[283] WYNNE v. GRIFFITH. Rolls. Feb. 20, 1826.

[S. C. 3 Bing. 179; 10 Moore, 592; 4 L. J. C. P. 27; 5 B. & C. 923; 8 Dowl. & Ry. 470; 4 L. J. K. B. 130.]

A. and his wife, and B., and C., having a joint power of appointing certain lands, which in default of appointment stood limited (subject to a life interest reserved to C. in part of them) to A. in fee, by lease and release, being a settlement made in contemplation of the marriage of B., granted, bargained, sold, released, conveyed, directed, limited, and appointed the premises to M., to hold the same to him and his heirs, to the old uses, until the marriage, and, after the marriage, as to certain parts of the lands, to the use of A. and his wife during the life of the longest liver, to be in bar of her dower, and, as to other parts, to the use of A. for life, and the use of C. for life respectively; remainder to the use of M. during the lives of A. and his wife, and of C. respectively, in order to preserve contingent uses; remainder to the use of B. and her intended husband during the life of the longest liver of them; remainder to the use of M. to support contingent uses; remainder to the use of M. for a term of five hundred years, upon certain trusts; remainder to the use of the first and other sons of the marriage successively in tail; remainder to the use of the daughters in tail; remainder to the use of A. and his heirs. Held, that the release operated not as an appointment under the power, but as a conveyance of the interest; and, therefore, that the legal fee did not vest in M. Where a legal fee is outstanding, which was vested long since in persons who would now be trustees for the vendor, and the abstract does not shew in whom that legal fee at present is, the objection is a matter of title, and not of conveyance merely.

By indentures of lease and release, the release being dated on the 2d of June, and made between Humphrey Roberts, and Dorothy his wife, Mary Roberts their daughter, and Catharine Roberts widow, of the first part, John Salusbury and John Ellis, of the second part; and Robert Wynne and Owen Holland, of the third part; and by a common recovery, suffered in pursuance thereof, certain lands belonging to Humphrey Roberts, and certain other lands which were the inheritance of Catharine Roberts, together with all other the lands and hereditaments of them Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, or any of them, in the county of Carnarvon, were limited to the use of such persons, and for such estates, and subject to such provisoes, powers, limitations, trusts, conditions, and agreements, as Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, at any time, by their joint deed or writing, duly executed in the presence of two or more credible witnesses, should direct, limit, and appoint; in default of such appointment, to the use of [284] such person or persons, for such estate and estates, &c., as Humphrey Roberts and Dorothy his wife, and Mary Roberts, in case they should all of them survive Catharine Roberts, should at any time after the decease of Catharine Roberts, by their joint deed or writing, executed in the presence of two or more credible witnesses, direct, limit, or appoint; in default of, and until such appointment respectively as aforesaid, as to certain parts of the hereditaments, to the use of Catherine Roberts and her assigns for life, without impeachment of waste; and, as to those lands, from and after her decease, and as to all the residue of the hereditaments, to the use of such person and persons, and for such estate and estates, &c., as the said Humphrey Roberts, by any deed or writing, executed in the presence of two or more credible witnesses, or by his last will and testament in writing, duly executed in the presence of three or more credible witnesses, should direct, limit, and appoint; and in default of, and until such direction, limitation, and appointment, to the use of Humphrey Roberts, his heirs and assigns for ever.

Previous to and in consideration of the marriage of Mary Roberts with Robert Wynne the younger, a settlement was executed by indentures of lease and release, bearing date respectively on the 1st and 2d of October 1751; the former being a lease for a year made by Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, to William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne; the latter being made between Robert Wynne the younger, of the first part, Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts of the second part, and William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne, of the third part. The release, after settling some

lands of the [285] Wynnes to the uses therein mentioned, witnessed, that Humphrey Roberts and Dorothy his wife, Mary Roberts and Catharine Roberts, did grant, bargain, sell, release, and confirm, direct, limit, and appoint unto the said William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne, in their actual possession, being by virtue of the lease for a year, certain lands and hereditaments, which included the lands comprised in the indentures of the 1st and 2d of June 1750, and all other lands and hereditaments in the county of Carnarvon, whereof or wherein Humphrey Roberts was then seized of any estate of inheritance, reversion, remainder, or use, and the reversion and reversions, &c., and all the estate, right, title, interest, use, trust, possession, property, claim, and demand whatsoever of them Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, or any of them, of, in, and to the same, to have and to hold all the said lands and hereditaments unto William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne, their heirs and assigns, to the several uses thereinafter mentioned. These uses were, until the marriage should take place, the same uses and estates to which the hereditaments then stood limited respectively: and, after the solemnization of the intended marriage, the limitations were, as to part of the lands and hereditaments, to the use of Humphrey Roberts and Dorothy his wife, and their assigns, for the life of the longest liver of them, without impeachment of waste during the life of Humphrey Roberts only, and to be the jointure of Dorothy; as to other parts of the lands and hereditaments, to the use of Humphrey Roberts and his assigns, during his life, without impeachment of waste; as to certain other parts of the lands, being the same as were, by the deed of 1750, limited to Catharine Roberts for life, to the use of Catharine Roberts and her assigns for life, without impeachment [286] of waste; and as to the several premises so limited to Humphrey Roberts and Dorothy his wife, and Catharine Roberts, for their lives respectively, from and after the respective determinations of the several life-estates so limited to them, to the use of William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne, and their heirs, during the term of the lives of Humphrey Roberts and Dorothy his wife, and Catharine Roberts, respectively, in trust to preserve the contingent uses and estates thereinafter limited; and as to the premises so limited to the use of Humphrey Roberts and Dorothy his wife, and Catharine Roberts, respectively, for their lives as aforesaid, from and after their several deceases respectively, and also as to the residue of the premises thereinbefore mentioned, to the use of Robert Wynne the younger, and Mary his intended wife, for the life of the longest liver of them, without impeachment of waste; remainder to the use of William Mostyn, John Lloyd, Robert Wynne (of Garthwin), and Pierce Wynne, and their heirs, during the lives of Robert Wynne the younger, and Mary his intended wife, respectively, in trust, to preserve contingent remainders; and from and immediately after the decease of the survivor of Robert Wynne, and Mary his intended wife, to the use of the same trustees, their executors, administrators, and assigns, for 500 years, upon trust, to raise portions for younger children; remainder to the use of the first and other sons of the marriage successively in tail; remainder to the use of the daughters of the marriage in tail; remainder to the use of Humphrey Roberts in fee.

In the release Humphrey Roberts (for himself and his wife), and Mary Roberts, and Catharine Roberts, severally covenanted, that they or one of them were or was seised of the hereditaments, thereby granted and released, for [287] an absolute estate of inheritance, and had full power to grant, bargain, sell, convey, release, and settle the same to the uses therein mentioned; that the premises should remain to these uses, free from incumbrances; and that they, Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, and their heirs, and all persons lawfully claiming any estate or interest in the premises from or under them, would at the request of the trustees, do all things necessary for the better conveying, settling, and confirming to the uses therein before expressed the premises thereinbefore mentioned to be settled, released, or assured.

The execution of the release by Robert Wynne the elder was attested by two witnesses; the execution of it by Robert Wynne the younger, and by Humphrey Roberts, Dorothy Roberts, Mary Roberts, and Catharine Roberts, was attested by three witnesses.

The marriage was duly solemnized. Robert Watkin Wynne, who was the only son born of it, died without having suffered a recovery, and leaving an infant son,

John Wynne, in whom the estate tail vested. Catharine Roberts, Humphrey Roberts, and Dorothy Roberts had been dead long before; and in 1814, Mary Wynne (formerly Roberts) died. Shortly afterwards, John Wynne suffered a common recovery to the use of himself in fee; but no conveyance had been executed to him by the trustees of the settlement of 1751, or by those in whom any estate, which the trustees took under it, had become vested.

John Wynne, having contracted to sell part of the estate, filed a bill for specific performance against Griffith, the purchaser; and, upon the usual reference, the Master reported that a good title could not be made. [288] The objection on which the Defendant had relied, and on which the Master had proceeded, was,-that, inasmuch as, by the indentures of the 1st and 2d of June 1750, and the common recovery suffered in pursuance thereof, the premises were limited to such uses as Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts should jointly appoint; and as, by the indentures of the 1st and 2d of October 1751, the estates were appointed by Humphrey Roberts and Dorothy his wife, Mary Roberts, and Catharine Roberts, unto William Mostyn, John Lloyd, Robert Wynne, and Pierce Wynne, and their heirs, for the purposes therein mentioned; and as no conveyance had been obtained from these trustees, or any person claiming under them; the legal estate in fee simple was still outstanding, and the vendor had not shewn in whom that legal estate was vested, but had declined to procure a re-conveyance of the same.

The Plaintiff excepted to the report.

May 4, 1825. Mr. Sugden and Mr. Girdlestone, jun., for the exception.

Mr. Shadwell, Mr. Simpkinson, and Mr. Coote, contra. Mr. Sugden urged first, that the objection, on which the Defendant relied, even if valid in principle, was an objection, not to the title, but merely to the conveyance. If the legal estate is outstanding in the representatives of these trustees, still it is in a person who is a naked trustee for Mr. Wynne, and who must be presumed to be ready to execute his trust by conveying as Wynne shall direct. Had there been an adverse claimant, then, indeed, it would have been necessary for us to have shewn, that the person, in whom the legal estate was, had agreed [289] to concur in the conveyance. But here there is no adverse claimant. Wynne has, in every view of the matter, the whole of the equitable fee, and the uncontested right to direct the person who has the legal fee (if it is not in Wynne himself), to convey to the purchaser. The abstract. therefore, shews a good title; and when the conveyance comes to be settled, it will be time enough to discuss the objection on which the Master has proceeded.

To this argument it was replied, that all that now appeared (supposing the objection to be valid) was, that the legal estate had been outstanding for more than sixty years; and there was nothing to shew, either in whom it was vested, or whether he who had it was ready to convey and capable of conveying. It might be true, where an outstanding legal estate was in a person who was ready to convey, the fact of the existence of such an outstanding estate might be regarded rather as a matter of conveyance than as an objection to the title of the cestui que trust. But here the abstract did not shew in what particular person the legal estate was vested; and it was impossible to foresee, how many difficulties there might be in obtaining a re-conveyance of it.

The Master of the Rolls [Lord Gifford]. Supposing the Master to be right in his opinion, that the legal estate is outstanding, the abstract does not shew where the legal estate is. How then can it be alleged, that it shews that the Plaintiff is able to make a good title? I must hold the question, raised on this exception, to be a matter of title, and not of conveyance.

[290] The question was next argued, whether, under the deeds of 1751, the legal fee was vested in Mostyn, Lloyd, and the two Wynnes. This depended on the question, whether the release of the 2d of October 1751, operated as an appointment under the power, or as a conveyance of the interest. If it operated as an appointment of the use to Mostyn, Lloyd, and the two Wynnes, the legal fee was in them. and a good title had not been made. If, on the other hand, it operated as a conveyance, Mostyn, Lloyd, and the two Wynnes, were merely releasees to uses, and Wynne could give the purchaser the legal as well as the equitable fee.

In support of the exception it was said, that the form of the instrument, the lease for a year, the phraseology and covenants of the release, all indicated strongly

an intention to convey rather than to appoint. Then, the uses declared were incompatible with the idea that the parties meant to exercise their power of appointment, and to vest the legal fee in the trustees. The first use declared was, that, until the marriage, the releasees were to hold the premises upon the old uses. How could this purpose be effected, if the power had been exercised? If the legal fee was intended to vest in Mostyn, Lloyd, and the two Wynnes, what became of the term limited to them as trustees? What purpose was served by the estates given to them to support contingent remainders? It was unquestionably the purpose of these parties to convey; and they did not mean to vest the fee in the releasees. They had used, indeed, inaccurate language. But, where an instrument may operate in either of two ways, the Court will construe it in that which is conformable to the intention of the parties. Cox v. Chamberlain (4 Ves. 630).

[291] On the other side, it was argued, that the question as to the intention of the parties was not-Did they or did they not mean to vest the fee in the trustees ? -but,-Did they or did they not, when they executed the deed, mean to exercise their power? If the instrument shewed that they meant to execute their power, the Court must construe the instrument accordingly and it was useless to consider what their supposed intention might be with respect to the legal consequences of their primary intention, and of that which they did in pursuance of such intention. Now here there were particularly two circumstances, which shewed, that, when the deeds were executed, the intention was to exercise the power :-First, Mary Roberts was a party appointing. She had no interest in the premises; if it was a conveyance, her concurrence was nugatory; but she was a necessary party to the exercise of the joint power. Why, then, was she made a party to the deeds, unless because the intention was to execute the power? Secondly, if the instrument had been to operate as a conveyance, the lands, of which Humphrey Roberts was seised in fee under the instrument of 1750, could not have been conveyed to the uses of the settlement exonerated from his wife's dower, unless a fine had been levied. Roach v. Wadham (6 East, 289), Boughton v. Sandilands (3 Taun. 342).

The Master of the Rolls [Lord Gifford] having expressed his opinion, that the question was one of great nicety, Mr. Sugden intimated his willingness to take a case to a Court of law. Mr. Shadwell, for the purchaser, having assented to this proposal, a case was directed to the Common Pleas. The question proposed to that Court was,-whether, under the indentures of the 1st and 2d of June 1750, and the common recovery suffered in pur-[292]-suance thereof, and under the indentures. of the 1st and 2d of October 1751, the legal fee of such of the estates and premises comprised in the first-mentioned indentures as were settled and assured by the last-mentioned indentures, became vested in Mostyn, Lloyd, and the two Wynnes. The Judges of the Common Pleas certified, that the legal fee did not vest in Mostyn, Lloyd, and the two Wynnes.

The cause coming back to be heard before the Master of the Rolls, Mr. Shadwell applied that the case might be sent to the King's Bench, in order to have the opinion of the Judges of that Court. This was done.

The Judges of the King's Bench also certified, that the legal fee did not vest in Mostyn, Lloyd, and the two Wynnes.

Feb. 20. Accordingly, there was a decree for specific performance.

[293] WYNNE v. CALLANDER. Rolls. Feb. 21, July 7, 1826.

Bills of exchange, made in France, on French stamps, and substituted in France for English bills of exchange, which were originally given for a gambling debt, ordered to be delivered up. At the hearing, the objection, that the bill is multifarious, comes too late to prevent the Court from making a decree. Decree, without costs, for the delivery of bills given for a gambling transaction. In October 1819, the Plaintiff Wynne, Colonel Charretie, and Major Fleming, dined at the house of General Callander. After dinner they played at whist, and Wynne lost upwards of £6000, in sums, as the bill alleged, "not very irregularly distributed among the three other gentlemen. In payment of the debt thus contracted, Wynne accepted bills of exchange, some of which he delivered to

Callander, some to Charretie, and some to Fleming. Several of these were not paid when they became due; and other bills were substituted in their stead.

In 1822, Wynne went to reside in France; and, while there, he, in 1823, accepted bills of exchange on French stamps, to the amount of the principal and interest due on the unpaid bills, and gave them to Callander, Charretie, and Fleming, in lieu of the negotiable securities which they had held before.

In April 1824, Wynne filed his bill against Callander, Charretie, and Fleming, to have such of the bills as were in their possession or power delivered up. Colonel Charretie demurred to the bill, on the ground that it was multifarious, and his demurrer was allowed.

General Callander by his answer admitted, that, on the occasion mentioned in the pleadings, he won £2000 from the Plaintiff, and that, in discharge of the deb: so contracted, he received certain bills of exchange, for some of which the bills now questioned were afterwards substituted. He stated, however, that the gambling was at [294] the proposal of the Plaintiff himself, who was in the habit of playing for large sums; and he insisted, that, as the acceptance of the French bills by Wynne was a voluntary act, done in a foreign country, for the purpose of giving a security according to the law of that country, the Court had no jurisdiction to order them to be delivered up. Even if the Plaintiff had any equity against him, it was an equity, he contended, totally distinct from any which existed against Fleming and Charretie. By the union of these distinct equities in one record, he, Callander, had been vexatiously called upon to answer various charges with which he had no concern: and he therefore claimed the same benefit of that objection, as if he had demurred to the bill for multifariousness.

Fleming's answer was to nearly the same effect. The amount of his winnings was about £2050.

There was no evidence in the cause.

Mr. Sugden and Mr. Girdlestone, jun., for the Plaintiff. The French bills must stand on the same footing as the bills for which they were given in exchange the latter bills, being accepted for a gambling debt, were void ab initio; the French bills, therefore, are also void; and the Court must order them to be delivered up. (9 Anne, c. 14, s. 1, and 18 Geo. 2, c. 34, s. 3.)

The multifariousness of the bill, which is insisted on by the answers, is no defence, unless advantage is taken of it by way of demurrer. Ward v. Cooke (5 Mad. 122).

Mr. Heald for the Defendant Fleming. The securities were executed in a foreign country. [295] They are in every respect foreign, and may be made the subject of a foreign action. Their validity must depend, or, at least, may depend on the law of the country in which the transaction took place; that is, of the country in which the bills were made and delivered and this Court, if it at all entertain jurisdiction over such a matter, will at least refuse to act, until it has ascertained by an inquiry what the law of France is on the point here raised.

:

Besides, this bill is multifarious; and the Court will not make a decree against two Defendants, who, according to its acknowledged doctrines, ought not to have been conjoined. Ward v. Cooke cannot be relied on as an authority; for the circumstances of that case are not stated in the report; and it may make a difference, whether the objection is taken merely ore tenus at the bar, or insisted upon in the answer. By insisting in our answers on the objection, we give the Plaintiff notice of the faulty constitution of his record; and if he proceeds after such a warning, it is at his peril. At all events, the rule, alleged to have been laid down in Ward v. Cooke, cannot be general. For if a plaintiff were to mix up in the same bill four or five different accounts against four or five different defendants, who, by reason of having obtained an order for time, were precluded from demurring, is it to be conceived, that the Court would lend its aid to so mischievous a proceeding as would result from comprehending all these defendants in one decree, and sending them to the Master's office, involved in a variety of long accounts, with each of which all the Defendants, save one, had not a particle of concern.

Mr. Sugden in reply. In this case, at least, no inconvenience can arise from conjoining these Defendants. No accounts are wanted: [296] the decree will be only for the delivery of certain bills; and neither expence nor embarrassment will be occasioned to one of the Defendants by the order being made against his co-defendant as well as against himself.