Omerod v Hardman
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1800 |
| Date | 01 January 1800 |
| Court | High Court of Chancery |
English Reports Citation: 31 E.R. 825
IN THE DUCHY COURT OF LANCASTER.
in the duchy court of lancaster. Chambre, Justice; Graham, Baron. June 18th, 1800; Jan. 11th, Feb. 1th, Uth, 1801. omerod v. hardman. Appeal to the Chancellor of the Duchy of Lancaster from a decree of the Vice-Chancellor, dismissing the bill, affirmed by him on a rehearing on the petition of the Plaintiff. Bill for specific performance of a contract for sale of an estate upon various objections to the title dismissed in the first instance without a reference. Lawrence Taylor, seised to him and his heirs, on the 1st of November 1788, for more effectually securing the payment of his just debts and other purposes surrendered to the use of Benjamin [723] Wilson and the Plaintiff and the survivor and his heirs, to stand fined and seised of the premises upon the uses and trusts mentioned by indentures of equal date. By those indentures, between Lawrence Taylor and the trustees, the trusts arc declared; that they should with all convenient speed absolutely sell and dispose of the same by auction or otherwise for the best price, that could be got for the same : or if the said feoffees should be mindful to raise money on all or any part of said premises by way of mortgage, and not to sell or dispose of the same, they should have power to raise so much money as should be thought necessary by way of mortgage on all or any part of said premises for the uses and trusts after mentioned : viz. so much as should be thought sufficient to pay off and discharge all the just debts of Lawrence Taylor, after all his personal estate and effects should have been applied in discharge thereof ; and also, that the feoffees should receive the rents, issues arid profits, of the premises, and keep down the interest yearly, as it should become due ; and, after payment thereof and the expences of the trust, pay Lawrence Taylor 20 a-year during his life ; 12 a-year to his wife for life in bar of dower, if she should choose to accept the same ; and not otherwise ; 10 a-year to his son James Taylor during his life ; to bis daughter Mary, the legal interest of 4-00 (Note : The expression was " the legal interest of 400 a-year "), payable yearly at the expiration of eighteen months from his decease during her life ; and in case she should leave any child or children, then the interest thereof to be paid towards maintenance and education, of him, her, or them, till the youngest should attain the age of twenty-one ; and then the said sum of 400 to be equally divided among them, share and share alike ; and in case they should all die, before the youngest son should attain twenty-one, then the said sum of 400 to cease and sink into the said premises ; and after payment and satisfaction of all the said debts, annuities and charges, to pay the overplus money yearly remaining out of the rents and profits and other effects, that should remain in their hands, unto his son Lawrence Taylor and his assigns ; and when the said trusts should be fully ended and satisfied, to surrender all said premises, which should not be sold, to his said son Lawrence Taylor, his heirs and assigns for ever. [724] Lawrence Taylor died in 1797. Soon after his death the Plaintiff, the surviving trustee, entered into a contract in writing with the Defendant, executed on the 5th of October 1797, to sell him the trust estates for the sum of 1680, to be paid on or before the 1st of May next after the execution of a good title ; and on the 7th of July 1798, the bill was filed in the Court of Chancery of the County Palatine of Lancaster against the purchaser for a specific performance of that contract. When the cause was hoard, James Tat/lor, the second son, was a lunatic ; and 826 ' OMEROD 1). HA&DMAN 5 VES. JOT. 726. had been so for many years. The widow was living; and the daughter Mary still unmarried. In. 1790 the trustees had made a mortgage, comprising the premises afterwards sold to the Defendant, but not confined to them, for 1700, and from an account in evidence it appeared, but not distinctly, that they had previously sold some part of the premises. The Defendant took possession of such part of the lands as were in possession of the widow, except the buildings, being about three-sevenths of the whole, and continued in possession till May, during which time he exorcised acts of ownership ; letting of! part ; digging, planting ; and impounding a cow trespassing on the premises. The heir having about the same time got into possession of the house with the widow, the purchaser required an abstract; which was delivered in March ; and then, he objected to proceed in the contract. The general ground of objection taken, by the Defendant, that the Plaintiff could not make a good title, rested upon the following points : that upon the construction, of the deed the trustees, having mortgaged, had no power to sell : the want of the usual clause, that the receipt of the trustees shall discharge the purchaser; the charges in favor of the widow, children and grand-children ; that the widow had not waived her dower, and accepted the annuity ; the possession taken by the heir against the consent of the purchaser ; that the heir and widow wore not parties ; and that the possession bad not been delivered according to the actual agreement. With respect to that objection the answer stated, that it was at the same time agreed, though not made part of the written agreement, that the Defendant should be let into possession of the [725] meadow on the 2d of February, of the arable and pasture on. the 25th of March, and of the housing and building on the 1st of May ; being the usual times in that country for the purchasers to take possession. The Defendant also stated, that he believes there will be a deficiency to answer the charges. The bill was dismissed by the Vice Chancellor with, costs. The Plaintiff being dissatisfied with, that decree, the cause was upon, his petition ro-bcard before the Vice Chancellor:, and the decree affirmed on the 18th of June 1799. The Plaintiff then appealed to the Chancellor of the Duchy ; (1) and on the 18th of June 1800, the Earl of Liverpool, Chancellor, said, he had understood, a .doubt had arisen respecting the jurisdiction of the Duchy Court at Westminster to review the decree of the Vice-Chancellor at Lancaster : but a search had been made in the records of the Court, which left no doubt, that the Court had such appellate jurisdiction. (Said 1 Vern. 443, Addison v. Jlindmarsh, to be by Act of Parliament.) The appeal, being then adjourned,.came on again, before Chambre, Justice, and Graham, Baron. Mr. Piggoll and Mr. Stanley, for the Plaintiff. (The arguments ex'relations.) Upon a bill for specific performance of a contract it is not necessary to bring before the Court any other persons than the parties to the contract; and the usual course is upon a reference to the Master for1 him to report what is necessary to bo done, and who should do it, under the direction of the Court, and for that purpose, that such, persons should be made parties. The objections made by this .Defendant are such, as it is the usual course to refer to the Master. In a case before Sir Thomas Seivell, and afterwards upon, a re-hearing before Lord Thurlow, where a purchaser had been kept out of possession many years by the unlawful possession of a person, who had conveyed his estate to trustees to sell, that was not considered a sufficient ground for...
To continue reading
Request your trial