1844.

WOOD

V.

WOOD.

ment, not in order to deprive her of any right, but for the mere purpose of enabling the husband to give a satisfactory security for the money he was desirous of borrowing. I think, therefore, that the Plaintiff has the same rights against the equity of redemption, which she would have had on the unincumbered estate if this deed had not been executed.

Having this equitable right, then arises the question whether it is satisfied. I am of opinion that there is no rule of this Court by which I can say that the gift by the will is to be considered a satisfaction.

It must be declared that the Plaintiff is entitled upon this estate, which is now released from the mortgage, to the rent charge of 2007., and also to payment of the annuity of 300%., if the state of the testator's assets will permit.

1843. June 12.

A fund was held on trust for one for life, with remainder

THE

COLYER v. CLAY.

HE testator John Willson, by his will dated in 1809, gave to trustees the sum of 2000l., to be invested in the funds and held in trust for his wife for life, and after her decease, on trust to pay the said sum and diviand C. equally, dends unto his nephew John W. Warren and his nephew if living, with benefit of sur John Willson, equally, share and share alike, in case vivorship between them, they should be then alive; but if either of his said

between B.

B. sold his reversionary interest. At the time of

nephews should be then dead, then upon trust to pay the whole of the said sum unto the survivor of them,

his the sale, C. was dead, but the fact was neither known to the vendor nor to the purchaser. Held, that the sale could not stand.

Extent of lien on a fund, where the grantor of an annuity agreed to sell to the grantee the fund on which the annuity was secured, and to repurchase the annuity, but, in consequence of a mutual mistake, the contract for the sale of the fund could not be specifically performed.

his said nephews John W. Warren and John Willson to and for his own use and benefit.

The testator died soon after, and the 2000l. was invested according to the trusts.

In June 1813, John Willson granted to the Plaintiff Colyer an annuity of 1137. payable during his life, and he assigned all his reversionary or expectant interest in the 20007. upon certain trusts, for better securing the annuity. The deed contained a power of repurchasing the annuity, upon payment of 7561. and the arrears.

John Willson fell into bad circumstances; the annuity being unpaid, a negotiation took place for the cesser of the annuity, and for the purchase by the Plaintiff, of John Willson's interest in the 2000l., at a price to be fixed by an actuary. A case was accordingly, with the concurrence of both parties, laid before an actuary for his opinion. The case and the opinion were as follows:

CASE. A., who is sixty-three years, of age, has a life interest in 20007., which sum, at her death, is to be equally divided between the testator's nephews, B., who is forty-four, and C., who is twenty-four years of age, with benefit of survivorship. Quære. What is the present worth of B.'s interest, and what the value of C's? Considering the legacy duty of 21. 10s. per cent. to be deducted before they can receive their shares on the death of A.

OPINION. The present value of B.'s interest in the above reversions, after deducting the legacy duty is 500l. 8s. And the present value of C.'s interest, after making the same deduction, is 5897. 10s.

27th Oct. 1819.

Will. Morgan.
Equitable Assurance Office.

The

1843.

COLYER

v.

CLAY.

1843.

COLYER

v.

CLAY.

The following contract was entered into between the parties:

"I do hereby agree to sell to Mr. William H. Colyer, all my present and future interest and title in and to the sum of 20007., to which I am now, or may hereafter be entitled, under the will of my late uncle John Willson, at or for the price of 4901.; such sum to be deducted from the sum of 1416l. 8s., due from me to him, and I also engage to secure to him the balance of 9261. 8s., with simple interest, by my acceptance to his draft, and to execute to him a bond for that amount, whenever called on so to do.

"January 12th, 1820.

"John Willson."

At the same time the following account was stated between the parties :

"Balance of former account due to Mr. £ S. Colyer the 28th September, 1815.

To four years' annuity to 29th September,

1819.

241 16

I acknowledge this account to be correct, E. E. January 12th, 1820.

John Willson."

By an indenture dated the 1st of February 1820, reciting that Willson was indebted to the Plaintiff in the

(a) This meant the repurchase money for the annuity.

sum

sum of 14167. 8s., and that he had agreed to sell him all his interest under the will, in satisfaction of 4907. 10s. part of the 1416/. 8s., it was witnessed that in consideration of the 490l. 10s., Willson assigned to the Plaintiff, all that sum of 2000l. bequeathed by the will. Notice of the deed was given to the trustee.

It turned out, that at the date of this deed John W. Warren was dead, he having died in January 1819; but the fact was unknown both to Colyer and to Willson.

In 1836 the testator's widow died, and this bill was filed in 1839, by Colyer, praying for a transfer of the whole fund; the Plaintiff offering, in case it should appear that John W. Warren was dead prior to the purchase, to deduct, from what was due, such further sum as the Court might deem right. But if the Plaintiff should not be entitled to the benefit of his purchase, then that he might be declared entitled to a lien on the trust fund for the arrears of the annuity and repurchase money, together with interest, or that the annuity might be declared to be subsisting, and to be, together with the arrears, a charge on the trust funds.

year

It appeared, in the course of the proceedings, that in the 1817 John Willson had executed a settlement of his reversionary interest in favour of his wife and children, but notice had not been given to the trustees.

Mr. Pemberton Leigh and Mr. Chandless for the Plaintiff. The parties proceeded on a common error; neither of them was aware of the death of Warren; and in the case stated for the opinion of the actuary, the interest of Willson seems, in several respects, to have been incorrectly stated prejudicially to the Plaintiff. The Plaintiff, though he insists on his purchase, does not

seek

1843.

COLYER

V.

CLAY.

1843.

COLYER

บ.

CLAY.

seek to have the advantage which he did not contract for, but he is willing to pay an increased price proportionate to the improvement of the interest by the death of Warren.

The Plaintiff consented to give up his annuity on the faith of the purchase; if the purchase is set aside, the parties must be remitted to their original position, and the Plaintiff will be entitled to the benefit of his annuity, and to a lien on the fund for the arrears down to the present time.

As to the marriage settlement, it was never communicated to the trustees. It was unknown until the filing of this bill, and it is therefore void as against the Plaintiff, who gave notice of his deeds. To perfect an assignment of a trust fund, notice must be given to the trustees. Dearle v. Hall (a), Loveridge v. Cooper (b), Foster v. Blackstone. (c)

Mr. Campbell for Willson, and Mr. Kindersley and Mr. Moore for his wife and children, contrà. This contract was entered into by Willson, under an entire misapprehension of his interest. In consequence of the death of Warren, he was entitled in reversion, not to a moiety, but to the whole, and the legacy was stated to be 2000%. money instead of stock, which was then more valuable. This contract, therefore, having been entered into under a mistake, cannot be enforced as it stands, and the Court has no jurisdiction to enforce it as asked, namely, with such a variation, in its terms, as will entirely alter the nature of the contract.

The arrangement between the parties consisted of independent matters: a repurchase of the annuity,

(a) 3 Russ. 1.

(b) Ibid.

the

(c) 1 My. & K.297., and 3 Cl. & F. 456.