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have the same effect with respect to lis pendens as 158 16Vict. the filing of a bill or claim (d).
(d) Purchasers are not to be affected by any lis pendens, unless the suit be duly registered according to 2 & 3 Vict. c. 11, s. 7.
person, or in- may obtain
an order for
XLVII. It shall be lawful for any person claim- Creditor, &c. ing to be a creditor of
deceased terested under his will, to apply for and obtain in administraa summary way, in the manner hereinbefore pro- estate. vided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person, where the whole of such real estate is by devise vested in trustees, who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate(e); and all the provisions hereinbefore contained with respect to the application for such order, in relation to the personal estate of a deceased person, and consequent thereon, shall extend and be applicable to an application for such order as last hereinbefore mentioned with respect to real estate.
(e) This is an extension of the 30th Order of 26th Aug. 1841, which did not apply to a case where the trustees had the legal estate in them, unless they had a present power to sell and give discharges. (Lloyd v. Smith, 7 Jur. 460.) The 30th Order of Aug. 1841 did not apply to a case in which the equitable interest only was vested in trustees by devise, although they were empowered to give discharges for the proceeds. (Turner v. Hind, 12 Sim. 414.) The Order applied to those cases in which trustees had an absolute power to sell real estate, and not to cases where they had no power to sell, except with the consent of another person. (Lloyd v. Smith, 13 Sim. 457 ; see Savory v. Barber, 4 Hare, 125.) Where the trust or power of sale was not immediate, as where the devise was to trustees for certain persons for life, and after their decease for sale, the cestuis que trust in remainder were necessary parties to the suit. (Cor v. Barnard, 5 Hare, 253.)
XLVIII. It shall be lawful for the court, in
any Court may suit for the foreclosure of the equity of redemption direct sade of in any mortgaged property, upon the request of property in
stead of a
158 16Vict. the mortgagee, or of any subsequent incumbrancer, C. 86.
or of the mortgagor, or any person claiming under them respectively, to direct a sale of such property,
instead of a foreclosure of such equity of redempas it may
tion, on such terms as the court may think fit to direct, and if the court shall so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem; provided that if such request shall be made by any such subsequent incumbrancer, or by the inortgagor, or by any person claiming under them respectively, the court shall not direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in court a reasonable sum of money, to be fixed by the court, for the purpose of securing the performance of such terms as the court may think fit to impose on the party making such request (f).
(f). With respect to suits by or against mortgagees, or persons in the position of mortgagees, the Chancery Commissioners observed—“If, after a first mortgage, the property have been subject to several successive incumbrances, the first mortgagee, desiring to foreclose the estate, does, in fact, seek relief directly against the subsequent incumbrancers ; they are all interested in contesting or reducing his demand, and are all interested in taking the accounts of his receipts, if he have been in possession. The act 1 & 2 Vict. c. 110, altering the law in respect of judgment debts, has, by the operation of the provision (sect. 13) making all registered judgment debts equivalent to equitable mortgages, increased the difficulties of a foreclosure or redemption suit, and imposed a serious hardship on the other incumbrancers of the judgment debtor. We are of opinion that a plaintiff who has a right against a defendant, in respect of a mortgage incumbrance, ought to be relieved, as much as possible, from all these difficulties, and ought not to be delayed, as he at present is, in many cases, by the necessity of settling rights between other persons interested in the equity of redemption. Any collateral rights to be ascertained, or remedies to be administered, by reason of the payment, should be the subject of distinct collateral proceedings from which the plaintiff in that suit should be wholly relieved.
“Where a mortgagee or other incumbrancer institutes a suit for the purpose of realizing his security, all the subsequent incumbrancers who are all separately interested in contesting or reducing his demand, and in rendering their own
securities available, are neces
cessary parties to the suit. When 158 16Vict. the decree in such a suit is for foreclosure, the decree of fore
c. 86. closure cannot be pronounced until the priorities inter se of all the incumbrancers subsequent to the plaintiff have been ascertained; the effect of which is that the plaintiff's remedy is delayed by the necessity of settling rights between the defendants. This inconvenience does not exist where the plaintiff is entitled to a decree for sale; in such a case the estate may be sold at once, and the plaintiff's demand satisfied: the surplus remaining in court as a fund to be applied in or towards satisfaction of the claims of the defendant, when ascertained. We are of opinion, that in foreclosure suits the court should possess the power of directing a sale instead of a foreclosure at the request of the mortgagee, on such terms as the court may think fit to direct; and also at the request of any subsequent incumbrancer, or of the mortgagor on his making such deposit, and on such other terms as the court may think fit to direct.” (Rep. Ch. Comm. 1852, p. 19. Of the parties to bills for redemption or foreclosure, see 2 Spence, Juris. Ch. 694–708.)
XLIX. No suit in the said court shall be dis- Suit not to be
dismissed missed by reason only of the misjoinder of for misjoinas plaintiffs therein (9); but wherever it shall ap- der of plainpear to the court that, notwithstanding the conflict of interest in the co-plaintiffs, or the want of inte- modify its rest in some of the plaintiffs, or the existence of cording to some ground of defence affecting some or one of special cir. the plaintiffs, the plaintiffs, or some or one of them, are or is entitled to relief, the court shall have power to grant such relief, and to modify its decree, according to the special circumstances of the case, and for that purpose to direct such amendments, if any, as may be necessary, and at the hearing, before such amendments are made, to treat any one or more of the plaintiffs as if he or they was or were a defendant or defendants in the suit, and the remaining or other plaintiff or plaintiffs was or were the only plaintiff or plaintiffs on the record; and where there is a misjoinder of plaintiffs, and the plaintiff having an interest shall have died, leaving a plaintiff on the record without an interest, the court may, at the hearing of the cause, order the cause to stand revived as may appear just, and proceed to a decision of the cause, if it
158 16Vict. shall see fit, and to give such directions as to costs c. 86.
or otherwise as may appear just and expedient.
(g) If a party having an interest joined with him as a coplaintiff a party having no interest, the bill was demurrable (Cuff v. Platell, 4 Russ., 242), if that fact appeared on the bill; if the fact did not appear on the bill, but was brought forward by plea, such a plea was a good defence to the suit. (Makepeace v. Haythorne, 4 Russ. 244 ; King of Spain v. Machaolo, Ib. 225, see p. 240, 241 ; see Cowley v. Cowley, 9 Sim. 299; Page v. Townsend, 5 Sim. 395.) Where several plaintiffs beneficially interested in a trust fund, sued the trustees in respect of a breach of trust, and one of such plaintiffs had, in addition to his character as a cestui que irust, become the personal representative of a deceased trustee, who was primarily or with the other trustees jointly liable, the suit was held to be imperfectly framed, and could not be sustained, notwithstanding it was averred by the bill that the plaintiff had received no assets of the estate of the deceased trustee, and that the trustee died insolvent. (Griffith v. Vanheythuysen, 9 Hare, 85; Jacob v. Lucus, 1 Beav. 436; Salmon v. Green, 11 Beav. 456 ; Padwick v. Plutt, 11 Beav. 503; see note on misjoinder of parties as co-plaintiffs, Mitf. Pl. 399— 401, 5th ed.)
No suit to be
Court may decide between some
L. No suit in the said court shall be open to obobjected to jection, on the ground that a merely declaratory declaratory decree or order is sought thereby, and it shall be order sought. lawful for the court to inake binding declarations
of right, without granting consequential relief.
LI. Ít shall be lawful for the court to adjudicate
on questions arising between parties, notwithstandof the parties ing that they may be some only of the parties without mak- interested in the property respecting which the
question may have arisen, or that the property parties to the in question is comprised with other property in
the same settlement, will, or other instrument, without making the other parties interested in the property respecting which the question may have arisen, or interested under the same settlement, will, or other instrument, parties to the suit, and without requiring the whole trusts and purposes of the settlement, will, or other instrument to be executed under the direction of the court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of
the property touching which the question or ques- 158 16Vict. tions may have arisen: provided always, that if the court shall be of opinion that the application is fraudulent or collusive, or for some other reason ought not to be entertained, it shall have power to refuse to make the order prayed (h).
(h) It is a rule of courts of equity, not to execute trusts partially, and not to maķe decrees merely declaratory. If, therefore, there are any questions of construction on a testator's will, the court will not entertain such questions except in a suit for administering the estate, and after taking the accounts, and ascertaining the property; and where an estate is incumbered, and there is a question of priority between two incumbrancers in which no other party is concerned, such question cannot be determined, except in a suit of the most comprehensive kind, to which every incumbrancer, and the owners subject to the incumbrances, must be parties. There seems no substantial reason for this. If, for instance, on the construction of a will there be a question who are the parties entitled to the residue, it would be generally convenient and economical to determine that before the accounts are taken ; and so with regard to other questions affecting specific portions of, or interests in, the trust or testamentary estate. So it might be convenient to enable one incumbrancer to institute a suit against another for the purpose of ascertaining their respective priorities by a declaratory decree. The rule of the court making it impossible in such cases to obtain a decision on the question really in dispute, except in a suit embracing matters as to which no one desires the intervention of the court, has an obvious tendency to load the record with unnecessary parties, and is a fruitful source of expense. This evil is in some degree remedied by the recent law, enabling the parties, by agreement, to take the opinion of the court on a special case. (See stat. 13 & 14 Vict. c. 35, post.) We are of opinion that this should not be confined to the case in which the parties can so agree; and we recommend that it should be competent to the court in every case to adjudicate by binding declarations on questions arising between the plaintiffs and defendants where they alone are interested in such questions, and that it shall no longer be an objection to a suit that it seeks a decree merely declaratory. (Rep. Ch. Comm. 1852, p. 19, 20.)
LII. Upon any suit in the said court becoming In case of abated by death, marriage, or otherwise, or defec- &c of suit an
, tive by reason of some change or transmission of order may be interest or liability, it shall not be necessary to ex- shall have hibit any bill of revivor or supplemental bill, in same effect as order to obtain the usual order to revive such suit, vivor.