Wright v Kirby
| Jurisdiction | England & Wales |
| Judgment Date | 04 March 1857 |
| Date | 04 March 1857 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 182
ROLLS COURT
S. C. 3 Jur. (N. S.) 851; 5 W. R. 391. Principle adopted, Batten, Proffitt & Scott v. Dartmouth Harbour Commissioners, 1890, 45 Ch. D. 612.
[463] wright v. kirby. Feb. 27, March 4, 1857. [S. C. 3 Jur. (N. S.) 851 ; 5 W. E. 391. Principle adopted, Batten, Proffitt & Scott v. Dart-mouth Harbour Commissioners, 1890, 45 Ch. D. 612.] Generally, the costs of a mortgagee are added to his security, and in whatever rank or order the security stands, his costs are united to it and form part of it ; but if he institute a suit for the administration of a deceased mortgagor, his costs are those of a Plaintiff in an ordinary administration suit. When a pwsnd incumbrancer sues for and recovers a fund for the benefit of all, his costs are paid, in the first instance, out of the fund recovered. An estate was greatly incumbered. The first charge was an annuity, and, in default of payment, the annuitant had a power to sell and invest the produce in the purchase of a similar annuity. The grantor reserved a power of repurchase. The annuitant having sold the estate, the fifth incumbrancer filed a bill to repurchase the annuity and distribute the produce. Held, that the Plaintiffs costs were the first charge on the fund, and that the costs of the other incumbrancers must be added to their securities. The real estate of Thomas Twiaden Hodges was subject to a considerable number of incumbrances. The first, dated in 1848, was a grant of a life annuity of 550 to Henry Porter Smith, secured on the estate. The deed contained a power, upon default in payment of the annuity, to sell the estate and to invest the produce in the purchase of a similar life annuity, and to hold the surplus in trust for the grantor. The deed [464] also contained a power for the grantor to repurchase the annuity on payment of 4146. The second incumbrance was a mortgage to Maesfield, the third was a mortgage to Gambier, the fourth was a registered judgment obtained by Webb, and the fifth was a similar judgment obtained by the Plaintiff Wright. There were a great number of subsequent incumbrancers, who were Defendants, but it is unnecessary to specify their names or the order of their charges. In 1853 the annuity being in arrear, Smith exercised his power of sale and sold the whole estate, and after payment of the arrears, &c., a very large balance remained in his hands. The Plaintiff, the fifth incumbrancer, instituted this suit against...
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