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Ex parte Topham

Nominate Series English Reports Cited authorities 4 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date02 August 1815
Date02 August 1815
CourtHigh Court of Chancery

English Reports Citation: 56 E.R. 15

COURT OF THE VICE-CHANCELLOR OF ENGLAND

Ex parte Topham

[38] Ex parte topham. August 2, 1815. No authority in bankruptcy on petition of equitable mortgagee by deposit of deeds, to order sale of the estate, where there is a subsequent mortgagee of the equity of redemption who objects, and has not proved under the commission; the proper remedy being by bill. This was a petition in bankruptcy for the usual order for sale, on behalf of an equitable mortgagee, by deposit of title-deeds of a leasehold estate, and that he might come in under the commission for the deficiency. The deposit was made in January 1812. Afterwards, in June 1813, before the bankruptcy, the bankrupt agreed to sell the estate to a Mr. Ward--received the purchase-money, and let Ward into possession -but did not execute a conveyance. Mr. Heald, for the petition. Mr. Home opposed it, on behalf of Ward ; and contended that no such order could be made, there being an agreement for a sale to Ward of the equity of redemption, who refuses to consent to a sale, and has not proved under the commission, and that a bill must be filed. the vice-chancellor [Sir Thomas Plumer]. This is a proper case for a bill. Even in the case of a legal mortgage the Commissioners are not authorized to order a sale, unless in cases where the bankrupt has in himself the equity of redemption.(3) (1) See Anon., 1 P. Wms. 327, Spring on dem.; Titcher v. Biles, in note to 1 T. R. 118; Green v. Howard, 1 Ves. jun. 31; Wright v. Atkins, Cop. 118. (2) The words " share and share alike " have been held to have the same meaning as " equally to be divided," Phillips v. Garth, 3 Bro. C. C. 64. (3) In Ex parte Jackson, 5 Ves...

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