1803.

LATOUCHE

υ.

Ld. DUNSA

As to the lease: it never can in its origin be considered as a bona fide lease; it was evidently intended to convey a benefit for Warren and to preserve it against his other creditors, and though the release is some evidence of having paid the alleged consideration, that was manifestly an under-value, Ld.DUNSANY and Warren was during all that time in Chamley's power: LATOUCHE. he does not appear to have consulted any other professional

man.

Under all these circumstances this lease should not be set up to the prejudice of Warren's creditors; not even those who claim as volunteers. And it is not necessary for the heir at law or personal representative, to institute a suit to set it aside: if set aside as fraudulent, and not merely voluntary, it is set aside in toto. The heir can have no benefia, except in case there should he a residue after payment of the debts, and it would be unreasonable to put him to file a bill at a great expense, when perhaps he might derive no benefit from it; it would tend to an useless multiplication of suits. The creditors have a right to have the lease set aside as a fraud on Warren himself; but as Chamley has let leases, it must be set aside so as not to affect them or make Chamley chargeable on account of them. The tenants under those leases are not before the court, and if they were, they probably would not be affected by any fraud of Chamley; so that he must account only at the rents reserved on those leases.

NY.

V.

The decree directed that "the master should review "the whole of his report in the original cause, and in "the second cause declared that upon the ground of the "affidavit of the defendants John and Peter Latouche, "made to oppose the application in these causes for a

receiver, and of the answer of the defendants David, John "and Peter in the second cause, and of the proceeding in "this court in the case of Cary against Warren and others, "and of the order made by the court of Exchequer on the

1803.

LATOUCHE

V.

Ld. DUNSA

NY.

V.

LATOUCHE.

"16th of May 1777, upon the said Cary's shewing cause against the order obtained by the said Susannah Trant on "the 18th of Feb. 1777 for the tenants of the estates of the "said John Warren to pay to their rents to the said Susannah Ld.DUNSANY" Trant as custodee, and of the general conduct of the de"fendants David, John and Peter Latouche respecting the "said estates, the said defendants claiming the benefit of the CC assignment made by said Susannah Trant to the defendant "David Latouche of the judgment obtained by James Trant "deceased against said John Warren in Hil. 1771, and of "the grant in custodiam thereupon to the said Susannah, and "also claiming the benefit of the two several judgments "obtained by the said David Latouche against the said John "Warren respectively in Mich. 1773, and Trin. 1776, and "of the grants in custodiam made thereupon to the said Da"vid Latouche, the said defendants ought to be taken as hav"ing been in possession of the estates of the said John War86 ren as custodees by themselves and the said Susannah "Trant, from the time the said Susannah obtained posses❝sion of said estates under the order of the 18th Feb. 1777, "until the said judgment debts would have been satisfied "according to their priorities by a due application of the rents "and profits of the said estates in the order and manner in "which the same ought to have been applied :-And the "master was directed to take an account of what was due to "Susannah Trant at the time of the assignment made by her, "and of the rent and profits which accrued after she obtained "possession, and that so much thereof as was received by her "or without her wilful default might have been received. "should be applied in discharge first of the costs and interest "and then in reduction of the principal of said debt: And "the master was directed to take an account of the rents "and profits which remained in arrear at the time of the as"signment and which afterwards accrued until the receiver

1803. LATOUCHE

V.

Ld. DUNSA-
NY.

v. LATOUCHE.

was appointed, and that the Latouches should be charged "with so much of said rents as without their wilful default "they might have received as custodees or as mortgagees, "(the rents of Courtduffe and Castleknock reserved in the "leases to Chamley being taken as the rents which ought to Ld. DUNSANF "have been received) and that the rents with which the "Latouches should appear to be so chargeable, should be applied in the first place in payment of the remainder of "what should appear due to Susannah Trant, and then in payment first of the costs and interests and then of the prin"cipal of the judgment debt of Mich. 1773; and that judg"ment being admitted to have been obtained as a secu

rity only for a promissory note for 1,800. and interest, "the master was ordered to take an account of what was "really due for principal and interest of said note and costs "of said judgment, and after payment thereof, then that "the rents and profits aforesaid should be applied in payment of the judgment of Trin. 1776: And that the master should inquire what was originally due for principal " and interest on such judgments, and should take an ac"count of what was due for principal, interest and costs "thereon at the time said judgment of Mich. 1773 should "appear to have been satisfied, and what should remain of "such rents and profits to be applied accordingly. And "after payment of said three several custodiam debts, it was "further ordered and declared, that according to the answers "of the defendants, the Latouches, in the second cause, they ought to be taken as in possession in the character of mortgagees; and that the remainder of what they should be "chargeable with, should be applied first in discharge of the ແ mortgage of October 1743, assigned to them by C. Abbott, "then in payment of the several judgments prior to the mortgage to Cary, of which the said defendants obtained assignments, according to the respective priorities of such incum

66

1803.

LATOUCHE

v

Ld. DUNSA

NY.

Ld. DUNSANY

บ.

LATOUCHE.

"brances, and lastly in payment of said mortgage to Cary; "but the debt due on the judgment obtained by Savage to "be subject to the inquiry thereafter directed: And it was "declared, that after payment to the Latouches of such debts, they were not entitled to any lien on the said es"tates by virtue of the mortgage of 9th November 1786, to "the prejudice of other incumbrancers. And the master was "further ordered to take an account of the several other "debts of said Warren which were liens on his said estates, " and that the creditors should have liberty to come in and prove the same, the master publishing an advertisement "for that purpose: And an account of what was due to "the defendants Latouches by virtue of the mortgage "of the 9th November 1786, so far as the same should

appear not to be satisfied by the application of the rents "and profits before directed, and subject to the right of 'the other mortgagees whose deeds have been duly regis"tered, and also subject to the inquiries thereafter direct"ed respecting the judgments assigned to or in trust for the "said defendants Latouches by Warren and Chamley. And "with respect to the judgment obtained by Savage, it ap

pearing to have been satisfied before the assignment there"of to Chamley, who paid no consideration for the same, "and consented to indemnify the executors of Savage in

66

respect thereof, such assignment was declared to be a "fraud on the creditors of Warren, and ought not to charge "his estate to their prejudice, and that the Latouches ought "to be deemed to have had notice that the same was sa"tisfied before the assignment thereof to them, and that แ it ought not to be considered as any security to them for "money advanced by them to Chamley or Warren, but that "they are entitled to be satisfied by Chamley the money "paid by them on said assignment, and accordingly an ac"count was directed of what was due to them in respect

1803.

LATOUCHE

V.

Ld. DUNSA-
NY.

υ.

"thereof, the same to be paid by Chamley. It was further "declared that the judgments obtained against Warren and <6 given to Chamley and his trustee as securities for the "debts of Palles were fraudulently assigned by Chamley "and his trustee to or in trust for the Latouches, and Ld. DUNSANY ought not to be deemed a lien on Warren's estates to the LATOUCHE. "prejudice of his other creditors, unless the estate of Palles "should appear to be insufficient, but that the Latouches "are entitled to the judgment obtained against Palles as a "security for their demands; and they were ordered to pro"ceed to recover the same, reserving the question how far

Chamley might be personally responsible to the creditors of "Warren for any charge that might eventually fall on his " estate in respect thereof. It appearing that a judgment "confessed by Warren to Parvisol, in 1773 and assigned "to the Latouches, was a security only for a smaller sum, " and redeemable by Parvisol; the master was directed to "inquire into, and state the real circumstances. The mas"ter was further ordered to inquire into, and state the real "consideration of the mortgage of 9th Nov. 1786 with all "circumstances relating thereto, and how far the same. "would remain unpaid after payment of the several debts, "&c. therein before provided for. And it was further de"clared that the leases of Castleknock and Courtduffe were "obtained by Chamley fraudulently and with a purpose of

defeating the just creditors of Warren, and in trust for "Warren; and that the releases obtained by Chamley from “Warren in 1794 were fraudulently obtained without just "consideration; but it was declared that the under-leases "made by Chamley bona fide ought not to be disturbed: "And the master was directed to take an account of the "rents received by Chumley or which without his wilful de"fault he might have received out of the said lands, until "the surrender of the lease of Courtduffe, and the appoint