of the said Alexander Nixon had acquired an indefeasible title, by an adverse possession of more than twenty years: vide this case, reported as Scott v. Nixon (a). Accordingly, by an indenture, bearing date the 3rd day of April 1844, and professing to be made by Master Litton, of the first part, James Scott, Esq., of the second part, Adam Nixon and Alexander Nixon, of the third part, the said Alexander Nixon and Maryanne his wife, of the fourth part, Hannah Scott, Elizabeth Scott and Mary Scott, of the fifth part, Ralph Scott, of the sixth part, Adam Nixon, of the seventh part, Montgomery Downes Nixon, Frederick Nixon, Mary Nixon, Henry Carey Field, Jemima Field and Espine Ward and Sophia his wife, of the eighth part, William Ribton Ward and Montgomery Downes Nixon, of the ninth part, Jemima Nixon, of the tenth part, the Rev. Alexander Nixon, of the eleventh part, the Rev. Thomas James Ovenden, of the twelfth part, Alexander Power, of the thirteenth part, the said Adam Nixon, of the fourteenth part, and the said George Rankin, of the fifteenth part, the parties thereto of the first fourteen parts conveyed to the said George Rankin Rea's-park or Rea's-tenement in fee. This deed contained a recital that the legal estate in those lands was in the representative of the trustee of Alexander Nixon's will; and the conveyance was not executed by such representative. On the 26th of June 1844, the said Joseph Rankin conveyed the lands of Rea's-park to Thomas Kernaghan, the appellant's husband, in fee. In 1848, Thomas Kernaghan made a conveyance of all his property to trustees, for the benefit of his creditors. In 1849, the trustees, having set up Mr. Kernaghan's property for sale by auction, Rea's-tenement was purchased by Edward Duffy. On the investigation of the title on behalf of the purchaser, it was objected that the property was subject to the petitioner's title to dower. This objection was afterwards compromised, by the parties permitting the purchaser to retain £200 out of the purchase-money, the petitioner refusing to release her dower. On the 8th of August 1850, the lands of Rea's-park were conveyed to Edward Duffy in fee, by a deed in which the petitioner was named as a party, but not executed (a) 6 Ir. Eq. Rep. 8; S. C., 3 Dr. & W. 388. 1859. Ch. Appeal. KERNAGHAN v. M'NALLY. Statement. 1859. Ch. Appeal. KERNAGHAN v. M'NALLY. Statement. 1 Argument. by him, and containing a recital that the petitioner was entitled to dower out of the said lands, contingent on her surviving Thomas Kernaghan. On the 21st of January 1851, said Edward Duffy conveyed Rea's-park to the respondents Charles M'Nally, Daniel Boylan and Thomas Gartland, in fee. Thomas Kernaghan having died, the petitioner instituted this suit, for the purpose of recovering her dower out of Rea's-tenement. At the hearing in the Court below, the deed of the 8th of April 1844 was given in evidence on the part of the petitioner, who had had no opportunity of seeing it before that hearing; and, it appearing, by the recitals in that deed, that the legal estate was outstanding in trustees, the LORD CHANCELLOR made a decree dismissing the petition. From this order the present appeal was brought. The Solicitor-General (Mr. R. Deasy) and Mr. F. W. Walshe (with them Mr. Richey), for the petitioner. The widow, in a suit for dower, has a clear right to have an opportunity of trying her title in the Master's office, or by an action at Law, if her title to dower be controverted: Mundy v. Mundy (a); Curtis v. Curtis (b); Dormer v. Fortescue (c); Darcy v. Blake (d). And she has also a right to the assistance of the Court, to enable her to have an opportunity of trying that title. That is all the relief we seek here, although we have made a case which really shows the petitioner to be entitled. The decision in Scott v. Nixon (e) shows that the legal estate was vested in the younger sons of Alexander Nixon, and that the trustees of his will were as much excluded from the property as the eldest son was. That decision shows that the deed was mistaken in reciting the legal estate to be in the trustees; and we only ask not to be concluded by this erroneous recital. If we be not, Sir Edward Sugden's decision in Scott v. Nixon determines the whole case in favour of the petitioner; and, even if there be anything like an estoppel in that (a) 2 Ves. jun. 125. (c) 3 Atk. 130. (b) 2 B. C. C. 620, 632. (e) 6 Ir. Eq. Rep. 8; S. C., 3 Dr. & War. 388. deed, the conveyance to the respondent operates as forcibly in the petitioner's favour. Mr. Brewster and Mr. Lawson, contra. The deed states the finding of the report, under which the property was sold; and as the petitioner can only make title through that deed, she is estopped from disputing the averments in it: Bowman v. Taylor (a). The deed clearly failed to pass a legal estate. The younger children had no colour of title, save under the will, and could not be heard to say that they did not derive their title under it: Hawksbee v. Hawksbee (b); Anster v. Nelms (c); Garrard v. Tuck (d); Melling v. Leak (e). The LORD CHancellor. This is a very singular case. I think that there ought to be some further inquiry; and it would only put the parties to a needless expense to leave the petitioner to institute another suit; but the petition of appeal does not at all point to the case made here at the Bar, nor was it suggested at the hearing before me. Under these circumstances, I think that there ought to be a further inquiry, but that the appellant must pay the costs of the proceedings, which her own conduct has rendered necessary. I think that there must be a reference to one of the Masters, whether Mr. Kernaghan was seised of these lands. The LORD JUSTICE OF APPEAL. The petitioner, who claims dower out of the estate purchased by her deceased husband, naturally relied on the deeds which constituted his title. One of them, being the conveyance under the decree of this Court to a trustee for him, was produced by the respondent, and was read, and entered as the evidence of the petitioner. The effect of this deed, as conveying a legal title, was in fact the only matter discussed; and the LORD CHANCELLOR decided, (b) 11 Hare, 230. 1859. Ch. Appeal. KERNAGHAN v. M'NALLY. Argument. Judgment. (a) 2 Ad. & El. 278. (c) 1 H. & Nor. 223. (d) 8 C. B. 231. (e) 16 C. B. 652. 1859. Ch. Appeal. KERNAGHAN v. M'NALLY. Judgment. most properly, that it did not pass the legal estate, not having been executed by the heir of the surviving trustee in the will of Alexander Nixon, or by a trustee legally constituted in his place. This assumed (and there was no evidence to the contrary presented to the view of the Court) that the legal estate had passed to the trustees in the will of Alexander Nixon, of 1766, as the deed recited; and the objection to the petitioner's claim, so far, appeared to be conclusive. There were, however, several orders and proceedings in Scott v. Nixon, in which the lands had been sold to a trustee for the petitioner's husband, entered as proofs on the part of the petitioner; and now, for the first time, they are brought under our consideration. I do not believe that there is an allusion made in the case of either the appellant or respondent to them. The result is, that they disclose a state of the title quite at variance with the recital in the deed of sale, on which the petitioner had entirely rested, and on which alone the LORD CHANCELLOR had acted in dismissing the petition. From them the real state of the title appears to be, that the lands were purchased by the devisor after the execution of his will; that they did not pass to the trestees, but that the six sons claiming as devisees of the testator became seised and possessed of them, as if they had been well devised; and so had acquired such a title by adverse possession as the purchaser was bound to accept. This evidence satisfies the object which I had in view in asking whether, besides the deed of sale, there were any deeds or facts on which the dowress could rely, as putting her claim on grounds different from those founded on the truth of the recitals of the purchase deed under the Court. The consequence of the evidence I have alluded to, as now disclosed, is, either that the petition should be dismissed without prejudice, or that we should reverse the decree, and direct an inquiry into the title. The latter is, for all purposes, the more convenient course; but it must be on the terms, as to costs, suggested by the LORD CHANCELLOR. Chancery Appeal Hearing Book, 1, f. 330. 1860. Banktcy., &c. Court of Bankruptcy and Ensolvency. In re JOHN QUIN a Bankrupt; Ex parte CHRISTOPHER MOORE.* June 6, 14. B, a builder, to take down the front wall of his house, and execute some other re pairs. While the works were in the occupier of the adjoining house, served a notice upon A, that injury was likely to progress, C, result to his In this case Christopher Moore sought to prove on the bankrupt's A employed estate for £251. 7s. 11d. The facts, as appeared by the affidavit of Moore, sworn the 30th of May 1850, were as follows:-In 1859, the said Christopher Moore, being desirous of taking down and re-building the front wall of a house occupied by him, No. 144 Upper Dorset-street, and of making certain alterations in the next house, No. 145, entered into a contract with the bankrupt, who was a builder, for the above work, for the sum of £150. Some extra works, not in the estimate, were done, and the whole completed according to contract. On the 17th of September 1859, the bankrupt was paid for the entire works, original and extra, the sum of £177. 12s. 8d. On the 13th of July 1859, the works being then in progress, a notice was served upon Moore, by Edward Doran, who resided next door, at No. 146, that said alterations were likely to be injurious to his house, and that Moore would be held liable for damage caused by said alterations. Moore showed said notice to the bankrupt, who assured him that the works in progress could not in any way injure Doran's house, and, as a guarantee, indorsed on the estimate of the works a memorandum, dated the 23rd of July 1859, any house from the repairs, and that he would hold A responsible. B, upon this being mentioned to him, wrote on the estimate of the works the following memorandum :"In carrying out the foregoing work, I hereby under take to hold myself responsible for any injury done to the adjoining houses." Some works in addition to these in the estimate were done, the contract was completed, and B paid in full for all. C brought an action against A, averring negligence, and alleging various injuries to his house from the works. B, upon being called upon to settle or defend the action, made no reply, and soon after became bankrupt and absconded. A, having had to pay £191. 7s. 11d. damages and costs, and £60, his own expenses in the action, sought to prove for £251.78. 11d.-Held, that (supposing the memorandum to constitute a contract upon a valuable consideration) the damages which C might recover against A were not necessarily identical with those contemplated by the guarantee, and that A could not prove for the above sum, either as for a debt payable upon a contingency, within s. 257, or as for a liability to pay money upon a contingency, within s. 258. |