*

by one Dearne, who paid a deposit in part of his purchase-money, had abstracts delivered to him of the title, and was let into possession. Dearne afterwards sold his interest to Clarke, who again sold to the Misses Beauchamp, one of whom afterwards married the defendant, Laver. The latter purchase took place in 1818, and the Misses Beauchamp were then let into possession of the property, and also of the abstracts originally delivered to Dearne; and they or the defendant Laver had remained in such possession ever since, without paying any further part of the purchase-money or any interest. In 1822, the difficulty referred to in the 8th condition of sale was cleared up; the parties representing the mortgagee having been ascertained.

In 1830, the plaintiff's solicitor wrote to the defendant, Laver, requesting him to return the abstracts in his possession, that he might, if necessary, further elucidate the title. No satisfactory answer being returned to this letter, applications were made to him to complete the purchase. These applications were met by a schedule of objections, which were afterwards, by the admission of the defendant's own counsel, duly answered on the part of the plaintiff. Ultimately, in 1833, the defendant's solicitor referred the plaintiffs' solicitor to the defendant himself. He, however, refused to admit any discussion on the subject, obɛerving that he had no objection to a Chancery suit. In consequence of this refusal, the present bill was, in December, 1833, filed by the trustee and the parties beneficially interested in the testator's estate, against Laver and his wife and her sister, for the specific performance of the contract of 1814. The defendants relied on certain objections which are referred to in the arguments for the plaintiffs.

Mr. Swanston and Mr. Koe, for the plaintiffs:

The defendants admit the contract, the possession, and their liability to pay the balance of the purchase-money, but require a proper conveyance. One objection which they make to the performance of the contract is, that there is not a proper identification of the property comprised in Lot 7, *there being a difference in the quantity of it as stated in various conveyances. The difference consists of two roods. Another objection is, that a mortgage was executed by Robert Woolley, of his share in the property to one Taylor, and that the mortgagee is not a party to this suit. It is too clear, however, for argument, that that is a mere matter of conveyance, and not an objection to a decree for a specific performance.

Then it is alleged, that Dearne and Clarke should be parties to this suit, but it is clear, on the authority of Holden v. Hayn (1) that that is unnecessary. Upon the whole, the objections raised to the performance of this contract are of the most trivial nature, and the Court will decree for the plaintiffs, on the ground of the length of the defendants' possession. The defendants have been in possession, and in receipt of the rents and profits since 1818; and the Court has invariably held that possession unexplained is an acceptance of title: Fleetwood v. Green (2), Burnell v. Brown (3), Margravine of Anspach v. Noel (4). In those cases it was part of the contract, that the defendant should have the possession of the property; and yet a reference as to the title was refused. This case is much stronger in favour of the plaintiff, inasmuch as he was not bound by his contract to let the defendant into the entire possession.

Mr. Simpkinson and Mr. Stuart, for the defendant :

* No one can contend that the possession was an acceptance of title, when, afterwards, abstracts and further abstracts were delivered, and negotiations carried on respecting the title till near the time of filing the bill. Fleetwood v. Green is distinguishable from the present case because there no objections were made to the title. [They also cited Jenkins v. Hiles (5), Burroughs v. Oakley (6), and Bell v. Saunders (7), where] a reference as to title was directed by the LORD CHANCELLOR, although the purchaser had been in possession beyond the time sufficient to bar an ejectment, namely, thirty years.

Mr. Parker, Mr. W. C. L. Keene, and Mr. Collyer appeared for the other defendants.

The question which remains for my decision in these cases (8) is, whether, taking all the evidence into consideration, I ought to refer it to the Master to examine into the plaintiffs' title; or whether I ought to direct him, the Court being satisfied that the title has

(1) 15 R. R. 83 (1 Mer. 47).

(2) See 19 R. R. 191, n. (15 Ves. 594).
(3) 21 R. R. 136 (1 Jac. & W. 168).
(4) 16 R. R. 227 (1 Madd. 310).
(5) 6 R. R. 14 (6 Ves. 646).

(6) 19 R. R. 188 (3 Swanst. 159).
(7) Not reported.

(8) There were other suits against
the purchasers of the other lots.

HALL

2.

LAVER.

[194]

[195]

July 5.

HALL

r.

LAVER.

[ 196 ]

[197]

been accepted, to settle a conveyance of the premises sold to the defendants.

This was a bill for a specific performance of a contract entered into so long ago as 1814; and it appears, and is indeed not disputed, that the defendants entered into possession of the premises shortly after the contract, and have remained in possession ever since. Repeated applications have been made to the parties, without success, either to complete the purchase or to state their objections to the title.

In the first case some objections have been mentioned, but on looking at them they appear to be wholly without foundation; and I think the conduct of the party there has been such as to induce the Court to think that they are not serious objections to the title, but rather excuses from time to time made for not completing a purchase of premises, to the title of which the party had no real objection; and the end of the correspondence, in which the defendant's solicitor refers the plaintiff's solicitor to his client, apparently not choosing himself to offer further objection, confirms me strongly in that conclusion. In that case, after all these frivolous objections had been made, and after the party had refused to have any further explanation of them, he still continues in possession of the premises. I think his so continuing, under such circumstances, amounts to a waiver of his objections to title, and that he must be considered as having accepted the title of the plaintiffs. I purpose, therefore, to direct a reference to the Master to settle the conveyance, and to consider who will be the proper parties to join in it. This will give an opportunity of removing one of defendant's difficulties, if, indeed, there be any foundation for it.

As to both the other cases, I have also come to the same conclusion. There, also, there is no objection to the title; the parties have mentioned none; and I think the fair result of the evidence leads to the conclusion that they have undertaken to complete the contract, and have accepted the title.

In cases like the present, the length of possession, without material objection to the title, is of the greatest weight. It cannot be permitted, I think, to parties, after enjoying the premises for upwards of twenty years, under such circumstances, to put the plaintiff to the further expense and delay, by an inquiry into title in the Master's office.

In all the cases, therefore, I propose to decree as prayed by the plaintiffs that it be referred to the Master to settle the form and

parties to the contract, and that he do calculate interest at 4 per cent. on the purchase-money from the time the defendants respectively entered into possession, and that they do pay the same to the plaintiffs, and also the costs of the suit.

Decree accordingly.

THOMAS FENN, WILLIAM PRATT, AND FOSTER
REYNOLDS v. SIR JAMES GIBSON CRAIG, BART.,
JOHN ANDERSON, THOMAS DUNCAN, EAGLE
HENDERSON, AND OTHERS.

(3 Y. & C. 216-224; S. C. 3 Jur. 22.)

A bill in equity will lie at the suit of a life assurance office to have a policy delivered up to be cancelled on the ground of fraud in effecting the insurance, where the instrument is not void on the face of it; and, in such case, the plaintiffs have a better equity if they bring their bill in the lifetime of the assured than if they wait till after his decease.

THE plaintiffs were trustees, and also directors of the Asylum. Life Assurance Company. The defendants, Craig, Anderson, Duncan, and Henderson, were trustees of the Northern Reversionary Company, and the other defendants were the remaining directors, and also shareholders of the Asylum Life Assurance Company. The bill prayed that a policy of assurance, subscribed by the plaintiffs, and effected with the Asylum Company on the life of the Honourable George Talbot by the defendants, the trustees of the Northern Reversionary Company, might be delivered up to the plaintiffs to be cancelled, the plaintiffs offered to deal with a premium which they had received for such insurance as to the Court might seem just. The bill likewise prayed an injunction to restrain the sale or mortgage of the policy, &c.

The bill alleged, as grounds of equity for setting aside the policy, that it had been obtained from the plaintiffs by means of fraudulent representations as to the habits and conduct of the assured, it having been stated that the assured, though formerly addicted to intemperate living, had become an altered man, and was, at the time of the effecting the policy, of temperate habits; whereas the plaintiffs charged the contrary to be the truth, stating many minute circumstances in support of the general charge.

With respect to the number and character of the parties to the bill, it stated that the plaintiffs are the three trustees of the said Asylum Life Assurance Company, being also three of the directors,

1838.

June 29.

[216]

[217]

FENN

v.

CRAIG.

[218]

[219]

[220]

and not being shareholders nor beneficially interested in any assurance granted by the said Company, and are duly appointed in pursuance, and by virtue of the deed of settlement of the said Company; that the other persons, besides those whose names herein appear, who are shareholders, or claim an interest in the said Northern Reversionary Company, as also the other persons, besides those whose names herein appear, who are shareholders, or claim an interest in the said Asylum Life Assurance Company, are so numerous, that it would be impossible if the plaintiffs could discover who such other persons are, that the plaintiffs could make them parties defendants to this suit. But the plaintiffs show that the names of such other persons, and their places of abode are wholly unknown to them; and that the plaintiffs have not the means of discovering the names and the places of abode of such other. persons. That the defendants, the directors of the said Asylum Life Assurance Company, are interested and concerned in the funds and profits of the said Company, and have the management and direction thereof, and claim an interest in the said policy of

assurance.

To this bill, the defendants, the trustees of the Northern Reversionary Society, demurred [for want of equity and also for want of parties and for misjoinder of parties].

*

Mr. Walker, for the demurrer :

With respect to the demurrer for want of equity, it may be observed, that a bill to set aside a policy of assurance is very unusual; indeed, it is very questionable whether such a bill will lie. Besides, the plaintiffs do not, specifically, offer to repay the premium.

(ALDERSON, B.: I presume they state a participation in the fraud by you.)

They only allege generally that Talbot was our agent.

Mr. G. Richards and Mr. Farren, for the bill:

* *

It has, in 1838, come to our knowledge, that, in 1837, Talbot was of intemperate habits. If we had waited, and taken the premiums, would not that fact be prejudicial to us in an action brought on the policy? [They cited Bromley v. Holland (1), Byne

(1) 6 R. R. 58 (5 Ves. 610; 7 Ves. 3).