Ranken v Boulton
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1846 |
| Date | 18 July 1846 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 892
HIGH COURT OF CHANCERY
Affirmed, 2 Ph. 22; 41 E. R. 849.
[215] ranken v. harwood. eanken v. boulton. July 7, 8, 18, 1846. [Affirmed, 2 Ph. 22; 41 E. B. 849.] A creditor recovered judgment, and sued out a writ of fieri facias thereupon, in the lifetime of his debtor, and placed the writ in the hands of the sheriff on the day after the debtor died. A decree was afterwards made in the suit of an equitable mortgagee of certain parts of the real and personal estate of the debtor against his devisee and executor, for the sale of the mortgaged property, and if the proceeds of such sale should be insufficient to satisfy the Plaintiff's debt, then for an account and application of the general personal and real estate of the testator, in a due course of administration. After this decree the judgment creditor levied, under the fieri facias, on goods left by the debtor. The executor thereupon moved for an injunction to restrain execution, which the Court refused on two grounds, first, because the decree for an account and administration of the general estate was not absolute, but was conditional on the mortgaged property proving insufficient to satisfy the Plaintiffs demand; and, secondly, because the judgment creditor acquired a right to the goods of the debtor, by virtue .of the writ .of fieri facias, from the teste of the writ, and therefore paramount to the right of the executor. On the 25th of November 1854 Thomas Kirk brought his action against Benjamin Harwood, and recovered judgment. Judgment was signed on the 9th of December 1845, and thereupon a writ of fi. fa. was, on the 10th of December, delivered to the Sheriff of Middlesex, to which writ the sheriff returned nulla bona. On the 2d of 5 HAKE, 216. EANEBK f.. HARWOOD 893 April 1846 a writ of --fi. fa. on the same judgment, endorsed to levy 522, 9s. 8d., was sued out, directed to the Sheriff of Surrey, and on the 7th of April the latter writ was placed in the hands of the officer of [216] the Sheriff of Surrey for execution. On the 6th of. April, the day before the last writ was delivered to the sheriff, Benjamin Harwood died. In April 1842, during the lifetime of Benjamin Harwood, a suit had been instituted by the Plaintiff, who was. an equitable mortgagee by deposit of deeds or instruments of certain leasehold premises and shares, and was second mortgagee of freehold and other property against Benjamin Harwood, the mortgagor, and certain trustees for sale of the same property, appointed by a deed, to which Harwood, the other mortgagees and the Plaintiff, were parties. The bill prayed an account of what was due to the Plaintiff and payment; or, on default, that the mortgaged property might be sold, and the mortgagees, including the Plaintiff, paid out of the proceeds, according to their priority. Upon the death of Benjamin Harwood, the Plaintiff filed his bill of revivor and supplement against G. Boulton, the sole acting devisee and executor under the will of Benjamin Harwood, praying that the suit might stand revived, and the Plaintiff might have the benefit thereof, and that the Defendant, C. Boulton, might admit assets of the estate of Benjamin Harwood, or that the necessary accounts might be taken of his real and personal estate, come to the hands of the Defendant, and that the same might be applied in payment of the Plaintiff's debt, and of the other specialty creditors of Benjamin Harwood, in a due course of administration. The Defendant, C. Boulton, the executor, by his answer to the supplemental bill, stated that the personal estate of Benjamin Harwood, .when entirely realised, would not, as he believed, produce 100 ; that Benjamin Harwood was, at the time of his death, a prisoner for.debt, subsisting on the county allowance; and that [217] he had no real estate whatsoever, except that comprised in the mortgage. On the 6th of June 1846 a decree was made in both causes, and thereby, after directing an account of what was due to the Plaintiff and the other mortgagees respectively, it was by consent ordered that the whole of the freehold and copyhold hereditaments, and! the leasehold premises and shares, should be sold; and after giving the Plaintiff liberty to bid, and providing for the payment of the purchase-money in the several events of the property being sold with or without the concurrence of the first mortgagees, or of the Plaintiff, or any other parties becoming the purchasers, it was ordered that if the monies which should arise, and which, in respect of the rents and profits received by, or on account or for the use of the Defendants (the trustees for sale) should be paid into Court, as thereinbefore directed, should not be sufficient to pay unto the Plaintiff what was due to him upon his said securities, including the costs; and if the Defendant, C. Boulton, should not admit assets of Benjamin Harwood, the mortgagor and testator, come to his hands sufficient to .pay what might remain due to the Plaintiff for principal, interest and costs, upon or in respect of his said securities, then the Master was to take an account of the personal estate of Benjamin Harwood, come to the hands of the Defendant, C. Boulton, &c. And it was ordered that the Master should .also take an account of what was due for the said testator's specialty debts and funeral expenses. And the Court did thereby order and decree that the said personal estate should be applied in payment of what should remain due to the said Plaintiff for principal, interest and costs on his said securities, and of what should be reported due on the other specialty debts of the testator, and funeral expenses, in a due course of administration; [218] and in case the said personal estate should not be sufficient for that purpose, then the Master was to inquire and state whether the testator, at the time of .his death, was seised of or entitled to any freehold or copyhold estate, other than- those comprised in the said securities of the Plaintiff -f and if he should, find that the testator was so seised or. entitled, then the Master was also to distinguish between such parts thereof (if any) as passed by the will of the testator, from such parts thereof (if any) as did not pass by his will. The receiver appointed in these causes was thereby ordered to pass his accounts before the Master: further directions and costs were reserved, and liberty was given to all parties to apply-On the 1st of July the Sheriff of Surrey, under the writ oifi.fa. in his hands, took 894 EANKEN V. HAHWOOD 5 HAEE, 219. possession of certain furniture and effects, formerly belonging to Benjamin Harwood, which were in his house at Streatham at the time of his death, and had been since locked up in the same house. On the 2d of July the Defendants, Kirk and the sheriff, were served with notice of the decree of this Court of the 6th of June. July 8. The executor of Benjamin Harwood now moved for an injunction to restrain the sheriff from proceeding to remove or sell the furniture and effects seized by him under fhefi. fa., and to restrain the Defendant, Kirk, from proceeding in the action. Mr. Romilly and Mr. Pole, for the motion. It is the rule of the Court, when it has taken upon itself the administration of assets, to restrain all proceedings at law against such assets, and permit parties having claims on the estate to come in under the decree. " It is fully [219] settled," Lord Eldon says, in Drewry v. Thacker (3 Swans. 544), that "a creditor seeking, and not having yet obtained, satisfaction at law, shall not be suffered to proceed there." And, again; in the same case, " After a decree for the administration of assets, those who make a demand which they have yet to recover against those assets must come in under that decree." (Ib.) The Court does not, in thus administering the assets, deprive the creditor of any legal right which he has acquired, but it enables him to bring into equity all his legal rights. Whittaker v. Wright (2 Hare, 310). If, therefore, it be the fact, which the Plaintiff does not admit, that the judgment creditor has acquired a right to these goods, under the writ of fi. fa., the effect of the injunction will not be to deprive him of that right, but the Court will give effect to it under the decree. It was not only the right, but the duty of the executor, to apply to this Court for the protection of the assets against the proceedings at law. Clarke v. Earl of Ormonde (Jac. 108): the case of Lee v. Park (1 Keen, 714) was also cited. Mr. Kolt and Mr. J. H. Taylor, for Thomas Kirk, the creditor. The case on which the Court restrains proceedings is where they are brought against the executor. The present proceeding is not against the executor. The goods of the testator were bound at the teste of the writ; the creditor then acquired a perfect right to take the goods in execution, and that right is not defeated by the death of the testator. Bragner v. Langmead (7 T. E. 20), Fann v. Atkinson (Willes, Eep. 427), Calvert v. Tomlin (5 Bing. 1), and the cases cited 1 Wms. Saunders, 219 f., 5th ed. According to the [220] common law the goods belonging to the debtor at the date of the writ might have been taken by the sheriff, even in the hands of a subsequent purchaser. (Anon., Cro. Eliz. 174.) Boucher v. Wiseman (Id. 440). The stat. 29 Car. 2, e. 3...
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