Cupit v Jackson

[721] IN THE EXCHEQUER GHAMISEK. [In Equity.] alexanukli, loud cuikk bakon. Ci'fiT v. jackson. Monday, 5th July 1824. - Wkr.fe the co-twi-ilenue of legal remedies raises no objection to a suit in Eifiiily : 1. Arrears of an annuity chargeable by deed - a marriage settlement - on land, or a rent-charge, held to be recoverable by bill iti Equity filed by the personal representative of the grantee against the son of the grantor, the devisee of the estate, although powers of entry and distress, and a right to pernancy of the rents, issues, and profits, in satisfaction of the annuity when iu urrear, were expressly given and reserved to the grantee by the deed; and although the right to those remedies may have devolved on the representative, or he might have other legal remedies, by statute or otherwise, - on the principle that the proceeding in Equity may he the better and safer course : or may lie more effectual and comprehensive than the remedies at Law; or that there maybe difficulties surrounding the legal reine iy which the equitable course might obviate, in aid and furtherance of the proceedings at Law ; or that the Court of Equity might give further and more satisfactory relief, which it would be beyond the jurisdiction of a Court of Law to provide for. - All these considerations afford ground sufficient to justify applications to Courts of Equity by bill for relief, 1134 CUPIT V. JACKSON 13PBICE, 722. where and notwithstanding the Plaintiff may possibly have concurrent, but not commensurate remedies at law.-Jurisdiction, '2. It is competent to the Plaintiff in such a bill to pray that the Court will decree the amount of the arrears claimed and found due, to be raised by sale or mortgage of the estate ; as Courts of Equity have jurisdiction to decree estates with such incumbrances to be sold or mortgaged to satisfy them, where necessary,-lielease or dixcharye of ekarye mi land-what insufficient. 3. A charge on land created by deed cannot be discharged but by deed, or at least (seinble) by some formal act of release. Farol refusal to accept payment on the part of the grantee, is not such a sufficient indication of evidence even of an intention to disclaim the subject-matter, or acquit the party even in Equity, as to support a defence on that ground against a demand set up by a personal representative.-4. A gross sum, the arrears of an annuity chargeable on land, is a debt of the same nature as the annuity itself, and capable of the same remedies for the recovery of it; although the sum claimed for such arrears be due to the representative of the grantee, and claimed as such by the suit in Equity.- Slalules of limitation. 5. The principle adopted in Courts of Equity, from the policy of the statutes of limitation, furnishes no answer in bar of such a suit for the recovery of the arrears of a rent-charge. [S. C. M'Cle. 495. Observed on, Ruliertsv. Ifuyltes, 1830, Beat. 417. Discussed and distinguished, Graven v. Hicks, 1841, 11 Sim. 5:50. Followed, White v. Jam-ex, 1K5H, 20 Beav. 191 ; Hiirton v. Hall, 1874, L. ft. 17 Eq. 438 ; Blackbume v. Hope-Edward*, [1901] 1 Ch. 419. Discussed, Taylor v. Taylor, 1874, L. H. 17 Eq. 328. Keferred to, Kelsey v. Kehey, 1874, L. R. 17 Eq. 500; Scottish Jl'idmv.s Fund v. Cruiij, 1882, '20 Ch. 'D. 215; In re Tucker, Tucker v. Tucker, [1893] '2 Ch. 326; Hamhv v. Hantbro, [1894] 2 Ch. 568; In re Herbage Rents, Greetiwicit, Charity C(nnmisiiionern v. Green, [1896] 2 Ch. 816.] The Plaintiff,-who was executrix of the will of Thomas Brailsford, and also his residuary legatee, claimed an annuity charged by a niar-[722]-riago settlement upon the real estate of his wife's father; filed the present bill in December 1821, for the purpose of obtaining an account, and enforcing payment of the arrears, amounting to 4501., alleged to he due to the testator at the time of his decease, from the Defendant, the son of the grantor, who was the devisee of the estate. The Plaintiff also prayed that the amount of the arrears might bo satisfied out of the proceeds of the sale or by mortgage of the estate, or a competent part thereof. The bill set out the substance of the settlement, whereby John Jackson, the father of Elizabeth Jackson, in consideration of the marriage, conveyed the estate in question, to secure thereout (after two previous annuities) to Brailsford a clear annuity or rent-charge of 001. for his life, in case he should survive his then intended wife, or ho long after her decease as he should continue a widower and unmarried, with n power of entry and distress for the recovery of the annuity and all arrears, if unpaid for twenty-eight days, and of entry for satisfaction thereof out of the rents, issues, and profits, if unpaid for six weeks. As much of one part of this argument turned on the words and construction of the clauses in the deed, giving the powers of entry and distress for enforcing payment of the annuity, it becomes necessary to state them in terms. The settlor had previously conveyed the estate, in trust that [723] he should himself receive thereout an annuity for life of 451., and that Hannah, his wife, should receive another of 301. And to the further use, intent, and purpose, that in case the said respective annuities, yearly rents, or sums of 451. and 301., or either of them, or any part of them or either of them, should happen to be behind or unpaid by the space of twenty-eight days next after either of the said days of payment, &c. that then atid from time to time, and as often, &c. it should and might be lawful to and for the said J. Jackson the elder and his assigns, during his life, and for the said Hannah, the wife of the said J. Jackson the elder,'aiid her assigns, after his decease, into and upon the said messuages, &c. thereinbefore charged with the payment of the said respective annuities, yearly rents, or sums of 451. and 301., and into or upon the said messuages, &c. therein-before charged with the payment of the said respective annuities, yearly rents, or sums of 451, and 301., and into or upon any or every part or parts thereof to enter and distrain, and the distress and distresses then and there found to take, &e. and impound, &c. until they or their assigns should be fully paid and satisfied the said annuities, &c. as the 13 PRICE, 724. CUP IT V. JACKSON 1135 same should become respectively clue and payable, and all arrears thereof, and all costs,, charges, and expences attending such entry and distress; and also, in case the said respective annuities (&c.) should be in arrear, in part, or in all, for the space of six weeks, that then and as often as the case should so happen, it should be [724] lawful for the annuitants, and each of them respectively, their and each of their assigns, into and upon the said messuages, &c. to enter, and the rents, issues, and profits thereof to take and receive to his, her, and their own use and benefit, until he, she, or they should be thereby or therewith, or otherwise, fulJy satisfied and paid the said respective annuities, &c. and all arrears thereof, &c. And to this further use, intent, and purpose, that in case the said intended marriage should take effect, and he the said T. Brailsford the younger should happen to survive the said E. Jackson, his then intended wife, then he the said T. Brailsford the younger (the testator) should and might, yearly and every year, during so long time as he should happen to live, and continue a widower and unmarried, from and after the decease of the said E. Jackson, his then intended wife, and no longer, have, receive, and take, by and out of the said messuage, &e. one annuity, yearly rent, or sum of 601., free and clear from all taxes, charges, and deductions whatsoever, parliamentary or otherwise howsoever; which said annuity, yearly rent-charge, or sum of GOL, should be paid and payable to him and his assigns on the 25th day of March and the 29th day of September in every year, by even and equal portions ; the first payment thereof to begin and be made on such of the said days of payment as should first, and next happen after the decease of the said E. Jackson, his then intended wife; with such powers and remedies for recovering and obtaining the said annuity, yearly [725] rent, or sum of 601. by entry, distress, or otherwise, as was or were thereinbefore given and reserved to them the said J. Jackson the elder, and Hannah his wife, or either of them, for recovering of their respective annuities. The only defence at first set up was (the bill having stated all the facts necessary to establish the Plaintiffs right to claim the arrears), that the testator had always refused to accept payment of the annuity after Michaelmas 1813, up to which time the last half-yearly payment had been made on the 13th November in that year ; and that no further payment had been...