Howard v Harris
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1683 |
| Date | 06 November 1683 |
| Court | High Court of Chancery |
English Reports Citation: 22 E.R. 1074
Chancery Division
' [86] de term. S. mich. 1683, in curia cancellari^;. C. 95.-howard v. harris. [1683.] (1) Mortgage when redeemable. Sir Robert Howard, by a settlement in the family, being tenant for life, with remainder to Henry his first son, sold the lands in question to the defendant; afterwards 2 FREEMAN, 87, THEXTON V. BETTS 1075 he dying, his son Henry defeated the said purchase by virtue of the said settlement, and in the year 1670 mortgageth the same to the defendant for five hundred pounds, and then settles the same upon his wife, the plaintiff, for an addition to her jointure voluntarily; afterwards the said Henry Howard takes up five hundred pounds more of the defendant, and in the deed the proviso is, that if he or the heirs male of his body should pay, &c., then to be void ; and a covenant that no person should redeem but he and the heirs male of his body, and covenanted likewise that the money should be paid prout. Henry Howard dies without issue male, and the plaintiff being his widow, and intitling herself by virtue of the said deed of settlement, preferred her bill to redeem ; and a redemption being decreed by the Lord Chancellor Finch, the cause was now reheard. On the defendant's part it was insisted, that here being exclusive words, no person excluded by them should redeem; [87] for the mortgagor being master of his own estate might part with it upon what terms he pleased ; and here it did plainly appear that his intent was, that no person but himself and the heirs male of his body should redeem. But the Lord Keeper confirmed the decree; for it being a security for money once, and there being a covenant to pay the money, by which covenant the mortgagor and his executors were perpetually obliged, and besides there being no consideration paid for this exclusive covenant, he decreed a redemption according to the former decree ; but seemed to be of opinion, that if there had been any particular agreement, and a consideration paid, those exclusive words might have been effectual; but others were of opinion to the contrary ; for once a mortgage and always redeemable, and no negative words shall exclude the mortgagor. (2) And it was compared to a distress for rent, that although there be a covenant in the deed, that if the rent be behind, the party may distrain and hold the distress irreplevisable, that notwithstanding the party may replevy. But a case was cited by Mr. Solicitor in the House of Lords, that where a man made a purchase, and an agreement was made between the vendor and vendee, that in case the purchase money were repaid within seven years, that he would reconvey, there if the money be not repaid in the seven years, the party is not bound afterwards to reconvey, there being no interest to be paid, nor any covenant to pay the money.(3) (1) S. C. 2 Cha. Ca. 147 ; 1 Vern. 33, 190 ; 1 Eq. Ca. Ab. 312. (2) Ante, c. 81, p. 70...
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......They referred to Moses v. Lew (3 Y. & C. 359); Stroughill v. Anstey (1 De G. M. & G. 635); Devaynes v. Robinson (24 Beav. 86); Ball v. Harris (8 Sim. 485 ; 4 My. & C. 264). Mr. Elmsley, in reply. May 25. the lord chancellor. The question on this appeal is, whether the sum of 1270, 13s. 7d. ......
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Preliminary sections
...169, 171 House – Donoghue v. Stevenson (1932) A.C. 562…………………..............................................462 Howard v. Harris (1683) 1 Vern 190. ………...................................................................….……..350 Howard v. Pickford Tool Co. Limited (1951) 1 K.B. 417, 421.………........
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Table of Cases
...169, 171 House – Donoghue v. Stevenson (1932) A.C. 562…………………..............................................462 Howard v. Harris (1683) 1 Vern 190. ………...................................................................….……..350 Howard v. Pickford Tool Co. Limited (1951) 1 K.B. 417, 421.………........