of 1814, and of all prior and cotemporaneous encumbrances. The Master was also directed to take an account of what was due to Thomas Alexander and Joseph Cochrane, and to Samuel Cochrane, on foot of their sub-mortgages, and to inquire whether Michael Clayton had any lien as against Sir A. Chichester or any other person upon the lease of 1824, in respect of his costs. The Master by his report dated the 27th of April 1842, found the sums due to the plaintiff and the several sub-mortgagees, and found that there was due to Clayton for business done for Sir Arthur Chichester, from and previous to 1827 down to September 1837, £813. 13s., and further found that Clayton had no lien upon the lease of 1824 as against the plaintiff, or any other creditors of Sir Arthur by mortgage or judgment, but that he had a lien as against Sir Arthur himself and his assignee. To that part of the report which found that he had no lien as against the plaintiff, or the other mortgage and judgment creditors of Sir Arthur, Clayton excepted. No other exception was taken to the report. Mr. W. Brooke, Q. C., and Mr. Nelson, Q. C., for the exception, relied on Bernard v. Drought (a); Ex parte Shaw (b); and M'Cann v. Beere (c). Mr. Gilmore, Q. C., and Mr. M'Donnell, Q. C., contra, cited Furlong v. Howard (d), and Hutchinson v. Joyce (e). The LORD CHANCELLOR. The only doubt upon the present question arises from that case before Sir A. Hart. I am not aware of any other authority for the proposition there laid down. Now, that is doubtful, so far as it proceeds upon the particular facts there before the Court, because in the general course of business, the deeds are never delivered to an annuitant, he never has them in his custody; therefore, on that ground alone, that decision may be questioned. But so far as it professes to be an authority for the general proposition, that a man who has conveyed away an estate in mortgage, may, by employing a Solicitor, subsequently give to that Solicitor a lien upon the title deeds of the mortgaged estate, which will prevail against the mortgagee, I apprehend it is not law. The conveyance of the estate to the mortgagee vests in him the legal right to the deeds, and he may maintain an action of trover for them against any one to whom the mortgagor may have delivered them. Here the mortgagee (a) 1 Mol. 38. (c) 1 Hogan, 129. (e) 2 Jones, 122. (b) Jacob, 270. (d) 2 Sch. & Lef. 115. 1842. Chancery. SMITH V. CHICHESTER 1842. Chancery. SMITH บ. CHICHESTER had the legal estate in the old lease which subsisted, notwithstanding the grant of the new lease to the mortgagor, and to that extent, therefore, it cannot be questioned that the lien cannot prevail against him. Then the decree in this cause declares the new lease to be a tack to the old lease, and that the mortgagee is entitled to the benefit of it, and therefore, a new title was then added to the old title which he had under the former lease. So that the title of the mortgagee is composed in part of the equitable estate which he acquires under the decree, and partly of the prior legal estate. It would be singular then that the mortgagee should hold a title partly composed of the legal estate, under the old lease, and partly of the equitable estate under the new, and that this claim of lien should be invalid as to the former portion of his title, and valid as to the latter. That would be a singular construction to adopt. But what are the circumstances under which this claim is made? Now, first, at the time the deeds were delivered to Mr. Clayton, there was a suit pending to foreclose this mortgage, and without deciding the effect of lis pendens upon him, it is a circumstance entitled to some weight. In the next place, he claims a lien for bills of costs already incurred when the deeds were delivered, and besides, he ought to have known the state of the title. He must have known that the new lease was granted in consideration of the surrender of the old, and was bound by the equities that affected it. He was bound to inquire, therefore, what had become of the old lease; he should have searched the registry, and if he did, he would then have ascertained the existence of this mortgage, and known what were the rights to the title deeds. There are several cases upon this subject all acting upon the same principle. The case of Hooper v. Ramsbottom (a) decided that the right to the estate carried with it the right to the deeds. There the vendor delivered the deeds to the purchaser as an escrow to take effect on the payment of the part of the purchase money which was left unpaid. The deeds were left with the Solicitor, who allowed them to be pawned by the vendor, and it was held that the assignees of the purchaser were entitled to them upon tendering the balance of the purchase money. Gibbs, C. J., in giving judgment, says, "This comes to the case that "the person who is entitled to land, has a right to the title deeds of that "land. As to the claim of the defendants, it matters not that they had "received the deeds on a valuable consideration; though there was "nothing on the face of such of the deeds as were deposited with them, "which shewed that there was a title in Wells, yet the deeds were de"posited by a person who had obtained them by fraud." There, though the deed was delivered as an escrow, not to be delivered to the purchaser until the residue of the purchase money was paid, yet the Court held, (a) 6 Taunt. 12. that he had such a right to it after the title to the estate was vested in him, by the condition annexed to the delivery of the deed, that no pledge could be made of it in the interim which would be effectual to defeat the original right so acquired by him. In Harrington v. Price (a), it was held, that the vendor of an estate who retained the title deeds after the sale, could not make a deposit of them with a third person which would be valid against the purchaser. Lord Tenterden says (b), "It is an established principle, that whoever is entitled to the land, has also a right to the title deeds affecting it." That is a principle which we find pervading all the cases since Buckhurst's case (c), viz., that the right to the estate carries with it the right to the deeds. Then he proceeds"But it is contended that the purchasers here were negligent in not securing "the title deeds, but leaving them in the hands of the vendor. Fraud is "not suggested (which might have made a difference), but only a neglect "by which the vendor has been enabled to commit a fraud. Is there, "however, no negligence on the other side, when a man advances money "upon title deeds without inquiring as to the possession of the land ?" There was a subsequent case of Philipps v. Robinson (d), where it was held that a party who deposited the title deeds of an estate with another, and afterwards parted with the estate, could not recover the deeds from the bailee. There, there had been a conveyance of the estate to another person, and it was held that the person with whom they had been deposited became upon the conveyance the agent of the purchaser, and that the person who deposited them had no right to the deeds as against the latter, upon the principle that the right to the estate carries with it the right to the deeds. Now that applies a fortiori to the case of a Solicitor; and the Court should look with great jealousy at a claim by a Solicitor to detain deeds which were handed to him by his client in opposition to the prior solemn conveyance of that client vesting the deeds and the estate to which they belong in another. It would not be for the benefit of the Solicitors themselves, but, whether or no, I apprehend the law is clearly otherwise-the right to the estate carries with it the right to the deeds: the Solicitor of the mortgagor can acquire no lien upon them against the mortgagee, and I must therefore, overrule this exception. 1842. Chancery. SMITH v. CHICHESTER Mr. Brewster, Q. C., for one of the sub-mortgagees, having applied for his costs, Mr. W. Brooke, Q. C., for the assignee, and Mr. S. B. Miller, for Sir Arthur Chichester, contended that those costs should be borne by the 1842. Chancery. SMITH V. CHICHESTER plaintiff, and that he should not be allowed them against the estate, as the necessity for bringing the sub-mortgagees before the Court had been occasioned by his own act, and cited Skip v. Wyatt (a). Mr. Gilmore, Q. C., and Mr. Hutton, for the plaintiff, relied on the cases of Wetherall v. Collins (b), and Bartle v. Wilkins (c), as shewing that the mortgagee was entitled to all costs arising out of his dealings with the estate. The LORD CHANCELLOR. I should have thought that there was some settled practice upon this point. The difficulty that I feel respecting it arises from the plaintiff here not having joined the sub-mortgagees as co-plaintiffs with him, and no sufficient reason has been stated for his not having done so. But I apprehend the authorities are conclusive as to his right to the costs of those parties generally. The case of Skip v. Wyatt decided that where the devisee of a mortgagee made the mortgagee's heir a party to a foreclosure suit, in order to have the will established against him, the estate should not be burdened with the costs. But other cases have since decided both points, for Wetherall v. Collins decided that where a mortgagee had assigned the mortgage upon certain trusts, the costs incurred by bringing those cestui que trusts before the Court, should be borne by the mortgagor. There, the bill was to redeem, and only one conveyance had been executed by the mortgagee, but it is very difficult to say that if a mortgagee execute one deed assigning the mortgage money, the costs occasioned by that shall be borne by the mortgagor, but that if he execute a second assignment, the costs occasioned by that are not to be borne by the mortgagor; it is very hard to draw any such distinction. In that case the Vice-Chancellor says "It seems at first "sight a great hardship that the mortgagor is to pay the costs of persons claiming under the mortgagee, and made necessary parties by his act; "but it is the constant course of the Court, and it is to be supported upon "this principle, that at law after a mortgage is forfeited the estate is the "absolute property of the mortgagee, and he may deal with it as his own; "and that if the mortgagor come for the redemption, which the equity "of this Court gives him, it must be upon the terms of indemnifying the "mortgagee from all costs arising out of his legal acts." In Bartle v. Wilkins the question arose upon a bill of foreclosure. That case was this, the mortgagee upon his marriage settled the mortgage money upon certain trusts for the issue of the marriage, and after the mar riage he filed a bill to foreclose the mortgage, making the trustees 1842. Chancery. SMITH v. CHICHESTER WESTBY v. WESTBY. June 1, 2 & 6. A nephew who upon the deuncle without cease of his NICHOLAS WESTBY, by his will bearing date the 3rd of November 1798, devised estates in the county of Clare, of which he was seized in fee, to his brother William Westby for life, remainder to his (William Westby's) eldest son Nicholas for life, remainder to the first and other sons of Nicholas in tail male, remainder to George Westby, second son of William, as remainder male issue would succeed man to an estate of which the uncle was in possession, and would also have upon the same event the possibility of succeeding to the reversion of another estate, if undisposed of by his own father, instituted civil proceedings for annulling the marriage of the uncle, on the ground that he had married the sister of his deceased wife. There were at the time several children of the marriage, and an agreement was entered into between the uncle and nephew, by which the latter agreed to give up the proceedings, and never to institute any other proceedings for the same purpose, and the former agreed to secure a sum of money to the daughters of the nephew, who, if the marriage were not impeached, would be unprovided for. The son and executor of the uncle filed a bill to be relieved from the arrangement; Held, that there was nothing contrary to public policy in the agreement, and that it was a fair family arrangement which the Court would sustain. |