Sir Moses Montefiore-Appellant; Peter Browne, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 30 July 1858 |
| Date | 30 July 1858 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 96
House of Lords
Mews' Dig. ii. 1402; vi. 1660; ix. 1600; x. 1377, 1567; xi. 618; xiv. 365. S.C, 4 Jur. N.S. 1201. On point as to trust deed for creditors, see Johns v. James, 1878, 8 Ch. D. 744. On point as to constructive notice, cited in English and Scottish Mercantile Investment Trust v. Brunton (1892), 2 Q.B. 10, 705, 706; and see Bailey v. Barnes (1894), 1 Ch. 25.
Family Deeds - Creditors - Trusts - Power of Revocation - of Sale - Practice - - Incumbered Estates Court - Chancery.
[241] SIR MOSES MONTEFIORE -Appellant; PETER BROWNE,-Respondent July 19, 20, 22, 23, 30, 1858]. [Mews' Dig. ii. 1402; vi. 1660; ix. 1600; x. 1377, 1567; xi. 618; xiv. 365. S.C, 4 Jur. N.S. 1201. On point as to trust deed for creditors, see Johns v. James, 1878, 8 Ch. D. 744. On point as to constructive notice, cited in English and Scottish Mercantile Investment Trust v. Brunton (1892), 2 Q.B. 10, 705, 706; and see Bailey v. Barnes (1894), 1 Ch. 25.] Family Deeds-Creditors-Trusts-Power of Revocation-of Sale-Practice--Incumbered Estates Cowrt-Chancery. A. and B., father and son, executed deeds for the settlement of some of their family estates, and for payment of the debts of A. Certain estates were conveyed to trustees, with a power to sell, on the consent in writing, of A. and B.,. or the/ survivor, and to apply the produce of the sale in payment of debts therein specified. A. was indebted to D., as trustee for an infirmary, and A. and B. had given joint and separate warrants of attorney to secure the debt. Separate judgments had been entered up against A. and against B. The amount of the sums thus due was stated in the deed. D. had some legal interest in the estates themselves. He was a party to the deed, and executed it: Held, that this deed created a trust in favour of the infirmary of which he was a trustee. In this deed there was a power of revocation to be exercised by A. and B.; A. died without exercising it: Held, that the power of revocation was then at an end. In the deed executed by A. and B., there was a conveyance to certain persons, with a power of sale, to be exercised with the consent, in writing, of A. and B., or the survivor of them. A. died without having concurred in any consent to a sale. B. afterwards borrowed money from an insurance company, the repayment of which was secured by mortgage of his estates, of which those which were the subject of the first deed formed part. In the mortgage, to which the creditor under the first deed was a party, and which fully recited that deed, there was a power of sale given to the mortgagee: Held, that this was a consent, in writing, sufficient to satisfy the words of the first deed. A mortgage given by B. in 1832 to an insurance company, from which he had obtained a loan of money, recited a previous deed, dated in 1823, executed by A. 96 MONTEFIORE V. BROWNE [1858] VII H.L.C., 242 and B., for the settlement of certain family estates, and for the payment of some of A.'s debts, and recited that in that deed a sum of £3200 was due to D., as trustee for an infirmary, on a judgment against A. and B., that that money, with interest, had been paid off, and that it was intended to enter satisfaction on that and all other judgments affecting the mortgaged lands. There were separate judgments, at the suit of D., against A. and against B., dated in 1810 and 1812, but a war-[242]-rant of attorney given by D. in 1819, authorised satisfaction to be entered on the roll as to them. There was no judgment against them jointly for the sum stated in the mortgage. The mortgagee caused satisfaction to be entered on the roll as to the separate judgments of 1810 and 1812, but made no farther inquiries: Held, that as the mortgage itself had recited a joint judgment for a specific sum, the mortgagee had been guilty of negligence in not looking farther into the matter, and must therefore be taken to have had a proper notice of the unsatisfied claim under the deed of 1823. A Court of Equity may, by additional orders, without a bill of review or a re* hearing, deal with a fund which is still in court. But where the party so requiring the Court to deal with the fund might have appeared at an earlier stage of the cause, he will be required to pay all the additional costs which have been occasioned by the imperfect manner in which his claim was brought forward. The Incumbered Estates Court, in a case where the rights of parties are under adjudication in the Court of Chancery, is ancillary to Chancery, and though it has ordered a sale of estates, it may delay the distribution of the fund obtained by such sale until Chancery has adjudicated on a claim presented to its notice. In 1810 the Right Honourable Denis Browne was a governor and trustee of the County of Mayo Infirmary, and in that capacity he advanced a sum of £2200 (of the then Irish currency) being the money of the infirmary, to Dominick Geoffrey Browne. To secure the repayment of this sum, with interest, a bond, in the penal sum of £4400 was given by Dominick Geoffrey Browne and Dominick Browne, his son, the latter of whom subsequently became Lord Oranmore. Separate judgments were, as of Trinity Term 1810, entered up against these two obligors, in favour of Denis Browne, as trustee o'f the Mayo Infirmary. In 1811, Denis Browne advanced a farther sum of £1000 of the infirmary money to Dominick G. Browne, and took his bond to secure the same in the penal sum of £2000, and a similar judgment, as of Easter Term 1812, [243] was entered up on this bond. In 1815, Denis Browne advanced two sums of £1600 and £500, also the money of the Mayo Infirmary, to Dominick G. Browne and Dominick Browne, on their joint and several bonds and warrants of attorney in the penal sums of £3200 and £1000; and in Trinity Term 1815 separate judgments against Dominick Browne alone were entered up thereon. Shortly before 1819, Dominick G. Browne and his son, Dominick, were desirous of re-settling the family estates, to effect which it was arranged that Denis Browne should execute warrants to declare the judgments of 1810 and 1812, satisfied, on Dominick Geoffrey Browne and his son, Dominick, executing to him, as trustee for the infirmary, a new bond (with a warrant of attorney to enter up judgment) in the penal sum of £6400 to secure £3200. Dominick G. Browne and his son, Dominick, accordingly, executed in favour of Denis Browne, for the sum of £6400, their joint and several bond, dated 5th February 1819, together with a warrant of attorney to enter up judgment thereon, and Denis Browne, on the 20th April 1819, executed warrants of attorney in their favour to declare satisfied the judgment of 1810 against both these persons, and the judgment of 1812, which had been obtained against Dominick G. Browne alone. The arrangements for the re-settlement of the estates were not completed till 1823, when certain deeds were executed for that pur pose. Two of these were indentures dated 24th of June of that year. The first was made between Denis Browne of the first part, George Clendinning of the second part, Dominick Geoffrey Browne of the third part, Dominick Browne of the fourth part, various other persons and parties not necessary to be named, and George and Alexander Clendinning of the tenth part. By this indenture, Dominick G. and H.L. xi. 97 : 4 VII H.L.C., 244 MONTEFIORE V. BROWNE [1858] Dominick Browne, appointed certain lands [244] called Coolaran, Lacka, Cahiralee, and Cahirtemore, in the county of Galway, to G. and A. Clendinning, and their heirs, upon trust that- they should, as soon as conveniently might be, " with the consent in writing of Dominick G. Browne and Dominick Browne, or the survivor of them, sell the same," and hold the money on the trusts to be declared by the following indenture. The other indenture, which was dated on ihe same day, after reciting the former deed, and likewise a limitation to Dominick Browne of a rent-charge of £900 a year during the life of himself and his father, it was declared that G. and A. Clendinning should stand seised of the money raised by the sale of the said lands on trust, in the first place, to pay the expenses of the sale, etc.; in the next place, raise a sum of £8275 Irish currency, and apply the same on such trusts as Dominick G. Browne and Dominick Browne should, by any deed, etc., in writing, with or without the power of revocation, appoint, and in default of such appointment, out of the said sum of £8275 pay and discharge the debts and legacies thereinafter mentioned, that is to say, " the sum of £3200 Irish currency, due to the Right Honourable Denis Browne, as trustee for the Mayo* Infirmary, on a judgment against the said Dominick Geoffrey Browne and Dominick Browne," certain legacies bequeathed in the part recited will of Peter Lynch, certain other sums of money, some of which (their amounts were not specified) were described as borrowed by Dominick Geoffrey Browne and Dominick Browne, for the sole benefit of the latter, and pay the surplus, if any, of the £8275 unto Dominick Browne, his heirs, etc. Till the sale the trustees were to apply the rents on such trusts as Dominick Geoffrey and Dominick Browne, should by deed appoint, and in default of such appointment keep down the interest due for the principal sum of £3200, and for [245] the legacies of Mr. Lynch, and pay the remainder to Dominick Geoffrey Browne for his use for life, and after his death to Dominick Browne for his use. If the sale should be made during their joint lives, and should produce more than the principal of the £3200, and the legacies under Mr. Lynch's will, then a deduction was to be made from the amount of Dominick Browne's rent-charge of £900 a year in proportions therein specified. And it was declared, that Dominick Geoffrey Browne, as between himself and his son, should keep down the interest on the unspecified debts. There was a...
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