As to the decision of the Court of Appeal in Upperton v. Nickolson (ubi sup.) which was relied upon by His Lordship, it was to the following effect, the judgment of Lord Justice James being concurred in by Lord Justice Mellish: Where a decree is made for specific performance of a contract for sale, and an enquiry is directed in general terms whether the vendor can make a good title, it must be understood to mean a good title having regard to the terms of the contract. But if the vendor wishes to prevent objections which have been waived before the suit from being renewed under the enquiry, that point should be considered at the hearing and noticed in the decree. The decision of Vice-Chancellor Kindersley in Curling v. Austin (ubi sup.) was explained, and his judgment was specifically adopted by Lord Justice James. The learned Vice-Chancellor laid emphasis upon the requirement that whether there has been any waiver was a question to be determined at the hearing. And His Lordship gave it as his opinion that the question whether there was a good title means whether there was a good title according to the contract for sale, the specific performance of which was decreed at the hearing.

The decision of Sir William Grant, M.R., in Ogilvie v. Foljambe (ubi sup.) was that personal information given to a purchaser may be adduced in evidence as a defence, against specific performance of a contract for sale. That this would be so arises from the fact that the right of a good title is given by law and does not grow out of the contract. But a purchaser may waive his right after he has full notice that he is not to expect a good title. Consequently, if a purchaser agrees to accept a limited title, and the negotiations between him and the vendor have proceeded upon that footing, a complete title cannot be demanded by the former. This appears from what was laid down by Vice-Chancellor Malins in McMurray v. Spicer (ubi sup.), and is, of course, an incontrovertible enunciation of the law, as the same is deducible from the earliest authorities upon the subject. Circumstances of the Case.

In order to render more easily intelligible the decision of the House of Lords in McGrory's Case (ubi sup.) now under discussion, it will

doubtless be convenient for the reader to have before him a brief account of the circumstances which gave rise to the question that called for determination. They were 83 follows: The managing director of the plaintiff company entered into a contract on their behalf with the defendant not containing any express provision that a good title should be made-an. "open contract," in short. The defendant having refused to perform that contract and to complete the purchase of the land, which contract the plaintiff company were willing and offered to perform, they claimed specific performance thereof, and brought an action to enforce their claims.

The action came on for trial before the Vice-Chancellor of the County Palatine of Lancaster (Manchester District), when the learned Judge declared that the contract ought to be specifically performed and carried into execution in case a good title could be made to the estates comprised therein, and it was referred to the Registrar to make the following common form enquiries: First, an enquiry whether a good title could be made to the estates comprised in the contract; and in case it should appear that a good title could be made to the estates, secondly, an enquiry when it was first shown that such good title could be made; and further consideration was ordered to be adjourned.

The Registrar in due course certified that in proceeding upon the first enquiry directed by the judgment the defendant raised certain objections to the title of the plaintiff company to the estates, in reply to which the plaintiffs proposed to give evidence that the defendant had knowledge of such objections prior to the date of the contract. The Registrar further certified that the defendant objected to the admissibility of such evidence. His reason for so objecting was that the contract for sale was complete in itself, and was established by the decree for specific performance thereof at the hearing of the action, and could not subsequently be modified or added to by imparting any terms merely arising by implication from earlier knowledge. The Registrar, however, decided that the plaintiff company were entitled to give such evidence.

The objections which the defendant desired to raise to the title of the plaintiff company,

and which the plaintiff company admitted that they were unable to remove, were: First, that the vendors were not owners of the mines and minerals under part of the land; secondly, that a public sewer ran under part of the land; and, thirdly, that there were certain public. rights of way over the land. The second and third defects might, of course seriously interfere with the development of the property, rendering it unmarketable; while the first might be equivalent to an exclusion of the most valuable portion thereof. Accordingly, the defendant applied to the Vice-Chancellor to discharge the certificate of the Registrar. This the learned Judge did, declaring that the plaintiff company were not entitled to give any evidence that the defendant was in possession of knowledge prior to the date of the contract of any defects in the plaintiff company's title to the estates, objections to which were raised by him.

Ratio Decidendi.

The plaintiff company appealed to the Court of Appeal. The learned Judges constituting that Court, as above-mentioned, adopted the view which was entertained by the Registrar, and, consequently, they reversed the decision of the learned Vice-Chancellor. But, as we have already intimated, the conclusion arrived at by the Court of Appeal was not allowed to stand by the House of Lords. On the contrary, the view taken by the ViceChancellor in the Court of first instance met with the entire and unanimous approval of the noble and learned Lords. His view was that when a decree for specific performance directs an enquiry whether the vendor can make a good title to property which he has contracted to sell, that means a good title according to the contract for sale; that in order to ascertain what that contract was, reference must be made to the judgment at the trial of the action, and to that judgment alone so long as unreversed; and that if the vendor wished to prevent the renewal under the enquiry into title of objections known or even apparently waived during negotiations. preliminary to the contract and the judgment defining it, he must establish such waiver at the trial, and take care that the judgment expressly recognises it.

Lord Shaw expressed his view of the ques

tion very clearly and succinctly when he remarked that after the decree for specific performance," the time for modification or alteration of the subject-matter of that decree had gone past." His Lordship went on to say: "If such modification or alteration by reason of alleged waiver or otherwise was desired, as being in accordance with the true intention of the parties to the contract, that issue should have been the subject of contest in the proceedings for specific performance, and the alteration or modification, whether upon subject-matter or upon title, should have appeared on the fact of the decree." The learned Lord added this as the inevitable consequence of the omission to do what was needful at the trial of the action: Otherwise, the decree must stand with all that the law implies-namely, that a good title to the entire subject-matter of the contract shall be given."

In other words, all evidence of the nature which was sought to be adduced in the present case is excluded by the terms of the decree for specific performance of the contract for sale. And if the decree remains unreversed it is too late to endeavour to impart into the contract any new terms. As the result of the trial, the purchaser is entitled to have certain enquiries made. They follow upon the decision which has been obtained in his favour. But, in the course of those enquiries, the vendor is debarred from attempting to prove that which he should not have neglected to establish at the hearing.

even then the authorities ultimately accepted it. The Act does not lay down a form of certificate, only its contents, and in our opinion the shorter form certifies all (and more) that the Act requires to be vouched for. Yours faithfully,

44

SEPAC." September 6th, 1918.

To the Editor of The Conveyancer.

DEAR SIR, I am pleased to observe that you are inserting in The Conveyancer for this month a form of conveyance by tenants in common, in consideration of a yearly rentcharge. I wish to make the following suggestion for your consideration-namely: Would it not be well for the rentcharge to be reserved as follows at the foot of page 565-namely: (1) To the use that the vendors their respective heirs and assigns may henceforward receive in trust for themselves [the vendors] their respective heirs and assigns as tenants in common in equal shares out of the said premises a yearly rentcharge of £, that is, the whole rentcharge. this way, on the death of any one of the vendors the survivors could convey without the concurrence of the representatives of the one who had died. It might be very difficult in some cases, and in any case it would give more trouble and expense for the representatives of the one who died to join in the conveyances. If my suggestion was carried out, the vendors would hold the property as joint tenants in trust for themselves as tenants in common in equal shares.

Yours faithfully,

B. T. WESTWELL.

In

[Is not our correspondent under a misapprehension as to the effect of paragraph (1)? As drawn, each of the parties, A, B, and C, takes his one-third part of the total rentcharge absolutely, and he can, therefore, deal with it at any time quite independently of the others. The suggested alternative would seem to complicate, rather than simplify, the reservation of the rentcharge. -ED.]

To the Editor of The Conveyancer.

46

July 27th, 1918.

DEAR SIR,-The Conveyancer is primarily intended for the use of the Solicitors' profession in England, but perhaps, at your convenience, you might consider a ques tion for the benefit of your Irish subscribers, which I believe will be found of much interest to them—namely, when preparing the wills of country clients, who hold their farms as proprietors under the Irish Land Act, 1903, sec. 54 of which prohibits, as between the Land Commission and the proprietor for the time being, (a) the subdivision, (b) the vesting of the holding in more than one person on a death, and (c) the charging or mortgaging of a holding with more than ten times the purchase instalment, unless the consent of the Land Commission to the transaction is forthcoming "-it is my frequent experience that the proprietor wishes, and in fact is bound if he makes an equitable and suitable provision for the members of his family, to charge the holding with a good deal more than the amount limited by this section, because this limit is far below the true marketable value of the holding, and does not in any way represent the actual marketable value thereof, or

the amount for which the lands are really a good security.

These wills are frequently only prepared at the last moment, when the solicitor is called to the client's house. There is then no time to ascertain if the Land Commission will consent to the proposed charging, and the probability usually is that the consent would not be forthcoming.

Under these circumstances, I have been accustomed to vesting the lands in the executors, as trustees of the will, upon trust to sell, and out of the proceeds realised by the sale to pay specified amounts to the testator's children, at such times as he should appoint, and to hold the balance upon trust for one particular child, being the child whom the testator actually intends shall be the sole beneficial proprietor of the holding.

Having done this, I give the trustees a discretion to manage and work the holding, paying the net income for the benefit of the testator's children. I direct that the power of sale shall not be exercised by the trustees until they shall find it necessary to sell for the purpose of raising the money directed to be paid to the children out of the proceeds of the sale, and I direct that if these amounts are paid to the trustees by the particular child whom the testator wishes to have the holdingbeing the child to whom the residue of the purchase money is bequeathed as above-that then the power of sale shall not be exercisable, and that on the lapse of such power of sale the lands shall be the absolute property of the particular child whom it is intended shall be the sole proprietor.

I have not seen any will in this form questioned before the Court-as to its validity-and I would be glad if you would say whether, in your opinion, the trusts of the will could be successfully maintained, having regard to sec. 54 of the Irish Land Act, 1903, and to the fact that the obvious intention of the testator is really to get around that section.

Yours faithfully,

HENRY SHANNON.

It

[Provided only one trustee is appointed, there appears to be no reason why the trusts outlined by our correspondent should not be successfully maintained. would seem to be preferable, however, to give the trustee absolute discretion in the matter of selling, rather than prohibiting the exercise of the power of sale until it is necessary to sell for the purpose of raising money. might well happen that circumstances would arise rendering a sale desirable at an earlier rate. For a form of Will on the lines mentioned by our correspondent, but modified in the manner indicated above, see Form 19, Miscellaneous Precedents, page 587.-Ed.]

SEPTEMBER AND OCTOBER legal pUBLICATIONS.

It

THE CONVEYANCER is published monthly. Notice of non-receipt of any number must be given to the Publishers not later than the end of the month of issue. After the end of that month the Publishers accept no liability for non-delivery. COMMUNICATIONS respecting matters of an Editorial nature should be addressed to "The Editor of the Conveyancer," at 3, Chancery Lane, London, W.C.2. CONTRIBUTIONS or manuscript forwarded with a view to insertion in the publication must be sent at the risk of the sender, although every effort will be made to return drafts or unsuitable copy. SUBSCRIPTION RATES :-Annual Subscription (payable in advance), £1 10s., inclusive of Postage; Single Copies, 2s. 9d. (postage, 2d. extra). ÉDITORIAL AND PUBLISHING OFFICES :-3, Chancery Lane, London, W.C.2.

Monday, November 11, is a day to be remembered, for it marks an epoch in the advance of civilisation. On that day Germany formally acknowledged the collapse of the mighty organisation which set out to conquer the world by force of arms, without regard for either solemn covenants or the recognised rules of civilised warfare. Self-interest was the only law that they acknowledged. It was inevitable that in the long run Justice must triumph over such forces, although many were the dark and anxious hours passed through before the final consummation was reached.

Simultaneously came the downfall of the autocratic rulers who willed the terrible conflict which has cost every nation concerned the sacrifice of the cream of its manhood. It is, VOL. 4.

therefore, now safe to predict that at last militarism has ceased to exist, and that we have seen the dawn of a new and higher civilisation.

We have good cause to be proud of the part played by the members of the legal profession, who nobly responded to the call of their country and offered their lives for a cause which-apart from pure patriotism-naturally would appeal to them with particular intensity. There are many vacant places in our ranks, but it is some consolation to know that their sacrifice has not been in vain.

Notes of Recent Cases.

An important case of conflicting equities was decided by Eve, J., in Hill v. Peters ([1918] 2 Ch.273;87 L. J. Ch. 584). Solicitors executed a declaration of trust in favour of two clients in respect of a debt of £4,000 secured by a mortgage in which the £4,000 was expressed to be advanced by the solicitors, whilst it really belonged to their clients. The property constituting the security was a reversionary interest under a will. Notice of the mortgage was given to the trustees of the will by the solicitors, but no notice was given by the clients of their interest under the declaration of trust. The solicitors in breach of trust assigned the reversionary interest to other mortgagees, who gave notice to the trustees of the will and obtained possession of the title deeds. It was held that the title of the beneficiaries under the declaration of trust did not require to be perfected by notice, and they were entitled to priority over the subsequent mortgagees who had given notice. The rule in Dearle v. Hall ought not to be extended, and did not apply in this case, where the beneficiaries had no right of possession, and could only assert their claim through the trustees.

As to the grounds on which claims for damages for the infringement of copyright under sections 6 and 7 of the Copyright Act, 1911, are based, and how such damages are to be assessed, see Beris Brothers, Lim. v. Keene & Co., Lim. ([1918] 2 Ch. 281).

G

Where a debenture trust deed provided that the trustees were to receive a yearly remuneration until the mortgaged premises were reconveyed or released, or until the whole of the same were realised, it was held by Peterson, J., that the trustees were entitled to their remuneration even after the appointment of a receiver. Anglo-Canadian Lands (1912), Lim., In re ([1918] 2 Ch. 287; 87 L. J. Ch. 592).

A testatrix gave the whole of her freehold and personal estates to A. absolutely, subject to a request that whatever of the freeholds should remain after A's death should be given to a certain charity. A. died in the testatrix's lifetime. Held, that, though the gift to the charity would have been repugnant and void had A. survived the testatrix, A having died in her lifetime, the gift to the charity was accelerated and took effect. In this case Neville, J. extended the principle of Lowman, In re ([1895] 2 Ch. 348; 64 L. J. Ch. 567), which was a case of leaseholds, to freeholds. Dunstan, In re ([1918] 2 Ch. 305; 87 L. J. Ch. 597).

Devise of real estates in strict settlement. Bequest of chattels in a certain mansion house to trustees to permit the same to go and be held and enjoyed with the mansion house, so far as the rules of law and equity would permit, by the persons for the time being "entitled to the possession of my real estates," followed by a clause precluding absolute vesting in any tenant in tail by purchase unless he attained twentyone, but entitling him to the use and benefit thereof during minority. Held, by Astbury, J., that the chattels vested absolutely in the first tenant in tail by purchase on his attaining twenty-one, though he was only entitled in remainder, and did not live to attain actual possession. Lewis, In re ([1918] 2 Ch. 808).

The delivery of an "Exchequer Bond Deposit Book issued by the Post Office, and containing a certificate that the holder had been "registered as the holder of bonds deposited with the Post Office to the value of £100," was held to constitute a good donatio mortis causa. Lee, In re ([1918] 2 Ch. 320; 87 L. J. Ch. 594).

Statutes for 1918.

The following Statutes passed during the current year should be noted (a):

Small Holding Colonies (Amendment) Act, 1918 (8 & 9 Geo. 5. c. 26), increases the total area of land which may be acquired by the Board of Agriculture and Fisheries under section 1 of the principal Act of 1916, for the purpose of providing experimental small holding colonies, to forty-five thousand acres in England (excluding Monmouthshire), twenty thousand acres in Wales and Monmouthshire, and sixty thousand acres in all; and empowers the Board, as regards any county, with the consent of the council of that county, to employ that council as their agents, and vest in them all or any of the powers thereby or by the principal Act conferred upon them, in addition to those vested in such council by virtue of the Small Holdings and Allotments Act, 1908; and the area of land which may be acquired by the Board of Agriculture for Scotland is increased to twenty thousand acres. It is provided, however, that the additional land, beyond that authorised by the principal Act, shall not be acquired otherwise than by taking the same on lease, or by purchasing it in consideration of the grant of a rentcharge or other annual payment, or by taking the same in feu; and that no portion of the additional land shall be acquired except after consultation with the chairman of the council of the county in which the land proposed to be acquired is situate, or with a committee of that council.

These powers, it will be remembered, have effect only during the continuance of the present war and for a period of twelve months thereafter.

Corn Production (Amendment) Act, 1918 (8 & 9 Geo. 5. c. 36), provides that the following sub-section shall be substituted for subsection (3) of section 11 of the principal Act of 1917: