Tyrwhitt v Tyrwhitt
| Jurisdiction | England & Wales |
| Judgment Date | 23 February 1863 |
| Date | 23 February 1863 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 96
ROLLS COURT
S. C. 32 L. J. Ch. 553; 8 L. T. 140; 9 Jur. (N. S.) 346; 11 W. R. 409; 1 N. R. 458.
[244] tyrwhitt v. tyrwhitt. Feb. 11, 23, 1863. [S. C. 32 L. J. Ch. 553; 8 L. T. 140; 9 Jur. (N. S.) 346; 11 W. R. 409; 1 N. R. 458.] Where a charge on an estate becomes vested absolutely in the owner of the inheritance of the estate, the three tests usually applied for ascertaining whether the charge has merged are:-First, whether there has been an actual expression of intention to that effect; secondly, whether the acts done by the owner of the estate are only consistent with the charge being kept on foot; and thirdly, whether it is for the interest of the owner that the charge should not merge in the inheritance. As to the effect of an expression of intention, on the part of the owner of the inheritance of an estate, as to the merger of :a charge thereon, made previous to his becoming absolute owner of the charge. A fund, which was held in trust for A. for life, with remainder to B. absolutely, was lent by the trustees (B. and C.) to B., on mortgage of his fee-simple estates. By the mortgage deed, the trustees declared that they would hold the fund, after the decease of A., for " B., his executors, administrators and assigns, for his and their absolute benefit." B. survived A. and died. Held, that this was not a sufficient indication of a contrary intention to prevent the merger of the charge in the inheritance. The question in this case was, whether a sum of 4200 charged on fee-simple estates of Sir Tyrwhitt Jones had become merged, in consequence of Sir Tyrwhitt Jones having become the absolute owner of that sum. It arose under the following circumstances:- In 1818 Harriet Emma Jones married Mr. Mytton. She was entitled to a portion of 10,000, part of which was settled on her marriage by a deed dated the 20th of May 1818. By this deed, the sum of 9200 (part of the 10,000) was assigned to her brother Sir Tyrwhitt Jones and John Arthur Lloyd, upon trust for Harriet [245] Emma Jones for life, with remainder to Mr. Mytton for life, and after the death of (1) Penny v. Turner, 2 Phill. 493; Fordyce v. Bridges, 2 Phill. 512; Prendergast v. Prendergast, 3 H. of L. Gas. 223; tie JHiite's Trusts, John. G56. MBEAV.M4. TYBWHITT V. TYRWHITT 97 the survivor, as to 5000 (part of it) on certain trusts for the children of the marriage ; and as to the residue (4200), in case Harriet Emma Jones should predecease Mr. Mytton (which happened), upon such trusts as she should by deed or will appoint. There was issue of the marriage one child only, viz., Harriet Emma Charlotte Mytton. Mrs. Mytton by her will appointed the 4200 to her brother Sir Tyrwhitt Jones absolutely, and she died in July 1820. In 1827 the 9200 was realised and lent to Sir Tyrwhitt Jones upon a mortgage of his fee-simple estate at Atchain in the county of Salop. Accordingly, by au indenture dated the 2d of August 1827, and made between Sir Tyrwhitt Jones of the first part, Mr. Mytton of the second part, and J. A. Lloyd and Sir Tyrwhitt Jones (as trustees) of the third part, Sir Tyrwhitt Jones conveyed the estate at Atcham in the county of Salop to J. A. Lloyd and his heirs, subject to redemption on payment by...
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