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![handle is hein.slavery/ssactsengr0699 and id is 1 raw text is: 278 HOWSE V. CHAPMAN 4 VES. JUN. 541,
was formerly entertained upon the point ; Child [541] v. Stephens (1 Vern. 101) ;
and it was left in a great degree of confusion; but that was put an end to afterwards ;
particularly in Symmes v. Symonds ([4 Bro. P. C. 328, 2d e]); which is a branch of
the cause of The Earl of Bristol v. Hungerford (2 Vern. 524). That case was referred
to, and the point was very much agitated, in Tempest v. Sabine in Chancery, January
the 14th, 1745 (Note : The Solicitor General cited this case from a manuscript note
by Mr. Browne, the King's Counsel) ; and it was held in that case, and in William
v. Spearman, before Lord Hardwicke in 1739, that all incumbrances are to be paid
according to their priorities. Judgment creditors are not analogous to specialty
creditors. They have no lien upon the land, except as assets against the heir or
devisee ; and the Statute (3 & 4 Will. & Mary, c. 14) having excepted devises for
payment of debts (Note : As to the construction of that clause, see The Earl of Bath
v. The Earl of Bradford, 2 Ves. [sen.] 590. Lingard v. The Earl of Derby, 1 Bro.
C. C. 311. Hughes v. Doulben, 2 Bro. C. C. 614 ; and that a charge makes equitable
assets, Bailey v. Ekins, 7 Ves. 319. Shiphard v. Lutwidge, 8 Ves. 26), the specialty
creditors in that case have no right against the estate, whether it was al equity of
redemption or a legal estate. Therefore as to that the Court says, if they take out
of real assets descended or the personal estate a satisfaction, they shall not have
the benefit of the provision made by the testator for the payment of his debts, till
they make the other creditors equal with them. (Haslewood v. Pope, 3 P. Wins. 322,
the third point.) That was in some degree noticed in Syrnmes v. Symonds. There
they claimed nothing under the provision for payment of debts, but only by virtue
of their judgment. The Case of Sir Charles Cox's creditors and Hartwell v. Chitters.
have been considered as over-ruled. According to them every decree in the common
administration of assets in this Court is wrong. If leasehold estates are subject to
mortgages, there is no conception, that creditors by specialty have not a right to
come upon the produce of them, subject to the mortgages. The equity of redemp-
tion of a leasehold estate is clearly assets at law (King v. Marissal, Shirley v. Watts,
Burden v. Kennedy, 3 Atk. 192, 200, 739. See Lyster v. Dolland, 1 Ves. jun. 431);
and the executor is charged there with the difference between the value of the
estate and the sum he paid in the redemption of it. In the case of a mortgage of a
freehold estate the equity of redemption is assets at law ; and it cannot be suggested,
that the specialty creditors are not entitled to their remedy against those estates
descended as legal assets; though they cannot be got at but through the medium
of a Court of Equity.
[542] The second question is raised upon a sort of equity, that, if these judgment
creditors claim to be paid out of the land, they are not to have the personal estate
applied to their demands. There can be no pretence for that. The commondirection
in every decree as to marshalling the assets expressly mentions specialty creditors
but does not refer to judgment creditors.
Lord Chancellor [Loughborough]. In the cases cited upon the first point, the
equity of redemption was in the debtor: but a judgment creditor has a right to
redeem. Where there is a mortgage, then a judgment, and then a second mortgage,
the judgment creditor may redeem the first mortgage. The Case of the creditors
of Sir Charles Cox, whether it is right or wrong, applies to bond creditors only,
not to judgment creditors.
The directions must be given upon the principle, that the judgment creditors
are to be paid in the first instance.
HOWSE v. CHAPMAN. April 19th, 22d, 1799.
[See Chandes v. Howell, 1876, 4 Ch. D. 657; Goodman v. Mayor of Saltash, 1882,
7 App. Cas. 642 ; Jervis v. Lawrence, 1882, 22 Ch. D. 215; Att.-Gen. v. Mayor,
&c., of Dartmouth, 1883, 48 L. T. 934; In re Christchurch Inclosure Act, 1888, 38
Ch. D. 531 ; Inre David, 1889, 41 Ch. D. 175.]
Bequest for the improvement of the city of Bath, construed to mean improvements
carrying on under an act of Parliament, not by private persons. Specific dis-
position by will in trust to sell, and in the first place pay debts, legacies, and charges
of probate and execution of the trust, and in the next place, that the residue of](ViewImageLocal?handle=hein.slavery/ssactsengr0699&div=1&collection=&method=preview&ext=.png&size=3)