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Decisions of the Superior Courts of New South Wales, 1788-1899

Kinnerly v Bigge (1835) NSW Sel Cas (Dowling) 513; [1835] NSWSupC 72

equity procedure - marriage settlement - trusts - married women's legal disabilities - conveyancing

Supreme Court of New South Wales

Forbes C.J., 19 September 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465




19th September]


[A single woman seised in fee of land and being about to marry - her intended husband, by way of marriage settlement, executed a conveyance in bargain & sale of her own estate to trustees in trust for her own sole & separate use, subject to such power of appointment as she should make.  Under this power the wife, after marriage & owing the coverture executed a mortgage of the premises.  Held in Equity on [p.58] a bill to foreclose that the marriage settlement was a nullity, the husband having nothing to convey & that the mortgage executed under this power thereby created was void.]



Kinnerley E. Bigge widow.

(In Equity)


This was a Bill to foreclose mortgaged premises, in the usual form, and praying that an account of monies due on mortgage be taken and a day appointed for deft to pay, or to be for ever foreclosed.  The deft demurred to the Bill generally for want of Equity, or to claim relief.  The case was argued last term, & Plunkett S.G. Carter, and Stephen were heard in support of the demurrer and Wentworth & Foster for the Plf.

The Court took time to advise upon the case, and on the Judgment delivered by the Court embraces all the points of the case, it is unnecessary here to recapitulate them.  Now on this day

Forbes CJ. delivered the Judgment of the Court: -  There was a preliminary objection taken on the agreement of this case, namely, that where a bill is for general relief as this is it is not [p.58] demurrable; but this depends upon whether the Complainant is entitled to the relief he seeks. (1 Mad. 215.216.  2 Mad. 285-6.)  There are some nice distinctions between Bills for discovery & for relief, the one as auxiliary to the other, where the one without the other cannot be demurred to.  But still, there is the general rule, "that taking the charges of the bill to be true, the bill must be dismissed upon merits", is always ground of demurrer, both in Equity as it is in law.

The Bill sets out an indenture of three parts, dated 24th April 1822 between Joseph Bigge of the first part; Esther Stubbs widow of the second part, & Rowe & Still trustees of the said E. Stubbs of the third part, reciting that E. Stubbs was seised in fee of a certain message in Philip Street Sydney, and that a marriage between Joseph Bigge & E. Stubbs was intended, and that the said message inter alia, should be settled upon the trust, & to the uses therein after expressed.  The deed as recited in [p.59] the bill then goes on to state that it was witnessed that in consideration of the said intended marriage and for the further consideration of 10pc paid by the trustees to the said Joseph Bigge, he the said Bigge (the intended husband) did "grant bargain, sell, release, their heirs and assigns &c" the said message with a power of appointment reserved to the said Esther Stubbs "to have and to hold the same upon trust for such intent & purposes only as the said Esther Bigge, notwithstanding coverture, should by any writing executed in the presence of two or more credible witnesses, appoint and in default of such appointment &c.  The bill goes on further to recite, that the said deed was signed, sealed and delivered by the respective parties thereto; and after stating that Esther Stubbs had executed the power reserved to her of appointing to the purposes contemplated, to divers persons [p.60] by devising the property settled upon her for a term of years, the bill states the invitation and appointment to the present Plf by way of mortgage, and prays that she be called upon to pay the mortgage money, or be foreclosed.  It appears that after the execution of this deed, the parties intermarried & Mrs Bigge executed different mortgages to different persons, & ultimately to the present Plf, & that Bigge the husband had died since the execution of the mortgage to the Plf.  To this Bill there was a general demurrer for want of Equity.  The objection in limine has been disposed of, & the Bill must stand or fall, upon the general proposition, whether the bill is demurrable for want of Equity, or in the words whether the Complainant has not put himself out of court on his own shewing.  Two grounds of demurrer were urged on the hearing.  First, that the conveyance [p.61] by Joseph Bigge before the intended marriage was a nullity, he having nothing to convey; & Secondly, that the power of revocation and appointment intended to be created by the deed was void ab initio.  Upon the first ground it was argued that the intention of the parties to settle the land in trust for the wife was clear, and that Esther Stubbs being a party to the deed & sealing & delivering it bound herthe informality in stating that it was her own estate.  We have looked into this part of the case, with great care & though all the cases in which the Courts of Equity in England have marshalled the words of a deed to give it the effect and interpretation intended by the parties, where such intention could be clearly collected but we can find none that has gone the length of the case before the court.  If the intention really were to settle the land in fee in trust for the wife, still this must be done in manner & form to effect such intention.  But here the question is what was the intention of Esther Stubbs?  She might have supposed that her intended husband was merely settling upon trust for her separate use, the interest that he would acquire after marriage.  This case is [p.62] distinguishable from Lord Lay & Sele (1 Salk. 341) in which the name of the Bargainer was unintentionally omitted.  There were there, words capable of supplying the defect; & here if the words "direct limit & appoint", only were omitted, there would be something in the argument but there is not only the omission of these words, but something from which nothing definite can be gleaned, & to supply the defect by intendment would be to exercise n arbitrary power & create an estate never intended by the parties.  The power was not lawfully created, & sufficient words for that purpose can no be supplied.  If the Court cd. do so, they might have this power of changing the whole course of property in every case.  The Court would be called upon more to legislate than to decide if they were to supply words having the effect of divesting this women of the seisin in fee & giving her husband the power of conveying it to her again upon time.  This estate was never out of her & this conveyance by the intended husband was really a nullity & therefore after she became married the deed of mortgage therefore executed to the Plf; as it affects her [p.63] is void.  As to the second ground of demurrer it is scarcely necessary to go into that.  This deed was clearly not a feoffment.  There are no words to constitute a feoffment.  It is nothing but a bargain & sale now.  A bargain& sale is inconsistent with a feoffment.  Bargain & sale is a mere contract, & not sufficient to pass freehold.  The very terms imply possession in the bargainers & the statute of Enrollment [sic] (27 H.S. c.16) was expressly passed to vest possession in the bargainee after enrollment.  Here there was no enrollment, and no act done equivalent to enrollment, by acknowledgment of the deed before a Judge by Mr. Bigge.  Indeed the Registration act of this Colony 6 G. 4. No. 22. s. 8. was not in force at the time of the execution of the deed.  The act was passed in 1824 & the deed is dated in 1822.  To give this deed the most favourable interpretation it can at the utmost be taken only to be a covenant to stand seised; but then the power to raise estates [p.64] in future, in which neither consideration is expressed, nor parties ascertained, is too general to be reserved in an instrument which in its nature is a mere contract. (Sugden on Powers. 123. 231)

"where the persons are altogether uncertain, & the terms unknown, there can be no consideration, & former estates raised upon good consideration, cannot be defeated."  Per Ld. C.B.Gilbert Cruize Dig V.4.p.231.  "Every execution of a power must be coupled with the power itself, so that those who claim under the execution of the power must make title under the original instrument creating the power;"  Robinson v Hardcastle (2 T.R. 251).  Now what consideration was there moving from Kinnerley at the execution of the deed referred to?  None.  It appears [p.65] to us therefore that there is a want of Equity in the Plf's bill, & Judgment must be given for the Deft.

Judgment for the Deft on Demurrer.

Published by the Division of Law, Macquarie University