Du Vigier v Lee
| Jurisdiction | England & Wales |
| Judgment Date | 24 February 1843 |
| Date | 24 February 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 134
HIGH COURT OF CHANCERY
S. C. 12 L. J. Ch. 345; 7 Jur. 299. See Pile v. Pile, 1875, 23 W. R. 441; Dingle v. Coppen [1899], 1 Ch. 726; In re Lloyd [1903], 1 Ch. 399.
[326] dti vigier v. lee. Feb. 15, 16, 17,18, 24, 1843. [S. C. 12 L. J. Ch. 345 ò 7 Jur. 299. See Pile v. Pile, 1875, 23 W. E. 441; Dingle v. Coppen [1899], 1 Ch. 726 ; In re Lloyd [1903], 1 Ch. 399.] Under the statutes 3 & 4 Will. 4, c. 27, s. 42, and 3 & 4 Will. 4, c. 42, s. 3, a mortgagee of land, whose mortgage debt and interest are secured also by a bond or covenant, is entitled in a foreclosure suit to charge the mortgaged estate with the full arrears of interest accruing on the mortgage debt, within twenty years before the institution of the suit. The price of redeeming the mortgaged premises is the same in a suit by the mortgagor to redeem as it would be in the like circumstances in a suit by the mortgagee to foreclosure. 2 HARE, 327. DIJ VIGIER V.- LEE 135 If the debt and interest are secured only by the mortgage, the mortgagee is entitled to no more than six years' arrear of interest, semble. A bill of foreclosure. In 1787 W. Hurst borrowed £1100 of Sarah Palmer, for which he gave his bond, dated the 9th of March 1787, binding himself, his heirs, executors and administrators in the penal sum of £2200, conditioned for the repayment of the £1100 and interest, as therein mentioned, unto the said Sarah Palmer, her executors, administrators or assigns; and by indentures of lease and release, dated the 8th and 9th of March 1787, W. Hurst conveyed certain lands in the county of Glamorgan to Sarah Palmer, her heirs and assigns, in fee, as a collateral security for the payment of the said £1100 and interest, with a proviso for redemption on payment thereof, and a covenant by the mortgagor, for himself, his heirs, executors and administrators, to pay the same. On the marriage of Sarah Palmer with R. Hurst, in 1789, the mortgage money was settled to the use of the husband for life, with remainder to the use of the wife for life, remainder as she should appoint; and the estate was vested in Bengough and others, as trustees of the settlement, subject to the proviso for redemption. Sarah Hurst survived her husband, and died in 1802, having appointed the mortgage money to Tickell and another, in trust for her daughter, the Comtesse De L'Age, for her life, for her separate use, with remainder to her children. The Comtesse De L'Age died in January 1826 leaving her husband (who obtained letters of administration to her estate) and two daughters, namely, the Plaintiff, the Vicomtesse Du Vigier (who-attained twenty-one years of age in April 1826), and Maria [327] Sophia De L'Age. Maria Sophia De L'Age died in October 1826, having bequeathed her interest in the mortgage money to Sophia Foucault De L'Age and Emilia De L'Age, and appointed her father, the Comte De L'Age, her executor. The Comte De L'Age died in July 1831, and the Plaintiff, J. S. Gregory, as the attorney of the Vicomtesse Du Vigier, procured letters of administration de bonis non of the effects of Maria Sophia De L'Age. The equity of redemption of the mortgaged estate became vested by devise in the Defendants, E. H. Lee and H. T. Lee, subject to certain annuities. In July 1825 the interest being in arrear, the then owner of the estate paid to the Comtesse De L'Age the sum of £800 on account of such interest. The bill was filed the 21st of October 1837 by the Vicomtesse Du Vigier and her husband, and the administrator de bonis non of the deceased sister, Maria Sophia De L'Age, against E. H. Lee and H. T. Lee, the devisees, and the annuitants, under the will of H. Lee, the heir at law of Bengough, in whom the legal estate in the mortgaged premises was vested, the executor of Tickell, the surviving trustee of the mortgage money, and the legatees of Maria Sophia De L'Age (who were out of the jurisdiction). The bill alleged that in July 1826 a further arrear of interest, amounting to £427, 6s. 8d., was due upon the mortgage, making, together with the principal, the sum of £1527, 6s. 8d., and that a negotiation then took place, and indentures were prepared and executed by some of the parties for reconveying the estate upon payment of that sum, but the arrangement was not completed. The bill alleged that the whole of the said sum of £1527, 6s. 8d. and the interest thereof, or of the said £1100, and the interest [328] due in July 1827, and which had since accrued due, still remained unpaid, and that the mortgaged premises ought not to be redeemed except upon payment thereof. The bill prayed that the said sum of £1527, 6s. 8d. and the interest thereof, or such other principal sum and interest as to the Court should seem fit, might be declared to constitute a charge upon the mortgaged premises, and that an account might be taken of what was due and owing to the Plaintiffs upon the security of the mortgage and bond, and that the Defendants, E. H. Lee and H. T. Lee, or the other Defendants, the annuitants, or one of them, might be decreed to pay to the Plaintiffs what should appear to be due on the taking of such account, and the costs of the suit; and that in default of such payment, E. H. Lee and H. T. Lee (and the annuitants) and all persons claiming by from, through or under them or any of them, might be barred and foreclosed of all right and equity of redemption of and in the mortgaged premises, and might deliver up all deeds and evidences relating to the same. There was no evidence in the cause of any payment of interest on the mortgage 136 DD VIGIEE V. LEE 2 HARE, 329. after the month of August 1825; but some letters were proved for the purpose of shewing a subsequent acknowledgment of the debt and interest by the mortgagors or their agents. Mr. Bazalgette and Mr. Eomilly, for the Plaintiffs. The mortgagee is entitled to foreclose, unless he be paid the principal of his mortgage and the whole interest which is due to him thereon, not exceeding twenty years back; for his debt and interest are secured by the bond and covenant of the mortgagor, and the right to [329] recover specialty debts for that period is expressly saved by the statute 3 & 4 Will. 4, c. 42, s. 3.(1) The form of this mortgage, moreover, makes it only a collateral security for the debt, which is purely a debt on bond, and is not therefore a charge on land within the meaning of the statute 3 & 4 Will. 4, c. 27, s. 42.(2) Nor can it be accurately said (as in Dearman v. Wyche (9 Sim. 575)) that a foreclosure suit is a suit to recover money. Whatever [330] might be the case where there is no bond or covenant to secure the money, yet where, as in the present case, those specialties exist, the Court, to prevent circuity of action, will give effect to them in the same proceeding in which it deals with the mortgage-no intervening interests of other parties appearing to interfere with such remedies of the mortgagee. Mr. Tinney and Mr. Baily, for the Defendants entitled to the equity of redemption, argued, first, that a representative of the Comtesse De L'Age, the late tenant for life of the mortgage money, was a necessary party in respect of the interest, if any, accruing in her lifetime. Secondly, that all remedy in this or any other form of proceeding directly against land in respect of more than six years' arrears of interest was expressly excluded by the terms of the statute 3 & 4 Will. 4, c. 27, s. 42. And, lastly, that in the event of the right of the Plaintiffs being limited to six years, the costs of the suit were unnecessarily incurred, as the Defendants had in effect offered to pay such interest without suit. The following cases were also cited on the construction of the statutes in their bearing on the question of interest: Doe d. Jones v. Williams (5 Ad. & El. 291); Paget v. Foley (2 Bing. N. C. 679); Lard, St. John v. Boughton (9 Sim. 219); Hodges v. Croydon Canal Company (3 Beav. 86); Hellish v. Brooks (Id. 22); Sfrachan v. Thomas (12 Ad. & El. 556); Holland v. Clark (1 Y. & C. C. C. 151). On the point of tacking (1) Sect. 3 enacts, "that all actions of debt for rent upon an indenture of demise, all actions of covenant or debt upon any bond or other specialty, and all actions of debt, or sdre facias upon any recognizance, and also all actions of debt upon any award where the submission is not by specialty, or for any fine due in respect of any copy hold estates, or for an escape, or for money levied on any fieri facias, and all actions for penalties, damages or sums of money given to the party grieved, by any statute now or hereafter to be in force, that shall be sued or brought at any time after the end of the present session of Parliament, shall be commenced and sued within the time and limitation hereinafter expressed, and not after; that is to say, the said actions of debt for rent upon an indenture of demise, or covenant, or debt upon any bond or other specialty, actions of debt or sdre facias upon recognizance, within ten years after the end of this present session, or within twenty years after the cause of such actions or suits, but not after; the said actions by the party grieved, one year after the end of this present session, or within two years after the cause of such actions or suits, but not after; and the said other actions within three years after the end of this present session, or within six years after the cause of such actions or suits, but not after; provided that nothing herein contained shall extend to any action given by any statute, where the time for bringing such action is or shall be by any statute specifically limited." (2) Section 42 enacts, "that, after the 31st of December 1833, no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action or suit...
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