Beavan v The Earl of Oxford

JurisdictionEngland & Wales
Judgment Date29 January 1856
Date29 January 1856
CourtHigh Court of Chancery

English Reports Citation: 43 E.R. 1325

BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND THE LORDS JUSTICES.

Beavan
and
The Earl of Oxford

S. C. 25 L. J. Ch. 299; 2 Jur. N. S. 121. See Pickering v. Ilfracombe Railway Company, 1868, L. R. 3 C. P. 248; Punchard v. Tomkins, 1882, 31 W. R. 287; In re Lord Kensington, 1885, 29 Ch. D. 527.

[492] beavan v. the eael of oxford. Before the Lord Chancellor Lord Cranworth and the Lords Justices. Nov. 14, 23, 1855. [S. C. 25 L. J. Ch. 299; 2 Jur. N. S. 121. See Pickering v. ll.fmcttmbe tiailwai/ Company, 1868, L. R. 3 C. P. 248; Piinchanl v. Tmnkins, 1882, 31 W. R. 287; In re Lard Kensington, 1885, 29 Ch. D. 527.] A., B. and C. were judgment creditors of D., A. and B. having priority to C. : A. and B. subsequently omitted to register their judgments within five years from their previous registration : C. duly registered within the five years. Held, that A. and B. did not thereby lose their priority to C. The effect of the provisions of the 4th section of the Act 2 & 3 Viet. c. 11 is to deprive the judgment creditor who omits to re-register within five years of protection against subsequent purchasers mortgagees and creditors but not to alter his position as to previous purchasers mortgagees and creditors. The circumstance that a re-registration is not within five years from the previous registration does not make it ineffectual as against subsequent purchasers mortgagees and creditors. The decision in Shaw v. Neale, 20 Beav. 157, as to the effect of omitting to re-register within five years, observed upon and in substance overruled. The question in this case related to the order of priority of three judgment creditors of the late Earl of Oxford named respectively David Taylor Thomas Brockell and George Keates Corfield, and arose by way of appeal from a certificate made in Chambers on a reference directed in the suit, which had been instituted to settle the rights of the creditors of the Earl of Oxford. D. Taylor's judgment bore date the 29th December 1836, before the passing of the Act 1 & 2 Viet. c. 110, and was duly docketed: it was registered on the 27th January 1849, and re-registered (within five years) on the 26th January 1854. T. Brockell's judgment bore date the 23d June 1841: it was registered on the 19th August 1841, re-registered on the 27th February 1847, and again (after five years) on the 20th April 1852. G. K. Corfield's judgment bore date the 4th September 1848 : it was registered on the 5th September 1848, and re-registered (after five years) on the 28th November 1854. [493] Under these circumstances T. Brockell and G. K. Corfield had in the year 1849 priority over D. Taylor, and the question was whether they lost that priority by not having re-registered within five years. The chief clerk decided that they 1326 BEAVAN V. THE EARL OF OXFORD 6 DE G. M. & G. 494. had not lost their priority and certified the priorities accordingly, and the question now came at once before the full Court of Appeal on an appeal from the certificate brought by D. Taylor. It should here be mentioned that the bill in the suit was filed on the 20th August 1849, D. Taylor being made a Defendant and the bill containing statements as to the judgments of Brockell and Corfield ; the decree in the suit was made on the 9th June 1854. The question now brought before the Court turned mainly on the construction of the 19th section of the Act 1 and 2 Viet. c. 110, and the 4th section of the Act '2 and 3 Viet. c. 11. The 19th section of the Act 1 and 2 Viet. c. 110, is as follows:-"Provided always, and be it further enacted, That no judgment of any of the said Superior Courts, nor any decree or order in any Court of Equity, nor any rule of a Court of Common Law nor any order in bankruptcy or lunacy shall by virtue of this Act affect any lands tenements or hereditaments as to purchasers mortgagees or creditors unless and until a memorandum or minute containing the name and the usual or last-known place of abode and the title trade or profession of the person whose estate is intended to be affected thereby, and the Court and the title of the cause or matter in which such judgment decree order or rule shall have been obtained or made and the date of such judgment decree order or rule and the account of the debt damages costs or monies thereby recovered or ordered to [494] be paid shall be left with the Senior Master of the Court of Common Pleas at Westminster who shall forthwith enter the same particulars in a book in alphabetical order by the name of the person whose estate is intended to be affected by such judgment decree order or rule; and such officer shall be entitled for any such entry to the sum of five shillings; and all persons shall be at liberty to search the same book on payment of the sum of one shilling." The 4th section of the Act 2 & 3 Viet. c. 11 is as follows :-" And be it enacted, That all judgments of any of the Superior Courts, decrees or orders in any Court of Equity, rules of a Court of Common Law, and orders in bankruptcy or lunacy, which since the passing of the said recited Act of the first and second years of the reign of Her present Majesty have been registered under the provisions therein contained or which shall hereafter be so registered, shall after the expiration of five years from the date of the entry thereof, be null and void against lands tenements and other hereditaments as to purchasers mortgagees or creditors unless a like memorandum or minute as was required in the first instance is again left with the Senior Master of the said Court of Common Pleas within five years before the execution of the conveyance settlement mortgage lease or other deed or instrument vesting or transferring the legal or equitable right title estate or interest in or to any such purchaser or mortgagee for valuable consideration, or as to creditors, within five years before the right of such creditors accrued, and so, totiex quoties, at the expiration of every succeeding five years, and the Senior Master shall forthwith re-enter the same in like manner as the same was originally entered; and such officer shall be entitled for any such re-entry to the sum of one shilling." B :95] Mr. Eddis, for D. Taylor, supported the appeal, e submitted that Brockell's judgment by reason of not being re-registered within the five years was to be treated as bearing the date of the re-registration namely the 20th April 1852, and that in like manner Corfield's judgment must be treated as being dated the 28th November 1854, and that thus Taylor's judgment would have a priority over both. He referred to the sections of the two Acts before mentioned, and also to the 13th section of the 1 & 2 Viet. c. 110, the 2d section of 3 & 4 Viet. c. 82, and the 4th, 5th, 6th and 8th sections of the 18 Viet. c. 15, and supported the construction of them which would give priority to Mr. Taylor by reference to the following cases, namely, Shaw v. Neale (19 Jur. 666 ; since reported 20 Beav. 157), Beere v. Head (3 Jones & Lat. 340), Freer v. Hesse (4 De d Mac. & G-. 495), and also to Lord St. Leonards' Concise View of the Law of Vendor and Purchaser, p. 389. He submitted that any notice which D. Taylor obtained of the other judgments by means of the bill was immaterial, if the provisions of the Acts as to registration had not been complied with. Mr. Walker for G. K. Corfield supported the decision of the chief clerk. 6DB0.tt.feQ.4M. BEAVAN V. THE EARL OF OXFOED 1327 The question turns, upon the 4th section of the Act 2 & 3 Viet. c. 11, and it is submitted that neither the words of the section, nor the object of the statute, nor the reason of the thing warrant such a construction as would give to the Appellant the priority which he claims. The re-registration of Taylor's judgment was idle so far as CorfieH waa concerned, it was useful only as against [496] subsequent purchasers. In order to bring the section in question into operation, there must be purchasers mortgagees or creditors who being duly registered themselves can assert that at the date of their purchases mortgages or debts they found no judgment registered within five years, and the section settles their priority with regard to competing creditors of the class mentioned in the section who have neglected to register. The object of the Act was to reduce the time within which purchasers mortgagees and creditors were to search. In the present case when Mr. Corfield registered, the register was vacant, and the question of priority as between him and Taylor must be referred to the time when Taylor originally registered. The Act was clearly meant to apply to persons becoming purchasers mortgagees and creditors after the expiration of the five years, not to persons who became such within that period. The analogous provisions in the Irish Act 9 Geo. 4, c. 35, have received the interpretation now contended for, Hickson v. Collia (1 Jones & Lat. 94 and S. C. on rehearing 10 Ir. Eq. Rep. 447). The case of Freer v. Hesse (4 De. G. Mac. & G. 495), does not apply, and the decision in Shaw v. Neale (19 Jur. 666; since reported 20 Beav. 157) supports the view now submitted. As to notice, the Act 3 & 4 Viet. c. 82 does not apply to the present case ; it has no reference to the re-registration of judgments under the Act 2 & 3 Viet. c. 11. The old rule of the Court must therefore prevail, and under this Taylor being clearly affected with notice must be postponed to Corfield. The only remaining question is as to the 6th section of the Act 18 & 19 Viet. c. 15. It is however submitted that that section really makes no difference; it was passed simply for the purpose of removing a doubt whether a person who had permitted the five years to elapse could avail himself of the provi-[497]-sions of the Act 2 & 3 Viet. c. 11 as against subsequent mortgagees arid purchasers. The 4th and 5th sections of the Act 18 & 19 Viet. c. 15 do not aft'ect Mr. Corfield inasmuch as they are...

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