1853. EVANS v. JONES. Argument. levy a fine, and to levy it accordingly. That would be expressed to be in order to vest the fee in the mortgagee. If the fine were not levied, the Court could not have effected that intention against the issue in tail claiming, as he would, as a purchaser. Substitute now a conveyance under the new Act, the requisites are the consent of the protector, as the father in this case thought himself to be, and enrolment. If you attribute to these ceremonies such an operative power as to pass the fee simple in one estate tail, though the expressed intention is to bar a different entail, you give a larger effect to the disentailing deed than you could possibly have given to the fine. [The VICE-CHANCELLOR.-Suppose the father and the son had both covenanted to levy a fine, and levied it, with this mistaken view of their rights.] The father, believing himself to be tenant for life, would never join in the covenant or fine. George David Evans claims per formam doni under the original limitation in the will; and the intention of the parties to the deed of September, 1843, cannot affect him, unless it is carried out strictly in the mode which the law directs. But this is not a proper suit in which to discuss this question. The suit is between mortgagor and mortgagee, and George David Evans claims the Eglwswrw estate by a paramount title. The reply was not called for. Julgment. VICE-CHANCELLOR SIR W. PAGE WOOD: The question in this case is upon the effect of this deed. Looking at the whole deed there can be no doubt of the construction which the Court will put upon it. An estate tail was limited by will to Caleb Evans. By a settlement in 1813, when his eldest son Benjamin Evans was about to marry, Caleb Evans, not having barred the entail, and having other estates in fee simple, conveyed both upon the trusts of that settlement, which gave a life interest to Benjamin Evans, with remainder to Benjamin Griffith Evans and the heirs of his body; and no one adverted to the fact that nothing would pass with reference to the estate tail in Caleb, which accordingly descended to Benjamin. The deed of 1843 commences with a recital of the settlement of 1813 as an existing settlement, and recites that Benjamin holds the whole property for life; whereas, in truth, as to part of it, he was tenant in tail, and tenant for life of the other and larger portion. The deed then recites that Benjamin Griffith Evans was tenant in tail in remainder subject to his father's life interest; and it proceeds to recite that a debt of 1200l. had been contracted by the father, and that he had been called upon. to pay the same; and that Benjamin Evans had applied to Jane Martha Jones, who had agreed to pay the 12001. for him in consideration of Benjamin Griffith Evans joining in that deed, which he had also agreed to do. Two things were therefore agreed: one by Jane Martha Jones in consideration of having a perfect conveyance made to her of the whole property, and another agreement by Benjamin Griffith Evans to concur, which was in consideration of his having a fee simple limited to him instead of an estate tail. No doubt, if this were the simple point of a person reciting that he was entitled for life, whereas he was in fact tenant in tail, and purporting to join in a family arrangement, with no consideration for such concurrence, there might be a difficulty in holding, that, it being apparent on the face of the instrument that the party had been acting on a mistaken view of his rights, although the words used were large enough to carry the whole interest, he would not be in a position to say that the recitals must be looked at to see what he intended to convey. But the case of a purchaser is very different. In 1853. EVANS v. JONES, Judgment. 1853. EVANS v. JONES. Judgment. this deed Benjamin Evans represents to Jane Martha Jones, who is the mortgagee, that the exact state of the title is that he is tenant for life with remainder to his son in tail. I think that Benjamin Evans cannot now be heard to say, I was mistaken in that representation; I was only in reality holding as tenant in tail a portion of this land, and therefore that estate has not passed." The question then is, can Benjamin Evans be heard to say this against Benjamin Griffith Evans, to whom a like representation was made. Benjamin Evans received a consideration from him also. Benjamin Griffith Evans might have waited until his father's death, in which case the estate tail in Eglwswrw, if he survived his father, would have come to him free from his father's incumbrances, subject of course to the chance of his father barring the entail in this part of the property. In the remaining portion, Vrochest, Benjamin Griffith Evans had an estate limited to himself. But I think that the intention expressed in this deed of 1843, is to convey all the interest in this property to the mortgagee. It is worded thus: "in order to convey and assure the inheritance in fee simple of and in the same hereditaments unto the said Thomas Morgan, his heirs and assigns, to the uses hereinafter declared; and also for and in consideration of the sum of 1200l. paid to the said George David Griffith by the said Jane Martha Jones at the request of Benjamin Evans and Benjamin Griffith Evans." All parties for this purpose join, and Benjamin Evans and Benjamin Griffith Evans together grant and release all their estate and interest in the premises. These words are large enough to include the estate tail of Benjamin Evans in Eglwswrw. It cannot, however, be said that Benjamin Evans could only have joined for the purpose of conveying this estate, for he had an equity of redemption of his life estate in part of the premises, and a grant from him might be necessary to pass his equity of redemption. The fact of his making a grant, therefore, does not prove any thing as to the purpose. It comes, then, to this question, the words of the deed being sufficient to pass all the interest of the parties, and the deed, when enrolled, having the effect of barring estates tail, can Benjamin Evans be heard to say that this deed did not pass all the interest in Eglwswrw that he had power to convey? If it did, it is true that the interest of the remainderman, who does not claim under him, has also been defeated by the deed; but, unless I am to assume a contrary intention from the recitals, I think the deed must have this operation. I am of opinion that I cannot make such an assumption. There being a paramount intention to vest the whole interest, whatever it might be, in Thomas Morgan for the benefit of Jane Martha Jones, to secure her mortgage debt and interest, and to limit the ul. timate remainder to Benjamin Griffith Evans in fee, in consideration of his joining in the conveyance and making the debt of his father a charge upon his estate, that paramount intention is sufficient to support the effect which the words are large enough to produce, of carrying the whole estate in fee simple in Eglwswrw as well as in Vrochest; and therefore I must decide that it passed by the deed just as though a recovery had been suffered before 1813. Mr. Dickinson has observed, truly enough, that a party is thus brought here to try a legal right in consequence of another person redeeming a mortgage; but the position of things is that there is an outstanding term of years, the Plaintiff is obliged to come here to redeem the mortgage, the mortgagee wants to foreclose the mortgage against every one claiming an interest in the equity of redemption, and thus any one claiming an interest becomes a necessary party to the suit. Under the old practice the Court would, on very little pressure, have sent the case for decision to a Court of law. I do not regret that I am precluded by statute from taking that course, because I do not feel much difficulty about my decision. 1853. EVANS v. JONES. Judgment. 1853. Nov. 10th. PHILLIPS v. PHILLIPS (a). Advancement- SARAH PHILLIPS, by her will, dated the 8th of De Married Woman. A legacy being left upon trust for the separate use of a married her life, with woman during out power of anticipation, and, after her decease, for her children, with power to the trustees to advance 1000l., part thereof, to place her in any trade, business, profession, or employment, or otherwise, or for her preferment cember, 1841, bequeathed to her brother Joseph Phillips, and her friends John Arnold, Richard Wood, and John Arnold the younger, the sum of 10,000l., upon trust to invest as therein mentioned, and to pay the interest, dividends, and proceeds thereof unto and equally between and amongst the children of her late brother William Phillips and Jane his wife, namely, William Charles, Susannah, and Joseph Phillips, share and share alike, for and during the term of their natural lives, and to pay her one-third part or share into the proper hands of the said Susannah Phillips for her separate use for life, without power of anticipation; and from and after the decease of either of her said nephews or niece, then, upon trust, that the said trustees and the survivor of them, his executors or administrators, should stand possessed of one-third part of the said sum of 10,000l., in trust for the child or children of any of such deceased nephews or niece, and pay the interest and dividends arising therefrom for the support and maintenance of such issue during their minority; and when and so soon as they should attain the age of petition of her- twenty-one years, then upon trust to call in one equal third part of the said sum of 10,000l., and pay and apply the same unto and equally between and amongst all and every the child or children of such deceased nephews or niece, share and share alike, and if but one child, then the whole to such one only child, when and so soon as they should severally and respectively attain his, her, or their age or respective ages of twenty-one years. But in or advancement in the world; and this legacy having been transferred into Court in this cause to the ac count of the legatee and her children, the Court, on the self and her husband, ad vanced to her 10007., to be employed with another 1000Z. belonging to the husband in es tablishing him in an advan tageous partnership with two other persons, in a lucra tive business with which he had been connected for thirteen years, upon his effecting an insurance upon his own life in the names of two trustees appointed by the Court, to be held by them upon the trusts of the said legacy, and also entering into a bond in a proper penalty to the same trustees, to secure the due payment of the premiums upon such policy of insurance. (a) Ex relatione Mr. Bagshawe. |