Ware v Lord Egmont

JurisdictionEngland & Wales
Judgment Date15 November 1854
Date15 November 1854
CourtHigh Court of Chancery

English Reports Citation: 43 E.R. 586

BEFORE THE LORD CHANCELLOR LORD CRANWORTH.

Ware
and
Lord Egmont

S. C. 24 L. J. Ch. 361; 1 Jur. N. S. 97; 3 Eq. Rep. 1; 3 W. R. 48. See Macbryde v. Eykyn, 1871, 24 L. T. 464; 25 L. T. 192; Cavander v. Bulteel, 1873, L. R. 9 Ch. 81, n.; Banco de Lima v. Anglo-Peruvian Bank, 1878, 8 Ch. D. 175; In re A, W. Hall & Co., 1887, 37 Ch. D. 720; English and Scottish Mercantile Investment Trust v. Brunton [1892], 2 Q. B. 10; In re New Chile Gold Mining Company Limited, 1892, 68 L. T. 16; In re White & Smith's Contract [1896], 1 Ch. 642.

[460] ware v. lord egmont. Before the Lord Chancellor Lord Cran worth. Nov. 2, 4, 15, 1854. [S. C. 24 L. J. Ch. 361; 1 Jur. N. S. 97; 3 Eq. Rep. 1; 3 W. R. 48. See Macbryde v. Eykyn, 1871, 24 L. T. 464; 25 L. T. 192; Cavander v. Bulteel, 1873, L. R. 9 Ch. 81, n.; Banco de Lima v. Anglo-Peruvian Bank, 1878, 8 Ch. D. 175; In re A, W. Hall & Co., 1887, 37 Ch. D. 720; English and Scottish Mercantile Investment Trust v. Brunton [1892], 2 Q. B. 10; In re New Chile Gold Mining Company Limited, 1892, 68 L. T. 16; In re White & Smith's Contract [1896], 1 Ch. 642.] The question, when it is sought to affect a purchaser with constructive notice, is not whether he had the means of obtaining, and might, by prudent caution, have 4DEO. M. &Q. a. WARE V. LORD EGMONT 587 obtained, the knowledge in question, but whether the not obtaining it was an act of gross or culpable negligence. 'The abstract of title of real estate disclosed the fact that the land tax had been redeemed thirty-three years previously to the sale by persons acting as the guardians of an infant tenant in tail, out of the personal estate of the infant, who died a bachelor without having attained his majority; and, in a suit instituted shortly afterwards by the personal representatives of the infant against the then tenant in tail in remainder, a decree was made declaring them entitled to charge the estate with an amount equal to the consideration money paid for the redemption. A deed was prepared for the purpose of charging the estate accordingly, which was duly executed by the then tenant in tail in remainder, but he died without having suffered a recovery. The succeeding tenant in tail entered, suffered & recovery, and sold the estate to a purchaser for valuable consideration, who had no express notice of the facts above stated. Held, on a bill filed by the administrator de bonis non of the infant tenant in tail against the purchaser, that the omission on his part to inquire whether the redemption of the land tax might not have been so effected as to have given to third persons equitable rights, of vvhich there was no trace on the face of the abstract, did riot amount to gross negligence, and that he ought not therefore to be affected with constructive notice of such equitable rights. This was an appeal by the Defendants, the trustees and executors of Lord Arden, irom a decree of the Vice-Chancellor Stuart, who declared that the Defendants, as representing the purchaser of certain real estate, were affected with constructive notice that the land tax had been redeemed by means of funds belonging to an infant tenant in tail of the estate, who died in infancy, and that the circumstances of the case were such as to give to the representatives of the infant an equitable right to a rent-charge equal to the land tax redeemed. So much of the fact, as will suffice to render the report intelligible, is extracted from the Lord Chancellor's judgment. In 1782, Nathaniel Polhill was equitable owner in fee of the lands in question. He had contracted to purchase them, but they had not been conveyed to him. By his will dated the 14th of June 1782, he devised all his real estate, which included his equitable interest in the lands in question, to his son Nathaniel for life, with remainder to his first and other sons in tail, with remainder to his son John for his life, with remainder to his first and other sons in tail with several remainders over. [461] Soon after the date of his will he died, and his son Nathaniel became tenant for life in possession. He, however, lived only a few weeks after his father's death. He died on the 30th of November 1782, leaving an only son Nathaniel, then sixteen months old, who thus became equitable tenant in tail in possession. In July 1783, the legal estate was duly conveyed to two gentlemen, Benjamin Way and Thomas Maitland (who had been named in the will of 1782, as trustees to preserve contingent remainders), and their heirs to the uses of the will, so that the infant thus acquired the legal estate as tenant in tail. These two gentlemen were apparently friends of the family ; for, though they had no legal authority, they entered on the infant's lands and received the rents as his guardians. The rents thus accumulated in their hands amounted to a large sum, and in 1799, the year after the passing of the first Land Tax Redemption Act, they took on themselves to apply a portion of the money thus accumulated, in redeeming the land tax on all the infant's property, which was situated in four several counties. The land tax charged on the Surrey property now in question was .55, and the sum of 2016 3 per cents., which was the consideration for the redemption, was purchased by means of the accumulated rents. The infant tenant in tail died a bachelor in the spring of 1802, just two months before he would have attained his age of twenty-one years ; and on his death John Polhill, the testator's second son, became entitled as tenant for life, and he entered and took possession accordingly. John Polhill had issue several children, of whom Thomas Polhill was his eldest and Frederic Polhill his second son. After the death of Nathaniel Polhill the infant, Ursula [462] his mother, who had married James Ware, took out administration to her sou, and in 1804 she and her 588 WARE V. LORD EGMONT 4 DB O. M. & 0. 3. husband filed a bill in this Court against John Polhill and Thomas Polhill who...

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    ....... . 11 Sir Edward Sugden (later Lord St. Leonards) summed up the pre-1882 approach of the Chancery judges to the question of ... of the doctrine of constructive notice before the Act of 1882 is that of Lord Cranworth in Ware v. LordEgmont (1854) 4 De G McN&G 473: "Where a person has actual notice of any matter ... negligence in this passage (he was referring to what Lord Cranworth had said in Ware v Lord Egmont (1854) 4 De G McN&G 473) does notimport any breach of a legal duty for a purchaser of property is ......
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    ...They referred to Doe v. Simpson (5 East, 162) ; Robinson v. Grey (9 East, 1); Cooke v. Blake (1 Exch. 220); Ware v. Lord Egmont (4 De G. M. & G. 460); Finch v. Shaw (19 Beav. 500; 5 H. of L. Ca. 905); Brotherton v. Hill (2 Vern. 574); Jennings v. Moore (2 Vern. 609); Le Neve v. Le Neve (3 A......
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    ...the rights of other parties, but whether there was gross and culpable negligence on the part of the purchasers; Ware v. Lord Egmont (4 De G. M. & G. 460). If the Defendants be purchasers for valuable consideration without notice, this Court will not interfere against them, Attorney-General ......
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