References: [1803] EngR 542, (1803) 8 Ves Jun 382, (1803) 32 ER 402 (B)
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that estate after the death of the mortgagor. But it is the ordinary case to say a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him, who has two funds, upon that, which can be affected by him only; to the intent that the only fund, to which the other has access, may remain clear to him.’
This case is cited by:
- Cited – Serious Organised Crime Agency -v- Szepietowski and Others ChD (Bailii, [2010] EWHC 2570 (Ch), [2010] NPC 101, [2011] Lloyd’s Rep FC 81)
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . . - Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .
