It is an incident of a mortgage of chattels and choses in action that the mortgagee has a power of sale exercisable if the defendant fails to pay the monies due on the day fixed for payment or where no day is fixed after a proper demand and notice has been given and a reasonable time has elapsed. However: ‘Now the defendants, being mortgagees, have in equity, notwithstanding their title to the shares, no estate sufficient to enable them to sell, and thus exclude the mortgagor from his equitable right to redeem unless there is either an express or an implied power of sale in the mortgage.’ There are circumstances in which a power of sale will be implied at common law into a mortgage. A pledgee also has an implied right of sale at common law upon the default of the pledgor.
Lord Justice Vaughan Williams, Lord Justice Stirling and Lord Justice Cozens-Hardy
[1902] 1 Ch 579
England and Wales
Cited by:
Cited – Swift and Another v Dairywise Farms Limited and others CA 1-Feb-2001
The company lent money to farmers secured against their milk quotas. They had to petition for a winding up, and the liquidators requested authority to continue the milk loan repayment schemes. The milk quotas had been vested in the farmers, and the . .
Lists of cited by and citing cases may be incomplete.
Equity
Updated: 28 November 2021; Ref: scu.182800
