Phillips v Phillips
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1861 |
| Date | 10 December 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 1164
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 3 Giff. 200; 31 L. J. Ch. 321; 8 Jur. (N. S.), 145; 5 L. T. 655; 10 W. R. 236. Considered, Cave v. Cave, 1880, 15 Ch. D. 639. See Kettlewell v. Watson, 1882, 21 Ch. D. 711; Manners v. Mew, 1885, 29 Ch. D. 734; Emmerson v. Ind, Coope & Company, 1886-87, 33 Ch. D. 326; 12 App. Cas. 306.
1164 PHILLIPS V. PHILLIPS 4BE 0. F. & J. sot [209] prillijs v. phillips. Before the Lord Chancellor Lord Westbury. : Dec. 9, 10, 1861. [S. C. 3 Giff. 200; 31 L. J. Ch. 321; 8 Jur. (N. S.), 145 5 L. T. 655; 10 W. R. 236. Considered, Gave v. Gave, 1880, 15 Ch. D. 639. See Kettlewell v. Watson, 1882, 21 Cb. D. 711; Manners v. Mew, 1885, 29 Ch. D. 734; Emmerson v. Ind, Ooope & Company, 1886-87, 33 Ch. D. 326 ; 12 App. Cas. 306.] Although a cause is heard on motion for decree the defence of purchase for value-without notice must still be set up by the answer. Where, therefore, the Defendants merely stated by their answer that the Plaintiff was a volunteer whose charge was invalid as against a subsequent purchaser for value': Held, that the Defendants could not in evidence raise the question of absence of notice of the Plaintiff's charge. There is no such general rule as that a Court of Equity will never assist a Plaintiff against a Defendant who is a purchaser without notice ; and an incumbrancer for value of an equitable interest may successfully file a bill against a subsequent incumbrancer for value to have the priority declared and enforced. This was an appeal from the decision of Vice-Chancellor Stuart, declaring the Plaintiff entitled to a charge upon lands as an annuitant, and as against the Defendants, who claimed under a marriage settlement subsequent to the Plaintiff's incumbrarice, which the Defendants alleged was voluntary and void as against them. The deed under which the Plaintiff claimed was an indenture dated the 4th February 1820, made between Rebecca Phillips, widow, of the'first part, John Phillips, her elder son, of the second part, and the Plaintiff' William Phillips, her younger son, of the third part. It recited the death of William Phillips, the husband of Rebecca Phillips, intestate, leaving John Phillips, his eldest son and heir at law, and Anne Butcher, Rebecca Jones and the Plaintiff, his younger children. It also recited that,, subjeet to a life interest therein of his widow, the intestate, William Phillips, was, at [209] the time of his decease, entitled to the reversion in fee of an estate called "Grosmont Wood," subject to a mortgage for 800, and that the intestate was, at his decease, absolutely entitled in possession, for an estate of inheritance in fee, to an estate called " Blanaway," subject to a mortgage for =1200. It recited further that the personal estate of the intestate did not amount to 500, and that John Phillips, the heir, was satisfied that the mode in which the property would devolve in consequence of his father's intestacy would be contrary to his father's wishes, and that he had, in consequence, voluntarily agreed to make a better provision for his sisters and younger brother, by paying to each of his sisters 150, and securing to the Plaintiff an annuity of 20 per annum from the decease of his mother Rebecca Phillips, she having consented to support the Plaintiff in the meantime, and being empowered by the said John Phillips to receive her share of the personalty, after payment of debts, except those due on mortgage, in consideration whereof it had been agreed that the shares of the younger children in their father's personal estate should be assigned to John Phillips. It further recited, that in part performance of such agreement, John Phillips had given his note of hand to each of the husbands of his two sisters for 150, and that by an indenture of even date, in consideration of the notes of hand, and of the annuity, the two husbands and the Plaintiff had assigned to John Phillips their shares in the residuary personal estate of the intestate. By the witnessing part, John Phillips, in consideration of the last-mentioned assignment, and of natural love and affection, granted to the Plaintiff an annuity of 20, charged upon and issuing out of the Blanaway estate, to hold the same immediately after the death of Rebecca Phillips, to the Plaintiff and his assigns for life. And Rebecca Phillips thereby covenanted that she would, during her life, at her own costs [210] and charges, maintain and support the Plaintiff, if he should continue to live with her and assist her as usual in the management of her business. The Defendants' title arose under indentures of lease and release, dated the 4th and 5th May 1821, executed in consideration of a marriage then contemplated, and shortly afterwards solemnized, between John Phillips and Mary Roberts, whereby John Phillips conveyed the hereditaments called "Blanaway," subject to a mortgage DB&P.aj.ttl. PHILLIPS V. PHILLIPS 1165 for 800, together with other hereditaments, to the use of himself for ninety-nine years, if he should so long live, with remainder to the use of his intended wife daring widowhood, with remainder to the use of the children of the marriage in fee. And John Phillips thereby covenanted that the settled hereditaments were not charged, or iticumbered in title, estate or otherwise howsoever, except as regarded the above-mentioned mortgage for 800 on the Blanaway property, and that the reversion and inheritance of that property, subject to the said mortgage only, was then vested in John Phillips in fee-simple. In 1825 John Phillips died intestate, leaving two sons, the Defendants John Phillips and George Phillips. Rebecca Phillips died on the 8th December 1839. The bill, after stating to the above effect, stated that the first quarterly payment of the annuity fell due on the 8th March 1840, but that no payment had been made in respect thereof, notwithstanding frequent applications. The prayer was for an account and payment of what was due in respect of the annuity, and that the amount might be raised out of the estate and for a receiver. [211] The Defendant John Phillips, by his answer, stated, that if there was any such deed as that alleged by the bill to bear date February 4th, 1820, it was executed without consideration, and was void against the settlement of the 4th and 5th May 1821. He further stated, that upon the death of John Phillips the father the hereditaments called Blanaway had devolved on the Defendants John Phillips and George Phillips as tenants in common, subject to the mortgage. The answer further stated, that about two years previously a brother-iri-law of the Plaintiff had met the Defendant John Phillips casually, and told him there was an annuity of 20 charged on the estate to which the Plaintiff was entitled, and that the Defendant replied that he knew nothing about it. The answer submitted that, if the Plaintiff had any claim at all, it was one which could and ought to be enforced at law, and that the suit was improper and unnecessary. The answer also set up the Statute of Limitations. George Phillips, who was made a party by amendment, by his answer submitted that it appeared by the recitals in the'cleed of the 4th February 1820, and was the fact, that that deed was voluntary and made without any consideration, and that it was void against the settlement of the 4th and 5th May 1JS21 ; and the answer claimed the benefit of the statute 27 Eliz. c. 4, and of the Statute of Limitations. The cause was heard by the Vice-Chancellor upon motion for decree. On behalf of the Defendants, the widow of John Phillips the father deposed that neither previously to nor at the date of the settlement of May 1821 had she [212] any knowledge or notice whatever of the deed of the 4th February 1820. The Vice-Chancellor held the Plaintiff had made out his title as an incumbrancer for good consideration, and that the defence of purchase for value without notice not having been raised by the answer...
To continue reading
Request your trial
-
Cleary v Fitzgerald
...Estate I. R. 10 Eq. 282. O'Connor v. StephensUNK 13 Ir. C. L. R. 63. In re Olden 9 Ir. Jur. (N. S.) 297. Phillips v. PhillipsUNK 4 D. F. & J. 208. Newton v. NewtonELR L. R. 4 Ch. App. 143. Penny v. WattsENR 2 De G. & Sm. 501, 521. Colyer v. FinchENR 5 H. L. C. 905. The Agra Bank v. BarryELR......
- Latec Investments Ltd v Hotel Terrigal Pty Ltd ((in Liquidation))
- Abigall v Lapin
- Iac (Finance) Pty Ltd v Courtenay
-
'The receipt of what?': Questions concerning third party recipient liability in equity and unjust enrichment.
...of an equitable interest, but only where the prior interest is a 'mere equity': Phillips v Phillips (1862) 4 De G F & J 208, 218; 45 ER 1164, 1167 (Lord Westbury); Latec Investments Ltd v Hotel Terrigal Pry Ltd(in liq) (1965) 113 CLR 265, 277-9 (Kitto J). (36) Macmillan Inc v Bishopsgat......
-
Table of Cases
...Phillips v Halliday, [1891] AC 228 ..................................................................... 142 Phillips v Phillips (1862), 4 De GF & J 208, 45 ER 1164 ................................... 256 Phipps v Pears, [1964] EWCA Civ 3, [1965] 1 QB 76 .................................. 1......
-
Competing Rights
...when the transfer was registered. 68 National Provincial Bank Ltd v Ainsworth , [1965] AC 1175 (HL). 69 Phillips v Phillips (1862), 4 De GF & J 208, 45 ER 1164. 70 [1975] 2 SCR 715, 50 DLR (3d) 265 at 277. 71 PJ Millett, “Restitution and Constructive Trusts” (1998) 114 Law Q Rev 399 at 416.......