Bolding v Lane
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1863 |
| Date | 21 January 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 47
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 3 Giff. 561; 6 L. T. 276; 8 Jur. (N. S.), 407; 10 W. R. 556; 32 L. J. Ch. 219; 7 L. T. 812; 9 Jur. (N. S.), 506. See Lewin v. Wilson, 1886, 11 App. Cas. 645.
[122] bolding v. lane. Before the Lord Chancellor Lord Westbury. Jan. 14, 21, 1863. [S. C. 3 Giff. 561; 6 L. T. 276; 8 Jur. (N. S.), 407; 10 W. R. 556; 32 L. J. Ch. 219; 7 L. T. 812; 9 Jur. (N. S.), 506. See Lewin v. Wilson, 1886, 11 App. Gas. 645.] An acknowledgment by a mortgagor of more than six years' arrears of interest being due upon a first mortgage does not preclude a puisne mortgagee from relying on the Statute of Limitations. Therefore where the mortgagor was, but a second mortgagee was not, a party to a transfer of a first mortgage, the interest on which was, and was in the transfer recited to be, upwards of six years in arrear: Held, that notwithstanding this recital, the second mortgagee was entitled to redeem the first mortgagee on payment of principal and six years' arrears only of interest. This was an appeal from a decision of the Vice-Chancellor Stuart holding in a foreclosure suit, instituted by a first mortgagee against puisne incumbrancers and the 48 BOLDING V. LANE 1DE O. J. & B. US. heir of the mortgagor, that the puisne ineumbrancers could not effectually set up the Statute of Limitations, and could only redeem on paying the whole arrears of interest exceeding six years' arrears. The first mortgage was dated the 9th of May 1834, and thereby Joseph Lane, the owner in fee, demised to Thomas Lane and Walter Sprott, who were the trustees of the settlement made on the marriage of Edmund and Ann Bennett, two pieces of land at Stowheath, in the parish of Wolverhampton, for 1000 years without impeachment of waste, subject to a proviso for cesser of the term on payment by Joseph Lane to Thomas Lane and Walter Sprott of a sum of 1281, 12s. 3d. and interest. Joseph Lane died on the 25th of August 1831, having by his will devised to Thomas Lane, who was his nephew and heir at law, his freehold land and hereditaments at Stowheath. By indentures dated respectively the 23d of February 1846, Sydney Alleyne was appointed a trustee of the 1281, 12s. 3d. jointly with Thomas Lane, in the place of Walter Sprott, who had died on the 3d of May 1844, and the mortgaged premises were assigned to and became vested in Thomas Lane and Sydney Alleyne, subject to redemption by Thomas Lane. [123] In September 1847 part of the mortgaged land was sold, and 250, the price of the part sold, paid to Thomas Lane and Sydney Alleyne in part discharge of the mortgage debt of 1281, 12s. 3d. The second mortgage on the property was effected by an indenture dated the 1st of May 1848, and made between Thomas Lane (in his character of owner of the reversion in fee of the mortgaged premises expectant on the mortgage term of 1000 years) of the first part, Maria Lane of the second part, John Elworthy Cutcliffe and Elizabeth his wife of the third part, Anthony Boulton and Harriet his wife of the fourth part, and Anthony Boulton and John Elworthy Cutcliffe of the fifth part, and thereby Thomas Lane conveyed to Anthony Boulton and John Elworthy Cutcliffe in fee so much of the premises comprised in the mortgage of 1831 as were not sold in 1847, upon trust to sell the same and out of the proceeds and mesne rents and profits to reimburse themselves the expenses attending the execution of the trusts and then to pay interest on a sum of 827, 8s. lid. due to Maria Lane, and interest on a sum of 718, 7s. 9d. due to the trustees of a settlement made on the marriage of Elizabeth Cutcliffe with a former husband named William Dick, and after payment of such interest to pay to Maria Lane or her assigns, and to the trustees for the time being of the marriage settlement of Elizabeth Cutcliffe and William Dick respectively, the above sums of 827, 8s. lid. and 718, 7s. 9d. without preference; and upon further trust to pay to Anthony Boulton the sum of 461 ; and to pay out of the surplus (if any) to Maria Lane and Anthony Boulton and their respective assigns, the sums of 2200 and 1500 without preference; and to pay the ultimate residue to Thomas Lane. In 1852 a further part of the mortgaged premises was [124] sold, and Anthony Boulton and John Elworthy Cutcliffe concurred with Thomas Lane and Sydney Alleyne in the conveyance to the purchasers, but the purchase-money, 627, 5s. 3d., was paid to Thomas Lane and Sydney Alleyne in further reduction of their mortgage debt. By an indenture dated the llth of November 1856, on which the question turned, and which was made between Thomas Lane of the first part, Thomas Lane and Sydney Alleyne of the second part and the Plaintiff of the third part, after reciting that there remained due on account of the principal money secured by the indenture of the 9th of May 1831, the sum of 404, 7s., and that there was also due on such security the sum of 302, 15s. lOd. for arrears of interest, as Thomas Lane thereby admitted, it was witnessed that in consideration of 555, 14s. lid. by the Plaintiff paid to Thomas Lane and Sydney Alleyne, Thomas Lane and Sydney Alleyne assigned to the Plaintiff the principal sum of 404, 7s. secured by the indenture of the 9th of May 1831, and all interest then due or to become due thereon, and the full benefit of all securities for the same moneys and every part thereof and the two pieces of land at Stowheath (except such portions as had been old) for the remainder of the 1000 years' term, subject to the then subsisting equity of redemption under the indenture of the 9th of May 1831. Thomas Lane died in December 1859, intestate. Anthony Boulton died in May 1854, and Samuel John Maclurcan was the acting executor of his will. 1DEQ.J. SB.126. BOLDING V. LANE 49 The persons now entitled to the 718, 7s. 9d. were James Edward Jackson Riccard (the sole surviving trustee of the marriage settlement of Elizabeth Cutcliff'c [125] and William Dick) and Anna Dick, the only child of that marriage, who was the only person: besides her mother beneficially interested under that settlement. No sale was ever made under the trusts of the indenture of the 1st of May 1848, and the moneys secured by it remained unpaid. There was owing to the Plaintiff alao the whole of the principal sum assigned to him by the indenture of the llth of November 1856, and a large arrear of interest. On the 24th of July 1861 he filed the bill in the present suit, praying for the usual foreclosure decree. In answer thereto, the Defendants John Elworthy Cutcliffe and his wife submitted, that the sum of 302, 15s. 10d., arrears of interest, expressed to be assigned by the indenture of the llth of November 1856, could not be turned into principal so as to carry interest, and that no more than six years' arrears of interest could be recovered by the Plaintiff against the estate. The Defendants Maria Lane and Samuel John Maclurcan also by their answer submitted, whether in taking the account of what was due to the Plaintiff, he would be entitled to arrears of interest for more than six years as against those Defendants or either of them. The Defendants claimed the benefit of the Statute of Limitations as fully as if they had pleaded it. The cause came on for hearing on motion for decree, as reported in Mr. Giffard's Reports (vol. 3, p. 561), and by the decree under appeal it was declared that the Plaintiff was entitled to the 302, 15s. 10d., being the arrears of interest due on the llth of November 1856, and to all subsequent interest which had accrued due on the principal [126] sum of 407, 7s., secured by the indenture of the 9th of May 1831, and transferred to the Plaintiff by the indenture of the llth of November 1856, and also to the principal money due under the same indenture; and the decree proceeded to grant relief on the footing of the declaration. The Defendants Maria Lane, J. E. J. Riccarcl, Elizabeth Cutcliffe and Anna Dick appealed from, so much of this decree as declared the Plaintiff entitled to the 302, 15s. lOd. arrears of interest due on the llth of November 1856, and to all subsequent interest, and prayed a declaration that he was entitled as against them to six years' arrears of interest only up to the time of the institution of this suit, and consequential relief. Mr. Bacon and Mr. W. W. Karslake, for the Appellants. Inasmuch as the puisne incumbrancers were no parties to the deed of the llth of November 1856, the recital therein contained of arrears of interest being due could not bind them. The recital, although an acknowledgment by a person liable to pay (1) the interest, still was [127] not an acknowledgment by all the persons liable to pay, or entitled to pay, the interest, and consequently did not take the case out of the statute. [128] [the lord chancellor referred to Hopkinson v. Bolt (9 H. of L. Cas. 514).] The principle of that case is that the first mortgagee and the mortgagor shall not affect the right of a second mortgagee. The arrears of interest, ultra the six years in this case, are in the same position as the further advances made by the first mortgagee in that after notice of the second mortgage. It was his own fault that he permitted the interest to fall into arrear. It was suggested below that the second mortgagee could not complain of the whole arrears of interest on the first mortgage being charged against him, because the statute informed him that an acknowledgment made behind his back by the mortgagor would let in all the arrears. This however was the same argument as that unsuccessfully urged in Hopkinson v. Bolt. In that case, when the second mortgagee advanced his money, he had notice that the first mortgage was given to secure future advances as well as the gross sum then due. But it was held that the facts of a second mortgage being made and notice thereof being given to the first mortgagee put a stop to the further advances. That...
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