Wheatley v Bastow
| Jurisdiction | England & Wales |
| Judgment Date | 02 August 1855 |
| Date | 02 August 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 102
BEFORE THE LORDS JUSTICES.
S. C. 24 L. J. Ch. 727; 1 Jur. (N. S.), 1124; 3 W. R. 540. Discussed, Bolton v. Salmon 1891, 2 Ch. 48.
[261] wheatley v. bastow. Before the Lords Justices. May 7, 8, June 9, 1855. [S. C. 24 L. J. Ch. 727 ; 1 Jur. (N. S.), 1124; 3 W. R. 540. Discussed, Eolton v. Salmon [1891], 2 Ch. 48.] A brother and sister entitled in moieties to a reversionary interest in a fund in Court, mortgaged it to secure a debt of a brother, the sister joining, and being described in the security as a surety for the brother. The mortgagee obtained a stop order, and afterwards on his marriage assigned the mortgage debt to trustees, who however neither obtained a stop order nor gave notice to the sister of the settlement. On a petition of the brother stating that the tenant for life had assigned to him her life interest in his share of the fund, and that he had paid a portion of the mortgage debt, and praying for a transfer of his share of the fund, a solicitor who had acted for the sister and for the mortgagee on the occasion of the mortgage, took upon himself without authority to instruct counsel to appear for the sister and her husband, and also for the mortgagee, who was abroad, and to consent to or not oppose the petition. Upon the hearing of this petition the fund was ordered to be, and was transferred out of Court. Held,- 1. That the mortgagee was not bound or affected by the unauthorized appearance for him. 2. That neither the omission of the trustees to obtain a stop order, nor any of the above circumstances, operated to discharge the liability of the surety's share, but that it continued subject to the payment of the mortgage debt. On the above circumstances appearing in evidence, although the solicitor was not a party, but only a witness in the cause, the Court directed him to be served with notice to shew cause why he should not be struck off the roll. This was an appeal from the decision of Vice-Chancellor Stuart, holding that a reversionary interest of the late Plaintiff, the wife of the present Plaintiff Henry Wheatley, in a fund in Court, which she had while single as a surety mortgaged to 7 DE O. M. & O. Mi. WHEATLEY V. BASTOW 103 secure a debt of her brother, was discharged from the liability created by the mortgage under the following circumstances :- The interest in question arose under the will of John Lloyd, dated the 20th of March 1834, whereby the sum of 9000 3 per cent, consolidated Bank annuities was bequeathed to trustees in trust to pay the dividends of 4000 consols, part thereof to Ann Barratt (Mrs. Wheatley's mother) for her life for her separate use, without power of anticipation, and after her decease in trust to divide the capital of 4000 consols among her children equally. [262] In 1835, soon after the testator's death, the trustees instituted a suit of Morrison v. Jefferies for the administration of his estate, and in that suit the sum of 4000 consols was transferred into Court, and carried over to a separate account, entitled " The Annuity Account of Ann Barratt and her Children." This sum was afterwards reduced, by payment of the legacy duty, to 3589, 15s. 8d. consols. Mrs. Barratt had two children besides Mrs. Wheatley, viz., Thomas Barratt the younger and Ann Barratt. By an indenture, dated the 23d of February 1841, made between Thomas Barratt the younger of the first part, Mrs. Wheatley, by her then name of Hester Barratt, of the second part, Thomas Barratt the elder of the third part, John Collins of the fourth part, and the Defendant William Bastow of the fifth part, after reciting that Thomas Barratt the younger was in want of 1000 to establish himself in business, and that he had, with Hester Barratt, Thomas Barratt the elder and John Collins as his sureties, applied to and requested William Bastow to lend him that sum, which he had agreed to do upon having the repayment of the same with interest secured in manner therein expressed, it was witnessed that, in consideration of the sum of 1000 paid to Thomas Barratt the younger, he and Hester Barratt as his surety assigned unto William Bastow, his executors, administrators and assigns, the one undivided third part or share and all other the parts or shares, to which each of them was entitled under the above-mentioned will, expectant on the decease of Ann Burratt the elder, of and in the above-mentioned sum of consols, upon the trusts therein expressed for securing the repayment by Thomas Barratt the younger and [263] Hester Barratt, or either of them, of the sum of 1000 and interest at 6, 10s. per cent, per annum. On the 5th of March 1841, William Bastow obtained a stop order in the cause of Morrison v. Jefferies. On the 23d of February 1846, William Bastow, previously to and in contemplation of his marriage, executed an indenture of settlement of that date, whereby he assigned the mortgage debt of 1000 and the securities for the same to trustees upon trusts for the benefit of himself and his wife and the issue of the marriage. No stop order was obtained by the trustees of the settlement, nor did they give any notice of it to Mrs. Wheatley before her marriage, or to her or her husband afterwards. In June 1846, she married the Plaintiff Henry Wheatley, but no settlement was executed upon or subsequently to their marriage. On the 28th of November 1846, Mr. Collins, who was the uncle of Mrs. Wheatley, and who had acted as the solicitor of her and her brother, as well as of William Bastow, in the preparation of the mortgage, caused a petition to be presented in the cause of Morrison v. Jefferies, purporting to be that of Thomas Barratt the younger and Ann Barratt the younger, stating that Thomas Barratt the younger had paid William Bastow the sum of 500 in part satisfaction and discharge of the debt of 1000, and stating an indenture of the 18th of November 1846, whereby Mrs. Barratt assigned that life interest in the dividends on the two-third parts or shares to which Thomas Barratt and Ann Barratt the younger would be entitled of the fund in Court to Tho-[264]-mas Barratt and Ann Barratt the younger during the life of Mrs. Barratt, as tenants in common, and praying that the Accountant-General might be directed to sell two-third parts of the fund in Court, and to pay one moiety of the proceeds to each of the Petitioners, and that the interest or dividends of the residue might be paid to Mrs. Barratt for her life, or until further order, and that no part of the said residue after the death of Mrs. Barratt might be transferred or paid to Henry Wheatley and his wife, or any other person, except William Bastow, without notice to him. 104 WHBATLEY V. BASTOW 7 DE 0. M. & a. 268. The petition omitted all mention of Mr. Bastow's marriage settlement. Mr. Collins took upon himself to instruct counsel to appear upon this petition for Mr. Bastow, who was abroad, and also for Mr. and Mrs. Wheatley, and an order was, on the 18th of December 1846, made in the terms of the prayer of the petition, and was expressed to have been made upon hearing counsel for the Petitioners, for the Defendant William Bastow and for Henry Wheatley and his wife. Pursuant to the order of the 18th of December 1846, two-third parts of the sum of the fund in Court were sold out, and the proceeds were received by Mr. Collins, or by him and his partner, as the solicitor or solicitors of the Petitioners. The original bill in the present suit, which was afterwards amended, was filed by Mrs. Wheatley, by a next friend, against Mr. Bastow and the trustees of his marriage settlement, and the persons beneficially interested under it. Mrs. Wheatley having afterwards died, her [265] husband having become her administrator, obtained an order to revive the suit. The amended bill prayed that Mr. Bastow and the persons claiming under his marriage settlement might be declared to be bound by the statement in the petition whereon the order of the 18th of December 1846 was made, that Mr. Barratt had paid Mr. Bastow 500 in part satisfaction and discharge of his debt of 1000 ; and for a declaration that all sums received or retained by Mr. Collins on behalf or for the use of Mr. Bastow, or of the trustees under his marriage settlement, in respect of the same debt or the interest thereof, ought to be considered as received by Mr. Bastow, or by the trustees. The amended bill prayed also for an account of what (if anything) was due to Mr. Bastow, or to the trustees of the settlement, in respect of the debt of 1000 and interest, the Plaintiff Henry Wheatley being willing to pay what (if anything) should be found due. The Defendant Bastow, by his answer, stated that he was never served with a copy of the petition of the 28th of November 1846, and never heard nor had any notice that any such petition had been or was intended to be presented by or in the name of any persons or person until some time after the order of the 18th of December 1846, and the sale and payments thereby directed had been made. He further stated that the allegation contained in the petition that Thomas Barratt had paid the sum of 500 in part satisfaction of the mortgage debt was wholly untrue, and he denied that Mr. Collins had any authority to act for him on the hearing of the petition. Mr. Collins, who was examined as a witness in the cause on behalf of the Plaintiff, stated in his evidence that his firm acted as solicitors for Mr. Bastow in the [266] preparation of the mortgage, and that the witness attended to it personally, and acted as solicitor for Mr. Bastow in all matters which required professional legal assistance ; that he so acted in December 1846; that Mr. Bastow was then on the continent; that the witness was a personal friend of Mr. Bastow, and that when the latter went abroad he left with the witness all his deeds, bills of exchange, shares in railways, and all his papers, as the witness believed, relating to all his...
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