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Assignment by Husband of Wife's Reversionary Interest. dence given by the witness whose testi- | doubt be interesting to our readers. The mony is impeached, cannot be looked | facts were these :-By articles of marüpon as evidence coming by surprise up riage, made previous to the marriage of on the plaintiff, seeing that it was evidence Miss Elison, a young lady under age, with directly applicable to the issue which the Ralph Nicholson, it was agreed when she plaintiff came to try, and being such as came of age to assign to trustees her reverhe ought then to have been prepared to sionary interest in certain personal properrebut. We ought, therefore, not to grant ty, expectant upon the decease of her fatha new trial, unless it is made out that on er and mother, upon the usual trusts of a a second trial the position of the plaintiff marriage settlement. The marriage took will be materially different from that at place. The lady came of age, and the the former trial.

| settlement was made in pursuance of the On examining the affidavits in support articles. Mrs. Nicholson survived her of the application, it appears to us that husband. After his death, the tenant for the only affidavits which state any mate-life died, and the family affairs being rial facts, tending on any solid ground to thrown into chancery, Mrs. Nicholson inimpeach the testimony of the defendant's sisted that she was an infant when the argroom, are, the affidavit of the plaintiff ticles were executed, and therefore she himself, which cannot be used on a second was not bound thereby, and that she was trial, and that of the plaintiff's mother, absolutely entitled to the fund. Whether who was examined on the plaintiff's be- she was or not was the question, and that half on the last trial, and might on that depended upon whether the assignment occasion have given in court the evidence by her husband of her reversionary chose which she now tenders on affidavit. in action was valid. The case appears to

We therefore think there is in this case have been well argued, and all the cases no sufficient ground for granting a rule. above referred to were cited. The deci

sion was in favor of Mrs. Nicholson. The Rule refused. Vice Chancellor said :—After repeated

discussion in the case of Purdew v. Jack

son before Sir Thomas Plomer, and by Miscellaneous.

Sir Thomas himself: he said, “ After tbis

repeated consideration of the subject, I ASSIGNMENT BY HUSBAND OF THE WIFE'S still continue of opinion that all assign

EQUITABLE REVERSIONARY INTEREST ments made by the husband of the wife's IN PERSONALTY, OR HER EQUITABLE

R HER EQUITABLE outstanding personal chattel which is not, | CHOSES IN ACTION.

or cannot be then reduced into possession, That a husband cannot, either by himself whether the assignment be in bankruptor in conjunction with his wife, and either cy or under the insolvent acts, or to trusby deed, or by procuring her consent to tees, for payment of debts, or to a purbe taken in court, or in any other man-chaser, for valuable consideration, pass ner, make an assignment, either voluntary, only the interest which the husband had or for a valuable consideration, or through subject to the wife's legal right by survithe means of the bankrupt or insolvent vorship.” laws, of his wife's equitable reversionary After reviewing all the authorities interest in personalty, or her equitable referred to, his honor concluded as folchoses in action, so as to defeat the right lows :—“It is useless to be always travelof the wife, if he happen to die and she to ling over the same ground. I consider survive him, before the property reduced the principle laid down by Sir Thomas into possession, the case of Purdew v. Plomer, and twice affirmed by the Lord Jackson, 1 Russ. p. 1, has always been Chancellor, to be decisive of the present considered to have settled. The other question. Whether the husband dies in cases on the point usually referred to are the lifetime of the tenant for life, whereHonnor v. Morton, 1 Russ. 65; and Horns- | by the chose in action cannot as against by v. Lee, 2 Madd. 16.

the wife be reduced into possession, and There has recently been a case before whether he survives and dies before it is the Vice Chancellor of England clearly reduced into possession, the same result recognizing that doctrine, which will no must, in my opinion, follow : and the con

The Opposite sides of Westminster Hall. sequence is, that in the present case a de- of Edward III., the king's bench and claration must be made, that Mrs. Nichol- chancery actually had continually followson's covenant, which might operate as ed the king's person, the chancellor and an assignment, does not now affect that his officers being entitled to part of the portion of the choses in action of his wife purveyance made for the royal household. which was not reduced into possession in By the 28th Edw. 1, c. 5, the lord chanhis lifetime. Elison v. Elwin, 13 Sim. 309." cellor and the justices of the king's

bench were ordered to follow the king,

so that he might have at all times near THE OPPOSITE SIDES OF WESTMINSTER him sages of the law able to order all HALL.

matters that should come to the court.

But the two courts were now, (temp. The following extract from Lord Camp-Edw. 3,) by the king's command, fixed in bell's work, the “ Lives of the Chancel- the places where, unless on a few extralors,” show why the opposite sides of ordinary occasions, they continued to be Westminster Hall meant (what they no held down to our own times, at the upper longer do) the equitable and common law end of Westminster Hall, the king's jurisdictions. The allusion to the arbi- bench on the left hand, and the chancery trary system of purveyance and pre-emp- on the right; both remaining open to the tion, and render in kind, discloses a state hall, and a bar being erected to keep off of things founded in necessity and good the multitude from pressing on the judges. sense at the period in question, though “ The chancellor, on account of his suvery different from the modern arrange-l perior dignity, had placed for him a great ments of Windsor Palace. His lordship, marble table, to which there was an asdiscoursing upon the legal changes estab cent of Ave or six steps, with a marble lished in the long reign of Edward III, chair by the side of it. On this table observes, that

writs and letters patent were sealed in “ There was introduced about this time the presence of the chancellor, sitting in a great improvement in the administration the marble chair. Here he received and of justice, by rendering the court of chan- examined the petitions addressed to him. cery stationery at Westminster. The And on the appointment of a new chanancient kings of England were constantly cellor he was inaugurated by being placed migrating-one principal reason for which in this chair. was, that the same part of the country, | “The marble chair and table are saia even with the aid of purveyance and pre- to have been displaced when the court emption, could not long support the court was covered in from the hall. But till and all the royal retainers, and the render the courts were finally removed out of in kind due to the king could be best Westminster Hall, there were easy means consumed on the spot. Therefore, if he of communication between the chancery kept Christmas at Westminster, he would and the king's bench, which enabled Sir keep Easter at Winchester, and Pente- | Thomas More to ask his father's blessing cost at Gloucester,-visiting his many in one court, before he took his seat in palaces and manors in rotation. The the other; and I myself remember, when Aula Regia, and afterwards the courts a student of law, that if the chancellor into which it was partitioned, were am- rose while the king's bench was sitting, bulatory along with him, to the great vex- a curtain was drawn, and the judges saation of the suitors. This grievance was luted him.”—Lord Campbell's Lives of partially corrected by Magna Charta, the Chancellors," vol. 1, p. 214. which enacted that the court of common pleas should be held in " a certain place," —a corner of Westminster Hall being A celebrated counsellor had a very large fixed upon for that purpose. In point of brief sent to him with a very small fee law, the court of king's bench, and the marked on the back of it. On being court of chancery may still be held in asked if he had read his brief, he pointed any county of England wheresoever in with his finger to the fee, and said, “ As England the king or the chancellor may be.' far as that I have read, and for the life of Down to the commencement of the reign me I can read no further."

THE

New

York

Begal Observer.

Vol. IV.)

NEW-YORK, AUGUST, 1846. [Monthly Part, THE LAW OF VENDOR AND PURCHASER. I back of the deposit with interest was suf

ficient. They held that the purchaser

was entitled to compensation for the disDAMAGES FOR LOSS OF BARGUN. appointment sustained by him, in conseAs a general proposition, it may be affirm- quence of the vendor erroneously, though, ed that every vendor holds himself out to not fraudulently, representing himself as the world as competent to give a good competent to give a good title, and indutitle. This seems to follow from the ele- cing the purchaser to deal with him on mental principles of the contract of sale ; that footing. for by all the definitions of that contract On a motion for a new trial, however, the vendor is not only understood to un- the Chief Justice said, “I think the verdertake that the thing sold is his own, but dict wrong in point of law. I do not think that he can confer a proprietary right on the plaintiff can be entitled to any damthe purchaser. Thus, if I sell a quantity ages for the fancied goodness of the barof corn, and fail to execute my contract, gain which he supposes he has lost.” I am liable to an action for damages. | And Mr. Justice Blackstone, (the reporter

But suppose I sell an estate, and it | of the case,) following the Chief Justice, turns out that my title is bad or defective. and concurring with him, stated the Can the purchaser in that case recover ground of the decision to be, that “ these damages for the loss of his bargain? He contracts are merely upon condition, frecannot ; and unless he impeach me of quently expressed, but always implied, that fraud, I am bound to pay him nothing but the vendor had a good title." Hence the his costs out of pocket; for, as Lord purchaser of an estate never assumes the Hardwicke said, there is no such thing title to be good, but always calls for proof known in England as a mathematical cer- of its validity. He acts on this principle, tainty of a good title to land, Lyddal v. and therefore the loss of his bargain, howWeston, 2 Aik. 20.

ever profitable it might have proved, will The leading case on this point is that be no ground for damages unless he can of Flureau v. Thornhill, 2 W. Black. establish fraud against the vendor. 'Bratt. 1078, where, on a purchase by auction, v. Ellis, and Jones v. Dyke, 3 Sug. Vend. of a rent issuing out of certain houses, the & Pur. Appx. Nos. 7 and 8. For the vendor proved incapable of giving a title, same reasons it was held in this case of and the purchaser thereupon brought his Flureau v. Thornhill, that the purchaser action for damages. The evidence was was not entitled to any compensation for contradictory; that adduced on behalf of the loss he suffered from having sold out the plaintiff going to show that his bargain of the funds to meet the price, for he had was a remarkably good one; while the done so prematurely. evidence on the other side established that We must acknowledge, however, thai it was by no means advantageous, the Lord Tenterden on one occasion made a auctioneer in fact having been ordered to remark approximating to a dissent from let the property go for considerably less the reasoning pursued in Flureau v. than the sum at which it was knocked Thornhill. The observation to which down by the plaintiff. The defendant had we refer fell from his lordship in Hopkins moreover paid the plaintiff's deposit with v. Grazebrook, 6 Barn. and Cress. 31, á interest into court. But the jury, contrary case which came before the Court ou to the direction of the Chief Justice De King's Bench, in 1826. There the deGrey, gave a verdict for £20. In other fendant had contracted for the purchase words, the jury did not think that payment of an estate, but had not obtained a con

The Law of Vendor and Purchaser. veyance. In this situation, be sold the lintelligible." 2 Vend. & Pur. 49. The estate by auction, stipulating to make a distinciion appears to be quite intelligood title by a certain day. This, how gible. ever, he was unable to do, as his own In the case of Walker v. Moore, devendor refused to convey. The second cided by the Court of King's Bench in purchaser, therefore, brought an action 1829, the plaintiff, having contracted for against him, and recovered not only the the purchase of an estate, an abstract expenses which he had incuured, but also showing a good title was delivered to him damages for the loss which he had sus. | by the vendor. The plaintiff, before testtained by not having had the contract ing the accuracy of this abstract by an carried into effect. The commentary of examination of the original deeds, sold Lord Tenterden, C. J., though character certain parts of the property at a profit. istically cautious, may be thought to cast On subsequently comparing the abstract a doubt on Flureau i. Thornhill, for he with the deeds, it was discovered that the said, On the present occasion I will title was defective; whereupon the subonly observe, that if it is advanced as a purchasers refused to complete their general proposition, that where a vendor purchases. In these circumstances, the cannot make a good title, the purchaser plaintiff' not only refused to complete his shall recover nothing more than nominal purchase, but brought an action against damages, I am by no means prepared to the original vendor, claiming as damages assent to it. If it were necessary to de- the expenses which he had incurred in cide that point, I should desire to have the investigation of the title; the profit time for consideration." He then pro- which would have accrued from the receeds to distinguish the case in hand sale of the property; the expense attendfrom that of Flurcau v. Thornhill, by ing that re-sale; and the sams which he showing that in Flurcau v. Thornhill was liable to pay to the sub-contractors there was some title in the vendor; where for the expenses incurred by them in exas, in Hopkins v. Grazebrook, there was amining the title. The decision of the not even the “ shadow of a title.” Mr. court was, that he was entitled to recover Justice Bayley, following his lordship, only the expenses he had himself incurred observed, that "the case of Flurcau v. in the investigation of the title, and but Thornhill was very different from this ; nominal damages for the brcach of confor here the vendor has nothing but an tract, as no fraud could be imputed to equitable title. Now, where a vendor the defendant; for it was held that the holds out an estate as his own, the pur- plaintiff ought to have examined the abchaser may presume that he has a satis. stract with the title-deeds before taking factory title ; and if he holds out as his the steps in respect of which he claimed own that which is not so, I think he may damages, inasmuch as by the exercise of be very fairly compelled to pay the loss ordinary care he might have averted the which the purchaser sustains by not hav- loss which had arisen from his negliing that for which he contracted. There gence; and as there was no fraud impuis nothing to prevent a man from selling table to the defendant, no claim for dambefore he has himself received a convey- ages was sustainable on the part of the ance. It is very often convenient and plaintiff. This case is therefore confirmadvantageous to do so. But the step is atory of Flureau v. Thornhill. But they attended with this risk, that if the vendor both clearly imply, that if fraud or unin such circumstances be rash enough to fairness could have been brought home represent himself as having a good title, to the defendants, the result would have he will be bound to make compensation been different. Indeed, one of the Judges in damages to the purchaser för disap- (Mr. Justice Bayley) in Walker v. Moore, pointment of his bargain. This is all laid down this proposition, that " if therc that was decided in Hopkins v. Graze-were mala fides in the original vendor, he brook ;, a case which we hardly think de- was not prepared to say that the parserves the censure bestowed upon it by chaser might not recover the profit Sir Elwari Sugden, namely, that it will which would have arisen from the re-sale. tend to much litigation before the distinc- When we say, therefore, that damages tion which it introduces is thoroughly are not recoverable for the purchased's

Sale of Expectancies—Inadequary of Price. disappointment, the proposition must al-sary for the party seeking the benefit of ways be taken subject to this qualifica- that transaction to show that he gave a tion, that on the part of the vendor there fair price. That proposition has been the has been honor and perfect good faith subject of much observation; and it has throughout the transaction.

been considered as interfering a good deal

with that proper discretion, which persons SALE OF EXPECTANCIES-INADEQUACY

who are capable, according to the laws OF PRICE.

of this country, of disposing of their pro

perty, ought to be at liberty to exercise. It was remarked by Sir William Grant, At the same time it does establislı a rule, that courts of equity have extended such which has the effect of protecting persons a degree of protection to heirs dealing who are, generally speaking, very much with their expectancies, as almost to es in need of protection. Of the policy of tablish an absolute incapacity to bind that rule, it is not my purpose to say any themselves; reducing them in fact very thing. That rule has been established in nearly to the situation of infants, so as to the case of Gowlanı v. De Faria, and has guard them from the effects of their own been recognized since. conduct. Hence, in all cases of this char- “But another proposition has been sup. acter it is not merely incumbent on the posed to be established by that case, party contracting with the heir to show, which is, that in transactions of this sort, in the event of the contract being subse- the court has ouly to look at the value of quently challenged, that there has been the reversionary interest, calculated ac. no fraud-but he is, moreover, bound to cording to the tables. I do not find any make good the bargain in another way, such proposition established by Sir Wm. by showing that a full and adequate con- Grant in that case. Sir William Grant, sideration has been paidl.

in observing on the case, states the eviIn a contract entered into between par-. dence before him, namely, that of the acties standing in pari casa-mere inade- tuaries, and says there is no other evi. quacy of price, (unless it be such of itself dence in the case, and he then proceeds to betoken fraud,) is no ground for setting on that eridence, there, being no other. it aside, but inadequacy of price is of it. It would seem to have been better to, self sufficient for ihis purpose, whenever adopt some course for the purpose of as. it appears that the thing sold is a rever- certaining more correctly the value, in sionary interest, and that the party selling the sense in which that term is used in is in the situation of an expectant heir, inquiries of this kind. Sir Wm. Grant, who is and has ever been an especial however, did not adopt that course, and object of the favor of courts of equity. he decided upon the only evidence he Disposing of the case of Govland v. De had, that evidence being to the effect, that Faria, 17 Ves. 24, Sir Williain Grant ob- an inadequate consideration had been served, that this was undoubtedly throw-given. It is, therefore, not an expression ing a heavy burden on the purchaser, but of opinion by Sir W. Grant, that that is a in this particular description of case he rule (the rule of the tables) which ought was subjected to this burden on principles to be adopted. It is only a dealing with of public policy.

| that case, with reference to its own pecu. . We have said this much in order to in- liar circumstances. The establishing of troduce some remarkable observations of such a rule would make it impossible for Lord Cottenham on this subject, in con- an expectant heir to dispose of his inter, sidering which, his lordship takes occa- est at all. That, I apprehend, is quite a sion to advert to what had fallen from Sir sufficient objection. It is a rule also, William Grant in Gowland v, De Faria, which as a general rule, being calculated Lord Cottenham, adverting to that case, on the result of a great mass of cases, says:

must apply with great injustice in a va. “ There are two propositions, one of riety of individual cases. The lives are which was established, and the other was supposed to be of average value ; but the supposed to be established in that case. life in question may be an extraordinary The one established was that in a transac- good or an extraordinary had one likely tion with an expectant heir, it was neces.lio last beyond the nual time, or the con.

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