Wood borrowed money from Austen to complete the purchase of an advowson, covenanting that he would within six months complete the purchase and give a legal mortgage to secure the loan. Two years later, Austen not having required the delivery of the title deeds or taken any other steps to perfect his security, Wood completed the purchase and obtained the deeds, and after another four months had passed he deposited the deeds with the defendants as security for a loan. The defendants had no notice of the prior equitable mortgage. Austen had taken no steps to possess himself of the deeds over a long period of time.
Held: Though Malins VC did not found himself on this delay, saying, at 406: ‘I have not a shadow of doubt that where there is merely an equitable mortgage . . ., in every case where the equitable mortgagee either omits to get, or having got, gives up possession of the deeds, he must always be postponed.’
Where two equities are equal, possession of the title deeds gives priority.
Judges:
Malins VC
Citations:
(1867) LR 4 Eq 397
Equity, Land
Updated: 11 May 2022; Ref: scu.554687
