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Decisions of the Superior Courts of New South Wales, 1788-1899

Smith v Dower (1831) NSW Sel Cas (Dowling) 492; [1831] NSWSupC 83

mortgage, enforcement of - contracts, interpretation of

Supreme Court of New South Wales

Hearing, 19 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 97]

Saturday 19th November 1831

Smith v Dower

This was an action of debt on a mortgage deed.  The declaration; affecting to set forth the legal import of the deed averred that on the 26th March 1830.  the defendant acknowledged himself to be indebted to the Plaintiff in the sum of £155. with interest and that he covenanted and promised to pay to the said Plaintiff the said sum of 155£ on requests.  Plea non est factum with a notice of sett off.  At the trial before Stephen J last term the mortgage deed was produced in evidence.  It recited that upon  settlement of accounts between the Plaintiff and the Defendant, he the Defendant stood indebted to the Plaintiff in the sum of £155 and that whereas for securing the said sum he the defendant had proposed to assign unto the Plaintiff a leasehold interest.

Vide Vol 66. p.39.[1 ]

Source: Dowling, Proceedings of the Supreme Court of New South Wales, vol. 61, Archives Office of New South Wales, 2/3244

[p. 38] This was an action of debt on a mortgage deed.  The declaration, affecting to set forth the legal imports of the deed, averred that on the 26th March 1830 the Deft acknowledged himself to to [sic] be indebted to the plf the sum of 155£ with interest & that he covenanted & promised to paid to the sd plf the said sum of 155£ on request.  Plea non est factum, with a notice of set off.  At the trial before Stephen J. last term, the mortgage deed was produced in evidence.  It recited that upon a settlement of accounts [p. 39] between the plf & the deft, he, the deft, stood indebted to the plf. in the sum of 155£, & that whereas for securing the s.d sum; he the deft had proposed to assign unto the plf a leasehold interest in consideration of the sum of 5£ then in hand paid, the Deft had bargained, sold, and demised unto the plf. his [?] 600 acres of the said land to have & to hold the land for the remainder of a term of 99 years, with a proviso, & condition, that he the s.d Deft should well & truly pay or cause to be paid the said sum of 155£ together with interest at the rate of 10£ per cent per annum - on every 100£; & that upon payment of same, the s.d indenture was to become absolutely void. -  The deal fixed no time at which the money was to be paid, nor was there any stipulation that it should be repaid upon request.  It was therefore contended the plf must be non suited on two grounds 1st, for a variance between the declon & the deed, in as [p. 40] much as the former averred a promise to pay on request, whereas the deed itself made no stipulation that the money was to be repaid upon request; & that at all events a request being averred it must be proved & secondly that the deed itself having fixed no time in the proviso for the repayment of the money no action wd lie upon the covenant.  The learned judge over-ruled both objections and the plf had a verdict.  On a former day in this term a new trial was moved for on the ground of misdirection.  Cause being shewn against the rule, the Court took time to consider of its judgement.

We have considered the cases & are of opinion that a new trial ought to be granted.  There is no doubt of the general soundness of the doctrine laid down in Seddon v Senate 13 East. 74. that the same sense is to be put upon the words of a contract in an instrument under seal, as would be put upon the same words [p. 41] in any instrument not under seal; for the same intention must be collected from the same words of a contract in writing whether with or without seal.

The first question for our consideration is whether the introduction into this declaration, of an averment that the deft promised to pay the money "on request" is such a variance from the deed itself, as puts the plf out of count.  This being an action of debt on a specialty, & not merely assumpsit or indebitatus assumpsit, and the plf having undertaken to declare upon the legal effect of the mortgage deed, & having averred more than the deed contains as a part of the covenant, it appears to us, that the averment of a request in such a case is so material a departure from the legal effect of the instrument, as to constitute a fatal variance; but that at all events having averred a request in such a case, the plf was found to prove it.  There is no doubt that where it is essentially necessary by the terms of a contract that the deft should be requested to perform his part of the contract, such request being a condition precedent, it must be specially alleged in the declaration & proved.  Con. Dij.  Pleader C. 69. -  It is also a general rule that [p. 42] where a mere duty or sum of money which the deft bound to pay, is promised to be performed or paid on request, there needs no actual request; but where a collateral duty or sum is promised to be performed or paid on request there must be an actual request, Birks v Trippets 1 Saunders 33.a. or some averment to exercise it: Amory v Brodrick 5 B & A. 712. 1 D & R. 361. in which last case Abbolt CJ. said "A party is only bound to allege a request where the object of that is to oblige another to do something."  Thus where a person promises to pay on request money previously due the plf would not make or aver a request to pay Bull. N.P. 151.b.  The bringing of this action would in that case be a sufficient request.  But it has been holden in Simpson v Bouth 2 B & L. 885. that in debt on a [p. 43] single bond, for payment of money on request, such request is necessary.  Now in this case, there is no covenant to pay the money on request; but the plf having thought proper to aver a request he was bound to prove it before he could succeed in the action, even it if were brought prematurely.  It is said that the deft could not take advantage of this objection in the plea of non est factum.  There is no doubt he could.  In the first place the plf was bound to prove his whole declaration.  The declaration in setting forth the substance of the deed avers that the deft promised to pay the money "on request".  Now there was no such condition in the covenant, & consequently it was not the defts deed, for he did not covenant to pay on request.  If the deed contained such a covenant, probably the bringing of the action wd be a sufficient request, and enough to support the averment of a request, there being a previous acknowledgment in the deed of a debt being one.  But then the second question is whether [p. 44] the plf could forthwith bring an action of debt on the covenant contained in this instrument?  It is true that there is a distinct acknowledgment in the recital of a debt of 155£ being due to the plf, but it appears to me that the plf by accepting the mortgage of the land therein mentioned his right to sue for the debt is postponed to a period to be fixed by another tribunal - namely a Court of Equity.  The condition of the parties is thereby changed.  By taking the mortgage as a collateral security, it ceases to be a debt in proscuti.  It is like extending the time of credit, & giving a longer day of payment, upon a condition which the deft may be enabled to perform.  It is true that there is no fixed time given for the payment of the money due with interest, but still the deft wd have a right to resort to a Court of Equity for relief, or even if the plf filed a bill of foreclosure, a Court of [p. 45] Equity would give the deft such a day of payment, or time to redeem the mortgage as seemed just and reasonable.  The very object of the mortgage was to give the deft time to repay the money at the price of interest at the rate of 10£, per cent, but if the plf could [?] sue upon the deed, the whole objet of it would be defeated.  It appears to me therefore that the plf cannot abandon his remedy in Equity, & resort at once to a Court of law to recover the debt, on a covenant which fixes no time for the payment of the money, & which is usually silent as to its repayment upon request.


[1 ] This reference should be to vol. 61.

Published by the Division of Law, Macquarie University