1834.

Ex parte SIDEBOTHAM

of

If, as has been urged, the respondent had, under an order of this Court, bought a mere shadow, it would become a very serious question whether it would interfere to compel him to pay for what was valueless: but this is In the matter a sale by assignees, with the concurrence of the mort- BARRINGTON. gagee; it is clear therefore that some estate is sold; the only question is how much? whether there remain the equity of redemption in the assignee under the insolvency?

Mere taking possession is not a waiver of objections to title; but in this case, it is impossible to doubt that the purchaser intended to give the lessee possession under his title as purchaser, and intended to waive all objections to title, for there were no objections of which he had not, from the very first, been fully aware.

It is said the respondent never took possession. What possession can be taken by one who grants a lease, which has not been taken here? The possession of the tenant is the possession of the landlord.

The real cause of the reluctance to complete the purchase, does not arise from any objection to title, but from some other circumstances kept in the back ground.

I am therefore of opinion that the objections to the title have been waived; that specific performance must be decreed, and that the purchase money must be paid into court.

Sir John Cross :

The question of jurisdiction is without difficulty, this being a court of law and equity, having jurisdiction in all matter of bankruptcy. Lord Eldon says (a) “I am convinced that it was the intention of the legislature in giving jurisdiction to the Chancellor in bankruptcy, to

(a) In ex parte Bradley, 1 Rose, 203.

1834.

give him power to use in bankruptcy the authority used in cases in chancery, where no specific authority is given Ex parte SIDEBOTHAM by the statutes. In this Lord Hardwicke supports me." In the matter But if any doubt existed, would it not have been waived BARRINGTON. by arguing, as has been done, on the merits, and taking

of

the chance of a favorable decision thereon? It may be imagined indeed, that if there be no jurisdiction, the whole would be coram non judice. (a) Such is not the case. Lord Eldon said in ex parte Rose, 1 Rose, 18, "I am well aware how careful I ought to be of extending a jurisdiction not admitting of appeal. I may, however, interfere by consent, and if the parties should afterwards refuse to obey my order, I would commit them." I am of opinion that when a party argues on the merits, he submits to the jurisdiction.

As to the merits, I concur with his Honor the Chief Judge, that the objections have been waived. The purchase was made on the 5th of June 1833: made under the advice of a solicitor knowing of the insolvency; made by a son of the bankrupt, and made by a brotherin-law of the person in possession. If the objection were serious, yet he knew of it before he became a purchaser, and he knew that no one had-and no one since has claimed any outstanding title. Why does he now set up the objection? Merely to slander the title he has purchased: and under what circumstances did he purchase? Why under some understanding with the bankrupt: he did not purchase because he wanted the estate himself, but in order to keep it in the family, to keep possession while he could, and then shuffle with objections to title. Several months after the purchase, and after he had pondered on the

(a) Attorney General v. Hotham, 3 Russ. 415; Mitf. Plea. 155, edit. of 1827.

1834.

Ex parte SIDEBOTHAM In the matter

of

objections, he granted a lease for fourteen years, this was intended as a waiver of the objections. It is alleged there is some clause in the lease, that it should only be good if the title were perfected; the lease has not been produced, and may not contain any such clause, but if BARRINGTON. it do, is it not of course that he could grant no lease, unless he had a title? But he assumed a right to lease, he assumed he had a title. The objection is an after thought to enable him to keep possession without paying for his purchase.

Sir George Rose :

This is the first case in which this Court has been called on to decree specific performance of an agreement for purchase of an estate. Under the circumstances of this case the Court has jurisdiction. But the facts that the parties are assignees, that the property is the bankrupt's, that the parties have filed affidavits, or that they have argued the question, do not of themselves confer jurisdiction, if none exist without them: the question always is, Can the Court enforce its order by attachment? In this case it can; the purchase being made under an order of court gives jurisdiction.

This jurisdiction should be exercised by analogy to that of equity. No question arises as to the contract or agreement for purchase: consequently, if the objections to title had not been waived, the first step would have been a reference to an officer of the Court or one of the judges, to inquire whether or not there were a good title. There is no difficulty on account of the absence of proper machinery in this Court, as has been suggested, the registrars and deputy registrars of this court being barristers, and equal to such tasks. Following the analogy to equity, we find the making the lease was a taking possession, which is a waiver of objections to title: such

is the general rule: exceptions exist, but this case is not within any of them. How was the possession intended to be taken? The inference from the lease is conclusive that he intended to waive all objections.

As to the assignee under the insolvency being a necessary party to the conveyance, I think the order of this Court will go a great way towards obviating that.(a)

The order made was, Declare the objections waived, the title accepted, and the contract to be enforced. Purchase money to be paid into Court. Reference to Mr. Gregg to settle the conveyance, if the parties differ, and to settle who are proper parties. The costs to be paid by the respondent.

C. of R. July 25, 1834. Unopened fiat amended by inserting the proper parish.

MR. BURTON moved that a country fiat, which had not been opened, might be amended by altering the parish. The bankrupt was described of a wrong parish; he resided a few yards out of the parish in which he was described as residing, but was usually known as of, and his letters addressed to the wrong parish.

Ordered.

(a) The 11 Geo. 4. & I Wm. 4. c. 38. s. 5. enacts that if any interest be vested in the provisional assignee, which appears of no value to the creditors, but nevertheless it may be expedient that

the provisional assignee should join in some conveyance thereof, that the commissioners of the Insolvent Court may order him to join in any conveyance thereof, &c.

Ex parte CASTLE.- In the matter of PAYNE.

THIS
was a petition of creditors to tax the solicitor's
bills, which had been paid to the amount of 11,000.

Mr. Wright for the petition.

Mr. Twiss for the solicitor :- The petitioners should first have applied to the commissioners under section 114 of 6 Geo. 4. c. 16. and have had the accounts of the assignees audited. But this is a petition of creditors to tax the solicitor's bill. Ex parte Walker, 1 Gl. & J. 95, decided that the assignees, and not the creditors, were to petition.

Mr. Swanston appeared for the commissioners.

Per Curiam:-The decision in ex parte Walker, 1 Gl. & J. 95, was, that a creditor had no right to petition, unless the assignees had been guilty of a dereliction of duty. This case comes within that rule. The assignees are served with this petition, which states, that they paid bills amounting to 11,000l., which bills are not on the proceedings. It amounts to misconduct to go before the commissioners and procure bills to this amount to be paid without preserving a record of the items.

Taxation ordered.

C. of R. July 25, 1834.

Creditors may petition to tax the solicitor's bill, though paid, the assignees having been guilty of

dereliction of

duty in not filing the bills with the proceedings.