Jackson v. Innes and others [1819] UKHL 1_Bligh_104

UKHL
Jackson v. Innes and others
[1819] UKHL 1_Bligh_104
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS OR WRITS OF ERROR, And decided during the Session , 1819. 59 Geo . III.SCOTLAND.APPEAL FROM THE COURT OF SESSION (FIRST DIVISION).

No. 4

Jackson Appellant v. Innes and others Respondents

1819 .Where lands are in settlement, and the husband and wife join in a mortgage of them, if the deed creating the security is no more in effect than a simple charge upon the lands, and does not alter the limitations further than is necessary to create the charge, the right of redemption, although it be reserved by the deed to the husband and wife, or either of them, their or either of their heirs , &c. belongs only to those who are intitled under the settlement, and not to the heirs of the husband, if he survive the wife.But where the lands of A. upon her marriage were settled to the use of husband and wife successively for life, remainder in strict settlement, remainder to the wife and her heirs, with a power of revocation and appointment of new uses; and she joined with her husband in a mortgage, and by the deed to lead the uses of a fine which the husband and wife afterwards levied, according to covenant, the lands after the determination of the term, created to secure the repayment of the money borrowed, were limited to the husband and wife, and survivor for life, remainder in tail special; remainder, for default of such issue, to the right heirs of the survivor of husband and wife: The wife having died without issue, leaving the husband survivor, it was held, that this was more than a mere mortgage transaction—that there was evidence of an intention to effect a change of the beneficial interest; and that there was upon the face of the deed a clear manifestation of such intention, equivalent to a declaration; and consequently that the husband and his heirs, and not the heirs of the wife, were intitled to the equity of redemption.

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Lord Redesdale .—The facts * material to be stated in this case are as follows:—By a marriage settlement, executed in the year 1743, certain lands were settled to the use of Richard Jackson, the husband, for life; the remainder to Anne, his intended wife, for life; remainder to the children, male and female, of the marriage, in strict settlement; remainder to the use of Anne, the intended wife, her heirs and assigns; and the deed contained a proviso, enabling R. Jackson, and Anne, his intended wife, by any deed, &c. to revoke the uses, and to limit or appoint any other uses to any persons, and for any estates. In the year 1745, the husband and wife borrowed the sum of 200 l .; to secure the re-payment of which, by indenture, dated the 25th of November, 1745, they demised the said lands to John Child, (as mortgagee) for the term of one thousand years, with a proviso for redemption, by R. Jackson and Anne his wife, or either of them, their, or either of their heirs , &c. and in case of such redemption, that the term and estate thereby granted should determine. This latter instrument, it is to be observed, could only have effect under the power of revocation contained in the settlement, and it operated

Footnote

* The facts, as they appeared upon the pleadings in the court of chancery, at the original hearing, are to be found stated at length in Mr. Vesey's Reports, vol. xvi. p. 35. Some omissions and some inaccuracies, owing probably to the state of the pleadings at the date of the decree, have been supplied and rectified in the following report. The observations made in moving judgment comprise a sufficient outline of the facts to make the case intelligible to the reader, and to supersede the necessity of giving a distinct and independent narrative of the case.

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Jackson and his wife having afterwards borrowed of the mortgagee the further sum of 400 l . by indenture, dated the 1st of January, 1746, they confirmed to the mortgagee, &c. the lands demised for the remainder of the term, discharged from all former provisoes, &c. but subject to a proviso for redemption, upon payment by Jackson and his wife, of the sum of 600 l . with interest, whereupon the term and the respective indentures, whereby it was granted and confirmed, were respectively, to cease and be void; and Jackson and his wife thereby covenanted to levy a fine of the lands, &c. and it was declared that the fine so levied of the premises should enure to the use of the mortgagee, his, &c. for the remainder of the term, subject to the proviso for redemption; and “from and after the expiration, or other sooner determination of the said term, to the use of Richard Jackson and Anne his wife, for their lives, and the life of the survivor, and from the decease of the survivor to the use of the heirs of their two bodies, &c. and for default of such issue, to the use of the right, heirs of the survivor <p style="text-align:right;color:#006600;background-color:white";><b>Page: 107</b>↓</p><page pagenum="107"/>of R. Jackson, and Anne his wife, for ever,” &c . A fine was afterwards levied according to the covenant, and it is upon the construction and operation of the latter words of this deed that the whole question in this appeal arises.Of the same date with the deed by way of further mortgage and limitation, R. Jackson executed a bond and warrant of attorney to C. the mortgagee, to secure the repayment of all the money borrowed. In the year 1755, R. Jackson paid the principal and interest then due to the mortgagee; whereupon the chirograph of the fine, and the deed of 1746, to lead the uses, were given up to him, and satisfaction acknowledged upon the judgment which had been entered up by the mortgagee. But I do not find that any assignment was made to him of the term. *It is to be observed, that the proviso for redemption, which was contained in the first deed of mortgage, stipulating, that “if R. Jackson and Anne his wife, or either of them, their or either of their heirs, &c. should pay, &c.” was by the second deed of mortgage and new limitation discharged; and in this latter instrument the proviso was simply, “if R. Jackson and Anne his wife, should pay, &c. that the said

Footnote

* In the report of this case, in 16 Vesey, 356, it is stated, that the term was assigned to Jackson, the husband. But that is a mistake. The provision of the deed is, that on payment, &c. the term shall cease; and there is no proviso for re-assignment. According to the substance and prayer of the cross bill, in the cause, it is supposed that the term is in the representative of Child, the mortgagee.

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Mrs. Jackson died in the year 1772, without issue, having made a will, which has no operation upon any matter in question in this case: because her power of disposal by will did not extend to any part of the property in question.

Post , p. 109

The fine and the indenture of 1746, which had been delivered up to the husband, were mislaid, and supposed by him to have been lost, but they were found after the mortgage transaction between him and Charles Cooth, the heir of Mrs. Jackson.In the argument of this case much stress was laid upon the expressions of the letter, written by Richard, (then Dr.) Jackson, to Cooth, dated the 8th of July, 1772, thirty-six years after the date of the deed creating the new limitations. In that letter, after mentioning a will, supposed to have been left by his wife, he adds, “It would not hurt me in the least to find it good for nothing. As you are her heir at law . Should I find the fee of her estate in me, I might,” &c. When he wrote that letter, he seems to have had an impression of some deed by which the fee vested in him. From this it has been argued, that the relief has been rightly given by a Court of Equity,

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At various times after the date of these letters, Dr. Jackson, upon the application of Charles Cooth, had lent him sums of money, which in the year 1783 amounted to 600 l .; and Dr. Jackson by a letter sent to Cooth but a short time before, having informed him that the chirograph of the fine and the deed to lead the uses were missing, and that he (Charles Cooth), as heir-at-law to Mrs. Jackson, was intitled to the estate after his (Dr. Jackson's) death; it was agreed between them that the 600 l . advanced should be secured by a mortgage to be made by Cooth of his supposed reversionary interest. Upon this misapprehension of Dr. Jackson as to the

Footnote

* Lord Redesdale, in moving judgment, read the whole decree. See p. 112, et seq.

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After all these transactions, Dr. Jackson having made farther advances to Cooth by way of loan, to the amount of 400 l . the parties agreed that a farther charge should be made upon the supposed reversion by way of indorsement upon the mortgage deed already executed, which was accordingly prepared. But before it was carried into effect, the chirograph of the fine and the deed to lead the uses of the fine, dated in 1746, had been discovered by Dr. Jackson, who thereupon sent to Charles Cooth the deed, purporting to create a mortgage upon his supposed reversion as an useless instrument.Charles Cooth, before he received information of the discovery of the fine and deed, had, by a will dated in 1782, given to one Hester Bower, his supposed reversionary interest in the Lye Farm, (part of the lands in question). The will adopting

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After the death of Charles Cooth, Dr. Jackson sued for and obtained from Mrs. Bower, part of the money advanced to Cooth; and Mrs. Bower died in 1794, without having made any claim to the reversion under the will of Charles Cooth, and without requiring any receipt for the monies paid by her to be indorsed upon the mortgage of the supposed reversion.In 1797 Dr. Jackson died. He had made a will in 1775, when Charles Cooth was living, by which he had given the lands and farms in question to Charles Cooth and the Appellant. Afterwards, by a will dated in 1797, he devised the same lands, &c. to the Appellant, subject to the charge of certain annuities.The Bill was filed in 1804 by J. B. Innes, claiming as heir at law to Hester Bower. It was after wards amended by making Edmund, the heir at law of Charles Cooth a co-plaintiff, and adding other parties. After stating the original settlement, the several deeds of mortgage, and new limitation, &c. and that the equity of redemption was by mistake reserved to the survivor of Dr. Jackson and his wife; the bill prayed an account of arrears of the mortgage, of rents and profits, since the death of Dr. Jackson, &c. and a re-conveyance, &c. The cross, bill filed by the Appellant seems to have had no reasonable object or purpose, and was properly dismissed. The

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5 Dow, 1. (D.P. June 5, 1818.)This is a case of great importance as a precedent, and as affecting the titles of persons who take under conveyances, supposing it not to be liable to impeachment upon the ground stated. It is highly important in all cases, that the principles of decision should be known and uniform—that professional persons may be able to advise with safety. In a case of this kind, a purchaser acting under a misconception of his legal adviser, found that his title was deficient. That was the case of Ruscombe v. Hare , in which the doctrine of resulting trust was held applicable. In this case it is alleged, that there is a distinct ground, scil . of fraud, to annul the limitation to the husband being the survivor. But no such ground is recognised by the decree, or established in evidence. The only question, therefore, which is now presented for the consideration of the House is, whether the decree is founded upon the principle which regulated former decisions, and was established by the judgment of this House upon the appeal in the case of Ruscombe v. Hare . The principle is this—That in a mortgage, the mere form of reservation of the equity of redemption is not of itself sufficient to alter the previous title. In such a case, (where fraud is out of the question), it is supposed to arise from inaccuracy or mistake, which is to be explained and corrected by the state of the title as it was before the mortgage. This is conformable to the principle upon

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The case of Broad v. Broad * was the first in which the doctrine was applied. In Eq. Ca. Abr. 62, it is laid down as a general principle, that where money is borrowed by husband and wife, upon the security of the wife's estate, although the equity of redemption by the mortgage deed is reserved to the husband and his heirs; yet the wife shall redeem, and not the heir of the husband; and for authority, reference is made to the case of Broad v. Broad . According to the facts of that case, to be collected from the reports, T. B. the husband of the Plaintiff in the suit, settled certain houses in Bread-street, London, to the use of himself for life, remainder to the Plaintiff

Footnote

* This case appears in Eq. Ca. Abr. 316, referring to 1 Vern. 213, under the name of Brend v. Brend . In 2 chanc. Ca. 99, it is Brond v. Brond ; and in 2 chanc. Ca. 161, it is Broad v. Broad . See post . p. 117, note.

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Footnote

* It was in such form that mortgages of this species were made at the date of the report.

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It was decreed, that the Plaintiff should have the redemption, paying a third part of the principal, but should have no profits received by the Defendant until the filing of the bill in 1681, when he first had notice of the agreement. The decree, therefore, which was made upon the original hearing, proceeded entirely upon the foundation of the agreement. A bill of review * having been afterwards filed, suggesting, that the decree was founded upon a trust arising out of an agreement by the husband, and that the agreement was not mentioned in the decree, nor stated to have been proved: Lord North, then Keeper, admitted the objection to the form of the decree, and said, that he took no notice of the agreement on that account, but affirmed the decree, because when the wife joined in the fine of her jointure, in order to a mortgage or security, it was not an absolute departing with her interest; but there resulted a trust for her when the mortgage was paid, to have her estate again, as if it had been a mortgage on condition, and the money paid at the day.That was the first † case in which the principle was established. It has ever since been adopted

Footnote

* 22 Feb. 1683, Broad v. Broad , 2 Chanc. Ca. 161. It appears singular that the Court in this case, at the original hearing, should have proceeded upon the ground of the agreement only, and have taken no notice of the doctrine of resulting trust. Because in the same Court three years before, a case seems to have been decided upon that principle. See the note, infra .† There is an earlier case, decided in the time of Lord Nottingham, in which the same principle appears to have been applied. Cotton v. Cotton , 2 Chanc. Rep. p. 72. 30 Car. 2. The

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In Rowel v. Whalley , 1 Chanc. Rep. 116, the wife joined with her husband in a mortgage of her lands, by a deed containing a proviso and declaration, that if the husband and wife, or either of them, or their heirs, executors, &c. paid to the mortgagee, his executors, &c. the sum borrowed, that the fine to be levied according, to a covenant contained in the deed should enure to the husband and wife, and the longest liver of them; with remainder to the right heirs of the husband for ever. Here is a case of a distinct declaration, in no manner depending upon the

Footnote

cause was heard by Mr. Justice Windham, and the application of the doctrine of resulting trust appears incidentally in the report of the decree, which contains the following declaration:—
“And as to the mortgage made to Perkins by the said Nicholas and the Defendant his relict, it appearing that part of the mortgaged lands was, before that mortgage was made, settled on the said Nicholas and Katherine in jointure, or otherwise, so as the same came to her as survivor: This Court is of opinion, that the equity of redemption belongs to her as survivor, and not to the Plaintiff,”
who claimed it as heir to Nicholas her husband.

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In the case of the Earl of Huntingdon v. the Countess of Huntingdon , * 2 Vernon, 437, the

Footnote

* See Tate v. Austin , 1 P. W. 264, where this case appears as cited by Cowper, Lord Chancellor; but the circumstances are not correctly given in the report.—The Lord Chancellor is supposed to state in Huntingdon v. Huntingdon , that the heir

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Footnote

of the wife brought his bill to exonerate the inheritance, and to have the mortgage paid off out of the husband's personal estate; which is repugnant to the facts of the case, and the previous statement in the report itself, that the husband had, in his lifetime, paid off the mortgage the question in the cause was, whether the executrix and devisee of the husband, (being his second wife), was entitled to hold the term under the will for her own benefit; or whether there was a resulting trust for the heir of the first wife; and if so, whether he was bound to repay to the estate of the deceased husband the principal and interest, which he had paid to discharge the mortgage, or was entitled to have an assignment of the term without such payment.

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Footnote

* 1 Bro. P. C. 1.—Jour. H. of Lords, 17 vol. p. 236.

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Footnote

* Ambler's Rep. p. 150.

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In the case of Jackson v. Parker , * which was decided by Sir Thomas Sewell, a difficulty occurred of a different description. The husband had borrowed a sum of money, and in order to make a security, by mortgage of his own estate, his wife joined in a fine, which would have the effect of barring her of any claim of dower. The limitation of the equity of redemption was to the husband and the wife, and their heirs; and there was a declaration in the deed, that after payment of the money lent on the mortgage, the fine should enure to the husband and his heirs. Other charges were afterwards made upon the estate, and those subsequent charges were all made redeemable by the husband and wife, and their heirs. The husband by his will made a disposition of this property, in trust, to raise provisions for all his children. But the will was disputed by the eldest son and heir at law, upon the ground, that it was a devise of the equity of redemption, of which the husband was not sole seised; because the equity of redemption was reserved to the husband and wife, and their heirs. Sir Thomas Sewell had some, difficulty upon the subject at first, in consequence of the words of the statute of wills, which does not admit of a devise of property, of which the devisor is not sole seised. But upon reflection, he decided, that the case was to be considered as in equity; it was not a legal estate, and as an estate to be governed by the rules of equity, it was the seisin of the husband, and not

Footnote

* Ambler's Rep. p. 687

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In the case of Corbett v. Barker , according to the report, * the Court do not seem to have had the least notion that there existed a resulting trust, such as the House of Lords held to exist in the case of Ruscombe v. Hare , and they dismissed the bill. In that case, it appears probable that Baron Thomson doubted the correctness of the decision; for he says, “That a reservation of the

Footnote

* 1 Anstr. p. 138.

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Footnote

* The case upon the original hearing is reported 1 Anstr. 138. The only facts reported, so far as they regard the principle discussed in the text, are as follow:—the plaintiff's father being seised in right of his wife, he and the wife mortgaged the estate for a term of years, and a fine was levied according to previous agreement and covenant; which fine was to enure to the use of the mortgagee, his heirs and assigns, subject to the proviso, and the equity of redemption was reserved to the husband and wife and their heirs. Afterwards, the mortgage having been assigned to the Defendants; the husband and wife, in consideration of 1601., by lease and release, conveyed their equity of redemption in fee, and covenanted, that all fines, conveyances, &c. should enure to the sole use of the Defendant in fee. After the death of the husband and wife, the Plaintiff their son filed the bill, claiming the estate by descent, as heir to his mother, subject to the mortgage. For the Plaintiff it was argued, that the mortgage deed being only for a term of years, though the fine is in fee, yet it is to the uses mentioned in the deed; and there is a proviso that on payment, &c. the term shall be void; then only the term was in the mortgage, and the fee was a resulting use in the wife, from whom it proceeded; and that being vested by the statute, she was immediately in of her old estate as to the fee.Romilly for the defendant, argued, that the bill could only reach one half of the estate. For as the fine saves the equity

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It must now be admitted as an established principle, to be applied in deciding upon the effect of mortgages of this description, whether it be the estate of the wife, or the estate of the husband, if the wife joins in the conveyance, either because the estate belongs to her, or because she has a charge by way of jointure or dower, out of the estate, and there is a mere reservation in the proviso for redemption of the mortgage, which would carry the estate from the person who was owner at the time of executing the mortgage, or where

Footnote

of redemption to the husband and wife, and their heirs, one half was therefore vested in him, and passed to the defendant: but Thomson, B. interposed, saying, “it had often been ruled, that a reservation of this kind, in a fine, levied completely diverso intuitu , shall not, without an express declaration of such intention, carry the estate in a new channel; nor even if it had been to the husband and his heirs only.” After this interposition by the court, the argument upon this point of the case appears to have been dropped, and the question was then argued and decided upon the fact of length of possession by the mortgagee. Eyre, Chief Baron, at the conclusion of his judgment saying,—As the Plaintiff fails upon this point, ( i.e . possession by the mortgagee), it is unnecessary to consider the other, as to the operation of the fine upon the subsequent conveyance; although upon that point the Plaintiff's counsel seemed to be in the right. There is not to be found, either in this report, or in the further report of the case upon the re-hearing, (3 Anstr. p. 755), any other statement or allusion to the doctrine of resulting trust. The principle of decision is to be collected only from the extracts above inserted. It appears singular that it should not have been adverted to by the Court in giving judgment; yet it is possible, considering the decisive remark made by Thomson, Baron, upon the original hearing, that nothing further might have been said upon the subject at the re-hearing.

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In all the other cases decided upon the general principle, the grounds of the decision were, “that the mode in which the redemption was limited, was by mistake or improper contrivance introduced into, the deed.” But in this case, there is no ground to raise such imputations. For the deed is clear and express in its declarations and provisions. The case is really in principle, if not in circumstances, the same as the case of Rowell v. Whalley .Where the declaration of the uses of the fine refers simply to the operation of the deed as a mortgage: where it is simply a declaration, that the money being paid, the fine shall enure to the persons who make the mortgage, and there is nothing else which makes it subject to redemption, that would be considered as a mere clause of redemption, and construed in the same way. But where the form of the equity of redemption has nothing to do with the limitation of the estate; where the limitation of the estate is perfectly

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Suppose that Dr. Jackson had died first, and that Mrs. Jackson had married again, and marrying again, had issue by a second marriage, there being also issue of the first,—what would have been the construction then put upon this deed? According to the deed, if she had only daughters by the first marriage, they would take the estate under the limitation to the heirs of the body of Dr. and Mrs. Jackson. But if the estate was to be considered as a fee in her, and if this subsequent declaration was to operate nothing, if she had a son by her second marriage, that son would be her heir at law. Yet if a contest had arisen between the daughters by the first marriage, and the son by the second, could any doubt have been entertained who would be entitled to the estate? Dr. Jackson had stipulated for his own children. Consider how the estate was limited before the mortgage. It was limited by the original settlement to the children. When that settlement was destroyed by the fine, and the revocation, which was the effect of the fine, and new uses declared, the resulting trust, if any could arise, must be to the old uses declared under the settlement. If otherwise, the estate must have gone according to the new uses; and then there might have been a contest between the persons entitled under the latter disposition, and those who were entitled under the former.Suppose again, that Mrs. Jackson had survived,

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The question of fraud must be put out of the case, as it appears to me. How can it be imagined that a prospective fraud was contemplated, the effect of which, according to the view in which the objection is made, must have depended upon the chance, whether the husband would survive the wife. That contingency happened six-and-twenty years after the deed was executed. The Court must interpret the deed. No Court has a power, in such a case, to set aside a deed. Ruscombe v. Hare , and all the prior cases, have been interpretations of the deed. The ownership, prior to the deed, and the purpose of the deed, must be considered, in giving the interpretation;—that is the language of Sir Thomas Sewell in Jackson v. Parker . In the case before us, we are required not to interpret the deed, but to determine that the part of the deed which, having no connection with the mortgage, disposes of the estate, subject to the mortgage term, is to be wholly set aside,

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If the question had been put to me, after the death of Mrs. Jackson, whether Dr. Jackson, having survived her, had a good title to this estate, I should not have scrupled to give my opinion, that he had a good title to the estate. If a similar question had been put to me in Ruscombe v. Hare , I should have answered doubtfully; because, in the case of Broad v. Broad , and cases decided upon the principle which there prevailed, I should have found that Courts of Equity had applied the doctrine of resulting trust for the benefit of the wife. But, according to the mode in which

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Upon these grounds it appears to me that the part of this decree which declared, that the Appellant was a trustee of the equity of redemption for Blundell Innes, as the heir of Hester Bower, and for the heir of Cooth, is not according to law. The equity of redemption there intended is, I presume, the equity of redemption upon the original mortgage, which was made by Dr. Jackson and his wife, because the Appellant was not trustee of any equity of redemption upon the mortgage of 1784. Dr. Jackson was mortgagee in that mortgage. The mortgage of 1784 was a mortgage made by Charles Cooth to the late Dr. Jackson. It was a conveyance, under the supposition that Charles Cooth had a legal interest in the reversion of the estate. The supposed equity of redemption was in Charles Cooth, and in those claiming under him, and it was the supposed legal estate that was so far in Dr. Jackson. I apprehend therefore that the declaration that the Appellant was trustee of the equity of redemption, means the equity of redemption upon the mortgage term, which was created and confirmed by the mortgage deeds executed in 1745 and 1746, by Dr. and Mrs. Jackson. If that term of years was vested in Dr.

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I apprehend that at the time when this decree was made, the circumstances of the case could not have been correctly stated to the Court; that there must have been some confusion, arising from the statement which was made to the Court, and owing to that confusion this declaration was contained in the original decree—that the Appellant was a trustee of the equity of redemption in the estates and premises, the Appellant not having in him any estate whatsoever which was in the nature of an equity of redemption. He had the fee simple of the estate, subject to a term of years;—but he had not in him, so far as I can find from the pleadings, the term of years, for I do not find that the term was assigned. He had also whatever interest Cooth conveyed by the mortgage which he executed; but that mortgage executed by Cooth could convey nothing, if Jackson had the fee in him which was vested by the settlement made in 1746. The language, therefore, of the decree is certainly in that respect incorrect, and I think that must have arisen from some misstatement with respect to the circumstances of the case. As they now appear before the House upon the pleadings, my humble opinion is, that this decree,

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I shall move simply to reverse this decree, and that the bill should be dismissed.The Lord Chancellor .—The circumstances of this case are certainly, in point of fact, much better understood than they were, and much greater research has been made into cases, so as to bring before the consideration of the House, the true principle of decision. The Court below did not rightly apprehend the case, as it now appears. The judgment of this House will remove a difficulty, which I know is floating in the minds of many persons. I conceive it to have been the opinion of Lord Thurlow, that in order to dispose of the equity of redemption of the wife in an estate, it was absolutely necessary there should be in the recitals of the instrument,

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10 July, 1819.Decree reversed.* * * After I had written the note which is to be found in pp. 125, 6, I was furnished with an extract of the decree upon rehearing in the case of Corbett v. Barker . The decree contains only directions for the ordinary accounts upon redemption, without any declaration upon the subject of resulting trust.