The President and Scholars of the College of St. Mary Magdalen, Oxford, - Appellants; Attorney General, - Respondent

JurisdictionEngland & Wales
Judgment Date13 June 1857
Date13 June 1857
CourtHouse of Lords

English Reports Citation: 10 E.R. 1267

House of Lords

The President and Scholars of the College of St. Mary Magdalen, Oxford
-Appellants
the Attorney-General
-Respondent

Mews' Dig. iii. 276. S.C. 26 L.J.Ch. 620; 3 Jur. N.S. 675; 5 W.R. 716; 18 Beav. 223. On point as to gift to charities, considered and explained in Governors of Magdalen College v. Knotts, 1878, 8 Ch.D. 728; and Bobbett v. S. E. Ry. Co., 1882, 9 Q.B.D. 427. As to position of Attorney-General, cited in A.-G. v. Wilson, 1901, 49 W.R. 195.

Charity Trusts - Statute of Limitations - Attorney - General - Purchasers for Value.

[189] The PRESIDENT and SCHOLARS of the College of ST. MARY MAGDALEN, OXFORD,-Appellants; the ATTORNEY-GENERAL,-Respondent [May 14, 15, 18, 19; June 13, 1857]. [Mews' Dig. iii. 276. S.C. 26 L.J.Ch. 620; 3 Jur. N.S. 675; 5 W.R. 716; 18 Beav. 223. On point as to gift to charities, considered and explained in Governors of Magdalen College v. Knotts, 1878, 8 Ch.D. 728; and Bobbett v. S. E. Ry. Co., 1882, 9 Q.B.D. 427. As to position of Attorney-General, cited in A.-G. v. Wilson, 1901, 49 W.R. 195.] Charity Trusts-Statute of Limitations-Attorney-General-Purchasers for Value. The presumption in a gift of lands for charitable purposes, is that they are devoted " for ever " to the purposes of the charity, and that no authority to sell them is intended; but a sale of such lands at a distant date with long acquiescence in such sale, and no account of the origin of the charity, may give rise to a presumption that there had been a power enabling the holders of the charity lands to sell them, and that the sale was made under that power. Charities are trusts, and are as such within the operation of the 3 and 4 Will. 4, c. 27. The first section of the statute extends the word " person " to a class of persons as well as to individuals. The poor of a parish are a class of persons within the meaning of that section. Where the Attorney-general having no independent rights of his own, stands only in the same situation as those who are entitled to the benefit of a charity, if they would be barred by lapse of time, he is equally barred. Lands were given for the benefit of the poor of two parishes, and were placed under the management of the rectors and churchwardens, who', with the consent of the vestries, might lease them. The rectors, etc., executed a lease of them for ever to the president and scholars of a college subject to a fixed rent- 1267 VI H.L.C., 190 ST. MARY MAGDALEN, OXFORD V. A.-G. [1857] charge. Above 60 years after the execution of this lease (the fairness of which at the time of its execution was not impeached), the Attorney-general filed an Information against the lessees, praying that it might be cancelled : Held, that the real Plaintiffs in this suit were the poor of the two parishes; that they were in the situation of a cestui que trust, that the suit by information of the Attorney-general (who had no independent rights), was a suit by them; that they could not maintain such suit unless against their trustees except within 20 years; that this was not such a suit, but was a suit against purchasers for value, and therefore that it was barred. For a long period previously to the reign of George II. the parish of St. Olave, Southwark, possessed a narrow strip of waste land, on the south side of Tooley-street, lying between that street and some land belonging to the president and scholars of Magdalen College, Oxford, called the [190] " Isle of Ducks," from which it was separated by a common sewer. By the Act 6 Geo. 2, c. 11, the ancient parish of St. Olave was divided into the two parishes of St. Olave, Southwark, and St. John, Horsleydown; and it was thereby enacted that all charities and donations that had theretofore been granted to and for the benefit of St. Olave, Southwark, should be divided between the two' parishes in the following manner: that three-fifths should be for the sole use and benefit of the old parish, and that out of the revenue of the other two-fifths there should be paid to' the churchwardens of the old parish the annual sum of 29, free of taxes, etc., for the benefit of the poor of the old parish, and that the residue of the two-fifths should be for the benefit of the new parish ; that the rector or senior churchwarden of each of the parishes should jointly " collect the charities, donations, etc., and should and might, with the consent of the vestry of each parish, make leases of the lands, etc. so given for charitable purposes, and should do, perform, and execute all and every such acts and things relating to the management of the said charities, in such manner as the churchwardens of St. Olave, Southwark, could or might have done, before the division of the parishes and the passing of the Act." Leases, sometimes of a long date, had, on different occasions, been made of this parish property. In the year 1786 there were several discussions in the vestry on the subject of these parish lands. On the 5th of December 1786 there was a notice of meeting, " to take into consideration proposals for the renewal on lease of " the lands in question, which were then leased to a private individual. These proposals were to surrender the existing lease, and to take the premises on a building lease, for ninety-nine years, at a peppercorn for the first year, and 12 a year for the remainder. This was not accepted. By a resolution of the Vestry of St. [191] John's, of that date, the churchwardens were ordered to meet the churchwardens of St. Olave's, " to treat with any persons for the letting of the ground and premises; " and they were empowered to " execute one or more lease or leases for ninety-nine years, on such terms and restrictions as they shall think fit." There were other notices and resolutions of a similar sort; and at a vestry of St. Olave's on the 19th February 1798, notice of another vestry was given, at which these matters were debated, and it was unanimously resolved, " that the officers and auditors of this parish be empowered, with the officers and auditors of St. John, to meet and treat with the persons empowered by Magdalen College, Oxford, or any other person, for the letting or disposal of the ground belonging to these parishes bounded by the Isle of Ducks." A similar resolution passed at St. John's, but could not be proved, as the vestry books there, of that period, had been lost. An agreement to lease this ground in perpetuity to the " president and scholars of Magdalen College, at a rent of 15 per annum, secured by a rentcharge on the land," was ultimately made. To carry this agreement into effect, a fine sur conusance de droit was levied on the 3d of March 1790, and an indenture or deed of feoffment was, on the same day, executed. The Kev. James Erans, rector of the parish of St. Olave's, the churchwardens, and two- of the principal inhabitants of that parish, were parties of the first part; the Rev. Richard Penrieck, rector of St. John, the churchwardens, and two of the principal inhabitants of that parish, of the second part, and the president and scholars of the college of St. Mary Magdalen, of the third part; and by this deed, in consideration of a perpetual annuity or rentcharge of 15 per annum secured to the said rectors, churchwardens, principal inhabitants,, etc.; by an indenture bearing 1268 ST. MARY MAGDALEN, OXFORD V. A.-G. [1857] VI H.L.C., 192 even date therewith, they did grant unto the said president and scholars, [192] and their successors, the land in question, (the metes and bounds of which were particularly described) to hold the same to the said president and scholars, their successors and assigns, for ever. An indenture, in the usual form, charging this annuity of 15 on the lands thus: described, and also on the Isle of Ducks, was executed on the same day as the deed. This indenture also contained a declaration that the parties thereto of the second and third parts, (the rectors, etc., of the two parishes) " should stand seised of the said annual sum or yearly rentcharge' of 15, upon trust to apply the same for the service and benefit of the said parish," in the manner prescribed by the hereinafter mentioned Act of Parliament, " the rentcharge to be received and taken by the rector or senior churchwarden of each of the said parishes." These indentures were duly enrolled in the: Court of Common Pleas, at Westminster. The president and scholars entered into possession of the land, covered up the old sewer, made a new one, added part of their land to Tooley-street, which was thereby considerably widened, and then let the rest on building leases; and houses had been built thereon, partly on the old lands of the college, and partly on that which had been thus acquired. The rentcharge was regularly paid up to Michaelmas 1847, when the parish officers of the two parishes refused to receive it. On the 31st January 1852 the present information was filed by the Attorney-general, at the relation of some, and on behalf of all the inhabitants of the two' parishes, against the president and scholars of St. Mary Magdalen, and against the churchwardens and overseers of the parishes, stating that the land was held by the rectors and churchwardens for charitable purposes for the benefit of their two parishes; that the rents and profits had always been applied for the benefit of the two parishes; that the rectors and [193] churchwardens had no power to alienate the land; and that the consideration given for the alienation was inadequate; and the information prayed that the deed might be delivered up to be cancelled; that possession of the land might be given up; that accounts might be taken, and for the usual relief. On the 14th February 1852 the Appellants filed their answer, and, in addition to defences on the merits, insisted on the Statute of Limitations, 3 and 4 Will. 4, c. 27. The cause was heard before the Master of the Rolls, in January 1854, and his Honour then expressed his opinion...

To continue reading

Request your trial
11 cases
  • Re Lot 114-69 Mukim 22, Singapore and another action
    • Singapore
    • High Court (Singapore)
    • 24 April 2001
    ...that the limitation period of 20 years had expired and the Attorney General therefore failed in his application. As noted in that case (10 ER 1267 at 1275), `charities are trusts, a favoured sort of trust, no doubt; but still a charity is a trust, and nothing more` even though the word `cha......
  • Cattley v Pollard
    • United Kingdom
    • Chancery Division
    • 7 December 2006
    ...charitable trust for the benefit of a defined class, even if the Attorney-General is the claimant [Magdalen College Oxford v Att-Gen, (1857) 6 HL Cas 189]. Even in the case of a non-charitable trust, however, it may happen that a trustee sues on behalf of his beneficiaries to recover the tr......
  • Oldham Borough Council v Attorney General
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 28 July 1992
    ... ... Oldham Borough Council Appellants and Her Majesty's Attorney General Respondent [1992] EWCA Civ J0728-3 ... Lord ... As Lord Cranworth L.C. said in St Mary Magdalen, Oxford v. A.G. (1857) VI H.L. Cas. 189 ... ...
  • Brisbane City Council v Attorney General for Queensland
    • United Kingdom
    • Privy Council
    • Invalid date
    ...National Agricultural and Industrial Association v. Chester (1974) 48 A.L.J.R. 304. St. Mary Magdalen, Oxford v. Attorney-General (1857) 6 H.L.Cas. 189, H.L.(E.). Schebsman, In re [1944] Ch. 83; [1943] 2 All E.R. 768, C.A. Schellenberger v. Trustees Executors and Agency Co. Ltd. (1952) 86 C......
  • Request a trial to view additional results
1 books & journal articles
  • Equity, Trust and Restitution
    • Singapore
    • Singapore Academy of Law Annual Review No. 2001, December 2001
    • 1 December 2001
    ...successful claim in adverse possession could not be made against a charity. Following President, etc of St Mary Magdalen, Oxford v A-G(1857) 6 HL Cas 189, Tay Yong Kwang JC reiterated that charities are trusts, and where there appears to be no surviving trustee, the Attorney General is the ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT