Cottrell v Hughes
| Jurisdiction | England & Wales |
| Judgment Date | 27 January 1855 |
| Date | 27 January 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 532
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 3 C. L. R. 496; 24 L. J. C. P. 107; 1 Jur. N. S. 448; 3 W. R. 248.
[532] cottrell v. hughes. Jan. 27, 1855. [S. C. 3 C. L. B. 496; 24 L. J. C. P. 107; 1 Jur. N. S. 448; 3 W. E. 248.] In the years 1762 and 1763, two several terms of 1000 years each were created, for mortgage purposes; and, the mortgage debts having been satisfied, these two terms were in 1773 assigned to one Hill, in trust to attend the inheritance, for the benefit of J. C., the elder (the great-grandfather of the plaintiff), who was then seised in fee. In 1778, the estate was limited in strict settlement, on the marriage of J. C. the younger (the plaintiff's grandfather); and, in 1813, by a settlement made by the plaintiffs father and grandfather, the estate was limited to the plaintiffs father for life, with remainder to such of his children as he should appoint: but in neither of these settlements was any notice taken of the outstanding terms. In 1840, the plaintiff's father,-assuming and covenanting that he was seised in fee,-sold the estate to one M. D., with whom the defendant was assumed to be identical; and on that occasion the two satisfied terms of 1000 years each were assigned, by the executors of Hill, to a trustee for M. D. to attend and protect the inheritance. M. D. had no notice, at the time of the purchase, of the settlement of 1813. In 1844, the plaintiffs father duly executed the power conferred on him by the settlement of 1813, and thereby limited the estate, after his death (which took place in 1853), to his eldest son, the plaintiff, in fee.-In ejectment brought by the plaintiff to recover the premises :-Held, that the mere circumstance of the omission of all mention of the two terms for 1000 years in the conveyances of the estate subsequent to 1813, would not justify the court (even if, on the authority of Doe v. Hilder, 2 B. & Aid. 782, it would have warranted a jury) in presuming their surrender; and that, inasmuch as a court of equity would not have restrained the setting up of those terms by M. D. in a court of law, they must be considered as still subsisting notwithstanding the statute 8 & 9 Viet. c. 112; and consequently the plaintiff was not entitled to recover, because those terms preceded the estate acquired by him under the settlement of 1813, and therefore the title to the legal possession for the remainder of the terms was not in him, but in the assignee thereof. This was an action of ejectment to recover a messuage or dwelling-house situate in the parish of Wolverhampton, in the county of Stafford, called the Wood End or Wood Hayes, and five pieces of land adjoining the same, and also two pieces of land called Wednesfield, situate in the same parish. The defendant appeared and defended for the whole. The cause came on to be tried before Wightman, J., at the last Spring Assizes for the county of Stafford, when a verdict was by consent found for the plaintiff, subject to the opinion of the court upon the following case :- The plaintiff, Thomas Swinfen Cottrell, is the eldest son of Thomas Swinfen Cottre'll the elder, deceased, and Elizabeth his wife, also deceased, and claims to be entitled in fee-simple to the premises in question under and by virtue of the indenture of the 4th of May, 1813, and the deed of appointment of the 10th of October, 1844, hereinafter respectively mentioned. [533] By indentures of lease, release, and assignment, dated respectively the 21 st and 22nd of April, 1773, and made between the Eev. John Lea, clerk, Thomas Lea, Samuel Haley and Sarah his wife, and Mary Lea, of the first part, John Davies of the second part, William Egington and his wife of the third part, Joseph Cottrell of the fourth part, and William Hill of the fifth part,-and which indentures were duly executed by all the aforesaid parties,-after reciting, that, by an indenture of lease dated the 12th of June, 1762, made between the said William Egington of the one part, and Euth Butler of the other part, the said William Egington demised by way of mortgage, for the term of one thousand years, unto the said Euth Butler, her executors, administrators, and assigns, two undivided third parts or shares of certain premises, including those which are the subject of this action, to secure the repayment of 301. and interest on the 12th of December then next ensuing; and that, by an ISC. B. 534. COTTRELL V. HUGHES 533 indenture of assignment and demise dated the 29th of June, 1763, made between the executrixes of the said Ruth Butler, then deceased, of the first part, the said W. Egington of the second part, and Jane Shenton of the third part, the said executrixes, in consideration of the re-payment to them by the said Jane Shenton of the said mortgage money and some interest thereon, assigned to the said Jane Shenton, her executors, administrators, and assigns, the premises comprised in the said lease to the said Ruth Butler for the residue of the said term of one thousand years; and the said W. Egington, in consideration of a further advance to him, also demised by way of mortgage unto the said Jane Shenton, her executors, administrators, and assigns, the other third part or share in the said premises for the term of one thousand years from the date thereof;-and further reciting a subsequent assignment by the said Jane Shenton (confirmed by the said W. Egington and [534] Elizabeth his wife), for the consideration therein mentioned, of the whole of the said premises to Stephen Falkner, for the remainder of the two several terms of one thousand years, and one thousand years, to secure the re-payment to the said Stephen Falkner of 1601. and interest, as therein mentioned; and that, by an indenture of the 12th of June, 1770, made between the said Stephen Falkner of the first part, the said W. Egington and Elizabeth his wife of the second part, and the Rev. Samuel Lea of the third part, in consideration of the payment by the said Samuel Lea to the said Stephen Falkner of the mortgage money and interest due to the latter, and of a further advance made by the said Samuel Lea to the said W. Egington and Elizabeth his wife, demised, ratified, and confirmed unto the said Samuel Lea, his executors, administrators, and assigns, the whole of the said premises, by way of mortgage, for the residue of the above mentioned terms respectively ;-and also reciting the death of the said Samuel Lea, having made his will, and appointed executors, who had duly proved the same; -the premises which are the subject of this action, were, together with others, for the consideration therein mentioned, conveyed to the said Joseph Cottrell in fee-simple; and the two several terms of one thousand years respectively were assigned by the. executors of the said Samuel Lea (the principal money and interest due to them being discharged by the said Joseph Cottrell) to William Hill, his executors, administrators, and assigns, for all the residue thereof, in trust to attend the inheritance for the benefit of the said Joseph Cottrell, his heirs and assigns. By indentures of lease and release, dated respectively the 27th and 28th of September, 1778,-the release made between the said Joseph Cottrell, therein called the elder, and Joseph Cottrell the younger, eldest son of [535] the said Joseph Cottrell the elder, of the first part, Thomas Swinfen and Alice Grundy of the second part, Samuel Perkes and Joseph Palmer of the third part, and Samuel Grundy and John Corser of the fourth part,-being a settlement made in contemplation of the marriage of the said Joseph Cottrell the younger and the said Ann Grundy,-the premises which are the subject of this action were, for the consideration therein mentioned, conveyed by the said Joseph Cottrell the elder, to the said Samuel Perkes and Joseph Palmer, to the use (after the solemnization of the said then intended marriage) of the said Joseph Cottrell the elder and his assigns for life, with remainder to the use of the said Joseph Cottrell the younger and his assigns for life, with remainder to the use of the said Samuel Perkes and Joseph Palmer, and their heirs, during the life of the said Joseph Cottrell the younger, upon trust to support contingent remainders, with remainder to the use of the said Ann Grundy, for life, with remainder to the use of the said Samuel Perkes and Joseph Palmer, and their heirs, during the life of the said Ann Grundy, in trust to support contingent remainders, with remainder to the use of the first son of the body of the said Joseph Cottrell the younger on the body of the said Ann Grundy lawfully to be begotten, and the heirs of the body of such first son lawfully issuing, with divers remainders over, and ultimately to the use of the right heirs of the said Joseph Cottrell the younger. The said marriage between the said Joseph Cottrell the younger and the said Ann Grundy was duly had and solemnized shortly after the date and execution of the above-recited indenture. The said Thomas Swinfen Cottrell the elder, the father of the plaintiff in this suit, was the eldest son of the said marriage, and had, at the time of the making of the indenture nexfc hereinafter mentioned, attained the age of twenty-one years. [536] The said Joseph Cottrell the elder died in or about January, 1791. On the 4th of August, 1810, the said Thomas Swinfen Cottrell the elder intermarried with 534 COTTKELL V. HUGHES 15 C. B. 537. Elizabeth Bateman, who was living at the date of the indenture next hereinafter mentioned ; and the plaintiff was the eldest son of such marriage. By indentures of lease and release, dated respectively the 3rd and 4th of May, 1813,-the release made between the said Joseph Cottrell the younger and Anne his wife of the first part, the said Thomas Swinfen Cottrell the elder of the second part, Benjamin Whittaker of the third part, William Q-arfield of the fourth part, James Hordern...
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...attend the inheritance, which was in the plaintiffs. The Court of Common Pleas, in Cottiell v Hiujkei,, agreeing with the decision of (b) 15 C. B. 532 (Reported more fully rn U Com Law Rep 496.) 7H. *F. m. PLANT I'. TAYLOR 463 this Court in Doe d. Cadwalader v. P/tce, on the point that the ......