Cowdry v Day
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1859 |
| Date | 26 November 1859 |
| Court | High Court of Chancery |
English Reports Citation: 65 E.R. 936
HIGH COURT OF CHANCERY
S. C. 29 L. J. Ch. 39; 5 Jur. (N. S.) 1199; 1 L. T. 88; 8 W. R. 55.
936 COWDRY V. DAY 1GIFF.316. [316] cowdry v. day. Nov. 24, 26, 1859. [S. C. 29 L. J. Ch. 39 ; 5 Jur. (N. S.) 1199^ 1 L. T. 88 ; .8 W. K. 55.] When a solicitor takes a security from his client the Court will not give effect to any stipulation if unusual and disadvantageous to the client, such as postponing1 the right to redeem or pay off the debt for twenty years. This bill was filed by William George Cowdry, praying for the ordinary decree to redeem the mortgaged premises, or, in the alternative, that if the Court should be of opinion that the Plaintiff was not entitled to immediate redemption of the mortgaged premises, then that the mortgaged securities might be reformed by striking out or duly modifying or qualifying the said restrictions against redemption in such a manner as to the Court would seem meet, or that the Plaintiff might be admitted to redeem in such terms as to his Lordship should seem meet, the Plaintiff hereby offering and undertaking to redeem the said mortgaged premises. From the year 1839 to September 1858 Joseph Addison Day acted as the Plaintiff's steward, agent and solicitor, and as such received the rents of the Plaintiff's estates. The Plaintiff was possessed of an undivided moiety in [317] an estate called Lower Hincknol farm, let to a Mr. Hine at a yearly rent of £400, and of two other properties called North Cholningham, let at £375 per annum, and a small estate let at £30 a year. In the month of August 1846 the Plaintiff, being desirous to obtain a loan, on the 25th wrote to the Defendant as follows : - " I shall want the £500 or £1000 as a permanent loan for some years perhaps, and as soon as you can effect the mortgage the better." In a letter, dated the 3d of September, the Plaintiff wrote to the Defendant thus : "I have been thinking of your suggestion about having the mortgage on Lower Hincknol, and I approve of it, as I see no one but ourselves and the mortgagee need know anything about it. My only reason for not, wishing it to be on Hincknol was a kind of feeling I cannot express, but I give up all these ideas, as I want the cash ; so now you know what to be at. Make the mortgage on Hincknol a permanent one for years, what time you would think most advantageous to me, not minding your other client, but I must say with such a security £4 per cent, ample. Mind when you come up not to drop a word to Tom or anyone about the mortgage, for I do not wish anyone to know it but ourselves." On the 18th of September the Plaintiff gave the Defendant the following authority : - " I hereby order and authorise you to procure for me, on security of my share in my property called Hineknol, the sum of £500, at the rate of 4J per cent., payable half-yearly, for the term of ten years certain on punctual payment of the interest half-yearly. As witness my hand this 18th day of September 1846. " william george cowdry." On the 20th of October the Defendant advanced to the Plaintiff £800 on the security of a mortgage of the [318] undivided moiety of the Lower Hincknol farm, to secure that sum and future advances to the extent of £200 ; and it was thereby witnessed that, in pursuance of the said agreement and in consideration of the sum of £800 advanced to the Plaintiff by the Defendant, the Plaintiff assigned the said moiety of Hincknol to the Defendant, &c., for 2000 years, from the date of the said indenture, without impeachment of waste, subject to a proviso for redemption by the Plaintiff, his heirs, executors, administrators or assigns, on payment of the sum of £800, on the 20th of October, which would be in the year 1856, and in the meantime interest at 4J per cent. It was by the same deed declared that in case default should be made in payment of the said sum of £800 and such other sums, and the interest thereof, at the time and in the manner mentioned, and the Defendant should give to the Plaintiff, his 1GIFF.319, GOWDBY Vt DAY 937 heirs, executors, administrators or assignSj twelve calendar months' notice in writing of his...
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