may be said that the assignment of a mortgaged estate is nothing more than an assignment of a right to file a bill in equity. But the equity of redemption arises out of an interest, though only a partial interest. Courts of law and equity treat the mortgage as a mere security, and there is an interest left in the mortgagor, which he may assign. But, in a case where a party assigns his whole estate, and afterwards makes an assignment generally of the same estate to another person, and the second assignee claims to set aside the first assignment as fraudulent and void, the assignor himself making no complaint of fraud whatever, it appears to me that the right of the second assignee to make such a claim would be a question deserving of great consideration. My present impression is, that such a claim could not be sustained in equity, unless the party who made the assignment joined in the prayer to set it aside. In such a case a second assignment is merely that of a right to file a bill in equity for a fraud; and I should say that some authority is necessary to show that a man can assign to another a right to file a bill for a fraud committed upon himself. I own, however, that in the present case there is considerable difficulty arising from the reversionary interest which Robert Todd had to assign; and the question is, whether the bill is so framed as to entitle the plaintiffs to any equity on that subject.

With respect to the other points which have been raised, I think that William Todd, having assigned his interest to his brother, is not a necessary party to this suit. As to Jones, who was a party to the deed of assignment, there is some doubt.

Upon the whole, if I were called upon to decide this case now, I should decide against the demurrer on the narrow ground that there was, at the time of the assignment to the plaintiffs, a subsisting interest in Robert Todd, which did not pass to Edmonds. But the case deserves further consideration.

The LORD CHIEF BARON. The testator, after bequeathing certain annuities to various persons, directed that his real and personal estate should be sold by his executors, Edmonds and Hughes, and divided into three parts. His daughter, the wife of Edmonds, was to have one part; and, from the remaining two parts, she was to take £10,000, and the residue was to be divided between his two sons, Robert and William Todd; and he states, as his reason for giving his daughter a larger portion, that he had made advances to his two sons in his lifetime. He then specifies certain real estates, of which he gives the right of pre-emption to William Todd, and other estates, of which he gives the right of pre-emption to Robert Todd; and then he gives his daughter a right of pre-emption of any part of the residue; so that, with the exception of the two parts specifically appropriated to William and Robert Todd, if they chose to purchase them, his daughter had a right, if she chose, to purchase the whole.

The testator soon afterwards died. The two executors proceeded to administer his personal estate, and made sale of the real estate; and Edmonds, in right of his wife, purchased part of the real estate: though what part in particular was purchased by him is not specified; nor does it appear by the bill that he was the purchaser of any part of that of which the sons had a right of pre-emption. There was then a settlement of accounts, and there is a particular account annexed to the bill, and referred to; and, upon an inspection of that account, and from the circumstances stated in the bill, it appears that Edmonds had made payments from time to time to Robert and William Todd. These matters were then adjusted, and the balance due to the brothers was paid to them; and, up to that time, they acknowledged that the accounts were fully settled. Afterwards, both brothers executed releases to Edmonds and Hughes, the executors.

There are many conveyances and deeds set forth in the bill, but it is not necessary to particularize all of them, because those on which the question turns are few. The executors set apart a considerable sum of stock to answer the annuities bequeathed by the will, and the bill makes no complaint of that appropriation. They did no more than would be decreed to be done by this court, or any court of equity having the disposal of the testator's estate. By the release of 1829, Robert Todd purchased all the interest of his brother, William Todd; and, by other instruments, executed in 1830, his interest stood thus: that, with the exception of the reversionary interest which Robert Todd had in those sums which had been invested in the funds for payment of the annuities, he had, in consideration of a certain sum, and further sums which Edmonds had lent him, assigned to Edmonds the whole of his interest in his father's residuary estate, and also the whole interest of William Todd, which he had purchased. The whole of the accounts, therefore, had been settled, and the whole of the interest of Robert and William Todd vested in Edmonds in 1830. Matters remained so until the year 1833. By an instrument executed in that year, Robert Todd, having borrowed a sum of money of Messrs. Williams, the bankers, for securing to them the repayment of that sum, assigned to them the reversionary interest in the one-third part of the annuity fund, to which he had a right. By another deed, executed soon afterwards, it appears that, conceiving he had still an interest in other parts of the property, he assigned to Williams & Co. all his interest in his father's residuary personal estate, upon trust, that what money they should receive should be held for his benefit. The next deed of importance is executed in 1834, to which those bankers and Robert Todd were parties, and also the executors. By this deed Williams & Co., at the request of Robert Todd, released to Edmonds and Hughes that claim in the residuary interest which he had assigned to them; so that it appears that, for the second and last time, in May, 1834, the whole interest of Robert and William Todd was vested in the defendant Edmonds.

The bill states misconduct in the executors in administering the tes

tator's estate. It charges imposition and misrepresentation as made to Todd, to induce him to sign the release and settle that account. It makes a case, which might be a case for Robert Todd to file a bill to call on the executors to acquit themselves by answer of the representations of fraud and concealment practised upon him. But still he had nothing but a naked right to file a bill in equity- no legal right — no equitable interest, except a reversionary interest in those sums of money, out of which the annuitants were paid. If he had a right to file a bill at all, it was a naked right not clothed with any possession.

Under these circumstances, the plaintiffs come upon the stage. In September, 1834, a deed was executed by Robert Todd to the plaintiffs. [His Lordship then stated the deed.] The plaintiffs, under color of this conveyance, have filed the present bill, in which they call on the executors to answer for their proceedings in the administration of the testator's estate by which they seek of the court to set aside the deeds of conveyance from Todd to Edmonds to annul the purchase by Edmonds of any portion of the real property of the testator — and generally for an account; and they ground themselves on representations stated to have been falsely made to Robert Todd, to induce him to enter into these arrangements. All that is material to the question is raised by the bill, to which Robert Todd is made a defendant, who had no complaint to make, and who refused to be a plaintiff.

The defendants, Edmonds and Hughes, have demurred to the bill on three grounds. One ground of demurrer is, that the scheduled creditors of Robert Todd are not parties; and another is, that William Todd is not a party. I do not find any case from which it appears that the mere circumstance of a creditor being interested in the administration of an estate, makes it necessary that he should be a party to a bill like the present. The mere engagement by a person to pay the creditors, if he gets in the fund, will not make them parties to any contract for their payment; though, no doubt, where the creditors are parties to and interested in a contract of that nature, they must be made parties to a bill for carrying that contract into effect. Therefore, the demurrer would be well if confined to the fact that Jones is not a party; for he was a party to the deed, and entered into an engagement under seal with the plaintiffs, by which it is plain that they are bound. The other creditors are named in the schedule, but there was no contract by which they are parties.

The omission to make William Todd a party is not a ground for allowing the demurrer. He parted with his whole interest to Robert Todd, and there is no imputation of fraud as between those two persons, and no suggestion that William Todd had any ulterior interest whatever. It is not the object of the bill to bring before the court any question as to the money in the funds; and, therefore, any interest which William Todd has in that is undisturbed. He has no interest in

any question here. He is, therefore, not a necessary party. The remaining cause of demurrer, namely, that the plaintiffs have no

right to equitable relief, raises an important and curious question, which is this whether or not parties who either become purchasers for a valuable consideration, or who take an assignment in trust of a mere naked right to file a bill in equity, shall be entitled to become plaintiffs in equity in respect of the title so acquired. Now, in the course of the argument, it was urged that an equitable as well as a legal interest may be the subject of conveyance, and that the assignee of a chose in action may file a bill in equity to recover it, though he cannot proceed at law for that purpose. But where an equitable interest is assigned, it appears to me, that in order to give the assignee a locus standi in a court of equity, the party assigning that right must have some substantial possession, some capability of personal enjoyment, and not a mere naked right to overset a legal instrument. For instance, that a mortgagor who conveys his estate in fee to a mortgagee, has in himself an equitable right to compel a reconveyance, when the mortgage-money is paid, is true. But that is a right reserved to himself by the original security; it is a right coupled with possession and receipt of rent; and he is protected so long as the interest is paid; and it does not follow that the assignee of the mortgage and the mortgagee may not adjust their rights without the intervention of a court of equity. In the present case, it is impossible that the assignee can obtain any benefit from his security, except through the medium of the court. He purchases nothing but a hostile right to bring parties into a court of equity, as defendants to a bill filed for the purpose of obtaining the fruits of his purchase.

So, where a person takes an assignment of a bond, he has the possession; and, though a court of equity will permit him to file a bill on the bond, it does not follow that he is obliged to go into a court of equity to enforce payment of it. So, other cases might be stated to show, that where equity recognizes the assignment of an equitable interest, it is such an interest as is recognized also by third persons, and not merely by the party insisting on them.

What is this but the purchase of a mere right to recover? It is a rule not of our law alone, but of that of all countries, Voet. Comm. ad Pandect. lib. 41, tit. 1, sect. 38, that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is nowhere tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce. There are many cases where the acts charged may not amount precisely to maintenance or champerty, yet of which upon general principles, and by analogy to such acts, a court of equity will discourage the practice. Mr. Girdlestone was so obliging as to furnish me with a case, that of Wood v. Downes, 18 Ves. 120, in which it appears to me that the principle laid down by Lord Eldon goes the full length of supporting the judgment of allowing this demurrer. That was a bill filed to set

aside certain conveyances, which it was alleged were obtained by the defendant, in consequence of his situation of solicitor to the plaintiffs, the estate comprised in the conveyance not being in their possession at the time, but subject to litigation. Lord Eldon, in decreeing relief, adopted not only the ground that the party was the solicitor of the plaintiffs, but that the transaction was contrary to good policy. He said "The objection, therefore, is not merely that which flows out of the relation of attorney and client, but upon the fact that this was the purchase of a title in litigation, with reference to the law of maintenance and champerty;" and he accordingly decreed the conveyance to be set aside, on the ground of litigated title.

Here the proceeding is the converse of that in Wood v. Downes. It is not to set aside the conveyance in question, but to establish it. The principle is the same in both cases; for if, under the present circumstances, Robert Todd had filed his bill against the plaintiffs, I should have declared it to be a void deed, and should have ordered it to be set aside. Upon the same facts, therefore, I ought to refuse to establish the deed in their favor.

But the case does not rest here. There is a short but useful statute, which it is proper to refer to, that of the 32 of Hen. 8, c. 9, which is a legislative rule on the subject, and consistent with general policy and the principles of courts of law and equity. Under that statute, if the person who parts with his title has not been in actual possession of the land within a year before the sale, he, as well as the buyer, is liable to the penal consequences of the act. I do not say that that is precisely the case here, because the conveyance purports to contain an ulterior trust for the party assigning, and, therefore, an action could not be brought against him on the statute. At the same time, it is to be observed, that, from many cases in Anderson and Coke, it appears that courts of common law were favorable to actions on the statute, considering them to be highly beneficial, and not without good cause to be restrained.

It has been the opinion of some learned persons, that the old rule of law that a chose in action is not assignable, was founded on the principle of the law not permitting a sale of a right to litigate. That opinion is to be met with in Sir William Blackstone and the earlier reporters. Courts of equity, it is true, have relaxed that rule, but only in the cases which I have mentioned, where something more than a mere right to litigate has been assigned. Where a valuable consideration has passed, and the party is put in possession of that which he might acquire without litigation, there courts of equity will allow the assignee to stand in the right of assignor. This is not that case. Robert Todd, when he assigned, was in possession of nothing but a mere naked right. He could obtain nothing without filing a bill. No case can be found which decides that such a right can be the subject of assignment, either at law or in equity.

The case itself is a strong illustration of the doctrine, that to encour