Barnes v Racster
| Jurisdiction | England & Wales |
| Judgment Date | 22 April 1842 |
| Date | 22 April 1842 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 944
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 228; 6 Jur. 595. See Bugden v. Bignold, 1843, 2 Y. & C. C. C. 381 (n.). Followed, Wellesley v. Mornington, 1869, 17 W. R. 355. Considered, In re Mower's Trusts, 1869, L. R. 8 Eq. 110. Followed, Trumper v. Trumper, 1872-73, L. R. 14 Eq. 296; L. R. 8 Ch. 870; Flint v. Howard [1893], 2 Ch. 54.
[401] baenes v. eacstee. March 19, 23, April 22, 1842. , [S. C. 11 L. J. Ch. 228; 6 Jur. 595. . See Bugden v. Bignold, 1843, 2 Y. & C. C. C. 381 (n.). Followed, Wellesky v. Marnington, 1869, 17 W. E. 355. Considered, In re Mower's Trusts, 1869, L. E. 8 Eq. 11Q. Followed, Trumper v.Tnmper, 1872-73, L. E. 14 Eq. 296; L. E. 8 Ch. 870; Flint v. Howard [1893], 2 Ch. 54.] The- costs of several mortgagees held to be payable according to their priorities, although the estates were by order of the Court sold, and the purchase-money was paid into Court, and formed one general fund. A. having two, estates mortgages both to B., then one to C., then both again to B., to secure both the original and a further advance, thn both to D. The puisng incumbrancers have notice of the prior charges. The estates are not sufficient to pay all the mortgages, but one of the estates called No. 32 is sufficient to pay B. in full. The Court will not, as between C. and D., marshal the securities by directing B. to take his full payment out of No. 32, so as to leave C. the first ineumbraneer on the other estate, but B.'s debt must be thrown ratably on both estates. , The original bill prayed a foreclosure of the estates mentioned in the pleadings. By a decretal order, dated the 26th July 1833, and made by the Master of the Bolls on further directions in the original and revived suits, it was ordered that the mort gaged estates should be sold, and the purchase-monies paid into Court: the sale to be free from the mortgage incumbrances, and the several mortgagees to have the same lien on the purchase-monies that they had on the estates, according to their priorities. And it was referred back to the Master to carry on the accounts, as directed by the decree in the cause, of what was due to the several mortgagees for principal and interest in respect of their securities, and to tax them their costs of these suits. And, after a direction for,an account of rents and profits against the mortgagees in possession, further directions and costs were reserved. . . .; By a subsequent order, dated in December 1838, it wa^ ordered that the Master, in proceeding to execute the former order, should have regard to the priorities of the several incumbrances; which priorities, by a report dated in July 1832, had been found to be according to their dates. ........ By a report, made in pursuance of the last-mentioned order, the Master, after stating the sale of the estates and payment of the money into Court, and the several sums [402] due for principal and interest in respect of the several incumbrances, proceeded to tax all parties their costs, and he ascertained the proportions of the fund in Court which represented the estates comprised in each of the respective securities mentioned in the pleadings. The cause now came on, for further directions, with a view to a division of the fund in Court amongst the mortgagees. ; The fund, however, being inadequate to pay all parties their principal, interest and costs, two material points became the subject of discussion. The first question was whether the incumbraneers were entitled to payment of their costs out of the fund before any division should take place, or whether the usual rule should be applied, viz., that each mcumbraHcer should add his costs to the principal and interest found due to him, and take the whole out of that part of the fund which represented the property included in his mortgage, according to his priority. . Mr. Swanston and Mr. Easch, for certain puisne incumbrancers, contended that all the incumbraneers should be paid their costs out of the fund in the first instance, urging that the order of July 1833 must have been made:by consent, and that the arrangement had been entered into upon the...
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