Earl of Mansfield v Ogle
| Jurisdiction | England & Wales |
| Judgment Date | 09 June 1855 |
| Date | 09 June 1855 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 71
BEFORE THE LORDS JUSTICES.
S. C. 24 L. J. Ch. 450; 1 Jur. (N. S.), 603; 3 W. R. 557.
[181] earl of mansfield v. ogle. Before the Lords Justices. June 6, 7, 9, 1855. | [S. C. 24 L. J. Ch. 450 ; 1 Jur. (N. S.), 603 ; 3 W. E. 557.] A reversioner in fee expectant on the death of a tenant for life aged sixty-one, mortgaged in 1819 his reversion by way of trust to secure repayment of an advance of 500 on the death of the tenant for life, with 500 more if the tenant for life died within five years, and twice as much more if he died after that period. Held, under the law then in force, that the security was void as usurious. To a foreclosure bill filed by a mortgagee stating subsequent incumbrances, and that some specified Defendants claimed an interest in the mortgaged property, one of these Defendants put in an answer claiming to be entitled under the above-mentioned security. By the decree the usual reference was directed as to incumbrances and their priorities. The above Defendant claimed as an incumbrancer under this decree and the Master disallowed his claim. Held, that the Master had jurisdiction so to decide, although the security was not impeached by the pleadings. 72 EARL OF MANSFIELD V. OGLE 7 DE 0. M. & G. 182. This was an appeal from an order of Vice-Chancellor Stuart, allowing exceptions to the report of Master Eichards, made under an order directing him to inquire and state what charges and incumbrances there were affecting the estates in the pleadings mentioned, and to state their priorities, and to take an account of the principal and interest due upon such incumbrances, with liberty to state special circumstances as to the charges and incumbrances. The suit was that of a mortgagee seeking to redeem prior incumbrances and to foreclose subsequent ones, and the Master, in executing this decree, had treated as void a security made to two mortgagees, named Complin and Wheeler, in 1819. which was subsequent to one of the Plaintiff's securities and prior to another. The interest [182] of Complin under this security had become vested in his representative Mr. Cobb, one of the Defendants-the present Respondent-with respect to whom and other incumbrancers, the bill, without particularizing their securities, alleged that they claimed an interest in the mortgaged premises. Mr. Cobb by his answer stated the particulars of his security, which was created by indentures of lease and release dated 14th and 15th May 1819. By the latter deed, after reciting that the mortgagor was entitled to the property in fee-simple, subject to the life-estate of his father, and that he had occasion to borrow 2000, which Henry Wheeler and Edward Complin had agreed to advance upon the terms following, viss., Wheeler, 1500, and Complin, 500, on the day of the date thereof, which sums were to be repaid to them on the death of the mortgagor's father, and as much more, viz., 1500 more to Wheeler and 500 more to Complin, provided the father should happen to die within five years from the date of the deed, but if he should survive that period, then that, on his death after that period, 1500 and twice as much more should be paid to Wheeler, and 500 and twice as much more to Complin : It was witnessed that the mortgagor granted and released the property, subject to the life-estate, to a trustee upon trust, on the death of the mortgagor's father, if the same should take place within five years, to raise 3000 and 1000 for Wheeler and Complin respectively, but if the father should live beyond five years, then to raise 4500 and 1500 for Wheeler and Complin respectively. The Plaintiff filed a replication, and in 1849 the decree was made. Mr. Cobb went in under the decree, and claimed to be [183] an incumbrancer for 1500, with interest from the 14th of August 1844, when the father died. The Master disallowed the claim, on the ground that the deed was void for usury, the mortgagor's father having been born in 1758, so that, unless he had lived to the age of 101, more than 5 per cent, must have been paid. The Vice-Chancellor held that the Master had no jurisdiction to entertain the question, inasmuch as the deed was not sought to be impeached by the bill; and on Mr. Cobb consenting to accept the 500, with lawful...
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