wife, in the first place, I apprehend George might do that which he has done, alienate so entirely as to destroy such right as the wife might have, and which could never have accrued to her (unless it was by the divorce) during the lives of the husband and wife; and I apprehend it would be impossible for any Court to hold that that alienation could be defeated by the subsequent adultery of the wife. Independently of that, the trust is primarily for George; and it is very different from a case in which a testator, making provision for a daughter, says, "I make this provision for my daughter and give it to her for life, with remainder for her children," and no more. In that case the Court sees it is intended for her; but here it is intended to be for the son; the testator sees his son living with a wife, and he wishes them jointly to possess it, the son having his wife at his home; he wishes it to be paid to them; according to the English law it will go to the husband, and that is the mode in which the testator wishes it to be enjoyed. This will was made at a time when there was no possibility of the determination of the coverture otherwise than by death. He makes a provision of 50%. a year for her life if she survives, and a strong negative inference arises from that that she was to have no such benefit as that contended for if she did not survive him. The question which arises under these circumstances is this, whether or not, a separation having taken place, the wife is to take one half and the husband the other, or whether the husband can continue to take the 150l. a year, the wife no longer living with him and he no longer, according to the view of the testator, requiring so large a sum as 150l., that being reduced to 100%. in the event of the wife's death. The gift being for the benefit of the son George and his wife, to be paid to them jointly, I hold that the husband is not deprived of the benefit of that gift because of his being obliged to separate from his wife in consequence of her adultery. Upon that ground I think the gift to George remains, and that the wife takes nothing. NEW SERIES, 34.-CHANC. Mortgage Agreement by Mortgagee to Lease-Specific Performance-Damages. A mortgagee of leaseholds, whose mortgage contained no leasing power, agreed to grant a lease of the mortgaged premises. The intended lessee was aware that the intended lessor was only a mortgagee, and, though the agreement contained no stipulation to that effect, both parties understood that the concurrence of the mortgagor was to be obtained. The mortgagor, subsequently, refused to concur. Upon a bill by the intended lessee against the mortgagee,-Held, that he was not entitled to a specific performance of the agreement, though he offered to take the lease without the concurrence of the mortgagor; also, that the case was not one in which the Court would give damages; but the bill was dismissed without costs. Quære-whether the Court would have enforced specific performance even if there had been no understanding as to the concurrence of the mortgagor. Thomas Slattery, being the lessee of two houses, Nos. 31 and 31A, Upper Berkeley Street West, for the residue of a term of ninety-four years and nine months from the 24th of June 1828, by a deed, dated the 26th of August 1853, assigned them to Sir William Keith Ball (the defendant), by way of mortgage, to secure the repayment of 1,4007. The deed contained no power to lease. On the 1st of June 1863 three memoranda were signed, by which, in effect, the defendant agreed to let No. 31A, described as being in the occupation of Mrs. Paul, to the plaintiff for the residue of the term comprised in the lease, at a rent of 50%. a year and a premium of 1207.; possession was to be given in a week, and the plaintiff was to be at liberty to make alterations, and build according to plans then produced. The plaintiff, at the time of signing the memoranda, had been informed that the defendant held the premises only as mortgagee, and the defendant entered into the contract with the impression that the X mortgagor would join in granting the lease, which, notwithstanding the request of the defendant, he refused to do. The defendant had never, in fact, received rent from Mrs. Paul, but believed that she held merely as a weekly tenant; and on the 1st of June 1863 he served her with notice to quit in a week. She, however, claimed to be tenant for three years, under a written agreement from Slattery. The plaintiff filed this bill against Sir W. K. Ball, asking for a specific performance of the agreement, or otherwise that the defendant might pay damages. Mr. Hobhouse and Mr. G. Hastings, for the plaintiff, said the plaintiff was willing to take such lease as the defendant could grant. The agreement was good, and the defendant was bound to perform it as far as he could. The absence of any power to lease was immaterial; the power only enabled the mortgagee to bind the mortgagor. Mr. Selwyn and Mr. Lindley, for the defendant. The mortgagee is, in effect, a mere trustee for the mortgagor, subject to the payment of the money lent on the security of the premises. Upon notice to pay off the mortgage, the defendant was bound to re-assign the premises free from incumbrances. And the Court would not compel the defendant to commit a breach of trust Mortlock v. Buller, 10 Ves. 292. But this contract was, in fact, conditional only upon the mortgagor's concurrence; and upon his refusal it was at an end. They cited further— Howe v. Hunt, 31 Beav. 420; s. c. 32 Swaine v. the Great Northern Railway And if liberty to bring an action was reserved, the defendant was entitled to the costs of the suit, though they would not have been given to him under other circum stances. Mr. Hobhouse, in reply. The MASTER OF THE ROLLS.-I must read the evidence before I dispose of the case. No one can doubt that a mortgagee can grant a lease of the mortgaged property, or any portion of it. It is also clear that, according to the ordinary rule, whether the mortgagor or mortgagee is in possession of the mortgaged property, the lease is granted with the concurrence of the mortgagor and mortgagee. There is no doubt that a mortgagor in possession frequently grants leases without the concurrence of the mortgagee; but then the mortgagee may enter into possession and evict the lessee. So when the mortgagee in possession grants a lease without the concurrence of the mortgagor, the lease cannot, after redemption, stand good as against the mortgagor. This difficulty, therefore, arises if a mortgagee grants a lease, and puts the lessee in possession, the mortgagor may file a bill to redeem, and ask for an account against the mortgagee, as in a case of wilful default, and thereby raise the question whether the rent reserved was the best that could have been obtained. A mortgagee may well say, "I will not incur the risk of such a bill and inquiry; therefore, I will not grant a lease unless the mortgagor concurs." It is contended, on behalf of the mortgagee, that it was not his intention to grant a lease unless the mortgagor concurred in it. This is a question of fact to be gathered from the evidence. What is in favour of the plaintiff is, that the name of Thomas Slattery does not occur in any of the three documents constituting the agreement. The answer to this was, that it is the practice to make the mortgagor join in the lease; that it was known to all parties that the property was in mortgage and that Thomas Slattery was the mortgagor; and that it was understood that he would join in the lease. If that was the understanding of all parties, then it would be impossible to compel the defendant to grant a lease without the concurrence of the mortgagor, and thereby to run a risk he never contemplated when he entered into the agreement. The question as to damages and costs is distinct. I will read the papers before giving judgment. The MASTER OF THE ROLLS (May 4).— The question in this case is, whether, on the construction of three documents, which constitute the agreement in this case, the defendant is bound to grant to the plaintiff a lease of certain mortgaged premises without the concurrence of the mortgagor. The premises in question are a house in Upper Berkeley Street. The perusal of the evidence satisfies me that the defendant never intended to grant any lease of the property in question without the concurrence of Thomas Slattery, the mortgagor; but this fact will not conclude the question. It is necessary further to consider whether the plaintiff was or was not cognizant of such intention on the part of the defendant at the time when the contract was entered into. If he was not, there would arise the simple question whether, when a mortgagee agrees to grant a lease of part of the mortgaged property, of which he is not in possession, the intended lessee can insist on such lease being granted to him, although the mortgagor will not concur, and although the lease is subject to all the inconveniences which the mortgagee may afterwards sustain in case the mortgagor should file a bill to redeem, and insist that the premises were not granted at such a rent or on such terms and covenants as were proper, having regard to the state of the property. I do not know that this bare point has ever been decided, but I do not think it necessary to inquire further into it on the present occasion, because on the evidence I am satisfied that it was on both sides considered that the agreement was for a lease to be approved of and concurred in by the mortgagor, and that it was so treated both by the plaintiff and the defendant. What I am asked to do is this. In a case where the consequences may be very serious to the defendant, under the decree which is obtained in mortgage suits, namely, decree for wilful default, I am asked to compel him to execute a lease to the plaintiff, of which lease the plaintiff may be deprived to-morrow by the mortgagor; and to do this in a case where the parties themselves knew that the property was under mortgage at the time of the agreement, and that the assent of the mortgagor was essential to give a good title, and where the agreement proceeded on this mutual understanding, not, it is true, expressed in writing, but fully entertained by both parties, that the mortgagor was to concur. When an agreement is entered into for a lease of property, it is to be understood that this includes that all proper persons should join in the lease; and this is clearly so as regards the lessee; and the plaintiff could not in this instance have been compelled to take the lease without the concurrence of Mr. Slattery. I think that the rule equally holds good as regards the lessor, provided that the want of the concurrence of the third person, who is necessary to give a good lease, might or would inflict an injury on the lessor, and that this circumstance was known to the intended lessee at the date of the agreement. Here the plaintiff, when he filed his bill, knew that this concurrence could not be obtained. He knew also that the lease was to be granted with a large premium for the remainder of the term. He might have been entitled at law to some damages if he could shew that he had sustained any loss, but in my opinion he is not entitled to specific performance. The bill must be dismissed, but without costs, because it is clear that in this case the evil has arisen from Sir William Ball entering into the contract without previously considering whether he could obtain the concurrence of the mortgagor in the lease. There will be simply a decree to dismiss the bill, without costs. Mr. Hobhouse asked that there might be added to the decree the words, without prejudice to any claim at law for damages." The MASTER OF THE ROLLS (May 5).I cannot reserve leave to bring an action at law. When I decided this case, I considered that it was not a case for an action at law; but although I do not reserve any right, I do not intend to fetter a Court of law on the subject. I simply express my opinion that it is not a case in which I should give either costs or damages. Will-Construction "In default of Issue" -Shifting Clause-Costs. A testator was tenant for life of two estates with remainder to his wife for life, with remainder to their first and other sons in tail male, with remainder to himself in fee. By his will (made before the Wills Act), he devised one of these estates, "in default of issue of his body, and subject to the life interest of his wife," to trustees in trust for his brother E. for life, with remainder to his first and other sons in tail male. And the testator devised his other estate, "in the same terms," to the same trustees, upon trust to raise money to pay his debts, and subject thereto in trust for his brother R. for life, with remainder to his first and other sons in tail male. The testator died without issue-Held, that by the words "in default of issue," the testator, in the case of the estate devised to pay debts, clearly referred not to a general failure of issue, but to a failure at the time of his death; that the same construction must prevail as to the other estate; and consequently that both estates were well devised. The will further provided that in case R, or any son of his body, should succeed to a particular family estate, then the trusts before declared for the benefit of R. and such son of his body so succeeding should cease, and the estate should be in trust for the persons who, by virtue of his will, would become next entitled to the same. R. became tenant for life of the family estate, and his son tenant in tail in remainder:-Held, that R. only had "succeeded" to the family estate, and that his son became entitled to the estate devised by the will. The above suit was for general administration; but there being no personal estate and no debts, the only questions decided were as between the devisees inter se and between the devisees and heir-at-law or his representatives:-Held, that the costs of the suit must be borne by the devised estates and descended estates pro rata. This was the hearing on further consideration of the above suit, which was instituted, by William Walter Bagot, an infant, and by his father, the Rev. Ralph Bagot, to administer the estate of William Bagot, and to carry the trusts of his will into execution. In order to make intelligible the questions arising upon the will of William Bagot, it is necessary to state previously the will of his father, the Rev. Walter Bagot, and certain settlements executed by William Bagot on the occasion of his marriage. The Rev. Walter Bagot by his will, dated the 4th of May 1798, gave to trustees all his real estate in Warwick (which included an estate called Pype Hayes), Lancaster and elsewhere, to hold to them for 1,000 years on certain trusts therein mentioned, and subject thereto unto his son Egerton Arden Bagot for life, with remainder to his first and other sons in tail male, with remainder successively to the testator's other sons, Walter, William, Harvey and Humphrey Bagot, and their respective sons in tail male, with remainder to his son, the plaintiff, Ralph Bagot for life, with remainder to his first and other sons in tail male, with the ultimate remainder to the testator's own right heirs. The Rev. Walter Bagot died in July 1806. William Bagot married in December 1820, and on that occasion, by an indenture, dated the 27th of December 1820, he conveyed certain freehold estate at Pipe Ridware, in Staffordshire, and 112 acres of land at Aston, in Warwickshire, called "Butler's Farm," to the use of himself for life, with remainder to his wife for life, with remainder to his first and other sons in tail male, with remainder to himself in fee. And, by the same indenture, William Bagot assigned certain leasehold property at Pipe Ridware, held for certain long terms of years, to Egerton Arden Bagot, and three other trustees, upon such trusts as would best correspond with the uses and limitations therein before declared as to the real estate. By another indenture, also dated the 27th of December 1820, and executed in contemplation of the marriage, it was declared that the same trustees should stand possessed of 10,000l. consols, upon trust for William Bagot for life, and after his decease upon trust for his intended wife for life, and after the decease of the survivor upon trust for all and every the children of the marriage, as the husband and wife should by deed or will jointly appoint, and in default, for all the children equally, and in default of children acquiring a vested interest in the stock, in trust for William Bagot absolutely, subject to the life estate of his wife, with power to the trustees to dispose of the stock and invest the proceeds in government or real securities and to vary the same. By indentures dated the 15th and 16th of April 1828, 8,2007., the proceeds arising from the sale of the 10,000l. consols, was invested in the purchase of an estate at Abbotts Langley, in the county of Hertford, which was conveyed to the then trustees of the indentures of the 27th of December 1820, subject to a proviso for conveyance to William Bagot on re-transfer to them by William Bagot, his heirs, executors or administrators, of the 10,000l. consols, or in case William Bagot should become absolutely entitled to the said sum of 10,000l. consols. Egerton Arden Bagot survived all his co-trustees under the indentures of the 27th of December 1820. Walter Bagot, Harvey Bagot and Humphrey Bagot all died, without issue male, before the date of William Bagot's will about to be mentioned. William Bagot made his will, dated the 13th of December 1832, and thereby directed his debts, funeral and testamentary expenses to be paid out of his personal estate, and in case the same should be insufficient, he charged his estate at Pipe Ridware with the same, and "in default of issue of his body, and subject to the life interest of his wife," the testator devised his estate called Butler's Farm to Edward (afterwards Sir Edward) Vaughan Williams and John Farquhar Fraser, their heirs and assigns, in trust for his brother the Rev. Egert on Arden Bagot for life, with remainder to his first and other sons in tail male, and for default of such issue, in trust for such person and persons as at the time of the failure of such issue male of his said brother should become entitled to the estates at Pype Hayes, in the county of Warwick, then in possession of his said brother, for such and the like estates and interests as such person or persons should have or become entitled to in the same last-mentioned estate. And he gave, devised and bequeathed his estate at Pipe Ridware, “in default of issue of his body and subject to the life interest of his said wife," to the same trustees, their heirs, executors and administrators, according to the nature and quality thereof, upon trust, by mortgage or sale, to raise such sums as should be sufficient to pay his just debts or such of them as his personal estate should not be sufficient to pay, and also the legacies given by his will or any codicil, and subject thereto, in trust for his brother, the plaintiff Ralph Bagot for life, with remainder to his first and other sons in tail male, with remainder in trust for his nephew the Rev. Henry Legge and his sons, in the same manner, with remainder in trust for his nephew John George Phillimore and his sons in like manner, and with an ultimate trust for the testator's own right heirs for ever. The will then, after referring, somewhat inaccurately, to the settlement of the 10,000l. consols, and to the sale thereof, and the purchase of the Abbotts Langley property, devised the said Abbotts Langley property as soon as the trusts thereof should cease and determine; and also all his furniture, books, pictures, linen, plate, china, wines and other household goods, with live and dead stock at Abbotts Langley, after his wife's decease (who was to have the enjoyment for her life), to his trustees, their heirs, executors, administrators and assigns, upon trust for such and the same person and persons respectively, and for such and the same estates and interests, for whose benefit he had thereinbefore declared the trusts of his estate at Pipe Ridware, provided that any person taking an estate tail under his will in the Pipe Ridware or Abbotts Langley estates, should not take an absolute interest in the leasehold estates in Staffordshire, or in his furniture or other personal property in and about the estate at Abbotts Langley until he should attain twenty-one; and the will then proceeded: "Provided also and I do hereby declare that, in case my said brother Ralph Bagot or any son of his body as aforesaid, shall succeed to the estate of Pype Hayes aforesaid, by reason of the death of my said brother Egerton Arden Bagot without issue male of his body, or leaving such, by reason of the death of him or them before any of them shall attain the age of twenty-one |