GLASHEEN V. TAYLOR

GLASHEEN V. TAYLOR

Clause 12 of the mortgage operates as a qualification or proviso to the personal covenant to pay the principal moneys. Upon the death of the original mortgagee, Muggleton, before the due date, the unpaid balance is discharged, and the benefit of this release extends to the transferee of the land. There is no basis to limit the operation of clause 12 to the original mortgagor or to construe it as a purely personal agreement. Thus, Taylor, as transferee, takes free of the mortgage upon Muggleton's death prior to 30th June 1953.

Parties
Plaintiff/appellant: Martin Michael Glasheen; Defendant/respondent: Taylor; Mortgagor/previous Owner of Land: Bridge; Original Mortgagee/deceased: Muggleton
Jurisdiction
Australia
Judgment Date
26 September 1949
Procedural Posture
Appeal and Cross Appeal / High Court Judgment
Outcome
Appeal dismissed with costs; cross-appeal allowed with costs; order of Supreme Court varied.
Legal Topics
Interpretation of Mortgage Clauses, Operation of Contingent Conditions in Property Instruments
Property Law Mortgages Land Law Interpretation of Mortgage Clauses Operation of Contingent Conditions in Property Instruments

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Parties

Martin Michael Glasheen

Plaintiff/appellant

Taylor

Defendant/respondent

Bridge

Mortgagor/previous Owner of Land

Muggleton

Original Mortgagee/deceased

Procedural Posture

Appeal and Cross Appeal / High Court Judgment

Legal Issues

  1. 1 Whether clause 12 of a mortgage, providing for discharge of the unpaid balance in the event of the mortgagee's death, enures to the benefit of a transferee of the land
  2. 2 Interpretation of whether clause 12 operates post-transfer of mortgage and land

Ratio Decidendi

Clause 12 of the mortgage operates as a qualification or proviso to the personal covenant to pay the principal moneys. Upon the death of the original mortgagee, Muggleton, before the due date, the unpaid balance is discharged, and the benefit of this release extends to the transferee of the land. There is no basis to limit the operation of clause 12 to the original mortgagor or to construe it as a purely personal agreement. Thus, Taylor, as transferee, takes free of the mortgage upon Muggleton's death prior to 30th June 1953.

Court Disposition

Appeal dismissed with costs; cross-appeal allowed with costs; order of Supreme Court varied.

Orders

  • Plaintiff to pay defendant the costs of the summons and the appeal to the Full Court.
  • Appeal dismissed with costs.