Meek v Kettlewell
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1843 |
| Date | 06 December 1843 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 662
HIGH COURT OF CHANCERY
S. C. 1 Hare, 464; 11 L. J. Ch. 293; 6 Jur. 550; 13 L. J. Ch. 28; 7 Jur. 1120. See Bridge v. Bridge, 1852, 16 Beav. 322; De Hoghton v. Money, 1865, L. R. 1 Eq. 158; Richardson v. Richardson, 1867, L. R. 3 Eq. 693; Pengold v. Mould, 1867, L. R. 4 Eq. 564; Harding v. Harding, 1886, 17 Q. B. D. 446; In re. Parsons, 1890, 45 Ch. D. 58.
meek v. kettlewell. FeJ . 15, '23, 24, Dec. G, 1843. [S. C. 1 Hare, 464; 11 L. J. Ch. 293; 6 Jur. 550; 13 L. ,f. Ch. 28; 7 Jur. 1120. See Bridge v. B-mltje-, 1852, 16 Beav. 322 ; De Hoghton v. Money, 1865, L. R. 1 Eq. 158 ; Riclianlsmi v. RicJianlsoa,, 1867, L. R. 3 Eq. 693 ; Pent/old v. Mould, 1867, L. R. 4 Eq. 564; Harding v. Harding, 1886, 17 Q. B. I). 446; In re. Parson*, 1890, 45 Ch. D. 58.] A testator bequeathed a sum of money to trustees in trust for his daughter for life, and in case she died without leaving issue, for her next of kin, exclusive of her husband. During the lifetime of the daughter, her mother, as presumptive next of kin, by a voluntary deed assigned her expectant interest in reversion to the husband. Held, on the death of the daughter, without leaving issue, that the assignment operated only as an agreement to assign ; and, consequently, that being voluntary, a Court of Equity would not enforce it. This was an appeal, by the Plaintiff, from a decree of Vice-Chancellor Wigram, dismissing the bill, without costs. The facts of the case, which are briefly stated at the commencement of the Lord Chancellor's judgment, will be found more fully detailed in the report of the case upon the hearing in the Court below (1 Hare, 464). The appeal now coming on to be heard, the solicitor-general [Follett] and Mr. Hetherington, for the Appellant, contended that the present case was distinguishable from those of (John an v. tiarel (1 Ves. jun. 50), Antrolms v. Smith (12 Ves. 39), and Edwards \. Jvnea (1 Myl. & Cr. 226), on which the Vice-Chancellor had rested his decision ; for in all those cases the subject-matter of the assignment was a legal chose in action which could be reduced into possession only by an action at law, and consequently the very act of resorting for relief to a Court of Equity implied an admission that the assignment, as it stood, was incomplete. In the present case, on the contrary, the subject-matter of the assignment^ - a contingent reversionary interest in a sum of money [343] vested iif trustees - was purely equitable in its nature : the right to which, whether in the hands of the assignor or the assignee, was a right which could only be enforced in a Court of Equity : that right was what the deed of the 10th of September 1839 purported to assign, and the bill proceeded upon the assumption that the assignment was complete by virtue of the deed alone, for it prayed no direct relief against the Defendant Mary Kettlewell, the assignor, but merely asked that the trustees might be decreed to pay the money to the Plaintiff, the assignee, in pursuance of the deed. The Vice-Chancellor, indeed, although he rested his decision upon the contingent nature of the interest in question, seemed to think that the assignment, being voluntary, would have been ineffectual without some further act, whatever might have been tho nature of the interest ; for he laid it down as what he conceived to be the established loctrine of the Court, " that a voluntary assignment, though in a legal form, if unaccompanied by any other act, was not to be regarded as effectual to pass an equitable interest," at the same time intimating that notice to the party, in whose hands the legal title was vested, was necessary to make the assignment complete ; but the case of HoUmvat/ v. He-cul-inyton (8 Him. 324), to which he referred in connection with that proposition, was, in fact, no authority for it ; and, on the other hand, Moanr. v. Cadogan (Sug. V. & P. app. xxvii.) was an instance in which the Court gave effect to such an assignment, and uo mention was there made of notice. The only cases, indeed, in which notice was material in reference to transfers of purely equitable interests were those in which there was a contest for priority between two different 1 PH. 344. MEEK V. KETTLEVVELL 663 assignees of the same fund, as in Dearie v. Hall (3 Russ. 1): as between the assignor and the assignee, the assignment itself was binding and [344] conclusive, and no notice to the trustee was necessary to perfect it. With respect to the peculiar nature of the interest which was the subject of this assignment, they submitted that there was a fallacy in comparing it, as the Vice-Chancellor had done, to the expectancy of an heir in the lifetime of his ancestor ; that being a mere possibility of legal succession, whereas this was a contingent interest under a limitation in a will, and the same thing as if the limitation had been, to the Defendant Mary Kettlewell, by name, in case her daughter died in her lifetime without leaving issue. An interest of that kind would have been devisable under the Statute of Wills;' Jonw v. Roe, (3 T. R. 88); and would pass to the assignees in bankruptcy; Hiyden v. Williamson (3 P. W. 131); and though it did not therefore follow that it would be assignable at law by deed, yet no doubt could be entertained that it was so assignable in equity if supported by a valuable consideration ; Douglas v. Kusnell (4 Sim. 524), Himle v. Make (3 Beav. 234), and, if so, why should it not be so assignable without consideration? It was clear from tiloane v. (Jadoyan that a vested equitable interest might be so assigned: and Wriyht v. WriijM (1 Ves. 409) was an instance in which an assignment even of the possibility of an expectant heir had been upheld in equity, although supported only by a meritorious consideration, which for this purpose was the same thing as no consideration at all; Dillon v. (Joppin (4 M. & C. 647). They also suggested that if the Court should be of opinion that the deed was not a complete assignment of [345] the interest, it might take effect as a constructive declaration of trust; Ex parte pijc (18 Ves. 140); but this point was not much pressed. Mr. Bethell, Mr. Wilbraham and Mr. Willcock, for the Respondent, said that the fallacy of the argument on the other side consisted in reasoning upon certain technical terras, which were adopted in Courts of Equity by analogy only, as if they were to be taken in the proper and literal sense which they bore in Courts of law. It was true that in loose and familiar language it was sometimes said that choses in action, though not assignable at law, were assignable in equity : the fact, however, being that they were not, strictly speaking, assignable in equity any more than at law ; but that a Court of Equity would, in favour of the intent, treat what purported to be an assignment as an agreement to assign, and would deal with it upon the same principles on which it was in the habit of dealing with agreements in general; that is, it would enforce it when supported by a valuable consideration, but not otherwise. The same explanation was to be given of those cases in which property to be after acquired, or possibilities whether legal or equitable, were familiarly but inaccurately spoken of as being assignable in equity though not at law. With respect to the doctrine incidentally laid down by the Vice-Chancellor in his judgment, and which had been questioned on the other side, it might be admitted, without prejudice to the present argument, to be too broadly stated ; for, even supposing that in a case where the subject-matter of the assignment, though an equitable interest...
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