Greenlaw v King
| Jurisdiction | England & Wales |
| Judgment Date | 06 July 1840 |
| Date | 06 July 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 19
ROLLS COURT
S. C. affirmed, 10 L. J. Ch. (N. S.), 129; 5 Jur. 18. Distinguished, Beaden v. King, 1852, 9 Hare, 521. See Guest v. Smythe, 1870, L. R. 5 Ch. 554 (n.).
[49] greenlaw v. king. July 4, 6, 1840. [S. C. affirmed, 10 L. J. Ch. (N. S.), 129; 5 Jur. 18. Distinguished, Beaden v. King, 1852, 9 Hare, 521. See Guest v. Smythe, 1870, L. R. 5 Ch. 554 (n.).] An Act of Parliament empowered a rector, with the consent of the bishop who was patron of the living, to raise "money by annuity for building a new rectory house, the plan and the accounts of which were to be approved of by the bishop. The bishop advanced the necessary money, and obtained a grant of an annuity, charged on the living. Held, though there was no unfairness, that the transaction, on principle, could not stand. A rector was empowered, by Act of Parliament, with the consent of the bishop, to raise money by way of annuity on lives, for the purpose of building a new rectory 20 GEEENLAW V. KING 3BBJLV.M. houae, and to charge the same on the rectory. The bishop himself advanced the money : the annuity was granted, and waa paid by the rector until his death ; the sums thus paid amounted to the sum advanced with lawful interest. At the suit of the succeeding rector, the transaction was set aside on the ground of the equitable incapacity of the bishop to become the purchaser of the annuity. Held, that the Plaintiff had a right to avoid the annuity altogether, and that the Defendant was not entitled to have it ascertained, what was a proper annuity to have been granted, and to charge the succeeding rector with his proportion thereof. The object of this bill was to set aside an annuity granted to a trustee for a former Bishop of Rochester, and secured, under the powers contained in a Private Act of Parliament, on the rectory of St. Mary, Woolwich; the ground on which it was impeached was, that the bishop filled a fiduciary character under the Act, and that it was, therefore, incompetent for him to contract for a charge upon the living. In 18191 Hugh Frazer was the rector, and the bishop, in right of his See, was the patron of the rectory of St. Mary, Woolwich, and by an Act passed in the forty-ninth year of King George the Third (local and personal, c. 88), intituled " An Act to enable the rector of the parish and parish church of St. Mary, Woolwich, in the county of Kent, for the time being, to grant building leases of the glebe lands belonging to the said rectory, and to sell the present rectory house and garden, and to build a new rectory house," after reciting that great benefit would accrue to the said rectory, and great convenience to the inhabitants of the said town, if power was given to the rector for the time being, to grant a lease or leases of the said glebe lands for a term of years, sufficient to encourage [50] persons to build upon and improve the same, and that it would be beneficial if permission were given to sell the then rectory house and garden, and to build a new rectory house; it was enacted, that the rector for the time being, should have power, " by and with the consent of the Bishop of Rochester for the time being," to lease the glebe lands for any term not exceeding ninety-nine years, at the best improved rent; and the rectory house and garden were thereby vested in the Rev. G. A. Hatch and Alexander Fraser, discharged of all estates, &c., of the bishop and his successors, and of the rector and his successors ; upon trust to sell and apply the produce towards building a new rectory house, of such dimensions and extent, and with such conveniences thereto as should be approved of by a plan, &c., under the hand and seal of the said Bishop of Rochester for the time being; and it was provided that such new rectory house should be built and finished to the satisfaction of the Bishop of Rochester for the time being, at a price not exceeding 3000; and if the monies arising from the sale should be insufficient for the purpose, the rector was authorized to take fines on granting leases, but so as such fines should not in the whole exceed 3000, and that the amount of every such fine should be approved of by the Bishop of Rochester for the time being. The powers of the above Act were enlarged by a subsequent Act of the 52 G. 3, whereby,, after reciting the sale of the rectory, the granting of building leases, and of the application of the produce (about 2100) in building the new rectory house, &c., and that there would still be wanting 2000 or thereabouts to carry the Act into execution, and that it would be advantageous to the present and future rectors if power was given to Hugh Fraser to borrow a sum of money by way of [51] annuity upon two lives, towards finishing the rectory, &c.; it was enacted, that it should be lawful for the rector for the time being by deed, &c., " by and with the consent of the Bishop of Rochester for the time being, to be signified by any writing under his hand and seal," to borrow any sum, not exceeding 2000, as might be necessary for completing the rectory house, &c., by the sale of one or more annuity or annuities, upon one or more life or lives, and to secure the payment of such annuity or annuities by a grant or charge upon the ground rents reserved under the leases already granted under the said Act of the 49 G. 3, or in case of the ground rents being insufficient, upon the rents and profits of the rectory. The produce so to be raised was directed to be invested in Exchequer bills, in the names of the trustees, and by them to be from time to time applied in finishing the rectory, &c. And it was thereby further enacted, that when and so soon as the new...
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