Assignment by Husband of Wife's Reversionary Interest. dence given by the witness whose testi- | doubt be interesting to our readers. The mony is impeached, cannot be looked facts were these:-By articles of marupon as evidence coming by surprise up-riage, made previous to the marriage of on the plaintiff, seeing that it was evidence directly applicable to the issue which the plaintiff came to try, and being such as he ought then to have been prepared to rebut. We ought, therefore, not to grant a new trial, unless it is made out that on a second trial the position of the plaintiff will be materially different from that at the former trial. Miss Elison, a young lady under age, with Ralph Nicholson, it was agreed when she came of age to assign to trustees her reversionary interest in certain personal property, expectant upon the decease of her father and mother, upon the usual trusts of a marriage settlement. The marriage took place. The lady came of age, and the settlement was made in pursuance of the articles. Mrs. Nicholson survived her On examining the affidavits in support of the application, it appears to us that husband. the only affidavits which state any mate-life died, and the family affairs being rial facts, tending on any solid ground to thrown into chancery, Mrs. Nicholson inimpeach the testimony of the defendant's sisted that she was an infant when the argroom, are, the affidavit of the plaintiff ticles were executed, and therefore she himself, which cannot be used on a second trial, and that of the plaintiff's mother, who was examined on the plaintiff's behalf on the last trial, and might on that occasion have given in court the evidence which she now tenders on affidavit. We therefore think there is in this case no sufficient ground for granting a rule. Rule refused. Miscellaneous. ASSIGNMENT BY HUSBAND OF THE WIFE'S EQUITABLE REVERSIONARY INTEREST IN PERSONALTY, OR HER EQUITABLE I CHOSES IN ACTION. THAT a husband cannot, either by himself or in conjunction with his wife, and either by deed, or by procuring her consent to be taken in court, or in any other manner, make an assignment, either voluntary, or for a valuable consideration, or through the means of the bankrupt or insolvent laws, of his wife's equitable reversionary interest in personalty, or her equitable choses in action, so as to defeat the right of the wife, if he happen to die and she to survive him, before the property reduced into possession, the case of Purdew v. Jackson, 1 Russ. p. 1, has always been considered to have settled. The other cases on the point usually referred to are Honnor v. Morton, 1 Russ. 65; and Hornsby v. Lee, 2 Madd. 16. There has recently been a case before the Vice Chancellor of England clearly recognizing that doctrine, which will no was not bound thereby, and that she was absolutely entitled to the fund. Whether she was or not was the question, and that depended upon whether the assignment by her husband of her reversionary chose in action was valid. The case appears to have been well argued, and all the cases above referred to were cited. The decision was in favor of Mrs. Nicholson. The Vice Chancellor said:-After repeated discussion in the case of Purdew v. Jackson before Sir Thomas Plomer, and by Sir Thomas himself: he said, " After this repeated consideration of the subject, I still continue of opinion that all assignments made by the husband of the wife's outstanding personal chattel which is not, or cannot be then reduced into possession, whether the assignment be in bankruptcy or under the insolvent acts, or to trustees, for payment of debts, or to a purchaser, for valuable consideration, pass only the interest which the husband had subject to the wife's legal right by survivorship.” After reviewing all the authorities referred to, his honor concluded as follows:-" It is useless to be always travelling over the same ground. I consider the principle laid down by Sir Thomas Plomer, and twice affirmed by the Lord Chancellor, to be decisive of the present question. Whether the husband dies in the lifetime of the tenant for life, whereby the chose in action cannot as against the wife be reduced into possession, and whether he survives and dies before it is reduced into possession, the same result must, in my opinion, follow: and the con The Opposite sides of Westminster Hall. sequence is, that in the present case a declaration must be made, that Mrs. Nicholson's covenant, which might operate as an assignment, does not now affect that portion of the choses in action of his wife which was not reduced into possession in his lifetime. Elison v. Elwin, 13 Sim. 309." THE OPPOSITE SIDES OF WESTMINSTER HALL. of Edward III., the king's bench and chancery actually had continually followed the king's person, the chancellor and his officers being entitled to part of the purveyance made for the royal household. By the 28th Edw. 1, c. 5, the lord chancellor and the justices of the king's bench were ordered to follow the king, so that he might have at all times near him sages of the law able to order all matters that should come to the court. But the two courts were now, (temp. THE following extract from Lord Camp- Edw. 3,) by the king's command, fixed in bell's work, the "Lives of the Chancel- the places where, unless on a few extralors," show why the opposite sides of ordinary occasions, they continued to be Westminster Hall meant (what they no held down to our own times, at the upper longer do) the equitable and common law end of Westminster Hall, the king's jurisdictions. The allusion to the arbi- bench on the left hand, and the chancery trary system of purveyance and pre-emp-on the right; both remaining open to the tion, and render in kind, discloses a state hall, and a bar being erected to keep off of things founded in necessity and good the multitude from pressing on the judges. sense at the period in question, though "The chancellor, on account of his suvery different from the modern arrange-perior dignity, had placed for him a great ments of Windsor Palace. His lordship, discoursing upon the legal changes established in the long reign of Edward III, observes, that— marble table, to which there was an ascent of five or six steps, with a marble chair by the side of it. On this table writs and letters patent were sealed in "There was introduced about this time the presence of the chancellor, sitting in a great improvement in the administration the marble chair. Here he received and of justice, by rendering the court of chan-examined the petitions addressed to him. cery stationery at Westminster. The And on the appointment of a new chanancient kings of England were constantly cellor he was inaugurated by being placed migrating-one principal reason for which in this chair. was, that the same part of the country, even with the aid of purveyance and preemption, could not long support the court and all the royal retainers, and the render in kind due to the king could be best consumed on the spot. Therefore, if he kept Christmas at Westminster, he would keep Easter at Winchester, and Pentecost at Gloucester,-visiting his many palaces and manors in rotation. The Aula Regia, and afterwards the courts into which it was partitioned, were ambulatory along with him, to the great vexation of the suitors. This grievance was partially corrected by Magna Charta, which enacted that the court of common pleas should be held in " a certain place," -a corner of Westminster Hall being A celebrated counsellor had a very large fixed upon for that purpose. In point of brief sent to him with a very small fee law, the court of king's bench, and the marked on the back of it. On being court of chancery may still be held in asked if he had read his brief, he pointed any county of England 'wheresoever in with his finger to the fee, and said, "As England the king or the chancellor may be.' far as that I have read, and for the life of Down to the commencement of the reign | me I can read no further." "The marble chair and table are said to have been displaced when the court was covered in from the hall. But till the courts were finally removed out of Westminster Hall, there were easy means of communication between the chancery and the king's bench, which enabled Sir Thomas More to ask his father's blessing in one court, before he took his seat in the other; and I myself remember, when a student of law, that if the chancellor rose while the king's bench was sitting, a curtain was drawn, and the judges saluted him."-Lord Campbell's "Lives of the Chancellors," vol. 1, p. 214. THE New York Tegal Observer. VOL. IV.] NEW-YORK, AUGUST, 1846. THE LAW OF VENDOR AND PURCHASER. DAMAGES FOR LOSS OF BARGAIN. As a general proposition, it may be affirmed that every vendor holds himself out to the world as competent to give a good title. This seems to follow from the elemental principles of the contract of sale; for by all the definitions of that contract the vendor is not only understood to undertake that the thing sold is his own, but that he can confer a proprietary right on the purchaser. Thus, if I sell a quantity of corn, and fail to execute my contract, I am liable to an action for damages. But suppose I sell an estate, and it turns out that my title is bad or defective, Can the purchaser in that case recover damages for the loss of his bargain? He cannot; and unless he impeach me of fraud, I am bound to pay him nothing but his costs out of pocket; for, as Lord Hardwicke said, there is no such thing known in England as a mathematical certainty of a good title to iand, Lyddal v. Weston, 2 Atk. 20. The leading case on this point is that of Flureau v. Thornhill, 2 W. Black. 1078, where, on a purchase by auction, of a rent issuing out of certain houses, the vendor proved incapable of giving a title, and the purchaser thereupon brought his action for damages. The evidence was contradictory; that adduced on behalf of the plaintiff going to show that his bargain was a remarkably good one; while the evidence on the other side established that it was by no means advantageous, the auctioneer in fact having been ordered to let the property go for considerably less than the sum at which it was knocked down by the plaintiff. The defendant had moreover paid the plaintiff's deposit with interest into court. But the jury, contrary to the direction of the Chief Justice De Grey, gave a verdict for £20. In other words, the jury did not think that payment [MONTHLY PART, back of the deposit with interest was sufficient. They held that the purchaser. was entitled to compensation for the disappointment sustained by him, in consequence of the vendor erroneously, though not fraudulently, representing himself as competent to give a good title, and inducing the purchaser to deal with him on that footing. On a motion for a new trial, however, the Chief Justice said, "I think the verdict wrong in point of law. I do not think the plaintiff can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost." And Mr. Justice Blackstone, (the reporter of the case,) following the Chief Justice, and concurring with him, stated the ground of the decision to be, that " these contracts are merely upon condition, frequently expressed, but always implied, that the vendor had a good title." Ilence the purchaser of an estate never assumes the title to be good, but always calls for proof of its validity. He acts on this principle, and therefore the loss of his bargain, however profitable it might have proved, will be no ground for damages unless he can establish fraud against the vendor. Bratt v. Ellis, and Jones v. Dyke, 3 Sug. Vend. & Pur. Appx. Nos. 7 and S. For the same reasons it was held in this case of Flureau v. Thornhill, that the purchaser was not entitled to any compensation for the loss he suffered from having sold out of the funds to meet the price, for he had done so prematurely. We must acknowledge, however, that Lord Tenterden on one occasion made a remark approximating to a dissent from the reasoning pursued in Flureau v. Thornhill. The observation to which we refer fell from his lordship in Hopkins v. Grazebrook, 6 Barn. and Cress. 31, a case which came before the Court of King's Bench, in 1826. There the defendant had contracted for the purchase of an estate, but had not obtained a con 66 The Law of Vendor and Purchaser. purchase, but brought an action against the original vendor, claiming as damages the expenses which he had incurred in the investigation of the title; the profit which would have accrued from the resale of the property; the expense attend veyance. In this situation, he sold the intelligible." 2 Vend. & Pur. 49. The estate by auction, stipulating to make a distinction appears to be quite intelligood title by a certain day. This, how-gible. ever, he was unable to do, as his own In the case of Walker v. Moore, devendor refused to convey. The second cided by the Court of King's Bench in purchaser, therefore, brought an action 1829, the plaintiff, having contracted for against him, and recovered not only the the purchase of an estate, an abstract expenses which he had incurred, but also showing a good title was delivered to him damages for the loss which he had sus- by the vendor. The plaintiff, before testtained by not having had the contracting the accuracy of this abstract by an carried into effect. The commentary of examination of the original deeds, sold Lord Tenterden, C. J., though character- certain parts of the property at a profit. istically cautious, may be thought to cast On subsequently comparing the abstract a doubt on Flureau v. Thornhill, for he with the deeds, it was discovered that the said, "On the present occasion I will title was defective; whereupon the subonly observe, that if it is advanced as a purchasers refused to complete their general proposition, that where a vendor purchases. In these circumstances, the cannot make a good title, the purchaser plaintiff not only refused to complete his shall recover nothing more than nominal damages, I am by no means prepared to assent to it. If it were necessary to decide that point, I should desire to have time for consideration." He then proceeds to distinguish the case in hand from that of Flureau v. Thornhill, bying that re-sale; and the sums which he showing that in Flureau v. Thornhill was liable to pay to the sub-contractors there was some title in the vendor; where- for the expenses incurred by them in exas, in Hopkins v. Grazebrook, there was amining the title. The decision of the not even the shadow of a title." Mr. court was, that he was entitled to recover Justice Bayley, following his lordship, only the expenses he had himself incurred observed, that "the case of Flureau v. in the investigation of the title, and but Thornhill was very different from this; nominal damages for the breach of confor here the vendor has nothing but an tract, as no fraud could be imputed to equitable title. Now, where a vendor the defendant; for it was held that the holds out an estate as his own, the pur- plaintiff ought to have examined the abchaser may presume that he has a satis-stract with the title-deeds before taking factory title; and if he holds out as his the steps in respect of which he claimed own that which is not so, I think he may damages, inasmuch as by the exercise of be very fairly compelled to pay the loss ordinary care he might have averted the which the purchaser sustains by not hav-loss which had arisen from his negli ing that for which he contracted. There gence; and as there was no fraud impuis nothing to prevent a man from selling table to the defendant, no claim for dambefore he has himself received a convey- ages was sustainable on the part of the ance. It is very often convenient and plaintiff. This case is therefore confirmadvantageous to do so. But the step is atory of Flureau v. Thornhill. But they attended with this risk, that if the vendor both clearly imply, that if fraud or unin such circumstances be rash enough to fairness could have been brought home represent himself as having a good title, to the defendants, the result would have he will be bound to make compensation been different. Indeed, one of the Judges in damages to the purchaser for disap-(Mr. Justice Bayley) in Walker v. Moore, pointment of his bargain. This is all laid down this proposition, that "if there that was decided in Hopkins v. Grazebrook; a case which we hardly think deserves the censure bestowed upon it by Sir Edward Sugden, namely, that it will tend to much litigation before the distinction which it introduces is thoroughly were mala fides in the original vendor, he was not prepared to say that the purchaser might not recover the profit which would have arisen from the re-sale. When we say, therefore, that damages are not recoverable for the purchaser's Sale of Expectancies—Inadequacy of Price. disappointment, the proposition must always be taken subject to this qualification, that on the part of the vendor there has been honor and perfect good faith throughout the transaction. sary for the party seeking the benefit of that transaction to show that he gave a fair price. That proposition has been the subject of much observation; and it has been considered as interfering a good deal with that proper discretion, which persons SALE OF EXPECTANCIES-INADEQUACY who are capable, according to the laws OF PRICE. Ir was remarked by Sir William Grant, that courts of equity have extended such a degree of protection to heirs dealing with their expectancies, as almost to establish an absolute incapacity to bind themselves; reducing them in fact very nearly to the situation of infants, so as to guard them from the effects of their own conduct. Hence, in all cases of this character it is not merely incumbent on the party contracting with the heir to show, in the event of the contract being subsequently challenged, that there has been no fraud-but he is, moreover, bound to make good the bargain in another way, by showing that a full and adequate consideration has been paid." of this country, of disposing of their property, ought to be at liberty to exercise, At the same time it does establish a rule, which has the effect of protecting persons who are, generally speaking, very much in need of protection. Of the policy of that rule, it is not my purpose to say any thing. That rule has been established in the case of Gowland v. De Faria, and has been recognized since. "But another proposition has been supposed to be established by that case, which is, that in transactions of this sort, the court has only to look at the value of the reversionary interest, calculated according to the tables. I do not find any such proposition established by Sir Wm. Grant in that case. Sir William Grant, in observing on the case, states the eviIn a contract entered into between par-dence before him, namely, that of the acties standing in pari casa-mere inade-tuaries, and says there is no other eviquacy of price, (unless it be such of itself | dence in the case, and he then proceeds to betoken fraud,) is no ground for setting on that evidence, there being no other. it aside, but inadequacy of price is of itself sufficient for this purpose, whenever it appears that the thing sold is a reversionary interest, and that the party selling is in the situation of an expectant heir, who is and has ever been an especial object of the favor of courts of equity. Disposing of the case of Gowland v. De Faria, 17 Ves. 24, Sir William Grant observed, that this was undoubtedly throwing a heavy burden on the purchaser, but in this particular description of case he was subjected to this burden on principles of public policy. It would seem to have been better to adopt some course for the purpose of as certaining more correctly the value, in the sense in which that term is used in inquiries of this kind. Sir Wm. Grant, however, did not adopt that course, and he decided upon the only evidence he had, that evidence being to the effect, that an inadequate consideration had been given. It is, therefore, not an expression of opinion by Sir W. Grant, that that is a rule (the rule of the tables) which ought to be adopted. It is only a dealing with that case, with reference to its own peculiar circumstances. The establishing of such a rule would make it impossible for an expectant heir to dispose of his interest at all. That, I apprehend, is quite a sufficient objection. It is a rule also,, which as a general rule, being calculated, on the result of a great mass of cases, must apply with great injustice in a vaThere are two propositions, one of riety of individual cases. The lives are which was established, and the other was supposed to be of average value; but the supposed to be established in that case. life in question may be an extraordinary The one established was that in a transac-good or an extraordinary bad one-likely tion with an expectant heir, it was neces-to last beyond the usual time, or the con We have said this much in order to introduce some remarkable observations of Lord Cottenham on this subject, in considering which, his lordship takes occasion to advert to what had fallen from Sir William Grant in Gowland v, De Faria, Lord Cottenham, adverting to that case, says: |