Wilson v Cluer
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1841 |
| Date | 03 July 1841 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 320
ROLLS COURT
[214] wilson v. cluer. July 3, 1841. Decree against a mortgagee in possession, with costs ; a tender having been made before suit, and it having been found, upon taking the accounts with annual rests (which was the point in the cause), that nothing was, at that time, due to the mortgagee. This case is reported in 3 Beavan, 136, where it appears that the Master of the Rolls directed the account to be taken, with annual rests, as against a mortgagee in 4BEAV.J18. HARVEY V. HAEVEY 321 possession, on the ground that all the arrears of interest had, by a settlement of accounts, been then converted into principal. It appears also that, in 1824, the mortgagor tendered the mortgagee 40 in payment of his demand; and that, upon taking the accounts without annual rests, 45 was due to the Defendant. Th cause now came on upon the Master's report, by which, according to the new mode of taking the accounts, he found that 159 was due from the mortgagee to the mortgagor, and he further found, from the accounts, that by this particular mode of taking the accounts, the mortgage had been paid off previous to the tender of the 40. Mr. Pemberton and Mr. Coleridge, for the Plaintiff, asked that the Defendant might pay the costs of suit. [216] Mr. Stinton, contrh, contended that the mortgagee ought not to be subjected to costs, as the decision in the case was new, and as the mortgagor had been originally in default. BilUngtan v. Harwood (Turn. & Euss. 477) was cited. the master of the rolls said he had no choice, but must direct the Defendant to pay the balance found due from him, with the costs of the suit; and to assign the term at the expense of the Plaintiff. note.-See Harvey v. Tebbutt, 1 Jac. & W. 197, and the cases there referred to.
English Reports Citation: 49 E.R. 53
ROLLS COURT
S. C. 9 L. J. Ch. 333; 4 Jur. 883. For subsequent proceedings, see 4 Beav. 214.
[136] wilson v. cluek. July 17, Aug-usf 1, 1840. [S. C. 9 L. J. Ch. 333 ; 4 Jur. 883. For subsequent proceedings, see 4 Beav. 214.] Generally, annual rests are not directed against a mortgagee in possession, when the interest is in arrear at the time he took possession ; and in the absence of special circumstances, if a mortgagee is not liable to account with annual rests, when he enters into possession, he does not become so liable, until the whole of the mortgage debt has been paid off. Where, however, a mortgagee in possession came to an account...
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