1803. v. bankruptcy). Besides, Lord Dunsany could only take what Mr. Warren had then to give, and he could only give LATOUCHE subject to Messrs. Latouches' mortgage, and the words of the act are" according to the right, title, and interest of the person conveying," &c. 66 To prove that creditors could not sustain this suit, they cited Utterson v. Mair, 4 Bro. C. C. 270. As to the claim of Messrs. Latouche to be allowed against the other creditors the full amount of the judgments assigned to them by Chamley; although the act enabling an assignment of judgments gives all equity against the assignee which might be had against the conuzee, yet that could only render it necessary to inquire of the conuzor whether he had any equitable objection to make to the judgments, and here the conuzor had joined in the assignment; they could not therefore have had any cause to suspect that any of these were satisfied judgments. Lord CHANCELLOR. The questions in this case are brought to a pretty narrow compass when the circumstances are considered. Mr. Warren is in possesion of an estate subject to a variety of incumbrances, by mortgage and by judgments,and under these circumstances Mr. Latouche gets into possession of the estate as assignee of a custodiam obtained by Mrs. Trant, and also as being himself a custodiam creditor: after being in this situation he deals with the estate through the medium of his attorney Mr. O'Brien with Mr. Warren's attorney, Mr. Chamley: and he is the only creditor as far as I can find who receives any thing out of the estate; the rest of the rents VOL. I. X Ld. DUNSA NY. Ld.DUNSANY υ. LATOUCHE. May 20. 1803. LATOUCHE V. Ld. DUNSA V. NY. have not been made available during many years to discharge the debts and incumbrances. The first question for consideration is with respect to the Ld.DUNSANY mode in which possession was thus obtained; and with respect to that, Mr. Latouche himself has said expressly in his answer and in his affidavit made for the purpose of resisting the application for a receiver," Iam and have been since the year LATOUGHE. Custodee is to account with creditors as a mortgagee in possession. แ 1777 in possession first as a custodiam creditor and then as a mortgagee, it having been agreed between Mr. Warren "and me that when I should be satisfied as to the custodiam "debts I should hold as mortgagee.” Mr. Latouche therefore has no right to complain that he is to be considered as a mortgagee in possession; so far as he has not a right as a custodiam creditor. As a mortgagee in possession, when he is to account in a suit instituted by himself to bring the estate to a sale and to have an account of incumbrances in order to dispose of the produce among the persons entitled to it, unquestionably he ought to account for such rents as he has received or without wilful default might have received. The situation in which he stood as a mortgagee, entitled him to call upon himself as a custodiam creditor to apply the rents which he might have received in discharge of the custodiam. Under these circumstances, which are peculiar to this case, I can have no doubt that he ought so to account from the beginning. But I think so too in the common case of a custodiam creditor, for I cannot see on what ground a custodiam creditor is to account to other persons having claims but on that of a mortgagee; he is not in a better situation. The morte gagee is liable to every demand which may be made against the estate by persons having legal claims, whereas the custodiam creditor is fenced round with advantages enabling him to keep out other creditors which the mortgagee has not, and 1803. LATOUCHE Ld. DUNSA- is more capable than he is of acting collusively with the debtor; therefore a stricter hand ought to be held over him than over the mortgagee: the facts in this case strongly prove the necessity of such a decision, because it is manifest that Mr. Latouche has held out creditors, and that he is insist- La. DUNSANY ing on the benefit of demands which he has himself from time to time acquired on the estate, which in the hands of other persons would have entitled them to call on him as custodee to account. The principal objection which I have heard raised to this, is the want of diligence in the other creditors. What is this want of diligence? here is a person in possession by grants in custodiam, which enable him to keep possession of the estate with considerable advantages, and to prevent any person having a demand from being satisfied until the custodiam debt is paid off, except by a circuitous process; it is said they might obtain grants in custodiam ; but unless these were likely to take effect by perception of the rents in the life time of Mr. Warren, they would put themselves to expense probably without obtaining any benefit. But is not a person in the situation of a creditor in possession bound to use his possession as the law supposes he will, that is, in satisfaction of his debt? I think he is, and therefore I should hold in the common case that a custodiam creditor is to be treated at least as a mortgagee. But in this case the dealings between Mr. Latouche, Mr. Chamley and Mr. Warren shew that this possession of Latouche ought not to be considered a bona fide possession as against other creditors. I think where a person endeavours to protect himself from a demand founded on his abuse of his possession, he is required to shew that he acted innocently and without an idea that any person could be injured by his v. LATOUCHE. 1803. LATOUCHE V. Ld. DUNSA NY. V. the creditors have a right to conduct; whereas, on the contrary, Messrs. Latouche shew that they were anxious to obtain the first mortgage in order to have a sale of the estate; they actually kept out Mr. Cary, who was a mortgagee, and who endavoured to(a) Ld. DUNSANY avoid the effect of the custodiam, so far as it deprived him of the rents and profits; therefore if his interest stood separate LATOUCHE. In proceedings as against Messrs. Latouche, no doubt they ought to account by creditors, all with him, and their purchasing in his interest will not affect the other creditors, who have a right to the benefit of the acts of Mr. Cary: all creditors have a right in proceedings of this nature, to the benefit of the diligence used by other creditors, for the court is to settle the priority among the creditors, and to dispose of the fund according to equity; and if a man is to account in a particular way as against one creditor, he must account in the same way as against all, or justice will not be done. The only person against whom Mr. Latouche is not so to account is against Warren himself, and those who claim as yolunteers under him; there is no doubt, therefore, as to the mode of their accounting. the benefit of the diligence of any of them. With respect to the quantity of rent also, a clear line may be drawn; the property (except the lease to Chamley) was let to tenants, and of course the rents were ascertained.. As to the lease to Chamley, this difficulty occurs, that the lands of Castlenock have actually produced since the year 1787 a much larger sum than the rent reserved in that lease; and it is contended that they ought to be chargeable to the extent of that produce: this would be dealing harshly with them, and for this reason; they were custodiam creditors; if this lease had not been made to Chamley, they had a right to have the lands let under an order of the court of Exchequer, and if they had been so let they probably would not have produced so much. But with respect to Chamley's rent; (a) Vid. the decretal order; post. 1803. LATOUCHE. υ. Ld. DUNSA Messrs. Latouche have considered that rent as payable to them as custodees, and to the extent of the rent reserved, I think they were bound to receive that from Chamley, and to that amount they must be charged; it was their duty to have received it, and to have applied it in discharge first of Ld.DUNSANY the custodiam debt and then of the mortgage. NY. LATOUCHE. The registry of a deed,&c. is not notice. The next consideration is one of considerable importance; with respect to the mode in which Messrs. Latouche are to rank as to priority. It is insisted that they are entitled to tack the mortgage, of which they obtained an assignment from Abbott, to all the other subsequent securities down to the mortgage of 1786. Now, I think that the true construc- The registry tion of the registry act does not permit this sort of tacking. aet in Ireland That the registry is to be considered as notice to all intents tacking. and purposes, is, I think, what one would not be inclined to hold when one sees the effect of so considering it; if it is to be considered as notice because it is an intimation of the existence of a deed put upon record, it must be notice of every thing contained in that deed, for a party would be bound to inquire after the contents of that deed: if it be notice, it must be notice, whether the deed be duly registered or not; it may be unduly registered, and if it be so the act does not give it a preference, and thus this construction would avoid all the provisions in the act for complying with its requisites. The meaning and intention of the act is, to secure persons taking charges upon estates; to provide that they should have that to resort to, which would enable them to take with more security. Now, tacking does tend most strongly to prevent purchasers (in which description mortgagees are included) from being so secured, because by its operation all intermediate incumbrances are to be prejudiced; they cannot be secured unless the effect of the act be to require all instruments affecting the estate to be brought by |