1841. The GENERAL V. The FISH- (Preston's In the year 1429 the property in Gracechurch Street and Lombard Street was vested in four persons, Radwell, Londsop, Fitz Geffrey, and Pijou, and the first having ATTORNEYdied, the three last subsequently dealt with it alone. This was before the incorporation of the Company, which was not until the year 1433. If, therefore, these persons held this property in trust for the Company, the course usually at that time adopted for such a purpose would appear to have been followed. The subsequent transactions will shew whether they did so, or were beneficially entitled to the property. The Great Tenement had become vested in Sir John Cornwall; and, by deed, of the 11th of November 1434, he conveyed it to the same Londsop, Fitz Geffrey, and Pijou; and on the 18th of November 1434 they granted to him, charged upon this property and the other property which they held under the deed of 1429, an annual rent of 40 marks, with a power of entry and distress; and, in the event of nonpayment, bound themselves personally to pay 5 marks as a penalty. On the same day Londsop, Fitz Geffrey, and Pijou executed another deed, by which they conveyed all the property in Gracechurch Street, Lombard Street, and the Great Tenement, in fee, to John Mitchell, described as citizen and alderman of London, and ten others, of whom Henry Preston was one, described as citizens and fishmongers. By another deed of the 19th of November 1434, Mitchell and the ten others charged an annual rent of 40%. upon all the property comprised in the last deed, and upon various other properties stated to be vested in them, in favour of Sir John Cornwall, but with a proviso that such annual rent should not be demandable if the rent of 40 marks was regularly paid, and with a proviso against their being personally liable. It may well be asked why, if these parties were purchasers, they should charge this and other proC 3 perty 1841. The ATTORNEY GENERAL v. The FISHMONGERS' Company. (Preston's Will.) perty with the rent of 40%. to secure the forty marks. By another deed of the 15th of December, Mitchell and nine of the ten, Henry Preston being omitted, released to Henry Preston and his heirs all their estates and interests in the property in Gracechurch Street, Lombard Street, and the Great Tenement; and, on the 20th of February, Henry Preston made his will, which recites the transactions as to the property in Gracechurch Street, Lombard Street, and the Great Tenement, and reciting that he had thereby become solely seised thereof in his demesne as of fee simple, devised the whole of such property to certain persons named and described as the then wardens of the Company, and to the commonalty of the same mystery and their successors for ever, in aid of the sustentation of the poor men and women of the said mystery and commonalty for ever. The will is confined to this object, and takes no notice of any other property, and is in the form in use at that time for passing trust property, as proved by Mr. Hardy. If Radwell, Londsop, Fitz Geffrey, and Pijou were trustees of the Gracechurch Street and Lombard Street property for the Company, and if the Company purchased the Great Tenement of Sir John Cornwall, it is very consistent with such a supposition that after the death of Radwell the other three should deal with the property, and that upon the purchase of the Great Tenement, the consideration for such purchase, viz. the forty marks, should be charged upon other property belonging to the Company, and that these three should convey the whole to other trustees, viz. Mitchell and the ten others; and if these eleven were trustees for the Company, it is proved to have been according to the usual course course of business in such cases that the trustees should 1841. The บ. The FISH- convey to one, that such one might, by will, vest the property in the Company for whom it was held in trust: ATTORNEYGENERAL but if Henry Preston was beneficially entitled to the property, so must have been Mitchell and the other ten, and so must have been Radwell, Londsop, Fitz Geffrey, and Pijou; but, besides the improbability of so many persons acquiring and immediately parting with shares and interests in this property, and the impossibility of accounting for their dealings with the property upon that supposition, there is no appearance of any consideration being given by the eleven to the three, or by Henry Preston to the ten for the transfer of their interests; and the deed between the executors of Sir John Cornwall and the Company strongly confirms the supposition that the transaction was, from the beginning, between him and the Company. I observe that the Master of the Rolls seems to think it probable that Londsop, Fitz Geffrey, and Pijou were trustees of the property in Gracechurch Street and Lombard Street for Sir John Cornwall. For the purposes of the present question, it is not material whether they were trustees for him or for the Company, though, for the reasons I have given, I think the better presumption is, that they were trustees for the latter. The Informant's proposition is, that they were the beneficial owners; the contrary of which is all but demonstrated by the evidence. I have, therefore, no difficulty in coming to the conclusion that the Company did not derive the beneficial interest in this property from Henry Preston's will; whereas, before I could entertain the case made by the information, I must have been satisfied, beyond any reasonable doubt, that they did derive their title under it. 1841. The GENERAL v. The FISH- It was then said that, although Henry Preston were, in fact, a trustee for the Company, yet that the terms of his ATTORNEY- Will imposed upon the Company a duty of applying the property to charitable purposes. It is not easy to conceive how the expressions used by a trustee are to alter the estate and to destroy the interests of his cestuis que trust: but the fact that the words used are precisely those which are to be found in the licence to hold lands in mortmain, comprised in the charter of the Company, explains the ground of their introduction into Preston's will, and proves that there was no intention of affecting the estate and interest of the Company in this property. There is another ground of defence, on the part of the Defendants, which remains to be observed upon. I have before stated that the property in question appears to have been of less annual value than the two rents charged upon it, which seems to have been a sufficient ground for the title of the Crown to the property itself under the stat. 1 Ed. 6. c. 14. s. 5. In Adams v. Lambert (a), it is said to have been resolved, in a case in which land of the value of 20l. per annum was given, 10l. to a priest, 5l. for an obit, and 57. for a lamp, that all the uses being superstitious, the land itself belongs to the King; "for, inasmuch as all the profits are limited to superstitious uses, it was the intent of the act to give all the land to the King, by a reasonable construction upon the coherence and intention of all the parts of the act." That being so, as I have observed, in another case (b), it was immaterial whether the Crown actually seized the land itself or only the rents; the letters patent of 4 Ed. 6., and the act 4 Jac. 1., having had the effect of giving to the Company all that the act 1 Ed. 6. had given to the King. This (a) 4 Coke Rep. 104. b.; see (b) See the preceding case. 112. b. 1841. The GENERAL v. This probable ground of title, coupled with the 400 years' enjoyment, would, of itself, have been an answer to the claim made by the information. In this case, it ATTORNEYis unnecessary to pursue that point further, as this additional ground is not required to support the decree of The FISHthe Master of the Rolls, which I now affirm, and dismiss the appeal with costs: but I cannot part with this case without expressing my regret that this proceeding should have been instituted without that ordinary degree of consideration and research, which, if exercised, must have satisfied the relators that there was no foundation for the case attempted to be made. The title to property, after an enjoyment of 400 years, is questioned, and great trouble and expense necessarily occasioned to the owners, upon some expressions found in a will of the year 1434 (a), which even a slight attention to the history of the time, the then state of the law, and the transactions relating to the property (which the relators do not appear to have taken any pains to ascertain), would have shewn to be wholly unavailing for the purpose of supporting the claim made. The loss which this attempt will occasion to the relators is no compensation for the injury which it has occasioned to the Defendants, from which I regret the inability of the Court to relieve them, beyond the costs of the suit, given by the decree of the Master of the Rolls, and the costs of the appeal, which I now order the relators to pay. MONGERS' Company. (Preston's Will.) (a) 1434-5. |