Ashworth and Another v Mounsey
| Jurisdiction | England & Wales |
| Judgment Date | 14 November 1853 |
| Date | 14 November 1853 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 75
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 C. L. R. 418, 23 L. J. Ex. 73; 2 W. R. 41.
ashworth and another v. MouNSEY. Nov. 14, 1853.-T., being possessed of a plot of land for a certain term of years, by indenture of the 24th of April, 1845, assigned it by way of mortgage to S. as a security for 3001. and interest, with a power of gale on default in payment on a certain day. By a memorandum of the same date, T. undertook to deposit with S. a lease, when the same was executed, of another plot of land, as a further and collateral security for the 3001. and interest. A mill and other buildings stood partly on one plot of land and partly on the ether. On the 18th of December, 1845, the lease mentioned in the memorandum was granted and deposited with S. By indenture of the 2nd of March, 1847, T. assigned a moiety of the entire premises to A ; and on the 20th of September, 1847, executed an assignment of all his estate and effects for the benefit of his creditors. By indenture of the 31st of August, 1848, S. assigned both plots of land, mill, and buildings to the defendant, subject to the equity of redemption, and with such power of sale as S. poisessed. In April, 1852, the defendant offered the premises for sale by auction; and the conditions stated (inter alia) that he aold as mortgagee; and that, as he had only an equitable interest in the second plot, the purchaser should accept such title as he was able to deduce and convey. The plaintiff became the purchaser of both plots, but refused to complete the purchase, on the ground that the legal estate in the second plot was outstanding, and might be used adversely to him; and having brought an action to recover back the deposit-Held, that there was no failure of consideration, inasmuch as, first, the assignment by T. of the legal estate in the one plot, and memorandum of deposit of future lease of the other plot, weie one and the same transaction and security, and the lease, when deposited, was subject to the same conditions, including the power of sale, as were contained in the assignment, and, consequently, T. would not be entitled in a Court of equity to redeem the second plot: secondly, that, by the express terms of the conditions of sale, the defendant contracted, with reference to that plot, to sell an equitable interest only. [S. C. 2 C. L. R 418, 23 L. J. Ex. 73; 2 W. R 41.] Tim was an action of assumpsit for money had and received by the defendant for tie plaintiffs use, to which [17G] the defendant pleaded non assumpsit, whereupon issue was joined , and the cause was tried before Wightman, J., at the Liverpool Summer Assizes, 1852, when a verdict was found for the plaintiffs for 1001. damages, subject to the opinion of the Court upon the following case .- 76 ASHWORTH V. MOUNSEY 9 EX 177. This action is brought to recover the sum of 521. paid by the plaintiff's to the defendant as deposit money on the purchase of an estate, as upon a failure of consideration, under the following circumstances : On the 13th of April, 1852, the defendant caused certain land, buildings, and hereditaments to be put up for sale by auction, in Roy ton, in the county of Lancaster, upon certain conditions, which (so far as material to the present case) aie as follows - " Conditions for the sale by auction of, "Firsk All that plot of land formerly taken out of and divided from the northeast coinei of a field called the Hare-hill, demised by an indentuie ot lease, dated on 01 about the 13th of May, 1783, hereinafter more particularly mentioned "Secondly. All that plot of land theretofore taken out of and divided fiom the same close of land called Hare-hill, demised by an indenture of lease, dated on or abuut the 18th of December, 1845, hereinafter more paiticularly mentioned. And also that mill or factory, warehouse, cottage, or dwelling-house, buildings and improve ments, now standing and being on the said respective plots of land, or any part thereof, with the steam-engine, boiler, &c., and other fixtures in, about, and belonging to the said mill and premises, and which are comprised and included in certain indentures of mortgage, dated the 24th of April, 1845, from William Taylor, of &c , to James Schofield, of &c., and the other dated the 27th of August, 1845, from the same William Taylor to Henry Milne. "The plot of land, together with the erections thereon, fiistly described, aie held foi the residue of a term of 999 [177] years, under an indenture of lease, bearing date on or about the 13th of May, 1783; and the plot of land, together with the erections thereon, secondly described, are held for the residue of a term of 980 yeats, under an indenture of lease bearing date on or about the 18th of December, 1845 The whole of the before-mentioned premises are offered for sale by Mr. iSamuel Mounsey, of &c , as mortgagee of Mr. William Taylor, subject, as far as regards the plot of land firstly described and the buildings erected thereon, to the payment of the yearly rent of 12s. 6d., and to the performance on the part of the purchaser, his executors, &c , of the covenants, conditions, and agreements contained in the said indenture of lease of the 13th of May, 1783, and subject also, so far as regards the plot of land becondly described and the buildings erected thereon, to the payment of the yearly rent of 41., and to the performance on the part of the purchaser, his executors, &c , of the co\ enatits, conditions, and agreements contained in the said indenture of lease of the 18th of December, 1845." (Then followed the usual stipulations as to the highest bidder being the purchaser, amount of advance on each bidding, &c ) " That the purchaser shall, immediately upon the close of the sale, pay to the vendor or his agent a deposit of 101. per cent, in part of the purchase-money, and shall pay the remainder to the vendor on the 28th of June next, at the hour of eleven o'clock in the forenoon, at the offices of Messrs Holcate & Koberts, Solicitors, Lioch-dale , at which time and place, upon payment of the remainder of the purchase-money, the purchase deeds shall be executed by the proper parties, and the pui chase completed to tlie purchaser, clear of all outgoings, from which 2th of June next the purchaser shall be entitled to the receipt of the rents and profits. " That the vendor shall deliver an abstract of his title, [178] commencing with the before-mentioned indentures of lease of the 13th of May, 17i*3, and the 18th of December, 1845, to the purchaser, on or before the 17th of May next, and the puichaser shall prepare the requisite deed of assignment at his own expense, but he shall not be entitled to call for the production of the title previous to the said indentures of lease...
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