No. XIV.

DECREE FOR BILL ON SALE BY MORTGAGEE,

IN THE ADMINISTRATION OF ASSETS.

[The defendant John Geary, the infant, was the heir at law of the testator. The defendant Elizabeth Geary was devisee of his real estate and his executrix.]

His Honour doth declare the said testator's will and codicil to be well proved &c. [See Decrees respecting Real Assets, No. I. ante.] And that it be referred to Mr. E. one &c. to take an account of what is due to the plaintiff for principal money, and interest on his said mortgage, and to tax him his costs of this suit. For the better taking of which accounts &c. [See Usual Directions, No. II. ante.] And it is further ordered and decreed, that the lands comprised in the plaintiff's said mortgage be sold &c. [See Usual Directions, No. VI. ante.] And out of the money arising by such sale the plaintiff is, in the first place, to be paid what shall be reported due to him for principal, interest, and costs as aforesaid; and in the next place, the defendant the infant is thereout to be paid his costs of this suit, to be taxed by the said Master. And if there shall then remain any surplus thereof, the same is to be paid to the defendant Elizabeth Geary, the executrix of the said testator. But in case the money to arise by the said sale shall not be sufficient for the purposes aforesaid, then his Honour doth declare that the plaintiff is entitled to come in and receive a satisfaction for such deficiency out of the said testator's assets, in a course of administration; and in such case the plaintiff the infant is to be paid his said costs out of the said testator's personal estate. Geary v. Geary, M. R. 7th May, 1747. Reg. Lib. A. 1746. fol. 376.

NOTE.

Decree for Sale.

Upon a bill by a mortgagee, where the mortgagor makes default, a sale will be directed instead of a foreclosure. How v. Vigures,

1 Ch. Rep. 33.

1746. fol. 544.

Hall v. Baker, M. R. 19th July, 1747. Reg. Lib. A.

So upon a decree pro confesso against the mortgagor. Dashwood v. Bithazey, Mos. 196.

So upon a bill by the mortgagee for the administration of the assets of the mortgagor, a sale will be directed, and payment of the deficiency out of the assets. Geary v. Geary, supra. Daniel v. Skipwith, 2 Bro. 155. And see Harris v. Harris, 3 Atk. 722. Mondey v. Mondey, 1 V. & B. 223. Bowen v. Prentis, L. C. 9th November, 1747. Reg. Lib. A. 1747. fol. 113.

So where the defendant is an infant, see Decrees respecting Infants, No. VI. post.

It seems that in the case of the mortgage of a West India estate, a sale may be directed on a bill by the mortgagee. See what is said by Mr. Bell, in Beckford v. Kemble, 1 S. & S. 15.

That in Ireland a sale is decreed instead of a foreclosure. See Perry v. Barker, 13 Ves. 205.

So in bankruptcy, see Lord Roslyn's order, 8th March, 1794. 2 C. B. L. 290.

Whether, where the security is deficient, a sale may be decreed instead of a foreclosure, qu. See Dashwood v. Bithazey, supra, and cases there cited. Earl of Kiunoul v. Money, 3 Swan, 208. note. Coote on Mortgages, p. 513.

In Lucas v. Seale, 2 Atk. 56. it is said, that where an executor is indebted to the testator on mortgage, the other executors may bring a bill for a sale. But no decree will be made until it has been ascertained whether the mortgage is a sufficient security. S. C. 1 West, 556.

In Burney v. Morgan, 1 S. & S. 362. it is said that a mortgagee has no common interest with the creditors at large, and cannot sue on their behalf. But that a mortgagee may sue as a specialty creditor on behalf of himself and others. See Harris v. Harris, supra. Bowen v. Prentis, supra.

For further as to sale on bill by mortgagee. See Decree on Bill by Equitable Mortgagee, No. XVIII. post. And Decree establishing Lien, No. XVI. post.

No. XV.

DECREE FOR FORECLOSURE &c. WHERE ONE MORTGAGOR A SURETY.

[The plaintiff and Duncombe were co-trustees, of whom the plaintiff was the survivor. They were entitled to a mortgage from James Whiteley, which was further secured by a mortgage from Joseph Whiteley. The equity of redemption in the first mortgage was vested in the defendant Micklethwaite; and that in the second, in the other defendants. The decree is, that the parties claiming under either mortgagor should redeem or be foreclosed. In case the party claiming under the original mortgagor should redeem, that the plaintiff should reconvey the premises comprised in each mortgage to the parties claiming under each of the mortgagors respectively. But in case the parties claiming under the surety should redeem, that the plaintiff should convey the premises comprised in both mortgages to the parties claiming under the surety.]

This Court doth order and decree, that it be referred to Mr. S. one &c. to take an account of what remains due to the plaintiff for principal and interest, in respect of his mortgage of 25001. in the pleadings mentioned, secured by the several indentures therein set forth, bearing date respectively &c. and to tax the costs of the plaintiff in this court, and at law. And it is ordered, that the said Master do take an account of the rents and profits of the mortgaged premises, comprised in the indenture first stated in the plaintiff's bill, dated &c. received by the plaintiff and the said H. Duncombe, deceased, or either of them, or by any other person &c. [See Decree for Redemption, No. IV. ante.] And it is ordered, that what on taking the said accounts shall appear to have been received for the rents and profits of the said mortgaged premises, be deducted from what the said Master shall find due to the plaintiff, for principal, interest, and costs, as aforesaid. And upon the defendant Thomas Micklethwaite, or the defendants Jonathan Lupton and Obadiah Brook, paying unto the plaintiff what shall be remaining due to him for principal, interest, and costs, as aforesaid, within six

calendar months after the said Master shall have made his report, at such time &c. it is ordered that the plaintiff do convey the mortgaged premises in the manner following, viz. In case the said defendant Thomas Micklethwaite, shall redeem the plaintiff as aforesaid, that the plaintiff do convey the mortgaged premises comprised in the indenture first stated in the plaintiffs bill, bearing date &c., free &c. and deliver up all deeds &c. to the defendant Thomas Micklethwaite, or as he shall appoint. And it is ordered, that the defendant do also convey the mortgaged premises comprised in the indenture secondly stated in the plaintiff's bill, bearing date &c., free &c. and deliver up all deeds &c. to the said defendants Jonathan Lupton and Obadiah Brook, or as they shall appoint. But in case the said defendants, Jonathan Lupton and Obadiah Brook, shall redeem the plaintiff as aforesaid, then it is ordered that the plaintiff do convey the mortgaged premises comprised in each of the said several indentures of &c. free &c. and deliver up all deeds &c. to the defendants Thomas Lupton and Obadiah Brook, or as &c. But in default of the defendant Thomas Micklethwaite, or the defendants Jonathan Lupton and Oabdiah Brook, paying unto the plaintiff what shall be remaining due to him for principal, interest, and costs as aforesaid, by the time aforesaid, the said defendants are from thenceforth to stand absolutely debarred and foreclosed &c. [See Decree for Foreclosure, No. I. ante.] and for better taking the said accounts &c. [See Usual Directions, No. II. ante.] And any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Becket v. Micklethwaite, V. C. 26th Janury, 1821. Reg. Lib. A. 1820. fol. 871. S. C. 6 Mad. 199.

NOTE.

This decree was directed by the V. C. to be drawn up according to a precedent settled by himself. See the report of the case.

No. XVI.

DECREE ESTABLISHING LIEN ON REAL ES

TATES.

[Inter alia] His Lordship doth declare that the plaintiff has a lien upon the reversion of the said freehold, copyhold, and leasehold estates for the money paid by the plaintiff to John Manners or his representatives, in discharge of the several bonds entered into by him and John Martindale in the bill named, bearing date &c. to the said John Manners, and doth order and decree the same accordingly. And it is ordered that it be referred to Mr. P. one &c. to take an account of what is due to the plaintiff for principal and interest of the money so paid by the plaintiff in satisfaction and discharge of the said bonds. And it is ordered that the defendant do pay to the plaintiff what shall be reported due to him within one month after the Master shall have made his report. And in case the defendant shall not pay to the plaintiff what shall be reported due to him on the said account within the time so limited for the payment thereof, it is ordered that the money which shall be so reported due to the plaintiff be raised by mortgage or sale of the said freehold, leasehold, and copyhold estates, with the approbation of the said Master and as he shall direct; and in case the said money shall be raised by sale, it is to be to the best purchaser &c.; and all proper parties are to join in such mortgage or sale as &c. and are to produce &c. [See Usual Directions, No. VI. ante.] And it is ordered that the money to be raised be paid into the Bank in the name and with the privity &c. [See Usual Directions, No. X. ante.] And it is ordered that the money so to be raised be applied in payment of what shall be found due to the plaintiff as aforesaid. And for the better taking of the accounts before directed &c. [See Usual Directions, No. II. ante.] And his Lordship doth not think proper to give costs on either side to the hearing of this cause, but this is to be without prejudice to Sir Robert Mackreth having his subsequent costs as a mortgagee. And his Lordship doth reserve

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