1858. BARTON and Another, executors of Cox, v. SARAH GAINER. June 3. DECLARATION. That the defendant detains from The 8 & 9 Vict. c. clv., s. 36, enacts, "that every transfer Railway mort the plaintiffs two mortgages or deeds under the common seal of the Bristol and Exeter Railway, numbered respec- (of Bristol tively 1946 and 1948, each for securing repayment of the and Exeter sum of 10001, &c.; and also divers, to wit, eight coupons gages) shall or interest warrants to each of the said mortgages or deeds duly stamped," &c. A., having respectively annexed, being the mortgages, &c., of the plain- in his lifetime tiffs as co-executors, &c. Pleas: First, non detinet. Secondly, that the said mort gages or deeds, and coupons or interest warrants, were not, given by word mortgages or nor was any or either of them, the goods of the plaintiffs as Held, that, alleged. Whereupon issue was joined. assuming did not pass nevertheless Vict. executor could not maintain documents against B. At the trial before Crowder, J., at the Bristol Spring gage debts Assizes, the plaintiffs' case was that the defendant detained by such gift, two debentures or mortgages of the Bristol and Exeter that A.'s Railway Company, issued in pursuance of the 8 & 9 c. clv., each for the payment of 1000l. to the testator. defendant proved that the testator, about a year and a half before his death, gave her two debentures with the coupons attached, saying "Take them and keep them for yourself, but you must give me the coupons that I may have the interest during my life." The defendant then took possession of the debentures and kept them locked up in her own drawer until after the testator's death. As the interest became due she cut off the coupons and handed them to the testator, who continued to receive the interest as long as he lived. It was agreed that the jury should find that there was such a gift of the debentures to the defendant as the evidence would warrant, and, by consent, a verdict was entered for the plaintiffs, leave being reserved to the 1858. BARTON v. GAINER. defendant to move to enter a verdict for her if, upon the finding of the jury, the Court should be of opinion that the defendant was entitled to retain the debentures. Collier, in Easter Term, obtained a rule nisi for that purpose, against which Montague Smith and Prideaux now shewed cause.—The question is, whether the property in the mortgage debts passed to the defendant. [Martin, B.-Surely that is not the question. If the obligee of a bond gives it to a third person, the obligee's executors cannot claim back the paper on which the bond is written, though the gift may not operate as a valid assignment of the debt.] It is true that if a person gives to another a title deed as a piece of parchment, the parchment would pass, but it would be otherwise if the intention of the donor was to give an estate and the gift of the estate failed. A Court of equity will not give effect to an imperfect voluntary gift, such as that in the present case: Dillon v. Coppin (a). As there was not a good transfer of the debt, the gift fails; and as the intention of the plaintiffs' testator cannot be carried out, and the property in the debt remained in him, the defendant has no right to retain the documents which are merely accessory to the debt. [Pollock, C. B.-The owner may by grant sever the title deeds from an estate. Martin, B.-In Sheppard's Touchstone, p. 242, it is said:-"A man may give or grant his deeds, i. e., the parchment, paper and wax, to another at his pleasure, and the grantee may keep or cancel them. And, therefore, if a man have an obligation he may give or grant it away, and so sever the debt and it." Watson, B.-Suppose a person grants to another a bond and the bond debt, the debt passes in equity. A debt may be granted by parol without (a) 4 M. & Cr. 647. See also Jefferys v. Jefferys, 1 Cr. & Ph. 138. deed.] By the 8 & 9 Vict. c. clv., s. 36, it is enacted that "any party entitled to any mortgage granted under the power of the recited Acts, &c., may transfer his right and interest therein to any other person; and every such transfer shall be by deed duly stamped, wherein the consideration shall be truly stated." A transfer not in accordance with this Act is of no effect (a). [Pollock, C. B.-It does not follow that a stamped deed is necessary to transfer the document of title.] A chattel will not pass by a verbal gift without delivery: Irons v. Smallpiece (b): therefore the debt did not pass. The documents are merely accessory to the debt, and there was no intention to sever them by the gift. [Collier referred to Gibson v. Overbury (c), and Burton's Compendium, § 476.] Collier and Karslake, who appeared to support the rule, were not called upon. POLLOCK, C. B.-This rule must be absolute. Conceding that the construction put upon the section by the plaintiff's counsel is correct, I should consider that if a person gives the parchment on which the mortgage is written, we ought to give effect to his act as far as we can. MARTIN, B.-I think there is no doubt but that the defendant is entitled to retain the documents. What use she can make of them is a different question. The donor intended and hoped that the possession of the debentures would carry with it the property in them. But that does not alter the effect of the gift of the documents. If the defendant can avail herself of the documents in any way, either by compelling the executors to make a bargain with (a) See Doe d. Owen Jones v. David Jones, 5 Exch. 16. (b) 2 B. & Ald. 551. 1858. BARTON v. GAINER. VOL. III.-N. S. DD EXCH. 1858. BARTON v. GAINER. EXCHEQUER REPORTS. her or otherwise, she is entitled to do so. WATSON, B.-I am of the same opinion. The finding of the jury shews that the debentures were given nearly two years before the testator's decease to the defendant, who always retained possession of them. I do not know what right the plaintiffs have to say that this was not a gift of them, though it may be that such gift and possession give no title to the debt. But the only question here is, whether the plaintiffs have a right to recover possession of the pieces of paper. (a) See Co. Litt. 232, a. b.; Kelsock v. Nicholson, Cro. Eliz. Rule absolute (a). 478, 496. But see Searle v. Law, 15 Sim. 95. June 5. The surren deree of a copy hold estate having died in the lifetime of the tenant for THIS GARLAND V. ALSTON. IS was a special case.-The action was brought by remainder in a the plaintiff against the defendant, to recover the sum of 1207., being the amount of a double fine claimed by the plaintiff to be due to him from the defendant on the admission of the defendant to certain customary or copyhold hereditaments held of the manor of Wix Hall or Abbey, in the county of Essex. life :- Held, that on the decease of the tenant for life the heir of such surrenderee was entitled to be admitted on payment of a single fine. The defendant contended that the plaintiff was entitled to 60%, being the amount of a single fine, and no more. The plaintiff is lord of the said manor, and the defendant is one of the customary or copyhold tenants thereof. John Ham, a tenant of the manor, by his will dated the 26th day of April, 1824, gave and devised to his daughter Sarah, the wife of Joseph Cutting, all that his copyhold messuage or tenement and farm called Westlands, situate and being in Wix aforesaid, to hold the same unto his daughter, Sarah Cutting, for the term of her natural life, to and for her own sole and separate use and benefit (she committing no waste thereupon, and paying out of the rents thereof the annual interest upon the principal money due and owing on a certain mortgage). And after the decease of his daughter, Sarah Cutting, he gave and devised the same messuage or tenement and farm, called Westlands, unto his sons Robert Ham and William Ham, to be equally divided between them as tenants in common, and not as joint tenants, and to their several and respective heirs and assigns for ever, subject to the payment of the principal sum of money due on mortgage thereof at his decease. The testator died in the year 1825, and his daughter was admitted according to the terms of the will, and paid a full fine. At a general court baron holden for the said manor, on the 21st of June, 1830, the homage of that court presented an absolute surrender, bearing date the 24th of December 1829, from the said Robert Ham to D. C. Alston, since deceased, of all that the reversion or remainder of him the said R. Ham, expectant on the decease of Sarah Cutting, of and in one undivided moiety or equal half part (the whole into two equal parts to be divided or considered as divided), of and in all that the said messuage or tenement and farm called Westlands. At the same court the homage presented an absolute surrender, bearing date the 15th of January, 1830, from the said William Ham to D. C. Alston, since deceased, of all that the reversion or remainder of him the said W. Ham, 1858. GARLAND v. ALSTON. |