their priorities ascertained, and that the extent to which the estate or interest of the defendant, E. R. Rees, in the settlement was subject to the several incumbrances, or any of them, might be ascertained and declared, and that the four estates, or such of them, or such estate or interest therein, as to the Court should seem *394 meet, might be sold, and the produce of such sale paid and divided between the several parties who should be found entitled thereto, or in case the Court should be of opinion that the plaintiff was not entitled to relief against the mortgagees or incumbrancers, except upon terms of redeeming them, then that he might be let in to redeem accordingly, and that upon payment by him of what should be found due, the mortgaged premises might be conveyed to him; and that the estate and interest of E. R. Rees in the hereditaments and premises comprised in the settlement might be made subject to such of the mortgages and incumbrances as should be ascertained to be chargeable thereon, and to such extent as the Court should direct, or that the amount which such estate and interest might be declared to be subject, might be raised and paid thereout, under the direction of the Court. The Vice-Chancellor, after directing interest to be calculated on the legacy of 8001. from the end of one year after the death of the testator, referred it to the Master to take an account of what was due for principal and interest on the several incumbrances, and ordered, that upon the plaintiff and defendant, E. R. Rees, paying what was due for principal and interest and costs on the several incumbrances, the defendants were to release and convey the premises comprised in their several securities in manner following; that is to say, as to the estates not in settlement to the plaintiff and defendant, E. R. Rees, or the one who should redeem the same, and as to the estates comprised in the settlement, upon the trusts of the settlement, and that in default of the plaintiff and E. R. Rees, or either of them, so redeeming, that the plaintiff's bill should be dismissed with costs. Mr. Rolt and Mr. Shapter, for the plaintiff, in support *395* of the decree, submitted that the defendant E. R. Rees could sustain no damage by the decree, as obtained in this suit, which did not make it imperative upon him to redeem, there being no foreclosure as in the case of Hughes v. Williams. (a) (a) 3 Mac. & G. 683. Mr. Chandless, for the defendant Henry Lawrence, the first incumbrancer on the estates not in settlement, supported the decree. Mr. Pitman, for Richard Bowen Williams, a mortgagee of the settled estates whose mortgage was anterior to the date of the settlement. Mr. Freeling, for Catharine Rees, the legatee, also supported the decree in so far as it gave her interest from one year after the death of the testator. He argued that the devise to Richard Rees, being subject to the payment of the legacy, created a trust, which brought the case within the principle of Ward v. Arch, (a) Young v. Lord Waterpark, (b) Gough v. Bult; (c) but The Lord Chancellor said that there was a settled distinction in equity between bequests amounting to mere charges upon an estate and those involving express trusts, and that in the present case the legacy could not be carried higher than a mere charge. Mr. Stuart and Mr. Terrell, for the defendant, E. R. Rees, the appellant. They relied upon the judgment of Lord TRURO in Hughes v. Williams, (d) and contended that the decree of the Vice-Chancellor was erroneous in not ordering a sale of the unsettled estates. Averall v. Wade. (e) * * 396 Mr. Shapter, in reply. The bill was framed on the authority of Henley v. Stone. (g) THE LORD CHANCELLOR.-The decree appears to have done substantial justice between all parties, with the exception of that portion of it which relates to the allowance of interest upon the legacy for a period beyond six years from the filing of the bill, and in that respect, therefore, the decree must be corrected. The plaintiff on the record, in taking the estate of the insolvent, takes it subject to all equities to which it is liable. The insolvent, having by the settlement covenanted to relieve the settled estates from all incum (a) 12 Sim. 472. (c) 17 Law J. Ch. 486. (d) 3 Mac. & G. 683. brances created by him, could never have come into a Court of Equity to make the tenant in tail under that settlement contribute to the discharge of incumbrances subsequent to the date of the settlement. The effect in equity of such a covenant, as between the settlor and the parties beneficially interested under the settlement, was to throw all the debts of the insolvent on his unsettled estates. How far such an equity would bind third persons is not now to be considered; but the unsettled estates being so charged in exoneration of the settled estates, and the insolvent having afterwards incumbered those estates, the present suit was instituted by his assignee against the various incumbrancers and the tenant in tail, and it prayed in the alternative a sale of the estates. So far as the bill prayed a sale it was a matter of course for the *Court to have refused the relief which was sought; but inasmuch as the decree contained a direction as to taking an account of incumbrances, the tenant in tail was properly enough kept before the Court, because if the accounts were taken behind his back they would not of course bind him, and the consequence might possibly be to impose upon him the necessity of filing another bill. * 397 The ordinary method of enforcing redemption undoubtedly is by foreclosure, but a decree for redemption is not necessarily to be followed by foreclosure; and if the decree in the present suit had directed a foreclosure, the tenant in tail would have had just cause to complain of it, though he could only have been permitted to redeem upon the terms of paying off all the incumbrances. But the decree has not assumed that shape, for, with respect to the unsettled estate, it simply gives a right of redemption to the plaintiff and also to the tenant in tail; it is permissive only, and it provides that if the incumbrances on the settled estates should be discharged, they are not to be conveyed to the plaintiff, but to the uses of the settlement; the tenant in tail would thus have all that he was intended to have; namely, an estate tail discharged of all incumbrances subsequent to the date of the settlement. He is clearly not aggrieved by the decree; for if there is redemption he must have his costs, and if there is no redemption the bill must be dismissed with costs. Mr. Chandless asked for the costs of H. Lawrence as against the appellant. THE LORD CHANCELLOR. You may have them as against the plaintiff and add them to your mortgage. I am of opinion that the appeal ought not to have been from the whole decree, * which alone has rendered it necessary for the other defend-*398 ants to appear. 1 Mr. Stuart submitted that inasmuch as the bill was not filed by the legatee, the allowance of six years' interest should be calculated from the date of the decree. The Lord Chancellor, however, decided that the calculation should be from the filing of the bill. LETTS v. THE LONDON CORN EXCHANGE COMPANY. 1852. March 1, 2, 10. Before the Lord Chancellor Lord ST. LEONARDS. The case of a money payment in lieu of tithes made upon an annual value is not like that of an ordinary composition, and it requires strong evidence to make out that such a payment is to be treated as a composition; and if the annual payment is less than the annual value, the mere circumstance of the receipt of the annual payment will not establish it as a composition. Whether, assuming such a payment to be made and received as a composition, the same notice is necessary to determine the composition as is requisite in the case of one relating to a common render of tithes, quære. Form of reference to the Master to ascertain the value of the London Corn Exchange in regard to its liability to tithe under the Act 37 Hen. 8, c. 12. THIS was an appeal by the plaintiff from an order of the ViceChancellor KNIGHT BRUCE dated the 2d July, 1851, dismissing the bill without costs, and without prejudice to the filing of a new bill. The plaintiff in the suit, the Rev. John Letts, was the rector of the parish of St. Olave Hart Street, in the city of London: the defendants were the London Corn Exchange Company, incorporated under an Act of Parliament, 7 Geo. 4, c. 55, intituled "An Act for erecting and providing a new Corn Exchange at or near Mark Lane in the city of London," and Mr. Weld Wren, the clerk and solicitor of the company. The bill, which was filed in July, 1848, 1 See 1 Dan. Ch. Pr. (4th Am. ed.) 280, and note (4). VOL. I. 20 [305] prayed a declaration that the plaintiff and his successors, as * 399 rectors of the parish, were entitled to* receive from the London Corn Exchange Company, in respect of the Corn Exchange and premises erected and built by them pursuant to their Act of Parliament, tithes, or annual sums by way of tithes, after the rate of 28. 9d. in the pound upon the annual value of the said Corn Exchange and premises, and that the said annual value, and the yearly amount of tithes or annual sums in respect thereof, might be ascertained, and an account taken and payment ordered of what was due to the plaintiff for arrears in respect of the tithes and annual payments from Michaelmas, 1847, the plaintiff waiving all right to any penalties on account of the non-payment of such tithes. The claim of the plaintiff was founded on the decree annexed to the Statute 37 Hen. 8, c. 12, intituled "An Act for Tithes in London," the decree bearing date the 24th February, 1545, and being made by the arbitrators chosen between the parsons, vicars, and curates of London, and the citizens and inhabitants of the same, as to payment of tithes, and being enrolled in Chancery, and being under the statute valid as an Act of Parliament. This decree, as the plaintiff alleged, entitled him to receive tithes after the rate of 2s. 9d. in the pound upon the annual value for the time being of all houses, shops, warehouses, cellars, and stables situate within the parish. The premises of the defendants, the London Corn Exchange Company, consisted of two large areas under skylights, used respectively as corn and seed markets, a tavern or coffee-house and underground tap, a reading subscription room, and extensive cellarage on the basement. The revenue of the company was derived chiefly from the rents of stands or boxes placed round, and tables placed in the centre of the areas, and which were let to factors and others connected with the corn trade. The gross rev* 400 enue of the company amounted to something* above 33007. per annum, the gross amount of outgoings being about 9001. per annum. There were two questions raised between the parties: the first, whether the plaintiff was not disentitled to maintain the suit, on the ground of an undetermined composition; and secondly and principally, the mode in which the company's premises were to be assessed for tithe. |