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[*]CHAPTER III.

PRESUMPTIONS OF LAW CONTINUED.

Of the Presumption with respect to the Exoneration

of Real Estates from Charges or Incumbrances ; First, where they are paid off by Tenant for Life; Secondly, where by tenant in Tail.

When tenant for life of an encumbered estate pays off the encumbrance, the presumption of law is, that he does not thereby intend to exonerate the estate. This presumption arises from a consideration of the scantiness of his interest, and that the exoneration would operate solely for the benefit of strangers(a). In the absence, therefore, of any thing to rebut the presumption, he is regarded as the mere substitute of the former encumbrancer, and a creditor on the estate to the amount of the money advanced(6).

(a) i Ves. jun. 233. 4.

C. ; Ware v. Polhill, 11 Ves. 257, (6) Kirkham v. Smith, i Ves. 274. &c. ; St. Paul v. Lord Dudley 258; Amesbury v. Brown, ib. 477, and Ward, 15 Ves. 167; Reding480-1; Jones v. Morgan, 1 Bro. ton v. Redington, 1 Ball. and Be. C. C. 206, 218 ; Lady Shrewsbu- 131, 141; Earl of Buckinghamry v. Lord Shrewsbury, 3 Bro. C. shire v. Hobart, 3 Swans. 186, C. 120, 126 ; 1 Ves. jun. 227, S. 199.

With respect to tenant in tail, who pays off an encumbrance, [*](unless he be incapable of suffering a recovery, in which case(a), equity accounts him tenant for life only,) the presumption is in favour of an intention to exonerate the estate : for as tenant in tail possesses the means of acquiring the absolute dominion, and may, by recovery, convert the estate tail into á fee simple, he is, for the present purpose, considered to occupy

the same position with the owner of the fee(6): and as the discharge of an incumbrance by the latter would be virtually a satisfaction of his own debt : the like act by tenant in tail, he having no immediate interest in keeping the charge on foot, is construed to be done with a view to exoneration(c).

To repel the presumption in each of the foregoing cases, evidence of intention, either direct or circumstantial, is admissible. Thus, if it

appear

that tenant for life, at the time he paid off the debt, merged the security by taking either an assignment or conveyance to himself; upon this transaction prima facie, the charge is determined(d). So the existence of a relationship by blood, hetween the tenant for life and the

persons entitled next in remainder, coupled with an apparent desire, on the part of the former, to preserve the estate in the family, is evidence of intention to disencumber. [*]And therefore, where a person, who, from mistake, thought himself tenant for life only, but was

(a) Lady Shrewsbury v. Lord (c) See 3 Bro. C. C. 125; 1 Shrewsbury, 3 Bro. C. C. 120. Ves. 260; and the cases cited in See also 3 Swans. 200.

the last reference. (b) See 3 Bro. C. C. 125. 6 ; (d) See per Lord Eldon, 15 Ves. 1 Bro. C. C. 218; 1 Ves. 480.

jun. 173.

in fact tenant in tail, with remainder over to other branches of his family, gave his own bond to secure a debt, which, with several other debts, had been before charged on the estate, and afterwards paid it off ; on a dispute between his administrator and the succeeding tenant, whether or not the debt remained a charge on the estate, evidence that the deceased tenant for life had, through a long series of years, paid on account of interest, for debts charged on the estate, sums considerably exceeding the amount of the rents and profits, was received as testimony, serving to show the wish of the party to prevent the estate being sold : and Lord Thurlow, assuming, for the sake of argument, that the person who discharged the debt was only tenant for life, declared himself of opinion, that the circumstances of the case altogether were sufficient to rebut the equitable presumption. A tenant for life, said his Lordship, paying off a charge, without taking an assignment, is, generally speaking, a creditor for the sum so paid ; but the smallest demonstration of intention to pay it off will prevent his representative from coming for the money. Here the party paid interest much beyond what the profits of the estate would have discharged, which is a demonstration, prima facie, that he meant to disencumber the estate. Though he was only tenant for life, he knew it was settled on his family, and put himself to extraordinary inconvenience to pay the debt off; and this he did for seventeen years (during all which time, as tenant for life, he [*]might have called for a sale), in order to preserve the estate (a).

(a) Jones v. Morgan, 1 Bro. 126 ; 1 Ball and Be. 143. C. C. 206. See also 3 Bro. C. C.

But it must be observed, that from the mere fact of consanguinity between the owner of the particular interest, and the persons in remainder, or as it is called the situation of the estate, the inference of an intention to exonerate does not arise. Accordingly, in Wyndham v. Earl of Egremont (a), a charge which had been paid off by tenant for life, who was also entitled to the absolute reversion, subject to remainders in tail to his first and other sons, was held not to be merged for the benefit of the heir, to whom (there being no issue) the estate descended.

In the case of an encumbrance paid off by tenant in tail, the presumption may be met by showing, that the security was assigned in trust for the party and his executors and administrators. For as an assignment in trust to attend the inheritance is deemed conclusive of an intent to disburden the estate, an assignment in the manner now supposed.is accounted evidence of intent to keep the charge on foot for the benefit of the personal representatives (6). It also seems, that a request to the encumbrancer to transfer, or steps taken to obtain a transfer from bim, of the security, or a declaration of trust executed hy the encumbrancer, to hold specifically for the use of the tenant in tail, will lead to the same conclusion (c). Again, the circumstance [*]of the party mistaking the nature and extent of his interest, will, in some cases, be effectual to rebut the presumption. Hence, where tenant in tail, imagining himself to possess the fee, paid off a mortgage (but without taking a re-assignment of the

(c) See 3 Swans. 199, 200.

(a) Amb. 753.
(6) See 1 Ves. 260, 480.

term), and then settled the estate on his daughters; the mortgage, after his death, was held, as against the remainder man, to continue a charge on the property (a). And so in a late case, where tenant in tail supposing, that under an appointment made in exercise of a power, but which was defectively executed, he had the absolute ownership, discharged a sum due from the estate for portions ; it was decided, that as no surrender of the term had been made, the encumbrance remained in existence for the benefit of his personal representatives (6).

It may be added, that where there are several encumbrances, the amount of which equals, or nearly so, the value of the estate on which they are secured, the payment of one of the early charges by tenant in tail will not necessarily be taken as made with a view to exoneration ; since the interest of the party may be materially concerned in preserving the debt alive (c) (1).

(a) Kirkham v. Smith, 1 Ves. v. Hobart, 3 Swans. 186. 258.

(c) See Forbes v. Moffatt, 18 (b) Earl of Buckinghamshire Ves. 384.

(1) Starr v. Ellis, 6 John. Ch. 393. Burnet v. Denniston, 5 Johın. Ch. 35. Mills v. Comstock, 5 Johns. Ch. 214. James v. Johnson, 6 Johns. Ch. 417. Wade v. Howard, 6 Pick. 492. Freeman v. Paul, 3 Greenl. 260. Lockwood v. Sturdevant, 6 Con. 373.

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