Bosvil v Brander
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 470
AT THE ROLLS
See like v. Beresford, 1797, 3 Ves. Jun. 511.
Case 131.-bosvil versus brander. [1718.] [See Like v. Beresford, 1797, 3 Ves. Jun. 511.] At the Rolls. A feme sole mortgagee in fee marries, and the husband becomes bankrupt and dies, the assignees of the bankrupt, and not the wife, intitled to the mortgage (see Doe v. Parratt, 5 T. R 652); secus if by articles before marriage it was agreed that this should continue to the wife. A feme sole is a mortgagee in fee for 800, and marries a tradesman, who becoming a bankrupt, a commission of bankruptcy is taken out against him, and the commissioners assign over all his estate real and personal. Afterwards the husband dies, and the writings relating to this mortgage being in the assignees' hands, the widow of the bankrupt brings a bill in equity against the assignees for these writings, and to have the benefit of the mortgage.(l) [459] This cause came on to be heard, and for its difficulty was ordered to be spoke to again, when his Honour delivered his opinion solemnly for the plaintiff the wife. But afterwards being dissatisfied with that opinion, he ordered the decree to be stayed, and to be attended again by counsel. Whereupon his Honour gave his opinion, that if there had been any articles before the marriage, purporting that this mortgage money should continue in the wife as her provision, or should be assigned in trust for her, they would have been a specific lien upon the mortgage, and have preserved it from the bankruptcy. '" i Also it might have been a matter of different consideration, if the assignees had been plaintiffs in equity, and desired the aid thereof to strip an unfortunate widow of all that she had in the world, towards the doing of which, equity would hardly have lent any assistance; because the assignees claiming under the bankrupt husband, could be in no better plight than the husband would have been (ante, 383 ; Jacobson v. Williams); and if the husband had in equity sued for the money, or else prayed that the mortgagor might be foreclosed, equity (probably) would not have compelled the mortgagor to pay the money to the husband, without his making some provision for his wife; or at least the wife, by an application to the court against the husband and the mortgagor, might have prevented the payment of the money to the husband, unless some provision were made for her. [460] But in the present case, the widow was plaintiff against the assignees, so that she, and not the creditors sought the aid of equity. And here being in the mortgage deed a covenant to pay the mortgage money to the wife, this debt, or chose in action was well assigned by the commissioners to the assignees, and vested in them; like the case of Miles v. Williams (ante, 249), where a bond made to a wife, dum sola, was adjudged to be liable to the husband's bankruptcy, and assignable by the commissioners. 1 P. WMS. 461. BOSVIL V. BRANDER 471 Wherefore, if the right to the debt was vested in the assignees (as plainly it was), though the legal estate of the inheritance of the lands in mortgage continued in the wife, yet this was not material, it being no more than a trust for the assignees; like the common case, where there is a mortgage in fee, and the mortgagee dies, here the mortgage money belonging to the executor, though the heir takes the legal estate by descent, yet he is but a trustee for the executor; for the trust of the mortgage must follow the property of the debt, else the mortgagor would be in a very hard case, liable to be sued by the assignees of the commissioners upon the covenant, and also in an ejectment...
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Richbell and Wife v Alexander
...therein as he could himself have assigned or released,"-citing Miles v. Williams, I P. Wins. 249, 10 Mod. 160, 243, Bosvil v. Brander, 1 P. Wms. 458, Hii/den v. Williamson, 3 f. Wins. 131, Gray v. Kentish, 1 Atk. 230, Robinson v. Taylor, 3 Bro. C. C. 589, and I'ringle v. Hodijson, 3 Ves. 61......
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Lockwood and Another against Thomas Salter and Sarah his Wife
...the husband's bankruptcy would make no difference, for the separate estate could not be reached by the assignees, Bosvil v. Brander (1 P. Wms. 458). [Littledale J. The question, as to the discharge of the wife on the ground that she has no separate property, is matter of equity : the applic......
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Re Thomas Green Carson Robert Haldane Carson and Frank Nugent Greer v Janie Knox Carson, Robert Selwood Carson and Ian A.K Burnett
... ... Irving v. Houstoun (1) was a case of the Bank of Scotland; Brander v. Brander (2) was a case of the Bank of England; and Ex parte Hodgens, In re Hodgens (3) was a case of the Bank of Ireland. None of these ... ...
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Franco v Franco
...appears to have been Lord Thurlow's opinion in Worrall v. Marlar, and Bushnan v. Pell, stated in Mr. Cox's note to Bosville v. Brander, 1 P. Wms. 458. In Like v. Beresford, the only case contradicting that, it is to be observed, the husband had ran away with a ward of the Court; and it was ......