1858. July 19, 20, 21. Rolls Court. [ *162 ] SALTER v. BRADSHAW (1). (26 Beav. 161–166; S. C. 28 L. J. Ch. 426; 5 Jur. N. S. 831.) The purchase of a reversion could not formerly stand in equity unless the purchaser showed that he paid the full value for it. The sale of a reversion set aside after forty years, the vendor having instituted proceedings for that purpose a year after it fell into possession, and the purchaser having failed to prove that he had paid full value for it. IN 1795, and prior to the marriage between James Salter and Elizabeth Busby, articles were executed, whereby it was covenanted that some real estate at Bethnal Green belonging to Mrs. Salter should be settled on Mr. and Mrs. Salter for their lives, and afterwards, "to be equally divided between the issue of the intended marriage (if any), share and share alike, and in case there should be no such issue, then as therein mentioned. The marriage took place in 1795. In 1796, a settlement was executed, whereby the property was limited to the use of James Salter for life, with remainder to Mrs. Salter for life, with remainder to the use of the child, if only one, and if more than one, then of all the children of James Salter on the body of Elizabeth King Salter, his wife, lawfully to be begotten, to be equally divided between them, if more than one, as tenants in common in tail, with cross-remainders between them in tail, and on failure of the issue of all such children, to the use of the survivor of *James Salter and Elizabeth King, his wife, in fee simple. There was issue of the marriage one child only, viz., the plaintiff, the Reverend Henry George Salter, who attained twenty-one in 1817. He was then absolutely entitled in fee or in tail to the property, subject to the life interest in possession of his father James Salter (who was then aged fifty-four years), and to the life interest in remainder of Elizabeth King Salter (who was then aged forty-seven years) therein, and (as the defendants alleged, but the plaintiff did not admit) subject to the contingency of there being one or more other child or chil dren born of the said marriage of James Salter and Elizabeth King Salter, his wife. In 1818, the plaintiff, being in want of money, sold his reversionary interest in the property to Mr. Bradshaw for 1,2001., and conveyed it by indentures of the 21st and 22nd of February, 1818, and by a fine to the purchaser, and he covenanted to suffer a recovery in order to bar the entail. (1) Although this decision is now obsolete law under 31 Vict. c. 4 (as to which see the notes in 11 R. R. p. 9 and 95 R. R. p. 13), yet as an illustration of the extreme length to which courts of equity formerly extended their interference with sales of reversions, it may be useful to retain this report here.-O. A. S. The plaintiff's mother died in 1839, and his father in 1855, and the plaintiff's estate then fell into possession. 1856, the plaintiff instituted the first suit against the representatives of Bradshaw, who was dead, claiming two charges on the estate of 3331. and 4361., which he derived from his father in 1847, and also seeking to set aside the purchase of the reversion in 1818, on the ground of its being a sale by him of a reversionary interest, at an under-value, while in difficulties. 1. The bill prayed, that the indentures of the 20th and 21st days of February, 1818, and the fine, might be declared to con stitute and stand as a security only *for the amount actually advanced by Bradshaw to the plaintiff, with interest thereon. 2. Or if this Court should be of opinion that the indentures of the 20th and 21st days of February, 1818, and the fine, operated as an effectual and absolute conveyance, from which the plaintiff was not entitled to be relieved, then that an account. might be taken of the two charges, and that the said defendants might be decreed to pay the plaintiff what should appear due thereon, and in default, might be foreclosed. The representatives of Bradshaw instituted the cross-suit against Mr. Salter, for the performance of his covenant to bar the entail, by a disposition under the Fines and Recovery Act, and for a conveyance of the property to them. Evidence was entered into by the defendants as to the value of the reversion at the time of the sale, but it is only necessary to state, that, in the result, the Court was not satisfied that the full value had been given. Mr. Selwyn and Mr. W. H. Terrell for the plaintiff, Mr. Salter. Mr. R. Palmer, Mr. Follett and Mr. Sheffield, for the defendants. Edwards v. Burt (1), Bowes v. Heaps (2) [and other cases were cited, as to the principles on which the Court formerly acted on setting aside purchases of reversions for inadequate value only]. The argument turned principally on the value of the reversion at the time of the sale, and on the reduction on the calculated value, in consequence of the doubt whether the plaintiff was, under the articles and settlement tenant in tail or in fee, and the chance of other issue of the plaintiff's parents being born who would have shared with him, and the effect of lapse of time (3). (1) 95 R. R. 10 (2 D. M. & G. 55). (2) 13 R. R. 162 (3 V. & B. 117). (3) See Gowland v. De Faria, 17 Ves. p. 27, which was compromised by Gowland giving to De Faria a mort- [*163 ] 164 SALTER The MASTER OF THE ROLLS said, his impression was, that this BRADSHAW. purchase could not stand, that there was a question, whether the plaintiff was tenant in fee or in tail; but still it was the duty of the defendants to show that full value had been given. July 21. [ *165 ] THE MASTER OF THE ROLLS: After reading the papers in this case, I have come to the same conclusion as that which I expressed yesterday. Modern decisions have established this: that the burden of establishing that a full price has been given for a reversion lies upon the purchaser, and, in order to maintain the validity of such a transaction, it is essential that he should preserve abundant evidence that, at the time he purchased the reversion, it was of the value, and of no greater value, than that which he gave for it. In the present case, the purchaser has not only preserved no such evidence, but he has made it impossible that any such evidence should be obtained. It is out of the question to suppose that the Court can arrive at any *satisfactory conclusion from speculative opinions as to the probable value of the property at the time of the sale, derived from its value nine. years previous (1), or from its value at the present time. It is, as I have already observed, a perfectly bonâ fide case, but it is one in which the purchaser has not thought fit to preserve any evidence of its value when he bought it, nor in fact did he ascertain, at the time, what was its value, for that is very clearly shown; and it is this circumstance, now, when it has fallen in, which has made it impossible to ascertain what the value was. I think, also, the time cannot be reckoned as a bar to the plaintiff's demand, although I feel strongly disposed to give the purchaser every advantage that can be derived from the great length of time which has elapsed since the transaction took place, namely forty years; but the reversion did not fall into possession until three years ago, and the bill was filed a year after. If it had been shown to me that pains had been taken to ascertain the value at the time, that a person had been employed to value it, but that, by reason of death or other circumstances, the evidence could not now be procured, it would have been a matter of great importance, but it is proved to me that the value was not ascertained, and the result is, the transaction must be set aside. Declare the purchase ought to be set aside, and that the conveyance ought to stand as a security for what may be found due to the defendants. Take an account of the 1,2001. and sums expended for lasting (1) On a partition, in 1818, the property was valued at 7,6037. repairs and interest at five per cent. on the *1,2001. and an SALTER account of the rents received by the defendants, and direct a BRADSHAW. reconveyance, on payment of the balance. No costs up to and including the hearing. NOTE. The suits were compromised, upon payment to the plaintiff of 11,000l. (30th July, 1859). The present rental, which had greatly increased, from accidental circumstances, was said to be 9281. 5s. a year. KING . CLEAVELAND. (26 Beav. 166-169.) [Affirmed on appeal, as reported in 4 De G. & J. 477.] CARNOCHAN . THE NORWICH AND SPALDING RAILWAY COMPANY (1). (26 Beav. 169-171.) An interest in land created subsequently to a statutory notice to treat for the purchase thereof cannot form the subject of a claim for compensation under the Lands Clauses Consolidation Act, 1845. A FARM had been devised to Elizabeth, the wife of Thomas Edward Savage, for life, and after her decease to her children. and their heirs equally. Elizabeth Savage died, leaving nine children, of whom Elizabeth Johnson, as one, was entitled to one-ninth of the property. Thomas Edward Savage remained in possession of the devised property as tenant at will. He had also other adjoining property of his own. The defendants' railway passed through both properties, and Mr. Savage was represented, in the book of reference, as being the owner, or reputed owner, of both these properties. In May, 1855, the Railway Company served notice upon Mr. Savage that certain parts would be required for the railway, and he forwarded his assent thereto. On the 8th of July, 1835, Elizabeth Johnson and her husband mortgaged her ninth of the property to the plaintiff to secure 2001. In March, 1856, the Company were allowed to take possession. of the property required for the construction of the railway, including about half an acre of the devised property. They fenced it off, and in July, 1856, had completed the railway, except as to laying the rails. [166] 1858. Nor. 4. 1858. March 22, 23. In January, 1857, the plaintiff purchased from Mr. and Mrs. Johnson their equity of redemption in their *one-ninth of (1) The same principle applies to interests subsequently created in adjoining lands of the same owner which are injuriously affected by the contemplated works: Mercer v. Liverpool, &c. Rail. Co. [1903] 1 K. B. 652, 72 L. J. Rolls Court. ROMILLY, M.R. [169] [170] CARNOCHAN the property. He then commenced a correspondence with the Company, who asked him to produce his title-deed, and a long correspondence ensued. v. THE NORWICH AND SPALDING RAILWAY [ 171 The plaintiff insisted that Mr. Savage had no authority to act for Mr. and Mrs. Johnson, and he required “his rights as owner of the soil to be respected," and a proper compensation rendered for the trespass committed by the Company. The defendants proposed a valuation by reference and payment, which the plaintiff declined, and ultimately, in July, 1857, the plaintiff filed this bill, insisting that no agreement, instrument or conveyance had been entered into by Mr. and Mrs. Johnson, and that the Company had not taken the usual steps, by notice, to obtain possession under the Acts. Mr. Selwyn and Mr. William Foster for the plaintiff. Mr. R. Palmer and Mr. C. L. Webb for the defendants. Mr. Selwyn, in reply. [Adams v. The London and Blackwall Railway Company (1), Deere v. Guest (2), and other authorities were cited.] THE MASTER OF THE ROLLS: It is obvious that the injunction, which is the only relief asked, cannot be granted. In May, 1855, the Railway Company gave the proper notice to a person in possession, apparently as owner, and at that time, the plaintiff had no interest whatever in the property. The Company were allowed to take possession in March, 1856, and they immediately begun to construct their railway, and completed it in July, 1856, except laying the rails. The plaintiff became purchaser in January, 1857, of the land of which possession had been given, and on which the railway has been constructed. He was, in truth, but the purchaser of an interest in the purchase-money. In this state of things, Deere v. Guest is strictly applicable; this is a much stronger case, for there possession had been obtained from the tenant by circumvention and fraud. Here possession has been given, the railway has been constructed, and it is, therefore, impossible to grant an injunction to restrain that which is complete. I am of opinion, that the plaintiff cannot have the relief he asks, although he may be entitled to some relief under the Act or by ejectment. I will dispose of the costs to-morrow. (1) 86 R. R. 37 (2 Mac. & G. 118). of the tenant. The owner's remedy was by ejectment at law and not by injunction in equity.-O. A. S. |