Wilkins v Fry
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1816 |
| Date | 26 February 1816 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 665
HIGH COURT OF CHANCERY
See Levi v. Ayers, 1878, 3 App. Cas. 852. Considered, Ex parte Buxton, 1880, 15 Ch. D. 289.
wilkins v. fry. Rolls. Feb. 6, 8, 13, 26, 1816. [See Levi v. Ayers, 1878, 3 App. Gas. 852. Considered, Ex parte Buxlon, 1880, 15 Ch. D. 289.] One, of two or more assignees of a bankrupt, may sue in equity, without the others joining in the suit. To a suit instituted by assignees on behalf of a bankrupt, in the object of which the creditors have no interest, the assent of the creditors is not necessary under the stat. 5 Geo. 2, c. 30, s. 38. A., lessee of iron-works, &c., subject to payment of rent and performance of covenants, assigns to B. as a security for sums advanced and to be advanced, reserving to himself a mere equity of redemption. A. becomes bankrupt, and his assignees agree to convey to B. the equity of redemption in the demised premises. The assignees have no right to enforce against B. a specific performance of this agreement by accepting an assignment with a covenant for indemnity against payment of the rent and performance of the covenants reserved by the original lease. Bacon, lessee, under several indentures, of iron and coal mines in the counties of Glamorgan and Brecon, with certain rights, powers and privileges, thereto annexed; and also of messuages and premises occupied together with, and in working the same, subject to the payment of rents and performance of covenants ; by indenture of lease, bearing date March the 1st, 1803. made between the said Bacon of the one part, and Bowzer, Overton, and Lionel Oliver, together with Sir Jeremiah Homfray, Simon Oliver, and Ridout, of the other part, granted to them the said parties of the second part, all the said premises, subject to the rents, covenants, and conditions, contained in the said several former inden-[245]~tures ; as to part of the premises, for a term of fifty-five years, if he, Bacon, should so long live : and, as to other parts, for and during the residue of his respective terms therein ; at a rent of 1500 for the first twenty years, and of 1000 for the remainder of the terms. And in the said indenture were contained covenants for payment of the rents, and performance of the covenants reserved and contained in and by the said former indentures : and to indemnify Bacon, his heirs, executors, &c., and the several lessees in the said former indentures, in respect thereof. The several parties to the second part of this indenture, having executed a bond to Bacon in the sum of 20,000 conditioned for payment of the rent and performance of covenants, took possession of the demised premises ; and subsequently, from time to time, procured leases of some adjoining premises, the possession of which was advantageous to them in working the mines, which they continued to work in partnership together till February 1805, when Homfray, Simon Oliver and Ridout withdrew from the partnership ; and, by an indenture of that date, assigned their respective interests therein, viz. Horn fray's to Bowzer, and Oliver'? and Rid m it's to Lionel Oliver ; Bowzer and L. Oliver, at the same time, entering into a bond to Homfray, S. Oliver, imdBidoul, conditioned for payment of all rents, and performance of all covenants to which they were jointly liable by the former bond. After this, the three continuing partners remained jointly interested in the 666 WILKINS V. FRY 1 MER. 216. premises and in the prosecution of the concern, until the month of March 1808, when, having become considerably indebted to Richard Bowzer, it was proposed and agreed, for the purpose of securing to him the said Richard Boiozer the debt [248] then due, and which might thereafter become due to him from Bowzer and Co., that the said leasehold premises, and machinery, &c., thereto belonging, should be assigned to the Defendants, Frys and Irving, as trustees for him, which was accordingly done by indenture, dated the 25th of March 1808. Sometime afterwards, Bowser and Co. having occasion for further advances, they, and also Richard Boiozer, proposed to the Defendants, Frys and Irving, that the said Defendants should lend money and advance bills for their accommodation, and that Richard Boiczer should relinquish his right of priority in the premises, and the said Defendants stand possessed thereof, for securing, in the first place, the repayment of such advances. The Defendants, having acceded to this proposal, made considerable advances accordingly on the faith thereof ; and by indenture dated the 30th of December 1809, indorsed on that of the 25th of March 1808, made between the said Richard Bowzer of the first part, Boiozer and Go. of the second part, and the Defendants of the third part, it was declared and agreed that it should be lawful to the Defendants, their executors, &c., to pay and apply the monies to be received by them in pursuance of the trusts of the former indenture, in the first place, in paying, retaining, and satisfying to themselves all sums thereafter to become due to them from Bou'zer and Go. and (subject thereto) to be possessed of the premises for better securing to Ricliard Boiozer the sums intended to bo secured to him by that former indenture. In the meanwhile, subsequently to the assignment of February 1805, Boiczer and Co. took leases of adjoining premises, which they held together with those [247] where the business had previously been carried on, and, becoming further indebted to the Defendants, Frys and Irving, by reason of advances afterwards made, by indenture dated the 15th of February 1811, executed to the said defendants an assignment of all the last-mentioned premises, by way of additional security, upon the trusts of the former indenture. In the month of July 1812, Bowzer and Co. stopped payment, and the Defendants Frys and Irving, " in order to prevent the stopping of the works, and to enable them to sell the same to better advantage," entered into possession, and continued to carry on the same. On the 14th of September 1812, a commission of Bankrupt issued against Bowzer and Go. ; and the Plaintiff Wilkins, and the Defendants Tappenden and Givynn, were chosen Assignees. After the Bankruptcy, Frys and Irving being then creditors to the amount of 60,000, entered into a treaty with the Assignees for the purchase of the entire interest of the Bankrupts in the premises ; and, by an agreement reduced to writing, and dated'the 12th of November 1812 (which was afterwards confirmed by a resolution of the creditors), the Assignees agreed to sell to Frys and Irving all their right, title, interest, .and equity of redemption, in and to the said premises, and all moveable and fixed property, and stock in trade, of the Bankrupts, and all outstanding debts owing to them at the time of their bankruptcy (except separate property), for 8000 over and above the dividends to which they would be entitled as thereinafter mentioned. The Assignees further agreed to execute such deeds as should bo required by the purchasers for carrying the [248] sale mto effect, arid to consent, to an order of the Chancellor, upon petition, to confirm such purchase, if required. Frys and Irving agreed to purchase as aforesaid, and to pay the purchase-money by 4000 on the llth of May, and the remaining 4000 on the llth of November 1813 ; also, to relinquish their claim to all dividends upon the debts then due to their firm, and on those which they might be entitled to prove, as well as all right to prove any debts due to their firm, and to accept the said property and effects in full satisfaction of all claims upon the estate of the Bankrupts, and to assign or abandon all dividends upon such debts to the Assignees, if required. It was further agreed, that Frys and Irving should be at liberty to use the names of the Assignees in any action or suit respecting the purchased property, they indemnifying the Assignees against the costs and consequences of all such suits and actions. This Agreement was afterwards confirmed by a resolution of creditors, and also by an order in the bankruptcy, obtained at the instance of the Defendants Frys 1MEE. 249. WILKINS V. FRY 667 and Irving. No assignment was ever executed in pursuance of it ; and the Bill, filed by one of the Assignees under the commission against the Defendants Frys and Irving, and his (the Plaintiffs) Co-assignees, charging that, at the time of entering into the agreement, the first named Defendants had notice that there were large rents reserved, and very material covenants to be observed, on the part of the lessees arid other persons holding the premises, and that they had taken from the purchasers of parts of the premises (which they had sold since entering into the above agreement), covenants of indemnity against those rents and covenants, prayed a specific performance of the agreement, together with a declaration " that the Defendants are [249] under the said agreement bound, and ought to accept an assignment of the premises, to contain all usual and...
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