Adair v The New River Company

[429] adaie v. The new eiver company. July 24 /t, 2f i/i, 26th, Aug. 1st, 1805. [Distinguished, Newton v. Earl of Egmont, 1832, 5 Sim. 137.] Whether an annuity or rent-charge out of the profits of the New Rivr.r Company is to bear the full assessment to the land-tax, or is to have the benefit, according to the proportion, of a reduction, in consequence of an assessment upon the profits of the Company at an undervalue, quaere. The Bill by the annuitant was dismissed : the Court refusing to raise an equity as to the profit, arising from disobedience to the Act. The general rule, requiring all persons interested to be parties, dispensed with, where it is impracticable, or, extremely difficult. In such a case, to obtain a decree, to establish the right of suit to a mill, for instance, the Court only requires parties sufficient to secure a fair contest ; and, the right being established in that way, consequential relief may be had against the rest in another suit. The Bill stated the incorporation of the New River Company by King James I., reserving to the Crown one moiety of the profit to arise ; and accordingly the Company granted at the nomination of the King, and for the use and benefit of him, his heirs and successors, to the use of trustees, one moiety of all such fines, sums of money, benefits, and profits, whatsoever, above the expences ; upon trust for the King, his heirs and successors. By indentures, executed in the 17th year of King Charles I., to which the Company were parties, his Majesty granted to Sir Hugh Middleton, his heirs and assigns, all the trust, use, and benefit, of the moiety of the Crown ; provided, and Sir Hugh Middleton covenanted, that he, his heirs or assigns, would pay for the use of the King, his heirs and successors, the yearly rent of £500. By several grants of the Crown and mesne assignments that rent became vested in William Adair ; who died in 1783 ; having devised the rent to trustees and their heirs, to the use of the Plaintiff for life, with remainders over. The Bill farther stated, that by various assignments the moiety of the Crown became vested in the Company, or in the Company and the other Defendants (eight in number) and other persons, amounting to 100, or a much greater number ; that the profits amounted to [430] £50,000 a-year ; and were assessed to the land-tax in the yearly sum of £3600, being 4s. in the pound upon the yearly sum of £18,000, the nominal amount of the profits, but not more than Is. Gd. or at most 2s. upon the real profits. The Bill stated applications by the Plaintiff to the Defendants for a discovery of the real amount of the profits, and payment of the £500 per annum from April 1798; deducting the land-tax in proportion to what was actually paid by the proprietors, and to be repaid what was over-paid by him ; which they refused, claiming to deduct £100 per annum for the land tax ; and that they have paid only £400 ; and charged, that there was not any tangible or corporeal property, upon which the Plaintiff can distrain, and the parties are so numerous, and the shares liable to so many complicated trusts, and so fluctuating, that it is impossible, if the Plaintiff could discover them, to bring them all before the Court; and these impediments were produced, not by the Plaintiff, and those, under whom he claims, but by the Defendants ; and prayed an inquiry, what sum of money ought to be C. xii.-37 1154 ADAIR V. THE NEW RIVER COMPANY 11VES. JUN. 431. deducted on account of the land-tax ; that the Defendants may be decreed to pay the difference between that and what was actually charged; and that the right of the Plaintiff may be declared to receive the rent without any greater deduction than after the rate actually paid. The New River Company by their answer admitted, that their profits were more than £18,000 j;er annum, but did not state the amount. They submitted, whether all parties interested are not necessary parties ; notwithstanding the moiety was granted to a single person. An objection was taken for want of parties; all the persons interested not leing brought before the Court. [431] Mr. Richards, Mr. Alexander, Mr. Bell, and Mr. Neave, for the Plaintiff. The necessity of bringing all persons before the Court, to whom interests in the property belong, though true in theory, does not prevail in practice. Where it is impossible, a case of exception arises. In a late case, Harding v Pratt, upon that ground the Court gave liberty to apply for an Act of Parliament. The same principle appears in The City of London v. Richmond (2 Vern. 420 ; Pre. Ch. 15G ; 1 Era. P. C. 30[2nded. 51G]), Quintine v. Yard (1 Eq. Can. Abr. 74), and Lloyd v. Loaring(K Ves. 773. See the note, 4 Ves. f)28). This Plaintiff has before the Court some of theiparties interested, and the legal holders of the property. Some of the persons interested, being before the Court, are sufficient to maintain the question. In the instance of a Bill by simple-contract creditors against trustees, insisting, that an estate is charged with debts, it may be impracticable to bring before the Court all the bond creditors. They may be very numerous, and not known. The habit is to bring some of the specialty creditors, to discuss the question with the Plaintiffs ; which is then decided with reference to the trustees ; and the estate declared well charged ; though only a few specialty creditors are parties. It is not even necessary to make any of them parties ; and decrees have been often made upon Bills by simple-contract creditors, in the absence of all the specialty creditors ; though generally for convenience some of them are made parties, as being interested to discuss the question. As to the remedy of the Plaintiff, there is great difficulty in distraining. The Crown made the Corporation the legal tenants of the estate. The only title in the Crown was to an account : therefore no more could be granted to Sir Hugh Middleton. The subsequent grants of the £500 a-year, partaking of the nature of a rent-charge, could give only a right to an account. The Court will assimilate it, as much as [432] possible, to an equitable distress ; fixing it upon those persons, whom it may be possible to make parties. The rule of Equity, to bring before the Court all persons interested, as in the case of a joint and several bond, is a rule of convenience, for the sake of the Defendants ; but it cannot be used to disappoint entirely the justice of the Court; as the Defendants are entitled to contribution ; which would be an abuse of the rule, contrary to its principle and object; and would make the forms of justice subversive of its end. That rule is therefore in many cases dispensed with upon the principle of convenience, as legatees, general and residuary, are represented by the executor. In the case of scheduled creditors, very numerous, the objection, that they must be before the Court, for the purpose of having a decree for payment of debts out of real estate, has been made ; but has not prevailed ; and there are many other instances, in which for convenience, or rather necessity, the rule has been dispensed with. Independent of the Land-Tax Acts the Plaintiff is entitled upon equitable principles : Brockman v. Honeywood (1 P. Will. 328). Upon the...