References: [1742] EngR 130, (1742) 2 Atk 444, (1742) 26 ER 668
Links: Commonlii
Coram: Lord Hardwicke LC
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a settlement.
Lord Hardwicke LC said: ‘Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien . . Suppose a person, who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons . .’
This case is cited by:
- 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 . .