1840. Bennett v Fowler.

ing the stock, &c., shall be made in the first instance ex parte, and shall be an order to show cause only.

THE MASTER OF THE ROLLS said he entertained great doubts whether the act in question authorized courts of equity to make the order which was asked: he would however, read the act and affidavits, and make inquiry as to the orders made by the Vice-Chancellor. His Lordship suggested, whether the proper mode of proceeding would not be to get the charging order in the court of common law, and then come here by petition for the ordinary stop order.

February 25.-THE MASTER OF THE ROLLS said he found that such an order had been made by the Vice-Chancellor; that his Lordship had read the act, but he still conceived he had no authority to make the order: he therefore thought that the more satisfactory course would be to make an application to the Lord Chancellor.(a)

1840 February 25.

*BENNETT v. FOWLER.

[*302]

A bill prayed the specific performance of an agreement, "if a good title could be made." At the hearing it was declared that the agreement ought to be specifically performed, and it was referred to the Master to inquire whether a good title could be made. The Master reported in the negative. The plaintiff on further directions waived all objections to the title, and proposed to take the property; this was resisted by the vendor: Held, that the plaintiff was entitled, but being aware at the first hearing, of the objections to the title, he ought to pay the costs of the investigation in the Master's office.

FOWLER, being indebted to the plaintiff, agreed to sell him certain freehold premises for 5251, and it was agreed that the debt should be retained out of the purchase-money.

The plaintiff filed his bill, praying a specific performance of the agreement, "if a good title could be made" against the personal representative and heir at law of Fowler; they, by their answers, insisted that the agreement had been waived; a decree was however made whereby it was declared that the agreement ought to be specifically performed and carried into execution; and it was referred to the Master to inquire and state to the court whether a good title could be made to the property.

The Master reported that a good title could not be made, and the cause now came on for further directions.

Mr. Pemberton and Mr. Wood, for the plaintiff, proposed to waive all objections to the title and to take the property.

(a) Note. An application was afterwards made to the Lord Chancellor, who, after conferring with the Master of the Rolls and Vice-Chancellor, decided that the court had no jurisdiction to make the order. (11th March, 1840.) See the subsequent act of the 3 & 4 Vict. c. 82. [The case before the Lord Chancellor is reported 4 Myl. & Cr. 431.]

1840. Bennett v. Fowler.

Mr. G. Turner (in the absence of Mr. Tinney) resisted a specific performance of the agreement, and contended that the bill must be dismissed; he argued that, as it now appeared that a good title could not be made, the prayer of the plaintiff's bill could not be granted; that the court could not decree the performance of an agreement for the sale of a pretended title, or order [*303] the conveyance of an estate to which the defendant was not entitled,

as it would be contrary to the statutes against maintenance and champerty. That if the bill had alleged the truth, namely, that the defendant had no title, it would have been dismissed,(a) and that the result must be the same now that fact appeared judicially. That, if dismissed, the bill must be dismissed with costs, as the plaintiff when he filed his bill was aware of the objection; that if the plaintiff should succeed, he ought to pay the costs of the investigation in the Master's office, as, if he had consented to take the title at the original hearing, the expense of the reference would have been saved.

That the declaration in the decree that the contract ought to be specifically performed, did not prevent the court dismissing the bill, now that it appeared that the defendants could not make a good title. Warren v. Richardson.(b) Mr. Wood, in reply.

[*304]

THE MASTER OF THE ROLLS:-The bill prayed a specific performance. of the agreement, "if a good title could be made." Having regard to the duty of a vendor to make a good title, it appears to me immaterial whether these words were there or not. If a plaintiff prays the specific performance of an agreement, he does not intend to take the property if there is no title. The allegation of the defendants was, that the agreement has been waived, but at the hearing a decree for specific performance was pronounced, and a reference was directed to the Master to see if a good title could be made. Under that decree it was the duty of the vendor to make out a good title, and the right of the other party to have it; but I do not know *any reason why the purchaser who has that right may not, if he thinks fit, dispense with the performance by the other party of his duty, and waive carrying in objections to the title; he insisted, however, on the objections to the title, and the result was that the Master reported that a good title could not be made; this means, not that the parties have no title at all, but that they cannot make out such a title as the plaintiff is bound to accept. The plaintiff now says, I am willing to waive all the objections, and to accept the title which can be made: the question is, if he has not a right to say so. I am of opinion that the obligation to which a vendor is subject to make out a title is intended for the benefit of the purchaser only, and that if he thinks fit to waive it, he has a right to do so.[1]

I think, therefore, the plaintiff has a right to have the agreement specifically performed, so far as it can be, and it being admitted that the plaintiff at

(a) Nicloson v. Wordsworth, 2 Swan. 369.

(b) 1 Younge, 1.

[1] Vide Besant v. Richards, Taml. 509. Westervelt v. Matheson, 1 Hoff. Ch. Rep. 37. Tanner v. Smith, 10 Sim. 411.

1840-Hue v. Richards.

the hearing was acquainted with the objections to the title, he must bear the costs of investigating the title; the other costs ought to be borne by the defendants.[2]

"HUE v. RICHARDS.

[*305]

1839

November 7.

By articles of partnership, in case of the death of a partner the survivor was to pay the amount of his capital according to the last half yearly rest, and to take the stock, &c. After the death of one, a different arrangement was entered into between his executors, (one of whom was the surviving partner,) and his widow, who was beneficially interested under the will, by which the surviving partner was to take the stock at a valuation, and get in the credits, and pay the joint debts, and out of the share of the deceased partner in the surplus, to pay his separate debts and the widow's legacy. The widow by this bill sought to set aside this arrangement for fraud, and to have an account of the partnership transactions, and of the profits subsequent to her husband's death: Held, that the plaintiff was entitled to the production of the accounts of the business, as carried on after the testator's death.

MESSRS. RICHARDS and Hue carried on business in partnership together, under articles of partnership whereby it was agreed, that in case of the death of either of the partners, the survivor should not be obliged to account for the stock and profits, but should give security to pay within six months so much as upon the last half-yearly rest should appear to be due to the deceased partner, and the capital, stock, &c., were thereupon to be conveyed to the surviving partner.

Hue died in 1835, and he appointed his partner Richards and a Mr. Uuderwood his executors, who proved his will. By his will he bequeathed to the plaintiff, his widow, 20007. and a life interest in the residue of his property. Upon the death of Hue the above stipulation in the partnership deed was not carried into effect, but an arrangement was entered into between the widow and the executors, by which the surviving partner (being one of the execu tors) was to take the partnership stock, &c., at a valuation which had been previously made; and he was to get in the credits, and pay the partnership debts; the share of Hue in the residue being ascertained, was to be applied in payment of his separate debts, and the residue was to be then applied by instalments in satisfaction of the plaintiff's legacy.

*This bill was filed by the widow against the executors, and [*306] sought to set aside this arrangement by various suggestions of fraud, and prayed also for an account of the partnership dealings, &c., and of the profits made by the surviving partner by means of the capital of the deceased partner.

All fraud was denied by the answer.

[2] Vide Scoones v. Morrell, 1 Beav. 251. Reeves v. Gill, id. 378, 379. Taylor v. Brown, ante, 180.

1840.-Hue v. Richards.

A motion was now made for the production of documents admitted by the defendant Richards to be in his possession; and the question was, whether the books of account of the trade since the death of Hue were to be ordered to be produced.

Mr. Pemberton and Mr. O. Anderdon, for the plaintiff.

Mr. Girdlestone and Mr. Roupell, contra, contended that the plaintiff was not entitled to the documents relating to the business carried on subsequent to the testator's death. That the court would be compelled to decide the previous question as to the validity of the arrangement, before it would hold that the plaintiff was entitled to see the private accounts of the defendant. That even if that arrangement were set aside, then the plaintiff would be remitted to her original position under the partnership articles, and the estate of the testator would be entitled only to the share of the deceased partner according to the previous half-yearly rest, and would not be entitled to participate in the subsequent profits.

THE MASTER OF THE ROLLS (without hearing a reply.)-The documents, the production of which is objected to, are those which show the [*307] dealings with the joint *property after the death of one of the partners,

and which the defendant calls his private accounts. I do not now intend to enter into the merits, but it appears that after the death of Mr. Hue an arrangement was made with the plaintiff and the executors, the whole of which the plaintiff says ought to be set aside. She says that in the valuation which was the foundation of the arrangement, she was not rightly treated, and that she is entitled to an account of the application of that, which at the death of her husband, was the joint property of her husband and the surviving partner; and she prays relief accordingly. It is said, in answer to the present motion, that if this arrangement is set aside, the plaintiff will be remitted to the partnership articles, and that then she will only be entitled to the value of the testator's capital as therein pointed out. I do not say that that will be the result of the case, or that she may not be entitled to the relief asked; she may become entitled to an account of the partnership property since her husband's death; and if so, she will be entitled to these accounts kept by the defendant. It is said that the form of the prayer of the bill is erroneous, but there is no plea or demurrer to it The plaintiff has a right to the production with reference to the relief asked by the bill, and which may possibly be had at the hearing of the cause.

1839.-Bebb v. Beckwith.

1839 November 22, 26.

*BEBB V. BECKWITH.

[*30S]

Bequest in trust for all the children of the testator's late uncle J. B. deceased, to be divided equally amongst them, and the issue of such of them as should be deceased, share and share alike, such issue to be entitled to the share of his deceased parents, equally amongst them: Held, that a grand-child of J. B. whose parent was dead at the date of the will, was entitled to take.

THE question in this case was, whether James Beckwith, the son of a son of James Beck with deceased who was dead at the date of the testator's will, was entitled to a share of the funds in question.

The testator directed his trustees to stand possessed of property, in trust, for all and every the children of his late uncle, James Beckwith, deceased, to be divided equally amongst them and the issue of such of them as shall be deceased, share and share alike, such issue to be entitled to the share of his, her or their deceased parents equally amongst them, subject, &c.

The father of the claimant was one of the children of the testator's uncle, James Beckwith, deceased; but he was dead at the date of the will.

Mr. Pemberton and Mr. Rupell, for trustees.

Mr. Stinton, for James Beckwith the claimant, cited Tytherleigh v. Harbin.(a)

Mr. Piggott, for the surviving children of the uncle, contra, contended that the issue took only the share of the parent by way of substitution, and as here the parent could take nothing, being dead at the date of the will, his child could not be substituted; he cited Christopherson v. Naylor, b) Butter v. Ommaney,(c) * Waugh v. Waugh,(d) Smith v. Smith,(e) [*309] Collins v. Johnson,(g) Giles v. Giles.(h)

THE MASTER OF THE ROLLS:-The funds, it is to be observed, are to be held for all the children of James Beckwith, deceased, to be divided equally, not amongst those children, but amongst them and the issue of such of them as shall be dead at the period of distribution, which was the future time contemplated by the testator, and imported by the words. I think that the words are applicable to the cases of children who might die before or after the date of his will, provided they were dead at the future period in contemplation, and I consider the direction to be, in effect, to hold the fund in trust for division amongst the children then living, and the issue of such of them as may be then dead; and the testator having used the words "share and share alike," follows them up with a direction, that the issue of a child were to take amongst them only a child's share, the effect of which, I think, is to limit the amount of the share to which the issue are entitled, but not to make the gift to issue a gift which could only take effect by way of substitution for the gift to a child living at the date of the will.

(a) 6 Sim. 329. (e) 8 Sim 353.

(b) 1 Mer. 320.
(g) 8 Sim. 356.

(c) 4 Russ. 7.
(h) Ib. 360.

(d) 2 Myl. & K. 41.