Carter v Carter
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1857 |
| Date | 24 July 1857 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 1256
HIGH COURT OF CHANCERY
S. C. 27 L. J. Ch. 74; 4 Jur. (N. S.) 63. Disapproved, Pilcher v. Rawlins, 1870-72. L. R. 11 Eq. 53; L. R. 7 Ch. 259. See Young v. Young, 1867, L. R. 3 Eq. 805; Wilkinson v. Castle, 1868, 37 L. J. Ch. 469; Mumford v. Stohwasser, 1874, L. R. 18 Eq. 556; Bailey v. Barnes [1894], 1 Ch. 37; Taylor v. London and County Banking Company [1901], 2 Ch. 255.
Mortgage. Priority. Notice. Purchaser without. Estoppel. Possession of Deeds. Forfeiture on Alienation. Copyholds. Surrender by Attorney. Instances of Gross Negligence and the Contrary. Forfeiture. Admittance. Surrender.
[617] carter v. carter. July 7, 8, 24, 1857. [S. C. 27 L. J. Ch. 74; 4 Jur. (N. S.) 63. Disapproved, Pikher v. Eawlins, 1870-72. L. E. 11 Eq. 53; L. R. 7 Ch. 259. See Young v. Young, 1867, L. R. 3 Eq. 805 ; Wilkinson v. Castle, 1868, 37 L. J. Ch. 469; Mumford v. Stohwasser, 1874, L. R. 18 Eq. 556 ; Bailey v. Barnes [1894] , 1 Ch. 37 ; Taylor v. London and County Banking Company [1901], 2 Ch. 255.] Mortgage. Priority. Notice. Purchaser without. Estoppel. Possession of Deeds. Forfeiture on Alienation. Copyholds. Surrender by Attorney. Instances of Gross Negligence and the Contrary. Forfeiture. Admittance. Surrender. Review of the principal authorities on the protection afforded by this Court to a purchaser for valuable consideration without notice of a prior incumbrance, where he has got in the legal estate or obtained possession of the title-deeds. Semble, the earlier authorities on this subject have gone to a greater length than would be supported by more modern decisions. The authorities establish that a purchaser from a person in possession, purchasing without notice of any prior charge or trust, and obtaining a conveyance of the legal estate from a trustee of a satisfied term, or a mortgagee whose mortgage is satisfied, will be protected in this Court against a prior incumbrancer or cestui que trust, provided the party so conveying the legal estate have no notice of the prior trust or ineumbrance. 3K.&J.618. CARTER V. CARTER 1257 But it has never yet been decided that, where a party so conveying has notice of an express prior trust or incumbrance, the purchaser can protect himself therefrom by means of the legal estate. And, semble, such a decision would be contrary to the principles of this Court. J. C., believing himself and three others to be entitled under a will to four-eighths of certain freehold and copyhold estates, joined them in a mortgage of all his estate in the four-eighths to P. Subsequently it was discovered that the supposed last will had been revoked by a later will, by which all the estates were devised to J. C. for life, but subject to several annuities, with remainders over. Held, that the mortgage to P. passed J. C.'s life interest in the entire four-eighths, and was the first incumbrance on one-eighth of the copyholds to which P. had been admitted. But, Held, further, that, although P. had acquired the legal estate in this one-eighth for valuable consideration, as it were, by accident, and without notice that the former will had been revoked, so that his conscience was not affected by any of the trusts to which, by the subsequent will, the estate was subjected, he must hold subject to those trusts, since the will by which they were created was the very instrument upon which his title to the legal estate depended. And, Semble, the absence of fraud on the part of the mortgagor did not affect the question. Estoppel is always in some action or proceeding based on the deed in which the fact in question is recited. In a collateral action or proceeding there can be no estoppel. Therefore, although the mortgage to P. recited that the first will was the last will and was not revoked, and that under the first will three other persons, parties to the deed, were entitled to three-eighths, which they mortgaged to P. thereby, this did not prevent a prior mortgagee from shewing in a suit for administration of testator's estate that the recital was untrue, and that by the real last will the three-eighths in question were vested in J. C. for life. In order to postpone any party to a cause in respect of a prior mortgage or incumbrance, on the ground that you have got the title-deeds, it must be shewn that you have got them through gross negligence on the part of the person you seek to postpone; and the onus is on you of shewing this. To allow title-deeds to remain with a party who, besides having a beneficial interest in the property, is also a trustee for others, not gross negligence; for, guh trustee, he is the right person to hold them. To allow them to remain with one of several tenants in common after he has mortgaged! his share not gross negligence. Semble. Three other persons named in the first will as tenants in common, believing themselves entitled under that will each to one-eighth, executed mortgages of their supposed shares and all their estates and interests in tbe testator's estates. They had, in fact, under the subsequent will annuities merely, charged on the testator's estates, and given to them for life, or until they should do any act which but for that condition would have the effect of alienation. Held, that the annuities ceased from the dates of such mortgages respectively, notwithstanding the annuitants were then in ignorance of the existence of the will restraining alienation. But, semble, had such mortgages been of all their shares under the first will, and all their estates and interests in the premises thereby mortgaged, secus. Where copyholds are surrendered by attorney, and the attorney exceeds his power, the admittance is cut down to the limits of the surrender authorised by the power. Observations on Faussett v. Carpenter (3 Dow & Cl. 232). By a will, dated the 12th of January 1846, and which for many years after his. death was supposed to be his last will, Edwin Garter gave and bequeathed all his freehold, copyhold, leasehold and residuary personal estate unto his brothers and sisters, and the survivors or survivor of them: the proceeds of the rentals to be equally divided among them, share and share alike. [618] The testator died in January 1847. He left eight brothers and sisters living at his death, the Defendant, John Carter the younger, being one. V.-C. xiv.-40* 1258 CARTER V. CARTER 3K. &J.619. . The supposed will was proved and acted upon for several years after the testator's death, all parties interested under it believing it to be the last will of the testator. [619] Several years afterwards a later will was discovered, which bore date the 25th of April 1846, and which eventually proved to be the real last will of the testator. By this last-mentipned will the testator, after directing payment of his debts and funeral and testamentary expenses, and bequeathing certain pecuniary legacies, gave, devised and bequeathed unto his brother, the Defendant, John Carter the younger, and to two other persons (who by deed disclaimed), all his freehold, copyhold and leasehold lands and hereditaments, and certain debts due on bond, to hold the same unto and to the use of the said devisees, their heirs, executors, administrators and assigns for ever, upon trust to pay to his mother an annuity of 400 during her life, and to pay to each of his brothers, Edward, George and Charles, an annuity of 100 during his life, or until he should take the benefit of any Act for the Relief of Insolvent Debtors, or become bankrupt, or do any act which, but for that condition, would have the effect of giving the benefit of his annuity to any other person; and in the event of either of such last-mentioned events happening, then his annuity should from thenceforth cease and be no longer payable; and to pay to each of his sisters, Eliza, Prances and Louisa, an annuity of 100 during her life. And after payment of the said several annuities, and subject thereto, upon further trust for the Defendant, John Carter the younger, during his life ; and, after his decease, subject to the payment of the said several annuities, or such of them as might be then subsisting, and to certain trusts for the benefit of the children of the said John Carter the younger (who had no issue), upon trust for such of his said brothers, Edward, George and Charles, and his said sisters, as might then be living, and the survivors and survivor of them, for life ; but, as to his said brothers, subject to the same restrictions respecting bankruptcy and insolvency, and against alienation, as he had thereinbefore made and provided for [620] with reference to the aforesaid annuities bequeathed to them respectively ; and, after the decease of the survivor, upon certain trusts for the benefit of the children of his last-mentioned brothers and sisters. A suit was instituted by two of the testator's sisters and the infant children of his third sister for administration of his estate; and a decree having been made directing the usual inquiries as to incumbrances by the parties interested under the will, the Chief Clerk certified that the Defendant, John Carter the younger, previous to his bankruptcy, incumbered his life interest under the testator's will as follows:- By an indenture, dated the 1st of June 1850, he conveyed, assigned and covenanted to surrender all his estate and interest in the freehold, copyhold and leasehold estates in the decree mentioned to the Defendant, John Carter the elder, by way of mortgage, to secure 3110. By an indenture, dated the 28th of June 1852, he conveyed his interest in two undivided eighth parts or shares of such of the freehold estate as is therein comprised to W. P. Chilcott and A. Chilcott, by way of mortgage, to secure 1200. By an indenture, dated the 10th of September 1852, he conveyed, assigned and covenanted to surrender his interest in four undivided eighth parts or shares of certain parts of the estate to James Prosser, since deceased, by way of...
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