Mackreth v Symmons
| Jurisdiction | England & Wales |
| Judgment Date | 18 August 1532 |
| Date | 18 August 1532 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 778
HIGH COURT OF CHANCERY
S. C. 2 Wh. & T. L. C. (7th ed.) 926. See Cood v. Pollard, 1822, 10 Price, 110; Selby v. Selby, 1828, 4 Russ. 338; Wythe v. Henniker, 1833, 2 My. & K. 646; Sproule v. Prior, 1836, 8 Sim. 192; Buckland v. Pocknell, 1843, 13 Sim. 410; Rice v. Rice, 1854, 2 Drew. 80; Wythes v. Lee, 1855, 25 L. J. Ch. 181.
START [329] mackreth v. symmons. May 13th, Uth, Nov. 26th, 1808. [S. C. 2 Wh. & T. L. C. (7th ed.) 926. See Good v. Pollard, 1822, 10 Price, 110; Selby v. Selby, 1828, 4 Russ. 338 ; Wythe v. Henniker, 1833, 2 My. & K. G46 ; Sproule v. Prior, 1836, 8 Sim. 192 ; Buckland v. Pocknell, 1843, 13 Sim. 410 ; Rice v. Rice, 1854, 2 Drew. 80 ; Wythes v. Lee, 1855, 25 L. J. Ch. 181.] Vendor's lien for purchase-money unpaid against the vendee, volunteers, and purchasers with notice, or having equitable interests only, claiming under him ; unless clearly relinquished ; of which another security taken, and relied on, may be evidence ; according to the circumstances ; the nature of the security, &c. : the proof being upon the purchaser ; and failing in part, upon the circumstances, another security being relied on, may prevail as to the residue. As to marshalling the assets of the vendee by throwing the lien upon the estate, Queers. The Bill stated, that in the years 1783 and 1784 the Plaintiff was indebted to John Manners in several sums, amounting in the whole to £13,500 ; for which sums John Martindale, as surety, joined the Plaintiff in bonds. In 1790 Martin-dale, having upon a settlement of accounts with the Plaintiff in 1785 taken credit for payment to Manners of £3000 undertook to discharge the remaining £10,500 ; and they settled an account accordingly. Other accounts were afterwards settled between them : the last in February 1792 ; upon which a balance of £54,000 was due to Martindale, including £10,393, 17s. the value of annuities, granted by the Plaintiff ; against which Martindale agreed to indemnify the Plaintiff in consideration of the Plaintiff's agreeing to pay him the amount. A bond for £20,000 15 VES. JUN. 330. MACKRETH V. SYMMONS 779 was given accordingly : and a mortgage in fee was executed by the Plaintiff to Martindale for the balance of £54,000. By indentures of lease and release, dated the 30th and 31st of October 1793, reciting an agreement by the Plaintiff to sell the reversion of the mortgaged estates to Martindale, which was valued at £60,000 composed of the principal and interest, due upon the mortgage, those estates were conveyed to Henry Martindale and his heirs, to the use of the Plaintiff for life ; with remainder to John Martindale in fee. The Bill farther stated, that John Martindale did not, according to his undertaking, pay the sum of £13,500 [330] to Manners, nor the value of the annuities ; which sums constituted part of the consideration for his purchase of the reversion of the estate. In September 1797, a Commission of Bankruptcy issued against him ; under which Manner s's representatives proved the debt upon the bonds ; and received dividends : the Plaintiff being obliged to pay remainder of the debt on account of those bonds; being £14,128, 3s. 3d. besides costs, and several sums on account of the annuities. John Martindale before his bankruptcy had contracted to execute a mortgage to the Defendant of the reversion, comprised in the indentures of 1793 ; and the Plaintiff claiming a lien upon the estate for the payments he had made in consequence of Martindale's failure to fulfil his engagements, gave notice to the assignees under the Commission. In 1798 Symmons obtained a Decree, that the assignees should execute a mortgage of the reversion to him, expressly without prejudice to the Plaintiff's claim ; and afterwards filed a Bill of foreclosure against the assignees ; and obtained a Decree ; Mackreth not being a party to that suit. The legal estate was vested in Coutts, as a trustee under a conveyance by Mackreth and Martindale in 1793, to secure annuities of £2000. The Bill, filed by Mackreth, prayed a declaration, that the Plaintiff has a lien upon the reversion of the estates, sold to Martindale, and mortgaged to Symmons, for the payments he had been obliged to make, and those sums, which he may hereafter pay in respect of the annuities, &c. The Defendant Symmons by his answer denied, that he had any notice, prior to his entering into the agreement with Martindale, that the Plaintiff had not received full consideration ; and submitted, that he had no lien. [331] Sir Samuel Romilly and Mr. Wriottesley, for the Plaintiff. The equitable lien of a vendor upon the estate sold for the purchase-money, as against the vendee, and even though a bond was taken, is established by a great number of cases, from Chapman v. Tanner (1 Vern. 267), to Nairn v. Prowse (G Ves. 752). In Austen v. Halsey (6 Ves. 475 ; see 483) your Lordship considered it as clearly settled ; except where upon the contract evidently the lien by implication was not intended ; and the case of Hughes v. Kearney (1 Schoales & Le Froy, 132) is another direct authority : Lord Redesdale laying down as a very clear rule, that in all cases the vendor has the lien ; and that it lies upon the purchaser to shew a special agreement, excluding it : that case being decided upon that ground. It cannot be admitted certainly against a purchaser for valuable consideration without notice : but this Defendant has not that character ; having merely an equitable agreement for a security, not performed, when Martindale became a bankrupt: the Plaintiff giving notice to the assignees : and the Decree, obtained by the Defendant Symmons for a mortgage to him, expressing, that it was without prejudice to the claim of this Plaintiff. Certainly a former debt is sufficient to sustain a purchase, as for a valuable consideration : but it is necessary, that a party, taking a conveyance for such a consideration, should not have had notice of the claim, when he took the conveyance. There are but two periods, to which the point of notice can apply : first, the time, when the consideration was advanced : secondly, when the conveyance was executed ; and even where a consideration has actually passed, it is necessary to state in pleading, that there was no notice at either period : other wise the pur-[332]-cnaser cannot protect himself : Wigg v. Wigg (1 Atk. 382). In this case it is essential, that there should not have been notice at the latter period ; before which notice is clearly established. The estate was never properly out of the hands of the Plaintiff. He had not taken a security, carved out by himself ; which might preclude the equitable lien he once had; which therefore still remains. From the nature of this transaction, the consideration being a former debt, no 780 MACKRETH V. SYMMONS 15 YES, JUN. 333, money actually passing, no such hardship can arise from enforcing the lien as in the case of a purchaser for valuable consideration, actually paid in that transaction ; who is affected by notice. If however this Defendant is to be considered as a purchaser for valuable consideration without notice, so that the lien cannot prevail against him, the Plaintiff is entitled to consider him as only a mortgagee ; having contracted with Martindale, as against whom the lien is good, for a mortgage. This Plaintiff therefore cannot be affected by the Decree for a foreclosure, obtained by this Defendant; who. having notice of the Plaintiff's claim, did not make him a party, Mr! Richards, Mr. Alexander, and Mr. William Agar, for the Defendant. There is nothing in the circumstances of this case, depriving this Defendant of the protection, due to a purchaser for valuable consideration without notice : his transaction with Martindale being perfectly fair : the vendor claiming a preference by way of lien for the purchase money, remaining unpaid ; as an equitable charge, prior in time : though he took the security of Martindale to that extent. Under such circumstances [333] the lien has never been established : nor can the inference, necessary to maintain it, be collected either upon principle or authority. The general case of lien, as between vendor and vendee, is admitted ; where there is no special agreement : no security taken in respect of the purchase-money : but this Equity has not been carried beyond that simple case of vendor and vendee. In the case of Chapman v. Tanner (1 Vern. 267. See 6 Ves. 757; Amb. 726) there was a special agreement : the title-deeds were kept by the vendor : a deposit of the title-deeds of itself amounting to an equitable charge. Other cases, besides those, which have been mentioned, in which this point arose either directly, or incidentally, are Bond v. Kent (2 Vern. 281) ; the case of a mortgage of the purchased estate for part of the money, and a note for the remainder. Pollexfen v. Moore (3 Atk. 272); a very perplexed case, often cited: Fawell v. Heelis (Amb. 724; 1 Bro. C. 0/3d edit. *422, note; 2 Dick. 485) : Blackburn v. Gregson (1 Bro. C. C. 420); which is merely the opinion of Lord Loughborough ; who desired to have the point farther considered : Trimmer v. Bayne (9 Ves. 209). The result of all of them is, that, where a security is given, there is no place for this Equity : the purchaser certainly having to shew, that it does not exist. Here a bond was given by Martindale : the security stipulated between the parties ; and therefore the lien, substituted by Equity, where there is no stipulation for a particular security, cannot be raised. Sir Samuel Romilly, in Reply. The Plaintiff being called upon, and obliged to pay, the debt, against which Martindale undertook to indem-[334]-nify him, that undertaking forming the consideration of...
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