Bancks v Ollerton
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1854 |
| Date | 07 June 1854 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 400
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C. 2 C L R 1090, 23 L. J. Ex 285, 2 W. R 622. And see In re Ollerton, 1855, 15 C B. 796
[168] bancks v. ollerton. June 7, 1854.-R. B, being seised in fee of five dwelling-houses, on the 8th of February, 1788, devised the same to hih wife for her life, and after her death he devised two of the houses to his daughter Ellen, the wife of G Fleming, for her separate use, with power to dispose of the same tit her death amongst her chrldren which should be then living, and after the death of his wife, the testator devised the three remaining houses to Ellen Bancks, the daughter of his late daughter, for her sole use, with power to dispose of the same among her lawful issue her surviving, and their heirs for ever, as she should think fit; and if either his said daughter or granddaughter should die without issue, he gave to the survivor what the deceased had before had, subject to the same limitations, and if both should die without issue them surviving, then the testator gave the property to be divided amongst hrs brothers and sisters, and others In 1788 the testator died, when his wife entered into possession of the property, and enjoyed the same till her death in 1810 In 179S, Ellen, the widow of G. Fleming, intermarried with the defendant, and died in 1818, without issue. On the death of the testator's wife, the plaintiff, and the defendant in right of hia wife, entered into possession of their respective shares of the property. By an indenture made, in 1843, between the defendant and his wife of the first part, J. C of the second part, and J Lord and \V Acker ley of the third part, after reciting the above facts, and that the defendant was seised in fee simple of the property, and that the said Ellen Ollerton was the testator's heiress-at-law, and that tie defendant (her husband) was seised in fee simple of the property thirdly thereinafter described, and that the defendant and his wife were indebted to the said J. Lord and \V. Ackerley in a certain sum of money lent; it was witnessed, that the said J. Oiler ton and Ellen his wife, in consideration of the money so lent, and of 10s paid to them by the said J C , the said E Ollerton 10 EX 169 BANOKS V. OLLERTON 401 joining therein, as well to release and convey the said hereditaments firstly and secondly thereinafter descubed, as to release and extinguish evt:iy light and title to dowei which she might have with or out of the said heieditaments thirdly thereinafter described, and to the intent that the then reciting indenture might operate and take effect by force or under the Act for rendering a release as effectual for the con\eyance of freehold estate as a lease and release by the same parties, did grarrt and convey to the said J C and his hens, first, those two dwelling-houses by the said will devised to the said Ellen Ollerton , and secondly, those three dwelling houses by the said will devised to E B (the testator's grand-daughter), and all other lands &c whrch the said Ellen Ollerton \\as entitled to as heiress-at-law of the said testator and thirdly, certain premises belonging to the sud .J. O eVic , to hold the same, subject as to the premises secondly described to the life estate of the said E B, to the said J C and his heirs, to the use of the said J Lord and W Ackerley foi 1000 years, upon certain trusts , and after that term to such uses as J Olletton and Ellen his wife should by deed in wilting appoirrt, and, in default of any such appointment, to the use of the survivor of them, as he or she might appoint by deed or duect by will, and, in the meantime, to the use of J Ollerton and Ellen his wite dining then joint Ineb, and the survivor of them, and it w.us in the said indenture declared, that the said term of 1000 years \\as so limited to the said J Loid and W. Acker iVy for the purpose of securing the repayment of the said sum so lent, with interest Ellen Ollerton died without having made any appointment of the property limited by the settlement Thrs indenture was prepared by J Loid and \\' Ackei ley, \vho were the only solicitors employed in the transaction, and was executed by ,F Ollerton arrd Ellen his wife, and was acknowledged by the latter before the said .1 Loid, one of the mortgagees of the said indenture, and one E Woodcock, perpetual commissioners for taking the acknowledgments of married women, the said E. Woodcock not being in any manner inteiested in the transaction giving occasion for the said acknowledgment, or concerned therein as attorney, solrcitor, ot agent, or as clerk to any attorney, solicitor, or agent so interested or concerned And the commissioners signed a certrficate of their having taken t-uch acknowledgment rn the form pointed out by the 3 & 4 Will 4, c 74 , which certificate, and the affidavit verifying the same, was filed of record, according to the rules ot the Court of Common Pleas. In ejectment by Ellen Bancks to recover pait of the premises devised to Ellen Ollerton .-Held, first, that the circumstance of the remainder devolving on Ellen Ollerton as heuess-at-law, at the same time that her life estate took effect undei the will, did not operate as a merger of the lite estate, so as to bat the contingent remainder which the plaintiff had in the property in question -Secondly, that, assuming the deed of 184.'} to have been properly executed by Ellen Ollerton, so as to pass her interest in possession and reversion, it operated to destroy the plaintiff's contingent lemainder, since the union of the two estates was necessary to laise the uses limited by the deed, and rori.- eqiieritly the life estate was thereby merged in the reversion in fee -And thirdly, that inasmuch as it did not appeal1 on the face of the certificate ot the acknowledgment, that the J Lord mentioned therein was the same J Lord the moitgagee, the certrficate could not be thus questioned, and the execution of the deed was valid (a) [S C. 2 C L R 1090 , 23 L. J. Ex 285 . 2 W. R 622. And see In ie Olhitoti, 185.1, 15 C B. 796 ] This was an action of ejectment to recover possession of a dwelling-house and premises at Hindley, in Lancashire [169] At the trral, before Martin, B , at the Liverpool Spring Assizes, 185.3, a verdict was taken for the plaintiff', subject to the opinion of this Court on the following case - The case stated that, on the 8th of February, 1788, Richard Bancks, being seised in fee of the propeity in question, made hrs will, whereby, after charging his realty and personalty with the payment of his debts and funeral expenses, he gave and devised to Elizabeth his wife five dwelling-houses in Hindley for her natural life, and (ct) See the 17 & 18 Viet c 75, intituled "An Act to remove Doubts concerning the due Acknowledgment of Deeds by Married Women in certain cases " 402 BANCKS 1'. OLLERTON in EX 170. from and after her decease he gave and devised two of the said dwelling-houses to Ellen, the wife of Giea\es Fleming, his daughter, toi hei separate...
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...P. Div. LYNCH and LYNCH. Bancks v. OllertonENR 10 Ex. 168. Re OllertonENR 15 C. B. 796, 802. Bancks v. OllertonENR 10 Ex. 183. Perrot's CaseENR 2 Vent. 30. Mansfield's Case 12 Coke's Rep. 123. In the Matter of Anne ScholefieldENR 3 Bing. N. C. 293. Goodwright v. Moses 2 W. Bl. 1019. Teasdal......
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