Gresley v Mousley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1859 |
| Date | 01 January 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 31
BEFORE THE LORDS JUSTICES.
S. C. 28 L. J. Ch. 620; 5 Jur. (N. S.), 583; 7 W. R. 427.
4DEB. *J.7l GRESLEY V. MOUSLEY 31 [78] gresley v. mousley. Before the Lords Justices. Feb. 22, 24, 26, 28, April 29, 1859. [S. C. 28 L. J. Ch. 620; 5 Jur, (N. S.), 583; 7 W. R. 427.] A person, who has sold an estate under circumstances which entitle him in equity to have the sale set aside, has in the estate an interest of such a nature as to be devisable even by a will made before the passing of the Wills Act. Purchase by a solicitor from his client set aside under the circumstances on a bill filed twa years after the death of the solicitor, and nearly eighteen years after the death of the client. The rules of equity as to a purchase by a solicitor from, his client, and the operation of lapse of time upon the right to relief in respect of such a transaction, considered. This was an appeal by the representatives of William Eaton Mousley, a solicitor, from a decree of Vice-Chancellor Stuart, setting aside a purchase made by their testator from Sir Roger Gresley deceased. The purchase in question was made in 1837. At that time Mr. Mousley was and for many years had been the solicitor, agent and confidential adviser of Sir R. Gresley, and had raised money for him on mortgage, and acted as receiver of his rents. Sir R. Gresley was a gentleman of large property, which, however, was much incumhered; and at the time of the transactions in question, although he was very far from being insolvent, he was in somewhat embarrassed circumstances. There was no evidence of any written contract for the purchase, nor of any negotiation between Sir R. Gresley and Mr. Mousley with reference to it. The transaction was completed by an indenture of release dated the 18th of February 1830, grounded on a lease for a year and made between Sir R. Gresley of the first part, W. E. Mousley of the second part, and John Mammatt (a trustee for Mousley) of the third part, and it contained the following recitals " whereas the said Sir Roger Gresley is entitled in fee-simple in possession to the several manors hereinafter mentioned, &c., and also to the several cottages and pieces of land respectively built upon and enclosed from certain commons or waste grounds belonging to the same manors ; and whereas the said Sir Roger Gresley was lately entitled in fee-[79]-aimple in possession to the closes, pieces or parcels of land and hereditaments described in the two several schedules to these presents, which said closes, &c., comprised in the said first schedule hereto were in or about the year 1825, and which said closes, &c., comprised in the said second schedule hereto were in or about the year 1827, sold and conveyed by the said Sir R. Gresley to various persons, but in the several and respective conveyances thereof were excepted and reserved to the said Sir R. Gresley, his heirs and assigns, all mines and beds of coal, ironstone and other minerals in, upon or under tha same, with all powers and liberties requisite or necessary for working the said mines^ and for discovering, raising, procuring, or carrying away the said coal, iron, &c., subject nevertheless to the payment of such surface rents as in such conveyances are particularly mentioned; and whereas the said Sir R. Gresley has contracted with the said William E. Mousley for the absolute sale to him of the said manors, cottages, &c., with their rights, members and appurtenances, and of the mines, beds of coal, &c., so excepted or reserved to him as aforesaid, with all such several powers and privileges as aforesaid, and also of all or any other mines, beds of coal, &c., to which he the said Sir R. Gresley is entitled, as part of the manors aforesaid, or any of them, at or for the price or sum of £6940." Then the operative part began in the form of an ordinary purchase deed-in consideration of £6940 mentioned to be paid, the receipt of which was acknowledged in the ordinary form, and the parcels were "all those the manors or lordships, or reputed manors or lordships of Gresley, Church Gresley, Castle Gresley, Swathingcote, otherwise Swadliiigcote, Newton, Newhouse Heathcote, Harcott, otherwise Hercott, Linton Dalthorpe and Denisthorpe, in the said county of Derby, and also all those the several pieces [80] or parcels of land, containing together by estimation forty-five acres or thereabouts, which were formerly part of certain commons or waste grounds within and belonging to the said manors, or some or one of them, but which have been inclosed therefrom ; and also 32 GRESLEY V. MOUSLEY 4DEO.4T.ffl. all those the several cottages which have been built upon the same pieces or parcels of land, or on some part or parts thereof; and also all those the mines, beds of coal, &c., which are upon or under the same closes, &c., respectively comprised and described in the two several schedules to these presents, and which upon the sale and conveyance of the same closes, &c., were so excepted and reserved to him the said Sir E, Gresley, his heirs and assigns, or to which he is entitled as lord of the aforesaid manors, or any or either of them; and also all the powers and privileges excepted and reserved to, and now vested in, the said Sir E. Gresley for working the said mines, and for discovering, raising, procuring and carrying away the said coal, &c. ; and also all other (if any) the mines, &c., to which he the said Sir E. Gresley is entitled inf upon or under all such lands or hereditaments comprised in certain indentures of lease and release, bearing date respectively the 8th and 9th days of October 1773, being a conveyance from Hugh Reynell, Esq., to Wilmott Gresley, as are not comprised in the two several schedules to these presents, or one of them." Then followed the usual general words, and the uses of the conveyance were the ordinary uses to bar dower for the benefit of Mr. Mousley, his heirs and assigns ; and then followed the usual purchase covenants on the part of a vendor legally and equitably seised in fee. The schedules to the deed described lands containing in all about 480 acres, but the coal under thirty acres belonged in fact to the Marquis of Hastings. The com-[81]-mon contained about 110 acres, but Sir E. Gresley had previously sold the mines under thirty acres of it to Court Granville. A receipt for the purchase-money of £6940 in the usual form was indorsed on the deed, signed by Sir E. Gresley, and witnessed by T. Hamilton and J. H. Mousley, a son of W. E. Mousley. Another deed of the same date and expressed to be made between Sir E. Gresley and W. E. Mousley was executed by Sir E. Gresley. This deed recited among other things the above conveyance, and an existing mortgage to Samuel Maltby for £12,000, and Sir E. Gresley thereby covenanted with W. E. Mousley, his heirs, executors, administrators and assigns, that he the said Sir Eoger Gresley, his heirs, executors or administrators, should within six calendar months from that day procure the legal estate in fee-simple of and in the manor of Church Gresley aforesaid to be well and effectually conveyed, freed and discharged from the said mortgage debt of £12,000, and the interest thereof, to the subsisting uses of the above-mentioned conveyance. And that Sir E. Gresley, his heirs, executors or administrators, should in the meantime well and effectually keep indemnified W. E. Mousley, his appointees, heirs, executors, administrators or assigns, from and against all actions, &c., and all costs, damages, &c., for or by reason or on account of the mortgage debt, and the interest thereof, or any part thereof respectively, or for or by reason or on account of any matter or thing in anywise relating or incidental thereto. This deed was executed by Sir Roger Gresley, and attested by J. H. Mousley. By a will made in May 1837, Sir E. Gresley devised all the real estate of which, as owner, or in execution of [82] any power he was able to dispose by will, to the Earl of Chesterfield and the Marquis of Londonderry in fee upon trust to sell for payment of debts, and mortgages in aid of his personal estate, and subject thereto in trust to settle the same for the separate use of the testator's widow (now Lady Sophia des Vaaux) lor her life, and after her death to the use of the testator's children in tail as therein mentioned, with remainder to the use of the Eev. William Nigel Gresley for life, with remainder ta his first and other sons successively in tail male, with divers remainders over. The testator died in October 1837, and Mr. Mousley continued to be his solicitor up to his death. He died without issue. The Eev. William Nigel Gresley succeeded to the baronetcy and died in 1847, and the Plaintiff, who was his eldest son, attained his majority in 1852. In 1853 W. E. Monsley died, leaving a will, by which he devised, along with other property, the estate in question to the Defendants the Eev. W. E. Mousley and J. H. Mousley, upon certain trusts, and appointed them his executors. In 1855 the Plaintiff, who was not the heir at law of Sir R. Gresley, and had no claim to any estates of his except by virtue of the above devise, filed his bill, alleging that W. E. Mousley knowingly purchased the estate at an undervalue; that no part, 4DEO. ftJ. 83. GRESLEY V. MOTJSLEY 33 or at most only a small part, of the purchase-money of £6940 had been paid, and that the bulk of it had been retained by Moasley for costs. The bill prayed that .the conveyance might be declared fraudulent and allowed to...
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