James v Biou. Owen v Flack
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1826 |
| Date | 01 January 1826 |
| Court | High Court of Chancery |
English Reports Citation: 57 E.R. 475
HIGH COURT OF CHANCERY
Trust. Equity of Redemption. Evidence.
2 8IH. & ST. 600. JAMES V. BIOU 475 [600] jambs v. biou. owen v. flack. Dec. 6, 1825; May 31, 1826. Trust. Equity of Redemption. Evidence. A trustee in receipt of the rents and profits of a mortgaged estate, under an old conveyance of the equity of redemption, upon trust to sell and pay off certain debts which had been long since satisfied, is not entitled to redeem the mortgage. Payment of money, though evidence against the payer of the title of the party receiving it, is not evidence against the receiver that the payer was the party bound to pay it. The suppression of some of a series of documents relating to the title, which are admitted to be in the possession of a party, is evidence that the documents withheld afford inferences unfavourable to the title of that party. This was an original and revived suit for the redemption of mortgaged estates, and for a reconveyance upon the trusts of certain deeds executed in the year 1781. The original bfll was filed in November 1817 (see James v. Biou, 3 Swan. 234), and the case made by it, and by a bill of revivor and supplement, was in substance that, in 1781, Sewell Mansell was seised in fee of the estates in question, subject as to part, to a mortgage in fee for securing 300 and interest, and as to other part, subject to a mortgage in fee for securing 400 and interest; that in July 1781 these two mortgages were vested in Susannah Biou, the Defendant to the original bill, and Francis Biou, deceased; that for many years previous to 1781 Sewell Mansell had regularly paid the interest on these mortgages to Susannah and Francis Biou; that in 1781 an agreement was entered into between these parties, for increasing the rate of interest on the mortgages from four per cent, to five per cent, per annum. [601] That, by indentures of lease and release, dated the 30th and 31st of July 1781, made between Sewell Mansell of the one part, and Abel Jenkins of the other part, Mansell conveyed the mortgaged estates to Jenkins in fee, upon trust to sell them, and apply the money to be produced by the sale in the manner directed by another indenture of even date, which was made between the same parties, and by which, after reciting the conveyance to Jenkins, and the two mortgages for 300 and 400, and several other incumbrances and annuities to which the estates were subject, it was declared that Jenkins should stand possessed of the money to be produced by the sale of the estates, and of the rents and profits of them until they were sold, upon trust, out of the rents and profits, to keep down the interest of the mortgages and other incumbrances, and then to satisfy and pay off the principal monies due in respect of the mortgages and other incumbrances, and to apply the surplus in payment of the debts of Sewell Mansell mentioned on the back of this indenture, and to pay what might remain of the money produced by the rents and profits, and by the sale, after these various payments, to Sewell Mansell, his executors, administrators and assigns...
To continue reading
Request your trial
-
Fowler v Lightburne
...of SalisburyENR 19 Beav. 198. Curtis v. Price 12 Ves. 89. Wickham v. Wickham 19 Ves. 419. James v. Bion 3 Swanst. 234. Owen v. FlackENR 2 Sim. & St. 600. Parkin v. ThoroldENR 16 Beav. 59. Roberts v. MarchantENR 1 Ph. 370. Curre v. BowyerENR 5 Beav. 6, n. Lewis v. RoesENR 3 K. & J. 132. Colm......
-
Heardson v Williamson
...as the trusts are satisfied, it will vest in the person beneficially entitled to it. The same principle is recognised in James v. Biou (2 Sim. & Stu. 600), where it was held that a trustee of the rents and profits of a mortgaged estate, under an old conveyance of the equity of redemption up......
-
Flack v Longmate
...death of Susannah Biou, against her representatives; when it came on for decision (31st May 1826. See James v. Biou, and Owen v. Flack, 2 Sim. & St. 600), it appeared that the person claiming the right to redeem had not a perfect right; the bill waa dismissed, and in 1829 this was finally o......
-
Short v Emperingham
...freehold have a right to deal with the money which might have been realised as if it were real estate. James v. Biou (3 Swan. 234, and 2 Sim. & S. 600); Damon v. Ellis (i Jac. & Wai. 524); Sloane v. Cadogan (3 Sug. V. & P. 297); Filler* v. Beaumont (1 Vern. 100); Gollinson v. Pattridc (2 Ke......