Heather v O'Neil
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1858 |
| Date | 01 January 1858 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1044
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD AND THE LORDS JUSTICES.
S. C. 27 L. J. Ch. 513; 4 Jur. (N. S.), 957; 6 W. R. 484. See Jones v. Davies, 1878, 8 Ch. D. 213.
[399] heather v, o'neil. Before the Lord Chancellor Lord Chelmsford and the Lords Justices. March 4, 8, 9, 10, April 24, 1858. [S. C. 27 L. J. Ch. 513; 4 Jur. (N. S.), 957; 6 W. R 484. See Jones v. Dames, 1878, 8 Ch. D. 213.] Lands of a wife were settled to such uses as she and her husband should appoint, and subject thereto to the use of the husband for life, with remainder to the wife for 2DEG.&J.4M. HEATHER V. O'NEIL 1045 life, with remainder to the children of the marriage. Two days afterwards the husband and wife, in exercise of the power, appointed the lands to the use of trustees upon such trusts as the husband alone should appoint, and subject thereto in trust for the husband for his life, or till his bankruptcy, with remainder in trust for the wife for life, and after her death on the trusts declared by the former deed. Some months afterwards the husband executed a mortgage, reciting merely an agreement for a loan, and thereby appointed that the trustees should hold the lands upon trusts for sale, and securing the repayment of the mortgage-money, and subject thereto upon trust for the husband and his heirs. Held, by the Lord Chancellor and Lord Justice Turner, dissentiente Lord Justice Knight Bruce, that the equity of redemption was effectually re-settled, and belonged to the husband in fee. This was the appeal of the Plaintiff from the decision of the Master of the Rolls, dismissing with costs a bill which sought to have effect given to a limitation of the equity of redemption in a mortgage deed. In 1817 the property in question in the cause stood limited, subject to a life estate in Ann Armstrong in part of the property, to the use of her four daughters as tenants in common tail. One of these daughters married William Edward Heather. At the time of the marriage of Mr. and Mrs. Heather there was no settlement, nor any agreement for a settlement, but on the 23d and 24th of November 1817, a postnuptial settlement was made by indentures of lease and release, the latter being a deed to lead the uses of a recovery which was afterwards suffered. These uses were declared to be as to that portion of the lands in which Ann Armstrong had a life estate to her use for life, and as to all the lands and hereditaments (subject to this life estate in a part) to the use of such persons and for such estates as William Edward Heather and Mary Ann his wife should jointly by deed appoint, and in default of appointment to the use of William Edward [400J Heather for life, with remainder to the use of Mary Ann for her life, with remainder to the use of their children as they should jointly appoint. In default of appointment, the limitation was to the use of the children and their heirs as tenants in common. Two days after the date of this settlement, viz., on the 26th of November 1817, by a deed-poll executed by William Edward Heather and his wife, with the requisite formalities, they jointly appointed that the lands and hereditaments should stand limited to the use of Christopher Hunter and Isaac Cox and their heirs upon trust for such persons and for such estates and interests, and in such manner as William Edward Heather should by deed appoint, and, in default of appointment, upon trust, in case William Edward Heather should at any time during the life of his wife become bankrupt or insolvent, or should fail in business, or should suffer his lauds or goods to be taken in execution and to be sold, to pay the rents and profits to Mrs. Heather, or as she should appoint; and, until William Edward Heather should become bankrupt or insolvent, or suffer execution of his goods or lands, to permit him to receive the rents and profits during his life, and, after his death, to permit Mrs. Heather to receive the rents and profits for her life, and, after the death of the survivor, the trustees, Hunter and Cox, were to stand seised of the premises (of which no appointment should have been made) upon the trusts of the deed of the 24th of November 1817. On the 25th of March 1818, Mr. Heather executed an indenture of appointment and release, on which the question in the cause turned. It was made between himself, of the first part, Hunter and Cox, the trustees in the deed of the 26th of Novem-[401]-ber 1817, of the second part, Thomas Staples and John Cottom Wheeler, of the third part, and John Murch, of the fourth part. It recited the original will and the devolution of the title to Mrs. Heather and her marriage with Mr. Heather. The only other recitals were the following:-" And whereas by indenture of lease and release, bearing date respectively the 23d and 24th days of November last, the release between Ann Armstrong, of the first part, the said William Edward Heather and Mary Ann his wife, of the second part, William Dean, gentleman, of the third part, John Jenkins, gentleman, of the fourth part, and John Morgan, Esq., and the said William Dean, of the fifth part, and by a common recovery agreed to be suffered in pursuance thereof in or of Michaelmas term now last past, 1046 HEATHER V. o'NEIL 2DBO.&J.402. and a deed-poll or appointment bearing date the 26th day of November last, the hereditaments hereinafter particularly mentioned and described were limited and now stand settled and assured to the only and absolute use and behoof of the said Christopher Hunter and Isaac Cox, their heirs and assigns, for ever, upon the trusts, and to and for the ends, intents and purposes, and subject to the provisoes and conditions hereinafter declared or expressed concerning the same, that is to say, upon trust for such person or persons for such estate or estates, and for such interest or interests, and in such parts, shares and proportions, and upon such trusts, and to and for such ends, intents and purposes, and with, under and subject to such powers, provisoes) declarations and agreements, and in such manner and form, as the said William Edward Heather at any time thereafter, and from time to time, by any deed or deeds, instrument or instruments in writing, either absolutely or conditionally, and with or without power of revocation [402] and new appointment, to be by him sealed and delivered in the presence of and attested by two or more credible witnesses, should direct, limit or appoint the same, with such remainders over in default of appointment as in the said indentures are expressed. And whereas the said William Edward Heather hath applied to and requested the said Thomas Staples and John Cottom Wheeler to lend and advance the sum of 340 on the security of the said one-fourth part of the said money and the hereditaments and premises hereinafter particularly described, and it hath been agreed that the said premises shall be conveyed to the said John Murch upon the trusts hereinafter expressed." By the operative part it was witnessed that, in consideration of ,340 to William Edward Heather paid by Thomas Staples and John Cottom Wheeler, and also iu consideration of the sum of 10s. to Isaac Cox, Christopher Hunter and William Edward Heather paid by John Murch, William Edward Heather, by virtue and in exercise and execution of the power and authority to him given and reserved in and by the thereinbefore-mentioned deed-poll, and of all and every other power and powers, authority and authorities in him vested, or in anywise enabling him in this behalf, with the consent, approbation, direction and appointment of Thomas Staples and John Cottom Wheeler, testified by their being made parties thereto, arid executing thereof, directed, limited, appointed, granted, bargained, sold, released and conveyed, and Christopher Hunter and Isaac Cox, at the request and by and with the consent, direction, approbation and appointment of William Edward Heather, granted, bargained, sold, aliened and released the said fourth part or share comprised in the preceding deeds unto John...
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Atkinson v Smith
...be shewn; Cm-bett v. Barker (1 Anst. 138), Jackson v. Innes (16 Ves. 356; 1 Bli. 114), Ruscombe v. Hare (6 Dow. 1), Heather v. O'Neill (2 De G. & J. 399). The old uses therefore remained as regarded the equity of redemption, and the wife could not affect the estate without another fine. The......