ORR v. DICKINSON. [ 15 ] executed; and, consequently, that the registration of what was an invalid bill of sale was irregular in every sense of the word; and the twelfth rule provides, that "if no sale is made in conformity with the certificate of sale," the certificate shall be delivered up and cancelled. In this particular case, indeed, the plaintiff had revoked the power he had given by the certificate of sale, the revocation' had been transmitted to Prince Edward's Island, recorded there, and returned to Liverpool, and it was in the hands of the registrar of the port of Liverpool before he was called upon to make any registry of this instrument which I have held to be a void bill of sale. But, independently of that circumstance, the registry having been made simply in pursuance of that which was no bill of sale at all but a mere nullity, I must hold that the defendant Dickinson has never acquired even at law any title to the ship; and, without coming to any decision upon' the very difficult question of the jurisdiction of this Court to disturb a title acquired at law by the registration of a valid bill of sale, I hold that the plaintiff is entitled to the relief he has asked at the Bar. 1859. Jan. 29. IN RE THE MARQUIS OF BUTE'S WILL. Under the 10th section of the Trustee Act, 1850, the Court could make an order vesting lands in a new trustee jointly with continuing trustees. [See the note to Smith v. Smith, 106 R. R. 289, where the same question arose.] 1858. Nov. 12, 13. WOOD, V.-C. [18] WALROND v. WALROND. (Johnson, 18-28; S. C. 28 L. J. Ch. 97; 4 Jur. N. S. 1099; 7 W. R. 33.) A husband, upon a treaty for separation from his wife, agreed with a trustee to pay his wife an annuity for her separate use, and also, during their separation, to permit their daughter, then an infant, but now of age, to reside with, and be under the control of, and educated and supported by, her mother; in consideration whereof the wife (who was entitled under her marriage settlement to property settled to her separate use without power of anticipation) agreed with the same trustee to indemnify her husband in respect of any debt on her own account or on account of their daughter. The trustee declining to enforce payment of arrears of the last-mentioned annuity, or to act any longer as trustee Held, first, that this was a voluntary agreement on the part of the husband, no consideration moving from the trustee by way of indemnity or otherwise, and the wife having no power to contract so as to bind property as to which, though settled to her separate use, she was restrained from anticipation. Secondly, that, the agreement being voluntary on the part of the husband, the Court could not decree specific performance of it by him, or order him to account in respect of arrears; nor could it appoint a new trustee in the only mode in which a trustee could be effectually, appointed, viz. by ordering the husband to enter into a new covenant WALROND with the new trustee. Thirdly, that in the absence of any collusion between the husband and the trustee to enable the former to avoid payment of the annuity, the Court could not direct that the wife should be at liberty to sue in the name of her trustee upon giving him a proper indemnity. Besides, the stipulation relative to the daughter being contrary to the policy of the law (1), semble-no action on the agreement would lie ; and the circumstance of the daughter's having since attained twentyone would not affect the question. THE bill was filed by Lady Janet Walrond, the wife of the defendant Bethell Walrond, but now living separate and apart from him, by the Earl of Rosslyn, her next friend, against the said Bethell Walrond and George Capron as defendants. It stated, that, before the plaintiff's marriage with the defendant, a settlement was executed, whereby, in consideration of the marriage and of the plaintiff's fortune being 10,000l., 400l. per annum was secured to be paid during their joint lives to the plaintiff or her appointees without power of anticipation, and in default of appointment, to the plaintiff for her sole and separate use. Then, after stating that the marriage was solemnised in November, 1829, and that there was issue of the marriage a daughter, Harriott Walrond, who had attained twenty-one, and a son still an infant-the bill set out certain articles of agreement under seal, entered into on the 2nd of *May, 1850, between the defendant Walrond of the first part, the plaintiff of the second part, and the defendant Capron of the third part; whereby, after reciting that Walrond and the plaintiff had agreed to live separate and apart from one another, and that, upon the treaty for their separation, it was contracted between the parties that the defendant and the plaintiff should enter into such agreements as thereinafter contained, it was witnessed, that, in pursuance of the said agreement and in consideration of the agreements and promises on the part of the plaintiff thereinafter contained, Walrond, for himself and his executors and administrators, promised and agreed with Capron, his executors and administrators, yearly and every year, during the joint lives of himself and of the plaintiff, to pay to the plaintiff, or as she should appoint, one annuity of 250l. for her sole and separate use without power of anticipation, the same to be in addition to her annuity under her marriage settlement, and her receipts to be good discharges: And further, that he would from time to time, and at all times during the separation, permit and suffer the said Harriott Walrond to reside with her mother, the plaintiff, and would permit and suffer the plaintiff to have the care, (1) See now the Custody of Infants Act, 1873, which overrules this objection. -0. A. S. WALROND. [19] WALROND v. WALROND. [ 20 ] [ *21 ] control, management, education, residence, and support of the said Harriott: And it was thereby further witnessed, that, in pursuance of the recited agreement, and in consideration of the premises, the plaintiff did thereby for herself, her executors and administrators, promise and agree to and with Capron, his executors and administrators, that, so long as the annuity of 2501. should continue to be duly and regularly paid, in pursuance of the agreement or promise for that purpose on the part of Walrond, and so long as Walrond, in pursuance of the further agreement and promise on his part, should permit and suffer the said Harriott to reside with and be under the care, control, and management of the *plaintiff, she the plaintiff would maintain, provide for, educate, and bring up the said Harriott, without making any demand or request of Walrond for any further allowance as or for the maintenance or education of the said Harriott; and lastly, that, so long as Walrond should continue to pay the said annuity, as agreed, the plaintiff would not permit him to be called upon, or sued, or prosecuted by any person in any court of law or equity, for or in respect of any debt she might contract, either on her own account or on account of the said Harriott, or on any account or pretence whatever, but would pay and discharge all such debts out of her own moneys. The bill then stated, that, ever since the execution of the articles of agreement and in accordance therewith, the plaintiff and her husband had lived separate and apart, and the daughter had resided entirely with the plaintiff, and had been entirely maintained and educated at the plaintiff's costs and charges, and that the plaintiff in all other respects had performed her part of the agreement; that Walrond had from time to time, with the knowledge and consent of the defendant Capron as trustee of the articles of agreement, paid to the plaintiff's account with her bankers various sums of money in part payment of the annuity of 250l., but the amount so paid had been insufficient to satisfy the annuity, and there was a large arrear due to the plaintiff in respect thereof. The bill charged, that the plaintiff had frequently applied to and requested Capron to enforce from Walrond the payment justly due from him in respect of the arrears, but Capron had neglected or declined to take any steps for obtaining payment of the said arrears. It also charged, that the defendant Capron had acted in the trusts of the articles, but now declined further to act as the trustee *thereof; and that he alleged that some other person ought to be appointed a trustee thereof. The bill prayed-(1), That the defendant Walrond might be decreed specifically to perform the said articles of agreement, according to the purport and effect thereof. (2) An account of what was due to the plaintiff in respect of the annuity of 250l. ; and that Walrond might be decreed to pay the amount found due upon taking such account to Capron, or to some other trustee to be appointed in his stead, to be by him applied upon the trusts in the articles contained for the plaintiff's benefit. (3) That, if necessary, a new trustee of the articles might be appointed instead of Capron; and for further relief. The defendant Waldron demurred generally for want of equity. Mr. Rolt, Q.C., and Mr. Jolliffe, for the demurrer, contended, that the agreement was one upon which this Court could not give any of the relief prayed by the bill; for not only was it a voluntary agreement on the part of the husband, the wife having no separate estate in respect of which she was capable of contracting, but the stipulations relative to the daughter were contrary to the policy of the law: Vansittart v. Vansittart (1). Mr. Bristowe, in support of the bill, contended, that the stipulations relative to the daughter did not invalidate the deed, or prevent the Court from decreeing it to be specifically performed. If the daughter was under age when the agreement was. entered into, she was so no longer, and, up to this time, the stipulations respecting her had been performed. [He cited Vansittart v. Vansittart (2).] It was an error to describe the deed as a voluntary instrument. The plaintiff, under her marriage settlement, was entitled to 4001. a year to her separate use, and might afterwards acquire other separate property; and in respect of separate property, she was competent to contract with her husband. Besides, in this case, the covenants on both sides were entered into with a trustee, and although the trustee had not executed the deed, he had accepted the trust. [He claimed an order as in Seagrave v. Seagrave (3)]. THE VICE-CHANCELLOR (to Mr. Rolt): I have no doubt that this is, as regards the husband, a voluntary agreement, and nothing more. Therefore, no part of the specific relief prayed by the bill can be granted. The only question is, whether, under the prayer for general relief, the plaintiff would not be entitled at the hearing, assuming the averments in the bill to be true, to such an order as was granted' in Seagrave v. Seagrave: the trustee refusing to sue, whether she should not have liberty to sue in his name. (1) 116 R. R. 263 (4 K. & J. 62). De G. & J. 249, 255). (3) 9 R. R. 203 (13 Ves. 439), WALROND t. WALROND. [ 22 ] [ 23 ] WALROND v. WALROND. [ *24 ] [ *25 ] Mr. Rolt, Q.C., in reply, [referred to Vansittart v. Vansittart (1), Frampton v. Frampton (2), Bateman v. The Countess of Ross (3), Wilson v. Wilson (4), Ward v. Audland (5), and other cases were cited]. Judgment reserved. VICE-CHANCELLOR SIR W. PAGE WOOD: Two questions are raised by this demurrer. First, *whether the Court can grant the relief specifically prayed by the bill; and if not, then, secondly, whether any relief can be granted under the prayer for general relief. As regards the first question, I had no hesitation, before hearing the reply, in determining that no portion of the relief specifically prayed by the bill could be granted. In the first place, the agreement on the part of the husband is a voluntary agreement. It is true, a trustee is named and made a party to the deed, but there is no consideration moving from the trustee by way of covenant for indemnity or otherwise. The only alleged consideration is the agreement on the part of the wife. Now, irrespective of other objections to that agreement, which I shall notice subsequently, it is manifest, that, the plaintiff being a married woman, an agreement by her was entirely inoperative; and although, under the settlement made previously to her marriage, she was entitled to 400l. a year for her separate use, that amount was settled upon her without power of anticipation; and a married woman has no power to contract so as to bind property of that description. The suggestion that the plaintiff might afterwards acquire separate property is one which would apply to every married woman. And lastly, there is no appearance of any such consideration as that which existed in Vansittart v. Vansittart (1), namely, a right of suit in the Ecclesiastical Court abandoned. Here there is nothing in respect of which the plaintiff, as a married woman, could contract; the deed, therefore, is simply voluntary. What relief then can the plaintiff have under a voluntary deed of this description? If property be vested in a *trustee, the Court will act against the trustee, by compelling him to perform the trusts upon which it is so vested, notwithstanding the deed is voluntary; but the Court can do nothing against the author of the trust, by compelling him to complete a voluntary engagement on his part. in the trustee; there is the part of the husband (1) 116 R. R. 263 (4 K. & J. 62). (2) 55 R. R. 79 (4 Beav. 287). (3) 14 R. R. 55 (1 Dow. 235), And here there is nothing vested merely a voluntary engagement on entered into with the trustee (4) On jappeal, 73 R. R. 158 (1 II. L. C. 538, 558). (5) 68 R. R. 65 (8 Beav. 201). |