Jolly v Arbuthnot
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1859 |
| Date | 26 May 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 87
BEFORE THE LORD CHANCELLOR LORD CHELMSFORD
S. C. 26 Beav. 283; 32 L. T. (O. S.), 327; 33 L. T. (O. S.), 263; 5 Jur. (N. S), 80, 689; 28 L. J. Ch. 274, 547. Distinguished, Attorney-General v. Bunce, 1868, L. R. 6 Eq. 575. See Morton v. Woods, 1868-69, L. R. 3 Q. B. 668; L. R. 4 Q. B. 303; Ex parte Hill, 1877, 6 Ch. D. 69; In re Threlfall, 1880, 16 Ch. D. 279; Kearsley v. Philips, 1883, 11 Q. B. D. 625.
[224] jolly . arbuthnot. Before the Lord Chancellor Lord Chelmsford May 4, 5, 26,1859. [S. C. 26 Beav. 283 ; 32 L. T. (0. S.), 327 ; 33 L. T. (0. S.), 263 ; 5 Jur. (N. S), 80, 689 ; 28 L. J. Ch. 274, 547. Distinguished, Attorney-General v. Sunce, 1868, L. R. 6 Eq. 575. See Morton v. Woods, 1868-69, L. R. 3 Q. B. 668; L. R. 4 Q. B. 303; Ex parte Hill, 1877, 6 Ch. D. 69; In re Threlfatt, 1880, 16 Ch. D. 279; Kearsley v. Philips, 1883, 11 Q. B. D. 625.] By a receivership deed executed contemporaneously with a mortgage in fee, which it recited, the mortgagor and mortgagee appointed a receiver, and constituted him their agent and attorney to receive the rents of the mortgaged property, and to use auch remedies by way of entry and distress as should be requisite for that purpose. By the same deed the mortgagor attorned as tenant from year to year to the receiver, and there was a proviso, that if default should be made in payment of the mortgage-money, or interest, at the times appointed, the mortgagee might enter and avoid the tenancy created by the attornment. There was also a proviso, that nothing therein contained should lessen the rights, powers or remedies of the mortgagee under the mortgage. On the mortgagor being found bankrupt: Held, that the relation of landlord and tenant had been created between the receiver and mortgagor by the receivership deed, and that the receiver was entitled to distrain and take the goods which had belonged to the mortgagor on the mortgaged premises. A receiver distrained under a power accompanying a mortgage, and-the mortgagor being bankrupt, and the proceeds of the distress having been invested, by arrangement in the names of trustees, to abide the decision of the Court on the rights of the parties-the mortgagee filed a bill against the assignees, and against other Defendants who held a bill of sale on the goods taken under the distress, but who by their answer denied that they disputed the Plaintiff's right to the proceeds, and who disclaimed all interest in them. Held, that a decree might be made declaring the assignees entitled to the property, and that the disclaiming Defendants were not entitled to an inquiry as to the relative rights of themselves and their Co-defendants, the assignees. This was an appeal from the decision of the Master of the Rolls. The question arose upon a deed dated the 12th of October 1855, under which the Plaintiff claimed the benefit of a distress for £3500 which was made on the goods of Colonel William Petrie Waugh on the 28th of April 1857, he having become bankrupt on the 15th of April 1857. The money produced by the sale of the distress had been, by the consent of all parties, paid into a bank to abide the decision of the Court. The bankrupt Colonel Waugh was the owner of Branksea Island and Castle, in Dorsetshire. The Plaintiff was mortgagee of this property. It had been previously mortgaged to other persons, but the Plaintiff paid off the prior mortgages; and on the 12th of October 1855 all the mortgages, amounting to .£30,000, were [225] vested in him. By an indenture of that date, the island, castle, lands, tenements, hereditaments and premises were granted and released to the use of the Plaintiff, his heirs and assigns for ever, subject to a proviso for redemption on payment by Colonel 88 JOLLY 'I'. ARBUTHNOT ' 4 DECk&J.226. Waugh, his heirs, executors, administrators or assigns, to the Plaintiff, his executors, administrators or assigns, of £30,000, oil the 12th of October 1856, with interest at £5 per cent. An indenture, bearing even date with the last-mentioned indenture, was made between Colonel Waugh of the first part, the Plaintiff of the second part, Weston Aplin, a Defendant, of the third part, aud William Carey Fanlkuer and George Bonnor of the fourth part. It recited the mortgage for £30,000 to the Plaintiff, and the covenant for payment of the mortgage money, and then recited as follows:-" And whereas it has been agreed that, for securing the regular and punctual payment of the interest of the said sum of £30,000, and also for providing a fund for better securing the gradual repayment of the principal sum, the said Weston Aplin should be appointed receiver, with the powers and in the manner hereinafter mentioned, of the rents and profits of the hereditaments and premises comprised in the mortgage securities, and that these presents should contain such covenants, clauses and provisions as are hereinafter contained. And whereas the said hereditaments and premises are at present in the possession and occupation of the said William Petrie Waugh, and it hath been agreed that he shall attorn as tenant in respect of the same to the said Weston Aplin at one entire yearly rent of £3500, part of which, that is to say £1500, is intended to be by way of securing the punctual payment of the interest on the said mortgage debt, and £2000, the remaining part thereof, is intended to he applied in form-[226]-ing a fund for the ultimate discharge of the principal sum of £30,000, in manner hereinafter expressed." The witnessing part was as follows :-" Now this indenture witnesseth, that, in pursuance of the agreement, the said William Petrie Waugh and John Jolly do and each of them doth hereby depute, constitute and appoint Weston Aplin to be receiver, agent and attorney of William Petrie Waugh and John Jolly, and each of them, in the name or names of them or either of them, or otherwise, to ask, demand or receive of and from all the present and future tenants aud occupiers of the said island, castle, lands, tenements and hereditaments mentioned in the schedules to these presents, all the yearly and other rents, royalties, issues and profits now due and hereafter to become due for or in respect of the same premises, and in default of payment thereof to use and exercise all such remedies by entry, distress or otherwise howsoever, and generally to do and perform all such other acts as shall be requisite or expedient for the receiving and recovery of the rents, royalties, issues and profits." The deed also witnessed, that Colonel Waugh thereby attorned and became tenant from year to year to Mr. Aplin of such parts of the island, castle, messuages or tenements, hereditaments and premises, with the buildings and other appurtenances, as were then held and occupied by Colonel Waugh at the yearly rent of £3500, by equal half-yearly payments, on the 12th of April and 12th of October in every year, with a proviso that if Colonel Waugh should duly pay and keep down the interest of the mortgage debt, the annual rent should be reduced to £2000. And it was declared that the rents, issues and profits, when received by Mr. Aplin, should be applied by him, in the first place, in payment of the expenses attending the receipt thereof, and, in the next place, in paying and satisfying to the Plaintiff, his executors, ad-[227]-ministrators or assigns, the interest to accrue due -in respect of the said sum of £30,000, or such part thereof as might from time to time remain due under the Plaintiff's security, and any sums which he or they should or might have paid for insuring the premises ; and, in the next place, in paying the surplus of such rents and profits which should remain after making the aforesaid payments, if the same should not exceed the annual sum of £2000, or if the same should exceed that amount then in paying thereout the annual sum of £2000 to William Carey Faulkner and George Bonnor, or the survivor of them, his executors, administrators or assigns, upon trust, when and as the same should be paid to them or him, to invest the same in the stocks or funds therein mentioned, and to stand possessed of such stocks or funds upon trust to receive the dividends to accrue thereon, and from time to time to invest the same by way of accumulation, and to stand possessed of the said accumulated fund, and the income thereof, upon trust for securing to the Plaintiff, his executors, administrators or assigns, the principal sum of £30,000, and the interest thereof, and for that purpose, at any time or times during the continuance of the said mortgage security, to sell any part of the accumulated fund, and pay the proceeds thereof to 4DEQ. tJ. MB. JOLLY V. ARBUTHNOT 89 him or thstnr in or towards payment or discharge of the said mortgage debt, and the interest thereof, and subject thereto to continue the said investments and accumulations until a sufficient fund should be raised for the payment of the said mortgage debt and interest, and all costs, charges and expenses relating thereto: provided, that when the accumulated fund should amount in value to the sum of £10,000 sterling, or to such a sum as should be equal in amount to the sum remaining due on the security, tie trustees should sell the same, and pay the proceeds thereof to the Plaintiff, his executors, administrators or assigns, who [228] should then be bound to accept the same as far as it would extend in payment and discharge of the mortgage debt, and the interest thereof, and subject thereto, as to any surplus or residue which might remain of the said fund or the proceeds thereof, upon trust for Colonel Waugh, his executors, administrators arid assigns. And the deed contained a proviso that it should not be lawful for Mr. Aplin or any future receiver to act in the execution of his office, unless or until default should be made in payment of the annual sum of £3500, or some part thereof, but that no such tenant or tenants, occupier or occupiers...
To continue reading
Request your trial
- Methani v Perianayagam
-
O'Farrell v Stephenson
...L. R. 7 C. P. 360. Great Western Railway Company v. Smith 2 Ch. Div. 235. Gaskell v. SpryENR 1 B. & Ald. 617 Jolly v. ArbuthnotENR 4 De G. & J. 224. Landlord and Tenant Condition in lease Clause against carrying on trade Forfeiture Action to recover possession Disclaimer by assignees in ban......
-
UMBC Finance Ltd and Another v Giffard Development Pte Ltd and Others
... ... In Jolly v Arbuthnot Lord Chelmsford LC said at pp 235-236: A mortgagor who remains in possession after the execution of a mortgage, and continues to enjoy ... ...
-
Croghan v Maffett
...Div. (1889 — M. No. 384.) CROGHAN and MAFFETT. Pitt v. SnowdenENR 3 Atk. 750. Bennett v. RobinsENR 5 C. & P. 379. Jolly v. ArbuthnotENR 4 De G. & J. 224. Morton v. WoodsELR L. R. 3 Q. B. 658; on appeal—L. R. 4 Q. B. 294. Prince v. NicholsonENR 5 Taunt. 333, 337. Distress — 9 & 10 Vict. c. 1......