Clinton v Bernard

• Jurisdiction: Ireland
• Judgment Date: 20 January 1844
• Date: 20 January 1844
• Court: Court of Chancery (Ireland)

Clinton

and

Bernard.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

Where a decree is made for the foreclosure and sale of real estate, of which the equity of redemption is rested in an infant, it is not necessary to give the infant a day to show cause.

The Court will make an order under the 1 W. 4, c. 47, s. 11, that the infant shall execute the deed of conveyance to the purchaser.

The bill in this case had been filed in the year 1834 against John White Bernard, for the purpose of foreclosing a mortgage of certain freehold property, dated the 7th of September 1830. Pending the suit the mortgagor died, having, by his will, devised his equity of redemption in the mortgaged premises to his three daughters, who were also his co-heiresses-at-law, and were all infants.

The usual decree for a foreclosure and sale of the mortgaged premises was subsequently pronounced, and a sale was had under that decree. The daughters of the mortgagor were made parties to the deed of conveyance to the purchaser, but they being still minors, a petition was presented for an order directing them to execute the deed, under the 1 W. 4, c. 47, s. 11.

Mr. Brereton now moved the matter of the petition, and cited Jones v. Ham (a), Flood v. Sutton (b), Scholefield v. Heafield (c), in support of the application. The case of Price v. Carver (d), he contended, was distinguishable, because the decree there was merely for a foreclosure, and not, as in this country, for a foreclosure and sale. The case of Clibborn v. Forstall (e), he contended, was not opposed to the cases which he cited in favour of the application; because there, the infant, against whom the order was sought, was merely tenant in tail in remainder after a life estate which was subsisting when the order was sought.

The Lord Chancellor, on a subsequent day, delivered the following judgment:—

This was a suit for a foreclosure and sale, and a decree was obtained according to the prayer. The question is, whether the co-heiresses and devisees of the mortgagor can be ordered to convey to the purchaser under the 1 W. 4, c. 47, s. 10; and I am of opinion that they can.

I need not consider the general question, whether an infant should be allowed a day to show cause in a foreclosure suit; but I may observe that even in Price v. Carver (f), the Court observed that this statute affords no remedy for cases of foreclosure in which a conveyance is required from the heir, except that by the eleventh section...