Bell v Carter
| Jurisdiction | England & Wales |
| Judgment Date | 14 April 1853 |
| Date | 14 April 1853 |
| Court | High Court of Chancery |
English Reports Citation: 51 E.R. 935
ROLLS COURT
S. C. 22 L. J. Ch. 933; 17 Jur. 478; 1 W. R. 270.
[11] bell v. carter. March 19, April 12, 14, 1853. [S. C. 22 L. J. Ch. 933; 17 Jur. 478; 1 W. R. 270.] A. conveyed lands to B. on trust, in case a sum and interest should not be paid by a clay named, to sell, arid after payment of principal, interest, and costs, to reconvey the lands remaining unsold, or pay over the residue of the money ; and B. covenanted not to sell without giving six months' notice, but the deed contained no proviso for redemption. Held, that this was a mere mortgage, and that A. was therefore entitled to six months' time to redeem. In May 1827 Tilson conveyed certain lands to the Plaintiff Bell and his heirs, on trust, in case a debt of 6000 and interest thereon should not be paid on the 12th of May 1828, to sell the same by public auction [12] or private sale, and out of the proceeds of the sale to pay the principal, interest, and costs, and pay over the surplus, and to reconvey the unsold part of the estate to Tilson. The deed contained a covenant by the Plaintiff not to sell without giving six months' notice, and a covenant by Tilson to pay the debt and interest; but there was no proviso for redemption, as in a common mortgage. The money was not paid; and in 1846 an ineffectual attempt was made to sell the property. Bell alleging the property to be an insufficient security, afterwards filed his bill against the parties claiming under Tilson, who was dead, for a sale of the property, and for payment, out of the produce of the principal, interest, and costs. Mr. R. Palmer and Mr. J. V. Prior, for the Plaintiffs, asked for an account and an immediate sale of the property, without allowing any period for redemption. They contended that the deed was substantially a conveyance in trust for sale, and which trust the Plaintiffs had a right to have executed. Mr. Kinglake, contra. The Plaintiffs are merely entitled to the ordinary decree for redemption and not to a sale. The transaction, though peculiar in form, is a mere Welch mortgage with a superadded power of sale, for the estate is conveyed to the Plaintiff in fee, in trust, if default be made, out of the rents and profits or by a sale, to pay the debt, &c. The Plaintiff is therefore entitled to retain the estate until the debt was paid. The trust for sale is not compulsory, but to be exercised by Bell, at his option, upon giving six calendar months' notice; and no...
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Robert George Barnhart, - Appellant; James Blackwood Greenshields, William Henry Patterson, Lewis Moffatt, and Robert Beekman, - Respondents
...Colonial Estates, c. Canada; tit. Notice, 4. By Tenancy, When Purchaser bound. On point as to form of mortgage, see Bell v. Carter, 1853, 17 Beav. 11; Douglas v. Culverwell, 1862, 4 De G.F. and J. 20. On point as to sufficiency of notice, followed in Hunt v. Luck (1901), 1 Ch. 45, and see N......