Taylor v. Gwyn

SUMMER ASSIZES

SOUTH EASTERN CIRCUIT

NORWICH, August 5th 1878

CIVIL COURT - (Before Lord Justice Thesiger)


This case arose out of the old question as to the title to Stanfield Hall, the scene of the ruthless murders committed by Rush in 1848 upon the then owners Mr. Jermy and his family.

These murders were in some way connected with that question as to the title to the property - a question which had already given rise to violent proceedings, the subject of criminal prosecutions at the assizes here 40 years ago, and which had arisen out of events that had occurred in the history of the property more than a century ago. There probably never was a property in the country the title to which has given rise to such obstinate disputes or has been the source of so much litigation and crime.

Stanfield Hall Estate came into the possession of the Jermy family as long ago as 1735 by a marriage between Mr. William Jermy, of Bayfield, in this county, with the surviving sister of the former owner. This Mr. William Jermy, after the death of his wife, married a daughter of Mr. Jacob Preston of Beeston St. Lawrence, and, having no issue, made a will in 1751 devising the estates out of which all the disputes as to the title have arisen. He devised it in succession to Jacob, son of Isaac Preston, and his heirs male, and then to Thomas Preston and his heirs male - both of whom died without issue; and then in default of such issue he devised it to "such male person of the name of Jermy as should be the nearest related to the testator in blood and to his heirs forever". There was in the will the usual "name and arms clause," as it is called - that is, a clause providing that anyone who took the estate should take or continue to use the name and arms of Jermy; but this, of course, only applied to the previous devises to the Prestons, and could have no application to the last devise to "a person in the name of Jermy the nearest blood to the testator;" and out of these devises all the disputes as to the title having arisen down to the present time.

As already stated, the two Prestons to whom the estate was successively devised "in tail male" died without issue, and so the alternative devise came into operation by which the estate should go to "such male persons of the name of Jermy as should be the nearest related to the testator in blood" - that is, to William Jermy. The object of this singular devise seems to have been to prevent the testator's sister, his heiress in law, from succeeding to the estate. He died in 1752 and then the estate went in succession to the first of the two Prestons to whom it was devised - that is to Jacob, son of Isaac Preston; but who was a minor. His father, Isaac Preston, desiring to obtain the absolute property in the event of his son's dying without male issue, and in order to defeat all ultimate devises to male persons of the name of Jermy, purchased for small sums the contingent interests of the two male persons of the name of Jermy whom he believed to be the "nearest in blood" to the testator, William Jermy - vis. Francis Jermy, and one John Jermy, whose grandson some 40 years ago set up a claim to the estate insisting that the purchase was fraudulent, and that his ancestor, this John Jermy, was in truth the "nearest in blood" to the testator and so entitled to the estate at the death of the two Prestons, Jacob and Thomas, in tenents in tail male without issue male. Isaac Preston, however, by virtue of these purchases, claimed to dispose of the estate on the death of tenents in tail male without issue male, and he accordingly left the estate to his son, who, dying in 1796 without issue, entailed it by his will on his brother, the Rev. George Preston, with remainder to his son Isaac Preston for life and to his son Jermy Preston with the remainder to the heir male of his body.

The Rev. George Preston died in 1837, leaving his son Isaac Preston, who thereupon took possession of the estate and assumed the name Jermy; and this gentleman and his son, Mr. Jermy Preston who also had taken the name of Jermy, were murdered by Rush. The wife of the latter mentioned Mr. Jermy, the son, was also wounded by the assassin, but survived, and was in court today as a witness, where probably she has never been since 40 years ago, when she was a witness on the trial of her former husband's murderer. It will be observed that these gentlemen not being themselves members of the family of Jermy, the original testator, could only been entitled to the estate by virtue of the transactions entered into so long ago as 1752 by their ancestor, Isaac Preston, who purchased the contingent interest of the male Jermys who were supposed to be the nearest in blood to the original testator, and more especially the interest of John Jermy, who was believed to the the heir in blood; and it appears that at the time these transactions were questioned, and disputed. Pamphlets were printed on the subject, one of which was dated 1758 and entitled "Narrative of the Disputes between Isaac Preston, who purchased the estate for £20 and John Mitchell". Curiously enough in 1838, on a sale by Mr. Isaac Preston (afterwards Jermy) of the effects of his father, the Rev. George Preston, these pamphlets were purchased and became known, and the notice in the Gazette of the change of name from Preston to Jermy also served to call attention to the question as to the title of the Prestons to the estate. That title, it will be seen, depended upon the validity of the transaction by which their ancestor, old Isaac Preston, had in the middle of the last century attempted to acquire the title of the male persons in the name of Jermy nearest in blood to the original testator, for they had no other title; and accordingly in the notice in the Gazette it was stated that their title was that old Isaac Preston had purchased the ultimate remainder in fee in 1838.

In 1838 one Larner set up a claim to the estate, on the plea that the transactions by which Isaac Preston had professed to acquire the estate was fraudulent, and that he was the heir of the last male person of the name of Jermy nearest in blood to the original testator, and he proceeded, with many others who aided and assisted him, to take forceable possession of the Hall, for which he and 80 other persons were indicted and convicted at the Spring Assizes here in 1839.

In the meantime, Rush, who had been very intimate with Rev. George Preston, and who had acquired, in consequence of access to his papers, a perfect acquaintance with the title to the property, and had, indeed, possessed himself, as afterwards appeared, of some of the papers, had become tenant of the Stanfield Hall Farm, along with another, and when Mr. Preston Jermy came into the estate disputes arose between him and Rush, which resulted in an action and a verdict against Rush at the Assizes here in1848, and ultimately resulted in his bankruptcy and ruin. In revenge he published a pamphlet entitled "Jermy v Jermy, or who is the rightful owner of Stanfield Hall and Felmingham Estates," and in the pamphlet he disclosed the whole history of the property and the supposed defect in the title in consequence of the suggested validity of the transaction by which in the last century old Isaac Preston had acquired the interest oft he male Jermy nearest in blood to the original testator.

Rush also opened communication with Larner, who had ten years before set up a claim to the estate, and also with one Thomas Jermy, a gardener at Tooting, then about 70 years old, and, of course, long since dead, urging them to prosecute their claim, and proffering them his assistance in so doing; and at his house were discovered various papers and documents relating to the title, which he no doubt had, got possession of in consequence of his intimacy with the Rev. George Preston. He also entered into agreements with them for a beneficial lease of the farms to himself in the event of them obtaining possession of the estates.

All this, and much more, indeed in substance, all that has here been stated, appeared in evidence in this court 30 years ago on the trial of Rush. It appeared that there were papers and documents in his possession relating to the ownership of Stanfield Hall, among others an old will of the Rev. George Preston, and an old book entitled "Isaac Jermy's account 1753". It was proved that some months before the murder he produced certain of these papers to the two claimants of the property, Larner and Thomas Jermy, with whom he made the agreement already mentioned - that he should assist them in obtaining the estate, and that they would give him lease of the farm. This agreement was put in evidence by the prosecution, and they also put in evidence notice from Thomas Jermy, the claimant, to Mr. Isaac (Preston) Jermy of his claims to the estate - "by reason of and on account of the fraudulent and unlawful means by which you and your father, the Rev. George Preston have been holding possession of it, particularly by your fraudulent taking the same and the Arms of Jermy and claiming of the estate as the nearest of blood to the late W. Jermy of Bayfield, and by rights devised from his will, dated 1751, and your statements in your petition to the Queen in 1838 (for licence to assume the name of Jermy) being false as to your ancestor having purchased of the nearest in blood of the said W. Jermy the ultimate remainder of the estate."

Not long before the murder Rush actually bought down the claimants Larner and Thomas Jermy to take possession of the estate, and it was part of his crafty scheme to throw the suspicion of the murder upon them, for he actually dropped papers in the hall at the time of the murder intimating that the perpetrators of the crime were the two claimants; and this was part of the evidence against him. Larner and Thomas Jermy were produced as witnesses to show the impossibility of this suggestion, and the documents being put into evidence to show the real motive for the commission of the crime by Rush. All these matters were adverted to by the counsel for the prosecution Mr. Sergeant Byles, and by the learned Judge (the late Lord Cranworth, then Baron Rolf.) on the trial of Rush, and they have long, therefore been matters of history and are now revived by the present claim.

The claim in the present case was founded - as was that of Larner 40 years ago, and old Thomas Jermy 30 years ago - on the peculiar devise made by William Jermy in 1751 to the male person of the name of Jermy nearest to him in blood. The object of that devise was to keep the estate in the Jermy family, and in this, as in other cases, it has been shown how through unforeseen circumstances and the lapse of time, the objects of such a devise is frustrated. For nearly a century the estate, in spite of the way in which it was strictly and jealously limited to the Jermy family, has been enjoyed by a family, who, though they assumed the name, were strangers to the blood to the Jermys, and 30 years have elapsed since the claim of the Jermys was last made. In the meantime several generations of Prestons have succeeded to the estate, and the period allowed by law for the prosecution of such claims has long since elapsed. It was sought when the claim was made 40 years ago to get rid of the effect of the Statute of Limitations by the means of the proviso in the statute as to cases of secret fraud, and it was suggested that the fraudulent character of the transaction between old Isaac Preston and the Jermys in the last century was only discovered in the way already mentioned, by the disclosure of the old pamphlets on the subject on the sale of the family library in 1838, but whatever the value of the plea against the statute it would not, of course, be available a second time. 40 years have elapsed since the plea was set up on behalf of the claimant Larner, and 30 years have elapsed since the claim was last made by Thomas Jermy, who has long since been dead. The period of limitation allowed by law since 1833 is only 20 years, and ,indeed, by recent act is only 12 years; but even assuming that the case would be governed by the previous law, the period would be only 20 years, and more than 30 years have elapsed since the two Messrs. Preston (named Jermy), father and son, were murdered by Rush, during which time the estate has been in the peaceable possession of the same family. Though both were murdered on the same occasion, and almost at the same time, yet as the order of their death was known, it was capable of proof that the father was murdered first, and the estate descended to his son, who was murdered immediately afterwards. Thereupon the estate descended to his heir at law, a little girl - in the house at the time, who was actually alarmed by the shots, ran out into the hall where the murderer was pursuing his deadly work, but happily escaped his bullets. Thus more than 20 years since the claim was last made the Preston-Jermy family have been in peaceable possession of the estates, and as the claim has been made their position has clearly been adverse to the claimants who ever they were, and would, therfore bar any claim to the estate. In the last case of the kind, indded, which occurred, the celebrated case of "Selby v Lounds," in which, early in the late century a large estate had been left in a similar way to the right heir whenever he should appear, the claim was made while the old law was in operation, which provided a period of 60 years for the prosecution of a claim to an estate made of the "old writ of right," and accordingly in 1837 the claim was tried in a solemn trial at bar before Lord Chief Justice Tindel and the whole Court of Common Pleas, the last case that was so tried. It is possible that the revival of the old claim may have stimulated Larner to urge his claim, which, as already stated, was urged by force in the ensuing year. But his claim was never legally brought forward in a Court of Law, possibly on account of the failure of the other claims, in consequence of the strong disposition juries have always shown to find in favour of long possession against the revival of stale claims. And down to the present time the possession of the Preston-Jermy family has not been legally disturbed, nor have there been any attempts to prosecute any claim against them in a Court of Law.

Now, for the first time - after the lapse of a century - the attempt was made, and, of course it was confidently anticipated that, though the claim might formally be made, it must necessarily fail. It must be borne in mind that the facts here stated, and which had already been made public in more than one criminal trial in this county were well known to the people of the county, and especially to the class from which the juries came, and that the horrible murders perpetrated by Rush performed upon the two principal members of the family under circumstances of such atrocity, had necessarily impressed those facts in the minds and memories, and inspired them with the warmest sympathies for the unfortunate family who had suffered such affliction and such bereavement amid the horrors of so appalling a crime. All the circumstances of that crime and the history of the property were not only published in the local papers, but were embodied in local publications of a more permanent character widely diffused throughout the county and preserving the memory, not only of the event itself, but of all the circumstances connected with it, and especially the history of the property with which it was so tragically associated. It is to be observed that the family have ever since been in legal possession of the estate, and for a long time afterwards were in actual possession.

The estate, as already stated, descended upon the death of the father and son to the little girl, then13, the only girl of the latter; and the widow of the son, the younger Mr. Preston-Jermy, continued to reside at the Hall for some years, as guardian of her child. She remarried; and afterwards the daughter also married, but died in childbirth, leaving a daughter, an infant; and the estate was let to successive tenants, but has still been in the legal possession of the family down to the present time. It was in such circumstances that a jury of this country was to be impanelled to try a claim, never until now bought into a Court of Law for trial, against a family which has been in possession, through several successive generations, for above a century, and who have been, in consequence of the dreadful affliction they suffered in that most atrocious crime, the object of universal sympathy.

It will not now be deemed surprising that in such circumstances, and especially as the Statute of Limitations had offered an obvious and easy answer to the claim, thus making the law in complete accordance with popular feeling, that it should have been universally felt that the claim was hopeless, and the trial could only have had one result. The case, therefore, did not last long, and, indeed, collapse as soon as it opened. The claim was originally made by a George Taylor, and it stated the will of William Jermy, in 1751, and the ultimate devise "to such male person of the name of Jermy as should be the nearest related in blood to the testator and to his heirs and assigns for ever." It then stated that the tenants in tail male died without issue, the last in 1778 - just a century ago; and that it set forth the defendant is wrongfully in possession of the estate, and the plaintiff claimed to be entitled to the lands, as being the heir at law of one Robert Jermy who died in 1758, and who, on the failure of issue of Thomas Preston (the last tenant in tail male) was "nearest related to the Testator in blood."

The action, it is to be observed, was bought against the husband of Mr. Jermy's deceased daughter and the trustee of her infant daughter, who are in legal possession of the estate, so that the action was in effect against the daughter of the murdered man. The defendants denied the claimants title, and also set up the Statute of Limitations.

Mr. Bulwer Q.C. and Mr. Horace Brown were for the plaintiff, - the claimant. Mr. Day Q.C. and Mr. Lumley Smith were for the defendants - that is the daughter of the murdered Mr. Jermy, and her husband and trustees.

The court was crowded, and the case definitely excited intense interest. The widow of the murdered gentleman was with many other ladies present.

Mr.Bulwer, in opening the case for the claimant, said that he was a man of humble position in life, being, in fact, a railway guard of the Great Eastern Railway at Dovercourt, and he claimed the estate in question, with which no doubt the court were well acquainted, as connected with a dreadful crime, memorable in the annals of the county as one of the most shocking occurrences that ever became the subject of history. He then stated the devise by the original testator under which his client claimed, and went on to state the purchase by old Isaac Preston of the rights and interests of two of the Jermy family in the last century for £20 each; and then he went on to state that his client claimed to be descended from another Jermy nearer in blood to the testator - one Robert Jermy who died in 1758. Assuming this to be so, and to be capable of proof, the claimant will have still to prove his descent from that Robert Jermy who died more than a century ago, and he was well aware of the difficulties which might arise on the proof of such a case. But, supposing those difficulties surmounted, still there remained the Statute of Limitations, which he presumed the defendants' counsel would rely upon, and which, although his client, the claimant, would probably consider it a technical defence, would certainly be fatal to the claim if persisted in.

Mr. Day said of course he would rely upon the Statute of Limitations to save time in contesting an utterly groundless claim, every part of which he disputed, and denied.

The Lord Chief Justice said the defendants had a perfect right to rely upon the Statute of Limitations, which had never been considered as a technical defence in the suit for the recovery of land.

Mr. Bulwer said he did not himself regard it in that light, though probably his client, an uneducated man, might be disposed to do so. He well remembered the eloquent language of Lord Plunkett, in which he spoke of Time as preserving our securities with one hand, while removing them with the other; but such language would probably fall flat on the ear of his client. However, as the Statute of Limitations was to be relied upon, of course it would be fatal to the claim, and so his client had been told, though with the obstinacy of an Englishman he insisted on coming to court. Counsel, however, had to consider not only what was due to their clients, but what was due to the Court; and he, for his part, could not take up the time of the Court and jury in attempting to set up a claim which he knew, after all, would necessarily fail. He had himself desired to avoid the expense of a useless trial, knowing well that his client could not pay the costs; but his learned friend on the other side insisted on the jury being sworn to give a verdict; and, under these circumstances, he could not resist a verdict for the defendants.

The Lord Justice, upon this, directed a verdict for the defendants, observing that Mr. Bulwer had exercised, as he was sure to do, a wise discretion. Looking at the defence founded upon the Statute of Limitations - which was not at all "technical", but was a most substantial and proper defence in a cases where land had been in the possession of a family for a long period - the learned counsel for the plaintiff feeling that he could not possibly resist the defence thus set up, yielded to a verdict for the defendants.

The Jury thereupon at once found a verdict for the defendants.

Mr. Day desired it to be understood that his clients denied and were prepared to dispute every part of the claimants case.


Ref: The Times, 6 August 1878, Page 9, Column a