was entitled, twelve months after the decease of the testator's widow. The
husband survived the testator's widow more than twelve months, but took no



314 EQUITABLE ASSIGNMENTS.



steps to reduce the property into possession. His Honor, upon the authority
of Elwin v. Williams, (7 Jur. 337,) held the assignment void as against the
surviving wife; observing, however, that he did not say what would have been
the effect upon the wife's rights or claims if the husband had bona fide, for
valuable consideration, executed a deed of release of the legacy. See also
r * rm Hastings v. Orde, *11 Sim. 205; Ashton v. MDougall, 5 Beav. 56;
E J Wilkinson v. Charlesworth, 10 Beav. 324, 328 ; Rowland v. M'Donnel,
13 Ir. Ch. Rep. 365, 381 ; Borton v. Borton, 16 Sim. 552.

It has, however, been recently decided that a release by a husband of a
reversionary chose in action of his wife is as inoperative to bind his wife by
survivorship as his assignment would be. Rogers v. Acaster, 14 Beav. 445.

Where an annuity or life interest in a fund is given to a married woman,
and is not settled to her separate use, the husband is not, with her concurrence,
capable of effectually disposing of her life estate, except during his own life ;
for, if she outlive her husband, such part of it as would be enjoyed by her
after the coverture determined, would be reversionary only, and consequently
the husband cannot, consistently with the cases of Purdew v. Jackson and
Honner v. Morton, make a title to such portion of the annuity or dividends of
the fund as may accrue after his own death, and during the life of his wife
surviving him. See Stiffe v. Eceritt, 1 My. & Cr. 37 ; Ilarlcy v. Harlcy, 10
Hare, 325.

Although a woman having a reversionary interest in personalty, obtain an
assignment of the interest of every other person therein, she will not thereby
convert her reversionary interest into an interest in possession, or enable her
husband to do indirectly, what he could not do directly, — assign her original
interest, so as to bar her right by survivorship ; and if the reversionary fund
is in Court, it will not be paid out, although the consent of all other persons
interested in it be obtained. After some conflicting decisions, this has been
finally determined by Lord Cottenham, in the important case of Whittle v.
Ilenning, 2 Ph. 731, affirming the order of Lord Langdale, M. R., 11 Beav.
222. There, a fund in Court was subject to a trust for a husband for life,
remainder to his wife for life, remainder to their son absolutely. The hus-
band and son by deed surrendered and released their respective interests to
the wife, for the express purpose of giving her a present absolute interest in
the fund, and thereby enabling her to assign it at once to the son. Upon a
petition being presented by the husband, wife, and son, for payment of the
fund to the son, it was dismissed by Lord Cottenham. " It is true," observed
his Lordship, " that the wife in this case has not only a present life interest
from her husband, but the ultimate interest in the fund from her son, and
therefore, it is said, has a present absolute title to the whole. This proposi-
tion assumes that the reversionary life interest no longer exists, that it is in
fact merged in the other interests so conferred upon her by her husband and
l"*66 9 1 sou ' "^ u * *^ s can 0D ly prevail if the Court should, *by analogy to law
establish an equitable merger for the sole purpose of depriving the
wife of this protection to her reversionary interest, which it has hitherto



ROW V. DAWSON. — RYALL V. ROWLES. 815

afforded, which would be to permit a supposed analogy to the rules of law to
defeat the rules and practice of this Court in the protection it affords to mar-
ried women, although in all other cases it disregards the rules of law, and the
rights of husbands when they interfere with such rules and practice. What
this Court protects is, the reversionary life interest of the wife ; and for that
purpose it will consider it still as reversionary, notwithstanding other parties
interested in the fund may, for the purpose of depriving her of such rever-
sionary interest, by enabling her to dispose of it, endeavor to unite in her per-
son all the other interests in it. I observe that the V ice-Chancellor of Eng-
land, in Hall v. Hugonin, (14 Sim. 595,) says, that he does not put the case
as one of merger; but the conveyancer who prepared the assignment in this
case seems to have been aware that in no other way could the object of the
parties be advanced ; for it recites that the object was, that the life interest of
the husband should be merged and extinguished in the interest of the wife.
If there be no merger, the life interest of the wife remains reversionary, and
would therefore be clearly within Purdew v. Jackson, (1 Russ. 1,) Homier v.
Morton, (3 Russ. 65,) and the many other cases which have established the
rule for the protection of the reversionary interests of wives. Is there, then,
a merger which defeats this rule? Legal merger there cannot be; but if
there had been, equity would not permit a merger at law to defeat equitable
estates and interests. Such has been the rule at least, since the time of
Charles II., as is proved by Thorn v. Newman, (3 Swanst. 603,) Nurse v.
Yerworih, (3 Swanst. 618.) Will it, then, when there is no legal merger,
introduce the doctrine of merger into trusts, solely for the purpose of defeat-
ing equities, and destroying its own jurisdiction in the protection of the inte-
rests of married women ? I cannot, also, but refer, upon this part of the case,
to the able argument of Mr. Rendall in Hall v. Hugonin, (14 Sim. 595,)
showing how impossible it was to prejudice the wife in her own reversionary
interest by others bestowing upon her gifts which she might afterwards dis-
claim, and thereby revive her reversionary interest, after this Court, if it
should make the order prayed, had destroyed it by treating it as an interest in
possession." And see Richards v. Chambers, 10 Ves. 580 ; Story v. Tonge,
7 Beav. 91; Brandon v. Woodthorpe, 10 Beav. 463. The cases, therefore,
of Hall v. Hugonin, 14 Sim. 595 ; Creed v. Perry, 14 Sim. 592, and Bishop v.
Colebrooh, 16 Sim. 39, may be considered as overruled.

*But although the court of equity will not give effect to the assign-
ment of the husband, so as to defeat the wife's legal right by survivor- ■- ■"
ship, it will be good against him if he survive his wife, (Hornsby v. Lee, 2
Madd. 20,) and when it becomes an interest in possession it will be subject to
the wife's equity to a settlement. See Greedy v. Lavender, 13 Beav. 62, and
note to Lady Elibank v\ Montolieu, vol. 1, p. 362.

If the chose in action either is originally, or becomes an interest presently
attainable, it may be reduced into possession by actual payment to the husband
or his assignees : and the wife's right by survivorship and her equity to a



316 EQUITABLE ASSIGNMENTS.

settlement may be thereby defeated : Cunningham v. Antrobus, 16 Sim. 436;
Allday v. Fletcher, 1 De Gr. & J. 82. See ante, vol. 1, p. 387.

As to the form of the stop order on the assignment of the wife's reversionary
chose in action, see Moreau v. Poller/, 1 De Gr. & Sm. 143.

Where a married woman, domiciled abroad, is entitled to reversionary inte-
rests in personalty, her rights or powers over such interests, or those of her
husband, may be regulated by the law of their domicil. See Guepratte v.
Young, 4 De Gr. & Sm. 217; Duncan v. Cannan, 18 Beav. 128, and the cases
there cited.

A recent Act, 20 & 21 Vict. c. 57, (which does not extend to Scotland,)
enables married women in certain cases, to dispose of reversionary interests in
personal estate, in the same manner as they can now dispose of their real estates.
It enacts that, "After the 31st day of December, 1857, it shall be lawful
for every married woman by deed to dispose of every future or reversionary
interest, whether vested or contingent, of such married woman, or her husband
in her right, in any personal estate whatsoever to which she shall be entitled
under any instrument made after the said 31st day of December, 1857, (except
such a settlement as after mentioned,) and also to release or extinguish any
power which may be vested in or limited or reserved to her in regard to any
such personal estate, as fully and effectually as she could do if she were a feme
sole, and also to release and extinguish her right or equity to a settlement out
of any personal estate to which she, or her husband in her right, may be en-
titled in possession under any such instrument as aforesaid, save and except
that no such disposition, release, or extinguishment shall be valid unless the
husband concur in the deed by which the same shall be effected, nor unless
the deed be acknowledged by her as hereinafter directed : Provided always,
that nothing herein contained shall extend to any reversionary interest to which
she shall become entitled *by virtue of any deed, will, or instrument
*- -^ by which she shall be restrained from alienating or affecting the
same." Sect. 1.

It is then enacted that, " Every deed to be executed in England, or Wales by a
married woman for any of the purposes of this Act shall be acknowledged by
her, in the manner prescribed by 3 & 4 Will. 4, c. 74, (the Fines and Re-
coveries Act ;) and every deed to be executed in Ireland by a married woman
for any of the purposes of this Act shall be acknowledged by her in the man-
ner prescribed by 4 & 5 Will. 4, c. 92, (the Irish Fines and Recoveries Act ;)
and all and singular the clauses and provisions in the said Acts concerning the
disposition of lands by married women, including the provisions for dispensing
with the concurrence of the husbands of married women, in the cases in the
said Acts mentioned, shall extend and be applicable to such interests in per-
sonal estate and to such powers as may be disposed of, released, or extinguished
by virtue of this Act, as fully and effectually as if such interests or powers
were interests in or powers over land." Sect. 2.

It is then provided, " That the powers of disposition given to a married
woman by this Act shall not interfere with any power which independently of



ROW V. DAWSON. — RYALL V. ROWLES. 317

this Act may be vested in or limited or reserved to her, so as to prevent her
from exercising such power in any case, except so far as by any disposition
made by her under this act she may be prevented from so doing, in conse-
quence of such power having been suspended or extinguished by such dispo-
sition." Sect. 3.

And also, " That the powers of disposition hereby given to a married woman
shall not enable her to dispose of any interest in personal estate settled upon
her by any settlement or agreement for a settlement made on the occasion of
her marriage." Sect. 4.

It will be observed that the operation of this Act is of a very limited cha-
racter. In the first place, it only applies to reversionary interests in personalty
to which married women may become entitled after the 31st of December,
1857. In the next place, reversionary interests in personal estate comprised
in any settlement, or agreement for a settlement, on marriage are excepted
from the operation of the Act. And lastly, all persons conferring reversionary
interests in personalty on married women, " by any deed, will, or instru-
ment," may restrain her from alienating or affecting the same.

In a recent case, a woman, joint tenant of a reversionary interest in a legacy
of £2000 stock, married, and after the marriage, the husband became bank-
rupt, and then the wife died, leaving the tenant for life of the fund surviving;
it was held by *Sir G-. Turner, V. C, that by the death of the wife, r*ppc-i
the other joint tenants of the fund became entitled to her interest
therein by survivorship ; that that was the elder title to that of the husband,
which also accrued after the death of the wife, and that upon the death of the
tenant for life, the other joint tenants, and not the assignees of the husband,
were entitled to what had been the wife's share of the fund. In Re Trusts of
Barton's Witt, 10 Hare, 12.

A husband may make a valid assignment of his wife's reversionary interest
in leaseholds, (Donne v. Hart, 2 Russ. & My. 360,) unless the interest be of
such a nature that it cannot by possibility vest in the wife in possession during
the coverture. Duberley v. Day, 16 Beav. 33.

How far notice is requisite in order to perfect an assignment of Choses in
Action.] — In order that third parties may be bound, it is necessary, with re-
gard to a chose in action, to do all that can be done to perfect the assignment.
Thus, it was decided, in the principal case of Ryall v. Rowles, that debts are
chattels, and are within the meaning of the statute, (21 Jac. 1, c. 19, s. 11.)
The consequence is, that if they remain in the possession, order, and disposi-
tion of the bankrupt at the time of the bankruptcy, they will pass to the as-
signees. Therefore, in order completely to divest the bankrupt of such debts,
he must have done everything that is equivalent to a delivery of chattels per-
sonal; that is, of movable goods; and the judges, at least one, Sir Thomas
Parker, says, that which is equivalent to delivery of movables, is, in the case
of a debt, an assignment and delivery of the security, (if any,) and notice to
the debtor of the assignment. It might, perhaps, have been a question whether,
after assignment and delivery, of the security to the assignee, the bankrupt



318 EQUITABLE ASSIGNMENTS.



could be said to have the order and disposition, merely because there was no
notice to the debtor of the assignment. Probably that requisite was added, as,
otherwise, the debtor might safely pay the money to the person who had, with-
out his knowledge, ceased to be his creditor. The debtor would be bona fide in
making the payment; and it would be impossible to make him pay it again.
Per Sir W. Grant, M. K., in Jones v. Gibbons, 9 Ves. 410.

Accordingly, upon the same principle, on an assignment of a policy of
assurance, notice must be given to the office, of the assignment, in order to
take it out of the order and disposition of the assured ; otherwise the assign-
ment will not be valid as against his assignees. See Thompson v. Speirs, 13
Sim. 469 ; Waldron v. Sloper, 1 Drew. 193.

r*rrn ^ n Martin v. Sedgtciek, 9 Beav. 333, the defendant held shares in
*- *the Rock Life Assurance Office, as a trustee for Punlop, and executed

a declaration of trust, but no notice thereof was given at the office of the Com-
pany, the defendant afterwards mortgaged the shares to secure his private debt.
Notice of this mortgage was given to the Company, and entered in their
books. It was held by Lord Langdale, M. 11., that the mortgagee had priority
over the cestui que trust. "The first question," said his Lordship, "made
here is this, whether inasmuch as by the constitution of the Company a share-
holder is a partner; and as by the ordinary rule of law, notice to one partner
is notice to the others, it must not be assumed that, at the time when the
transfer was made to Sedgwick upon trust, the whole Company had such dis-
tinct notice of the creation of the trust, that the same effect is to be given to
it as if there had been a regular formal notice given in the usual manner. I
am of opinion that that is not the case. It would put an end to that important
doctrine, by which security is afforded to assignments accompanied with notice
to the trustee or holder, and by which a good assignment and security is effected,
so as to prevent its being defeated by any subsequent assignment. There was
nothing to hinder Dunlop from giving that notice, which would have perfectly
secured him against any subsequent dealing with the fund by the defendant.
That notice was not given. The result was, that these shares remained stand-
ing in his name in the books of the Company unfettered by any such notice ;
and he was left entirely at liberty without the possibility of any other par-
ties guarding themselves against his improper acts, to dispose of those shares
in any manner which the rules of the Company allowed." See also Ex parte
Boulton, 1 De G. & J. 163 ; Pierce v. Brady, 23 Beav. 64.

Upon the same principle, if the assignee of a chose in action, or a trust estate
of personalty, does not perfect his title by giving notice of the assignment to
the debtor or trustees, a subsequent purchaser or encumbrancer giving notice
of his assignment will thereby acquire priority ; and it is of no importance, in
the question of priority, whether the interest of the assignor be vested or con-
tingent, present, or reversionary. Dearie v. Hall, and Loveridge v. Cooper,
3 Ptuss. 1, are the leading cases upon this subject. In Dearie v. Hall, Brown,
being entitled for life to the yearly sum of £93, being the dividend arising
from the moiety of a sum of money invested in the names of the executors of his



ROW V. DAWSON. — RTALL V. ROWLES. 319

father's will, by an indenture, dated the 19th of December, 1808, assigned it to
Dearie, to secure an annuity granted in consideration of £204 ; and by another
indenture, dated the 26th of September, 1809, he assigned the same yearly sum
*to Sherring, to secure an annuity granted in consideration of £150. v * cc ~-i
No notice of the assignments was given by either Dearie or Sherring L
to the executors. By an indenture, dated the 20th of March, 1812, Brown,
in consideration of 711?. 3s. 6c?., assigned the same annual sum absolutely to
Hall, who, previous to making the purchase, called for every information re-
specting the fund and the title from the acting executor, and on the 25th of
April, 1812, served the executors with a written notice to pay him, as assignee
of Brown, a moiety of the dividends of the fund during Brown's life, and
they accordingly paid him a sum of money on account thereof. On the 17th
of October following, the executors, for the first time, received notice of the
assignments to Dearie and Sherring, and refused to make any more payments
until the rights of the different parties should be ascertained. Sir Thomas
Plumer, M. R., after an elaborate consideration of the authorities, dismissed
the bills filed by Dearie and Sherring, holding, that Hall had a better equity
to the fund, and that the assignment to him, though posterior in date, was
entitled to priority, in consequence of his having given, and of Dearie and
Sherring having neglected to give, notice to the trustees. " The question,"
said his Honor, " here is, not which assignment is first in date, but whether
there is not, on the part of Hall, a better title to call for the legal estate than
Dearie or Sherring can set up ; or rather, the question is, shall these plaintiffs
now have equitable relief, to the injury of Hall ? What title have they shown
to call on a court of justice to interpose on their behalf, in order to obviate
the consequences of their own misconduct ? All that has happened is owing
to their negligence, (a negligence not accounted for,) in forbearing to do what
they ought to have done, what would have been attended with no difficulty,
and what would have effectually prevented all the mischief which has follow-
ed. Is a plaintiff to be heard in a court of equity, who asks its interposition
in his behoof, to indemnify him against the effects of his own negligence, at
the expense of another who has used all due diligence, and who, if he is to
suffer loss, will suffer it by reason of the negligence of the very person who
prays relief against him ? The question here is, not as in Evans v. Bicknell,
whether a court of equity is to deprive the plaintiffs of any right, — whether
it is to take from them, for instance, a legal estate, or to impose any charge
upon them : it is simply, whether they are entitled to relief against their own
negligence. They did not perfect their securities : a third party has inno-
cently advanced his money, and has perfected his security, as far as the nature of
the subject *permitted him. Is this Court to interfere to postpone
him to them ? L - J

" They say, that they were not bound to give notice to the trustees, for that
notice does not form part of the necessary conveyance of an equitable interest.
I admit, that, if you mean to rely on contract with the individual, you do not
need to give notice ; from the moment of the contract, he with whom you are



320 EQUITABLE ASSIGNMENTS.



dealing is personally bound. But if you mean to go further, and to make
your ri^ht attach upon the thing which is the subject of the contract, it is
necessary to give notice ; and, unless notice is given, you do not do that which
is essential in all cases of transfer of personal property. The law of England
has always been, that personal property passes by delivery of possession ; and
it is possession which determines the apparent ownership. If, therefore, an
individual, who, in the way of purchase or mortgage, contracts with another
for the transfer of his interest, does not divest the vendor or mortgagor of
possession, but permits him to remain the ostensible owner as before, he must
take the consequences which may ensue from such a mode of dealing. That
doctrine was explained in Ryall v. Bowles, (1 Ves. 348; 1 Atk. 165,) before
Lord Hardwicke and three of the Judges. If you, having the right of pos-
session, do not exercise that right, but leave another in actual possession, you
enable that person to gain a false and delusive credit, and put it in his power
to obtain money from innocent parties, on the hypothesis of his being the
owner of that which in fact belongs to you. The principle has been long re-
cognized even in courts of law. In Twynes case, (3 Rep. 80,) one of the
badges of fraud was, that the posssession had remained in the vendor. Pos-
session must follow right; and if you, who have the right, do not take pos-
session, you do not follow up the title, and are responsible for the conse-
quences.

" ' When a man,' says Lord Bacon, (Maxims of Law, Max. 16,) ' is author
and mover to another to commit an unlawful act, then he shall not excuse him-
self by circumstances not pursued.'

"It is true that a chose in action does not admit of tangible actual posses-
sion, and that neither Brown nor any person- claiming under him were en-
titled to possess themselves of the fund which yielded the £93 a year. But,
in Ryall v. Rowles, the Judges held, that, in the case of a chose in action,
you must do everything towards having possession which the subject admits :
you must do that which is tantamount to obtaining possession, by placing every
person who has an equitable or legal interest in the matter under an obliga-
tion to treat it as your property. For this purpose, you must give notice to
the legal *holder of the fund ; in the case of a debt, for instance,
L ot)J J notice to the debtor is, for many purposes, tantamount to possession.
If you omit to give that notice, you are guilty of the same degree and species
of neglect as he who leaves a personal chattel, to which he has acquired a
title, in the actual possession and under the absolute control of another
person.

" Is there the least doubt, that, if Brown had been a trader, all that was
done by Dearie and Sherriug would not have been in the least effectual agaiust
his assignees ; but that, according to the doctrine of Ryall v. Rowles, his as-
signees would have taken the fund, because there was no notice to those in
whom the legal interest was vested ? In that case, it was the opinion of all
the Judges, that he who contracts for a chose in action, and does not follow
up his title by notice, gives personal credit to the individual with whom he



ROW V. DAWSON. — RYALL V. ROWLES. 321

deals. Notice, then, is necessary to perfect the title, — to give a complete
right in rem, and not merely a right as against him who conveys his interest.
If you are willing to trust the personal credit of the man, and are satisfied
that he will make no improper use of the possession in which you will allow
him to remain, notice is not necessary; for, against him, the title is perfect
without notice. But if he, availing himself of the possession as a means of
obtaining credit, induces third persons to purchase from him as the actual
owner, and they part with their money before your pocket-conveyance is noti-
fied to them, you must be postpoued. In being postponed, your security is
not invalidated ; you had priority, but that priority has not been followed up ;
and you have permitted another to acquire a better title to the legal possession.