*bound to do, shown that the consideration given was the true [*234] market value at the time of the sale, and that the transaction could not stand. The Court expressly repudiated the idea that it was deciding that no sale of a reversionary interest could be sustained, unless made by public auction; but seemed to consider, that previously to such a sale the vendor and purchaser should concur in ascertaining from persons of complete skill, and having knowledge of the property and of all the circumstances likely to influence the value, a well considered estimate of what the property would be likely to fetch on a sale, and should act on that opinion; and that the opinion of an actuary was very unsatisfactory, with reference to the local circumstances likely to influence the market value.()

7. It seems to have been assumed that the opinions of actuaries are mere quotations from the tables, and that they apply one Procrustean rule to all questions; while in fact it is notorious, at least among actuaries, that the tables will prove any result, according to the rate of mortality and interest selected. On examining the cases it may be thought, that justice has scarcely been done to their opinions; but if so, it is submitted, that the blame to a very great extent rests with the actuaries themselves. Their custom has been, in replying to questions proposed to them to give a value, but to withhold their reasons for fixing it. In this respect they have followed the practice of auctioneers and valuers, who have been guided by their own practice in valuing other descriptions of property. The question in each case is thus reduced to a mere matter of opinion or guess, which is sufficiently justifiable when the subject valued is a chattel of a kind ordinarily sold by the valuer, but in the present case is not satisfactory. The opinion of an eminent actuary or valuer may satisfy the mind of the vendor at the time, but cannot alone satisfy the Court; and indeed the remark of a learned judge as to the opinions of counsel, seems here especially *applicable; [*235] namely, that opinions are only eminent when they give eminent reasons. Were actuaries to follow the example of counsel, and not only give their opinions, but the reasons from which their conclusions are drawn, it may be thought that much greater weight would be given to them. The object, it will be observed, is to ascertain what the reversion would have fetched, or would fetch in the market; which of course, as regards a past transaction, can never be proved absolutely. We can turn to the list of prices current, and find the value of corn or Consols at a particular day, and apply it to a disputed question; but this arises from the fact, that of them there is a constant supply and demand; and that it can scarcely happen that the quantity concerning which the dispute may have arisen, would have been sufficient to influence the market. But with regard to a reversion or contingent interest, although it may be assumed that it may always be sold at some price, yet that price must depend very much on the caprice of purchasers; and unless the insurance offices and reversionary interest companies are taken into account, it is difficult to assume that there must have been a market at a

(1) Edwards v. Burt, 2 De Gex, M. & G. 56. See Edwards v. Browne, 2 Coll. C. C. 100.

fair price. Now, the opinions of actuaries are evidence of what might have been obtained, or might be obtained from such companies taking all circumstances into consideration, and are, therefore evidence of a market price, or at least a price in a particular market at the time. Any other valuation, indeed, can only amount to quotations of what the person giving them considered a fair price; and if so, it may be thought that mere opinions can scarcely carry the same weight as the reasoning in mathematics of an actuary, when fairly stated. For him, however, to give an opinion that may be acted on, he must also have the premises fairly stated. It is not sufficient that the annual income and the ages of the parties should be given; the whole case laid before him must be correct, and he must draw his conclusions from the premises, giving, it may be thought, his reasons at each step. It can then scarcely happen but that, by a judicious application of the means at hand, a result very closely approximating to the truth may be obtained. The [236]

life

may be an exceedingly good one; let, then, a table showing the mortality among lives selected as of a superior class from the ordinary mass, be chosen or the life may be infirm; let, then, the measure of deterioration be ascertained by the opinions of medical persons, and calculation adjusted accordingly. This is done every day by the insurance offices, and the principle may be extended with the increase of scientific knowledge. Again, the purchaser is entitled to some further inducement than the mere prospect of the return of his money with the ordinary interest. The very statement of this proposition suggests the remedy, in the calculation by a higher rate, although what that higher rate should be, must of course depend upon the particular case.

To apply a fixed rule, such as that of calculating on the ordinary rate of interest and then reducing the result one-third, is manifestly absurd, even assuming that some fixed rate is the ordinary rate, which is a mere assumption, for the ordinary rate, in fact, depends on the nature of the security. This will be at once seen, on applying such a rule to two cases where the amount is the same, but in the one the tenant for life is very young and in the other of a very advanced age, and then considering the relative proportions of the deductions as the compensation for the loss of the dominion over the money. A further allowance must be made for expenses, which form a very serious item in the purchase of small reversions, and are yet necessary conditions to realising the property. There is no rule to prevent the costs of the purchase deed being borne by the vendor.(m)

The above remarks, it will be at once observed, apply equally to the opinions of persons of skill, such as the eminent London auctioneers whose names have been mentioned in the cited cases, although not calling themselves by the name of actuaries, since they would probably proceed in a similar manner, and use the same mathematical formula which would be applied by the actuary.

[*237]

8. *It is to be especially remarked, that the property, where not a mere sum of money, and particularly where consisting of real estate, may be such that the annual income produced by it may be no

(m) Sewell v. Walker, 12 Jur. 1041. (V. C. B.)

test of its value: the land may contain unworked mines of coal or other minerals; it may be subject to a lease at an extreme or insufficient rent; and property in the county or locality in which it may be situate, may have attained a very high saleable value. It is well known that the selling value of land, apart from the question of interest, varies very much in different counties. All these questions should be taken into account, and without them the valuation of the actuary is imperfect.

9. When the reversion is subject to the further contingency that the tenant for life shall die without issue, or that there shall be no issue of any other person, the same rules will be applicable. Whether any individual will marry and have issue, is an event not easily reducible to calculation; but this contingency will not prevent the Court from setting aside an unconscientious bargain, although no improper conduct may be charged against the defendant other than accepting the offer of the vendor at an under value;(n) nor will the Courts, notwithstanding the difficulty, consider that as a rule, such a contingency is incapable of valuation.(0) Where the circumstances are such that the contingency is, in the opinion of the Court, of no value, it will disregard it; and when the parties have mutually acted upon the assumption that it is of a particular value, and agreed to reduce the value of the reversion in a given ratio, the Court will estimate the sum that should have been paid on the basis of that assumption. Thus, where a woman, aged 35 or 36, had been married 8 years, and had never had a child, and the contracting parties upon the sale of a reversionary interest, to take effect upon her death without issue, *did not appear to have attached any importance to the contin[*238] gency, Lord Cottenham, C., thought that the value of the reversion should be estimated with reference to the duration of her life only;(p) and in another case, the Court, observing that the probability that a bachelor of 63 will marry and have issue, depending upon the peculiar habits and disposition of the party and the accidents of life, is not the subject of estimate or calculation, but that when the contingency was discovered, the purchaser proposed to deduct one-half of the sum that he had offered, and that proposal was ultimately the basis of the agreement, referred it to the Master to inquire and state the value, first estimating the reversion as if not subject to the contingency, and then deducting one-half of the value in respect of it.(g)

10. Where a reversion was sold for an inadequate consideration, and subsequently by the purchaser for a full consideration, which was paid to him, and the vendor was prevailed upon to join in confirming the second purchase, it was held that he was entitled, notwithstanding such confirmation, to set aside the sale, which was allowed to stand as a secucurity only for the money paid upon the first purchase. The second purchaser had neither himself committed the fraud nor benefited by it, but he was cognisant of it.(r)

(n) Bowes v. Heaps, 3 Ves. & B. 117.

(0) Boothby v. Boothby, 1 Mac. & Gor. 606.

(P) Davies v. Cooper, 5 My. & Cr. 274.

(9) Baker v. Best, 1 Russ. & My. 231.

(r) Addis v. Campbell, 1 Beav. 258, 4 Beav. 401. See Cockell v. Taylor, 15 Beav. 103.

11. And where the consideration for the sale was an annuity, and was considered by the Court to be inadequate on account of the then state of health of the purchaser, the transaction was set aside.(s)

12. When the inadequacy of the price is the sole ground for the interference of the Court, and the purchase is set aside, upon the principle that he who seeks *equity must do equity, the decree is, that the [*239] conveyance shall stand as a security for the price and interest thereon,(t) and the suit is considered as in the nature of a bill of redemption, and the vendor is charged with the costs of the suit; but where there are special circumstances, and there has been a fraudulent abuse of influence by the purchaser, the plaintiff will be entitled to a decree with costs;() and if there has been no actual conveyance, relief will only be given to a vendor as plaintiff, on his repaying the money advanced, with interest;(v) but where the bill was filed by the purchaser for specific performance, and the alternative prayer of the bill was for the repayment of the deposit, and the bill was dismissed with costs for inadequacy of price, the Court refused to order the return of the deposit; (w) the purchaser would, however, be entitled to recover the deposit in an action for money had and received. Although Equity will give the relief already explained, it will consider a great lapse of time a bar, notwithstanding that the term prescribed as a bar by the Statute of Limitations has not passed.(x)

13. The rules, with regard to the adequacy of the consideration necessary to support the sale of reversionary property, do not apply to family arrangements, (y) although even here the Court will inquire as to the general fairness of the transaction, and that a child parting with any interest was aware of the effect of his acts.(z) But, at the same time, where an actuary is called in to adjust a settlement in a family on equitable terms, it does not seem that the value of a reversion brought into the arrangement, should be ascertained, at the high [*240] rate of interest applicable when a sale is to be effected to a stranger; the advanced rate as an inducement to lock up the money, does not seem to be required in such a case.

14. It will often happen that reversions offered for sale or as securities for money, are the property of married women, in which case other important principles are brought into play, which it may not be out of place to glance at in closing this chapter. When such an interest has beed settled to the separate use of a married woman, she can deal with it as a feme sole, unless a restriction against alienation has been superimposed; and unless the subject to be disposed of is real estate, and it is

(s) Davies v. Cooper, 5 My. & Cr. 274; Holman v. Loynes, July, 1853. (V. C. S. not yet reported.)

(t) But not compound interest. Gowland v. De Faria, 17 Ves. 20.

(u) Bawtree v. Watson, 3 Myl. & Kee. 339.

(M. R.)

Lord Anson v. Hodges, 5 Sim. 227.

Kendall v. Beckett, 2 Russ. & Myl. 88.

Sibbering v. The Earl of Balcarres, 14 Jur. 753. (V. C. B.)

Aldborough v. Trye, 7 Clark & Fin. 436; Ford v. Stuart, 21 L. J. C. 514.

(2) Boswell v. Mendham, 6 Mad. 373; Hoghton v. Hoghton, 17 Jur. 99. (M. R.) JULY, 1853.-11

necessary to pass a legal estate so as to bind her heir, in which case a deed acknowledged, in accordance with the provisions of the Fines and Recoveries Act, becomes requisite. In this last case, as in all cases of real estate, her mode of alienation is restrained, but not her power. When the property consists of personal estate, and there has been no settlement either by deed or will, being unable herself to enter into a valid contract, a married woman cannot dispose of it; but her husband, who by the common law is bound to support his wife and pay all her debts, whether contracted before or during the coverture, acquires an absolute interest in all the personal chattels and estate of which she is actually possessed, or to which she is entitled at any time during the coverture. With this condition, that so far as regards her choses in action, they must be reduced into possession, in order to enable him to dispose of them in such a manner as to bind her surviving him, although upon her death such interests vest absolutely in him, subject only to the obligation of taking out letters of administration of her estate. Hence, the reversionary interest of a married woman in personal estate, being incapable of being reduced into possession, cannot be absolutely disposed of during the life of the tenant for life; but the husband may assign his own contingent *rights, arising in the form above mentioned;

[*241] namely, his right of reducing the property into possession, and

his right or chance of survivorship to a purchaser for value.

To this restriction, upon his right of alienation of his wife's reversionary personal estate, there is one exception; he may dispose of her reversionary term of years, provided that it be such as may possibly vest in possession during his life. (a)

When her annuity or life interest is disposed of, the Court considers such part as may be enjoyed after her husband's death to be reversionary.(b)

With regard to her unsettled real estate, a married woman may dispose of it with the consent of her husband, or without his consent where he is under certain disabilities, (c) by an appropriate deed acknowledged under the Fines and Recoveries Act. And in like manner, of her interest in any money-fund subject to a trust for its investment in land or otherwise, and said to be converted in equity into real estate.(d) Or of her share of the produce of any real estate devised in trust for sale; (e) but it has been decided that her acknowledged deed will not pass a sum of money to be raised out of real estate at a future period (ƒ)

Where, moreover, the property is equitable, that is to say, such that the husband cannot recover it in a court of law, the wife will be entitled to her equity to a settlement out of it, and to assert this right against both her husband and his assignees whether by deed or by act of law;

(a) Duberly v. Day, 16 Jur. 581. (M. R.)

(b) Stiffe v. Everett, 1 My. & Cr. 37, Tidd v. Lister, 10 Hare, 140.

(c) Ex parte Taylor, 7 C. B. 1, see 7 C. B. 120; In re Barron, 18 L. J. C. B. 243. (d) 3 & 4 Will. 4, c. 74, s. 77.

(e) May v. Roper, 4 Sim. 360, see 1 Jarman on Wills, 537; Forbes v. Adams, 9 Sim. 466; Briggs v. Chamberlain, 21 L. J. 218. (V. C. W.)

(f) Hobby v. Collins, 17 Law J. 2. (V. C. B.) See contra Sug. Real Property Stat. p. 420, referring to this case under the name of Hobby v. Allen, 20 Law J.,