A.-G.

"'.

THE COR

I must therefore declare, that the 3 per cent. Bank Annuities were held by the corporation in trust to apply the dividends in or towards the repairs of the bridges and walls; and that the PORATION OF injunction &c. already granted ought to be continued.

SHREWS-
BURY,

BLACHFORD v. KIRKPATRICK.

(6 Beav. 232—238; S. C. 12 L. J. Ch. 108.)

Even after great delay and acquiescence, the Court will not compel a purchaser to complete, if the title appears to be manifestly bad.

The right to the tithes of an allotment generally follows the right to the old tenement, in respect of which the allotment is made.

Contract for the purchase of tithes not signed by the party chargeable, held, under the circumstances, to have been taken out of the Statute of Frauds.

MESSRS. JAMES AND JOSEPH KIRKPATRICK were owners of a renewable lease, under Winchester College, of a farm called St. Cross, in the parish of Carisbrooke; to this farm there was appurtenant a right of common over the forest of Parkhurst.

In 1812 an Act passed for enclosing the forest; but the right to tithes was not thereby interfered with. Under the powers of this Act, Messrs. Kirkpatrick had awarded, in respect of the St. Cross farm, 130 acres of the forest situate in the parish of Carisbrooke.

In 1812 the plaintiffs, or parties represented by them, assuming to be entitled to the tithes of the allotment of 130 acres as lay impropriators of the parish of Carisbrooke, agreed to sell to the Kirkpatricks the rectorial tithes of such allotment for the sum of 7001. It did not appear that any agreement in writing was signed by the purchasers. An abstract of title was delivered, and the purchasers prepared a conveyance, which, in 1819, was submitted to and approved of by the vendors. It was not however executed; the reason for which did not however appear. Interest had been paid on the purchase money down to 1835, at the rate of 4 per cent. The purchasers died, and the matter being mooted in consequence of the discontinuance to pay interest, the abstract was, in 1836 found, when it appeared that, by a deed of 1758 under which the vendors claimed, the tithes of St. Cross farm were excepted out of the grant to them of the rectorial tithes of the parish of Carisbrooke. *The defendants thereupon contended that, as the vendors had no title to the tithes of St. Cross farm, they had none to the allotment made in respect of that farm.

R.R. VOL. LXIII.

5

1842. Nov. 16, 19.

Rolls Court.

Lord LANGDALE, M.R.

[232]

[*233 ]

BLACHFORD

v.

KIRK

PATRICK.

[ *234 ]

[ *235 ]

In 1838 this bill was filed for a specific performance, and for a declaration that the purchasers had accepted the title.

The defendants said, that the farm consisted of North St. Cross and South St. Cross; that the former was tithe free, and that the tithe of the latter had been purchased by the Kirkpatricks in 1810. That no tithes were therefore payable in respect of the allotment, though the parties had acted under the erroneous supposition of the contrary. They insisted that there had been no contract in writing signed by the purchasers, and claimed the benefit of the Statute of Frauds.

Mr. Pemberton and Mr. Prior, for the plaintiffs:

**

There has been a possession and enjoyment of the tithes since 1812, a payment of interest on the purchase money, an approval of the title, and a settlement of the conveyance. It is now too late to say that there is no contract in writing.

*

*

Mr. Boteler, Mr. George Turner, and Mr. Piggott, for the defendants:

The contract, even if valid, was entered into under a mistake, and on the supposition that the vendors, and not the purchasers, were entitled to the tithes. The Court would relieve in such a case, even after payment of the purchase money: Bingham v. Bingham (1).

If the plaintiffs have no title, it would be a strong measure of equity to compel a purchaser to pay his purchase money without receiving the property in return. This Court would not force a bad title on a purchaser: Warren v. Richardson (2).

It is plain that the vendors have no title. The tithes of the allotment belong to the party entitled to the property in respect of which the allotment is made: Steele v. Manns (3). It appears from the deed of 1758, which is the root of the plaintiffs' title, that the tithes of the St. Cross farm did not pass to them; and it appears further, that, so far as tithes were payable, they were purchased in 1810 by the Kirkpatricks.

There is no sufficient signed contract, nor has there been an acquiescence, the delay in completing has most probably arisen from this very objection. There has been no possession taken; for tithes were never payable in respect of the allotment, and therefore cannot be said to have been retained.

(1) 1 Ves. Sen. 126.

(2) 34 R. R. 251 (Younge, 1).

(3) 5 B. & Ald. 22.

Mr. Hale, in the same interest.

Mr. Pemberton, in reply.

THE MASTER OF THE ROLLS:

I confess, I feel very considerable difficulty as to part of this very singular case, considering the great length of time which has elapsed since the contract was entered into.

It

The plaintiffs are asking for a conveyance, in pursuance of a contract entered into in the year 1812. The defendants have set up several defences, which, upon the best consideration I can give them, and having regard to the great length of time which has elapsed, and to the acquiescence of the party in the terms of the contract during the whole of that time, I think cannot be sustained. appears to me, that there is sufficient proof of the contract being entered into in this case by Joseph, on behalf of Joseph and James. It is sufficiently proved, as it appears to me, that both parties intended to complete this contract in the year 1816; and that, at that time, both parties had approved of the title, and had acquiesced in it in a most extraordinary and emphatic manner, there being on the one side a payment of the interest of the purchase money, avowedly as such, and on the other side, the constant acceptance of the interest, as the interest of the purchase money.

Now without meaning to say that the single circumstances here set forth would, in themselves and without the lapse of time, be held to be an acquiescence in and confirmation of the contract, and a sufficient proof of the existence of a valid contract, yet, having regard to the length of time, I must say, that, in my opinion, they must be so held. This does not get over the difficulty I feel in the present case; for if the parties delay asking for the specific performance of a contract and for a conveyance of the legal estate, as they might do, and in the interval before the contract is completed, and while the purchase money is in the hands of one party, and the legal estate in the other, it should turn out, that that title which had been supposed to be good, was really a bad title, I am not prepared to say, that this Court, knowing the title to be bad, would order the party to accept it, and pay the purchase money for it. That is what is alleged at the Bar to be the case in the present instance, though it is by no means stated on the pleadings in a way that such a defence, in my opinion, ought to have been stated. Having read these answers, I find nowhere an intimation of a

BLACHFORD mistake, except in the answer of James Kirkpatrick; there is there

v.

KIRKPATRICK.

[ *237 ]

[238]

an intimation of a mistake which both parties were under, that, although St. Cross farm might be free from the payment of tithes, and although a portion of the tithes of St. Cross farm might have been purchased by the defendants, yet nevertheless, it was believed that the impropriator or the person entitled to the tithes of the forest would be entitled to the tithes of the allotment. This, it is suggested, was the mistake on which both parties at the time proceeded.

On that point, it seems to be now stated, that a conveyance of the tithes of the farm of South St. Cross had, *in the year 1810, been made to the Kirkpatricks. It is alleged that the North St. Cross farm was free. That had nothing whatever to do with any allotment; but the contract is for the sale of the tithes of the allotment: both parties, as it is said, then thinking that the tithes of the allotment remained in the Blach fords, although the tithes of St. Cross farm or part of St. Cross farm might belong to somebody else.

It is said that the case of Steele v. Manns (1) was decided after the date of the contract, and after the negotiation between these parties, and that there was some new law propounded. I do not think it was. It was clear that the tithes of an allotment follow the fate of the tithes of the land in respect of which the allotment is made, unless there be some special circumstances.

Then it is said there are some special circumstances here. The right of the Blachfords to the tithes and the right of common of the persons who were entitled to the old tenement named Carisbrooke, extended over three different parishes, and certain extraparochial places. It might therefore have happened, that the allotment was not made in the parish of Carisbrooke, where the old tenement was, but might have been made in other parishes, or in the extra-parochial place. It is stated, however, in answer, that it appears the allotment was made in the parish of Carisbrooke. I must, however, say it appears to me, that if the party intended to rely on these circumstances, they ought to have been brought forward in a manner more distinctly than has been done. I will not presume to say what was the real state of this title, but this I think I must state, that if it did appear to the Court that there the vendor had no title at the time this contract was entered into, and the matter being left, by the acquiescence of both parties, as it certainly must have been, in the same state, the money being in the (1) 5 B. & Ald. 22.

hands of the purchasers, and the legal estate, such as it was, in the BLACHFORD hands of the sellers, this Court would not, knowing there was a bad title, order a conveyance to be made and accepted.

I think the best course I can pursue upon it is this: take it for granted at this moment, that the plaintiffs suppose they can make out that in the year 1819 a good title could have been made. If a good title could have been made at that time, then I think all the rest is proved here, and that there ought to be a payment of money and conveyance; but if it should turn out that in the year 1819 a good title could not have been made, I do not know what would be the effect of the length of time that has since elapsed. Whether a good title could have been made at the time when that extract was examined by these parties, is the question. I think there ought to be a reference to ascertain whether a good title could be made in 1819, if the plaintiffs desire or are willing to take it, rather than have the bill dismissed. If the bill is to be dismissed, it ought to be dismissed without costs.

Declare that there was a binding contract, which ought to be performed, if a good title could have been made on the 18th of June, 1819, and refer it to the Master to ascertain that fact.

KIRK

PATRICK.

MATTHEWS v. BRISE (1).

(6 Beav. 239-245; S. C. 12 L. J. Ch. 263; affd. on appeal 15 L. J. Ch. 39;

10 Jur. 105.)

Where a trustee has trust money in his hands which he is authorised to lay out in the public funds or on real security, he is justified, pending the necessary delay in completing a contemplated mortgage security, in investing the money in Exchequer bills.

1843. March 11.

1844. Nov. 8, 9, 11.

1845. Dec. 20, 22.

Rolls Court.

Lord

A trustee properly invested trust money in Exchequer bills, but he left them undistinguished in the hands of a broker; upon a misapplication LANGDALE, of them by the broker, held, that the trustee was personally liable.

A trustee was empowered to invest in the public funds or on real security. He had in his hands a sum, which, in the interval between receiving and investing in a contemplated real security, he invested in Exchequer bills, which he left in the hands of a broker, who misapplied them: Held, that the trustee was liable for the value of the Exchequer bills at the time of the loss, and not for the stock which the money would have purchased.

THE defendant Brise was the sole executor and trustee under the will of the testator, who died in 1834. The defendant, in 1839, realised part of the estate of the testator, which he deposited with a banker. The defendant, who by the will was empowered to invest this sum in Parliamentary stocks or public funds of Great Britain, (1) Speight v. Gaunt (1883) 9 App. Ca. 1, 53 L. J. Ch. 419, 50 L. T. 330.

M.R.

On Appeal.

Lord

LYNDHURST,

L.C.

[ 239 ]