Browne and Another v Sir Robert Price Baronet
| Jurisdiction | England & Wales |
| Judgment Date | 25 June 1858 |
| Date | 25 June 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 140 E.R. 1225
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 27 L. J. C. P. 290; 4 Jur. N. S. 882; 6 W. R. 721.
[598] browne and another v. sir egbert priced Baronet. June ,25th, 1858. 63o.;k. : ' [S. C. 27,L. J. 0. P.. 290; 4 Jur.N. S. 882; 6 W.E. 721.] ^ The defendant by deed of mortgage, reciting a loan of-12,5001. by the plaintiffs to the defendant upon the security of a demise of the- defendant's life-interest in certain property and a conveyance of a reversion in fee, and also by a policy" for 13,0001. in the Norwich' Union Life-Assurance-Office, payable'within three months after the G. P. xviii.-39* 1226 BROWNE V. PRICE 4 C. B. (N, S.) 599. death of the defendant " in case he should leave issue male by his then present wife living at his death,"-the defendant covenanted that he would "from time to time . during his natural life, and so long as the said sum of 12,5001.; or any part thereof, or any interest for the same, should remain due and owing on the said security, continue and keep on foot the benefit of the said recited policy of assurance, and pay or cause to be paid the yearly and other premiums, &e., and would not permit or suffer or do any act whereby the said policy might be forfeited or vacated," &c. - The deed also contained a proviso, that, in case the defendant .should neglect to pay the premiums, it should be lawful for the plaintiffs to pay the same, and to charge the payments so made upon the hereditaments thereby charged.: The deed contained no covenant by the defendant to re-pay the ^plaintiffs the susebs they might pay to keep the policy alive.-The defendant paid the interest and ^premiums regularly down to the year 1848,. but since that.time (there being then no possibility of his having any issue by his then wife) he had discontinued to payithe premiums. The annual premiums accruing up to the present-time were placed to the credit of the office in an account kept by them, called their "Policy Premium Account," and regularly debited year by year by the office in the mortgage-account of the defendant, according to the practice of the office,-but the defendant had no notice of this course of dealing.-The plaintiffs having brought an action against the defendant upon his covenant for payment of the premiums, the defendant pleaded payment of Is. into court.-Upon a special case stating these facts,-Held, that, assuming the plaintiffs to have paid the premiums, they were not entitled to- more than nominal damages. -But, semble, that the course of dealing stated did not amount to evidence that they had paid them. , This action came on for trial at the sittings at Westminster after last Hilary Term, when a verdict was entered for the plaintiffs, by consent, subject to the opinion of the .court upon the following case:- The first count of the declaration stated that the defendant by deed of mortgage, -reciting that the plaintiffs and Edmond Wodehouse and Edward Wenman Martin (now respectively deceased) had, upon his application and request, agreed to advance and lend him the sum of 12,5001. upon the terms that the re-payment thereof, with interest for the same at the rate of 51. per cent, per annum, but reducible as thereinafter mentioned, should be secured to them by a demise of the messuages, farms, lands, and hereditaments therein described for the term of ninety-nine years, if the defendant should so long live, and by a grant and conveyance of the remainder or reversion in fee of and in [599] the same hereditaments limited to him by a certain indenture of settlement therein mentioned, and also by the policy of assurance hereinafter mentioned, and also by the trusts, powers, provisoes, covenants, and agreements thereinafter contained; and also reciting, that, by a policy or instrument of assurance, under the hands and seals of three of the directors of the Norwich Union Life-Assurance Society, and numbered 22,109, and bearing date the 31st of May, 1841, the sum of 13,0001. had been assured to the plaintiffs and the said Edmond Wodehouse and Edward Wenman Martin, payable within three months after satisfactory proof of the death of the defendant, in case he should leave issue male by his then present wife living at his death, if the annual premium or sum of 2601. therein mentioned should be duly paid at or within the time therein appointed, and upon other the terms and conditions in the said policy expressed,-the defendant covenanted with the plaintiffs and the said Edmond Wodehouse and Edward Wenman Martin, that he would from time to time during his natural life, and so long as the said sum of 12,5001., or any part thereof, or any interest for the same, should remain due and owing on the said security, continue and keep on foot the benefit of the recited policy of assurance, and pay or cause to be paid the yearly and other premiums, or any extra premium or sum which ought to be paid, for the purpose of continuing and keeping on foot the benefit thereof, two days at least in every year before the same should become due, and would deliver the receipt or receipts for the same respectively, within five days after payment thereof, to them the plaintiffs and the said Edmond Wodehouse and Edward Wenman Martin, and would not permit or suffer or do any act_ whereby the said policy might be forfeited or vacated by reason or means of his neglect, omission, commission, or default, nor do [600] or suffer or cause to be done any act, deed, matter, or thing-whatsoever, whereby or in consequence of which any increased rate of premium should 4 C. B;(N. S.)601. BROWNE V, PRICE 1227 become payable upon or in respect of ,the said policy, or whereby or in consequence whereof the same should be released or discharged, or the benefit thereof cease, determine, or be lessened, or the right of the said plaintiffs and Edmond Wodehouse and Edward Martin to,receive;the said sum of 13,0001. thereby secured be in any way affected, impeached, interrupted, or incumbered; And also that, by another deed of mortgage,-reciting that the defendant had occasion for, and, upon his application and request, the plaintiffs and the said Edmond Wodehouse :and Edward Wenman Martin had agreed to advance and lend him, the further sum of 75001., upon the terms that the re-payment thereof, with interest for the same.at the rate of 51, per cent, per annum, but reducible-as thereinafter mentioned, should be secured to them by a further charge upon the hereditaments comprised in the deed in the first count mentioned, and also by the policy of assurance hereinafter mentioned; and reciting, that, by a policy or instrument of assurance, under the hands and seals of three of the directors of the Norwich Union Life-Assurance : Society, No. 22.401, bearing date the 7th of February, 1842, the sum of 80001. had been assured to the plaintiffs and the said Edmond Wodehouse and Edward Wenman Martin, payable within three months after satisfactory proof of -the death of the defendant, in case he should leave issue male by his then present wife living at his death, if the annual premium or sum of 1601, therein mentioned should be duly paid at or within the time therein appointed, and upon other the terms and conditions in the said policy expressed,-the defendant covenanted with the plaintiffs and the said Edmond Wodehouse and Edward Wenman Martin that [601] he would from time to time during his .natural life, and. so; long as the said sum of 75001., or any part thereof, or any interest for the same,.should remain due and owing upon the now reciting security, continue and keep on foot the benefit of the last-mentioned policy of assurance, and pay or cause to be paid the yearly and other premiums or any extra premium or sum which ought to be paid for the purpose of continuing and keeping on foot the benefit thereof, two days at least in every year before the same should become due, and should and would deliver the receipt or receipts for the same respectively, within five days after payment thereof...
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