Rooke v Lord Kensington
| Jurisdiction | England & Wales |
| Judgment Date | 24 July 1856 |
| Date | 24 July 1856 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 940
ROLLS COURT
[470] eooke v. lord kensington. March 1, 3, 1856. Two estates, A. and B., were subject to the same mortgage. The owner, on the marriage of his son, settled A. in strict settlement, and the trustees were empowered "from time to time, when and as occasion should require," to sell any part of A., and pay off the mortgage, so as to exonerate B. The owner afterwards mortgaged 2IBEAV.471. ROOKE V. LORD KENSINGTON 941 B. to the Plaintiff, but without any express mention of the exoneration clause. The Plaintiff having filed a bill to enforce the exoneration clause, without making the trustees of the settlement parties, it was dismissed, with costs. Whether the Plaintiff was in a situation to enforce the contract, under the terms of his security, qucere. The time for exercising the trust for sale would seem to be, when the B. estate would be made liable to pay the charge on the A, estate. The late Lord Kensington had mortgaged "the Kensington estates" and "the Llanbister rectory " to Lord Braybrooke and others, to secure 60,000. Afterwards, on the marriage of the present Lord Kensington, by an indenture bearing date the llth of October 1833, the Kensington estates were conveyed, subject to the mortgage, to two trustees, to the use of the late Lord Kensington for life, with remainder to the present lord for life, with remainder to his first and other sons in tail, with an ultimate remainder to the late lord in fee. A power was thereby given to the late lord to charge the estates with 20,000 for his own benefit, and to create a term to secure it. And it was thereby also provided, agreed and declared, between and by the parties thereto, that as between the heirs and assigns of the late Lord Kensington and the parties entitled thereunder, the Kensington estates should be primarily liable, and the Llanbister rectory secondarily liable for paying off the 60,000; and the trustees, Henry Handley and George Warren Edwardes were thereby empowered "from time to time, as and when occasion should arise," to sell all or any part of the Kensington estates, and out of the monies produced by the sale to pay and satisfy the 60,000 [471] interest, and to exonerate and indemnify the late lord, his heirs, executors, administrators and assigns, and the rectory of Llanbister from the payment himself. In 1835 the late Lord Kensington charged the settled estates with 20,000 and created a term to secure it, and this charge, prior to 1842, was assigned to Lord Braybrooke and his co-mortgagees, to secure 14,277. By two deeds, each dated the 27th January 1842, the late lord assigned the 20,000 charge (subject to the principal sum of 14,277, 6s. 2d.), his ultimate remainder in fee in the Kensington estates and the Llanbister rectory, together with the benefit of the provision made by the settlement for charging the whole of the mortgage debt of 60,000 and interest on the Kensington estates, in exoneration of the Llanbister rectory, to the Defendant Edmond Bouverie and others, by way of further security, for the sum of 24,500 lent to him on mortgage of other hereditaments, with interest, and to the Defendants Philip Pleydell Bouverie and Charles Tennant, by way of further security for the sum of 32,500 lent to him on mortgage of other hereditaments, with interest. By a third deed, dated the same 27th of January 1842, the late lord conveyed to the Plaintiff F. W. Rooke his equity or right of redemption in the premises comprised in the other two several securities of the 27th of January 1842 (but not expressly mentioning the benefit of the exoneration clause), after full payment of all the said principal sums of 24,500 and interest, and 32,500 and interest, by way of further security, to the Plaintiff for the sum of 30,000 lent by him to the late lord on other securities. The late Lord Kensington died on the 10th of August 1852, and in the October following the present Lord [472] Kensington filed his bill to redeem the premises comprised in the settlement from the charge of 20,000, and in March 1854 a decree for redemption and an account and inquiries was accordingly made, the mortgagees of the 60,000 not asking to be redeemed. (See 19 Beav. 39.) The accounts and inquiries were still pending, and the 20,000 and interest remained unpaid. The 24,500, 32,500 and 30,000 charges, with an arrear of interest, were also unpaid. The Plaintiff, with a view to prevent the present Lord Kensington from entering into possession and enjoyment of the Kensington estates, after paying off the 20,000 charge, without obtaining an exoneration of the Llanbister rectory from the 60,000, filed his bill against Lord Kensington, his eldest son (an infant), and the Bouveries and Tennant, praying that the Llanbister rectory might be exonerated and discharged from the payment of the 60,000 and interest, and for a sale of the Kensington estate for that purpose, and for an injunction and a receiver. To this bill the mortgagees of 942 ROOKE V. LOBD KENSINGTON 21 BEAV. 473. the 60,000 and the trustees of the settlement were not made parties, but no objection was made by the Defendants in their affidavit on that account. Mr. Lloyd and Mr Shapter, for the Plaintiff, contended that the exoneration clause created a trust of which specific performance could be enforced, and that the Plaintiff was entitled to have the power of sale put in operation, in order to exonerate the Llanbister rectory; Manelaugh v. Hayes (1 Vern. 189). [the master of the rolls. How can you sell the Kensington estates free from the mortgage, unless the mortgagees consent, or how can you proceed without redeeming them"?] The Plaintiff [473] has the same benefit given to him as the Bouveries, except as regards priority, and therefore has the same rights, including a right to have the Kensington estates sold. They cited Nisbet v. Smith (2 Bro. C. C. 582); Beaumont v. The Marqui* of Salisbury (19 Beav. 198); Salmoay v. Strawbridge (1 Kay & J. 371); Dodson v. Powell (18 L. J. (N. S.), Ch. 237); Lord Kenningkm v. Bm.we.rie (16 Beav. 194, and 19 Beav. 39). Mr. C. Boupell, for Messrs. Bouverie and Mr. Tennant. Mr. C. Palmer and Mr. Selwyn, for Lord Kensington. The trustees of the settlement, and Lord Braybrooke and his co-mortgagees, ought to have been made parties, and the suit is defective by reason of that omission. But, even if the exoneration clause could be made available without the consent of Lord Braybrooke and his co-mortgagees, or without redeeming them, the Plaintiff, at least, can derive no benefit from it; for it was not assigned to him by express words, and is not included in his deed of the 27th of January 1842. Besides, the trust for sale is only to be exercised " from time to time, ew occasion may require," to recoup any charge that may be paid oft' out of the Llanbister tithes. How or by whom is the time of the sale to be determined 1 Not by the Plaintiff, and if the Llanbister estate is saved harmless and indemnified, the trust for sale will never arise at all. Mr. Lloyd, in reply. [474] March 3. the master of the rolls [Sir John Romilly]. I am of opinion that this suit fails altogether. The question arising on the construction of this clause in the deed may be one of some nicety, and involve some points of considerable difficulty; but the defect which exists in the case of the Plaintiff is of this nature: a contract having been entered into by the late Lord Kensington on the marriage of his son that, for the purpose of exonerating and indemnifying the late lord and his estate, called "the Llanbister tithes," from any part of the charges which were on the Kensington estates, a trust shall be imposed on the trustees of the settlement, Henry Handley and George Warren Edwardes, that they shall, " from time to time, when and as occasion shall require," sell and dispose of all or any part of the Kensington estates, for the purpose of paying the 60,000 charge in the first instance. That, as has been properly stated, is a trust reposed in these persons; and this is a suit to compel the enforcement and execution of that trust against persons who are cestms qua trust of those trustees in respect of this property, but not in respect of this particular contract. It is, in point of fact, a suit by a person claiming to be the cestui que trust of this particular contract, seeking the benefit of the enforcement of this contract, and seeking the enforcement of it by the trustees in whom the trust is reposed, but yet not calling on those trustees to exercise, or to execute or perform the contract. Now I never saw a case of that sort before. The case cannot be put higher for the Plaintiff than if the late Lord Kensington were now alive, and had come for the execution of the contract. Whom would he call [475] upon to exercise it for his benefit 7 The persons he would call upon would be Henry Handley and George Warren Edwardes, who are the donees of the power, or the persons in whom the trust is reposed. I think that it is quite impossible for this Court to make a declaration and execute the trust imposed in other persons, because, as has been observed, it is a. trust to be executed whenever the occasion requiring its exercise shall arise and not till then. That, I think, sufficiently disposes of this case. Two other questions arise, upon which certainly there ia considerable difficulty. One is, whether the Plaintiff is, under the terms of this contract, such an assignee of the benefit of this contract that he is entitled to enforce the execution of it. Because it is to be observed, if I have correctly collected the statements made to me, that the a BEAV. 478. ROOKE V. LORD KENSINGTON 943 benefit of this contract is not, in express terms, assigned over to the Plaintiff, but it is, in express terms, assigned over to persons who have prior charges on the Llanbister tithes. That involves a very serious question. It has been endeavoured to make...
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