1840. TURNER v. HILL. Read as assignees of the bankrupts' estates, for the pretended purpose of recovering a debt due to the petitioners for goods sold and delivered for the use of the mines, by the orders of John Gundry, whilst he was purser of the mines, and of Tyacke his successor: but that petition was, in fact, an amicable suit, concerted between the petitioners and the old and new adventurers, in order to obtain a sale of the mines for the purposes before mentioned. On the 9th of May 1820, the petition was heard, and it was then ordered, with the consent of the adventurers, that the mines and the tin, engines and materials belonging thereto, should be sold, by public auction, under the direction of the secretary of the Court, for payment of the debt due to the petitioners. At the time when this decree was made, the engines, materials, tin, &c. belonging to the mines were of the value of 28,0007. and upwards: and the bill alleged that a decree for the sale of an entire mine to liquidate one debt, and that of comparatively small amount, was without precedent in the Vice-Warden's Court, contrary to the law of the Stannaries, and unnecessary, inasmuch as all the then adventurers, with one or two exceptions, were solvent, and the greater part of them would have been able, if called upon individually, to discharge, immediately, the debt due to the petitioners. On the 2d of June 1820, a meeting of the adventurers was held, at which it was resolved that Grylls should attend at the sale, which was advertised to take place, at the Red Lion in Truro, on the 5th of June, and should purchase the mines, materials, &c. for 18,000. But, previously to that meeting, it had been agreed that the shares in the mines should be altered, and that they should be divided into 54 shares only, 30 of which the new adventurers agreed to take. The sale was commenced on the day appointed; but, in consequence of some disagreement or pretended disagreement between Grylls and one of the old adventurers, the Vice-Warden's secretary declined to proceed with the sale; and some of the persons who had attended it, went home. On the evening of the same day, the secretary, Grylls and some of the old adventurers dined together; and it was then arranged that the sale should take place, at the Prince's Court (where the ViceWarden's Court was usually held), and before the sitting of the Court on the following morning. The sale took place accordingly, but without any further notice or advertisement: and Grylls, who was the only bidder, purchased the mines, engines, materials, &c. for 18,000 l. On the same morning an order confirming the sale, was made by the Vice-Warden, with consent. The bill after stating as above, alleged that the shares taken by the new adventurers in the mines, were the shares or part of the shares of the bankrupts so relinquished by Grylls and Read as before mentioned: that the relinquishment, and sale and purchase of the shares of the bankrupts were void in equity; and that the persons who became purchasers of and interested in such shares, were trustees thereof for the creditors of the bankrupts: that, in October 1821, John Rogers, one of the new adventurers who had taken four 54th shares in the mines, relinquished his shares, and, thereby, the shares into which the mines were divided, were increased from 54th to 50th shares; and Tyacke and Jane P. Hill became possessed, jointly, of one 50th share, which was part of the shares and interests of the bankrupts in the mines: that Tyacke and Jane P. IIill afterwards divided their share, and the same was, subsequently, held by them in severance; and one-half 1840. TURNER V. HILL. 1840. TURNER HILL. thereof, being a 100th share, was transferred into Jane P. Hill's name, in the cost-book of the mines, and she, thereby, became the absolute legal owner thereof: that Jane P. Hill died in 1836, having, by her will, bequeathed her share in the mines to two of the Defendants, their executors and administrators, in trust for her daughters, the other Defendants, their executors and administrators; and, shortly after her decease, such share was transferred, into the names of the Defendants, in the cost-book of the mines; and that the Defendants were trustees thereof for the creditors of the bankrupts: that the circumstances under which the shares of the bankrupts had been disposed of, did not come to the knowledge of the creditors until March 1825: that some of the creditors then presented a petition, to the Lord Chancellor, stating several of the facts before mentioned, and praying (amongst other things) that Grylls and Read might be removed from being assignees; that new assignees might be chosen in their place, and that they might be made liable, to the estate of the bankrupts, for the loss occasioned by the relinquishment of the shares: that the petition was heard in July 1829, when it was ordered, amongst other things, that Grylls and Read should be removed and that new assignees should be chosen in their place; and Grylls was declared to be a trustee, of the shares held by him, for the creditors of the bankrupts (a): that, accordingly, the Plaintiff and two other persons, since deceased, were chosen assignees of the bankrupts' estates, and the usual assignment thereof was made to them; and that Grylls had assigned his shares to them, and accounted to them for the profits (a) See Ex parte Badcock, In re Gundry, Mont. & Macarthur's B. C. 231; and Ex parte Grylls, in the same matter, 2 Deac. & Chitty's B. C. 290. thereof. The bill charged that Grylls became the purchaser of the mines under the circumstances, for the purposes, and in the manner aforesaid, at the time he was assignee as aforesaid; and that Jane P. Hill and the several other persons who became interested in the mines as aforesaid, purchased through the means of Grylls, with full knowledge and notice of all the circumstances and purposes before mentioned; and that Grylls purchased the mines as the agent and on the behalf and for the benefit of those persons, he having been authorized so to do as before mentioned: that Jane P. Hill and the Defendants, when they became possessed of the 100th share in the mines, had notice, respectively, that Grylls was assignee of the bankrupts' estates when he purchased the mines, and that such purchase was made in the manner, for the purposes, and under the circumstances before mentioned: and it prayed that the Defendants might be declared trustees for the Plaintiff, of the 100th share, or of such part thereof as the Court should think the plaintiff entitled to, and might be decreed to transfer the same to the Plaintiff, and to account for and pay to him the profits made by them therefrom: and that a receiver might be appointed of the profits arising from the said mines; and that all proper declarations, inquiries and accounts might be made and directed for effectuating the purposes aforesaid. The Defendants demurred for want of equity, and for want of parties. Mr. Knight Bruce and Mr. Sandys, in support of The Messrs. Gundry, whom the Plaintiff represents, were entitled to certain shares in the mines under the old division but he seeks, by his bill, to recover, not one of those specific shares, but one of the new shares : 1840. TURNER v. HILL. 1840. TURNER v. HILL. into which the mines have been since divided. Suppose a tenant in common of land to be disseised of his share, and a new division of the land to be afterwards made by the parties wrongfully in possession, the disseisee could not recover his share, except in an action against all the parties in possession. Here the Plaintiff omits not only all the old shareholders, but also all the new shareholders except the Defendants.* Admitting, however, that a title is so stated, in the Plaintiff, as that he can come, against the Defendants alone, to recover a specific share; still he must confine his prayer to that share: but he prays for a receiver of the profits of the mines. That part of the prayer is, alone, fatal to the bill. Brookes v. Burt (b.) It is difficult to make out what was the nature and extent of the interest which the bankrupts and their coadventurers had in the mines; whether they had the fee or only a term; whether they had the legal as well as the equitable, or only the equitable interest in the mines. If they had only the equitable interest, then the bill would be defective for want of the party having the legal estate : but, if they had the legal title, it could not be affected either by the relinquishment of the shares, the sale in the Vice-Warden's Court, or any of the other transactions stated in the bill. If that be so, whatever may have been the case with respect to Grylls, there is no pretence for coming into equity, as against the demurring parties, before the establishment of the The names both of the old and new shareholders, and the shares held by cach of them, were mentioned in the bill. (b) 1 Beav. 106. |