Duke v Robson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 11 December 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1211-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 1972 |
[1972] EWCA Civ J1211-1
Lord Justice Russell,
Lord Justice Stanp and
Lord Justice Roskill.
In The Supreme Court of Judicature
Court of Appeal
(On appeal from Order of Mr. Justice Plowman, 4th December. 1972.)
MR. J. R, MACDONALD, (instructed by Messrs. Sharpe, Pritchard & Co., Agents for Messrs. W. Norris Bazzard & Co. of Amersham, Bucks.) appeared on behalf of the Appellants (Plaintiffs).
MR G. M. GODFREY, Q. C. and MR T. JENNINGS, (instructed by Messrs. Metson, Cross & Co.) appeared on behalf of the Respondents (3rd and 4th Defendants).
We need not trouble you, Mr. Godfrey. This appeal from Mr. Justice Plowman raises a short point and the fact: are in a limited field. The matter came before the learned judge on a motion by the plaintiffs to restrain the mortgagees from carrying out a contract of sale to the 4th defendant, Mr. Collins, which is now due for completion, of a house, a freehold property, for the sum of £45,000. Mr. Justice Plowman refused the motion. The present application initially came before this court for an injunction to restrain the completion of that contract pending the hearing of the appeal. The parties have, however, agreed that we should treat the appeal, which has been set down as an interlocutory appeal, as being before us and to deal with the matter now.
The relevant facts as, as I have said, in a limited compass. The freehold house to which I have referred was owned by the 1st and 2nd defendants, a husband and wife, and it had been subject to a charge by way of legal mortgage to the 3rd defendants since March, 1968. There was due under that mortgage some £19,000 odd, and there were two subsequent incumbrances, bringing the total charge on the property to something approaching£27,000.
On the 17th March of this year the mortgagors contracted to sell the property for £25,000 to the plaintiffs. In saying that the mortgagors so contracted I have short circuited events, because on the 16th March the 2nd defendant, the husband, contracted to sell his beneficial Interest in. the house to the 1st defendant, his wife, for £25,000; and on the 17th March she contracted to sell the freehold to the plaintiffs. This sale, of course, would be a sale of the equity of redemption, albeit It was a contract for sale which no doubt as beneficial ownerwould impose on the 1st defendant the obligation to clear the incumbrances off the property
On the 28th September, 1972 the 3rd defendant, the first mortgagee, took possession of the property. On the 9th October, 1972 the plaintiffs registered their contract to purchase the house as a C4 land charge. On the 10th or 11th October, 1972, the plaintiffs, through their solicitors, offered to put into the joint names of their solicitors and the solicitors for the 3rd defendant, the mortgagees, a total of what was owing to all the three incumbrancers, but in fact with a top limit of £26,000, which I apprehend was not enough. On the 12th October the plaintiffs issued a writ against the 1st defendant for specific performance of the contract to sell to them. On the 7th November, 1972, the 3rd defendants, the mortgagees, pursuant to their power to sell under the mortgage, contracted to sell the property, as I have indicated, to Mr. Collins, the 4th defendant, for a sum of £45,000. Under that last contract completion was in fact due to-day, and, as I have said, Mr. Justice Plowman refused an injunction against completion of the contract.
It is perfectly plain that the information given on the 10th or 11th October, 1972 to the mortgagees solicitors that the plaintiffs were prepared to put (up to a ceiling of £26,000) the total due to the three incumbrancers into the joint names of solicitors could not be described as equivalent to a tender or payment of what was due under the incumbrances, which would be necessary if someone was to say on that ground that the mortgagees no longer had their power to sell available to them. Mr. Justice Crossman =in the case of Waring (Lord) -v- London and Manchester Assurance Co. Ltd. and Org. (1935 Ch. p. 311) indicated that that was what was required if an injunction was to be obtained againsta mortgagee purporting to exercise his power to sell by proposing to enter into a contract for sale thereunder. The reason for that, of course, is that...
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