Trimmer v Bayne. [HIGH COURT of CHANCERY]
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 1803 |
| Date | 12 December 1803 |
| Court | High Court of Chancery |
English Reports Citation: 32 E.R. 582
HIGH COURT OF CHANCERY
See Selby v. Selby, 1828, 4 Russ. 339 (n.), 340; Wythe v. Henniker, 1833, 2 My. & K. 646; Sproule v. Prior, 1836, 8 Sim. 192; Earl of Clarendon v. Barham, 1842, 1 Y. & C. C. C. 712; Webb v. Smith, 1885, 30 Ch. D. 202.
[209] the sittings after michaelmas term, 44 geo. III. 1803. trimmer v. bayne. Rolls, Dec. 8th, Uth, 1803. [See Selby v. Selby, 1828, 4 Russ. 339 (n.), 340 ; Wythe v. Henniker, 1833, 2 My. & K. G4G ; Sproule v. Prior, 183(5, 8 Sim. 192 ; Karl of Clarendon v. Barham, 1842, 1 Y. & C. C. G. 712 ; Webb v. ttmith, 1885, 30 Ch. D. 202.] General principle of marshalling ; that, a party having two funds, his choice shall not have the effect of disappointing another, who has one only : but the latter shall stand in the place of the former. Upon that principle the benefit of the vendor's lien on the estate for the purchase-money extended to third persons. Under the decree in this cause, declaring, that the Plaintiffs, Trimmer and Ids wife, were not entitled to the legacy of 5000, and directing the necessary accounts and inquiries (reported upon that point, 7 Ves. 508), the Master's Report stated the accounts ; by which the claim of the Defendant Alexander Bayne, the heir at law of the testator, against the personal estate was ascertained at the sum of 3630, 13s. Id. in respect of specialty and simple-contract debts, and the purchase-money of real estates contracted for by the testator before his death, by writing not under seal, paid out of the money produced by the sale of the testator's real estate. With respect to the last head, the purchases were made by auction, and agreements signed, and deposits paid by the testator, in the usual way. At the [210] death of the testator no more than the deposits had been paid on account of the purchase-money. The cause coming on for farther directions, and upon a petition by the heir, the principal question was upon his claim to be reimbursed the payments out of the real fund on account of the purchase-money of the estates contracted for by the testator. Mr. Alexander, Mr. Romilly, and Mr. Harvey, for the Plaintiffs. The vendor has been paid out of the real estate ; and the point contended by the heir is, that 9 VES. JUN. 211. INNES V. MITCHELL 583 the purchase-money was a simple-contract debt; and must be paid out of the personal estate. The question, whether the vendor's lien upon the estate for the purchase-money will extend to...
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