Dyson v Morris
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1842 |
| Date | 09 March 1842 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1094
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 241; 6 Jur. 297.
[413] dyson v. morkis. Feb. 14, 23, March 9, 1842. [S. C, 11 L. J. Ch. 241; 6 Jur. 297.] The mortgagee of a real estate made a further advance and took, as security for the same, a further charge upon the mortgaged premises ; the covenant of the mortgagor for payment, and an assignment of a policy of assurance on the life of the mortgagor, upon trust to receive the monies to become payable on the policy, and thereout first to pay the expenses of the trust, then to apply the residue towards payment of the mortgage debt, or so much thereof as should remain due, and subject thereto upon trust for the mortgagor. Upon the bill of the mortgagee, praying a sale of the policy, and payment by the mortgagor of so much of the debt as the proceeds of the sale should be insufficient to pay, or in default that the mortgagor might be foreclosed :- Held, that the mortgagee was entitled only to the usual decree for payment or foreclosure of the real estate, and not to a decree for the sale of the policy ; but that he was entitled to retain the policy upon the terms of the trust, notwithstanding the foreclosure of the real estate. A party named as Defendant to the bill may, with the consent of the Plaintiff only, appear at the hearing of the cause, and be bound by the decree, although such party has not been served with the subpoena to appear, or has not appeared in the suit; but a person, who has not been named as Defendant to the bill, cannot appear at the hearing without the consent of all the parties to the cause. An allegation that A. B. and C. were named executors, and that A. and B. proved the will and are the personal representatives of the testator, may be proved by the production of the probate; and, in the absence of any denial of that fact by the answers, or any averment that C. also proved, C. is not a necessary party to the suit. Observations on the cases in which Defendants to an original bill should be made Defendants to a supplemental bill. The Defendant, Thomas Brooke Morris, in 1819, demised the Brockdish Hall estate, in Norfolk, to the [4l4] Plaintiff, for the term of 1000 years, by way of mort- f age for securing 5000 and interest. In 1823 Morris appointed and demised the himpling estate in the same county to Edgar Taylor, for the 'residue of a term of 1000 years, in trust for the Plaintiff, by way of mortgage for securing the said 5000 and a further sum of 1000, making together 6000 and interest. By an indenture, dated the 6th of April 1826, Morris charged the mortgaged estates with a further sum of 3350, advanced by the Plaintiff, and interest thereon; and, by the same indenture, reciting that, by a certain instrument or policy of assurance, the Corporation of the Amicable Society were bound to pay to the executors, administrators or assigns of Morris such a proportion or share of the joint stock and fund of the society as should become due upon the death of Morris, according to the charters and bye-laws of the society, Morris bargained, sold, assigned, transferred and set over unto the Plaintiff, his executors, administrators and assigns, all the said instrument or policy of assurance, and all monies which should become payable under or by virtue of the same, and all benefit and advantage thereof, to have, hold, receive, take and enjoy the said instrument or policy and monies, unto the Plaintiff, his executors, administrators and assigns, from thenceforth absolutely, with full power to demand, recover and receive the said monies, and to enforce, receive and take the full benefit of the said instrument or policy; but nevertheless, upon trust, that the Plaintiff should obtain payment and receive the monies which should become payable under 1HABE,415. DYSON V, MORRIS 1095 or by virtue of the said instrument or policy, when and as the same respectively should become due and payable, and thereout should first retain the expenses of the trust, and then apply the residue towards the payment of the 6000, and 3350 and interest, or so much thereof as should then remain [415] unpaid, and, subject thereto, to stand possessed of the said policy of assurance, monies and premises, upon trust for Morris, his executors, administrators and assigns. Morris by the same deed covenanted to pay the 3350 and interest; and declared and appointed that Edgar Taylor, in whom the said residue of the term of 1000 years in the Shimpling estate was vested, and Harry Browne, in whom the residue of another term of 1000 years in the same premises was vested, should respectively stand possessed of such terms and premises, upon trust for securing the 6000 and 3350 and interest, and, subject thereto, in trust for Morris, his heirs and assigns. The whole principal sums and some interest being unpaid, the Plaintiff in 183& filed his bill, stating the said mortgages, and that the said mortgage monies were part of the banking capital of the Plaintiff and his late partners, Meadows, Taylor and Harry Browne : that Harry Browne retired from the partnership in 1830, and assigned his interest in the said securities to the Plaintiff and Meadows Taylor; and that Harry Browne afterwards died, having, by his will, appointed Henry Browne, Edward Browne and Mary Anne Browne executors and executrix thereof; and that Henry Browne and Mary Anne Browne proved the said will, and thereby became and were the legal personal representatives of Harry Browne. The bill also stated that Meadows Taylor had since died, and had by his will appointed the Plaintiff and T. L. Taylor, M. Taylor and Elizabeth Taylor executors and executrix thereof; and that the will was proved by the Plaintiff and T. L. Taylor, who thereby became and were the legal personal representatives of Meadows Taylor. The bill stated that upon the death of Meadows Taylor the Plaintiff alone became interested in the said mortgage securities...
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