1851. Re The SOUTH WALES Railway Company. deducing, evidencing, and verifying the title, but not to bear all the expenses necessary for clearing up and completing the vendor's title. It has been held, that where, after a sale to a Company, the vendor allows the legal estate to descend on infants, his estate, and not the Company, must bear the expenses of a suit to obtain a conveyance from the infant. The Midland Counties Railway Company v. Westcomb (a), The Midland Counties Railway Company v. Caldecott (b). So, where he devises the property in strict settlement. The Eastern Counties Railway Com pany v. Tufnell (c). Secondly these expenses were incurred for the benefit of the whole estate, and should not be thrown, exclusively, on the purchaser of an acre. They also cited Farrar v. The Earl of Winterton (d). Mr. Glasse and Mr. Freeling, contrà. It is but equitable that public Companies, who take the land of individuals whether they consent or not, should at least indemnify them against all the expenses which they may occasion. Here the parties were perfectly satisfied to allow things to remain as they were, and the whole of these expenses have arisen from the act and for the benefit of the Company. It was a matter of title and not of conveyance. The vendors had an undisputed equitable title; but the legal estate being outstanding in an infant, no conveyance could be obtained, except by proceedings in this Court. The expenses, therefore, come strictly within the terms of the Act, being charges (a) 11 Simons, 57. (c) 3 Railway Ca. 133. charges and expenses of the conveyance of an outstanding interest; and the Company were to pay for "all" conveyances, not only that to themselves, but the necessary one to Young. The Court has extended the terms of the Act in order completely to indemnify individuals; thus, under the 80th section, the Court has held that, where the owner is a lunatic, the Company must pay the costs of a reference in lunacy as to the propriety of the sale. Re Taylor (a). It cannot be conceived that the costs, given under the 80th section, in the case of a doubtful title, were to be more extensive than those given by the 81st section, where the title is good. The hardship of not allowing these costs is evident, for, in small purchases, the costs incurred by the vendor and disallowed might swallow up the whole purchase money. There is no case in which any Company has since 1845 resisted the payment of such costs. As to other lands being included in the proceeding, the answer is, that the expense was not thereby increased, and that, but for this purchase, the proceeding would never have been adopted. There can, therefore, be no apportionment of costs. In re Branmer's Estate (b). The MASTER of the ROLLS. I am of opinion that these costs do not come within the 82nd section of the act. It is important to observe the difference between the 80th and 82nd clauses. The 80th provides, that railway companies shall pay not only the costs and reasonable charges and expenses "of the purchase or taking the lands," but also all those "which (a) 1 Hall & Twells, 432. and v. Mitchell, 12 Beavan, 486. 1 Mac. & G. 210.; and see Picard (b) 14 Jurist, 236. 1851. Re 1851. "which shall have been incurred in consequence Re thereof." But the 82nd clause, which is applicable to the present case, specifies that the costs to be paid by the Company shall be these: -the costs of the conveyance, including all charges and expenses incurred, " of all conveyances and assurances of any such lands" (which means conveyances to the Company, for otherwise they might have to pay them twice over); and also all charges and expenses incurred of all conveyances and assurances of " any outstanding terms or interests therein," and of deducing, evidencing, and verifying the title to such lands, terms, or interests, "and all other reasonable expenses, incident to the investigation, deduction, and verification of such title." I cannot think that the costs in question are costs of any "conveyance or assurance," or of " deducing, evidencing, or verifying the title," or incident to the "investigation, deduction, and verification of such title." It is said, that this was a difficulty as to the conveyance; that is so; but I find nothing in the 82nd clause which makes it incumbent on the Company to pay the expenses of getting a proper person appointed to make the conveyance to the Company. If that argument were carried to its full extent, it might be necessary to pay the costs of every mortgagee on the land, because the concurrence of a mortgagee is always a question of conveyance, and not of title. Here it was the duty of the vendor selling the property to have a proper tenant. to the copyhold, for without one, it was exposed to a forfeiture to the lord. Besides this, the vendors got a. tenant admitted, not only to the land sold to the Company, but to the whole estate. I think the Company are bound to pay the costs of the conveyance, and of deducing deducing, evidencing, and verifying the title, but not of the proceedings instituted for the purpose of constituting a proper person to convey the estate to them. I am of opinion that the Taxing Master ought not to have allowed these costs. 1851. Re THE DOWLING v. HUDSON. May 1. HE testator bequeathed to his daughter, the Plain- Order for a tiff, a legacy of 20007. Receiver made before appearance against a De to avoid He bequeathed to his second son, Hugh Hudson, fendant, who certain leasehold property, provided he attained twenty- had absconded one (which he had not yet done), and he gave the service. residue of his real and personal estate, charged (as it was insisted) with the 20007., to his eldest son, Patrick Hudson, whom he also appointed executor. The testator died in 1840, and interest was paid on the 20007. down to 1850, when proceedings were taken in the Court of Chancery in Ireland, where Patrick Hudson was residing, to recover the 20007. Patrick Hudson made default in answering, came to England, and having sold the principal part of the freehold property, he absconded, to avoid the proceedings, and went to reside abroad, but it was not known where. The principal part of the property being in England, this suit was instituted against Patrick Hudson and the other necessary parties, to recover the 20007. The Plaintiff Ff2 1851. DOWLING ບ. HUDSON. Plaintiff was unable to find the Defendant, Patrick: Under these circumstances, Mr. R. Palmer and Mr. R. R. Dean now moved er parte for a Receiver of the testator's estate. They cited Coward v. Chadwick (a) and Gibbins v. Mainwaring (b). The MASTER of the ROLLS made the order. (a) 2 Russ. 150 (n) & 634., 2 (b) 9 Simons, 77. Beavan, 298. NOTE. On this subject, see 2 Maddock's Ch. Practice, p. 288. (3rd edit.); Vann v. Barnett, 2 Bro. C. C. 158.; Pitcher v. Hillier, 2 Dick. 580.; Coward v. Chadwick, 2 Russ. 150 (n.) & 634. ; Maguire v. Allen, 1 Ball & Beatty, 75.; Browne v. Blount, 2 R. & M. 83., and see the judgment of Sir John Leach at length, 9 L. J. (O.S.) Ch. p. 78.; Stratton v. Davidson, 1 Russ. & Myl. 485.; Shaw v. Shore, 5 L. J. (N. S.) Ch. 79. ; Meaden v. Sealey, 6 Hare, 621.; Gibbins v. Mainwaring, 9 Sim. 77.; Holmes v. Bell, 2 Beav. 299.; Ramsbottom v. Freeman, 4 Beav. 145., 1 Hogan, 76. 96.; Fell v. Brown, 2 Bro. C. C. 276.; Leahy v. Dancer, 3 Molloy, 108.; Lyde v. Hale, 4 L. J. (N. S.) Ch. 180. |