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Course of Study: LA3002 Law of trusts

Name of Designated Person authorising scanning: Toby Boyd, Deputy

Publishing Manager

Title: Grainge v Wilberforce

Publisher: (1889) 5 TLR 436

 436
land. For this the preJeni action was broughi. · The
Act of 1773 provided that the lord of the manor and
bis assignee:; sJiould enjoy all mhies and mineral.ii a.s
Jreely aa ff the Act bad not bee1> passed, without pay•
iog any damages or making an, si,tisfaction for so
doing, and it provided · tliat a certain anngal ren~al
,hould be ■ et aside to provi4e for the compensation to
which Uie allottees might be entitled. The DjvisjonaI
Conrt helct t.bat t.he J!loclosure Act of 1713 did not
aut)loru:e the iord• of the manor and their assignees
~o let d~wn the sqrface. The defepdants •P.J)El&led.
Mr. Rigby, Q.O., and Mr. Danckwflrls . argued for
iho ap:Peilant!, ; and li;jr Henry Ja.inea, Q.C., and lllr.
J. G. WolMl (with~- Manisty) for tlie resp1n~d11nts.
The CoURT 1eversed the decision of the Divisional
Court and allowed the appeal,
The M~TllR of the :QoLLS sajd· that a rule of co11•
lltJ;Uction ha4 been lai4 down by the COJJrl of A:ppc,.,_
and bad been &pJJroved by. the House of Loi;ds with
reg&rd to snch Enclosme Acts. T)la~ rule was to the
effect tha~ jf the worda of the Act were plaiQ and
!)eftni~ the7. ·mast be given their plain and ·ordinary
meaninJ. If, however, they were ambiguons, and
there were anything in the cont~t to limit their
µieaniug, they must not be construed in tbe mos~
general manner. If, for instance, there waa po pr_o ­
vision for compensation in case of the snirace beh1g
let down by the mining operations of the ford, that had
betm held to limit the generaliiy of thi, words. Jn
this case, bowenr, the words of the Act were ex­
tremely plain, arid their manifes~ intention wa.p to
rese"e to the Bishop of Durham, u lord of the
manor, the same a~oh,ite rlght which be po6S81iSed
before the Act of 1773 ~ mine nnder the land and to
let do,yn tbe surfa.ce witl)out naking J.ny compen&a.·
tion for it whatever. So far from the general worda ·
of the Act being limited by the conf;e]!'.t, they were
a.ccentuated o.nd · emvba,ized by the compensation
clause. Therefore the words mu~t be givBJ1 their
clear a.nd ordinary menning, and the def~ndllllt~ were
entitled to let down tbi11511rface withont makillg any
compevaa.tion for so doing.
The LonDS JUSTICES delivered jndgment to th11 &alll8
e:ffo,ct.
[Solicifors-CroMman and Pritchard ; Harrey and
Capron.)
Chan. Div. }
(Chitty, J.) May 1,
O~-P:NOJI v. "'1LBlrn,o~ir1.
Settled Land Act, 1882, s. · 20, sub11ec. 2-
Necessary parties to · conveyance-Persons
having an " interest or charge having priority
to the settlement "-Meaning of.
This wa.a a. spec!lio -performance action which raised
a conveyancin,: quei;tion under the Soit,leq l,a.nd Act;
1882. The defendant is tenant for life of large estates
in Sussex. and as such tenant for life he con~ed to
sell to the plaintiff a house occupied by the latter M
yearly te11&I1t. DisJJUte·s, however, arose as to the
form of the conveys.nee and the joh,der of parties
thereto, under the following circnmstancea~ By a
settlement made in 1663 the property was vested in
trustees to the UMI of the defendant's father (then
Bishop of Oxford, and after,,-a.rds of Wlqchester) for
life, and after his decease for !5Uch persons ~ be and
the defendant should appoint, and subject thereto to
the u~e of the defendant for life with dh-ers
remainders over. By o. deed of 1664 the Bishop and
th11 defendant appointed that after the Bishop' ■ d_e!!,th
the property should f!O to the Rev. Charles Lloyd iri
fee upon trnst during the Bishop'.6 lifetimo, and at
his request in writing to raise by mortgage sums not
oueedin,g £lli,000, and subject thereto upon trnst to
recoovey the heredjta:nents M> the, nses of the settle•
ment of 1863. By a deed of 1865 Lloyd, with the
co11sent in writing of the Bishop, conveyed the property
to a mortgagee in fee, aubject to " proviso that if the
Bishop or other the person or persotlll entitled an<fer the,
llmita.tiop 11f the deed of 1863 ahonld pay £11,500
a11d intereat, the mortgii,gee should, at the request or
cost cif th11 Bishop or such other person or persoDa
i-ecoDvey the property to the ose of Lloyd, or other
trustees or trustee 11f the deeil of 1864, or as he or
they should direct, By a cleed of 1867 the Bishop and
the defendant appoipted tha.t from the solemnization
of the .defend"1lt's marriage (which llhortly aUerwards
took plac;e) the pro~y should go, aubject to the
cloeds of J.864 a.Dd 1865 a.nd to the Bishop's life
estate, to uses limiting ·a. joioture to the defendant's
wife in case ahe sorviyed him, a.nd to the u511 of
certain tru.&tee~ to raise portions for younger children,
and ·subject;-as a.foresa.id to tbeusea oJ the settlement of
1863 to take pJ,.ce in default of ihe exercise of the
joint power cif appoiDtment thereby given to the
:arahop a!l<l the defendanl. This deed also provided
that the powers ot leasing, &c., conta.ined in tho
:;c~Uement of i86:) should pave ~e aame effect "with
reference 1io the nsea •pd eats.tea horeinbeforo limited
&ud for ~e J)llrPOse& of overreaching or effecting sDcb
uses or estates, and for. the purpose of settling "
J)Urcho.sed or exchanged. .property, " aPd for all other
purposes in the &&IXle m_annera ii:i all respects as if the
uses ,-nd limrta.tjon:i hereinbeforo contained h"4 been
insert.ea'. " in the seUlement of l863 . .Tb!! Bisho:P died
in 1873. After the plaintiff had made certs.in reqitisi•
tioPS on the title be fiubmitted a dra.ft conveys.nee in
which be joiiied,as the cQnveyiiig pa.dies, the defend2.nt
(iherefn described &S tenant fo~ life IJD(ler the settle­
ment of 1867),the mortg,-gee,and iloyd ; and inserted
the usua.l qualified aclcnowledgment by the morlgageo
of the rlght-of th!' pur~ha.aera to prodacti9n of the deeda
in bis possession. The de{endall-t'11 solicitor, however,
struck out the name of Lloyd a.s beiDK nnnecessary1
and ma.de the deft1ndanl; the onl7 person giving an
,cknow ledgment as to deeds. '.L'ho pla.intitf declined
t-o accede to these .alterations, Neitber pat1y would
a.gree to the convey&nce being in the form desired l:>J
~e other, and ulti.In&tely the defend,-nt '.Wrote person•
a.lly to tbe ·plainbill' on June 2f, 1888, stating that the
· fresh conveyance bad J,een sent. practically reviving
a.11 the .old demands, and that 88 notbi.11g could be
gained by reiterating the olq argu!llenta the OIU1 thing
remaining to be done was to give the plaintiff notice
lo quit, vbi.cl! he thereby gave, to .ta.l<e effect on Sep­
tember 29. The pla.intuf then commenced tile present
action, cia.iming- Bj?6cilic perfonnance and a11 injunc­
tion to restr11,in thl! defendant from dispo&Sc&&ing him,
After the 11-ction ha.d been commenced the defendant
consented to use his best ~e•vours to procure the
mortga.gee's tu:ecntion of a liatlsfactory aclmowledg­
ment, but he insisted on the omission of the heir-at•
lawof Lloyd a.s a party to the conveyance. The action
-wu accordingly broug)lf; on for•trial, when it appea.red
(ro111 the defepda.Jit's ailidavH tba.t Uoyd died in~pril,
1883, that .iloyd ha<! nQt further enrcised the J><>Wer
of raising money, and tba.t no claim on his pa.rt bad
been made for costs, charges, or expenses as a trnstee,
Mr . BYR!fB, Q.O., and Mr. Qum, tor the plaintiff,
PO w: cop)ended th"t the deed of 18Ji7 was a re!lettle­
ment, &weeping a.way the life illtere3t of the defendant
under the deed of .1863, aild giving him a. new: life
interest nn4er Uie deed of 1867, a11d that as Lloyd ha.d
the rig)lt tq redeem the mortgage bi1 Jieir was -
necessary party to the conveyance, as having an •·• in•
terest of chi,.rgl) having priority to the settlemept •'
within section 20, snbseetion 2 (,'), of the Settled
Land Act, 1882.
Mr. Ro1111R, Q.C., a.nd Mr. FJU.Nlt Bvws, 'for the
defendant, a.rgued that the defendant was tenant for
life of the aettlement of 1863, the effect of the deed
of 1867 being to restore his life interest thereunder,
and that if Lloyd bad any interest a.t all it had no
priority within the section.
lllR. JuSTICB CHITTY. in delivering judgment,
said that some nice qnostions . bad been raised on
the construction of the deeds and as to the meaning under
the Settled Land Aet of the term " the settlement."
But his Lordship was able, to decide the C&5e without
determining whether the defendant was tenMt for life
nuder the settiement of li163 or the deed of 1867, and
on tbo assumption that tho pl&intilf waa right in con•
tending that the defendant was tenant tot life under
the latter deed. U was plaiD tb&t no further aum
could be raised by Lloyd after the Bishop's death, and
from the defendant's affidavit it was clear that no sum
beyond the £11,f.00 wa.s raised in hia lifetime. Con•
sequently the trust to raise money b&d come to a.n end
on tbe death of the Bishop. The equity of redemption
under the mortgage of 1865 was reserved to the Bishop
or other theperson or persons for the time being entitled
undet the deed Of 1863. They were the only persons
who could redeem, though the reconveyance was to be
made to Lloyd or other the trustees of the deed of 1864
or as be or they ahoul.i direct But tloyJ h1od no trast
to redeem, and when lie bad raised tbe money he waa
a.bsolved from any farther concern in the matter. Be
might have directed the reconveyance to be made to
any person entilled under the deed of 1863, but ir it
had been made to him.sell he would ba.ve held as
trustee for the pedons entitled under thd settlement.
The deed of 1867 was a complete exercise of the joint
power of a.ppointment contained iD the aetUemeni of
1863. The defendant was clearly tenant for life, and
even if he waa so under the di!ed of 1867 his convev•
ance, having regard to sec!tion 20 of the Settled L...;a
Act, passed the •ettled property free from a.11 estaiea
and interests under the deed of 1867 and bound every
o·ne claiming under that settlement. But the effect of
that deed was to transfer the right to tedeem to the
persons entitled under the deed ul 1867, and therefore
they were bound by the sale. Tbe mortgagee was
admittedly a proper party, and his conveyance p.ve
the parch&Ser t-be legal esta.te. But Lloyd bad no
interest whatever, or, if be bad any, it was only an
equitable nght to redeem as trustee for the pemolld
interested under the deed of 1867. The case, therefore,
fell within the principle that where A 1tas trustee for
B, who was trustee fot C, A held in tru!lt for 0, and
must convey aa C directed, B-in this cue Lloyd­
might therefore be left ou~ even ulidcr the old strict
rules as to partie&--'-' i Head v. Lord Teynbam'' (1 Cox,
57). Therefore, Lloyd, or his heir, was not a becesaary
party to the conveyance, aod the purchaser would be
aa.fe in completing 1tithoui him. Bdt wi\boilt the
affidavit it wonld not haV'e appeared \bat notbtng
beyond the £11,500 was raised, in which case, if the
deed of 1867 was the settlement, it would have been
right to joitt Lloyd. Although ubder the circumstances
the . defendant w:as rigbt on this point, he was ad·
mittedly wrong in his ll.lteration as to the aclrnow•
ledgment of deeds, fot it was his duty to get the
~ortga.gee t:o joib in the acimowledgment. He bad
alao taken the wrong view in tiving the plaintiff
notice to quit. Under the&e ctteumstances, a1thougll
there must be a declaration tba.t Lloyd ·was not a
nece&9&1y party, the pbilitift' was entitled to &peciBc
perform6.ilce and to the costs of the actlob.
[Solicitors-Setdor• Attrec, and Johnson : J. H.
Ravelil'iillJ
Q.B. Piv, (Field and }
Cave, JJ. Kay 1,
. CllISROLti V. DOULTON,*
Nuis~nce-Smoke from Furnace-Liability of
Employer for Negligent Act of Servant.
Tbia wa.s a special c~ated by a metropolitan
magistrate, and raised the question whether, under lG
and 17 Vic., c. 128, an employer is liablo for the act
of his servant in causing .smoke to iuue from a fornace
in the metropolis. Sir Henry Doulton, of High-street,
Lambeth, was summoned before Mr. niron by Colin
Chisholm, on behalf of the Cominissioners of Police,
for that he on the lSt-h of April, iii and upon certain
premises uaed for the purpose of trade and manufac­
ture.;...to wit, that of a potter did so negligently use
a. furna.ce employed in the S&id premises that the
ainoke arising therefrom was not elfectua.lly consumed
or blli'Dt, contrary to the statute 16 a.ud 17 Vict.,cliap,
128, sec. 1. It was proved that black smoke was
seen to inue from No. 4 kiln of tbtl wor'ke of the re­
spondent on the mi>ming of April 13. 'Ihe magistrate
was satisfied tba.t the respondent bad spent large sums on
ha!ing fnmaces conskucted on the best known principles,
and bad done all in hi ■ power to have them so a.rranged
as to consume or bum their own smoke,and that be had
a thoroughly eflicieut foreman in charge of the fur•
naces, whose duty it was to superintend the stokers
and to aee that they took proper ea.re in lighting 11JJd
otherwise managing the furnace. It was also proved
that a system of rewa,rde and punishment■ bad been
instituted under which finea were imposed on the men
when negligent and rewards were given when the fur•
naces were properly worked, and the respondent took
no personal part iil the mlLnagemeht of the fnrnacee
and was altogether ignorant of the fact that smoke
was iSBUing on the day named. It was iU'gued tha.t in
point of law the reapobdent must be held te11p0nsible
fbr the acts of his sern.nta. The magistrate held that
the respondent was not guilty of negligence, and bad
done all that could be reasonably expected
of him to comply with the requirement& of
lbe statute, and therefore dismimed the summons.
The case came on for argument ib the Divisional
Court; a.nd wae sent back to the magistrate for hiin to
ilnd wbethertbe siooke was occasioned by the negligence
of the owner ot fol'llman, or other and what person, a.nd
what kind ·or negligence. Tbe case, as re-sta.to?d,
shllwed that the offence was the emiasion of black
.smoke for ten lilinutu-namely, fromG 40 to 6 50 a.in.;
that the fur'llace was properly 'Constn,cted, and the
smoke a.rose by the act ol tbe stoker or person who
lighted the ftre, who ti:l.ighl. by proper eare have pre•
vilnted the occurrebce; that the attention of the fore•
m11.n Wlll not clilled to, 1111d he •h ad no personal
knowledge of, the matter, and was bot guilty of
negligence I that Sir Henry Doulton had no know•
le<lge of the ma.tter, and was not guilty of negligence.
By 16 and 17 Vic., cba.p. 128, sec. 1, "Every furnace
ein~lo.yed or to be empioyed in the metropoiis , • •
shall 1n all cases be conatrncted or altered so as to
consume or bum the amoke arising from such fumace ;
and a .any person aball • • • within the metropolis
nse any such furnace which shall not be constructed so
as to consume or burn its own amoke,or shall so negli•
gent1y nse a.uy such :fnrnaoe 10 that the amoke ari•lng
therebom •hall not be eftectuall, consumed or bamt,
or shall carry on any trade or business which shali
occasion an,r noxious or ofi'ensive effluvia • • ,
w1thoot nsing !lie best practicable means for prevent,.,
ing or connteracting aucb smoke or annoyance, every
person so offebding, being the owner or occopi.er of the
•nepgrteci bJ iL Bl19Ul.I. E14,, BanlateNl'-J.aw.