Bolton v Buckenham
| Jurisdiction | England & Wales |
| Date | 1891 |
| Year | 1891 |
| Court | Court of Appeal |
Principal and Surety - Giving of Time - Covenant to pay Mortgage Debt - Covenant in Consolidated Mortgage to pay at later Date - Assignment of Benefit of Covenants in original Mortgage Deed.
By a covenant in a mortgage deed, dated September 4, 1857, the mortgagor covenanted and the defendant covenanted as his surety for the payment of the mortgage debt of 450l. to the mortgagee on March 4, 1858. By a deed, dated December 15, 1884, the above-mentioned mortgage and various other mortgages, including other property, given by the mortgagor were consolidated, the plaintiff advancing the total sum of 3200l. for payment to the various mortgagees of the amounts of their respective debts, and taking assignments of such debts and the mortgaged properties, “with the full benefit of the covenants” contained in the respective mortgage deeds; and the mortgagor covenanted with the plaintiff for the payment of 3200l. on January 19, 1885. The defendant was not a party to such last-mentioned deed:—
Held, that the covenant in that deed necessarily implied that the principal debtor could not be sued for the 450l. due under the covenant in the deed of 1857 before January 19, 1885, and, consequently, there had been a giving of time to the principal debtor by which the defendant as surety was discharged from liability.
APPEAL from the judgment of Day, J., at the trial without a jury.
The action was upon a covenant to pay the sum of 450l., and the defence was that the defendant had covenanted as surety for one John Clarke Buckenham, and that her liability on the covenant had been discharged by time having been given to the principal debtor.
The facts, so far as material, were in substance as follows:— By a mortgage deed, dated September 4, 1857, John Clarke Buckenham and the other parties, of whom the defendant was one, having interests in certain hereditaments, mortgaged such hereditaments to one Cooper, to secure repayment of an advance of 450l. made by Cooper to John Clarke Buckenham, with interest at 5 per cent. per annum. The deed contained a joint and several covenant by John Clarke Buckenham and the other mortgagors for the payment of the mortgage debt of 450l. on March 4 then next ensuing, with interest at the rate of 5l. per cent. per annum. This was the covenant upon which the action was brought. There was also the usual covenant for further assurance. John Clarke Buckenham having effected other mortgages of his interest in the hereditaments before...
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