Hunter v Macklew

[238] hunter v. macklew. Nov. 5, 1846. . A., having a life-estate, with remainder over in strict settlement,: subject to a mortgage of the settled property for a term of 1000 years, demised the property for a term of 200 years if he should so long live. A purchaser of the term of 200 years filed his bill to redeem the termor for 1000 years, who was the first mortgagee of the estate. Held that A., the owner of the life-estate, subject to the term of 200 years, was a necessary party. By indentures of lease and release, dated the 14th and 15th of May 1824, being a settlement made upon the marriage of Sir Francis Vincent with Augusta Elizabeth, his wife, certain real estates were conveyed to the Earl of Carnarvon and the Earl of Roslyn, their heirs and assigns, to certain uses therein mentioned, with a proviso that, notwithstanding any of the said limitations or trusts, it should be lawful for Sir Francis Vincent, from and after the decease of Dame Mary Vincent (subject to a certain rent charge), by any deed to be executed as therein mentioned, to charge a competent part of the said settled estates, or the estates thereinafter covenanted to be settled, with any sum not exceeding 3000, for furnishing the mansion-house of Debden Hall, and to raise the same monies by appointing the said hereditaments for any term of years in possession, unto any person or persons willing to make the advance thereof by way of mortgage, subject to redemption upon repayment of the monies to be charged, and interest at 5 per cent, per annum. Dame Mary Vincent died in January 1826. By indenture, dated the 30th of August 1826, Sir Francis Vincent, in consideration of '3000 lent to him by H. H. Frazer, demised the settled estates, under the power in the settlement, to H. H. Frazer, his executors, administrators and assigns, for the term of 1000 years, with a proviso for redemption on repayment by Sir Francis Vincent, his heirs, executors and administrators, or other the person or persons who might be interested in or entitled to the said hereditaments, of the said 3000 and interest. The mortgage debt to Frazer and the securities for the same were, in [239] August 1830, transferred to the trustees of the Provident Institution. By an indenture, dated the 23d of March 1837, Sir Francis Vincent granted and demised the same estates .to John Lyle, his executors, &c., for the term of 200 years, if the said Sir Francis Vincent should so long live, subject to the several charges and incumbrances on the life-estate of the said Sir Francis Vincent, and subject to the said mortgage for 3000, with a proviso for redemption on payment to Lyde of 1987 and interest on the 23d of March 1838, and a power of sale on default of such payment. Default was made; and in 1843 the power of sale was exercised, and the Plaintiff became the purchaser of the premises for the residue of the said term of 200 years. The bill stating the foregoing case was filed in December 1845 against the Defendants, the trustees of the Provident Institution, in whom the mortgage of 3000 was vested, under the indenture of 30th August 1836 ; and it prayed an account of what was due on that mortgage; and that, upon payment by the Plaintiff to the Defendants of what should be so found due, the Defendants might be decreed to assign or convey the mortgaged premises to the Plaintiff, or as he should direct, and to deliver to the Plaintiff the title-deeds and evidences relating thereto. The Defendant, A. Henderson, one of the trustees of the Provident Institution, by his answer, said he was advised that Sir Francis Vincent ought to be a party to the suit, and that he had been informed there were several other incumbrances on the said mortgaged premises subsequent to the said mortgage of 3000. [240] The cause was set down by the Plaintiff under Order XXXIX. of August 1841 on the objection for want of parties. Mr. Follett, for the Defendant, in support of the objection. The Defendants 5 HARE, 241; CURLING V. FLIGHT 903 represent the first" mortgagees. Since their mortgage a term of 200 years has been carved out of the equity of redemption, or out of the life-estate of Sir Francis Vincent, which is a part of the equity of redemption; and upon this derivative interest the bill is founded. The Plaintiff, therefore, cannot have a more extensive right than his mortgagor. Now, what are the rights of the mortgagees upon a bill for redemption filed by the mortgagor? Their rights are to compel the mortgagor to work out the remedy which he has resorted to and pay off the mortgagees : or, on default, that the bill for redemption shall operate in favour of the mortgagees, and result in a foreclosure. The mortgagees may require that the suit shall be framed so as to have this effect, whether it be filed by the mortgagor himself, or persons...