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41. per cent, interest :-Held, that the ex- always been ready and willing to pay the ecutors ought to have paid the legacy into last-mentioned sum of 561. 13s. 2d., and court, under the Legacy Act, and a decree they had tendered that sum to the solicitors was made for the plaintiff, with costs. for the plaintiffs, Messrs. Emmett & Knight,

but this offer was refused. The bill stated that Elizabeth Bolton, by The defendants further stated, that the her will, dated the 19th of February 1836, other legacies left by the testatrix were after making certain devises, legacies, and provided for in the same manner as that bequests to various persons, gave to the given to the plaintiff S. M. Rimell, and they plaintiff Eliz. Bolton Hill the sum of 601., had, since attaining the age of twenty-one to the plaintiffs Selina Maria Rimell, therein years, received the money arising from the described as S. M. Hill, Ann Leader Hill, sale of the stock representing their several and John Thomas Hill, (three other chil- legacies, and were fully satisfied therewith dren of John Hill,) the sum of 501. each, and with the course pursued by the defenand the testatrix directed the said legacies dants with regard thereto. to be paid to the respective legatees within Mr. Bethell and Mr. Rogers, for the six months after her decease ; and the tes plaintiff Mrs. Rimell, contended, that the tatrix gave and bequeathed all the residue executors ought to have paid into court the of her personal estate and effects unto the amount of the legacy to which she was defendant William Simpson, absolutely; entitled, and as they had not done so they that the testatrix departed this life on the were now liable to the full amount claimed 10th of March 1839, but the plaintiffs, the by the plaintiff. legatees, being then infants, their legacies Mr. Stuart and Mr. Walford, for the were not then paid to them; that the plain- executors, contended, that they had taken tiff S.M. Rimell attained the age of twenty. the best course which could be adopted one years some time since, and had inter- under the circumstances: they had invested married with the plaintiff Frederick George all the legacies in the funds, and had offered Rimell, and shortly after her attaining to pay the amount so invested with the twenty-one an application was made to the accumulated interest. If they had paid the executors for payment of the legacy of 501. legacies into court under the Legacy Act, with interest from six months after the the expenses attending that proceeding death of the testatrix, at the rate of 41. per would have fallen upon the legatees, and the cent. per annum, amounting altogether to several sums would still have been invested 661. The bill prayed that an account in the very same funds. All the other legamight be taken of what was due for principal tees had received the amount offered by the and interest in respect of the aforesaid lega- executors and were perfectly satisfied with cies of the plaintiffs, and that the legacy of their conduct. It was a grievous thing the plaintiff S. M. Rimell might be decreed that the executors who had taken this course to be paid, with the interest due thereon. for the purpose of saving expense to the

The defendants, by their answer, stated legatees, and who actually offered them that the several legacies left by the testa- more than they would have been entitled to trix, after deducting the legacy duty pay- supposing they had paid the money in under able in respect of the same, viz. 101. per cent., the Legacy Act, should have had this bill were invested by the defendants in the 31. per filed against them. At all events it was cent. consols, the price of which stock was submitted that they could not be liable to 911. 5s. per cent., and the legacy of the plain the costs of the proceedings. tiff S.M. Rimell, after deducting legacy duty, was represented by the sum of 491. 6s. 3d., The Vice ChanceLLOR.-It is plain that 31. per cent. consols. That the dividends the executors might have made themselves which became due from time to time were free of all responsibility by taking advaninvested in the same stock, and the whole tage of the Legacy Act, and paying the sum amounted, on the 17th of January several legacies into court; but as they have 1848, to the value of 561. 13s. 2d., and a not done so the plaintiffs are entitled to a sufficient sum of stock was on such day sold decree with costs. for the purpose of paying such legacy. The defendants further stated that they had

PLACOCK V. PENSON.

M.R. )

lieu of taking a decree to the extent already

stated against P, the plaintif preferred Nov. 4. S

bringing his action at law for damages, the Specific Performance-Covenant-For

bill must be dismissed against P, without costs. feiture-Proviso for Re-entry-Compensa

As against W, who had subsequently to the tion to Purchaser - Damages Parties to

filing of the original bill by the plaintiff, Suit-Costs.

purchased of P. the lot contracted to be

purchased by the plaintiff, and also the A. being the owner of a plot of land, all leasehold piece of land across which the new of which, with the exception of a very small road was projected, and who was made a portion which was held under a lease for defendant by supplemental bill, the bill was ninety-nine years, was freehold of inherit- dismissed, with costs. ance, sold the greater part to P, the same being deemed very advantageous for building The bill in this case was filed by the upon. Afterwards, and before any convey- plaintiff Peacock, seeking specific performance was executed by A. to P, they both ance of an agreement alleged by the bill to joined in putting up the whole plot of land have been entered into between him and in several lots for sale by public auction, and the defendants Hunter and Penson, in all previously to the sale they printed and cir- the particulars comprised in such agreement, culated particulars and conditions, accom- or with such qualifications with respect to panied by a plan of the land, from which it the new road in the pleadings mentioned appeared that to each lot wide and handsome as might be necessary and consistent with roads would be secured. The plaintiff, at the the rights and liabilities of the vendors sale, became the purchaser of one of the lots, under a lease of a strip of land for ninetybeing a portion of the land belonging to P. nine years in the bill mentioned. In June After the sale it was discovered by P. that 1844 the defendant Hunter being entitled one of the projected new roads would pass to an estate situate in the high road, Upper across the leasehold piece of land, whereby Holloway, leading from Highgate to Lonthe risk of forfeiture thereof by P. would don, and which had been previously mortbe incurred. This intended road was at gaged to one George Milner, contracted a distance from the lot purchased by the with the defendant Penson for the sale to plaintiff, and if made, could be of little him of the greater portion thereof, consistuse or convenience to him or his family. ing of a freehold mansion house, with the The plaintiff, however, having filed a bill grounds and appurtenances, and twentyseeking specific performance of the contract seven acres of land; but before any conveyin all respects,Held, that he was entitled ance was executed thereof to the defendant to a specific performance of the contract in Penson by Hunter, they previously to the accordance with the plan delineating the 16th of July 1844, on behalf of both of road in question, and intended to be made them, caused to be published and circuif it could be carried out, but as the making lated printed particulars and conditions of of the road would incur the risk of forfeiture, sale by public auction of the whole of the defendant could not be required by the Hunter's estate, in lots, at Garraway's plaintiff to make the road ;-thai A. not being Coffee House, on the 16th of July 1844. a party to the contract entered into with the A plan was circulated with the particulars plaintiff, but only having joined with P. in and conditions of sale, on which certain the sale of their respective lands, was impro- proposed new roads were delineated; and perly made a party to the suit, and must be the particulars stated that the proposed plan dismissed, with costs ; - that the plaintiff was by which the lots would be sold secured entitled as against P. to a specific perform to each lot wide and handsome roads. ance of the contract, save as to the road, The lots were eighteen in number, all of and as to that the plaintiff was entitled to a which, except lots 2, 3, 4, and 5, belonged reference to the Master to ascertain the to the defendant Penson, those lots bedamages arising to the plaintiff thereout; longing to the defendant Hunter; the legal that the plaintiff was not entitled to any costs estate in all the lots was in the mortgagee against P. up to the hearing, but that if in Milner. The object of the defendants Hun

NEW SERIES, XVIII.-Cuanc.

ter and Penson seemed to be to lay out the property on one uniform ornamental plan The printed particulars described twentyseven acres of the land as well adapted for building purposes, and set out with good roads, affording frontages eligible for the erection of genteel residences of a superior description. By the twelfth condition of sale it was stipulated that the vendor, at his own expense, within six calendar months would make and plant with lime trees the roads marked on the plan as intended roads, and form and gravel the footpaths; and that he should be repaid by the purchasers respectively of lots 6 to 17 inclusive the expenses thereof in proportion to their frontages respectively to such intended roads, the proportions respectively to be ascertained in case of difference in manner therein mentioned. By the 14th condition of sale, if any mistake should be made in the description of the premises, or any other error should appear in the particulars, such mistake or error should be matter of compensation to be settled in the usual way by arbitration. All the land was freehold, except a small strip, lying along the east side of the high road leading from Highgate to London, and between it and the freehold, containing in length from north to south 443 feet more or less, and in depth at the north end about twelve feet more or less, and which strip of land had been de mised for a term of ninety-nine years by an indenture of the 29th of October 1810, to commence from the 25th of March 1810. That indenture contained a covenant to fence and pale in the said strip or piece of ground, and at all times well and sufficiently to repair the same, and yield up the same at the end or other sooner determination of the term, and also a covenant not to stub up, cut down, or carry away, or damage, any timber, or other trees then growing or to grow thereon, without the consent of the lessors, under a penalty of 101. for every tree which should be stubbed up, cut down, destroyed, carried away, or damaged, over and above the value of such tree ; and there was a proviso for re-entry on the part of the lessors, on non-payment of the rent, or non-performance of any of the covenants. The leasehold piece of ground which had also been mortgaged to Milner was referred to in the conditions of sale, and its posi

tion with reference to the freeholds described, and it formed part of the property of the defendant Penson under the contract entered into between him and the defendant Hunter; and across it ran one of the intended roads leading to the high road between Highgate and London, and passing between lots 1 and 2.

At the sale lot 17 was bought by the plaintiff; and it was described in the particulars of sale as a corner plot of freehold building ground, possessing a valuable frontage of 233 feet, as shewn on the plan. In the month of August 1844 the defendant Penson found he could not make the intended new road between lots 1 and 2, and running across the leasehold strip to the high road, on account of the existence of the covenants contained in the lease already stated. Under these circumstances the defendant Penson's solicitor applied to Mr. Tolfree, the purchaser of lot 12, (and who was the only other purchaser at the sale on the 14th of July 1844, besides the plaintiff,) to waive the making of the intended road across the leasehold land, and he agreed to do so at once; but the plaintiff on a similar application being made to him, declined to accede to the request, but replied that he would be satisfied with an unlocked gate being put up to separate and protect the leasehold from the high road, which he insisted would be a sufficient compliance with the covenant contained in the lease to Hunter. The defendant Penson having been advised that an unlocked gate would be a breach of the covenant, his solicitor proposed to the plaintiff to make him compensation for the loss (if any) the plaintiff might sustain from the mis-statement contained in the particulars of sale, or if the plaintiff desired it, to refer the question under the 14th condition; or if the variance should be considered by the plaintiff of sufficient importance, to rescind the contract, and repay the plaintiff his deposit-money, auction duty, and costs. A few days afterwards the plaintiff wrote a letter to the defendant Penson's solicitor, stating that if the defendant refused to make the road, the plaintiff would file his bill against him. The plaintiff accordingly filed his bill against both Hunter and Penson.

The defendant Penson, by his answer, amongst other things, stated that the non

formation of the road running between lots 1 and 2 was a matter of perfect indif. ference to the purchaser of lot 17, and to the purchasers of lots 6, 7, and 18; it would not in any degree affect the convenience of the purchasers of such lots, or depreciate the value thereof respectively; and that the property was put up to auction without the defendant having duly considered the effect which the making of the proposed new road would have upon the lease.

After the cause was at issue the defendant Penson sold several of the lots, including the site of the intended road over the leasehold land, and conveyed the same to Ambrose Ward ; whereupon the plaintiff filed a supplemental bill, charging Ward, as the fact was, with notice of the sale to the plaintiff, and praying that the sale to Ward might be declared a fraud on the plaintiff, and that he might not be prejudiced by such sale and conveyance, or the registry thereof, and that the defendant Ward might be decreed to concur in all necessary acts, so as to give full effect to the contract of the plaintiff.

Mr. Turner and Mr. Glasse, for the plaintiff, contended that the plaintiff under the circumstances was entitled to a decree for specific performance of the whole contract, or as nearly thereto as a decree could be made ; that the defendant Hunter being entitled to the equity of redemption in the premises, and having joined with Penson in putting the same up for sale by public auction, in lots according to certain printed conditions of sale, he was properly made a defendant to the suit; and that the defendant Ward having purchased several of the lots including the site of the intended road, subsequently to the filing of the bill, and with notice of the plaintiff's contract, he was also properly made a defendant to the suit -Graham y. Oliver (1), Thomas v. Dering (2).

Mr. Anderdon and Mr. Lloyd, for the defendant Penson, contended that the Court would not compel the defendant Penson to make the road in question, if the making of it would create a forfeiture, and that a forfeiture would be incurred by the making of the road there could be no question, inasmuch

(1) 3 Beav. 124.

(2) 1 Keen, 729; s.c. 6 Law J. Rep. (N.s.) Chanc. 267.

as the covenant contained in the demise of the leasehold premises required that the premises should be “ fenced and paled off," and that the lessee should not cut down the trees growing thereon under a penalty of 101. for every tree to be cut down, and there was also a proviso contained in the demise giving a right of re-entry on nonperformance of any of the covenants, and it was in evidence that the road in question could not be made without cutting down some of the trees growing on the leasehold part of the premises ; that the Court would not compel a vendor to buy land with a view to the completion of his contract with a purchaser-Howell v. George (3); that the road in question (if made) would be of little, if any, service to the plaintiff, inasmuch as it would be at a distance from the lot purchased by the plaintiff, and therefore the plaintiff ought either to have consented to the defendant Penson's offer to rescind his contract, with costs to be paid by Penson, or to have accepted compensation; that there existed no privity between the plaintiff and the defendant Hunter, who claimed no interest in, and was no party to the contract between the plaintiff and the defendant Penson, nor was any specific relief asked against the defendant Hunter; and that an unlocked gate at the entrance to the leasehold premises, which was sought by the plaintiff, would clearly be a forfeiture of the leasehold premises.

The following were the other authorities cited on behalf of the defendant Penson :Lord Pembroke v. Thorpe, 3 Swanst.

437, and vide p. 443, note. Schrieber v. Creed, 10 Sim. 9; 8. c. 8

Law J. Rep. (n.s.) Chanc. 346. Storer v. the Great Western Railway

Company, 2 You. & C. C.C. 48 ; s. c.

12 Law J. Rep. (N.s.) Chanc. 65. Wedgwood v. Adams, 6 Beav. 600. The Duke of Bedford v. the Trustees of

the British Museum, 2 Myl. & K. 552;

s. c. 2 Law J. Rep. (N.s.) Chanc. 129. Fennings v. Humphery, 4 Beav. 1 ; s. C.

10 Law J. Rep. (N.s.) Chanc. 251.

Mr. Roupell and Mr. Sheffield, for the defendant Hunter, contended that the bill

(3) 1 Mad. 1.

was founded on the statement that the contract in question was the joint contract of Penson and Hunter, which was untrue; that the plan which described the various lots, and which was submitted to the defendant Hunter, and received his approbation, had reference as regarded him only to lots 2, 3, 4, and 5, which were put up to sale by public auction at the same time with the lots belonging to the defendant Penson; and that the plaintiff well knew at the time of filing his bill who the vendor was, from the draft conveyance previously forwarded to him, in which the sale by Penson to the plaintiff was recited ; and that the bill ought to be dismissed with costs against Hunter.

Mr. Teed and Mr. Rogers, for the defendant Ward, admitted that he was bound by an equity that affected Penson, but contended that the covenant to “ fence and pale off” the leasehold premises, and the clause of re-entry in case of the breach of any of the covenants, such as the cutting down any of the trees, was a fatal objection to a decree for specific performance; that in reality each purchaser of the various lots purchased the same with reference to his own particular frontage; and that considering how very trifling, if any, advantage, the road in question could have been (if made) to the plaintiff, the bill ought to be dismissed with costs against the defendant Ward.

Mr. Turner, in reply. It is important in the consideration of the case to look at the conditions of sale and the terms thereof, and to consider who were the parties thereto. Wide and handsome roads were, according to these conditions, to be secured to each lot, and it was an express term that each purchaser should pay his proportion of the expense to be incurred in the making of the intended new road, and the purchaser entered into the contract, relying on the conditions of sale, which secured to him certain benefits. In the case cited of Lord Pembroke v. Thorpe there was an agreement to build a house, which was not the subject of any definite contract; the case of Schrieber v. Creed could not be favour ably adjudicated on, the contract there being subject to alterations which the vendor might require from time to time. In Storer v. the Great Western Railway Company

no doubt was entertained by the Court as to its power to enforce the contract. With reference to the discretion of the Court to enforce contracts, it must be borne in mind, that in the present case a positive contract had been entered into ; and a mere suggestion of forfeiture is not a ground for saying a specific performance shall not be decreed. It is, besides, at least doubtful whether the trees spoken of are growing on the freehold or leasehold estate, and there is nothing in the covenant contained in the demise of the leaseholds to prevent the opening of a gate, for the purpose of a private road out of the leasebold estate into the high road, that covenant only requiring the lessee to fence and pale the leaseholds from the high road and the public, and the 101. to be paid under the demise for each tree that may be cut down is clearly intended as liquidated damages. At all events, the plaintiff is entitled to have the contract specifically performed by the defendant Penson in every respect short of incurring a forfeiture; and the case is not one for a court of law, there being inducements here to the purchaser to enter into this contract, which might not be matter for the consideration of a jury. This Court looks at a covenant like the present in reference to the entire contract, and the future disposal of the property is also an important circumstance with a purchaser, and will not be lost sight of. As respects the defendant Hunter there is no proof that he employed the auctioneer only in respect of lots 2, 3, 4, and 5, but the bill must be dismissed against him, on account of the conveyance executed of those lots since the filing of the bill. Suppose the case of A, owner of Whiteacre and mortgagee of Blackacre, and he joins in a contract for the sale of both those estates, A. would be compelled to join in the completion of the sale of both estates.

At the close of the argument,

The MASTER OF THE ROLLs observed that as to the defendant Hunter he would dispose of the case at once. As regarded Hunter the bill sought a specific performance of a contract, to which in reality he was no party. It was argued for the plaintiff that the defendant Hunter was under such an obligation, considering the events that had occurred, to perform the contract when

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