Separate Use-Second Marriage-Construction. The trustees of a marriage settlement held money on trust during the life of the intended wife, to pay the income to her for her separate use, independently of her intended husband, and so that her receipts alone should be sufficient discharges, and so that she should not have power to deprive herself thereof by anticipation :—Held, that the trust for her separate use extended to the second marriage of the lady. A settlement of personal estate executed in contemplation of the marriage of Lydia Ann Macaulay and James Gordon, contained the following declaration of trusts : "And [the trustees] shall, during the life of the said Lydia Ann Macaulay, pay the annual income of the said trust moneys to the said Lydia Ann Macaulay for her separate use, independently of the debts or control of her said intended husband, and so that her receipts alone shall be sufficient discharges, and so that she shall not have power to deprive herself thereof by anticipation, and after the death of the said Lydia Ann Macaulay, shall hold the said premises and the annual income thereof in trust for the child or for all or any such one or more of the children of the said Lydia Ann Macaulay, in such manner and form in every respect as she shall, notwithstanding her coverture, by any deed or deeds, or by will or codicil appoint." The deed then declared the trusts on which the funds were to be held in default of appointment. The wife survived her husband and married again. Upon her second marriage no settlement was made, and the question was raised by a special case, in which her second husband, Mr. Hawkes, was plaintiff, whether the trust for her separate use revived upon her second marriage. Mr. J. W. Chitty, for the plaintiff, argued that the jus mariti was not to be excluded by ambiguous expressions, that a distinct life interest was given to the wife by the NEW SERIES, 40.-CHANC. Knight v. Knight, 6 Sim. 121; Mr. M. T. Martin, on behalf of the wife, consented to an answer to the case in favour of the plaintiff. Mr. W. F. Robinson, for the trustees of the settlement, was not called upon. The THE MASTER OF THE ROLLS said: The case is clear. The authorities cited by Mr. Chitty only strengthen my view of it; and the earlier ones are cited in In re Gaffee, and disposed of by Lord Cottenham in a few words which I adopt. question is whether the gift is to the separate use of the lady for her life, or for the first coverture. That is made clear by Moore v. Morris, for there the separate use is expressly during the life of the first husband. The words are 66 to Jane Davidson, her heirs and assigns for ever, independent of the said Captain Henry Davidson, for her separate use and benefit." In this settlement, however, the words are distinct. It is a gift to the wife during her whole life for her separate use, independently of the debts or control of her intended husband, so that she shall not have power to deprive herself thereof by anticipation. It would be very injurious to let the question turn on little quibbles. It is given to her for her life, without power of anticipation. She might have disposed of it as she pleased upon her second marriage, but not having done so, it is still to her separate use. I must follow Tullett v. Armstrong (1). HATHERLEY, L.C. JAMES, L.J. 1870. July 13, 19, 20, 21. STRETTON V. THE GREAT Railway Company-Notice to TreatTaking Possession without Consent of Owner -Ejectment-Interests omitted to be purchased-Lands Clauses Consolidation Act, 1845, sec. 124. In 1856, the G. W. and B. Company took possession of a piece of land, a portion of which, undefined by boundaries, belonged to F. Such possession was taken without F's consent, and without compliance with the provisions of the 84th and 85th secs. of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), and F. being unable to define the boundaries of her land, the company continued in possession, and constructed a railway on the land without F.'s consent, and refused to pay her anything in respect of her land. In 1868, the plaintiff claiming title under F., brought an action of ejectment against the company, and recovered judgment, and possession was delivered to him by the Sheriff under a writ of possession. The company, however, continued to run their trains over the land, and the plaintiff filed a bill against them for an injunction to restrain the trespass. Thereupon, the company served the plaintiff with notice of their intention to summon a jury for the purpose of ascertaining the value of the land, under a notice to treat served upon F. in 1856, but which notice had until then been treated by both parties as non-existent, and the plaintif filed a second bill for an injunction to restrain the company from summoning a jury-Held, reversing the decision of one of the Vice-Chancellors, that the plaintiff was entitled to both injunctions. Held also, that the case did not come within the 124th sec. of the Lands' Clauses Consolidation Act, relating to interests omitted by mistake or inadvertence to be purchased. In the year 1856, Miss Margaret Sophia Fawell, the plaintiff's predecessor in title, was the owner in fee simple of la. Or. 4p., part of a field containing about 10a. 2r. 13p., called Lot Mead, at Old Brentford, in the county of Middlesex; 0a. 1r. 25p. belonged to other owners, and the rest of the field to George Clarke, who occupied the whole, paying Miss Fawell a yearly rent of 11. 14s. Od. for the part belonging to her. In June of that year the Great Western and Brentford Railway Company being desirous of taking and using Lot Mead for the purpose of their undertaking, served notice to treat upon Mr. Clarke, and in the same month they took possession, but without the consent of Miss Fawell, and without complying with the provisions of the 84th and 85th sections of the Lands Clauses Consolidation Act, 1845, though they had notice of Miss Fawell's claim; and they continued in possession without paying her anything in respect thereof, and they declined to treat with her until she should be able to identify the particular portion of the field belonging to her, which she was unable to do. Some further difficulty was also caused by Miss Fawell claiming 2 acres, but this was afterwards explained by the fact that these were customary acres, equal together to la. Or. 4p. statute measure. Miss Fawell died on the 6th of August, 1858, having devised her interest in Lot Mead to Mary Ann Stretton, who in 1861 conveyed it to her father the plain tiff. Clarke's tenancy of the land formerly belonging to Miss Fawell was determined by notice to quit on the 22nd of February, 1859. On the 28th of November, 1859, Clarke conveyed his estate in Lot Mead to the company. By the deed of conveyance, after reciting Clarke's title to the whole of the premises therein described "except la. Or. 4p. of statute measure, and of freehold tenure, the position and boundaries of which are at present unknown, and which at the time of the death of John Clarke (the predecessor in title of the vendor) were vested absolutely in one Margaret Fawell now deceased, and her heirs, for an estate of inheritance in fee simple in possession, and were occupied by the said J. Clarke at an annual rent of 17. 14s. Od.," the vendor conveyed to the company all such part as was free hold of Lot Mead with the appurtenances, "save and except, nevertheless, out of the conveyance intended to be hereby made, all those, the said la. Or. 4p. and 0a. 1r. 25p. of statute measure, part of the hereditaments hereinafter described, the position and boundaries of which are at present unknown, and which at the time of the death of the said John Clarke, were vested absolutely in the said Miss Fawell and her heirs, and are now vested in her devisee or devisees, and in the" owners of the remaining Oa. 1r. 25p. At the same time the company took from Clarke a bond of indemnity in respect of the difficulties as to the title. The plaintiff made various applications to the company, and endeavoured to bring them to a settlement of his claim, but without success; and on the 9th of August, 1867, he again gave the company notice of his claim and furnished them with an abstract of his title to 2 acres in Lot Mead, but without further identification. A long correspondence ensued, but the company refused in any way to recognise the plaintiff's title, and in 1868 he commenced an action of eject ment in the Queen's Bench, to establish his title and recover possession, and the portion of Lot Mead claimed by the plaintiff having in the meantime been identified, a special case was stated for the opinion of the Court, which was argued on the 25th of January, 1870, when judgment was given and had since been entered up in favour of the plaintiff for la. Or. 4p. On the 10th of March, 1870, the sheriff of Middlesex, acting under a writ of possession issued under the judgment, put the plaintiff in possession of the la. Or. 4p. recovered by him, and thereupon notice thereof and of the plaintiff's intention to erect a fence was served on the company, and also on the Great Western Railway Company by whom the line was worked, and accordingly the plaintiff caused a rope to be stretched across a portion of the land recovered in the ejectment, and upon which a part of the Great Western and Brentford line of railway had been constructed. Still the company refused to recognise the right of the plaintiff; they broke the rope and continued running their trains over the land as before. On the 12th of March the plaintiff filed his bill against the Great Western and Brentford Railway Company, the Great Western Railway Company, who were lessees of the railway, and also against the Thames Steam Tug and Lighterage Company, who worked the traffic over a canal which had been formed by the first-named defendants on part of the plaintiff's land. The bill prayed for an injunction to restrain the defendants from committing any trespass on the plaintiff's land either by running trains across or over, or causing any barge or other craft to float across or over such land or otherwise, and from destroying any obstruction the plaintiff might set up, and from disturbing the plaintiff's possession of such land, and from continuing to remain in possession thereof. Up to this time it was assumed on both sides that no notice to treat had ever been served on Miss Fawell, the plaintiff's predecessor in title, but on the 28th of April, after it had been arranged that the plaintiff's application for an injunction should be heard as a motion for a decree, the principal defendants served upon the plaintiff notice of their intention to cause a jury to be summoned for the purpose of determining the amount of purchase money and compensation to be paid to the plaintiff in respect of the property comprised in a notice to treat of the 2nd of August, 1856, alleged to have been served on Miss Fawell. This was the first time that any mention was made of that notice, the service of which was unknown to the plaintiff, and had been forgotten or overlooked by the defendants. The plaintiff thereupon filed a second. bill against the Great Western and Brentford Railway Company alone to restrain them from proceeding to summon a jury. The two suits came on for hearing together, before Vice Chancellor Malins, on the 7th of June, when his Honour dismissed both bills with costs (1). (1) The judgment of the Vice Chancellor was as follows:-The injunction which is sought for by the prayer of the bill in the first of these suits, and upon which the stress of the argument is laid, is an injunction which goes to prevent the use of this land by the Great Western Railway Company; it Thereupon the plaintiff appealed. Mr. Glasse, Mr. Graham Hastings, and Mr. Murphy, of the Common Law bar, goes to stop the business of the railway, and also the business of the original company which leased their line to the Great Western Railway Company; it would stop the Great Western Company from running their trains over this land, and also the Thames Steam Tug Company from using it for the purpose of their traffic, whatever it might be. Is, then, the plaintiff entitled to that right? He relies, and he relies solely, on his proceedings at law, by which he established his legal title to one acre and four perches of land, and it being the land over which the railway company are running, he says, "My legal title having been established, decides also the equitable right; and, being my land, I am entitled to stop anybody from touching it without my consent." That is the broad ground on which the case is argued. With respect to the course adopted by the plaintiff, I am greatly surprised to find that, although reasonable offers have been made by the company to pay the utmost price of 2001. an acre, that is, to give this gentleman 2051. for a bit of land which never produced more than 34s. a year, he chose to claim the right to stop a great railway company using that land rather than submit to the reasonable terms offered to him. I am satisfied that the law gives him no such right, and that although he has succeeded at law in establishing against the company his legal title, there is no equity that can justify him in the position he assumes in this case. Now, what is his real position? It is proved, and it is not attempted to be denied, that a notice to treat was served by the company in the month of August, 1856. What is the consequence of that? It has been argued at considerable length that a notice to treat does not constitute a contract. For some purposes it does not constitute a contract; it does not constitute a contract so as immediately to convert the land into personalty in case the landowner dies immediately afterwards, as between the different classes of his representatives, but, as between the railway company entitled to take the land and the landowner who has the land to sell, it has been settled since the passing of the Lands Clauses Consolidation Act, that a notice to treat served by a company does make them equitable owners of the land; that it gives them a right to take it by depositing the price under the 85th section of the Act; that it makes them to all intents and purposes the owners of the land if they want it, and that nothing remains to be done between the parties but to ascertain the price, and, having ascertained the price, to perfect the title of the company by a proper conveyance. I need not refer to authorities; the case of Adams v. The London and Blackwall Railway Company (2 Mac. & G. 118; s. c. 2 Hall & Tw. 285; 19 Law J. Rep. (N.S.) Chanc. 557), cited by the plaintiff's counsel, is conclusive on the subject. The doctrine had formally been decided in Stone v. Commercial Railway Company (5. Myl. & Cr. 122; for the appellant.-The defendants cannot now fall back upon the notice, which has been treated as non-existent for so many 1 Rail. Ca. 375). I have had occasion to act upon it myself fifty times at least; it is thoroughly settled. What, therefore, was the position of these parties? On the 2nd of August this railway company became the owners of the land. What was to be done more? They became the owners entitled to take possession either by depositing the price under the 85th section of the Act, or proceeding to summon a jury, or, if the landowner desired it, they might have gone to arbitration. That was the position of the company. What was the position of the landowner? Miss Fawell, upon whom the notice was served, had a right to say, "You have admitted my title; and you shall not use that land nor remain in possession of it until you have settled the price ;" and she might have filed a bill in this Court, and would have immediately obtained an injunction, and would have had the costs of such a proceeding. Therefore, negligence there has been on both sides; Miss Fawell and Mr. Stretton have been negligent in allowing things to remain in this state so long, and there has been equal negligence on the part of the company; but I have no hesitation in coming to the conclusion that the notice to treat made the company, in this Court, the equitable owners of the land, and nothing remained to be done but to ascertain the price. It has been as much the fault of Mr. Stretton as of the solicitors of the company that this was not ascertained years ago. Diligence between vendor and purchaser there must be. I put this case during the argument: A contracts to sell land to B; if the purchaser desires to have the contract enforced he must be diligent, and must take his proceedings within a reasonable time, and it has been decided in Watson v. Reid (1 Russ. & M. 236; s. c. Tam. 382), that a delay of even a year will disentitle a person to a decree on a bill for specific performance. But if a purchaser enters into possession and remains in possession, and the vendor has the folly to come here without requiring payment of the money, it is in vain for either of the parties to talk of delay; the mutual acquiescence in the delay is as much binding on one as it is on the other. If, therefore, the purchaser, being in possession, finds himself harassed by an action of ejectment by the vendor, he has only to file a bill, and although he has been in possession for fourteen years, and the purchase-money has not been paid, his want of diligence in filing the bill is completely answered, because it is the folly of the other side in allowing him to remain in possession so long without paying the purchase-money. So in this case, a bill for specific performance might have been maintained or the proper proceedings might have been taken fourteen years ago; and it is, therefore, in consequence of the folly of Mr. Stretton that this possession has been retained so many years without the price being paid. So far, then, as the notice to treat is concerned, I am of years; at all events the notice cannot be considered higher than a contract, and after the delay that has taken place in opinion that the company are the equitable owners of the land. As owners of the property they must be treated, and Mr. Stretton, the plaintiff, must be treated as the person entitled to be paid the price to be ascertained in the mode preseribed by the Lands Clauses Consolidation Act, which is by a course of law. But even if there had been no notice to treat, and the company had done nothing to put themselves in the proper possession of the land, then I am happy to say I am equally clear that the 124th section of the Act would apply to the case, and that the adoption of the construction of this section contended for by the plaintiff, would have caused great injustice to the railway company, who have intended to act in good faith, and to do justice to all parties. They find that from some mistake or inadvertence, or some accident, they are in possession of a very small piece of land, for which money will compensate; but they are not bound, because they find the landowner unreasonable, and unwilling to accept a reasonable offer, to accede to a demand of such an extravagant nature as that which is made here. For the 124th section enacts thus: "If at any time after the promoters of the undertaking shall have entered upon any lands which, under the provisions of this or the special Act, or any Act incorporated therewith, they were authorised to purchase, and which shall be permanently required for the purposes of the special Act, any party shall appear to be entitled to any estate, right, or interest in or charge affecting such lands, which the promoters of the undertaking shall through mistake or inadvertence have failed or omitted duly to purchase or to pay compensation for, then, whether the period allowed for the purchase of lands shall have expired or not, the promoters of the undertaking shall remain in the undisturbed possession of such lands, provided that within six months after notice of such estate, right, interest, or charge in case the same shall not be disputed by the promoters of the undertaking, or in case the same shall be disputed, then within six months after the right thereto shall have been finally established by law in favour of the party claiming the same, the promoters of the undertaking shall purchase or pay compensation for the same, and shall also pay to such party or to any other party who may establish a right thereto, full compensation for the mesne profits or interest which would have accrued to such parties respectively in respect thereof, during the interval between the entry of the promoters of the undertaking thereon and the time of the payment of such purchase money or compensation by the promoters of the undertaking, so far as such mesne profits or interest may be recoverable in law or equity; and such purchase money or compensation shall be agreed on or awarded and paid in like manner, as according to the provisions of this Act the same respectively would have been agreed on proceeding upon it the contract must be treated as abandoned or awarded and paid, in case the promoters of the undertaking had purchased such estate, right, interest, or charge before their entering upon such land, or as near thereto as circumstances will admit." Now it is admitted that the company were authorised to purchase these lands; it is admitted that they entered into possession; and it is distinctly proved, notwithstanding the admission to the contrary in the special case in the Court of lawwhich after all was only for the purpose of taking the opinion of the Court and was not final and conclusive between the parties-that they entered into possession with the acquiescence of Miss Fawell; and, therefore, even if the company had not entered on the land by mistake or inadvertence, still they would be within the 124th section. And then the 125th section most properly provides that the compensation to be paid under the previous section is not to be the value of the land at the particular time the assessment is made, but the value at the time the lands were entered upon, that is, in the present case, in the year 1856. Now, therefore, inasmuch as the company had the power to take the land, and inasmuch as they did enter upon it, and it is permanently required for the purposes of the company's works, the case is brought strictly and directly within the 124th section. But it has been argued that it is not within this section, because the company did not omit to purchase the land by mistake or inadvertence. I shall put the most liberal interpretation upon this section, and I should say that if a company has been prevented by any accident from paying that which it was clear they were competent to pay, and might have been anxious and willing to pay; that if, being in a situation to do ample justice to the landowner, by any oversight they have omitted to do that which they ought to have done-I should treat almost any case of that kind as falling under the words "mistake or inadvertence." Now what is the mistake that was made here? It was this: Miss Fawell considered herself entitled to two acres and a half of land; the company disputed that, and the result was that it was proved that she, or rather her successor, Mr. Stretton, was only entitled to one acre and four perches. When was that finally ascertained? The 124th section provides for the very circumstance that existed here. The result was finally ascertained by the decision of the Court of Queen's Bench on the 25th of January last, and we are now in June, and within six months from the time that the plaintiff's right was finally ascertained; and the company are entitled, under the 124th section, to remain in undisturbed possession of the land, provided that within six months after the plaintiff's right was established by law they pay the purchase money or compensation. Now, what was the object of the proceedings at law? I have expressed my opinion of the folly of the mistake which was made by the company in allowing those proceedings to go on, |