1838.-Morris v. Timmins.

directly or indirectly, then he would sell a particular portion thereof described in the agreement to the plaintiff, the plaintiff paying for the same pro rata, according to the price the moiety might be sold for at the auction or otherwise; and the plaintiff "agreed to the terms and conditions before stated, and further, that in the event of his becoming the purchaser of the aforesaid moiety belonging to the late Mr. Waters, by auction or by private contract directly or indirectly, then that he would give up the said purchase to the defendant upon the terms he purchased the same, the defendant performing. the agreements and covenants aforesaid." The agreement contained stipulations as to the boundary walls, the title and the expense of the conveyance. The property was not bought either by the plaintiff or the defendant, but was purchased by Sir Henry Protheroe; whereupon a further agreement was entered into between the plaintiff and the defendant, which was endorsed on the former one, and was expressed as follows:-"The piece of land alluded to in the within written agreement having been purchased this day, by public auction, by Sir Henry Protheroe of Bristol, at an exorbitant price, it is further agreed between the said Aaron Timmins and Thomas Morris, that neither of them will purchase the same of the said Sir Henry *Pro- [413] theroe, or of any other person, until the said Aaron Timmins and Thomas Morris have agreed upon a sum to be given for it, subject to the stipulations and conditions in the written agreement."

In July, 1832, the agent of Sir Henry Protheroe offered to sell to the plaintiff his moiety of the plot of ground, but the plaintiff declined, on the ground of the agreement existing between him and the defendant; the agent shortly after called on the defendant, at the request of the plaintiff, and requested him to come to some arrangement or agreeinent relative to the plot of ground, and to fix a price to be given for the purchase of it, and to carry the agreement into effect, when the defendant objected to the title, and said, "he had no objection to divide the said plot of ground with Sir H. Protheroe, provided he should have the part of the plot of ground that was nearest to or joined the complainant's house." Another person called on the defendant, at the request of the plaintiff, and asked what price, under the agreement, should be offered for the property, to which the defendant answered, "that he would not fix, upon any price at which the said plot of ground should be purchased, as he had come to a determination to divide the said plot of ground."

On the 17th of April, 1834, the plaintiff agreed to purchase the property of Sir H. Protheroe, and on the following day he sent to the defendant to inform him of the purchase, and that he was then ready to carry the agreement between them into effect, when the defendant, in answer to the communication, stated, "that the plaintiff had forgotten his honor, and broken faith with him" the defendant; and he added, "that he would have nothing to do with the plaintiff, but that he would divide the plot of ground yard by yard."

*The plaintiff filed this bill in September, 1935, against Timmins, [*414]

1838.-Morris v. Timmins.

insisting that the defendant had abandoned the agreement, and that it was no longer binding on the plaintiff, and praying for a partition of the plot of ground, with an alternative prayer for a specific performance of the agreement if the court should think it binding upon the plaintiff.

Mr. Pemberton and Mr. Willcock, for the plaintiff, asked for the usual decree for a partition.

Mr. Kindersley and Mr. G. Richards, for the defendant, objected that the plaintiff was not entitled to have a partition of the property, on the ground, that by the agreement between the plaintiff and the defendant, neither of them was to purchase the moiety belonging to the representatives of Mr. Waters until they had agreed upon a sum to be given for it.

THE MASTER OF THE ROLLS:-In this case it appears that a piece of ground, situate between the houses of the plaintiff and defendant, belonged to the defendant and to the executors or trustees of a person of the name of Waters, as tenants in common; and that the interest therein of Waters being about to be put up for sale, the plaintiff and defendant entered into an agree ment to become respectively entitled to different portions of this ground, and to carry their intentions into effect by purchase, and by subsequent partition and division; and on the 30th of January, 1819, being the morning of the intended sale, an agreement in writing was entered into, whereby it was stipulated that the defendant should bid at the sale, and that in the event of his

becoming the purchaser of the moiety of the land in question, he [*415] should convey a portion of *the whole of such land to the plaintiff;

and that, if the plaintiff should become the purchaser, he should give up his purchase to the defendant, the defendant performing the covenants of such written agreement.[1]

At the sale by auction Sir Henry Protheroe became the purchaser at the sum of 4501. which being considered an exorbitant price by the plaintiff and defendant, they entered into another agreement in writing, that neither of them would purchase the same of Sir Henry Protheroe or any other person, until the plaintiff and defendant had agreed upon a sum to be given for it, subject to the stipulations and conditions in the former written agreement.

The plain intention of the latter agreement was that neither the plaintiff nor defendant should prejudice the other by given an exorbitant price; the object was to carry out the first agreement without prejudice to either party; it is expressed, that unless the two should agree, it was not the intention of the parties to enable either to put an end to the first agreement, but it prevents the putting the first agreement in force, by payment of an exorbitant price to the prejudice of either party.

The agreement was entered into on the 30th of January, 1819, and no dispute arose between the plaintiff and defendant until 1832. In the early part

[1] Was not this tantamount to an agreement between the parties not to bid against each other at the sale at auction? Quere. As to the illegality of such agreements, see Hawley v. Cramer, 4 Cow. 718, 732.

1838.-Morris v. Timmins.

of that year, Sir Henry Protheroe being desirous of selling the interest in the ground in question, which he had acquired by purchase, made an offer thereof through his agent Thomas, to the plaintiff, which is proved by the evidence of Thomas. The plaintiff, upon receiving this offer, had immediate regard to his agreement with the defendant, and having regard to that agreement, he desired Thomas to communicate with the defendant; [*416] communication was had with the defendant, who, it appears to me,

did not refuse, but evaded the subject: he said there was some difficulty on the title; I do not understand what it was; but the consequence was, that the offer of Sir Henry Protheroe made in the beginning of 1832 was not acted upon.

In the year 1833, it is stated that an offer of sale was made by Sir Henry Protheroe to the defendant, and the letter containing it has been produced.

It is stated by Thomas, that from 1832 to 1834 he repeatedly applied, at the instance of the plaintiff, to the defendant, to enter into an agreement to accept the offer of Sir Henry Protheroe, and that these communications ended in this, that the defendant said he would divide the plot of ground with Sir Henry Protheroe on certain terms, namely, that his portion should be on the side of plaintiff's house: this is positively sworn to; his object was to exclude Morris altogether from that portion of the ground.

On the 21st of February, 1834, the plaintiff sent Aubrey to communicate with the defendant on the subject of the offer; and upon that occasion the defendant in answer said he would not agree to any price, that he intended to divide the land with the owner of the other half. Sir Henry Protheroe had a right to transfer his interest in the property, and, under the first agreement, the plaintiff had a right to accept the transfer: by the second agreement either could prevent the other giving an exorbitant price for the land, but I am of opinion that the defendant had no right to say, "this agreement shall never be carried into effect, because I will never agree on a price; I will not only prevent the performance of the agreement, but will [*417] prevent you from ever becoming owner of the land either with me or independently of me." The consequence of this refusal on the part of the defendant was, that the plaintiff entered into a separate agreement with Sir Henry Protheroe, dated the 17th April, 1834, to purchase the property for 3501. having been compelled to do so or be excluded for ever. Even after the purchase, the plaintiff was desirous of having the agreement carried into execution, and he sent his son to the defendant to tell him so; but the defendant replied, "that the plaintiff had forgotten his honor, and broken faith with him," and added "that he would have nothing to do with the plaintiff. but that he would divide the plot of ground yard by yard." The defendant therefore rejected the agreement, because he considered that plaintiff had not observed the second memorandum of agreement, which stipulated that the price should be first agreed upon between them; the defendant in effect says to the plaintiff. "You have not performed the agreement, and although I was

1838.-Morris v. Timmins

the cause, I will divide the land yard by yard." Some negotiation between the parties took place after this, and we have the evidence of Jones, who is the solicitor of the defendant, who says that the defendant in April, 1835, gave notice that he would dispute any conveyance of the moiety from Prothroe to the plaintiff, on the ground of the agreement whereby one was not to purchase without the consent of the other, and the defendant then stated "that he would stand by the agreement," which prevented one purchasing without the other.

I think in this respect the defendant was wrong, and the question is, whether he has not rejected the other agreement: I think he has abandoned the agreement, and is not entitled to the benefit of it.

[*418]

*The plaintiff is entitled to a partition: then comes the question as to costs, as to which there is some difficulty. The plaintiff claims a partition, and has suggested the agreement in his bill as a thing which might be set up by the defendant. The defendant says there is an agreement which prevents the plaintiff claiming any right to a partition, because he had no right to purchase-he disputes the right to a partition, and therefore this is not a common partition suit, where, as at law, no costs are given on either side at the hearing. (a) This is a case in which the right to a partition is disputed by reason of an agreement which is set up in bar: this takes it out of the common case. I am of opinion that the defendant is not entitled to the benefit of the agreement which he has relied on, and as costs have been incurred thereby, he ought to pay such portions of the costs as have been occasioned by setting up the agreement.[1]

The bill stated that a road or carriage way had been set out by Thomas Waters and the defendant over part of the land, for the convenience of their respective dwelling houses forever. This was admitted by the answer.

Mr. Kindersley, on behalf of the defendant, asked that special directions might be given to the commissioners, that in inaking the partition, this right of road should not be interfered with.

[*419]

Mr. Pemberton, contra.

*THE MASTER OF THE ROLLS:-The setting out of the road is stated in the bill and is admitted by the answer, and I think it ought

(a) See Beames on Cests, 48. Seaton on Decrees, 187, 188. Agar v. Fairfax 17 Ves. 533. [1] "The complainant in his bill, claimed a small piece of land which did not belong to the parties in common; and he made an unfounded charge against the defendant, as to his having agreed not to erect any mill on the part of the premises conveyed to him, which should interfere or come in competition with the business of the complainant. But the defendant, on the other hand, set up in his answer, an agreement that the dam and pond should be forever held in common for the use of the mills of both parties, so long as such mills should be holden in severalty, and as to a particular mode of using the water, which allegation in the answer is equally unsustained by proof. There was no impropriety, therefore, [in the decree of the Assistant Vice Chancellor,] in leaving both parties to bear their own costs in relation to those matters, and as to the proofs which related to matters in controversy between them, not affecting the right to partition." Walworth, Ch. Smith v. Smith, 10 Paige, 480.

1839.-Spire v. Smith.

not to be interfered with; but I do not think that I ought to give any special directions by the decree.

SPIRE v. SMITH.

1839: May 28.

Several annuities given by will and codicils, held to be cumulative.

THE question in this case was, whether certain annuities, given by the will and codicils of the testator, were cumulative or substitutional.

By his will the testator gave as follows:-"I give to Mr. William Spire, of Laverton, in the parish of Buckland, in Gloucestershire, 201. per annum for and during his natural life, and should he die before his present wife, at his demise I will that she shall have 507. for herself, in order that she may bury him gentlemanlike with that sum. I will that my executors shall so arrange matters, that he may receive those payments quarterly, without failure even once."

By a second codicil to his will, the testator gave as follows:-" 1837, July 20th, I give to William Spire, of Laverton, in the parish of Buckland, in Gloucestershire, the sum of 101. per annum, for and during his natural life; and I give to his present wife, for and during her natural life, independent of him, unless jointly their each 107. be united for their mutual comfort."

*And by the fourth codicil, he gave in the following words: [*420] -"8th September, 1837. If my God should take me off suddenly, it

is my wish that my executors should provide of William Spire, of Laverton, Gloucestershire, and his now wife, 107. each per annum more than I have given them by my will. Jeremiah Knill."

Mr. Stinton, for the plaintiffs, William Spire and his wife, argued that the annuities were cumulative and not substitutional, and claimed the several annuities given by the will and two codicils.

Mr. Koe, for the executors, contra.

THE MASTER OF THE ROLLS.-It is difficult to say what the testator intended; but the inclination of my opinion is, that all the annuities take effect, [his Lordship read the will,] so that the husband is to have 207. a year for life, and the wife after his death is to have 501. for a particular purpose, namely, to bury her husband. Then comes the second codicil [his Lordship read it.] He has not distinctly given 107. a year to the wife, but has done it by implication, for it is impossible not to see that he intended to give it to her, for he speaks of their each 101. a year. He has given to each 101. a year, that to the wife being independent of her husband, or giving to her a power over it, and this therefore cannot be substitution for the gift by the will [his Lordship read the fourth codicil.][1] By the fourth codicil, he gives to the husband

[1] "In cases where there have been slight variations only between the legacies given by a