Wetherell (a), Ex parte Chippendale (b), Ex parte Farley (c), Ex parte Peurse (d). Mr. Swanston and Mr. Giffard, for the assignees. The documents deposited were no evidences of the Plaintiff's title at all; he could not have defended his title upon them; they are evidences of the title of some one else, but not of the Plaintiff. His name does not appear on any one of these documents. A deposit of part of title deeds may, under some circumstances, constitute a good mortgage; but it must be a deposit, at least, of some of the deeds which evidence the Plaintiff's title: : not, as here, instruments which on the face of them have nothing whatever to do with the mortgagor or his title. The Court will not extend the doctrine of equitable mortgage by deposit, and this would extend it very much; for there is no decision that a deposit of deeds in themselves conferring no title on the mortgagee, and unaccompanied by that which is the root of his title, viz. the conveyance to him, will amount to an equitable mortgage. They cited Ex parte Coombe (e), Ridgway v. Wharton (f), Ex parte Whitbread (g), Ex parte Hooper (h). The VICE-CHANCELLOR: The question here is how the Court will deal with certain deposits of deeds by way of equitable mortgage; whether under the circumstances, the effect was to create an equitable mortgage. 1856. LACON 0. ALLEN. 1856. LACON v. ALLEN. I will take first the case of the Bear, as being the strongest against the mortgagee. As I understand the facts, the property was copyhold; of course the title consisted principally of the copy of the court rolls. A person of the name of Lubbock was the owner and had been admitted, and he sold that property to Shepeard; and on the occasion of that sale he gave a bond to Shepeard for quiet enjoyment. Shepeard is the immediate vendor of Cock. It is clear that the admission of Lubbock is part of the title. Cock mortgaged to Allen and Underwood, and he gave them the instrument of conveyance by which he held, and he gave them a mortgage deed; and these were the only instruments that he gave to those mortgagees. The only other documents that he possessed were the official copy of the admission of Lubbock, the abstract of Lubbock's title, and the bond which Lubbock had given to Shepeard. These were all the documents that he had, and for the purpose of an equitable mortgage he deposited these in the hands of Messrs. Lacon. Now, since the case of Russell v. Russell (a), this is well established, that supposing A., owing money to B., deposits the title deeds of his estates with B. for the purpose of a security, even without any writing, it is a good equitable mortgage, it gives B. a lien; and, notwithstanding the expressions of regret of Lord Eldon that the law should be so, even in his time, we find him saying he could not disturb it: since that time it has been acted upon over and over again. That doctrine cannot now then be disturbed. Then the question is, is it necessary that every title deed should be deposited? Suppose the owner has lost an important deed, could he not deposit the rest? In each case we must judge whether the instruments deposited are material parts of the title; and, if they are, it is not sufficient to say there are other deeds material, or even more material, if there is sufficient evidence to show that the deposit was made for the purpose of creating a mortgage. In this case every thing was deposited that the mortgagor had; at the time when he was called upon to give security he deposited all that he had, and the reason why he did not deposit more was that he had already given another mortgage, and parted with the deeds. Unless then I am to determine that every title deed of a mortgagor necessary to show the title must be deposited, I must decide that there is a sufficient deposit in this case to create an equitable mortgage. The other transactions were stronger in favour of the Plaintiffs as equitable mortgagees, and therefore were not discussed, it being admitted that the decision on the Bear Inn property governed them. The decree was therefore for the Plaintiffs. 1856. LACON v. ALLEN. 1856: 5th and 6th July. Trustees. Breach of Trust. Investment. WILKS v. GROOM. An administra- THE question in this case, which came on upon petitrix, Plaintiff in tion, arose in a suit instituted by Mrs. Wilks for the ministration of administration of the estate of John Hooper. a suit for ad the estate, re- rected sales of perty, and that The executors and trustees of the will of John Hooper renounced and disclaimed, and Mrs. Wilks took out administration, being a legatee of an annuity. The will contained the usual clause for indemnifying the trustees against the failure of any banker. The original decree in the cause directed an inquiry mortgaged pro- respecting mortgages, and a special inquiry whether a the mortgagees certain contract for sale of part of the estate entered into should be paid by the Plaintiff should be carried into effect; and, if it out of the produce of the was fit and proper, it was directed that such contract should be performed and carried into execution. And if there were any mortgages, and the mortgagees were chase-money of willing to join in a sale, it directed that the estates should be sold freed of the mortgages, and that the mortgagees should be paid out of the sale of the mortgaged estates. sales; it gave no direction about the pur the property sold by the administratrix. With the advice of the solicitors of the principal, but not all, of the beneficiaries, she The Chief Clerk certified that it was fit and proper that the contract should be carried into effect. The mortgaged property was sold, and Mrs. Wilks, in January, paid the money 1855, obtained, on petition, the payment to the mortinto a private bank to a separate account, and left it there for many months. The administratrix applied by petition, and thereon obtained money out of Court to pay off the mortgagees, while she had the purchasemoney lying at the bankers: the bank failed. Held, that she was not liable for a breach of trust. gagees of the mortgage debt, out of the monies in Court, In June, 1854, the contract for sale was carried into effect, and the purchase-money, 1,068., was paid to Mrs. Wilks through her solicitor Mr. Gabriel. Mr. Gabriel thereupon had various communications with Messrs. Beaumont and Thomson, who were the solicitors of the persons most interested beneficially in the testator's estate, respecting the proper mode of dealing with this sum. They recommended that it should not be invested in the funds, on the ground that it was probable the funds would fall considerably before the period when they must sell out (these transactions were during the war); and recommended that the money should be invested in a bank, in preference some joint stock bank, in the joint names of Mr. Gabriel and one of the firm of Beaumont and Thomson. To this Mr. Gabriel declined to accede, and then it was suggested by, or at least with the concurrence of, Messrs. Beaumont and Thomson that Mrs. Wilks should open an account with Messrs. Paul and Strahan, who were Gabriel's bankers, and with whom Mrs. Wilks had not previously, and never had, any other account. Mr. Gabriel then wrote to Messrs. Paul and Strahan on the subject, and their answer was as follows: "In a general way we do not take deposit accounts, but as a matter of favor to our friends we do so some, times when we have done so we have given exchequer bill interest, and allowed a week for the withdrawal of the sums. We shall be glad to see you on the subject," &c. On this a question was raised whether Mrs. Wilks in paying in the money did not pay it to a deposit account, under a contract not to draw it out without a week's notice; and further evidence was adduced on that point, 1856. WILKS v. GROOM. |