Andrew v Andrew
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1856 |
| Date | 02 May 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 419
BEFORE THE LORDS JUSTICES.
[336] andrew v. andrew. Before the Lords Justices. March 8, 10, 11, May 2, 1856. A testator contracted to sell lands which he had devised, with stipulations as to easements by reference to a plan, which was lost, and had never been stamped. The purchasers paid the deposit and entered into possession on the footing of the contract, but before any conveyance was executed or any further payment made they became bankrupts. Their assignees elected not to complete the contract, and the property was sold under the bankruptcy, on the petition of the testator, as having a lien for the unpaid purchase-money. He bought it back at the sale for less than the amount due to him, and proved for the difference. On his dying without altering or republishing his will: Held, that the will was revoked by the contract, and not set up again by its abandonment. These were two appeals from a decree of Vice-Chaiicellor Stuart, holding that a devise had been revoked by a contract for sale. Thomas Andrew, the testator in the causes, by his will bearing date the 29th of October 1812, devised all those his freehold messuages, lands, tenements and heredita- 420 ANDREW V. ANDREW 8 DE O. M. * 0.337. mente and premises, with their appurtenances, whereof he was seised in fee, situate, lying and being in Crumpsall, Blackley, Harpur Hey and Collyhurst, in the county of Lancaster, and then in the several tenures and occupations of several persons whom he named, to have and to hold all and every the lands, tenements and hereditaments, with the appurtenances, situate as aforesaid, to his son Thomas Andrew for life, subject to the payment of certain annuities and a mortgage; and after the heir's decease the testator devised the said lands, tenements and hereditaments unto the son's eldest son lawfully begotten, if he should have arrived at the age of twenty-one years, or so soon as he shall arrive at that age, and, in default of his son's having a son, over. After the date and execution of this will, and on the 15th August 1835, the testator Thomas Andrew entered into the following contract:- "An agreement made this 15th day of August 1835, [337] between Thomas Andrew of the one part and Aaron Lees and William Harrison Lees of the other part. The said Thomas Andrew agrees to sell unto the said Aaron Lees and William Harrison Lees the fee-simple and inheritance, free from all incumbrances, of and in all those the bleach works, buildings, lands, reservoirs and such right or use as he Thomas Andrew has or is entitled to in or of the river Irk flowing through the said lands or adjoining in part thereto, and all other the hereditaments particularly delineated or described in the map or plan signed by the parties hereto (the same being such part of the estate of him Thomas Andrew, situate in the township of Crumpsall, called the Moss House estate, as now remains unsold, and, by reference to the map or plan, numbered 1, 2, 8, 9, 10, 11, 12 and 13); and also of and in the plots or parcels of land and watercourses of him Thomas Andrew adjoining to the before-mentioned premises, called Hunt's Green Slack, situated in the township of Blackley, in the said county, and as the same appears on reference to the said map or plan inclosed within or bounded by pink or red lines and numbered 14, 15 and 16 (the land in Crurapsall and Blackley aforesaid containing together, as appears by a schedule to such map or plan, 31a. 2r. 35p. of statute measure, be the same more or less), save and except the tithes, tenths, offerings and oblations, of which Thomas Andrew ha s a lease for the unexpired term of twenty-one years from the 29th September 1829, and subject to a lease of the 1st March 1825, granted by Thomas Andrew to Messrs. Wilson & Crighton for the term of thirty years from the 24th June 1824, of the right of using for the purpose of their print works in Blackley the water of Carver Brook flowing through Hunt's Green Slack and the Mosa House estate into the river Irk, for the residue of the said term, under the yearly rent of 45; and also of and in the yearly chief rent of 2 reserved and made payable by a certain [338] indenture of demise of the 28th July 1821, and now payable by James Smethurst, his executors, administrators or assigns, for a small plot of land, part of the Moss House estate, on the south-west side of a street or road in Crumpsall leading from Blackley Street to Moss Fold, containing 320 superficial square yards; and also of and in the yearly rent of 45 payable by Messrs. Wilson & Crighton for the residue of the term of thirty years, and all benefit and advantage of the lessor under the said lease. And it is hereby mutually agreed that Thomas Andrew, his heirs and assigns, owners for the time being of the lands and premises belonging to him Thomas Andrew in the townships of Blackley and Harpur Hey, or either of them, and the lessees, tenants and occupiers thereof, or any of them or any part thereof, or of any of the buildings to be erected thereon respectively, with or without horses and carriages, along and together with the said Aaron Lees and William Harrison Lees, their heirs and assigns, owners for the time being of the said hereditaments and premises hereby agreed to be sold, as also of the hereditaments belonging to Aaron Lees and William Harrison Lees, and heretofore conveyed to them by Thomas Andrew, and their and his lessees, tenants and occupiers thereof respectively, or of any of them or of any part thereof, or any of the buildings to be erected thereon respectively, with or without horses or carriages, shall have, use and enjoy the road or way leading from Blackley, through Hunt's Green Slack and the Moss House estate, to the new turnpike road from Manchester to Rochdale, at the point or place called Three Lane Ends, he and they contributing from time to time to the repairs of the road as hereinafter mentioned. And it is also agreed that the said Thomas Andrew, his heirs and assigns, shall have the power DE 0. M. 4 0. S39. ANDREW V. ANDREW 421 and privilege of laying sewers and drains under such part of the road through Hunt's Green Slack as lies co-ex-[339]-tensive with the land of him Thomas Andrew, to fall into Carver Brook at the place in the map or plan marked or printed 'Ford.' The purchase-money for the said hereditaments to be the sum of 5950, to be paid as hereinafter mentioned." After provisions as to the superintendence and management of the above-mentioned road, and the mode in which the expenses of maintaining it were to be bdrnej the agreement proceeded thus :-" That Aaron Lees and William Harrison Lees, their heirs and assigns, tenants and occupiers for the time being, shall contribute and pay in respect of the Moss House estate (of which they will by this contract become the exclusive owners, except as to two certain plots of land heretofore conveyed by Thomas Andrew to Jonathan Andrew) and Hunt's Green Slack " two-thirds of the expenses. Then there was this provision :-" That inasmuch as the said Thomas Andrew has already at his own expense furnished unto Aaron Lees and William Harrison Lees, in respect of their former purchase from Thomas Andrew of a part of the Moss House estate, with a factory and buildings thereon erected, an abstract of his title to the Moss House estate, which includes the land, bleach works and premises in Crumpsall hereby contracted to be sold, as also an abstract of the title of him Thomas Andrew to the land and watercourse called Hunt's Green Slack, in respect of their former purchase from Thomas Andrew of certain cottages erected on part thereof, he Thomas Andrew shall not be required to furnish any further abstract or abstracts as respects the land and premises hereby contracted to be sold or any part thereof, and that Aaron Lees and William Harrison Lees shall be satisfied with the titles as heretofore shewn and approved of by their solicitor, and shall not require any evidence of any deeds, writings or facts recited in the former conveyance." Then there was a provision that the purchasers should have attested [340] copies, and that the testator was to retain the deeds, as they related to other premises in Blackley. Then the purchase-money of 5950 was to be paid, as to 100 at the time of signing, and as to 5850, the remainder, on the 25th December then next, when the purchasers were to be let into possession, and all outgoings were to be cleared up to that time by the testator. The map referred to by the contract existed at the date of it and for some time afterwards, but had since been lost. Upon the contract being signed the purchasers paid the deposit of 100, but they paid no further portion of the purchase-money, and no conveyance was ever made to them. They, however, entered into possession of the estate soon after the date of the contract, and continued in possession and receipt of the rents until the death of William Harrison Lees, paying interest upon the unpaid purchase-money. William Harrison Lees died on the 9th January 1836, and his interest in the purchased premises thereupon vested in Aaron Lees, who in like manner continued in possession, paying interest down to the time of his bankruptcy. On the 23d December 1837, Aaron Lees became bankrupt, and thereupon the testator applied to the assignees for the purpose of ascertaining whether they intended to complete the contract; in answer to which inquiry the assignees, on the 9th March 1838, stated their determination to abandon the bankrupt's interest in the property. The testator then presented a petition to the Court of [341] Review in Bankruptcy, by which he repudiated the abandonment on the part of the assignees, asserted that the contract was still binding, and claimed an equitable lien for the unpaid purchase^money, and a right to prove against the estate of the bankrupt for so much of the purchase-money and interest as might not be...
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