Perry Herrick v Attwood
| Jurisdiction | England & Wales |
| Judgment Date | 23 December 1857 |
| Date | 23 December 1857 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 895
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 25 Beav. 205; 27 L. J. Ch. 121; 4 Jur. (N. S.), 101; 6 W. R. 204. Followed, Jones v. Rhind, 1869, 17 W. R. 1091; Briggs v. Jones, 1870, L. R. 10 Eq. 98. See Hunter v. Walters, 1870, L. R. 11 Eq. 316; L. R. 7 Ch. 25. Distinguished, Fox v. Hawks, 1879, 13 Ch. D. 834. Explained and followed, Clarke v. Palmer, 1882, 21 Ch. D. 124. See Northern Counties, &c., Insurance Corporation v. Whipp, 1884, 26 Ch. D. 492; Manners v. Mew, 1885, 29 Ch. D. 732; National Provincial Bank of England v. Jackson, 1886, 33 Ch. D. 11. Followed, Brocklesby v. Temperance, &c., Building Society [1895], A. C. 173. Applied, Lloyd's Bank, Ltd. v. Bullock [1896], 2 Ch. 193. Explained and followed, Rimmer v. Webster [1902], 2 Ch. 163.
[21] perry herrick v. attwood. Before the Lord Chancellor Lord Cranworth. Dec. 17, 18, 21, 22, 23, 1857. ' ),*: ;; ' [S. C. 25 Beav. 205 ; 27 L. J. Ch. 121 ; 4 Jur. (N. S.), 101 ; 6 W. R. 204. Followed'*^'* Jones v. Rhind, 1869, 17 W. R. 1091 ; Briggs v. Jones, 1870, L. R. 10 Eq. 98. See Hunter v. Walters, 1870, L. R. 11 Eq. 316 ; L. R. 7 Ch. 25. Distinguished, Fox v. Hawks, 1879, 13 Ch. D. 834. Explained and followed, Clarke v. Palmer, 1882, 21 Ch. D. 124. See Northern Counties, &c., Insurance Corporation v. Whipp, 1884, 26 Ch. D. 492 ; Manners v. Mew, 1885, 29 Ch. D. 732 ; National Provincial Bank of England v. Jackson, 1886, 33 Ch. D. 11. Followed, Brocklesby v. Temperance, &c., Building Society [1895], A. C. 173. Applied, Lloyd's Bank, Ltd. v. Bullock [1896], 2 Ch. 193. Explained and followed, Bimmer v. Webster [1902], 2 Ch. 163.] A. voluntarily gave to his sisters a mortgage to secure an antecedent debt. The sisters allowed him to retain the title-deeds, that he might be enabled to give a first mortgage to secure another debt, for which he was being sued by B. A. deposited the deeds with B. to secure that debt and afterwards, without B.'s concurrence, got possession of them and mortgaged the estate to the Plaintiffs for a considerably larger sum, and delivered the title-deeds to them, they having no notice of the mortgage to the sisters. Held, that the mortgage to the sisters must be postponed to that of the Plaintiffs, for that the sisters, having, with a view to A.'s raising a certain sum in priority to their mortgage, put it into his power to represent himself as unincumbered owner, could not, as against the Plaintiffs, who advanced money on the faith of A.'s possession of the deeds, complain that A. had raised more than was agreed upon. Semble, that the mortgage to the sisters was void as against the Plaintiffs under stat. 27 Eliz. c. 4. This waa an appeal by Frances Attwood and Maria Attwood, two of the Defendants, from a decree of the Master of the Rolls, postponing a mortgage held by them, and dated the 30th of January 1848, but, as it appeared, executed in fact about the 4th of February 1848, to certain mortgages of later date held by the Plaintiffs. The circumstances under which this mortgage was given were as follows : - John Attwood, the mortgagor, was for some years previous to 1848 indebted to the trustees of the will of John Hawkins in the sum of 5000, and to the trustees of the marriage settlement of James Alexander Attwood in sums amounting to 10,600. The trusts of the will and settlement were very similar, and in the events which had happened were for the three children of James Alexander Attwood deceased, viz., James Harrington Attwood, Maria Louisa Attwood and Mary Attwood, in equal shares. These children in [22] 1848 were minors. John Attwood had executed several deeds for securing the repayment of these sums, by which he covenanted to repay them at certain times ; and upon default in payment, to give a mortgage security for them upon a competent part of his estate. In the latter part of 1848 application was made to John Attwood for payment. 896 PERRY HERRICK V. ATTWOOD SDEO.ftJ.2S. He agreed to make the payment, and releases were prepared in anticipation of his doing so. He failed to fulfil his agreement, and on the 1st of January 1848 the solicitors of the two sets of trustees wrote to require immediate payment, threatening proceedings at law. After some further correspondence, John Attwood on the 10th of January, proposed to give a mortgage, which the trustees refused, and on the llth of January they commenced actions against him for the recovery of the money. The writs were served on the llth of January, and declarations delivered on the 22d. On the 26th the Defendant served in each action a summons for time to plead in abatement, but these summonses were abandoned on the 27th, and on the 1st of February pleaa were delivered. On the 14th of February issue was joined, and notice of trial given in both actions. At and for some years before the time of these transactions John Attwood was indebted to each of his three sisters, Frances Attwood, Maria Attwood and Mrs. Troward, in the sum of 10,000. How he became so it is not material to state. Mrs. Troward's 10,000 was comprised in her marriage settlement, of which John Attwood was one of the trustees. Attwood paid her interest on this sum, but his other two sisters lived with and were handsomely maintained by him, which was taken as in satisfaction of the interest due to them. The mortgage in question was given for securing these three sums of 10,000 each, and was prepared by Mr. Roger [23J "Williama Gem, the family solicitor, he, the Misses Attwood, Mrs. Troward and the mortgagor himself being the only persons acquainted with the transaction. What passed between the parties as to this security may be best seen from the following account given by Maria Attwood herself in her affidavit filed in the cause :- "The circumstances which led to the proposal for and preparation of the said indenture of mortgage were, as I have heard from my brother the said Defendant John Attwood, and from such information believe, that he was desirous of making his will and arranging his affairs, and had consulted the said Eoger Williams Gem thereon, and that the said Roger Williams Gem, knowing that the said John Attwood had engaged to give a security on his landed property, the bulk of which then consisted of the Hylanda estate, for monies which were due from him to the trustees of Mr. Hawkins's will and of his late brother's marriage settlement, suggested that the said John Attwood should give a security to me and my said sister, the Defendant Frances Attwood, for the monies due to me and my said sister, and also for the money forming the subject of the marriage settlement of my sister, the above-named Defendant Catherine Troward, and that he the said John Attwood, having acquiesced therein, directed the said Roger Williams Gem to do what was necessary for that purpose. "The said Roger Williams Gem spoke to me and my said sister, the Defendant Frances Attwood, on the subject, and we expressed ourselves obliged to him for his attention to our interests, and stated, that we should leave it to him to do what was necessary to make us secure. " The said Roger Williams Gem had our confidence [24] in the preparation of the said mortgage security, and he was left entirely to his own discretion both by myself and my said sister Frances Attwood, and also by my brother, the said Defendant John Attwood, as I believe from his having told me so, and no other solicitor was employed by me or by my said sister in reference to the said indenture of mortgage. "After the said deed of the 30th day of January 1848 had been executed as before mentioned, the said Mr. Gem gave the same to me, saying, ' Here, Miss Attwood, is the security for you and your sister's money ;' the said deed was then enclosed in the paper cover produced, and shewn to me at the time of swearing this affidavit, marked with the letter C. The words and figures ' 1848, Miss Attwood's security from her brother,' now appearing on the said paper cover, are in the handwriting of the said Roger Williams Gem, and were on the said paper cover at the time the same was given to me by the said Mr. Gem. The said Mr. Gem, at the time of handing me the said deed, made some further observation, to the effect, that the fortune of myself and sisters was made secure by the said deed, and advised me to take care thereof. From what the said Mr. Gem said to me, and also from the indorsement in the handwriting of the said Mr. Gem on the said paper cover, I believed that the said deed 2BEG. tcJ. 35. PERRY HERRICK V. ATTWOOD 897 so given to me by the said Mr. Gem did constitute a valid, sufficient and complete security for the sums of money therein mentioned, and that the said deed was the only document which it was necessary for me to have for the purpose of such security." The mortgage thus executed was made between John Attwood of the first part, Frances Attwood and Maria [25] Attwood of the second part, and Mrs. Troward of the third part. By thia deed, after reciting to the effect that Attwood was indebted to Frances Attwaod and Maria Attwood in the sum of 10,000 each, and owed the like sum to the trust estate and settlement monies of Mrs. Troward, in which she was interested far her sole and separate use, and that they had requested him to secure the payment of those sums by such mortgage as thereinafter contained, and that it had been agreed that for the purposes of that security, so far as concerned Mrs. Troward, the Misses Attwood should stand interested in her behalf, as fully and effectually aa shej acting in her sole and separate right, could direct and authorize the same, and should receive and give discharges for all monies payable to her in her own separate rightj Attwood demised the Hylands estate to the two Misses Attwood for a term of 200 years, by way of mortgage, for securing to them the payment of 30,000, with interest at 4 per cent. The operative parts of the instrument were in the common form of...
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