Lewis v Duncombe

[175] lewis v. buncombe (No. 2).(1) Jan. 26, 29, Feb. 9, 1861. [S. C. 30 L. J. Ch. 732; 7 Jur. (N. S.) 695 ; 3 L. T. 867; 9 W. R. 446.] Upon the grant of an annuity secured on real estate, a term was vested in trustees, in trust to raise and pay the arrears, and hold the surplus of the proceeds in trust for the grantor. Held, that the relation of the trustee and cesfuis tjue trust being created, as between the trustee and the grantor and grantee, the case came within the 25th section of the 3 & 4 Will. 4. c. 27, and that the annuitant's right to arrears was not limited to six years, under the 42d section, as against the grantor and his subsequent incumbrancers. In 1833 Mr. Thomas Slingsby Duncombe, being entitled, in reversion immediately expectant on the death of his father, to a freehold estate in Yorkshire, granted two annuities of 585 and 170 to the Eev. Robert Selby Hele. These annuities were granted and secured as follows:- By indentures of the 29th and 30th January 1833, and made between Mr. Duncombe of the first part, the Rev. Robert Hele Selby Hele of the second part, Charles Selby Hele of the third part, and George Nicholas Rankin of the fourth part, in consideration of an assignment by Robert H. S. Hele of certain leasehold premises at Edmonton, and of 2999 paid by him to Duneombe, Duncombe granted to Robert Hele Selby Hele an annuity of 585 during the lives of Duncombe, Charles Selby Hele and Henry Selby Hele (sons of Robert Hele Selby Hele), payable quarterly. And for the better effectually securing the due payment of the annuity, Duncombe granted to Robert Hele Selby Hele a power of distress and entry upon the manors, messuages, lands and hereditaments thereinafter released for all arrears of the annuity, and for all costs, &c. And it was further [176] witnessed that, for better securing the clue payment of the annuity, Duncombe, at the request of Robert Hele Selby Hele, granted, bargained, &c., unto Charles Selby Hele and George Nicholas Rankin, their executors and assigns, his estate in the West Riding " and elsewhere in the county of York," to hold to them upon the trusts thereinafter declared, that is to say, upon trust to permit Duncombe to receive the rents until default in payment of the annuity, and then, at the request of the annuitant, his exeeutors, administrators and assigns, to sell the hereditaments, and out of the proceeds first to pay the expenses ; second, to pay to Robert Hele Selby Hele so much of the annuity as at the time of completing the sales, should be in arrear, and all sums of money, losses, costs, damages and expenses which Robert Hele Selby Hele should pay or be put unto in consequence of the non-payment of the annuity ; thirdly, to invest the residue in their names, and out of the interest, and if insufficient, out of the capital, to pay the growing payments of the annuity, and subject to the (1) dates. 1833. Hele's annuities. 1847. Dec. 7. Tenant for life died. 1853. Sept. Lewis v. Duncombe. 1854. Hele's executor made party. 1854. March. He appeared. 1855. April. Decree. 1856. April. Hele's claim carried in. 1858. Decree for sale. 1860. Certificate. 29BEAV.177. LEWIS V. BUNCOMBE 595 trusts aforesaid, in trust fm Thomas Slingsby Buncombe, his executors, administrators and assigns, for his and their own use and benefit. By indentures of the 25th and 26th April 1833 the second annuity of 170 was granted in the same form; the consideration being an assignment by Hele to Duncombe of property at Clerkenwell, in the county of Middlesex, and a money payment of 999. On the 7th of December 1847 Mr. Buncombe's estate fell into possession by the death of his father. The bill in this cause was filed on the 7th of September 1853 by Lewis, a judgment creditor of Mr. Duncombe, against Mr. Duncombe and some of his judgment cre-[177J-ditors and incumbrancers, praying a sale of the Yorkshire estate, and that the priorities of the several parties might be ascertained. Mr. Frere (the representative of Mr. Robert Hele Selby Hele, who had died in 1839) was not made a party to the suit until the beginning of 1854, and he appeared to it in March 1854. On the 19th April 1855 a decree was made, directing first an inquiry what incumbrances there were affecting the real estates of Thomas Slingsby Buncombe in the North Riding of Yorkshire and their priorities; second, an account of what was due in respect thereof. And it was ordered that Duncombe should execute a disentailing deed of the property in question (20 Beav. 398). In April 1856 Mr. Frere carried in his claim; and by the Chief Clerk's certificate, which was filed on the 8th of August 1856, the several incumbrances were stated with their priorities, and the first and second in priority were stated to be the two annuities granted by Mr. Duncombe to Robert Hele Selby Hele. By the decree on further directions, on the 26th January 1858, an account was directed of what was due to the Defendant Frere, as executor of Robert Hele Selby Hele, for arrears of the two annnities and for his costs, and the estate was ordered to be sold, which was done accordingly. In Chambers Mr. Frere claimed the arrears of the annuity of 585 from the 30th January 1833, and arrears of the annuity of 170 from the 26th April 1833 ; but it was contended, on the part of the next incumbrancer, that such arrears should be confined to a period commencing six years prior to the date of the [178] decree in this suit. The Chief Clerk was, however, of opinion that the arrears of the annuities ought to be limited to those accruing subsequent to the 30th of April 1850, being six years before the time when Mr. Frere's claim was made in this suit, and he so certified on the 14th of December 1860. A summons was taken out, in order to take the opinion of the Master of the Rolls upon the result of the proceedings as certified by the Chief Clerk. The question turned on the operation of the Statutes of Limitation, the material portions of which are as follows:-By the 42d section of 3 & 4 Will. 4, c. 27, it is enacted that no arrears of rent [which, by the 1st section includes annuities charged on land] or of interest in respect of any sums of money charged upon or payable out of any land or rent, &c., &c., " shall be recovered by any distress, action or suit but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable or his agent," The 25th section of the same Act (3 & 4 Will. 4, c. 27) is as follows :-" Provided always, and be it further enacted that when any land or rent shall be vested in a trustee upon any express trust, the right of the custui que trust, or any person claiming through him, to bring a suit against the trustee...