Marryat v Marryat
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 1860 |
| Date | 02 March 1860 |
| Court | High Court of Chancery |
English Reports Citation: 54 E.R. 352
ROLLS COURT
S. C. 29 L. J. Ch. 665; 2 L. T. 531; 6 Jur. (N. S.) 572. See Saunders v. Milsome, 1866, L. R. 2 Eq. 575; Holland v. Holland, 1869, L. R. 4 Ch. 457; Jackson v. North-Eastern Railway Company, 1877, 7 Ch. D. 583.
352 MARHYAT V. MARRY AT 28BBAV.224. [224] marryat i: marryat. March 2, 1860. [S. C. '29 L. J. Ch. 665; 2 L. T. 531; 6 Jur. (N. S.) 572. See Saunters v. MUsomf., 1866, L. R. 2 Eq. 575; Holland v. Holland, 1869, L. R. 4 Ch. 457 ; Jackson v. North-Eastern Railway Company, 1877, 7 Ch. D. 583.] A debtor by simple contract executed a deed, in which he admitted the amount of his debt and secured it by an assignment of property to his creditor. The deed contained no covenant or agreement to pay. Held, that this deed did not make the debt a specialty. The question was, whether the claimant was entitled to rank as a specialty creditor against the estate of the intestate Samuel F. Marryat, or was a mere simple contract creditor ? It arose under these circumstances :- By indenture dated in 1852, and made between Marryat, the intestate, of the one part, and Hallett, a creditor, of the other part, which recited that Marryat was indebted to Hallett in the sum of 4441, 7s. Id. " as the said Marryat did thereby admit and acknowledge," and that Marryat was unable to pay it, and that Hallett had agreed to forbear enforcing payment, and that in consideration thereof Marryat had agreed to execute the assignment after mentioned, it was ivitnessed, [225] that Marryat assigned to Hallett certain property to which he was entitled under the wills of two relatives, upon trust to sell, and out of the money received, to retain the 4441, 7s. Id. and interest, and to stand possessed of the residue in trust for Marryat. The deed contained no covenant for the payment of the debt, but there were covenants for title and for further assurance only. Under the usual decree for the administration of Marryat's estate, the Chief Clerk found that 2805 was due for principal and interest under the deed, but that it was a simple contract debt. A summons was taken out to vary the certificate, by allowing the debt as a specialty debt. Mr. Selwyn and Mr. Collins. This constitutes a specialty debt. There is a clear acknowledgment of the amount of the debt in the deed given as a security, such an admission implies an obligation to pay, and whenever there is an obligation to pay, expressed or implied, to be collected from the...
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