A P Holroyd and Others v J G Marshall and Others
| Jurisdiction | England & Wales |
| Judgment Date | 22 December 1860 |
| Date | 22 December 1860 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 752
BEFORE THE LORD CHANCELLOR LORD CAMPBELL.
S. C. 2 Giff. 382; 6 Jur. (N. S.), 931; 29 L. J. Ch. 655; 3 L. T. 14; 7 Jur. (N. S.), 319; 30 L. J. Ch. 385; 33 L. J. Ch. 193; 9 Jur. (N. S.), 213; 7 L. T. 172; 11 W. R. 171; 10 H. L. C. 191; 11 E. R. 999. Distinguished, Thompson v. Cohen, 1872, L. R. 7 Q. B. 533. Considered, Greenbirt v. Smee, 1876, 35 L. T. 169. Followed, Leatham v. Amor, 1878, 47 L. J. Q. B. 581. See Ex parte Games, 1879, 12 Ch. D. 319; Baghott v. Norman, 1880, 41 L. T. 788; Lazarus v. Andrade, 1880, 5 C. P. D. 320. Distinguished, Collyer v. Isaacs, 1881, 19 Ch. D. 349; In re Count D'Epineuil, 1882, 20 Ch. D. 758. See Clements v. Matthews, 1883, 11 Q. B. D. 814; Ex parte Nichols, 1883, 22 Ch. D. 787. Distinguished, Reeves v. Barlow, 1884, 12 Q. B. D. 436. See Walker v. Bradford Old Bank, 1884, 12 Q. B. D. 516; Joseph v. Lyons, 1884, 15 Q. B. D. 285; Ross v. Army and Navy Hotel Company, 1886, 34 Ch. D. 50; Tailby v. Official Receiver, 1886-88, 17 Q. B. D. 92; 18 Q. B. D. 31; 13 App. Cas. 523. Distinguished, Harding v. Harding, 1886, 17 Q. B. D. 444. See In re Clarke, 1887, 35 Ch. D. 112; 36 Ch. D. 355. See Thomas v. Kelly, 1888, 13 App. Cas. 518; In re Pyle Works, 1890, 44 Ch. D. 557.
[596] holroyd v. marshall. Before the Lord Chancellor Lord Campbell. Dec. 8, 10, 22, 1860. [S. C. 2 Giff. 382; 6 Jur. (N. S.), 931; 29 L. J. Ch. 655 ; 3 L. T. 14; 7 Jur. (N. S.), 319; 30 L. J. Ch. 385; 33 L. J. Ch. 193; 9 Jur. (N. S.), 213; 7 L. T. 172; 11 W. R. 171 ; 10 H. L. C. 191 ; 11 E. R. 999. Distinguished, Thompson v. Gotten, 1872, L. R. 7 Q. B. 533. Considered, Greenbirt v. Smee, 1876, 35 L. T. 169. Followed, Leatham v. Amor, 1878, 47 L. J. Q. B. 581. See Exparte Games, 1879, 12 Ch. D. 319; Baghott v. Norman, 1880, 41 L. T. 788; Lazarus v. Andrade, 1880, 5 C. P. D. 320. Distinguished, Collyer v. Isaacs, 1881, 19 Ch. D. 349; In re Count D'Epimuil, 1882, 20 Ch. D. 758. See Clements v. Matthew*, 1883, 11 Q. B. D. 814 ; Ex parte Nichok, 1883, 22 Ch. D. 787. Distinguished, Reeves v. Barlow, 1884, 12 Q. B. D. 436. See Walker v. Bradford Old Bank, 1884, 12 Q. B. D. 516; Joseph v. Lyons, 1884, 15 Q. B. D. 285; Ross v. Army and Navy Hotel Company, 1886, 34 Ch. D. 50; Tailby v. Official Receiver, 1886-88, 17 Q. B. D. 92; 18 Q. B. D. 31 ; 13 App. Cas. 523. Distinguished, Harding v. Harding, 1886, 17 Q. B. D. 444. See In re Clarke, 1887, 35 Ch. D. 112; 36 Ch. D. 355. See Thomas v. Kelly, 1888, 13 App. Cas. 518; In re Pyle Works, 1890, 44 Ch. D. 557.] Where equitable assignees of chattels to be subsequently acquired had neglected to perfect their title to the chattels by any act tantamount to taking possession before the chattels were taken under an execution : Held, that the title of the execution creditor was to be preferred. This was an appeal from a decision of Vice-Chancellor Stuart, that the Plaintiffs, as equitable assignees by way of mortgage of machinery to be fixed or placed during the continuance of the security upon the mortgaged premises, was entitled to priority over a judgment creditor who had taken possession under an execution. James Taylor, a manufacturer of Hayes' Mill, near Halifax, had been employed by the Plaintiffs Messrs. Holroyd, stuff merchants of Leeds, to manufacture for them damask goods previously to his bankruptcy in September 1858. The machinery of his mill having been put up for sale by his assignees in bankruptcy, was purchased by Messrs. Holroyd, who were Plaintiffs. By an indenture dated the 20th September 1858, made between the Plaintiffs the Messrs. Holroyd of the first part, James Taylor of the second part, and Isaac Brunt, warehouseman of Leeds, a trustee, of the third part, after reciting that James Taylor was tenant of a mill, buildings and appurtenances, and that the machinery, implements, &c., specified in the schedule thereto were fixed or placed on [697] the premises and belonged to the Plaintiffs Holroyd absolutely; and that Taylor had agreed for the purchase of the said machinery, implements, &c., for 5000, but, being unable then to pay the purchase-money, it had been agreed that the same should be secured in manner thereinafter expressed : it was witnessed that the Plaintiffs Holroyd, by the direction of James Taylor, assigned to Isaac Brunt all the machinery, implements, &c., specified in the schedule thereto, upon trust for James Taylor, until demand of payment of the .5000 and interest, arid if he should pay to the Plaintiffs Holroyd the 5000 and interest, to James Taylor absolutely; but, in case of default in payment, upon trust to sell the said premises and apply the proceeds in satisfaction of the Plaintiffs' claim under their security. The deed contained a proviso that all the machinery, implements, &c., which, during the continuance of the security, should be fixed or placed on the premises in addition to or substitution for the machinery specified in the schedule, should, during the continuance of the security, be subject to the trusts thereby declared concerning the premises: and that Taylor would do all acts for assuring such added or substituted machinery accordingly. This deed was registered as a bill of sale. The Plaintiffs, the Messrs. Holroyd, becoming dissatisfied with Taylor's conduct, on the 2d April 1859 demanded payment, and on default, took or attempted to take a DB 0. F. 4 J. 898, HOLROYD V. MARSHALL 753 possession of all the machinery, implements, &c., in the mill, and with the consent of Brunt advertised them for sale by auction. It was alleged by Preller, the principal Defendant, who was an execution creditor of Taylor, that at the time of this attempt the Sheriff of Yorkshire was already [598] in possession under a fi. fa. issued by himself (Preller). Messrs. Holroyd, however, assumed to act as if they had actually taken possession of the machinery, and proceeded to a sale of the whole of the machinery, implements, &c., on the premises by auction. Their right to the machinery on the premises at the date of the deed was not disputed, but during the sale the sheriff took forcible possession of certain machinery, implements, &c., which had been added to and substituted for machinery specified in the schedule to the indenture by James Taylor since the execution of that indentura The bill was filed by the Messrs. Holroyd and Isaac Brunt against the sheriff and execution creditor, arid James Taylor, to restrain proceedings under thet/?. fa., and the question was as to the Plaintiffs' right to this added and substituted machinery. The evidence as to the question of priority of possession of the machinery, implements, &c., was conflicting. It is detailed in the report of the case below (2 Giff. 285-287), and is summed up in his Lordship's judgment. Mr. Malins and Mr. Youl, for the Plaintiffs. Property not yet acquired, or an interest in property which has not yet come into existence, is in this Court bound by assignment just as much as if it had been in the possession of the assignor at the date of the assignment; Douglas v. Russell (4 Sim. 524 ; 1 M. & K. 488); Curtis v. Auber (1 Jac. & W. 526); Lyde v. Mynn (1 Myl. & K. 683); Hobsm v. Trevor (2 P. Wms. 191); and the interest, when it comes into existence, will at once become subject to the contract; Metcalfe v. The Archbishop of York (6 Sim. 224 ; 1 Myl. & Cr. 547) Newlands v. Paynter (4 Myl. & C. 408); and the [699] same rule prevails at law; Cheddell v. Galsworthy (6 C. B. Eep. (N. S.), 471). The evidence shews that Taylor was in possession as agent for the Plaintiffs at the time of and prior to the levy by the sheriff. That being so, the Plaintiffs are clearly entitled to the priority claimed by them; Langton v. Hot-ton (1 Hare, 549); Brace v. The Duchess of Man-bm-ough (2 P. Wms. 491); Martindale v. Booth (3 B. & Ad. 498). Mr. Bacon and Mr. Wickens, for the sheriff'. Mr. Amphlett and Mr. Hobhouse, for the Defendant Preller. We do not questioh the proposition that the equitable charge is sufficient as between the assignor and the assignee to pass chattels afterwards coming into existence ; but we maintain that as against the judgment creditor the mortgagees have lost all right to priority by not taking possession before the/M.s tertii was perfected by the levy. That is the rule both in equity and at law; Congrew v. Emits (10 Exch. 298); Hope v. Hayley (5 Ell. & Bl. 830); Mogg v. Baker (3 Mee. & W. 195); Metcalfe v. Archbishop of York (6 Siiri. 224; 1 Myl. & Cr. 547); Whitworth v. Gewgaw, (1 Ph. 728); Newlaiuk v. Paynter (4 Myl. & Cr. 408); Taylor v. JVheeler (2 Salk. 449); Can- v. Allatt (27 L. J. Exeh. 385); Lunn v. Thwntm (1 C. B. 379); Langton v. Horton (1 Hare, 549). Though Taylor was in possession at the time of the levy, it was not as agent for the Plaintiffs, but in his own right. He was carrying on the business on the premises not as agent for the Plaintiffs but for himself. When, therefore, the sheriff entered [600] and seised the machinery possession had not been taken by the Plaintiffs, and the judgment creditor is...
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