Giles Thornborough Clerk, and Jane his Wife, Daughter and Heir of Laurence Clifton, Gent. Plaintiffs; Jo. Baker, Son and Heir of Ja. Baker, Jo. Nicholl, Esq. and Jane his Wife, Administratrix of the said Ja. Baker, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1675 |
| Date | 01 January 1675 |
| Court | High Court of Chancery |
English Reports Citation: 22 E.R. 1117
Chancery Division
See S. C., with full notes. Wh. & T. L. C., 7th ed., vol. 2. p. 1.
2 FREEMAN, 144. CLERK V. BAKER 1117 C. 183.-giles thornborough clerk, and jane his Wife, Daughter and Heir of laurence clifton, Gent. Plaintiffs; Jo. baker, Son and Heir of ja. baker, Jo. nicholl, Esq. and jane his Wife, Administratrix of the said ja. baker, Defendants. 10 July 27 Car. 2 [1675].(1) [See S. C., with full notes. Wh. & T. L. C., 7th ed., vol. 2, p. 1.] Mortgage money, heir or executor, who shall have it. Ante, Case 11 [and notes]. The question was, whether the heir or executor should have the mortgage money 1 And after consideration in this case, resolved, that the executor should have it, per Finch, Lord Keeper, the mortgage being forfeited, though it was mentioned, that if the mortgagor did pay, &c., to the mortgagee, his heirs, executors, or administrators, &c. Because the reason of the common law in these cases ought, as near as may be, to be followed in equity. Now by the common law, if the condition or defeasance of a mortgage of inheritance be so penned, that no mention is made either of heirs or executors to whom the money should be paid, in that case the money ought to go to the executors, in regard the money came first out of the personal estate, and therefore naturally returns thither again; but if the defeasance appoints the money to be paid either to the heirs or executors, there by the common law, if the mortgagor pay the money precisely at the day, he may elect to pay either to the heir or executor. But where the precise day is past, and the mortgage forfeited, all election is gone, for in law there is no redemption ; then when the case is reduced to an equity of redemption, that redemption is not to be upon payment to the heir or executor of the mortgagee, at the election of the mortgagor, for it were against equity to revive the election; for then the mortgagor [144] might defer the payment as long as he pleased, and at last force a composition by payment of the money to that hand which will use him best; much less can the court elect or direct a payment where they please, for a power so arbitrary might be attended with many inconveniences; there ought therefore to be a certain...
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Thornborough v Baker
...36 E.R. 1000 HIGH COURT OF CHANCERY Thornborough and Baker [628] thornborough v. baker, IQthJuly, 27 Car. 2, 1675. 1 Ca. in Cha. 283; 2 Freem. 143.-The executor, not the heir, of a mortgagee in fee, is entitled to the money secured by the mortgage. Reasons of that doctrine. Lawrence Clifton......