Pawlett v Attorney General (1667) Hardres 465; 145 ER 550
The equitable right to redeem
Pawlett was an Exchequer case concerning mortgaged land which had come into the Crown’s hands following the mortgagee’s heir’s attainder for treason. The central question was whether the mortgagor’s right to redeem survived that change of ownership, and how it could be enforced against the King.
Hale, Chief Baron, distinguished an equity of redemption from a trust created by agreement. He treated redemption as an equitable right inherent in the land, rather than merely a personal obligation of the original mortgagee. Baron Atkyns strongly supported equitable relief against the Crown. The discussion also separated the existence of that right from the particular remedy available where the King was in possession.
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Facts and proceedings
Pawlett had mortgaged land to Ludlow to secure £3,000 with interest. He also bound himself by a statute and recognizance to perform the mortgage covenants and pay on the appointed day. The payment date passed without payment.
In his bill, Pawlett alleged that the plague had prevented him from paying at the agreed place in the Strand, Middlesex. He also alleged that Ludlow subsequently accepted interest and waived the forfeiture. These were allegations supporting the claim to redeem, rather than findings after a trial of the evidence.
Ludlow died, leaving his goods, debts and other personal estate, after payment of his debts and legacies, to his executor. His son and heir, Edmund Ludlow, was attainted of high treason, and the Crown seized the mortgaged land. The executor also proceeded against Pawlett’s land under the recognizance.
Pawlett brought a bill against the Crown and the executor seeking redemption. The question arose on a demurrer: an objection that the bill did not provide a legal basis for relief. Besides the right to redeem, there was a dispute over who should receive the mortgage money—the Crown or the executor.
The arguments about the Crown
Counsel for the King argued that the mortgage was comparable to a trust and could not be enforced against the Crown in equity. On that argument, Pawlett’s route was a petition asking for royal grace and favour, rather than a remedy obtainable as of right. Counsel also relied on the difficulty of compelling the King to execute a conveyance and the limits of the courts’ equitable jurisdiction over him.
Pawlett’s side argued that common equity was due from the King just as justice was. The Crown had acquired the estate through the heir’s forfeiture, and that acquisition should not extinguish the mortgagor’s existing right to redeem. The claim was therefore more than an attempt to enforce a personal promise against a successor who had never made it.
Hale’s distinction between a trust and redemption
Hale explained that a trust was created by the parties’ arrangements and could be directed by those arrangements. By contrast, an equity of redemption was an equitable interest attached to the land. Its importance was reflected in its ability to be assigned and devised. The change in the capacity in which the land was held did not, by itself, dispose of that right.
He nevertheless treated enforcement against the Crown as a separate question. The King’s actual possession, the means of obtaining a release of that possession, and the statutory jurisdiction of the Exchequer required consideration. Recognising a right to redeem was not the same as saying that the King could be compelled to reconvey through the ordinary process used against a private person.
Hale also pointed out that the Attorney General was prepared to allow redemption on payment. That made the rival claims to the money particularly significant. His view was that, as between an executor and an heir, the executor should receive the mortgage money because it was regarded as personal estate.
Atkyns’s reasoning and the case’s significance
Atkyns strongly considered that Pawlett ought to obtain equitable relief against the King. His reasoning was that the Crown was the source of justice and equity: it would be inconsistent with that position to assume that an equitable claim enforceable against an ordinary person necessarily failed against the Crown.
The case illustrates the proprietary character of the equity of redemption. The mortgagor’s ability to recover the land on satisfying the mortgage was treated as more than a contractual claim against the first mortgagee. At the same time, the judges’ discussion distinguished that substantive interest from questions about Crown procedure and the proper recipient of the redemption money.
Original report: Hardres’s Reports, pages 465–469.
