Toomes v Conset (1745) 3 Atk 261
Equity requires consideration of substance rather than form of transaction
Facts
The property in question was the subject of a lease for sixty years. This lease had been granted as a collateral security against the sum of £3500. Upon expiry of the lease, the plaintiff (T) pled to be let into possession of the premises and for the security to be vacated or satisfaction thereof to be entered on the record.
Issue
T sought a reconveyance of the said premises as the collateral security was expired in order to allow for his continued possession of the premises.
Held
The Court of Chancery refused to allow a deed of mortgage which contained an agreement which allowed the lender to absolutely purchase (i.e. a proviso for redemption). According to the Lord Chancellor, allowing this would put the borrower at a disadvantage vis-à-vis the lender. The borrower is distressed at the time of the deed of mortgage and would be inclined to submit to any terms proposed by the lender. As the lease of sixty years had expired, T was only entitled to a conveyance of the premises in question, and to possession thereof, upon payment of what was due to the defendant. This case demonstrates the longstanding principle of equity that the substance of the transaction shall be considered rather than the form. The Court will treat a mortgage as a mortgage and nothing but a mortgage. This is now been an established principle for centuries (Grangeside Properties v Collingwoods Securities [1964] 1 WLR 139).
253 words
Updated 20 March 2026
This case summary concerns the historic Court of Chancery decision in Toomes v Conset (1745) 3 Atk 261, and the equitable principle that a mortgage will be treated as a mortgage regardless of its form — often expressed as the rule against clogging the equity of redemption. This principle remains good law. The article’s reference to Grangeside Properties Ltd v Collingwoods Securities Ltd [1964] 1 WLR 139 as a supporting authority is accurate. The broader principle has been reaffirmed in more recent case law, including Jones v Morgan [2001] EWCA Civ 995, where the Court of Appeal confirmed that the doctrine preventing clogs on the equity of redemption continues to apply, though the courts have indicated a degree of caution about extending it beyond established categories in commercial contexts. The article’s statement of the core equitable principle remains accurate. Students should be aware, however, that the precise scope and application of the anti-clog doctrine in modern commercial transactions has been subject to judicial scrutiny, and the area is not entirely settled at its margins.
