Scholefield v Lockwood
| Jurisdiction | England & Wales |
| Judgment Date | 06 November 1863 |
| Date | 06 November 1863 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 822
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 32 Beav. 434; 33 L. J. Ch. 106; 8 L. T. 407; 9 L. T. 400; 3 N. R. 177; 9 Jur. (N. S.), 738, 1258; 11 W. R. 555; 12 W. R. 114. For subsequent proceedings, see S. C. L. R. 7 Eq. 83.
22] scholefield v. lockwood. Before the Lord Chancellor Lord Westbury. Nov. 5, 6, 1863. [S. C. 32 Beav. 434; 33 L. J. Ch. 106; 8 L. T. 407; 9 L. T. 400; 3 N. R. 177; 9 Jur. (N. S.), 738, 1258; 11 W. R. 555; 12 W. R. 114. For subsequent proceedings, see S. C. L. R. 7 Eq. 83.] A husband's estates were limited to himself for life, with remainder to such uses as he and his wife should jointly appoint for the purpose of raising money by way of mortgage or otherwise, and, subject thereto to a termor to raise certain moneys due from the husband, with remainder to the wife for life, and with an. ultimate remainder to the husband and wife in moieties. The husband and wife exercised the joint power, and thereby raised money for the use of the husband. Held (affirming the decision of the Master of the Rolls), that the case was not one in which the wife's estate had been pledged or charged for the husband's debt; and that, as there was no charge upon her estate, there could be no claim on her part for exoneration as against the husband's moiety of the estate, under the limitations of the settlement subsequent to the joint power. Two of the settled estates were at the date of the settlement subject to two several mortgages, hereinafter called respectively mortgage A and mortgage B. A third estate was subsequently charged under the joint power with a mortgage hereinafter called mortgage C. The husband was tenant for life in possession of all three estates, and in 1840 a judgment was recovered against him, which was registered about the same time. In 1841 he became insolvent, and afterwards the interest on mortgage A was allowed to fall into arrear. On the other hand, the persons claiming under mortgages B and C, which did not affect the property comprised in mortgage A, were permitted to enter into the perception of the rents of the property in mortgage to them, and those rents exceeded the interest on mortgages B and C, so that the persons claiming under these mortgages had a surplus of the rents in their possession. Held, that inasmuch as when the judgment was registered no surplus of the rents was in the possession of the mortgagees claiming under mortgages B and C, the judgment creditor was subject to the same equity as would affect the tenant for life himself, viz., the obligation to keep down the arrears of the interest on mortgage A before he could claim to stand in the place of the mortgagees claiming under mortgages B and C in respect of the principal moneys paid off out of the rents received by them. Semble, that the case would have been otherwise had their been surplus rents in the hands of the mortgagees in question at the date of the registration of the judgment. Held, however, that the loss must be actually incurred before it could be the subject of set-off. The costs of an unnecessary party to an appeal ordered to be paid by the Appellant. This was an appeal by the Defendant William Ryder Durant from parts of a decree made by the Master of the Rolls. The suit was instituted by a judgment creditor of a deceased mortgagor against the representative of the deceased mortgagee in possession of parts of the mortgaged estates, the assignee in insolvency of the mort-[23]-gagor, and the Appellant who claimed in manner hereinafter appearing under the wife of the mortgagor as Defendants. The object of the suit was to effectuate the judgments, and the decision of the Master of the Rolls is reported on some points in Mr. Beavaii's Reports (vol. 32, pp. 434_440). The decision, there reported as Schokjield v. Lockwood (No. 1), formed the subject 4DBO.J. Hi. 24. SCHOLEFIELD V. LOCK WOOD 823 of the first part of the present appeal; and the circumstances under which it arose, so far as they are material, were as follows :- At the time of the settlement next hereinafter referred to, Thomas Dutton, the deceased mortgagor, was entitled to three estates. One of them was subject to a mortgage for £1400, a mortgage affecting the fee-simple; another was subject to a mortgage, also affecting the fee-simple, for a sum of £3000. By a post-nuptial settlement, dated in the year 1832, and proceeding upon a contract for value between Thomas Dutton and Hannah Dutton his wife, the three estates were limited, subject to the mortgages, to Mr. Dutton for life, remainder to such uses as Mr. and Mrs. Dutton should jointly appoint " for the purpose of raising money by way of mortgage or otherwise ; " and in default of the exercise of any such power and subject thereto, to a trustee for a term of years, upon trust to raise such sum, not exceeding £600, as should be owing by Thomas Dutton in respect of two sums of £300 each, with remainder to the use of Hannah Dutton the wife for her life; and from and after her death, then, as to one moiety, to Thomas Dutton in fea, and as to the other moiety of the estate to such uses as Hannah [24] the wife should appoint by deed or will, and, subject thereto, to herself, in fee-simple. Subsequently to the settlement, viz., in the year 1837, the joint power of appointment given by it to Mr. and Mrs. Dutton was exercised for the purpose of creating a mortgage for an aggregate sum of £1000, viz., two separate sums of £600 and £400. The Lord Chancellor, from whose judgment the present statement of the facts is in part taken, thought that there could be little doubt that this aggregate sum was the debt of the husband, and, in the first part of his judgment, his Lordship assumed that to have been the case. Thomas Dutton the husband became insolvent in May 1841, and died in 1858. His assignee had been, as already stated, marie a Defendant to the bill, but disclaimed at the Bar. Hannah Dutton survived her husband and died in 1859, having in 1857 exercised the power given her by the settlement of 1832 over one moiety of the settled estates, and settled the moiety in question in such a way as that, subject to her life-estate and the mortgages, the moiety became vested as to one-third in the Plaintiff, and as to the remaining two-thirds in the Appellant. It will be seen from what has been said that the mortgage for the aggregate sum of £1000 affected the inheritance of the estates by virtue of the exercise of the joint power; and the wife being entitled under the subsequent limitations to one moiety of the inheritance of those estates, it was insisted, both before the Master of [25] the Rolls and again on the present appeal by the Appellant, as claiming under the wife, that the mortgage in question was to be regarded as for the husband's benefit alone, and that, inasmuch as by the exercise of the joint power her estate was made subject to such mortgage, she was entitled, to the extent to which her estate was damnified by the charge so created, to have it exonerated out of the other moiety limited to her husband. The Master of the Eolls decided against this view ; Scholefie.ld v. Lockwood (No. 1) (32 Beav. 434). The second point, in respect of which the present appeal was brought, arose in the following way :- The estates settled by the settlement of 1832 were, in...
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