Neesom v Clarkson

JurisdictionEngland & Wales
Judgment Date10 December 1842
Date10 December 1842
CourtHigh Court of Chancery

English Reports Citation: 67 E.R. 68

HIGH COURT OF CHANCERY

Neesom
and
Clarkson

S. C. 12 L. J. Ch. 99; 6 Jur. 1055. Observed upon, Parkinson v. Hanbury, 1867, L. R. 2 H. L. 1.

[163] neesom v. claekson. Nov. 12, 14, Dec. 10, 1842. [S. C. 12 L. J. Ch. 99; 6 Jur. 1055. Observed upon, Parkinson v. Hanbury, 1867, L. E. 2 H. L. L] A. contracted to purchase real estate, and died, having made his widow his universal devisee and legatee. The widow married B., who, in 1793, took a conveyance of the premises contracted to be purchased by A. to himself and a trustee, reciting the contract by A.-his will and death-the marriage of his widow with B.; and that " thereupon B. became entitled to the beneficial interest in the purchase." B. in 1817 sold the premises to C., and C. took a conveyance from B. and his trustee,, reciting that, by certain good and sufficient assurances in the law, the premise* stood limited to B. and the trustee, but not reciting the deed of 1793. The widow died, leaving her heir at law an infant, who came of age in 1825 in the lifetime of B. The bill was brought by the heir at law in 1836, after the death of B., for a conveyance of the estate. Held, that the recital in the deed must be understood as stating that the widow was devisee of the purchased premises, and that the title of B. accrued by the marriage; that the Court would not presume, in favour of a purchaser, that B. had any other title than was so represented ; that C. must be presumed to have been cognizant of, and to have taken the title of B. his vendor; that the equitable title of the heir at, law of widow was not affected by the lapse of time ; and that the heir at law was. entitled to the decree for a conveyance of the estate. 2 HARE, 164. NEESOM V. CLARKSON 69 John Cowling, in 1792, purchased, at a sale by auction, certain freehold premises at Leeds, known as the Angel Inn, for the sum of 1500, but before any conveyance of the estate was executed, or the purchase-money paid, Cowling died, having by his will, made in January 1793, devised all his real estate to Ann, his widow, and made her his residuary legatee and executrix. Ann, the widow, proved the will. In July 1793 Ann, the widow, married William Sykes. By indentures of lease and release, dated the 24th and 25th of September 1793, the latter made between Wade Brown (the vendor of the premises), devisee in trust thereof, appointed by the will of Alice By water, deceased, of the first part; the said William Sykes and Ann, his wife (who was the widow and relict of the said John Cowling, deceased), of the second part; and L. Nicholson of the third part; reciting the will of Alice Bywater, and reciting that the said Wade Brown, in pursuance of the trust in him reposed by the said will, caused the tenements and hereditaments thereinafter mentioned (being all the residue of the real estate of the said Alice Bywater) to be advertised in the public newspapers for [164] sale by auction on the 3d day of October 1792, on which day a meeting was held; and the said John Cowling, being the highest bidder at such sale, became the purchaser of the said tenements and hereditaments at or for the price or sum of 1500, being the best price that could be had or gotten for the same; and reciting that the said John Cowling had since departed this life, having first made and duly executed his last will and testament, and thereof appointed the said Ann Sykes, his then wife, universal devisee and legatee, and sole executrix; and reciting that the said William Sykes had, since the death of the said John Cowling, intermarried with the said Ann, his widow, and thereupon become entitled to the beneficial interest in the said purchase, and had agreed to complete the same, but, not being provided with the whole of the purchase-money, the said Wade Brown had agreed to let the sum of 1100, part thereof, remain in the hands of the said William Sykes, upon security of the said tenements and hereditaments, in manner hereinafter mentioned and expressed-the said premises called the Angel Inn were conveyed and assured to L. Nicholson and his heirs, as to a term of 1000 years, to the use of the said Wade Brown, for securing payment of the said 1100 and interest thereon; and as to the remainder, to the use of the said William Sykes and L. Nicholson and their heirs, in trust, nevertheless, as to the estate of the said L. Nicholson and his heirs, for the said William Sykes, his heirs and assigns. By an indenture of demise and mortgage of the 5th of September 1800, made between the said William Sykes of the first part; Nicholson of the second part; and Wade Brown of the third part, William Sykes and Nicholson demised the premises to Wade Brown, his executors, &c., for the term of 1000 years, subject to a [165] proviso for redemption of the said premises on payment of 500, with interest as therein mentioned. In pursuance of a contract for the sale of the premises by William Sykes to Benjamin Clarkson an indenture, dated the 30th of September 1817, was made between the said William Sykes of the first part; L. Nicholson of the second part; Wade Brown of the third part; Benjamin Clarkson of the fourth part; and T. Hampshire (a trustee for Clarkson) of the fifth part; reciting that, under and by virtue of certain good and sufficient conveyances and assurances in the law, the said premises then stood limited and assured to the use of the said William Sykes and L. Nicholson, and their heirs, nevertheless as to the estate and interest of the said L. Nicholson and his heirs therein, in trust for the said William Sykes, his heirs and assigns for ever, subject only to the mortgage next thereinafter mentioned; and reciting the said demise by way of mortgage of the 5th September 1800, that the estate of the said Wade Brown thereunder had become absolute at law, and that the sum of 150 only remained due on the said mortgage; and reciting that Benjamin Clarkson had, some time previously, contracted and agreed with William Sykes for the absolute purchase of an estate of inheritance in fee-simple, in possession, free from all incumbrances of and in the said premises, at or for the price or sum of 2700, out of which it had been agreed that the said sum of 150, so due and owing to the said Wade Brown, should in the first place be paid; and reciting that the said William Sykes had applied to, and prevailed upon, the said L. Nicholson and Wade Brown to 7Q NBESOM V. CLARKSON 2 HARE, 166. join in conveying and assuring the said hereditaments to the said Benjamin Clarkson and his heirs, to the uses and in manner thereinafter mentioned; and the said premises and the said term therein were thereby conveyed and assigned to Benjamin Clarkson and his heirs in fee. Clarkson [166] afterwards died, having devised the premises to the Defendants. Ann Sykes (formerly the widow of Cowling) died on the 9th of September 1821, leaving the Plaintiff, her daughter by a former husband, her heiress at law, then an infant. The Plaintiff attained twenty-one years of age in August 1825, and intermarried with Neesom, the other Plaintiff, in January 1826. William Sykes died in August 1835. In August 1836 the bill was filed against the devisees of Clarkson, praying that they might be decreed to convey the premises to the Plaintiff, and to account for the rents and profits, the Plaintiff offering to pay what might be due to the Defendants in respect of the purchase-money. The answer stated that Cowling, as the Defendants believed, never entered into any written or binding contract for the purchase of the premises; that at his death his property was sworn to be under the value of ,40, and that he was in fact insolvent; that Sykes entered into an independent contract for the purchase, and to complete the same borrowed 1100 from Wade Brown, and paid the residue out of his own monies. The answer stated the indentures of the 24th and 25th of November 1793, and that the premises were thereby conveyed and assured in the manner above stated.(l) The [167] answer of the Defendants said they did not believe that any interest in the premises passed by the will of Cowling to Ann Sykes, or that Ann Sykes had ever any interest in them; and they insisted that they were purchasers for valuable consideration, without notice of any such interest, and as such had been in undisturbed possession since 1817. Mr. Wakefield, Mr. C. P. Cooper, Mr. Kenyon Parker and Mr. Hodgson, for the Plaintiff. The contract made by Cowling for the purchase of the premises in question being made at a sale by auction must, at this distance of time, be presumed, without evidence of any written contract, to have been made in a manner which was binding within the Statute of Frauds. The auctioneer, for that purpose, is the agent of both parties. Emmerson v. Heelis (2 Taunt. 38); White v. Proctor (4 Id. 209); 1 Sugd. Vend. & Pur. p. 188, 10th ed. The effect of the contract was, therefore, to vest in Cowling the equitable interest in the premises. His widow took the same interest as his devisee. Supposing that the widow had then died intestate-the Plaintiff would have taken the premises as heiress at law, either subject to the payment of the purchase-money in the nature of a mortgage, or with the right of having the purchase-money raised and paid out of the personal estate. The equitable interest, however, remained vested in the widow at the time of her marriage with Sykes. Nothing has since taken [168] place to divest the widow and her heirs of that interest: it could not pass without fine, the widow having died in the lifetime of Sykes. The Defendants are bound by the recitals in the deed of 1793, and they do not in fact, by their answer, suggest that they derive their title in any other manner. (1) Title-deed of the Defendant ordered to be produced, where it contained a recital that might affect him with constructive notice of the Plaintiff's interest in the estate. The Defendants admitted the possession of the...

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4 cases
  • Adams v Sworder
    • United Kingdom
    • High Court of Chancery
    • 22 Diciembre 1863
    ...192); Murray v. Palmer (2 Sch. & Lef. 474-490); Watt v. Grove (Ib. 492); Gibson v. D'Este (3 Y. & C. C. C. 542, 581); Neesmn v. Clarkson (2 Hare, 163, 176); Douglas v. Culverwell (3 Giff. 251; affirmed, 10 Weekly Rep. 327); Pearson v. Seavan (28 Beav. 598). Mr. Marten, for Sworder. The acco......
  • Wright v Vanderplank
    • United Kingdom
    • High Court of Chancery
    • 8 Marzo 1856
    ...254); Rock v. O'Brien (1 Ball & B. 330); [134] Dunbar v. Trendennick (2 Ball & B. 304); Bellamy v. Sabine (2 Ph. 425); Neesam v. Clarkson (2 Hare, 163); Phillipstm v. Gatty (7 Hare, 516); Archer v. Hudson (7 Beav. 551); Hoghton v. Hoghton (15 Beav. 278); Baker v. Bradley (7 De G. M. & G. 59......
  • Neesom v Clarkson
    • United Kingdom
    • High Court of Chancery
    • 18 Enero 1845
    ...English Reports Citation: 67 E.R. 576 HIGH COURT OF CHANCERY Neesom and Clarkson S. C. 9 Jur. 822. For previous proceedings, see 2 Hare, 163. [97] neesom v. clarkson. Nov. 15, 18, 20, Dec. 19, 1844; Jan. 18, 1845. [S. C. 9 Jur. 822. For previous proceedings, see 2 Hare, 163.] The wife being......
  • Re Unsworth's Trust
    • United Kingdom
    • High Court of Chancery
    • 17 Febrero 1865
    ...only four per cent, in many cases. They cited Pince v. Beattie (32 L. J. 734); Berry v. Armistead (2 Keene, 229) J Neesom v. Clarfaon (2 Hare, 163). Mr. Babington, for the Davis family, followed the same line of argument. Mr. Lindley and Mr. Everett, for other parties. Mr. Busk, in reply. t......

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