1. The question in this application is whether the applicants, who are the attaching creditors of the shares of certain of the co-parceners of the joint estate are entitled to priority over a mortgage executed pending the partition suit under an order made in that suit by this Court dated the 5th May 1902.
2. The applicants have in their respective suits obtained decrees for payment of moneys due to them from their judgment-debtors. These decrees were made prior to the order directing the Receiver to borrow money on mortgage of the joint estate, but the attachments effected under these decrees are of a date subsequent to that of the order directing a mortgage by the Receiver. The mortgage was executed on the 11th May 1903, that is to say after the attachments had been made. The attachments were made in the ordinary course by prohibitory order served on the Receiver of the joint estate directing him not to part with the money or property appertaining to the shares of the judgment-debtors, until the further order of the Court.
3. Now it has been urged that the mortgage executed by the Receiver being subsequent to the attachments must be held to be subject to the attachments, and that the attaching creditors are therefore entitled to priority. The object of the mortgage was to preserve the properties, and as to this there is no contention. The suit, in which the order to mortgage was made, is not an administration suit, but on the other hand it is a suit in which the Court is asked to partition the joint estate between the different shareholders, and therefore one in which the respective rights and liabilities of the co-sharers in the joint estate must be worked out in order to ascertain the shares to be allotted to each co-sharer. The attaching creditors are in no better position as to the properties ultimately to be allotted to the judgment-debtors in respect of their shares than the judgment-debtors themselves. They attach shares of joint owners pending a partition by the Court and must take subject to all the liabilities and obligations of the joint members of the family arising in the course of that partition suit; and if, for the purposes of the partition, the Court directs that the whole of the joint estate should be mortgaged, such order can only be regarded as for the benefit of the sharers in the joint estate, and also of those attaching creditors, who must accept not only the benefit, but the obligation of the mortgage. It would be impossible for the Court to carry into effect a partition of the joint estate, if particular creditors of particular owners could be heard to say they are entitled to priority over persons, who have advanced money for the purpose of the partition, and on the faith of the Court's order giving them a first charge on the property to be partitioned.
4. The security cannot therefore be treated as subject to claims of either co-sharers or their creditors.
5. If this be the correct view, then it follows that it is immaterial what are the dates of the order under which the mortgage in question was executed or of the mortgage itself. The point is as to whether the suit for partition of the joint estate was pending at the time of the attachments, and if it was, then even if the order of the Court and the mortgage executed under that order were subsequent to the attachment, the mortgagee would still be entitled to priority. But here by the order of the 5th May 1902 the mortgagee was told that his mortgage was to be a first charge, and the Court cannot break faith with him and give priority to attaching creditors, whose rights accrued subsequent to the order in question. I hold therefore that the attaching creditors are not entitled to priority over the mortgagee. The application is dismissed with costs the costs of the Receiver to be taxed as between attorney and client.