Swinfen v Swinfen
| Jurisdiction | England & Wales |
| Judgment Date | 05 December 1860 |
| Date | 05 December 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 603
ROLLS COURT
S. C. 7 Jur. (N. S.) 89; 4 L. T. 194; 9 W. R. 175.
[199] swinkbn v. swinfen (No. 3). Nov. 15, 16, Dec. 5, 1860. [S. C. 7 Jur. (N. S.) 89 ; 4 L. T. 194 ; 9 W. R. 175.] When the owner of an estate in fee-simple becomes entitled to a charge on that estate, prima fade the charge, in equity at least, merges in the inheritance, unless the owner of the estate does some act to keep it alive, or unless, from the circumstances of the case, it would be for his interest that it should continue to be a subsisting charge. Devise by the owner in fee without mentioning a charge on it to which he was absolutely entitled, held to be some indication of his intention to merge it. The testator was owner in fee of an estate on which there was a charge of 6000 to which he was absolutely entitled, and a subsequent charge of a jointure in favor of B. The testator devised the estate in fee to B. Held, that she took discharged of the mortgage. One of the questions which arose in this case (see 24 Beav. 549 ; 27 Beav. 148) was, whether a sum of 6000 still subsisted as a charge on the testator's estate at Swinfen. The circumstances relating to this charge were as follows : - In 1795, on the marriage of the testator Samuel Swinfen with Susanna his wife, a sum of 13,000 was vested in trustees, on trust for the younger children of the marriage, and in default of younger children, to the survivor of the husband and wife. This sum of 13,000 was lent on mortgage, by the [200] trustees, to Baron Bliss. The only issue of the marriage was one son, Henry John Swinfen. In November 1830 the testator and his son executed a disentailing deed, and resettled the family estate at Swinfen, which they limited to such uses as Samuel Swinfen and Henry John Swinfen should by deed appoint, with remainder to the use of Samuel Swinfen 604 SWINFEN V. SWINFEN 29 BEAV. 201. for life, with remainder to the use of Henry John Swinfen in tail male, with remainder to the use of Samuel Swinfen, his heirs and assigns for ever. By an indenture, dated the 1st of December 1830, Samuel Swinfen and Henry John Swinfen, in part exercise of their power of appointment, demised the Swinfen estate to Philip Hughes for 2000 years, by way of mortgage, for securing 6000 lent to them. This sum was laid out by Samuel Swinfen and Henry John Swinfen in the purchase of the tithes of the Swinfen estate. Shortly after this mortgage of the Swinfen estate, Baron Bliss paid off 6000 (part of the said 13,000), and the trustees of the settlement paid that sum to Philip Hughes, and took from him a transfer of the mortgage and an assignment of the term of 2000 years. Samuel Swinfen was named as a party to the deed of transfer of the mortgage to the trustees, but he did not appear to have executed it. By another deed of the 18th of December 1830, a power was given to Henry John Swinfen to charge the Swinfen estate, by will, with a jointure for his wife, which power he, in 1854, executed by his will in favor of his wife Patience Swinfen, to the extent of 300 a year. In 1848 the wife of Samuel Swinfen died, and [201] thereupon Samuel Swinfen became absolutely entitled to the mortgage of 6000, hut ho never took any transfer of it or assignment of the charge. Henry John Swinfen died without issue in June 1854, and Samuel Swinfen being then absolutely entitled to the mortgage sum of 6000, became also, under the indenture of 1830, seised in fee of the Swinfen estate. He survived his son but a very short period, and died on the 26th of July 1854 without having declared any option, or expressed any intention with reference to the mortgage of 6000 on the Swinfen estate. By his will, dated the 7th of July 1854, Samuel Swinfen devised to his son's widow, Patience Swinfen, in fee, " All my estate at Swinfen or thereto adjoining," but his residuary personal estate passed to his next of kin, as undisposed of by his will. The question now arose, whether the 6000 was merged in the Swinfen estate, or passed to his next of kin as personal estate. Mr. E. Palmer and Mr. Hobhouse, for the Plaintiff, and Mr. Cotton, and Mr. Jonea Batemari, for the other next of kin. The mortgage for 6000 never merged in the inheritance, it was kept separate, and on the testator's death it passed as personal estate to his next of kin. The interest of the testator required that the mortgage and the estate should be kept distinct on the death of his wife in 1848, when he became absolutely entitled, by survivorship, to the 6000; the testator was only tenant for life of the Swinfen estate, and therefore it was clearly to his interest to keep the mortgage on foot. Again, after 1854, when his son died, it...
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