Attwood v Lloyd
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1859 |
| Date | 11 February 1859 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1405
BEFORE THE LORDS JUSTICES.
S. C. 29 L. J. Ch. 97; 5 Jur. (N. S.), 1322. See Freeman v. Pope, 1870, L. R. 5 Ch. 544; In re Johnson, 1881, 20 Ch. D. 394; In re Beetham, 1886, 18 Q. B. D. 383.
[614] lloyd v. attwood, attwood v. lloyd. Before the Lords Justices. July 22, Nov. 8, 9, 10, 11, 12, 13, 18, 19, 20, 22, 25, 1858; Feb. 11, 1859. [S. C. 29 L. J. Ch. 97 ; 5 Jur. (N. S.), 1322. See Freeman v. Pope, 1870, L. E. 5 Ch. 544; In re Johnson, 1881, 20 Ch. D. 394; In re Beetham, 1886, 18 Q. B. D. 383.] Two ladies, entitled to a trust fund which had been improperly lent by the trustees to J. A., who stood towards these ladies in loco parentis, were induced by J. A., not long after their coming of age, to execute releases to the trustees, taking from him a security for the money, which security was known by him to be worthless. No direct communication took place between the ladies and the trustees, nor did the trustees render any account to them ; but the ladies were represented in the transaction by G., a solicitor, who was known to the trustees to have been for years the confidential adviser of J. A., and the transaction was conducted by G. and J. A.'s 1406 LLOYD V. ATTWOOD 8DEO.&J.81B. solicitors, G-. was never, in fact, authorized by the ladies themselves to act for them, but was nominated by J. A., and the ladies did not at the time consider him to be acting for them. Held, that under the circumstances, the trustees could not arail themselves of the releases. Per the Lord Justice Turner. It is the -duty of trustees to see that their cestuis que trust are properly advised as to their rights; and where trustees, in order to support a release, rely on the ground that their cestuis que trust were advised by an independent solicitor, it lies on them to shew that the cestuis que trust did authorize an independent solicitor to act for them. J. A. voluntarily gave to his sisters, in 1848, a mortgage for a term of 200 years, to secure an antecedent debt. The aisters allowed him to retain the title-deeds, that he might give security on the estate for another debt for which he was then being sued by L. Shortly afterwards J. A. agreed, in writing, to give L. a mortgage on the estate for the debt, and the deeds, in pursuance of this agreement, were deposited with G. P. and B., the London agents of J. A.'s solicitor, and who shortly afterwards became hi* solicitors, to be held by them for the purpose of giving effect to the security. J. A., in 1851, made a mortgage in fee to C., who had no notice of the prior incumbrances, and G. P. and B. handed over to C. the title-deeds. In 1855, the sisters made a sub-mortgage of the term by assignment. Held, that the mortgage of 1848 was void under stat. 27 Eliz. c. 4, as against C., who therefore took the legal fee discharged of the term; that C., having no notice, was not affected by the fraud committed by G. P. and B. in parting with the title-deeds : and that, having the title-deeds, and having acquired the legal estate for value without notice, he was entitled to priority over the sisters and their assignee, and over the equitable security of L. Held, also, that the securities of the sisters and their assignee were void as against L. L. had an equitable security, dated in 1848. C., in 1850, took a legal mortgage in fee of the same estate without notice. In May 1851, the estate was mortgaged to W. and A. for 3000, and in August 1851 to E. for 2000. In December 1851, B. and B. lent 6000 on security of the same estate, and in this transaction their solicitors received notice of L.'s security. In September 1853, P. H. took a transfer of the mortgages to C., W. and A., and B., without any notice of L.'s security, but employed in the transaction the solicitors who had been employed by B. and B. Held, that the notice received by them as solicitors for B. and B., in 1851, could not be carried on so as to affect P. H., and that he was entitled to tack the 3000 and 2000 to his first mortgage. The first of these suits was instituted by the trustees under the will of John Hawkins, and under the articles and settlement made upon and after the marriage of [615] James Alexander Attwood with Mary Edden, and its object was to establish an equitable charge on an estate of the Defendant John Attwood called Hylands, for two-third* of sums of 5000 and 10,600, lent out of the trust funds to John Attwood, to which two-thirds the Defendants Maria Louisa Attwood and Mary Attwood had become entitled under the trusts of the above-mentioned will and settlement. The trustees by their bill insisted that they had been released from all personal liability to their eestuis que trust, Maria Louisa Attwood and Mary Attwood. The bill was dismissed by Vice-Chancellor Stuart, and this suit came before the Court upon an appeal by the Plaintiffs from the order of dismissal. Ttie second suit was instituted by Maria Louisa Attwood and Mary Attwood, for the purpose of setting aside a deed executed by them, by which they had released their trustees, the Plaintiffs in the other suit, and of charging the trustees and their representatives with their shares of the above-mentioned trust funds, as having been improperly lent to John Attwood. Thia suit came before their Lordships on the original hearing. In 1840 George Braithwaite Lloyd, William Spencer and John Yeend Bedford were duly appointed the trustees of the will of John Hawkins deceased, by which certain personal estate was bequeathed in trust for Mrs. James Alexander Attwood for life, and after her death for her children. In the year 1841 the trustees sold to John Attwood certain canal shares in which the trust funds were then invested, and allowed him to retain the purchase^money, amounting to 5000, upon his executing an indenture, dated 28th January 1841, by which he covenanted for SDEO.&J. flll LLOYD V. ATTWOOD 1407 the payment of it, and for giving real security for it and for all costs incurred by the lenders. [616] In 1839 John Attwood, J. Y. Bedford and John Cope, the then trustees of the marriage settlement of Mrs. James Alexander Attwood, sold out part of the trust funds and allowed the money to be retained by John Attwood upon his delivering to the other two trustees a deed of the same character as the one last mentioned. In 1841 and 1843 like breaches of trust took place, John Attwood on each occasion giving a similar deed. The sums thus received by him out of the funds comprised in the settlement amounted to 10,600. Much discussion took place before the Court on the question whether these deeds, and the similar one given to the trustees of Hawkins's will, created a specific charge on any estates of John Attwood, but the Court did not consider the point to call for decision, and the terms of those deeds, are not therefore set out. James Alexander Attwood died in 1845 and his wife in 1847, leaving three children, two of whom were minors: James Harrington Attwood, born in 1820; Maria Louisa Attwood, in 1829, and Mary Attwood in 1831. In the latter part of the year 1847 the trustees of Hawkins's will and Attwood's co-trustees of the settlement applied to Attwood for payment of the above sums, and in January 1848, they commenced actions against him for recovering them. These actions were defended on his behalf by Messrs. Gem, Pooley & Beisley, who were the London agents of his country solicitor, Mr. Roger Williams Gem, and whom about this time he began to employ directly as his solicitors. On the 3d of March 1848, an arrangement was come to for staying the actions upon the terms contained in the following memorandum:- " The Defendant to give two mortgages upon the [617] Hylands estate, purchased by him of Mr. Labouchere, redeemable in two years from the date thereof. The debts to be secured are, 1st, the sum of 5000 and interest at 5 per cent, per annum from the last day of payment of interest (subject to the deduction hereinafter mentioned), to the trustees of the will of John Hawkins deceased; 2dly, the sum of 10,600 and interest, at 5 per cent, per annum from the time aforesaid, to John Yeend Bedford and John Cope, two of the trustees of the marriage settlement of Mr. and Mrs. Alexander Attwood. Mr. James Harrington Attwood to enter into an agreement with each set of trustees not to call upon them for payment of any portion of his shares of the said debts to which he is entitled so long as the mortgages are subsisting. The purchase-money for Ann Roberts's annuity, viz., 135, 10s. lid., with interest at 5 per cent, per annum, from the 26th December 1847, to be deducted out of the said sum of 5000 and paid to Messrs. Lloyd & Co., bankers, Birmingham, by whom the money has been advanced to purchase a Government annuity in lieu of the annuity charged by the will of the said John Hawkins. The title-deeds relating to the said estate to be deposited with Messrs. Gem, Pooley & Beisley until the mortgages are executed, and then to be handed over to Mr. George Braithwaite Lloyd the trustee. The agreements to carry this arrangement into effect and the mortgages to be settled by Mr. W. T. S. Daniel, on behalf of both parties, and the costs of and relating to such securities to be paid by Mr. Attwood. The pleas in both the above actions to be withdrawn and interlocutory judgments signed, but no further proceedings to be taken by the Plaintiffs in the actions except upon default of the execution of the said mortgages when tendered to Mr. Attwood for that purposa The costs of the said actions to be paid by Mr. Attwood as between attorney and client." [618] In pursuance of this agreement the title-deeds of the Hylands estate were lodged with Messrs. Gem, Pooley & Beisley on the 7th of March 1848, and afterwards, on the 24th of April 1848, more detailed agreements were entered into. The first of these agreements was between John Attwood of the first part, James Harrington Attwood of the second part, and the trustees of...
To continue reading
Request your trial
-
Monckton v Braddell
...R. 753. Saunders v. DehewENR 2 Vern. 270. Dawson v. PrinceENR 2 De G. & J. 41. Benntt v. Hamill 2 Sch. & Lef. 566. Attwood v. LloydENR 3 De G. & J. 614. Jones v. Powles 3 M. & K. 581. Townsend v. Warren 1 J. & L. 221. Jackson v. ReaENR 2 Sim. & St. 475. Stackhouse v. Countess JerseyENR 1 J.......
-
John Moore and Others, Plaintiffs, v Joseph Kelly, Christopher Moore, and Others, Defendants
...the Court of Appeal, before Sir Ignatius J. O'Brien C., and Ronan and Molony L.JJ. (1) [1913] 1 I. R. 512. (1) [1913] 1 I. R. 512. (2) 3 De G. & J. 614. (3) 4 Russ. (4) L. R. 11 Ch. D. 1. (5) 6 Sim. 31. (6) [1902] 2 Ch. 360. (7) 3 Coke, 121. (8) 6 H. & N. 849. (9) 17 Q. B. 723. (10) L. R. 1......