Tynte v Beavan
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1864 |
| Date | 22 November 1864 |
| Court | High Court of Chancery |
English Reports Citation: 71 E.R. 474
HIGH COURT OF CHANCERY.
Expectant Heir. Reversionary Interest. Annuity Deed. Arrears of Annuity. Interest. Bill of Review.
[287] tynte v. hodge. tynte v. beavan. Nov. 15, 22, 1864. Expectant Heir. Reversionary Interest. Annuity Deed. Arrears of Annuity. Interest. Bill of Review. Sales of annuities charged on a reversion and other property supported on evidence of auctioneers and others in opposition to calculations of certain actuaries. A. clause giving interest on arrears of the annuity held not objectionable. A grantee of an annuity obtained a decree directing accounts, and authorising a receiver to keep down arrears, the costs of the annuitant to be added to his secnrity. Subsequently, the grantor filed a bill to have the annuity deed treated only as security for the money advanced and interest, on the ground that the purchase was from a reversioner at undervalue. Held, that this could ttot be clone without a bill of review. These bills were filed to have certain annuity deeds treated as security only for the amounts advanced under the following circumstances :- In the year 1847 the Plaintiff, then of the age of 47, was entitled in fee-simple in possession, subject to incumbrances, to the Maindee estate. He had also a life interest in the Svvinnerton estate, which was mortgaged to its full value. He was also entitled, subject to incumbrances, to a life interest in the Cefn Mably and Halswell estates in reversion expectant on the death of his father, then of the age of 68, and to a life interest in the Tate estate in reversion expectant on the death of the Plaintiffs father and a lady aged 71, and the decease, without issue, of an unmarried lady, also aged 71. Among the incumbrances on the Plaintiff's said estates were the following:-A mortgage to a Mr. Baker (who was the Plaintiff's family solicitor) for 5000, dated the 1st of August 1835; an annuity on five lives of 850, with a provision for interest at 5 per cent, on any arrears, granted to the General Reversionary and Investment Company on the 27th of May 1840, and redeemable for 8472 ; and a charge of 7653 in favour of the same company, originally contingent on the Plaintiff living for three years from the date of the transaction, viz., the 15th of January 1842. At the time when these ineumbrances were created the Plaintiffs interest in the Maindee estate [288] was subject to a life interest in one George Jones, who died in June 1844, at the age of 86 years. In the year 1847 a consolidated mortgage of the Maindee estate for 85,000 was negotiated with the West of England Insurance Company, and it was arranged that the 5000 mortgage to Mr. Baker should be postponed to the West of England mortgage. The sum proposed to be raised was not sufficient to pay oft' all the existing incumbrances, and the Plaintiff, being greatly embarrassed, entered into further negotiations with the General Reversionary and Investment Company, in which the Plaintiff was represented by the said Mr. Baker, who was the family 2H. &M.289. TYNTE V, HODGE 475 solicitor, and the company by Mr. Beavan, whose firm of Beavan & Anderson were their solicitors. The arrangement come to was that the sum of 28,000 should be advanced by the company, of which 1443, 5s. 6d. was to be paid to the Plaintiff, and the balance applied in satisfaction of the incumbrances of 1840 and 1842 held by the company, and of certain judgments against the Plaintiff which the company had purchased. In consideration of this sum of 28,000 the Plaintiff agreed to grant to the company an annuity of 3545, with interest at 5 per cent, on arrears, for 99 years if the Plaintiff should so long live, redeemable for 28,880, 5s., and charged on all his property aforesaid. These transactions were completed by a mortgage of the Maindee estate to the West of England Insurance Company for 85,000, dated the 4th of March 1847, and by three deeds dated the 9th of March 1847, whereby the annuity to the Reversionary Company was secured. The sums so obtained not being sufficient to relieve the Plaintiff from his embarrassments, he, on the same 9th of March, executed a mortgage on all his property to Mr. Baker for 4800, and future advances up to 6000. The 4800 was not paid to the Plaintiff, but applied by [289] Mr. Baker in discharge of advances made by him in satisfaction of the Plaintiffs liabilities and costs. At the same time the Plaintiff was in negotiation with Mr. Beavan for a further advance, in the course of which the existence of the said mortgage to Baker was not disclosed; and on the 10th of March 1847 the Plaintiff, in consideration of 4500 paid to him by Beavan, granted to him (Beavan) an annuity of 675, with interest at 5 per cent, on arrears, for 99 years if the Plaintiff, the grantee, the Queen and the Prince of Wales should so long live, redeemable for 4G68, 15s., and charged upon all the property aforesaid. In this transaction Mr. Baker did not act as the Plaintiffs solicitor, and (except that a Mr. Thomas was employed to explain and attest his execution of the deed and an accompanying warrant of attorney) no solicitor acted for the Plaintiff. In the year 1853 the mortgages to the West of England Insurance Company for 85,000, and to Mr. Baker for 5000, were paid off out of the proceeds of the Maindee estate, which was sold, and the residue of the proceeds, amounting to 40,019, 12s. 3d., was paid in the years 1854, 1855 and 1857 to the General Reversionary and Investment Company, who, on the 10th of November 1855, invested 7442, 14s. 10d., part thereof, in the purchase of a Government annuity of 623, Us. upon the life of the Plaintiff. The total amount paid by the company to the Plaintiff upon the three transactions in 1840, 1842 and 1847 was as follows :- 1840. May 22 .... 5,500 0 0 1842. January 15 . . . 5,000 0 0 1847. March 9 .... 1,443 5 (i 11,943 5 6 [290] Besides which, they had bought from third parties judgments to the amount of 4937, 4s. 6d., which were paid off on the occasion of the advance in 1847. The company had received at various times in the years 1851, 1852, 1854, 1855 and 1857 sums amounting to 44,919, 12s. 3d. out of their securities, and claimed at the date of the bill a further balance of 15,575, 17s. 6d. for arrears of the annuity and interest thereon. The Swinnerton estates produced nothing beyond the special mortgages thereon prior to the company's securities, and the other reversionary interests of the Plaintiff fell into possession as follows:-The Maindee estate on the 24th of June 1844, as already stated; the Cefn Mably and Halswell estates on the 22d of November 1860, by the death of Plaintiff's father, and the Tate estate in July 1861, by the death of the survivor of the life tenants. Various suits were instituted by ineurabrancers against the Plaintiff, who never ceased to be in embarrassed circumstances. These were Ford v. Tynte, Ford v. Adams, Jones v. Tynte, Adams v. Tynte, and a suit of Hodge v. Tynte, instituted by the General 476 TYNTE V. HODGE 2H.&M. 291. Reversionary and Investment Company by their officer, Hodge (the Defendant in the present suit of Tynte v. Hodge), to enforce their claims under the securities impeached in the present suit. A receiver was appointed in Ford v. Tynte, and an application for a receiver in Hodge v. Tynte was on that ground refused in another branch of the Court. Subsequently to this all the suits were ordered by the Lords Justices to be transferred to the Court of Vice-Chancellor Wood, in which a decree for accounts ami inquiries had [291] been made in Ford v. Ti/nte, the most advanced suit. A summons was subsequently taken out to obtain the direction of the Judge as to the mode of prosecuting the suits, and was adjourned into Court; and on the 16th of February 18C1 a decree was made in all the suits (except Janes v. Tynte,, in which proceedings were stayed) directing the inquiries and accounts ordered by the decree in Ford v. Tynte, and certain other inquiries, to be made and taken, appointing a receiver in all the suits except Jones v. Tynte, and authorising him from time to time, as the Judge should direct, to keep down the interest on the incumbrances in the pleadings of these causes mentioned, and the annuity and arrears of annuity granted in favour of the Plaintiffs in Hodf/e v. Tynte, and also any other annuities and rent-charges which should be certified to be charged on the said estates, and further ordering that the Plaintiff, Ford, should have the carriage of the order, and declaring that the Plaintiff's in these suits, and the several Defendants who should be ascertained to be incuinbrancers, were entitled to add their costs of these suits up to the decree to their respective incumbrances, and adjourning further consideration. On the 27th of June 1862 the present bill of Tynte v. Hodge was filed to set aside the annuity transaction, the Plaintiff, Tynte, offering to pay to the Defendants, who represented the General Reversionary and Investment Company, their advances with interest as the Court should direct, or to allow them in account, and also prayed that the Government annuity of 62.'!, Us., and all policies taken out by the company as further security, might be declared to be held in trust for the Plaintiff. The bill also prayed in the alternative that failing such relief the stipulations in the annuity deed of the 9th of March 1847, giving interest on the arrears of the annuity, might be declared void, and that if and so far as [292] necessary the suit might be taken to be supplemental to the other suits. On a motion in this suit that the Plaintiff (who was abroad) should give security for costs, which was heard on the 13th of November 1S62 (2 J. & H. 692), the Vice-Chancellor had intimated his opinion that the annuity deed could not be set aside after the decree already made without a bill of review. The suit, however, was proceeded with. The bill in Tynte v. Beavan was...
To continue reading
Request your trial
-
Benyon v Fitch
...v. Bosher (M'Cleland & Younger, p. 100); Gowland v. De Faria (17 Ves. 20); Earl Aldboroucjh v. Trye (7 01. & Fin. 436); Tynte v. Hodge (2 Hem, & M. 287). [574] Mr. Southgate, in reply, referred to Talbot v. Staniforth (1 John. & H. 484); Chestefield v. Janssen (1 Atk. 340); Baker v. Bent (1......