Tipping v Power
| Jurisdiction | England & Wales |
| Judgment Date | 10 March 1842 |
| Date | 10 March 1842 |
| Court | High Court of Chancery |
English Reports Citation: 66 E.R. 1090
HIGH COURT OF CHANCERY
S. C. 11 L. J. Ch. 257; 6 Jur. 434. See Henderson v. Dodds, 1866, L. R. 2 Eq. 533; In re Marine Mansions Company, 1867, L. R. 4 Eq. 611; In re Rhoades [1899], 1 Q. B. 908; [1899], 2 Q. B. 347; In re Griffith [1904], 1 Ch. 810.
[405] tipping v. power. Feb. 18, March 8, 10, 1842. [S. C. 11 L. J. Ch. 257 ; 6 Jur. 434. See Henderson v. Dodds, 1866, L. E. 2 Eq. 533; In re Marine Mansions Company, 1867, L. R. 4 Eq. 611; In re Rhoades [1899], 1 Q. B. 908; [1899], 2 Q. B. 347 ; In re Griffith [1904], 1 Ch. 810.] In a suit by a simple contract creditor, whose debt was secured by a deposit of deeds by way of equitable mortgage, against the executors and devisees of the debtor, the mortgaged premises were sold, and were not sufficient to pay the Plaintiff's debt. The general assets of the testator were insufficient to pay his debts and the costs of suit. The parties beneficially entitled under the devise by their answer disclaimed, but the bill was not dismissed against them. Held, that the Plaintiff as equitable mortgagee was entitled to the proceeds of the sale of the mortgaged premises, and the executors of the testator were entitled to retain in full out of the general assets the debts owing to them by the testator, and that the residue of the assets should be applied in the following order:-in payment, first, of the costs of the executors, as between solicitor and client; secondly, of the costs of the Plaintiff (including those of the purchaser, which the Plaintiff was ordered to pay); thirdly, of the costs of the Defendants beneficially entitled under the devise; and, fourthly, of the debts remaining due to the Plaintiff and the other creditors. The Plaintiff sold and conveyed a plot of land to "W T. Power, the testator, in fee. The purchase-money was 119, 15s., of which 19, 15s. were paid, and the remaining sum of 100 was secured by a promissory note of the testator for that sum, and a deposit of the purchase deed by way of equitable mortgage. The testator devised the said plot of land and other real estate to his executors, H. Power and J. Archer, in trust for his wife for her life, and afterwards for sale, for the benefit of his children ; and he died, leaving the 100 and interest thereon unpaid. The bill was filed by the Plaintiff against the executors and devisees, and the parties beneficially interested in the estate of the testator, for an account of the debt due to the Plaintiff, a sale of the said plot of land, and payment to the Plaintiff of the proceeds of such sale towards the discharge of his debt; and also for an account of what was due to all other the unsatisfied creditors of the testator, an account of the personal estate possessed by the executors, and for the application thereof, and a sale of the other real estate, and payment of the proceeds in satisfaction of the Plaintiff and the other unsatisfied creditors. The parties beneficially entitled under the will of the testator put in their answer and disclaimed all right, title and interest in and to the real and personal estate. [406] The decree directed an account to be taken of what was due to the Plaintiff for principal and interest on his mortgage security, and that the mortgaged premises should be sold, and the purchase-money paid into Court; and directed also the usual accounts of the personal estate of the testator and the application of the same in a due course of administration ; and an inquiry of the other real and copyhold estates of the testator. The report stated the accounts of the testator's estate in effect as follows :- Due to the Plaintiff for principal and interest on his mortgage, 127, 7s. Id. Sum produced by the sale of the mortgaged premises, 115, 17s. 7d. Personal estate 1 HARE, 407. TIPPING V. POWER 1091 received by the executors, 524:, 13s. 4d. Paid by the executors (including 27 retained,by J. Archer, and .129, 19s. 8d. retained by H...
To continue reading
Request your trial
-
Re Gordon
...Higgs (5 Simons, 228) ; Kent v, Pickering (2 Keen, 1); Winter v. Hicks (Tamlyn, 475) ; Hall v, Macdonald (14 Simons, 1); Tipping v. Power (1 Hare, 405); Stahlschmitit v. Lett (1 Sm. & (4. 413). Mr. Follett and Mr. J. C. Mander, for the Plaintiff. Mr. W. Pearson, for Samuel Fox. Mr. C. Hall,......
-
The Queen against The Eastern Counties Railway Company
... ... The usual powers to take lands were conferred, with power to deviate from the line to a limited extent. All the 1,600,0001. was to be subscribed for, before the company could exercise their compulsory ... ...
-
Hanley v M'Dermott
...Charles Cox 3 P. Will. 341. Hartwell v. ChittersENR Amb. 308. Cook v. GregsonENR 3 Drew, 547; S. C. 2 Jur. N. S. 510. Tipping v. PowerENR 1 Hare, 405. Boyd v. BrooksENR 34 Beav. 7; S. C. 34 L. J. Ch. 605. Bain v. SadlerELR L. R. 12 Eq. 570. Hall v. MacdonaldENR 14 Sim. 1. Davis v. Uphill 1 ......
-
Miles v Fox
...Hiygs (5 Simons, 228); Kent v. Pickering (2 Keen, 1); Winter v. Hicks (Tamlyn, 475); Hall v. Macdonald (14 Simons, 1); Tipping v. Power (1 Hare, 405); Stahls&midt v. Lett (1 Sm. & G. 415). Mr. Follett and Mr. J. C. Mander, for the Plaintiff. Mr. W. Pearson, for Samuel Fox. Mr. C. Hall, for ......