Casamajor v Strode
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1818 |
| Date | 01 January 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 649
HIGH COURT OF CHANCERY
S. C. 19 Ves. 390, n.; 1 Wils. Ch. 428; Jacob. 630. See Spencer v. Harrison, 1879, 5 C. P. D. 103; In re Searle, [1900] 2 Ch. 833.
L347] casama.jor v. strode. Dec. 18, 1818; May 19, 20, 1810. [S. 0. 19 Vea. 390, n.; 1 Wils. Ch. 428; Jacob. 630. See Spencer v. Harrison, 1879, 5 C. P. D. 103 ; In re Searle, [1900] 2 Oh. 833.] Estates being sold by auction in lots under conditions, one of which expressed that they were subject to the perpetual payment of 120 a-year to the curate of N., but that the same, and the perpetual annual payment of 20 to the hospital of C!., were in future to be charged upon, and paid by, the purchaser of lot 1 only ; the purchasers of the other lots are entitled, not to an absolute exoneration, but to an indemnity from the purchaser of lot 1. Nature of the indemnity which they may require. In pursuance of a decree in this cause, certain estates were sold by auction, on the 24th and 25th of October 1811, in forty-seven lots. The eighth condition of sale was expressed in these words : " The estates comprised in the foregoing particular, are subject to the perpetual payment of 120 a-year, to the curate or chaplain of Northaw; but the same, and the perpetual annual payment of 20 to the hospital of Cheynes, in Buckinghamshire, are in future to be charged upon, and paid by, the purchaser of lot 1 only." Lot 1 was purchased by Patrick Thomson ; and five other lots, by /. H. P. Schneider. On the llth of November 1815, a reference was directed to the Master, to inquire whether a good title could be made to the lots purchased by Schneider; and on the 2Gth of July 1816, by an order to which Schneider was no party, a further reference was directed to the Master, to approve a deed of indemnity from Thomson to the purchasers of the other lots, against the annual payments of 120 and 20. On the 7th of May 1817, the Master (having on the 3d of March certified his approbation of a deed of indemnity) reported, that a good title could be made to the lots purchased by Schneider. To this report Schneider excepted, insisting that the Master ought to have certified that a good title could not be made. The deed of indemnity approved by the master (an indenture between Thomson of the first part; Casamajor and Fowler, trustees for sale of the estates, of the second part; all the purchasers at the sale, except Thomson, of the third part; and P. A. Hanrott and J. Jones of the fourth part), after reciting the title of the vendors, the particu-[348]-lars of the annual payments, amounting to 20 and 120, the decree and sale, the conveyance of lot 1 to Thomson, and the subsequent proceedings, witnessed, that Thomson, at the request of the trustees for sale, charged all the premises comprised in lot 1, with the payment of the annual sums, amounting to 20 and 120, in exoneration of all other tenements, &c., liable to the payment; and for better effectuating such charge, Thomson conveyed to Hanrott and Jones, their heirs and assigns, for ever, a clear annuity, or yearly rent-charge of 140, issuing out of the premises comprised in lot 1, payable quarterly ; the first payment to be made on the 25th of March then next, with a power of distress, on non-payment for twenty days after any quarterly day of payment, and a power of entry and perception of rents, on non-payment during thirty days. The deed contained a declaration, that the rent-charge of 140 was granted upon trust, in case the several parties named in the schedule (the purchasers at the sale), or any of them, their, or any of their heirs or assigns, or any persons claiming under or in trust for them, or any other persons for the time being entitled to, or in possession of, the premises comprised in the several lots mentioned in the schedule, or any part thereof, should, at any time thereafter, be compelled to pay and satisfy the several annuities thereinbefore charged exclusively on the premises out of which the annuity of 140 was thereby granted, or any of them, or any part thereof respectively, or any arrears thereof, or should incur or sustain any costs, charges, damages, or expenses, on account thereof, then, from time to time, as the same should happen, upon trust, that Hanrott and Jones or the survivor, his heirs or assigns, should, from time to 0. XVI-21* 650 OASAMA.fOR ?'. STRODH 2 SWANS. 349. time, when lawfully required, by and out of the yearly rent-charge thereby granted, by rawing and levying the same, or any part thereof, under the powers therein contained, or by such other means as to them [349] should seem meet (but not until such notice as thereafter mentioned should have been given), raise and levy all and every such sum and sums of money, losses, costs, damages, and expenses whatsoever, as the several parties named in the schedule, or any of them, or any or either of their heirs or assigns, or any persons claiming under or in trust for them, or any other persons for the time being entitled to, or in possession as aforesaid, should have been compelled to pay, or have sustained or incurred as aforesaid; and all costs and expenses which Hanrott and Jones, or the survivor of them, or the heirs or assigns of such survivor, should have incurred, in or about levying and satisfying such monies as aforesaid, or otherwise in. or about the execution of the trusts of the deed, and pay and dispose of the monies so levied accordingly, so as well and effectually in all things to indemnify the parties of the third part, their heirs, executors, &c., and all persons claiming under them respectively, or otherwise as aforesaid, their respective lands and tenements, goods and chattels, against the said yearly payments of '20, &c., respectively, and all arrears and future payments thereof, and all contributions, claims, and demands whatsoever on account thereof. A further declaration followed, that no sums of money should be raised under the trusts, unless Hanrott and Jones, or the survivor of them, his heirs or assigns, should have previously given to Thomson, his heirs, appointees, or assigns, one calendar month's notice, or more, of his or their intention to raise the same, and of the amount to be raised ; such notice to be in writing, signed by Ilanrott and Jones, or the survivor of them, hi&' heirs or assigns, and delivered to Thomson, his heirs, &c., or left at his or their usual or last place or places of abode ; and that Hanrott and Jones, and the survivor, &c., should permit the persons for the time being [350] beneficially entitled to the premises thereby charged, with the rent-charge, to retain the rent-charge until the trusts before declared should arise or require to be performed, and also to retain and receive the surplus of the rent-charge, which should remain, and not be applied in or towards the execution of the trusts before declared. The deed also included a separate covenant by Thomson with each of the parties named in the schedule, their heirs, executors, &c., and with every such other person for the time being entitled, or in possession as aforesaid, that Thomson, his heirs, appointees, or assigns, should, from time to time, pay and satisfy the several annuities of 20, &c., when they should become due, and effectually indemnify the several parties named in the schedule, their heirs, executors, &c., and all persons claiming under, or in trust for them, and all persons for the time being entitled, or in possession, as before-mentioned, and their respective estates and chattels, and especially the lands purchased by them at the said sale, against all the annuities, and all arrears and future payments thereof, and against all actions, suits, claims, loss, charges, and expenses, &c., by reason of non-payment of the annuities, or any part thereof, by Thomson, his heirs, appointees, or assigns, or any distress or other proceedings, claim, or demand, on account of the same. Other clauses authorised the trustees to retain their expenses out of the trust-money, and empowered a surviving trustee to appoint new trustees. Mr. Wetherell, and Mr. Sluulwell, for the exception. (Note : The argument and judgment on the first application, ex relations.} The stipulation, that the annuities " are in future to [351] be charged upon, and paid by, the purchaser of lot 1 only," entitles the purchasers of the other lots to an absolute exemption from the charge. They claim, not indemnity, but exoneration. For this purpose, the vendors are bound, if no other means of exoneration exist, to obtain a private act of parliament. Art act might be obtained for extinguishing the annuities, in consideration of an equivalent, by analogy to acts authorising exchanges by ecclesiastical persons, before Lord Eyremont's act (55 Geo. , c. 147) dispensed with the occasional interposition of the legislature. The liability to a rent-charge is an objection to the title. Admitting that the purchasers are not entitled to exoneration, the indemnity provided by this deed is inadequate. An annuity of amount only equal to the original annuities, and payable to trustees, affords no provision for the expenses to which the purchasers may be subjected, by the neglect of the trustees, to pay the sums as they become due : nor are the means for securing payment of the annuity adequate ; a power of entry, and distress, and perception of rents ; a term should have been created. The annuity being limited to the heirs of the trustees may vest in an 2 SWANS. 352. CASAMAJOR V. STRODE 651 infant. A covenant is not a sufficient security. The indemnity to the purchasers is limited to the case of payment by compulsion ; and the covenant for raising the costs is personal only, and will not run with the land. Brewster v. Kitchell.(l) Mr. Benyon, Mr. Bell, and Mr. Hodgson, for the report. The conditions of sale require the vendors only to [352] charge the annuities on lot 1, not to exonerate the remainder of the estates. The...
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