Maugham v Sharpe and another
| Jurisdiction | England & Wales |
| Judgment Date | 01 June 1864 |
| Date | 01 June 1864 |
| Court | Court of Common Pleas |
English Reports Citation: 144 E.R. 179
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 34 L. J. C. P. 19; 10 L. T. 870; 10 Jur. N. S. 989; 12 W. R. 1057. Referred to, Reeves v. Watts, 1866, L. R, 1 Q, B. 416 ; Ramsden v. Lupton, 1873, L. R. 9 Q. B. 31; Simmons v. Woodward, [1893] A. C. 105; Johnson v. Diprose, [1893] 1 Q. B. 517; Gilligan v. National Bank, 11901] 2 L. R. 540. Followed, Wray v. Wray, [1905] 2 Ch. 349.
maugham v. sharpe and another. June 1st, 1804. [S. C. 34 L. J. C. P. 19 ; 10 L. T. 870 ; 10 Jur. N. S. 989 ; 12 W. E. 1057. Referred to, Reeves v. Watts, 1866, L. E, 1 Q, B. 416 ; lUimsden v. Lu.pton, 1873, L. It. 9 Q. B. 31; Simmons v. Woodward, [1893] A. C. 105; Johnson v. Dijn'ose, [1893] 1 Q. B. 517; Gilligim v. National 'Rank, 11901] 2 I. K. 540. Followed, IVvwj v. fTray, [1905] 2 Oh. 349.] 1. A., in consideration of an advance of 6501. made to him by B. and C., who carried on business under the name of "The City Investment and Advance Company," by deed in the form of a mortgage assigned to them all the goods, chattels, and effects upon his farm and premises, to secure the re-payment of the advance, with power to the mortgagees, on default, to sell at their discretion and to pay over the surplus to A. B. and C. took possession under this deed (which was not registered under the Bills of Hale Act), and sold the goods by auction.-D. after B. and C had taken possession entered under a subsequent bill of sale (duly registered), and paid out a claim of the landlord for rent:-Held, that B. and C. having perfected their title by taking possession under their mortgage, had a right to sell; and that they were not responsible to D. for any default in the mode of conducting the sale.-2. Held also, that D. could not recover against B. and C. the sum paid by him to the landlord, as money paid to their use.-3. Held also, that the conveyance of the goods to "The City Investment and Advance Company," enured as a conveyance to B. and C., so soon as it was ascertained that they were the persons who carried on business under that name. This was an action substantially for misconducting a sale of goods. The first count waa for the conversion of certain goods and chattels, and the second for money received by the defendants to the plaintiffs use. The third count stated that, by indenture bearing date the '2nd of February, 1864, made between one William Dolby of the one part, and the plaintiff of the other part, andj duly registered under the Bills of Sale Act (17 & 18 Viet. c. 36), the said William Dajby did grant, bargain, sell, and assign to the plaintiff all the goods, farming-stock, growing crops,; agricultural implements, live and dead stock, and every other article which then were in or about a certain farm called the Horse Grove, at Eotherfield, and more fully set forth in the schedule to the said indenture, for the purpose [444] of securing to the plaintiff the re-payment of the sum of 6501. then advanced by him to the said William Dolby, which said sum was at the time of the committing of the grievances thereinafter mentioned, and still remained, due and unpaid,-of all which the defendants had notice : that the defendants claimed to have a charge or lien upon the said goods, chattels, and effects, as a security for an alleged debt due to them from the said William Dolby, and to have a power to sell the said goods, chattels, and effects to satisfy their said debt: and that thereupon, and whilst the said indenture continued in full force and effect, and the said sum of 6501. so advanced as aforesaid remained due and unpaid, the defendants proceeded to sell and dispose of the said goods, chattels, and effects granted and assigned to the plaintiff as aforesaid, on 130 MAUGHAM V. SHARPE 17 C. B. Of. S.) 145. pretence of satisfying the said alleged debt due to them from the said William Dolby as aforesaid; and that thereupon it became and was the duty of the defendants to use all reasonable care and diligence in and about selling and disposing of the said goods, chattels, and effects, and in and about preventing a, sale thereof at an under-value : Breach, that the defendants did not use reasonable or any care or diligence in and about selling and disposing of the said goods and effects, or in and about preventing a sale thereof at an under-value, but so carelessly and negligently conducted themselves in the premises that the said goods, chattels, and effects were sold at an under-value, and for prices grossly insufficient and inadequate, arid not more than sufficient to satisfy the defendants' said debt, although the defendants ought to and might have obtained for the same a much larger sum, and sufficient not only to satisfy the said alleged debt, but also to leave a large balance towards the satisfaction of the sum of 6501. so due and owing to the plaintiff as afore-[445]-said; whereby and by reason of the premises the plaintiff was altogether deprived of the benefit of his said security and of the said indenture. To this count the defendants pleaded,-fourthly, a traverse of the assignment of the goods by William Dolby to the plaintiff', - -fifthly, that, before atid at the time of the making of the said indenture, and thence until and at the time of the alleged sale and disposal of the said goods, farming-stock, growing crops, agricultural implements, live and dead stock, and other articles, the same respectively were the goods of and belonging to the defendants, and at the time of the said indenture the same were not, nor were any of them, the goods of, nor did they or any of them belong to, the said William Dolby, nor had the said William Dolby at that time the power to grant, bargain, sell, or assign the same, or any of them, and that the defendants sold and disposed of the same as in the third count mentioned, in their own right. Issue thereon. The cause was tried before Erie, C. J., at the last Spring Assizes for the county of Surrey. The facts which appeared in evidence were as follows:-On the 10th of December, 1863, Dolby, who occupied a farm at Rotherfield, in the county of Sussex, obtained an advance of 4001. from the defendants, who carried on business in London under the name of the City Investment and Advance Company, upon the security of an assignment of all his farming-stock and effects, which was in the following form :- " Thia indenture made the 10th day of December, 186i), between William Dolby, of Horse Grove, Rotherfield, in the county of Sussex, farmer, hereinafter called the mortgagor, of the one part, and the City Investment and Advance Company, of No. 25 Cannon Street, in the city of London, hereinafter called the mortgagees, of the other part: Whereas, the said mort-[446]-gagor, being desirous of borrowing the sum of 4001., hath applied to the said mortgagees to lend him the same, which they have agreed to do upon having such security as hath already or may hereafter be given by guarantie or otherwise : And whereas the said mortgagees, in pursuance of this agreement, have this day lent to the said mortgagor the said sum of 4001., which is hereafter called ' the said loan,' the receipt whereof the said mortgagor doth hereby admit and acknowledge : Now this indenture witnesseth that, in consideration of the said loan, he the said mortgagor' hath bargained, sold, assigned, and transferred, and by these presents doth bargain, sell, assign, and transfer unto the said mortgagees, their executors, administrators, and assigns, all and singular the household furniture, books, plate, linen, live-stock, implements, crops, goods, chattels, effects, arid things of him the said mortgagor, now being in or upon the house, premises, and lands situate at Horse Grove, Rotherfield, aforesaid, now occupied by him the said mortgagor, and also all other goods, chattels, and effects of the said mortgagor- in and about the aforesaid house arid premises, or which may hereafter come into or upon any part of the aforesaid house and premises, either in substitution or otherwise, during the time any money may be due from the said mortgagor1, his executors, administrators, or assigns, under or by virtue of these presents, to have and to hold the said goods, fixtures, arid effects hereby assigned or interrderl so to be, unto the sjiid mortgagees, their executors, administrators^ and assigns, as their own proper goods, chattels, fixtures, and effects : Provided that; in case the said mortgagor, his executors, administrators, or assigns, shall pay the sum of 501., on the 10th of January, 1864, 1001. on the 10th of February, 1864, 1001. on the 10th of March, 1864, 1001. on the 10th of April, 1864, and 501. on the 10th [447] of May, 1864 next, or on such further or extended day or days to be agreed on by the said mortgagees at the request of the said mortgagor, or earlier than 17 C. B. (M. S.) 448. MAUGHAM V. SHARPE 181 either such days if by the said mortgagees, thoir executors, administrators, or assigns, demanded,--then these presents and every part thereof shall cease, determine, and be void, except as to the rights and remedies of the said mortgagees for1 any...
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