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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robert Hill and Others v. William Paul and Another [1841] UKHL 2_Rob_524 (06 October 1841) URL: http://www.bailii.org/uk/cases/UKHL/1841/2_Rob_524.html Cite as: [1841] UKHL 2_Rob_524 |
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Page: 524↓
(1841) 2 Rob 524
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1841.
2d Division.
(No. 21.)
[Heard,
Counsel: [
Lord Advocate —
Knight Bruce.]
[
Attorney-General.]
Subject_Deed. —
Under a general conveyance in trust for creditors, of all “means and estate presently belonging to me,” with clauses suited to such a conveyance, held, that the future fees of a public office enjoyed by the granter, which was not in any way alluded to in the deed, were not carried by it.
Subject_Id. —
A clause in a conveyance in trust for creditors binding the granter to execute such “farther deeds as may be judged necessary for more effectually carrying the purposes of the present trust into full execution,” is for farther assurance only of that which is de facto conveyed, and will not oblige the granter to execute a farther conveyance of other estate.
Subject_Pactum lllicitum. — Public Officer. —
Semble, That an assignment by a keeper of a register of sasines, of the fees of his office in trust for his creditors, would be illegal.
Statement.
In the year 1792, Hill was appointed keeper of the register of sasines for the county of Renfrew, &c. in conjunction with Fotheringham, with reversion to the longest liver. The proportion of emolument drawn from the office by Hill was, under a family arrangement, as alleged by him, payable to his mother for her life, and after her death to his unmarried sisters, so long as any
Page: 525↓
In 1830, Fotheringham died, and Hill became sole patentee of the office, but, as also alleged by Hill, on this event the proportion of fees became applicable to the same trusts as Hill's original share.
In March, 1835, the last of Hill's sisters died, his mother having died some time previously.
In the year 1826, Hill, having fallen into embarrassed circumstances, executed a deed on the 28th of October in that year, in favour of Paul, and M'Kersey deceased, as trustees for his creditors, under which Paul entered into possession.
Hill's name had all along appeared as keeper of the register in every almanac and county list, but whether Paul and the creditors were aware at the date of the trust-deed in 1826, that he held the office, did not appear.
In May, 1835, Hill opened a negotiation with Paul for a discharge by his creditors, and an allowance from the fees of his office was part of the consideration offered by him. This negotiation went off, and then Paul required Hill to account to him for the whole of the fees of the office, as falling under the trust-deed; this he did by letter written in July, 1835.
In August, 1835, Hill resigned the office, and a new patent was issued in favour of Graham and Hill's son, under reservation of an annuity of L.300 to Hill. The object of this was confessedly to secure the office to the son, by reason of Hill's infirm state of health.
In January, 1837, Paul brought an action to have it found that Hill was bound to account to him for the fees drawn by him from the death of his last sister, and
Page: 526↓
The deed under which Paul brought this action conveyed, “heritably and irredeemably, all and sundry superiorities, lands and heritages, debts heritable and moveable, and whole goods, gear, sums of money, and effects, and, in general, my whole means and estate, heritable and moveable, of whatever nature or denomination, or wherever situated, presently belonging to me; and in particular, without prejudice to the said generality, all and whole,” here followed a particular enumeration of lands conveyed, “together with all right, title, and interest, claim of right, property, and posesssion, petitory and possessory, which I, my predecessors or authors, had, have, or any ways may have, claim, or pretend to the lands and other heritages, and others, generally and particularly above disponed, or to any part or portion thereof; surrogating and substituting the said trustees in succession in my full power, right, and place of the whole heritable and moveable estates and effects above disponed and assigned, with full power to uplift and discharge the rents and feu-duties of the said lands and others for crop and year 1826, in so far as the same are still outstanding, and all future crops and years, and also all arrears of rents and feuduties, due for bygone crops and years, to intromit with the personal estate hereby conveyed, compound, transact, and agree, or enter into arbitration concerning the said lands and estate, real and personal, or any part thereof, and generally to do every other
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“Moreover, I do hereby make and constitute my said trustees, in trust for the uses and purposes foresaid, and their disponees, my cessioners and assignees, not only in and to the whole writs, rights, and evidents, title-deeds, and securities, old and new, concerning the said lands and others above disponed, with the whole clauses of warrandice, and other clauses, tenor, and contents thereof, and all that has followed, or is competent to follow thereupon;
Page: 534↓
but also in and to the rents, maills, and duties, customs, and casualties, due or payable for or forth of the said lands, for crop and year 1826, and all arrears of preceding crops and years, and in and to the tacks of the said lands, and whole prestations therein contained incumbent on the tenants thereof, and all diligence and execution of the law competent to follow thereupon; surrogating and substituting my said trustees in my full right and place of the whole premises, with full power to them to do every thing requisite for completing and establishing the absolute right and property of the said lands and others, and titles to the same, in their persons, and for making the rents thereof effectual, in the same manner, and as fully and freely in all respects as I could have done myself before granting these presents: Which lands and others above disponed, with this disposition thereof, and resignation and infeftments to follow hereupon, and assignation to the writs and evidents, I bind and oblige me and my heirs to warrant to my said trustees, for the uses and purposes foresaid, and to their assignees, at all hands, and against all deadly, and the assignation to the personal estate, and the rents, maills, and duties of my said lands, from my own proper facts and deeds only; and I specially empower the said William Paul, or other trustee acting for the time, to call for and receive the whole foresaid writings and evidents from all persons whatever, in whose custody and keeping the same may be.”
Hill pleaded as a preliminary defence, among others, that the trust-deed did not give any title to pursue the action.
The Lord Ordinary, (Jeffrey,) after hearing parties,
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“The Lord Ordinary, having heard the counsel for the parties on the preliminary defences, repels the defence or objection to the title of the pursuer, founded on the allegation, that the trust-deed in his favour did not convey any of the profits or emoluments of the office then vested in the trustee, which occurred subsequently to the date of that trust-deed: And, 2do, In respect that all the other defences pleaded as preliminary, either depend on disputed matters of fact,
_________________ Footnote _________________
1 “ Note. — The question of title is not without difficulty. But the “Lord Ordinary is of opinion, that the defender, Hill, being at the date of the trust vested in a life office, which he executed by deputy, and which yielded large though fluctuating annual profits, is to be regarded as the owner of a life annuity, which, he apprehends, would clearly have been carried, by the general conveyance of his whole moveable property and estate of every description, to his trustee. That he was under a previous obligation to account for a part, or even the whole of these profits, to his sisters during their lives, would not bar the effect of this conveyance, as the radical right to them was still in his person, as incident to the office itself, of which he was the only holder. If such previous obligation was onerous and unchallengeable, it was still but a temporary burden upon his primary right; and that being onerously conveyed to his trustee, such conveyance would take effect as soon as the burden was worked off, just as the conveyance of a fee, under the burden of a liferent, would vest the radical right in the disponee from the first, though its actual enjoyment must be postponed till the liferent was run out. If the whole profits were not so pledged to the sisters, or if their right was not onerous, the form of the action seems sufficient to make the defender, Hill, still account for them to the pursuer.
As to the objections raised on the terms of the act 49 Geo. III. cap. 126, as to the sale or brokerage of offices, the Lord Ordinary is satisfied that it has no application to such a case as the present. The provisions in the 11th section of that act, are plainly referable only to the case of a party privily stipulating for a share (or the whole) of the profits of an office, which, by his resignation or instrumentality, is obtained or secured for another, and not to that of one who, like the present pursuer, is seeking to vindicate for their true owners, profits actually drawn by persons, who, in law and justice, are bound to account for them to others. At all events, this is a question upon the construction of a public statute, which must form, if insisted on, an important part of the discussion on the merits of the case, and could not with any propriety be disposed of as a preliminary and exclusive plea.”
Page: 536↓
Reclaiming notes were presented against this interlocutor, on which the Court, before farther answer, appointed the parties to give in minutes of debate “on the question, whether to any or to what effect and extent the emoluments of the office referred to were, or could be, carried by the trust-conveyance to the pursuer libelled on.”
On advising the minutes, the Court pronounced the following interlocutor on 15th November, 1838:—
“The Lords having resumed consideration of this note, with the minutes of debate and the other proceedings, adhere to the interlocutor complained of, and refuse the desire of the notes, reserving all questions as to expenses.”
The defenders in the action appealed against the interlocutors of the Lord Ordinary, and of the Court.
Appellant's Argument.
The Appellant. — I. The deed in the respondent's favour does not contain any mention of the office in question, and the respondent, on his own shewing in his summons, was not aware of the appellant, Robert Hill's, right to the office at the time the deed was executed. However unlikely that ignorance might be, considering the nature of the office, it is sufficient, coupled with the want of any words in the deed mentioning the office,
Page: 537↓
II. The obligation upon Robert Hill to grant supplementary deeds was not intended to operate of itself any conveyance, but merely to make effectual the conveyance in the prior part of the deed, by obliging the granter to do what might be necessary for that purpose. The action is not in form to compel implement of this obligation, but proceeds on the assumption that a valid conveyance had been made out and out.
III. The office itself might come within the terms “means and estate presently belonging to me;” but an office of the nature of keeper of a register, in which seriously responsible duties have to be performed, and
Page: 538↓
IV. At all events, whatever right might by possibility be passed by the trust-deed, as against Robert Hill, that deed cannot affect the office in the hands of Graham and Hill, junior, the new patentees, under their grant from the crown. They were not parties to the trust-deed, and while the grant stands unreduced, the office is theirs,
Page: 539↓
Respondent's Argument.
The Respondent. — I. The respondent does not make any claim to the office, though if he were making such a claim, it would not lie in the appellant R. Hill's mouth, to dispute it on the ground of the inalienability of the office, seeing that if carried by the trust-deed, he is bound to warrant the conveyance. It is the emoluments of the office which the respondent claims. If the office had been saleable, the words of the deed would have been sufficient to carry it and the emoluments; why, then, are they not sufficient to carry the emoluments without the office, which is not saleable? Though the office itself is not adjudgeable, there is nothing to prevent the rights and interests flowing from it to the holder from being adjudged; Hunter v. Gardner, 5 W. and S. 616. The emoluments arise not ex contractu with the parties using the record, but virtute officii; no doubt the fees in some sense are not due till earned, but they arise out of a right which existed at the date of the trust-conveyance, and the terms of that deed are sufficiently comprehensive to embrace that right. The purpose of the deed was a general conveyance for payment of creditors, any attempt to limit its terms by reason of any particular enumeration, is to go against its express object, and is excluded by the words “without prejudice to the said generality”.
II. The plan of the trust-deed was a general comprehensive
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III. If Hill could be trustee for his sisters, why not for his creditors? He might unquestionably have made payments from time to time out of the emoluments towards discharge of his debts, why, then, may he not enable another to do so for him? It does not necessarily follow that what is not attachable is not assignable.
Ld. Chancellor's Speech.
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It appears from this statement, that at the date of the trust-deed in 1826, Robert Hill was entitled for life to the office, but that the profits of it were to a great extent, if not the whole of them, applicable to other purposes, and that his prospects of any considerable income from it, were expectant upon the decease of his brothers and sisters in his lifetime. The first question, and that upon which the case was decided below, is, Whether the trust-deed included the profits, and it is competent in putting a construction upon that deed, to consider the circumstances in which the defender and his property were placed at the date of it. There is not in the deed any mention of the office, and it is matter of dispute, whether the pursuer and the creditors of Robert were aware that he held it. It is not very probable, that the persons with whom he was so connected, were ignorant of it, but still there is no proof that they knew it; had their knowledge of it appeared, it would have been impossible for the pursuer to contend, that there was any intention of affecting the future profits of the office by this deed. The peculiar circumstances of the property so intended to be affected, would necessarily have called for, and produced very special and peculiar provisions in the deed; but still, although the creditors might know nothing of this property, and therefore have entertained no intention respecting it, the terms of the deed might have been so general, and so calculated to include it, as to have been binding upon the defender, if there were no objection in law to his so dealing with the future profits of his office. In that case the general intention
Page: 542↓
Now, it is not in dispute, that the office itself being held under the crown, and for public purposes, was not assignable; and the question is, Whether the future profits are included in the terms of the deed, for, whether the defender was entitled to any part of such profits in possession, or was as to the whole in expectancy only until the death of the survivor of his brothers and sisters, the whole which could have been the subject of assignment consisted of profits thereafter to arise, and not any property in possession — but the terms of the deed are, “And in general my whole means and estate, heritable, and moveable, of whatever nature or denomination, or wherever situated, presently belonging to me.” — If the office had been assignable, it might have been included in these terms, it would have been “means and estate presently belonging” to the author of the deed, and, of course, all future profits of the office would have passed as part of it. But as the office did not pass, how can these words be made applicable to profits thereafter to arise from the office which, it is admitted, continued with the original holder? Suppose there had been from this general description, some particular property excepted, could it have been contended, that future profits arising from such property were included? The office must be considered as excepted, because it was not by law assignable, which the parties must be supposed to have known.
If it were necessary to resort to other parts of the deed, to aid this construction of the terms used in describing the property intended to be included in it,
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It seems, indeed, to have been felt that there was great difficulty in bringing the future profits within the terms used, but it was said, that the deed contained a provision for the trustees to grant such farther deeds as might be necessary, which obligation it was said, “perfected the general one, although there was no specific conveyance of the emoluments of the office”. It appears to me, that the provisions in question, cannot have any such effect; it is merely a clause for farther assurance of what was intended to be included in the prior grant, and was not intended to affect any property not included in it. If the description included the profits in question, no farther deed could carry it farther; and if the former description did not include it, this provision has no reference to it. The farther deed is “for the more effectually carrying into execution the purposes of the present trust.”
If the only question had been what I have hitherto considered, I must have adopted the opinion of Lord Medwyn, opposed as it is to the high authority of Lord
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That such an assignment would be held to be illegal and void in England, is not the subject of doubt. No two cases can be more similar than this case and that of Palmer v. Bate, in 2d Broderip and Bingham, 673. The cases there cited, supersede the necessity of my referring to others, except that I may mention Lord Eldon's observations in Davis v. Duke of Marlborough, as I do not find them referred to in the former case. Is there then any difference between the laws of the two countries upon this subject? The rule is established upon principles of public policy, applicable equally to both; but where is the decision that established, that all the future profits of an office which cannot itself be assigned, may be transferred by the holder of the office to his creditors. Erskine, in Book II, title 12, section 7, says,“That offices of trust conferred during pleasure, or for life upon personal regard, cannot be apprised or adjudged;” and in Book III, title 6, section 7, he says, “The King's pensions are not arrestable, because they are alimentary, and, indeed, all salaries annexed to offices, in so far as they amount to no more than a reasonable allowance, for the decent support of those who are named to them, ought, upon the same ground to be accounted alimentary.”
The principle therefore upon which the English decisions have proceeded, is to be found in the law of Scotland, as might well be expected, but it happens that the very case now under consideration, has received a judicial decision by the Court of Session. In Wilson v. Falconer, on 7 th December, 1759, reported in Morrison, 165, it was decided, that the office in question was not adjudgable by creditors, and the effect of the decision
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I therefore move your Lordships to reverse the interlocutors appealed from, to sustain the preliminary defences, and dismiss the action, and to find the appellant, the defender, entitled to the expenses of the suit below.
Judgment.
Ordered and adjudged, That the interlocutors complained of be reversed. And it is farther ordered and adjudged, that the appellants are entitled to the expenses of suit in the Court below.
Solicitors: Arch. Grahame, Agent.
