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the body of the policy was in the continue, not merely while the goods ordinary form of a marine insurance, were on the vessel, but while the plaintiffs Martin, B., in delivering the judgment were liable as carriers in respect of them. of the Court below (3), saying, “The Crowley v. Cohen (1), is a direct authocontract is partly written and partly rity in the defendant's favour. The printed, and the agreement between the words at the bottom of the policy, “to parties is to be ascertained by the words cover and include all losses, &c.,” were of it. The circumstance that it is upon merely put in place of the ordinary the printed form which is usually adopted memorandum clause protecting the infor a common marine policy, is wholly surers from liability under five per cent., immaterial, if the language used and which might be inconvenient where the adopted by the parties shews that the goods would fluctuate in value. The Court insurance extends further than marine will not, in the absence of express provision, policies ordinarily do." In the present and having regard to the smallness of the case the Court will give effect to the premium, assume that it was intended to intention of the parties.
depart from the ordinary rule that the Sir G. Honyman (Watkin Williams with underwriter is not to be responsible him), for the defendant. The question is beyond the proportion which the subscripof course one of construction, and it is tion bears to the amount of the risk. necessary to bear in mind the well known Quain, in reply. distinction between fire and sea policies. In the case of a fire policy, whatever may MELLOR, J.-I am of opinion that our be the amount of the premium, if goods judgment should be for the plaintiffs. It are destroyed to the amount in respect of appears to me that the instrument in which the premium has been receivedquestion is not properly described as a the insurer must pay for the whole of the “marine policy,” but that it is a con. loss. But with regard to a marine policy tract by which the one party indemnifies it is necessary to calculate the proportion the other against any liability which he which the amount for which each under- may incur as a carrier, with regard to the writer has signed, bears to the whole owners of the goods. It does not, thereamount actually at risk. The amount fore, appear to me that we can do otherpayable depends not on the number of wise than construe the words which have the underwriters, but on the proportion been used according to their ordinary which the share of each bears to the value meaning. Now the manifest object of the stated in the policy, or if it is an open parties to the contract appears to be “to policy, to the real value of the goods. The cover and include all losses, damages, and mention of 2,0001. in the policy is merely accidents amounting to twenty pounds for the purpose of fixing the stamp, and or upwards in each craft, to goods there was nothing to prevent the plaintiffs carried by Messrs. Joyce as lightermen, from getting other policies on the same or delivered to them to be water-borne, risk. If they choose to insure so as to cover either on their own or other craft, and only part of the value, they must be taken for which losses and accidents Messrs. to have themselves insured the residue. Joyce may be liable or responsible to the In the present case there was no intention owners thereof, or others interested.” to alter the ordinary liability of the under
I confess it seems to me that the writers, and the words relating to the meaning of these words is that which character of the plaintiffs as carriers were Mr. Quain contended for. The case is merely inserted to describe the subject not, therefore, to be dealt with on the matter of insurance. The words “at and principles suggested by the defendant. from all or any of the wharves, &c.," were It is entirely distinguishable from the probably inserted in consequence of the case of Crowley v. Cohen (1), which has observations of Lord Tenterien in Crowley been relied upon, and, indeed, I do v. Cohen (1), to shew that the risk was to not think that any of the cases throw
much light on this particular policy, for (3) 36 Law J. Rep. (x.s.) Exch. 96. the words are not trici same, nor are they
DRUMMOND AND OTHERS V. SANT
capable of having a similar meaning 1871.
Ejectment—Lessor and Lessce— Annexa
tion to Tenement—Lands reclaimed from cannot adopt the argument that no man
River Thames-11 Geo. 3. c. 34-Tenancy in his senses would do it at such a premium. There is some premium at which
at Will-Right in Equity to Leasesuch an insurance might be made, and I
Statute of Limitations—3 8.4 Will. 4. C. do not think that the amount of it will
27. ss. 2, 7, 15-Cestuique Trust. aid us in construing this policy.
S., being seised in fee of land abutting LUSH, J.--I am of the same opinion. on the convex side of an arc formed by the This is an exceptional policy, and we can course of the Thames, entered into an agreeonly see and act upon the language used ment of the 23rd of June, 1769, whereby by the parties. What was intended I he covenanted with A. to grant leases cannot doubt, looking at the position of to him, for ninety-nine years from 1763, the plaintiffs, who were carriers upon the of messuages, which Ă. covenanted to river. Their object was to secure an in- erect on the land. A., and persons havdemnity against any loss which they ing interest in neiyhbouring property, might sustain as carriers in whole or in contemplated making embankment part, and the contract is not merely a along the chord of the aforesaid arc, so as policy upon the goods. A case may be to gain from the river the land inside the conceived in which the goods have perished, curve. They therefore obtained an Act (11 and yet the underwriters may not be Geo. 3. c. 34), which, after reciting that the liable upon this policy. The subject promoters had“ very valuable freehold and matter of insurance is the liability which Teasehold interest in houses, wharfs, and the plaintiffs would sustain in respect of grounds next adjoining the river, the goods by reason of their having powered them to make the embankment in accepted them as carriers. And looking front of their respective houses, Sc., and at the words of the document, I cannot enacted (s. 2) that the soil of the river 80 interpret them in any other sense than as to be enclosed in front of such respective importing that they, the underwriters, house, 8c., should vest, and the same was
, undertook to be responsible to the extent thereby vested in the owner or owners, proof their subscription for all the losses prietor or proprietors, of such adjoining which the plaintiff might sustain in respect house, &c., respectively, according to his or of these goods, and for which they, the their respective estates, trusts, or interests. plaintiffs, would be responsible over to Having erected houses according to the their owners. That is the very language agreement, A. duly received leases thereof. used, and I cannot entertain a doubt that The embankoment was contemporaneously it is what the parties meant. It is not made, and A. also built on the ground an ordinary marine policy, but a policy of reclaimed. The leases, which expired a mixed nature, the object of which was in 1867, did not include that land; to secure to the plaintiffs an indemnity to but A., and his representatives, retained the extent of the sum subscribed for, or possession of it until the present day, for any loss during the year which they without any demise to or acknowledgment might sustain by reason of their being by them. The plaintiff's, who derived their responsible as carriers for the loss of the title from S., brought ejectment for the goods.
reclaimed land :HANNEN, J., concurred.
Held, that they were entitled to recover, Judgment for the plaintiffs. for that the Embankment Act vested the fee
simple in S., subject to the interests created Attorneys -- Plows & Irvine, for plaintiffs ; Parker by the agreement, and A., having had a
right in equity to demand leases for ninety-
tenancy at will, had been that of cestuique trusts in possession, and, therefore, the title of the plaintiffs was not barred by the Statute of Limitations (3 & 4 Will. 4. c. 27). The proviso in s. 7 of that Statute applies to actual direct trusts, and is not limited to express trusts.
SPECIAL CASE, stated, by consent of the parties, and by an order of Court, in an action of ejectment brought to recover a piece of land, with the messuages, &c., thereon, and the appurtenances thereto, situate in the parish of St. Martin-in-theFields, in the county of Middlesex, and lying to the southward of, and adjoining to, a piece of land formerly known as Durham Yard, now known as the Adelphi Estate; which said piece of ground sought to be recovered was many years since reclaimed or embanked from the river Thames. The defendants appeared and defended for the whole.
The substance of the case and of the arguments sufficiently appears in the judgment of the Court.
Manisty (J. O. Griffits with him) (on June 24), for the plaintiffs, cited-Doe. d. Baddeley v. Massey (1), The Earl of Lisburne v. Davies (2).
J. Brown (A. Wills with him), for the defendants, referred to-3 & 4 Will. 4. c. 27. s. 7; 3 Chitty's Stat., 3rd edit. p. 35; Darby and Bosanquet's Stat. of Lim., p. 269; Archbold v. Scully (3).
Cur. adv. vult. The judgment of the Court (4) was delivered (on July 6) by
BLACKBURN, J.-This is a Special Case stated in an action of ejectment.
It appears that in the middle of the last century the trustees of the Duke of St. Albans were seised in fee of a piece of land, then called Durham Yard, which was bounded on the south side by the river Thames. The plaintiffs, it is admitted, have now got the estate of these trustees. The trustees of the Duke of St.
(1) 17 Q.B. Rep. 376; s. c. 20 Law J. Rep. (N.S.) Q.B. 434.
(2) 35 Law J. Rep. (N.s.) C.P. 193; s. c. Law Rep. 1 C.P. 259.
(3) 9 H. L. Cas. 360.
(4) Blackburn, J., Lush, J., and Hannen, J.
Albans made an agreement for a building lease with-four, brothers of the name of Adam, from whom the property derived its present name of the Adelphi. The defendants derive their estate from those brothers.
At first this agreement was not reduced to writing, and the Messrs. Adam began their operations, trusting entirely to the good faith of the Duke's trustees, but on the 23rd of June, 1769, articles of agreement, under seal, were executed, by which the trustees covenanted with the Adams that they, or the survivor of them, or the heirs of such survivor, should, when the messuages thereinafter covenanted to be built upon the said ground agreed to be demised, should be tiled in, at the request and charges of the Adams, their administrators or assigns, "by one or more good and sufficient indenture or indentures of lease not exceeding one lease for each house, and the expense of each lease not to exceed 51. 5s., including the registering thereof, demise to the Adams, their executors, administrators, and assigns," Durham Yard, to hold to them, their executors, administrators, and assigns, from Ladyday 1768, for ninety-nine years, at and under the yearly rent of 1,2001. And the Adams covenanted that they would before twelve months from the date thereof, i.e., before the 23rd of June, 1770, tile in so many houses in and upon some part of the ground, as to the satisfaction of the trustees should secure the payment of the rent of 1,2001. The portion of land to which this agreement applied, as already stated, extended to the Thames, which, to borrow the words of the Act of Parliament which we shall immediately quote, at that time formed "a convex circular sweep," or, as we should term it, an arc.
It appears from the plan attached to the articles of agreement, that it was in contemplation to make a straight embankment from one corner of this sweep to the other, forming the chord to this arc, and so win from the Thames the land inside the chord to the arc. It is the land, or at least the greater part of the land, thus reclaimed, that forms the subject of the present action.
Having discovered that they could not of fact, in coming to the conclusion that execute this purpose without the authority they had done this, and were therefore of Parliament, the Adams, and some entitled to call upon the trustees to exeother persons having interest in adjoining cute a lease, or leases, of the whole of property, promoted an Act of Parliament, Durham Yard, and, according to our con11 Geo. 3. c. 34.
struction of the Act of Parliament, of the There can be no doubt, though it is land reclaimed from the Thames, for not stated in the preamble, that this was ninety-nine years. with the concurrence of the owners of They had exercised this right by getting the fee, then the trustees of the Duke of several leases of different houses executed, St. Albans. This Act, after reciting in the rents reserved on which, however, the preamble that the Adams and the
appear in the aggregate not to have other promoters had valuable freehold amounted to 1,2001. [A plan accompany, and leasehold interests in Durham Yard, ing the Special Case was here referred Salisbury Street, Cecil Street, and Beau- to.] Two only of the houses come fort Buildings, next adjoining the river, down to the old margin of the river. and that they were willing to make the The leases of these two houses are set embankment in front of their respective out in the Case and by them it appears properties at their own expense, authorises that those two leases each contained them to do so; and then, by sect. 2, enacts, this express reservation: “Except and "That the ground and soil of the said always reserved out of these presents the river so to be enclosed and embanked in the lowest range of vaults, situate or being front of such respective house, wharf, or under the messuage or tenement hereby piece of ground shall vest, and the same demised, and which are intended to be is hereby vested, in the owner or owners, demised” by the trustees to the Adams. proprietor or proprietors of such adjoining So that it is plain that these leases did not house, wharf, or ground respectively, ac- comprise the actual original boundary of cording to his, her, or their respective the Thames which was included in the estates, trusts, or interests."
vaults thus reserved with the declared The first question raised in the Case was intention of making a subsequent lease of as to the effect of this enactment.
them; and, as it seems to us, a multo fortiori, Mr. Brown, for the defendants, endea- they did not include any part of the voured to construe it as enacting that the reclaimed land which lay beyond these Adams should have the fee simple in the vaults. land they thus reclaimed froin the Thames The state of the title, at the time when at their own expense; but we think it is the Act of Parliament came into operation, clear that it was intended that the re- therefore was, that a portion of Durham claimed land should be held by the same Yard was already under leases terminating title as the land in front of which it lay, at Lady Day, 1867, and that the residue
, and, consequently, that the fee simple of of it and the whole of the reclaimed the reclaimed land along the frontage of land was then held by the Adams as Durham Yard vested in the trustees of cestuique trusts in possession, having the Duke of St. Albans, subject to the under the articles of agreement of the interests, legal and equitable, created 23rd of June, 1769, a right in equity to under the articles of agreement of the leases for ninety-nine years from Lady 23rd June, 1769.
Day, 1768. Leases were subsequently exeThe next question that arises is, what cuted of all the different houses, the rents were those interests on the 18th of May, reserved in the aggregate, we presume, 1771, when the Act received the royal amounting to 1,2001. per annum; but these assent ?
leases carefully expressed what it was that The Adams had covenanted to tile in was comprised in each, and no one of them a sufficiency of houses by the 23rd of June, included the portion of reclaimed land now 1770, and, though it is not expressly found in dispute. This, it seems to us, was no in the Case, we have no difficulty, under the oversight, but purposely done. The object power reserved to us of drawing inferences of the brothers Adam in having separato
leases made of the different houses was that they might have it in their power to sell each lease separately; and it would have defeated their intention if the purchaser of the lease of a house could have claimed the wharf which was erected on the reclaimed land, or any portion of it, as part of what was comprised in his holding.
The Adams might have required the owners of the fee to execute to them a lease of this land, but there was no object to be gained by them by so doing, as, if the owners of the legal fee had in any way interfered with their possession during the ninety-nine years, a Court of Equity would at once have interposed.
The owners of the fee had a right to call on the Adams to accept and execute a lease for this land, but as the rent of 1,2001. was already adequately secured, it must have been a lease not reserving any rent; and until the passing of the 3 & 4 Will. 4. c. 27, there was no motive to induce them to require this, as till then there could be no question that the possession of the Adams during the term could not be adverse, and time would be no more a bar to their reversioners after an equitable term, than to those after a legal one.
But it was argued for the defendants that the effect of the 3 & 4 Will. 4. c. 27 was, as
is said in Nepean v. Doe d. Knight (5), to do away with the doctrine of non-adverse possession; and that consequently, after the lapse of five years from the passing of that Act, that is in 1838, the title of the present plaintiff's was barred, although there never had been a moment up to the end of the ninety-nine years, that is up to 1867, when they could have interfered with the possession without being liable to an injunction, and being punished for a breach of trust.
It is obvious that the Legislature conld never have intended this, and we think that there is nothing in the statute 3 & 4 Will. 4. c. 27, producing such an effect (6)
(5) 2 Mee. & W. 894 ; s.c. 7 Law J. Rep. (N.s.) Exch. 335.
(6) 3 & 4 Will. 4. c. 27. sect. 2, enacts that after 31st of December, 1833, no person shall make an entry or distress, or bring an action to rocover any
In Garrard v. Tuck (7) the Court of Common Pleas put a construction upon that statute, according to which, where the possession is that of a cestui que trust, though his relation to his trustee may at law be that of a tenant at will, the trustee's estate is not destroyed by mere lapse of time. That doctrine would be binding on us even if we did not approve of it as we do. But it was argued that the proviso at the end of section 7 must be limited to
express trusts,” and for this the case of Doe v. Rock (8) was cited. The word “express
" is not found in this section, but it may very well be that in construing the Act, the terms trustee and cestui que trust are to be understood in the same way as in Beckford v. Wade (9); the Privy Council therein held that the words trust and trustee in the Jamaica statute of limitations were to be understood, in the language of Sir William Grant, as meaning “ actual express trasts as between cestui que trusts and trustees, properly so called, on which length of time ought to have no effect." actual direct trust; not such possible, eventual trusts as may, in case certain
land or rent, but within twenty years next after the time at which the right to make such entry or distress, or bring such action, shall have first accrued.
Section 7 enacts, that in the case of a tenancy-atwill, such right shall be deemed to have first accrued at the termination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to hare determined : “provided always, that no mortgigor or cestui que trust shall be deemed to be a tonant-at-will, within the meaning of this clause, to his mortgagee or trustee."
Section 14 relates to acknowledgment of title, and section 15 provides “ that when no such acknowledgment as aforesaid shall have been given before tho passing of this Act, and the possession or receipt of the profits of the land, or the receipt of the rent, shall not at the time of the passing of this Act have been adverse to the right or title of the person claiming to be entitled thereto, then such person, or the person claiming through him, may, notwithstanding the period of twenty years herein. before limited shall have expired, make an entry or distress, or bring an action to recorer such land or interest” [sic] “ at any time within five years next after the passing of this Act.”
(7) 8 Com. B. Rep. 251; s. c. 18 Law J. Rep. (n.s.) C.P. 338.
(8) Car. & M. 553. (9) 17 Ves. 92.