M. R. 1871 ELSE v. ELSE. the event of William Richards dying under twenty-one; for there is an express direction to convey to William Richards at twentyone; and, moreover, the true construction is so settled by authority: Kirkpatrick v. Kilpatrick (1); Wheable v. Withers (2). But the conditions of sale preclude the purchaser from raising the objection. We admit that, even under these conditions, the Court would not force an absolutely bad title on a purchaser; but the effect of these conditions is to throw on the purchaser the burden of shewing affirmatively that the prior title is bad, and that, in the face of the authorities cited, we submit that he cannot do. Mr. Joshua Williams, Q.C., for the purchaser: The purchaser ought not to be precluded by the conditions from objecting to the title. This is a sale by the Court, and at such sales purchases are made on the supposition that everything will be fairly disclosed. Now the conditions disclose nothing; and even the abstract furnished did not disclose the objection, for the recital of the will of Hannah Crookes, contained in the deed which is made the root of title, stops short just at the critical point. It will be a great blow to fair dealing if the Court forces a bad title on a purchaser under such circumstances. Then, as to the title itself, it is said that the will of Hannah Crookes contains a direction to convey to William Richards at twenty-one; but the word used is to "assign," which means simply to put him in possession. The legal effect of the will was to vest an estate in William Richards at once, subject only to the interest and power of the trustees during his minority: Boraston's Case (3); then there is a good executory gift over in the event of William Richards dying without leaving children: Doe v. Ewart (4); and the event on which the gift over is to take effect is not confined to death under twenty-one, but extends to the whole period of the life of William Richards: Edwards v. Edwards (5); Cotton v. Cotton (6). The gift over is likely to take effect, and to take effect soon. The Solicitor-General, in reply. (1) 13 Ves. 476. (2) 16 Sim. 505. (3) 3 Rep. 21, a. (4) 7 A. & E. 636. (6) 23 L. J. (Ch.) 439. Jan. 15. LORD ROMILLY, M.R.: This case raises a question of great importance as regards the conduct and practice of the Court of Chancery. It may be that its duties sometimes conflict; and this case seems at first sight to raise a question of that description. But in reality no such conflict can ever arise if the principle on which the Court proceeds be steadily borne in mind, viz., the principle of truth, and the avcidance of all deceit, or even the semblance of a trick. The case arises thus: For It is the duty of the Court of Chancery, on certain occasions, to sell the real property of its suitors. It is, of course, the duty of any person or any Court which takes upon itself that duty to sell the thing entrusted to it in the most advantageous manner. this purpose conveyancers are attached to the Court of Chancery, whose duty it is, amongst other things, to prepare conditions of sale, subject to which the property is offered for sale, and to make them such as will effect its object, and conduce to producing the highest price; but in so doing they must not insert anything which may mislead or deceive an innocent bonâ fide purchaser. That question arises in this case in the event of the Court being of opinion that a good title cannot be shewn. The consequence is that two questions are presented to the Court. The first question is whether the purchaser is bound by the 8th and 9th conditions of sale, under which he bought; and the second question is whether, if he is not so bound, he has got a good title to the property sold to him. I think the first question presented to me is so intimately connected with the second, that it depends so much upon it, that it will be more convenient, in the way I regard this case, to consider, first, the validity of the objection to the title, on the assumption that no condition of sale affects the question, and then to consider whether the conditions of sale preclude the purchaser from taking the objection. The objection to the title depends upon the proper construction to be put on the will of a lady called Mrs. Crookes. [His Lordship then stated the will, and continued :-] The facts are these: Thomas died under twenty-one, without issue. William Richards attained twenty-one, and is now living, but is of an advanced age, and has no children. He was the pre M. R. 1872 ELSE v. ELSE. M. R. 1872 ELSE V. ELSE. decessor in title of the vendor, and claimed to be owner in fee simple of the property, on the ground that the gift over on the contingency of his dying without leaving a child is limited to that event occurring during his infancy, and that, on his attaining twenty-one, he became entitled to an indefeasible estate in fee simple in the property. I regret to say that full consideration of the words of the will, and of all the authorities which relate to the subject, compels me to come to the conclusion that the event of dying without leaving a child is not, in this will, confined to infancy, and that so to confine it would be to impart a meaning, and to add words to the will, neither of which can be found there. I am of opinion that the contingency of dying, having no child, here spoken of, means at any time, whenever that death may occur. I think it useless to go through the authorities on this point which I have done on previous occasions—the more so as my decision on this case will bind no one, and could neither give to the vendor any title not now possessed by him, nor take away from him any right now vested in him. But I am bound to say that, having carefully reconsidered this question, which I have had before me on many previous occasions, I have come to the conclusion that the death of William Richards, without having a child, is not confined to that event occurring during his infancy. Having arrived at that conclusion, the next question arises, viz., whether it is open to the purchaser to take this objection. The conditions are these:-[His Lordship read them.] The indenture of release of the 24th July, 1838, recites the will of Mrs. Crookes, but the recital is inaccurate, for it stops short at the gift over. I am of opinion that these conditions of sale are not such as a Court of Equity can enforce on a purchaser. They amount to a condition, in fact, to the effect that if you find you have not got the property, and cannot keep it, you shall not object. Practically this is a condition saying, that although you imagine you have been sold the fee, still, though you find that you have only bought an estate for the life of a man advanced in years, you must keep the property and pay the price, because you have been foolish enough to buy subject to such conditions of sale. The argument is, that you have shut your eyes, and have got the pro perty at a reduced price (which is probably true); and you therefore have run the risk of being ultimately ejected against the reduction of price. I do not mean to express any opinion as to how the Court would look at this question if it arose between two strangers. A buyer, no doubt, knows that unusual conditions of sale are framed to meet peculiar difficulties; and these are quite fair, even where framed by the Court, if they will still, in the opinion of the Court, leave the purchaser in the complete possession of the thing he has bought, even though he does not get what is called a marketable title; but if not, the Court has no right to enter into such contests, and try to fence with and outwit purchasers, and sell on the chance of the purchaser being able to resist a suit for the recovery of the possession of the lands on a defect not disclosed to him. I am of opinion that such a condition would be bad as a fraudulent misleading condition in any sale, for it professes, or induces the buyer to believe, that the recital accurately represents the will, which it does not. But in a sale under the authority of the Court of Chancery, which, above all things, ought to teach others, and set them the example of straightforward dealing, and telling the truth, and the whole truth, such a condition under the circumstances of this case, is, in my opinion, binding on no one. No good title being shewn, and the purchaser not being bound by the conditions of sale to accept a bad one, he must be discharged from his purchase, and have his costs of the whole proceedings. Solicitors: Mr. J. Elliott Fox; Messrs. Le Riche & Son. M. R. 1872 ELSE v. ELSE. M. R. 1872 Jan. 11. CUTHBERT v. HARMBY. [1868 C. 271.] Practice-Certificate filed while Suit defective-Taking Certificate of File- Where the Chief Clerk's certificate in a suit was filed after the birth of an infant who was a necessary party to the suit, but before the infant had been made a party, the Court, upon the application of all parties, and in order to avoid the expense of a supplemental suit, directed the certificate to be taken off the file. THIS HIS was an administration suit. A decree had been made directing various accounts and inquiries which had been prosecuted nearly to completion, when, on the 6th of November, 1871, an infant was born who became a necessary party to the suit. Subsequently, on the 30th of November, before the infant had been made a party, the Chief Clerk's certificate was filed. Mr. Charles Browne said that it had been decided that under circumstances such as these the ordinary supplemental order could not be made Auster v. Haines (1); but if the certificate were not on the file it might be made: Egremont v. Thompson (2). In order therefore to avoid the expense of a supplemental bill, he now moved on behalf of all parties that the certificate should be taken off the file. THE MASTER OF THE ROLLS, having been informed that no one could be prejudiced by what was proposed to be done, granted the application. Mr. Browne then moved for and obtained the usual supplemental order. Solicitor: Mr. H. Harris. (1) Law Rep. 4 Ch. 445. (2) Law Rep. 4 Ch. 448. |