31 fully in litigation by the former bill, until this new bill be brought to a hearing. (a) A Bill for Downer, or Partition. Dower is a mere legal demand, and it is the difficulty under which the widow labors at law, from not being able to ascertain the lands out of which she is dowable, (a) or the persons against whom to bring her writ, and from the embarrassments occasioned by out. standing terms, that entitles her to equitable relief. (b) The law gives her dower out of the estates of her husband, and the mesne profits from his death; and if she proceeds at law, and there should appear to be any mortgage, or terms of years in her way, she would lose her costs. The heir has all the title deeds in his hands, and knows what the estates are, his conscience therefore is affected, and hence it seems, equity interposes, (c) and so usefully, that writs of dower are seldom brought. (d) In equity, as at law, there is no limitation to a claim of the arrears of dower, (e) and though at law by the death of the heir, the widow loses all arrears incurred in his life time, (f) yet in equity, if she has filed her bill before the death of the heir, she is entitled to the mesne profits (g) from the time her title accrued, (h) provided she has made an entry; (i) and so in case of her death are her representatives. Proceedings to obtain a partition of estates, may be referred to this head, since a court of equity issues (d) Munday v. Munday, 2 Ves. $.C. Prep. in Ch. 252. Jan. 128. commission of partition, on account of the extreme difficuly attending the process of partition at law, where the plaintiff must prove his title as he declares ; and also the titles of the defendants, and judgment is given for partition, according to the respective titles so proved; that is attended with so much difficulty, that by analogy in the jurisdiction of a court of equity, in the case of dower a partition may be obtained by bill, (j) and a commission so obtained is much more convenient than a writ; the valuation of the proportions is better considered, and the interests of all parties much better attended to. (k) It has been said that a decree of partition is a matter of right, and that there is no instance of not succeeding, in it, but where there is not proof of title in the plaintiff, (1) but on the other hand it has been observed, that as a plaintiff has a legal title, it is considered as discretionary in the court, whether they will grant a partition or not; and where there are suspicious circumstances in the plaintiff's title, the court will leave the party to law. (m) The plaintiff, it appears, must state upon the record his own title to a moiety, (n) and the titles of the defendant; and with a view to enable the plaintiff to obtain a judgment for partition, the court will direct inquiries to be made to ascertain who were together with him entitled to the whole subject. (0) On a partition, every part of the estate need not be ) 1 Mad. 199. Agar v. Fairfax, 17 299, and Baring v. Nash, 1 Ves. and Ves. Jun. 552. Bea. 556, 7. (n) Idem, Cartwright v. Pulteney, 2 Atk. 380: (0) Idem, Agar v. Fairfax, 17 Ves 552. Calmady v. Calmady, 2 Ves. Jun. Idem, Cartwright v. Pulteney, 2 32 33 divided. If there be three houses, it would not be right to divide every house, for that would be to spoil them, but some recompense is to be made either by a sum of money, or rent for the moiety of partition to those that have the houses of least value. (p) A Bill to Marshal Securities. This bill is filed when a party has two funds by which his debt is secured; a person having an interest in one fund only, has a right in equity to compel the former to resort to the other fund, if that is necessary for the satisfaction of both. If therefore A. has two mortgages, and B. has one, B. has a right to throw A. upon the security which B. cannot touch. (a) But though, if two funds of a debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort, in order that he may avail himself of his only security, where that can be done without injustice to the debtor or creditor; yet that principle has never been pressed to the effect of injustice to the common debtor, much less have persons who are not common creditors of the same debtor, a right to compel the creditors of both funds to resort to the one, in order to leave a larger dividend for those who can claim against the other. (b) A Bill for Marshalling Assets. Marshalling of assets takes place in favor of simple contract creditors, and of legatees, devisees, and heirs ; and in a few other cases, but not in favor of next of kin, and the rules of the court in this respect have been (p) Clarendon v. Hornby, 1 P. Will: 446. (a) 1 Mad. 203. Lanoy v. the Duke and Dutchess of Athol, 2 Atk. 446. see Al drich v. Cooper and others, 8 Ves. 388. $95. (b) Idem, Ex parte Kendall, 17 Ves. 527. considered to be of great consequence to the practice of the court, and as useful a power as any the court possesses; for when there are creditors, and legacies to children for their portions, if the law was to have its full force, though the reason of it was good when it was originally framed, and the creditors were to exhaust the personal estate, it would be the ruin of families. (a) If a bill be filed for the administration of assets, and the court see at any period of the suit that the creditors by simple contract will be deprived of their debts by specialty creditors going against their fund, the court will of itself, though the bill is not framed with that view, direct the assets to be marshalled. If, for instance, it appears for the first time by the master's report, that a specialty creditor was paid out of the personal estate, it is not necessary to file another bill for the purpose of marshalling the assets. (b) And first with respect to simple contract creditors. Where debts by specialty, which are a lien at law on the real estate, are discharged out of the personal assets by executors, in case of the lands, the creditors by simple contract are entitled to stand pro tanto, in the place of the creditors by specialty, and have their debts satisfied out of the lands; and the court will decree them to be sold for the purpose. (c) If a mortgagee of freehold and copyhold estates, who is also a specialty creditor, exhausts the personal assets, the simple contract creditors are entitled to stand in his place, pro tanto, against both the freehold and copyhold estates, (d) upon the same principle, the benefit of the vendor's lien on the estate for the purchase money, has been marshalled. (e) (a) 1 Mad. 498. Amb. 128. Hanby Andrews, 2 Mod. 151. 153. vs. Roberts. (d) Idem, 499. Aldrich v. Cooper, 8 (b) Idem, Gibbs v. Ougier. 12 Ves. Ves. 382. 416. (c) 1 Mad. 498, 9. See Charles v. (e) Idem, 499. Trimmer v. Bayne 9 Ves. 209. 34 A Bill of Foreclosure. The object of a bill of foreclosure is to enable the mortgagee to have the estate sold in order to get his mortgage money, interest, and expenses, or that the mortgagor may redeem it without delay, or in default thereof, to be for ever foreclosed from redeeming it, 'that is, of losing his equity of redemption. The right to redeem a mortgage is carefully protected by courts of equity, and they will not suffer any agreement in a mortgage deed to prevail, that an es tate should become an absolute purchase in the mortgagor upon any event whatever; (a) and the reason is, because it puts the borrower too much in the power of the lender, who, being distressed at the time, is too inclinable to submit to any terms on the part of the lerder. (b) The rule is, once a mortgage and always a mortgage. (c) No agreement of the parties can affect the doctrine as to redemption in a court of equity, (d)" you shall not," says Lord Eldon, "by special forms alter what this court says are the special forms of that contract. "(e) With respect to the foreclosure of a mortgage, it has been determined that a mortgagee may file a bill of foreclosure without taking possession. A mortgagee cannot be compelled to take possession; for by so doing he would subject himself to an account, which the court will not force him to do. (ƒ) After the death of the mortgagor, in case the personal estate of the mortgagor is deficient, a mortgagee may pray a sale of the mortgaged premises, in the first (a) 1 Mad. 415. See Howard v. Harris, Vern. 190. (b) 1 Mad. 414. Tooms v. Conse't, s Atk. 261. (c) 1 Mad. 414. Newcombe v. Bon. ham, 1 Vern. 8. Howard v. Harris, 1 Aern. 33. James v. Oades, 2 Vern. 402. (d)1 Mad. 415. See Floyer v. Lavington, 1 P. Wills. 268. (e) 1 Mad. 415. Seaton v. Slade, 7 Ves 273. (f) 1 Mad. 419. Lord Perhyn v Hughes, 5 Ves. 106. |