Lord Kensington v Bouverie
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 53
BEFORE THE LORDS JUSTICES.
S. C. 19 Beav. 39; 24 L. J. Ch. 369; 1 Jur. (N. S.), 577; 24 L. J. Ch. 442; 7 H. L. C. 557; 6 Jur. (N. S.), 105; 29 L. J. Ch. 537. See Mayer v. Murray, 1878, 8 Ch. D. 428; Noyes v. Pollock, 1886, 32 Ch. D. 63.
7 DE 0. M. & 0. 134. LORD KENSINGTON V. BOUVERIE 53 [134] lord kensington v. bouverie. Before the Lords Justices. March 28, April 21, 25, May 28, 1855. [S. C, 19 Beav. 39 ; 24 L. J. Ch. 269 ; 1 Jur. (N. S.), 577 ; 24 L. J. Ch. 442 ; 7 H. L. C. 557 ; 6 Jur. (N. S.), 105 ; 29 L. J. Ch. 537. See Mayer v. Murray, 1878, 8 Ch. D. 428 ; Noyes v. Pollock, 1886, 32 Ch. D. 63.] A tenant for life in possession of settled estates, with power to charge them with a principal sum and interest for his own benefit, exercised the power and mortgaged the principal and interest thus charged, together with property of his own, for a larger amount than that of the charge, and kept down the interest on the whole mortgage monies. The rents and profits of the settled estates were insufficient to pay the interest of the sum charged under the power. Held, after the death of the tenant for life, that his mortgagees were entitled to a charge on the inheritance for the deficiency. Held, also, that in taking the account of the rents and profits received by him, they ought not, without special grounds, to be charged with what ho might have received but for wilful default. This was an appeal from the decision of the Master of the Rolls, reported in the 19th Volume of Mr. Bevan's Reports (page 50), and, by arrangement, the decree came on to be reheard at the same time. The bill was filed by Lord Kensington for the purpose of redeeming a charge of 20,000 on the Kensington estate, comprised in the settlement made on his marriage. The charge thus sought to be redeemed was created under a power contained in the settlement. At the date of the settlement, the late Lord Kensington was seised in fee of the Kensington estate, subject to a mortgage to Lord Braybrooke and others, for .60,000, and that sum of 60,000 was also secured on the Lambister Rectory and tithes, and other estates belonging to the late Lord Kensington. By the settlement which was dated the 10th of October 1833, the Kensington estate was settled, subject to the mortgage of 60,000 and interest, to the use of the late lord for life, with remainder to the use of the present lord for life, with remainders to the use of his first and other sons in tail, and with an ultimate limitation to the use of the late Lord Kensington in fee. The settlement contained a power to the late Lord Kensing-[135]-ton to charge the settled estates with any sum not exceeding 20,000, and interest not exceeding 5 per cent, per annum, for the use of himself, his executors, administrators and assigns, and to create a term to secure the amount thus made chargeable. It also contained the following proviso : - " Provided always, and it is hereby agreed and declared, between and by the said parties to these presents, that in case the said principal sum of 20,000 so charged upon the hereditaments and premises aforesaid, or any part thereof, shall not, at the time of the decease of the said William Lord Kensington, have been raised by a mortgage or mortgages of the said hereditaments or premises charged therewith, and comprised in the said term of 1500 years or otherwise upon the security of the same premises, then, that no further or greater part of the said sum of 20,000, than as shall have been raised by such mortgage or mortgages, or security as aforesaid, shall be raised or paid, but that as between the personal representatives of the said William Lord Kensington and the person or persons claiming under the limitations of the said indenture of release and settlement, of the 10th day of October 1833, subject to the same term of 1500 years, the residue of the same principal sum of 20,000 shall sink and not be raisable unless the said William Lord Kensington shall, by any writing under his hand, or by his will and testament, or any codicil or codicils thereto, otherwise expressly direct." By an indenture dated the 4th day of February 1835, and made between the late Lord Kensington of the one part, and Henry Whittaker of the other part, Lord Kensington exercised the power by charging the settled estates with 20,000 and interest at 5 per cent, per annum, and appointed the estate to Henry Whittaker 54 LORD KENSINGTON V. BOUVEE.IE 7 DE 0. M. 45 0.136. for [136] term of 1500 years, upon trust for raising the sum charged in such manner as the late Lord Kensington should direct. By a deed dated the 5th of February 1835, the late Lord Kensington assigned the 20,000 and interest, charged by the indenture of the 4th of February 1835, and Whittaker assigned the 1500 years'term created by that indenture, and the late Lord Kensington also conveyed the Lambister Kectory and tithes, to Frederick W. Eoke by way of mortgage for securing the sum of 5500, and by another deed dated the 24th of June 1835, the late Lord Kensington charged the premises comprised in the deed of the 5th of February 1835, with the further sum of 2500 in favour of Eoke. A further assignment of the 20,000 and interest, and the 1500 years' term, was afterwards made by a deed dated the 9th of September 1836, made by the late Lord Kensington and Henry Whittaker to Henry Luard and William G-unston, by way of mortgage for securing the sum of 1000 and interest, and by a subsequent deed dated the 25th of July 1837, the late Lord Kensington charged the 20,000 and interest, and other property to which he was entitled, with the sum of 5277, 6s. 2d. in favour of Henry Whittaker the trustee and Joseph Tatham. By three several deeds, dated the 12th, 14th and 30th of April 1838, the several sums secured by the three last-mentioned indentures, and all the securities for the same, were assigned to Lord Braybrooke and others, the mortgagees, for 60,000, who thus became entitled to the sum of 14,277, 6s. 2d. charged upon the 20,000 and interest. [137] The late Lord Kensington afterwards by a deed, dated the 27th of January 1842, assigned the 20,000 and interest, and the benefit in equity of the 1500 years' term created for securing the same, with other property belonging to him, to the Defendants Edward Bouverie, the Bishop of Bath and Wells, and Philip Pleydell Bouverie, by way of mortgage for securing to them the sum of 24,500 and interest, subject as to the 20,000 and interest, and to the prior charges thereon for the sum of 14,277, 6s. 2d.; and the proviso for quiet enjoyment until default, which was contained in this deed, extended to the quiet enjoyment by the late Lord Kensington of the interest on the 20,000. A general arrangement of the affairs of the late Lord Kensington appeared to liave been at this time made. By other deeds, dated the same 27th of January 1842, his other estates were mortgaged as to part in favour of P. P. Bouverie and Charles Tennant, for securing the sum of 32,500, and as to other part in favour of Frederick William Roke, for securing the sum of 30,000. The several properties comprised in the several deeds of the 27th of January 1842 were respectively made liable for the sums secured by the other deeds of even date ; and by a further deed, dated the same 27th of January 1842, the late Lord Kensington, and all the mortgagees concurred in appointing Richard Harrison to be the receiver of the rents of the estates comprised in the several mortgages, with directions to apply the rents according to the rights of the several mortgagees. The late Lord Kensington died on the 10th of August 1852. The bill in this suit was filed by the present Lord Kensington, to redeem the equity of redemption in the settled estate, subject to the first mortgage (which the mortgagees were willing to permit to remain undisturbed). [138] The decree, which was now reheard, was pronounced on the 1st of March 1854. It was prefaced by a statement, that the mortgagees for 60,000 at the Bar, by their counsel, consented not to be redeemed, and to allow that sum to remain a charge upon the property, and it directed an account and enquiry as to what was due, and to whom, for principal and interest upon the 20,000 charged under the power and for costs, and it then proceeded in the usual terms of a decree for redemption. Under this decree the chief clerk had taken an account of the interest on the 20,000 only from the death of the late Lord Kensington, who had remained in possession till his decease. The rents and profits were found to be sufficient to keep down the interest on the 60,000, but not to pay the 5 per cent, on the 20,000 also, and the case then came before the Master of the Rolls upon an adjourned summons, with a view to obtain an inquiry as to the excess of interest of the 20,000 over the balance of rents and profits after payment of interest on the 60,000 during the life of the late lord, and to have that excess charged on the inheritance as part of the mortgage security given to the Appellants. 7DEO. M. S0.1S9. LORD KENSINGTON V. BOUVERIE 55 The Master of the Bolls refused the account and inquiry thus sought, expressing an opinion that the death of the tenant for life had concluded all account of the rents and profits of this estate received by him, as between him and the persons entitled to that estate in remainder on both sides. His Honour was of opinion (see 19 Beav. 55) that if the interest had been allowed to run into arrear, the present Lord Kensington, who (in that event, and if the Defendants the mortgagees had not taken possession) might have obtained a receiver, could not now ask for any account of the rents received by the late Lord Ken-[139]-sington, or go against his assets for that purpose, and also, that in like manner no person claiming under the late Lord Kensington could now come forward and ask for such an account, for the purpose of shewing that the...
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