The Times, Monday, Jan 20, 1873; pg. 11; Issue 27591; col A






This was an appeal from a decision of Vice-Chancellor MALINS. 

The object of the suit, which was instituted by “Sir Frederick Henry VANE, Bart. (heretofore commonly called Frederick Henry VANE,” against “Henry Ralph VANE (heretofore commonly called Sir Henry Ralph VANE, Bart.),” and others, was to obtain a declaration that the plaintiff, as the eldest son of Sir Frederick Fletcher VANE, deceased, is entitled to the family estates in Cumberland and Westmoreland, and to have an account taken of the rents and profits received by the defendant, H. R. VANE, with an order for payment to the plaintiff of what should be found due. The case made by the bill was that Sir Frank Fletcher VANE, the father of the plaintiff, before his marriage cohabited with, and had three children by, Miss Hannah BOWERBANK, the lady whom he subsequently married, the first of such children having been born in 1794 and the second in 1795. It was upon the legitimacy of the third of these children that the question turned. The plaintiff alleged that pending arrangements for his father’s marriage with Miss BOWERBANK, she was prematurely confined of the third child, a son, and that the marriage did not, in fact, take place until nearly three weeks after her confinement – viz., on March 9, 1797. The child thus born, as the plaintiff alleged, about three weeks before the marriage on the 9th of March, was baptized by the name of Francis Fletcher VANE at St. George the Martyr, Bloomsbury, on the 16th of April, 1797, and in the entry of his baptism he was stated to have been born on the 29th of March, 1797. As to this entry it was alleged by the plaintiff that the register had been tampered with and that the date of the birth was added some time after the original entry. The bill then stated that Sir Frederick Fletcher VANE brought up Francis Fletcher VANE, the child thus born, as his legitimate heir. After the marriage two other children were born – i.e., a daughter, and the plaintiff, who was born on May 10, 1807. Francis Fletcher VANE married in 1823, and upon the death of his father in 1832 assumed the title, and entered into the possession of the family estates. He died in 1842, and the defendant, Sir Henry Ralph VANE, who was his eldest son, and consequently the nephew of the plaintiff, succeeded him. Lady VANE, the widow of Sir Frederick Fletcher VANE, did not die until 1866, and the plaintiff accounted for the length of time which had elapsed before he attempted to assert his rights by the statement that from the year 1826, when, at the age of 19, he obtained a commission in the 12th Lancers, down to the year 1866 he had only been for a few days at a time at the family place in Cumberland, and that in that year he for the first time became aware through inquiries made, in consequence of some remarks let fall by the widow of Sir Francis and of a subsequent conversation with the widow of Sir Frederick before her death, that there was any doubt as to the legitimacy of his elder brother. The plaintiff further charged by his bill that the illegitimacy of Sir Francis was not only known to Sir Frederick and his wife, but was disclosed by Sir Frederick to Sir Francis, and also that the illegitimacy was well known to Mr. C. G. BEAUCLERK, the father of the defendant Dame Diana Olivia VANE, the widow of Sir Francis, and that Mr. BEAUCLERK negotiated the settlement made on his daughter’s marriage with Sir Francis as the agent and on behalf of his daughter with full knowledge that Sir Francis was illegitimate and had no interest in the estates included in the settlement. To this bill demurrers were put in by Sir Henry and his wife, and by his mother, Dame Diana. The Vice-Chancellor overruled the demurrers, and the defendants appealed. By the Statute of Limitations, 3 and 4 William 4, cap. 27, 20 years is fixed as the ordinary period within which a person must bring a suit to recover property of which some one else has obtained possession; but by section 26 it is provided that in every case of a concealed fraud the right to bring a suit in equity to recover land of which a person has been deprived by such fraud shall be deemed to have first accrued “at and not before the time at which such fraud shall, or, with reasonable diligence, might have been first known or discovered, provided that nothing in this clause contained shall enable any owner of lands to have a suit for the recovery of such lands against any bona fide purchaser for valuable consideration who has not assisted in the commission of such fraud, and who at the time he made the purchase did not know and had no reason to believe that any such fraud had been committed.” The appeals were argued partly before the Christmas Vacation, the arguments being concluded last Saturday. The main argument on behalf of the appellants was that they were entitled to the benefit of the proviso at the end of section 26 of the statute. 

Sir R. BAGGALLAY, Q.C., Mr. PEARSON, Q.C., and Mr. R. G. MARTEN were for the appellants; the Solicitor-General, Mr. GLASSE, Q.C., and Mr. Newton SMART were for the plaintiff.

This morning the judgment of the Court was delivered by 

Lord Justice JAMES, who said, – The only question we have to determine is, whether the defendants ought or ought not to put in an answer to the plaintiff’s allegations. The Court has nothing now to do with the probability or improbability of the plaintiff’s story, with the probability or improbability of his ultimate success at the hearing, nor with any considerations of the hardship to the defendants, a widow and son, themselves innocent, in that they are called on to meet a case of fraud alleged to have been originally committed generations ago by persons who have been dead many years. The plaintiff’s case must for this purpose be taken to be true as stated by him. After stating the nature of the case alleged by the bill, his Lordship said, – Unless the plaintiff’s case is affected by lapse of time, by the operation of the Statute of Limitations, or by some countervailing equity on the part of the defendants, that case would seem to be a perfectly clear one. It is as gross a fraud as could well be conceived. After referring to some of the arguments adduced, his Lordship proceeded. It appeared to us throughout this case that the real question is as to the true meaning of the 26th section of the Statute of Limitations. On this two questions were raised, – (1) that the plaintiff had not alleged a sufficient title under the positive enactment in that section, (2) that the defendants were within the protection of the proviso in favour of purchasers. As to the first question, there does not seem to us to be any real doubt. It is difficult to conceive what would be a coverable fraud if what is here alleged is not – viz., that a person was induced by a deception practised on him from his earliest knowledge to believe that he was only a younger son when he was the eldest son, or how a person could be more effectually deprived by fraud of his estate than by his being designedly by the persistent falsehood and deceit of those about him kept in ignorance of his birthright, and so prevented from claiming it. The plaintiff alleges, in so many words, that he never did know or suspect until the recent time mentioned by him anything of the alleged fraud, and we are unable to find in the bill anything to show that allegation to be false, or to show want of reasonable diligence on his part in ascertaining the truth. That brings us to the remaining and real point, whether the bill shows that the defendants are protected by the proviso in the 26th section, whether the proviso means the actual personal knowledge of the purchaser, or whether under it the actual knowledge of the agent is to be deemed and taken as the knowledge of the purchaser. At the time this statute was passed it had undoubtedly been held by the highest authority that the actual knowledge of the agent through whom an estate is acquired is in this Court equivalent to the actual personal knowledge of the principal. This is also in accordance with the invariable course of decision at Common Law in regard to purchases of chattels. No one dealing through an agent is ever permitted to allege himself ignorant of that which is actually communicated to the agent in the course of the transactions. The agent in this matter and in the course of the transaction, acting within the limits of his agency, is the alter ego of the principal. It appears to us, beyond all question, that as the law of this Court stood when the statute was passed the knowledge of the purchaser’s agent was for all purposes treated as the knowledge of the principal. It is also, we consider, beyond question that in every other case, except under this section, the Court would treat the knowledge of the purchaser’s agent as the knowledge of the purchaser. Was it then meant to make such a material alteration in the law? It is said in support of that (and not without force) that the words, well known in this Court, “purchaser for valuable consideration, without notice” were designedly not used, and that the words, “purchaser for valuable consideration, who has not assisted in the commission of such frauds, and who at the time that he made the purchase did not know and had no reason to believe that any such fraud had been committed,” were designedly introduced, so that only those purchasers should be affected who had actual knowledge, and who were in truth making themselves morally accountable in the fraud – in fact, receivers of stolen goods. But we think what the Legislature really meant to do was to exclude that constructive notice which had certainly been carried to a very startling extent in many instances, and that it did not mean to subvert, in respect of one small portion of the law of this Court, the well-settled principles and rules on which all the Courts have acted in respect of the relation of principal and agent, and in respect of the extent to which the knowledge of the latter is deemed to be the knowledge of the former. The Courts had, in fact, held almost in so many words that what the agent knows the principal knows, that the knowledge of the agent was sufficient to create mala fides in the principal. And we think it reasonable therefore to hold that the Legislature used the words in the same sense, and that when they said “who did not know and had not reason to believe,” they meant “who did not know or had not reason to believe, either by himself or by some agent, whose knowledge or reason to believe is by settled law deemed and taken to be his.” We think it would lead to very startling consequences if any other interpretation were put on the clause. It is obvious that if actual personal knowledge were required every Corporation or Joint-Stock Company might acquire a good title to property, although its officers and solicitors were perfectly conversant with the grossest fraud perpetrated by the vendor, and, in fact, any person might deal with impunity in the purchase of what is in substance stolen property, provided he takes care to leave the whole dealing from first to last in the hands of his agent. We have arrived, therefore, at the conclusion that the averment in the bill that the father, as the agent and on behalf of his daughter, negotiated the marriage settlement with full knowledge that her intended husband was illegitimate, is a sufficient averment to preclude the daughter from setting up the bar of purchase for valuable consideration under the 26th section of the Act, and that the son, who only claims through the same settlement, is in the same position, and is equally affected with knowledge through the knowledge of his mother’s father and agent. The defendants must put in an answer, and the appeals will be dismissed, with costs.