Lyde v Mynn
| Jurisdiction | England & Wales |
| Judgment Date | 03 August 1833 |
| Date | 03 August 1833 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 839
HIGH COURT OF CHANCERY
S. C. Coop. t. Brougham, 123; 4 Sim., 505. Distinguished, Thompson v. Cohen, 1872, L. R. 7 Q. B., 527. See Collyer v. Isaacs, 1881, 19 Ch. D., 348; Robinson v. Ommanney, 1882, 21 Ch. D., 785; 23 Ch. D., 285; Montagu v. Earl of Sandwich, 1886, 32 Ch. D., 539. As to charges on Expectant interests under modern law of bankruptcy, cf. In re Clarke, 1887, 36 Ch. D., 348; Tailby v. Official Receiver, 1888, 13 App. Cas., 523; In re Turcan, 1888, 40 Ch. D., 5.
[683] lyde v. mynn. July 19, August 3, 1833. [S. C. Coop. t. Brougham, 123; 4 Sim., 505. Distinguished, Thompson v. Cohen, 1872, L. K. 7 Q. B., 527. See Collyer v. Isaacs, 1881, 19 Ch. D., 348; Robinson v. Ommanney, 1882, 21 Ch. D., 785 ; 23 Ch. D., 285; Montagu v. Earl of Samhmch, 1886, 32 Ch. D., 539. As to charges on expectant interests under modern law of bankruptcy, cf. In re Clarke, 1887, 36 Ch. D., 348 ; Taillty v. Official Receiver, 1888, 13 App. Cas., 523 ; In re Turcan, 1888, 40 Ch. D., 5.] A granted an annuity to B, and covenanted to charge it upon all such property as, in the event of C dying before him, he might become possessed of at C's death, either by will or otherwise. A afterwards became bankrupt and obtained his certificate ; and then C died, having bequeathed an annuity in trust for A. Held, that B was entitled to a decree specifically charging his annuity upon the annuity bequeathed in trust for A. A claim founded on a covenant to charge a particular debt upon a specific fund, irt which the covenanter has no present interest, but merely an expectancy, is not barred by the bankruptcy and certificate of the covenanter, before he acquires an actual interest in the fund. An agreement, of which the subject is an expectancy, contingent upon the will of a living person, is not illegal, but will be enforced in equity. In the month of December 1824 the Defendant, John Mynn, in consideration of 840 LYDE V. MYNN 1 MY. & K. 84. the sum of 1110, granted to the Plaintiff Lyde for his life au annuity of 160, and covenanted duly to pay the same; and, as an additional security for the payment thereof, he further covenanted to charge this annuity upon all such property as he, Mynu, should, in the event of his wife's decease, become entitled to by virtue of her last will and testament, or otherwise. In execution of a power reserved by her marriage settlement, Mrs. Mynn made a will, dated the 26th day of November 1826, whereby she gave her property to trustees, upon trust to purchase an annuity of 700, and pay the same to the Defendant, her husband, half-yearly during his life. On the 18th of December 1826 a commission of bankrupt issued against John Mynn, under which he was declared a bankrupt; and on the 19th of March 1827 he obtained his certificate. Mr Lyde never applied to prove under the commission in respect of his annuity. On the llth of June 1827 Mrs. Mynn died ; and the trustees having subsequently purchased an annuity of 700 for her husband, in pursuance of the directions in B )84] her will, this bill was filed against Mynn and the trustees, praying that the efendauts might be decreed to join in charging the annuity of 700 with the payment of the Plaintiffs annuity in future, as well as of the arrears then due. the vice-chancellor made a decree according to the prayer of the bill (4 Sim., 505), and against that decree the present appeal was brought. Mr. Pepys, Mr. Tinney, and Mr. Parker, for the Plaintiff. Sir E. Sugden and Mr. Wakefield, for the Defendant Mynn, who appealed. The question raised by this appeal involves two considerations: first, what was the nature of the contract; and, secondly, in what manner the covenant was affected by the bankruptcy. Now, certainly the subject-matter of this covenant was such, relating as it did to a mere possibility-the chance which the covenantor had of deriving benefits upon the death of a person then alive, under her will or otherwise- that a Court of Equity, although it might not interpose to set the covenant aside, would still be extremely slow to enforce it. Expectations under a supposed will, before that will has by the death of the testator become irrevocable and operative, are of too uncertain and shadowy a character to be properly the subject of contract at all: such a contingency is much more remote and improbable than the interest of a remainder-man expectant upon an estate tail, or the spes successions of an eldest sou during his father's lifetime, both of whom have a species of interest which can only be displaced by some positive act to be done by the party in posssession. Besides, dealings with respect to a succession [685] in expectancy, like the dealings of expectant heirs with reversions, ought to be viewed with extreme jealousy, inasmuch as they tend to disappoint the best purposes of testators-it may be, to deprive them of a salutory control over disobedient children. Upon that ground, underhand agreements of this description were totally condemned by the civil law;(l) and although perhaps it has never been decided that by the law of England they are absolutely void, they are entitled to no favour in this Court. That certainly was Lord Eldon's impression when he granted the injunction in Harwood v. Tooke, (2 Sim., 192, where the case is shortly stated), a case which has been much misunderstood, and which, when closely examined, will be found by no means to authorise the proposition, that a specific performance of an agreement with respect to expectancies under the will of a living person will be decreed in this Court. In Harwooil v. Tooke the Plaintiff had given Tooke a promissory note for 4000, in satisfaction of a claim set up by the latter under an agreement touching their expectations from the will of the Plaintiff's uncle. Tooke afterwards indorsed the note to the Defendant Burdett as the consideration for an annuity, and all that Lord Eldon ultimately determined was that the Plaintiff had no equity to follow the note into the hands of a third party, a purchaser for [686] value. In that view it became unnecessary to decide the question, how far equity would interpose to enforce a contract dealing with expectancies, but, upon the motion for the injunction, Lord Eldon had previously expressed himself strongly against such interposition, as appears from a note of his Lordship's judgment taken at the time by Mr. Maddock. The language of his Lordship on that occasion was:-" I consider the agreement as fraudulent on the testator Tooke, and I have considerable doubts as to its legality, notwithstanding the case in Peere Williams (Beckley v. Newland, 2 P. 1MY. &K.687. LYDE V. MYNN 841 Wins., 182). I think it impossible to say it was not intended to keep this secret from the testator, and, according to the policy of the law, if the question was whether such an agreement should be specifically performed, I think I should not decree it" (from Mr. Maddock's MS. note). The authority of Harwood v. Tooke, therefore, as far as it goes, is in the Appellant's favour. The rule at law is, that covenants of this description are strictly personal to the grantor, and that they do not bind the property which is the subject of such covenants, or the parties who may subsequently acquire it. In Morse v. Faulknar (3 Swan, 429, n.; 1 Anst., 11) Chief Baron Eyre thought that the equity arising under such an. agreement was a personal equity, and though the vendor in that case had received the price of the estate and made a surrender to the purchaser, and afterwards acquired a good title to the property, his Lordship refused to make a. decree for a specific performance against the vendor's heir at law. A similar doctrine is laid down by Lord Eldon in Garletm v. Leighton (3 Mer., 667). If, instead of an annuity bequeathed to [687] Mr. Mynn through the medium of trustees, a sum of money had been given him, and the money had been actually paid, it is perfectly clear that the covenant would have been gone at law, and that the Plaintiff could have no equity to follow the property. Why, then, should the accidental circumstance of the bequest being in the form of an annuity payable by trustees create a. difference when the subject-matter of the gift, the property sought to be affected by the charge, is merely personal 1 It is said that the Plaintiff was not bound to come and demand payment of his debt under the commission, but might, as he has preferred, rest on the collateral security which the covenant created. Now, under the fifty-fourth section (2) of the Bankrupt Act, the Plain-[688]-tiffs annuity was clearly a debt capable of being proved, and by the 121st section it is expressly provided that the certificate shall discharge the bankrupt from all debts and demands made provable by virtue of the Act. If, then, the debt in respect of the annuity, which was the principal thing contracted for, be discharged, will it be contended that a covenant which was merely accessary and given for the better securing that debt can have any possible operation 7 At law it is admitted that the covenant ia destroyed. To uphold and enforce it in equity would be directly contrary to the whole spirit and policy of the bankrupt laws, of which it is one main object to release the bankrupt from all existing obligations and engagements, and to send him forth to begin the world anew, a free and unfettered man. If the grantor had covenanted to charge all the assets which he then had, or might thereafter acquire, with the annuity in question, his liability would clearly have been discharged by the bankruptcy, for such a covenant in effect does nothing more...
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A P Holroyd and Others v J G Marshall and Others
...v. Tooke (id. 192). [Lord Brougham: These two cases last named turned entirely on the lawfulness of the agreement.] In Lyde v. Mynn (4 Sim. 505) 1002 HOLKOYD V. MARSHALL [1861-62] X H.L.C., 201 A. granted an annuity to B., and covenanted to charge that annuity on any property to which he mi......
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A P Holroyd and Others v J G Marshall and Others
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Between Helena Wellesley, Wife of the Defendant The Honourable William Pole Tylney Long Wellesley, by Henry Harrison, her next Friend, Plaintiff; and the said William Pole Tylney Long Wellesley, John Wright, the Reverend John Greenly, William Richard Arthur Pole Tylney Long Wellesley, Thomas Paterson, William Lawrence Bicknell, James Archibald Casamajor, and William Hart, Defendants
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