Toft v Stephenson
| Jurisdiction | England & Wales |
| Judgment Date | 20 March 1848 |
| Date | 20 March 1848 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 1
HIGH COURT OF CHANCERY
S. C. on appeal, 1 De G. M. & G. 28; 42 E. R. 461 (with note).
Reports of CASES ADJUDGED in the HIGH COURT OF CHANCERY before the Right Hon. Sir JAMES WIGRAM, Knight, Yice-Chancellor. By THOMAS HARE, of the Inner Temple, Esqr., Barrister-at-Law. Vol. VII. 1848, 1849, 1850- 12 & 13 Viet. 1850. [1] toft v. stephenson. March '2, 3, 4, 6, 7, 20, 1848. [S. C. on appeal, 1 De G. M. & G. 28; 42 E. E. 461 (with note).] A contract for the sale of an estate was made in March 1811; the agreement being that the purchase-money should be paid on the 13th of May following; and the purchaser was let into possession immediately on the execution of the contract. The purchase-money was not paid; but the purchaser, and persons claiming under him, continued in possession. In 1844 the assignees of the vendor filed their bill, claiming a lien on the estate for the purchase-money and interest from the day fixed for the completion of the contract. Held, that the right of the vendor to recover the purchase-money, as a lien or charge upon the land, was barred by the 40th section of the statute 3 & 4 Will. 4, c. 27. That, under a contract for the sale of land, the equitable title of the vendor, and those representing him, to recover from the vendee, and the obligation of the vendee ta pay, the purchase-money, in the sense in which it is described as a trust, is not an express trust within the 25th sect, of the stat. 3 & 4 Will. 4, c. 27; and, therefore^ that the right of the vendor, as such cestwi que trust, to a lien or charge upon the land for the amount of the purchase-money is not kept on foot, under the provision . contained in that section. That the right of the vendor-to recover the purchase-money, as a lien or charge upon the land, is not preserved by the existence of a suit by the creditors of the devisor of the estate, under whose will the sale took place, for the administration of his. estate ; nor by suits by the residuary devisees and legatees of the purchaser for the administration of his estate. Whether, from the relation existing between the vendor and purchaser of land, constituting the purchaser a trustee of the purchase-money for the vendor, there arises any other than a constructive trust, as to which the relief in equity, by analogy to the Statute of Limitation, will be barred by long acquiescence, queers. Joseph Marris, who died in 1808, by his will, devised his real estates (including-certain lands in the [2] parish of Owston, in the county of Lincoln), charged with the payment of his debts and legacies, in aid of his personal estate, to Thomas Marris and his heirs, and appointed Thomas Marris his executor. Thomas Marris proved the will; and by an agreement in writing, dated the 4th of March 1811, in consideration of 6300, to be paid to him by John Stephenson, on the 13th of May then next, agreed to sell and convey, surrender and assure, on the same day, unto and to the use of the said John Stephenson and his heirs, the copyhold lands in Owston, described V.-C. xiii.-1 X 2 TOFT V. STEPHENSON 7 HARE, 3. in the agreement as containing by admeasurement 151a. 2r. 28p., exclusive of the warping drain and lands belonging to the said Thomas Harris, which premises were then in the occupation of J. Kenshaw, and part thereof being in a state of warping. The agreement provided that the conveyance was to be prepared at the purchaser's expense, by certain solicitors therein named, the vendor making out the title; and it contained the provisions which follow:-"The said John Stephenson to have the use of the said Thomas Harris's warping drain, to warp said land so purchased as aforesaid, every third year during the term of twelve years, without paying any consideration for the same, but giving such security in case of any overflowing or damage done the country in the course of warping, as is usually done previous to warping; and also to have a right, with said Thomas Harris, to warp from the snow sewer; the said Thomas Harris to make and maintain the fences on the south and west side of land being east of Stockworth Road; the said Thomas Harris to be at no further expense from this day, with respect to that part of the purchased premises now in a course or state of warping; and said John Stephenson to maketthe usual allowances to the tenant on his quitting the premises, for management aid usual allowances: Provided always, and if any error [3] should have arisen in the Quantities of land so sold, an allowance of forty guineas per acre, and so in proportion for a greater or less quantity, shall be made to either party, the price being forty guineas per acre, and fifty given again upon the whole purchase-money." The agrelknlnt was signed by both parties. John Stephenson, the purchaser, was immediately, iet into possession of the premises. The purchase-money was not paid. Thomas Harris, the vendor, was a partner in trade with one Nicholson; and on the 13th of January 1812 Harris & Nicholson were declared bankrupts, and assignees were chosen. , In Hilary term 1812 an administration suit (Bower v. Mams) was filed by the creditors of the testator, Joseph Harris, against Thomas Harris, the executor and devisee, and the assignees in the bankruptcy of Harris & Nicholson. On the 6th of October 1812 John Stephenson, the purchaser, contracted to sell about 63a. 3r. 13p., part of the Owston estate, to Corneljus Sandars, for 4f 00, with lawful interest from the 6th of April following : and Cornelius Sandars was forthwith let into possession ; but the purchase-money was not paid. ' ,,, ..'; The decree for the accounts in the creditor's suit (Bower v. Harris) was made on the 16th of Hay 1816. ; John Stephenson, the purchaser, died in July 1827, having by his will, dated in 1817, devised and bequeathed his real and personal estate to trustees for sale, and _given the residue (after payment of his debts [4] and applying the interest of 1000 for Elizabeth, his wife) to his eight children. The executors and trustees named in his will refused, to accept the trusts, and Elizabeth, the widow, obtained letters of administration, and with her seven younger children filed a bill (Stephenson v. Stephenson) against Joseph, the heir at law of John Stephenson, for the appointment of trustees; in which suit the said Joseph Stephenson and or|e W. Bead were appointed trustees. I " On the 13th of June 1828, by an order made in Somr v. Harris, it was referred to the Haster to inquire whether any and what contrac| had been entered into by Thomas Harris, previously to his bankruptcy with John? Stephenson, for the sale to him of any and what part of the real or leasehold estates of the testator, Joseph Harris, and whether it was for the benefit of the parties interested in the said estates that such contract should be carried into execution. The Haster's report under this reference, dated the 31st of Harch 1837...
To continue reading
Request your trial
-
Toft v Stevenson
...English Reports Citation: 43 E.R. 1055 BEFORE THE LORDS JUSTICES. Toft and Stevenson S. C. 7 Hare, 1; 1 De G. M. & G. 28; 21 L. J. Ch. 129; 15 Jur. 1187. [736] toft v, stevenson. Before the Lords Justices. July 27, 1854. / [S. C. 7 Hare, 1 ; 1 De G. M. & G. 28 ; 21 L. J. Ch. 129 ; 15 Jur. 1......
-
Howlin v Sheppard
...Bell Ll. & G. Temp. Plunket, 44. Coote v. O'ReillyIR 1 J. & L. 455; 7 I. E. R. 356. Kellett v. KellyIR 5 I. E. R. 36. Toft v. StephensonENR 7 Hare, 1. Payment by Remainderman of Interest which accrued during preceding Life Estate — Remainderman's Right to be Recouped out of Life Estate â€......
-
Toft v Stephenson
...English Reports Citation: 42 E.R. 461 BEFORE THE LORDS JUSTICES. Toft and Stephenson S. C. 7 Hare, 1; 21 L. J. Ch. 129; 15 Jur. 1187. See Pears v. Laing, 1871; L. R. 12 Eq. 54; Lewin v. Wilson, 1886, 11 App. Cas. 647. [28] toft v. stephenson. Before the Lords Justices. Noo. 7, 8, 25, [S. C.......