Dryden v Frost
| Jurisdiction | England & Wales |
| Judgment Date | 17 November 1838 |
| Date | 17 November 1838 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1084
HIGH COURT OF CHANCERY
S. C. 2 Jur. (O. S.), 1030; 8 L. J. Ch. (N. S.), 235. As to custody of title-deeds, see Hewitt v. Loosemore, 1851, 9 Hare, 457; and as to costs, National Provincial Bank of England v. James, 1886, 31 Ch. D. 592.
[670] dryden v. frost. Nov. 8, 15, 1837; Nov. 17, 1838. [S. C. 2 Jur. (0. S.), 1030 ; 8 L. J. Ch. (N. S.), 235. As to custody of title-deeds, see Hewitt v. Loosemore, 1851, 9 Hare, 457 ; and as to costs, National Provincial Sank of Englarul v. Jamm, 1886, 31 Ch. D. 592.] If the same person is agent both for the vendor and purchaser, or is himself vendor and agent for the purchaser, whatever notice he may have will affect the purchaser; and a purchaser taking a conveyance from a vendor who has not possession of the title-deeds will take it with notice of any claim which the party in possession of the title-deeds may have. The benefit of the vendor's lien for purchase-money unpaid may be assigned by a parol to a third party ; Sernble. An equitable mortgagee is not entitled to have out of the estate his costs of an unsuccessful attempt to defend an action at law for recovery of the mortgaged premises. This was the appeal of two of the Defendants, the personal representatives of John Frost deceased, against a decree of His Honour the Vice-Chancellor. the solicitor-general [Rolfe] and Mr. J. J. Jervis, for the appeal. Mr. Wigram and Mr. Duckworth, in support of the decree. 3 MY. & CE. 871. DBYDEN V. FROST 1085 The material facts of the case, and the points raised by the appeal, are fully stated and considered in the judgment. Noc. 17, 1838. the lord chancellor [Cottenham], The decree in this case gives to the Plaintiff the ordinary relief as an equitable mortgagee for the sum of 66, 13a. 4d., as to which there is no dispute: but the questions raised by the appeal are, whether the decree is right in also giving to the Plaintiff the benefit of a lien for another sum of 50, and in directing that the costs at law which the Plaintiff has. been compelled to pay to the Defendants should be repaid by them personally to the Plaintiff; and in giving to the Plaintiff payment of his own costs at law out of the estate. The facts, as admitted or proved, appear to be that James Kelsey, the original owner of the property, created several mortgages by demises for terms of years, prior to the mortgage claimed by the Plaintiff; and on the [671] 16th of May 1821 demised part of the property to Thomas Sharpe for nineteen years, to secure 66, 13s. 4d. and interest, which mortgage term has become vested in the Plaintiff by assignment of the executrix of this Thomas Sharpe, dated the 20th of October 1831. On the 12th of June 1829, Kelsey, the owner of the inheritance, conveyed the property, subject to the mortgages, to one Atkinson, upon trust to sell; and on the 2d of June 1830, Atkinson, Kelsey, and all the mortgagees except the executrix of Sharpe...
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...decisions which support the general rule are those of Lord Eldon L.C. in Detillin v. Gale (1802) 7 Ves. 583, of Lord Cottenham L.C. in Dryden v. Frost (1838) 3 My. & Cr. 670 and of this court (Cotton, Bowen and Fry L.JJ.) in National Provincial Bank of England v. Games (1886) 31 Ch.D. 582. ......
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