CH . v. ROBINS. 201. per annum, and a few household goods-executed a deed of GRIFFITHS gift of all her real and personal property to Griffiths and his wife, only reserving a life interest, and depriving herself of the power of applying any part of the principal of her small property for her maintenance during her life. It is a suspicious circumstance, that there is a recital contained in the deed, of a fresh lease to Griffiths, and that no such lease appears to have been executed. I do not think it necessary, however, to enter into all the transactions stated to be attendant on the deed, and the manner in which it was prepared. It is sufficient to say, that the defendants have not made out that case which the policy of this Court requires from persons standing in that relation to the donor in which they had placed themselves. BELLCHAMBER v. GIANI. (3 Maddock, 550.) Costs-Renewed motion-Non-payment of costs of previous motion. 1819. Jan. 16. LEACH, V.-C. NOTICE of a motion had been given at a former seal. The motion [3 Madd. 550] was not made; and on an application under the late General Order 40s. costs were given. The motion was now renewed by Mr. Cullen, but the costs of the former motion were not paid; and on Mr. Wakefield's objecting that the motion could not be made until the costs occasioned by the former notice of motion were paid, as directed, the VICE-CHANCELLOR concurred in the objection, and refused to hear the motion. BRANDON v. BRANDON. (5 Maddock, 473.) A receiver may distrain without applying to the Court. 1821. Feb. 20. LEACH, V.-C. A MOTION was made on behalf of one Powell, a receiver appointed [5 Madd. 473] in this cause, that it might be referred to the Master to inquire and state, whether it would be for the interest of the parties interested in the rents and profits of the testator's estates, that the receiver should be at liberty to make distresses, or to take any other proceedings against the tenants in arrear; and that in case the Master should be of opinion, that it would, then that the receiver might be at liberty to make such distresses, or take such other proceedings in the name of the trustees; and that the expenses BRANDON. attending the same, might be allowed him in his accounts. BRANDON v. Mr. Roupell, in support of the motion : The receiver wishes for the sanction of the Court before he proceeds against the tenants, especially as he must distrain in the name of the trustees who have the legal estate. The effect of a distress may be to ruin the tenant. The tenant besides may replevy, and occasion considerable expense. He cited Hughes v. Hughes (1), Pitt v. Snowden (2), Shelly v. Pelham (3), and Mitchell v. Duke of Manchester (4). THE VICE-CHANCELLOR: The register states that the practice is for a receiver to distrain upon his own discretion for rent in arrear within the year; but if in arrear for more than a year, then an order is necessary. 1821. Feb. 21, 22. LEACH, 5 Madd. 475] NORRISH v. MARY MARSHALL AND THOMAS MARSHALL (5). (5 Maddock, 475-482.) N. mortgaged to C. to secure 1,0007.; C. assigned the mortgage to M. to secure 7001.; but no notice of the assignment was given to N., who afterwards delivered goods to C. in satisfaction of the mortgage. Held, on a bill by N. against M. to have the mortgaged deeds delivered up: That delivery of goods to C. by N. was a valid discharge of the mortgage debt, and was a good payment against M.; but, An account was directed as to what part of the mortgage money was paid, as C.'s evidence, from his conduct, could not be admitted as a sufficient proof. By indenture dated 31st January, 1800, between the plaintiff and Benjamin Roper, his trustee, of the first part, and James Collins of the other part; the plaintiff and Roper demised certain premises to Collins, his executors, &c. for the term of one thousand years, with a proviso, that if the plaintiff should replace and transfer at a day since past, to Collins, his executors, &c. the sum of 1,000l. (1) 3 Br. C. C. 86. (2) 3 Atk. 752. (3) 1 Dick. 120. (4) 2 Dick. 787. (5) In Dixon v. Winch [1900] 1 Ch. 736, 69 L. J. Ch. 465, 82 L. T. 437, C. A., COZENS-HARDY, J., thought that the negligence of a mortgagor who pays off his mortgage without asking for his deeds is greater than the negligence of a transferee who omits to give notice of his transfer; see also Turner v. Smith [1901]1 Ch. 213, 220, 70 L. J. Ch. 144.-O. A. S. NORRISH v. Five per cents. (which had been sold out by Collins, and the produce paid to the plaintiff), and interest in the mean time at five per MARSHALL. cent. payable half-yearly, then the term was to cease. On the execution of this deed, the plaintiff delivered to Collins all the title deeds relating to the mortgaged premises. The stock was not retransferred at the time appointed, but the plaintiff afterwards fully accounted with Collins, and paid off the mortgage, and on the 30th October, 1818, Collins at the request of the plaintiff, and to keep the term on foot, conveyed the same to one Andrew Hewson (a trustee for the plaintiff), to hold to him, his executors, &c. for the residue of the term. At the time of this conveyance, the plaintiff desired to have the title deeds delivered up, but Collins stated they had been delivered by him to a Mr. John Marshall, and that the same were in the hands of Mary Marshall, his widow and administratrix, and of Thomas Marshall, the son of John Marshall. On application to Mary and Thomas Marshall for the title deeds, they claimed a right to the same, *under a deed poll dated the 18th July, 1812, in which the indenture of mortgage of the 31st January, 1800, was recited, and that the same remained due and owing; and by the said deed poll it was declared, that Collins should from thenceforth stand possessed of the mortgaged premises, upon trust to permit the said John Marshall (who, together with Mary his wife, had advanced 700l. to Collins) to receive and take the interest of 7001. during his life, and after his decease to pay the interest to Mary his wife, during her life, and after her decease to pay the 7001. and all interest due thereon, to Thomas Marshall the son, &c. The bill, stating these facts, further stated, that if the lastmentioned deed was really executed, and the consideration paid, yet that the greater part of the original mortgage had been satisfied. before the deed poll was executed, and that the remainder was paid by the plaintiff before he had any knowledge of the deed poll. The prayer of the bill was, that the defendants might be decreed to deliver up to the plaintiff all the title deeds relating to the mortgaged premises, and that in the mean time, they might be restrained by injunction, from pledging or depositing, or parting with the same. The defendant, Thomas Marshall, by his answer admitted the deed poll, and stated a bond was also given by Collins as a further security, and that Collins at the time of the execution thereof, was the attorney and solicitor of the plaintiff, and that Collins undertook [ *476 ] NORRISH v. MARSHALL. [ *477 ] [ *478 ] to inform the plaintiff of the deed poll, and admitted that the title deeds were delivered up on the execution of the deed poll, and submitted that he was entitled to retain the title deeds until the 7001. and interest were satisfied. On the part of the plaintiff, the original mortgage was proved, and Collins was examined, who stated the original mortgage had been paid off by the plaintiff in money and wines, the particulars of which were set forth in a schedule annexed to his examination; and that previous to his mortgage being paid off, he gave no notice to the plaintiff of the deed poll, and that he never undertook to give such notice. The death of Mary Marshall was also proved. On the part of the defendant, Collins was cross-examined, and stated, that in July, 1812, and before and after, he was usually and generally, and upon divers occasions, employed by the plaintiff as his attorney and solicitor, and in the management of his affairs; and that the last charge made by the plaintiff against the defendant for goods delivered to him was in September, 1818; and that he never informed John Marshall, or his wife, that the original mortgage was satisfied, as he meant to repay the 700l. without making the plaintiff privy to the circumstances, and that for the same reason he had never acquainted the plaintiff with the deed poll. Hewson, the partner of Collins, was also cross-examined, and stated, that before, in, and after, July, 1812, the plaintiff usually employed Collins and the witness in transacting business for him as attornies and solicitors, and in the management of his affairs; and he further stated, that the original mortgage was paid off by the plaintiff (who is a wine and brandy merchant), by supplying Collins with wines and spirits, and by *receiving a sum of 321. and upwards, as a debt due to the plaintiff; and that to the best of his belief, the last charge for goods delivered to Collins was in September, 1818. He further stated, that in September, 1818, he informed the plaintiff that Collins was insolvent, and that he was alarmed, and asked what were become of the deeds, and said, that by supplying Collins with wines, he had more than satisfied the principal and interest due on the mortgage to Collins. On the opening of the case, an objection was taken that Collins ought to have been made a party to the suit. On the part of the plaintiff it was contended, that he was not a necessary party, for Collins is examined and cross-examined as a witness, and he states his mortgage was satisfied. Hill v. Adams (1), and Chambers v. (1) 2 Atk. 39. Goldwin (1), were cited. On the other hand it was urged that the NORRISH defendant denied the original mortgage was satisfied, and that MARSHALL. Collins had acted so improperly, that his testimony could not be credited; that in the cases cited, the mortgage was wholly assigned, but that here it was only partially assigned, the original mortgage being for 1,000l. and the deed poll being only to secure 7001.; that Collins might make some claim, and that to prevent multiplicity of suits, it was necessary all parties interested should be made parties, and that Collins therefore was a necessary party. Mr. Horne, and Mr. Pemberton, for the plaintiffs. Mr. Wetherell, and Mr. J. Wilson, for the defendants. THE VICE-CHANCELLOR: Where a mortgagee assigns the whole benefit of his security, he is no necessary party to a bill for redemption, *for he has no longer any interest in the subject. But where he assigns, as in this case, only a part of the benefit of the security, his interest in the subject continues; and he is, generally speaking, a necessary party. In this case, however, he has been examined as a witness for the plaintiff, and swears that he has been fully paid, and has no longer any interest in the subject; and I will therefore permit this cause to proceed without him. The cause was now argued on the merits for the plaintiffs: The plaintiff having paid off the mortgage, is entitled to have his title deeds delivered up by the defendant. The subsequent mortgage to Marshall and wife was not with the privity of the plaintiff, he had no knowledge of it, until he had discharged the mortgage. Marshall and wife should have communicated their mortgage to the plaintiff; if they had done so, payments made by the plaintiff to Collins after such notice, would have been unwarranted; but a mortgagor, until notice of an assignment by the mortgagee, may deal with the mortgagee, as if no such assignment had been made, and the assignee takes, subject to all the equities as between the mortgagor and mortgagee; Matthews v. Walwyn (2), Williams v. Sorrell (3), and what is said in Chambers v. Goldwin (4), are authorities to that effect. The defendants have no equity entitling them to retain the title deeds; their loss is attributable to their neglect in not giving notice of the assignment to them. (1) 7 R. R. 181 (9 Ves. 254). (2) 4 Ves. 389. (3) See p. 11, ante. [ *479 ] |