Davis v Duke of Marlborough
| Jurisdiction | England & Wales |
| Judgment Date | 09 August 1819 |
| Date | 09 August 1819 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 303
HIGH COURT OF CHANCERY
[74] davm v. The Duke of maklmoiiough. Jan. 15, - '.), Marchi, 1818. The estates which by stat. ~ Ann. c. .' , for perpetuating the memory of the great actions performed by the Duke of M., are limited to the then Duke tor life, remainder to / '. his Duchess for life, remainder to the heirs male of the body of the Duke, remainder to all and every his daughters, in such manner as the titles are the rein-before limited, in order that they may always '' go along and be enjoyed with the titles and dignities," with a proviso restraining alienation to the prejudice of the persons in remainder, are not inalienable, and the rents and profits may be effectually aliened by the person in possession, as against himself. The pension granted by stat. 5 Ann. c. 4. " for the more honourable support of the dignities " of the Duke of M., and his posterity, payable out of the revenues of the Post-Office, to such person severally and successively to whom the same should come by virtue of that act, with a proviso that the acquaintance of every such person should be a sufficient discharge, is inalienable, A motion for a receiver therefore, by an annuitant, to secure whose annuity the Duke had executed an indenture for conveying the estates and the pension to a trustee, was granted as to the estates, and refused as to the pension. By letters patent of the 5th of May 170.1, Queen Anne, having been cnablnd hy stat. 3 & 4 Anne, c. G), granted the honour and manor of \\oiiilxlocL, and the hundred of Wootton, to Julin Diiko of Marlhurough, his heirs and assigns for ever. By stat. " Anne, c. ; (entitled " an act for the settling of the honours and dignities of John Duke of Marlburougk upon his posterity, and annexing the honour and manor of Woodstock, and house of Blenheim, tn go along with the said honours"), for perpetuating the memory of the great actions performed by the Duke, after enacting that the titles and dignities which had been granted to him and the, heirs male of his body, should on failure, of issuo male, he vested in his daughters successively. in a course of devolution therein particularly described, it was enar.tcd, to the intent that the honour, manor, and park of Woodslar.k. and the house, then erecting there 304 DAVIS V. MARLBOROUGH (THE DUKE of) 1 SWAtyS. 75. called Bleniieim, and the hundred of Wootton, should always go along and be enjoyed with the titles and dignities aforesaid, that the Duke should be seized of the said honour, manor, &c., for life ; and that after his decease the same should remain to Sarah his Duchess for life ; and after her decease to the heirs male of the;body of the Duke ; and for default of such issue to all and every the daughters of the Duke, in such manner as the titles were [75] therein-before limited. By the fourth section of the act, a power of leasing was given to the then Duke and Duchess ; and the fifth section contained the following proviso : " That neither the said Puke of Marlborough, or the heirs male of his body, tior any of his daughters, or the heirs male of their bodies, or any other person to whom the premises shall come or descend by virtue of the limitations aforesaid, shall have any power by fine or recovery, or any other act, assurance, or conveyance in the law, to hinder, bar, or disinherit any the person or persons to or upon whom the said manors, house, lands, tenements, hereditaments, or premises, are hereby vested or limited, from holdiiig or enjoying the same, according to the limitations before in this act mentioned, other than and except such leases as the said Duke and Duchess may make, by virtue of the powers herein-before mentioned, and such other leases as tenants in tail may and are enabled to make, by virtue of the statute made in the two-and-thirtieth year of the reign of King Henry the Eighth, and grants of lands or tenements held by copy of Court Roll, according to the customs of the respective manors aforesaid; but all such fines, recoveries, act, assurances, and conveyances, other than such leases and grants by copy as aforesaid, shall be, and are hereby declared and enacted to be void." By stat. 5 Anne, c. 4 (entitled, " an act for settling upon John Duke of Marl-borough, and his posterity, a pension of 5000 per annum, for the more honourable support of their dignities, in like manner as his honours and dignities, and the honour and manor of Woodstock, and house of Blenheim, are already limited and settled "), reciting among other things the preceding statute, and the wish of the House of Commons to make some provision for the more honourable support of the Duke's dignities in his posterity, a pension of 5000 (issuing out of the revenues of the Post Office) was granted to the Duke for life, and after his decease to Surah, his Duchess, for life, and after her de-[76]-cease to such persons severally and successively to whom, and in such manner as, the title, honours, and dignities, afc by the preceding act limited. After directing that the annuity should be paid by the post-masters, &c., to John Duke of Marlborough, and " to all others severally and successively to whom the same should, after the decease of the said Duke, come, descend, remain, or belong by virtue of this aet " ; and that the acquittanpes of the Duke, and of every such other person, should be i sufficient discharge, the act contains a proviso, '" that neither the said Duke of Marlborough, or any person to whom the said annuity or yearly pension of 5000 hereby enacted to be paid as aforesaid, shall come, descend, remain, or belong, by virtue of the limitations aforesaid, shall have power by any act, assurance, or conveyance in the law whatsoever, to hinder, bar, or disinherit any the person or persona, to whom the said annuity or yearly pension is, by virtue of this act, limited or appointed to come, descend, or remain, from holding, enjoying, receiving, or taking the same, according to the limitations thereof made by this act, but that every such act, assurance, or conveyance shall bu, and is hereby declared and enacted to he, void." The bill stated, that by indenture of the '.'1st of March, 1811, G'eorge Duke of Marlborough, then Marquis of Rlandfurd, iu consideration of the sum of U'J'J, granted to the Plaintiff an annuity of 155 for the term of (J!) years, if the Duke should so long live, and for securing payment, of the annuity, conveyed to a trustee; the manors and hereditaments comprised in the aet of Anne,, and the pension of 5000 per annum, for ;i term of 500 years, to commence from, the death of the then Duke of Marlborough, together with certain other estates for the residue of the respective terms to which the Duke was entitled therein (subject to certain annuities), upon trust among other things, if the annuity should be inarrear 50 days, by the rents and profits of the estates, or by felling timber, or by sale of underwood or [77] fixtures on the promises*, to raise sums for payment of the arrears, with power of sale if the annuity should be in arrear for three months ; and, by the same indenture, the Duke assigned the pension of 5000 (from the decease of the then Duke) to the same trustee, Upon trust to secure the PlaintiU's annuity ; and nominated the 1 SWANS. 78. DAVIS V. MARLBOROTJGH (THE DUKE of) ,105 trustee his attorney to demand and receive the pension ; and the, Duke and the trustee appointed Robert Withy their receiver of the rents and profits of the premises conveyed, with a proviso that Withy should not act unless the annuity should he in arrear for six months. After farther stating the, death of the late Duke of Marlborough on the 30th of January 1817, and that the annuity had been unpaid and in arrcar since the 21st of September 1815, the bill charged that the Duke of Marlborough had confessed judgments to divers persons, alleged to he creditors of the Duke, for divers sums, whose names, and the particulars of whose demands, the Plaintiff was unable to set forth, but whom he believed not to be bona fide creditors of the Duke, and that they had sued out and executed writs of elegit against the hereditaments, estates, and premises comprized in the indenture of the, 21st of March 1811, and were then in possession of the said estates, and that by reason of the prior incumbrances affecting the said estates, and particularly of a term of 500 years created by an indenture of the 18th of March 1811, to secure an annuity of 155 granted by the Duke to one Philips, the Plaintiff was deprived of his legal remedies against the same. The bill prayed an account of the arrears of the Plaintiff's annuity, and payment (according to its priority) of the amount, by sale or mortgage of the premises comprized in the indenture of 21st March 1811, a provision for the security of the future payments, and the appointment of a receiver of the rents and profits of the estates, and of the pension of 5000. [78] On tliis day Mr. Hart and Mr. tieton, for the Plaintiff, moved that it might be referred to the Master to approve a proper person to be the receiver of the rents and profits of Blenheim House and Woodstock Park, and of the pension of 5000 per annum. Hir tiamucl RomiLly, Mr. Bell, and Mr. llampson, against the motion. An order for a receiver cannot be granted in the absence of judgment creditors who are in possession of the, estates under writs uieleyit. Before the Court will entertain the application, they must be made parties to the suit. But independently on this preliminary difficulty,'an insuperable objection arises from the nature of the property. The pension payable, out of the revenues of the Post Office, granted (according to the express terms of the act) (Stat. 5 Ann. c. 4) as a provision for maintaining I be dignity of the dukedom in perpetual memorial of the eminent services of which it was the reward, is inalienable. The law qualifies the rights of ownership...
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