Baker v Wind
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1748 |
| Date | 19 November 1748 |
| Court | High Court of Chancery |
English Reports Citation: 27 E.R. 956
HIGH COURT OF CHANCERY
baker v. wind, November 19,1748. Mortgage-redemption resisted, and mortgagee ordered to pay costs. (S. P. Smith v. Smith, Cooper, Oh. Rep. 141, and see Supplement, p. 88. Et vide Detillin v. Gale, 7 Yes. 583.) The father of the plaintiff mortgaged an estate to the defendant; and by articles they agreed, that upon being reimbursed what he advanced, and 50 over, for such improvements as he might possibly make, he should reconvey: but this clause was not inserted in the deed of conveyance, the mortgagor, upon account of his creditors, being willing it should appear as a purchase ; but by subsequent facts and agreements it appeared in proof, that the defendant admitted it to be a redeemable estate ; and it had been referred to arbitrators; who, though they did not choose to make an award, yet were of opinion that he should take the money, and give up the estate. The mortgagor's son, within a year after he came of age, but twelve years after the transaction, brought this bill to redeem. For defendant it was insisted, that he should neither be redeemed, nor come to an account after so long a time. Citing Cottrel v. Purchase, Tal. Gas. 61. [161] Lord Chancellor. This is the strongest case that ever came before me, for the decreeing a redemption, where that redemption was controverted : and also to make the mortgagee, who opposed it, not only lose, but pay costs : there being such a series of transactions in which it was constantly admitted to be redeemable, as it clearly was. The not inserting the clause in the deed was an imposition upon the mortgagor ; but the reason was, that he was in distress, and therefore turned it into the shape of a purchase ; but still he meant it as a security. The value of the estate does not appear; but if he, as a friend to the mortgagor, thought fit to take it as security, he did it with his eyes open; and the redemption cannot be prevented : and wherever the court finds such a clause as this, it adheres to it strictly, to prevent the equity of redemption from being intangled to the prejudice of the mortgagor. And the getting a further sum of 50, inserted upon a mere pretence, for whether he improved or not...
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