This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(h) Bumbold v. Forteath, (1857) 3 K. & J. 748.
And the heir-in-tail is entitled to the production of the instrument creating the entail (i).
In the case of mortgages made since 1881, the mortgagor, so long as his right to redeem subsists, is entitled, at reasonable times on his request and at his own cost, and on payment of the mortgagee's costs and expenses, to inspect the documents of title relating to the mortgaged property, notwithstanding any stipulation to the contrary (j). This provision does not apply to a deed made after, but subsidiary to a mortgage made before the Conv. Act, 1881 (k). Where the deeds handed over to the mortgagee relate to other land not included in the mortgage, then the mortgagee should give at the cost of the mortgagor an acknowledgment of the right of the mortgagor to production; otherwise a purchaser of the unencumbered land might find that he had no right to production.
Mortgagor, when entitled to production.
Where the mortgage was made before 1882, the mortgagee is not, in general, bound to produce the deeds until he is paid off (kk). But, unless protected by want of notice (l), he is no more able than his mortgagor to resist production (ll), though he would not be justified in producing the deeds without the latter's consent or an order of the Court (m).
The solicitor of a mortgagee has no lien upon the deeds, as against the mortgagor, to an amount exceeding what is due on the security (mm). So, the lien of the solicitor of an executor upon title deeds of a testator's leaseholds, is subject to the amount (if any) due from his client to the testator's estate (n). If the solicitor of the mortgagor induce the solicitor of the mortgagee to part with the deeds, by a verbal undertaking to pay a sum claimed to be due for costs, such undertaking will be enforced summarily upon motion (o); and it has been held that the lien of the mortgagor's solicitors upon the engrossment of the reconveyance was not prejudiced by their sending it to the mortgagee's solicitors, with a request that they would hold it for them subject to the lien; and a purchaser from the mortgagor was restrained from proceeding at Law for the recovery of the deed (p). The lien of a solicitor on the documents of a client in his possession, does not entitle him to refuse production to a third party, when production would be enforced if the client had the documents in his own possession (q).
Lien of solicitor.
(i) Shaftesbury v. Arrowsmith, (1798) 4 Ves. 66; Suffolk v. Howard, (1723) 2 P. Wms. 177; Bettison v. Forringdon, (1735) 3 P. Wms. 363.
(j) L. P. Act, 1925, s. 96 (1), replacing Conv. Act, 1881, 8. 16.
(k) Burn v. London and S. Wales Coal Co., (1890) W. N. 209.
(kk) See Sparks v. Montriou, (1835) 1 Y. & C. 103; Darner v. Lord Portarlington, (1846) 15 Si. 380; see 2 Ph. 30; Cannock v. Jauncey. (1853) 1 Dr. 497, 507; Smith v. Pawson, (1855) 25 L. T. O. S. 40; Chichester v. Marq. of Donegall, (1870) 5 Ch. 497; cf. Patch v. Ward. '1865) 1 Eq. 436.
(l) Wallwyn v. Lee, (1803) 9 Ves. 24; Joyce v. Be Moleyns, (1845) 2 J. & L. 374; Heath v. Crealock, (1874) 10 Ch. 22; cf. Newton v. -V.. (1868) 4 Ch. 143.
(ll) Balls v. Margrave, (1841) 4 Beav. 119; Hercy v. Ferrers, (1841) ib. 97; Molesworth v. Robbins, (1845) 2 J. & L. 358.
(m) Lambert v. Rogers, (1817) 2 Mer. p. 490; Gough v. Offley. (1852) 5 De G. & S. 653.
(mm) Hollis v. Claridge, (1813) 4 Taun. 807; Wakefield v. Newbon, (1844) 6 Q. B. 276; Rider v. Jones, (1843) 2 Y. & C. C. C. 329; Pelly v. Wathcn, (1851) 1 D. M. & G. 16; Hope v. Liddell, (1855) 7 D. M. &
Effect on right to production.
A mortgagee who consents to a sale by the Court must bring the deeds into Court in the usual way (r); and it is conceived that, in an ordinary case, a mortgagee who has permitted a mortgagor to sell under the expectation of his concurrence, would not be allowed to stop the sale by refusing to produce the deeds before actual payment (s).
Exceptions from rule.
A mortgagee who has, even though insane, destroyed (t), or negligently lost (u) the documents of title, will, it seems, be compelled to replace such as can be replaced; and as-respects originals, which cannot be replaced, will be required either to give an indemnity, or to make compensation for the damage thereby done to the estate; but a mortgagee taking the same care of the deeds forming his security as he took of his own, ought not, it would seem, to be severely dealt with if they are accidentally lost (x). His bond has been held a sufficient indemnity to the owner of the equity of redemption (y); and if such a bond and a reconveyance be executed by the mortgagee, the mortgagor can be compelled to pay the amount due (z). A mortgagee is not responsible for the loss of deeds deposited with his solicitor without his consent (a). It has been held in Ireland that there is no implied covenant on the part of a mortgagee to take reasonable care of the title deeds during the continuance of the security, the decisions in the cases above cited being referable to the jurisdiction of Courts of Equity to give relief in cases of accident (b).
Liability of mortgagee for loss or destruction of deeds.
G. 331; Re Llewellin, 1891, 3 Ch. 145. For cases of bankruptcy, sec Ex p. Fuller, (1881) 16 Ch. D. 617; Be Humphreys, 1898, 1 Q. B. 520; Re Turner, 1907, 2 Ch. 126, 134, 539.
(n) Turner v. Letts, (1855) 20 Beav. 185; 24 L. J. Ch. 638.
(o) Re Gee, (1848) 2 D. & L. 997; 10 Jur. 694; see, in Equity, Gilbert v. Cooper, (1846) 15 Si. 343, rev. 647; 17 L. J. Ch. 265; Cordery on Solicitors, 3rd ed. pp. 150 et seq. Delivery up of papers will not be ordered while a suit is pending the coats of which have not been paid by his client; Ex p. Jarman, (1877) 4 Ch. D. 835; 46 E. J. Ch. 485.
(p) Watson v. Lyon, (1855) 7 D. M. & G. 288; 24 L. J. Ch. 754; Newton v. Beck, (1858) 3 H. & N. 220; 27 L. J. Ex. 272.
(q) Re Hawkes, 1898, 2 Ch. 1; 67 L. J. Ch. 284, and cases there cited; see Re Bramble, (1880) 13 Oh. D. 885; 42 E. T. 413, as to right of client's trustee in bankruptcy to production.
(r) Livesey v. Harding, (1839) 1 Beav. 343.
(s) See Crosse v. Reversionary Society, (1853) 3 D. M. & G. at p. 712; 2 Eq. R. 579.
(t) Hornby v. Matckam, (1648) 16. Si. 326; 17 L. J. Ch. 471; Brown v. Sewell, (1853) 11 Ha. 49; 22 L. J. Ch. 1063.
(u) Lord Midleton v. Eliot, (1847) 15 Si. 531.
A mortgagee or transferee of a mortgage on being paid off has no right to keep copies of the mortgage deed or deed of transfer; but whatever copies he has, as a general rule, are copies properly paid for by the mortgagor, and are to be delivered up to him when he pays off the mortgage; and no costs of copies will be allowed (c). The reason of this rule apparently is, that the mortgagee stands in a fiduciary position subject to his right to payment, and therefore will not be allowed to say that the copies were made for any other purposes than those of the security.
Mortgagee has no right to copies.
By the L. P. Act, 1922, s. 128, all copyhold land is converted into freehold land, subject as mentioned in the
Production of Court Rolls.
(x) Woodman v. Higgins, (1850) 14 Jur. 846; James v. Rumsey, (1879) 11 Ch. D. 398; 48 L. J. Ch. 345; Price v. P., (1845) 15 L. J. Ch. 13.
(y) Shelmardine v. Harrop, (1821) 6 Mad. 39; and see for a form of bond, lb. 41, n.; Seton, 7th ed. 2228.
(z) Stokoe v. Robson, (1814) 19 Ves. 385; Smith v. Bicknell, (1805) 3 V. & B. 51, n.; Shelmardine v. Harrop, sup.
(a) Rhodea v. Moules, 1895, 1 Ch. 236; 64 L. J. Ch. 122.
(b) Gilligan and Nugent v. National Bank, (1901) 2 Ir. R. 513.
(c) Re Wade and Thomas, (1881) 17 Ch. D. 348; 50 L. J. Ch. 601.
12th Sched. to that Act. By 8. 144a (cc), all manorial documents are to be under the charge of the Master of the Rolls (8ub-s. (1)); but save as thereinafter provided, they are to remain in the possession or under the control of the lord of the manor (sub-s. (2)). The Master of the Rolls may direct any manorial documents which, in his opinion, are not being properly preserved, or which he is requested by the lord of a manor to deal with under this sub-section, to be transferred to the Public Record Office, or to any public library, or museum, or historical or antiquarian society, and the governing body thereof is thereafter to have the custody and to be responsible for the proper preservation thereof (sub-s. (4)). But the lord of the manor is to remain entitled to have the manorial documents produced to him, or in accordance with his directions, free of cost (sub-s. (5)). Any person interested in land enfranchised may, on payment of the fee prescribed by the Lord Chancellor, inspect at any reasonable hour any Court Rolls of the manor of which the land was held; and, for the purposes of the Evidence Act, 1851, the Court Rolls (whether before or after the manorial incidents have become extinguished) are to be deemed to be documents of such a public nature as to be admissible in evidence on their mere production from the proper custody (d).
The Court has certain statutory powers (e) to compel production and inspection of documents; and, further, powers are given to the Court under the Companies (Consolidation) Act, 1908 (f), after a winding-up order has been made, to compel the production of documents relating to the company (g).
Statutory right to production.