THE QUEENSLAND LAW REPORTER. MAY, 1910. moneys, were necessarily acting as Geisel's agents, and having paid these moneys to the defendant in breach of their duty to their principal Geisel, so as to prevent them from charging Geisel with these moneys, are entitled to recover them from the defendant as moneys which, in the events which have happened, really belong to the plaintiffs, and have been received by the defendant under circumstances which do not entitle him to retain them. See Stevenson v. Mortimer (1) and Holt v. Ely (2). On the whole, then, although not without some hesitation, I have come to the conclusion that the judgment of the learned District Court Judge cannot be supported on any reasonable view of the evidence adduced at the trial, and that his judgment should therefore be set aside, and judgment entered for the plaintiffs for the amount claimed, namely, £57. Appeal allowed: respondent to pay costs of trial; no Solicitor for appellant: A. H. Pace, for W. J. Vowles, Dalby. (1) 1778, Cowp. 805. (2) 1853, 1 El. and B. 795. F. C. WATT AND CLARKE V. DE STOKAR. Shand J. Full Court. 1909. December, 14, 20. Cooper C.J. [IN THE FULL COURT]. QUEENSLAND TRUSTEES LIMITED AND ANOTHER v. Will-Verbal agreement between wife and husband to purchase In 1905, the testatrix and her husband verbally agreed that if the husband would buy two pieces of land adjoining the house they lived in, and complete the purchase of that house, and would place the property, as a whole, in their joint names, as joint tenants, she would at a later date pay half the total cost of the two properties. The husband purchased the land, and his wife and himself were registered as joint tenants thereof. Part of the purchase money-viz., £640 was raised by mortgage of the lands executed by both the husband and wife. In 1907, he also purchased the house in which they lived, and transferred the same to the testatrix and himself as joint tenants. In order to raise the purchase money, £700, and to make certain improvements, this land was mortgaged by the husband and wife to secure £900 and interest thereon. Held, that this agreement did not fall within s. 5 of The Statute of Frauds and Limitations of 1867. Held, also, that the husband and testatrix did not hold the land as tenants in common, and that whether they were tenants by entireties or joint tenants, they were seised "per tout," and not "per my et per tout," and that therefore the incident of survivorship attached to their joint title. Held, also, that the estate of the testatrix was indebted to her husband in respect of one half of the sums paid as purchase moneys, including that secured by mortgage, and one-half of all sums paid by the husband as interest on the mortgages. THIS was a special case stated under O. XXXVIII., r. 1. It is not necessary to set out at length the facts contained in the special case. All that are material to the only points. of law which were seriously disputed appear in the judgments. Hart, for the trustees: The husband and wife were joint tenants. Real Property Act of 1861, s. 40; Married Women's Property Act of 1890, s. 10. The Statute of Frauds is no answer to the husband's claim, for in the first place, there has been part performance, and in the second it would be inequitable to allow it to be set up as a defence. Boston v. Boston (1), Angell v. Duke (2), Cocking v. Ward (3), Hodgson v. Johnson (4), Halsbury on Laws of England, Vol. VII., p. 281; Pulbrook v. Lawes (5), Knowlman v. Bluett (6), Ungley v. Ungley (7), Seaman v. Price (8), In re Duke of Marlborough, Davis v. Whitehead (9), Rochefoucauld v. Boustead (10), In re Rownson, Field v. White (11), Leake on Contracts, 5th Ed., p. 201; Midgley v. Midgley (12), Thornley v. Thornley (13); Paget v. Paget (14) does not apply. Brickwood v. Young (15), Leigh v. Dickeson (16), In re Byrne (17), Dummer v. Pitcher (18). The bequests of the will were not a satisfaction of the debt. Talbot v. Shrewsbury (19), Chancey's Case (20), Theobald on Wills, 7th Ed., p. 765, Re Keogh's Estate (21). Lilley, for the defendant Concanon: In effect, the husband and wife together agreed to buy the land. She said, "If you pay for the land for both of us, I will repay half the purchase money." To that agreement the Statute of Frauds applies. Horsey v. Graham (22), Earl of Falmouth v. Thomas (23), Boston v. Boston (24). There was no part performance. Fry on Specific Performance, 4th Ed., s. 582; Caddick v. Skidmore (25). The debt was not satisfied by the bequests. Forsight v. Grant (26), Cole v. Willard (27), Story on Equity Jurisprudence, 13th Ed., s. 505. Real, for the defendant Kennard, adopted the argument of counsel for the trustees. In Boston v. Boston (28), there was no compulsion to purchase any land. He referred to Thornley v. Thornley (29), Story on Equity Jurisprudence, Kenrick v. Mountsteven (30). And on costs, to Queensland Trustees v. Lowcock (31). (1) [1904] 1 K.B. 124. (2) 1875, L.R. 10 Q.B. 174. (3) 1845, 1 C.B. 858. (4) 1858, El. B. & El. 685. 5) 1876, 1 Q.B.D. 284. (6) 1874, L.R. 9 Ex. 307. (7) 1877, 5 Ch. D. 887. (8) 1825. 2 Bing. 437. (9) [1894] 2 Ch. 133. (10) [1897] 1 Ch. 196. (11) 1885, 29 Ch. D. 358. (12) [1893] 3 Ch. 282. (13) [1893] 2 Ch. 229. (14) [1898] 1 Ch. 47. (15) 1905, 2 C. L. R. 387. (16) 1884, 15 Q.B.D. 60. (17) 1906, St. R. N.S.W. 532. (24) [1904] 1 K.B. 124. F. C. QUEENSLAND TRUSTEES LIMITED AND ANOTHER V. CONCANON AND ANOTHER. F. C. QUEENSLAND LIMITED AND ANOTHER. COOPER C.J.: This is a special case stated under O. XXXVIII., r. 1. The plaintiffs are the executors and trustees under the will of Elizabeth Lloyd Kennard, and the defendants are her son, the only issue by a former marriage, and her surviving husband. The testatrix bequeathed to her husband for his life certain interests in her estate. There is no issue of the second marriage. The testatrix died in December, 1908, and probate of her will was granted to the plaintiffs in June last. Defendant Kennard and his wife lived in Toowoomba in a house called "The Rosery," which he had agreed to buy on certain terms for a sum of £1500, £800 of which he had paid in cash before the 1st June, 1902. About September, 1905, testatrix and Kennard verbally agreed that if Kennard would buy two pieces of land adjoining “ The Rosery," and complete the purchase of the latter, and would place the property, as a whole, in their joint names, as joint tenants, she would, at a later date, pay half the total cost of the two properties. In October Kennard, in pursuance of this agreement, purchased the two pieces of land for £1000, and took a transfer to himself and wife as joint tenants, and this was duly registered. £640 of this sum was raised by mortgage of the two pieces of land to the Union Trustee Company of Australia, in pursuance of an agreement between Kennard and his wife, and interest was payable upon the borrowed sum. Kennard paid the interest until March, 1908, on which date he repaid the £640. In January, 1907, Kennard completed the purchase of "The Rosery," and paid the balance of the purchase money, £700, and caused the land to be transferred to himself and testatrix as joint tenants. In order to raise this sum and a further £200 for repairs and improvements, Kennard and the testatrix agreed, in pursuance of their former agreement, that a mortgage for £900 should be executed by Kennard and testatrix over "The Rosery" contemporaneously with the execution of the transfer into their joint names. mortgage was executed by the testatrix and Kennard in favour of the plaintiffs, Queensland Trustees Limited, to secure the repayment of £900 and interest. £700 was spent in completing the purchase and £200 in improvements. This About 1908, a small portion of the land was sold for £425, and the money used by Kennard and testatrix in their joint interest, but the defendant Kennard wishes to have the whole of this sum debited to himself. Kennard sold "The Rosery," after the death of the testatrix, and paid off the mortgage of £900 to the Queensland Trustees Limited, with interest, under protest and subject to the determination of the questions now before us. I think it clear that if the tie of marriage had not existed between Kennard and the testatrix at the time of the transaction in question, they would be joint tenants of the lands mentioned in the case, and I know of no provision in our law, either in the Married Women's Property Act or the Real Property Act, which makes them, as man and wife, tenants in common. Whether they are tenants by entireties or joint tenants is not very material, 66 they are in my opinion seised " per tout," and not per my et per tout," and therefore the incident of survivorship attached to their joint title. We are asked whether The Statute of Frauds and Limitations of 1867 affords a defence to the contracts or agreements for the purchase of these lands. I am clearly of opinion that it does not; the agreement between Kennard and testatrix was not an agreement to buy land or an interest in land, but an agreement by her that, in the event of his buying land and procuring a transfer into their joint names, she would pay half, and I think that such an agreement is not required by law to be in writing. In any event, the agreement was executed and carried out in good faith by both parties to it, and I think that a Court of Equity ought not to interfere by allowing the representatives of one of the parties to set up the contention that the contract cannot be enforced, because it is not in writing. If the Statute of Frauds afforded a valid defence, I think it would be the duty of the plaintiffs, under the circumstances of this case, to plead it. I think the questions should be answered as follows: 1. Whether Stanley Bruce Kennard is entitled to payment by the plaintiffs of one-half the total purchase money of all the lands and premises mentioned in paragraph 7 hereof, less the sum of four hundred and twenty-five pounds?—Yes. F. C. QUEENSLAND TRUSTEES LIMITED AND ANOTHER U. CONCANON AND ANOTHER. Cooper C.J. |