Colyer v Finch
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1855 |
| Date | 03 July 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 445
ROLLS COURT.
S. C. 18 Jur. 935; 2 W. R. 655, in H. L., sub nom. Colyer v. Finch, 5 H. L. C. 905; 10 E. R. 1159; 26 L. J. 65; 3 Jur. (N. S.), 25. See Phillips v. Phillips, 1861, 4 De G. F. & J. 208; 45 E. R. 1164 (with note); Wilkinson v. Castle, 1868, 37 L. J. Ch. 469; Thorpe v. Holdsworth, 1868, L. R. 7 Eq. 146; Hunter v. Walters, 1870, L. R. 11 Eq. 314; Dixon v. Muckleston, 1872, L. R. 8 Ch. 161. Followed, Heath, v. Crealock, 1873, L. R. 18 Eq. 215. See Corser v. Cartwright, 1873-75; L. R 8 Ch. 975; L. R. 7 H. L. 736; Heath v. Pugh, 1881, 6 Q. B. D. 358; In re Hawthorne, 1883, 23 Ch. D. 748; Northern Counties of England Fire Insurance Company v. Whipp, 1884, 26 Ch. D. 491; Manners v. Mew, 1885, 29 Ch. D. 728; Taylor v. Russell, 1890, 59 L. J. Ch. 760.
19BEAV.MO. FINCH V. SHAW 445 [500] finch v. shaw. colyee v. finch. July 14,17, 18, 1854. [S. C. 18 Jur. 935 ; 2 W. R. 655, in H. L., sub nom. Oolyer v. Finch, 5 H. L. C. 905; 10 E. R. 1159 ; 26 L. J. Ch. 65; 3 Jur. (N. S.), 25. See P/wMip v. Phillips, 1861, 4DeG. F. & J. 208; 45 E. R. 1164 (with note); Wilkinson v. Castle, 1868, 37 L. J. Ch. 469; Thorpe v. Holdxworth, 1868, L. R. 7 Eq. 146; Hunter v. Walters, 1870, L. R. 11 Eq. 314; Dixonv. Mucklestm, 1872, L. R. 8 Ch. 161. Followed, Heath v. Orealock, 1873, L. R. 18 Eq. 215. See Gmser v. Cartwright, 1873-75; L. R. 8 Ch. 975 ; L. R. 7 H. L. 736 ; Heath v. Pugh, 1881, 6 Q. B. D. 358; In re Haivthorne, 1883, 23 Ch. D. 748 ; Northern C'mmties of England Fire Insurance Company v. Whipp, 1884, 26 Ch. D. 491 ; Manners v. Mew, 1885, 29 Ch. D. 728 ; Taylor v Russell, 1890, 59 L. J. Ch. 760.] To postpone a first mortgagee on the ground of his leaving the title-deeds in the hands of the mortgagor, there must be a distinct, voluntary and unjustifiable concurrence, oti the part of the mortgagee, in the mortgagor's retaining them. To a bill by an eignd against a puisne mortgagee, a defence by the latter, that he is a purchaser for valuable consideration without notice of the lirst mortgage, is unavailable. Parts of lands charged with debts and legacies were mortgaged by the devisee, who was also one of two executors. He afterwards sold that part, ostensibly to pay the legacies, and he and the co-executor conveyed it to the purchaser. Held, that as between the devisee and mortgagee, the latter had an equity to throw the legacies on the portion not mortgaged, and that, aa between the mortgagee and purchaser, the latter not having obtained the legal estate, was subject to the same equity as his vendor. The Rev. John Brooke, being seised of some property at South Fleet, which was subject to a rent charge of 200 a year, payable thereout to Frances A. Shaw, and to a term of 100 vested in a trustee for securing it, made his will, whereby he charged his real and personal estate with the payment of his debts, funeral expenses, annuities and legacies. He bequeathed three legacies of 2000 each, payable twelve months after the decease of Dame Theodosia M. Shaw, and he devised all his real estates to Sir John K. Shaw, in fee, and appointed Sir John K. Shaw and Robert W. Shaw his executors. [501] The testator died in 1840, and his will was proved by his executors. On the 7th of July 1842 Sir J. K. Shaw mortgaged part of the devised estates, consisting of Hook's Place and Weaver's Farm, to the Plaintiff Finch in fee, to secure 3500. Mr. John Hayward acted as solicitor for both parties, and on the completion of the transaction, Finch, who was a retired tradesman wholly unacquainted with legal matters, received the mortgage deed, and abstract and other documents relating to the title to the mortgaged premises, constituting, as Hayward represented and as Finch believed, a perfect security, but in fact not comprising the whole of the title-deeds. The abstract of title of Sir John K. Shaw, which commenced (as to half the property) with a deed of indemnity of the 20th of October 1750, reciting a deed of even date, by which a moiety of the property had been conveyed to Joseph Brooke ; and (as to the whole property) the title commenced with the will of Joseph Brooke (1789), devising it to the Rev. John K. Brooke, and was followed by the will of the Rev. John K. Brooke (1839), devising it to Sir John K. Shaw. The documents handed over were as follows :-An old lease of 1678, an extract of the will of Joseph Brooke (1789), a copy of the will of Rev. John K. S. Brooke (1839), and a land tax certificate of redemption of the very property by the Rev. John K. Brooke, in 1799. It will be convenient here to state that the mortgage to Finch was concealed by Sir John K. Shaw, and his solicitor Mr. Hayward, throughout the subsequent dealings with the property. In 1845 and 1846 Hayward obtained for Sir John K. Shaw loans from Colyer, amounting in the whole to 11,000 upon a memorandum of deposit of the title-[502]- 446 FINCH V. SHAW 19 BEAV. 503. deeds of the property mortgaged to Finch, which consisted of the deed of October 1750 (referred to in the abstract delivered to Finch, and by which one moiety of the property had been conveyed to Joseph Brooke), and the title-deeds of the property anterior to 1750, shewing the title of Joseph Brooke to the other moiety. Colyer was afterwards paid off, out of money advanced to Sir John Shaw, by Mr. William Webb Hayward; arid by indenture, dated the 20th of May 1848, Sir John Shaw and others conveyed the property in question with others to William Webb Hayward in fee, to secure the monies then advanced, with a power of sale. Colyer delivered the title-deeds in his possession to William Webb Hayward. By the death of Lady Theodosia M. Shaw, the three legacies of 2000 became payable in October 1848. On the 16th of February 1849 William Webb Hayward put up the premises so conveyed to him for sale by auction, the conditions stating that the sale was made to raise the three legacies charged on this and other property by Mr. Brooke's will. Thomas Colyer afterwards became the purchaser of the portion in mortgage to Finch ; and by an indenture, dated the 17th of July 1849, and made between William Webb Hayward of the first part; Sir John K. Shaw and Robert William Shaw (described as the executors of John K. S. Brooke) of the second part; Sir John K. Shaw, in his own right, of the third part; T. C. of the fourth part; and Thomas Colyer and Timothy Tyrrell of the fifth part; the property was conveyed to Thomas Colyer. No mention was made in this indenture of Finch's mortgage, and it did not appear that Thomas Colyer had any actual notice of it. He obtained possession of those title-deeds which were not in the possession of Finch. [503] On the completion of the purchase, Colyer entered into possession, and the interest on Finch's mortgage having fallen into arrear, he, in June 1852, filed his bill against Colyer and Sir John K. Shaw, to foreclose them both. Colyer insisted he was the only person interested in the property-that the three legacies having been charged on the real estate, and the sale having been made for raising them, and the money produced having been so applied, his title had priority over Finch's mort- g ige, effected by Sir John K. Shaw, in his own right, and for his own purposes, olyer also insisted that he had no notice of Finch's mortgage, and had obtained the title-deeds, while Finch neglected to do so, and to make proper inquiry after them, and had thus enabled Sir John K. Shaw to deal with the property as if no incumbrance existed. He insisted that Finch was, or but for his wilful negligence might have been, aware of the subsequent dealings with the estate and the deeds, and that he...
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