George James Marquis of Cholmondeley, and The Honorable Ann Sey-Mour Damer -Appellants; Robert Cotton St. John Lord Clinton, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1821 |
| Date | 15 June 1821 |
| Court | High Court of Chancery |
English Reports Citation: 4 E.R. 721
COURT OF CHANCERY.
Mews' Dig. iii. 216; ix. 1491; xiv. 1735. S. C. 2. Mer. 171. 2. Jac. and W. 1. Adopted in Pearce v. Morris, 1869, L. R. 5 Ch. 227, at p. 230; Warner v. Jacob, 1882, 20 Ch. D. 220, at p. 221; Farrar v. Farrar's Lim. 1888, 40 Ch. D. 395, at pp. 410-411; Soar v. Ashwell [1893] 2 Q. B. 390, at p. 397.
REPORTS OF CASES heard in the House of Lords, upon Appeals and Writs of Error, and decided during the Session 1821. By richard bligh, Barrister - at - Law. Vol. IV. ENGLAND. . court of chancbby. GEOKGE JAMES Marquis of CHOLMONDELEY, and The Honorable ANN SEYMOUR DAMER - Appellants; ROBERT COTTON ST. JOHN Lord CLINTON, and Others,-Respondents [15th June 1821]. [Mews' Dig. iii. 216 ; ix. 1491; xiv. 1735. S. C. 2. Mer. 171. 2. Jac. and W. 1. Adopted in Pearce v. Morris, 1869, L. R. 5 Ch. 227, at p. 230; Warner v. Jacob, 1882, 20 Ch. D. 220, at p. 221; Farrar- v. Famvr's Urn. 1888, 40 Ch. D. 395, at pp. 410-411; Soar v. Ashwett [1893] 2 Q. B. 390, at p. 397.] S. R. devised lands, etc. (subject to' a. term of 200 years, for raising a portion) to the use of his daughter M. for life, remainder to the use of her first and other sons in tail male, remainder to- his cousin J. R. in tail, etc.; and died, leaving his daughter M. his heir at law, who married and had one son G. Earl of 0., who upon the death of his mother entered as tenant in tail under the will of his grandfather, and suffered a recovery to the use of himself in fee, and by deed in 1781, reciting " that he was willing and desirous that the said estate should remain in the family and blood of S. R.," in consideration of " the natural love and affection which he bore to his relations, the heirs of S. R. ', and to the intent that the estates might continue in the family and blood of his late mother, on the side of her father," limited the lands, [2] etc. to the use of himself for life, remainder to the heirs of his body, and for default of such issue, to such persons as he should appoint; and for default of appointment, " to the use of the right heirs, of S. R.," with a general power of revocation and new appointment. In 1724 the term was assigned upon mortgage to raise the portion. By deed in 1785 G. executed to E. H. a mortgage in fee. The term of 200 years was assigned on the same occasion. On the 5th of December, 1791, G. died without issue, leaving H. Earl of 0. his uncle and heir at law. Upon the death of G. C. entered, claiming as the then right heir of S. R. under the limitation in the deed of 1781. Shortly after the death of G. opinions of counsel were taken by H. as to the effect of the deed of 1785 upon the deed of 1781, and he was advised that it operated only as a revocation pro tanto. In 1792, C. proposing to raise money by further mortgage, and also to make family settlements, conveyed the lands, etc. to1 trustees for those purposes, and the lands, etc. were by a subsequent deed appointed and limited accordingly. But the proposed mortgagees not being satisfied with the title of C. under the limitation in the deed of 1781, H. Earl of 0. was applied to by C. on account of the doubts which had arisen with regard to the effect of the deed of 1785, 721 IV BLIGH. CHOLMONDELEY U CLINTON [1821] as a revocation of the settlement of 1781, and thereupon H. executed a deed in 1794 by which reciting the several deeds of 1781, 1785, and 1792, and the doubts which had arisen, and that H. being well satisfied that Earl G. did not intend to alter the uses of that settlement, he had agreed to confirm the same ; it was witnessed, that the Earl H. " did grant, bargain, sell, release, and confirm " to the trustees of C.'s settlement of 1792, upon the trusts of that settlement " iu the same manner as if the deed of 1785 had not been made, and to and for no other use, intent, or purpose whatever." Earl H. died in 1796, leaving A. his heir at law, and also heir at law of Earl G., and having devised his real estates to' B. C. died in 1798, and upon his death his eldest son entered under the settlement of 1792. In June, 1812, a bill was filed in Chancery by A. and B. jointly as heir at law and devisee of Earl H., stating an agreement between them to share the lands, etc. equally, and praying a [3] redemption and reconveyance, and (as against C. the son) an account of rents and profits. Upon the original hearing in the Court below, it was adjudged, first, upon the construction of the settlement of 1781, that the remainder " to the use of the right heirs of S. R.," vested in the settlor, as himself the right heir of S. R. at the date of the settlement; secondly, that the deed of 1794 did not operate a confirmation except for the limited purpose expressed by the recital; and, lastly, that the length of time, viz. upwards of twenty years, since C. entered, was no bar by the operation of or analogy to the statute of limitations. It was also adjudged, that Sir L. P. having advanced money to C. by way of mortgage, should not be permitted to avail himself of that security as against the Plaintiff, upon the ground either of want of notice or of acquiescence. But as to the effect of the limitation in the deed of 1781, a case was sent to a court of law and a certificate was returned, in which three of the Judges concurred with the Master of the Rolls, and one differed from him. Upon this certificate the case being brought before the Court upon the equity reserved, the bill was dismissed; and upon appeal the decree was affirmed, upon the ground that the equity (if any) of the Plaintiffs was barred by length, of time and adverse possession. If a party has by his own act put a construction upon a deed, whether he or a fortiori those who claim under can dispute that construction. Qu. D. Redesdale. An heir cannot sue in equity by analogy to- a writ of right, or so as not to be barred by a limitation of less than sixty years. If the heir proceeds, by ejectment, he is barred by twenty years adverse possession; and it seems that this analogy is adopted in equity. D. Redesdale. Between co-Plaintiffs having adverse rights there can be no decree. If the heir and a devisee are co-Plaintiffs in a suit seeking a redemption of lands in mortgage, there can be no decree upon, a bill so framed. D. Redesdale. If a deed has a legal effect contrary to the intention of the grantor, and a party having an interest under the deed, according to its legal effect, proceeds upon the supposed intention to permit acts which create rights in the property, whether he can obtain relief in equity to the prejudice of the rights so enacted. Qu. D. Eldon. An agreement made by parties out of possession to proceed in [4] a court of equity to recover and to divide lands, etc. when recovered, is contrary to the policy of the law as well as the statute of Hen. 8. against pretensed titles. D. Eldon C. Whether a court of equity can entertain a bill stating such an agreement. Qu. D. Eldon C. If a deed is produced as matter of defence, and it appears that it has an effect beyond what was intended, it is not necessary to file a bill to reduce it. D. Eldon C. If a deed is executed which does not effectuate the intention of the grantor, and parties who claim under it act under a common mistake that A. is the supposed grantee, and A. creates incumbrances upon the land supposed to be granted, 722 CHOLMONDELEY V. CLINTON [1821] IV BLIGH. whether it is not a bar to relief in equity, and whether relief will be granted after such transactions and a lapse of time. Qu. D. Eldon C. Acts done by a trustee or termor for years cannot ha,ve the effect of adverse possession. But the rule does not apply to the case of mortgagor and mort-gagee. D. Eldon C. A mortgagee in possession keeping no account, and making iiO' acknowledgment, becomes owner of the estate after the lapse of twenty years. D. Eldon C. Adverse possession, as against an equitable estate, may create or defeat a right where the possessor has no duty to discharge for the party against whom possession is pleaded. D. Eldon C. The effect of adverse possession cannot be suspended during the continuance of long te'irns O'f years. D. Eldon C. If a deed of confirmation is executed under a mistake, and the party confirming being dead, there is a probability from circumstances that he wo-uld not, or a doubt whether he could have raised any question upon the mistake, it is doubtful whether a court of equity would permit parties claiming under him to take advantage of the mistake. I). Eldon C. Adverse possession of an equity of redemption for twenty years is a bar to any other claim of the equity of redemption, producing the same effect as abatement, intrusion, and disseisin with respect to legal estates. D. Eldon C. Title of entry in equity is by writ o f subpoena. In June, 1811, a bill was filed on behalf of the Appellants in the High Court of Chancery. The facts stated were as follows: [5] By indentures dated in 1704, manors, etc. of Samuel Rolle in Devon and Cornwall and Dorset were settled to the use of Samuel Rolle for his life; remainder to trustees, etc. to preserve, etc.; and after the decease of Samuel Rolle, to the use of the said trustees for the term of 200 years, upon trust to raise iu,000 as a portion for a daughter; remainder to sons successively in tail male; remainder to the use of Samuel Rolle, his heirs, etc. Samuel Rolle had issue by the marriage only one daughter, Margaret, and by his will, dated in 1717, devised the fee-simple of the estates to his wife dura/nte viduitate; remainder to trustees and their heirs, to the use of the sons of his body in tail male in succession; and for default of such issue, to the use of his daughter Margaret for her life; remainder to trustees to preserve, etc.; remainder to children of his daughter as she should appoint; and for default...
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