Pollexfen v Moore
| Jurisdiction | England & Wales |
| Judgment Date | 05 February 1745 |
| Date | 05 February 1745 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 959
HIGH COURT OF CHANCERY
958 ASHENHURST V, JAMES 3 ATK. 271. Case 95.-ashenhurst versus james, February 3, 1745. : The defendant the assignee of two judgments, which were prior in point of time to the plaintiff's mortgage, is intitled to have interest on the whole money^ the accumulated sum which he paid for those two judgments. The bill was brought by the plaintiff, a mortgagee, against the defendant to redeem, who had one puny judgment and two prior, which he had taken an assignment of on the same estate, and for an account of the rents and profits of the premisses in question, and for an assignment of the two judgments. It appeared in the cause that the defendant had taken in the two prior judgments, by the desire of the plaintiff, who was not able to do it himself. [271] Lord Chancellor. The first question is, Whether the defendant is intitled to have interest upon the whole money, the accumulated sum which he paid for the two judgments assigned to him prior to the plaintiff's mortgage. The second question is, Whether the profits the defendant had received upon all the three judgments should be applied by him, or only such profits as he had received by virtue of the two prior judgments assigned to him by Thomas Price. As to the first, I am of opinion the defendant is intitled to have interest upon the whole sum, principal and interest, though not upon the general rule, but on the particular circumstances of this case. The general rule is, Where a man makes a security on mortgage, and there, is an arrear of interest thereon, if the incumbrancer assigns the same, with the concurrence of the mortgagor, the interest paid to the mortgagee by the assignee shall be taken as principal, and carry interest (vide Smith v. Pemberton, 1 Cha. Ca. 67. Chamberlain v. Chamberlain, ibid. 258. Gfladman v. Henchman, 2 Vern. 135); but where it is assigned without the consent of the mortgagor, the assignee must take it only upon the same terms with the assignor. (Fide Porter v. Hubbart, 3 Cha. Rep. 78. Earl of Macdesfield v. Fitton, 1 Vern. 168.) This general rule admits of distinctions upon particular circumstances. Here is an estate to be sold by virtue of a decree of this court, and the defendant is reported the best bidder. From that time he had as much reason to consider himself the owner of the equity of redemption, as if he had been a purchaser of it upon articles. It is the same as if being confirmed the...
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