COVENANT IN MORTGAGE

Dominion, Volume 18, Issue 178, 22 April 1924, Page 13

COVENANT IN MORTGAGE

CONSTRUCTION DETERMINED ON APPEAL. A Gisborne case in which the appellants were Dalgety and Co., Ltd-, and the respondents were Lawrence Boysen Tullock and another, was the subject of a judgment delivered by the Court of Appeal on Wednesday. The main question turned upon the construction of a mortgage. In the Supreme Court Mr. Justice Salmond had considered that the true construction of the covenant to pay in the mortgage was “that the mortgagors jointly will pay the debts which they owe jointly and that each of the mortgagors will pay the debts which he owes separately.” “In our opinion,” said the Court of Appeal judgment (embodying tho unanimous opinions of the Chief Justice, Mr. Justice Sim, .Mr. Justice Stringer, and Mr. Justice Adams), “the covenant is joint and several, with all the incidents of such a covenant at common law and must be construed according to its plain language as a joint covenant by both mo’igagors, and also as separate covenants by each of them, to perform the whole covenant and every part of it.” Their Honours were unable to agree with Mr. Justice Salmond’s construction and allowed the appeal, also ruling that judgement was to be entered for appellant in tho Supreme Court with costs according to scale as on a claim for £6OOO.