1800. SPRAGG v. BINKES. 1799. July 11th. [ *587 ] are paid, he cannot have a redemption. Holder has nothing to do with it. He has released; and put all equity of redemption out of him. All the other parties remain exactly, where they were. Nothing could be done as to them. The parties standing 2d and 3d do not desire any thing, but that it shall remain, as it is; thinking, the mortgagee is doing best for all by paying himself. The Defendant Troughton, a creditor by assignment of a debt prior to the trust deed of 1794, and also by assignment of a mortgage subsequent to that date, filed a bill to compel a sale by Binkės, the trustee; and that suit stands still, in order to prevent expence. MASTER of the ROLLS. This is a question of very great importance: how far the Court has gone in permitting bills of this nature. A learned Judge, Lord Chief Justice Eyre, whose loss the country has great reason to lament, sitting with me at the Cockpit a few days ago, went very much into the question of the propriety of entertaining bills of this sort; and was of opinion, that Courts of Equity had gone too far in supporting them. We cannot be so rigid as Courts of Law; where but one person having the legal interest can bring the suit: in equity it is permitted by an assignee, and, Í am afraid, in some instances, of a partial interest. The consequence is, there may be a great number of Plaintiffs. I must see, whether it is absolutely necessary, that these other parties must join with the Plaintiff; that the mortgagees after contending with this Plaintiff, may not be harassed by the trustee; and find, they have gained no ground. Therefore the trustee must be bound. A bankrupt cannot bring a bill certainly (83). He does not want a bill against his assignees: but, where he has a clear interest, and the assignees refuse, the Lord Chancellor upon petition would compel them upon an offer of indemnity to let him use their names. My doubt is, whether these other parties ought not to be Co-plaintiffs; whether the Court, though they do permit equitable interests to be assigned, will not require, that they shall come together: otherwise a man may make twenty assignments, Hammond v. Attwood, 3 Madd. Lloyd v. Lander, 5 Madd. (83) Post, Benfield v. Solo- ments, and each assignee may file a bill. I am very much inclined to check the practice of buying titles in this Court; which has of late increased in an alarming degree; and I do not know, where it will end. If every man claiming to be assignee of a mortgage may bring a bill without the mortgagor, how will any one take a mortgage? Mr. Richards, in Reply. The case of Detillin v. Gale, now depending in this Court, is exactly upon this principle. The Plaintiff, who was completely insolvent, filed the bill against incumbrancers and against a trustee for general creditors; and an account was directed against the Defendants; one of whom has been in prison above a year for a contempt. The only distinction between that case and this is, that bill was filed by the insolvent debtor himself; and this is by the assignee. That makes no difference. If he had died the interest would have gone to his representatives. A bankrupt has an interest to release; and without releasing he cannot be a witness: if so, he has an interest to convey or assign. Non constat in any case, that there will be a redemption. If the mortgagor is a pauper, he has a right to a decree for redemption, if he offers to redeem; though the property may not be worth it. What hardship can there be upon the mortgagees, possessing a very ample security. If costs are incurred, the costs are added to the principal and interest; and are a charge upon the property. The circumstance, that Troughton, another mortgagee, has also filed a bill, is no answer. The same objection might be made in every case, where there are several mortgages. It must come to the question, whether Holder had any interest, or not, in the property. *The Plaintiff has the same right, that he had, as Cestui que trust to redeem the mortgagees, and to call upon the trustee Binkes to execute the trust and deliver up the surplus. He must have an interest in it, either as real or personal estate. The doubt, whether possibilities could be assigned, is now at rest even at law. They were always assignable in Equity (84). A vendee cannot compel the vendor to be Plaintiff. This objection, if it prevails, will make it 1800. SPRAGG v. BINKES. [ * 588 ] (84) A possibility coupled with an interest is also devisable. Perry v. Phelips, ante, Vol. I, 251; see 254. 1800. SPRAGG V. BINKES. it impossible to sell an estate, subject to a mortgage, without an express stipulation, that the mortgagor shall suffer his name to be used. Having given up all his interest he will not consent to be Plaintiff. Upon the records of the Court there must be many instances of bills by purchasers of equities of redemption; and there is no instance of the mortgagor being a Coplaintiff. It will disturb many titles to alter this. Many titles have been taken without any stipulation by the mortgagee, and without any stipulation by the mortgagor that he shall suffer his name to be used; and then it is impossible to compel him. The danger apprehended by the Court does not arise in this cause; for every person, who can by possibility have an interest in this equity of redemption, is before the Court. It cannot be doubted, that a person who has taken the benefit of an insolvent debtor's act, may file a bill against his trustee, for an account of his conduct; and calling upon him to execute the trust, to sell the estate; and calling upon the mortgagees for an account and a redemption. The assignment under the act is no more than any other assignment equally extensive, The circumstance, that there were two conveyances in trust to sell, can make no difference; nor, that the second is by Act of Parliament. In every conveyance for payment of debts all right, title and interest, is conveyed. Without doubt each mortgagee or creditor by judgment may file a bill for redemp tion. Any person having an interest in the equity of redemption has a right to clear the incumbrances, and get the estate; and the first mortgagee has no right to refuse to be redeemed by any person having an interest in the equity of redemption. If they all should file their bills at the same time, the Court would direct a reference to inquire, who was entitled to redeem. The subject of inquiry upon a conveyance for payment of debts is, whether the estate will pay the whole. It is admitted, Holder is to be considered the Plaintiff; and then he has a [*589] right to call for an execution of the trust; and he cannot * obtain it in any way but by a bill in a Court of Equity; for there is no short remedy under the act. The persons making this objection are mortgagees; who of course are desirous of keeping the estate. The utmost length the Court would go in their favor would be, to prevent them from being unnecessarily harassed, by imposing a condition, that, if the money shall not not be paid at the time limited, the equity of redemption shall be foreclosed. The MASTER of the ROLLS. 1800. SPRAGG v. BINKES. Aug. 13th. too far in permitting assignments of rights This is one of the most extraordinary cases ever brought before the Court. I am under great difficulty; as I cannot find any precise ground, upon which the Court proceeds as to entertaining bills filed by purchasers of what are called equities. The Court has gone a great way, perhaps too far, in permitting The Court has persons to assign over for what is called valuable consideration, perhaps gone (I can hardly think it so in this case), rights in accounts to be taken; and it appears to me, that a notion has gone abroad, that a man may parcel out such a right to different persons, in accounts to and every one of those persons may file a bill pro interesse suo, be taken. That would be one of the most oppressive rules, that can be Such a right imagined. Though I have made decrees in favor of assignees cannot be parof equities in something like such a situation, I am by no means celled out; so persuaded, that it is competent to a man to do so. On the contrary I think, this Court ought to interpose. Consider, son may file a how far this Plaintiff is in such a situation. The bill states this curious case. Holder, seised of this estate, subject to mortgages, and being otherwise much indebted, in 1794 conveyed, subject to an annuity of 400l. a year for himself for life, to a trustee for the payment of his creditors. In October 1795 this unfortunate man was so much distressed as to be actually under the necessity of taking the benefit of an Insolvent Act; by which his annuity of 4001. a year was given up to his creditors; and he was entitled to nothing more than what should remain after paying his creditors. He was exactly in the situation of a bankrupt. The conveyance under the Insolvent Act was made in October 1795; and in December the first transaction, upon which this bill is founded, took place; and this is the statement of the Plaintiff's own bill; that Holder being previously indebted to the Plaintiff to the amount of 750l. offered to secure the same upon the said plantation and his annuity of 4001. a year; and conveyed accordingly. He had no such annuity. The bill then states a subsequent advance by the Plaintiff to the amount of 17667. 19s. 3d.; upon which Holder released and assigned all his remaining interest to the Plaintiff upon his securing an annuity of 4007. a year for the life of Holder; that bill. every per 1800. SPRAGG v. Holder; and the Plaintiff executed a bond in the penalty of 50001. for securing that annuity. This was an absolute conveyance, subject to the trusts of the said deed and the prior charges. This is not all: but upon the 21st of May 1798 Holder proposed to give up the annuity; and in consequence of 8001. actually paid to him, for so it is charged, and promisory notes for 2100l. that proposal was carried into execution; and the Plaintiff being so entitled modestly comes into this Court; calling for a redemption and an account from the trustees. The worst part of the story is the answer put in by Holder; admitting all these facts to be true; that he received all this money, and joined in these deeds; and he is at this time receiving an allowance of three guineas a week from the mortgagees. I cannot permit the Plaintiff to state this story. As to the mortgagees I never had any doubt, that he could not redeem. In the case of bankruptcy only the assignees could file the bill. The bankrupt might apply to the Lord Chancellor in a short way; but could not redeem. What made me take so much time upon this was, that I thought, the insolvent bill of redemp- debtor might file a bill in this Court, if the assignees did not tion in respect in a certain time. The act of 21 Geo. III (85), requires the of his right to the surplus: assignees to do what can hardly be done, to sell in three but where he months. They could hardly do that; and in this instance it has a clear in- was an equity of redemption; and an account was to be taken. terest, and the It is said, and I rather think so, that it is illegal to purassignees re- chase from a person in this situation. I am under vast diffifuse, the Lord culties as to these assignments of equities. It is very difficult Chancellor will to draw the line. To say, there can be no assignment of such a subject, would be against all practice: but then it must be a fair case. A bankrupt cannot file a upon petition and an offer of indemnity compel them to let him use their names. The Court proposed that the bill should be dismissed against the mortgagees; and that the account against the trustee should be taken under this bill: but upon a statement, that Holder was in a deranged state of mind, that his answer was put in by Spragg, and the transaction passed, when both of them were in prison, the bill was dismissed with costs. (85) c. 63. THE END OF SITTINGS AFTER TRINITY TERM. |