The London and South Western Railway Act, 1855 ex parte George Phillips
| Jurisdiction | England & Wales |
| Judgment Date | 19 November 1862 |
| Date | 19 November 1862 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 667
BEFORE THE LORDS JUSTICES.
S. C. 2 J. & H. 390; 32 L. J. Ch. 102; 7 L. T. 452; 11 W. R. 54.
[341] In the Matter of the london and south-western railway act, 1855. Ex, parle geohge phillips. Before the Lords Justices. Nov. 19, 1862. [S. C. 2 J. & H. 390; 32 L. J. Ch. 102; 7 L. T. 452; 11 W. R. 54.] A vendor seised in fee-simple, free from incumbrancea save as to a small portion of the land in question, which portion, with other property of the vendor, was in mortgage to trustees of the will of a testator whose estate was being administered in the Comrt of Chancery, agreed with a railway company to sell them the whole of the land in fee-simple. The agreement was silent as to the existence of the mortgage. Held, that the company was not bound to pay, under the Lands Clauses Consolidation Act, 1845, the costs incurred by obtaining an order in the administration suit sanctioning the concurrence of the trustees in the conveyance to the company, but that such costs were properly payable by the vendor. This was an appeal from a decision of Vice-Chancellor Wood (2 J. & H. 390), ordering th& review of a Taxing Master's certificate and the allowance of certain costs of the Respondent Mr. George Phillips as against the Appellants the London and South-Western Railway Company. On the 17th of April 1861 an agreement was entered into between the Respondent and the company for the sale to the company in fee-simple of certain land in the Wandsworth Road. Of this land, at the date of the agreement, the Respondent was seised in fee-simple free from incumbrances save as to a small portion, which, with other property, also belonging to him, was subject to certain mortgage securities for a sum of £7100 in the aggregate. These mortgage securities were vested in the trustees of the will of one Wm. Holmer, and the estate of the latter was under the administration of the Court in two suits of Allen v. Embleton and Allen v. Allen. The agreement between the Respondent and the company was silent as to the existence of the mortgage securities. The agreement in fact was a compromise of a suit [342] instituted by the Respondent against the company for the specific performance by them of a contract respecting the land, which originated in a notice to treat under the Lands Clauses Consolidation 668 EX PABTE PHILLIPS 8 DE 0. J. * 8. MS. Act, 1845...
To continue reading
Request your trial