Ridgway v Newstead
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1861 |
| Date | 25 May 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 6
BEFORE THE LORDS JUSTICES.
[15] ridgway v. newhteau. Before the Lords Justices. March 9, 1859. An appeal directly from Chambers heard where the Judge had made the order iir person, and declined to adjourn the matter into Court to be argued by counsel. This was an appeal directly from a decision of Vice-Chancellor Stuart made in Chambers. Mr. Schomberg appeared in support of the appeal. Mr. Bacon, for the Respondents, took a preliminary objection that the case had not been argued by counsel before the Vice-Chancellor; Rtroitghill v. Gulliver (1 De G-. & J. 113). The solicitor for the Appellant stated to their Lordships that he had been present when the Vice-Chancellor made the order, which was made by him in person, and not by the chief clerk; that he (the solicitor) had requested His Honour to adjourn the matter to be argued by counsel, but that the Vice-Chancellor had declined to do so, stating his opinion to be that it was a case in which the assistance of counsel was not requisite. their lordships upon hearing this statement overruled the objection.
English Reports Citation: 45 E.R. 962
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 2 Giff. 492; 30 L. J. Ch. 889; 4 L. T. 6, 492; 9 W. R. 401. See Blake v. Gale, 1886, 32 Ch. D. 578; Harrison v. Kirk [1904], A. C. 7.
[474] ridgway v. newstead. Before the Lord Chancellor Lord Campbell. Feb. 20, 23, 27, May 1, 4, 25, 1861. [S. C. 2 Giff. 492 ; 30 L. J. Ch. 889 ; 4 L. T. 6, 492 ; 9 W. R. 401. See Blah'. t. Gale, 1886, 32 Ch. D. 578; Harrison v. Kirk [1904], A. C. 7.] A testator had mortgaged a leasehold brewery, and covenanted to pay the mortgage debt. By his will he bequeathed legacies and an annuity, and made a residuary devise and bequest. His son, to whom he bequeathed the equity of redemption in the brewery, carried on the business, and kept down the interest on the mortgage for thirteen years, and then (in 1856) became bankrupt. In the meantime the estate of the mortgagor had been administered by the executors, and the legacies paid and annuity kept down. In 1857 the mortgagee's representatives instituted a suit for the administration of the testator's estate, and payment of the balance of the mortgage debt (if any) which the proceeds of the mortgaged premises might be insufficient to satisfy. The mortgaged premises, having become depreciated, were sold for less than the debt, and the balance was certified to be due from the executors, and was ordered to be paid by them, but they were unable to pay it, whereupon, in 1860, the mortgagee's representatives filed a bill to have the mortgagor's residuary real estate applied in payment of his debts, so far as it would extend, and to compel the legatees and annuitant to refund. The residuary devisees had mortgaged their " portions, shares and interest as residuary legatees and executors of and in the monies to arise from the sale of " the testator's residuary real and personal estates. Held,- 1. That the lapse of time and intervening circumstances were a sufficient answer to the suit, so far as it sought to call on the legatees and mortgagees to refund. 2. That the mortgage made by the residuary devisees was subject to the payment of the testator's debts. These were two appeals from a decision of Vice-Chancellor Stuart, reported in the 2d Volume of Mr. Giffard's Reports (page 492). The bill was filed by the representatives of a specialty creditor under a covenant contained in a mortgage, and prayed 3DEO. F.&J. 47S. RIDGWAY V. NEWSTEAD 963 for payment of the specialty debt out of the mortgagor's devised estates, [475] and that legatees and an annuitant under his will might be ordered to refund. By the mortgage, which was dated the 8th December 1838, leasehold lands, with the brewery, buildings and machinery thereon, were assigned by Thomas Newstead {the testator) to Thomas Ridgway for the residue of the term then subsisting therein, subject to redemption on repayment of 3000 with interest at 5 per cent., and the mortgage contained a covenant on the part of the testator, for himself, his heirs, executors and administrators, with Thomas Ridgway, his executors, administrators and assigns, in the usual form for the repayment of the 3000 and interest. The testator died in March 1843, having by his will, dated the 16th November 1842, given all the residue of his real and personal estate to his son the Defendant William Meekley Newstead and his daughter Lydia the wife of the Defendant Thomas Cheadle (then Lydia Newstead), their heirs, executors, administrators and assigns, upon the trusts therein expressed, being trusts for sale, with a declaration that the proceeds were to be applied, after payment of debts and funeral and testamentary expenses, in raising a sufficient capital sum to produce =350 per annum, and invest the capital sum as therein mentioned, and pay out of the income (among other things) an annuity of 150 to the testator's son, the Defendant John Tenney Newstead, for his life, with a recommendation to the trustees, who were residuary legatees, to increase the annuity if the annuitant conducted himself to their satisfaction, and upon trust to lay out and invest the sum of 2000 upon Government or real securities, and to pay the income to the testator's daughter Mary Ann Boord (since deceased) and her assigns for her separate use for her life, [476] and after her decease, to pay and transfer the capital to her children ; and the testator gave the residue of all the said monies unto and equally between William Meekley Newstead and Lydia Cheadle ; and the testator constituted them his residuary devisees arid legatees and joint executors of his will. The testator died in November 1842. By an indenture dated February oth, 1848, and made between William Meekley Newstead and Lydia Cheadle of the one part, and Joseph Fox of the other part, after reciting the will and the testator's death, and reciting that William Meekley Newstead and Lydia Cheadle had not yet been able to effect a sale of the testator's estates directed to be sold by the will, and reciting that the said William Meekley Newstead and Lydia Cheadle, having occasion for the sum of 1000, had requested Fox to lend them the same, which he had agreed to do on the security of a bond of even date, in which Thomas William Newstead joined as surety, and on the additional security of the assignment contained in the indenture now in statement: it was witnessed, that, in consideration of 1000 paid to them by Fox, William Meekley Newstead and Lydia Cheadle thereby bargained, sold, assigned, transferred and set over to Fox, his executors, administrators and assigns "all those the said portions, shares and interests of them the said William Meekley Newstead and Lydia Cheadle and each of them as residuary legatees and executors under the said recited will of the said Thomas Newstead deceased as aforesaid of and in the monies in the said will directed to be made of the testator's residuary real and personal estates, subject to the several annuities in the said will mentioned, and every part and parcel thereof," to hold to Fox, his executors, administrators [477] and assigns absolutely, but subject to a proviso for reassignment on repayment to Fox the sum of 1000 with interest at 5 per centum on the 5th day of August then next. In 1856 Fox instituted a suit against William Meekley Newstead, Lydia Cheadle and her husband, and other Defendants, to enforce payment of the amount secured by the last-mentioned deed, and by a decree made in that cause, dated the 5th December 1857, it was ordered, that John Tenney Newstead, as heir at law of the above-mentioned Thomas William Newstead, who had made himself liable as a surety for the debt due to Fox, should on paying the balance stand in the place of Fox. Accordingly, John Tenney Newstead paid off Fox's claim, and afterwards prosecuted the suit of Fox v. NeMsteod. Under the decree in Fox. v. Neivsteod, the real estate of the testator not specifically devised and not previously sold was sold, and the purchase-money was paid into Court to the credit of Fox v. Newstead. In 1857 the representatives of Thomas Ridgway filed a bill against the executors 964 BIDQWAY -V. NEWSTEAD 3DEG. F. & J. &. and trustees of the will of Thomas Newstead seeking an account of what waa clue on the mortgage of December 1838, and that in default of payment the mortgaged premises might be sold and the moneys to arise from such sale be applied in satisfaction of what should be found due, and that in case of deficiency the same might be made good out of the estate of the mortgagor, and that his executors might admit assets, or that the usual [478] accounts might be taken and the estate administered, and that the suit might be taken as being on behalf of the Plaintiffs and all other unsatisfied creditors of the mortgagor. By the decree made on the hearing of that suit on the 21st January 1858 the usual accounts were directed of the amount clue on the mortgage of 1838, and in default of payment the mortgaged premises wore ordered to be sold and the proceeds to be applied in payment of the amount found due, with the usual directions of an administration decree in the event of a deficiency. By a certificate made in that suit, dated the 23d April 1X59, it was certified that the Defendants had made default in payment to the Plaintiffs of the sum of 3285, 16s. Id., which had been found due on the mortgage, and that the mortgage premises had been aold for 850, and that there remained due to the Plaintiffs upon their security 2553, 3s. 8d. Upon the administration accounts a balance of 18,662, 3s. Id. was certified to be clue from the Defendant William Meekley Newstead on account of the personal estate of the mortgagor, the chief clerk having among other things disallowed sums amounting in the whole to 2012, 2s. (Id. which were claimed as having been paid to John Tenney...
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