1839.-Hobson v. Bell. [*17] 1839 *HOBSON v. BELL. GLYNN v. BELL. February 18, 19, 25. On a purchase from a mortgagee, of a fund standing in the name of trustees, it is not an essential blot on the title, that notice of the incumbrance was not given to the trustees, if it can be shown, that no subsequent incumbrancer has given notice. Whether the title to a trust fund is bad, where in consequence of the death of trustees, information cannot be obtained from them of the incumbrances of which they had received notice? Quere. A sale was made by a mortgagee under a power, subject to certain special conditions (stated in the text) Held, that they were not of such a depreciating character as to invalidate the sale. All objections to a tide were to be taken within twenty-one days from the delivery of the abstract, or be deemed waived, and time was, in that respect, to be considered the essence of the contract: Held, that the twenty-one days did not begin to run, until a perfect abstract had been delivered. A mortgagee had a power of sale in case of default being made in payment of mortgage money: Held, that the unsupported solemn declaration, under the 5 & 6 W. 4, c. 62, of the mortgagee alone, of a default having been made, was not sufficient evidence of that fact, as between vendor and purchaser. The certificate of a stockbroker, of a fund standing in the bank, held insufficient evidence of that fact as between vendor and purchaser. THIS suit was instituted by a vendor against a purchaser, for the specific performance of a contract for the purchase of a reversionary interest in a sum of 30007. consols. It appeared that William Welch, by his will dated in 1798, gave to three trustees certain property, in trust for sale, and to invest the produce in the 3 per cents, and to place the same to the stock then standing in his name in the books of the Governor and Company of the Bank of England, and apply the same in the manner thereinafter mentioned. The trusts thereof (as determined by the court on this occasion) were for the testator's widow, Ruth Welch; for life, with remainder to William Welch, the son, absolutely. The testator appointed his three trustees and Ruth Welch his executors. By an indenture dated the 25th of March, 1822, made between Wil[*18] liam Welch of the one part and William "Hobson of the other part, af ter reciting the will and death of the testator, the proof of his will by all his executors, and that the testator at the time of his decease was possessed of 30001. 3 per cent. imperial bank annuities, standing in his name in the books of the Governor and Company of the Bank of England, and then standing in the name of Thomas Plant as surviving trustee under the will of the testator William Welch, William Welch mortgaged his reversionary interest in the 30007. imperial bank annuities for securing 13107. 13s. stated to be due upon a judgment obtained by William Hobson in 1817. The mortgage was made subject to a proviso for redemption on payment of the principal, by half yearly instalments of 351., with interest at 5 per cent. The deed. contained a power enabling the mortgagee, his executors, &c., in case of nonpayment of any of the said instalments or of the interest, to sell the reversionary interest, either by public auction or private sale, for such price as 1839.-Hobson v. Bell. could reasonably be gotten for the same, and upon payment of the purchase mone to give proper receipts for the same, which it was declared should be good discharges to the purchasers, who should not be answerable for any loss, misapplication or non-application thereof; and out of the money, after paying the expenses, the mortgagee was to retain the principal sum of 13107. 13s. and all interest then unpaid, and to pay the residue to the mortgagor. William Hobson died in August, 1831, and the plaintiff, Anne Hobson, was his executrix. Default (as was alleged by the plaintiff) having been made in payment of the instalments, the plaintiff put up for sale, by auction, the reversionary interest in the 30007., which was described as, 30001. being part of **31007. three per cent. consolidated bank annuities standing in the [*19] books of the Bank of England in the names of trustees under the will of Mr. William Welch, deceased. The property was not sold, but was purchased by private contract by the defendants on the 13th of October, 1835, subject to certain special conditions of sale. The fourth condition of sale was as follows: "The vendor shall deliver an abstract of title to the purchaser, or his solicitor, within two days of the day of sale, to the stock in question, and all and every objection to the title shall be made and communicated in writing to the vendor's solicitor within twentyone days after the delivery of the abstract, and if the same be found valid the vendor shall be at liberty to rescind the contract on returning to the purchaser his deposit money; but all and every objection to the title not so taken and communicated within such period of twenty-one days from the delivery of the abstract aforesaid shall be deemed waived and in this respect, time shall be considered the essence of the contract." There were further conditions, to the effect that the purchaser should not require any other person than the vendor to join in the assignment, that all copies of deeds, &c., should be obtained at the expense of the purchaser, that any mis-statement, &c., should not annul the sale but should be the subject of compensation; and that on the purchasers failing to comply with the conditions, a resale might be made, and that the deficiency should be made good by the purchaser. Within the two days from the day of sale, the vendor's solicitor delivered an abstract of title, in which, however, material portions of the will of the testator were omitted, and which was also imperfect in other par- [*20] ticulars. The only evidence of the identity of the stock was the certificate of a stockbroker, that there was then standing in the bank books the sum of 31001. in the joint names of the three trustees of the will of the testator; and the only evidence, of such a default in payment as to give the executrix of the mortgagee power to sell, was the solemn declaration of the executrix herself under the 5 & 6 W. 4, c. 62, that the sum of 13107. 13s. with interest from the date of the mortgagee, except the first quarterly payment, 1839-Hobson v. Bell. was then due on that security. The three trustees of the testator's will were stated to be dead, and a Mr. Plant was stated to be the survivor, but no evidence was produced as to these facts, except the recital in the mortgage deed. A bill being afterwards filed by the vendor for the specific performance of the contract; a reference was then made to the Master as to the title, who reported that the plaintiff had made ont a good title to the property, and that the plaintiff had delivered a perfect abstract previous to the filing of the bill. The defendant took exceptions to this report, which now came on for argu ment. Mr. Pemberton, Mr. Blunt and Mr. Joseph Humphry, in support of the exceptions. Mr. Kindersley and Mr. Rudall, contra. Several questions arose on the argument of these exceptions of which the following were the principal: First whether the declaration of the plaintiff was sufficient proof of [*21] the power of sale having become *exercisable, it being said that the declaration of the party interested was insufficient. In answer to this Corder v. Morgan,(a) Clay v. Sharpe(b) were cited, in which cases it was observed a similar objection might have been, but was not, raised. Secondly, whether the certificate of the stockbroker was sufficient evidence of the stock being then standing in the bank, and whether the recital in the mortgage deed was sufficient evidence of the identity of the stock and of the trusts on which it was held. On this point it was observed, that it was the present practice of the Bank of England to allow no information to be given as to the amount of stock in their books. Thirdly, it was objected by the purchaser, that as the priorities of incumbrancers, on trust funds, depended on the order in which they gave notice to the trustees; and as the trustees of the will were dead, it was now impossible for the purchaser to ascertain whether the trustees had received notice of any other incumbrances besides that of the plaintiff; that the plaintiff's title was therefore necessarily bad, or so doubtful that the court would not force it on a purchaser, Price v. Strange.(c) Fourthly, it was said, that the conditions of sale were so depreciating as to amount to a breach of trust.(d) Ord v. Noel.(e) Fifthly, the plaintiff insisted, that it was not competent for the purchaser to insist on any objection to the title which had not been communicated in writing within twenty-one days from the delivery of the abstract. [*22] *Sixthly, it was argued on behalf of the defendant, that supposing the court to entertain any of the objections raised, the vendor, who was here a plaintiff, would not be entitled to any further inquiry as to the title; on this Fildes v. Hooker,(g) Portman v. Mill(h) were cited. (a) 18 Ves. 344. (b) 2 Sug. Vend. 337. (c) 6 Mad. 164. (d) 9 Jarman's Byth. 406, note. (b) (a) 1 Russ. & M. 696. 1839.-Hobson v. Bell. February 19.-THE MASTER OF THE ROLLS, as to the first objection, said that the power of sale arose in the event of default being made in payment of the instalments, the only evidence of which was the unsupported declaration of the plaintiff, an interested party; that the case cited did not apply, and that in the absence of an authority, he could not hold that there was sufficient evidence that the event had happened on which the right of exercising the power of sale was to arise. February 25.-THE MASTER OF THE ROLLS (at the conclusion of the arguments on the other points) said, the principal question which I have to decide is, whether this matter is to be referred back to the Master. The defendant has raised many objections to the title, and alleges that their nature and the conduct of the plaintiff with regard to them are such, as to disentitle her to the indulgence of a farther inquiry. With regard to all those objections, I am certainly of opinion that the plaintiff has not performed that which was her duty. In the first place, I think she has not done what she ought, in respect of proving the indentity of the stock it is impossible to rely on the certificate of a stockbroker, as the only evidence for the *purpose of showing that the [*23] stock is standing in the name of certain trustees. It is not easy to connect the 30007. imperial stock stated in the deed (supposing the deed to be evidence that there was 30007. imperial stock,) with the stock standing in the name of the testator at the time of his death, and which it is alleged was subsequently converted into 31007. three per cents. I think the purchaser was entitled to evidence of the identity of the stock, and also that it was subject to the trusts of the will, for on that the vendor's title depends: this not having been produced, the defendant is entitled to further evidence on that point. With respect to the trustees, and the notice given to them, this, undoubtedly, is a question of very great magnitude; and, whenever it comes to be decided, it must be decided after the most careful consideration. I do not, however, understand, that in a transaction of this kind, it is an essential part of the title of the vendor to show that notice has been given to the trustees of the fuud; such notice is important, in order to prevent a subsequent purchaser or incumbrancer from obtaining priority;[1] but if no other purchaser or incumbrancer has given notice, then it does not appear to me to be Foster v. Hargreaves, Foster v. Blackstone, 1 Meek v. Kettlewell, [1] Vide Dearl v. Hall, and Loveridge v. Cooper, 3 Russ. 160, n. 1. 1 Keen, 287. Timson v. Ramsbottom, 2 Keen, 35, 49, n. 1; 53, n. 2. Myl. & K. 297. Jones v. Jones, 8 Sim. 643. Meux v. Bell, 1 Hare, 73. id. 473. 1 Keen, 169 n. 1. 2 Sim. 263 n. 1. It is not necessary to give notice of an equitable incumbrance to more than one of several trustees of the property, so long as the circumstances of the case remain unaltered by the death of that trustee, or his continuing to act as such trustee or otherwise. Meux v. Bell, ubi supra. A valuable extract from this case will be found in the Editor's note, 2 Keen. 49. 1839.-Hobson v. Bell. material that the plaintiff has given no such notice of his deed. . The object of notice is to exclude a subsequent purchaser and incumbrancer on the fund; and if it can be shown that no subsequent party has come in, then the fact that notice has not been given, would not, as it seems to me, be an essential blot on the title. It is, however, necessary that full means should be afforded of most carefully inquiring whether notice has or has not at any time been given to the trustees; hence it becomes important to know, who were the persons filling the character of trustees from time to time. [*24] This has not been shown, neither has the time when the several trus tees died been proved, nor who was the survivor. It is said that this proof is not necessary, because an application was made by the purchaser to the party who was stated by the vendor to be the representative of the last surviving trustee. The application was naturally made to the person pointed out by the vendor, but that by no means renders it unnecessary to ascertained that the representation was really correct. No evidence whatever has been given that Plant was the surviving trustee; if he was not, the title, so far as it depends on that matter, is good for nothing. With regard to the breach of trust which is alleged, I cannot say that I very satisfactorily follow the argument which has been used on that subject nor can I say that these conditions of sale are of such a depreciating character as to amount to a breach of trust, or constitute an objection to this title. By the conditions of sale the vendor was to deliver an abstract of title to the purchaser, within two days from the day of sale; an abstract was delivered within that time, which was imperfect, not only in the particulars adverted to on a former occasion, but plainly imperfect in most, if not all, of the particulars mentioned in the third exception to the Master's report. To say that the time for making objections should run from the time of delivering that imperfect abstract, from which it could not be ascertained what objections there might be, appears to me extremely unreasonable. The objections could only be taken when a proper opportunity had been given for taking them, or when a perfect abstract had been furnished to the purchaser, and such an abstract has not yet been delivered. By the conditions, all ob jections to the title are to be made within twenty-one days from the [25] delivery of the abstract, that is, *within twenty-one days from a time which has not yet arrived; the conditions also provide, that all objections not so taken within such period of twenty-one days from the delivery of the abstract shall be deemed waived, and that time shall be considered the essence of the contract, as to the waiver of objections not taken within that time. It appears to me, that upon the construction of these conditions, and having regard to the abstract delivered, time cannot be considered as having been made of the essence of the contract.[1] [1] It is competent for parties to make time of the essence of the agreement. Benedict v. Lynch, 1 Johns Cl. Rep 370. Neither from the statement of the facts, in the case in the text, nor from the judgment of the Master of the Rolls, does it clearly appear, how, upon the construc |