Purchase by trustees.

Section 6

Where an estate subject to a paramount charge becomes divided amongst several purchasers, it becomes a matter of some difficulty to determine the proportions in which they are to bear it as between themselves (s). The authorities seem to lead to the following conclusions, viz.:Contribution by purchasers to paramount charge.

(k) Hamblyn v. Ley, (1743) 3 Sw. 301; Trevelyan v. White, (1839) 1 Beav. 588 ; Stepney v. Biddulph, (1865) 13 W. R. 576.

(l) Stepney v. Biddulph, ib.

(m) Barber v. Broun, (1856) 1 C.B.N. S. 121 ; 26 L. J. C. P. 41.

(n) Hooper v. Cooke, (1855) 20 Beav. 639.

(o) Blomfield v. Eyre, (1845) 8 Beav. 250 ; 14 L. J. Ch. 260 ; and see Wyllie v. Ellice,.(l848) 6 Ha. 505.

(p) Sicks v. Sallitt, (1854) 3 D. M. & G. 732 ; 23 L. J. Ch. 571 ;

Schroder v. S., (1354) Kay, 578, 590; 23 L. J. Ch. 916 ; Hicks v. Hastings, (1857) 3 K. & J. 701 ; Nanney v. Williams, (1856) 22 Beav. 452.

(q) See Howard v. Shrewsbury (Earl of), (1874) 17 Eq. 378, 398, overruling Crewther v. C, (1857) 23 Beav. 305.

(r) Thomas v. T., (1855) 2 K. & J. 79, 85 ; 25 L. J. Ch. 159 ; Tinker v. Rodwdl, (1893) C9 L. T. 591; and see Penny v. Allen, (1857) 7 D. M. & G. 409; Wall v. Stanwick, (1887) 34 Ch. D. 763; 56 L. J. Ch. 301; Re Hobbs, (1887) 36 Ch. D. 553 ; 57 L. J. Ch. 184 ; and cases cited sup. p. 945.

If two estates, X. and T., are subject to a common charge, and estate X. is sold to A., A. will, as against the vendor and his representatives, have a primd facie equity, in the absence of express agreement, and whether or no he had notice of the charge, to throw it primarily on estate Y. in exoneration of estate X. (t).

If, then, estate Y. is subsequently sold to B. with notice of the charge and of the prior sale of X. to A., B. purchases with notice of A.'s equity, and the entire charge must rest primarily upon Y. (u).

If B., at the time of his purchase, has notice of the charge as affecting Y., but is not led to suppose that estate X. is also subject to it, or if he purchases without notice of the charge, and A. purchased with notice of the charge as affecting Y., in either of these cases, it is conceived, B.'s equity is inferior to A.'s, and the entire charge must rest primarily upon Y.

If B. purchases with notice of the charge as affecting Y., and with no notice of the sale to A., and is led to suppose that X. is subject to the charge, or if both purchase without notice of the charge, B.'s equity would appear in either case to be equal in degree to A.'s ; so that, either party, by taking a transfer of the charge and the securities (supposing them to be such as to give the incumbrancer a claim at Law against the two estates), would, it is conceived, be able to throw the charge exclusively upon the other (x). So, the incumbrancer, himself, if able to proceed at Law against the estates, might proceed against the two in such proportions, or against such one only, as he saw fit; and the purchasers, if they had the legal estate (as might happen in the case of the incumbrance being a rent-charge), would have no remedy as between themselves (y) ; but if their estates were equitable, or if the incumbrancer were obliged to, or did in fact, resort to a Court of Equity for payment of his claim, then the equities being equal, A.'s would prevail as being prior in date.

(s) See Jarm. Conv. 3rd ed. Vol. IX. pp. 127 et seq., where the earlier authorities are fully cited ; and see Aicken v. Macklin, (1838) 1 D. &Wal. 621 ; Handcock v. E., (1850) 1 Ir. Ch. R. 444 ; Re Jones, 1893, 2 Ch. 461 ; judgment of North, J., at p. 470.

(t) The marginal note to Bornes v.

Racster, (1842) 1 Y. & C. C. C. 401, is incorrect; the first mortgage in that case was of only one estate, see p. 403. Tidd v. Lister, (1852) 10 Ha. at p. 157 ; see Flint v. Howard, 1893, 2 Ch. 54; 62 L. J. Ch. 804; Woody. West, (1895) 40 Sol. J. 114. (u) See and consider Hamilton v. Royte, (1804) 2 Sch. & L. 315, 328.

So, in the case of mortgages, if two estates, X. and Y., are subject to a common charge in favour of A., and afterwards X. alone is mortgaged to B., B. is entitled to have the securities marshalled, and to throw A.'s mortgage primarily on estate Y. in exoneration of estate X. (z). The right of a subsequent mortgagee of one of the estates to marshal is an equity which is not enforceable against third parties, that is, against any one except the mortgagor and his legal representatives claiming as volunteers under him; it is not enforced against a mortgagee or purchaser of the other estate ; if both estates are subject to separate second mortgages the Court apportions the first mortgage between them (a). And where two separate estates, each of which is subject to a prior mortgage, are by the same deed mortgaged to A. for seeming an entire sum, and the two prior mortgages are subsequently transferred to B., with notice of A.'s charge, A. cannot insist on redeeming one estate without the other (b). The principle which now governs the doctrine of consolidation, so far as that doctrine still exists in spite of the Conv. Act, 1881 (c), is, that the purchaser of an equity of redemption takes it subject to all other equities which at the date of his purchase affected it in the hands of his vendor - of which the right of the mortgagee to consolidate his charge on that particular property with other charges then held by him on other property at the same time redeemable under the same mortgagor is one - and subject to those equities only; so that he cannot be affected by any equities subsequently created by the mortgagor (d). Thus, where a mortgagor assigned the equity of redemption of one property to A., and afterwards mortgaged another property to the mortgagee of the first, A. was held entitled to redeem the first mortgage without redeeming the second (e). And where a mortgagor mortgages two properties separately to separate mortgagees, and then assigns the equity of redemption of one of them (whether by way of sale or mortgage is immaterial), and the two mortgages subsequently become united in the same mortgagee, he cannot insist on the assignee redeeming both together (f).

In case of mortgages.


Extent of the doctrine.

(x) See Titley v. Davies, (1743) 2 Y. & C. C. C. 399; and see Sober v. Kemp, (1847) 6 Ha. 155.

(y) But the grantee of a rent-charge cannot distrain for part upon one, and for another part upon another, tenant: Owens v. Wynne, (1855)4 El. &B1. 579.

(z) See Gibson v. Seagrim, (1855) 20 Beav. 614 ; 24 L. J. Ch. 782; Flint v. Howard, 1893, 2 Ch. 54, 72 - 3 ; 62 L. J. Ch. 804 ; and generally on this subject see Coote on Mortgages, 7th ed. 801 et seq.; and see Liverpool Marine Co. v. Wilson, (1872) 7 Ch. 507, 512; 41 L. J. Ch. 798.

(a) Moxon v. Berkeley Mut. Benefit Bldg. Soe., (1890) 59 L. J. Ch. 524 ; per Kay, L. J., in Flint v. Howard, 1893, 2 Ch. 54, 73 ; 62 L. J. Ch. 804, 813; Baglioni v. Cavalli, (1901) 49 W. R. 236.

(b) Vint v. Tadget, (1858) 2 D. & J. 011 ; Fledge v. Cart, 1894, 2 Ch. 328 ; 63 L. J. Ch. 651 ; aff., 1895, 1 Ch. 51 ; 04 L. J. Ch. 51; and in the but only where default

The right to consolidate two or more securities from the same mortgagor arises not only where the action is for redemption, but equally in a foreclosure action (g), on the ground that the latter action is in its nature a claim that the owner of the equity of redemption shall exercise his equitable right then or never. But in order to enable the mortgagee to bring an action and to consolidate there must be two debts due, and two estates in respect of which there is only an equitable right in the debtor to redeem; and that cannot apply to a case where as regards one of the securities there has been no forfeiture at all, where the debt is not due, and where as regards that estate and that security - an independent security - steps could not be taken, as against the owner of the equity of redemption, to bring him into court, and to call upon him to redeem or be foreclosed (h). And it is essential to the doctrine that both mortgages should be united in one hand; it is not sufficient that A. and B. should be jointly entitled to one and A. solely to another (i).

Arises in foreclosure and redemption actions;

House of Lords, under the name of Pledge v. White, 1896, A. C. 187 ; 65 L. J. Ch. 449, see the judgment of Lord Davey, where the extent of the doctrine and the cases here cited are fully considered.

(c) S. 17.

(d) Jennings v. Jordan, (1881) 6 A. C. 698, 701 ; 51 L. J. Ch. 129.

(e) lb.

(f) barter v. Cohnan, (1882) 19 Ch. D. 630 ; 51 L. J. Ch. 481 ; Minter v. Carr, 1894, 3 Ch. 498; 63 L. J. Ch. 705 ; Pledge v. White, 1896, A. C. 187 ; 65 L. J. Ch. 449 ; and cases there cited; and see Coote on Mortgages, 7th ed. p. 876 etseq.

(g) Selby v. Pom/ret, (1861) 3 D. F. & J. at p. 598. is made on both securities.

However, where the mortgages or one of them are or is made after 1881, the old equitable doctrine of consolidation does not apply, unless it forms a term of the contract between the parties that it shall do so, notwithstanding the statute. In the absence of the expression of such an intention (k) in the mortgage deeds or one of them (/), a mortgagor (which expression includes any person from time to time deriving title under the original mortgagor) seeking to redeem is entitled to do so without paying any money due under any separate mortgage made by him, or by any person through whom he claims, on property other than that comprised in the mortgage which he seeks to redeem (m). And the section applies not only to the debts, but also to the costs of an action to foreclose two separate mortgages. Thus, in an action to foreclose two mortgages which are not liable to be consolidated, the whole of the costs cannot be charged against each estate, because that would amount to a consolidation as to costs; but each estate must bear the costs of the foreclosure and redemption so far as they were attributable to itself (n).

Effect of Conv. Act, 1881.

Extends to costs as well as to debts.

(h) Cummins v. Fletcher, (1880) 14 Ch. D. G99, 712, per Cott'm, L. J. ; 49 L. J. Ch. 563 ; Re Raggett, (1880) 16 Ch. D. 117; 50 L. J. Ch. 187.

(i) Riley v. Hall, (1898) 79 L. T.241.

(k) See Bird v. Wenn, (1886) 33 Ch. D. 215; 55 L. J. Ch. 722 ; Farmery. Pitt, 1902, 1 Ch. 954; 71 L. J. Ch. 500.

(1) See Andrews v. City Benefit

Bldg. Soc., (1881) 44 L. T. 641 ; Griffith v. Pound, (1889) 45 Ch. D. 553 ; 59 L. J. Ch. 522 ; Re Salmon, 1903, 1 K. B. 147; 72 L. J. K. B. 125.

{m) Conv. Act, 1881, s. 17.

(n) De Caux v. Skipper, (1886) 31 Ch. D. 635, overruling Clapham v. Andrews, (1884) 27 Ch. D. 679; 53 L. J. Ch. 792.

If A. and B. simultaneously purchase estates X. and Y., with notice of a common charge, supposed to be invalid, but which eventually proves not to be so, and without making any provision for such a contingency, such charge, it is conceived, would, as between the purchasers, be borne by the two estates, in shares proportioned to their respective values at the date of the purchase.

Purchaser subject tocommon charge supposed to be invalid.

We have already referred to the provisions usually made for the apportionment of a fee-farm rent or rent-charge, or of the rent and liabilities under a lease on the sale of freeholds or leaseholds in lots (o); and to the provisions of the Apportionment Acts (p).

Fee-farm rents, etc.