enforced in equity, though it be in relation to a separation CHAP. V. which would not be enforced between the parties. (a) OF THE CONSIDERATION. tion. The provision is valid, then, on the separation and while The validity of they are separated, but on reconciliation and cohabitation the deeds ceases it ceases, and cannot be again revived. (b) But if one of on reconciliathe parties, as the husband, be desirous of a reconciliation, and offers again to receive his wife, is the deed of continuing validity? In Guth v. Guth, (c) a court of equity held that if the wife refused to be reconciled, the provision continued, and compelled the husband to continue his payments. Succeeding judges (d) have expressed their dissent from this decision, and have thought that the provision should not be enforced against the husband. But surely it seems to be harsh and unjust to compel a wife to be restored to the company of a man who has already rendered his house insupportable to her. A case has occurred in which a question has been raised whether a deed may not be valid which provides for a future separation, that may be caused by the husband's misconduct. In Exparte Draycott (e) a father, after the marriage of his daughter, covenanted to grant an annuity to her in consideration of her husband's agreeing to settle the same sum upon her in case she survived him, and in case she should separate herself from him in consequence of his misconduct during their joint lives, and not to prosecute her in the ecclesiastical court. The father becoming bankrupt, the husband applied to prove the value of the annuity. But the commissioners thinking the consideration void, as being contrary to the policy of the law, inasmuch as it was a provision for future separation, rejected, the proof. He petitioned the Vice-Chancellor, and Sir A. Hart thought (a) Worral v. Jacob, 3 Mer. 268. (b) Lord St. John v. Lady St. John, 11 Ves. 526; Bateman v. Countess of Ross, 1 Dow, P. C. 245. (c) 3 B. C. C. 614. (d) Lord Rosslyn in Legard v. Johnson, Lord Eldon in Lord St. John v. Lady St. John. See also Head v. Head, 3 Atk. 295. 547; 1 Ves. S. 18. (e) 2 G. & J. B. C. 283. P CHAP. V. OF THE CONSIDERATION. Where the consideration is immoral. the commissioners wrong on this point, and that it was a perfectly good and legal covenant. Afterwards Sir L. Shadwell, without deciding this, thought there was a sufficient consideration in the agreement to pay the annuity to the wife in case she survived her husband, and granted the prayer. For a farther examination of the questions here treated of, so interesting in connubial law, the reader is referred to the elaborate note of Mr. Jacob in his edition of Roper's Law of Husband and Wife, vol. ii. App. Again: the law recognises no contracts which tend to violate private morality. Many of the cases already referred to in some respect have such a tendency in addition to the other objections which have been stated, but there are others which do not readily fall under any of the previous divisions. It is scarcely necessary to refer to the instances usually suggested, where the consideration is the commission of some crime or offence, or the aiding or concealing the offence of another. But a long series of decisions cannot be neglected, which have established that an an nuity, granted to induce the grantee to enter into or continue in a state of unlawful concubinage, is void; while an annuity granted in compensation of the loss of chastity already incurred, and after a separation of the parties from their immoral connection, will be supported and enforced. (a) It is not necessary that the obligor should have been the seducer, for Lord Hardwicke enforced a bond which had been given to a prostitute, (b) though in another case (c) he refused to establish an annuity which the defendant had bound himself to grant to the plaintiff, where the only objection seems to have been that the plaintiff had not been first seduced by him, and probably had not been faithful to (a) March. of Annandale v. Harris, 1 E. C. Abr. 87; 3 B. P. C. 445; 2 P. W. 432. Lady Cox's case, 3 P. W. 339. Cray v. Rooke, C. T. T. 153. Turner v. Vaughan, 2 Wils. 339. Walker v. Perkins, 3 Burr. 1568; 1 Bla. 517. Gilham v. Locke, 9 Ves. 612. (b) Hill v. Spencer, Amb. 641. him during their cohabitation, but the case seems to have been ultimately settled by some arrangement. In a case (a) which also came before the same Lord Chancellor, where a young woman claimed an annuity granted to her by a married man who had seduced her, and with whom she had lived, well knowing of his marriage, the bill against the grantor was dismissed, certainly upon the ground that the adultery was an aggravation, and manifestly tended to destroy the peace of families. But it is now decided that the law will not measure with nice discrimination the different shades of immorality. And therefore though in Mathews v. L-e, (b) a married woman having cohabited with a man, the Vice-Chancellor seemed to intimate an opinion that the case differed from that of an unmarried woman who lives with her seducer, yet in Nye v. Mosely (c) the Court of King's Bench held expressly that there was no authority for the distinction, and decided that where a woman lived in an adulterous connection with a married man, of whose marriage she was perfectly cognizant, the annuity, which he settled upon her and her child after separation, was legal and valid. The validity of the grant is not affected by any subsequent matter, and therefore a resumption of the immoral connection after the annuity has been granted, if there have been a real and honest discontinuance of the cohabitation, will not invalidate the security. But as the discontinuance may have been for the purpose of evading the rule of law, it is a question of fact to be determined by a jury whether there had been an honest intention to separate or not. (d) If on the resumption of the connection the obligor maintains his mistress, she will not be allowed in a court of equity to claim the annuity, at least where it appears to have been settled upon her for her maintenance. (e) (a) Priest v. Parrot, 2 Ves. S. 160. (b) 1 Mad. 558. (c) 6 B. & C. 133; 9 D. & R. 165. Ch. 114. (d) Friend v. Harrison, 2 C. & P. 584. (e) Loyd v. Carter, 2 Atk. 85. See also Spicer v. Hayward, Pr. CHAP. V. OF THE CONSIDERATION. CHAP. V. OF THE There is no objection to the grantor making it a condiCONSIDERATION. tion in the grant that the grantee should live single after Where there is an error in the consideration. their separation. (a) Lastly, if the consideration be effected by mutual error, and the parties be each equally innocent of any fraudulent intent, it may be presumed that the annuity would not be supported. As if, for instance, the annuity were granted on a life supposed to be in existence at the time, whereas, in truth, such life had expired. (a) Gibson v. Dickins, 3 M. & S. 463. CHAP. VI, OP THE SECURITY. CHAPTER VI. OF THE SECURITY. As an annuity is a contract to be performed at future Necessity of periods, it is always desirable to obtain some fund upon rity for the payobtaining secuwhich a charge may be so laid as that the performance may ment. be duly enforced. Where the consideration is valuable, as money or the relinquishment of a business, the one party executes his part of the contract at once by the payment of the money or retiring from the trade, he is therefore naturally anxious to obtain as full a security as is possible from his co-contractor for the fulfilment of his part. He therefore seeks to bind all the property of the grantor, and according as that property is or is not chargeable or available, the terms on which the annuity is negociated are higher or lower. Thus he endeavours to obtain a charge on the lands of the grantor, or upon his assignable property, and a power from time to time to attach his personal estate. The charge upon the lands is either by the grant of the rent charge with a power of distress or a power of entry, or it is by the creation of a term of years, or even of a greater estate, which is vested in trust for the benefit of the grantee, the trustee being directed either to enter on default of payment, or to enter forthwith, and pay the annuity out of the rents and profits of the land taken by him, or even to sell and dispose thereof in discharge of the arrears. Where the grantor has a fund which accrues to him periodically as a stipend or salary, he may charge that in various ways according to its nature, as by creating a trust and directing the trustee to receive the same aud pay the annuity out of the receipts, or he may at the first authorise the grantee to receive the payments and satisfy himself. |