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1901.

was ready to convey. Five days' time was unreasonable: Argument. Compton v. Bagley, [1892] 1 Ch. 320. Here the vendee is to pay first: Fortier v. Shirley, 2 M. R. 269. The notice as to time was unreasonable, in the circumstances of the case. Defendant had not been disturbed in his possession. The agreement gives plaintiff a reasonable time after payment, in which to make title: Guthrie v. Clark. As to repudiation for want of title: Paisley v. Wills, 18 A. R. 210. Plaintiff is willing to have money paid into court; she has a valid assignment from Mrs. Green: Farquhar v. Toronto, 12 Gr. 187;Buntin v. Georgen, 19 Gr. 168; Molson Bank v. Carscadden, 8 M. R. 451; Mussen v. G. N. Central Ry. Co., 12 M. R. 574.

C. W. Bradshaw and R. G. Affleck for defendant. Plaintiff has not proved any assignment of the covenant. If there was an assignment the assignor should be a party: West v. Lynch, 5 M. R. 167. The assignment is of the agreement and not of the covenants. There are no words in the document which can operate as an assignment of the benefit of the covenants. If the assignment was of the land only, plaintiff could not have sued: H. B. Co. v. Macdonald, 4 M. R. 240; 1 A. & E. Ency of Law, 352. Assuming the covenants have been assigned, the covenant for payment is dependent on the plaintiff's being able and willing and ready to convey. The payment and the delivery of the deed were intended to be concurrent: Bullen & Leake, 5th ed. 323; Leake on Contracts, 567: Sugden on Vendors and Purchasers, 362; Thames Haven Dock Co. v. Brymer, 5 Ex. 710; Marsden v. Moore, 4 H. & N. 500; McDonald v. Murray, 11 A. R. 101. Here it was the duty of the vendor to tender a conveyance: Dysart v. Drummond, 7 M. R. 68. And, not having done so, the defendant's liability to pay did not arise. Mrs. Green had no title; she had a mere executory agreement. The estate she had was incumbered. It is only in actions for specific performance that incumbrances are not objections to title:

1901.

Dart on Vendors and Purchasers, 321; Hanslip v. Paduick, 5 Ex. 615. The plaintiff could not compel the Argument. mortgagees to take payment. Mrs. Sword was defendant's vendor. The equitable rule would not help the plaintiff. As to the right of an assignee: Government of Newfoundland v. Newfoundland Ry. Co., 13 A. C. 199.

BAIN, J.—The covenant on which the plaintiff sues is contained in an agreement for the sale of land, dated the 17th of April, 1900, made between one Emma Green of the one part and the defendant of the other part. By an assignment dated the 10th of December, 1900, Mrs. Green granted and assigned all her interest in the land and in the articles of agreement to the plaintiff. The price the defendant agreed to pay for the land was $2,200, payable according to the terms of the agreement, $100 on its execution and $2,100, "balance of said price to become due and to be paid on or before the 25th day of April, A. D. 1900." The defendant covenants that he "will well and truly pay or cause to be paid to the party of the first part the said sum of money together with the interest thereon on the days and times and in the manner above mentioned," and also that he will pay and discharge all taxes, etc. Then the agreement proceeds: "In consideration whereof and on payment of the said sum of money with interest as aforesaid in manner aforesaid, the said party of the first part doth for herself, etc., covenant, promise and agree to and with the said party of the second part, his heirs, etc., to convey and assure, or cause to be conveyed and assured, to the said party of the second part, his heirs and assigns, by a good and sufficient deed in fee simple, at the cost and expense of the said party of the first part, with the usual covenants of warranty, the said piece or parcel of land freed and discharged from all incumbrances."

These covenants are substantially the same as were those in the agreement that was in question in Macarthur v.

1901.

Leckie, 9 M.R. 110; and, following that case, I must hold Judgment. that the two covenants here are independent and that the BAIN, J. defendant was bound to pay the purchase money before he could call on the vendor or the plaintiff to convey the property. It was not necessary, then, for the plaintiff to prove the tender of a conveyance or to allege that he was ready and willing to convey.

If the covenant of the defendant is an independent and absolute one, nothing that the defendant has alleged in his statement of defence, or that he has proved at the trial, is any answer to the claim of the plaintiff to recover the amount due under the covenant, and the plaintiff is entitled to judgment for the $2,100 and interest.

It appears, however, that the property in question is now subject to two mortgages; and, although the defendant has not asked for protection against these incumbrances in his statement of defence, the plaintiff is willing that the incumbrances should be paid out of the money the defendant has to pay. The amount of the principal and interest that the defendant has to pay will, therefore, be paid into court and will be applied in payment of all incumbrances on the land that the plaintiff, the vendor, is bound to discharge, and whatever balance remains will be paid to the plaintiff. If necessary, there may be a reference to the master to ascertain what incumbrances there are. The plaintiff is entitled to be paid the costs of the action. I reserve further directions and

costs.

Judgment for plaintiff.

1901.

TURRIFF V. McDONALD.

Before KILLAM, C.J.

Solicitor - Right of solicitor trustee to costs as against the trust estate-The Manitoba Trustee Act, R. S. M., c. 146, s. 40-Lien of Solicitor under Imperial Act, 23 & 24, c. 127.

Held, that, notwithstanding the provision in section 40 of The Manitoba Trustee Act, R. S. M., c. 146, the rule of English law that a sole trustee who is a solicitor cannot charge against the trust estate profit costs for acting as solicitor for the estate still prevails to the extent that he is not entitled as of right to have such costs taxed to him as a solicitor.

Meighen v. Buell, (1897) 24 Gr. 503, followed.

Cradock v. Piper, (1850) 1 Mac. & G. 664, distinguished.

Held, also, that neither the Imperial Act, 23 & 24 Vic., c. 127, nor the Ontario Rule 1129 founded upon it, gives a solicitor an absolute right to a lien for his costs upon property recovered or preserved through litigation but only a discretionary power in the Court to charge the property.

ARGUED: 30th September, 1901.
DECIDED: 3rd October, 1901.

APPEAL from the Taxing Master. A deed was executed Statement. by the defendants McDonald & Schiller assigning certain moneys to the defendant Nugent to be held by him upon the trusts declared in the deed.

Nugent, who was a solicitor, rendered a bill of costs for work done in connection with certain suits, in which suits McDonald & Schiller and Nugent, as trustee for them, had been made defendants. In that bill Nugent charged the usual attorney and client costs.

The objection was taken that Nugent, being a trustee, was not entitled to profit costs as against the cestuis que trustent, or the trust fund.

The Taxing Master decided that Nugent was entitled to tax and be allowed profit costs as against the trust fund for services performed by him as a solicitor, after the creation of the trust.

The creditors of McDonald & Schiller, beneficiaries Statement. under the trust deed, appealed to a Judge in Chambers.

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F. H. Phippen for creditors of McDonald & Schiller. At the time the declaration of trust was executed it was questionable if sufficient would be left for the creditors or there would be any surplus for McDonald & Schiller. Afterwards Delap brought an action to set aside the judg ment, assigned, making McDonald, Schiller and Nugent parties among others. By the judgment in Delap's action costs were given McDonald, Preston, Schiller and Nugent for watching the case carried to the Privy Council. Nugent appeared before the Supreme Court as counsel for McDonald, Schiller, Preston, himself, and the Commercial Bank, and attended before the Judicial Committee for the same parties. As to the right to profit costs: New v. Jones, 1 Mac. & G. 667, was decided in 1833. The trustee, Nugent, apparently does not dispute the general principle, but claims that where a solicitor acts for himself and other trustees and the costs are not thereby increased, he can get profit costs. Bainbrigge v. Blair, 8 Beav. 588, (1845) is against this, but it is contrary to Cradock v. Piper, 1 Mac. & G. 664, (1850) which has not been approved and has been limited as much as possible. In Cradock v. Piper, the action was brought by four executors to establish a will and administer the estate; it was brought through one Watson, one of the executors as solicitor for the plaintiffs. It was held that the rule that a solicitor, being also a trustee and a party to a cause, is not entitled to charge costs except costs out of pocket did not extend beyond the case of his acting as solicitor for himself alone. Lincoln v. Windsor, 20 L. J. Ch. 531, (1851) distinguished Cradock v. Piper by excepting matters outside of litigation. This was apparently done to get rid of Cradock v. Piper. In Broughton v. Broughton, 25 L. J. Ch. 250, (1855) Cradock v. Piper was doubted and distinguished. In Sclater v. Cottam, 3

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