Atkinson v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1858 |
| Date | 11 November 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1240
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
S. C. 28 L. J. Ch. 2; 4 Jur. (N. S.), 963, 1160; 7 W. R. 42.
[186] atkinson v. smith. Before the Lord Chancellor Lord Chelmsford. Nov. 9, 10, 11, 1858. [S. C. 28 L. J. Ch. 2; 4 Jur. (N. S.), 963, 1160; 7 W. E. 42.] A husband and wife mortgaged by feoffment and fine land of which they were tenants by entireties in fee-simple, and by the proviso for redemption the land was to be reconveyed to the husband and wife and their heirs, or to such other persons or person and for such intents and purposes as the husband and wife or the survivor of them, or the heirs or assigns of such survivor, should nominate, direct, or appoint. By a reconveyance, executed by the mortgagee and by the husband and wife on the mortgage debt being paid off, the mortgagee, by the direction and appointment of the mortgagor and his wife, released and the husband and wife appointed and released the premises to the use of the wife for life, with remainder to the use of the husband for life, with remainder to uses in favour of their daughter and her children. After the death of the wife the husband conveyed the property to a purchaser for value. Held, that the mortgage sufficiently indicated an intention to charge or modify the wife's estate, for the purpose of enabling her to deal with the equity of redemption without a fine, and that her concurrence in the settlement made by the reconveyance was a sufficient consideration to sustain the settlement against the subsequent purchaser. This was an appeal from a decision of Vice-Chancellor Kindersley, declaring that a settlement was fraudulent and void against the Plaintiff as a purchaser for valuable consideration. John Atkinson and Barbara his wife, being tenants by entireties in fee-simple of land in Cumberland, executed an indenture of feoffment, with livery of seisin indorsed thereon, dated the 16th of May 1818, and made between John Atkinson and Barbara his wife of the one part, and John Brown of the other part, whereby, in consideration of 170 lent to them by John Brown, they conveyed and assured the land to the use of John Brown, his heirs and assigns, subject to a proviso that if John Atkinson and Barbara his wife, or either of them, their or either of their heirs, executors, or administrators, should well and truly pay or cause to be payed unto the said John Brown, his executors, administrators and assigns, the sum of 170 with interest for the same after the rate and at the time therein mentioned, then and in such case the said John Brown, his heirs or assigns, would, at the request and expense of John Atkinson and Barbara his wife, their heirs or assigns, or either or any [187] of them, convey the premises unto the said John Atkinson and Barbara his wife, their heirs, and assigns, or unto such other person or persons, and for such intents and purposes and in such manner and form, as John Atkinson and Barbara his wife, or the survivor of them, or the heirs or assigns of such survivor, should nominate, direct or appoint. A fine was, after the execution of the deed and pursuant to a covenant therein, levied by the said John Atkinson and wife. The mortgage money and interest was in the year 1823 paid to John Brown, and by a deed dated the 31st day of December 1827, and made between John Atkinson and Barbara his wife of the first part, John Brown of the second part, and Joseph Atkinson of the third part, after reciting the indenture of the 16th day of May 1818, and that the 170 and interest had been paid off, and that John Atkinson and Barbara his wife being desirous to...
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