Wheeler against Montefiore, Carroll, and Crooke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 53
IN THE QUEEN'S BENCH
S. C. 1 G. &. & D. 493; 11 L. J. Q. B. 34; 6 Jur. 299. Explained, Doe v. Day, 1842, 2 Q. B. 155. Distinguished, Barker v. Furlong, [1891] 2 Ch. 180.
JOB. 153- WHEELER V. MONTBFIORE 53 [133] wheeler against montefiore, cakroll, and crooke. 1841. By indenture between F. and W., it was recited that F. was indebted to W. in 2721., that it had been agreed between them that F. should execute a mortgage of a certain messuage, with the fixtures, and certain chattels: and it was witnessed that, in pursuance of that agreement, and in consideration of the 2721. so due, and of 5s., F. did grant, bargain, sell and demise to W. the messuage, for a term of years, habendum to W. thenceforth for the term, subject to the proviso thereinafter contained; and also that, for the consideration aforesaid, F. did bargain, sell, assign, transfer, and set over to W. the fixtures and chattels, habendum to W. for hit own absolute use and benefit, subject to the proviso thereinafter contained : provided, and it was thereby agreed, that, if F. should pay the 2721. on the then next 24th June, W. should reconvey ; provided also, and it was thereby further agreed, that, if default of payment should be made on the day aforesaid, it should be lawful for W. to enter upon, receive, and take the rents and profits of the premises, and, if he should think proper, of his sole authority to sell or underlet them, and to sell the fixtures and chattels, and deliver them to the purchaser or tenant; and that W. should stand possessed of the money arising from such sale, and of the rents and profits in the meantime, in trust to discharge the expences of the sale and performance of the trusts and then to pay himself so much as should remain unpaid of the 2721., and W. should afterwards stand possessed of the premises and chattels, and the surplus proceeds, in trust for F. And F. covenanted to pay the 2721., with interest, on the day mentioned, and that, notwithstanding any act, &c., the several premises should remain on the trusts thereinbefore declared as long as any part of the 2721. should continue on that security. F. was in actual possession at the time of executing the indenture, and so remained (the 2721. continuing unpaid) at a day before 24th June, when M. (a third party) broke and entered the messuage, and seized the fixtures and chattels. Held that W. could not recover against M. in trespass quare clausum fregit, for the entry, or for the seizure, laid as aggravation : and that, on a plea that the house, fixtures, and chattels were not the house, &o. of W., W. must be nonsuited. [S. C. 1 G. & D. 493; 11 L. J. Q. B. 34; 6 Jur. 299. Explained, Doe v. Day, 1842, 2 Q. B. 155. Distinguished, Barker v. Furlong, [1891] 2 Ch. 180.] Trespass. The declaration, which contained only one count, charged that the defendants, with force and arms, broke and entered a dwelling house of plaintiff, and forced, broke open, and broke to pieces and damaged divers, to wit ten, doors of plaintiff belonging to the said dwelling houae, and broke to pieces, damaged, and destroyed the walls, floors, &c., and pulled down, seized, and took divers fixtures, goods, chattels, and effects, to wit, &c. (describing certain fixtures and chattels not fixed), of plaintiff, then found and being in and upon the said dwelling house, and carried away the same, and disposed thereof to their own use. Fleas. 1. Not guilty. Issue thereon. [134] 2. That the dwelling house in which, &c., and the doors, &c., and fixtures, goods, chattels, and effects in the declaration mentioned, were not the dwelling house, &g., of plaintiff. Issue thereon. On the trial, before Lord Denman C.J., at the London Sittings after Michaelmas term, 1839, it appeared that the two defendants first named were Sheriff of Middlesex, and tbe other defendant an auctioneer. A writ of fi. fa. had been obtained on a judgment in an action of Thomas and Greene v. Franks, under which the sheriff, on Slth June, 1838, entered and seized the goods, and the defendant Crooke sold them. The plaintiff relied on an indenture of 24th March 1838, between Franks of the one part and the plaintiff of the other...
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