Fenwick v Potts
| Jurisdiction | England & Wales |
| Judgment Date | 27 June 1856 |
| Date | 27 June 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 485
BEFORE THE LORDS JUSTICES.
See In re Beetham, 1886, 18 Q. B. D. 383.
[506] fknwtck . potts. Before the Lords Justices. May 28, 30, 31, June 2, 3, 27, 1856. [See In re Beetham, 1886, 18 Q. B. D. 383.] A testator, after the Apportionment Act, 4 Will. 4, c. 22, devised freehold lands to two trustees, their heirs and assigns, upon trust, to pay thereout to his widow an annuity for her life, and after her decease, then upon trust for A. and B., their heirs and assigns, as tenants in common. Held, that the legal estate in the trustees was not restricted to the life of the widow. One of two executors and trustees who had in their possession title-deeds of an estate of which their testator and a debtor to his estate had been tenants in common, requested the debtor to allow the executor to retain the title-deeds as a security for the debt. The debtor wrote an answer, saying, that the executor might retain the deeds till the debtor got the whole of his affairs settled with the executors, and that he was endeavouring to arrange so as to buy or sell the property. Held, a good equitable mortgage for the debt. A father-in-law who paid a mortgage debt secured on his son-in-law's property and took a receipt from the mortgagee, in which the mortgagee agreed to reconvey the property when required : Held, not to have shewn an intention to exonerate the property. This was an appeal from the decision of Vice-Chancellor Stuart in a foreclosure suit holding the Plaintiffs entitled to the benefit of a charge claimed by the bill in priority to Edward Henderson Potts, one of the Defendants, under the following circumstances :- In 1826 John Chambers and his sister Mrs. Potts were entitled as tenants in common in fee to hereditaments in Newgate Street, Newcastle-upon-Tyne, in the pleadings and correspondence called the Whitecross property. By indentures of the 25th and 26th of September 1826, Mrs. Potts mortgaged her share to William Hogg for 600. Mrs. Potts died on the 20th of January 1830, leaving John Potts, one of the Defendants, her heir at law, and on the 6th of September 1831 John Chambers paid to William Hogg the principal sum of 600, together with the interest then due on the mortgage; and one question of fact in the suit was whether he did so by way of exonerating the estate from the mortgage for the benefit of his son-in-law John 486 f EN WICK V. POTTS 8 DE 0. M. & 0. B07. Potts, or whether he intended to keep the mortgage alive, no transfer of the security having been taken in Mr. Chambers's lifetime, and he having [507] taken from Mr. Hogg a receipt containing an agreement to "reconvey" the share when required. John Chambers by his will, dated the 3d of August 1837, appointed William Lee and Robert Thompson his executors, and devised all his freehold messuages, tanyard and hereditaments situate in Newgate Street, Newcastle-upon-Tyne, unto William Lee and Robert Thompson, their heirs and assigns, upon trust to pay thereout to the testator's wife Ursula Chambers an annuity of 50 for her life, and after her decease then upon trust for William Lee and the Defendant John Potts, their heirs and assigns, as tenants in common; and the testator gave all his residue of his estate and effects, after payment of his legacies and debts, unto William Lee, his heirs, executors, administrators and assigns. Mr. Chambers died on the 18th of January 1839, and on the 25th of May 1839 his will was proved by William Lee and Robert Thompson. Ursula Chambers died on the 12th of September 1839. William Lee died on the 2d of November 1841, having by his will, dated the 16th of October 1841, bequeathed the residue of his personal estate and effects unto his widow Jane Lee and the Plaintiff John Fenwick, their executors, administrators and assigns, upon trusts therein mentioned; and he appointed Jane Lee and John Fenwick his executrix and executor. James Wilkin the other Plaintiff was subsequently appointed under a power in the will a new trustee. William Lee was at his decease a creditor of John Potts for two sums of 900 and 166, 12s. lOd. [608] After the death of William Lee John Fenwick requested John Potts to give to the trustees of the will of William Lee a mortgage for the debts of 900 and 166, 12s. lO^d., but John Potts refused to do so. At length, on the 5th of June 1847, the Plaintiff John Fenwick wrote the following letter to John Potts :- "Newcastle-upon-Tyne, 5th June 1847.-Dear Sir,-I fully expected to have had the pleasure of seeing you to-day, as the parties are very urgent. Do write a note to me and say that I may retain the deeds of the Whitecross property as a security for Mr. Henderson's note and the shop bill until the mortgage deed is executed, as this may satisfy parties in the meantime.-I am, clear Sir, yours truly, john fenwigk. "Captain Potts, Benton Park." John Potts answered as follows : "Benton Park, 7th June 1857.-Dear Sir,-You may retain the title-deeds of my property at the Whitecross, in Newcastle-upon-Tyne, in your hands until I get the whole of my affairs settled with the late Mr. Lee's executors.-Yours truly, john potth. " P.8.-I am endeavouring to arrange money matters so as either to buy or sell the property.-J. P." Before and at the date of these letters the Plaintiff John Fenwick had and still retained in his possession all the title-deeds of the entirety of the Whitecross estate. These deeds had been in the possession of John Cham-[509]-bers up to and at the time of his decease, and had then come into the possession of William Lee. At the death of William Lee they came into the possession of John Fenwick as one of the executors of William Lee's will. By an indenture, dated the 3d of January 1849, and made between William Hogg of the first part, Robert Thompson of the second part, and the Plaintiffs James Wilkin and John Fenwick of the third part, William Hogg assigned to the Plaintiffs James Wilkin and John Fenwick, "their executors, administrators and assigns, the said mortgage debt of 600...
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