Robinson v Gee
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1749 |
| Date | 10 June 1749 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 1013
HIGH COURT OF CHANCERY
See Hudson v. Carmichael, 1854, Kay, 623.
[251] robinson v. gee, June 10,1749. [See Hudson v. Carmichael, 1854, Kay, 623.] Second tenant in tail joins in a mortgage and bond with the first, who receives the money lent. Held to be only a surety, and the real estate not liable in aid of the personal estate of the first, although he had joined in hopes to prevent a recovery. (Vide Supplement, p. 131.) Parol evidence of an agreement between the parties deemed inadmissible. Bond ex turpi causa delivered up. (See Priest v. Parrot, 2 Ves. sen. 160.) Samuel Gee, tenant in tail, remainder over to his brother Osgood Gee in tail (vide 1 Wins. 291 ; 2 Salk. 449 ; 1 Vern. 36; 3 Wms. 359 ; 2 Atk. 436; 1 Ves. sen. 52 ; 1 Ves. sen. 312), with other remainders, wanting to raise money for the payment of debts on his estate, proposed to Osgood to join in a mortgage for 1000, which was done ; and both joined in a bond : but Samuel being first named he received the money. 1014 ROBINSON V. GEE 1 VES. SEN. 252. The remainder being vested and attached in possession in Osgood upon the death of Samuel, the creditors of Samuel brought this bill to turn the mortgage debt and interest on the real estate of Osgood, and to exonerate the personal estate of Samuel; which it was argued for the plaintiffs was the true intent and result of the transaction between Samuel and his brother in all events : and that Osgood joined in this manner to preserve his remainder in tail, which Samuel would otherwise have destroyed by recovery ; comparing it to the case of an elder son preventing his father from suffering a recovery by promising to make good the provisions, he thereby intended for younger children. But farther, that there was evidence of a particular agreement for this purpose between the brothers, that this debt should be entirely on the estate of Osgood. 4 This was objected to, as not being proper evidence within the statute of frauds, because only Parol: whereas this being a real right annexed to a real estate, such an agreement could not be proved without writing. Against this was cited for plaintiffs Walker v. Walker (2 Atk. 98, 100), December 1740, where John Walker having two brothers, surrendered a copyhold estate to one, charged with an annuity to the other. A question arising concerning the right of the parties upon the refusal of payment of the annuity, by the surrenderee : it was contended, that notwithstanding the surrender imported on the face of it to be a surrender of the legal estate subject to the payment of the annuity, yet was it in the view of the parties that the annuitant should surrender a copyhold estate, which he was possessed of, for the former surrenderee's son; the only evidence of which was by parol: and that his Lordship held it proper. [252] Lord Chancellor. The question depends on two considerations; first, on the nature...
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