Wearing v Ellis
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1856 |
| Date | 19 November 1856 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 1365
BEFORE THE LORD CHANCELLOR LORD CRANWORTH.
S. C. 25 L. J. Ch. 248. See Martin v. Powning, 1869, L. R. 4 Ch. 369; Motion v. Moojen, 1872, L. R. 14 Eq. 208; Luddy's Trustee v. Peard, 1886,, 33 Ch. D. 521.
[596] wearing v. ellis. Before the Lord Chancellor Lord Cranworth. Nov. 14, 17, 19, 1856. [S. C. 25 L. J. Ch. 248. See Martin v. Pawning, 1869, L. R. 4 Ch. 369; Motion v. Moojen, 1872, L. R. 14 Eq. 208 ; Iwldifs Trustee v. Peard, 1886, 33 Ch. D. 521.] The devisee of an insolvent debtor who had taken the benefit of the Act 5 & 6 Viet, c. 116, and who had obtained a release in full from all his creditors: Held, entitled to sustain a bill in equity in respect of surplus real property, which had been conveyed by the official assignee, without going through the process of applying to the Insolvent Court for an order re-vesting the property in the assignee of the insolvent. The bill in this suit was filed by J. Wearing the devisee of John Harrison an insolvent for the purpose of obtaining a reconveyance of certain real estate which had once belonged to the insolvent under the following circumstances. John Harrison became insolvent in February 1843, and filed his petition in the Leeds District Court of Bankruptcy for protection as an insolvent debtor under the Act 5 & 6 Viet. c. 116, and the usual order was thereupon made vesting his estates and effects real and personal in E. Young as the official assignee. At the time of the insolvency J. Harrison was entitled to certain real estate in fee-simple in reversion expectant on the death of his mother. In 1844 all the creditors of J. Harrison accepted a composition of 3s. 6d. in the 1366 WEARING V. ELLIS 6DE 0. M. & 0. 597. pound and executed a release in full. The sum required for the composition was advanced by the Plaintiff with the aid of J. Cowburn a solicitor. In 1846 and in consideration of that advance and before the reversionary interest fell into possession the official assignee arranged with the Plaintiff that the reversionary interest should be conveyed by the official assignee to the Plaintiff as a security for his advance and subject thereto for the insolvent J. Harrison. This conveyance (whether by accident or otherwise is immaterial for the purposes on which the decision in this case is reported) was made to J. Cowburn instead of to the Plaintiff. In the following year (1847) the reversionary interest [597] fell into possession and J. Harrison then entered into possession and enjoyed the premises during his life. He died in 1849 and devised the estate to the Plaintiff. In 1854 a question was raised on the part of Cowburn that he was bond fide and beneficially entitled to the estate but he subsequently became insolvent; and his assignee put up the property for sale when the Defendant Ellis became the purchaser. The object of the bill, which inter alia charged that all the creditors of J. Harrison were satisfied and had executed a release, was to obtain a declaration that by the conveyance of 1846 Cowburn was not entitled to any beneficial interest in the premises but was a trustee of the legal estate in trust for J. Harrison. The Defendant insisted that until an order had been obtained from the Insolvent Court re-vesting the estate in Harrison the Plaintiff as his devisee had no title to sue. The question came on before the Vice-Chancellor Stuart on the 16th January 1856 on motion for a decree when His Honour held that there being an admitted surplus there was a virtual end of the insolvency and decided in favour of the Plaintiff's right to sustain the bill. From that decree the Defendant now appealed to the Lord Chancellor. Mr. Wigram and Mr. Toller for the Plaintiff in support of the decree of the Vice-Chancellor. The question is what is the status of an insolvent debtor after all his debts are paid 1 We will admit for the purpose of the argument that when the property remains in the official assignee it would be necessary to get the estate re-vested in the insolvent, yet where as in the present case the official assignee has duly devested himself of the legal estate for value and conveyed his right and interest therein it is absurd to obtain a re-vesting order. In the [698] authorities which will be relied on of Kernot v. Pitt-ix (2 Ellis & Bl. 406), Rochfort v. Baitersby (2 H. L. Cas. 388), and Tudway v. Jon-en (1 K. & J. 691), there was no evidence to shew that the debts of the insolvent were all paid and in each of those cases the proceedings in insolvency were in full force, which distinguishes them from the present case. Here the jurisdiction in insolvency was at an end. Having regard to this distinction where a bill was filed by a bankrupt and contained an allegation that all the debts were paid a demurrer was overruled, Lautour v. Holcombe (8 Sim. 76). It is also to be observed that the insolvency in the present case is not under the 1 & 2 Viet. c. 110 but under the 5 & 6 Viet. c. 116 the first section of which referring to adopts the provisions of the 6 Geo. 4, e. 16, and by the 132d section of that Act the assignees are...
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Adams v Sworder
...estate which would revest in him; Gresley v. Mmtsley (4 De G. & J. 78); Stump v. Gaby (2 De G. M. & G. 623); Wearing v. Ellis, (6 De G. M. & G. 596); Banks v. Scott (5 Madd. 493). The saving in the order cannot have the effect of ratifying any transaction which the assignees could have set ......
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Troup v Richardo
...BICAHDO 1011 That accordingly has been the current of decision, of which there is abundant evidence in the case of Wearing v. Ellis (6 De G. M. & G. 596)-if indeed a case were required to illustrate principles so plain that they must, when stated, be admitted to be the guide of this Court b......