Hurst v Hurst

JurisdictionEngland & Wales
Judgment Date23 December 1852
Date23 December 1852
CourtHigh Court of Chancery

English Reports Citation: 51 E.R. 822

ROLLS COURT

Hurst
and
Hurst

S. C. 22 L. J. Ch. 538; 1 W. R. 105.

[372] hurst v. hurst. Dee. 17, 23, 1852. /y/f/l:^ * ' _ / C£. JiT'T [S. C. 22 L. J. Ch. 538 ; 1 W. R. 105.] A tenant for life, having a power to charge the estate with portions for younger children, mortgaged his life-estate, and covenanted not to exercise the power. Held, that he could not, afterwards, charge the estate with portions, to the prejudice of his mortgagees. Principles on which the Court acts in directing a sale of a mortgaged estate, under the late Act. A testator, by his will dated in 1839, devised real estates to the use of Robert Henry Hurst the elder for life, with remainder to Robert Henry Hurst the younger for life; with remainder to his first and other sons in tail, &c., &c. And power was thereby given to Robert Henry Hurst the elder, when in possession, to charge the estates with any sum not exceeding .£20,000 for the portions of his younger children, and to create a term for securing it. Other powers were also given him. The testator died in 1843, and after his death the tenants for life incumbered their life-estates to a considerable extent; first, by a demise for ninety-nine years, and afterwards by an indenture of the 22d of June 1844, whereby they charged their life-estates (subject to the prior mortgages) to the Plaintiff, for securing £10,000; and it was thereby provided that Robert Henry Hurst the elder should not use or exercise, or consent to the use or exercise, of the powers contained in the will or any of them. Afterwards, by an indenture of the 6th of August 1844, Robert Henry Hurst the elder charged the estate with £20,000 for the portions of his younger children, to be vested and payable at such times as he should appoint, and he appointed the estate to a trustee for an immediate term of 1000 years for securing the amount. The next day, and on the marriage of his daughter, Mrs. Mills, he appointed £5000, part of the £20,000, [373] immediately in her favour, and the amount was settled upon her and her family. The parties to the settlement and their trustees had notice of the mortgage to the Plaintiff, who gave no consent to the execution of the power to raise portions. The suit was for foreclosure and redemption, and the principal question was, whether the Plaintiff's security had priority over the portions. Mr. Follett and Mr. Kinglake, for the Plaintiff. The tenant for life having incumbered his estate...

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3 cases
  • Palk v Mortgage Services Funding Plc
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 31 July 1992
    ...occasioned by foreclosure and redemption in a case where there is a great number of successive mortgages": per Sir John Romilly M.R. in Hurst v. Hurst (1852) 16 Beav. 372, 374. Sir John Romilly added: "The power given to the Court…is at the instance of the first mortgagee, to direct a sale ......
  • Davis v Huguenin
    • United Kingdom
    • High Court of Chancery
    • 2 May 1863
    ...an express covenant: Green v. Green (2 J. & Lat. 529), Harner v. Swann (T. & R. 430), Re Chambers (11 Ir. Eq. E. 518), Hurst v. Hurst (16 Beav. 372). It is in fact too clear for argument that the donee of a testamentary power may bind himself not to exercise it. That being so, the only ques......
  • Newman v Selfe
    • United Kingdom
    • High Court of Chancery
    • 5 March 1864
    ...and Mr. Shebbeare, for the subsequent incumbrancers, also concurred in an early sale of the mortgaged property. They cited Hurst v. Hurst (16 Beav. 372). Mr. T. A. Roberts, for the mortgagor, did not object to the usual decree for foreclosure; but he stated that the property consisted of bu......

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