named as grantees of such compensation from their being the present owners of lot 16: that George Wade Foott is the beneficial grantee of such compensation, and the original purchaser of the lot 16.

It then recites the desire of James Perrier and Ellen Foott to declare that the trustees are the nominal and not the beneficial owners, either as trustees or otherwise, of the lands so granted as compensation; and then proceeds to declare that they are not, nor is either of them, in any way interested in the lands so ordered to be granted as compensation for such deficiency: and that the parties of the third part (that is to say the trustees, although they do not execute the instrument) hold the lands so ordered to be granted as trustees of and for, or attorneys for, the said George Wade Foott, and not otherwise, and are to dispose of such lands as the said George Wade Foott may by instrument under his hand and seal, direct and appoint.

In the light of the frequent letters of Mr. Foott to the Department endeavoring to get the issue to himself in place of his wife's trustees, it is not difficult to trace the parentage of this document whatever may be its value. It was an easy thing for Mr. Perrier, who had no interest in the land at this time, to make such a declaration; but it is going a long way, as I observe one of the learned Judges does in the Court below, to refer to him as the creator of the trust. He had nothing to do with the creation of the trust further than to carry out the instructions of the real settlor, the testator Sir Anthony Perrier, a failure to do which would have deprived him of the benefits secured to him under the will. Any attempt on his part to derogate from what was in truth the devise of Sir Anthony in favor of his daughter was, of course, a nullity, to use no stronger term. It would be a monstrous thing if a person who had ceased to have any interest in the land could, by a mere declaration, defeatthe testator's intentions and deprive his devisee of the full benefit intended for her. So that the question resolves itself, as between Mrs. Foott and her trustees, into whether this declaration made by a married woman, in whose favor

a settlement is made with a clause against anticipation, is to render the settlor's wishes and intentions nugatory, and expose the settled property to all the risks which it was the intention of the settlement to prevent.

Mrs. Foott denies all knowledge of having executed such an instrument, and I can well believe that she was never informed of its true nature, but I think that in law it would make no difference if she had known it-that she had no power to anticipate and that her consent affords no justification to her trustees, who must be presumed to know the law.

The question is not now between her and her trustees, who have conveyed to persons who were purchasers for value, and who are relieved, if they can be said to have purchased without notice; if with notice, they stand in the same position as the trustees, and the plaintiff is entitled to the same remedies against them that she would have against the trustees so far as the enforcement of the claim to possession goes.

They admit, and the case has been argued on that footing, that they had such notice as the patent affords, but it is contended that that is not such actual notice of the terms of the settlement as is sufficient to charge them.

I think there is no room for that contention, and agree with my brother Cameron that having notice that the parties were trustees for a married woman was sufficient notice of the settlement, an examination of which would have shewn that the trustees had no power to deal with the land as they have done.

I am of opinion therefore that the decree of the learned Chancellor ought to be affirmed and this appeal dismissed, with costs.

PATTERSON, J.A., concurred in dismissing the appeal, with

costs.

OSLER, J.A.-This is in substance though not in form, an appeal from the decision of the Queen's Bench Division of

the High Court in the case of Foott v. Rice, 40. R.95.

The plaintiff sues as cestui que trust or beneficiary under the deed of the 15th January, 1852, and the object of the action, which in form is one merely for the recovery of land, is to bring the land sued for into settlement, under the trusts of that deed.

These trusts so far as they are important in the present inquiry may be briefly stated as [being for the sole and separate use of the plaintiff during her life, free from the control of her husband and without power of anticipation, and after her death for such person as she should by deed or will duly executed in accordance with the terms of the settlement appoint.

The land in question was granted by the Crown on the 11th November, 1857, to Messrs. Prince & Beatty, who are described in the patent as "trustees of Ellen Foott, (the plaintiff) wife of George Wade Foott," and the grant is therein expressed to be "in compensation for deficiency in the east half of lot No. 16 in the front concession on the Thames of the township of Dover East," that being the property embraced in the settlement.

The plaintiff's right to recover mainly rests upon two propositions, namely, (1) that the trustees of the settlement, and not the settlor, or her husband, or any other person, were the parties to whom, in their fiduciary character, the compensation for deficiency rightfully belonged, and to whom, as regards this land which is part of it, it was properly granted: and (2) that Emery, under whom the defendants claim, had notice of their title when he acquired the property.

Upon the most attentive consideration I have been able to give to the case, I agree with my brother Armour that the right to claim compensation for the deficiency was in the plaintiff's trustees, and not in her husband George W. Foott or her brother James Black Perrier, the settlor. The east half of lot 16, in which the deficiency occurred, never really belonged to George W. Foott as he had, for valuable consideration, before the issue of the patent, conveyed all

his right and interest therein, describing the half lot as containing 100 acres, to James Black Perrier, to whom, after the issue of the patent, he also executed a deed of grant, release, and confirmation thereof.

Under the terms of his father's will James Black Perrier was bound, in consideration of the devise therein made to him, to relinquish in trust for Mrs. Foott all and every his estate, interest, and claim "in said tract of land," that is to say the east half of 16, which he had acquired as containing 100 acres; and he did accordingly do so by the deed of the 15th January, 1852, already referred to. There is nothing in the evidence which justifies us in assuming, contrary indeed as such assumption would be to the terms of the deed, that either of the grantors reserved any right to the compensation, or did not convey, or did not receive consideration for, the property as containing the acreage it was supposed and represented to contain. That being so, it would seem to follow, as a matter of course, that the right to the compensation would be in those grantees during whose title the deficiency was discovered and whose loss it was. They, in this case, were the plaintiff's trustees, by whom the claim for the compensation was made, and to whom it was in fact granted.

The compensation thus obtained by them for the deficiency in the trust estate, would form part of the corpus of the estate and would therefore be subject to the terms of the settlement, and among others, to the restraint upon anticipation.

Butler v. Cumpston, L.R. 7 Eq. 16, cited by Mr. Atkinson, relates merely to the wife's savings from the income of separate estate settled on her without power of anticipation, her investments of which are her separate property over which she has absolute dominion, unfettered by the settlement. The case is no authority for holding that anything which in point of law forms an accretion to the corpus of the estate is in the same position as the savings from the income.

I also agree that Emery and the defendants must be

taken to have had notice of the settlement from the fact that in the patent the vendors of the former are described as trustees of the plaintiff, and that the land is expressed therein to be given as compensation for deficiency in the east half of lot 16. This was a circumstance affecting the property of which the purchasers had actual notice and if they had made the inquiry which was naturally suggested by it they would have been led directly to the trust deed. It is true the notice is constructive notice only of the latter, but that is sufficient where it is not a question of defeating a registered title, but of affecting a purchaser with notice of the trusts to which the property is subject in the hands of his vendor: Boursot v. Savage, L. R. 2 Eq., 134; Jones v. Smith, 1 Hare, 43, 55; and see the authorities referred to in W. & T. L. C., 4 ed., vol. 2, pp. 51, 54, 55; Story's Eq. Jur., vol. 1 sec. 400; Pomeroy's Eq. Jur. vol. 2, secs. 626-630.

The defendants are not in a position to invoke the aid of the rule acted on in Jones v. Smith, supra, and in Re Bright's Trust, 21 Beav. 430, that notice of a deed accompanied by an erroneous statement of its contents is not necessarily notice of its real contents, for here there was actual notice that the property was in some way affected with the plaintiff's interest, and, except in the recital of the conveyance to Emery, there is no erroneous statement of the trust deed. But that was a statement of the very mode in which the trustees were authorised to convey, not of something collateral, or an erroneous statement that the lands were not in fact affected by the trusts. The grantors professed to convey in their character of trustees of the plaintiff, and it was manifestly incumbent on the purchaser to assure himself that their power was truly recited.

If I am right in holding that the compensation belonged to the trustees, and that the defendant had notice of the trusts, on what ground can the plaintiff's title be defeated? The defendants urge that the clause against anticipation was improperly inserted in the trust deed, because not