Penny v Avison
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 1861 |
| Date | 19 March 1861 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 855
HIGH COURT OF CHANCERY
S. C. 30 L. J. Ch. 564; 4 L. T. 617; 9 W. R. 550.
Will. Clause of Forfeiture on Assignment. Warrant of Attorney. Set - off. Judgment Act. Charge of Land. Trust Money invested on Mortgage Securities.
[530] avison v. holmes. penny v. avison. March 9, 11, 19, 1861. [S. C. 30 L. J. Ch. 564; 4 L. T. 617 ; 9 W. E. 550.] Will. Clause of Forfeiture on Assignment. Warrant of Attorney. Set-off. Judgment Act. Charge on Land. Trust Money invested on Mortgage Securities. Where property is given, with a clause of forfeiture and gift over in the event of any act of alienation by the donee, the giving of a warrant of attorney, unless done as a contrivance to evade the prohibition against alienation, does not created a forfeiture. A. being indebted to B.'s estate, and B.'s estate being indebted to C.'s estate, and A. being also interested in a legacy under C.'s will : Held, that there was no equity to impound the legacy until A. should have paid his debt, and so enabled B.'s executor to pay the debt due to C.'s estate. Where, under a power to invest on real or Government securities, a trust fund is invested on mortgages, a judgment creditor of one of the cestuis gue trust is entitled to a charge on his interest, to the extent of all moneys which may be payable to him out of the rents and profits of the mortgaged property or otherwise, by virtue of such mortgage. But the share of the judgment debtor in the interest paid to the trustees by the mortgagor, and not taken out of rents and profits, is not subject to a charge under the 13th section of the Judgment Act, the covenant to pay being a security which falls under the 12th section. 856 AVISON V. HOLMES 1J. &H. 531. Ellen Whittaker, by her will, dated the 2d of November 1834, appointed one-third of a sum of 6433, over which she had a testamentary power by the will of her father, to her brothers, Henry, John and James, and another trustee, upon trust, during the life of her brother, Isaac Holmes, to pay and apply the interest and annual produce thereof unto him for his own benefit, if he did not make any assignment or mortgage of or charge upon the same interest and annual produce, or any part thereof, by any mode of anticipation, or agree so to do, or become bankrupt, or take the advantage of any Act or Acts of Parliament for the relief of insolvent debtors, or do any act whereby such interest and annual produce, if made payable to him without any restriction, would become payable to any other person or persons ; but, in case the said Isaac Holmes should, at any time, make an assignment or mortgage of, or charge upon the same interest and annual produce, or any part thereof, by any mode of anticipation, or agree so to do, or become bankrupt, or take the advantage of any Act or Acts of Parliament for the relief of insolvent debtors, or do any act whereby such interest and annual produce, if made payable to him without restriction, would become payable to any other person or persons, then thenceforth, during the life of the said Isaac Holmes, to pay and apply the said interest and annual [531] produce, when and as the same should arise, unto or for the subsistence or otherwise for the benefit of his issue, whether children or grandchildren, all or any of them, and in such manner as the trustees or trustee for the time being should think proper; with limitations in remainder in favour of the children and other issue of Isaac. The testatrix died in November 1847. The suit of Penny v. Avison was instituted for the administration of Mrs. Whittaker's estate. Other bills had also been filed for the administration of the estates of her father and her three brothers, Henry, James and John : of whom Henry died in January 1848; John in October 1853; and James in November 1853. Isaac Holmes had a son Henry, hereinafter called Henry, the son. In the year 1850 Henry, the son, purchased from the Defendant, Pemberton, the advowson of the living of Wandsworth and certain land in Wandsworth, for 13,800. The purchase-money was not paid, and was secured by the following securities :- 1. A mortgage dated the llth of March 1850 of the purchased property. 2. A mortgage, of the same date, by Isaac Holmes, Henry, the son, and two of his brothers, of three-fourths of the residuary real and personal estate of the said Henry Holmes, the brother of Isaac Holmes, and hereinafter called Henry, the brother; which said three-fourths had been devised in trust for Isaac and his children. [532] 3. A warrant of attorney of the same date, given by Isaac and Henry, the son. In April 1851 judgment was entered up under the warrant of attorney and duly registered. In April 1853 Pemberton assigned his mortgages and judgment to John Holmes, in consideration of 6500, and two bonds for 5000 each. The Plaintiff, Avison, was now the legal personal representative of John Holmes. On the 13th of March 1854 an administration decree was made of the estate of John, under which the advowson was sold for 3500. Pemberton proved under this decree for the bonds given to him by John, and was paid. The 6433 appointed by Mrs. Whittaker's will was not got in out of the father's estate for many years; but in 1859 5898 three per cents,, representing part of this sum, stood in the names of Mrs. Whittaker's trustees. On the 5th of March 1859 an order nisi was obtained in the Queen's Bench by the Plaintiff, Avison, as the legal personal representative of John Holmes, charging Isaac's interest in one-third of this sum with the amount which remained due upon the judgment entered up by Pemberton and transferred to John Holmes. By another order nisi, made on the 8th of December 1859, the interest of Isaac in a further sum of stock, in one-third of which he had a life interest under the residuary clause of Mrs. Whittaker's will, was charged in like manner with the judgment debt. These orders nisi had not been made absolute, having [533] stood over to await the issue of a litigation at common law, in which the judgment was impeached. It appeared that there remained due from Isaac to John's estate upon the judgment, if valid, upwards of 10,000. It also appeared that John had been a defaulter as 1J. &H. 531 AVISON V. HOLMES 857 trustee of Mrs. Whittaker's estate, and that his estate was still indebted to Mrs. Whittaker's on this account. A portion of Mrs...
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