Williams v owen
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1840 |
| Date | 23 November 1840 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 386
HIGH COURT OF CHANCERY
S. C. 10 Sim. 386; 9 L. J. Ch. (N. S.), 70; 3 Jur (O. S.), 1186; 12 L. J. Ch. 207; 5 Jur. (O. S.), 114. See Dawson v. Bank of Whitehaven, 1877, 4 Ch. D. 649. Not followed, Forbes v. Jackson, 1882, 19 Ch. D. 616.
williams v. owen. April 27, Nov. 23, 1840. [3. C. 10 Sim. 386; 9 L. J. Ch. (N. S.), 70; 3 Jur. (0. S.), 1186; 12 L. J. Ch. 207 ; 5 Jur. (O. S.), 1H. See Dawsrni v. Bank of JHiitehaven, 1877, 4 Ch. D. 649. Not followed, Forbes v. Jackson, 1882, 19 Ch. D. 616.] A conveyance, as upon an absolute sale, accompanied by a contemporaneous agreement for reconveyance, upon payment, on a day certain, of the purchase-money, with interest, and of the expenses of the present conveyance, which had been paid by the purchaser. Held, on a bill for redemption, brought after the day certain had passed, to have been a sale, with a proviso for repurchase, and not a mortgage. This was an appeal from a decree made by the Vice-Chancellor of England. The facts of the case are stated in the tenth volume of Mr. Himons's .Reports, p. 386 and seq. They are also fully detailed in the Lord Chancellor's judgment. The question was, whether a conveyance by the Plaintiff's father to the Defendant, in the year 1821, was to be considered as having been a mortgage, as contended by the Plaintiff, or as having been a sale, with a right of repurchase at a given day, long since passed, as contended by the Defendant. The cause was argued, on the appeal, by Mr. Wakefield and Mr. Koe, for the Plaintiff, and by Mr. Richards and Mr. Cockerell, for the Defendant. The authorities referred to were those which are mentioned in the report of the hearing in the Court below. [304] Nm . 23. the lord chancellor [Cottenham]. In 1821 the Plaintiff's father, Richard Williams, was absolutely entitled to the property in question, and he was, at that time, indebted to the Defendant in 200, which, from a passage read from the answer, is proved to have been secured by the bond of the Plaintiff's father and a surety. By indenture of the 14th of June 1821, reciting that Richard Williams had contracted and agreed with the Defendant for the absolute sale to him of the premises, at or for the price or sum of 550, such premises were absolutely conveyed -to the Defendant, with a covenant for peaceable possession and enjoyment, and other covenants used in conveyances to purchasers. It is made part of the Plaintiff's case that this conveyance was prepared by the Defendant's attorney, and at his instructions. This would prove nothing, except in aid of a case of fraud, if any such case had been attempted; and the Plaintiff, to prove this, produced the bill of costs for this conveyance, which appears not only to have been made out to the Defendant, but to have been paid by him. On the same date as this conveyance, that is, the 14th of June 1821, an agreement was made and signed between the Defendant and Richard Williams, which recited the conveyance, describing it as an absolute conveyance, and that, upon the treaty for the sale of the hereditaments and premises, it was mutually agreed that, in case Williams should pay to the Defendant the like sum of 550 within twelve months, and 13 the expense of the conveyance, that then, and in such case, the Defendant would reconvey the premises to Williams ; and it provided that upon such payment Owen would reconvey the premises to Williams, or consent to the conveyance being cancelled and made void to all in-[305]-tents and purposes; and that Owen should retain the rents from that day to the day of payment of the sum of 550, instead of interest, provided he preferred the same to lawful interest. It was also agreed that the rent should be apportioned from the 4th of August then next, and received, from that day, by Owen ; and Owen engaged that, if the sum of 550 was paid on or before 8 MY. & CB. SOS. WILLIAMS ('. OWKN 387 the 4th of August 1822, the conveyance should be cancelled and the premises reconveyed. The Plaintiff did not go into any evidence as to the value of the property; but, on the part of the Defendant, John Lloyd, a surveyor and builder, and Robert Williams, a land valuer, deposed that the buildings consisted of eight small cottages, occupied by labourers, and that the rent, in 1821, was 50 per annum, subject to repairs and loss of rent, and the value 548. I pay very little attention to this evidence; the deed of the 14th of June 1821 recites Richard Williams's purchase, by which it appears that, in 1812, he bought the property for 330, and afterwards built eight dwelling-houses upon it, but which, by the evidence, appear to have been only labourers' cottages. It is clear...
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