be a pure legal title. His Lordship intimated, that had not the case of Sturgis v. Champneys been decided so long ago he should not have been disposed to follow it. That the learned Judge, however, who decided it had put his decision on the ground that there was no reason why the Court should not fasten upon the assignee of the husband when he was plaintiff in respect of an estate in land the same obligation which the Court had been in the habit of fastening upon the assignee when he sued in respect of an equitable interest in personal property. That then in a subsequent case, (a) the Vice-Chancellor KNIGHT BRUCE thought that Lord COTTENHAM did not mean to limit the equity of the wife as to real estate to the particular case where the assignee of the husband was plaintiff, and had applied to the case of real estate the rule acted upon in the case of Lady Elibank v. Montolieu. That *94 although the decision in * Sturgis v. Champneys, being a

decision of the Lord Chancellor, must be followed, having been established so long, his Lordship was not disposed to extend it any further than the actual decision] went, and that as in that case the assignees were plaintiffs, it would extend the rule very much to recognize the doctrine that a wife might come here asking a settlement of real estate belonging to the husband against the husband's assignee, which the assignee could render available without resorting to this Court.

At the conclusion of the arguments the Lord Chancellor said:

It is a lamentable thing to observe how much of the litigation in this country and how much of the difficulty in the administration of justice are due to the fact that the jurisdiction is divided between different Courts and conducted upon different principles. We have in this case to refer to the jurisdiction of a Court of Law, which is one thing, to the jurisdiction of a Court of Equity, which is another thing, and finally to the jurisdiction of a Court of Bankruptcy, which is a third thing. The justice of a Court of Law is one thing, the justice of a Court of Equity is another, the justice of the Court of Bankruptcy is a third; and it is from that confusion that this very simple case has become complicated.

The plaintiff in this case previous to her marriage was seised in

(a) Wortham v. Pemberton, 1 De G. & Sm. 644.

fee-simple of a freehold estate. Upon her marriage there was no settlement. The result, therefore, was, that the husband and wife became seised as tenants in fee-simple in right of the wife; and in that state of circumstances, by a deed duly acknowledged by the wife under the statute, the fee-simple was conveyed to * 95 a mortgagee to secure a sum of money. The equity of redemption, which was given in the form of a trust for reconveyance on payment of the mortgage money, was limited to the wife, her heirs and assigns. The interest therefore of the husband and the wife, save only so far as it was bound by the mortgage, remained unaltered.

But after this mortgage, there occurred the bankruptcy of the husband, and the alienation made by law upon that bankruptcy has the same effect as if the husband had, by a proper deed of conveyance, conveyed his interest in the estate. Therefore, after the bankruptcy, the interests of the husband and wife became divided into the interest of the husband in the estate during his life (there being issue of the marriage), and the inheritance, which of course remained vested in the wife. The controversy which arises is as to the right of the wife and the proper course to be adopted under those circumstances.

The bill strangely confounds the various rights and interests of the wife. Partly it asserts her right of redemption, and partly it asserts her right to a settlement of the property. It is however admitted at the bar that the amount of the mortgage is much greater than the value of the life-interest of the husband, and that fact relieves the case of much of the difficulty which otherwise would have belonged to it.

The estate of the wife being mortgaged in the manner I have described for the debt of the husband, the wife unquestionably assumes in the eye of the Court of Equity the character of a surety for the husband. Properly speaking she is not a surety, but she is so called by analogy. She has a title to call upon the husband

to * exonerate her estate from the debt. But the husband * 96 having become bankrupt, that exoneration, which has been so pressed upon me in argument, is nothing more than a right, after she has paid the debt, to go in as a creditor upon the husband's estate in bankruptcy, and there, together with his other creditors, to receive such dividend as she may be able in respect of this debt which she has so paid.

But if she desires to exercise the right of redemption I apprehend that she is entitled to a declaration of the existence of that right. The first right of redemption would belong to the assignees, because the first interest subject to the mortgage is the estate of the husband; but the assignees are not desirous of exercising that right, and I have therefore no difficulty in saying that I shall preface the decree which I am about to make with a declaration, that the assignees not desiring to exercise any right of redeeming the estate of the husband, the wife is entitled to redeem the mortgage now vested in the defendant Thomas Pyke. But it is then contended, on behalf of the wife, that she is entitled to a settlement of the whole of the equity of redemption; in other words, to a settlement for her separate use and for the benefit of her children of that estate and interest which have passed to the assignees of her husband under his bankruptcy.

Had it not been for the circumstances to which I have already adverted, namely, that by abandoning all right of redeeming the mortgage, the assignees declare that estate and interest to be worthless, I should have thought it necessary to examine the decisions and the doctrine discussed at the bar, for the purpose of

ascertaining whether I ought or ought not to declare the *97 wife entitled, * as against an adverse party, to any such equity. As it is, I forbear to enter into such an examination, inasmuch as there is in reality nothing to decide. For it follows that, the assignees, stating the equity of redemption to be worth nothing and therefore not claiming it, if the wife chooses to exercise the right of redeeming the mortgage, she will be entitled, after having exercised such right, to foreclose the estate. and interest of her husband; and, inasmuch as all the rest of the property is her own inheritance, she may if she pleases, with the assent of the husband, who would not, I take it for granted, object to such a decree, have an affirmance of that part of the decree of the Master of the Rolls which has at present directed a settlement of the estate. The decree, therefore, that I propose to make is this: [His Lordship then stated the terms of the decree, the material portions of which are set out below, and continued:]

The decree which I have now pronounced will, in point of fact, be of little or no use to the wife, because the contest is about that which is worth nothing, namely, the estate of the husband minus

the mortgage, which it was palpable from the commencement could not have been worth a shilling. The whole litigation, therefore, has been a litigation productive of nothing except costs and expenses, an additional reason for regret that any such matter should have been brought into a Court of Equity. Every thing might have been done in bankruptcy without a suit and two hearings and an expenditure of money more than I should think is the value of the subject in controversy.

The following are the material portions of the decree :

His Lordship doth order, that the said decree be reversed, except so far as the same directs payment by the next * 98 friend of the plaintiff to the defendants William Paine and Joseph Lenton of their costs of this suit; and the said defendants William Paine and Joseph Lenton by their counsel disclaiming all right to redeem the mortgaged premises in the pleadings of this cause mentioned, his Lordship doth declare that the plaintiff is entitled to redeem the said mortgaged premises. And it is ordered that an account be taken of what is due to the defendant Thomas Pyke for principal and interest on his mortgage in the pleadings mentioned and for his costs of this suit (to be taxed, &c.); and upon the plaintiff paying to the said defendant Thomas Pyke what shall be certified to be due to him for principal, interest and costs as aforesaid within six calendar months, &c., it is ordered. that the defendant Thomas Pyke do reconvey the said mortgaged premises, &c., to the trustees to be appointed of the settlement hereinafter mentioned, &c.; and upon the plaintiff redeeming the mortgaged premises as aforesaid, it is ordered that the same be settled (the defendant William Gleaves by his counsel consenting) upon the following trusts; that is to say, upon trust for the plaintiff for her separate use during her life, with remainder to her children as she shall by deed duly executed or by her last will appoint, and in default of appointment in trust for her children. equally; and in case the plaintiff shall die without leaving any children, then in trust for the plaintiff and her heirs absolutely (such settlement or reconveyance to be approved by the Judge); but in default of the plaintiff redeeming the mortgaged premises as aforesaid, it is ordered that the plaintiff's bill be dismissed out

of this Court as against the defendant Thomas Pyke, with costs to be taxed, &c., and paid by the said Barford Pyke, the next friend of the plaintiff, to the said defendant Thomas Pyke," &c. Reg. Lib. 1863, A. 116.

* 99

*AUSTER v. POWELL.

1863. January 16. Before the Lord Chancellor Lord Westbury.

A testator sold to his daughter's husband a business, which the testator had purchased, for sums secured by promissory notes, payable five years after date. The testator also became security for the husband to a banking company. The husband became bankrupt, and the testator proved his debt under the bankruptcy. Afterwards he made his will, giving his property upon trusts for his children, but declaring that in case he should have made any advance of money to any of his children or to the husbands of his daughters, such child should not be entitled to receive any part or share of the testator's property until he, she, or they should have brought into hotchpot such sums of money as should have been so advanced, with interest. Before the promissory notes became due, but after the testator had been obliged to pay the debt to the banking company for which he was surety, Held, –

1st. That the amounts due on the promissory notes were not advances to be brought into hotchpot.

2d. That the money paid to the banking company was an advance,' and was not extinguished or deprived of that character by the bankruptcy, but must be brought into hotchpot.

THIS was an appeal from the decision of the Master of the Rolls upon a special case submitted to the Court to declare the construction of the will of Samuel Haines, dated the 19th of August, 1858, whereby the testator gave to Charles Henry Auster and Henry Stephen Hill the sum of 10,000l. upon trusts for the testator's wife during her widowhood and subject thereto, to be dealt with as part of his residuary personal estate. He then gave certain leaseholds to the trustees upon trusts to be dealt with as part of his residuary personal estate. He also gave to them certain freeholds upon trusts for his daughters Eliza Powell and Maria Warner Gillett as tenants in common for life, and their

See Boyd v. Boyd, L. R. 4 Eq. 305.