Independent of the objection to the title of the Plaintiffs, the effect of the statement is, that nothing passed by the will of Charles Tollet; and consequently the Defendants could have nothing in them, if it stopped there; but it proceeds farther; and the bill is really filed against these two persons, as having the legal estate by force of the decree and conveyance: otherwise the bill is misconceived; and these Defendants are not necessary parties; and have nothing to do with it, if the estate remains in the trustees under the will of the original testator, The bill certainly states it only as pretence: but then it founds the relief upon that. In such a case clearly the Plaintiffs are not entitled to the benefit of the conveyance, and to impeach the decree. First, they are bound by the decree; supposing, they have any title whatsoever; for when the tenant in tail was before the Court, whether the decree is right or wrong, all persons in remainder are bound by it, and cannot file a bill to impeach it. The decree was made in 1753. They could not rehear the cause or file a bill of review, if they were parties. No bill of review can be filed after twenty years: Smith v. Clay (4). But if only two years had elapsed after the decree and supposing the parties were not bound by it, under the circumstances what equity have they, George Tollet, the tenant in tail not dying till 1781, and Charles Tollet not till 1796? The Court would have made no decree against them; because they might have suffered a recovery; as in Challoner v. Murhall (5), Dunn v. Green (6), and Blake v. Blake (7), in the Court of Exchequer. Upon the merits there is no doubt; and as to the objection of form, that the defence might have been by plea, it would have been an extremely complicated plea; and if these Defendants have not the legal estate in them, there is a total defect of parties. The Lord Chancellor then observing, that the whole case was before him, and could not be more fully before him, and that this Court will never go beyond the tenant in tail in pos (4) Amb. 645. 4 Bro. C. C. 639, n. See also Hercy v. Dinwoody, ante, Vol. II, 87. 4 Bro. C. C. 257, and the note, ante, II, 15. session, (5) Ante, Vol. II, 524. (7) 3 P. Will. 10, Mr. Cox's 1799. FLETCHER v. TOLLET. 1799. FLETCHER v. session, and hold it necessary to make the reversioner a party to the suit, stopped Mr. Mansfield in support of the de murrer. TOLLET. [ 11 ] The Solicitor General, Mr. Lloyd, Mr. Cox, and They could not It is true in at The Plaintiffs state themselves to be entitled to the remainder in possession; the estate tail being spent by the failure of issue upon the death of Charles Tollet. Their title did not commence till his death in 1796. The Plaintiffs are not bound by the decree, not being parties. rehear the cause; or bring a bill of review. certain sense, the reversioner is not a necessary party to any suit, in which the tenant in tail is a party: but that cannot be applied to an adverse claim between the tenant in tail and the remainder-man and the reversioner. If the first tenant in tail was the only necessary party, why did Lord Hardwicke take that cautious step of taking the consent of the second tenant in tail? The tenant in tail is sufficient to sustain the rights of all the parties as to third persons, where the trusts of the will are carried into execution: but where the surplus of the estate, subject to the trusts, remains to be conveyed, the Court will never direct any other conveyance than according to the trusts; or if money is to be laid out in land, the Court will take care, that it shall be laid out, except where the person who would be tenant in tail of the land has himself the immediate remainder in fee. This decree was not necessary: nor is relief prayed in that cause. If a remainder-man or reversioner is never to be heard against a decree, which cuts off his interest without a recovery, he is in the mercy of the tenant in tail; who will always submit to a decree, which cuts off the remainder without a recovery. The decree was obtained by mistake, and surprise, and upon misrepresentation; and therefore the Court will not now permit that decree to have the effect contended for; especially upon an estate of 2000l. a year. If it had been stated to the Court, that the reversion in fee was not in Tollet himself, immediately expectant upon the estate tail, as it was conveyed away by his father to a stranger, the conveyance in fee to him would not have been directed; by analogy to the cases, where money, to to be laid out in land, has been directed to be paid to the person, who would be tenant in tail of the land, if purchased, with the immediate remainder in fee in himself, but where a recovery has been necessary, the Court would not deprive the remainder-man of his chance (8). In Equity the Plaintiff ought not to be bound by a conveyance directed under such circumstances. The manifest intention of the parties was to grant the reversion, such as it was. Challoner v. Murhall, and the other cases of that sort, proceed. upon a totally different principle, and apply to a different subject. Your Lordship decided Challoner v. Murhall upon the principle that, the copyhold being extinct by the enfranchisement, if that was not to operate as an extinguishment of the intail, it must exist for ever; and it was so considered by the Master of the Rolls in Philips v. Brydges (9). So interests in the nature of intails of freehold leases for lives are barred by the act of the parties, upon the principle, that no common recovery can be suffered: nor can there be properly an intail of them: therefore the party may dispose of them. Those cases as to copyholds (8) See Benson v. Benson, Short v. Wood, Chaplin v. Horner, 1 P. Will. 131, 471, 483. Edwards v. The Countess of Warwick, 2 P. Will. 173. Eyre's Case, Onslow's Case, 3 P. Will. 13. Trafford v. Boehm, 3 Atk. 440. 1 Ves. 176. 2 Bro. C. C. 160. Binford v. Bawden, ante, Vol. I, 512. The same course has been followed under the Act, 40 Geo. III, e. 56, authorising the Court to order money, in trust to be laid out in land to be settled, to be paid to the person, who, as tenant in tail of the land, could bar the remainders by a recovery. In Lowton v. Lowton, in Chancery, 22d July, 1800, upon a petition under that Act by the tenant for life and the first of several tenants in tail in remain- t 1799. FLETCHER บ. TOLLET. [ *12 ] 1799. FLETCHER v. TOLLET. According to the old prac tice, at least holds are clear: but that doctrine is quite new, as applied to a freehold estate. It is now settled, that an equitable recovery is just as necessary as a legal one. The demurrer goes too far; for they ought to answer as to the fact, whether there has been a conveyance under the decree. The Plaintiffs only wish to prevent the legal estate from being set up against an ejectment. If the reversioner had been before the Court, and had refused his consent, this conveyance would not have been directed: then surely the Court will not let them take advantage of that done behind his back. Lord CHANCELLOR. According to the old practice of the Court, at least down to the time of Lord Guildford, a recovery of an equitable estate was not necessary: for it was barred by [*13] deed. *It is surprising, how it was ever altered. An unreatime of Lord sonable doubt then struck him, whether a recovery was not necessary (10). down to the Guildford, a recovery of an equitable estate was not necessary: but it was barred by deed. Upon reading this bill I had a little doubt upon the form of the defence, by demurrer: though it struck me, that this decree must, if this Court means to act as a Court of Equity, and does not lend itself to the purposes of injustice, be a complete protection to the parties, who claim under it. I had a little doubt, whether the decree ought not to have been more formally set out, and the effect stated at the bar. However, according to the opinion I have formed upon the whole case, I think, the demurrer meets the case made by the bill in every way, and upon every supposition, upon which that case can be stated; and upon the foundation of the case, supposing the conveyance was executed, the demurrer is an answer to the Equity; and if the conveyance was not executed, the demurrer is equally an answer; for it distinctly states, that as between the parties in this cause there is no case, in which a Court of Equity can interfere. The justice of the case is perfectly evident. The original title gives an estate for life to George Tollet, the son, with remainders to his first and other sons in tail male; remainder to his brother, Cook Tollet, for life, and to his first and other sons in tail male; and, after the determination of these estates in tail male, the reversion in fee was (10) Radford v. Wilson, 3 Atk. 815. to to be conveyed to the heirs of the testator, with a great many charges in favour of daughters. George Tollet, possessing under this title, by a deed, purely private and relating to his own affairs, upon which it is manifest he was under some little difficulty at the time, having borrowed money from Sparrow, and was likely to contract other debts, for the purpose of discharging which he was to reduce his income to fourscore pounds a-year, makes a provision for his debts; and then follows a conveyance of a reversionary interest in the estate: but it is clear and distinct that was not the reversion in fee after the determination of the estates tail: for, whatever motives he might have, purely voluntary, upon no pecuniary consideration, he did not mean to give it to the disappointment of his own issue female or the issue female of his brother. In process of time he is succeeded by his son. All the particular debts of that tenant for life were satisfied. A bill was filed in 1753 by a daughter, entitled to a considerable charge, to have her money raised: the particular trusts had been executed, and lands purchased; and the bill prayed generally, that the trustees may execute the trusts, and, the trusts executed, convey according to the limitations of the will of the first George Tollet. The only persons made parties to that bill were the two grandsons, each entitled by the effect of the will to estates tail, and the trustees, all the parties appearing to be necessary; and it was quite obvious there was no disclosure of this private deed by the tenant for life, and no object in the suit, that could lead to an inquiry into that. I have no doubt, the decree was made upon the supposition, that the reversion had descended to George Tollet. Taking that for granted, the decree very properly takes the consent of Charles Tollet, the next remainder-man in tail. That decree was executed, or it was not. If not, the Plaintiffs have no business here against these Defendants. Being executed, as the bill states it was, by the order of the Court, upon the ignorance, not the mistake, of the Court, (ignorance is not mistake,) but upon the ignorance of all the parties, that there existed any such deed as is now brought forward, the conveyance has been made; and I am desired at this distance of time, forty-six years, by a party stating a title under that voluntary conveyance, to do what? They suppose it mistake. I am to say, |