1803. LATOUCHE V. Ld. DUNSA NY. υ. LATOUCHE. together with Mary Anne Lawless and Henry Farrell in 1799 filed a cross bill, insisting that the Latouches ought to accouut for the whole value of the lands let to Chamley, or at all events for what the estate was let at subject to his lease, alleging that the master had not charged the Latouches with Ld. DUNSANY several sums which either negligently or collusively they suffered Warren and Chamley to receive, and praying that the mortgage of the 9th of November 1786, might be set out of the way of the other creditors, or stand as a security for such balance only as should appear to have been due to Messrs. Latouche on that day on the foot of the incumbrances theretofore vested in them, and praying an account of the receipts of Messrs. Latouche while in possession as assignees of Mrs. Trant's custodiam, and of what was due to them upon the several judgments recited in the bill, and that whatever sums they had or without wilful default might have received over and above the debts for which said custodiams were obtained, might be applied in discharge of the debts affecting the estate of said John Warren according to priority, and that an account might be taken of the several sums received from the tenants of Warren by Chamley, (as against whom this was an original bill) and of the judgments against Warren of which Chamley had become assignee, and of the consideration of any bonds or other securities which he obtained from Warren, and that all his bills of costs against Warren should be taxed, and the acquittances and confirmations executed by Warren to him should be set aside, and that the lease of 16th Nov. 1782, made to Chamley of the lands of Castleknock might be declared a trust for Warren, or declared fraudulent and void, and that accounts might be taken of what Chamley made or without wilful default might have made of Castleknock and Courtduffe, and that whatever sum he should appear to be indebted might be applied in payment of the creditors of Warren. It 1803. LATOUCHE V. Ld. DUNSA NY. V. LATOUCHE. charged that several of the judgments assigned by Chamley to Latouche were either wholly or in part satisfied at the time of such assignment, and it therefore prayed that these judg ments should as against the other creditors of Warren only LA.DUNSANY stand as a security for so much as was really due on the same, and that the master might ascertain what judgments affecting Warren's estate, and then vested in Latouche were for the proper debts of Palles, and that Latouche might be restrained from recovering the same out of Warren's estate, till they had procured a sale of Palles's estate, and likewise praying an account of the sums due on the judgments obtained by the Messrs. Latouche which were included in the mortgage of Nov. 1786, and that the estates of Warren should be sold discharged of the said leases, and that all proper accounts should be directed. Messrs. Latouche by their answer insisted on the agreement of the 9th Nov. 1786, between Warren and defendant David Latouche, in trust for himself and the other defendants; that their custodiam debts were not discharged until 1797, and that they have ever since considered themselves in possession as mortgagees; that the plaintiffs were not entitled to charge them with the defaults of Warren, his other creditors or tenants, nor to claim credit except for the sums which they had actually received during the continuance of their custodiams; that being purchasers for valuable consideration of the original mortgage of 1743, by which the legal estate was vested in them, and having a right to tack to it all the subsequently assigned securities, they were thereby creditors to nearly the amount of the value of the estate; and therefore, and because at or previous to the time of obtaining such assignments they had no notice of the incumbrances claimed by the plaintiffs, or of any other incumbrances affecting the estate, their possession as mortgagees ought not to be disturbed. 1803. LATOUCHE V. Ld. DUNSA NY. V. Chamley insisted that he was entitled to hold for his own use the lease of Castleknock, but admitted that he had always Ld.DUNSANY been a trustee for Warren as to the lease of Courtduffe. But LATOUCHE. with respect to this, it appeared that Chamley had charged Warren with the expense of certain improvements made on the lands of Castleknock, and had got credit for such expense; that Chamley had affirmed, when soliciting Lord Dunsany's confirmation of his leases, that he held Castleknock in trust for Warren, and that the confirmation of 1785 went as fully to Courtduffe (which was admitted to be a trust) as to Castleknock. These causes now came on, upon a re-arguing of the exceptions taken in the original cause, and a re-hearing of the cross cause in which the bill had been dismissed by the master of the rolls, in May 1802. Mr. Burston, Mr. Plunket, Mr. Moore, and Mr. Parsons for Lord Dunsany and the other plaintiffs in the cross cause. Messrs. Latouche are to be considered first as custodees in possession under the custodiams obtained by them 1776, and the assignment of Trant's custodiam; on the foot of these they got into possession of the entire estate of Warren; there is no proof of any account having been settled on the foot of this possession or of these demands, and the first question is, how the Messrs. Latouche are now to account for the rent of this estate. The rent-roll was upwards of 1,100l. per ann. at the time of their getting into possession, sufficient to have overpaid them long since ; yet they have given credit for 1,100%. only as received by 1803. LATOUCHE υ. LATOUCHE. them down to 1786, and they contend they should account only for what they actually received. But we insist they should account as all other creditors in possession are bound Ld. DUNSAto do. A mortgagee may make leases, and therefore he is NY, Ld. DUNSANY bound to account for the rent, at which he might, without his wilful default, have let the land: but under custodiams the land is let by the court, and therefore the custodee is accountable only for the rent reserved by the court: but subject to this distinction, both must account in the same way, and the custodee must account for so much of the rent reserved upon these leases made by the court, as he might without his wilful default have received. It is argued that as to subsequent judgment creditors, the account should be taken differently from what it would be as to mortgagees or elegit creditors. But the contrary follows from the rules and practice of the court: a judgment creditor may redeem, and consequently call for an account, and there can be no difference in the mode of taking it when called for by a judgment creditor. It is no objection to a judgment creditor calling for an account in this court, that he is not entitled in the court of Exchequer to call a custodee to account: that arises only from a defect of jurisdiction on the revenue side of that court, and if there is any weight in this objection, it applies equally to elegit creditors, and the argument would therefore prove too much. Here too were mortgagees, and having knowledge of these and of the other incumbrances, and having kept them out, Messrs. Latouche are now bound to account for what they suffered the debtor to receive: Bentham v. Haincourt, Prec. Chan. 30, Coppring v. Cook, 1 Vern. 270. Maddocks v. Wren, 2 Rep. Ch. 109. Chapman v. Tanner, 1 Vern. 267. It would be mischievous were it to be otherwise: a party taking possession in this way holds himself out to the world as the person who has taken upon him to apply the rents. On these grounds therefore the first account should be taken on the 1803. LATOUCHE v. foot of the possession under the custodiams until Messrs. Latouche might have paid themselves by perception of the rents received under the custodiam leases; and from thence they should account as any strangers ought who had obtruded themselves upon the possession of these lands, for what Ld.DUNSANY they made, or without wilful default might have made. LATOUCHE. It is material to observe the circumstances under which Messrs. Latouche took the mortgage of 1786; no money was then advanced: It was made up of the sums due on their judgments and custodiams, together with those of which Chamley gave and procured assignments: no account whatever was taken on the foot of these several judgments, nor of the rents received by Messrs. Latouche, and this mortgage was not registered until a few days ago; the Messrs. Latouche however filed their bill for a sale on the foot of it, and have obtained a report, the effect of which is to give them the benefit of this mortgage by tacking it to the early mortgages of which they have obtained assignments, to the prejudice of the intervening incumbrancers. On the other side, on behalf of those incumbrancers, we contend that according to the true construction of the registry act (6 Ann. c. 2.) Messrs. Latouche are not entitled in any way to avail themselves of that mortgage either against Lord Dunsany's mortgage or against the intervening judgments. By sect. 4. of that act "every deed or conveyance a me"morial whereof shall be duly registered" (as there prescribed) "shall be deemed and taken as good and effectual "both in law and equity according to the priority of time "of registering such memorial for and concerning the ho66 nors, manors, lands, &c. in such deed or conveyance "mentioned or contained, according to the right, title and "interest of the person or persons so conveying such hon"ors, &c. against all and every other deed, conveyance, or Ld. DUNSA NY. υ. |