Leading Cases in Modern Equity
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1888 edition. Excerpt: ...to keep down the interest and who has obtained the usual order permitting him to redeem the mortgage, is not of right entitled under sect. 15 of the Conveyancing and Law of Property Act, 1881, to require the mortgagee to transfer the mortgage debt and premises to a third person. Section 12 of the Conveyancing Act, 1882, passed in C0, (, a, c_ consequence of Teevan v. Smith (20 Ch. D. 724), pro ing Act, vides that the right of a mortgagor under sect. 15 of 1832, Sectthe Conveyancing Act, 1881, to require a mortgagee 12' instead of reconveying to assign the mortgage debt and convey the property to a third person, shall belong to and be capable of being enforced by each incumbrancer or by the mortgagor, notwithstanding any intermediate incumbrance, but a requisition of an incumbrancer shall prevail over a requis_ition of the mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over a requisition of a subsequent incu mbrancer. The question as to the circumstances under which a mortgagee can be charged as a mortgagee in possession was much discussed recently in the Court of Appeal in Noyes v. Pollock (32 Ch. Div. 53). The principle on which a mortgagee is so charged was well explained in Lord Kensington v. Boucerie (7 D. M. & G. 134, 157), cited with approval in the judgment of Bowen, L.J. (pp. 63, 64). "A mortgagee when he enters into possession of the mortgaged estate enters for the purpose of recovering both his principal and interest, and the estate being in the eye of this Court a security only for the money, the Court requires him to be diligent in realizing the amount which is due, in order that he may restore the estate to the mortgagor who, in the view of this Court, is entitled to...
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- 13 Sep 2013
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