1856. BEAVAN บ. OXFORD. opinion, I apprehend that the equitable interest which was vested in the judgment debtor passed from him by the assignment to the mortgagee, and that after the mortgagee took that equitable interest, the trustee ceased The EARL of to be a trustee for the judgment debtor, although it might well be that the mortgagee could not charge the trustee for breach of trust until he had given notice of the mortgage. If then the trustee had ceased by the assignment to the mortgagee to be a trustee for the judgment debtor, to that extent the 14th section of the Statute had no application, because the 14th section of the Statute merely applies to stock standing in the name of the judgment debtor, or of some person or persons in trust for the judgment debtor. It seems to me, with great deference to the opinion of the Court of Queen's Bench in that case, that sufficient attention was not paid to the distinction between the existence of the trusts and the remedy against the trustee. The only remaining point upon this part of the case was the point which was attempted to be raised on the 13 Eliz., which Mr. Walker referred to; but I cannot say that I think that point open upon the record; and if it were, I think there is not sufficient certainty upon the evidence to enable us to deal with it here. The case is not one in which there is any ground for granting indulgence to the judgment creditors in the present stage of the case. Another point was raised of considerable importance, and which was argued with great ability upon the right to 1,000l. which Mr. Taylor has in priority to the voluntary Settlement. Mr. Taylor's judgment having been registered subsequently to the judgments of Mr. Anderson and Mr. Layton, it was said that Mr. Taylor could take no part of the 1,000l., except subject to the Vol. VI. N N claims D. M. G. 1856. BEAVAN บ. The EARL of OXFORD. claims of Mr. Anderson and Mr. Layton. This argument rested upon the 2 & 3 Vict. c. 11, which, it was contended, destroyed the effect of Mr. Taylor's judgment. But the object of that Statute was to close the docket roll under which former judgments were docketed, and to complete a perfectly new register, so that the purchaser should have reference only to one register. For this reason the Statute has said that no judgment shall operate unless and until registered; but when it is registered, there is nothing that I can find in the Statute which disturbs the right of the judgment creditor. The consequence is, that the original right in respect of docketing of the judgment is preserved, and is not affected, at least by the Statute 2 & 3 Vict. c. 11. Eland v. Eland (a) was referred to upon the point; but it does not apply. It was a case between legatees and creditors, where a mortgagee having taken, subject to the satisfaction of certain charges, the question arose whether the legatees were to take the amount of the charges, thus reserved from the mortgagee, or whether the creditors had a prior right upon that amount; and the Court held that the reserved amount was to be treated as general assets, subject first to the claim of the creditors before the legatees could come in. I think that authority not applicable, because in that case there was no prior right in the legatees over the creditors. Here there is a prior right in Mr. Taylor as against the other judgment creditors. Upon the whole, therefore, my opinion is that the order upon this petition must be made giving the 1,000l. to Mr. Taylor, and giving the remainder of the fund to the parties claiming under the voluntary Settlement. (a) 1 Beav. 235; 4 Myl. & Cr. 420, S. C. 1856. THIS ROBINSON v. WHEELWRIGHT. HIS was an appeal from a decision of the Master of the Rolls. The object of the suit was to obtain the payment of a legacy of 1,3001. given by the will of John Wheelwright to his daughter the Plaintiff Ann Hoyle Robinson: the following were the facts of the case. Jan. 28, 29. Before The cellor LORD CRANWORTH Lord Chan and The LORDS JUSTICES. A testator gave a legacy to a married woman upon condition that she conveyed within twelve months an estate devised to her by ano ther testator Michael Hoyle, the uncle of A. H. Robinson, by his will dated the 2nd January 1837 devised to his wife and J. Ridehalgh and H. Wheelwright, whom he appointed trustees and executors, and their heirs, his mansion-house called Grove and the lands thereto belonging including for her sepathe Laithfield theretofore belonging to the Turna Top rate use with a clause farm and a plot or allotment of land situate near Turna against anticipation:Top and lately enclosed from the common of Rishworth Held, that the and both occupied with the messuage called Grove upon Court had no trust to pay the rents to A. H. Robinson for her sepa- terfere for the rate use and so that she might not be able in any manner purpose of ento assign over charge or anticipate the same, and after her decease in trust for her children as she should by will appoint, and in default in trust for her first and other sons successively in tail, and in default to her daughters as tenants in common in tail. By a codicil to his will, dated the 27th February 1840, M. Hoyle substituted W. Priestley in the place of H. Wheelwright as trustee and executor. M. Hoyle died on the 25th August 1851. It appeared that previously to the date of his will, and between the date of the will and the codicil, and also 'subsequently to the codicil, M. Hoyle took pieces of land power to in abling the married woman to comply with the condition though to have done so would have been greatly for her benefit. The decision in Wall v. Wall, 15 Sim. 513, observed upon. 1856. ROBINSON v. WHEEL- part of the common of the manor of Rishworth, and that he occupied them with the Grove estate until his death, paying for these encroachments a quit rent to the lord of the manor. On the 27th October 1854 John Wheelwright, the father of A. H. Robinson, made his will containing the bequest upon which the question now to be determined arose: it was in the following terms,-" Whereas my daughter Ann Robinson the wife of John Robinson having been amply provided for by my late brother Michael Hoyle I give to her the sum of 1,300l. to be paid to her by my executors only upon condition that she or her said husband shall give up and absolutely convey or cause to be conveyed all his her or their estate and interest in the encroachments made by my said brother upon the common or waste lands in Rishworth aforesaid adjoining upon the Booth farm and the Turna Top farms in Rishworth aforesaid and devised by my said brother Michael Hoyle unto my said daughters Elizabeth and Sarah in such shares and proportions as shall be determined by the share to be allotted to Elizabeth to be conveyed to John Dyson and Thomas Dyson upon such and the same trusts as are hereinbefore declared in favour of the said Elizabeth Lockwood and her children and the share to be allotted to the said Sarah Horner to be conveyed upon the same trusts as are declared under the will of my said brother with respect to the Booth farm in favour of the said Sarah Horner And I hereby expressly declare that if the above conditions are not or cannot be complied with within twelve months after my decease then that such sum of 1,300l. shall not be paid to my said daughter Ann Robinson." John Wheelwright died on the 10th January 1855. The The present suit was instituted by A. H. Robinson and her husband John Robinson as Plaintiffs against the surviving trustee of the will of M. Hoyle, the executors of J. Wheelwright, and the four children of the Plaintiffs who were infants. The Bill stated that the Plaintiffs were desirous of performing the condition in the will of John Wheelwright so as to entitle themselves to the legacy of 1,3007., and that for that purpose they were willing to do any act or to execute or to cause or procure to be executed any conveyance surrender or other instrument that might be necessary or proper; but that the executors alleged that on account of the interest of the Plaintiff A. H. Robinson in the said encroachments being inalienable the performance of the condition was impossible; and that the said legacy would therefore never become payable. The Bill prayed a declaration as to the construction of the will of John Wheelwright, and that on the Plaintiffs or their trustee executing such deeds and doing such acts as the Court might think requisite for the due and full performance of the condition (which they submitted to do) the executors of John Wheelwright might be decreed to pay the 1,300l. The Bill also contained a statement that the encroachments were of the value of 1201. or thereabouts, and that it would be greatly for the benefit of the female Plaintiff as well as of the infant Defendants that such encroachments should be given up in consideration of the sum of 1,300l. which the Plaintiff John Robinson submitted to settle as the Court might direct for the benefit of his wife and children. The cause was heard by the Master of the Rolls on the 18th December 1855, and on the 20th December 1855 his Honor decided against the right of the Plaintiffs, being of opinion that the Court had no power to release 1856. ROBINSON v. WHEEL WRIGHT. |