ants are compelled to rest their case upon the.contention that the contract, though not in a court of common law effecting that which the law regards as against public policy—namely, the tying up of land for a period beyond that allowed by the rule-indirectly tends to bring about the same result. It is there that I join issue with the defendants. It seems to me that, rightly considered, the contract does not tend to bring about that result. It is quite true that the covenantor may if he pleases carry it out, and it may be to his advantage to do so, but he is not compelled to carry it out. It seems to me that that argument depends on this fallacy. It is not in my opinion the contract which is void because it infringes the rule against perpetuities, but it is the limitation which, by the operation of the doctrines of the Court of Equity, it is the effect of the contract to create, that is void. The contract remains a valid contract in every respect, but it is the limitation it creates in the contemplation of the Court of Equity, and it is that alone, which is void. It seems to me, therefore, that in principle there would have been in an old court of common law before the Judicature Act no defence to this action; and further, that in this court also, since the Judicature Act, there is no defence, because for this purpose the court is sitting as a court of common law.

Now, is there any authority which compels me to say that that opinion which I have already formed on principle is not the correct opinion? I have been referred to three cases reported in 2 Vernona case of Freeman v. Freeman, 2 Vern. 233, a case of Jervis v. Burton, 2 Vern. 251, and the case of Collins v. Plummer, 2 Vern. 635. The only, one of those three which in any way helps the defendants is Jervis v. Bruton. The case is very shortly reported, and the report is in these terms: "John Morris settles land on his daughter and the heirs of her body, remainder to his own right heirs, and takes a bond from the daughter not to commit waste; the daughter having levied a fine, and afterwards committing waste, the bond was put in suit." The only report of the judgment is this: "Per curiam, An idle bond, and decreed to be delivered up to be cancelled; and like Poole's Case, cited in the case of Tatton v. Mollineux (1610) Sir F. Moore, 809, where a recognizance conditioned that the tenant in tail should not suffer a recovery, is decreed to be delivered up, as creating a perpetuity." It is very difficult to understand that. No reasons are given for the finding that it was an idle bond. There is a note which throws some light on it by the editor of the edition of Vernon's Reports which I have before me. It is edited by John Raithby, and that note states this: "The settlement was on the daughter in fee, and on her marriage with the plaintiff who had survived her were settled in trust to the use of the plaintiff and his wife (the daughter of the said John Morris) for life, to the use of their heirs begotten by the plaintiff, and for default of such issue, to the heirs of the plaintiff; the plaintiff's wife died without having had any issue, and the decree declared that the bond in question had been ill-obtained against the said plaintiff's

wife, and that the plaintiff was seised in fee; and decreed the bond to be delivered, and the defendants to pay costs at law (they having proceeded on the bond) and in this suit." It seems to me that that note throws some light on the report, and that the reason of the finding was not that which at first sight would appear to be the reason if one were to take the report by itself. But in the case of Collins v. Plummer, we have a case on the other side, which may fairly be set against Jervis v. Bruton, even if Jervis v. Bruton is to be regarded on the point which I have before me. In that case the head-note is this: "A. on his marriage settles land to the use of himself for life, then to the wife for life, remainder to the heirs of his body begotten on the wife, remainder to his own right heirs; and covenants in the settlement not to bar the entail, nor suffer a recovery; and having one daughter, to whom on her marriage he had given a good portion; he suffers a recovery, and by will devises the estate to his daughter for life, and to her first &c. sons in tail, with remainders over. On a bill for a specific performance of the covenant, the court would not decree it, but leave the party to recover damages at law, for breach of the covenant." It is plain, therefore, that the court in that case did not hold the covenant to be void at law, because it is difficult to understand why, if the court had so held, it did not exercise the further equitable jurisdiction of granting an injunction to restrain proceedings at law on the covenant, when it refused specific performance. It seems to me that the court in that case regarded the covenant as a valid covenant at law, although it could not be enforced specifically in equity.

Another authority which has been referred to is the case which I have already mentioned of London and South Western Ry. Co. v. Gomm, 20 Ch. D. 562. That was an action in equity only to enforce a somewhat similar contract to the present one. It was an action, not brought against the covenantor or against the legal personal representative of the covenantor, but brought against the person in whom the land affected by it was then vested. It was, therefore, an action which could not have been brought at common law, and was capable only of being founded on the equitable doctrine of specific performance. Kay, J., before whom the matter first came, said this, 20 Ch. D. 576: "A contract to buy or sell land and covenants restricting the use of land though unlimited, are not void for perpetuity. In these latter cases the contracts do not run with the land, and are not binding upon an assign, unless he takes with notice. They are not properly speaking estates or interest in land, and are therefore not within. the rule"; and he held that the contract did not create an interest in the land. On that last finding his decision was reversed by the Court of Appeal; but the Court of Appeal did not for a moment throw any doubt upon this-that the rule against perpetuities is a rule which is applicable to property and not a rule which is applicable to contract,

and that, but for the fact that what was sought to be enforced was an interest in land which had been created by the contract, the rule against perpetuities would not have had any reference to that case. It is quite true that the judges in the Court of Appeal did use expressions to the effect that the contract was void, but such expressions as that must be taken to be used in reference to the facts of the case which was before them; and they had not to consider any such question as that which I have to consider, namely, whether an action for damages at law could have been brought upon the contract. That some such idea was in the mind of the Master of the Rolls I think appears from the passage, where he says this, 20 Ch. D. 580: "If then the rule as to remoteness applies to a covenant of this nature, this covenant clearly is bad as extending beyond the period allowed by the rule. Whether the rule applies or not depends upon this as it appears to me, does or does not the covenant give an interest in the land? If it is a bare or mere personal contract it is of course not obnoxious to the rule but in that case it is impossible to see how the present appellant can be bound. He did not enter into the contract but is only a purchaser from Powell who did. If it is a mere personal contract it cannot be enforced against the assignee. Therefore the company must admit that it somehow binds the land. land it creates an equitable interest in the land. The right to call for a conveyance of the land is an equitable interest or equitable estate. In the ordinary case of a contract for purchase there is no doubt about this, and an option for repurchase is not different in its nature. A person exercising the option has to do two things, he has to give notice of his intention to purchase and to pay the purchase money, but as far as the man who is liable to convey is concerned, his estate or interest is taken away from him without his consent, and the right to take it away being vested in another the covenant giving the option must give that other an interest in the land." Then he goes on to decide that in that view, giving an interest in land, the contract is void or ineffectual; but the Master of the Rolls in that case distinguishes between the personal contract and that which gives an interest in land, and it is in the latter aspect only that he holds the contract to be void. It seems to me, therefore, that, sitting here in this part of the action to administer the common law, I must hold that the covenant is valid covenant, and that the plaintiffs are entitled to recover damages for its breach against, of course, the estate of the original

covenantor.

But if it binds the

It has been agreed on all hands that at the trial evidence should not be given as to the amount of damages, and I must therefore direct an inquiry as to the damages, and in default of admission of assets there must be the usual decree for administration of the real and personal estate of Mrs. Heather.

CHAPTER XXXIV

THE RULE AGAINST PERPETUITIES DISTINGUISHED · FROM THE RULE WHICH MAKES VOID RESTRAINTS ON ALIENATION, AND PROVISIONS REQUIRING A TRUSTEESHIP (OTHERWISE VALID) TO BE EFFECTIVE AT TOO REMOTE A TIME

SADLER v. PRATT.

(Court of Chancery, 1833. 5 Sim. 632.)1

See ante, p. 815, for a report of the case.

In re RIDLEY.

BUCKTON v. HAY.

(Chancery Division, 1879. 11 Ch. Div. 645.)

Francis Ridley, by his will, dated the 8th of January, 1863, directed his trustees to invest a fund in the securities thereby authorized, and to stand possessed of a moiety of such securities upon trust to pay the interest thereof to his niece Alice Ridley for her life, and after her death, in trust for all and every the children or child of the said Alice Ridley as should be living at the time of her death, and the issue then living of such of them as should have died in her lifetime, in equal shares, such issue to take their respective parents' shares; and in case there should be no child of the said Alice Ridley, or no child or issue who should attain a vested interest in the said moiety, then in trust for such person or persons as the said Alice Ridley should, whether covert or sole, by will appoint; and in default of such appointment in trust for her next of kin who should be living at the time of her death and such default or failure of her issue as aforesaid, according to the Statutes of Distribution. And the testator directed that his trustees should invest the sum of £4000 in the securities authorized by his will, and stand possessed thereof in trust to pay the interest thereof to his niece Mary Cooper during her life, and after her death upon the same trusts in favor of the children or issue or parties claiming under any will of the said Mary Cooper in all respects as were thereinbefore declared concerning the securities be

1 See, also, Greet v. Greet, 5 Beav. 123 (1842).

queathed in trust for the children of the said Alice Ridley. And the testator, after making other bequests, proceeded as follows: "Provided, also, and my will further is that the several legacies and bequests whether of income or principal hereby given to or for the benefit of iny legatees, being females, shall be for the respective sole and separate use independent of and free from the debts, control, or engagements of any husband or husbands whomsoever, and that the receipts of such legatees respectively, whether covert or sole, shall be good and sufficient 'ischarges to my trustees, but not so as to enable such legatees respectively to anticipate, charge, sell, and dispose, or otherwise encumber such legacies and bequests, or the annual income thereof, or any part thereof respectively."

The testator died on the 1st of May, 1863.

In 1864 a decree was made for the administration of the testator's estate, the plaintiffs being some of his next of kin, and the defendants the trustees of the will, who transferred into court a sum of £4200 5s. 2d. Consols representing the legacy bequeathed in favor of Mary Cooper, and the income of the fund was paid to her during her life.

Mary Cooper died in 1878, having had eight children, six of whom died in her lifetime without having been married. The remaining two, daughters, survived their mother. They were born in the testator's lifetime and had attained twenty-one and married. Both their husbands were now living.

This was a petition presented by the two married daughters by their next friend, praying that the fund in court might be paid out to them in moieties on their separate receipts.

The husbands were made respondents to the petition.

The question was whether the restraint on anticipation was void as transgressing the law against perpetuities.

Chitty, Q. C., and Oswald, for the petitioners. We submit that the restraint on anticipation is void as infringing the rule against perpetuities though the remainder of the gift is good. The petitioners are, therefore, entitled to the fund absolutely, discharged from the restraint.

[JESSEL, M. R. Why should a restraint on anticipation be void? It is only a mode of enjoyment.]

It has been held that a restraint on anticipation in a gift or appointment which may include unborn children is void, as being too remote: Armitage v. Coates, 35 Beav. 1; In re Cunynghame's Settlement, Law Rep. 11 Eq. 324; In re Michael's Trusts, 46 L. J. (Ch.) 651.

[JESSEL, M. R. The question is, whether a restraint on anticipation is not an exception to the general rule against perpetuities and remoteness, following out the legal principle that property shall not be inalienable.]

No exception has yet been allowed against the rule of perpetuities. [JESSEL, M. R. The rule against perpetuities is that you shall not