A decree was made accordingly; and under it the Master found that a good title could be made, and was first shewn on the 10th of May, 1850. To this report the defendants took several exceptions. The sixth exception was:-For that the plaintiff, Henry Hawkes, claiming to be only tenant for life of the greater part of the property, is not empowered to sell and convey, and the Company is not empowered to purchase and take, such part of the property as is not shewn upon the deposited plan of the railway, nor described in the books of reference to such plan; the special Act and the Lands Clauses Consolidation Act not being applicable to land which is not so shewn and described; and, the whole property being comprised in one contract, the same cannot therefore be performed. The seventh exception was:-For that the powers of the Company to purchase and take land are not and have never been in force, inasmuch as the capital proposed to be raised by the Wisbeach and Spalding special Act has not been subscribed for. The cause now came on upon the exceptions, and upon further directions. Mr. Russell, Mr. Malins, and Mr. Grove, in support of the exceptions. The enabling clauses of the Lands Clauses Consolidation Act, 1845, do not apply; for they only authorise contracts to be entered into by a tenant for life after the enabling clauses have been brought into operation by a special Act; whereas here the contract was entered into before the tenant for life had any power to bind the inheritance: Edwards v. Grand Junction Conal Company (a). (a) 1 My. & Cr. 650. 1850. HAWKES v. EASTERN COUNTIES RAILWAY CO. 1851. March 14th. 1851. HAWKES V. EASTERN COUNTIES RAILWAY Co. Moreover, the Lands Clauses Consolidation Act requires the land to be valued by a competent surveyor as a condition precedent to a contract by a tenant for life. This has never been done. [The Vice-Chancellor.-May not the omission, if it be an omission, be supplied, if the Company desire it, by having a valuation made under the section in question?] We submit that it is too late. Another fatal objection is, that the plaintiff is able only to convey to the Company the life estate; and it would be monstrous to compel the Company to pay 13,000l. for what is only worth 4000l. [The Vice-Chancellor.-May not the purchasemoney be paid into Court, so that the persons entitled in remainder would not be allowed to have it paid out without confirming the purchase?] As to the greater portion of the property, it is altogether without the scope of the provisions of the Act, and therefore there would be no authority for the payment into Court of the total price, and there are no means of apportioning it. The corporation has no power to complete the contract. [The Vice-Chancellor. -Can it not pay the money?] Not without committing a breach of trust. Mr. Wigram and Mr. Follett supported the report. Mr. Russell in reply. The VICE-CHANCELLOR: For the purpose of this contention I must assume that the testator was seised, by a good title. The body which contracted with the tenant for life under the will, knew of the will, and contracted with express notice that he was tenant for life, under it, of part at least of the property contracted for. It is by no means new in this Court, to hold that a purchaser, with know ledge of a defect in the title, may so act as to waive the objection. The contract contains these passages:-[The Vice-Chancellor here read the part of the agreement relating to the title under the will.] The purchasers therefore contracted to do a certain thing. They failed or omitted to perform it, and now say, that, by reason of this failure, the vendor has no title. The objection is one of pure dishonesty, and I overrule it accordingly. 1851. HAWKES v. EASTERN COUNTIES RAILWAY Co. This decision was affirmed by the Lord Chancellor (Lord St. Leonard's) on appeal, on the 15th of November, 1852 (a). (a) See Webb v. Direct London and Portsmouth Railway Company, 1 De G., Mac., & G. 521. WACE v. BICKERTON. UPON the treaty for a marriage between Mr. Stephen Price and Miss Mary Ann Wace, Mr. Thomas Price, the 1850. March 14th. A father, in contemplation of the marriage of his son, pro posed, in writing, to settle an estate in a specified parish, "worth 2007. a year," free from incumbrances, on himself, for life, with successive remainders to his son and his intended wife, and the children, charged with 507. a year to his own widow, for life. By a settlement, not referring to the proposal, the father conveyed an estate, held in fee, worth 577. a year, and an estate of which he was tenant for life, with limitation to his son in tail, of the yearly value of 1907., both in the specified parish, to the proposed uses, and absolutely covenanted that the conveyed hereditaments were of the annual value of 2004., and that he was absolutely seised in fee of them. The marriage took effect, and both the son and his wife died, leaving an infant daughter; the son had married a second time, and left a son, who became tenant in tail of the hereditaments worth 1907. a year. In a suit by the infant daughter and the trustee of her settlement, against the representatives of her grandfather, the settlor, for damages for the breach of his covenant:-Held, that the proposals could not be looked to as defining the value of the property to be settled; and that the plaintiffs were entitled to damages to the full extent of the value of the settled land, though that would create a total income under the settlement of 2471. instead of only 2007. Semble, that, where an infant, joining in a suit with other plaintiffs, asks by her bill less than she is entitled to, the Court will, at the hearing, give liberty to file a new bill, and even order one to be filed. 1850. ᎳᎪᏟᎬ v. BICKERTON. father of Mr. Stephen Price, made a proposal in writing, dated the 25th of June, 1835, in the following terms: 'Proposal for settlement of Mr. Stephen Price and M. A. Wace. "Mr. Thomas Price proposes to settle an estate, in or near Kinnerley parish, worth 2001. a year, free from incumbrances, to himself for life, then to Stephen Price, chargeable with 50l. a-year in favour of Jane, wife of Thomas Price, for her life, then to M. A. Wace for life, then to all the children in such manner as the father and mother shall appoint, and in default to all the children equally, and if no child to Stephen Price." By an indenture, dated on the 30th of June, 1835, between Mr. Thomas Price of the first part, Mr. Richard Wace of the second part, Stephen Price of the third part, Miss Wace, the daughter of Mr. Wace, of the fourth part, and George Dicken and Henry Thomas Wace of the fifth part, being a settlement made in contemplation of, and shortly before, a marriage celebrated between Stephen Price and Mary Ann Wace, it was recited that a marriage was intended to be had between the said Stephen Price and M. A. Wace; and, in consideration thereof, it had been agreed that the said Thomas Price should make the settlement thereinafter contained; and it was witnessed, that, in consideration of the marriage [and for a nominal consideration] the said Thomas Price (with the privity and consent of the said Stephen Price, Mary Ann Wace, and Richard Wace), did grant, release, direct, limit, and appoint all the messuages and hereditaments of him the said Thomas Price, in possession, reversion, remainder, expectancy, or otherwise howsoever, in or near the parish of Kinnerley, unto the said G. Dicken and H. T Wace, their heirs and assigns; to the use, after the marriage, of Thomas Price for life, with remainder to the use that Jane Price, his wife, should receive thereout 50%. a-year; and, subject thereto, to the use of Stephen Price for life; with remainder to the use of Miss Wace for life; with remainders to the use of their child or children in fee; with a direction that if there should be only one child the estate should go to such only child. And Mr. Thomas Price covenanted with the trustees of the settlement in the following terms:-" And the said Thomas Price does hereby, for himself, his heirs, executors, and administrators, covenant with the said G. Dicken and H. T. Wace, their heirs, executors, administrators, and assigns, and also with the said Stephen Price, his executors and administrators, that the said hereditaments are now worth the annual sum of 2001.; and that the said Thomas Price is entitled thereto for an estate of inheritance in fee simple in possession, free from all payments and incumbrances whatsoever (except the said annuity of 50l.); and that he the said Thomas Price and his heirs, and all other persons whomsoever, shall and will, whenever requested by the said trustees or any of them, execute any other deed or deeds that may be required for more effectually conveying the said hereditaments to the said G. Dicken and H. T. Wace, their heirs and assigns, upon and for the trusts and purposes hereinbefore mentioned." And in the same indenture was contained a general warranty of title by the said Thomas Price. Mrs. M. A. Price died in 1836, leaving her husband, Mr. Stephen Price, and Mary Ann Price, the only child of the marriage, surviving. Mr. Stephen Price subsequently married again, and died in 1846, leaving a son, the only child of that marriage. Mr. Thomas Price died in 1842, having made a will, which was proved by Mr. Bickerton and Mr. Onions, the executors thereof. Under these circumstances, Mr. Wace, as the surviving trustee of the marriage settlement of 1835, and Mary Ann Price, the sole infant child of that marriage, by her 1850. WACE v. BICKERTON. |