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SCOTTISH_HoL_JURY_COURT

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(1816) 4 Dow 248

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session, 1816.

56 Geo. III.

IRELAND.

APPEAL FROM THE COURT OF CHANCERY.

No. 12


Marnell and Another     Appellants

v.

Blake and Another     Respondents

May, 1815; April 1, 8, 1816.

Subject_POWER. — INFORMAL EXECUTION AIDED. — ANNUITY.

In this case a tenant for life, having a power to raise a sum of money, granted an annuity charged on the settled estates till as certain sum should be paid off, without, in the annuity deed, referring to the power. Held that this, under the particular circumstances of the case, was a good, though an informal, execution of the power.

The peculiar circumstances were chiefly, that the settlement gave no directions as to the mode of execution; and that it contained a prohibition against sale or mortgage, which, though it was understood as only a prohibition against sale or mortgage so as to defeat the provisions of the settlement, might have had the effect of inducing the tenant for life to have recourse to the mode of annuity.

Lord Eldon (C.) ( Lord Redesdale concurring) expressly guarding the judgment against being understood as a decision that in all cases, where tenant for life had such a power, the grant of an annuity, without reference to the power, would be a good execution.

Sept. 18, 1779. Indenture of settlement made on the marriage of James Marnell and Honora his wife.

Covenant that the trustees should stand seized of an estate of inheritance in fee simple.

To the use of James Marnell for life.

Remainder to his first and other sons in special tail male.

Remainder to the Appellant, Richard Marnell the elder, in tail male.

Power to James Marnell to raise 1,500 l. by sale or mortgage.

Covenant, that James Marnell, or Richard the Appellant, should not mortgage, or sell any part of the estate during their lives.

Difference between the settlement in the original, and as stated in the printed cases.

By indenture bearing date the 18th of September, 1779, and made between Edmond Marnell, then of Cregan, in the county of Galway, Esquire, and Elinor Marnell his wife, and James Marnell his eldest son and heir, (all since deceased,) of the first part, James Henry Burke, Edmond O'Flynn, Thomas Kelly, and Ulick Burke, Esquires, of the second part; and Honora Morgan, (since decreased,)

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then the widow and executrix of Jeffery Morgan, deceased, of the third part; after reciting (amongst other things) that a marriage was intended to be had between the said James Marnell, and Honora Morgan, and that the said Edmond Marnell then stood seized in fee simple, of the following lands, tenements, and hereditaments, that is to say, Moher, Grallaghduff and Kiltogher, containing 163 acres, Stafford survey, more or less, (which denominations with their appurtenances were reputed, known, and taken as part and parcel of the demesne lands of Cregan Corlack, otherwise Knock-vigue, containing fifty-three acres, like survey, more or less,) Kilcroan Temple, otherwise Ballyglass, containing seventy-three acres, like survey, Gilkagh, containing sixty-four acres of land, Irish plantation measure, more or less, the lands of Carrawin and Carraclogher, otherwise Kilcooley, containing 144 acres, Stafford survey; the said Edmond Marnell, for the consideration therein-mentioned, covenanted and agreed with the said James Henry Burke, and Edmond O'Flynn, that they should stand seized of an estate of inheritance, in fee simple, in possession of and in all the said recited lands and hereditaments, under and subject to the provisoes and agreements therein declared, of and concerning the same, (that is to say,) to the use of the said James Marnell, during the term of his natural life, without impeachment of waste, and from and after his decease, to the use, intent and purpose, that the said Honora his intended wife, should yearly during the term of her natural life, out of the said lands and tenements, have and receive one clear third part of

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said lands, or any other estate or lands that her said intended husband should either purchase or acquire in any manner whatsoever, or whereof he should die seized; and from and after the decease of the said James Marnell, then as to all the said lands and hereditaments, to the use of the first, and every other son of the said James Marnell, on the body of the said Honora Morgan to be begotten, in tail male, charged and chargeable with the judgment debts which then affected said lands, and for default of such issue, then to the Appellant Richard Marnell, the elder second son of the said Edmond Marnell, for and during the term of his natural life, and to the heirs male of his body lawfully to be begotten, with several remainders over; and it was further agreed by, and between all the parties to said indenture, that a sum of 1,300 l. sterling, intended as a provision for the younger children of the said Edmond Marnell, was to be an absolute debt and incumbrance, affecting the said estate and lands until paid off and discharged, and to be at the absolute disposal of the said Edmond Marnell, and payable in manner as thereinafter expressed. And the said Edmond Marnell by said indenture covenanted and agreed with said James Marnell, and the said trustees, that he would apply the said Honora's marriage portion of 1,600 l. sterling therein mentioned, (which he was to receive,) in the discharge and payment of the judgment debts affecting said lands, and in discharging and paying off the said sum of 1,300 l. sterling, intended for the said younger children of said Edmond Marnell; and an annuity of 100 guineas, was thereby made

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payable to the said Edmond Marnell, during the term of his natural life; and the said James Marnell by said indenture, agreed to pay an annuity of 50 l. a year during her natural life, to Elinor Marnell, the wife of said Edmond Marnell, in case she should survive the said Edmond; and after reciting that it might be convenient and necessary for the said James Marnell to have the power of raising a sum of money, it was expressed to be the true intent and meaning of all the said parties, notwithstanding any thing therein contained to the contrary, that it should be lawful for the said James Marnell, at any time thereafter that he should think proper, to raise or borrow any sum or sums of money, not exceeding 1,500 l. sterling, and that without the consent, approbation, or control of the said trustees, or the survivor or survivors of them, or their, or either of their executors or administrators; and it was by the said indenture agreed that no part of the sum of 1,300 l., intended for the younger children of the said Edmond Marnell, should bear interest; and certain portions were thereby provided for the younger children of the said James Marnell; and it was by said indenture further covenanted, that said James Marnell, or the Appellant Richard Marnell, should not mortgage or sell any part of the said estate or lands during their lives, any thing therein contained to the contrary notwithstanding.

This was the statement given in the printed cases of the indenture of settlement, but it appeared that in the original, Edmond Marnell was made to agree with the trustees that they and their executors

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should stand seized of an estate of inheritance, in fee simple, for and during a term of ninety-nine years, and afterwards that the trustees and their heirs should stand seized to the uses of the settlement. It is observable also that, while the instrument gives the power to raise the 1,500 l., it contains a prohibition to sell or mortgage.

Conveyance in fee to James Marnell, who, under the previous provisions of the settlement, had been made merely tenant for life.

The deed was registered on the 3d February, 1780. The marriage took place, and pursuant to a covenant in the settlement, a fine of the lands was levied as of Hilary Term 1780, by Edmond Marnell the father, and Eleanor his wife to James Marnell and his heirs. And by indenture of release 25th March, 1780, reciting the settlement and fine, Edmond conveyed the lands to James Marnell and his heirs.

Bonds and Judgments.

It appeared that Edmond Marnell, the father, was indebted to William Ousley as executor of Sarah Ousley, by bond executed by E. Marnell to Sarah Ousley dated 21st June, 1762, for the principal sum of 200 l. payable with interest in May following. James Marnell the son, was also indebted to Ousley in his own right in a sum of 60 l., to secure the payment of which Edmond and James Marnell gave their joint and several bond and warrant of attorney dated 20th March, 1776, upon which separate judgments were entered up. James Marnell was further indebted to Ousley in a sum of 177 l. 5 s., for which he gave his bond, &c. dated 10th February, 1787, and also in a sum of 162 l. 14 s., for which he gave his bond dated 19th September, 1792. On all these bonds, judgments were entered up. The several sums stated made up the principal sum of 599 l. 19 s.

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Annuity deed 6th June, 1794, charging only part of the lands in the settlement.

Ousley, in case he could not procure payment by the annuity, to be at liberty to resort to his judgments.

Ousley being desirous of calling in the amount of his securities, an indenture, called a deed of rent charge, dated 6th June, 1794, was made between James Marnell and Ousley, by which, after reciting that Marnell was indebted to Ousley by bonds and judgments, in several sums of money amounting in the whole to 744 l. 2 s., it was witnessed that Marnell, in consideration of that sum, gave and granted to Ousley, an annuity or yearly rent charge of 150 l. payable out of, and chargeable upon the lands of Bally-glass and Gilkagh, being part only of the lands mentioned in the settlement, to have and receive the said annuity, &c. until the said sum of 744 l. 2 s. and the interest and costs then due, or thereafter to grow due, should be fully paid off and discharged, and no longer, with power of distress and entry in case the annuity should be in arrear. And it was also agreed that, in case of default of payment at the stated periods, or that the said Ousley, his executors, administrators or assigns, should meet with any legal interruption in the payment thereof, then Ousley, his executors, &c. should be at liberty to resort to the said judgments and proceed thereon, &c. in as full and ample a manner as if the indenture had never been made.

The custodiam proceeding was represented in the Appellant's case as proceeding on the judgment for 177 l. which was that of James Marnell.

When the first gale, as it was called, of the annuity became due, Ousley was prevented from obtaining payment by the interference of other creditors, and, resorting to his judgments, he in 1797, procured a grant in custodiam, as it is called, of part of the estates. But before any rents were paid him, James Marnell, in 1798, died without issue (Edmond Marnell had died in 1795), and his brother,

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Richard Marnell, became entitled to the lands under the provisions of the settlement, and Ousley lost the benefit of his custodiam grant.

In March, 1797, Ousley had assigned the annuity and bonds and judgments to Henry Blake, who had married his daughter, to secure 400 l. as a portion for the daughter.

Bill filed 1801 to have the annuity deed declared an execution of the power.

Prayer of the bill.

In M. Term, 1801, Blake and Ousley filed their bill in behalf of themselves and the other creditors of James Marnell, against Richard Marnell and his son, and the Rt. Hon. Thomas Kelly the only surviving trustee under the settlement of 1779, stating the facts abovementioned, and praying an account on foot of the bonds and judgments; and that what should be found due might be decreed a charge on the lands comprised in the settlement; and that James Marnell might be declared to have, by the annuity deed of 1794, well executed the power to charge the lands; or that the defective execution might be aided by the Court, and that Richard Marnell might be decreed to pay what should appear due by a short day, or that a competent part of the lands might be sold for that purpose, &c.; and that such other creditors of James Marnell as should come in and contribute to the expense of the suit might be paid their debts, &c.

Answer 1809.

Richard Marnell in 1809, put in his answer, and insisted that the grant of the annuity was never meant as an execution of the power, but a mode of paying the debt by instalments out of James Marnell's life-interest; and he submitted that there was no fair consideration for the annuity deed, and that by the statement in the bill itself, only 599 l. 19 s.

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appeared to have been due to Ousley. The son, an infant, submitted his interest to the Court, and Kelly put in no answer.

No notice was taken in the judgment of this extrinsic testimony.

Decree 1811. That the power was well executed by the annuity deed.

After examination of witnesses relative to the intent to execute the power, and some other proceedings not material to be stated, the cause came on for hearing; when the Court, without taking any notice of that part of the bill which related to the other creditors of J. Marnell, on the 25th November, 1811, decreed an account on the foot of the 744 l. 2 s., the consideration money in the annuity deed; and that whatever should appear due was well charged on the lands by the said deed, and that Richard Marnell should pay the sum due in three months, or that the same should be raised by sale or mortgage of a competent part of the lands; and that each party should abide his own costs.

Appeal.

From this decree, Blake, and Mary Ann Ousley, the widow and representative of William Ousley, who had, died in the course of the proceedings, appealed.

It was observed in argument for the Appellants that it was difficult to conceive how the money was to be raised under the power, except by sale or mortgage, and yet both were forbidden. The deed which was said to be an execution of the power contained no reference to it, and the decree made the sum a charge on all the estates in the settlement, though the deed itself had only charged part of those estates. The question was, whether this annuity deed was a good execution of the power. If there was an execution of the power in favour of a volunteer, the Court would give the creditors the

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benefit of it; but where, as in this case, there was no attempt to execute the power at all, the Court would not execute, even in favour of creditors: Holmes v. Coghill, 7 Ves. 499.—12 Ves. 206. Ever since Sir Edward Clere's case, 6 Rep. 17. 6., where one having a power, makes a deed which cannot operate except by the power, then he shall be presumed to have intended to execute the power, though it is not referred to. But it is otherwise where he has an interest on which the deed may operate, Cox v. Chamberlain, 4 Ves. Junr. 631. A total omission to execute a power could not be supplied in equity, though an informality in the execution would be aided, where there was a meritorious consideration. But the question here was whether he meant to execute the power at all. The intention must be clear, and if the person charging the land has, besides the power, an interest in respect of which he could charge the land, independent of the power, then, unless he mentions the power, the act shall be applied to the interest, and not to the power. And here the probability is that he meant only to charge his life interest without reference to the inheritance. He did not pretend to bind any but himself. In the reasons in the printed case, it was further objected that though the suit was in behalf of the other creditors of James Marnell, as well as the Respondents, the decree proceeded entirely on the ground of the annuity deed of 1794—that the deed did not charge all, but only part of the lands comprised in the settlement; and that at any rate it was not intended to be an execution of the power, but the object of it was to give Ousley a right to

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receive his debt by instalments out of part of the lands during the life of James Marnell, and thereby to suspend proceedings on the judgments against J. Marnell, until default in payment of the rent charge—that if the parol evidence were admitted, it would show that the deed had been obtained by undue means, and that the Court ought not, on the mere recital of the deed, to have assumed that 744 l. were due, but ought to have directed an inquiry.

The reasons in support of the decree in the case of the Respondents were these:

1st, The said indenture of the 6th day of June, 1794, ought to be deemed a part execution of the power of charging 1,500 l. given to the said James by the marriage articles of the 18th of September, 1779. By these articles James Marnell had an estate for life, and had also a power to charge the lands of which he was tenant for life, with any sum not exceeding 1,500 l.; it is a principle that where a man hath both a power and an interest, and he creates an estate which will not have an effectual continuance in point of time if it be fed out of his interest, it shall take effect by force of the power, though the power be not referred to by the instrument creating such estate. By the deed of 1794, James Marnell granted the rent charge of 150 l. per annum, till the debt thereby secured should be paid; therefore, as the deed of rent charge, if it were supplied out of his interest, would expire with his life, it ought, on the aforesaid established principle, to operate as an execution of his power.

2d, Because the evidence of the witnesses examined on the part of the Appellants, so far as it

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went to prove that the said James Marnell did not intend, by the deed of the 6th June, 1794, to execute his charging power, was inadmissible (parol evidence being inadmissible to control the legal operation of the instrument, or to explain the intention of the person executing it); and the Respondents submit, that the decree from which the Appellants have appealed would have been more consonant to justice and equity, if it had given costs to the Respondents, as well as satisfaction of the debts so justly due to them.

Sir S. Romilly and Mr. Hart for Appellants;

Mr. Leach and Mr. Dowdeswell for Respondents.

April 1, 1816.

The deed of settlement not a legal conveyance, but merely an equitable contract.

Lord Eldon (C.) I propose at present merely to state what this case is; and here I must observe that in this, as in other Irish cases, one cannot trust a single word they put in print. The indenture of settlement, as stated in the cases, is this—(states the settlement of 18th September, 1779, from the cases as above). In looking at the original deed, however I find it to be—I do not very well know what—not a legal conveyance, but something like an equitable contract. The covenant is that the trustees and their executors shall stand seized of an estate of inheritance in fee simple, for and during a term of 99 years, and afterwards there is a proviso that the trustees and their heirs shall stand seized to the uses. And as to this 1,500 l., one cannot very well see how James Marnell was to raise it. If we were to indulge in conjecture, one would think that it must be by sale or mortgage. But then a proviso was

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inserted that James and Richard Marnell should not sell or mortgage during their lives. So that they had a power to raise 1,500 l. by mortgage or sale, but could not sell or mortgage till they were dead. It is impossible that such an instrument as this can have any effect as a legal conveyance. Equity would perhaps, for the benefit of children, and so forth, make something out of it, so as to enable him to charge the estate by sale or mortgage.

Principle. The tenant for life keeps down the interest. The principal is a charge on the inheritance.

Annuity deed, 1794.

Alternative to resort to the judgments.

Now the principle is that, if the tenant for life so charges the estate, he keeps down the interest, and those entitled to the inheritance are to pay the principal; and it is clear that where one charges under an authority, if the charge cannot be made good out of his interest, it is good by the authority. But then it must appear on the face of the instrument that he meant to execute the power. Now this is a deed of rent charge—so christened on the back of it—by which Marnell gave and granted to William Ousley, an annuity or rent-charge of 150 l. sterling, charged upon all that and those the town and lands of Ballyglass and Gilhagh—not affecting to charge the whole, observe—situate, lying, and being, in the half barony of Ballymoe, and county of Galway, &c. &c. And then there is an agreement, Ousley being a judgment creditor before the execution of this instrument, that in case the annuity should be in arrear, Ousley, &c. should be at liberty to resort to the judgments, and proceed thereon, in as full and ample a manner as if this indenture had not been entered into.

Now, suppose we can get over the difficulties which may arise from this curious instrument of

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settlement, the first question will be whether Marnell, having a power to charge the estates with a sum of 1,500 l. which would make him liable to pay the interest, the person entitled to the inheritance having to pay the principal—whether, if this 1,500 l. was not charged upon all the estates by way of mortgage or sale, but an annuity was granted of 150 l. charged on part only of the estates, until a sum of 744 l. should be paid off— that could be taken as a good execution of the power, and whether, it having happened that the person who granted the annuity died when only one gale, as they called it, had been paid, the person who had dealt with him for this annuity can now turn round and say, “this is a charge on the whole estate, and the 744 l. ought to be raised out of it” and whether, Marnell having a power to raise a sum of 1,500 l. by mortgage or sale, out of the whole estates—that is, having power to do one thing, and having in fact done another, it is to be held that he meant to do that which he had a power to do.

It further appears that he resorts under the last clause in the indenture of 1794, to the judgments and custodiam, as they call it; and then the next question is, supposing this were a good execution of the power, whether, as he has taken advantage of the alternative in the deed, he is not to be considered as having waived his particular remedy by execution of the power.

In the Respondent's printed case, it was slated that Lord Redesdale had been clearly of opinion, when the cause came before him on demurrer below, that the power was well executed.

The question very difficult.

Another point is that, while we are obliged to examine every instrument in these Irish cases, whether printed or not, we are not always accurately informed from the cases of what passed below. This was a

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bill filed to declare this a good execution of the power, and the cause came before two Lord Chancellors, one of whom is here. The defendant demurred to the bill, and one of the cases informs us that Lord Redesdale being of opinion that the deed of rent charge was a good execution of the power, overruled the demurrer. Lord Redesdale is now present, and perhaps it may appear that he gave no opinion at all on the point. Under these circumstances, however, Lord Manners thought this was a good execution of the power. Whether he saw the original settlement or not, I do not know. But your Lordships will have now to consider, 1st, What is the effect of this first instrument; 2d; What is the effect of the next instrument, under the proceedings had upon it by custodiam and otherwise. 3d, Whether, if this was a power to raise by sale or mortgage, and the proceeding upon the judgments was no waiver, whether considering the nature of the annuity transaction, this is, or is not, a good execution of the power; and, if we can find our way through these difficulties to the last question, I do say it is as difficult a question as almost any I ever met with.

April 8, 1816. Judgment.

Object of the bill.

Lord Redesdale, The object of the bill in this case was to have it declared that a sum of 744 l. was well charged on the lands by virtue of a power given to James Marnell by his marriage settlement. The decree is confined to the claim of Blake and Ousley, and does not extend to the whole creditors of J. Marnell, according to the prayer of the bill—and it is appealed from only by Richard Marnell, and his

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son, and therefore we have only to consider that part of the case.

Settlement to be considered merely as an equitable contract.

This instrument of marriage settlement is so extraordinary, so informal, so inconsistent, such a jumble of contract and conveyance, that it is impossible it can operate as legal conveyance, and can be considered only as an equitable contract of settlement of this description.—Edmond Marnell covenants to convey the lands to trustees to the use of James Marnell for life; with remainder to his first and other sons in tail male, reserving certain annuities on the estates; and, in default of such issue, remainder to the Appellant Richard Marnell and his issue, in strict settlement. There was a power to James Marnell to raise a sum of 1,500 l. out of the estates, and the settlement was in consideration of a sum of money, the property of the intended wife; which has been received by Richard; and one object of the settlement was the application of this money in paying off incumbrances.

Whether the annuity deed was an execution of the power.

Decree 1811.

The important question is, whether the sum of 744 l., which was the consideration in the deed of 1794, was effectually charged by James Marnell on the estates; the manner being his granting an annuity, not out of the whole, but out of a part of these estates to Ousley, until he should be paid that sum. There was in that deed a provision that, if Ousley should not be able to get payment out of the rents in this manner, he should be at liberty to have recourse to his judgments, one of which was a judgment of Edmond Marnell. The others were the judgments of James Marnell, which would attach on his interest. In this settlement there was a provision

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in its form absolute, by which James takes the absolute property in fee. But as the settlement was registered, James, though he had the legal estate, would be bound to make a conveyance according to the settlement. The decision of the Court of Chancery was, that it should be referred to Stewart King, Esq. the Master in the cause, to inquire and report, whether any and what sums remained due to the Respondents for principal and interest and costs on foot of the sum of 744 l. 2 s. being the consideration money mentioned in the deed of the 6th day of June, 1794, in the pleadings mentioned. And it was further ordered, adjudged, and decreed, that whatever sum might remain due on foot of the said 744 l. 2 s. should be, and the same was thereby declared to be well charged on the lands and premises in the pleadings mentioned by virtue of the said deed of the 6th day of June, 1794. And it was further ordered that the Appellant Richard Marnell the elder should in three calendar months after the confirmation of the Master's report pay unto the Respondents the sum which should be reported due to them, with interest from the confirmation of the Master's report; and in default of payment thereof it was further decreed, that the same should be raised by sale or mortgage of a competent part of the lands in the pleadings mentioned, and that in such case all proper parties should join in the necessary deeds to be executed on such sale or mortgage. And it was further ordered, that each party, plaintiffs and defendants, should abide their own costs in the cause.

The statement in the Appellant's printed case was, that the proceeding was on the 177 l., which was a judgment against James Marnell.

Nature of a custodiam.

The decree therefore has determined that the

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744 l. was well charged on the estates. Ousley having been unable to avail himself of his annuity, in consequence of the interference of the other judgment creditors of James; and he having a judgment of Edmond which would take place against the judgments of James's creditors, he proceeded by custodiam, and endeavoured to get possession under it. This is a proceeding by which the debtor is outlawed, and the king gets the lands, and grants them to the creditor to hold till he is paid his debt out of the rents. But James Marnell died soon after, and there was an end of that proceeding as the death of the outlaw puts an end to the transaction, and to the grant of the crown.

Then it was objected that this was not an appointment in pursuance of the power; and it was contended that the way in which the land ought to be charged was by sale or mortgage, and not in the form of an annual revenue, which must have the effect of charging the immediate enjoyment, whereas the 1500 l. was meant to be a charge on the inheritance.

Informal execution of a power aided and reformed in equity.

Lady Coventry's case. Fran. Max. 73.—2 P. Wms. 222, &c.

Lady Clifford, v. Earl of Burlington, 2 Vern. 379.

The deed of 1794 provided that the land should be charged with the sum, and was only defective in adopting the mode of annuity, instead of sale or mortgage.

That this was an informal execution of the power there can be no doubt; but where there is an attempt to execute a power, and for valuable consideration, the Courts have considered that the instrument is to be reformed, so as to be an execution in the manner he had a right to execute. Such was the principle of decision in Lady Coventry's case, which was founded on a variety of cases which had been before decided: such as Lady Clifford's case, decided in 1700 by Lord Keeper Wright, where tenant for life, with a power to

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make a jointure of 1000 l. per annum, covenanted to make such a jointure on his wife, and afterwards settled lands accordingly, said to be of 1000 l. value; but proved to be worth only 600 l. per annum. Upon bill by the widow, the Court directed the 600 l. to be made up 1000 l. by the issue in tail. There are several other cases of that kind, from which it is clear that, where the intention to execute appears, and the property is charged, it shall be taken to be an effectual act to the extent of the power. Now, in this case, the deed is defective only in the manner of raising the money. It has no reference to the life of J. Marnell; but only to the time when the money was to be raised. It was an annuity granted out of the lands till the sum of 744 l. should be paid off; and, consequently, it could not be meant to confine the time to the life of J. Marnell. This, therefore, is an instrument which provides that the lands shall be charged with the sum of 744 l., and, being so, though the mode is not that intended by the settlement, yet a Court of Equity will make it a charge according to the mode intended by the settlement.

The case is stronger here, as the legal estate was in James Marnell. The conveyance to James and his heirs was contrary to the settlement; but if a bill had been filed against James, to compel him to execute a conveyance according to the settlement, then there would have been an equity for James, to the extent of his power of charging, of which in his judgment creditors might avail themselves.

On these grounds I think this a right decree, so

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far as it considers the lands to have been well charged; but, on the part of the Appellants, it is objected that the sum due was not 744 l., but a less sum, only 599 l. 19 s. With the impression which I have mentioned, I think the decree ought to be affirmed, with a variation as to the sum charged; for it could not be the intent of James Marnell to charge the lands for more than the sum actually due. Ousley has no equity to support his demand against the irregularity in the mode of execution, except as a purchaser for, valuable consideration; and he is so only to the extent of the judgments. Your Lordships may therefore order, and adjudge that the charge is well made for the sum actually due on the 6th June, 1794, not exceeding 744 l.; but that the Appellants shall be at liberty to falsify as to the amount, and with that variation, that the decree be affirmed. It will then stand as a decree that the sum actually due is well charged on the lands, that sum not exceeding 744 l., instead of 744 l. absolutely. If it does not amount to that sum, the Appellants may show that fact. But farther we cannot go; for as Marnell acknowledged on the face of the instrument, that 744 l. was due, it rests on Appellants to show that a less sum was due.

This not to be taken as a decision that where tenant for life has a power to charge the lands for a given sum, the grant of an annuity without reference to the power, is to be held in all cases a good execution.

The mode of execution by annuity may have been suggested by the prohibition to sell or mortgage.

Lord Eldon (C.) In this case, which I have before, it will be remembered, represented as one of great difficulty, I accede to the proposition of the noble Lord. But at the same time, it must not be understood, that we mean to hold that, where tenant for life has a power to change lands for 1,500 l. or any other given sum, the grant of an annuity out of these lands is, in all cases, to be taken as a good

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execution of the power. That is not my meaning, nor, as I understand him, that of the noble Lord; but merely that, in the very particular circumstances of this case, it may be so taken.

I have already stated that the deed of settlement, considered as a conveyance, is nonsense from the beginning to the end. But looking on it as an equitable contract, it gives J. Marnell a power, in some way or other, to charge these lands with a sum of 1,500 l. In what way, it is very difficult to say, unless you reject the proviso that he should not sell or mortgage, and it is not impossible, that he might have resorted to the mode of execution by annuity, on account of the clause in the deed forbidding him to sell or mortgage. In this case, I think J. Marnell did mean to execute the power; and if it appears from the instrument that such was the intent, it is not necessary that he should refer to the power; for, if he meant to execute, you will refer the act to the power. And the mode too would have been the most beneficial one for the inheritance if he had lived; for if the money had been raised by way of mortgage, the principal would have been a charge on the inheritance, and he would have had only to keep down the interest.

Another consideration is, and for that we are indebted to the noble Lord, that it happened that James Marnell had the legal estate. Whether he ought to have had it or not, is another question. But still he had it, and it would be very difficult to compel him to execute a conveyance according to the settlement, without allowing him to charge in this way. But it is not to be understood that,

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generally where a tenant for life has a power to charge land to a certain amount, that he may execute the power by granting an annuity or rent-charge.

No direction here as to the mode of execution.

Lord Redesdale. This case is totally different from the generality of other cases, for there is no direction how to execute the power. It is merely that he shall have a power to charge to that amount; and the meaning of the proviso that he should not mortgage or sell must be, that he should not mortgage or sell so as to defeat the provisions of the settlement; otherwise it would be absurd to say that he should have such a power, and yet should not mortgage or sell, and probably J. Marnell might have been led into this mode of execution by this extraordinary proviso.

Appeal dismissed, and the decree affirmed, with liberty to the Appellants to falsify the amount of the sum charged.

Solicitors: Agent for Appellants, Benbow and Alban.

Agent for Respondent, Windus.

 1816

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