Crofts v Middleton
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 1856 |
| Date | 19 March 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 364
BEFORE THE LORDS JUSTICES.
S. C. 2 K. & J. 194; 1 Jur. (N. S.), 1133; 25 L. J. Ch. 513; 2 Jur. (N. S.), 528; 4 W. R. 439. See Pride v. Bubb, 1871, L. R. 7 Ch. 70; In re White andl Hindle's Contract, 1877, 7 Ch. D. 201; General Finance, &c., Company v. Liberator, &c., Building Society, 1878, 10 Ch. D. 22; Carter v. Carter [1896], 1 Ch! 68.
[192] crofts v. middleton. Before the Lords Justices. Feb. 27, 28, March, 19, 1856. [S. C. 2 K. & J. 194; 1 Jur. (N. S.), 1133; 25 L. J. Ch. 513; 2 Jur. (N. S.), 528 ; 4 W. R. 439. See Pride v. Bulb, 1871, L. K. 7 Ch. 70; In re White an l Hindle's Contract, 1877, 7 Ch. D. 201 ; General Finance, &c., Company v. Liberator, die., Building Society, 1878, 10 Ch. D. 22 ; Carter v. Garter [1896], 1 Ch! 68.] A testator devised land to his daughter for life, with remainder to her children in fee, but if there should not be any such child, or if all such children should die under twenty-one and without issue, then to the heirs and assigns of the daughter. The daughter and her husband by deed acknowledged, according to 3 & 4 Will. 4, c. 74, in consideration of her husband having made large expenditure in improving the property, conveyed it to the use of the daughter for life, with remainder to the use of her children in fee, and in the event of there being no such child, to such uses as the husband should appoint, and subject thereto to the use of the husband in fee. Held, that, under the provisions of the Act, the conveyance was effectual in equity, if not at law also, to pass the wife's ultimate interest under the will, although that interest should be held to have been a contingent remainder, as to which queers. Where there is an equitable title in a Defendant to an action of ejectment, the Court will at his suit restrain the proceedings in the action, although there may be a question whether he would not be successful at law. This was an appeal from the decision of Vice-Chancellor Wood, dismissing a bill for foreclosure. The title of the Plaintiff and his mortgagor, one of the Defendants, was derived under the will of Benjamin Middleton, who was seised in fee of the mortgaged property, and by his will after giving to his wife Sarah Middleton during her natural life the use and enjoyment of all his household goods and furniture and the rents, interests and dividends of all his real and personal estates and property whatsoever and wheresoever, gave and devised after her decease to his son Samuel Middleton and to his heirs and assigns for ever, certain [193] hereditaments, which the testator specified, subject to certain charges. He DEG.M.&aw. CROFTS V. MIDDLETON 365 then gave to his daughter Eliza Chapman, and her assigns, during her life for her sole and separate use, certain hereditaments, which he particularly described. The will then proceeded as follows :-" And after the decease of my said daughter Eliza Chapman I do hereby give and devise the said two dwelling-houses with the appurtenances thereof unto an only child, or all and every the children of her my said daughter Eliza Chapman, lawfully to be begotten (if more than one), in equal shares or proportions as tenants in common and not as joint-tenants, and the hein and assigns of such child or children respectively for ever. But in case any one or more of such children shall die under the age of twenty-one years, and without leaving lawful issue of his, her or their body, or respective bodies, living at the death of him or them respectively, and so often as such event may happen, the share or shares as well accruing as original of every such child so dying shall be and remain to the survivor or survivors, or other or others, of the said children in equal shares or proportions, if more than one to take as tenants in common, and his, her or their heirs and assigns respectively for ever, every share which shall so accrue to any such child being liable to the same condition of survivorship or accruer as his or her original share. And in case there shall not be atiy child of my said daughter Eliza Chapman, or if any and all such children shall die under the age of twenty-one years and without leaving lawful issue as aforesaid, then I do hereby give and devise the said two dwelling-houses, with the appurtenances thereof, unto the heirs and assigns of my said daughter Eliza Chapman for ever." The will then proceeded to dispose of other hereditaments in favour of the testator's daughter Martha Fidler and her children, and then of other hereditaments in favour of his son [194] John Middleton and John Middleton's children. Then came the devise in question, which was as follows :-"And I give and devise unto my daughter Sophia Middleton, spinster, and her assigns, during her natural life, for her sole and separate use, all those two dwelling-houses adjoining the Coopers' Arms, in Bartholomew Street, in Newbury aforesaid, now occupied by me and my tenant Sarah Long, with the yard behind the same and other the appurtenances thereof; and after the decease of my said daughter Sophia Middleton. I do hereby give and devise the said two dwelling-houses and premises, with the appurtenances thereof, unto an only child or all and every the children of her my said daughter Sophia Middleton lawfully to be begotten (if more than one), in equal shares or proportions, as tenants in common and not as joint-tenants, and the heirs and assigns of such child or children respectively for ever, with the like benefit and condition of survivorship and accruer as is hereinbefore given or provided with respect to the children of my said daughter Eliza Chapman; and in case there shall not be any child of my said daughter Sophia Middleton, or if any and all such children shall die under the age of twenty-one years and without leaving lawful issue as aforesaid, then I do hereby give and devise the said two dwelling-houses and premises, with the appurtenances thereof, unto the heirs and assigns of my said daughter Sophia Middleton for ever. All the rest and residue of my real and personal estates, effects and property whatsoever and wheresoever I give, devise and bequeath the same unto my said son Samuel and my said daughters Eliza, Martha and Sophia, their heirs, executors, administrators and assigns respectively for ever, as tenants in common, not as joint-tenants"-arid the testator directed that the share of each daughter should be for her separate use. [195] The testator's daughter Sophia Middleton married the Defendant John Beale between the making of the will and the testator's death, which happened before the year 1840. His widow died in the year 1846, but between the two deaths the Defendant John Beale and his wife, in the year 1840, executed indentures of lease and release, of which each, or the indenture of release, was duly acknowledged by Mrs. Beale in the manner directed by the statute 3 & 4 Will. 4, c. 74, as to the deeds of married women. The indenture of release was expressed to be made between John Beale and Sophia his wife of the one part, and James Beale of the other part. It recited the will and death of Benjamin Middleton, and the marriage of Sophia with John Beale. It further recited that the Defendant John Beale and Sophia his wife had, with the consent of Sarah Middleton, widow of the testator Benjamin Middleton, caused the two dwelling-houses so devised by him to his daughter Sophia as aforesaid to be pulled down, and in the room thereof had begun to erect a messuage or tene- 366 CROFTS V. MIDDLETON 8 DBO. M. 4 0.186. ment with offices and other buildings, and that they were therefore desirous of settling and assuring the same and other the hereditaments and premises so devised -to her the said Sophia, and adjoining and belonging thereto, to the uses thereinafter mentioned. It than witnessed, that for effectuating the intention of the parties, and in consideration of ten shillings, John Beale and Sophia his wife granted, aliened and released to James Beale and his heirs and assigns the hereditaments (describing them), to hold unto James Beale, his heirs and assigns, to uses thus expressed ;-" To the use of Sarah Middleton" (who had not joined in the conveyance) "the widow of Benjamin Middleton and her assigns during the term of her natural life, and from and immediately after her decease to the use of the said Sophia, the wife of John Beale, and her assigns during her life, without impeach-[196]-inent of waste, and from and immediately after her decease to the use of an only child, or all and every the children of the said Sophia Beale lawfully to be begotten (if more than one), in equal shares and proportions, as tenants in common and not as joint-tenants, and of the heirs and assigns of such child or children respectively for ever. Provided always, that if any one or more of such children shall die under the age of twenty-one years, and without leaving lawful issue of his, her or their body or respective bodies living at the death of him, her or them respectively, and so often as such event shall happen, the share or shares, as well accruing aa original, of every such child so dying shall remain to the use of the survivor or survivors or other or others of the said children, in equal shares or proportions if more than one, to take as tenants in common, and of his, her or their heirs and assigns respectively for ever, and that every share which shall so accrue to any such child shall be liable to the same condition of survivorship or accruer as his, her or their original shares, and if there shall not be any child of the said Sophia Beale, or if any or all such children shall die under the age of twenty-one years and without leaving lawful issue as aforesaid, then to the use of such person or persons, for such estate or estates, interest or interests, upon such trusts, for such intents and purposes, and with, under and subject to such charges, powers, provisions and conditions...
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