Sturge v Sturge
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1850 |
| Date | 26 May 1850 |
| Court | High Court of Chancery |
English Reports Citation: 47 E.R. 1767
HIGH COURT OF CHANCERY
S. C. 12 Beav. 229; 19 L. J. Ch. 17; 14 Jur. 159.
[469] sturge v. sturge. May 26, 1850. [S. C. 12 Beav. 229 ; 19 L. J. Ch. 17; 14 Jur. 159.] By a decree at the Rolls, the Plaintiff had been declared entitled to real estate, which had been formerly conveyed by him to some of the Defendants, under circumstances which induced the Court to set aside the conveyance. None of the parties wished to interfere with some sales which had been since made of parts of the estate, but the amount of the purchase-money for them was ordered to be paid to the Plaintiff. The decision was appealed from, and upon motion to stay proceedings pending the appeal, upon payment into Court of the amount of the purchase-money, the Court made the order, not on account of the alleged poverty of the Plaintiff, but on the 1768 STURGE V. STUHGE 2 H. A TW. 470. ground that the substitution of the money for the estate was an accident arising from the sale of part of the property, and that the Plaintiff would be in the same position as if none of the estates had been sold. This suit was instituted by an eldest son, William Sturge, who was entitled to real estates as tenant in tail; and the object of it was to set aside a deed of the 15th of October 1841, by which he had conveyed those estates to his younger brothers, Daniel Sturge, Tobias Walker Sturge, and Samuel Sturge, he being at that time ignorant of his rights, and having received an inadequate consideration. Part of the estates had been sold, and the Plaintiff by his bill offered to confirm the sales, and prayed that he might be at liberty to take the purchase-monies in lieu of that part of the estates. The cause was heard before the Master of the Bolls in May and June 1849, and was decided in favour of the Plaintiff. The case is reported in 11 Beavan, 229. By the decree it was declared, that the indenture of the 15th of October 1841, so far as it was or purported to be a conveyance to Samuel Sturge and the Defendants Daniel Sturge and Tobias Walker Sturge, ought to be set aside : and it was referred to the Master to take an account of the rents and profits of the hereditaments comprised in that indenture received by Samuel Sturge, deceased, and the Defendants Daniel Sturge and Tobias Walker Sturge, or any or either of them, &c., since the death of Toby Walker Sturge, their father. And the Plaintiff electing to confirm the sale of the portion in the pleadings called Lots 6 and 8 of the same hereditaments made by Samuel Sturge and the Defendants Daniel Sturge and Tobias Walker Sturge to the Defendant Earl De Grey, it was ordered, that the Defendant Earl De Grey should be at liberty to pay to the Plaintiff the sum of 1208, 5s. remaining due from the said earl [470] on account of the purchase-money of the said lots and the timber thereon, together with interest on the said sum at 4 per cent, from the 25th of March 1844, when the earl entered into possession ; and thereupon it was ordered, that the Plaintiff and the Defendants Daniel Sturge and Tobias Walker Sturge, and all proper parties, should convey and assure the lots to the earl, or as he should direct, to be settled by the Master if the parties differed. And the Master was also to take an account of all sums received by Samuel Sturge, Daniel Sturge, and Tobias Walker Sturge from the Defendant Thomas Buckland, on account of the purchase-monies of Lots 2, 3, 4, 7 and 9 ; and it was ordered, that Daniel Sturge and Tobias Walker Sturge should pay to the Plaintiff what should be found to have been so received, with interest at 4 per cent.; and Thomas Buckland was to be at liberty to pay to the Plaintiff the sum which the Master should find to have been so received, with interest; and such payment being made, the Plaintiff was to convey the lots to Thomas Buckland. And in default of payment by Daniel Sturge and Tobias Walker Sturge or Thomas Buoklancl, it was ordered, that Thomas Buckland should reconvey the said lots to the Plaintiff, and deliver up the title-deeds ; and that the Master should take an account of the rents received by Thomas Buckland, and fix an occupation rent in respect thereof. And upon such payment or reconveyance to the Plaintiff by Thomas Buckland, it was ordered that Thomas Buckland should be at liberty to prosecute the decree against Daniel Sturge and Tobias Walker Sturge in the name of the Plaintiff, in order to recover against them the amount paid by him. The decree contained similar directions as to Joseph Mill, the purchaser of Lot 5, and as to the representatives of John Seager Buckland, deceased, the purchaser of two other pieces of land forming part of the hereditaments comprised in the indenture. The brothers of the Plaintiff now applied by motion be-[471]-fore the Lord Chancellor to stay any proceedings under the decree so far as it directed the payment of any money to the Plaintiff, until the appeal had been disposed of,(l) the Master of the Rolls having previously refused a similar motion. Mr. Bethell and Mr. Follett, in support of the motion before the Lord Chancellor, contended, that, according to the true construction of the decree, the payment of the money was not compulsory on the Appellants; and that, in default of payment, the decree gave the Plaintiff the estate itself; so that, by the payment of the money into Court, the Plaintiff would have the double security of the money and the estate. If the estate alone were conveyed to the Plaintiff, he could not make away with it pending the appeal. But if the money were paid to him, there could be no security 3H.&TW.471. STURGE V. STUBGE 1769 for its return in case the appeal should succeed, inasmuch as he was in very impoverished circumstances. Mr. Malins and Mr. Cairna, in opposition to the motion, stated, that the Plaintiffs poverty had been caused by the fraud which had been practised on him by the Appellants in depriving him of his estate. The order for payment of the money was positive, so far as regarded the Appellants, although the decree gave the purchasers an opportunity af redeeming the estate in case the Appellants should fail in payment. It had in fact been arranged that the purchases of such parts of the estate as had been sold, should not be disturbed, provided the purchase-monies were paid to the Plaintiff. Mr. Smythe and Mr. De Gex appeared for other parties. Mr. Bethell, in reply, offered to put the Plaintiff in the [472] same position as he would be in with respect to "the estate, if the estate were now conveyed to him, and, therefore, proposed that the purchase-money should be invested at the risk of the Appellants, and that the dividends should be received by the Plaintiff, until the appeal should be decided; and it was stated that this offer had been made at the Eolls, though the Master of the Rolls had not noticed it in his judgment. the lord chancellor said, that he did not see how the offer, if accepted, could prejudice the Plaintiff. A portion of the property had been sold, and no party was willing to disturb the sale. The offer placed the two parts of the property on the same footing. He did not agree in the construction put on the decree by 'Mr. Bethell. The principle on which the Court acted in these eases was that of doing all that was necessary for the security of the property pending the appeal, and not doing more. The offer went as far as the Plaintiff could require, unless he wanted to spend the principal. This relief was quite unconnected with the circumstances of the Plaintiff. Nor did his Lordship rest it upon the construction of the decree. It was an equity arising out of the appeal, and the possibility of an alteration of the decree. (1) The motion was heard by Lord Cottenham at his private residence, and the...
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