Price v Carver
| Jurisdiction | England & Wales |
| Judgment Date | 30 August 1837 |
| Date | 30 August 1837 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 884
HIGH COURT OF CHANCERY
Followed, Mellor v. Porter, 1883, 25 Ch. D. 158. 11 Geo. 4 & 1 Wm. 4, c. 47, s. 10, is repealed by 46 & 47 Vict. c. 49, s. 4; but see s. 7. See also Statute Law Revision Act (No. 2), 1888.
[157] price v. carver. May 31, Aug. 30, 1837. [Followed, Mellor v. Pmier, 1883, 25 Ch. D. 158. 11 Geo. 4 & 1 Wm. 4, c. 47, s. 10, is repealed by 46 & 47 Viet. c. 49, s. 4; but see s. 7. See also Statute Law Revision Act (No. 2), 1888.] A decree of foreclosure against an infant must give the infant a day to shew cause against the decree after he attains twenty-one, notwithstanding the provisions of the Act 11 G. 4 & 1 W. 4, c. 47, ss. 10, 11. 3 MY. ft OR. IK PRICE V. CARVER 885 In this ease the bill was filed by an equitable mortgagee of copyhold property, by deposit of copies of Court Roll, praying a foreclosure. Some of the parties interested in the equity of redemption were infants. At the hearing before the Lord Chancellor, on the 8th of April 1837, his Lordship made the usual decree for a foreclosure; but, in drawing up the decree, a question arose whether the infant-Defendants were to have a day to shew cause against the decree when they should attain twenty-one. Mr. Turner, for the Plaintiff. It is material for the Plaintiff that the decree should be drawn up in the proper form, and that the infant Defendants should not have any ground for shewing error in it. The doubt upon this subject arises in consequence of the decision of the Vice-Chancellor in the case of Powys v. Mwjinjidd (6 Sim. 637), upon the 10th and llth sections of the Act 11 G. 4 & I W. 4, c. 47. (1) [158] Hia Honour would seem to have been of opinion that before the passing of that Act the day to shew cause had been given only by analogy to the parol demurring ; and that the abolition of the demurring of the parol involved the abolition of the day to shew cause. This, however, is a misconception. The rule which allowed an infant a day to shew cause may perhaps be accurately stated as having been applicable to two cases, one, that of a mortgage, in which also the parol may hav been allowed to demur; and the other, that in which it was necessary to take am estate out of an infant; Sheffield v. The Duchess of Buckingham (West's Rep. Temp. Hard. 682. See p. 684), Blotch v. WiUer (West. Temp. Hard. 322. See p. 324). According to the old law, when real estates descended to an infant heir in fee, th& parol demurred; but when they descended subject to a trust or charge for the payment of debts or legacies, the parol did riot demur; but yet, in the latter case, the direction in the decree was that the infant should convey when he attained twenty-[159]-one, unless he shewed cause to the contrary; Hargrave v. Timlal (1 Bro. C. C. 136, n.), Mould v. Williamson (2 Cox, 386), Pope v. Gwi/n (2 Dick. 683), Uvedale v. Uvedale (3 Atk. 117). The proper form of the decree in this case will be to direct an account of what is. due for principal, interest, and costs ; to declare that, in default of payment, all parties shall be foreclosed; and that the adult Defendants shall convey immediately, and the infant Defendants shall convey when they come of age, unless, being...
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