of assurance, and the usual assignment thereof; and that it never was, nor is, necessary for any person to whom such assignment is made, to have his name entered in any book belonging to the Society, or to be in any manner known, to such Society, as the holder of the policy: That, at the time, and on the occasion of the execution of the assignment, Newman delivered to Charles Henry Thorp, and the defendant Joseph Thorp, the policy of insurance effected at the Equitable Office, and also the other policy; and that the former policy had continued in the possession of Charles Henry Thorp, and Joseph Thorp, during the life of Charles Henry Thorp, and that, since his decease, it had been, and was then in the possession of the defendant Joseph Thorp That no notice was given to the Equitable Assurance Company, or their trustees or agents, of the assignment of that policy, nor was any entry of such assignment made in the books of the Company, but that Joseph Thorp had paid to the Equitable Assurance Company, the two years' annual premium which became due on the policy, in the months of October, 1822, and 1823; and that, according to the rules and regulations of the Equitable Society, it was not necessary, in order to give effect and validity to the assignment, that the same should be entered in any book belonging to such Society, and that, in fact, the Equitable Society had not any book wherein to enter the assignment of their policies; and that, when assignments of their policies were made, it was not usual or necessary, in any manner, to apprize the Society of such assignments: That, at the time. of the issuing forth of the commission of bankruptcy, Newman was indebted to Charles Henry Thorp and Joseph Thorp, in the sum of 1,400l., being the residue, then remaining due, *of the debt, for the securing of which, Newman had executed the assignment and delivered to them the policies of insurance; and that, at that time, the policy effected with the Equitable Society, was in the hands of Charles Henry Thorp and Joseph Thorp, as a security for their debt; and that, therefore, the bankrupt was not, at the time of his bankruptcy, left in the apparent ownership of the policies, or of the money secured by it; and that the right thereto did not pass to the plaintiffs, as the assignees under the commission: That there was still due and owing to Joseph v. Thorp, as having survived Charles Henry Thorp, upon the WILLIAMS security of the assignment, the sum of 1,460l. including the premiums paid on the policy since the assignment thereof. Arthur Morgan, who was both a clerk and joint actuary of the Equitable Office, was examined for the defendants. He deposed that it was not usual or customary, and that the rules and regulations of the Society did not require that, in order to give effect or validity to assignments of their policies, notice should be given of such assignments to the Society: that although notice of assignments of policies effected with the Society, was sometimes given to the Society, yet the Society had not any books or registers of such notices. Mr. Sugden, and Mr. Pemberton, for the plaintiffs [cited Ex parte Monrot and Ex parte Usbornet]. The Society, not having notice of the assignment, might have safely paid it to the assignor, and therefore the policy remained in his order and disposition. (The VICE-CHANCELLOR: The policy was actually delivered to Charles Henry Thorp and Joseph Thorp.) It was so but if the policy had been lost, the company would, upon proper evidence of that fact, have paid the amount to the insurer. The delivery of the policy does not take it out of the order and disposition of the insurer. [Ex parte The Vauxhall Bridge Company.§] Mr. Horne, and Mr. Barber, for the defendants: * The policy is a covenant with the insured and his assigns; the latter, therefore, may maintain an action on the policy against the insurer. No person can claim the sum insured except according to the tenor of the policy; therefore neither Newman nor his assignees can strike the word "assigns" out of the instrument, and say that it is not an assignable interest. THE VICE-CHANCELLOR : Does the deed constituting the Society contain any stipulation as to the assignment of policies? THORP. [261] [ *262 ] +1 Buck, 300. 1 Gl. & Jam. 358. § 1 Gl. & Jam. 101. None at all. It appears, by Morgan's evidence, that if notice had been given of the assignment, it would not have been attended to. Notice amounts to nothing, unless the office could be affected by it. The office would not have purchased the policy, nor could any one have obtained payment of the sum insured, without a production of the policy, and of the receipts for the premiums. Every thing has been done, in this case, that the nature of the property admitted of to vest the policy in these defendants. THE VICE-CHANCELLOR : The question in this case is concluded by the decisions in the cases that have been cited for the plaintiffs. In Ex parte Monro, the VICE-CHANCELLOR says: "Did the delivery of the bond by the bankrupt take away his power to receive the debt? Certainly not." Supposing that the executor of Newman had obtained payment of the sum insured from the office, could the office have been compelled to pay it over again to Thorp? I see no ground upon which the office could have been compelled to make a second payment. If this Society does not take notice of assignments, it takes all the risk of such conduct upon itself. It appears to me that the question that has been discussed, is concluded by authority. Declare the plaintiffs entitled to the Benefit of the policy of insurance. The question that arose in [this case] again came before the Court .. in . 1830. On the 10th Jan. 1831, the VICE-CHANCELLOR delivered judgment, in which he adhered to his decision in [this case]. 1828. Jan. 18, 29. SHADWELL, [264] BRADFORD v. BELFIELD.† (2 Simons, 264-272.) A trust for sale vested in A., and his heirs, cannot be executed by an assign of A. By indentures of lease and release, dated the 9th and 10th of October, 1794, Nicholas Prout Berry, in order to secure the + See now the Conveyancing Act, 1881, s. 30.-O. A. S. BELFIELD. re-payment of a sum of money advanced to him by William BRADFORD Baker, conveyed an estate, in Devonshire, to George Whidborne (a trustee for Baker) his heirs and assigns; and, by the indenture of release, it was provided and declared that the conveyance was so made as aforesaid to Whidborne and his heirs, upon special trust and confidence in him the said George Whidborne and his heirs reposed, and to the intent and purpose only that he and they should, as soon as to him and them should seem meet, upon request to him or them for that purpose made by Baker, his executors, administrators and assigns, make absolute sale and disposal of the fee simple and inheritance of the estate, in such lots as he and they should think proper, and, out of the purchase-money, in the first place, deduct to him the said George Whidborne, his heirs, executors and administrators, the expenses of executing the trusts, and next, to pay to Baker the principal and interest due to him: and it was provided that the purchasers under the indenture, paying their purchase-money to Whidborne, his heirs, executors, administrators and assigns, should not be obliged to see to the application thereof; but that the receipts of Whidborne, his heirs, executors, administrators and assigns, should be sufficient discharges to them for the same. Whidborne afterwards died intestate as to the estate in question. Nicholas Prout Berry, by his will, dated the 25th of January, 1803, and duly executed and attested to pass real estates, gave to his brother, Thomas Berry (his heir-at-law) the sum of one shilling; to his brother, George Berry, the sum of 10l. a year, to be paid out of two fields, called Rorsden and Ridge, (which were no part of the estate in question): and then concluded his will in the following words :-“I give, unto my brother, William Berry, all my lands, messuages and tenements whatsoever; also all singular my goods and chattels, personal and testamentary estate whatsoever, I give and bequeath unto the said William Berry, whom I make and constitute whole and sole executor of this my last will and testament." After the testator's decease the executors of Baker, (who was then also dead) assigned, the principal and interest secured by the indentures of October, 1794, to the plaintiff, Nicholas Baker; and, in November, 1815, Whidborne's heir, at the [265] BELFIELD. BRADFORD request, and by the authority of the executors only, conveyed the estate to the plaintiff, Bradford, in fee, in trust to sell, and out of the proceeds of the sale, to pay the principal and interest to Nicholas Baker. By a deed dated in April, 1823, William Berry claiming to be entitled to the property under the will of Nicholas Prout Berry, subject to the conveyance made in 1794, in consideration of a further advance of money made to him by Nicholas Baker, confirmed the estate vested in Bradford, and gave him new powers of sale for raising the money originally lent by William Baker, and also the sum afterwards lent by Nicholas Baker. [266] [267] [ 268 ] [ *269 ] In September, 1823, Bradford, in performance of the trust reposed in him, sold the estate to the defendant Belfield: and he having refused to complete his purchase, this suit was instituted to compel him to do so. The Master to whom the title had been referred under the decree reported in favour of it; upon which the defendant excepted to the report. Mr. Sugden, and Mr. O. Anderdon, for the defendant, in support of the exceptions: [The power of selling is confined to Whidborne and his heirs. They cited Townsend v. Wilson,† Hall v. Dewes, and other cases.] Then another point is made, namely, that the devisee of Nicholas Prout Berry confirmed the estate and the powers of sale vested in Bradford. [NOTE. This point appears to have been eventually decided in favour of the plaintiffs, and requires no further notice here.] Mr. Preston, and Mr. Ching, for the plaintiffs, in support of the Master's report. * Mr. Sugden, in reply: # The heir has no greater power than the ancestor had; and if the ancestor could not have transferred the trust, the heir could not do it. Now it is clear that the ancestor could not have appointed a new trustee. As to the argument raised upon the use of the word "assigns" in the receipt clause, it is answered by the decision in Townsend 19 R. R. 39S (1 B. & Ald. 608). 23 R. R. 27 (Jac. 189). |