Between Robert Knight since deceased and His Executors by amendment, and Richard Tomkinson, Plaintiffs; and George Bowyer, John Thomas Groves and Emma, his Wife, Charles Pugh, The Rev George Frazer Mathews and Ann Martha, his Wife, late Ann Martha Bridger, Edward Kynaston Bridger, Wilson Lomer, Charles Bridger, Charles King, Alexander Donovan, Samuel Sturgis, William Whitfield, Harriett Huntingford (since dismissed), John Samuel Bowles, George Warner, The Rev. John Tunnard, Clerk, John Taylor, John Matthews, and Sir George Bowyer, Baronet, Defedants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1857 |
| Date | 01 January 1857 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 239
ROLLS COURT
S. C. on appeal, 2 De G. & J. 421; 44 E. R. 1053; 27 L. J. Ch. 520; 4 Jur. (N. S.), 569; 6 W. R. 565. See Bagnall v. Carlton 1877, 6 Ch. D. 400. Followed, Hunt v. Luck [1901], 1 Ch. 45 [1902], 1 Ch. 428.
[609] Between robert knight (since deceased) and his executors (by amendment), and richard tomkinson, Plaintiffs; and george Bow yer, john thomas groves and emma, his Wife, charles pugh, the rev. george fhazer mathews and ann martha, his Wife, late ann martha bridger, edward kynaston bridger, wilson lomer, charles bridger, charles king, alexander donovan, samuel sturgis, william whitfield, harriett huntingford (since dismissed), john samuel bowles, george warner, the rev. john tunnard, Clerk, john taylor, john matthews, and sir george bowyer, Baronet, Defendants. May 1, 2, 4, 5, 6, June 8, July 1, 1857. [S. C. on appeal, 2 De G. & J. 421; 44 E. R. 1053; 27 L. J. Ch. 520; 4 Jur. (N. S.) 569; 6 W. R. 565. See Bagnall v. Carlton, 1877, 6 Ch. D. 400. Followed, Hunt v. Luck [1901], 1 Ch. 45 [1902], 1 Ch. 428.] An annuity was granted free of all taxes " except the property tax," and the deed contained a proviso, that in case the income tax should be reduced, the reduction 240 KNIGHT V. BOWYER 28BEAV.610. should enure to the benefit of the grantor. This proviso was omitted in the memorial. Held, that the memorial was sufficient. If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties. Annuitants upon an estate, relating to which and to the incumbrances on which suits were pending in this Court, sold their interests, the purchaser and the annuitants instituted this suit to enforce their claim. Held, that this transaction was free from champerty. When the owner of an estate contracts for valuable consideration with his mortgagees to put a man in possession, and directs him to apply the rents in payment of the interest on the first mortgage, and then the interest on the second, the mortgagor cannot afterwards urge that the Statute of Limitations excludes the second mortgagee, because the rents were no more than sufficient to pay the first, and the second mortgagee had, for more than twenty years, received nothing. In June 1814 Sir G. B. granted six annuities, arid executed a receivership and trust deed to secure them. By the former, the receivers were to receive the rents of estate, "in trust" to pay the six annuities, and also other annuities thereafter to be granted; and by the trust deed, the estate was conveyed to a trustee to secure the same annuities. In August following, Sir G. B. granted three other annuities, and he executed a deed of direction, requiring the receivers and the trustee to pay all the nine annuities. Notice was given to the receivers and trustee. The receivers remained in possession, but the rents were insufficient, and for forty years the three annuitants received nothing. They then filed a bill to enforce their claims. Held, that they were not barred by the Statute of Limitations. Sir G. B., being tenant for life in possession, and also absolutely entitled in remainder, after the death of his mother, to a sum of 9560, which was the first charge on the estate, granted an annuity secured on his life-estate, and by the grant he covenanted against all charges. After the death of his mother, held, as against Sir G. B., that the annuity had priority ovor the interest of the 9560, but that it was not a charge on the corpus of that fund, for interest paid on it after the death of his mother, to the detriment of the annuitant; held, also, that the same equity affected both a purchaser from Sir George with notice of the annuity and also volunteers under such purchaser. The rule, that a purchaser has constructive notice of the rights of the tenant, is not limited to the terre-tenaut, who is in the actual occupation, but it extends also to the person who is known to receive the rents from the occupier of the land. The purchaser of a charge upon an estate had notice that the rents were received by A. B., and not by the owner of the estate. Held, that the notice that the tenants paid their rents to a person other than the owner, was notice of the instrument by which they were compelled so to pay them, and of the rights of all parties thereunder. The present suit arose out of the complicated matters which have several times been before the Court, in the suits of Hele v. Lord Bexley (reported 11 Beav. 537; 15 Beav. 340; 17 Beav. 14, and 20 Beav. 127). The length of the case renders it convenient to adopt the careful statement of the facts contained in the [610] judgment of the Court, and which, with some few additions from the pleadings, was as follows :- Sir George Bowyer, the Defendant, was, in and prior to the year 1814, equitable tenant for life, without impeachment for waste, of the Radley estate, subject to four incumbrances affecting it. These incumbrances were, first, a mortgage for 9560, which waa vested in Lady Henrietta Bowyer (since deceased), for her life, with the absolute interest in reversion in Sir George Bowyer. Secondly, 7125, due to the four brothers and sisters of Sir George Bowyer (being the residue of [611] a charge of 10,000). Thirdly, an annuity of 30 to an annuitant (since deceased). And fourthly and lastly, an annuity of 250 to Lady Anne Bowyer, who was also since dead. While Sir George was so entitled, a person named Donovan obtained judgment against him in respect of securities for three annuities, the consideration for which was 7758; these were entered up in March 1814. 33BEAV. 6H. KNIGHT V. BOWYER 241 On the 25th of June 1814 Sir George Bowyer, iu consideration .of 15,994, granted six annuities to six persons, who were called " the six annuitants." To secure them, he, on the 28th of June 1814, executed a deed, to which the six annuitants were parties, by which he appointed Ballachy and Ralfe receivers of the Radley estate, for the purpose of paying these annuities. This deed, which, in the argument, was referred to as " the receivership deed," was made between Sir George Bowyer of the first part, the six annuitants of the second, third, fourth, fifth, sixth and seventh parts, and Ballachy and Ralfe of the eighth part. It recited the annuities ; it then recited an agreement, that it should be lawful for Sir George Bowyer, by mortgage or grant of annuities, to raise any further sum, not exceeding in the whole (including the considerations for the six annuities already granted, and including also any judgments which, at the time of such further sums being raised, might be available against the said hereditaments), the sum of 20,000, and that such further grantees of annuities or mortgages should stand and be entitled, pari passu, with the six. The indenture then recited the six annuities, and was witnessed that, in consideration of the sum paid, Sir George Bowyer, with the consent of the six annuitants, appointed Ballachy and Ralfe, and the survivor of them, his receivers, agents [612] and attorneys, in the name of him Sir George Bowyer to ask, demand, collect and receive all the rents of the estate charged with the payment of the annuities, and take all lawful steps, by action, distress or otherwise, to obtain payment thereof; and he directed the tenants to pay to Ballachy and Ralfe, and declared that their receipts should be good discharges to the tenants. The indenture then went on to declare that all the rents and profits so to be received by Ballachy and Ralfe should be applied upon and for the trusts, intents and purposes after mentioned, that is to say, upon trust first to pay taxes and rates, in the next place to pay the interest on the 10,000 (this was the charge of which, as already mentioned, 7125 alone remained charged on this estate), the two annuities of 250 and 30 (both of which were now extinct) (omitting therefore the interest on the 9,560. See post, p. 643), and in the next place, to pay to the six annuitants, and such other grantees of annuities and mortgagees as might advance any further sum or sums of money on the security of the said hereditaments, pursuant to the terms of the proviso already mentioned, all their annuities pari passu; and lastly, that they should pay to Sir George Bowyer, or his assigns, or to such person or persons as he or they should order or direct, the clear residue of the rents and profits, and that out of such residue should be deducted a commission of 5 per cent, on the gross amount received, and also the costs and expenses to which the receivers might be put. The indenture contained a covenant by Sir George Bowyer, that he would not revoke the powers and authorities therein contained without the consent of the six annuitants, and further, that if Ballachy and Ralfe, or either of them, should die or refuse to become incapable of acting, Sir George Bowyer would appoint such other person or persons in their place, as the six annuitants, [613] or the major part of them, should appoint, and in case of refusal or neglect by Sir George Bowyer to make any appointment, then that the six annuitants might themselves appoint the persons to receive. Upon the same day (the 28th of June 1814), Sir George Bowyer executed another deed, called "the trust...
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