In one sense, no doubt, the Defendant is a trustee, as every man is a constructive trustee who has in his possession property belonging to another, of which he did not culpably obtain possession; but this is only as every debtor is a trustee of the money he owes to the creditor. Unless adverse claims are made to the money in his hands, he cannot properly be called a trustee, even constructively, but where no such claims are made he is simply a debtor.

Such is the position of the Defendant Mr. Dresser, the trusts being void, he had no duty to perform, and he ought to have paid over the money at once to the assignee, no claim by any other person having been made, or being about to be made against the money in his hands. In truth, he was the less justified in causing this suit to be instituted, as, in the case of Harle v. Herring, to which he was a party, he had ascertained, by the decree of the Court, that the trusts of the deed of January, 1864, were wholly void, and that he could not therefore claim any of the rights incidental to a trust which, in truth, never existed.

I must make a decree for the Plaintiff, and as Mr. Dresser has occasioned this suit, he must pay the costs of it.

1866.

SMITH

v.

DRESSER.

1866.

Mar. 24. A. B., who was both heir and adminis

trator, gave to
a creditor of
the intestate
a mortgage on
the descended
estate for his

MR.

GEORGE v. GEORGE. (No. 2.)

R. GREAVES died intestate in 1841 indebted to the trustees of his marriage settlement in the sum of 3,700l., which he had borrowed from them in 1849.

The Defendant Bagshawe was both his heir-at-law debt, which he and administrator. covenanted to

pay. The creditor thereupon gave to A. B., as adminis

The trustees required payment of the debt, whereupon Bagshawe, in May, 1861, gave them a mortgage on the trator, a receipt descended real estates for the amount of the debt and

for the debt,

but no money he personally covenanted to pay it. The trustees, on the passed. Held, other hand, gave Bagshawe, as administrator, a receipt account of the for the money. No money in fact passed and the mortpersonal estate

in taking an

of the intestate gage remained unpaid.

as against A.

B., that be

was entitled to

charge the

ment out of

the personal

By the decree, Bagshawe, as administrator of Greaves, amount of this was ordered to admit assets of Greaves, or to account for debt as a pay- the personal estate. In taking the accounts, he charged the 3,7007. as a payment out of the personal estate, and the Chief Clerk allowed it. A summons was, however, taken out to vary the certificate by disallowing the 3,7001., on the ground that no money had actually passed in the transaction.

estate.

Mr. Selwyn and Mr. Woodhouse for the Plaintiff.

Mr. Cole and Mr. Bagshawe for Bagshawe.

Mr. Eddis and Mr. Elderton for other parties.

The

The MASTER of the ROLLS.

The trustees of the settlement were entitled to come against the personal estate of Greaves for payment of the 3,7001., and Bagshawe has paid them off by means of a mortgage. If this had been a mortgage on an estate which Bagshawe had bought, it would have been a perfectly good payment. But it happens to be a mortgage on the real estate of Greaves whose personal estate is liable, does that alter the character of the case? I think not.

1866.

GEORGE

v.

GEORGE.

(No. 2.)

By the mortgage, the personal estate is released from the debt and the real estate became subject to a charge

to the same amount.

It is true that no money was paid, but that is immaterial. I think that, under the circumstances of this case, Bagshawe is entitled to have the 3,7001. allowed him as a payment out of the personal estate.

IN

GRAY v. ADAMSON.

Mar. 12.

N this case the heir-at-law of a mortgagor had dis- The rule as to claimed, and was brought to the hearing.

Mr. E. Smith and Mr. Dickinson for the Plaintiff.

Mr. Lindley, for the heir, asked for his costs, contending that there was no case in which a disclaiming heir, brought before the Court for the convenience of the parties, had been deprived of his costs.

Ford

the costs of a disclaiming

Defendant applies to a disclaiming heir-at-law.

1866.

GRAY

บ.

ADAMSON.

Ford v. The Earl of Chesterfield (a) was cited: and see Ford v. White (b); Davis v. Whitmore (c); Furber v. Furber (d).

The MASTER of the ROLLS.

When he was served he ought to have offered to execute any deed which might be necessary. I can give him no costs.

Feb. 27. Liberty to a mortgagee, pending a winding up, to institute a suit for foreclosure refused, there being no special difficulty, and it being competent to him to obtain

the proper order in Chambers without

the necessity of a suit.

In re ST. CUTHBERT LEAD SMELTING

ΑΝ

COMPANY.

N order having been made to wind up this company,

Mr. Selwyn and Mr. Freeling, on behalf of a mortgagee, moved, under the 87th section of "The Companies Act, 1862" (25 & 26 Vict. c. 89), for leave to institute a foreclosure suit against the company.

They cited Walker v. The Ware, &c. Company (a).

Mr. J. Pearson, for the Official Liquidator, supported the application.

The MASTER of the ROLLS.

I think that this is an application I ought not to

grant.

(a) 35 Beav. 52.

If

1866.

In re

LEAD

SMELTING

COMPANY.

If I were to grant this application, then, in every case of a mortgage of a company's property, I ought, during its winding up, to allow a mortgagee to file a bill, and ST. CUTHBURT must also extend the like power to judgment creditors of the company. If I were to do so, the effect would be, that I should be putting the estate of the company to a considerable amount of expense, to enable the mortgagee to obtain an order, which I can make in Chambers. It is only necessary to know what the rights of the mortgagee are, and what is proper to be done, and then, on hearing the Official Liquidator, I might make the order without the necessity of any suit at all. But if this application were granted, there would be a bill and answer; the case would be heard, and a decree made, directing accounts to be taken in Chambers apart from the winding up, and six months would be given to redeem, and then would come the ultimate order for foreclosure. This would probably take many months, while, if proper, I can make the order under the winding up to-morrow.

I am of opinion that the 87th clause was only intended to apply to cases where some difficult question arises, which can only be determined in a suit. But I consider that if a mortgagee comes in and asks for payment, I have full authority to deal with his rights. He may make an application in Chambers with respect to payment and the interim dealing with the property, on which occasion the opinion of the Official Liquidator will be very valuable. I can make no order.