CHAP. III.
Sect. V.

Deposit with

firm.

Whether all the title-deeds should be deposited.

Where freehold title-deeds were intended to be deposited with an equitable mortgagee, together with deeds relating to leasehold property, and were accordingly specified in the memorandum, it was held that the freehold property was included in the mortgage. (a) But where the deeds remain in the possession of the debtor, an equitable mortgage will not be created by the fact of a memorandum attached to them declaring that they are appropriated to a particular debt, that not being an assignment. (b)

Where deeds have been deposited with a firm it is necessary, in order that, if any new partners are admitted into the firm, they may have the benefit of the security, that the memorandum accompanying the deposit (if any) should state that such was the intention of the parties when the deposit was made, or that it should be clearly proved by parol evidence. (c) But the dealings with the new firm may be such as to recognize their right to the security to cover the original advance as well as subsequent advances by the new firm. (d) "The leaving the deeds in the custody of each successive firm is equivalent to a re-deposit." (e)

It was at one time considered doubtful whether it was not necessary that all the deeds relating to the property

(a) Ex parte Leathes, Re Leathes, 3 D. & C. 112; and see Ex parte Edwards, Re Moore, 1 Dea. 611; Ex parte Heathcote, Re Ogbourne, 2 M. D. & De G. 711; Daw v. Terrell, 33 Beav. 218; Eyre v. M'Dowell, 9 H. L. C. 619.

(b) Adams v. Claxton, 6 Ves. 230.

(c) Ex parte Kensington, 2 V. & B. 79, 83; 2 Rose, 138.

(d) Ex parte Oakes, Re Worters, 2 M. D. & De G. 234; Ex parte Smith, Re Gye, ib. 314; Ex parte Lloyd, Re Ablett, 1 Gl. & J.389; Ex parte Alexander, Re Till, ib. 409.

(e) Fisher on Mortgages, 2nd ed. 36.

should be deposited. (a) But it seems now to be clear that a deposit of part of the deeds only is enough to create a valid equitable mortgage, there being evidence that the object was to create a security upon the whole. (b) In Lacon v. Allen (c) Sir R. T. Kindersley, V.C., said: "The question is, is it necessary that every title-deed should be deposited? Suppose the owner has lost an important deed, could he not deposit the rest? In each case we must judge whether the instruments deposited are material parts of the title; and if they are, it is not necessary to say there are other deeds material, if there is sufficient evidence to show that the deposit was made for the purpose of creating a mortgage."

CHAP. III.

Sect. V.

need not be

shown.

To constitute a good equitable mortgage it is not Good title necessary that the deeds deposited should show a good title in the depositor. Thus, where the debtor deposited the title-deeds of his estate, and omitted the conveyance to himself, which he subsequently deposited with his bankers, it was held that the first depositee had priority over the bankers. (d)

But it seems to be doubtful whether an equitable mortgage will be created by the deposit of an attested copy of a deed, even when the depositor cannot deposit the original, as in the case of a partnership. (e)

Where part of the deeds are deposited with one per- Part of deeds

(a) Ex parte Wetherell, 11 Ves.401; Ex parte Pearse, Buck,

525.

(b) Ex parte Arkwright, Re Daintry, 3 M. D. & De G. 129 sc. nom.; Ex parte Pott, 7 Jur. 159; Ex parte Chippendale, 1 Deac. 67; 2 Mont. & A. 299;

deposited with one creditor and part with

Whitbread v. Jordan, 1 Y. & C. another.
Exch. Ca. 303.

(c) 3 Drew. 582.

(d) Roberts v. Croft, 24 Beav. 223, affd, 2 De G. & J. 1.

(e) Ex parte Broadbent, Re Borron, 1 M, & A. 635; 4 D. & C. 3.

CHAP. III.
Sect. V.

Deeds relating
to part of
an estate.

son, and subsequently the other part with another, if the equities between the incumbrancers are equal, the first mortgagee will have priority. (a) In the recent case of Dixon v. Mucklestone,(b) the owner in fee of a farm deposited deeds of conveyance of the farm dated 1774, by way of security for money then due, writing at the same time a letter which stated that the deeds were the title deeds of the farm, and were to be a security. He afterwards deposited the subsequent title-deeds of the farm, the earliest being dated 1787, with bankers by way of security for money due to them; the title was investigated by the bankers, and they had no notice of the prior charge. It was held that the letter created an equitable charge on the farm, and that under the circumstances credit must be taken to have been given by the owner of the prior charge to the statement made by the mortgagor, that the deposited deeds were the whole of the title-deeds, and that the owner of the prior charge had therefore not been guilty of negligence, so as to deprive herself of her priority.

Where deeds are deposited which relate only to a portion of an estate, the depositee will only have a charge on the lands included in the deeds deposited, even though he has been led to believe from the depositor's statement that the whole of the property was comprised. If this were not so any deed might be deposited, with an allegation that it should be held as a deposit to charge any lands which were the property of the depositor.(c) But the court will, under another head

(a) Roberts v. Croft, 24 Beav. 233; 2 De G. & J. 1.

(b) L. R. 8 Ch. 155; see also Ratcliffe v. Barnard, 19 W. R.

340; 40 L. J. Ch. 147; 24 L. T. (N. S.) 215.

(c) Jones v. Beav. 47.

Williams, 24

of equity, compel the depositor to make good his words. (a)

Where certain title deeds were found among the

effects of a deceased person, with a memorandum of charge, and the deeds did not answer the description in the memorandum, but it did not appear whether any others were deposited on the occasion of the loan, it was held that there was a good lien on the property comprised in the deeds found, for the amount of the advances. (b)

CHAP. III.
Sect. V.

Memorandum referring to different deeds

than those deposited.

to various pro

perties.

Where deeds are deposited relating to two different Deeds relating estates, accompanied by a memorandum pledging only one of them as a security, that one only to which the memorandum relates will be charged. (c)

A direction to a third party to hand over deeds belonging to the depositor, which are in his possession, to another person, may constitute a valid equitable mortgage. Thus where A B, being entitled to three properties, the title deeds of one of which were held by his bankers as a security, deposited the title deeds of the other two with C D as a security for a debt, and he gave him an order to the bankers (written by himself, but not signed) to deliver over the deeds of the third property when their lien had been satisfied, it was held that this gave C D a valid equitable mortgage on the property mortgaged to the bankers. (d)

(a) Roberts v. Crofts, 24 Beav, 230; see further Ratcliffe v. Barnard, 19 W. R. 340; 40 L. J. Ch. 147; 24 L. T. (N. S.) 215. (b) Ex parte Powell, Re Moore, 6 Jur. 490.

(c) Wylde v. Radford, 9 Jur. (N. S.) 1169; 33 L. J. Ch. 51; 12 W. R. 38.

(d) Daw v. Terrell, 33 Beav. 218; 3 N. R. 285.

Direction to third party

to hand over

deeds.

N

CHAP. III.
Sect. VI.

Agreement

not to be per

Section VI.

CONTRACT NOT PERFORMABLE WITHIN YEAR.

No action shall be brought whereby to charge any person

formed within upon any agreement, that is not to be performed within the space of one year from the making thereof.

a year.

Contract must be one not to be completed within the year.

The contract must be one which from its very terms shows that the parties intended that it was not to be completed within the year, and therefore part performance within the year will not take the case out of the statute. This was decided in Boydell v. Drummond. (a) There the defendant subscribed to the "Boydell Shakespeare," which it was intended to publish in numbers, at least one number to be published annually, and it was the intention of the parties that the period of publication should extend over several years. No sufficient contract was signed by the defendant, and after receiving and paying for several numbers, he refused to continue his subscription. It was held that no action could be maintained against him. Lord Ellenborough, C.J., said, (b) "The whole scope of the undertaking shows that it was not to be performed within a year: and if, contrary to all physical probability, it could have been performed within that time, yet the whole work could not have been obtruded upon the subscribers at once, so as to have entitled the publishers to demand payment of the whole subscription from them within the year. It has been argued that an inchoate performance within a year is sufficient to take the case out of the statute; but the word used in the clause of the statute is 'performed,' which ex vi termini (b) P. 156.

(a) 11 East, 142.