Hopgood v Ernest
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1865 |
| Date | 15 July 1865 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 581
BEFORE THE LORDS JUSTICES.
S. C. 13 W. R. 1004.
[116] hopgood v. ernest. Before the Lords Justices. June, 30, July 1, 15, 1865. [S. C. 13 W. R. 1004.] The Plaintiff having agreed with E. to advance him money on mortgage the Plaintiff's solicitor sent the mortgage deed to W., the solicitor of E., to obtain its execution. W., who was also the solicitor of K., sent by his clerk the Plaintiff's mortgage deed, and also a mortgage of the same property from E. to K. for execution by E. E. signed the Plaintiff's deed before K.'s, and gave both at once to the clerk, saying, "That is my delivery." The title-deeds were handed to the Plaintiff, when he advanced his money, he having no notice of the transaction with K. Held, by the V.-C. Wood, that the delivery of the two mortgage deeds was contemporaneous ; that they took effect at the same instant; that the Plaintiff and K, were tenants in common or joint-tenants of the legal estate, and that their mortgages were payable pari passu. Held, on appeal, that assuming this decision to be correct as to the legal estate, still K. must be postponed to the Plaintiff, because the title-deeds had been delivered to the Plaintiff without any notice of K.'s title, and without K.'a asking after the 582 HOPGOOD V. ERNEST a DB 0. J. & S. 117. deeds or making any claim to them, and that assuming her, by reason of W.'s committing a fraud, not to be affected with notice of the Plaintiff's title through W.'s knowledge of it, she still must be affected by his negligence in not asking for the deeds. This was a motion by way of appeal from a decision of Vice-Chancellor Wood, who had refused a motion to vary the chief clerk's certificate, finding that a mortgage belonging to the Plaintiff and his co-trustee, and a mortgage belonging to the Defendant Prances Kemp, ranked pari passii. In October 1855 the Defendant Ernest mortgaged an estate to Robert Govett and others in fee for £12,000, 0. A. Govett acting as solicitor for the mortgagees. In 1857 Ernest gave notice to the mortgagees, through Williams his solicitor, of his intention to pay off the mortgage. Not being able to procure the money in time, Ernest applied to the Law and Equity Insurance Company, who advanced him £13,000. The estate was thereupon reconveyed to Ernest and the deeds were deposited with the insurance company by way of equitable mortgage to secure the £13,000, and remained with them till the 3d of...
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