Watson v Marston
| Jurisdiction | England & Wales |
| Judgment Date | 04 June 1853 |
| Date | 04 June 1853 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 495
BEFORE THE LORDS JUSTICES.
[230] watson v. mabston. Before the Lords Justices. May 25, June 4, 1853. A mortgagee, with power of sale, obtained a foreclosure decree, and then entered into an agreement to sell the estate, with a clause providing that as the vendor was mortgagee, with power of sale, she would only enter into the usual covenant that she had not ineumbered. The purchaser objected to the validity of the foreclosure decree, and insisted upon having the conveyance under the power of sale ; and on the vendor declining to convey in that form, instituted a suit for specific performance, in which the vendor adduced evidence, shewing that the above-mentioned clause was inserted by inadvertence, and that she never intended to incur the risk of opening the foreclosure by conveying under the power. Held, that the misapprehension was a sufficient defence to the enforcement of a conveyance under the power. Thia was the appeal of the Defendant, a mortgagee, who had contracted to sell freehold property comprised in her security, and against whom Vice-Chancellor Stuart had made a decree in a suit instituted by the purchaser, directing the specific performance of the contract, and also directing that the conveyance should be made by the Defendant under a power of sale contained in the mortgage. The question was whether the Plaintiff was entitled to a conveyance in that form or must take the title under a decree for foreclosure, obtained under the following circumstances:- The mortgage to the Defendant was created by an indenture dated the 22d of May 1847, made between Joseph Travis Clay of the first part, William Clay of the second part (who was a party merely for the purpose of joining in a covenant for payment of the mortgage money), and Ann Marston (the Defendant) of the third part; and thereby Joseph Travis Clay granted, released and confirmed the hereditaments in question, which consisted of freehold property at Birkenhead, unto and to the us of Ann Marston, her heirs and assigns, subject to a proviso for redemption on payment of 7,000 and interest on the 22d of November 1847. And the deed contained a power of sale, either in the event of default [231] being made in payment of the principal sum of 7000, on six months' notice being given requiring payment thereof as therein mentioned, or in the event of any half-yearly payment of interest being at any time thereafter in arrear and unpaid by the space of three calendar months next after the half-yearly day of payment upon which the same should become due. A second mortgage was afterwards made by an indenture dated the 30th of September 1847, between Joseph Travis Clay of the one part, and William Clay and William Lucas of the other part, whereby Joseph Travis Clay conveyed the premises to William Clay and William Lucas, their heira and assigns (subject to the former mortgage), for securing the payment by Joseph Travis Clay to William Clay and William Lucas, or the survivor of them, or the executors or administrators of such survivor, or their or his assigns, of the sum of 3000 with interest thereon. It appeared that this amount had been advanced by William Clay and William Lucas aa co-executors and co-trustees with Joseph Travis Clay, under the will of one 496 WATSON V. MARSTON 4 DE O. M. & G. 332. William Clay, deceased, out of trust-monies held by them upon trusts under which, in the events which had happened, William Lucas and Elizabeth his wife, in right of Elizabeth Lucas, Daniel Butter and Hannah Maria his wife, in right of Hannah Maria Rutter and Sarah Ann Clay, Amelia Clay and Mary Clay, were the only persons beneficially entitled. On the 5th of December 1848, the Defendant filed a foreclosure bill against the assignees of Joseph Travis Clay and of William Clay (who had both become bankrupt), and against William Clay, William Lucas and Elizabeth his wife, Joseph Travis Clay, Daniel Eutter [232] and Hannah Maria his wife, Sarah Ann Clay, Amelia Clay and Mary Clay. The Defendants William Clay, William Lucas and Elizabeth his wife, Daniel Rutter and Hannah Maria his wife, Sarah Ann Clay, Amelia Clay and Mary Clay, by their answer to the said bill respectively stated, amongst other things, that they and each of them did thereby renounce and disclaim any estate or interest...
To continue reading
Request your trial
- Gall v Mitchell
- Pakenham Upper Fruit Company Ltd v Crosby
-
Carroll v Keayes. Keayes v Carroll
...De G. F. & G. 307. Monro v. TaylorENR 8 Hare, 56. Gwynn v. Lethbridge 14 Ves. 585. Manser v. BackENR 6 Hare, 443. Watson v. MarstonENR 4 De G. M. & G. 230. Wood v. ScarthENR 2 K. & J. 42. Marquis of Townshend v. Stangroom 6 Ves. 328. Lehmann v. M'ArthurELR L. R. 3 Ch. App. 496; S. C., L. R.......
-
Barnard v Cave
...for the Plaintiff. [254] Mr. Follett and Mr. Wickens, for the Defendant. Tmonsend v. Slang-room (6 Ves. 328); Watson, v. Marston (4 De G. M. & G. 230), were cited. Dec. 11. the master of the rolls [Sir John Romilly]. On reading over the evidence in this case, I think it clear that the Defen......