1844.-Smith v. The Earl of Effingham. been dealt with in a suit to which the plaintiffs had not been made parties. The material circumstances were as follows:— The defendant, Francis Ward Primrose, was tenant for life of the freehold estates in question, subject, however, to an outstanding satisfied term of 500 years, and also to another outstanding satisfied term of 1000 years. He was also entitled to a copyhold estate, in respect of which the plaintiff made a claim by his bill; but which, having been abandoned at the bar, it is not necessary further to notice. [*358] The defendant, Mr. Primrose, being so entitled, in consideration, as it was said, of 26607., to him paid by the plaintiff Dudgeon, executed an indenture dated the 15th of November, 1817, and thereby granted to Dudgeon an annuity of 3801. for the life of the grantor, and by the deed covenanted to pay the annuity. On the same day, Mr. Primrose executed a power of attorney, authorizing certain persons, by confession or otherwise, to suffer judgment to be entered up against him, in an action of debt, for 53201. and costs, at the suit of Dudgeon, subject to defeasance on due payment of the annuity. Pursuant to this warrant of attorney, judgment was signed, and the docket entered on the 15th of December, 1817. Under these circumstances, Mr. Dudgeon having the judgment, and under it a general security, but no specific lien on the land, Mr. Primrose granted another annuity to William Brown, and by indenture, dated the 9th of December, 1818, made between Mr. Primrose of the first part, Brown of the second part, and Edward Howard of the third part, Primrose, in consideration of 5000%. paid to him by Brown, granted to Brown a rent charge of 600l., chargeable upon and yearly issuing out of his freehold and copyhold estate, for 100 years if Primrose should so long live, with power of distress and entry, and a demise to Howard, as trustee, for better securing the annuity. On the death of William Brown, the annuity became vested in the defendant, Robert Brown, his representative, who was, by the bill, alleged to be a trustee thereof for the defendants the Earls of Effingham and Rosebery, and William Harvey. [*359] *Again, on the 2nd of August, 1819, Primrose, by indenture dated on that day, in consideration of 350l. paid 1844. Smith v. The Earl of Effingham. to him by Henry Pearson, granted to Pearson an annuity of 501. for the life of the grantor, and covenanted to pay the same; and for the securing that annuity, Primrose executed a warrant of attorney to confess judgment, which was accordingly entered up in or as of Hilary term, 1820. This annuity had become vested in the defendant, James Henry Mann. On the 16th of August, 1819, Primrose, in consideration of 7001. paid to him by Richard Brydges, granted to Brydges an annuity of 1001. for the life of the grantor, and covenanted to pay the same, and, for better securing the payment thereof, executed a warrant of attorney to confess judgment, which was accordingly entered up in Hilary term, 1820. This annuity had become vested in the defendant, James William Smith. And on the 7th of December, 1819, Mr. Primrose executed an indenture of that date, made between himself of the first part, Edward Howard of the second part, John Waite of the third part, and James Gibbs of the fourth part, and thereby, in consideration of 14007. paid by Waite, granted to Howard, in trust for Waite, an annuity of 2007. for 100 years, if Primrose should so long live; and for the purpose of better securing the same, demised his freehold estate to Gibbs for ninety-nine years, if Primrose should so long live, on trust for securing the payment of the annuity. It was said, that after the death of John Waite, this annuity and the securities for the payment thereof were assigned to the defendant Mr. Bateman and Mr. Shepherd, for the benefit of the Earls of Rosebery and Effingham and William Harvey. *Thus, it appeared, that before the year 1820, Mr. [*360] Primrose had granted five several annuities, of which three, viz. the annuities granted to Dudgeon, Pearson, and Brydges, were secured by grant, covenant and judgment only, whilst the two annuities, granted to Brown and Waite respectively, were secured by demises of the estate. Dudgeon's annuity was paid up to the 15th of November, 1820, but afterwards became in arrear; and it was in this state of things, and on the 6th of November, 1822, that Dudgeon, by Mr. Alderson, his attorney, caused a writ of elegit to be issued on his judgment, and there having been a writ of inquisition duly reVOL. VII. 39 1844. Smith v. The Earl of Effingham. turned, he commenced an action of ejectment to recover possession of a moiety of the land. It was said, that this action to recover possession of a moiety of the land was stopped, in consequence of a discovery of the outstanding terms to which the life estate of Mr. Primrose was subject. However this might be, the action was non prossed in Hilary term, 1826, and it did not appear that Mr. Dudgeon took any further step for enforcing payment of his annuity. He assigned it to his co-plaintiff Smithi, in November, 1838, and this bill was filed on the 7th of March, 1839, between eighteen and nineteen years after the last payment of the annuity made to Dudgeon. In the meantime, however, a bill was in 1823, filed in this court by Robert Brown, the executor of William Brown, the grantee of the annuity of 6007., and by the Earls of Effingham and Rosebery, William Harvey, Lord Dalmeny, and by Messrs. Bateman and Shepherd, against Howard and Gibbs, Shaw, Hermon and Chappell, George Walpole Clement, Anthony Pierce, Henry Pearson, Richard Brydges, and Mr. Primrose, whereby, after stating the deed of the 9th of December, 1818, and [*361] a deed *endorsed thereon, dated the 7th of March, 1822, it was prayed, that the freehold estate of Mr. Primrose, for the residue of the demise created by the indenture of the 9th of December, 1818, might be assigned, and that all the right and estate of Howard under the same indenture might be assigned and conveyed to such person as the plaintiff Robert Brown should direct, and that all proper parties might join in the necessary deeds for so doing; and that Howard and Gibbs might be decreed to execute the indenture of the 7th of March, 1822, and to deliver up to the plaintiff, Mr. Jones Bateman, all the deeds belonging to the estate; and that all necessary declarations might be made and directions given. This bill was three times amended; and it was not brought on to be heard till the 26th of July, 1830, before which time, and in Easter term, 1829, Brydges, to whom the annuity of 1007. had been granted, filed his bill, praying for a declaration that the estates in question were subject to a charge or lien in his favor, or that he might, by aid of the court, have the benefit of his judgment. 1844. Smith v. The Earl of Effingham. On the 26th of July, 1830, it was by the Vice-Chancellor declared, in both the causes, that Brown, in respect of his annuity of 600l. was entitled to possession of the deeds anterior to his deed of charge, and the defendants, Shaw, Hermon and Chappell, were ordered to deliver the same deeds to Brown, and the defendant Howard was ordered to assign, to such person as Brown should direct, the term of ninety-nine years vested in him, and Howard and Gibbs were ordered to execute the deed of the 7th of March, 1822. And it was declared that Brown had the first charge on the life interest of Primrose, under the indenture of the 9th of December, 1818; that Mr. Bateman, in trust for the Earl of *Rosebery, had the second charge [*362] on the same life interest, under the indentures of the 7th of December, 1819, and the 7th of March, 1822; that Brydges, a plaintiff in the first, and a defendant in the second cause, had the third charge, by virtue of his judgment; and it was declared, that a conveyance dated the 22d of May, 1821, was subject to such charges. Certain accounts were ordered, and further directions reserved. After the master's report, and after certain supplemental bills had been filed, the causes came on to be heard again; and by a decretal order, made on the 23d of July, 1832, after directing the application of a balance found to be in the hands of the Earl of Etingham and Mr. Harvey, it was ordered that Brown should continue in possession of the estates, and out of the rents retain, in the first place, certain costs, and in the second place, the annuity to which he was entitled under the indenture of the 9th of December, 1818, and, in the third place, to pay certain costs of the Earl of Rosebery, Mr. Bateman, Mr. Shepherd, and of Lord Dalmeny; and, in the fourth place, to keep down the annuity created by the indenture of the 7th of December, 1819, and, in the fifth place, to pay to the representatives of Brydges their costs of the suit; and, in the sixth place, to keep down the incumbrance under the judgment obtained by Brydges in Hilary term, 1820; and, in the seventh place, to pay to Henry Pearson his costs of the suit; and, in the eighth place, to keep down the incumbrance of Henry Pearson, under his judgment obtained in Hilary term, 1820. 1844.-Smith v. The Earl of Effingham. By a subsequent order, dated the 31st of May, 1837, Gardiner Chapman was appointed receiver of the estates, and he [*363] was directed to receive the rents and apply them *in the manner directed by the order of the 23d of July, 1832. It should be stated that Messrs. Howard and Gibbs acted for both parties in the grants of the several annuities, and that Mr. Alderson acted as attorney and solicitor for Dudgeon in the matter of the elegit in 1822, and for the plaintiffs in the suit of Brown v. Howard. On the 7th of March, 1839, Smith, and Dudgeon his assignor, filed this bill against Mr. Primrose and the several persons claiming to be incumbrancers on his life estate. The bill alleged that the plaintiffs in the two previous suits had, from fraudulent motives, omitted to make him a party to those suits, though they had notice both actual and constructive (through their solicitors) of his incumbrance; and it prayed for a declaration that the plaintiff Smith was entitled, in equity, to stand as first incumbrancer on the estates for his annuity and the arrears thereof, and that an account might be taken of what was due for such arrears, and that for the purpose of paying the same and securing the future payment of the annuity, the interest of Mr. Primrose in the estates might be sold, or that the plaintiffs might be let into posses. sion. The bill also prayed that Chapman, the receiver, who had been appointed receiver of the same estate in the other cause, might pay to Smith the balance of rents in his hands, and might be discharged.. The bill also prayed that it might be taken to be a bill in the nature of a bill of review, and supplemental to the said cause of Brown v. Howard, and the causes connected therewith, and that, if necessary, the decrees and orders of the 26th of July, 1830, the 23d of July, 1832, and the 31st of May, 1837, and the other orders, might be reviewed or varied; or that the plain[*364] tiffs *might be permitted to proceed at law for the recovery of the said annuity of 3801., and the arrears thereof, notwithstanding the order of the 31st of May, 1837, and the appointment of receiver, and that the defendants might be restrained from setting up the said terms or either of them, or any |