1856. Dec. 20, 24. Lord Chan SWAINSON v. SWAINSON. Before The CHRISTOPHER SWAINSON, being seised and possessed of considerable real and personal estate, cellor LORD CRANWORTH. A mortgagor devised his real and per sonal estate to died without the mortgage by his will dated the 11th March 1850 and a codicil thereto dated the 24th June 1851, devised and bequeathed all his real and personal estate to his wife Elizabeth Swainson her heirs executors administrators and assigns for ever. Many of the lands and hereditaments thus devised were subject to various mortgages created of the same respectively by the testator. The testator died on the 19th December 1854; and Elizabeth Swainson died two days after him, on the 21st December 1854, intestate, and without having proved his paid out of the will, and without having done anything respecting the personal estate mortgages. E. Swainson was at her death seised of or entitled to the real estate devised to her by her husband The decision and of personal estate chiefly that bequeathed to her by of the mort gagor. in Scott v. Beecher, 5 followed. him. The Plaintiff in the present suit was Charles Low Swainson one of the next of kin of E. Swainson. The Defendant was Edward Christopher Swainson the heir at law of the testator and of E. Swainson and also the personal representative under letters of administration granted to him of both these parties. The question raised was whether the Defendant was entitled to apply the personal estate of E. Swainson especially that part of it to which she became entitled under the will of C. Swainson in paying off the mortgage debts for the sole benefit of himself and to hold the real estates which de scended scended to him from E. Swainson discharged from the mortgages: the Defendant insisted that he was so entitled. The Plaintiff on the other hand contended that he, the Plaintiff, was entitled to his share of the personal estate of E. Swainson including the personal estate which came to her from her husband exonerated and discharged from the payment of the mortgage debts and charges on the real estate; and the Bill prayed a declaration of right accordingly. The time of the deaths of Mr. and Mrs. Swainson prevented the case falling within the provisions of the Act 17 & 18 Vict. c. 113. The cause came on before Vice-Chancellor Stuart in July 1856, when his Honor made a decree in favour of the Plaintiff, being of opinion that the case was in principle exactly the same as Scott v. Beecher (a), and that the heir could not claim to hold the real estate exonerated from the charges, unless he could show that he inherited. from the person who was bound to pay the debt which E. Swainson clearly was not. The Defendant appealed from this decision. Mr. Elmsley and Mr. Wickens for the Defendant. We submit that the decision in Scott v. Beecher (a) on which the Vice-Chancellor proceeded is not in conformity with the previous authorities, and cannot be supported: it is now brought before a Court of Appeal for the first time and ought to be overruled. The authority of Scott v. Beecher was indeed followed by Lord Langdale M. R. in The Earl of Ilchester v. The Earl of Carnarvon (b), but the matter was not discussed. It also appears to have been followed in Evans v. Smithson a case in the Exchequer before Lord Lyndhurst (unreported 1856. SWAINSON v. SWAINSON. 1856. SWAINSON U. ported) but on what grounds is not known. In The Earl of Clarendon v. Barham (a) however, which came before the Lord Justice Knight Bruce when Vice-Chancellor, SWAINSON. the question was fully argued, and authorities were referred to which were not noticed in Scott v. Beecher, and his Honor, though he made a decree in conformity with the decision in Scott v. Beecher, stated that he did so contrary to his own opinion and in deference to the cases of Scott v. Beecher Evans v. Smithson and The Earl of Ilchester v. The Earl of Carnarvon. This really raises the question whether Scott v. Beecher was rightly decided and it is submitted that it was not. The principle of the earlier cases was that if the executor or legatee of a deceased mortgagor received more than sufficient to pay all the debts of the mortgagor then the mortgage debt became the personal liability of the devisee of the mortgaged estate and as between his real and personal representatives his real representative had a right to have the real estate exonerated at the expense of the personal. This is the doctrine of Lord Chief Baron Gilbert Lex Præt. 315 (b) and it is also supported by the decision in Earl of Belvedere v. Rochfort (c) a case in its circum (a) 1 Y. & C. C. C. 688. (b) "If the grandfather mortgages his lands, and covenants to pay the mortgage money, and the land descends to the father, and the father dies, leaving a personal estate of his own, it shall not go in exoneration of the mortgage of those lands descended to the grandson, because the personal estate of the father was not liable to the grandfather's debt, and there is no equity that any part of the personal fortune of one should be applied in exone stances ration of such debt. Whence it seems that if the father had been executor to the grandfather, and the grandfather had left assets to the value of the debt, and the father had converted them to his own use, then so much of the father's personal estate had been liable to the payment of the grandfather's debts; and the grandson could, in such case, have come upon the father's executors, to exonerate the mortgage out of the father's personal estate." (c) 5 Bro. P. C. 299. stances closely resembling the present. (See also Lord Effingham v. Napier (a).) These authorities were not brought to the attention of Sir W. Grant in Scott v. Beecher and it is not therefore to be assumed that if they had been he would have decided as he did. They referred to Bond v. England (b). Mr. Selwyn and Mr. G. Simpson for the Plaintiff supported the decision of the Vice-Chancellor. This appeal is an attempt to overturn a rule which has been established for a long series of years, and to do this in favour of the very party whom the Legislature, as to future cases, has decided shall not be entitled to that which is now sought for him. In addition to the authorities in the Plaintiff's favour which have been adverted to on the other side, there is a clear recognition of the state of the law by Lord Truro in Hickling v. Boyer (c): there all the cases on this subject had been cited and his Lordship in reference to them says, "even in reference to a mortgage the cases of Scott v. Beecher The Earl of Ilchester v. The Earl of Carnarvon and The Earl of Clarendon v. Barham show that when the mortgage debt was not the original debt of the person whose estate is to be administered and he had not made it his own otherwise than by receiving for his own benefit from the original debtor assets sufficient to pay all the debts of such original debtor, the estate must bear the burden, even though the person whose estate is to be administered has charged other parts of his property with the payment of all his debts, and though by receiving such assets he has made himself in one sense personally liable to pay the mortgage." With regard to the dictum. of 1856. SWAINSON บ. SWAINSON. 1856. SWAINSON v. SWAINSON. of Lord Chief Baron Gilbert it is to be observed that the first part of the passage is in favour of our argument and that the deduction from it, beginning with the words "Whence it seems" &c. is really not a logical sequitur. The passage was cited to Lord Lyndhurst in Evans v. Smithson but his Lordship nevertheless followed Scott v. Beecher. The case of Earl of Belvedere v. Rochfort (a) is very special in its circumstances, and there is no report of the judgment of the House of Lords. Mr. Elmsley replied. The LORD CHANCELLOR said, Some propositions connected with the case admit of no doubt. If the owner of an estate mortgaged it and died, and the representative of his real estate was a different person from the representative of his personal estate, in this case the real estate would be exonerated from the debt at the expense of the personalty. Again where the real and personal representative of the mortgagor was the same person no question could arise. What however was to happen, if the estate having come to some person, that person died and his representatives were different, his real estate going to one and his personal to another? It was here that the question arose. Without saying whether there might be a preference in favour of the rule being one way rather than another, the only point of importance was that some rule should be established. I have always understood the rule to be that when an estate in mortgage had once come to the hands of a person filling the character of both real and personal representative of the mortgagor, then the charge became a debt of that person and was only an incumbrance on the estate. That was the rule laid down in Scott v. Beecher, and it was acted on by Lord Lyndhurst (a) 5 Bro. P. C. 299. |