Rooper v Harrison
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1855 |
| Date | 01 January 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 704
HIGH COURT OF CHANCERY
See Thorpe v. Holdsworth, 1868, L. R. 7 Eq. 146; Ward v. Duncombe [1893], A. C. 390; Taylor v. London and County Banking Company [1901], 2 Ch. 263.
Mortgage. Priority. Notice. Conversion. Legal Estate. Tabula in naufragio. Attendant Terms. "All the Estate, &c." Merger. Advowson Appendant. General Words.
[86] eooper v. harrison. May 28, 29, 30, June 21, 1855.(1) [See Thorpe v. Holdsworih, 1868, L. E. 7 Eq. 146; Ward v. Duncombe [1893], A. C. 390; Taylor v. London and County Banking Company [1901], 2 Ch. 263.] Mortgage. Priority. Notice. Conversion: Legal Estate. Tabula in naufragio. Attendant Terms. " All the Estate, &c." Merger. Advowson Appendant. General Words. First mortgage to W., with power of sale, and declaration of trust of residue of moneys arising from the sale, for the persons entitled to the equity of redemption. Second mortgage to E. Third mortgage, without notice of the second, to H., who was W.'s solicitor, and as such had possession of the deeds. Afterwards, other incumbrances. Then W. died, having devised mortgage and trust estates to H., and appointed him and another executors. H. sold under the power, and conveyed the mortgaged estate, paid off W.'s mortgage out of the purchase-money, and retained the balance. Subsequently H., for the first time, had notice of E.'s mortgage. Held, First, that E.'s omission to give notice did not give priority either to H. or to a subsequent incumbrancer, who gave notice before E.; the estate, though subsequently converted, being real estate when the securities were executed; and to real estate the rule, as to notice giving priority, does not apply. (1) The report of this case has been delayed, in consequence of the editor's being unable to procure the requisite papers at an earlier period. 2K.&J.87. ROOFER V. HARRISON 705 Secondly, that, since K. was not bound to give notice, his motives for abstaining from giving notice were, in the absence of fraud, immaterial; the rule being that an equitable incumbrancer on real estate is not postponed by any absence of activity in asserting his rights, except such as amounts to participating in fraud, or to constructive fraud. Thirdly, that if before the sale H. had the legal estate in the premises (and, as to part, wimble, that he had), still, having since parted with it, his opportunity of using it as a tabula in naufragio, to protect his own charge, was gone; and that H., having, as devisee of W., paid off W.'s mortgage, held the surplus upon trust for the persons entitled to the equfty of redemption; and though he might, before notice of R.'s mortgage, have paid the surplus to other subsequent incumbrancers, he could not be heard to say he had appropriated it to himself. And the incumbrances were declared to have priority according to the dates of the instruments. Investigation of the doctrine as to the protection afforded to an incumbrancer by means of the legal estate. Two terms were created in the same manor, one of 500 years, in 1712, the other of 600 years, in 1768. In 1791 the latter was assigned to A., to secure a mortgage debt; and by a deed of even date the former was assigned to B., as a trustee for A. A died, having appointed B., C. and D. his executors. In 1801, by a deed indorsed on the first assignment of 1791, and "made between B., C. and D., executors of A.., of the one part, and E. of the other part," B., C. and D. assigned the premises, "and all the estate," &c., to E., for the residue of the term of 600 years, subject to the equity of redemption. Held, that the term of 1712, being held by B. in what must be deemed his own right, did not pass by force of the words "and all the estate," &c., and was not merged. In 1790 an advowson appendant to a manor was sold and assigned for the residue of a term of 500 years, created in the manor and advowson in 1745, and which, except as to the advowson, ceased. Held, that this did not sever the appendancy, and that the advowson passed by a subsequent release of the manor with general words. By indentures, dated 1712, a term of 500 years in the manor of Stoke D'Abernon, to which the advowson of the parish church of Stoke D'Abernon was appendant, was created, and vested in Cranmer and Gaville. [87] In 1741 a term of 500 years in the same manor and advowson was created and vested in Willis and Bowling, for securing a jointure rent-charge for Elizabeth, the first wife of Francis Vincent, and portions for their younger children. Elizabeth Vincent died without issue in 1743; and in 1745 a term of 500 years in the manor and advowson was created and vested in the Earl of Effingham and Willis, upon trust for raising ,6000 portions for daughters and younger sons of the marriage then intended between Francis Vincent and Mary Howard, spinster, with a proviso for cesser of the term on performance of the trusts. In 1768 a term of 600 years was created in the manor and advowson, and vested in Sir Thomas Champneys and Willis, upon trust to raise a sum not exceeding 12,000. In 1769 the manor and advowson were assigned by way of mortgage to Neate for the residue of the term of 600 years, subject to the term of 500 years created in 1745, with a proviso for redemption on payment of 10,000 and interest. [88] In 1790 Vaillant became the purchaser, and took an assignment of the advowson for the residue of the term of 500 years created in 1745. And, by a deed of even date, the residues of the two terms of 500 years, created in 1712 and 1741, in the advowson were assigned to Norris in trust for Vaillant. In 1791 the manor, and such other of the premises comprised in the term of 600 years as then remained unsold, were assigned by Neate to Eamsay for the residue of that term, subject to redemption on payment of 10,000 and interest. And, by a deed of even date, the hereditaments and premises comprised in the last-mentioned assignment were assigned to Seton for the residue of the term of 500 years created in 1712, in trust for Eamsay, his executors, administrators and assigns, subject to V.-C. xiv.-23 706 ROOFER V. HARRISON 2K.&J.89. redemption on payment of the 10,000 and interest; and, in the meantime, in trust to permit the same term of 500 years to wait upon aod attend the term of 600 years, and to protect the premises from intervening incumbrances. The same deed purported to contain an assignment by Sir F. Vincent of the term of 500 years created in 1745, but the deed was not executed by him. By an indenture dated January 1801, indorsed on the first-mentioned indenture of 1791, and made between Coutts, Watherstone and Seton, therein described as executors of the will of Eamsay of the one part, and William Eowe of the other part; reciting the death of Eamsay, having first made his will and appointed Coutts, Watherstone and Seton executors, and that they had all proved the will; Coutts, Watherstone and Seton, in consideration of 10,000 to them paid by William Eowe, .assigned to William Eowe all the premises which, by the therein within-written indenture, were assigned to Eamsay, with [89] the appurtenances, "and all the estate, , &c.:"(!) Habendum to William Eowe, his executors, &c., for the residue of the term of 600 years, subject to the then existing equity of redemption. In August 1801 the manor, subject to the term of 500 years assigned to Vaillant, and to the term 'of 600 years assigned to Neate, was limited to the use of Hugh Smith, deceased, the father of the Defendant, Hugh Smith, his heirs and assigns. The reversion of the advowson was not specially mentioned in the conveyance ; but, as between the parties to the cause, it was assumed that the words used included that reversion. In September 1802 Hugh Smith, the father, assigned the manor, with the usual general words for manors, to Jones and Kindersley, for a term of 500 years, by way of mortgage, to secure 4000 and interest. In 1803, in consideration of 1750, the advowson was assigned by the executors of Vaillant to the Defendant, Hugh Smith, for the residue of the term of 500 years created in 1745, upon trust for Hugh Smith, the father, his executors, administrators and assigns, to be assigned and disposed of from time to time as they or he should direct or appoint. And by the same indenture the advowson was assigned by the executor of Norris to Eaymond Eowe, for the residue of the term of 500 years created in 1712 and 1741 upon the like trusts. In 1813 the manor and other the premises comprised in the mortgage to William Eowe were assigned by his executors to General Wallis, for the residue of the term of 600 years, subject to the then existing equity of redemption. [90] By an indenture, dated in 1820, and indorsed on the secondly above-mentioned indenture of 1791, the manor, and such of the premises comprised in that indenture as were assigned to Seton, were assigned by him to John Smith, for the residue of the term created in 1712, in trust for General Wallis, for better securing the 10,000 and interest; and subject thereto in trust for Hugh Smith, the father, his heirs and assigns, and to attend the inheritance. Hugh Smith, the father, died in 1831, having by his will, in 1828, devised the manor and advowson upon trust to pay certain annuities, since discharged; and, subject to that trust, to the Defendant, Hugh Smith, for life, with remainder to Hugh Wallis Smith, the eldest son of the Defendant, Hugh Smith, in tail, with remainder to the Defendant, Hugh Smith, in fee. In 1835 the Defendants, Hugh Smith and Hugh Wallis Smith, executed indentures of that date, and afterwards enrolled, whereby the manor and advowson were disentailed and were limited, subject to the annuities, to such uses as they should jointly .appoint; and, in default of and subject to any such appointment, to such uses as the .same were limited to by the will of Hugh Smith, the father. By indentures of lease, appointment and release, dated in 1840, and made between...
To continue reading
Request your trial
-
Daniel v Freeman
...9 Ves. 407. Wiltshire v. RabbitsENR 14 Sim. 76. Wilmot v. PikeENR 5 Hare, 14-20. Jones v. JonesENR 8 Sim. 633. Rooper v. HarrisonENR 2 K. & J. 86. Lee v. HowlettENR 2 K. & J. 531. Re Hughes' TrustsENR 2 H. & M. 89. Rochard v. FultonENR 1 Jo. & Lat. 413; 7 Ir. Eq. R. 131. Re WardENR 2 J. & H......
-
Attwood v Lloyd
...him, for the term which overrides it must be held in trust to give effect to the equities of the different claimants ; Hooper v. Harrison (2 K. & J. 86). The legal estate being in the sisters, it is a pure question of equity between the other claimants, without any regard to the legal estat......
-
Lee and Wife v Patrick Hayes
...Pleas. LEE and WIFE and PATRICK HAYES. Rice v. RiceENR 2 Drew. 78. Rooper v. HarrisonENR 2 K. & J. 86. Montefiori v. Montefiori 1 W. Bl. 364. Turton v. BensonENR 1 P. Wms. 496. The Vauxhall Bridge Co. v. The Earl of SpencerENR Jacob, 67. Roberts v. RobertsENR 3 P. Wms. 66. Eyre v. M'Dowell ......
-
Lee v Howlett
...were made, and that no sale co'uld have been made at the time when the mortgages were executed. He cited also Booper v. Harrison (2 Kay & J. 86). vice-chancellor Sir W. page wood. I am of opinion that, as to that portion of the property which was ordered to be sold, I am bound to hold, on t......