It seems by a deed executed in 1812, power was given to Mr. Dalton to raise a sum of 20,000l. for his own use, and besides that, a term was created for the purpose of providing portions to the amount of 20,000l. for his younger children. It is unnecessary to say any thing respecting the limitations of the estate. In the year 1824, and by the execution of the power to raise 20,000l., Mr. Ingram became the owner of the charge of 20,000l. on the Shanks estate. Contemporaneously with this, other estates, called the Bagber and Semley estates, were conveyed to trustees, on trust to raise money to be applied, in the first place, in exoneration of the charges on the Shanks estate. It does not appear by these deeds, that the incumbrancer on the Shanks estate had any right to interfere, in any way, with the execution of the trusts relating to the Bagber and Semley estates, although, in one view of the subject, it might be said that the mortgage, though secured on the Shanks estate, was to be provided for by means of the trusts affecting the Bagber and Semley estates. After all, the legal right of the mortgagee rested solely on the Shanks estate as far as now appears.

This bill is filed for the purpose of carrying into execution the trusts relating to the Bagber and Semley estates, calling on the trustee to account for the receipts and proceeds in respect of a portion of the estate that had been sold, and praying a sale of that part of the estate which remains unsold, and that the money may be applied, according to the trusts, in exoneration of the Shanks estate.

The

The trustee, being called upon to render his accounts and carry the trusts into execution, alleges, that the Defendant Beavan, who now represents Ingram, has an interest in the execution of the trusts. The words as alleged in the bill are not so, but "that he has an interest in the matters in question in this suit." The matters in question in the suit are the matters relating to the execution of the trusts of the Bagber and Semley estates. Now this is quite contrary to the view which is taken of the matter by the Plaintiff; and accordingly the Plaintiff, after stating that this is alleged by the trustee, charges the contrary of these pretences to be true, and charges that Mr. Beavan has not "any legal or equitable interest in the Bagber and Semley estates, or the rents and profits thereof, not being entitled, in any way, to any estate or interest therein," that is, in the Bagber and Semley estates, " or charge thereon, under the indentures dated on the 5th and 6th of April 1824;" therefore distinctly charging he has no interest, "but nevertheless he makes some claim to be interested therein," that is to be interested in the Bagber and Semley estates, under these deeds, I cannot construe it in any other way "the nature whereof he ought to set forth."

Now to this bill there is a demurrer for want of equity, and the first ground of demurrer is, "I am a mortgagee on the Shanks estate, and you do not offer to redeem me." If the question in this cause related to the Shanks estate, I should say that this was a decisive answer to this bill, for I take it to be settled, that the owner of the equity of redemption cannot make a mortgagee a party to any suit in this Court, without offering to redeem him; but there is no part of this suit which has any regard to the Shanks estate, except only in this way, that the persons interested in the Shanks

1844.

DALTON

v.

HAYTER.

1844.

DALTON

v.

HAYTER.

estate desire to have an execution of the trusts relating to the Bagber and Semley estates, in order that the money to arise therefrom may be applied in exoneration of the Shanks estate.

But it is not attempted to support the bill on that alone. Mr. Wood has very properly admitted that a mortgagor cannot make a mortgagee a party in respect of his mortgage estate, without offering to redeem him. But he says this: you claim to be entitled; you have filed a demurrer to this bill, by which you admit every thing which is distinctly charged: it is distinctly charged that you claim to be interested in this property, the Bagber and Semley estates under those deeds. You admit that for the purpose of the demurrer, and thereby at the same time admit, that the Plaintiff cannot have a sale of this estate and the execution of these trusts, otherwise than in your presence.

The answer given to that is, that this allegation is much too vague, and that the Plaintiff ought to have alleged the interest in some more distinct manner.

I am certainly very desirous not to introduce a rule by which persons can be brought into Court on mere vague charges of having an interest in the matter; but I think the most useful operation of courts of equity would be very much diminished, if persons were not under the necessity of disclosing the nature of their claims, which, on some occasions, they are unwilling and the Plaintiff is unable to state. The substance of the bill is this: the Plaintiff desires to have the execution of the trusts affecting the Bagber and Semley estates. He says, you, the Defendant, claim to be interested in them: I deny your claim altogether; but in order that I may be able to meet and rebut your claim and answer it, let me know the whole particulars of it.

I must repeat the observation made in one of the cases cited, that I think the Defendant has a little "mistaken his way" in admitting his claim by the demurrer. It is not like the case of Plumbe v. Plumbe (a), a mere general allegation that he has some interest; but an allegation of an interest following in the same sentence the denial of being interested under those deeds. It is stated in this way. I charge you have no interest under these deeds, nevertheless you claim an interest; let me know what it is you claim. Under these circumstances, I do not think the demurrer can be allowed.

With regard to the other question as to parties: when a Defendant demurs for want of parties, he ought to shew, that, according to his own case, another party is wanted. The Defendant says, if I am made a party, there is another person, who, in relation to another part of the case, ought to be brought before the Court, in order that his interest may be administered. That, however, has nothing to do with this Defendant; he files this demurrer for his own benefit, and has nothing to do with the following charge of 20,000l. to be raised under the term created for that purpose. The demurring Defendant has nothing to do with this claim; he claims paramount to the term; but whether paramount or subsequent does not signify: he claims not at all under the term. I think the Defendant has nothing at all to do with it. It is argued that there will be a defect as to the parties at the hearing, and that the Defendant desires not to be delayed; but I think this demurrer cannot be allowed upon that ground.

It has been said that the Defendant may have other interests than those suggested by the bill; but I am of opinion

(a) 4 You. & Coll. 345.

1844.

DALTON

บ.

HAYTER.

1844.

DALTON

บ.

HAYTER.

opinion that the bill relates only to the interest he may have in these estates under the deeds; and if the Defendant answers that he has no interest whatever under these deeds, it seems to me, that in the present state of this record he will have answered the bill. If, on the other hand, he has other claims than those in respect of those deeds, it concerns himself to say, that this property is not to be disposed of in his absence; and when he sets forth that claim, he will, for his own security, have his interest stated in such a manner that he shall be protected.

The demurrer must be overruled; but I shall give no costs on either side.

NOTE. An appeal to the Lord Chancellor is pending.