« ForrigeFortsett »
and subject thereto in trust for the purchasers, or as they should direct and appoint; and the plaintiff agreed, within one month, to deliver to the defendants,
stranger), it is wholly inoperative between the joint-tenants; but if the feoffment be by deed, though it cannot operate as a feoffment, inasmuch as the feoffee has already that very seisin which it is the object of the feoffment and livery to give him, yet as it testifies the intention of the parties that the feoffee shall have sole seisin of the land, the deed will operate as a release, and must be so pleaded. So as to all other forms of conveyance, Barker v. Lade, 4 Mod. 149., 2 Ventr. 145., 3 Lev. 291., Skinner, 315. S.C. Howell v. Richards, 11 East, 683.; Moore v. Earl of Ply. mouth, 3 B. & Ald. 66.; Wilson v. Bagshaw, 5 Mann. & R.448. 1 Wms. Saund. 235 b. (9.); 2 Wm8. Saund. 97b. (2.); Com. Dig. Pleader (C. 37.); Bac. Abr. Pleas and Pleading (1.7.); Steph. Plead., 4th ed. 339, 417.
The rule is less strict where a conveyance is alleged merely as matter of inducement, or introduction, to that which forms the substance of the allegation, Bultivant v. Holman, Cro. Jac. 537.; better reported in 2 Roll. Rep. 110. by the name of Buttifant v. Holeman.
The rule does not apply to actions for defamation, written or verbal, because there, the publication of the particular words is, itself, the act done.
Under the statute of uses, inartificial words in a deed, if they express the intent of the parties, will raise a use, which
the statute willexecute; Edward Fox's case, 8 Co. Rep. 93 b.
If, on the 1st of January 1840, A. sell a horse to B. for 1001., payable, with 5 per cent. interest, on 1st of January 1841, the transaction amounts to a sale of a horse for 1051., payable at a future day, and nothing else ; and if the 1001. should be paid without the 5l., the vendor must declare for the price, or a portion of the price, of a horse sold and delivered, and not for interest.
Here, in declaring upon the contracts according to their legal effect, the mode of payment would perhaps be stated thus:25,000. deposit ; 200,000L on 1st October 1825; 81251 (which would be the sum treated as half a year's interest upon 325,0001.), on the 1st of April 1826; 50,0001. on the 15th of April 1826; 68751. (which would be the sum treated as half a year's interest on the then residue of 275,0001.) on the 1st of October 1826; 100,0001. on the 15th of Oc. tober 1826; 4375l. (which would be the sum treated as half a year's interest on the then residue of 175,0001.) on the 1st of April 1827; 100,0001. on the 15th of April 1827; 18751. (which would be the sum treated as half a year's interest on the then residue of 75,0001.) on the 1st of October 1827; and 75,0001. on the 15th of October 1827. These ten sums, amounting to 575,2501.,
or their solicitors, an abstract of title to the property 1840. sold, and to deduce a good title thereto, with certain exceptions. And the defendants agreed to pay to the
A plaintiff the residue of the purchase-money by the fol- Taylor. lowing instalments, viz. 100,0001. on or before 15th April 1826; 100,000l. on or before 15th October 1826; 100,000l. on or before 15th April 1827; and 75,0001. on or before 15th October 1827; with interest for the same sums, at the rate of 5 per cent. per annum, to be reckoned from 1st October then next until the day of payment thereof, such interest to be paid by equal halfyearly payments, and to be secured by the joint and several bond of the defendants; and it was also thereby further agreed, that the plaintiff should pay all taxes, &c. in respect of the property contracted to be sold up to the time of giving possession, from which period the defendants should be entitled to the rents and profits.
Ist of October 1825. By a certain other memorandum Second conof agreement between the plaintiff and the defendants, tract. after reciting, in part, the first agreement, and also reciting that the said sum of 25,0001. in exchequer bills had been accordingly paid, and that it had been agreed, in consequence of the then present state of the title, that
may be said to be the only
in the event of the non-performance of that which both parties agreed should be done, were sums payable on a day certain ; although, therefore, 81251., and not 68751., would be the sum payable on the 1st of October 1826, if the 50,0001. which ought to have been paid on the 15th of April, remained unpaid on the 1st of October, yet, according to the terms of the contracts, the 68751. and not the 81251., would be the sum which had been distinctly made payable on the 1st of October 1825, as on a day certain.
the first agreement should be varied and otherwise added to, it was witnessed, that upon the delivery of the said exchequer bills, and payment of the said 200,000). to the plaintiff, in addition to any other payments required to be made by the first agreement on delivery of possession, the defendants should be let into the immediate possession of so much of the premises sold, as were then in the actual occupation of the plaintiff, and into the receipt of the rents and profits of the residue thereof, without such possession being an acceptance of the title, or an abandonment, on the part of the defendants, of their right to have all valid objections to the title removed, and all defective evidence supplied, by, or at the expense of, the plaintiff. And the plaintiff did thereby further agree, that he, or his heirs, executors, or administrators, would forthwith proceed, and, within a reasonable time after the date thereof, remove all valid objections to the title, and complete any evidence which might be defective therein, and make the title as perfect as it should be within the power of the plaintiff, his heirs, &c., to do; and should on or before the 15th of April then next, and that, whether the title should have been then fully completed or otherwise, and without prejudicing the right of having the same completed where then defective, and with all other necessary parties whose concurrence could, at the time, be obtained for that purpose, convey, or otherwise assure, the premises sold, in manner and upon the several trusts provided for in the first agreement, and in all respects according to the same agreement, so far as related to such assurance or assurances, and in the same manner as if the title had been then complete and accepted, and possession given thereon under the first agreement; provided nevertheless, that nothing contained therein was intended to disturb or alter the payment of the said three several instalments of 100,000l. each, or of the interest
thereof, on or before the days or times appointed in that 1840. behalf in the said first agreement, or the right of the plaintiff to have the same respectively paid to him accord- ATTWOOD ingly; and also the interest of the said sum of 75,0001. TAYL down to the 15th October 1827 inclusive; and it was also thereby further agreed that nothing therein contained should disturb the first agreement, or alter the terms thereof, except so far as such terms, or any of them, were inconsistent and at variance therewith, or with the observance and performance of any matter therein contained, or to be done in pursuance thereof, but that the first agreement should, in other respects, be observed and performed in the same manner as if the second agreement had not been executed.
4th November, 1825. By a third agreement made and Third conendorsed on the second agreement, -- after reciting that tract. since the second agreement had been prepared and perfected ready for execution by the said several parties, but before the execution of the same by them, it had been agreed to vary and alter the same, and also the first agreement, - it was agreed, that the defendants, their heirs, executors, and administrators should be exonerated and discharged from all personal liability for the payment of any sum or sums of money whatsoever by reason or means of their having been parties to, and signed, the first agreement, or from any act incidental thereto, or consequent thereon, except that they should be and remain answerable for, and liable to, the payment of the interest on the remaining instalments of the said purchase money as in the first agreement expressed, so long as they remained in possession of the premises, or any part thereof; and that the plaintiff should be satisfied, as his only means of enforcing the payment of the subsequent instalments, with the security of the premises, and which were to be conveyed to trustees in manner in the second agreement expressed, and with the usual
powers for enabling the trustee or trustees for the time being to sell a competent part, and thereby raise and pay such of the said instalments as should fall due, and from time to time when and as the same should fall due, with the respective interest then due in respect of the purchase-money or any part thereof, and with all necessary powers and authorities to give discharges for the purchase-money, and exempting purchasers from, &c., it being nevertheless agreed, as between the parties thereto, that no sale should be made, or proceedings taken with a view thereto, until the plaintiff should have given to the defendants six calendar months' notice in writing, previous to each sale, nor until the expiration of the time mentioned in such notice ; and it was thereby further agreed that plaintiff might be a purchaser at each or either of the said sales of the premises then sold; and it was thereby agreed that 50,000l. only should be paid to the plaintiff on the 13th of April next after the date thereof, the further sum of 50,000l. by the first agreement provided to be paid on that day, having been agreed to be abated from the purchase-money.
Mutual promises in respect of the three agreements.
4th of November, 1825. The 25,000l. invested in exchequer bills was duly paid over to the plaintiff, according to the tenor and effect of the several agreements.
Afterwards, on the day and year last aforesaid, the further sum of 200,0001., other part of the said purchase-money in the first agreement mentioned, was duly paid to the plaintiff by the defendants; and upon the payment of the said several sums of 25,000h. and 200,000l. the defendants were let into full and complete possession of the premises, and became and were, and from thence hitherto have been, and still are, in full and complete possession thereof.
Yet the defendants did not, nor would, pay to the plaintiff the interest upon the residue of the purchase