George Rice, Lydia Rice and William Nail and Hannah, his Wife, v Michael Rice, Joseph Ede and Stephen Knight
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1853 |
| Date | 16 December 1853 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 646
HIGH COURT OF CHANCERY
S. C. 2 Eq. R. 341; 23 L. J. Ch. 289; 2 W. R. 139. See Layard v. Maud, 1867, L. R. 4 Eq. 404; Hunter v. Walters, 1870-71, L. R. 11 Eq. 312; L. R. 7 Ch. 75; R. v. Shropshire Union Canal Company, 1873-75, L. R. 8 Q. B. 442; L. R. 7 H. L. 510; Keith v. Burrows, 1876-77, 1 C. P. D. 733; 2 C. P. D. 163; 2 App. Cas. 636. Spencer v. Clarke, 1878, 9 Ch. D. 142: Ortigosa v. Brown, 1878, 47 L. J. Ch. 174; Cave v. Cave, 1880, 15 Ch. D. 648; Kettlewell v. Watson, 1882-84, 21 Ch. D. 712; 26 Ch. D. 501; Bickerton v. Walter, 1885, 31 Ch. D. 159; In re Vernon, Ewens & Company, 1886, 33 Ch. D. 408; Union Bank of London v. Kent, 1888, 39 Ch. D. 245; Farrand v. Yorkshire Banking Company, 1888, 40 Ch. D. 190; Carritt v. Real and Personal Advance Company, 1889, 42 Ch. D. 271; In re Eyton, 1890, 45 Ch. D. 462; Taylor v. Russell [1891], 1 Ch. 17; [1892], A. C. 244; Lloyds Bank, Limited, v. Bullock [1896], 2 Ch. 197; In re Castell & Brown, Limited [1898], 1 Ch. 319; Rimmer v. Webster [1902], 2 Ch. 173.
Priority. Equities, Priority between.
[73] george eice, lydia bice and william nail and hannah, his Wife, v. michael eice, joseph ede and stephen knight. Dec. 15, 16, 1853. ,\ll C. 2 Eq. R. 341 ; 23 L. J. Ch. 289 ; 2 W. E. 139. See Layard v. Maud, 1867, L. E. 4 Eq. 404; Hunter v. Walters, 1870-71, L. E. 11 Eq. 312; L. E. 7 Ch. 75; B. v. Shropshire Union Canal Company, 1873-75, L. E. 8 Q. B. 442; L. E. 7 H. L. 510; Keith v. Burrows, 1876-77, 1 C. P. D. 733; 2 C. P. D. 163; 2 App. Gas. 636. Spencer v. Clarke, 1878, 9 Oh. D. 142: Ortigosa v. Brown, 1878, 47 L. J. Ch. 174; Cave v. Cave, 1880, 15 Ch. D. 648; Kettkwell v. Watson, 1882-84, 21 Ch. D. 712 ; 26 Ch. D. 501; Bickerton v. Walter, 1885, 31 Ch. D. 159; In re Fernon, Ewens & Company, 1886, 33 Ch. D. 408; Union Bank of London v. Kent, 1888, 39 Ch. D. 245 ; Farrand v. Yorkshire Banking Company, 1888, 40 Ch. D. 190; Carritt v. Seal and Personal Advance Company, 1889, 42 Ch. D. 271; In re Eyton, 1890, 45 Ch. D. 462 ; Taylor v. Sussell [1891], 1 Ch. 17 ; [1892], A. C. 244; Lloyds Bank, Limited, v. Bullock [1896], 2 Ch. 197; In re Castell & Brown, Limited [1898], 1 Ch. 319; Simmer v. Webster [1902], 2 Ch. 173.] Priority. Equities, Priority between. Vendor conveyed without receiving his purchase-money; the receipt of it was endorsed on the deed, and the title-deeds delivered to the purchaser. The purchaser then made a mortgage by deposit and absconded. Held, as between the vendor's lien for his unpaid purchase-money, and the right of the mortgagee, that the possession of the title-deeds and the fact of the endorsement of the receipt on the deed, gave the mortgagee the better equity. Principles of the rule as to the e$6ect of priority in point of time. This was the hearing of the cause on a motion for a decree. Michael Eice, the first Defendant, purchase!! from George Eiee, E. Moore and his wife, Lydia Eice, and W. Nail and his wife, certain leasehold property. On the execution of the assignment E. Moore received his share of the purchase-money ; but no money was received by the other vendors, who allowed the payment to stand over for a few days on the promise of the purchaser then to pay. However, the assignment recited the payment of the whole purchase-money, and the usual receipt was endorsed on it, and the other title-deeds were delivered up to the purchaser. The day following the execution of the deed Michael Eice deposited the assign ment and title-deeds with the Defendants Ede and Knight, with a memorandum of deposit, to secure an advance. Eice then absconded, without paying either the vendors or the equitable mortgagees. , These were the principal facts of the case. The other material circumstances will be found stated in the judgment. The bill was for payment of the purchase-money, nor for sale of the premises; arid it being admitted that [74] there was not enough to pay both the vendors and the equitable mortgagees, the question in the cause was-which ought to have priority, the vendors or the equitable mortgagees. Mr. E. F. Smith, for the Plaintiffs. This question was raised but not decided in Nairn v. Prowse (6 Ves. 752). In principle, however, the point has been decided. 2 DBEWRY, 75. RICE V. RICE 64T In Macreth v. Symmons (15 Ves. 328) the lien of a vendor is much considered. According to that case the lien of the Plaintiffs would prevail, unless the deposit of the deeds make a difference: A lien v. Knight (5 Hare, 272). It is quite true that here the vendors put it in the power of the purchaser to commit a fraud. But on the other hand the mortgagees might have taken, and have not taken, the legal title. There being a receipt endorsed on the deed is of no consequence, for, whether it is or not, the lien prevails: Allen v. Knight, on appeal (11 Jur. 527); Plumb v. Fluitt (2 Anstr. 572); Barnett v. Western, (12 Ves. 130). So the mere letting the title-deeds go and remain out of the possession of the vendors, the persons...
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