Davis v Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 05 May 1830 |
| Date | 05 May 1830 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 195
HIGH COURT OF CHANCERY
S. C. Tamlyn, 416; 9 L. J. Ch. (O. S.), 232. See Bastin v. Bidwell, 1881, 18 Ch. D., 247.
[506] davis v. thomas. Roll*. May 5, 1830 ; L. C., July 7, 14, 25, 1831. '?'" ' TS. C. Tamlyn, 416 ; 9 L. J. Ch. (0. S.), 232. See Kanlin v. BitlwrM, 1881, 18 Ch. D., 247]. 'Though, in cases of non-payment of money, the Court will relieve against penalty or forfeiture, yet, when it is not a question of penalty or forfeiture, but a privilege is conferred upon payment of money at a stated period, the privilege is lost, if the money be not paid accordingly. The Plaintiff, being entitled to the equity of redemption of a certain estate, òconveyed the same by a deed of release, dated the 29th of September 1820, to Mrs. Twyning, the mortgagee, in consideration of £1800, which was made np of the mortgage debt, and of an additional sum of money paid to him. On the 1st of -January 1821, the mortgagee demised the estate to the Plaintiff for a term of ninety-nine years, determinable on the death of the survivor of him, his wife, and son, at a rent of £1 05, payable half-yearly at Lady-day and Michaelmas ; and on the lease there was endorsed an agreement signed by the mortgagee, by which it was stipulated that, in case the Plaintiff regularly paid the rent due at Lady-day by the 4th of June, and the rent due at Michaelmas by the 26th of October, he should be at liberty to repurchase the premises at the price of £1850 at any time within five years ; but if ò default were made in the payment of the rent within the stated periods, the agree ment was to be void. The Plaintiff failed in the payment of his rent at the periods stated, and distresses for it had been levied on the premises ; but, within the five years, he applied to repurchase, and at the same time tendered the arrears of rent then due. The Defendant refused to permit the repurchase ; and the bill was filer! by the Plaintiff to have the benefit of the stipulation in that respect, or to be let in to redeem. The bill imputed fraud to the Defendant, and represented the estate as having been, in 1820, worth about [507] £3000 : but these allegations were not established by the evidence. Mr. Pemberton and Mr. Parker, for the Plaintiff. This case rests upon the same principle with those in which the Court has interfered to relieve against the nonpayment of rent at a day certain ; and as the Court by giving interest can make ò compensation for the delay of payment, the relief prayed ought to lie granted. A conveyance with a right of repurchase is in the nature of a mortgage : it is a mere security for a sum of money (Mellor v. Lcru, 2 Atk., 494 ; Floi/er v. Luvington, 1 P. W., 268 ; Willett v. jyinnett, 1 Vern., 488). The right of repurchase must have been in the contemplation of the parties when the terms of the purchase were settled. Mr. Bickersteth and Mr. Wakefield, coniru., insisted that the agreement, giving the right of re-purchase on certain conditions, was a transaction totally distinct from the purchase ; that the right did not arise unless this condition was strictly fulfilled ; .and that the payment of the rent within specified periods had been made of the essence of the contract...
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