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A selection of leading cases in equity, with notes (Volume 1) online

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Cogan v. JJufficld, 20 L. R. Eq.
789 ; 2 Ch. D. 44.

A postnuptial settlement, how-
ever, professing to be made in
pursuance of articles before mar-
riage, especially after the settle-
ment has been acted upon for a
long time, will not be reformed so
as to make it accord with a mere
general recital of the articles con-
tained in the settlement, the ar-
ticles themselves not bemg pro-
duced : Mignon v. Parry, 31 Beav.
211, And a deed not professing
to be made in pursuance of articles
cannot be rectified from within
itself as by its own recitals : Coates
V. Kenna, 7 I. E. Eq. 113, 134.

A settlement after marriage
made in pursuance of articles be-
fore marriage, although in accord-
ance with them, may be rectified
upon its being proved that the
articles were not in accordance
with the intention of the settlor.
See Smith v. lUffc, 20 L. R. Eq.

Coui'ts of Equity will not reform
a voluntary deed as against the
grantor {PhilUpson v. Kerry, 32
Beav. 628 ; Broun v. Kennedy, 33
Beav. Id^; Lister v. Hodgson, 4 L.
R.Eq. 30, 34, but see Thompson v.
Whitmore, 1 J. & H. 268), nor
wiU they decree a settlement as
against purchasers for valuable
consideration (amongst whom
mortgagees are included), without
notice of the articles : West v.
Errisscy, 2 P. Wms. 349 ; Powell
V. Price, 2 P. Wms. 535 ; Warwick
V. Warwick, 3 Atk. 291.

A settlement, however, will be
decreed against purchasers with
notice of the articles. Thus, in
Davies x.Davies, 4 Beav. 54, J.D.,
by marriage articles, covenanted
to settle an estate to the only
proper use and behoof of himself,
and after his decease to the use
and behoof of the heirs of the
said J. D. begotten or to be laAv-
fuUy begotten on the body of
E. D., and for want of such issue
to the light heirs and assigns of
the said J. D. for ever. J. D.
afterwards, without having exe-
cuted any settlement, mortgaged,
the estate by demise, and he and
his wife levied a fine. The ai'ticles
were handed over to the mortgagee.
It was contended for the moii:-
gagee, upon the authority of Lord
Xorthington, in Cord well v. Mack-
rill, 2 Eden, 344, that he was not
bound to take notice of an equit}"
arising out of the mere construc-
tion of words which were uncer-
tain, and that the mortgagee might
well suppose that the mortgagor
w\T.s entitled to charge the estate.
Cusack V. Ciisack, (5 Bro.P.C. 116,
Toml. ed.) and White v. Thorn-
borough (2 Yern. 702) were also
cited. However, Lord Langdalc,
M.Pt., held, that the possession of
the articles gave to the mortgagee
a sufficient notice of the title of
the plaintiff, the eldest son of the
marriage, as the articles showed
a clear and distinct intention of
benefiting the issue of the mar-
riage, which could not have misled
an unprofessional person, and de*



creed the estate to be conveyed to
the son as tenant in tail, discharged
of the mortgage with costs. Cord-
uiell V. Mackrill may, therefore, he
considered as overruled hy Davies
V. Davies ; see also Thompson v.
Simpson, 1 D. & W. 491, where
Sir* Edward Smjden, L. C. of Ire-
land, observes, " Cordicell v, Mack-
rill is a case of no great authority,
though decided by a great judge. . .
It seems to me that where, upon
the whole of the articles, it is plain
what construction the Court would
have put upon them, had it been
called to execute them about the
time they Avere made, they should
be inforced, however difficult the
construction may be, even as
against a purchaser ^rtith notice ;
but not after a lapse of time, where
there is an^'thing so equivocal or
ambiguous m them as to render
it doubtful how they ought to be
effectuated." See also Abbot v.
Geraghty, 4 Ir. Ch. Rep. 15, 24,

It may here be mentioned, that
in some cases of rectification, in
order to get the legal estate, a re-
conveyance is directed by decree

(Maltnesbury v. Malmosburij, 31
Beav. 407, 419), but a settlement
will sometimes be rectified by a
decree merel}', without the parties
bemg put to the expense of a fresh
deed (Tebbitt v. Tebbitt, 1 De G.
& Sm. 506 ; Stock v. Viniiig, 25
Beav. 235; White v. Wlcitc, 15
L. E. Eq. 247). It seems the
Court will now rectify a settle-
ment upon a petition. In re
Morse's Settlement, 21 Beav. 174;
In re Hoare's Trusts, 4 Giff". 254 ;
Lewis V. milman, 3 Ho. Lo. 607 ;
In re Bird's Trusts, 8 Ch. D. 244.
And see In re De La Tonche's
Settlement, 10 L. E. Eq. 599.
There, although the fact of the
mistake was not admitted b}^ all
parties, the Court, upon the evi-
dence on a Petition, filed under
the Trustee Eelief Act (10 & 11
Yict. c. 96), did not order the
Petition to be rectified, but pre-
facing the order with a declaration,
that it appeared the words in
Cjuestion were inserted by mistake,
made an order for distribution of
the fund as if the clause had not
been inserted. See however In
re Malet, 30 Beav. 407.



October 31.sf, 1726.

[reported select cases in chancery, 61.]

Renewal of a Lease by a Trustee.] — A. beinc/ 2>ossessed
of a Lease of a Market bequeatlied it to B. in trust for
an infant, B., before the exjyiration of the term,
applied to the Lessor for a renewal for the benefit of
tJie hfant. The Lessor refused to grant such renewal,
ivhereupon B. got a, Lease made to himself. Held that
B, icas Trustee of the Lease for the Infant, and must
assign the same to him and account for the pj'ofits, but
that he was entitled to be indemnified from the Covenants
contained in the Lease.

A PERSON being possessed of a lease of the profits of
a market, devised his estate to a trustee in trust for the
infant. Before the expiration of the term the trustee
applied to the lessor for a renewal, for the benefit of the
infant, which he refused, in regard that, it being onl}' of
the profits of a market, there could be no distress, and
must rest singly in covenant, which the infant could
not enter into.

There was clear proof of the refusal to renew for the
benefit of the infant, on which the trustee gets a lease
made to himself.

Bill is now brought [by the infant] to have the lease
assigned to him, and for an account of the profits, on this
principle, that wherever a lease is renewed by a trustee
or executor, it shall be for the benefit of cestui que use,
which principle was agreed on the other side, though
endeavoured to be differenced on account of the express
proof of refusal to renew to the infant.

Lord Chancellor King. — I must consider this as a
trust for the infant, for I very well see, if a trustee, on



the refusal to renew, might have a lease to himself, few
trust estates would be renewed to cestui que use. Though
I do not say there is a fraud in this case, yet he [the
trustee] should rather have let it run out than to have
had the lease to himself. This may seem hard, that the
trustee is the only person of all mankind who might not
have the lease ; but it is very proper that rule should be
strictly pursued, and not in the least relaxed ; for it is
very obvious what would be the consequences of letting
trustees have the lease on refusal to renew to cestui
que use.

So decreed, that the lease should be assigned to the
infant, and that the trustee should be indemnified from
an}' covenants comprised in the lease, and an account of
the profits made since the renewal.

Keech v. Sandford, sometimes
called the Bumford Market Case,
is usually cited as the leading au-
thority on the doctrine of con-
structive trusts arising upon the
renewal of a lease by a trustee or
executor in his own name and for
his own benefit. The rule here
inflexibly laid down b}- Lord Kiufi
has ever since been invariably
followed; viz. that a lease renewed
by a trastee or executor, in his
own name, even in the absence of
fraud and upon the refusal of the
lessor to grant a new lease to the
cestui que trust, shall be held upon
trust for the person entitled to the
old lease : see Fitzrjihhon v. Scan-
Ian, 1 Dow, 261, 269; Eaive v.
Chichester, Amb. 715; S. C, 1
Bro. C. C. 19S n.; 2 Dick. 480 ;
Pickerinr/ v. Voicles, 1 Bro. C. C.
198 ; Piersonw. Shore, 1 Atk. 480;
Nesbitty. Tredennirk, 1 Ball & B.

46 ; Ahncij v. Miller, 2 Atl: 597 ;
Edwards v. Lewis, 3- Atk ^'538;
Killick V. Flexney, 4 Bro. ' " C.
161 ; Moody v. Matthews, 7^^^" '.
174; James v. Dean, 11 Ves.F^ ;
Parker v. Brooke, 9 Yes. 583 ;
Lovatt X. Knipe, 12 Ir. Eq. Eep.
124; Kendall v. Marsters, 2 De G.
F. & Jo. 200 ; see also Walley v.
Walley, 1 Yeru. 484 ; and Holt v.
Holt, 1 Ch. Ca. 190, which seems
to be the oldest case upon the

And in a recent case in Ireland
the rule was held to apply to an
administratrix of a deceased te-
nant from year to year, who upon
obtaining a new tenancy from year
to year, was held a trustee thereof
for the next of kin of tlie intes-
tate : Kelly v. Kelly, 8 I. 11. Eq.
403. Tliere the widow and ad-
ministratrix of a tenant from year
to year, of a holding in Ulster,



continued in possession for two
years after his death, and the te-
nancy having been then deter-
mined by notice to quit, offered
no resistance to an ejectment
brought by the landlord, who took
formal possession, but left her in
undisturbed possession at the same
rent. It was held by Chatterton,
Y.-C, that though there was no
fraud in the transaction, the new
tenancy was a graft on the old one
for the benefit of the next of km
of the intestate, even though there
was a custom on the estate that a
holding should not be divided
amongst the next of kin of an in-
testi % but be given to the widow
if a sirable tenant.

' same rule applies also to an
e^ .or de son tort renewing in
,'n name : Mulvany v. Dillon,
il & B. 409 ; Griffin v. Gr'ifjin,
-,. . & L. 352. But where a trustee
,ains a new lease, which com-
prises, not only the premises in
the original lease, but also addi-
tional lands, the trusts will not
attacn upon the additional lands :
Acheson v. Fair, 3 D. & W. 512 ;
2 C. & L. 208.

In Foord v. Baker, 27 Beav.
193, a scheme made in 1855
pro\dded, that no person should
act as trustee of the charity,
who should hold or occupy any
part of the charity property.
At that time one of the trustees
held a small piece of charity land
under a twenty- one years' lease
granted in 1847 by public tender.
It was held by Sir Jolui Eomilly,

M.R., that he must either give
up the lease or the trusteeshiji.

The ground of decreeing re-
newals by trustees and executors
to enure to the benefit of cestui
que trusts is public policy to pre-
vent persons in such situations
from actmg so as to take a benefit
to themselves : Griffin v. Griffin,
1 S. & L. 354, per Lord RecleS'
dale ; and see Bleicett v. Millctt, 7
Bro. P. C. 367, Toml. ed.

So, if a person ha\ing a limited
interest in a renewable lease, as
a tenant for life, renews it m his
own name, he will be held a trus-
tee for those entitled in remainder
to the old lease : {Raire v. Chi'
Chester, Amb. 715 ; S. C., 5 Dick.
480 ; 1 Bro. C. C. 198, n. ; Taster
V. Marriott, Amb. 668 ; Owen v.
fVilliams, Amb. 734 ; Coppin v.
Fermjhough, 2 Bro. C. C. 291 ;
Bouies V. Stewart, 1 S. & L. 209 ;
Randall v. Russell, 3 Mer. 190 ;
GiddingsY. Giddings, 3 Buss. 241 ;
Neshitt V. Tredennick, 1 Ball & B.
46 ; Eyre v. Dolphin, 2 Ball & B,
290 ; Tanner v. Elworthy, 4 Beav.
487 ; Waters v. Bailey, 2 You. &
Coll. C. C. 224 ; Buckley v. La-
nauze, L. & G., t. Plunk. 327 ;
Hill V. Mill, 12 Ir. Eq. Rep. 107 ;
Mill V. Hill, 3 H. L. Cas. 828 ;
Trumper v. Trumper, 14 L. R.
Eq. 295 ; 8 L. R. Ch. App. 870) ;
and m the case of a tenant for hfe
under a Avill, even although the
original lease may have expu'ed
during the life of the testator, who
had continued to hold merely as
tenant from year to year. See



J,t,n>'H V. Dean. 11 Ves. 383; >S'. C'.,
la Ves. i236, where u testator be-
queathed leaseholds for years de-
terminable upon lives to his widow
(who was his residuary legatee and
executrix) for life, with remainder
ov'er ; the term expired during the
testator's life, who continued to
hold as tenant from year to year :
a subsequent lease, obtained by
his widow, was held to be subject
to the trusts of the will, as the
residue of the term at his death,
if any, however short, would ha^'e
l)een. " The question," said Lord
Eldon (see 11 Ves. 395), " is. as
the interest which passed at the
testator's death was an interest
he could bequeath b}' a will ante-
cedent to his acquiring it, and that
Interest, though but a tenancy
from year to year being bequeathed
to one for life, with remainder to
another, if, during the tenancy of
the person who took for life, act-
ing upon the goodwill that accom-
panies the possession, she gets a
more durable term, whether the
persons who are to take against
lier, are or are not entitled to say,
that term is acquired for their
l)enefit as well as her own. If she
liad died in liis lifetime, his term
ironi year to year would have
passed to the remainderman, who
would have been specifically enti-
tled to it. The consc.'quence is,
the term, though short, is be-
queathed in these i)articular
estates ; and it cannot depend
upon the question, whether the
interest is long or short. Suppose

only a quarter of a year subsisted
at the deatli of tlie testator, if the
tenant for life did renew, it musi
have been as well for the benefit
of the persons to take afterwards
as herself." If, however, the tes-
tator in James v. Dean had only
been tenant at will or at sufferance,
the widow upon renewal of the
lease would not have been a trus-
tee for the persons to whom the
leaseholds were bequeathed in re-
mainder, for as a tenancy at will
or at sufferance would have deter-
mined upon the death of the tes-
tator, ]io interest would have
passed to them by the will ; but
Lord Eldon was inclined to thiiilc,
that, had the widow not been re-
siduary legatee, she would, in such
a case, have been a trustee for the
residuary legatee. " The ques-
tion," observed his lordship (see
11 Yes. 393), "is new, whether an
executrix, deahng with the oppor-
tunities which she derives by )'' -
succession without title to the
estate a tenant by sufferance or at
will had held, is a trustee for the
person, who cannot sa^' he tcok an
interest under the will, or whether
it is to be said against her only,
that the advantage she made of
those opportunities should be for
the general estate. The result is
this : I think it is hnpossible she
could ludd it for herself. Not aj)-
plving it to this case, but supposing
another person, not the Avife, was
residuary legatee, the question, I
should think, would be in favoui-
of tliat otlier i-esiduarv legatee.



being a casual advantage from the
dealing of the executrix." See
also Randall v. Russell, 3 Mer.
190 ; Mill V. Hill, 3 H. L. Cas.
866; Archhold v. Scully, 9 Ho. Lo.
Cas. 360. In re Tottenham's
Estate, 16 Ir. Ch. Kep. 115.

Although a tenant for life of a
lease under a settlement be him-
self the author of it, if he renew
the lease in his own name, he will
be a trustee for the parties inte-
rested under the settlement : Pick-
ering V. Voules, 1 Bro. C. C. 197 ;
Colegrave v. Manhij, 6 Madd. 72 ;
S. C, 2 Russ. 238. And the fact
of the settlement containing a spe-
cial provision that a particular
renewal shall enure for the benefit
of the trust, will not prevent the
application of the general rule :
Tanner v. Elwortliy, 4 Beav.

By analogy to these cases, if not
under the 73rd section of the
Lands Clauses Consolidation Act
(8 & 9 Vict. c. 18), when a tenant for
life receives a sum of money for
withdrawing opposition to a bill,
and the act then passes autlioris-
ing the taking of the land in set-
tlement, whether the land is taken
or not, and whether the act is pro-
ceeded upon or not, the money
so received must be held for the
benefit of all the parties interested :
Pole V. Pole, 2 D. c^ Sm. 420 ;
Re Duke of Marlborough's Estates,
13 Jur. 738 ; Earl of Shrewsbury
V. North Staffordshire Railway
Company, 1 L. R. Eq. 593, 008,
sed vide Ex parte Lockwood, 14

Beav. 158 ; E.r parte The Rector
of Little Steeping, 5 Railway Ca,

So where a tenant for life of re-
newable leaseholds has a general
power of appointment, which he
does exercise, a renewal in his
own name, not being an execution
of the power, will enure over at
his death for the benefit of the
remainderman. In Brookman v,
Hales, 2 V. & B. 45.

And where a person who is
trustee of property for liimself and
others, acquires, under an Act of
Parliament, upon the representa-
tion that he was solely entitled,
an absolute interest therein, he
wiU, nevertheless, be held a trus-
tee for all the parties beneficially
interested, of whatever estate or
right he may have so acquired.
Thus : in Cooper v. Phibbs, 2 L.
R. Ho. Lo. 149, E. J. Cooper,
being in possession of certain es-
tates and a fishery, which, by a
settlement in 1827, he had coven-
anted to settle, after previous limi-
tations to himself and his issue
male, on his brother, R. W.
Cooper, for life, Avith remainder
to his issue male, obtained an Act
of Parliament, which, after re-
citing (among other things) that
the estates and fishery had des-
cended to and were then vested in
the said E. J. Cooper, and that the
said E. J. Cooper was desirous of
constructing canals or water cuts,
at his own expense, in considera-
tion of the exclusive right of
fishery being vested in him,



Ijis heirs ami nssigns, it was
tlierejbre enacted that the said
powers to make the canals and
cuts should he granted to him,
provided that the cuts "shall he
altogether situated on the estates
and property of the said E. J.
Cooper." There were various
other provisions, in all of which
E. J. Gooj)er was spoken of as
the owner of the estate. E. J.
Cooper having died without issue
male, it was held hy the House of
Lords that E, J. Cooper, under
the Act of Parliament, took the
fishery hound by the trusts of the
settlement of 1827. '' I must,"
said Lord Westhury, " of neces-
sity assume that E, -T. Cooper had
the intention of stating the truth
and the fact to the legislature.
When, therefore, I find in this
Act of Parliament a recital that
this fishery, together with the
other hereditaments, on the death
of the lunatic, descender! to E.
J. Cooper, in fee, that must he
taken to rej^resent to Parliament
that the trust estate did so de-
scend. Your lordships are hound
to assume E. J. Cooper's honesty
and integrity of jiurpose, and
therefore you cannot for a moment
impute to him that he intended to
conceal from the legislature the
fact of the property being bound
by the trusts (jf the settlement.
You must take the recital con-
tained in the Act of Parliament
as a recital intended to denote the
descent of the legal estate in fee
held by him upon trust, and you

cannot impute to liim an intenfio
of representing to Parliament that
it was his own property, because
you cannot for a moment suj)pose
that he was ignorant of the agree-
ment or contract contained in
that deed, or that he intended to
repudiate the obligation which he
had contracted under that deed.
Then, if it be taken that he stood
before Parliament as a trustee,
the powers and authorities con-
ferred upon him b}- that Act of
Parliament are conferred upon
him in his character of trustee.
They are attached to the owner-
ship in fee, which he represents
himself to have had ; and as
that ownership was subject to the
trust, the powers and authorities
attached to the ownership are in
like manner subject to the obliga-
tion of that trust, and the things
acquii'ed by virtue of those powers
and authorities would also be sub-
ject to the trusts which affected
the individual who becomes the
parliamentary donee of those
powers. There can be no doubt
for a moment, therefore, with re-
gard to the settled j)rinciples of
equity, that what was given to him
in the character of owner in trust
for the other persons, and what
was acquired by him in virtue of
those powers, became also subject
to that trust. The result, there-
fore, is, tliat all he acquired b}'
virtue of the parliamentary powers
would become subject to the trusts
of the settlement of 1827, subject
only to the repayment to him by



the parties entitled under those
trusts of the moneys properly ex-
jDended by him in acqumng addi-
tional rights of fishery, and im-
proving the whole."

Upon the same principle where
the tenant for life, under a
devise, of an encroachment upon
the property of the Crown in the
Forest of Dean, took under an
Act of Parliament (1 &, 2 Vict. c.
42) for confirming the titles to the
encroachments, a conveyance to
herself in fee, it was held that
as the act was intended only to
provide for disputes between par-
ties claiming adversely the legal
right (speaking without regard to
the Crown's title) to be in posses-
sion and treated as holders, the
devisee had acquired the fee, not
only for her own benefit, but also
for the benefit of those in remain-
der: Yem V. Edwards, 3 K. & J.
564, 1 De G. & Jo. 598. On the
subject of encroachments by ten-
ants, see Andrews v. Hailes, 2 Ell.
k B. 349 ; Kingsmill v. Millard,
11 Exch. 313.

If one of several persons jointly
interested in a lease renew it in
iiis own name, he will hold in trust
for the others, according to their
respective shares. Tl\i\x^,\\\ Palmer
V. Young, 1 Yern. 276, one of three
who held a lease under a dean and
chapter, surrendered the old lease,
and took a new one to himself:
the Court said it should be a trust
for all. See also Hamilton v.
Denny, 1 Ball & B. 199; Jackson
V. Welsh, L. & G., t. Plunk. 346.

Where a tenant for life, and
remainderman of a lease for lives,
take a renewal thereof to them-
selves as joint tenants, in the ab-
sence of anything shewing a con-
trary intention, their prior interests
in equity will remain unaltered.
See Hill V. Hill, 8 I. E. Eq.
140 ; there lands held under a lease
for lives, having been devised to
Mary Hill for life, and after her
death to Thomas Hill absolutely,
they joined in surrendering the
lease, and procured a new one
for lives to themselves and their
heirs. There was nothing in the
new lease, beyond the grant of it
in the ordinary form of joint
tenancy, which expressed any-
thing as to the intention of the
parties in obtaining it. The con-
sideration for the new lease was
contributed unequally b}^ the les-
sees. Thomas Hill devised the
lands, but Mary Hill survived
him and devised them to the de-
fendants. It was held by Chat-
terton, V.-C, that the legal estate
granted by the new lease was
vested in the defendants as de-
visees of Mary Hill, in trust for
the plaintiff, as the heir-at-law of
Thomas Hill, and also of his
devisee. " I think," said his
Honour, " that in cases like the
present the Court will consider,
in the absence of any proof of a
contrary intention beyond the
mere form of the habendum of
the grant, that the parties sur-
rendered their existing interests
merely for the purpose of renewal,



and not with the object of altering
those interests ; and that the new
legal estate must accordingly be
held in trust for the parties re-
spectively, according to their in-
terests in the previously existing
estate." This case was, on ap-
peal, affirmed, with a slight varia-
tion. See Hill v. Hill, 8 1. E.
Eq. 622.

And if a person jointly inte-
rested with an infant, reneAV, and
the renewed lease turn out not to
be beneficial, the person renewing
must sustain the loss ; if beneficial,
the infant can claim his share of
the benefit to be derived from it.
This is the peculiar privilege of
the unprotected situation of the
infant. But to any sums which
ma}^ have been paid for the renewal
of the lease, or in consequence of
it, the infant must contribute his
due proportion, before he can
claim any advantage : Ex parte
Grace, 1 B. & P. 37G.

So, likewise, if a partner renew
a lease of the partnership premises
on his own account, he will, as a
general rule, be held a trustee of
it for the firm. " It is clear,"
observed an eminent judge, " that
one partner cannot treat privately,
and behind the backs of his co-
partners, for a lease of the pre-
mises where the joint trade is
carried on, for his own individual

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