1840. Feb. 14, 15. SHADWELL, MANGLES v. THE GRAND COLLIER DOCK COY. 1841. Dec. 4. SHADWELL, [ 563] PERKIN v. STAFFORD. (10 Simons, 562-563.) If some of the defendants in a foreclosure suit disclaim, the Court will decree them to be foreclosed, and not simply dismiss the bill as against them. THE original bill was filed, by the personal representative of the mortgagee against the mortgagor, to foreclose a mortgage, for 500 years, of certain tenements in the borough of Southwark. The defendant appeared to the bill, but died, before he had answered it, having devised the mortgaged premises to William Stafford in fee, in trust for his widow, Mary Ann Stafford, and appointed them executor and executrix of his will. The plaintiff, thereupon, filed a bill of revivor and supplement against William Stafford, Mary Ann Stafford and Thomas Stafford, the younger (the testator's heir); and they put in a joint and several answer, admitting the plaintiff's title and the will, but disclaiming, on the part of the widow and heir, any interest in the mortgaged premises or the equity of redemption thereof. Mr. Girdlestone, for the plaintiff, contended that a decree of foreclosure ought to be made against the two defendants who had disclaimed, as well as against the other defendant. He referred to 2 Daniell's Prac. 235, 236, and also to Collins v. Shirley (1), and Ablett v. Edwards (2). Mr. Wakefield, for the defendants, contended that a decree of foreclosure ought not to be made against the defendants who (1) 32 R. R. 307 (1 Russ. & My. The decree in Collins v. Shirley, after that, on non-payment, by the defendant who had not disclaimed, of the amount found due and of the plaintiff's costs, within the usual time, that defendant should be foreclosed. The decree in Ablett v. Edwards, recited and decreed in like manner, except that it ordered the plaintiff to pay the disclaiming defendant's costs, and add them to the mortgage-debt. had disclaimed, but that the bill ought to be dismissed, as against them, with costs. The VICE-CHANCELLOR held that the plaintiff was entitled to have a decree of foreclosure made against the defendants who had disclaimed, as it was of essential importance to his title. The minutes of the decree, after reciting that the widow and heir had, by their answer, disclaimed all interest in the premises, proceeded to foreclose them; and then directed an account to be taken of the principal and interest due on the mortgage, &c., and decreed that, on non-payment thereof and of the plaintiff's costs within the usual time, William Stafford should be foreclosed. PERKIN V. STAFFORD. BANKES v. THE BARONESS LE DESPENCER, AN (10 Simons, 576-594; S. C. 9 L. J. (N. S.) Ch. 185; 4 Jur. 601; further directions 11 Sim. 508-526; 7 Jur. 210.) 1840. March 5, 6, 10. SHADWELL, 1843. Feb. 13. Further Directions. SHADWELL, V.-C. Lord Le Despencer being seised of the ancient barony of Le Despencer in fee, conveyed real estates to trustees, in trust, after the death of him- Jan. 14, 24, 25. self and his eldest son, to settle the estates to the use of such persons, for such estates, and in such manner that the same should, so far as the law would permit, be strictly settled so as to go along with the dignity of Le Despencer, so long as the person possessed of the same dignity should be a lineal descendant of the settlor, and be held and enjoyed by the person for the time being possessed of the same dignity, and being such lineal descendant as aforesaid; and that, during every suspension or abeyance of the same dignity, within the limits prescribed by law for strict settlements, the rents of the estates might be equally divided amongst the co-heirs per stirpes of the person or persons respectively, by reason of whose death or deaths without issue male, such suspension or abeyance should be, for the time being, occasioned. Held, that the above trust was not void for remoteness; and on further directions the form of a proper settlement was settled and approved by the Vice-Chancellor. By indentures of lease and appointment and release, of the 7th and 8th of August, 1826, [certain manors, messuages, and other hereditaments in the county of Kent, were limited] to the use of Thomas Lord Le Despencer and his assigns, for his life, without impeachment of waste (except voluntary waste) and, immediately after the decease of Thomas Lord Le Despencer, to the use of Thomas Stapleton and (1) Stanley v. Coulthurst (1870) L. R. 10 Eq. 259, 39 L. J. Ch. 650, 23 L. T. 761; Sackville West v. Holmesdale (1870) [576] [579] BANKES v. LE his assigns, for his life, without impeachment of waste (except voluntary waste), and immediately after the decease of the survivor DESPENCER. of them, to the use of the Earl of Roden, H. R. Pakenham, and the [ *580 ] [ 581] * plaintiffs W. J. Bankes and J. H. T. Stapleton, their heirs and Thomas Stapleton died on the 1st of June, 1829, leaving issue one child only, the defendant Baroness Le Despencer. Thomas Lord Le Despencer died on the 3rd of October, 1831. After Lord Le Despencer's death, the plaintiffs who, by the disclaimer of Lord Roden and H. R. Pakenham, had become the sole trustees of the indenture of the 8th August, 1826, [instituted this suit] against all the surviving lineal descendants of the late Lord Le Despencer, praying that the trusts of the indenture of the 8th of August, 1826, might, so far as was necessary, be carried into execution under the decree of the Court; and that the rights and interests of all parties in the manors and hereditaments, might be declared, and that a proper settlement, conveyance and assurance thereof in pursuance of the trusts of the indenture, might be settled, prepared and executed under the direction of the Court. By the decree at the hearing, the following, amongst other inquiries, were directed: In what manner the Barony of Le Despencer was created, and who was then entitled to the same, and to whom, and in what manner the same stood limited and was descendible: what lineal descendants of Thomas Lord Le Despencer were living at each of the three periods after mentioned, namely, the date of the indenture of the 8th of August, 1826, at Lord Le Despencer's death, and at the date of the report, and which of them might succeed to the dignity of Le Despencer. The Master found that the Barony of Le Despencer was created, by writ of summons, in the person of Hugh Le Despencer, Chief Justice of England, in the 49 Hen. III., and was, afterwards, restored and confirmed, by letters patent of 2 Jas. I., in the person of Maria Fane, only daughter and heiress of Henry Baron of Abergavenny, who was a lineal descendant from Hugh first Baron Le Despencer; and that it was descendible to her heirs general. The Master further found that, at the date of the indenture of the 8th of August, 1826, Lord Le Despencer had four sons and five daughters living; that all of them were living at his death, except his three eldest sons, of whom the second alone had died without issue; and that all his other children (except one of his daughters, who had died without issue) were living at the date of the report; and that Lord Le Despencer had several grandchildren living at each of the before-mentioned periods; and that all his issue then living, might succeed to the dignity. It appeared too, from the report, that the co-heirs presumptive of the Baroness Le Despencer, were the four daughters of the late Lord's third son, and that his fourth and only surviving son had issue two sons and two daughters. The cause now came on to be heard for further directions. Mr. G. Richards and Mr. Follett, for the plaintiffs, the trustees of the deed of the 8th August, 1826. Mr. Knight Bruce and Mr. Loftus Wigram, for Sir Francis Jarvis Stapleton, the youngest and only surviving son of the late Lord Le Despencer. Mr. Wigram and Mr. Sharpe appeared for the daughters of the late Lord Le Despencer, and their husbands. Mr. Jacob and Mr. Tyrrell, for the Baroness Le Despencer, who was born at the date of the deed of August, 1826. BANKES ጥ. LE DESPENCER. [ *582 ] [585] * BANKES C. LE DESPENCER. [586] [589] March 10. [ *590 ] Mr. Girdlestone and Mr. Lee, for the four daughters and only issue of the late Lord Le Despencer's third son, three of whom were born at the date of the deed of August, 1826. Mr. Knight Bruce, in reply, said that either the direction for making the settlement, could not be carried into effect at all, or that the utmost that the Court could do, was to give a life estate to the Baroness: that it could not give her an estate tail, as it was impossible so to mould that estate as to make it go along with the title. THE VICE-CHANCELLOR: Since this case was opened, I have had time to look into the question, and my opinion remains the same as it was from the first, namely, that it is a case in which it is the duty of the Court to try to give effect to the intention of the parties by making a settlement. The words of the trust on which the question arises, are that the trustees should, after the decease of the survivor of Lord Le Despencer and Thomas Stapleton, convey, settle and assure all the manors and other hereditaments thereinbefore apppointed, granted and released, to the use of such persons, for such estates, and with, under and subject to such powers, provisoes, declarations and agreements, and in such manner, in all respects, consistently with and in order to effect the intention of the settlors, that the same estates should, so far as the law would permit, be strictly settled so as to go along with the dignity of Le Despencer, so long as the person possessed of the same dignity, should be a lineal descendant of the said Thomas Lord Le Despencer and be held and enjoyed by the person for the time being possessed of the same dignity and being such lineal descendant as aforesaid. If it had stopped here, there would have been no doubt that the Court would have directed a settlement to be framed for the purpose of effectuating the general intention of the parties, the meaning of which no human being can doubt. Many instances may be found in which the Court has given effect to the intentions of parties expressed in the like general manner. In The Countess of Lincoln v. The Duke of Newcastle (1), for example, it was not even suggested that the Court could not (1) 4 R. R. 31 (12 Ves. 218). |