Gilbertson v Richards and Others
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 1859 |
| Date | 24 February 1859 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 845
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 28 L. J. Ex. 158: affirmed 1860, 5 H. & N. 453
gilbertson o. richards and others. Feb. 24, 1859.-B being mortgagee in fee simple of certain lands, and the equity of redemption in fee belonging to Billings, by indenture of lease and release dated October 1838, between Billings of the first part, B. of the second part, T. of the third part, and H of the fourth part, Billings did limit and appoint, and B. conveyed to H , and Billings confirmed, the said lands, to have and to hold the same to H., his heirs and assigns, to the use of tL, his heirs and assigns, for ever, subject to a proviso for redemption by Billings, his heirs, &c., on payment of 50001. Amongst other provisoes there was one, that if default should be made in payment of the 50001, it should be lawful for H, his heirs and assigns, to sell. This deed contained a proviso for quiet enjoyment by Billings until default. Also the following:-" Provided always, and it is hereby expressly agreed and declared between and by the parties hereto, that if at any time hereafter, when and so soon as H. and every other person 846 GILBERTSON V. RICHARDS 4 H. & N. 278. claiming of to claim by, from, through or under him, shall, under or by virtue of any power or authority herein container!, enter into or upon or otherwise become possessed of the said premises, or any part thereof, the same shall from thenceforth be sebjected and be charged to and with the payment to Billings and his assigns of the annual sum of 401.; and the same shall thenceforth be recovered or recoverable by distress or otherwise upon or out of the mortgaged premises " Tkis conveyance was executed by B. and Billings, but not by H. Default having been made in payment, H. entered into possession for the purpose of exercising the power of sale. And by indenture, dated in 1847, he conveyed to one A. T, who entered into possession of the lands and duly paid the 401. rent.-Held .- Fust, that the charge of the rent of 401. a year was not a good reservation of a rent, inasmuch as it was in favour of a person not having a legal estate in the laad.-Secondly That there was no creation of a rent charge good at common law, because the releaaee in fee simple did not execute the deed of 1838.-Thirdly. That the rent was well created by way of use under the statute.-Fourthly. That the declaration of this use, though after the limitation of the estate to H. and his heirs and assigns, to the use of H, his heirs and assigns, was not open to objection as being a use upon a use.-Fifthly. That, assuming that the rent might arise at any time however distant, the limitation was not void for remoteness as tending to a perpetuity. [S. C. 28 L. J. Ex. 158: affirmed 1860, 5 H. & N. 453 ] This was an action of replevin to try the defendants' right to distrain the plaintiff's goods on certain lands for [278] the alleged rent charge of 401. hereinafter mentioned. By order of a Judge, the following case was stated for the opinion of this Court, without pleadings:- By lease and release, dated the 27th and 28th of March, 1833, certain hereditaments were conveyed to such uses as Thomas Billings by deed should appoint, and in default of such appointment to the use of Thomas Billings for life, with the ultimate remainder to the use of Thomas Billings, his heirs and assigns, for ever The said lands and hereditaments comprised (amongst others) the lands and hereditaments so distrained upon. By indentures of appointment and release, dated the 12th and 13th of April, 1833, the hereditaments conveyed to Thomas Billings by the indentures of the 27th and 28th of March, 1833, were appointed and released unto and to the use of John Howard, his heirs and assigns, as a trustee for G. Crook, for ever, to secure the said G Crook the repayment of 30001., and subject to redemption thereof on payment by Thomas Billings of the said sum, and with a power of sale upon default. Thomas Billings, being equitably entitled to the said hereditaments subject to the mortgage, by articles of agreement (to which neither the said mortgagee nor his trustee were parties) dated the 1st of February, 1837, in consideration of 80001 to be paid as therein meetioned, agreed to sell, and P. Thompson, H. Trye and J. Baron agreed to purchase, the inheritance in fee simple of the hereditaments distrained upon, together with the rights of way, &c.: subject to the payment by the said P. Thompson, H. Trye and J. Baron, their heirs and assigns, on the 1st of January in each year, of the sum of 401 towards the expense of keeping certain roads in repair And Thomas Billings, for himself, &c, covenanted with P Thompson, H Trye and J Baron, their heirs, &c., that he, his heirs or assigns, [279] would forthwith stone and gravel the roads, &c., and so long as the said sum of 401. should continue to be paid keep the same in good order. And, further, that in case the said sum of 401., or any pait thereof, should be in arrear, it should be lawful for Thomas Billings, his heirs, &c , to enter upon the land thereby agreed to be sold and take a distress for the said rent so in arrear, and the satqe to sell and dispose of, and otherwise to act in the premises as a landlord distraining for rent under a common demise is by law entitled to do. A pprtion of the 80001 was paid, but otherwise the provisions of the said articles of agreement have not been carried out, except as hereinafter appears; and the purchase and aale have long since been abandoned. By lease and release, dated the 1st and 2nd days of March, 1838, John Howard, at the request and by the direction of George Crook, conveyed, and Thomas Billings confirmed, to Lewis Bythesea the hereditaments comprised in the indentures of the . 280. GILBERTSON 1'. RICHARDS 847 27th and 28th of March, 1833, in fee simple, but subject to the proviso for redemption by Thomas Billings in such release contained. The release contained the usual proviso for the enjoyment of the land by Thomas Billings until default in payment By lease and release, dated the 24th and 25th of October, 1838, made between Thomas Billings of the first part, Lewis Bythesea of the second part, the said Thompson, Trye and Baron of the third part, and the said John Howard, D. Latimer and J. Bolton of the fourth part, after reciting that part only of the said purchase money for the said land had been paid, and that Thomas Billings, being in want of 50001., had, with the consent of the said Thompson, Trye and Baron, applied to the said J Howard, D. Latimer and J. Bolton to advance and lend him the sum of 50001. upon mortgage of the said lands, &c, which [280] they had agreed to do , and reciting also that Thomas Billings had requested Lewis Bythesea to release and assure such parts of the hereditaments comprised in the indenture of the 2nd of March, 1838, as were comprised m the agreement of the 1st of February, 1837, discharged from the said mortgage debt or sum of 30001., which he had agreed to do . in consideration of 50001. to Thomas Billings paid by John Howard, D. Latimer and J. Bolton, Thomas Billings, with the privity of Thompson, Trye and Baron, did limit and appoint, and the said Lewis Bythesea bargained, sold, and released, and Billings, with the consent of Thompson, Trye and Baron, baigained, sold, released and confirmed, to the said J. Howard, D Latimer and J. Bolton, the lands and hereditaments distrained upon as aforesaid, to have and to hold the same unto the said John Howard, D. Latimer and J. Bolton, their heirs and assigns, to the use of the said John Howard, D Latimer and J. Bolton, their heirs and assigns, for ever. In the release last mentioned was contained a proviso for redemption by the said Thomas Billings on payment of 1251 for interest on the 25th of April, &c., and 51251., principal and interest, on the 25th of October, 1839. The said release further provided that, if default should be made in payment by the said Thomas Billings of the interest as therein mentioned, it should be lawful for the mortgagees to enter and distrain for the interest, and that if default should be made in payment of the principal, and after six calendar months' notice in writing should have been given by the mortgagees to the said Thomas Billings as in the said release mentioned, they should be at liberty to make sale and dispose of the...
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