1856. WILKS v. GROOM. cannot be found, it shall be lawful for the said Court to make an order vesting such lands in such person or persons in such manner and for such estate as the said Court shall direct; and the order shall have the same effect as if the trustee had duly executed a conveyance or assignment of the lands in the same manner and for the same estate." "XX. And be it enacted, that in every case where the Lord Chancellor entrusted as aforesaid, or the Court of Chancery, shall, under the provisions of this Act, be enabled to make an order having the effect of a conveyance or assignment of any lands, or having the effect of a release or disposition of the contingent right of any person or persons born or unborn, it shall also be lawful for the Lord Chancellor entrusted as aforesaid, or the Court of Chancery (as the case may be), should it be deemed more convenient, to make an order appointing a person to convey or assign such lands, or release or dispose of such contingent right; and the conveyance or assignment, or release or disposition of the person so appointed shall, when in conformity with the terms of the order by which he is appointed, have the same effect in conveying or assigning the lands, or releasing or disposing of the contingent right, as an order of the Lord Chancellor entrusted as aforesaid, or the Court of Chancery, would in the particular case have had under the provisions of this Act. Mr. Wickens, for Mr. Joad, and in support of the objection to the proposed form of conveyance. He stated that the doubt as to the sufficiency of the proposed conveyance by W. W. Gabriel had been raised by very competent persons by whom the purchaser had been advised that the case of an unknown heir of a person seised of lands, not as trustee but beneficially in his own right, although those lands might have been sold for the payment of debts under the Decree of the Court, was not provided for by the Trustee Acts, that the Order of the 2nd August 1854 could not be supported, and that the proper course for obviating the difficulty was to obtain the appointment of new trustees as prayed by the present Petition, to have the legal estate vested in them, and afterwards to cause them to convey to the purchaser. (He referred to the ninth and twentieth sections of the Trustee Act 1850.) Mr. Baily and Mr. G. W. Collins, for the Plaintiff. They submitted that the Order of the 2nd August 1854 was correct, and that the present case fell within the terms of the sections of the Act to which reference had been made. The LORD CHANCELLOR said, That he did not see the difficulty suggested on behalf of the purchaser. It was hardly possible to make the matter clearer than it was made by the language of the Act itself. Applying the terms of the ninth section to the case, there was here a person solely seised, the heirat-law of the testator, (the trustees appointed by the will having disclaimed,) and there had been a Decree made in the suit in his absence. The heir was thus in fact a trustee who could not be found; and under these circumstances the Court had power to make an order vesting the property in such person or persons in such manner and for such estate as the Court might direct. Then under the terms of the twentieth section, wherever the Court might have made a vesting order it might make instead an order appointing a person to convey. There did not seem to be any difficulty; and his Lordship thought that the Act applied to the present case, and that the Order of the 2nd August 1854 was right. Vol. VI. P D. M. G. 1856. WILKS บ. GROOM. 1855. November 10. cellor LORD THIS WICKENDEN v. RAYSON. HIS was an appeal by the Defendant G. B. Acworth from an order, made on further directions by ViceCRANWORTH. Chancellor Stuart, so far as it directed him to concur in a sale of the property ordered to be sold in the cause, ministration of and made him in a certain event specified liable to pay the costs of the suit. In a creditors' suit for the ad real estate subject to a mortgage having priority to the claims of creditors, a sale of the estate free from the mortgage cannot be di rected without the consent of the mortgagee, The suit was instituted by creditors for the administration of the real and personal estate of Henry James Rayson, who died on the 8th December 1851, leaving a will by which he gave his property to his wife Mary Rayson for life, and after her death to his two daughters Ann the wife of Thomas Henley, and Mary Rayson : whether he is the widow was appointed executrix. a party to the suit or not. If, however, the mortgagee is a party to the suit, the direction will not be made in the common alternative form, namely, that the property shall be sold free from his security if he concurs in the sale and subject to it if he does not concur; but the Court will require the mortgagee to elect at once whether he will concur or not. On the 10th June 1852, the widow and two daughters and the husband of the married daughter mortgaged the property to the Defendant G. B. Acworth to secure 4007. and further advances, which advances were subsequently made to the amount of 7007. in all. On the 19th June 1852, the same parties transferred the equity of redemption to trustees in trust to sell, to invest the proceeds and hold them in trust for the widow for life, and after her death for her sons J. H. Rayson and Edward Rayson, her son in law the said Thomas Henley, and her said daughter Mary Rayson in equal shares. On the 24th July 1852, the widow and T. Henley mortgaged their interests under this settlement to the Defendant G. B. Acworth to secure 150l. advanced by him to T. Henley; and on the 20th August 1852, the widow and and J. H. Rayson made a similar mortgage to the Defendant G. B. Acworth to secure 150l. advanced by him to J. H. Rayson. Shortly after the execution of the lastly mentioned mortgages the present suit was instituted: G. B. Acworth was not made a party to it, as the bill did not seek to impeach his mortgage for 7007., but asked that directions might be given for redeeming it, the Plaintiffs in fact having no knowledge of the other mortgages. After the answers had been put in which disclosed the existence of the two mortgages for 150l., G. B. Acworth was made a party by amendment, and the bill as amended prayed that the settlement of the 24th July 1852 and the mortgages made under it might be declared fraudulent and void as against the creditors, but it did not impeach the mortgage for 7001. The grounds on which the mortgages for 150l. were impeached need not be stated for the purpose of the present report. After various proceedings, the cause came on before Vice-Chancellor Stuart on further directions, when his Honor decided that the settlement and the mortgages made under it were void as against the creditors, and ordered a sale of the devised estates, directing that the 7001. and interest should in the first place be paid out of the proceeds of the sale, and then the Plaintiffs' debt and costs, and that if the proceeds of the sale were insufficient for that purpose the Defendants, including the Defendant G. B. Acworth, should pay the Plaintiffs' costs. The question as to costs was argued, but the point as to whether the property should be sold free from the 7001. mortgage was not discussed. Before the decree had been passed and entered, the Defendant G. B. Acworth applied on motion before 1855. WICKENDEN v. RAYSON. 1855. WICKENDEN v. RAYSON. the Vice-Chancellor to vary the minutes as to the sale, by substituting the usual direction that the property should be sold subject to his mortgage of 7001. if he should not concur in the sale, and free from it if he should concur. His Honor, however, refused the application, holding that as G. B. Acworth was a party to the suit, the Court had jurisdiction to compel him to concur in the sale. The decree was therefore drawn up in the form originally directed, and the present appeal was brought by the Defendant G. B. Acworth. Mr. Craig and Mr. Bevir, for the Defendant G. B. Acworth, supported the appeal. They contended that, according to the long settled practice of the Court, no sale could as against a mortgagee claiming by a title paramount whether a party to the suit or not be ordered without his consent except subject to his mortgage, Langton v. Langton (a); and here the mortgagee did not consent. The Vice-Chancellor seemed to have thought that the forty-eighth section of the Act 15 & 16 Vict. c. 86 applied, but that section was in express terms confined to suits for foreclosure. They also submitted that the direction as to costs was wrong. They cited Tipping v. Power (b), Hepworth v. Heslop (c); and referred to Harvey v. Tebbutt (d). Mr. W. D. Lewis, who was with Mr. Malins, for the Plaintiffs, submitted that the decree was right. He contended that the case of Langton v. Langton (a) was distinguishable from the present, for there the mortgagee had been improperly made a party, the attempt to impeach his security having failed, so that he might fairly (a) 3 Equity Reports, 394. (c) 3 Hare, 485. |