*

regards his legal title, that came before a Court of Law in Ireland, which decided that the legal title, under the Statute of Limitations, did prevail independently of any equity. That depended upon a very nice point. If there had been originally a conveyance in this case of the legal estate instead of their being a conveyance of the equitable estate, it is perfectly clear that the Statute of Limitations would have been no bar, because then William, taking by a conveyance (which is what distinguishes this case from the cases where there is an adverse possession without a conveyance) from a man who under a settlement was tenant for life, never could have set up his possession during that tenancy for life, against the tenant for life; and although it might have *1084 been conveyed to him in words for his own life, he could not have set up that estate, so acquired by actual conveyance, as a bar to the remainder-man under the settlement under which the person who conveyed to him claimed. This singular state of circumstances therefore happened, and the consequence is what I will state. The legal fee was outstanding; the conveyance, therefore, was only of the equitable estate; but the person who had the equitable tenancy for life conveyed to William, what must be held to pass (with the view I am now regarding it) only his life estate, and the remainder-man was not affected. If the person who had thus conveyed the equitable estate ultimately obtained a conveyance of the legal fee, that was, as regarded him, an admission that the legal fee at that moment was an operative estate. What was the consequence? It was this: that the legal estate being afterwards got in, his previous conveyance would not, as in many cases of life interest, operate by way of estoppel against the legal fee thus subsequently obtained; but the moment he obtained that legal fee he became the trustee for the persons who claimed under the settlement. Now, who were the persons who claimed under that settlement? The first was William Scott, for he had by conveyance obtained the right to the equitable estate of Bindon Scott, and when Bindon Scott therefore obtained the legal fee, William Scott became entitled to the equitable life interest of Bindon Scott to be carved out of the legal fee. Then at law it would have been open to contend (I mean to give no opinion binding myself at all upon that point, but I confess I should be strongly disposed to think so) that under the Statute of Limitations this view might have been taken of it: This estate which you (William Scott)

claim, you claim by conveyance from Bindon; the legal estate was at the time of that conveyance outstanding; Bindon *1085 * got in that legal fee; Bindon never could have proceeded against you upon that legal estate, because if he had been so foolish as to bring an ejectment, Equity would instantly have stopped that ejectment; for by the operation of the conveyance in fee he would have been estopped from asserting any right to that legal estate during the whole of his own life. Should not there be a corresponding right? If the one party is to be bound, ought not the other party to be bound? Where was the difficulty for a Court of Law to say that William Scott held under Bindon Scott, and that Bindon Scott having obtained the legal estate, the possession of William Scott was the possession of Bindon Scott, and that William Scott claiming under Bindon Scott, never could be heard to say that he held adversely to Bindon by the settlement under which William had obtained nothing more than a life estate. However, it was decided otherwise, and this House is not now called on to reverse that decision.

Then as regards the equity. I can have no doubt in recommending your Lordships to hold, as a point of law not to be disputed, that that legal estate became a trust for all these persons, and that consequently, although, at law, William Scott might himself, as against the children of Bindon Scott, set up his possession, it was, in reality, no adverse possession. Although that phrase may perhaps be used in a different sense to that in which it was used before the 3 & 4 Wm. 4, c. 27, yet I see no difficulty in advising your Lordships to come to the conclusion that that legal estate never could be set up as against those parties who had, after the conveyance of the equitable estate, entitled themselves to the legal estate. The question at last resolves itself into the right as between these parties under the different settlements. Who is

entitled to the estate? Take the first settlement under *1086 which Bindon * Scott claims; it is perfectly clear, in point of law, that upon the face of that settlement, it is a settlement for valuable consideration, which never can be impeached. No settlement was ever more so. Like any other deed, it may be impeached by showing that the consideration is not truly stated; that that which appears to be the real consideration was not the true consideration; that it was a sham and a pretence; that there was collusion, and that there was fraud. That is a question for a

jury. The parties here went to a jury upon that very question, and a wrong verdict was given; but the Court reversed that finding, and properly stated that there was not a scintilla of evidence to show that the first consideration was a fraudulent one. Then what is the consequence? The first deed stands, and the second deed cannot interfere with it as far as regards the consideration. The parties had a right to re-try that question; but when the moment came for that purpose, they entirely withdrew from the opportunity which had been offered them. They deserted the case. The decree therefore necessarily went against them in the Court of Equity, and this House is bound to consider that, in withdrawing from the trial of that question, the appellant admitted that the consideration in the first deed was a valid and real consideration, and that there was no pretence for denying it. This House must consider that as a settled point.

When we look at the deeds with the eye of a real-property lawyer, all difficulty vanishes; I never, indeed, could understand where the difficulty was. The first deed was a perfectly binding deed, and there was an attempt to concoct and set up a title as against that deed. I cannot mention Mr. Burton's name without stating the high respect and regard which I have for the memory of that learned person, who became so illustrious a Judge

in

Ireland; but he was pressed with business, and was * 1087 not able to do more than chalk out the draft of the intended deed, and consequently he did not give the advice which I should have expected from his practical knowledge; he advised the parties, if the first deed was not upon the register, to do something, which no counsel ever should advise parties to do, namely, to put aside and cancel a deed, and endeavour to make a title in lieu of it. In my experience, I never knew any attempt of the sort which did not end in failure, and in involving the parties in litigation probably as expensive and as long as this has been.

The attempt was to get rid of the deed of February, and form a new title. These two subsequent deeds were meant for that purpose; but the first deed, that of February, now stands as the deed for valuable consideration; it was prior in point of date, and was upon the register before the second deed was executed, so that the second deed, whether for valuable consideration or not, never could come into competition with the first.

It was the absolute duty of the solicitor to register the deed of

February, which included other lands besides those mentioned in the deed of June, in order to give effect to those titles which were not intended to be affected by the new arrangement. The new arrangement was a contrivance (I regret it ever was resorted to) to defeat the actual title, and it has failed in its object. I am clearly of opinion that there is not the least pretence for affecting the respondent's title in this case; and I therefore submit to your Lordships that this appeal should be dismissed, with costs.

Appeal dismissed: Decretal Order of 28 June, 1848, and Decree of 11 December, 1850, affirmed, with costs.

Lords' Journals, 13 March, 1854.

*1088

* WILLIAM v. ROBINSON.

1854. February 21, 23, 24.

FREDERICK WILLIAM, Marquis of Bristol, Plaintiff in error.
JANE MARY ROBINSON, Defendant.

Practice.

On the hearing of a cause, in which the question intended to be brought up for decision depended on the form of the pleadings, and the House, after argument, was of opinion that the pleadings would not allow that question to be properly decided, time was given to allow an arrangement between the parties, by which the pleadings might be altered for that purpose.

THIS case arose upon quare impedit. The facts were stated in the form of a special verdict, and judgment was given thereon by the Court of Common Pleas, which judgment was afterwards reversed in the Court of Exchequer Chamber.2 A writ of error was brought in this House, and, after the arguments had been fully heard,

THE LORD CHANCELLOR intimated that the state of the pleadings would not enable the House to decide the question really intended to be brought into discussion. The House would allow it to stand over, to enable the parties to alter the pleadings so as to effect that purpose.

1 11 C. B. 208.

211 C. B. 241.

The cause accordingly stood over, but before it came on again, a compromise had taken place.

Mr. Cowling and Mr. Badeley (Mr. Scotland was with them) argued the case for the plaintiff in error, and Mr. Bramwell and Mr. Hayes (Mr. Brewer was with them) for the defendant in

error.

*MAYOR OF LONDON v. COMBE.

1854. Merch 13, 14.

MAYOR OF LONDON and others, Appellants.
COMBE and others, Respondents.

Practice.

*1089

The House will refuse to allow a cause to stand over indefinitely, though upon an understanding that the appeal is to be compromised, but will require it to be proceeded with in its regular turn, or to be withdrawn.

THIS was an appeal against a decree of Lord Chancellor Lyndhurst, which had affirmed a decision of Vice-Chancellor Knight Bruce.

In this case there had been a bill filed by the appellants in the Exchequer in Equity to enforce their right of metage of all grain brought up the Thames to the brewhouse of the respondents. The respondents had filed, in the same Court, a cross bill of discovery, to which the defendants put in their answer, admitting possession of books, &c., but denying, on belief, that these books if produced would prove the allegations in the cross bill. The cause was transferred by 5 Vict. c. 5, with all others then pending in the Exchequer in Equity, to the Court of Chancery, and was heard before Vice-Chancellor Knight Bruce, who, in June, 1842, made an order in conformity with the prayer of the cross bill,1 and the Lord Chancellor (Lord Lyndhurst) on appeal (December, 1845) confirmed the order.2

An appeal was brought against that decision. When the cause was called on.

The Solicitor-General (Sir R. Bethell, with whom was Sir F. 1 1 Younge & C. Ch. 631.

15 Law J. N. S. Ch. 80.