Garrard v Lord Lauderdale
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1831 |
| Date | 11 February 1831 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 465
HIGH COURT OF CHANCERY
S. C. 3 Sim., 1; see Walker v. Jeffreys, 1842, 1 Hare, 354. Discussed, Glegg v. Rees, 1871, L. R. 7 Ch., 71. See Henriques v. Bensusan, 1872, 20 W. R., 351; Re, Sanders' Trusts, 1878, 47 L. J. Ch., 670. Followed, Johns v. James, 1878, 8 Ch. D., 744. See Henderson v. Rothschild, 1886, 33 Ch. D., 469; In re Fitzgerald's Settlement, 1887, 37 Ch. D., 19; Godfrey v. Poole, 1888, 13 App. Cas., 502; Ledbrook v. Passman, 1888, 57 L. J. Ch., 859. Not applicable, Priestley v. Ellis 1897, 1 Ch., 489. See New, Prance & Garrard's Trustee v. Hunting 1897, 1 Q, B., 607; 1897, 2 Q. B., 19; In re Harden Star, Lavis & Sinclair Co., Ltd. 1903, W. N., 64.
[451] garrard . lord lauderdale. Jan. 27, 29, Feb. 11, 1831. [S. C. 3 Sim., 1 ; see Walki'.r v. Jeffreys, 1842, 1 Hare, 354. Discussed, Gkf/g v. Itecf, 1871, L. R. 7 Ch., 71. See He,nri}iu* v. Bumuxan, 1872, 20 W. E,, 351 ; Re, Sawlers' Trusts, 1878, 47 L. J. Ch., 670. Followed, Johns v. James, 1878, 8 Ch. D., 744. See Henderson v. Rotttscltiltl, 1886, 33 Ch. D., 469 ; In -re Fitzyeiuld'x Settlement, 1887, 37 Ch. D., 19; Godfrey v. Poole, 1888, 13 App. Gas., 502 ; Leilbrook v. Passman, 1888, 57 L. J. Ch., 859. ' Not applicable, Priestley v. Ellin [1897], 1 Ch., 489. See New, Prance & Garrard's Trustee-v. Hunting [1897], 1 Q, B., 607; [1897], 2 Q. B., 19; In re Harden Star, Lavis & Sinclair Co., Ltd. [1903], W. N., 64.] A person by deed conveyed to trustees certain personal property, upon trust to sell the same, and after satisfying certain specified charges and claims in a prescribed order out of the proceeds, to divide the residue among his scheduled creditors, none of whom were parties or privy to the execution of the deed. The trustees, after partially executing the trusts by making sales and paying off the specified charges and claims in the order directed, concuiTed with the grantor in doing several acts inconsistent with the subsequent trusts : Held, that after the death of the grantor a scheduled creditor had no equity against the trustees to enforce the execution of 466 GARRARD V. LORD LAUDERDALE 2 RUSS. & M. 452. the trusts, the conveyance being in the nature of a private arrangement for the personal convenience of the grantor, and vesting no right in the creditors. The facts of this case, as they appeared upon the bill and answer, are fully stated in Mr. Simon's Eeport on the hearing of the motion before the Vice-Chancellor (3 Sim., 1). His Honour having refused the Plaintiff's application, it was now renewed before the Lord Chancellor. Mr. Knight and Mr. Rogers, for the motion. [462] Sir Edward Sugden, Mr. Pepys, Mr. Lynch, and Mr. Wigram, contra. The same general line of argument was followed by the counsel on both sides as had been taken in the Court below. The following additional cases were also cited and commented upon :-Stepluanxon v. Hai/ward (Free. Ch., 310); Sloan v. Ciulogan (Sugrl. V. & P., App. No. 26) ; Exparte Pt/e (18 Ves., 140) ; Pulmrtoft v. Puleertoft (18 Ves., 84) ; Expwtu Heywood (2 Eose, 355)'; Scott v. Porcher (3 Mer., 652). Feb. 11. the lord chancellor [Brougham]. This case was argued before mo at considerable length ; and as it was one which seemed likely to be of general importance from the frequency of such trust deeds for the payment of debts, and as it was strongly urged that the decision of the Vice-Chancellor was at variance with the current of authorities, I took time to consider my judgment, and I also procured a copy of the papers in the case of f-Fallwyn v. C'outln (3 Mer., 707, and more fully in 3 Sim., 14), on which case His Honour was said to have relied; but I see no reason for departing from the decision which was pronounced in the Court below. [His Lordship then stated the effect of the trust deed, and proceeded :]^This deed, though for a very meritorious purpose, must be considered as to all intents a voluntary conveyance, even assuming it to be in the strictest sense of the term a trust deed. Now it has been held, ever since the case of Leech v. Leech (1 Ch. Ca., 249), in [453] the time of Lord Nottingham, that a voluntary conveyance, though void as against a purchaser, is, nevertheless, good as against the representatives of the person who executes it; and I cannot, therefore, but doubt the accuracy of that part of the report of ffallwifn v. Couth, where Lord Eldon is represented to have said he refused the motion on the ground of the trust being voluntary, and, consequently, a trust which could not be enforced against the Duke of Marlborough and his son tho Marquess. Lord Eldon, who, in deciding Ettison v. Ellison (6 Ves., 656), had stated the principle so distinctly, and who again, and more recently, had deliberately recognised it in Puh'ertoft v. Pulivrtoft (18 Ves., 84), could hardly, I think, have so expressed himself. In the first of those cases his Lordship laid down what has ever since been the rule, taking the distinction between a trust executed, where a right vested, and a trust which rests injieri, not executed; and he said (in conformity with his own subsequent decision in Puh'ertoft v. Puleertoft), that when the deed was so executed, he would allow the ci'stui qut (runts to appear in Court, and would take notice of their existence, and enforce their rights both against the trustees and against the maker of the instrument; but that it was otherwise where the relation had never been fully established, the matter only resting in covenant; and that in such a case he would not interfere. The ground of this distinction between cases where the matter rests in fieri and those where the instrument is executed and the relationship of trustee and ceslui que trust created is somewhat obscure ; and perhaps a simpler course in the first instance would have been not to give effect to any voluntary conveyance [454] (whether executed or not), either against purchasers as to whom it would, of course, be void by statute, or against the grantor himself. But I am here to deal with the principles as I find them settled by the uniform tenor of decisions; and the rule, as laid down in Column v. So/ml (1 Ves., jun., 50), and afterwards adopted in Ellison v. Ellison,, and Pulvertoft v. Pulwrtoft, is not now to be controverted, that the relationship will not be established against the author of a voluntary conveyance, but that wherever the Court finds it already constituted, the relationship will be followed out and enforced. Is, then, IValhayn v. Oouttn inconsistent with those cases'? For it was strongly pressed upon me that that case could only be supported by overruling all the former authorities ; and it was further argued that fFathvyn v. Gmitts would be found to differ from them in this respect, that there the second deed was for consideration. If that 2 RUSH. & M. 488. FITZGERALD V. STEWART 467 had been the fact, the case, as I observed at the time, would have been utterly valueless-not worth the paper on which it was printed; for it would only have affirmed a, proposition which never was disputed, namely, that, as against a purchaser, a voluntary conveyance could not be enforced. It is satisfactory to find that...
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Between Robert Knight since deceased and His Executors by amendment, and Richard Tomkinson, Plaintiffs; and George Bowyer, John Thomas Groves and Emma, his Wife, Charles Pugh, The Rev George Frazer Mathews and Ann Martha, his Wife, late Ann Martha Bridger, Edward Kynaston Bridger, Wilson Lomer, Charles Bridger, Charles King, Alexander Donovan, Samuel Sturgis, William Whitfield, Harriett Huntingford (since dismissed), John Samuel Bowles, George Warner, The Rev. John Tunnard, Clerk, John Taylor, John Matthews, and Sir George Bowyer, Baronet, Defedants
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