Stuart v Kingston [1924] UKPCHCA 3

394 HIGH COURT

(PRIVY COUNCIL.)

STUART AND ANOTHER . 4 4 . APPELLANTS ; PLAINTIFFS, AND KINGSTON AND OTHER: . RESPONDENTS. Derenpants, McCARTHY . - ' i a Bi 5 . APPELLANT > Derrenpanr, AND STUART AND OTHERS . : : : . RESPONDENTS. PLarIntiFrs,

ON APPEAL FROM THE HIGH COURT.

Privy — Lrustee—Breach of trust—Trust for sale—Parting with trust property to beneficiary—

Councit. Compromise—Order of Court—Registered proprietor of land—Protection om 1924, registration—Fraud—Bona fides—Constructive trustee—Real Property Act 1886 ar (S.A.) (No. 380), sees. 69-72, 249-—Trustee Act 1893 (S.A.) (No. 586), sec. 21—

Aug. 1. Rules of the Supreme Court of South Australia 1893, Order LXIX.: Order

LXXUL, 1. 14.

By his will a testator who died in 1880 gave his real and personal property to his trustees upon trust to sell and (in the events that happened) to hold the- proceeds upon trust for his five children (who survived him) in equal shares. Included in his real property were his town house, his seaside residence and a block of land. In 1899 one of the testator's sons, A, was in occupation of the town house under a lease from the trustees, and, as he was paying no rent or interest, they were desirous of obtaining possession of the house. A and his

* Present—Viscount Cave, Lord Dunedin, Lord Carson, Lord Blanesburgh: and Mr, Justice Duff.

34 C.L.R.] OF AUSTRALIA.

wife were, at the same time, making charges of waste against the trustees in

respect of the seaside residence, A's having by assignment acquired the interest of the testator's other son, B, in the estate. An agreement was in April 1899 made between A and his wife and the trustees, which was expressed to be for the purpose of settling family differences, whereby it was agreed (inter alia) that A's wife should take the seaside residence and the block of land and should pay a certain sum of money on transfer of those properties, that A and his wife should release the trustees from all claims and should give up possession of the town house, and that the trustees should release A from all claims. 'This agreement was prepared by the solicitor for A and by the solicitor for A's wife. A and his wife not having given up possession of the town house, an action was in July 1899 brought in the Supreme Court of South Australia by the trustees against A and his wife, claiming specific performance of the above agreement; A and his wife by their defence alleged that the agreement was a breach of trust and charged the trustees with waste. The Master, on an inquiry directed by a Judge, reported that the two infant children of B were interested in the agreement, being presumptively entitled under the will of a deceased daughter of the testator to her share in the testator's estate, and were benefited by the agreement, and that no parties were necessary to the action in respect of the share of that deceased daughter. The hearing of the action then took place, and the Judge, notwithstanding the opposition of