Wossidlo v Catt [1934] HCA 52

transferred the land to C. in consideration of his " having by deed of covenant

bearing even date herewith covenanted with me to pay to me during my life-

timean annuity of . . ." C,made the cash payments which were expressed

to be the consideration for the sale of the personal property, and, so long as

he lived, the annuity was duly paid. C, re-sold one of the pieces of land, but

at his death, which occurred later, he was still the registered proprietor of the

remaining piece of land. After his death payment of the annuity fell into

Held that W. must be taken to have intended to rely on a personal covenant. for payment of the annuity, and that she had no lien on the unsold piece of land for the unpaid portion of the annuity.

Mackreth v. Symmons, (1808) 15 Ves. Jun. 329; 33 E.R. 778, applied.

a: Decision of the Supreme Court of South Australia (Full Court): In re Wossidlo, (1934) S.A.8.R. 268, affirmed, VOL. Lu. 20

On 13th January 1926 a deed of covenant in the following terms was entered into : -

" This indenture made the thirteenth day of January One thousand nine hundred and twenty-six between Alfred Clifford Catt of Adelaide _ in the State of South Australia Auctioneer of the one part and Antonie Henriette Matilda Wossidlo (in the Certificate of Title hereinafter referred to called "Tony Wossidlo ") of Mitcham in the -

said State Married Woman of the other part whereas the said Antonie Henriette Matilda Wossidlo being seized and possessed of the lands | comprised in Certificates of Title Register Book Volume 95 Folio 57 and Volume 1273 Folio 192 a Commonwealth Bond representing - the sum of £200 payable on the fifteenth day of September One thousand nine hundred and twenty-eight and certain household and other effects has requested the said Alfred Clifford Catt to purchase from her the said War Bond household and other effects and the said lands and as consideration for the sale thereof by her to him to pay to her the respective sums and annuity hereinafter coven-_ anted by him to be paid to her and to execute these Presents for securing payment thereof which the said Alfred Clifford Catt has agreed to do now this indenture witnesseth that in pursuance of his said agreement the said Alfred Catt doth hereby for himself his heirs executors and administrators covenant with the said Antonie Henriette Matilda Wossidlo that he the said Alfred Clifford Catt heirs executors or administrators will on the delivery to him of said War Bond household and other effects together with the said Certificates of Title and a duly executed transfer to him of the said lands pay to the said Antonie Henriette Matilda Wossidlo the sum of One Hundred Pounds and if the said Antonie Henriette Matilda

become payable pursuant to this covenant shall be the full pi se money of the said War Bond household and other effects. And as consideration for the sale to him by the said Antonie Henriette Matilda Wossidlo of the said lands the said Alfred Clifford Catt doth hereby covenant with the said Antonie Henriette Matilda Wossild

that he his heirs executors or administrators will during her lifetime H. ©. or A.

pay to her an annuity of one hundred and fourteen pounds by equal calendar monthly payments computing from the Tenth day of March One thousand nine hundred and twenty-six the first of such payments to be made on the Tenth day of April next."

On the same day Mrs. Wossidlo executed a memorandum of transfer in the following terms : - ''I, Tony Wossidlo of West Mitcham Married Woman being registered as the proprietor of an estate in fee simple subject however to such encumbrances liens and interests as are notified by Memorandum underwritten or endorsed thereon in the whole of the land comprised in Cer- tificates of Title Register Book Volume 95 Folio 57 and Volume ' 1273 Folio 192. In consideration of Alfred Clifford Catt of Adelaide _ Auctioneer having by Deed of Covenant bearing even date here- with covenanted with me to pay to me during my lifetime an annuity of One Hundred and Fourteen Pounds do hereby transfer to the said Alfred Clifford Catt all my estate and interest in the said id above described."

_ This transfer was registered on 14th January 1926. The two sums of £100 and £400 were duly paid to Mrs. Wossidlo pursuant to the deed, and the annuity therein provided for was paid to her a during the lifetime of Alfred Clifford Catt. During Alfred Clifford "i Catt's lifetime the land comprised in Certificate of Title Register _ Book Volume 1273 Folio 192 was sold by him. Alfred Clifford Catt died on 3rd October 1930, and after his death the annuity fell into arrears. On 21st October 1930 Mrs. Wossidlo lodged a caveat against the title to the land comprised in Certificate of Title Register Book Volume 95 Folio 57, claiming that she had an equitable lien "on the land for the unpaid portion of the annuity provided for in the deed. The executors of Alfred Clifford Catt, the present, ondents, applied by summons for the removal of the caveat, ut the summons was dismissed by Richards J. An appeal to the Court of South Australia was allowed, Richards J.'s order was aside, and it was ordered that the caveat be removed.

From this decision the appellant now appealed to the High Court.

_ Shierlaw (with him Frisby Smith), for the appellant. A vendor's continues until expressly or impliedly waived, and the onus is

on the vendee to show manifest waiver (Sugden on Vendors and Pur- chasers, 14th ed. (1862), pp. 675, 676; White and Tudor's Leading Cases in Equity, 4th ed. (1872), vol. 1., p. 317 ; Mackreth v. Symmons (1)). It is now too late to contend that there is no lien when the con- _ sideration is an annuity, nor does the fact that the annuity is depen- dent on life amount to waiver. Where a bond or other security is _ given as a mode of payment, that is not evidence of waiver (Winter v. Anson (Lord) (2) ). i

[Ric J. referred to Harl of Jersey v. Briton Ferry Floating Dock Co. (3).]

For there to be waiver the other security must be taken in sub- stitution for the lien. A covenant to pay formerly gave the creditor advantages (e.g., priority in bankruptcy) over simple contract debts. The division of the consideration in the indenture shows that the appellant was retaining her lien on the land but not on the other | property. The indenture and the transfer are separate only because a transfer is the statutory method of conveying Real Property Act land, and to interpret them they must be read together. The fact that the deed contains no reference to vendor's lien leaves unaffected the prima facie inference that a lien exists. Why should the appel- lant be taken to have given up a lien in exchange for what she already had - a personal liability to pay ? On the true construction of the operative part of the deed, the lien is preserved, but, at least, the operative part is ambiguous, so that the recitals must be looked atand rule the construction (Norton on Deeds, 2nd ed. (1928), p. 201; Frail v. Ellis (4) ). If the deed read alone does not mean that the appellant is giving up anything, the addition of the transfer is immaterial. [Counsel also referred to Buckland v. Pocknell (5)5 Pell v. Midland and South Wales Railway Co. (6); Dansk Rekylriff el Syndikat Artieselskab v. Snell (7); Leggott v. Barrett (8); A tralian Gypsum Ltd. and Australian Plaster Co. v. Hume Steel (9); Dixon v. Gayfere (10).]

(1) (1808) 15 Ves. Jun. 329; 33 E.R. (6) (1869) 20 L.T. 288. 718. (7) (1908) 2 Ch. 127, at p. 136.

(2) (1828) 3 Russ. 488 ; 38 E.R. 658. (8) (1880) 15 Ch. D. 306.

(3) (1869) L.R. 7 Eq. 409. (9) (1930) 45 C.L.R. 54.

(4) (1852) 16 Beav. 350; 51 E.R. 814. (10) (1857) 1 DeG. & J. 655; 44 E.R.

Mayo K.C. (with him Astley), for the respondents. It is not H.C. or A.

conceded that a right to payment of money by way of annuity gives rise to a lien. Whenever a lien has been held to exist, there has been something in the nature of a formal settlement in the back- ground (e.g., Tardiff v. Scrughan (1)). It is not a question of whether an equity is waived, but of whether it exists. First we go to the transfer, and at common law the transfer is conclusive (Groongal Pastoral Co. (in Liquidation) v. Falkiner (2)). Unless the transfer is ratified in the proper manner, it is conclusive even though it varies from the antecedent contract. All that equity will do in such proceedings as these is to see whether the terms of the transfer as to consideration have been carried out. The deed of _ covenant need be examined only to see whether it complies with the transfer. Here it clearly does. In any event the appellant's ent fails, because there is no ambiguity in the operative part the covenant (Buckland v. Pocknell (3) ).

Ric J. This is an appeal from an order of the Full Court of South Australia setting aside an order made by Richards J. The facts from which the question for our consideration emerges are set out in the judgment of Murray C.J. as follows : - This is an appeal from an order of Mr. Justice Richards dismissing a summons for the removal of a caveat lodged on the 16th October 1930 by Antonie Henriette Matilda Wossidlo in the Lands Titles Office forbidding any dealing with the estate or interest of Alfred Clifford Catt deceased 'in the lands comprised in Certificate of Title Register Book Volume 95 lio 57. The appellants who were the applicants under the summons the executors of the Will of Alfred Clifford Catt who died on the October 1930. Itappears from the affidavits that the deceased Mrs. Wossidlo executed an indenture on the 13th January 1926 by after reciting that 'the said Antonie Henriette Matilda 'ossidlo being seized and possessed of the lands comprised in Cer- ite of Title Register Book Volume 95 Folio 57 and Volume 1273

(1) pie) unreported. {Cited in 1 (2) (1924) 35 C.L.R. 157. CC, 423; 28 ER. 1216.) (3) (1843) 13 Sim. 406 ; 60 E.R. 157.

Folio 192 a Commonwealth Bond representing the sum of £200 payable on the fifteenth day of September One thousand nine hundred and twenty-eight and certain household and other effects has requested the said Alfred Clifford Catt to purchase from her the said War Bond household and other effects and the said lands and as consideration for the sale thereof by her to him to pay to her the respective sums - and annuity hereinafter covenanted by him to be paid to her and to execute these presents for securing payment thereof which the said Alfred Clifford Catt has agreed to do' it was witnessed that ' in pur. suance of his said agreement the said Alfred Clifford Catt doth hereby - for himself his heirs executors and administrators covenant with the said Antonie Henriette Matilda Wossidlo that he the said Alfred Clifford Catt his heirs executors or administrators will on the delivery" to him of the said War Bond household and other effects together with the said Certificates of Title and a duly executed transfer to him _ of the said lands pay to the said Antonie Henriette Matilda Wossidlo the sum of One hundred pounds And if the said Antonie Henriette. Matilda Wossidlo shall be living on the 10th day of January One thousand nine hundred and twenty-seven will pay to her a further sum of Four hundred pounds which said sums or such of them as shall become payable pursuant to this covenant shall be the full purchase money of the said War Bond household and other effects. _ 'And as consideration for the sale to him by the said Antonie Hen- riette Matilda Wossidlo of the said lands the said Alfred Clifford Catt doth hereby covenant with the said Antonie Henriette Matilda Wossidlo that he his heirs executors or administrators will during her lifetime pay to her an annuity of One hundred and fourteen" pounds by equal calendar monthly payments computing from the Tenth day of March One thousand nine hundred and twenty-six the first of such payments to be made on the Tenth day of April. next.' On the same day as this deed was signed Mrs. Wossidlo executed a Memorandum of Transfer in these terms: 'I Tony Wossidlo of West Mitcham Married Woman being registered as the proprietor of an estate in fee simple subject however to such encumbrances liens and interests as are notified by such memorandum underwritten or endorsed thereon in the whole of the land comprised _

in Certificates of Title Register Book Volume 95 Folio 57 and Volume

1273 Folio 192. In consideration of Alfred Clifford Catt of Adelaide H- ©. oF A.

Auctioneer having by deed of covenant bearing even date herewith covenanted with me to pay to me during my lifetime an annuity of One hundred and Fourteen pounds do hereby transfer to the said Alfred Clifford Catt all my estate and interest in the said land above described.' The transfer was registered on the 14th January 1926. It is not disputed that the two sums of £100 and £400 were duly paid to Mrs. Wossidlo pursuant to the Indenture, or that the annuity _ was paid to her during Catt's lifetime. But since Catt's death on the 3rd October 1930 the annuity has fallen into arrear. On the 16th October 1930 Mrs. Wossidlo lodged the caveat in question against the title to the land comprised in Certificate of Title Register Book Volume 95 Folio 57. She could not include the other piece of in the caveat as it had been sold by Catt before his death. Mrs. Wossidlo claims that she has an equitable lien on the land ich Catt had not disposed of for the unpaid portion of the annuity to her by the indenture." "The doctrine of ' vendor's lien' is one created by equity as part

ascheme of equitable adjustment of mutual rights and obligations lying, unless negatived, to every ordinary contract of sale of land,'"' (per Isaacs J., as he then was, in Davies v. Littlejohn (1) ). _ "<The prima facie right of an unpaid vendor of land to an equitable

• lien upon it for the amount of his unpaid purchase money is too well established to be disputed. The right arises whenever there is a lid contract of sale and the time for completing that contract has ived and the purchase money is not duly paid.' That is a clear ent of the rule. But there are cases where it does not apply " (Barker v. Stickney (2), citing Kettlewell v. Watson (3) ; and cf. Thomp- y. Palmer (4)). The question is whether this is such a case. "The doctrine is probably derived from the civil law as to goods" Mackreth v. Symmons (5) ), " but it can also be based on the prin- that equity regards that as done which ought to be done" , Principles of Equity, 1st ed. (1902), p. 341 ; Shaw v. Foster ). In equity a contract for the sale of land passes the property

) (1919) 1 K.B. 121, at p. 125. 345; 33 E.R., at p. 783. (3) (1884) 26 Ch. D. 501, at p. 507. (6) (1872) L.R. 5 H.L. 321, at pp.

3 (1923) 34 C.L.R. 174, at p. 185. (5) (1808) 15 Ves. Jun., at pp. 344, (4) (1933) 49 C.L.R. 507, at p. 537. 356, 357.

to the purchaser, and the vendor has a lien on it for the price which becomes operative as from the time at which the contract ought to have been completed, and continues until the price is paid, unless a contrary intention appears. That intention is to be gathered from the words of the contract and the inferences from the nature of the transaction in question. In the normal course conveyance and - payment are synchronous, but the price may take any form, and if it consists in the giving of a covenant it is " paid " when the covenant is given, notwithstanding that the covenant may itself involve the making of payment. When the consideration is an agreement to pay a life annuity, it is natural to infer that the vendor annuitant - relied upon the coyenant as the substitution for the property. life annuity involves a series of recurrent payments extending over a quite unknown time. No doubt it has a present value, but the vendor has not stipulated for its present value, but for the annual payments. By parting immediately with the legal estate a vendor - in an ordinary case, where the price is a definite sum, may be regarded as anticipating the completion of the transaction by payment. But in the case of a life annuity a very different intention is to be inferre from his parting with the legal estate (Cf. Dyke v. Rindall (1) ; Dion v. Gayfere (2)). If he did not intend the beneficial ownership of the property to be fully imparted to the purchaser until the final payment of the annuity was made, the transaction into which he entered would take rather the complexion of a post mortem disposition, the disponee being let into immediate possession. The obvious purpose of transferring the legal estate to the person undertaking the liability to pay the annuity is to invest him with complete enjoy- ment of the ownership of the land, legal and beneficial, including | the power of alienation. The vendor, in bargaining for a personal covenant only to pay the annuity, has impliedly shown that it upon this she is content to rely. Had it been otherwise the annt

might have been charged or secured over the land quite effectiv

either at law or in equity. I am therefore of opinion that th decision appealed from is right, and that the appeal should be dis- missed with costs.

(1) (1852) 2 DeG. M. & G. 209, at p. (2) (1855) 21 Beay, 118, at p. 1225 219; 42 E.R. 851, at p. 855. * 52 E.R. 803, at p. 805; (1857) | DeG. & J., at p. 661; 44 E.R, at p. 880. -

Srarke J. A vendor of land has an equitable lien upon the land 4. ©. oF A.

for his unpaid purchase money. Such a lien has been held to extend to a sale made in consideration of an annuity or other periodical payment, unless the parties' intention appears to be that there shall be no such lien (Mackreth v. Symmons (1); White and Tudor's Leading Cases in Equity, 7th ed. (1897), vol. 1, p. 926; Sugden, Vendors and Purchasers, 14th ed. (1862), pp. 676 et seq.).

In the present case, Tony Wossidlo transferred land to Alfred Clifford Catt, in consideration of Catt having, by deed, covenanted to pay Wossidlo during her lifetime an annuity of £114 by equal monthly payments. The learned Judges of the Supreme Court of 'South Australia elaborately reviewed the relevant cases, and con-

duded that no lien existed upon the property in respect of the annuity. In this conclusion I agree. It is improbable, to my mind, ite the observations of Lord St Leonards (Sugden, Vendors and ers. 14th ed. (1862), at pp. 677, 678) that the parties intended to ject the estate to a burden for so indefinite a period as the life of iy Wossidlo (Dizon v. Gayfere (2); Mackreth v. Symmons (3) ). the form the transaction took indicates that Tony Wossidlo was rely upon the covenant for payment of her annuity, and not upon any lien over the property (Buckland v. Pocknell (4) ).

Drxon J. The late Alfred Clifford Catt carried on a business as a land and estate agent and broker. He bought and sold houses Jand in Adelaide and its suburbs. In January 1926, in the se of his business, he entered into a transaction with the ypellant, who appears to have regarded it as insuring a provision for her old age. She agreed to transfer to him a piece of land, a

on the transfer and £400 payable in the following January, if she then lived. The consideration for the land was to be an annual um of £114 payable monthly during her life. Catt died on 30th

f 0 (1808) 15 Ves. Jun. 329; 33 E.R. é (3) (1808) 15 Ves. Jun. 329; 33 i LR. 778,

) (1855) 21 Beav. 118; 52 E.R. 803; (4) (1843) 13 Sim. 406 ; 60 E.R. 157. (1857) 1 DeG. & J. 655; 44 E.R. 878.

October 1930 without having transferred the land. After his death the payments of the annuity fell into arrear. The appellant then claimed that the payment of the annuity was secured by a vendor's lien over the land, to protect which she lodged a caveat. The Supreme Court of South Australia, consisting of Murray C.J., Napier and Angas Parsons JJ., has held that no such lien exists, and has reversed a decision to the contrary of Richards J. In the memorandum of transfer, by which the appellant transferred the land to Catt, the consideration was expressed to be a covenant to pay during the transferor's lifetime an annuity of £114. The deed of covenant referred to recited an agreement by Catt to purchase from the' appellant the lands and to pay the annuity therefor. It proceeded to witness that, in pursuance of the agreement and as considerati for the sale of the lands, Catt covenanted that he would, during h lifetime, pay her the annuity by equal monthly instalments. The lien of an unpaid vendor arises by operation of law, but its existence is commonly ascribed to the fact that he does no intend to transfer the beneficial ownership of his estate except in exchange for the stipulated price. Where an owner of land transfers it in exchange for a contractual promise on the part of the transferee to pay a life annuity, and does not secure the annuity over the or take it in the form of a rent charge, it seems difficult to regard the transaction as one to which the doctrine can apply so as to give rise to a vendor's lien. But in an early case of Tardiff v. Serughan, cited in Blackburn v. Gregson (1), Lord Camden decided that an annuity, which children agreed to pay to their parents who trans- ferred their property to them, was secured upon the estate. Sugden, in his Vendors and Purchasers, the first edition of which was publishe in 1805 whilst he was still a young conveyancer and before he w, called to the Bar, accepted this decision as establishing that, whe an estate was sold for an annuity, a vendor's lien was raised in the vendor's favour to secure its payment. But in Mackreth v. Symmons (2) Lord Eldon expressed the contrary view. His opinion app' to have been that, in bargaining for a life annuity as considera for his land, a vendor could scarcely intend to rely on the secur

(1) (1785) 1 Bro. C.C. 420, at p. 423; 28 E.R. 1215, at p. 1216. 2) (1808) 15 Ves. Jun., at pp. 350, 352; 33 ELR., at pp. 786, 787.

'of the estate in respect of each recurrent payment throughout a H.C. or A.

long period of uncertain duration. When, some months after the judgment, a motion to vary the minutes came before him (1), Lord

• Eldon took occasion to mention the view expressed in Sugden's work, which he described as "a book of considerable merit." After ? "refering to a decision in the Register's Book, he said: "I mention "this to show, that I have not withdrawn from the opinion I have itexeed upon this subject; as to which, conceiving it to be of

"great importance, I should, if convinced, be very ready to retract : but, having endeavoured to collect all the doctrine of the Court upon it, I am sure I am right in that."

_ These rival opinions gave rise to a controversy which seems never have been finally resolved. Its course may be seen from the g references: Winter v. Anson (Lord) (2); Clarke v. Royle Buckland vy. Pocknell (4); Matthew v. Bowler (5); see Barker Stickney (6); Dixon v. Gayfere (7). After Buckland v. Pocknell ), Sugden said that it set everything again afloat - see Sugden's endors and Purchasers, 14th ed. (1862), ch. 19, sec. 16, p. 678. It is clear, however, that the actual decisions, as opposed to the rious forms of reasoning upon which they have been based, pport Lord Eldon's view rather than that of Lord St. Leonards. is view, particularly in transactions of modern times, seems more keeping with the intention of the parties, and, in my opinion, it is more consonant with a correct application of principle. Where covenant, or other contractual obligation for a life annuity is taken y a transferor in exchange for a transfer of a legal estate in land, nd the annuity is not expressly secured over the land, it is difficult understand him as intending to invest the transferee with full ial ownership only when and if the annuity is paid. His ion is evident to take the obligation of the covenant in exchange this land, and to depend upon it for the repayment of his annuity. For these reasons I think the appeal should be dismissed with costs.

or) 1806) 15 Ves. Jun., at p. 355; (4) (1843) 13 Sim., at pp. 411, 412 ; p. 787. 60 E.R., at p. 160.

(i828) 3 Russ. 488, at p. 491; (5) (1847) 6 Hare 110, at p. 111; 67 E.R. 658, at p. 660; (1823). Sim. E.R. 1102, at p. 1103.

434; 57 E.R. 174. (6) (1918) 2 K.B. 356, at p. 363. (3) (1830) 3 Sim. 499, at p. 502; 57 (7) (1857) 1 DeG. & J., at pp. 660, R. 1085, at p. 1086. 661; 44 E.R., at p. 880. (8) (1843) 13 Sim. 406 ; 60 E.R. 157.

McTiernan J. I agree that the appeal should be dismissed. In equity a special agreement is not necessary to give the vendor a lien on the land for the purchase price: the lien is a consequence of the _ contract. But equity does not bring this consequence about through - varying the agreement or making an agreement for the parties, or extending the agreement contrary to its just intent. Hence in Dizon v. Gayfere (1), Six John Romilly M.R. decided that "the contract made between the parties excluded the lien on the estate for the payment of the annuity." In that case the purchaser, in consideration of the conveyance of the property, agreed to pay the vendor £25 and "to grant an annuity of £50 per annum," durin the lives of three persons mentioned, to be secured by bond. T! contract is, the Master of the Rolls continued, "that an annuit shall be granted, and shall be secured by bond, in consideration of which the estate shall be conveyed. The whole of this and the a of the parties appear to me to show that the construction of th contract is to discharge the land from the lien, the existence of which would render it almost unsaleable in the hands of the purchaser

Lord Cranworth L.C. said on appeal (2): - "<The subject is canvassed by Lord St. Leonards in his work on Vendors and Purchasers, and the conclusion at which I have arrived on all the authorities is, that the Master of the Rolls is right in saying that no general rule can be laid down, and that we must be guided by the circumstances of each particular case. I not only concur with the Master of the Rolls in thinking that there is no lien of necessity in the case of a sale for an annuity, but I agree also in the opinion that the circum stances of this case exclude the notion that the parties could have so intended, and I come to that conclusion very much on the same ground as his Honor, namely, that it could not have been intende to make a purchase of an estate, so that it would be inalienable for so long a period as that of three lives. When the purchase mot is a gross sum the charge is easy to deal with, by paying it off, the consideration here being an annuity for three lives, I confess that I should be slow to believe that the purchaser and vendo could possibly have understood that the estate was to be inalienable

(1) (1855) 21 Beav., at p. 121; 52 (2) (1857) 1 DeG. & J., at p. 6615 E.R., at p. 805. 44 E.R., at p. 880.

for so long a period, as it would be if the annuity were charged on it, H.C. or A. since an incumbrance of that description would not be redeemable oat at the option of the landowner. There are some expressions which Wossrto have been adverted to in the agreement itself, which, though lesscon- qr,

clusive, lead to the same inference, but the substantial ground of my yyrieman 3.

decision is, that it is not possible to suppose the purchaser to have intended to take subject to such a burden." This decision was given in 1857 and the authorities which the Lord Chancellor discussed in his judgment were Tardiff v. Serughan (1); Remington v. Deverall (2) ; _ Matthew v. Bowler (3); Buckland v. Pocknell (4); Clarke v. Royle (5); Mackreth v. Symmons (6). The principle laid down by Lord Cranworth was adopted by Sir James Bacon V.C. in In re Albert Life Assurance Co.; Ex parte Western Life Assurance Society (7). Vice-Chancellor also cites Lord St. Leonard's comment Clarke v. Royle in Vendors and Purchasers, 14th ed. (1862), 673. "There is a marked distinction between a conveyance as

or money paid with a separate security for the price whether by 'ovenant, bond or note, and a conveyance expressed to be in considera- of covenants which the purchaser enters into by the deed itself." n Earl of Jersey v. Briton Ferry Floating Dock Co. (8) Sir W. M. lames V.C. approves of the views expressed by Leach V.C. in Winter v. Anson (Lord) (9) and says they are not affected by the decision Lord Chancellor Lyndhurst, who came to a different conclusion on appeal. James V.C. makes it clear that equity will not assume a yendor's lien, if to do so would be contrary to the manifest ition of the parties. Referring to Winter v. Anson (Lord) (9), Vice-Chancellor said : - '' Now let us consider what the effect of these doctrines is, as applied to this case. A man conveys a piece land for the construction of a public work, in consideration of

an annual payment. It appears to me to be quite contrary to the intention of the parties to suppose the vendor was reserving to if a right at some future time to enter and destroy the public

(1) (1769) unreported. {Cited in 1 (4) (1843) 13 Sim. 406 ; 60 E.R. 157.

. C.C., at p. 423; 28 E.R., at p. (5) (1830) 3 Sim. 499 ; 57 E.R. 1085. 16.) (6) (1808) 15 Ves. Jun., at p. 352; (2) (1795) 2 Anst. 550; 145 E.R. 963. 33 ELR., at p. 787.

_ (3) (1847) 6 Hare 110; 67 E.R. (7) (1870) L.R. 11 Eq. 164, at p. 179. 102, (8) (1869) L.R. 7 Eq. 409. (9) (1828) 3 Russ. 488 ; 38 H.R. 658,

work if the annual rent should fall into arrear. Hence, in my opinion, there is no lien in such a case for unpaid purchase-money " (1), _ In In re Brentwood Brick and Coal Co. (2) James LJ. said that the ' nature of the contract in that case "excludes vendor's lien." In - Barker v. Stickney (3), Bankes L.J. relied upon the passage quoted by James V.C. in Earl of Jersey v. Briton Ferry Floating Dock Co, (4) from the judgment of Leach V.C.in Winter v. Anson (Lord) (5), as illustrating a case where a vendor has not a lien. Serutton LJ. asserted that the question whether a contract operated to create lien was to be determined by the following considerations : - T understand the doctrine of a vendor's lien it is this: If the instru- ment of transfer shows an intention that the property shall not transferred absolutely, but subject to a charge in favour of transferor to secure some benefit to himself, he has a vendor's lie

• that is, not a possessory lien, with which the common law familiar, but a right in equity, the enforcement of which seems be a matter of difficulty and doubt. If that is the principle to be applied I protest against building up a conventional code of constru tion by which the intention of the parties is to be determined b the use of particular words. I repel the suggestion that the Court is guided towards the intention of the parties to one deed by the light of what was found to be the intention of the parties to another deed after consideration of the intention of the parties to a third dee The difficulties in the construction of wills have, in my view, greatly increased by the way in which cases upon wills used to be argued, and by the elaborate text-books classifying recorde decisions. The problem being to discover what the parties to one instrument intended, the Court ought not to be bound by the con- struction put upon a particular phrase in another document. AS I read the rules proposed by McCardie J. they are attempts fetter the Court by conventional rules of construction. Any such attempt is extremely undesirable, and for that reason I think he proposed rules should not be followed " (6).

The transaction evidenced by the documents in the present

excludes a vendor's lien. The appellant conveyed to the responde (1) (1869) L.R. 7 Eq., at p. 413. (4) (1869) L.R. 7 Eq. 409.

(2) (1876) 4 Ch. D. 562. (5) (1828) 3 Russ. 488 ; 38 E.R. (3) (1919) 1 K.B,, at p. 125. (6) (1919) 1 K.B., at pp. 132, 133.

all her estate and interest in the land in consideration of the respondent H- ©. oF A. having by deed of covenant of even date covenanted with her to es pay to her during her lifetime an annuity of £114. By the deed Wosstpro the respondent covenanted to pay her a sum of £100 upon delivery - ¢, fee to him of certain personalty, and also the certificates of title of the land and an executed transfer of the land, and as consideration for the sale of the land the respondent, his heirs, executors and adminis- -trators covenanted to pay to her during her lifetime an annuity of £114 by equal calendar monthly payments.

The reasons given by Lord Eldon in Mackreth v. Symmons (1)

the annuities, as such, are applicable to the present case. Further- e the handing over of the muniments of title for the consideration tioned, and the acceptance of the annuity granted by the mdent in exchange for the land preclude any assumption that n absolute transfer, without any reservation of any right or interest the land, was not intended. The transaction does not admit of view that credit for unpaid purchase money was given "' upon the fidence of the existence of such a lien" (Nairn v. Prowse (2) ).

Solicitors for the appellant, Shierlaw, Frisby Smith & Romilly a larry.

• Solicitors for the respondents, Finlayson, Mayo, Astley & Hayward.

|, (1) (1808) 15 Ves. Jun., at p. 351; (2) (1802) 6 Ves. Jun. 752, at p. 759; 33 ELR., at p. 786. 31 E.R. 1291, at p. 1295.