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![handle is hein.slavery/ssactsengr0220 and id is 1 raw text is: V GORDON V. HORSFALL [1846]
ON APPEAL FROM THE COURT OF CHANCERY IN JAMAICA.
ANN CARR GORDON,-Appellant; CHARLES HORSFALL and Others,-
Respondents * [Dec. 4, 5, and 8, 1846].
A judgment creditor cannot sustain a bill, for a general administration and
account, against a prior incumbrancer, unless the bill contains an offer to
redeem; as redemption is the only relief, in equity, to which a subsequent
incumbrancer is entitled, as against a prior mortgagee [5 Moo. P.C. 426].
Sem ble. If the bill is not for redemption, but for a tdtally different object, and is
quite incapable of being used as a bill of redemption, an offer at the bar, to
redeem, will not sustain it as such.
The practice of the Chancery Courts, in Jamaica, is to decree a sale, instead r.f
a foreclosure [5 Moo. P.C. 426].
Bill by A., the mortgagee of real estates, in Jamaica, against the executors of
B., the mortgagor, and other persons claiming under B.'s will. 'The bill
stated that there were judgments to a large amount against the morrg%.ged
estate, but did not make the judgment creditors parties, and prayed for en
aecount, and payment of what should be found due, upon, the mortgage, or, in
default, that a competent part of the estate m ight be sold, and payment made
thereout. C., a judgment creditor, subsequent to A.'s mortgage, then tilei a
hill against the executors of B., and those claiming under his Will, aid also
against A., the prior mortgagee, on behalf of herself and all other creditors of
B. By the bill, she insisted that her judgment gave her a prior lien to A.,
as against part of the mortgaged estate, alleging, that the judomt nt was
given in respect of the purchase-money of such part of the -state, still
remaining unpaid; she charged collusion, between A. and the executors of
B. in respect of their management of the mortgaged estates and in t.he
vc(onnts, and prayed for a declaration, of the priority of her lien, over A.'s
n.ortgage, as to part of the estate, and a due administration of lh personal
estate; and that, if the personal estate should prove inefficient, ,c should ie
first paid out of the proceeds of the estate, on which she claimed a livn, and
that in case A. should consent to join in the sale of the other real esla'es, h
should be paid what, on taking the accounts, should be found due to him. A.
filed a general demurrer for want of equity, on the ground, that there was
no offer to redeem ; which the Court overruled. A.'s suit being set down for
hearing, C. filed a petition, entitled in both causes, praying that the hearing
of A.'s suit might be postponed until her cause was ready for hearing, and
that they might be both heard together, or that she might be at liberty to
intervene in A.'s suit. The Court made an order, granting her leave to
intervene, and to object to the mortgagee's accounts. By the decree, made in A.'s
suit, it was referred to the master to take the accounts, and further directions
were reserved. C. opposed the accounts, and afterwards took exception to
the master's report. The Court, upon the argument upon the exceptions,
refused to make an order, until it should be determined, at the hearing of
C.'s suit, whether she had a valid claim on the mortgaged premises. At the
hearing of C.'s suit, she failed to establish her priority over A.'s mortgage,
or to prove collusion between him and the executors of B., and the bill was
dismissed, as against A., with costs, but a decree was made in that suit,
directing certain general administration accounts. A.'s suit was subse-
quently heard upon further directions, in the absence of C., and the master's
report was confirmed, and a decree was made for payment of what was
thereby found due to A. Held on appeal:
1st. That as C. had proved her judgment debt, she was entitled to a decree for
relief against B., the obligors, executors ; but that, as she had not offered to
Present: Lord Brougham, Lord Langdale, the Right Hon. Dr. Lushington, and
the Right Hon. T. Pemberton Leigh.
V MOORE, a93](ViewImageLocal?handle=hein.slavery/ssactsengr0220&div=1&collection=&method=preview&ext=.png&size=3)