Plowden v Hyde
| Jurisdiction | England & Wales |
| Judgment Date | 04 August 1852 |
| Date | 04 August 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 1040
BEFORE THE LORDS JUSTICES.
S. C. 2 Sim. N. S. 171; 21 L. J. Ch. 796; 16 Jur. 512.
[684] plowden v. hyde. Before the Lords Justices. July 28, August 4, 1852. [S. C. 2 Sim. N. S. 171; 21 L. J. Ch. 796; 16 Jur. 512.] The owner of an estate limited to the usual uses to bar dower, mortgaged it in fee, and, by the proviso for redemption, the estate was agreed to be reconveyed to him, his heirs, appointees, or assigns, or to such other persons, to such uses, and in such manner as he or they should direct. After executing this mortgage the testator made his will, devising the estate, and subsequently paid off the mortgage, taking a reconveyance to the same uses, in bar of the dower, as the estate was subject to before the mortgage, the dower trustee being the same person in both deeds. The testator died before the Wills Act came into operation. Held, that the will was not revoked as to the estate in question. This .was an appeal from the decision of Vice-Chancellor Kindersley, reported in 2 Simons, New Series, 171, holding that the will of Henry Chicheley Plowden, bearing date the 15th of May 1811, was revoked as to two parcels of land thereby devised. By virtue of indentures of lease and release, dated the 22d and 23d of April 1811, some messuages and lands situate at Boldre in the county of Southampton stood limited to such uses as Henry Chicheley Plowden should by deed or will appoint, and for default of appointment to the use of him the said H. C. Plowden for life, with remainder to the use of J. Dyneley during the life of and in trust for the said H. C. Plowden, and after the determination of that estate, to the use of the said H. C. Plowden and his heirs. On the 1st of May 1811 Mr, Plowden mortgaged this property to William Newton for 3000. The mortgage was effected by indentures of lease and release, dated the 30th of April and the 1st of May 1811, whereby Plowden appointed and released and Dyneley released the property in question to William Newton and his heirs, subject to a proviso for redemption thus expressed: "Provided always, and it is hereby declared and agreed, that if the said H. C. Plowden, his heirs, appointees, executors, administrators, or assigns shall pay or cause to be paid to the said William Newton, his executors, admin-[685]-istrators, or assigns, the sum of 3000 of, &c., with interest at the rate of 5 per cent, per annum, on the 1st day of November next ensuing, then the said William Newton, his heirs and assigns, and all persons claiming under him or them, shall and will, upon the request and at the costs and charges of the said H. C. Plowden, his heirs, appointees, or assigns, reconvey and reassure the premises unto the said Henry Chicheley Plowden, his heirs, appointees, or assigns, or to such other person or persons, to such uses, and in such manner as he or they shall direct." Besides this property at Boldre, H. C. Plowden was at this time the equitable owner of some land at South Baddesley, called Hornscroft, which he had in 1809 purchased at a sale by auction, but which land had never been conveyed to him. Under these circumstances H. C. Plowden made his will on the 15th of May 1811, bearing date on that day, and he thereby devised all his real estates at Boldre and South Baddesley to the said John Dyneley and his heirs, to the use of his wife during her widowhood, and then upon trust to sell and divide the proceeds of the sale among certain persons named in the will. By indentures of lease and release, dated the 8th and 9th of November 1811, the lands at South Baddesley, contracted to be purchased in 1809, were duly conveyed to 2 DE 0. M. ft 0. 086. PLOWDEN t'. HYDE 1041 H. C. Plowden and his heirs, to the usual uses to bar dower, i.e., to such uses as he should appoint, and in default of appointment, to the use of himself for life, with remainder to the use of John Dyneley, his executors and administrators, during the life of and in trust for the said H. C. Plowden and his assigns, and, after the determination of that estate, to the use of the said H. C. Plowden, his heirs and assigns. [686] In December 1813 H. C. Plowden paid off the mortgage debt due to Newton, and by indentures of lease and release, dated the 6th and 7th of December 1813, the mortgaged lands and hereditaments were reconveyed by Newton to H. C. Plowden and his heirs, to the same uses precisely to which they stood limited previously to the mortgage. Mr. Plowden died in 1821, leaving his widow surviving him ; she died his widow in 1845, and under the trusts of the will the devised property then became saleable. A suit was instituted for the purpose of having the trusts of the will carried into execution, and an order was made directing a sale. One of the purchasers required the concurrence of the heir at law, on the ground that the devise was revoked by the deeds of November 1811 and December 1813, and thereupon a petition was presented by one of the parties interested in the produce of the sale, praying (amongst other things) that it might be declared that the deed of reconveyance of the 7th of December 1813 did not, as to the hereditaments comprised in that deed, operate as a revocation of the will of Henry Chicheley Plowden the testator in the cause, and that the legal estate in the same hereditaments descended upon the death of the testator to his heir at law as a trustee for the devisees under his will of the equity of redemption thereof, and that it might be declared that the hereditaments comprised in the deed of conveyance of the 9th of November 1811, -also stated in the petition, were devised by the will of the testator, he having contracted to purchase the same prior to the date thereof, and that if the Court should be of opinion that the devise of the last-men[687]-tioned hereditaments was revoked by the said conveyance, then that it might be declared that the Defendant James XUhicheley Plowden (who was the son and heir of James Chicheley Plowden, the testator's original heir) was bound to elect between the last-mentioned hereditaments and the monies to which he would become entitled under the same will by virtue of the bequest to his late father, mentioned in the petition, and that if he should elect to confirm the will, then that he might be declared a trustee of the same hereditaments for the devisees under the testator's will. The Vice-Chancellor held that, both as to the lands at Boldre and those called Hornscroft, the will was revoked. From this decision the Petitioners appealed. Mr. Willeock and Mr. Jessell supported the appeal. Mr. Russell and Mr. Lewin, for the heir of the testator's heir at law. Mr. Malins, Mr. Hetherington, Mr. H. Stevens and Mr. Erskine, appeared for other parties. The arguments and authorities relied upon appear sufficiently from the judgments. August 4. the lord justice knight bkuce. The question of revocation or -ademption, the only question argued before us in this case, relates to two distinct portions of the real estates of Mr. Henry Chicheley Plowden, the testator in the ause: one included in a mortgage of the 1st of May 1811, and a conveyence of the 7th of December 1813; the other, included in neither of those instruments, but comprised in a deed of the 9th of November 1811. With regard [688] to the latter portion, I am unable to distinguish this from the case of Eawlins v. Bwgis (2 Ves. & B. 382) which, decided in 1814 by a careful Judge, since followed in more than one instance, and never, so far as I am aware, overruled, I do not think that we ought to refuse to follow now, whether, if the point of revocation or ademption that it determined were new, I should have held an opinion in conformity with that decision or not; as to which it is unnecessary for me to say anything. With respect to the other portion the title stands thus. The hereditaments of which it consists having been acquired by the testator, were by his desire conveyed on the 23d of April 1811 in this manner; to such uses as the testator should by deed or will appoint, and in default of and until appointment, to the use of the testator for his life, with remainder to the use of Mr. Dyneley, his executors, administrators -and assigns, during the testator's life, in trust for the testator, with remainder to the use of the testator, his heirs and assigns for ever. 1042 PLOWDEN V. HYDE 2 DK 0. M. tc 0. 689. Very soon afterwards, namely, on the 1st of May 1811, he mortgaged these hereditaments in fee, Mr. Dyneley, as his trustee, joining in the mortgage. The mortgagee was Mr. Newton, whom in December 1813 the testator paid oft'; whereupon by his direction Mr. Newton, on the 7th of December 1813, conveyed the mortgaged hereditaments to the testator and his heirs, to such uses as the testator should by deed or will appoint; and in default of and until appointment, to the use of the testator for his life, with remainder to the use of Mr. Dyneley, his executors, administrators and assigns, during the testator's life, in trust for the testator; with [689] remainder to the use of the testator, his heirs and assigns for ever. The testator's will devising these hereditaments having been made on the 15th of May 1811, the point has arisen, whether the effect of the conveyance of the 7th of December 1813 was or was not to render the will inoperative as to them; a suggestion which, however startling to commonsense, however foreign to natural equity, is yet rendered plausible, if not sound, by the state of the positive law of England as it stood when the testator died in 1821, a state upon this particular subject which was discreditable to a civilized country. It has since been altered, but not with reference to the property of those who had ceased to live before 1838. Their property is subject to the old law, which, however, was such, upon the present point that no man, I suppose, would be willing, without absolute necessity, to treat a case as falling...
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