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Palmer v Leycester

Nominate Series Maclean & Robinson's Appeal Cases English Reports Cited authorities 17 Cited in 12 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date15 March 1836
Date15 March 1836
CourtHigh Court of Chancery

English Reports Citation: 47 E.R. 230

HIGH COURT OF CHANCERY

Palmer
and
Leycester

S. C. 1 Keen, 247, 579; 3 My. & Cr. 459; 40 E. R. 1004 (with note).

[66] booth v. leycester. palmer v. leycester. Feb. 24, March 7, 12, 15. [S. C. 1 Keen, 247, 579; 3 My. & Cr. 459; 40 E. R. 1004 (with note).] Interest on Arrears of Annuities. Application to dismiss a Bill after it is set down for hearing. The case was this:-Sir John Roger Palmer, being entitled in tail to certain estates in Ireland, under the will and settlement of his grandfather and father (subject to certain charges thereon), suffered a recovery. He afterwards married Miss Hanway, who was entitled under the will of Mr. Hanway, to a moiety of the property forming Hanway Street, and to other property in the funds. On the marriage a settlement was made, by which the Hanway estate was to be sold, and the produce applied in payment of the charges on the Irish estates, which estates were to be [66] charged with a jointure for Mary Hanway, and subject thereto to Sir J. R. Palmer for life, to Miss Hanway for life, then for the children, with an ultimate limitation to Sir J. R. Palmer in fee. A part of the Irish estates were sold under a decree of the Court of Chancery in Ireland, and the produce applied, amongst other things, in payment of the incumbrances. Sir J. R. Palmer, having got into difficulties, borrowed money on annuity, and afterwards went to reside in the Isle of Man, where he died intestate and without issue. After his death the trustees accumulated the rents of the Hanway estate, and paid Lady Palmer's jointure out of the part of the Irish estates which remained unsold. In the meantime the annuities remained unpaid. Sir Henry Palmer was-the heir at law of Sir John Roger Palmer. The first bill was filed by the assignee of the arrears of the annuity, who claimed the arrears and interest thereon for six or seven years. The second bill was filed by Sir Henry Palmer against the trustees of the marriage settlement of Sir J. R. Palmer and Lady Palmer (she having died), in order to establish his rights under the settlement as the heir at law of Sir J. R. Palmer. DONNELLY 7. BOOTH V. LEYCESTER 231 The annuity from which the interest on the arrears of the annuity was claimed, was charged and chargeable upon the Han way estate, and to be paid during the life of Sir J. R. Palmer, with a covenant to pay the annuity, and with power of distress and entry, if the annuity should bo in arrear for twenty-one days, for satisfying the arrears of the annuity, and all " costs, damages, and expenses " occasioned by non-payment of the annuity; and of entry and receipt of the rents and profits after forty days until satisfied the annuity and all arrears, and all "coats, damages, and expenses " occasioned by non-payments ; then followed a demise of the moiety of the Hanway estate to a trustee for a term of years, in trust for securing the regular payment of the annuity. There was also a proviso for repurchase, on one month's notice. It was also secured by a warrant of attorney, and there was a memorandum of agreement indorsed on the warrant of attorney, stating that it was made for the purpose of securing the annuity, and that no judgment should be entered up, unless the annuity was in arrear for twenty-eight clays. There was no allusion to any interest on the arrears: and it was admitted that this annuity deed was made in the usual form. Judgment had been entered up on the warrant of attorney. The annuities were thirty-two in number, and Mr. Booth had purchased the arrears of some of these annuities. It was however agreed, that as all the annuity deeds were nearly alike, that the decision as to two of the deeds should settle the question as to all the rest. For the Plaintiff, Booth, it was contended that inasmuch as that [67] Sir J. R. Palmer was not in England, that the Plaintiff could not enforce his security against him on the judgment; and that the words " costs, damages, and expenses" in the deeds of annuity would be considered as an agreement that the arrears should be paid, and that notice had been given to the original trustees, but that the present trustees were only the representatives of the original trustees, except one, which might account for their denying having received notice. It was contended for the Plaintiff, Sir Henry Palmer, that Sir J. R. Palmer took an estate tail by implication, which estate had been barred by recovery, and that Sir H. Palmer was entitled to take the fee under the settlement made on the marriage of Sir J. R. Palmer, as his heir at law, and claimed the Hanway estate in substitution of a part of the Irish estates, which had been sold to pay those incumbrances which ought to have been paid out of the proceeds of the sale of the Hanway estate. For the Defendants it was contended that, the Courts of law would not grant interest on the arrears, and if they did, there was no reason why a Court of Equity should ; that the words in the annuity deed did not at all apply to the interest on the arrears; and that the trustees were going on paying the rents to Sir J. R. Palmer, without the annuitants making any claim till 1832 ; and that since the case of Tew v. ffinterton, there was no instance of interest ever having been recovered on the arrears-of an annuity; that there was a sort of claim made for arrears in Anderson v. Dwyer ; and that if you brought an action, a jury would not give interest, except in the shape of damages, and that this was a case in which they would not give damages. Mr. Tinney during the argument, contended that Ridgway's Reports (which had been cited), were not frequently cited, and were not considered high authority, the master of the rolls said, that the book was not unfit to be cited. The trustees denied all notice of the annuities, and that if the interest on the arrears could be claimed under the words " costs, damages, and expenses," it must in some cases come within the usury laws. It was further contended, that Sir J. R. Palmer only took an estate for life, and that Sir H. Palmer took an estate tail under the settlement of his father, consequently, his eldest son ought to have been made a party. A question then arose, whether the bill should not be dismissed with costs. the master of the rolls [Lord Langdale] said it was irregular to obtain an order to dismiss the bill with costs, when the cause had been set down for hearing. April 16, 1836. His lordship, in giving judgment, said that the Plaintiffs in the first case claimed to be entitled to certain arrears, together with interest upon thoae arrears. [68] The Plaintiff in the second cause claimed to be entitled as heir at law of Sir J. R. Palmer, and to have the Middlesex estate conveyed and assigned to him by 232 BOOTH V. LEYCESTEB DONNELLY 69. the trustees, a part of the Irish estates having been sold, instead of the Middlesex estate. Mr. Hanway, to whom the property belonged, made his will in 1772, whereby, after giving certain annuities, gave all his estates to his nephew, Sir W. Hanway, for life, remainder to his children ; the testator died in August 1772 ; his nephew died in 1780, leaving two children, a son and a daughter ; the sou attained twenty-one and died, and the daughter attained twenty-one; each were entitled, besides a moiety of the Hanway estate, to certain sums of stock, and a sum of money secured by mortgage. In 1791, a marriage took place between Miss Hanway, the daughter, and Sir John Roger Palmer. Sir J. E. Palmer was entitled to estates in Ireland, under the will and settlement of his father and grandfather, charged with incumbrances effected by both of them. .Sir J. E. Palmer had also charged the estates with his own debts. By articles made on the marriage of Sir J. E. Palmer with Miss Hanway, and of the settlement made in pursuance thereof, the Hanway estate was conveyed to trustees, subject to a term of two thousand years, in trust to sell and pay off the incumbrances in the priority therein mentioned; and the Irish estates were conveyed to trustees for three thousand years, in trust, to secure a jointure by way of pin-money to Miss Hanway, and subject thereto, they were limited to Sir J. E. Palmer for life, then to Miss Hanway for life, then in favour of the children, with an ultimate limitation to Sir J. E. Palmer in fee. It appeared that a suit had been instituted in Ireland for the purpose of fore-closing the equity of redemption, and the suit having been brought to a hearing, it was decreed that a part of the estates should be sold, and the money applied in payment of the incumbrances. The Middlesex estate was not sold, and it was said that the trustees had applied a part of the personal property given by the will of Mr. Hanway towards reducing the debts charged on the Irish estates. In 1794, the brother of Lady Palmer died, and she became entitled to receive his share, given by the will of Mr. Hanway. Sir J. E. Palmer being indebted, borrowed money on annuities, and in August 1809, one of the annuities was assigned to Mr. Booth. (His Lordship here repeated what we have already written, as to the mode in which the annuity was secured.) A judgment was entered up in 1810, on the warrant of attorney. In February 1819, Sir J. E. Palmer died intestate, and without issue; and it was alleged that he died in embarrassed circumstances, and that he had retired to the Isle of Man. After the death of Sir J. E. Palmer, Lady Palmer received her [69] jointure of 600 out of the Irish estates, and the trustees accumulated the rents of the Middlesex estates. In April 1829, Lady Palmer's share of the mortgage money, given by the will of Mr. Hanway, was received by the trustees and invested. Booth having purchased the arrears of the annuities, took an assignment in 1831 ; the deed recited that there was clue on the judgment for arrears the sum of 486, 3s. 6d., and that he had purchased the arrears (which were for six or seven years), for 98. Lady...

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