1844.

THIS

DALTON v. HAYTER.

HIS case came on upon a general demurrer for want of equity and want of parties. The material statements of the bill were as follow:

By a settlement executed in 1812 the Shanks estate was settled on Nathaniel Dalton for life, with remainder to Robert F. G. Dalton for life, with remainder to his first son in tail (the Plaintiff), with power to Robert F. G. Dalton to charge the estate with 20,000l. for his own use, and a term was limited to Lethbridge and Grant, in trust to raise 20,000l. for the younger children of Robert F. G. Dalton.

April 17.

A person entitled to an equity of redemption cannot make the mortgagee

a party to a suit respecting the mortgaged estate without offer

ing to redeem; but where a

mortgagor,

by deed to

which the mortgagee was not a

party, had conveyed another estate to trustees to

Previous to 1824 the Shanks estate had been charged, under the power, to Ingram with 10,000l. out of the sell and pay

20,000l.,

off the mort

gage, so as to exonerate the

mortgage estate, it was held that a person interested in the equity of redemption might file a bill, not offering to redeem, against the mortgagee and trustees, to have an execution of the trust.

An estate was mortgaged, and by a deed to which the mortgagee was not a party, the mortgagor conveyed another estate to trustees to sell and pay off the mortgage, &c. A party interested in the equity of redemption filed a bill against the trustees and mortgagee to have an execution of the trusts of the deed; and it charged, that the parties to the trust deed did not intend to create any trust for the mortgagee, and that the trustees alleged that the mortgagee was interested in the matters in question, but the Plaintiff charged the contrary, and that he had no legal or equitable interest in the estate, not being entitled to any interest under the deed of trust, "but nevertheless he made some claim to be interested therein, the nature of which he ought to set forth." Held, that this statement of claim prevented a general demurrer by the mortgagee.

To sustain a demurrer for want of parties, the Defendant must shew that the absent person is a necessary party according to the case of such Defendant.

An estate was charged with a mortgage and with portions, and a term was vested in trustees for securing the portions. A second estate was conveyed on trust to sell and pay the mortgage and portions. In a suit for the execution of the trusts, the mortgagee objected that the trustees of the term were not parties; but the ob jection was overruled.

1844.

DALTON

บ.

HAYTER.

20,000l., and Robert F. G. Dalton being about to charge it with the remaining 10,000l., an agreement was come to between Nathaniel Dalton and Robert F. G. Dalton, by which Robert F. G. Dalton, for valuable consideration, agreed to throw the two charges of 20,000l. primarily upon the Bagber and Semley estates, to which he was entitled in reversion in fee expectant on the decease of Nathaniel Dalton.

Accordingly by indenture dated the 6th of April 1824 made between Robert F. G. Dalton, Nathaniel Dalton, and the Defendant Hayter, a trustee, the Bagber and Semley estates were conveyed to Hayter, subject to the life interest of Nathaniel Dalton therein, upon trust, on the death of Nathaniel Dalton, to sell, and apply the produce in payment of another mortgage of 10,0002., charged exclusively on the Bagber and Semley estate, and vested in 'Court, and afterwards to pay Ingram the mortgage for 20,000l., and then to pay the 20,000l. for younger children's portions. The mortgagees were not parties to this deed. At the same time, the Shanks estate was charged to Ingram with the remaining 10,000%.

Ingram's mortgage for 20,000l. became vested in the Defendant Beavan, and A'Court's mortgage on the Bagber and Semley estate became vested in Moody. Nathaniel Dalton having died in 1825, this bill was filed against Hayter the trustee, Moody the mortgagee on the Bagber and Semley estates, Beavan the mortgagee for 20,000l. on the Shanks estate, and against the younger children. The trustees of the term of 1000 years for securing the younger children's portions were not made parties to the suit. The bill sought to charge the trustee for breach of duty in not having sooner sold the estate, and it prayed for a sale of the Bagber and Semley estates, and for the application of the produce according

to

to the trusts of the deed of 1824, but it sought no specific relief against the mortgagees, nor did it offer to redeem them.

The bill contained the following charges: "that it was not, in any manner, the intention of the parties to the said indenture of the 6th of April 1824, to create any trust for the said Charles Ashe A' Court, or the said Christopher Ingram, or the younger children entitled to such portions as aforesaid, and charged on the said Shanks estate, but solely to exonerate the said Shanks estate from the aforesaid charges thereon."

"And the Defendant Hayter alleges, that the Defendants Moody and Beavan, and the brothers and sister of the Plaintiff are interested in the matters in question in this suit; but the Plaintiff charges the contrary to be true, and that the said last-mentioned parties have not any legal or equitable interest in the said Bagber and Semley estates, or the rents and profits thereof, not being entitled, in any way, to any estate or interest therein, or charge thereon, under the said indenture secondly hereinbefore stated, and dated the 6th of April 1824, but nevertheless they make some claim to be interested therein, the nature whereof they ought respectively to set forth."

To this bill the Defendant Beavan filed a demurrer for want of equity and want of parties.

Mr. Kindersley and Mr. Beavan in support of the demurrer. Admitting, for the purpose of this demurrer, every allegation in this bill to be true, then it appears that the Defendant Bearan has no interest in the matters in question, or in the Bagber and Semley estates, but he merely "makes some claim to be interested therein." It is quite immaterial what claim he may make, if, for the

purposes

1844.

DALTON

บ.

HAYTER.

1844.

DALTON

v.

HAYTER.

purposes of the Plaintiff's argument, he must be assumed to have no interest; "a general vague charge that a Defendant claims an interest in the matters in question in the suit, is insufficient to avoid a demurrer." Plumbe v. Plumbe. (a) If it were otherwise the most perfect stranger might, by means of such a charge, be made a Defendant to any suit in equity. The Plaintiff seeks no relief against the Defendant: if he wishes to know his claims on the estate it is matter of discovery merely.

Secondly, no bill can properly be filed against mortgagee by a party entitled to the equity of redemption, except for the purpose of redeeming him; Tasker v. Small (b), Pearse v. Hewitt. (c) It is the offer which the party entitled to the equity of redemption makes to redeem, and which subjects him to be foreclosed, that raises his equity; without that, this Court will consider the mortgagee as absolute owner of the estate. Suppose this suit to go on, all the accounts will be taken, and then it will be found that the produce of the second estate is insufficient to pay off the first mortgage to A'Court ; but even if there remained a surplus, a mortgagee is not bound to receive a payment in part. It will be said that the Defendant may be interested in the produce of the estate, but that will not make him a proper party. None can be properly parties to a suit for specific performance except the parties to the contract; the ccstuis que trust, though interested in the produce cannot be made parties; Tasker v. Small. (d) It may then be said that he is interested in the account; but "a party is not to be brought before the Court to stand by that he may be bound by the account to be taken between two other persons;" Ramsbottom v. Wallis. (e)

(a) 4 Y. & Col. 345.

(b) 3 Myl. & Cr. p. 69.

(c) 7 Simons, p. 479.

(d) 3 Myl. & Cr. p. 68. And

Thirdly,

see Wood v. White, 4 Myl. & Cr. 460.

(e) Coote on Mortgage, p. 710., and Jacob, p. 352.

Thirdly, the trustees of the term are necessary parties. If the younger children are necessary parties their trustees, who have the legal term, are also necessary parties to this suit.

Mr. Wood, contrà, in support of the bill. The Defendant should have disclaimed, otherwise the Court must make a declaration of his right before it can administer the trusts. The Plaintiff, who is interested in the Shanks estate, and also in the Bagber estate, desires to have the trusts affecting the latter estate carried into effect, so as to exonerate the Shanks estate. He considered that the Defendant Beavan had no interest in the Bagber estates; but the trustee insisted he had and that he was a necessary party. It is said that a general charge in the bill that a party claims an interest is not sufficient to entitle the Plaintiff to an answer, but though a witness cannot be made a Defendant, yet, "if the bill charges he is interested, the Defendant must plead and support it by an answer denying that allegation, and cannot demur;" Plummer v. May (a), Fenton v. Hughes. (b) The present bill expressly states that the Defendant claims an interest, and at the same time denies the claim; the Defendant ought, therefore, either to disclaim or to set out his claim, if any exist.

He admitted that the general rule was that, ordinarily, a mortgagee could only be brought before the Court for the purpose of redemption, but distinguished this case, which was for carrying the trusts of a deed into execution, and which could not be done in the absence of the parties interested or claiming an interest.

He contended that the trustees of the term were not necessary parties.

1844.

DALTON

บ.

HAYTER.

Mr.