1850.-Warde v. Warae. considered as the same person: a sort of legal fiction meaning that their interests are, in a great measure, identified. But I consider that that makes no difference at all, except so far as it would be a circumstance rendering it much more probable that the solicitor was employed as the common solicitor of both. [*28] But exclude that fact and once establish that the *solicitor was acting only for the party selling the estate, then I think that the circumstance of the party having the charge being the wife of the party selling, makes no difference. It makes it far more probable that the solicitor was employed for both, but, in any other respect, I think it makes no difference at all. And, that being so, I come to the conclusion that there is nothing here which amounts to an admission that any of these documents are documents which the plaintiff is entitled to see. They are sworn, distinctly, by Mr. Warde, in his affidavit, to have been stated and taken on his sole behalf, and not on behalf of himself and any other person, which last words include his wife: and the only way in which that is attempted to be met, is the admission in the answer of Mr. Warde (and there is an exactly similar admission in the answer of Mr. Bury) that the plaintiff had no separate solicitor or counsel, and that she entered into the arrangement for the release of the Warwickshire estates, and executed the indenture of September, 1845, under the advice of Mr. Warde's solicitor and counsel, and without any other legal advice. It does not at all follow that she entered into it in pursuance of certain opinions that her solicitor, or the party acting for her, had taken. It is only the advice of the solicitor, who, acting, in taking these opinions, for the husband, thought himself warranted in advising the wife to execute that deed, and she, upon that advice so given, does the act. Whether, by amending the bill, any charge can be introduced showing that Mr. Warde either had actually acted as her agent, or led her to consider that he was acting as her agent in taking those opinions, is a matter on which I need not speculate. Such a case might be made; but, in the present state of the [*29] pleadings, I think that, if the plaintiff had been a stranger, there is nothing to show that these cases were stated 1850.-Bowker v. Bull on her behalf, and that the circumstance of her being the wife of the defendant makes no difference. Consequently, this motion, so far as it relates to the documents alleged to be privileged, must be refused. BOWKER v. BULL. Mortgagor and Mortgagee.-Principal and Surety.-Redemption. Tacking. 1850: 8th November and 2d December A. mortgaged his freehold and copyhold estates and some drainage bonds, and, by the same deed, his daughters mortgaged their freehold and copyhold estates to B. to secure 6,000%, lent by B. to A., and the deed declared that, without preju. dice to any of the rights or remedies of B., his heirs, executors, &c., as between A., his heirs, executors, &c., on the one hand, and the daughters, and their heirs, executors, &c., on the other hand, A., his heirs, executors, &c., should be primarily liable to the payment of the 6,000%., and that his freehold and copyhold estates therein comprised should be primarily liable to answer and make good the 6,000l. Six years afterwards, A. mortgaged his freehold and copyhold estates comprised in the prior mortgage, and also the drainage-bonds, to B. to secure 7007. lent to him by B. Held, that B. was not entitled, as against A.'s daughters, to tack his second mortgage to the first, but that the daughters were entitled to redeem the first mortgage on payment of the 6,000% By an indenture dated the 11th of March, 1836, the defendant, Bull, mortgaged certain pieces of land, situate in March in the Isle of Ely, to Elizabeth Stevens, since deceased, in fee, for securing 400l. and interest. By an indenture dated the 3d of March, 1843, he mortgaged the same pieces of land, subject, expressly, to Mrs. Stevens' security, together with certain copyhold lands and drainage-securities, and his wife and two daughters, mortgaged certain freehold and copyhold hereditaments, of which the wife was seized for life with remainder to her daughters in fee, under the will of Eleanor Ward, to the plaintiff, for securing 5,600l. and interest: and that indenture, at the end of it, declared that, without prejudice to any of the rights or remVOL. I.-N. S. 3 1850.-Bowker v. Bull. edies of the plaintiff, his heirs, executors, administrators [*30] or assigns, as between *the defendant, Bull, his heirs, executors and administrators on the one hand, and Bull's wife and daughters and their respective heirs, executors and administrators on the other hand, Bull, his heirs, executors and administrators should be primarily liable to the payment of the principal and interest moneys intended to be thereby secured; and that the freehold hereditaments thereinbefore described, but not comprising the hereditaments devised by the will of Eleanor Ward, and the copyhold hereditaments therein before described and covenanted to be surrendered, not comprising any copyhold hereditaments devised by the said will, should be primarily liable to answer and make good the same principal and interest moneys. On the 5th of March, 1844, the plaintiff took a transfer of Mrs. Stevens' mortgage. By an indenture dated the 9th of May, 1849, Bull mortgaged, to the plaintiff, all the freehold and copyhold hereditaments comprised in the before-mentioned securities of which he was seized, and also the drainage-securities, for securing 7001. and interest. Mrs. Bull died in August, 1849. Under the Orders of April, 1850, the plaintiff filed a claim against Bull and his two daughters, Eleanor Ann and Sarah Elizabeth, stating that, under an indenture dated the 3d of March, 1843, and made between Joseph Bull and Susannah, his wife, since deceased, of the first part, their two daughters of the second and third parts, and the plaintiff of the fourth part, and of an indenture dated the 5th day of March, 1844, and made between Richard Baxter, the executor of Mrs. Stevens, of the first part, William Watts, the heir of Mrs. Stevens, of the second part, Bull of the third part, and the plaintiff of the fourth part, [*31] and of an indenture dated the 9th of May, 1849, and made between Bull of the one part, and the plaintiff of the other part, the plaintiff was a mortgagee of certain freehold and copyhold or customary property therein comprised, and also assignee of certain indentures therein mentioned, (being 1850.-Bowker v. Bull. charges on certain taxes(a),) for securing, altogether, the sum of 6,7007. and interest; and that the time for payment thereof had elapsed; and that Bull and his daughters were entitled to the equity of redemption of the mortgaged premises: and the plaintiff, therefore, claimed to be paid the sum of 6,7001. and interest and the costs of this suit; and, in default thereof, to foreclose the equity of redemption of the mortgaged premises, and, for that purpose, to have all proper directions given and accounts taken. Mr. Rolt and Mr. Toller, for the plaintiff, said that the drainage-securities were not mentioned in the declaration at the end of the deed of March, 1843; and they contended that Eleanor Ann Bull and Sarah Elizabeth Bull were not entitled to redeem, except on payment of the 700l. and interest, as well as the 6,0007. and interest. Mr. Bethell and Mr. Osborne, for Eleanor Ann Bull and Sarah Elizabeth Bull, said that their clients were only sureties for their father; and that it was a well-established rule of a Court of Equity, that if a surety paid the debt of the principal debtor, he was entitled to the benefit of all the securities which the creditor held for the debt: Copis v. Middleton:(b) and that it would be a violation of that rule to hold that their clients were not entitled to redeem the property comprised in the mortgage of March, 1843, on payment *only of the principal and in. [*32] terest due on that mortgage. They referred also to Wright v. Morley.(c) Mr. Cairns appeared for Bull, and Mr. Shebbeare for another party. 2d December.-THE VICE-CHANCELLOR:-This was a claim of foreclosure, by the plaintiff, against Mr. Bull and his two (a) The drainage-securities. (b) Turn, and Russell, 224; and 12 Eng. Ch. R. part 1, 223, Am. Ed. 1850.-Bowker v. Bull. daughters, as defendants. I took time to consider a single point which was raised, in the argument, under these circumstances. By a deed of the 3d of March, 1843, made between Joseph Bull and Susannah, his wife, of the first part, their two daughters and only children, Eleanor Ann Bull and Sarah Elizabeth Bull, of the second part, and William Bowker of the third part, reciting the will of Eleanor Ward, under which Mrs. Bull was tenant for life of a certain messuage called Westry House, situate at March in the Isle of Ely, with divers lands adjoining, with remainder, after her death, to her two daughters, the said Eleanor Ann Bull and Sarah Elizabeth Bull, as tenants in common in fee; and also reciting that Joseph Bull was seized in fee of two other estates in March, or had an absolute power of appointing the same, subject only, as to one of such estates, to a mortgage in fee, to Elizabeth Stevens, for securing a sum of 4097. and interest: it was witnessed that, in consideration of a sum of 5,0007, advanced and lent by Bowker to Bull, and for a nominal consideration, Joseph Bull and Susannah, his wife, and their two daughters, conveyed all the above-mentioned hereditaments to Bowker in fee, subject, nevertheless, to a proviso for re[*33] demption *on payment of 5,600l. and interest on the 3d of March, 1844. There was also a covenant to surrender, by way of further security, some copyholds held partly by Mrs. Bull and her daughters, under the will of Eleanor Ward, and, partly, by Joseph Bull, in connection with one of the beforementioned freehold estates of which he was seized in fee. The deed also recites that Joseph Bull, in right of his wife, was entitled to indentures of assignment of taxes arising from fen lands in March; and then he and his wife assign these indentures, to Bowker, subject to the same proviso for redemption on payment of the before-mentioned sum of 5,600l. and interest. The deed contains a power of sale, (a) by Bowker, in case of default in payment of the sum secured or the interest; and, finally, there is a proviso that, as between Joseph Bull on the one hand, and his wife and daughters on the other hand, Joseph Bull should (a) This power was not noticed in the papers with which the reporter was fur nished. |