Metcalfe v Archbishop of York

• Jurisdiction: Ireland
• Year: 1836
• Court: Court of Chancery (Ireland)
• Date: 1836

English Reports Citation: 40 E.R. 485

HIGH COURT OF CHANCERY

Metcalfe

and

The Archbishop of York

S. C. 6 Sim. 224; 6 L. J. Ch. (N. S.), 65. See Montagu v. Earl of Sandwich, 1886, 32 ch. D. 539; Tailby v. Official Receiver, 1888, 13 App. Cas. 548.

~-J^~ / T metcalfe v. the archbishop of york. Feb. 11, Noo. 9, [1836]. ,^/a//./ . [S. C. 6 Sim. 224 ; 6 L. J. Ch. (N. S.), 65. See Montagu v. Earl of Sandwich, 1886, 32 Ch. D. 539 ; TaiUty v. Official Receiver, 1888, 13 App. Gas. 548.] In the year 1803 the Act 43 G. 3, c. 84, repealed the Act 13 Eliz., c. 20, which prohibited the charging of benefices. In the year 1817 the Act 43 G. 3 was repealed, and the effect of such repeal was to revive the Act of Eliz. In the year 1811 an incumbent duly charged his then present benefice with an annuity, and covenanted that, if he should afterwards be preferred to any other benefice, he would fully charge the same with the annuity; and that in the meantime the same should be charged and chargeable with the annuity. In the year 1814, the incumbent was preferred to another benefice, but no legal charge upon it was executed until the year 1818. Held, in the Court below, and upon appeal, that the deed of 1811 constituted a good equitable charge, which attached upon the new benefice as soon as it was acquired. There being subsequent incumbrancers, an order for a receiver was made at the hearing, and affirmed on appeal. 486 METCALFE V. THE ARCHBISHOP OF YORK 1 MY. & CR. 548. The facts of this case are stated in Mr. Simons's report of the proceedings before the Vice-Chancellor, (fi Sim. 224.) The Defendants Meggison, Pringle, and Manisty, now appealed from the Vice-Chancellor's decree. Mr. Tirmey and Mr. Metcalfe, for the Plaintiff, in support of the decree. The^Act 57 G. 3, c. 99, is not retrospective. It is clear that charges of benefices-made in the interval, between the passing of the Act 43 G. 3, c. 84, and the passing of the Act 57 G. 3, c. 99, are valid. Doe dem. [548] Broiujhtan v. Gully (9 B. & C. 344),. and Hollins v. ArrJier, at the Rolls. The effect of the deed of August 1811 is to create an equitable charge on any future living which Mr. Warrington might acquire, to take effect from the moment at which he should become entitled to such future living. The charge is not executory, but it amounts, in equity, to an assignment of the profits of the living. The effect, would not have been stronger1 if the words used had been, "doth hereby charge ; "" those words would clearly have operated as an equitable assignment, for it is perfectly well settled that a party may in equity assign what he has not got at the time;. Curtis v. Aulier (1 J. & W. 520), Dmujlan v. fiu-ssell (4 Sim. 524, affirmed on appeal;. 1 Myliie & Keen, 488), Alexander v. Duke of Wdlinijtiyn (2 Russ. it Mylne, .'55, and see Lyda v. Mynn, 1 Mylne fc Keen, 683). Whenever an equitable right is established, a Court of Equity will in some manner give effect to that right, without regard to the form in which the right may have been created. The appointment of a receiver, is a perfectly proper mode of giving effect to such a right, as that which the Plaintiffs have. The Defendants having obtained a legal right, with notice of the Plaintiff's equitable interest, will be held to be trustees for the Plaintiff to the extent of that interest. In Betteswwth v. The Dean and Chapter of 8t. Paul's (1 Bro. P. C. 240, and Sel. Ca. Ch. 66, and 2 E. a. Ca. Ab. 26), it was decided that where a covenant was partly lawful and partly unlawful, it should be carried into effect as far as the law allowed. A Court of Equity will consider that which ought to have been done as having been done. The new living must therefore be considered to have been fully charged, in pursuance of the covenant, within three months after it had been acquired. It is not true [549] that specific performance will be ordered only where damages-could be obtained at law; Cannel v. Buckle (2 P. Wins. 243). The Court considers, the conscience of a covenantor bound; and the specific performance is only a mode by which the Court gives effect to this view. Mr. Warrington became a trustee for the Plaintiff immediately upon his obtaining the living of Leake. The Defendants had full and complete notice of the deed of 1811, and of all its, contents; for the deed of 1818, which refers to the deed of 1811, was registered; besides, the Defendants admit by their answer that they were aware of the deed of 1811 ; and this is also proved by the evidence. Notice of the deed of 1811 was, of course, notice of all its contents ; Hall v. Smith (14 Ves. 426), Taylor v. Baker (Daniell,. 71), and the cases there referred to. Mr. Jacob and Mr. Purvis, for the Defendants Meggison, Pringle, and Manisty. The covenant has already been performed, by the execution of the deed of 1818, which was accepted in satisfaction of the covenant, and would support a plea of accord and satisfaction. The covenant was one and entire, although treated by the Vice-Chancellor as. containing separate parts; the latter words are but a covenant, like the former. If the order of the words had been inverted, the effect would have been just the same. The whole doctrine of equitable charges rests on the right to specific performance ; for a person having an equitable charge has no estate or interest; and certainly there ha* been no ease in which an equitable assignment has been carried [550] into effect, when in consequence of an intervening statute there could be no specific performance. The statute of Elizabeth renders the performance of the covenant illegal at law, and in equity also. No action of covenant could be brought upon either branch of the covenant for the refusal to perform the covenant after the performance of it has become unlawful; it is no breach of the covenant at law ; and where there has been no breach at law there can be no specific performance in equity : this was laid clown by Lord Eldon in Prebhle v. Boghurst (see 1 Swanst. 313). The Court will not endeavour to evade the statute of Elizabeth ; and the Court is not entitled to draw a. 1 MY. a OR. L METCALFE V. THE ARCHBISHOP OF YORK 487" distinction between things which are mala jyrohibita, and things which are mala in se ,-Cannan v. Bryce (3 B. & Aid. 179), Aubert v. Maze (2 Bos. & P. 371). Bette&warth v. The Dean and Chapter of St. Paul's is the only case at all analogous to this; but the decision there made cannot be applied to the present case. There is no instance in which a receiver has been appointed, upon the mere ground that there was no other mode of giving relief. By that means the Court would give indirectly the benefit of a specific performance, in cases in which a specific performance could not be had. The effect of the decree is that there must be a perpetual receiver. Is the appointment of a receiver to be considered as an execution 1 There is no case of an execution in...