Pendleton v Rooth
| Jurisdiction | England & Wales |
| Judgment Date | 25 November 1859 |
| Date | 25 November 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 289
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
S. C. 29 L. J. Ch. 265; 6 Jur. (N. S.), 182; 8 W. R. 101.
[81] pendleton v. rooth. Before the Lord Chancellor Lord Campbell and the Lords Justices. Nov. 21, 22, 23, 25, 1859. [S. C. 29 L. J. Ch. 265; 6 Jur. (N. S.), 182; 8 W. R. 101.] A mortgagee in fee, who had been in possession for more than twenty years, died in 1805, leaving a will, by which he devised the property to S. R., his eldest son in tail, with divers remainders over, and appointed him his executor and residuary legatee. In 1812, the persons claiming under the will of the mortgagor filed a bill against S. R. to redeem, and the suit was compromised in 1814 on the terms of S. R. paying a sum for the equity of redemption, which was accordingly conveyed to him. He afterwards died without issue, and without having done any act to bar the entail created by his father's will. Held, that his heir at law was entitled to the equitable fee, and that the remainder-men under his father's will had no title in equity. This was an appeal by the Defendants from a decree of Vice-Chancellor Stuart, proceeding on the ground that a purchase of an equity of redemption by a person who C. xxv.-10 290 PENDLETON V. HOOTH 1DB 0. F. fc J. 8. was tenant in tail under the will of the mortgagee, and also residuary legatee and executor, excluded the operation of the Statute of Limitations, so as to give the purchaser an equitable fee, though the mortgagee had been in possession more than twenty years without acknowledgment. [82] Samuel Rooth the elder, on the 13th of April 1776, was seised of one undirided third part in certain real estate at Newmarket, in the county of Derby. At the same time John Barker was seised of the remaining two undivided third parts in the same property, subject to a mortgage to Joseph Gregory. By indentures of lease and release, dated the 12th and 13th of April 1776, between Gregory of the first part, Barker of the second part, and Samuel Rooth the elder of the third part, Barker's two-thirds of the property were conveyed to Samuel Rooth the elder in fee, subject to redemption by John Barker, his heirs or assigns, on payment of £240 and interest. John Barker, by his will dated 6th March 1777, devised his real estate to his widow, with power to sell the same, or so much as should be required to pay debts, and gave the residue and all his personal estate to her during her widowhood ; and after her decease or marriage, he devised the residue of his real estate to John Walker and hii heirs, on trust to sell the same, and hold the proceeds upon certain trusts for the testator's children. John Barker died on the 7th of March 1777, leaving his wife named in his will and five children surviving him. In 1782, Samuel Rooth the elder brought an action of ejectment against Mrs. Barker, who was in possession of the mortgaged property, and obtained possession, which he retained till his death. Mrs. Barker married again in 1784. Samuel Rooth the elder, by his will dated the 18th of April 1805, devised the entirety of the Newmarket estate [83] to Samuel Rooth the younger, his heirs and assigns, describing it as "all those my messuages, cottages, houses, lands, tenements, hereditaments and premises, with the appurtenances thereunto belonging, situate, standing, lying and being at Newmarket aforesaid, and now in my occupation," subject to the payment thereout by his said son of a legacy of £1000 to the testator's daughter Elizabeth, and an annuity to his wife Elizabeth ; and the testator further gave and bequeathed to Samuel Rooth the younger certain other hereditaments, situated respectively at Henmoor, Ainmoor and near to Clay Cross, therein described, and all the residue of his personal estate and effects; and the will then directed that all his debts and funeral expenses should be paid by his son Samuel, and then proceeded as follows:- " But if my said son Samuel Rooth happen to die without heirs, then I give, devise and bequeath the said houses, lands, tenements and hereditaments and premises, with the appurtenances thereunto belonging, situated standing and being at Newmarket, Henmoor, Ainmoor and near to Clay Cross as before mentioned, unto my son Jeremiah Rooth, his heirs and assigns for ever, he paying unto each of his two sisters Mary and Elizabeth the sum of £250 each of good and lawful money of Great Britain; but if either or both of them my said daughters happen to be dead, leaving a lawful child behind them, then the said child or children shall represent their respective parents, and receive their respective shares. And I further will and order, that he shall pay the before-mentioned annuity or rent charge unto his mother, my wife, Elizabeth Rooth, during the term of her natural life, as aforesaid ; and also all my just debts, legacies, funeral expenses as before charged on the said estates. But if it so happen that both my sons die without heirs, then I give, devise and bequeath all my real and personal estates, [84] of what nature or kind soever, or wheresoever, unto my two daughters Mary and Elizabeth, their heirs or assigns for ever, share and share alike, subject to the said annuity or rent charge of £30 during the life of my said wife." The testator appointed Samuel Rooth the younger and his widow executor and executrix of his will. Samuel Rooth the elder died on the 27th of April 1805, and his will was proved by his widow and Samuel Rooth the younger. The will did not contain any bequest of the mortgage debt, nor in any way treat the mortgaged estate as subject to redemption. On the testator's death, Samuel Rooth the younger entered into possession of the estate, and paid the debts, funeral expenses and 1DEO. F.J. 83. PENDLETON V. BOOTH 291 legacies, and remained in possession until the execution of the indenture next to be stated. la 1812, the persons entitled under the will of John Barker instituted proceedings ior redemption of his two-thirds. These proceedings ended in a compromise, which was completed^ by indentures of lease and release, dated the 28th and 29th of January 1814. The release recited the mortgage to Gregory, the transfer and further charge to Samuel Booth the elder, the will of Barker, the recovery in ejectment by Samuel Rooth the elder, and his will, so far as regarded the appointment of executors (but without noticing any of the devises contained in it), his death, and the subsequent possession of the property by Samuel Rooth the younger down to that time. The deed then, without noticing the proceedings for redemption, or stating whether anything was done on the mortgage, or referring in any way to the question whether any equity of redemption was subsisting or not, or stating any circumstances bearing upon that question, beyond the facts above mentioned, proceeded to recite that the parties claiming under Barker's will had contracted and agreed [85] with Samuel Booth the younger for the absolute sale to him " of their, each and every of their estates, right, title, interest, right and equity of redemption, claim and demand of, in and to " the property comprised in the mortgage of 1776, for the price of £264, 5s. Then, in consideration of that sum paid to their trustee by Samuel Rooth the younger, " in full for the absolute purchase of the hereditaments hereinafter mentioned, and intended to be hereby conveyed and released, and of the inheritance and equity of redemption thereof, free from iucumbrances," the parties entitled under Barker's will, " according to their several and respective estates, rights arid interests in the premises," conveyed the property comprised in the mortgage unto and to the use of Samuel Rooth the younger in fee, "freed and absolutely discharged of and from the proviso or condition for redemption of the said hereditaments and premises, or any part thereof, contained in the said in part recited indentures of release or mortgage of the 13tM of April 1776, and all other provisoes or conditions for redemption of the same." Elizabeth Sooth, the testator's widow, died on the 16th of February 1828, and Samuel Rooth the younger died on the 16th of March 1829, intestate, leaving Jeremiah Rooth his heir at law, who was also a devisee in remainder under the will of Samuel Rooth the elder. Jeremiah Rooth entered into possession, and paid the two sums of £250 given by the will to his sisters Mary and Elizabeth, and died without issue on the 24th of April 1845, leaving a will by which he devised the estates to...
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