Charles Hollier, - Appellant; Robert Hedges Eyre and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1842 |
| Date | 02 May 1842 |
| Court | House of Lords |
English Reports Citation: 8 E.R. 313
House of Lords
Mews' Dig. i. 218, 266, 337. Explained in Holme v. Brunskill, 1878. 3 Q.B.D. 507.
Deed of Annuity - Principal or Surety - Practice.
REPORTS OF CASES heard in the House of Lords, on Appeals and Writs of Error, and decided during the Sessions 1842-43. By C. claek and W. finnelly, Barristers-at-Law. Vol. IX. CHARLES HOLLIER -Appellant,ò ROBERT HEDGES EYRE and Others.- Respondents [April 13, 14, May 4, 5, 1840; May 2, 1842]. [Mews' Dig. i. 218, 266, 337. Explained in Holme v. Brunskill, 1878. 3 Q.B.D. 507.] Deed of Annuity-Principal or Surety-Practice. By deed of annuity, in consideration of £9000 therein stated to be paid to L. E. M. and M., the said L. granted to Messrs. D. and H. an annuity or clear yearly rent of £1800 for three lives, charged upon his estate; and L. E. M. and M. covenanted to pay the said annuity or yearly rent, with a proviso* for repurchase by them, or any or either of them. And they executed their joint and several bond and warrant of attorney to confess judgment on the bond, the judgment to be as a further security for the annuity, and to' be entered forthwith against L. and E., but not against M. and M. until default of payment, and execution not to be entered on the judgment against L. and E. until the annuity should be 40 days in arrear; and E., for further securing the annuity, agreed, in the event of not becoming the purchaser of L.'s estate in 12 months, to assign, at L.'s expense, a mortgage which E. held on it, and also' to procure the guarantie of a competent person for payment of the annuity.- Held by the Lords (reversing the decree of the Court below), that E. was a principal grantor of the annuity, and not a surety. The question, whether a person is principal or surety in the grant of annuity, is to be determined on the terms of the instruments; no extraneous evidence is admissible for that purpose (infra, p. 45). Any equities between grantors of an annuity are not to- affect the grantees, unless they have notice of them at the time of the grant (inffa, p. 51). Supplemental cases need not be lodged upon reviving an appeal which became abated after a full hearing (infra, p. 43). Marcus Blake Lynch, late of Galway, deceased, was, in the year 1818, seised in fee of an estate in the county of Galway called Barna, subject (among other incum-brances) to1 a mortgage, which in 1816 [2] became vested in Mrs. Mary Wilkins. who1, having shortly afterwards filed a bill of foreclosure in the Court ot Exchequer in Ireland, obtained the usual decree for a sale in June 1818. By an indenture, dated the 1st of December 1818, M. B. Lynch and Mary Wilkins assigned the mortgage to Robert Hedges Eyre (the Respondent), for £5848 16s. 9d. On the 20th of December 1819 the lands were set up for sale under the decree, and sold for £35,000 to a person who bid in the name of Robert Hedges Maunsell without his knowledge; and upon his stating that fact to the Court, he was discharged from the purchase. On the 10th of August 1820 the lands were again set up, and sold to 313 IX CLARK & PINNELLY, 3 HOLLIER V. EYRE [1840, 1842] a Mr. Reddiiigton for £27,500; but this sale having been considered as at an undervalue, the biddings were opened in December 1820, and thereupon Edward Eyre Mauiisell was declared the purchaser, for £28,500. The said R. H. Maunsell and E. E. Maunsell, and George Maunsell, hereinafter mentioned, were nephews of the Respondent R. H. Eyre : E. E. Maunsell was his attorney in the said foreclosure suit, and G. Mauusell was the receiver and manager of his estates in the county of Galway. In order to procure a sum sufficient to make the necessary deposit of one-fourth of the said purchase money in Court, a negotiation was entered into through a Mr. Coneys, a friend of M. B. Lynch, with a Mr. Rowley, the solicitor of Messrs. Henry Dawson and Charles Hollier, of London, who agreed to lend a sum of £9000 on an annuity of £1800 for three lives, redeemable at the end of a year, to be secured in the manner hereinafter stated. Accordingly, by a deed bearing date the 25th of January 1821, made between the said M. B. Lynch, R. Hedges Eyre. E. E. Maunsell and George Maun-[3]-sell, of the first part; the said Henry Dawson (since deceased) and C. Hollier (the Appellant), of the second part; and George Capron, of London, gentleman (as trustee), of the third part;-reciting that Lynch, Eyre, and the two Maunsells, had contracted with Dawson and Hollier for the sale to them of an annuity of £1800 ^English money) at the price of £9000 (English) for the term of 99 years, if Dawson arid Hollier and one W. Watkins, of London, or any or either of them, should so long live, to be charged 011 the lands of Barna, and to be secured by the joint and several bond of Lynch, Eyre, and E. E. and G. Maunsell, with a joint and several warrant of attorney to confess judgment against them, and also by a certain indenture of covenant relating to the said mortgage sum of £5848 16s. 9d.; and that upon the treaty for the sale of the said annuity, it had been agreed that the costs and charges of preparing and perfecting the securities for the same, both in England and Ireland, should be paid by Lynch, Eyre, and the Maunsells, and that the payment of the said annuity should be further secured by the covenant of a Mr. Harman for one year, in case default should be made in such payment for 14 days after any of the days appointed for payment of the same ; and that R. Hedges Eyre should enter into a covenant to procure, at the expiration of the year, a similar covenant from the said Harman, or some other competent person to be approved of by Dawson and Hollier, for payment of the said annuity for three years thence next ensuing, or until the same should be repurchased, and to procure similar covenants at the expiration of each period of three years whilst the annuity continued to be payable ; and also1 reciting that Lynch, Eyre, and the two Maunsells, had by their bond, bearing even date with these presents, [4] jointly and severally become bound unto Dawson and Hollier, their executors, administrators, and assigns, in the penal sum of £18,000 with warrant of attorney, to the intent that judgment should be entered up against Lynch and Eyre immediately, and against the two Maunsells, when default should be made in the payment of the annuity : and that the said agreement, so far as respected the mortgage sum of £5848 16s. 9d., and the covenant of Harman for payment of the annuity for ona year, and the covenant of Eyre for procuring similar covenants from Harman or other competent person (as above stated), was intended to be carried into effect by separate indentures of even date with these presents:-It was witnessed, that in pursuance of the said agreement, and in consideration of the said sum of £9000 stated to be paid by Dawson and Hollier to Lynch, Eyre, and the two Maunsells (the receipt of which sum Lynch, Eyre, and the Maunsells thereby acknowledged), Lynch granted unto Dawson and Hollier, their executors, administrators, and assigns, one annuity or clear yearly rentcharge of £1800 payable during the term of 99 years, if Dawson, Hollier, and Watkins, or any or either of them should so long live, to be charged and chargeable upon the Barna estate, and all Lynch's other property in the county of Galway; and he .covenanted that in case the annuity should be in arrear for 21 days, Dawson and Hollier should be at liberty to enter and distrain upon the premises charged therewith; and he created a trust term of 100 years in Mr. Capron, for more effectually securing the annuity. The deed then contained a covenant on the part of Lynch, Eyre, and the two Maunsells, to pay the said annuity, yearly sum, or rent of £1800, when the same 314 HOLLIER V. EYRE [1840, 1842] IX CLARK & FINNELLY, 5 should become due as aforesaid; and also a covenant for title and for further assurance, on the part of [5] Lynch; and a stipulation on the part of Dawson and Hollier, that no execution should be issued upon the judgment to be entered up against Lynch, Eyre, and the Maunsells, on their bond, until the annuity should be in arrear for 40 days next after the same should become due; and also a provision to enable them, or any of them, to repurchase the annuity at the expiration of 12 months, upon giving three months' notice, and paying all costs and arrears. The receipt indorsed on the deed for £9000 was signed by Lynch, Eyre, and E. E. and G. Maunsell. A bond, as recited in the deed, was executed on the same day, and also a warrant of attorney authorising j udgment to be entered thereon against Lynch arid Eyre forthwith, but not against the Maunsells until default should be made in the payment oi the annuity; and a memorandum of the same date was also executed, stating that execution should not be issued on the judgment against Lynch and Eyre until default should be made in the payment of the annuity ?or 40 days ; and that judgment should not be entered up against the Maunsells until default should be ipade in the payment of the annuity. Articles of agreement of the same date were drawn up, reciting the deed of annuity, and the bond and warrant of attorney, and that the said R. Hedges Eyre was entitled to a mortgage debt of =£5848 16s. 9d. secured on the estates of Lynch ; and that it had been agreed at the execution of the before-mentioned securiti?s that he, Eyre, should, in the event of his not becoming within 12 months the purchaser of the Barna estate, assign the mortgage on trust to secure the payment of the said annuity, in case the same should be in arrear for 30 days after any of the days of payment; or, in case the sum secured by the mort-[6]-gage should be paid off within 12 months, that he, Eyre, shooild vest that sum on trust to secure the annuity; or if he should become the purchaser of the said estate, then...
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