Queens Bench Reports Vol 16

Author : UNKNOWN. AUTHOR
Publisher : Forgotten Books
ISBN 13 : 9781330211960
Total Pages : 466 pages
Book Rating : 4.2/5 (119 download)

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Download or read book The Law Journal Reports, Vol. 16 written by UNKNOWN. AUTHOR and published by Forgotten Books. This book was released on 2015-06-26 with total page 466 pages. Available in PDF, EPUB and Kindle. Book excerpt: Excerpt from The Law Journal Reports, Vol. 16: For the Year 1838; Comprising Reports of Cases in the Courts of Equity, and Bankruptcy, Queen's Bench, Common Pleas, Exchequer of Pleas, and Exchequer Chamber, From Michaelmas Term, 1837, to Trinity Term, 1838, Both Inclusive The lien of a judgment creditor on the real estate of his debtor, where execution has not been taken out, is defeated by the exercise of a general power of appointment given to the debtor in the conveyance of the estate, by which the estate was limited in default of appointment, to the usual uses to bar dower; and that, notwithstanding the appointee had notice of the judgment. This case will be found reported in 6 Law J. Rep. (n.s.) Cha tic. p. 21. The facta of it were simply these':-An estate was limited to such uses as William Cook should appoint, and, in default of appointment, the fee was limited to Cook in such manner as to bar dower. In 1828, the plaintiff, Mrs. Skeeles, obtained a judgment for 1,0001. against Cook, which was duly entered, docketed, and registered in the office for registration for the county of Middlesex; and in November 1830, the plaintiff issued out a writ of elegit on her judgment. In July 1830, Cook had appointed the property to the defendant Sbearly, by way of mortgage, for securing 4,500/.; and the mortgage was not to be redeemed before 1838. On the 22nd of November 1830, the sheriff of Middlesex extended a moiety of the estate for the benefit of the plaintiff, but did not give her actual possession o it. She, therefore, brought an action of ejectment against the tenant in possession; but being nonsuited by means of the legal estate vested in Sbearly, under the appointment contained in the mortgage deed, she thereupon filed this bill, alleging that the defendants had notice of her judgment before it was registered, and before the mortgage to Sbearly; and also alleging, that it had been agreed between Shearly and Cook, that 1,000/., part of the 4,500/., was to be applied in satisfaction of the plaintiff's claim. One of the persons who were present at the payment of the mortgage money deposed, that the 1,000/. was retained by one of the defendants, to meet the plaintiff's claim, if the estate should prove to be liable to pay it. The bill prayed, that it might be declared that the plaintiff, by virtue of her judgment, had a lien on the estate prior to any incumbrance of the defendants; and that they might deliver up possession to the plaintiff, and might be restrained from setting up any legal estate to defeat an action of ejectment; or if the Court should determine that the defendants had a charge prior to her own, then that she might be at liberty to redeem such prior charge. The argument proceeded on the assumption, that the defendants had notice of the judgment. The Vice Chancellor dismissed the bill with costs ; and the plaintiff had appealed from his Honour's decree. Mr. Wigram and Mr. Stuart appeared for the plaintiff, and contended, first, that as Cook in effect was the unrestricted owner of the property, he could not in equity defeat the plaintiff's judgment by an execution of his power of appointment; -secondly, that the defendant having notice of the judgment, took the estate subject to the plaintiff's rights; and, thirdly, that the plaintiff was at all events entitled to redeem the mortgage. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com