Dalby v Pullen

JurisdictionEngland & Wales
Judgment Date18 March 1830
Date18 March 1830
CourtHigh Court of Chancery

English Reports Citation: 39 E.R. 114

HIGH COURT OF CHANCERY

Dalby
and
Pullen

S. C. 8 L. J. Ch. (O. S.), 74.

dalby v. pullen. March- 16, 18, [1830]. [S. C. 8 L. J. Ch. (O.S.), 74.] Under a decree for sale, made in a suit for the administration of a testator's assets, A became, in 1813, the purchaser of certain lots, and, after a long resistance to the title, was in 1824 compelled to pay the purchase-money into Court, and was let into possession: two years afterwards, and before the conveyances were executed, having discovered, by means of the information of third parties, a circumstance which constituted a material defect in the title, and which, there was reason to believe, had been long before known to the solicitor of the Plaintiff, he obtained a reference back to the Master; the Master reported agaitist the title; to the report exceptions were taken, and before the exceptions came on to be heard the vendor's had cured the defect. Held, that the purchaser had a right to be discharged from his contract, and that a further reference of title ought not to be directed; that, in a sale under a decree, the solicitor of the Plaintiffs, having the management of the sale, is to be considered, as between the vendors and the purchaser, to be the agent of all the parties to the suit. John Carter, by his will, dated in February 1778, devised and bequeathed the residue of his real and personal estates to his brother Nicholas Cartel', and died in September 1781, when Nicholas entered into the receipt of the rents and profits of all the lands and tenements of which John was in possession at the time of his death. In March 1784 Nicholas Carter made his will, by which, after devising his freehold, copyhold, and leasehold lands, tenements, and hereditaments to his wife for life, he directed that, upon her death, they should be sold, and that the monies to arise by such gale should be divided equally between and among his seven daughters. He died in the same year, leaving his seven daughters him surviving : his widow immediately entered into the receipt of the rents and profits of all the lands of which he had been in possession at his decease, and continued in such receipt during the remainder of her life. Her death happened in 1811. Shortly afterwards a suit was instituted for the purpose of having the [297] will established, and the trusts of it carried into execution; and, on the 13th of March 1813, a decree was made, establishing tbe will, and directing the estates to be sold. They were accordingly sold in thirty-two lots, before the end of the year, for sums amounting to considerably more than £30,000. With a view to simplify the title, which had been embarrassed by various incum- 1 RUSS. & M. 8. DALBY V. PULLEX 115- brances made by the daughters and their husbands, deeds were executed in February aud May 1816, by which the estates were vested in trustees upon trust to convey to-the several purchasers; and fines with proclamations were levied by six of the daughters: the seventh was prevented by her absence abroad from concurring in the fines. Sir Robert Wigram had been reported the purchaser of lots 1, 2, 8, and 9, at the respective pricea of £710, £1670, £1875, and £950. On the abstract delivered co-him it appeared that part of the property which he had bought was derived from John Carter, and that it had been conveyed to him subsequently to the date of his. will, so that it would not pass to Nicholas as his devisee. Sir Robert Wigram, therefore, required proof that Nicholas was the heir of John. In November 1816 tlie solicitor of the Plaintiffs stated in reply that he had searched for, but had not found, the registry of the marriage of George Carter, the father of the devisors, John and Nicholas; that it appeared by the entries of baptism of John and Nicholas that the former was baptized on the 17th of July 1726, and the latter on the 30th of January 1731 ; and that, on the death of John, Nicholas had been admitted, as his heir, to some copyholds which John had not surrendered to the use of hia will. The statement was considered satisfactory; objections, however, were made to the title on other grounds; these were answered; and finally the [298] Master reported that a. good title was rnade to all the lots except lot 2. Sir Robert Wigram took exceptions to the report; the exceptions were overruled ; and, on the 4th of December 1824, an order was made discharging him from the purchase of lot 2, and ordering the purchase-money of the three other lots to be' paid into Court. The money was paid accordingly, and Sir Robert \Vigram was let into possession. In November 1826, before any conveyance to him was executed, Sir Robert Wigram was informed by persons who were not parties to the suit that Nicholas. Carter was not the heir of John ; for that Nicholas had an elder brother, George, who* died in the lifetime of John, the testator, and left a son John, who, as heir-at-law, was. entitled to the estates which John, the testator, had purchased after the date of hi* will. Sir Robert Wigram immediately communicated this information to his solicitor, who caused a search to be made in the registers of the parish church of St. Giles within Cripplegate, and there found entries of the baptisms of three sons and three daughters of George Carter of the said parish, butcher, and Elizabeth his wife. Tho three sons were named John, George, and Nicholas; John was born on the 24th of June 1726, and baptized on the 17th of July 1726 ; George was born on the 21st of August 1727, and baptized on the 3d of September 1727 ; and Nicholas was born on the 5th of January 1731, and baptized on the 30th of January 1731. The register of the same parish contained an entry of a marriage solemnized on the 29th of December-1755, between George Carter, bachelor, and Sarah Carter, spinster, both described a* resident in the said parish; and entries of the baptisms of two sons of George Carter of the said parish, butcher, and Sarah bis wife, namely, George, born on the [2993 27th of July 1757, and baptized on the 14th of August in the same year; and John, born on the llth of May 1759, and baptized on the 30th of the same month of May. In the register of burials of the same parish was an entry of the burial of George/ Carter, a child, on the 20th of August 1758. John Carter, the surviving son, was the person who now claimed, as heir of bis uncle, John Carter the testator, the land* purchased after the date of his will. In this state of circumstances, on the 15th of January 1827, an order was made, on the application of the purchaser, referring back the title to the Master : he reported against the title; and to his report exceptions were taken. While the exceptions were pending, an order was made in the cause, by which it was referred to the Master to inquire whether it would be for the benefit of all parties that a sum of £1000 should be paid to John Carter, in consideration of his releasing and conveying his claim aud interest. The Master reported in the affirmative; the money was paid to John Carter; and in March 1829 he executed a release and conveyance of all his interest. Shortly afterwards the exceptions were argued and overruled, and as soon as they were disposed of, two motions were made-one on behalf of the purchaser, to be discharged from his purchase; the other on behalf of the Plaintiffs, that it might be refeiTecl back to the Master to review his report, and inquire whether the vendors could now shew a good title. 116 DALBY V. PULLEX 1 RUSS. & M. 300. The affidavits sworn in support of the purchaser's present application, and of his òapplication in January 1827, when the last order of reference was made, disclosed the facts which are stated above. It appeared further, by the affidavit of one Thomas Price, the brother-in-law of John Carter the Claimant, that, about the 4th of [300] December 1M26, Thomas Dalby, one of the Plaintiff's, in a conversation concerning John Carter's òclaim, informed him, Price, that, about ten years before, he had complained to his solicitor of the delay which had taken place in bringing the affairs of Nicholas Carter to a settlement, when his solicitor told him that Sir Robert AVigrarn's solicitor insisted òòon having an heir-at-law of John Carter, and that there was an heir-at-law, but that he could not be brought forward without danger to a considerable part of the freehold lands. The solicitor of the Plaintiff', on the other hand, denied that he, on the occasion referred to by Price, or at any other time, made to Dalby the statement there ascribed to him ; but he believed that he mentioned to Dal by a rumour he hud heard, that Nicholas Carter had an elder brother, George, and that" Dalby said he always understood Nicholas to have been the heir of John, and requested the deponent not to speak òof his having heard any thing which might impeach the title of Nicholas as heir of his -brother John. He further swore that, at the time when he prepared the abstract, he firmly believed Nicholas Carter to have been the next brother and heir of John, and òconsidered George to have been a younger brother of Nicholas : and that he never heard that there was any brother of John Carter older than Nicholas, or that George had left any issue, until several years after the sale of the estates, and until long after the deeds of 1816 were executed, and the fines leded. the vice-chancellor [Sir John Leach] granted Sir Kobert AVigram'.s motion, and refused the other motion, with costs (3 Simons, I'!)). A motion was now made before the Lord Chancellor [301] on behalf of some of the Defendants, that the...

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