Countess of Mornington v Keane
| Jurisdiction | England & Wales |
| Judgment Date | 27 March 1858 |
| Date | 27 March 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1001
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD AND THE LORDS JUSTICES.
S. C. 27 L. J. Ch. 791; 4 Jur. (N. S.), 981; 6 W. R. 434 Montagu v. Earl of Sandwich, 1886, 32 Ch. D. 539; Tailby v. Official Receiver, 1888, 13 App. Cas. 548.
[292] countess of mornington v. keane. Before the Lord Chancellor Lord Chelmsford and the Lords Justices. March 11, 13, 20, 24, 27, 1858. [S. C. 27 L. J. Ch. 791 ; 4 Jur. (N. S.), 981; 6 W. R. 434 Montagu v. Earl of Sandwich, 1886, 32 Ch. D. 539; Tatiby v. Official Receiver, 1888, 13 App. Cas. 548.] A covenant that the covenantor would on or before a specified day either by a charge on freehold estates in England or Wales, or by an investment in the funds, or by the best means which might be then in his power, secure the payment of an annuity to a trustee for his wife : Held, not of itself sufficient to create a charge on the covenantor's property. Roundell v. Breary, 2 Vern. 482 [2 De G. & J. 319], explained and corrected. Qimre, whether Wellesley v. Wellesley, 17 Sim. 59, ought to be followed. This was a cause heard by order originally before the full Court. The Plaintiff was described in the title of the cause as the Countess of Mornington, the wife of the Right Honourable William Pole Tylney Long Earl of Mornington, suing without a next friend and in formd pauperis, under the authority of an order dated the 22d of January 1855. The object of the suit was to enforce against the Defendants a charge upon a freehold house in Saville Row, in which the Defendants claimed to be interested, deriving their title from the Earl of Mornington, by whom the charge was alleged to have been created. The charge was claimed under a covenant contained in a separation deed, dated the 21st of June 1834, and made between the Earl of Mornington, then the Honourable William Pole Tylney Long Wellesley, of the first part, the Plaintiff, his wife, then Helena, Wellesley, of the second part, and Colonel Thomas Paterson, the Plaintiffs father, of the third part. The deed recited that, in consequence of differences which had arisen and subsisted between the earl and the Plaintiff, they had agreed to live separate and apart from each other; and it was thereby witnessed, that for the purpose of making a provision for the Plaintiff from and after the 14th of November 1834, and during the then remainder of her life, and for the consideration therein mentioned, the earl, for himself, his heirs, executors and administrators thereby covenanted and agreed with Colonel Paterson, his executors and adminis- C. xxiv.-32* 1002 MOBNINGTON V. K.EANE 2DKO. &J. 291. trators, that the earl would [293] on or before the 1st day of February 1835, well and effectually, either by a charge on freehold estates of inheritance, to be situate in England or Wales, or by an investment of an adequate sum of money in some of the stocks or funds of Great Britain, or by the best means which might then be in his power, secure the payment to Colonel Paterson, his executors or administrators, during the life of the Plaintiff, of an annuity of 1000, in equal quarterly portions, on the 14th of February, the 14th of May, the 14th of August and the 14th of November in every year, the first quarterly payment of the annuity to be made on the 14th of November 1834 ; and it was thereby agreed that Colonel Paterson, his executors or administrators, should stand possessed of or interested in the annuity in trust for the Plaintiff for her sole and separate use and benefit, but not to be subject to any sale, charge, mortgage or other disposition by the Plaintiff by way of anticipation ; and it was thereby further agreed, that, upon the annuity of 1000 being so secured as aforesaid, such deeds should be executed by all necessary parties for carrying into effect the now stating agreement and the intention of the parties therein expressed, with such covenants and agreements on the part of the earl for permitting the Plaintiff to live separate and apart from him as if she were a feme sole and unmarried, and with such covenants on the part of Colonel Paterson, or, in case of his death in the meantime, of some other responsible person, for indemnifying the earl against all debts contracted by the Plaintiff after the annuity should have been so secured as therein mentioned, and during the then remainder of her life, and from all costs, claims and demands which the said earl should or might sustain or incur or become subject or liable to on account of the maintenance, support, lodging and wearing apparel of the Plaintiff, or otherwise on her account, from and after the day of the date thereof and [294] during the then remainder of her life, and with such other usual covenants and provisions as the respective counsel of them the said earl and the Plaintiff should advise and require. The Plaintiff had already sought to enforce the covenant contained in the separation deed against certain interests which the earl took under deeds of settlement of the 12th, 14th and 15th of December 1834, and had for that purpose instituted a suit, in which she obtained a decree. The case is reported at various stages of it under the name of Wellesley v. Welleslty, in 10 Simons, 256; 4 Mylne & Craig, 554, 561 ; 17 Simons, 59; 1 De Gex, Mac. & Gor. 501. She now alleged, by her present bill, that she had been unable to obtain any benefit from the decree obtained in the former suit, and that the estates and interests of the earl under the deeds of the 12th, 14th and 15th of December 1834 were subject to divers charges and incumbrances of very considerable amount, in consequence whereof the Plaintiff had hitherto been unable to recover any part of her annuity of 1000 or of the arrears; and that, in fact, no monies whatever had been paid to or received by her in discharge of the annuity or the arrears. The bill then stated a will and certain deeds, whereby the house in Saville Eow, which was the subject of the present suit, became vested in the earl in fee, subject to a life interest in his mother; and stated that the Defendant Daniel Keane claimed under two deeds, by one of which the earl mortgaged the house to him, and by the other of which he conveyed to him the equity of redemption. It also stated that the other Defendants claimed under mortgages and other securities made by [295] the Defendant Daniel Keane, and it charged that at the time of the execution of each of these deeds, and of the payment of the consideration (if any) for them, the Defendant Daniel Keane had notice of the separation deed, and that the other Defendants had also notice of it by employing him as their solicitor. The bill also sought to impeach the deeds on various grounds not material to be stated, the decision having turned on the effect of the separation deed. The bill also alleged that the Plaintiff had only lately discovered the fact that the Defendant the Earl of Mornington had on the 1st day of February 1835, any estate or interest in the house and premises in Saville Row (an allegation, however, which was contradicted by the evidence, the Plaintiff, on her cross-examination, having admitted that she had been from the beginning aware of the earl's title to the Saville Eow house). The prayer was, that it might be declared that by force and virtue of the separation deed a charge was created in favour of the Plaintiff for her annuity of 1000, 2DEO.SJ.M6, MORNINGTON V. KEANE 1003 as on and from the 1st of February 1835, upon the messuage and hereditaments in Saville Row, and upon all the estate and interest therein of the Defendant the Earl of Mornington, in priority to any charge, incumbrance, estate or interest therein which had been created in favour of or was invested in the Defendants or any or either of them, and that the premises might be sold and the proceeds of such sale applied in payment of the amount due to the Plaintiff in respect of her annuity of 1000 and the arrears thereof. It also sought, in the alternative, other relief not material to be stated. The Defendants denied the allegations on which the deeds were sought to be impeached, and evidence was [296] gone into on both sides, but the grounds on which the decision of the Court proceeded render it unnecessary further to state the effect of the evidence. Before the cause came on to be heard the Earl of Mornington, who was a Defendant, died, and the suit was revived against his executors. Mr. Holt and Mr. Freeling, for the Plaintiff. First, the covenant in the articles of separation is of such a nature as to create a charge on all the lands which the covenantor had at the time at or before which the charge was to be created, equity considering done that which ought to be done, and a covenant to charge at or before a particular time being in equity, as regards all who have notice of it, equivalent to au actual charga Thus, in Roundell v. Breary (2 Vern. 482), a father covenanted on his son's marriage to settle in one month after the marriage lands of the value of 150 per annum, and died without having made any settlement, and a bill was filed against the heir to have landa settled. The heir had on his own marriage settled a portion of the descended lands, and his wife claimed a jointure as a purchaser without notice. In that case the Lord Keeper was of opinion that although no lands were mentioned in the articles, yet the covenant should be a lien upon the land whereof Henry Breary was then seised, unless he had purchased and settled other lands within the time limited by the articles, and which were not settled on the second wife, who came in as a purchaser without notice. This case has never been impugned, but has been acted on ever since. So, in Ravenshaw v. Hollier (7 Sim. 3), a father covenanted to pay an annuity to his daughter out of the rents and income of his real and personal estate, and it was [297] held that the covenant created a charge on the estate as...
To continue reading
Request your trial
-
Crouch v Waller
...referred to Walrond v. Walrond (John. 18); Sidney v. Sidney (3 P. Wins. 269); Fletcher v. Fletcher (2 Cox, 99) ; Morningtmi v. Keane (2 De G. & J. 292); Je/erys v. Jefferys (Cr. & Ph. 138). Mr. H. K. Bagshawe and Mr. Koche, for the trustees. Mr. Cole, in reply. Judgment reserved. June 1. th......
-
Attwood v Lloyd
...if incumbrancers at all, were not so till after our mortgage was made; Freemoult v. Dedire (1 P. W. 429); Lady Marnington v. Keane (2 De G. & J. 292); Berrington v. Evans (3 Y. & C. 384); Williams v. Lucas (2 Cox, 160). Our security, therefore, is the first in date, Gem was not our solicito......
-
Stack v Royse
...of the articles ; and the intended husband further coveÂÂnanted that all the estates and property, real, freehold or personal, (a) 2 De G. & J. 292. (6) 1 Ir. Chan. Rep. 419. (c) 1 M. & C. 547. (d) 1 Dr. & Wal. 175. - (e) 7 Ir. Chan. Rep. 295. CHANCERY REPORTS. 259 whereof the said Eugene ......
-
2024 BCSC 380,
...of property. [17] To use some of the language used in the case of Mornington (Countess) v. Keane (1858), 2 De. G. & J. 292, 44 E.R. 1001, it is giving startling effect to the letter of demand to say that every part of Smith's property is to be so bound on 17th September 1982, that he ca......