EDWARDS

v.

BURT,

[ *63]

[*64]

have been obtained by reason of the inability of the plaintiffs to furnish an abstract. This circumstance is alluded to by Mrs. Edwards in her *first letter to the defendant, but no one afterwards seems to have paid any regard to it. In truth, persons selling reversionary interests seldom can be in a position to produce title deeds or to furnish a perfect abstract. But the testator, under whose will the vendors derived their title to the property sold, had been dead above twenty years; possession had, no doubt, gone since his death in conformity with the devises contained in the will; the will seems to be that of a person who had been an established resident at Reigate, and who had acquired considerable property in and near that place, and who himself occupied the house now let to Mrs. Wood. In all probability, therefore, the inability of the plaintiffs to furnish an abstract was not considered by any one as a circumstance really calculated to influence the saleable value.

It was then urged upon us, that if we should set aside the present transactions on the ground of undervalue, we should in effect be deciding that no sale of a reversion can be sustained unless it be made by public auction. This we certainly do not mean to decide. But here not only the sale was not a sale by auction, but no effectual steps were taken to acquire a knowledge of the market value before the bargains were completed. As to the first transaction, no steps whatever were taken. As to the second, nothing was done except to obtain the opinion of an actuary, and such an opinion is evidently very unsatisfactory with reference to the local circumstances likely to influence market value. Indeed on such a subject an actuary is by no means the best authority to refer to. If, previously to the sale of a reversionary interest, the vendor and purchaser concur in ascertaining from persons of competent skill and having knowledge of the property, and of all the circumstances likely to influence value, a well-considered estimate of *what the property would be likely to fetch on a sale and act on that opinion, we are far from meaning to decide that such a transaction could be afterwards impeached, merely because other surveyors should come to a conclusion different from that on which the parties had acted. The Court would probably in such a case be much inclined as a matter of fact to believe the original and not the subsequent estimate to be correct; but nothing of the sort occurred here, and we advert to the point only to explain that we do not concur in the suggestion that no sale of a reversionary interest otherwise than by auction can be sustained.

We think that neither of the sales, impeached by the present bill, can be supported; not because they were sales by private contract, but because-it being incumbent on the defendant to show that the price given by him was the fair market value-he has failed in doing so.

We thus come to a result, not conformable to that at which the MASTER OF THE ROLLS arrived, and this can hardly be matter of surprise on a doubtful question of fact, such as that of market value, which different minds may naturally view in very different lights.

The consequence of the conclusion at which we have thus arrived is, that the two sales must be set aside; and it must be declared, that the deeds ought to stand only as a security to the defendant for the sums actually advanced by him, including, according to what was consented to by Mr. Anderson at the hearing, the money advanced for premiums on the policies of insurance, with interest at the rate of 51. per cent., that being the rate generally given in cases like the present.

The defendant is entitled to his costs of suit, except the costs of such of the depositions as relate to the state and value of the property. Those costs have been incurred in an endeavour to prove what the defendant has failed to make out, and no costs. should be given on either side on this part of the case; but the rest of the costs was occasioned by the unfounded charges in the bill, imputing to the defendant undue influence and pressure on the plaintiffs.

Subject to the foregoing declaration, the plaintiffs must have the decree, usual in such cases, treating the defendant as liable to account for the rents, on the footing of his being a mortgagee in possession; and on payment to the defendant of the balance found due to him he must reconvey the property comprised in both deeds, and assign the policies to the plaintiffs.

If both parties prefer to have a sale, that course may be pursued, but that can only be done by arrangement.

MAINWARING'S CASE.

(2 D. M. & G. 66-72.)

A provisional committee-man of a provisionally registered Railway Company on the 9th of October, 1845, wrote to the secretary in answer to an inquiry made by the latter, as follows: "I should wish to have 100 shares reserved for me." Nothing further took place till the 21st of November, when 2

R.R.-VOL. XCV.

EDWARDS

v.

BURT.

[65]

1852. March 25.

MAINWARING'S

CASE.

the secretary wrote to the committee-man as follows: "The committee of management are of opinion that the payment of the deposit should be no longer delayed; they therefore request that you will be so good as to pay the deposit on the 100 shares accepted by you." On the 27th, the committee-man replied thus: Inform me whether a sufficient amount of deposits has been paid up to enable the Company to go to Parliament this session, and if all the provisional committee have paid their deposits. Should that be the case, I shall not hesitate to pay also, that is upon being clearly satisfied on these points": Held, that this was a conditional acceptance only, and the condition not having been performed, that the committee-man was not a contributory.

[This case does not appear to require any further report, since the provisional registration of Companies has long since become obsolete by the repeal of the old Joint Stock Companies Acts.]

1852. March 26.

FRANCIS v. FRANCIS.

(2 D. M. & G. 73-78.)

In the administration of a trust estate it became necessary to realize certain mortgages for securing part of the trust funds advanced on mortgage by the executors, whose solicitors claimed a lien on the deeds for costs due from the executors. There were ample funds in Court to cover the solicitors' claim, upon which funds the cestuis que trust were willing to give them a substituted corresponding lien : Held, that the Court had jurisdiction to order the solicitors to deliver up the deeds.

[Further proceedings relating to the same matter are reported in 5 D. M. & G. 108, and that report contains a full statement of the circumstances relating to the solicitors' claim, which was ultimately dismissed, and also states the order made on the application here reported, which is sufficiently explained in that further report.]

1852. March 24. April 2.

RICHARDSON . EYTON.

(2 D. M. & G. 79–91; S. C. 20 L. T. (O. S.) 194.)

[This was a dispute as to the validity, construction, and mode of enforcing a compromise of a suit in equity. The question as to the validity turned upon an alleged misapprehension arising out of a clerical mistake in the bill which the COURT did not consider to have occasioned any real misapprehension. The question as to the construction was of no general interest. The question as to the mode of enforcing a compromise is now governed by s. 24 (5) of the Judicature Act, 1873.]

EX PARTE JAMES EVERS SWINDELL.

1852.

April 30.

KNIGHT
BRUCE,

Lord

(2 D. M. & G. 91–93; S. C. 21 L. J. Ch. 748.) Where a committee of the estate of a lunatic permitted the solicitor whom he employed in the lunacy to become tenant of a mansion-house, forming part of the lunatic's estate, and allowed the rent to be in arrear CRANWORTH, for four years, none having, in fact, been paid, except by means of a set-off L.JJ. of a smaller sum, being the amount of the solicitor's bill of costs accruing from time to time: Held, that the committee was personally liable to make good the deficiency.

[Two petitions were presented in the matter of a lunatic, the first of which] was that of the legal personal representatives of the lunatic, praying that the Master's report might not be confirmed, finding that no sum in respect of rent of a house, forming part of the lunatic's personal estate, had been lost to the estate of the lunatic by the wilful neglect or default of Edward Ordish, the late committee, since deceased. The deceased committee had been appointed in 1830 in the place of a former committee, and had continued to employ the same solicitor whom the former had employed, and who had shortly before been bankrupt but had obtained his certificate, and continued to hold several offices which he had previously held. Shortly after the committee's appointment a mansion-house and hereditaments, part of the lunatic's estate, became untenanted, and from the situation of the house, and the circumstance of its being a large mansion, there was difficulty in finding a tenant for it. In October, 1839, the solicitor proposed to the committee to take the house at 132l. a year, being the rent paid by the previous tenant, and he entered into possession accordingly, but paid no rent, being employed by the committee in various suits relating to the lunatic's estate. In 1842 the committee discharged the solicitor, and on February 11 in that year obtained an order for taxation of his bill of costs, which amounted to 1,050l. 168. On taxation it was reduced to 604l. 14s., but this reduction was stated to have arisen from the loss of books and vouchers of the solicitor in a fire at the Town Hall at Derby, where his offices were. The only portion of the amount of the costs which had not been already allowed was 981., which together with 100l. and 791. paid on account were all that could be set off against the arrears of rent. The committee had shortly afterwards himself become lunatic and had since died, and the reference upon which the report was made was directed upon an application for delivery up of the bond entered into by the committee,

[19]

[ *92 ]

Ex parte SWINDELL.

[ *93 ]

The second petition was that of the personal representative of the committee for a confirmation of the report.

Mr. Rolt and Mr. J. V. Prior supported the former petition.

Mr. Swanston and Mr. Smythe the latter.

THE LORD JUSTICE LORD CRANWORTH:

This is a very distressing case. This committee chose to employ as his solicitor (as he had a right to do) a gentleman who had been but a few months before a bankrupt, and had *re-established himself. One of the first acts done after that was, that the committee let to the solicitor a house formerly (1) part of the lunatic's estate, at a rent of 1321. per annum. This was a very objectionable proceeding. The solicitor continued tenant for four years, and never paid a sixpence of rent. Having been the solicitor to the committee up to nearly the fourth year of his tenancy, or rather to the end of the third year, he was about the third year dismissed, but continued tenant for a year afterwards. The question is, whether there having been no rent received, except certain sums on account of the rent, we can do otherwise than conclude that the rent was lost through the default of the committee in not enforcing payment. The only excuse suggested is, that there were accruing costs due from time to time, constituting a sort of set-off against the payment of rent, and that on this account the committee abstained from proceeding against the tenant. There appear however to be no costs due, except to the amount of 981., which the lunatic's representatives are willing to allow to be deducted. With this exception, and that of two sums of 100l. and 791. paid on account, the whole rent is lost. No other conclusion can be arrived at than that this loss has arisen because the committee was wanting in that vigilance which the Court is entitled to expect, and is bound to require from one holding that fiduciary situation. I am extremely grieved that such is the result at which I am compelled to arrive; but, considering how important it is to watch the conduct of persons undertaking the care of those who, by the visitation of God, are incapable of taking care of themselves, there is no other course to be taken than to charge the estate of the committee with the whole amount of 3951., giving credit for 1791., adding another year's rent, and deducting from it 981.

The Lord Justice KNIGHT BRUCE Concurred.

(1) Sie, qu. a misprint in the original report for " forming."