Hele v Lord Bexley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 936
ROLLS COURT
S. C. 11 Beav. 537; 22 L. J. Ch. 1007.
(jl4] hele v. lord bexley. Jan. 28, Feb. 8, 9, 10, April 15, 1853. i [S. C. 11 Beav. 537; 22 L. J. Ch. 1007.] A tenanlf by elegit took a conveyance of part of the lands extended, in satisfaction of part cjf his debt. Held, that his tenancy by elegit on the rest of the lands was extinguished and that his judgment was satisfied. A creditor issued three elegits on three several judgments, and extended the lands of his debtor; he afterwards took a conveyance of part of them. On a question whether the tenancy by e.legil had been wholly extinguished and the judgment satisfied, the creditor insisted that it had not been shewn that the writs of elegit had been duly returned, and that no evidence had been given, to shew in respect of which elegit the lands conveyed had been extended. But Held, that the onus of proof was on the creditor, he being bound to make out that he was a subsisting incumbrancer; and, secondly, that as it was his duty to have caused a proper return to be made and filed, he could not take advantage of his own omission. A creditor issued three eUgits under three judgments, and the sheriff, by virtue of the first two, extended the whole of a leasehold estate, and returned nil to the third. The first two judgments being adjudged to have been satisfied at the time, Held, that the creditor had acquired no rights under his elegits. A. D. being entitled to three annuities secured by covenant and judgment, received for twenty years part of the rents of the grantor's estates under ekgits issued on satisfied judgments. Held, that he was not accountable for his receipts to a party having a charge on the estate who had taken no proceedings to obtain possession. The first question, on these exceptions, arose under the following circumstances: -Sir George Bowyer, [15] being tenant for life of the greater part and tenant in fee of the remainder of the Radley estate, and tenant for life of leaseholds called Sunningwell, granted, on the 10th, 15th, and 25th of March 1814, respectively, three 17BBAV.18. HELE V. LOED BEXLEY 937 several life annuities of 500, 333, and 460 to Donovan. The considerations paid for them respectively were 3000, 1998, and 2760, and they were severally secured by the covenant and by judgments, for 6000, 3996, and 5520 entered up upon warrants of attorney. Sir George Bowyer afterwards, in June 1814, granted six other annuities secured on the Eadley estate, and he appointed a receiver to secure them. On the 8th of May 1815 Sir George Bowyer granted to the Plaintiff Hele an annuity of 700 a year secured on the Eadley and Sunningwell estate, and, in 1815, he conveyed that estate to Howe in trust to sell and apply the produce in payment of his creditors. Afterwards, on the 5th of September 1816, Donovan issued three writs of ele-git on his three judgments, returnable on the first day of Hilary term 1817, which were directed to the Sheriffs of Berkshire, where both properties were situate. The sheriff extended and delivered one moiety of the Eadley estate under the judgment for 5520, and the other moiety under the judgment for 6000, and he returned nil to the third. Donovan, however, did not immediately obtain possession of the Eadley estate, of which the receiver of the six annuitants was then in possession. In May, July and November 1819 Eowe, by several conveyances, conveyed parts of the Eadley estate, called Hardyott Meadow, the tithes of Gallow piece and of 327 acres in the parish of St. Helens, and 18 acres 3 roods of meadow ground to Donovan in fee, in part discharge of the arrears of his annuities, to the extent of the sums of 1331, 5s., [16] 2160 and 1400. This property was included in the extents made under the elegits, and the Master found that in 1819 and 1820, by virtue of the writs of elegit and the sheriff's return, Donovan had entered into, and had since retained possession of, the tithes of Gallow piece and Box field, the tithes of the 381 acres in St. Helens and Hardyott Meadow (part of the Eadley estate). It did not appear whether the elegits had been returned, By the decree in the cause, made in May 1851, the Master was directed to ascertain the priority of the incumbrances on the property; and upon the above state of facts the Master found that by the conveyance to the elegit creditor of part of the lands extended, his two judgments for 6000 and 5520 had been extinguished. He disallowed Donovan's claim in respect of them. The second question related to the leasehold estate called Sunningwell, held for a term of 1000 years, and which had been assigned by way of mortgage in 1720. The mortgage had long since been satisfied, but the term had not been reassigned. Administration was, in 1824, taken out to the mortgagee, and the term was then assigned to Eowe, and by him to Donovan in May 1827, but, as the Court held, in trust for Sir George Bowyer, who was the tenant for life under Sir William Stone-house, the person entitled to the equity of redemption. Donovan, having the term, entered into possession of the Sunningwell property in 1828. While he was in possession, and on the 21st of February 1831, he issued a writ of elegit upon the judgment for 5520, returnable on the 14th of April then next, directed to the Sheriff of Berks, who extended to Donovan one moiety of the leaseholds at Sunningwell, which were in the pos-[17]-session of Sir George Bowyer at the date of the judgment. On the same day Donovan issued a writ of elegit on the judgment for 6000, directed to the sheriff, who thereupon extended to him the other moiety of the same leaseholds ; and on the same day Donovan issued a third writ of elegit on the judgment for 3996, in like manner, on which the sheriff returned nil. This gave rise to the second question, whether Donovan could be considered to be in possession of the Sunningwell property as tenant by elegit. The third question arose under these circumstances:-When Donovan issued his three elegits in December 1816 the six subsequent annuitants were in possession of Eadley by their receiver, and in order to prevent Donovan taking possession it was agreed, by deed of the 31st of March 1817, that the receiver should continue in possession and pay Donovan 385 a year (being five per cent, on the consideration money paid for his three annuities). This sum had accordingly been paid, but the Master, in taking the accounts, had, in the first place, attributed all the payments made to Donovan in respect of the 385 a year out of the Eadley estate, and all his receipt of rents from Cow Mead, Ferryham and Sunningwell, towards the discharge E. iv.-30* 938 HELE V. LORD BEXLEY 17 BEAV. 18. of the remaining judgment of 3996, considering the other two extinguished ; and he also found that allowing him credit for the full amount claimed, he had received much more than was sufficient to satisfy the judgment for 3996. The last question was, whether the Plaintiff (in respect of his annuity of 700 a year granted by Sir George Bowyer on the 5th of May 1815), and the other persons claiming as incumbrancers on the estate could, as re-[18]-garded Donovan, stand in a better situation than Sir George Bowyer. To this report Donovan took four exceptions, of which the first and fourth related to the disallowance of the claims generally, the second to the extinguishment of the judgments for 6000 and 5620, and the third, to the satisfaction of the judgment for 3996. Mr. Lloyd aud Mr. Bichner, in support of the exceptions. Where a judgment creditor extends lands by elegit, he holds qiiousyue debitwm recuperatwn fuerit, and though liable in equity to account to the debtor for the whole he has received, he is entitled to retain principal and interest, whatever the amount of the latter may be ; Yates v. Humbly (2 Atk. 363); Godfrey v. Watsm (3 Atk. 517). And if a judgment creditor, who has sued out an elegit and has obtained possession, is afterwards evicted, his judgment is not extinguished, but he is entitled to come into equity for satisfaction of so much as remains unpaid ; Leahy v. Dancer (1 Moll. 313); Ross v. Pope, (\ Plowd. 72). Nor is an dec/it any bar to the creditor obtaining such satisfaction in equity unless the writ has been regularly returned and filed ; and until it is shewn that it has been so returned and filed, the Court must assume that it has not, Ifoe'x case (5 Rep. 90 a.). Here it has not been shewn that the writs of elegit were returned to the Court from whence they issued ; and if it were so shewn, there is no evidence, to satisfy the Court as to the particular judgment or the particular writ of...
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