Buxton v Lister and Cooper
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1746 |
| Date | 15 July 1746 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 1020
HIGH COURT OF CHANCERY
Observed upon, Pollard v. Clayton, 1855, 1 K. & J. 462.
Case 126.-smith versus cooke, July 14.1746. S. who was tenant in tail of the estate in question, lets a lease of it in 1741 to the plaintiff his son, who was to enjoy it at the rent of 25 per ann.; the father was an insolvent debtor, and in October 1743, was discharged under 16 Cfeo. 2 : the bill is brought against the defendant for an account of profits, and of timber felled : The plaintiffs intitled to such account from the time only of the father's discharge, for they could have no right till their title to the estate accrued. The father of the defendant, who was tenant in tail of the estate in question,(1) lets a lease of it in 1741 to his son, who was to enjoy it at the rent of 25 per annum, and who covenanted to maintain his mother, and to pay the land tax. The father being an insolvent debtor, was cited by one of his creditors, to deliver in a schedule of his estate and effects a-ccording to the form of the act of parliament in the 16th year of George the Second, and in October 1743, the father of the defendant was discharged under this act. The bill is brought against the defendant, for an account of profits, and of timber felled. Lord Chancellor. I am of opinion the plaintiffs are intitled to it from the time of the discharge of the father, the insolvent debtor, but not before, for they could have no right till their title to the estate accrued, which was not till October 1743. [379] As to the lease in 1741, no body can say it was made fraudulently, either upon the act of parliament, or against this particular set of creditors ; for the making the son covenant to pay the land-tax is not an unreasonable thing, nor was the covenant so to maintain the mother, who appears to be a lunatick, and wanting such care and support; and therefore upon the foot of the father's contract, I am of opinion, the plaintiffs are not intitled to an account from the time the son entered into possession, by virtue of this lease. But the material question is, Whether this estate vested in the assignee of the insolvent debtor by virtue of the compulsory clause in this act. The defendant insisted, that as his father was cited in by a creditor, and did not himself claim the benefit of the act, the estate-tall did not vest in the assignee. I am of opinion it did vest in the assignee equally as if the insolvent debtor had...
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