Sturt v Mellish
| Jurisdiction | England & Wales |
| Judgment Date | 13 July 1743 |
| Date | 13 July 1743 |
| Court | High Court of Chancery |
English Reports Citation: 26 E.R. 765
HIGH COURT OF CHANCERY
See Wilson v. Lord Bury, 1880, 5 Q. B. D. 531.
[608] Case 340.-stilbman versus ashdown, June 18, 1743. A Rehearing. S. G. Amb. 13; ante, 477.-Lord Hardwicke, being of the same opinion he was at the former hearing, affirmed the decree he made on the 8th Dec. 1742. The single point here was, whether a judgment creditor shall have the whole real assets (descended upon the heir of the conusor) sold to satisfy his debt, or only a moiety, being obliged to come into this court to set aside a fraudulent conveyance. 764 gTlLBMAN 1). ASHDOWN 2 ATE. 609. This cause was heard the 8th of December 1742, and the Chancellor was then of opinion that only a moiety of the real assets should be sold. Mr. Attorney General was counsel for the heir at law and executor. The statute of Westminster, he said, which gives the elegit, means no more than to give the judgment creditor an election to come upon the lands of conusor for one moiety of his debt, and as to the other moiety, upon the personal estate of the conusor. The present defendant is bound no otherwise than as terre-tenant. Suppose this was the case of a mortgagee, would the court do it to his prejudice 1 If the court would not do it in that case, why will they do it against an heir at law 1 The cases cited on the other side do not come up to the present purpose, the first case was Gompton versus Pigot, before Lord Ear court the 14th of December 1711. There a bill was brought by a judgment creditor against an executor and the heir at law, to have the personal estate applied first, and if not sufficient, then the real estate to be sold. The words of the decree there to have the whole real assets sold liable to the judgment, may admit of this doubt, whether the decree does riot confine it to such assets as are only liable to the judgment, and not to all assets descended upon the heir. He cited two cases as in point for the defendant in Lord Chancellor King's time, Harvey versus Woodhouse, October 30, 1730 (Fitz-Gibb. 144; Sel. Ca. Cha. 80, S. C.), and Fish versus Burdos, the February following. Lord Chancellor. Had it not been for the case of Gompton versus Pigot, I should have thought it very clear for the heir at law. The judgment affects the land as it is bound by the judgment: [609] equity follows the law in this case, and as the plaintiff can extend only a moiety there, he shall have no more here. It appears to me in this light...
To continue reading
Request your trial
- Commissioner of the Federal Capital v Insurance Company of North America
- Accident Compensation Tribunal v Commissioner of Taxation
-
Isaac Robinson, surviving Administrator of the Estate of George Robinson, deceased, - Appellant; Daniel Alexander, on behalf of himself and other the Creditors of the said Intestate, George Robinson, - Respondent
...of the refusal; Topham v. Braddick, 1 Taunt. 572. See Jolliffe v. Pitt, 2 Vern. 694. Sherman v. Withers, 1 Ch. Ca. 152. Sturt v. Mellish, 2 Atk. 610.; and the note to Jones v. Turberville, 2 Ves. jun. 15.; Bull. N. P. 149. 982 English Reports Citation: 5 E.R. 973 COURT OF CHANCERY. Isaac R......
-
Khardisha Lindy Princess Jawahir Heir-at-Law of the Estate of the late Marcellinus Jawahir v Davis Garvin Jawahir Administrator of the Estate of the late Marcellinus Jawahir
...of St. Lucia Cap. 4.01 Laws of St Lucia Revised edition 2013 applied; Re Lake Ex p Dyer [1901] 1 Q.B. 710 considered; Sturt v Mellish (1743) 26 ER 765 considered; re Williams, Williams v Williams [1897] 2 CH 12 considered; Halsbury's Laws of England Fourth Edition Vol 48 applied. REASONS ......