Walsh v Trevanian

JurisdictionEngland & Wales
CourtCourt of the Queen's Bench
Judgment Date20 June 1850
Date20 June 1850

English Reports Citation: 117 E.R. 636

QUEEN'S BENCH.

Between James Thomas Walsh and the Reverend Alfred Pyne, Plaintiffs, and John Charles Bettesworth Trevanion and Charlotte his Wife, Hugh Charles Trevanion, an Infant, by Charles Thellusson his Guardian, and Others
Defendants
and between The same Plaintiffs, and Edward Coode and Others
Defendants
and Between The same Plaintiffs, and Margaret Rhodes and Others Defendants
and between The same Plaintiffs, and Ann Holcombe and Others
Defendants.

S. C. 19 L. J. Q. B. 458; 14 Jur. 1134: in Equity, 16 Sim. 178; 12 Jur. 344. Discussed and distinguished, Rooke v. Kensington, 1856, 2 K. & J. 763. Referred to, Pallikelagatha Marcar v. Sigg. 1880, L. R. 7 Ind. App. 100. See also Mellor v. Porter, 1883, 25 Ch. D. 159.

[733] between james thomas walsh and the reverend alfred pyne, Plaintiffs, and john charles bettehworth trevaneon and charlotte his Wife, hugh charles trevanion, an Infant, by charles thellusson his Guardian, and others, Defendants; and between the same plaintiffs, and edward coode and others, Defendants; and between the same plaintiffs, and margaret ehodes and others, Defendants; and between the same plaintiffs, and ann holcombe and others, Defendants. Thursday, June 20th, 1850. A. and his eldest son B. had a general power of appointment over estates lying in eight parishes, and, subject thereto, had between them the whole interest. By deeds of appointment and release, dated 19th July 1824, they appointed and conveyed to the Bank of England, by way of mortgage in fee, premises described in the deed, as "all the lands" of A. and B. in the eight parishes (naiuiug them) " which are specified and described in the schedule hereurider written." This schedule specified a part only of the first mentioned estates. Subject to this charge on part, A. and B. retained the entire interest in the whole estates. By deed of appointment and release of 13th June 1827, being the marriage settlement of B., after reciting the creation of the power as extending to the lands thereinafter settled, amongst other hereditaments, and reciting the mortgage of 19th July 1824, and that on the treaty for the marriage it was agreed that such hereditaments subject to the power as were comprised in the mortgage, and the whole of the lady's fortune, should be settled to certain uses, A. and B. appointed that the lauds thereinafter released or expressed so to be should (but subject to the charge thereinbefore mentioned) go to certain uses. And A. and B. also by the same deed conveyed and released to the aarae uses lands described as all the lands of them, A. and B., situate in the eight parishes (naming them), "and which are intended to be specified and described in the schedule hereunder written, but which schedule is not intended to abridge or affect the generality of the description hereinbefore expressed and contained." The uses were, among others, to the use of the sons of the marriage in tail male. The schedule was a precise copy of that annexed to the mortgage deed of 1824. A case was sent from Chancery for the opinion of this Court; and, for the purposes of such case, A. and B. were admitted to have had the legal estate in the premises conveyed by the deed of June 1827. The first tenant in tail under that deed claimed the lands not comprised in the mortgage deed : and the question was, whether those lauds passed by the indenture of 13th June 1827. Held: that no other lands than those comprised in the mortgage passed by that indenture. [S. C. 19 L. J. Q. B. 458; 14 Jur. 1134: in Equity, 16 Sim. 178; L2 Jur. 344. Discussed and distinguished, Rooke v. Kensington, 1856, 2 K. & J. 763. Referred to, Pallikelagatha Marcar v. Sigg, 1880, L. R. 7 Ind. App. 100. See also Mellor v. Porter, 1883, 25 Cb. D. 159.] By order of the Vice Chancellor of England (Sir L. Shadwell) made in the above causes, a case was sent for the opinion of this Court. The material parts of the case were as follows. Previous to the 13th June 1827, the manor of Car-[734]-hais, and divers other manors situate in Cornwall, and divers mesauages, lands, tenements and hereditaments, situate within the said manors and in the several parishes of St. Michael, Carhais, Cuby, Goran, Probus, Veryati, St. Teath, and St. Dennis, in the said county, stood (subject, as to such of the said messuages, lands, tenements, and hereditaments as were comprised in the hereinafter stated indentures of ISth and 19th July 1824 and 15th (a) Reported by H. Davison, Esq. UQ. B. 738. WALSH V. TREVANION 637 July 1825, to the mortgage and further charge created thereby as after mentioned) limited to such uses as John Trevaniou Purnell Bettesworth Trevanion, since deceased, and his eldest son, the above named defendant John Charles Betteaworth Trevanion, should appoint. The case-then set forth the deeds under which the title of the two Trevanions was derived. The course of the argument and judgment renders it unnecessary to atate these at length. It appeared that the power of appointment was created by the deed (see the indenture of November 8th, 1823, p. 736, post) leading the uses of a recovery barring the entail of the estates in November 1823. To these last mentioned deeds two schedules were attached, containing a description of the whole of the estates in the eight parishes above named. Copies of the schedules were attached to and formed part of the case. By indentures of lease and release and appointment [735] of 18th and 19th July 1824, the two Trevaniona appointed and also released premises described in these deeds as "all and singular the measuages, lands, tenements and hereditaments of them the said J, T. P. B. Trevanion and J. C. B. Trevanion, situate and lying within the manor of Carhais, and also within the several parishes of St. Michael, Carhais, Cuby, Goran, Probua, Veryan, St. Teath, and St. Dennis in the said county of Cornwall, which are specified and described in the schedule hereunder written, together with all houses, &c.," to the use of the Governor and Company of the Bank of England in fee, as a mortgage for 15,0001. A copy of the schedule to the last stated indenture formed a third schedule to the case, and might be referred to as part of it. This schedule comprised thirteen parcels, of which the rents were specified, amounting in all to 13901. 9s., being part only of the estates of the two Trevanions. By indenture, bearing date 15th July 1825, the same last mentioned premises were further charged to the bank with 50001. The case, after stating these deeds, proceeded. Shortly before 13th June 1827, a marriage was agreed upon between the said John Charles Bettesworth Trevanion and Charlotte Trelawney. A settlement was made on the marriage of the defendants J. C. B. Trevanion and Charlotte his wife, by indentures of lease and release, dated 12th and 13th June 1827, the latter of which, so far as it is material (a), was as follows. This indenture, made the 13th day of June, &c., between John Trevanion Purnell Bettesworth Trevanion, [736] of, &c., Esq., of the first part, John Charles Bettesworth Trevanion, of, &c., the eldest son and heir apparent of the said John Trevanion Purnell Bettesworth Trevanion, of the second part, Mary Trelawney Brereton the widow, of, &c., of the third part, Charlotte Trelawney, &c., one of the daughters of the said Mary Trelawney Brereton, of the fourth part, William Lewis Salusbury Trelawney, of, &c., and John Hearle Tremayne, of, &c,, of the fifth part, and Harry Brereton Trelawney, of, &o., and John Thomas Fane, of, &c., of the sixth part: whereas, by an indenture of bargain and sale, bearing date 8th November 1823, inrolled, &c. (in the Common Pleas, Michaelmas term 1823), and made or expressed to be made between the said John Trevanion Purnell Bettesworth Trevanion, of the first part, the said John Charles Bettesworth Trevanioti, of the second part, Edward Coode, gentleman, of the third part, and Henry Coode, gentleman, of the fourth part, and of (sic) a common recovery suffered, &c. (in the Common Pleas in the same Michaelmas term), the messuage?, tenements, lands, and other hereditaments hereinafter appointed and granted, released and confirmed, or expressed and intended so to be, with their rights, members and appurtenances, together with other hereditaments, were limited and settled to such uses, &c. as the said John Trevanion Purnell Bettesworth Trevanion and John Charlaa Bettesworth Trevanion by any deed or deeds, &c...

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