Page v Horne
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1848 |
| Date | 21 March 1848 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 464
ROLLS COURT
S. C. 11 Beav. 227. See Bond v. Walford, 1886, 32 Ch. D. 241.
464 PAGE V. HORNE BEAV. 870. [570] page v. horne. July 15, 16, 29, 1846. [S. C. 11 Beav. 227. See Bond v. Walfard, 1886, 32 Ch. D. 241.] Whether, after the execution of a marriage settlement, which is not executory, the husband and wife have power before the solemnization of the marriage to revoke it, qucere. On the 14th of March, in contemplation of a marriage, a mortgage in fee was conveyed to trustees, on certain trusts for the intended wife, husband, and the issue of the intended marriage. On the 27th of March the husband and wife revoked it. Upon a bill by the husband, claiming the mortgage jure mariti, the Court referred it to the Master to enquire under what circumstances the revocation had been executed. The question in this cause was, whether parties who had engaged to marry and had executed a valid settlement, could afterwards before marriage revoke it. In March 1844 a marriage had been agreed upon) between the Plaintiff James Page and Catherine M. Reid, who was entitled to a sum of 1500, secured by a mortgage in fee, vested in her father's executor, in trust for her. By indenture dated the 14th of March 1844, after reciting the intended marriage, the mortgage was transferred to Home and Beaumont, on trust for Catherine M. Reid, her executors, administrators, and assigns, until the intended marriage, and after the solemnization thereof, upon the trusts of an indenture of settlement of even date. By another indenture, also dated the 14th of March 1844, and made between Mr. Page of the first part, Catherine M. Reid of the second part, and Home and Beaumont (trustees) of the third part, after reciting the intended marriage, and that upon the treaty, it was agreed, that the mortgage debt should be transferred to Home and Beaumont, upon the trusts after declared, and reciting the transfer, it was thereby declared, that, in consideration of the intended marriage, the trustees should stand possessed of the 1500, upon trust for Catherine M. Reid, her executors, administrators, and assigns, until the said intended marriage should be [571] solemnized, and after the solemnization thereof, upon trust for the separate use of Catherine M. Reid during the joint lives of herself and Mr. Page, without power of anticipation ; and after the death of either upon trust for the survivor for life, with remainder to the children of the marriage; and in default, for the survivor of them, the intended husband and wife. Before the marriage took effect, it was proposed to revoke this settlement, and accordingly, by deed-poll dated the 27th of March 1844, under the hand and seal of Mr. Page and Catherine M. Reid, reciting that the said intended marriage had not been yet solemnized, but it was intended shortly so to be, and that the said Catherine M. Reid, with the privity of the said J. A. Page, was minded and desiroua to revoke and make void the trusts contained in the settlement, so far as regarded the sum of 1500, to the intent that the same might, on the marriage, become vested in J. A. Page, by virtue of his marital right: It was witnessed, that Catherine M. Reid, with the privity, &c., and J. A. Page, did revoke and annul the trusts of the settlement, so far as as regarded the sum of 1500, and declared that the trustees should hold it, on trust, for Catherine M. Reid, to the intent and purpose thereinbefore expressed. The parties married the next day (28th of March 1844). There were no children of the marriage, and the trustees of the settlement having declined to pay over the 1500, this bill was filed by Mr. Page and Wagstaff (a mortgagee under him) to obtain payment of the 1500. Mr. Kindersley, Mr. Turner, and Mr. B. Blundell, for the Plaintiffs. Parties engaged to marry have a right to vary or rescind either a marriage contract or an actual [572] settlement, at any time before the marriage actually takes place. Every such contract is inchoate and ambulatory until the marriage is solemnized. It is clear, they may annul the contract or settlement, by refusing to marry at all; and 9BEAV.HS. PAGE V. HOENE 465 it follows that they may modify it, by contracting to marry on terms different from those first arranged between them. If it were otherwise, such a contract could never be determined so long as the possibility of a marriage existed, that is, until the death of one of the parties. If the matter rested in contract or articles only, it is settled that they may be varied at any time previous to the solemnization of the marriage, and that it is competent for parties to enter into a new agreement. Legg v. Goldwire.(l) If a marriage contract, founded on the valuable consideration of subsequent marriage, be revocable until the marriage, it follows, that an actual settlement founded on the same consideration is equally so. Who has a right to prevent it 1 The contracting parties themselves have an undoubted right to vary their own agreement, and the possible issue, who, until the marriage, must be regarded as mere volunteers, acquire no interest, not only until the marriage takes place, but until it takes place on the terms ultimately agreed upon between the only parties to the contract. The husband and wife, have, therefore, the power of varying their own rights, and of defeating any interest of other persons who are strangers to the conta-act, and have no interest in the property other than those voluntarily giveu them. Where two parties enter into an agreement for the benefit of a third, who is no party to the contract, then, although neither of the two can alone defeat the rights [673] of the third, yet, by agreement between the two, those rights may be destroyed; Colyear v. The Countess of Mulgrave (2 Keen, 81). In Robinson v. Dickmson (3 Russell, 399), in contemplation of a marriage between A. and B., settlements were made of real estate belonging to B., the intended wife, and of personalty belonging to A., the intended husband, upon uses and trusts, which, aftef the solemnization of the marriage, were to arise for the benefit of the husband, wife, and their issue; the marriage ceremony was performed, and the parties lived together as husband and wife; but, after the lapse of more than a year, and before the parties had any children, the marriage was discovered to be void, and they executed deeds purporting to revoke the former settlement. Some time afterwards, a new settlement, in contemplation of marriage, was made, including the same property as the former, but different from the former in the interests given to the issue, as well as in other provisions; the parties then intermarried, and there was issue of the marriage. It was...
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