DENYS v. SHUCK- March 5. [ *52 ] Supposing we are wrong on the question of adverse possession, still the Statute of Limitations applies. Mr. Simpkinson, in reply: The plaintiff has a right to an account, both on grounds of general equity and on the statute of Anne (1). Here it is impossible to say there was any ouster, or any holding equivalent to ouster. (ALDERSON, B.: I do not see how there can be any ouster while the tenants in common are in possession. If one takes more than his share of the rents, that is the subject of account.) Then the only question is as to time; and that is not affected by the stat. 3 & 4 Will. IV. c. 27. ALDERSON, B.: I took time to consider this case, intimating, *however, at the hearing, that I thought some account must be directed to be taken, and that the only question was, from what period such account should commence. Upon full consideration, I adhere to that opinion. It seems to me quite clear, that Lady Charlotte Denys, against whose personal representatives this bill has been filed, took an interest under the conveyance of 1813, which expired as to one-fourth of the mines. in question, upon the death of her brother, Earl George; and that she, notwithstanding, continued to receive the profits arising both from that one-fourth which she held in her own right, and the one-fourth the interest in which had thus ceased; while, on the contrary, the plaintiff, Sir George Denys, continued to receive, as before, the profits arising from one-fourth, being all the while entitled to those of the one-fourth which his mother was receiving. All this was done bonâ fide without any fraud, and I think without any arrangement between them, under a misapprehension of their respective rights. It is said, that this was an adverse possession of the one-fourth share by Lady Charlotte; but I do not think that it was so, unless it can be contended that every tenant in common receiving more than his share, must be considered as in adverse possession of the surplus so received by him. This cannot be maintained with propriety; and this is only that case. Both Lady Charlotte and the plaintiff had a right to receive, and did during all the time receive, a share in these rents and profits, as tenants in common. Then this seems to me to fall expressly (1) 8 Ann. c. 14. within the statute of Anne, which gives in such cases an action of account against the co-tenant in common who has received more than his share. And I apprehend, that where an action of account will lie, a bill for an account may be sustained. I am, therefore, of opinion that the plaintiff is entitled to an account, and I shall now proceed to consider from what time such account ought to go. The plaintiff contends, that he has established that this receipt has been by mistake of fact, and that this is on the same footing as fraud, and prevents the operation, if made out, of the Statute of Limitations; which in equity is adopted as a guide, but is not at law binding on the Court. I agree in that conclusion, if the circumstances of the case warrant it. But here, it seems to me, that the plaintiff had the means, with proper diligence, of removing the misapprehension of fact under which I think he did labour. He had in his power the deed on which the question turns; and, although it is perhaps rather obscurely worded, still I think he has allowed. too much time to elapse not to be fairly considered as guilty of some negligence; and a court of equity, unless the mistake be clear, and the party be without blame or neglect in not having discovered it earlier, ought, in the exercise of a sound discretion, to adopt the rule given by the statute law as its guide. That is what I shall do here. At law, Sir George Denys would be barred from recovering all sums received more than six years before filing his bill, had he not been absent from England, and within one of the exceptions of the statute. But he went abroad, and so continued from 1832 to the death of Lady Charlotte. I think, therefore, that the account must go as far back as his departure from England, and that the Master should take an account of all sums received after that time by Lady Charlotte. It appears from the facts of the case, that the mode of taking the profits was by assigning certain portions of the lead to the respective tenants in common. From the moment each tenant in common took possession of their respective shares, the receipt of the rents seems to me to have taken place. I think it immaterial, therefore, at what time Lady Charlotte actually received the money for the sale of the lead, if she took possession of it by any distinct act before. I mention this my opinion, for the assistance *of the Master, but I do not think it necessary to give any special direction, in my decree, to that effect, unless the parties wish it. As to the claims of Lord Pomfret the infant, and the executors of Earl Thomas William, for contribution in respect of this share, I DENYS ተ. SHUCK- [ *53 ] [54] mean not at present to decide on them, though I entertain a strong opinion that they cannot be entered into in this suit. It seems to me that these are mere personal claims, and that they will be equally capable of being enforced, whether the representatives of Lady Charlotte retain, or the plaintiff recover, the arrears of the one-fourth of the mines in question. If these parties think they can make anything of those claims, it will, however, be open for them so to do on further directions. For that period also, I reserve the question of the costs. 1840. Jan. 9. 10. Feb. 4. May 28. [ 78 ] IN THE CHANCERY OF THE DUCHY OF SCARISBRICK . LORD SKELMERSDALE. v. (4 Y. & C. 78--118.) When a real estate is so settled that it must on the death of a parent go to his eldest son, and provision is made by that parent or by any person in loco parentis, whether by settlement in contemplation of marriage, or by will, for the younger children of such parent, courts of equity have considered the presumption, that it was intended to make provision for all the children, so strong, as to warrant it in holding that by the word "younger" must have been intended all except the one child who succeeds to the estate. But this does not apply to the case of a will in which the primary intention of the testator appears to have been to found certain families, or to do something beyond merely making a provision for children. And the circumstance that the will is of an executory nature will make no difference. [AFFIRMED on appeal to the House of Lords in 1847, as reported under the title of Bootle v. Scarisbrick, in 1 H. L. C. 167, where the judgment of MAULE, J., on this hearing is set out at length.] 1840. Feb 4. May 28. [119] GRUGEON v. GERRARD. (4 Y. & C. 119-134.) After a first mortgage has been paid off, the second mortgagee may file a bill to have the legal estate conveyed to him without praying to foreclose the mortgage; and it seems he may do this, at the peril of costs, until the day of payment under a decree for redemption obtained against him by the mortgagor. Until the mortgagee is actually paid off by his own consent or by decree of the Court, he retains the character of mortgagee, with all the rights incident to it, and may therefore file a bill for foreclosure, notwithstanding a notice by the mortgagor to pay off the mortgage, and even notwithstanding a decree for redemption. Quere, whether a second mortgagee, who upon payment of the first mortgage gets in the legal estate, can consolidate this mortgage with another mortgage, previously executed to him by the same mortgagor, of a different property. A. being indebted to his bankers, executed a deed purporting to be a mortgage to them for securing the debt. After executing it, he delivered it to his attorney, who retained it in his possession till A.'s bankruptcy, which occurred about a month afterwards. The attorney then delivered it to the mortgagees: Held, that this was a good delivery by A. to the mortgagees. Where, under a bankruptcy, parties have proved their debts on the footing of holding no security, they will not generally be permitted to withdraw their proof and set up a security; but ignorance of the existence of a security may be ground for granting relief to a party who has so proved Issue directed to try whether the execution of a certain deed was an act of fraudulent preference in contemplation of bankruptcy. THE bill was filed by the plaintiff Grugeon, as the public officer of the Commercial Bank of England, and by the other plaintiff Hamilton, as a trustee for the Bank, against four persons of the names of Gerrard, and against Roger Haydick, Richard Ellison, and Thomas Wylie, who were the assignees of Thomas Griffiths, a bankrupt. The object of the suit was to obtain from the Gerrards an assignment of certain leaseholds for years, which had been mortgaged to them by Griffiths before his bankruptcy, and the money due on which mortgage had been paid off after the bankruptcy. The case made by the bill was as follows: On the 21st of June, 1836, Griffiths being indebted to the Bank in a sum of 8687. 178. on two bills of exchange, and being entitled to the leaseholds in question, subject to the Gerrards' mortgage, assigned the same by way of second mortgage to one Langton, who was then the manager of the Commercial Bank, for the purpose of securing payment to the Bank of the sum of 4681. 178., part of the beforementioned debt of 8681. 17s. On the 15th of July, 1836, a fiat in bankruptcy issued against Griffiths, under which he was duly found a bankrupt, and the defendants Haydick, Ellison, and Wylie were appointed his assignees. In the course of the following autumn, the assignees agreed to sell to a person of the name of Marshall the chief part of the mortgaged property at the price of 2,2001. A deed of assignment to Marshall was prepared, whereby the Gerrards, in consideration of 1,750l., the principal sum due to them, and Langton, in consideration of 4501. paid to him, were made to concur with the assignees in assigning to Marshall. This deed bore date the 28th of December, 1836. It was not, however, executed by all the necessary parties until the 22nd of April, 1837; and, previously GRUGEON ť. GERRARD. [120] GRUGEON V. GERRARD. [121] to its execution, it was discovered that there would not be so large a sum as 450l. coming to Langton over and above the money due to the Gerrards, there being an arrear of interest and certain other sums due to the Gerrards, to be deducted out of the 450l., which reduced it to 2741. 4s. 10d. In consequence of this, the solicitor of the Bank refused to deliver up the deed which had been executed by Langton, until a memorandum had been drawn up and signed by the assignees, stating the circumstance and admitting that the sum of 450l. was not, in fact, paid to the Bank, but only the sum of 274l. 48. 10d. This memorandum bore date the 21st of April, 1837. On the completion of the purchase on the following day (the 22nd), the title-deeds of such part of the property mortgaged to the Gerrards as was not sold to Marshall, were, with the privity and approbation of the assignees, handed over by the solicitor of the Gerrards to the solicitor of the Bank. In the following month of May, 1837, Langton ceased to be the manager of the Bank, and the plaintiff Hamilton was substituted for him. Langton, then, by a deed dated the 24th of May, 1837, assigned to Hamilton all his interest in the unsold part of the leaseholds in trust for the Bank. Under these circumstances, the plaintiffs insisted that they were entitled to call on the Gerrards to assign to the plaintiff Hamilton the legal interest in the unsold leaseholds; and the bill accordingly prayed that they might be decreed so to do. The Gerrards, by their answer, admitted that all their claim had been satisfied, and submitted to act as the Court should direct. The assignees, by their answer, in the first place, disputed the validity of the security given to Langton, on the ground that the deed was improperly delivered, being merely delivered by Griffiths the bankrupt to his attorney Thompson, and retained by Thompson (1), and that in fact the security was given without any privity of the Bank, and did not come into the possession of the Bank until after the bankruptcy; and, in confirmation of this allegation, they stated, that, after the bankruptcy a person of the name of Turner, one of the partners in the Bank, proved under the commission for the full sum of 8681. 178., being the whole amount due on the two bills, and by his deposition in support of the proof, 1) The circumstances of the delivery are detailed in the judgment. See post, Pp. 461 462. |