Thomas v Cross

JurisdictionEngland & Wales
CourtHigh Court of Chancery
Judgment Date22 Apr 1865

English Reports Citation: 62 E.R. 682

HIGH COURT OF CHANCERY

Thomas
and
Cross

S. C. 34 L. J. Ch. 580; 11 Jur. (N. S.)384; 12 L. T. 293.

Proceeds of Sale. Judgments.

[423] thomas v. cross. April 22, 1865. [S. C. 34 L. J. Ch. 580; 11 Jur. (N..S.) 384; 12 L. T. 293.] 13th sec. of 1 & 2 Fie. c. 110. Proceeds of Sale. Judgments. "Where real estate was devised upon absolute trust for sale, and proceeds of the sale were directed to be divided among testator's sons : Held, that the interest of such sons in such proceeds of sale did not come within the 13 section of the 1 & 2 Vic. e. 110; and, therefore, that judgment creditors had no charge on such interest by virtue of their judgments; and that judgment creditors who had obtained charging or stop-orders on the fund which was in Court had priority according to the dates of such orders. , This was an adjourned summons. The suit was for foreclosure; the Plaintiff's priority as first mortgagee not being disputed. The mortgaged premises comprised (inter alia) certain real estates, some parts of which were in Middlesex, being the share of the Defendant, James Cross, the mortgagor, under the will of John Cross. This will was proved in March 1836. By the will the estates in question were devised upon trust for the testator's wife for life, with remainder upon trust to sell and divide the income of proceeds of sale among the testator's sons for life, James Cross being one of those sons. The testator's wife died in September 1856, but the realty was not sold till 1862, [424] Upon the usual inquiry as to priorities of various incumbrancers directed by the decree the following charges and incumbrances were brought forward. A judgment in favour of the Defendant Batho, signed on the 18th of February 1861, and registered in the Common Pleas on the same day; but this judgment was never registered in the Middlesex registry, and the Defendant Batho never obtained a charging order on the funds belonging to the testator's estate, which was being administered in a suit of Gross v. Maltby. The Defendants, Banfill and wife, also held a registered judgment, dated the 25th of February 1861, and they had obtained a charging order as judgment creditors in the suit of Cross v. Maltby on the 16th of May 1862, and a stop-order on the fund, dated 30th of May 1862. The Defendants, Hensman and Nicholson, who claimed under written charges, dated 6th of January 1862, and further charges, dated 26th of January 1863, 4th of August 1863 and 1st...

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4 cases
  • Irani Finance Ltd v Singh
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 22 June 1970
    ...at Law or in Equity, whether in Possession, Reversion, Remainder, or Expectancy." 10 In 1865 Vice Chancellor Kindersley, held in Thomas v. Cross, 2 Drewry & Smale, 423, that the judgment debtor's interest in the proceeds of sale of land subject to a trust for sale was not charged ......
  • Cedar Holdings Ltd v Green
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 9 March 1979
    ...binding in this case, because it was a decision upon a different Act and rested in part on the long standing authority of Thomas v. Cross, Prury & Smile, 423 (62 English Reports, 682) that proceeds of sale under a trust for sale are not within the words "lands and H hereditaments&......
  • Stevens v Hutchinson
    • United Kingdom
    • Chancery Division
    • Invalid date
  • Elias v Mitchell
    • United Kingdom
    • Chancery Division
    • Invalid date

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