Gaston v Frankum
| Jurisdiction | England & Wales |
| Judgment Date | 09 November 1848 |
| Date | 09 November 1848 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 250
HIGH COURT OF CHANCERY
S. C. 13 Jur. 739. See Lawrie v. Lees, 1881, 7 App. Cas. 33.
[561] gaston v. frankum. Nov. 9, 1848. [S. C. 13 Jur. 739. See Lawrie v. Lees, 1881, 7 App. Gas. 33.] A married woman having separate property, and living apart from her husband, entered verbally into an agreement to take a leasehold house for a term. The agreement was reduced to writing, and signed by the lessor's agent and handed to her. She retained it but did not execute it or any counterpart. In letters, however, written by her and by her solicitors, it was referred to as an agreement, and she had entered into possession of the house. In a suit by the lessor to enforce pay- (1) See Ferrand v. Homer, 4 My. & Cr. 143 ; Brooks v. Purtm, 1 Y. & C. C. C. 271. 2DEG.&SM.S62. GASTON V. FRANKUM 251 merit of the rent according to the agreement as a charge upon her separate estate, the Court directed a reference as to the lessor's title. Waiver of production of lessor's title cannot be insisted on by him in his suit for a specific performance of an agreement for a lease, unless it is expressly alleged by the bill. This was a suit instituted for the purpose of enforcing against a married woman, named Harriet Frankum, and against the trustee of property settled to her separate use, the performance of contract alleged to have been entered into by her, to take a lease of a house belonging to the Plaintiff, in Upper Baker Street. The separate property which it was sought to charge by the suit was derived under the will of Mrs. Frankum's father, who died in 1822, having by his will, among other* things, devised to trustees, of whom a Mr. Hutton, one of the Defendants, was the survivor, real estates upon trust to pay Mrs. Frankum the annual sum of 300 for her life for her separate use, but there was no clause against anticipation. A suit had been instituted for the administration of the testator's assets, and in it a sum of 20,000 3 per cent. Bank annuities had been carried to an account called the annuity account, and by an order of the Court, made 'in February 1830, the Accountant-General was directed to pay out of the dividends, among other things, the annuity of 300 to Mrs. Frankum for her separate use. In 1840 Mrs. Frankum and her husband agreed to separate, and had ever since lived apart from one another. In May 1843 the Plaintiff instructed Mr. Francis, a house agent, to let the house in question, which the Plain-[562]-tiff held under a lease from Lord Portman, for a term of which twenty years were unexpired. Mrs. Frankum applied to Mr. Francis respecting the house, and, after some negotiation, agreed verbally to take a lease for seven or fourteen years, at 90 a year, and to pay 50 for fixtures. Mr. Francis drew an agreement for this purpose, and by Mrs. Frankum's direction took it, on the 30th May 1843, to Messrs. Pickering, Smith & Co., her solicitors, who altered it in some respects. Mr. Francis, the agent (having called on Mr. Gaston's solicitor, and not having found him at home), proposed to take the agreement himself to Mrs. Frankum, which he accordingly did; and having received 10 deposit, he left the agreement signed by him as agent for the Plaintiff, with Mrs. Fraukum, who had previously told him she was a married woman living apart from her husband and having a separate income settled upon her, which would enable her to pay her rent. The agreement was as follows :- "Memorandum of agreement, made this 25th day of May 1843, between Ernest Gaston, Esq. (he was described), of the one part, and Mrs. Harriet Frankum, of No. 4 Upper Gloucester Place, in the parish of St. Marylebone and county of Middlesex, of .the other part...
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