This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(c) Anon., cited 6 Ves. 632.
(d) Wright v. Vanderplank, (1856) 8 D. M. & G. 133; Harston v. Tenison, (1882) 20 Ch. D. 109, per Fry, J., 117; 51 L. J. Ch. 645.
(e) Whichcote v. Lawrence, (1798) 3 Ves. 740; York Buildings Co. v. Mackenzie, (1795) 8 Br. P. C. 42; Lewin, 13th ed. 1119.
(f) Lewin, 1119; Campbell v. Walker, (1800) 5 Ves. 678, 682; Chalmer v. Bradley, (1819) 1 J. & W. 51; Charter v. Trevelyan, (1844) 11 Cl. & F. 714; Re Eyre-williams, 1923, 2 Ch. 533.
(g) Gowland v. Be Faria, (1810) 17 Ves. 20; Duke of Leeds v. Lord Amherst, (1846) 2 Ph. 117; 16 L. J. Ch. 5; Browne v. Cross, (1851) 14 Beav. 105; Hope v. Liddell, (1855) 21 Beav. 183; 25 L. J. Ch. 90; Life Association of Scotland v. Siddal, (1861) 3 D. F. & J. 58; Nutt v. Boston, 1899, 1 Ch. 873; 1900, 1 Ch. 29; 69 L. J. Ch. 46.
(h) Roberts v. Tunstall, (1844) 4 Ha. 257; 14 L. J. Ch. 184.
It does not appear that poverty is in itself an excuse for laches (l): though it would, probably, have an effect upon the Court if united with other circumstances (m).
A beneficiary may confirm a voidable purchase by his trustee, etc.; but, to make his confirmation binding, he must be of full age (n), fully aware of the material facts (o), of his right to impeach the transaction (p), and of the legal consequences of his confirming it (q); he must be under no undue influence, the confirmation must be a solemn and deliberate act (r), free from any pressure resulting from the original transaction (s), and, in the case of a plurality of beneficiaries it must, to be effectual, be the act of all (t), as a majority cannot bind the minority; not even in the case of a public company, in respect to matters not so provided for by the deed of settlement (u). Conduct or language on the part of a beneficiary who is of full age, which, had it occurred upon, or previously to, the commission of the 'breach of trust, might have amounted to acquiescence and have precluded him from all right of complaint, may, if it occur subsequently to the breach of trust, be wholly insufficient to confirm the transaction, or to release the trustee from liability (x).
Confirmation of voidable purchase.
(i) Life Association of Scotland v. Siddal, (1861) 3 D. F. & J. 58; and see remarks of Turner, L. J., on judgment in Browne v. Cross, (1851) 14 Beav. 105.
(k) Per Lord Campbell in Life Association of Scotland v. Siddal, sup.; Fox v. Mackreth, 2 Wh. & T. L. C. 9th ed. p. 716.
(l) Life Association of Scotland v. Siddal; Roberts v. Tunstall, sup.
(m) Gregory v. G., (1815) G. Coop. 201; and see Oliver v. Court. (1820) 8 Pri. 168.
(n) Campbell v. Walker, (1800) 5 Ves. 678, 682.
(o) Chalmer v. Bradley, (1819) 1 J. & W. 51; Wedderburn v. W'.; (1838) 4 My. & C. 41; Skottowe v. Williams, (1861) 3 D. F. & J. 535; Williams v. Scott, 1900, A. C. at p. 505; 69 L. J. P. C. 77.
(p) Cann v. C, (1721) 1 P. Wms. 727; Roche v. O'brien, (1810) 1 Ball & B. 330, 340; Marker v. M., (1851) 9 Ha. at p. 16; 20 L. J. Ch. 246.
(q) Cockerell v. Cholmeley, (1830) 1 Russ. & M. 418; Murray v. Palmer, (1805) 2 Sch. & L. 475.
(r) Carpenter v. Heriot, (1759) 1 Ed. 338; Be Montmorency v. Levereux, (1840) 7 Cl. & F. 188; Salmon v. Cutts, (1850) 4 De G. & S. 125; aff., (1852) 16 Jur. 623; 21 L. J. Ch. 750; Great Luxemburg R. Co. v. Magnay, (1858) 25 Beav. 586.
(s) Crowe v. Ballard, (1790) 3 Br. C. C. 117; Wood v. Downes, (1811) 18 Ves. 121; Wiseman v. Beake, (1690) 2 Vern. 121; Scott v. Davit, (1838) 4 My. & C. 87. See Fox v. Mackreth. 2 Wh. & T. L. C. 9th ed. p. 718.
Acquiescence and confirmation distinguished.
A married woman may, as regards her separate property, not subject to any restraint against anticipation, bind herself by acquiescence, just as if she were unmarried (y). In one case (z), Turner, L. J., intimated an opinion that the restraint upon alienation might be no protection against the rules of the Court relating to acquiescence and delay. But this viewis inconsistent with the later authorities and cannot be considered law (a). "A married woman," said Lindley, M. R., "cannot by hook or by crook - by any device, even by her own fraud (the cases go that length) - deprive herself of the protection which the restraint on anticipation throws around her"(b). The protection afforded by the restraint has been held to exempt the separate estate still in the hands of the trustees from liability to replace other separate estate comprised in the same settlement, and which the married woman had fraudulently disposed of (c). It is important to bear in mind, however, that by s. 62 of the T. Act, 1925 (which takes the place of s. 45 of the T. Act, 1893), it is provided that where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the Court, may, if it thinks fit, and notwithstanding that the beneficiary may be a married woman restrained from anticipation, make such order as to the Court seems just, for impounding the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through him.
A married woman may bind herself by acquiescence as regards separate estate free from restraint.
(t) Ex p. Lacey, (1802) 6 Ves. 626; Tommey v. White, (1850) 3 H. L. C. 49; and see 2 Wh. & T. L. C. 9th ed. p. 719.
(u) Clay v. Rufford, (1852) 5 De G. & S. 768.
(x) Munch v. Cockerell, (1539) 5 My. & C. 178, 218; 9 L. J. N. S. Ch. 153; and see Duke of Leeds v. Earl of Amherst, (1846) 2 Ph. 123; 16 L. J. Ch. 5; and Phillipson v. Gatty, (1848) 7 Ha. 516; Life Association of Scotland v. Siddal, (1861) 3 D. F. & J. 58; Be Bussche v. Alt, (1878) 8 Ch. D. at p. 312 et seq.; 47 L. J. Ch. 381.
(y) Jones v. Biggins, (1866) 2 Eq. 538; 35 L. J. Ch. 403; Davies r. Hodgson, (1858) 25 Beav. 187; 27 L. J. Ch. 449.
(z) Berbishire v. Borne, (1853) 3 D. M. & G. 60, 113.
(a) See Stanley v. S., 7 Ch. D. 589; Lady Bateman v. Faber, 1898,
1 Ch. 144; Sprange v. Lee, 1908, 1 Ch. 424; Be Eyre-williams, 1923,
2 Ch. 533.
(b) 1898, 1 Ch. p. 149.
(c) Clive v. Carew, (1859) 1 John. & H. 205; 28 L. J. Ch. 685; Stanley y. S., (1878) 7 Ch. D. 589; 47 L. J. Ch. 256.
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