M. T. Hawkins, Widow, John and James Bradshaw, and C. Butler against Kemp
| Jurisdiction | England & Wales |
| Judgment Date | 12 February 1803 |
| Date | 12 February 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 655
IN THE COURT OF KING'S BENCH.
Referred to, Cooke v. Crawford, 1842, 13 Sim. 96.
3 EAST, 411. HAWKINS V. KEMP 655 M. T. hawkins, Widow, john and jambs bradshaw, anjj C. butler kemp. Saturday, Feb. 12th, 1803. Where in a marriage'settlement made by '. tenant in tail, he settled the same to himself for life and to the children of the marriage in strict settlement; with a proviso that it should be lawful for him by deed or instrument in writing attested by three witnesses and to be inrolled ~with the consent in writing of certain trustees, to revoke the old and declare new uses. Held that a deed of revocation executed by him and all the trustees in person except one, and the consent of that one being given by means of a general pow;er of attorney before made by him to the settlor to consent to any such deed he might think proper to make, by virtue of which the settlor executed the deed for and in the name of such trustee, is -bad, though properly attested and inrolled: and that another deed of revocation properly executed and assented to, but not inrolled till after the settlor's death, was also void; for that every thing required to be done in the execution of such a power must be strictly-complied with, and must be completed in the lifetime of the person by whom it is to be executed; and also held that the defect of ,the one deed could not be supplied by the other. - [Referred to, Cooke v. Crawford, 1842, 13 Sim. 96.] In assumpsit the plaintiffs declared^ that whereas they were seised in fee of certain premises in the parishes of Chilham, Sellings, and Boughton, &c, in the county of Tent, and were about to sell part of the same by auction, under certain printed conditions of sale, (therein set forth) amongst others, that the purchaser should immediately pay a deposit of 201. per cent, on the purchase money, and [411] the remainder before the 31st of October 1801, on having a good title made to him, &c. and prepare a conveyance, &c. the defendant promised in case he became the purchaser to perform the said conditions, &c.; they then averred that a sale was made on the 3d of July 1801, at which the defendant became^ the purchaser of certain lots, accord-ing to the printed particulars, for the sum of 70051., and paid a deposit of 14001. for the use of the vendors in part payment:, and although the plaintiffs performed'all the conditions of sale which as vendors'they'ought to have done, and were ready to make a good title to, the premises purchased by the defendant, and to convey the same according to the conditions of sale, &e.; yet the defendant refused to prepare any conveyance of the same, &c. (as required by the conditions, of sale), and refused to pay the remainder of the purchase-money, &c. To this the defendant pleaded non assumpsit. - " The cause was tried at the last sittings in Easter term before Lord Ellenborough C.J., when a verdict was found for the plaintiffs, damages 56051., subject to the opinion of the Court upon the following "case. The premises in question were put up to sale by auction, as stated in the declaration, on the 3d of July 1801, under the conditions and according to the^ particulars , therein stated. The defendant became the purchaser of the lots in question at the said sale for 70051., and paid the plaintiff 1400L as a deposit^ and in part payment of the purchase-money fpr those lots. The plaintiffs delivered indue time an abstract of title comprising the after-mentioned deeds and assurances, as and for a good title to the said lots, and offered to execute a conveyance thereof to the defendant, and in all other respects complied with the several conditions of sale. The defendants refused to [412] complete the purchase; objecting'first that the title comprised in the abstract was not a good title; and secondly, that no valid conveyance could be executed by the plaintiffs alone without the execution of James Broadhurst, one of the devisees in trust named in the will of Thomas Hawkins hereinafter mentioned, or the appointment of a new trustee in his place, notwithstanding the deed of renunciation dated 20th of April 1801 hereinafter set forth. The defendant has refused to complete his purchase. By an indenture of bargain and sale, dated the 12th of May 1770, inrolled in the Court of Common Pleas, Easter term, 10 Geo. 3, and made between John Hawkins and Susannah his wife, who were seised of the premises therein and hereinafter mentioned for their, lives, and their eldest son and heir apparent Thomas Hawkins, who was seised thereof in tail of the first part; John Bradshaw and Mary Bradshaw spinster of the second part; William Wilby of the third part; E. T. H. Gower and N. Tuite of the fourth part; and K.. Tuite, James Bradshaw, H. Darell, and E. Pitts 656 HAWKINS V. KEMP of the fifth part; it is witnessed, that for the reasons therein mentioned, and for barring all estates tail* and all remainders and reversions expectant thereon of and in the manor, lands, and hereditaments thereinafter mentioned, and also in consideration of 10s. &e. John Hawkins, Susannah his wife, and Thomas Hawkins did grant, bargain and sell to W. Welby, his heirs, &c. the premises in question, among divers lands in the county of Kent, and the reversion and remainder, &e. and all the estate, fec.; habendum to the use of the said W. Welby, his heirs, &c.,~to the intent that he might become tenant of the freehold for suffering a common recovery of the same, in which E. T. H. Grower and N. Tuite should be demandants, W. Welby tenant, John Hawkins and Susannah [413] his wife first vouchees, and Thomas Hawkins second vouchee: declaration, that the recovery should enure until the intended marriage to the then uses, and after the marriage to the- use and intent that John Hawkins and Susannah his wife might during their joiiit lives and the life of the survivor receive , such annuity as therein mentioned: remainder to the use of the said R. Tuite, J. Bradshaw, H. Darell, and E. Pitts, for the term of 500 years from the intended marriage, sans waste, for securing the several sums of money therein mentioned : and after the expiration or sooner determination of the same term, and in the mean time subject thereto and chargeable as aforesaid, to the use of Thomas Hawkins and his assigns for life, sans waste: remainder to the use ,of the said E. T. H. Gower and N. Tuite, &c. to preserve the contingent remainders, remainder to the use, intent, and purpose, that Mary Bradshaw and her assigns might after the decease of Thomas Hawkins receive thereout for her life a yearly rent-charge; and subject thereto to the use of the first and every other son and sons of the body of the said Thomas Hawkins on the body of the said Mary Bradshaw to be begotten severally and successively in tail male: remainder to the use of the first and other sons of the said Thomas Hawkins by any after-taken wife successively in tail-male: remainder to the use of Henry Hawkins, third son of the said John Hawkins, for life, sans waste : remainder to the use 6f E. T. H. G. and N. T. &c., to preserve contingent remainders: remainder to the use of the first and other sons of thei said Henry Hawkins successively in tail male: remainder to the use of the said John Hawkins for life, sans waste, remainder to the use of the said E. T. H. G. and N. T- &c- to preserve contingent remainders: remainder to the use of the first and every other son of th& said John Hawkins by any [414] after-taken wife successively in tail male: remainder to the use of all and every the daughter and daughters as well of th.e~s.aid Thomas Hawkins as of the said Henry Hawkins, in equal shares as tenants in common in tail, with cross remainders in tail between them, if more than one ; and if all such daughters except one should die without issue, or there should be but one such daughter, then ~to the use of such surviving or only daughter in tail: remainder to the use of the right heirs of the said John Hawkins for ever. And among other provisoes is contained the following " Proviso, that it should be lawful for the said Thomas Hawkins, at any time or times thereafter, by any deed or deeds, instrument or instruments in writing, to be duly executed by him in the presence of and attested by three or more credible witnesses, and to be inrolled in one of His Majesty's Courts of Record at Westminster, by and with the consent and approbation in writing of the said Mary Bradshaw, John Hawkins, John Bradshaw, E. T. H. Grower, N. Tuite, E. Tuite, James Bradshaw, H. Darell, and E. Pitts, or the survivors or survivor of them, or the executors or administrators of such survivor, but not otherwise, to revoke, make void, alter, or change, all and every or'any of the uses, estates, trusts, powers, provisoes, limitations, declarations, and agreements respectively thereinbefore mentioned of or concerning all or any of the said thereby bargained and sold premises; and by the same or any other deed or deeds, instrument or instruments in writing, so executed and attested, and with such consent, and so to be inrolled respectively as aforesaid, and not otherwise, any new or other uses, estate or estates, trust or trusts, of or concerning all or any of the said premises whereto any such revocation as aforesaid should- extend, to declare, limit, or [415] appoint, with or without power of revocation and new appointment, or otherwise howsoever, as to the said Thomas Hawkins with such consent and approbation as aforesaid should seem meet; any thing thereinbefore contained to the contrary notwithstanding. This was executed by the said John Hawkins, Sus. Hawkins, Thomas Hawkins, John Bradshaw, Mary Bradshaw, William Welby, E. T. H. Gower, N. Tuite, E. Tuite, Jas. Bradshaw, H. Darell, and E. Pitts, in the presence of two witnesses, and a receipt by T. Hawkins for the sum of 10,0001. indorsed 3 EAST, 416...
To continue reading
Request your trial
-
Smith Barney Private Trust Company v Cebreros
...& Succession Duties Commr. v. Bowring, [1962] A.C. 171; [1960] 3 All E.R. 188, referred to. (3) Hawkins v. KempENR(1803), 3 East 410; 102 E.R. 655; [1803–13] All E.R. Rep. 506, followed. (4) Hawksley v. OutramELR(1892), 3 Ch. D. 359; 67 L.T. 804, followed. (5) Heron Garage Properties v. Mos......
-
Al-Ibraheem v Bank of Butterfield Intl
...NunnELR(1879), 4 Q.B.D. 661; 48 L.J.Q.B. 591, observations of Brett and Bramwell, L.JJ. applied. (2) Hawkins v. KempENR(1803), 3 East 410; 102 E.R. 655, dicta of Lord Ellenborough, C.J. applied. (3) Mansfield v. PeachENR(1814), 2 M. & S. 576; 105 E.R. 496. (4) Reardon Smith Line Ltd. v. Han......
-
Hallewell and Another v James Morrell, Robert Morrell, and William Ambrose
...record. Martin v. Smith shews that the declaration must contain a general averment that the plaintiff has a good title. Hawkins v. Kemp (3 East, 411) is to the same effect. [Erskine J. Will it not be time enough for the plaintiffs to make: out .a good title when they are bound to convey ?] ......