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No. 8. Rooke v. Lord Kensington, 25 L. J. Ch. 795, 796. — Rule.

No. 8.ROOKE v. LORD KENSINGTON.

(1856.)

RULE.

WHERE, after an enumeration of particulars, there is a sweeping clause comprising all other things under a general description, the scope of such a clause is restricted to things within the description of the same kind with the particulars enumerated.

Rooke v. Lord Kensington.

25 L. J. Ch. 795–801 (s. c. 2 K. & J. 753).

Conveyance. General Words. — Ejusdem generis.

[795]

By a mortgage, after reciting that the mortgagor was seised of or entitled [796] to the messuages, lands, hereditaments, and premises thereinafter described, certain messuages, lands, hereditaments, and premises at K., in the county of M., were mortgaged by a particular description, and by reference to schedules; and after the description came the following general words: "And all other the lands, tenements, and hereditaments (if any) in the county of M. aforesaid, whereof or whereto the said (mortgagor) is seised or entitled for an estate of inheritance." At the date of the mortgage the mortgagor was seised in fee of a manor at K., in the county of M. The Court, having no power under the circumstances to make a decree, expressed an opinion that the manor was not comprised in the mortgage.

In 1802 Lord Kensington, being entitled to the manor of Earl's Court in Kensington, and to certain land and house property in the parish of Kensington (which last-mentioned property is hereafter called "the Kensington estate "), mortgaged the manor, the Kensington estate, and other property to Lord Beauchamp.

In 1807 Lord Beauchamp released the manor from his mortgage, and reconveyed it to Lord Kensington.

By deeds, dated in November, 1812, the mortgage of the Kensington estate was transferred to the Globe Assurance Company, and by deeds, dated the 23rd and 24th of September, 1824, transferred by them to Marjoribanks and others for securing £30,000; and by other deeds, dated in 1825 and 1827, the Kensington estate was charged with the payment of the further sums of £5000 and £3000 to Marjoribanks and others.

No. 8. - Rooke v. Lord Kensington, 25 L. J. Ch. 796, 797.

By indentures of lease and release, dated the 27th and 28th of March, 1828, Lord Kensington mortgaged the Kensington estate to Garrard. This suit was occasioned by the introduction of some general words, hereafter set forth, after the description of the parcels conveyed.

The deed of release of the 28th of March was made between Lord Kensington of the one part and Garrard of the other part; and it recited that Lord Kensington was seised of or entitled to the messuages, lands, hereditaments, and premises thereinafter described, or intended to be thereby conveyed, with their appurtenances, in fee simple, subject to the mortgage and further charges. Lord Kensington then, by the witnessing part, released the Kensington estate by a particular description, and by reference to schedules of particulars and plans therein contained and annexed thereto, and also contained in and annexed to the deeds of 1812. After this description were these general words: "And all other the hereditaments and premises comprised in the herein before-mentioned mortgage of the 23rd of September, 1824, and all other the lands, tenements, and hereditaments, if any, in the county of Middlesex aforesaid, whereof or whereto the said Lord Kensington is seised or entitled for an estate of inheritance."

The first question in the suit, upon which all the others turned, was, whether the manor passed under the general words in the release.

This question became of great importance from the circumstance that Lord Kensington had purchased, and had conveyed to him, a very large property at Brompton, which was copyhold of the manor of Earl's Court, and which is hereafter called "the Brompton estate," and mortgaged it, as freehold, to the extent of £140,000.

On the supposition that the manor had passed by Garrard's mortgage and the settlement, the mortgagees of the Brompton estate might lose their security altogether, or have only a copyhold instead of a freehold interest.

The bill was filed by one of the mortgagees of the Brompton estate, and prayed, among other things, that it might be declared that the Brompton estate was not comprised in the set[* 797] tlement, which, in effect, was the same thing as a declaration that the manor was not comprised in Gar

rard's mortgage.

No. 8.-Rooke v. Lord Kensington, 25 L. J. Ch. 797, 798.

Mr. Willcock and Mr. Shapter, for the plaintiff.

Mr. Rolt and Mr. B. L. Chapman, for the mortgagees in the same interest as the plaintiff.

Mr. Selwyn and Mr. Eddis, for parties claiming under the settlement, who contended that it passed by Garrard's mortgage and the settlement.

Mr. W. M. James, Mr. Freeling, Mr. Cairns, and Mr. Bedwell, for other parties.

The following cases were cited:

The Marquis of Exeter v. The Marchioness of Exeter, 3 Myl. & Cr. 321, 7 L. J. (N. S.) Ch. 240; Moseley v. Motteux, 10 M. & W. 533, 12 L. J. Ex. 136; Moore v. Magrath, Cowp. 9; Doe d. Meyrick v. Meyrick, 2 Cr. & J. 222, 2 Tyrw. 178, 1 L. J. (N. S.) Ex. 73; Walsh v. Trevanion, 15 Q. B. 733, 16 Sim. 178, 19 L. J. Q. B. 458; Lady Langdale v. Briggs, Weekly Rep. 1855-56, 703; Shep. Touch. 91, 247.

July 24. WOOD, V. C. [after observations which applied only to the narrow terms in which the power of making a binding declaration of right was conferred on the Court by the Chancery Procedure Act of 1852, now superseded by the wider provision of the rules of Court under the Judicature Acts (Ord. 25, R.

5), and also discussing the question raised as to the plain [798] tiff's equity to have the settlement reformed, on the supposition that the manor had passed by Garrard's mortgage, continued as follows:] I have gone all along on the assumption that these estates did pass by the mortgage deeds, but it seems to me very plain that at law the estates did not pass. I am prohibited from sending a case for the opinion of a Court of law, and I must therefore decide the case either by myself or with the assistance of a Judge of a common-law Court; and, if I thought there was a sufficient degree of doubt on the subject, that would be the course I should have to take in order to arrive at this preliminary question, as to whether the estates did or did not pass by these deeds. Now, looking to the deeds themselves, the mortgage deed stands thus: Lord Kensington had two very distinct properties. After the transaction of 1807 he had a manor with only manorial rights, that is, with only his rights as lord in the fee simple, subject to the large copyhold interest, which was conveyed to and vested in him by Lord Beauchamp's conveyance in 1807, and other property which was built on, and was subject to the mortgage of 1802, and

No. 8.- Rooke v. Lord Kensington, 25 L. J. Ch. 798, 799.

further charges. He afterwards wishes to make a further mortgage of that property to Mr. Garrard, and the intent in the recital is this it is recited that Lord Kensington was seised of or entitled to the messuages, lands, hereditaments, and premises thereinafter described, or intended to be thereby conveyed, with their appurtenances, in fee simple, subject to the three mortgages thereof made by three certain indentures; that is the first recital, and is a plain and distinct recital of intention, that what he intended to convey was that which was subject to these several mortgages. Then, in the conveyance, he conveys all comprised in that mortgage of 1812, " and all other the lands, tenements, and heredita

ments (if any) in the county of Middlesex aforesaid, [* 799] whereof or whereto the said Lord Kensington is seised or entitled for an estate of inheritance." Well, now, it is true that the Courts have held, and the authorities are very numerous on this subject, that you cannot control clear words of conveyance by the words of recital. That is one canon, undoubtedly. But, then, those words "clear words of conveyance" are subject to interpretation, and the exception will be found to be always that large and general words are not within that description of "clear words of conveyance" which cannot be controlled by the recital. Wherever you find a clear description of a particular property, notwithstanding a contradictory recital, you hold most strongly against the grantor upon his own deed; and there being a doubt whether the recital or the conveyance is wrong, the two being plainly and clearly contradictory, you hold that the operative part is to stand, notwithstanding the recital would lead you to a contrary conclusion. But where there are large and general words amply sufficient to cover everything, in releases, for instance, which is the commonest case, it has been long settled that the recitals clearly bind down the effect of those general words; but as an illustration of the rule, I apprehend that, if in that case the recital expressed an intention to release certain things, and the releasing part did not merely release in general terms, but released a particular debt or action not comprised in the recital, that could not be limited or controlled by the recital, though the general words may be so controlled. In the case of Alexander v. Crosbie, 1 Ll. & G. 145, the question that arose was, whether there was a sufficiently clear recital that the property which was afterwards held to pass was to be excepted, for the

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No. 8.-Rooke v. Lord Kensington, 25 L. J. Ch. 799.

In

recital was (in a marriage settlement), that the settlor intended to settle and convey all his estate except the lands of Ballyhenry and its sub-denominations; but in the operative part there was a conveyance by name of a property called Killahan, which was a subdenomination of Ballyhenry. Now the question was, as he clearly expressed his intention to convey all the property except the subdenominations of Ballyhenry, and then conveyed a property which was a sub-denomination of Ballyhenry, which of the two was to stand? Lord ST. LEONARDS says, Although I have not the slightest doubt on this question, I thought it right to hear the arguments of all the counsel. As to the authority of a Court of equity to reform the settlement, nobody can dispute its power to correct a mistake," and so on. The Court is always tender in varying a settlement where the effect will be to defeat vested rights, or where it is sought to do so on mere parol evidence. all the cases, perhaps, in which the Court has reformed a settlement, there has been something beyond the parol evidence, such, for instance, as the instructions for preparing the conveyance, or a note by the attorney, and the mistake properly accounted for; but the Court would, I think, act where the mistake is clearly established by parol evidence. Then he says, "The evidence goes to establish the fact that Killahan was considered a subdenomination of Bally henry, and I must take that as a fact established. No attempt has been made to prove the contrary. then, leaves the case open to the weight to be given to that fact. The question for me now to decide is, whether, on the face of the settlement of 1815, there is sufficient, with the knowledge of this fact, to enable me to strike that denomination out of the settlement. Then he gives the recital, and he says, "Nothing can be more express, I admit. The manner in which the intention is carried into execution is this: in consideration of the fortune of the lady and of the said intended marriage, the father and the son do not convey all the estates by a general description, but take upon themselves to describe the several estates. It is not a general conveyance of all the estates, save and except Ballymalis and Ballyhenry,' but a conveyance of the several denominations by name, including Killahan. The question then is, Was Killahan. inserted among the others by mistake?" the others by mistake?" Then comes the part I particularly refer to: "I have here to deal with the case of a

Then he says,

This,

conveyance, not by a general description, but where the parties

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