2 Edw. Ch. 127 | New York Court of Chancery | 1833
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
The motion must be denied; and the purchaser be discharged from his contract, with costs.
