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.
Practical inconveniences resulting from the doctrine.
(t) Lewis v. Duncombe, (1855) 20 Beav. 398.
(tt) 15 Sim. 128.
(u) Younghmband v. Gisborne, (1846) 1 De G. & S. 209.
(x) 1 K. & J. 313 ; and see Clare v. Wood, (1844) 4 Ha. 81.
(y) Alison v. Holmes, (1861) 1 J. & H. 630 ; 30 L. J. Ch. 564.
Partially remedied by the Judgments Act, 1855, s. 11.
This enactment, it will be observed, does not expressly provide for the several cases of Crown debts and liabilities and judgments affecting annuitants, legatees, judgment creditors themselves, vendors claiming a lien in respect of unpaid purchase-money (z), and all other persons having pecuniary charges upon land, except mortgagees; but there can be little or no doubt that persons claiming, not as mortgagees strictly so called, but under securities by way of conveyance in trust to sell, or operating only to create a charge or incumbrance, without conferring any right of foreclosure (a), come within its provisions. Doubts may, however, be suggested whether it provides for the simple case of paying off a mortgage, without reference to a sale or a re-mortgage ; or for the case of a transfer, where the mortgage is not paid off, but the debt is assigned and kept on foot; or for the case of judgments against a puisne mortgagee whose concurrence is required to a sale of part of the land, although the purchase-money is received by the first incumbrancer; or for the case of a mortgagee releasing part of the land in consideration of a substituted security being given for the debt, or in reliance on the sufficiency of his remaining security. It is conceived that a sale by a mortgagee, under his power of sale, of part of the land, when the sale realizes only a portion of the mortgage debt, is within the enactment; as the mortgagee would in fact he paid off, qua the particular land comprised in the sale. It has been held under this section that, whether the mortgage be prior or subsequent to the passing of the Act, a purchaser in good faith acquires a valid title as against registered judgment creditors of the mortgagees, provided that the mortgage be paid off previously to, or at the time of, the execution of the conveyance (b). Notwithstanding these doubts the practice is to search against mortgagees, who sell or concur in the conveyance, only for lis pendens for five years.
Remarks on the Judgments Act, 1855.
(z) See and consider Hood v. H., (1857) 3 Jur. N. S. 684 ; 26 L. J. Ch. 616 ; and the similar wording of the Real Estato Charges Act,
(a) See Bell v. Carter, (1853) 17 Beav. 11; 22 L. J. Ch. 933; Re Underwood, (1857) 3 K. & J. 745.
A judgment entered up against the vendor after a contract for sale, as formerly, may be enforced against the unpaid purchase-money; though execution cannot be levied upon it (c) ; and, upon a sale by a mortgagee, the surplus proceeds of sale may be resorted to for the discharge of judgments entered up against the mortgagor subsequently to the mortgage (d).
Judgment is a charge on unpaid purchase-money, etc.
A judgment creditor is not a purchaser for value within 27 Eliz. c. 4, so as to avoid a prior voluntary settlement (e).
Not a sale for value within 27 Eliz. c. 4.
Nor does a judgment operate as a charge upon an ecclesiastical benefice; the words "rectories and tithes," in ss. 11 and 13 of the Judgments Act, 1838, having reference only to lay rectories and tithes (f).
Not a charge on an ecclesiastical benefice.
(4) Greaves v. Wilson, (1858) 25 Beav. 434 ; 28 L. J. Ch. 103.
(c) Brownv. Perrott, (1841) 4 Beav. 585. As to the effect of the appointment of a receiver on a purchaser's interest in land, where the contract was rescinded before the receiver had given security, see Ridout v. Fowler, 1904, 2 Ch. 93; 73 L. J. Ch. 679.
(d) Robinson v. Hedger, (1850) 14 Jur. 784 ; 19 L. J. Ch. 463.
(e) Beavan v. Lord Oxford, (1856) 6 D. M. & G. 507 ; 24 L. J. Ch.
311; 25 ib. 299; Godfrey v. Poole, (1888) 13 A. C. 497 ; 57 L. J. P. C. 78; see, as to Ireland, the Judgments (Ireland) Act, 1849, s. 6 ; and see now the Voluntary Conveyances Act, 1893.
(/) Hawkins v. Gathercole, (1855) 6 D. M. & G. 1 ; 24 L. J. Ch. 232 ; Long v. Storie, (1849) 3 De G. & S. 308; Cottle v. Warrington, (1833) 2 N. & M. 227; Rates v. Brothers, (1854) 2 Sm. & G. 509 ; 23 L. J. Ch. 150, 782 ; Wise v. Beresford, (1843) 3 D. & War. 276.
But a judgment on a bond of a municipal corporation will operate as a charge on all lands and hereditaments of the corporation (g).
"When it is said that a judgment operates as a charge upon land, what is meant is, that where a debtor has merely a modified or qualified interest in the lands, - as where he holds them wholly or in part as a trustee or subject to any previous incumbrance, whether legal or merely equitable, - the judgment must be considered as the statutory equivalent to his written agreement to charge not the lands themselves, but merely that which he may rightfully charge, viz., his beneficial interest (if any) in them; so that the judgment creditor, though he subsequently acquires the legal estate, is postponed to a beneficiary, or a prior equitable incumbrancer who advanced his money upon the security of the specific property (h).
A charge on municipal lands.
Judgment creditor cannot get a better title than his debtor.
In one case (i) it was held that judgment creditors, whose judgments were not a charge on the land at the date of the decree in a foreclosure suit, were entitled to redeem a mortgage having priority to their debt if within the six months allowed for redemption they issued writs of elegit; but, in a later case (/>•), this decision was disapproved; and it was held that judgment creditors who had not issued execution were not necessary parties to a foreclosure suit.
Where judgment creditor, prior to registration, has notice of a charge.