CHAP. II. THE PARTIES. CHAPTER II. OF THE PARTIES. BEFORE adverting to the form of the transaction, or the instruments by which it may be evidenced, conveyed, and secured, it will be more in order to consider the parties to the contract. It may be stated, generally, that all persons who have Who may be capacity to execute any deed may be the grantors of grantors. annuities, whether such persons be politic or natural. With regard to corporations, there seems to be no restraint Corporations. upon their granting annuities, if they do not charge funds. which they hold merely as trustees, and do not fall within the restraining statutes, which will be stated hereafter. It must be noticed, however, that by the late act, 2 & 3 Will. IV. c. 69, municipal corporations are prohibited from spending or charging the corporation funds for any parliamentary election purposes. The king, indeed, cannot The King. now create a rent so as to be a charge upon the crown lands, although formerly his power over them was unrestricted; (a) but, as to annuities, he may grant any pensions, so that he do not exceed the amount of his revenue settled by the civil list. As, however, the king cannot be personally responsible, he must specify in his grant who is to pay the annuity, otherwise it will be of no avail. (b) While there are various pensions which the legislature have authorised the crown to grant to officers of the crown on their retirement, and which are charged upon the consolidated fund of the kingdom. The government also, as was observed in the introductory essay, grants annuities through the instrumentality of certain commissioners, in the form and under the regulations appointed by Act of Parliament, 10 Geo. IV. c. 24. (a) Com. Dig. Prerogative, D. 88. (b) F. N. B. 152; Salk. 58; Dyer, 92, b. CHAP. II. THE PARTIES. GRANTORS. nities em Certain communities have been incorporated, either by the legislature or the king's charter, for the express purCertain commu- pose of granting annuities, of which common instances occur in the public insurance and annuity companies. And grant annuities. there are many private associations of individuals who have combined, according to various rules and regulations, mutually to grant or secure annuities to themselves or their relatives. powered to Local trustees. Churchwardens a parish. A power to grant annuities for the loan of money is usually inserted in most Acts of Parliament passed for the creation of turnpike trusts, or for the making of canals or docks, or for similar local purposes; and in some instances the terms on which the annuity shall be granted are ex-pressly limited, to prevent any improper or extravagant loans.(a) The statute 59 Geo. III. c. 12. s. 15. has also conferred and overseers of a power upon churchwardens and overseers of a parish, who are not otherwise a corporate body, to grant annuities for parochial purposes. So by 3 Geo. IV. c. 72. s. 6. Churchwardens churchwardens and chapelwardens may grant annuities in order to raise money for the building and repairing of churches. and chapelwardens. Where an Act of Parliament authorizes the raising a sum of money by annuities, care must be taken not to exceed that sum, for the Courts are strict in their construction of the authority, and will not sanction any rates which may be imposed for the payment of the whole sum, a part of which exceeds that, the raising of which is authorized, since not only is the rate bad for the excess, but where it is general it is bad for the whole. (b) If the rate can be any way severed, so that there appears to be a distinct rate for the excess, then it seems that that only would be bad, and the other might be supported. The restrictions above referred to, as imposed upon ecclesiastical and collegiate corporations, prevent them from (a) See Wilde, Supp. to Bart. Con. vol. iii. p. 96. (b) Richter v. Hughes, 2 B. & C. 499. THE PARTIES. GRANTORS. themselves and charging their possessions, and will be considered more at CHAP. II. length in a subsequent chapter. But it seems not altogether out of place to notice here, that where a society or Associations company is formed upon the plan of raising a fund by cannot dissolve annual or other subscriptions, out of which annuities are to divide funds, so be paid to themselves, after a certain age, or to the widows as to disappoint existing claimor children of the subscribers, on their death, or on any ants. other contingency, the members become trustees of the fund so raised, for the benefit of the different claimants, and will not be allowed to dissolve the society, and distribute the collected funds, if there be any persons entitled to the payment of annuities, under the covenants or regulations of the society. The claimants have a vested interest in the fund, which will be protected by a Court of Equity, though through miscalculation or error in the formation of the association, the subscriptions become insufficient for the payments, according to the original proposition. Probably the existing subscribers may withdraw, and abandon their contingent interest in the fund, and thus relieve themselves from their liabilities; but this will depend upon the terms of the covenants which they have entered into. These observations were deduced from a case (a) which occurred in Ireland before the Court of Exchequer, where an application was made with success by the widows of the members of an annuity company in that kingdom, to restrain the surviving members from dissolving the society and dividing the funds. In this country there have been some cases (b) which establish that the company cannot dissolve itself, so as to defeat the claims which arise under the original engagement. But on an application to a Court of Equity, an inquiry will be there instituted as to the state of the association, as to the correctness of its constitution, and whether its object may be effected by any reasonable modification of the plan, either in the increase of the subscription, or in the diminution of the annuities; and there will be a decree for that (a) Cartland v. Lyster, Ridg. Lapp. and Lef. R. 280. (b) Pearse v. Piper, 17 Ves. 1; Buckley v. Cater, ib. cit. Reeve v. Parkins, 2 J. & W. 390. CHAP. II. THE PARTIES. GRANTORS. Natural and sons. Exceptions. men. which may be the result of the inquiry. Should it be found impossible to sustain the society, the Court will make such a distribution of the funds yet remaining as under the circumstances of each particular case may be adjudged advisable and equitable between all the parties. It is manifest, therefore, that the members of the society will generally act most prudently by referring their disputes in the first instance to some actuary or person conversant with the details of such subjects, as that will ultimately be the result of any application to a Court of Equity. Referring now to natural persons and individual grantors, individual per- it will be found that they stand, for the most part, in the same situation as the makers of other contracts, and are subject to the same exceptions. The first exception that may be mentioned, is that of married women. The law recognizes no property in them, and therefore their grants are void. It is expressly stated in Perkins (a) that if a feme coverte grant an annuity by deed, this grant is void. But though the husband is entitled to the enjoyment of his wife's real estate during his life, yet she has so far a power over it, that she can join with him in the grant of a rent by means of a fine or recovery, which shall charge her lands. Any grant by herself without her husband's knowledge and assent, or in her own name alone, though with his assent, will be void.(b). It matters not that the husband be abroad, so that his existence is uncertain: if in fact he be alive, the grant cannot be supported; in corroboration of which may be mentioned a late case (c) in the Common Pleas. A rent charge payable to a feme coverte for her life was sold for a valuable consideration by herself and her husband, who received the purchase money, and both executed the deed of conveyance. The husband was separated from his wife, and she was ignorant where he was to be found, though she had made diligent search for him. On an application that the wife might be allowed to levy a fine of the rent charge without her husband, the Court refused to interfere. (a) Grants, s. 6. (c) E. p. St. George, 8 Taun. 590; 2 Mo. 652. (b) Ib. And it was also holden that if, on a separation, certain lands be assigned to her by her husband, she cannot in her own name grant a rent thereout. (a) If, however, she grant a rent out of her own lands, by fine, as a sole woman, and her husband and herself do not reverse it during the coverture, she will be bound by the grant after his death. (b) There does not appear any authority for carrying this position to the case of a mere deed by her as a feme sole, without the fine. CHAP. II. THE PARTIES. if he survive. Her husband can only bind the land during his life, Husband bound unless she join him in a fine or recovery; yet if he survive, and her interest, whether in the estate or in chattels real, vest in him, the charge will be valid against him so far as that interest extends. (c) Married women may grant by Although a married woman cannot thus alone make a legal grant, she may through the exercise of powers, where means of any such have been given, create such charges, if the autho- powers. rity given to her be duly pursued; for she is considered merely as the agent or attorney of the party who created the power, and her charge is, as it were, that party's disposition. (d) A Court of Equity, however, acknowledges the separate Wife's grant may be valid in property of a married woman, and accordingly her contracts a Court of are there enforced. Therefore, where property is conveyed Equity. to her separate use, she has the full disposition of it, and may grant an annuity, which shall be a charge thereon. Thus where property is conveyed to trustees to pay the annual produce to a married woman, to her separate use, or into her hands alone, she may assign the same as a security for the grant of an annuity. In one case, (e) indeed, Lord Rosslyn refused to enforce the wife's grant of an annuity secured on her separate estate, because he doubted whether she could give such security, and because her trustee had given notice to the purchaser of the annuity that he would not consent to it. But that case is wholly (a) Perk. Grants, s. 8. (b) Ib. s. 20. (c) 1 Pres. Ab. 343; Co. L. 184. b. (d) Sugd. Powers, 156. (e) Mores v. Huish, 5 Ves. 692. |