Eastwood v Lever
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1863 |
| Date | 01 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 859
BEFORE THE LORDS JUSTICE.
S. C. 33 L. J. Ch. 355; 9 L. T. 615; 3 N. R. 232; 12 W. R. 195; 28 J. P. 212.
that I have already mentioned on the part of the trustees, and that that effect is so given to this will is a result which is in perfect conformity with the intention of the testator as,declared in the outset. The order, therefore, that I must make will be to reverse the order of His Honour the Master of the Rolls ; to declare that there is no intestacy, nor is any part of the rents and profits of the estates undisposed of ; to declare that the Appellant, as being the person in whom the first estate of freehold was vested beneficially at the death of the testator, inasmuch as no child has been born since the death of the testator to either of his sisters, is entitled to the receipt of the surplus rents and profits of the estate not required for the purposes of the term from the time of the death of the testator ; and to declare also that subject to the obligation of keeping down the annuities payable out of the rents and profits of the real estate and perform- ing the directions and requisitions of the trustees, which they are warranted to make under £1133 their powers of management, and subject to the further obligation on the part of the husband of the Appellant of complying within one year from the 4th July 1863 with the requirements of the will for the assumption of the name and arms of the testator, the Appellant, the tenant for life, is entitled to the possession of the mansion-house, park and other appurtenances, and to the receipt of the rents and profits of the real estate devised by the will of the testator, or the estates purchased under the directions therein contained, and to the income of the residuary personal estate of the testator for life, subject to the trusts of her marriage settlement, (Reg, Lib. 1863, A. 2661.) The reporters understand that an appeal to the House of Lords was presented by the Marquis and Marchioness of Casteja from so much of the Lord Chancellor's decision as held the Appellant entitled to the surplus rents and profits during the interval of suspense between the day of the testator's death and the expiration of eighteen years from the date of his will, within which children of the marchioness, to have taken at all under the testator's will, must have been born, an interval in which the Appellant's right was contingent merely, and that the appeal was compromised on terms favourable to the heiress at law. [1143 EasTwoop a. LEVER. Before the Lords Justices. Noe. 10, 11, 12, Dec. 9, 16, 1863. [S. C. 33 L. J. Ch. 355 ; 9 L. T. 615 ; 3 N. R. 232 ; 12 W. R. 195 ; 28 J. P. 212.] Property vested in the trustees of a building society was laid out according to a plan, and allotted or sold in lots to members or purchasers, who were aware of the existence of the plan before the trustees executed conveyances to them, and who entered in the respective conveyances to them into certain restrictive covenants with the trustees of the society, the necessity for the insertion of which was well known to everyone having dealings with the society one of such covenants in particular being to the effect that the restrictive covenants in question should not only enure to the benefit of the persons for the time being entitled under convey- ances to be thereafter made by the covenantees, but that the covenantees should be deemed to be trustees of the covenants for the benefit of the persons for the time being claiming under any conveyances already made by the trustees of the society. A bill being filed by a purchaser from an allottee against another person standing, in respect of the society, in a similar position to himself, as the sole Defendant thereto, and seeking to have the benefit of the restrictive covenants entered into by the Defendant, and an injunction to restrain him from building in alleged contravention thereof, and a mandatory injunction to compel him to take down buildings already erected by him in alleged contravention thereof, and for damages : Held, that the trustees of the society were necessary parties to the suit, and, sernble, that the other allottees and purchasers ought also to be represented in it. Per the Lord Justice Knight Bruce 1. Whether the body of restrictive covenants taken together was not of such a character as, independently of delay and of acquiescence, to exclude any .remedy by injunction under them : Qacere, 860 EASTWOOD V. LEVER # DE O. J. & 2. It not being possible to sue the Defendant at law on the restrictive covenants, it might be the duty of the Court, in the event of the Plaintiff having lost his right to an injunction by reason of his delay in instituting the suit, to inquire what, if any, damages he had sustained by the Defendant's acts in contravention of the covenants, and to provide for the payment of the amount of them, if any : Semble. Per the Lord Justice Turner 1. Whether the Defendant ought to be bound by the general plan : Chum. 2. The Plaintiff had an equity against the Defendant by reason of the particular restrictive covenant above specified, of which breaches of duty on the part of the trustees of the society would riot deprive him. 3. That in the particular case the Plaintiff had lost his right to an injunction by acquiescence ; but, semble, that be might be entitled to damages under Sir Hugh Cairns's Act, 21 & 22 Viet. e. 27. This was an appeal by the Defendant Samuel Lever from a decree of the Vice-Chancellor of the Duchy Court of Lancaster, the purport of which is stated below. The case stated by the bill was in substance this :ùThat a building society at Liverpool, established for enabling members to receive the amount or value of their shares (115] for the purpose of purchasing or erecting dwelling-houses or land in the neighbourhood of that town had, sometime prior to the filing of the bill in the suit, purchased an estate in that neighbourhood, taken a conveyance of the estate to their trustees, Francis Malcolm, Matthew Rourke and Roger Pierce, and laid it out in streets and divided it into plots according to a plan prepared under the direction of the committee of the society ; that according to this plan several of the plots were to front the turnpike road leading from Liverpool to Prescot, and Lots 3 to 72 were to front a street called Fairfield Street, and all the houses built on those plots were to have their fronts facing Fairfield Street ; that members of the society and those purchasing from them, including the Appellant, were (and the fact was not disputed) fully aware of the existence of the plan before any plot was conveyed to them by the trustees of the society, and...
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...there was no cause of action at law. As early as 1863, Turner L.J. himself had recognised the potential effect of Lord Cairns' Act. In Eastwood v Lever (1863), 4 De G.J. & S. 114 he pointed out that the Act had empowered the Courts of Equity to award damages in cases where the common law co......
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