Beaden v King
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1851 |
| Date | 01 January 1851 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 608
HIGH COURT OF CHANCERY
See Whidborne v. Ecclesiastical Commissioners, 1877, 7 Ch. D. 380.
[499] beaden v. king. June 4, 6, 7, 9, 10, 11, 26, 27, 30, July 1, 2, 7, 10, 1851; Jan. 27, 1852. [See WTiidborne v. Ecclesiastical Commissioners, 1877, 7 Ch. D. 380.] The Legislature intended, by the Acts for the redemption of the land tax, to authorise all such sales for that purpose to be made by ecclesiastical persons, with the consent thereby required, as could have been made for any purpose, with the like consent, before the passing of the restraining statutes; and before the restraining statutes a sale might have been made from a prebendary in his corporate character to a prebendary in his individual character. An objection to the validity of a sale under the Land Tax Eedemption Acts, upon the ground that the lands were not properly saleable, and, apart from any question of fraud, were not properly sold under the Acts, is a legal objection; and, there being no impediment to the trial of that question at law, a bill in equity on such a ground Cannot be supported. But the confirming statutes 54 Geo. 3, c. 173, and 57 Geo. 3, c. 100, have removed any objection to a sale and conveyance under the Land Tax Eedemption Acts, arising from the property so sold not having been originally saleable, or not having been properly sold, within the meaning and according to the directions of the Acts. If it were shewn that a purchase under the Land Tax Eedemption Acts had been effected by fraud the Court would rectify it, notwithstanding the confirming statutes, for a purchase so effected would not acquire validity from those statutes. The restriction expressed or implied in the words of sec. 25 of the confirming statute 57 Geo. 3, c. 100, "the titles derived under such sales," construed to mean that the Acts were not to operate upon titles anterior to the sales under those Acts, and not to limit the confirmation to the titles of sub-purchasers only. Under the statutes for the redemption of the land tax the Lords Commissioners are placed in the position of vendors; and therefore, if the trustees of a charity should purchase the property of the charity under those Acts, they would not be purchasing from themselves, but from the Lords Commissioners. The confirming statutes 54 Geo. 3, c. 173, and 57 Geo. 3, c. 100, remove any objection which might have been raised, on the ground of the party selling (under the Acts) being both vendor and purchaser. A power of sale given without restriction to a party having a limited interest only may well be held to import a negative upon the power by the same party to buy, for the power to sell is in the nature of a trust; but as the rule does not extend to prevent in all cases a party having a power to sell from becoming the purchaser; so neither, where there is a restriction upon the power of sale, is the party having the power to sell in all cases at liberty to become the purchaser. It must, in each ease, depend upon the circumstances under which, and the purposes for which, the power was given, and upon the nature and extent of the restrictions which are put upon the exercise of the power. In the proportion in which the power is restricted the danger incident to allowing the donee to purchase is diminished. The Court cannot impute to the Legislature in passing statutes confirming titles created by means of Parliamentary powers ignorance of the transactions which had taken place in exercise of such powers. A purchase obtained by fraud would be, in effect, no purchase, and could not acquire any validity by the confirming statutes. Effect of length of time elapsing between the transactions complained of and the 9 HARE, 800. BEADEN V. KING 609 institution of a suit for relief against them, where tie fiduciary character on which the title to relief is founded has de facto ceased for a long period, evidence has been lost, and it has become impossible to restore the Defendant to the same position as he would or might have been in if the suit had been promptly brought. The Plaintiff, the Prebendary of the Prebend of Wiveliscombe, in the Cathedral Church of Wells, filed his bill in May 1848 against the Rev. Walter King, Thomas Pares and Edward Dawson, and the Rev. C. E. E. Keene, for the purpose of setting aside a purchase of part of the prebendal estate, made in the year 1808 under the Land Tax Redemption Acts, by or in the name of John King, as trustee for the late Dr. King, who afterwards became Bishop of Eochester. Dr. King was, from 1794 until his death in 1827, the prebendary of the prebend. The Prebend of Wiveliscombe, before and at the time of the sale in question, comprised (amongst other property) the rectory or parsonage impropriate of Wiveliscombe, with the glebe lands, tithes and hereditaments belonging there-[500]-to, and also the manor of the Prebend of Wiveliscombe, with demesne lands and other lands held of the manor for lives by copy. The prebend was usually demised by the prebendaries for lives at an antient rent in consideration of fines. The lessee of the prebend was called the lord farmer, and had power to make grants for three lives of the lands held by copy. By an indenture of the 13th of June 1789 the Eev. P. G. Snow, the then prebendary, demised the prebend to Arthur Lord Fairford for the lives of William Earl of Dartmouth, Henry Lord Stowell and Arthur Lord Fairford, and the life of every and either of them longest living. By another indenture of the 3d of July 1804, and made between George Earl of Dartmouth, William Charles Earl of Albe-marle and Thomas Clement, of the first part; Henry Lord Stowell, of the second part; and John King (who was the brother of Dr. King, and an Under Secretary of State), of the third part; after recitals, by which it appeared that Henry Lord Stowell was the surviving cestui que vie in the lease, and that the lease had become vested in the parties thereto of the first part, with power to sell, with the consent of the said Henry Lord Stowell; the premises comprised in the lease were, in consideration of 7000 expressed to be paid by John King, conveyed to him, to hold for the life of the said Lord Stowell. By an indenture of the 4th of July 1804, and made between John King and Dr. King, John King surrendered the lease and the premises comprised therein to Dr. King. By an indenture, dated the 5th of July 1804, Dr. King demised the prebend to John King for the lives of Walker King, aged six years, Edward Dawson King, aged about five years, and James King, aged about three years, sons of Dr. King, and for the life of any and either of them longest living, at the old rent of 40. There is a memo-[501]-randum upon this lease of livery of seisin having been given on the 18th of July 1804. This lease was made to John King in trust for Dr. King. A joint memorial and statement, signed by Dr. King and John King, and dated the 1st of May 1806, was laid before the Lords Commissioners appointed under the Great Seal.(l) (1) "For regulating, directing, approving and confirming all such sales and contracts for sale which shall be made by bodies politic or corporate, or companies for the purpose of redeeming any land tax, &c." (39 Geo. 3, c. 21, s. 2.) The memorial or statement of 1806 was to the effect that Dr. King, intending to redeem the land tax charged on estates belonging to the prebend, amounting to 72, 6s. 3d. per annum, had agreed with John King to sell and convey to him, freed and discharged from land tax, for the price and on the terms after mentioned, the manor and copyhold tenements specified in the subjoined survey and valuation (being part of the estates of the prebend) and held by John King under a lease, for the lives of Walker King, aged seven, Edw. D. King, aged six, and James King, aged five years, dated the 5th of July 1804, the lease being in settlement. The annual value is stated at 388, Os. 8Jd., with a note that the whole is or may be granted by copy of court roll for five lives, as appears by the affidavit annexed. The reserved rent is stated at 3, 15s. 2d., and the purchase-money is thus made up:- V.-C. xin.-20 610 BEADEN v: KING 9 HARE, 502. [502] The purchase proposed by this memorial was not carried out; but in April 1808 another- joint memorial and statement, signed by Dr. King and John King, was laid before the same Lords Commissioners. This second memorial and statement appear to have been in the first instance intended to be prefaced by an affidavit to be made by John King-described as a trustee named by and on the part and behalf of Dr. King-to the effect that the lease of the estate mentioned in the memorial, of which estate he had agreed to purchase the fee-simple, was not limited or settled to any uses or trusts whatever, but that the said leasehold estate was the sole property of Dr. King; but this proposed affidavit was struck through in pencil, and this memorial was in fact prefaced by an affidavit of Dr. King, that the lease of the estate within mentioned (of which estate John King, lessee in trust for Dr. King, had agreed to purchase the fee-simple), was not limited or settled to any other uses or trusts whatever, but that the said leasehold estate was his own sole property. This second memorial and statement purported that Dr. King, intending to redeem a part of the land tax charged on estates belonging to the prebend, had agreed with John King to sell and convey to him, for the price and on the terms thereinafter mentioned, the manor, lands and tenements specified in the subjoined survey and valuation, being part of the estates of Dr. King, and then held by John King under a lease for the lives of Walker King, aged nine years and three-quarters, Edward D. King, eight years and three-quarters, and James King, six years and three-quarters, dated the 5th of July 1804(1) Eeserved rent, 25 years' purchase .... 93 19 2 Keversion after five lives, at 5J years' purchase...
To continue reading
Request your trial