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MORRELL.

true of a fee, it is also true of a less estate. In Goodill v. Brigham (a), where there was a devise in fee to a feme covert, with a power to dispose of the estate without the control of her husband, it was held, that the power was void as being inconsistent with the fee given her in the first instance, and that she could not convey without a fine. A power necessarily implies something different from an interest; and consequently there is no sufficient allegation of interest in the plaintiffs, as it is impossible to see, upon the declaration, whether they have an interest or a power. Repugnancy has always constituted an objection on special demurrer; Butt's Case (b), Denison v. Richardson. (c) In the latter case the declaration was held bad simply on the ground of a repugnancy in the dates.

Talfourd Serjt., contrà, was stopped by the Court.

TINDAL C. J. The first objection made in this case is, that the declaration is bad, for not containing an allegation that the plaintiffs had good title to convey the collieries and other property mentioned in the agreement. The argument has proceeded on an assumption that the situation of the plaintiffs and the defendants is similar to that of the vendor and purchaser of an estate. It appears to me, looking at the record, that the parties do not stand in that relation, and consequently the authorities which have been cited do not apply. This is not a contract by which the defendants agree to pay the purchase-money to the plaintiffs on having a conveyance of the estate; but it is a contract by which the defendants undertake, within a certain time, to execute

The relation of these parties to

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a deed of covenant. the estate is this: the plaintiffs are mortgagees in possession of certain collieries, out of which they have HALLEWELL worked coal, in respect whereof debts to a considerable amount are due to them. The defendants also are, or claim to be, incumbrancers upon the property. It was, therefore, greatly to their interest to obtain possession of the plaintiffs' mortgage, in order to tack it to their own, and thus acquire a priority. (a) This being the situation of the parties, the plaintiffs advertise for sale by auction their interest in the collieries, under the power contained in the mortgage securities. The sale being about to take place, the defendants naturally wish to prevent it, and therefore come to an agreement with the plaintiffs, by which, in consideration of the sale being postponed, they undertake to enter into a deed of covenant (which was to be executed by all parties within twenty-one days from the date of the agreement) for the payment of the amount found due to the plaintiffs, on taking an account in the manner therein set forth, not exceeding 20,000l., by three equal instalments, on the 19th of September, the 19th of January, and the 19th of May then next ensuing the making of the agreement, which bore date on the 19th of May 1838. And it is stipulated that on payment of the first instalment, all the property comprised in the securities held by the plaintiffs (except the collieries) shall be conveyed to the defendants; and that in the mean time, and previously to the deed of covenant being executed, the latter shall have given up to them the collieries, all moneys then due for coals, with authority to collect the same, and the stock of coals upon the wharf; and further, that the plaintiffs shall forbear to take proceedings against

(a) Vide Coote's Law of Mortgage, 2d ed. 471.

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Ambrose upon his bills held by them. The defendants consequently obtain an important advantage immediately upon the execution of the contract. The declaration proceeds to allege that, in pursuance of the agreement, the plaintiffs had postponed the intended sale, and had taken no proceedings against Ambrose, and had given up the collieries to the defendants, and also the moneys then due for coals sold, with a proper authority to collect the same, and the stock of coals upon the wharf; and that they had prepared, and delivered to the defendants, a draft of a deed of covenant, and, the accounts having been made up, had called upon them to execute a deed of covenant, and to return the draft in order that it might be engrossed; but that the defendants had refused to execute such deed of covenant. The defendants do not deny the facts stated in the declaration : the only answer they set up is a demurrer, assigning for cause, that it is not alleged in the declaration that the plaintiffs had a good title to the collieries and other property, or any power to sell or convey the same. I have said enough to shew that the relation in which the parties stood did not impose on the plaintiffs the duty of making out their title before the execution of the deed of covenant- that the exhibiting of such title was not a condition precedent to their right to call upon the defendants to sign that deed. The fair construction of the agreement is, the defendants were so anxious to prevent other parties from coming in before them, that they were content to place themselves in the very boat in which the plaintiffs were sailing. Whether the defendants may hereafter take advantage of the want of a good title in the plaintiffs, is another question: it is sufficient now to say, that the making out of a good title was not a condition precedent to the right of the plaintiffs to require the execution of the deed of covenant.

Another objection is, that the declaration is repugnant and incongruous, by reason of its stating that the plaintiffs were about to sell their interest under a power, so as to leave it uncertain whether the intended sale was to be of their interest in the property, or it was to be effected by virtue of some power. I think we should be construing these words much too strictly, if we were to read them in the sense which would be attached to them by a conveyancer. Interpreting the language of the declaration according to the subject matter, and referring the one expression to the real, and the other to the personal property, full force and effect may be given to both. The declaration commences by alleging that the plaintiffs were interested in certain collieries and other property, which other property we subsequently find consists of debts and coals, and consequently the word "interested" in the first allegation is clearly referable to both real and personal property. Afterwards comes an allegation that the plaintiffs were about to sell their interest in the collieries and other property, under a power lawfully authorising them in that behalf. Why are we to say that the plaintiffs meant the power of sale to extend to something to which it is not legally applicable? According to all the authorities, there is not the same precision required in a declaration as in a plea! "Words shall have a reasonable intendment and construction:" Com. Dig. Pleader, (C. 25.) "And general words are sufficient where the certainty lies within the defendant's notice." (C. 26.) Here the defendants are parties to the agreement, and it is alleged that they had notice of the power of sale. I am therefore of opinion that neither of the objections urged to this declaration ought to prevail. We are not to be governed by the decision in the Exchequer, for there the declaration did not contain the allegations which are here introduced.

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v.

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COLTMAN J. I also am of opinion that the making out of a good title is not a condition precedent to the HALLEWELL right of the plaintiffs to call for the execution of the deed of covenant. The cases cited are very different from the present. Here, it is stipulated that the plaintiffs shall give up the collieries, debts, and stock of coals on hand, to the defendants; shall forbear to proceed against Ambrose upon his bills; and shall postpone the intended sale: all of which formed a very good consideration for the execution of the deed of covenant by the defendants. Whether the plaintiffs can call upon the defendants to pay the instalments when due, without first making out a satisfactory title, is a very different question, but it is not necessary to decide that now. There is no reason why the exhibiting of a good title should be a condition precedent to the execution of the deed of covenant, for the latter is nothing more than the giving a security for the payment of the money when a proper conveyance is made.

Another objection is, that there is a repugnancy and inconsistency on the face of the declaration in stating that the plaintiffs were about to sell their interest under a power. There certainly would be an inconsistency, were we to take the word power in its strict technical sense; but we are not bound to do so; and giving the word its popular meaning, there is nothing inconsistent in the allegation. Where the making out of a good title is a condition precedent, the allegation might not be sufficient, but for the purposes of this present case I conceive it is.

ERSKINE J. The first objection made by the defendants to this declaration is, that it does not state what interest the plaintiffs had in the collieries and other property at the time when the agreement was made. But no authority has been produced, that parties in the