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

Blackman v. Challinor [1838] NSWSupC 60

equity procedure - mortgage, foreclosure - succession - infancy, equitable jurisdiction - Willis J., attitude to equity

Supreme Court of New South Wales

Willis J., 22 June 1838

Source: Sydney Herald, 25 June, 1838[ 1]

In Equity. - Before Mr. Justice Willis.

Blackman v. Challiner - his Honor said this was a Bill of Foreclosure against the infant heir of the mortgager, by the assignee of the original mortgagee.  Before I proceed, I beg to be understood, that in consequence of what appear to me to be irregularities, which have crept into the proceedings of this Court in the exercise of it Equitable Jurisdiction, I shall henceforth whenever I am called upon for a decision, make myself acquainted with all the previous proceedings, and explain, as far as I am able, the principles and the practice with reference to those principles, on which my opinion is founded.  I must here allude to a case of a similar nature to the present, that came before the Court on Saturday last, in which I made some observation.  It does not appear in that case from anything on the face of the proceedings, that the sale which was directed was for the benefit of the infant, nor was there in fact any previous reference to inquire whether it was so or not.  From what I learnt, however, I am convinced that it the most beneficial course that could have been pursued, and that the parties are much indebted to the gentlemen, who from motives of charity conducted the suit.  Believing, therefore, that substantial justice was done, and as the infant has be the decree, a day given him to shew cause against it, when of age, if he think fit, I acquiesced in the motion.  But to revert to the case before me, the first thing to be considered in a suit in Equity is, whether all necessary parties are before the Court.  In this case I think the assignee of the original mortgagee is according to the Bill, is the only proper defendant.  Had there been several mesne assignments of the mortgage, and the mortgager a party to them, or had he declared what was due, it might have been otherwise; although the heir of the mortgager, against whom the Bill is filed, is intitled [sic] to have recourse to the personal assets of his ancestor for payment of this debt, yet it is held that on a bill of foreclosure against the heir of the mortgager, it is not necessary to make the executor a party.  The heir is left to his remedy against the executor, and the estate, or pledge, may be followed by the mortgagee in the hands of the heir.  If, indeed, the heir and personal representative of the mortgager, after his death prove insufficient for the payment of the debt; then the mortgagee may prove a sale of the mortgaged premises in the first instance; which forms one of the exceptions to the general rule in suits for foreclosure.  Thus much then with regard to the parties; now with respect to the decree.  When, as in this case, a bill of foreclosure is brought against an infant, it is usual to decree a foreclosure with a day to shew cause when he becomes adult; for an infant, (as I have formerly had occasion to state,) cannot be absolutely foreclosed, but the Court, in case the mortgagee consents to a sale, will direct an inquiry to ascertain whether it will be for the infant's benefit. I am aware that there are notes of cases in the Registrar's Books in England, where it appears a sale has been decreed against an infant without a previous reference to the master as to its advantage to the infant, and without it being stated to be consented to by the mortgagee; but such is not the practice, and I should be sorry to adopt a course so contrary to the reported and established cases.  I apprehend, however, even in the particular cases the notes of which I have alluded to, the Court must have been satisfied, and that it was made apparent on the face of the proceedings, that the sale was for the benefit of the infant.  I have already said when there is a decree of foreclosure against an infant, a day is given him by the decree to shew cause against it when he is of age; the infant, however, is not permitted in shewing cause to unravel the accounts; nor is he entitled to redeem by paying what is reported due, but can only shew error in the decree.  I must, however, observe that according to the case of Napier v. Effingham, (reported in 2 P. William's, 401, and also in 4 Brown's cases in Parliament, 340,) "where there is a decree Nisi Causa against an infant, he may, upon coming of age, and before the decree is made absolute, put in another answer, (the answer of his guardian not being binding upon him), make a defence, and examine witnesses anew."  Had the present suit been the ordinary case of a bill of foreclosure by the mortgagee, against the mortgager, there would have been no necessity (if the defendant admitted the right of the plaintiff to redeem) to have set down the cause for hearing.  In such a case the defendant, generally speaking, may at any time, even before answer, upon motion, obtain such order as the Court would make on the hearing. I beg it to be understood, therefore, inasmuch as the course I have mentioned saves considerable expense and delay; that the Court will expect it to be followed in a all such cases as the established practice will permit.  As I understand the mortgagee in this case consents to a sale, I must direct a reference to the master to inquire if it will be for the infant's benefit.  There is the proper form of the decree in this case in Mr. Seton's book of Forms and Decrees in Equity, p 274.  I would remark, however, that the decree absolute, when made, should repeat the clause nisi giving six months after being of age to shew cause, as the infant is entitled to a day to shew cause against making the foreclosure absolute.  I may here add, perhaps, that if the Equity Rules lately promulgated be strictly acted upon, much time and money will probably be saved.  Henceforth, any unreasonable delay cannot be attributable to the Court. Motions, Interlocutory Proceedings and Causes, also can now be heard at any time, out of Term as well as in Term; and, on proper notice, a Judge will always attend for that purpose.  The practice, as now regulated, for dismissing bills for want of prosecution within a limited period, will, I think be very useful; and wherever this rule prevails, I may venture to say the Court will set its face against all applications tending to evade it. I repeat my intention of endeavouring to the best of may ability, to explain and to act upon the principles and practice now established for regulating the equitable jurisdiction of this Court, in all cases which shall come before me.

 

Notes

[ 1]See also Sydney Gazette, 26 June 1838 (stating that the case was heard on 22 June 1838); Australian, 29 June 1838 (stating that S. Stephen appeared for the plaintiff, and Mr. Cheeke for the defendants, and that this was an amicable application for leave to foreclose).

Published by the Division of Law, Macquarie University