1839.-The Attorney General v The Fishmongers Company.

affected by any trust, could, like individuals having an absolute estate, deal with it as they pleased. But that, whatever might be the law as to property under the charter, still it was clear that this property, which had always been admitted to be held under the will, and the rents of which had ever since *been partially at least applied towards the objects pointed out [*596] by the will, was subject to the ordinary jurisdiction of this court.

That no necessity was shown for having recourse to the intricate mode suggested of obtaining the property, and if there had been still it would be an illegal act, a fraudulent evasion of the law which this court could not support: The Bank of England v. Booth.(a)

That the rent charges which had been devoted to superstitious uses were quite distinct from the corpus of the estate, and that the former alone became forfeited; and that, even if the rent charges exceeded the value of the estate, still, when the value increased, the charity was entitled to the surplus.

November 9.-THE MASTER OF THE ROLLS:-This information prays for a declaration, that the defendants were seised and possessed of certain property which was devised to the Fishmongers Company by the will of Henry Preston, in trust for the uses expressed in the said will, and not for their own use, subject only to the payment of two yearly sums of 261. 13s. 4d. and 131. 6s. 8d. chargeable thereon; that the great hall of the company, or a part thereof, constitutes part of the charity property; that an account might be taken of the rents of such part of the property as have been let, and that the defendants may be charged therewith, and with an occupation rent for the use of the hall for twenty years before the information was filed; and that

a scheme may be settled for *the future application of the rents of the [*597] charity property, having regard to the testator's will in that behalf.

The will under which this relief is sought, is dated the 20th of February, 1435, nearly 400 years before the information was filed; and more than 400 years have now elapsed since the death of the testator, to whom the property is alleged to have belonged.

The estate came into the possession of the company within a few years after the death of the testator, and during the whole time which has since elapsed the property has been used and dealt with as part of the general property of the company, and has been applied to the general purposes thereof. Those general purposes have been in part charitable, but no special destination has been given to the revenue arising from this property, as distinguished from the other general property to which the company is entitled.

The property was, however, by the will of Preston devised to the wardens and commonalty of the company, to be held by them in aid of the support of the poor men and women of the company for ever,-(in auxilium sustentationis pauperum hominum et mulierum misteria et communitatis

(a) 2 Keen, 466.

1839. The Attorney General v. The Fishmongers Company.

prædictarum in perpetuum; and this the relator insists as a charitable purpose to be executed by this court, which ought to interfere notwithstanding the lapse of time.

The defendants contended that they have shown an absolute title in themselves, and it is necessary to advert to the circumstances under which the estate was proved to have been acquired.

[*598] *The property consists partly of property situated in Grace-church Street and Lombard Street, and partly of property which has been described as the great tenement in Thames Street.

First, the Grace church Street and Lombard Street property in the time of Richard II. belonged to John de Heylesdon, who charged it with a rent charge of 20 marks, or 131. 6s. 8d. for superstitious uses; and subject to that charge the property afterwards became vested in John Coventry, whose executors, having power to sell under his will, sold it to John Radwell, William Londroppe, John Fitz Geffrey and Walter Pijou, to whom it was conveyed on the 27th of May in the eighth year of King Henry VI., viz. the 27th of May, 1430. Upon the death of Radwell this property became vested in Londroppe, Fitz Geffrey and Pijou, the three survivors.

Secondly, The great tenement in Thames Street in the year 1368, belonged to John Lockyer: in 1413 it had become the property of William Askham, whose acting executor, Thomas Botiller, sold it to Sir Thomas Sackville and five other persons, and in the year 1432, and by deeds executed then or in the course of year or two next following, it was conveyed to Sir John Cornwall, Lord of Fanhope.

It thus appears, that in the year 1432 a part of the property now in question belonged to Sir John Cornwall, and that the remainder was vested in Londroppe, Fitz Geffrey and Pijou. From the circumstances which afterwards took place, it is at least probable that Londroppe, Fitz Geffrey and Pijou were trustees for Sir John Cornwall.

[*599] *About the same time the fishmongers obtained a new charter, which was dated the 8th of February, 11 Henry VI., viz: 8th of February, 1433. This charter contains a license to hold lands in mortmain to a limited amount, and it is remarkable that the license was to hold the land to the wardens and commonalty, and their successors for ever, in aid of the maintenance of the poor men and women of the mystery and community aforesaid for ever,—(in auxilium sustentationis pauperum hominum et mulierum misteræ et communitatis prædictarum in perpetuum ;) being the same words which are employed by Preston in his will in relation to the property thereby purported to be given to the company.

On the 11th of November, 1434, Sir John Cornwall conveyed the great tenement to Londroppe, Fitz Geffrey, and Pijou, the three survivors of the four persons to whom the property in Grace-church street and Lombard street had been conveyed four or five years before; and on the 18th of November

1839. The Attorney General v. The Fishmongers' Company.

1434, Londroppe, Fitz Geffrey and Pijou granted to Sir John Cornwall an annual rent of 40 marks (267. 13s. 4d.) issuing out of both properties: an additional rent of 5 marks was payable if the rent of 40 marks was in arrear or unpaid for three months, and there was a power to enter and distrain.

On the same 18th November, 1434, Fitz Geffrey and Pijou executed a deed, whereby, after reciting a lease which they had granted for 40 years to the releasees after named, at the rent of a red rose, they released both properties, together with other property which had formerly belonged to Thomas Wylford, to John Michel, described as citizen and alderman, to Richard Bokeland, Thomas Dufhous, John Whatton, Thomas Blackenhall, Henry Preston, Thomas Botiller, John Tasburg, *Thomas Lincoln, Richard [*600] Banaster and Thomas Badley, described as citizens and fishmongers, and to Elizabeth, the widow of Thomas Wylford.

On the next following day, viz: the 19th of November, 1434, these twelve persons, in whom the legal estate, not only of the property now in question, but also of the property formerly Wylford's, was vested, granted a rent of 401. per annum to Sir John Cornwall, payable out of all the property so vested in them, with powers of entry and distress; but there was a proviso that no levy should be made during the life of Elizabeth Wylford; and a further proviso, that if Londroppe, Fitz Geffrey and Pijou should pay to Sir John Cornwall the rent charge of 40 marks, according to the former deed, the annual rent of 401. and the payment thereof should not be in any manner leviable, but should be suspended, and should only be required when the rent of 40 marks were in arrear and unpaid. A confirmation of this deed was executed two days afterwards, and by means of it it would seem that Sir John Cornwall obtained an additional security for the payment of the rent charge of 40 marks granted to him on the preceding 18th of November.

The whole property being now vested in John Michel and the eleven other persons named in the release of the 18th of November, subject to the payment of the rent of 40 marks granted by the deed of even date, and to the payment, out of Heylesdon property, of the rent charge of 20 marks created by Heylesdon, and Sir John Cornwall having obtained an additional security for his rent charge of 40 marks, it appears by a recital in a subsequent deed, and also by a recital in Preston's will, that on the 22d of November, 1434, John Michel and the eleven other persons demised, enfeoffed and confirmed the great tenement to Hamwell, Watkins and *Gift, and their [*601] assigns for the whole life of Sir John Cornwall, Lord of Fanhope;

and on the following 15th of December, 1434, John Michel and his co-releasees in the deed of the 18th of November, except Preston, without any consideration expressed, released their right and claim to the estates to Henry Preston, his heirs and assigns for ever.

On a consideration of the facts stated, and having regard to the state of the law at the time, it appears to me that the property in question was acquired by the company under an arrangement between them and Sir John

1839-The Attorney General v. The Fishmongers Company.

Cornwall, Lord of Fanhope, that Henry Preston became and was a trustee for the company, and that the company acquired the property with an intention to hold it, subject to the charges, under the license contained in their charter.

On the 1st of April, 1437, Sir John Cornwall, Lord of Fanhope, made a will, whereby he devised the rent charge of 40 marks to the prior and convent preachers near Ludgate, for superstitious uses. He made a subsequent will, dated the 10th of December, 1443, which did not alter that disposition, and disposed of other property.

The sum of 400 marks being voluntarily paid by the executors of Sir John Cornwall to the company, in recompense of the costs and charges they had incurred and in order to secure the performance of the will of Sir John Cornwall with respect to his intended application of the rent charge of 40 marks, it seems necessarily to follow, that in the opinion of the executors the performance of the will would have failed without this assistance, and conse

quently, that the property was not considered sufficient. But we [*602] may presume that the "company, having received the assistance, un

dertook to pay the rent charges, and continued to pay them for the intended purposes till the time of the Reformation, for we find the yearly sum of 291. 13s. 4d. issuing out of the whole of this property, and the yearly sum of 131. 6s. 8d. issuing out of the part situate in Lombard Street and Gracechurch Street comprised in the letters patent or grant made for valuable consideration by King Edward VI. to the company in the fourth year of his reign. In the mean time the property was treated as absolutely belonging to the company.

On this case the relator contends, first, that this was the property of Preston, and is subject to the trusts of his will under which the defendants claim title; but probably foreseeing that under the circumstances it might appear that Preston was not entitled beneficially, or otherwise than as trustee for the company, he further contends, that supposing Preston to have been only a trustee and to have made his will according to the directions of the company, still the will expresses the terms on which the company' took and professed to hold the property; and those terms describe a trust from which the company cannot be relieved. To this it is answered for the defendants, first, that the terms of Preston's will exactly correspond with the terms of the charter, and cannot show a charitable trust any more than the charter shows that any other property held under the same license is held on a charitable trust to be executed in this court; that property given by wil!, even if given by a stranger, (which they insist, and I think with reason, Preston was not,) for the very same purposes for which they were licensed to hold land in mortmain, could be held only on the same trusts and in the same manner as all other lands held under the same license; and it being, as alleged, [*603] clear that this court *has no jurisdiction over other lands held under

that license, it is argued that the court has no jurisdiction over these

1839. The Attorney General v. The Fishmongers Company.

lands. It is contended further, that even if these lands or the surplus rents after satisfying the charges were subject to a charitable use which might be executed in this court, yet they were charged with annual sums, exceeding the annual value of the property, for superstitious uses; that those annual sums became the property of the Crown, and were by the Crown granted to the company; and that afterwards, by the act of 4 J. 1, c. 10, the lands out of which the rents were issuing were secured to the company, and that thereby the property became theirs, and I am of that opinion.

We are now at the distance of 400 years from the time when the transaction took place, and it is very difficult, if not impossible, satisfactorily to explain every particular of the whole transaction; but I am of opinion that after so long an uninterrupted usage any thing which seems ambiguous ought to be presumed in favor of the company's title. I think that Preston was only a trustee for the company; and although the words of the charter and of Preston's will which, in my view, must be taken as made with the concurrence of the company, import a trust such as might be executed by this court, yet the trust could only attach upon the surplus which remained after satisfying the specific charges: and in this case, with such reason to think that at the time when the transaction took place the value of the property did not equal the charge, without any evidence that the value had increased before the grant of King Edward VI., and with an uninterrupted use of the property, as belonging to the company, for a period of nearly 400 years, it appears to me, that I ought to presume that the charges to which the Crown became entitled, and which were granted to the company, were *equal [*604] to, if they did not exceed, the whole value of the land; and under these circumstances, I am of opinion, that by the grant and the subsequent. statute of James I., the estate became the property of the company, and therefore that this information must be dismissed with costs.

Affirmed by the L. C., 13th January, 1841.[1]

[1] The case on appeal is reported, 5 Myl. & Cr. 16. If there be no doubt of the origin and existence of a trust, this court will not allow lapse of time to enable those, who are mere trustees, to appropriate to themselves that which is the property of others; but in questions of doubt whether any trust exists, and whether those in possession are not entitled to the property for their own benefit, the court will pay the utmost regard to the length of time during which there has been enjoyment inconsistent with the existence of the supposed trust. Ibid.