defendant. The defendant's grandfather might have been compelled to be admitted and to make a good title. The liabilities, therefore, of the ancestor devolve upon the defendant as his heir. The grandfather and grandmother had the power to make such a settlement, and to do all acts which were necessary for carrying it into effect: and where the settlement is defective, the Court will assist a purchaser for valuable consideration in such a case, upon the same principle as the Court relieves against an imperfect execution of a power.

Mr. Rolt and Mr. J. J. Jervis, for the defendant.-Under the settlement of 1782, the defendant, as heir-at-law of the wife, has a clear title both at law and in equity. The question is, whether that title is destroyed by the subsequent settlement of 1791. The husband of Mary Gutteridge was never admitted, and was therefore never able to make any valid disposition of the copyholds, unless this Court will provide some remedy for the defect in the title. But as the settlement of 1791 was a voluntary settlement, the Court will not assist the parties who claim under it. The purchaser took the title with notice of all its defects, and the circumstance that he gave a good consideration to the parties from whom he purchased, will not induce the Court to interfere with the rights of others who claim by a paramount title.

1 Scriven on Copyholds, p. 258.
2 Sugden on Powers, p. 100 et seq. and
cases there cited.

Wainewright v. Elwell, 1 Mad. 628.
Mr. J. Parker replied.

Nov. 13.-The LORD CHANCELLOR.This is an appeal from a decree of the Vice Chancellor, who dismissed the bill so far as related to the moiety of a copyhold property which had belonged to the defendant's grandmother. The case opened to me at the bar was, that the Vice Chancellor had misapprehended the nature of the case that the question was simply whether the husband of that grandmother had obtained an absolute interest in the property by means of a surrender by the wife for the benefit of her husband and his heirs. That the surrender had never been carried into operation by an admittance; but that, nevertheless, the effect of that surrender was to give the husband an indefeasible interest in the property,

and that he had a right by mandamus to compel the admittance of the heir of the husband; and that the plaintiffs, claiming by purchase through the husband, would be entitled to the absolute interest in the property, and the whole difficulty had arisen from the same person being the heir of the grandmother who was the heir of the grandfather. That that was a mere accident: if it had been any other person, the heir of the grandmother would not have been a necessary party to the suit at all; that the heir of the grandfather would have been entitled to compel the lord to admit him without reference to any claim on the part of the heir of the grandmother, and being so admitted, he would of course hold in trust for those who purchased from the heir of the grandfather. I was surprised at that being the nature of the case, and I thought it proper to look into the pleadings, and I found the case upon the pleadings had no resemblance whatever to that case.

The Vice Chancellor did not misapprehend the nature of the case he perfectly well conceived the nature of it, and decided, as he must have decided upon the view which he took, and which I think was the correct view, that there was no case against the heir of the grandmother. Nothing can be more clear on the pleadings; nobody who read the pleadings could possibly have supposed the case was not a case between the heir of the grandmother and the plaintiffs, and not at all between the heir of the grandfather and the plaintiffs.

The case was simply this :-there was the husband and wife: (I do not speak of the other moiety, that is not now in question), the wife was entitled to herself and her heirs to one moiety of those copyhold premises. In the year 1791 she had surrendered out of court her moiety of these copyhold premises, which had been settled to her and her heirs, to herself for life, with remainder to the husband for life, with remainder as the husband should appoint: and in default of appointment to the heir of the husband. There was no presentment alleged, and therefore none could be presumed to have been existing no admittance upon that surrender at all; but the wife died afterwards. The husband dealt with this as if he had been admitted; for he surrendered to other persons through whom the present plaintiffs claim; the present plaintiffs being,

in fact, purchasers from those who claim through the husband. The bill then alleges, after stating these surrenders, "that James Gutteridge the husband was never admitted tenant, pursuant to the custom of the manor, of the said copyhold closes of land and hereditaments of or to which the said M. Gutteridge and E. Rudd" (who had the other moiety)" were so seised or entitled as afore-said; and that by reason thereof the said surrender of the 17th of September 1791, and likewise the said surrender of the 4th of February 1820, and admittance of the 19th of May 1826" (those are the transactions after the death of the wife by the husband), "were, as the plaintiffs are advised, invalid in law and inadequate to pass any legal interest in the said copyhold closes and hereditaments; but that upon the death of the said J. Gutteridge the son intestate as aforesaid, the defendant, as such heir of the said M. Gutteridge as hereinbefore mentioned, became and is now entitled at law, according to the custom of the said manor, to the said undivided moiety of or to which the said M. Gutteridge was so seised." Therefore, that the defendant, not the heir-at-law of the father, but the heirat-law of M. Gutteridge, the grandmother, became and was entitled, according to the custom of the manor, to one undivided moiety. That is perfectly true: there being a surrender and no admittance, no presentment out of court, it was either absolutely void, or if not absolutely void it remained just as before settled to the heir of M. Gutteridge.

If it is not absolutely void, yet it is void for the purpose of passing any legal estate. But then, there being a surrender and no admittance, the legal estate descends on the heir of the surrenderor. In either case the legal estate would be vested in the heir of M. Gutteridge. But then the bill goes on to state, having already disposed of the legal estate, "and that upon the death of the said J. Gutteridge the husband as aforesaid, the said defendant, pursuant to the custom of the said manor, and as such heir of the said J. Gutteridge the husband as herein before mentioned, became and is now entitled to be admitted tenant of both moieties." That is to say, the legal estate descended on the heir of the grandmother; but it asserts that the effect of these transactions between the heir of the grandfather

and the grandmother, was to give the heir of the grandfather a title as against the legal estate so admitted to descend on the heir-at-law of the grandmother and then it alleges that the defendant in respect of the legal estate brought an ejectment, and it prays for an injunction to restrain the proceedings in that ejectment, and to have the title completed for the benefit of the plaintiffs so claiming the legal estate from the heir of the grandmother through the grandfather, who is alleged to have become beneficially entitled, though not legally entitled as between the grandfather and the grandmother to the estate. Nothing can be more distinctly stated than that, as being a case against the heir of the grandmother claiming through the grandfather: not against the heir of the grandfather, but as against the heir of the grandmother. But it is quite obvious, when once it got into the grandfather's heir, the heir of the grandfather would of course be entitled, and could only hold it for the benefit of those who purchased from him. But the object of this suit is to assert a title, and to ask a court of equity to create a title against the heirat-law of the female surrenderor, that female surrenderor having been a feme coverte, and having surrendered her moiety out of court; no presentment and no admittance having been made, so that the legal estate descended on her heir.

Then, this is perfectly voluntary, no consideration moving to the surrenderor at all: a transaction totally imperfect, incapable of conferring any legal title at all, and a court of equity is called upon and asked by the interposition of equity to compel the performance of a voluntary transaction of that sort. It was not contended at the bar that could be so. The whole case was put upon the mistaken notion that the case was against the heir of the husband, not against the heir of the wife. It is admitted that if you want an equity against the heir of the wife, you must shew some consideration. Being a deed purely voluntary, the Court would take the view the Vice Chancellor took. It is quite clear the pleadings shew that to be the real nature of the case between the parties, and there is not a shadow of question, when the case is understood, that the decree of the Vice Chancellor is right; therefore the appeal must be dismissed, with costs.

Covenant-Condition precedent-Marriage, Restriction of.

A party covenanted with a single woman to pay to her for her life, subject to the proviso thereinafter contained, an annuity of 401. per annum. The proviso was, that if she should marry, the annuity should be reduced to 201. per annum. She afterwards married:-Held, that she was entitled after her marriage to the annuity of 20l. per year only; there being no unqualified gift of an annuity of 401. for life, and the qualification of being unmarried being as to each successive payment a condition precedent.

Held, also, that the principles of law, upon which restraints upon marriage were void as against public policy, did not apply to this case.

The particulars of this case, and the decision of the Vice Chancellor of England, are reported 16 Law J. Rep. (N.s.) Chanc. 113.

By an indenture, dated the 1st of May 1802, John Webb covenanted with Elizabeth Castle to pay to her during her life, subject to the proviso thereinafter contained, an annuity or clear yearly sum of 40%. The proviso was as follows:-"In case the said Elizabeth Castle shall at any time hereafter happen to marry with any person or persons whomsoever, then from and immediately after her marriage the said annuity or yearly sum of 40%. herein before covenanted and agreed to be paid to her for and during her life as aforesaid shall be and is hereby reduced to the annuity or yearly sum of 20%. only, which said sum of 20%. shall in such case be paid and payable unto the said Elizabeth Castle, from the time of her marriage for and during all the remainder of her life, by equal quarterly payments, on the same days and times, and in the same manner and form as are herein before mentioned and appointed for the payment of the said sum of 40%., without any deduction or abatement as aforesaid. The first quarterly payment of the said sum of 20l. to be made on such of

the said quarter days as shall next happen after her marriage, anything herein before contained to the contrary thereof in anywise notwithstanding." Elizabeth Castle was at that time unmarried, but had had two children by the covenantor. In October 1845 she married Richard Elborough. The question was, whether she was entitled to the full annuity of 40l. after her marriage, or whether it ought to be reduced to 201. per

annum.

The Vice Chancellor was of opinion that the proviso in the grant of the annuity was. intended to operate as a restriction on the marriage of the annuitant, and was invalid, and that she and her husband were entitled to the full annuity of 40l. per annum.

The question was now brought before the Lord Chancellor, by way of appeal.

Mr. Spence, Mr. Bacon, Mr. Montagu, Mr. Winstanley, and Mr. Hoffman appeared for different parties.

Morley v. Rennoldson, 2 Hare, 570;
s.c. 12 Law J. Rep. (N.s.) Chanc. 372.
Hovenden v. Lord Annesley, 2 Sch. &
Lef. 607.

Lowe v. Peers, 4 Burr. 2225.
Long v. Dennis, Ibid. 2052.
Hartley v. Rice, 10 East, 22.
Barton v. Barton, 2 Vern. 308.
Richards v. Baker, 2 Atk. 321.

The LORD CHANCELLOR said the case was of considerable importance, and that none of the cases which had been cited had any direct application to this case. The question argued in the present case was not connected with any bequest, but was whether a proviso in a deed was invalid so far as it operated in restraint of marriage. His Lordship thought the effect of the grant was the same as if the covenantor had agreed to pay 401. per annum until the annuitant married, which would be free from objection. Perhaps some further authorities might be discovered, if the case stood over for a short time.

Jan. 12, 1847. The case was again mentioned to his Lordship, and some additional authorities cited.

Co. Lit. 206.

5 Vin. Abr. 95.

Rishton v. Cobb, 9 Sim. 615; s. c. 5 Myl. & Cr. 145; 9 Law J. Rep. (N.S.) Chanc. 110.

Baker v. White, 2 Vern. 215. Brandon v. Robinson, 18 Ves. 429.

But

The LORD CHANCELLOR forwarded the following judgment to the parties during the long vacation in 1848.-This case had escaped my notice, from not having been included in a list of matters undisposed of, which had been forwarded to me. The question is whether Elizabeth Elborough (before her marriage Elizabeth Castle) is entitled to an annuity of 40l. per annum, or of 201. per annum only, from the time of her marriage, under the testator's covenant of the 1st of May 1802. Under the decree of the 15th of June 1832, for administering the estate of John Webb, the claim was confined to 201. per annum subsequent to the marriage, and was so reported. in 1845 the Vice Chancellor of England made an order, permitting the parties to go in before the Master and make such proof as they might be able at their own expense, paying the costs of the application. Under this order the Master made his report, dated the 17th of March 1846 disallowing the charge. He stated his opinion that the proviso in the deed of the 1st of May 1802, for the reduction of the annuity of 40l. to an annuity of 201. in the event of Elizabeth Castle marrying, was not contrary to public policy. This finding was brought before the Vice Chancellor, and by an order of the 6th of November, 1846, he declared that the proviso was void as contrary to law, and that the parties were entitled to prove for the arrears of an annuity of 40l. per

annum.

I am of opinion that the claimants were well advised in claiming only an annuity of 201. per annum, and that the report of the Master was right. The question turns upon the construction of the covenant of the 1st of May 1802, for there really cannot be any doubt as to the rule of law.

The questions which have arisen as to conditions subsequent in restraint of marriage do not appear to me to apply. There can be no doubt that marriage may be made the ground of a limitation ceasing or commencing. It is unnecessary to refer to authorities for the purpose. Richards v. Baker, Sheffield v. Lord Orrery (1) and Gordon v. Adolphus (2), were cited in the (1) 3 Atk. 283. (2) 3 Bro. P.C. 311.

argument. If, then, this grant is a grant of 401. per annum until marriage, and from the event happening of 201. per annum for life, there can be no doubt but that such a gift is lawful, and that after marriage there can be no demand for the 40l. per annum. The claim is grounded upon contract and obligation on the part of the grantor: the parties claiming must therefore prove that their claim is within the terms of the contract and obligation. What, then, are these terms? "That John Webb shall pay to Elizabeth Castle, for and during the term of her natural life, subject to the proviso hereinafter contained, an annuity of 401. Provided always, and it is hereby declared and agreed by and between the parties hereto, and it is the true intent and meaning of these presents, that in case the said Elizabeth Castle shall at any time hereafter happen to marry, then from and immediately after her marriage, the said annuity or yearly sum of 407. shall be and is hereby reduced to 204. only; which said sum of 201. shall in such case be paid and payable unto the said Elizabeth Castle from the time of her marriage, for and during all the remainder of her life, anything herein before contained to the contrary in any wise notwithstanding." Is there, in this, any contract or obligation to pay 40l. per annum after the marriage of Elizabeth Castle? The argument in favour of the claim assumes that there is an unqualified grant of an annuity of 40l. per annum for life, and an attempt to defeat the gift by an illegal consideration subsequent. This proposition I think fails in all its parts: for there is not any unqualified gift of an annuity of 401. for life. The contract and obligation is to pay to Elizabeth Castle during her life, "subject to the proviso hereinafter contained," an annuity of 40l. at certain times specified. The contract and obligation is not absolute and unqualified; but is explained, qualified, and bound by the proviso, and must be construed precisely in the same manner as if the terms of the proviso had been introduced into and made part of the contract and obligation. It is therefore to pay 401. per annum during so much of her life as she shall remain unmarried: which brings the case within the unquestionable rule of law as acted upon in the cases referred to. One of them indeed, Sheffield v. Lord Orrery, is upon this point stronger than the present

case; for there was a gift for life without any qualification in the terms of the grant, but a subsequent condition giving the property over in the event of marriage, and Lord Hardwicke said that the gift over was to take effect on the marriage.

There is another way in which this may be viewed equally fatal to the claim. The contract and obligation is to pay a certain sum at certain stipulated periods during the life of Elizabeth Castle; but she is by the proviso at each of those periods to be qualified by the fact of not being married. Can she claim any of such payments though disqualified by the fact of marriage? The condition, therefore, if there be one, is precedent and not subsequent: a distinction well observed upon by Mr. Roper on Legacies, vol. 1, p. 658, 3rd edition.

I am, therefore, of opinion that the Master's finding was right, and that the report must be confirmed, and that the petitioner must pay all the costs subsequent to the order of the 29th of April 1845, except the costs of the appeal.

The bill in this suit stated the following case:-By a lease, dated the 12th of May 1842, the plaintiffs demised to Mr. Taylor a cotton-mill and land for the term of twenty-one years. Mr. Taylor entered into possession of the demised property, and subsequently deposited the lease with the defendants, Messrs. Greg & Ormerod, by way of mortgage. On the 12th of October 1846, the plaintiffs put in a distress on the property for rent, on which occasion Mr. Ormerod joined in the replevin bond. On the 25th of November 1846 another distress was put in for a further sum of

100%. in respect of rent, which Mr. Greg paid on the 3rd of December. On this payment being made, the possession of the property was given up to Messrs. Greg & Ormerod. In June and July 1847, negotiations took place between the plaintiffs and Messrs. Greg & Ormerod, as to the action against Taylor for rent, which ended in the payment of the arrears by Messrs. Greg & Ormerod to the plaintiffs. In March 1848, Messrs. Greg & Ormerod made a proposal to the plaintiffs that the property should be let to a Mr. Doyle at a reduced rent, in reply to which, the solicitors for the plaintiffs informed Messrs. Greg & Ormerod that the plaintiffs considered them as the tenants of the property.

The bill charged that Messrs. Greg & Ormerod had conducted themselves towards the plaintiffs as assignees of the lease, although no assignment had actually been made, and that the plaintiffs had accepted them as assignees. The bill also charged that Messrs. Greg & Ormerod, with a view to getting rid of their liability in respect of the rent and covenants of the lease, had given back the lease to Taylor, and put him in possession of the property.

The bill prayed that it might be declared that Messrs. Greg & Ormerod were liable to the rents and covenants in the lease; and that they were bound to accept, and that Taylor was bound to execute to them, a legal assignment of the premises for the residue of the term, and that the plaintiffs were entitled to have such assignment executed by the defendants.

To this bill Messrs. Greg & Ormerod demurred for want of equity.

The demurrer now came on to be heard.

Mr. Russell and Mr. Roundell Palmer, for the demurrer, referred to the case of Flight v. Bentley (1), and cited Moores v. Choat (2), by which that case had been overruled, and also Arkwright v. Colt (3).

Mr. Wigram and Mr. Webster, for the bill, contended that the case before the Court did not come under the principle of Moores v. Choat, and that Messrs. Greg & Ormerod had by their conduct rendered themselves liable to the plaintiffs in the