Doe on the demise of Willis and Others v Martin and Others
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1790 |
| Date | 19 November 1790 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 882
IN THE COURT OF KING'S BENCH
doe on the demise of willis and others against martin and others. Friday, Nov. 19th, 1790. By a marriage-settlement lands were conveyed to trustees to the use of the wife for life, remainder to the use of the husband for life, remainder to the use of all and every the children of the marriage, or such of them, and for such estates, &c. as the husband and wife should appoint; and for want of such appointment, to the use of all and every the child or children, equally, if more than one, as tenants in common ; and if but one, then to such only child, his or her heirs or assigns for ever; remainder over; in the deed was contained a power enabling the settlers to revoke the uses of the settlement, and the trustees to sell the estate, and convey it to a purchaser, so as the purchaso-money should be paid to the trustees (and not the settlers) and invested in the purchase of other lands to the same uses; it was held, that the remainder to the children was a vested remainder in fee in each child when born, liable, however, to be divested by an appointment by the parents ; and consequently (no appointment having been made) that the remainder to the children could not be defeated by a deed of revocation by the parents and a conveyance by them and the trustees to a purchase, who paid the consideration-money to the settlers (not to the trustees) which was never laid out in the purchase of any other lands. That power of revocation was conditional; and as the conditions, namely, the payment of the money to the trustees, and the settling of other estates to the same uses, were not performed, the deed of revocation was a nullity.-Fraud will vitiate 4T.R.40. DOE V. MARTIN 883 any transaction, though the principal do not personally take any part in the fraud, if his agent do; for the principal is civilly responsible for the acts of his agent. [6 East, 289, 494. 1 Taunt. 289.] [Principle applied, Cholmeley v. Paxton, 1825-30, 3 Bing. 214; 11 Moore, 27; 10 B. & C. 572; 5 M. & K. 517; Heron v. Stokes, 1842-45, 4 Ir. Eq. R. 285; 2 Dr. & War. 100; 12 Cl. & F. 161. Referred to, Bochfort v. Fitzmaurice, 1842, 4 Ir. Eq. R. 379; 2 Dr. & War. 15; Phipps v. Ackers, 1842, 9 Cl. & F. 600; Bart v. Tulk, 1852, 2 De G. M. & G. 314. Distinguished, Wafkins v. Williams, 1851, 3 Mae. & G. 632. Referred to, Lambert v. Thivaites, 1866, L. R. 2 Eq. 155. Applied, RotherJiam v. Eotherham, 1884, 13 L. R. Ir. 453. Referred to, Board of Works v. Symes, 1892, 32 L. R. Ir. 602.] This was an ejectment for some premises in the Isle of Wight, on the joint and several demises of Richard Legg Willis, James Willis, Bethia Ann Willis, and Mary Willis, and on the trial at the Summer Assizes at Winchester, 1789, before Buller, J. a special verdict was found, stating in substance as follows : That Bethia Legg, being seised in fee of the premises in question, on her intended marriage with Richard Willis, by deeds of lease and release, dated the 14th and 15th of February 1757, between Richard Willis of the first part, Bethia Legg of the second part, arid Peter Bracebriclge and Robert Willis of the third part, conveyed to Braeebridge and Robert Willis and their heirs to the use of herself in fee till marriage, and afterwards, to her sole and separate use for life, without impeachment of waste, and not to be subject to the controul or debts of her husband ; remainder to the use of Richard Willis for life, without impeachment of waste; remainder to the use of all and every the child or children or such of them of Richard Willis and Bethia for such estates and interest, &c. and in such parts, ahares, and proportioDS as Richard Willis and Bethia should by deed [40] appoint, and for want of such appointment, then to the use of the child or children of Richard Willis and Bethia in such parts, shares, and proportions, and for such estates and interest, as the survivor of them should by deed or will appoint; and for want of such appointment, then to the use of all and every the child or children equally, share and share alike, to hold the same; if more than one, as tenants in common, and not as joint tenants; and if but one child, then to such only child, his or her heirs or assigns for ever; and in default of such issue, then to the use of the survivor of Richard Willis and Bethia in fee. The deed contained the following proviso: that in case the said Richard Willis and Bethia, bis intended wife, or the survivor of them, should at any time thereafter be desirous to make sale of the said manor, &c. or any part thereof, then and in such case it should and might be lawful to and for the said Richard Willis and Bethia, his intended wife, or the survivor of them, at any time or times thereafter, by any writing or writings to be signed or sealed by the said Richard Willis and Bethia, his intended wife, or the survivor of them, to revoke and make void all and every or any the use and uses, trust or trusts, estate or estates, therein respectively before limited, and declared of and concerning the said manor, &c. with the appurtenances; and for the said Philip Bracebridge and Robert Willis, or the survivor of them, his heirs and assigns, to sell and dispose of the same, for the best price that could or might be had or gotten for the same, and convey the same to a purchaser thereof, "so as that the purchase-money thereof should be paid into the hands of the said Philip Bracebridge and Robert Willis, or the survivor of them, his heirs and assigns, and not into the hands of the said Richard Willis and Bethia, his intended wife, or either of them, to be laid out and invested by the said Philip Bracebridge and Robert Willis, or the survivor of them, his heirs or assigns, in the purchase of other freehold messuages, lands," &c. at the request of the said Richard Willis and Bethia, his intended wife, or the survivor of them, to be settled to the same uses, trusts, intents, and purposes, as were therein before limited, &c. It was also provided, that the trustees might invest the purchase-money in Government or other securities in their names, and pay over the dividends to the persons who would have been entitled to the profits of the real estates. And for the security of the purchaser of the estate, it was agreed that the payment of the purchase-money unto the trustees, &c. should discharge such purchaser, notwithstanding any loss or misap-[41]-plication that might happen to such purchase-money. The verdict then set forth, that on the 3d March, 1757, the marriage between Richard Willis and Bethia Legg took effect; and that 884 DOE V. MARTIN 4 T. R. 42. they had several children; (to wit) Kicbard Legg Willis, their eldest son and heir, James Willis, Bethia Anne Willis, and Mary Willis, the lessors of the plaintiff; and also one Thomas Willis, since deceased. That Robert Willis survived Philip Brace-bridge, his co-trustee, and by will appointed Mary Willis his widow, and Richard Willis his brother, executor and executrix thereof, and in January, 1765, died, leaving Robert Willis an infant, his only son and heir at law; which last-mentioned Robert Willis, at the time of executing the indentures of 14th and 15th April, 1767, hereafter mentioned, was of the age of five years. That on the 17th of September, 1766, the first-mentioned Richard Willis, the lessor's father, being insolvent or much embarrassed in his circumstances, contracted and agreed with Joseph Martin, now deceased, for the sale of the said manor, &c. for 76801.; and that before and at the time of making the contract, and from thence atid until and at the time of executing the indentures of the 14th and 15th April, 1767, hereafter mentioned, Joseph Cruttenden, attorney at law and one of the solicitors of the Court of Chancery, was the general agent of the said Joseph Martin, and acted as such agent in the transaction hereinafter mentioned. That Cruttenden was also the agent of the first-mentioned Richard Willis (the lessor's father) in this particular transaction. That on the 17th of February, 1767, Cruttenden, who had previously received, and had in his custody the marriage settlement of the said Richard Willis and Bethia Willis his wife, and the title-deeds of the said manor, &c. presented a petition on behalf of the first-mentioned Richard Willis and Bethia his wife, to the Right Honourable Charles Lord Camden, then Lord High Chancellor of Great Britain, stating (amongst other things) to the effect hereinbefore mentioned, and that were the said petitioners to exercise the power so given to them of revoking the uses and trusts of the said recited settlement, for the purpose of making a sale of the said manor, &c. so settled as aforesaid, yet as there was no power given to them to limit or declare any new or other use or uses, either to the petitioners or their heirs, or otherwise, so as to convey a good legal title to a purchaser, the petitioners were advised that, on such revocation being executed, the legal estate would result unto and become vested in the said Robert Willis the infant, as heir of the surviving trustee, in trust, to convey the same to a [42] purchaser, pursuant to the power before-mentioned; in which case it was apprehended that the said Robert Willis the infant would become an infant trustee within the statute of the 7th of Ann.(a) iutitled "An Act to Enable Infants who are Seised or Possessed of Estates in Fee, in Trust, or by Way of Mortgage, to make Conveyance of such Estates;" stating also, that a doubt had arisen upon the construction of the latter proviso in the settlement, to whom the purchase-money should be paid, and by whom laid out and invested in the purchase of land to be settled to the uses of the marriage-settlement; that the petitioners were desirous that the agreement entered into with Martin should be carried into execution; that a good legal conveyance...
To continue reading
Request your trial
-
Scott v Davis
...301–307; Smith on Mercantile Law at 70, 71; Story, Commentaries on the Law of Agency, (1839) at §§ 139, 217, 308, 309, 310; Doe v Martin (1790) 4 TR 39 at 66 per Lord Kenyon CJ [ 100 ER 882 at 897]; Bush v Steinman (1799) 1 Bos & Pul 404 [ 126 ER 978]; Attorney-General v Siddon 1 Tyrw R 41;......
- Shire of Charlton v Ruse