Kidner v Keith

kidnek v. keith. June L9th, 1863. [Referred, to Whdan v. Palmer, 188S, 39 Ch. D. C55.] A deed (which by arrangement was to be executed in duplicate, one to be prepared by each party and to be interchanged between them,) was executed by the grantee, but not attested, and was by him sent to the solicitor of the grantors to procure their execution; and they accordingly signed, sealed, and delivered it: -Held, that this was a complete delivery, whereby the estate passed ; and that the above arrangement did not render the deed an escrow until the duplicates were interchanged. This was an action of replevin. The defendant avowed that one William Pratt, during all the time for which the rent thereinafter mentioned to he distrained for accrued due, and thence until and at the time of the alleged taking of the said goods, held the said dwelling-house and premises in which, &c., as tenant thereof to the defendant under a demise thereof at the yearly rent of 751. payable quarterly, on, &c., ,iu every year, by even and equal portions ; and because 1651. 15s. of the said rent at ithe time 6f the alleged taking was due and in arrear from the said William Pratt to the defendant, he the defendant well avowed the taking, &c. Plea, non tenuit. Issue thereon. The cause was tried before Wightman, J., at the last Spring Assizes at Kingston, when the learned judge directed a verdict to be entered for the defendant, with liberty to the plaintiff to move to enter a verdict for him,-the court to draw any inference of fact from the evidence, which was in substance as follows :- By indenture of lease of the 22nd of April, 18LO, between John Young of the one part and James Bush of the other part, the premises in question were demised to Bush (a) The case was argued before Erie, G. J., Williams, J., Willes, J., and Bylea, J. 666 KIUNER V. KEITH 13 C. B. (N. S.) 36. for fifty-seven years aud n half from the 25th of March then last preceding, subject to the rents aud covenants therein mentioned. By divers ruesne assignments the premises had become and were, on and prior [36] to the 19th of July, 1830, vested in one Alexander Macdougall for the residue of the term. By indenture of assignment of the 19th of July, 1830, between Macdougall of the one part aud Henry John Keith (the defendant) of the other part, Macdougall, in consideration of 4251. paid to him by H. J. Keith, assigned to him the premises in question for the residue of the term, subject to the rent and covenants contained in the indenture of lease of the 22nd of April, 18l(i. By indenture of settlement of the 28th of February, 1831, between H. .1. Keith of the first part, Mary Keith (the mother of H. .). Keith) of the second part, and (jr. C. Keith, Mary Eliza Brooks (then M. K. Snook, formerly M. M Keith), and H. J. Keith of the third part,-after reciting, amongst other things, that the said sum of 4251., the purchase-money for the said premises expressed to be paid by H. J. Keith, was the proper money of Mary Keith, and that in the purchase thereof he was acting as a trustee, and that Mary Keith was desirous that the premises should be held upon the trusts therein mentioned, - it was covenanted, declared and agreed that he (H. J. Keith), his executors, administrators, and assigns, should stand possessed of the premises so vested in him as aforesaid, upon trust to pay the rents and profits thereof to Mary Keith during her life, for her own separate use, and, after her decease, that the premises should be held upon trust in equal shares for the said G-. C. Keith, M. E. Snook, and H. J. Keith. This deed of the 28th of 1'cbruary, 1831, was a family arrangement: but the recital therein that the 4251. was the proper money of Mary Keith was erroneous ; it having in fact been part of the estate of John Keith, her late husband, who had died intestate, leaving Mary Keith, his widow, and H. .1. Keith, (t. 0. [37] Keith, and M. E...