Hales v Cox
| Jurisdiction | England & Wales |
| Judgment Date | 26 January 1863 |
| Date | 26 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 46
ROLLS COURT
S. C. 8 L. T. 134; 11 W. R. 331; 1 N. R. 344.
[118] hales v. Cox. Jan. 21, 26, 1863. [S. C. 8 L. T. 134; 11 W. R. 331; 1 N. R. 344.] A. B. executed a voluntary settlement of real estate to uses in favor of his four children, and he covenanted that the estate should remain to those uses and for quiet enjoyment. A. B. afterwards mortgaged the settled estate with his own unsettled estates and died. Held, that the children were entitled to throw the mortgages on the unsettled estate, and, as against legatees, to prove under the covenants against the settlor's assets for the damage they had sustained by the mortgage. By a voluntary settlement, dated the 28th of November 1829, and executed shortly before his second marriage, Thomas Hales, in consideration of the natural love and affection which he had and bore towards his four children by his first 32BEAV.119. HALES V. COX 47 marriage, conveyed certain hereditaments to trustees upon trust, out of the rents, to retain the yearly snm of £120 and apply it in maintaining and educating the four children, and to permit T. Hales to receive the residue of the rents for his life, and after the decease of T. Hales, on trust to stand seised of the hereditaments to the use of the four children and their children. By the same indenture, [119] T. Hales covenanted with the trustees for himself, his heirs, executors and administrators, that the hereditaments should remain to the aforesaid uses, for quiet enjoyment by the trustees and for further assurance. In 1840 Thomas Harding Hales, one of the four children, became bankrupt, and his father, T. Hales, purchased his share in the hereditaments from his assignees, which was conveyed to him in April 1841. By certain indentures, dated in 1845 and 1853, T. Hales mortgaged the settled property, together with other property, and gave to the mortgagees a power of sale. Afterwards, in 1857, Thomas Hales conveyed the share he had purchased from his son's assignees far the benefit of Thomas Harding Hales and William Hales. Thomas Hales died in 1860. After hia death, the mortgagees, under their power, sold the whole of the mortgaged property for £11,148, and after retaining the mortgage debt and interest, there remained a surplus of £4961 of the purchase-money. The sum of £8025, 5s. represented the produce of the real estate settled by the deed of 1829. The Chief Clerk's certificate found that the parties entitled...
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