|
|
|
|
|
|
|
WILLIAMS' CASE. 197
devisee from whom the body of the realty was taken, (x) And
upon a like ground of necessity to satisfy the just claims of others,
in partition cases, where it is impracticable to make any just parti-
tion of the real estate, or where a partition cannot be made of it
without much disadvantage, there, as well by the long established
power of the court, as by positive legislative enactment, a real
estate in which an infant has an interest in common with others
may be sold, and a share of the proceeds of the sale, consisting of
personalty, may be awarded to the infant (y)
The courts of justice of England, acting in accordance with
these general principles and holding the rights of property, parti-
cularly those of an infant, to be in all respects sacred and inviola-
ble, but upon the ground of some great and overruling necessity,
have cautiously abstained from meddling with all such rights in
any way. And therefore it is, that the English Court of Chancery
has never, except in the cases above mentioned, undertaken to
dispose of an infant's land, or inheritance in real estate; and that,
although many cases have arisen, in which the income of an in-
fant's estate has been found to be entirely insufficient for his sup-
|
|
|
|
|
|
|
|
|
|
unjust.— (1785, ch. 72, s. 1 and 2; 1832, ch. 302, s. 8; 1837, ch. 292; Booth v. Rich,
1 Vern. 295; Mallack v. Galton, 3 P. Will. 352; Winchester v. Beavor, 3 Ves. 317;
Williamson v. Gordon, 19 Ves. 114.)—-And it has been further declared, without dis-
tinction as to infants or adults, that in all cases to foreclose, in case the party against
whom the bill shall be filed does not pay the sum due, by the time limited in the
decree, the mortgaged premises, or so much thereof as may be necessary to dis-
charge the money due and costs, may be sold for ready money, unless the plaintiff
shall consent to a sale on credit; and the money raised by such sale shall be ordered
to be brought into court to be paid to the plaintiff.—(1785, ch. 72, s. 3; David v.
Grahame, 2 H. & G. 94.)
It appears to have long been the understanding of the profession and of this court,
as indicated in the above case of Jones v. Betsworth, and in other cases, that the
proceeds of the sale of the mortgaged property should be first applied to the pay-
ment of the costs, commissions and expenses, and the balance only to the satis-
faction of the mortgage debt; or discounted from the debt, should the mortgagee
himself be the purchaser, leaving the mortgagee to proceed otherwise against the
mortgagor for the recovery of so much of the debt as was thus left unsatisfied.—
(Ridgely v. Belt, 1805; Murdock's case, 2 Bland, 464, 468.)—But in England it is
otherwise; there, according to a recent decision, the whole amount of the proceeds
of the sale must be first applied to the satisfaction of the mortgage debt.—
(Upperton v. Harrison, 10 Cond. Chan. Rep, 139; Ellison v. Wright, 3 Cond. Chan.
Rep. 482.)
(x) Culpepper v. Aston, 2 Chan, Cas. 115; Oxenden v. Compton, 2 Ves,, jun.,
73; Maugham v. Mason, 1 Ves. & Bea. 415; Jones v. Jones, 1 Bland, 452.—
(y) 1785, ch, 72, s. 12; 1820, ch. 191; Corse v. Polk, 1 Bland, 233, note.
|
|
|
|
|
|
|
|
 |
