1865.

LEIGH

V.

LLOYD.

stated to be in consideration of 150l.; but it was made expressly "subject" to the mortgage to the society, "with all benefit of the proviso for redemption, in the mortgage deed thereof."

The Plaintiff filed this bill in 1864, for an injunction to restrain this action, and to obtain a declaration that the Defendants held the legal estate in trust for the Plaintiff. The bill contested the bona fides of the deed of the 2nd of June, 1849, and the payment of the alleged consideration money.

Mr. Southgate and Mr. Marten for the Plaintiff. The Defendants obtained the legal estate in this property, with notice of the society's mortgage, and expressly subject to it; they are, therefore, bound by that mortgage. The engagement to execute a mortgage deed necessarily implies a proper mortgage containing power of sale; Russell v. Plaice (a); Bridges v. Longman (b).

Secondly, the conveyance to the Defendants is fraudulent and void, and the consideration mentioned in it was never paid. The admission or proof of its execution by Wood is not sufficient; the attesting witnesses ought to have been called in order to give the Plaintiff, who contests the deed and is no party to it, the opportunity of cross-examining them.

Mr. Selwyn and Mr. G. L. Russell for the Defendants. The Defendants took subject to the "mortgage deed;" but none had then been executed; there was nothing, at that time beyond the memorandum. The Defendants, therefore took subject only to the rights given to the Plaintiff

(a) 18 Beav. 21.

(b) 24 Beav. 27.

Plaintiff by the memorandum, and that does not warrant the introduction of a power of sale into the mortgage. The remedy of an equitable mortgagee is foreclosure, and not sale; Moore v. Perry (a); Underwood v. Joyce (b); except under the statute 15 & 16 Vict. c. 86, s. 48; and see Cox v. Toole (c).

Again, none of the advances were made by the society prior to the deed of the 2nd of June, and the liability of Wood, at that time, could only be for the first instalment of 50%. The execution of that deed by Wood is admitted, and no further proof of it is necessary.

The MASTER of the ROLLS (after stating the facts of the case):

The Defendants purchased this property, and took a conveyance of it expressly subject to the mortgage, which very properly contains a power of sale. Is it possible to cut that power of sale out of the deed, and say that there has not been a valid sale under it? I think not.

The society have advanced their money without any notice of the conveyance to the Defendants, and on the belief that the property was unincumbered. It follows, therefore, that the Defendants take subject to the mortgage, and that they are necessarily trustees for the mortgagees, and for the Plaintiff who claims under them.

As to the proof of the deed, when the execution of a deed and of the payment of the consideration money is contested by a third party, it is impossible, upon the admission of the execution of the deed and proof of the signature of the receipt, to dispense with the usual proof

1865.

LEIGH

v.

LLOYD.

1865.

LEIGH

V.

LLOYD.

proof by the attesting witness. If the execution of a deed is disputed, you must prove it by the attesting witness in order to give to the opposite party the opportunity of cross-examining him.

I assume that the deed of the 2nd of June, 1849, is a valid deed as between the parties thereto. I decide nothing as to that, but I say, that the conveyance of the legal estate to the Defendants, if attempted to be used against the building society, was fraudulent and void, and that the Defendants to whom Wood conveyed the legal estate are trustees of it for the society and those claiming under them, and are bound to convey it to them.

I will make a declaration to that effect with costs.

NOTE.-Affirmed by Lord Cranworth, L.C., 25th July, 1865 (34 L. J., Chanc. 646).

1866. Apr. 25.

A person vo THE

luntarily gave

ARTHUR v. CLARKSON.

HE testator made several wills, by which he gave 1007. to his natural daughter Jane absolutely, and note to trustees 1,000l. to his natural daughter Hannah and her children.

his promissory

for his natural

child, and deposited with

them the title

deeds for the

On the 29th of December, 1862, the testator gave his

promissory note for 1,000l., payable to two friends, in purpose of trust for Hannah and her children, and his promissory carrying into effect his inten- note, to the same persons, for 100l., in trust for Jane. tion as to the He afterwards made another will, by which he gave promissory note:-Held, nothing to his daughters, and stated, that he had, by promissory notes of even date, "made payable to his two trustees," provided for Hannah and Jane.

that a valid

trust had been created.

The

1866.

ARTHUR

บ.

The promissory notes were delivered to the trustees, together with a box containing the testator's title deed, for the purpose of carrying into effect his intention with respect to the promissory notes. They remained in the CLARKSON. trustees' possession down to the testator's death in May, 1864.

This suit was instituted by the legal personal representatives to have the rights of the parties declared.

Mr. Baggallay and Mr. C. Hall for the Plaintiffs. The trustees cannot recover on the promissory notes at law, for want of consideration, and therefore an effectual trust has not been created. The deeds, if delivered over for the purposes alleged, can only stand as a security for what is recoverable by virtue of the promissory notes.

Mr. Jessel for Hannah and her child, Mr. Williamson for the trustees, and Mr. Rowcliffe for Jane, argued that there was a perfect trust created by the deposit of the deeds for the amount of the promissory notes.

They cited Lloyd v. Chume (a); Dawson v. Kearton (b); Burkitts v. Ransom (c).

The MASTER of the ROLLS.

The promissory notes were given to secure the two sums, and the deeds were deposited in trust to secure the amount. There is evidence of that, and there is no getting over it.

If a man gave the title deeds of his estate to A. B.,

(a) 2 Giff. 441.

(b) 3 Sm. & Giff. 186.

(c) 2 Coll. 395.

and

1866.

and said, "keep them as a security for 1,000l. for my brother," and gave his promissory notes at the same time for that amount, it would be a valid trust, which CLARKSON. Could not be defeated.

ARTHUR

บ.

I must direct payment of the 1,000l. and 1007. with interest, if assets of the testator be admitted.

Apr. 26. A decree for specific performance was made against

a purchaser in

THIS

CLARK v. WALLIS.

HIS was a suit, instituted by a vendor against the purchaser in possession, for the specific performance of the contract. The decree was made on the

possession, but 20th of December, 1865, with costs, and the Chief he was unable Clerk had reported in favor of the title.

to complete

the purchase.

The Court

rescinded the

contract and ordered the purchaser to

pay to the ven-
dor the rents
received by
him, together
with the costs
of suit and

those occa-
sioned by
the non-com-
pletion of the
purchase.

The purchaser was unable to pay the purchase-money and complete the contract.

Mr. Jones Bateman now moved to rescind contract.

the

He cited Sweet v. Meredith (a); and see Foligno Martin (b); Simpson v. Terry (c).

The MASTER of the ROLLS.

All I can do is this:

-I will order the contract to be rescinded and the Defendant to deliver up possession of the estate to the Plaintiff. Then take an account of

the rents received by the Defendant, and tax
Plaintiff's costs occasioned by the non-completion

the

of

the