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Courts have been right in insisting that the memorial must state the proviso, it ought also to contain the terms.
Eyre Ch. J. If the 17 Geo. 3. c. 26. had gone no further than the first clause, we must have looked to the import of the words of that clause; and the practice of the Register Counties. There they enter no more than a memorandum, containing the names of the parties, the dates, the premises, 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 inserted; namely, the date, the names of the parties, and for whom they are trustees, the witnesses, the annual fum, the name of the person for whose lives the annuity is granted, ·and the consideration or considerations. Now, unless under the word “confiderations,” I cannot say that the terms of the proviso are included. I should incline to go fome length for the sake of general utility to decide that the terms must be set out in the memorial, but I doubt whether the act requires it. The word “ considerations,” in the act, may mean mere money considerations. In the case where the Courts have held it necessary to insert the proviso of redemption in the memorial, it has been indorsed on the deed: and has therefore been considered either as a separate deed, or as something collateral to the decd itself, and essential to be set out as a superadded part of the security. In the case of a proviso in the body of the deed, I doubt whether on the general idea of a memorial, or the specific description of it in this act, it need be inserted. I am not therefore prepared At present to consider this memorial as insufficient. It is a memorial only, not a copy of the deed: it states a deed for securing an annuity redeemablo s on the terms therein expressed;" for which reference may be had to the deed itself. 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 ftated that the act was made for the benefit of the grantor, who has parted with the deeds: I cannot subscribe to that proposition: it was made for the benefit of mankind in general, that the world might know the nature of such transactions, and the parties be restrained by a sense of Ihame from entering into them. The policy of the law would be amply satisfied by a memorial like the present; it answers all fubftantial purposes, for it cannot be necessary to load it with the full contents of the deed which would be little short of requiring a copy. But if my Brothers should be of a different opinion, I should with to take time to consider,
BULLER J. I have considerable doubts upon this question : and cannot quite coincide in the opinion of my Lord. I should fooner say that the proviso need not be inserted at all, than that it thould be inserted in this general way. The question is, Whether the proviso be part of the confideration or not? Look through the act. It was there intended to include money confiderations only, and one clause actually says “ in money only.” If then the word “considerations” means money considerations only, a provifo is not within the terms of the act. But the point has been already settled, both here and in the King's Bench, and I am not disposed to disturb what has been settled by two determinations, though the act does not appear to go that length. Having get thus far, that the word " confiderations" includes all the terms of the agreement, the remaining question will be, Whether the prefent proviso be sufficiently ftated ? I admit no difference between the case of a provifo indorsed, and a proviso 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 instrument. If then the provifo is to be taken notice of at all, is it not to be taken notice of fubftantially ? The act in my opinion was made for the benefit of the grantor, as well as the public. Let us see 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 seven years? Is it not of importance that he thould have it in his power to prove all the material facts out of the mouth of the party himself: that he may be able to come to the Court, ftate the specific terms, and demand the deed on compliance with the proviso? The terms therefore not being inferted, I think the proviso insufficiently ttated, and if so, that the annuity Thould be set aside.
Ileath J. I have great doubts upon this queftion. There is no analogy between the register acts and the 17 6.3. The former were made for the benefit of purchasers: the latter to throw a fence about the grantors of annuities, who are usually incautious and extravagant. What my Brother Buller has faid appears extremely forcible, that the grantor ought to know the precise terms on which the annuity is redeemable: he would otherwise be left in great doubt and difficulty, unless he has kept a copy of the VOL. I. F
deed, which is rarely done. Asit has been heldnecessary to register a proviso, it must be shewn on what terms the provifo is to take effect: and I fee no difference between a proviso inserted in the body of the deed, and one indorsed on the back of it.
ROOKE J. I am inclined to think the memorial insuficient. The proviso is a part of the consideration. Every circumstance in favour of the grantor is a part of the consideration; for all such circumstances form the ground of the grant, and if every such 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 expressed,” is not a satisfactory statement. I think however that this matter requires further consideration.
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 question, and the result is, that we all think, that where an annuity is redeemable, the terms and conditions of redemption ought to be set forth in the memorial, in order that the party who is to have the benefit of such redemption, may without being driven to any compulsory means, be apprized of those terms and conditions, and máy redeem it with most ease and convenience to himself. The consequence is that we must make
The rule absolute. (a)
(a) When this matter was first moved, enter into the validity of the warrant of Williams Serjt. Itated that no action had " attorney or judgment upon motion, in been brought on the bond, nor any judg- " the particular application under the act, ment entered up on the warrant of attorney, “ will only set aside the judgment or execu. but cited Ex parte Cheller, 4 T. R.694.10 “ tion, or vacate the warrant of attorney ; Niew that the Court had nevertheless a ju- “ but the jurisdiction does not extend to rifdiction. The Court said " that every “ ordering the bond to be delivered up, " warrant of attorney entered was subject “ and if ever done, it has been done inad" to their cognizance, but that they could " vertently." Que therefore, Whether the * not in all cases order all the pruceedings rule in the present case was not made abso" to be cancelled, because they were void lute in the form in which it was moved « by the rit lection of the act.” So in through inadvertence? Duke of Bolton v. Williams, 4 Brown Chan. See these cases collected and digested in Caf.310. and 2 Vez. jun. 154. Lord Longih- Hunt on the Annuity A&, 2d Edition, borouglo said, “ The courts of common-law, published 1796. “ which will upon their general juritdi Aiun
on a covenant
John ScoȚt v. Godwin.
Pauly 5th. 1 Ea?, 499.
5 Eal, 2111 THI 'His was an action on a covenant contained in a lease, by i B. & Pwl.
which the Defendant had agreed to repair certain premises, 465. of which he was tenant, at his own costs and charges.
2 Bf.Pull, The declaration stated in substance as follows:--- That one
Tlie reverfion of
lands demited to Thomas Grice was feised of the reversion of the premises in quef- the Defendant tion in his demesne as of fee, subject to a mortgage term of 500
years, is cons
veyed to A and Fears, which term was subject to be defeated, and was defeated B. and the heirs before the making of the indenture thereinafter next mentioned ; A and his heires: that by an indenture made between the said Thomas Grice and the A.declares fingly Defendant, the said Thomas Grice demised the premises in quef
contained in the tion to the Defendant for a term of twenty-one years; that the lease, and af er Defendant covenanted to repair at his own costs and charges; letting out the that the Defendant entered, and became poflefled, and that the out averring the faid Thomas Grice was seised of the reversion in his demesne
dea h of B,
ftates himlelf to of fee; that being so feised, the said Thomas Grice devised the be " thereby faid reversion to his fun and died: that the fon together with eiled of the certain persons having mortgage claims upon the premises by « demelie, as of lease and release conveyed the said reversion to John Scott and fee.” This is Robert Scott, to have and to hold the same unto the said John murrer.
bad upon de“ Scott and Robert Scott, to the only proper use and behoof of “ the faid John Scott and Robert Scott, and the heirs and asiigns * of the said Robert Scott for ever, but nevertheless as to the “ eftate and interest of the said Robert Scott, his heirs and assigns
therein, in trust for the faid John Scott, his heirs and alligns for “ever. By means of which faid premises, the said John Scott be“ came, and was, and fiill is feised of and in the faidreverfion inhis “ demesne as of fee, &c. That although John Scott had ever fince the faid reversion came to him by allignment as aforesaid, kept the covenants on his part, yet the Defendant had broken his covenant bydelivering up the premises out of repair. Damages, 8c.
To this there was a special demurrer, asligning several causes (which were afterwards abandoned) and joinder therein.
Shepherd Serjt. for the Defendant. I shall not argue the special causes of demurrer, but rely on a fubftantial defect on the record. The declaration is here in the name of one, whereas the legal estate in reversion 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 reversion is must bring the action. Now John and Robert Scott may be jointenants for their lives, although
Robert had a feveral inheritance. Co. Lift. 182. a. 2 Black, Comm. 181. It is true that the interest of Robert Scott and his heirs was in trust for John Scott; Cut that can make no difference in the legal eftate, and John Scott's estate in severalty was merely equitable. It is said, Co. Litt. 180.6. “ that jointenants must "jointly implead, and jointly beimpleaded by others.” Supposing them however to be tenants in common, still they must join in this action. Co. Litt. 197.6. There is a distinction between actions for realty and actions for personalty; in the former, the parties may sever, because each may recover his share; but in the latter, not. Here the covenant is for not repairing, in which case damages are to be given ; and how shall each have his damages apportioned ? But there can be no doubt of John and Robert Scott being jointenants, who were so made in order to bar John Scott's wife of dower. Besides John Scott, as assignee of the reversion, must bring his action of covenant under 32
H. 8. c. 34. and thereby stands in the same situation as the leffor.
The covenant therefore must be considered as being made to both John and Robert, which renders it impoffible for John to bring this action alone.
Marshall Serjt. for the Plaintiff. First, I shall contend that Robert Scott is a mere trustee, introduced into the conveyance to preclude John Scott's wife from having her dower, and solely for the benefit of John Scott the ceftuy que trust; and it is now a settled rule of law that an estate in truft merely for the benefit of the cestuy que trust, hall not be set up against 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, Cowp. 46. and recognized by Lord Kenyon, in Doe v. Staples, 2 T. R. 696. Now the difference between the case in Coreper and the present is, that the former was the case of a cesiuy que trust with a mere equitable title; this is the case of a cesiuy que truft having the whole interesi in himfelf, and also being jointenant of the legal estate. Secondly, Suppofing Robert Scott to have been a jointenant with an interest in the demised premises, and admitting, that regularly jointenants should join in personal actions affecting their joint intercft, 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 perfonâ alterius
quam petentis ; quia fine alio, agere non potuit per fe, qui tan“ tundem jurishabet quam ipfe qui petit; ut fiunt plures participes, &c., and then instances husband and wife, jointenants, &c.