a creditor is empow- ered to sell property which has been pledged or mortgaged {ante). If one who is sui juris chooses to repose implicit confidence in the good faith of another, the law will not intervene unless the confidence is abused. Here, however, as in the cognate case of a purchase by the trustee with the leave of the court, the trustee must do all that he can to obtain a full price, and if there is reason to believe that he failed in the discharge of this duty, the sale will be declared in- valid, or he may be charged with the difference. Montague v. Dawes, 14 Allen, 369.] A purchase by a trustee is not absolutely void ; it is voidable only by the cestuis que trust, in equity, and then only upon certain terms : it is valid in equity as well as at law, unless some of them choose thus to avoid it ; Thorp et al. v. Gullum et al., 1 Gilman, 615, 621; Wilson V. Troup, 2 Cowen, 238 ; Baldwin v. Allison, 4 Minnesota, 25 ; Ives v. Ashley, 9T Mass. 198. [Hence, the proper remedy is in chancery, which can bring all the parties before it, and do justice to FOX V, MACKRBTH. — PITT V. MACKRETH. 257 all by a single decree : Davoue v. Fanning, 2 Johnson's Ch. 252; Doe V. Henry, 3 Indiana, 104; al- though a different view is taken in some of the States, and such sales held to be legally as well as equita- bly invalid: 1 Stockton, Ch. 218; Bemich v. Butterfield, 11 Foster, 70, 89.] They will not, however, be set aside, either by law or equity, on the application of the trustee, or of an agent who bids for him, for the rule was not adopted in favor of trustees, but for the protection of the cestui que trust : Richardson v. Jones, 3 Gill and Johnson, 164, 184; and a decision in Saltmarsh v. Beene, 4 Porter, 283, that an agreement be- tween a trustee and an agent that the latter shall purchase for him is so far unlawful that the trustee cannot enforce it, seems hardly to be correct. No one, but the cestuis que trust, that is, the per- sons interested in the property or in the sale of it, can apply to be relieved against the purchase by the trustee ; and a stranger cannot avoid the sale; Jackson v. Van Dalfsen, 5 Johnson, 43, 48 ; Jack- son Y.Walsh, 14 Id. 40T, 415 ; Wil- son V. Troup, 2 Cowen, 196, 238 ; Eawley v. Cramer, 4 Id. U9, T44; Bice V. Gleghorn, 21 Indiana, 80 ; Bemich v. Butterfield, 11 Foster, 70, 89. However gross the ir- regularities of a sale by an ad- ministrator, the only persons who can avoid it are the intestate's creditors and heirs, and the credi- tors of his heirs have no stand- ing in court, or right to inter- vene ; Lathrop v. Wightman, 5 Wright, 297. But any one of the VOL. I — 17 cestuis que trust may apply, though a maj ority are content with the sale ; Davoue v. Fanning, 2 Johnson's Chancery, 252, 268. The equity of the cestuis que trust is, to have the option of confirming the pur- chase and holding the trustee to it, or of setting it aside, and hav- ing the property re-sold. Jenni- son V. Hapgood, 7 Pickering, 1 ; S. C, 10 Id. 79, 111 ; see Brevost V. Gratz, 1 Peter's C. C. 365, 368 ; Hyndman v. Hyndman, 19 Ver- mont, 10, 13. They may elect to confirm it, and if they do so, de. liberately, with full knowledge, neither they themselves afterwards, nor their legal representatives, nor a stranger, can object to it ; Lessee of Lazarus v. Bryson, 3 Binney, 54, 58; Fainter v. Henderson, 7 Barr, 48, 50 ; Beeson v. Beeson, 9 Id. 279 ; Jennison v. Hapgood, 7 Pick. 1 ; 10 Id. 77 ; Bemick v. But- terfield, 11 Foster, 70, 89; Mussel- man V. Eshleman, 10 Barr, 394 ; Harrington v. Brown, 5 Pickering, 519, 521 ; Moore v. Hilton et al., 12 Leigh, 2, 28 ; Williams^ Fx'rs V. Marshall, 4 Gill & Johnson, 377, 379 ; Field v. Arrowsmith, 3 Hum- phreys, 442, 446 ; Scott et al. v. Freeland, 7 Smedes & Marshall, 410, 419, 420 ; although the infor- mation must be full and complete to give validity to the election, and the intention to affirm unequivocal ; Hoffman v. The Cumberland Goal Co., 16 Maryland, 456 ; Andrews V. Holson, 25 Alabama, 219 ; Bick- etts V. Montgomery, 15 Maryland, 46; Minford v. Menoh, 3 Stock- ton, 15 ; see Beeson v. Beeson, 9 Barr, 279, 300. If the property has been re-sold by the trusLee to 258 PURCHASES BY TRUSTEES. a bona fide purchaser without no- tice, before the cestui que trust applies to the court, the original sale cannot be set aside, and the remedy will be only persona^ against the trustee for an account of the profit, if he made any ; Les- see of Lazarus v. Bryson ; Jack- son V. Walsh ; Hawley v. Cramer ; Bobbins v. Bates, 4 Gushing, 104 ; Hoffman v. The Cumberland Coal Co. ; but if a conveyance is made by two administrators or other trustees, to one of themselves, the heirs may set aside tlie sale, even in the hands of a purchaser for value, for he has notice upon the face of the title ; Ward v. Smith, 3 Sandford, 592, 596. And even where the property has not been alienated, the cestui que trust must apply to chancery, within a rea- sonable time after he has knowl- edge of the facts which impeach the sale, or he will be presumed to have acquiesced ; and reasonable time depends upon the circum- stances of the case, and the sound discretion of the court ; Wade v. Pettibone, 11 Ohio, 5"? ; 14 Id. 55Y ; Ashurst's Appeal, 10 P. F. Smith, 290, 320 ; under some circumstan- ces, sixteen years have been held to constitute laches, and under others, twenty-seven years have been held to be too long a delay ; see Bergen and another v. Bennett, 1 Gaines's Gases, 1, 20 ; Hawley v. Cramer, 4 Gowen, 719, "743; Bob- son V. Bacey, 3 Sandford, 61 ; Ward V. Smith, 3 Id. 592, 596; Bell et al. v. Webb and Mong, 2 Gill, 164, 170 ; Johnson v. Bennett, 39 Barb. 237. Independently of circumstances, equity usually adopts as a bar to the assertion of such a trust the period which bars a title at law ; see Bobinson V. Hook, 4 Mason, 151 ; Baker v. Whiting, 3 Sumner, 486 ; Bacon V. Chiles, 10 Peters, 223; Miller V. Mitchell, 1 Bailey, 437 ; Piphe.r V. Lodge, 4 S. & R. 315 ; Keeton v. Kenton, 20 Missouri, 530. [Hence, when the subject of the alleged trust is personalty, it can- not be enforced after the lapse of six years, unless the transaction was concealed from the injxired par- ties ; AshursVs Appeal, 10 P. F. Smith, 290, 316. There may, said Strong, J., be cases where evtnsix years cannot be allowed, as when a party having a right to set aside a transaction, or treat it as a trust, stands by and sees another dealing witii the property in a manner in- consistent with any trust, and makes no objection ; Duke of Leeds V. Amherst, 2 Phillips, 123 ; Jordan V. Money, 5 H. L. G. 185. Such acquiescence gives birth to anew equity which supersedes that al- ready in existence.] There is, how- ever, no absolute or unbending rule aiid circumstances may oper- ate to shorten or extend the time ; Obert V. Obert, 2 Stockton, Gh. 98 ; 1 Beasley,423 ; Laffertyw. Tur- ley, 179, 3 Sneed. 157. In the late case of Michoud et al. v. Girod etal., 4 Howard, 504, 661, it was said that where there is actual fraud, no case can be found in the books in which a court of equity has refused to give relief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or becomes known to the party FOX V. MACKRETH. — PITT V. MACKKETH. 259 whose rights are affected by it. In the later case of Bowen v. Evans, House of Lords' Cases, 25Y, 282, the Lord Chancellor (Cottenham) stated tlie principle as follows, in regard to the setting aside of re- mote transactions on the ground of fraud : " When much time has elapsed since the transactions com- plained of, there having been par- ties who were competent to have complained, the court will not, upon doubtful or ambiguous evi- dence, assume a case of fraud : although upon fraud clearly estab- lished, no lapse of time will protect the parties to it, or those who claim through them, against the juris- diction of equitjr depriving them of the effects of their plunder. [In Beeson v. Beeson, 9 Barr, 2Y9, the receipt of the purchase money by the cestui que trusts, or their consent that it should be applied to their use, was said to be an un- equivocal act of acquiescence which precluded them from questioning the sale ; but the soundness of this inference has been denied in other instances, and it has been said that accepting the proceeds of such a sale will not preclude the right to set it aside, because the trustee ought not to present such an alter- native, or compel the complainants to choose between foregoing the power to challenge his conduct, and lying out of monej' tiiat would have been theirs at once, if he had pursued the regular course of business ; JRosenberger's Appeal, 2 Casey, 67 ; Campbell v. WLain, 1 P. F. Smith, 200. To render an election to affirm the sale binding, it must be made with a full knowledge not only of the facts, but of the law, or in other words, of the way in which the facts would be dealt with by a court of equity, ante ; The Hoff- man Iron Go. v. The Cumberland Coal and Iron Co., 16 Maryland, 456, 509. In Fellowsbee v. Killreth, It Illinois, 522, the complainant was held to be precluded from impugn- ing the conduct of his agent in purchasing the land for himself, which he had been employed to buy, by acquiescence for three years, during which the agent obtained a conveyance and paid the price. In this instance, however, the princi- pal had been called upon by letter to say whether he would take the land, and his failure to reply operated as a ratification.] When a cestui que trust objects to a purchase by a trustee, the trustee is not to be called upon to make up the difference between what he paid, and what was the true or probable value at the time ; the ordinary relief consists in or- dering a re-sale upon such terms as fully secure to the trustee all that he has expended ; Mason v. Mar- tin, i Maryland, 124. The court in ordering a re-sale will direct an account to be taken, in which the purchaser will be credited with the purchase-money which he has paid, and interest, and with the cost of all valuable improvements made upon the land since the purchase, and will be charged with the profits of the land, or a fair annual rent instead ; the balance of this ac- count with the commissions and charges of re-sale is to be the price 260 PtTRCHASBS BY T E tJ S T E E S , at which the land is to be set up at the resale ; if no more is bid than the upset price the former purchase stands confirmed ; but if more is bid, the former purchase is vacated, and a new conveyance ordered to be made to the purchaser at the resale, and the proceeds are ap- plied first to pay the expenses of the sale, and then to pay the trus- tee the balance expended b}' him for the purchase-money and im- provements, and the surplus is de- creed to the cestuis que trust ; Im- boden v. Hunter, 23 Arkansas, 622 ; Buckles V. Lafferty's Legatees, 2 Robertson's Virginia, 294, 391 ; Bailey''s Adm'x v. Robinson, 1 Grattan, 4, 9 ; Davoue v. Fanning, 2 Johnson's Chancery, 252, 211; Hawley v. Cramer, 4 Cowen, '719, 144 ; Ex parte Wiggins, 1 Hill's Chancery, 353, 355 ; Crispin v. Taylor, 2 Id. 434, 436, note ; Scott et al. V. Freeland, 1 Smedes and Marshall, 410 ; Spuseler v. Atkin- son, 3 Maryland, 409 ; Mason v. Martin, 4 Id. 124 ; The Aberdeen Railway Co. v. lfac5Meen,461,480; Minford v. Minch, 3 Stockton, 15 ; but the court may in its discretion set aside the sale entirely, if neces- sary, and order the purchase-money to be refunded ; Scott et al. v. Free- land ; Campbell v. Johnson and others, 1 Sandford, 148, 152 ; Mul- ford V. Minch. Where there has been actual, conscious fraud, a trustee would probably . not be allowed for the value or cost of improvements; McCaskeyv. Griff, 11 Harris, 821 ; Sands y. Codwise, 4 Johnson 536. If the trustee has sold the property before the bill is filed, he will be compelled to ac- count for the profits, and if by his own conduct it has become impos- sible to ascertain with exactness what profit was made, he will be charged with the largest amount that the case will reasonably admit of; Brackenridge v. Hol- land, 2 Blackford, 311, 383 ; Ring- gold V. Ringgold, 1 Harris & Gill, 10 ; Ricketts v. Montgomery, 15 Maryland, 46, 53. A trustee is not under an abso- lute disability to purchase the trust property from his cestui que trust : Spindler v. Atkinson, 3 Maryland, 409 ; Buell v. Bucking- ham, 16 Iowa, 284 ; Belamater's Estate, 1 Wharton, 362, 315 ; but all such transactions are scanned in a court of equity with the most searching and questioning suspi- cion ; and will not be sustained unless they fully appear to have been in all respects, fair and can- did and reasonable. The trustee must show that he took no advan- tage whatever of his situation ; that he gave to his cestui que trust all the information which he possessed or could obtain, upon the subject ; that he advised him, as he would have done in relation to a third person offering to become a pur- chaser ; and that the price was fair and adequate : and the onus of proving all this is upon the trus- tee ; Coffee v. Ruffin, 4 Caldwell, 481 ; Michoudy. Girod, 4 Howard, 503 ; Brook v. Berry, 2 Gill, 99 ; Eeigler v. The Savage Man. Co. 12 Maryland, 383, 411 ; Puzey v. Siner, 9 Wisconsin, 310. And these principles apply to all cases where confidence is reposed ; to agents, attorneys, solicitors guar- FOX V. MACKRETH, ■PITT V. MACKRETH, 261 dians, cashiers of banks, directors of corporations, promoters of in- dustrial enterprise, &c. ; The Hoff- man Steam, Goal Co, v. The Cum- berland Coal and Iron Co. 16 Maryland, 456, ante ; Eherts v. Eherts, 5 P. F. Smith, 510. See Butler et al. v. Haskell, 4 Desaus- sure, 652, "705 ; W Cants and wife V. Bee and others, 1 M'Cord's Chancery, 383, 889 ; Farr v. Farr, Fx'or, 1 Hill's Chancery, 381, 390 ; Hawley v. Cramer, 4 Cowen, Y19, t40 ; Colton v. Gardner, 3 Paige, 274, 2Y9 ; Poillon v. Martin, 1 Sandford, 569, 512; Stuart v. Eis- sam, 2 Barbour, 494, 505 ; Boyd V. Hawkins, 2 Devereux's Equity) 195, 208, 329, 330; Adm'r of Spence v. Whitaker et al., 8 Por- ter, 297, 325 ; Kennedy's Heirs and Executors v. Kennedy's Heirs, 2 Alabama, 574, 606 ; Johnson v. Johnson, 5 Id. 91, 95 ; Farnham V. Brooks, 9 Pickering, 214, 231 ; Brook et al. v. Berry, 2 Gill, 84 ; Greenfield's Estate, 2 Harris, 489, 506 ; [to every one, in short, who has entered into a fiduciary rela- tion, or assumed an obligation by contract or otherwise towards an- other which it would be a breach of trust and confidence to violate ; and hence, where A. agreed for a valuable consideration to furnish B. with the information necessary for the entering of public land in his own name, and afterwards took up the same land himself in fraud of the agreement, equity decreed a trust in favor of B. : Winn v. Dillon, 27 Mississippi, 494. A purchase by a factor of goods which have been sent to him for sale on commission, falls within the same principle, and will be set aside unless there has been entire good faith and a full disclosure of all material facts and circumstan- ces : Keighler v. The Savage Man. Co., 12 Maryland, 413, aitte, 250. It has been said, and there is a great weight of authoritj^ for the position, that a purchase by an agent cannot, of itself, and without special cirqumstances, give rise to a trust in favor of the principal, consistently with the provisions of the Statute of Frauds, unless the agency is proved by written evi- dence, or admitted by the agent ; Bartlett v. Pickersgill, 1 Eden, 515 ; 4 East, 577, note b. ; Peebles V. Beading, 8 S. & R. 484, 492 ; Kisler v. Kisler, 2 Watts, 322 ; Barnet v. Dougherty, 8 Casey, 371 ; Walker v. Bringard, 13 Smedes & Marshall, 723, 765; Schmidt V. Gatewood, 2 Richard- son's Eq. 162 ; Wallace v. Brown, 2 Stockton's Ch. 308; 2 Story's Eq. 1201 ; and the same rule has been held to apply where a person, who has agreed verbally to buy for the joint account of himself and another, effects the purchase, and takes a deed solely for his own benefit ; Atkins v. Rowe, Mosely, 133 ; Flagg v. Mann, 2 Sumner, 488, 546; Smith v. Burnham, 3 Id. 435, 463. There can, however, be no doubt, that the law will raise a trust wherever one who is con- fessedly an agent, buys in fraud of the agency, or of the duty which it imposes, ante, 250 ; Henry v. Bai- man, 1 Casey, 354 ; Church v. Sterling, 16 Conn. 388, 401 ; and the better opinion would seem to be, that a fact which would give 2ti2 PURCHASES BY TRUSTEES. rise to an implied or resulting trust, if it were admitted, may be proved orally, notwithstanding tlie Statute of frauds ; Jenkins v. El- dridge, 3 Story, 181, 290. Implied trusts are excepted by the express words of the statute, and the exception would mani- festly be inoperative, if it were necessary to give written evidence of the facts from which the trust is deduced. Hence, whenever the circumstances under which a pur- chase is made by an agent, are such that an implied trust would arise if they were established by a writing signed by the party to be charged, the means of proof will be immaterial, and the testi- mony of witnesses equally good with the most formal instrument. There are, accordingly, a num- ber of instances in which a trust has been decreed in favor of a principal, without adverting to whetlier the agency appeared from oral or written evidence ; Taylor V. Salmon, 4 Mylne and Craig, 134 ; Church v. Sterling, 16 Conn. 388 ; Morey v. Her rick, 6 Harris, 125 ; Rankin v. Po7'ter, "I Watts, 38'7 ; Farkiat v. Alexander, 1 Johnson's Ch. 894; Rogers v. Ross, 4 Id. 118 ; Sweet v. Jacocks, 6 Paige, 364 ; The Bank of Or- leans V. Torrey, 9 Id. 653 ; 7 Hill, 360 ; Safford v. Hynds, 1 Barb. 625 ; Piatt v. Oliver, 3 Howard, 353 ; C'opeland v. The Mercantile Ins. Co., 6 Pick. 198 ; Moore v. Moore, 4 Sandford's Ch. 1 ; 1 Sel- den, 256 ; Pennsonneau v. Bleak- ley, 14 Illinois, 15 ; and such is clearly the rule where the conduct of the agent is marked by actual fraud : Brown v. Lynch, 1 Paige, 341 ; Sweet v. Jacocks, 6 Id. 364 ; Lee.s V. Nuttall, 1 Tamljm, 282 ; 1 Russell ; 1 Mylne, 53 ; Cloninger V. Summit, 2 Jones' Eq. 513 ; Hargrave v. Ring, 5 Iredell Eq. 430 ; Mosely v. Lane, 2T Alabama, 62 ; Edmonson v. Welsh, Id. 578 ; Reid V. Stanley, 6 W. & S. 369 ; Myers'' Appeal, 2 Barr, 463 ; Baker v. Whiting, 3 Sumner, 475, 483 ; Brown v. Dysinger, 1 Rawle, 408 ; Willink v. Vanderueer, 1 Barbour, 599 ; Shields v. Tram- mell, 19 Arkansas, 51 ; M'Caskey V. Graff, 11 Harris; Soggins v. Heard, 31 Mississippi, 426, 427 ; Stowey V. M^ Murray, 27 Missouri, 113, 118. An agent or sub-agent who uses the information which he has obtained in the course of the agency as a means of buying for himself, will be compelled to convey to the principal ; M'Bowell V. Fithian, 1 Gilman, 269, ante; Poillon v. Martin, 1 Sandford Ch. 569 ; Gardner v. Ogden, 22 New York, 327, ante. So a man who agrees to buy or redeem land sold for taxes, or under a writ of execution on be- half of the owner, and takes the deed in his own name, is not the less a trustee ex maleficio for his principal, because his authority was merely oral, and there is no written proof of the confidence which he abused ; Soggins v. Heard, Howell v. Baker, 4 John- son, Ch. 118, 121. And a trust will also be decreed where an agent, by professsing to bid for his prin- cipal, obtains the property for less than he would have had to give had he been known to be buying FOX V. MACKRBTH. — PITT V. MAOKRETH. 263 for himself; Trapnall v. Brown, 19 Arkansas, 39 ; Kislery. Kisler, 2 Watts, 323 ; W Donald v. May ; M^Gaskey v. Graff ; Peebles v. Beading ; Brown v. Dysinger ; Brown v. Lynch ; Slowey v. M'Murray. Some of the cases might convey the idea that this rule should be restricted to pur- chases at public sales, where a trust will, it has been said, arise from motives of public policy, and to prevent the repetition of a course injurious to the commu- nity ; Kennard v. Harris, 3 Rich- ardson's Eq. 423 ; Coa> v. Cox, 5 Id. 865 ; McDonald v. May, 1 Id- 91 ; Lloyd v. Gurrin, 3 Hum- phreys, 462. The better opinion, however, would seem to be, that the nature of the sale makes no difference, and that a trust will be implied wherever there has been a violation of confidence on one side, and an injury resulting from it on the other; Wiiin v. Dillon, 21 Mississippi, 494. Whatever doubt may exist un- der other circumstances, it is clear that where one who is employed to negotiate for another takes advan- tage of the opportunity to obtain a conveyance to himself, there is a wrong against which relief may be had in equity: Lees v. Nattall, 1 Tamlyn, 282 ; 1 Russell & Mylne, 53 ; Taylor v. Salmon, 4 Mylne & Craig, 134 ; Jenkins v. Eldridge, Story, 181, 293; Gloninger v. Summit, 2 Jones' Eq. 513 ; Har- graiie v. King, 5 Iredell, Eq. 430. " When one," said the Court in Hargrave v. King, " by parol agrees to procure a lease for him- self and others, and procures that lease in his own name, he is a trus- tee for those for whom he agreed to act, and the statute has no ap- plication." The trust springs from the fraud, and the breach of an un- written promise will not give rise to a trust ; Schmidt v. Oatewood, 2 Richardson's Eq. 162 ; Jackman v. Ringland, 4 W. & S. 149 ; Sharp V. Long, 4 Casey, 434. The fraud must nevertheless be contemporane- ous with the purchase : Barnet v. Dougherty, 8 Casey, 3*71 ; and consist in the fraudulent substi- tution of the name of the agent for that of the principal ; for where the agent is expressly or impliedly authorized to take the deed in his own name, on the faith of an as- surance that he will hold the premi- ses for the principal, and convey to him when reimbursed, the latter must submit to the consequences of his ill-placed confidence, and no trust can be raised without disre- garding the plain import of the Statute of Frauds; Pennock v. Glough, 16 Vermont, 507 ; Lath- rop V. Hoyt, 1 Barbour, 69 ; Blair V. Bass, 4 Blackford, 539 ; Wallace V. Brown, 2 Stockton's Ch. 308 ; Slowey V. M'Murray, 27 Missouri, 113. The distinction is plain be- tween getting a title in fraud of the agency, and keeping it con- trary to an agreement that it shall be conveyed ; and will, perhaps, serve to reconcile most if not all of the decisions in which written evidence of the agency has been treated as essential to the trust. Trusts arising under the circum- stances specified in this note, and in that to Keech v. Sandford, ante, and in general all trusts 264 REAL ESTATE OF PAETNERSHIP. which are fastened by equity on ranged under the head of result- the conscience of the holder of the ing or presumptive trusts ; Hill on legal title, to compel the surrender Trustees, 91, Hi, post, notes to of that which he acquired or seeks Dyer v. Dyer. Both, are, how- to retain in his own wrong, have ever, due to a legal or rather been described as constructive equitable implication, and both trusts, or trusts by construction fall, alike, under the proviso which of equity, while those which arise excepts trusts arising or resulting from the presumed meaning or in- " by implication or construction tention of the parties, as where the of law," from the operation of the consideration for the purchase is statute : the word law being used paid by one man, and the deed in the general sense in which it taken in the name of another, are includes equity.] [*177] *LAKE V. GIBSOF. TRIN. TERM, 1729. EEPOKTED 1 EQ. CAS. AB. 294, PL. 3. Joint Purchasers.] — Where several persons make a jnnt 'purchase for the purposes of a joint undertaking or partnership, either in trade or any other dealing, although they are joint-tenants at law, in equity they icill be considered as tenants in common, and the sur- vivors as trustees for those luho are dead. The Commissioners of Sewers had sold and conveyed lands to five persons and their heirs, who afterwards, in order to improve and cultivate those lands, entered into articles whereby they agreed to be equally concerned as to profit and loss, and to advance each of them such a sum to be laid out in the manurance and improvement of the land. Sir Joseph Jektll, M. E.., held that they were tenants in common, and not joint tenants, as to the beneficial interest or right in those lands, and that the survivor should not go away with the whole ; for then it might happen that some might have paid or laid out their share of the money, and others, who had laid out nothing, go away with the whole estate. And his Honor held, that when two or more purchase lands, and advance the money in equal proportions, and take a convey- ance to them and their heirs, that this is a joint-tenancy ; that is, a purchase by them jointly of the chance of survivorship, which may happen to the one of them as well as to the other : but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners ; and LAKE V. GIBSON. — LAKE V. CRADDOCK. 265 *however the legal estate may survive, yet the survivor pj^ijg-i shall be considered but as a trustee for the others, in l- -• proportion to the sums advanced by each of them. So, if two or more make a joint purchase and afterwards one of them lays out a considerable sum of money in repairs or im- provements, and dies, this shall be a lien on the land, and a trust for the representative of him who advanced it ; and that in all other cases of a joint undertaking or partnership, either in trade or any other dealing, they were to be considered as tenants in common, or the survivors as trustees for those who were dead. *LAKE V. CRADDOCK.' [*179] {On an Appeal from the Decree at the Rolls in Lake v. Gibson.) DE TERM. S. MICHAELIS, 1732. EEPOKTED 3 P. WMS. 158. Joint Purchasers.] — Five persons purchased West Thorock Level from the Commissioners of Sewers, and the purchase vms to them as joint tenants in fee ; but they contributed ratably to the purchase, lohich was with an intent to drain the Level ; after which several of them died. They were held to be tenants in common in equity ; and though one of these five undertakers deserted the partnership for thirty years, yet he was let in afterwards, on terms. The case was thus : Great part of the lands in West Thorock, in Essex, having been overflowed by the river Thames, near Dagenham, and the landowners not thinking it worth their while to pay the assessments made on them by the Commissioners of Sewers, the commissioners decreed the lands to be forfeited, and conveyed them to three trustees in trust to sell, and raise money for the draining of these overflowed lands. The defendant Craddoek's father, the plaintifl^ Lake, and three others, five in all, having entered into an undei'taking to drain the level or overflowed lands of West Thorock, the trustees for the sale, by the consent and direction of the Commissioners of Sewers, did, by deed, indented and enrolled, dated the 8th of February, 1695, in consideration of 5,145^. paid to the Commis- sioners bj' the five purchasers, convey this level to the defendant Craddoek's father, the plaintiff Lake, the three others, and their heirs ; upon which several sums of money were *expended r*-ioA-i in carrying on the undertaking ; and in 1699, the defend- '- -' ant Craddoek's father paid his last contribution, which, with what he had advanced before, came in all to 1025Z. Afterwards, it seeming to be an enterprise which would prove very expensive, and there being some uncertainty as to the sue- 266 REAL ESTATE OF PARTNERSHIP. cess of it, the defendant Craddock's father wholly deserted it, and never more concerned himself therewith. The four other undertakers were advised that some neiujhbour- ing lands would be of service to their design ; upon which, in April, 1703, they purchased the manor of Porretshalls, in West Thorock, of the Lady Smith, for 2350^., and in FebruaVy follow- ing purchased the moiety ,of the rectory and tithes of West Thorock, for 1400^. of Sir Charles Tyrrell ; which two purchases were thought useful in the undertaking, and were made in the uames of the four undertakers, omitting Craddock ; nor did it appear that he was ever consulted therein, or desired to cO!i- tribute to the purchase. Craddock, the father, died, leaving the defendant Craddock, the son, his heir and executor. The plaintiff. Sir Bibye Lake, one of the original partners^ brought this bill against the rest of the partners, or their repre- sentatives, for an account and division of the partnership estate. And on the first coming on of the cause, at the Rolls, his Honor referred it to the Master to state a case between the parties, for the judgment of the Court. And the Master having made his report, the cause was thereupon heard, when the princi]ial or rather the only question was, whether these five purchasers having made this purchase jointly, so as to become in law joint tenants, the same should survive in equity? Sir Joseph Jekyll, M. R., on debate, decreed that the survivor- ship should not take place; for that the payment of money created a trust for the parties advancing the same ; and an under- taking upon the hazard of profit or loss was in the nature of merchandising,! when the jus aucrcscendi is never allowed ; that, supposing one of the partners had laid out tlie whole of- the r*18n n^oney, and had *happened to die first, according to the ■- -' contrary construction, he must have lost all, which would have been most unjust.^ Wherefore, it was decreed that these five purchasers were tenants in common, not only as to the level lands which were first purchased, but also with respect to the lands bought afterwards by the four undertakers of the Lady Smith and Sir Charles Tyrrell ; but that the defendant Craddock ought not to have the benefit of this tenancy in common, unless he would pay so much money as would make up what had been already advanced by his father equal to what had been con- tributed h)y each of the other partners, together with interest for the same from the respective times that Craddock, the father, ought to iiave made those payments; and on the defendant Craddock's paying the same, then all the said lands to be divided into five parts, the defendant Craddock to have one fifth ; but on default of payment, the defendant Craddock to be excluded, aud the lands to be divided aud distributed into four parts among the four other partners. ' 1 Inst. 182 ; 1 Vern, 217 ; 2 Lev. 188, 228. 2 See 9 Ves. 549 ; Dale v. Hamilton, 5 Hare, 385. LAKE V. GIBSON. — LAKE V. CKADDOCK. 267 From this decree the defendant Craddock appealed to the Lord Chancellor King, insisting that he ought either to receive hack the 1025^., which it was admitted his father expended in this undertaking, or to he allowed to come in for a share of the level only, and not to he hound to contrihute towards the two pur- chases made hy the four other undertakers of the Lady Smith and Sir Charles Tyrrell : that the four other undertakers had chosen to make these two purchases in their own names only, by which they seemed to have excluded Craddock from all concern therein, and of which, had it proved never so beneficial, he would have had no means of forcing them to admit him to a share ; and therefore, now that it had turned out a losing bargain, there could be no reason to compel him to bear a portion of the loss. Besides, there was nothing in the articles empowering the part- ners, or the major part of them, to buy lands ; and, by the same reason that they would oblige Craddock to pay his share towards these purchases, they might, if they had fancied *buying r*iQ9-| half the country, have compelled him to contribute to ■- -' that also. That it was difficult to conceive how the uplands thus purchased much less the tithes, could be of any use in the under- taking; though, as to the charge of draining the level, exclusive of the two purchiises, the defendant Craddock was willing to advance his proportion. It was, moreover, pretended that the decree was unreasonable, on account of its having directed that the defendant Craddock, in order to be admitted to one-fifth, should pay not only his propor- tion of these two purchases, but also of the interest of the pur- chase-money, from the time that his father ought to have made these payments ; whereas the direction ought to have been, that an account should be taken of the profits of these two purchases, which profits might have amounted to as much as the interest, or, if not quite so much, yet that the defendant Craddock ought to pay no more towards such interest than the deficiency of the quantum of the profits would come to. To which it was answered by Mr. Solicitor Talbot that, as the defendant Craddock's father and himself had for so long a time (near thirty years) relinquished and abandoned the partnership, and in regard the defendant Craddock had no manner of right thereto but through the indulgence of a court of equity (it being, by law, a joint-tenancy, and as such, belonging to the survivors), it was a favourable decree to let him in upon any terms; and surely the terms now offered him must appear reasonable, viz., that he should, upon his contributing to all the expenses that had been contracted and incurred by reason of any purchases or other- wise, in the prosecution of the undertaking, he admitted to one- fifth of the partnership; that had the defendant Craddock brought his bill for the benefit of such undertaking, he could not have hoped to succeed on any other conditions : that it was still stronger against him, in that he now seemed to decline meddling with the undertaking, so that here was rather great favour shown 268 REAL ESTATE OF PARTNERSHIP. him than anv hardship imposed : that he was not ahsolutely and P^-|Qo-, at all events bound by this *decree to pay his proportion L ^ towards the new purchases, but had it in his election whether he would do it or no : that, as to the interest which was required of him previous to his beina; admitted into the partner- ship, it was reasonable he should pay it for his default in not having contributed his share of the principal before, which if he had done, he would not have been char2;ed with the interest ; and this was some disadvantage to the other four partners, who had been deprived of their arrear of interest for near thirty five years : that, in truth, the design of the defendant Craddock appeared to be to delay matters, and to defer the bringing in of his money and interest till such time as this long account of the profits should be taken, which would require many years ; and that if the defendant's share of the profits of these two purchases should exceed his proportion of the interest, the surplus, on the making up of the accounts, must be paid him. For these reasons, the decree of the Master of the Rolls was affirmed. LoEi) Chancellor King' said, that this was plainly a tenancy in common in equity, though otherwise at law; and the defendant Craddock having only a title in equity, that he must do equity, and that this was equitable in all its branches; for he had his election to drop all claim, or to take it on the same foot with the rest of the partners ; and that it was not reasonable that he should be let into the account of the profits or loss of the undertaking until he had made his election. It is an invariable rule at law, that, when purchasers take a convey- ance to themselves and their heirs, they will be joint tenants : and, upon the death of one of them, the estate will go to the survivor. See Litt. s. 280. The same rule prevails in equity, except where circumstances exist from which the rule of law is controlled by the presume^ intention of the parties. Thus, as is laid down by Sir Joseph Jekyll in Lake v. Gibson, where two or more purchase *lands and advance the '- -^ purchase-money in equal proportions, and take a conveyance to them and their heirs, they will be held joint tenants in equity as well as at law, upon this principle, that it may be presumed they intended to purchase jointly the chance of survivorship. The rule of law, therefore, not being repugnant to the presumed intention of the parties, will be followed in equity. See Taylor v. Fleming, cited in York v. Eaton, Freem. 23 ; Rigden v. Vallier, 3 Atk. 135 ; 8. C, 2 Ves. 258 ; Bea v. 1 This judgment is from Sugd. V. & P. 903, 11th edit., and is there stated to have been taken from unprinted MS. LAKE V. GIBSON. — LAKE V. CKADDOCK. 269 Williams, Sugd. V. & P., App. No. xxi., 11th ed. See Bex v. Wil- liams, Bunb. 842; Harris v. Fergusson, 16 Sim. 308. Upon the same principle, where persons have entered into a joint contract for the purchase of an estate to them and their heirs, and have paid or contracted to pay the purchase-money in equal proportions, a court of equity will not, upon the death of one of them, decree a con- veyance to the survivor and the heirs of the deceased purchaser as ten- ants in common ; for if both parties to the contract contribute equally towards the purchase-money, the surviving purchaser will be solely en- titled to the benefit of the contract, and to have a conveyance of the estate decreed to himself alone. See Aveling v. Knipe, 19 Ves. 441, where Sir W. Grant, M. R., observed that a doubt had been suggested whether a court of equity would in any case execute such an agreement by a conveyance in joint-tenancy. "It would not," observed his Honor, " if there were any circumstances from which it could be collected that a joint-tenancy was not in contemplation; but I have no conception that it is of course upon a controversy between two purchasers to de- part from the letter of the agreement, and decree them to be tenants in common. And see Davis v. Symonds, 1 Cox, 402. In equity, however, there is a strong leaning against joint-tenancy; and whenever circumstances occur from which it can reasonably be im- ■ plied that a tenancy in common was intended, a court of equity wiU hold the survivors of joint purchasers trustees of the legal sstate for the representatives of the deceased purchaser. In Lake v. Gibson, Sir Joseph Jekyll lays it down as a general rule, that, where two or more purchase lands and advance the purchase- money in unequal proportions, and this appears on the deed itself, this makes them in the nature of partners, and, however the legal estate may sur- vive, yet the survivor will be considered in equity but as a trustee for the other, in proportion to the sums advanced by each of them. See also Rigden v. Yallier, 3 Atk. 135 ; S. C, 2 Ves. 258. The soundness of the distinction between equal and unequal advances is doubted by Mr. *Vesey, in a note to Jackson v. Jackson, 9 Ves. 597. "If," he observes, " the advance of consideration, generally, will not ^ -^ prevent the legal right, the mere inequality of proportion, which may be naturally attributed to the relative value of the lives, ought not have that effect." Sir Edward Sugden, however, thought the distinction founded on rational grounds. " Where the parties," he observes, " ad- vance the money equally, it may fairly be presumed that they purchased with the view to the benefit of survivorship : but where the money is advanced in unequal proportions, and no express intention appears to benefit the one advancing the smaller proportion, it is fair to presume that no such intention existed ; the inequality of proportion can scarcely be attributed to the relative value of the lives, because neither of the parties can be supposed not to know that the other may, immediately 270 REAL ESTATE OF PARTNERSHIP. after the purchase, compel a legal partition of the estate, or may even sever the joint-tenancy by a clandestine act:" Sugd. V. & P. 902, 11th ed. ; see 14th edit. 698. Sed vide Harris v. Fergusson, 16 Sim. 308. Explained, however, in Bobinson v. Preston, 4 K. & J. 515. It will be observed, that Sir Joseph Jekyll qualifies the general rule laid down in the principal case of Lake v. Gibson by the words " and this appears upon the deed itself." Lord Hardwicke, however, lays down the same rule without this qualification, Rigden v. Vallier, 3 Atk. 735 ; 2 Ves. 258. Again, where money is advanced by persons, either in equal or un- equal shares, who take a mortgage to themselves jointly, although the debt and security will at law belong to the survivor, in equity there will be a tenancy in common, the survivor being a trustee for the personal representatives of the deceased mortgagees; (Petty y. Sty ward, l,Ch. Rep. 31 Eq, Ca. Ab. 290 ; Rigden v. Vallier, 2 Ves. 258). For " equity says it could not be the intention that the interest should survive. Though they take a joint security, each means to lend his own and to take back his own:" Per Lord Alvanley, M. R., in Morley v. Bird, 3 Ves. 631 ; and see Robinson v. Preston, 4 K. & J. 505, 511. The personal representatives of the deceased mortgagees are therefore necessary parties to a bill of foreclosure or redemption ( Vickers v. Cowell, 1 Beav. 529) ; and although the entire legal estate is in the survivor, they are necessary parties to a reconveyance, in order that they may give a valid discharge for their share of the mortgage-money: Carth. 16. Hence it is usual, where trustees advance money on mort- gage, to insert a declaration, that, if one of the mortgagees die before the money is paid off, the receipt of the survivor shall be a suiHcient r*isfin *discharge ; and tliat the concurrence of the personal represen- tative of the deceased mortgagee shall not be requisite. See Matson v. Denis, 12 W. R. (V. C. S.), 596. If joint mortgagees purchase or' foreclose the equity of redemption, they will be held, in equity, tenants in common, " because their intent is presumed to be so :" Rigden v. Vallier, 2 Ves. 258. Thus in Edwards V. Fashion, Prec. Ch. 332, where the two daughters of a mortgagee for a term of years, taking under his will the residue of his personal estate, including the mortgage, equally to be divided between them, afterwards purchased the equity of redemption to them and their heirs, it was held, that there was no survivorship, upon the ground that the purchase was founded on the mortgage, and the daughters being tenants in common of the mortgage, they were held to be tenants in common of the equitj^ of redemption likewise. See Aveling v. Knipe, 19 Ves. 444; and the comments therein of Sir Wm. Grant, M. R., on Edwards v. Fashion. The circumstances, however, attending a purchase in the names of two persons advancing the purchase-moneys in equal proportions, may show an intention that the parties should hold as tenants in common. LAKE V. GIBSON. — LAKE V. CRADDOCK. 271 Thus, in Robinson v. Preston^ 4 K. & J. 505, two ladies, about the same age, who lived together in a common establishment, were tenants in common of land, the rents of which were from time to time paid to their joint account at a bank, upon which they both drew drafts as they had occasion, and the bankers were in the habit of investing portions of the balances in their joint names ; and, upon one occasion, part of tlie money drawn from their joint account in the bank was invested upon a mortgage to them as tenants in common, in which there was a declara- tion (perfectly unnecessary) that the two ladies should hold as tenants in common. The surviving sister (who afterwards became a lunatic), by her will bequeathed to her sister her share of the stock standing in the joint names of herself and her sister. It was held by Sir W. Page Wood, V. C, on the death of the other sister, that the two sisters held the stock purchased in their joint names, and the balance to their joint account at their bankers', as tenants in common. " I am'not," said his Honor, " aware of any decision as to the efl'ect of a payment of moneys in which two or more persons are interested as tenants in common, to their joint account at a banker's, whether such a payment would fall within the doctrine as to mortgages, or within that as to purchases ; and perhaps I might be allowed to entertain some degree of doubt if the case rested simply tliere ; but the bankers, from time to time, invested portions of these moneys, *and I must assume that p^iQ^-, they did so by the direction of both ladies in the purchase of stock in their joint names; which, no doubt, as it was argued, they might have invested in equal moieties, one in the name of each ladj'." And after referring to Edioards v. Fanhion, Prec. Ch. 332 (ante, p. 186), where mortgagees purchasing the mortgaged estate were held to be tenants in common, his Honor, quoting Sir Wm. Grant, proceeds to observe : " That case proceeds on tlie ground that the purchase was founded on the mortgage ; and the mortgagees being tenants in common of the mortgage were held to be tenants in common of the equity of redemption likewise. That is a case that has some bearing upon the present, when one looks to wliat was the root of the property now in question, viz., rents of land held by the two ladies as tenants in common. " But besides the first point, as to the root of the propertj', there is a second, viz., that where it was necessary for a deed to be executed, as in the case of the mortgage, there was actually a declaration that they would hold the money so invested as tenants in common. With regard to the investments in the purchase of stock, in those transactions there was, of course, no necessity for a deed to be executed, or any memo- randum signed. " Then I find the third point, — perhaps the strongest of all, viz., that the sister who proved to be the survivor, and against whom, of course, her own declaration may be read, by her will, executed in the lifetime of her sister, not only speaks of ' her share ' of the property in 212 REAL ESTATE OF PARTNERSHIP. question, but affects to dispose of it in favour of her sister ; and further, in the assumption that her sister will survive her, she directs that, after her sister's decease, a legacy of 350Z. stock should be paid out of a part of the stock in question, that part standing exactly in the same position as the rest. " These three circumstances concurring, and the whole being a ques- tion of intention, to be ascertained from the ciroun. stances of the case, it is not illogical to say, that the three combined have a force and carry a conviction, which perhaps any one of them taken alone would not produce." But see and consider Bone v. Pollard, 24: Beav. 283. And it seems that parol evidence of subsequent dealings, as well as of surrounding circumstances, is admissible on a purchase by two per- sons contributing equally to the cost of it, to prove an intention to hold in severalty {Harrison v. Barton, 1 J. & H. 28*7) ; but it seems that parol evidence of statements of intention is not admissible lb. But see Devoy v. Devoy, 3 Sm. & G. r*l ssn Another rule laid down by the Master of the Rolls in Lake v. * Gibson is, that, in all cases of a joint undertaking or partner- ship, either in trade or in any other dealing, two or more persons who make a joint purchase will be considered in equity as tenants in com- mon, or the survivors as trustees for the representatives of those who are dead. This was the ground of the decision in Lake v. Gibson, or Lake v. Craddock, which shows that a joint speculation in improving land, on a hazard of profit and loss, is treated, in a court of equity, as in the nature of merchandise, and the jus accrescendi is not allowed. See In re Thomas Ryan, 3 I. R. Eq. 222, 232. In favour of merchandise it is well known that an exception to the rule of survivorship has been long established. It is thus stated in Co. Litt. 182, a: — "An exception is to be made of two joint merchants: for the wares, merchandises, debts, or duties that they have as joint merchants or partners shall not survive, but shall go to the executors of him that deceaseth ; and this is per legem mercatoriam, which (as hath been said) is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico ; for the rule is, that jus accrescendi inter niercatores pro beneficio com- mercii locum non habet." And see Nelson v. Bealby, 30 Beav. 4*72. The exception in favour of merchants was afterwards extended to all traders ; and courts of equity have extended it to the analogous eases of real property purchased for a joint undertaking or partnership in trade, or in any other dealing. It has been remarked by Sir James Wigram, V. C, that the consequences of the admission of the partner- ship contract were carried to a great length in Lake v. Craddock ; " for one of the five original contractors," observed his Honor, " who had retired for nearly thirty years, was held bound by a subsequent con- tract, made by the other four, for the purchase of other lands in aid of LAKE V. GIBSON. — LAKE V. CRADDOCK. 273 the original design ;" 5 Hare, 384. In Jeffereys v. Small, 1 Vem. 217, where two persons having jointly stocked a farm, and occupied it as joint tenants, the bill was to be relieved against survivorship, one of them being* dead. Lord Keeper North was clearly of opinion that the plaintiff ought to be relieved, and said that, if the farm had been taken jointly by them, and proved a good bargain, then the survivor should have the benefit of it ; but as to a stock employed in the way of trade, that should in no case survive. That the custom of merchants was extended to all traders, to exclude survivorship ; and though it was common for traders in articles of co-partnership to provide against survivorship, yet that was more than was necessary ; and he said, *he took the distinction to be, where two became joint tenants, j-^- _.-. or jointly interested in a thing by way of gift or the like, there the same shall be subject to all the consequences of law ; but as to a joint undertaking in the way of trade or the like, it is otherwise ; and decreed for the plaintiff accordingly. Lord Eldon, in commenting upon this case, observed : — " Jeffereys v. Small has been approved, with some distinctions, in subsequent cases. It was held, in that case, that, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive. I have a note of my own of a case of Elliot v. Brown, upon the 25th of July, 1'791, in which another distinction was made by Lord Thurlow, that the law, with reference to the stock, would be the same as to lease, provided the lease was taken only upon the same purpose as the stock, and the lease was only the substratum ; and Lake v. Gibson was referred to. The observation upon that was, that the purchase of the land was made to the intent that they might become partners in the improvement ; that it was only the substratum for an adventure, in the profits of which it was previously intended they should be concerned : Jackson v. Jackson, 9 Ves. 596. In Elliot v. Brown (since reported, 3 Swanst. 489), there was a lease of a farm to two partners ; one partner dying, the other agreed to a division of stock with the representatives of the deceased partner, but insisted on holding the lease by survivorship ; Lord Thur- low, however, thought the lease was accessory to the trade in which the parties were embarked, and granted an injunction to restrain the survi- ving partner from proceeding by ejectment to obtain possession of the farm. From Lord Colchester's MSS. See also 1 Vern. 21T, n. (3). So, likewise, in LyUer v. Dolland, 1 Ves. jun. 421, where two persons took a building lease, and laid out money in erecting houses. Lord Thurlow held them to be partners in respect to this property; and the survivor was decreed to be a trustee of a moiety for the representatives of the deceased partner. "Though," observed his Lordship, "if two persons take a farm, the lease will survive, yet has it not been deter- mined that, if they lay out money jointly upon it, that turns round the estate at law, and makes it equitable? I allude to the case of a joint VOL. I 18 274 REAL ESTATE OF PAKTNERSHIP. lease taken or a fee purchased to carry on a joint trade ; the object being to carry on the trade, the Court thought it -would convert the joint property for the purposes of trade, and making a common advan- tage. I am now clearly of opinion, that, if partners purchase leasehold or freehold to carry on trade, that will carry with it all those L -' circumstances." *See also Grawshay v. Maule, 1 Swanst. 508. A deceased partner, may, however, have so conducted himself by repudiating a contract, as for instance a lease of ground for a building speculation, as to preclude his executors from claiming a share in the lease: Reilly v. Walsh, 11 Ir. Eq. Rep. 22. And see Norway v. Howe, 19 Yes. 143 ; Clements v. Hall. 24 Beav. 333. And though the conveyance of real estate be taken in the name of one of the partners, having been purchased with partnership funds, it will be part of the partnership property: Smith v. Smith, 5 Ves. 193 ; Clegg v. Fishwick, 1 Mac. & G. 294. And see Tibhits v. Phillips, 10 Hare, 355. The question whether property purchased with partnership assets is joint or separate property of the piartners depends upon the circum- stances under which and the purposes for which it was bought. Thus, in the Bank of England Case, 3 De G. F. & Jo. 645 ; one of two part- ners carrying on the business of leather factor bought lands for the purpose of erecting a residence on part of it, and selling the remainder to a railway company. He offered a share to his partner, who was also desirous of building a house out of town for his residence. The offer was accepted, and the purchase-money paid out of the partnership assets ; but the conveyance was to the partners in separate moieties, each of which was conveyed to the usual uses to bar dower. The part- ners at their individual expense built houses upon portions of the land set apart for the purpose, but the other expenses relating to the land were paid out of the partnership assets. It was held by the Lords Jus- tices that the whole of the land constituted joint estate. " Questions of this nature," said Lord Justice Turner, " depend, as I apprehend, gen- erally, if not universally, upon the circumstances. It cannot, I think, be laid down as ^i universal rule, that when lands are bought by part- ners in trade, and are paid for out of the partnership assets, thej' of necessity become part of the joint estate of the partners. There are different purposes for which the lands may have been bought. They may have been bought for the purpose of being used and employed in the trade, but for the purpose of a mere speculation on account of the partnership, for I know nothing which can prevent partners from specu- lating in land, if they think proper to do so, as freelj^ as they may speculate in mere articles of commerce, though foreign to their trade. Again, they may have been bought without reference to the purposes of the trade or the benefit of the partnership, with the intention of with- LAKE V. GIBSON. — LAKE V. CRADDOCK. 275 drawing from the trade the amount employed in the *purchase, and converting that amount into separate propertj^ of the part- ■- ^ ners, or they may have been bought on account of one or more of the partners, he or they becoming debtors to the partnership for the amount laid out in the purchase. The form of the conveyance in these cases does not settle the question, for in whatever form the conveyance may be, there may be a trust of the land which may follow the money, liable, however, as other trusts are, to be rebutted by evidence. Where land purchased is not merely paid for out of the partnership assets, but is bought for the purpose of being used and employed in the partnership trade, it is scarcely possible to conceive a case in which there could be sufficient evidence to rebut the trust, and accordingly in these cases we find the decisions almost if not entirely uniform — that the purchased land forms part of the joint estate of the partnership ; but where the land is not purchased for those purposes, the question becomes more open, and we have to consider whether the circumstances attending the purchase show that it was made on account of the partnership, or of any one or more of them individually, in whose name the land may have been bought. ... I am of opinion that, looking at the case with reference to the whole of the estate, this purchase must be taken to have been made by way of speculation on account of the partnership, and that the petition of the Bank of England accordingly fails and must be dismissed." Where property is not pur chained by persons for partnership pur- poses, but is devised to them as joint tenants, although they make use of it for partnership purposes, they will not be held tenants in common in equity, unless by express agreement, or by their course of dealing with it for a long period, it may be inferred tbat they meant to sever the joint tenancy. In Jackson v. Jackson, 9 Ves. 591, a testator left leasehold and other personal estate embarked in trade to his two sons, as joint tenants, who continued to carry on the trade for twelve years, when one of them died. Lord Eldon, overruling the decision of Sir W. Grant, M. R. (reported t Ves. 535), held, that, under all the circum- stances of the case, the two sous of the testator were to be considered as tenants in common of his property embarked in trade, from the time they were let into possession, including as well the capital as the profits ; for, though there might be cases of distinction between them, the course of dealing for so many years ought to be taken as evidence that they meant to sever the joint tenancy. See also Brown v. Oakshot, 24 Beav. 254. In the case, however, of Morris v. Barrett, 3 Y. & J. 384, in the *Exchequer, a testator devised and bequeathed the residue of his |-j,. .„-, real and personal estate to his two sons, their heirs, executors, and administrators. The two sons, after their father's death, during the period of twenty years, carried on the business of farmers with such estate, and kept the moneys arising therefrom in one common stock. 276 REAL ESTATE OP PARTNERSHIP. and, with part of such moneys, purchased other estates in the name of one of them, but never in any manner entered into any agreement respecting such farming business, or ever accounted with each other. One of the brothers died ; and, upon a bill being filed by the legatees and persons beneficially entitled under his will, it was admitted, by the counsel of the surviving brother, that the estates purchased with the profits of the business and the partnership stock were held by the brothers as tenants in common, but they contended that the leasehold estates and the personal estate which the father bequeathed to them were held by them as joint tenants ; that where real estates, conveyed to persons as joint tenants, had been adjudged to have been held by them as tenants in common, the estates had been purchased expressly for the purpose of a partnership, or for a joint speculation, as in Lake V. Craddock, and that no case could be cited in which real estate devised had been converted from an estate in joint tenancy to a tenancy in com- mon : Alexander, C. B., held that the brothers remained joint tenants of all the property that passed by the will of their father, but were tenants in common of the after-purchased lands. In Dale v. Hamilton, 5 Hare, 369, it was held by Sir J. Wigram, V. C, that a partnership agreement between A. & B. that they should be jointly interested in a speculation for buying, improving for sale, and selling lands, might be proved without being evidenced by any writing signed by, or by the authority of, the party to be charged therewith, within the Statute of Frauds : and that such an agreement being proved, A. or B. might establish his interest in the land, the subject of the part- nership, without such interest being evidenced by any such writing. See S. C, 2 Ph. 266 ; and Dariy v. Darby, 3 Drew. 495 ; but see and consider Gaddick v. Skidmore, 2 De G. & Jo. 52 ; Smith v. Matthews, 3 De G. F. & Jo. 139, 151. Where partners hold real estate for partnership purposes, a question arises, which was not decided in Lake v. Gibson, and Lake v. Craddock (in which case the defendant Craddock, it will be observed, was both heir-at-law and executor of his father), whether the real estate is not, even in the absence of any expressed intention of the partners, so abso- r*l QRl I'l^^'y *converted into personalty as to be held by the surviving partnei-s, not in trust for the heir-at-law, but for the personal representative, of the deceased partner. It is clearly settled, that where real estate is purchased with part- nership capital, for the purposes of partnership trade, it will, in the absence of any express agreeihent, be considered as absolutely con- verted into personalty ; and, upon the death of one of the partners, his share will not go to his heir-at-law, nor be liable to dower, but will belong to his personal representatives. See Townsend v. Devaynes, 1 Mont, on Partnership, Append. 9*7 ; 1 Rob. H. & W., Jac. ed. p. 346 ; Selkrig v. Davies, 2 Dow. 231. So, in Phillips v. Phillips, 1 My. & K. LAKE V. GIBSON. — LAKE V. C R A D Ii C K . 277 649, Sir J. Leach, M. R., held, that freehold and copyhold public-houses, l)urchased with partnership capital, and conveyed to the two partners and their heirs, for the purposes of the partnership trade, were to be considered as personal estate generally, and not only for the payment of the partnership debts. " I confess," observed his Honor, " I have for some years, notwithstanding older authorities, considered it to be settled that all property, whatever might be its nature, purchased with partnership capital for the purposes of the partnership trade, con- tinued to be partnership capital, and to have, to every intent, the quality of personal estate ; and in the case of Fereday v. Wightwich, 1 Russ. & My. 45, I had no intention to confine the principle to the payment of the partnership demands. Lord Eldon has certainly, upon several occasions, expressed such an opinion. The case of Townsend v. JDe- vanes is a clear decision to that effect, and general convenience requires that this principle should be adhered to." This decision lias been followed in Broom v. Broom, 3 Mj'. & K. 443 ; Morris v. Kearsley, 2 Y. & C. Excheq. Ca. 140 ; Bligh v. Brent, 2 Y. & C. Excheq. Ca. 268 ; Houghton v. Houghton, 11 Sim. 491. In re Thomas Ryan, 3 I. R. Eq. 232. It seems, however, that where real^estate belonged to the partners at the time of their entering into partnership, or has been subsequently acquired by them out of their own private moneys, or by gift, con- version will not, unless by express agreement, take place, although the real estate has been used for the partnership purposes in trade. In Thornton v. Dixon, 3 Bro. C. C. 199, three persons, seised in fee of some land called Broadmoor, entered into partnership for twenty-one years as papermakers, and mills were erected upon the land, and they declared the uses of the land to themselves in fee, as tenants in com- mon. They afterwards entered into a new partnership for twenty-one years, by deed, taking in four new partners interested in different *proportions ; and in the partnership deed there was a cove- |-^,q.., nant from -the three original partners to stand seised of the ^ -' land in trust for the co-partnership, in the proportions in which they were respectively interested therein ; and a proviso, that, in "case any of the partners wished to dispose of his or their shares, he or they might do so, giving notice to the other partners, in order that they might have an opportunity of purchasing. The partnership term ex- pired, and they went on afterwards without any new agreement. Dur- ing the second partnership they bought a freehold messuage with a little land adjoining, called Low Meerbeck, for the better carrying on the trade, which was enjoyed by the partners as joint tenants. Upon the death of one of the pdl-tners, who by purchase from the others had acquired one-half of the whole concern, the question arose, whether his share was to be considered as real or personal property. Lord Thur- low, when the cause was first heard, said, he " had always understood 278 REAL ESTATE OP PARTNERSHIP, that, where partners bought lands for the purpose of a partnership concern, it was to be considered as part of the partnership fund, and that, consequently, Broadmoor and Meerbeck must be considered as personal estate, and distributable as such." However, when the cause came on again, his Lordship said, he " thought that, had the agreement been that the mills should be valued and sold, it would have converted them into personalty of the partnership ; but that the agreement in this case was not sufficient to var}' the nature of the property ; there- fore, that, after the dissolution, the property would result according to its respective nature, the real as real, the personal as personal es- tate." It does not appear whether Low Meerbeck was purchased out of the partnership or private funds of the partners ; if the former was the case, this part of the decision cannot be supported, as it is opposed to the doctrine laid down in Phillips v. Phillips. In Balmain v. Shore, 9 Ves. 500, three persons agreed to enter into partnership for ninety-nine years in the business of potters ; and it was covenanted by the articles, that, in case of the decease of any of the co-partners, his share should belong to his widow for her life, and that, after her decease, her share of the joint trade should go to her children ; and if there was no child, to her executors. Afterwards a china and pot manufactory, and otlier premises, were purchased by the partners, and conveyed to them as tenants in common in fee. The conveyance then recited the partner- ship, and declared that the premises should continue to be used in the partnership trade during the continuance of tlie partnership, and each of the partners covenanted that'he would *not, during the con- L -' tinuance of the partnership, sell his share, or sue out a writ or file a bill of partition. Sir William Grant, M. R., observed, " Here the parties have limited and defined the extent of the interest the partner- ship was to have in the real property. Considering themselves as owners of the real estate, as tenants in common, they stipulate that the partnership shall have a certain ownership, notwithstanding that interest in them, as tenants in fee. The premises are to be continued to be used in the trade as long as the partnership lasts. They can claim nothing as partners, except through the covenants ; subject to the covenants, it ^oes as real estate. Whether the heir can derive any benefit is another question. The question for my decision is only, whether I can declare this real estate to be personal property, to go as the shares of the partnership. That, I am of opinion, I cannot de- clare." It was stated in the answers, that the purchase-money of the freehold premises was paid, not out of the partnership efiects, but out of the separate property of each partner. In Cookson v. Cookson, 8 Sim. 529, A. carried on trade upon land of which he was seised in fee. Afterwards he took one of his sons into partnership for twenty-four years, and conveyed to him in fee certain shares in the land ; and, by their articles of partnership, they covenan- LAKE V. (JIBSOX. — LA KB V. CRADDOCK. 279 ted that the land should at all times thereafter be held as partnership property, and be considered and treated as part of the joint stock of the trade ; and it was provided that, if either partner died or retired during the twenty-four years, his copartner might purchase his share, at the sum stated to be its value in the last yearly accounts. In the course of the twenty-four years ITOOZ. was expended out of the partner- ship funds in building on the land. After the expiration of the twenty- four years, and until A.'s death, he and his son continued to carry on their trjide on the land, without entering into any new agreement. Sir L. Shadwell, V. C, held, that A.'s share of the land retained its original character, and descended to his heir. His Honor observed, that those cases could hardly be said to bear upon the" subject, the foundation of which was, in eifect, that freehold tenements were purchased for the benefit of the partnership ont of the partnership assets, for the father was originally solely seised in fee of the freehold tenements in ques- tion, and the whole benefit which the son took proceeded from the father by way of bounty exclusively, and there was no application of partner- ship assets to the purchase of the land in question for the purposes of the partnership ; and his Honor thought that the covenant could not be taken as showing that, for all intents and purposes and for all time, the effect of the dealing between *the father and son was to r*1961 make the father's shares personal property ; for his Honor un- '- -• derstood that covenant as having a very distinct meaning, naraelj', that during tlie partnership, and, if necessary for partnership purposes, after the expiration of the partnership, the shares which the father and son had respectively should be considered as personal estate ; but that it would be quite absurd to say that the covenant should be so extended as that, though the land was not required to be sold for partnership purposes, it should have the effect of making that which was unques- tionably land in its own nature absolutely personal estate, not for any beneficial purpose to the father or to the son, but for the purpose after making a sort of unnatural and unnecessary conversion of real assets into personal, as between the real and personal representatives of the two partners respectively. " In the first place," observes his Honor, in conclusion, " there was no purchase of the land out of the partnership assets for partnership purposes ; and there are no stipulations in the articles of partnership, which, upon a fair construction, can be said to have this effect, namely, as between the real and personal representa- tives of A., of converting the real estate into personalty ; and it was not necessary for any partnership purpose that there should be any conver- sion I) Mr. Bisset, in his work upon Partnership, states that it appears from the MS. notes of Mr. Williamson, one of the counsel for the plain- tiffs in Phillips v. Phillips, that the following important points were determined in that cause: First, that public-houses, devised by the 280 KEAL ESTATE OF PARTNERSHIP. uncle, who was a brewer, to the two nephews, who carried on the brewery as partners, were held not to be partnership property, although they were used exactly for the same purposes as other public-houses, which having been purchased out of the partnership capital, were held to be partnership property, and to be converted into person- alty. Second that, where the uncle had mortgages of public-houses, whether in fee or for years, which he devised to his nephews, and the nephews purchased the equity of redemption out' of the partnership funds, the equity of redemption was held to follow the mortgage, aad not to become partnership property. See Bisset on Partnership, p. 50, and notes (a) and (&), where extracts from the decree as to these two poii^ts are given from the Rfeg. Lib. See Lindley, vol. i., p. 653, 2nd ed. Where, however, real estate was purchased for the purposes of a part- nership in trade, and paid for out of the partnership capital, but upon an agreement between the partners, that it was to be the separate prop- erty of one of them, who took a conveyance of it in his own name, Lord Eldon held, that *he was debtor to the partnership for so '- -' much money as he borrowed, and that the property not being partnership property, his wife was entitled to dower of the whole. Smith V. Smith, 5 Ves. 193. Where real estate is purchased by partners out of the partnership capital, but not for the purposes of the partnership in trade, it will not be converted into personalty. Thus, in Bell v. Phyn, T Ves. 453, three persons, carrying on business as merchants, in London, joined with another person in the purchase of a plantation In the Island of Grenada, two-thirds of which were to be- long to the partners and the remaining third to another person. Part of the purchase-monejr for the two-thirds was paid out of the funds of the partnership, and the parties severally covenanted to pay the re- mainder. The accounts relative to the estate were kept in the partner- ship books. Further payments were made, from time to time, out of the partnership funds, till the death of one of the partners. Upon the death of one of the partners, the question arose, whether his share of the estate was real or personal. Sir William Grant, M. R., held that it was real. " Suppose," observed his Honor, " this was partnership property, I doubt whether the conveyance is a conversion : there was no occasion to call for it for any of the purposes of the partnership. It remains clear. Bach miglit have entered into the enjoyment of his share. Then suppose all die. Why is it to be considered personal property — something different from what it really is, as between the real and personal representatives ? " On a subsequent daj' his Honor said, that he doubted whether there was quite enough admitted by the heir to show that tlie estate at Grenada could be considered, in a proper sense, partnership property, but that the authority of Thorn- ton V. Dixon went the full length of the point for the heir ; for, even LAKE V. GIBSON. — LAKE V. CRADDOCK. 281 if it was partnership property, there was nothing done by the partners to alter the nature of it. In Randall v. Randall, t Sim. 211, Richard and William Randall, tenants in common of an estate, in 1192 agreed to carry on the business of farming together, including the growing of hops; and in 1194 they entered into the partnership of maltsters, and soon after as biscuit bakers. At that time, and during all the subsequent time, Richard Randall carried on his separate business of a land surveyor, and Wil- liam Randall the business of a grocer. The farming and malting busi- nesses were carried on upon the family estate, and the manufacture of biscuit partly on the family estate, and partly on Richard Randall's separate property. In 1802, Richard and William Randall purchased *one-fourth of the family estate from their brother James ; in 1 803 land from Miss Long ; and in 1805 land from Joseph Tarver. No '- -■ conveyance was executed of the lands so purchased, except those pur- chased of Tarver, which were conveyed, as -to one moiety, to the use of Richard Randall in fee, and, as to the other moiety, to the use of Wil- liam Randall, and a trustee, in the usual manner, to bar dower. All the lands so purcliased were paid for out of the partnership moneys, and (excepting the family estate, where the malting and biscuit making were partly carried on) were used solely for farming and agricultural purposes. In 1820, Richard and William Randall purchased, with partnership moneys, two messuages and gardens in Portsea, which were conveyed in the same manner as the lands purchased from Tarver. This property was not used for any partnership purposes, but was let to tenants. In or before 1815, all the partnership busine.->s in trade had been given up, but tlie farming business was carried on in partnership up to August, 1821, when it was terminated by the deatli of Richard Randall. Sir L Shadwell, V. C, after an elaborate examination of the authorities, held, that the lands were not converted into personalty. " It does not," said his Honor, " appear that the parties purchased any part of the land for the purposes of their partnership in trade. Having in the first instance agreed to carry on the farming business in partner- ship, they subsequently agreed to become co-partners, first as maltsters, and afterwards as biscuit bakers. The first purchase that they made was of an undivided fourth part of an estate, of which they previously had a moiety as tenants in common. It would, however, be strong to say, that, because these parties, being partners in the farming business, which is not a trade, happen, collaterally to that business, to carry on a trade, therefore the nature of the property which they so purchased is to be changed ; and, consequently, I do not think that it would be right to hold, that one-fourth of the family estates which Richard and William Randall purchased of their brother James is to be considered as partaking of the nature of personal estate. " The next estate was purchased of Miss Long, but it was never used 282 REAL ESTATE OF PARTNERSHIP. for any of the purposes of the partnership trade; and, as the judges who decided the cases to which I have alluded, have expressed their opinions to be, that land cannot become personal estate unless it is purchased for the purposes of the partnership trade, the land purchased of Miss Long, although it may have been paid for out of the partner- ship capital, cannot be considered as partaking of the nature of per- sonal estate. *" With respect to the land purchased from Tarver, it was '- -' conveyed, as to one moiety, to the use of Richard Randall in fee ; and, as to the other moiety, to the use of William Randall and his trustee, to the usual uses to bar dower. Therefore, there was no contract, either express or implied, that it should have any nature except that which was originally impressed upon it. " The malting business ceased in 180T, and the biscuit baking in 1815. In 1820, the two brothers purchased two houses and gardens in Portsea, which of course were not used for farming purposes, but were let to tenants. These premises were conveyed in the same manner as the land purchased of Tarver ; and if in those instances in which the lands ]iurcliased by the brothers were conveyed to them, it is to be inferred from the form of the conveyance that they intended to hold them as real estate, it is but fair to conclude that they intended to hold those lands Which were not conveyed to them in like manner ; for it would be un- reasonable to suppose that they meant to hold part as land and part as impressed with the character of personal estate. " The fair inference to be drawn from the facts of this case is, that the trade was collateral to, and arose out of, the principal business of farm- ing; and there is no reason to conclude, from any of the decided cases, tliat any of the property to which this suit relates ought to be con- sidered as personal estate." See also Steward v. Blakeway, 6 L. R. Eq. 419 ; 4 L. R. Ch. App. 603. If, however, the owners of real estate, upon entering into partnership, direct or agree that it shall be sold upon the death of one of them, it will be held to be absolutely converted into personalty, and will go to the personal representative, and not to the heir of a deceased partner. See Eipley v. Waterworth, 1 Ves. 425 ; Thornton v. Dixon, 3 Bro. C. C. 199. In the recent case of Essex v. Essex, 20 Beav. 442, two persons seised of freeholds agreed to carry on business in partnership upon the premises for fourteen years, and that if either died during that term,tlie survivor should purchase the freeholds at a staled price. The fourteen years having expired, they by parol agreement continued the partner- ship " on the old terms ; " one of them afterwards died intestate. It was held by Sir J. Romilly, M. R., that the stipulation as to pur- chase was binding, and that the freeholds were converted into per- sonalty, and did not pass to the heir. So, likewise, property purchased with partnership capital, for partner- LAKE V. GIBSON.. — LAKE V. CRADDOCK. 283 ship purposes in trade, and therefore converted into personalty, may be reconverted by the express or implied agreement of *the part- r:(=2()()-] ners. Thus, in Rowley v. Adams, *l Beav. 548, A. & B. pur- ■ chased realty out of their partnership assets, which was used for their partnership purposes, arid was in equity to be considered as personalty. A new partnership was formed between A., B., and C. The realty con- tinued to be used for partnership purposes, but A. and B. stipulated for a rent to be paid them by the new partnership, composed of A., B., and C. A. died. Lord Langdale, M. R., held, that the property was to be considered as part of his real estate. The share of a deceased partner in real estate purchased with part- nership capital and used for partnership purposes in trade is now, it seems, held to be converted into personalty, not only as between the partners and the real and personal representatives of a deceased part- ner — but also for fiscal purposes, and that the Crown is entitled to the benefit of such equitable conversion, and can claim legacy and probate duty in respect of the property which at the death of the partner was existing as real estate. See Forbes v. Stevens, 10 L. R. Eq. 178, 189, where it was held, (overruling the law supposed to have been estab- lished in Custance v. Bradshaw, 4 Hare, 315,) that legacy duty was payable upon a share of a deceased partner — a domiciled Englishman, in the proceeds of freehold property in Bombay used for the purposes of the partnership, and forming a partnership asset. See also Attorney- General V. Brunning, 8 Ho. Lo. Ca. 243. And Hanson on the Prob. Leg. and Succ. Duty Acts, pp. 190, 197. But real estate, acquired by partners for the purposes of their busi- ness, may be dealt with by them in the conveyances in such a way as to prevent this result, by showing that conversion into personalty was not intended. Custance v. Bradshaw, 4 Hare, 315. See also the remarks in Hanson on the Prob. Leg. and Succ. Duty Acts, pp. 7, 189. The result of these authorities appears to be this, that, in the absence of any agreement, and even for fiscal purposes, real estate purchased with partnership capital for the purposes of partnership in trade will in equity be converted into personalty ; but, where real estate belongs to the partners, or has been acquired by them out of their private moneys, or by gift, although it is used for partnership purposes in trade, or if, although paid for out of the partnership capital, it is not purchased for the purposes of partnership in trade, it will, in the absence of any agree- ment or direction for its sale, retain the character of realty. And it seems that conversion will take place not only where real property is acquired for the purposes *of partnership in trade, |-*9q,-i but also where it is acquired with partnership luuds for the purpose of re-sale upon a speculation not properly coming under the de- nomination of trade. Thus, in Darby v. Darby, 3 Drew. 495, where two persons on a joint speculation with their joint moneys, purchased 284 EEAL ESTATE OF PARTNERSHIP. land for the purpose of laying it out in building lots, and re-selling it at their joint profit or loss, it was held by Sir R. T. Kindersley, V. C, that the land was converted out and out, and that the share of a de- ceased pai'tner in part of the unrealized real estate passed to his per- •sonal representatives. " I can have no difficulty," said his Honor, " in coming to the conclusion, that whenever a partnership purchase real es- tate for the partnership purposes, and with the partnership funds, it is as between the real and personal representatives of the partners per- sonal estate. Now this is not the ordinary case, where persons carry- ing on the ordinary business of a commercial or manufacturing partner- ship have found it necessary to purchase real estate for partnership purposes. That is not the case; here they bought land as stock in trade, by the sale of which they were to make their profits ; — the land was not in the nature of plant, but was the very subject matter of their trade. Does that make any difference ? If it does, I think it is in favour of treating it as converted ; because the real estate is here clearly put in the same position as ordinary stock in trade ; and it appears to me, that if I entertained more doubt than I do on the general question, that doubt would in this case be very much diminished by the circum- stance, that here the real estate is itself bought for the very purpose of selling it again. The very intention of the partnership was to buy land to re-sell it. That is their very contract ; and, without selling the land again there would be no partnership business, — the partnership was for the purpose of buying land, to parcel it out in plots, and to sell them again ; and each partner had a right to say he would have that contract carried out. We have here what Lord Thurlow wanted in Thornton v. Dixon, (3 Bro. C. C. 199)— an actual contract that the land shall be sold." Where, as in the principal case, lands are held for partnership pur- poses, that is to say, for employment for some purposes which may pro- duce a return in the shape of profits, so as to add to its value, the joint property will be liable to repay the advances of the various partners before any division can take place (21 Beav. 536) ; but this is not the case where persons are mere joint owners of lands. Thus, in Kay v. Johnston, 21 Beav. 536, the plaintiff and defendant were joint owners ^ of a house, and the *defendant had laid out, in improving and '- decorating it, moneys he had obtained from the plaintiff, it was held by Sir J. Romilly, M. R., that the plaintiff, in the absence of con- tract, had no lien on the share of the defendant in the house for the amount so laid out. " There certainly are cases in and one of those cases is, where a which equity will consider joint purchase of land is made by two tenants as tenants in common ; persons, with a view to expending LAKE V. GIBSON. — LAKE V. CRADDOCK. 285 large sums of money in the im- provement of it ;" per Tilghman, C. J., in Duncan v. Forrer, 6 Bin- ney, 193, 196. See Mayhurry v. Brien et al., 15 Peters, 21, 36. In a case, in Pennsylvania, of a title under warrant and survey, where the purchase-money had been paid in equal portions by two persons, it was decided that the interest was not joint, but in common, chiefly upon the ground that the estate was not a complete legal one, but was only an inchoate in- terest, in the nature of an equita- ble estate. " If a patent had been issued to the two persons," said Tilghman, C. J., "I incline to think, that the circumstance of their having paid the purchase- money equally, would not have been sufficient to render the estate a tendancy in common in equity. Such is the opinion of Lord Hard- wicke in \_Rigden v. Vallier^] 3 Atk. 73t, although the contrary seems to have been taken for granted, in the argument of coun- sel, in 1 Vern. 361. But there are cases, where in equity, an estate will be considered as in common, although at law it is a joint ten- ancy. In such cases, courts of equity proceed on the intention of the parties deduced from the na- ture of the transaction : as where several persons engage in an enterprise, which requires large advances besides the original pur- chase-money, the draining of marshes, for instance, or the erection of mills or manufacto- ries. The case of Lake v. Grad- dock et al., 8 P. Wms. 158, was a purchase of lands overflowed with water, for the purpose of reclaiming them. This was con- sidered as a tenancy in common, although the legal transfer was in joint tenancy. So if two advance money on a mortgage, though the estate is conveyed jointly, it shall be a tenancy in common." Gaines v. Lessee of Grant, 5 Bin- ney, 119, 120. See Guyler and others v. Bradt and others, 2 Caines' Cases, 326 ; Currie, &c. V. TihVs Heirs, 5 Monroe, 440, 443 ; Overton v. Lacy, &c., 6 Id. 13, 15. In regard to the case discussed in the preceding note, where a mortgage is made to two jointlj' as security for money advanced by both, there is a diflerence among the authorities in this country. In Massachusetts, al- though a statute provides that all conveyances to two or more gran- tees shall create a tenancy in com- mon, unless an opposite intent be apparent, it is yet settled that a conveyance by mortgage to two persons in fee, to secure a joint debt, makes a joint tenancy, be- fore foreclosure ; upon the ground that as the remedy to recover the debt would survive upon the death of either, the intent of the parties must be that the collateral security of the mortgage should comport with the remedy by action, and therefore should survive ; Apple- ton V. Boyd, T Massachusetts, 131, 134 ; but after foreclosure it be- comes a tenancy in common in the land ; Woodwin v. Richardson, Adni., 11 Id. 469. And the de- cision in Appleton v. Boyd, has been followed in Maine ; Kinsley 286 REAL ESTATE OF PARTNERSHIP. V. Abbott, 19 Maine, 430, 434; ■where it is spoken of as con- venient, and as affording the most simple remedies with the least liability to inconvenience and loss. Under a similar statute of Rhode Island, however, this con- struction was disapproved of in the Circuit Court, and it was held that the tenancy was in common, and that upon the death of one, the legal title to a moiety of the estate vested in his heirs, though as a security, the benefit of it fol- lowed the debt ; Bandall v. Phil- lips et al, 3 Mason, 8T8, 384. [The question when and under what circumstances real estate shall be considered as partnership prop- erty, has been the subject of much discussion in this country, and the cases as a whole amply show, that land bought with the assets and for the purposes of a partnership, is partnership property in equity, although the deed is taken in the name of the partners as tenants in common, or of one partner only, and without anything on its face to show the existence or right of the firm; Jarvis v. Brooks, 1 Foster, 3*7 ; Matlock v. Matlock, 5 Indiana, 403 ; Burnside v. Merrick, 4 Metcalf, 531 ; The Fall River Whaling Co. v. Borden, 10 Cush- ing, 458 ; Ghamplin v. Tillinghast, 4 Rhode Island, 113, 208; Jones V. Neale, 2 Patton & Heath, 339 ; Willis V. Freeman, 35 Vermont, 44 ; Dewey v. Dewey, lb. 555 ; The Fall River Go. v. Borden, 10 Gush- ing, 458 ; Grooker v. Grooker, 46 Maine, 250, 260 ; Matlack v. James, 2 Beasley, 136 ; Peck v. Fisher, 1 Gushing, 386 ; Ludlow v. Gooper, 4 Ohio, N. S. 1 ; Moreau v. Saffa- ran, 3 Sneed, 595 ; see 1 Am. Lead- ing Cases, 595, 602, 5th Amer. ed. It is therefore subject to the equi- ties of the partners as such, and of those claiming under them as creditors and purchasers, and the partnership debts, must conse- quently be satisfied, before any portion of the fund is applied to the separate debts of the partners ; Brooker v. Brooker, 46 Maine, 250; Buffum v. Buffum, 49 Id. 108 ; Matlack v. James, 2 Beasley, 126; Abbott's Appeal, 14 Wright, 284 ; OverhoU's Appeal, 2 Jones, 222 ; Fowler v. Bailey, 14 Wiscon- sin, 125 ; The Bank v. Sprague, 5 C. E. Greene, 13 ; Robertson v. Ba- ker, 11 Florida, 19; The Fall River Whaling Go. v. Borden, 11 Gushing, 458. Hence, a judgment against one of the members of a firm, will be postponed to a sub- sequent mortgage by the part- nership ; The Lancaster Bank v. Miley, 1 Harris, 544, while a similar preference will be given to an execution issued for a demand against the firm, over a prior writ for the separate debt, of a part- ner ; Jarvis v. Brooks ; Peck v. Fisher ; Rice v. Barnard, 20 Vermont, 479; Brooker y. Broo- ker, 46 Maine, 250, 260 ; although the lien of a separate creditor will extend as far as the interest of the debtor, and cannot, as it would seem, be a nullity, unless the latter is in debt to the firm, or the assets of the firm are not more than ade- quate to the satisfaction of the joint creditors; see post, vol. 2, notes to Silk v. Prime. The principle applies a fortiori LAKE V. GIBSON. — LAKE V. CRADDOCK. 287 to those claiming under the part- ners as volunteers, and the widow, heirs and devisees of a deceased partner consequently hold in trust for the payment of the partner- ship debts, and cannot have any beneficial interest until these are paid in full, and the equities of 'the partners adjusted among them- selves : Dyer v. Clark, 5 Metcalf, 562 ; Nicoll v. Ogden, 29 Illinois, 323 ; Uhler v. Semple, 5 C. E. Greene, 288. The right thus acquired by the partnership is, however, a mere equity, and will consequently be discliarged by a transfer of the legal title to a purchaser for value, and without notice ; M'Dermot v. Lawrence, 7 S. & R. 438; Haile V. Henrie, 2 Watts, 143 ; Ridg- way'n Appeal, 3 Harris, 11T ; Co- der V. Huling, 3 Casey, 84 ; Ar- nold V. Wainwright, 6 Minnesota, 358 ; Buchan v. Sumner, 2 Bar- bour, Ch. 198; Hale v. Flummer, ' 6 Indiana, 121 : Tillinghast v. Champlin, i Rhode Island, 178, 209 ; although notice will be im- plied in this, as in other cases, if the circumstances are such as to justify the presumption that the purchaser either knew, or was wilfully ignorant; Tillinghast v. Champlin, 4 Rhode Island, 173, 209 ; Jones v. Neale, see post, vol. 2, note to Le Neve v. Le Neve- Some of the cases go further, and hold that the equity of the part- ners cannot be stt up or enforced by or on behalf of the joint, against the separate creditors, unless the latter are shown to have bad notice of its existence at or before the time when the debts came into ex- istence ; Haile v. Henrie ; Ridg- way^s Appeal ; but this would seem more questionable, and is contrary to the general rule that creditors are subject to all the equities of their debtors, and can take no right which the latter could not have enforced for their own benefit ; post, vol. 2, notes to Bassett v. Nosworthy. In GrookerY. Croofcer, 46 Maine, 250, 263, the partnership creditors accordingly obtained a preference over a prior lien arising out of an attachment for the private debt of one of the partners, notwithstand- ing the objection that there was nothing on the face of the deed to indicate the equity of the firm, or that the partners were not tenants in common. The law was held the same way in Matlack v. Javies, 2 Beasley, 126, and a conveyance in consideration of a separate debt, postponed to a judgment against the firm. A trust for the firm may, as it seems, arise out of, or be fastened upon a conveyance of land to one or more of the partners, in the ab- sence of written evidence, on proof that the consideration moved from the partnership, or consisted of their funds or property, as in other cases where a purchase is made by one man, with the money of an- other ; Buchan v. Sumner, 2 Barb. Ch. 165 ; Columb v. Bead, 24 New York, 505 ; post, note to Dyer v. Dyer ; or by a declaration or ad- mission in writing, signed by the party to be charged ; Tillinghast V. Champlin, 4 Rhode Island, 173, 209 ; Delmonico v. Guillaume, 2 Sandford's Ch. 366 ; Fhilips v. REAL ESTATE OF PARTNERSHIP. Gramond, 2 W. C. C. R. 441 ; The Fall Biver Whaling Co.y. Borden; Buchan v. Sumner; Jarvis v. Brooks, 7 Foster, 37 ; but cannot, apparently grow out of an oral agreement, without facts and cir- cumstances of a nature to satisfy the Statute of Frauds, which re- quires a writing where real estate •is in question. When, moreover, the trust is sought to be deduced from the nature of the assets which formed the consideration for the purchase, it will be open to the whole range of parol evidence, and may be rebutted by every species of proof tending legitimately to show, that the equity is consist- ent with or should be subordinated to the legal title ; Phillips v. Cra- mond, 1 American Leading Cases, 496, 4th ed. (See Eailev. Renrie, 2 Watts, 1 43, which restricts, and Dale V. Hamilton, 5 Hare; 369, ante, which goes as far the other way in extending, the right to raise a trust for the partnership by parol evi- dence.) There can be little doubt that the purchase of land by a partner in his own name with the money of the firm, without the knowledge or consent of his co-partners, will give rise to a trust for the partner- ship as distinguished from the part- ners ; Phillips V. Gramond, 2 W. C. C. R. 441, 445 ; Lacey v. Hall, 1 Wright, 360, 365 ; although a dif- ferent view was taken in Krug v. Hamilton, 16 Illinois, 190. The trust in such cases arises from the fraud, and is constructive rather than resulting ; Lacey v. Hall. In Banvers v. Smith, 5 Sand- ford, 669, where a co-partnership erected buildings and made other improvements on the land of one of the partners, it was held that a trust arose for the firm and it is clear that money so laid out may give birth to a lien, which equity will enforce ; A verill v. Loucks, 6 Barb. 19 ; Kendall v. Rider, 35 Id. 100 ; Lane v. Tyler, 49 Maine, 252. There can be little doubt that the purchase of land by the part- ners, for the purposes of the part- nership, and subject to an express or implied agreement that it shall be held for the benefit of the firm, will render it partnership property, although the whole of the con- sideration is furnished by the part- ners individually, and no part of it comes from the assets of the partnership; Roberts v. M'Carty, 9 Indiana, 16, and the weight of authority in England seemingly is, that the investment of the funds of a firm in land, with their consent and approbation, will not render it partnership property, unless the purchase is made for partnership purposes, and will simply give rise to a resulting trust, for the partners individually, under which they will prima facie, take equal shares or moieties, unless shown to have been unequally interested in the consideration ; Goder v. Huling, 3 Casey, 84 ; Gox v. Mc- Burney, 2 Sandford, 561. In New York, on the other hand, land bought with the assets of the partnership, or taken in payment of a partnership debt, belongs prima facie to the firm. Buchan V. Sumner, 2 Barb. Ch. 65 ; Golumb V. Read, 24 New York, 505; al- though the presumption may be LAKE V. GIBSON. — LAKE V. CKADDOCK. 289 rebutted by parol ; pout, notes to Dyer v. Dyer. If the object of the parties is to withdraw so much capital from the firm, and distri- bute it as land among the part- ners, there will be no trust, and as this is a question of intention, recourse may be had to the part- nership books, and the cotempora- neous declarations of the partners as a means of ascertaining tlieir design ; Columh v. Read ; Burd V. Morrison, 12 Wisconsin, 138. The courts of PenusylvAuia hold, in conformity with the general course of decision, that where the partnership assets are surrepti- tiously invested in the purchase of real estate, a trust will arise for the firm : Lacy v. Hall, 1 Wright, 360 ; Erwinh Appeal, 3 Id. 535. The trust may, as Mr. Justice Strong remarked, in Lacy V. Hall, be regarded as resulting from the consideration, or as im- plied from the confidential rela- tion existing between the par- ties. A conveyance to the partners as individuals, or to one or more of them, with the knowledge and consent of the rest, will not, how- ever, give rise to a trust for the firm, although the purchase is made with the money of the partnership, and with a view to the prosecution of its business, because the pre- sumption arising from the nature of the consideration is rebutted by the form of the instrument, which indicates that the grantees are to take and hold as tenants in common : Hale v. Henrie, 2 Watts, 143 ; Ridgway''s Appeal, 3 Harris, lit ; M' Dermott v. Lawrence, 1 VOL. I. — 19 S. & R. 438 ; Lefeure's Appeal, 19 P. F. Smith, 122. Although such is the rule in Pennsj'lvania as it regards lien creditors and purchasers, it has, notwithstanding, been held that land bought with partnership as- sets, and for the purposes of the firm, is partnership property as be- tween the parties, and must be so treated when the rights of strangers do not intervene : Abbott's Appeal, 14 Wright, 234. In Abbott's Ap- peal, the question arose between surviving members of an insolvent firm and the representatives of a deceased partner, and the latter were held to be entitled to the pro- ceeds of the land, although 'it had been conveyed to the partners in- dividually as tenants in common. If this equity exists between the partners, it should be enforced against those claiming under them as creditors, and purchasers with notice, because the right of a creditor does not ordinarily trans- cend that of the debtor. In Over- holt's Appeal, 2 'Jones, 2i2, a judgment for a debt due by the firm was accordingly said to have priority over judgments for the debts of the partners individually, and the cases of Abbott's Appeal, 14 Wright, 234, and Erwin's Ap- peal, 3 Wright 535, point in the same direction. But these de- cisions were virtually overruled in Lefevre's Appeal, 19 P. F. Smith, 122, and Ebbert's Appeal, 20 Id. 79, which establish in accordance, in M'Daraugh v. Lawrence, Y S. & R. 438, and Hale v. Henrie, that where the rights of third per- sons are involved, the court will 290 KEAIi ESTATE OF PARTNERSHIP. not go beyond the legal title for the sake of giving effect to a doubtful equity. The rule as now settled in Pennsjdvania, is that as between the partners themselves, a resulting trust may be inferred for the firm, and the land treated as partnership property, where it is clearly shown that they so regarded it, and that it was paid for with the money of the partnership ; but that such a trust cannot be set up against creditors and purchasers where the title is taken and held by the partners in their individual capacity as tenants in common : ■ EherVs Appeal, 20 P. F. Smith, 19, 81. Whatever difficulty may exist under other circumstances, it is clear, that unless the trust is estab- lished by written evidence, it must be cotemporaneous with the acqui- sition of the legal title. An oral agreement to bring land into a firm, or to share it with an incoming partner, is invalid under the Stat- ute of Frauds, notwithstanding the payment of the consideration. The subject was carefully consid- ered in M' Cormick's Appeal, t P. P. Smith, 54. Strong, J., said: "The land originally belonged to Martin Billmyer. In January, 1854, he ' agreed to sell one undivided half to Jacob M. and W. H. Follmer, for the sum of $6,100 ; and the three agree to become partners in the lumber business, and in the property. It was agreed, that of the purchase money, $2,000 should be paid in cash, and the balance out of the profits of the business.' The agreement was not in writing. On the 20th of February follow- ing, the Follmers paid $2,000, to be credited as part payment on the property. The balance does not appear ever to have been paid. In the spring of that year, pre- cisely at what date is not shown, they went into possession with Billmyer, and the three continued the lumbering business in the firm name of Billmyer, Follmer, & Co. Afterwards the firm built a saw mill on the tract with partnership funds, and made other improve- ments. These are the facts sub- stantially as found, quite as strongly stated as they were proved by Chamberlain, the wit- ness. Do they show a divesture of the title of Martin Billmyer, and an effective transfer of it to the firm of Billmyer, Follmer & Co. ? And do they show such a transfer before the lien of the judgments of Porter, for the use of McCormick, the appellant attached ? — These judgments were recovered on the 29th day of March, 1854.— Most clearly they do not. The contract to sell the land or to put it into the partnership stock, is as much within the operation of the Stat- ute of Frauds as any other parol contract of sale would have been. If the title passed out of Billmyer, when was it ? Not when the parol agreement was made, in the -vi^inter of 1854 ; nor when the $2,000 were paid on account, February 20th, .1854. This is not claimed. It must have been then in the spring, when the Follmers went into pos- session jointly with Billmyer. But that such a taking possession does not withdraw a parol contract from the operation of the Statute of LAKE V. GIBSON. — LAKE V. CRADDOCK. 291 Frauds, is too clearly settled to admit of denial. The possession taken under such a contract must not only be notorious and distinct, but it must be exclusive of the vendor. Receiving a parol vendee into joint possession with his ven- dor, is not equivalent to the an- cient feudal investiture, for which the Statute of Frauds intended to declare a writing should be the only substitute. The notoriety and significance of an entry into common possession, is much less than when an owner leaves, and another person takes the sole and exclusive enjoyment. Hence, it has been held, that a tenant in common in possession, cannot pass his title to his co-tenant in posses- sion by parol, because there can- not be in such a case that distinct transfer of possession which equity regards equivalent to a written contract : Hill v. Meyers, 1 Wright, 110 ; Workman v. Guthrie, '5 Oa- sey, 495. In Frye v. Shepler, Y Barr, 91, it was said that "to con- stitute a valid parol sale under the Statute of Frauds, the possession must be exclusive of the donor." The same doctrine was asserted in Haslet V. Haslet, 6 Watts, 464 ; so, also, in Ghadwick v. Felt, 11 Casey, 305. There is in the pres- ent case an additional reason for holding that the entry of the Foll- mers into joint possession with Billmyer did not take their pur- chase out of the Statute of Frauds. It is found in the fact that they became partners with him to prose- cute the lumbering business. This business was to be conducted on the property. There was, there- fore, a reason for their entry apart from any purchase. To the neigh- borhood the partnership was quite sufficient to account for the pos- session. The Court below thought these doctrines were inapplicable to the case, because there was no tenancy in common here. But the mischief against which the statute was designed as a guard, is greater in cases of parol transfers to part- nerships than in any other cases." " In Hale v. Henrie, 2 Watts, 143, Judge Sergeant expressed the opinion, that " when partners in- tend to bring real estate into the partnership stock, their intention must be manifested by deed or writing placed on record, that pur- chasers and creditors may not be deceived." He added, "that to permit a j)erson, apparently own- ing property as an individual, to aver a different right in himself as a partner, by which his relation to creditors and others would be affected, would defeat the Statute of Frauds and Perjuries, by which no interests in real estate can vest, or be transferred without deed or writing." And in Sidg- way, Budd & CoJs Appeal, 3 Harris, ITT, it was said, that " when partners intend to bring real estate into partnership, their intention must be manifested by deed or writing placed on record ; and it is not competent to show by parol evidence, that real estate, conveyed to two persons as ten- ants in common, was purchased and paid for by partners, and was partnership property." See, also, Lancaster Bank v. Myley, 1 Har- ris, 544. From these cases, it ap- 292 REAL ESTATE OF PARTNERSHIP. pears that proof by writing, and even record, is more rigidly re- quired in conveyances to partner- ships than in other sales." " Undoubtedl J' a partnership may hold real estate, and they may have a resulting trust, where the part- nership funds have paid for land. Such was the case of Erwmh Ap- peal^ 3 Wright, 535. So, there may be a constructive trust in favor of a firm, as was held in Lacey v. Ball, 1 Wright, 360 ; but these Gome within the exceptions to the Statute of Frauds. In both these cases the lands were acquired after the partnerships had been formed, and while the joint business was in progress. But there is no result- ing or constructive trust. The agreement, if there was any, to put the land into the joint stock, was made before the firm had any being, and the partnership funds did not pay for it. A parol agreement to put land into a firm, or to consider it as firm property, made before the firm exists, is wholly inefiectual to pass any title either in law or in equity." The weight of authority seems to be in accordance with this de- cision, that the mere circumstance that the parties to such a transac- tion are partners, will not dispense with the necessity for written evi- dence, or take the case out of the Statute of Frauds ; Bird v. Morri- son, 12 Wisconsin, 138. The agree- ment need not, however, be re- duced to writing, and may be collected from the books or letters of the firm, or of the partner whom it is sought to charge. Although this appears to be the better view of the law, it is embar- rassed with some practical diffi- culties, which the opposite theory avoids. A., B. & C. enter into a partnership on equal terms. Land is purchased with the assets of the firm and for its use. An arrange- ment is subsequently effected, under which A. is paid in full, and withdraws, but without signing any writing that will satisfy the requisitions of the statute of frauds. C. subsequently becomes a mem- ber of the firm. Does the owner- ship of the land vary with these changes ? If it does not, the inten- tion of the parties fails of effect ; if it does, the trust is an implied or constructive, and not a resulting trust, because a resulting trust must be contemporaneous with the transfer or acquisition of the legal title ; Jlf' Gohnick's Appeal, 7 P. F. Smith ; post, notes to Dyer V. Dyer. See Shearer v. Shearer, 98 Mass. 101, 111; Erwiri's Ap- peal, 1 Wright, 360, 365. The better opinion would seem to be, that land does not lose the character of realt}', or acquire that of personalty, by the mere fact of becoming partnership property ; and that it still remains land, although charged with an equita- ble lien for the payment of the part- nership debts, and the balance of the accounts between the partners ; Tillinghast v. Ghamplin, 4 Rhode Island, 1Y3, 201 ; Dyer v. Clark, 5 Metcalf, 580 ; Buchan v. Sunv- ner, 2 Barb. Ch. 168, 201 ; Buck- ley V. Buckley, 11 Barbour, 43, 74 ; Lacy V. Waring, 25 Alabama, 625 ; 1 American Leading Cases, 608, 5th ed. ; unless there is an LAKE V. GIBSON. ■LAKE V. CRADDOCK. 293 agreement actually made between the partners, or implied from the nature of the partnership, that it shall be sold and distributed as money, when a conversion will re- sult as in other cases, where such an agreement is entered into by persons competent to make it ; Kramer v. Arthur^ 1 Barr, 165 ; post, notes to Fletcher v. Ashhur- ner. Dicta may be found the other way, and to the point that real estate owned by a partner- ship, is viewed by equity as per- sonal property for all purposes, unless the rights of bona fide pur- chasers are in question ; Roberts V. WCarty, 9 Indiana, 16 ; Coder- well V. Mullison, 9 Harris, 25'7 ; The Lancaster Bank v. Miley, 1 Id. 544; Pierce v. Trigg, 10 Leigh, 406, 424 ; Buchan v. Sum- ner ; Gollumb'Y. Bead; Laiurence V. Taylor, 5 Hill, lO'T, 111 ; Black V. Black, 15 Georgia, 445, and Hoxie V. Barr, 1 Sumner ; but the point was not actually presented in these cases ; and it would seem more reasonable to hold, with the Supreme Court of Massachusetts in Dyer v. Dyer, 5 Metcalf, 580, and with the High Court of Ap- peals of Maryland in Ooodburn V. Stevens, 1 Md. Ch. 420 ; 5 Gill, 127 ; that land does not necessarily cease to be a corporeal heredita- ment, by being charged with a trust for the payment of the debts, and rendered subservient to the other purposes of a partnership, and that any portion of it which re- mains after such a trust is satisfied, will, in analogy to the rule laid down in Ackroyd v. Smithson, post, descend to heirs, and be subject to the other incidents of realty, in- stead of vesting in the representa- tives of the parties as personalty ; Oalbraith v. Gedge, 16 B. Monroe, 631; M'Cullough v. Somerville, 8 Leigh, 415; Hall v. Plummer, 6 Indiana, 621 ; Green v. Graham, 5 Ohio, 163. Equity should, as it would seem under these circum- stances, follow the law, except in so far as it may be necessary to depart from it, and leave the legal title free to follow the path which the law has marked out; unless a different course is requisite to protect the equities of the part- ners ; • Lacy v. Waring, 25 Ala- bama, 625. And the safer ground on which to put the case of The Lancaster Bank v. Miley, seem to be, that an execution for a lia- bility of the firm is equally enti- tled to priority over an antecedent lien for the separate debt of one of the partners, whether real or per- sonal estate is in question ; Bu- chan V. Sumner, 2 Barbour's Ch. 1^8 : a position which is undenia- ble when the partnership is insol- vent, and which would appear to be thought applicable, in many of the States of this country, to sol- vent firms, post, vol. 2, note to Silk V. Prime. It was accord- ingly held in Hale v. Plummer ; Galbraith v. Gedge, 16 B. Monroe, 631, and Goodburn v. Stevens, 1 Maryland Ch. 420, that land bought or held as partnership property, is subject to the dower of the widow of a deceased part- ner, unless it has been stamped with the character of personaltji- for all purposes, by an express or implied agreement, although her 294 REAL ESTATE OF PARTNERSHIP. right is subordinate to the lien of the debts of the firm, and the state of the accounts between the individual partners. Hence, she will be precluded if the partner- ship is insolvent, and cannot re- cover until its solvency has been ascertained ; Goodburn v. Stevens ; while in Goodburn v. Stevens, the court went still further by denying her a proportionate share of the arrears of rent and profits, which had accrued while the sufficiency of the assets was under investiga- tion. " It may be answered," said Gookins, J., in delivering the opinion of the court in Hall v. Plummer, "that the widow of a deceased partner is not entitled to dower in real estate, held for part- nership purposes. It is true that real estate may be so held for partnership purposes as to exclude the widow's right of dower ; but we think it may also be so held as not to exclude it. Mr. Story says, that ' so far as the partners and their creditors are concerned, real estate belonging to the part- nership is, in equity, treated as mere personalty, and governed by the general doctrines of the latter. And so it will be deemed, in equity, to all intents and purpo- ses, if the partners themselves have, by their agreement or other- wise, purposely impressed upon it the character of personalty ; ' Story on Partnership, s. 93. In the absence of any such agreement or act, the same writer says, ' there is a great diversity of judicial opinion, and of judicial decision, as to whether it is to be treated as real or personal property. Upon looking into the authorities, Eng- lish and American, it is quite evi- dent that the effort to reconcile them would be a hopeless task, and we are left to adopt what seems to us the more reasonable rule upon the subject. In a late decision, in New York, Chancellor Walworth uses the following lan- guage : ' The American decisions in relation to real estate purchased with partnership funds, or for the use of the firm, are various and conflicting. But I think they may generally be considered as es- tablishing these two principles. First, That such real estate is in equity chargeable with the debts of the co-partnership, and with any balance that may be due from one co-partner to another, upon the winding up of the affairs of the firm. Secondly, That as between the personal representatives and the heirs at law of the deceased partner, his share of the surplus of the real estate of the co-part- nership, which remains after pay- ing the debts of the co-partner- ship, and adj usting all the equitable claims of the different members of the firm, as between themselves, is to be considered and treated as real estate ; Buchan v. Sumner, 2 Barb. Ch. R. 165. See also Buck- ley V. Buckley, 11 Barb. S. C. R. 44. " The High Court of Chancery, in Maryland, has adopted the rule, as indicated by Judge Story, in the section quoted from his work on partnership. That court decided in the case of Goodburn V. Stevens, that real estate of a partnership, though regarded in a court of equity as personal estate LAKE V. GIBSON. ■LAKE V. CRADDOCK. 295 for all partnership purposes, yet, in the absence of an express or implied agreement, indicating an intention to convert it into per- sonal estate, it will, when the claims of the partnership have been satisfied and the partnership accounts adjusted, be treated in a court of equity as at law, as real estate, and be subject to the dower of a deceased partner ; 1 Mary- land Ch. Decisions, 420." The principle is the same where a husband asserts his right as ten- ant by the curtesy to land held by his deceased wife as a co-partner ; Buckley v. Buckley, 11 Barb. 43. The main current of decision in the United States is in accordance with these authorities. Thus it has been held in Massachusetts that the purchase of land with part- nership assets, and for the use of the firm, does not convert it into personalty. It will, therefore, descend to the heirs of a deceased partner, instead of being dis- tributed among his next of kin or legatees ; Wilson v. Wilcox, 13 Allen, 253 ; Shearer v. Shearer, 98 Mass. lOY. It is subject to the lien of the partnership debts, and the advances made by the partners to the firm, but in all else it obeys the ordinary rule, that a trust arising from the conversion of money into land, is real estate. The same doc- trine prevails in Alabama, 625, and in New York, Buckley v. Buckley, 11 Barb.; and, as it would seem, in Pennsylvania, even when the deed recites that the premises are to be held for the use and as the property of the firm ; Wood v. Witherow, 8 Philada. 51T. The subject was elaborately ex- amined in Shearer v. Shearer, where Wells, J., held the following language in delivering judgment: " The real estate of a firm is to be converted into personalty, only when such conversion is required for the payment of claims against which are in the nature of debt- Balances due to individual partners come within this definition. So also may capital, furnished by one partner, when by the terms upon which it was furnished, or from the nature and necessity of the case, it is to be repaid in specific amounts, in order to reach the net result, or body of the partnership interests, to which the proportional rights or shares of the several partners attach. In short, whatever is re- quired to be paid or measured in precise sums must be so adjusted ; and real estate, converted for that purpose, undoubtedly becomes per- sonalty, and is to be distributed as such when paid over to the party entitled. But the shares in the body of the partnership, those in- terests which are not measured by precise amounts, but consist in a common proprietorship after all special claims are satisfied, stand upon different footing. These interests are determined by the proportions fixed by the arti- cles or organic law of the part- nership. When the beneficial in- terests and the legal title cor- respond, it has already been decided that the rights of the partners in real estate, so held, will be left to adjust themselves by the descent of the legal title, with its incidents, as real estate of the several part- 296 REAL ESTATE OF PARTNERSHIP. ners, held in common ; Wilcox v. Wilcox, uhi supra. When the legal title is otherwise held, it is held in trust ; and the equitable title de- scends in like manner and with like incidents, except as to dower. The office of equity in such case is merely to declare the trusts, and compel the legal title to serve the equitable interests. This is accom- plished by directing such convey- ances, as will make the legal title of the several parties conform to their respective beneficial in- terests. By the rule above indi- cated, all partnership rights and obligations are secured, and all equities growing out of that rela- tion are met and answered. To require equitable interference to go further, and convert all real estate into personalty, for the mere pur- pose of a division, seems to us to be an unnecessary invasion of the right of the co-partners, and when under- taken in the interests of one class of the representatives of a deceased partner, against another class of representatives of the same part- ner, it seems to be a departure from the legitimate sphere of equitable jurisdiction. It is not the pro- vince of equity to seek to coun- teract or modify the operation of the laws of descent and dis- tribution. There are no equities between heirs and distributees, under our laws, which can call into exercise or quicken the powers of the court, for the conversion of realty into personalty. We do not un- derstand that, in the English courts, any such supposed equities have ever been made a ground for the doctrine of equitable conversion^ as held there. In the case of Cook- son V. Gookson, 8 Sim. 529, such a ground of interference was em- phatically discarded. That case, however, is not one in which the full extent of the English doctrine was asserted. Conversion into personalty is not necessary to en- able creditors of the individual partner to secure payment of their debts out of the share of their debtor in real estate held in co- partnership. By our laws, all property of a debtor, whether per- sonal or real, is liable for paj'^ment of all his debts. Creditors, there- fore, require no equitable inter- position, except such as may be necessary for tlie assertion of the rights of the partner himself. Their rights are secured, in respect to real estate held in copartnership, through the equities which pertain to their debtor. In this particular the laws of England differ. The inheritance there being exempt from liability for debts by simple contract, it is only by conversion and payment of the proceeds to the personal representatives of a deceased partner, that his private creditors can receive pa3'ment out of such property. How far, if at all, this consideration may have been influential in determining the extent to which the doctrine of equitable conversion should be carried, and in establishing the right of the personal representa- tive to require it to be made in his favor, we are unable to judge. The cases in which the personal representative of a deceased part- ner has been held entitled to en- LAKE V. GIBSON. — LAKE V. CRADDOCK. 297 force this right against the heir, do not indicate, so far as we have been able to examine them, whether it is done in behalf of creditors or of distributees. The doctrine, however, seems now to be fully established, without regard to the consideration whether there are private creditors or not ; Darby v. Darby, 3 Drewry, 495. This may, perhaps, be regarded as the most natural result of the rule holding such property liable forthepayment of all partnership obligations, when it is considered how far that liability deprived partnership real estate of the fixedness and permanency of ownership, which characterize the inheritance in realty there." It is entirely consistent with these principles, that land purcha- sed with an expressed or implied agreement in writing, or appear- ing from facts and circumstan- ces, that it shall be sold, and the proceeds divided among the parties, should be the subject of an equitable conversion, entitling the adjninistr;itors of a deceased partner as against his heirs ; Kra- mer V. Arthur, T Barr, 165 ; Mcoll V. Ogden, 29 Illinois, 323 ; ClaggeitY. Kilbourne, 1 Black, 346. But this rule should be applied with caution, as tending to frus- trate the intention of the deceased, unless he is cognizant of its exist- ence. See NicoU v. Ogden. There is no doubt, said Tilghman, Ch. J., in M'DermottY. Lawrence, '7 S. & R. 491, " that by the agreement of the parties, land may be brought into the stock and considered as personal property, so far as it con- cerns the parties themselves, and their heirs and personal represen- tatives," and similar language was held in Abbott's Appeal, 14 Wright, 234, 238. The question whether the real estate of a firm is personal prop- erty, does not arise unless the partnership Is solvent, because all the authorities agree that if it be not, there is an undoubted equity to have the land applied to the payment of the partnership debts, and of the advances made by the members of the firm on partner- ship account, which is all that the authorities in the United States es- tablish, when regarded as a whole. On the dissolution of an insolvent firm by death, the duty of working out this equity devolves on the surviving partners, who may con- sequentl3' effect a sale of the real estate of the partnership, and file a bill against the heirs of the de- ceased partner, to compel a con- veyance of the legal title ; Del- monico v. Guillaume, 2 Sandfordi Ch. 366 ; Abbott's Appeal, 14 Wright, 234 ; Depuy v. Leven- worth, lY California, 262 ; Andrew V. Brown, 21 Alabama, 43T. Another reason for not regard- ing the conversion as absolute is, that while the personal property of a partnership is subject to the control of each of its members, and a bona fide purchaser from one of the partners will have as good a title as if he had bought from the firm, its real estate is governed by different principles, and cannot be sold without the concurrence of all the members of the partnership ; Galbraith v. Oedge, 16 B. Monroe, 631 ; Buffin 298 REAL ESTATE OF PARTNERSHIP. V. M'Co7inell, 11 Illinois, 212, 217 ; Arnold v. Stevenson, 2 Nevada, 234; Story on Partnership, sect. 94 : a sale by one partner to a purchaser with notice, passing, as it would seem, nothing more than his interest as an individual, subject to the debts of the firm, and to an account with his co- partners, even when professing to be made for partnership purposes, and to be of the whole interest of the firm ; Anderson v. Tompkins, 1 Brockenbrough, 45'! ; Tapley v. Butterfield, 1' Metcalf, 513 ; Dyer V. Clark, 5 Id. 580 ; Tillinghast v. Champlin, 4 Rhode Island, 173, 219 ; 1 Am. Lead. Cases, 609, 5th ed. Jorms v. Neale, 2 Patton & Heath, 339, 352. He should, there- fore, confine himself to selling that which he is really entitled to dis- pose of; and an attempt on his part to use the legal title, as a means of transferring any greater interest, to the prejudice of his co-partners and the joint creditors of the firm, will be presumptive evidence, of fraud on his part, and of collusion on that of the purchaser if the latter is aware of the equity, which will vitiate the sale and prevent it from operating as a pur- chase for value and without no- tice, and thus barring the equity of the other partners ; Soxie v. Garr, 1 Sumner, 193. The death of the other members of the firm will, however, as it would seem, invest the surviving partner with the absolute control, both of the real and personal property of the partnership, for the purpose of winding up its aflairs and dis- tributing the proceeds among all concerned ; Andrews v. Brown, 21 Alabama, 437 ; and enable him to confer a good title on a purchaser, free from all liability, on the part of the latter, for the application of the purchase money; Tillinghast V. Champlin, 4 Rhode Island, 173, 219. But as the power thus ac- quired, is in strict subordination to the trust for the partnership, it must be exercised in the way best calculated to obtain the full value of the property. Hence, the estate must be sold as a whole, and not in separate shares or moieties, and a surviving partner cannot sell or convey his legal right to the land as a tenant in common, with- out committing a fraud which will attach to, and invalidate the title of a purchaser with notice ; Til- linghast V. Champlin, 4 Rhode Island, 173, 219 ; Lacy v. War- ing, 25 Alabama, 625 ; ante, note to Elliot V. Merryman. And in Galhraith v. Gedge, 16 B. Monroe, 631, 633, the right of a sole sur- viving partner to sell of his own motion, was denied, and the proper course said to be to procure the concurrence of the heirs of the deceased members of the firm, either in pais, or by a resort to the aid of equity. In Lawrence v. Taylor, 5 Hill, 107, the court held that although an authority to convey land must be in writing under the statute of frauds, the rule was otherwise with regard to a contract to convey. In the latter case, the agent might be appointed by parol, or the existence of the authority deduced from the acts of the principal. A ratifica- tion would, moreover, relate back. LAKE V. GIBSON. — LAKE V. CRADDOCK. 299 and be equivalent to a command. If the principal adopted the act, though merely by silence or ac- quiescence, he would be bound. A recovery was accordingly had against the firm for money -which had been paid to one of the part- ners, under a contract with him for the purchase of the real estate of the partnership, on proof that the title was defective, and that the other partners had said in the hearing of three persons, that they had an interest in the contract. It has been decided in some in- stances that if a deed by one of several partners is sanctioned by the rest, it is immaterial whether their consent is given orally or in writing ; Gibson v. Warden, 14 Wallace, 244 ; Haynes v. See- christ, 13 Illinois, 496 ; Wilfton v. Hunter, 14 Wisconsin, 1Y3. In Sunter v. Wilson, a mortgage by a partner, acknowledged by him as his act and deed on behalf of the firm, and proved to have been au- thorized by his co-partners, was accordingly held valid against a subsequent purchaser with notice. The court cited and relied on Story on Partnership, 122, where it is said that an authority or rati- fication, express or implied, ver- bal or written, will render a deed by one of the members of a firm as efiectual as if it had been exe- cuted by all. This may be true as a general proposition ; Gibson v. Warden ; Greuter v. Williams, 40 Alabama, 561 ; but it does not apply where land is concerned, nor in any case within the provis- ions of the statute of frauds. Whatever may be thought on this point, it is clear that as the doc- trine of relation is a legal fiction, devised for the purposes of justice, a ratification by the firm should not be allowed to defeat an inter- vening encumbrance ; Haynes v. Seachrist ; see 1 Smith's Leading Cases, 722, 7 Am. ed. ; Bird v. Brown, 4 Exchequer, 786 ; Buron V. Denman, 2 Id. 166. In Tillinghast v. Gliamplin, 4 Rhode Island, 173, 219, Ames, C. J., held the following language, in delivering the opinion of the court. " The counsel for the re- spondent is mistaken in supposing, under such a state of facts as this, that the fact that the deed of this lot runs to the individual members of the firm of Gardner & Brother, as tenants in common, without describing them as co-partners, raises a presumption, in the view of a court of equity, that the prop- ertjr, thus bought and used, is in- tended to be kept as the separate property of the respective partners, which stands, until some express and even written proof is given to show, the contrary intention. A court of equity does not ordinarily, in relation to such a subject, base its presumptions upon mere forms, but rather upon .facts which lead to the substantial truth and justice of the case. The well-set- tled presumption in equity is pre- cisely the other way. As said by Chancellor Walworth, in Buchan v. SuTnner, 2 Barbour's Ch. R. 198, 199, ' Where real estate is purchased with partnership funds for the use of the firm, and with- out any intention of withdrawing the funds from the firm for the 300 REAL ESTATE OF PARTNERSHIP. use of all or any of the members thereof as individuals, it has never been doubted in England, that such real estate was in equity, to be considered and treated as the property of the members of the firm collectively ; and as liable to all the equitable rights of the partners as between themselves. And for this purpose the holders of the legal title are considered, in equitjr, as the mere trustees of those beneficially interested in the fund, not only during the existence of the co-partnership, but also upon the dissolution thereof by the death of some of the co- partners or otherwise.' And see the cases cited by him, and to same eifect. Hoxie v. Garr, 1 Sumn. 181, per Story, J. In this last case, Mr. Justice Story says : ' But the circumstance that the payment has been made out of the partnership funds, especially if the propertjr purchased be neces- sary to the operations of the part- nership business, and be actually so employed, will afford a very cogent presumption that it was in- tended to be held as partnership property ; and in the absence of all countervailing circumstances, it will be absolutely decisive.' ' In whosesoever hands the legal title may be placed, whether in one or all of the co-partners, and whether the deed describes them as co- partners or as tenants in common, if the property be purchased with the funds, and for the use of the firm, the decisive presumption in the absence of proof to the con- trary, is that it was intended to be held as partnership property.' Hunt V. Benson^ 2 Humph. 459 ; Buchan v. Sumner, 2 Barb. Ch. R. 205 ; Smith v. Tarlton, Id. .336, 338 ; Delmonico v. Ouillaume, 4 Sandf. Ch R. 366; Dyer v. Clark, 5 Metcf 518, 581 ; Howard v. Priest et al. Id. 585 ; Burnside et al. v. Merrick et al., i Id. 541; 1 Am. Lead. Cases, Hare & Wallace's notes, 604, and cases cited ; Collyer on Partn., sect. 154, where see the result of all the authorities stated. The line of cases cited and rt'lied on by the counsel f ir the respon- dent upon this subject will be found to refer to the question whether real estate of a co-part- nership, upon the death of one of the co-partners, and after the debts have been paid and the equities adjusted between the several mem- ' bers of the firm, belongs, in equity, to the executor or administrator of the decedent as a part of his personal property; or whether the beneficial interest, as well as the legal title, in the decedent's share of such real estate, descends to his heirs at law. Upon this question of equitable conversion of real into personal estate as be- tween the heir and personal repre- sentative of a deceased partner, Lord Eldon overruled the latest decision of Lord Thurlow and the decision of Sir William Grant, and held in Devaynes v. Devaynes, Montague on Partn. App. 91, in favor of the conversion, and con- sequently in favor of the title of the executor or administrator, to such surplus. His ruling upon this point seems to have been generally followed by the later chancery judges in England ; al- LAKE V. GIBSON. -LAKE V- CRADDOCK. 301 though two or three recent cases, in which the circumstances were special, have been decided in favor of the heir. The American cases, on the other hand, generally adopt the conclusion that the deceased partner's share of the surplus of the real estate of the co-partner- ship, which remained after paying the debts of the co-partnership and adjusting all the equitable claims of the different members of the firm as between them- selves, is, as between the heirs-at- law and personal representatives of the deceased partner, to be con- sidered and treated as real estate. DyerY.. Clark, 5 Metcf 578, 519; Howard et al v. Priest et al., Id. 585,586 ; Burnside et al.v. Merrick et al., i Id. 541, 544 ; 1 Am. Lead. Gas., Hare & Wallace's notes, 491, 492, and cases cited. The whole subject is, however, so luminously treated by Chancellor Walworth, in Buchan v. Sumner, 2 Barb. Ch. R. 198, and ouwards, with a full discussion of the cases, English and American, up to the time of his judgment, (184Y,) that nothing need be added ; and indeed the question of what shall become of any surplus of such property, after the equitable trvi-^t under which it is held is satisfied put of it, is so foreign to the case before us, that we should not have mentioned it, except in answer to the cases with regard to it, cited and relied upon by the counsel for the respondent. " It was noticed, too, by the counsel for the respondent, that in Dyer v. Clark, Howard et al. v. Priest et al., and Hoxie v. Garr, the respective deeds under which the partners in those cases held the real estates there in question, described them as co-partners, as if that were the ground of decision in either of those cases. That the deed did describe the grantees as co-partners is true of the case of Dyer v. Clark ; but it is true only of one of the two parcels of land in question in Priest et al. v. Howard et al., which were conveyed by separate deeds ; the land and store in Moon street, Boston, being con- veyed to the two ijartners as ten- ants in common, and not describing them as co-partners ; 5 Metcf. 583; In Burnside et al. v. Merrick et al., 4 Id. SSI, decided at the same time, the deed does not seem to have described the grantees as co-part- ners, as is shown by the mode in which the court state the question on page 541. It is evident, there- fore, that the absence of such a description in the deeds was not deemed controlling in either of those decisions. In Hoxie v. Carr, Judge Story notices that one of the deeds from a former proprietor to the co-partners, Reynolds & Hoxie, of his interest in the thirty- seven acres of land thereby con- veyed, bounds it, on one side, on a three-acre lot, stated to belong to the West Greenwich Manufactur- ing Co., and which formed part of premises in dispute, and that the deed from Reynolds to Carr spoke of the whole As formerly belonging to the same company. No doubt a chancellor would seize hold of such a feature in a case before him, for the purpose of strengthening the presumption raised by the sub- stantial fact that the estate was 302 KEAL ESTATE OF PARTNERSHIP. purchased with the co-partnership funds, for the co-partnership use ; but we have already seen that Judge Story put the latter as the main ground of presumption and not the former fact ; liable to be rebutted, of course, by any controlling agreement or act of the co-partners. This feature, — deemed so controlling, — exists in very few of the American cases, and in none of the English cases that we recollect. In Delmonico V. Guillaume, 2 Sandf. Ch. R. 366, the deed of the farm adjudged by the chancellor to be co-partnership property, was originally executed to John Delmonico, who subse- quently executed to Peter Del- monico a deed conveying to him an undivided half. But without taking more time in commenting on particular cases, all of which have, of course, their peculiar features more or less marked, and more or less controlling the judgment of the courts before which they were heard, it is clear from them, that the trust in favor of the firm is held to result from the fact that the consideration was paid by it, as in other cases of re- sulting trusts ; and the implication of this trust is held to be confirmed by the fact that the property was bouglit for the use of the firm and actually used in its business, when no agreement, or conduct implying such an agreement, prior, or sub- sequent to, or at the time of the purchase, is proved, to indicate an intention on the part of the co- partners to hold the real estate thus purchased by them in undivided shares as their separate property. " The other question involved in this cause, that is, whether the title to the property in question acquired by the respondent, Champlin, is, under the circum- stances, held by him subject to, or exonerated from, the trust -f^ith which it was clothed in the hands of his grantor, remains to be con- sidered. "Beyond doubt, a bona fide, purchaser or mortgagee of part- nership lands, who obtains the legal title from the person in whom it is vested without notice of the equitable rights of others in the property as a part of the funds of the co-partnership, is entitled to protection in courts of equity as well as in courts of law. Per Walworth, Chancellor, Buchan v. Sumner, 2 Barb. Ch. R. 198. To this extent, and no further, go tlie decisions in the cases of M'Der- mot V. Lawrence, Y Serg. & Rawle, 438 ; Forde v. Herron, 4 Munf. 416 ; Eaile v. Henrie, 2 Watts, 143; Ridgway's Appeal, 3 Harris, (15 Penn.) 17T,and the remark of the court in Sigourney v. Mann, 1 Conn. 11, relied upon by the coun- sel for the respondent. Holding, as we do, that this real estate was co-partnership property, the legal title to the undivided half was held by the surviving partner, accord- ing to every authority on this sub- ject, English and American, cited on either side, in trust, for the payment of the debts of the firm, and of any balance that might be due to the estate of the deceased co-partner upon the settlement of the partnership accounts. For the purpose of executing this LAKE V. GIBSON. — LAKE V. CRADDOCK. 303 trust, though but half the legal title was vested in him, the sur- viving partner had the right in equity to sell the whole beneficial interest in the estate ; and a court of equity would assist the pur- chaser by contract, to get in the legal title to the other half from the heirs-at-Iaw of the deceased co-partner, even tliough they were infants. Delmonico v. GuillauTne, 2 Sandf. Ch. R. 366-368, and cases cited ; Dyer v. Clark, 5 Metcf. 576 ; Howard et al. v. Priest etal.. Id. 585 ; Burnside et al. v. Mer- rick et al., 4 Id. 540, 541, 545 ; Andrews v. Brown, 21 Ala. 43Y ; M'Alister v. Montgomery, 3 Hayw. 94. On the other hand, the sur- viving partner, though he may be clothed with the whole legal title, has no right or power to divert the trust property to his own pri- vate uses, in derogation of the rights of the creditors of the firm, or of those entitled to the estate of his deceased co-partner. If he were to attempt it, a court of equity would, upon proper appli- cation, restrain him from so do- ing, remove him from the trust he was violating, and appoint a re- ceiver in his stead. If he convey the trust estate for such a purpose to any one cognizant of the trust with actual, or under such circum- stances or in such form or mode as to give constructive, notice of his design to violate it, the person taking the conveyance, though a purchaser for full value, takes it subject to the same trust, though the consequence may be to deprive him of the whole benefit of his purchase. It is only the bona fide purchaser for value, who, as in the cases already cited, purchases it in ignorance that it is co-partnership or trust property, or, as in cases that might be supposed, knowing that it was co-partnership prop- erty, takes the title in such form and under such circumstances as to indicate to him that it is sold and conveyed for the purpose of applying the proceeds to the pro- per uses of the trust, that can hold the title exonerated from the trust. Such a purchaser does not stand in equity merely upon the derivative title of his grantor. Invested with the legal title, he securely rests upon his own equi- ties as an honest purchaser, with- out notice and for value — always protected — always a favorite, so to speak, in a court of equity. We agree with the counsel for the re- spondent, that it will not do to say, as taking the language of the courts away from the connection in which it is used in some of the cases that have been cited, and es- specially in the case of Hoxie v. Garr, it has been said before us, that, under all circumstances, he who purchases the real estate of a co-partnership from the surviving partner, knowing it to be such, and knowing that there are co- partnership debts, will take the estate subject to those debts. Much less is it true, as it has been contended, that such an estate can be administered, and a title to it given, only through the inter- vention of a court of equity. Such a partner, certainlj-, and each partner of a dissolved firm, unless deprived of it by contract, 304 REAL ESTATE OP PARTNERSHIP. has, in equity, precisely the same power to deal with the co-partner- ship property as during the con- tinuance of the co-partnership, though liable in proper cases to be deprived of tliat power by the appointment of a receiver. Per Turner, Lord Justice, Butchart v. Dresser, 31 Eng. L. & Eq. R. 121. If the legal title in co-partnership lands be in him, he may dispose of and convey the whole beneficial interest in those lands for the pur- pose of realizing the proceeds of sale, and of applying them to the payment of the debts of the firm and ol the final balance that may be due to him as co-partner ; and a court of equity will not interfere most surely with this exercise, which duty imposes, or his said claims justify, of his jus dispo- nendi. So far from it, it will, as we have seen, if tlie legal title be in part only vested in him, or be wholly vested in another, assist him in the exercise of his right, by compelling the conveyance of the legal title to himself, or to a purchaser from him, when such a conveyance is needed to enable him to perform his duty to others or to satisfy even the demands that hf, may have as co-partner upon such property of the firm. In such cases, the purchaser, though he know that he has pur- chased co-partnership property, and that there are co-partnership debts to be paid out of it, yet if he honestly buy the property of and pay for it to the surviving partner, with no knowledge of, and under circumstances from which a court of equity implies no notice of, an intended misapplication by the partner of the proceeds of sale, will not be liable, on account of any fraud, default, or miscarriage of the surviving partner with re- gard to them. It is a strict logi- cal sequence, that the right to dis- pose of such property on the part of the surviving partner, implies and requires the right to buy it, on the part of an honest and care- ful purchaser ; nor is this, as has been contended before us, one of that class of trusts, in which, not- withstanding the power of sale on the part of the trustee or surviv- ing partner, the purchaser, know- ing that he is purchasing trust property is bound to see to the ap- plication of the purchase-monej' ; or, in this case, to see that it is applied to the payment of the co- Ijartnership debts. We grant that such a notion is inferable from the language used by Mr. Justice Story, in Hoxie v. Carr, 1 Sumn. 192, if it be proper to discon- nect his language from the case before him, or to suppose that he intended accurately to state all the conditions of the case in which, under all circumstances, a pur- chaser of the real estate of a part- nership from a co-partner of a dis- solved firm would take the estate subject to the burden of the trust. But such an inference would do great injustice to that learned judge, who to great acquisitions added a keen sense of justice. He was speaking in relation to the case before him, which we shall have occasion hereafter to com- pare with and apply to this. A surviving partner, in the sense in LAKE V. GIBSON. — LAKE V . CRADDOCK. 305 ■which he is a trustee of the real estate of the co-partnership, is certainly a trustee with as clear a power to give receipts for the purchase-money, upon sale, as to give receipts to the debtors of the firm, upon payment to him of the co-partnership debts. This results from his power and duty, so far as necessary, to convert the partner- ship property into money, and therewith to pay the co-partner- ship debts and to settle the final balance, if any, which may be due, upon settlement of the co- partnership accounts, to the repre- sentative of his deceased co-part- ner. It was never dreamed, in a court of chancery, that this fell within that class of trusts, in which, tested by the well-known distinctions of the leading case of Elliot V. Merryman, Barnardis- ton's Ch. R. If 8, the purchaser was bound to see to the application of the purchase-money, provided he knew that he was purchasing a portion of the trust estate. Thus to limit his power of sale, would be to load the settlement of the co-partnership estate with an in- tolerable burden, — lessen it at once to one-half its value, as a subject of sale, — and, as contended by the counsel for the complain- ant, necessarily draw the settle- ment of every such estate into a court of chancery to be adminis- tered and sold under its orders, for the protection of purchasers and the consequent realization of the value of the property of the firm. How foreign all this would be to the course of chancery with regard to such a trust, may be VOL. I 20 seen by the examination of the case above cited, and the admira- bly arranged collection of authori- ties, Anxeriean as well as English, which, allowing for the difference of circumstances, have, in the main, followed it for upwards of an hundred years, found in 1 White & Tudor's Leading Cases in Equity, with Hare and Wal- lace's notes, ante, 101, 123. The only danger to a purchaser of the trust estate from a trustee of the class in which a surviving partner is to be ranked, can arise from his becoming a party to a breach of trust on the part of the trustee, or from his making his purchase un- der such circumstances as to visit him with constructive notice that a breach of trust, as to purchase- money, is designed ; Eland v. Eland, 4 Mylne & Craig, 18 Eng. Cond. Ch. R. 427 ; Hill v. Simp- son, 7 Ves. 152 ; Champlin v. Eaight, 10 Paige, 275 ; and see Rogers v. Skillicorne, Amb. 189 ; Walker v. Smalwood, Id. 676; Lloyd V. Baldwin, 1 Ves. 173 ; Watkins v. Cheek, 2 Sim. & Stu. 1 Eng. Cond. Ch. R. 199. " That a gross fraud has been perpetrated by the surviving part- ner in this case, by the sale of the undivided half of this real estate of the firm of Gardner & Brother, and absconding with the proceeds, is admitted on all hands ; and the question which we are to decide, is, whether the consequences of this fraud are to fall upon the creditors of the firm and the es- tate of the deceased co-partner, or upon the respondent Champlin, who, as he alleges and proves, paid 306 EEAL ESTATE OF PARTNERSHIP. full value for Ms purchase. In the view in which the state of the proof compels us to regard this case, it will be a hard case which ever way we decide it ; and the question simply is, whether, under the circumstances of his purchase, the respondent, Chaniplin, having obtained the legal title to an un- divided half of the real estate of the firm in question, has an equal equity with the creditors and the estate of the deceased co-partner to the beneficial interest of the moiety purchased by him. If he has, he cannot be disturbed in the full enjoyment of his purchase by us, whatever may be the conse- quences to them ; if he has not, our course and duty will be plain before us, whatever may be the consequences to him. This ques- tion, in our judgment, depends upon the solution of two other questions, mainly questions of fact. " First. Did he know that he was purchasing the property of the firm of Gardner & Brother, needed for the payment of the debts of that firm, or to settle any balance of the co-partnership ac- counts due to the estate of the deceased co-partner ? and "Second. Are the circumstances under which he made his purchase, and the nature of the interest con- veyed to him, such as in the view of a court of equity, give him notice of the breach of trust in- tended by Benjamin W. Gardner, from whom he took his deed ? "He has sworn in his answer that he did not know that this real estate was co-partnership prop- erty ; but supposed that it was the separate property of the two co-partners, held by them as sepa- rate property, according to the form of the deed under which they held it, as equal tenants in com- mon. Now this may be quite true in one sense ; for he probably did not know how a court of equity regards real property held by the co-partners under a deed in that form, when bought with the money and credit, and held for the uses of the co-partnership ; and indeed the whole manner in which this co-partnership was attempted to be settled, both by Benjamin W. Gardner and the administrator of William A. Gardner, shows a gross ignorance of the law relat- ing to this whole subject. But such ignorance, though it might relieve him under some circum- stances from the imputation of actual fraud, cannot aid him in the view of a court of equity, when called upon to determine whether he had legal notice of a fact, or to adjudge the legal eifect of his acts. If, knowing the facts that this prop- erty was bought with the partner- ship funds for partnership use, and was exclusively used by the part- nership during the whole term of its continuance, he took upon him- self to determine, from the form of the deed under which it was held by the co-partners, that it was not co-partnership property, he took upon himself, in a matter of law, to be wiser than the law ; and if mistaken, has no one to blame for his presumption but himself The aid of the able counsellor who has argued his LAKE V. GIBSON. — LAKE V. CRADDOCK. 307 case, invoked before he made his purchase, might have been even more helpful to him in this par- ticular than circumstances have allowed it to be. " Now for us to doiibt that the respondent, Champlin, knew these facts, which appear from the proof to have been notorious in the vil- lage of East Greenwich, and which the partners themselves, by their daily acts and repeated declara- tions, took pains, for the sake of obtaining credit for their firm, to make so, would suppose on our part a degree of skepticism quite unfitting us for an oflSce which re- quires us, in matters of proof, to weigh and decide upon probabili- ties. Although, during a portion of the time, at least, of the con- tinuance of this co-partnership, the respondent owned and occu- pied a farm a few miles off, in West Greenwich, yet the occasions of his business and pleasure, as proved, brought him frequently to the village of Bast Greenwich, where the firm did business, and where the works in question were situated, and where, also, the re- spondent's mother and family resided. His personal and busi- ness relations with both the mem- bers of this firm were intimate. His sister was the wife of William A. Gardner, and Benjamin W. Gardner boarded with his mother, and was thought to be attentive to an unmarried sister, and he was frequently with both the co-part- ners, and was advised with about their business. He bid off for William A. Gardner, at auction, the very lot upon which these works were situated, when sold by the town of East Greenwich, and must have known the openly de- clared purpose for which it was bought. From the proof, no one could have been more cognizant of the credit and capital upon which the firm did business, and out of which they built up the property in question. This inti- macy continued with Benjamin W. Gardner, after the decease of Wil- liam A. His brother, Robert H. Champlin, was the original admin- istrator appointed on the estate of William A. Gardner, and he himself took apparently a great interest in the affairs of the es- tate, frequently attending the courts of probate when questions concerning it were there agitated, and seeming to be a prominent actor in its affairs. He knew, or aflfected to know, the precise con- dition of the estate of his deceased brother-in-law ; and informed the witness, David W. Hunt, a credi- tor of the firm to the amount of $400, only some six weeks after the death of William A. Gardner, that he would get his whole debt, — that the debts of the estate were about $3,000, and that there would be- property enough to pay them all ; though he declined the offer of the witness to guarantee the payment of his debt for a com- mission of five per cent. In his answer, he admits that both at the decease of William A. Gardner, and at the time of the taking of his deed, he knew that the firm owed debts, though not the amount; and although he denies that he knew that the firm was insolvent. 308 REAL ESTATE OF PARTNERSHIP. yet it is evident from the fact, and his means of knowledge concern- ing it, that he must have known that it was grossly so, and that nothing was done by the surviving partner, who still continued to use the property of the firm, to pay any of its debts. A purchase made of a surviving partner thus situated and thus conducting, to the knowledge of the purchaser, would be required by a court of chancery to be made under cir- cumstances of openness, publicity, and consultation with all interested in the estate, and in a mode quite free from suspicion in all respects, before the purchaser could affect to stand before it upon as high a ground of equity as the creditors of the firm, or the representatives of the estate of the deceased co- partner. " But what were the circum- stances of this purchase, and the mode in which it was affected ? Without communication, so far as the evidence shows, with the rep- resentative or heirs of the deceased co-partner, in the latter of whom the legal title to the other undi- vided moiety of this estate was vested, and in the disposition of which the former was interested in relief of the estate of his dece- dent, he is found with Benjamin W. Gardner one evening, as late as 9 o'clock, rousing up a justice of the peace to take the latter's acknowledgment of the deed in question, ostentatiously hands over to the justice $1,200 in the first place to count, as the considera- tion of the deed, and then hands over that, with $50 more, to make the precise amount, to Benjamin W. Gardner, who delivers to him the deed. After this they are seen together in conversation coming from the house as late as 10 o'clock, and this is the last that we hear of this consideration money or of the surviving partner, Benjamin W. Gardner, who that same night, or early the next morning, absconded with the whole of it and probably much more, and has never been heard of by the creditors of the firm since. " Now grant that, considering the denial of the answer, there is here no such proof of community of corrupt design and action be- tween the seller and the purchaser, so pointedly charged in the bill, as will justify us in holding that the charge is proven ; yet there are circumstances creating grave sus- picion, which cannot be overlooked in a court called upon to weigh and balance the equities of such a purchaser with the undoubted equitable rights of the creditors of the firm. If this seerecj'' and cover of night in this transaction were sought at the suggestion of the seller, they should have ex- cited the suspicion of the pur- chaser; if sought bj' the latter, considering the other facts attend- ing the execution of the deed, they go somewhat farther, and certainly do not aid the ease of the respondent. " But further, and most espe- cially, it is to be considered, that this was an insolvent firm, with a large amount of debts outstanding, whose existence was known to the respondent, and none of which he LAKE V. GIBSON. ■LAKE V. CRADDOCK. 309 knew had been paid by the co- partner, whose duty it was to pay them, and with whom he was deal- ing. He was taking from this partner a conveyance of a portion of what he knew, or should have known, as a matter of law, was the property of the firm ; and cer- tainly knew, as a matter of com- mon honesty, should be applied to the payment of its debts. This mill property should have been sold together, as a whole, if the purpose had been to realize the most from it for the benefit of the creditors ; and no one could have known this better than a sharp, active man of business, such as the respondent is proved to be. To sell it in undivided shares was to sacrifice a large portion of its value ; for no one would buy the other half except the respondent, and he could get it almost at his own price ; and the proof is, as might have been foretold, and should have been foreseen, that, as the consequence of this trans- action, neither half of this prop- erty is worth the nominal amount of the consideration paid by the respondent for the moiety thus purchased by him. " We do not say that under no circumstances can the sale by a surviving partner of an undivided moiety of the real estate of a firm, the legal title of which is to that extent vested in him, be upheld in a court of equity. Such a sale may be made with such consent of all parties interested in it, with such publicity, and may even be so advantageous in some conceiv- able cases, as a mode of sale, as to be approved and even directed by a court of equity. But when, as in this case, a surviving partner in whom one half of the legal title of the real estate of the firm hap- pens to be vested, affects privately to convey to one who knows that it is partnership property, precisely that undivided half, treating it as if it were beneficially his own, he thereby gives presage of an intent to convert the proceeds to his own use, instead of applying them to the uses of the firm whose prop- erty it is. The purchaser must know, if the property be co-part- nership property, that the state of the legal title cannot represent in whom the beneficial interest in it is really vested ; and in what pro- portion, if in any proportion, in him from whom he is taking the title. The very fact that he knows that it is co-partnership property, and especially, as in this case, that there were co-partnership debts outstanding to a large amount, gives him notice that others are interested in the estate than him with whom he is dealing, with whom he should in all fairness communicate, as entitled to know what disposition is about to be made of their own. But if he will privately and secretly contract with and pay his money to a sur- viving partner for his legal title, who by the form of the transac- tion is treating the matter as if he deemed the property as his own, and meant to appropriate the proceeds of sale as his own, to his own use, it is doing him no more than justice for a court of chancery to inform him, that he 310 REAL ESTATE OF PARTNERSHIP. shall have precisely what in such a mode of purchase, and under such circumstances, he had a right to expect, — the legal title only ; the beneficial interest to go to those to whom in equity it be- longs. Though warned by the surroundings of the transaction, he chooses to rely solely upon the good faith and honesty in his trust, of the mere owner of the legal title, who may not, as he should know, have a scintilla of interest in the beneficial estate, and must abide by the result of his mis- placed confidence, if such it turn out to be. If added to all this there be, as here, circumstances of suspicion hanging about the exe- cution of the deed, looking at the time and mode of conducting it, and the sudden absconding at the close of the transaction of the surviving partner with the pro- ceeds of sale, we cannot estimate the equities of the purchaser at so high a value as to allow them to counterbalance the clear and un- doubted rights of the creditors of the firm in whose aid our jurisdic- tion is invoked by the equitable representative of the rights of the deceased co-partner. In Hoxie v. Carr, 1 Sumn. 193, the fact that the deed was executed by one co- partner only, was alluded to by the learned judge who tried the cause, as showing ' that the pur- chasers should and ought to have known, that without a joint con- veyance or release from all the partners, no absolute conveyance could be acquired by their grantee, Reynolds. They were put upon inquiry to ascertain whether any such conveyance or release had been made ; and they cannot now set up their ignorance of law to excuse their want of diligence ;' and he then goes on to show that if the purchasers in that case had made inquiries, that they would have ascertained the very facts which the evidence convinces us that this respondent knew. In- deed, the learned and accurate commentators upon this and the class of cases to which it belongs, — Messrs. Hare & Wallace — say, that 'it is a consequence of the principle of land being affected with a trust as co-partnership property, that when one partner disposes of his separate interest in land held as co-partnership stock, to a purchaser having notice, he sells only his residuary interest, after the partnership debts and the share of the other partner are paid ;' 1 Am. Lead. Cas. Hare & Wallace's notes, 492." Such was evidently the idea of Mr. Justice Story, as expressed in his decision in the case of Hoxie V. Garr et al. ; and such was the opinion expressed by the Supreme Court of Massachusetts, in Dyer V. Clark, 5 Metcalf, 580. 'But if,' says the learned chief justice of that court, in delivering its judgment in the latter case, ' a person knows that a particular real estate is the partnership prop- erty of two or more, and he at- tempts to acquire a title to any part of it from one alone, without the knowledge or consent of the ' The note cited above Is from the pen of the late Mr. Wallace. LAKE V. GIBSON. — LAKE V. CRADDOCK. 311 other, there seems to be no hard- ship in holding that he takes such title at his peril, and on the respon- sibility of the person with whom he deals.' It is true, as sug- gested by the counsel for the re- spondent, that in case of a disso- lution by death of a firm consist- ing of but two co-partners, the sole power to dispose of the co- partnership property and apply it to the payment of debts and to close the co-partnership accounts, survives to the surviving partner ; and thus, that he is the only per- son, as long as he is suffered to exercise the trust, to act in its administration. But the surviv- ing partner is but a trustee ; and if he from his secret and suspicious mode of dealing with the trust property, treating it by the very mode of his conveying it as if it were his own, and regardless of the interests of the creditors of the firm as to the residue, sells to a purchaser an undivided share of it, because the legal title to that share happens to be vested in himself, we deem that he thus ap- prises the purchaser of his design ; and that, under such circum- stances, his absconding with the proceeds of sale should be re- garded as little more than the ful- filment of a reasonable expecta- tion on the part of the purchaser." Whatever the rule may be under ordinary circumstances, it is set- tled that the real estate of a partnership will be regarded as personalty, where the agreement be- tween the parties, or the purpose for which it is purchased, shows that the intention was that it should be sold, and distributed as money ; Ludlow V. Cooper^ 1 Ohio, N. S. 1 ; Kramer v. Arthurs, 7 Barr, 165. Thus in Kramer v. Arthurs, the object of a joint stock asso- ciation, formed for the purpose of buying and selling land, and di- viding the profits which might ac- crue among the stockholders, was said to be obviously, to deal with the land as a mere commodity, and to look not to it, but to the proceeds for compensation. The interest of its members, as between themselves, and those claiming under them with notice, was conse- quently held to be a mere right to the amount, if any, which might re- main after the winding up of the association, which partook of the nature of personalty and could not be bound by the lien of a judg- ment. " That an incorporated joint stock company," said Gib- son, C. J., in delivering the opin- ion of the court, " is an ordinary partnership, and that there may be a partnership to deal in lands, are elementary principles that have not been disputed. The lat- ter was expressly recognized by this court in Brady v. Calhoun's Administrators, 1 Penna. Rep. IdY. ' Partnerships,' says Gow on Partnership, 6, ' are not neces- sarily confined to trades in com- mercial adventures. They may lawfully exist in cases uncon- nected with commercial specula- tions. For instance, a partnership may exist between attorneys or farmers, as well as between mer- chants or bankers.' It would be absurd to let the nature of the ar- ticle dealt in change the nature of 312 REAL ESTATE OF PAKTNBRSHIP. the contract ; or not to let part- ners give to the land the' attri- butes of a commodity, as between themselves and those standing in their place, especially in a country where it is a chattel for payment of debts, and not unfrequently a sub- ject of speculation. Where it is brought into a concern as stock, it is, as between the partners and a per- son who has knowingly dealt with one of them for it, to be treated as personal estate belonging, not to the partners individually, but to the company collectively. The members of this company, being sharers of profit and loss, were partners to the world ; but, be- tween themselves, they had only a contingent interest in the profits to be derived from the lands when the concern should be wound up, not a vested estate as tenants in common of the lands themselves ; and, to a purchaser with notice, or its equivalent, neither of them could part with more, either by a voluntary or an involuntary con- veyance. As an agent entitled to a third of the profits in compensa- tion of his services, it cannot be said that Havens had any prop- erty at all in the corpus of the stock : and as to him, or a pur- chaser from him with notice, or the means of it, the joint credi- tors would have been entitled to priority of satisfaction without aid from the special provisions in the articles. But even if his title as a shareholder had given him a several estate in the land, it would have given him no more than an undivided twentieth part of each tract, and no more could have been sold on a judgment against him by a separate creditor ; cer- tainly not the entire tract, as was done here. But the lands consti- tuted the stock, and, so far as Havens, or his alienees, with the means of notice, are concerned, they are to be treated as a com- modity, as well by the express provisions of the articles as by the implied conditions of the con- tract. By these, it was stipulated that the estate on hand should be sold at the expiration of the part- nership, and that the cash and se- curities, after payment of the debts, should be divided among the shareholders '■pro rata, ac- cording to their respective shares of the stock.' Now, what was the nature of the shares in the mean- time ? Havens did not own even a twentieth part of the land jointly or severally. In Allison v. Wil- son^ s Executors, 13 Serg. & Rawle, 330, and Morrow v. Brenizer, 2 Id. 188, it was ruled, that where a party is entitled merely to the pro- ceeds of land when sold, he has no estate in the realty which can be bound by a judgment, or sold on an execution against him. The present is a stronger case ; for so to interpret such a contract as to allow each member of the com- pany to have a specific interest in the lands which might be clogged by the liens or attachment of his separate creditors, would defeat the very end of the association. I grfint that a sale on a judgment against the company by a partner- ship creditor, would pass its lands, no matter whether as such or as chattels ; but by no device can a LAKE V. GIBSON, ■LAKE V. CRADDOCK. 313 separate creditor of a partner take any part of his share out of the capital stock and apply it to the satisfaction of his debt, or sell anything but his contingent share of the profits and stock at the set- tlement of the partnership account ; and, as that is personalty, it can- not be bound by a judgment. A glance at the facts of the case will show an attempt by the plaintiffs to do so at the expense of a party standing in the place of the company ; and it must not suc- ceed." A similar view was taken in Ludlow V. Cooper, 1 Ohio, N. S. 1, and the purchase of land by a firm, for the purpose of being resold on their joint account, held to render it personal property for the pur- poses of descent and distribution. There can be no doubt, that until the debts due by the firm, and the mutual claims of the partners, are satisfied, real estate may be treated by equity as if it were personal, but it does not follow, that this course should be pursued after the partnership equities are at an end, and when the question arises be- tween the heirs or devisees of the individual partners ; Ludlow V. Cooper ; Goodhurn v. Stevens, 1 Maryland, Ch. ; Pierce v. Trigg, 10 Leighj 406 ; Hale v. Plummer, 6 Indiana, 121. Most of the cases in this country, perhaps all, may be reconciled by the aid of this distinction, and of that which exists between the effect of the purchase of land as part- nership property, and of an ex- press or implied agreement, that it shall be viewed as a commodity, and sold for the benefit of the partnersliip. Thus, in Boherts v. M'Carty 9 Indiana, 16, the court spoke of the land as if it were a mere chattel interest, but the de- cision was limited to treating its true character of realty, as subor- dinate to the equities of the firm. It was held in Patterson v. Brewster 4 Edwards, Ch. 352, that the union of several persons in an association for the purchase and resale of land through a trus- tee, who gives his bond for the purchase-money, does not consti- tute a partnership, or render them answerable for the price. The decision was influenced by the doctrine of merger, and the true import of it seems to be that a purchase on the credit of a partner does not impose a liability on the firm. There can be little doubt that where an insolvent contractor has a right of action over against others for whom he acts, equity may give an immediate remedy against them although they are not legally answerable in conse- quence of the form of the obliga- tion. 314 RESULTING TRUST. [*203] *DYBR V. DYER. NOTEMBER 20, 21. AND 27, 1788. INTHE EXCHEQUER, BEFORE LORD CHIEF BA.RON EYRE, BARON HOTHAM, BARON THOMPSON. EEPOKTED 2 COX, 92.1 Purchase in the Name of a Son.' — ^Advancement.] — Copyhold granted to A. and B. his wife, and G. his younger son, to take in succession for their lives and the life of the survivor. The purchase- money was all paid by A. 0. is not a trustee of his life-interest for A.; but takes it beneficially as an advancement from his father. — Eesulting trust. In 1737, certain copyhold premises, holden of the manor of Hej'tesbury, in the county of Wilts, were granted by the lord, according to the euscom of that manor, to Simon Dyer (the plaintiff's father) and Mary his wife, and the defendant William his other son, to take in succession for their lives and to the longest liver of them. The purchase- money was paid by Simon Dyer, the father. He survived his wife, and lived until 1785, and then died, having made his will, and thei'eby devised all his interest in these copyhold premises (amongst others) to the plain- tiff", his younger son. The present bill stated these circumstances, and insisted that the whole purchase-money being paid by the father, although by the form of the grant, the wife and the defendant had the legal interest in the premises for their lives in succession, yet in a court of equity they were but trustees for the father, and the bill therefore prayed that the plaintiff", as devisee of the father, might be quieted in the possession of the premises during the life of the defendant. r*9n4i ^^& defendant insisted that the insertion of his name *in '- -' the grant operated as an advancement to him from his father to the extent of the legal interest thereby given to him. And this was the whole question in the cause. This case was very fully argued by Mr. Solicitor-General and Ainge, for the plaintiff; and by Burton and Morris, for the de- fendant. The following cases were cited, and very particularly commented on : — Smith v. Baker., 1 Atk. 885 ; Taylor v. Taylor, 1 Atk. 386 ; Muvima v. Mumrna, 2 Vern. 19 ; Howe v. Howe, 1 Vern. 415 ; Anon., 2 Freem. 123 ; Benger v. Drew, 1 P. Wms. 781 ; Dickenson v. Shaw, before the Lords Commissioners, in 1770 ; Bedwell v. Froome, before Sir T. Sewell, on the 10th of May, 1778 ; Row v. Bowden, before Sir L. Kenyon, sitting for the Lord Chancellor ; Crisp v. Pratt, Cro. Car. 549 ; Scroope v. Scroope, ' S. C, 1 Watk. Cop. 316. DYER V. DYER. 315 1 Ch. Ca. 27 ; Elliot v. Elliot, 2 Ch. Ca. 231 ; Ebrand v. Dancer, Ch. Ca. 26 ; Kingdon v. Bridges, 2 Vern. 67 ; Beck v. Andrew, 2 Vern. 120; Bundle v. Rvndle, 2 Yern. 264; Lamplugh v. Lamp- lugh, 1 1'. Wras. Ill ; Stileman v. Ashdown, 2 Atk. 477 ; Pofe v. Po^e, 1 Ves. 76. Lord Chief Baron Eyre, after directing the cause to stand over for a few days, delivered the judgment of the Court. The question between the parties in this cause is, whether the defendant is to be considered as a trustee for his father in respect of his succession to the legal interest of the copyhold premises in question, and whether the plaintiff, as I'epresentative of the father, is now entitled to the benefit of that trust. I intimated my opinion of the question on the hearing of the cause ; and I then indeed entertained very little doubt upon the rule of a court of equity, as applied to this subject ; but as so many cases have been cited, some of which are not in print, we thought it convenient to take an opportunity of looking more fvAly into them, in order that the ground of our decision may be put in as clear a light as possible, especially in a case in which so great a difierence of opinion seems to have prevailed at the bar. And I have met *with a case, in addition to those cited, which is that of r^nnr-, Rumboll V. Biimboll,' on the 20th of April, 1761. L ^^oj The clear result of all the cases without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or lease- hold ; whether taken in the names of the purchaser and others jointly, or in the names of others without that of the purchaser ; whether in one name or several ; whether jointly or successive, results to the man who advances the purchase-money. This is a general proposition, sup- ported by all the cases, and there is nothing to contradict it ; and it goes on a strict analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor. It is the established doctrine of a court of equity, that this resulting trust may be rebutted by circumstances in evidence. The cases go one step further, and prove that the circumstance of one or more of the nominees being a child, or children of the pur- chaser, is to operate by rebutting the resulting trust ; and it has been determined in so many cases, that the nominee, being a child, shall have such operation as a circumstance of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circum- stance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence. I think it would have been a more simple doctrine if the children had been considered as purchasers for a valuable consideration. Natural love and affection raised a use at common law. Surely, then, it will rebut a trust resulting to the father. This way of considering it would have shut out all the circumstances of evidence which have found their way into ' Since reported, 3 Eden, 15. 316 EESTJLTING TRUST. many of the cases, and would have prevented some very nice dis- tinctions, and not very easy to be understood. Considering it as a circumstance of evidence, there must be of coui'se evidence ad- mitted on the other side. Thus, it was resolved into a question of intent, which was getting into a very wide sea, without very certain guides. r*9nfi1- *^^ ^^® most simple case of all. which is that of a ^ J father purchasing in the name of his son, it is said .that this shows that the father intended an advancement ; and, there- fore, the resulting trust is rebutted ; but then a circumstance is added to this namely; that the son happened to be provided for. Then the question is, did the father intend to advance a son already provided for? Lord Nottingham' could not get over this ; and he ruled, that in such a case the resulting trust was not rebutted; and in Pole v. Pole, 1 Ves. 76, Lord Hardwieke thought so too ; and yet the rule, in a court of equity, as recog- nised in other cases, is, that the father is the only judge as to the quantum of a son's pi'ovision ; that distinction, therefore, of the son being provided for or not is not very solidly taken or uni- formly adhered to.^ It is then said, that a purchase in the name of a son is a primd facie advancement (and, indeed, it seems diffi- cult to put it in any other way). In some of the cases, some cir- cumstances have appeared which go pretty much against that presumption ; as where the father has entered and kept posses- sion and taken the rents, or where he has surrendered or de- vised the estate, or where the son has given receipts in the name of the father ; the answer given is, that the father took the rents as guardian of his son. Now, would the Court sustain a bill by the son against the father for these rents ? I should think it pretty difficult to succeed in such a bill. As to the surrender and devise, it is answered, that these are subsequent acts; whereas the intention of the father in taking the purchase in the son's name must be prove by concomitant acts ; yet these are pretty strong acts of ownership, and assert the right and coincide with the possession and enjoyment. As to the son's giving receipts in the name of the father, it is said that the son being under age, he could not give receipts in any other manner; but I own this reasoning does not satisfy me. In the more complicated cases, where the life of the son is one of the lives to take in succession, other distinctions ai-e taken. r*2071 ^^ *^® custom of the manor be, that *the first taker might L -J surrender the whole lease, that shall make the other lessees trustees for him ; but this custom operates on the legal estate, not on the equitable interest ; and therefore, this is not a very solid argument. When the lessees are to take successive, it is said, that, as the father cannot take the whole in his own name, ' Grey V. Grey, 2 Swanst. 600 ; S. C, Fiuoh, 343 ; and see KUiot v. Elliot, 2 Ch. Ca. 231 ; Lloyd v. Read, 1 P. Wms. 608. « See Redington v. Redington, 3 Ridg. 190; Sidmouth v. Sidmouth, 2 Beav. 456. DYER V. DYER. 317 but must insert other names in the lease, then the children shall be trustees for the father; and, to be sure, if the circumstance of a child being the nominee is not decisive the other way, there is a great deal of weight in this observation. There may be many prudential reasons for putting in the life of a child in preference to that of any other person ; and if that ease it is to be collected from circumstances whether an advancement was meant, it will be difficult to find such as will support that idea ; to be sure, taking the estate in the name of the child, which the father might have taken in his own, aftbrds a strong argument of such an intent ; but where the estate must necessarily be taken to lives in succession, the inference is very dilferent. These are diffi- culties which occur from considering the purchase in the son's name as a circumstance of evidence only, ifow, if it were once laid down that the son was to be taken as a purchaser for a valua- ble consideration, ail these matters of presumption would be avoided. It must be admitted, that the case of Dickenson v. Sham is a case very strong to support the present plaintiff's claim. That came on in Chancery on the 22nd of May, 1770. A copyhold was granted to three lives to take in succession, the father, son, and daughter; the father paid the fine; there was no custom stated ; the question was, whether the daughter and her hus- band were trustees during the life of the son, who survived the father. At the time of the purchase the son was nine, and the daughter seven years old. It appeared that the father bad leased the premises from three years to three years to the extent of nine years. On this case. Lords Commissioners Smythe and Aston were of opinion that, as the father had paid the purchase- money, the children were *trustees for him. To the note r*9no-| I have of this case it is added, that this determination L " -i was contrary to the general opinion of the bar, and also to a case of Taylor v. Alston in this court. In iJickenson v. Shaw there was some little evidence to assist the idea of its being a trust, namely, that of the leases made by the father ; if that made an ingredient in the determination, then that case is not quite in point to the present ; but I rather think that the meaning of the Court was, that the burthen of proof lay on the child ; and that the cases, which went the other way, were only those in which the estate was entirely purchased in the names of the children ; if so, they certainly were not quite correct in that idea, for there had been cases in which the estates had been taken in the names of the father and son. I have been favoured with a note of JRumboll V. Mumboll^ before Lord Keeper Henley on the 20th of April, 1761, where a copyhold Avas taken for three lives in suc- cession, the father and two sons ; the father paid the fine ; and the custom was, that the first taker might dispose of the whole estate (and his Lordship then stated that case fully). 'Sow this 2 Eden, 15. 318 RESULTING TKUST. case does not amount to more than an opinion of Lord Keeper Henley ; but he agreed with me in considering a child as a pur- chaser for good consideration of an estate bought by the father in his name, though a trust would result as against a stranger. It has been sui^posed that the case of Taylor v. Ahton in this court denied the authority of Dickenson v. Shaw. That cause was heard before Lord Chief Baron S my the, myself, and Mr. Baron Burland, and was the case of an uncle purchasing in the names of himself and a nephew and niece: it was decided in favour of the nephew and niece, not on any general idea of their taking as relations, but on the result of much parol evidence, which was admitted on both sides ; and the equity on the side of the nomi- nees was thought to preponderate. Lord Kenyon was in that cause, and his argument went solely on the weight of the parol evi- dence ; indeed, as far as the circumstances of the first taker's right r*2f)qi *° surrender, it was a strong case in favour of a *trust ; '- -' however, the Court determined the other way on the parol evidence ; that case, therefore, is not material. Another case has been mentioned, which is not in print, and which was thought to be materially applicable to this {Bedwell v. Froome, before Sir T. Sewell) ; but that was materially distinguishable from the present: as far as the general doctrine went, it went against the opinion of the Lords Commissioners. His Honor there held, that the copj-holds were part of the testator's personal estate, for that it was not a purchase in the name of the daughter ; she was not to have the legal estate ; it was only a contract to add the daughter's life in a new lease to be granted to the father himself; there could be no question about her being a trustee ; for it was as a freehold in him for his daughter's life ; but, in the course of the argument, his Honor stated the common principles as applied to the present case ; and ended by saying that, as between father and child, the natural presumption was that a provision was meant. The anonymous case in 2 Freem. 123, corresponds very much with the doctrine laid down by Sir T. Sewell : and it observes that an advancement to a child is con- sidered as done for valuable consideration, not only against the father, but against creditors. Kingdon v. Bridges is a strong case to this point : that is, the valuable nature of the consideration arising on a provision made for a wife or for a child ; for there the question arose as against creditors. I do not find that there are in print more than three cases which respect copyholds, where the grant is to take successive : Bundle v. Bundle, 2 Vern. 264, which was a case perfectly clear ; Benger v. Drev:, 1 P. Wms. 781, where the purchase was made partly with the wife's money ; and Smith v. Baker, 1 Atk. 3^5, where the general doctrine, as applied to strangers, was recog- nised ; but the case turned on the question, whether the interest was well devised. Therefore, as far as respects this particular case, Dickenson v. Shaw is the only case quite in point ; and then the question is, whether that case is to be abided by ? With DYER V. DYER. 319 great reverence to the memory of *those two judges who r^oini decided it, we think that case cannot be followed ; that '- ^ it has not stood the test of time or the opinion of learned men ; and Lord Kenyon has certainly intimated his opinion against it. On examination of its principles, they seem to rest on too narrow a foundation, namely, that the inference of a provision beino; in- tended did not arise, because the purchase could not have been taken, wholly in the name of the purchaser. This, we think, is not sufficient to turn the presumption against the child. If it is meant to be a trust, the purchaser must show that intention by a declaration of trust ; and we do not think it right to doubt whether an estate in succession is to be considered as an advance- ment when a moiety of an. estate in possession certainly would be so. If we were to enter into all the reasons that might possibly in- fluence the mind of the purchaser, many might perhaps occur in every case upon which it might be argued that an advancement was not intended ; and I own it is not a very prudent conduct of a man just married to tie up his property for one child, and pre- clude himself from providing for the rest of his family ; but this applies equally in case of a purchase in the name of the child only. Yet that case is admitted to be an advancement ; indeed, if anything, the latter case is rather the strongest, for there it must be confined to one child only. We think, therefore, that these reasons partake of too great a degree of refinement, and should not prevail against a rule of property which is so well established as to become a land-mark, and which, whether right or wrong, should be carried throughout. This bill must therefore be dismissed ; but, after stating that the only case in point on the subject is against our present opinion, it certainly will be proper to dismiss it without costs. Dyer v. Dyer is a leading case on the doctrine of resulting trusts upon purchases made in the names of strangers, but more especially on the very important exception to the doctrine where purchases *are made, not in the names of strangers, but of children or r^oi i-r persons equally favored. As to purchases made in the names of strangers, • the Lord Chief Baron Eyre in his judgment observes, " The clear result of all the cases, without a single exception, is, that the trust of a legal estate, whether freehold, copyhold, or leasehold ; whether taken in the names of the purchaser and others, jointly, or in the names of others without that of the purchaser ; whether in one name or several, whether jointly or successive, results to the man who advances the purchase-money . and it goes on a strict analogy to the rule of common law, that, where a feoffment is made without consideration, the use results to the feoffor." To illustrate this statement of the doctrine, suppose A. advances the 320 RESULTING TRUST. purchase-money of a freehold, copj'hold, or leasehold estate, and a con- veyance, surrender, or assignment of the legal interest in it is made either to B. or to B. and C, or to A., B., and C. jointly, or to A., B., and C- successively. In all these cases, if B. and C. are strangers, a trust will result in favor of A. That a trust results where the conveyance is taken in one name or several jointly, see Ex parte Houghton, 17 Ves. 253 ; Bide?' v. Kidder, 10 Ves. 367 ; or successive, see Howe v. Howe, 1 Vern. 415 ; Withers v. Withers, Amb. 151; Smith v. Baker, 1 Atk. 385 ; and a custom of a manor that a nominee should take beneficially will not hold good, as being unreasonable and contrary to the princi- ples of resulting trusts : Lewis v. Lane, 2 My. & K. 449, overruling Edwards v. Fidel, 3 Madd. 237 ; Jeans v. Cooke, 24 Beav. 513. The doctrine is applicable to personal as well as to real estate ; and a trust will result for the person advancing the consideration-money who takes a bond or a transfer of stock, or who purchases an annuity or any other thing of a personal nature in the name of a stranger : see Ebrand v. Dancer, 2 Ch. Oa. 26 ; Mortimer v. Davies, cited Bider v. Kidder, 10 Yes. 365, 366 ; Loyd v. Bead, 1 P. Wms. 607 ; Ex parte Houghton, 17 Ves. 253 ; Sidmouth v. Sidmouth, 2 Beav. 454. The doctrine of resulting trusts is applicable also to cases where two or more persons advance the purchase-money jointly. Lord Hardwicke, indeed, in Crop v. Norton, Barnard, C. Rep. 184, S. C, 9 Mod. 235, is said to have thought that it was confined to cases where the whole consideration moved from one person. However, in Wray v. Steele, 2 V. & B. 388, Sir Thomas Plumer, V. C, upon the general principle, de- cided that there was a resulting trust upon a joint advance, where the purchase was taken in the name of one. " Lord Hardwicke," observed r*9i o-| bis Honor, " could not have used the language ascribed *to him. What is there applicable to an advance by a single individual, that is not equally applicable to a joint advance under similar circum- stances?" See In re Thomas Byan, 3 I. R. Eq. 237. But no trust will result if the policy of an Act of Parliament would be thereby defeated. Thus, no trust will result in favour of a person advancing the purchase-money of a ship registered in the name of an- other ; for the register, according to the policy of the Registry Acts, is conclusive evidence of ownership, both at law and in equity. " The Registry Acts," says Lord Eldon^ " were drawn upon this policy ; that it is for the public interest to secure evidence of the title to a ship, from her origin to the moment in which you look back to her history ; how far throughout her existence she has been British built and British owned ; and it is obvious, that, if where the title arises by act of the parties, the doctrine of implied trust in this court is to be applied, the whole policy of these acts may be defeated :" Ex parte Yallop, 15 Ves. 68 ; see also Ex parte Houghton, 17 Ves. 251 ; Slater v. Willis, 1 Beav. 354. See and consider Armstrong v. Armstrong, 21 Beav. 71, 78. See DTER V. DYER. 321 the Merchant Shipping Act, 1854 (1*7 & 18 Vict. c. 101, amended by 25 & 26 Vict. c. 63), whereby, after enacting that not more than thirty-two individuals shall be entitled to be registered at the same time as owners of any one ship, it is provided, " but this rule shall not affect the bene- ficial title of any numbers of persons or of any company represented by or claiming under or through any registered owner or joint owner." Sect. 37 (2). Where, however, a person having no title to a ship procures it to be registered in his name, the Court of Chancery will compel him to re- transfer it to the rightful owner, and account for the earnings, even though there have been no fraud, and notwithstanding the Merchant Shipping Act, 1854 (I'l & 18 Vict. c. 104) : Holderness v. Lamport^ 29 Beav. 129. The principle upon which these cases proceed seems to have been lost sight of in the case of Field v. Lonsdale (13 Beav. 78). There a person having deposited moneys in his own name in a savings bank to the full extent allowed by Act of Parliament (9 Geo. 4, c. 92), made further deposits to an account in Ms own name " in trust for " his sister, but no notice of the investment was given to her. By the terms of the Act he retained a control over the whole fund. It was held by Lord Langdale, M. R., on the death of the depositor, that his sister was not entitled. " I think," said his Lordship, " that the only inten- tion was to evade the provisions of the Act of Parliament, and not to create a trust. The declaration is thei-efore ineffectual, and the claim must be dismissed." *A trust will not, it seems, result in favour of a person who has purchased an estate in the name of another in order to give '- -' him a vote in electing a member of Parliament : Groves v. Groves, 8 Y. & J. 163, 175. If the advance of the purchase-money by the real purchaser does not appear on the face of the deed, and even if it is stated to have been made by the nominal purchaser, parol evidence is admissible to prove by whom it was actually made. Thus, in Sir John Peachey's case, Rolls, E. T. 1759, MS., Sugd. V. & P. 910, 11th edit.. Sir Thomas Clarke, M. R., laid it down, that if A. sold an estate to C, and the con- sideration was expressed to be paid by B., and the conveyance made to B., the Court would allow parol evidence to prove the money paid by C. ; see also Ryall v. Byall, 1 Atk. 59 ; S. C, Amb. 413 ; Willis v. Willis, 2 Atk. 71 ; Bartlett v. Picker sgill, 1 Eden, 516 ; Lane v. Dighton, Amb. 409 ; Groves v. Groves, 3 Y. & J. 163. We may, there- fore, consider that these authorities overrule Kirk v. Webb, Prec. Ch. 84; Heron v. Heron, Prec. Ch. 163, and other older cases in which it was held that parol evidence could not be admitted to prove payment of purchase-money so as to raise a resulting trust, on the ground, that the admission of such evidence would be contrary to the Statute of VOL. I. — 21 322 RESULTING TRUST. Frauds : for the trust, which results to the person paying the purchase- money and taking a conveyance in the name of another, is a trust ' resulting by operation of law, and trusts of that nature are expressly excepted from the statute. See 29 Car. 2, c. 3, s. 8. Where the trust does not arise on the face of the deed itself, the parol evidence must prove the fact of the advance of the purchase- money very clearly: Newton v. Preston, Prec. Ch. 103 ; Oascoigne v.. Thwing, 1 Vern. 366 ; Willis v. Willis, 2 Atk. 71 ; Goodright Y.Hodges, 1 Watk. Cop. 229; Groves v. Groves, 8 Y. & J. 163. Lord Hard- wicke, however, in Willis v. Willis, 2 Atk. '72, thought that parol evi- dence might be admitted to- show the trust from the mean circumstances of the pretended owner of the real estate or inheritance, which made it impossible for him to be purchaser. See, also, Lench v. Lench, 10 Ves. 518 ; Heard v. Pilley, 4 L. R. Ch. App. 552. It is said by Mr. Sanders, in his Treatise on Uses and Trusts, Vol. I., p. 354, 5th edit., " that, after the death of the supposed nominal pur- chaser, parol proof can in no instance be admitted against the express declaration of the deed." The same opinion is expressed by another author. See Roberts on Frauds, 99, and Chalk v. Danvers, 1 Ch. Ca. 310. It does not, however, appear that the Statute of Frauds is violated ' by admitting parol proof of the advance of the * purchase-money ' -' after the death of the nominal purchaser, any more than it is by allowing such proof in his lifetime. See Lench v. Lench, 10 Ves. 511, 51T ; Sugd. V. & P. 910, 11th edit. If the nominal purchaser admits the payment of the purchase-money by the real purchaser, a trust will doubtless result : Ryall v. Eyall, 1 Atk. 58 ; Lane v. Dighton, Amb. 413 ; and even although he, by answer to a bill, denies such payment, parol evidence is, it appears, admissible in contradiction to it. See Gascoigne v. Thwing, 1 Vern. 366 ; New- ton V. Preston, Prec. Ch. 103 ; Bartlett v. Pickersgill, 1 Eden, 515, 516 ; Edwards v. Pike, 1 Eden, 26 T ; sed vide Skett v. Whitmore, 2 Freem. 280. But parol evidence has been held not admissible to prove a verbal agreement of an agent to purchase an estate for his principal, where the agent having purchased the estate for himself, with his own money, had, by his answer, denied the agreement. See Bartlett v. Pickersgill, 1 Eden, 515, where Lord Keeper Henley, clearly drawing the distinc- tion between the admission of evidence to prove the advance of pur- chase-money, where the trusts result by operation of the law, and are exempted from the Statute of Frauds, and the admission of parol evi- dence to prove an agreement, said, that to allow parol evidence in the latter case would be to overturn the statute. " The statute," observes his Lordship, " says that there shall be no trust of land unless by memorandum in writing, except such trusts as arise by operation of law. Where money is actually paid, there the trust arises from the DTEE V. DYER. 323 payment of the money, and not from any agreement of the parties. But this is not like the ease of money paid by one man, and the con- veyance taken in the name of another ; in that case, the bill charges that the estate was bought with the plaintiff's money. If the defendant says he borrowed it of the plaintiff, then the proof will be whether the money was lent or not ; if it was not lent, the plaintiff bought the land : but as here the trust depends on the agreement^ if I establish the one by parol, I establish the other also. . . . If the plaintiff had paid any part of the purchase-money^ it would have been ft reason for me to admit the evidence." The defendant in this case was afterwards convicted of perjury for having denied the trust ; but the record of the conviction was held not to be evidence of the agreement: Bartlett V. Pickersgill, 1 Eden, SlY ; see Chadwick v. Maden, 9 Hare, 188. In the recent case of Heard v. Pilley, 4 L. R. Ch. App. 548, doubts were thrown upon Bartlett v. Pickersgill, by Lords Justices Selwyn and Giffard, the latter of whom observes, '' that as regards *the .. case of Bartlett v. Pickersgill, it seems to be inconsistent with ^ -' all the authorities of the Court, which proceed on the footing that it will not allow the Statute of Frauds to be made an instrument of fraud." See Nicholson v. Mulligan^ 3 I. R. Eq. 308. Parol evidence is admissible to prove that a purchase has been made with trust-money ; and upon that being proved, a trust will result in favour of the cestui que trust, the real owner of the money. Thus, Sir William Grant, M. R., in Lench v. Lench, 10 Ves. 51*7, si^eaking of a purchase alleged to have been made with trust-money, says, " ^11 de- pends upon the proof of the facts ; for, whatever doubts may have been formerly entertained upon this subject, it is now settled that money may, in this manner, be followed into the land in which it is invested ; and a claim of this sort may be supported by parol evidence." See also Anon., Sel. Ch. Ca. 57 ; Byall v. Byall, 1 Atk. 59 ; S. C, Amb. 413 ; Lane v. Bighton, Amb. 409 ; Balgney v. Hamilton, cited Amb. 414 ; Hughes v. Wells, 9 Hare, 749 ; Harford v. Lloyd, 20 Beav. 310 ; Bridgman v. Gill, 24 Beav. 302 ; Birds v. Askey, 24 Beav. 618 ; Pen- nell V. Deffell, 4 De G. Mac. & G. 372 ; Trench v. Harrison, 17 Sim. Ill ; Wadham v. Bigg, 1 Drew. & Sm. 216 ; Williams v. Thomas, II . (V. C. K.) 417 ; Bolfe v. Gregory, 13 W. R. (L. C.) 355 ; Frith v. Cartland, 2 Hem. & Mill. 417 ; Hopper v. Conyers, 2 L. Rep. Eq. 549. No trust will result for a person who advances the purchase-money merely as a loan : Bartlett v. Picker sgill, 1 Eden, 516 ; Crop v. Norton, 9 Mod. 233, 235 ; Aveling v. Knipe, 19 Ves. 445. Resulting trusts, however, as they arise from equitable presumption, may be rebutted by parol evidence, shewing it was the intention of the person who advanced the purchase-money that the person to whom the property was transferred, either solely or jointly with such persor, should take for his own benefit {Goodright v. Hodges, 1 Watk. Cop. 324 RESULTING TRUST. 221 ; S. C, Lofft, 230 ; Bider v. Kidder, ] Ves. 364 ; Bundle v. Bundle, 2 Vern. 252 ; see Order, n. (1) lb. ; Bedington v. Bedington, 3 Ridg. P. C. 118 ; Deacoyi v. Golquhoun, 2 Drew. 21 ; Garrick v. Taylor, 29 Beav. T9, 10 W. R. (L. J.) 49 ; Wheeler v. Smith, 1 Giff. 300 ; Nichol- son V. Mulligan, 3 I. R. Eq. 308) ; and they may be rebutted as to part, and prevail as to the remainder. Thus, where a person has ad- vanced the purchase-money, and has taken a transfer of stock, or the conveyance of an estate in the name of a stranger, upon proof of the intention of the person advancing the money to confer upon the nominee a life interest in the stock or estate, the resulting trust will be rebutted as to the life interest, but will prevail *as to the remainder : Lane '- -^ V. Dighton, Amb. 409 ; Bider v. Kidder, 10 Ves. 368 ; Benhow y. Townsend, 1 My. & K. 501. But it seems that statements on the part of the person making the purchase, evidencing an intention to confer some undefined benefit not shown to be acted on, and a fortiori if they are inconsistent with the acts of enjoyment of the property, will not be sufficient to rebut a re- sulting trust: Nicholson v. Mulligan, 3 I. R. Eq. 308, 323. "Where, however, a person purchased stock in the names of four trustees, who already held stock under a marriage settlement upon trust for him and his wife successively for life, with remainder to their children, it was held that it must be presumed that he intended the stock so purchased to be held upon the trusts of the settlement ; In re Curteis' Trusts, 14 L. R. Eq. 211." Where there is an express trust declared, though but by parol, there can be no resulting trust ; for resulting trusts, though saved by the Statute of Frauds, are only saved and left as they were before the act ; and a bare declaration by parol, before the act, would prevent any re- sulting trust. See Bellasis v. Gompton, 2 Vern. 294. Where a person in order to defraud his creditors had transferred stock to a fictitious person, upon proof of the fact, a transfer was ordered to be made to the personal representatives of the transferor (Arthur v. Midland Bailway Go., 3 K. & J. 204) ; and in a case where a person had made a similar transfer with the same object, and after- wards became bankrupt, a re-transfer at the suit of his assignees was ordered to be made into his own name : Green v. The Bank of Eng- land, 3 Y. & C. 722. Advancement.^ — As to purchases made in the names of children, or of persons equally favoured, it may be laid down as a general rule that where a purchase is made by a parent in the name of a child, there will prima facie be no resulting trust for the parent, but on the contrary, a presumption arises that an advancement was intended. " I remember," saj'S Lord Eldon, "the case of Dyer v. i^j/er, which was very fully considered; and the Court meant to establish this principle, viz., ad- mitting the clear rule that, where A. purchases in the name of B., A. DYER V. DYER. 325 paying the consideration, B. is a trustee, notwithstanding the Statute of Frauds ; that rule does not obtain where the purchase is in the name of a son ; that purchase is an advancement prima facie ; and in this sense, that this principle of law and presumption is not to be frittered away by nice refinements. Therefore, if the purchase was of a fee simple immediately, prima facie the son would take ; so, if it was the purchase of a reversion ; and it is very difficult, upon the mere circum- stance of the proximity or possible remoteness of possession, to do that away. Nothing could be stronger than the circumstance in Dyer V. Dyer, that the purchaser had actually devised it. He certainly took it to be his own ; but he happened to mistake the rule ;" Finch v. Finch, 15 Ves. 50; see also *Franklin v. Franklin, 1 Swanst. 17, 18; Grey v. Grey, 2 Swanst. 591 ; 8. C, Finch, 340 ; Sidmouth v. ^ .^ Sidmouth, 2 Beav. 454; Christy v. Gourtenay, 13 Beav. 96; Williams V. Williams, 32 Beav. BtO ; Tucker v. Burrow, 2 Hem, &■ Mill. 515, 524 ; and see Keates v. Hewer, 13 W. R. (L. J.) 34, where, however, it was held that there was an express trust for the purchaser. The presumption may also arise in favour of any person in regard to whom the person advancing the money has placed himself in loco pa- rentis : thus in Beckford v. Beckford, Lofft, 490, an illegitimate son ; in Ehrand v. Dancer, 2 Ch. Ca. 26, a grandchild ; and in Currant v. Jago, 1 Coll. 261, the nephew of a wife, were held entitled to property purchased in their names, from the presumption of advancement being intended. But it has been held in a recent case that the mere fact that a grand- father has placed himself in loco parentis towards his illegitimate grand- son during the life of his father, will not of itself alone raise a presump- tion that a purchase in the name of such illegitimate grandson was intended for his advancement ; Tucker v. Burrow, 2 Hem. & Mill. 515 ; and see Forrest v. Forrest, 13 W. R. (V.-C. S.) 380. Tlie presumption also arises in favour of a wife : (Kingdon v. Bridges, 2 Vern. 67 ; Christ's Hospital v. Budgin, 2 Vern. 683 ; Back v. Andrew, 2 Vern. 120 ; Glaister v. Glaister, 8 Ves. 199 ; Bider v. Kidder, 10 Ves. 367 ; and Lorimer v. Lorimer, 10 Ves. 3L67, n. ; Low v. Carter, 1 Beav. 426 ; and see Gosling v. Gosling, 3 Drew, 335 ; Be Gadbury, 11 W. R. (V.-C. K.) 395 ; and where there is a purchase by a person in the joint names of himself and his wife and child : Devoy v. Devoy, 3 Sm. & Giff. 403. But the presumption does not arise when the purchaser makes the purchase in the names of himself and. a woman with whom he was co- habiting or with whom he had gone through the mere form of marriage, as in the case of a, marriage with a deceased wife's sister after the pass- ing of 5 & 6 Will. 4, c. 54 ; Soar v. Foster, 4 K. & J. 152. It seems tlie presumption of advancement will not arise from the mere purchase by a married woman out of her separate estate in the 826 RESULTING TRUST. names of her children, because a married woman is under no legal ob- ligation to provide for her children : Re De Visme, 2 De G. Jo. & Sm. IT. But it has been held upon proof of the intention to advance by a married woman making a purchase out of her separate estate in the name of her niece, that the latter was absolutely entitled to the prop- erty so purchased: Beecher v. Major, 2 Drew. & Sm. 431, 13 W. R. (L. C.) 1054. *A widowed mother is, it seems, a person standing in such a ■- -' relation to her child as to raise the presumption in favour of her child. See Say re v. Rughes, 5 L. R. Eq. 5T6 ; there Susannah Barling, widow, after making her will in favour of her two daughters, transferred East India Stock, which had stood in her own name, into the names of herself and her unmarried daughter, and died. It was held by Sir John Stuart, V. C, that there was a presumption of intended benefit to the unmarried daughter, which was unrebutted, and that the stock belonged absolutely to her. " It has been argued," said his Honor, " that a mother is not a person bound to make an advancement to her child, and that a widowed mother is not a person standing in such a relation to her child as to raise a presumption that in a transaction of this kind a benefit was intended for the child. But the case of a stranger who stands in loco parentis seems not so strong as that of a mother. In the case He De Visme (2 De G. Jo. & S. lY), it was said that a mother does not stand in such a relationship to a child as to raise a presumption of benefit for the child. The question in that case arose on a petition in lunacy, and it seems to have been taken for granted that no presumption of benefit arises in the case of a mother. But maternal affection, as a motive of bounty, is, perhaps, the strongest of all, although the duty is not so strong as in the case of a father, in- asmuch as it is the duty of a father to advance his child. That, how- ever, is a moral obligation and not a legal one. In Dyer v. Dyer, Eyre, 0. B., shewed that the relationship between parent and child is only a circumstance of evidence .... The word ' father ' does not occur in Lord Chief Baron Eyre's judgment, and it is not easy to understand why a mother should be presumed to be less disposed to benefit her child in a transaction of this kind than a father." Where a contract is entered into to purchase real property in the name of a wife or child, although the wife or child as volunteers could not file a Bill for specific performance of the contract, nevertheless if the vendor enforces, or is entitled to payment out of the husband's es- tate, the conveyance must be made to the wife or child. Redington v. Redington, 3 Ridg. P. C. 106 ; Skidmore v. Bradford, 8 L. R. Eq. 134 ; and see Drew v. Martin, 2 Hem. & Mill. 130. There an agreement for the purchase of land was entered into in the names of the husband and wife, and the husband died before the whole of the purchase-money was paid. Upon an inquiry in an administration suit as to the real DYER V. DYER. 327 property of the husband, it was held by Sir W. Page Wood, V.-C, that it did not include the purchased estate, *that the purchase enured for the benefit of the widow, and that the unpaid pur- '- -' chase-money was payable out of the husband's personal estate. But see now 30 & 31 Vict. c. 69. A binding contract to purchase in the joint names of a man and his wife, has been held to entitle the wife to the benefit of the purchase as survivor: thus in Vance v. Vance, 1 Beav. 605, A. B. gave directions to his bankers to invest a sum of money in tbe joint names of himself and his wife, and their brokers accordingly made the purchase. A. B. died after the contract, but before the transfer had been completed. It was held by Lord Langdale, M. R., that the wife was entitled to the stock by survivorship. See also Bailey v. Collett, 18 Beav. 181 ; Harrisons. Asher, 12 Jur. 834, 2 De G. & Sm. 436. The presumption of advancement also arises in the case of personal as well as of real property. As, for instance, where a person purchases stock, and causes it to be transferred into the name of his son or wife : Crabb v. Crabb, 1 My. & K. 511 ; Sidmouth v. Sidmouth, 2 BeaA^ 44*7 ; Lorimer v. Larimer, 10 Ves. S&l, n. ; Hepworth v. Hepworth, 11 L. R. Eq. 10. So, also, in Ebrand v. Dancer, 2 Ch. Ca. 26, a grandfather took bonds in the names of his infant grandchildren. The Lord Chan- cellor, considering that the grandfather was in loco parentis (the father being dead), said, " The grandchildren are in the immediate care of the grandfather ; and if he take bonds in their names, or make leases to them, it shall not be judged a trust, but a provision for the grandchil- dren, unless it be otherwise declared at the same time ;" and decreed accordingly on that reason, though there were other matters. Many circumstances of evidence have been taken into consideration by different equity Judges, as rebutting the presumption of advance, ment, which have given rise to many nice distinctions, not very easy to be understood ; most of them, however, are now disregarded. Thus, at one time, it was thought that the infancy of a child, in whose name a purchase was made, was a circumstance against its being considered an advancement ; it is now, however, considered a strong circumstance in favour of advancement being intended ; as in Lamplugh v. Lamplugh, 1 P. Wms. Ill, where a father made a purchase in the name of an infant eight years old, Lord Cowper held, that, " the son, being but eight years old, was unfit for a trustee, and must be intended to be named for his own benefit." See also Mumma v. Mumma, 2 Yern. 19; Finch v. Finch, 15 Ves. 43. And it is clear, that the argument against advancement being intended, from the circumstance of the property purchased by the parent being *reversionary, and therefore not rj^ggn-i a proper provision for the child, will not prevail, although it has formerly been entertained: Bumboll v. Rumboll 2 Eden, lY ; Finch V. Finch, 15 Ves. 43 ; Murless v. Franklin, 1 Swanst. 13 ; Wil- 328 RESULTING TRUST. Hams V. Williams, 32 Beav. 378 ; and see Pilsworth v. Mosse, 14 Ir. Ch. Rep. 103. The purchase by a parent in the joint names of himself and his son, has been objected to by Lord Hardwicke, as a weaker case for advance- ment than a purchase in the name of the son alone : Pole v. Pole, 1 Ves. "76 ; and in Stileman v. Ashdown, 2 Atk. 480, he said that it did not answer the purposes of advancement, as it entitled the father to the possession of the whole till a division, besides the father taking a chance to himself of being a survivor of the other moiety ; nay, if the son had died during his minority, the father would have been entitled to the whole, by virtue of the survivorship ; and the son could not have pre- vented it by severance, he being an infant. And, moreover, that the father might have other reasons for purchasing in joint-tenancy, namely, to pre- vent dower upon the estate, and other charges. It seems, however, clear, that, at the present day, the objections of Lord Hardwicke would have ( little or no weight ; for it has been repeatedly held , both in the old and modern cases, that a purchase by a parent in the joint names of him- self and his child, as well as a purchase in the joint names of the child and a stranger, will be held an advancement for the child to the extent of the interest vested in him. See Scroope v. Scroope, 1 Ch. Ca. 2Y ; Back V. Andrew, 2 Vern. 120; Grey v. Grey, 2 Swanst. 599-; Lamp- lugh V. Lamplugh, 1 P. Wms. Ill ; Crabb v. Crabb, 1 My. & K. 511 ; Fox V. Fox, 15 Ir. Ch. Rep. 89. A stranger, however, taking jointly with the child, must hold the estate vested in him in trust for the parent : Kingdon v. Bridges, 2 Vern. 6*7 ; Bumboll v. Bumboll, 1 Eden, lY. The principal case, overruling Shaw v. Dickenson, decides that a grant of copyholds, taken by a father in the names of himself and his sons, will be an advancement for the sons, although, accordii.g to the cus- tom of the manor, grants were made for lives successive. See Murless v. Franklin, ] Swanst. 13 ; Finch v. Finch, 15 Ves. 43 ; Skeats v. Skeats. 2 Y. & C. C. C. 9 ; Jeans v. Cooke, 24 Beav. 513, decided upon the authority of the principal case. Another circumstance, which has been considered as an objection against the presumption of advancement, is, that the child has been already fully advanced : in that case he may, it seems, be held a trus- tee for the father. See Flliot v. Elliot, 2 Ch. Ca. 231 ; Pole v. Pole, r*9911 ^ ^®^' '^^' ^^^2/ '^- Cr^^Vi 2 Swanst. 600 ; Loyd v. *Read, 1 P. '- -' Wms. 608 ; Bedington v. Bedington, 3 Ridg. P. C. 190. The observation, however, of the Lord Chief Baron, in the principal case, would, at the present day, probably be considered a sufficient an- swer to such an objection to the presumption of advancement. " The rule of equity," observes his Lordship, " as recognised in other cases, is, that the father is the only judge on the question of a son's pro- vision; and therefore the distinction of the son's being provided for I DYER V. DYER. 329 or not, is not very solidly taken." See Redington v. Bedington, 3 Ridg. P. C. 190. And in Sidmouth v. Sidmouth, 2 Beav. 456, where it was argued that, as the son was adult, he ought to be considered as provided for, and therefore a trustee for his father. Lord Langdale held that circumstance to be of no weight. " The circumstance," said his Lordship, " that the son was adult, does not appear to me to be mate- rial. It is said that no establishment was in contemplation, and that no necessity or occasion for advancing the son had occurred ; but, in the relation between parent and child, it does not appear to me that any observation of this kind can have any weight. The parent may judge for himself when it suits his own convenience, or when it will be best for liis son, to secure him any benefit which he voluntarily thinks fit to bestow upon him ; and it does not follow, that, because the reason for doing it is not known, there was no intention to advance at all." See also Hepworth v. Hepworth, 11 L. R. Eq. 10. If a child is advanced but in part no implication against advance- ment arises : Redington v. Redington, 3 Ridg. P. C. 106. And a child will not be considered as advanced who has only a reversionary estate : Lamplugh v. Lamp)lugh, 1 P. Wms. 111. Another circumstance is mentioned in the principal case, as going against the presumption of advancement, viz., the father's entering into, and keeping possession, and taking the rents and profits of the pur- chased property, or the son's giving receipts in the name of the father : in such case, if th^ son is an infant, the presumption of adA^ancement will not be rebutted, as the acts of the father, it is said, may be refer- able to his duty as guardian of his son, and not to an assumption of ownership : Loyd v. Read, 1 P. Wms. 608 ; Mumma v. Munima, 2 Vern. 19 ; Alleyne v. Alleyne, 2 J. & L. 544 ; Lamplugh v. Lamplugh, 1 P. Wms. Ill ; Stileman v. Ashdown, 2 Atk. 480 ; Taylor v. Taylor, 1 Atk. 386; George?» case, cited 2 Swanst. 600 ; and see Devoy v. Devoy, 3 Sm. & Gifi-. 403 ; Fox v. Fox, 15 Ir. Ch. Rep. 89. The Lord Chief Baron, however, in the principal case, expresses himself dissatisfied with *the reasoning which refers those acts i-^^nQn-i of the father to his guardianship ; and in Grey v. Grey, 2 Swanst. 600, Lord Nottingham observed, that " plainly, the reason of the resolution stands not upon the guardianship, but upon the pre- sumptive advancement." Even where the son is adult, it seems that similar acts of ownership by the father will not prevent the presumption of advancement from arising, especially where the son is advanced hut in part. A leading authority on this subject is Grey v. Grey, 2 Swanst. 299 ; S. C, Finch, 338. In that case the father received the profits of the estate purchased in the name of his son for twenty years, made leases, took fines, inclosed part of the estate in a park, built much, and provided materials for more buildings, gave directions for a settlement, and treated for a sale 330 RESULTING TRUST. of the estate, yet, after all this, it was decided by Lord Nottingham, after much consideration, that the purchase by the father in the son's name was an advancement. " In all cases whatsoever," said his Lord- ship, " where a trust shall be between fatlier and son contrary to the consideration and operation of law, the same ought to appear upon very plain, and coherent, and binding evidence, and not by any argument or inference from the father's continuing in possession and receiving the profits, which sometimes the son may not in good manners contradict, especially where he is advanced but in part ; and if such inference shall not be made from the father's perception of profits, it shall never be made from any words between them in common discourse ; for, in those, there may be great variety and sometimes apparent contradiction. Therefore, where the proof is not clear and manifest, the Court ought to follow the law, and it is very safe so to do :" Finch, 340 ; see, how- ever, Murless v. Franklin, 1 Swanst. lYl. Upon the same principle, in Sidmouth v. Sidmouth, 2 Beav. 447, where moneys were invested in the funds by a father in the name of the son, the dividends of which were received by the father during his life, under a power of attorney from his son, it was held, after his death, that this was an advancement, and that the funds belonged to the son. Where, however, a son is fully advanced, the father's entering into possession, and into the receipt of the rents or profits of property pur- chased in his son's name, may be considered as evidence of a trust. See Grey v. Grey, 2 Swanst. 600. ^ It seems, however, that where e'\'idence contemporaneous with the transaction shows that the father had an intention of reserving a life interest in the property to himself, or that he had an intention of quali- fying the absolute right purported to be given to his son, the presump- r*99Q-i tion of advancement will be rebutted : *Dumper v. Dumper, 3 '- -' Giflr. 583 ; Down v. Ellis, 35 Beav. 5T8. The presumption of advancement may be rebutted bj' evidence of facts showing the father's intention that the son should take property, purchased in his name, as a trustee, and not for his own benefit. Such facts, however, must have taken place antecedently to, or contempora- neously with, the purchase, or else immediately after it, so as to form, in fact, part of the same transaction {Grey v. Grey, 2 Swanst. 594; Bedington v. Redington, 3 Ridg. P. C. 106, 17*7, 194; Murless v. Franklin, 1 Swanst. 11, 19; Sidmouth v. Sidmouth, 2 Beav. 447; Scawin v. Scawin, 1 Y. & C. C. C. 65 ; Prankerd v. Prankerd, 1 S. & S. 1 ; Christy v. Gourtenay, 13 Beav. 26 ; Gollinson v. Gollinson, 3 De G. Mac. & G. 409 ; Bone v. Pollard, 24 Beav. 283 ; Ghilders v. Childers, 1 De G. & Jo. 482) ; but subsequent facts will not be admis- sible in evidence to show the intention of the father against the pre- sumption of advancement. Thus, a devise of the property, as in the principal case {Mumma v. Mumma, 2 Vern. 19 ; Grabb v. Grabb, 1 My. DYER V. DYBK. 331 & K. 511 ; Skeais v. Skeats, 2 Y. & C. C. C. 9 ; Jeans v. Cooke, 24 Beav. 513 ; Bumper v. Bumper, 3 Giff. 583 ; Williavis v. Williams, 32 Beav. 310), or a mortgage (Back v. Andrew, 2 Vern. 110), or a demise of copyholds by a licence obtained subsequently to tbe purchase in the name of the child (Murless v. Franklin, 1 Swanst. 13), will be inef- fectual : secus, where the licence to lease is obtained, or a surrender to the use of a will is made at the same Court as the grant : Swift v. Bavis, 8 East, 354, n. ; Prankerd y. Prankerd, 1 S. & S. 1. The presumption of advancement may also be rebutted by evidence of parol declarations of the father contemporaneous with, but not by any of his declarations made subsequent to, the purchase : Elliot v. Mliot, 2 Ch. Ca. 231 ; Woodman v. Morrell, 2 Freem. 33 ; Birch v. Blagrave, Amb. 266 ; Finch v. Finch, 15 Yes. 51 ; Bedington v. Red-, ington, 3 Ridg. P. C. 106 ; Sidmouth v. Sidmouth, 2 Beav. 456. But where a person had transferred stock into, the joint names of himself, wife, and child, and had regularly received the dividends, Sir J. Stuart, Y.-C, some years after the transfer, received the evidence of the husband and wife as to his intention at the time of the transfer, in order to repel the presumption of advancement : Bevoy v. Bevoy, 3 Sm. & Giff. 403 ; Forrest v. Forrest, 13 W. R. (Y.-C. S.) 380 ; see also Stone v. Stone, 3 Jur. N. S. WS. A fortiori, parol evidence may be given by the son to show the inten- tion of the father to advance him ; for such evidence is in support both of the legal interest of the son and of the equitable presumption : Lamplugh v. Lamplugh, *1 P. Wms. 113 ; Bedington v. Bed- ington, 3 Ridg. P: C. 182, 195 ; Taylor v. Taylor, 1 Atk. 386. L 2^*] The acts and declarations of the father subsequent to the purchase may be used in evidence against him by the son, although they could not, as we have before seen, be used by the father against the son : (Bedington v. Bedington, 3 Ridg. P. C. 195, 19T ; Sidmouth v. Sid- mouth, 2 Beav. 455 ;) and the better opinion seems to be, that the sub- sequent acts and declarations of the son can be used against him by the father where there is nothing showing the intention of the father, at the time of the purchase, sufficient to counteract the effect of those declarations : Sidmouth v. Sidmouth, 2 Beav. 455 ; Scawin v. Scawin, I Y. & C. C. 0. 65; Pole v. Pole, 1 Yes. 16 ; Jeans v. Cooke, 24 Beav. 521 ; see, however, Murless v. Franklin, 1 Swanst. 20. Evidence, however, it seems, will not be admissible to rebut the pre- sumption of advancement where the object of the evidence is to show that the person who made the transfer intended it to take effect in fraud of the law. See Childers v. Ghilders, 3 K. & J. 310 ; there a father con- veyed by registered deed 900 acres of land in the Bedford Level to his son, in order to malte him eligible as a bailiff. The son shortly after- wards died, without being aware of the conveyance, and without having been elected bailiff. It was held by Sir W. Page Wood, Y.-C, that the 3B2 RESULTING TRUST. i gift was irrevocable, and that the heir of the son was entitled to it for his own benefit. " I cannot," said his Honor, " allow the plaintiff to say, ' I intended this deed to operate in fraud of the law.' " Upon the discovery of fresh evidence in this ease — a letter to the Registrar of the Level' — the order of the Vice-Chancellor was discharged, and leave was given to amend the bill. Whereupon it was held by the Lords Justices, upon the evidence, that neither the father nor tlie Registrar intended or considered the transaction to have the effect of making the son beneficial owner ; that, moreover, on the construction of the Bedford Level Act, a dry legal estate was a sufficient qualification. And that, therfeore, as there was nothing illegal in the father's design, and no intention to represent the son as beneficial owner, the father was enti- tled on the ground of trust or mistake or both to have a reconvey- ance from the heir of the son. See Ghilders v. Childers, 1 De G. & Jo. 482. In May v. May, 33 Beav. 81, a conveyance of property by a father to his son to give him a qualification to vote was held not in- valid but a bounty. In Bavies v. Otty, 35 Beav. 208, the plaintiff, be- lieving that his wife, who had deserted him ten years previously, was dead, married a second time, and having afterwards heard that his first wife was living, and *thinking that he was liable to be con. '- -^ victed for bigamy, absolutely conveyed his real estate to the defendant in consideration of 20L It was proved by parol evidence that the deed was executed in pursuance of an arrangement that the defendant should hold the property at the disposal of the plaintifi!, The plaintifi^'s alarm was groundless ; the consideration was never paid. The plaintifi' remained in possession, and paid certain sums due to a building society in respect of the property. The defendant denied the trust, and claimed the benefit of the Statute of Frauds. It was held by Sir John Romilly, M. R., that " the operation of the Statute of Frauds was excluded by the fraud of the defendant in refusing to reconvey. And also by reason of a resulting trust within the 8th section of the Statute, his Honor said he was clearl}^ of opinion that there was no illegality in the transaction, and that the plaintifi' was quite justified, morally and legally, in marrying the second wife, although the effect of it may have been, that she did not become his wife: The long absence of his first wife was suflflcient to justify the plaintifi' in coming to the conclusion that she was dead." See also Manning v. Gill, 13 L. R. Eq. 485 ; Haigh v. Kaye, 1 L. R. Ch. App. 469. As to the presumption of advancement of a wife being rebutted on a purchase by a husband of stock in the joint names of himself and his wife, see Smith v. Warde, 15 Sim. 56, and Hoyes v. Kimbersley, 2 Sm. & Gifi'. 195. Where part of the money invested in stock by a husband in the name of himself and his wife is sold out by them, it becomes his property. DYER V. DYER. 333 Tlius, in Be Gadbury, 11 W. R. (Y.-C. K.) 895, a sum of money was in- vested in the funds in the joint names of a husband and wife, and she, by power of attorney from him, sold out a portion, and with his knowledge kept it locked up in her own special custody until his death. It was held by Sir R. T. Kindersley, Y.-C, that the portion which remained in the funds in the joint names of the husband and wife survived to the wife, but that the other portion, which was sold out by her and kept in her custody, formed, on the husband's death, a part of his general per- sonal estate. In the case of an advancement, where part of the purchase-money re- mains unpaid, it will be a debt payable by the assets of the father : Eedington v. Bedington, 3 Ridg. P. C. 106, 201. Where an advancement is made by a person largely indebted at the time, it will be void under the 13 Eliz. c. 5, as against his creditors : (Christy v. Courtenay, 13 Beav. 96, 101 ; Barrack v. M'Culloch, 3 K. & J. 110 ; sed vide Drew v. Martin, 2 Hem. & Mill. 133), but *it is not within 27 Eliz. c. 4 : Drew v. Martin, 2 Hem. & Mill. C''226] 130, 133. And where the relation of client and solicitor subsists between the parent and child, the ordinary presumption in favour of the transaction being a gift, will be excluded, and the burden of proof, as to its validity, will be thrown upon the son acting as solicitor : Oarrett v. Wilkinson, 2 De G. & Sm. 244. Where a father transfers shares in an incorporated company to his infant son, although the son might claim the shares as an advancement, nevertheless the Court will, on the part of the infant, repudiate the shares, if the company be wound up, and the father will be a contribu- tory (Beid's Case, 24 Beav. 318) ; but where the father has applied for shares in the name of his son, and although he has paid a deposit, if the. company have refused to allow him to execute the deed on behalf of his son, he will not be a contributory : MaxwelVs Case, 24 Beav. 321. It is well settled in this conn- where it is made through the try, as it is in England, that nominal grantee as his agent : if a person purchases an estate such trusts are not within the with his own money, and the deed statute of frauds, and may be es- is taken in the name of another, tablished by parol, notwithstand- the trust of the land results, by ing the deed acknowledges the presumption or implication of law, consideration to have been paid and without any agreement, to him by the nominal grantee ; Jackson who advances the money; and the v. Sternbergh, 1 Johnson's Cases, case is the same where the con- 153, 155 ; S. C, 1 Johnson, 45, n. ; tract of purchase is made by the Foote v. Colvin, 3 Id. 216, 221 ; cestui que trust personally, and Jackson v. Matsdorf, 11 Id. 91, 334 RESTTLTING TRUST. 96 ; Jackson v. Mills^ 13 Id. 463 ; Jackson v. Seelye, 16 Id. 107, 199 ; Forsyth t. Clark, 3 Wendell, 638, 650; Guthrie v. Gardner, I'd Id. 414 ; Boyd v. McLean, 1 John- son's Chancery, 582, 586 ; Bots- ford V. Burr, 2 Id. 405, 409; White Y. Carpenter, 2 Paige, 218, 238; Kellogg v. Wood, 4 Id. 519, 580 ; Partridge v. Havens, 10 Id. 618, 626 ; Lowersbury v. Purdy, 16 Barbour, 376 ; Farunger v. Ramsay, 2 Maryland, 365; MZ- Ziams v. Brown, 14 Illinois, 200 Nichols T. Thornton, 16 Id. 113 Gass V. (?oss, 1 Hieshell, 113 Lloyd V. Carter, 5 Harris, 216 Cwrd "V. r/ie Lancaster Bank. Ohio State R. 1 ; Williams v. Van Tuyl, 2 Ohio, N. S. 336 Barron v. Barron, 24 Vermont, 3T5 ; Peabody v. Tarbill, 2 Gush- ing, 236 ; Lynch v. Coa;, 11 Id. 265; Caple v. 31' Galium, 21 Ala- bamaj 461 ; Beck v. Graybill, 4 Casey, 66 ; Eisler v. Kisler, 2 Watts, 323, 324; Jackman v. Ringland, 4 Watts & Sergeant, 149, 150; Page y. Pafire, 8 New Hampshire, 187, 195 ; Buck v. P*e, 2 Fairfield, 9, 23 ; Baker v. Vining, 80 Maine, 121, 125; -Dor- se?/ ei al. V. Clarke et al., 4 Harris & Johnson, 551, 556; Neale v. Eagthrop, 3 Bland, 551, 584; Perry et al. v. IZead ei aZ., 1 Mar- shall, 46, 47 ; Chapline's Adm'r V. M'Afee, &c., 3 J. J. Marshall, 513, 515; Letcher v. Letcher's Heirs, 4 Id. 590, 592 ; Jenison V. Graves, 2 Blackford, 441, 447 ; Elliott V. Armstrong, Id. 199, 207 ; Runnels v. Jackson, 1 Howard's Mississippi, 358 ; Poivell v. Powell, 1 Freeman, 134 ; Talliaferro v. T/),e fieiVs o/ Talliaferro, 6 Ala- bama, 404, 406 ; Anderson c6 Bro's V. Jones e« aZ., 10 Id. 401, 420 ; Caple y. M' Galium, 21 Id. 461; Smitheal v. Gray, 1 Humphreys, 491, 496 ; Ensley et als. v. Balen- tine et als., 4 Id. 233, 234 ; Thomas V. Walker, 6 Id. 93, 95 ; Peabody & Another v. Tarbill, 2 Gushing, 227, 232 ; Long v. Steiger, Texas, 460 ; Shepherd v. TFMe, 10 Id. 72. " The substance of the cases on this subject," said the court in Newells v. Morgan et al., 2 Har- rington, 225, 230, in the language of the principal case, " appears to be, that the trust of a legal estate, whether freehold, copyhold, or leasehold ; whether taken in the names of the purchasers and others jointly, or in the name of others without that of the pur- chaser; whether in one name or several ; whether jointly or suc- cessively, results to the man who advances the purchase-money ; and this in analogy to the rule of the common law, that where a feoffment is made without consideration, the use results to the feoffor." The trust will revert to the source and origin of the consideration, what- ever may be its character or na- ture ; and hence land set off or taken in payment of a judgment, held in trust for another, will be- long in equity to the latter, and not to the person by whom the judgment is recovered, or who ap- pears on the record as its owner ; Peabody v. Tarbill, 2 Gushing, 236. A trust arises o fortiori where a trustee or guardian takes a conveyance in his own name, and gives the assets of the estate DYER V. DYER. 335 in payment, because there is, un- der these circumstances, a breach of confidence beside the principle that the right of property, should result to the source of the con- sideration ; Blauvelt v. Ackerman, 5 C. E. Green, 141 ; Burling v. Earmar, lb. 220 ; Snell v. Elam, 2 Heiskell, 82. But there is this difference, that the cestui que trusts may, under these circumstances, elect whether they will take the land, or charge the trustee with the sum wrongfully diverted from the proper channel. It may be considered also as settled in this country, that a re- sulting trust may be established upon parol evidence against the answer of the grantee denying the trust ; but the evidence must be full, clear, and satisfactory ; Boyd V. M'Lean, 1 Johnson's Chancery, 582, 586 ; JElliott v. Armstrong, 2 Blackford, 199, 209 ; Jenison v. Graves, Id. 441, 447 ; Blair v. Bass, 4 Id. 540, 545 ; Snelling v. Utterback, &c., 1 Bibb, 609, 610 ; Larkins v. Rhodes, 5 Porter, 196, 201 ; Enos et al. v. Hunter, 4 Gil- man, 211,' 218 ; Smith et al. v. Sackett et al., 5 Gilman, 544 ; Page v. Page, 8 New Hampshire, 18*7, 195; Buck v. Pike, 2 Fairfield, 9, 24 ; Baker v. Vining, 30 Maine, 121, 126; M' Cannon v. Pettitt, 3 Sneed, 242. There is no doubt, also, that, here, such a trust may be set up after the death of the nominal purchaser: see Freeman V. Kelly, 1 HoflFman, 90, 98. A re- sulting trust may be established upon the parol declarations or ac- knowledgments of the person in whose name the conveyance is taken, that another paid the pur- chase-money, which will be evi- dence against himself, and against those claiming under him by de- scent, or otherwise than as bona fide purchasers for value ; and though such evidence is admitted to be most unsatisfactory, on ac- count of the facility with which it may be fabricated, and the impos- sibility of contradicting it, and the total alteration of the effect which the slightest mistake or failure of recollection may cause, yet, under strict caution, it is competent ground for a decree, and if plain and consistent, and especially if corroborated by circumstances, may be sufficient ; Malin v. Malin, 1 Wendell, 626, 648, 649,652,653; Harder v. Harder, 2 Sandford, 17, 21, 22 ; and see Smith v. Burn- ham, 3 Sumner, 435, 438. See Botsford v. Burr, 2 Johnson's Chancery, 405, 411, 412; Snelling V. Utterback, &c., 1 Bibb, 609, 611. The doctrine of resulting trusts from payment of the purchase- money is admitted to be a very questionable one, and is acted upon, only with great caution, and the circumstances from which such a trust is to be raised, must be clearly proved ; Faringger v. Bam- say, 4 Maryland Ch. 33 ; espec- ially if much time has elapsed ; Botsford V. Burr, 409, 415 ; Free- man V. Kelly, 1 Hoffman, 90, 93, 98 ; Jackson v. Moore, 6 Cowen, 706, 726 ; Jackson v. Bateman, 2 Wendell, 570, 573 ; Carey v. Cal- lan's Fx'r, &c., 6 B. Monroe, 44, 45 ; Baker v. Vining, 30 Maine, 121 , 126. In Strimpfler v. Roberts, 6 Harris, 283, the lapse of fifty- 336 RESULTING TRUST. one years was held to be a bar; and the opinion expressed by the court that the same result ought to follow, in every case where the claimant lies by during the period fixed by the Statute of Limitations as a bar to the assertion of a title to land by ejectment, unless there are circumstances which explain and excuse his inaction, has been adopted and confirmed in the sub- sequent course of decisions : Lan- gelfelter v. Bichey, 8 P. F. Smith, 128; Collier Y. CoZZt'er, 30 Indiana, 32. It has been said that the evidence must not only be distinct and credi- ble, but preponderate, and that if it does not, the presumption is in favor of the party who has the deed ; Johnson v. Quarles, 46 Mis- souri, 423 ; Nixon's Appeal, 13 P. P. Smith, 219, and the case of Faringger y. Ramsay, 2 Maryland, 865 ; would seem to show, that the payment must be proved explicitly, and not be a mere inference or deduction from the facts and cir- cumstances. The whole foundation of a re- sulting trust of this nature, is the payment of the money by the ces- tui que trust, or by the trustee, with funds which are, in equity, the lunds of the cestui que trust ; Russell V. Allen, 10 Paige, 249 ; The Sarrisburg Bank v. Tyler, 3 W. & S. 313 ; Kirkpatrick v. M'Donald, I Jones, 393 ; Smith v. Burnham, 3 Sumner, 435. A parol agreement that another shall be in- terested in the purchase of lands, or a parol declaration by the pur- chaser that he buys for another, without an advance of money by that other, comes directly within the provisions of the Statute of Prauds, and cannot give birth to a resulting trust, nor in the absence of fraud to a trust of any other description : Irwin v. Ivers, 1 Indiana, 308. An allegation that a purchaser at a sheriff's sale agreed orally to hold the premises for the benefit of the defendant in the execution, will not therefore render him a trustee, unless sus- tained by evidence in writing, and signed by the party to be charged, Mincot V. Mitchell, 30 Indiana, 228; Kisler v. Eisler, 2 Watts, 323. If a person takes a convey- ance of lands in his own name, and pays for them with his own money, parol evidence that he was employed to do this as agent for another, whatever other equity it may raise, will not create a re- sulting trust of the land by implication of law ; ' Barnet v. ' The exception which withdraws trusts arising by implication or con- struction of l;iw, from the operation of the statute, extends far enough to embrace every trust growing out of a breach of duty aside from contract. Seiclirisl's Appeal, 16 P. F. Smith, 237, 241. Thus, a purchase by an ex- ecute , trustee, or agent, in fraud of his ofSce, or of the confidence reposed by the principal, will give rise to a trust, whether (as the better opinion would seem to be) the transaction is proved by the testimony of witnesses or by written evidence, ante, 221 ; for, under these circumstances, the trust is deduced from the res gestee, which may always be proved by oral testi- mony, because, from the nature of things, they can seldom be establislied iu any other way. And it is, perhaps, hardly too much to say, that wherever DTBR V. DYER, 337 Dougherty, 8 Casey, 212 ; and therefore, if the party who sets up a resulting trust, made no payment, he cannot show by parol proof that the purchase was made for his benefit, or on his account ; Bots- ford V. Burr ; Freeman v. Kelly ; Laihrop v. Hoyt, *l Barbour's S. C. 60, 63 ; Smith v. Burnham, 3 Sum- ner, 435, 462; Pinnocky. Clough, 16 Vermont, 501, 506, 509 ; Dor- sey et al. v. Clarke et al., 4 Harris & Johnson, 551, 551 ; Fischli v. Dumaresly, 3 Marshall, 23 ; Thompson v. Branch, Meigs, 390, 394 ; Ensley et als. v. Balentine et als., 4 Humphreys, 233, 235 ; Peebles v. Beading, 8 Sergeant & Rawle, 484, 492 ; Lynn v. Lynn et al, 5 Oilman, 602, 620 ; or, as it has been frequently declared, un- less there is something more in one obtains or withholds Ian 1 in fraud of another, equity will decree a trust, the statute being meant to suppress, and not to encourage fraud ; Jenkins V. Eldridge, 3 Story, 181, 291 ; Morey V. Herrick, 6 Harris, 125, 128; Brown T. Dyainger, 1 Rawle, 408 ; Hoge v. Eoge, Id. 163, 214. See Lingelfelter v. Eichey, 8 P. P. Smith, 41f) ; BeiohriKt's Appeal, 16 Id. 237 ; F^'ust v. Haas, 23 Id. 235 ; 2 Story's Equity Jurispru- dence, (iS ; Hill on Trustees, 91 ; post, notes to Woollam v. Hearn, vol. 2. Trusts thus deduced from facts and circumstances, or from the relation which the parties bear to each other, aie more accurately described as con- structive trusts than as trusts by opera- tion of law ; Hill on Trustees, 144 ; although the latter name has also been applied to them by judges of great au- thority ; Church v. Sterling, 16 Conn. 388, 401. In either aspect, they are independent of agreement, and may be established by pai ol evidence. YOL. I 22 the transaction than is implied from the violation of a parol agreement, there is no resulting trust ; see Jackman v. Bingland, 4 Watts & Sergeant, 149, 150; Smith v. Smith, 3 Casey, 180 ;. Sharp V. Long, 4 Id. 434 ; Green Y. Drummond, 31 Maryland, Yl ; Walker Y. Brenagerd, 13 Smedes & Marshall, 123, 165, where the cases are collected ; and see Sample v. Coulson, 9 Watts & Sergeant, 62, 66. Payment or advance of the purchase-money before, or at the time of the purchase, is indispen- sable ; a subsequent paj'ment will not, by relation, attach a trust to the original purchase ; Nixon's Ap- peal, 13 P. F. Smith, 219 ; because the trust arises out of the circum- stance that the money of the real, and not of the nominal purchaser, formed, at the time, the considera- tion of the purchase, and became converted into land ; Botsford v. Burr ; Steere y. Steere, 5 John- son's Chancery, 1, 19, 20 ; Jackson Y. Moore, 6 Cowen, 106, 126 ; Freeman v. Kelly, 1 Hoffman, 90, 93 ; White v. Carpenter, 2 Paige, 218, 238; Pennock v. Clough, 16 Yermont, 501, 506; Page v. Page, 8 New Hampshire, 181, 196; Buck V. Pike, 2 Fairfield 9, 24; Conner Y. Lewis, 16 Maine, 268, 214; Graves v. Dugan, 6 Dana, 331, 332; Foster v. The Trustees of the Athenaeum, 3 Alabama, 302, 309 ; Wallaces v. Marshall, &c., 9 B. Monroe, 148, 155; Gee v. Gee, 2 Sneed, 395. "The trust, said Chancellor Kent, in Botsford v. Burr, 2 Johnson's Chancery, 405, 414, 415, "must have been coeval with the deeds, or it cannot exist 338 RESULTING TRUST. at all. After a party has made a purchase with his own moneys or credit, a subsequent tender, or even re-imbursement, may be evidence of some other contract, or the ground of some other relief, but it cannot, by any retrospective effect, produce the trust of which we are speaking. There never was an in- stance of such a trust so created, and there never ought to be, for it would destroy all the certainty and security of conveyances of real estate. The resulting trust, not within the Statute of Frauds, and which may be shown without writing, is when the purchase is made with the proper moneys of the cestui que trust, and the deed not taken in his name. The trust results from the original transac- tion, at the time it takes place, and at no other time, and it is founded on the actual payment of money, and on no other ground. It can- not be mingled or confounded with any subsequent dealings whatever. Thej^ are governed by different principles, and the doc- trine of a resulting trust would be mischievous and dangerous, if we once departed from the simplicity of this rule." See Latham v. Hen- derson, 47 Illinois, 185. "After the legal title has once passed to the grantee by deed," said another Chancellor, in Rogers v. Murray, 3 Paige, 390, 398, " it is impossible to raise a resulting trust so as to divest that legal estate, by the subsequent application of the funds of a third person to the im- provement of the property, or to satisfy the unpaid purchase-money, The resulting trust must arise, if at all, at the time of the execution of the conveyance." Accordingly, it has been held that if one of two partners buys in his own name, and gives his own bond and mort- gage, and afterwards pays out of partnership funds, a resulting trust will not thereby be created, unless it be unequivocally shown that there ^yas an agreement at the time of the purchase that the funds should be so appropriated ; For- syth V. Clarke, 3 Wendell, 638, 651. [Where, however, two persons make a joint purchase and one pays at the time, a subsequent pay- ment bj' the other in pursuance of the original agreement, may relate back to the execution of the deed and give rise to a resulting trust ; Nixon's Appeal, 13 P. F. Smith, 279, 282. A note or other se- curity given by a third party for, and paid afterwards out of the funds of the cestui que trust, may, moreover, be a sufficient payment ; Morey v. Herrick, 6 Harris, 123 ; Lounsbury v. Purdy, 16 Barbour, 380 ; and this is equally true of money advanced or loaned to him by a third person ; Gomez v. The Tradesmen's Bank, 4 Sandford's S. C. 106 ; Smith v. Sacket, 5 Gil- man, 534, or even by the person sought to be charged with the trust, because he will be equally entitled to repayment, whether the land rises or falls in value ; Paige V. Paige, 8 New Hampshire, 187 ; Boyd V. M'Lean, 1 Johns. Ch. 582 ; Deyden v. Hanway, 31 Maryland, 254 ; Runnels v. Jackson, 1 How- ard, Miss. 358 ; Bragg v. Panck, 42 Maine, 502 ; and may, by an ex- press or implied agreement, have DYER V. DYER. 339 an equitable lien for reimburse- ment; Beever. Straivn, 14 Illinois, 94 ; Ferguson v. Sutphen, 3 Gil- man, 547 ; Coates v. Woodsworth, 13 Illinois, 634; post, notes to Woollam V. Hearn, vol. 2. Hence, proof that part of the considera- tion of a deed to a father, con- sisted of money belonging to his daughter, and that the rest was paid by him for her benefit as an advancement, will create a trust in the whole land for the daughter ; Beck V. Graybill, 4 Casey, 66. See Fleming v. M'Sale, 4T Illinois, 282.] There is no doubt that payment of part of the purchase-money will create a resulting trust to the ex- tent of that payment ; Botsford v. Burr, 2 Johnson's Chancery, 405, 410 ; Purdy v. Purdy, 3 Maryland, Ch. Decisions, 547 ; Bank v. Swa- zey, 35 Maine, 81 ; Shoemaker v. Smith, 11 Humph. 81 ; Pierce v. Pierce, 1 B. Monroe, 433 ; Duffield V. Wallace, S. & R. 521 ; Morey v. Herrick, 6 Harris, 123 ; Smith v- Wright, 41 Illinois, 185 ; Oar v. Godding, 38 California, 91 ; and a joint advance of money for a pur- chase, raises a corresponding result- ing trust ; Ross v. Hegeman, 2 Ed- wards, 373, 375; LarkinsY. Rhodes, 5 Porter, 196,200. If a joint deed be made to several who pay une- qually, a trust in the land results to each pro tanto of the amount paid by each ; King v. Hamilton, 16 Illinois, 190, 196 ; Fleming v M^Eale, 47 Illinois, 282; and where an executory contract of joint purchase was entered into, and separate notes executed to the vendor for the amounts to be paid by each, it was held that an equita- ble trust arose in favor of each, pro tanto of the consideration promised to be paid by each, which chancery, upon full payment, would specifically enforce by decreeing a conveyance accordingly ; Brothers V. Porter et al., 6 B. Monroe, 106, 107, 108. See Bogert v. Perry, 17 Johnson, 351 ; JacksonY. Bate- man, 2 Wendell, 570, 573. But the amounts paid by the different parties must be shown with cer-_ tainty ; and no case, it was recently said, has been found where a re- sulting trust has been held to arise upon payments made in com- mon by the one asserting his claim, and the grantee in the deed, where the consideration is set forth in the deed as moving solely from the latter, where the amount be- longing to one and the other is uncertain, and unknown even to those who make the payment, and no satisfactory evidence is offered of the portion, which was reallj' the property of each ; Baker v. Vining, 30 Maine, 121, 127. The trust which results by im- plication and operation of law, from the payment of the purchase- money or of a part of it, and with- out any agreement, is a pure and simple trust of the ownership of the land ; it is not an interest in the proceeds of the land, nor a lien upon it for the advance, nor an equity or right to a sum of money to be raised out of it, or upon the security of it. Such rights arise from special agree- ments, and are the subjects of ex- press trusts ; or where implied, it 340 RESULTING TRUST. is from other circumstances than the mere ownership of the pur- chase-money. There can be no resulting trust of an estate to a particular extent of its value, leav- ing the residue of its value in the grantee ; nor can an estate result to one who pays the consideration, as a pledge or security for its pay- ment : such interests may be cre- ated or secured by mortgage, lien, or express trusts. What is known as a resulting trust is a complete trust of original ownership, and it is nothing else. Therefore, to make a partial paj'ment create a resulting trust at all, the money must be paid as a definite aliquot part of the consideration of the purchase, and then the trust will be of an aliquot part of the whole estate in the property : but unless the payment or advance be of a definite part of the consideration money, as such, no trust will result by implication of law, and without agreement ; White v. Carpenter^ 2 Paige, 218, 238, 239, 240, 241 ; Sayre v. Townsend, 15 Wendell, 64Y, 650 ; Freeman v. Kelly, 1 Hoflfman, 90, 96 ; Evans^ Estate, 2 Ashmead, 470, 482 ; Smith v. Burnham, 3 Sumner, 435, 462, 463 ; Green v. Drummond, 31 Mary- land, H; Baker v. Vining, 30 Maine, 121 ; Cutler v. Tuttle, 4 C. E. Greene, 549, 562 ; M'Gowan v. M'Gowan, 14 Gray, 119. [It has, nevertheless, been said, that where a purchase is made with funds furnished jointly, and there is no sufficient proof the amount advanced by each, the presumption should be, that the same amount was contributed by all ; Shoemaker V. Smith, 11 Humphreys, 81; and it would seem that when the doubt or uncertainty arises from the failure of a buyer who has been acting on behalf of others, to keep an accurate account, or from his having confused the funds of his principals with his own, it should be solved by making every reason- able inference against him, and in favor of those whose remedy is embarrassed by his negligence ; Seaman v. Cook, 14 Illinois, 501. There can be little doubt that when the means through which a purchase is to be efiected, come from the alleged cestui que trust, and go into the hands of one who agrees to act as his agent, but takes the deed in his own name, a trust will result, although the agent uses Ms own money and suffers the principal's to lie idle, or em- ploys it in some other way ; Mel- toy V. Melloy, 5 Bush. 464 ; Lan- gerfelter v. Rickey, 2 P. F. Smith ; Rann County v. Harrington, 50 Illinois, 252; Frank's Appeal, 9 P. F.Smith, 190, 195, 196. Under these circumstances the trust is deduced not from contract or agreement, but from the transac- tion as a whole, and although the very money may not be traced into the land, still the case is one where equity, for the sake of the remedy, regards that which ought to be done as done, and will not allow the agent to rely on his disregard of his duty as a reason why he should be in a better position than if it had been fulfilled; Frank's Appeal, see Sandford v. Jones, 85 California, 422 ; Pricey. DTEK V. DYER. 341 Beeves, 38 Id. 45'7 ; Squire^s Ap- peal, 20 P. F. Smith, 266. It is immaterial whether the price is paid in money, or by giving value in anj"- other form ; Clark V. Clark, 43 Vermont, 685; Blauvelt v. Akerman, 5 C. E. Greene, 41 ; Peahody v. Tarhill, 2 Gushing, 346. Accordingly where a mortgage which has been trans- ferred to secure a loan, is sued out by the assignee who buys at the sale, and excihanges receipts with the sheriff, or pays the money and receives it back, the transaction may be regarded S,s a purchase with the funds of the lender, and a trust decreed for his benefit ; Slee V. The Manhattan Co., 1 Paige, 48 ; Hoyt v. Martense, 16 New York, 231, ante. And such will clearly be the effect if the lender stays away from the sale in consequence of a promise that the title shall be held on the same trust as the mortgage, and with a right to redeem on repaying the amount due ; Price v. Reeves, 38 California, 45'!. A trust will be decreed under these decisions in favor of him who is the source of the consid- eration, whether it be land, goods, money, securities, or credit. " The exact time and form," said Wells, J., in Blodgett v. Hildreth, 103 Mass. 484, " in which the considera- tion was rendered, are immaterial, provided they were in pursuance of the contract of purchase. He who purchases at the time and pays afterwards, is as much a purchaser as if he had bought for cash."] If a trustee, or agent of any description, lay out the money which he holds in his fiduciary character, in the purchase of land, and take the conveyance to him- self, the person entitled to the money, may, at his election, charge the trustee personallj^, or follow the mpney into the land, and claim the purchase as made in trust for him, and he may establish such a trust by parol evidence ; Wallace V. Duffield, 2 S. & R. 521 ; Eisler v. Kisler, 2 Watts, 323 ; The Har- risburg Bank v. Tyler, 3 W. & S. 313 ; Wilhelm v. Folmer, 6 Barr, 296 ; Kirkpatrick v. M'Donald, 1 Jones, 393 ; Oliver v. Pitt, 3 How- ard, 401 ; Seaman v. Cook, 14 Illinois, 501 ; Williams v. Hol- lingsworth, 1 Strobhart's Eq. 103; Garrett v. Garrett, Id. 96 ; The Methodist Church v. Jaques, 1 Johnson, 450 ; Moffit v. M'Donald, 11 Humphreys, 431 ; Hill on Trus- itees, 142, note 1 ; Valle v. Bryan, 19 Missouri, 423 ; Neill v. Keese, 13 Texas, 187. In like manner, a purchase by one partner with partnership funds, will create a resulting trust in the firm ; Free- man V. Kelly, 1 Hoffman, 90, 94 ; Smith V. Burnham, 3 Sumner, 435, 462 ; Philips et al. v. Gra- mond et al., 2 Washington's C. C. 441, 445 ; Turner v. Petigrew et als., 6 Humphreys, 438, 439 ; Har- risburg Bank v. Tyler, 3 Watts & Sergeant, 313, 318, ante; [and in King v. Hamilton, 16 Illinois, 190, a purchase of land by a partner with the funds of the firm, without the consent and in fraud of his co- partners, was held to give rise to a resulting trust in their favor, in the ratio of their interest in the assets of the partnership. Under 342 RESULTING TKDST. these circumstances, the principal, or cestui que trust, is entitled to the money or the land, at his op- tion, and may use his hold on the land as the means of getting the money, which distinguishes such cases from those where the money of one man is invested in the pur- chase of land, with his consent and approbation, and a deed taken in the name of another, which may give a right to the land, but neces- sarily precludes all claim to the mone}'' ; Lench v. Lench, 10 Vesey, 511 ; IT Id. 58; Wallace v. Duf- Jield, 2 S. & R. 521, 529. A similar result will follow from a purchase by a husband with the proceeds or accumulations of the separate estate of his wife, or with money bequeathed in trust for her benefit, whether the deed is made in his own name or in that of a third person; The Methodist Church V. Jaques, 1 Johnson's Ch. 450 ; 3 Id. 11 ; Dickenson v. Codwise, 1 Sandford's Ch. 214 ; Finney v. Fellows, 15 Vermont, 325 ; Barron v. Barron, 24 Id. 3Y5 ; Lathrop v. Gilbert, 2 Stock- ton's Ch. 345 ; Lench v. Lench, 10 Vesey, 511 ; but not, as it would seem, from a purchase out of the wife's savings, from money given to her by her husband, or acquired by her own industry after mar- riage, unless the fund would have been her property if it had not been converted into land ; Rayhold V. Raybold, 8 Harris, 308 ; Merrill V. Smith, HI Maine, 394 ; Hender- son V. Warmack, 21 Mississippi, 830 ; although a trust may be raised in favor of the wife, by proof that her husband paid the purchase-money for her benefit, out of his own funds ; Rayhold v. Rayhold; Finney v. Fellows; Farley v. Blood, 10 Foster, 354. If the property which goes to pay for the land belongs to the wife, it is not requisite that it should have been conveyed or set- tled for her separate use. But the sale of the wife's estate, and the receipt of the proceeds by the hus- band, did not, formerly render him her debtor, or fasten a result- ing trust for her on land in which they are subsequently invested j Chester v. Greer, 5 Humphreys, 34; Powel v. Powel, 9 Idem. 416; Fx parte M'Donough, 1 Swan. 202 ; unless she was induced to join in the deed by a promise that the proceeds should be hers, when a trust will attach to any species of property into which the money is subsequently converted ; Frit- chard V. Wallace, 4 Sneed. 405.J A resulting trust may, in all cases, be rebutted ; and it is well settled, that it may be rebutted by parol evidence, or circumstances. The rule is g neral, that an equity founded on parol, may be rebutted, put down, or discharged by parol proof; Myers v. Myers, 1 Casey, 100 ; Livermore v. Aldrich, 5 Cushing, 431, 436. A resulting trust is a mere creature of equity, founded upon presumptive inten- tion, and designed to carry that intention into eflTect, not to de- feat it. It will not attach in the person paying the purchase-money, if it was not the intention of either party that the estate should vest in him. It will therefore not be raised in opposition to DYER V. DYER, 343 the declaration of the person who advances the money, nor in oppo- sition to the agreement of the parties on which the conveyance is founded, or to the obvious pur- pose and design of the transaction ; Botsford v. Burr, 2 Johnson's Chancery, 405, 416 ; Steere v. Steer e, 5 Id. 1, 18, 19; Squire v. ■Harder, 1 Paige, 494, 495 ; White V. Carpenter, 2 Id. 218, 265; Philips et al. v. Gramond et al., 2 Washington's C. C. 441, 445; M'Guire et al. v. M'Gowen et al., 4 Dessaussure, 481, 491 ; Page v. Page, 8 New Hampshire, 181, 196 ; Elliott V. Armstrong, 2 Blackford, 199, 213; Sedge v. Morse, 16 Johnson, 199; nor, if the purpose was a fraudulent one, will it be raised in favor of the person com- mitting the fraud ; Proseus v. M'Intyre, 5 Barbour's S. Ct. 425, 434 ; Ford's Ex'rs, &c. v. Lewis, 10 B. Monroe, 121. [Proof that a resulting trust was intended to defraud or delay creditors, will, therefore, be sufficient to prevent a decree in favor of the complain- ant; Baldwin v. Campfield, 4 Halsted's Ch. 891 ; Vanzant v. Dailies, 6 Ohio, N. S. 52; both law and equity refusing to inter- fere as between wrong-doers, and leaving each in the position in which his own acts and those of his accomplices have placed him ; Murphy V. Hubert, 4 Harris, 50 ; Brantley v. West, 21 Alabama, 542. And the case of Baldwin v. Campfield would seem to show that the court will take notice of the fraud, when disclosed by the evidence, although not appearing on the face of the pleadings, nor set up by the respondent. But it is hardly necessary to say, that the creditors may prove the real nature of the transaction, and have a decree for their benefit, as they might in any other case of the fraudulent or voluntary disposi- tion of the property of a debtor ; Kennard v. M' Bight, 2 Barr, 38 ; Outhrie v. Gardner, 19 Wend. 414 ; Jackson v. Forrest, 2 Bar- bour's Ch. 516 ; Newitty. Morgan, 2 Harrington, 225 ; Watson v. Le Row, 6 Barbour, 481 ; Rucker v. Ahell, 8 B. Monroe, 566 ; Bauskett V. Holsenhack, 2 Richardson, 624; Vansant v. Davies, 6 Ohio, N. S. 52.] Moreover a resulting trust will not be raised in opposition to the law of the land, and, therefore, not in favor of an alien incapable of holding. The law never casts a legal or equitable estate upon one who has no right or capacity to hold it ; therefore, where an alien purchases land and takes an abso- lute conveyance in the name of a citizen, without any agreement or declaration of a trust, a resulting trust will not be raised hy opera- tion of law, in favor of the alien who cannot hold the land ; Leggett V. Dubois, 5 Paige, 114, HI; Philips V. Cramond, 2 W. C. C. R. 441. In like manner, no result- ing trust can arise in contraven- tion of the language or policy of a statute, as when the purpose is to do that through the medium of a trustee which the cestui que trust could not do in his own person ; Alsworth V. Cordty, 31 Missis- sippi, 32. The presumption of a resulting trust is fully rebutted, or no such 344 RESULTING TRUST, presumption arises, where a parent advances the purchase-money, and takes the conveyance in the name of his child. A purchase by a father in the name of his son who is not provided for, is presump- tively an advancement of the son, and no trust results to the parent ; although this presumption maj^ be rebutted ; Partridge v. Havens, 1 Paige, 618, 626 ; Proseus v. M'ln- tyre, 5 Barbour's S. Ct. 425, 432 ; Treviper v. Barton, Jr., 18 Ohio, 418, 423 ; Butler v. M. Ins. Co. et . al., 14 Alabama, IY'7 ; Stanley v. Brannon, 6 Blackford, 194, 195 ; Dennison v. Goehring, 1 Barr, 180, 182, note ; Douglass v. Brien, 4 Richardson's Eq. 322 ; Cartwright V. PFes<, 4 Illinois, 41']'; Shepherd y. White, 10 Texas, 12 ; Alexander v. Warrance, 17 Missouri, 230; Dud- ley V. Bosworth, 10 Humphreys, 12 ; Walton v. Divine, 20 Barbour, 9 ; Dyer v. Dyer, 2 Cox, 92 ; Fin- ney V. Fellows, 15 Vermont, 525 ; Vanzant v. Davies, 6 Ohio, N. S. 52. The same rule was followed in Baker v. Leathers, 3 Indiana, 55*7, and applied to a case where land bought by a father, was conveyed, with his assent, to his daughters. And if an obligation to convey to the father and son is entered into, and the money is paid by the father, this is, presumptively, an advancement of the son to the ex- tent of one-half the estate ; the equitable estate to that extent ac- cordingly vests in him and de- scends to his heirs, and if the deed be made to the father, instead of the father and son jointly, the grantee becomes a trusteee as to one-half, and may be compelled to convey ; Thompson's Heirs v. Thompson's Devisees, 1 Yerger, 97, 99. A purchase by a husband in the name of his wife is, in like manner, in the first instance, taken to be an advancement of the wife, and not a resulting trust ; Guthrie V. Gardner, 19 Wendell, 414 ; Whitteii & others v. Whitten, 3 Gushing, 194, 197; Walton v. X>jmrte, 20 Barbour, 9; jdZeajanderv. Warram, 17 Missouri, 228 ; Fathe- ree v. Fletcher, 31 Mississippi, 265 ; Cotton v. Wood, 25 Iowa, 30. And the same "rule applies in relation to one towards whom the party stands in loco parentis, as a son-in-law ; Baker v. Leathers, 3 Porter, Indiana, 558 ; or a nephew who has lived with the uncle as a member of his family. In Jack- son V. Feller, 2 Wendell, 465, 469, an uncle bought a farm and paid the purchase-money, and took the conveyance in the name of his nephew, who had lived with him and worked for him for a long time without other recompense than his clothing ; Southerland, J., said that as a resulting trust may be proved, so it may be re- butted by parol evidence, and he held that declarations by the uncle that he had given the farm to his nephew, and intended it as a pro- vision for him, were sufficient to show that the purchase was a gift and advancement to the nephew. The rule does not apply as between more distant relatives. That the person who pays the money is the brother of him who takes the deed, will not alone rebut the presumption of a resulting trust ; Edwards v. Edwards, 3 BTER V. DYER. 345 Wright, 369 ; although it is a cir- cumstance which may have that effect in connection with other cir- cumstances. The presumption of an advance- ment, from the grantee's being the child or wife of the person who pays the purchase-money, may be rebutted by evidence which shows that the intention of the latter was to secure a trust for himself; Jack- son V. Matsdorf, 11 Johnson, 91, 96 ; Shepherd v. White, 10 Texas, 72; the question, in such cases, is one entirely of intention ; Proseus V. M'Intyre, 5 Barbour, 425, 432 ; Butler V. M. Insurance Go. et al., 14 Alabama, 7 77, 788 ; Cotton v. Wood, 25 Iowa, 30 ; Hodgson v. Macy, 8 Indiana, 121 ; and hence proof is seemingly admissible that a conveyance of land bought and paid for by a husband, was made to his wife under the mistaken impression that it would vest a title in, or operate for the joint use and benefit of both of them ; 2 Williams, 638. And if a person indebted, purchases lands with his own money, and takes the convey- ance in the name of another, for the purpose of defrauding his creditors, the trust in the land re- sults to him for the benefit of his creditors and may be taken by them; Guthrie v. Gardner, 19 Wendell, 414 ; Brown and others V. M'Donald, 1 Hill's Chancery, 297, 306 ; JDemaree v. Driskill, 8 Blackford, 115 ; Doyle, &c. v. Sleeper, &c., 1 Dana, 531, 537 ; Hunt and Tucker v. Booth, Ed- wards and Hunt, 1 Freeman, 215, 217; Bell v. Hallenback et al., Wright, 751 ; Newells v. Morgan et al., 2 Harrington, 225, 229; Dewey v. Long, 25 Vermont, 564 ; but it seems that a trust will not result for the benefit of the party who has thus attempted a fraud; Proseus V. M'Intyre, 5 Barbour, 425, 434, ante. [In Edwards v. Edivards, 3 Wright, 377, where the question arose between brothers. Wood- ward, C. J., held the following language in delivering judg- ment : " The plaintiff 's case does not rest upon any declaration of trust by the defendant, either written or parol, but entirely upon that implication which the law makes in favor of a pur- chaser, who buys real estate with his own money, and takes the title in the name of another. This is a well recognized mode of making title to real estate. Indeed, most of the text writers, and many of the adjudged cases, define a re- sulting trust by the instance of the very case made by the plain- tiff's bill ; a purchase by one in the name of another. The nomi- nee in the title deeds becomes trustee for him who paid tlie money. The ownership of the money which purchased, draws to itself the beneficial or equitable interest in the estate." " And such equitable title, though resting generally in parol proof, is expressly exempted from the Statute of Frauds and Perjuries. Still, it is a mere implication or presumption, as it has sometimes been called, but a reasonable one, founded in the general experience and observation of men. At com- mon law, before the Statute of 346 RESULTING TRUST. Uses, a feoflfraent made without consideration was presumed to be made for the use of the feoffor, and it is upon parity of reason and tn strict analogy to this, that equity regards the owner of the money which is paid for land as the owner of the land. But being a mere prima facie presumption, it may be rebutted. If the nomi- nee in the title be a wife, or child, or grandchild, or one to whom the purchaser stands in loco parentis, the moral obligation to provide for a such party is at once recog- nized, and an advancement is pre- sumed. But brothers are not ^within this rule ; Maddison v. Andrew, 1 Vesey, Sr. 58 ; Benbow V. Townsend, 1 Mylne & Keene, 506. The presumption may be re- butted also by the declarations of the purchaser, made at the time of and in such immediate connec- tion with the purchaser as to be part of the res gestee. It is im- portant that this rule in regard to declarations be received with the limitation here stated. And so received, it will be apparent that much of the evidence in the large volume of proofs we have before us, is either wholly irre- levant or of small consequence. If a purchaser declare that he pays his money for the benefit of the nominee in the deed, though that party do not stand in such ■relationship as would of itself, with out any declaration, raise a pre- sumption against the purchaser, let •it tell against him. The legal effect of his act, without the declara- tion, would have been to give him an equitj^ ; but any man of com- mon sense may qualify the legal effect of his conduct by an accom- panying declaration. B ut what do declarations before or after the purchase signify ? If before, they can import no more than an inten- tion, which, because it is a mere mental purposes, may be changed. If after, they operate to divest an equitable estate, and therefore, are unworthjr to be received. In Bailey v. Boutcott, 4 Russ. 345, it was held that the expression of a mother's inchoate intention to settle the property, was not such a declaration of trust as the court could act upon ; and generally loose and indefinite expressions, and such as indicate only an incom- plete executory intention, are in- sufficient either to fasten a trust upon property, or to loosen it where it has once attached. The expressions must be used con- temporaneously with or in contem- plation of the act of disposition ; Kilpin V. Kilpin, 1 Mj'lne & Keene, 531 ; Tritt v. Crotzer, 1 Harris, 457 ; Hill on Trustees, 97 ; 2 Sug. on Vend. 131." A subsequent declaration will, like a subsequent promise, be in- operative from the want of con- sideration, if from no other cause ; Williard v. Williard, 6 P. F. Smith, 119, 124; 2 Am. Lead. Cases, 186, 5 ed. It may, notwith- standing, like a subsequent prom- ise, be evidence from which a jury or chancellor may infer the nature of the original transaction, and thus establish or disprove the equity which the complainant is seeking to enforce ; Williard v. Williard. Where the effect of DYER V. DTER. 347 •what passes at the time is to con- fer an equity, nothing that is said afterwards can defeat the interest thus acquired. But a declaration bythe alleged cestui que trust, that the land does not belong to him, is a reason for inferring that he did not pay the purchase-money, or that if he did, it was as a gift or loan. An admission against interest is ordinarily a safe guide as against the person making it.J The admissibility of parol evi- dence of intention, in cases wliere the purchase-money has been paid ■by another person than the legal grantee, has, undoubtedly, in the American cases, taken a very general and very dangerous range. But the evil seems to be inherent in the practical adminis- tration of the original principle of equity, that a trust results pre- sumptively from payment of the purchase-money : and so long as that doctrine is acted upon, it is almost impossible to lay down any general restriction upon the reception of parol evidence, with- out incurring a risk of doing in some cases great injustice. Lord Chancellor Sugden, indeed, in Sail V. Hill, 1 Connor & Law- son, 120, 139, has endeavored to establish a difference between the admission of such evidence to re- but, and to fortify, an equitable presumption ; he suggests that the true general principle of equity is, that parol evidence of inten- tion is admissible to rebut a pre- sumption arising against the ap- parent intention of the instrument, but not to fortify such a presump- tion ; that is to say, not to fortify it in the first instance, because, if parol evidence be given to rebut the presumption, no doubt that may be counteracted by other parol evidence in support of the presumption. But it is very diffi- cult to apply that distinction, supposing it to be sound ; because, in many instances, it is scarcely possible to say whether the con- clusion that would be arrived at upon particular circumstances, is a presumption, or the rebuttal of a presumption. For example, ■when a purchase is made by a father in the name of a son who has not received any advancement, it is not easy to say whether the inference which would be made upon those facts, of a trust for the son, is the presumption of an ad- vancement, or the rebuttal of a resulting trust. If it is the latter, parol evidence of intention that the son should be a trustee for the father, would, upon Sir E. Sugden's rule, be objectionable, as opposing the deed ; and parol evidence the other way would be still more so, as cumulative upon both the legal construction and the equitable presumption : yet upon the English cases, it is ad- missible both ways. But the dis- tinction, at least in reference to resulting trusts, seems not to be sound in principle. When the doctrine is once taken up, that the intention of the parties is not to be found in the legal construction of an instrument, and that you are to infer it from extrinsic circum- stances, nothing short of a general admission of all parol evidence that throws light on the intention, 348 RESULTING TRUST. and is in its nature competent, can he adopted. The rule in equity certainly is, that until the fact of the payment of the pur- chase-money by another is proved, the interests vest according to the legal operation of the deed : but when that fact is proved, the deed is no longer, in equity, abso- lutely, the legal determination of the intention of the parties, and that intention must be sought for elsewhere, and, of course, from circumstances in parol. In seek- ing it, elsewhere, why should the written instrument be suffered to thwart the discovery of that in- tention, from parol, when it is ad- mitted that that instrument is not the absolute expression of the in- tention of the parties to the con- tract ? The ground of a resulting trust is, that payment of the pur- chase-money is an equity to have the land ; but evidence of intention must often enter into the fact whether that payment is such an equity, under the circumstances. The mere fact of payment may, in some cases, not be sufficient to show a clear presumption of a trust, yet explained by parol evi- dence of intention, it might be ; or the mere fact of payment may, in the evidence of it, be inseparately connected with some other cir- cumstances which tend to rebut the presumption: and in such a case, parol evidence of intention would only be counteracting this rebutting evidence. The original doctrine is probably one of the mistakes of equity : but being ad- mitted, it becomes necessary, both by logical consequence, and in practical justice, to give complete and consistent scope to the evi- dence which the doctrine sanc- tions and introduces : and an at- tempt to narrow the use of such evidence by arbitrary little rules which are applied out of place, only increases the mischief. When it is once settled that payment of the purchase-money raises an equity and a trust, which over- rides the deed, the practice, in reason and conscience, ought to be, to admit all legal evidence that can exglain, define, and determine the equity. See Baker v. Leathers^ 5 Indiana, 558. In New York, by the revised statutes, (vol. 1, p. T28, pt. 2, ch. I, sec. 51,) resulting trusts from payment of the purchase-money are abolished ; except (sec. 52) that where a conveyance is taken in the name of another person, it shall be presumed fraudulent as against the creditors at the time of the person paying the considera- tion ; and where a fraudulent in- tent is not disproved, a trust results in favor of such creditors, to an extent sufficient to satisfy their de- mands ; and except also (see. 53) where the grantee has taken the conveyance in his own name with- out the consent or knowledge of the person paying the considera- tion, or has purchased the lauds in violation of some trust, with moneys belonging to anotlier per- son ; Turcks V. Alexander, 11 Paige, 619 ; Watson v. Le Row, 6 Barbour, 481. The creditors of the person furnishing the con- sideration money can therefore reach the laud only by charging DYER V. DYER- 349 fraud ; Bodine v. Edwards, 10 Paige, 504 ; and none but creditors existing at the time can avail themselves of such fraud ; Brew- ster V. Power, Id. 563, 568 : but if a case of such fraud be estab- lished, the trust in the land results to the debtor in favor of his credi- tors, and they may proceed against it at law as an estate in him ; Wait V. Day, 4 Denio, 439 ; controlling the dictum in Brewster v. Power, 10 Paige, 562, to the contrary. But in the recent case of Gorfield v. Ealmaker, 15 New York, R. 415, Wait v. Day was overruled, and the only remedy of the credi- tors, under such circumstances, held to be in equitjr. A misappli- cation of trust funds by a purchase in the trustee's name, will, how- ever, give rise to a resulting trust, under these statutes, as it did before; Russell v. Allen, 10 Paige, 250. [Resulting trusts, arising from the paj'ment of the purchase-m oney , have also been abrogated in Ken- tucky, Minnesota and Indiana ; Durfee v. Pasitt, 14 Minnesota, 424 ; Hodson v. Macy, 8 Indi- ana, 122 ; Martin v. Martin, 5 Bush, 4Y. The hardship of the restriction has led the courts to engraft exceptions and limitations which were not contemplated by the legislature. Thus it has been decided in New York, that where it does not appear that the person who paid the money knew that the conveyance was absolute on its face, the presumption is that it was so drawn in through mistake or fraud, and a trust will be decreed accordingly ; Day v. Roth, 18 New York, 448 ; Siemon v. Schrack, 29 Id. 558. It was also intimated that if A. supplies the funds and the deed is made to B , the inten- tion being that it shall enure for the benefit of C, the case is not within the statute, and C. may cut force the trust. It was held with more reason in Hodson v. Macy, 8 Indiana, 122, that where the party who is the source of the considera- tion, enters upon and occupies the premises with the acquiescence of the grantee, a trust will be decreed, as in other instances where pos- session is given and received in part performance of an oral con- tract. The general rule, where a re- sulting trust is sought to be estab- lished, and indeed in all cases where aid is sought either from law or equity, is, that the allegata and probata must agree ; and the com- plainant cannot set forth one case in the pleadings and recover on another as ultimately established by the proofs ; Andrew v. Farn- ham, 2 Stockton's Ch. 91 ; although it seems that the court may, at their discretion, enforce an equity disclosed by the answer, differing from that alleged in the bill. A resulting trust arose at com- mon law on a feoffment without consideration, and it has been said, that the same rule should apply to all conveyances which appear on their face to be voluntary, or for a merely nominal consideration ; Story's Equity Jurisprudence, sect, 1197 ; Cruise's Digest, 402, sect. 31 ; although the better opinion is, that such a trust will not arise from the absence of a consideration. 850 KESULTINa TRUST. without corroborating circumstan- ces, (such as the retention of the deed, the long continued and ex- clusive possession of the grantor, the absence of the grantee at the time of its execution, and his fail- ure to exercise or act upon the rights which it purports to confer,) tending to show that there was no intention to make a gift, or pass the beneficial interest in the prop- erty conveyed ; Hill on Trustees, 106 ; Cecil v. Butcher, 2 J. & W. 573 ; Sowerbye v. Arden, 1 John- son's Ch. 240 ; Tolar v. Tolar, 1 Dev. Eq. 456. And however this may be, it would seem well settled, that a deed which purports to be made for a full and valuable con- sideration, cannot be shown to be merely voluntary, in order to raise a trust in favor of the grantor ; because such evidence is directly at variance not only with the Stat- ute of Frauds, but with the rule that a written instrument cannot be varied by parol evidence ; ante, Leman v. Whitley, 4 Russell, 323 ; Harper v. Harper, 5 Bush, 131 ; Porter v. May field, 9 Harris, 264 ; Wilhinson v. Wilkinson, 2 Deve- reux, Eq. 376 ; Rathhone v. Rath- hone, 6 Barb. 93 ; Philhrook v. Delano, 29 Maine, 410 ; Squire v« Harder, 1 Paige, 494 ; Graves v. Graves, 9 Foster, 129. This view of the law is somewhat at variance with the language held by Story, in his Treatise on Equity Juris- prudence, (2 Equity Jurispru- dence, 1199,) and in Jenkins v. Eldridge, 3 Story, 181,290, where the case of Leman v. Whitley is questioned, and an opinion inti- mated, that procuring a convey- ance for one purpose, and then using it for another, is a fraud, against which equity will relieve, whether the evidence is written or oral, but would seem essential to the certainty and stability of the assurances on which the title to real property depends, and is sus- tained by the recent case of Bal- beck V. Donaldson, 6 Law Regis- ter, 148, where the retention of the conveyance, and of the posses- sion of tiie property which it pur- ported to convey, coupled with other circumstances which raised a strong presumption that the grantees had really paid nothing, and that it was not intended that they should have the beneficial interest, were held insufficient to raise a resulting trust in opposi- tion to the express words of the deed, which purported to have been made for a full and valuable consideration. It has, notwitli- standing, been held in Pennsyl- vania, that the oral declarations of the grantee are admissible in evi- dence, to show that a deed is vol- untary, and subject to a trust for the grantor, in opposition not only to the words of the deed itself, but of a bond executed at the same time, for the full amount of the consideration expressed in the deed ; Murphy v. Hubert, 7 Barr, 420 ; the ground of the decision being, that as the seventh section of the Statute of Frauds was not in force in that State, a trust might be declared orally, and proved by the testimony of witnesses. The court, however, seems to have omitted to inquire how there could be a trust, if the consideration was DYER V. DYER , 351 valuable, and hoT? the deed could be shown to be merely voluntary, in opposition to its language, and that of the bond which the grantee executed for the purchase-monej', without violating rules of evidence, which were anterior to the Statute of Frauds, and would be binding if it were repealed ; vol. 2, post, note to Woollavi v. Hearn. Murphy V. Hubert was virtually overruled in Porter v. Mayfield, 9 Harris, 264, but the question seems to be again at large under Lingelfelter v. Ritchey, 8 P. F. Smith, 485. A trust may be engrafted on an absolute conveyance, by showing that the consideration was such as to give rise to the trust. Proof that the consideration was a loan will convert a deed into a mort- gage. If the consideration moves from a third person, the inference is that the land belongs to him who paid for it ; Morris v. Nixon, lY Peters, 109 ; 1 Howard, 118; and the same result will follow where a deed, absolute on its face, is shown to have been given as security for a loan, or the payment of an antecedent debt. In cases of this description the parol evi- dence does not contradict the writing or set up an oral agreement dehors the instrument. It estab- lishes the existence of a collateral fact, from which an equity arises to control the deed. This is the true explanation of Morris v. Nixon, which seems to have been differently interpreted in Jenkins V. Eldredge, 3 Story, 181, 219. In the absence of such evidence, it is well established that a trust cannot arise except on the ground of fraud, as distinguished from a breach of contract ; Gillin v. Drummond, 31 Maryland, tl ; Sheldon v. Harding, 44 Illinois ; Holmes v. Holmes, lb. 168 ; Bor- sey V. Clark, 4 Harris, 556; post, vol. 2, notes to Woollam v. Hearn. What will constitute such a fraud has not been accurately defined; but it is clear that there must be something more than the bad faith implied in every wilful breach of an agreement on which others have acted. It is not enough that the grantee made a promise, which he subsequently refused to fulfil, unless there are other circumstan- ces which in the aggregate amount to fraud ; Jackman v. Ringland, 6 W. & S. ; Barnet v. Dougherty, 8 Casey, 371 ; Hoge v. Hoge, 1 Watts, 163, 214. The defendant may admit that he sold the land and received the purchase-money, and yet allege the statute as a reason why he should not be required to convey. No stronger case can be presented short of fraud. The reason is be- cause a purchaser who chooses to go outside of the law and trust to the honor of the vendor, must take the consequences of his mistaken confidence. The case is obviously different where artifice is employed to conceal the real nature of the transaction or throw the other party off his guard. It is no more possible to be secure at all times against fraud than against violence. But it must appear that the deceit was the inducement to the conveyance, without which it would not have been made ; and unless the evidence 352 RESULTING TRUST. goes to this extent, a court of equity can no more dispense with the statute than a court of com- mon law; Kinlerv. Kisler, 2 Watts, 323 ; Soge v. Hoge, 1 Id 163. The decisions may be ranged under three heads : 1st. Where the conveyance is gratuitous, as in the case of a will ot deed, for a merely nominal consideration. 2d. Where it purports to be for a full and valuable consideration, but is ia fact gratuitous. 3d. Where the consideration is valuable, and paid in whole or in part by the grantee. It is established under the first head that where one obtains a gift of property, on the faith of a parol assurance that he will dispose of it, either wholly, or in part, in a particular way, equity will enforce the performance of the agreement; Hill on Trustees, 59 ; Jenkins v. Eldridge, 3 Story, 182. This is well settled, as it regards wills ; Devenish v. Baines, Pue in Chan- cery, 3 ; Whynn v. Whynn, 1 Vernon, 296 ; Hoge v. Soge, 1 Watts, 163 ; Church v. JRuland, 14 P. P. Smith, 432; Jones v. M'Kee, 3 Barr, 496; 6 Id. 425; Barren v. Hanrick, 42 Alabama, 60 ; and the case is substantially the same where the gift is made by a deed reciting a consideration, which is not reall}' paid ; Onson v. Gown, 22 Wisconsin, 529 ; Miller v. Pearce, 6 W. & S. 97 ; Kennedy v. Kennedy, 2 Alabama, 5'?1 ; Thomson v. White, 1 Dallas, 447; Dixon v. Olmius, 1 Cox, Cli. Cases, 414 ; Chamberlain v. Chamberlain, 2 Freeman, 34 ; Oldham v. Litchfield, 2 Vermont, 506 ; Hoge v. Hoge, 1 \\'atts, 163, 214 ; Sheriff Y. Neal, 6 Id. 534. So a trust may arise where an owner is fraudulently induced not to ex- ercise the jus disponendi by one who will inherit at his death. In Strickland v. Aldridge, 9 Vesey, 516, Lord Eldon treated it as in- disputable, that an heir who in- duces the ancestor to refrain from making a will by a promise, must make it good if the estate descends to him; and the principle is the same where a will is allowed to stand in consequence of the as- surances of the devisee that he will provide for one to whom the testator would otherwise have left a legacy. Jorden v. Money, 5 House of Lords, 185. See post, vol. 2, notes to WoollamY. Hearn, 250. In like manner where one who will succeed to personal prop- erty, if the person to whom it be- longs dies intestate, promises the latter to dispose of it in a particu- lar way after his death, a trust will arise ex maleficio if the promise is not fulfilled ; see Parker v. Urie, 9 Harris, 305 ; Pringle v. Pringle, 9 P. F. Smith, 281 ; Williams v. Fitch, 18, New York, 548. The fraud consists in the diver- sion of the donor's bounty from its intended channel, by a promise which is not kept, and it has been contended that a devise, made without solicitation or undue influ- ence, cannot be charged with a trust by a promise to hold it for the benefit of a third person. But the weight of authority is, that whetlier the execution of a will is procured by a fraudulent assurance, or the alteration of it prevented, the DTEK V. DYER. 353 fraud and consequent injury are the same. A devisee may be declared a trustee ex vialejicio, on this ground f(;r the heir-at-law, or the heir-at-law for an intended devisee. So the complainant may show that the testator would have executed a codicil in his favor, if the residu- ary legatee had not promised that his wishes should be observed. The principle is clearly stated by Lord Westbury in M' Cormick V. Grogan, 4 Law R., House of Lords, 9T. " The Court of Equity has, from a very early period, de- cided that even an Act of Parlia- ment shall not be used as an in- strument 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 Par- liament, but it fastens on the indi- vidual who gets a title under that Act, and imposes upon him a per- sonal obligation, because he applies the Act as an instrument for ac- complishing a fraud. In this way the Court of Equity has dealt with the Statute of Frauds, and in this manner, also, it deals with the Statute of Wills. And if an in- dividual on his deatli-bed, or at any other time, is persuaded by his heir-at-law, or his next of kin, to abstain from making a will, or if the same individual, having made a will, communicates the dis- position to the person on the face of the will benefited by that dis- position, but, at the same time, says to that individual that he has a purpose to answer, which he has not expressed in the will, but which he depends on the disponee to VOL. I. — 23 carry into effect, and the disponee assents to it, either expressly or hy any mode of action which the disponee knows must give to the testator the impression and belief that he fully assents to the request, then, undoubtedly, the heir-ait-law in the one case, and the disponee in the other, will be converted into trustees, simply on the principle that an individual shall not be benefited by his own personal fraud. Yon are obliged, therefore, to shf)W most clearly and distinctly that the person you wish to con- vert into a trustee acted malo animo. You must show distiuctlj- that he knew that the testator, or the intestate, was beguiled and de- ceived by his conduct. If you are not in a condition to affirm that, without any misgiving or possi- bility of mistake, you are not war- ranted in affixing on the individual the delictum of fraud, which you must do before you convert him into a trustee." It has been held repeatedly that proof that a testator was prevented from revoking his will by fraud, violence, or undue influence, does not invalidate the instrument, un- less, perhaps where the devisee is particeps criminis. See Boyd v. Cook, 3 Leigh, 82 ; Hiae v. Pincher, 10 Iredell, 137 ; Clingman v. Micheltree, 1 Casey, 25 ; Kent v. Mehaffey, 10 Ohio, N. S. 204 ; 2 American Leading Cases, 494, 5th ed. So evidence that a will was executed on the faith of a promise, is only admissible as against the promisor. Yet it has been held, that a will procured by undue in- fluence is invalid, even as it re- 354 RESULTING TKUST. gards one who took no part in procuring the will ; Hugnenin v. Bazzley, 14 Vesey, 2'?3 ;^os<, vol. 2. And it seems to have been thought, in Williams^ Appeal, 23 P. F. Smith, 249, 284, that a promise by an ^ecutor to the testator, may control the exercise of a testament- ary power conferred by the will. It results from what has been said, that a grant cannot be affected with an oral trust for a third person, merely on the ground of contract, nor unless the evidence goes far enough to establish fraud. A for- tiori such a trust cannot be sus- tained in favor of the grantor. It seems that a trust resulted prime facie from a feoffment without con- sideration where no services were reserved, although the presump- tion might be rebutted by parol ; ■ 1 Cruise Title, 12, ch. 1, sect. 52 ; The Duke of Norfolk v. Brown, Free, in Ch. 88. .No such infer- ence is possible in the case of a bargain and sale, although for a nominal consideration, or of a re- lease " habendum " to the use of the releasee, because the intention of the parties as expressed in the instru- ment is to vest theright of property in the grantee: Fhilbrook v. De- lano, 29 Maine, 410 ; Bathbun v. Bathhun, 6 Barb. 98 ; Graves v. Graves, 9 Foster, 129 ; HOI on Trustees, 106 ; Story's Eq. Juris- prudence, sect. 1199; 4 Kent's Com. 306. It cannot, there- fore, be shown that he gave no consideration, or agreed to hold for the grantor, because the evi- dence is irrelevant, and tends to contradict the deed. This re- sults from the doctrines of the common law, aside from the re- straint imposed by the statute of frauds, ante. See Blodgett v. Hil- dreth, 103 Mass. 350 ; Hogan v. Jaques, 4 C. E. Green, 123. It was indeed said in Porter v. May field, 9 Harris, 263, that evidence that the grantee agreed to hold the title in trust for the grantor, is a flat contradiction of the deed, but that the deed is not contradicted by showing that the vendee purchased in trust for a third person, for such evidence only establishes a new and consistent relation. This dis- tinction can hardlj- be sustained. A grant is a contract executed, and whatever impairs the grant, impairs the obligation of the con- contract : Fletcher v. Peclc, 6 C ranch, 87. Evidence that the in- tention was to vest the beneficial interest in a third person, is, there- fore, not less inadmissible than evi- dence that it was to revert to the grantor. The second head is also capable of subdivision. The trust may be set up between the original par- ties, or in favor of a third person. In the former instance, the objec- tion is two-fold, under the pro- visions of the Statute of Frauds, and that the evidence contradicts a writing under a seal. See Forter V. Mayfield, 9 Harris, 264. The trust cannot be alleged consist- ently with the deed, because it is impossible to believe that the gran- tee gave a full and valuable con- sideration for the privilege of holding the land for the use of the grantor. A deed may be regarded in two aspects. In one it is the means by which the title is con- DYER V. DYER. 355 veyed ; in the other, a memoran- dum of the terms and conditions of the transfer. If a man delib- erately executes a sealed instru- ment, reciting that he has trans- ferred the right of ownership for value received, he should not be permitted to put the grantee to the proof of that which has been established with the utmost solem- nity known to the law. This is the more true, because such a disguise is generally adopted for some sin- ister purpose, to defraud creditors, or deprive a wife of dower. See Murphy v. Hubert, 4 Harris, 50. If there be any instance to the contrarjr, it is better that the grantee should suflfer for his folly in putting the transaction in a form contrary to the truth, than that the stability of titles should be endangered by rendering it im- possible to frame a conveyance that shall be secure from attack ; Leman v. Whetley, 4 Russell, 323 ; Porter v. May field, 9 Harris, 264, post ; Hogan v. Jaques, 4 C. E. Green, 123. If it be proved that the deed was misdrawn through accident or fraud ; or that it was procured through un- due influence — Lingenfelter v. Bichey, 8 P. F. Smith, 485— a trust may arise dehors the instrument ; but this depends on other princi- ples. The law was so held in Blodgett v. Hildreth, 103 Mass. 484, where Wells, J., used the following lan- guage in delivering judgment: " As to the share of Lucinda, con- veyed by her to Sophronia, with- out consideration, and upon an agreement to reconvey or hold it for the benefit of Lucinda, no valid trust arises from that transaction ; Walker v. Locke, 5 Gushing, 90. A voluntary deed is valid between the parties as a gift, and does not raise any trust in favor of the giantor. It is otherwise with a feoifment, and perhaps in other conveyances, wherever there is no declaration of the uses, or the con- sideration is open to inquiry in determining the eft'ect of the deed between the parties and their privies : Cruise Dig. (Greenleaf ed.), tit. 11, c. 4, § 16, and tit. 32, e. 2, § 38. In this commonwealth, the consideration is not open to such inquiry. Supposing the deed in question to have been in the common form, the recital of a con- sideration, and the declaration of the use to the grantee and her heirs in the habendum, are both conclusive between the parties, and exclude any resulting trust to the grantor ; Squire v. Harder, 1 Paige, 494 ; Hill on Trustees, 112, 2 Story's Eq. § 1197; Fhilbroke V. Delano, 29 Maine, 410 ; Far- rington v. Barr, 36 N. H. 86 ; Graves v. Graves, 9 Foster, 129." See Haigh v. Reye, 4 L. R. Ch. Appeals, 4'73. It was held in like manner in Wilkinson v. Wilkinson, 2 Dever- eux Eq. 378, that the recital of a valuable consideration is conclu- sive on the parties and those claiming under them, unless it is shown to have been introduced by mistake or fraud. Gaston, J., said: "The plaintiffs here allege, that the defendant caused this consideration of value to be un- truly inserted in the deed, either 356 I RESULTING TKUST. without the knowledge of the grantor, or by availing himself of the misconception of the grantor, that it was a necessary form to give the instrument validity. The parol evidence is admissible to support this charge, for if it be made out, then the instrument must be considered as if it had truly been what the contracting parties intended it to be. But it is admissible for this purpose only." The main current of decision is in this direction, and establishes that a trust cannot be fastened on an absolute deed bj' evidence that the grantee jjaid no consideration, or that he agreed to take and hold the premises for the grantor ; Hutchinson v. Tindall, 2 Green. Ch. 35T ; Rohson v. Harwell, 6 Georgia, 589 ; Squire v. Harder, 1 Paige, 494 ; Rathhun v. Rath- bun, 6 Barb. 98 ; Philbrooke v. Delano, 29 Maine, 410 ; Graves v. Graves, 9 Foster, 129 ; Leman v. Whetley, 4 Russell, 423. In Squire V. Harder, the complain- ants sought to establish a resulting trust in land which they had con- veyed with warranty, and were held to be estopped from showing that the grantee had only a life in- terest in the purchase-mone^r, and that upon her death it would have belonged to them. The recital in a deed of bargain and sale is conclusive that the grant is for a valuable considera- ' tion, but not that it was paid. It is not, therefore, conclusive on the latter point in au action of as- sumpsit for the price, or bill filed, to establish the vendor's lien ; and the plaintiff may consequently recover on proof that the debt is due, notwithstanding an admission to the contrary in the deed or ac- companying receipt. See Leman V. Whetley, 4 Russell, 423 ; Jordan V. Money, 5 House of Lords, 185, 234; Thomas v. M'Cormick, 9 Danas, 108. In Walker v. Locke, 5 Gushing, 90, the plaintiffs being desirous of raising money on an estate which was already encumbered, applied to the defendant, a broker. The latter said that he would endeavor to find a lender, but feared that he could not succeed unless the plaintiffs would convey the property to him. Such a deed was accordingly exe- cuted, but the defendant refused to carry out the agreement or re- convey the premises. The ,bill also averred that the plaintiffs were induced by the fraudulent representations of Locke, one of the defendants, to convey the real estate described in the bill to him, for the purpose of raising money to pay off' certain mortgages and attachments thereon, and then to reconvej' the estate to the plaintiff. The Court held, that the only ma- terial allegation was that Locke informed the plaintiffs that the deed was a mere matter of form, to enable him to obtain the money and paj' oft' the attachments and mortgages, and that he would raise the money and pay the same, and then reconvey the estate to the plaintiffs. The inference from the whole bill was that there was no agreement in writing or declaration of trust by Locke to hold the estate in trust, and any parol agreement DYER V. DYER. 357 or declaration to that efTect was void by the Statute of Frauds. And as this appeared on the face of the bill, it was dismissed with costs. This ease cannot be reconciled with Jenkins v. Eldridge, 3 Story, and may be thought to err as much in one direction as that does in an- other, because every one who, like a broker, holds himself out to the world as acting in a fiduciary ca- pacity, owes entire good faith to those whom he undertakes to rep- resent or advise. If he buys from one who relies on his superior skill and knowledge, the transaction should be narrowly scanned, and the sale set aside if there is reason to suspect misrepresentation, con- cealment, or undue influence. The decisions in Pennsylvania go to the opposite extreme, and it is there held, that if a man who is in possession under an equitable or imperfect title, con- veys to another on the faith of an assurance that the grantee will take the necessary steps to make it good by obtaining a patent from the Commonwealth, and then re- convey, equity will compel a spe- cific performance of the promise, or decree a trust ; Mc Cullough v. Cbwher, 5 W. & S. 42Y ; Church V. Church, 1 Casey, 2'r8 ; Plumer V. Reed, 2 Wright, 46 ; Lingen- felter v. Ritchey, 8 P. F. Smith, 485. In Murphy v. Hubert, t Barr, 420 ; 4 Harris, 50, the court went still further, and to the ex- tent of founding a trust on the oral admissions of the grantee, that she gave nothing for the land, and had agreed to hold it for the grantor and his children, although the deed was absolute and recited valuable consideration paid in full. These decisions proceed on the ground that obtaining a gift by a promise to use it in a particular way is a fraud, if the promise be not fulfilled, which is indisputable, but they omit to inquire how such a promise can be shown consist- ently with the common and statute law, when the gift is of land and under seal. The only answer that can be given is, that by a rule peculiar to Pennsylvania, a written instrument may be controlled or modified by what passes before and at the time of execution, and that the legislature saw fit to omit the seventh section in re-enacting the statute of frauds. Thus, Gibson, C. J., said that, only the three first sections of the English Statute of Frauds were in force in Pennsyl- vania. The seventh section had been designedly omitted, and there was consequently nothing to pre- vent the declaration or reservation of a trust by parol. There is another consideration which the court would seem to have overlooked. One who seeks to affect the terms or operation of a deed by oral evidence, is encoun- tered, not only by the statute of fraud, but by the common law rule that a written contract shall not be varied by parol. The seventh section is now a part of the law of that State, under the provisions of a recent act of Assembly, and will probably have a marked influ- ence on the future course of de- cision. Accordingly, when the question arose in Porter v. May- field, 9 Harris, 263, Lowrie, J., 358 RESULTING TRUST. said, that " evidence that at the time of the conveyance the vendee agreed to hold the title in trust for the vendor, is flat contradiction of the written instrument. Oral testi- mony could have no such power. As between vendor and vendee, it was inadmissible to change a title, absolute on its face, into a trust." The doctrine that obtaining an absolute conveyance by a promise to hold or use it for the grantor may give rise to a trust, is also sustained by Jenkins v. JEldredge, 3 Story, 181, and Foote v. Foote, 58 Barb. 258, which go very far towards substituting the more or less arbitrary discretion of the chancellor for the rule prescribed by the statute of frauds. It has been said in vindication of these decisions that to obtain a deed by a promise which the grantee does not intend to fulfil, is a trick against which equity should relieve. This is no doubt true where the promise is one that can be proved consistently with legal policy, but the difllculty lies in the proof. It is a rule alike of the common law and of equity, that where a contract is embodied in a written instrument, which is duly executed, the writing shall be pre- sumed to contain the contract. This presumption is irrefragable, because the writing being the act of both parties, is better evidence of what both designed than any evidence that can be adduced by one. See Lord Irnham v. Child, 1 Brown, Ch. 92 ; Hoioard v. Thomas, 12 Ohio, N. S. 201 ; The Bank of Westminster v. Wliite, 1 Maryland, Ch. 539; Ariz v. Grove, 21 Maryland, 456. More- over, where real estate is in ques- tion, the legislature have enacted that a promise shall not be valid unless it is reduced to writing, and signed by the party to be charged. This does not mean that facts may not be proved orally from which a trust will arise, but that where such facts do not exist, a trust shall not be founded on an oral promise. To make this rule eflfec- tual, it must be not only general, but universal. If any case can be taken out of it by showing that a promise accompanied the deed, every case may be. It is, as long experience has shown, ad- mirably calculated to diminish litigation, prevent perjurjr, and banish fraud ; and if there be any instance where it operates harshly on an individual, it is better that he should be postponed, than that the community should lose the advantage of having a path marked out in which everj' one may be se- cure. No one can sufler from its operation, who does not rely on a verbal assurance where law and usage require a writing, and a man who is so unwise as to take this course ought to suffer, unless he has been misled by falsehood or undue influence. Above all, it is the rule prescribed by the legislature, and if the wisdom of it were doubtful, the courts ought not to be wiser than the law. In the cognate case, where goods are sold on the faith of an unwritten guaranty, it has never been held, or even contended, that relief should be given on the ground of fraud, although the DYER V. DYER, 359 inference may be strong, if not irresistible, that the design of the guarantor was to induce the vendor to part with the goods, and then escape under cover of the statute. It was held in Collins v. Tillou, 26 Conn. 368, that a deed ceases to be conclusive when the land is sold and conveyed by the grantee, and that the grantor may then prove the trust and recover the proceeds in assumpsit. But this distinction can hardly be regarded as consistent with the rules of evi- dence or the object of the statute of frauds, which was to provide against the uncertainty of oral testimony. But such a trust may be established by the parol decla- land rations of the grantee after the has been converted into money ; Maffity. Bynd, 19 P. F. Smith, 383. It has been said that the rule which forbids the introduction of parol evidence to controvert a deed, does not apply where the trust is alleged by a third person, who not being a party to the instrument, may show that it was not made for a full or valuable consideration, or contradict any otiier recital or averment which it contains ; Porter V. May field, 9 Harris, 263 ; Blod- gett V. Aldrich, 103 Mass. 484. Hence the question is not so much as to the admissibility of the evidence as whether it goes far enough to sustain a trust. It is accordingly established under the decision in the principal case, that if it be shown, though orally, that the consideration moved from the complainant, a trust will result in his favor, although the deed was made to another. So it may be shown that a deed purporting to be made for a full and valuable consideration was in truth volun- tary, and that the grantee induced the grantor to execute it by prom- ising to hold the land in trust for the complainant ; Miller v. Pearce, 6 W. & S. 9T. We may now turn to the third head, that where the party to be affected with the trust confessedly gave value for the land. Here the consideration is consistent with and supports the deed, and a re- covery cannot be had, except on the ground of fraud. It is there- fore necessary to distinguish be- tween the cases where the acquisi- tion of the title is a breach of trust, and those where it is acquired with the knowledge of the com- plainant. A promise by A. to buy land and convey it to B., is not legally distinguishable from a promise to convey land which A. already holds ; Eisler v. Kisler, 2 Watts, 323, 326 ; Sheldon v. Ward- ing, 44 Illinois, 68; Holmes v. Holmes, Id. 168 ; Jackman v. Ring- land, 4 W. & S. 149; Dorsey v. Clarke, 4 Harris, 2 Johnson, 551 ; Green v. Drummond, 31 Mary- land, 11 ; Barnet v. Dougherty, 8 Casey,3Yl. "An agreement to con- vey a title to be acquired and paid for hereafter, may be specifically en- forced, if the externals of the con- tract be such as the statute of frauds allows of, but is no more a trust than is an agreement to pay a stipulated price for a title ac- quired already ; " Eisler v. Kisler, 2 Watts, 323, 326. The violation of such an agreement may be a 360 RESULTING TEUST. signal breach of faith, but it is one against which relief cannot be given consistentljr with the statute. There is a material difference where one agrees to procure the title for another, and takes the deed in his own name. Such an act is a manifest abuse of confidence, against which equity ought to re- lieve. It is intolerable that a man should go forward as the agent, confidential adviser, or attorney of another, and then take advantage of the opportunity to supplant him with the vendor. Such a case is clearly within the rule laid down in Keech v. Sandford, that a party" holding a fiduciary relation, shall not gain an advantage by indirect means at the expense of his prin- cipal. The trust results from the dereliction of dutj' on the part of the agent, and if that is established to the satisfaction of a chancellor, it is immaterial whether the evidence is written or oral. The strongest case is that of an attorney who purchases for himself in a matter where he has been consulted pro- fessionallj' ; Galbraith v. Elder, 8 Watts, 94 ; Gleavenger v. Beiniar, 3 W. & S. 486 ; Henry v. Raiman, 1 Casey, 354 ; Smith v. Brother- line, 12 P. F. Smith, 461, 469. Here the trust is universally con- ceded ; and this is conclusive of the principle, because every one who assumes to advise or act for another, is as much bound to good faith as if he were an attorney. Accordingly, where an agent em- ployed to procure a lease, took it in his own name, he was compelled to assign the term ; Lees v. Nut- tal, 1 Tamlyn, 282 ; 1 Russell & Mylne, 53 ; and the same rule was applied in Taylor v. Salmon, 4 Mylne & Craig, 134. It has indeed been said that a trust will not arise unless the agency is proved by written evi- dence, a7ite, Bartlett v. Pickersgill, 1 Eden, 51 "7 ; Barnet v. Dougherty, 8 Casey, 3T1, 3Y3 ; but the case is essentially different where one who is employed to effect a pur- chase, buys for himself in fraud of the principal. These decisions do not warrant the inference that a promise to buy for another, and hold the title until he is ready to pay for it, can give birth to a trust ; Barnet v. Dough- erty, 8 Casey, 3 '71. Strong, J., said, " It is fraud in the purchase which makes the holder of the title a trustee. Subsequent fraud, if any exists, no more raises a trust than does subsequent j^yment of the purchase-money. Setting up the sheriff's deed as an absolute conveyance of both the legal and the equitable interest was not a fraud from which the law implies a trust. It was nothing more than the violation of a promise, implied or express, which is of no avail to induce a chancellor to decree the purchaser to be a trustee." Fraud is, nevertheless, infinite in its variet}^ ; and it has been said that one reason why it should not be defined is, that if it were, new methods would be found beyond the line. See Soge v. Hoge, 1 Watts, 163, 211. See Stillman v. Ashdown, 2 Atkyns, 481 ; Webb v. Borke, 2 Schoales & Lefro}^, 666. Where a gross abuse of confidence is apparent, equity DYMR V. DYER. 361 will not be deterred by a regard for forms ; Seichrist's Appeal. 16 P. F. Smith, 231, 241. See Hidden v. Jordan, 21 California, 92; Sand- fosH V. Jones, 35 Id. 482 ; Price V. Reeves, 38 Id. 45T ; Sogen v. Heard, 3 Mississippi, 428. A man who pays for land and takes the deed in his own name, majr, therefore, be charged as a trustee for another who was not only a stranger to the conveyance and the consideration, but authorized or sanctioned what was done, and, although the presumption is strong against such a trust, it may still be overcome by clear proof that the transaction was marked by fraud. " Where," said Agnew, J., in Seichrist's Appeal, " one pro- cures a title, which he could not have obtained except by a confi- dence reposed in him, and abuses that confidence, he becomes a trus- tee ex maleficio." The case of Jenkins v. Eldredge, 3 Story, went on this ground, and the principle is clear, although it seems to have been ^nisapplied. It not unfrequently happens that land is exposed for sale under an execution, and bought in by some one who promises to convey it to the judgment debtor. If this is all, it is a mere contract, and invalid, unless reduced to writing ; Jaokman v. Ringland, 4 W. & S. 149 ; Fox v. Hefner, 1 Id. 3 1 2 ; Kisler v. Kisler, 2 Watts, 323. Kistter's Appeal, 2 P. P. Smith, 393. But there is at times something more. The promise is used to induce the debtor and his friends to refrain from satisfying the writ, or bidding the land up to its real value, and ignored or disregarded after tlie purpose is accomplished. " Had the ward," said Gibson, Ch. J., in Kisler v. Kisler, " reposed on the guar- dian's promise to purchase the land for him, the case might have gone in his favor on another ground. There would then have been a trust ex maleficio from the conduct of the guardian in keeping the ward back as a bidder, and perhaps getting the land at a cheaper rate by seeming to buy for him. Such a trust seems to be re- cognized in Lloyd v. Spiillett, 2 At- kyns, 148 ; and Peebles v. Beading, 8 S. & R. 492 ; and was actually enforced in Brown v. Dysinger, 5 Rawle, 408. It arises from the artifice of the party to be affected, and not from the contract. Gook V. Cook, 19 P. F. Smith, 443. A trust was decreed on this ground in Sogins v. Heard, 31 Mississippi, 426 ; Combs v. Little, 3 Green's Ch. 310, and Marlatt v. Warwick, 3 C. E. Green, 108 ; and the cases of Brown v. Dysinger, 5 Rawle, 408, and Broivn v. Lynch, 1 Paige, 141, proceed on the same principle. It is, notwith- standing, a questionable branch of equity, inviting the fraud and perjury which the statute was in- tended to prevent. " It would," said Rogers, J., in Jackman v. Ringland, 4 W. & S. 149, "be of the most mischievous conse- quence if a purchase at a judicial sale could, at any distance of time, have an absolute turned into a defeasible conveyance by parol evidence." It may be added that if the defendant in the judgment 362 RESULTING TRUST. has the means, he should pay his creditors ; if he has not, a secret trust in his favor is a wrong done to them. Such a purchase may, notwithstanding, be attended with circumstances, which point une- quivocally to a fraud that should not be allowed to succeed. A purchaser at a sheriff's sale some- times disarms competition by de- claring pviblicly that he is buying for the person whose property has been seized, and will convey to him on being reimbursed. This is a manifest fraud on the judgment creditors of the latter, for which they may seek redress by bill ; but the equity of the defendant in the judgment is much more ques- tionable. If A. procures a deed from B., by falsely representing that he is buying for C, a trust will ai'ise in favor of the latter, be- cause B., being entitled to give or withold, may prescribe the condi- tions, but this cannot be said where land is sold by the sheriff under legal process. It is, notwithstand- ing, established in Pennsylvania and some of the other States. A different view prevails in South Carolina, where it has been held that an oral promise to buy land at a judicial sale, and hold it for the owner's use, cannot be en- forced as a trust, although a trust may be deduced where such a pur- pose is declared as a means of in- ducing bidders to stand aloof, and the land obtained for less than it is worth ; McDonald v. May, 1 Richardson's Eq. 91 ; Schmidt v. Gafwood, 2 Id. 162 ; Johnston v. LaMoUe, 6 Id. 341. In Schmidt V. Gafwood, the court said : " It is alleged that this purchase was made at a sacrifice, under an agree- ment on the part of the plaintiff, that the family should have the benefit of it. The evidence rests in parol. It is argued that the family, trusting to the agreement, permitted the plaintiff to purchase at a sacrifice ; that to allow him to retain the property under feuch circumstances, would encourage fraud ; and that, upon this distinct ground, independently of the Stat-- ute of Frauds, a trust should be decreed. Undoubtedly there are cases, (such as M'' Donald v. May, 1 Rich. Eq. 91,) where a party, who enables himself to purchase at an under rate, by representing that he is buying for another, is liable to have his purchase set aside for fraud. These are cases where competition is fraudulently reduced or destroyed. In such cases, it matters not whether there was an agreement or not. " Indeed, in the latter case, where, of course, the representa- tion is wholly false, that circum- stance serves only to enhance the fraud complained of. Such cases as these, steer entirely clear of the Statute of Frauds. The evidence of the purchaser's representations is received, not for the purpose of substantiating the supposed agree- ment, but for the purpose of show- ing the means by which he effected his fraudulent design, and when re- ceived, it is employed not for the purpose of enforcing the contract, but for that of setting it aside. " But no such circumstances have been developed in this case. The fraud insisted on, consists DYER V. DYER. 363 merely in the non-fulfilment of the alleged agreement, and depends, of course, entirely on the question, ■whether there was in fact an agree- ment to be performed, and that preliminary fact, the statute will not allow to be established by parol ;" See Peebles v. Beading, 8 S. & R. 484 ; Brown v. Dy singer, 5 Rawle, 408 ; Brown v. Lynch, 1 Paige, 14T ; By an v. Dox, 34 New York, 30t ; Cox v. Cox, 5 Rich- ardson, Eq. 492 ; Langhorne v. Payne, 14 B. Monroe; Greutoher V. Lord, 4 Bush, 380 ; Trapnall v. Brown, 19 Arkansas, 89. It is immaterial under these de- cisions that the purchaser is not acting for, or authorized by the owner of the land, if he declares that he is buying for his use, and thus obtains the property at a lower figure. 8o one who induces another whose property is going to be sold, to stay away by prom- ising to bid for him, may be af- fected with a trust, although he does not announce his intention publicly or at the sale ; Baugh v. Wentz, 5 P. F. Smith, 360 ; Boijn- ton V. Housler, 23 Id. 453. In Sheriff v. Neal, 6 Watts, 534, the defendant agreed to redeem land which had been sold for taxes, and hold the title for the former owner, and so informed the tax commissioners, and it was held that the execution of a deed by them on the faith of the assur- ance, gave birth to a trust which might be enforced, although tlie evidence was merely oral. The principle is the same where one foregoes an estate or interest in land for the purpose of enabling another to become the purchaser, on the faith of the latter's prom- ise to hold the property for his benefit, or give a deed. In Plu- mer v. Beed, 3 Wright, 46, the defendant entered into possession of a tract under a written contract of sale, and built a house on one of the lots. It was subsequently agreed between him, the vendor, and the plaintiff, that the contract should be rescinded, and that the plaintiff should buy the tract and convey the house and lot to the defendant. The vendor thereupon conveyed the tract to the plaintiff, and it was held that a resulting trust arose in favor of the defend- ant, who had contributed his estate in the land, and was as much enti- tled to protection as if he had parted with value in any other form. In Hidden v. Jordan, 21 Cali- fornia, 92, the complainant. Hid- den, was in possession of a farm which he had improved and culti- vated, but the legal title was out- standing in the hands of one Bis- sell, who was willing to part with it for $6,000. The complainant, who had only $2,000, gave it to the defendant on the faith of a promise that he would furnish the remaining $4,000, and obtain a conveyance from Bissell, in trust to execute a deed to the plaintiff, when the latter should be able to repay the amount advanced. Bis- sell accordingly convej'ed to the defendant, who subsequently re- pudiated his contract with the plaintiff, and claimed to hold the land as his own. It was contended under these circumstances that if a 364 RESULTING TRUST, trust arose it could only be in tlie ratio of the sum which the plaintiff had actually paid, and that all beyond was an oral contract which could not be enforced con- sistently with the statute. Judg- ment was, notwithstanding, given for the whole of the land. "What the defendant undertook to do," said Cope, J., " was to purchase the land ; not a part of it, but the whole ; not for himself, but for the plaintiff. What he is attempting to do is to deprive tlie plaintiff of benefit of tlie purchase. This, ac- cording to the doctrine of Bartlett V. Pickersgill, 1 Eden, 515, 4 East, 5'I'7,noteb., fflMfe,he might succeed in doing, if the whole of the pur- chase-money had been paid by him- self, but as the plaintiff paid a por- tion of it, he is entitled to insist on the agreement. The money was paid witli the understanding that he was to have the entire estate, and the defendant agreed that he should liave it, became his agent for the purchase, and bought the land. The plaintiff cannot be re- quired to take less than the whole, for that was his bargain ; to force him into the position of a judg- ment purchaser would be to legal- ize a fraud." The question may be viewed in another aspect. Where an agent who has received a sum, which proves to be insufficient, to be em- ployed in buying land, agrees to advance the residue, and hold the title until he is repaid, the trans- action is virtually a loan to the principal, and the whole consid- eration may consequently be re- garded as moving from him. That the agent pays the price in full out of his own funds, does not neces- sarily exclude the operation of this principle. Sheriff v. Neal^ 6 Watts, 534,542. The defendant, said Ken- nedy, J., proposed " to the plain- tiffs to advance the money, and take a deed from the commis- sioners of the county, in his own name, as a security that they would make the amount good, so that the real transaction upon which the commissioners conveyed the land to him would appear to have been as much like a loan of monej' to the plaintiffs, as any- thing else, and the deed taken merely as a securitjr for the re- payment of it." TOLLET V. TOLLET. 365 *TOLLET V. TOLLET. [*227] DE TERM S. MICHAELIS, 1728. [HEPOETED 2 P. WMS. 489.1] Defective Execution of a Power aided.] — Husband has a power to make a jointure to his wife by deed : he does it by will, and she has no other provision ; equity will make this good. Equity loill supply the ivant of a suirender of a copyhold, in case it be devised for payment of debts, or for a ivife, or for younger children ; so also will it help a defective execution of a piower ; hut not a non- execution. The husband, by virtue of a settlement made upon him by an ancestor, was tenant tor life, with remainder to his first and other sons in tail male, with a power to the husband to make a jointure on his wife by deed under his hand and seal. The husband having a wife, for whom he had made no pro- vision, and being iu the Isle of Man, by his last wilt, under his hand and seal, devised part of his lands within his power to his wife for her life. Objection. — This conveyance, being by a will, is not warranted by the power, which directs that it should be by deed ; and a will is a voluntary conveyance, and, therefoi'e, not to be aided in a Court of Equity. Sir Joseph Jekyll, M. R. — This is a provision for a wife who had none before, and within the same reason as a provision for a child not before provided for f and as a Court of Equity would, had this been the case of a copyhold devised, have supplied the want of a surrender ; so where there is a defective execution of the power, be *it either for payment of debts or provision r^.^oo-i for a wife or children unprovided for, I shall equally "- ~ -' supply any defect of this nature. The ditference is betwixt a non-execution and a defective execu- tion of a -power ; the latter will always be aided in equity, under the circumstances mentioned, it being the duty of every man to pay his debts, and a husband or father to provide for his wite or child. But this Court will not help the non-execution of a power, since it is against the nature of a power, which is left to the free will and election of the party wnether to execute or not ; for which reason equity will not say he shall execute it, or do that for him which he does not think fit to do himself. 1 S. C, Mos. 46 ; 2 Eq Ca. Ab. 233, pi. 16 ; 633, pi. 10. ' Equitable relief will be granted, although the wife or child seeking it is pro- vided for. Vide Kettle v. Townsend, 1 Salk. 1»7 ; Smith v. Baker, 1 Atk. 385 ; Hervey v. Hervey, 1 Atk. 568 ; Chapman v. Gibson, 3 Bro. C. C. 229. 366 EXECUTION OF POWER. i^ — And ill this case, the legal estate being in trustees, they were decreea to convey an estate to the widow for life iu the lands devised to her by her husband's will. Wherever the formalities required by a power are not strictly com- plied with, the appointment will, at law (unless made valid by statute, see post, pp. 239, 240), be void, and the property which is the subject of the power will consequently go as in default of appointment. Courts of Equitj'', however, although not holding the power to be well executed, will, in favour of certain parties, aid the defective execution of a power by compelling, as in the principal case, the person having the legal interest to transfer it in the manner pointed out by the de- fective appointment. The principle upon which Courts of Equity act in these cases is thus stated by Lord Alvanley, M. R., in the case of Chapman v. Gibson, 3 Bro. C. C. 229 : " I have looked," said his Lordship, " at all the cases I can, to find on what principle this Court goes in supplying a defect, and altering the legal right ; it is this : Whenever a man, having power over an estate, whether ownership or not, in discharge of moral or natural obligations, shows an intention to execute such power, the Court will operate upon the conscience of the heir, to make him perfect this intention." In the same case his Lordship remarked, " that the execu.tion of a power, and a surrender of a copyhold, go hand in hand, precisely on the same ground." It may, therefore, be considered as a settled rule, that the Court inter- poses its aid upon the same principles and under *similar cir- L -I cumstances in cases of a want of a surrender of copyholds, and a defective execution of a power. See also Eodgers v. Marshall, 11 Ves. 291. Surrenders of copyholds to the use of wills were rendered unneces- sary for the future by 55 Geo. 3, c. 192, repealed by 1 Tict. c. 26, which, however, substitutes similar provisions. See sects. 3, 4, and 5. Although there are decisions leading to an opposite conclusion (Bad- gers V. Marshall, 11 Ves. 295 ; Ellis v. Nimmo, L. G., temp. Sugd. 338), it is now clearly settled, in accordance with the inference which may be drawn from the remark of the Master of the Rolls in the prin- cipal case, that equity will not supply a surrender in the case of a deed at the instance of persons having merely a meritorious consideration, any more than it will carry into execution a voluntary contract at the instance of the same persons (Jefferys v. Jefferys, Cr. & Ph. 138 ; Tatham v. Vernon, 29 Beav. 604) ; secus, where the consideration is valuable: Nandike v. Wilkes, Gilb. Eq. Rep. 114; Jennings v. Moore, 2 Vern. 609 ; Cotter v. Layer, 2 P. Wms. 623. See Price v. Price, 14 Beav. 604. Although, however, the jurisdiction of equity to supply surrenders TOLLET V. TOLLET. 867 of copyholds is now seldom exercised (see Freeman v. Freeman, Kay, 479), nevertheless, since equity aids defective executions of powers upon precisely the same principles, and for and against the same per- sons, it will still be useful to consider the cases upon supplying the surrenders of copyholds. See Sayer v. Sayer, Innes v. Sayer, 7 Hare, 387. As to the classes in whose favour equity will aid a defective execu- tion of a power or supply a surrender.'] — First, equity will aid pur- chasers {Fothergill v. Fothergill, 2 Freem.,257 ; Jackson v. Jackson, 4 Bro. C. C. 462 ; Sergeson v. Sealey, 2 Atk. 414 ; 9 Mod. 390 ; Wade v. Paget, I Bro. 0. C. 363 ; Burrell v. Crutchley, 15 Ves. 544 ; Affleck v. Affleck, 3' Sm. & Giff. 394 ; M re Dykes' Estate, 1 L. R. Eq. 337) ; and mortgagees ( Taylor v. Wheeler, 2 Vern. 564 ; Jennings v. Moore, 2 Vern. 609) ; and lessees (Campbell v. Leach, Amb. 740 ; Shannon v. Bradstreet, 1 S. & L. 52 ; Doe v. Welter, 7 T. R. 478 ; Willes, 176; Dowell V. Dew, 1 Y. & C. C. C. 345 ; King v. Boney, 5 Ir. Ch. Rep. 64, 72) ; mortgagees and lessees being purchasers pro tanto. And it has been laid down, " That in order to constitute a purchaser in whose favour a defective execution of a power can be aided, there must be a consideration and an intention to purchase, either proved or to be pre- sumed," per Sir George Turner, Y. C, 9 Hare, 769. Secondly, equity will aid creditors. Thus, where a person directed his copyhold estate to be sold for payment of debts, and *died without having surrendered it to the use of his will, equity de- '- -' creed the surrender to be supplied, and the copyhold estate to be sold. See Bixhy v. Eley, 2 Bro. C. C. 325 ; S. C, 2 Dick. 698 ; Ithell v. Beane, 1 Ves. 215 ; Tudor v. Anson, 2 Ves. 582 ; Fothergill v. Fother- gill, 2 Freem. 257. In Wilkes v. Holmes, 9 Mod. 485, power was given, in a marriage settlement, to the husband and wife to raise 2000Z. out of certain lands of the wife's ; and if no part should be raised in the life of the husband and wife, then it should be lawful for the survivor of them by will duly executed, to raise that sum, for the purpose of paying the debts of the husband and wife, or either of them, or making a provision for younger children. The wife, upon the death of her hus- band, defectively executed the power ; it was objected, that the debts which were to be paid by means of the power were the debts of the husband, whereas the estate was originally the wife's. However, Lord Hardwicke supplied the defect, observing that the debts were expressly provided for by the deed of settlement. Where, moreover, a person has a general power of appointment over property, which in default of appointment is given over, if he exer- cises such appointment in favour of volunteers by deed, or by will, equity will interfere and intercept such property in aid of the assets of the appointer for the benefit of his creditors, but if he does not exer- cise his power equity cannot interfere, and the persons entitled in de- 368 EXECUTION OF POWER. fault of appointment will be entitled to the property. See Thompson V. Towne, 2 Vern. 319 ; Holmes v. Goghill, 1 Yes. 499, 12 Ves. 206 ; Fleming v. Buchanan, 3 De G. Mac. & G. 976 ; and the note to Silh V. Prime, 2 Lead. Cas. Eq., and the cases there cited. Thirdly, charities will be aided. " I take," says Lord Northington, " the uniform rule of this Court, both before, at, and after the Statute of Elizabeth, to have been, that where the uses are charitable, and the person has in himself full power to convey, the Court will aid a defec- tive conveyance to such uses :" Attorney -General v. Tancred, 1 Eden. 14 : see also Piggot v. Penrice, Prec. Ch. 411 ; Com. Rep. 250 ; Attor- ney-General v. Sibthorpe, 2 Russ. & My. Ill n. In Innes v. Sayer (T Hare, 3'7'7), a testatrix had power to dispose of certain sums of stock by her last will and testament, or any writing purpiorting to be her last will and testament, to be by her signed and published in tlie presence of, and attested by, two or more credible witnesses. The testatrix by her will, dated in January, 1833, unattested, and not referring to the power, gave certain sums of stocks to charities. She afterwards made eight other unattested testamentary papers, giving legacies, or revok- ing legacies, previously inserted, the last of which papers was dated the 1st *of September, 1836 ; and at the foot of it she had L -' written as follows : — " This will has not been witnessed, as I intend, if I am spared, to write it out fair." The testatrix died in June, 1844. It was held by Sir James Wigram, V. C, that tlie defect in the execution of the power ought to be supplied in equity in favour of the charities. " The principle," said his Honor, " upon which the Court appears to go is this, that if a person has power, by his own act, to give property, and has, by some paper or instrument, clearly shown that he intended to give it, although that paper, by reason of some informality, is ineffectual for the purpose, yet the party having the power of doing it bj^ an effectual instrument, and having shown his intention to do it, the Court will, in the case of a charity, by its de- cree make the instrument effectual to do that which was intended to be done. It is not for me to give any opinion, whether the principle is right or not. There appears to be very high authority for the applica- tion of the jDrinciple, independently of the Statute of Elizabeth ; and it has been applied since the Statute." See S. C, affirmed on appeal, 3 Mac. & G. 606, Tudor on Charitable Trusts, p. 31, 255, 2nd edit. Fourthly, equity will aid a wife and a legitimate child, although 'they claim merely as volunteers, upon a meritorious consideration ; as, for instance, upon a provision made for them after marriage : Fothergill V. Fothergill, 2 Freem. 257 ; Sarth v. Blanfrey, Gilb. Eq. Rep. 166 ; 'Sneed v. Sneed, Amb. 64 ; Churchman v. Hervey, Amb. 335 ; Medivin V. Sandham, 3 Swanst. 686 ; Affleck v. Affleck, 3 Sm. & Giff. 394 ; Proby V. Landor, 28 Beav. 504. " In cases," says Lord Hardwicke, " of aiding the defective execution of a power, either for a wife or a TOLLBT V. TOLLET. 369 child, whether the provision has been for a valuable consideration has never entered into the view of the Court, but being intended for a pro- vision, whether voluntary or not, has been always held to entitle this Court to give aid to a wife or child to carry it into execution, though defectively made : " Hervey v. Hervey, 1 Atk. 56 1 ; Barron v. GonstU' bile, 1 Ir. Ch. Rep. 46t. Although an inference to the contrary might be drawn from the principal case, it is now clearly established that a wife or child, although provided for, will be entitled to the aid of equity. " I am of opinion," says Lord Hardwicke, in Hervey v. Hervey, " that the rule as laid down by the defendant's counsel, that a wife or child, who comes for the aid of this Court to supply a defective execution of a poweri must be entirely unprovided for, is not the right rule of the Court. I think the general rule, that the husband or a father are the proper judges what is a reasonable provision for a wife or child, is a good and invariable* rule: 1 Atk. 568 ; see also Kettle v. Townsend, 1 r:|-oqo-| Salk. 181 ; Smith v. Baker, 1 Atk, 385 ; Chapman v. Gibson, 3 Bro. C. C. 229. To no other persons, except a wife or legitimate child, will the aid of the Court be granted, upon the ground of the provision being for a meritorious consideration ; neither to a husband ( Watt v. Watt, 3 Ves. 244; Moodie v. Beid, 1 Madd. 516; Hughes v. Wells, 9 Hare, 149, 769) ; nor to a natural child {Fursaker v. Robinson, Prec. Ch. 4*75 ; Tudor V. Anson, 2 Ves. 582) ; nor to a grandchild {Bland v. Bland, 2 Cox, 349 ; Perry v. Whitehead, 6 Ves. 544; and 1 Watk. Copyh. 136, 138) ; nor to a father {Sloane v. Lord Cadogan, App. to Sug. on Powers, No. 9, Yth edit.) ; nor to a mother, brother, or sister (Goodwyn V. Goodwyn, 1 Ves. 228 ; Goring v. Nash, 3 Atk. 189, overruling Watts V. Bellas, 1 P. Wms. 60) ; nor to a nephew or niece (Strode v. Bussell, 2 Vern. 621, 625 ; Marston v. Gowan, 3 Bro. C. U. 110) ; nor to a cousin ( Tudor v. Anson, 2 Ves. 582) ; not to a settlor defectively executing a power in his own favour ( Ward v. Booth, cited 3 Ch. Ca. 69, 92 ; Ellison v. Ellison, post, 245, 6 Ves. 656). A fortiori equity will not afford its aid to a mere volunteer, in no way related to the per- son defectively executing a power : Smith v. Ashton, 2 Freem. 309 ; Sergeson v. Sealey, 2 Atk. 415 ; Godwin v. Kilsha, Amb. 684. It is clearly settled that a defective appointment by a married woman will be aided {Pollard v. Grenvil, 1 Ch. Ca. 10 ; Dowell v. Dew, 1 Y. & C. C. C. 345 ; Doe v. Weller, 1 T. R. 480 ; Stead v. Nelson, 2 Beav. 245) ; although, by some extra-judicial observations of Sir Thomas Plumer, in Martin v. Mitchell, 2 J. & W. 424, this appears to have been doubted. See also Dillon v. Grace, 2 S. & L. 456. It seems that in the United States Chancery will not distinguish between children and grandchildren in the exercise of its jurisdiction to correct an oversight or mistake in the VOL. I. — 24 370 EXECUTION OF POWER. execution of a power for their benefit. See Huss v. Norris, 13 P. F. Smith, 372; Watts v. Bellas, 1 Pearce, 60. Next, as against whoTn equity will aid a defective execution of a power, or supply a surrender/] — It is clear from the principal ease, that aid will be granted as against the remainderman who takes, although by purchase, subject to the power {Coventry v. Coventry, 'i P. Wms. 222 ; Shannon v. Bradstreet, 1 S. & L. 52 ; Howard v. Carpen- ter, 11 Md. 202, 259) ; and also in general as against an heir-at-law or customary heir ; Smith v. Ashton, 1 Ch. Ca. 263, 264. A defective execution of a power has been aided in equity in favour of a sister as against her brothers who were provided for, and who in default of appoiatment would have participated in the property : Morse V. Martin, 34 Beav. 500. It has, however, been a question of much difficulty, whether equity will afford its aid as against an heir totally unprovided for. In Chap- man V. Gibson, 3 Bro. C. 0. 229, Lord Alvanley thought that the heir, being a son of the testator unprovided for, could not be relieved p-^nnq-i *against. " The principle," said his Lordship "must be this, that the testator being under an obligation to do an act, we will compel the heir to perfect it ; but we will not compel him to fulfil an obligation at the expense of another ; and if the testator has totally forgot to make any provision for his eldest son, this shall be an answer to the claim of the wife, or other children." Lord Rosslyn thought that the Court ought never to enter into the consideration of the heir being or not being provided for. " I confess," observes his Lordship, "it appears to me there is no rule at all, unless the Court takes it upon the relation in which they stand. Otherwise, it is all loose and arbi- trary. It never entered into the mind of the Court to consider that argument, where the want of a surrender was to be supplied for credi- tors : but the same sort of argument might be used there — that the heir was starving, the creditors opulent and severe. Those circumstances are not fit to be considered by the Court. The Court must go upon a certain line, which is very obvious — that, where the will expresses an intention to do that which legally and morally the testator ought to do, so simple a form as supplying the want of a surrender shall not im- pede the performance of that d-atj : " Hills v. Downton, 5 Yes. 564. But, it was unnecessary to decide that point in Hills v. Downton, for the heiresses-at-law, against whom the want of a surrender was supplied, were married, and, therefore, in Lord Rosslyn's opinion, provided for. Lord Alvanley, nevertheless, still retained the opinion he ex[)ressed in Chapman v. Gibson. See his observations on Hills v. Downton, Sugd. Pow. vol. ii., App. No. xxiv., Tth ed. In Braddick v. Mattock, 6 Madd. 363, Sir J. Leach, V. C, said, " This Court will not supply a surrender against the heir-at-law unprovided for ; but it considers the parent as the best judge of the provision of that heir, and will not ex- TOLLET V. TOLLET. 371 amine the siiflBciency of the provision, unless, perhaps in a case in -which it may be challenged as illusoiy." In Badgers v. Marshall, 17 Ves 294, Sir W. Grant, M. R., seemed inclined to think, that, as against a grandchild, being the heir-at-law, and unprovided for, the want of sur render ought not to be supplied, and directed an inquiry as to whether he was provided for. But see Hills v. Downton, 5 "Ves. 565. It is clear, however, that a surrender will be supplied as against a collateral heir, whether provided for or not ; as a person is not sup- posed under any obligation to provide for a collateral heir ; Fielding v. Winwood, 16 Ves. 90 ; see also Chapman v. Gibson, 3 Bro. C. C. 229 ; Snith V. Baker, 1 Atk. 385. As to the nature of a defect which will be aided.'] It may be laid *down as a general rule, that were the intention to execute a power is sufficiently declared, but the act declaring the inten- L J tion is not an execution of the power in the form prescribed, there the defect will be supplied in equity : Shannon v. Bradstreet, 1 S. & L 63. Thus equity will aid a defect which arises from the instrument itself being informal or inappropriate, if the intention to execute the power appear clearly in writing ; Lover v. The Sierra Nevada Mining Co., 32 California, 653, where, for instance, a donee of a power covenants to execute it {Fothergill v. Fothergill, 2 Freem. 256 ; Coventry v. Coven- try, Franc. Max., the last case ; S. C, 2 P. Wms. 222 ; Sergeson v. Sealey, 2 Atk. 414 ; Sarth v. Lord Branfrey, Gilb. Eq. Rep. 166) ; — or when, by his will, he desires the remaindermen to create the estate authorized by the power ( Vernon v. Vernon, Amb. 1) ; — or if he enters into an agreement to execute it {Shannon v. Bradstreet, 1 S. & L. 52 ; Mortlock V. Buller, 10 Ves. 292; Coventry v. Coventry, Franc. Max., the last case; Lowry v. Dufferin, 1 Ir. Eq. Rep. 281 ; Lowell v. Lew, 1 Y. & C. C. C. 345) ; — even although he keep the agreement in his own possession (King v. Roney, 5 Ir. Ch. Rep. 64, 11) ; — or if he promises by letters to grant an estate, which he could only do by the exercise of his power: Campbell v. Leach, Amb. 140 ; Sugd. on Powers, App. No. XXV., Yth ed. ; and see Blake v. French, 5 Ir. Ch. Rep. 246. So an agreement to sell land to a Railway Company at a sum to be fixed by arbitrators, will be aided in equity as an informal execution of a gen- eral power of appointment : In re Lykes' Estate, 1 L. R. Eq. 33Y. A recital by the donee of a power, in the marriage settlement of one of his daughters, who was one of the objects of the power, that she was entitled to a share of a sum to which she could only be entitled by his appointment, has been held sufficient evidence of his intention to exe- cute the power, and was therefore aided as a defective execution of a power: Wilson v. Piggott, 2 Ves. jun. 351; Poulson v. Wellingt07i,2 P. Wms. 533. So also where a donee of a power, in an answer to a bill in Chancery, states that he " appoints, and intends, by writing in due 372 EXECUTION OF POWER, form, to appoint : " Garter v. Garter, Mos. 365 ; and see Fortescue v. Gregor, 5 Ves. 553. A parol contract, however, to execute a power, is void, as against a remainderman, although, in the case of a parol contract to grant a lease under a power, the lessee may have expended money in improve- ments, on the faith of the parol contract (Garter v. Garter, Mos. 3Y0 ; Shannon v. Bradstreet, 1 S. & L. 12; Blore v. Sutton, 3 Mer. 231 ; Lowry v. Lord Dufferin, 1 Ir. Eq. Rep. 281 ; and see Morgan v. Mil- man, 10 Hare, 219 ; 3' De G. Mac. & G. 24, 32, 33) ; O'Fay v. Burke, r^goK-i 8 Ir. Ch. *Rep. 2^5 ; unless, after the death of the tenant for life, the remainderman lie by and suffer the lessee to continue to improve the estate: Stiles v. Gowper, 3 Atk. 692. Equity will afford its aid, where there has been a defective execution by a formal or appropriate instrument: thus, if the instrument, whether it be a deed or will, is by the power required to be executed in the presence of a certain number of witnesses, and it is executed in the presence of a smaller number ; or if it is required to be signed and sealed, and sealing is omitted, equity will supply the defect : Wade v. Faget, 1 Bro, C. C. 363; Gockerell v, Gholmeley, 1 Russ. & My. 424; 1 C. & F. 60. And in wills not coming within the operation of the late Wills Act, an appointment of personalty, required to be attested by two witnesses, has been aided, though attested by no witness : Lti- cena v. Lucena, 5 Beav. 146. So, also, where a power of appointment over land was required to be exercised by will duly executed, and a will was made in exercise of the power, attested by two witnesses only. Lord Hardwiclfe was of opinion that the will was not duly executed within the meaning of the power, but that the Court ought to aid the defective execution in favour of the creditors and younger children, considering their claim as under the settlement, and the mode of exe- cuting the povver as depending on the settlement, and not on the Stat- ute of Frauds, except as the words, " duly executed " were construed by reference to that statute. If this had been a voluntary execution of the power, and not for the payment of debts, or for valuable or meri- torious consideration, it must have stood on its own ground, and would not have been supported ; Wilkie v. Holmes, 1 S. & L. 60, n. ; iS. G. reported under the name of Wilkie v. Holme, 1 Dick. 165 ; S. G., 9 Mod. 485 ; and see Smith v. Ashton, 1 Ch. Ca. 263 ; Morse v. Martin, 84 Beav. 500. See, however, now, 1 Vict. c. 26, ss. 9, 10, whereby it is enacted, " that no will shall be valid unless it shall be in writing and executed in manner thereinafter mentioned ; that is to say, it shall be signed at the foot or end thereof, by the testator, or by some other per- son in his presence and by his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will, in the presence of the testator, but no form of TOLLET V. TOLLBT. 873 attestation shall be necessary ; " and " that no appointment made by will in exercise of any power shall be valid, unless the same be execu- ted in manner thereinbefore required ; and every will executed in man- ner thereinbefore required shall, so far as respects the execution and attestation thereof, be a valid execution *of a power of appoint- rn:non-i ment by will, notwithstanding it shall have been expressly re- quired that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity." A power will, as in the principal case, be aided, if it has been execu- ted by a will, when it ought strictly to have been executed by deed : Sneed v. Syieed, Amb. 64 ; Mills v. Mills, 8 Ir. Eq. Rep. 192. In Hervey v. Hervey, 1 Atk. 561, Barnard, 103, a power was given to the husband to make a jointure of such of the lands in a deed as he thought proper, not exceeding 600L a year. The husband by succes- sive deeds charged all the lands with rent-charges exceeding 600Z. a year. Lord Hardwicke supplied in favour of the wife the defect occa- sioned by the excessive execution of the power. Upon the same prin- ciple in Baron v. Constabile, Y Ir. Ch. Rep. 46'7, where the power was to charge a jointure not exceeding 600L a year by deed or will, and the donee of the power devised instead of charging a jointure, the devise was upheld as a valid execution of the power. So in Bruce v. Bruce, 11 L. R. Eq. 311, by articles on the marriage of Ann Bruce (then Ann Daniel) followed by a disentailing assurance, an estate was conveyed in trust for the children of the marriage as Ann Bruce should by deed appoint, and in default of appointment for such children equally. By a subsequent assurance, which was inoperative, Ann Bruce purported to put an end to the former power and to confer upon herself a general power of appointment over the same estate. She married a second time, and died leaving three children by the first mar- riage and two by the second, and having made her will, whereby with- out any reference to the power in the marriage articles, pursuant to the alleged general power, and in exercise of every other power enabling her, she purported to appoint the said estate to her eldest son by the first marriage, charged with a sum of 3000L in favour of all the children by both marriages other than the eldest son. It was held by Jjord Ro- milly, M. R., that the will operated as a valid exercise of the power in the articles, and that the eldest son was entitled to the estate, subject to raising the sum of 3000Z. for the other two children of the first marriage. But equity will not aid a defective execution of a power, if the in- tention of the author of the power would be thereby defeated. Thus, although there is no doubt that a Court of equity will aid the defec- tive execution of a power in favour of a creditor or purchaser, although the donee be a married woman (ante, p. 232), the Court, in such cases, 374 EXECUTION OF POWER. must be satisfied that the formalities which *have not been ob- •- -' served, are no more than matters of form ; and that the donee of the power has not by their non-observance been deprived of any of the protection which the due exercise of the power would have afforded her. For instance in Beed v. Shergold, 10 Yes. SYO, where a lady, entitled under a devise to copyholds for life, with a power to appoint them by will, sold and surrendered them to a purchaser, Lord Eldon, held, that the purchaser could not be aided in equity. " The testator,'' said his Lordship, " did not mean that she should so execute her power — he intended that she should give by will, or not at all ; and it is impossible to hold, that the execution of an instrument or deed, which, if it availed to any purpose, must avail to the destruction of that power the testator meant to remain capable of execution to the moment of her death, can be considered in equity an attempt in or towards the execution of the power." And the Courts look with especial jealousy on any such transaction, in which the wife may have acted under the influence of her husband. Thus in Hopkins v. Myall (2 Russ. & My. 86), on a marriage, a set- tlement had been made of the wife's property to herself for life to her separate use, with remainder as she should appoint by any writing un- der her hand, attested by two witnesses, and for default of appointment to the children of the marriage. The trustees upon the joint applica- tion of the husband and wife, by a letter not attested by any witnesses, parted with the trust fund ; it was held by Sir John Leach, M. R., that the trustees were bound, after the death of the wife, to make good the trust fund for the children. " The ceremonies," said his Honor, " required by the settlement were introduced for the express purposes of protecting the wife against the influence of her husband, and are matters of substance and not of form ; and without an adherence to those ceremonies, the interests of the children could not be defeated." See, also, Thackwell v. Gardiner, 5 De Gr. & Sm. 58 ; and Majoribanks V. Hovenden, 6 Ir. Eq. Rep. 238. So an appointment not made within the time prescribed by the donor of the power will not be aided in Equity, where the time within which the appointment was to be made, was not a mere matter of form, but of the substance and essence of the power. See Cooper v. Martin, 3 L. R. Ch. App. 47. Moreover the Court will not aid a defective instrument, where there does not appear thereby to have been on the part of the donee of the power a distinct intention to execute it. See Garth v. Townsend, 1 L. R. Eq. 220 ; there Mrs. Garth having power to appoint funds amongst l-^__ -, her children by deed, or by her last *will in writing, or any writing purporting to be or being in the nature of her last will, or any codicil thereto, to be signed and published in the presence of, and to be attested by, two credible witnesses, died intestate ; but left TOLLET V. TOLLET. 375 in an envelope, addressed to her son, an unattested memorandum (signed by herself and dated eight years before her death), "for my sons and daughters. Not having made a will, I leave this memoran- dum, and hope my children will be guided by it, though it is not a legal document. The funds I wish divided as follows " (and after ap- portioning the funds among her children, and making a bequest to them out of another fund, and a gift of the residue, she thus ends the memorandum) : — " this paper contains my last wishes and blessings upon my dear children, and thanks for their love to me." It was held by Sir W. M. James, V. C, that the Court could not. aid any defects in the execution of the memorandum, so as to give it validity as an ap- pointment. " The true test," said his Honor, " is that mentioned by Mr. Osborne Morgan : is there a distinct intention to execute the power ? Now, here the persons to take and the amount to be taken, are sufficiently pointed out, but where the instrument fails is in inten^ tion to execute the power. Mrs. Garth purposely abstained from execut- ing it. She simply wished her children to be quite unfettered, saying, ' I tell you my wishes, but I do not inean to tie you up by any legal document. I know I have power to appoint these funds, but I do not exercise that power.' The jurisdiction of the Court is to supply de- fects occasioned by mistakes or inadvertence : not to supply omissions intentionally made." Formerly when trustees under a common power of sale and exchange sold an estate without the timber, such exercise of the power was held not only to be invalid at law but also in equity, where the defect in the execution could not be aided. Thus, in Gockerell v. Gholmeley, 1 Russ. & My. 418, where an estate was devised to a trustee and his heirs, to the use of A. for life, without impeachment of waste, and a power of sale, with the consent of the tenant for life, was given to the trustee, the trustee, with the consent of the tenant for life, sold the estate under the power, without the timber, which was to be taken at a valuation ; at law the power was held to be badly executed ; and, upon a bill being filed in equity for relief by the purchasers of the estate. Sir J. Leach, M. R., held, that they were entitled to none. " The plaintiffs," said his Honor, " call upon this Court to supply the defect in the execution of the power. A Court of equity will, in favour of persons standing in the situation of the plaintiffs, supplj' a defect in the execution of a power which consists in the *want, of some circumstance re- (-^^npn-, quired in the manner of execution, as the want of a seal, or of a ^ -' sufficient number of witnesses, or where it has been exercised by will instead of a deed. But here it is at law decided, that there was no power in the trustees to sell the land without the growing timber ; and there is no execution by the trustees of the power to sell the land with the growing timber ; and I iind no authority which applies to the case." This case was, on appeal to the House of Lords, affirmed : 2 Russ. & 376 EXECUTION OP POWER. My. 751 ; 6 Bligh, N. S. 120 ; 1 C. & F. 60 ; Gholmeley v. Paxton, 3 Bing. 207 ; S. G. nom. Gockerell v. Gholmeley, 10 B. & C. 564 ; Ghol- meley V. Paxton, 5 Bing. 48, and see Sugd. Prop. 491. See, also, Ad- ney v. Field, Amb. 654 ; Stratford v. Lord Aldborough, 1 Ridg. 281 ; Scott V. Davis, 4 My. & Cr. 87. Upon the same principle, the sale of the surface of land under the ordinary power of sale, reserving the minerals, has been held to be invalid : Buckley v. Howell, 29 Beav. 546, and see Article 7, Jur. N. S., part 2, 235. However, by 22. & 23 Yict. c. 35, s. 13, where under a power of sale a bonS fide sale shall have been made of an estate with the timber thereon, or any other articles attached thereto, and the tenant for life, or any other party to the transaction, shall by mistake be allowed to receive for his own benefit a portion of the purchase-money as the value of the timber or other articles, the Court of Chancery, upon payment of the full value of the timber or other articles, at the time of the sale, with interest, and the settlement thereof, may declare the sale valid, and thereupon the legal estate is to vest as if the power had been duly executed. "Under the Settled Estates Act, 19 & 20 Vict. c. 120, the Court may authorize a sale of timber or mines apart from the surface (In re Mai- lings Settled Estate, 9 W. R. (V. C. S.) 588 ; Re Law, 7 Jur. N. S. 511, see sect. 11) ; and on a sale of mines apart from the surface, with rights of using the surface for the workings, may reserve a rent in respect of the surface damage from time to time ; In re Milward's Estate, 6 L. R. Eq. 248 ; moreover, on the sale of any land under the Act, " any earth, coal, stone, or mineral, maybe accepted," sect. 13. By the Confirmation of Sales Act (25 & 26 Vict. c. 108), no sale, exchange, partition, or enfranchisement made in exercise of a trust or power not forbidding the exception or reservation of minerals, is to be invalid (unless already declared to be so, or there is a suit pending), on the ground only that the trust or power did not expressly authorise an exception or reservation of minerals which has been made (sect. 1), *and hereafter such exception or reservation may be made by '- -' trustees and others, with the sanction of the Court of Chan- cery, to be obtained on petition (sect. 2). The Act does not, however, extend to Ireland or Scotland (sect. 3). Mortgagees are within the confirmation of Sales Act, and may have liberty to sell under their power of sale, with a reservation of the mines and minerals in the land sold, and incidental powers of working them ; and it is not necessary for mortgagees, in order to exercise the power of selling with such a reservation, to serve the petition on any subsequent incumbrancer : In re Beaumont's Mortgage Trusts, 12 L. R. Eq. 86; In re Wilkinson's Mortgaged Estates, 13 L. R. Eq. 634. Cestuis que trust ought to be made parties to any application under TOLLBT V. TOLLBT. 377 25 & 26 Vict. c. 108, s. 2, for sale of the surface, apart from the min- erals : In re Palmer's Will, 13 L. E. Eq. 408 ; and see In re Brown's Trust Estate, 9 Jur. (N.S.) 349 ; 11 W. R. 19. But it has been held that where trustees of settled land with power of sale, exerciseable with consent of the tenant for life, present a petition under the Confir- mation of Sales Act, for leave to sell the land and minerals separately, it need not be served on the beneficiaries entitled in remainder : In re Pryse's Estates, 10 L. R. Eq. 581. Lastly, as to what powers will he aided."] — There is no doubt that powers of jointuring, of raising portions, of sale, of revoking uses and generally appointing an estate, will, if defectively executed, be aided. It was, however, at one time doubted whether defective appointments under powers of leasing would be aided as against the remainderman. See Powell on Powers, 889. LordRedesdale, however, in Shannon v. Bradstreet, 1 S. & L. 52, held a contract to grant a lease by a tenant for life, according to a power, binding upon a remainderman, although it was objected that a leasing power differs from other powers, inasmuch as in other powers the remainderman has no interest in the mode in which the power is executed, as he claims nothing under it, but that under the leasing power he claims the rent reserved. " On what ground," said his Lordship, " can it be contended that that which is a mere charge upon a remainderman is to receive a more liberal construc- tion than what is not a mere charge upon liim, but may be much for his benefit ? In the case of powers to make leases at the best rent that can be obtained, it is evident that the author of the power looks to the benefit of the estate-, and that the power is given for the benefit both of the tenant for life and of all persons claiming after him ; for where the tenant for life can give no permanent interest, and his tenant is liable every day to be turned out of possession by the accident of *his |-^n , , -, death, it is hard to procure substantial tenants ; and therefore it is beneficial to all parties that the tenant for life should have a power to grant such leases This, therefore, is a power which is calculated for the benefit of the estate. Other powers, generally speak- ing, such as jointuring powers, and powers to make provisions for younger children are calculated for the benefit of the family ; they may be indirectly beneficial to the remainderman, in some respects, but they are no direct benefit to him; nor can I conceive why these powers should be construed more liberally than powers to make leases, except where it is evident that such power is abused ; and in case of letting leases, the power is certainly more liable to be abused than in making provisions for wife or children. In these latter cases, the sum to be raised is generally limited, and cannot be exceeded ; but a power of leasing is, to a certain extent, a power of charging ; if a fine is taken, it is unquestionably so ; and even where no fine can be taken, it is, to a certain degree, a charge, and for the benefit of tenant for life as well 378 EXECUTION OF POWER. as the remainderman, for tenant for life will get a better rent than if he had no such power. I cannot conceive, therefore, what distinction there is between a leasing power and the other powers before noticed; they are all powers given to the tenant for life for his benefit, to enable him to charge the estate ; and in case of a rack-rent, the power of leasing is also a benefit to the remainderman. Now, in case of a jointuring power, and in all the other cases, a contract has been held sufficient to enable a party to have the power executed in equity." See, also, Doe v. Weller, T Term. Rep. 4T8 ; Willes, 116 ; and Dowell v. Dew, 1 Y. & C. C. 0. 345, where an agreement to grant a lease was held bindtag as against a feme covert, as being a defective execution of her power of leasing. The legislature has also extended the remedies of lessees by the act for granting- relief against defects in leases made under powers of leas- ing in certain cases, see 12 & 13 Vict. c. 26, suspended in its operation by a subsequent act in the same session until the 1st of June, 1850 (12 & 13 Vict. c. 110), and amended by 13 & 14 Vict. c. 17. But equity will not aid a defect even in favour of purchasers, if the execution of the power would involve a breach of trust {Mortlock v. Fuller, 10 Ves. 292; Stratford y. Lord Aldborough. 1 Ridg. 281);— or would be a fraud upon the power: Harnett y. Yielding, 2 S. & L. 549. And a power of leasing will not be aided where the best rent has not been reserved, or a fine has been paid, contrary to the requisitions r*oion °^ ^^^ power ; or where there has been an agreement or *cove- naiit to grant a lease, commencing in futuro, where the power authorises only leases in possession, and the donee has died before the estate fell into possession (Campbell y. Leach, Amb. 140; Shan- non V. Bradstreet, 1 S. & L. 52 ; Doe v. Welter, 1 Term Rep. 418; Willes, 116 ; Dowell v. Dew, 1 Y. & C. C. 0. 345, 356 ; Temple v. Bal- tinglass. Rep. t. Finch, 215). But it seems that when the question is raised whether the rent reserved is adequate or not. Courts of equity will not decline to aid the imperfect execution of the power of leasing, unless the rent be so low, as to afibrd evidence of fraud : King v. Roney, 5 Ir. Ch. Rep. 64, *l*l. In Sandham y. Medwin, 3 Swanst. 685, where unusual and unheard of covenants were introduced into the lease, " usual and reasonable covenants " being required by the power, a Court of equity would not interfere. If a tenant for life has power to lease, with the consent of trustees or others, an agreement by the tenant for life alone to lease will not be aided : Lawrenson v. Butler, 1 S. & L. 13. In Shannon v. Bradstreet, 1 S. & L. 52, where a tenant for life, with power to grant leases " in possession, and not in reversion," entered into an agreement to grant a lease a day or two before the lease was to commence, the tenant for life having survived that time, no objection arose, and the agreement TOLLBT V. TOLLET. 379 was held by Lord Redesdale to be binding upon the remainderman. See, also, Dowell v. Dew, 2 Y. & C. C. 0. 345. A Court of equity will not grant its aid where there is a defect in the execution of a power under an act of Parliament, which must always be taken strictly ; thus, where a tenant in tail made a lease for years, not authorized by 32 Hen. 8, c. 28 (repealed by 19 & 20 Vict. c. 120, s. 35), equity would not make good the defect : MossweM's Case, per Button Ro. Abr. 379, fol. 6. See, also, Cowp. 267 ; 2 Bijrr. 1146 ; Anon., 2 Freem. 224. Non-execution of a power We must, however, distinguish between the defective execution and the non-execution of a power, for a non- execution of a power will not be aided : Howard v. Carpenter, 11 Md. 259, 282 ; a person, for instance, is not entitled to the aid of the Court on the ground of the execution of the power having been prevented by the sudden death of the donee : Piggott v. Penrice, Com. 250 ; Gilb. Eq. Rep. 138. So, disability to sign from gout has not been aided : Blockvill v. Ascott, 2 Eq. Ca. Abr. 659, n. ; and see Buckell V. Blenkhorn, 5 Hare, 131. We may, however, except those cases in which the execution of a power has been prevented by fraud, as where the deed creating the power has been fraudulently retained by *the person interested in its non-execution, for then it seems equity will afford its aid ; 3 Ch. Ca. 83, 84, 122 : Ward v. Booth, L ^^^J cited 3 Ch. Ca. 69. See, also, Piggott v. Penrice, Prec. Ch. 471 ; Vane V. Fletcher, 1 P. Wms. 354 ; Luttrell v. Olmius, cited 11 Ves. 683 ; S^agrave v. Kirwan, 1 Beat. 157 ; Bulkley v. Wilford, 2 C. & F. 102 ; Middleton v. Middleton, 1 J. & W. 94. Defects in the execution of powers cured by statute.^ — It may here be mentioned that if a will is in other respects properly executed, pro- bate cannot be refused upon the ground that the power under which it has been made has not been properly followed. See Barnes v. Vi7icent, (5 Moore, P. C. C. 201), where a decision of the Prerogative Court re- fusing probate to the will of a feme covert, on the face of it not exe- cuted according to the requisites of the power, was reversed by the Judicial Committee of the Privy Council. " It is certain," said Lord Brougham, " that there is a considerable class of cases, in which equity will relieve against a defective execution of a power. Thus in favour of a purchaser ; of a creditor ; of a child ; equity will relieve. But if probate shall have been refused by the Ecclesiastical Court, on the ground of the execution being defective, no such relief can ever be ex- tended in any case ; because the Court, which alone can relieve, never can know if the instrument had existed, nor can see the defect in the execution ; and the Court of Probate is bound by the fact of the defec- tive execution, and cannot remedy it. Thus a feme covert having made a will in favour of a child, and imperfectly executed it, the child must be excluded, by probate being refused ; when, had a Court of equity 380 EXECUTION OP POWER. been put in possession of the instrument, it would have held the defec- tive execution relievable in the child's behalf." See and consider Este V. Este^ 15 Jur. 159 ; De Ghatelain v. De Pontigny, 1 Swab. & Tr. 411. The will in Barnes v. Vincent was made prior tb the passing of the Wills Act (1 Vict. c. 26), and it must be remembered, that by that Act, no appointment made by will, in exercise of any power, will be valid, unless the same be executed with the solemnities required by the Act ; but if those are complied with, the appointment will be valid, although some additional or other form of execution or solemnity may have been required by the power. See sects. 9 and 10, ante, p. 235. An appointment by deed is now rendered valid in many cases, al- though not executed and attested by all the solemnities required by the instrument creating the power. See the Property and Trustees' Relief Amendment Act (22 & 23 Vict. c. 35, s. 12), which enacts that " a deed hereafter executed *in the presence of, and attested by, two or L -' more witnesses in the manner in which deeds are ordinarily executed and attested shall, so far as respects the execution and attes- tation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary, notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execution, or attestation, or solemn- ity : provided always, that this provision shall not operate to defeat any direction in the instrument creating the power, that the consent of any particular person shall be necessary to a valid execution, or that any . act shall be performed in order to give validity to any appointment having no relation to the mode of executing and attesting the instru- ment, and nothing herein contained shall prevent the donee of a power from executing it conformably to the power by writing or otherwise than by an instrument executed and attested as an ordinarjr deed, and to any such execution of a power this provision shall not extend." Where forms are imposed on the et al. v. Russell et al., 1 Freeman, execution of a power, the circum- 42, 50 ; Marshall v. Stephens et stances must be strictly adhered als., 8 Humphreys, 159, 113 ; Bako' to ; and however arbitrary and well v. Ogden, 2 Bush, 265. But unessential to the validity of the " whenever the intention to execute appointing instrument, they must a power is sufldciently manifest, be strictly pursued, in order to but the execution is defective, or constitute a good execution in law ; it has not been executed according Pepper's Will, 1 Parson's Eq. 436, to the terms, or in the form pre- 446 ; Porter v. Turner, 3 S. & R. scribed, equity will correct ths 108; Slifer and others v. Beates mistake or supply the defect. When and another, 1) Id. 166, 181; Ford- nothing has been done, or attempted TOLLET V. TOLLBT. 381 to be dene, toward the execution of a power, equity, in general, will not interfere, ur^ss the instrument creating the power shall have vested, or recognized in third persons, rights, to secure which the execution of the power is ne- cessary. If the attorney or agent has attempted to execute the power, but has done it defectively, the party claiming under it, cannot avail himself of it, at law, but equity interposes its aid, upon the broad principle of relieving against accident or mistake ;" Barr v. Hatch and others, 3 Ohio, 52T, 529. Equity will aid the defective exe- cution of a power in favor of pur- chasers for a valuable considera- tion ; Schenck v. Ellingwood, 3 Edwards, 1Y5, 1T6 ; Thorp et al. v. Jf' CMZZMmei;aL,lGilraan,615,629; Beatty v. Clark, 29 California, 11 ; Love V. The Sierra Nevada Min- ing Co., 32 California, 653 ; in favor of a chfirity ; Pepper's Will, 1 Parson's Eq. 436, 446 ; and in favor of creditors, and of a wife or a legitimate child ; Porter and others v. Turner and others, 3 Sergeant & Rawle, 108, 111, 114 ; Dennison v. Ooehring, 1 Barr, ITS, 180; Beatty v. Clark, 20 Califor- nia, 12 ; see also, Bradish v. Gibbs, 3 Johnson's Chancery, 523, 550 ; but not in favor of grand-children, where in default of appointment, the estate would go to grand-chil- dren ; Porter and others v. Turner and others. But relief will not be given in equity, where the act which may have been done about the property cannot reasonably be referred to an intention to execute the power ; Ford et al. v. Russell et al., 1 Free- man, 42, 51. Nor can that court give aid in the case of a defective power ; it cannot, therefore, give validity to a conveyance where an attorney conveying by a sealed in- strument, has not been appointed under seal ; The Heirs of Piatt and others v. The Heirs of M'Cul- lough, 1 M'Lean, 69, 82. In Roberts' Widow and Heirsy. Stan- ton, 2 Munford, 129, 138, 139, where one trustee, only, had conveyed under a power which was required to be executed by all jointly, Tucker, J., was of opinion, that as there was a want of competency in the person acting, to execute the power, except in conjunction with others, it was not a case in which chancery would relieve on the ground of aiding a defective execution of a power ; but Flem- ing, J., considered, that it was a case in which a power had been imperfectly executed, and that in favor of a valuable consideration, equity would supply the defect ; and the latter view appears to be correct. See Thorp et al. v. if' Cul- lum et al., 1 Gilman, 615, 629. Though equity will never supply a non-execution of a bare power ; Johnson v. Cushing, 15 New Hampshire, 1Y8; Howard y. Car- penter, 11 Maryland, 259, 282 ; Wilkinson v. Getty, 13 Iowa, 157 ; yet if a trust has been imposed in connection with the power, upon a person who was to execute it, equity will not allow the person intended to be benefited, to suffer from the negligence, mistake or ignorance of the trustee, or other circumstances ; Withers v. Yeadon, 382 VOLtJNTART TRUSTS. 1 Richardson's Equity, 325, 229 ; chaser under the power,- notwith- Gihhs V. Marsh, 2 Metcalf, 243, standing the refusal of the executor 251 ; Thorp et al. v. M'Gullum et to concur in the ^le. aZ., 1 Gilman, 615, 625, 630. Thus The remedy, in cases of aiding in Norcum v. D'Beuch, 17 Mis- an imperfect execution, is, in chan- souri, 98, a power given to a widow, eery, only, where it proceeds upon who took a life estate under the the ground of compelling parties, will, to sell for the benefit of chil- in respect of the consideration, to dren, with the consent of the exe- supply a defect in their acts : the cutor, was held to he a trust for the transaction remains defective and children, coupled with an interest inoperative in law ; Sinclair v. in herself; and the court, conse- Jackson, 8 Cowen, 544, 588. quently, upheld the title of a pur- [*245] ^ELLISON v. BLLISOK " FEBRUARY 34, 1803. EEPOKTED 6 VES. 656. Voluntary Trusts.] — Distinction as to volunteers. The assistance of the Court cannot be had without consideration, to constitute a party cestui que trust, as upon a voluntary covenant to transfer stock, ^c; hut if the legal conveyance is actually made, constitu- ting the relation of trustee and cestui que trust, as ff the stock is actually transferred, ^c, though loithout consideration, the equitable interest will be enforced. Settlement of leasehold estates not revoked, by a subsequent assign- ment by the trustee to the settlor entitled for life, or by the will of the latter; no intention to revoke appearing; and the terms of a power of revocation not being complied vnth. Bt indenture, dated the lat of July, 1791, reciting a lease, dated the 6th of June preceding, of collieries at Hebburn and Jarrowwood, in the count}' of Durham, for thirty-one years, to Charles Wren and others ; and that the name of Wren was used in trust for Nathaniel Ellison and Wren, in equal shares; it was declared, that Wren, his executors and administrators, would stand possessed of the lease, in trust, as to one moiety, for Ellison, his executors, &c. By another indenture, dated the 18th of June, 1796, reciting, that Ellison was interested in and entitled to one undivided eighth part of certain collieries at Hebburn and Jarrow, held by two separate leases for terms of thirty-one years, and that he was desirous of settling his interest, he assigned and transferred all his interest in the said collieries, and all the stock, &c., to Wren, ELLISON V. ELLISON. 383 his executors, Administrators, and assigns, in trust for r*04«i Nathaniel Ellison and his assigns during his life ; and, '- -■ after his decease, in trust to manage and carry on the same, iu like manner as Wren should carry on his own share ; and upon further trust, out of the profits, to pay to Margaret Clavering, during the remainder of the term, in case she should so long live, the yearly sum of 103^. 25. Sd., which sum is thereby mentioned to be secured to her by an indenture, dated the lith of May last ; and, subject thereto, in trust to pay thereout to Jane Ellison, in case she should survive Nathaniel Ellison, during the remainder of the term, during the joint lives of Jane Ellison and Anne Furye, the cloar yearly sum of UOL; and after the decease of Anne Furye, then the yearly sum of 90^., during the remainder of the term, in case Jane Ellison should so long live ; and, subject as aforesaid, upon trust to pay thereout, to each of the children of Kathaniel Ellison that should be living at his decease, during the remainder of the term, during the joint lives of Jane Ellison and Anne Furye, and the life of the survivor, the yearly sum of BQl. apiece ; and after the decease of the survivor the yearly sum of Ibl.; and upon further trust to pay the residue of the protits arising from the collieries to the eldest son of Nathaniel Ellison, who should attain the age of twenty-one ; and upon the death of Margaret Clavering, then upon trust to pay to each of the chil- dren of Nathaniel Ellison the further yearly sum of 10/.; with survivorship, in case any of the children should die before twenty- one, or marriage of daughters, provided none except the eldest should be entitled to a greater annuity than 5u2.; and upon further trust to pay the residue to the eldest son ; provided further, in case all the children die before twenty-one, or the marriage of daughters, upon trust to pay the whole to such only child at twenty-one, or marriage of a daughter ; provided further, in case the protits to arise from the collieries should not be suflS.- cient to pay all the annuities, the annuitants, except Margaret Clavering, should abate, to be made up whenever the profits should be sufficient ; *and upon further trust, in case r^o jw-i Wren, his executors or administrators, should think it I- ^ more beneficial tor the family to sell and dispose of the collieries, upon trust to sell and dispose of the same tor the most money that could reasonably be got, and to apply the money, in the first place, in payment of all debts due from the collieries, in respect of the share of Ellison ; and, subject thereto, to place out the residue on real securities, and apply the interest, iu the first place, in pay- ment of the annuity of iOSl. 2s. bd. to Margaret Clavering ; then to the annuities of 180^., or 90/.; then to pay all the children of Ellison, during the life of Margaret Clavering, the yearly sum of 22/. 10s., and to pay the residue of the dividends and interest to the eldest son of Ellison, in manner aforesaid ; and if the divi- dends, &c., should not be sufficient for the annuities, the two annuitants, except Margaret Clavering, to abate ; and, after her death, to pay to each of the children of Nathaniel Ellison the 384 VOLUNTARY TRUSTS. further yearly sum of 21. 10s. for their lives ; and, after the de- cease of Margaret Clavering and Jane Ellison, upon trust to pay to each of the children of iSlathaniel Ellison the sum of 500^., in case the money arising from the sale should be sufficient ; then upon trust to divide the same equally among all the children, share and share alike ; and, subject as aforesaid, to pay over the residue to the eldest son on his attaining twenty-one ; and it was declared, that the portions of the children should be paid to the sous at twenty-one, to the daughters at twenty-one or marriage : and in case of the death of any before such period, to pay that share to the eldest son at twenty-one ; and if only one child should survive, to pay the whole to such one at twenty-one or marriage, if a daughter ; and in case ail die before twenty-one, &c., then the said Charles Wren, his executors and administrators, shall stand possessed of the said collieries, and the money to arise by sale thereof, subject as aforesaid, in trust for ISathaniel Ellison, his executors, administrators, and assigns. It was further declared, that the annuities should be paid half-yearly ; and that, upon any r*24Sl ^^^^ ^^^^' *^® receipt of Wren, his *executors or adminis- '- -■ trators, should be a sufficient discharge to purchasers. Then followed this proviso : — " Provided always and it is hereby further declared, that it shall and may be lawful for the said JSathaniel Ellison, by any deed or deeds, writing or writings, to be by him signed, sealed, and delivered in the presence of and attested by two or more credible witnesses, to revoke, determine, and make void all and every the uses, trusts, limitations, and powers hereinbefore limited and created, of and concerning the said col- lieries and coal mines ; and by the same deed or deeds, or by auy other deed to be by him executed in like mauner, to limit any new or other uses of the said collieries and coal mines, as he, the said l^athaniel Ellison shall think fit." By another indenture, dated the 3rd of July, 1797, but not attested by two witnesses, reciting the leases of the collieries, and that the name of Charles Wreu was used in trust for Nathaniel Ellison and himself, in equal shares, and that Ellison had advanced an equal share of the monies supplied for carrying on the collieries, amounting to 9037^. 10s., it was witnessed, that, in consideration of 45iyL ios.. Wren assigned to Nathaniel Ellison one undivided moiety or half part of all the said collieries, demised to him by the said several leases, with a like share of the stock ; to have and to hold the said collieries to Ellison, his executors, adminis- trators, and assigns, for the residue of the said terms, subject to the rents, covenants, and agreements in the said leases ; and to have and to hold the stock unto Ellison, his executors, adminis- trators and assigns, to and for his and their own proper use for ever, with the usual covenants from Wren as to his title to assign, &c., and from Ellison to indemnify Wreu, his executors, &c. Nathaniel Ellison, by his will, dated the 22nd Juue, 1796, after several specific and pecuniary legacies, gave all the rest and resi- due ot his personal estate and ettects, of what nature or kind ELLISON V. ELLISON. 385 soever, not before disposed of, to his wife, and Wren, and the survivor, and the executors and administrators of such survivor, upon trust to call in *and place the same out in the funds, r^.i^Q-i or on real securities ; and he directed that all suras of '- ^ money which should come to the hands of his wife and Wren, or of the executors, &c., of either of them, under the said trusts, should he equally divided between all his children, sons and daughters, born and to be born, share and share alike ; the shares 7 ' 7 to become vested and be payable upon marriage, with consent of their guardians, and not otherwise, until the age of tw«nty-one ; such part of the interest in the meantime, as the guardians shall think proper, to be applied for maintenance ; the residue to ac- cumulate; with a direction for payment of part of the principal for advancement, and survivorship upon the death of any before the respective shares should be payable ; and, in case of the death of all under age and unmarried, he gave the dividends and interest to his wife for life ; and, upon her death, he gave the principal and a sum of 3000^., charged upon her estates, to his sister, Margai-et Clavering, and his nephew. Then, after some further dispositions of stock in favour of his children, he gave a legacy of twenty guineas to Wren, and appointed his wife and Wren executors and guardians. The testator died in 1798, leaving his widow and ten children surviving ; one of whom, Charles Ellison, died in 1799, an infant. Wren also died in that year. The bill was filed by the testator's widow and Margaret Claver- ing, praying, that the trusts of the deed of June, 1796, may be established, and that new trustees may be appointed. The younger children, by their answer, submitted whether the trusts of that deed were not varied or revoked by the deed of July, 1797. Mr. Romilly and Mr. Bell, for the plaintiffs, insisted, that the subsequent deed, not reciting or taking any notice of the prior settlemeut, could not revoke it ; that it was not the object of the latter deed to revoke the former ; and that it was not attested by two witnesses, as, in order to effect a revocation, it ought to be. *Mr. Richards, for the eldest son, defendant, claiming r^ncA-i also under the deed of 1796, declined to argue the case. '- ^ Mr. Steele and Mr. W. Agar, for the other defendants, the younger children. — Though the expression in the clause of revo- cation is " deed or writing," a will with two witnesses would do, according to the case' from Ireland, cited in Lord Darlington v. I'ulteney? iso intention, however, can be found in the will to revoke this settlement ; but the subsequent deed is an implied revocation. What use could there be in that deed but to give Ellison the absolute estate, which is quite inconsistent with the trusts of the former deed, which are very special, and give a large 1 Roscommon v. Fowke, 6 Bro. P. C, Toml. ed., 1 ,8. ^ Cowp. 368. VOL I 25 VOLUNTARY TRUSTS, discretion ? An instrument may be revoked by another, though not taking notice of the former, but only making a disposition inconsistent with it : Lord Fauconberge v. Fitzgerald^ Arnold v. Arnold} And though the latter of these cases was upon a will, there is no diiFerence upon a voluntary settlement. There is no instance in which a voluntary deed, defective, and not effectual at law, has been aided in this court ; and though this is, in some respects, in favour of a wife and children, one of the parties claimr ing under it is a volunteer ; and it is opposed by nine out of ton children. This deed, like that in Colman v. Sarrel^ cannot be proceeded upon at law. But if the trust was originally well created, yet if the subject gets back, and is vested in the author of the trust, the objection lies. Mr. Homilly, in reply. — Can it be stated as a question here, whether a settlement for a wife and children can be enforced against the representative of the father or the husband ? Colman V. Sarrel has not the most remote application ; the parties claim- ing under the deed being mere strangers, except by a connection illegal and immoral. It is not necessary to consider the case of a mere volunteer. Mr-^. Clavering was a creditor by an annuity secured by a prior deed. Supposing Ellison had an intention to revoke this settlement, he had prescribed to himself certain forms, the attestation of two witnesses. There is no instance of an im- r*9p;n P''®*^ revocation of trusts, *which are only to be revoked I- " -I expressly, by a particular certain form. But there is not the least pretence upon these instruments, either the deed or the will, of any such intention. The will was executed only four days after the settlement, which is not noticed in either instrur ment. It is no more than consenting that the trustee, having the legal interest, shall assign to another person, and taking it himself. Notwithstanding the length the Court have gone upon wills,* this would not be a revocation even of a will, merely taking the legal interest, having disposed of the equitable. Tlie inten- tion that these tl■u^ts should not prevail would have been exr pressly declared. As far as Wren was a trustee, the deed is revoked ; but it was the act of Wren, Ellison being passive. Lord Chancellor Eldon. — I had no doubt, that, from the moment of executing tlje first deed, supposing it not to have been for a wife and children, but for pure volunteers, those vol- unteers might have filed a bill in equity, on the ground of their interest in that instrument, making the trustees and the author of the deed parties. I take the distinction to be, that, if you want the assistance of the Court to constitute you cestui que trust, and the instru- ment is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust : as, upon a covenant to transfer stock, ^c, if it rests in covenant, and is purely voluntary, this Court ' 6 Bro. p. C. 295, Toml. ei). " 1 Bio. C. 0. 401. 5 1 Yes. Jun. 50 ; S. C, 3 Bro. C. C. 13. • * See Harmood v. Oglander, 6 Ves. 199, aud note. ELLISON. V. ELLISON. 387 will not execute that voluntary covenant. But if the party has com- fleiely transferred stock, ^c, though it is voluntary, yet the legal con- veyance being effectually made, the equitable interest will be enforced by this Court. That distinction was clearly taken in Colman v. Sarrel,^ independent of the vicious consideration. I stated the objection, that the deed was voluntarj' ; and the Lord Chancellor^ went with tne so far as to consider it a good objection to execu- ting what remained in covenant. But if the actual transfer is made, that constitutes the relation between trustee and cestui que trust, though voluntary, and without good or meritorious^ con- sideration ; and it is clear, in that case, that, if the stock had been *actually transferred, unless the transaction was r^.icn-i affected by the turpitude of the consideration, the Court ^ ' -■ would have executed it against the trustee and the author of the trust. In this case, therefore, the person claiming under the settle- ment might maintain a suit, notwithstanding any objection made to it as being voluntary, if that could apply to tbe case of a wife and children ; considering, also, that Mrs. Clavering was an annuitant, and not a mere volunteer. But it was put for the detendant thus — that though the instrument would have been executed originally, if the subject got back by accidenjt into the author of the trust, and was vested in him, then the objection would lie in the same manner as if the instrument was voluntary. I doubt that, for many reasons — the trust being once well created, and whether it would apply at all where the trust was originally well created, and di.i not rest merely in engagement to create it. Suppose Wren had died, and had made Ellison his executor, it would be extraordinary to hold, that though an execution would be decreed against him as executor, yet, happening to be also author of the trust, therefore an end was to be put to the interest of the cestui que trust. But it does not rest there; for Ellison clothes the legal estate remaining in Wren with the equitable interests declared by the iirst deed, making him, therefore, a trustee for Ellison himself first, and, after his death, for several other persons ; and he has said, he puts that restraint upon his own power, not only that he shall not have a power of revocation whenever he changes his intention, but that he shall not execute that power, nor be supposed to have that change of intention, unless manifested by au instrument executed with certain given ceremonies. My opinion is, that if there is nothing more in this transaction than taking out of Wren the estate clothed with a trust for others with present interests, though future in enjoy- ment, and that was done by an instrument with no witness, or puly one witness, it is hardly possible to contend that such au ' 1 Ves. jun. 50 ; S. C, 3 Bro. C. C. 12. 2 Thurlow. ' That meritorious consideration merely will not entitle a volunteer to tlie aid of equity. See Jeflferys v. Jeflferys, 1 Cr. & Ph. 138 ; .billon v. CJoppin, 4 My. & Cr. ti47, overruling Ellis v. Nimmo, L. & Q. 333, t. Sugd. 388 VOLUNTARY TRUSTS. r*2'iSl instrnnient would be a revocation *aceording to the in- L J tention of the party, the evidence of whose intention is made snlgect to restrictions that are not complied with. The only difficulty is, that the declaration of the trusts in the first instrument could not be executed, the second instrument being allowed to have ofiect. It is said, a power was placed in Wren, his executors and administrators, not his assigns, if in sound dis- cretion thought fit, to sell and to give a larger interest to the younger children than they otherwise would take. If Wren had not, after the re-assignment, that discretion still vested in him, I think it would not be in the executors of Ellison, and it could not be exercised by the Court, though, ui general cases, trusts will not fail by the failure of the trustee. But, though the efiect would be to destroy the power of Wren, which I strongly doubt, attend- ing to the requisition of two witnesses, I do not know that it would destroy the other interests. I think, therefore, upon the whole, this trust does remain, notwithstanding this re-assignment of the legal estate to Ellison. I do not think, consistently with the intention expressed in the first instrument, and the necessity imposed upon himself of declaring a dift'erent intention under certain restrictions, that, if a diti'erent intention appeared clearly upon the face of the instrument, the latter would have controlled the former. But I do not think his acts do manifest a ditferent intention. Supposing one witness sufficient, the second deed does not sufficiently manifest an intention to revoke all the benetits given by the first deed to the children ; and it is not inconsistent that he might intend to revoke some, and not all. As to the will, it is impossible to maintain that the will is a writing within the meaning of the power, considering how the subject is described. The word "residue" there means, that estate of which he had the power of disposing, not engaged by contracts, declarations of trusts, &c. It was necessary for him to describe the subject in such a way that there could be no doubt he meant to embrace that property. Upon the whole, therefore, r*-)-4i this relief *must be granted ; though I agree, that, if it '- ~ -^ rested in covenant, the -personal representative might have put them to their legal remedies, he cannot, where the character of trust attached upon the estate while in Wren ; wbich character of trust, therefore, should adhere to the estate in Ellison, unless a contrary intention was declared ; and the circumstance of one witness only, when the power reserved required two witnesses, is also a circumstance of evidence that he had not the intention of destroying those trusts which had attached, and were then vested in the person of Wren. The ordering part of the decree, extracted from the Registrar's Book, is thus :' " Whereupon, and upon debate of the matter, and hearing the deed of trust dated the 18th June, 179t>, read, ' Taken from the judgment of Lord Justice Kniglit Bruce, in Kekewicb v. Manning, 1 De G. Mac. & G. 191. ELLISON V. ELLISON. 389 and what was alleged by the counsel on both sides, his lordship doth declare that the trust of the said deed, bearing date 18th June, 1796, ought to be performed and carried into execution, and doth order and decree the same accordingly. And it is further ordered and decreed, that it be referred to Mr. Ord, one of the Masters ot this Court, to appoint a new trustee or trustees of the premises comprised in the said trust deed, and that the share of the said Nathaniel Ellison of and in the said collieries, and the stock and effects belonging thereto comprised in the said deed, be assigned, to sucVi new trustee or trustees so to be ap- pointed, upon the trusts and upon and for the intents and pur- poses declared by the said deed concerning the same, and such new trustee or trustees is or are to declare the trust thereof ac- cordingly, and the said Master is to settle such assignment ; and it is ordered that the said Master do tax all parties their costs in this suit, and that such costs, when taxed, be paid out of the estate of the said testator, and any of the parties are to be at liberty to apply to this Court as there shall be occasion." In the leading case of Ellison v. Ellison, Lord Eldon lays down and acts upon the well-known rule, that, where a trust is actually created, *and the relation of trustee aud cestui que trust established, a Court of equity will, in favour of a volunteer, enforce the exe- '- -* cation of the trust against the person creating the trust, and all subse- quent volunteers ; although it will not create a trust or establish the relationship of trustee and cestui que trust, by enforcing the perform- ance of an agreement, or by giving effect to an imperfect conve3''ance or assignment in favour of volunteers. The application, however, of this rule, is by no means free from difficulty, as it is frequently a ques- tion of much nicety to determine whether the relation of trustee and cestui que trust has or not been established. It is intended, therefore, in this note to examine the cases in which equity interposes or refuses its aid in favour of volunteers. Where there has been an actual bona fide transfer of the legal inter- est in real or personal property by the settlor or his trustees to trustees upon trusts declared in favour of volunteers, these trusts, it Is clear, will be enforced in equity against the settlor or 'his representatives or subsequent volunteers (Colman v. Sarrel, 3 Bro. C. C. 12, 14; S. G. I Ves. jun. 50 ; Puluertoft v. Pulvertoft, 18 Ves. 84, 99 ; Bill v. Cure- ton, 2 My. & K. 503 ; Jefferys v. Jefferys, Cr. & Ph. 138, 141 ; Den- ning V. Ware, 22 Beav. 184 ; Muggeridge v. Stanton, "T W. R. (V. 0. K.) 638 ; Dilrow v. Bone, 3 Giff. 538) ; even although, as in the princi- pal case, the trust property by accident gets back into the hands of the donor [Smith v. Lyne, 2 Y. & C. C. C. 345 ; Browne v. Cavendish, 1 J. & L. 637 ; Newton v. Askew, 11 Beav. 145 ; and see Page v. Home, II Beav. 227 ; Lanham v. Pirie, 2 Jur. N. S. 753, 3 Jur. N. S. 704 ; 390 VOLUNTARY TRUSTS. Gilbert v. Overton, 2 Hem. & Mill. Ill) ; to whom, if it were trans- ferred by the trustees, they would commit a breach of trust : McDon- nell V. Sesilrige, 16 Beav. 346. Where, although there has been an intended transfer to trustees, the trusts have not been finally determined upon by the settlor, he has a locus pcenitentiae, and may call for a re-transfer : Be Syhes' Trusts, 2 J. & H. 415. Where, however, a legal transfer of property has been made to trus- tees, for payment of the debts of the owner without the knowledge or concurrence of his creditors, such a transaction, it has been repeat- edly held, does not invest creditors with the character of cestuis que trust, but amounts merely to a direction to the trustees as to the method in which they are to apply the property vested in them for the benefit of the owner of the property, who alone stands towards them in the relation of cestui que trust, and can vary or revoke the trusts at pleasure. Courts of equity, therefore, will not, at the instance of the creditors, who are looked upon as mere strangers, compel the trustees to execute the trusts for *payment of debts. Thus, in Walwyn '- -'v. Coutts, 3 Mer. '707, S. G., 3 Sim. 14, where estates were con- veyed to trustees upon trust for the payment of the debts of certain scheduled creditors, who were neither parties nor privies to the deed, Lord Eldon held, that the trust was voluntary, and that it could not ba enforced against the owners of the estates, who might vary it as they pleased. So, also, in Garrard v. Lord Lauderdale, 3 Sim. 1, where an assignment of personal property was made to trustees for payment of certain scheduled creditors who were parties to, but who neither executed nor were privy to the execution of the deed. Sir L. Shadwell, Y. C, although the execution of the deed had been communi- cated to the creditors, upon the authority of Walwyn v. Coutts, held, that they had no right to enforce the trusts of the deed, and he con- sidered that the principle of the two decisions of Ellison v. Ellison and Walwyn v. Coutts were reconcilable with each other ; " because," said his Honor, " I apprehend that Lord Eldon must have considered that where a person does, without the privity of any one, without receiving consideration, and without notice to any creditor, himself make a dis- position, as between himself and trustees, for the payment of his debts, he is merely directing the mode in which his own propertj^ shall be applied for his own benefit, and that the general creditors, or the credi- tors named in the schedule, are merely persons named there for the purpose of showing how the trust property under the voluntary deed shall be applied for the benefit of the volunteers." This case was, on appeal, affirmed by Lord Brougham : 2 Russ. & My. 451. So, like- wise. Sir J. Leach, M. R., in Acton v. Woodgate, 2 My. & K. 495, held, that a conveyance to trustees for the benefit of creditors, who were neither parties nor privies to it, was revoked by a second conveyance, ELLISON V. ELLISON. 391 executed by several creditors, not privy to the first. In Page v. Broom, 4 Russ. 6, a debtor had by deed poll directed the receiver of his estate to pay the interest of a particular debt : it was held by Sir J. Leach, M. R., that, as the deed was executed without consideration, and without the privity of the creditor, no trust was created in his favour. This case was affirmed on appeal by Lord Brougham. See 2 Russ. & My. 214. In Bill v. Gureton, 2 My. & K. 511, Lord Cot- tenham, then Master of the Rolls, with reference to the cases of Wal- wyn T. Coutts and Garrard v. Lord Lauderdale, observes, " that these two cases, so far from deciding that a ^ cestui que trust becoming entitled under a voluntary settlement had not a good title against the settlor, proceeded upon this, that the character of trustee and cestui que trust never existed between the creditor and the trustees of the trust deeds, but *that the settlor himself was the only cestui op-h-i que trust, and therefore that he was entitled to direct the ap- '- plication of his own trust fund." In Oihhs v. Glamis, 11 Sim. 584, a suit was instituted by A. against B. and C. respecting a sum of £4000. D. was also made a party to the suit ; but having no interest, he dis- claimed. A., B., and C. afterwards came to a compromise ; in pursu- ance of which they executed a deed, assigning the £4000 to trustees in trust to pay D. his costs of the suit, and to divide the rest of the fund amongst A., B., and C. D., though he was not a party either to the compromise or to the deed, filed a bill against A., B., and C, and the trustees, to compel a performance of the trusts and payment of his costs. Lord Cottenham, reversing the decision of Sir L. Shadwell, V. C, al- lowed the demurrer of C. for want of equity, observing, " that the ques- tion was, whether the provision for payment of costs gave the party Whose costs were so provided for a right to institute a suit as cestui que trust, he having no interest in the fund, not having been a party to the arrangement, and the arrangement having been made between the par- ties interested in the fund, for their own benefit or convenience ; that the present case was not distinguishable from Garrard v. Lord Lauderdale, and the other cases which had been cited, in each of which the plaintiff Was as much a cestui que trust as the plaintifi' in that case was. See also Bavenshaw v. Hollier, 1 Sim. 3 ; Wilding v. Bichards, 1 Coll. 655 ; Law V. Bagwell, 4 D. & W. 398 ; Browne v. Cavendish, 1 J. & L. 635 ; Simmons v. Palles, 2 J. & L. 489 ; and the observations of Sir Edward Sugden in the last case on Gibbs v. Glamis ; Smith v. Hurst, 10 Hare, §0 ; Steele v. Murphy, 3 Moore, P. C. C. 445 ; Smith v. Keating, 6 C. B. 136, 158 ; Thayer v. Lister, 9 W. R. (V. C. W.) 360 ; Eenriques v. Bensusan, 20 W. R. (V. C. M.) 350. It is clear also, that, in other cases in which creditors are not con- cerned, a person not intending to give or part with the dominion over his property, may retain such dominion, notwithstanding he may have vested the property in trustees, and declared a trust upon it in favour 392 VOLUNTARY TRUSTS. of third persons. Thus, in Hughes v. Slubbs, 1 Hare, 4'76, a testatrix drew a cheque on her banljcrs for £150 in favour of A., and she verbally directed A. to apply that sum, or so much of it as might be necessary, to make up to a legatee the difference in value between a legacy of £100, which the testatrix, by her will, had given to the legatee, and the price of a £100 share in a certain railway : the testatrix informing A. that she intended to give the share instead of the legacy, but she did not think it necessary to alter her will. The bankers gave credit to A. for ^ the £150. The testatrix afterwards *died. In a suit for the '- -' administration of her estate. Sir J. Wigram, V. C, held, that no trust was created for the benefit of the legatee in respect of the £150. " The casts," observed his Honor, " on this subject are necessarily of difficulty ; but the conclusion to which I feel bound to come is, that the testatrix did not part with her property in the sum in question, or create any trust for the legatee." See also Gaske.ll v. Gaskell, 2 Y. & J. 502 ; Paterson v. Murphy, 11 Hare, 88 ; and the remarks of Wood, V. C, in Vandenherg v. Palmer, 4 K. & J. 214, 218 ; Pedder v. Mosely, 31 Beav. 159. Where however a trust in favour of creditors has been acted upon ( Cosser v. Radford, 1 De G. Jo. & Sm. 585), or has been communicated to the creditors, it can no longer be revoked hy the settlor. This was laid down in Acton v. Woodgate, 2 Mj-. & K. 495, by Sir John Leach, M. E., who said, that, in the case of Garrard v. Lord Lauderdale, it seemed to have been considered that a communication b}^ the trustees to credi- tors of the fact of such a trust would not defeat the power of revocation by the debtor, but that it appeared to him that such a doctrine was questionable, because the creditors, being aware of such a trust, might be thereby induced to a forbearance in respect of their claims, which they would not otherwise have exercised. Other judges have taken the same view as Sir J. Leach, as to the effect of the communication of the deed to the creditors, (see Browne v. Cavendish, 1 J. & L. 635 ; Sini- monds v. Palles, 2 J. & L. 504 ; Kirwan v. Daniel, 5 Hare, 499 ; Har- land V. Binks, 15 Q. B. Y13,) which it would seem must be clearly proved (Gornthwaite v. Frith, 4 De G. & Sm. 552), but where an assignment is made to a creditor in trust for himself and other credi- tors, it cannot be revoked by the assignor after it has been communi- cated to the assignee, unless he has done something to show his dissent: Siggers v. Evans, 5 Ell. & B. 361, 380, 381 ; Lawrence v. Campbell, 1 W. R. (V. C. K.) 170 ; Eobson v. Thelluson, 2 L. R. Q. B. 642. And it seems to be doubtful whether, after the trust has been communicated to some of the creditors, it can after satisfj'ing them be revoked bj' the settlor as to the other creditors. See Griffith v. Ricketts, Y Hare, SOT. The execution, however, of a trust deed for (amongst other things) the payment of creditors does not constitute one of the creditors, who becomes so after the execution of the deed, and was not a party to it, a ELLISON V. ELLISON. 393 cestui que trust, entitled to call on the trustee to execute the trusts of the deed: La Touche v. Earl of Lucan, T C. & F. 712. Where a creditor is party to a deed whereby his debtor conveys property to a trustee to be *applied in liquidation of the debt r^nc qi due to that creditor, the deed is, as to that creditor, irrevocable. A valid trust is created in his favour, and the relation between the debtor and trustee is no longer that of mere principal and agent (per Lord Cranworth, V. C, in Mackinnon v. Steiuart, 1 Sim. N. S. 88, and see Glegg v. iJees, Y L. R. Ch. App. Yl). And that which is true where a single creditor is the cestui que trust, is at least equally so where there are many creditors. Nor does the creditor executing the deed become less a cestui que trust, because he gives nothing to the debtor, as a consideration for the trust created in his favour, or because it was the voluntary, unsolicited act of the debtor to create the trust : (per Lord Cranworth, V. C, in Mackinnon v. Stewart^ 1 Sim. N. S. 88; see, also. Field v. Lord Donoughmore, 2 Dru. & Walsh. 630, 1 Dru. & War. 22*7 ; Gurney v. Lord Oranmore, 4 Ir. Ch. Rep. 4'rO ; 5 Ir. Ch. Rep. 4.36 ; or because he was party to the deed in another right. Montefiore V. Browne, T Ho. Lo. Ca. 241, 266). And though there is a time limited in the deed within which credi- tors must execute it, if by accident any of them fail to do so, they will not nei'essarily, in equity at anjr rate, should they act under the deed (Spottiswoode v. Stockdale, Sir Gr. Coop. Rep. 102 ; EawortliY. Parker, 2 K. & J. 163), or upon the faith of it (Nicholson v. Tuiin, 2 K. & J. 18), or acquiesce in it (In re Saber's Trusts, 10 L. R. Eq. 554), be excluded from the benefit of the trusts (Bunch v. Kent, 1 Vern. 260 ; Field V. Lord Donoughmore, 1 Dru. & War. 22T ; and see Lane v. Husband, 14 Sim. 661 ; Whitmore v. Turquand, 1 J. & H. 444 ; 3 De G. F. & Jo. lOY ; Biron v. Mount, 24 Beav. 642), though they might not be allowed to disturb any dividend already made amongst the credi- tors (Broadbent v. Thornton, 4 De Gex & Sm. 65 ; Field v. Cook, 23 Beav. 600) ; but the Court, before it permits a creditor, who has not executed to take a benefit under a deed, is bound to see that he has performed all the fair conditions of such deed, and if he has taken any step inconsistent with its provisions, he will be deprived of all advan- tage therefrom (Field v. Lord Donoughmore, I Dru. & War. 227 ; Drever v. Mawdesley, 16 Sim. 511 ; Forbes v. Limond, 4 De G. M. & G. 298). A creditor who for a long time delays (Gould v. Robertson, 4 De G. & Sm. 509), or if he refuses, to execute such deed within the time limited, and does not retract his refusal within such time (Johnson v. Kershaw, 1 De G. & Sm. 260), and a fortiori if he has set up a title adverse to the deed (Watson v. Knight, 19 Beav. 369 ; Brandling v. Plummer, 6 W. R. (V. C. K.) 117), will not be allowed to claim the benefit of its provisions. 394 VOLUNTARY TRUSTS. The principle according to which property vested in trustees *for the purpose o'f distribution among creditors, is revocable '- -■ on the ground of its being a mere arrangement for the benefit of the settlor and which he can therefore at any time revoke, will not, it seems, be applied as between the settlor and persons who are purely the objects of his bounty, the former having appointed an agent to ad- minister the bounty, and declared for whom it was intended. (Pater- son V. Murphy, 11 Hare, 88) ; nor to a case where the trust is to come into operation only on the death of its author, and where, subject to the trust for payment of debts, the lands charged are conveyed by way of bounty to a third person, inasmuch as in such a case the settlor must prima facie be understood to be dealing with his property as if he were disposing of it by will, and therefore as contemplating bounty throughout. Synnot v. Simpson, 5 H. L. Cas. 121, 139, 141. But see Montefiore v. Browne, 7 Ho. Lo. Ca. 241, 266 ; Burrowes v. Gore, 6 Ho. Lo. Ca. 901. Where a debtor assigns property for the benefit of his creditors, although no creditor may be aware of the assignment, the assignee may, nevertheless, take proceedings in equity to recover the property (Glegg v. Bees, 1 L. R. Ch. App. YO). Trust deeds for the benefit of creditors, in default of registration, either mider the 192nd or 194th sections of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134, repealed by 32 & 33 Vict. c. 83, except as to its past operation), cannot be received in evidence. In order to pass property in chattels verbally by way of gift, it has been laid down in some cases that there must also be a delivery from the donor to the donee. Hence, where there were words of gift, but the chattels remained in the possession of the douor (Irons v. Small- piece, 2 B. & Aid. 551), or even when they were in the possession of the donee at the time of the gift, so that no delivery was made (Shower V. Pilck, 4 Exch. 418), it was held that no property passed therein to the donee. In other cases it has been held, that a donatio inter vivos as distinguished from a donatio mortis causa does not require actual delivery, and it is sufficient to complete a gift inter vivos that the con- duct of the parties should show that the ownership in the chattels has been changed. Flory v. Denny, 1 Exch. 583 ; Ward v. Audland, 16 M. & W. 862 ; Winter v. Winter, 9 W. R. (Q. B.) HI. In Fariiigton v. Parker, 4 L. R. Eq. 116, under a settlement certain jewels were assigned upon trust for such person as Mrs. Glegg should by writing direct or appoint, and in default of such appointment, upon trust for her during her life for her separate use, and to be at her abso- lute disposal, *and her receipt, or that of the person to whom '- -I she should direct the jewels to be delivered, to be a good dis- charge. Mrs. Glegg, without anj^ direction in writing, delivered the jewels as an absolute gift to her daughter. Lady St. Vincent, who re- ELLISON V. ELIjISON. 395 tained them in her possession. It was held by Lord Romilly, M. E.., that under the gift and manual delivery Lady St. Vincent was abso- lutely entitled to the jewels. The delivery by the donor to the donee of securities transferable by delivery, will, with words of gift, constitute a valid donation ( Jf' Cul- loch V. Bland, 2 Giflf. 428). In Bromley v. Brunton, 6 L. R. Eq. 2'75, a cheque was given by A. to B., and presented without delay. The bankers had sufficient assets of A., but refused payment, because they doubted the signature. The next day A. died, the cheque not having been paid. It was held by Sir John Stuart, V. C, to be a complete gift inter vivos of the anount of the cheque, and ordered its paj'ment, with interest, by the executors of the donor. [It was said in Rhodes v. Childs, 14 P. F. Smith, 18, 24, on the authority of Gourley v. Linselhigler, 1 P. F. Smith, 345, that bills or checks drawn by the deceased on his banker, will pass by deliverj"- and become an executed gift. The point was not before the court in these instances. The weight of authority in the United States is the othey way ; Gow- perthwaite v. Shuffield, 3 Comstock, 243 ; Harris v. Clark, lb. 93 ; Winters v. Drury, 1 Selden, 325 ; Chapman v. Whity, 3 Id. 412. But a check drawn by a third person may clearly be the subject of a gift inter vivos or causa mortis ; Rhodes v. Childs, post, notes to Ward v. Turner.'] In order to establish the fact of a gift of chattels from a husband to his wife., there must be clear and distinct evidence corroborative of the wife's testimony. It is not necessary that he should deliver them to a trustee for his wife. It is sufficient if he constitutes himself a trustee for her by making the gift in the presence of a witness, or by subse- quent statements to a witness that he has made the gift ; but a mere declaration of intention to give is not sufficient ( Grant v. Grant, 34 Beav. 623). And it seems that presents made by a husband to his wife, whether in contemplation of, or subsequent to, their marriage, are the separate property of the wife, and do not form part of the husband's personal estate (lb.). % Although there has been no actual transfer of the legal interest in property to trustees, if the settlor has constituted himself a trustee for volunteers, a Court of equity will enforce the trusts. This is well illus- trated in Ex parte Pye, Ex parte Dubost, 18 Ves. 140, 145. In that case M. had, by letter, directed an agent in Paris to purchase an an- nuity for a lady, which was accordingly purchased, but in the name of M., the lady being at that time married, and also deranged. M. after- wards sent to his agent a power of attorney authorizing him to transfer the annuity into the lady's name, but died before the transfer was made. Lord Bldon held, that, although the legal interest remained in M., he 396 VOLUNTARY TRUSTS. had constituted himself a trustee for the lady. "The question," saj'S his Lordship, " involves the point, whether the power of attorney amounts here to a declaration of trust? It is clear that this Court will not assist a volunteer ; yet, if the act is completed, though voluntary, the Court will act upon *it. It has been decided, that, upon an '- -' agreement to transfer stock, this Court will not interpose ; but, if the party had declared himself to be the trustee of that stock, it be- comes the property of the cestui que trust without more, and the Court will act upon it. Upon the documents befor me, it does appear, that, though in one sense this may be represented as the testator's personal estate, yet he has committed to writing what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant." And see and consider Airey v. Hall, 2 Sm. & G. 315 ; Parnell v. Sings- ton, 3 Sm. & G. 38*7 ; and Kiddelly. Farnell, 3 Sm. & G. 428, appealed and compromised, 5 W. R. (L. J.) 793. In Wheatley v. Purr, 1 Kee. 551, H. 0. directed her liankers to place £2,000 in the joint names of her children, J. R W., M. W., and H. W., and her own as trustee for her children. That sum was accordingly entered in the books of the bankers to the account of H. 0. as trustee for J. R. W., M. W., and H. W. Tlie bankers gave H. 0. as trustee for J. R. W., M. W., and H. W., a promissory note for the amount, witli interest at 2^ per cent., and she gave the bankers a receipt for the promissory note. Lord Langdale, M. R., was of opinion that she had constituted herself a trustee for the plaintiffs, her children, and that a trust was completely declared, so as to give them a title to relief. See, also, Vandenberg v. Palmer, i K. & J. 204 ; Evans v. Jennings, 6 W. R. (V. C. S.) 616. A trust relating to lands must, under the Ith section of the Statute of Frauds, be manifested and proved by some writing {Foster v. Hall, 3 Ves. 696 ; Smith v. MaMhews, 9 W. R. (L. J.) 644). But a declara- tion by parol of the trusts of personal property will be sufficient to create a trust. Thus in M'Fadden v. Jenkyns, 1 Ph. 153, A. had sent a verbal direction to B., who owed him £500, to hold the debt in trust for C., a volunteer ; B. assented to and acted upon the direction, by paj'ing C. £10, as part of the trust money. Lord Lyndhurst, aflirnling the decision of Sir J. Wigram, V. C, reporte^l Hare, 458, held, that a declaration by parol was sufficient to create a trust of personal prop- erty, and that, as the debtor had assented to and acted upon the direc- tion, a complete and irrevocable trust was impressed upon the money. And see Peckham v. Taylor, 31 Beav. 250. Where, however, there is a declaration of trust by parol, if the case be one of doubt or difficulty upon the words which have been supposed to have been used, the Court will give weight to the consideration that the words, not being committed to writing in any definite and unques- tionable form, may not be the deliberately expressed sentiments of the ELLISON V. ELLISON. 397 party: Dipple v. Corles, 11 Hare, 183 ; *and see Paterson v. |-^n„„-| MurpJuj, lb. 91, 92. L *> J In the following cases it will be seen what will be considered to amount to a declaration of trust, and it may be observed, notwithstand- ing the remarks of Lord Justice Turner in Milroy v. Lord, 31 L. J. Ch. '198, 803, that there is an inclination on the part of the Court to hold that to amount to a declaration of trust, which according to a strict construcliou would amount only to an imperfect assignment : Framp. ton V. Frampton, 4 Beav, 287 ; James v. Bydder, 4 Beav. 605 ; Thorpe V. Owen, 5 Beav. 224 ; Stapleton v. Stapleton, 14 Sim. 186 ; Wilcocks v. Eanyngton, 5 Ir. Ch. Rep. 38 ; Donaldson v. Donaldson, Kay, 711, 717 • Woodroffe v. Johnston, 4 Ir. Ch. Rep. 319 ; Gray v. Gray, 2 Sim. N. S. 273 ; Ouseley v. Anstruther, 10 Beav. 461 ; Moore v. Darton, 4 De G. & Sm. 517; Paterson r. Murphy, 11 Hare, 88; Lloyd y. Chime, 2 Giff. 441 ; Steele v. Waller, 28 Beav. 466 ; Maguire v. Modd, 9 Ir. Ch. Rep. 452 ; Arthur v. Glarkson, 35 Beav. 458 ; Gee v. Liddell, lb. 621 ; Richardson v. Richardson, 3 L. R. Eq. 686 ; Morgan v. Dalleson, 10 L. R. Eq. 475 ; Miller v. Harrison, 5 I. R. Eq. 324 ; and see the remarks of Sir John Romilly, M. R., in Price v. Price, 14 Beav. 602. The dictum attributed to Lord Cranworth, C, in Scales v. Maude, 6 De Gex, Mac. & C. 51, to the effect that a mere declaration of trust by the owner of property in favour of a volunteer is inoperative, and that the Court of Chancery will not interfere in such a case, seems to be un- supported by the authorities, and is said by his Lordship in Jones v. Lock, 1 Law Rep. Ch. Ap. 28, to be "clearly wrong as a general state- ment of the law." The consent of a married woman, given before commissioners, for the transfer and payment to her husband of sums of stock and cash stand- ing in Court to her separate account, has been held not to amount to a declaration of trust, and that it was competent to her, at any time before the trausCer had been completed, to retract her consent : Pen/old v. Mould, 4 L. R. Eq. 562. A mere expression of an intention to divide property with, or to leave it to, others will not, it seems, be held to amount to a declaration of trust, and, like a mere promise to give, will not be enforced in equity ; Dipple V. Corles, 11 Hare, 183 ; Re Glover, 2 J. & H. 186; and see In re Mills's Estate, 7 W. R. (V. C. K.) 372 ; Forbes v. Forbes, 6 W. R. (V. C. W.) 92. A declaration of trust by the equitable owner of a chose in action vested in trustees will be supported. Thus, in Collinson v. Patrick, 2 Kee. 123, a bond, and all sums of money recoverable in respect thereof, had been assigned to trustees, in trust for such intents *and ^ purposes, and such person or persons, as E. P., a married '- -^ woman, should direct or appoint ; and, in default of appointment, for her separate use. E. P. afterwards appointed her interest in the bond to 399 VOLUNTARY TRUSTS. certain jjersons, in order to indemnif) them, in ease they should not be able to recover the whole of a sum appropriated by her husband, who was their solicitor, and for no other consideration appearing upon the deed. It was objected, that the deed being voluntary, and something requiring to be done by the party creating tlie trust, it was a trust which could not be executed by the Court. However, Lord Langdale, M. R., held, that a binding trust had been created. " It seems to me," said his Lordship, " that, so far as depended upon the party executing this deed, everytliing has been done to constitute an executed trust. It is certainly a matter well worthy of consideration how far the peculiar situation of a married woman, entering into such an engagement as the present, by which she binds her separate estate, is not entitled, in a court of equity, to the same species of protection which the law gives to persons entering into a legal obligation, and whether a contract of in- demnity so entered into should not, in this 'court, be supported by a valuable consideration. A declaration of trust is considered, in a cuurt of equity, as equivalent to a transfer of the legal interest in a court of law ; and, if the transaction by which the trust is- created is complete, it will not be disturbed for want of consideration. If this had been a transaction resting on an agreement not conferring the legal interest — if it had been an executory contract, this court, in the absence of con- sideration, would not have given effect to it ; but, if what has been done is equivalent to a transfer of the legal interest, the parties in whose favour the trust is created are entitled to have the benefit of it in this court ; and I am of opinion that tliis deed gives an interest to the plain- tiffs which does so entitle them : " see also Tierney v. Wood, 19 Beav. 330. Upon the same principle, if the equitable owner of property vested in trustees, as in Ellison v. Ellison, assigns it to them, or directs them to apply it upon trusts declared in favour of volunteers, and the trus- tees accept and act upon the trusts, they will be enforced in equity. In Bycroft v. Christie, 3 Beav. 238, Mrs. Rycroft, the cestui que trust of money in the hands of a trustee, by deed witliout consideration, directed part of the dividends to be paid by him for the maintenance of an infant, a stranger to Mrs. Kycroft, and covenanted to indemnify the trustee, and agreed to allow the same out of the dividends of the trust fund. The trustee accepted the new trust and acted upon the deed. Lord ^, „ ^ Langdale *M. R., held, that, as there was no further instrument r*2651 & 5 ! 7 '- -' or formality to be executed, from the moment when the direc- tion was signed and accepted by the trustee a valid and executed trust was created, which Mrs. Rycroft could not revoke. So in Meek v. Kettlewell, 1 Hare, 4'Jl, Sir James Wigram, V. C, observes, that, if the equitable owner of the property, the legal interest of which is in a trustee, should execute a voluntary assignment of the property, and authorise the assignee to sue for and recover the property from that ELLISON V. ELLISON. 399 trustee, and the assignee should give notice thereof to the trustee, and the trustee should accept the notice and act upon it, by paying the divi- dends or interest of the trust property to the assignee during the life of the assignor, and with his consent, it might be difficult for the exr ecutor or administrator of the assignor afterwards to contend that the gift of the property was not perfect in equity. See also Bentley v. Mackay, 15 Beav. 12 ; Bridge v. Bridge, 16 Beav. 322 ; Donaldson v. Donaldson, Kay, 711 ; Gilbert v. Overton, 2 Hem. & Mill. 110. It does not, however, seeln now to be considered essential to the validity of the creation of a trust by the beneficial owner of property, that there should be an acceptance or declaration of the trusts by the trustees in whom the legal interest is vested. Thus, in Tierney Vi Wood, 19 Beav. 330, where land and stock were vested in the plaintiff, Tierney, in trust for Wood, the latter signed a document addressed to Tierney, directing that the land and stock should after his death be held for the benefit of certain persons. The document was not attested. It was held by Sir J. Romilly, M. R., that an effectual trust within the meaning of the Statute of Frauds had been declared by the beneficial owner, and that the document was not testamentary. " The authori- ties," said his Honor, " show that the proper person to create the trust in personal property, is the person in whom the beneficial interest of the property is vested ; and the trust being created by the beneficial owner, the trustee is bound, and if disposed to refuse may be compelled to obey it. I am at a loss to find any reason which should cause this document to be effectual as a declaration of trust, so far as the stock is concerned, and not so, so far as the land is concerned. It is obvious, that in both cases the person enabled by law to declare the trusts is the same. In the case before me, there can be no doubt tliat if Mr. Tierney had, in pursuance of this paper, signed a document to the same effect, stating that he held the property on the trusts therein mentioned, the trusts would, apart from any question on the construction of the docu- ment, have been fully and completely declared ; and it is also clear, that if the trustee had declared that he *held the property on any trusts not recognised or sanctioned bj^Wood, the beneficial owner, such declaration of trust would have been insufficient and una- vailing, and would have given no interest to the supposed cestui que trust. A declaration of trust in writing, by Tierney, following that of Wood, would therefore have been merely formal, and would have been valid only so far as it followed his instructions, and would have been void to the extent, if any, that it departed from his directions. I think that the fair conclusion to be drawn from these considerations is, that the person to create the trust, and the person who is by law enabled to declare the trust) are one and the same, and that, conse- quently, the beneficial owner is the person, by law, enabled to declare the. trust." 400 VOLUNTARY TRUSTS. Nor is notice of the declaration of trust to the cestui que trust neces- sary : Tate v. Leithead, Kay, 658. And as between volunteers, notice to the debtor of aa assignment of a debt, will not affect priorities : Justice V. Wynne, 12 I. Ch. R. 289. If a testator by will gives personal propertj' upon trusts to be after- wards declared, he cannot, either by any instrviment not duly executed as a will or codicil, or by parol, make any valid declaration of trust ; and the propertj' will go either to the next of kin or the residuary lega- tees : Johnson v. Ball, 5 De. G. & Sm. 85. We must, however, carefully distinguish that class of cases in which the settlor constitutes himself a trustee for volunteers, from another class of cases in which a person has ineffectually attempted, by an im- perfect gift, to confer the whole interest upon volunteers or trustees for tlieir benefit ; for it has been repeatedly determined, that the most clear intention to confer an interest will not be sufficient to create a trust in favor of a volunteer. The leading case on this point is Antrobus v. Smith, 12 Ves. 39. There Gibbs Crawford made the following indorse- ment upon a receipt for one of the subscriptions in the Forth and Clyde navigation : " I do hereby assign to my daughter, Anna Craw- ford, all my right, title, and interest of and in the inclosed call, and all other calls, of my subscription in the Clyde and Forth Navigation.'' This not being a legal assignment. Sir S. Romilly argued, " that tlie father meant to make himself a trustee for his daughter of these shares." But Sir W. Grant, M. R., observed, " Mr. Crawford was not otherwise a trustee than as any man may be called so who professes to give property by an instrument incapable of convejdng it. He was not iu form declared a trustee ; nor was that mode oi doing what he pro- posed in his coaitemplation. He meant a gift. He says, he assigns the propertj'. But it was a gift not complete. The property was not trans- ^ ferred by the *act. Could he himself have been compelled to r*267l •- -• give effect to the gift by making an assignment 't There is no case, iu which a party has been compelled to perfect a gift, which, in the mode of making it, he has left imperfect. There is locus posnitentise as long as it is incomplete'" So, in Edward v. Jones, 1 My. & Cr. 226, wliere the obligee of a bond signed a memorandum, not under seal, which was endorsed upon the bond, and which purported to be an as- signment of the bond, without consideration, to the person to whom the bond was at the same time delivered. Lord Cottenham, upon the authority of the doctrine laid down in Antrobus v. Smith, which he said it was impossible to question, held, that the gift was incomplete, and that, as it was without consideration, the Court could not give effect to it. So, also, in Dillon v. Goppin, 4 My. & Cr. 647, a voluntary assignment of East India Slock and shares in the Globe insurance Company, by a deed poll, incapable of passing such property, was held, by Lord Cottenham, not to affect the settlor's interest in the East ELLISON V. ELLISON. 401 India Stock and the Grlobe shares. In Searle v. Law, 15 Sim. 95, A. made a voluntary assignment of turnpike road bonds and shares in an insurance and in a banking company to B., in trust for himself for life, and after his death for his nephew. He delivered the bonds and shares to B., but did not observe the formalities required by the Turnpike Act, and the deeds by which the companies were formed, to make the assign- ment effectual. Sir L. Shadwell, V. C, held, that on A.'s death no inter- est in either the bonds or the shares passed by the assignment, and that B. ought to deliver them to the executor of A. " If that gentleman," observed his Honor, " had not attempted to make an assignment of either the bonds or the shares, but had simply declared, in writing, that he would hold them upon the same trusts as are expressed in the deed, that declaration would have been binding upon him ; and what- ever bound him, would have bound his personal representative. But it is evident that he had no intention whatever of being himself a trus- tee for any one, and that he meant all the persons named in the deed as cestuis que trust to take the proA'isions intended for them through the operation of that deed. He omitted, however, to take the proper steps to make that deed an effectual assignment ; and, therefore, both the legal and the beneficial interest in the bonds and shares vested in him at his death." In Woodford v. Charnley, 28 Beav. 96, Alice Fisher was mortgagee in fee of land conveyed to her to secure 50001. and interest, but the mortgage deed contained no covenant for payment of the 5000L The mortgagor died intestate. Alice Fisher afterwards ♦executed a voluntary settlement by which she assigned the sum of 5000Z. to trustees, and gave them a power of attorney '- -' to recover it. The legal estate was never conveyed by Alice Fisher to the trustees. It was held by Sir John Romilly, M. R., that the volun- tary settlement was incomplete and could not be enforced against the settlor or any person claiming under her. See also Coningham v. Plunkett, 2 Y. & C. C. C. 245 ; Price v. Price, 14 Beav. 598 ; Scales V. Maude, 6 De Gex, Mac. & G. 43 ; Weale v. Olive, 11 Beav. 252 ; Peckham v. Taylor, 31 Beav. 250 ; Lambert v. Overton, 13 W. R. (V. C. S.) 227. However, assignments both of equitable and legal choses in action, although nothing passes thereby at law, have been held binding in favour of volunteers, where the assignor has done all in his power to make the assignment complete. Thus, in Sloane v. Gadogan, Sugd. V. and P., App. No. xxiv., 11th ed., Mr. W. Cadogan, having an equitable reversionary interest in a fund vested in trustees, assigned it to other trustees upon trust for volunteers. It was contended by Sir Edward Sugden, in his argument, that, in order to constitute an actual settlement, so as to enable a volunteer to claim the benefit of it, it is absolutely necessary that the relation of trustee and cestui que trust should be established ; that Mr. W. Cadogan did all he VOL I 26 402 VOLUNTARY TRDSTS. could ; but that is not enough : that he could not make an actual transfer ; that the trustees in whom it was vested would not have been authorized in transferring it of their own authority to the trus- tees of Mr. W. Cadogan's settlement. " If," he says, " a man is seised of the legal estate, and agree to make a voluntary settlement, it cannot be enforced. Can it make any difference that the legal estate happens to be outstanding ? Certainly not. As the settlement, there- fore, was not completely perfected, the Earl could not enforce it." Sir W. Grant, M. R., however, held, that the equitable assignment created a perfect trust. " The Court," observed his Honor, " will not interfere to give perfection to the instrument, but you may constitute one a trustee for a volunteer. Here the fund was vested in trustees : Mr. W. Cadogan had an equitable reversionary interest in that fund, and he as- signed it to certain trustees, and then the first trustees are trustees for his assigns, and they may come here ; for when the trust is created, no consideration is essential, and the Court will execute it though volun- tary." In Fortescue v. Barnett, 3 My. & K. 36, J. B. made a voluntary as- signment by deed of a policy of assurance effected upon his own life and in his own name for lOOOL, to trustees, upon trust for the benefit _ of his sister and her children. The deed was delivered *to one of the trustees, and the grantor kept the polic}'^ in his own pos- session. No notice of the assignment was given to the assurance office and J. B. afterwards surrendered, for a valuable consideration, the policy and a bonus declared upon it to the assurance olHce. A bill was filed by the surviving trustee of the deed against J. B. to have the value of the policy replaced. It was argued by Mr. Pemberton, for the de- fendant upon the distinction laid down by Lord Eldon in the principal case, between an actual transfer and a mere covenant to transfer stock, that the assignment of stock by deed, no actual transfer of the stock having been made, and an assignment of a policy of assurance by deed, the policy remaining in the hands of the grantor, stood upon exactly the same footing. But Sir J. Leach, M. R., held, that J. B. was bound to give security to the amount of the value of the policy assigned by the deed. " In the case," observed his Honor, " of a voluntary assignment of a bond, where the bond is not de- livered, but kept in the possession of the assignor, the Court would un- doubtedly, in the administration of the assets of the assignor, consider the bond as a debt to the assignee. There is a plain distinction be- tween an assignment of stock, where the stock has not been transferred, and an assignment of a bond. In»the former case, the material act re- mains to be done by the grantor, and nothing is in fact done which will entitle the assignee to the aid of this Court until the stock is transferred, whereas the Court will admit the assignee of a bond as a creditor. " In the present case, the gift of the policy appears to me to have been ELLISON V. ELLISON. 403 perfectly complete without delivery. Nothing remained to be done by the grantor ; nor could he have done what he afterwards did to defeat his own grant, if the trustees had given notice of the assignment to the assurance ofHce. The question here does not turn upon any distinc- tion between a legal and an equitable title, hut simply upon whether any act remained to he done hy the grantor which, to assist a volunteer, this Court would not compel him to do. I am of opinion, that no act remained to be done to complete the title of the trustees. The trustees ought to have given notice of the assignment ; but their omission to give notice cannot affect the cestui que trust." See, also, Oodsal v Webb, 2 Kee. 99 ; Pearson v. The Amicable Assurance Office, 2*J Beav. 229 ; Pedder v. Mosely, 31 Beav. 159. Lord Cottenham, in Edwards v. Jones, 1 My. & C. 238, in commenting upon Sloane v. Cadogan, and Fortescue v. Barnett, observes, " that in neither of them was any intention expressed by the learned judge to depart from the established *rule, but that, in both, the decision turned upon the question of fact, whether or not the relation of '- -' trustee and cestui que trust was actually constituted. In neither was it attempted to make an imperfect a perfect gift. In Sloane v. Cadogan, the claim was not against the donor or his representatives, for the purpose of making that complete which had been left imperfect, but against the persons who had the legal custody of the fund ; and the question was, whether the transaction constituted them trustees of the fund for the cestui que trusts. Sir W. Grant came to the conclu- sion that it did, and the consequence was that they were bound to ac- count. That case has been considered by Sir Edward Sugden as going a great way ; but upon the principle stated by Sir W. Grant, it is free from all possible question, for there was no attempt in that case to call in aid the jurisdiction of this court. " Fortescue v. Barnett falls precisely within the same observation, although there are some expressions in it, especially where the learned judge speaks of a bond which has been voluntarily assigned being con- sidered a debt to the assignee, which probably were not intended to convey the meaning they do There a party had insured a life, and the contract of the office was to pay to the party insuring, his executors, administrators, and assigns, but the practice of the office was stated to be, that, upon an assignment, the office recognised the assignee ; and the policy was, therefore, an assignable instrument. The policy was not assignable at law, but it was a title which, hy contract, was assignable as between the parties ; and the party in that case as- signed, but the assignee did not give notice to the office, and conse- quently, the original insurer dealt with the office, received a bonus, and then surrendered the policy. The Master of the Rolls in that case con- sidered, as he naturally would, whether this transaction was not a gift — whether it did not, in fact, confer a title on the assignee ; and if it did. 404 VOLUNTARY TRUSTS. then, consistently with all the authorities, he considered that he was bound to give the assignment its full effect ; and he put his decision expressly upon the fact, that the transaction was complete ; that there was nothing further for the donor or the donee to do ; that the latter had nothing to ask further from the donor." His Lordship then adds, " Whether, upon the circumstances of that case, it was right or wrong to come to that conclusion, is a question with which I have nothing to do. The principle of the decision is quite consistent with the other cases ; for it proceeds upon the same ground, namely, that, if the trans- action is complete, the Court will give it effect." r*9'7n *XIpon ths authority of SZoanev. Cadogan&ndFortescuev.Bar- nett, it has been held that the assignment of a debt to a volunteer was binding, although nothing passed at law. Thus in Blahely v. Brady,, 2 Dru. & Walsh. 311, A. made a voluntary assignment to B. of a note or memorandum in writing, being the acknowledgment of a sum of 1,620Z. thendue to him from K., and all interest then due, or which might there- after accrue due on the foot thereof, upon trust to pay the interest thereof unto A., his executors, administrators, and assigns, for his life, and a period of fourteen months afterwards, and, at the expiration of the said fourteen months, to pay out of the principal some small sums to and amongst certain persons and relations in the deed particularly men- tioned ; and as to the residue, in trust for B., his executors, administra- tors, and assigns, for his and theii- own benefit. The deed also con- tained a provision, whereby B., his executors, administrators, and assigns, were irrevocably appointed the attorneys of the said A., for the purpose of suing for and recovering the said debts. A. soon after- wards died, without having made any will or other disposition of the property. The administrator of A. refused to allow his name to be used to enable B. to recover the said sum, having actually himself com- menced an action for that purpose. Upon a bill filed by B. to restrain proceedings in the action, and to carry the trusts of the deed into execution, it was held by Lord Plunket, that, as the transaction between A. and B. was complete, the deed, though voluntary, should be carried into execution. " In this case," observed his Lordship, " as between the assignor and assignees, the gift is absolute ; and the differ- ence between the cases where something remains to be done, and those in which nothing remains to be done, is so fully established by the authorities, which have been cited on both sides in the argument, that it is unnecessary for me to enter into any enumeration of them. The case of Fortescue v. Barnett, besides recognizing the general distinction which I have just adverted to, bears directly on the present point. There the assignment of a policy of insurance was held valid and com- plete, though the instrument itself was never delivered. " It is said, but in my opinion, most erroneously, that the authority of that case is shaken by the case of Jones v. Edwards, before the ELLISON V- ELLISON. 405 present Lord Chancellor of England. It seems to me, that he expressly recognizes its authority, and on this principle, that, if the transaction, is complete, the Court will give it effect. It is true Lord Cotten- ham says, that the observation of Sir J. Leach, in Fortescue v. Bar- nett, 'that a *bond voluntarily assigned was considered as a r^nirn-i debt to the assignee,' was probably not intended to convey the meaning the words might bear ; but this observation of Lord Cotten- ham must, in my opinion, be merely understood as a guard against the supposition, that the mere assignment of a bond, unaccompanied by delivery, or by any other circumstances, would be consideied as a debt to the assignee. In the case before Lord Cottenham there was no assignment, but a mere memorandum entered on a bond, attached to another bond, which clearly was never intended to be given to the plain- tiff ; and he there dismissed the bill, on the ground of the transaction not being complete, and that a further act remained to be done by the donor. " The case of Uniacke v. Giles, 2 Moll. 25 T, does not resemble this. There the person entitled to a chose in action executed an assignment of it, to the defendant in trust for the plaintiff, aud did not deliver the deed, but kept it in her possession until her death ; and it was held that the retention of the deed in the custody of the donor made it revocable, and that it had been revoked. " The decision in Antrohus v. Smith cannot be drawn in aid of the defendant's case. There the conveyance was imperfect, never delivered : it was simply an indorsement on a receipt for subscription, and found among the papers of the executrix. " The present case differs from all these. The assignment as between the donor and donee is perfect; and the only objection is, that the chose in action is not legally assignable. Besides, it is admitted that the original security was, at some time during the life of the assignor, delivered to the assignee ; and, in addition to this, the assignment con- tains a full power of attorney to the assignee, which alone, in my opinion, ought to govern the case. "It is asked, why does the plaintiff come into this Court, if the assignment is imperfect ? The answer is obvious : he comes here because the property is in the defendant, to whom the ecclesiastical court has granted administration, and he is an administrator in trust. Now you may constitute a trustee for a volunteer ; and the case of Sloane v. Cadogan is directly in point as to that. The only difference is, that, in the present case, the law has created the trust ; and in Sloane v. Cado- gan the trust was created by the act of the donor. See also Parnell v. Hingston, 3 Sm. & Gr. 33T ; Gannon v. White, 2 Jr. Eq. Rep. 207 ; Roberts v. Lloyd, 2 Beav. 376 ; sed vide Sewell v. Moxsy, 2 Sim. N.S. 189." The remarks however of Lord Langdale in Ward v. Audland, 8 406 VOLUNTARY TRUSTS. Beav. 201, seem to be scarcely consistent with the cases of Sloane r*9'7^n *v. Cadogan, Fortescue v. Barnett, and Blakely v. Brady, for there his Lordship appears to be of opinion' that the mere voluntary assignment of a chose in action is not binding, upon the ground that nothing thereby passes at law, and the transaction is, there- fore, incomplete. This also seems to have been the opinion of Sir L. Shadwell, V. C, in Beatson v. Beatson, 12 Sim. 291. In Ward v. Audland, W. W., who was possessed of and entitled to certain household goods, and effects, a sum of 546Z. 2s. 6d. (the pay- ment of which was secured by a mortgage in fee of certain customary lands), and a policy of assurance for the sum of lOOOL payable after his death, by a voluntary deed assigned to the plaintiff all his house- hold goods, and all sums of money then owing to him, with all policies of assurance and other securities for the same, and all other his per- sonal estate, together with the mortgage deeds and writings relating to the premises, upon trust for W. W., for life, and, after his death, for others ; and he gave the plaintiff a power of attorney to get in any sum of money secured on mortgage ; and he also covenanted for further assurance. On the execution of the deed by W. W., it was delivered to the plaintiff; but W. W. continued in possession of the furniture thereby assigned, and in receipt of the income arising from the mortgage, and no notice of the assignment was given, either to the mortgagor or to the grantors of the policy of assurance. Lord Langdale, M. R., said : " Supposing the assignment to have been a complete and effectual assignment, there is not only no conflict, but no question nor any dif- ficulty as to the trusts which the plaintiff had to perform. If the property was legally vested in the plaintiff, he might have recovered it at law, and applied it on the trusts ; if the property was not legally and effectually vested in the plaintiff, then, as the deed was voluntary, this Court could afford no assistance to the plaintiff in recovering it ; and, under these circumstances, the only question between the parties is, what is the legal effect of the assignment ? The debt and policy of assurance are choses in action not assignable at law, and it is plain that the whole estate and interest of the assignor did not and could not pass to an assignee ; and I apprehend, that, in the case of a voluntary deed, neither the assignor nor his executor could have been compelled to permit the assignee to use his name for the recovery of the debt. The assignment was deficient, because it did not vest in the assignee all that the assignor professed, and intended to pass ; and no instance, except the case of Fortescue v. Barnett, has been produced, in which this Court has given effect to such an assignment. *It ■- -' does not appear by the report what were the grounds on which Lord Cottenham, in deciding the case of Edwards v. Jones, gave the interpretation he did to Fortescue v. Barnett ; but it is certainly clear, that Sir John Leach did not in that case intend to alter the rule of the ELLISON V. ELLISON, 407 Court which was previously established ; and it is also clear that the circumstances, by which Lord Cottenham seemed to think Fortescue v. Barnett might be explained, are not found in the present case. It ap- pears to me, that neither a voluntary assignment by deed of a mort- gage debt, accompanied by a grant, not specifying the particular estate, but of all estates held in mortgage, and by a covenant for further assur- ance, without delivery of the mortgage deed or notice to the mortgagor, nor the voluntary assignment of a policy of assurance retained in the hands of the assignor, and without notice given to the grantor, though accompanied by a covenant for further assurance, can be considered as a complete and effectual assignment, to be acted upon and enforced by the assignee, without any further or other act to be done by the assignor. With respect to the furniture, the bill claims the legal right to it for the plaintiff; and if he had it, I am of opinion that he ought to have proceeded at law to recover it. With respect to the mortgage, the bill alleges the legal estate to be in the defendants, or some of them, and prays for a conveyance in aid of the voluntary gift. On the whole, I think that the plaintiff is not entitled to any relief, and that the bill must be dismissed but with costs." Sir J. Wigram, V. C, also (1 Hare, 474), was clearly of opinion, that an assignment under seal of that which did not pass at law by the operation of the assignment itself, unaccompanied by other acts, was no better than a covenant or agreement to assign : see Meeh v. Kettle- well^ 1 Hare, 464. There M., who in the event of surviving her daugh- ter, and of the death of her daughter without issue, would, as next of kin, be entitled to a fund which was vested in trustees, executed a voluntary assignment of her interest in the fund to the husband of the daughter, and declared the trusts of the assignment as to part for the benefit of M. herself, and as to another part for the daughter's husband absolutely. No notice of the assignment was given to the trustees. The daughter afterwards died without issue, and the husband filed his bill against the trustees and M., to compel the performance of the trust. Sir J. Wigram was of opinion, upon the authority of the cases of Col- man V. Barrel, 3 Bro. C. C. 12, and Holloway v. Headington, 8 Sim. 324, that an assignment under seal of that which did not pass at law by the operation of the assignment, *itself, stood upon no bet- ter ground than a covenant or agreement to assign : and that a ^ -^ voluntary assignment, unaccompanied by any other acts, was not to be regarded as effectual to pass an equitable interest. His Honor there- fore held, that the voluntary assignment did not create a trust which equity would enforce ; observing, however, that he decided only that a voluntary assignment of a mere expectancy, not communicated to those in whom the legal interest was, did not create a trust in equity, within the principle of the cases relied upon by the plaintiff. This decision, on appeal, was affirmed by Lord Lyndhurst : 1 Ph. 342. See also Beat- 408 VOLUNTARY TKUSTS. son V. Beatson, 12 Sim. 281 ; Ward v. Audland, 8 Sim. 511 ; S. C, C. P. Coop. Rep. 146 ; 8 Beav. 201. The leading case, however, of Kekewich v. Manning (1 De Grex, Mae. & Gr. 1Y6) must be considered in effect, though perhaps not expressly, as overruling Holloway v. Headington, (8 Sim. 324) ; Ward v. Audland, (8 Beav. 201) ; S. G., C. P. Coop. Rep. 146; 8 Beav. 201, and even Meek v. Kettlewell, unless that case can be supported upon the ground that it was the assignment of a mere expectancy. The case of Kekewick V. Manning is as follows : A lady entitled absolutely to the reversion in stock, subject to the life interest of her mother therein, and which stock was standing in the joint names of herself and her mother, assigned her interest in this stock on her marriage, to trustees in trust for herself for, remainder to her husband for, life, and after their decease, in trust for a niece, and for the issue of the marriage and the issue of the niece according to appointment ; and in default of issue of the marriage, in trust for the niece of the settlor. No transfer of the fund took place, but the mother had notice of the settlement. There was no issue of the marriage. It was held by the Lords Justices Knight Bruce and Lord Cranworth, that even if the settlement were voluntary as regarded the niece and not supported by the marriage consideration (which point, however, the Court did not decide), the assignment being complete would be enforced by the Court. " Suppose'," said Lord Justice Knight Bruce, " stock or money to be legally vested in A. as trustee for B. for life ; and subject to B.'s life interest, for C. absolutely ; surely it must be competent to C. in B.'s lifetime, with or without the consent of A., to make an effectual gift of C.'s interest to D. by way of mere bounty, leaving the legal interest and legal title unchanged and untouched. Surely it would not be consistent with natural equity or with reason or expediency to hold the contrary, C. being sui juris, and acting freely, fairly, and with suflBcient advice r*9'7An *^i and most of the Abridgments, which imperfectly collect the [*300] authorities upon this head. According to my own understand- ing, that case is to be classed rather among those of relief in equity upon a security that has been lost,^ than under this head : but the fact of its existence is a circumstance of evidence that this doctrine has obtained in professional practice. There is no other case between that and Chapman v. Tanner^ which is very ' Hearle v. Botelers, Gary, 35. ^ See 5 Ves. 238, n. ' 1 Vern. 367. 456 VENDOR'S LIEN. imperfectly reported ; and its authority is weakened by the observation in subsequent cases, that there was a special agree- ment that the vendor should keep the writings ; and it is stated as a fact, that he had not taken any security. Taking it to be a decision in favour of the lien under those circumstances, the declaration of the-Court, which was the natural equity, shows strongly how the law upon this subject was understood ; and that ease, therefore, has considerable weight. The doctrine is prob- ablj' derived from the civil law as to goods, which goes further than our law, by which, though the right of stoppage in transitu is founded upon natural justice and equity, yet if possession, either actual or constructive, was taken by the vendee, the lien is gone. That is not so by the civil law. The digest states :' "quod vendidi non aliter fit accipientas quam si aut pretiurn nobis solutuni sit, aut satis eo nomine factum, vel etiam tidem habuerimus emptori sine ulla satisfactiouc ; " which'poiuts at this article of security ; but with those excepted cases, the lien, accord- ing to the civil law, is so strong, that the goods may be taken out of the possession of the individual who had obtained actual or constructive possession of them. The next case is Bond v. Ke.nt^ the circumstances of which are special — a mortgage for part of the money, and a note for the residue. It was urged with considerable, perhaps not conclusive, weight, that the express charge of a part gave a ground for the inference, that a lien for the residue was not intended. The case, however, goes to prove, that, in equity, this lien was supposed to r*^on ^^i^^ > *amounting to an admission, that, without those '■ -' special circumstances, thjre would have been a lien. The next case is Coppin v. Coppin,^ where the doctrine of Pollexfen v. Moore* as to marshalling, was practically, though I doubt whether it ought to have been, admitted. I should men- tion Gibbons v. Baddall,^ where it is expressly stated, that the lien remained, though a note was given for part of the purchase- money ; but I cannot ascertain the date of that decision. In Pollexfen v. Moore, Lord Hardwicke affirms the lien of the vendor upon the estate for the remainder of the purchase-money, consid- ering the vendee from the time of the agreement a trustee as to the money for the vendor ; but adds, that " this equity will not extend to a third person." If that is to be understood, that this equity would not extend to a third person, who had notice that the money was not paid, Lord Hardwieke's subsequent decisions contradict that: if the meaning is, that he would follow the case of Coppin v. Coppin, and that, if the vendor exhausted the personal assets, the legatee of the purchaser should not come up;)n the estate, there is great difficulty in applying the principle ; as it would then be in the power of the vendor to administer the assets as he pleases, having ' Dig., lib. 18, tit. 1, 1. 11 ; Inst., lib. 2, tit. 2, § 41. « 2 Vern. 281. » 2 P. Wms. 391 '3 Atk. 272. * 2 Eq. Oa. Abr. 683, n. MACKRETH V. STMMONS. 457 a lien upon the real estate to exhaust the personal assets, and dis- appoint all the creditors, who, if he had resorted to his lien, would have been satisfied ; and in that respect, with reference to the principle, the case is anomalous. The next case in which the doctrine was admitted is Harrison V. Southcole,'^ followed by Walker v. Preswickf which case, it is remarkable, was not cited in Fawell v. Heelis:^ and in Burgess V. Wheate* Sir Thomas Clarke lays down the rule, both as to vendor and vendee, thus : — Where conveyance is made prema- turely, before money paid, the money is considered as a lien on that estate in the hands of the vendee. So, where money was paid prematurely, the money woald be considered as a lien on the estate in the hands of the vendor for the personal represen- tatives of the purchaser." Tardiffe v. *Snrughan^ is poQo-] very material upon this point, as it is represented^ as a '- -^ case in which the lien was held to attach upon the two moieties of the estate ; but it has been also considered' a case, whether of lien upon the land or not, for contribution upon the circumstances between the sisters: giving the one sister a right to call upon the husband of the other to pay a moiety of the annuity. In another case, also, Powell v. , whether accurate or not I cannot trace, Lord Camden determined in favour of the lien. In Fawell v. Heelis^ Lord Bathurst's opinion certainly was, for reasons best stated in the case of Nairn v. Prowse^ by Sir Samuel Romilly, that the bonds taken by the vendor furnished evidence, that credit was not given to the land ; and therefore there was no lien. In Beckett v. Goniley^" Lord Thurlow says, it was compared to a person selling an estate, and not receiving the money ; and, therefore, there is a lien : asserting the general doctrine as familiar, but distinguishing that case upon the nature of the transaction : younger children joining the eldest in a mortgage ; discharging the estate from their portions ; and by their consent the whole money being paid to the eldest son : the lien being dis- charged by that transaction. In the argument of Blackburn v. Oregson^^ Lord Kenyon took the doctrine to be perfectly clear ; and it is not possible to state a stronger judicial opinion than Lord Loughborough expressed, that the lien does exist, though it is not a decision. In Smith v. Hibberd^^ it was insisted that the delivery of possession, upon pay- ment of a small part of the money, was evidence that he meant to trust to the personal security ; but it was held clear, that the money contracted to be paid was a specific lien upon the premi- ses. The contract for payment of the money is itself, in a sense, ■ 2 Ves. 389 ; see 393. ^ 2 Ves. 622. ' Amb. 724 ; 1 Bio. 0. C. 432, n., 8d edit. ; 2 Dick. 485. * 1 Black 123 ; see 150. = Cited Amb. 725 ; 1 Bro. C. C. 423. « 1 Bro C. C. 423., in Blackburn v. Gregson. ' Amb. 726, in Fawell v. Heelis. 8 Amb 734; 1 Bro. C. C. 432, n.. 3d ed. ; 2 Dick. 485. » 6 Ves. 752. ■" 1 Bro C. C. 853 ; see 358. " 1 Bro. 0. C. 420. i" 2 Dick. 730. 458 vendor's lien. a security full as good as a note. I do not state, as an authority, what appears upon this subject in A.usten v. Halsey^ as it is a mere dictum, and a dictum that fell from me; but, endeavouring to state this doctrine as accurately as I could, I see I expressed it r^tqr,q-| 1^ *these words ■} " That the vendor has a lien for the '- -^ purchase-money, while the estate is in the hands of the vendee. I except the case where upon the contract evidently that lien by implication was not intended to be reserved." In the case of Elliott v. Edwards,^ this is the doctrine of Lord Alvanley, a very experienced judge in equity, with reference to whom I may say, his judgments will be read and valued as pro- ducing great information and instruction to those who may practise in Courts of equity in future times. He there states, that, if a man, having purchased an estate, conveys it before the purchase-money has been paid, a Court of equity will compel the person to whom the estate was conveyed to pay that money, pro- vided he' knew at the time he took the conveyance that it had not been paid. The next case in equity is Nairn v. Vrowse^ before the Master of the Rolls, in w?iich it was contended that there was no lien ; the vendor had taken a security for the money, payable at a future time, and during the interval the vendee might have sold the stock. The Master of the Rolls, in his judgment, admitting the general doctrine as to the vendor's lien, observes upon the question, whether a security taken will be a waiver, that by con- veying the estate without payment a degree of credit is given to the vendee, which may be given upon the confidence of the exist- ence of such lien ; and it may be argued, that taking a note or a bond cannot materially vary the case ; a credit is still given to him, and may be given from the Fame motive, not to supersede the lien, but for the purpose of ascertaining the debt, and counter- vailing the receipt indorsed upon the conveyance. There is great difficulty to conceive how it should have been reasoned, almost in any case, that the circumstance of taking a security was evidence that the lien was given up, as in most cases there is a contract under seal for payment of the money. The Master of the Rolls, having before observed that there may be a security, which will r*^041 ^^^® ^'^® effect of a waiver, proceeds to express his *opin- '- ^ ion, that, if the security be totally distinct and inde- pendent, it will then become a case of substitution for the lien, instead of a credit given on account of the lien ; meaning that, not a security, but the nature of the security, may amount to satisfactory evidence that a lien was not intended to be reserved, and puts the case of a mortgage of another estate, or any other pledge, as evidence of an intention that the estate sold shall re- main free and unencumbered. It must not, however be under- stood that a mortgage taken is to be considered as a conclusive ' 6 Ves. 475. ' 6 Ves. 4fj3. » 3 B. & P. 181 ; see 183. * 6 Ves. 753. MAOKRETH V. SYMMONS. 459 ground for the inference that a lien was not intended, as I could put many instances that a mortgage of another estate for tlie purchase- money would not be decisive evidence of an intention to give up the lien, though, in the ordinary ease, a man has always greater security for his money upon a mortgage than value for his money upon a purchase; and the question must be, whether, under the circumstances of that particular case, attend- ing to the worth of that very mortgage, the inference arises. In the instance of a pledge of stock, does it necessarily follow that the vendor, consulting the convenience of the purcliaser by per- mitting him to have the chance of the benefit, therefore gives up the lien which he has ? Under all the circumstances of that case the judgment of the Master of the Rolls was satisfied that the conclusion did follow ; but the doctrine as to taking a mortgage or a pledge, would be carried too far if it is understood, as appli- cable to all cases, that a man taking one pledge therefore neces- sarily gives up another; which must, I think, be laid down upon the circumstances of each ease, rather than universally. In the case of Hughes v. Kearney'^ Lord Redesdale states the doctrine; and the proposition is, not merely that the vendor might have security, but that he relied upon it : and a note or bills are con- sidered not as a security, but as a mode of payment. From all these authorities the inference is, first, that, generally spraking, there is such a lien; secondly, that in those general cases in which there would be the lien, as ^between vendor and vendee, r^orjc-i the vendor will have the lien against a third person, who had '- ■' votice that the money was not paid. Those two points seem to .be clearly settled. I do not hesitate to say, that, if I had found no authority that the lien would attach upon a third person, having notice, I should have no difficulty in deciding that upon principle, as I cannot perceive the difference between this species of lien, and other equities, by which third persons, having notice, are bound. In the case of a conveyance to B., the money being paid by A., B. is a trustee; and C. taking from him, and having notice of the payment by A., would also be a trustee, and many other instances may be put. The more modern authorities upon this subject have brought it to this inconvenient state — that the question is not a dry question upon the fact, whether a security was taken, but it de- pends upon the circumstances of each case whether the Court is to infer that the lien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the other security was taken. In this case, having, as other judges have had, to determine this question of intentioQ upon circumstances, I may mistake the fair result of the circumstances which I have endeavoured to collect. I must say, I have felt from the first, that there is, upon the part of the plaintiff", that natural justice and equity, which ■ 1 S. & L. 133. 460 vendor's lien. excite a wish, that I could enforce the lien throughoat ; but, first, as to the annuities, I am persuaded, that, with reference to that part of the case involving the question of lien as to the consider- ation, or any part of it, or any sum of money, the quantum of which is to be estimated with reference to the present value, or the past or future payments, this is a case in which the plaintiff intended to rely entirely xipon the personal security, the bond for 20,000^.; and that was the conception of Martindale also ; by whose default of payment, therefore, the estate is not now sub- ject to the lien in respect of the consideration of the annuities, or r*SOfil ^"-^ allowance in respect of it. See how it *stands. In '- -^ 1790, the plaintiff, as principal, and Martindale, as suretj-, being engaged in an obligation, which I understand to be a per- sonal one, for these annuities, agree to change situations ; Martin- dale to be the principal, and the plaintiff to be surety ; in consideration of which the plaintiff agrees to give 9000^., secured by a mortgage. It rests upon that until 1793, when the trans- action takes this course: that Martindale shall be no longer a mortgagee, but owner of the reversion in fee, and, which is material, of the reversion, expectant upon the plaintiff's life estate. The annuities remain upon the old footing: that is, some payments were made, or arrears accrued, between 1792 and 1793, and payments were to arise from time to time. The value given to Martindale, in 1792, by the mortgage of 9000^., for taking the liability upon himself, was a value which merely, by the lapse of time, between 1792 and 1793, must have varied. If the annuities had been paid there must have been a difference in the estimation ; also, de anno in annum, the value was decreasing, not only as the annuities were wearing out, but also as the num- ber of the annuitants was decreasing by death. It is impossible, it is not natural, to suppose, that parties dealing for the consideration of annuities and the purchase of a reversion, which might not take effect in possession until all the annuitants were dead, relied on that reversion as security, in addition to the indemnity by the bond for 20,000^.; in the original transaction the estate being pledged for the sum of 9000^., as if actually paid. Then, as to the lien, for what is it ? Is it for the original sum ? That it cannot in justice be. Is it for future paj'meuts — that, one sum being paid, it does not attach ? another sum not being paid, it does attach ? a charge upon the reversion arising from time to time, accordingly as these payments are, or are not, made ? And is that inference to be drawn where a conveyance was exe- cuted without the least notice of such an intention — a security taken, not of itself sufficient to exclude the purpose of such a r*S071 ^'®" ■ ^^^ ^^® nature of the subject, connected *\vith the "- J fact of that security taken, is decisive proof against such an intention ; and it appears accordingly in the other cause, Symmons v. Rankin, that Mackreth and Martindale joined in the MACKRBTH V. SYMMONS. • 461 conveyance to Coutts, to secure an annuity of 20001., without the least reference to such an intention. I admit that the opinion of Lord Loughborough,' that the case, before Lord Camden,^ went upon the ground of lien, is an author- ity very considerably against my opinion ; and I cannot say upon what the case did proceed, if not upon tljat ground ; as the estate, given by the wife to her husband tor his life, after her own death, if not ali'ected by the lien, could not be bound to pay the annuity. If that case is accurately represented, Lord Camden's opinion seems to have been that the mere circumstance of an estate given in consideration of an annuity, with a bond, would not prevent the lien attaching from time to time ; and, so understanding it, I cannot bring my mind to the conclusion that it is an authority which ought to lead me to determine, that, with reference to these annuities, there is a lien, either for the original value, the present value, or the future payment, which may or may not become due. As to the other part of the case, I have considered long, whether the conclusion is just, that, not meaning to have a lien, as I think this party did not, with regard to the annuities, he should mean to have a lien as to the sum of money due to Manijers. My individual opinion is, that the intention was the same as to both ; but, with regard to the latter, the cases author- ise the lien ; unless it is destroyed by particular circumstances, which do not exist hei'e. That sum is precisely in the condition of a part of the consideration, not paid ; and then the inference in equity, unless there are strong circumstances, getting over it, is, that a lien was intended. This comes very near the^octrine of Sir Thomas Clarke,^ which is very sensible ; that, where the con- veyance, or the payment, has been made by surprise, there shall be a lien. This plaintiff understood at the time of the convey- ance, *that this money was to be paid on his account to r*oAOT Manners ; which is the same as if it was to have been •- ^ paid to himself, and was not paid ; and then the only question is, whether, as, from the special circumstances as to the value and nature of the annuities, 1 am to infer that a lien was not intended as to them, I must make the same inference with respect to this gross sum ; as to which, if the annuities were not mixed with the transaction, the doctrine of equity is, that the lien would attach. As to that sum, my judgment is, that the plaintiif has a lieu. It is contended that there are other circumstances in this case; that the defendant, Symraons, has a conveyance of the estate without notice, or, rather, a contract; as he had notice at the time of the conveyance. It is not necessary to go into the doctrine as to the efiect of notice at the time of the conti-act, or at the time of payment of the money ; though there is no doubt the defendant, when he took his conveyance, had notice from the 1 See Blackburn v. Grcgson, 1 Bro. 0. C. 420. s Tardiife v. Scrughan, stated 1 Bro. C. C. 423. ' Burgess v. Wheate, 1 Black, 150. 462 . vendor's LIEN. recitals in his title-deed of Mackreth's rights and Martindale's obligations, as vendor and vendee. Neither is it necessary to go into the consideration of another argument ; that the defendant's money was not originally lent upon the faith of the land. There is a great difference between the effect of a judgment, as attach- ing upon the land, and a special agreement by a creditor for a securit}' upon the land. It is not, however, necessary to deter- mine such questions ; as neither the plaintiff nor the defendant Symmons has the legal estate, which appears in the other cause, Symmons v. Rankin, to be in Coutts, under the conveyance of 1793, in which Martindale and Mackreth joined ; and then, between equities, the rule "Qui prior est tempore potior est jure,"' applies. The result of this case is, that the bill must be dismissed as it regards the annuities, and is right as to the other part of the claim ; and, being right in one point, and wrong in the other, the decree must be without costs. r^qnq-] *This case was mentioned by way of motion to vary '- -' the minutes, upon a misunderstanding as to the costs. Lord Chancellor Eldon, having repeated the ground upon which no costs were given, made the following additional observations : — Since the judgment was pronounced, I have met with a case which was not cited in the argument, but is referred to in Mr. Sugdeu's work,^ which seems to me to be a book of considerable merit,^ in which this subject is considered with much attention, and he contEs to a conclusion different from mine. I looked into the Registrar's Book for that case, the name of which I do not recollect ; and it does seem to me that his inference is not the necessary inference, arising from the circumstances of that case, as I find it in the Registrar's Book. I mention this, to show that I have not withdrawn from the opinion I have expressed upon this subject ; as to which, conceiving it to be of great importance, I should, if convinced, be very ready to retract f but, having endeavoured to collect all the doctrine of the Court upon it, I am sure I am right in that. I wish I was as sure in the application of the evidence. In the important and leading case of Mackreth v. Symmons, Lord Eldon, in his elaborate and learned judgment, very fully examines the authorities upon the doctrine of the vendor's equitable lien for unpaid purchase-money. The doctrine itself, which at the present day is • This rule only applies when the equities are equal. See Rice v. Kice, 2 Drew. 1. 2 The case alluded to by the Lord Chancellor appears to be Comer v. Walkley, stated 356, 2nd edit. ; 465, 866, 11th edit., Sugd. V. & P. ' The work ou Vendors and Purchasers, the 14th edition of which appeared in the year 1862. MACKRETH V. SYMMONS. 463 seldom, if ever, brought into dispute, is thus stated by Lord Eldon in the principal case : — " Where," observes his Lordship, " the vendor conveys, without more, though the consideration is upon the face of the instrument expressed to be paid, and by a receipt indorsed upon the back, if it is the simple case of a conveyance, the money, or part of it, not being paid, as between the vendor and the vendee, and persons claiming as volunteers, upon the doctrine of this Court, which when it is settled has the effect of a contract, though perhaps no actual contract has taken place, a lien shall prevail ; in the one case, for the whole consideration ; in the other, for that part of the money which was not paid." See also Chapman v. Tanner, 1 Vern. 26Y ; Austen v. Halsey, 6 Ves. 475 ; and the vendor of land to a railway company has been held to have a lien in respect of unpaid *compensation as well as purchase-money r-^„,„-, [Walker v. The Ware, Hadham, and Buntingford Railway L. J Gompavy, 1 L. R. Eq. 195, 35 Beav. 52), unless such compensation is the subject of a separate agreement between him and the Company (lb.), and he is not deprived of such lien by a deposit and bond under the 85th section of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18,) (lb.), or by accepting a deposit in the names of trustees in lieu of the statutory deposit, if the purchase and compensation moneys exceed the deposited sum, (lb.) ; and also as against another Company, lessee of the Company which made the purchase (Bishop of Winchester v. Mid- Hants Railway Company, 5 L. R. Eq. It ; Cosens v. Bognor Railway Company, 1 L. R. Ch. App. 594) ; and the Court of Equity will, although the railway may have been made over the land, and opened for public use, enforce the lien by sale (lb.), ( Wing v Tottenham and Hampstead Junction Railway Co., 3 L. Rep. Ch. App. 140), and will in the mean- time appoint a receiver ; but it is now ultimately settled, overruling on that point the cases of Cosens v. Bognor Railway Company, 1 L. R. Ch. App. 594, (where, however, Turner, L. J., was in favour of a receiver) and {Earl St. Germains v. Crystal Palace Railway Company, 11 L. R. Eq. 568), that the Court will not grant an injunction to restrain the Com- pany from running trains or engines over the land until the sale of the land agreed to be taken {Pell v. Northampton and Banbury Junction Rail- way Company, 2 L. R. Ch. App. 100 ; Munns v. Isle of Wight Railway Company, 5 L. R. Ch. App. 414 ; reversing the decision of Sir W. M. James, V. C, reported, 8 L. R. Eq. 653. Lycett v. Stafford and Uttoxe- ter Railway Company, 13 L. R. Eq. 261). "But the vendor of land to a railway company will not, after payment of the purchase-money, be en- titled to a lien on the land sold for the costs of arbitration under the 'Lands Clauses Act, 1845,' payable to him by the Company: JEarl, Ferrers v. Stafford and Uttoxeter Railway Company, 13 L. R. Eq. _ 524." Where a decree had been obtained by a vendor against a Railway Company for specific performance of a contract for sale, in which in- 464 VENDOR'S LIEN. quiries were directed to ascertain tlie amount due for damages and costs, and the amount, when found due, together with the purchase-money, was ordered to be paid, but was not declared to be a charge on the land, it was held by Lord Romilly, M. R., that the vendor was not entitled, under the liberty to apply, to enforce by petition a lien on the land for the sums due, especially as there were incumbrances not parties to the suit, whose rights would be affected by such lien, {Attorney-General v. Sittinghourne and Sheerness Bailway Company, 1 L. R. Eq. 636 ; 35 Beav. 268). The lien also attaches if possession of the estate has been delivered to the purchaser, although there has been no conveyance of it to him {Smith V. Hibbard, 2 Dick. 130 ; Charles v. Andrews, 9 *Mod. '- -^ 158 ; Topham v. Constantine, Taml. 135 ; Evans v. Tweedy, 1 Beav.-55 ; Andrew v. Andrew, 8 De G. Mac. & G. 336 ; Langstaff v. Nicholson, 25 Beav. 160) ; and upon copyholds and leaseholds, as well as freeholds ( Winter v. Lord Anson, 3 Russ. 492 ; Matthew v. Bowler^ 6 Hare, 110 ; Wrout v. Dawes, 25 Beav. 369). When, however, the vendor has taken from the purchaser a security for the unpaid purchase-money, the question arises, whether that amounts to an abandonment of the lien ; for its existence must be decided, not as a dry question of fact, whether a security was taken, for the mere taking of a security is not a waiver of the lien, but it depends upon the circumstance of each case, whether the Court is to infer that the lien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the security was taken. The inconvenience of such a doctrine, so unsatisfactory and produc- tive of litigation, may well have caused Lord Bldon to observe, in the principal case, " that it would have been better at once to have held, that the lien should exist in no case, and the vendor should suffer the consequences of his want of caution ; or to have laid down the rule the other way so distinctly, that a purchaser might be able to know, with- out the judgment of a Court, in what cases it would, and in what cases it would not, exist." It is now settled, that a mere personal security for the purchase- money, as a bond (Hearle v. Botelers, Gary, 35, and Winter v. Anson, 3 Russ. 488, reversing the decision of Sir J. Leach, V. C, 1 S. & S. 434 ; Collins v. Collins, 31 Beav. 346,) a bill of exchange (Hughes V. Kearney, 1 S. & L. 136 ; Teed v. Garuthers, 2 Y. & C. C. C. 31 ; Grant v. Mills, 2 V. & B. 306), or a promissory note {Gibbons v. Bad- dall, 2 Eq. Ca. Abr. 682, n. ; Hughes v. Kearney, 1 S. & L. 132; Ex parte Pealce, 1 Madd. 346 ; Ex parte Loaring, 2 Rose, 79), will not, without more, be sufficient evidence of the intention of the vendor to give credit exclusively to the purchaser, or to his security, so as to take away the lien. In Winter v. Lord Anson, 1 S. & S. 434, there was an agreement for MACKEETH V. SYMMOKS. 465 the sale of an estate, by which it was, amongst other things, agreed that the amount of the consideration-money should be secured by the bond of the purchaser to the vendor, with interest at 4L per cent., and should remain so secured, during the life of the vendor, on the regular pay- ment of interest. A conveyance was executed, in pursuance of the agreement, and in consideration of the purchase-money therein ex- pressed to have been paid, and the vendor's receipt was indorsed upon it. Part only of the purchase-money had, in fact, been paid, and the residue was secured by bond conditioned *to be void on payment p^„, „-, by the vendee, to the executors, administrators, or assigns of '- the vendor of the residue of the purchase-money within twelve months next after the decease of the vendor, with interest at 4Z. per cent. Sir J. Leach, M. R., although he at first decided in favour of the lien, afterwards decided against it, upon the ground that the case was, in principle, the same as if the conveyance had stated the real contract of the parties ; and that by the effect of that contract, the vendor agreed to part with his estate in consideration of the bond for the future payment of the price; and that, when such bond was execu- ted, the estate passed to the vendee in equity, as well as at law. " Sup- pose," observed his Honor, " it had been expressed in this conveyance, that the price was not to be paid until the death of the vendor, and there had been a covenant on the part of the purchaser then to pay the amount, and to pay the interest in the meantime ; could it then have been said that it appeared by this deed that the vendor had contracted not to part with his estate until the actual payment of the price ? Would it not rather have been the true effect of the language of the conveyance in such case, that the vendor had contracted to part with his estate presently, and not in consideration of the actual imme- diate payment of the price, hut in consideration of the covenant for the future payment of that sum, with interim interest : and that having, therefore, the covenant, which was the consideration bargained for, the estate must pass by the conveyance in equity, as well as at law ?" This decision was reversed by Lord Lyndhurst, who held, that the circum- stance, that the money was secured to be j)aid at a future daj', did not affect the lien. "I do not think," said his Lordship, ''that the lien is affected by the fact of the period of payment being dependent on the life of the vendor.' That circumstance does not appear to me to afford such clear and convincing evidence of the intention of the vendor to rely, not upon the security of the estate, but solely upon the personal credit of the vendee, as would be necessary in order to get rid of the lien. It would not be inconsistent with an express pledge ; and I do not perceive why it is at variance with the lien resulting from the rules of a Court of Equity ;" 3 Russ. 488. An appeal was lodged in the House of Lords against this decision, but it was afterwards withdrawn : Sugd. V. & P. 258, 11th edit. VOL. I 30 466 vendor's lien. Where an estate is conveyed, in consideration of an annuity, the vendor will have a lien upon the land for the annuity, although a bond or covenant is given to secure the payment of the annuity. See Tardiffe v. Scrughan, 1 Bro. C. C. 423, where Lord Camden's opinion seems to have been that the mere *eircumstance of an estate '- -' being given in consideration of an annuity, with a bond, would not prevent the lien attaching from time to time : Blackburn v. Grey- son, 1 Bro. C. C. 420. In Clarke v. Boyle, 3 Sim. 502, Sir L. Shadwell, V. C, is reported to have said, that it appeared to him that Lord Eldon, in Mackreth v. Symmons, had expressly overruled the decision of Lord Camden, in Tardiffe v. Scrughan. However, in Buckland v. Pocknell, 13 Sim. 412, his Honor, in allusion to what he was reported to have said in Clarke v. Boyle, observes : " I think that, if that were said in those ver}' terms, it was said too strongly ; because it cannot be said that my Lord Eldon did overrule Tardiffe v. Scrughan; altliough I think that it may be fairly inferred from the remarks that he made upon that case, in his judgment in Mackreth v. Symmons, that he was not satisfied with the decision in all its parts. He shows, as it strikes me, an inclination to criticise it, and to escape from it, if the circum- stances of the case before him would allow him to do so. But I do not wish it to be understood to be my opinion, that he overruled it point blank." In the case of Matthew v. Bowler, 6 Hare, 110, where there was a sale and assignment of a life interest in leaseholds in considera- tion of a weekly sum, to be paid to the vendor during her life, with a covenant by the purchaser, for himself, his heirs, executors, and admin- istrators, to make the weekly payment to the vendor, and to repair and insure the premises, and otherwise perform the covenants in the lease ; it was held by Sir James Wigram, Y. C, that the vendor was entitled to a lien on the life interest in the leaseholds, which was the subject of the assignment for the weekly payment. His Honor said, " That, if the case of Tardiffe v. Scrughan was not approved, it certainly was not overruled by Lord Eldon. The case had been much considered by Sir Edward Sugden ; and it was clear that his opinion was, that the lien in such a case ought to be sustained. He should be most reluc- tant to come to a different conclusion. He was of opinion, in this case, that the plaintiff was entitled to the lien claimed by her bill. The pur- pose of the covenants in the deed to uphold the property could scarcely be understood, unless the property was intended to constitute a se- curity." Upon examining carefully that branch of the principal case which relates to the lien claimed for the annuities, it will be found, notwith- standing the ambiguity of Lord Eldon's language, that it may be recon- ciled with Tardiffe v. Scrughan and Matthew v. Bowler ; for Lord Eldon did not, as a bare abstract point of law, decide that there is no lien where an estate is sold in consideration of an annuity secured by MACKKETH V. SYMMONS. 467 a bond or *coveBant ; but he considered that the special air- r^o-iA-] cumstances of the case showed that the vendor intended to rely upon the personal security, viz., the bond for 20,000Z., and that such was the conception also of the vendee. The principle, therefore, upon which that branch of Mackreth v. Symmons was decided, is cer- tainly correct ; but it lias been doubted by an eminent writer, whether the circumstances of the case were such as justified Lord Eldon in coming to the conclusion, that it was the intention of the vendor to rely upon the personal security, and thus discharge the lien for the annuities. See Sugd. V. & P. 869, 11th edit. In Clarke v. Boyle, 3 Sim. 499, the conveyance was made in consid- eration of the vendee entering into covenants therein contained for pay- ment of an annuity to the vendor, and 3,000/. to certain persons in the event of the vendee's marrying. Sir L. Shadwell, V. C, distinguishing the case from Tardiffe v. Scrughan, held, that there was no lien, on the ground that the deed plainly marked out, that the consideration on the one side, was the conveyance of the estate, and, on the other the entering into the covenants. " Why," he asked, " am I to declare, that, in respect of this annuity, and of the sum which is payable on a con- tingency, and which, therefore, never may be payable, there is to be a lien on the purchased estates ? Why should I go further than any of the cases that have been hitherto decided upon the subject of lien on purchased estates, and do that which appears to be contrary to the in- tention of the parties ? I consider that this case is decided by the authority of Wi7iter v. Lord Anson." It may be here remarked, that the Yice-Chancellor does not appear to have been aware that the de- cision of Sir J. Leach had been reversed by Lord I^yndhurst. How- ever, it is presumed that Clarke v. Boyle is still a binding authority, because there a case actually arose similair to that which Sir J. Leach assumed, though wrongly, to exist in Winter v. Lord Anson. In that case, the conveyance, though expressed to be made in pursuance of the agreement (which, however, was to take a bond, and not a covenant), did not otherwise refer to it, and was expressed to be made, not in con- sideration of the agreement, but in consideration of a sitm of money. In Clarke v. Boyle, the conveyance was in consideration of certain covenants being entered into by the purchaser ; the covenants, there- fore, plainly formed the consideration, and the lien was gone. Upon the same principle it has been held, that, where a receipt was given by the vendor for a bond, as the consideration for an estate, the ' lien was gone ; thus, in Parrott v. Sweetland, 3 My. & K. 655, a daugh- ter conveyed her ^remainder in fee in an estate to her father, _^^ ^-. who was tenant for life, subject to a mortgage, in consideration of his entering into a covenant to indemnify. her against the mortgage, and in consideration of 3000L advanced, or agreed to be advanced or secured to her, in contemplation of her intended marriage, upon the 468 vendor's lien. terms expressed in a bond hearing even date therewith. On the inden- ture of release was indorsed a receipt signed by the daughter, as fol- lows : — " Received on the day and year first written, of and from the within-named J. P., a bond for the sum of 3000Z., being the full con- sideration within expressed to he given by him,;'''' and the condition for making void the bond was, upon payment to his daughter and her intended husband of an annuity for their lives, and of 3000L in certain events. Sir J. Leach, M. R., decided against the lien, observing that it was plain that it was not a case of a security, but a substitution for the price which the vendor had agreed to accept, and that the lien for the purchase-money was consequently discharged. This decision was affirmed by the Lords Commissioners, Sir L. Shadwell and Mr. Justice Bosanquet. Sir L. Shadwell thought that, although the appeal had been argued as if it were a naked case of vendor and purchaser, it ap- peared to be a sort of family arrangement between a father, daughter, and her intended husband, utterly inconsistent with the notion of a payment of purchase-money ; and that it was obvious that the parties did not treat the consideration as a mere sum of 3000Z. ; that the receipt was for the bond, and not for the 3000L; and it appeared, therefore, that the parties were bargaining for a security, and not a stipulated sum, and consequently no lien arose, because the vendor had actually received the consideration. So, likewise, in Buckland v. Pocknell, 13 Sim. 406, where A. agreed to sell an estate to B. for the annuity of 200Z., to be paid to him for his life, and an annuity of 92Z., to be paid after his decease to his son, and B. was to pay off a mortgage to which the estate was subject. Accord- ingly B. executed a deed, by which he granted the annuities to A. and his son, and covenanted to pay them ; and by a convej'ance of even date, but executed after the annuity deed, after reciting the annuitj^ deed, A. and the mortgagee, in pursuance of the agreement, and in con- sideration of the premises and of the annuities having been so granted as thereinbefore recited, and of the payment of the mortgage-money, conveyed the estate to B. Upon the death of A., his son's annuity, which had been assigned to tjje plaintiff, became in arrear. Sir L. Shadwell, V. C, held that there was no lien for the annuity. " The ^question," observes his Honor, "is whether it does not appear, '- -'on the face of the deeds, that the party who contracted to sell the land has got that which he contracted to have. Adverting to the mode in which the conveyances are made, my opinion is, that it would be quite wrong, because it would be contrary to what appears to have been the agreement of the parties, to hold, that, after the deeds were executed, any lien remained for the annuities. As there was a separate instrument, which was executed first, which contained a distinct grant of the two annuities, and covenants for payment of them; and as the conveyance was made expressly in consideration of that deed; and as MACKRBTH V. SYMMONS. 469 it was part of the express stipulation that the laortgage-money should be paid off, and, consequently, that the mortgagee should convey his legal estate to the purchaser, it would be quite inconsistent with the mode in which the parties have dealt, to say that there is still an ulte- rior latent equity, for the purpose of securing the annuity in a manner in which neither partj"^ ever thought that it was to be secured ; and it is evident that they did not think that it was to be so secured, from their having taken a specific security for it. In the case of Parrott v. Sweet- land, which came before me and Mr. Justice Bosanquet, when we had the honour of being Commissioners of the Great Seal, we affirmed the judgment of Sir J. Leach, in a case where the course of the transac- tion showed that the party had got that for which he bargained." So, likewise, in Dixon v. Gay/ere, (17 Beav. 421 ; 21 Beav. 118), where the purchaser contracted to buy an estate from the vendor, and upon an assignment being made to grant to the vendor an annuity of £50 per annum, during three lives, '' to be secured by bond," Sir John Romilly, M. R., held, that the vendor had no lien on the estate for pay- nient of the annuity. " The case of Buckland v. Pocknell," said his Honor, " appeals to me to be very near the present, ... It appears to me the mode of carrying the contract in the present case into effect is this : — By a separate and independent instrument the vendor should convey the land, and, in consideration of that conveyance, the pur- chaser should secure the annuity by his bond This result does not appear to me to militate with the case of Winter v. Lord Anson (3 Russ. 488), nor do I dispute the authority of that case. In fact, both the cases of Clarke v. Boyle, (3 Sim. 499), and Buckland v. Pocknell, are distinguished from that ; and one of the grounds on which the Vice-Chancellor of England went, in Buckland v. Pocknell, was, that it would be quite inconsistent with the mode in which the parties had dealt, to say that there should be *a lien for the purchase- p^„,hT, money during the lives of the annuitants." The decree of his '- -^ Honor in this case was varied by Lord Cranworth, C, who, agreeing with his Honor that the vendor had no lien on the estate for payment of the annuity, held that he was entitled (the purchaser being dead, and there having been no conveyance) to have the annuity secured by a valid and effectual bond before he could be called upon to convey the estate. 1 De G. & Jo. 655. See also Dyke v. Bendall, 2 De Q. JVIac. & Gr. 209 ; Stuart v. Ferguson, Hayes, Ir. Exch. Rep. 452. Upon the same principle it has been held, that the vendor to a rail- way company in consideration of a rent-charge, has no lien for it if un- paid. See Uarl of Jersey v. Briton Ferry Floating Dock Co., 7 L. R. Eq. 409. There, by an agreement dated in 1851, a company under powers conferred by the Lands Clauses Act, in consideration of the pay- ment of a yearly rent-charge and royalties, agreed to purchase land for the construction of docks. It was agreed, by the 14th clause of the 470 vendor's lien. agreement, that " the above mentioned rents and royalties should be charged and secured by the conveyance, according to the provisions of the 11th section of the Lands Clauses Consolidation Act, 1845." The company entered and completed the construction of the docks, but had not made any payment in respect of the rent-charge. It was held by Sir W. M. James, V. C, upon the authority of Winter v. Lord Anson, 1 S. & S. 434, which he considered to be unaffected by Lord Lynd- hurst's decision, that the vendors were not entitled to a lien for the un- paid arrears of the rent-charge ; and, after referring to Lord Lynd- hurst's judgment (3 Russ. 488), his Honor observed, " Let us consider what the effect of these doctrines is, as applied to this case. A man conveys a piece of land for the construction of a public work, in con- sideration of an annual payment. It appears to me it would be quite con- trary to the intention of the parties to suppose the vendor was reserv- ing to himself a right, at some future time, to enter and destroy the public work, if the annual rent should fall into arrear. Hence, in my opinion, there is no lien in such a case for unpaid purchase-money. The question of receiver stands on a very different footing, but that question does not arise till the conveyance is settled." See further as to remedies of the owner of a rent-charge against a railway company, Eyton V. Denbigh, Ruthin, and Gorwen Railway Company, 6 L. R. Eq. 14. From the foregoing cases we may conclude, that, although the mere giving of a bond, bill of exchange, promissory note, or covenant, *for the purchase-money, or the granting of an annuity secured '- -' by a bond or a covenant, will not be sufficient to discharge the eqviitable lien, yet where it appears that the note, bond, covenant, or annuity was substituted for the consideration-money, and was, in fact, the thing bargained for, the lien will be lost. See In re Albert Life Assurance Company, 11 L. R. Eq. 1Y8. An actual agreement, though by parol, to accept a security, and rely upon it alone, will, it seems, discharge the vendor's lien for unpaid purchase-money. See 1 S. & S. 445, where Sir John Leach observes, " Tliat it is the vendor who in the first place attempts to raise an equity against the allegation of the deed ; and if the vendor be permitted to repel the effect of the deed, by showing that the price was not paid, it must necessarily follow, that the vendee must be at liberty to disclose the whole truth, and to explain the reason why that payment was not made." Although the lien of a vendor for unpaid purchase-money may be discharged by his accepting the solicitors employed in the sale as his debtors in the place of the purchaser, on the supposition that the pur- chase-money had been paid to them, this was held not to be the case where in fact no payment of the purchase-money was made by the ven- dor to the solicitors, but they were simply directed by the purchaser to MAOKRETH V. SYMMpNS. 471 pay the purchase-money out of monies due by them to the purchaser on an unsettled account. See Wrout v. Daives, 25 Beav. 369. If a vendor who knows the purchase-money is trust-money, suffers one of the trustees to retain part of it, without the knowledge of the co-trustees or the cestuis que trust, he has no lien on the estate for the part so retained: White v. Wakefield, T Sim. 401 ; and see Price v. Blakemore, 6 Beav. 507. Upon the same principle in Muir v. Jolly, 26 Beav. 143, a trustee having purchased an estate on behalf of the trust, the vendor executed a conveyance to the trustee, which recited the trust, and that the trustee had called in trust-monies sufficient to pay the purchase-money, and it contained a receipt for the whole purchase-money. In fact, only a part was paid, and the trustee gave his bond and a memorandum of deposit for the deficiency, the latter reciting that the vendor had lent the trustee that sum to enable him to complete. It was held by Sir John Romilly, M. E., that the vendor had no lien on the title-deeds in his possession for the unpaid purchase-money. Where there was a stipulation that the purchase-money should be paid within two years after a re-sale, it was held that the r9),o-\a-\ vendor's *lien was gone : Ex parte Parhes, 1 G. & J. 228. It has been held, that, if a vendor take a totally distinct and inde- pendent security for the unpaid purchase-money, it will then become a case of substitution for the lien, instead of a credit given. Thus, in Nairn v. Prowse, 6 Ves. 752, Sir William Grant, M. R., held, that a vendor's equitable lien upon an estate, for the purchase-money, was lost by his taking, as a special security, a Long Annuity of £100 a-year, by way of a pledge. " Suppose," said his Honor, " a mortgage was made upon another estate of the vendee, will equitj^, at the same time, give him what is in effect a mortgage upon the estate he sold ; the ob- vious intention of burthening one estate being, that the other shall remain free and unencumbered? Though in that case the vendee would be a creditor, if the mortgage proved deficient, yet he would not be a creditor by lien upon the estate he had conveyed away. The same rule must hold with regard to any other pledge for the purchase-money. In this case the vendor trusts to no personal security of the vendee, hut gets possession of a Long Annuity of £100 a-year, which, according to the rise or fall of stock, might or might not be sufficient for the purchase-money. He has, therefore, an absolute security in his hands, not the personal security of the vendee. Could the vendee have any motive for parting with his stock, but to have the absolute dominion over the land ? " The case put by Sir William Grant, that a mortgage of another estate will be a substitution for the lien, must, it seems, be qualified in the manner laid down by Lord Bldon in the principal case : as the question will be, whether, from the circumstances attending the mortgage, the 472 vendor's lien. intention of the vendor to give up the lien can be clearly and satisfac- torily implied. See Cowell v. Simpson, 16 Ves. 2T8 ; 2 Ball & B. 515. But, where a bond was given for the unpaid purchase-money, and a mortgage on part of the purchased estate, the intention, that the lien should not extend over the rest of the estate, was held to be sufficiently clear: Capper v. SpoUiswoode, Taml. 21. So, likewise, in Bond v. Kent, 2 Yern. 281, where the vendor took a mortgage of the estate for part of the purchase-money, and a note for the remainder, it was held that he had no lien for the money due on the note ; " because," as ob- served by Lord Redesdale, in commenting on that ease, " it was mani- festly the intention of the parties that the amount of the note should not be a lien on the lands, else they would have had a mortgage for the whole ; the seller took the estate for his debtor for part of the pur- chase-monej^, and was content with the note for the remaining part." *See Hughes v. Kearney, 1 S. & L. 135 ; JEyre v. Sadleir, 14 [ 320J j^ ^^ j^gp_ ^^g^ ^g jj^ ^ In Good V. Pollard, 9 Price, 544 ; 10 Price, 109, the purchaser, with the concurrence of the vendor, mortgaged the estate for a sum which the vendor received in part payment of the purchase-money, taking bills, which were ultimately dishonoured, for the remainder: it was held, that the vendor had no lien on the purchase-money arising from a second sale, in preference to the mortgagee. Where the vendor, without receiving the purchase-money, executes a conveyance for the purpose of enabling the purchaser to execute a mort- gage, he will lose his lien on the estate as against mortgagee : Smith v. Evans, 28 Beav. 59. There will be no lien upon land in favour of a legatee, who has con- veyed it away pursuant to the directions of a will, as a condition pre- cedent to the receipt of the legacy, and which the executor (who had lost the assets of his testator) did not pay. See Barker v. Barker, 10 L. R. Eq. 438. There a testator gave a legacy to each of his daughters on condition that she should convey her share of certain real estate, to which the daughters were entitled, to the sons of the testator ; and in case of any daughter refusing or 'being unable to comply with the con- dition, the legacy bequeathed to her was to be forfeited, and to form part of the testator's residuary personal estate. The testator gave his residuary personal estate to his sons ; and he appointed one of them, and two other persons, executors. The daughters conveyed their shares of the real estate to their brothers, but did not obtain payment of the legacies. It was held by Lord Romilly, M. R., that they were not entitled to any lien, in the nature of a vendor's lien, on the real estate conveyed by them for their legacies. " Unquestionably," said his Lordship, " they had an election in the first instance ; they might l\.ave given up their legacies and retained the property, but till they conveyed it there was no riglit to the legacies. They did not then con- MACKRETH V. SYMMONS. 473 vey, making any terms as to the payment of the legacies, but they per- formed the condition absolutely. They might unquestionably liave ^one this — have bargained with their brothers that the legacies should remain a charge upon the shares until the legacies were paid ; but there was no contract of that description : and the question, which is a some- what novel one I think, and which was fully argued before me, is this : whether, on the construction of the will, this express condition that each daughter shall, at the request and costs of the sous, convey her estate, does create a charge upon the property *conve3red. I think this is a mere personal obligation, and that it does not '- -^ create a charge." Marshalling for Lien. In the principal case. Lord Eldon expressed some doubt, although it was not necessary to decide the point, whether, on the death of the vendee, without having paid his purchase-money, a Court of Equity would marshal his assets in favor of third parties^ by allowing them, in case the vendor, having a lien on the real estate, should exhaust the personalty, to stand in his place on the real estate to the extent of his lien. In Gojipin v. Goppin, Sel. Ch. Ca. 28, Lord King held that the ordinary rule of marshalling would not apply to such a case ; and in Pollexfen v. Moore, 3 Atk. 2*73, Lord Hardwicke said, " That this equity (i. e. the lien' for unpaid purchase-money) will not extend to a third person, but is confined to the vendor and vendee." It has, however, been repeatedly decided, overruling Goppin v. Goppin, and the dictum in Pollexfen v. Moore, that the lien of a vendor must he subjected to the ordinary rule of marshalling assets, and that, con- sequently, when the purchased estate descends, the estate and personal assets will, as against the heir, be marshalled in favour of simple con- tract creditors and legatees {Trimmer v. Bayne, 9 Ves. 209 ; Sproule V. Prior, 8 Sim. 189) ; and where the purchased estate is devised, as against the devisees, in favour of simple contract creditors (Selby v. Selby, 4 Russ. 336 ; JEmuss v. Smith, 2 De G. & Sm. 122), but not in favour of legatees ( Wythe v. Henniker, 2 My. & K. 635 ; but see Birds V. Askey, 24 Beav. 618, 621 ; Lord Lilford v. Powys-Keck, 1 L. R. Eq. 34'r ; but now, freehold and copyhold estates are, under the statute 3 & 4 Will. 4, 0. 104, assets for the payment of debts by simple con- tract, in all cases coming within the operation of the statute, the doc^ trine of raarshalling is inapplicable and such debts will be satisfied when necessary out of those estates. The doctrine of marshalling will form the subject of another note, and is only mentioned here on account of the doubt thrown out by Lord Eldon in the principal case, as to its being extended to the vendor's Jien for unpaid purchase-money. The vendor's lien is assignable even by parol {Dryden v Frost, 3 My. & Cr. 640) ; but the assignee will take it subject to any prior incum- 474 VENDOR'S LIEN. brances created by the vendor : Lacey v. Ingle, 2 Ph. 413 ; Mangles v. Dixon, 1 Mac. & G. 43T, 3 Ho. Lo. Ca. 102. Vendee^s Lien for prematurely paid Purchase-Money.] — If the pur- chase-money, or part of it, has been paid prematurely, before a convey- r*o29l ance, the vendee will have a lien upon the estate in the hands *of the vendor, even it seems although he may have taken a security for his money. This doctrine has been laid down in various cases, and it has been the subject of great consideration in the leading case of Wythes v. Lee, 3 Drew. 396 : there the defendant, a mortgagee, who held the mortgage, as to the greater part, in trust for several persons ; ' as to a part, as mortgagee for himself, selling under a power of sale, contracted to sell the mortgaged estate for 380,000L, and the plaintiff paid 38,000Z., part of the purchase-money, by way of deposit. A bill having been filed by the purchaser, claiming a lien on the estate for his deposit, a demurrer to the bill was overruled by Sir R. T. Kindersley. Y. C. " The point," said his Honor, " most discussed, and the most important, is this abstract question. Suppose a person, absolute bene- ficial owner in fee of an estate, contracts to sell it, and the purchaser pajrs a deposit in part payment of the purchase-money, and by reason of the vendor being unable to make a title, or from any other reason, not being misconduct on either side, the contract goes off, and cannot be completed ; has the purchaser a lien on the estate for his deposit? That is the most important question. If there is a right of lien, as that is a right in equity, it follows that it must be capable of being enforced by bill. " Now, that question I have looked at in three different points of view : — 1. With reference to natural justice, irrespectively of any specific rule of law ; and it does appear to me that it is consistent with natural jus- tice, that if a purchaser, on the faith of the contract being completed, and the estate becoming his, has advanced money in payment, or part payment, for the purchase, he has advanced it under circumstances which entitle him to say, ' If you cannot complete, not only are you bound to give me back my money, but I have a right to a lien on the estate.' 2. With reference to the general law of this Court, I do not mean with reference to decided cases, but to the general law and prin- ciples of this Court. This is clear, that the vendor, if he has parted with the estate to the purchaser before he has got his money, has a lien for it on the estate ; that is unquestionable. Now, does the right of the purchaser, if the contract goes off, stand in principle on the same footing as that of the vendor ? The only distinction that occurs to me is this : — the vendor, when he contracts to sell his estate, is owner ; he has the estate in his ow^n possession, at least under his own control ; and when he contracts to sell, his right is to say, ' I will convey the estate when the purchase-money is paid, but till that is done, I will MACKRETH V. SYMMONS. 475 not convey it.' That right creates a lien of itself, *very analo- r^ogo-i gous to the common law lien ; and that lien, which exists before conveyance, still continues ; it is not a new, but the same lien. But with regard to the purchaser, he has not the estate in his possession, and his lien is not in its origin the same sort of lien as that of the vendor. But when a contract is made and then goes off, it appears to me, that, in principle and justice, the equity of the purchaser to a lien on the estate ought to stand on as good a footing as the lien of the ven- dor after conveyance. A difficulty has been suggested, that with regard to a vendor, by taking an additional security for the purchase- money, as a general rule, he loses his right to his lien, and a purchaser does not. The grouud of the distinction I am at a loss to understand, But, however that may be, it appears to me that, on principles of equity and justice, the purchaser, when the contract goes off, has a lien." His Honor then examining this subject in a third point of view, viz., as to the authorities, after noticing the dictum in Burgess v. Wheats, referred to in the principal case {ante, p. 301) ; and the opinion of Lord St. Leonards, in his work on Vendors and Purchasers (see vol. ii. p. 85T, 11th ed.), and observing, that "there is no single case in which any such claim has been made by a purchaser," added : " But I do not see any inconvenience in establishing the rule ; I do not see any hardship in it. It is true, that in some cases the Court has refused to order the deposit to be returned ; but those have all been cases in which the bill was for other purposes, and the return of the deposit was collateral. I do not see what mischief could result from entertaining a bill for the single purpose of establishing the right to a lien for the deposit ; and, if it were necessary for me now to determine the question of the right to a lien, I should feel great difficulty in getting over the authorities on the subject, the dictum in Burgess v. Wheate, the observations of Lord Eldon in Mackreth v. Symmons, and the opinion of Lord St. Leonards, especially as I think natural justice is strongly in favour of the doctrine." But his Honor did not decide whether, in the peculiar circumstances of the case, the vendee would have a lien for the pur- chase-money as against the mortgagor or the persons for whom the mortgagee was trustee. The vendee will have a lien for prematurely paid purchase-money not only as against the vendor, but as against a subsequent mortgagee who had notice of the payments having been made : ( Watson v. Bose, 10 W. R. (V.-C. K.), 755, S. C. nom. Eose v. Watson, 10 H. L. Ca. 612,) even although some of the payments are in pursuance of the contract made after the mortgage, at any rate if the mortgagee gives no notice r*324-| of any *intention to interfere with the contract. — lb. It seems, however, that where a purchaser prematurely pays part of the purchase-money to a mortgagee selling under a power of sale, he would have a lien upon the interest of the mortgagee. " There is," said 476 VENDOR'S LIEN. Eindersley, V. C, " certainlj' a ground of equity for that ; for though that which was the subject of sale was a fee-simple, there is justice in saying, if the vendor is entitled to some lesser interest, to the extent of that interest, the purchaser is entitled to the lien." See Wythes v. Lee, 3 Drew, 406 ; Burgess \. Wheate, 1 Eden, 211; Lacon v. Martins, 3 Atk. 1 ; Oxenham v. Esdaile, 2 Y. & J. 493 ; 3 Y. & J. 262. In the event of a sale by the first purchaser of an estate having a lien upon it for pi-ematurely paid purchase-money, the second purchaser who has also paid his purchase-money or part of it prematurely will, in case the first purchase is rescinded, have a lien upon the sum in respect of which the first purchaser had a lien upon the estate. See Aberaman Iron Works v. Wickens, 4 L. R. Ch. App. 101. There Bailey, the owner of on estate, agreed to sell it to Wickens for 250,000?., represent- ing it to contain 1530 acres. Wickens paid Bailey 50,000Z., part of the purchase-money. Wickens agreed to sell the Aberaman estate to the Aberamen Iron Works Company for 350,000Z., of which 150,000Z. was paid to him, Y5,000Z. in cash, and bonds for 15,000?. Wickens having brought an action against Bailey (in consequence of the estate contain- ing 430 acres less than it was represented to contain), the action was compromised by Baily repaying the 50,000?., 25,000?. in cash and 25,000?. in bills of 5000?. each, and by the agreement being abandoned. The company then filed a bill against Wickens for a return of the 75,000?. and the bonds. Wickens received the proceeds of four of the bills of exchange for 5000?. ; but the fifth bill for 5000?. remaining un- paid, the proceeds were brought into Court in the suit. It was held by Lord Cairns, L. C, reversing the decision of Sir R. Malins, V. C. (re- ported 5 L. R. Eq. 485), that the company were entitled to repayment of what they had paid, and to a return of the bonds, and that they had a lien on that portion of the 50,000?. repaid to the purchaser which had been paid into court. " Adverting," ^aid his lordship, " to the demand which is made on the part of the plaintiffs for a lien in respect of the purchase-money which has been paid, that question stands thus: — 50,000?. was paid by Wickens to Bailey on account of the purchase of the estate. According to the decisions which were referred to — ^the case of Wythes v. Lee (3 Drew. 396) and the case of Base v. Watson (10 r*325n "^°' ^°' ^' ^*^^^i Wickens, *in the event of the purchase going off, would have a lien for this 50,000?. upon the Aberaman es- tate belonging to Bailey. In like manner the company, in their turn, for the purchase-money which they paid Wickens, would, in the event of their contract going off, have lien upon any interest which Wickens might possess in the Aberaman estate ; and, according to the decisions to which I have referred, Wickens to the extent of the 50,000?. he paid, had become the owner, by way of incumbrance, of a corresponding amount in value on the Aberaman estate. It appears to me, therefore, upon the authority of those decisions, to be clear that the company, MACKKETH V- STMMONS. 477 supposing the 50,000Z. had not been repaid by Bailey to Wickens, would kave been entitled to maintain a bill against "Wickens and Bailey to prevent the money getting back into the hands of Wickens. In point of fact, when the bill was filed, the 50,000L had, in part, been repaid to Wickens ; but part of the amount remained in specie in the form of a hill of exchange of Bailey's, which had not been paid. This bill of ex- change was intercepted by the injunction of the Court ; and, in respect of it, I find 6,232L is now in court. Upon that sum it appears to me the plaintifis in this suit have established their right to a lien. The decree of the Vice Chancellor, therefore, must, in my opinion, be reversed ; and a decree must be made directing an account of the purchase-money paid by the company to Wickens, and rejDayment of it with interest at il. per cent, from the time of payment. A time must be fixed for that repayment. The bonds remaining in the possession of Wickens must be delivered up ; and he must be ordered to concur in the delivery up of some which are with the London and County Bank." Where it turns out that another person is, under the contract of sale, entitled to the estate, the jierson taking the conveyance to himself, or his assignees, will have a lien for the purchase-money that he has paid : Neeson v. Glarkson, 4 Hare, 9*1. But the lien will not exist where the purchaser has by his own default abandoned the contract {Dinn v. Grant, 5 De G. & Sm. 451), nor where the contract is by statute illegal (1 Ewing v. Osbaldiston, 2 My. & Cr. 88). Secus, if the purchaser repudiates the contract where the vendor cannot make a good title, or where the sale constitutes a breach of trust (Wythes v. Lee, 3 Drew. 396). Where, in a suit by a vendor for specific performance, a good title is not deduced, the Court will order a return of deposit-money with inter- est at 4L per cent., declaring also that the purchaser has a lien on the estate for the same, and also for the costs of the suit ; Turner v. *Marriott, 8 L. R. Eq. 744 ; Middleton v. Magnay, 2 H. & M. p^.,n„-, 233 ; " and it will make the same order where a contract has '- -■ been rescinded on the ground of fraud, surprise, misrepresentation, or anything of the kind; Torrance v. Bolton, 14 L. R. Eq. 124, 135." Upon the same principle, a person who pursuant to an agreement expends money upon propertj^ agreed to be leased to him, and which the proposed lessor agrees to x'epay on his failure to grant a lease, will have a lien on the interest of the proposed lessor in the property, upon his being unable to grant a lease for want of title : Middleton v. 3Iag- nay, 2 Hem. & Mill. 233. Estate in the hayids of Third Parties when Bound by Lien.] — The equitable lien for unpaid purchase-money will, as is laid down in Mack- reth V. Symmons, bind the estate not only in the hands of the pur- chaser and his heirs, and persons taking from them as volunteers, but also in the hands of purchasers for valuable consideration, who bought 478 vendor's lien. with notice that the purchase-money remained unpaid (Searle v. Bote- lers, Gary's Ch. Rep. 35 ; Walker v. Freswick, 2 Ves. 622 ; Hughes v. Kearney, 1 S. & L. 135 ; Winter v. Lord Anson, 3 Russ. 488 ; S. C, 1 S. & S. 434 ; Frail v. Fllis, 16 Beav. 350, 354) ; but the lien will not prevail against a bona fide purchaser who bought without notice that the purchase-money remained unpaid {Gator v. Earl of Fembroke, 1 Bro. C. C. 302) ; and, although the title is deduced from the first ven- dor, in recital, still that will not be sufficient to affect the purchaser with notice, if the recital does not show that the estate was not paid for : Gator V. Earl of Pembroke, 1 Bro. 0. C. 302 ; Eyre v. Sadleir, 14 Ir. Ch. Rep. 119; 15 lb. 1. See, however, Davies v. Thomas, 2 Y. & C, Exch. Ca. 234 ; in which case a reference, in the conveyance of the second purchasers to the will under which the sale was made, was held to be sufficient notice of a lien not appearing upon the face of the will, upon the ground that notice of the will ought to have put the pur- chasers upon inquiries which would have led to the discovery of the lien. The authority of this case, as to what is deemed sufficient notice, seems doubtful. See Sugd. V. & P. 819, 11th ed. The fact of the vendor remaining in possession of the estate as les- see, where he has acknowledged the receipt of the purchase-money in the body of the deed and by indorsement, will not be notice of the purchase-money remaining unpaid, so as to cause the lien to attach : White V. Wakefield, 1 Sim. 401. But where the vendor claiming a lien retains the conveyance and the title-deeds, a subsequent purchaser or mortgagee may be affected with notice of the lien ; Worthington v. Morgan, 16 Sim. 54*7 ; Feto v. Ham- mond, 30 Beav. 495 ; and see Hewitt v. Loosemore, 9 Hare, 449 ; Finch V. Shaw, 18 Jur. 93T. *If the legal estate is outstanding, then, as the second pur- '- chaser has only an equitable interest, subsequent to that of the equitable lien, the maxim, " Qui prior est tempore potior est jure,'' may, as in the principal case, apply ; and the equitable lien will have prece- dence. Where, however, the equity of a second purchaser or mortgagee hav- ing only an equitable interest is better than that of the vendor claiming a lien for unpaid purchase-money, such purchaser or mortgagee will be entitled to priority over the lien. This subject has been much discussed in the important and leading case of Bice v. Bice, 2 Drew. t3. There certain leasehold property was assigned to a purchaser, by a deed which recited the payment of the whole purchase-money, and had the usual receipt indorsed on it, and the title- deeds were delivered up to the purchaser. Some of the vendors received no part of their share of the purchase-monej', having allowed the pay- ment to stand over for a few days, on the promise of the purchaser then to pay. The day after the execution of the deed, the purchaser depos- MACKRETH V. SYMMONS. 479 ited the assignment and title-deeds with the defendants, with the memo- randum of deposit to secure an advance, and then absconding, without paying either the vendors or the equitable mortgagees. It was held by Sir R. T. Kinderslejr, V. C, that the defendants, the equitable mortga- gees, having the better equity, were entitled to payment out of the estate in priority to the claim of the vendors for their lien. " In a con- test," said his Honor, " between persons having only equitable interests, priority of time is the ground of preference last resorted to ; i. e., a Court of equity will not prefer the one to the other, on the mere ground of priority of time, until it finds, upon an examination of their relative merits, that there is no other sufficient ground of preference between them ; or, in other words, that their equities are in all other respects equal ; and that if one has, on other grounds, a better equity than the other, priority of time is immaterial So far as relates to the na- ture and quality of the two equitable interests, abstractedlj' considered, they seem to me to stand on an equal footing ; and this I conceive to have been the ground of Lord Eldon's decision in Mackreth v. Sym- mons, where, in a contest between the vendor's lien for unpaid purchase- money, and the right of a person who had subsequently obtained from the purchasers a mere contract for a mortgage, and nothing more, he decided in favour of the former, as being prior in point of time If, then, the vendor's lien for unpaid purchase-money, and the right of an equitable mortgagee by mere contract for a *mortgage, are i-Aqng-i equitable interests of equal worth in respect of their abstract ^ nature and quality, is there anything in the special circumstances of the present case to give to the one a better equity than the other ? One special circumstance that occurs is this, that the equitable mortgagee has the possession of the title-deeds.'' And his Honor, after re- ferring to Foster v. Blackstone (1 My. & K. SOT) ; Stanhope v. Verney (Butler's Co. Litt. 290, b, note (1), sect. 15 ; 2 Eden, 81) ; 3 Sudg. & V. P. 218; and Maundrell v. Maundrell (10 Ves. 2n), adds: "We have here ample authority for the proposition, or rule of equity, that as be- tween two persons, whose equitable interests are precisely of the same nature and quality, and in that respect precisely equal, the jpossession of the deeds gives the better equity. And applying this rule to the present case, it appears to me that the equitable interests of the two parties being, in their nature and quality, of equal worth, the defendant, having possession of the deeds, has the better equity ; and that there is, therefore, in this case, no room for the application of the maxim, ' Qui prior est tempore potior est jure,' which is only applicable where the equities of the two parties are, in all other respects, equal. I feel all the more confidence in arriving at this conclusion, inasmuch as it is in ac- cordance with the opinion expressed by Lord St. Leonards in his work on Vendors and Purchasers. And I have no doubt that, in Mackreth v. Symmons, if the equitable mortgagee had, in addition to his contract 480 vendor's lien. for a mortgage, obtained the title-deeds from Ms mortgagor, Lord Eldon would have decided in his favour." And his Honor, after guarding against the supposition that he meant to express an opinion that the possession of the title-deeds would, in all cases, and under all circum- stances, give the better equity, and after referring to Allen v. Knight (5 Hare, 272, 11 Jur. 52T), says : " It appears to me that in all cases of contest between persons having equitable interests, the conduct of the parties, and all the circumstances, must be taken into consideration, in order to determine which has the better equity. And if we take that course in the present case, everything seems in favour of the defendant, the equitable mortgagee. The vendors, when they sold the estate, chose to leave part of the purchase-money unpaid, and yet executed and de- livered to the purchaser a conveyance, by which they declared, in the most solemn and deliberate manner, both in the body, and by a receipt indorsed, that the whole purchase-money had been duly paid. They might still have required that the title-deeds should remain in their cus- tody, with a memorandum, by way of equitable mortgage, as a security r=Kq9Q-i fo^ the unpaid purchase-money; *and if they had done so, they would have been secure against any subsequent equitable incum- brance ; but that they did not choose to do, and the deeds were delivered to the purchaser. Thus they voluntarily armed the purchaser with the means of dealing with the' estate as the absolute, legal, and equitable owner, free from every shadow of incumbrance or adverse equity. In truth, it cannot be said that the purchaser, in mortgaging the estate by the deposit of the deeds, has done the vendors any wrong, for he has only done that which the vendors authorised and enabled him to do. The defendant, who afterwards took a mortgage, was in effect invited and encouraged by the vendors to rely on the purchaser's title. They had in effect, by their acts, assured the mortgagee that, as far as they (the vendors) were concerned, the mortgagor had an absolute indefeasi- ble title both at law and in equity.'' See also, Wilson v. Keating, i Be G. & Jo. 588. A person taking a conveyance with notice of a purchaser's lien for upaid purchase-money, would, it seems, take subject to it. Thus, if a man sell an estate to B., and receive part of the purchase-money, and then re^Dudiate the contract and sell the estate to C, who has notice of the first contract and the payment of part of the purchase-money by B., B. will, in that case, have a lien on the estate in the hands of C. for the money paid to the original owner (see 29 Beav. 254) ; but semble that if the property the subject of the contract were situated abroad, no decree enforcing the lien would be made, at any rate in the absence of any special circumstances : Morris v. Chambers, 29 Beav. 246 ; see also, Watson V. Sose, 10 W. K. (Y. C. K.) 745 ; 10 H. L. Ca. 672. The assignees of a bankrupt will be affected by the equitable lien, although they may have had no notice of it ; for it is a clear principle MACKRETH V. SYMMONS. 481 that assignees in bankruptcy take subject to all the equities attaching to the bankrupt : Bowles v. Sogers, 6 Yes. 95, cited in note (a) ; JEa; parte Hanson, 12 Ves. 349; Mitford y. Mitford, 9 Ves. 99; Orant v. Mills, 2 V. & B. 306 ; Ex parte Peake, 1 Madd. 846. So, also, will the assignees under a general assignment for the benefit of creditors : Fawell V. Heelis, Amb. 124 ; and see 1 Bro. C. 0. 302. Where a vendor takes a security for his purchase-money, as, for in- stance, a bond, he will not be permitted to sue at law and in equity at the same time, but must elect in which court he will proceed : Barker V. Smark, 3 Beav. 64. ' A vendor's lien for unpaid purchase-money not being an express trust, his right to recover it may be barred by the 40th section of the Statute of Limitations, 3 & 4 *Will. 4, c. 21 (Toft v. Stephenson, "7 |-^ -, Hare, 1) ; but a case may be taken out of the operation of the ^ -' statute by a sufficient acknowledgment (S. C, 1 De G. Mac. & G. 28 ; 5 De G. Mac. & G. 735) ; and thereupon, payment of the purchase- money remaining unpaid, and arrears of interest, may be enforced in equity: lb. The vendor's lien for unpaid purchase-money has been held not to be a "charge by way of mortgage," within the meaning of 17 & 18 Vict, c. 113 ; hence the personal estate of the deceased purchaser under that act remained primarily liable for its payment : Hood v. Hood, 5 W. R. (N. S.) 147 ; 3 Jur. N. S. 684, and Barnewell v. Iremonger, 1 Drew. & Sm. 255, 9 W. R. (V. C. K.) 88, but now, by 30 & 31 Vict. c. 69, the word " mortgage," in the construction of these statutes, has been ex- tended to any lien for unpaid purchase-money upon any lands or heredi- taments purchased by a testator. As the enlarged meaning of the word " mortgage " is only given in the case of lands purchased by a testator, when lands have been pur- chased by an intestate, his personal estate will remain primarily liable to discharge the lien for unpaid purchase-money. Harding v. Hard- ing, 13 L. R. Eq. 493; Hudson v. Cook, 26 L. T. Rep. (N. S.) 181, overruling Evans v. Poole, 49 L. T. (N. S.) 50. The English chancery doctrine nois, Indiana, Ohio, Kentucky, of the vendor's equitable lien for Vermont, and Texas ; Delassus v. unpaid purchase-money, upon an Boston, 19 Missouri, 425 ; Herbert absolute conveyance of land, is v. Scofield, 1 Stockton's Ch. 492 ; adopted in several of the States Pincham v. Collard, 13 Texas, of this country, viz., New York, 333 ; Salmon v. Hoffman, 2 Call- Maryland, New Jersey, California, fornia, 138; Burt v. Wilson, Virginia, Tennessee, Mississippi, 28 Id. 682 ; M' Gandlish v. Keen, Georgia, Alabama, Missouri, Illi- 13 Grattan, 615 ; Garr v. Hobbs, VOL I. — 31 482 VENDORS LIEN. 11 Maryland, 285; Dodge v. Ev- ans, 43 Mississippi, 5*10 ; and has been recognized in the Circuit and Supreme Courts of the United States ; Oilman v. Brown et al., 1 Mason, 192, 212; S. C, 4 Whea- ton, 256 ; Bailey v. Greenleaf, t Id. 46 ; English v. Russell, 1 Hemp- stead, 35 ; Chilton v. Branden, 2 Black, 458. In Richardson v. Bow- man, 40 Mississippi, 782, it was held that the vendor of a leasehold had a lien for the unpaid purchase- money, and the same point has been decided in Marjdand. In the recent case of Manly et al. v. Slason et al., 21 Vermont, 2*11, the doc- trine was, after full consideration, approved and adopted : see also Weed V. Beehe et al.. Id. 496, 501 ; Pinney v. Fellows, 15 Vermont, 525 ; while in Burns v. Taylor, 23 Alabama, 255, it was said to apply with as much force to an exchange, as to a sale for money. Insomeother States, it has been condemned and abandoned. In Pennsylvania, the whole principle has been rejected; a vendor, after an absolute convey- ance of the legal title, has no im- plied lien for the purchase-money ; Kauffelt V. Bower, 1 Sergeant & Rawle, 64 ; Semple v. Burd, Id. 286 ; Mergargel v. Saul, 3 Whar- ton, 19; Hepburn v. Snyder, 3 Barr, "72, "IS : though there may be a conditional conveyance of the title, that will give the claim for purchase-money a priority over all claiming through the vendee ; Bear V. Whisler, 7 Watts, 144 ; see Cook V. Trimble, 9 Id. 15 ; Zentmyer v. Mittower, 5 Barr, 403, 408. In North Carolina, after some fluc- tuation of opinion, {Wynne v. Alston, 1 Devereux's Equity, 163; , Johnson v. Cawthorn, 1 Devereux & Battle's Equity, 32 ; Crawley \. Timberlahe, 1 Iredell's Equity, 346, 348 ;) the doctrine of an im- plied lien after an absolute convey- ance is now entirely expelled ; Womble v. Battle, 3 Iredell's Equity, 182, (a. d. 1844.) In South Carolina, also, it appears to be completely rejected ; Wragg's Representatives v. Comp. Gen. and others, 2 Dessaussure, 509, 520. In Massachusetts, Maine and Kan- sas, it has no existence : per Story, J., in Oilman v. Brown et al., 1 Mason, 192, 219 ; Philhrook v. Delano, 29 Maine, 410, 415; Simpson v. Kundee, 3 Kansas, 1'72 ; Brown v. Simpson, 4 Id. 16. In New Hampshire, Connec- ticut and Delaware, its existence remains undecided and doubtful ; Atwoody. Vincent,!'! Connecticut, 5'I6, 583 ; Budd et al. v. Busti and Vanderkemp, 1 Harrington, 69, T4 ; Avlin v. Broivn, 44 New Hampshire, 10. In some of the courts, in which its existence has been recognized, it has been con- sidered as a dangerous principle, and one opposed to the prevailing policy of this country which dis- courages secret liens, and tends to make all matters of title the sub- ject of record evidence. See the remarks of Marshall, C. J., in Bayley v. Oreenleaf, 7 Wheaton, 46, 51 ; of Carr, J., in Moore et al. V. Eolcombe et al., 3 Leigh, 597,600, 601 ; of Tucker, P., in Brawleyy.^ Catron, &c., 8 Id. 522, 527 ; and of Treat, J., in Gonover v. War- MACKRETH V. SYMMONS. 483 ren et al., 1 Gilmaii, 498, 502 ; M^GandUah v. Keen, 13 Grattan, 615, 621. The doctrine, in its general statement, is, that the vendor of land, if he has taken no security, although he has made an absolute conveyance by deed, with a formal acknowledgment in the deed or on the back of it, that the considera- tion has been paid, yet retains an equitable lien for the purchase- money, unless there be an express or implied waiver and discharge of it ; and this lien will be enforced in equity against the vendee, vol- unteers, and all others claiming under him with notice ; that is, against all persons except bona fide purchasers without notice; Stafford V. Van JRensselaer, 9 Cowen, 316, 318 ; Tompkins v. Mitchell, 2 Rand. 428, 429 ; Cox V. Fenwick, 8 Bibb, 183, 184; Bedford v. Smith, 6 Bush, 129 ; Thornton, &c. v. Knox's jEx'r, 6 B. Monroe, 74, 75 ; Williams v. Roberts et al., 5 Ohio, 35, 39 ; Boss V. Whitson, 6 Yerger, 50 ; Deibler V. Barwick, 4 Blackford, 339, 340 ; Byer v. Martin et al., 4 Scammou, 148, 151 ; EalVs Kx'rs v. Click et al., 5 Alabama, 363, 364; Stewart et al. v. Ives et al., 1 Smedes & Marshall, 197, 206; Upshaw et ux. v. Hargrove, 6 Id. 286, 291 ; Walton v. Hargraves, 42 Mississippi, 18 ; Fonda v. Jones, lb. 192 ; Marsh v. Turner and Lisle, 4 Missouri, 253 ; Man- ley et al. V. Slason et al., 21 "Ver- mont, 211 ; Briscoe v. Bronaugh, 1 Texas, 326, 330; Pintard v. Goodloe, 1 Hempstead, 502 ; Tier- nan V. Thurman, 14 B. Monroe, 211. It applies a fortiori where the purchaser is a feme covert, be- cause the vendor might otherwise be without remedy; Chilton v. Branden, 2 Black. 45 ; Armstrong V. Boss, 5 C. E. Greene, 101 ; and taking an invalid mortgage from her as a security, does not waive the vendor's lien ; Armstrong v. Boss. In like manner a judgment con- fessed by a married woman for the purchase-money of land binds the land itself in Pennsylvania, although invalid for every other purpose. This lien is recognized, to the same extent, in case of a sale of an equitable title as of a legal one ; Stewart v. Eutton, 3 J. J. Marshall. 118 ; Ligon v. Alexan- der, &c., 1 Id. 288, 289 ; Galloioay V. Hamilton's Heirs, &c., 1 Dana, 516 ; Iglehart v. Armiger, 1 Bland, 519, 526, 521 ; though the point was left undecided in the Court of Appeals in Maryland ; Schnebly & Lewis V. Bagan, 1 Gill & John- son, 120, 124 ; and some diiference of opinion existed upon it in the Supreme Court of the United States, in Bayley v. Greenleaf, 1 Wheaton, 46, 50. The principle is, that this lien exists in equity, presumptively, when the purchase- money, or any part of it, remains unpaid ; and it is for the vendee to show such circumstances as re- pel the presumption or rebut the equity ; Garson v. Green, 1 John- son's Chancery, 308, 309 ; Gilman V. Brown et al., 1 Mason, 192, 213 ; Schnebly and Lewis v. Bagan, 1 Gill & Johnson, 120, 125 ; Tonip- kms V. Mitchell, 2 Randolph, 428, 429; Allen el al. v. Bennett, 8 Smedes & Marshall, 612, 681; 484 VENDORS LIEN. Campbell v. Baldwin et als., 2 Humphreys, 248, 258 ; Marshall V. Christinas et als., 3 Id. 616, Git ; Tinshody v. Jacobson, 2 California, 269. An acknowledg- ment, in the body of the deed, or on the back of it, of the receipt of the whole purchase-money, if the money has in fact not been paid, will not be a waiver or dis- charge of this lien ; Oilman v. Brown et al., 1 Mason, 192, 214 ; Bedford Y. Gibson, 12 Leigh, 332, 344 ; Eubank v. Boston, &c., 5 Monroe, 285, 28Y ; Tribble, So. v. Oldham, 5 J. J. Marshall, 131, 144 ; Sheratz v. Nicodemus, T Yerger, 9 ; Sestt v. Bobison, 21 Arkansas, 202 ; nor will a recital in the deed that the consideration is " paid or secured to be paid ;" Thornton, &c. v. Knox's Ex'r, 6 B. Monroe, 14, 76 ; nor will the circumstance that the monej' is not to be payable till after the death of a particular person, and then only contingently, as where a part of the consideration is re- tained as an indemnity against a possible claim of dower ; Bedford V. Gibson, 12 Leigh, 332, 34T ; but this lien will not be given bj' a court of equity as a security for unliquidated and uncertain dama- ges ; Bayne v. Avery, 21 Michi- gan, 524 ; and will therefore not exist when the consideration of the sale is an engagement to support the vendor during his life ; Braivley v. Catron, &c., 8 Leigh, 522, 558; AulinY. Brown, 44 New Hampshire. In regard to the effect upon this equitable lien of the vendor's taking a security, the American cases agree in establishing and ap- plying the following simple and satisfactory rule : — that the im- plied lien will be sustained where- ever the vendor has taken the personal security of the vendee only, by whatever kind of instru- ment it be manifested, and there- fore that any bond, note or cove- nant, given bj' the vendee alone will be considered as intended only to countervail the receipt for the purchase-money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an ei^ipress agreement between the parties to waive the equitable lien : and on the other hand, that the lien will be considered as waived whenever any distinct and independent secur- ity is taken, whether by mortgage on other land, or pledge of goods, or personal responsibility of athird person, and also when a securitji-is taken upon the land, either for the whole or a part of the unpaid pur- chase-monej' ; unless there is an express agreement that the implied lien shall be retained. See this distinction recognized in Oilman V. Brown et al., 1 Mason, 192, 214, &e. ; Louis v. Govilland, 21 Cali- fornia, 178; Williams v. Young, lb. 227 ; Silby v. Stanley, 4 Minne- sota, 65 ; Fish v. Rowland, 1 Paige, 20, 30 ; Warner v. Van Alstyne, 3 Id. 513, 514; Shirley v. Sugar Befinery, 2 Edwards, 505, 501 ; Lagow v. Badollet, 1 Blackford, 41 T, 419 ; Boon v. Murphy, 6 Id. 273, 276 ; Conover v. Warren et al., 1 Gilman, 498, 501 ; Williams V. Boberts et al., 5 Ohio, 35, 40 ; Eskridge v. if' dure and Walker, MACKRETH V. SYMM0NS. 485 2 Yerger, 84, 85 ; Marshall v. Christmas et als., 3 Humphreys, 616 ; Foster v. The Trustees of the Athenxum, 3 Alabama, 302, 306 ; Dodge v. Evans, 4 Mississippi, 514 ; Palmer and others, Appel- lants, 1 Douglas, 422, 421 ; Mims V. Macon & Western E. E. Co., 3 Kelley, 333, 343 ; Manly et al. v. Slason et al, 21 Verm. 211 ; M'- GandlisJiY. Keen, 13 Grattan, 615, 625 ; Denny v. Steakly, 1 Heiskell, 156. It may, accordingly, be con- sidered as settled by the unanimous concurrence of the cases in this country, that, wherever this lien is recognized at all, it will not be affected by the vendor's taking the bond, or bill single, of the vendee ; Evans v. Goodlet', 1 Blackford, 246 ; Cox v. Fenwicke, 3 Bibb, 183, 184, 185; Taylor v. Hunter and Searcy, 5 Humphrej'S, 569 ; or his negotiable promissory note ; Oar- son V. Green, 1 Johnson's Chan- cery, 308, 309 ; White v. Williams, 1 Paige, 502 ; Tompkins v. Mit- chell, 2 Randolph, 428 ; Clark v. Hunt, 3 J. J. Marshall, 553, 558 ; Thornton, &c. v. Knox's Ex'rs, 6 B. Monroe, 14, 15 ; Aldridge v. Dunn, 1 Blackford, 249, 250 ; Eoss T. Whitson, 6 Yerger, 50 ; Sheratz V. Nicodemus, 1 Id. 9 ; Mauley et al. v. Slason et al., 21 Yermont, 211 ; Pinchain v. Collard, 13 Texas, 333 ; Trubody v. Jacobson, 2 California, 269 ; or a check drawn on a bank by the vendee, which is not presented or paid ; Honore's Ex'r V. Bakewell et al., 6 B. Mon- roe, 61, 12 ; or by accepting a new or substituted security for one previously given, unless there is an agreement that it shall be received as payment ; Bradford v. Harper, 25 Alabama, 331 ; or by any in- strument whatever, involving merely the personal liability of the vendee ; Mims v. Macon and West- ern E. E. Co., 3 Kelly, 333, 343 : but, that taking a mortgage of other property ; White v. Dough- erty et al., Martin & Yerger, 309, 323 ; (see also, Eichardson v. Eidgely et al., 8 Gill & Johnson, 81, 91 ;) or the bond or note of the vendee with a surety ; Wilson, &c. V. Graham's Executor, 5 Munford, 291 ; Francis v. Hazlerigg's Ez'rs, Hardin, 48 ; Williams v. Eoberts et al., 5 Ohio, 35 ; Mayham v. Coombs, Parker & others, 14 Id. 428, 435 ; Boon v. Murphy, 6 Blackford, 213, 216 ; Way v. Petty, 1 Carter, 102 ; Canico v. The Farmer's Bank,3S Maryland, 235 ; W Gonigal v. Plummer, 30 Id. 422 ; or a negotiable note drawn by the vendee and indorsed by a third person, or drawn by a third person and indorsed by the vendee ; or a draft on a third person and accep- ted by the drawee ; Bogerton v. Champlin, 42 Illinois, 51 ; Gilman V. Brown et al., 1 Mason, 192, 218, 219; S. C, 4 Wheaton, 256, 291 ; Conover v. Warren et al., 1 Gil- man, 498, 501 ; Campbell v. Bald- win et al., 2 Humphreys, 248 ; Marshall v. Christmas et als., 3 Id. 616 ; Baum v. Gregsby, 21 Cali- fornia, 112 ; Burke et al. v. Gray et al., 6 Howard's Mississippi, 521 ; Foster v. The Trustees of the Athenaeum, 3 Alabama, 302 ; Sa7i- ders V. M'Affee, 41 Georgia, 684; Fonda v. Jones, 41 Mississippi, 192; Durett v. Briggs, 41 Mis- souri, 356 ; Simerz v. Stein, 29 486 VENDOR S LIEN. Maryland, 112 ; Yargan v. Shri- ner, 26 Indiana, 364 ; will repel the lien, presumptively : and in like manner, an express security on the land itself for the whole amount unpaid, as by mortgage or deed of trust, will merge the implied lien ; Little and Telford v. Brown, 2 Leigh, 353, 855 ; Mattix v. Weeand, 19 Ind. 151 ; (though the contrary was held in Boos v. Ewing et at., 17 Ohio, 500, 520 ;) and an express security, or an express contract for a lien, on the land convej'ed, as to part of the amount remaiuing un- paid, will be an implied waiver of the lien to any greater extent ; Broiun v. Gilman, 4 Wheaton, 256, 290, 291 ; Fish v. Rowland, 1 Paige, 30, 31 ; Phillips v, Saunder- son et al., 1 Smedes & Marshall's Chan. 462, 465. In Griffin v. Blanchard, lY California, YO, this result was held to follow from taking the note of a husband and wife for the price of land sold to the wife. But though the mere taking of the vendee's personal se- curity will not be a discharge of this equity or lien, yet any conduct which shows an intention to give up the lien, or which makes it in- equitable for the vendor to insist upon it, as against the vendee or third persons, will, as against such persons, be a bar to its assertion ; Bedford v. Gibson, 12 Leigh, 332, 343 ; The Elysville Man. Go. v. The Ohio Ins. Co., 5 Maryland, 152; Carter v. The Bank of Georgia, 24 Alabama, 3Y ; Fowler V. RusVs Heirs, 2 Marshall, 294 ; Clarlc V. Hunt, 3 J. J. Marshall, 553, 558 ; Phillips v. Saunderson and others ; M'Gown v. Jones, 14 Texas, 682 ; Scott v. Orbisoh, 21 Arkansas, 202 ; and, on the other hand, the waiver arising from the acceptance of collateral security, is said to be only presumptive, and may be rebutted by evidence from other circumstances, of an inten- tion not to rely exclusively upon it, but to retain the equitable lien ; Campbell v. Baldwin et als., 2 Humphreys, 248, 258 ; Marshall V. Christmas et als., 3 Id. 616, 61Y ; Minis V. Macon and Western Rail- road Company, 3 Kellj^, 333, 342 ; Kyles V. Tail's Admr's, 6 Grattan, 44, 48 ; see' Tiernan v. Thurman, 14 B. Monroe, 27Y ; Fonda v. Jones, 42 Missouri, 42 Mississippi, Y92 ; Canico v. The Farmer's Bank, 33 Maryland, 235 ; Burette V. Briggs, 43 Missouri, 356. [It follows that taking a mort- gage or other collateral security will not extinguish the lien where there is an express agreement that it shall survive ; Daughaday v. Paine, 6 Minnesota, 443. It has been held that taking a mortgage for the purchase-money, excludes the lien, although the se- curity is defective or inadequate ; Camden v. Vail, 23 California, 633 ; but this rule does not apply where the vendor is misled by the fraudulent representations of the vendee ; See Cort v. Fougeray, 36 Barb. 195, 199 ; nor where, as in the case of a feme covert, the mort- gage is merely void ; Armstrong V. Boss, 5 C. E. Greene, lOT. The lien exists only as between the vendor and vendee, and per- haps their privies in estate or law ; and then only for the unpaid pur- chase-money. If an obligation to MACKRETH V. SYMMONS. 487 maintain the vendor and a third person, be substituted for the pur- chase-money, such an obligation will not be a lien; M'Killip v. M'Killip, 8 Barbour, 553. And a lien cannot, it has been said, be re- served orally to a third person who pays the purchase-money and takes the note of the vendee as a security; Skeggs v. Nelson, 25 Mississippi, 88 ; although as a surety of the vendee is entitled to subrogation to the lien of the vendor, on payment, it would seem immaterial whether the payment is made at the time or subse- quently, if the circumstances are such as to render it a purchase and not an extinguishment ; ante, .notes to Bering v. Wmchelsea. It has been said that equity will not give a specific remedy against the land to a stranger to the com- pact; nor unless the sale results in a definite pecuniary obligation to the vendor; Chapman v. Beards- ley, 31 Conn, 115. Alien will not, therefore, arise from the exchange of land for chattels, or for other land ; Govt V. Fougeray, 36 Barb. 195, ■ 199 ; nor where the consideration is an agreement to support the grantor; Meggs v. Delmock, 6 Conn. 438 ; or pay his debt ; Chap- man V. Beardsley. A somewhat different view prevails in Kentucky and Tennessee, and the vendor will not necessarily lose his lien by stipulating that the price shall be paid to a third person; Oault v. Trumbo, 11 ' B. Monroe, 682 ; Hamilton v. Gillett, 2 Heiskell, 681 ; while it was said in Burns v. Taylor, 23 Alabama, 225, that there is nothing to distinguish an exchange of lands, so far as re- spects the application of this prin- ciple of lien for the purchase- money, from a sale of lands ; Brad- ley V. Bosler, 1 Barb. Ch. 125. Whatever the rule may be on these points, it is clear that the sale of land for a sum certain, pay- able in goods or land, is not in consistent with the lien, because the vendor may maintain indebita- tus assumpsit if the buyer makes default. In like manner, a vendor who is fraudulently induced to take land instead of the money, for which he originally agreed, may treat the payment as a nullity and enforce his lien : Bradley v. Bosler. The lien for the price of chattels ceases on delivery ; James V. Bird, 8 Leigh, 51 ; and hence where real and personal property, are sold under an entire contract for a gross sum, there will be no lien, even as it regards the land ; M'Candless v. Keen, 13 Grattan, 605 ; but this argument does not apply where it appears on the face of the instrument or from extrin- sic evidence, that the land and chattels were valued separately, though conveyed by the same deed ; Russell v. M^ Cormick, 45 Alabama, 581. On principle, a person having got the estate of another, shall not as between them keep it and not pay the con- sideration. While this is the rule, it will yield to circumstances. If it appears from the transaction as a whole, or the terms of the deed, that the vendor relied exclusively on the personal responsibility of the vendor, and did not look to the land, a lien will not be implied 488 VENDOR'S LIEN. contrary to the intention of the parties. Thus, where land, slaves, stock and farming implements, were sold and conveyed by the same instrument, it was held that as there could be no lien on the slaves and stock, so the land was also presumably exempt ; Jf ' Gand- lish V. Keen, 13 Grattan, 616,628. In like manner the execution of a deed in consideration of a cove- nant to pay by instalments, to pay at a future day, to maintain the grantor, or to pay him an an- nuity, affords ground for an infer- ence that the land is not to be tied up during the interval that must elapse before the fulfilment of the covenant, which will be conclusive if it appears that the covenant was substituted for the purchase-money, and was in fact the thing bargained for; M'Gmidlish v. Keen, 13 Grat- tan, 615, 625. The subject was elaborately examined in M'Gand- lish V. Keen, where Lee, J., held the following language in deliver- ing the opinion of the court : " From the English cases, it would seem to be deduced that in general this lien is presumed to exist, and that it will follow the subject into the hands of a purchaser with notice from the vendee : Hughes v. Kearney, 1 Sch. & Lef. 132 ; Mackreth v. Symmons, 15 Ves. R. 329, and the cases cited and reviewed by Lord Eldon : Saunders v. Leslie, 2 Ball & Beat. 509 ; Winter v. Anson, 3 Russ. 488 (3 Cond. Eng. Ch. R. 495) ; Grant v. Mills, 2 Ves. & Beame, 306. Nor will the mere taking of a note or covenant for the payment of the purchase-money suffice to extinguish the lien : Oih- bons V. Baddall, 2 Equ. Cas. Abr. 682, n. (6.) ; Ex parte Peake, 1 Madd. R. 344 ; Gary's Ch. R. 25, cited 3 Sug. Vend. [192], [193] ; Winter v. Anson, ubi sup. ; Hughes V. Kearney, ubi sup. ; Teed v. Gar- ruthers, 2 Younge & Coll. 31 ; 21 Eng. Ch. R. 31. Nor will it make any difference that the purchase- money claimed is in the form of an annuity, and not a gross sum : Blackburn v. Gregson, 1 Bro. 0. C. 420 ; Tardiffe v. Scrughan, cited 1 Bro. C. C. 423. So in case of a covenant for payment of purchase- money in weekly sums, the vendor was held entitled to the lien, by Wigram, V. C, in Matthew v. Bowler, 6 Hare's B. 110 (31 Eng.. Ch. R. 110.) It is true, that Lord Camden's decision in Tardiffe v. Scrugan, would appear to have been criticised and questioned by Lord Eldon, in Mackreth v. Sym- mons ; and in Glarke v. Boyle, 3 Simons' R. 499, 502, the Vice Chancellor (Sir Lancelot Shad- well) is ..reported to have said, that it appeared to him that Lord Eldon had, in Mackreth v. Sym- mons, expressly overruled Lord Camden's decision in Tardiffe v. Scrugan ; and Tucker, P., in Brawley v. Gatron, 8 Leigh, 522, 530, speaks of the latter case as overruled. He says, " it certainly was.'' However, in Buckland v. Pocknell, 13 Simons' R. 406, 412 (36 Eng. Ch. R. 406), Sir. L. Shad- well, alluding to what he had been reported as having said in Clarke V. Boyle, observed, that if that had been said in those very terms, it was said too strongly ; because al- MACKRETH V. SYMMONS. 489 though Lord Eldon was not satis- fled with the decision in Tardiffe V. Scrugan, in all its parts, yet it could not be said, that he had overruled it. The decision, too, is supported by that of Matthew V. Bowler^ above cited, and the case of Winter v. Lord Anson ; and is fully sustained by the opin- ion of Sir Edward Sugden, who thinks that it is still an authority, and that in such a case the lien will be raised : 3 Sug. Vend., Ch. 18, §§ 32, 38, p. 127, 131 (ed. of 1843). But in every case, whether of an entire gross sum or a sum payable in instalments, or in the form of an annuity for lives, the question of lien depends on the particular circumstances; and al- though, generally speaking, the lien exists, j^et it may be waived or repelled by the character of the case. " The rule," says Judge Storj', " is manifestly founded on a supposed conformity " with the in- tention of the parties, upon which the law raises an implied contract • and, therefore, it is not inflexible, hut ceases to act where the circum- stances of the case do not justify such a conclusion." Oilman v. Brown, 1 Mason's R. 191. What are the circumstances which shall decide whether lien or no lien, is a matter of some difficulty and obscurity, and many doubts and nice distinctions will be found in the authorities. As the lien is generally presumed, it would seem that the burden is upon the pur- chaser to show that it was waived : Hughes v. Kearney, above cited ; Mackreth v. Symmons, 15 Ves. R. 329 ; Garson v. Green, 1 John. Ch. R. 308. But this the purchaser may do, not only by showing an express agreement to that effect, but also by the reasonable infer- ence and implication from the cir- cumstances. Now it would seem settled, that the mere taking a bond, promissory note, bill of ex- change, or a simple covenant of the vendee himself will not repel the lien, because, as said by Lord Eldon, it may have been given, not to supersede the lien, but for the purpose of ascertaining the debt, and countervailing the receipt in- dorsed upon the conveyance. But it is equally clear, that where a dis- tinct and independent security is taken, either of other property, or the responsibility of a third per- son, the party having carved out his own security, the law will not come to his aid by creating another, and the equitable lien will be gone Bond V. Kent, 2 Vern. R. 281 Fawell V. Heelis, Amb. R. Y24 Nairn v. Prowse, & Ves. B. "752 Cole V. Scot, 2 Wash. 141; Fish V. Eoivland, 1 Paige's R. 20 ; Wil- son V. Graham's Fx'or, 5 Munf. 29 Y ; Gilman v. Brown, 1 Mason's R. 191 ; S. C. Wheat. R. 255. In such cases, the waiver of the lien is placed upon the ground of in- tention, deduced from the party's taking a special securitj^" " See 3 Sugd.Vend. 191; 4 Kent's Comm. 153. So where, although the responsibility of a third person be not taken, if it appear that the note, bond or covenant was substi- tuted for the consideration money, and was in fact the thing bargained for, the lien will not exist. There it may be inferred that credit was 490 VENDORS LIEN. given exclusively to the person on whom the security was taken. Thus in Clarke v. Boyle, 3 Sim. R. 499 (5 Cond. Eng. Ch. R. 218), the conveyance was in considera- tion of the vendee entering into covenants therein contained, for an annuity to the vendor, and three thousand pounds to certain persons, in the event of the ven- dee's marrying. The "Vice Chan- cellor distinguished the case of Tardiffe v. Scrugan. He con- sidered that the deed plainly marked out that the considera- tion on the one side was the con- veyance of the estate, and on the other, the entering into the cove- nants." " He said that to declare a lien in such a case would be to go further than any of the cases that had been previously decided upon the sub- ject of lien on purchased estates, and to do that which appeared to be contrary to the intention of the parties. He accordingly pro- nounced against the lien." " This case is cited as authoritj', and with apparent approbation, by Tucker, P., in Brawley v. Catron, 8 Leigh. 522, 530; and although the Vice Chancellor said that he considered it decided by the case of Winter v. Lord Anson, 1 Sim. & Stu. 484 (1 Cond. Eng. Ch. R. 221), in apparent ignorance of the fact that the opinion of Sir J. Leach in that case had been over- ruled by Lord Chancellor Lynd- hurst (3 Russ. R. 488, 3 Cond. Eng. Ch. R. 495), j'^et its weight as authority is not on that account lessened ; because the difference between Sir J. Leach and Lord Lyndhurst was not in the princi- ple applicable to the case, but as to the exact state of the case. The former, when he decided against the lien (for he had at first decided in favor of it), thought that the case was in principle the same as if the conveyance had stated the real contract of the parties ; and that by the effect of that contract, the vendor agreed to part with his estate on consideration of the bond for the future payment of the price, and that upon the execution of such bond, the estate passed to ' the vendee in equity as well as at law." " Lord Lyndhurst, however, held that the lien was not affected by the circumstance that the period of payment was dependent on the life of the vendor." "He did not think it afforded such evidence of intention to rely on the personal credit of the ven- dee as would waive the lien. The fault in the reasoning of Sir John Leach, as stated by Sugden (8 Sug. Vend. 18t, § 6), was that he placed the case on grounds that did not exist. He assumed that it was a case in which, in effect, the conveyance was, in considera- tion of a covenant, in a deed to pay the price at the future period. But though the conveyance was in pursuance of the agreement, but in consideration of the purchase- money. In Clarke v. Boyle, how- ever, the very case was presented which was erroneously assumed to exist in Winter v. Lord Anson. The conveyance was, in fact, in consideration of covenants entered into by the same deed for payment MACKRBTH V. SYMMONS. 491 of the price. " There is a marked difference," says Sir Edward Sug- den, " between a conveyance as for money paid with a separate security for the price, whether by covenant, bond, or note, and a conveyance expressed to be in consideration of covenants which the purchaser enters into by the deed itself. It may be considered against the bearing of such a security for the purchase-money to raise another upon the estate itself by implication from the very transaction." He concludes, there- fore, that Clarke v. Boyle is not shaken by Lord Lyndhurst's deci- sion in Winter v. Lord Anson.'''' "The principle of the ease of Clarke v. Boyle, was applied in the case of Parrott v. Sweeiland, 3 Mylne & Keene, 655 (10 Cond. Eng. Ch. R. 348). There a.receipt was indorsed on the conveyance for the bond of the vendee, condi- tioned for the payment of three thousand pounds to one Orlebar, with whom the vendor was about to be united in marriage, and ex- pressed to be the full consideration to be given by the vendee. Sir John Leach, Master of the Rolls, held that it was a case of substitu- tion for the price, and not security, and pronounced against the heir. The cause was reheard before the V. C. Sir L. Shadwell and Mr. Jus- tice Bosanquet, sitting as Lords Commissioners, and the decree of the Master of the Rolls was af- firmed. So in Buckland v. Pock- nell, 13 Sim. R. 406 (36 Eng. Ch. R. 406), which was the case of a conveyance in consideration of cer- tain annuities granted by the ven- dee, also being bound to pay off a mortgage debt to which the estate was subject : Held by Sir L. Shadwell, V. C, referring to Parrott v. Sweetland, that there was no lien for the annuity. And the same principle may be traced in other cases. Now the case before us seems plainly to fall within the class of which Clarke v. Boyle is the leading case. It differs from that case in no material particular. Here the consideration of the con- veyance of the sum of five thou- sand three hundred and sixty-five dollars, and the covenants of Coke to maintain Mrs. Byrd during her life, for the payment of the annuity, in case she should survive him ; of three hundred dollars if she chose to board out of his family, or if she should continue in his family after his death, of one hundred and fifty dollars ; and in the latter case, that she was to have a room and furniture, &c., and in either ease a maid servant to wait upon her." " These covenants of the vendee, and the conveyance to him, were by the same deed, and upon the principle of the above cases, the covenants were the thing contrac- ted for, and no lien can be held to exist."] The vendor, having this equita- ble lien, may file a bill in equity to have satisfaction of it, and the court will order the land, or so much of it as may be necessary, to be sold for the discharge of the debt ; Mullikin v. Mullikin, 1 Bland, 538, 541 ; Wilson, &c., v. Bavisson, 2 Robinson's Virginia, 385, 404 ; Wade's Heirs v. Green- 492 vendor's lien. wood, Id. 4T5, 484; M'Gee v. Beall, 3 Littell, 190, 192 ; Outton V. Mitchell, 4 Bibb, 239. But a lien of this kind is not an original, specific, and absolute charge on the land, but only an equity to re- sort to it upon the failure of the personal estate. The personal es- tate of the purchaser is the primary fund for the payment of the ven- dor's claim, and the real estate is liable only secondarily. Therefore, a bill in equity, to enforce the vendor's lien, must show that the complainant has ex- hausted his remedy at law against the personal estate, or must aver such facts as show that the com- plainant cannot have a full, com- plete, and adequate remedy at law Eyler v. Grabbs, 2 Maryland, 131 Stevens v. Burt, 11 Indiana, 141 but a court of equity will not com- pel him to proceed at law against the particular land in question ; Pratt V. Van Wyck's JEx'rs, 6 Gill & Johnson, 495, 498 ; Hall v. Maccubin, Id. 107, 110 ; Richard- son V. Stillinger, 12 Id. 478, 482 ; Bottorf V. Gohner, 1 Blackford, 281 ; Russell v. Todd, 1 Id. 239 ; Roper V. If Cook & Robinson'' s Adm'r, 1 Alabama, 319, 324. A different view of the nature of this lien, however, prevails in some of the courts ; which consider it as in the nature of a mortgage, and hold that the vendor may enforce his claim in equity without hav- ing obtained a judgment, or taken any steps whatever at law ; High & Wife V. Batte, 10 Yerger, 186 ; Richardson, &c. v. Baker, 5 J. J. Marshall, 323 ; Galloway v. Hamil- ton's Heirs, 1 Dana, 516 ; Sparks V. Hess, 15 California, 186. If there be an unexecuted con- tract of sale, the vendor may file a bill to have a specific performance, and then h£fve the land sold for satisfaction of this lien ; Clark v. Hall, 1 Paige, 382, 385 ; Brush & Stanbury v. Kinsley, Adams & Stillwell, 14 Ohio, 20. In the distribution of a dece- dent's, or an insolvent's estate, equity will marshal the assets, so as to put the vendor altogether upon his equitable lien, for the benefit of other creditors ; Iglehart V. Arraiger, 1 Bland, 519, 524; and perhaps of legatees ; see Schne- bly & Lewis v. Ragan, 1 Gill & Johnson, 120, 126 ; Hamilton v. Rakestram, 14 Iowa, 14*7. In regard to the question,wheth'er the benefit of the vendor's lien ac- companies an assignment of the vendee's note or bond for the pur- chase-money, the cases are in direct conflict. It seems to be settled, that if a debt is secured by an ex- press lien, as, where there is a mortgage, or an agreement for a lien, which creates an equitable mortgage, or where the vendor has not parted with the legal title, an assignment of the debt entitles the assignee to the benefit of the pledge; Graham v. M' Campbell, Meigs, 52,55; Eskridge v. M' Clure and Walker, 2 Yerger, 84, 8Y ; Tanner v. Hicks et ah, 4 Smedes & Marshall, 294, 300 ; see, also, Norvell v. Johnson et als., 5 Hum- phreys, 489, 491 ; Williams v. You7ig, 21 California, 172 ; Lewis V. Covelland (lb.), 227 ; but a ven- MACKRETH V. SYMMONS. 493 dor's equity, or implied lien, is not necessarily governed by the same principle. In Kentucky, Iowa, and Indiana, indeed, it appears to be settled that there is no distinc- tion between the vendor's implied lien and any express lien, as to transferability, and that an assign- ment of the note or bond for the purchase-money carries the lien with it ; Kenny v. Gollins, 4 Lit- tell, 289 ; Johnston v. GwatJimey, Sc, Id. 31T; Eubank y . Poston, &c., 5 Monroe, 285, 28^ ; Edwarda v. Bohannon, 2 Dana, 98 ; Honore's Ex'r V. Bakewell et al., 6 B. Mon- roe, et, 11, 12 ; Ripperdon v. Co- zine, Sc, 8 Id. 465, 466 ; Lagoiv v. Badollet, 1 Blackford, 411, 419, 420 ; Brumfield v. Palmer, 1 Id. 221, 230 ; Fisher t. Johnson, 5 In- diana, 492 ; and in Alabama, though an assignment of a note, expressly, " without recourse," does not transfer the lien ; UalVs Ex'rs V. Click et al., 5 Alabama, 363, 364; Grigsby v. Hare, 25 Alabama, 321 ; yet an endorsement not thus restricted, does transfer the lien ; Roper v. W Gook and Robertson's Adm'r, 1 Id. 319 ; White V. Stover et al., 10 Id. 441 ; Plowman and M' Lean v. Riddle, 14 Id. 169, 111 ; Grigsby v. Mare, 25 Alabama, 321 ; WellsY. Morrow, 38 Id. 125. Elsewhere, however, the decisions have been different ; and the weight of authority is de- cidedly against this lien's accom- panying a transfer of the debt ; Webb V. Robinson, 14 Georgia, 216 ; Ross v. Huntzen, 36 Califor- nia, 331 ; Williams v. Govelland, 21 Id. 118. In Ohio and Tennessee it is well settled, that this lien is merely a personal and equitable right, not passing with the assign- ment of the vendee's obligation, but extinguished when an assign- ment takes place ; Jackman v. Hal- lock & others, 1 Ohio, 318 ; Tier- nan V. Beam & others, 2 Id. 383 ; Brush & Stanbury v. Kinsley, Adams & Stillwell, 14 Id. 20, 24 ; Horton v. Horner, Id. 431, 443 ; Simpson v. Montgomery, 25 Ar- kansas, 565 ; Claiborne v. Crockett, 3 Terger, 21, 35 ; Gann v. Chester, 5 Id. 205, 201 ; Sheratz v. Nicode- mus, 1 Id. 9, 13 ; and the same thing had been held in North Car- olina, before the whole doctrine was rejected from that State ; Green et al. v. Crockett et al., 2 Devereux & Battle's Equity, 390, 892. In New York and in Missis-, sippi, also, it has been decided that an endorsement of the vendee's ne- gotiable note, where the assignor has not been made liable upon his endorsement, does not carry the lien by implied assignment, it being left undetermined, in these eases, whether the lien is transferable by a special conveyance ; White v. Williams, 1 Paige, 502, 506 ; Briggs et al. V. Hill, 6 Howard's Missis- sippi, 362, 364; Lindsey v. Bates, 42 Mississippi, 391 ; see Briggs, Lacoste & Co. v. The Planters' Bank, 1 Freeman's Chancery, 514, 584. In Maryland, also, it was settled in the Court of Appeals, that an assignment, with an exjiress agreement that the assignor should in no case be made liable, extin- guished the lien, it neither passing to the assignee, nor remaining operative in favor of the assignor : " The lien," the Court said, " was 494 VENDOE'S LIEN. intended to secure the payment of the purchase-money to the ven- dor ; " and the assignment of the notes without responsibility for their ultimate payment, amounted, as far as the vendor was concerned, to absolute payment and satisfac- tion of his claim ; Schnebly & Lewis V. Ragan, Y Gill & Johnson, 120, 126. And in the Court of Chan- cery, in that State, it has been de- cided that this lien is, in its nature, unassignable, and that an assign- ment of the note or bond extin- guishes the lien ; Iglehart v. Armi- ger, 1 Bland, 519, 524, 525 ; Hayden V. Stuart, i Maryland, Ch. 280; Welsh V. Boyle, 30 Maryland, 262 ; sec, however. Hall v. 3Iaccubin, 6 Gill & Johnson, lOT, 109. The cases which hold that an indorse- ment or assignment, upon which the assignor is not made liable, does not transfer, but extinguishes the lien, but that if the endorser is made liable, the lien is not extinguished, do in fact adjudge this lien to be not assignable ; the view which they take is, that the endorsee or assignee, in a suit against the ven- dee, cannot enforce the lien, but that if he recovers against the en- dorser, the latter, getting the note back, may enforce his original lien against his vendee. This is de- ciding, in the clearest manner, that the lien is not assignable. But though the balance of authorities is thus, altogether, against the transferability of this equity, there seems to be no doubt, that a surety for the payment of the purchase- money, may, after discharging it, claim to be subrogated to the ven- dor's rights in respect to it ; ante, 150 ; Tompkins v. Mitchell, 2 Ran- dolph, 428 ; Mellery v. Cooper, 2 Bland, 199, note. [It is not easy to comprehend how a surety can be subrogated to that which cannot be assigned, or how any one can be entitled to use a right for himself, and yet unable to exercise it for the benefit of an- other. Subrogation is, in effect, an assignment or transfer by im- plication or operation of law, as deduced from the act or contract of the parties ; and every equitable assignment is carried into eifect by subrogating the assignee to the rights and remedies of the assignor. Rights which do not admit of sub- rogation, may therefore be unas- signable, but those which do, may always be made the subject of an assignment under proper circum- stances. If a vendor, who negoti- ates a note given for the purchase- money, can recur to the lien for his own protection, if the note be thrown back upon him, he may ob- viously enforce it for the protec- tion of the endorsee. Dixon v. Dixon, 1 Maryland, Ch. 220 ; Wat- son V. Bane, 1 Maryland, 111 ; Fisher v. Johnson, 5 Indiana, 492. The better opinion consequently seems to be that where, as in the case of the indorsement of a note, the nature of the transfer is such that the assignor is interested in the recovery of the debt, and will be a loser if it is not paid, the lien will survive for his security, and may consequently be enforced for that of the assignee; Griggs v. Hair, 25 Alabama, 32T ; Lindsay V. Bates, 42 Mississippi, 39T ; Stratton v. Gould, 40 Id. 118. MACKRETH V. STMMONS. 495 The same result will follow when the debt is guaranteed or transfer- red as a collateral security. But an absolute transfer or indorse- ment, without recourse, extin- guishes the lien ; See Williams v. Christian, 23 Arkansas, 255 ; al- though equity may still enforce an agreement that it shall enure to the assignee ; Crawley v. Biggs, 24 Arkansas, 563 ; Willis v. Bryant, 'in Maryland, 313. A covenant to collect the debt for liis benefit, and enforce the lien as a means to that end, would obviously be obligatory, and an assignment which cannot operate directly, may he construed as a covenant for the purpose of carrying it into effect. In Waison v. Bauer, 1 Maryland, 117, the union of the vendor and vendee in a mortgage to a thirc^ per- son, was held to extinguish the ven- dor's lien, without transferring it to the mortgagee, and the mortgage was consequently postponed to a judgment which had been obtained against the vendee since the sale, thus defeating the end which it was the object of the transaction to secure. In this instance, the sale was not consummated by a deed, and the court overlooked the distinction between such a case and the equitable lien of an un- paid vendor who has not con- veyed. Where the vendor re- tains the title, he is legally the owner, and a conveyance by him for value, and without notice, will defeat the equitj^ of the vendee and of those claiming under him as creditors and purchasers ; Smith V. Scheeder, 23 Missouri, 44T. If the grantee lias notice, he will take subject to their equitj-^, which is to have a deed on tendering the price. It will make no difference in the application of the principle that the vendee joins in the deed. Such an instrument operates as the grant of the vendor, confirmed by the vendee, and if the confirmation does not strengthen the grant, it does not detract from it. And the better opinion is, that where a vendor conveys to the vendee for the purpose of enabling him to give a mortgage, which is executed on the same day, the mortgagee will have priority to the extent of the unpaid purchase-money, over the judgment creditors of the ven- dor. The whole is in effect one transaction, and the seisin of the vendee being transitory and in- stantaneous, does not vary the le- gal aspect of the case ; Holhrook v. Kenney, 4 Mass. 569 ; Chicker- ing V. Lovejoy, 13 Mass. 51 ; Stow V. Tift, 15 Johnson, 458. The mortgagee succeeds to the right of the vendor to be paid before part- ing with the title, and although the judgiiient creditors have all the equity of the vendee, they have no more. It is conceded that the vendor may execute a deed and take a mortgage for the pur- chase-money,- without letting in the incumbrances that have at- tached to the equitable estate of the vendee ; and the case is the same in principle where the mort- gage is given tp a third person, at his instance. Under these cir- cumstances, the vendor's hold on the land is clearly gone ; Clover V. Bawlings, 9 Smedes & Marshall, 122; but it is as clearly trans- 496 VENDORS LIEN. ferred to the mortgagee. The point was decided the other way in Lynch v. Dearth, 2 Penna. R. 101, on grounds which are not easily reconcilable with principle. The error is the more obvious, be- cause the agreement under which the vendee's equity arose, not being recorded, it was not incumbent on the mortgagee to carry the search for incumbrances against him be- hind the time at which he ac- quired the legal title. The vendor's lien is assignable in New York. If he assign the debt absolutely, without providing for the transfer of the lien, it will be extinguished ; Smith v. Smith, 9 Abbott, 420. But this result will not follow from an assignment for the benefit of creditors ; Holhrook V. Smith, 3 Barb. 261 ; nor, as it seems, where the debt is transfer- red as collateral security.] In Moreton v. Harrison, 1 Bland, 491, and Lingan v. Hen- derson, Id. 236, 281, Mr. Chancel- lor Bland, upon the ground that this lien was a trust in the land, held that it was not barred when the personal security or debt was barred ; but that it would continue till the presumption of payment accrued ; and that, though it would be presumed to be at an end after twenty years, yet that presumption might be rebutted by circum- stances, and the lien might be en- forced after a still longer period But this appears to be altogether erroneous. Even if it is a trust, it is not a direct trust for the pay- ment of a debt, (as in Alexander V. M'Murry, 8 Watts, 504, and Addams v. Heffernan, 9 Id. 580 ;) but only a collateral trust for the security of the debt, and must be inoperative when the debt is bar- red. See the remarks of Catron, C. J., in Sheratz v. Nicodemus, 7 Yerger, 9, 12. And the better opinion would seem to be, that as it is a remedy or security, not a right of property, and does not vary the nature of the debt, or take it out of the operation of the Statute of Limitations, it cannot be enforced after the bar of the statute has attached to the debt ; Borst V. Corey, 15 New York R. 505 ; Trotter v. Erwin, 21 Missis- sippi, 112. This equity of a vendor, as has already been said, will be enforced against the vendee, and all stand- ing in his position : against his heirs ; Oarson v. Green, 1 John- son's Chancery, 308, 309 ; Wade's Heirs v. Greenwood, 2 Robinson's Virginia, 4Y5, 484 ; and as against them it will attach upon improve- ments made on the land by the vendee in his lifetime ; Warner v. Van Alstyne, 3 Paige, 513, 514 ; Phyfe V. Warden, 5 Paige, 268; Oooh V. Graft, 41 Howard, New York, 219 ; and upon a sale of the land for debts, after the vendee's death, the purchase-money is first to be paid out of the proceeds ; White V. Gasanave, 1 Harris & Johnson, 106 : against his widow's right of dower, as that estate is cast upon her by act of law, and not as a purchaser; Warner V. Van Alstyne ; Wilson, &c. v. Davisson, 2 Robinson's Virginia, 385, 404; Ellicott v. Welch, 2 Bland, 243, 244 ; see also Nazareth Lit. & Benevo. Inst. v. Lowe & MAOKKETH V. SYMMONS. 497 Wife, 1 B. Monroe, 251, 258: against a voluntary donee ; Up- shaw et ux. v. Hargrove, 6 Smedes & Marshall, 286, 292 : and against a purchaser for value, with notice, actual or constructive, on the face of the deed, or aliunde, that the purchase-money is unpaid ; Wilcox V. Galloway, 1 Washington's Vir- ginia, 38; Graves v. M'Gall, 1 Call, 414 ; Bedford v. Gibson, 12 Leigh, 332, 347 ; Pierce v. Gates, I Blackford, 162; Brumjield v. Palmer, Id. 221, 230 ; Mounce v. Byers, 11 Georgia, 180 ; Thorn- ton, &o. V. Knox's Ex'r, 6 B. Monroe, 14 ; Honore's Ex'r v. Bakewell, Id. 61 ; Tiernan v. Thurman, 14 Id. 219 ; Gr aping- ether V. Fegervary, 9 Iowa, 163 ; Muretl V. Wells, 18 Indiana, 111 ; Eshridge v. If ' Clure & Walker, 2 Yerger, 84, 86 ; Sheratz v. Nico- demus, 1 Id. 9, 11 ; M' Knight & Brady v. Bright, 2 Missouri, 110 ; Briscoe v. Bronaugh, 1 Texas, 826, 330, 382 ; Groskey v. Ghap- man, 26, Indiana, 333 ; Wright v. TToo^Ztenii and! Wife et al., 10 Gill & Johnson, 388 ; (see also, Ghise- lin & Worthington v. Ferguson, 4 Harris & Johnson, 522, 525 ;) and, in general, against all not appear- ing clearly to be purchasers for value without notice ; High & Wife V. Batte, 10 Yerger, 186, 836 ; Mounce v. Byers, 16 Georgia, 469 ; Burlingame v. Bobbins, 21 Barbour, 321 ; who have actually paid the purchase-money; Bip- perdon v. Gozine, &c., 8 B. Mon- roe, 465, 466 ; Gault v. Tirmbo, II Id. 682 ; but not against those who are bona fide purchasers with- out notice ; Blight's Heirs v. VOL I 32 Banks, &c., 6 Monroe, 192, 198; Taylor v. Hunter & Searcy, 5 Humphreys, 569, 510 ; Stewart et al. V. Ives et al., 1 Smedes & Mar- shall, 191, 206 ; Games v. Hub- bard et al., 2 Id. 108, llZ;Dunlap V. Burnett et al., 5 Id. 102, 110 ; Parker v. Foy, 43 Mississippi, 260 ; Oooch v. Baxter, 2 Duval, 389 ; Work v. Brayton, 5 Indiana, 396 ; Goster v. The Bank of Geor- gia, 24 Alabama, 31 ; Bradford v. Harper, 25 Id. 331 ; Burch v. Garter, 44 Id. 1 15 ; Selby v. Stan- ley, 4 Minnesota, 65 ; Webb v. Bobinson, 14 Georgia, 216 ; dic- tum in Bayley v. Greenleaf, 1 Wheaton, 46, 50. Notice to the agent of the purchaser, will, as in. other cases, operate as notice to the principal ; Mounce v. Byers, 1 1 Georgia, 180 ; and in Binggold v. Bryan, 3 Maryland Ch. 488, the possession of the vendor was said to be notice of his lien to a subse- quent purchaser from the vendee. The right to protection as a bona fide purchaser does not exist, un- less the deed is executed and the price paid before notice. If part only is paid, the vendor's lien will attach as to the residue, which will be due to him and not to the vendor ; Parker v. Foy ; Perkins V. Sivank, 4 Mississippi, 349. See Bassett v. Nosworthy, vol. 2 notes. In regard to the existence of this lien as regards creditors, the cases are somewhat at variance. It ap- pears to be agreed that it does not prevail against a bona fide mortga- gee without notice, who in fact is regarded in equity as a purchaser ; Duval V. Bibb, 4 Henning & Mun- ford, 113, 120; Wood v. Bank of 498 VENDORS LIEN. Kentucky, See now, 1 Vict. c. 26, s. 6. 2 Ante. 3 Cowper V. Soott, 3 P. Wms. 123. 508 ELECTION. a disposition of the surplus, it was held that they should stand either by the will or by the custom ; and if by the former, that they should not defeat the devise over. That, in cases where general words in a will had been restrained from passing all which the testator had, it hath been upon the testator's intention manifestly appearing in the vs'ill itself, not to pass so much as the generality of his words would comprehend ; but, in the present case, his intent plainly appears to pass all : nor will that intent be satisfied by saying, that he had a reversion of the lands com- prised in the articles, since he would have been tenant in tail under the articles, and only for life under the will. Lord Chancellor Talbot. — It cannot be doubted but that, upon application to this Court for the carrying into execution the articles of 1677, the Court would have decreed it to be done in the strictest manner, and would never leave it in the husband's power to defeat and annul everything he had been doing: and the nature of the provision is strong enough for this purpose, without any express words, and I must, therefore, consider what r*9QQ-| ^^^ the *operation of the deed of 1698, which is declared '- J to be in performance of the true intent and meaning of the articles. If it be so, all is well ; but if it be not, it only shows that the parties intended it so, but were mistaken. So was the case of West v. Errissey^ where the articles were, by the House of Lords, decreed to be made good ; and the same must be done in this case, if nothing intervenes to prevent it. The settlement, in 1716, whereby the grandfather settled other lands upon his son's marriage, has been called a satisfaction for those articles ; but to me it appears neither an actual Siitisfaction nor to have been intended as such. The grandfather had done that in 1698, which he apprehended to be a satisfaction for the articles ; but this deed proceeds upon considerations quite different from those of the articles, the persons claiming under this being purchasers for a consideration entirely new, the limitations being entirely different ; and, therefore, it would be absurd to call this a satisfaction for another thing it hath nothing to do with, and to which it is no way relative. The next thing to be considered is, the fine levied of the lands in question in the year 1723, by the grandfather ; the intent whereof was to have the absolute ownership of those lands in bim. And one reason why no application hath been made till now to have those articles carried into execution, might be that during the grandfather's life nobody was entitled to anything in possession under them. Then comes the will in 1725, whereby he gives part of those lands, settled in 1698, to his daughters ; thereby showing his ap- prehension to be, that, by a fine, lie had given himself a power of disposing of them ; and it would be a very strained construc- > 2 P. Wms. 349 ; 1 Bro. P. C. 335 ; Toml. edit. STREATFIELD V. STKEATFIELD. 509 tion to say that he intended this, not as a present devise to his daughters, but to take effect out of the reversion of the lands comprised iu the articles. The next thing is the devise to the trustees for his grandson the plaintiff, upon his attaining the age of twenty-one; and the question here is, whetlier the general *\vords shall ever r-x-o^n-i pass lands not capable of the limitation in the will ? And '- -' to that have been cited Ro^e avd Bartlett's case, Cro. Car. 292, and other cases ; but they cannot influence the present case : for, the testator had legally a power to dispose of those lands ; and though they might be affected with a trust in equity, y&t that cannot be supposed to lie in his connusance, he having done an act to enable himself to dispose of these lands. And it differs from the case that was put of an express trust, and the trustee devises all his lands; for there the trustee carmot be ignorant that the lands which he holds in trust are not his own. But what makes his intent clear is, that he hath devised part of these lauds to his daughters, and he must have looked upon himself as master of the one part as well as the other ; I, therefore, think his intent was clear to pass these lands by the will; and if so, we must DOW consider what will be the effect of this will. If the plaintiff' has a lien upon the lands of the articles, then he may stand to them if he pleases ; but when a man takes upon him to devise what he had no power over, upon a supposition that his will will be acquiesced under, this Court compels the devisee, if he will take advantage of the will, to take entirely, but not partially under it; as was 'done in J^Joys ; nd Mordaunt's case ; there being a tacit con- dition annexed to all clevises of this nature, that the devisee do not disturb the disposition which the devisor hath made. So are the several cases that have been decreed upon the custom of London. The only difficulty in the present case is, that what is given to the plaintiff is precarious, nothing being given to him if he dies before twenty- one, and if after, then but an estate for life ; and that he appears before the Court in the favourable light of being heir-at-law ; but this will not alter the case. The estates whicti the testator has given him were undoubtedly in his power ; he hath given them to trustees until his grandson attain twenty-one, and has disposed of them in such a manner as that there can never be any undisposed residue to go *to the plaintiff" as pg^;]^-! heir-at-law ; and surely it is as much in the power of the Court to make this bequest, thus limited, to be a satistaction, if the party will stand to the will, as in the other cases. Indeed; if he takes by the will, there is nothing to make satisfaction to •his sisters tor their general chance under the articles ; but that is because nothing is left them by the will ; and they cannot be said to be quite destitute of provision, since it is just and reasonable that they should be maintained by their mother, who is entitled to a kr"-e and ample provisiim by her marriage settlement : nor can what is devised to the plaintiff' be looked upon as intended by the testator to go towards the maintenance of younger chil- 510 ELECTION. dren ; for, if the plaintifi' dies before twenty-one, then all the profits already received are to go to his aunts ; and so by that construction 1 must take the maintenance out of their estate, and oblige them to contribute to the maintenance of distant relations, viz., nieces, at the same time that the mother (who hath an ample provision) would be left at large, and under no tie of maintaining her own children. And so decreed' the plaintiff to have six months after he comes of age, to make his election, whether he will stand to the will or the articles ? And if he makes his election to stand to the latter, then so much of the other lands devised to him as will amount to the value of the lands comprised in the articles, and which were devised to Margaret and Martha, to be conveyed to them in fee. Noys V. 3Iordaunt, and Streatfield v. Streatjield, are printed to- gether, since they are usually cited as having conclusively established the doctrine of election, which is founded upon the principle, that there is an implied condition, that he who accepts a benefit under an instru- ment must adopt the whole of it, conforming with all its provisions, and renouncing every right inconsistent with them. See Walpole v. Con- way, Barnard, Ch. Rep. 159; Kirkham v. Smith, 1 Ves. 258; Macna- mara v. Jones, 1 Bro. C. C. 411 ; Frank v. Standish, 1 Bro. C. C. 588, n. ; Blake v. Bunhury, 4 Bro. C. C. 21 : Swan v. Holmes, 19 Beav. 471; Wintour v. Clifton, *21 Beav. 441, 8 De G. Mac N. &■ G. 641 ; '- ^ Crosby v. Lord Ashtown, 10 Ir. Ch. Rep. 219; SeazleY. Fitz- maurice,lS Ir. Ch. Rep. 481, and Dillon y. Parker, 1 Swanst. 359; and Oretton v. Haward, 1 Swanst. 409, and Mr. Swanston's learned and elab- orate notes to those cases. To illustrate the doctrine of election, suppose A., by will or deed, gives to B. property belonging to C, and by the same instrument gives other property belonging to himself to , a Court of equity will hold C. to be entitled to the gift made to him by A. only, upon the implied condition of his conforming with all the pro- visions of the instrument, by renouncing the right to his own property in favour of B. ; he must, consequently, make his choice, or, as it is technically termed, he is put to his election, to take either under or against the instrument ; if C. elects to take under, and consequently to conform with all the provisions of, the instrument, no difficulty arises, as B. will take C.'s property, and C. will take the property given to him by A. ; but if C. elects to take against the instrument, that is to say, retains his own property and at the same time sets up a claim to the property given to him by A., an important question arises whether he thereupon incurs a forfeiture of the whole of the benefit conferred upon him by the instrument, or is merely bound to make compensation out 1 See the decree, 1 Swanst, 447 ; Eeg, Lib. B., 1735, fol. 205. NOTS V. MORDAUNT. — STEEATFIELD V. STREATFIELD. 511 of it to the person who is disappointed by his election. There are many dicta in favour of the doctrine of forfeiture. See Cowper v. Scott, 3 P. Wms. 124 ; Cookes v. Hellier, 1 Ves. 235 ; Morris v. Burroughs, 1 Atk. 404; Pugh v. Smith, 2 Atk. 43; Wilson v. Mount, 3 Ves. 194; Wilson V. Townsend, 2 Ves. jun. 697 ; Broome v. Monck, 10 Ves. 609 ; Thellusson v. Woodford, 13 Ves. 220 ; Villareal v. Lord Galway, 1 Bro. C. C. 292, n. ; Oreen v. Green, 2 Mer. 86 ; and see the decision of Lord Langdale, M. R., in Greenwood v. Penny, 12 Beav. 406 ; and the late Mr. Jacob, in a note to 1 Roper on Husband and Wife, 566, sup- ports the doctrine of forfeiture. The same view is also taken by Sir Edward Sugden. See 2 Sugd. Pow. 145, Tth edit. The principal case of Streatfield v. Streatfield, is a distinct authority for the doctrine of compensation. See also Webster v. Milford,'i Eq. Ca. Ab. 863,niarg.; Bar V. Bor, 3 Bro. P. C. Toml. Ed. 167 ; Ardesoife v. Bennet, 2 Dick. 465 ; Lewis v. King, 2 Bro. C. C. 600 ; Freke v. Barrington, 3 Bro. 0. C. 284 ; Whistler v. Webster, 2 Ves. jun. 372 ; Ward v. Baugh, 4 Ves. 62t ; Lady Oaven v. Pulteney, 2 Ves. jun. 560; Blake v. Bunbury, 1 Ves. jun. 523; Welby v. Welby, 2 V. & B. 190, 191 ; and Lord Eldon, in Dashwood v. Peyton, 18 Ves. 49 ; Tibbits v. Tibbits, Jac. 317 : Lord Rancliffe v. Parkyns, 6 Dow. 179; and Ker v. Wauchope, *1 [-j^oj^on Bligh. 25, clearly recognises the principle of compensation, as '- applied to the doctrine of election. " In our Courts," observes his Lordship, in the latter case, " we have engrafted upon this primary doctrine of election, the equity, as it may be termed, of compensation. Suppose a testator gives his estate to A., and directs that the estate of A., or any part of it, should be given to B. If the devisee will not com- ply with the provision of the will, the Courts of equity hold that another condition is to be implied as arising out of the will and the conduct of the devisee ; that inasmuch as the testator meant that his heir-at-law should not take his estate which he gives A., in consideration of his giving his estate to B. ; if A. refuses to comply with the will, B. shall be compensated by taking the property, or the value of the property, which the testator meant for him, out of the estate devised, thouoh he cannot iiave it out of the estate intended for him." Nearly all these authorities are stated in Mr. Swanston's learned note to Gretton v. Haward, 1 Swanst. 433, and in his opinion they establish two proposi- tions : " 1st. That, in the event of election to take against the instru- ment, Courts of equity assume jurisdiction to sequester the bemflt in- tended for the refractory donee, in order to secure compensation to those whom his election disappoints. 2nd. That the surplus after compensa- tion does not devolve as undisposed of, but is restored to the donee, the purpose being satisfied for which alone the Court controlled his legal right." See also Padbury v. Clark, 2 Mac. & G. 298 ; Greenwood 512 ELECTION. V. Penny, 12 Beav. 403 ; Howells v. Jenkins, 1 De G. Jo. & Sm. 617 ; Grissell v. Swinhoe, T L. R. Eq. 291. As tlie doctrine of election depends then upon compensation, it fol- lows that it will not be applicable unless there be a fund from which compensation can be made. Thus it was held, by Lord Loughborough, C, in Bristowe v. Warde, 2 Ves. jun. 336, that where, under a power to appoint to children, the father made an appointment improperly, any child entitled in default of appointment might set it aside, although a specific share was appointed to him. " The doctrine of election," said his Lordship, " never can be applied, but where, if an election is made contrary to the will, the interest that would pass by the will can be laid hold of, to compensate for what is taken away ; therefore in all cases there must be some free disposable propertj^ given to the person, which can be made a compensation for what the testator takes away. That cannot apply to this case, where no part of his property is comprised in the will but that which he had power to distribute." So in Box v. Bar- |-^„ . .-, rett, 3 L. R. Eq. 244, under a settlement *the four daughters of a testator took equal shares subject to his life interest. The testator, by his will, recited that under the settlement his two daughters, Ellen and Emily, would become entitled to certain hereditaments, and that in making his will he had taken that into consideration, and had not devised them so large a share under his will, as he would have done had they not been so entitled. He then devised to his daughters, Ellen and Emily, certain estates, and to his other daughters, Edith and Eliza, certain other estates of much larger value. The will did not purport to dispose of or affect the settled estates. It was held by Lord Romilly, M. R., that as the will did not purport to make any disposi- tion of the settled estates, and was only made under a mistaken impres- sion, Edith and Eliza were not put to their election. "I am of opinion," said his Lordship, "that no case of election arises here. There must be some disposition of property which the testator had no right to dispose of to make it one. I assent to the observations that have been cited to me from the judgments in the cases of Langslow v. Langslow (21 Beav. 552), and Blacket v. Lamb (14 Beav. 482), which cases were decided by myself. In the present case there is nothing more than a recital of an intention under a belief which was erroneous, and there- upon the testator gives certain property in a particular way. If I were to hold that a case of election arises here, the most serious and yet strange results would follow : for suppose a man recited in his will that his nephew would have a large fortune from his father, and that, there- fore, he left all his property to his other nephew, and that recital turned out to be incorrect, would any question of election arise upon that, because the supposed intention of the .testator was that the prop- erty should be divided equally ? The most that can be said of the re- cital in the case before me now is, that it is an erroneous one ; but, be- NOYS V. MORDAUNT. — STRBATFIELD V. STREATEIELD. 613 cause the testator has made a mistake, you cannot afterwards remodel the will and make it that which you suppose he intended, and as he would have drawn it if he had known the incorrectness of his supposi- tion." See also Banks v. Banks, 11 Beav. 352; In re Fowler's Trust, 21 Beav. 362, Lead. Cas. R. P. 352, 2nd ed. It seems to he doubtful whether the doctrine of election applies to grants from the Crown, for the Crown is always in existence and can always be applied to, to set right the grant : per Sir T. Plumer, M. R., 2 J. & W. 345. Where, however, two persons, A. and B. joined in a petition to the Crown, representing an estate to have escheated, and pro- cured a grant of it, to be made to them, *it was held by Sir T. p^qjcn Plumer, M. R., that the assignees of A. could not afterwards set up a claim to one part under a prior title in himself, while taking the benefit of the grant as to the rest; Gummings v. Forrester, 2 J. & W. 334. The doctrine of election is applicable to deeds as well as to wills (Llevellyn v. Mackworth, Barnard Ch. Rep. 445 ; Bigland v. Hud- dleston, 3 Bro. C. C. 286, n. ; Moore v. Butler, 2 S. & L. 266 ; Bir- mingham v. Kirwan, 2 S. & L. 450; Green v. Green, 2 Mer. 86; Bac'jn V. Cosby, 4 De G. & Sm. 261 ; Gumming v. Forrester, 2 J. & W. 345 ; Anderson v. Abbott, 23 Beav. 451 ; Mosley v. Ward, 29 Beav. 401) : although by the civil law, from which it appears to have been borrowed by our courts of equity, it was confined to wills. See Mr. Swanston's note to Billon v. Parker, 1 Swanst. 394. And notwith- standing the opinion of Lord Hardwicke, in Bor v. Bor, 3 Bro. P. C. 178, n., Toml. Ed., and the decision in Stewart v. Henry, Vern. & Scriv. 49, the doctrine of election is applicable to interests remote, contingent, or of small value, as well as to those which are immediate or of great value : Webb v. Earl of Shaftesbury, 1 Ves. 480 ; Greaves v. Forman, cited 3 Yes. 67 ; Highway v. Banner, 1 Bro. C. C. 584 ; Wil- son V. Townsend, 2 Yes. jun. 691 ; Morgan v. Morgan, 4 Jr. Ch. Rep. 606 ; Sadlier v. Butler, 1 I. R. Eq. 415 ; Henry v. Henry, 6 I. R. Eq. 286. In order to raise a ease of election, there must appear in the will or instrument itself a clear intention, on the part of the author of it, to dispose of that which is not his own (Forrester v. Cotton, 1 Eden, 531 Judd V. Pratt, 13 Yes. 168 ; 15 Yes. 390 ; Dashwood v. Peyton, 18 Yes, 21 ; Blake v Bunbury, 4 Bro. C. C. 21 ; S. C, 1 Yes. jun. 514 ; Ban- cliffe V. Lady Parkyns, 6 Dow. 149, 119 ; Dillon v. Parker, 1 Swanst 359 ; S. C, Wils. 253 ; Jac. 505 ; 1 Bligh, N. S. 325 ; 1 C. & F. 303 Sugd. Prop. 450 ; Jervoise v. Jervoise, 11 Beav. 566 ; Padbury v, Glark, 2 Mac. & Q. 298 ; Lee v. Egremont, 5 De G. & Sm. 348 ; Win- tour V. Clifton, 21 Beav. 441^ 8 De G. Mac. & G. 641 ; and Stephens V. Stephens, 3 Drew. 697 ; 1 De G. & Jo. 62 ; Poole v. aiding, 10 W. R. (Y. C. K.) 331 (L. J.) 591 ; Fox v. Charlton, 10 W. R. (Y. C. K.) VOL. I. — 33 514 ELECTION. 506; Thornton v. Thornton, 11 Ir. Ch. Rep. Hi; Box v. Barrett, 3 L. R. Eq. 244 ; Sadlier v. Butler, 1 I. R. Eq. 415) : and it is immate- rial whether he knew the property or not to be his own, or by mistake conceived it to be his own ; for, in either case, if the intention to dis- pose of it appears clearly, his disposition will be suflScient to raise a case of election; Whistler v. Webster, 2 Ves. jun. 310; Thellusson y. Woodford, 13 Ves. 221; Welby v. Welby, 2 V. & B. 199, overruling *Oull V. Showell, Amb. 121; Whitley v. Whitley, 31 Beav.lY3; L ^^^^ Goutts V. Ackworth, 9 L. R. Eq. 519. The difficulty of sustaining a case of erection is always much greater where the testator has a partial interest in the property dealt with, than where he purports to devise an estate in which he has no interest at all (Lord Bancliffe v. Lady Parkyns, 6 Dow. 185). Where the testator has some interest, the Court will lean as far as possible to a construction which would make him deal only with that to which he is entitled : Maddison v. Chapman, 1 J. & H. 4*10 ; Be BidwelVs Settlement, 11 W. R. (V. C. K.), 161. Where, however, a testator entitled only to part of an estate, uses words in devising it which show clearly that he intended to pass the entirety, if the owner of the other part takes other benefits by the will, he will be put to his election : Padbury v. Clark, 2 Mac. & Gr. 298 ; Wintour v. Clifton, 21 Beav. 447 ; 8 De Gr. Mac & G. 644; Grosvenor V. Durston, 25 Beav. 97 ; Usticke v. Peters, 4 K. & J. 43Y ; Fitzsimons V. Fitzsimons, 28 Beav. 41*7 ; Howells v. Jenkins, 2 J. & H. "706 ; 1 De G. Jo. & Sm. 611 ; Miller v. Thurgood, 33 Beav. 496 ; Wilkinson v. Bent, 6 L. R. Ch. App. 339 ; but see Chave v. Chave, 2 J. & H. 713, n. A mere general devise will only comprehend property of which the devisor is owner, and although at one time a difierent oi)inion pre- vailed, it is now clearly settled that parol evidence, dehors the will, is not admissible for the purpose of showing that a testator considering property to be his own, which did not actually belong to him, intended to comprise it in a general devise or bequest. See Pulteney v. Lord Darlington, referred to in 2 Ves. jun. 544 ; 3 Ves. 384, 521,529 ; 6 Ves. 314, 322, 391, 399, 402, in which case rent-rolls and steward's accounts, agreements of solicitors, cases and opinions of counsel, and all sorts of papers, were admitted to be read, to prove that the testator dealt with property of which he was tenant in tail, as absolute owner, and that he intended to comprise it in a general devise ; so that the heir in tail, who took other benefits under the will, was compelled to elect, although the testator had large real estates to satisfy the words of the devise. See also. Finch v. Finch, 4 Bro. C. C. 38 ; S. C, 1 Ves. jun. 534 ; Einchcliffe v. Hinchcliffe, 3 Ves. 516 ; Butter v. Maclean, 4 Ves. 531 ; Pole V. Lord Somers, 6 Ves. 309 ; Druce v. Denison, 6 Ves. 385. Lord Commissioner Eyre, however, in Blake v. Bunbury, 1 Ves. jun. 523, NOYS V. MORDAUNT. — STREATFIELD V. STREATFIELD. 515 Bays, " that the intent of the testator to dispose of that which is not his, ought to appear upon the will ;" and in Stratton v. Best, 1 Ves. jun. 285, *where a testator suffered a recovery of the whole of a manor, though he was only entitled to part of it, and after^ '- ^ wards devised in general words all his real and personal estate to trus- tees, Lord Thurlow refused to admit evidence to sliow that the testator supposed himself entitled to the whole manor. " I admit,'' observed his Lordship, " you have proved, that in 1*764, when the recovery was suffered, he took himself to be master of the whole. I have no doubt hut that, if he had been asked, when he made his will, whether he did not mean the whole, he would have said yes ; and if desired to put in a description of it he would have done so : that I believe, upon the evidence you have brought. But to do this I must say that evidence, dehors the will, of the testator's opinion at any time, may be produced : and I do not think that is the law of the Court. All the argument in Noys V. Mordaunt, and the whole suite of cases upon this subject, have turned upon the expressions of the will. If I was to receive evidence of the testator's fancy, I should introduce a very desperate rule of property in this Court." Lord Rosslyn, in the case of Butter v. Mac- lean, 4 Ves. 53*7, expressed -himself dissatisfied with Pulteney v. Dar- lington, as did also Lord Eldon, in Pole v. Somers, 6 Ves. 322 ; and in Bruce v. Denison, 6 Ves. 402, where he observed that he agreed with Lord Rosslyn, and that he could not see upon what principle the evi- dence was admitted in that case. See also Doe v. Chichenter, 4 Dow. 76, 89, 90, and the case of Glementson v. Gandy, 1 Kee. 309, where pa,rol evidence was tendered for the purpose of showing that the testa- trix intended to pass, under a general bequest, certain property in ■which she had only a life interest, supposing it to be her own abso- lutely, so as to put a legatee who had an interest in the property to his election. However, Lord Langdale, M. R., refused to admit the evi- dence. "I am of opinion," observed his Lordship, "that this evidence cannot be admitted. It is tendered for the purpose of showing that the testatrix bequeathed property as her own which did not belong to her, and that she intended to leave a considerable residue for charitable purposes, which by reason of that mistake, turns out to be much less than she intended ; and it is argued that this raises a case of election. The intention to dispose must in all cases appear by the will alone. In cases which require it, the Court may look at external circum- stances, and consequently, receive evidence of such circumstances for the purpose of ascertaining the meaning of the terms used by the tes- tator. But parol evidence is not to be resorted to except for the pur- pose of proving facts which make intelligible something *in the will which, without the aid of extrinsic evidence, cannot be '^ -* understood." See also Blonmart v. Player, 2 S. & S. 59'7; Drummer V. Pitcher, 2 My. & K. 262 ; Crahh v. Grabh, 1 My. & K. 511; 5 Sim. 516 ELECTION. 85 ; Smith v. Lyne, 2 Y. & C. C. C. 345 ; Allen v. Anderson, 5 Hare, 163 ; Seaman v. Woods, 24 Beav. 3'I2. But a testator may in his will itself show an intention under a general devise .to dispose of property which is not absolutely his own, for in- stance of which he is only tenant in tail (even when he has other prop- erty which might satisfy the words of the devise), so as to put the heir in tail to his election between the estate and benefits conferred upon him by the will. See Honywood v. Forster, 30 Beav. 14. There a tes- tator had freeholds in fee, and was tenant in tail of copyholds. They were intermixed ; part of the copyholds were in his own occupation, and part, with parts of the freeholds, in the occupation of tenants upon leases at one rent. By his will he devised " all his real estates " to the defendants, and gave all the lands occupied by him to his wife for life, and confirmed the tenants in their occupations for twenty-one years. He likewise gave benefits to the heir in tail of the copyholds. It was held, by Sir John Romilly, M. E.., that the heir must be put to his elec- tion. " If," said his Honor, " a testator says, ' I give all the property I have in the world to A. B.,' and he leaves a large legacy to his heir in tail, that will not raise a case of election against such heir, because the testator only gives what he has. It occurred to me at first that such was the character of the present will ; but on the facts of the case being brought to my attention, it became plain that such was not the case. . . . . It was a jiist observation made to me, that the scope of the will is to dispose of two sorts of properties — the property he occupied him- self, and the property which was occupied by his tenants. The prop- erty occupied by himself he left to his wife for her life, and as to the property occupied hj his tenants, he directed that his executors should confirm their occupation by leases for a period of twenty-one years. The property occupied by himself included some of the copyholds in ques- tion ; and it is therefore clear that he intended to give them to his wife for life ; the land in the occupation of his tenants included the remainder of the copyholds, and he directs the executors to confirm to them for twenty-one years, the leases of the property they held, which are part of the copyholds in question. I think that in this state of circum- stances, poupled with the fact of the nature and holding of the property, r*!^i.ql ^^^^^ *^ ^''^ intention shown on the face of the will to dispose *of these copyholds away from the heir in tail. I am of opinion, therefore, that the plaintifi" must elect eitlier to take the copyholds in question, and give up the benefits bequeathed to him by the will, or to take under the will and give up the copyholds.'' The rule of election, the subject of this note, which depends, as be- fore observed, upon an implied condition, will not be excluded by the parties being expressly put to their election, as between the benefits conferred upon them, and sums due to them from the person confer- ring such benefits. See Wilkinson v. Dent, 6 L. R. Ch. App. 339. NOTS V. MORDAUNT. — STREATFIELD V. STREATPIELD. 517 There a testatrix devised " all and singular the estate and mines of Aroa," to trustees in trust for sale, and gave to T. Dent 10,000Z., whicli was to tie taken in full satisfaction of any sums which she might owe him at her decease, and to W. Dent 3000L, which she declared was to be taken in satisfaction of any rent-charge out of a certain part of her real estate. Her will contained the usual devise of trust and mortgage estates. She was in possession of the entirety of the Aroa estate, but was owner only of one moiety, being in possession of the other moiety by virtue of a mortgage, the money due upon which was subject to trusts, under which T. Dent and W. Dent on her death became entitled, each to one-fifth. It was held by the Lords Justices, affirming the de- cision of Lord Romilly, M. R., that T. Dent and W. Dent were put to their election between the benefits they took under the will, and their shares in the mortgage money. " The question," said Lord Justice James, " is, whether there is testamentary bounty to persons whose estates and rights are, under another part of the will, interfered with. It appears to me clear, that this question must be answered in the affirmative, though, before the amount of the bounty can be ascertained, the amount of the claims which the legatees had against the testatrix must be ascertained." But the ordinary doctrine of election may be excluded by an apparent expression of intention by a testator that only one of the gifts, to an object of his bounty, is conditional on his giving np what the testator purports to tttke away from him. For instance, if a testator had an eldest son, owner of a bit of property, and it would be convenient that this bit of property should go along with a property which the testator is devising to his second son. So, the testator devises this bit of prop- erty to the second son ; and amongst other gifts to his eldest son, he gives him a piece of property which he states in his will to be in lieu of his bit of property which the testator purported to take away from him. In such case, the eldest son would merely *be put to his choice r^orQ-i between those two bits of property : East v. Cooh, 2 Ves. 30, as explained by Lord Justice James, in Wilkinson v. Bent, 6 L. R. Ch. App. 341. The question has been raised whether, where a testator makes two or aore separate devises or bequests, the devisee is bound to elect to take all or none of the gifts, or whether he may accept what is beneficial and reject what is burdensome. These cases, though at first sight similar, are in reality different from cases of election, properly so called, which, as we have before seen, -arise where a person disposes of that which is not Ms own (ante, p. 342), and confers upon the real owner of the prop- erty other benefits, in which case it is at once implied independently of any intention expressed upon the face of the instrument, that the party upon whom such benefits are conferred must elect between his own property and such benefits. But where the gifts, whether beneficial or 518 ELECTION. onerous, are all the property of the testator, the devisee may take what is beneficial and reject what is onerous (Andrew v. Trinity Hall, 9 Ves. 525 ; Moffett v. Bates, 3 Sm. & G-. 468 ; Warren v. Rudall, 1 J. & H. 1). But where it appears upon the will that it was the intention of the testator to make the acceptance of the burden a condition of the benefit, the result will be difierent : Talbot v. Lord Radnor, 3 My. & K. 252 ; Warren v. Rudall, 1 J. & H. 13 ; and see Long v. Kent, 13 W. R. (V. C. S.) 961. Although, under the old law, a devise to the heir was in a certain sense inoperative, as he took by descent as heir, and not by purchase as devisee, it has been held, ever since the decision of Noys v. Mordaunt, to be a sufficient gift to him of the testator's property to raise a case of election, should the testator devise or bequeath to another, property belonging to the heir. " That an heir," observes Sir W. Grant, M. K., " to whom an estate is devised in fee, may be put to an election, although, by the rule of law, a devise in fee to an heir is inoperative, I should have thought perfectly clear, independently of Lord Cowper's decision in the case of Gilbert ; for if the will is in other resjiects so framed as to raise a case of election, then not only is the estate given to the heir under an implied condition, that he shall conform the whole of the will, but in contemplation of equity, the testator means, in case the condi- tion shall not be complied with, to give the disappointed devisees out of the estate, over which he had a power, a benefit correspondent to that of which they are deprived by such non-compliance. So that the devise is read as if it were to the heir absolu|;ely, if he confirm the will ; if not, then in trust for the disappointed devisees as to so much of the r*Rfin estate, given to him, as * shall be equal in value to the estates ■- -' intended for them:" Welby v. Welhy, 2 V. & B. 190; Anon., Gilb. 15; Thellusson v. Woodford, 13 Ves. 209; S. C, 1 Dow. 249, nom. Rendlesham v. Woodford ; a fortori will the heir now be put to his election, since, by a recent statute, where lands are devised by the will of a testator dying after the 31st of December, 1833, to the heir, he will take as devisee by purchase, and not by descent ; see 3 & 4 Will. 4, c. 106, s. 3; and Schroder v. Schroder, Kay, 5Y8. Where an express appointment is made to a stranger to the power, whiQh is therefore void, and a benefit is conferred by the same instru- ment upon a person entitled in default of appointment, the latter will be put to his election. Thus, " where a man having a power to appoint to A. a fund, which in default of appointment is given to B., exercises the power in favour of C, and gives other bengfits to B., although the execution is merely void, yet if B. will accept the gifts to him, he must convey the estate to C. according to the appointment," Sug. Pow. 578, 8th ed. ; Whistler v. Webster, 2 Ves. jun. 367 ; Reid v. Reid, 25 Beav. 469 ; Ex parte Barnard, 6 Ir. Ch. Rep. 133 ; Tomkyns v. Blane, 28 Beav. 422. " So where a person has power to appoint to two, and he NOYS V. MOEDAUNT. — STREATFIBLD V. STRBATFIBLD. 519 appoints to one only, and gives a legacj' to the other, that is a case of election:" Sug. Pow. 589, 8th ed. ; Wollen v. Tanner, 6 Ves. 218; Vane v. Lord Dungannon, 2 S. & L. 118. So where a person having a power to appoint, delegates the power (which he has really no right to do) to another, and by the same instrument confers benefits upon the objects of the power, they cannot retain the benefits given to them by the will and also claim the property against the execution of the power so improperly delegated : Ingram v. Ingram, cited 1 Ves. 259. Merely precatory words, requesting appointees, objects of the power, to leave the fund appointed to others, not objects of the power, will not raise a case of election ; Blachett v. Lamb, 14 Beav. 482 ; Kampf v. Jones, 2 Keen, 156 ; Carver v. Bowles, 2 Russ. & My. 301. Where a person appoints simply to objects of the power, and gives them property of his own, subsequently directing them to settle the property so appointed on persons not objects of the power, such direc- tion will not raise a case of election (King v. King, 15 Ir. Ch. Rep. 419, overruling Moriarty v. Martin, 3 Ir. Ch. Rep. 26). Secus where there is a clause of forfeiture of the legacies on non-compliance with such direction (lb.). And it has been recently decided that where there is an absolute appointment by will in favour of a proper object of the power, and that appointment is ^followed by attempts to modify the interest so r^^qco-i appointed in a manner which the law will not allow, the will must be read as if all the passages in which such attempts are made were swept out of it, not only so far as they attempt to regulate the quantum of interest to be enjoyed by the appointee in the settled prop- erty, but also so far as they might otherwise have been relied upon as raising a case of election : Woolridge v. Woolridge, 1 Johns. 63. See, also, Churchill v. Churchill, 5 L. R. Eq. 44. And in no instance has a case of election been raised where a testa- tor gave no property absolutely his own to an object of the power out of which, in the event of his not acquiescing in an appointment by the donee to a person not an object of the power, the latter could be compensated. In re Fowler's Trust, 21 Beav. 362. Neither will the non-execution of a power upon an erroneous impression stated in the will, that by its non-execution one person who is a legatee will divide the fund equally with another: Langslow v. Langslow, 21 Beav. 552. But where the donee of a power by the same instruments appoints to a stranger, and confers benefits out of property absolutely his own upon an object of the power, the latter will be put to his election, and if he takes the benefits conferred upon him, he must comply with the directions, or if he declines to do so he must give ti[i the benefits so far as may be necessary for compensating the person disappointed by his election. See Blacket v. Lamb, 14 Beav. 482. In a recent case, A. had power to appoint by will a fund to any one 520 ELECTION. or more of his children. He had under a distinct instrument power to appoint another fund amongst his children, but not exclusively to any one of them, and they were to take equally in default of appointment. He had five children. By his will he exercised the first power in favour of S., one of his children, and the second in favour of two others of his children. The second power was accordingly badly exercised, and S. took a share in default of appointment. It was held by Sir W. Page Wood, V. C, that no case of election was raised against S. : Be ApUn's Trust, 13 W. R. (V. C. W.) 1062. So where an appointment was made of the interest of a fund to a person for life, irrevocably, and after his decease the fund was appointed to others, with power to the appointor, by deed or will, to revoke the appointments subsequent to the life interest, and the appointor after- wards, supposing he had complete dominion over the fund, revoked all the appointments before made, giving the person entitled to the interest of the fund for life part of it absolutely, and the remainder of the _^ _ -, *fund to others, the person to whom, under the first appoint- ^ ment, a life interest was given in the whole fund, was com- pelled to elect between the life interest in the whole fund, and his interest in part of the fund given to him absolutely, under the second appointment. Coutts v. Acworth, 9 L. R. Bq. 519. It seems that when there is an attempt to create a power in violation of the rules of law, as for instance, the rule against perpetuities, the . Court will not aid such an attempt, by the application of the doctrine of election: Wollaston v. King, 8 L. R. Eq. 165, 1'75. The rule as to election is to be applied, as between a gift under a will, and a claim dehors the will, and adverse to it, and is not to be ap- plied as between one clause in a will and another clause in the same will. See Wollaston v. King, 8 L. R. Eq. 165. There, Mrs. King, hav- ing under her marriage settlement, power to appoint a fund in favour of the children of the marriage, by her will, in execution of the power, appointed a portion of the fund to her son, J. B. King, for life, with re- mainder to such persons as he should by will appoint. There was also a general residuary appointment of the settled fund (subject to all other appointments made thereof), to Mrs. King's three daughters, to whom benefits out of Mrs. King's own property were also given by the will. The appointment in favour of J. B. King's appointees being void for remoteness, the property comprised therein, upon the death of J. E. King, went to the three daughters of Mrs. King under the residuary appointment in her will. It was held by Sir W. M. James, V. C, that the daughters were not put to their election between the benefits which they took under the will in the testatrix's own property, and the settled property which they took under the residuary appointment in the will. " The ordinary principle," said his Honor, '-is clear, that if a testator gives property, by design or by mistake, which is not his to give, and NOTS V. MORDAUNT. — STREATFIELD V. STRBATFIELD. 521 gives at the same time to the real owner of it other property, such real owner cannot take both. And the principle has been applied where the first gift is made, purporting to be in execution of a power ; so that, if under a power to appoint to children, the donee of the power appoints to grandchildren, which is bad, and the children who are entitled to claim by reason of the badness of the appointment, also take under the will other property, the grandchildren are entitled to put them to an election. But to this rule, so far as regards appointments, a notable exception is taken ; viz., that when there is an appointment to an object of the power, with directions that the same shall be *settled, or upon any trust, or subject to any condition, then the appoint- '- -' ment is held to be a valid appointment, and the superadded direction, trust, or condition is void, and not only void, but inoperative to raise any case of election. " This rule has not been followed in the Irish ease of Moriarty v. Martin (3 Ir. Ch. Rep. 26), which is said to have received the approval of Lord St. Leonards. Notwithstanding that case, and that approval, I feel bound by the current English authorities. I have endeavoured to extract from these cases a principle which I can apply to the decision of the case before me. The rule laid down by the Master of the Rolls in Whistler v. Wehater (2 Russ. & My. 301) is, in general terms, that no man shall claim any benefit under a will without conforming, so far as he is able, and giving effect to everything contained in it, whereby any disposition is made, showing an intention that such a thing shall take place." " This rule, expressed in these terms, was certainly not applied in the case of Carver v. Bowles (2 Russ. & My. 301), and the cases which followed it. There, it was clear, that certain persons were intended to take benefits under the will, and other persons were allowed to take other benefits, without conforming to, and giving effect to, the first dis- positions and, in fact, after defeating them. But why 1 The only intelligible principle which I can find is, that it was held, that the failure of the first dispositions, so far as they failed, did, under the will itself, enure for the benefit of the legatees : that the legatees were allowed to retain both benefits, because they took both as legatees under the will itself, without calling in aid any other instrument or adverse title. It results in this, that the rule as to election is to be applied as between a gift under a will, and a claim dehors the will, and adverse to it, and is not to be applied as between one clause in a will, and another clause in the same will." See Wallinger v. Wallinger, 9 L. R. Eq. 301. No case of election will be raised where there is a want of capacity to devise real estate by reason of infancy. Thus, under the old law, where an infant, whose will was valid as to personal, but invalid as to real estate, gave a legacy to his heir-at-law, and devised real estate to 522 ELECTION. another person, the heir-at-law would not have been obliged to elect be- tween the legacy and the real estate, which descended to him in conse- quence of the invalidity of the devise ; he might take both : Hearle v. Oreenbank, 3 Atk. 695, US ; 1 Ves. 298. Nor will a case of election be raised if there is a want of capacity to bequeath arising from coverture. Thus, where a feme covert made _ *a valid appointment by will to her husband, under a power, '- -■ and also bequeathed to another personal estate, to which the power did not extend, the husband was not put to his electionj but was held to be entitled to the benefit conferred upon him by the power, and also to the property bequeathed by his wife, to which he was entitled jure mariti : Bich v. Gockell, 9 Ves. 369. See also Blaiklock v. Grindle, 1 L. R. Eq. 215. With regard to infants, however, it must be remembered, that the "Wills Act, 1 Vict. c. 26, s. Y, renders them incapable of making a will even of personalty. Previous to the Wills Act, 1 Vict. c. 26, where a testator by a will, not properly attested for the devise of freeholds, but sufficient to pass personal estate, devised freehold estates away from his heir, and gave him a legacy, the question has arisen, whether the heir-at-law was not obliged to elect between the freehold estate which descended to him in consequence of the devise being inoperative, and the legacy ; it is clearly settled that he would not be obliged to elect (Sheddon v. Goodrich, 8 Ves. 481 ; Gardiner v. Fell, 1 J. & W. 22 ; Wilson v. Wilson, 1 De G. & Sm. 152 ; and see Middlehrook v. Bromley, 11 W. R. (V. 0. K.) Y12) ; unless the legacy was given to him with an express condition, that if he disputed or did not comply with the whole of the will, he should forfeit all benefit under it : Boughton v. Boughton, 2 Ves. 12. " Lord Kenyon said, the distinction was settled, and not to be unsettled, that if a pecu- niary legacy was bequeathed by an unattested will, under an express condition to give up a real estate by that unattested will attempted to be disposed of, such condition being expressed in the body of the will, it was a case of election, as he could not take the legacy without comply- ing with the express condition. But Lord Kenyon also took it to be settled, as Lord Hardwicke has adjudged, that if there was nothing in the will but a mere devise of real estate, the will was not capable of being read as to that part ; and unless, according to an express condi- tion, the legacy was given, so that the testator said expressly the lega- tee should not take unless that condition were complied with, it was not a case of election. The reason of that distinction, if it were res In- tegra, is questionable." Per Lord Eldon, in Sheddon v. Goodrich, 8 Ves. 496. See also Brodie v. Brady, 2 V. & B. 130. These questions will not arise under wills coming within the Wills Act, because if they are sufficiently attested for the bequest of a per- sonal legacy, they will also pass freehold estates. NOYS V. MOKDAUNT. — STREATPIELD V. STREATPIELD. 523 Previous to the Wills Act a testator could not devise after-acquirec^ lands, for although by his will he devised lands of which he should be seised at the time of *his decease, they would descend to his po.„p.„-, heir: Bunker v. Coke, 1 Bro. P. C. 199; S. C, 1 Salk. 234; L ^^^^^ EoWs Rep. 248 ; Fitzger. 228 : the reason being' that the Statute of Wills, 32 Hen. 8, gives the power of disposition by will of lands only to persons having lands, but does not give power to persons not having lands, to make any disposition of such as they shall have. This act also puts an end (as far as regards wills coming within its oper- ation) to questions which sometimes arose upon the testator attempting to dispose of real estate to which he might become entitled subsequent to the making of his will. When therefore a testator devised after- acquired lands away from his heir, he nevertheless took such lands by descent, subject however to the application of the doctrine of election ; for the rule in such cases was, that if the testator showed a clear inten- tion of disposing of after-acquired estates, the heir was obliged to elect between the after-acquired estates which would descend to him, and any benefits given him by the will (Thellusson v. Woodford, 13 Ves. 209 ; S. C, Eendlesham v. Woodford, 1 Dow. 249 ; Churchman v. Ireland, 4 Sim. 520; 1 Russ. & My. 250; Greenwood v. Penny, 12 Beav. 403; Schroder v. Schroder, Kay, 518, S. C, on appeal, 24 L. J. Oh. N. S. 510 ; Hance v. Truwhitt, 2 J. & H. 216) ; but not if the intention of the testator to dispose of the after-acquired estates was equivocal : Back v. Kelt, Jac. 534. But here, again, the law has been altered by 1 Vict. c. 26, s. 24, which enacts, " That every will shall be construed with refer- ence to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will." Previous to 55 Geo. 3, c. 192 (which rendered a surrender of copy- holds to the use of wills unnecessary for the future), it was held, that the heir to whom copyholds descended, in consequence of their not having been surrendered to the use of a will, was obliged to elect be- tween the copyholds and any benefit he may have taken under the will. See Unett v. Wilkes, Amb. 430 ; 2 Eden, 187 ; Rumhold v. Rumbold, 8 Ves. 65 ; Pettiward v. Prescott, 1 Ves. 541 ; but in Judd v. Pratt, 13 Ves. 168, 15 Ves. 390, the heir was not compelled to elect, because the testator, having freeholds as well as copyholds, was held not to have sufficiently indicated his intention to pass the copyholds by a mere general devise of all his real estate. The heir of heritable property in Scotland, becoming entitled to it in consequence of the will, by which it is devised to another, not being conformable to the solemnities required by the law of Scotland, and taking also under the same will real or personal property in this country, will be compelled to elect between the heritable property which has de- scended to him as heir, and the benefits given to him by the will : Bro- 524 ELECTION. l-^of.^-, die V. Barry, 2 *V. & B. 121 ; Orrell v. Orrell, 6 L. R. Ch. l- ^ App. 302 ; Dewar v. Maitland, 2 L. R. Eq. 834, as to lands in St. Kitt's; M'Gall v. M'Gall, Dru. Ca. to Sugd. 283; secus, if it does not appear clearly that the testator intended to pass his Scotch estates : Johnson v. Telfourd, 1 Russ. & My. 244 ; Allen v. Anderson, 5 Hare, 163 , Maxwell r. Maxwell, 16 Beav. 106 ; 2 De G. Mac. & Q. 105 ; Lamb V. Lamb, 5 W. R. (Y. C. K.) 120; Maxwell v. Hyslop, 4 L. R. Bq. 401. A widow may at law be put to her election by express words between her dower and a gift conferred upon her (Gosling v. Warburton, Cro. Eliz. 128 ; Lacy v. Anderso7i, Choice Cases in Chancery, 155 ; Boynton V. Boynton, 1 Bro. C. C. 445 ; see Dyhe v. Rendall, 2 De G. Mac. & G. 209 ; Nottley v. Palmer, 2 Drew. 93), in equity she may be put to her election between dower, and a gift conferred upon her, by manifest implication, demonstrating the intention of the donor to exclude her from her legal right to dower. " If," observes Lord Redesdale, " there be anything ambiguous or doubtful, — if the Court cannot say that it was clearly the intention to exclude, — then the averment that the gift was made in lieu of dower cannot be supported : and, to make a case of election, that is necessary ; for a gift is to be taken as pure, until a condition appear. . . . The only question made in all the cases is, whether an intention, not expressed by apt words, could be collected from the terms of the instrument. The result of all the cases of im- plied intention seems to be, that the instrument must contain some provision inconsistent with the assertion of a right to demand a third of the lands, to be set out by metes and bounds." Birmingham v. Kir- wan, 2 S. & L. 452. Where the widow is not in express terms excluded from her right tt) dower, a question arises, and it is one by no means free from diffi- culty, what is a gift inconsistent with her assertion of that right ? It has been long since settled in cases previous to the Dower Act (3 & 4 Will. 4,'c. 105) coming into operation, that a devise by a testator to his widow of part of the lands of which she is dowable, is not incon- sistent with her claim to dower in the remainder ; this was decided in the leading case of Lawrence v. Lawrence. There the testator devised part of his real estate to his wife during her widowhood, and devised the residue to trustees, in trust for other persons ; and he bequeathed to his widow several specific and pecuniary legacies. It was held by Lord Keeper Wright, on appeal, reversing the decision of Lord Som- ers, and afterwards by Lord Cowper and the House of Lords, affirming the decision of Lord Keeper Wright, that the widow was not obliged to elect between her dower and the benefits derived under the will, and that she was *entitled to both : 2 Vern. 365 ; 2 Freem. 234, 235 ; [*358] g Pj.^_ p_ g_ ^gg^ Toml. Ed. See also Lemon v. Lemon, 8 Vin. Abr. " Devise," p. 366, pi. 45 ; French v. Davies, 2 Yes. jun. 512 ; Stra- han V. Sutton, 8 Yes. 249 ; Lord Dorchester v. Earl of Effingham, NOTS V. MORDAUNT, — STREATFIELD V. STREATEIBLD. . 525 Coop. 319 ; Brown v. Parry, 2 Dick. 685 ; Incledon v. Northcote, 3 Atk. 430, 436 ; and Gibson v. Gibson, 1 Drew. 42. A devise of lands, out of which the widow is dowable, upon trust for sale, is not inconsistent with her claim to dower out of those lands, even although the interest of a part of the proceeds of the sale is given to her. Thus, in Ellis v. Lewis, 3 Hare, 310, a testator devised all his real estate to a trustee upon trust for sale, with power to convey the same to purchasers, without the concurrence of any person or persons beneficially claiming under his will ; and he directed the trustee to stand possessed of the proceeds of such sale, together with the residue of his personal estate, upon trust to pay one moiety of the interest and dividends thereof to his wife during her widowhood, and the other moiety of such interest and dividends (and the whole after his wife's decease or second marriage) to his sister for her life, with remainder as to the whole of the trust-funds to the children of the testator's sister for their lives and the life of the survivor ; remainder over. It was held by Sir James Wigram, V. C, that the widow was entitled both to her dower and to the benefit given to her by the will. " I take the law," observed his Honor, " to be clearly settled at this day, that a devise of lands eo nomine upon trust for sale, or a devise of lands eo nomine to a devisee beneficially, does not, per se, express any intention to devise the lands otherwise than subject to its legal incidents, that of dower included. There must be soniething more in the will, something inconsistent with the enjoyment by the widow of her dower by metes and bounds, or the devise standing alone will be construed as I have stated. The case of French v. Davies, 2 Ves. jun. 572, is a direct au- thority for this proposition ; and the current of the authorities which are collected in the last edition of Roper's Husband and Wife, vol. i., p. 577, beginning with the leading case of Lawrence y. Lawrence, down to Dowson V. Bell, 1 Kee. 761, confirm it. If that be so, it is impossi- ble, in the case of a devise of lands upon trust for sale, that any direc- tion for the application of the proceeds of such sale can afiect the case. The devise is of land subject to dower. The trust to sell is a trust to sell subject to dower ; and the proceeds of the sale will represent the gross value of the estate, minus the value of the dower. Whatever direction, therefore, for the mere distribution of the proceeds the will may contain, that direction *must leave the widow's right to p-oqcQ-i dower untouched. ... I found myself upon these two '- -^ propositions : first, that a devise of land upon trusts for sale does not, per se, import an intention to pass the land otherwise than subject to the legal incident of dower ; and, secondly, that the direction to divide the proceeds of the sale cannot decide what the subject of sale is ; and there is no circumstance affecting the proposition in its application to the present case." See Gibson v. Gibson, 1 Drew. 42. It is immaterial, when there is a trust for sale, that there is a direc- 526 . ELECTION. tLon that the rents and profits are in the meantime to be applied in the same way as the income to arise from the produce of the sale : Ih. b*l- See also Bending v. Bending, 3 K. & J. 25f. The gift by the husband of an annuity or rent-charge to the widow, charged upon the property out of which she is at law entitled to dower, is not inconsistent with her claim to dower, and will not consequently of itself alone put her to her election between the annuity or rent- charge and dower. See Pitts v. Snowden, 1 Bro. C. 0. 292, n. ; Pear- son V. Pearson, 1 Bro. C. C. 291 ; Foster v. Cook, 3 Bro. C. C. 34T ; JDowson V. Bell, 1 Kee. 761 ; Harrison v. Harrison, 1 Kee. 765 ; and Holdich V. Holdich, 2 Y. & C. 0. C. 18 ; NorcoU v. Gordon, 14 Sim. 258, overruling Arnold v. Kempstead, Amb. 466 ; 8. C, 2 Eden, 236 ; Jones V. Collier, Amb. 730 ; and Wake v. Wake, 3 Bro. C. C. 255 ; S. C, 1 Ves. jun. 335. The case of Villa Real v. Lord Galway, 1 Bro. C. C. 292, n., though sometimes cited as an authority f(>r the proposi- tion, that a widow will be put to her election by the mere gift of a rent-charge or annuity out of the lands of which she is dowable, was decided, it seems, upon the ground that certain directions in the will as to the management of the whole estate, the payment of the annuity, and the accumulation during the minority of a child, were inconsistent with the setting out a third part of the estate by metes and bounds. See Birmingham r. Kirwan, 2 S. & L. 453 ; Roadley v. Dixon, 3 Russ. 202 ; Hall v. Hill, 1 D. & W. 103 ; S. C, 1 C. & L. 129. In Holdich V. Holdich, 2 Y. & C. C. C. 18, an important case on this subject. Sir J. L. Knight Bruce, Y. C, after having fullj^ considered all these cases, observes, " I feel bound by the present state of the authorities to say, that a mere gift of an annuity to the testator's widow, although charged on all the testator's property, is not sufficient to put her to her election. I consider myself equally bound by the authorities to say, that a mere gift to the widow of an annuity so charged, and a gift of the whole of the testator's real estate, though specified by name, to some other per- ^ son, *are not together of themselves suificient to put the widow r*360l ■- -'to her election; and, moreover, that a gift of a portion of the real estate to the widow, whether for life or during widowhood, is not suflScient, as to the residue of the estate, to put the widow to her elec- tion in respect (Jf dower." In Dowson v. Bell, 1 Kee. 761, where a tes- tator gives " all and singular his freehold lands" to trustees upon cer- tain trusts for his children, subject to an annuity, or rent-charge for his wife during widowhood, with power of distress, and he also gives to his wife specific legacies and the residue of his personal estate ; it was contended, that the gift of " all " the testator's estates, for the pur- poses of his will, was inconsistent with the abstraction of one-third of those estates for dower, in addition to the benefits given by the will to the widow, and that the remedy by distress for enforcing payment of the annuity applied to all the testator's lands, and was consequently NOTS V. MORDAUNT. — STREATFIELD V. STREATFIELD. 527 inconsistent witli an intention to devise two-thirds of them. However, Lord Lanadale, M. R., said, that in the consideration of this question, when a testator speaks of " all his estates," he must be held to mean all his estates subject to the legal rights against them, and amongst them is the wife's right to dower ; and that the widow should, therefore, he declared to be entitled both to the annuity and other benefits given to her by the will and to her dower. See also Thompson v. Nehon, 1 Cox, 44'r ; Harrison v. Harrison, I Kee. 765. A testator's dealings in his lifetime cannot, it seems, be taken into consideration in construing his will, with reference to the question whether he intended to exclude his wife from her dower, when the will contains no reference to those dealings. Thus, in Gibson v. Gib- son, 1 Drew. 42, where a testator had, before making his will (under which it was argued a case of election arose), sold part of his freehold estate, his wife joining to bar her dower, and previously and subse- quently to the making of his will he had contracted to lease part thereof, and after the date of his will to sell part to the lessee, and after his will he entered into an agreement to let another part of his freeholds, with liberty, to the lessee to pull down the buildings and erect others, which agreement after the death of the testator' the lessee acted upon, it was held by Sir R. T. Kindersley, V. C, that these deal- ings with the property by the testator could not be taken into consid- eration by the Court. " The intention," said his Honor, " to exclude the widow's dower, mu»t be collected from the will itself; and the Court cannot, in my opinion, look at the evidence of acts done in the testator's lifetime which are not noticed in the will." *The provisions which have generally been held inconsistent with the widow's legal right to dower, are those which prescribe '- -' to the devisees a certain mode of enjoyment, which shows the testator's intention that they should have the entirety of the property. Thus, in Birmingham v. Kirwan, 2 S. & L. 444, the testator devised his house and demesne to trustees upon trust to permit his wife to enjoy the same for life, she jjaying 13s. yearly for every acre, to keep the house in re- pair, and not to let, except to the person who should be in possession of the remainder; and he devised the residue of his lands, subject to debts and legacies, to A. for life, remainder to B. in fee. The question was as to the wife's right of dower : first, in the part devised to her ; secondly, in the residue. " The result," said Lord Redesdale, " of all the cases of implied intention seems to be, that the instrument must contain some provision inconsistent with the assertion of a right to de- mand a third of the land to be set out by metes and bounds Now, in the present case, it is clear the assertion of a right of dower as to the house and demesne would be inconsistent with the dispositions of the house and demesne contained in the will ; and therefore the widow cannot have both. The house and demesne are devised with 528 ELECTION. the rest of the estate to trustees. That devise taken simply might be subject to the widow's right of dower, but it is coupled with a direction that she shall have the enjoyment of the house and demesne, paying a rent of 1 3s. an acre, which must be out of the whole. Then follow directions that she shall keep the house and demesne in repair, that she shall not alien, except to the persons in remainder ; directions which apply to the whole of the house and demesne, and could not be consid- ered obligations on a person claiming by dower. It was clearly, there- fore, the intention of the testator, that the wife should enjoy the whole of the house and demesne under a right created by the will ; and not a part of it under a right which she previously had, and part under the will Then comes the question, whether the implication extends to the rest of the estate ? I cannot, on the whole of the case, think the testator has sufficiently manifested an intent that this beneficial in- terest in the house and demesne, given upon a reserved rent, and under certain conditions, should be considered as a bar of dower out of the rest of the estate. The will may be perfectly executed as to all other purposes without injury to the claim of dower, with respect to the rest of the estate ; it may be mortgaged or sold, subject to that claim." And see Goodfellow v. Good/ellow, 18 Beav. 356 ; see, *however, [*362] gi^gj^^^ ^ Sutton, 3 Ves. 249. In Miall v. Brain, 4 Madd. 119, a testator devised all his real and personal estate to trustees upon trust, as to a certain freehold mes- suage, for his wife during her widowhood, and to pay her, out of the rents and profits, an annuity for life ; and upon further trust to permit ,his daughter to use, occupy, and enjoy a certain messuage for her life, and after her decease to raise 2000Z. for her children ; and after giving legacies to his other children, the testator gave the residue of his real and personal estate amongst his children, and gave the usual power of sale to the trustees. Sir J. Leach, M. R., held, that the widow was put to her election. " The . testator," observes his Honor, " directs the trustees to whom he devises his estates to permit his daughter to use, occupy, and enjoy a certain freehold house for her life. I think the testator contemplated for his daughter the personal use, occupation, and enjoyment of his house ; and such personal use, occupation, and en- joyment is inconsistent with the widow's right to dower out of that house This house is part of a general devise to the trustees of all his real estate, and the testator has not given this house to the trustees free from the widow's dower, unless he has so given his whole real estate. I think the testator has shown a plain intent that the trustees should take an interest in this house which wovild exclude the widow's dower ; and the same intention must necessarily be applied to the whole estate which passes by the same devise." In Butcher v. Kemp, 5 Madd. 61, where the testator, having devised a freehold farm, containing about 136 acres, to trustees and their heirs, during the NOYS V. MORDAUNT. — STREATFIELD T. STREATFIELD. 529 minority of his daughter, directed them to carry on the business of the farm, or let it on lease, during the daughter's minority, and the testa- tor devised some lands to his widow for her life, and also gave her sev- eral speeiflc and pecuniary legacies, Sir John Leach, V. C, held, that the widow was put to her election. " The question," said his Honor, "is, whether the testator can be considered as speaking here of his in- terest in the farm, subject to his widow's claim of dower? His plain intention is that the trustees should, for the benefit of his daughter, have authority to continue, his business in the entire farm wliich he himself occupied, consisting of about 136 acres; and this intention must be disappointed if the widow could have assigned to her a third part of this land. This case is within the principle of Miall v. Brain, which was lately before me, in which I held the claim of dower neces- sarily excluded by the gift of a house for the personal occupation and enjoyment of the testator's daughter." In Eoadley v. Dixon, *3 r:)cqpo-| Russ. 192, where a testator, after bequeathing to his wife an annuitj'' charged on his estate at S., with power of entry and distress, if it should be in arrear for thirty days, and after giving other lega- cies and annuities, which he charged on his lands at S., in aid of his personal estate, gave and devised all his real and personal property to trustees upon certain trusts ; and he directed them to occupy and man- age, during the minority of his son, a farm, constituting the greater part of his estate at S., and to let and manage the residue of the real estates, and to receive the rents of the whole of his real estates, Lord Lyndhurst held, that the widow was put to her election between her dower and the benefits given to her by the will. " Without meaning to say," observed Ijis Lordship, "that a mere charge of an annuity in fa- vour of the widow, with a clause of entry and distress, would be suffi- cient to put her to her election ; but considering the particular disposi- tions which the testator has made of his property, — the charge of the annuity, the clause of entry and distress, the express direction for the occupation of part of the estate by the trustees, the trusts declared with respect to the rents, profits, and issues of the whole of the real estate ;—ytaking all these circumstances together, I think it was the manifest intention of the testator that the whole of his property should be free of dower ; and that intention is so clear and distinct as to au- thorise me to say that the widow must be put to her election." In this ease the Lord Chancellor acts upon and approves of the rule laid down in Miall v. Brain, viz., that where a testator devises the whole of the property together in general terms, and it is manifest that it was his intention that one part of the property should not be subject to dower, it follows that no part of the property should be considered as so subject. See Hall v. Hill, 1 D. & W. 94 ; 1 C. & L. 120 ; decided, in a great measure, on the ground of a power of leasing, which applied to the whole property. See also Beynard v. Spence, 4 Beav. 103 ; Taylor v. VOL. I. — 34 530 ELECTION. Taylor, 1 Y. & C. 0. C. 721 ; O'Eara v. Ghaine, IJ. & L. 662 ; Eoldich V. Eoldich, 2 Y. & C. 22 ; Lowes v. Lowes, 5 Hare, 501 ; Robinson v. Wilson, 13 Ir. Eq. Rep. 168, 183 ; Pepper v. Dixon, IT Sim. 200 ; Gray- son V. Deakin, 3 De Gex & Sm. 298 ; Parker v. Sowerby, 1 Drew. 488 ; 4 De Gex, Mae. & G. 321 ; Taylor v. Linley, 5 Jur. N. S. (V. C. S.) 101 ; and a direction to cut down timber on any part of the estate would, it seems, be entirely inconsistent with the wife's right to dower. lb. It must be considered that Warbutton v. Warbutton, 2 Sm. & Giff. 163 (which seems to proceed upon a misapprehension of the judgment r*364l °^ Lord St. Leonards in *Eall v. Eill, 1 Dru. & War. 94), is overruled. There is another class of cases in which much discussion has arisen, where a testator has devised lands, of which his widow is dowable, to herself and others in equal shares. The first case is that of Chalmers V. Storil, 2 V. & B. 222. There the words of the will were, " I give to my dear wife A., and my two children B. & C, all my estates whatso- ever, to be equally divided amongst them, whether real or personal." And the testator specified the property bequeathed by him as consist- ing of freehold ground-rents, money on mortgage, American bank stock, an estate in America, &c. Sir W. Grant, M. E,., held, that it was a case of election, the claim of dower being directly incgnsistent with the disposition of the will. " The testator," observed his Honor, " directing all his real and personal estate to be equally divided, the same equality is intended to take place in the division of the real as of the personal estate, which connot be if the widow first takes out of it her dower, and then a third of the remaining two-thirds. Fur- ther, by describing his English estates he excludes the ambiguity which Lord Thurlow in Foster v. Cook, 3 Bro. C. C. 341, imputes to the word ' my estate,' as not necessarily extending to the wife's dower." As to the last remark being one ground for his Honor's decision, it is clear at the present day, if not in the time of Lord Thurlow, that such a devise, as " all my English estates" would merely mean and pass the testator's English estates, subject to dower. See Pead v. Crop, 1 Bro. C. 0. 492 ; Dowson v. Bell, 1 Kee. 161 ; Gibson v. Gibson, 1 Drew. 50. The other and principal ground upon which Chalmers v. Storil was decided^ — viz., that equality, which was intended, would be destroyed by letting in claim to the dower — has been followed by subsequent judges. Thus, in Dickson v. Robinson, Jac. 503, the testator gave his real and personal estate to his wife in trust for the equal benefit of herself and her two daughters. Sir Thomas Plumer, M. B., said that he could not distinguish the case from Chalmers v. Storil. " The substance of the will," said his Honor, "is, that there should be an equal division of the property, which cannot take place if the widow is to have a third. The real and personal estate are united together ^ the personal estate is not subject to any antecedent claim ; and is not the real estate intended NOYS V. MOEDAUNT. — STREATFIELD V. STEBATFIELD. 531 bo be given in the same manner ? The principle certainly is, that the Court will go as far as it can, not to exclude the claim of dower ; but here it would be inconsistent with the will." In Roberts v. Smith, 1 S. & S. 513, the testator, after giving his wife an estate in fee, and certain legacies, devised gavelkind lands, and *all other his property of what nature or kind soever, to his wife and two other per- '- ^ sons in trust, as to one moiety, for the maintenance of herself and her children by a former marriage, and as to the other moiety, for his chil- dren. Sir J. Leach, V. C, held, that the widow was put to her elec- tion. " The principle," said his Honor, " referred to in Ghalmers v. Storil decides this case. The plain intention of the testator was, that the wife should have half the income of his property, for the mainte- nance of herself and her children by her former husband, and that the other half of the income should be applied to the maintenance and education of the testator's own children. That intended equality would be disappointed if the wife were in the first place to take her dower." See also Reynolds v. Torin, 1 Russ. 129. Although Ghalmers v. Storil, has been so often recognised and fol- lowed as an authority, it scarcely seems to have been decided upon correct principles ; because, when a person devises all his " estates " to his widow and children, " equally to be divided among them," he, ac- cording to the ordinary rules of construction, would be held to devise only what belonged to him — viz., the estate subject to the widow's right to dower ; and an equal division of the estate after the assign- ment of the widow's dower by metes and bounds would fully satisfy the words of the will. See 1 Jarm. on Devises, 402 ; Ellis v. Lewis, 3 Hare, 315. In a recent case, Sir. W. Page Wood, V. C, stated that Ghalmers v. Storil is imperfectly reported ; see Bending v. Bending, 8 K. & J. 261. If a man devises his real estate from his heir after giving his widow a provision in lieu, satisfaction and bar of dower, and the devisee dies in the lifetime of the devisor, the heir will take the estate, but the widow will be obliged to elect. See Pickering v. Lord Staviford, 3 Ves. 337. But a gift by a testator to his widow in lieu of thirds of his personal property, does not preclude her from claiming her share of the person- alty under the Statute of Distributions, in the event of the failure of a bequest of that property. Thus, in Pickering v. Lord Stamford, 3 Ves. 492, where a testator gave part of his real and personal property to his wife in lieu of dower or thirds, which she could claim out of his real or personal estate, or either of them, and bequeathed the residue of his personal estate (part of which consisted of real securities) to his executors, for charitable purposes, which bequest was of course void as to the real securities ; it was held by Lord Loughborough, affirming the decision of Lord Alvanley, M. R. (3 Ves. 332), that the widow was not barred by the clauses in the will. His Lordship observed, — 532 ELECTION. *" Neither an heir-at-law, nor by parity of reasoning next of '- -^ kin, can be barred bj'' anything but a disposition of the heritable subject or personal estate to some person capable of taking. Notwith- standing all the words of anger and dislike applied to the heir, he will take what is not disposed of. It is impossible to make a different rule as to personal estate, with regard to what is not disposed of. Here is a legal intestacj', for the gift to the cbaritj' is void at law. Being a legal intestacy, I am to control the Statute of Distributions. How can the Court possibly do that? I must close the will, and cannot look at it." See Sympson v. Hornby, cited 3 Yes. 335 ; Wetherell v. Wetherell 4 GiflT. 1. But it seems that the principle of the decision in Pickering V. Stamford will not apply to a case where, on the face of the will, there is an intestacy as to a great part of the estate : Lett v. Randall, 3 Sm. & G. 83, 91, n. A provision made for a wife, by a rent-charge " for her jointure, and in lieu of dower and thirds at common law," does not extend to her share of the personal estate under the Statute of Distributions : Colleton V. Garth, 6 Sim. 19. But the addition of the words " out of any real or personal estate " has been held to do so {Qurly v. Gurly, 8 C. & F. T48 ; and see Thompson v. Watts, 2 J. & H. 291 ; and the words " in lieu of dower or thirds at common law, or otherioise," have been held to extend to a wife's freebench in copyholds : Nottley v. Pal- mer, 2 Drew. 93. With regard to widows married since the 1st January, 1834, ques- tions of election will less frequently arise, as dower may now be much more readily barred by the husband. See 3 & 4 Will. 4, c. 105, ss. 4, 5, 6, Y, and 8. And a devise of land by a man married after the 3 & 4 Will. 4, c. 105, came into operation, will, in the absence of a contrary intention declared by the will,, deprive her of dower. See Sect. 9, which enacts, " that where a husband shall devise any land out of which his widow would be entitled to dower if the same were not so devised, or any estate or interest therein to or for the benefit of his widow, such widow shall not be entitled to dower out of or in any land of her said husband, unless a contrary intention shall be declared by his will." In Rowland v. Cuth- hertson, 8 L. R. 466, a testator after directing his debts to be paid by his executors, devised his real and personal estate, subject as aforesaid, to trustees upon certain trusts, being partly for the benefit of his widow. It was held by Lord Romilly, M. R., that the widow was deprived of her dower by Sect. 9, of the Dower Act. " I thought it desirable," said his Lordshi^D, " to reserve my judgment in order that I might refer ^^ to some of the *cases decided before the Act (of which Laiv- L -' rence v. Lawrence, 3 Bro. P. C. 483, may be taken as an ex- ample), by which it was settled that were a man devises all his estate, that does not dispose of the wife's dower, but means the estate subject NOYS V. MORDAUNT. — STREATEIELD V. STREATFIELD. 533 to dower. I think, however, that the Act was intended to make a dif- ference in that respect. . . . Certainly there is no indication of a contrary intention, and I am of opinion that there is no dower." By the 10th section of 3 & 4 Will. 4, c. 105, it is enacted, "that no gift or bequest made by any husband to or for the benefit of his widow, of or out of his personal estate, or of or out of any of his land not liable to dower, shall defeat or prejudice her right to dower, unless a contrary intention shall be declared by his will." If a testator, having an undivided interest in a particular property, devises that property specifically to his co-owner, a case of election arises, and the devisee must elect between his own interest in the prop- erty and the interest he takes under the will. But if the testator does not dispose of it specifically, but by general words, such as " all my lands and hereditaments," or the like, no case for election arises, because there is other property of the testator's sufficient to satisfy the devise itself. Thus in Miller v. Thurgood, 33 Beav. 496, a testator had a free- hold in Potter Street and a freehold in South Street, and he was entitled to two-thirds of a house and eighteen freehold cottages in South Street, the other one-third belonging to his wife. By his will he devised all his freehold messuages, cottages, &c., in the two streets, to his wife for life, she keeping them in teuantable repair, and after her decease upon trusts to sell and divide the proceeds amongst his children. It was held by Sir John Romilly, M. E,., that the wife was bound to elect be- tween her one-third of the house and cottages and the other benefits given to her by the will. " If," said his Honor, " the testator had devised his property in these terms, ' all and every my freeholds in Potter Street and South Street and elsewhere, with the appurtenances,' I should be of opinion that no case for election arose. But he specifi- cally points to his ' cottages ' in South Street, and that being so, I am of opinion that these words can only refer to the messuage and eigh- teen cottages of which he had onlj' two-thirds, and consequently I am of opinion that a case for election arises." If a person comes in directly under a settlement, and asks to have the benefit of such of its provisions as give him an advantage, and at the same time claims adversely to what was intended to be the rest of the settlement, because it was not binding, then *a case of elec- |-:|.q/>q-i tion arises. Thus, in Brown v. Brown, 2 L. R. Eq. 481, mar- riage articles executed when the lady was a minor, contained a cove- nant hy the husband to settle her interest in real and personal estate, including after-acquired property, on the usual trusts ; and she died without having confirmed the articles, leaving her husband surviving, and an only child, her heiress-at-law, who claimed an interest under the articles in the personal estate, and also claimed the real estate attempted to be settled as heiress-at-law of her mother. It was held by Lord Romilly, M. R., that the heiress-at-law was put to her election whether 534 ELECTION. she would take under or against the settlement. " In the present case," said his Lordship, " the plaintiff comes in and claims directly under the limitation of the personal estate for her benefit under the settlement, and claims the real estate adversely to the settlement, on the ground that in the event the settlement did not bind it. I think, therefore, that she claims beneficially under the settlement directly, and that consequently she must elect whether she will take adversely to it or under it ; if the latter, she must give effect to the whole of it as far as she can." And see also Anderson v. Abbott, 23 Beav. 45*1; Wil- loughby v. Middleton, 2 J. & H. 344. Where, however, a person, as, for instance, an heir-at-law of an infant, claims property as not being bound by a settlement made by the infant, if he has no benefit, and claims none under the settlement, he may assert his right, there being no case of election ( Campbell v. Ingilby, 21 Beav. 567 ; 1 De G. & Jo. 393) ; and he is entitled to do this, though it may be from extraneous circumstances, and by some separate and independent cause, he has obtained some benefit under the settlement. Per Lord Romilly, M. R., in Brown v. Brown, 2 L. R. Eq. 485. The doctrine of election is not applicable to creditors taking the benefit of a devise for the payment of debts, and also enforcing their legal right against other funds disposed of by the will : Kidney v. Goussmaker, 12 Ves. 136. See also Clark v. Guise, 2 Ves. 61Y. In JDeg V. Deg, 2 P. Wms. 412, 418, where a father devised his own estate and an estate of his son's for the payment of debts, the son was allowed as a creditor of his father to share with the other creditors in the benefit conferred upon them by the provision for payment of debts, without being obliged to give up his own estate. But these questions will not arise often now, as real estates are liable to the payment of debts by simple contract as well as specialty. See 3 & 4 Will. 4, e. 104. A devise of an estate does not, per se, import an intention to r*RfiC)1 *'i^'^^®^ it free from incumbrances to the devisee, so as to put the incumbrancers taking benefits under the will to their elec- tion (Stephens v. Stephens, 1 De Gr. & Jo. 62; 3 Drew. 69'7) ; the inten- tion to do so must appear conclusively from the words of the will : Sadlier v. Butler, 1 I. R. Eq. 415, 423. A person will not be obliged to elect between benefits conferred upon him by an instrument, and an interest which he takes derivatively from another, who has elected to take in opposition to the instrument. Thus it was held, that a husband might be tenant by the courtesy of an estate- tail, which his wife had elected to take in opposition to a will, under ■^ich he had accepted benefits : Lady Cavan v. Pulteney, 2 Ves. jun. lu; 3 Ves. '384. Nor will a person be compelled to elect between a benefit conferred NOYS V. MORDAUNT. — STREATFIELD V. STKEATFIELD. 635 upon him by an instrument and an interest which he took adversely to the instrument, and derivatively from the real owner who took no bene- fit thereunder. Thus, in Grissell v. Swinhoe, T L. R. Bq. 291, a testator being entitled under a settlement, subject to a life interest, to a moiety of a fund of 25,300 rupees, by his will, after reciting erroneously that he was under the settlement, " subject to the trusts therein contained," en- titled to the said sum of 25,300 rupees, he bequeathed the whole of the said sum of rupees in equal moieties, viz., one moiety to H. Swinhoe, whose wife was really entitled under the settlement to one moiety, and the other moiety to his daughter, Charlotte. Mrs. H. Swinhoe died, and her husband took out letters of administration to her estate and effects. It was held by Sir W. M. James, V. C, that H. Swinhoe was not bound to elect between the legacy and the moiety of the fund which he took as administrator of his wife. " I am of opinion," said his Honour, " that DO case of election arises, because the gift is to H. Swinhoe in his own right, and the claim is by him as the representative of Mrs. Swinhoe. True it is that the representative of Mrs. Swinhoe, being her husband, would be entitled to the ultimate surplus, whatever that may be, of that which he took as her personal estate. But that is a mere incident to her estate. The result will be that the fund is divisible in fourths ; three-fourths going to Henry Swinhoe, and the remaining fourth to the plaintiff." See the remarks on this case in Cooper v. Cooper, 6 L. R. Ch. App. 21. Now it is presumed that if in this case, before the death of the testator, H. Swinhoe, had, by his wife's death, and by taking out letters of administration to her, become the real owner of her share in the 25,300 rupees before the death of the testator, he would have been compelled to *elect, and would consequently only have been r<^oHo-\ entitled to a moiety. This it seems is the effect of the recent decision of Cooper v. Cooper, 6 L. R. Ch. App. 15 ; there a lady having a power of appointment during a limited time in favour of any of her issue over (amongst other property) the proceeds of an estate, called Pain's Hill, directed to be sold, made within that time an appoint- ment by deed which included such proceeds, in favour of all her three children, reserving a power of revocation and new appointment. The lady survived the time during which she could exercise the power ; and after her death, it appeared, that by her last will and testament in writ- ing " she gave and appointed " Pain's Hill to her eldest son absolutely, and by a subsequent codicil she gave her residuary property to her three sons equally; and afterwards, upon the death of Roland Edward, one of her sons, by another codicil, she gave to his children two-thirds of the share of the residuary estate, intended for him, and the other one- third of that share to her two surviving sons. The gift and appoint- ment by her will of the Pain's Hill estate being held inoperative, the proceeds of Pain's Hill belonged, under the appointment by deed, to the two surviving sons, and the children of the deceased son. Upon a bill. 536 ELECTION. filed by the eldest son, it was held by the Lords Justices, reversing the decision of Sir John Stuart, V. C, that not only the surviving younger son, but also the children of his deceased brother, E,oland Edward, were put to their election to take, either under or against the will and codi- cils, that is, that thej^ were bound, either to allow the whole of the pro- ceeds of Pain's Hill to go according to the will to the eldest brother, or to give up to the extent of compensating liim the other benefits pro- vided for them by the will and codicils. " What was pressed upon us," said Lord Justice James, " was this: that the children of Roland Ed- ward were not the owners of one-third of Pain's Hill, within the mean- ing of the rule ; but what thej' were entitled to was not Pain's Hill or any part of Pain's Hill in specie, but a share of the ultimate residue, whatever that might be, of the entire personal estate of the intestate, in a due course of administration ; that it vested not in them, but in Ro- land Edward's estate, and that their share was an incident to that estate. In support of that contention, a decision of mine, when Vice Chancellor, was much pressed upon us : Grinsell v. Swinhoe (1 L. R. Eq. 291 ; but the decision there, whether right or wrong, proceeded on the' assumption that the legatee's title to the properly did not exist at the death, but was a derivative title, through the title of another person r^qiTi -] who was *the true owner at the death ; just as if in this case the children of Roland Edward had been the objects of the testa- trix's bounty, and Roland Edward had survived the testatrix, and af- terwards the children had succeeded beneficially to his estate, including his share of the proceeds of Pain's Hill." See also Brodie v. Barry ^ 2 V. & B. 12Y. A person entitled in remainder, to an interest in property is not bound by the election of a person having a prior interest : Ward v. Baugh, 4 Ves. 623 ; Lo7ig v. Long, 5 Ves. 445. See also Hutchison v. Skelion, 2 Macq. H. L. Cas. 492, 495. So, likewise, every member of a class, as, for instance, next of kin, has a distinct right to elect, and will not be bound by the election of the majority : Fytche v. Fytche, 1 L. R. Eq. 494. Privileges of persons compelled to elect.'] — Persons compelled to elect are entitled previously to ascertain the relative value of their own prop- erty, and that conferred upon them : Newman v. Newman, 1 Bro. C. C. 186; Wake v. Wake, 3 Bro. C. C. 255; 1 Ves. jun. 335; Chalmers v. Storil, 2 V. & B. 222 ; Render v. Rose, 3 P. Wms. 124, n. ; Whistler v. Whistler, 2 Ves. jun. 3G1, 3'7l. In Boynton v. Boynton, 1 Bro. C. C. 445, although Lady Boynton had bj' her answer elected to take her dower, in- stead of the benefit given to her by her husband's will. Sir Thomas Sewell, M. R., declared on the hearing, that as no account of the testa- tor's personal estate and of his debts had been taken, she was not obliged to make any election until the account should be taken, and it should appear out of what real estate she was dowable at the time of NOTS V. MORDAUNT. STEEATFIBLD V. STREATFIELD. 537 the testator's decease ; and it was referred to the Master to take an ac- count of the personal estate, and also to state out of what estate she was dowable. As to the apportionment of debts upon different funds, see Cooper v. Gooper, 6 L. H. Ch. App. 15. A person compelled to elect may in general file a bill to have all neces- sary accounts taken (Butriche v. Brodhurst, 3 Bro. C. C. 88 ; 1 Ves. jun. ni ; Pusey v. Desbouvrie, 3 P. Wms. 315) ; but a bill is not always necessary for this purpose, as the Court may, when there is a cause in 'existence relating to the same matter, direct such inquiries as may be necessary to guide the person put to his election in exercising it : Doug- las V. Douglas, 12 L. R. Eq. 617. And an election made under a mis- taken impression will not be binding, for in all cases of election the Court, while it enforces the rule of equity, that the party shall not avail himself of both his claims, is anxious to secure to him the option of either, and not to hold him concluded by equivocal acts, performed, perhaps, in ignorance of the value of the funds : Pusey v. Desbouvrie, 3 P. Wms. 315 ; * Wake v. Wake, 3 Bro. C. C. 255 ; Kidney v. r^oijo-] Goussmaker, 12 Ves. 136 ; Dillon v. Parker, 1 Swanst. 381, and note. What will be considered as an election.'] — Election is either express (about which it is unnecessary to say anything) or implied. And here considerable difficulty often arises in deciding what acts of acceptance or acquiescence amount to an implied election ; and this question, it seems, must be determined more upon the circumstance of each particu- lar case, than upon any general principle ; Whitridge v. Parkhurst, 20 Maryland, 62, 12. On a question of election by a party bound to elect between two prop- erties, it is necessary to inquire into the circumstances of the property against which the election is supposed to have been made ; for if a party so situated, not being called on to elect, continues in the receipt of the rents and profits of both properties, such receipt cannot be construed into an election to take the one and reject the other ; Whitridge v. Parkhurst; and in like manner, if one of the properties does not yield rent to be received, and the party liable to elect deals with it as his own, — as, for instance, by mortgaging it (particularly if this be done with the knowledge and concurrence of the party entitled to call for an election), — such dealing will be unavailable to.prove an actual election as against the receipt of the rent of the other property : Padbury v. Clark, 2 Mac. & G-. 298 ; and see Morgan v. Morgan, 4 Ir. Ch. Rep. 606, 614. As we have before seen, any acts, to be binding upon a person, must be done with a knowl- edge of his rights. They must also be done with the knowledge of the right to elect: Briscoe v. Briscoe, 1 Ir. Eq. R. 123: 1 Jo. & L. 334: Sweetman v. Sweetnian, 2 I. R. Eq. 141, and with the intention of elect- ing: Stratford v. Powell, 1 Ball & B. 1 ; Dillon v. Parker, 1 Swanst. 538 ELECTION. 380, 387 ; Edwards v. Morgan, M'Clell. 541 ; 13 Price, 782 ; 1 Bli. N. S. 401 ; '^orthington v. Wiginton, 20 Beav. 61 ; Wintour v. Clifton, 21 Beav. 441, 468 ; 8 De G. Mac. & G. 641 ; Campbell v. Ingilby, 21 Beav. 582. It is difficult to lay down any rule as to what length of time, after acts done by which election is usually implied, will be binding upon a party, and prevent him from setting up the plea of ignorance of his rights. In Wake v. Wake, 1 Ves. jun. 335, it was held that three years' receipt of a legacy and annuity, under a will by a widow in ignorance of her rights, did not preclude her from making her election ; in Bey- nard v. Spence, 4 Beav. 103, where a widow had received an annuity for five years, it was held, she had not elected. See also Butricke v. Brodhurst, 3 Bro. C. C. 90; S. C, 1 Ves. jun. 112; Dillon v. Parker, 1 Swanst. 386 ; and in Sopwith v. Maugham, 30 Beav. 235, where a widow P^oKq-] had *for sixteen years enjoyed a provision under a will in igno- rance of her right to dower, in express satisfaction of which the provision was made for her, she was held not to have elected. But a person may by his acts sufi'er specific enjoyment by others un- til it becomes inequitable to disturb it; Tibbits v. Tibbits, 19 Ves. 663 ; Dewar v. Maitland, 2 L. E,. Eq. 834. Acts of implied election which will bind a party will also bind his representatives ; {Earl of Northumberland v. Earl of Aylesford, Amb. 540, 651 ; Deivar v. Maitland, 2 L. R. Eq. 834. See also 2 Ves. 525 ; Stratford v. Powell, 1 Ball & B. 1 ; Ardesoife v. Bennet, 2 Dick. 463;) and some acts, which it appears would not be binding upon him if in- sisted upon in his lifetime, will bind his representatives " upon that principle only," as observed by Lord Hardwicke, " not to disturb things long acquiesced in in families, upon the foot of rights which those, in whose place they stand, never called in question : " Tomkyns v. Lad- broke, 2 Ves. 593 ; Worthington v. Wiginton, 20 Beav. 61 ; Sopwithy. Maugham, 30 Beav. 235, 239 ; Whitley v. Whitley, 31 Beav. 113. If election be doubtful it may be sent to a jury to determine that fact : Boundell v. Currer, 2 Bro. C. C. 13 ; 1 Swanst. 383, n. But if the representative of those who were bound to elect, and who have accepted benefits under the instrument imposing the obligation of election, but without explicitly electing, can offer compensation, and place the other party in the same situation as if those benefits had not been accepted, they may renounce them and determine for themselves : Dillon V. Parker, 1 Swanst. 385 ; Moore v. Butler, 2 S. & L. 268 ; Tysson v. Benyon, 2 Bro. C. C. 5. If election be doubtful it may be sent to a jury to determine that fact: Boundell v. Currer, 2 Bro. C. C. 13 ; 1 Swanst. 383, n. The case of Harris v. Watkins, 2 K. & J. 413, seems to have been decided scarcely in accordance with the principles deducible from the authorities. There a testator devised his residuary, real, and personal NOTS, V. MORDATJNT. — STREATFIELD V. STRBATFIELD. 539 estate to his wife " in lieu and discharge of all money which he had bor- rowed out of and forming part of the trust moneys mentioned in the settlement made on his marriage with her," and he made his wife execu- trix. She died three days after the testator, and without having possessed herself of any of his real or personal estate. On the testator's death the widow became entitled to the trust moneys under the settlement abso- lutely. The evidence as to the relative value of the property given to the widow by the will, and the money which she would be entitled to out of her husband's estate in payment of the trust moneys borrowed by him, seems to have been involved in much obscurity. It was held by Sir W. P. Wood, V. C, that the Court could not presume a dis- claimer by the widow, *and consequently that her heir was en- r-^ohA-\ titled to the devised estate, and the debts claimed by her ad- '- ministrator as due to her from the testator were discharged. His Honor thought it was not so much whether the Court would presume election, as whether it would presume a rejection of the devise. That there was no evidence as to any disclaimer, and that the only question was whether, having regard to the circumstances of the devisee's death, and to the relative values of the estate devised and of the debts to be discharged, the Court was called upon to presume a disclaimer. " Whether," his Honor added, " circumstances might not exist under which the Court would be justified in presuming a disclaimer, is a ques- tion of some nicety. I am not aware of any authority upon the point ; but I apprehend that in a strong case, — for instance, if a testator de- vised real estate worth 10,000L only, and declared that it should be taken in lieu and discharge of debts to the amount of 20,000L,in such a case, it being manifest that it would be to the disadvantage of the de- visee to retain the estate upon the terms mentioned in the will, the Court, in the event of the devisee dying under circumstances like the present, would, as between his real and personal representatives, strug- gle hard to presume a disclaimer ; but where it is not manifest that it would be for the advantage of the devisee to retain the estate upon the terms proposed by the testator, the ground of that presumption fails, and the presumption does not arise." Where an infant is bound to elect, in some instances, as in Streatfield V. Streatfield, the period of election is deferred until after the infant comes of age. See Boughton v. Boughton, 2 Ves. 12 ; Bor v. Bor, 2 Bro. P. C. 473, Toml. Ed. In other cases there has been a reference to in- quire what would be most beneficial to the infant : Chetwynd v. Fleet- wood, 1 Bro. P. C. 300, Toml. Ed. ; 2 S. & L. 266 ; Goodwyn v. Good- wyn, 1 Ves. 228 ; Bigland v. Huddleston, 3 Bro. C. C. 285, n. ; Gr'etton V. Haward, 1 Sawnst. 413 ; Ehrington v. Ehrington, 5 Madd. 11 Y ; Ash- burnham v. Ashburnham, 13 Jur. 1111 ; Prole V. Soady, 8 W. R. (V. 0. S.) 131 ; Brown v. Brown, 2 L. R. Eq. 481 ; and see Griggs v. Gib- son, 1 L. R. Eq. 685 ; Seton, 495, 3rd ed. In others an order has been 54:0 ELECTION. made for an infant to elect without a reference to Chambers : Blunt v. Lack, 26 L. J. Ch. 148 ; Lamb v. Lamh, 5 W. R. (V. C. K.) 1T2 : Seton, 260, 261, 3rded. The practice as to election by married women in the Court of Chan- cery also varies ; see Mr. Swanston's note to Gretton v. Haward, 1 Swaust. 413 ; but in general there will be an inquiry what is most bene- ficial for them, and they will be required to elect within a limited time. r-ifohK-i See Pulteney v. Darlington, 1 Bro. P. C. 546, 547, *Toml. Ed. 2 Ves. jun. 560 ; 3 Ves. 385 ; Vane v. Lord Bungannon, 2 S. & L. 133 ; Davis v. Page, 9 Ves. 350. In Wilson v. Lord John Townsend, 2 Ves. jun. 693, Lord Rosslyn, although he admitted that to be the general practice, dismissed the bill without a reference, as the married woman " had manifestly a much better interest than the testatrix in- tended." See also Parsons v. Dunne, 2 Ves. 60, Belt's Suppl. 276. A married woman may elect so as to affect her interest in real prop- erty ; and where she has once so elected, though without deed acknowl- edged, the Court can order a conveyance accordingly ; the ground of such order being that no married woman shall avail herself of a fraud. Having elected, she is bound, and the transaction will be enforced against the heir : Ardesoife v. Bennet, 2 Dick. 468 ; Barrow v. Barrow, 4 K. & J. 409 ; Willoughby v. Middleton, 2 J. & H. 344 ; Sisson v. Giles, 11 W. R. (V. C. S.) 558 ; Savill v. Savill, 2 Coll. 721 ; Ander- son V. Abbott, 23 Beav. 457 ; sed vide Campbell v. Ingilby, 21 Beav. 567, which may be considered as contrary to the current of authorities on this point. Lord Cottenham, however, was of opinion in the case of Frank v. Frank, 3 My. & Cr. 171, that a feme covert was not com- petent during the coverture to elect between a jointure made to her after her marriage and her dower at common law, because there is an express provision in 27 Hen. 8, c. 10, that her election shall be made at the time when the right is claimed, that is to say, after her husband's death. See also Anon., Dyer, 358, b. Ordinarily a married woman cannot elect to relinquish a reversionary chose in action : Robinson v. Wheelwright, 6 De G. Mac. & G. 535, 546 ; Whittle v. Henning, 2 Ph. 731 ; Williams v. Mayne, 1 I. R. Eq. 549, overruling Wall v. Wall, 15 Sim. 513. But see now 20 & 21 Vict, c. 57, fully noticed in the note to Ryall v. Bowles, vol. i\. post. It would seem however that upon principle a married woman, in the case of a reversionary interest in personalty, equally as in the case of real property (at any rate where under the act 20 & 21 Vict. c. 57, she has power to dispose, in manner therein mentioned, of such reversionary interest), would not be allowed to avail herself of a fraud, and might therefore be held to have made her election even when such reversionary interest in personalty was thereby affected. See, however, Williams v. Mayne, 1 I. R. Eq. 519. A person who does not elect within the time limited will be con- NOTS V. MORDAUNT. — STREATFIELD V. STEEATFIELD. 541 [^ste] sidered as having elected to tate against the iBstrument putting him to his election. See the decree in Streatjield v. Streatjield, 1 Swanst. 447. Parties disappointed by the election of the heir to take against a *mll, by requiring the executors to complete a contract for an estate entered into by the testator, have no lien on the estate for the amount of the benefits the heir has taken under the will, but after his death they are entitled to prove against his estate for the amount which he has so received: Oreenwood v. Penny, 12 Beav. 402. It may be here mentioned that under 36 Geo. c. 52, and 45 Geo. 3, c. 28, no legacj' duty is payable on the value of personal estate given up by one legatee to another under the doctrine of election ; but where a testator devises his own real estate to one person, and bequeaths such person's personal estate to a third party, legacy duty will be payable on the value of the personal estate so charged on the testator's real estate: Laurie v. Glutten, 15 Beav. 131. The principle of election, treated in the preceding note, is recog- nized and established in this country, almost exactly as in Eng- land. It rests upon the equitable ground, that no man can be per- mitted to claim inconsistent rights with regard to the same subject, and that any ope who claims an interest under an instrument, is bound to give full effect to that in- strument as far as he can : a per- son cannot accept and reject the same instrument, or, having availed himself of it as to a part, defeat its provisions in any other part : and this applies to deeds, wills, and all other instruments whatsoever. See ante, Wilbanks v. Wilbanks, 18 Illinois, 19; Waters v. Howard, 1 Maryland, Ch. 112; M'Elfresh, Adm'r, v. Schley and Barrs, 2 Gill, 181; 201, 202 ; Field v. Eaton, 1 Devereux, Equity, 283, 286, 287 ; Ex''rs of Cogdell v. Widow, &c., a Dessaussure, 346, 387 ; Whilldin Y. Whilldin, Riley's Chancery, 205, 207; Caufman v. Cauffman, 17 Sergeant & Rawle, 16, 24, 25; Stump and others v. Findlay and others, 2 Rawle, 168, 174; Pretston V. t7bnes,9Barr, 456; George-^. Pas- sing, 15 B. Monroe, 558 ; Tiernan et al. V. Roland and Blackstone, 8 Harris, 430, 450 ; Smith v. Gould, 7 W. & S. 238 ; Palton v. Moore, 1 Casey, 468 ; Smith v. Gould, 34 Maine, 442 ; Glen v. Fisher, 6 John- son's Chancery, 33, 35 ; see 2 Smith's Leading Cases, 141, 7th Am. ed. [The principle has been applied under a great variety of circum- stances. In Wilbanks v. Wilbanks, 18 Illinois, 17, the testator devised land belonging to another, and in the same will bequeathed a mon- eyed legacy to the owner of the land, and it was held that the lat- ter must relinquish his own estate to the devisee, or forego the leg- acy, at least to an extent equiva- lent to the value of the estate ; Prawn et al. Fx'rs, &c., v. Pitney, 39 Illinois, 473. The same point was decided in O^Kelly v. Nicholson, 542 ELECTION. 45 Missouri, 159 ; and. Pemberton v. Pemberton, 29 Id. 409. In Peaves V. Garrett, 34 Alabama, 558, a hus- band devised land and slaves to his wife during life or widowhood. The slaves were her separate propertj"^, and it was held that if she had elected to take the land she would not only have forfeited it, but the slaves, on her marriage. In like manner a widow must choose be- tween a benefit conferred upon her by will and her right of dower, if the testator's intention clearly is that she should not have both ; Pemberton v. Pemberton, 29 Mis- souri, 413, Brown v. Pitney, 39 Il- linois, 4Y5. " If, as decided by this Court i in Wilbanks v. Wil- banks, 18 Illinois, It, a testator can cpmpel a devisee to give up his own land to another as a condition of his bounty, a fortiori, can a tes- tator compel a widow to relinquish her right to land not her own, but the title of which is to come through the testator, as a condi- tion to her enjoyment of a bequest which the law does not require him to make ; " Brown v. Pitney. So where the testator gave the complainant a slave belonging to his children by a former marriage, and at the same time made them his residuary legatees, it was held that the acceptance of the bequest precluded them from asserting their title to the slave, Pemberton V. Pemberton.] It has been said, very justly^ that " the cases arising under the doctrine of election are suscepti- ble of being divided into two classes; first, those of election proper, where something is given by the will to one who is entitled to some other thing disposed of by the said will to another, in which case the devisee is put to choose whether he will take that which is given, or that to which he has a claim ; and secondly, those cases in which there is an express condition annexed to a devise, with which the devisee must comply, or not take the property ; in which case he is to elect whether he will comply with the condition or give up the prop- erty ; but in which, if he does not comply with the condition, he violates none of the provisions of the will as to any other person than himself;" Hall v. Hall, 2 M'Cord's Chancery, 269, 306. This distinction undoubtedly exists, and, in some parts of this subject, is important. Wherever there is in the will a clear intention that a legatee or devisee shall not take but upon terms of giving up some- thing else, there is a condition, affecting the title of the party to the legacy or devise ; but election in equity, depends upon the incon- sistency of holding both interests, even though the testator may not have been aware, that his will would give rise to any such incon- sistency, and therefore may not have contemplated that the party should be put to an election. In all cases, the intention to create an election, or the intention to make such dispositions as raise an election, — that is to say, the construction upon which the party is put to an election, must be clear upon the face of the will : a party will never be put to an election NOYS V. MORDAUNT. — STREATFIBLD V. STREATFIELD. 543 upon a doubtful construction ; M'JElfresh, Adm'r, v. Schley and Barr, 2 Gill, 182, 201, 202 ; Jones V. Jones, 8 Id. 139 ; Havens v. Sackett, 5 New York Reports, 365 ; Watson v. Howard, 1 Mary- land, Ch. 112; Penna. L. Ins. Co. V. Stokes, 11 P. F. Smith, 136 ; and the intention must be derived from the will itself, and not from evi- dence dehors ; City of Philadelphia V. Dams, 1 Wharton, 490, 502; Timberlake v. Parish's Hx'or, 5 Dana, 345. [The bar of an election is, in fact, in the nature of an es- toppel, and, like every estoppel tending to defeat rights T^^hich would otherwise be valid, and con- sequently operating as a forfeiture, should be certain in every mate- rial particular, both as it regards the duty or obligation to elect, and the act by which the election is alleged to have been made ; Jones V. Jones ; Fitts v. Cook, Gushing, 596 ; see 2 Smith's Lead- ing Cases, 453, 139, 1th. Am. ed. And the inconsistency which puts a party to an election, must arise out of the same instrument; and therefore, if one devises certain land to A. and certain other land to B., and afterwards by deed, con- veys to B. the land formerly de- vised to A., B. is not put to an election, but may hold both the land devised, and that conveyed ; Thompson v. Thompson, 2 Strob- hart, 48. It results from a cognate princi- ple that one who accepts the bene- fit of a transaction cannot set it aside. If A. sells B.'s land, and B. accepts the purchase-money, he is as much bound as if he had set his hand to the deed; 2 Smith's Lead. Oases, 142, T Am. ed. The case is substantially the same where the money comes to B. indirectly through a residuary bequest from the vendor. In Gable v. Daub, 4 Wright, 21'r, the testator devised " all the remainder of my real es- tate that I may die possessed of," to his wife. He subsequently ac- quired lands which did not pass by his will. These were sold by her after his death for $1,500. The purchaser paid part in cash and gave a bond for the residue. The widow died not long afterwards, having bequeathed her personal estate to the heirs of the testator, and it was held that their election to accept the bequest confirmed the title of the purchaser. " A general devise of the testa- tor's real estate has always been held to show an intention to give what strictly belongs to him and nothing more, even if the testator had no real estate of his own on which the devise could otherwise operate ; Jarman on Wills, 393. It will not, therefore, constitute a case of election, although the testa- tor had no title or pretence of title to any other than the land in ques- tion ; Miller v. Springer, 20 P. F. - Smith, 269 ; and evidence, dehors the will, is not admissible to show that he considered the estate as his, and intended to bestow it on his devisee."] It is universally agreed in this country, that the principle upon which equity enforces an election, in a case where there is not a con dition, is compensation, not for- feiture. If a benefit is given by a 544 ELECTION. will, and some property or interest of the legatee is given to a third person, if the first legatee elect to retain his property, he does not forfeit all benefits given him by the will, but is only bound to make compensation to the disappointed partjr according to the value of the interest given; Key v. Griffin^ 1 Richardson's Eq. 6Y, 68; Stump and others v. Findlay and others^ 2 Rawle, 168, 1T4; Caujfman v. Gauffman, 11 Sergeant and Rawle, 16, 24, 25 ; City of Philadelphia v. Davis, 1 Wharton, 490, 502. See Tiernan et al. v. Roland & Black- stone, 3 Harris, 430, 451 ; Wil- banks v. Wilbanks, 18 Illinois, 1*7. [The equity is worked out by sequestering so much of the bene- fit intended for the refractory de- visee, as may be requisite to com- pensate those who are prejudiced by his election to take against the will ; Mascall v. Goodall, 2 Disney, 202; Sander's Appeal, 4 P. F. Smith, 314. Lapse of time, and still more, the introduction of third parties as purchasers, on the faith of the acquiescence in the validity of a will implied in accepting a benefit under its provisions, may, never- theless, render an election abso- lute, and preclude the right to avoid it by a tender of compen- sation ; Fulton v. Moore, 1 Casey, 468, 476. The ordinary method of proce- dure is to sequestrate the gift in- tended for the recalcitrant devisee, until the rents, issues, and profits compensate the beneficiar3' whom he has disappointed by electing to take against the will. Where, how- ever, the rejected estate is mani- festly inferior in value, the delay incident to sequestration would be prejudicial to one party without any corresponding advantage to the otlier, and equity will decree a convej'ance, or a recovery may be had in an equitable ejectment un- der the mixed jurisprudence of Pennsylvania. In Lewis v. Lewis, 1 Harris, 79, the testator devised land belonging to himself to the defendant, and other land to which the defendant was entitled as ten- ant in tail, to the plaintiff. The defendant entered into possession of the latter tract, and it was held that the plaintiff might maintain ejectment for the former, which was not worth nearly so much as the other. Gibson, C. J., said : " Though where the land elected is of inferior value to the land re- jected, compensation may be the rule in equitj"-, which compensa- tion our Orphans' Court, under the acts of the 29th March, 1832, and of 16th June, 1836, may en- force by sequestration, or other process; yet where the value of the land rejected is inferior to the land taken, the land re- jected is forfeited by the act of election, and may be recovered in ejectment. All the authorities show that equity relieves, in a case of the kind, on the ground of trust. The devise passes the legal title ; but a chancellor holds the recusant devisee bound, as a trustee, to compensate the devisee he has dis- appointed. Being seized of the legal estate, he is, in the words of the statute last quoted, a trustee, possessed of and accountable for NOYS V. MORDAUNT. — STREATFIELD V. STREATFIELD. 545 the real estate of a decedent; and were this purely a case for com- pensation, the remedy would, un- doubtedly, be by sequestration. But the estate of the refractory devisee, in this instance, is found in the special verdict, to be worth twice as much as the estate he re- jected ; and it is impossible to con- ceive that the disappointed devisee could get more than compensation from it. As a general principle, the weight of authority decisively inclines to the side of compensa- tion, and not forfeiture ; and the writ of sequestration is used to prevent the disappointed devisee from being in reality a gainer by what was apparently his loss. After compensation is made, pur- suant to it, the surplus remains to the devisee ; but why employ it, when there cannot, by any possi- bility, be a surplus ? Where the disappointed devisee must be a loser, in any event, it would be useless to keep the property locked up in the hands of a seques- trator, who must be paid for his services. The profits from it would not be equal to the profits of the estate, of which the complainant had been deprived ; and the prop- erty would remain sequestered for- ever. I confes^hat I have found no precedent for such a case ; but it appears to me to be one, not of compensation, but of forfeiture. Even Lord Eldon, who maintained— the principle of compensation as a general one, admitted in Tibbets v. Tibbets, 10 Vesey, 666 ; and Green V. Green, lb. 668, that there are cases to which it is inapplica- ble. There would often, be no VOL. I 35 other remedy than a decree to con- vey." An election between legal rights, or by compulsion of law, as where a widow is bound by statute to choose between her dower at com- mon law in the land, and the right conferred upon her by act of assem- bly, is, as it would seem, irrevo- cable, except on the ground of fraud or undue influence ; Buist v. Somers, 1 Richardson's Eq. 281.J Equitable election usually arises when a testator gives to A. certain property, real or personal, and in the same will gives a third party certain property belonging to A. ; in this case, A. must elect between the two ; if he accepts the legacy or devise to himself, he must con- firm and carry out the gift of his own property to the third party ; and if he file a bill for the legacy, equity will compel him to make his election within a certain time, and to execute such conveyances as will give effect to the gift of his jDroperty which the testator has made : and this applies equally to the case where a testator disposes of prop- erty belonging to his wife in her separate right ; Field v. Eaton, 1 Devereux's Equity, 283, 286 ; Wil- son V. Amy, 1 Devereux and Bat- tle's Equity, 376; IP Queen v. McQueen, 2 Jones's Equity, 16; Upshaw V. Upshaw and others, 2 Hening & Munford, 381 ; Kin- naird, JSx'r, &c. v. Williams^s Adm'r et. al., 8 Leigh, 400 ; Brown V. Bicketts, 3 Johnson's Chancery, 553, 556 ; Allen v. Getz, 2 Penrose and Watts, 311, 323; Breston v. Jones, 9 Barr, 457 ; Hall v. Hall, 1 Bland, 130, 134 ; Craig v. Craig 546 ELECTION. and Hart, 1 Dana, 1,5; Ux'rs of Gogdell v. The Widow, tdc, 3 Des- saussure, 346, 388 ; M'Ginnis et al. V. M'Ginms, 1 Kelly, 496. "Ever since the case of Jfoys v. Mor- daunt," said Gaston, J., in Melchor V. Burger, 1 Devereux and Battle's Equity, 634, " it has been holden for an established principle of equity, that where a testator by his will confers a bounty on one person, and makes a disposition in favor of another prejudicial to the former, the person thus prejudiced shall not insist upon his old right, and at the same time enjoy the bounty conferred by the will. The intention of the testator is appa- rent that both dispositions shall take effect, and the conscience of the donee is affected by the condi- tion thus implied, that he shall not defraud the design of the donor by accepting the benefit, and dis- claiming the burthen — giving ef- fect to the disposition in his favor, and defeating that to his preju- dice. The donee is therefore put to his election, either to take the thing given, and confirm the will ; or retaining what is his indepen- dently of the will, to surrender to the disappointed devisees or lega- tees, so much of what the testator has given him, as will compensate them for the disappointment." It makes no difference, in regard to election, whether the testator knew that the property he attempted to dispose of, belonged to another, or whether he mistakenly supposed that it was his own ; M' Ginnis et al. V. M'Ginnis, 1 Kelly, 496, 503 ; Stump and others v. Findlay and others, 2 Rawle, 168, 114. But the intention to dispose of prop- erty which calls for an election, must be clear and unequivocal, both in respect to the particular property which is the supposed subject of disposal, and in respect to the design and attempt to dis- pose of it. " To put the legatee to his election," said RufHn, C. J., in Wilson V. Amy, 1 Devereux and Battle's Equity, 316, 371, "it is necessary that the instrument should clearly ascertain the prop- erty given, and that the gifts them- selves should be in such terms, as are inconsistent with the notion that the donee can keep his own estate, and also take, under the will, without defeating the inten- tion of the testator. It is, in other words, in the nature of a condi- tion, and generally speaking, tbat condition is implied from the na- ture of the several dispositions ; and where the implication is not plain thereform, and almost neces- sary, such a condition cannot be implied, because no one in a doubt- ful case, is to be taken as intend- ing to give away what belongs to another." " The intention of the testator, that such devisee should be put to an election," said Bland, C, in Hall v. Hall, 1 Bland, 130, 135, " must be either distinctly ex- pressed, or very strongly mani- fested by facts and circumstances ; for, no one can be stripped of his -rights by guessing or conjecture. It must distinctly appear, that the claim is irreconcilable and incom- patible with the devise ; or that to sustain the claim, would throw the testator's estate into a channel en- tirely different from that in which NOYS V. MOEDAUNT. STRBATFIELD V. STREATFIELD. 547 he had placed it hy his will. To prevent such a perversion, or dis- appointment of the express, or ulearly manifested intention of the testator, a court of equity will, by a strong operation of its powers, put the devisee to an election. But there is no instance of a de- visee being made tO' elect upon slight presumptions or inferences ; or where the will might have its full effect without impairing the obligation of the claim ; or where the testator has property, which is absolutely his own, answering fully to the description of that spoken of in his will, and by which all its expressions may be satisfied." Accordingly, it was held in that case, that a devise of all the testa- tor's " estate, real and personal," would not be considered as includ- ing an estate tail, so as to put the beir in tail to an election, though the testator might have disposed of the estate tail in his lifetime. [It is accordingly well settled, that to call the doctrine of election into operation, the gift to one party must be irreconcilable with the right or title which the other is asked to relinquish, and that an election need not be made if both can, in any way, stand together ; Havens v. Sackett, 15 New York Reports, 365. Thus, a devise to a wife, for life, of certain lease- holds, and " of all my funded property and estate whatsoever," followed by a bequest of " the sum of £300, 4 per cent.," to a third person, was held not to render it incumbent on the wife to elect be- tween resigning the leaseholds and giving effect to the bequest of the stock, although it appeared that the only stock owned by the testa- tor became the property of his wife by survivorship upon his death ; because the bequest did not refer with sufficient clearness to the funded property which the testator then had, and might have had reference to such stock as he might subsequently acquire ; Dam- mer v. Pitcher, 2 Mylne & Keene, 262 ; 5 Simons, 35. In like man- ner, where land was devised to A., and stock which belonged to him, bequeathed by the same will to B., A. was permitted to retain both the land and the stock, on the ground that the testator had a contingent interest in the stock, and might have meant to give the stock, only in case the contingency happened ; Havens v. Sackett,'] As election depends upon the apparent intent of the testator, at the same time that he gives to one legatee a portion of his own prop- erty, to give to another certain property, which, in fact, then be- longs to the former legatee ; it can never arise where the legatee had not at the time of the execution of the will, any interest or right in the latter property ; for, though a will, in respect of its legal opera- tion, takes effect only at the death of the testator, yet, in arriving at intention, regard must be had to the state of things existing at the time the will is made, and not to subsequent circumstances, unless they are expressly referred to and provided for ; accordingly, where a testator bequeathed a legacy to his daughter, and a certain slave to another person, and afterwards, 548 ELECTION. during his life, gave the slave to his daughter, it was held that the daughter was not obliged to elect between accepting the legacy and retaining the slave, but was enti- tled to both ; it was a mere ademption of the legacy of the slave in his will ; Long v. Weir, 2 Richardson's Equity, 283 ; see also Hall V. Hall, 2 M'Cord's Chancery, 269, 300. The principle of election, by im- plication, in equity, depends upon the circumstance that the same instrument which transfers or con- veys certain property of the testa- tor's to one legatee or devisee, transfers or conveys certain other property to another legatee or de- visee, and that the former benefici- ary, availing himself of the instru- ment in one particular, must not defeat its operation in another. But if the latter devise or bequest be invalid — if the instrument in respect to it be legally inoperative and void — the former beneficiary's retaining his own property does not defeat the operation of the instrument. If it be a will, it does not defeat the intention of the testator legally declared. Re- taining the subject of a transfer does not disappoint the instrument, if the law has already avoided and nullified the transfer. This occurs in the case of a devise of lands by a feme covert, or an infant, or under a will not executed so as to pass lands ; Kearney v. Macomh, 1 C. E. Greene, 189; Tongue v. Nuiwell, 11 Maryland, 212, 229 ; Jones V. Jones, 8 Gill, 197. The rule as above given, was cited and approved in Tongue v. Nutwell, 17 Maryland, 212, 219; and it was said to follow that where a testator after giving a legac}' to A., pro- ceeded to bequeath land to him with a limitation over to B. which was too remote, A. might accept the legacy without losing the right to contest the validity of the gift to B. In like manner, accepting a benefit in one state under a will will not preclude the devisee from disputing its operation in another, where it does not accord with the forms prescribed by law ; Jones v. Jones, 8 Gill, \9i*l. Thus in Jones V. Jones, the respondent was per- mitted to take an estate in Penn- sylvania under the will, and retain his own estate in Maryland against it; the instrument being so exe- cuted as to pass land in the former state, but not in the latter. In cases of this description, the intention that the devisee shall not have both estates, is not so expressed as to be a subject of legal cognizance. There is conse- quently no obligation to elect. Such an obligation maJ^ notwith- standing, result from a declared purpose qualifying the gift which takes effect. And this brings up the distinc- tion mentioned at the beginning of this note, between an election based upon a condition, and an election enforced by a court of equity upon mere implication ; a distinction, plain enough, ab- stractly, but of infinite difficulty in the application. It may, per- haps, be said, in general, that if it be expressly declared in the will, or if the dispositions in the will are such that it is plainly apparent, NOYS V. MORDAUNT. STREATFIELD V. STREATFIELD. 549 that the testator did not intend one devise or bequest to take effect un- less in the case of another's taking effect — if the several devises or be- quests are so connected together and dependent upon one another, that one cannot take effect accord- ing to the testator's intention without the other — then, it is a condition, and the legatee or de- visee accepting a benefit under such an arrangement must give effect to other devises forming an inseparable part of such an arrangement, even though these other dispositions are not valid and legal as devises. A case of mere equitable election arises where only the instrument, or the operation of it, wonld be disap- pointed in part; if the purpose, object, and actual intention of the testator in regard to making a particular devise or legacy would he violated and defeated, without the devisee's or legatee's carrying out such object and intention, it is a condition. This subject was dis- cussed in Melchor v. Burger, 1 Devereux and Battle's Equity, 634. The distinction is there stated between a devise or bequest to the heir, on condition of giving up the land to which he would be otherwise entitled, and a case of election proper, arising from equit- able implication. If a condition of giving up the lands to another be annexed to a legacy to the heir- at-law, though in a will not exe- cuted so as to pass lands, the heir cannot claim the legacy without complying with the condition ; but If the two things be not thus con- nected by a condition, but there be merely a bequest to the heir, and a devise of real estate to some other person, by one not having legal capacity to make audi a dis- position, or in a will not sufficiently executed for the purpose, though the instrument be operative in re- gard to personalty, there is no obligation on the heir to elect be- tween his right as heir, and the personal benefit bequeathed by the will; the attempted devise being nought, affords, it is said, no legal evidence of an intention to devise away. '^ If no more appears," says Gaston, J., in that case, " than a devise from the heir, and a bequest of personalty to him, in a will sufficiently executed to pass per- sonal, but not sufficiently executed to pass real estate, it is a good-will of the personalty ; it is no will as to the lands ; there is no implied condition of election ; and the heir may keep the lands descended, and also take his legacy. In Snelgrove et al V. Snelgrove et al., 4 Dessaus- sure, 2^4, 300, the same principle was decided. The law was held the same way in Kearney v. Mal- comb, 1 C. E. Greene, 189; and Jones V. Jones, 8 Gill, 19T. [In Jones v. Jones, a bill was filed in Maryland to en- force a devise which was invalid in consequence of not having been executed in the presence of three witnesses as the laws of that State require. It is not sur- prising that the court refused to go so far. The question whether the devise in Pennsylvania was subject to an implied condition that the devisee should comply with the provisions of the will) 550 ELECTION. was not directly under considera- tion. It is one thing to sustain an invalid gift, and another to mould a valid gift in accordance with the wishes of the testator, as deduced from the whole instrument. Al- though a chancellor cannot arbi- trarily dispose of property on which the will does not operate, he may affect that on which it does with a trust for the per- son who is prejudiced by the election of the devisee to take against the will. Such a case does not really present a conflict of laws. It is rather one where an intention which is not so ex- pressed as to be eflfectual under the laws of one State, may, not- withstanding, operate under those of another. In Vandyke^s Ap- peal, 10 P. F. Smith, 481, 489, the testator gave legacies to his daugh- ters, which absorbed the bulk of his estate in Pennsylvania, and by the same will, gave his real estate in New Jersey to his sons. The will was not so executed as to pass real estate in New Jersey. A bill was filed in Pennsylvania to com- pel the legatees to execute con- veyances in conformity witli the wishes of the testator, or else that so much should be withheld from the amount bequeathed to them, and appropriated to the devisees, as would compensate the latter for the loss of the land. Sharswood, J., said : " This is not a proceeding to recover a legacy charged on land, nor to compel a settlement or dis- tribution, but falls within the ad- mitted scope of the authoi'ity of a court of equity in cases of trust. The legal title being in the defend- ants, as heirs-at-law, that court, if it is a case of election, holds, them bound as trustees to com- pensate the devisees disappointed of the bounty intended for them by the testator. It may certainly be considered as settled in Eng- land, that if a will, purporting to devise real estate, but ineffectually, because not attested according to the statute of frauds, gives a legacy to the heir-at-law, he can- not be put to his election ; Hearle V. Greenbank,S Atk. 695 ; Thellus- son V. Woodford, 13 Ves. 209; Breckinbridge v. Ingram, 2 Ves. Jr. 652 ; Sheddon v. Goodrich, 8 Id. 48-2." " These cases have been recog- nized and followed in this coun- try : Melchor v. Burger, 1 Dev. & Batt. 634 ; M'Elfresh v. Schley, 1 Gill. 181 ; Jones v. Jones, 8 Gill, 19t ; Kearney v. Macomb, 1 C. B. Greene, 189. Yet, it is equally well established, that if the testa- tor annexes an express condition to the bequest of the personalty, the duty of election will be en- forced ; Boughton v. Boughton, 2 Ves. Sen. 12 ; Whistle v. Webster, 2 Ves. Jr. 36'7 ; Bex v. Wauchop, 1 Bligh, 1 ; M'Elfresh v. Schley, 1 Gill, 181. That thi^ distinction rests upon no sufficient reason, has been admitted by almost every judge before whom the question has arisen. Why an express con- dition should prevail, and one, however clearly implied, should not, has never been, and cannot be satisfactorily explained. It is said, that a disposition absolutely void is no disposition at all, and being incapable of effect as such NOYS V. MORDAUNT. STREATFIELD V. STRBATFIELD. 551 it cannot be read to ascertain the intent of the testator. But an ex- press condition annexed to the be- quest of the personaltj' does not render the disposition of the realty valid ; it would be a repeal of the statute of frauds so to hold." " How, then, can it operate any more than an implied condition to open the eyes of the court, so as to enable them to read those parts of the will which relate to the realty, and without a knowledge of what they are, how can the condition be enforced ? " " As to the question of election," said Lord Kenyon, while Master of the Rolls, " the cases which have been cited are certainly great au- thorities, but I must confess I should haye great difficulty in making the same distinctions, if they had come before me. They have said you shall not look into a will unattested, so as to raise the condition which would be implied from the devise, if it had appeared ; but if you give a legacy on condi- tion that the legatee shall give the lands, then he must elect. How- ever, I am bound bj^ the force of au- thorities to take no notice whatever of the unattested will, as far as re- lates to the freehold estate : Ca- rey V. Askew, 1 Cox, 241." " I do not understand," said Sir William Grant, " why a will, though not executed so as to pass real estate, should not be read for the purpose of discovering in it an implied condition, concerning real estate annexed to a gift of personal property, as it is admit- ted it must be read, when such con- dition is expressly annexed to such gift. For if by a sound construc- tion such condition is rightly infer- red from the whole instrument, the effect seems to be the same as if it was expressed in words:" Brodie V. Barry, 2 Ves. & Beams, I2t. So Lord Eldon declared, that " the distinctions upon this head of the law appear to be rather unsubstan- tial," and that " there are, undoubt- edly, these distinctions, and a judge, having to deal with them, finds a difficulty in stating to his own mind satisfactory principles on which they may be grounded :" Rex V. Wauchop, 1 Bligh. 1. And in another place : " The reason of that distinction, if it was res Inte- gra, is questionable." " With Lord Kenyon, I think the distinction such as the mind cannot well fas- ten upon :" Sheddon v. Goodrich, 8 Ves. Jr. 482. "Mr. Justice Kennedy has ex- pressed the same opinion : " When a condition is necessarily implied by a construction in regard to which there can be but one opin- ion, there can be no good reason why the result or decision of the court should not be the same as in the case of an express condi- tion, and the donee bound to make an election in one case as well as the other:" City of Philadelphia V. Davis, 1 Whart. 510. There is another class of cases in England wholly irreconcilable with this shadowy distinction ; for the heir at law of a copyhold was formerly put to his election, though there had been no surrender to the use of the will. This was previous to 55 Geo. Ill,, c. 192, 1 White & Tudor's Lead.ng Cases, 239, note ; 552 ELECTION. yet as Sir William Grant has re- marked, " a will, however exe- cuted, was as inoperative for the conveyance of freehold estates :" Brodiey. Barry, 2 Ves. & Beames, 130. " The precise point can never arise in this State, for happily our Statute of Wills of April 8th, 1833, Pamph. L. 249, wisely provides that the forms and solemnities of execution and proof shall be the same in all wills, whether realty or personalty." " The ease before us is of a will duly executed according to the laws of Pennsylvania, devising lands in New Jersey, where, how- ever, it is invalid as to the realty by not having two subscribing witnesses." " A court of New Jersey might hold themselves on these author- ities, bound to shut their eyes on the devise of the realty, and con- sider it as though it were not written, and so they have held ; Kearney v. Macomb, 1 C. E. Greene, 189. They might feel themselves compelled to say, with Lord Alvanley, however absurdly it sounds: " I canot read the will without the word ' real' in it, but I can say, for the statute enables me, and I am bound to say, that if a man by a will unattested, gives both real and personal es- tate, he never meant to give the real estate ;" Bucheridge v. In- gram, 2 Ves. Jr. 652. But a stat- ute of New Jersey has no such moral power over the conscience of a court of Pennsylvania, to prevent it from readii^ the whole will upon the construction of a bequest of personalty within its rightful jurisdiction. If a ques- tion could arise directly upon the title of the heirs-at-law to the New Jersey land, doubtless the court of any other State upon the well set- tled principle of the comity of nations, must decide it according to the lex rei sitae." " We are dealing only with the bequests of personalty, and the simple question is, whether the testator intended to annex to them a condition. If, without making any disposition whatever of the New Jersey estates, djdng intes- tate as to them, he had annexed an express proviso to the legacies to his daughters, that they should release to their brothers all their right and title as heirs-at-law to these lands, it is of course indubi- table that such a condition would have been effectual. We are pre- cluded by no statute, to which we owe obedience, from reading the whole will ; and, if we see plainlj' that such was the intention of the testator, from carrying it into ef- fect. Some cases have arisen in England upon wills disposing of English and Scotch estates, in which the judgments have not been harmonious ; nor can any general principle be extracted from them bearing upon this ques- tion. In Brodie v. Barry, 2 Ves. & Beames, 12'7, an heir-at-law of heritable property in Scotland, be- ing also a legatee under a will not conforming to the law in Scotland as to heritable property, was put to his election. By that law, a previous conveyance by deed was necessary, according to the proper NOYS V. MORDAUNT. — STKEATFIELD V. STREATFIELD. 553 feudal forms, upon which the uses declared by the will might operate. As by the law of Scotland, the heir-at-law in such a case was put to his approbate or reprobate (the Scotch law term for election), and it was very similar to a will of copyhold ; Sir William Grant con- sidering the law of both countries to be the same, felt himself relieved from the necessity of determining by which law the decision should be made. Dundas V. Dundas, 2 Dow & Clark, 349, was a case in the House of Lords from Scotland." " The will was formal according to the Scotch laws, but was invalid as to real estate in England under the Statute of Frauds. Yet the decision of the Court of Sessions, putting the English heir-at-law to his approbate or reprobate, was affirmed. This case is certaiuly in point, in favor of the position taken in this opinion. It is true, that in the judgment pronounced by Lord Chancellor Brougham, then but recently raised to the wool sack, it is not put on that ground. He assumes, that in England while a court of law would be precluded by the statute from looking at the disposition made of the realty, it was compe- tent for a court of equity to do so, and that the Court of Sessions in Scotland had only done what a chancellor in England had a right to do ; a distinction, it must be allowed, not adverted to in any of the previous cases, which were all in courts of equity." " In M' Call V. Jf ' Gall, Drury, 283, Lord Chancellor Sugden, held, that an heir-at-law of heritable - property in Scotland, who was also the devisee of real estate in Ireland, under a will duly executed as to the Irish, but ineffectual as to the Scotch estate, was bound to make his election. In the later case of Maxwell v. Maxwell, 13 Eng. L. & Eq. 443, which arose in England, the heir-at-law in Scotland was not put to his election, but dis- tinctly on the ground tliat the will, in the alleged disposition of the Scotch estate, had used only general words." If the will had mentioned Scotland in terms," said Sir Knight Bruce, Lord Jus- tice, " or the testator had not any real estate except real estate in Scotland, that might have been a ground for putting the heir to his election. The matter, how- ever, standing as it does, we are bound to hold that the will does not exhibit an intention to give or affect any property which it is not adapted to pass," and Lord Cran- worth concurred in this view. In this state of the authorities, we are clear in holding that we are not precluded by force of the New Jersey Statute of Frauds, from reading the whole will of the tes- tator, in order to ascertain his in- tention in reference to the bequest of personalty now in question. We are equally clear that it is a case of election. The intention of the testator does not rest merely upon the implication arising from his careful division of his prop- erty, among his children, in differ- ent classes, but he has indicated it in words by the clause : " I direct and enjoin on my heirs, that no 55i ELECTION. exception be taken to this will, or any part thereof, on any legal or technical account." It is true, that for want of a bequest over, this provision would be regarded as in terror em only, and would not induce a forfeiture ; Chew's Ap- peal, 9 Wright, 228. But, as has been often said, the equitable doc- trine of election is grounded upon the ascertained intention of the testator, and we can resort to every part of the will to arrive at it. " The intention of the donor or testator ought doubtless to be the polar star in such cases," says Mr. Justice Kennedy, " and wher- ever it appears from the instrument itself conferring the benefit, with a certainty that will admit of no doubt, either by express declara- tion, or by words that are suscep- tible of no other meaning, that it was the intention of the donor or testator that the object of his bounty should not participate in it, without giving his assent to everything contained in the in- strument, the donees ought not to be permitted to claim the gift, un- less they will abide by the inten- tion and wishes of its author ; City of Philadelphia v. Davis, 1 Whart. 510." " This, however, is not the only mode in which the equity of the case can be reached." " The doctrine of equitable elec- tion rests upon the principle of compensation, and not of forfeit- ure, which applies only to the non-performance of an express condition; 2 Madd. Ch. 49. Be- sides, no decree of this court could authorize the guardians of the minors to execute releases of their right and title to the New Jersey lands, which would be ef- fectual in that State. The alter- native relief prayed for in the bill is that which is most appropriate to the case." It was accordingly decreed that the executors should deduct such an amount from the legacies as would suffice to compensate the complainants, for the value of the shares of the legatees, in the real estate in New Jersey which would have vested in the complainants under the will if it had been duly executed. That the legacy, may be so in- separably connected with the de- vise, and dependent upon it, as to be in effect conditional, is also shown hyNuttY. NuUetal., 1 Free- man's Chancery, 128. There a de- vise of the testator's whole real and personal estate was made to one who was not the heir-at-law, by a will executed so as to pass personalty, but not so as to pass real estate, and legacies were charged on it payable to the heirs-at-law and others. It was held, that as the devise was of the fund, out of which, in part, the legacies were to be paid, the legacy was clearly upon an implied condition that the devise should take effect, and equity would give effect to it, and put the heir to an election. How far the doctrine, that a void devise does not put a party to an election applies to a devise of after-acquired lands, which in- dependently of special legislation, is an inoperative disposition, has been discussed in some of the NOYS V. MORDAUNT. STREATFIELD V. STREATFIELD. 555 American cases. In Hall v. Hall, 2 M'Cord's Chancery, 269, 299, 306, a testator, having made a provision for his wife in his will, expressly declared that it " should be talien in lieu and bar of all claim of dower, inheritance, or any other claim on her part," and the question arose whether slie was bound to elect in reference to her title as distributee of the after-ac- quired lands. The case, however, was decided against the necessity of election, on the ground that it did not sufficiently appear, that the testator had reference to after- acquired lands, when he inserted that clause ; the presumption, in fact, being that he referred only to the estate which he then had. The City of Philadelphia v. Davis, 1 Wharton, 490, 503, went upon the same ground, that it did not clearly appear that the testator was intending to dispose of after- acquired lands : but Kennedy, J., declared his own opinion, and that of a majority of the court, to be, that if the testator had intended to dispose of after-acquired lands, a legacy to the heir-at-law would not have made a case for election. He said, that where there is a de- vise or bequest on a condition, ex- press, or implied from a construc- tion that admits of no doubt or uncertainty, the devisee or lega- tee cannot take the benefit except upon the condition : but where the election arises only impliedly, from a legacy being given to one, and lands which would descend on him being disposed of to another, a devise that is inoperative and invalid, as of after-acquired lands, will not create an election. This doctrine, however, is entirely con- tradicted by M^Elfreah, Adm'r, V. ScMey and Barr, 2 Gill, 182. There, a testator devised and be- queathed to one of his sisters, A., all his real and personal estate, " of which he was then possessed, or of which he might be possessed at the time of his death ; " and to another sister, B., he gave certain real and personal estate. The question was, whether B. could claim this devise and bequest, and also her share as heir-at-law, in a certain farm purchased by the tes- tator after the execution of his will. The Court of Appeals held, that though the principle of elec- tion did not apply in the case of void wills, such as a will of lands of a feme covert or an infant, or one not executed so as to pass lands, those not being wills, and not capable of being read in evi- dence, and therefore not adequate to demonstrate intention ; yet, that it did apply wherever the will was properly in evidence, and the intention clearly indicated, though the devise was ineffective, as in case of a disposition of after-ac- quired lands. They said, that there might be an implied condi- tion in a devise or bequest to an heir-at-law, if the intent was plain and clear, as well as an express condition : and accordingly they held that B. was put to her elec- tion in respect to her claim upon the after-acquired lands. This last decision appears to put the sub- ject upon its true footing. An election will not be enforced un- less the intent to dispose of after- 556 ELECTION. acquired lands be clear and unde- niable : but if such an intent clearly appear, the matter stands exactly upon the same ground ■with every other disposition of property which the testator does not own. The opinion of Mr. Justice Kennedy in City of Phila- delphia V. Davis, 1 Wharton, 490, 509, that a devise of after- acquired lands is " void, invalid, and in effect no will with respect to those lands," seems to be an entire misconception. The devise of after-acquired lands is not void ; it is, legally, a valid devise ; the only difficulty is, that the testator has no power over the subject of the devise. It is simply a devise of property which the testator does not own and over which he he has no control. It is then ex- actly on the footing of every other attempt to dispose of prop- erty belonging to others. All such devises are inoperative , and yet they raise a case of election. The case where the instrument, or some particular part of it, is in- sufficient and legally void as k declaration of intention, and as a transfer of such rights as the tes- tator may have, is totally different from the case where the instru- ment is in all respects unexcep- tionable in law, but a part of it finds no subject upon which it can operate effectively. The remarks of Sir W. Grant, M. R., in Kidney v. Coussmaker, 12 Vesey, 136, 154, referred to in the preceding note, that the doc- trine of election is inapplicable to creditors, if it is to be regarded as the announcement of a general principle, is opposed by decisions in this country, and seems not to be well founded. It lias been de- cided in Pennsylvania, that credi- tors taking a benefit under an in- strument making provision for them, cannot object to any of the conditions or terms of the instru- ment, nor to any provisions which it makes to other persons. In one case, a debtor mortgaged property to three distinct creditors, two of whom (including the plaintiff) had advanced, at the date of the mort- gage, the amounts secured thereby, but the third had not then done so, but afterwards made up the defi- ciency by further advances. The plaintiff, after liaving joined in su- ing out the mortgage, claimed to appropriate the proceeds to the exclusion of the third creditor, who had been secured in the mortgage for advances not then made, on the ground that the plaintiff, by seeing the land apparently protected by this mortgage, might have been prevented from proceeding against it by other methods. " It must, perhaps, be conceded," said Gib- son, C. J., in delivering the opinion of the Court, " that a mortgage to secure future advances, which does not contain notice of the agree- ment, is void against creditors generally, because the land is ap- parently covered for more than it actually owes, and pursuit might thus be eluded, when a knowledge of a true state of the facts would invigorate exertion, and render success certain. Had the plaintiff claimed as a general creditor, the mortgage might not have entitled the others to a preference. But, so NOYS V. MORDATJNT. — STKEATFIELD V. STEEATFIELD. 557 far is he from having treated it as fraudulent, that he has elected to claim under it. Now, there is no rule of equity more universal in its application, nor more just in its consequences, than that a party shall not claim in repugnant rights, and that he who takes the benefit shall also bear the burden. The books are full of cases which show, that a party shall not contest the validity of an instrument from which he draws a benefit, or affirm it in part and disaffirm it in part. Here the plaintiff might have re- pudiated the whole transaction, and stood on his former rights: but, claiming to participate in the benefit, he can be admitted only on the terms prescribed by the mort- gagor. It cannot be believed that the mortgagor would have pre- ferred the plaintiff at the expense of the general creditors, on any other terms than having his asseut to the mortgage as a security for those future advances ; to withhold it now, would be a fraud on him." Irwin V. Tabb, IT Sergeant & Rawle, 419, 423. The same prin- ciple was enforced in Adlum v. Yard, 1 Rawle, 163, lYl. In that ease, the plaintiff, having taken a dividend under a voluntary gene- ral assignment of his debtor, sought to attach a certain interest as be- ina; the debtor's and not vested in the assignees, on the ground that the assignment was fraudulent for restraining the assignee from sell- ing for three years. That restric- tion, said Gibson, C. J., undoubt- edly brought the deed within the purview of the st. 13 Eliz. ; and "the plaintiff might originally have repudiated this assignment, but having taken a dividend under it, he shall not now question its validity. Where money is actually received, and on an implied condi- tion that the receiver shall not question the title, every principle of natural justice requires that the condition should be performed. But it is supposed that the doc- trine of election is inapplicable to creditors. There is no adjudica- tion in support of this, but Kidney V. Ooussmaker, from which, in the broad terms in which the princi- ple is predicated, I entirely dissent. That was the case of a devise of part of the estate to trustees for payment of debts ; and it was held that the creditors having obtained from the trust fund, satisfaction only in part, were not precluded from recourse to other parts of the estate which, passed by the same will. To this I entirely assent, because the creditors could not be viewed as legatees, and the setting apart of a portion of the estate for the sake of convenience, indicated no intention that the creditors should not be paid in the event of its falling short. The law, there- fore, would not imply a condition that the creditors should relin- quish their right on the rest of the estate. But the unqualified asser- tion of the Master of the Rolls, that the doctrine of election is ut- terly inapplicable to creditors, seems to be received with many grains of allowance, even in Eng- land. (1 Hovenden's notes to Yesey, 112.) In Irwin v. Tabb, we applied it to creditors claiming different debts, under the same 558 ELECTION. mortgage. In the case at bar, the debtor might prescribe the terms ; and the plaintiff, having received his dividend on an inherent condi- tion to permit the whole arrange- ment to take effect, it seems clear, that, subsequent to the period of acceptance, the debt attached as due to tlie assignor, -was, to every intent, vested in his assignees." See 2 Smith's Lead. Cases, 141, 7th Am. ed. The application of the doctrine of election to the case where a de- vise or bequest is made to the widow of the testator, and the es- tate of which she would be dowa- ble, is disposed of to others, has been much discussed ; and though the general principle^belonging to the subject is settled and unques- tioned, the bearing of it in particu- lar instances has led to some con- flict in the decisions. The general rule is agreed to be, that as dower is a legal interest vested in the wife bjr the act of the lav, para- mount to the will of the husband and beyond his control, of which matters he is presumed to be cog- nizant, and as every devise or be- quest imports a bounty, and does not naturally imply satisfaction of a pre-existing encumbrance, a gift to the wife in the will, is to be taken as a cumulative provision, unless the intent that it shall be in lieu and exclusion of dower, be demonstrated by express declara- tion, or by clear and manifest im- plication arising from the instru- ment's containing some provision incompatible with the right of dower ; Higginbotham v. Gornwell, 8 Grattan, 83 ; Lasher v. Lasher, 13 Barbour, 106 ; Tobias v. Ketchum, 32 New York, 319; Tooke V. Hardeman, 1 Georgia, 20. To establish such implied in- tention, the claim of dower must be inconsistent with the will and repugnant to its dispositions, or some of them. It must, in fact, disturb or disappoint the will. It is not enough that the matter is doubtful, or that the testator did not contemplate that his wife should take both estates : she will not be put to an election, unless it be clear that he distinctly contem- plated and designed that she should not enjoy both provisions, or unless he has made such a dis- position of his estate, that the as- sertion of dower would do violence to his will. This is, in substance, the principle established after a careful review of the cases, by Chancellor Kent, in Adsit v. Adsit, 2 Johnson's Chancery, 448 ; and however variously it may have been enforced, it is acdepted in the subsequent cases, as the true and sound rule upon the subject. See Smith V. Kinskern, 4 Id. 9 ; Wood V. Wood, 5 Paige, 59T, 601 ; Fuller V. Yates, 8 Id. 325 ; Sanford v. Jackson, 10 Id. 266 ; Havens v. Havens and others, 1 Sandford, 3.25, 330 ; Bull v. Church, 5 HiU, 206 ; S. C, 2 Denio, 430 ; Sheldon V. Bliss, 4 Selden, 31; Lewis v. Smith, 5 Id. 503 ; Van Arsdale v. Van Arsdale, 2 Dutcher, 404, 417 ; Gordon, Adm'r, v. Stevens, 2 Hill's Chancery, 46 ; Whilden v. Whil- den, Kiley's Chancery, 205 ; Brown V. Caldwell, 1 Spears' Equity, 322; Timberlake v. Parish's Hx'or, 5 Dana, 345 ; Stark et al. v. Hunton NOTS V. MORDAUNX. — STREATFIELD V. STREATFIELD. 559 et al., Saxton's Chancery, 217, 224, 225 ; Kinsey et al. v. Woodward, 3 Harrington, 459, 464. See also, Ambler and Wife v. Norton, 4 Hening & Munford, 23, 44; Snel- grove et al. v. Snelgrove et al., 4 Dessaussure, 274, 294 ; Webb v. Evans, 1 Binney, 565, 572 ; Ken- nedy V. Nedrow, 1 Dallas, 415, 418 ; Hamilton v. Buckwalter, 2 Yeates, 389, 392, 395 ; WCullough and Wife, 3 Id. 10,12; Clark y. Griffith, 4 Clarke, Iowa, 405. Ac- cordingly, in Missouri and Illinois, a bequest of personalty ■will not preclude the right to dower, unless there is something more than the bare existence of the gift to indicate that such was the de- sign ; Pemberton v. Pemberton, 29 Missouri, 408 ; Brown v. Pit- ney, 39 Illinois, 468. And the same rule applies where the testa- tor aliens part of his land during marriage, and gives all his estate, real and personal, to his widow, by devise, at his death ; Braxton v. Freeman, 6 Richardson's Eq. 35. " The right of dower," said John- son, Ch., in Brown v. Caldwell, 1 Spears' Eq. 322, 325, " is amongst the most favored by the law. It is put on the footing of life and liberty, and in looking through the cases, one is led almost to con- clude,' that common sense and sound reasoning have been violated in giving it effect. But there is less apparent impropriety in it, when it is recollected with what facility the husband may put his intention beyond all dispute, by de- claring that the provision made for the wife was intended to bar her right of dower." This presump- tion in favor of the testamentary provision being additional to the legal estate of dower, has been car- ried to the greatest extent in the New York cases. It should be remarked that previously to the case of Jdsit v. Adsit, the rule as to exclusion of dower had been laid down by Marshall, C. J., in Herbert and others v. Wren and others, 7 Cranch, 370, 378, in a much more moderate form, and made to depend rather upon a fair construction of the whole will, than upon any decided leaning in favor of the two provisions being concurrent ; and a similar view was taken in the recent case of Lord V. Lord, 23 Conn. 327. " It is," said Chief Justice Mar- shall, in Herbert and others v. Wren and others, 7 Cranch, 378, " a maxim of a court of equity, not to permit the same person to hold under and against a will. If, therefore, it be manifest from the face of the will, that the testator did not intend the provision it contains for his widow to be in addition to dower, but to be in lieu of it ; if his intention, discovered in other parts of the will, must be defeated by the allotment of dower to the widow, she must renounce either her dower, or the benefit she claims under the will. But if the two provisions may stand well together ; if it may fairly be presumed that the testa- tor intended the devise or bequest to his wife as additional to her dower, then she may hold both." See Pemberton v. Pemberton, 29 Missouri, 413. Under the general principle 560 ELECTION. above stated, as to the necessity of election by the wife, between the testamentary provision and dower, some of the applications which have occurred may be stated. It appears to be agreed, in all the cases, that if a legacy or an- nuity be given to the wife, and the lands be devised to trustees to be sold, or directed to be sold by executors, for any purpose what- ever, the lands continue subject to dower, both in the hands of the trustees, executors or heirs, and in those of a purchaser ; Hall v. Hall, 8 Richardson, 401 ; and this, whether the legacy be charged upon the fund arising from the sale of the lands, or be given from some whollj' distinct property. This may be considered as es- tablished by Adsit v. Adsit. There, a testator directed his personal es- tate and his farm to be sold ; and gave his wife a pecuniary legacy to be left in the hands of his ex- ecutors, to be paid to her, for her support, at any time, or at all times, as her need might require ; and gave her also, what household goods she might need, and gave certain legacies to his grand-chil- dren, and directed the residue also to be divided among his children and grand-children ; and it was decided, that the lands sold were subject to dower in the purchaser's hands; Adsit v. Adsit, 2 Johnson's Chancery, 448. The same point was again decided in Wood v. Wood. In that case, a testator had devised all his estate, real and personal, to a trustee to be sold, and directed, that after certain ex- penses were paid, the interest on one-third of the whole fand should be paid to the widow during her widowhood ; and in case of her marriage, one-third of that third. The Chancellor said, " Although the testator directs all his estate to be sold, and one-third of the proceeds to be invested for the use of his wife during her widowhood, it does not appear, by any neces- sary implication from the will it- self, that he intended this provision to be in lieu of dower in the real estate of which he died seised. The widow is not therefore obliged to elect between that provision and her dower. I am satisfied, from the examination of the Ameri- can, as well as the English cases, that a devise of all the testator's real and personal estate to trus- tees, to be converted into money, without any particular designation of the real property to^ be sold, and giving to the widow an an- nuity or other provision out of such mixed fund, is not, of itself, sufficient to show that the testa- tor intended her interest in the land, as tenant in dower, should be sold as part of the estate ; so as to make it necessary for the widow to elect between such dower and the provision contained in the will. The widow in the present case is therefore entitled to both." Wood V. Wood, 5 Paige, 59T, 601. These were cases in which the legacy was chargeable upon the lands sold, or was. payable out of the proceeds of them. Several cases have decided the same point, where real estate was directed to be sold, and a legacy, or even a devise. KOYS V. MORDAUNT. — STREATFIELD V. STRBATFIELD. 561 unconnected with the estate to be sold, was given to the wife. In Timberlake v. Farish's Ex'or, 5 Dana, 345, a legacy to the wife, and an order to sell all the residue of the estate, real and personal, and distribute it equally among the testator's children, were held not to be a bar to dower in the lands ; and the court declared that a provision by will for the wife is not presumed to be in lieu of dower, " unless the intention that it should so operate be expressed, or can be plainly inferred, or un- less any other interpretation would be inconsistent with the will ;" and that " a mere devise of tlie whole of the testator's remaining estate to others, or to be sold for their benefit, and even for that of the wife also, is not so inconsistent with her legal right to dower," as to make it a provision in lieu of it. In Whilden v. Whilden, Riley's Chancery, 205, a testator be- queathed one thousand dollars to his wife, and then directed the whole of his real and personal es- tate to be sold, and the fund in- vested for the support of his chil- dren during minority, and then divided among them. The legacy was held not to be a bar of dower. " The dower," said Cliancellor Des- saussure, " is a provision made by law, for the support of the widow. A legacy is a provision made by affection, for the better support of the wife. There is scarcely any man owning real estate, who does not know, in fact, that his wife is entitled to dower in that estate ; and the law implies the knowledge. The presumption, therefore, is, VOL. I. — 36 that when a testator bequeaths a legacy to his wife, he intends it as an addition to the legal provision of dower, unless he declares it to be in bar of dower ; and she shall be entitled to both. In some of the books it is said, that where the wife has two provisions, such as a legacy under her husband's will, and her dower, she shall be, in most cases, put to her election. But this is putting it quite too broadly— abd I apprehend the true rule to be, that a widow cannot be put to her election, unless by ex- press declaration or necessary in- ference, arising from the incon- sistency of her claim with the provisions of her husband's will. It is not that there is an additional provision made for the wife, by the will of the husband, which de- prives her of dower, or puts her to her election, for, in many cases, she is entitled to both. . . . There being no express declaration in the will, we must examine whether the legacy of one thousand dollars to the widow shows such an intent to exclude dower by plain and manifest intent. And, certainly, taken by itself, it does not show such a manifest intent ; else, in every case, any legacy to a wife might be said to raise the same implication. But it was urged, that the claim of dower would de- feat the other provisions of the will, which direct the sale of the real and personal estate, and the investment of the proceeds, for the support of the children of the testator. It will, certainlj^, lessen the amount to be invested, so as to form that fund, but it will not 562 ELECTION. defeat the arrangements and dis- positions made by the testator. They may, and will, all be carried into effect, diminished only by a small amount which he, himself^ carved for his wife. For this di- rection to sell and invest, is after the legacy of one thousand dollars to the wife, showing that he in- tended that amount to be first withdrawn from the fund, before investment. It is not clear of difficulties, but to the best of my j udgment, the widow is entitled to her dower and the legacy."' On appeal, these views were sustained. See also, to the same effect, Gor- don, Adm'r, v. Stevens, 2 Hill's Chancery, 46. In Kinsey et al. v. Woodward, 3 Harrington, 459, the testator bequeathed an annuity to his wife, and directed his executors to sell all his real and personal estate, and divide the proceeds among his daughters, and added, ''I do authorize and empower them, (the executors,) to convey to the purchaser of said real es- tate, a good and sufficient fee sim- ple title or titles, being of equal tenor with those by which I now hold the same ;" and it was de- cided that the intention that the lands should be sold free of dower was not sufficiently clear to put the widow to an election. A strong case, to the same purport, is Ful- ler V. Yates, 8 Paige, 325. There, a testator left his whole real and personal estate to three persons, (of whom his wife, during widow- hood, was to be one,) as trustees and executors for the purposes of his will, and directed that they should lay out certain lands into village lots, and sell them, as from time to time might be required ; and he directed that an annuity should be paid to the wife during life, and that she should have the possession and direction of certain other real estate, and for the pur- pose of keeping it in repair, should receive an additional annual sum ; and besides all this, gave her sundry other bequests. " The right of dower," said the Chancel- lor, " being a legal right, the wife cannot be deprived of it by a tes- tamentary disposition in her favor, so as to put her to an election, un- less the testator has manifested his intention to deprive her of dower, either by express words or neces- sary implication. It is not pre- tended in this case that the lan- guage of the will in respect to the provisions for the wife is at all inconsistent with her claim to dower in the residue of the testa- tor's real estate. The cases on the subject of implied manifestation of intention- to exclude the right of dower appear to establish this principle, that to put the wife to her election, the will must contain provisions which are wholly in- consistent with her claim of dower, in the particular portion of the estate to which the claim of dower is made. ... In the present case, although the testator has ex- pressly directed village lots to be laid out and sold, as they may be wanted, it is not necessarjr that each lot should be sold subject to the widow's right of dower. For a portion of the lots thus laid out may be assigned to her for her dower in the whole, and the rest NOYS V. MOEDAUNT. — STKEATFIELD V. STREATFIELD. 563 may be sold free from any claim of dower. Or she may be endowed of other portions of the real es- tate, leaving all that is wanted for village lots during her life entirely free and unincumbered. I there- fore conclude that, upon the set- tled principles of law on this sub- ject, the widow is entitled to dower in the testator's real estate, not- withstanding the bequests and de- vises in her favor in the will. Taking the whole disposition which the testator has made of his prop- erty into consideration, it can hardly be said he intended to give her dower in addition to the testamentary dispositions in her favor ; and probably if the ques- tion of dower had occurred to Mm, he would have inserted a pro- vision in the will declaring that the dispositions in her favor should be in lieu of dower in the residue of his estate. But it is not suffi- cient to bar her dower that he did not think on the subject ; as that would only indicate a want of in- tention either one way or the other. To exclude iher right to dower, which is given to her by law, the will itself must show that he probably did contemplate the subject, and intended that the tes- tamentary provisions for the wife should exclude her from all claim to dower, if she elected to take them." In like manner, a devise of the residue of the real and per- sonal estate of the testator to his widow, will not bar her dower in land mortgaged in his lifetime, nor compel her to resign the rights which she would have indepen- dently of the devise, as the price of claiming under it. Lewis v. Smith, 5 Selden, 503. See, also. Sample v. Sample et al., 2 Yeates, 433. From these cases, the prin- ciple may be deduced, that if a legacy or devise, of whatever amount be given to the wife, and subject to this, the whole real es- tate, or the residue of the real es- tate, be directed to be sold, for any purpose, the legacy or devise will not be taken to be in lieu of dower. See, however, the remark of Marshall, C. J., in Herbert and others v. Wren and others, 7 Cranch, STO, 3*79, as to the pre- sumption afforded in such a case, by a direction to sell the residue for the payment of debts. [This remark was cited and relied on in Morris v. Clark, 2 Stockton's Ch. 51, and a devise of all the testa- tor's real estate to his executor, with a direction that it should be sold and tlie proceeds distributed as provided for in the will, held to show that a declaration that the acceptance of a legacy bequeathed to the wife, should debar her from any further demand on the estate, meant the estate generally, and not merely that portion of it which consisted of personal property.] If there be a devise or bequest to the widow, and a devise of a general residue of real estate, not to be sold, but to be enjoyed by the devisee, an intent that the pro- vision for the wife shall be in lieu of dower, cannot be implied ; Brown v. Caldwell, 1 Spears' Equity, 322, 325; Ravens v. Havens and others, 1 Sandford, 325, 329. " I have not been able to find any case," said Johnson, 564 ELECTION. Ch., in Brown v. Caldwell, "in which it has been held, that any- general disposition of the estate would raise the implication." And even if thedevise is specific, though that naturally imports that the de- visee is to take the whcjle estate, j'et, in an ordinary case, as where the devisee is a brother or sister merely, or a child otherwise pro- vided for in the will, the intention to exclude dower will not be in- ferred ; Straham v. Sutton, 3 Vesey, 249 ; Kennedy v. Nedrow, 1 Dallas, 415,418; though there is an intimation to the contrary in Brown v. Caldwell. Where, how- ever, after a provision for the wife, there is a specific devise of real estate to a person whom the testa- tor is bound to provide for, and who is obviously intended to be a principal object of the bounty of the will, as where the devise is for the support of an infant child, otherwise unprovided for, and is not more than sufiicient for that purpose, the intention that the bounty to the child should not be invaded and impaired by a claim of dower may very fairlj^ and reasonably be implied. And the case of Herbert and others v. Wren and others, T Cranch, 310, 378, appears to be an authority for that principle. There, a testator devised to his wife certain real es- tate for life, with remainder to his three daughters, and also be- queathed to her personal estate ; he then devised to his two sons the premises in which dower was claimed, which were then under lease at an annual rent of £140, and directed this rent to be appro- priated to the education and main- tenance of his children ; and other lands he ordered to be sold for the payment of debts. " The only fund provided for the maintenance and education of his five children," said Marshall, C. J., in delivering judgment, " is the rent of £140 per annum. Since he has made a dis- tinct provision for his wife, the presumption is much against his intending that this fund should be diminished by being charged with her dower." Upon this, and some other less important grounds, a majority of the Court were of opinion that the testator intended the provis'ion for the wife to be in lieu of dower. Another case, under this per- plexing subject, is where real estate is devised to a particular person, charged with an annuity in favor of the widow. Something may de- pend upon the extent to which the devisee is apparently the object of the testator's bounty, and in con- nection with' that, upon the appar- ent sufficiency of the devised estate, in the view of the testator, to raise the annuity and dower, and also leave a beneficial interest in the devisee. But the distinction upon which, really, the cases haA'e gone, both in England and in this countrji^, is, between a rent-charge, or an annuity in the nature of a rent-charge, issuing out of the spe- cific land in which dower is cl aimed, and chargeable upon no other fund, and an annuity, which, though chargeable on the land, is primarily payable out of some other fund. The English cases are to be recon- ciled upon this difference : that a NOYS V. MORDAUNT. — STRBATFIELD V. STREATFIELD. 565 rent-charge, or an annual sum pay- able to the wife out of the particu- lar land, and out of nothing else, is necessarily repugnant to the en- joyment of dower in that land, upon the ground stated by Lord Camden in his very able judgment in Villa Real V. Lord Galway, 1 Bro. C. C. 292, n., that an entry upon the land, as dowress, necessarily extinguishes the rent-charge, at least pro tanto; but if the annuity, though chargeable on the dower land, is payable also out of other funds, and especially if it is pay- able also out of personal estate, which then becomes the primary fund — in other words, if it be not a rent-charge, but properly an an- nuity — there is no such inherent and necessary repugnancy between the enjoyment of that annuity and the assertion of dower, as to put the widow to an election. All the cases in which the annuity has been held to be in lieu of dower, were cases in which it was, in fact, a rent-charge, and payable out of no other fund than that land in which dower was claimed. Those cases are Arnold v. Kempstead, Ambler, 466 ; S. C , 2 Eden, 236 ; Villa Seal V. Lord Galway, 1 Bro. C. C, 292, n. ; S. C, Ambler, 683 ; Jones V. Collin, Ambler, 130 ; Wake v. Wake, 3 Bro. C. C. 255. On the other liand, where the provision for the wife is payable out of other funds also, especially if out of per- sonal estate, in which case it is strictly an annuity, and not a rent- charge, the cases have held that dower is not barred. The first case is Fitts V. Snowden; of which the only report is the following note in 1 Bro. C. C. 292, n.— " Devise to his wife of an annuity of £50 a year, payable out of his copyhold and his freehold messuages, with clause of entry and distress, to be made good out of his personal estate. And, subject to the annuity, he gave his freehold messuages to his three children." Lord Hardwicke, determined the widow to be enti- tled to both the dower and the an- nuity. Here, not only were the copyholds liable, in addition to the freeholds, and perhaps primarily liable, but the annuity was charge- able also on the personal estate ; so thatthe reasoning of LordCamden, in Mr. Villa Beal's case had no application, since if the widow's entry on the freeholds had inter- rupted her dower, it would have been made good out of the personal estate. In Foster v. Cook, 3 Bro. C. C. 34T, the annuity was payable out of real and personal estate, de- vised to trustees, so that the per- sonal estate was liable in the first instance. In French v. Davis, 2 Vesey, Jr., 5'r2, the annuity was payable out of a fund composed of the produce of the real and personal estates mixed together. Greatorex V. Gary, 6 Id. 615, is the same case as Foster v. Coo^, and decided upon it. In Strahan v. Sutton, 3 Id. 249, the annuity was payable only out of personalty. There is, therefore; perhaps, no such contradiction between Lord Hardwicke's and Lord Thurlo w's decisions on the one hand, and those of Lord Camden, Lord Northington and Mr. Justice Buller on the other, as is supposed by Chancellor Kent in Adsit v. Adsit, and by some other writers. 566 ELECTION. The late English cases carry out the same distinction. On the one hand, in Holdich v. Holdich, 2 Young & Collier's 0. C. 18, the bequest was of an annuity charged generally with other legacies upon both real and personal estate, and therefore payable primarily out of the personalty. In Bowson v. Bell, 1 Keen, TBI, though the freeholds were devised subject to the an- nuity, copyholds were clearly in- tended to be the primary fund for its payment. On the other hand, in Boadley v. Dixon, 3 Russell, 192, the annuity was '' to be issuing out of the estate at S.," and was therefore a rent-charge strictly, payable out of that land only : and the remarks of Lord Lyndhurst in that case tend decidedly to sustain Lord Camden's view in Villa Seal V. Lord Galway. Norcott v. Oor- don, 14 Simon, 258, does not over- rule Arnold v. Kempstead, nor concern the same point. Harrison V. Harrison, 1 Keen, 765, belongs to a different class of cases ; there, the provision for the wife was neither a rent-charge, nor an an- nuity charged on land ; lands were devised to trustees to pay an an- nuity out of the rents and profits ; and of course the considerations in Villa ReaVs case did not apply. The cases in this country support the distinction above mentioned ; that an annual provision for the widow, payable out of personal and real estate, is not a bar to dower, in that real estate, but such a provision issuing out of the real estate only, is : see Lord v. Lord, 23 Conn. 32T. The former point is decided in Smith v. Kniskern, 4 Johnson's Chancery, 9. There, a testator possessed of real and per- sonal estate, gave his wife several legacies, '' and her comfortable support and maintenance out of his estate, to be, from time to time, rendered and paid to her by his executors, and the privilege and use of one room in his dwelling-house during all such time as she should continue to be his widow, and no longer ;" and after giving other legacies, left the residue of his estate to his two daughters. " The charge of a ' comfortable support and maintenance' falls, probably, upon the real estate as well as the personal," said the Chancellor. "But the latter ought to be first applied ; and as the executors were directed to render the maintenance from time to time, and as no au- thority is given to them over the real estate, it would seem that the testator had a particular reference to the personal estate, in making that provision for his wife. I do not perceive, however, that the provision destroys the right to dower. There is no inconsistency between the two claims, even sup- posing the charge for maintenance to rest upon the real estate. From the large and valuable real estate set forth in the pleadings, and ad- mitted, it is quite apparent that the real estate is much more than adequate to furnish the support and the dower. There is nothing repugnant in the operation of the two claims ; and the assertion of the right of dower will not disturb or defeat any provision in the will. . . . The rule is, that the widow takes both provisions, un- NOYS V. MOUDAUNT. — STREATFIELD V. STREATFIELD. 567 less the estate is insufficient to support both, or such an incon- sistency appears between the pro- visions in the will and the dower, as to make the intention clear and indubitable, that both provisions were not to be taken." The other branch of the distinction is estab- lished in White v. White, 1 Harri- son, 202, 211. The testator, in that case, bequeathed to his wife all the property which she had be- fore marriage, and further ordered that she should have one room in his dwelling-house, " and a com- fortable maintenance out of his real estate^ during her natural life or widowhood:" and then devised his real estate to his two sons. It was decided that the maintenance was intended to be in lieu of dower. " If the demandant shall be allowed to recover dower in the real estate," said Ford, J., in delivering the opinion of the court, " it will dis- turb and prevent the testator's own provisions from being carried into effect. He has provided for her a comfortable maintenance, and has made it a charge upon his whole real estate, so that it goes with the estate as a burden, into the hands of his two sons : they are to fur- nish the maintenance, and in con- sideration of it they are to have the whole estate. Now, if the widow takes one-third of it for her dower, and they obtain only two- thirds of it during her lifetime, it whplly deranges the testator's set- tlement, which was that they should have the whole estate, and be liable in respect of it, for the whole of her maintenance. The will can never be executed according to his intent, for the sons will have only two-thirds of what the testator in- tended ; and the uttermost for the widow would be only two-thirds of the maintenance provided and in- tended for her. The testator's settlement would be broken up, and some other would have to be substituted in the place of it. Either the widow must lose her whole maintenance, or it must be apportioned on the sons according to the proportional part of the lands they obtain. If she, by an act of her own, takes one-third of the land away from her sons, does she not discharge them from any maintenance ?" If a man having a rent-charge, purchases part of the land, out of which the rent issues, the whole reijt is thereby extinguished, because wilfully and by his own act, he has prevented the operation of the charge on the land, according to the original grant." Litt. sec. 222; Gtilb. on Rents, 152. If so, her claim of dower contravenes the will by de- feating the very maintenance the testator has provided for her. If it be said that dower accrues by operation of law, not by her own act, and therefore that the charge shall not be entirely lost, but ap- portioned on the sons, according to the estate they actually receive, even this will defeat the disposi- tion made by the testator, accord- ing to which the sons were to have all the land, and to furnish the whole of the maintenance. This is quite the reasoning of Lord Camden, in his judgment in Villa Real's case. In Addams v. Heffer- nan, 9 Watts, 530, 541, it was de- 568 ELECTION. eided that if a rent-charge or rent- seek, or annuity payable out of land, be given to one upon whom in common with others the land descends as heirs-at-law, the rent or annuity is extinguished pro tanto as the annuitant tooli as heir- at-law. In further support of this principle, the case of Duncan v. Duncan^s jEx^rs, 2 Yeates, 302, may be referred to. Here a tes- tator directed that all his estate, both real and personal, should be sold to the be t advantage, as soon as convenient, and gave to his wife the interest of one-third part of the price of his real estate when sold, for her support dviring her natural life ; and it was held that the widow was put to her election. The court said, " Though the devise to the widow is not ex- pressed ' to be in lieu and satisfac- tion of dower,' yet it is absolutely inconsistent with and repugnant to such claim. Ambl. 461, 682, 730. She could not possibly have the interest of one-third of the amount of sales of the whole land during her life, and at the same time hold one-third part of it un- sold for her benefit." In like man- ner a devise of all the testator's real and personal property to trus- tees, with directions to pay two- thirds of the rents and profits to his^ children, and the remaining third to bis widow during her life, followed by a direction that the real estate should be sold after her demise, was held, in Savage v. Burnham, 11 New York R. 562, to debar the right of dower. A devise to the widow, of an estate for life in certain property, and of the residue of the real estate to others, will not, by im- plication, exclude her from dower in the residue ; Havens v. Havens and others, 1 Sandford, 325. But upon the question whether a devise to her for life, or during widow- hood, in particular lands, or in all the testator's real estate, will ex- clude dower in the same lands in which she has the devise for life or during widowhood, the decisions are in conflict. In New York it has been decided that a devise of all the testator's property, real and personal, during widowhood, or during widowhood and the minority of her children, and then to be divided among the children, is not a devise in lieu of dower, so clearly as to put the wife to an election: Sandford \. Jackson, \{> Paige, 266 ; Bull v. Church, 5 Hill, 206 ; S. C, affirmed on error ; Church V. Bull, 2 Denio, 430. In some other States, however, the decisions have been the otherway : and it is held that a devise to the wife during widowhood, or during life, is an implied exclusion of dower in the same lands, because the two estates cannot exist to- gether ; especially if coupled with a direction that upon her re-mar- riage, all her interest in the testa- tor's estate shall cease ; Wilson, Ex''r, V. Hayne et ux., Cheves' Equity, 37, 40 ; Cast-on v. Caston, 2 Richardson's Equit^r, 1, 2 ; Cun- ningham V. Shannon, 4 Id. 135 ; Stark et al. v. Hunton et al.. Sax- ton's Chancery, 217, 224, 225; Hamilton v. Buckwalter, 2 Yeates, 389, 392 ; Greacraft and Wife v. Dille, 3 Id. 19 ; see, however, NOTS V. MORDAUNT. — STREATEIBLD V. STRBATFIELD. 569 Evans v. Webh, 1 Yeates, 424 ; 1 Binney, 565 ; M' Cullough and Wife y. Allen and Wife, 3 Yeates, 101 Ghappel v. Avery, 6 Connecticut, 31 ; Smith v. Bone, 1 Bush. 36*7. The principles relating to a testamentary provision being in lieu of clowerj and to the widow's election between such a provision and dower, appear to be in all re- spects the same at law as in equity. See Van Orden v. Van Orden, 10 Johnson, 30, 32 ; Jackson v. Churchill, 1 Cowen, 28T ; Bull v. Church, 5 Hill, 206; S. C, af- firmed on error, 2 Denio, 430 ; Pickett v. Peay, 3 Brevard, 545. It was said, indeed, by Thompson, J., in Larrabee and Wife v. Van Alstyne, 1 Johnson, 30T, 308, that to render a provision for the wife by will, a legal bar of dower, it must consist of lands given or as- sured to her for life, and that a sum of money or other chattel in- terest, given by will, in lieu of dower, will, if accepted, be only an equitable bar: see also Jones v. Powell, 6 Johnson's Chancery, 194, 200 ; but this distinction is now exploded, and it is held that any testamentary provision, clearly in- tended to be in lieu of dower, if accepted deliberately, and under- standingly, will be a bar, at law, to claim for dower ; Kennedy v. Mills, 13 Wendell, 553 ; Tobias v. Ketchum, 32 New York, 319 ; Worthen v. Pearson, 33 Georgia, 385 ; Davison v. Damson, 3 Green, 235. Statutory provisions in re- spect to the relation between dower and a testamentary devise or bequest to the widow, have been introduced into the law of several of the States. In North Carolina, and Tennessee, any provision for the widow in the will bars her of dower, unless within a certain time she dissents from the will ; see Craven v. Craven, 2 Dever- eaux. Equity, 338 ; Bray v. Lamb, Id. 372 ; Reid v. Campbell, Meigs, 378 ; M' Daniel v. Douglas, 6 Humphries, 220. In Massachu- setts, Maine, Ohio, and Alabama, any testamentary provision is a bar to dower, unless the widow elect within six months after pro- bate to waive it and be endowed, or unless it plainly appear by the will that the testator intended that she should have both ; see Eeid v. Dickerman, 12 Pickering, 146 ; Crane v. Crane, 17 Id. 422 ; De- lay y. Vinal, 1 Metcalf, 57 ; Adams V. Adams and others, 5 Id. 277 ; Pratt V. Fulton, 4 Cushing, 174; Atherton v. Corliss, 101 Mass. 40 ; see Smith v. Bone, 7 Bush, 367 ; Allen V. Pray, 3 Fairfield, 138; Hastings v. Clifford, 32 Maine, 132 ; Stilley et ux. v. Folger et al., 14 Ohio, 610, 646 ; Lingard v. Ripley, 19 Ohio, N. S. 324 ; Bax- ter V. Bowger, Id. 490 ; Hilliard V. Binford, 10 Alabama, 977. In New Jersey, any devise of real es- tate to the widow, without a de- claration as to whether it is in lieu of dower, or not, is made a bar, unless dissented from within six months after probate; see Thomp- son V. Egbert, 2 Harrison, 460 ; Stark et al. v. Hunton etal., Saxtons Chancery, 217,228; see Bray v. Neill, 21 New Jersey, Eq. 343. In Delaware, any devise, and in Penn- sylvania and Maryland, any devise or bequest, will be taken to be in 570 ELECTION. lieu of dower, unless the testator declare otherwise, the widow still having her election ; Penna. Act of 8th April, 1833, sect. 11, (Purd. 1169 ;) and of March 29th, 1832, sect. 85, (Purd. 892;) ReedY. Reed, 9 Watts, 263 ; Chandler v. Wood- ward, 3 Harrington, 428 : Collins V. Carman, 5 Maryland, 503 ; Gough V. Manning, 26 Id. 41. In New York, by the revised statutes, if any provision, real or personal, is made for a widow by will, in lieu of dower, she must elect ; and will be taken to have elected against dower, unless within one year she enter on the lands to be assigned for dower, or commence proceedings for the recovery of assignment thereof. 1 R. S. 741, ss. 13, 14 ; see Hawly v. James, 5 Paige, 323, 445. A bequest in lieu of dower, ac- cepted by election, is so far based upon a valuable consideration, that, though subject to the demands of creditors ; Leavenworth v. Cooney, 48 Barb. 570; Brant's Will, 40 Missouri, 266, it has priority over other legacies, and will not abate with them ; Isenhart v. Brown, 1 Edwards, 411 ; Reed v. Reed, 9 Watts, 263; Lord v. Lord, 23 Conn. 327 ; Bard's Estate, 8 P. F. Smith, 393 ; 15 Id. 314 ; Durham V. Rhodes, 23 Maryland, 233 ; see Mitchener v. Atkinson, Phillip's Eq. 23. It was said in Sandoe's Appeal, 14 P. F. Smith, 314, that where a woman elects to takes her dower, or as a distributee and against the ■will, and other bequests or devises are thereby frustrated, the legacy or devise which she thus renounces will be charged with a trust for the compensation of the disappointed claimants. An election may be determined by matter in pais as well as by matter of record ; but it can only be by plain and unequivocal acts, under a full knowledge of all the circumstances, and of the party's rights; and a bare acquiescence, without a deliberate and intelligent choice, will not be an election ; Duncan v. Duncan's Executors, 2 Yeates, 302, 305 ; Cauffman v. Cauffman, 11 Sergeant and Rawle, 16, 25 ; Heron v. Hoffner and others, 3 Rawle, 393, 396 ; Adlum V. Yard, 1 Id. 163, 111 ; Bradford V. Kent, 1 Wright, 414, 484 ; An- derson's Appeal, 12 Casey, 476 ; O'Driscoll V. Koger, 2 Dessaus- sure, 295, 299 ; Snelgrove et al. v. Snelgrove et al, 4 Id. 2T4, 300. It is a general rule, that one is not bound to elect, until he is fully in- formed of the relative value of the things between which he is to choose, and an election before the circumstances necessary to a judi- cious and discriminating choice are ascertained, is not obligatory ; Pinchney v. Pinckney, 2 Rich- ardson's Equity, 219, 237; Up- shaiv v. Upshaw and others, 2 Henning and Munford, 381, 390, 393 ; Reaves v. Garrett, 34 Ala- bama, 568. " The cases have gone so far," said the Chancellor, in Hall V. Hall, 2 M'Cord's Chancery, 269, 280, " that after the wife has made her election, and has re- ceived benefits under the will, she has been allowed to retract and re- sort to her legal rights, when the estate has turned out differently NOYS V. MORDAUNT. — STKEATFIELD V. STREATFIELD. 571 from what it was believed and stated to be at tlie time of the election prematurely made ; " and this was held to be allowable in Adsit V. Adsit, 2 Johnson's Chan- cery, 448, 451. Taking possession of property under a will or other instrument, and exercising un- equivocal acts of ownership over it, for a long period of time, will amount to a binding election to confirm the instrument ; Bradford v. Kents, 1 "Wright, 414, 484; Upshaw V. Upshaw and others; Wilson, Ex''r, v. Hayne et ux., Cheves' Equity, 3T, 42 ; Gaston v. Gaston, 2 Richardson's Equity, 1, 2 ; Stark et al. v. Hunton et al., Saxton's Chancery, 211, 227 ; Glay and Graig v. Hart, 1 Dana, 1, 6. In like manner, if a lega- ,tee's real estate is devised away, his recovering that estate, by pro- ceedings in law or equity, by title paramount to the will, would be an election not to take under the will ; Kinnaird, Ux'or, &c., v. William's AdmW et al., 8 Leigh, 400. If a party has once made an election he is bound to abide .by his determination, unless he can re- store the property to its original situation ; Leonard v. Grommelin, 1 Edwards, 206, 210. In Bradford v. Kents, 1 Wright, 4T4. Strong, J., held the following language in delivering the judg- tnent of the court. " That an elec- tion may be evidenced by matter in pais as well as by matter of re- cord is certain, and it was conceded in the court below. It is true, nothing less than unequivocal acts will prove an election, and they must be acts done with the knowl- edge of the parties' rights, as well as the circumstances of the case. Nothing less than an act of choice intelligently done will suffice. When the question is as it was in this case, whether a widow has elected to take a devise or a be- quest under her husband's will, in lieu of dower at law, it is not suf- ficient to prove that she had been merely passive, or even that she has received the property given to her by the will, unless she knew the situation of her husband's es- tate, and the relative value of the properties between which she was empowered to choose. All this must be conceded. And so, even when a widow has the requisite knowledge, where an act done by her is equivocal, the intention with which the act was done is material to be considered. But a widow who, after having become acquainted with all that is neces- sary for her to know in order to make a binding election, receives the gift conferred by her hus- band's willj and uses it as her own, is not at liberty to say she did not intend to relinquish dower. Her acts are inconsistent with any other intention. They are not equivocal ; she has no right to the gift except as a legatee or de- visee, and her taking and using it is an admission that she chooses to take under the will. It neces- sarily involves an election, and in the case supposed, a case where there is full knowledge, it bars her dower. There are undoubtedly de- cisions that a widow may elect dower even after she has claimed and received the legacy or devise 572 ELECTION. made to her, but she may not re- ceive and hold the benefits con- ferred by the will of her husband, after the extent of her rights has become known to her, and then re- tract her election." " In the case before us, the widow was an executrix, , and acted as such. She took out letters testa- mentary. It was her duty to in- form herself of the situation, cir- cumstances and value of her hus- band's estate. She must, there- fore, be presumed to have known. All the personalty was spread be- fore her, and she took a large por- tion of it. To no part of it had she any right except as legatee. She took it expressly under the will, used it as her own, and never afterwards until this suit was brought, retracted this act of choice. Not even yet has she re- turned or offered to return all that she claimed and received. She continued on the farm as long as the will gave her a right to con- tinue, and left when her estate un- der the will terminated. Her con- tinued possession was rightful if she held as devisee ; it was wrong- ful if she had made ;io election to take under the will. ***** The true question to be answered was, not what her motives were, or her purposes in regard to the prop- erty, but whether she had elected to take what her husband had given her by his will." It seems that where land is given to A. bj"^ an instrument which assumes to bestow other land be- longing to him on B., A.'s entering into or continuing in possession of both tracts will not amount to an election, or preclude him from determining, subsequently, which he will have. Although under an obligation to choose, he need not do so until formally required by some one duly authorized to that end. " To constitute an election," said Price, J., in Whitredge v. Park- hurst, 20 Maryland, 62, " there'must be a choosing between the two ; the taking of the one and the rejection of the other. The taking of both is no election ; Marriott v. Bad- ger, 5 Maryland, 311. * * * * Acts of ownership over both prop- erties cannot evidence an election ; a choosing between the two ; whether those acts of ownership are the tak- ing possession of both, or receiving the rents of one, and the mortgag- ing or leasing of the other. Such and similar acts show that both were claimed, therefore that neither was abandoned, and con- sequently instead of establishing an election they negative it." In this instance the testatrix had a life estate in certain land, in which her daughter had the fee, and owned another tract absolutely. She devised both tracts to the daughter, with the remainder over to her children. The daut^hter proved the will and went into pos- session of both tracts, and subse- quently united with the remainder- men in mortgaging that which she held in her own right, and it was decided that these acts did not con- stitute an election. It was further held to be immaterial that the will was made in pursuance of an oral agreement that if the mother would leave all she had to her daughter for life, the latter would give effect ALETN V. BELCHIER. 573 to the bequest over to her children. The court were also of opinion, that a declaration by the daughter of her intention to carry out the will, came too late after she had 'incurred debts, which could not be paid without a sale of the property, which belonged to her in fee. There are cases of election in other departments of equity, where infants and femes covert cannot make a binding decision ; but they may be enforced to elect, in cases of the present nature, where the choice lies between two inc nsist- ent rights, and there is a clear in- tention on the part of him under whom one of them is derived, that both shall not be enjoyed, and it is therefore against conscience to re- tain both ; Robertson v. Stephens, 1 Iredell's Equity, 247, 251 ; M' Queen v. M' Queen, 2 Jones' Eq. 16 ; see Tiernan et al. v. Ro- land and Blackstone, 3 Harris, 430, 452. The acceptance by a married woman of a benefit under a. will, may be as conclusive on her, and those claiming under her as if she were sole ; Tiernan v. Roland; Robinson v. Buck, 21 P. F. Smith, 386 ; 2 Smith's Leading Cases, 742, 7 Am. ed. The court will make election for infants ; and, in doing so, will be guided altogether by a view to the benefit of the infant, on a consideration of all the cir- cumstances ; Addison v. Bowie, 2 Bland, 606. 623. The proper course, therefore, under such cir- cumstances, lies in a reference to a Master, to ascertain the value of both interests, followed bj' a de- cree that the infant shall retain that which will, on the whole, be most for his advantage, and resign all claim to the other. Grattan r. Howard,! Swan. 409; M'' Queen V. McQueen, 2 Jones' Eq. 16. ♦ALEYN V. BELCHIER. [*377] JULY 5, 1758. REPORTED 1 EDEN, 132.1 Fraud upon a power.] — Power ofjointurivg executed in favour of a wife, but with an agreement that the wife should only receive a part as an annuity for her own benefit, and that the residue should be applied to the payment of the husband's debts: held a fraud upon the power, and the execution set aside, except so far as related to the annuity; the bill containing a submission- to pay it, and only seek- ing relief against the other objects of the appointment. The Rev. Thomas Aleyn being seised of a real estate in Essex, of the yearly value of 540^., subject to a mortgage for a term of 500 years to Sir Charles Palmer tor 500;., and having a nephew, ' S. C. Sugd. on Pow. App. Arab. MSS. Reg. Lib. A. 1757, fol. 433. 574 FRAUDS ON POWERS. Edmund Aleyn, and two brothers, the plaintiiF, Giles Aleyn, and William, who was a defendant, by his will bearing date the 28th of May, 1746, devised the same to Eyre and Bragg in trust by sale or mortgage to raise money, and pay his debts and legacies, and to permit his wife to receive the rents and profits of the residue for her life, and after her death in trust to convey to his nephew Edmund for life, with remainder to his first and other sons in tail male, with proper limitations to support contingent remainders, with a power to his nephew to make a jointvre on any woman he should then after marry, for her life in bar of dower, with powers to pi'ovide for younger children, and to make leases, with remainder to the testator's brother Giles for life; remainder to his first and other sons in tail male ; remainder to his brother William for life; remainder to his first and other sons in tail r*o7Q-| male; remainder to his *own right heirs: he gave his '- ^ brother, the plaintiff, an annuity of £30 a year for his life, to be paid out of his estate, to be increased to 60?. a year in case his nephew should survive his, the testator's, wife. A bill was filed soon after the testator's death by the widow, and on the I4th of February, 1749, a decree made to establish the will, and for payment of debts and legacies by mortgage or sale in the usual way. The master reported, there was due for debts and legacies 1516Z. Is. iOcf. which he approved to be raised by mortgage. The widow died in April, 1750, and Edmund be- came entitled to the possession of the estate. The defendant William Eelchier, having advanced money to pay ofi:' the incum- brances, a mortgage, bearing date the 26t.h and 27th of June, 1760, was made of the estate to him in fee, and the term for years was assigned to John Belchier in trust for W. Belchier. Edmund was very extravagant, and became indebted to Wil- liam Belchier in the sum of 1760/. On the 4th of June, 1760, Edmund married the defendant Jane, who was a low woman without fortune, and no provision for her was either made or agi eed to be made ; but soon after the marriage, by articles of agreement, bearing date the 1st of August, 1760, and made between Edmund Aleyn and his wife of the one part, and William Belchier of the other, reciting the will of Thomas Aleyn, giving Edmund power of jointuring, and that he and Jane were lately married, and that he was indebted to William Belchier in the sum of ^1760, besides the mortgage, Edmund Aleyn, in satisfaction and discharge of the said sum of 1760/., and in consideration of the several annuities and money thereinafter agreed to be paid, covenanted within six months to procure an effectual conveyance and settlement to be made by the trustees in Thomas Aleyn's will, and immediately after such settlement should be made, to appoint the whole estate to his wife for her life, in case she should survive him, for her jointure ; and that he and his wife, as soon as they should become respec- r«Q7Qi tively seised of the legal estate of freehold, *would, by L -I fine and conveyances, convey and assure all the said ALETN V. BELCHIER. 675 premises by the said will devised and intended to be settled, unto and to the use of William Belchier, his heirs and assigns, during the lives of Edmund Aleyn and Jane his wife, and the longer liver of them ; and in consideration thereof, William Belchier covenanted that, in case the said settlement should be perfected, whereby the estate should become well vested in him and his heirs, for the lives of Edmund and Jane his wife, and the longer liver of them, to pay the several annuities after mentioned, namely: to Jane Aleyn, during the joint lives of her and Edmund her husband, 60^. a year, clear of all deductions, for her separate use ; to Edmund Aleyn, for his life, in case he should survive Jane his wife, £60 a year, clear of all deductions ; and to Jane, in case she should survive Edmund her husband, for her life, £100 a year, clear of all deductions; and to pay to John Miles, son of Jane by a former husband, 105^. at the age of twenty-one years ; and also to pay Jane bl. yearly towards his maintenance and education, till the 105^. should become payable. The estate was conveyed by lease and release of 6th and 7th of August, 1750, to the uses of Thomas Aleyn's will, pursuant to the decree: and by deed, dated 8th August, 1760, reciting the conveyance and power to jointure, Edmund Aleyn, in considera- tion of the marriage, and in order to make a provision for Jane, his wife, appointed the whole estate to Jane, his wife, for a jointure, subject to the payment of the annuities given by the will of Thomas Aleyn, and of the mortgage of 1616^. Is. lOcl. and , interest. On the 10th of August, 1760, Edmund Aleyn and Jane, his wife, executed a deed, by which Edmund covenanted .with George Townsend, that he and his wife would levy a iine of the premises to Townsend and his heirs, for and during the lives of Edmund and his wife and the longer liver of them, in trust for William Belchier and his heirs, which was levied accordingly. William Belchier took possession of the estate, and *re- r^ooQ-i ceived the rents and profits, and paid the plaintiff, during '- -' Edmund's life, two sums of 251. and 211. 5s., in part of the an- nuity he was entitled to under Thomas Aleyn's will. Edmund died in June, 1765. On 26th November, 17&6, the plaintiff" filed the present bill to redeem the estate, on payment of 1516/. Is. lOd., the mortgage money borrowed under the decree, and to be let into the posses- sion of the estate ; for an account of the rents and profits from the death of Edmund, submitting to pay Jane 100^. a year for her life, and to have the deeds and writings of the estate delivered up. Jane Aleyn and William Belchier admitted, in their several answers, the facts as before stated. Jane Aleyn said that the settlement was intended to make a reasonable provision for her, and to save Edmund from ruin ; and that if Edmund had not been in debt at the time of their marriage, he would have settled the whole estate on her for her jointure. William Belchier said, that the consideration of the settlement and conveyance was truly and 576 FEAUDS ON POWERS. bona fide advanced, part before the execution of the settlement, and the remainder at or about the time of the execiJtion of the settlement and conveyance to Townsend ; and they both admitted that Edmund was, at the time of the settlement, in distressed circumstances, and in want of money. Mr. Ferrot and Mr. Ambler, for the plaintifi":^ — This is an im- proper execution of the power, which was to bar dower by giving a jointure ; but even supposing it well executed, the fraud will vitiate it. The appointment and conveyance were a deceit upon the testator, and a fraud upon the remainder-man. The power given to the nephew, who was only tenant for life, was to make a fair jointure, to encourage him to marry, not to pay his debts. The remainder man was only to be kept out of the estate in case a fair and honest jointure were made. It must not be colourable, and for other purposes. This was an artful contrivance of Bel- chier and the defendant Jane ; a low, mean woman, of no fortune. There is no settlement, nor agreement for one, at the time of the r*S8n ™^i"i'i^g®> iior *till Belchier put it into Edmund's head, L -I with a view to secure his own debt by taking an absolute interest in the estate for two lives instead of a mortgage for Ed- mund's life only. It is at best an unreasonable bargain. 'Jhe articles of the 1st August discover the whole scheme. Upon the face of them it appears it was not the intention to jointure, but to pay debts. The only jointure averred is 100^. a year ; Edmund is stripped of everything during the joint lives of himself and his wife ; only 60/. a year to be paid during their joint lives, and that to the separate use of the wife. Suppose a power to make a jointure of so much for every thousand pounds fortune : it has been repeatedly held, that if the husband or others advance a sum of money, colourably to authorise the husband to settle largely, a Court of Equity will set aside all above the proportion of the real value of the fortune.' So, if^a father, having a power to appoint amongst his children, bargains with one for a share, equity will set it aside. Though it may be honest in Edmund to pay his debts, it must be done with his^ own money ; this is a method of doing it with other persons' money, contrary to the in- tention of the testator. Even admitting the estate had been fairly and bona fide appointed as a jointure, and the wife had after- wards parted with her jointure, or part of it to pay her husband's debts, it would have been good to bind the remainder-man ; yet in this case the whole is one transaction, a collusion between the husband and wife and Belchier. The case of Lane v. Page, de- termined by Lord Hardwicke, is precisely in point. The Attorney-General, Sir Charles Pratt, and the Solicitor General, the Hon. Charles Yorke, for the defendant Belchier; Clark, for the jointress : — The first question is, as to the extent of the power given by the will. The objection that the power is only to bar dower, ' Lane t. Page, Amb. S33 ; Lord Tyrconnel v. Duke of Anoaster, Amb. 237. [*382] ALEYN V. BBLCHIER. 577 and consequently can only comprehend jointures made before marriage, is too extensive, as it will comprehend every jointure, though made bona fide. The devise is to a nephew, having no estate of his own, for life, without impeachment of waste; he had no estate to *which dower could attach, which shows that the words were put in by the scrivener currente calamo. As to the execution, the power was substantially executed ; the husband and wife agreed to sell their interest to Belchier. If an appointment had been made of the whole estate, and the wife had afterwards joined with the husband and sold her in- terest, it would have been good if only a day had intervened. This is the same thing. Suppose the wife had made a stand after the power was executed, the Court would not have compelled her to levy a fine. It was in her power to do it or not. In the case jjut, of a father appointing to a child, making himself a par- taker, the appointment would only be avoided 'as against other children, uot against a remainder-man. The LoKD Keeper Henley.' — The question is whether Edmund Aleyn has properly executed the power as a jointure, and has properly conveyed to the defendant, Belchier, or whether the transaction is void in toto, or in part. I am inclined to think the power was not well executed in point of law.^ It ought to have been before marriage. The power is given under restric- tions. It must be a jointure in bar of dower, which can only be before marriage. Dower is not barrable by a jointure after marriage. But, I build my opinion upon the next question. The whole transaction is on agreement between the husband and wife. No point is better established than that a person hav- ing a power must execute it bona fide for the end designed, otherwise it is corrujit and void. The power here was intended for a jointure, not to pay the husband's debts. The motive that induced Ed- naund to execute it was not a provision for his wife. This case is not distinguishable from the cases alluded to, nor from Lane v. Fage. If a father has a power to appoint amongst children, and agrees with one of them, for a sum of money to appoint to him, such appointment would be void. It was admitted the execution share of the property subjected to such power ; provided that nothing would be void, but it was said to be only so amongst the children. In that ease the money is to go to the children ; no other person has any *interest in it ; here the remainder- man has an immedi- --^odo-i ate rio-ht to the estate after the death of Edmund, if there ^ *^-l is no appointment. It was said to diifer from the case of parent and children ; and that, if the husband had fairly executed the power, the wife might have immediately afterwards joined in a fine to pay his debts. The reason is plain : she would then have had a first interest, and the husband would have had no control 1 Afterwards Lord Chancellor and Earl of JSTorthiugton. s Sed vide 2Sugd. Pow. 321. VOL. I 37 578 FRAUDS ON POWERS. over it ; but it does not from thence follow that they might make an agreement to divide the money between them. It cannot be supposed he would have settled the whole on her without some such view. She was of no family and had no fortune. It would have kept the children, if they had any, entirely out of the estate till her death. It is like the case put of parents and children ; and I think Lane v. Page is in point, and ought to govern my decision in the present case. Declare the appointment good as to the 100/. only for the benefit of Jane. The plaintift' to redeem, on payment of principal and interest of the mortgage and costs, so far as relates to the mortgage. ♦ Account of rents and profits from the death of Edmund : and lielchier to pay the rest of the costs. Aleyn v. Belchier, was decided upon the well-established principle that a person having a power. Tnust execute it bona fide for the end de- signed, otherwise the appointment, although unimpeachable at law, will be held corrupt and void in equity ; for, although the Lord Keeper seemed inclined to think, that the power was not well executed, even at law, he founded his decision expressly upon the ground that the appointment was a fraud upon the donor of the power, and therefore void in equity. See Topham v. The Duke of Portland, 31 Beav. 525 ; 1 De G. Jo. & Sm. 51T ; S. C, nom. Duke of Portland v. Topham, 11 H. L. Ca. 32. Topham v. Duke of Portland, 5 L. E. Ch. App. 40 ; D'Abbadie v. Bizion, 5 I. R. Eq. 205. The recent case, however, of In re Suish's Charity, 10 L. R. Eq. 5, seems to have departed from the doctrines above laid down. The principle, somewhat concisely stated by the Lord Keeper in Aleyn v. Belchier, has been recently more fully and forcibly enunciated in the House of Lords. " The donee, the ap- pointer *under the power," observes Lord Westbury, C. " must, *- -'• the time of the exercise of that power, and for any purpose for which it is used, act with good faith and sincerity, and with an entire and single view to the real purpose and object of the power, and not for the purpose of accomplishing or carrying into effect any bj^e or sinister object (I mean sinister in the sense of its being beyond the purpose and intent of the power), which he may desire to effect in the exercise of the power," 11 H. L. Ca. 54 ; and to the same effect Lord St. Leonards observes : " A party having a power like this (to appoint amongst children) must fairly and honestly execute it, without having any ulterior object to be accomplished. He cannot carry into exe- cution any indirect object, or acquire any benefit for himself, either di- rectly or indirectly. It may be subject to limitations and directions ; but it must be a pure, straightforward, honest dedication of the prop- erty, as property, to the person to whom he affects, or attempts to give it in that character.'' lb. 55. ALBYN V. BELCHIER. 579 Upon the same grounds as the decision in the principal case, where a man has a power to make a jointure under restrictions, as lOOZ. a-year for every lOOOZ. of the wife's portion, and he has himself advanced a sum of money, in order colourably to enable him to make the jointure larger, the Court will reject such part as is more than proportionate to the real fortune : Lane v. Page, Amb. 234, per Lord Hardwieke ; Lord Tyrconnel v. Duke of Ancaster, Amb. 237 ; S. (7., 2 Ves. 500 ; where the judgment is more fully reported ; and see Weir v. Ghamley, 1 Ir. Ch. Rep. 295, 311. In Lane v. Page, Amb. 233, a tenant for life, with power of jointuring, teing greatly in debt, and actually arrested, exe- cuted his power of jointuring to its full extent, having previously entered into an agreement with the woman whom he afterwards mar- ried, that she was to join in levying a fine, the use of which was to pay her 20Z. a-year only for her benefit ; bOl. a-year was to be applied in payment of his debts, and then to his wife for life ; and the residue of the profits during her life should, after his death, be paid as he should appoint, or, in default of appointment, should go to his executors, ad- ministrators, and assigns. The husband died soon after the marriage, no fine having been levied ; but the widow, by indentures of lease and release, conveyed the premises, in trust to pay 20Z. a-year to herself for life, the overiplus of the rents in discharge of her husband's debts, and then in trust for herself for life. Upon a bill being filed by the re- mainder-man to set aside this execution of the power, Lord Hardwieke held, that it was a fraud on the property of a third person, the remain- der-man, but *that it ought to be supported as to the 20Z. a-year. " Fraud," he observed, " will affect only so far as it extends ; and '- -" this Court will not say that participes criminis shall have no benefit of the agreement in any part." And, accordinglj^, it was declared that the agreement and conveyance ought to be considered as one transaction, and set aside, except as to the 20Z. to the wife. So an appointment to a child by a father in consideration of his wife postponing her jointure to some mortgages which he proposed to effect, was held by Sir W. Page Wood, V. C, to be void. " I think," said his Honor, " it would be impossible to contend if a direct bribe were given to the appointor, though out of a separate fund, that the appoint- ment could be upheld in favour of the party to whom the fund subject to the appointment was given:" Rowley v. Rowley, Kay, 242. Upon the same princif)le also, if a parent, having a power of appoint- ment amongst his children, appoints to one or more of them, to the ex- clusion of the others, upon a bargain for his own advantage, equity will relieve against the appointment as a fraud upon the power, as where there was a secret understanding that the child should assign a part of the fund to a stranger (Baubeny v. Cockburn, 1 Mer. 626 ; Ln re Mars- den's Trusts, 4 Drew. 594) ; where an appointment was made to one of the children in consideration of her having agreed, out of part of the 580 FRAUDS ON POWERS. sum appointed, to pay her father's debts (Farmer v. Martin, 2 Sim. 502 ; and see Thomson v. Simpson, 2 D. & W. 459 ; 8 Ir. Eq. Rep. 55, 59; Askham v. Barker, 12 Beav. 499; Gonolly v. M'Dermott, Beat. 601 ; Sugd. Prop. 513; Jackson v. Jackson, Dru. 91 ; 'T C. & F. 91Y ; Carver v. Richards, 2Y Beav. 488 ; 1 De G. F. & Jo. 548), or where the appointment is expressed to be made in payment of a debt : Reid V. Reid, 25 Beav. 469. In Arnold v. Hardioick, 1 Sim. 343, Sir L. Shadwell, V. C, even held that an antecedent bargain between a father and two of his children, that if the appointment were made in their favour they would lend the fund to their father, would vitiate the ap- pointment. An appointment to a child, although not for the advantage of the appointor, will be invalid, if it be not made bona fide. Thus, in Salmon V. Gibhs (3 De G. & Sm. 343), the d6nee of a power of appointment among his children, to whom it was given in default of appointment, had only two daughters, and ajspointed nearly the whole of the fund to one of them, who was unmarried, on an understanding, but without any positive agreement, that the appointee would re-settle one moiety of it on trust for the separate use of the other daughter, who was mar- ried, exclusively of her husband, *and after her death on trust L ^ for her children. A re-settlement was accordingly made without the privity of the married daughter, who did not hear of the transac- tion until several years after. It was held by Sir J. L. Knight Bruce, V. C, on the suit of her husband, that the appointment was invalid, and a settlement was directed to be made of his wife's share. Moreover, where an appointment is exercised with the view of defeat- ing the object of the power, it will be invalid, although the objection- able arrangement has not been made known to the appointee, if the appointment was made by the appointor relying upon the moral influ- ence which his wishes, when made known to the appointee, would exer- cise over him, in carrying out such arrangement. See in Re Marsden's Trusts, 4 Drew. 594. There a married woman having power to appoint a fund (of which she received the income for her life), among her children, appointed the whole fund at her death to her eldest daughter. It appeared in evidence that the married woman, considering that her husband was unjustly excluded from any interest under the settlement, intended to exercise her power by appointing the whole property to her eldest daughter, upon condition that upon attaining her majority she should give certain interests to her father : but when advised that such an appointment would on the face of it be invalid, she exercised her power by giving the whole of the property to her eldest daughter^ under an arrangement with her husband that on her death the daughter should be informed by her father of the intention with which the ap- pointment was made, and so be induced to carry out the intention. Sir R. T. Kindersley, V. C, held the appointment bad, as a fraud on the ALEYN V. BELCHIBR. 581 power. " In some of the cases which have been cited," said his Honor, " there has been a direct bargain between the donee of the power and the person in whose favour it is exercised, under which the donee of the power was himself to derive a benefit ; and certainly there has been nothing of that kind in this case. In my opinion, however, it is not necessary that the appointee should be privy to the transaction, because the design to defeat the purpose for which the power was created will stand just the same, whether the appointee was aware of it or not ; and the case of Wellesley v. Mornington (2 K. & J. 143) shows that it is not necessary, in order to bring the case within the scope of the juris- diction on which this Court acts, that the appointee should be aware of the intentions of the appointment, or of its being actually made. Neither is it necessary that the object should be the personal benefit of the *donee of the power. If the design of the donee in ex- ercising the power is to confer a benefit, not upon himself '- -■ actually, but upon some other person not being an object of the power, that motive just as much interferes with and defeats the purpose for which the trust was created, as if it had been for the personal benefit of the donee himself." See also Banking v. Barnes^ 12 W. R. (V. C. K.) 565; TophamY. The Duke of Bortland, 31 Beav. 525; 1 De G. Jo. & Sm. 51 Y : 11 Ho. Lo. 32, nom. The. Duke of Portland v. Top- ham ; Topham v. Duke of Bortland, 5 L. R. Ch. App. 40. But see Prohy V. Landor, 28 Beav. 504. Although questions of this nature generally arise upon a fraudulent arrangement between husband and wife, or between parent and child, the interference of equity is by no means confined to cases in which the donee and object of the power stand in that relation towards each other ; for an arrangement between any person having a power, even although he may have been by a voluntary deed the original donor of the power, and any of the objects of it, in fraud of the original inten- tion with which the power was created, will render an appointment void in equity. Thus, in Lee v. Fernie, 1 Beav. 483, A. B., being desir- ous of settling property on the female descendants then in existence of C. D., by a voluntary deed reciting this desire, and that certain persons therein named were the only descendants then living of C. D., settled a part of the property on the persons so named, and reserved to himself a power of appointing the remaining part of the property amongst such several persons before named, which, in default of appointment, was given to those several persons. A. B. afterwards discovered that there were other descendants in existence, of C. D., who had been omitted, and to remedy the omission, he appointed a part of the fund to an ob- ject of the power, upon his executing bonds for the payment to the per- sons newly discovered of the amount when received. Lord Langdale, M. R.,held, that the appointment was void. " It certainly seems," said his Lordship, " a hard thing that he, the author of this gift, and the 582 FRAUDS ON POWERS. owner of this property, could not do this ; but he had declared a trust — he had said that it should belong to certain persons — that the power he had reserved should be exercised for the benefit of certain persons only ; and I quite agree with those who advised him, that it was not competent for him, of his own authority, to alter that destina- tion of his property." And see Topham v. The Duke of Portland, 1 De. G.Jo. & Sm. 517. As in all other cases imputing fraud, the burden of proof lies on the r*QB8n Person who seeks to set aside *an appointment as fraudulent. L -' Thus in Campbell v. Home, I Y. & C. C. C. 664, where a lady who had a life interest in a fund, with power to appoint to one or more of her children, exclusively of the others, appointed the whole to one child, who had attained the age of twenty-one, and assigned her life interest to such child, one of the trustees refused to join in the transfer to the daughter. Sir J. L. Knight Bruce, V. C, upon a bill being filed against the trustee by the daughter, held that he was bound to join in the transfer. " What may be the intention," said his Honor, " of this lady in regard to the disposition of her money, is not a ques- tion with which the Court has to deal. If it can even be shown that this deed was executed from improper motives, those who are interested in doing so can apply to set it aside." So in Askham, v. Barker, 11 Beav. St, a tenant for life had the power of appointing the settled prop- erty amongst such of his children as he should think fit. The trustees had in breach of trust lent him part of the trust monies, without taking any security. Afterwards the tenant for life appointed to his daughters the money so lent, and 500Z. in exclusion of his son. Contemporane- ously the daughters exchanged the sum so appointed for an estate of the father, and then the old trustee retired. Sir John Romilly, M. R., held that there was no fraud on the power, as the estate was worth the amount given in exchange. See also McQueen v. Farquhar, 11 Ves. 461 ; Green v. Pulsford, 2 Beav. 10 ; Mills v. Spear, 3 Ir. Ch. Rep. 304; Pickles v. Pickles, 9 W. R. (V. 0. K.) 396; lb. (L. J.) "763; Pares v. Pares, 33 L. J. (N. S.) Ch. 215. A question sometimes arises, whether a fraudulent arrangement as to part of the property appointed vitiates the appointment in toto of such part merely to which the fraud extends. In Dauhney v. Cockburn, 1 Mer. 626, this question was fully considered. In that case there was a voluntary settlement of personal property, in trust for such one or more of his children as the settlor should appoint. He appointed to one child exclusively, upon a secret understanding that she should assign a part of the fund to, or in favor of a stranger. It was con- tended upon the authority of Lane v. Page, and the principal case, that the appointment was only void as to the part of the fund agreed by the daughter to be assigned. However, Sir W. Grant, M. R., held the ap- pointment void in toto. " Upon principle," said his Honor, " I do not ALETN V. BELCHIER. 583 see how any part of a fraudulent agreement can be supported, except where some consideration has been given that cannot be restored, and it has consequently become impossible to rescind the transaction in toto, and to replace the parties in the same situation." But where the fair inference from the facts is, that the appointor be- fore the execution of an appointment intended to derive to himself a benefit therefrom, the burden rests on those who support the transac- tion to show that the intention had been abandoned at the time of the execution of the deed : Humphrey v. Olver, 1 W. E.. (L. J.) 334 ; 28 L. J. (N. S.) Ch. 406. Where the donee of a power intends to appoint, and the appointee intends to settle the property, the appointment will be valid, although the appointee by a deed executed soon after, or even by the same deed, settles the property upon persons who are not objects of the power. This often takes place when a parent, on the marriage of a child, makes an appointment in favour of the child, who is the object of the power, and the child either by the same or a subsequent deed, settles the prop- erty upon (amongst others) her intended husband and the children of the marriage, who are no objects of the power. See Routledge v. Dor- ril, 2 Ves. jun. 35t>; Langstone v. Blackmore, Amb. *289 ; p^^qoq-] West V. Berney, 1 Russ. & My. 431 ; White v. St. Barbe, IV.'- "' ' & B. 399 ; Wade v. Paget, 1 Bro. C. C. 363 ; Irwin v. Irwin, 10 Ir. Ch. Rep. 29 ; Sed vide Trollope v. Routledge, 1 De Gr. & Sm. 662 ; Salmon V. Gibhs, 3 De G. & Sm. 343 ; In re Oosset's Settlement, 19 Beav. 529, 537 ; Fitzroy v. The Duke of Richmond, 21 Beav. 190. And where, after an appointment made by a father to his daughter previous to marriage, the intended husband in the marriage settle- ment gave up to the father an interest in the sum appointed, to which otherwise he (the husband) would be entitled, by his marital right, the appointment has been held not to be thereby invalidated ; at any rate, where the father was not, on making it, influenced by what the husband gave up to him. See Cooper v. Cooper, 5 L. R. Ch. App. 203. There by a settlement made on the marriage of Mr. Thomas Daniell and Mrs. Daniell, funds were settled after the death of the survivor of them in trust for all and every of the children of the marriage, as they should jointly or as the survivor should appoint; and in default of appoint- ment, in trust for all the children in equal shares. Upon the marriage, in 1834, of Sophia, one of their daughters, then under age, to Captain England, Mr. and Mrs. Daniell appointed a portion of the funds in her favour, and Mr. Daniell executed a bond for payment of an equal sum to her trustees in or before 1842, with interest in the meantime. Sub- sequently a settlement was executed, the trusts of which were to pay the income of the trust funds to Mr. and Mrs. England successively for life ; after the death of the survivor, the principal to go among the chil- dren of the marriage; and the ultimate limitation in default of children 684 FRAUDS ON POWERS. of the marriage was " for Mr. Thomas Daniell, his executors, adminis- trators, and assigns." There were children of this marriage, to some of whom, on their marriage, appointments had been made by Mr. and Mrs. England. Upon a bill being filed by the second husband of one of Mr. and Mrs. Daniell's daughters, praying, amongst other things, that the appointment to Mrs. England might be declared a fraud upon the power, and that the fund might be divided as in default of appoint- ment, it was held by Lord Hatherlej^, L. C, affirming the decision of Sir W. M. James, V. C. (reported 8 L. R. Eq. 312), that the appoint- ment to Mrs. England, who was an infant at the time of her marriage, was not corrupt or improper, so as to render the appointment invalid, inasmuch as the bargain under which Mr. Thomas Daniell reserved to himself an ultimate interest in the appointed fund, was a bargain be- ^ tween himself and Mr. England, *the intended husband. " It r*390l & » _ '- -^ is said," observed his Lordship, " that this case falls withm that class of authorities which have decided that a donee of a power cannot stipulate for any benefit for himself with reference to the exer- cise of the power; and that if he does so the whole appointment is vitiated by the consideration that he has not made it with the simple intention of providing for the children, and that you cannot separate such part of the transaction as has been done under the influence of the corrupt bargain from the other part, but the whole appointment must be held to be void in favour of all those who take in default of appointment. I should be extremelj' sorry to say a word that would tend to break in on a rule so well and so justly established. Undoubt- edly there would be considerable difficulty in dealing with a deed of this description if any such bargain were proved, notwithstanding the father's making a provision which is said to be equal to or greater in value than the ultimate reversion which he takes, because it is obvious that in the event of the husband and wife dying early without issue, the father might take an interest far greater than anything he has pro- vided. It seems to me, therefore, an exceedingly doubtful transaction in any way to support. But in the case of Mrs. England's settlement, the bargain was not to take anything out of the daughter's share ; but the husband says to the father, ' I will settle the fund in this way ; but in the event of my wife dying, and there being no issue, and any right accruing to me, except under the settlement, I waive altogether my marital right, and the fund shall go back to you or the family of my wife.' I have not found any case which go'es to the extent of over- throwing a bargain which was not a bargain with the daughter, not a bargain to induce the father to make the appointment. In the present case the deeds are all put before me, and nothing else, without a word of evidence or explanation, and I am entitled to construe them in a rea- sonable way, taking into consideration the whole transaction. I find no authority for saying that this is such a bargain as can be supposed ALBTN V. BBLCHIER. 585 to have inflvieneed the father's mind in making the appointment, and without which it would not have been made. I put the question as Lord Justice Knight Bruce put it in the course of the argument in Topham v. The Duke of Portland (1 De G. J. & Sm. 555), 'Would the appointment have been made but for the condition ?' The answer is ' Yes.' The appointment is made of a reasonable and proper share, and it is settled reasonably and properly, and the whole result of the settlement takes nothing from the daughter. All that comes to the father is such a claim as he *may have against the husband, so i-*QQn that it shall not go to the husband's family." '- -^ Where, however, the reason of an appointment being made to the ap- pointee arises from a previous contract by him with the donee of the power to settle the property upon persons who are not objects of the power, then the appointment is invalid, as being a fraud upon the power : Birley v. Birley, 25 Beav. 299 ; Pryor v. Pryor, 32 L. J. (N. S.) TBI ; 33 L. J. (N. S.) 441 ; 2 De G. J. & S. 33. The question in all these cases is this,^ In what character did the ap- pointee take the property ? If he took absolutely, he might do with it as he pleased; but if in trust for the donee of the power, and to effect that which it was not within the authority of the donee to effect iinder the terms of the power, then it is illegal, and amounts to nothing : per Sir J. Romilly, M. R., in Birley v. Birley, 25 Beav. 308. As to the costs of trustees declining to make a transfer to a father and child who has just attained his majority, and to whom his father has made an appointment in exclusion of other objects, see King v. King, 3 Jur. (N. S.) 608 ; 5 W. R. (V. 0. S.) 699 ; 1 De G. & Jo. 663. A question sometimes arises, whether a fraudulent arrangement as to part of the property appointed vitiates the appointment in toto, or such part merely to which the fraud extends. Where a fraudulent appointment has been made in pursuance of a power of jointuring, the wife, in whose favour the power is exercised, being the sole object of the power, it appears to be now settled that the appointment may be severed, and held good to the extent to which the jointress is entitled, but bad with reference to the corrupt and improper use that may be made of the surplus. Lane v. Page, Amb. 233 ;, Aleyn V. Belchier, 1 Eden, 138 ; and ante, p. 3'r'r ; and the remarks of Sir W. Page Wood, V. C, in Rowley v. Rowley, Kay, 259. Where, however, the power is to appoint to several objects, an ap- pointment to one of them, fraudulent in part, will ordinarily be set aside in toto. See Daubeny v. Gockburn, 1 Mer. 626, where this ques- tion was fully considered. In that case there was a voluntary settle- ment of personal property, in trust for such one or more of his children as the settlor should appoint. He appointed to one child exclusively, upon a secret understanding that she should assign a part of the fund to or in favour of a stranger. It was contended, upon the authority of 586 FRAUDS ON POWERS. Lane v. Page, and the principal case, that the appointment was only void as to the part of the fund agreed by the daughter to be assigned. r*S921 Ho''^6'*'6''i ^iJ" W- Grrant, M. R., held the appointment void *in toto. " Upon principle," said his Honor, " I do not see how any part of a fraudulent agreement can be supported, except where some consideration has been given that cannot be restored ; and it has, coyise- quently, become im/possible to rescind the transaction in toto, and to re- place the parties in the same situation." " In the case of Lane v. Page, the subsequent marriage formed such a consideration on the part of the wife. In the case of Aleyn v. Bel- chier, where the appointment was subsequent to the marriage, it can hardly be said to have been decidedthat the appointment was good in any part. For it appears, by the registrar's book, that the bill contained a submission to pay the annuity to the wife, and only sought relief against the other objects of the appointment." " In ordinary eases of fraud the whole transaction is undone, and the parties are restored to their original situation. If a partially valuable consideration has been given, its return is secured as the condition on which equity relieves against the fraud. But in such a case as the present, the appointment of any particular proportion to any par- ticular child, is a purely voluntary act on the part of the parent; and, although as good, if fairly made, as if the consideration were valuable, yet what is there that a Court can treat as a considera- tion, which must be restored if a fraudulent appointment be set aside, or as incapable of restitution, and, therefore, support the appoint- ment, so far as it is for the child's benefit ? To say it is to be supported to that extent, would be to say that the child shall have the full benefit of the fraudulent agreement. . . . Either, then, you must hold that a child giving a consideration for an appointment in its favour, is guilty of no fraud on the power, or you must wholly set ajside the appointment procured by the fraud. Now, although the father in proposing such a bargain is much more to blame than the child in acceding to it, still it is impossible to say that an appointment obtained by means of such an agreement is fairly obtained. It is a fraud upon the other objects of the power, who might not, and in all probability would not have been excluded but for this agreement. It is more particularly a fraud upon those who are entitled in default of appointment ; for non constat that the father would have appointed at all, if the child had not agreed to the proposed terms." See Beddoes v. Pugh, 26 Beav. 407, 412. The distinction taken by Sir W. Grant seems to be sound in princi- ple ; and appointments to children, in part fraudulent, have ever since, notwithstanding the dicta attributed to Lord Hardwicke, in Lane v. Page, Amb. 235, been set aside in toto. See Farmer v. Martin, 2 Sim. _^„„„-, 502 : Arnold *v. Hardwicke, 1 Sim. 343 ; and see Lee v. Fernie, t*^^^^ Beav 483. ALBYN V. BBLCHIBR. 587 The general rule, however, laid down in Dauheny v. Cockburn (1 Mer. 626), that where an appointment is made for a bad purpose, the bad purpose afifects the whole appointment, does not, it seems, apply to cases in which the evidence enables the Court to distinguish what is attributable to an authorised from what is attributable to an unau- thorized purpose : Topham v. The Duke of Portland, 1 De G. Jo. & Sm. 51t : Carver v. Richards, 1 De G. F. & Jo. 548 ; Rankin v. Barnes, 12 W. R. (V. C. K.) 565 ; and see Sadler v. Pratt, 5 Sim. ^i. So, where there is a sum of money to be appointed among children, although an appointment to one child may be void on account of a corrupt agreement, an appointment to another child, although by a contemporaneous deed, if it can be severed from the previous appoint- ment, so as not to form part of the same transaction, will be valid : Rowley v. Rowley, Kay, 242 ; and see Harrison v. Randall, 9 Hare, 39T. A fraudulent execution of a power will be set aside as against a pur- chaser for valuable consideration, with notice of the fraud : Palmer v. Wheeler, 2 Ball. & B. 18 ; or even if he had not notice of the fraud, if he has not got the legal estate, for then there are only equities to deal with ; and, as observed bj-- Sir W. Grant, " The payment of a money consideration cannot make a stranger become the object of a power created in favour of children ; he can only claim under a valid appoint- ment executed in favour of some or one of the children :" Dauheny v. Cockburn, 1 Mer. 626, 638. But a purchaser must, it seems, have actual notice of a fraud upon a power, in order to be aflfected by it ; circumstances which may give rise to mere grounds of suspicion or probability of fraud are not sufficient. Thus in McQueen v. Farquhar, 11 Ves. 467, where A. was tenant for life, remainder to his wife for life, with power to appoint to one or more of his children by her, A. entered into a contract with T. for the sale of the estate to him, and afterwards appointed (subject to the life- interest of himself and his wife) the fee simple of their estate to R., the eldest son, who had attained the age of twenty-one ; and then A. and his wife, and R. and their son, conveyed the estate to T. in con- sideration of a sum of money, expressed to be paid to all of them. This appearing upon an abstract, an objection was taken to the title that the appointment by A. in favour of his son R. appeared to have been made under a previous agreement between them ; and that if A. derived any benefit from that agreement, which seemed probable, or even made any previous stipulation that his *son should join |-:(cqqj -i him in a sale, which there appeared the strongest reason to ap- prehend, it would have been a fraudulent execution of the power. Lord Eldon, however, overruled the objection. " It does not appear," said his Lordship, " that the estate sold for less than its value — that the son got less than the value of his reversionary interest. But the estate be- 588 FRAUDS ON POWERS. coming his absolutely by the appointment, he by an instrument, affected by nothing but the contents of it, as the owner of the reversion, ac- cedes to the purchase, conveys with his father and mother, in considera- tion of 8000L, and the parties taking the conveyance pay the money to the father, the mother and the son, to be dealt with according to their respective interests ; that is, according to their rights in the land : and, though the contract with T. was only to substitute money for the estate, there was nothing to show that the son was not to receive a due proportion of the money, when the contract was afterwards executed by the deed, in which he joins, and, with his father and mother, re- ceives all the money. TJpon the question, therefoi'e, whether those pos- sibilities and probabilities are sufficiently evidenced by anything to show that this is not a good title, my opinion is, that it is a good title :" see also Gockcroft v. Sutcliffe, 2 Jur. N. S. 333, 25 L. J. Ch. 313 ; Laurie v. Bankes, 4 K. & J. 142. And it seems that the Court would be less disposed to impeach an appointment as fraudulent, after a great lapse of time, and where there have been subsequent dealings with the funds, such, for instance, as subsequent appointments thereof on the marriage of daughters or the establishment of sons in the world : Cooper v. Cooper, 5 L. R. Ch. App. 203, 212, 213; S. C, 8 L. R. Bq. 312. Where there is an arrangement for settling the interests of all the branches of a family, children may contract with each other to give a parent, who had a power to distribute property among them, some ad- Vantage, which the parent, without their contract with each other, could not have. Thus, in Davis v. Uphill, 1 Swanst. 130, an estate being limited, under her marriage settlement, to A. for life, with remainder to her children by her deceased husband, in such manner as she should appoint, remainder, in default of appointment, to all the children as tenants in common; an agreement by the children, that on her joining in suffering a recovery, the first use to which the recovery should enure, should be to A. for life, without impeachment of waste, is it seems valid in equity ; and the Court, therefore, refused to continue an injunction to restrain her from cutting timber. See also Rhodes v. Cook, 2 S. & S. 488 ; Skelton v. Flanagan, 1 Ir. Eq. Rep. 362. *But if any such transaction taken as a whole appears not to L -^ be a bona fide family arrangement, but that it has been entered into in fraud of the power, for the purpose of giving a benefit to a per- son who was by the donor excluded from being an appointee, or from deriving any advantage from the exercise of the power, it will be held wholly void : Agassiz v. Squire, 18 Beav. 431. Where there is no fraud, equity will not advert to the circumstances of anger and resentment, under which it may be alleged that an ap- pointment has been made. See Vane v. Lord Dungannon, 2 S. & L. 130, where Lord Redesdale said, he did not think it safe to advert to ALBYN V. BELCHIBR. 589 such objections, as there would be no end of them, if they were admit- ted as grounds for questioning appointments, since in almost all these cases, where there has been an inequality in the appointment, something of that kind has existed. See, also, Supple v. Lowson, Amb. "729. If under a power of appointment and selection among children, an appointment be made upon a condition to be performed by the appoin- tee, not authorised by the power, the appointment will be good, but the condition void: Stroud v. Norman, Kay, 313 ^ Re Lord Sondes' Will, 2 Sm. & Giff. 416 ; Walt v. Creke, 3 Jur. N. S. 56, 3 Sm. & Giff. 362, and see Stuart v. Lord Gastlestuart, 8 Ir. Ch. Rep. 408. The principle laid down in Aleyn v. Belchier, viz., that a power must he executed bond fide, and for the end designed, is applicable also to another class of cases where parents having power to raise portions for children, and even to fix the time when they are to be raised, will not be allowed by a Court of equity, as personal representatives of a de- ceased child, to derive any advantage from an appointment made to the child during infancy, and whUe not in want of a portion, especially if the death of the child, at the time of the appointment was expected. Thus in Hinchinhroke v. Seymour, 1 Bro. C. C. 394, a father, under a power, in a settlement to raise portions to be paid at such time as he should appoint, directed the trustees to raise 10,000Z. immediately for his daughter, then fourteen years of age, who soon afterwards died ; he, as her administrator, filed a bill against the trustees to have the 10,000Z. raised for his own use, but Lord Thurlow dismissed the bill, observing, " The meaning of a charge for children is that it shall take place when it shall be wanted ; it is contrary to the nature of such a charge to have it raised before that time. And although the power is, in this case, to raise it when the parent shall think proper, yet that is only to enable him to raise it in his own life, if it should be necessary. It would have been very proper so to do upon the daughter's marriage, *or p^„Q„-, for several other purposes ; but this is against the nature of the '- -' power." So, also where a fund was limited to a father for life, with re- mainder to his children, in such shares as he should appoint, and in de- fault of appointment to the children equally, the father released the power as to a portion of the funds so as to vest a share of it in himself as executor of a deceased son, who, in default of appointment, took a vested interest, the court refused to order the transfer of the share to the father ; Conyngham v. Thurlow, 1 Russ. & My. 436. " The case of Lord Sandwich,'' observes Lord Chancellor Sugden, " where a father, who had a power of appointment among his children, thinking one of them was in a consumption, appointed to that child, in order that he might take as the child's administrator, decides that if a father, having such a power, charges a portion for a child, not because the child wants it, but because it is sickly and likely to die, the Court has power to defeat it : " Keily v. Keily, 5 Ir. Eq. Rep. 442 ; 4 D. & 590 FRAUDS ON POWERS. W. 55 ; S. C, cited 11 Ves. 4*79. See also, Lord Pawlefs case, 2 Vent. 366 ; Edgeworth v. Hdgeworth, Beat. 328 ; Gee v. Gurney, 2 Coll. 486 ; Wellesley v. Earl of Mornington, 2 K. & J. 143. An appoijitment however to an infant child before he wants it, of a sum already set apart, will not be as invalid, merely because the ap- pointor may, in -the event of the child's death, derive some benefit from it to the disappointment of those entitled in default of appointment : {Butcher v. Jackson, 14 Sim. 444 : Hamilton v. Kirivan, 2 J. & L. 393 ; Beere v. Hoffmister, 23 Beav. 101 ;) a fortiori will the appointment be good if the parent himself can derive no benefit from it, although upon the death of the child the mother takes as his representative to the ex- clusion of the persons who would have been entitled in default of ap- pointment. Thus in Fearon v. Deshrisay (14 Beav. 641) a father had power of appointing a fund amongst his children, their shares to vest at such ages as he should appoint, and if he made no appointment, it was to vest in them equally at twenty-one or marriage, and there was a gift over, if there should be no child entitled under the trusts or power : on the birth of a son, the father executed the power by giving the whole to such son, but afterwards upon an exppcted addition to his family, he, being in a weak state of health, revoked the former appointment and executed the power in favour of all his children who should be living at his death, equally. The father then died. It was held by Sir John Romilly, M. R., that the appointment was good, as not being a fraud on the power, and that upon the death of one of the children the mother was entitled to her share as administratrix. " To say," ob- served his Honor, " that because the settlement specifies the manner in which the fund is to go if unappointed, the power must necessarily be partially cut down, so as to prevent the donee from disappointing those to whom the property is to go in default of appointment, does not ap- pear to me a fair conclusion .... In the present case it is mani- fest that the appointor could gain no personal advantage for himself, by *the mode in which he has executed the power; for the per- '- -' sons in whose favour the appointment is to take effect could not be ascertained until his own death. All the cases therefore in which the donee obtained an advantage by the execution of the power may be excluded from my consideration. I cannot speculate on what other objects he might have had, if I find that he had the absolute power o'f appointment amongst his children, and that he exercised it in such a manner that he could not obtain any personal advantage from it." Although it would doubtless be a fraud upon the trusts if trustees having power of advancing moneys to an infant under powers of main- tenance and advancement, laid out money, for instance, in the purchase of a commission in the army, with the intention that the infant should by sale of the commission obtain the money for other purposes, that will not be the case where the advance has been bona fide made, al- ALETN V. BELCHIER. 591 though the infant is soon afterwards obliged to sell his commission in consequence of his debts, and he or his assignees for value, if without notice of any impropriety in the sale, will be entitled to the proceeds thereof: Ldwrie v. Bankes, 4 K. & J. 142. A tenant for life may clearly release a power to appoint amongst children ( West v. Berney, 1 Russ. & My. 434 ; Horner v. Swarm, T. & R. 430 ; Smith v. Death, 2 Madd. 371 ; Bickley v. Quest, 1 Russ. & My. 446 ; 1 Bligh, 15 ; Davies v. Huguenin, 1 Hem. & Miller, 730), o"r may covenant with a mortgagee of his life interest not to exercise a power of charging the estate with portions for younger children {Hurst v. Hurst, 16 Beav. 372, and see Miles v. Knight, 17 L. J. (N. S.) Ch. 458 ; 12 Jur. 666), or with creditors to make a certain appointment by will in favour of a child an object of the power: Coffin v. Cooper, 13 W. R. (V. C. K.) 571. But no effect will be given to a release of a power by a father, so as to vest property in himself, which was intended for his children ; or in other words, a power given for a particular purpose will not be allowed by a fraudulent circuity to be exercised for a different purpose. Thus, in Cumnghame v. Thurlow, 1 Russ. & My. 436, where a fund was lim- ited to a father for life, with remainder to his children, in such shares as he should appoint, and in default of appointment to the children equally, the father released the power as to a portion of the fund, so as to vest a share of it in himself as executor of a deceased son, who, in default of appointment, took a vested interest. Sir L. Shadwell, V. C, although he was of opinion that the power was extinguished by the re- lease, nevertheless decided that the Court ought not to give effect to the release, so far as it operated *to vest a share of the fund in the father, who was the donee of the power. In the case, how- ^ -' ever, of Smith v. Houblon, 26 Beav. 482, a father had an exclusive power of appointment in favour of his children over a fund, which in default of appointment was limited to them equally, and as representa- tive of a deceased son he was, in default of appointment, beneficially entitled to one-third of the fund. The father released the power to his mortgagees. A bill was filed by the mortgagees, praying, amongst other things, for a declaration that the deceased son's share, on the release of the power, became vested in the mortgagees. Counsel for the mortgagees distinguished the case from Cuninghanie v. Thurlow, inasmuch as there the donee of the power, by the deed releasing it, obtained for himself a personal benefit, to which he would not other- wise have been entitled ; whereas in the case under consideration, the release was to the mortgagees, as against whom the mortgagor could not execute the power in derogation of his own grant. It was held by Sir John Romilly, M. R., that the power had been effectually released, and he declared the rights of the parties consequent thereon. If the consent of another person to the exercise of a power is requi- 592 FRAUDS ON POWERS. site, and that consent is obtained by misrepresentation, the appoint- ment will be set aside. Thus, in Scroggs v. Scroggs, Amb. Bliint's ed. 272, and App. 812, a case which falls entirely within the principle of Aleyn v. Belchier, a father was tenant for life, with remainder to the use of such of his son and sons as he, with the consent of the trustees, or the survivor of them, should appoint, and, in default of appointment, to his first son in tail male. The father, by misrepresenting his eldest son to the surviving trustee as extravagant and undvLtit\i\, prevailed upon him to consent to an appointment to a younger son. Upon a bill being filed by the eldest son, it was proved that the son was dutiful and not extravagant, and that the father, from improper motives, had mis- represented him to the trustee. The appointment was set aside by Lord Hardwicke, who observed, that if the trustee and father had met fairly, and without imposition, and considered the family circumstances, and had executed the power for such reasons as biased their judgment, the Court would not interfere ; but that, upon the wtiole, he was of opinion that it was a power accompanied with a trust, and that it was executed by an imposition on the trustee, who was designed to be a check on the father. It seems that where in a marriage settlement there is a power of revocation and new appointment, with the consent of the trustees, *it will be presumed that it was the intention of the parties that L -' such consent was only to be given for the benefit of the objects of the settlement, and that if it be given merely for the purpose of put- ting money into the hands of the father, the revocation and new appointment will be considered as a fraud upon the power, and conse- quently void. See Eland v. Baker, 29 Beav. 131 ; there, by a marriage settlement, land was settled by the father of the lady to the wife for life, remainder to the husband for life, remainder to the children of the marriage. And there was a power to the father of the ladj^ and the husband and wife, with the consent of the trustees in writing, by deed absolutely to revoke and make void all or any of the uses or trusts, and also by the same or any other deed to limit and declare new uses and trusts in substitution for those revoked. The father of the lady, and the husband and wife, with the consent of the trustees, revoked the set- tlement so far as was necessary, and appointed the property to one of the trustees in fee to secure a sum of money advanced to the husband. The estate was afterwards sold under a power contained in the mort- gage deed. It was held by Sir John Romilly, M. R., that a good title could not be made under it. " I do not," said his Honor, " dispute the proposition, that a person may in a marriage settlement introduce a proviso which shall simply put an end to the deed But I consider this power of revocation to be for the purpose of re-limiting the estate, and re-limiting the estate to any new trusts and declarations. How must the estate be re-limited ? To what trusts and ''with what ALETN V. BBLCHIBR. 593 declarations ? The answer is, to trusts for the benefit of the persons who are the cestuis que trust of the instrument according to the true scope and intent of the deed itself. .... How could it be said that this is a fair exercise of the discretion of the trustees in favour of theii: cestuis que trust, if they exercise it in such a manner so as totally to defeat the whole beneficial interest of those persons whom, as trus- tees, they are bound to protect ? " And after observing in addition to this upon the objection that the mortgage was to one of the trustees who became thereby pro tanto a purchaser of the estate, his Honor said it was impossible to force the title upon a purchaser. Where a person makes an appointment which is afterwards set aside as being in fraud of a power, the question is undetermined whether in the event of his not having reserved a right of revocation and new ap- pointment he can again exercise his power. The Duke of Portland V. Topham, 11 Ho. Lo. Ca. 32. It is, however, clear that where an appointment has been set *aside by reason of what has taken place between the donee ^ , r*4ooi of a power and an appointee, a second appointment by the *- -■ same donee to the same appointee cannot be sustained, otherwise than by clear proof on the part of the appointee that the second appoint- ment is perfectly free from the original taint which attached to the first : Topham v. The Duke of Portland, 5 L. R. Ch. App. 40. It has been intimated in a recent case, where a person was donee of a power to be exercised only by a will, in favour of children, that a covenant on the marriage of a child to exercise the power by appoint- ing a certain share in favour of such child, may be illegal and void — upon the ground that the power is fiduciary, to be exercised by will only ; so that up to the last moment of his life, the donee was to have the power of dealing with the fund as he should think it his duty to deal with it, having regard to the then wants, position, merits, and necessities of his children : per gir W. M. James, V. C, in Thacker v. Key, 8 L. R. Eq. 414, 415 ; where, however, it was not necessary to decide the point. In the subsequent case of Bulteeb v. Plummer, 6 L. R. Ch. App. 169, Lord Hatherley, C, said, that to hold an appointment made pursuant to such a covenant " bad as a device, would be to strain the doctrine as to improper appointments too far." There is another 'class of cases to be noticed, in which Courts of equity have interposed, upon the same principle, but not with the same beneficial results as in Aleyn v. Belchier ; viz., where a person having a power of appointing property amongst a class, although with full dis- cretion as to the amount of their shares, has exercised it by appointing to one or more of the objects a merely nominal share; such an appoint- ment, although valid at law, will, if executed previous to the passing of 1 Will. 4, c. 46, be set aside as illusory, not being exercised, bona fide for the end designed by the donor. To illustrate the doctrine of illusory VOL I. — 38 594 FRAUDS ON POWERS. appointments, suppose A. had a power to distribute 100, OOOZ. amongst a class in such shares and proportions as he should appoint, and he gave one of the class five shillings only, that would be at law a good execution of the power : Morgan v. Surman, 1 Taunt. 289. But such an appoint- ment, or an appointment of ten guineas, or of any sum merely nominal, taking into consideration the amount to be distributed, and the number of persons amongst whom it is distributable, will, if executed previous to the passing of 1 Will. 4, c. 46, be held void in equity as illusory. It would, indeed, be perfectly competent to the donee of a power to make a very unequal distribution of the fund, provided that the inequality was not so great as to lay the ^appointment open to the objection of L -' its being merely nominal and illusory, and, consequently, a fraud upon the donor of the power, who, it would be presumed, intended that each of the objects of the power should take a substantial share. Amongst the earlier cases on this subject, see Gibson v. Kinven, 1 Vern. 66 ; Wall v. Thurborne, 1 Vern. .^355, 414, and Cragrave v. Perrost there cited ; Astry v. Aatry, Prec. Ch. 256 ; Maddison v. Andrew, 1 Ves. 57 ; Coleman v. Seymour, 1 Ves. 211 ; Vanderzee v. Adorn, i Ves. T71 ; Spencer v. Spencer, 5 Ves. 362. The doctrine applies to appoint- ments. of real as well as of personal estate: Pocklinglon v. Bayne, 1 Bro. C. C. 450. Much litigation arose in consequence of the great difficulty of decid- ing what was a substantial, and not merely an illusory share ; and great dissatisfaction with the doctrine was expressed by the most eminent judges, who endeavoured, in many cases, to narrow it. In Wilson v. Piggott, 2 Ves. jun. 351, where there was a sum of 4000L to be appointed amongst four persons. Lord Alvanley said, that an appointment of 250Z. to one of them would have been good. In Kemp v. Kemp, 5 Ves. 849, a person having a power of appointing nearly 1900L among three chil- dren, appointed lOZ. to one child, bOl. to another, and the remainder to the third. Lord Alvanley, M. R., in his judgment, observed, " I should hardly have conceived that 50L could be considered a substantial part ; but the sum of lOZ. to the daughter was evidently meant to be no gift; the mother merely supposing herself to be under the necessity of giving something to each. . . . I am bound to say the bequest of lOZ.was clearly meant as an illusion, and not as an execution ; therefore the ex- ecution is void. It is vain now to lament, as I have in many other cases, that this Court did not follow the rule of law ; but now this is so settled, that no judge will, and certainly I will not, presume to go against it. The Court must decide whether the share is substantial or not." In the celebrated case of Butcher v. Butcher, 9 Ves. 382, the objects of tlie power were nine in number, and the fund to be appointed amongst them about 1T,000Z. To some of the objects of the power shares of 200Z. Throe per Cents, only were given. Sir W. Grant, M. R., held the appointment not to be illusory, but, like Lord Alvanley, strongly ALETN V. BELCHIER. 695 disapproved of this doctrine ©f equity. " To say," observed Ws Honor, " that under sucli a power an illusory share must not be given, or that a substantial share must be given, is rather to raise a question than to establish a rule. What is an illusory share, and what is a substantial share ? Is it to be judged of upon a mere statement of the sum given, without reference to the amount of the fortune which is the *sub- r j qq-i ject of the power ? If so, what is the sum that must be given, to exclude the inference of the Court ? What is the limit of the amount at which it ceases to be illusory, and begins to be substantial ? If it is to be considered with reference to the amount of the fortune, what is the proportion, either of the whole or of the share that would belong to each upon an equal division ? In terms, the power, though limited as to objects, is discretionary as to shares. A Court of law says, no object can be excluded, but there it stops ; it does not attempt to correct any, the extremest, inequality in the distribution. . . . As no case has been found, in which a sum of this amount has been declared illusory, there is no ground upon which I think m^'self justified in determining that this is an invalid ai^pointment." So in Bdx v. Whitbread. 16 Ves. 15, where the fund to be appointed between two children, objects of the power, was 2500L Old South Sea Annuities, and lOOZ. stock was given to one child, and 2400L to the other, Sir W. Grant, M. R., referring to his decision in Butcher v. Butcher, held that the appointment was not illusory. So, also, in Mocatta v. Lousada, 12 Ves. 123, the fund was 2500Z.; the objects of the power were five in number : to some he gave only a share of 331. 6s. Sd. Sir W. Grant, M. R., held the appointment not illusory. " I adhere," said his Honor, " to the rule I laid down in Butcher v. Butcher, that I will go as far as I am bound by authority, but no farther. Show me a case in which a specific sum, or an equal proportion of what would be the share of each object of the appoint- ment upon an equal division, has been held to be illusory, and I will in the same case make the same decision. But, where I am deprived of the guidance, or freed from the compulsion, of authority, I will not hold any appointment to be invalid upon that ground of objection. The ease of Kemp v. Kemp is not an authority for this case ; for the discus- sion of that turned not upon the 50L, but upon the lOZ. All that is de- cided in that case is, that the appointment of lOL was, under the cir- cumstances, illusory, therefore I must hold this appointment to be good, adhering to the rule I laid down in Butcher v. Butcher ; for this sum of 33L 6s. 8d. is not the same specific sum, or the same proportion of the share of each child, upon an equal division, that has been, in any former instance, held to be illusory." See, also, Duke v. Sylvester, 12 Ves. 126, where his Honor adhered to the same rule. liord Eldon, however, although he aflirmed the decision of the Master of the Rolls, in Bax v. Whitbread and Butcher v. Butcher (see 16 Ves. 15 and 1 V. & B. 19), disapproved of the rule there laid down by the 596 FRAUDS ON POWERS. Master of the Rolls. *In the former of these cases his Lordship ■- -^ observes, " I should pause on giving judgment, if bound to de- cide upon those authorities with reference to the principle stated in these late cases, now before me, which, in efifect (and it would be better to do it in words), destroys all the authorities, as no two cases will probably ever be the same. The sum of 50L being given in one family, and by one will, .it is difficult to imagine that the identity of the sum or the proportion, can afford the ground of determination in another family and upon another will. The motives, also, must be furnished by the same circumstances, whether good conduct or misconduct ; a provi- sion by a parent or by a third person ; circumstances, if the Court is at liberty to regard them, of utility ; for instance, in the case of a ppwer to appoint between two children, and the situation in life of one of them, the effect of the appointment may enable him to do more for the other, than if he had an equal share. If, therefore, it is established that the Court has this authority to consider, whether the execution of such a trust, or power coupled with a trust, is reasonable, it seems to me better to deny the doctrine at once, than to lay down a rule that will destroy it in effect ; looking only to sums and figures ; excluding circumstances unless in the same case ; and considering in each case, merely, whether the motives and circumstances by which the judgment was so regulated, as among the different objects, were the same The result is, that from the time of Lord Nottingham the Court has taken upon itself the duty of exercising this discretion ; and I should feel great embar- rassment, if, on account of the difficulty and the apprehension of not well exercising it, I should step aside from the path of my predecessors, and be deterred from doing it as well as I can ; confining myself to the inquiry, whether a case precisely the same had ever occurred ; taking as my rule of acting, that circumstance, instead of the principle decided by former cases." If a share not illusory comes to one of the objects in default of ap- pointment, it will be considered as an appointment, and no question of illusion will arise: Wilson v. Piggott, 2 Ves. jun. 351. An appointment to some only of the objects of a power which does not authorize an exclusive appointment may be rendered valid, by the partial failure of the appointment in consequence of its being, to the extent of which it fails, a fraud upon the power : Hanking v. Barnes, 12 W. E. (V. C. K.) 565. If, under a power to appoint amongst all the children, a part is well appointed to some, leaving a share not illusory, which is afterwards appointed, so as entirely to exclude one, the last *appointment only will be void : Wilson v. Piggott, 2 Ves. jun. L -I 355. Formerly, an illusory appointment might be justified, and equity would not give relief against it when misbehaviour was shown in the child to whom such illusory share was given : Maddison v. Andrew, 1 ALEYN V. BELCHIER. 597 Ves. 57 ; but this doctrine was overruled in Kemp v. Kemp, 5 Ves. 855 ; 1 V. & B. 9T. Where, however, gross inequality is accounted for by the situation of the children, and is humane and wise and discreet, the Court will not call it illusory : Boyle r. The Bishop of Peterborough, 1 Ves. jun. 310, per Lord Thurlow. Thus, an appointment of a very small share to a son, who is an uncertificated bankrupt, would not be looked upon as illusory : Bax v.' Whitbread, 16 Ves. 15. So, if a parent has made a provision for a child, an appointment of a very small share to that child would not be held illusory : Bristowe v. Ward, 2 Ves. jun. 336 ; Smith v. Lord Camelford, 2 Ves. jun. 698 ; Long v. Long, 5 Ves. 445 ; Spencer v. Spencer, 5 Ves. 367. The provision, it seems, must have been made by the donee of the power: Mocatta v. Louaada, 12 Ves. 123 ; thougli Lord Alvanley thought that the same result would follow if the provision was made aliunde: Vanderzee v. Aclom, 4 Ves. 785 ; and see 16 Ves. 25 ; Lysaght v. Royse, 2 S. & L. 151, and 1 V. & B. 97. It is clear, however, that a provision moving from the donor of the power will not be sufficient : Kemp v. Kemp, 5 Ves. 861. The interference of Courts of equity, in cases of illusory appoint- ments, was so unsatisfactory in its results, that the Legislature at length interferred, and by stat. 1 Will. 4, c. 46, passed June 16, 1830, it was enacted that no appointment, which from and after the passing of the Act should be made in exercise of any power or authority to appoint any property, real or personal, amongst several objects, should be invalid, or impeached in equity, on the ground that an unsubstan- tial, illusory, or nominal share only should be thereby appointed to, or left unappointed to, devolve upon any one or more of the objects of such power ; but that every such appointment should be valid and effectual in equity, as well as at law, notwithstanding that any one or more of the objects should not thereunder, or in default of such appointment take more than an unsubstantial, illusory, or nominal share of the property subjected to such power; provided that nothing in the Act contained should prejudice or affect any provision in any deed, will, or other instrument creating any such power as aforesaid, which should declare the amount of the share or shares from which no object of the power should be excluded ; and provided also *that nothing in the Act contained should be construed, deemed or '- -' taken at law or in equity to give any other validity, force, or effect to any appointment than such appointment would have had if a substan- tial share of the property affected by the power had been thereby ap- pointed to, or left unappointed to, devolve upon any object of such power. See In re Stone's Estate, 3 I. R. Eq. 621. Lord St. Leonards has observed, with reference to this Act, that, " where it is intended that a party shall have a power to divide a fund among several objects in substantial proportions, according to his discre- 593 FRAUDS ON POWERS. tion, but shall not be at liberty to give a merelj"^ nominal share to any, the smallest sum which the person creating the power should wish each of the objects in any events to have, should be named, and it should be declared that the donee of the power shall not be at liberty to appoint a less sum to any of the objects.'' (1 Pow. 545.) The statute as to illusory appointments (1 W. 4, c. 46) has a retro- spective operation on any power of appointment in esse at the time of the passing of the Act, but executed afterwards (Beid v. Beid, 25 Beav. 469, 480) ; it does not, however, make valid an appointment which pre- vious to the Act would have been invalid, in consequence of the exclu- sion of certain objects of a power, not authorizing an exclusive ap- pointment : Minchin v. Minchin, 3 Ir. Ch. Rep. 167. [In the exercise of powers of appointment and dismissal, it is generally more prudent to state the conclusions arrived at, without giving the reasoning which led to them, for if the power be honestly exercised, the court will not interfere, while if the reason does not justify the conclusion, the court may correct it ; Bex v. Archbishop of Canterbury, 15 East, 117 ; Be Beloved Wilkes Charity, 3 Mac. & Gor. 440 ; S. C, more fully reported, 7 Eng. Law & Eq. Rep. 85. Thus in the very recent case of Hay man v. The Governors of Bugby School, Law Rep., 18 Equity, 28, which at- tracted much attention, the plain- tiff, while acting as head master of Rugby School, received a notifica- tion from the defendants, its governing body, that they had re- solved to dismiss him by virtue of their powers under the Public Schools Act of 81 & 32 Vict. c. 118, whose 18th section provided, that " The head master of every school to which this act applies shall be appointed by', and hold his office at the pleasure of the governing body." The plaintiff thereupon filed his bill to restrain the defendants from removing him, or electing any one as his successor, alleging that his dis- missal was due to the influence of certain members of the board, who, being hostile to him, had formed a scheme to dismiss him. The de- fendalnts having demurred for want of equity, the demurrer was, after extended argument, sus- tained, the court (Malins, V. C.) holding t I at, by the terms of the act, the plaintiff held his office at the mere pleasure of the defend- ants, and that " The clear result of the numerous authorities cited on both sides of the argument is, that all arbitrary powers, such as the power of dismissal, by exer- cising their pleasure, which is given to this governing body, may be ex- ercised without assigning any rea- son, provided they are fairly and honestly exercised, which they always will be presumed to have been until the contrary is shown, and that the burden of showing the contrary lies upon those who object to the manner in which the ALEYN V. BELCHIER. 599 power has been exercised. No reasons need be given, but if they are given, the court will look at their sufficiency."] " The general rule of law is, that the execution of a power must be according to the substan- tial intention and purpose of the party creating the power ; not re- straining or lessening it by a nar- row and rigid construction ; nor by a loose and extended interpre- tation, dispensing with the sub- stance of what was meant to be performed. Powers are to be con- strued equitably in a court of law as well as in a court of equity. And the general intention must be carried into effect, though it may defeat a particular intent." Per Thompson, C. J., in Jackson v. Veeder, 11 Johnson, 169, lU. But where a power is discretionary a court of law can grant no relief, and impose no penalty, in case of an unreasonable exercise of the discretion ; the remedy is only in equity. In Cloud v. Martin^ 1 Devereux & Battle's Law R. 397, a testator had directed that his grandson should be "raised and taken care of at the direction and care of his son, J. M.," and should be instructed in the English, Latin, and Greek languages ; and he ap- pointed J. M. one of his adminis- trators. An action on behalf of the grandson was brouglit upon the administration bond, for fail- ing to supply the grandson with funds for bis support and educa- tion according to the will ; but the Court held that the provision to be made for the grandson was entirely discretionary with J. M., and that his determination was binding at law. " Courts of equity," said Ruffln, C. J., " relieve against con- ditions, and prevent advantage being unconscientiously taken of their breach or non-performance ; and also control the unreasonable exercise by one, of a power or dis- cretion which may affect the in- terest of another person. The propriety of assuming to review and reverse the determination of one to whom a testator has given a discretion, absolute in terms, upon the ground that it was not a reasonable and just determina- tion, though arrived at after fair inquiry, and full deliberation, has not escaped animadversion; since it makes the instrument read so as to confer on the Chancellor the discretion which the maker of it declares he reposes exclusively in the individual selected by himself. But the jurisdiction is established ; and upon the facts now appearing, relief would certainly be granted in equity, there being no cause whatever assigned for the neglect to provide for the testator's grand- son ; and such neglect or refusal without cause, is, by itself, unrea- sonable ; and it does not appear that any fund was in fact provided. But a court of law is bound by the terms of the will ; and the acts, right or wrong, of him to whom the testator gives the au- thority to decide, must stand as parts of the will. It is the testa- tor's bounty, and must be taken subject to the restrictions by him imposed. If he puts it upon the will and judgment of another per- son, that will, however vicious, 600 FRAUDS ON POWERS, and that judgment, however erro- neous and unreasonable, cannot be controverted at law. If the law itself confers an authority or dis- cretion, it means a reasonable, and not an arbitrary one ; and guards its faithful exercise, by giving damages for its malicious abuse ; but a court and jury cannot limit a discretion, which parties for themselves declare shall be un- limited, or to which they have affixed no limit. Damages cannot be given for the neglect to exer- cise it, for there is no legal obliga- tion to do so. Nor can its exercise upon mistaken, unreasonable or dishonest motives, be set at nought as not being, for those reasons, obligatory ; because the motives do not impeach the legal power but only affect the conscience of the party. The Court is unable to find a case of such jurisdiction at law, and knows of no principle on which to base it." And this controlling power in a court of equity was further recognized, in Eaynesworfh v. Gox^ Harper's Equity, lit, 119, where a testator gave to his niece four shares, " or in lieu thereof one thousand dol- lars, as his brother (the executor) might think best.'' It was decided by Dessaussure, Ch., that the tes- tator must be considered as mean- ing " best " for the legatee. " This reasonable construction," he ad- ded, " seems also to be in accord- ance with a rule of equity, which has long prevailed and is of con- siderable extent and application. It is, that where the power of electing is given to a trustee, as to the rights of a third person, the trustee is bound to exercise that power most beneficially for the cestui que use. Now an executor invested with such a power, is trus- tee for the legatee, and is bound to follow this rule of equity; and he shall not exercise it illu- sorily. This principle is illustrated by many decided cases which are familiar. See 5 Ves. 848 ; Kemp V. Kemp, 16 Ves. 15 ; Bax v. Whitbread, 11 Ves. 4T9; M' Queen v. Farquhar." [Hence, when a power to appoint among brothers and sisters and their children, in such proportions as the donee of the power should think fit, was exercised by appointing the whole to one, the appointment was held void and eflfeet given to the pur- pose of the testator by a distribu- tion among all ; Lippincott v. Bidgway, 2 Stockton's Chancery, 164; and the same course would probably have been pursued had the appointment, although pro- fessedly to all, been so grossly un- equal as to be in fact a provision only for one ; Melvin v. llelvin, 6 Maryland, 530.] But the equitable jurisdiction to control the exercise of discretion- ary power of appointment among several persons, has been viewed with strong disfavor, if not entirely condemned, in some of the courts of this country. In Cowles et al. V. Brown et al., 4 Call, 47"?, where there was a power, after a life es- tate, to give among the nephews of the testator, " in such manner and( proportion as he (the donee of the power) shall think proper," it was decided that a gift of unequal proportions was not objectionable : ALETN V. BELCHIER. 601 " It was left to him," said Lyons, J., "to make the appointments according to his own discretion ; and then, what right has the court to control the execution ? The latitude which has been some- times taken by chancellors in Eng- land, has been reprobated, a differ- ent course is beginning to manifest itself there, 2 Fonb. Bq. 201 ; which meets my own approbation." A similar condemnation is passed upon this judicial authority in Fronty v. Fronty, 1 Bailej-'s Equity, 518, 529. "Powers may he general, or limited," says O'Neall, J., in delivering the opin- ion of the court in that case. " In the execution of a general power, there can be no rule but the dis- cretion of the party to whom it is confided. In a limited one, the limitations contained in it consti- tute the rule by which it is to be executed. In the former, no court can undertake to control that, which the party creating the power intended to liave to the honesty, good faith, and discretion of the person to whom he confided it. In the latter the courts do no more than execute the intention of the party by whom it is created, by declaring the execution of the power contrary to the limitations contained in it, void." " The doctrine of illusory ap- pointments, which, in England, has been carried to a most unwarrant- able length, and is reprobated by the wisest judges, is, nevertheless, predicated on the ground, that the power given has not been executed according to the intention of the testator. This, if it had been con- fined to plain and palpable viola- tions of the intention, as indicated by the words of the power, could have produced no conflict between law and equity. But when it is attempted to control a discretion- ary power of distribution among children, by saying that each must receive a substantial part, it is to substitute the discre- tion of the court for the discre- tion of the person to whom the power is confided. It is creating an equity against, and above the law, when it is our duty to follow, and obey the law ; to declare it, not to make it." [In GraeffY. Be Turk, 8 Wright, 52Y, the English rule that a power of appointment among several distributees, must be so exercised as to give each distribu- tee a substantial share of the fund, was held not to prevail in Penn- sylvania. It is well settled that a person having a power of appointment for the benefit of others, cannot use it for his own benefit, and if he does, the exercise of the power will be invalid ; Pratt v. Hogan, 5 Jones, Eq. 92. But the court will not in- terfere on a mere suspicion that the appointment was corrupt ; Bud- ington v. Munson, 33 Conn. 481 ; nor, as it seems, after the lapse of the period prescribed by the statute of limitations as a bar at law. In the recent case of Williams^ Appeal, 23 P. F. Smith, 249, a testator left the residue of a large estate to the defendant, his executor, in trust to purchase a lot of ground of such size, and in 602 FRAUDS ON POWERS. such location, as the latter should, "upon a broad and thoughtful foresight," deem most expedient, and thereupon to erect a suitable building for a public library, which, when completed, was to be conveyed to the complainants, " The Library Company of Phila- delphia," an institution of old standing. During his last illness, and shortly before his death, the testator caused a lot to be pur- chased, and asked his executor to ascertain whether the Library Company " would make any ob- jection to it as a site." The exe- cutor had a conversation with a Director of the Library Company, and having, as he supposed, ascer- tained his views, made a favorable report to the testator. The latter was " greatly pleased," and with- out altering his will, obtained an oral promise from his executor that he would build the library on the lot, and nowhere else. After the testator's death, the complain- ants, representing to the defendant that the erection of the building on the proposed site would, by reason of its remote and incon- venient location, be destructive of the usefulness of the library, begged him to consult with them as to its change to a more central location, and he was also informed that any increased outlay incident to the purcliase of another lot, would be met by voluntary contri- butions. The defendant having re- fused this request, partly on the ground that considering the pro- posed site to be the best, he him- self, in exercise of his power, chose it for a site, and chiefly be- cause of his promise to the testa- tor, which he regarded " as sacred as an oath," the complainants there- upon filed a bill setting forth that the trust confided to the defend- ant was in the nature of property of the complainants, to be exercised for their benefit ; that the verbal directions of the testator varying the nature of the trust reposed in the defendant, were void by rea- son of not being in writing, and signed in accordance with the statute of wills ; that although the defendant might conscientiously believe that he did himself select the site, yet by reason of his solemn promise and pledge to the testator, it was not possible for him to make a voluntary selection of that, or any other site, because he had bound the discretion given him by the will by under- taking to build the library on that site, and nowhere else. The bill, therefore, prayed that it might be declared, 1. That the power con- ferred on the defendant bj"^ the will was a trust, to be administered by him only in the manner in which all trusts ought of right to be ad- ministered ; 2. That the defendant being before and when the trust vested in him, under an obligation which bound his discretion as to the selection of a site, was dis- qualified from exercising the trust confided to him, and that it be re- ferred to a master to report what would be a fit location for the building, to the end that the intent of the testator, as contained in his will, might be carried into full effect. In his answer, the defend- ant among other things, averred ALEYN V- BEL CHIBR. 603 that, Botwithstanding his sacred pledge to the testator, he deemed himself quite as free to exercise his judgment as though it had never been made, and gave his reasons for considering the site he had chosen to be the best under all the circumstances. After testi- mony taken, and a reference of the cause to a master, the latter re- ported, amongst other things, that the defendant had, by his promise to the testator, so crippled his discretion as to make it impossible to say how much his preference for the proposed site was due to his unbiased opinion, and how much to his promise, and that the trust under the will should, ac- cording to its true intent and meaning, be exercised under the supervision of the court accord- ing to the course and practice of chancery. Exceptions h ving been filed to this report, it was contended on behalf of the complainants, that the testator's intention must be sought in the will, and not dehors ; That the intention there indicated, was that his executor should with a " broad and thoughtful foresight select a lot in any situation he may deem most expedient ;" That the power thus conferred did not vest in the executor until the testator's death, and could not legally be exercised before ; That when the testator died,it became the executor's duty to make a " thouglitful " choice in view of existing circumstances; That a material circumstance, which was not anticipated by the testator, and as to which he had been misinformed, then became known, to wit, the unwillingness of the Library Company to ocfupy the lot which the executor had by an- ticipation selected for their use ; That if the executor had been free to choose, he would have been in- fluenced by their wishes in this re- gard, when taken in connection with the proposal to subscribe the difference between the lot which he had chosen, and one in a cen- tral situation; That the promise assigned by the executor as a reason for the rejection of this offer, was in effect a promise not to exercise the discretion conferred by the will at the proper time, to wit, after he became executor, and not less in derogation of the will, than if he had promised to select a lot outside of the city limits ; That having thus bound himself to act in a particular way, it was im- possible for him to say what he would have done if he had been free, because no one can certainly say what his mind would be under circumstances which have not oc- curred. It followed, that the al- leged choice was no choice, because the executor had no power under the will to choose while the testa- tor lived, and had by a promise " not less sacred than an oath," precluded himself from choosing, when the proper time arrived after th^ testator's death. The testator being dead, the Library Company had neither the benefit of his judg- ment, nor of that of the executor, whose promise obliged him to act without regard to circumstances which could not be known to the testator. The executor's course sacrificed the testator's main object 604 FRAUDS ON POWEKS. to a secondary purpose, of which there was no legal evidence, be- cause, by the terras of the will, the available funds of the estate were to be employed in the erec- tion of a building to be used as a receptacle for the books of the Library Company, and if the edi- fice was not occupied by the Com- pany, it miiiht remain for years with empty shelves. The report was confirmed by the judge before whom the cause was heard, but upon appeal to the Court in Banc, this decision was reversed, and the bill ordered (two of the five judges dissenting) to be dismissed. The court (per Agnew, J.) considered that the defendant's averment in his answer, that, not- withstanding his promise to the testator, he was quite unbiassed, was conclusive as to this, and that even if influenced by it, it was " a proper influence, and does not show a man void of discretion, and so bound by conscience, that his judgment is lost in the obligation of a foolish pledge ;" that even al- though a court cannot regard a verbal direction of a testator, which is in conflict with a power con- tained in his written will, yet that it was the province of equity to follow the mind of the testator, and to give effect to the solemn act of a testator who had involved his estate in the obligation of a contract in the line of a will, and to carry out its very intent, and hence equity could not regard the promise of the executor to follow the wishes of the testator, as a constructive fraud on the power. Of this decision it may be re- marked, that the fallacy of the argument that the court, by look- ing at what the testator said he desired, and what the executor promised to do, gave full effect to the wishes of the former, is de- monstrated by the fact that it prac- tically repeals the Statute of Wills, and it is, of course, immaterial whether the verbal wishes of a tes- tator are in accordance with, or opposed to, his written will. A re- markable instance occurred in the same court in the unreported case, shortly before decided, of Alter'' s Appeal, in which a husband and wife having made mutual wills, each in favor of the other, each, by mistake, signed the other's will ; and though the evidence was conclusive, yet, the court correctly held, even in the face of an act of the Legislature, passed to help the difficulty, that the wife, who died first, died intestate. If a testator were verbally to direct his executor to bestow his bounty in a quarter other than that named in his will, such a direction would not in any court be suffered to prevail, and it seems difficult to distinguish such a ease from one where the testator having in his will left to his executor an uncontrolled dis- cretion, then directs him ver- bally to execute it in a particular manner, and no other. Subject to certain well known exceptions, it is to the will alone, and not to any outside words or acts of the testa- tor, or of his executor, or of any one, that a court can afford to listen. As respects the conclusiveness COUNTESS OF STRATHMOKE V. BOWES. 605 of the defendant's averment in his to the case of Topham v. Duke of answer, that his judgment was un- Portland., supra, where the defend- biassed, we may refer to the case ant swore that his making the ap- cited supra of Wellesly v. Morn- pointment complained of was un- ington, where the defendant hav- influenced by obedience to his ing sworn that he exercised a father's well-known wishes, and it power of appointment for purposes was considered either that he had other than his own ulterior benefit, sworn incorrectly, or was inca- his answer, necessarily uncontra- pable, from his bias, of knowing dieted, was said by the court to be whether he was or was not influ- " monstrous and incredible ;" and enced.] COUNTESS OF STEATHMORE v. BOWES. [*405] MARCH 2 AND 3, 1789. REPORTED 1 YES. JUN. 22.1 Fraud on Marital Rights.] — A woman pending a treaty of marriage with A., settled all her property to her separate use, with his approbation; a few days after, B., by stratagem, induced her to marry him, the day after she first thought of it; B. had no notice of the settlement. The settlement was established, and a deed of re- vocation obtained by duress set aside. The burthens, to which a husband is liable, are a consideration for Ms marital rights, upon which, therefore, fraud may be committed. Conveyance by a woman under any circumstances, and even the moment before marriage, is good, prima facie : is bad only if fraudu- lent, as where it is made pending the treaty, without notice to the in- tended husband. Ladt Strathmore being seised and possessed of great property, both real and personal, pending a treaty of marriage with Mr. Grey, conveyed all her real, and assigned all her personal, estate to trustees for her sole and separate use, nothwithstanding any future coverture. This settlement was prepared with the appro- bation of Grey. A few days after the execution, hearing that Mr. Bowes had fought a duel on her account with the editor of a newspaper, who had traduced her character, she determined to marry him, and the marriage took place the next day. Bowes had no notice of the settlement. There were two bills : an original bill by Lady Strathmore, to set aside a deed revoking the settlement, as having been obtained ' S. C, on the first hearing, 3 Bro, C. C. 345 ; 2 Cox, 28, affirmed on appeal, 6 Bro. P. C. 437, Toml. ed. 606 FRAUDS ON MARITAL RIGHTS. r*4071 ^^' duress ; &nd a cross bill by Mr. *Bowe8, to set aside *- -' the settlement, as against the rights of marriage, and a fraud upon him, and to establish the deed of revocation. An issue was directed, to try whether the deed of revocation had been obtained by duress ; and the verdict in the Common Pleas was against the deed. The cause coming on upon the equity reserved, Mr. Justice Buller, sitting for the Lord Chan- cellor, decreed in favour of Lady Strathmore, and dismissed the cross bill with costs. It came on again, upon the petition of Mr. Bowes, for a re- hearing, and reversal of that decree so far as it dismissed the cross bill. Mr. Richards, for Mr. Bowes. — The question is, whether this settlement made before marriage, is valid or not, as being in de- rogation of the common rights of marriage. A wife, hy the marriage contract, becomes extinct, from the nature of it, for several civil purposes with regard to which she merges in the husband. He becomes liable to all her debts, and answerable for all her acts that do not amount to felony ; and even for that, if committed in his presence; because her mind is supposed to be under his coercion. In order to enable him to answer this, he has by the law all her property. It is absurd to say, the wife shall by her own act deprive the husband of what the law has given him. It was not decided till lately, that a legacy to a wife for her sole and separate use would have been good without the interposition of trustees ; and this case is much stronger, because to be construed more strictly than a devise ; nor can the interpo- sition of trustees make any difference, because it cannot alter the nature of the thing. As to his not having made any settlement on her, many marriages are made without any : and in this case it could not be necessary ; for she had 10,00o^. or 12,000 a year, a great estate for life, and much personal property. There is another principle very material : marriage, by the law of England, gives the husband' the whole dominion over the property, and [*408] also over the person of his wife, except as *to murder; for, by the old law, he could not be punished for cruelty towards her. The civil existence of the wife merged in that of the husband ; he is the head of the family : to make another, would be against the policy of the law. It the wife can by her own act, against the consent of the husband, make herselt inde- pendent of him, it will destroy that subordination so necessary in families, which is analogous to that in the state, and tends to sup- port it ; for if Lady Strathmore is right in this, the husband is become a cipher in his own house ; for he cannot educate his children, or do any other act, which by law he has a right to do. 'J he deed was executed on the 10th or 11th of January, and the marriage took place on the 17th. If the deed had been meant fairly in contemplation of marriage, the husband would have been a party to it : there is no instance to the contrary ; and it is COUNTESS OF STRATHMORE V. BOWES. 607 necessary, in order to testify the consent of the husband. lu Howard v. Hooker, 2 Ch. Kep. 81, a settlement by the wife, be- fore marriage, without notice to the husband, was set aside. In Lance v. Norman, 2 Ch. Rep. 79, a bargain entered into by the wife, before marriage, was set aside, because the husband was not a party ; and this case is stronger : because there, the wife was only made poorer ; but here she is made quite independent of the husband. In Carlelon v. Dorset, 2 Vern. 17, the estate was made over, before marriage, to trustees without privity of the husband ; and a conveyance wasdeci'eed to the six-clerk, and the personal prop- erty to be paid into Court for the husband, because in derogation of the rights of marriaije ; and in Edmonds v. Deimington, cited in the foregoing case, a deed of settlement made before marriage, without notice to the husband, was set aside. In Paulson v. Wdlingion, 2 P. Wms. 535, Lord King said, that if a woman before marriage settled her property, without giving notice to the intended hus- band, it would, as to him, be fraudulent and void. In Cotton v. Xing, 2 P. Wms. 353, 674, Lady Cotton, widow, had ten children by her first husband, and belore the second marriage, by in- denture settled part of her fortune in their favour *(re- r^^ng-i serving, however, a considerable portion), without notice '- ^ to the husband. King filed a bill to have this deed delivered up to him : but as the transaction of making the deed had been pub- lic ; as she had so many children by her first husband, for whom it was reasonable to provide before she entered into a second marriage ; and as the second husband was a person in mean cir- cumstances, and had received a good fortune with her ; and as she had reserved something to herself. King's bill was, for these reasons, dismissed. This decision shows, that if it had not been for the benefit of the children of the first marriage, and on ac- count of these several circunristances, it would not have been good. Upon these cases, and the principle of the thing, this set- tlement is void, as being in derogation .of common right. It is to be observed, that in all these cases something was reserved ; here there is nothing ; for Lady Strathmore has conveyed all her real and assigned all her personal, property to trustees, for her own use; and the circumstance of appointing trustees will not alter the nature of the thing, though it drives us into a Court of equity. iVIr. Mansfield, Mr. Hardinge, Mr. Law, and Mr. Kivg, for Lady Strathmore. — Lady Strathniore is in possession by a deed to trustees, giving her own property to her use. Jt was done in contemplation "of marriage with another person; therefore not fraudulent as to Mr. Bowes, unless any deed by a feme sole, by which she disposes of her property, shall be construed to be fraudulent, if not communicated to any future husband. Want of communication is the only circumstance that can be alleged ; but that is very diflerent from concealment, for which there can be no pretence here. It is true, a man by marrying a woman gains a dominion over her property, and in a great degree over 608 FRAUDS ON MARITAL EIGHTS. her person, though perhaps not in the extent contended ; but he had nothing to do with this property, for it was not in her at the time of the marriage, having been previously vested in trustees : and as every man knows that a woman may settle her property so that a future husband shall not be able to r*4l01 ^^-^^ch it, Mr. Bowes ought to have inquired about it ■- -^ beforehand. There is no pretence of actual imposition upon him, nor even upon G-rey. The deed was prepared by a gentleman of the lirst credit ; she had several children by Lord iStrathmore ; she was going to marry Mr. Grey, and make this previous settlement for her children ; and she acted meritoriously and honourably in so doing. The deed was with Grey's knowl- edge and under his direction ; his approbation of it appeared by his having called to know when it would be ready, and to hasten it ; and it was prepared, though not executed, a month before the time of the marriage, therefore not fraudulent as to Mr. G-rey ; and there is no authority for vacating a settlement made by a woman for the protection of her children without fraud. Mr. Bowes made no settlement on Lady Strathmore ; neither did Xing upon Lady Cotton, in the case cited (which was one of the grounds of the decision in that case), though Bowes had some fortune by a former wife. He took Lady Strathmore as she then was, with what she then had ; therefore there is nothing fraudulent, or that can entitle him to relict in this Court. Know- ing that she was a woman subject to sudden and violent impulses of generosity, he made use of a vile artifice to obtain her by means of a sham duel (for it is in every stage of the cause ad- mitted to have been so) with the proprietor of a newspaper, who had traduced her ; and the emotion and precipitation which he caused by this artifice, was. the cause which prevented the com- munication of the actual situation of her fortune.' After this Mr. Bowes made use of the most reproachful means to set aside this deed :; and the verdict w.as, that the revocation was obtained by violence. He would not have done this, had he not thought the deed a good one. The reason of the case is (nor is there a dictum to the contrary), that where a woman about to marry, represents herself as possessed of a fortune which she had previously dis- posed of, this Court will not permit the husband to be cheated. Howard v. Hooker, to which all the cases refer, was of that kind, r*4in '^^^'^S ^ specific fraud *upon the husband. The marriage L J had been broken off, and was brought on again by the interposition of friends, upon the idea of the husband that he was to enjoy the wife's fortune, in consideration of which he made a settlement on her of 500^. a year. In Lance v. Norman, the wife before marriage entered into a recognizance, concealed from the intended husband, and the object of it was to enable the creditor, who was her, own brother, to distress the husband ; and they had made an'attempt to defraud him before, by getting him to sign a deed which was in Latin, that he might not understand it, telling him it was only a memorandum. In Carleton v. Dorset, COUNTESS OF STRATH MORE V. BOWES. 609 the wife coijveyed all her fortune to trustees for her own use, with permission to herself to appoint, and in default of appoint- ment, to her own right heirs, and afterwards married : here the case was, that the husband had assurance that he was to enjoy the estate of his wife ; and the decree was upon the ground that it was a trust for her, with power to appoint ; and as she made no appointment, it was resolved to be a trust for her husband. Besides, in that case the fortune was paid into court, and a reasonable allowance was to be made to her. It has been re- marked, that the foundation of the decree in King v. Cotton was, that it was to provide for children, which has been said to be the only case in which this can be good : but the settlement on children, *or on any one else, will not make any difference; the question is, what right the husband has ; if he has any right, notwithstanding any voluntary disposition without notice to him, because he was deceived, the manner in which that deceit was practised will make no difference with respect to him ; for the ground for relief must be, that he was cheated, because the settlement was not communicated to him. King v. Cotton is for Lady Strathmore ; for Lady Cotton had disposed of her fortune so as to put it quite out of the power of her husband ; and yet the settlement was established. As to Eitmonds v. Dennington^^ Mr. Justice Buller suspected that it was misreported in Vernon, where it is only a loose note cited at the bar ; and, on inspecting the ^register, the decree turns out to be quite different rxA-i .7-1 from that report ; for the deed was established upon the ^ "-' ground of distinct notice to the husband ; and, in that case, as in this, the settlement was all her property. These cases, therefore, only go on the ground of fraud of the husband, of which there is no suggestion here. But this is not a question upon a deed ex- ecuted by a future wife pending a treaty of marriage with a future husband; nor upon a deed made in prejudice generally of marital rights ; nor of a settlement by a husband, by which he pays for his future power over the fortune of his wife. Suppose a husband to say he is indifferent as to the fortune of his wife, in order to appear disinterested ; suppose, having a fortune, he makes no settlement ; and suppose the marriage instantaneous, no time being given for communication or concealment, is it enough for the husband to say, his secret hope was disappointed ? The only pretence here is, that he expected her fortune would have been greater than it proved, which expectation he did not disclose. To make this deed valid, is only to put a safeguard in her hands against the consequences of an improvident marriage ; and she had a right, while sui juris, to baffle, for so much, what would otherwise have been the marital power of her husband. It is enough for us to say, Mr. Bowes was not cheated. Lord Chancellor Thurlow. — The mei-e question seems to be, what is the true foundation for setting aside an instrument prima 1 And see 1 My. & K. 631. VOL. I. — 39 610 FRAUDS ON MARITAL KISHTS. facie good ? Can less be imputed to it than fraud ? Or can it be void upon the notion of general policy, as has been urged for Mr. Bowes? If not, must not fraud be imputed? and, if so, willthe circumstances of its being made in contemplation of marriage •aifect it with fraud ? Suppose a relation had given 10,000^. for her sole and sejjarate use ; if she had represented it as her own absolutely, so that upon a marriage, it would have gone to her husband, this Court would have compelled the trustees to give it to the husband, but not otherwise ;' nor is there any dilierence r*/n SI between a *fortune so circumstanced by an act of her own L -' or of the donor. Consider what will be the effect of this void deed of revocation ? If he had joined with her to revoke that settlement and appoint new uses, he could not have rescinded that afterwards ; because he had affirmed the deed by acting upon it. If he had acted honestly upon it, as in the case I have put, he could not h^ve set that aside ; his counsel are to show that he may, because he has acted dishonestly upon it, which at present I think rather a vain attempt. Mr. Partri'lge was to have argued for Mr. Bowes, by way of reply, at his own request, but could not attend. Lord Chancellor Thurlow. — I never had a doubt about this case. If it is to be considered upon the ground of its being against a rule of judicial policy, the arguments for Mr. Bowes VTOuld have had great weight. The law conveys the marital rights to the husband, because it charges him with all the bur- thens, which are the consideration he jiays for them ; therefoi'e, it is a right upon which fraud may be committed. Out of this right arises a rule of law that the husband shall not be cheated on account of his consideration. A case of this kind came before me a few days ago.^ A woman adult, about to marry an infant, made a settlement, in contem- plation of that marriage, in which he joined, though an infant, for the purjDOse of expressing his consent. As it was upon fair consideration, and no fraud to draw him in as an infant, I thought the circumstance of its being fair would bind him, though as an infant, not capable of consenting ; according to which I held the settlement good, as phe was capable of conveying ; and as it was a public and open transaction, with the consent of the family, and consequently no fraud, though his being privy to it would not have concluded him from any rights as being an infant. A conveyance by a wife^ whatsoever may he the circumstances, and r*zlid.l ^^'''^ ^''^ moment before the marriage, is prima *facie good, '- -' and becomes bad only upon the imputation of fraud. If a,° woman, during the course of a treaty of marriage with her, makes, without notice to the intended husband, a conveyance of any part of her ' See Afhton v. M'Dougall, 5 Beav. 66. 2 Slocombe v. Glubb, S Bro. C. 0. 545. COUNTESS OF STRATHMORB V. BOWES. 611 p-o'perty, I should set it aside, though good ■prima facie, because affected loith that fraud. As to the morality of the transaction, I shall say nothing to that. They seem to have been pretty well matched. Marriage in general seems to have been Lady Strathuiore's object ; she was disposed to marry anybody, but not to part with her fortune. This settlement is to be considered as the effect of a lucid interval, and, if there can be reason in madness, by doing this she dis- covered a spark of understanding. The question which arises upon all the eases is, whether the evidence is sufficient to raise fraud. Even if there had been a fraud upon Grey, I would not have permitted Bowes to come here to complain of it. But there was no fraud, even upon Grey, for it was with his consent ; and so 1 cannot distinguish it from a good limitation to her separate use. Being about to marry Grey, she made this settlement with his knowledge ; and the im- putation of fraud is, that having suddenly changed her mind and married Mr. Bowes, in the hurry of that improvident transaction she did not communicate it to him ; but there was no time, and could be no fraud, which consists of a number of circumstances. It is impossible for a man marrying in the manner Bowes did, to come into equity and talk of fraud. Therefore the decree must be affirmed with costs ; but let him have all just allowances as to what he paid when in receipt of the profits, and as to the annui- ties, which are declared not to be disturbed by the decree. In the well-known case of Strathmore v. Bowes, the rule upon which Courts of equity act in setting aside a settlement made by a woman of her own property previous to marriage, in violation or fraud of the marital rights of her intended husband, is well laid *down by r^