King v. Phillips. the testator gave all the rest and residue of his real and personal estate, after payment of his debts, legacies, &c., to Ward and Sanford, "and the survivor of them, and the heirs, executors, administrators, and assigns of such survivor," upon similar trusts for his wife and son, provided that his son had paid and satisfied all the incumbrances therein mentioned, (among which was the said agreement for a mortgage for 5501. to William King,) and if he had not, then his trustees were to raise enough to pay such incumbrances, and pay over or transfer what should remain to his said son George. There was also a clause that the trustees should raise enough, out of the general estate, to pay off all incumbrances, without touching the said freehold premises, and some other premises in his will mentioned; and the testator appointed Ward, Sanford, and his wife Catherine, executors and executrix. John Phillips died on the 28th September, 1829. Ward and the widow duly proved the will on the 17th December, 1830, but Sanford never proved nor acted in any manner. Ward died in February, 1832, leaving his co-trustee, Sanford, surviving. Sanford, by his will, dated the 7th August, 1846, devised all his trust and mortgage estates to the defendants, Langton and Bicknell, in the usual way. Langton and Bicknell duly proved their testator's will, and acted in some of the trusts of it. William King died in 1848, leaving the plaintiff his only daughter and executrix. The debt of 550l., with a large arrear of interest thereon, still remained due. The contingency upon which the said John Phillips was to come into possession of the premises agreed to be mortgaged had not yet occurred. The bill prayed that an account might be taken of the debt due to the plaintiff, and for a sale, if necessary, of the premises comprised in the agreement for a mortgage, and for an account of the personal estate, and to have the same duly administered, and that the defendants and all proper parties might be directed to join in any conveyances which might be necessary. The defendants, Langton and Bicknell, put in an answer stating that they were wholly ignorant of John Phillips's will, and of all the circumstances mentioned in the bill, except that their testator, Sanford, had duly made his will, and that they were devisees of the trust and mortgage estates under it. They said they believed the statement in the bill, that Sanford had never proved the will of John Phillips, or acted under it in any manner, to be true. They submitted to the judgment of the court, whether the trust estate under that will ever vested in Sanford, or was now vested in them; and they said "they did not claim, and never had claimed, to have any right, title, or interest whatever in the said hereditaments, and, to the best of their belief, the said Sanford never claimed any such right or interest;" and they, and each of them, disclaimed. By the bill, as at first drawn, there was no personal representative of Ward, the deceased trustee of John Phillips's will. An objection having, on a former occasion, been taken for want of parties, they were added by amendment. T. Smythe, for the defendants, Langton and Bicknell, now contended that they were not necessary parties to the suit, and ought to be Girdlestone v. Lavender. dismissed, with their costs; and quoted 2 Jarm. Dev. 199, and the cases there. But Sir G. TURNER, V. C., thought that the defendants, Langton and Bicknell, had accepted to act in the trusts of Sanford's will; and that Sanford never having in his lifetime disclaimed the trusts or devisees in the will of John Phillips the younger, the estates thereby devised to him vested in him as having survived Ward, and passed to Langton and Bicknell by his will accordingly. The usual decree was made for a sale of the property and for the accounts.1 GIRDLESTONE v. LAVENDER.2 November 25, 1852. Mortgagor and Mortgagee - Foreclosure Suit-Sale under the Equity Improvement Jurisdiction Act, Sect. 48. If a sale, instead of a foreclosure, under this section, be desired, it must be asked at the hearing; if a decree at the hearing be made for a foreclosure, it cannot afterwards, on motion, be converted into a decree for a sale. BRUCE made an application on behalf of a mortgagee in a foreclosure suit, under the 48th section of the Equity Jurisdiction Improvement Act, to have a sale directed, instead of a foreclosure. The decree had been made in April, 1852, for foreclosure, in default of payment of principal and interest. The principal money, with interest, was found by the Master to amount to 3951. The premises, a mill at Wisbeach, were greatly out of repair, and sworn not to be worth 2001. on a sale; that they could not, in their present condition, be let, and would require 270l. to put them into tenantable condition. [Sir G. TURNER, V. C. You have your decree, have you not? How can I alter it now?] The words of the act are general, and do not limit the authority of the court to make the order for a sale at the hearing only. The section authorizes a sale to be directed upon the application of a mortgagee. If it should be thought that the decree cannot, in point of form, be altered on this application, the notice of motion goes also to this, that the cause may, if necessary, be reheard. The mortgagor has not even appeared upon this application, and has entirely given up all interest in the premises. Sir G. TURNER, V. C. I think the meaning of the section is to 1 See acc. Wise v. Wise, 2 Jo. & Lat. 403, 412, and the cases there quoted. Pinfold v. Pinfold. give power to the court to direct a sale if the parties ask it at the hearing. If otherwise, if the section is to be read as you contend, then not only the mortgagee, but the mortgagor also, after a decree for a foreclosure, can come here and ask for a sale, at any time before the time fixed for foreclosure has elapsed. But if you read the whole of the section, I think that the powers and discretion given to the court show that it is supposed they are to be exercised at the hearing. The sale is to be directed, "if the court shall so think fit, without previously determining the priorities, or giving the usual or any time to redeem." These are inquiries which could only properly be directed at the hearing. PINFOLD V. PINFOLD. November 20 and December 1, 1852. Practice -Dismissal of Bill for want of Prosecution. A bill being filed in August, for an injunction to restrain waste, pending an action of ejectment brought to try the title, the ejectment being successful, the injunction submitted to, and the defendant having quietly permitted the plaintiff, after the verdict at law, to sell the estate, and not alleging that he intended to take any steps to disturb the verdict at law, and the defendant being a pauper, and having recently changed his solicitor: Held, altogether sufficient to make out such special circumstances as took the case out of the general rule, on a motion to dismiss for want of prosecution; notice given in November. SIDNEY SMITH moved to dismiss the bill for want of prosecution. The suit had been instituted in August last to restrain waste until the title should be established at law. The plaintiff had brought an action of ejectment successfully, and obtained possession, which was the sole object of the plaintiff in the suit and the action. The defendant was a pauper. Bagshawe, Jun., contrà. The injunction has been granted, and possession recovered at law. The whole object of the suit is at an end, and now a solicitor takes up the suit on behalf of the defendant upon speculation. The course adopted left us to pay all our costs; and the present is an attempt to make us carry on a totally useless litigation. The plaintiff has since sold the property, and the purchaser is in undisputed possession. S. Smith. If the cases are to stand, this motion must be complied with. The time specified for taking the next steps by the plaintiff in conducting the suit having elapsed, the merits of the case cannot be 1 16 Jur. 1081. Pinfold v. Pinfold. gone into. The sole question which can be entertained is, what the parties have done in the conduct of the suit. Sir G. TURNER, V. C. I am not to be tied down by such technical rules as these. If you can show me that, upon the authorities, I cannot deal with this motion, of course I will not; but if I can see my way to deal with it, I most certainly will. There is not a greater abuse of the proceedings in this court than this- that after the whole object of a suit has been obtained, the plaintiff may be compelled by a litigious defendant to go into evidence, and bring the suit to a hearing, at a great expense, which is totally thrown away. S. Smith cited Stagg v. Knowles, 3 Hare, 241, upon the effect of the 16th and 17th amended orders of 1828, which he said, was precisely in point; and also the same effect, the case of The South Staf fordshire Railway Company v. Hall, 16 Jur. 160, s. c. 10 Eng. Rep. 55, before Sir R. T. Kindersley, V. C., as to the costs of a motion to dismiss, showing that the court will not, in such a case, take the merits of the case into consideration. Sir G. TURNER, V. C. The rule of the court (which, as a general rule, of course, is beyond dispute) is so technical, that I shall avail myself of any discretion which I may have to refuse following it. I quite agree with the doctrine laid down by Sir J. Wigram, V. C., in Stagg v. Knowles, and also with the expression of Sir R. T. Kindersley, V. C., as containing the ordinary rule. The plaintiff must pay the costs of such an application, unless there are special circumstances; but in my opinion, the affidavits do disclose special circumstances, and therefore the motion must stand over till the first seal-day after term, to obtain additional evidence as to the accuracy of the plaintiff's representations. December 1. The bill was dismissed, without costs. Nothing was said as to the costs of this motion; each party would, therefore, bear his own costs. Pegg v. Wisden. Specific Performance PEGG V. WISDEN.1 November 16, 1852. Time-Option of purchasing on giving three Notice of Abandonment of Contract-Acceptance A tenant held under an agreement, which gave him the option of purchasing the estate, from his landlord, on giving three months' notice. He accordingly gave notice, which expired on the 14th of August. On the 4th of September, the vendor urged him to complete the purchase, and on the 2d of November, gave him notice, that unless he completed within six weeks he should consider the contract as abandoned. The purchaser went on with the investigation of the title, but did not complete before the six weeks had expired. The vendor then treated the contract as abandoned. In a suit instituted by the purchaser for specific performance :· Held, first, that time was not of the essence of the contract, and that if it had been, it would have been waived by the conduct of the parties. Secondly, that the six weeks limited by the defendant, was not a reasonable time; and specific performance was decreed. Held, also, that the purchaser, having proceeded to examine the deeds with the abstract, must be considered to have accepted the title; but, under the circumstances, he was allowed a week to bring in objections before the Master of the Rolls. New practice as to the consideration of the vendor's title in suits for specific performance of a purchase. THIS was a suit for specific performance of a contract for the sale of a dwelling-house and farm near Brighton, called "New England Farm." The plaintiff, who was the purchaser, had been for some years tenant of the farm in question, and in 1846 entered into an agreement with the defendant, Thomas Wisden, which was reduced into writing in the following letter, which was drawn up by the defendant and signed by the plaintiff: -" Brighton, 21st April, 1846.Mr. Thomas Wisden. Dear Sir, I undertake to hire of you the house and buildings called New England Farm,' at a rental of 1007. per annum, from the 24th June now next ensuing, together with the land, being about five acres, and I agree to pay down to you on that day the sum of 6501.; and it is understood and agreed that I am to have a purchasing clause of the said estate at any time within nine years, by giving you three months' notice, for the sum of 2,500l., in addition to the sum of 6501." The plaintiff paid the sum of 650l. at the time appointed, and remained in possession of the premises, and expended a considerable sum in alterations and improvements. On the 14th May, 1850, the plaintiff's solicitor, by his direction, gave notice to the defendant's solicitor that the plaintiff intended to complete the purchase, and asked to be furnished with an abstract of title. After some little delay, caused by the defendant not being able to find his part of the agreement, and applying to the plaintiff for a copy, the 1 16 Jur. 1105. |