Ford v Wastell
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1847 |
| Date | 17 July 1847 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 1071
HIGH COURT OF CHANCERY
See Prees v. Coke, 1870-71, L. R. 6 Ch. 649.
[591] fokd v. wastell. July 17, 1847. [See Frees v. Coke, 1870-71, L. R. 6 Ch. 649.] /?& / The enrolment of an order absolute of foreclosure does not, any more than an enrolment of the decree of foreclosure, preclude the Court from again enlarging the time in a proper case and upon the usual terms. The Defendant in this suit was entitled under her father's will to a share of his real estate, subject to the payment of his debts ; and the Plaintiff had acted as her solicitor in a suit for the administration of the testator's estate : but the Defendant having changed her solicitor in the progress of the cause, he brought an action against her for the amount of his bill of costs, and, having recovered judgment, he instituted this suit as a judgment-creditor for a sale under the 1 & 2 Viet. c. 110, of the Defendant's share of her father's real estate. At the hearing of that suit a decree was made for foreclosure, the Defendant preferring that to a sale ; and, after several enlargements of the time for payment of the principal, interest, and costs, the Plaintiff ultimately obtained an order absolute of foreclosure, which order was in due course enrolled ; after which the Defendant applied to open the foreclosure, and for a further enlargement of the time. Vice-Chancellor Wigram, before whom the motion was made, originally declined 1072 NIGHTINGALE V. GOULBOURN 2 PH. 592. to make the order, suggesting that, as the vacating of an enrolment was iti question, the application had better be made to the Lord Chancellor. A motion was accordingly now made before his Lordship for an enlargement of the time, and, if necessary, that the enrolment might be vacated. [092] It was not disputed that the Defendant's interest in the estate was worth three or four times the amount of the debt, and, upon that and other circumstances of hardship in the case, the Lord Chancellor at an early stage of the argument intimated his opinion, that, but for the enrolment, he should be bound by the authorities to grant the application. The argument was therefore confined to the effect of the enrolment. On that point, Mr. Wood and Mr. Goodeve cited Coker v. Beavit (1 Eep. Ch. 134) and Ismoonl v. Claypool (1 Eep. Ch. 139), both in the time of Charles the Second, in which it was treated as a common practice to open decrees of foreclosure, notwithstanding enrolment; also, Kemp v. Squire (1 Vez. sen. 205, and 1 Dick. 131), in which a decree, obtained by default, was opened by Lord Harclwicke after enrolment. Benson v. Vernm (3 Br. P. C. 626), in which the same thing was done by the House of Lords, and Cromptun v. Lord Ejffingham (9 Sim. 311, n.), in which the time was enlarged, notwithstanding the order absolute for foreclosure had, as in this case, been enrolled. They admitted that enrolment precluded this Court from rehearing any cause upon the merits; but they contended that an order of foreclosure absolute was not to be considered as an adjudication upon the merits, otherwise the Court would not, on motion, open such an order for the purpose of enlarging the time, even where it had not been enrolled; and yet in that case it was a common practice. the lord chancellor. The cases in which the decree has been enrolled do [593] not help you. The meaning of a decree in a foreclosure suit is merely that, in a certain event-viz., non-payment of money within a time to be fixed by the Master -the Court will foreclose. It is the subsequent order on default of payment which creates the foreclosure, and it is that order which ia here enrolled. Grampian v. Lord Ejfingham seems to be the only case in which the time has been enlarged after enrolment of the order absolute : but in that case there was another ground for opening the foreclosure, as the order absolute appears to have been made during an abatement of the suit. As to the older cases, I attach little weight to them, they are so loose. One of them, the report of which is in four lines, contains, no doubt, the whole proposition...
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