CROCKFORD INS. Co. 66 1863. acknowledgement or proof of deeds executed out of the Province, are merely permissive, for the convenience of against parties so executing deeds, and do not interfere with their EQUITABLE right to adopt the ordinary mode of acknowledgment or proof, if they see fit so to do. In order however, to avoid the previous unregistered transfer to the plaintiff, it must appear that this subsequent assignment to Bowers was for a valuable consideration. The statement in the assignment that it was in consideration of £75, will not alone be sufficient for this purpose; nor was there proof of any money having been paid by Bowers to White for the assignment. There is however, the following declaration of the plaintiff, himself that after "White got into a State "prison in the United States, to induce one John Bowers "a chum of his, and notorious blackleg, to bail him out, "he gave him an assignment of this lease." This would be a valuable consideration. It is not necessary that such consideration should be a money consideration. The giving up a right, without fraud, is a valuable consideration. See, Hill v. Bishop of Exeter (a). And here, the entering into an undertaking by which the party might not improbably be obliged to pay money, would amount to a valuable consideration. A money risk will be a valuable consideration of the same character as a money payment. But then it was urged, that as this was only given as an indemnity for becoming bail, it must be considered merely as a mortgage, which would leave an insurable interest in the plaintiff. Without pronouncing any opinion as to what would have been the effect of this assignment for valuable consideration. on the unregistered writing of the plaintiff, had the assignment clearly been in the nature of a mortgage, it is sufficient to say that the assignment is clearly absolute on its face; that there was nothing to prevent an absolute transfer being given for the object the parties had in view; that there is no evidence of any agreement between White and Bowers that it should only operate as a mortgage; and that the express terms of a deed cannot in any case be altered or varied by mere reference (a) 2 Taunt. 83. or 1863. CROCKFORD INS. Co. or surmise. By this assignment to Bowers, we think the title under the original lease vested in him, without any entry on the land. This is so under the authority of the against case of Williams v. Bosanquet (a) which is recognized in EQUITABLE Ryan v. Clark (b). This doctrine is undoubtedly at variance with the case of Doe dem. Hatheway v. Munro (c), decided in this Court in 1848. Bosanquet was not then brought Court, and Ryan v. Clark had not then been decided. The Court seemed to act on a dictum of Blackstone, which does not appear to state the doctrine as laid down in Co. Litt. quite correctly. Doe dem. Hatheway v. Munro may now be considered as overruled. The case of Williams v. If it were necessary to shew the assent of the assignee to the assignment, (which according to Roscoe, p. 464, would not be necessary, as such assent would be presumed), the statement of the plaintiff himself, above referred to, of the circumstances under which the assignment was given by White to Bowers, and the subsequent completion of Bowers' title by the registry of the assignment, would be quite sufficient evidence of the assent of Bowers to the assignment. We think, therefore, the view taken by the learned Judge at the trial on all these points was correct, and the rule having been granted solely on the ground of misdirection, will be discharged. Rule discharged. (a) 1 B. & B. 238. (b) 14 Q. B. 73. (c) 1 Allen, 92. HILLOCK against FRIZZLE & SALTER. THE (Equity Appeal.) HE bill in this case was filed for the purpose of Adeed though obtaining a decree, declaring that a conveyance of form, decreed absolute in only to be a mortgage, on evidence that such was the intention; and a subsequent deed from the grantor to a third person, with notice of the prior deed, though registered first decreed to stand subordinate thereto, and the grantee in the second deed allowed to redeem. Costs on an appeal refused to a plaintiff, though he was substantially successful: his case not having been fairly stated in his bill, and his conduct appearing not to have been bona fide. land 1863 HILLOCK against FRIZZLE. land made by the defendant Frizzle to Salter should be declared fraudulent, and the registry thereof cancelled; and that the deed to the plaintiff should be established. The case was heard viva voce before Wilmot J., at the Gloucester circuit, in September, 1862. It appeared that Frizzle and one Doncaster had unsettled accounts between them, which they referred to arbitration, and it was arranged that Frizzle should pay Doncaster £125, and that Doncaster should convey to him a lot of land: £60 to be paid down, and the balance of £65 by instalments in three years. Frizzle not having the money to pay, the plaintiff agreed to advance it to him, on receiving a conveyance of half the lot of land; and accordingly on. the 7th August, 1861, Frizzle executed and delivered to the plaintiff an absolute conveyance of half the lot of land, and received from him a Savings Bank Deposit Book, and a note from one Taylor, in favor of the plaintiff, amounting together to £60. The next day, a dispute arose between the plaintiff and Frizzle about the deed,— Frizzle claiming that it was to be a conditional deed to secure the re-payment of the £60, and the plaintiff denying that it was so intended. Frizzle then conveyed the land to Salter, who knew of the previous deed to the plaintiff. Salter's deed was registered before the plaintiff's: WILMOT J., delivered the following judgment. The plaintiff on the 7th August, 1861, received from the defendant Frizzle, a deed of bargain and sale of fifty acres of land in New Bandon, in the County of Gloucester, for the consideration of £60; on the following day (8th August, 1861,) Frizzle conveyed the same land to the defendant Salter, for the consideration of £65, and this deed was duly registered before the deed to the plaintiff. The plaintiff has filed his bill for relief, setting forth his own deed as an absolute conveyance, and alleging that the deed to Salter was given with a full knowledge of his previous deed, and praying the Court to order the same to be cancelled, as fraudulent. The defendants, in their answer, state that the deed to the plaintiff was agreed to be conditional, and by way of mortgage; and that the plaintiff, on 1863 HILLOCK against on the morning after receiving such conveyance, repudiated the agreement; and it is therefore contended on behalf of the defendants. that Frizzle could lawfully convey the fee to another, or could convey his equity of redemption; and that in FRIZZLE, eithercase, such conveyance could not be decreed fraudulent. A great number of witnesses have been examined on both sides, and the first question for me to determine is, whether Frizzle's deed to the plaintiff was by way of morgtage for securing the payment of the £60; and after an attentive examination of all the evidence, I am led to the conclusion that such was the true character of the transaction. Cole, Kerr, Seaman, and D'Arcy, were all disinterested and intelligent witnesses, and clearly proved (though expressly contradicted by the plaintiff and Doncaster on this point), that before Frizzle executed the deed to the plaintiff, it was distinctly agreed to be only as security, and that Frizzle would be at liberty to redeem the property at any time. This being the nature of the agreement, what was the subsequent conduct of the plaintiff? On the morning after he received his deed, upon being asked whether he had not promised that Frizzle could redeem the land, he admitted that he had, but said that he could break his promise. A proposition was then made to the plaintiff, that if he would give Frizzle £5, in addition to the £60, which was to be paid, he could hold the deed as an absolute conveyance: which he declined. Now, believing the evidence on the part of the defendants to be true, as to the plaintiff's promise and his immediate repudiation of it, it appears to me that he is chargeable with gross fraud and duplicity, in obtaining the deed from Frizzle as a mortgage, and then claiming it as an absolute conveyance; in professing great friendship for "the poor old man" in his trouble, until he got the deed, and then turning against him. The consideration money had not been paid to Frizzle by the plaintiff. Arrangements had been made to pay £40, from the Savings Bank, and £20 on a note of one Taylor, in favour of plaintiff, the amount of which was to be paid to Frizzle through Sprague Soule & Co.; but upon the plaintiff's repudiation of the agreement, and the subsequent sale 1863. HILLOCK against sale to Salter, the Savings Bank deposit book and the Taylor note, were offered to be returned to the plaintiff on several occasions by Cole, in whos custody they were FRIZZLE. left; but although the plaintiff refused to receive them, they are still under his sole control. As the plaintiff now seeks the intervention of this Court to declare the deed to Salter fraudulent, upon grounds which are entirely cut away by the defendants evidence, he cannot succeed: he has not come into Court with clean hands; he has not done equity; and equity now can do nothing for him. The bill will therefore be dismissed with costs. The plaintiff appealed from this judgment; and the appeal was argued in Trinity term last. - J. A. Street Q. C., for the appellant, contended that the evidence did not establish that the conveyance to the plaintiff was intended only to operate as a mortgage,there being no writing to shew such intention. But even if such an agreement could be made out, that would not justify Frizzle in defrauding the plaintiff. By the defendants' own statement, the plaintiff was entitled to hold the deed as a security for the payment of the money; and therefore the utmost the defendants' could ask, was to have the property reconveyed on payment of the £60, and interest. Johnson Q. C., contra, contended that the preponderance of the evidence was in favour of the defendants' claim, that the deed was not intended to be an absolute conveyance; and that it was not necessary that there should be any writing to establish this: it might be made out by parol evidence. 1 Pow. Mort. 120; 150. The plaintiff having filed his bill for the purpose of establishing his own deed as an absolute conveyance, could not ask to have it stand as a mortgage, if he failed to establish it as an absolute deed. If he failed to make out what he claimed, it was evident that he was attempting to defraud the defendants, and the bill should be dismissed. Cur. adv. vult. N.PARKER,M.R.,now delivered the judgment of the Court. None of the parties seem to be free from blame in this matter. |