Between James Whitbread and Mary, his Wife, Plaintiffs; and Mapson Thomas Smith, Macdonald Steele, Elizabeth Williams and William Henry Williams, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 11 June 1853 |
| Date | 11 June 1853 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 555
HIGH COURT OF CHANCERY
S. C. on appeal, 3 De G. M. & G. 727; 43 E. R. 286.
Deeds, Construction of.
Between james whitbread and mary, his Wife, Plaintiffs; and mapson thomas smith, macdonald steele, elizabeth williams and william henry williams, Defendants. April 20, June 11, 1853. [S. C. on appeal, 3 De G. M. & G. 727; 43 E. E. 286.] Deeds, Construction of. Real estate was settled on the husband for life; remainder to his wife for life; remainder to the heirs of the body of the wife; remainder to the right heirs of. the husband; the husband and wife barred the wife's estate tail; and by that and other deeds it was settled to such uses as the husband should appoint. He appointed, by a deed of July 1817, to such uses as "he and his wife should jointly appoint, and, in default, to himself for life; remainder to his wife for life; remainder to his son in fee." The husband and wife made several mortgages, all except one limiting the equity of redemption upon or consistently with the uses of the deed of 1817. In 1832 they made, under the power in the deed of 1817, another mortgage which limited the equity of redemption to the husband and wife, " their heirs or assigns, or to such other persons, &c., as they should direct;" and by a deed of even date certain terms were assigned to attend the inheritance according to the uses of the other deed of even date. Held, that the deed of 1832 was intended to vary the limitation of the equity of redemption, and defeated the limitation of the fee of the deed of 1817. The Plaintiffs in this case claimed as purchasers, under a deed, dated the 13th of April 1850, from W. Eees, the son of W. Bees, who died in September 1849. The Defendants, M. T. Smith and M'Donald Steele, were the devisees in trust of the will 556 WHITBREAD V. SMITH 1 DBEWRY. 532. of Thomas Williams; Elizabeth Williams was his executrix; and W. H.Williams, his sou, and beneficial devisee. The following is a statement of the substance of the material deeds and facts on which the question .in the cause turned. By an indenture of the 28th May 1794, and a fine then levied, certain real estate was limited to William Eees [532] the elder, and Mary, his wife, and their heirs, until the then intended marriage of their son with Anne Harris; with remainder to the said William Eees the elder and Mary, his wife, for their lives and the life of the survivor; with remainder to Warren Jane, for a term of 100 years, upon certain trusts which never arose; with remainder to William Eees the younger for life; with remainder to Anne Harris for life; with remainder to the heirs of the body of Anne Harris by William Eees the younger; with remainder to the right heirs of William Eees the younger. On the 28th April 1808 William Eees the elder died, and on the 15th May 1813 Mary Eees died. By indenture of 2d June 1815, and a recovery then suffered, the estate tail of Anne Harris (then Eees), was barred, and the estate was limited .to Baker and Price for a term of 1000 years, upon trust to raise £500; with remainder to William Eees for life; with remainder to Anne, his wife, for life; with remainder to Baker and Price and their heirs, during their lives, &c., as trustees, to preserve, &c.; with remainder to Gardner and Baker for a term of 1000 years, to raise £600 for the children of William Eees by Anne; with remainder to the right heirs of the survivor of William and Anne Eees; and this indenture contained a reservation of powers of revocation and new appointment in Eees and his wife. On the 27th March 1815 Baker and Price, as trustees of the first term of 1000 years, mortgaged to one Ho well to secure £400. * By indenture of 30th June 1817 Eees and his wife revoked the uses in the deed of the 2d of January 1815, save as to the first term of 1000 years, and the [533] estate was thereby limited, subject to the said term, to such uses, &e., as William Eees alone should by deed or will appoint. On the next day, 1st July 1817, William Eees by deed-poll appointed the estate to such uses, &c., as he and his wife should jointly appoint, and, in default of appointment, to himself for life, with remainder to his wife for life, with remainder to his son, William Bees, in fee, charged with £600. On the 2d July 1817 William Eees and his wife appointed the estate to Matthews by way of mortgage for a term of 700 years, to secure £250, and provision was thereby made for "cesser of the term," on repayment of the money. On the 27th August 1817 Howell's mortgage was assigned to one Eichards, and William Eees and his wife appointed the estate to him by way of further mortgage for a term of 800 years, to secure in all £600; this deed also provided for the " cesser of the term " on repayment being made. On the 10th July 1818 Matthews assigned his mortgage to Waters. On the 29th July 1818 Eichards and Waters assigned their mortgages to Jenkins, and William Eees and his wife appointed the estate to him, to secure altogether £1000; the proviso for reconveyance was " unto such persons, for such estates and such manner as the said William Eees and Anne his wife should appoint, and in default of appointment to attend the inheritance." [534] On the 22d September 1820 Jenkins's mortgage was assigned'to Morgan, and William Eees and his wife appointed the estate to Morgan in fee, to secure in...
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Whitbread v Smith
...existed. The rule of law, on which we are quite agreed with the Vice-Chancellor, is, as stated by him in his judgment in this case (1 Drewry, 531, see p. 544), "that if husband and wife concur in mortgaging the wife's estate, or an estate in which she has any interest, whether it be a right......
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Re The Estate of John Keily The Elder, Owner; ex parte John Keily The Younger, Petitioner
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