1797. Ex parte ANJELL. Courts have been right in infifting that the memorial must state the provifo, it ought alfo to contain the terms. EYRE Ch. J. If the 17 Geo. 3. c. 26. had gone no further than the first claufe, we must have looked to the import of the words of that claufe; and the practice of the Regifter Counties.. There they enter no more than a memorandum, containing the names of the parties, the dates, the premifes, and perhaps the confideration. I do not know how ex vi termini or on analogies we can say that more was intended here. The Legislature has said what shall be inferted; namely, the date, the names of the parties, and for whom they are truftees, the witneffes, the annual fum, the name of the perfon for whofe lives the annuity is granted, ` and the confideration or confiderations. Now, unless under the word "confiderations," I cannot fay that the terms of the provifo are included. I fhould incline to go fome length for the fake of general utility to decide that the terms must be fet out in the memorial, but I doubt whether the act requires it. The word "confiderations," in the act, may mean mere money confiderations. In the cafe where the Courts have held it neceffary to infert the provifo of redemption in the memorial, it has been indorfed on the deed: and has therefore been confidered either as a feparate deed, or as fomething collateral to the deed itself, and effential to be fet out as a fuperadded part of the fecurity. In the cafe of a provifo in the body of the deed, I doubt whether on the general idea of a memorial, or the specific defcription of it in this act, it need be inferted. I am not therefore prepared at prefent to confider this memorial as infufficient. It is a memorial only, not a copy of the deed: it ftates a deed for fecuring an annuity redeemablo " on the terms therein expreffed:" for which reference may be had to the deed itfelf. Is not this a fufficient compliance with the words of the act? He who fees an annuity redeemable, will inquire after the deed, and look into the terms. It has been stated that the act was made for the benefit of the grantor, who has parted with the deeds: I cannot fubfcribe to that propofition: it was made for the benefit of mankind in general, that the world might know the nature of fuch tranfactions, and the parties be reftrained by a fenfe of fhame from entering into them. The policy of the law would be amply fatisfied by a memorial like the prefent; it answers all fubftantial purpofes, for it cannot be neceffary to load it with the full contents of the deed which would be little fhort of requiring a copy. But if my Brothers fhould be of a different opinion, I fhould wish to take time to confider. BULLE BULLER J. I have confiderable doubts upon this question: and cannot quite coincide in the opinion of my Lord. I should fooner fay that the provifo need not be inferted at all, than that it thould be inferted in this general way. The queftion is, Whether the provifo be part of the confideration or not? Look through the act. It was there intended to include money confiderations only, and one claufe actually fays" in money only." If then the word "confiderations" means money confiderations only, a provifo is not within the terms of the act. But the point has been already fettled, both here and in the King's Bench, and I am not difpofed to disturb what has been settled by two determinations, though the act does not appear to go that length. Having got thus far, that the word "confiderations" includes all the terms of the agreement, the remaining queftion will be, Whether the prefent provifo be fufficiently ftated? I admit no difference between the cafe of a provifo indorfed, and a provifo in the body of the deed. They are both parts of the agreement. So in a warrant of attorney with a defcafance, the defeafance is a part of the inftrument. If then the provifo is to be taken notice of at all, is it not to be taken notice of substantially? The act in my opinion was made for the benefit of the grantor, as well as the public. Let us fee then if this memorial be fufficient to protect the grantor, against any improper advantages which might be attempted. He knows the annuity to be redeemable, but the deeds are in the hands of the grantee. Is it not then material for him to know the terms on which it is redeemable: as whether at the end of three or at the end of feven years? Is it not of importance that he fhould have it in his power to prove all the material facts out of the mouth of the party himfelf: that he may be able to come to the Court, ftate the specific terms, and demand the deed on compliance with the provifo? The terms therefore not being inferted, I think the provifo infufficiently ftated, and if fo, that the annuity should be fet afide. HEATH J. I have great doubts upon this queftion. There is no analogy between the register acts and the 17 G. 3. The former were made for the benefit of purchafers: the latter to throw a fence about the grantors of annuities, who are ufually incautious and extravagant. What my Brother Buller has faid appears extremely forcible, that the grantor ought to know the precife terms on which the annuity is redeemable: he would otherwife be left in great doubt and difficulty, unless he has kept a copy of the deed, VOL. L. F 1797. Ex parte ANSELL, 1797. Ex parte Poft. 482. deed, which is rarely done. As it has been held neceffary to regifter a provifo, it must be fhewn on what terms the provifo is to take effect and I fee no difference between a provifo inferted in the body of the deed, and one indorfed on the back of it. : ROOKE J. I am inclined to think the memorial infufficient. The provifo is a part of the confideration. Every circumstance in favour of the grantor is a part of the confideration; for all fuch circumftances form the ground of the grant, and if every fuch circumstance be a part of the confideration, it should be fo fpecifically stated, that the grantor may know clearly what the terms of the agreement are. "On the terms therein expreffed," is not a fatisfactory statement. I think however that this matter requires further confideration. Cur.adv. vult. On this day the opinion of the Court was delivered by EYRE Ch. J. We have conferred with all the Judges on this queftion, and the refult is, that we all think, that where an annuity is redeemable, the terms and conditions of redemption ought to be fet forth in the memorial, in order that the party who is to have the benefit of fuch redemption, may without being driven to any compulfory means, be apprized of those terms and con ditions, and máy redeem it with moft eafe and convenience to himfelf. The confequence is that we must make (a) When this matter was first moved, Williams Serjt. stated that no action had been brought on the bond, nor any judgment entered up on the warrant of attorney, but cited Ex parte Chefer, 4 T. R. 694. to fhew that the Court had nevertheless a jurifdiction. The Court faid "that every warrant of attorney entered was subject "to their cognizance, but that they could * not in all cafes order all the proceedings "to be cancelled, because they were void "by the 1ft fection of the act." So in Duke of Bolton v. Williams, 4 BrownChan. Caf.310. and 2 Vez. jun. 154. Lord Loughborough faid, "The courts of common-law, "which will upon their general jurifdi&tion JOHN SCOTT v. GODWIN. HIS was an action on a covenant contained in a leafe, by THI which the Defendant had agreed to repair certain premifes, of which he was tenant, at his own cofts and charges. 465. The reverfion of Lands demifed to the Defendant for years, is con B. and the heirs of B. in truft for A.declares fingly on a covenant A and his heirs: contained in the leafe, and af er letting out the above title, with out averring the dea h of B, ftates himself to thereby "feifed of the "reverfion in his "fee." This is The declaration ftated in fubftance as follows:-That one Thomas Grice was feifed of the reverfion of the premifes in queftion in his demefne as of fee, fubject to a mortgage term of 500 years, which term was fubject to be defeated, and was defeated before the making of the indenture thereinafter next mentioned; that by an indenture made between the faid Thomas Grice and the Defendant, the faid Thomas Grice demifed the premifes in queftion to the Defendant for a term of twenty-one years; that the Defendant covenanted to repair at his own cofts and charges; that the Defendant entered, and became poffeffed, and that the faid Thomas Grice was feifed of the reverfion in his demefne as of fee; that being fo feifed, the faid Thomas Grice devifed the faid reverfion to his fon and died: that the fon together with certain perfons having mortgage claims upon the premifes by « demetue, as of leafe and releafe conveyed the faid reverfion to John Scott and Robert Scott, "to have and to hold the fame unto the faid John "Scott and Robert Scott, to the only proper ufe and behoof of "the faid John Scott and Robert Scott, and the heirs and affigns "of the faid Robert Scott for ever, but nevertheless as to the "eftate and intereft of the faid Robert Scott, his heirs and affigns "therein, in truft for the faid John Scott, his heirs and affigns for "ever. By means of which faid premises, the faid John Scott be"came, and was, and fill is feifed of and in the faid reverfion inhis "demefne as of fee," &c. That although John Scott had ever fince the faid reverfion came to him by affignment as aforefaid, kept the covenants on his part, yet the Defendant had broken his covenant by delivering up the premises out of repair. Damages, &c. To this there was a special demurrer, affigning feveral causes (which were afterwards abandoned) and joinder therein. Shepherd Serjt. for the Defendant. I fhall not argue the fpecial caufes of demurrer, but rely on a fubftantial defect on the record. The declaration is herein the name of one, whereas the legal eftate in reverfion of the lands in question belonged to John Scott and Robert Scott, as joint tenants for their lives; and thofe in whora the legal estate in reverfion is must bring the action. Now John and Robert Scott may be jointenants for their lives, although Robert F 2 bad upon de murrer. Robert had a feveral inheritance. Co. Litt. 182. a. 2 Black. The covenant therefore must be confidered as being made to both John and Robert, which renders it impoffible for John to bring this action alone. Marshall Serjt. for the Plaintiff. Firft, I fhall contend that Robert Scott is a mere truftee, introduced into the conveyance to preclude John Scott's wife from having her dower, and folely for the benefit of John Scott the cefluy que truft; and it is now a fettled rule of law that an cftate in truft merely for the benefit of the ceftuy que truft, fhall not be fet up againft him. This was laid down by Lord Mansfield, in Lade v. Holford, 3 Burr. 1416. 2 Bl.428. B.N.P. 110. and Goodtitle v. Knot, Corp. 46. and recognized by Lord Kenyon, in Doe v. Staples, 2 T. R. 696. Now the difference between the cafe in Cowper and the prefent is, that the former was the cafe of a cefiuy que truft with a mere equitable title; this is the cafe of a cefiuy que truft having the whole intereft in himself, and alfo being jointenant of the legal eftate. Secondly, Suppofing Robert Scott to have been a jointenant with an intereft in the demifed premifes, and admitting, that regularly jointenants fhould join in perfonal actions affecting their joint intereft, yet the Defendant can only take advantage of this irregularity by plea in abatement, Com. Dig. Abatement, E. 8. which cites Bracton, l. 5. De Exceptionibus, c. 25. "Competit etiam exceptio dilatoria tam ex perfoná alterius quam petentis; quia fine alio, agere non potuit per fe, qui tan"tundem juris habet quam ipfe qui petit; ut funt plures participes," &c., and then inftances hulband and wife, jointenants, &c. 66 So |