It occurred to me, at one time, that an equity might have arisen from this circumstance: that as the jointure was an annual sum, the owner of the estate was bound to keep down that annuity; but the mortgagee of the reversion might have taken possession of the estate, paying the previous incumbrances, and keeping down the annual charges on the income. I am of opinion, that, having failed to do so, he cannot complain that the reversioner has neglected a duty which he might have compelled him to perform, and that consequently, both as regards the charge of 20,000l. and as regards the arrears of the jointure, and the interest of the 60007., the Plaintiffs are entitled to priority over the mortgage of the executors of John Graham Clarke. I am of opinion, therefore, that I must make the usual foreclosure decree in their favour, as prayed by the bill. 1851. DAVIS v. BARRETT. 1851. July 22. A testator gave a power of sale to two trustees and the survivor, "his heirs, executors and administra that a title de THIS MACDONALD v. WALKER. HIS was a special case. The testator, by his will, devised his real estates to John Bissell and John Simcox, upon trust, for certain persons for their lives, and afterwards to convey and assign them unto all his nephews and nieces, who should be living at his death, tors." Held, equally. And, for the purpose of such division, “he did thereby authorise and empower his said trustees and the survivor of them, his heirs, executors, and administrators, from time to time to sell and dispose of all or any part or parts of his said freehold and leasehold messuages, buildings, and hereditaments, and real and leasehold estates, devised and bequeathed to them," &c. pendent on a sale by the devisee in trust of the survivor, was too doubtful to force on a purchaser ; and secondly, that the defect was cured, by the release of all the cestuis que trust to the The testator died in 1819, and his trustee John Bissell died in 1828, leaving his co-trustee John Simcox surviving him. John Simcox died in 1837, having by his will devised to John Simcor the younger (who was surviving trus- his heir-at-law) and to Thomas Simcox all estates vested in him as a trustee. representa tives of the tee. Consideration of the cases of Cooke v. Crawford and Titley v. Wolstenholme. On the 22nd of March 1844, John Simcox- the younger and Thomas Simcox sold and conveyed the real estate in question to the Plaintiff Macdonald. By a deed poll of the 11th of April 1844, after reciting the will, and that John Simcox the younger and Thomas Simcox, as devisees of the trust estate, had converted the real estate into money and duly ac counted for the same; the nephews and nieces, parties representing them, released John Simcor the or the younger younger and Thomas Simcox, and the estate of John Simcor deceased, from all actions &c. in respect of the devise, trust, legacy, or other matter in the will, or any sales &c. made, or any neglect or default in the management of the estate. Macdonald having, in 1850, contracted to sell the property to the Defendant Walker, a question arose, whether he could make a good title. A case was submitted for the opinion of the Court under Sir G. Turner's Act, upon the following points: 1st. Whether, under the indenture of the 22nd of March 1844, a legal and equitable estate in fee-simple in the property sold passed to William Macdonald. 2nd. If such estate did not so pass, whether the defect was or not remedied by the deed poll of the 11th of April 1844. 3d. Whether, under the circumstance herein before stated, William Macdonald had or not deduced a good title to the hereditaments in question. Mr. Roupell and Mr. Metcalfe, for the Plaintiff. First, the surviving trustee was justified in devising the trust estate to proper persons, rather than let it descend. It is true that the word "assigns" is not used in the power of sale; and it will be said, that this case is identical with Cooke v. Crawford (a), in which case Sir L. Shadwell held, that where a power of sale is given to three persons, and the survivors or survivor, or the heirs of the survivor, a sale could not be made by the devisee of the survivor, and that, by devising the trust 1851. MACDONALD V. WALKER. 1851. MACDONALD V. WALKER. trust estate, the surviving trustee did an act which he was not authorised to do. But that decision was founded on no previous authority, was a surprise upon the profession, and contrary to the understanding of conveyancers (a). In the subsequent case of Titley v. Wolstenholme (b), Lord Langdale's opinion appears to have been opposed to that expressed in Cooke v. Crawford. He says (c) "I cannot, at present, see my way to the conclusion, that in the case contemplated, the surviving trustee commits a breach of trust by not permitting the trust estate to descend, or by devising it to proper persons, on the trusts to which it was subject in the hands of the surviving trustee." Here, it is to be observed, the power was, in fact, executed by the heir of the last surviving trustee. The great inconveniences which might arise by allowing the trust estate to descend upon an improper person, are in that case pointed out. On this point they commented on the cases of Cole v. Wade (d), Miller v. Priddon (e), Bradford v. Belfield (g), Townshend v. Wilson (h), and they referred to 2 Sug. Powers, 489. 6th ed. Secondly, they argued, that even if the Plaintiff was wrong on the first point, still the objection was cured by the release executed to the representatives of the surviving trustee by the parties beneficially interested; for the legal estate having passed by the will of the surviving trustee to his devisee, and having been by him conveyed to the Plaintiff, the release by all the parties beneficially interested bound every equitable interest, so that, by these means, the Plaintiff had a complete legal and equitable title. (a) See the comments on this Mr. (d) 16 Vesey, 27. (h) 3 Maddock, 261. Mr. Walpole and Mr. Faber, contrà. The Defendant is a willing purchaser, but this is not such a title as he can be advised or compelled to accept. The case is governed by Cooke v. Crawford (a), which is exactly in point. Titley v. Wolstenholme is inapplicable, for there the word " assigns" was used; the absence of which expression in the power of sale was observed upon by Sir L. Shadwell in Cooke v. Crawford (a). The author of the power has expressly limited the authority to the heir of the surviving trustee, and the Court cannot alter it by extending the power to a person not filling that character. The inconveniences pointed out by the Plaintiff and also by Lord Langdale in Titley v. Wolstenholme (b), assume, a descent to "improper persons;" but it is just as easy to suggest equal inconveniences which would arise from a devise to "improper persons." In Mortimer v. Ireland (c), the survivor of two executors and trustees bequeathed the trust property to A., upon the same trusts: it was held, that A. was not properly constituted a trustee. So in Ockleston v. Heap (d), where a testator devised estates to trustees, their heirs and assigns, and the surviving trustee devised them upon the same trusts, it was held, that devisees were not duly appointed trustees. trustee. It is true that the sale to the Plaintiff was made and the conveyance executed by the heir of the surviving That would have been right if he had acted alone; but he joined with a stranger, and this invalidates his acts, for it is impossible to say how much of the discretion and responsibility is to be attributed to the (a) 13 Simons, page 97. (b) 7 Beav. p. 436. (c) 6 Hare, 196. heir, 1851. MACDONALD WALKER. |