1866. HENDERSON v. ELLIS. Argument. Judgment. affidavit, and upon affidavits shewing the value of the Plaintiff's interest to be that stated in the bill. Mr. A'Beckett, for the Plaintiff, desired to waive the partnership accounts, and asked for a decree for payment of the £32 balance admitted to be due, and of the sum of £500, the difference between the price at which her interest was sold and its value as alleged in the bill, and deposed to by the affidavits, and of the costs of suit. The Court might, under the Supreme Court Rules, cap. vi., sec. 12, make "such decree as the justice of the case might require," and the Plaintiff was entitled to waive part of the relief which she sought. 66 MR. JUSTICE MOLESWORTH.-When a Defendant admits the statements of a bill by leaving the suit undefended, his admission can only be held conclusive for the purpose of granting the relief specifically prayed; and I do not think the Plaintiff is entitled at the hearing, to a different decree to that asked by the prayer. In the present case a reference to the Master will be required to ascertain the value of the Plaintiff's interest in the ship. If she waive the partnership account, she cannot now ask for a decree as to the £32. Subject to her electing to waive the accounts altogether, the decree will be as follows :— "Declare the sale fraudulent as between the Plaintiff and Defendant. "Refer it to the Master to ascertain the difference between the price at "sale and actual value, and to take the accounts of the partnership. "Reserve further directions and costs." VOCKENSOHN v. ZEVEN. 1866. April 28. A SUIT for specific performance of an agreement to A purchaser with distinct sell the equity of redemption in property subject to a notice of the legal mortgage. The Plaintiff alleged that the Defendant Zeven entered into a written contract for the sale of a public-house, for the sum of £160, the contract being dated 12th October, 1865, and signed by Zeven's agent. That Zeven subsequently repudiated the contract, and on the 25th of October sold the property, the subject of it, to Mrs. Mooney (who, with her husband, was made a Defendant), and that Mr. and Mrs. Mooney had notice of the Plaintiff's purchase. Zeven, by his answer, denied that the agent had authority to contract; and Mr. and Mrs. Mooney, by their answer, denied notice. On the points of agency and notice there was a conflict of evidence. It appeared that the sale to Mrs. Mooney had been completed by conveyance dated and registered 28th October, 1865, and that the Plaintiff's contract had never been registered. title of a prior purchaser cannot in equity gain priority by registration. Specific per formance of an agreement decreed against the vendor and a purchaser with notice of the agree ment, although the purchaser had obtained and registered her conveyance and the plaintiff's agreement was unregistered. Mr. Holroyd for the Plaintiff.-The agent's authority Argument. has been clearly proved, and was not revoked until after the sale. Zeven's acts also amounted to a ratification of the contract. The principal question is as to notice, and Mrs. Mooney had express notice from the Plaintiff and others before entering into the contract. She is the substantial Defendant, and was acting as principal in respect of her separate estate. If not buying in her own right, she must be taken to have acted as her husband's agent in the matter, and notice to his agent will bind him. 1866. v. ZEVEN. Argument. Section 194 of the "Real Property Statute" does not touch VOCKENSOHN the present case. Mrs. Mooney knowing the Plaintiff's claim, and registering to defeat it, the registration is fraudulent, and therefore inefficacious. Registration under the English Act would be ineffectual under similar circumstances. Le Neve v. Le Neve (m). The words conferring priority under our Act are not so strong as those of the English Act, and the English confers a more qualified priority than the Irish Act. Drew v. Earl of Norbury (n), Eyre v. Dolphin (o). Mr. J. W. Stephen and Mr. Lawes for the Defendants Mr. and Mrs. Mooney.-The evidence clearly shews that the authority of Arnold, the person employed to sell by auction, was determined before the sale by private contract. Although registration may not give precedence to a title acquired in land after express notice of the claim of another, yet the priority obtained by registration can at least be used to determine between conflicting claims, where the evidence is doubtful. Although Zeven repudiated the contract with the Plaintiff three days after it had been entered into, the Plaintiff omitted to register. This omission was laches facilitating fraud. There is no proof of notice to Mrs. Mooney. Vague rumors do not amount to notice. Notice to be effectual must proceed from a person interested in the property. Sugden's Vendors, 14th edit., p. 755; Barnhart v. Greenshields (p). We admit that registration would have been of no avail, if express notice had been distinctly proved. Jollond v. Stainbridge (g), Wyatt v. Barwell (r). MR. JUSTICE MOLESWORTH : This is a suit by the Plaintiff for specific performance of an agreement made by Mr. Arnold, auctioneer and land agent, on behalf of Mr. Zeven, to sell a public-house at Epping for £160 to him. Zeven subsequently (25th October, 1865) entered into an agreement to sell, and 28th October conveyed the same premises to Mr. and Mrs. Mooney for £180, by registered deed. This purchase was really made by Mrs. Mooney with some money which her husband allowed her to treat as her own, and she was the real actor in the affair. The first question to be considered is the authority of Arnold to execute the agreement, which he did on the 12th of October, 1865. Zeven went, accompanied by a friend of his, Mr. Ryan, to Arnold's, on the 27th of September, and signed a written authority for Arnold to sell by auction or private contract within two months, without reserve; if sold, for full commission; if withdrawn, Arnold to have half commission. The day of auction was fixed, 4th October. There is some not material discrepancy between Zeven and Arnold as to this conversation and the written agreement, attributable probably to mistake. So far as affecting credit, Arnold is corroborated by Ryan and his own clerk, Sell. This was an authority which Zeven had a right to revoke, and thereby subject himself to half commission. The sale by auction was attempted 4th October. A real bid was made for £145 for the house, and it was bid up to £185, and knocked down to a drunken man, who was unable to pay a deposit or give security, so that the sale was ineffectual. It appears that an auction was afterwards tried, and Arnold stated that any one might have it for £160; and, after a delay, the Plaintiff, Mr. Vockensohn, and two others, offered that sum, but Arnold said that, as there was a competition, he must get the benefit of it for the seller, and gave his cards to all the offerers, stating that he 1866. VOCKENSOHN v. ZEVEN. May 3. Judgment. 1866. VOCKENSOHN v. ZEVEN. Judgment. would deal with them at his Melbourne office. Zeven was drunk on the occasion, and it does not appear distinctly that he heard this. Zeven appears to have said at some time on the day in question that the property should not go under £180; and Mrs. Zeven also appears to have stated to Arnold her reluctance to a sale under that price; and I believe, according to her evidence, that Arnold sought to induce her to allow his acceptance of less, ineffectually. rest. The evidence which, after a balance, decides me in saying that Zeven did not revoke Arnold's authority to sell without reserve before his departure, is his own, when he says that he went to Arnold's office on the 8th or 9th of October, to stop the sale, but not meeting him, did nothing. Arnold hearing no more from Zeven, and finding no purchaser within a week, being near Epping, met the Plaintiff, and verbally agreed to sell him the house for £160, and the Plaintiff coming to his office the next day, the 12th, signed and completed the written agreement, giving £20 cash, and bills for the balance of the purchase money and inteThe Plaintiff on the 13th saw Zeven, and shewed him his agreement. He says that Zeven at first said "All right," but ultimately said he would not be bound by the agreement. They seem to have been, at all events, in dispute upon the agreement being binding; and the Plaintiff, who had paid his money and given his bills, stated his resolution to hold to his bargain. Zeven was also informed of the sale by Arnold by a letter, at once written, and without previously answering it, called, according to my conclusion upon the evidence, first about 15th October, accompanied by Ryan, and then about 20th October, accompanied by Mr. Knight, upon Arnold, and upon both occasions wanted to get £10, part of the deposit on account of the purchase-money, which Arnold refused until the transaction was completed. Zeven denies that he had more than one interview, denying that on which he was accom. panied by Ryan; but he is contradicted by Arnold and his |