for a valuable consideration; and that on the assignee giving notice of the assignment to the debtor, the debtor will in this event be bound to pay only to the assignee. A debt may even be in some cases the subject of a contract which the Common Law recognises, as when there is an exchange of debts and liabilities. The law of this Court attaches a trust on the subject of the contract for the party so purchasing and giving notice, and the consequence is that the debt is not to be paid to the original creditor, but to the person whom he has invested with the power of receiving it, and the debtor becomes a trustee for, or liable to pay to the person armed with the power of enforcing the debt, in the name of the original creditor. Even a Court of Law will prevent any tampering or unfair dealing with such a transaction, and will prevent the creditor who assigned from releasing the debt to the prejudice of the assignee. Still, if in these cases of assignment of policies, the deed of assignment do not contain a clear power to give a receipt and to discharge the debtor from all liability, the original creditor is so far recognised that the Company is entitled to require a discharge from the person originally effecting the insurance, or his personal representative. In this case, however, we have the assignee of the policy of insurance, and we have also the personal representative of the assignee, and between these there is a complete title. No demand on behalf of any other person has ever been made upon the Company; it is not suggested that there is any collusion or any claim set up by any other party, or that the respondent Ryan is not a perfectly fit person to have the control of this sum of money. It comes then to this simple question; is it the law that, on the assignment of the policy to A B, in trust to call in the amount and employ it upon trust for certain specified persons, the Company is prohibited from paying the amount to him if he be not armed with receipts from those persons, or with some special authority dispensing with such receipts? Such a doctrine has no doubt been established with respect to the sale or mortgage of realty; but in the case of realty there is no primary duty cast upon the purchaser or mortgagee to pay the amount to any particular individual: and thus there is this dif 1854. Chancery. FORD บ. RYAN. Judgment. 1854. Chancery, FORD V. RYAN. Judgment. ference between the purchaser of realty from trustees and the payment of a debt to trustees, that in the one case the purchaser is a mere voluntary intervenient-it is a matter of his own free will whether he will or not purchase, while in the other, the debtor is bound and compellable to pay the person entitled to receive the amount. It would be a very strong proposition to say that if a trustee assignee were paid, the debtor could be sued anew by the cestui que trusts. I feel very certain that he never would be held liable. Satis Pritchard v. Langher (a), on which the petitioner so much relied, is distinguishable, on the ground that it was a case of plain fraud. The bond was vested in a trustee for the plaintiff's intestate, and having been put in suit by the trustee, the defendant confessed a judgment, and paid the amount to the trustee. faction was acknowledged on the judgment by an attorney who had not commenced the suit, and had not been employed by the intestate. It appeared the defendant had offered to pay the amount on getting a release, which would have included other claims. The report says that the Court determined that this was fraud; not meaning that payment to a trustee is in itself, in all circumstances, fraudulent, but that, in that case, it was so. The language used might certainly be taken to import that payment to a trustee must be treated as a fraud; but the true meaning is, that payment to a trustee, under such circumstances, will be so treated. This is manifest, from the Court relying on the extraneous fact of the change of attorney as evidence of fraud in the case: there is not enough in that decision; and I think there is nothing in principle to warrant me in saying that the doctrine of constructive fraud should be carried to the extent for which the petitioners here contend; and it has even been much doubted whether the cases have not gone too far in thus treating purchasers of real estate. I have been unable to discover any authority to support the proposition for which the petitioners contend; but I do find the tendency of the authorities to be the other way. In the case of Glyn v. Locke (b), for example, where the trusts were complicated, Lord (a) 2 Vern. 193. (b) 3 Dru. & War. 11; S. C. 5 Ir. Eq. Rep. 61. St. Leonards said:-" "The nature of the trusts of the deed is sufficient to absolve the Company from the necessity of seeing to the application of the money. Were I to decide this point in favour of the Company, and hold this to be a proper case for a bill of interpleader, I could not lay down a rule more mischievous in its tendency to Companies in general. It would amount to a decision that in all cases a party paying money to a trustee is bound to see to its application, and consequently to the execution of the trusts of the deeds, however complicated. But no such rule exists." Sir Edward Sugden thus laid it down that no such rule existed as that for which the petitioners contend; and though in Glyn v. Locke the decision may have been to some extent founded on the complicated nature of the trusts in the particular case, yet he proceeds :-" I hold that the intervention of the person who has the legal right, and who was bound to see to the distribution of the fund according to the trusts of the deeds, and who was introduced for that express purpose, was sufficient to protect the Company. I am clearly of opinion. that the Company was not bound to see to the application of this money, and therefore had no right to call for the execution of the trusts of the deed." In Fernie v. Maguire (a), the late Lord Chancellor, when Master of the Rolls, enunciated the proposition in the following terms, which seem even more clear than those employed by Sir Edward Sugden :-"Being released from the debt by the person to whom the Company are liable at law, and by the same person in the character of trustee conferred on him by the owner of the policy, I cannot see how they could be involved in or bound to see to the execution of the trusts; nor can I understand how the rules which apply to purchasers of real property subject to incumbrances, and bind them in certain cases to see to the due application of their purchase-money, can be extended to debtors so as to implicate them in trusts created by their creditors, and oblige them, as preliminary to the payment of their legal debts, as the means of being released from them, to institute suits in Equity to enforce the execution of trusts in which they have no species of interest." Even with respect to real estate, it would seem that from the (a) 6 Ir. Eq. Rep. 137. 1854. Chancery. FORD v. RYAN. Judgment. 1854. Chancery. FORD V. RYAN. Judgment. necessity of the case, a power to give receipts would be implied when trust-money is lent on real estates. Lord St. Leonards lays down that proposition, and refers to a case in the Rolls, Harrison v. Beverly (a), where, though the Master of the Rolls refused to compel a purchaser to accept a title depending on a receipt given under such circumstances, he expressed an opinion that such a payment was not a breach of trust. Lord St. Leonards says:"A power to vary the securities, or in other words, to receive the money which the mortgagor has a right to pay off, must exist somewhere; and where can it exist, if not in the person by whom the advance of money was made?" Thus it would seem that the very power to call in money, even though charged on real estate, implies that there must be a person to receive the money, and to give a valid receipt for it. Now, who is to receive the amount of this policy? Surely, it must be the trustee directed to call in the amount in the speediest manner-a trust which would hardly be fulfilled by obtaining payment through the medium of an Equity suit. Then, the deed provides that the trust shall arise when the money is got in and advanced taking the literal construction of the words, the first trust is only to call in the money, and the trust for payment to the parties does not arise until that has been accomplished. But I do not rest my judgment on that construction, but on the common sense view of the transaction. It would entangle Companies of this kind in the most serious difficulties, if they were held bound to take cognizance of equities like this affecting their policies. I do not think that there is any established practice of inquiring respecting the application of funds due on a policy when paid to the person who has a right to require payment of it. If I thought there were, I should make further inquiries; but, on the whole, I believe that the only foundation for the petitioner's case is the passage read from Mr. Bunyan's book. This I cannot consider authority; it is merely a statement of the inference which he deduces from the cases; and, in that inference, I do not at all agree. I think, therefore, that this suit cannot be maintained. Gen. Hearing Book, 14, f. 102. (a) 2 Sug. V. P. 848. 1853. Chancery. BLAKE v. BLAKE. Feb. 17. April 24, 25. of civil death, day. as a HENRY BLAKE died on the 26th of June 1851, seised and possessed The doctrine of real and personal estate. His sisters, the petitioner Eliza Blake, in consequence of proand the respondent Maria Blake, were his co-heiresses and next-of- fession monk or nun, kin. On the 14th of April 1840 he had made a will, the provisions is not law at the present of which it is not necessary to state. After the death of Henry Blake, the respondent Maria Blake entered into possession of his property, and applied for letters of administration with the will annexed. A caveat was lodged in the name of the petitioner, in the Ecclesiastical Court, which was afterwards withdrawn, and administration was granted to the respondent. The petition was filed by Eliza Blake against Maria Blake, for an account of the personal property of the testator, and of the rents received by the respondent since his death, and for a partition of the real estate which was not devised by the will. Maria Blake, by her answering affidavit, set up the following defence :-That the petitioner, who was of the Roman Catholic religion, had previously to the death of the testator entered into and become a professed member of a certain religious order, known as the Loretto Nuns, and bound by the rules and vows of said order; and that she had continued and was a professed nun, and a member of the Loretto Convent near Rathfarnham in the county of Dublin, and therefore was not entitled to or capable of taking any portion of the testator's real or personal estate, or to obtain any account of the rents and profits as sought by the petition. The affidavit further stated that the petitioner would not derive any benefit whatever even if she were declared entitled to a distributive share of the testator's personal estate, or to a moiety of his real estate, inasmuch as it is an invariable regulation of the convent of which she was a member, and of all similar institutions, that all property which any of the professed nuns acquire or become Statement. |