1824.-Cooke v. Soltau.

solicitor, and was amongst the title deeds delivered by the solicitors of William Watson to the solicitor of Henry Houson and Clay.

The plaintiff submitted that, from these circumstances, it appeared that Richard Lockwood and Abigail Cooke had no right or power to make the mortgage except to the extent of the interest of Abigail Cooke, which had long since determined; and that, under the circumstances aforesaid, the defendant's objection to the title, on *account of the mortgage of the 25th [*159] of May 1745, was unfounded.

The defendant, by his answer, said that there was not in the abstract any statement of any deed, will or other document of title intermediate between the mortgage deeds of the 24th and 25th of May 1745, which were endorsed upon certain other indentures of the 31st of August and 1st of September 1736 and the mortgage in 1791, and that there was no receipt for the mortgage-money by the mortgagee indorsed upon these deeds, nor any evidence to show how long such deeds had been in the possession of the mortgagor: and, under such circumstances, he submitted that the heir or devisee of Robert Johnson, or the other persons in whom his estate might be vested were necessary parties to the conveyance.

Mr. Preston and Mr. Sidebottom for the plaintiff:-The mortgage in question was made so long ago as the year 1745. From that time down to the present, a period of nearly eighty years, there is no trace connecting it with Johnson in any shape whatever, nor is any thing heard of his interest. In 1754 the plaintiff's father came into possession; and it appears by the affidavit of Henry Cooke, the plaintiff's brother, that he assisted his father in the management of his affairs for twenty years previous to his decease: and, therefore, if any payment or demand of either principal or interest had been made he must have known of it. But he swears he never heard of any demand being made under this mortgage.

The fact that no administration can be found to this mortgagee, proves clearly that the mortgage-money had been satisfied. For if not, some person would have been *induced to administer to the mortga- [*160] gee for the purpose of recovering it. In 1791, previous to making the mortgage to Watson, the title was investigated, and the opinion of counsel taken upon it, and he advised that the security might be accepted. At that time the deeds of 1745 were found in the hands of the mortgagor; and we trace him in possession for more than twenty years. If a mortgagee had filed a bill for a foreclosure stating circumstances similar to those of the present case, a plea or demurrer would have held good. In two cases, where a mortgagee stated his title so as to raise a doubt, the court has refused relief. Christophers v. Sparke, (a) and Blewit v. Thomas. (b) The same doctrine was held by Lord Thurlow in Trash v. White.(c)

If under the circumstances of the case this title is not good, it is impossible

(a) 2 J. & W. 228.

(b) 2 Ves. jun, 669.

(c) 3 Bro. C. C. 289.

1824.-Cooke v. Soltau,

to conceive how it can ever be made good. The personal representative of the mortgagee could not claim the money, nor the heir, the estate.

If an action were brought by the heir-at-law of the mortgagee to recover this estate, there is no judge who would not direct a jury to presume a reconveyance of the legal estate. If the mortgagee died without an heir, no jury would presume an escheat after a possession of seventy years. In Hillary v. Waller, (d) where there was no adverse possession, a reconveyance was presumed. This case however falls within the principle of Emery v.

Grocock.(e)

The alleged object for raising the 3007., was to enable the trustee [*161] to perform the trusts of the will. But the *trustee had no power to mortgage the estate for any such purpose; and, even with the concurrence of the tenant for life, he could only mortgage it for her life. Under all the circumstances of this case, and as a period of time has elapsed sufficient to destroy every kind of remedy, we submit that the objection to the title to these houses cannot be maintained, and that a specific performance ought to be decreed.

Mr. Sugden and Mr. Pemberton for the defendant:-The case before the court is not the case of mortgagor and mortgagee, but of vendor and purchaser. The doctrine of presumption as between mortgagor and mortgagee is one thing, and as between vendor and purchaser, another. In the case of mortgagor and mortgagee there is not any time in which the possession becomes adverse; for it is the practice for the mortgagor to remain in possession. A long possession, in order to be a ground for presuming a reconveyance, must be adverse. Fenwick v. Reed.(f) That case afterwards went to law, and the jury were of opinion that there were no grounds for presuming a release of the equity of redemption. If a mesne incumbrancer were to get a conveyance of the legal estate, it would be no objection to his availing himself of it, that the mortgage money had been paid. As to this mortgage being made by persons who had no title to make it, it appears that a mortgage was originally made by the testator, and after his death the mortgagees conveyed the estate to the trustees of his will, and they again mortgage to Johnson. So that this is the case of trustees of the equity of redemption who, having paid off the mortgage money,

create another mortgage in fee for the purpose of enabling themselves [*162] .*to perform the trusts of the will. That objection therefore will not

hold. How do the plaintiffs prove that there was not a counterpart of the mortgage deed? If there were, and it was executed by all parties there is an end to the question. There were no intermediate deeds executed from 1745 to 1791; so that no aid can be derived from that circumstance. There is no indorsement on the deed of payment of either principal or interest. The plaintiffs did not choose to investigate the facts of the case in 1791, when they might have done so ; but they waited until 1819, when Richard Lockwood was dead, and then took a reconveyance from his heir. At that time the legal (e) 6 Madd. 54. (ƒ) 1 Mer. 114.

(d) 12 Ves. 239.

1824.-Cooke v. Soltau.

estate was not in the heir of Richard Lockwood, but in the mortgagee; and therefore the reconveyance ought not to have been taken from him but from the mortgagee. The plaintiff says that it is unreasonable for the defendant to require a reconveyance from a person who acquired the legal estate in 1745, and yet he himself takes a reconveyance from persons whose interest vested in them in 1734. How can the plaintiff, with any consistency, insist upon the effect of presumption as against the defendant, when he takes a reconveyance of a prior title? Richard Lockwood, the surviving mortgagor, was alive at the date of the deed of 1791; but he was not made a party to that deed. This is an admission that at that time the legal estate was in the mortgagor. In the year 1818 the plaintiff takes a reconveyance from the heir of Richard Lockwood. It is clear, therefore, that the reconveyance must have taken place between 1791 and 1818. As to the authorities in regard to presumption there really are none. The case of Hillary v. Waller has not met with the approbation of the profession. And we beg to refer to what was said by the Lord Chancellor in the case of Lord Cholmondeley v. Lord Clinton *in [*163] the house of lords.(g) The case of Emery v. Grocock has no application to this; for there the term was created in 1711, and in 1744 a settlement was made and a recovery suffered, and it was therefore impossible for the settlement to have prevailed if the portions had not been paid.

The VICE-CHANCELLOR :-I adhere to the principle of Emery v. Grocock. No reconveyance could ever be presumed without the actual production of the deed, unless it could be properly presumed in this case.[1]

(g) Sug. Vendors, 425, 6th edition.

[1] Vide Noel v. Bewley, 3 Sim. 103.

END OF PART I.

Where there are several funds provided by different persons for the maintenance of infants, the interest of the infants must alone determine which of the funds is first applicable.

THE plaintiffs were infants, and this suit was instituted for the purpose of having it determined out of which of several funds provided for the purpose, they were to be maintained and educated.

By a settlement, dated the 17th of October 1798, made upon the marriage of John Savile Foljambe, certain real estates were limited to the use of him for life, with remainder to the use of trustees for five hundred years, with remainder to the first and other sons of the marriage in tail, with the ultimate remainder to the use of John Savile Foljambe in fee. The trusts of the term of five hundred years were declared to be that, in case there should be an eldest son of the marriage and three or more younger children, the trustees

should, by sale or mortgage, raise the sum of 5,000l. to be divided [*166] among the younger children, in such shares as the father should ap

point; and, in default of appointment, equally; the portions of sons to be payable at twenty-one, or sooner, if the trustees, after the death of the father, should think proper, for their advancement; and the portions of daughters, at twenty-one or marriage, with benefit of survivorship in case any of the children died before their shares became payable; and, after the death of John Savile Foljambe, to raise, for the maintenance of the younger children, till their portions should become payable, such sums of money as the trustees should think necessary, not exceeding the interest of their portions at the rate of four per cent per annum.

John Savile Foljambe, by his will after ratifying the settlement and giving divers pecuniary and specific legacies, bequeathed all the residue of his personal estate to trustees, upon trust to pay, assign and transfer it unto and equally amongst all his younger children who should be living at the time of his decease, or be born in due time afterwards, share and share alike, the shares of sons to be paid at twenty-one, and of daughters, at twenty-one or marriage;

1824. Foljambe v. Willoughby.

and, in the mean time, the dividends and interest to be applied by the trustees, at their discretion, towards their maintenance and education.

John Savile Foljambe died in 1805, soon after the date of his will, leaving issue of the marriage four children, of whom the three younger were infants, and were the plaintiffs in this suit.

After his death, his father, Francis Ferrand Foljambe, who was also a party to the settlement, made his will, dated in 1813, and by it devised certain real estates to *trustees for a term of two hundred years, upon trust [167*] to apply a sufficient part of the rents and profits, at their discretion, for and towards the maintenance and education of his four grandchildren, the children of his late son John Savile Foljambe, during their minorities, in such proportions and manner as the trustees should, in their discretion, think most advisable; and also upon trust, subject to the payment of certain debts and legacies to the plaintiffs and other persons, and also to the maintenance of the infants, to permit the person entitled for the time being to the estate in remainder immediately expectant on the term, to receive the rents and profits.

Francis Ferrand Foljambe died soon after the date of his will.

After the death of John Savile Foljambe, and until the death of Francis Ferrand Foljambe, the trustees and testamentary guardians of the plaintiffs received the interest of their portions under the settlement, and applied it, together with the interest of the residuary personal estate of John Savile Foljambe, in the maintenance and education of the plaintiffs.

The only fortunes to which the plaintiffs were entitled were the legacies of 5,000l. each under the will of their grandfather, and the provision made for them by the settlement and will of their father. George Savile Foljambe, the eldest son, was entitled to very large estates, which yielded him a yearly income of above 14,000l.

The bill, after stating these circumstances, charged that the grandfather of the plaintiffs intended that their *maintenance should be pro- [*168] vided for under the trusts of the term of two hundred years created by his will, and that the provision made for them by the settlement, and by their father's will should accumulate for their benefit; and that they had accordingly, since the death of their grandfather, been wholly maintained, under the trusts of the two hundred years term. It also stated that no account had ever been taken of the estate of their father, nor of the accumulations of it since the death of their grandfather; and that, in November 1822, the eldest of the plaintiffs attained the age of twenty-one years, and became entitled thereupon to have one third part of her father's residuary personal estate, and the accumulations thereof, and of her portion under the settlement, paid to her; but that the defendants, the trustees, refused to pay them to her, on the ground that these funds were to be considered as first applicable for her maintenance. It prayed that the rights and interests of the plaintiffs, and of George Savile Foljambe, their eldest brother, might be ascertained and declared, and proper accounts be taken for that purpose.