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The effect of this deed is simply this:-The recital states that it is agreed, that the wife's future property shall be settled, and the husband alone covenants to settle it. I do not know on what principle I can control the operative part of a deed by the recital, and extend it if I cannot restrict it. Here, in order to bind the Petitioner, I must strike out the covenant of the husband, and introduce one of the husband and wife.

I am of opinion, that this would be unwarranted by any authority.

In Butcher v. Butcher (a), the agreement between the parties was contained in the operative part of the deed, and I was of opinion, that it was part of the operative part of the deed, and constituted a covenant by all parties. Here I find nothing in the operative part but the husband's covenant that he will settle. The useful office of a recital is to explain any ambiguity in the operative part, as in the case of Moore v. Magrath (b) in regard to the parcels. But it would be a very different thing to introduce a covenant by another person.

The case of Hollis v. Carr (c) is very distinct. There was a recital of an intention to levy a fine, and the covenants declared the uses of the fine to be to secure a sum of money on the property. The deed would have been inoperative without the fine, and when you agree to do an act, it implies a covenant to do all which is necessary to perfect it.

I am of opinion, the Petitioner is entitled to an order for the transfer to her of the fund.

(a) 14 Beav. 222.

(b) Cowper, 9.

(c) 2 Freem. (C. C.) 3, and 3 Swan. 638.

1865.

YOUNG

v.

SMITH.

1865.

Dec. 9. Husband and wife mortgaged the

wife's reversionary interest in a fund. Afterwards,

and before the

reversion fell into possession, the wife

MR.

In re INSOLE.

R. INSOLE died in 1831, having bequeathed one-sixth of his personal estate to Thomas Insole for life, with remainder to his children.

In 1850, Eliza (one of the six children of Thomas Insole) married Alfred Puckle, and in 1854, Mr. and Mrs. Puckle executed a mortgage to the Consolidated obtained a de- Investment and Assurance Company for 125l. and incree for judicial separation. terest, and they afterwards executed a second mortgage to Mr. Barker.

Upon the reversion afterwards falling

in, in the husband's life

time:-Held,

that the mortgage did not affect it, and that the fund belonged ab

In 1863, Mrs. Puckle obtained a decree for judicial separation from her husband.

In 1865, Thomas Insole, the tenant for life, died, and the trustees paid Mrs. Puckle's share (4271.) solutely to the into Court. wife.

This was a petition by Mrs. Puckle and of the persons to whom, in 1864, she had mortgaged her interest, praying payment to them of the fund according to their interests.

Mr. Bagshawe in support of the petition. The Petitioners are entitled to the fund discharged of the mortgages executed prior to the judicial separation and of all claim of Mr. Puckle The mortgages which were executed by Mr. and Mrs. Puckle affected only the husband's interest, and in no respect bound Mrs. Puckle, and the interest of the husband determined by the decree of judicial separation. By the 20 & 21 Vict.

c. 85, s. 25 (1857), Mrs. Puckle, from the date of the sentence and while it continues, is to be considered as a feme sole with respect to property which she may acquire or which may come to or devolve upon her. And by the 21 & 22 Vict. c. 108, property of or to which the wife was possessed or entitled for an estate in remainder or reversion, at the date of the decree of judicial separation, is included in the protection given by that decree.

Mr. Schomberg and Mr. Speed for the company and for Mr. Barker. The statutes of 1857 and 1858 cannot alter the antecedent rights under the mortgage of 1854. The mortgage by the husband and wife, no doubt, gave only a defeasible title, that is, the mortgagee took subject to the chance of the husband surviving the period of the reversion falling into possession. Subject to that condition and to the right to a settlement, the husband and his mortgagees took an absolute interest in the fund. Mrs. Puckle is entitled to a settlement of the fund, as in Re Whittingham's Trust, but that will give her a life interest only. The first act merely applies to property which might devolve on the wife after the decree, and the second, though extending to reversions, means subject to the existing charges and mortgages prior to the act. The mortgages of the wife alone cannot prevail against the prior ones of herself and husband.

1865.

In re

INSOLE.

The MASTER of the ROLLS.

I am of opinion, that the Petitioners are entitled to the order which they ask. In fact, the only effect of a mortgage of the reversionary interest of a married woman by the husband, though the wife joins in it, is, to mortgage the interest of the husband alone, and nothing

more.

1865.

In re INSOLE.

more.

A person who makes advances on such a security runs the risk that, at or before the time of payment arrives, the husband will have been able to acquire the charged property. The clause of the 20 & 21 Vict. c. 108, disposes of the right of the husband; for the moment the judicial separation takes place, the right of the husband is gone as if he were dead. The first act applies to "property of every description, which she may acquire, or which may come to or devolve upon her." The second act includes reversions to which the wife was entitled at the date of the decree, and this was a reversion which came to her after the separation. The husband mortgages a legacy which was payable to her after the death of her father; but if the husband had died previously to that period, the mortgage would have been worth nothing.

The first act says, that "property of every description" may be disposed of by her, in all respects, as a feme sole; she may sell, mortgage or squander it; then why am I to cut down the words and say she can only dispose of a life interest in it. The clause goes on to say, that on her decease it shall "go as if her husband had been then dead." Therefore, as soon as the judicial separation takes place, she may deal with her property in all respects as a feme sole; she may assign or leave it to whomsoever she pleases, and if she dies intestate, her husband is excluded, subject to what may happen in case she should return to live with her husband.

The Respondents are not entitled to costs out of the fund.

1865.

ΟΝ

MONTEFIORE v. BEHRENS.

her

Dec. 7.

woman became entitled to a legacy. Her husband

her children, reserving to himself a life

estate, determinable on his bankruptcy, &c.:-Held, that the limitation was valid. Property was settled on

N the marriage of Mr. and Mrs. Behrens in 1843, A married a sum of 10,000l. Consols, which belonged to Mrs. Behrens, was settled on her for life, and after death to pay the dividends to Mr. Behrens "until settled it on Sampson Lucas Behrens should, at any time, assign, her and transfer or in any manner part with the same dividends and annual produce, or any part or parts thereof, or should execute any assignment or other assurance, contract, act, matter or thing whatsoever, by means whereof the same should be aliened or incumbered, either at law or in equity, or until Sampson Lucas Behrens should assign, transfer, or in any manner part with the same, or any part or parts thereof, or should execute any assignment or other assurance, contract, act, matter or thing whatsoever, by means whereof the same should be aliened or incumbered, either at law or in equity, or until (if it should so happen) Sampson Lucas Behrens should be declared a bankrupt, or take the benefit of any act or acts of parliament for the relief of insolvent debtors, or the said dividends and annual produce or the beneficial interest, intended for Sampson Lucas

A. B. until &c. or until, bankruptcy, by any act or default of A. B.

or by any other ways, it should

become vested

in or the property of any other person. A creditor of 4. B. obtained

1

A.

a judgment
against him
and a charge,
under the
& 2 Vict.

c. 110, s. 14,
on the fund:
-Held, that

A. B.'s inte

Behrens under the trust thereinafter contained of and
in the said moiety of 10,6007. £3 per Cent. Consolidated
Annuities, or any part thereof, respectively, should other-
wise, by the act or default of Sampson Lucas Behrens, or
by operation of law without his act or default, or by any
other ways or means, become vested in or the property rest had
of any other person or persons whomsoever; and from
and after the determination of the trust declared for the
benefit of Sampson Lucas Behrens, on certain trusts for
the children of the marriage.

thereby determined.

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