CHAP. XXXV. Vote for Parliament. Holding courts. Nomination to benefice. Director's qualification not lost by mortgage of shares. Poor law settlement. gagor is, until foreclosure, the real owner of the property, and possessed of it in right of his ancient and original estate (e). ii.-Personal Rights and Privileges of Mortgagor.—With whatever strictness the common law may have originally regarded the breach of the condition by the mortgagor, yet, in modern times, the doctrine of the courts of equity, recognizing the mortgagor (until foreclosure) to be the actual owner of the land, has to a certain extent, with reference to the possession by the mortgagor, been acted upon as well by the courts of common law as by the legislature. The statute law (f) has provided that the mortgagor in possession shall have the privilege of voting for the return of members of Parliament notwithstanding the mortgage. If, however, the interest on the mortgage reduces the annual value below 40s., the mortgagor has no vote (g); but nothing but interest can be deducted (h). The monthly payments, however, secured by mortgage to trustees of a benefit building society under 6 & 7 Will. IV. c. 32, are a charge on the estate which will destroy the owner's right to vote if they do not leave him the requisite quantity of interest prescribed by statute (i). He has the right of holding courts where lord of a manor (k). A further privilege annexed to the estate of the mortgagor is the right, where an advowson is the subject of the mortgage, of nominating to the church on an avoidance of the living (1). Though by the articles a director of a company must be a registered member in his own right (m), he does not lose his qualification by a mortgage of his shares (n). At common law the title of ownership of a mortgagor while in possession is so far recognized as to gain him a settlement under the poor laws (0), but for this purpose he must reside within ten miles of the property (p), and be in possession in his capacity (e) See per Lord Selborne in Heath v. Pugh, 6 Q. B. D. 345, at p. 360, and per Kekewich, J., in Tarn v. Turner, 39 Ch. D. 456, at p. 460. (f) 8 Hen. VI. c. 7; 2 & 3 Will. IV. c. 45, s. 23; and 6 & 7 Vict. c. 18, 8. 74. (g) Bedfordshire, 2 Lud. 469; Middlesex, 2 Peckw. 103; Lee v. Hutchinson, 8 C. B. 18; 2 Lutw. Reg. Ca. 159. (h) Rolleston v. Cope, L. R. 6 C. P. 292. (i) Copland, app., Bartlett, resp., 6 C. B. 18. (k) Ante, p. 168. (1) Jory v. Cox, Prec. Ch. 71; Amhurst v. Dawling, 2 Vern. 401; Gally v. Selby, Stra. 403; Mackenzie v. Robinson, 3 Atk. 559, which overruled Gardiner v. Griffith, 2 P. Wms. 403. And see ante, p. 169. (m) Exp. Littledale, 6 De G. M. & G. 714. (n) Pulbrook v. Richmond, &c. Co., 9 Ch. D. 610; Cumming v. Prescott, 2 Y. & C. Ex. 488. (0) Rex v. Inh. of Catherington, 3 T. R. 771. (p) 4 & 5 Will. IV. c. 76, s. 68, a. as mortgagor, and not by fraud or wrong; and in a case (q) in which a mortgagee of several messuages having recovered in ejectment, afterwards permitted the mortgagor to inhabit one of the houses for a particular purpose, i.e., the overlooking of some repairs, the Court of King's Bench held that no settlement was gained by such latter residence, for he was not in possession as mortgagor. And in another case (), in which an estate had been conveyed to trustees, upon trust to sell for payment of debts and to pay the residue to the grantor, the grantor before sale got fraudulently into possession, and it was held that he did not, by such residence, gain a settlement. CHAP. XXXV. iii.-Right of Mortgagor to bring or defend Actions with regard Right to bring and to the Mortgaged Property.-By the Judicature Act, 1873 (s), defend s. 25, it is enacted as follows: actions. gagors. "(5.) A mortgagor entitled for the time being to the possession Suits for posor receipt of the rents and profits of any land as to which no notice session of land of his intention to take possession or to enter into the receipt of the by mortrents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." The mortgagor may defend actions relating to the land or other property subject to the mortgage as against persons other than the mortgagee (†). must be party respecting As a general rule, where an action is brought by or against When the a person having only an equitable interest in property which mortgagee is the subject-matter of the action, the person in whom the to actions legal estate is vested must be made a party thereto, so as to equity of bind the legal estate, and to prevent the owner of it from redemption molesting the party against whom relief is sought by further proceedings (u). So, the mortgagee must be made a party if his interests are in any way likely to be prejudiced by the result of an action brought by or against the mortgagor. Thus, if the action is for recovery of land subject to a mortgage, the mortgagee in whom the legal estate is vested must be made a party (). So, also, if the matter in dispute involves the taking of accounts, he must be a party, so as to bind him by the accounts (a). (a) Rex v. Inhabitants of Catherington, 3 T. R. 771. (r) Rex v. Inhabitants of St. Michael's, 2 Doug. 630. () 36 & 37 Vict. c. 66. (t) Sellick v. Smith, 11 Moo. 459. (u) Dan. Ch. Pr. vol. i. p. 202. See Hobson v. Staneer, 9 Mod. 80; Wood v. (v) Allen v. Woods, 68 L. T. 143. CHAP. XXXV. When the mortgagee need not be a party. But if the relief sought in no way prejudices or affects the mortgagee's interest, he need not be made a party to an action by or against the mortgagor. So, a mortgagor in receipt of the rents and profits of land has been held to be entitled to maintain an action for an injunction to restrain an injury done to the mortgaged property without making the mortgagee a party (y). And where a registered owner of a patent which was subject to a mortgage brought an action claiming an injunction and damages for infringement, it was held that he might maintain his action without making the mortgagee a party, but without prejudice to any application by the defendant to have the mortgagee made a party, if circumstances should render it necessary to do so (≈). So, also, a mortgagor may enforce specific performance of an agreement relating to the mortgaged property, without making the mortgagee a party, if the interests of the latter will not be affected by the decision of the matter in dispute (a). No person can be added as a plaintiff in any cause or matter without his own consent in writing thereto (b). If a mortgagee is a necessary party to an action, and declines to be joined as plaintiff, the Court will order him to be added as defendant (c). If the mortgagor brings an action relating to the mortgaged must offer to property, and finds it necessary to make the mortgagee a party in order that the relief sought may bind the interest of the latter, the mortgagor must offer to redeem (d). Adding parties. Whether mortgagor redeem. Multifarious actions by mortgagor. Action in name of mortgagee. If a mortgagor brings an action in which he mixes up several distinct matters, in some of which the mortgagee has no concern, so that he is not a necessary party in regard to them, even an offer to redeem will not be sufficient. Formerly, in such a case, the bill would have been demurrable by the mortgagee for multifariousness (e); and under the present practice the mortgagee may have the action dismissed as against him with costs, and the Court may order the pleadings, so far as they affect him, to be struck out (f), or may order a separate action to be brought (g). Independently of sect. 25 (5) of the Judicature Act, 1873 (h), a mortgagor, indemnifying the mortgagee in respect of costs, is (y) Fairclough v. Marshall, 4 Ex.D.37. Van Gelder, Apsimon & Co. v. Sowerby Bridge, &c. Soc., 44 Ch. D. 374, C. A. (a) Francklyn v. Fern, Barn. Ch. R. 30, 32; Tasker v. Small, 3 My. & Cr. 63; Sanders v. Richards, 2 Coll. 568. And see Ford v. Tennant, 3 De G. F. & J. 695. (b) R. S. C. Ord. XVI. r. 11. (c) Van Gelder, Apsimon & Co. v. Sowerby Bridge, &c. Soc., 44 Ch. D. 374, at p. 394, C. A. (d) Hughes v. Cook, 34 Beav. 407. (e) Pearse v. Hewitt, 7 Sim. 471. (f) R. S. C., Ord. XIX. r. 27. (g) United Telephone, &c. Co. v. Tasker, 59 L. T. 852. (h) Supra, p. 629. entitled, if necessary, to take proceedings in the name of the CHAP. XXXV. mortgagee to recover or protect the mortgaged property (¿). pendens. If the subject-matter of an action is a disputed claim of right Whether assignee or title to property, and a party, whether plaintiff or defendant, pendente lite mortgages his interest pendente lite, the question will arise whether is a necessary party. the mortgagee is a necessary or proper party to the action. The registration of a lis pendens relating to land will affect Notice of lis a mortgagee with notice of the claim which is the subject of the action (), and bind him by its result accordingly, provided the plaintiff has, previously to the mortgage, sufficiently indicated the real estate sought to be charged in the action (k); and accordingly such a mortgagee need not be made a party, even though the plaintiff is aware of the mortgage. The doctrine of lis pendens is confined to real estate and leaseholds, and has no application to goods and chattels (7). pendente lite Prior to the stat. 2 & 3 Vict. c. 11, requiring registration of Assignees lis pendens, the general rule was that assignees pendente lite were not generally not necessary or proper parties to an action claiming right or necessary parties. title to property. It was said that such assignments were void or voidable (m), but the true meaning of this proposition appears to be that such an assignment was inoperative to vary the rights of the parties in that action as between themselves, and consequently that the assignee, though not a party, would be bound by a judgment adverse to his assignor, and so may wholly or in part lose the benefit of his assignment; otherwise, suits would be undeterminable if one party, pending the suit, could, by conveying to others, create a necessity for introducing new parties; if, however, the effect of the judgment should be to affirm the right or interest assigned, the assignment would be good as between the assignee and his assignor (n). The rule applied whether the assignor be plaintiff or defendant (0). where legal estate vested If, however, the absence of the assignee would have prejudiced Exception rights or interests of other parties to the action, it was proper to make him a party, as, for instance, if the legal estate had been conveyed to him (p); or if the title deeds have been handed over (i) Phéné v. Gillan, 5 Ha. 1. ) See further as to notice by registration of lis pendens, post, p. 1330. (k) Price v. Price, 35 Ch. D. 297. (1) Wigram v. Buckley, (1894) 3 Ch. 483, C. A. (m) Dan. Ch. Pr. 256. See Walker v. Smallwood, Amb. 677; Gaskell v. Durdin, 2 Ba. & Be. 167. (n) Per Sir T. Plumer, V.-C., in Metcalfe v. Pulvertoft, 2 V. & B. 200, (0) Eades v. Harris, 1 Y. & C. C. C. (p) Daly v. Kelly, 4 Dow, 435. See Bp. of Winchester v. Paine, 11 Ves. 197. in him, &c. CHAP. XXXV. to him; or if other incidental or consequential relief is asked for requiring something to be done by the assignee (2). Exception as to matters of account, &c. Effect of 2 & 3 Vict. c. 11. Continuance of action after assignment. Order of revivor without prejudice. Again, if no right or title to the property, which is the subject-matter of the action, is in dispute, but the question is merely one of administration or account, it would seem that an assignee pendente lite, who is, whatever the event of the action may be, entitled to a valid interest in the property, and concerned in any order which may be made affecting it, is a proper party to the action. Thus in an action for the administration of the trusts of a will, where the plaintiffs assigned their interests pendente lite, Sir L. Shadwell, V.-C., unhesitatingly upheld an objection that the suit was defective, and could not proceed, because the assignee was not before the Court; his Honour considered the case to be analogous to that of a suit for redemption, which, he said, could not be maintained in the absence, pendente lite, of the person entitled to redeem (r). It would seem that since the stat. 2 & 3 Vict. c. 11, when a suit has not been duly registered, a legal assignee pendente lite not having actual notice of the suit will not be bound, unless he is made a party; but that if he has not acquired the protection of the legal estate, the old rule will apply, and accordingly he will be bound though not a party. According to the present practice a cause or matter does not become defective by the assignment of any estate or title pendente lite, but in such a case the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved; and where, by reason of a change or transmission of interest, it becomes necessary or desirable that any person not already a party shall be made a party, an order that the proceedings shall be carried on between the continuing parties and such new party may be obtained ex parte upon an allegation of such transmission of interest (s). Where one of two plaintiffs had after decree assigned his equitable interest in the subject-matter of the suit, and the chief clerk's certificate had been made after the assignment, the Court, on the application of the other plaintiff, made an order of revivor against the assignee, without prejudice to the question whether the assignee was bound by the certificate (†). (9) See Higgins v. Shaw, 2 Dr. & War. 356, 362; Landon v. Morris, 5 Sim. 247, 269; Wood v. Surr, 19 Beav. 551; Massy v. Batwell, 4 Dr. & War. 58, at pp. 68, 80; MacLeod v. Annesley, 16 Beav. 607. (r) Solomon v. Solomon, 13 Sim. 516. As to parties to actions for redemption, see post, pp. 720 et seq. ; as to foreclosure, see post, pp. 1003 et seq. (s) R. S. C., Ord. XVII. rr. 1, 3, 4. See Kino v. Rudkin, 6 Ch. D. 160. (t) Vibart v. Vibart, L. R. 6 Eq. 251. |