Bellamy v Sabine

JurisdictionEngland & Wales
Judgment Date01 August 1857
Date01 August 1857
CourtHigh Court of Chancery

English Reports Citation: 44 E.R. 842



S. C. 26 L. J. Ch. 797; 3 Jur. (N. S.), 943; 6 W. R. 1. For previous proceedings, see 2 Ph. 425; 41 E. R. 1007. See Plant v. Pearman, 1872, 41 L. J. Q. B. 172; Price v. Price, 1887, 35 Ch. D. 302.

[566] bellamy v. sabine. Before the Lord Chancellor Lord Cranworth and the - a a f . f f. i Lords Justices. May 30, June 1, 2, August 1, 1857. . C. 26 L. J. Ch. 797 ; 3 Jur. (N. S.), 943 ; G W. R. 1. For previous proceedings, see 2 Ph. 425; 41 E. R. 1007. See Plant v. Pearman, 1872, 41 L. J. Q. B. 172; The doctrine as to the effect of Us pendens on the title of an alienee is not founded on any principles of Courts of Equity with regard to notice, but on the ground that it is necessary to the administration of justice that the decision of the Court in a suit should be binding, not only on the litigant parties, but on those who derive title from them pendente lite, whether with notice of the suit or not. A person who, without notice of a suit, purchases from one of the Defendants property which is the subject of it, is not in consequence of the pendency of the suit affected by an equitable title of another Defendant, which appears on the face of the proceedings, but of which he has no notice and to which it is not necessary for any of the purposes of the suit to give effect. F. B., the heir at law of E. B., filed a bill against J. B. and S. to impeach two agreements, one of which was for the sale of a life-estate by J. B. to E. B., and by the other of which E. B. had agreed to sell to S. the entire fee-simple, which accordingly was conveyed to S. by J. B. and E. B. After the institution of the suit S. mortgaged to B. and G. The bill was dismissed as to the first agreement, but the second was set aside and a decree made for a reconveyance by S. to F. B. on 1DEQ.*J.56T. BELLAMY V. SABINB 843 the terms of F. B. making certain payments to S. It was afterwards decided in another suit on the state of facts which appeared in the first suit, that J. B. was entitled to a lien on the estate as against F. B. and S. for monies payable under the first agreement. Held, that B. and G. not having when they took their mortgage any notice of the first suit, or of the circumstances on which J. B.'s claim was founded, were not affected on the ground of the pendency of the first suit by the claim of J. B.; though, owing to the pendency of that suit, they were entitled as against F. B. to no more than S. was entitled to. This was an appeal by two of the Defendants in the suit of John Bellamy v. Sabine, who will be referred to as Brickenden and Good, from an order invalidating a mort- f ige held by them, on the ground that they were affected with notice of John ellamy's title, by reason of the pendency of an earlier suit as to the same estate, in which John Bellamy was a Defendant, and in which that title appeared. The facts of the case were as follows :-In 1827 John Bellamy, the Plaintiff in the present suit was entitled to real estates at Corscombe and South Perrott for life, with remainder to his son Edward Bellamy in tail, and was seised in fee of an estate at Cheddington. The South Perrott estate consisted of two [567] parts, referred to in the judgment of the Lord Chancellor as "the Manor farm " and " Villabent." By a deed elated 8th June 1827, made between John Bellamy and Edward Bellamy, it was agreed that the Corscombe, South Perrott and Cheddington estates should be assured to Edward Bellamy for an estate of fee-simple in possession, and that Edward Bellamy should pay certain debts of John Bellamy, pay certain sums for the benefit of John Bellamy's younger children, secure to him an annuity of £210 for his life, and demise to him the Cheddington property for a term of years cleterminable on his death, and pay certain other annuities. By articles of agreement dated 21st June 1827, indorsed on the above deed, and made between Edward Bellamy and Thomas Sabine, Edward Bellamy in consideration of Sabine's undertaking to pay the debts, sums of money and annuities which Edward Bellamy had by the deed undertaken to pay, and for other considerations agreed to convey all the above properties to Sabine, subject to the agreement for the lease of the Cheddington property to John Bellamy. In pursuance of these agreements, the Corscombe and South Perrott estates were, by indentures of lease and release of the 15th and 16th November 1827, and by òcommon recoveries suffered in pursuance thereof, limited to the common uses to bar òdower in favour of Sabine. On 4th August 1828, Edward Bellamy died intestate, leaving his brother Francis Bellamy his heir at law. On 23d February 1829, Sabine mortgaged the Corscombe estate to Davis to secure £3000; and on 13th July 1830, he mortgaged the Manor farm to Thomas [568] Brickenden to secure a like sum. No question arose as to either of these mortgages, which were admitted to be the first incumbrances on the estates comprised in them. On 26th July 1830, Francis Bellamy, who before the recoveries were suffered was tenant in tail of the Corscombe and South Perrott estates in remainder immediately expectant on the estate tail of Edward Bellamy, and was also his heir at law, filed his bill against Sabine, John Bellamy and others impeaching the agreements of 1827 as fraudulent, and praying that they, and all deeds executed in pursuance of them, might be cancelled; and that, if necessary, the Corscombe and South Perrott estates might be reconveyed to the uses to which they originally stood limited. By indentures of lease and release of the 14th and 15th November 1833, Sabine mortgaged the South Perrott estate (subject as to the Manor farm to Brickeuclen's mortgage) to Brickenden and Good to secure £800. This was the mortgage as to which the present question arose, and it was taken by Brickenden and Good without any notice of the agreement of 8th June 1827, or of the pendency of Francis Bellamy's suit, to which they were never made parties. Good afterwards died, and at the time when the present appeal was heard, Brickenden was solely entitled to this mortgage in trust for John Batten ; but as nothing turned on this alteration of ownership, it is thought most conducive to clearness to speak throughout of the owners of this mortgage as " Brickenden and Good." 844 BELLAMY V. SABINE 1DE0. & J. 569. The suit of Francis Bellamy v. Sabine afterwards came on to be heard before Lord Cottenham, then Master of the Rolls, and by his decree dated the 8th of May 1835, the bill was dismissed so far as it sought to have the agreement of the 8th of June 1827, and all convey-[669]-ances executed in pursuance of that agreement, delivered, up to be cancelled ; but it was declared that the agreement of 21st June 1827 was fraudulent and ought to be cancelled, and that the conveyances to Sabine in pursuance of that agreement were also fraudulent and ought to be cancelled. Accounts were directed of what Sabine had paid upon the footing of this agreement, and of what he had laid out in lasting improvements on the property. An account of rents arid profits was directed against him as a mortgagee in possession, and it was ordered that on Francis Bellamy paying to Sabine the balance which should bo found due to him on the result of the accounts, Sabine should convey to Francis Bellamy, or as he should appoint, the South Perrott and Corscombe estates, subject to the mortgages subsisting thereon at the date of the agreement of 21st June 1827, but free from all incumbrances created by himself. By indenture dated 18th May 1835, an outstanding term created in 1824 in the South Perrott estate was assigned to a trustee for Brickenden and Brickenden and Good, for better securing the sums due to them on their respective mortgages. By indenture dated 20th November 1835, made between Sabine of the first part, Davis of the second part, Brickenden of the third part, Brickenden and Good of the fourth part, and John Batten and Joseph Stone of the fifth part, Sabine assigned to Batten and...

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