Toulmin v Steere
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1816 |
| Date | 01 June 1816 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 81
HIGH COURT OF CHANCERY
See Squire v. Ford, 1851, 9 Hare, 60; Otter v. Lord Vaux, 1856, 2 K. & J. 650; 6 De G. M. & G. 643; Whalley v. Whalley, 1860, 2 De G. F. & J. 322; Vane v. Vane, 1872-73, L. R. 8 Ch. 392, n. Considered, Anderson v. Pignet, 1872, L. R. 8 Ch. 180. Observed upon, Stevens v. Mid-Hants Railway Co., 1873, L. R. 8 Ch. 1064. Limited, Adams v. Angell, 1876-77, 5 Ch. D. 634. Not applicable to Indian transactions, (Gokuldoss Gopaldoss v. Rambux Seochand, 1884, L. R. 11 Ind. App. 126. Distinguished and reflected on, Thorne v. Cann, [1895] A. C. 11. Questioned, Liquidation, Estates Purchase Co. v. Willoughby. [1896] 1 Ch. 726; but see S. C. on appeal, [1898] A. C. 321.
toulmin -c. stkere.(i) Rolls. June 1, 1816, August 24, 1S17.,_,., ,,/'., [See Squire v. ford, 18:51, D Hare, GO; Utter v. Lord Vaux, L85G, 2 K. & .1. G50 ; 0 De G. M. & G. G43 ; Whalley v. Whalley, I860, 2 De G. F. & .1. .'522 ; Vane v. Vane, 1872-73, L. R. 8 Ch. 31)2,11. Considered, Anderson v. Pignet, 1872, L. R. 8 Ch. 180. Observed upon, Stevens v. Mid-Hants Railway Go., 1873, L. R. 8 Oh. 10G4. Limited, Adams v. Angell, 187G-77, 5 Ch. D. G34. Not applicable to Indian transactions, (rokuldoss Gojialdoss v. Rambux tieochand, 1884, L. R. 11 Itid. App. 12G. Distinguished and reflected on, Thome v. Cann, [1895J A. C. 11. Questioned, Liquidation,Estates Purchase (Jo. v. Willoughby. [18'JGJ 1 Ch. 72(i; but see S. C. on appeal, [1898J A. C. :!21.] Purchaser having employed the, Vendor's agent who had notice of an iricumbrance, charged with notice, notwithstanding the purchase was made under the sanction of the Court, arid an infant was interested in it. Purchaser of an equity of redemption cannot set up a prior mortgage of his own, or which he has got in, against subsequent incumbrances of which he had notice. In May 1805, Ann tiimpson, spinster, purchased of Richard Witts, an annuity of 180 for three lives in consideration of 2000. The annuity was granted and secured in the usual form, by way of rent charge upon certain lands of which Witts was the owner, subject to a mortgage in fee to Robert Harrison for securing 5000 and interest, which mortgage was accepted iu the annuity deed : The deed contained a covenant (amongst others) on the part of Witts for further assurance ; and also a power for Witts to repurchase the annuity on payment of 2045 and all arrears. Mark Noble Daniel acted as solicitor for both parties, prepared the deed, and was one of the subscribing witnesses to it ; and so long as the annuity continued to be paid, the payments were made through his hands. in August 1807, Ann Simpson intermarried with Bryan Holme ; on which occasion the annuity in ques-[211]-tion was assigned to Toulmin and Thomas Butterfield Simpson, upon certain trusts. Daniel having become much embarrassed, quitted the country in 181U ; up to which time the annuity was regularly paid. But before that time, viz. in 180G, Witts borrowed of one IV ilby 3000 on a second mortgage of these premises, and Wilby afterwards got in the first mortgage by a transfer from Harrison. It did not appear whether Wilby had, at the time of his loan, any notice of Airs. llolmtSs annuity, In March 1810, Witts sold the estate to the Trustees of the Will of Lee titeere, who purchased it under the authority of the Court of Chancery, and it was conveyed to the uses of the will ; under which uses Lee titeere titeere (the son of Witts) was tenant for life in possession, and Lee Steerr., an infant, his son, was tenant in tail in remainder. The mortgages for 5000 and 3000 were paid oil out of the purchase money, and WMy the mortgagee joined in the purchase deed and conveyed the legal estate to the uses of the will. William, Haydon and Mark Noble Daniel were, the Trustees of the will. 82 TOULMIN V. STEERE 3MEE. 212. The bill was originally filed by Toulmin and Simpson, the Trustees of Mr. and Mrs, Holme's settlement, and their cestui que trusts, against Lee titeere Steere, Lee Steere (the infant), and Daniel and Hat/don (the Trustees) ; but, subsequently, by an amendment, the name of Toulmin was struck out as a Plaintiff, and he was made a Defendant. The bill charged notice of the annuity, and prayed a declaration that it was a charge on the lands purchased by the Defendants, in preference to the mortgages, and also an account and payment of the arrears : and in case the Court should think the Defendants had a right to set up the mortgages, or either of them, in bar of the annuity, it [212] prayed that the Plaintiffs might be at liberty to redeem the mortgages ; that, upon such redemption taking place, the Defendants might bo decreed to convey the legal estate to the Plaintiffs discharged of all equity of redemption, or so that the Defendants might not be permitted afterwards to redeem, except on condition of conveying the legal estate to the Plaintiffs, and of making such further assurances as might be necessary to enable the Plaintiffs to recover their annuityas the first charge on the premises. Thejbill prayed also an in junction against assigning the mortgages, and a receiver. It was admitted by the answers of the Defendants to the amended bill, and proved by evidence taken in the cause, that Daniel acted, in the sale and purchase of the estate, as agent and solicitor for Witts the seller, and also for the purchasers. It was understood that the Defendants had no actual notice of the annuity ; and it was stated that Witts...
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