Thornborough v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1675 |
| Date | 01 January 1675 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 1000
HIGH COURT OF CHANCERY
[628] thornborough v. baker, IQthJuly, 27 Car. 2, 1675. 1 Ca. in Cha. 283; 2 Freem. 143.-The executor, not the heir, of a mortgagee in fee, is entitled to the money secured by the mortgage. Reasons of that doctrine. Lawrence Clifton, in consideration of £500, conveyed to James Baker in fee; James, by a separate indenture, executed at the same time, agreed that if Lawrence payed £30 half-yearly during his life, and if the heirs of Lawrence after his death pay unto James Baker, his heirs, executors, administrators, or assigns, within six months after the death of Lawrence, the full sum of £500, with the interest due since the payment of the last £15, then the conveyance to be void. Lawrence died, and the Plaintiff's wife is daughter and heir. James Baker died in 1659, and by his death the forfeited premises descended to John Baker, an infant, his son and heir, who was Defendant, by Sir John King, his guardian, together with his mother Sarah, the administratrix of James, since married to Nichols. The Plaintiff's suit was to have the redemption : the Defendants, by answer. 3 SWANS. 629 (Apy.). THORNBUROUGH V. BAK.EK 1001 submitted to a redemption, and the administratrix confessed that James left assets to pay his debts, besides the £500 and interest; and the question before the Master of the Bolls was, whether the heir or administratrix should have this money '( Wherein because the precedents were various, and this was like to be a leading case for the future, the Master of the. Roils would deliver no opinion, but left the cause to be set down before me to receive my determination upon it. [629] I decreed the money to the administratrix for these reasons : First, where the condition of the fee-simple mortgage mentions neither heirs nor executors, there the money ought to be paid to the executors ; for so is Littleton's text (sect. 339), and Goodal's case (5 Co. 95) ; and the reason is, because the money came first out of the personal estate, and so naturally returns thither again. Secondly, when both are mentioned, but disjunctively, there if the mortgagee pay the money precisely at the day, he may elect to pay it to the heir oi1 executor as he pleases. Thirdly, where the precise day is past, and the mortgage forfeited, there all election is gone in law ; for in law there is no redemption. Fourthly, though equity do still give the mortgagee a power of redemption...
To continue reading
Request your trial
- HM Attorney General v Stephen Yaxley-Lennon
- Haque v Haque [No2]
- HM Attorney General v Stephen Yaxley-Lennon
-
Thomas Duffield, Esquire, and Emily Frances his wife, - Appellants; Amelia Maria Elwes, Widow, and Abraham Henry Chambers, Esquire, William Hicks, Clerk, and George Thomas Warren Hastings Duffield, Caroline Duffield, Maria Duffield, Anna Duffield, and Susan Eliza Duffield, Infants, by Original and Amended Bill, - Respondents
...in the mortgagor. Pawlett v. Attorney General (Hardr. 469); Thornborough v. Baker (1 Ch. Ca. 283, and from Lord Nottingham's notes in 3 Swanston 628); Noy v. Ellis (Ch. Ca. 220); Ellis v. Gravas (2 Ch. Ca. 50); Cope v. Cope (2 Salk. 449); Howell v. Price (1 P. Wms. 294.) [509] In Chester v.......