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STEVENSON and that the Court arrived at a contrary conclusion after long
discussion; and that it was hard on Mr. Stevenson that he should be held responsible for a mistake upon a nice and delicate point of law. But here he thought proper to depart from the ordinary mode of preparing heritable securities, which was to grant an obligation to infeft by the double manner of holding, and in so doing he must be considered as undertaking to do what was necessary to render the mode which he adopted effectual for its purpose ; and if, whether from ignorance or inadvertence, he failed to do so, he must be held responsible for the consequences. On this ground I considered Mr. Stevenson bound to make good the loss arising in this case from the want of confirmation.
It may be proper to notice two points which were relied upon for [ *120 ]
the defence. First, it was said that *Stevenson at the time he prepared the security, had not the title-deeds in his possession, and did not know whether they might not contain prohibitions and irritancies excluding every holding except under the grantor's superior. But without considering what might be the effect of the prohibition, if any such existed, it is sufficient here to say, that it appears in evidence that the title-deeds were offered to Stevenson for inspection, and that he had an opportunity to consider and examine them, so that he could not rest any defence on any such supposed clauses. When it was said, that at the time when Stevenson delivered the security to Rowand, he informed him that it was not perfect, and that something remained to be done, on looking at the whole of the case, that part of it does not seem to be attended with any doubt or difficulty. It is not pretended that he said to Rowand that confirmation was necessary; and it is evident that he only meant to intimate, that as the security was taken in the name of Mr. Wardrob, it was proper that it should be transferred from Wardrob to Rowand, in order to guard against any claim upon it by Wardrob’s creditors, or the accident of his death, or incapacity; and that without this it was not therefore complete without something further being done. Nothing was said to call the attention of Rowand to the circumstances that confirmation by the superior was still wanting, and he was not solicitous about the assignation from Wardrob, who was his intimate and confidential friend and partner, of whose solvency he was assured.
On every principle of law and justice then, the appellant is bound to make good the loss to the respondents.
1799. Jan, 28,
Lord LOUGH. BOROUGH
L.C. 14 Ves. 3897
WILLIAMS v. SORRELL (1).
(4 Vesey, 389—390.) After an assignment of a mortgage payments to the mortgagee without notice must be allowed by the assignee. By indenture, dated the 10th of April, 1792, Benjamin Sorrell mortgaged certain leasehold premises in the county of Middlesex for the remainder of his term of sixty years, to secure the sum of 3001. with interest to Thomas Clifton, subject to redemption upon payment of the principal and interest upon the 29th of September following; and the said indenture contained a covenant by the mortgagor for payment of the mortgage-money and interest; and he gave a bond of the same date for the same.
Thomas Clifton by indenture, dated the 16th of January, 1794, in consideration of 6001. advanced to him by Ann Williams, assigned the mortgage to Ann Williams, her executors, administrators, and assigns, subject to redemption on payment of 6001. and interest on or before the 16th of January, 1795; and as a farther security Clifton mortgaged other premises ; and he gave a bond of the same date in the penalty of 1,2001.
The assignment of the mortgage was duly registered.
Sorrell upon the 25th of January, 1796, paid to Clifton 1001, on account of the principal, and 141. 108. for interest, due on the mortgage : the receipts for which sums expressed the former to be “in part of 3001. secured by mortgage," and the latter to be “ for interest due at Lady Day next.” Upon the 22nd of May, 1796, Sorrell paid to Clifton the farther sum of 1001. on account of the said principal money ; the receipt for which expressed that payment to be “in part of 2001. due upon the mortgage.”
l'pon the 18th of May, 1797, a commission of bankruptcy issued against Clifton, and he was duly declared a bankrupt.
In July, 1797, the assignee of the mortgage filed the bill for a foreclosure; charging, that the registry of the assignment was notice to the mortgagor.
Upon the 14th of September, 1797, the money remaining due by the defendant for principal and interest, the payments made to
WILLIAMS Clifton being deducted, and the costs up to that time, were tendered SORRELL. on the part of the defendant to the plaintiff, and refused. [ 390 ] The mortgagor by his answer denied any notice of the assignment
until the 22nd of April, 1797 ; when he was applied to by the solicitor for the plaintiff for the whole 3001. and interest; and he denied collusion; and prayed costs from the time of the tender.
THE LORD CHANCELLOR :
This is precisely the question, whether after an assignment of a mortgage payments made to the mortgagee without notice must not be allowed ?
The Solicitor-General, for the plaintiff : After the late case of Mattheu's v. I'alluym (1) it is difficult to contend against that. The only difference in this case is, that this is a mortgage of premises in the county of Middlesex ; so that there was a memorial registered under the statute (2); which is a species of notice, but, I am afraid, not for this purpose.
Mr. Piggott, for the defendant: The Registry Act has nothing to do with this. A subsequent purchaser or mortgagee is bound to look: but this case was not the object of the statute. This mortgagor had no notice till above three years after the assignment. The assignee therefore put it in the power of the mortgagee to cheat the mortgagor. A mortgage is a security for a debt; as your Lordship said on the late occasion.
The LORD CHANCELLOR decreed, that the defendant, the mortgagor, should be at liberty to redeem upon payment of what remained due, deducting the payments made to Clifton, with costs to the time of the tender only. (1) 4 Ves. 118.
(2) 7 Anne, c. 20. [Am. 54 & 53 Vict. c. 10.]
JACKSON W. JACKSON (1).
1804. (9 Vesey, 591-604.)
June 16, 18.
July 4, Upon appeal the decree was varied, according to the judgment of the
Lon! LORD CHANCELLOR, that, though by the residuary disposition to the ELDON. testator's two sons and the survivor, their or his heirs, executors, &c. they L.C. took as joint-tenants the leasehold and personal estate embarked in trade, r9 Ves, 5917 upon all the circumstances, the transactions for twelve years, as between themselves a severance was to be implied both as to the profits and the capital.
In this cause a petition of appeal was presented by the defendant Collingwood Forster Jackson, from the decree pronounced at the Rolls (2), declaring that the defendant and his deceased brother William Jackson were tenants in common of the profits arising from the employment of their father's residuary personal estate in trade during their joint lives, and that they remained jointtenants of the capital by the terms of the residuary disposition in the will.
Mr. Richards, Dr. Romilly, and J. Steele, for the plaintiff
[Mary Jackson, who was the widow and sole executrix and
residuary legatee under the will of William Jackson) : Either this is a tenancy in common by the terms of the will: or it has become so by the manner in which these brothers carried on the business ; and the plaintiff has a right now to insist, that it was a tenancy in common, as to all the personal property, trade, &c.; for we do not admit the decree to be perfectly right; and though the plaintiff has not appealed, yet as the defendant has appealed from the whole decree, the Court will attend to any objection ; and make the proper decree now.
Secondly, if that should be construed a joint-tenancy, then as to the profits they are to be considered entitled *for life for their own benefit, subject only to the particular charges.
On this point the plaintiff supported the judgment of the MASTER Of The Rolls, but the argument upon the construction of the will as to the division of profits became immaterial, having regard to the course actually adopted by the two sons in dividing the profits between themselves.]
Thirdly, if upon the will the construction must be a joint-tenancy,
urris v. Barrett, p. 246, below.
(2) 7 Ves. 535.
yet from the manner in which the business was carried on, with the permission of the trustees, by the two sons, in their own names, dividing the profits, it is not competent to one of those partners now as between themselves to say, he was mistaken. The evidence is clear as to their conception of the nature of their interests in the business: the one complaining that the other had drawn out more than his proportion, &c. Though a legacy of stock, &c. to two is joint, and, if continued, or laid out, in stock, it still continues joint, yet, if carried into trade, the consequence is a severance. That is the necessary effect of the application.
MIr. Lloyd and Mr. Bell, for the defendant, in support of the
This is not merely a bequest of a trade; though a *trade is one article of the trust estate, disposed of for all the purposes of the will. If the trustees had stood out, the sons could not have forced themselves into the trade. They entered by permission; and the trustees considered themselves as agents at a salary; and therefore inspected the books, and superintended the whole. No fresh agreement took place. Carrying on the trade only upon the trusts of the will, which were not fully executed during their joint lives, the legacies not being paid, they were not partners, unless they are so by the will. Even the word “equally,” which is considered as of peculiar effect in creating a tenancy in common, has been overcome: Freuen v. Relfe (1). A severance as to part would not be a severance as to the whole. Upon the mere construction of this will the capital cannot be distinguished from the profits : Willing v. Bayne (2) ; Hall v. Digby (3).
THE LORD CHANCELLOR :
It is very difficult to conceive the principle of the decision, that these persons take the profits in a different manner from the capital ; that they are tenants in common of the profits by implication from their trading, and are to continue joint-tenants of the fund producing those profits. I do not recollect an instance of a bequest to two jointly of a trade, and nothing else, upon which the question, whether their merely entering into the trade makes a