Mr. Bertie & ux' v Lord Falkland
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1697 |
| Date | 01 January 1697 |
| Court | High Court of Chancery |
English Reports Citation: 22 E.R. 1171
LORD CHANCELLOR, CHIEF J. HOLT, CHIEF J. TREBY.
C. 292.-mr. bertie & ux' v. lord falkland. [1697.] (1) j Lord Chancellor, Chief J. Holt, Chief J. Treby. Breach of a condition, [whether] to be relieved *? Mr. Carew being seised of an estate of near 2000 per ann. deviseth his estate to trustees, upon trust, that in case Mrs. Willoughby (daughter to the Lord Willoughby, and his near relation and heir at law) should marry the Lord Guildford within three years after his decease, that she should have the profits of his estate for her life ; and after her decease, deviseth the same to her issue by my Lord Guildford ; and for default of such issue, to the Lord Falkland, and the heirs of his body, with remainder to one Mr. Carew; and if she did not so marry, then he devised to the Lord Falkland immediately. The Lord Guildford and Mrs. Willoughby were both infants under the age of sixteen. There was a treaty between the trustees of Mrs. Willoughby and the trustees of my Lord Guildford, for a marriage ; but it broke off, because they could not agree upon terms, and she married the plaintiff, who is one of the sons of the Lord Abington ; and my Lord Guildford is also married; and now the plaintiffs brought their bill to be relieved against the breach of this condition, and to have the trustees convey ; and the sole question was, whether equity could relieve against the breach of this condition ? It was insisted for the plaintiffs, that the plaintiff was an infant, not fourteen at the time this condition should have been [221] performed, and that she was not so 1172 BERTIE V. FALKLAND (LORD) 2 FBEEMAN, 222. much in the fault as her trustees that it was not performed, who broke off the treaty upon terms; and however this being not a devise of the estate, but of the trust of an estate, that equity might carry it farther than in case of a legal estate, a trust being a creation of this court, and the party here was heir at law, who is always favoured. But by the opinion of the Chancellor and two Chief Justices, equity could not relieve against the breach of this condition. 1. For that this was a condition precedent,(2) and that the plaintiff had no interest until the condition performed; and Holt said he thought that there could be no relief in equity against a condition precedent; but in many cases there might be against a condition subsequent, which being to devest an estate, is not favoured...
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