Lord Ossulston contra Lord Yarmouth
| Jurisdiction | England & Wales |
| Date | 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 91 E.R. 388
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
Decem. 1707. In Canc.
[449] mortgages. 1. lord ossulston contra lord yarmouth. [Decem. 1707. In Cane.] Fide 1 Chan. Gas. 2, 22, 59, 102, 166, 285. 2 Chan. Cas. 23, 29, 52, 97, 221, 206. Proviso, that future interest, if not paid, shall be taken as principal, and bear interest, is void. 1 Chan. Cas. 229, 52, 258. 2 Chan. Cas. 35, 59. Vide 2 Atk. 330. Treatise of Equity 119. The Earl of Yarmouth made a mortgage to my Lord Ossulston, with a proviso, that if the interest was behind six months, that then that interest should be accounted principal, and carry interest. Et per Cowper, Lard Chancellor, this clause was decreed to be vain, and of no use, saying, no precedent had ever carried the advance of interest so far, and that an agreement made at the time of the mortgage will not ba sufficient to make future interest principal; but, to make interest principal, it is requisite that interest be first grown due, and then an agreement concerning it may make it principal.
English Reports Citation: 91 E.R. 389
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
In Canc.
3. cope contra cope. [In Cane.] Where personal estate shall be applied to pay off mortgage in exoneration of land. S. C. Eq. Ab. 269, p. 2. Hardr. 512. 1 Chan. Gas. 81, 223, 271, 285, 286. 1 Chan. Rep. 98, 148, 183, 191. 2 Chan. Cas. 98, 165, 187, 221. 2 Chan. Hep. 274, 396. 3 Chan. Rep. 212, 213. Vern. 36, 37. If a man mortgage lands, and covenants to pay the money, and dies, the personal estate of the mortgagor shall, in favour of the heir, be applied to exonerate the mortgage: so it is, though there was no covenant, if the mortgagor had the money ; S 450] because it was his debt, and he is bound to make it good though the land be a efective security; but if grandfather mortgages and covenants to pay, and the lands descend to his son, and his son dies, having a personal estate and a son, the son's personal estate shall not go in aid of this mortgage. A. mortgages his land to B., and after sells it to C. for 10001., which includes the mortgage money; C. the purchaser shall pay the mortgage, for he has made it a debt in himself: but it is to be understood that this exoneration is not to be allowed, unless there be personal assets sufficient to pay all legacies; for the mortgage shall be paid out of the land if there be not personal...
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La Chausseur Beachettes Grenada Ltd v Lewis Colton John Thomas Defendants/Appellants v Eversley William Gittens Plaintiff/Respondent [ECSC]
... ... into principal bearing interest in its turn: Ossulston v. Yarmouth (1709) E.R. 388 ... Conway v. Shrimpton (1710) ... should be accounted principal and carry interest, the Lord Chancellor said: "the proviso is decreed ... ...
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Heir and Ancestor
...Money, and dies, the Personal Estate of the Mortgagor shall, in Favour of the Heir, be applied to exonerate the Mortgage. Cope and Cope, 2 Salk. 449, in Cane'. [270] 3. But if the Grandfather mortgages, and covenants to pay the Mortgage-Money, and the Lands descend to his Son, and his Son d......
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Hinton against Hinton
...performance even against the assignees of the seller, who is become bankrupt (see 13 Ves. 188); as Taylor v. Wheeler, 2 Vern. 564, and 2 Salk. 449. So against an heir at law.(3) Question. Whether the right of freebench is bound by this agreement 1 It was distinguished from the case of dower......
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Mortgages
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