Espin v Pemberton
| Jurisdiction | England & Wales |
| Judgment Date | 28 January 1859 |
| Date | 28 January 1859 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 1380
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD.
S. C. 4 Drew. 333; 28 L. J. Ch. 311; 5 Jur. (N. S.), 157; 7 W. R. 221. See Bradley v. Riches, 1878, 9 Ch. D. 196. Considered, Cave v. Cave, 1880, 15 Ch. D. 639. Referred to, Manners v. Mew, 1885, 29 Ch. D. 731.
[847] espin v. pemberton. Before the Lord Chancellor Lord Chelmsford. Jan. 27, 28, 1859. [S. C. 4 Drew. 333; 28 L. J. Ch. 311; 5 Jur. (N. S.), 157; 7 W. R. 221. See Bradley v. Riches, 1878, 9 Ch. D. 196. Considered, Gave v. (Jam, 1880, 15 Ch. D. 639. Referred to, Manners v. Mew, 1885, 29 Ch. D. 731.] The circumstances of a mortgagor being a solicitor, and preparing the mortgage deed, and of the mortgagee employing no other solicitor, are not sufficient to constitute the former the solicitor of the latter, so as to affect him with notice of an incum-brance known to the solicitor. Notice to a solicitor is actual notice to his client. Where a bond, fide inquiry is made for title deeds on a mortgage or purchase, and a reasonable excuse is made for their not being forthcoming, their absence does not affect the purchaser or mortgagee with constructive notice of an incumbrance created by the deposit of them. This was an appeal from the decision of Vice-Chancellor Kindersley, reported in the 4th Volume of Mr. Drewry's Reports (page 333), holding that William Edward Browne, one of the Defendants, was a bond fide purchaser, without notice, of an equitable mortgage, sought to be enforced by the bill, which prayed for a foreclosure. The equitable mortgage was created by the deposit by William Augustus Sadler Pemberton, one of the Defendants, of a lease, with the following memorandum:- [548] " I, William Augustus Sadler Pemberton, of No. 8 Southampton Street, in the county of Middlesex, solicitor, do hereby acknowledge and declare, that as a consideration and inducement to Mr. John Espin, of No. 50 Bedford Row, in the county of Middlesex, solicitor, to advance me the sum of £300, and previously to his advancing the same, I did agree to charge, and in pursuance of that agreement I do hereby charge, and for myself, my heirs, executors and administrators do agree to do and execute any act and deed that shall by the said John Espin, his executors, administrators or assigns, or his or their counsel, be reasonably required or deemed necessary, for the better and more effectually charging by assignment or otherwise the lease of certain premises situate and being No. 8 Southampton Street aforesaid, from His Grace the Duke of Bedford to James Mallock, Esq., dated the 27th day of March 1843, and the assignments of such leases, dated respectively the 21st day of December 1856, and the 2d day of January 1854, on being required by the said John Espin, his executors, administrators or assigns, to give such further security. As. witness my hand this llth day of January 1855.-Wk, aug. sadler pemberton." 3DBO.ftJ.M9. ESPIN V. PEMBERTON 1381 At the same time Mr. Pemberton signed and delivered to the Plaintiff hia promissory note for £300, dated the llth of January 1855, payable three months after date. On the delivery to the Plaintiff of the above documents, the Plaintiff paid to Mr. Pemberton £300, less the interest. The promissory note was several times renewed, and the last renewed note fell due on the 9th of August 1857, when it was dishonoured. [549] On the 9th of November 1857, the Plaintiff called at Mr. Pemberton's office, and saw Mr. Moojen, who was stated to be a partner with Mr. Pemberton, and who told the Plaintiff that an assignment had been made of the lease to Mr. Browne, one of the Defendants. This assignment was dated the 8th of September 1857, but was not registered in the Middlesex Registry Office till the 12th of November 1857. The attesting witnesses to its execution were clerks to Mr. Pemberton, and the bill charged that in fact at the...
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