A was indebted l1500 whereof l500 was secured by mortgage, the residue by bond ; A, before his death makes a lease of all his lands to trustees for payment of his debts, which lease in the whole was worth about l1200 ; the heir of A. after his death, sells as much land as payeth l1400, whereof the mortgage for l500 was part (which was more than the value of the trust estate). Povye, who was a creditor for the other l100, brought his bill against the heir and the trustees, to have his debt satisfied out of this trust estate.
It was insisted for the heir, that, having paid as far as the value of the trust estate did extend, he ought not to have his lands charged any farther.
But it was ruled, that as the trust lands were not sufficient to satisfy the whole debt, the heir and the trustees and the mortgagee should not juggle together to cheat other creditors, by paying the mortgage first off ;(2) but on the contrary the trust lands should be applied in the first place for the other debts, because the mortgage could be at no damage, being secured by his mortgage; but on the contrary, if the mortgage should be first satisfied, the other creditors might lose their debts ; and so the plaintiff in this case had relief for his debt.
Citations:
[1680] EngR 191, (1680) 2 Freem Chy 51, (1680) 22 ER 1052 (B)
Links:
Jurisdiction:
England and Wales
Cited by:
Cited – Szepietowski v The National Crime Agency SC 23-Oct-2013
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 . .
Lists of cited by and citing cases may be incomplete.
Equity
Updated: 07 August 2022; Ref: scu.402402
