A P Holroyd and Others v J G Marshall and Others
| Jurisdiction | England & Wales |
| Judgment Date | 04 August 1862 |
| Date | 04 August 1862 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 999
House of Lords
Mews' Dig. i. 826; ii. 1727, 1821, 1823; xiv. 1596; xv. 1794. S.C. 33 L.J.Ch. 193; 9 Jur. N.S. 213; 7 L.T. 172; 11 W.R. 171; and, below, 2 Giff. 382; 2 De G. F. and J. 596. On point as to equitable assignment of future acquired property discussed in numerous cases, e.g. Lazarus v. Andrade, 1880, 5 C.P.D. 320; Collyer v. Isaacs, 1881, 19 Ch. D. 349; In re D'Epineuil, Tadman v. D'Epineuil, 1882, 20 Ch. D. 758; Clements v. Matthews, 1883, 11 Q.B.D. 814; Tailby v. Official Receiver, 1888, 13 A.C. 523. Cited arg. in Danubian Sugar Factories, Lim. v. Inland Revenue Commissioners, 1901, 70 L.J. Q.B. 213.
Mortgage of present and future property - Novus actus - Judgment Creditor - Costs.
lait ò i'fsui. a .C. /3. HOLROYD V. ISRSHlLli 861-62] X H.L.C., 191 /fj8. /. ?*.ò?ò?ò*-. [191] A. P. HOLROYD and Qthem.-iAppellamts; J. G. MARSHALL and Others,- Respondents [June 14, 17,18,1861; July 25, August 4, 1862]. [Mews' Dig. i. 826; ii. 1727,1821,1823; xiv. 1596; xv. 1794. S.C. 33 L.J.Ch. 193; 9 Jur. N.S. 213; 7 L.T. 172; 11 W.R. 171; and, below, 2 Giff. 382; 2 De G. F. and J. 596. On point as to equitable assignment of future acquired property discussed in numerous cases, e.g. Lazarus v. Andrade, 1880, £òò C.P.D. 320; Collyer v. Isaacs, 1881, 19 Ch. D. 349; In re VEpineuil, Tadman v. D'Epineuil, 1882, 20 Ch. D. 758; Clements v. Matthews, 1883, 11 Q.B.D. 814; TaMy v. Official Receiver, 1888, 13 A.C. 523. Cited arg. in Danubian Sugar Factories, Lim. v. Inland Revenue Commissioners, 1901, 70 L.J. Q.B. 213.] Mortgage of present and future property-Novus actus-Judgment Creditor-Costs. In equity it is not necessary for the alienation of existing property that there should be a formal deed of conveyance. A contract to transfer the property, given for valuable consideration, provided it is capable of being the subject of a decree for specific performance, passes it at once, and the vendor becomes a trustee for the vendee. This rule applies to personal property, as well as to real estate. , Such a contract, if made with respect to the sale or mortgage of future acquired property, being capable of specific performance, transfers the beneficial interest in the property, as soon as it is acquired, to the vendee or mortgagee, who may have an injunction to restrain its removal. JT. was the owner of certain machinery in a mill; it was purchased by H., but not removeoT, and_T. continued in possession. T. executed a deed (which was duly registered), by which it was declared that the machinery was the property of H.-thatJT. desired to repurchase it for £5000, but had not the money to pay "for it, wherefore it was conveyed to JB. in trust when T. should pay the money to transfer it to him, and if he did not pay the money to hold it absolutely for H. The deed contained a covenant by T. to insure the machinery, and another covenant that all the machinery which, during the continuance of the deed should be placed in the mill in addition to, or substitution for, the original machinery, should be subject to the same trusts. T. sold some of the original machinery, purchased new machinery, and sent to H. accounts of these sales and purchases, but nothing was done by or on behalf of H. to take possession of the newly purchased machinery. On the 2d April 1860, H. served T. with notice of a demand for payment of the £5000. An execution against- T. was afterwards put in by a creditor: Held, reversing the decree below, that though there had been no novus actus interveniens, the title of H. was preferable to that of the execution creditor, as to the new as well as the old machinery. Mogg v. Baker, 3 Mee. and Wels. 195, commented on. The costs below ordered to be paid to the Appellants. James Taylor carried on the business of a damask manufacturer at Hayes Mill, Ovenden, near Halifax, in the county of York. In 1858 he became embarrassed, a [192] sale of his effects by auction took place, and the Holroyds, who had previously employed him in the way of his business, purchased all the machinery at the mill. The machinery was not removed, and it was agreed that Taylor should buy it back for £5000. An indenture, dated the 20th September 1858, was executed, to which A. P. and W. Holroyd were parties of the first part, James Taylor of the second part, and Isaac Brunt of the third part. This indenture declared the " machinery, implements, and things specified in the schedule hereunder written and fixed in the said mill," to belong to the Holroyds; that Taylor had agreed to purchase the same for £5000, but could not then pay the purchase-money, wherefore it was agreed, etc. that " all the machinery, implements, and things specified in the schedule (herein^ after designated the said premises) " were assigned to Brunt, in trust for Taylor, until a certain demand for payment should be made upon him, and then, in case he should pay to the Holroyds a sum of £5000, with interest, for him absolutely. If 999 X H.L.C., 193 HOLROYD V. MARSHALL [1861-62] default in payment was made, Brunt was to hare power to sell, and hold the monies, in pursuance of the trust for sale, upon trust, to pay off the Holroyds, and to pay the surplus, if any, to Taylor. The indenture, in addition to a clause binding Taylor, during the continuance of the trust, to insure to the extent of £5000 contained the following covenant: " That all machinery, implements, and things which, during the continuance of this security, shall be fixed or placed in or about the said mill, buildings, and appurtenances, in addition to or substitution for the said premises, or any part thereof, shall, during such continuance as aforesaid, be subject to the trusts, powers, provisoes, and declarations hereinbefore declared and expressed concerning the said premises; and that the said James Taylor, his execu-[193]-tors, etc., will at all times, during such continuance as aforesaid, at the request, etc. of the said Holroyds, their executors, etc., do all necessary acts for assuring such added or substituted machinery, implements, and things, so that the same may become vested accordingly." The deed was, four days afterwards, duly registered, as a bill of sale, under the 17 and 18 Viet. c. 36. Taylor, who remained in possession, sold and exchanged some of the old machinery, and introduced some new machinery, of which he rendered an account to the Holroyds before April 1860; but no conveyance was made of this new machinery to them, nor was any act done by them, or on their behalf, to constitute a formal taking of possession of the added machinery. On the 2d April 1860 the Holroyds served Taylor with a demand for payment of the £5000 and interest, and no payment being made, they, on the 30th April, took possession of the machinery, and advertised it for sale by auction on the 21st May following. On the 13th April 1860 Emil Preller sued out a writ of scire facias against Taylor for the sum of £155 18s. 4d., damages and costs, which was executed on the following day by James Davis, an officer of Mr. Garth Marshall, then high sheriff of York. On the 10th May 1860 a similar writ, for £138 3s. 3d., was executed by Davis, and on the 25th May 1860 the property was sold by the sheriff. Notice was given to the sheriff of the bill of sale executed in favour of the Holroyds. The only part of the machinery claimed by the execution creditors consisted of those things which had been purchased by Taylor since the date of the bill of sale. The sheriff insisted on taking under the writs these added articles, and the Holroyds, on the 30th May 1860, filed their bill against the sheriff, and the other necessary [194] parties, praying for an assessment of damages and general relief. The cause was heard before Vice Chancellor Stuart, who, on 27th July 1860, made an order, declaring that the whole machinery in the mill, including the added and substituted articles, at the time of the execution, vested in the Plaintiffs by virtue of the bill of sale. On, appeal, before Lord Chancellor Campbell, on the 22d December 1860, the Vice. Chancellor's order was reversed.* This present appeal was then brought. * In the course of his judgment Lord Chancellor Campbell said, " Upon this state of facts the Plaintiff's counsel have strenuously contended before me, that they, under their equitable title, are to be preferred to the judgment creditor. Mr. Malins drew a legitimate consequence from this doctrine, that although the sheriff would be excused, if before the claim of the assignee he had seized and sold the goods and paid over the proceeds to the judgment creditor, the equitable assignees might still follow the proceeds in the hands of the judgment creditor, and maintain an action against him for money had and received, to recover the amount. But I am of opinion that, notwithstanding the equitable title of the Plaintiffs to this property, as they had not perfected their title to it by any intervening act before possession taken under the execution, the judgment creditor is to be preferred. Till possession taken by the Plaintiffs, they had only jus ad rem, the property remained in the judgment debtor, and the machinery was part of his goods and chattels liable to be taken under the fieri facias. My judgment rests upon Lord Bacon's maxim, 'Licet dispositio de interesse futuro sit inutUis, tamen fieri, potest declaratio prcecedens quce sortiatur effectum, interveniente novo actu.' Before any subsequent act is done, the assignment gives an equitable interest as between assignee and assignor; but a legal interest subsequently, bona fide acquired before possession taken by the equitable assignee shall prevail. A bill of sale in this form, as far as non-existing goods are concerned, is only executory. If the right of the equitable assignee, who has not taken possession, were such as Mr. Malins contends for, it does seem...
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