I think the later American decisions are in favor of defendant's view, and in accordance (as I think) with the principles of law which we find in the English books.

There is neither privity of estate nor privity of contract between the plaintiffs and defendant, and I think the judgment below is right, and that the appeal must be dismissed, with costs.

Appeal dismissed, with costs.

FOOTT V. MCGEORGE ET AL.

Crown grant-Deficiency in land-Compensation-Trustee and cestui que trust-Restraint on anticipation-Bonâ fide purchaser-Notice.

The plaintiff, who was cestui que trust of certain lands held by B. & P. under a settlement which provided against anticipation, became a party to an instrument, in which B. & P. were named as parties, but did not execute, which, amongst other things, declared that B. & P. had no real interest in certain lands which had been allotted to and were snbsequently granted to them by a patent from the Crown, in which they were described as trustees for the plaintiff, for the purpose of making compensation for a deficiency in the settled estate; and that the person really entitled to such compensation was her husband, G. W. F. Subsequently B. & P. executed a similar declaratiou, and afterwards G. W. F. joined with them in a conveyance of these lands to a bonâ fide purchaser (E.), under whom the defendants claimed. Held, [affirming the judgment of BOYD, C. GALT, J., dissenting ;] (1) That the lands granted as compensation were subject to the terms of the settlement: (2) That the plaintiff's declaration in favor of her husband was inoperative in face of the restraint upon anticipation: and, (3) that the terms of the grant from the Crown were sufficient to put E. on inquiry, and that he and the defendants must be taken to have had notice of the settlement, and plaintiff was therefore entitled to recover. Per GALT, J.-The patent granting the compensation described B. & P. as trustees of the plaintiff, but did not grant the lands to them as such, and it could not be assumed, in the face of the declarations as to the title of G. W. F., that the plaintiff was the party entitled to such compensation.

Foott v. Rice, 4 O. R. 94, affirmed.

THIS was an appeal by the defendants from the judgment of Boyd, C., pronounced on the 18th of June, 1884, declaring the plaintiff entitled to the possession of lot 2 in the 12th concession of the township of Chatham in the county of Kent, and declaring that the defendants held this land subject to the trusts declared in a deed of settlement made by James Black Perrier on the 15th of January,

1852, and that, subject to the satisfaction of any sum to which the defendants might be found entitled upon the accounts being taken in respect of taxes, improvements, and rents and profits, the plaintiff was entitled to have the lands conveyed to such persons as she should appoint as trustees for her, on the same trusts as declared in the aforesaid deed of settlement.

The judgment of the Chancellor was as follows:

The facts of this case it is agreed are the same as those in Foott v. Rice, (a) 4 O. R. 94, with one exception. That is that in this case the patent of the land in question issued after the declaration by which the plaintiff renounced her rights in the land awarded as compensation. The patent here was granted on the 11th November, 1857, and the deed of renunciation was executed on the 4th June, 1857. The patent, however, issued in disregard of this renunciation, and was expressed to be to the grantees as trustees of the plaintiff and in compensation for the deficiency of the land previously settled upon her. It seems to me that difference of fact only strengthens the claim of the plaintiff, because, notwithstanding her alleged abnegation of benefit from or in the compensatory land, the patent issues in trust for her. So that the reasonable inference of any purchaser cognizant of the documents would be that the renunciation was not treated as operative, and that with knowledge of it the Crown still regarded the plaintiff as the proper beneficiary of its bounty. Apart from this single point it is not needful for me to form any opinion upon the other facts of the case, inasmuch as it is my duty to follow the decision of the court in Foott v. Rice. My judgment will therefore be the same as in that case.

The appeal was heard on the 13th of May, 1885. (b.)

C. R. Atkinson, for the appellants.

Robinson, Q.C., and Wm. Douglas, for the respondent.

(a) A decision of the Queen's Bench Division.

(b.) Present.-BURTON, PATTERSON, OSLER, JJ. A., and GALT, J.

June 23, 1885. BURTON, J.A.-This is one of a class of cases which have given rise to the proverb, that hard cases are apt to make bad law." One cannot avoid feeling that the judgment against the defendants, who are purchasers for value, must operate harshly upon them, and that it is one against which a Court would feel anxious to relieve if it could see sufficient grounds for doing so consistently with legal principles.

The plaintiff has only an equitable estate in the land but as the trustees who were clothed with the legal estate have conveyed that legal estate to the purchasers, she is necessarily driven to bring a suit in her own name. What the plaintiff contends here is, that the purchasers, having acquired the legal estate with notice of the trust, stand in no better position than the trustees, and that she is entitled to maintain a suit against them, as she would have been entitled to do against the trustees for the purpose of being placed in possession of the property to which she is entitled for life.

The facts are so fully stated in detail in the judgment in the Court below that I propose to make but a brief reference to them, and only so far as may be necessary to make my statement intelligible.

George Wade Foott was at one time entitled to claim from the Crown the east half of lot 16 in the 1st concession of Dover East, but before the patent issued, on the 12th August, 1837, he conveyed it as containing 100 acres in consideration of £220 to James Black Perrier, a brother of his wife, giving full covenants for title as if he had been absolutely seized in fee simple.

The patent issued in February, 1838, and in November, 1848, by an instrument which recited the issue of the letters patent he confirmed that conveyance.

Sir Anthony Perrier, the father of Mrs. Foott, made his will in 1845, and died in the same year. He gave all his property, with the exception of that which he devised to James, to two other sons, and he then made a devise of that other property to James on the condition that he 45-VOL. XII A.R.

settled the property he had acquired from George Wade Foott to his, the testator's, daughter Mrs. Foott. So that, in effect, Mrs. Foott was obtaining under her father's will this property as her share of the estate, and it was made an express stipulation and condition that James should make it over by fit and proper deeds in trust for his daughter, free from the debts, control, or intermeddling of her husband, by such conveyance as he might be called on or required by Mrs. Foott to make for the purpose of so settling it upon her to her separate use.

In pursuance of this arrangement, Mrs. Foott made a requisition upon her brother James on the 17th April, 1851, to convey the property in Dover to her separate use, and on the 15th January, 1852, a deed was executed to which she was a party, in which the foregoing facts are recited, and by which the land was conveyed to Messrs. Beatty and Prince as trustees for her, with a clause against anticipation.

It would seem then that this lot, assumed to contain 100 acres, was sold to James Perrier for value, he having the intention at the time he purchased of residing upon it, and if, as subsequently was discovered, it contained less than 100 acres, any claim to compensation would seem properly to belong to him or his assigns, and not to Mr. Foott who had sold it as 100 acres, and received full value for it.

In fact the discovery of the deficiency would appear not to have been made until about the year 1855 or 1856, some years after James had, by the direction of his father, conveyed to the trustees of Mrs. Foott.

On the 12th January, 1856, the trustees appointed Mr. Foott attorney for them to demand compensation for the deficiency in the Dover lot, and he proceeded to seek the compensation, and on the 15th September succeeded in obtaining an order in Council, which stated that the application was put forward by the Messrs. Perrier, as trustees for Mrs. Foott, as to the west half, and by James Beatty and Albert Prince, merely describing them as trustees, as to the east half.

The order proceeded to state that the Attorney General

was of opinion that compensation could be safely made to those trustees, and moreover, that Mr. Foott himself might have personally claimed such compensation, a conclusion not so apparent as the former one.

This order was followed up by a letter from the commissioner of Crown lands to the agents for the disposal of Crown lands, referring generally to the order in question as authorising a grant to the Messrs. Perrier and to Messrs. Beatty and Prince, trustees for Mrs. Ellen Foott, in compensation for deficiency in lot 16 and requesting them to allow a selection to the amount of £735 to be made by the agent for the parties, Mr. George Wade Foott, from the Crown lands placed under their charge for sale.

Mr. Foott appears to have made several attempts to have the lands which he purchased under this authority granted to his nominee, a person to whom he had sold or was contracting to sell, but these were ineffectual, and the patent eventually with his consent issued to the trustees. He was more fortunate in reference to the balance of the compensation, payable in scrip, which he succeeded after several years' correspondence in getting handed over to himself personally, but it was otherwise with regard to the lands which he selected in part payment of the compensation, and the patent issued on the 11th November, 1857, to James Beatty and Albert Prince, trustees of Ellen Foott, wife of George Wade Foott, in compensation for deficiency in the east half of lot 16.

In the meantime, viz., on the 4th June, 1857, a document was executed by James Perrier and Ellen Foott, which recites the deed of January, 1852, which Perrier had executed in pursuance of the directions of Sir Anthony Perrier and as a condition precedent to his taking any interest under his father's will. It then proceeded to refer to the fact of certain lands having been ordered by the Government of Canada to be granted to Messrs. Beatty and Prince, as such trustees, as compensation for the deficiency in said lot 16, and then alleges that they have no real interest therein either as trustees or otherwise, they having been