Tuckley v Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 1860 |
| Date | 21 February 1860 |
| Court | High Court of Chancery |
English Reports Citation: 70 E.R. 689
HIGH COURT OF CHANCERY
S. C. on appeal, 3 L. T. 257. See In re Oriental Hotels Company, 1871, L. R. 12 Eq. 133.
Equitable Mortgage. Foreclosure or Sale. Administration. Costs.
[126] tuckley v. thompson. Feb. 8, 21, 1860. [S. C. on appeal, 3 L. T. 257. See In re Oriental Hotels Company, 1871, L. R. 12 Eq. 133.] Eqititable Mortgage. Foreclosure or Sale. Administration. Costs. Semble, the strict right of an equitable mortgagee by deposit without memorandum is sale, and not foreclosure. A mortgagee, whether legal or equitable, is entitled, after the death of the mortgagor, to prove his whole debt in an administration suit, and realise the security for the balance which the general estate may be deficient to satisfy. Where an equitable mortgagee filed his bill, praying, first, to realise his security, and then to prove for the balance only against the general estate : Held, that he was asking less than his strict rights as mortgagee, and his costs allowed out of the proceeds of the security in priority to those of the executors. The Plaintiff was equitable mortgagee by deposit of title-deeds of certain lands of J. H. Thompson, to secure £120 and interest. No memorandum accompanied the deposit. After the death of the mortgagor the Plaintiff filed his bill, praying, in default of payment of what was due on the equitable mortgage, that the property might be sold and the proceeds applied in or towards satisfaction of the Plaintiff's demand, and that any balance remaining due should be paid in due course of administration out of 690 TCJCKLEY V. THOMPSON U. & H. 127. Thompson's estate, and that, so far as necessary, the real and personal estate of Thompson might be administered. By the decree a sale was directed; but it was found impossible to obtain any bidders. Thereupon the Plaintiff offered to purchase the property for £250, conditionally, upon being allowed to retain his principal, interest and costs out of the purchase-money. The estate was insolvent, and the administrators claimed to have their costs of suit in priority to the Plaintiff's principal interest and costs. A summons to confirm the conditional contract of the Plaintiff was adjourned into Court. Mr. W. Pearson, for the Plaintiff. A mortgagee is entitled to his principal, interest and costs out of the proceeds of his security. The only case where the costs of suit can take priority is where the [127] Plaintiff takes proceedings...
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