Newenham v Pemberton
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1847 |
| Date | 17 November 1847 |
| Court | High Court of Chancery |
English Reports Citation: 63 E.R. 1233
HIGH COURT OF CHANCERY
S. C. 17 L. J. Ch. 99; 11 Jur. 1071. See In re Potter, 1869, L. R. 7 Eq. 487. In re Briant, 1888, 39 Ch. D. 476.
1DEG.&SM. 6M. WORTH AM V. PEMBERTON 1233 [644] wortham v. pemberton. newenham v. pemberton. Nov. 17, 1847. [S. C. 17 L. J. Ch. 99; 11 Jur. 1071. See In re Potter, 1869, L. R 7 Eq. 487. In re Briant, 1888, 39 Ch. D. 476.] In a bill purporting to be exhibited by an infant Plaintiff by her next friend she was described by her maiden name, but was, in fact, clandestinely married. The Court refused a motion made on behalf of her husband (a Defendant) to have the bill taken off the file. The estate of a feme covert, tenant in tail in possession, subject to a jointure term, is equitable during the continuance of the term, for the purpose of entitling her to a settlement, on a bill filed by her. x And the Court directed a settlement, although the bill did not expressly pray to that effect. By indentures of lease, release and appointment, dated the 14th and 15th of August 1828, made between Mary Wortham of the one part, Christopher Pemberton and John Hawkins of the other part, certain' freehold estates in the parishes of Bassingbourne and Connington, in the county of Cambridge, were limited to the use of Henry Hawkins for life, with remainder to the use of Christopher Pemberton and John Hawkins during the life of Henry Hawkins, on trust to preserve contingent remainders, with remainders, as to the estate at Connington, after limitations in favour of Francis Wortham and of his sons^ none of which took effect, to the use of the daughter or daughters of Francis Wortham, in tail (if more than one, as tenants in common) with divers remainders over. And it was provided that it should be lawful for Henry Hawkins to charge the estates with a rent-charge, by way of jointure for his wife, not exceeding 400 a year, and to limit the estates to any person or persons for any term of years, to secure such jointure upon such trusts for better securing the payment of such yearly rent as to him, the said Henry Hawkins, should seem meet. And it was provided that, if any such jointure should take effect, and there should be a failure of issue of Henry Hawkins, so that the estates at Bassingbourne and Connington should go to separate uses, then 200 should be charged on the Bassingbourne estate, and 200 on the Connington estate. By an indenture of November 13th, 1829, made between Henry Hawkins of the first part, Maria Eleanor Osborne of the second part, and George Osborne, John Dick Bur,naby, William Hawkins and Ernest Hawkins of the third part, being a settlement made in contemplation of the marriage of Henry Hawkins and Maria Eleanor Osborne, [645] Henry Hawkins, in exercise of the powers contained in the former deed, charged the estates with a rent-charge of 400 per annum, to take effect and commence from his decease, and during the life of his wife. By the same indenture he limited and appointed the estates to the use of George Osborne, John Dick Burnaby, William Hawkins and Ernest Hawkins, their executors, administrators and assigns, for 200 years, to commence from his death, upon trust for better securing the due and regular payment of the rent-charge of 400 thereinbefore limited and appointed to Maria Eleanor Osborne ; but, nevertheless, to permit and suffer the person or persons who should, for the time being, either at law or in equity, be entitled to the immediate reversion, freehold and inheritance of the said manors, messuages, hereditaments and premises expectant on the determination of the said term of 200 years, to enjoy, receive and take the rents, issues and profits of the same premises, to and for his, her and their own use and benefit, until default should happen to be made of or in payment of the said annual sum or yearly rent-charge of 400 thereby limited, or some part thereof, at the times and in manner thereinbefore mentioned and appointed for payment thereof. And upon further trust, in ease the same annual sum or yearly rent-charge or any part thereof should happen to be behind or unpaid by the space of two calendar months next over or after any of the said days or times whereon the same should be or become payable by virtue of that deed, then, and so often (and although no formal demand should have been made of such annual sum or yearly rent-charge, or of the arrears thereof), that the said trustees and the survivors and 1234 WORTHAM V. PEMBERTON 1DE G. & SM. 646- survivor of them, his executors or administrators, should from time to time, as often as the case should so happen, by and out of the rents, issues and profits of the same manors, messuages, lands, hereditaments and premises, or by demising, leasing or mortgaging the same, or a competent part thereof, for and during all or any part of the said term of 200 years, [646] or by bringing actions against all or any of the tenants or occupiers of the same premises, for recovering the rents then in arrear, or such other ways or means as to the said George Osborne the younger, John Dick, Burnaby William Hawkins and Ernest Hawkins, or the survivors or survivor of them, his executors or administrators, should seem meet and necessary, raise and levy such sum and sums of money as should be sufficient from time to time to pay and satisfy the said annual sum or yearly rent-charge of 400, or so much thereof as should from time to time during the continuance thereof happen to be in arrear and unpaid, together with such costs, charges, damages and expenses as the said Maria Eleanor Osborne or her assigns, or the said trustees or their respective executors or administrators, or any of them, should sustain, expend or be put unto, for or by reason of the non-payment of the same annual sum or yearly rent-charge, at the days and times, and in manner thereinbefore in that behalf mentioned; and should apply the monies so to be raised accordingly; and should permit and suffer the person or persons for the time being entitled, either in law or equity, to the immediate reversion, freehold or inheritance of the same manors, messuages, hereditaments and premises, expectant on the determination of the said term of 200 years, to receive and take the clear residue or surplus of the rents, issues and profits of the same manors, messuages, lands, hereditaments and premises, which should from time to time remain, after paying and satisfying the s'aid annual sum or yearly rent-charge of 400 and all arrears thereof, and all costs, charges and expenses attending the execution of the trusts thereinbefore mentioned, for his, her and their own use and benefit. And it was thereby further agreed and declared that, upon the death of the said Maria Eleanor Osborne, and the payment of the arrears of the said rent-charge, and when and so soon as the costs, charges and expenses of the trustees respectively, their respective executors, administrators and as-[647]-signs, incident to the execution of the same trusts, should be fully paid, reimbursed and satisfied, then and immediately thenceforth the said term of 200 years, as to such of the said manors, messuages, lands and other hereditaments therein comprised as should not have been sold, mortgaged or otherwise disposed of for the purposes aforesaid, should absolutely cease and...
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