Roddam v Morley
| Jurisdiction | England & Wales |
| Judgment Date | 20 February 1856 |
| Date | 20 February 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 622
BEFORE THE LORD CHANCELLOR LORD CRANWORTH, ASSISTED BY MR. JUSTICE WILLIAMS AND MR. JUSTICE CROWDER.
S. C. 2 K. & J. 336; 25 L. J. Ch. 329; 2 Jur. (N. S.), 805; 26 L. J. 438; 3 Jur. (N. S.), 449. Distinguished, Coope v. Cresswell, 1866, L. R. 2 Eq. 121; L. R. 2 Ch. 124. Approved, Pears v. Laing, 1871, L. R. 12 Eq. 42. Discussed and Considered, In re Hollingshead, 1888, 37 Ch. D. 651. Referred to, Barclay v. Owen, 1889, 60 L. T. 222.
Reports of CASES HEARD and DETERMINED /*- ' -*' by the LORD CHANCELLOR and the COURT OF APPEAL IN CHANCERY. 1857. By J. P. DE GEX and H. CADMAN JONES, Esqrs., Barristers-at-Law. 1858. Vol. I. f^^V.-t/- // /-,- -'3*-- [1] eoddah v. morley. Before the Lord Chancellor Lord Cranworth, assisted by Mr. Justice Williams arid Mr. Justice Crowder. July 19, Dec. 12, 13, 1856; Feb. 18, April 18, 1857. [S. C. 2 K. & J. 336 ; 25 L. J. Ch. 329; 2 Jur. (N. S.), 805; 26 L. J. 438; 3 Jur. (N. S.), 449. Distinguished, Coopev. Cresswell, 1866,L. E. 2 Eq. 121; L. E. 2 Ch. 124. Approved, Pears v. Laing, 1871, L. E. 12 Eq. 42. Discussed and considered, In re Hallingshead, 1888, 37 Ch. D. 651. Referred to, Barclay v. Owen, 1889, 60 L. T. 222.] Payment by a devisee for life of interest on a specialty of his testator's, in which the heirs were bound, held to be an acknowledgment made " by the party liable by virtue of auch specialty," within the meaning of the 5th section of the Act 3 & 4 Will. 4, c. 42, and as such sufficient to keep the right of action alive in its integrity against all parties interested in remainder. Money due 011 a bond by an ancestor is not a sum of money payable out of land within the meaning of the 40th section of the Act 3 & 4 Will. 4, c. 27. This was an appeal by the Plaintiff from the decree of the Vice-Chancellor Wood, whereby the Plaintiff's bill was dismissed. The short question raised upon the appeal was, whether under the fifth section of the Act 3 & 4 Will. 4, c. 42, payment of interest on a bond within twenty years by the tenant for life of the obligor's real estate did or not keep alive a right of action on the bond against persons entitled to such real estate in remainder. The Vice-Chancellor held that such payment did not keep the right of action alive. The case is reported in the second volume of Messrs. Kay and Johnson's Reports, page 336. [2] The appeal came originally before the Lord Chancellor on the 12th July 1856, but before it was fully opened his Lordship expressed his opinion that it was a case which ought to be heard with the aid of two of the Common Law Judges. The appeal accordingly stood over until Michaelmas term, and Mr. Justice Williams and Mr. Justice Crowder, being invited by the Lord Chancellor, now attended. Dec. 12. Mr. Bagshawe and Mr. Martindale, for the Plaintiff, in support of the appeal. We submit that where several persons are joined in one common obligation, any one of them making part payment of principal or interest will keep the obligation alive as to the others, IVTiitcmnb v. IHiiting (2 Dougl. 652, and 1 Smith's L. Gas. [llth ed.], 579). The reasonable construction of the words "if any acknowledgment shall have been made either by writing by the party liable," &c. " or by part payment," &c., in the 5th section of the Act 3 & 4 Will. 4, c. 42, is that the tenant for life being under an obligation to pay the interest, the debt is by such payment kept alive as against the inheritance. For the purpose of construing that statute it is to be observed, that the heir and devisee are one person and ought, under the Act 3 & 4 W. & M. c. 14, to have been jointly aued at law, falling as they do under the description of "party liable to pay," 1DEQ.&.JS. HODDAM V. MOELEY 623 and the foundation of our equity is, that the tenant for life being liable to pay, his payment must be considered as binding on all. The result of the Vice-Chancellor's construction will be, to hold that the word acknowledgment must be restricted to an acknowledgment in writing; our contention, however, is that an acknowledgment may be by other modes, e.g., by part payment. Another anomalous consequence [3J would follow from the Vice-Chancellor's construction, that though the whole property of the obligor is assets, yet the tenant for life could say, " I admit that they are assets in my hands, yet they are not assets in the hands of the remainder-man." They referred to Earner's Devisees' case (2 De G. Mac. & G. 366), Kinderley v. Jarvis (22 Beav. 1), Chaplin v. Chaplin (3 P. Wms. 365), Francis v. Graver (5 Hare, 39), Ford/tarn v. Wallis (10 Hare, 217); and they commented on the following statutes, viz., 3 & 4 W. & M. c. 14; 9 Geo. 4, c. 14; 1 Will. 4, c. 47; 3 & 4 Will. 4, c. 27, ss. 40, 41, 42 and 46 ; and 3 & 4 Will. 4, c. 40, ss. 3, 4 and 5. Mr. W. M. James, Mr. Cairns and Mr. H. Palmer, for the Respondents, Mrs. Morley the widow of the tenant for life, and for the tenant in tail in remainder. We submit that an acknowledgment by one of several persons primarily liable will not affect those who might be ultimately liable if their liability has been discharged by the Statute of Limitations, Fardham v. Wallis (10 Hare, 217), and there is no substantial distinction between the case of a bond and simple contract creditor in the application of the rule, Putnam v. Bates (3 Kuss. 188), Morley v. Morley (5 De G. Mac. & G. 610). It was argued as if the bond debt amounted to a charge on the land ; but in that lies the fallacy. Equity does not change the right of the creditor, it only gives him a simpler remedy ; but he must, nevertheless, shew that the debt is a subsisting one and not barred by the Statute of Limitations. [4] Mr. Willcock and Mr. Selwyn, for Mrs. Jane Morley the widow of the testator, and for Mr. and Mrs. Allen and their children interested under the testator's will. According to the Appellant's argument the tenant for life must be considered to all intents and purposes as the agent of the remainder-man ; but the debt was no charge on the land, Hunting v. Sheldrake (9 M. & W. 256); and the Act 3 & 4 Will. 4, c. 27, applies only to charges. Even a payment by one executor does not take the case out of the statute as against another executor, Schoky v. Walton (12 M. & W. 510); how then can an admission by a person not primarily liable, and when the debt is not a charge on the land, bind parties who are entitled in remainder to the inheritance1! The Appellant must contend that a payment by anyone without any privity to the remainder-man will bind the remainder-man''and prevent the bar of the statute. They cited Burrell v. The Earl of Egrmnont (7 Beav. 205), Wynne v. Styan (2 Phil. 306), Wilkinson v. Wilkinson (9 Hare, 204). Mr. Bagshawe, in reply. The words " party liable " in the 5th section of the Act 3 & 4- Will. 4, c. 42, do not refer to an individual, but are nomen collectivum, and serve to denote a class. At the conclusion of the argument the learned Judges desired time to consider the question which had been submitted to them, and on the 18th February 1857, Mr. Justice Williams, on behalf of Mr. Justice Crowder and himself, delivered the following joint opinion :- Feb. 18, 1857. my lord chancellor,-The question raised in this case is whether the payment of interest by Francis Morley, the tenant for life [5] of certain land under the will of the obligor Josias R. Morley, prevented the Statute of Limitations from barring the action against his heirs and devisees in remainder after the expiration of twenty years from the time of the bond becoming due. The Vice-Chancellor Wood decided that it did not, and this is an appeal from that decision. The case for the Appellant (the bond creditor) was argued upon the effect of the 40th section of the statute 3 & 4 Will. 4, c. 27, as well as the 5th section of the statute 3 & 4 Will. 4, c. 42, and it was contended on his behalf, that, under the one or the other of these statutes, his remedy still exists against the lands of the testator, the obligor, the period of twenty years not having elapsed since the last payment of interest by the tenant for life. With respect to the statute 3 & 4 Will. 4, c. 27, the opinion which we have formed on this case renders it unnecessary to say whether we concur in the decision of the Vice-Chancellor, that a bond debt is not " charged upon " or " payable out of land " within the meaning of the 40th section, but we cannot refrain from saying that we entirely agree with the view which His Honour has taken of that Act. 24 RODDAM V. MORLEY 1DEO.&J.8. With reapeefc to the statute 3 & 4 Will. 4, c. 42, the question is twofold: first, whether the payment of interest by the tenant for life was an acknowledgment made by " the party liable by virtue of the bond " within the meaning of the 5th section ; secondly, if it was, what are the consequences of such an acknowledgment. By the 3d section, all actions of covenant or debt upon any bond or other specialty shall be brought within twenty years after the cause of such action, but [6] not afterwards. But by the 5th section it is provided " That, if any acknowledgment shall have been made, either by writing signed by the party liable by virtue of such indenture, specialty or recognizance, or his agent, or by part payment or part satisfaction on account of any principal or interest being then due thereon, it shall and may be lawful for the person or persons entitled to such actions, to bring his or their action for the money remaining unpaid, and so acknowledged to be due within twenty years after such acknowledgment by writing or part payment or part satisfaction as aforesaid, or in case the person or persons entitled to such action shall at the time of such acknowledgment be under such disability as aforesaid, or the party making such acknowledgment be at the time of making the same beyond the seas, then within twenty years after such disability shall have ceased as aforesaid, or the party shall...
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