1837.

LLOYD

V.

LLOYD.

The language of the contract amounts to an express declaration, that Lloyd's meaning was that his covenant should be contingent on the performance of the other. The state of the title to Glandead sufficiently explains why that was his object. At the time when these articles were prepared, Glandead was mortgaged for nearly its whole value; and the equity of redemption was settled upon Stephens and his wife for life, with remainder to Esther Stephens the intended wife in tail. The latter had not then attained twenty-one; and until she came of age, no settlement of Glandead could be effectually made. She might die under age, or her father might not be able to redeem Glandead. It was very natural, therefore, for Mr. Lloyd the father to say to Mr. Stephens, "I cannot depend on your promise to settle Glandead. I am willing to contribute my share towards making a provision for the wife and children; but as there is a doubt whether you can make good yours, I will only agree to settle Tyn-y-Pwlly in case you settle Glandead." The words used are clearly words of condition; and the meaning of the parties manifestly was, that the settlement should be conditional. Whatever slight inaccuracies and discrepancies may be found in the articles, which doubtless are inartificially penned, the Court has no jurisdiction to strike the condition out of the contract, and make a new settlement for the parties, different from what they themselves contemplated. These inaccuracies and discrepancies do not, in the least, affect or break in upon the plain intention to make the contract conditional. The recital, it is true, does not state any such intention; but the recital is very general in its terms, and refers to the operative part for the real meaning of the parties. This case much more nearly resembles Porter v. Shephard (a)

(a) 6 T. R. 665.

than

than Boone v. Eyre and the rest of the cases cited on the other side; none of which, indeed, have any application, for in none of them was any express condition introduced. Those cases only shew that where no express condition is found inserted, the Court looks to the justice of the case, and raises an implied condition or not, according to the circumstances. But that is a very different thing from striking an express condition out of a deed. That would not be to construe, but to correct the instrument; a course for which there is no authority in a case like the present, and which the Court, besides, upon this bill, is not called upon or able to take; Sumner v. Powell. (a) Suppose Lloyd, the father, instead of taking a covenant from Stephens to settle Glandead, had required the insertion of some such condition as those mentioned by Blackstone — as for example, "if Stephens should go to or return from Rome,❞—what equity would there be to strike that condition out of the agreement? Yet, that is in effect what is sought to be done here, and what the Vice-Chancellor's decree has authorised.

Mr. Wigram, in reply.

The LORD CHANCELLOR [after stating the substance of the marriage articles, and the material facts of the case]:

The Defendant insists that by the failure of Stephens to perform his part of the marriage contract, Evan Lloyd the elder became released from all liability to perform his part, on the ground that, by the terms of Lloyd's covenant, performance by Stephens was a condition precedent to performance by Lloyd; and the question

(a) 2 Mer. 30.

1837.

LLOYD

v.

LLOYD.

Feb. 8.

1837.

LLOYD

V.

LLOYD.

question is, whether there is not enough to shew that such a construction would defeat the intention, and that the intention was that each of the contracting parties should be liable for the performance of his own covenant, whether the other party could or could not, or did or did not perform his.

If the provisions are clearly expressed, and, there is nothing to enable the Court to put upon them a construction different from that which the words import, no doubt the words must prevail; but if the provisions and expressions be contradictory, and if there be grounds, appearing upon the face of the instrument, affording proof of the real intention of the parties, then that intention will prevail against the obvious and ordinary meaning of the words. If the parties have themselves furnished a key to the meaning of the words used, it is not material by what expression they convey their

intention.

contract.

The present is not a case in which the Court can refuse to interfere on account of the obscurity of the The marriage has taken place; the contract has been so far performed that the Court must put some construction upon it, to the extent to which it remains to be performed; and the question is what that construction ought to be.

The whole question turns and was argued upon the construction of these articles; and in this view it is most important correctly to ascertain what the parties themselves have expressed in the recitals, as their understanding of the contract. According to those recitals Lloyd's agreement is, in case the marriage shall take effect, to pay 2007., and to convey and settle: no time is limited for conveying and settling other than the time

of

of payment of the 2007., and the only event specified is the intended marriage. It is evident, therefore, that upon the marriage taking effect, Lloyd would have been bound to pay the 2004., and to convey and settle the estate. But, in that part of the recital which refers to the contract by Stephens, there is a marked distinction between the period at which he was to pay his 100%. and the period at which he was to convey the estate. His agreement, according to the recital, was to convey the estate at the time thereinafter mentioned, that is to say, when his daughter, having attained twenty-one, would be competent to bar her estate tail in that portion of the property which her father was to settle.

། * 1

[His Lordship then read the covenants.]

Upon the covenant of Lloyd it may be observed that, according to the terms of it, his estate was to be settled to his own use until the marriage, and, from and after the marriage, to other uses. Here then is a covenant which, if the Defendant's argument be correct, was not to operate until some considerable period after the marriage, that is to say, until Stephens made the settlement on his part upon his daughter Esther's coming of age; and yet it could only have been duly executed by a conveyance made at the time of the marriage, inasmuch as it refers to the creation of uses which were to arise anterior to, or at any rate contemporaneously with that event, The two provisions in the covenant, it is obvious, are utterly inconsistent and irreconcileable.

It was hardly attempted to be disputed (and all the authorities in effect prove) that, with respect to marriage contracts, there can be no resistance on the part of one, because another contracting party has failed to perform his part of the agreement; and the obvious

reason

1837.

LLOYD

บ.

LLOYD.

1837.

LLOYD

v.

LLOYD.

reason is that the parties to the contract are not the only persons having an interest in the subject, but the contract is made by them on behalf of the issue of the marriage. Although, therefore, in the case of an ordinary contract, a party who has not performed his part may not be entitled to claim the benefit of it against the other party, it is different in marriage articles, where the two contracting parties reciprocally enter into contracts both of which are made for the benefit of a third party. Unquestionably, however, even in the case of a marriage settlement, the covenants may be so framed as to be mutually dependent; and if it be clear on the face of the settlement that such was the intention, that intention must prevail.

In the present case it was contended on the part of the Defendant that the Court has no right to go out of the terms of the contract, and to construe the covenant by Lloyd otherwise than according to the literal import of the words. On the other side reference was made to the case of Pordage v. Cole (a), in a note to which Serjt. Williams has collected a variety of other cases in which the Court has done great violence to the strict letter of covenants for the purpose of carrying into effect what was considered to be the real intention of the parties. One of these cases was Boone v. Eyre (b), where the covenant was that, A. well and truly performing all and every thing therein contained on his part to be performed, B. would pay an annuity, and where it was held that the annuity was payable by B., although A. had not performed all and every thing on his part to be performed. Kentish v. Newman (c) is a very strong authority proceeding upon the same principle.

(a) 1 Saund. 319.

(b) 1 H. Black. 273. n. a.

(c) 1 P. Wms. 234.

On