A somewhat complicated land dispute arising out of a marriage settlement and concerning property in Burkill Road was the subject of a lengthy judgment issued on Wednesday by his Honour Judge Lobingier. Plaintiff in the case, recently heard in the U.S. Court, was Mr. Emil 8S. Fischer and the defendant was Mr. Charles Stone, while there were two interveners, Wu Yung-chang and Alice Rude Hansen.
In giving judgment, his Honour said (in part): This is a proceeding to foreclose a mortgage on land, with buildings, located. in the International Settlement of Shanghai, and registered success sively in the British, Danish and American Land Offices. The first and second registrations were in the name of the party who has since become the second intervenor in this cause; the last registration was in defendant's name. After depositing the con-celled title deeds in the American Land Office, but some two months before the completion of the registration therein, defendant executed a declaration of trust in favour of Woo Yung-chang, who has intervened in this action, asking that he be decreed "'to be the equitable owner of the property" and for incidental relief. The second intervener contests both the mortgage and the declaration of trust and prays "that said land be decreed to be vested in her, free from any and all incumbrances." She is of Danish nationality, but has filed a submission to the jurisdiction of this Court, agreeing "to abide by its judgment, subject to the right of appeal."
The mortgage in suit grew out of the former marital relations between plaintiff and Alice R. Hansen. They were married in London, May 15, 1912, when the bride was a few weeks under twenty. On the day before the wedding she, with her testament tary guardian, at whose house ' which she was then living, executed a deed of marriage settlement which embodied various undertakings by each party. Among the undertakings of the wife was the following "6—The said Afice (otherwise Elka) Moore with the consent of her contracting Guardian, Mr. Benjamin Pincus Bonas, promises to transfer to the said Emil Sigmund Fischer on her attaining her age of 21 years, as a dowry. the land and property absolutely belonging to her and situated in Shanghai, China, known as the Burkill Road' property, Mow 2.461, comprising land known as British Consulate Lot 3551? with shops and houses built thereon Q.409 to Q.424 and E.56% to E865 and undertakes as well as her Guardian to sign all necessary documents in proper form in order to make her of the said Alice (otherwise Elka) Sigmund Fischer the legal owner of the aforesaid land and. property the said Emil Sigmund Fischer undertaking and agreeing that—the aforesaid land and property shall not be sold during the lifetime of the said Alice {otherwise Elka) Moore except with the consent in writing of the said Alice (otherwise Elka) Moore and at a price equal to or more than the value thereof stated in writing by and after a proper valuation has been made by a first class and competent land valuer.'?
Not only was this instrument executed by, and with the consent of, the guardian but the testimony is undisputed that he first suggested it. Plaintiff testifies further in that connexion:
"I did not care for any_pre-nuptial agreement. I was disappointed about it but conditions were laid down and I was told also it was the will of the mother, I simply agreed, Q.—So far as you know. did Miss Moore at any time raise any, objection to the pre-nuptial agreement that was signed or to any nuptial agreements?
A.—Never whatsoever."' (IT, 187, 188).
The second intervener does not deny that she signed voluntarily the deed of settlement and admits that she had discussed it with her guardian as well as with plaintiff.
She afterwards wrote to plaintiff: Do not forget that our marriage contract was not made with the sanction of the Court and is therefore void. I will never acknowledge a contract which as I know now is a clandestine one and which 7 was induced to sign under undue influence. If you will not stick to the bargain agreed by you, I will have the contract examined in Court." It will be seen that this invokes a clause of the marriage settlement and embodies a_ ''demand" for its fulfilment. But it is elementary that one cannot be heard to repudiate a contract while claiming benefits thereunder. Besides it is only "if you will not stick to the bargain" that intention to repudiate is indicated. In other words, it is condition] and in the nature of a warning.
As to the remaining portion, it is not true that the contract was "void" because "not made with the sanction of the court." That was only one of the modes of legauzing such a settlement and it is conceded that, by the law under it was executed: The
Text read from the printed page and cleaned; old type leaves the occasional error.