Keene, on the Several Demises of George Lord Byron and Others, against Deardon and Others

JurisdictionEngland & Wales
Judgment Date07 February 1807
Date07 February 1807
CourtCourt of the King's Bench

English Reports Citation: 103 E.R. 336


Keene, on the Several Demises of George Lord Byron and others, against Deardon and others

[248] keene, on the several demises of george lord byron and others, against deardon AND others. Saturday, Feb. 7th, 1807. A. tenant for life, remainder to his son B. in tail, reversion to himself in fee, agreed with B., in order to relieve themselves from their debts, to bar the entail: and in 1773 they conveyed estates in N. and L. to the use of trustees and their heirs, in trust to sell the N. estates and pay the debts, &c. and as to the L. estate (the only one in question), in trust that the trustees should, with the consent of A. and his wife, and B. or the survivor, sell the inheritance in fee, and apply the purchase-money on the trusts after mentioned: with a proviso, that the rents, issues, and profits, should, until sale of the inheritance, be received by such person and for such uses as they would have been if the deed had not been made and no fines levied. And as to the money arising from the sale of L. estate, in trust to invest the same, with the like consent, in the purchase of other lands in fee to be settled, subject to certain charges, on A. for life, remainder to B. in fee. Held, 1st. (a) Dougl. 515. 8 EAST, 249. KEENE V. DEAR.DON 337 That the use of the L. estate was immediately executed in the trustees, even before any consent given to the sale of it by A., &e.; and that, notwithstanding the proviso, which stipulated only for the receipt, by the party before entitled, of the rents, &c., as contradistinguished from the legal estate of the inheritance, which was left in the trustees. And that this was not a mere power of sale in the trustees tacked to the legal estate of the owner. 2. That though A. who survived his wife and B., continued in possession of the L. estate down to 1795, when he sold it, and died some time after; and though, after sale of the N. estate in 1774, for the payment of the debts, the trustees of the L. estate never interfered in further execution of the trust during A.'s lifetime, but brought ejectment after his death ; yet that no presumption could be made at the trial in favour of the defendants, who, purchased from A. in 1795, for a valuable consideration, without notice, either that the trustees had re-conveyed the legal estate to A. in his lifetime, as upon a satisfied trust, according to the old uses; or had conveyed a new estate to him as a purchaser under a sale by them in execution of their trust. For a Court of Law will never presume a reconveyance by trustees where such reconveyance would be a breach of their trust; which would be the case here upon a supposition that B., the son, was a purchaser for a valuable consideration of the remainder in fee, which was to be limited to him upon the settlement of the new estate to be acquired with the purchase-money of the L. estate. Nor is such a presumption to be made in the first instance, even in the case of a doubtful equity, before a Court of Equity has declared in favour of the equitable title of the party for whom such presumption is required. Nor was there any evidence to support a presumption that A. had purchased a new estate of the trustees. 3. That A.'s possession and receipt of the rents, issues, and profits of the L. estate, though for above 20 years after the creation of the trust without any interference of the trustees, did not shew his possession to be adverse to their title, so as to bar their ejectment against his grantees; such possession and receipt being consistent with and secured to him by the deed of trust. George Lord Byron brought this ejectment, claiming as heir at law of Wm. John Byron, the grandson, and of Wm. Byron the eldest son of William the fifth Lord Byron, to recover possession of certain premises and coal-mines in the manor of Eochdale, in the county of Lancaster, which the defendants had purchased of the [249] said fifth Lord Byron under a conveyance in 1795. John Heaton, another of the lessors of the plaintiff, is the surviving trustee under the deed of the 13th of November 1773, after mentioned, of the estates in question. Lady Wodehouse, another of the lessors, is the representative of Wm. Lord Berkley, the surviving trustee in the Act of Parliament of 1747, settling these estates. And the other lessor is the surviving representative of Cha. Montague, the surviving trustee of a term of 500 years under the same Act. At the trial before Sutton B. at Lancaster, a copy of the Act, together with the deeds of the 12th of July and of the 13th of November 1773 were proved; under which it was insisted on behalf of the present Lord Byron, that his great uncle, Wm. the fifth lord, under whom the defendants claimed by purchase, was only tenant for life of the Eochdale estate, with remainder to his son Wm. Byron in fee; and that the same descended to the present lord as heir at law of Wm. Byron the son, who died in the lifetime of his father; and that he became entitled to the possession thereof on the death of the late Wm. Lord Byron the fifth, in 1798; und that the legal estate was either in him, or in some one or other of the trustees, lessors of the plaintiff. The defendants, on the other hand, who claimed under the conveyance of Wm. Lord Byron the fifth, in 1795, contended that the deeds of 1773 were made only for a special purpose, which had been answered; and subject thereto that the Eochdale estate was, at the time of the conveyance to them, still under the limitations of the Act of Parliament, by virtue of which Wm. Lord Byron the fifth (the settlor in the deeds of 1773,) was seised of the reversion in fee, and in the events that had happened, by which the purposes of those deeds were satisfied, could make a good [250] title to a purchaser: and that with respect to the legal estate in the reversion, either that the use was executed in the late Lord Byron the vendor, or that the Judge would direct the jury to presume a conveyance to him from the trustees. They also insisted upon an adverse possession against the trustees for above 20 years in bar of 338 KEENE V. DEARDON 8 EAST, 251. the ejectment. The learned Judge, however, over-ruled the objection of an adverse possession, and did riot instruct the jury to presume a conveyance from the trustees of the legal estate to Lord Byron the settlor; but directed them to find a verdict for the plaintiff, with liberty for the defendants to move to enter a nonsuit, or a verdict for themselves, in case this Court should be of opinion that the lessors of the plaintiff were not entitled to recover: on which a rule to shew cause was afterwards obtained. The title appeared to stand thus: By a private Act of Parliament, passed in 1747, for settling the estates of Wm. Lord Byron and Eliz. Shaw, on their intermarriage, reciting a prior indenture, made on the marriage of the preceding Lord Byron with Frances Berkley, whereby the Nottinghamshire and Rochdale estates were limited to the use of the last-mentioned Lord Byron for life; remainder to the use of trustees for a term of 700 years, to raise portions for younger children ; remainder to the use of the first and other sons of the marriage in tail male; with divers remainders over : and reciting that the last-mentioned Lord Byron died in 1736, and by his will directed the portions of his younger children to be paid out of bis personal estate; and that he left issue the said Wm. Lord Byron his eldest son, and three younger sons and a daughter: that Wm. Lord Byron had then lately suffered recoveries of the settled estates, and that the inheritance of the premises, subject to the term of 700 years, was [251] vested in him in fee; and reciting an agreement to resettle the estates upon his then intended...

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