Eagle Fire Insurance v. Cammet — 2 Edw. Ch. 127

Majority

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The Eagle Fire Insurance Company v. Cammet and others.

October 28 1833.

Headnote

As a general rule, it Is sufficient to bring before the Court the first person in being who has a vested estate of inheritance together with those claiming the prior interests and omitting those who may claim in remainder or reversion after such vested estate of inheritance. A decree against the party having that estate of inheritance will bind those in remainder or reversión or who, in any way, come afterwards; and they have a right of appeal from a decree made against the person having the prior estate. But there must be a clear tenancy in tail to dispense with the necessity of a remainder man being a party to a bill of foreclosure. If there bean express estate for life and it is doubtful whether the same person is also tenant in tail, the remainder man who has the first estate of inheritance ought to be a party.

M. C. mortgaged real estate ; and died, after making his will. He thereby gave all his real and personal estate to his widow until second marriage or death ; then to his daughter Mary as Jong as she lived; and if she had no heirs at her death, then to go to the children of J. C. Held, that the daughter Mary had only a life estate; and that on a a bill foreclosure, the children of J. C. ought to have been made parties.

An application wás made to compel John Bonsall to make good his purchase of premises which had been sold under a decree of this court in a foreclosure suit. The premises had been conveyed By the complainants to Moses Cammet and Amaziah Turner and a mortgage was given back for a part of the purchase money. Some months afterwards, Turner conveyed his undivided half-part to Moses Cammet. The latter made his Will; and, died. By this will he gave as follows : “ After all my just debts be paid and discharg- “ ed, I give and bequeath unto my beloved wife, Cynthia “ Cammet, all my estate, both real and persona], of every kind and description, as long as she remains my widow; “ and at her death or marriage-, to niy daughter as long as “ she lives; and if she has no heirs at her death, it is to go “ to my brother John Cammet’s children which lives in the “ town of Candy in the state of New Hampshire.”

The complainants, in filing their bill of foreclosure, had only made Cynthia Cammet, the widow, Mary Cammet, her infant child, and Elisha Burrows, a judgment creditor, parties

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defendants. The purchaser declined taking the premises: because the children of John Cammet, who lived at Candy, were not made parties.

Mr. John Boyd for the complainants.

Mr. --for the purchaser.

As a general rule it is sufficient to bring before the court the first person in being who has a vested estate of inheritance together with those claiming the prior interests (for instance, a tenant for life) and omitting those who may claim in remainder or reversion after such vested estate of inheritance : Mitf. 173. A decree against the party having that estate of inheritance will bind those in remainder or who in any way come afterwards; and (in proof of this) they have a right of appeal from a decree made against the person having the prior estate t Giffard v. Hort, 1 Sch. & L. 386, 411. But there must be a clear tenancy in tail to dispense with the necessity of a remainder man being a party to a bill of foreclosure. If there be an express estate for life and it is doubtful whether the same person is also tenant in tail, the remainder man who has the first estate of inheritance ought to be a party: 3. Powell on Mort. 975, 976.

Here, the widow and daughter of the mortgagor are the only parties ; and they are both tenants for life only under the will. This is not sufficient. In Gore v. Stackpole, 1. Dow’s P. R. 18., a foreclosure, in a similar case, was opened by a remainder man fifty years afterwards. It was done upon the opinions of Lords Redesdale and Eldon. In Reynoldson v. Perkins, Ambl. 564. the son to whom an estate of inheritance in the first instance was devised, was a party to the bill of foreclosure : and the sisters who claimed in remainder upon his death without issue were held to be barred.

It has occurred to me: whether the daughter Mary is not entitled to more than an estate for life under the will, in other words, whether an estate tail by implication is not given ? And if this should be the case, John Cammet’s chil

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dren would not be necessary parties. But, on looking at Lethieullier v. Tracy, 3. Atk. 784., I am satisfied it is otherwise. The issue of Mary living at her death, if there should he any, will take as purchaser's—and she has only a life estate.

The motion must be denied; and the purchaser be discharged from his contract, with costs.