CASES BEFORE THE VICE-CHANCELLOR. HOWELL v. GEORGE. THIS was a bill for a specific performance; and prayed, That the agreement might be specifically performed; and that the defendant might be decreed to do and execute all acts necessary to be done on his part, for making a good title and conveyance in fee-simple of the premises, free from the land-tax and other encumbrances, to the plaintiff, his heirs and assigns, or as he should appoint. 1815. 4th July. Specific performance refused of an agreement, to sell an estate in fee, by one who supposed he was absolute owner of the estate, when he was only tenant for life, under a settlement, The agreement was as follows:-" Be it remembered, with a proviso "that it was agreed, this 21st day of March 1804, empowering him "between John George, of Cherrington, in the county of to purchase“ un Gloucester, gentleman, of the one part; and Thomas cstate in fee "Howel, of the Bourne, in the parish of Stroud, in the simple in possession, in some 66 convenient place or places in England, of equal or better value, and to settle the same to him in lieu of the settled estate, which was then to be his own." 1815. HOWEL V. GEORGE. 64 66 said county, maltster, of the other part; as follows: The said John George, for and in consideration of "the sum of one pound and one shilling, to him now paid, and of the sum of 1,4987. 19s. and 5,000l. to "be paid at the time and in manner as hereinafter is mentioned, with interest for the same from the 25th day of March now instant, doth hereby, for himself, "his heirs, executors and administrators, covenant, promise and agree to and with the said Thomas "Howel, his heirs and assigns, that he, the said John George, his heirs, executors, administrators, or assigns, shall and will, on or before the 25th day of March 66 66 1805, by such conveyance and assurances, ways and "means in the law, as he the said Thomas Howel, his "heirs or assigns, or his or their counsel or solicitor, "shall reasonably advise, devise and require, and cause "all proper and necessary parties to join therein, well and sufficiently release, convey and assure, unto the said Thomas Howel, his heirs or assigns, or to such person or persons as he or they shall direct or appoint, free from all encumbrances and the old land-tax, "all those several messuages, tenements or dwellinghouses, &c. [describing the premises]: And that the "said Thomas Howel shall and may receive the rents from all the premises from the 25th day of March "now instant. And the said Thomas Howel, for the "consideration before expressed, doth hereby, for him 66 66 self, his heirs, executors and administrators, promise "and agree to and with the said John George, his "heirs and assigns, that he the said Thomas Howel, "his heirs, executors, administrators, some or one of them, shall and will well and truly pay, or cause "to be paid, unto the said John George, his heirs or assigns, the sum of 1,4987. 19 s. on or before the 66 66 25th day of April now next ensuing; and the further sum of 5,000l. on or before the 25th day of March "1805, with lawful interest for the said sum of 5,000l. "from the 25th day of March now instant. (Signed) "John George, Thomas Howel; witness, George Wa"then one guinea having been paid in part.” By a Settlement made previous to the marriage of the defendant, the premises, in question, were conveyed by Peter Leversage the elder, since deceased, the father of the defendant's wife, to Peter Leversage the younger, and William George, and their heirs, to the use of said Peter Leversage the elder, and his assigns, till the marriage of defendant and his said wife and after the solemnization thereof to the use of said Peter Leversage the elder and his assigns, for his life, with remainder to the use of said Peter Leversage the younger, and William George, and their heirs, during his life, to preserve contingent remainders; with remainder to the use of Frances Leversage, wife of Peter Leversage the elder (since dead), and her assigns, for her life; with remainder to the use of said Peter Leversage the younger, and William George, and their heirs, during her life, to preserve contingent remainders; with remainder to the use of defendant, and his assigns, for life; with remainder to the use of said trustees and their heirs, during the life of defendant, to preserve contingent remainders; with remainder to the use of Elizabeth Leversage, the wife of defendant, and her assigns for her life, with remainder to said trustees and their heirs, in like manner to preserve contingent remainders; with remainder to the use of the first and other sons of the body of the defendant and his said wife, severally and successively in tail general, with remainder to the use of 1815. HOWEL 2. GEORGE. 1815. HOWEL υ. GEORGE. all and every the daughter and daughters of the bodies of defendant and his said wife, as tenants in common in tail, with remainder, in default of such issue, to the heirs of the body of defendant's said wife; with remainder to the use of John Leversage, the grandson of said Peter Leversage the elder, his heirs and assigns for ever. And in the settlement was contained the following proviso: "Provided also, and it was thereby further declared and agreed, by and between all said parties to said indenture, that in case defendant, when he should be in possession of said premises by virtue of the limitations thereof thereinbefore made to him, should settle, convey, and assure other lands and tenements of an estate of inheritance in fee-simple, in possession, in some convenient place or places in England, of equal or better value than the said premises thereby granted and released, and in lieu and recompense thereof, unto and for such and the like uses, intents and purposes, and upon such and the like trusts, and under and subject to such encumbrances as the said premises were thereby settled and assured unto; and in such case, and at all times from thenceforth, all and every the uses, trust or trusts, estate and estates thereon, before limited, expressed, and declared of or concerning the same, should cease, determine, and be utterly void to all intents and purposes; and the same premises should from thenceforth remain and be to and for the only proper use and behoof of defendant, his heirs and assigns, for ever, and to and for no other use, intent or purpose whatsoever, any thing therein contained to the contrary notwithstanding." The defendant at the time of the agreement was in fact only tenant for life in possession. His son, the issue of the marriage, attained twenty-one in December 1808 and, together with the defendant's wife, refused to join in a recovery or conveyance. The defendant by his answer swore, that at the time he entered into the agreement for the sale of the estate, he erroneously conceived, (being altogether unacquainted with matters of law, and not having, to his recollection or belief, perused said settlement since his marriage, nor remembering the contents thereof), that defendant either had such an interest in the estate, or such a power over the same, as would enable him, with the concurrence of his wife, to sell the estate absolutely, without any restriction whatsoever. Mr. Hart and Mr. Fisher, for the plaintiff, contended, that the defendant ought either forthwith to procure his son to suffer a recovery of the premises comprised in the agreement, in favour of the plaintiff, and to join himself, and procure his wife, and all other necessary parties, to join with his son in suffering such recovery, and in doing all other acts necessary for making a good title and conveyance to the plaintiff; or, that the defendant ought forthwith to exercise the power vested in him by the proviso, and make a settlement of other premises of equal value, in compliance with such proviso; and also to do any other acts which might be necessary on his part, and also procure all other necessary parties to concur in all acts necessary to enable him to make a good title and conveyance of the premises to the plaintiff, pursuant to the agreement. They cited Barrington v. Horne (a), Withers v. Pinchard (b), and Hall and Hardy (c). (2) 2 Eq. Cas. Abr. 17. (b) 7 Ves. 475. (c) 3 P. Wms. 187. 1815. HOWEL GEORGE. 5 |