1844. GREEN บ. BADLEY. pleadings this charge, and there were, at the hearing, persons capable of impeaching the conduct of the trustees in respect of it, yet they obtain this decree for an account scarcely differing from the most ordinary decree. When the parties came to take the accounts in the Master's office, the Master was not satisfied with the Plaintiffs being represented by the same solicitor as the Defendants, and directed the proceedings to be conducted by another solicitor, who became charged with the protection of the interest of the Plaintiffs; he had an opportunity of ascertaining what were the points in issue, and if he found that they were not properly put in issue, so as to enable his clients to obtain all the relief he thought them entitled to, he might, by the leave of the Court, have brought forward fresh charges by supplemental bill; but what he did was to adopt the proceedings, and to proceed to carry into execution the decree as he found it. I do not say that he was guilty of any neglect, but he could not act thus and afterwards claim other relief. If, from new circumstances, he considered his clients. entitled to further or different relief, he ought to have come forward with a proper application to enable them to have it. I am of opinion that the Plaintiffs must be considered as having adopted the whole proceedings. I must consider this case as prosecuted by the same solicitor from beginning to end, and that the Plaintiffs are not entitled to any relief different from that given by the original decree and consequent thereon. By that decree the common and ordinary account was directed, and the Defendants could never have imagined that it was open to the Plaintiffs to have any such relief against them as that which is now asked. I do not think, under the circumstances, I ought to direct any such inquiry as that which is sought, for the purpose of charging the Defendants with the loss. NOTE. See Garland v. Littlewood, 1 Beav. 527. 1844. GREENWOOD v. ROTHWELL. THE ques The tenant for life, with the concur remainder to his and subject as aforesaid, he gave executors. The testator died soon after, and, at his death, Jonas Greenwood had several children living. The executors proved his will. By an indenture, made in 1812, between Duckett of the first part, the executors of the testator of the second part, and Mann of the third part, reciting that 4067. was due on the mortgage, and that the executors had requested Mann to lend them the sum of 550l., as well rence of the executors, afterwards sold the purchaser, on payment of the original mortgage only, and the cause being set down on an objection to for want of parties, held that the Plaintiff was not, at present, bound to make the executors parties. Costs of setting down a cause on an objection for want of parties reserved to the hearing. 1844. GREENWOOD บ. ROTHWELL. to enable them to pay off the said sum of 4067., as also to enable them to discharge sundry other just debts, amounting together to the sum of 144/., which remained owing to other creditors of the testator, the property in question was conveyed by Duckett and the executors, for and during all the then residue and remainder of the several and respective terms of years therein, subject to redemption on payment of 5501. In 1823 Jonas Greenwood, the tenant for life, agreed to sell the premises to Abraham Tempest for 400l., and by deed dated March 1823, in consideration of 400l. paid by Abraham Tempest to Mann in satisfaction of his mortgage, and for a nominal consideration, the property was absolutely conveyed by Mann and Jonas Greenwood and by Joseph Greenwood and James Northrop, the executors, to Tempest in fee. The mortgage term was assigned in trust for the purchaser, and the term of 1000 years created by the will was merged. Jonas Greenwood further assured the property to Tempest by fine with proclamations. Tempest laid out a large sum of money on the property; and in 1826 he mortgaged it to Messrs. Rawson, and in 1835, Tempest and Messrs. Rawson, in consideration of 3000l., conveyed the property absolutely to the Defendant Rothwell. Jonas Greenwood died in 1840, and his children thereupon filed this bill, insisting that he was tenant for life only, and seeking to redeem on payment of the mortgage of 400l. and interest. It was decided on a former occasion that Jonas Greenwood was merely tenant for life. (a) The Defendant, by his answer, raised three objections for want of parties, two of which having been submitted (a) See 6 Bear. 492. to to by the Plaintiffs, it is unnecessary to state them. The third was as follows: "That if the Plaintiffs should be decreed to be entitled to any right or relief in the premises, then the proper accounts ought to be taken of and concerning the said testator's estate and debts, and other matters connected therewith, in the presence of all the necessary parties to such accounts." The cause was set down on the objection for want of parties, under the 39th Order of August 1841. (a) Mr. Turner and Mr. Thomas Turner for the Plaintiffs. The real and personal representatives of the testator are not necessary parties to the suit. It is not suggested that any debt or legacy now remains unpaid. Where executors having a power to mortgage for payment of debts exercise it, the Court has never held that they were necessary parties to a redemption suit, unless the equity of redemption is limited to them. You cannot combine a suit to administer an estate with a suit for redemption. Pearse v. Hewitt. (b) Mr. Roupell and Mr. Rogers for the Defendant. The trustees and executors are necessary parties to this suit. The Plaintiffs claim subject to the debts and legacies, and are entitled to nothing until they are paid. The Defendant insists that the executors and trustees have properly sold under the powers contained in the will: if the Plaintiffs dispute the validity of the acts of the executors, such executors should be brought here to contest that allegation. The MASTER of the ROLLS. The testator, by his will, charged his real estate, which 1844. GREENWOOD บ. ROTHWELL. 1844. GREENWOOD v. ROTHWELL. which was subject to a mortgage, with the payment of his debts, and created a term of 1000 years, by means of which the amount was to be raised by his trustees and executors. It does not appear that any thing was raised by virtue of this devised term; but after the testator's death, the trustees and executors joined in a transfer of the mortgage, and they on the same occasion raised an additional sum of 1447., which it was stated was necessary for enabling them to discharge sundry debts of the testator. I do not mean to deny that Rothwell may be entitled to credit for any portion of the money which may have been applied in payment of the testator's debts. Supposing that to be so, it will form part of Rothwell's defence to the suit. He has a right to say to the Plaintiffs, "You are not entitled to redeem me on payment of 400%., because a further sum of 1447. has been raised and applied in payment of the debts of the testator." But has the Defendant a right to insist that this matter shall be brought forward by the Plaintiffs, whose claim is to have the estate subject only to the mortgage for 400l.? I think not, for this is part of Rothwell's defence, which the Plaintiffs are not bound to bring forward. The question of costs was discussed, and Osborne v. Foreman (a), was cited. The MASTER of the ROLLS said he should reserve the costs until the hearing, when he should be better able to see into the real merits of the case. (a) 2 Hare, 656. |