r PZ7I5' 13X1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PRACTICAL TREATISE ON THE LAW OF MORTGAGES. By JOHN PATCH, OP THE MIDDLE TEMPLE, ESQ. BARHISTER AT LAW. LONDON: PRINTED FOR JOSEPH BUTTERWORTH AND SON, LAW BOOKSELLERS, 43, FLEET-STREET : AND J. COOKE, ORMOND QUAY, DUBLIN. 1821. I ritlWTED BT J. AMD T. CLARKE, SB, ST. JOBN-BQUAKE, LONDOlf. P R E F A C E. As an apology to the Profession for troubling them with the present performance, the Author has to observe, that he has been so well aware of the difficulties of his undertaking, and of the importance and utility of his subject, that he has spared no pains to make his Work either correct or complete. His endeavour has been that the writing should be precise and clear, the arrange- ment scientific and obvious, and the several parts which serve for reference sufficiently comprehensive and exact. He believes that few cases or decided points falling under the head of his subject have escaped his attention. Wherever he thougiit the law doubtful, or wherever he thought that a case admitted of explanation, he has stated his sentiments; in which he has been the more imboldened, because it has always been under the impression, that the effect of his observations must depend entirely upon a2 /rT.*.<»! ,»-/--« iv ' PREFACE. their truth. If he has fallen into any errors, or been guilty of any omissions, he hopes that he has at least shewn himself entitled to some share of the Reader's candour and indulgence. 2, Pump Court, Temple, Not. 19, 1821. CONTENTS. CHAP. I. PAGE Of a Mortgage .... 1 CHAP. II. Of Mortgages under Potters, bt/ Tenants in TAiZjand Trustees, and of Mortgages to Trustees . 38 CHAP. III. Of the Mortgagee . . . .77 CHAP. IV. Of the Mortgagor, and the Equity of Redemption 153 CHAP. V. Of the Interest on Mortgage Money , . 213 CHAP. VI. Out of what Funds Mortgsiges shall he Paid . 249 CHAP. VII. Of Tacking^ and the Priority of Incumbrances 276 ^i CONTENTS. CHAP. VIII. PAGE Of the Possession of Chattels Personal . 314 CHAP. IX. Of the Possession of Title Deeds, — Of the Registrh- TioN of Deeds relating to property/ Ij/ing in the Regis- ter Counties, — And of Frjiud in a prior Incum- BRANCER .... 335 CHAP. X. Of Notice . . . . .363 CHAP. XI. Of the liahililT/ of a Mortgagee to see to the Application of the Mortgage Money, — Of the Tender of Mort- gage Money, — And of the Proof of Payment of Mortgage Money . . . . 400 CHAP. XII. Of FORECL'OSURE .... 425 CONTENTS OF APPENDIX. Page No. I. Frere v. Moore and Others, . . 448 II. Robinson et al. v. Harrington et al. . 455 III. Mortgage in Fee, . . 457 IV. Mortgage Bond, . . . 4G3 V. Warrant of Attorney to confess Judgment, 464 Defeazance for the Warrant of Attorney/, . 465 VI. Mortgage by Demise, . . . 466 VII. Mortgage o/" Renewable Leaseholds, . 471 VJIl. Release in Fee, upon trust to sell to secure money, 477 IX. Assignment of a Term on a Mortgage, . 483 X. Appointment of a Receiver for a Mortgage, 485 XI. Deed of further charge on a Mortgage, making Interest Principal, and securing a further advance, . ... 489 XII. Assignment of a Mortgage, . . 491 XIII. Release of an Equity of Redemption, . 494 XIV. Notice by a Mortgagee not to pay Rent to the Mortgagor, . . .496 TABLE CASES CITED IN THE FOLLOWING WORK. Note—" »." follows the name of the plaintiflf; " and," the name of the defendant. A. Abbett and Jebb Abbey and Hancox Abbot and Clarke Abbott and Hobart ■ and Rex , Page 401 256 139, 306, 307 438 83 Abingdon, Lord, and Bertie 238, 239, 242 Abingdon and Prowse 61 Abney v. Williams 396 Abrahams and Doe dem. Biddle 100 Acherley v. Roe Aclom and Vanderzee Acton V. Acton ■ V. Pierce Adams v. Claxton • V. Gould and Hill • ■ V. Holbrooke • V, Meyrick ■■ V. St. Leger Adderley and Gresly Addington v. Cana Aggas V. Pickerell Aldrich V, Cooper Aldridge and Floyd 191, 430, 152 53 284 284 283 431 ' 196 439 254 98, 109 81, 92, 239 214 210 269, 270, 271, 272, 274, 2.84 179 Page Aldridge v. Wallscourt, Lord, 252, 255 Alkis and Brompton 243 Allen V. Anthony 371 — — V. Papworth 155 Amesbury v. Brown 235, 240, 243, 256 Amhurst t). Dawling m V. Skynner 184 Amis V. Lloyd gi Ancaster, Duke of, v. Mayer 249, 252, 255, 259, 260, 261, 264 Anderson and Hammond and Harmond and Hickman V. Maltby Anderton v. Cook Andre v. Andrew and Attorney General Andrews v. Berry V. Brown Angel V. Smith Angell V. Draper Anglesea, Earl of, and Phipps Annandale ex parte Annesley and Phipps Annett v. Carstairs 326 326 48 216 254 152 294 165 67 83 191 222 128 256 96 TABLE OF CASES CITED. Page Anonymous (1 Atk. 102.) 277 (2 Atk. 333.) 204, 205, 20G, 210 . (3 Atk. 313.) 190, 203 . (Barnard, C. C. 221.) 443 Cha. Ca. 4.) (2 ( ( ( ( ( (Cro. 8.) 35.) 136.) 208.) . 244.) Eliz. 68.) 273, 339 178 363 396 296 244 246 (2 Eq. Ca. Abr. 594.) 196 ( 605. pi. 37.) 443 (1 Freem. 474.) 117 (2 Freem. 84.) 6 (Mosl. 96.) 401, 402 ( 246.) 397, 443 ( 248.) 171 (1 Salk. 153.) 75 ( 154.) 67 ( 155.) 129 ( 400.) 23 (Skin. 238.) 170 . ( 338.) 172 (4 Taunt. 876.) 233 (7 Taunt. 244.) 232 . (2 Ventr. 349.) 252 ( 353.) 279 ( 361.) 392 (1 Vern. 45.) 151 ( 104.) 45 . (o Vern. 177.) 283 ( 205.) 68 (6 Ves. 287.) 83 Anonymous v. Langford 281, 282, 288, 289, 290 Anthony and Allen 371 Applebee and Edwards 42 Aicedechne or Archdeacon v. Bowes Archer v. Snatt Ardglass v. Muschamp r. Pitt Armitage v. IMetcalf Arnold v. Chapman Arnot V. Biscoe Arundel and Day Arundel, Lady, v. Phipps 317, 329 Ascough y, Johnson 278 82, 193 280, 282 9 9 249 254 361, 394 391 Page Ashby and Bacon 363 Ashenhurst v. James 128, 153, 227, 228 Ashley v. Baillie Ashley and Langton Ashton and Goodier and Trafford Askham and Berry Astley V. Powis ■ V. Tankerville, 367 378 430, 433 45,71 71 229 Earl of 240, 243, 252, 264 Aston V, Aston 277 and Culpepper 273, 384, 401, 403, 405, 407 V. Curzon 392 andWolston 10, 11 Astwicke and Watkins 410 Athol, Duke of, and Lanoy 253, 269, 271, 272 Z5 5 22 399 321 294 254 190 76 140 Atkins and Mestaer ' ■». Uton Atkinson and Gott and Hall . V. Maling Attorney General v. Andrew . V. Barkham 36. V. Basnett V. Bowles V. Bowyer V. Brewers' Company 228 137 374 190 404 393 V. Buller and Casberd V. Crofts 189, V. Glegg V. Gower 392, ». Hesketh 111 V. Meyrick 141 and Neal 229 V. Parkin 141, 142 and Powlet 113, 114 189 136 V. Sands V. Vigor u.Winchelsea, Earl of Atwood and Moth Aubrey v. Popkia Audley v. 141 9, 10 156 293 215 Auriol V. Thomas Austen v. Executors of Dodwell 247, 417 Austin and Tate 264 Aylet V. Hill 86 TABLE OF CASES CITED. xl Aynsly v. Reed Ayton and Reed Page 190,193, 200 379 B. Bacon V. Ashby 363 Bacon V. Clerk 55, 71 Bacchus or Backhouse and Bed- ford 345, 346, 347, 348, 349, 355, 363, 372 Backhouse v. Middleton 45 Badger, Ex parte Badham v. Odell Baglehole, Ex parte Bagot V, Oughton Bailey and Goodtitle and Harkness 233 155, 229, 230 34, 85 259, 265 160 169 367 45 289 129, 278 316, 318,330 319 215 153 363-, 371 146 131. Baillie and Ashley Baines v. Dixon Baker v. Harris V. Hellelt • and Horn and Leonard ■ • and Palmer — — V. Rose ■ and Taylor ■ and Thornbrough and Toplis 420 V. Williams 165 v.Wmd 7 Baldwin and Lloyd 402, 403 Bale and Manlove 7, 109, 277 Balfour v. Welland 401 and Wilson 379 Ball c. Ball 251 Ballard and Bayley 379 ■ and I'ellat 396 Ballettu. Spranger 193 Bamfield and Knight 155, 156 . V. Wyndham 255 Bamford v. Baron 107, 326 Bampton and Winne 110 Banbury, Earl of, and Bisco 370 Bance and Heams 281, 282, 295 Bandon, Earl of, and Mead 421 Banks and Mills 41, 46, 71, 76, 400 ■ and Witherington 118 Bankes «. Sutton 243 Barber v. Barber 24 Barchard and Low 9 Barker and Brampton, 339, 396, 398 • ' V. Chapman 37 ■ and Corbett 170, 173, 205, 235, 237, 243, 2G7 Barker and Davy and Perry Page 199 86, 134, 445 Barkham and Attorney General 254 and Brown 224, 225, 228, 229 Barkney v. Tyson 9 Barnard and Doe dem. Davidson 219 367 217 75, 271 9 150 220 ■ •, Lord, and Vane V. Young Barnardiston and Carter V. Lingood Barnes and Blacklock Barnett and Tomkins u.Weston 297,336,450,454 Barnewell v. Cawdor, Lord 253 Baron and Bamford 107, 326 and French 115 Barren v. Sabine 13 Barrett v. Wells 245, 362 Barrow v. Martin 206, 207 and Packington 118 Bartholomew v. May 250, 251, 253 Barthorpo.West 186,190 Bartlett and Linton Barton and Richards and Roscarrick 178, 379 373 181, 442 67 100 190 260 396 91 ,253 145 Barwell v. Parker Barwick v. Thompson Basnett and Attorney General Basset v. Perceval Bassett v. Nosworthy Bastard v. Clarke Bateman v. Bateman 41. Bates V. Dandy Bath, Earl of, v. Bradford, Earl of 67,71,293,295 Bath, Marquis of, and Montgu- merie 436 Bath and Wells, Bishop of, and Phipps 82 Batson, Ex parte 321 Battle and Moore 219,220 Battison and Clyatt, 193, 234, 235 Batty V. Lloyd Baxters. Dyer 39, Bayard v. Smith Bayley y. Ballard t'. Bishop Bayly v. Robson Bayne and Trimmer Baynesu. Fry Baynton and Perkins Bayntun and Perkins 260, 9 169 51 379 61 282 271 215 228 261 XII TABLE OF CASES CITED. Beale v. Beale Beaneaiid Ithell, Bearcroft and Geary Beard and Chandler Beasley and Fisher BeatnifFu. Smith Page 73 306, 363, 379 115 126 219,220 350 Beavorand Winchester, Bishop of Beck U.Welsh Becket v. Cordley Beckford and Campbell V. Close 440 42,43 307, 359 207 210 82,131, 153,154 and 422, 444 359 26 258, and see Addenda Beezeley and Welford 359 Belch V. Harvey 203, 204, 205 Belcher and Thunder 81 Beckford and Quarrell 152, Bedford, Corporation of, Monkhouse . , Earl of, and Clare Bedo V. Piper Beecher and Scott, Belchier and Green V. Renforth Bell V. Maidmaa 41,45,47, 62 291, 385 71 157 252 83 V. O'Reilly ■ V. Phyn ■ ■ and Walker Bellaraont, Earl of, and Connar 222 223 Bellamy and Bodely 222 Ex parte 1 24 Bellen, Lord, and Kelly 228 Belvidere, Earl of, v. Rochford 263 369 255 275 393 433 26 230 153 370 52 215 151, 246, 364 127 328 401 57 167 Benceand Brothers Bendloe and Wainwright Bennet, Ex parte ■ and Kelsal V. Lee ' and Needham Bennett u. Edwards V. Kneebiiie ■ and Moore V. Seymour Benson v. Parry Bentbam v. Ilaincourt Benton, Ex parte V. Thornhill Benyon v. GoUins Berkley and Brome Bernard and Butler Bernard v. Montague and Sitweli Berney v. Sewell Berrisford v. Milward Berry and Andrews V. Askham Bertie v, Abins Page 62 64, 68, 107 83, 157, and see Addenda. 131, 358 165 71 on, Lord 238, 239, 242 Bertue v. Stile Best and Brent Bethell and Vernon Bevan, Ex parte Bevis and Cocker Bickham v. Cross Bicknel v. Page Bicknell and Evans and Smith Biddulph V. St. John and Shelburne 190 142 8 226 443 229 ' 254 336, 340, 360, 394 113, 133, 162 90, 350, 355 228, Biggs and Lingham Billinghurst v. Walker Bingham v. Gregg Binks and Spragg — — and Troughton Birch's case Birch V. Ellaraes and Watkins ■ V. Wright Bird and Lloyd and Lomax Birkhead and Wortley 291 Birt and Clifton and Meder Bisco V. Banbury, Earl of Biscoe and Arnot Bishop and Bayley and Freeman V. Sharp Bithazy and Dashwood Blackburne and Chinnery and Strode 192, 43 316 262 89 i-92 197 446 28, 341, 371 319 79, 80 52 194 134, 276, , 363, 386 273 393 370 361,394 61 165 250, 280 427 339, Blacklock v. Barnes Blackman and Powseley Blackston v. Moreland 286. Blackwell v. Symes Blades V, Blades and Reed 316, 317, 319, 330, 331 Blake ». Foster 100 and Sharpnell 247, 248 94 389, 3d8 150 159 288 282 350 TABLE OF CASES CITED. Xllt Page Blakeway v. Stafford, Earl of 67 Blamire and Carlisle, Mayor of 180 Blaad V. Graves 37 V. Middleton 11 Blaney and Draper 26 Blenkarne v. Jennens 367 Blois V. Hereford 145 Blount V. Winterton, Earl of 196 Bloxam v. Hubbard 36 Bluck and Crisp 246 Blythe and Postlethwaite 106, 397 Blythway and Dashwood 87, 445 Boakes and Kingdome 394 Boddum V. Riley 228 Bodily V. Bellamy 222 Bodington and Wilkes 300, 306, 307 Bodmin v. Vanderbendy 392 Boehm and Raphael 154 Boles and Brander 25, 29 Bolton, Duke of, and Brida;e- water. Lord Bond V. Kent Bonham v. Newcomb Bonithon v. Hockmore Bonney v. Ridgard Booth V. Booth Booth and Doe dem. Banks V. Rich Borlace and Draper Borrett and Richards Bosanquet v. Dashwood -, Ex parte — and Williams Bostock V. Bostock Bosvil V. Brander Bothomley v. Fairfax Bourne v. Dodson Bovey V. Skipwith Bowaman v. Reeve Bowater and Rigge Bowen v. Edwards ' and Largan 169 282 10 115 - 409 86 70 430 359 28,32 220 127 93 246 145 311 321 298 254 116, 165 68 82 64 Bower and Mitchell Bowes and Arcedechne or Arch- deacon 82, 193 and Chawner 22 , Ex parte 127 Bowles and Attorney-General 76 and Brander 25, 29 ■ V. Parsons 97 ■ V. Perring 134 Bowman and Holiday 255 Bowyer and Attorney-General 140 Page Bowyer and Clerkson 147, 437 Boycot V. Cotton 40, 63, 66 Boyer and Clapham 210 Beyers and Forside 153 Boyes and Spencer 104, 430, 434 Boyle V. Peterborough, Bishop of 53 Box and Chase 246 Boxwill and Copleston 8 Brace v. Marlborough, Duke of 25, 288, 290, 291, 292, 307, 385, 395 Brachen and Tunstall 61 Braddil and Talbot 15 Bradford, Earl of, and Bath, Earl of 67,71,293,295 Bradley and Bulstrode 155 and Garforth 146 Bradnox v. Gratwick 254 Bradshaw v. Outram 439 Braithwaite v. Braithwaite 279 Brampton v. Barker 339, 396, 398 Brander and Bosvil 145 V. Bowles or Boles 25, 29 Brandlyn v. Ord 387, 390 Brassey v. Dawson 375 Braybroke u. Inskip 136,407 Brend v. Brend 170, 172, 175, 267 Brent v. Best 142 Brereton v. Jones 288, 295 Brest and Scott 214 Brettell, Ex parte 137 Brewer and Rakestraw 109, 199, 202 Brewers' Company and Attorney- General 228 Brewin v. Brewin 63 Brian and Juxon ' 75 Briciiwood and Watson 252 Bridgewater, Lord, v, Bolton, Duke of 169 Bridgman v. Dove 252 Briggs and Lacoa 67 Brightens, Ex parte 134 Brigstocke v. Mansel 72 Brine v. Hartpole 199 Briscoe u. King 16 Bristol V. Hungerford 25, 294, 297, 308, 386 Broadway v. Morecraft 226 Broker and Hall 252, 254 Brome v. Berkley 57 Bromfield, Ex parte 244 Bromhall v. Wilbraham 252 xir TABLE OF CASES CITED. Page 286, 396 278 10 254 243 141 Bromley v. Hammond ■ y. Holland and King ■ • and Lucey Brompton v. Alkis Brook and Fleming Brooks o. Greathed 83, and see Ad denda. Brothers v, Bence 369 Brotherson and Rawlins 46 Brotherton v. Hatt 368 Broughton v. Davis 131, 374 Brown and Amesbury 235,240,243, 256 Brown and Andrews Gl V. Barkham 224, 225, 228, 229 and Fell V. Gibbs and Goodrick V. Heathcote and Metcalf V. O'Dea and Piddock — ■ and Wareliam Browning v. Morris Bruce, Ex parte Bruen u. Crueri 197, Brummell v. Prothero Bruton and Manlove Bryan v. Cormick Brydges, Ex parte V. Phillips Bryson v. Wylie Buchanan and Edsell Buckley v. Buckley Bucknal v. Iloistou Buckney v. Metham Bucks, Duke of, v. Gayer Budgin and Christ's Hospital Bull and Jon Buller and Attorney General Bulstrode V. Bradley Bulteel, Ex parte Bunbury v. Winter Burden v. Kennedy Burdett and Powis Burgess v. Wheate Burgh V. Francis V. Langtoa Burk and Fitzgerald Burke V. Crosbie Burnell and Foley 439 ' 182 43 321, 322 13 lOS 391, 392 41 220 32, 33 59, 63 252, 254, 255, 256 7, 109, 277 82 133 252 316 211 162 317, 319,327 163 151 144 43 137 155 32, 37 215 188, 372 50, 52 112, 181 309 446 364, 392 407 329 Burnell v, Martin and Walker Burnett v. Kinnaston Burt V. Dennett Burton v. Knowlton v. Sclattery Ex parte Bury V. Bury Busheilu. Bushell Butler y. Bernard V. Butler V. Duncombe V. Ev^ry and Jackson c. Page 85 316, 318 145 70 254, 256 225 127 367 355, 356 167 260, 262, 264 56 390 325, 340 Cadell and Mace Cadle V. Fowle Cadogan v. Kennett Caine and Fountaine Calist V. Walker Call V. Mortimer Callidge and Hall Calvert and Doe Campbell v. Beckford Cann and Adiington Cannon v. Pack Cant, Ex parte Capell and Quarles Card r. J<;flray Carlisle, Earl of, and Gobe 147, 437 Carlisle, Mayor of, v. Blamire 180 Carlton and Lowther 3Q7, 387 Carpenter and Hurford 28 Carpenter and Sorrell Carr and Hill Carroll and De Tastet —— — and Savage Carstairs and Annett Carter v. Barnardiston ■ u. Carter V. De Brune Ex parte 124, 125, 285, 371 and Hall 40, 55, 64, 65, 6Q Carticr and Howgrave 48 Cartwrightand Htbblethwaite 54,55 and Matthews 298 and Rand 104,161,168, 190 Casberd v. Attorney General 374 Casborn and Challis 280, 281 Casborue v. Scarfe and Inglis 182, 193, 235 316 92, 386 329 433 215 196,438 153 423 207 ' 214 282, 290 133 249 27 384 42 380 432 96 75, 271 73 434 TABLE OF CASES CITED. XT Page Case and Falkener 321 Casoa V. Round 288, 393, 394 Catherington, Inhabitants of, and Rex 103, 166 Catof V. Charlton 285 Cawdor, Lord, and Barnewell 253 Cawthorne v. Holben 24 Chadwell and Godfrey 194, 439 Chadwick and Godfrey Chailey and Rex Challis V. Casbora Chambers and D'Arcy •■ ' ■ V. Goldwin Champant v. Ranelagh Champney v. Champney Chandler v. Beard and Tooms 441 167 280, 281 357 82, 130, 150, 156 222 56 126 16 Chandos, Duke of, and Lyon 64, 65 Duke of, u. Talbot 60, 61, 148 > Duke of, and Temple, Earl 169 Chaplin v. Chaplin 238 Chapman and Arnold 254 and Barker - 37 V. Emery 104 and Howse 141 — — V. Tanner 151 Charlton and Cator 285 V. Low 305 Charnells and Siddon 390 Charnock and Moss 321 Chase v. Box 246 Chauncey v. Tahourden 221 Chawner v. Bowes 22 Cheney and Hunsden 360, 361 Lord, and Pierpoint 66 Cherry and Ferrars 370, 388 Chester and Davie 393 V. Willis 148 Chesterfield v. Cromwell 231 Cheval V. NichoUs 350 Chichester and French 252, 254 Child and Irnham 8, 9 V. Stephens 1 86 Chilton and Gross 162 Chinnery v. Blackburne 94 I'hitters and Hartwell 186, 281 Cholmley v. Oxford, Countess of 201 Cholmondeley v. Meyrick 49 Christ's Hospital v. Budgin 144 Churchill v. Grove 296 Churchman v, Harvey 56 Page Clapham v. Boyer 210 Clare v. Bedford, Earl of 359 Clark and Machil 43 Clarke v. Abbott 139, 306, 307 .. and Bastard 91 and Kirk 378 and Wride 253 Clarkson v. Hanway 9 Clay and Hungerford 118 y. Sharpe 17, 18, 101 Claxton and Adams 283 Claypool and Ismoord 443 Clayton and Roberts 198 Clench a. Witherby 10 Clerk and Bacon 55, 71 Clerkson v. Bowyer 147, 437 Cleveland's case 114 Cleyton and Newcastle 391. Clifden, Lord, and Hope 50, 52, 64 Clifton V. Biit 273 Clinton V. Hooper 265, 266, 267 Lord, and Palk 74, 197, 198, 286 V. Seymour 56, 57 Clopton and Long 279, 385 Close and Beckford 210 Clyatt V. Battison 193, 234, 235 Coare v. Creed 85 Cocker v. Beirs 443 Cockes V. Sherman 155, 291, 297, 309, 313, 363, 441 Codrington and England 8 V. Foley, Lord 54, 55, 57, 66 V. Parker 82 Cogan and Huit 294 Cole and Kerrison 107 V. Warden 180 Colman v. St. Alban's, Duke of 92, 160 Coleman v. Winch 281, 282, 283 Coles and Forshali 311, 312 and Martini 323 Collens and Lowndes 67 Collet V. De Gols and Ward 380, 382, 383, 384 V. Munden 285 Collier and Spurgeon 6, 7, 203 Collins V. Forbes 318 V, Martin 325 and Wetherell 133, 198 Connar v. Bellamont, Earl of 222, 223 Colville and Stapleton 254, 255 xn TABLE OF CASES CITED. Page Colvill and Gray 25 Comcrford and Lucas 94 Coming, Ex parte 32, 33 Complin and Goddard 43, 194, 286, 288, 363, 391 Conisby and Henn Conway v. Conway Conway v. Longville V. Shrimpton and Stapleton 412 53, 57 64 209 222 254 252 169 446 151 330 116, 117 46 30, 33, 287 165, 189 269, 270,271, 272, 274, 284 287 and Doe, dem. Tyliard 97 Cook and Anderton V. Gwavas and Ogle V. Sadler Cooke and Cropping , Ex parte and Hickes ■ V. Parsons Coombe, Ex parte Coombes and Rex Cooper and Aldrick V. Cooper and Newby — and Procter 283 155, 206, 227, 232 • — V. Thornton 97 Coote V. Mammon 367 Cope B. Cope 250,251,258,263 Copeman v. Gallant 318 Coppin V. Coppin 391 V. Fernyhaugh 370 Copleston v. Boxwill 8 Corbet V. Kinaston 253 and Powis 253, 281 Corbett v. Barker 170, 173, 205, 235, 237, 243, 267 and Ewer V. Maidwell Corbyn v. French Corder v. Morgan Cordinglee v. England Cordley and Becket Cormick and Bryan V. Trapaud 405, 408 55, 56, 62 275 17, 18, 101 100 307, 359 82 105 Cornish v. Mew 142, 193,234, 235, 250 Cornwallis and Lassels 38 Corvel V. Sykes 204 Costigan v. Hastier 162 Cotterel u. Hampson 400, 402 Cotterell v. Purchase 7, 13 Cotton and Boycot 40, 63, 66 Page Cotton V. Everard 401 and Garth 376 V. lies 143, 148 Coutts and Gillespie 336 Coventry r. Coventry 269 Coventry and Tweedale 253, 257 Cowne and Legastick 68 and Vaughan 68 Cowper and Proctor 155, 206, 227, 232 V. Scott 58, 59, 63 Cox, Sir Charles's creditors' case 186, 187 245, 268 257 225 UL and Gay and Hale and Jory • and Sheldon 350, 367 andSherman 155,291,297, 309, 313, 363, 441 and Whaley Coxeter and Cutler Craggs and Digby Crane and Turner Craven, Lord, and Dyer Crawford and Garth Creed and Coare V. Gubbins Creswell and Watts Crewe v. Dicken Crickett V. Dolby Cripps V. Jee Crips V. Grysil Crisp V. Bluck V. Heath and Lant Croft V. Powell 256 254 226 145 111 385 85 117 360 404 63 9 138 246 155, 194, 441 446 7, 19 371 70 199, Crofton V. Ormsby Crofts andAttorneyGeneral 189, 1 90 Crompton v. North 255 and Sale 312 Cromwell and Chesterfield 231 Cropping V. Cooke 151 Crosbie and Burke 407 Crosby v. Crouch 379 Cross and Bickham 228, 229 Crouch and Crosby 379 Cruise and Sargeson 238 Cudmore and Symonds 43 Culpepper's case 296, 396 Culpepper v. Aston 273, 384, 401, 403, 405, 407 184 443 156 Cumming v. Twysden Cunliffe and Edwards Curtis and Johnson 1 TABLE OF CASES CITED. xtH Curtis and WilHamson Curtown and Underwood Curzon and Aston Cutler V. Coxeter Page 401 392 254 D. Dale V. Smithwlck < and Westerdell Dalmer v. Dashwood Daly V. Kelly ' ■ and Kennedy Danby and Hanson and Palmer and Palmes 132, 28 97 82 355 ' 365 118 253 182, 190, 191, 244 145 428,439 371 Dandy and Bates Daniel v. Skipwith Daniels v. Davison DanseyandRavenhill 55, 63, 64,66 D'Arcy V. Chambers 357 Darcy v. Hall 279 Darlington, Earl of, and Wilson 269 Dashwood v. Bithazey 427 V. Blythway 8?, 445 — and Bosanquet 220 and Dalmer 82 Daubigny v. Duval 323 Daubuz and Pye 25, 28, 42, 86, 434, 444, 445 Davie v. Chester Davies and M'Combie Topp V. Davis and Broughton — — V. Dendy —— V. Gardiner and Macclesfield, V. May V. Strathmore, Earl of. 393 324 253 131, 374 116 251 Earl of, 324, 329 153 and Titley Davison and Daniels and Robinson Davy V. Barker Day V. Arundel .— — , Ex parte — — and Williams — — and Wood Dawling and Amhurst Dawson and Brassey • V. Dawson -— — — and Pothonier 291 311, 372 285 371 , 385 199 391 275 155 100 111 375 156 3 Page Dawson v. Wood 319 Dean and Leash 377 De Bouchout V. Goldsmid 325 De Brune and Carter 434 Decble and Needier 155, 156 Deg V. Deg 295 Degelder u. Depeister 152 De Gols and Ward and Collett 380, 382, 383, 384 Dehew and Saunders De la Motte and Rex De Leira v. Edwards Delight and Wakerill Deligne and Sanders Demainbray v. Metcalf 165, 104 189 323 91, 443 306 283,284 Dench and Hall 169, 176, 179 Dendy and Davis 116 Deniston and Forbes, Lord, 350, 355 Dennett and Burt Dennison, Ex parte Depeister and Degelder Derby and Lingard and Nokes , Earl of, and Rivers De Tastet v. Carroll Dethick and Stevens Detillin v. Gale Deverall and Remington Devonshire and Foxcroft Dswar V. Span Dicken and Crewe Dickens and Morecock Dickenson v. Harrison Digby V. Craggs , Earl, Ex parte 71- V. Morgan 70 152 152 295 252 57 380 57, 64 132, 156 26 382 223 70, 404 346, 348, 349, 355 233 226 244 376 93 Diggles and Gretton Dighton V. Macclesfield, Earl of. Dike V. Ricks Dixall and Roberts Dixon and Bains V. Ewart V. Saville Dobson V. Lead beater 153 407 38 45 321 182 390 Dodd and Hine 350, 367, 372, 394 Dodson and Bourne 321 Dodwell, Executors of,and Austen 247, 417 Doe dem. Liudic v, Abrahams 100 dern. Banks v. Booth 70 V. Calvert 423 dem. Davidson v. Barnard 219 XVlil TABLE OF CASES CITED. Doe rlem. Tilyard v. Cooper 97 V. Manning 105, 377 V. Milborne 68 (lem. Hiirman u. Morgan 168 V. Parratt 139, 140 dcm. Bristowe v, Pagge 161 ■ tlem. Burre'.l v. Perkins IGO dem. Gibbons v. Potts 162 and Addenda, 170 dem. Tubb v. Roe 90 dem. Wliitfield v. Roe 98 •" V. Sybourne 80 • dem. Shewen v. Wroot 179 • dem. Berkeley, Earl of, v. York, Archbishop of, 423 Dolben and Stuckville 447 Dolby and Crickett 63 DoUand and Lyster 188, 277, 372 Dolman v. Smith 252, 254 Dolphin and Eyre 376, 395 Donald, Ex parte 84 Dnnisthorpeu. Porter 244,261,262 Donne v. Lewis 253, 25-1, 256 Doran v. O'Reilly 232 Dormer and Sheldon 39, 45, 47 Dorrien and Lucas 34, 326 Dorset, Duke of, and Woodcock 50, 52 Doulben and Hughes Dove and Bridgman Ddvvding and Ridout Downes, Ex parte • V. Grazebrook Doyley v. Perfal Drage and Wool ley Drake and Saunders Draper and Angell V. Bhney — — — V. Borlace Drapers' Company v, Yardley Drew V, Power Dring and Holmes Drohan v. Drohan Drummond and M'Leod 268, 408, 409 O.St. Albans, Duke of, 92 254, 295 252 71 85 117 372 277 222 191 26 359 370 156 76 409 Duncombe and Butler 56 Duboft and Morell 24 Dudley y. Dudley 182 . and Ward 256 Dunch V. Kent 370 Duncomb v. Duncomb 12 . V. Hainsley 197, 439 Dunkiu andM-Clure 23 Page Dunsany, Lord, and Latouche 355, 356, 357, 383 Duplin and Kinnoul 252 Durnford y. Lane 376 Dutch y. Warren 218 Duval and Daubigny 323 and Thynn 237 Dwyer v. Gurry 232 and Jones 326 Dye and Thwaytes 38 Dyer and Baxter 39, 169 V. Craven, Lord, 111 y. Dyer 361 y. Sweeting 4l4 Dyke y. Sweeting 22 Dymoke y. Hobart 110 E. Earl and Senhouse 370, 393, 396 East India Company and Gordon 316 Eaton y. Jacques Ebor' Dux and Welden Eccles y. Thawill Echlin and Tasburgh Edge y. Worthington Edington and Rex Edgworth and Milton, Lord, Edmunds v. Povey 296, Edsell y. Buchanan Edwards y. Applebee and Bennett and Bowen • y. Cunliffe and De Leira y. Fashion y. Freeman y. Harben ■ y. Warwick, Countess of, 143 Effingham, Lady, and Napier 262, 433 338, 340 433 153 28, 341,371 404, 405 154 147 246 157, 183, 233 218, 223 93 118 283 13 28 166 226 363 211 42 230 6, 8 443 323 144 269 327 Egerton and Head El cock y. Glegg Elisha y. Elisha Eliames and Birch Elliot y. Merryman and Shepherd Ellis V. Gnavas and Pettat El ways and Morley Elwes and Forrest TABLE OF CASES CITED. xiz Pas:e Elwin V. Elwin CO Ely, Bishop of, and Took 447 Emery and Chapman 101 Emperor p. Rolfe 49 Endsworth u. GrifliUi 13 England v. Codrington 8 and Cordinglee 100 Ennis and King 15 Evanso. Bicknell 336, 340, 360,394 and Shaw 24 and Smith 54, 59 V. Thorras 118 and Thornhill 214, 226, 227 and White 141 Evelyn v. Evelyn 40, 46, 72, 259, 268 Everard and Cotton 401 Evers and Garret 140, 149 Every and Butler 390 Ewart and Dixon 321 Ewer V. Corbett 405, 408 and Lockwood 153, 435 and V/hite 203 Ex parte . 134 Ex parte Annandale 4 28 ■ Badger 233 Baglehole 34, 85 Batson 321 ■ • Bellamy 124 Bennet 275 Benton 127 • Bevan 226 Bosanquet 127 Bowes 127 Brettell 137 Brightens 134 • Bromfield 241 Bruce 32, 33 Brydges 133 Bulteel 32, 37 Burton 127 Cant 133 Carter 124, 125, 285, 371 Coming 32, 33 Cooke 330 Coombs 30, 33, 287 Day 275 ■ — Dennison 152 Digby, Earl 244 Donald 84 — Downes 83 Fenniliteau 127 Findeu 29 Fisher 84, 275 Ex parte Garbult Gillam — Grim^tone • Grove Haigh Harvey Herbert Hintoii Hooper Jackson Jennings Johnson Kensington Knott 2 301, 303, 305, 307, Langston Machell Maire Marsh Marshall Matthews — Morgan — Mountfort -^Otto _ Farr -^ Payler — Quiucey — Kichards — liuffin _ Sergison — Smith — Topham _ Trew _ Tutin _ Ward ell Warner _ Wetherell . Whitacre Whitbread Wild man — Wills — Wilson — Winde Exton V. Greaves Eyren. Dolphin Eyres and Jason and Mulcarry F. Fagg's case Fagg and Sherley Fairbairn and Hay b2 Page 134 128 191 83, 274 28 233 382, 383 330 30, 287 84,85 84, 214, 221 127 30, 31,332 88, 290, 300, 339, 383, 454 SO 96 127 31, 116, 329 124 321 138 28,29 128 275 84 330 133 332 125, 139 127 84 134 124,405 233 33 31 139 29, 33 275 28 92, 160 125 7 376, 395 6, 116 99 396 396 321 XX TABLE OF CASES CITED. Fairfax and Bothomley ■ r. Montague Page 311 207 69 321 423 376 1G2 144 Fairtitle v. Gilbert Falkener v. Case Farmer dem. Karl, v. Rogers Farquharand McQueen P'arrantr'. Level 118 Fashion and Edwards Fastnedge and Price 281, 282, 295 Fauconberge, Lord, and Fitz- gerald 39, 169, 177, 367 Faulder and Harper 338 FawcetandTankerville, Earl of 259 Fawcett t). Fothergill 97,191 V. Lo-ivther 102, 103, ISO Fearns v. Young 133 Featherstone v. Feawicke 28 Featherstonhaugh and Mitford 226 Fell U.Brown 197,439 Fenn and Winch 215 Fenniliteau, Ex parte 127 Fenton and Trueman 68 Fenwick and Langstaif 115,156 Fenwicke and Featherstone 28 V. Reed 209, 397 Fereyes v. Robinson 252 Ferrars v. Cherry 370, 388 Fern and Francklin 107, 190, 192 Fernyhough and Coppiu 370 Ferrall y/Shaen 220 Ferrers, Lord, and Upton 67, 224 I'ieldandYea 100 Fielding and Wilson 1 86, 272, 295 Finchj Sir Moyle, v. Throck- morton 99 Finden, Ex parte 29 Fisher v. Beasley 219, 220 84, 275 442 147 128 227 392 Fisher, Ex parte Fish wick V. Lowe Fisk V. Fisk Fitton and Macclesfield, Earl of Fitzgerald v. Burk 364, « V. Fauconberge, Lord 39,169, 177,367 V. Ranisford 109 Fitzroy v. G william 22 1 ■ and Osmond 9 Fleetwoods. Jan^en 444 • V. Templeman 43 Fleming u. Brook 141 Fletcher and Sibson 419 Florence and Tannei 370 Floyd V. Aldridge 179 Floyd V. Mansell Floyer v. Lavington Flud V. Flud Fluitt and Plumb Focus V. Salisbury Folpy V. Burnell 10, Page 204 /, 13, 15 234 28,301, 336, 341, 370, 371 163 329 Lord, and Codrington 54, 65, 57, 66 and Lingon 45 Forbes and Collins 3, 18 Lord, V. Denlston 350, 355 V. Moflfatt Forrest v. Elwes Forresters. Leigh Forshal v. Coles Forside v. Boyers Forster and Hyde Forth and Harrison Forty and Leveridge Foster and Blake, and Fulthrope and Savage Fothergill and Fawcett ■ V. Fothergill — V. Kendrick Fotherley and Tredway Fountaine v. Caine Fowke and March Fowje and Cadle Fowler V. Wrightwick Fownesand Hunt Fox V. Fox Foxcroft V. Devonshire — — — V. Leicester Francis and Burgh Francklin v. Fern Franco and Newman Eraser and Partridge V. Moor Freak v. Hearsey, Horseley, or Horsey 437 Freeland and Sayle 430, 434 Freeman v. Bishop 165 • and Edwards 269 and Parsons 169^ 263 and Pasley 360 and Scurry 214, 220 P'reke and Lewis 40 French t). Baron 115 V. Chichester 252, 254 and Corbyn 275 V. luchiquin, Earl of 252 Frere y. Moore 303, 307, 449 148 218, 223 254, 262, 273 311,312 153 434 372, 387 87 100 149 360 97,191 40, 104 311 103 433 256 92, 386 153 135, 440 250 382 8 309 117, 190,192 165 24 210 TABLE OF CASES CITED. XXI Fry and Baynes Fulthrope v. Foster Fursaker v. Robinson Page 215 149 391 Gallimore and Moss Gaily V. Selby Gal ton V. Hancock and Mallack Garbutt, Ex parte Gardener and Lucy Gardiner and Davis — -i V. Griffitii — xt. Painter Gardner and Ivilvington ' . and Mason G. Gainsborough, Lady's, case 250 V. Gainsborough 255 Gale and Detillin 132,156 Gallant and Copeman 318 79,160 110 250, 253, 272 434, 447 134 269, 273 251 110, 111 105, 377 6 220 Garforth v. Bradley 146 Garret u. Evers 140,149 Garth v. Cotton 376 • V. Ward, or Crawford " 201, 385, 425, 440 Gartside v. Isherwood 9 Gaskill V. Hough 256 Gatty u. Quarrel 144 Gatwick a. Simpson 418 Gay V. Cox 245, 268 Gayer and Buckingham, Duke of 151 Geary r. Bearcroft 115 Gee and Robinson 185, 250, 264, 266, 268, 422 Geery and Kilmary 40 George and Pye 376 Gerrard v. Gerrard 54, 56 Gibbons and Jones 129, 274, 331 , 332, 353 Gibbs and Brown 182 Gibson V. Rogers 46 Gilbert and Fairlitle 69 u. Golding 134 and Ivy 46,72,75 Giles V. Hall 247 and Nathans 326 Gill and Haselington 329 Gillam, Ex parte 128 Gillespie v. Coutts 336 — and Mestaer 321 Gladwin t. Hitchman 227, 435 Page Glegg and Attorney General 404 — and Ellcock 433 Glennie and Mair 321 Glover and Powell 279, 280 Glynn v. Scawen 340 and Spurway ftS Gnavas and Ellis 147 Gobe V. Carlisle, Earl of 147, 437 Goddard v. Complin 43,194, 286, Godfrey v. Chadwell V. Chadwick ■0. Watson Godolphin and Opie Godwin V. Munday Gofton u. Mill Golding and Gilbert Goldwin and Chambers 288, 363, 391 194,439 441 115, 277,289 106,107,108, 340 61 67 134 82, 130, 150, 156 Golightly and Jaques 220 Gollinsand Benyon 40l Goodale and Middlemore 17 Goodall V. Rivers 55, 65 Goode and Sansom 24 Goodieru. Ashton 430,433 Goodman u.Grierson 13,14 Goodrick v. Brovrn 43 Goodright v. Mead 43 V. Straphan 171 Goodtitle t;. Bailey 160 ■ dem. Gallaway u. Herbert 158 V. Jones 80 . V. Lonsdown 90 . V. Morgan 299, 335 dem, Taysum O.Pope, 91, 116 Goodwynu. Lister 124 Goodyer v. Ince 26 Gordon v. East India Company 316 u. Graham 287 «. Raynes 48 Gore V. Stockpole 446 Gory's case 282 Gott V. Atkinson 22 Goldsmld and De Bouchout 325 Gould and Adams V. TancreJ 430, 431 153, 155 Gower and Attorney General 392, 393 andSollcy 186 u. Mead 262, 254 Graham and Gordon 287 xxu TABLE OF CASES CITED. Page Grant and Thompson 140,141 Granville and Worsley 48 Gratwick and Bradnox 254 Graves and Bland 37 Grayr. Colvill 25 Gray, Lord, v. Gray, Lady 252 V. Minnethorpe 252, 254 Grazebrook and Downes 117 Greatbedand Brooks 83, and see Addenda Greaves and Exton 7 V. Mattison 54, 55, 66 Green v. Belchier 41, 45, 47, 62 . and Suffolk, Earl of 220 Greenbank and Hearle 64, 182 Greenville and Huntington 293,296 Gregg and Bingham 89 Gregory U.Gregory 10 Gresley v. Adderley 81, 92, 239 Greswold o. Marsham 194, 366, 372 Gretton v. Diggles 93 Grierson and Goodman 13,14 Griffin and Lingard 118 Griffith and Endsworth 13 and Gardener 1 10, 1 1 1 and Owen 135 V. Spratley 9 andTwiselton 9, 10 Grirastone, Ex parte 191 Gross U.Chilton 162 Grove and Churchill 296 Ex parte 83, 274 Grover and Tabor 147 Grubham and Stone 327 Grysil and Crips 138 Gubbinsu. Creed 117 Gurney and Hall 322 Gurry and Dwyer 232 Guyon and Smith 401 Guavas and Cook 252 Gvvilliam and Fitzroy 221 Gwynne v. Heaton 9, 10 Gyles r. Hall 4i7 H. Hacket U.Wakefield 296,396 Haigh, Ex parte 28 Haight V. Langham 249 Haille V. Smith 326 Ilalncourt and Bentham 151,246, 364 Hake and King 50 Hale V. Cox 257 Hales V. Hales and James Halifax u. Higgins Hall V. Atkinson V. Broker V. Callidge V. Carter 40, 55 and Darcy . V. Dench and Giles V, Gurney ■ and Keech V. Smith Hallitey u. Kirtland Hambling v. Lister Page 420 234 224, 225 399 252, 254 153 64, 65, 66, 73 279 169, 176, 179 247, 417 322 81, 161, 190 370 282, 283 141 Hambly and Yates 196,202,203,442 Hamborough v. Wilkie Hamerton v, Rogers Hamill and Trimleston, Lord 150, Hamilton v. Lloyd ■ and Mansfield, • V. Royse V. Wo r ley Hamlyn v. Lee Hammett v. Yea ■ and Maddock Hammond v. Anderson and Bromley Hampson and Cotterel Hampton v. Hodges Handcock and ■ 87 281 135 154 141 162 370 Lord 367 259,260 83 215 219 326 286, 396 400, 402 106, 162 124 Hancock and Galton 250, 253, 272 Hancox v. Abbey 256 Hankey v. Vernon 28 Hansard v. Hardy 1 53, 372, 374, 387 Hansley and Buncombe Hanson v. Danby Hanway and Clarkson Harben and J'^^dwards Harcourt v. Knowel ■ — and Liebman Harding and Massam and Murray Hardingham v. NichoUs Hardman and Omerod Hardwick and Mattheson ■ V. Myod Hardy and Hansard V. Reeves 197,439 118 9 327 396 333 186 13 364, 391, 392 74,75 260 70, 245, 287, 403 153, 372,374, 387 207, 208, 277 TABLE OF CASES CITED. XXIll Hare and Ilaverglll and Ruscombe V. Shearwood Page 59 173,239,243 8 Hargrave v. Le Breton 382 Ilargreaves and Thornton 380 Ilarkness ir. Bailey 169 Ilarman t>. Anderson 326 and VVilson 143 Harmond t). Oglander 169,176 Harnard T7. Webster 151 Harper v. Faulder 338 Harrington and Robinson 312,455 Harris and Baker 289 V. Harris 229 V. Horwell . 8 and Howard V. Ingledew Harrison aud Dickenson V. Forth ■ and Haughton ■ in re V. Owen Hart and Twentyman Hartley v. Hurle and Tooke Hartop V. Hoare Hartpole and Brine V. Walsh Hartshorn v. Slodden Hartwell v. Chitters Harvey and Belch 190 395 233 372, 387 63 124,126 421 96 252, 257 86j^445 324 199 203 379 186, 281 203, 204, 205 and Churchman 56 , Ex parte 233 V. Harvey 62 V. Montague 380 V. Tebbutt 1 32, 446 Harwood t). Wraynam 187 Haseliiigton u. Gill 329 Hasewell and Watts 360 Haslewood v. Pope 252, 273 Hassei and Lowthiau 281 Hassell zj. Simpson 168 t). Tynte 1 30, 422 Hastier and Costigan 162 Hatch and Holford 93 Hafcliett and Lloyd 22, 67, 68 Hatt and Brotherton 308 Hatton andnulland 163 Haughton v. HarrijOn 63 Havergiil v. Hare 59 Hawcs y. Warner 250 Hdwkes and Moore et Ux. 179 Hawkins T). Taylor 291,385 ' and White 79 Hawland and Wymonsel Hay V. Fairbairn Hayes v. Hayes Haylinand Taylor Hayter and Hickey Hay ward and Stephenson Head v. Egerton Healey and Hodle Heams v. Bance Hearle v. Greenbank Hearsey and Freak Heath and Crisp u. Heath Perry Page 296 321 193, 235 156 25 295, 379 338, 340 208, 210 281, 282, 295 64, 182 437 155, 194, 441 256 63 Heathcote and Brown 321, 322 V. Paignon 9 and Stephenson 255 Heather and Wilson 3,36 Heaton and Gwynne 9, 10 Hebblethwaite v. Cartwright 54,55 Hedgeworth and Jackson v. Primate 291, 292, 293 Hele and Philips 178,190 Heliar v. Jones 54 Hellett and Baker 129, 278 Heming and Orde 202, 210 Henn v. Conisby 412 Herbert, Ex parte 382, 383 and Goodtitledem. Gal- la way 158 Herbert v, Tream 42 Hereford and Blois 145 Hereford, Lady, and Tracy 236 Heme v. Meeres 9 V. Meyrick 273 ■ and Reeves 250 Hesketh and Attorney-General 111 16 51 270 91 91 246 Hesse V, Stevenson Heiirtley v. Mason Heviningham v. Heviningham Hewitt r. M'Cartney Hewson and lluson Heyward v. Lomax Hibbert and Rolleston Hickes v. Cooke Hickey v. Hayter Hickford t'. Machin Hickman r. Anderson Hide and Lomax Hide and Mead Hiern v. JMi!l 116, Iliggins and Halifax V. Yoik Buildings Com- . 117 25 25 48 135, 152, 151 254 341 224, 225 pany 92, leo TABLE OF CASES CITED. Page Hi^ginson v. Kelly 330 Iirggon V. Syddal 293,296, 393, 396 Hill u. Adams 196 and Aylet 86 V. Carr 42 and Nott 9 V. Price 435, 445 V. Simpson 409 V. Worsley 183 Hinchbroke, Lord, v. Seymour 58, 59 Hine V. Dodd 350, 367, 372, 394 Hinton, Ex parte 330 Hitchcock V. Sedgwick 298, 382, 383 Hitchmaa and Goodwin 227, 435 Hix V. Ling 247 Hoare and Hartop 324 V. Parker 324, 393 Hobart v. Abbot 438 and Dymoke 110 Hobbs u. Norton 361 Ilobbs and Walton 394 Hockraore and Bonithon 115 Hodges and Hampton 106, 162 1). Templar 312 Hodgson and Luraley 79 and Robins 439 Hodle V. Healey 208, 210 Holbeach v. Sambeach 43 Holben and Cawthorne 24 Holbrooke and Adams 439 Holeworth v. Lane 127 Holford V. Hatch 93 and St. John 280 Holiday v. Bowman 255 Holland and Bromley 278 V. Hattou 163 Holies V. Wyse 224 HoHier and P^cx 114 HoUewell and :\lerry 367 Holmes v. Bring 76 Holt u. Mill 296, 391 Homden v. Tilby 427 Honeycomb v, Waldroa 344 Hooper and Clinton 265, 266, 267 , Ex parte 30, 287 V. Rarasbottom 325, 337, 340 Hope u. Clifden, Lord 50, 52, 64 Hopkins V. Monk 162 Horn V. Baker 316, 318, 330 Horseley or Horsey and Freak 437 Horsman and Morgan 380 Horwell and Harris 8 Hough and Gaskill How V. Vigures Howard v. Harris Page 256 429, 437 15, 190, 231, 232 and Meynel 250 Howel V. Price 15, 202, 234, 250, 251, 435 V. Richards 16 and Rowth Howsrave v. Cartier 116 48 141 36 321 333, 334 128, 227 260 346 254, 295 Howse V. Chapman Hubbard and Bloxam V. Johnstone and Surtees Hubbartand Porter Hudson and Lawson and Wrightson Hughes V- Doulben and Penrhyn, Lord 236, 237 tj. Williams 151,162 Huit V. Cogan 294 Humphreys v. Humphreys 418 Hungerford and Bristol 25, 294, 297, 308, 386 V. Clay 118 V. Hungerford 235 Hunsden v. Cheney 360, 361 Hunt V. Fownes 135, 440 u. Priest 83 and Smartle and Webber 207 153 293, Huntingdon, Earl of, v. Hunting- don, Countess of 173, 175, 240, 284, 267 Huntingford and Woods Huntington v. Greenville Hurford v. Carpenter Hurle and Hartley Huson V. Hewson Hussey and White Hutchinson v. Massareene and Parker Hyde V. Foster and Sagitary 263 296 28 252, 257 91, 97 104 75 67 434 274 I. and J. 143, Ibbotson V. Rhodes lies and Cotton Ince and Goodyer Inchiquin, Earl of, v. French 360 148 26 252 Incledon v. Northcote 64 Icgledew and Harris 395 Inglis and Casborne 182, 193, 235 TABLE OF CASES CITED. XXT Ingram and Jezeph . V. Pelham Innis and Jackson Inskip and Braybroke, Lord Page 366 175, 205, 267 136, 407 Irnham v. Child Isherwood and Gartside • V. Seddon Ismoord v. Claypool Ithell V. Beane Ivy V. Gilbert Jackson v. Butler — — — , Ex parte ■ and Innes 8,9 9 218 443 306, 363, 379 46, 72, 75 325, 340 84, 85 267 . 175, 205 291, 292, 293 V. Langford 281,282,288, 289, 290 195, 206 169, 174, 267 401 96, 97 . and Wheelwright 379 Jacob LI. Suffolk, Earl of V. Thatcher V. innis V. Primate and Palmer V. Parker and Tenant V. Vernon Jacques and Eaton Jaffray and Card James and Ashenhurst V. Hales Jansen and Fleetwood Janson v. Rany Jaques v. Golightly V. Withy Jarman v. WooUoton Jason V, Eyres Jebb V. Abbett Jee and Cripps Jeffery and Vawser Jeffreys v. Reynous Jemmett and Palmer Jenkins v. Keymis Jennens and Blenkarne Jeuner v. Tracy Jennings, Ex parte V. Looks V. Moore V. Ward and Windham Jerrard v. Saunders 339 Jezeph V. Ingram Johnson and Ascough — V. Curtis 228 290 ' 93 27 128, 153, 227, 228 234 444 394 220 220 329 6, 116 401 9 169 50 337 39, 42 367 203, 204, 210 84, 214, 221 61 310, 367 6 281, 282 393 ,394, 399 328 278 136 Page 127 250 251 218 Johnston v. Swann 141 Johnstone and Hubbard 321 JoUand v. Stainbridge 393, 394 JoUiffe and Mertins 369, 370, 388 Johnson, Ex parte Johnson v. Milksop and Puckering and Shepherd Jon V. Bull Jones and Brereton V. Dwyer V. Gibbons and Goodtitle and Ileliar V. Kenricke u. Meredith V. Morgan and Roe V. Selby V. Smith V. Statham ■ V. Strafford V. Thomas V. Turberville and Vernon and Walker and Webb Jory V. Cox Juxon V, Brian 43 288, 295 326 129, 274,331, 332, 353 80 54 444, 446 191 241 179 234 3, 280, 285, 286 7 Earl of 67 392 407 169, 170 254 256, 257 111, 225 75 K. Keech v. Hall Kelly u. Bellen, Lord and Daly and Higginson Kemeys and Thomas Keymis and Jenkins Keisal V. Bennet Kendrick and Fotherg Kenebel v. Scrafton Kennedy and Burden • V. Daly Kennett and Cadogaa Kenricke and Jones Kensington, Ex parte Kent and Bond and Dunch and Newman Kentish and Sanders Kenyon t>. Sutton Kerrison v. Cole Ketilby v. Ketilby Kidd y. Rawlinson ill 81, 161,190 228 132, 355 330 148 39,42 393 311 134, 179 188, 372 365 329 444, 446 30, 31, 332 282 370 370 217 169 107 68 317,319,327 ZXTl TABLE OF CASES CITED. Page Kilmaryt;. Geery 40 Kilvington u. Gardner 6 Kinaston and Corbett 253 King and Briscoe 16 V. Bromley 10 V. Hake 50 U.King 15,179,250 The. Ftde Rex V. Withers 61, 71 Kingdome v. Boakes 394 Kings and Martin 412 Kingston v. Roper 153 Kinlock and Taylor 35 Kinnaston and Burnett 145 Kinnoul v. Duplin 252 V. Money 265 Kirby and Luther 170 Kirk V. Clark 378 Kirkham v. Smith 242, 272 Kirtland and Halliley 282, 283 Kirton's case 181 Knapp V. Williams 141, 165 Kneebine and Bennett 153 Knight V. Bampfield 155, 156 Knott, Ex parte 288, 290, 300, 301, 303, 305, 307, 339, 383, 454 Knowell and Ilarcourt 396 Knowles u, Spence 154,204 Knowlton and Burton 254, 256 Knubley and Wilson 22, 180 Kuffin and R-oberts 141 Kyuaston u. Kynaston 255 L. Lacam v. Mertins Lacon v. Briggs Lake V. Thomas Lambert v. Rogers Lancaster and Level Lane and Durnford and lloleworth Langford and Jackson 267, 272, 277 67 207, 210 106 252, 253 376 127 281, 282, 288, 289, 290 Langham and Ilaight 249 Langham and Prodgers 378 Langley v. Oxford, Karl of 401, 409 and Ramsden Langstatf u. Fenwick Langston, Ex parte . V. Olivant Langton v. Ashley and Burgh V. Tracy 135 115, 156 30 76 378 446 379 Page and 271, 272 199, 44ff 82 115 38 Lanoy v. Athol, Duke Duchess of 253, 269 Lant V. Crisp Largan v. Bowen Lascciles and Smith Lassels v. Cornwallis Latouche v. Dunsany, Lord 355, 356, 357, 383 Lavington and Floyer 10, 13, 15 Lawson V. Hudson 260 V. Stitch 141 Laycock and Shuttleworth 281,286 Lea aird Osborn 360 Leadbeater and Dobson 390 Leake and Monys 107 Leash V. Dean 377 Le Breton and Hargrave 38^ Lee and Bennett 433 - — and Hamlvn 83, 97" — and Marsh 291, 292, 293, 297, 298, 363, 385 — and Pocock 175, 264, 267 — V. Rook 185, 195, 268 — V. Vernon 109 — and Wallwyn 339, 390, 398 — V. Warner 291 Leech V. Leech 378 Leeds, Duke of, v. Munday 126, 139 Lees and Mellor Legastick v. Cowne Legh and Oswald and Shenck Le Grange v. Hamilton Le Grice i'. Finch 10 13 ' 68- 418 50 225 141 286 8 Le Hooke and Rlargrave Leicester and Foxcroft Leigh and Forrester 254, 262, 273 Leigh and Lutkins 273- Leman v. Newnham 259, 260, 418, 419 Lempriere v. Paisley 522 Le Neve v. Le Neve 349, 350, 367, 368, 393. 394 Leonard v. Baker 319^ Lever and Page 390 Leveridge v. Forty 87 Lewis and Donne 253, 254, 256 Lewis V. Freke 40 Lewis and Morgan 153 Lewis V. Nangle 171 Lickbarrow v. Mason Liebman v. Harcourt LilTord and Swannock , 176, 197, 259, 265 333 182 TABLE OF CASES CITED. SXTU Lincoln, Earl of, v. Roll Ling and Hix Lingard v. Derby Lingard v. Griffin Lingham v. Biggs Lingon V. Foley Lingood and Barnardislou Linton V. Bartlett Lister and Goodwyn and Hanibling Litchfield and Reade Littleton's case • • — and Winn Llandaff and McCarthy Lloyd and Amis V. Baldwin and Batty V. Bird and Hamilton T). Hatchett . u. Mansell > V. Thursby V. Williams Lockwood V. Ewer Lockyer v. Savage Loftus V. Swift Lomans and Weliings Lomax v. Bird and Heyward u. Hide 135,152 Page 169 247 71, 295 118 316 45 9 379 124 141 256 146 138, 142 227 91 402, 403 9 52 141 22. 67, 68 446 250, 268 67, 220 153, 435 329, 330 .245 434 327 279 Lombe u. Lombe Lombe and Steward Long V. Cloptoa Long V. Long Longman v. Tripp Longuett V. Scavven 14, 148 Longville and Conway Lonsdown and Goodtitlo Looks and Jennings Lovel's case 113, Love! and Farrant Lovel u. Lancaster Low V. Barchard and Cliarlton Lowe and Fishwick V. Morgan V. Waller Lowell and Slack Lower and Weale Lowndes v. CoUens Lowther v. Carlton and Fawcett 102, 103, 180 and Siiuttleworth 132 Lowthian v. Hassel 281 194 246 154 127 331 385 64 316 149 64 90 61 189, 190 118, 162 252, 253 9 305 442 436 222 224 42 67 367, 387 Page 108 94 34, 326 426 28 254 108 269, 273 79 130 180 170 273 247 181, 434 403 63, 64, 66 432 of 64, 65 8, 277, 372 Lucam v. Mertins Lucas V. Comerford V. Dorrien V. Seale and Williams Lucey V. Bromley Luckin V. Rushworth Lucy V. Gardener Lumley v. Hodgson Luiin V. St. John Luscomb and Penville Luther V. Kirby Lutkins u. Leigh Lutton V. Rodd Lutwich's case Lutwych V. Winford Lyddon v. Lyddon Lyne v. Willis Lyon V. Chandos, Duke Lyster v. Dolland 1? M. M'Arthur v. Seaforth, Lord 218 M'Carthy v. Llandaff 227 M'Cartney and Hewitt 91 Macclesfield, Earl of, v. Davis 324, 329 , Earl of, and Digh- tou 153 , Earl of, V. Fitton 128, 227 Maceu, Cadell 316 M'Clure V. Dunkin 23 M'Combie v. Davies 324 M'Donnel and Robinson 321 M'Ghee v. Morgan 9 Machell, Ex parte Q6 Machil V. Clark 43 Machin and Hickford 25 Mackcnsiey. Robinson 110, 112,429 Mackreth v. Symmons 305 M'Lpod y. Drummond 268,408,409 M'Namara and Purcell 9 M 'Queen v. Farquhar 376 Maddock y. Hammett 219 V. Maddock 153 V. Rumball 217 Maddocks y. Wren 151 M^iddox V. Maddox 367 ]\Iaidnian and Bell 71 Maidwell and Corbett 55, 56, 62 Mair V. Glennie 321 Claire, Ex parte 127 TABLE OF CASES CITED. Page Maitland v. Wilson 39 1 Maling and Atkinson 36, 321 Mallack v. Galton 434, 447 Maltby and Anderson 216 Mammon and Coote 367 Man's case 10, 12 Manloye v. Bale and Bruton 7. 109, 277 Manners and Stanhope 21, 88, 225, 435 Manning and Doe 105,377 and Parker 100 V. Spooner 253, , 254 Mansel and Brigstocke 72 Mansell and Floyd 204 and Lloyd 446 . V. Mansell 376 Manory and Southcoat 172,175 Mansfield, Lord,xj. Hamilton 162 Manton v. Moore 320 March V. Fowke 256 Margrave v. Le Hooke 286 Marks V. Marks 12 Marlborough, Duchess of, v. Brace 25, 288, 290, 291, 292, 307, 385, 395 Marsden v. Panshall 323 Marsh, Ex parte — V. Lee 31, 116, 329 291, 292, 293, 297, 298, 363, 385 Marshall, Ex parte Marsham and Greswold Marston and Perry Martin and Barrow and Burnell and Collins V. Kingsly u. Mowliu 131 — . V. Paxton — — — and Reynish V. Seamore • ■ . ■ and Style Martini v. Coles Masham and Greswold Mason V. Gardner V. lleurtley and Lickbarrow — and Palmer Massam v. Harding Massareene and Hutchinson Massey and Meynel Mathers and Pember Mattheson v. Hardwick Matthews v. Cartwright 1 124 3G6, 372 8, 209 206, 207 85 325 412 , 136, 208 96 61 104, 310 384 323 194 220 51 323 63 186 75 71 47 394 260 298 Page Matthews, Ex parte 321 V. Wallwyn 34, 128, 156 Mattingley, Inhabitants of, and Rex 103, 166 Mattison and Greaves 54, 55, 66 Maundrell v. Maundrell 183, 300, 305, 307, 453 Maxwell v. Montacute 7 May and Bartholomew 250, 251 , 253 and Davis 153 Mayer and Ancaster, Duke of 249, 252, 255, 259, 260, 261, 264 Mayhow and More 364, 391, 392 225 428 197 421 43 252, 254 254 251 81, 92 330 393 437 9 226 10, 13 191 139 367 138 404, 405 369, 370, 388 267, 27 2,277 108 35 321 249 13 284 51 372 197 163 145 250 47,71 254 Maynard and Nicholls Maynard and Nosworthy Mayne and Woodcock Mead V. Bandon, Earl of and Goodright and Gower V. Hide and O'Neal V. Orrery, Lord Meagham, in re Meder u. Birt Meeker v. Tanton Meeres and Heme Meers and Strutton Mellor V. Lees Meredith and Jones and Woodhouse Merry v. HoUowell Merryland and Wilkinson Merryman and Elliot Mertins v. Jolliffe and Lacam and Lucam Mestaer v. Atkins V. Gillespie Metcalf and Armitage V. Brown ' and Demainbray ■ and Randall V. Sciioley — and Wilson Metham and Buckney Meynal and Sykes Meynel v. Howard V. Massey Meyrick and Adams and Attorney General 141 and Cholmondley 49 and Heme 273 Mew and Cornish 142, 193, 234, 235, 250 283, 188, 134, TABLE OF CASES CITED. Page Middlemore v. Goodale 17 Middleton and Backhouse 45 and Bland 11 V. Middleton 252 Milborne and Doe 68 Milksop and Johnson 250 Mill and Gofton 67 and Hlern 341 and Holt 296,391 Millard's case 391, 396 Miller and Underwood 35 Mills V. Milton, Banks 41, 46, 71, 76, 400 Lord, V. Edtiworth 131, 252, Milward and Berrisford Minnethorpe and Gray Missen and Salomons Mitchell V. Bower V. Pollexfen V. Reynolds Mitford V. Featherstonhaugh Tj. Milford Mocatta v. Murgatroyd MofFatt and Forbes Mondey v. Mondey Money and Kinnoul Monk and Hopkins Monkhouse v. Bedford. ration of Montacute and Maxwell Montague and Bernard and Fairfax and Harvey 226 358 254 323 64 225 183 226 146 131, 337, 365 148 430, 432 •' 265 162 Corpo- 422, 444 7 62 207 386 Page Morgan and Doe, dem. Harman 168 . Ex parte 138 ), 335 — and Goodtitle — u. Horsman — and Jones — ■». Lewis — and Lowe — and M'Ghee — and Pearson — and Powell Montgomerie v. Bath, Marquis of 436 Monys V. Leake 107 Moor and Frazer 210 Moore V. Battle 219, 220 U.Bennett 370 . and Frere 303, 307, 448 et Ux. V. Hawkes 179 . and Jackson 310, 367 and Manton 320 U.Moore 141 V. Plymouth, Earl of 161 Mordaunt and Noys 143, 149 More V. Mayhow 364, 391, 392 Morecock v. Dickens 346, 348, 349, 355 Morecraft and Broadway 226 Moreland and Blackstoa 286, 288 Morell V. Dubost 24 Morgan and Corder 17, 18, 101 and Digby 376 299, 380 241 153 436 9 361 148 157, 183, 233 216 10, 152 279,280,281, 289, 294, 297, 371 u. Western 194,439,441 Morley v. Elways Morne v. Wilson Morony v. O'Dea Morret v. Paske Morris and Browning and Portmore Morse v. Royal Mortimer and Call Mosley v. Mosley Moss V. Charnock V. Gallimore and MuUer Mosse V. Trevanian Moth V. Atwood Mountfort, Ex parte Mountford v. Scott Moulin and Martin Moxon and Palmer Mulcarry v. Eyres Muller V. Moss Munday and Godwin 131 220 8 10 196, 438 71, 310 321 79, 160 319, 327 390 9, 10 28, 29 367 , 136,208 321 99 319, 327 61 and Leeds, Duke of 126, 139 Munden and Collet 285 Murgatroyd and Mocatta 131, 337, 365 Murray v. Harding 13 o. Palmer 232 Muschamp and Ardglass 9 Mynd and Hardwick 70, 245, 287, 403 N. Nairn v. Prowse 307 Naish and Tourville 364 Nangle and Lewis 171, 176, 197, 259, 265 Napier v. Effingham, Lady 433 ' and EffinghaiDj Lord and Lady 262 Nash V, Preston 4 XXX TABLE OF CASES CITED. Page Nathans v. Giles 326 Neal V. Attorney General 229 Needhara v. Bennet 26 Needier u. Deeble 155, 156 Nesbitt and Scott 220 r.Tredennick 109,110 Newby f. Cooper 283 Newcastle y. Cleytou 391 Newcomb and Bonham 10 Newell O.Ward 404 Newiand and Reresby 57 Newman 0. Franco 165 . V. Kent 370 U.Payne 132, 156 and Thome 152 Newnham and Leman 259, 260, 418, 419 Newport's case 378 Newsom t;. Thornton 323 Newstead u. Searle 367 Nicholls and Cheval 350 and Hardingham 364, 391, 392 V. Maynard 225 Noble and Stewart 67 Nokes V. Derby 252 Norbury c.Nnrbury 76 Norris O.Wilkinson 29, 32. 33 North and Crompton 255 Northcot and Incledon 64 Northmore and Sutherland, Countess of 9. 200 Northwlck, Lord, and Tait 67, 252 Norton and Hobbs 361 Nosworthy and Bassett 396 V. Maynard 428 • and Wood 147 Nott D.Hill 9 Novosielski v. Wakefield 199, 425 Noysu. Mordaunt 143,149 o. Gates and Proctor 209 O'Dea and Brown 108 . and Morony 10,152 Odell and Badham 155, 229, 230 Oglander and Ilarmond J 69, 176 Ogle o. Cook 169 Okeden c. Okeden 75 Olivant and Langston 76 Olney and Rex 167 Omerod v. Ilardman 74, 75 Oneal v. Mead Only r. Walker Onslow and Pope Opie r. Godojphin Orby V. Trigg Ord and Brandlyn r. Smith Orde o. Heming O'Reilly and Bell and Doran 106, Page 261 394 284 107, 108, 340 20 387, 390 203, 208 202, 210 167 232 371 81, 92 360 Ormsby and Crofton Orrery, Lord, and Mead Osborn v. Lea Osmond u. Fi'zroy 9 Ossulton, Lord, v. Yarmouth, Lord 226 Oswald V. Legh 41 8 Otto, Ex part3 128 Oughterloney v. Powis 68 Oagliton and Bagot 259, 265 Outrani and Bradshaw 439 Overton and Rightson 41 1 Owen O.Griffith 135 and Harrison 421 O.^ford, Countess of, and Cholm- ley 201 , Earl of, and Langley 401, 409 , Lord, V. Rodney, Lady 263 Oxwith o. Plummer 296,310 P. Pack and Cannon 282, 290 Packer o. Windham 145,146 Packington 0. Barrow 118 Page and Bicknell 254 V. Lever 390 Paignon and Heathcote 9 Paine and Winchester, Bishop of 195,384,385,440,441 Painter and Gardiner 105,377 Palgrave and Wingrave 48 Palk 0. Clinton, Lord 74, 197, 198, 285 Palmer o. Baker 215 o. Danby 253 V. Jackson 195, 206 V. Mason 63 o. Moxon 321 and Murray 232 -— V. "Wheeler 370, 373 TABLE OF CASES CITED, XXXI Palmes v. Danby Pansliall and Marsden Papworth and Allen Parker and Barwell and Codrington and Hoare ' V. Hutchinsoa and Jackson — — V, Manning V. Patrick and Strode ■ V. Windham Page 182, 190, 191, 244 323 155 67 82 393 67 169, 174, 267 100 324, 316 224 146 141, 142 359, 395 85, 436 275 139, 140 215 97 46 169, 263 126 264 -24 144 Paske and Morret 279, 280, 281, 289, 294, 297, 371 Parkin and Attorney General Parkins and Rancliffe Parkinson and Rees Parr, Ex parte Parratt and Doe Parry and Benson Parsons and Bowles and Cooke • V. Freeman and Zouch Partericke u. Powlet Partridge v. Fraser V. Fawlet Pasley v. Freeman and Lempriere Pate and Urmston Paterson v. Tash Patrick and Parker Pawlet and Partridge Pawletto. Attorney General 132, Paxton and Martin Payler Ex parte Payne and Newman and Smith Peach V. Phillips Peachy and Young Pearson v. Morgan V. Pulley Pegge and Doe dem. Bristowe Pelham and Ingram Pellat V. Ballard Pember v. Mathers Pemberton and Smith Penhryn, Lord, v. Hughes 236, 237 Pennery. Jemmett 337 Penson and Plunket 186 Penville v. Luscomb 180 360 322 16 323 316 144 113, 114 96 84 156 ' 379 39. 169 7 361 150, 210 161 366 396 394 227 Page Perceval and Basset 260 PerfalandDoylpy 372 Perkinson and Doe, dem. Bur- rell 160 Perkins u.Baynton 228 a. Bayntun 260,261 and Reynoldson 442, 444 V. Walker Perrie and Price Perring and Bowles Perry v. Barker and Heath V. Marston Peter v. Russell 168 6,7 134 86, 134,445 63 8, 209 337 Peterborough, Bishop of, and Boyle Pettatu. Ellis Petty V. Styward Phettlplace and Yates Philips V. Hele V. Philips Phillips and Brydges and Peach 53 246 144 61 178, 190 251,255 252 39, 169 129, 278 222 256 Phippsu. Anglesea, Earl of r. Annesley and Arundel, Lady 317, 329 V. Bath and Wells, Bishop of 82 Phyn and Bell 252 Piclierell and Aggas 210 Pickering a. Stamford, Earl of 141 Piddocka. Brown 391, 392 Pierce and Acton 191, 284 Pierpoint u. Cheney, Lord 66 Pilkington v. Stanhope V. Shaller 200 OS 291 26 9 216 371, 372 Pilling and Wright Piper and Dedo Pitt and Ardglass and Wortley Pledwell and Thomas Plumb V. Fluitt 28, 301, 336, 341, 370, 371 PlummerandOxwith 296,310 Piunketu. Penson 186 Plymouth, Earl of, and Moore 161 Earl of, and Ridout 46 Pockley v. Pockley 250 Pocock V. Lee 175, 264, 267 PoUexfen and Mitchell 225 Pomfret and Trebourgc 285 — — i— Lord, V. Windsor, Lord 64, 306 xxxu TABLE OF CASES CITED. Page Pope and Goodtitle, dem. Tay- sum 91, 116 and Haslewood 252, 273 V. Onslow 284 Popkin and Aubrey 156 Porter and Donisthorpe 244, 261,263 Porter v. Hubbart 128, 227 Portmore v. Morris 8 Portsmouth, Lord, v. Suffolk, Lady 250 Postlethwaite u, Blythe 106,397 and Reeks 209 Pote and Raw 359 Pothoniery. Dawson 3 PottsandDoe 162and Addenda, 170 Pouletu. Poulet 60 Poulton V. Wiseman 105 Povey and Edmunds 296, 363 Powel and Croft 7, J 9 and Seabourne 109 Powell V. Glover 279, 280 ——— — U.Morgan 148 U.Powell 42 Power and Drew 156 Powis and Astley 229 V. Burdett 50, 52 V. Corbet 253, 281 and Oughterloney 68 Powlet and Partericke 264 Powseley v. Blackraan 159 Preston and Nash 4 — V. Tubbin 367, 384 Price V. Fastnedge 281, 282, 295 and Hill 435, 445 and Howel 15, 202, 234, 250, 251, 435 V. Perrie 6, 7 U.Price 393 V. Williams 82 Priest and Hunt 83 Primate and Hedgeworth, or Jackson 291, 292, 293 Proctor V. Cowper, or Cooper 155, 206, 227, 232 u. Gates 209 Prodgers v. Langharn 378 Prothero and Brummell 252, 254, 255, 256 Prowser. Abingdon 61 and Nairn 307 Puckering u. Johnson 251 Puddlesbury and Thomas 115 Puiley and Pearson 150, 210 Page Purcell 0. M'Namara 9 Purchase and Cotterell 7, 13 Purefoy u. Purefoy 286 Pye u. Daubuz 25, 28, 42, 86, 308 Pye V. George 376 Q. Quarles v. Capell Quarrel and Gatty Quarrel 1 v. Beckford 249 144 82, 131,152, 153, 154 Quincey, Ex parte 330 andScrafton 343 R. Radford v. Wilson and Young ^ ^ Radnor i;. Vandebendy 393 184 182, 347, 349 Rakestraw v. Brewer 109, 199, 202 Rallison and Welden 118, 386 Ramsbottom and Hooper 325,337, 340 Ramsden :;. Langley 135 Rancliffe v. Parkins 359, 395 Rand v. Cartwright 104, 161, 168, 190 andTourle 42, 301, 336, 338 Randall u. Metcalf 51 Ranelagh and Champant 222 Ranisford and Fitzgerald 109 394 Rany and Janson Raphael v. Boehm Ravenhill u. Dansey Raw V. Pote Rawden u. Shadwell Rawlins u. Brotherson Rawlinsou and Kidd Raynes and Gordon Rayson y. Sacheverel Read and WagstaiF v. Ward Reade u. Litchfield 154 55, 63, 64, 66 359 165 46 317,319,327 48 240 391 380 256 -and Roe dem. Reade 139,161 Reddington u.Reddington 72,240 Reed and Aynsly " ■ ■ V, Ayton 190, 193 241 200 379 TABLE OF CASES CITED. XXXIU Reed 'j. Blades Page 316,317,319,330, 331 and Feiiwicke 209, 397 and Wright 417 Reeks v. Postlethwaite 209 Rees V. Parkinson 85, 436 Reeve and Bowman 254 Reeves and Hardy 207, 208, 277 o.Herne 250 and Walker 93 Remington u. Deyerall 26 Renforth and Belchier 291 , 385 Reresby v. Newland 57 Revel V. WatkinsoQ 236, 238 Rex 0. Abbott 85 V. Catherington, Inhabit- ants of 103, 166 ■ u.Chailey 167 o.Coombes 165,189 u. De la Motte 1 Q5, 189 u. Edington 166 u. Hollier 114 V. Mattingley, Inhabitants of 103 — — u. Olney V. St. Michael's, Bath, — — y. Smith 0. Tarrant, Launceston V. Tedford '5 Reynish v. Martin Reynolds and Mitchell Reynoldson v. Perkins Reynous and Jeffreys Rhodes and Ibbottsou Rich and Booth Richards v. Barton u. Borett Ex parte I and Howell . • V. Sims 166 167 166 375 166 167 61 183 442, 444 50 360 433 373 28, 32 133 16 421 Richardson and Windham 293, 298, 307 Ricks and Dike Richmond u. Taylor . and Turner 291. Rider v. Wager Ridgard and Bonney Ridout V. Dowding u. Plymouth, Earl of Rigge u. Bowater 116; Rightson u. Overton Riley and Boddum Rivers u. Derby, Earl of 407 432 294, 385 251 409 71 46 165 411 228 b7 Page Rivers and Goodall 55, 65 Rives V. Rives 234 Roach V. Wadham 263 Roberts U.Clayton 198 u. Dlxall 38 u.Kuffin 141 Robiaso. Hodgson 439 and Shermer 363 Robinson o. Davison 291, 385 and Ferey©6 262 and Fursaker 391 — o. Gee 185,250,264,266, 268, 422 u. Harrington 312, 455 u.M'Donnel 321 and Mackensie 110, 112 u.Tonge 25, 276, 312 Robson and Bayly 282 andStokoe 133,152,444 Rochfort, Earl of, and Belvidere 2o3 Roddand Lutton 247 Rodney,Lady, and Oxford, Lord 263 152 179 161 286 90 98 423 46 281 106 401 327 49 169 Roe and Archerley V. Jones dem. Reade y. Reade 139. u. Solcy 90, and Dae dem. Tubb and Doe dem. Whitfield Rogers and Farmer, dem. Earl and Gibson and Hamerton — — — and Lambert V. Skillicorne Roiston and Bucknal 317, 319, Rolfe and Emperor Roll and Lincoln, Earl of RoUeandRyall 274,316,328,329 Rolleston v. Hibbert Rook and Lee Roper and Kingston Rorke and Steel and Webb Roscarrick v. Barton Rose and Baker Rosse V. Sterling Round and Cason Rous, Lord, and Tower Rowel y. Whalley Rovvth y. Howell Royal and Morse Royse and Hamilton Ruffin, Ex parte llumball and Maddock Rambold y. Runibold c 185, 195,268 153 25 116, 117 178,181,442 153 268 288, 393, 394 252 175, 234 116 10 367, 370 332 217 107, 274 XIXIT TABLE OF CASES CITED. Page Ruscombe v. Hare 173, 239, 243 llHshworth and Luckin 108 Russell and Peter 337 V. Russell 28 . u. Smithies 118 and Stokes 161 and Strode 138,139 and Webb 101,161 Ryall y. Rolls 274, 316, 328, 329 S. Sabine and Barrell and Tempest Sacheverel and Rayson Sadler and Cook and Stanton Sagitary v. Hyde Sainsbury and Whetstone St. Albans and Colman 92 13 186 240 446 296 274 108 100 Duke of, and Drum- mond 92 St. Eloy and Serle 262 St. John and Biddulph 98, 350, 355 V. Holford 280 ■ and Lunn 130 V. Turner ^4, 206 St. Leger and Adams St. Michaels, Bath, and Rex Sale u. Crompton Salesbury and Focus Salisbury and Soley Sail and Schoole Salomons v, Nissen Sanibeach and Holbeach Samuda and Zwinger Sam well v. Wake 252. Sanders u. Deligne V. Kentish Sands and Attorney-General Sangon u. Williams Sausom v, Goode Sandys u. Sandys Sarjeson u. Cruise Saunders v. Dehew u. Drake 166 312 163 441 86 323 43 326 255 306 217 189 42 24 54, 65 238 104 222 and Jerrard 339, 393, 394, 399 Savage.i'. Carroll 432 . V. Foster 360 , and Lockyer 329, 330 Seville and Dixon 182 Page 73 430, 434 186, 187, 295 , Earl of, and Wors- 367, 384, 385 182, 193, 235 340 14, 148, 149 Schiott and Silverschildt 131, 447 Satille V. Saville Sayle v. Freeland Scarborough and Sharpe ley Scarfe and Casborne Scawen and Glynn and Longuet Scholey and Metcalf . and Scott Schoole V. Sail Scott u. Breecher V. Brest • and Cowper and Mountford V. Nesbitt V. Scholey V. Scott Tyler Scrafton and Kenebel — — V. Quincey Scurry v. Freeman Seabourne v. Powel Seaforth, Lord, and M'Arthur 188, 372 188, 372 86 258, and see Addenda 214 58, 59, 63 367 220 188, 372 273 409 134, 179 343 214, 220 109 218 Seale and Lucas Seamore and Martin Searle and Newstead Seddon and Isherwood Sedgwick and Hitchcock 426 104, 310 367 218 298, 382, 383 238 110 234 212 370, 393, 396 238 125, 139 252 82, and see Addenda 52 56, 57 and Ilinchbrooke, Lord 58, 59 Seeley and Sergesou Selby and Gaily and Jones and Stafford Senhouse v. Earl Sergeson v. Seeley Sergison, Ex parte Serle u. St. Eloy Sewell and Berney Seymour and Bennett . and Clinton Shaen and Ferrall Shadwell and Rawdcn Shafto V. Shafto Shallerand Pilkington Shalmer and Spalding Sharp and Bishop Sharpe and Clay 220 165 283, 260 93 402, 403 250, 280 17, IS, 101 TABLE OF CASES CITED. xx\f Page Sharpe v. Scarborough, Earl of 186, 187, 295 SJiarpnell v. Blake Shaw u. Evans and Williams 247, 248 24 319 8 43 350, 3G7 39, 45, 47 50 154 218 288, 363 396 155, Shearwood and Hare Shelburne v. Biddulph Sheldon v. Cox ■ V. Dormer Shenck v. Legh Shepherd u. Elliot V. Johnson u. Titley Sherley v. Fagg Sherman and Cockes, or Cox 291, 297, 309, 313, 363, 441 Shermer v. Robins 363 Shirley u. Watts 191 Shorral and Willis 118 Short and Wishall 447 Shrapnell v. Vernon 184 Shrewsbury u. Shrewsbury 239, 241 , Duke of, and Talbot 45 209 281, 286 132 419 396 131, 447 418 409 421 64, 68, 107 401 92, Shrimpton and Conway Shuttleworth v. Laycock ■ — V. Lowther Sibson V. Fletcher Siddon u. Charnells Silberschildt u. Schiott Simpson and Gatwick and Hill Sims and Richards Sitwell u. Bernard Skillicorne and Rogers Skinner v. Stacey Skip and West and Wyatt Skip with and Bovey and Daniel 133, 428, Skynner and Amhurst Slack u. Lowell Slattery and Burton Slodden and Hartshorn Small V. Wing Smallwood and Walker Smart v. Hunt Smartle u. Williams Smith and Angel • and Bayard ■ and BeatnifF — — V. Bicknell ■ ' and Dolmaa V. Evans Ex parte 116 328 437 298 439 ' 184 224 225 379 46 403, 404 207 159 83 51 350 113, 133, 152 252, 254 54, 59 127 Smith V. Guyon and Haille and Hall and Jones and Kirkham V. Lascelles and Ord V. Payne u. Pemberton and Rex V. Smith and Sparkes Page 401 326 370 5, 280, 285, 286 242, 273 115 203, 208 379 227 375 132, 320 93 and Thompson 34, 35, 36, 37, 321 and Tomlinson and Valence V. Wheel-er and Wiltshire and Wordall Smithies and Russell Smithson v. Thompson Smithwick and Dale Snatt and Archer Soame's case Sole and Stevens Soley and Roe dem. Kay • — — u. Salisbury Solley V. Gower Solly V. Whitfield Sorrel o. Carpenter Sorrell and Williams Southampton's case 409 195 404 247 328 118 290 28 89, 280, 282 251 316, 322 90, 286 441 186 170 384 131, 346 56 128 Southcoat V. Manory Southcote and Svveet Spalding V. Shalmer Span and Dewar Sparkes v. Smith Spence and Knowles Spencer v. Boyes and Wilson Spooner and Manning Spragg u. Binkes Spranger and Ballett Sprat ley and GrifTith Springfield and Williams Duke of, and Wood 56 92, Spurgeon v. Collier Spurway u. Glynn Squib V. Wyn Stacey and Skinner Stackpole and Gore Stafl'ord, Earl of, and Blakeway V, Selby c2 172, 175 388 402, 403 223 93 154, 204 104, 430, 434 62, 72 253, 254 192 193, 234 9 129, 278, 279 6, 7, 203 68 145 116 446 67 212 XXXTl TABLE OF CASES CITED. Page Stainbridge and Jalland 393, 394 Stamford, Earl of, and Picker- ing 141 Stanhope v. Manners 21, 88, 225, 435 andPilkington 200 V. Thacker 119 y. Verney, Earl of 300, 307, 336 Staniforth v. Staniforth Stanley v. Stanley Stanton v. Sadler Stapleton v. Colvile V. Conway 254, Statham and Jones Stay ward and Petty Steed V. Whitaker Steel V. Rorke Steere and Toulmin Stephens and Child Stephenson v. Hayward V. Ileathcote and Hesse Sterling and Rosse Stevens v. Dethick V. Sole Steward v. Lombe i-: and Wilkes Stewart v. Noble Stibbert and Taylor Stile and Bertue Stitch and Jjawson Stokes V. Russell Stokoe V. Robsoa Stone V. Grubham t and Sutton — — and York St'onehewer v. Thompson 54, 62 54, 56 296 255 ' 222 7 144 367 25 363, 367 186 295, 379 255 16 268 57, 64 316, 322 3a«r, 331 76 67 370 190 141 161 133, 152, 444 327 42, 86, 435, 444 167 187, 191 Story V. Windsor, Lord 364, 3S9, 390, 392 Strafford, Earl of, an'd Jones 67 Strathmore, Earl of, and Daris 311, 372 Strode v. Blackburne 339, 389, 398 — — V. Parker • I'. Russell Strulton V. Mpers 138 Stuart, Sir Simeon's case . V. Worrall Stuckville V. Dolben Style V. Martin Suffolk, Earl of, v. Green and Jacob 224 139 226 28, 308 201 447 384 220 228 Page Suffolk, Lady, and Portsmouth, Lord 250 Surteesy. Hubbard 333,334 Sutherland, Countess of, v. Northmore 9, 200 Sutton's case 116 and Bankes 243 • — and Kenyon 169 V. Stone 42, 86, 435, 444 Swann and Johnston 141 Swannock z>. Lifford 182 Sweet V. Southcote 388 Sweeting and Dyer 414 and Dyke 22 Swift and Loftus 245 Sybourne and Doe 80 Syddal and Higgon 293, 296, 393, 396 Sykes and Corvel 204 V. Meynal 145 Symes and Blackwell 282 Symmes v. Symonds 25, 186, 308 Symmons and Mackreth 305 Symonds v. Cudmore 43 and Symmes 25, 186, 308 Tabor v. Grover 147 Tahourden and Chauncey 221 Tait V. Northwick, Lord 67, 252 Talbot V. Braddil 15 and Chandos, Duke of 60, 61, 148 ■ V. Shrewsbury, Duke of 45, 71 Tancred and Gould 153, 155 Tankerville, Earl of, a»d Astley 240, 243, 252, 264 , V. Fawcet 259 Tanner and Chapman 151 V. Florence 370 Tanton and Meeker 437 Tarrant Launceston and Rex 166 Tasburgh ». Echlin Tash and Paterson Tate V. Austin ■ V. Wellings 'J'ayfor z). Baker •: — and Hawkins and Haylin V. Kinlock " ' ■ ■■ ■ and Richmond 13 323 264 217 131,363,371 291, 385 156 35 432 TABLE OF CASES CITED. XXXTU Taylor o. Stibbert ■ V, Wheeler Page 370 104, 309 132, 446 167 186 312 Tebbutt and Harvey Tedford and Rex Tempest v. Sabine Templar and Hodges Temple, EarljZ). Chandos,Ducliess of 169 Templeman and Fleetwood 43 Tenant u. Jackson 401 Terry v. Terry 76 Teynham, Lo^rd, v. Webb 58 Thacker and Stanhope 119 Thatcher and Jacob 290 Thawill and Eccles 283 Thomas and Auriol 215 ■ and Evans 118 — ;— — and Jones 392 ' V. Kemeys 148 and Lake 207,210 V. Pledweli 371, 372 V. Puddlesbury 115 . and Watts 168 Thompson and Berwick 100 V. Grant 140, 141 V. Smith 34, 35, 36, 37, 321 ■ and Smithson 290 . — and Stonehewer 187,191 Thornbrough v. Baker 146 Thome v. Newman 152 V. Thome 38, 39, 168, 190 Thornhill and Benton 328 . V. Evans 214, 226, 227 Thornton and Cooper , 97 V. Hargreaves 380 and Newsom 323 Throckmorton and Finch, Sir Moyle 99 Thunder v. Belcher 81 Thursby and Lloyd 250, 268 Thurston and Tucker 18 4 Thwaytes v. Dye 38 Thynn v. Duval 237 Tickell and Townson 70 Tickner «. Tickner 169 Tilby and Homdin 427 Tipping V. Tipping 251, 273 Titley V. Davis 285 and Shepherd 288, 363 Tomkins lu Barnet 220 Tomlinson v. Smith 409 Tonge and Robinson 25, 272, 312 Took V. Bishop of Ely 447 2 Page Tooke c. Hartley 86,445 Tooms V. Chandler 16 Topham, Ex parte 84 Toplis V. Baker 420 Topp and Davis 253 Toulmin v. Steere 363, 367 Tourvilleu. Naish 364 Tourle V. Rand 42, 301, 336, 338 Tournay v. Tournay 58, 59 Tower V. Rous, Lord 252 Townson v. Tickell 70 Tracy v. Hereford, Lady 236 and Jenner 203, 204, 210 and Langton 379 Trafford v. Ashton 45, 71 Trapand and Cormick 105 Trash v. White 420 Tream and Herbert 42 Trecothick and 131 Tredennick and Nesbitt 109, 110 Tredway v. Fotherley 103 Treswick and Watts 360 Trevanian v. Mosse 390 Trew, Ex parte 134 Tribourg v. Pomfret 285 Trigg and Orby 20 Trimleston, Lord, v. Hamill 135, 150, 154 Trimmer u. Bayne 271 Tripp and Longman 316 Troughton o. Biiikes 192,197 V. Troughton 252, 280, 282 Trueman v. Fenton 68 Tubbin and Preston 367, 384 Tucker :;. Thurston 184 . V. Wilson 153, 435 Tunstall v. Brachen 61 Turberville and Jones 407 Turner's case 146, 411 V. Crane 145 V. Richmond 291, 294, 385 and St. John 204, 206 Tutin, Ex parte 124, 405 Tweddeli v. Tweddell 262 Tweedale v. Coventry 253, 257 Twentyman v. Hart 96 Twislefon v. Griffith 9, 10 Twyne's case 315, 316, 317 Twysden andCumming 184 Tyler and Scott 409 Tynti;.Tynt 251 Tynte and Hassell 130, 422 Tyson aud Barkney 9 XXXTUI TABfcE OF CASES CITED. u. Underwood v. Curtown • V. Miller Upton V. Ferrers, Lord Urmston v. Pate Usborne v, Usborne Uton and Atkins Uvedale v. Uvedale V. Page 355 35 67, 224 16 162 5 162 195 Valence and Smith Vandebendy and Bodmin, or Radnor 182, 347, 349, 392 Vauderzee v. Aclom V. Willis 283, 53 386 367 68 278 169 13 Vane t). Barnard, Lord Vaughan v. Cowne and Phillips 129, Vawser v. Jeffery Verner v. Winstanley Verney, Earl of, and Stanhope 300, 307, 336 Vernon v. Bethell ' and Hankey and Jackson V. Jones ■ and Lee and Shrapnell 8 28 96,97 169, 170 109 184 Vigor and Attorney-General 136 Vigures and How 429, 437 w. Wade V. Wilson 220 Wadham and Roach 263 Wagstaff u. Read 391 Wainwright c. Bendloe 255 Waise V. Whitfield 254 Wake and Samwell 252, 255 Wakefield and Hacket 296, 396 Wakefield and Novosielski 199, 425 Wakerill v. Delight 91, 443 Waldron and Honeycomb 344 Walker t'. Bell 83 and Billinghurst 262 V. Burnell 316, 318 andCalist 215 V. Jones 254 and Only 394 Walker and Perkins V. Reeves — ■ V. Smallwood V. Walker 403 Waller and Lowe Wallscourt, Lord, and Aldridge 252, Wallwyn v. Lee 339 and Mathews Page 16B 93 404 7 222 255 390, 398 34, 128, 156 42,43 203 163 412 394 45,71, 237 380, 382, 383, 384 r. Dudley 256 and Garth 201, 385, 425, 440 Walsh and Beck and Hartpole Walsh V. Whitcomb W^altham and Whitlock Walton V. Hobbs Warburton v. Warburton Ward and CoUett 257, aad Jennings and Newell and Read — — and Waring Warden, Ex parte Warden and Cole Wareham v. Brown Waring v. Ward Warner, Ex parte and Hawes ' and Lee Warr v. Warr Warren and Dutch Warwell and Warwick Warwick, Countess of, and Ed- wards V. Warwick 6 404 380 257, 263 233 186 41 263 33 250 291 58 218 367 Watkins v. Astwicke V. Birch 143 104, 367 410 319 236, 238 252 Watkinson and Revel Watson c. Brickwood and Godfrey 115, 277, 289 Watts V. Creswell, Ilasewell, or Treswick 360 and Shirley 191 V. Thomas 168 Weale v. Lower 42 Webb V. Jones 256, 257 u. Rorke 116, 117 V. Russell 101, 161 and Teynham, Lord 58 Webbpr r. Hunt 153 Webster and Harnard 151 TABLE OF CASES CITED. xxxix Page Welden u. Dux Ebor. 118 V. Rallison 118, 386 Welford v. Beezeley 359 Welland and Balfour 401 Wellings v. Lomans 434 and Tate 217 AVells and Barrett 245, 362 West and Barthrop 186, 190 West V. Skip 328 Westerdell v. Dale 97 AVestern and Morrett 194, 439, 441 Weston and Barnett 297, 336, 454 Wetherell v. Collins 133, 198 , Ex parte 31 Whaley v. Cox 256 Whalley and Rowel 175, 234 Wheate and Burgess 112, 181 Wheeler and Palmer 370, 375 and Smith 404 and Taylor 104, 309 Wheelwright v. Jackson 379 Whetstone u. Saiusbury 108 Whitacre, Ex parte 139 Whitaker and Steed 367 V. Whitaker 143 Whitbread, Ex parte 29, 33 Whitcomb and Walsh 163 White y. Evans 141 V. Ewer 203 ■ V. Hawkins 79 V. Hussey 104 and Trash 420 V. White 250 and Whiting 209 Whitfield and Solly 170 and Waise 254 Whiting V. White 209 Whitlock V. Waltham 412 Wigg V. Wigg 364, 392 Wightwick and Fowler 153 Wilbraham and Bromhall 252 Wildman, Ex parte 275 Wilkes V. Bodington 300, 306, 307 ■ V. Steward 76 Wilkie and Hamborough 87 Wilkinson v. Merry land 138 and Norris 29, 32, 33 Willett V. Winnell 7 Williams and Abney 396 and Baker 165 • V. Bosanquet 93 tJ. Day 155 . and Hushes 151,152 Williams and Lloyd — V. Lucas — • and Price . • and Sangon V. Shaw and Sraartle ■ V. Sorrell Page 67, 220 28 82 42 319 , 159 128, 131, 348 V. Springfield 129, 278, 279 and Wood 436, 437 andWray 182,190 and Wynn 182, 363, 405 401 Williamson v. Curtis Willis and Chester and Lyne V. Shorral and Vanderzee V. Willis 148 432 118 283, 386 49, 53 Willoughby V. Willoughby 299, 301, 302, 303, 304, 306, 307, 333, 339, 377 Wills, Ex parte 28 Wilson V. Balfour 379 V. Darlington, Earl of 269 ■ , Ex parte V. Fielding V. Harman V. Heather V. Knubley and Maitland V. Metcalf and Morne and Radford V. Spencer and Tucker and Wade Wiltshire v. Smith Winch and Coleman V. Fenn Winchelsea's case 186 92, 160 272, 295 143 3, 36 22, 180 391 134, 197 216 393 62, 72 153, 435 220 247 281, 282, 283 215 25 , Earl of, V. Attorney- and Knapp 141) 165 General 141 Winchester, Bishop of, v. Beavor 440 , 1>. Paine 195, 384, 385,440,441 Wind and Baker Winde, Ex parte Windham v. Jennings and Packer ■ and Parker V. Richardson Windsor, Lord 7 125 281, 282 145, 146 146 293, 298, 307 Lord, and Pomfret, 64, 366 TABLE OF CASES CITED. Page Windsor, Lord, and Story 364, 389, 390, 392 Winford and Lutwych 403 Wing and Small 46 Wingrave v. Palgraye 48 Winn V. Littleton 138, 142 Winne v. Bampton 110 Winnell and WiUett 7 Winstanley and Verner 13 Winter and Bunbury 215 Winterton, Earl of, and Blount 1 96 Wiseman and Poulton 105 Wishall V. Short 447 Witherby and Clench 10 Witherington v. Banks 118 Withers and King 61, 71 Withy and Jaques 220 Wolston c. Aston 10,11 — — — — and Zouch 74 Wood and Dawson 319 V. Day 100 .■■ V. Nosworthy 147 V. Southampton, Duke of 56 V. Williams 436, 437 Woodcock V. Dorset, Duke of 50, 52 I V. Mayne 197 Woodhouse v. Meredith 139 Woods V. Huntingford 263 Woolley V. Drage 230, 277 Woolloton and Jarman 329 Wordall v. Smith 328 Worley and Hamilton 259, 260 Worrall and Stuart 201 Worsley v. Granville 48 . and Hill 183 ■ V. Scarborough, Earl of 367, 384, 385 Wortley v. Birkhead 134, 276, 291, 363, 386 Worthington and Edge 28 Wortley v. Pitt 216 Wray v. Williams 182, 190 Page Wraynam and Harwood 187 Wren and Maddocks 151 Wride v. Clark 253 Wright and Birch 79, 80 V. Pilling 291 u. Reed 417 Wrightson v. Hudson 346 Wroot and Doe, dem. Shewen 179 Wyattand Skipp 133, 437 Wylie and Bryson 316 Wymonsel v. Hawland 296 Wyn and Squib 145 Wyndam and Bamfield 255 Wynn v. Williams 182, 363, 405 Wyse and Holies 224 Y. Yardley and Drapers' Company 370 Yarmouth, Lord, andOssulton, Lord 226 Yates V. Hambly 196, 202, 203, 442 V. Phettiplace 61 Yea V. Field 100 — andHammett 215 York, Archbishop of, and Doe dem. Berkeley, Earl of 423 Buildings Company and Higgins 92, 160 V. Stone 167 Young and Barnard 217 and Fearns 133 V. Peachy 7 -. o. Radford 184 z. Zouch V. Parsons . u. Woolston Zwinger r. Samuda 126 74 326 TABLE STATUTES. EDWARD I. 13. St. 1. c. 5. Advowsons 111 HENRY VII. 4. c. 24. Fines 163 HENRY VIII. 32. c. 34. Grantees of Reversions 101 33. C.20. S.2. Treason 189 34 & 35. c. 51. s. 94. Wales 26 ELIZABETH. 13. c. 4. Crown Debtors 374 c. 5. Fraudulent Conveyance 314, 315, 316,317,319, 327, 329 s. 6. Saving to bonajide pur- chasers 315 27. c. 4. Voluntary Settlement 104, 377 s. 3. Penalty 105 s. 7. Enrolment of statutes 310 43o c. 4. Charitable use 389 JAMES I. 3. c. 8. Bail in error 163 21. c. 16. Limitation of actions 203, 205 c. 19. Bankrupt 274, 384 s. 9. Payment of judgments, &c. 25,289 s. 11. Bankrupt, Chattels 37,315, 316, 317, 319, 320, 327 s. 12. Bankrupt, Tenant in tail 42, 320, 327, 332 c. 25. Crown leases 99 CHARLES n. 12. c. 24. Testamentary guardian 410 29. c. 3. s. 1. Parol conveyance 28 s. 3. Surrender, writing 423 c. 3. s. 4. Parol agreement 8, 185, 287 s. 5. Devises of lands 140 s. 10. Execution of lands 188, 372 d x\a TABLE OF STATUTES. CHARLES II. CONTINUED. s. 13, 14, 15. Judgments 25,311,312,456 s. 18. Recognizances 311 WILLIAM AND MARY. 3.C. 14. Fraudulent devises 187,281 4 & 5. c. 16. Fraudulent mortgages 211 C.20. Judgments, doggeting 25, 311, 312, 372,455 WILLIAM III. 7 & 8. c. 25. s. 7. Parliament voting 103, 163 ANNE. 1. St. 1. c. 7. s. 5. Grants by Crown 100 2 & 3. c. 4. Registry, West Riding of Yorkshire 343, 353 4. c. 16. Attornment 78 5. c. 18. Registry, West Riding of Yorkshire 343, 352 s. 11. Registry, Judgments 352 6. c. 35. Registry, East Riding of Yorkshire, and Kingston upon-Hull 343 s. 28. Registry, &c. Judg- ments 352 7. c. 19. Infant mortgagee 119, 123, 125, 126, 133, 404 €. 20. Registry, Middlesex 342, 344, 357 s. 9, 10. Registry, Wills 351 s. 18. , Judgments 352 9. c. 5. s. 4. Parliament 103, 163 c. 14. Gaming 165 12. st.2. c. 16. Usury 213, 217, 219, 223 GEORGE L Q. c. 7. Settlement, parochial 103, 166 GEORGE XL 4. c. 10. Lunatic Mortgagee 120^ 123, 124, 127, 405 c. 28. s. 2. Ejectment, Forfeiture, Mortgagee 97, 98 s. 6. Leases, Renewals 94, 164 5. c. 25. Process in Equity 434 c. 30. s. 38. Bankrupt assignees, suits by 190 7. c. 8. Stock-jobbing 217 c. 20. s. 1. Ejectment 85, 88, 90, 386, 443 s. 2. Foreclosure, Bills of, 89, 92 3. 3. Saving clause 89, 91 8. e. 6. Registry, North Riding of Yorkshire 34S s. 17. Registry, &c. Will 351 s. 33. Registry, &c. Judg- ments 352, 357 9. c. 36. Mortmain 141, 165, 275 1 1. c. 19. s. 1 1. Attornment 78 s. 12. Ejectment, secreting 162 GEORGE IIL 4. c. 16. Infant Mortgagee 120 13. c. 51. Wales, frivolous actions 26 14. c. 79. Irish and West India inte- rest 222, 223 17. c. 26. s. 8. Annuity act 184 24. c. 53. Turnpike act, private 73 26. c. 60. Ship registry 320 34. c. 68. s. 15, 16. Ship registry 35, 37, 320 39 & 40. c. 88. s. 12. Grants by Crown 113 Infant and Lunatic trus- tees for Crown 123 46. c. 135. Bankrupt 384 47. St. 2. c. 24. Grants by Crown, Duchy of Lancaster 113 GEORGE in. CONTINUED. 53. c. 141. Annuity act 185 65. c. 192. Copyhold surrender to wills 179 57. c. 62. Local and personal act 73 GEORGE IV. 1 & 2. c. 51. Irish and West India interest, Collateral se- curity 223, and see Addenda e. 114. Lunatic Mortgagee 121, 128 TABLE OF STATUTES, sliif IRISH STATUTES. ANNE. 6. c. 20. s. 3, 4, 5. Registry act $53',. 354 GEORGE L 8. c. 2. Ejectment, Forfeiture, Mort- gagee, Landlord 98, 109, 190 GEORGE II. 7. c. 14. Foreclosure, Subpoena 434 ERRATA" ET ADDENDA. Page 82, 1. 9. Add, " But if a man has a legal mortgage, he cannot hare a receiver appointed ; he has nothing to do but to take possession. Per Lord Chancellor Eldon, Berney v. Sewell. I Jac. and Wal. 648." I. 13. Add, — " But a second mortgagee or incumbrancer may have a receiver appointed if the mortgagee in possession confesses that nothing is due, or re- fuses to accept what, according to his own demand, he states to be due. Berney v. Sewell, 1 Jae. and Wal. 647." n. (s) Add, — " Laid down as above per Lord C. Eldon, 1 Jac. and Wal. 648." 83, n. (x) Add, — " And Brooks v. Greathed, 1 Jac. and Wal. 176, 178." 157, at the end, add, — " A mortgagee in possession, without no- tice from the second mortgagee, paying over the surplus rents to the mortgagor, is not accountable for the by-gone rents, to the second mortgagee. But, after notice given him by the second mortgagee, the first mortgagee is answerable to the second. Ber- ney V. Sewell, 1 Jac. and Wal. 650." xliv ERRATA ET ADDENDA. Page 162, after line 22, add, — " If a lord of a manor mortgage the manor, and then purchase copyholds held of the manor, which are surrendered to him in fee, the lord cannot afterwards grant out those copyholds so as to sever them from the manor ; for, if his estate be considered at law, he is only tenant at will, or at most from year to year, to the mortgagee after the condition forfeited, and none but a tenant in fee can sever copyholds. And though in equity he is tenant in fee of the manor subject only to the charge, yet he can do nothing to diminish the security ; and the mortgagee has a right to the services, quit-rents, escheats, forfeitures, and other casualties. Doe dem. Gibbons, v. Pott, Doug. 710." 223, 1. 21. Add, — " But because it was doubtful whether this provision was not confined to the bonds or covenants of the mortgagors or grantors themselves in such securities, wherefore it has been enacted by the 1 and 2 Geo. 4. c. 51, that the bonds and covenants of third persons, which have been, or which here- after may be given in Great Britain or elsewhere, as a collateral security for the repayment of any money bond fide advanced on mortgage or security of lands or property in Ireland or the West Indies, shall be good and ^ectual, provided that no more than six per cent, per annum be received or taken on any such mortgages, bonds, or securities." 258, after 1. 25, add, — " But if one mortgages, and then devises the mortgaged estate, and also all his personal estate to one and dies, and afterwards the devisee dies without having paid off the mortgage, and intestate, the heir of the devisee will have no right to have the estate exonerated out of the assets of the mortgagor, come to the personal representatives of the devisee, but must take the land cum onere. Scott v. Beacher, 5 Mad. 96." 288, u. (o). Instead of—" See ante. 1 1 Ves." read " See note (&), 11 Ves." 303, n. (c). Add—" S. C. Appendix, No. 1." 306, 1. 26. For " Therefore," read " So." 307, n.(n), Add—" S. C. Appendix, No. 1." 312, n. (0, Add—" S. C. Appendix No. 2." 319, 1. 3 from bottom, for—" claims these in deed ; are" read " claims — These indeed are." PRACTICAL TREATISE ON THE LAW OF MORTGAGES. CHAPTER I. OF A MORTGAGE. tf HERE one conveys land to another to hold to him in fee, or for any other determinate period, with a proviso that the conveyance shall be void, or that the grantee shall reconvey if the grantor pays to the grantee a certain sum of money on a day agreed upon, such conveyance is called a mortgage, (a) And according to Glanville, (b) and Spelman, (c) it is so called, because between the time of making the conveyance and the time appointed for payment of the money, the grantee by the old law re- ceived the rents of the estate to his own use, that is, the rents were dead, or lost to the grantor or mortgagor. (a) Litt. sec. SS^. (c) Gloss, sub voce mortuum {b) Book 10. ch. 6. Beame's vadium. Glanv. 252,253. B 2 OF A MORTGAGE. [ChAP. I. As to him, therefore, the security was from the first a mortuum vadium, mortgage or dead pledge. Which mode of accounting for the name of mortgage I con- ceive to be better than that adopted or given to us by Littleton, viz. that after the condition forfeited the land was lost or dead to the mortgagor, {d) Not only, as it is directly opposed to vivum vadium, which is a security in which the rents never die, that is, in which the rents are continually paying off or diminishing the debt ; (e) but because it opens to us more immediately the intention, which a mortgage was meant to effectuate. For I think we may very fairly attribute the introduction of mort- gages to the doubt which formerly prevailed respecting the legality of taking interest. Which being altogether forbidden by the law, this conditional alienation was intro- duced, not so much with a view that the property might be lost to the mortgagor if he failed to repay the money ; but in order that the mortgagee might receive the rents in the mean time to his own use in lieu of what he would otherwise have received under the name of interest or usury. Therefore Glanville informs us that this species of security was considered usurious. (/) And being so considered, the courts of law, it is natural to suppose, would not assist a mortgagor, who was party to the usu- rious contract after the condition forfeited; but left him to all the legal consequences of his neglect. And even when the statute of the 37 Hen. VIII. c. 9. had made the takins: of moderate interest lawful, the courts of law could not look upon mortgages in any other light than that of conditional alienations, without at the same time reflecting upon their former decisions. But then equity interposed; and, reverting to the intention of the parties, which was certainly no more than to give a security for (J) Sec. 332. (/) Book 10. ch. 8. Beame's (e) Co. Litt. 205. a. Glanv. 257, 258. Chap. I.] of a mortgage. 3 the loan, with interest in the mean time, held, that the mortgagor should be at liberty to redeem his lands, even after the condition forfeited, upon payment of principal, interest, and costs, (g) A mortgage, pledge, and lien, have been thus distin- guished. A mortgage is a pledge to become an absolute interest, if not redeemed at a certain lime. But a de- posit of personal effects not to be taken back but on pay- ment of a certain sum, if by express stipulation, it is a pledge ; if by the course of trade, it is a lien. For a lien does not arise out of any contract whatsoever; but out of a right to hold property till the party claiming the lien has been paid for the operation he performs. A per- son having the right of lien has no right to sell the goods: but a person holding a pledge has, if the money be not repaid according to the agreement. That being on ac- count of their perishable- nature, and unproductiveness, the only way of repaying himself. And the contract to be inferred on such occasions being to the following effect : — " If I (the borrower) repay the money, you must redeliver the goods : but if I fail to repay it, you may use the security I have left to repay yourself." (h) To constitute a valid mortgage, there must be a mort- gagor, a mortgagee, and a thing to be mortgaged. Of the mortgagor and tnortgagee. — The same persons may sustain the characters of mortgagor ov mortgagee, as may sell or purchase the several sorts of property in- tended to be mortgaged. Therefore, aliens, corpora- tions, infants, idiots, lunatics, persons deaf dumb and blind a nativitate, persons under duress, persons attainted of treason, felony, or praemunire, papists, and feme covertSj have the same capacity of being mortgagors or {g) 3 Blackst. Com. 434, 435. 645. Pothonier v, Dawson, 1 Holt (Ji) Jones V. Smith, 2 Ves. jun. 385. 378. Wilson v. Heather, 5 Taunt. b2 '4 OF A MORTGAGE. [ChAP. I. moHgag'ces, as they have of being vendors or purchasers, and labour under the same disabihties ; a mortgage being most truly a sale pro tanto. Of things to be mortgaged. — There is no species of property, real or personal,, corporeal or incorporeal^ vested or contingent, in possession or expectancy, of inheritance or not of inheritance, legal or equitable, which may be granted or conveyed away, that may not be granted or made over for the purpose of a mortgage, (i) An estate at will is determined by being assigned ; consequently, cannot be mortgaged. A mortgage may be made by any species of deed or assurance that will serve to convey or charge the pro- perty intended to be mortgaged; whether it be a convey- ance or assurance deriving its effect from the common law or statute of uses, and whether perfected in pais, or by matter of record. A mortgage may be made in fee, in tail, for life, or for years, (k) The greatest division of mortgages is into mortgages in fee, and mortgages for years. As long terms for years are of later original, it is no great presumption to sup- pose mortgages in fee were at first more common : but it having formerly been a doubt whether, by taking such estate in fee, it did not become liable to the wife's dower, and other incumbrances of the mortgagee, (/) it there- fore became usual to grant only for a long term of years by way of mortgage ; which was thought to have this further advantage, that on the death of the mortgagee tlie estate became vested in the personal representatives who have the better claim to the money lent. (w2j But after- wards when the doubts occasioned by taking the estate in (0 GlanT. Lib. 10. c. 6. 190. (A) Lit. sec. 333. (m) 2 Blackst. Com. 158. (/) Nash V. Preston, Cio. Car. Chap. I.] ^^ a mortgage. 5 fee, as to its becoming liable to the incumbmnces of the mortgagee, were removed by our courts of equity ; when it was settled that the claim of the personal representative to receive the money lent should in all cases be preferred ; and when the inconvenience arising from the estate falling into the hands of an infant heir, an idiot, or a lunatic, were removed by allowing them to reconvey on payment of the mortgage money ; then mortgages in fee became more usual ; and the reason given for their preference is, because they take the estate completely out of the mort- gagor. The convenience of this practice is evinced in those cases where the equity of redemption is foreclosed. On the other hand, when a mortgage is taken by a grant for years, in order to remedy the only inconvenience at- tending it, it is a very common practice to insert a cove- nant from the mortgagor, that he will on default made in payment of the mortgage money, according to the con- dition, do all acts for absolutely assuring the fee to the mortgagee, (ti) The exposition of which covenant given by Holt, C. J. is, that the further assurance must be ab- solute ; but that it does not oblige tiie mortgagor to re- lease his equity of redemption, nor is a warranty neces- sary in such further assurance, (o) The proviso for redemption in mortgages is, that on payment of the money borrowed with interest the estate granted shall be void ; or that the mortgagee shall recon- vey to the mortgagor, or as he shall appoint. Either mode is equally good; only, considering how seldom the money is paid on the day appointed, the latter seems preferable. The time for payment of the money is by the condition generally limited to a year after the date of the mortgage : but it may be for a greater or a less space of time. If the («) Bac. Abr. tit. Mortgage, (u) Atkins v. Uton, Conibeib. (A.) 633. 318. 1 Lord Rayin. 36. 6 OF A MORTGAGE. [ChAP. I. money be not paid at the day appointed, the condition is gone, and the interest of the mortgagee in the lands pledged becomes absolute at law. He may from thence- forth hold it as his own ; may mortgage, sell, devise, and exercise over it every power of ownership. And it shall pass by the same legal conveyances, and in the same manner precisely, as if it had been his own entire pur- chase. But equity, considering the mortgage as a pledge only for the debt and interest, will relieve against this forfeiture at law; and will allow the mortgagor to re- deem, if he applies within any reasonable time. This reasonable advantage allowed to mortgagors is called an equity of redemption. And so jealous are the courts of equity of their jurisdiction in this behalf that they will not suffer the equity of redemption to be re- stricted by any proviso or agreement to the contrary. For a man shall not have interest for his money, and a collateral advantage besides for the loan of it ; or clog the redemption with any bye agreement; since this would be to let in all manner of extortion and usury, (p) Thus a proviso to redeem during the life of the mort- gagor only, (q) or during the joint lives of mortgagor and mortgagee only, (r) and a proviso to restrain the right of redemption to the mortgagor and his heirs male, (s) have been set aside in favour of those entitled to redeem. And so a proviso that if the money be not paid by a cer- tain time, that the conveyance shall become absolute ; (t) or shall become absolute on payment of a further sum of (p) Jennings v. Ward, 2 Vern. Rep. 55. 520. (*) Howard v. Harris, 1 Vern. (5) Jason 0. Eyres, 2 Cha. Ca. 33. 190. S. C. 2 Ch. Ca. 147.— 33. 2 Freera. 69. S. C. Kilving- 2 Freem. 86. S. C. Anou. 2 Freem. ton V. Gardner, cited 1 Vern. 192. 84. Price V. Perrie, 2 Freem. 258. (0 Bowen v. Edwards, 1 Cha. (r) Spurgeon v. Collier, 1 Eden's Rep. 222. Chap. I.l of a mortgage. 7 money by the mortgagee ; (i*) will not be allowed in equity. Much less shall an agreement entered into between third persons, as the creditors of a mortgagor and the mort- gagee, or his assignees, to restrain the right of redemp- tion, be valid, {w) The proviso for redemption is generally contained in the mortgage deed : but the estate will be equally redeemable if the mortgage be made by an absolute conveyance with a defeazance or agreement for redemption in a se- parate deed, (x) The latter mode, however, is discoun- tenanced by the Courts. In one case Lord Talbot de- clared that he would discourage the practice as much as possible. That to him it always appeared with a face of fraud ; for the defeazance might be lost, and then an ab- solute conveyance be set up. (3/) And in another case. Lord Hardwicke is made to say that the not inserting the clause in the deed was an imposition on the mortgagor, (z) And the truth of these declarations is fully evinced by the above cited case of Spurgeon v. Collier, where the mort- gagee, to prevent the redemption, corrupted the son to rob the father of the deed of defeazance, and to put it into his hands]; and then procured him to be imprisoned, first in a gaol, and then in a private house, to prevent his looking into his affairs. Where a mortgage is made by an absolute conveyance, and a defeazance prepared at the same time, but which the mortgagee afterwards refuses to execute ; (a) or if, upon an agreement to mortgage, the mortgagee pre- (w) Willett V. Wiiinell, 1 Vern. (7/) Cottrell v. Purchase, Cases 488. 1 Eq. Ca. Abr. 313. pi. 14. temp. Talb. 64. S. C. Price v. Perrie, 2 Freem. (z) Baker ;;. Wind, iVes. 161. 258. («) Maxwell v. Montacute, Cha. (to) Exton V. Greaves, 1 Vern. Prec. 52G. Walker v. Walker, 2 138. Atk.99. Young r. Peachy, 2 Atk. (*) Manlovcy. Bale and Bruton, 25S. Jones v. Statham, 3 Atk. 2 Vern. 84. Croft v. Powell, Com. 388. Cha. Prec. 103, 104. Rep. 603. 8 OF A MORTGAGE. [ChAP. L pared an absolatc conveyance without a proviso for re- demption ; (h) parol evidence will be admissible to shew the intention of the parties on account of the fraud. But a parol agreement^ or a mere verbal declaration that a conveyance seemingly absolute is intended for a mortgage only, will not, since the statute of frauds, be of any avail, (c) But if there be any other evidence to ex- plain the nature of the transaction, it will be very readily admitted. As where an absolute conveyance is made for such a sum of money, and the person to whom it is made, instead of entering and receiving the profits, demands in- terest for his money, and has it paid him. And a letter has been held a sufficient agreement in writing, if it were signed by the party to take it out of the statute, (d) So if the mortgagee gets an absolute deed, but suffers pos- session to go sometime contrary to it, it will again make it but a mortgage, (e) And a grantee's having exhibited a bill against the grantor for the land, or the money, is proof that the conveyance was intended for a mort- gage. (/) So where the mortgagor was prevailed upon to sign an absolute conveyance without any note of de- feazance, relying on the promise of the mortgagee, and his agent, that he might redeem on payment, which was admitted by the mortgagee in his answer, the decree was for a redemption with costs against the mortgagee, (g) (b) 3Atk. 389. (d) Prec. Cha. 526. Foxcroft (c) 29 Car. 2. c. 3. Perry v. v. Leicester, CoUe's P. C. 108. Marston, 2 Bro. C. C. 397. The 2Vern. 456. Gilb. Rep. 4. 11. case of Copleston v. Boxwill, 1 Vernon v. Bethell, 2 Eden's Rep. Cha. Ca. 1. was before the statute. 110. SSalk. 241. Hare v. Shearwood, (e) Harris v. Ilorwell, Gilb- 3 Bro. C, C. 168. Powell on Mort- Rep. 11. ga£;es, 156. and see the cases cited (/) Bowen v. Edwards, 1 Cha. in tiie last note but one; and see Rep. 222. Irnham v. Child, 1 Bro. C. C. 92. (g) England v. Codriogton, 1 ^ ortmorey.Morris3 4Bro.C.C.219. Eden's Rep. 169. Chap. I.] of a mortgage. 9 So a conveyance seemingly absolute, but expressed to be made in consideration of money lenl or borrowed, or for securing the payment of money, cannot be other than a security. Or if there be written evidence that the agree- ment stated by the deed is incorrect, then parol evidence will be admitted to shew the real intention of the par- ties, {h) Inadequacy of consideration too has been held sufficient to relieve against the letter of an absolute con- veyance, if there be any other circumstance to aid the admission, as the relative situation of the parties as trustee and ceslui que trust, (i) the grantor's being an heir, dealing for an expectant interest in the lifetime of his father ; (Jc) the weakness of the grantor's understand- ing, (/) or his distress, (m) or if there be any gross fraud on the part of the grantee, (n) But inadequacy of con- sideration alone is not a ground for setting aside a con- veyance, (o) And in allxases where a conveyance is set aside on any of the grounds abovementioned, it is treated as a mortgage; and the grantor as a mortgagor coming into equity to redeem ; so that the money really paid by the grantee must be repaid with interest, and all monies (K) Cripps V. Jee, 4 Bro. Cha. Ca. 472. Irnhatn v. Child, 1 Bro. C. C. 92. (0 Heme v. Meeres, 1 Vern. 465. S. C. 2 Bro. C. C. 176. n. Purcell V. M'Namara, 14Ves. 91. {k) Nott V. Hill, 1 Vern. 167. 2 Vern. 27. Gwynne v. Ileaton, 1 Bro. C. C. 1. Twisleton v. Grif- fith, 1 P. Wms. 310. Barkney V. Tyson, 2 Vent. 359. S. C. 2 Vern. 14. Barnardiston v. Lin- good, 2Atk. 133. (0 Gartside v. Isherwood, 1 Bro. C. C. 558. Clarkson v. Han- way, 2 P. Wms. 203. PurceU v. M'Namara, 14 Ves. 91. Osmond u. Fitzroy, 3 P. Wms. 129. (m) Heathcote v. Paignon, 2 Bro. C. C. 167. Purcell v. M'Namara, 14 Ves. 91. Sutherland v. North- more, Dick. 56. (n) Ardglass v. Muschamp, 1 Vern. 237. Ardglass v. Pitt, ibid. 239. (o) Batty 0. Lloyd, 1 Vern. 141. Griffith V. Spratley, 2 Bro. Cha. Ca. 179. n. Mac Ghee v. Morgan, 2Scho. and Lef. 395. n. Low u. Barchard, 8 Ves. 133. Moth v. Atwood, 5 Ves. 845. 10 OF A MORTGAGE. [ClIAP. I. which he may have paid for insurance must also be repaid with interest from the time of payment, and the expence of the deeds ; and the grantee will, unless his conduct be such as to require a difference, be entitled to his full costs. And in the mean time the deeds will remain a security for such payments, (p) And in all these cases it is necessary that the grantor should pursue his remedy within a rea- sonable time, or he will lose his remedy by his acqui- escence. Twenty years, and in some cases less time, has been holden a sufficient bar. (q) The principle upon which equity relieves the mortgagor after the condition forfeited is this, that it considers the transaction as a security only for the payment of money. (r) And, therefore, where it has been made to appear that at the time of the original contract the parties had some further view, as, if the money was not paid, to settle the estate in a particular manner, or to benefit third persons, or the mortgagor intended the mortgagee a kindness ; the Court has refused to interfere, (s) So a devise to one, if a certain sum is not paid off ac- cording to a covenant, in the opinion of Lord Hale was an absolute devise if the money be not paid, (t) a devise always implying a bounty. Though where a testator devised to his daughter in fee, and if his son paid her 50/. (p) Twisleton v. Griffith, 1 P. (r) Clench v. Witherby, Rep. Wms. 310. Gwynne v. Heaton, temp. Finch 376. 1 Bro. Cha. Ca. 1. and see the («) Bonham v. Newcomb, 2 cases cited in notes ik Im and n. Vent. 364. S. C. 1 Vern. 7. 214. supra. 232. S. C. 2 Cha. Ca. 58. 159. {q) Morony v. O'Dea, 1 Ball. 2 Freem. 67. King v. Bromley, and Beat. 109. Gregory t). Gregory, 2 Eq. Ca. Abr. 595. See also Coop. Cha. Ca. 201. Morse o. 1 Vern. 193. at the bottom of the Royal, 12 Ves. 355. 2d Point. — page. Moth V. Atwood, 5 Ves. 845.— (0 Wolstaa v. Aston, Hard. Melloru. Lees, 2 Atk. 494. Floyer 511. Entered with an adjornatur. V. Lavington, 1 P. Wms. 268. Sir T. Man's case, 2 Frecra. 206. Chap. I.] of a mortgage. 11 lie was to have the land, the son made default in payment on the day appointed. It was decreed in favour of the son. Finch, Chancellor, taking it in the nature of a securitj/. Yet it was objected that it was a contingent devise to the son on payment. And the reporter adds, quaere, sibene. (u) Mr. Viner in his Abridgment, after citing the case of Bland v. Middleton, and noticing the reporter's quaere thereon, observes, that it was said by Lord Macclesfield, that in all cases, where there is a measuring cast, (as he termed it,) between an executor and a heir, the latter shall in equity have the preference. And why (he asks) may it not be the same between a heir and a devisee ? To this it may be replied, that in those cases where there is a measuring cast, the testator, either by silence or ambiguity, has left it to the law to determine which shall have the preference ; but where the devisee and heir are both expressly mentioned, it shews that both their interests have been contemplated ; and the measuring cast, if any, between them is in favour of the prior de- visee ; for the testator, by placing him first in the devise, has evidently shewn him a preference. And that the de- vise to the heir would at this day be construed conditional according to the opinion of Hale in Wolstan v. Dunstan may be further gathered from the decree of the Master of the Rolls in a later case. Where a testator had devised lands to his wife for life, remainder to his daughter and her heirs ; but directed that if his son paid to his daughter 500Z. after his wife's death, the lands should go to him and his heirs. On a bill brought by the daughter to compel the son to pay this 600Z. within a reasonable time, or be foreclosed. Sir Joseph Jekyll, indeed, so far likened the case to a mortgage that he decreed the defendant should pay interest for the 500Z. and was entitled to an account (m) Bland v. Middleton, 2 Ch. pi. 12. and margin. Ca. 1. Vin. Abr. ^;t. Devise (A.b.) 12 OF A MORTGAGE. [ClIAP. I. of the rents and profits ; that it was the case of every mortgagee, and tliat there might be a foreclosure : but he goes on to observe, that the defendant had not his Hfe to pay the money in, but only a reasonable time after the mother's death. Which shews that he drew a very evi- dent distinction between a mortgage and this devise, {x) And in a case in Chancery, which seems to have been very fully considered, where a testator devised to his wife for life, and after her death to his son D. and his heirs, provided that if N. (the testator's second son,) did, within three months after the wife's death, pay to D. 500/. then the lands should come to N. and his heirs. And N. died in the wife's lifetime. Though the heir of N. having brought his bill within three months after the wife's death, was admitted to perform the condition ; yet the ground of the determination was on the descendible quality of the condition. And it was neither urged by the counsel, nor noticed in the decision, that the inte- rest of D. was in nature of a security, {y) But upon this point Sir Thomas Mann's {z) case seems decisive. A testator devised lands to his eldest daughter, paying 100/. to the second daughter; and, if the eldest daughter did not pay by such a day, then he devised the lands to the second daughter. It was rCvSolved this was not in nature of a mortgage to be redeemable after the time of payment was over, but that the eldest daughter not paying at the time appointed, the second daughter should have the land, and the eldest had no relief. Again, as equity relieves the mortgagor after the condition forfeited, on the ground that it considers the transaction as a loan only, it has refused its aid where it can be satisfied that a conveyance, when originally made, (x) Dunscomb y. Dunsconib, 486. S. C. 10 Mod. 419. Moscley 130. (=) 2 Freem. 206. ( j/) Marks u. Mark?, CLu. Free. Chap. I.] of a mortgage. IS was an absolute conveyance, subject only to an agreement enabling the person making it to repurchase within a limited time. Whether such conveyance be a release of the equity of redemption, after a mortg-age (a) or an abso- lute conveyance in the first instance, subject only to the agreement to repurchase, (b) So that wherever there is a clause or provision to repurchase, the condition must be strictly performed. The grantee's having paid the full value for the estate, having had uninterrupted possession for a length of time, the money to be paid for repurchase being the amount of the purchase-money, or a fair consideration for the im- provement likely to take place in the estate by its havings been in the grantee's hands, and the power of repurchas- ing being left to the option of the grantor, are the best proofs that a conveyance is intended to be a conditional purchase. But the want of any of these circumstances is by no means decisive against the conveyance, as is frequently evinced in annuity transactions, where the clause for repurchase being at an advance, has notwithstanding been held good, (c) Lord Hardwicke, however, has expressed himself somewhat against clauses for repurchase : " There ^' is a distinction," says his lordship, '"in the nature of *' the transaction, between a power of redeeming and " of repurchasing, obtained by usage, which governs the "^ sense of words. But it is well known that the Court (a) Cotterel v. Purchase, Ca. 494. Tasburgh v. Echlin, Bro. P. Temp. Tab. 61. Eudsworth v. C. fol. ed. vol. 4. 142. 8vo. ed. Griffith, 15 Vin. Abr. 468. pi. S. vol. 2, 265. Goodman v. Grier- 2 Eq.Ca. Ab. 595. pi. 6. 1 Brown's son. 2 Bali and Beat. 274. Pari. Ca. fol. ed. 149. 8vo ed. (c) Murray o. Harding, 2 Black. 6th vol. 184. 859. S. C. 3 Wils. 390. Verner (6) Barrel! v. Sabine, 1 Vern. i'. Winstanley, 2Scho. & Lef. 393. 268. FJoyer v. Lavington, 1 P. Metcalf x». Brown, 5 Price 590. Wms. 268. Mellor v. Lees, 2 Atk. 14 OF A MORTGAGE. [CllAP. I. " leans extremely against contracts of this kind, where " the liberty of repurchasing is made at the same time *' concomitant with the grant, as it must be considered in *' this case, being part of the same transaction ; the Court " going very unwillingly into that distinction, and endea- '' vouring, if possible, to bring them to be cases of re- " demption. Although it be a different thing where the " contract for liberty to repurchase is after a man has " been some time in possession of an estate, and acting " as owner under a purchase." {d) In a case which arose in Ireland, where the practice is on a bill of foreclosure, always to decree a sale, the cir- cumstances were, that A. having lands subject to a por- tion of 1000/. charged on them in favour of B., conveyed 'to trustees for B., in lieu and satisfaction of the said sum of 1000/., subject to redemption if he should within ten years pay the said 1000^. ; there being neither bond nor covenant for payment. Manners, Chancellor, held that as the grantee would be without remedy if the sale did not produce sufficient to pay the lOOOZ. and costs ; for he could not proceed on his covenant or bond, there being none, nor upon the implied assumpsit, for the convey- ance had been taken, not as a security, but expressly in lieu and satisfaction of the portion of 1000/. ; that the deed must be held a conditional sale ; and the time for payment being elapsed, the grantor could have no relief, (e) There are instances of mortgages made with a proviso for redemption on a certain day in any year, as on Mi- chaelmas day next ensuing, or any subsequent Michael- mas-day, with an agreement that the mortgagee shall till payment receive the rents in lieu of interest, but without any covenant for payment. So that the mortgagee has (rf) Longuet v. Scaweii, 1 Ves. (. King, 2 Cro. 281. note to Co. Lit. 384 (a). Urm- ((/) That such covenants are ston v. Pate, Chan. 1 Nov. 1794. good, see Howell v. Richards, 11 stated in Sugd. on Vend, and Pur. East. 633. Hesse u. Stevenson, 388, 4th ed. and 4 Cru. Dig. 90, 3 Bos. & Pull. 566. s. 64. Chap. I.] ow a mortgage. 17 tent by paying off the money. Where the mortgagee has power, in default of payment, to sell, or the security is made by a conveyance upon trust to sell, as hereafter mentioned, there is not the same necessity for absolute covenants ; nor does it seem reasonable that the borrower of money should enter into them, as the purchaser under those deeds will be entitled to the benefit of those cove- nants. As a subsequent purchaser may, in the course of the transmission of title, take advantage of the covenants of the prior vendors ; (q) and the borrower of the money in such case, after a sale, will become only a vendor in the link of the title. Of course these observations cannot apply to those cases where the borrower joins in the sale, and enters into a fresh set of more restrictive covenants. It is very much the practice in modern times to insert in the mortgage-deed a proviso, that if the money shall not be paid at the day appointed, it shall be lawful for the mortgagee to sell the estate, and out of the money arising by the sale to deduct his mortgage-money and interest, and the expenses of the sale. Where, from the circum- stances of the mortgagor, there is any reason to suspect that the mortgagee will be put to any trouble or expense in recovering his mortgage-money, the insertion of such a clause seems highly adviseable. And whatever doubts might have been formerly entertained with respect to such a clause, (r) yet its validity is now fully established, (s) But while the doubt remained, a method of conveyance (q) Middlemore v. Goodale, 1 to 10. 1 East. 294. Roll. Abr. 521. (K.) pi. 6. Cro. (s) Corder u, Morgan, 18 Ves. Car. 503, 505. Sir Wm. Jones, 344. Clay v. Siiarpe and Others, 406. Vin. Abr. Covenant, K. pi. Cha. Mich. Term, 1802. IS Ves. 6. Butter's note to Co. Lit. 384, 34G, note ; stated also in the Ap- a. Sugd. on Vend, and Pur. 453, pendix to Mr. Sugden's Law of 4th edit. Vend. & Pur. page 34. (r) See Powell on Mortgages, 14 18 OF A MORTGAGE. [ChAP. I. was invented, (<) which is still very frequently adopted. The tnode last alluded to is effected by a conveyance to some third person, in trust for the borrower, till a certain day ; when, if he pay the money lent and interest, then upon trust, to reconvey the estate to him and his repre- sentatives, or as they shall appoint ; but if he make default in payment of the money on the day appointed, then upon trust to sell the estate; and out of the monies arising by sale, in the first place to deduct the expenses of the sale, then to pay the lender of the money the money advanced and interest, and to pay the ultimate surplus of the trust-money (if any) to the borrower or his repre- sentatives. In eitber case, whether the sale be to be made by the mortgagee after default, as in the first instance, or by the trustee, as in the last of the above instances, there should be a declaration that their receipts shall be sufficient dis- charges for the purchase-money. And in both cases it is usual to insert a covenant from the borrower that he will join in sales ; but with a proviso that his joining shall be for the satisfaction only of the purchaser, and not for the security of the title. The construction of which covenant and proviso will appear from the two cases next mentioned, in both of which they were inserted. In Clay v. Sharpe {u) where the purchaser brought his bfll against the trustee and mortgagor to compel the mortgagor to join, the Court dis- missed the bill against the mortgagor ; and in Corder v. Morgan (x) the Court decreed a specific performance with- out the joining of the mortgagor against the purchaser. But in neither case does it appear that the mortgagee had requested the mortgagor to join, so that by the rules of equity the mortgagee under the power to sell, coupled with (0 See 3 Barton's Elements of (u) 18Ves. 346, note. ConyeyanciDg, p. 348, 349, 1st edit. (ar) 18 Ves. 344. 1 Chap. I ] of x mortgage: 19 the power to give an effectual discharge for the purchase money, could make a good title to the purchaser without the mortgagor's joining. But it should seem that upon a bill filed by the mortgagee, or trustee for sale, against the mort- gagor to compel him to join, the Court would, upon the force of the covenant, order the mortgagor to join in a sale; and, if so, the effect of the proviso seems to make the mort- gagor's joining optional with the mortgagee or trustee. The proviso that the mortgagor's joining shall not be re- quisite to perfect the title is inserted in order to throw no impediment in the way of a sale, and to answer the pur- chaser's objection should he insist on the mortgagor's joining; but can in no way curtail the force of the cove- nant entered into with the mortgagee or trustee. With- out such a construction, the covenant to join would be of no effect ; but, with it both the covenant and proviso stand well together. But, in all cases of a sale by a mortgagee under a power, care should be taken that the conveyance from him be made without any exception of the equity of re- demption, or else the estate will remain redeemable in the hands of the intended purchaser. Thus, where a mort- gagee having power in default of payment to mortgage or absolutely sell the lands free from redemption, entered into articles of agreement for the sale of the estate, and afterwards conveyed the same to the purclmscr, in which articles and conveyance the defeazance, which was by a separate deed, was mentioned and excepted, though it was proved that the mortgagor was privy and consenting to the agreement for sale ; yet it was resolved by the Court that the estate was redeemable, (j/) The mode above adverted to of vesting the estate in the first instance in trustees to sell we find, in the opinion of the late Mr. Bradley, was proper to be adopted where the (3/) Croft V. Powell and Others, Com. Rep. 603. c2 20 OF A MORTCxAGE. j^CilAP. I- money lent was near to the value of the lands, only that he recommends the trust to be either by jnortgage or sale to raise the money and interest. (:;) It seems that an agreement that in case the estate be to be sold that the mortgagee shall have the right of pre- emption is good. This, though not absolutely decided, is tacitly admitted by the case of Orby v. Trigg, (a) There it was decided against the defendant, the mortgagee : but it must liave been on the ground of fraud, for it appeared that the mortgagee had got hold of the counterpart of the mortgage, that he had frequently refused to give a copy of it to the plaintiff, insisting only on his principal money and interest till after the estate was sold, and that neither the plaintiff nor purchaser knew any thing of the agree- ment. Upon principle there can be no objection to an agreement for pre-emption. It is not like the case of clogging the redemption with a bye-agreement. The mortgagor has equal liberty of redeeming as if tiiere had been no such agreement ; and he is not obliged to sell to the mortgagee for a less sum than he can get elsewhere. The method of proceeding to a sale where there is a right of pre-emption is very clearly set forth in Dyer. A lease was made containing a proviso that if the lessees or their executors be disposed to sell and alien the term, that the lessor should have the first offer or advancement, he giving therefore as another would give. The report has it thus : — " And then it was moved besides. Whether *' the lessees when they are disposed to sell the term, and *' come first to the lessor according to the condition, are " obliged by the law at first to say to the lessor, ' Sir, will *' you please to have the term ? for I. S. will give a hun- *' dred pounds for it.' Shelly thought that they are not *' bound to do so much, but to ask him generally, whether (s) Pract. Points, 63. 2 Eq. Ca. Abr. 599. pi. 24. (a) 9 Mod. 2. S. C. Chap. L] of a mortgage. 21 " he will give as much for the term as anotlier will : and, " if he shall refuse, they are not bound to shew more to *' him. But if he say that he will, then it is necessary " for the lessee to shew in certain what man will sive " more. And anotlier question was also asked^ ' Whe- " ther the lessees are bound to delay their sale if the " lessor when he is examined shall say that he wishes to " pause, or take brcalh in the matter ?' And Shelly and " Filzherbert held that they are not bound to wait so long-, " for it may be that another will give him 100/. imme- " diately ; and it would not be reasonable to defer the sale; " but it is necessary for the lessor to say yes, or no, imme- *' diately. And so the condition is then determined." {h) Mortgages of copyholds are generally made by a deed of covenant to surrender the copyholds, with a proviso that on payment of the money the surrender shall be void. The deed should also contain a covenant for pay- ment of the money, and covenants for the title. When the surrender is made, the surrender and condition should be both entered on the Rolls, the entry of the condition immediately following the entry of the surrender. In like manner, if the condition be contained in a separate deed, the deed of defeazance should be entered on the Rolls of the manor ; because, in addition to the reasons before given of the defeazance being lost, and its seem- ing fraudulent, the title to the lands should always appear on the Court Rolls of the manor, and not be dependent on any private deeds or agreements, (c) Sometimes it is stipulated in mortgages, that on rcular payment of the interest the money shall retnain upon the land for a given period^ and such stipulation has been held to be good, (f/) (6) Dyer, 13 b. 14 a. {d) Stanhope y. Manners, 2 (c) Watkins on Copyholds, 184. Eden's Rep. 197. 2d edit. 23 ^ OF A MORTGAGE. [(^HAP. L It frequently happens that in mortgages and other se- curities, the rate of interest is left indeterminate, the money being covenanted to be paid, together with legal interest. A mortgagee, under such a covenant, might re- cover interest at b per cent.;(e) at the same time there is an apparent generality in the reservation which makes it unadviseable. Where a bond and warrant of attorney are given at the same time with a mortgage, it seems proper to recite them in the mortgage deed, as it shews more plainly the nature of the transaction, and identifies them for one se- curity. But where there is also a covenant for payment of the mortgage money in the deed, the bond may very easily be dispensed with, and the warrant of attorney be made for entering up judgment in an action of debt brought by the mortgagee against the mortgagor. So far as regards it as a real security, a real covenant for pay- ment, and a bond, are equally binding upon the heir, or devisee, under the statute of fraudulent devises ; for an action of debt may as well be brought upon a covenant to pay money as upon a bond. (/) And, in point of ex- tent, a covenant real (by which is meant a covenant under hand and seal, in which the covenantor covenants for his heirs,) is a much more comprehensive security ; for in- terest to any amount may be recovered on a covenant, while neither at law, nor in equity, will it be allowed to exceed the penalty of the bond, (g) Where a judgment (e) See post, on the Interest of and M. c. 14. see Wilson v. Knub- Mortgages. ley, 7 East. 128. (/) 1 Leon. 208. Chawner v. (^) Serjeant Williams's note, (i) Bowes, Godb. 217. Gott v. Atkin- Saund. 58. a. Lloyd v. Hatchett, son, Willes 521. Dyke v. Sweet- 2 Anstr. 525. and the cases cited in ing, ib. 585. Co. Lit. 292. b. That Bridgraan's Index, title Bond, pi. an action of covenant does not lie 178. against a devisee under the 3 W. Chap. I.j of a iniortgage. 23 is entered up on a bond, interest may be recovered on that judgment by way of damages, beyond the pe- nalty, (h) Upon every warrant of attorney to enter up judg- ment against a mortgagor, there should be a defeazance or memorandum of the agreement of the parties of the terms upon which the judgment shall be. And such de- feazance must be made at the time of giving the warrant, or at least previously to the acknowledgment of the judg- ment ; for if a judgment be acknowledged absolutely, and a subsequent agreement made, the Court will take no notice of it, but put the party to his action upon the agreement; whereas, where a judgment is confessed upon terms, it is as it were a conditional judgment : the Court will lay iiold of the condition, and see the terms per- formed, (i) By a rule of the Court of King's Bench made in Mi- chaelmas term, 42 Geo. 111. it is ordered, '' That every at- *' torney of this Court, who shall prepare any warrant of " attorney to confess any judgment which is to be subject " to any defeazance, do cause such defeazance to be written " on the same paper or parchment on which the warrant ** of attorney shall be written, or cause a memorandum in ** writing to be made on such warrant of attorney con- " taining the substance and effect of such defeazance." (k) And in Michaelmas term, 43 Geo, III. a similar rule was made by the Court of Common Pleas, and precisely in the same words. (/) Upon this last order it has been deter- mined that it is not sufficient that the defeazance set forth the amount of the sum intended to be secured by the judgment ; but that it must also state all collateral securi- ties. So that if any other security is resorted to, and the (h) M*Clure D. Dunkin, 1 East. (k) 2East. 136. Peacock';, Rules 436. and Orders of K. B. 1. Fluitt, /6. 432. Richards wicke, May 1784, and Hurfordv. v, Borrett, 3 Esp. 102. stated 3 Ves. 576. 2 Scho. and Lef. 381. (0 Williams v. Lucas, 2 Cox 160. I Chap. I.] and mortgage by deposit. 29 res Integra, whether equity would not be obliged to decide so at this day^ upon the principle of part performance. Lord Thurlow decided the matter by asking himself^ for what other purpose could the deposit have been made ? (w) That a contrary decision in 1710 was not very satisfac- tory may be collected from the remarks of the various reporters on the case of Brander v. Boles. In precedents in Chancery (o) the reporter notes that no reason was given for the decree ; and Chief Baron Gilbert, after mak- ing the like observation, adds sed hoc durum a multis habebatur.{p) Be that as it may, the validity of an equit- able mortgage by deposit only is now established beyond a doubt by a numerous list of cases in which the doctrine has been both noticed and acknowledged. The decided cases, however, are likely to limit the doc- trine, for we find repeated declarations from the present Chancellor and the late Master of the Rolls of their deter- mination not to extend it ; so that the Court will, if pos- sible, lay hold of any circumstance to take the case out of the rule. Thus, where there is a question as to the extent of the security, whether the deposit was for the debt then due, or to become due, or for the latter only, upon which fact the affidavits of the parties disagree, the Court will examine the terms, and direct an enquiry in respect of what debt it was deposited, (q) And in a case before the present Lord Chancellor, he declared that a deposit of deeds should not be considered as a mortgao-e except in a clear case, and refused so to treat it in that instance. But upon what the doubt arose, in the short note of it in Vesey, is not stated. (?') And again, a (n) Per Lord Eldon, Ch. in Ex Ves. 606. and per Master of the parte Whitbread, 1 Ro. Ba. Ca. Rolls in Norris v. Wilkinson, 12 300. Ves. 198. (o) Page 375. (^) Ex parte Finden, 11th Jan. ip) Gilbert's Eq. Rep. 35. 1805. 11 Ves. 404, note. (}) Ex parte Mountfort, 14 30 OF AN EQUITABLE MORTGAGE, [ChAP. I. loan perfected by a legal mortgage shall not be extended by parol. The ground on which relief was sought in a case so circumstanced was, that the agreement was equi- valent to a delivery of the title deeds by the mortgagee, and a redelivery, which would have constituted an equi- table mortgage, (s) Nor will a mere parol agreement to deposit, without an actual deposit, confer any equitable lien. Therefore, where one, having a lease in his posses- sion as equitable mortgagee, delivered it up to the mort- gagor in order to obtain a further term, and upon a further advance it was agreed that the further term should be a security for the original debt and further advances. But no delivery was made to the mortgagee of the lease of the further term. The mortgagor becoming bankrupt, the Court held that there was a good mortgage of the original term, but that the parol agreement to deposit the further lease could give no title, and therefore dismissed the petition as to the further term, (t) But on the contrary, in opposition to this desire of not extending the doctrine, the first cases have laid it down so broadly that in many instances it seems dif- ficult to discover grounds for avoiding the rule. Thus, where the deposit was originally for a particular pur- pose, that purpose may be enlarged by a subsequent parol agreement ; as, where a creditor having such equi- table lien advances a further sum on the parol agreement of the debtor, he may retain the deeds as a security for the increased debt, (m) And where a deposit had been made with some bankers, with a written agreement purporting to be a security to the house only while the partners re- (s) Ex parte Hooper, 2 Ro. Ba. (u) Per Lord Eldon, in ex parte Ca. 328. S. C. 1 Mer. 7. Petition Kensington, 2 Ves. & Bea. 84. Ex dismissed with liberty to file a bill, parte Langston, 17 Ves. 227. 1 Ro. (t) Ex parte Coombe in re Bea- B. C. 26. S. C. van, 4 Mad. 249. Chap. I.] and mortgage by deposit. 31 mained the same, but with a written contract arising from a bond afterwards given for securing the advances not only of that partnership but of any other. After- wards one of the partners retired, and another was taken in : then other deposits and memorandums of their intent were made. Upon an application by the remaining partners and the one in-coming that they might be con- sidered mortgagees of the estates, the Lord Chancellor declared, that understanding alone, unless in a fair sense amounting to an agreement, would not do; that in the principal case no two of their agreements would admit the same construction. But, if upon the affidavit and exa- mination taken together, aided by the extreme probability of their intention, it could be collected that what was originally deposited for one purpose should be held as deposited also for the other, with reference to the demand of the subsequent partners, that though by parol it would be sufficient within the cases, (x) A deposit of only part of the title deeds, relating only to a part of an estate, as to a moiety, coupled with evi- dence in writing of an intention to charge the whole, has been held a sufficient equitable mortgage of the whole. (3/) Which decision turned upon the written evidence : but Eldon, Chancellor, in deciding, remarks that it had never yet been decided how far it is necessary to deliver all the title deeds ; or whether that would not be taken to be a sufficient deposit which could be taken, upon looking at the instruments, to amount to evidence that the estate was meant to be a security. So that, whenever the case oc- curs of a deposit of only part of the deeds, though it should want the circumstance of written evidence, it should seem that it would be decided in favour of the security. (x) Ex parte Kensington, 2 Ves. bankrupt, 2 Ro. Ba. Ca. 239. &Bea. 84. 2 Ro. Ba. Ca. 138. {y) Ex parte Wetherell, 1 1 Ves. S. C. And see ex parte Marsh and 398. Others, in the matter of Carlisle, a 32 OF AN EQUITABLE MORTGAGE, [ChAP. I. Consider only that transactions of this sort are generally done ^vithout legal advice^ (z) and how easy it is for the party to detain some of the deeds — and where shall the line be drawn? Suppose him to detain one of the title-deeds only. Lord Kenyon has gone so far as to say that in equity depositing all or even part of the deeds would give the party a charge upon the real estate. («) In two cases it has been held that a delivery of deeds to an attorney to prepare a mortgage did not constitute an equitable mortgage ; and the argument in support of these decisions has been that the deeds were delivered not as a security, but only as a step towards its preparation, which was to be afterwards executed. (6) How far these cases may be held to have settled the law may be worthy of con- sideration, when we consider the argument of the present Lord Chancellor in delivering judgment in a still later case, where the deeds had been delivered over in order that a legal mortgage might be prepared, but with this distinc- tion, that they were delivered over to the party himself. It is thus reported : — '^'The principle of equitable mort- gages is that the deposit of the deeds is evidence of the agreement : but if they are deposited for the express pur- pose of preparing the security of a legal mortgage, is not that stronger than any implied intention ?" Of course, the security in this case was holden good, (c) We find him elsewhere declaring that no case had gone the length, though he did not see the reason, that if the deposit is in the hands of a third person, who could fairly be called a third person abstracted from both, that can be considered a deposit for the creditor, provided that is proved to be the intention, (d) Now it seems that no satisfactory rea- (z) 11 Ves. 404. (c) Ex parte Bruce, 1 Ro. Ba. (a) Richards v. Borrett, 3 Espi. Ca. 374. 102. (d) See in ex parte Coming, 9 (6) Ex parte Battell, 2 Cox 243. Ves. 117. I Ro. Ba. Ca. 301 . Norris ©. Williinson, 12 Ves. 192. Chap. I] and mortgaCxE by deposit. S3 son can be assigned why a deposit with a third person, as a pledge and a delivery to a third person to prepare a legal security, should be determined dilTerently, while the same acts with the party himself will meet with the same con- struction. But little doubt can remain of what would have been the determination of the late Master of the Rolls in Norris V. Wilkinson, had the case ex parte Bruce occurred before it. His judgment therein is made to depend expressly on the want of a case in which the effect of a deposit had been given to a delivery of deeds made for the mere purpose of having a mortgage drawn, (e) The wife of the debtor is not so abstractedly a third person as that a deposit with her will create a security. (/') Nor shall a deposit made with one person who advances money be extended to be a security in favour of a second person who also advances money on an agreement that the first person shall hold as a security for h|m also, (g) Nor shall a transfer of deeds from a depositary, in whose possession they constituted an equitable mortgage, to a person who discharges liis debt, be held to be such an assignment from him as to overreach a prior act of bank- ruptcy committed by the original depositor, against the express words of a defeazance on a warrant of attorney from the bankrupt to the transferree stating that the deeds had been deposited by himself, (h) A deposit of copies of court rolls of copyholds is a de- posit of deeds so as to constitute an equitable mortgage. (?) And where a lease contains a covenant against assign- ing, without the lessor's licence, it may nevertheless be (e) 12 Vos. 200. N. B. This case is best reported in (/) Ex parte Coming, 9 Ves. Rose, where it is stated tliat the 115. petition was dismissed without pre- (if) Ex parte"\Vhitbread& Others, judice to a bill. 1 R.O. Ba. Ca. 299. (.-) Et parte Warner, 1 Ro. Ba. (A) Ex parte Coombe, 17 Ves. Ca. 280. 369. S. C, 1 Ro. Ba. Ca. 268. D 34 OF A MORTGAGE OF SHIPS. [ChAP. I. equitably mortgaged by deposit previously to the licence being' obtained, (/r) It remains only to observe, that it would be a most desirable caution if those who wish to render securities by deposit valid^ with whomsoever made^ would only require a short memorandum in writing of the intention. (/) A satisfaction which might be contained in two lines, and which no person willing to part with his deeds would refuse, (m) In the case of bankers, with whom papers are continually left, it might be particularly useful ; for the casual deposit of a lease with bankers, without any de- claration of the intention, will not, as in the case of paper- securities, give them any lien thereon for the general balance. (?i) As a mortgage may be created by deposit, so may a mortgage be assigned or submorlgaged by deposit, (o) OF A MORTGAGE OF SHIPS. A MORTGAGE of a ship is like the mortgage of any other chattel, and subject to all the principles laid down in courts of law and equity relative to such mortgages. And an equitable interest in ships may be mortgaged as well as the legal. But then, upon every transfer of inte- rest, whether legal or equitable, as well as upon every contract relating to those interests, the requisites of the registry acts must be observed. ( /j) Thus, a deposit of the documents relating to a vessel will not confer even an (k) Ex parte Baglehole, 1 Ro. 278. S. C. 1 Moore 29. Ba. Ca. 432. (o) Matthews v. Wallwyn, 4 (I) 1 Ro. Ba. Ca. 301. Ves. 118. (»j) 12 Ves. 197. (p) See Thompson v. Smith, 1 («) Lucas V. Dorrien, 7 Taunt. Madd. 395. Chap. I.J of a mortgage of ships. 35 equitable Hen ; (q) though, as to liens arising by the course of trade, the case stands upon a different ground. (?-) The practice which has sometimes obtained, of making mortgages of ships by two instruments, one an absolute conveyance and the other a deed of defeazance, is incor- rect. It arose from the difficulty raised at the Custom House in departing from the prescribed form of entry, which is that of an absolute transfer, (s) But the error was no sooner stated than the means for avoiding it pro- vided. The manner of making mortgages of ships, and the steps necessary to be taken by the mortgagee to effec- tuate his security, have been most clearly laid down by the present Vice-Chancellor in the case of Thompson v. Smithj(Oin the following words : — '' The mortgage" must '' be made by the usual bill of sale of the ship, containing in the same instrument a defeazance or condition of re- transfer, on payment of the mortgage raone3^ This bill of sale must contain the recital of the certificate, as the act directs ; and must be fully indorsed on the certificate of registry if the ship be in port; or, if at sea, a full copy of it must be transmitted to the Custom House. The form of indorsement will be the one prescribed by the act ; but with the addition of the defeazance to express the true nature of the contract between the parties, whenever it becomes material to resort to evidence of it. There is nothing in the act to prevent such an addition being made to meet the exigency of the case. A greater deviation from the form prescribed by the act was sanctioned by the Court of Common Pleas in the case of a partial transfer of the interest in a ship ; (w) and an ingenious living writer (.^:) has well observed, that the act seems to require (g) Taylor v. Kinloch, 1 Stark. (0 1 Madd. 395. 175. (w) Underwood v. Miller, 1 (r) Mestaer v. Atkins, 5 Taunt. Taunt. 387. 381. (x) Abbott, on Shipping, 44. (t) 34 Geo. 3, c. 68. s. 15. 36 OF A MORTGAGE OF SHIPS. [ChAP. I. a similar deviation in the case of a mere contract for the sale of a ship which the act directs to be registered, but which cannot be in the exact words of the form prescribed. A liberal interpretation of the act must be adopted to make form give way to substance. In the subsequent forms to be observed at the Custom House the defeazance will probably not be noticed, either in the entry indorsed, or the oath, or in the memorandum made in the book of registers : but, adhering simply to the form prescribed by the act, it will be registered as an absolute bill of sale. But neither the mortgagor nor mortgagee can suffer by that omission. The statutes invalidate the transfers only in the event of a neglect of the prescribed requisites by the parties, not for any mistake or neglect by the public officers. And in the event of any dispute of the title in a court of justice, the proper evidence of title will be the original documents themselves, not any imperfect abstract made of them at the Custom House. By that abstract the mortgagee will, it is true, appear the sole and absolute owner ; and so he is, pro tempore, till redemp- tion. But the mortgagor's right to call for a retransfer will appear from the bill of sale, fully indorsed on the certificate if the ship be in port; or, if at sea, by a full copy transmitted to the Custom House : and I see no ground on which that right can be resisfed. It is a mis- take to suppose that the owner of a ship cannot make any transfer of property without passing entirely and irre- deemably with all his interest." (3/) And the Court of Chancery will upon the mortgage of a ship at sea, provided the forms of the statutes have been observed, grant an injunction to prevent the mort- {y) Thompson v. Smith, 1 Mad. Term Rep. 462. Bloxam v. Hub- 395. and see Rolleston v. Hibbert, bard, 5 Ease. 407. Wilson ?. Hea- 3 Term Rep. 406. S. C. 3 Bro.Cha. ther, 5 Taunt. 642. Ca. 571. Atkinson r. Maling, 2 Chap. I.] of a mortgage of siiirs, 37 gagor from taking out of the hands of the JVIaster the certificate of tlie registry. (:;) But if the mortgagee is prevented from complying with the forms of the statutes, though by the fraud of the mortgagor, there is no ground for relief, even in equity, {a) It will occur to the reader, that in consequence of tiie registry acts requiring the assignment of ships to be evi- denced by bill of sale in writing, that mortgages of ships may be more particularly resembled to mortgages of lease- holds ; and that, if it be intended to bind the real assets, they must be bound by bond, covenant, judgment, or some other method besides the assignment. The great distinction that there is between real estates and chattels personal is this, that the latter is held by pos- session, a real estate by title. And there is the highest necessity for this distinction, for the common traffic of the world could not go on without it. A sale in market ouvert changes the property of a chattel personal, and the rule that possession is the criterion of title to a chattel lias been adopted by the bankrupt acts : {h) so that if the owner has permitted the bankrupt to be the visible pro- prietor, the property is divested, for no one can di?tin- guish the property except by the possession, (c) Where- fore, in all mortgages of chattels personal in possession, the mortgagee should insist on having the possession delivered over to him. But where, from the circum- stance of the case, actual delivery cannot be made, the law will be satisfied by every thing being done towards delivery which the nature of the thing admits, {d) (s) Thompson v. Smith, uhi sup. (c) 13 Ves. 119, Vn. (a) Exparte Balteel, 2C0X. '243. ((/) As to the effect of posses- Bland u. Graves, 23 April, 1808. sion on morrgages of chattels per- Barkerr. Chapman, 3 March, 1812. sonal, and what shall be considered stated in note 1 Mad. 399, 400. a sufficient taking possession, see (6) 21 Jac. 1. c. 19. post. 38 CHAPTER II. OF MORTGAGES UNDER POWERS, BY TENANTS IN TAIL, AND TRUSTEES;— AND OF MORTGAGES TO TRUSTEES. We come now to treat of mortgages of particular in- terests, or where one of the parties acts in a particular capacity. This head of enquiry may be assisted by the following division: — 1. Mortgages under powers. 2. Mortgages by tenants in tail. 3. Mortgages by trustees. And, 4. Mortgages to trustees. SECTION I. MORTGAGES UNDER POWERS. A PERSON, having a power of appointment generally, may make a mortgage under that power. But if the mort- gage be in fee, it will operate as a total execution of the power at law. (a) Not so in equity, for there it will be considered but a partial execution, (b) This doctrine of equity, however, is confined to the case of a simple mort- gage ; for if, subject to the mortgage, there be an ulterior disposition over of the lands inconsistent with the former (a) Sugd. on Pow. 271,272,273. Cha. Ca. 69, And see Roberts v. Dixall, 2 Eq. (b) Thome v. Thorne, 1 Vern. Ca. Ab. e68. pi. 19. G Ves. 797. 141. 182. Lassels v. CornwalHs, Thwaytes v. Dye, 2 Vern. 80. 3 Cha. Prec. 232. 2 Chap. II.] mortgages UxNdeb powers. 39 estate of the mortgagor, the mortgage will even in equity be held to be a total execution of the power, (c) But a mortgage to the person entitled to the estate, subject to the power, will not vary the case so as to deprive that person of the benefit of the former limitation in his favour ; (d) in the same manner that a mortgage to the devisee is not a revocation of the devise, (e) The foundation and reasoning: upon which the Court goes being in eitlier case the same.(y) A power to charge an estate with a particular sum of money, v/ill not enable the donee to appoint the estate to a mortgagee in fee. Thus where a tenant for life, having a power to charge the land with 2000/. joined with the remainderman in tail, without refer- ring to the power in conveying the inheritance to a mortgagee for securing 2000Z., it was determined at law, that the power was not executed. Hale, C. B. observing, that the power might have been well executed by a grant of the land until 2000/. was raised by the profits, (g) or by a declaration of use until 2000Z. was received, or by a deed charging tlie land with the sum : but he doubted whether a feoffment or release of the inheritance was within the power. Yet said that there might be relief in equity, (h) Afterwards the matter coming on in Chancery, Lord Keeper Bridgman, assisted by the Master of the Rolls, held that the tenant in tail having joined with the tenant for life in the conveyance, and covenanted on de- fault of payment for further assurance, and not reciting the power, it could not be taken to be a conveyance in execution of the power, but as owner.(/) From this, how- (c) Fitzgerald v. Fauconberge, (g) See Sheldon v. Dormer, 2 Fitzg. 216, 217. Veni.310. Raithby'seditiou,where (rf)Thornei).Thoriie,lVern.l82. this method was pursued. (e) Peach v. Phillips, 2 Dick. (h) Jenkins v. Keymis, 1 Lev. 538. Baxter r. Dyer, 5 Ves. 656. 150. Hard. 393. (/) f itzgib. 216. (0 Jenkins v. Keymis, 1 Ler. 40 MORTGAGES UNDER POWERS. [CllAP. II ever, it will appear that where an inference can be drawn that it was the intention of the parties to execute the power, the subject will be a proper case for equitable re- lief, (j) In practice, it is always considered that a man having a mere power to charge, cannot mortgage ; but that the most he can do is to charge the lands with the money, which confers but an equitable security, and can- not be got at without the assistance of the Court ; where- fore it is usual in all deeds giving a power to charge, to superadd a power to raise a term of years for the purpose of securing the money. But a power to charge always implies a power to charge with interest ; for the intention in such case is to charge with the principal money, and that of course car- ries interest; and nobody would lend money on such se- curity if the law were otherwise. (A:) The rate of in- terest is in the breast of the party charging; he may fix it at bper cent, or any other legal rate of interest. (/) If he neglects to fix the interest, the interest allowed by the Court of Chancery is i:per cent.: but if he does fix the rate, it cannot be controuled, diminished, or increased, (m) And the rule with respect to the interest, is the same whe- ther the estate to be charged be an estate in possession, or in remainder; for the party complaining, or the subseciueut owner, can always discharge himself by procuring the money at a lesser rate of interest, or paying off the prin- cipal, (rt) A power to charge with a particular sum will not, as 237. iCha. Ca. 103. 1 Lev. 152. Atk. 552. Evelyn v. Evelyn, 2 in marg. 1 Cha. Rep. 145. P. Wms. 659. (J) FothergUI v. Fothergillj 2 (/) Boycott;. Cotton, 1 Atk.552. Freem. 257. (m) Lewis v. Freke, 2 Ves. jun. (k) Kilmary v. Geery, 2 Salk. 507. 638. 1 Eq. Ca. Abr. 341. pi. 4. (n) See the cases cited in the 2 P. Wms. 671. Hall v. Carter, tveo last Dotes. 2 Atk. 358. Boycot u. Cotton, I ___________ _...._J Chap. II. 3 mortgages by tenants in tail. 41 we have seen, authorize a mortgage ; but a power gene- rally to raise a sum of money will : for where a testator, after giving his estate to A. in tail, remainder to B. in tail, remainder to C. in fee, gave to his executor full power and authority to raise out of his estate 600/. for the use of his next heir, it was held, that the executor had sufficient power to sell the lands, (o) And a power to sell for a particular purpose implies a power to mortgage, which is a conditional sale, {p) Where a sum was charged upon an estate for the be- nefit of children, "in such manner" as the survivor of husband and wife should appoint, it was held, that the words not only included a power of raising it by mortgage or sale, but a certain determinate time for raising it. (q) SECTION II. mortgages by tenants in tail. SOME doubt seems to prevail in the books as to the pre- cise situation of a tenant in tail, who has mortgaged with- out first acquiring the fee. In one case Mr. Justice Wright observed, that he did not apprehend the Court would point out what title the tenant in tail should make, but would decree him to make such title to the mortgagee as he was capable of doing. And, therefore, he directed a good title to be made, and the principal, interest and costs, on the mortgage to be paid in six months, or the (o) Warehamy. Brown, 2 Vern. 9. 1 Ves. 42. 153. Bateraan u. Bateman, 1 Atk. (q) Greea v. Belchier, I Alk. 421. 507. (p) Mills y. Banks, 3 P. Wms. 42 MORTGAGES BY TENANTS IN TAIL. [ChAP. II. tenant in tail to be absolutely foreclosed, (r) But it seems that if the bill prayed it, the Court would decree a fine or recovery, (s) More especially^ if there were in the mort- gage a covenant for further assurance, {t) Though such decree would not be binding on the issue in tail in case of the mortgagor's dying without levying the fine, or suffer- ing the recovery, even if he should stand out all process against him to a contempt, (m) Where tenant in tail had mortgaged, but without a covenant for further assurance, and afterwards became bankrupt and died, it was held that the mortgage was good against the tenant in tail only during his life, and that the assignees were not afterwards bound to make it good, (x) The propriety of which decision, as it has been acted upon, (3/) may be thought too well established to be now questioned. But if the mortgage deed contain a co- venant for further assurance, the estate in the hands of the assignees, discharged of the intail by the operation of tlie statute, (z) has been held liable to the mortgage ; and the assignees have been accordingly directed to convey it to the mortgagee, (a) If a tenant in tail mortgage, and afterwards levy a fine, or (the mortgage being for years) suffer a recovery ; the fine or recovery will operate so as to let in the mortgage, and confirm it against all persons claiming under such (r) Sutton V. Stone, 2 Atk. 101. Ab. 28. Sangon c. Williams, cited (s) Case cited in Powell v. Gilb. Eq. Rep. 164. And see the Powell, Cha. Prec. 278. Hill v. ca-es cited in the last note. Carr, 1 Cha. Ca. 294. 1st Decree. (x) Beck v. Welsh, 1 Wils. 276. (0 Jenkins v. Keymis, 1 Lev. (tf) So stated by Mr. Lloyd, 3 237. Jb. 152. in marg. Weale v. Bro. C. C. 598. Lower, cited 2 Vern. 306. 1 P. (z) 21 Jac. L c. 19. s. 12. Wms. 720. Tourle v. Rand. 2 (a) Edwards r. Applebee, 2 Bro. Bro. C. C. 652. 652. w. Pye v. Daubuz, 3 Bro. (u) Powellr. Powell, Cha. Prec. 595. And see Tourle t\ Uuud, 2 278. Herbert v. Tream, 2 Eq. Ca. Bro. 650. Chap. II.] mortgages by tenants in tail. 43 fine (b) or recovery, (c) as well as against the issue in tail. And this operation will not be controuled by the particular design for which those assurances were had. (d) Unless, indeed, they be had under a decree of the Court, in which case equity will not suffer them to operate further than the decree intended, (e) Or if tenant in tail having the reversion in fee mortgage, and his heir after his decease levy a fine, such fine will let in the reversion into possession, and thereby give to the mortgagee an immediate right of entering and holding against the' heir, for in such case a fine extinguishes the estate tail ; [f) which is different from the case of a reco- very suffered by the heir in tail, because a recovery neither extinguishes an estate tail, nor brings the reversion into possession, but enlarges the estate tail into a fee simple, and so absolutely destroys all reversions or remainders ex- pectant thereupon, (g) But if the mortgage by the ancestor be in fee, the issue in tail cannot suffer a recovery without making a previous entry on the lands; for the conveyance of the ancestor tenant in tail by lease and release, or bargain and sale, passes a base fee ; not determined nor determinable till the entry of the issue. (A) (b) 2R0I. Abr. 473. adjudged between Jon. and Bull. Holbeach V. Sambeach, Winch. 102. S. C. Cro. Car. 103. 1 Cha. Ca. 49. 1st Resolution. 4 Mod. 6. Pig. Re- cov. 121. (c) 1 Rep. 62. a. 62. b. 2 Rep. 52. b. Goddard v. Complin, 1 Cha. Ca. 119. Becko. Walsh, 1 Wils. 277. Goodrightu. Mead, 3Burr. 1703. 5 Term Rep. 110. n. (d) Goddard v. Complin, 1 Cha. Ca. 119. Fleetwood v. Templeman, 2 Atk. 79. S.C. Barnard. Cha. Rep. 187. And see cases in the two last notes, and 1st Resolution in Goodrick v. Brown, 1 Cha. Ca. 49. (e) Goodrick v. Brown, 1 Cha. Ca. 49. 1st Resol. (/) Symonds v. Cudmore, 4 Mod. 1. Shelburne v. Biddulph, 6 Bro. P. C. 356. (g) 5Cru. Dig. 487. 1st edit. Bradley's Prac. Points 76. (h) Machil U.Clark, 2 Salk. 619. Rep, temp. Holt 615. When the whole legal fee-simple is vested ia 41 MO«TGAGES BY TRUSTEES. [Chap. II. SECTION III. MORTGAGES BY TRUSTEES. THE most obvious points of enquiry in considering mort- gages by trustees seem to be, 1. Where mortgages are authorized by trustees. 2. The time at which trustees may mortgage, in which we shall have to consider the doctrine of the raising and vesting of portions, mainte- nance money, and interest. 3. The construction put upon certain powers to raise money, and the mode of exercising a trust or power to raise. And, 4. When a trust or power to raise money shall be held to be satisfied, and the effect which a mortgage shall have upon a power which autho- rizes a mortgage or sale. All these may be controuled by the express words of the parties, in which case the trustee is bound im- plicitly to follow his trust, for a declaration of trust is like the prescribing a law to the trustee, which must be ob- served by him, and contains in it a prohibition to act to the contrary. (?*) WHERE MORTGAGES ARE AUTHORIZED BY TRUSTEES. By a numerous list of cases, it is settled that where lands are vested in trustees for the purpose of raising trustees, and the equitable fee is li- mited to one in tail, with equitable remainders oyer, and the tenant in tail mortgages without barring the remainders, whether the con- currence of the mortgagee is ne- cessary in order to enable him to make a tenant to the praecipe to suffer an equitable recovery, see Mr. Butler's note to Fearne's Cont. Rem. 61. (0 1 p. Wms. 456. Chap. II.] mortgages by trustees. 45 money for the payment of debts, legacies, or portions out of the rents and profits that the trustees may raise it by sale ; {j) and in every such case, a trust or power to sell implies a power to mortgage. (A:) The natural meaning of the word profits, it is true, is confined to annual profits : but, in its more extended signification, it may apply to any profits which the land may be made to yield, whether by sale or mortgage ; and, therefore, in these cases the expression shall give way to convenience and intention. The first consideration is the intent to provide a fund for payment ; the second to put that intent into effect. But the construction thus put upon the words " rents and profits," may be negatived either by the express words of the parties, or by the affixing of other words ex- planatory of their sense of the meaning. Thus where there is a direction to raise out of annual or yearly pro- fits, the trust will be confined to the annual profits as they accrue, (Z) So if the trust be to enter and receive the rents until a certain sum shall be raised and received, it will confine it to a raising by the annual profits only, (m) In like manner if it be for payment, as the profits shall advance the money, (w) So where the trust is for pay- ment out of rents and profits, or by leasing, or by grant- ing copyholds on fines, there the expressing a particular mode does in fact imply a negative to the money being raised in any other way, it restrains it to a payment out (j) Backhouses. Middleton, 1 2 Ves. jun. 481. n. And cases there Cha. Ca. 176. Lingon v. Foley, 2 cited. Cha. Ca. 205. Warburton v. War- (A) 3 P. Wms. 9. 1 Ves. 42. burton, 2 Vern. 420. Traflford v. (I) Trafford v. Ashton, 1 P. Ashton, 1 P. Wms. 415. S. C. 10 Wms. 415. S. C. 10 Mod. 401. Mod. 401. Talbot v. Duke of (m) Green v. Belchier, 1 Atk. Shrewsbury, Cha. Prec. 395, 39G. 505. Sheldon t;. Dormer, 2 Vern. S. C. Gilb. 90. Green u. Belchier, 310. 1 Atk. 505. Anon. 1 Vern. 104. (n) Baines v. Dixon, 1 Ves. 41. 46 MORTGAGES BY TRUSTEES. |]ChAP. II. of the rents and excludes a power of sale or mort- gage, (o) But a devise to pay debts out of rents, and then to con- vey the lands, will not hinder a sale, and limit it to annual profits, (p) And, under circumstances, a sale has been decreed, though the trust were for payment out of annual rents and profits, {q) So if the estate be otherwise charged, even a direction that the money shall be raised out of annual rents will not prevent the Court from decreeing a sale. As where a father having power to charge with 5000/. for daughter's portions ; by deed reciting, his power charged the pre- mises with 5000/. for his daughter's portion, payable at eighteen, or marriage ; and for the more effectual raising thereof, appointed that certain trustees should have the possession immediately from and after his decease, until they should by rents and profits raise and receive the 5000/. And by Lord Somers. — In this case it is agreed that if the father had only said that, pursuant to his power, he charged the premises with 5000/. without going further that the Court might have decreed a sale. Now in the first part of his deed he does execute his power, and ex- pressly declares the estate shall stand charged : then he proceeds, and says, that for the more effectual raising of the 5000/., the trustees shall enter and hold until the money be raised by rents and profits. It would be an un- natural construction to say that he meant by this to re- strain what he had before done. What he says for the (o) Ivy V. Gilbert, 2 P.Wms. 13. v. Banks, 3 P. Wms. 1. Gibson ;>. S. C. Cha. Free. 5S3. and 2 Bro. Rogers, Amb. 95. Small v. Wing, Far. Ca. 468. Evelyn v. Evelyn, 3 Bro. Far. Ca. 503. 2 F, Wms. 659. Cookeu.Farsons, (p) 1 Ves. 41. Cha. Free. 184. S. C. 2 Eq. Ca. (7) Rawlins t>. Brotherson, cited Abr. 371. pi. 12. Ridout v. Earl of 1 Bro. Cha. Ca. 312. 2 Ves. jun. Plymouth, 2 Atk. 103. And see 480,481. Ld.Macclesfield'sjadgmentin Mills Chap. II.] mortgages by trustees. 47 more effectual raising you would construe to hinder and restrain the raising of it : but the truer construction of the clause is, that no part of the profits should be divested or otherwise applied until the bOOOl. were raised ; and the remainder men in trust contend for nothing, since the estate can never answer the charge laid thereon ; and therefore decreed a sale, and' all parties to join, (r) Where, by fine and recovery, lands were limited in strict settlement, with a condition that if the settlor at his death should leave one only daughter, and no son, then if the person in remainder should not pay to such daughter 20001. at one payment after she was sixteen, the re- coverors should stand seized to the intent that it might be lawful for such daughter, so long and until she should re- ceive the 2000Z. to enter and distrain for the same, and the distress to impound and keep till the 2000/. and damages were satisfied. The Lord Chancellor Jefferies declared, that though there was no manner of proof to that purpose, that he would take it, that it was intended that in case the remainder man failed of payment at the day, the trustees were to sell to raise it. And the decree ordered that it should be referred to the Master to com- pute what was due ; and that in order to the raising what was so due, and damages, the surviving trustee should make and execute such leases, mortgages, &c. as were necessary, (s) THE TIME AT WHICH TRUSTEES MAY MORTGAGE. Where the trust is to raise money for portions in order to ascertain at what time trustees may mortgage, the two most material considerations are, 1 . AVhether the portions (r) Sheldon u. Dormer, 2 Vern. 1. Decree stated in Raithby's 310. Green v. Belchier, 1 Atk. 505. edition. (*) Meynell v. Massey, 2 Vern. 48 MORTGAGE BY TRUSTEES. [ChAP. II. are vested; and, secondly, whether there are any words to postpone the raising to a period subsequent to their be- coming vested. And these naturally resolve themselves into questions of intention. As to the first of these questions which has frequently occurred of late, there is no great difficulty in collecting the law upon it. If the settlement clearly and unequivocally points out the period at which, or the contingency upon which the right of a child to a provision shall depend, a court of equity has no authority to controul that disposi- tion. " But if the settlement is incorrectly or ambiguously expressed, if it contain conflicting and contradictory clauses, so as to leave, in a degree, uncertain the period at which, or the contingency upon which, the shares are to vest, the court leans strongly towards the construction which gives a vested interest to the child when that child stands in need of a provision ; usually as to sons at the age of twenty-one, and as to daughters at that age or marriage." (s) By Sir Wm. Grant, late master of the Rolls. The case of Wingrave v. Palgrave {t) was a case of the first description; and it was impossible for ingenuity to raise a doubt upon it ; for, first, the estate tail preceded the term for raising portions; and the eldest son, upon attain- ing twenty-one, might have barred all the portions; and the trust of the term was declared that if the tenant for life should die without heir male, and leaving a daughter or daughters^ upon which there could be no ambiguity; for the settlement went on to say that if he should not have a daughter living at his decease, the term should cease. There was only one daughter who died in her fa- ther's Ufetime, leaving issue; so that the term being gone {s) Howgraye v. Cartier, 3 Ves. GranTJlle, 2 Vesey 332. Gordon & Bea. 85, 86. v. Raynes, 3 P. Wras. 134. Hick- (0 1 P. Wms. 401. 9 Ves. 436. man v. Anderson, 2 Vern. 655. 3 Ves. and Bea. 86. Worsley v. Chap. If.] mortgages by trustees. 49 at law it was impossible to contend that it should be re- vived in equity, and the portion raised. The other cases are of the second description. And herein it has been decided that where portions are directed to be paid to children, sons at twenty-one, and daughters at twenty-one, or marriage, with a clause directing^ survivor- ship between the children, in case any of them should die before their shares become " due and payable," which, by the words of the trust, could not be till after the decease of their parents, that the words " due and payable" in the latter clause must relate to the times before fixed, twenty- one or marriage; and that they cannot controul the former declaration under which the children's shares would become vested at those times, so as to carry over the share of a de- ceased child to the survivors, (x) For the meaning of such words has been rightly explained by Sir Wm. Grant, in a settlement of personalty, where the trustees were to stand possessed, after the deaths of the parents, for the children equally, to be paid to the sons at twenty-one, and to the daughters at twenty-one, or marriage ; with a clause post- poning payment in case of either of those times happening in the lives of their parents, till their decease; and a further clause directing the children's shares to go over to the sur- vivors in case of any of them dying before their shares should become payable, &c. His Honour was pleased to declare, that the words " payable, assignable, or transfer- able," have different senses, according to the different clauses of the settlement to which they refer. With re- ference to the right or capacity of the children, the sense is, at twenty-one, or marriage : but then the enjoyment of the persons entitled for life is not to be broken in upon. It is, therefore, provided that the right which ex- (x) Emperor v. Rolfe, 1 Ves. Bro. 253. n. Willis v. Willis, 3 208. Cholmondeley v. Meyrick, 3 Ves. 51. £ 50 MORTGAGES BV TRUSTEES, [ChAP. II. ists for every other purpose shall not be exercised to their detriment. With reference to that interest the sense is, not till the death of the tenant for life. But it is only with reference to that that the preceding declaration is at all qualified ; and as against every one but the tenant for life, the children have a right to say it remains un- qualified. (3/) And even as against the tenant for life it remains un- qualified, except so far as it relates to the time for the raising and payment. For where the payment was to be at twenty-one, happening after the decease of the sur- vivor of the parents, upon a question between the repre- sentative of an only child, who had attained twenty-one, and the mother, it was determined that the son's execu- tor was entitled, (z) Where a direction to raise money for portions has been preceded by a declaration that if the parents should leave, at the death of the survivor, any child or children of their two bodies; («) or, 'Mn case there shall be any child or children of A. on the body of B, living at the time of the decease of the said A.,"{h) then that the trustees should raise, in each of which cases it has been holden as against a surviving child, that the share of a deceased daughter vested in her, so as to be transmissible to her personal re- presentative, though the express contingency of her sur- viving her parents or parent, did not take place. In these cases we are to observe that the events upon which the por- tions were to become raisable actually did happen ; for a child survived the parents. (y) Shenck v. Legh, 9 Ves. 310. 83. n. King v. Hake, 9 Ves. 438. (s) Jeffreys v. Reynous, 6 Bro. Powis v. Burdett, 9 Ves. 428. P. C. 2G0. Stated 9 Ves. 311. (b) Hopeu. Lord Clifden, 6 Ves. (o) AVoodcock v. Duke of Dor- 499. 5et, 3 Bro* C. C. 569. 3 Ves. & B. Chap. II.] mortgages by trustees. 51 And upon this ground stands the case of RandEill v. IMct- calf, (c) where, after a provision for a daughter and her children, the money was given over, if the daughter should die " without leaving issue." She had a son and daughter : the daughter died in the lifetime of her mother, but the son survived; so that the contingency of her dying with- out issue did not happen ; — and it was decided that the re- presentative of the deceased child was entitled to her share as against the son. So in Heurtley v. Mason, {d) where money was settled after marriage upon the husband and wife for life, re- mainder to the children at twenty-one, with a trust for the wife absolutely, if the husband should die and the wife sur- vive (which was the case), he leaving no issue of her bodi/ begotten^ or that such issue should die in the lifetime of the said wife, there was issue of the marriage one daughter only, who died in the lifetime of her mother, leaving two children. And upon a question between the grandchildren and the executors of the mother, it was held by Lord Chancellor Northington that the words " leaving no is- sue," in the last clause, are to be construed " leaving no posterity" The word issue is nomen collectivum; and does not, in that part of the settlement, mean children, as it does in some parts of it. That as the daughter attained twenty-one, and left issue, though she died in her mother's lifetime, the last clause did not take place, but was an in- terest vested in the daughter, and transmissible to her representatives. But in cases where a testator has left money to a daugh- ter for life, and afterwards to her children at twenty-one, with a bequest over, if the daughter should die without any child or children living at the time of her decease, or being such in case all such children should die before (c) 6 Bro. P. C. 559. S. C. 9 Smith, 14 Ves. 470. Ves. 314. See also Bayard v. (d) Amb. 621. E 2 52 MORTGAGES BY TRUSTEES. [ChAP. II. their portions should become payable; it has been held that the portions of the grand-chWdxtn were contingent* depending upon the event of their surviving their mo- ther, (e) But in the case of Powis v. Burdett, (/) where by mar- riaffe settlement it was declared that after the decease of the Earl of Denbigh, in case he shall leave one or more daughter or daughters, younger son or younger sons of his body, on the body of his intended wife to be begot- ten, then that the trustees should raise money for the por- tions of such children. And in which case the condition of surviving the parent was not at all fulfilled ; for no child outlived the settlor. The Chancellor was reduced to the necessity of overcoming the difficulty arising from the word " leaving;" and this he did by laying hold of a clause for advancement, inserted in the settlement. For the fa- ther could not make an advancement for any child, if no child could take except a child surviving. This has been thought a strong case : but it is no more than agreeable to an obiter opinion of Lord Eldon's else- where expressed. In Hope v. Lord Clifden we find him noticing that it had been said that if there was no younger child at the death of the father, none of the younger children could have had their portions; and declaring that that he did not conceive that. That it might have been as well argued in Woodcock v. Duke of Dorset; in which case it was clear that in that event Lord Thurlow must have held that they would have had it; and, in fact, had held that if they married or attained twenty-one, though they died in the lifetime of both parents, they would have been entitled. That there was not a word in the context to sustain that opinion in that case. That there was con- (e) Bennett v. Seymour, Amb. (/) 9 Ves. 428. 521. Lloyd V. Bird, 9 Ves. 305. Chap. H] mortgages dy trustees. 53 siderable context to support it in the principal case. The legal term existing-, if it could be said to exist at law^ though all died in the life of the father, they should take, (g-) Where a parent has a power to settle the shares which the several children shall take by will; and, in default of appointment, the fund is given over to the children; such power will not prevent the children from taking vested interests in their portions, immediately upon their re- spective births, subject to be divested by the exercise of the power. (Ji) The law was once held otherwise, (z) And in Willis v. Wilhs, (A:) where there was a power of ap- pointment by will, the difficulty arising from that circum- stance was allowed. But the case, in default of appoint- ment, having happened, the Court said they were glad the case had not arisen in which that argument could be pressed; and, therefore, decided it on another ground. Nor will an appointment amongst younger child, declaring the meaning to be such as do not inherit the estate where there is a previous life interest subsisting, postpone the vesting till the decease of the tenant for life, in order to know who such younger children shall be. (J) But a power to appoint the share by will will postpone the raising of the portions till after the parent's decease, as we shall presently see. Having ascertained when portions are vested, the pre- sumption is, that they are then payable ; and, if vested and payable, it follows as a matter of course that they should be raised as soon afterwards as may be; for from that time they will carry interest; and the land will be charged with interest, though the fund provided for payment be a re- ig) 6 Ves. 510. rough, 3 Bro. C. C. 254. (A) Vanderzee v. Aclom, 4 Ves. {k) 6 Ves. 508. 3 Ves. 51. 787. (/) Conway v. Conway, 3 Bro. (0 Boyle i\ Bishop of Peterbo- C.C. 267. 54 MORTGAGES BY TRUSTEES, [ChAP. 1L versionary interest ; therefore the next enquiry is rather in the negative. — What shall postpone the raising to a pe- riod subsequent to the vesting? In a case before Lord Eldon, in which the question was very fully considered, after noticing the various rules of construction laid down by previous chancellors, (which shews at once the indecision and the fluctuation of opinion, which, for a long time, prevailed upon the sub- ject,) his lordship proceeds to observe, that the rule upon the whole depends upon this; whether it was the intention of the parties to the instrument attending to the whole of it, that the portion should or should not be raised in this manner; taking it prima facie to be the intention upon the general rule, if there is nothing more than a li- mitation to the parent for life, with a term to raise portions at the age of twenty-one, or marriage; if there is nothing more, and the interests are vested, and the contingencies have happened at which the portions are to be paid, the interest is payable, and the portions must be raised in the only manner in which they can be raised, that is, by mort- gage or sale of the reversionary term, (n) And if a re- versionary term shall be mortgaged or sold, afortiorij may a term or interest in possession. If a trust be limited to arise upon failure of issue male,(o) or upon the father's dying without issue male, (p) or if the trust of a term be declared that if the father die without issue male of his body, {q) or if there be no issue male of a marriage, (r) then the trustees to raise portions for daugh- (?0 Codringtot) v. Lord Foley, 6 (/)) Gerrard v. Gerrard, 2 Vern, Ves. 380. Stanley v. Stanley, 1 458. Atk. 549. (j) Greaves v. Mattison, 2 Jon. (o) Staniforth u. Staniforth, 2 201 . Smith v. Evans, Arab. 633. Vern. 460. Sandys v. Sandys, 1 (r) Hebblethwaitev.Cartwright, P. Wins. 707. lleliar v. Jones, 1 For. 30, Eq. Ca. Ab. 337. pi. 2. 1 Chap. II.] mortgages by trustees. 55 ters; and the mother, from whom the issue male were to spring, die, without male issue in the father's lifetime, the daughters' portions will become raisable immediately upon the death of the mother ; for all that was contingent has happened. It is become impossible that there should be issue male ; and as to the father's death, that is not con- tingent, for all men must die. And this construction will not be varied in cases where the term is made to cease on the father's advancing the daughters' portions in his life- time; (s) or where the settlement provides maintenance. (0 Nor will the trustees be allowed to wait till the parent's decease, in order to make their election in what way the money shall be raised, where the trust has given them an option of doing it out of the rents and profits, or by mort- gage or sale, (u) And in such cases it is no more in the discretion of the Court to postpone the raising than in the power of the trustees.(x) In the same manner the giving the child a power of entry, to secure a portion, will not postpone the raising till the reversion falls into posses- sion, (j/) And against this rule of raising out of a rever- sionary interest, any argument drawn from the child's be- ing already provided for by another relation, or by the kind- ness of the one providing, will be of no avail, (s) In these cases the portions were held to be raisable in the parent's lifetime, because the trust to raise only de- pended on a contingency; and, by the decease of one pa- (s) See the case cited in the last For. 33. note, and 2 P. Wms. 101. (x) Sandys v. Sandys, 1 P. Wms. (0 Greaves u. Mattison, 2 Jon. 709. 201. Hebblethwaite v. Cartwright, (ij) Bacon v. Clerk, Cha. Prec For. 30 ; and see Corbett v. Maid- 300. well, 1 Salk. 160. Goodall v. Ri- (2) Sandys r. Sandys, 1 P. Wms. vers, Mos. 395. 400. Hall v. Car- 709. Codrington v. Lord Foleyj ter, 2 Atk. 354. 6 Ves. 304. Ravenhill v. Dansoy. (w) Hebblethwaite y. Cartwright, 2 P. Wms. 180. 1 56 MORTGAGES BY TRUSTEES. [ChAP. II. rent, withoul issue male, the contingency was supposed to have happened: but, if the time of payment be also post- poned there, it shall not be raised till the decease of the surviving parent, as it was, under a trust to raise a daughter's portion to be paid at twenty-one, or marriage, which should first happen when husband and wife should die without issue male, {a) And so it would have been in Gerrard v. Gerrard, under a trust to raise on failure of is- sue male to be paid at twenty-one, or marriage, which should first happen next after the decease of father and mo- ther, or within six months after cither of those days or times, had it stood upon the words '' after the decease of the father and mother " only. (6) But though the rule with respect to raising portions out of reversionary terms directly, the contingencies have happened, and the portions have become vested, is now perfectly established ; yet the court feeling the inconvenience frequently arising upon the reversioner, by raising portions in this manner, will lay hold of any ex- pression from which it can be inferred that it was the in- tention to postpone the raising till the term came into possession, (c) As where the trust is to raise portions for daughters unmarried, and unprovided for at the decease of the father, which is a contingency that cannot be ascer- tained till his decease; {d) or where it is to raise after commencement of the term in possession ; (e) (a) Champney v. Champney, 10 (c) Stanley v. Stanley, 1 Atk, Mod. 31 4. Clinton t>. Seymour, 4 548. 4 Vez. 460. Ves. 440. The case of the Duke («7) Corbettr. Maidwell, 1 Salk. of Southampton mentioned in 159. S. C. 2 Vern. 655. Champney v. Champney and 2 (e) Churchman u. Harvey, Ambl. Vern. 641. will be found in Show. 335. Butler v. Buncombe, 1 P. Par. Ca. 83. AVood v. Duke of Wms.448. Where the trust was to Southampton. raise from and after commencement {b) 2 Freem. 271. of the term " without paying" in ClIAP. II.] MORTGAGES BY TRUSTEES. 57 or where there is a clause for maintenance, and a de- claration that the residue of the rents, after mainte- nance, shall in the mean time, or until the portion becomes payable, be received by the person entitled to the reversion expectant on the determination of the same term, (/") or where the first payment of the maintenance is directed to be made after the term comes into pos- session, for maintenance must precede the portion, (g) In each of which cases it has been holden that the rais- ing shall not be anticipated by the sale or mortgage of a reversionary term. Much more so, where there is a previous estate tail subsisting ; (A) or where, independent of other circumstances indicating an intention of post- ponement, there is a general power of revocation in the parent with the consent of the trustees, {i) If there be a power of appointment in the father for settling the children's shares by deed or will, it is clear that the children have no right to call for their portions in the life of the father ; for the proportions and restric- tions in and under which they are to take^ as well as the times, may depend upon his will, which cannot take effect till his death, (k) Nor can the father exercise his power of appointment by deed, so as to vest it in a child, and thereby eventually entitle himself to the portion as administrator and next of kin, by an arbitrary appointment. It being the mean- ing of a charge for children, that it shall take place when possession, has been said to be Wms. 484. 3 Bro. Par. Ca. 437. more like an award than a decree, (h) I P. Wms. 454. 2 Ves. 334. 4 Ves. 462. 6 Ves. (0 Reresby v. Newland, 2 P. 385. Wms. 93. S. C. 2 Bro. Par. Ca. (/) Clinton V. Seymour, 4 Ves. 487. 440.461. Stevens v. Dethick, (A) Codrington u. Lord Foley, 6 3 Atk. 39. Ves. 364. 380. Conway v. Conway, (g) Brome v. Berkley, 2 P. 3 Bro. C. C. 267. 58 MORTGAGES BY TRUSTEES. [ChAP. II. it is wanted, and not before. The trust having given the father a discretionary power of raising it in his lifetime, will not in this respect assist him. For the meaning of such a power has been explained to be only to enable him to raise the money in his lifetime, if it should be necessary, for the child's marriage or for some other purpose. (I) Where by the settlement there has been no time ap- pointed for the vesting of a portion, in such case it seems that if a child attains a proper age, and does dispose of it by will, that the portion will nevertheless be raiseable, though that child, being a daughter, afterwards die under twenty- one and unmarried. This was decided by Lord Chancellor Jefferies, in the case of Rivers v. The Earl of Derby, so long ago as the year 1688; (m) the validity of which decision has since been recognized and approved of. (tt) But otherwise, if the children for whom portions are provided die before they want them ; that is, as has been before explained, daughters under twenty-one and un- married, and sons under twenty-one, and without having made any disposition by will. And the settlement is silent as to the time at which they shall vest. The portions of the children so dying will sink into the land for the benefit of the heir, or go over to the other younger children, according to the words of the trust; whether that be for the raising of so much for each younger child, in which case it will sink, (o) or for the raising of a certain sum for all the younger children generally, in which case, on death, or becoming an eldest child, it will go over to the survivors. (/?) And, (0 Lord Hinchinbroke v. Sey- (o) Warr v. Warr, Cha. Prec. mour, 1 Bro. C. C, 395. 213. Tournay y. Tourney, Cha. (m) 2 Vern. 72. Ptec. 290. (n) Cowper v. Scott, 3 P. Wms. (p) Lord Teynham v. Webb, 2 120. 2 P. Wms. 672. Ves. 198. I Chap. II.] mortgages by trustees. 59 according to the event, whether all the younger child- ren die under twenty-one, as to daughters unmarried, or not. {q) So where no time is appointed for the vesting, but it is declared that the trustees shall within a certain time raise and pay, and a child dies before the expiration of that time, the portion shall sink, although the trustees might have raised it presently, and paid it to the child be- fore his death, (r) But, in such case, the share of a daughter marrying and dying within the time shall not sink, (s) The foregoing observations will shew how necessary are the precautions usually adopted by conveyancers, in penning provisions for portions ; not only in declaring how they shall be raised, as by and out of the rents, issues, and profits (which, when confined to '' annual/* would include a power of leasing at rack rent,) {t) or by demising, (which means leasing upon fine,) (u) mort- gaging or selling, (which last includes all the rest,) (x) or by any other ways and means to levy and raise : but also in pointing out the precise time at which the raising shall take place ; as where there is a previous life estate, de- claring that it shall be in the lifetime of the tenant for life with his consent, or else not till after his decease, {y) As also in expressing the particular times at which the por- tions shall vest and be payable, and the events upon which {q) Bruen v. Bruen, 2 Vern. (0 Havergill u. Hare, Cro. Jac. 439. S. C. Cha. Free. 195. 510. 3rd point. (r) Tournay v. Tournay, Cha. («<) Smith v. Evans, Ambl. 633. Free. 290. {x) 1 Ves. 42. (5) Cowper V. Scott, 3 P. Wms. (j/) This practice is noticed, 2 119. In Tournay v. Tournay, cited Atk. 357. See also 2 F. Wms. 99. j in the last note, the child died be- and Lord Hinchinbrokeu. Seymour, fore it could want a portion, per cited in the last page. Lord Hardwicke, 2 Ves. 209. 60 MORTGAGES BY TRUSTEES. [ChAP. II. the shares of the children shall go over; (a) extending- this provision to the accruing shares^ as well as the original; as also where the amount of the money depends on the num- ber of the children in limiting the ultimate amount which shall become raisable according to the number of child- ren attaining vested interests ; as also, we will add here, for the sake of considering the subject at one view, in de- claring what sums of money shall be raisable for the maintenance of the children after the decease of the tenant for life until their portions shall become vested and payable, varying those sums according to the ages of the children, where the intention warrants it, and limit- ing the raising for maintenance, as is almost always intended, out of the annual rents and profits ; as also to remedy the inconvenience which may arise from post- poning the vesting of the sons' shares till twenty-one, in giving the trustees a power of advancement, fixing the amount of such sum to be advanced, and declaring how, when, and for what purpose it may be raised. Bv a lonff train of uniform decisions which have fol- lowed the case of Poulet v. Poulet, decided by Lord Keeper Guildford, in 1683, it has been settled that v/here there is a charge upon lands, to be raised and paid at a certain future period, and the person entitled to the charge dies before the period of payment arrives, that the money shall not be raised at all, but shall sink into the land. (6) And it will be the same as to the real estate, whether it be the primary or auxiliary fund for (a) As upon sons dying under (b) Poulet v. Poulet, I Vern. twenty-one, and daughters un- 204. Duke of Chandos v. Talbot, married, or upon a younger child 2 P. Wms. 600. 612. and note, becoming an eldest, 2 Ves. 211. 5th ed. Elwin v. Elwin, 8 Ves. And see generally. 2 Ves. 334. 547. Butler's Co. Lit. 237. a. no. Fearne on Executory Devises, 1. Fearne, on Exec. Dev. 555. 557. note, sec. 5. 6th cd. note. 6th ed. Chap. II.] mortgages by trustees. 61 payment, (c) But^ in the application of this rule, the courts have allowed those cases to be exceptions to it, in which the time of payment is postponed on account of the circumstances of the fund ; taking a distinction between a postponement on account of the circumstances of the party, and a postponement on account of the cir- cumstances of the fund. Under the first of these distinctions falls the case of a portion to be raised and paid at twenty-one ; wherein, if the child dies before that age, the portion shall sink ; because the postponement is occasioned on account of the circumstances of the party, who is supposed not to want it till that age. (c/) But if in the same instance it had been declared that the payment should not take place till the decease of a tenant for life, there such postponement will be held to be caused on account of the circumstances of the fund, by reason of the inconvenience attending the raising of money out of reversionary interests. And the portion shall be raised if the child attains the age of twenty-one, notwithstanding his death in the lifetime of the tenant for life, and consequently before the time al- lotted for payment, (e) But where a legacy is given generally, which by the rules of law vests immediately on the testator's decease; and the land is charged therewith, as an auxiliary fund, to be levied and paid imlhin a year ; there it shall not sink ; because the specifying that time is saying no more (c) Yates V. Phettlplace, 2 Vern. (e) King v. Withers, Ca. temp. 416. Jennings t). Looks, 2 P. Wms. Talb. 117. S. C. 3 P. Wms. 414. 27G. Duke of Chandos v. Talbot, 4 Bro. Par. Ca. 228. Godwin v. 2 P. Wms. 612, 613. Prowse v. Munday, 1 Bro. C. C. 191. and Abingdon, 1 Atk. 482. Reynish cases there cited. Bay ley v. Bishop, V. Martin, 3 Atk. 3^5. 9 Ves. 6. Tuastall v. Brachen, (t/) Jennings v. Looks, 2. P. Ainbl. 167. Wm3» 276. 62 MORTGAGES BY TRUSTEES. [ChAP. II. than a court of equity would say without those words — mere surplusage — and can make no alteration. (/) So if the payment of a portion or legacy is made to depend on a condition^ the performance of which rests with the trustee ; as that it shall be paid at the end of two years, if certain debts shall be then paid ; no fraudulent or unnecessary delay on the part of the trustee, will be allowed to affect the interest of the child or legatee ; and, therefore, an enquiry may be directed to ascertain at what time the debts might have been paid, by a due application of the means of payment, (g-) In this case, i. e. the one last cited, it was argued, that the portion must be considered to have vested at the expira- tion of two years from the testator's decease : but it was answered, and the Master of the Rolls alludes to it in his judgment, that a bequest over to the issue, in case any of the daughters should die before their portions shall be- come due or vest, as aforesaid, was indicative of a con- trary intention. The court leans against the allowing maintenance in the lifetime of the father; (h) but will readily decree it to be raised in the lifetime of the mother, (i) And if no maintenance be provided for the child till the portion be- comes payable, the court will decree the trustees to raise a reasonable maintenance, not exceeding the interest of the expectant portion, for the law will not attribute to parents the unnatural intention of leaving their children destitute. (A:) But this rule of allowing interest by way of maintenance, though not provided, is confined to the case of a portion provided by a parent ; for if a pro- (/) Wilson V. Spencer, 3 P. (0 Staniforth v. Staniforth, 2 Wms. 172. Vern. 460. (g) Bernard v. Montague, 1 (k) Staniforth v. Staniforth, 2 Mer. 422. Vern. 460. Harvey v. Harvey, 2 (h) Corbett u. Maid well, 1 Salk. P. Wms. 21. Green v. Belchier, 159. 3 Atk. 43. 1 Atk. 505. 3 Atk. 438. Chap. II.] mortgages by trustees, 63 vision be made for a child by an uncle, or any other rela- lioTi, the court will not allow interest till the time of payment. (/} So interest will not be allowed before the time for payment, though the provision be made by a grandfather or grandmother, (m) who are sometimes con- sidered as parents, (w) If the maintenance fall in arrear, the court will direct it to be raised from the father's decease, (o) But if the person entitled to the estate, subject to the charge, main- tain the child, he will be allowed to set the maintenance against the interest of the money, (p) And if a child die before the portion becomes vested, still the maintenance for the time such child lived must be raised, (q) but no longer. For where interest was given for the maintenance of a female child, and the trustees had power to raise the money within a certain time, the child died within the time allowed for the raising. Upon a bill brought by the husband for the portion and in- terest, the court, after observing that the interest of the money was designed for the maintenance of the wife, and that she was dead, ordered that there should be no interest paid from her death, (r) Where a term is not to commence till the decease of a father ; and it is provided, that after maintenance the re- sidue of the rents shall be received by the person next entitled in remainder expectant, upon the determination (0 Crickett v. Dolby, 3 Ves. Cha. Free. 195. Boycot ». Cotton, 10. 1 Atk. 507. Heath v. Perry, 1 Atk. 556, 557. 3 Atk. 101. (p) Boycot V. Cotton, 1 Atk. (m) Palmer v. Mason, 1 Atk. 556. 305. Haughton v. Harrison, 2 (q) Brewin o. Brewin,Cha.Prec. Atk. 102. 195. Lyddoa v. Lyddon, 14 Ves. (n) 2 Ves. 210. 566. (o) RavenhlU v. Dansey, 2 P. (r) Cowper v. Scott, 3 P. Wms. Wms. 180. Brewin v. Brewin, 119. 64 MORTGAGES BY TRUSTEES. [ChAP. II. of the term there, as no mortgage can be made till after his decease, it follows that no maintenance can be raised in his lifetime. (&) But in all cases where the maintenance is a charge upon the estate, and cannot be raised till a future period, the arrears of it may be raised retrospectively, whenever the estate charged falls into possession, (t) In decrees for maintenance, the child being otherwise provided for, is immaterial, (u) If no maintenance be provided, portions will carry in- terest from the time of their becoming vested; and the rate of such interest will be four per cent.: (x) but where interest is given by the Court, on a legacy, or portion, by way of maintenance, then if the provision for children be scanty, in order to make a competent allowance, more than four per cent, has been allowed; (i/) which rule, however, does not extend to cases where a maintenance has been provided by the deed or will, although it be less than the interest of the portion, (z) We have seen that where a term for raising portions is dependent upon an estate in tail male, the portion will be- come raisable upon the death of either parent, without is- sue male; consequently, interest shall run from that time: but where a parent dies, leaving issue male, entitled under the intail; there, on the portion being raised, the interest (s) Stevens v. Dethick, 3 Atk. 39. 4 Ves. 461. (0 Hall V. Carter, 2 Atk. 357. Lyddon v. Lyddon, 14 Ves. 566. (m) Ravenhill v. Dansey, 2 P. "Wras. 180. (x) Lord Pomfret v. Lord Wind- sor, 2 Ves. 487. Sitwell v. Ber- nard, 6 Ves. 540. Hope v. Lord Clifden, 6 Ves. 499. Lyon v. Duke of Chandos, 3 Atk. 419. Conway V. Longville, 1 Eq. Ca. Ab. 301. (i/) Incledon v. Northcote, 3 Atk. 438, 439. 6 Ves. 540.; and see 2 Ves. Jun. 512. (z) Hearlex). Greenbank, 3 Atk. 697. 717. S.C. 1 Ves. 298.; and see Mitchell v. Bower, 3 Ves. 283. Long V. Long, 3 Ves. 286. n. S Chap. II.] mortgages by trustees. 65 will be computed from the decease of the surviving tenant in tail, (a) In the case of Lyon v. Duke of Chandos, (6) where, upon the marriage of the Marquis of Caernarvon, a term was limited for raising' portions for the daughters of the marriage to be paid on the decease of the Marquis, who had also a power of having them raised in his lifetime; but the maintenance was not to commence till the decease of the Duke. The Marquis dying in the lifetime of the Duke, it was argued that the maintenance, being to com- mence after the decease of the Duke, and being in its na- ture to precede the portion, the portion could not be raised till the death of the Duke. But Lord Hardwicke thought otherwise ; and decreed the portion to be raised with in- terest from the decease of the Marquis. And in a case where a testator had declared that the term should cease on the remainderman's paying over the portion without saying, '^'^and interest," it was held that he must pay interest also ; and that the intention of the tes- tator was to provide maintenance till the portions became payable, and interest afterwards, (c) And in a late case, where the portions were not to be paid till after the decease of the survivor of father and mo- ther, and there was a trust to raise interest for the main- tenance of the children, till their portions became due and payable, upon a bill filed by one of the younger children for his portion, with interest from the decease of the fa- ther; the late Master of the Rolls, after having taken time to consider of it, in pronouncing judgment, said, that the provision of interest for maintenance was general, with no qualification whatsoever. But the eldest son had contended (a) Goodall v. Rivers, Mos. 395 . 464. S.C. Kely.2. 1 P. Wms, 454. (c) Hall v. Carter, 2 Atk. 358. (6) 3 Atk. 416. 4 Ves. 463, F <]G MORTGAGFS BY TRUSTEES. [Ch AP. II. that though the portions were (rf) due and payable^ yet interest was not to be paid during the life of the mother; that that was a qualification not warranted by the words, and would be contrary to the intention ; the children were equally in want of maintenance during her life^ as after her death: he^ therefore, decreed interest according- to the prayer of the bill, (e) Moreover, a reversionary term may be sold for raising maintenance; (/) and it seems that it may be done under the words rents and profits only, (g) And though the consequence be very inconvenient; yet it must be raised from time to time as the maintenance becomes due, under the settlement. And the trustees may not raise, at once, more money than is wanted, and put out the surplus to interest, (h) So the interest on portions ought to be paid annually, and ought not to be allowed to accumulate for the child ; for it is given as a recompence for the principal in the mean time, and until it is due. (i) The mortgage in all cases will be for the amount of the principal sum, and the arrears of interest. And the inter- est on that amount will be according to the market price of the day. In Codrington v. Lord Foley, the rate of interest allowed was 4Z. per cent, before the filing of the bill, and 5/. per cent, afterwards. Trustees, who are appointed to raise money for the (d) Here the word " not " is in- 201. 2nd llesol. Ravenhill v. serted in the report: but the sense Dansey, 2 P. Wins. 180. Pierpoint of the passage seems to require its v. Lord Cheney, 1 P. Wms. 493. rejection. 4 Ves. 464. (e) Lyddon v. Lyddon, 14 Ves. (g) Hall v. Carter, 2 Atk. 358. 558. A case which seems to in- 14 Ves. 566. Tolve many nice questions relative (h) Pierpoint v. Lord Cheney, 1 to maintenance and interest on por- P. Wms. 493. tions. (?) Boycot v. Cotton, 3 Atk. (/) Greaves u. Mattison , 2 Jon. 553.555. Chap. II. ] mortgages by trustees. 67 payment of debts and legacies, must raise not only the principal money but all arrears of the interest; whicli in- terest, when the trust is to raise out of real property, va- ries in its rate according to the subject matter and other circumstances. But, upon this head it, seems only neces- sary to recollect the following" rules : — 1st. That specialty debts shall carry interest; but that simple contract debts shall not, {k) unless there is some particular ground for it, as where the debtor has done something treating them as specialty debts, such as an- nexing a schedule of them to his will, or the trust deed. (/) And that, if a debt be to be paid at a certain day, the rate of interest shall be 5Z. per cent, from that day: but that if it be payable upon demand, the interest will be 5/. per cent, from the demand, (m) A note payable at a day un- certain, or a shop debt, carries no interest. («) But if, where a man devises his estates for payment of debts, his simple contract creditors file bills for a mortgage or sale, the simple contract debts will carry interest from the time of the master's report being confirmed, (o) 2nd. It has been settled that under a trust to pay debts a bond debt shall not, by arrears of interest, be allowed to ex- ceed the penalty, (p) And that, under a trust or devise of real estate for the payment of debts, debts barred by the sta- tute of limitations shall be paid, (7) though tlie rule is otber- (k) Earl of Bath v. Bradford, 2 108. S. C. Barnard. Cha. Rep. 221. Ves. 587. Barwell v. Varker, ibid. 1 Bro. Cha. Ca. 43. 363. Tait v. Lord Northwick, 4 (p) Anon. 1 Salk. 154. Llo}ii Ves. 816. V. Hatchet, 2 Anstr. 525. (0 Stewart ». Noble, Vem. and (q) Anon. I Salk. 154. Blake- Scri. 528. 2 Ves. 3G4. wayt). Earl of Stafford, 1 P. Wms. (»i) Upton o. Lord Ferrers, 5 Ves. 373. Jones v. Earl of Strafford, 3 803. Lowndes u.CoUens, 17 Ves,27. P. Wms. 89,; and Cox's note there. (n) Parker v. Hutchinson, 3 Ves. Lacon v. Briggs, 3 Atk. 107. Gof- 135. ton r. Mill, 2 Vem. 141. Andrews (o) Lloyd V. Williams, 2 Atk. v. Brown, Cha. Prec. 3S5, f2 68 MORTGAGES BY TRUSTEES. [ChAP. II. wise, if the demand be very stale, (r) In Lloyd v. Hatch- ett, in the Exchequer, Thompson, Baron;, said, that he remembered being counsel in a case of Ketilby v. Ketilby, before Lord Bathurst, where there was a devise for pay- ment of debts. Simple contract debts, even for seventy years' standing-, were renewed by this devise; and were paid with full interest : but the bond debts were only al- lowed interest to the amount of the penalty ; and were, therefore, in a worse condition than those upon simple contract, (s) 3rd. That legacies charged on lands shall carry interest at the rate of 4/. per cent, per annum, from the time they become payable, which, if no time be appointed by the will, will be from a year after the testator's decease. (<) If it be to raise and pn'y, as soon as conveniently may be after his decease, it will be from the time of his death, (m) THE CONSTRUCTION PUT UPON CERTAIN POWERS TO RAISE MO- NEY, AND THE MODE OF EXERCISING A TRUST OR POWER TO RAISE. Where a power is given to one qua executrix to raise a portion, and she has real estates also devised to her, it will be confined to the personalty, {x) In a case where trustees of a public turnpike act had power to mortgage the tolls, but it was declared that there should be no priority amongst the creditors, the trustees (r) Oughterloneyo.Powis, Amb. (/) Sitvv'ell v. Bernard, 6 Ves. 231. Legastick v. Cowne, Mos. 520. 391.; and see Vaughan t>. Cowne, {u) Spurway c. Glynn, 9 Ves. Mos. 245. Trueman v. Fenton, 483. Cowp. 548.; and Anon. 2 Vern. {x) Doe p. Milborne, 2 Term 205. Rep. 721. (*) 2 Anstr. 527. _J Chap. II. j mortgages by trustees. 69 granted a mortgage of all the tolls (not any aliquot part); and the toll-houses and toll-gates were also inserted in the mortgage. And the questions made were, 1st. Whether the trustees had any authority to mortgage the toll-houses and toll-gates? And, 2dly, Whether, in an ejectment brought, they were not estopped by their own deed? The Court held that the act gave no authority to mortgage the toll-houses and toll-gates, for by that means a creditor might gain a priority, which the act had denied ; and that as the trustees were not acting for their own benefit, but for the benefit of the public, they were not estopped, (j/) In a subsequent case Lord Eldon, addressing himself to the judgment of the Court, in this case, thought that the prin- cipal difficulty arose from the mortgage comprising all the tolls, and not of a proportion, denying that in the latter case any priority would have been gained since the lessor of the plaintiff would become the bailiff of the rest of the creditors as to all except his own proportion, (s) But in the principal case of Doe ex dem. Banks v. Booth, the act having empowered the trustees to " mort- gage the tolls or any part or parts thereof, and the turn- pikes and toll-houses for collecting the same ;" and the trustees having mortgaged such proportion of the tolls as the money advanced bore to the whole sum due and owing ofi the credit thereof; and by a subsequent deed having de- mised the turnpikes and toll-houses also; the Court held that the mortgagee might maintain an ejectment for the toll- houses and gates. In the same case it was observed that there was a great difference between a demise of tolls, and of toll-houses. The former only gave a personal in- terest, in respect of which an action for money had and received might be maintained; the latter gave an interest {y) t'airtitle y. Gilbert, 2 Term (j) 2 Bos. & Pul. 222, 223. Rep. 171. 70 MORTGAGES BV TRUSTEES. [ChAP. If. ill land^ which was within the statute of mortmain. The money advanced by the mortgagee would be very ill se- cured, if his only remedy was either an application to the vindictive power of the Court of King's Bench, or a suit in Cliancery, in which all the other thirty-five mortgagees must be made parties. And that, with respect to the ac- tion for money had and leceived, it would be a sufficient defence for the trustees to shew that they had distributed all the money received according to the provisions of the act. (a) Where lands are devised to trustees for the payment of debts, and they convey to the heir subject to the trust, a mortgage made by the heir will be good; and the mort- gagee will not be answerable for the misapplication of the money, (i) But the trustees will be answerable be- cause of their having been guilty of a breach of trust; (c) which, however, may be avoided by their disclaiming the devise. For where a trustee conveys the land to another, he does, in fact, first accept the trust, and that part of the trust which consists in the application of the money he cannot convey away, (rf) And it has now been determined that a freehold may be disclaimed by deed without matter of record, (e) Where a charge is created by will for the payment of debts and legacies, or portions, and the personal estate ts also subject to them, a trustee ought not to mortgage un- til both the personal estate and the rents of the lands have been first applied. (/) And the Court of Chancery will not, in such case, decree a mortgage without first directing (a) Doeexdem. Banks V. Booth, 225. 2 Bos. & Pul. 219. (d) Crewe v. Dicken, 4 Ves. 97, (b) Ilardwick v. Mynd, 1 Anstr. (e) Townsotiy.Tickell,3 Barnw. 109. and Aid. 31. (c) Ilardwick v. Mynd, 1 Anstr. (/) 2 Vcs. 590. IC9. Burt V. Dennett, 2 Bro. C.C. Chap. II.] MORTGAGES BY TRUSTEES. 71 an account of the personal estate,, and the rents and pro- fits of the land, (g) So where the trust is silent as to the mode of ahenation, or has given the trustee a choice of alienation, the Court has evidently shewn a preference to a smaller alienation over a greater, as by directing- a lease at a fine, in the first instance; and if that is insufficient to raise the money, then a mortgage, (h) Upon the same principle a mortgage will be preferred to a sale, (i) And a mortgage of part of the estate will be preferred to a mortgage of the whole; Q) and a mortgage for years to a mortgage of the fee. (/t) But no certain rule can be laid down on the subject, as the mode of raising is liable to be guided by the circum- stances of each particular case; and is, therefore, fre- quently left to the master and the parties. (/) Trustees, however, are not obliged to wait for a decree of the Court for raising the money ; and may exercise their power of discretion of doing it by sale or mortgage: and the Court has always supported it. (?«) But the heir or person in remainder may have the charge raised by a mortgage, if it be more beneficial for him, though the persons entitled to the money oppose it; (w) more particularly if the land, subject to the trust, (^) Berry u. Askham, 2 Vern.26. Dick. 607. Decree in Mosley t». ^Talboty. Duke of Shrewsbury, Clia. Mosley, 5 Ves. 248. Free. 395. King v. Withers, 3 (j) 3 Ves. 239. P. Wms. 414. Ridout v. Dowd- ing, 1 Atk. 418. (h) See the decree in Meynet v. Massey, 2 Vern. 1. Raithby's Ed. («■) See Lord Cowper's decree, and the proceeding thereon. Mills v. Banks, 3 P. Wms. 2. The decree of the master of the Rolls, in Bacon y. Clerk, I P. Wms. 480. Lin- gard V. Derby, I Bro. Cha. Ca. 3 1 1 . P. Wms. 480. 2 Ves. J90. Bell v. Maidman, {k) See sect. 1. ante. (/) As it was in Trafford v. Ash- ton, 1 P. Wms. 419.; and in Mos- ley V. Mosley, 5 Ves. 259. (m) Per J^ord Chancellor Hard- wicke, iu Earl of Bath u. Earl of Bradford, 2 Ves. 590. (n) Warburton v. Warburton, 2 Vern. 420. Bacon v. Clerk, I 73 MORTGAGES BY TRUSTEES. [ChAP. II. be given to one for life^ the Court will not allow the trus- tees to liquidate by rents and profits, as that might exhaust the life interest, (o) But where the trust has expressly limited it to a raising by annual rents and profits, and there is no time limited for payment, a mortgage will not be decreed, though, subject to the charge, the estate be given to one for life, (p) If the tenant for life refuse to shew the deeds so as to enable the trustees to mortgage, the Court will appoint a receiver, (q) Trustees to raise money for the payment of debts may mortgage at any distance of time after the creation of the trust, provided the debts be outstanding, (r) And trustees are not obliged to mortgage to the whole extent of their power at once, but may do it at several times, (s) In a general way the proviso in mortgages, by trustees, will be as it was in the deed stated in Codrington v. Lord Foley, i. e. for redemption on payment by the person or persons, who, for the time being, shall be entitled to the premises comprized in the term immediately expectant on the determination thereof, (t) The covenants, on the part of the trustees, will be confined to a covenant, that they have done no act to incumber. And unless the per- son entitled to the land joins, and is willing to enter into such a covenant, the mortgagee can have no covenant for the payment of the money. If the deed raising the trust to mortgage contain prior estates, or powers given to any other persons except the trustees, the mort- (o) Wihou V. Spencer, 3 P. Wmg. Mad. 47. 174. (r) Redington v. Redington, 1 (p) Ivy V. Gilbert, 2 P. Wms. 13. Ball & Beat. 131. S. C. 2 Bro. P. C. 468. Evelyn v. (s) 2 Term Rep. 725. Evelyn, 2 P. Wms. 659. (0 6 Ves. 369. (g) Brjgstocke v. Mansel, 3 Chap. II.] mortgages by trustees. 7S gage must be made subject to the prior estates^ and to the estates which may be created under those powers, (tt) And if, on the contrary, there be a power to charge and limit a term for raising" the money, a charge under such power will over-reach the other estates limited by the same settle- ment, and a mortgage under such power will take effect of all such other estates, (x) Wherefore, in all instru- ments, creating powers, it is usual to declare what estates the estates limited by virtue of the powers shall be subject to, and what they shall over-reach. Where by act of Parliament a power is given to mort- gage^ the form of such mortgage is frequently prescribed by the act, as we find it done by the 24 Geo. 3. c. 53. (y). But where that is omitted, it seems that the form there prescribed might be effectually used as a guide ; in which case the operative words would be '' mortgage and charge." THE EFFECT WHICH A MORTGAGE SHALL HAVE UPON A POWER WHICH AUTHORIZES A MORTGAGE OR SALE, AND WHEN A TRUST OR POWER TO RAISE MONEY SHALL BE HELD TO BE SATISFIED. Where the trust is by mortgage or sale to raise and pay debts, it seems that if the trustees mortgage the whole for a sum insufficient to answer the purpose, that they are not debarred from exercising their power to sell at any subsequent period. This point was raised, but not decided, in a late case. Graham (Baron) said, (m) Saville v. Saville, cited 1 P. 244. Wms.455. Hall o. Carter, 2 Atk. (i/) 2 Bos. and Pul. 219. 57 356. S. C. nom. Carter v. Carter, Geo. 3. c. 62. Local and Personal Mos. 365. Acts. (x) Beale v. Beale, 1 P. Wms. 74 MORTGAGES RY TRUSTEES. [ChAP. IL that the provisions in the deed of trust were so made as to leave it very doubtful whether the trustee, having chosen the mode of a mortgage and a partial sale, could afterwards, of his own authority, execute those trusts; and of that he had great doubt. He did not mean to say whether the creditors must thereby lose the benefit of the trust, or whether the trusts did not devolve upon a court of equity. In the same case it was noticed that the question had been referred to counsel, who thought the power of sale was gone. But, upon the principle recog- nized by Lord Kenyon, that a power (which is of stricter construction) might be executed at ditferent times, pro- vided the party did not in the whole transgress its limits, (z) there appears no reasonable objection why the trustees, not having at first raised sufficient to answer the pur- poses of the trust, may not afterwards, of their own ac- cord, mortgage or sell. In the same case, the opinion of Chambre, J. in favour of this construction is very strongly expressed: — ''By the mere act of mortgaging, I cannot think" he is reported to have said " the trustees have at all bound themselves. It would be strange to say, that the trustees having by mortgage raised a sum insufficient, the trust must remain unexecuted, and proceed no far- ther. There is no weight, therefore, in that objec- tion." (a) But it is clear that, in a case of this kind, the mort- gagee cannot compel the trustees to make a sale, in order to pay himself off; he has all the remedies, but only the remedies of a mortgagee, (b) And it is very doubtful whether the trustees could sell for that purpose, after having mortgaged to the whole extent of their power, if (z) 2 Term Rep. 725. Zouch v. 722. Woolston, 2 Burr. 1136. (6) Talk y. Clinton, 12 V?8. (a) Onieiod t\ Hardmauj b Ves. 48« Chap. U.} MouTf.AGEs by trustees. 75 they were willing-, (c) From the opinions of both the Judo^es, expressed in Omerod v. Hardman, there is every reason to beheve tliat they could not. If trustees, instead of raising money according to their trust, allow one to enter who receives the rents, the Court will not decree a mort<^age or sale, without first directing an account of the rents and profits received by the person so let into possession, and will hold the trustees answer- able for so much of the rents as he may have re- ceived, {d) And where trustees exceed their power, as where they liave a mere power to raise by leasing- for lives or years, and they mortgage in fee, in which case the mortgage is void, the Court will so far assist the mortgagee as to direct an inquiry how far the land might have been chargeable by leasing, and whether any lives were vacant, (e) If trustees once mortgage to the whole extent of their power, that is, if they once raise as much money as their trust authorizes them to raise, they cannot mortgage again, though the money previously raised hath been misapplied ; for the land hath borne its burden once, and shall for ever afterwards be discharged. (/) (c) 12 Ves. 56. dom. Proc. Carter v. Barnardis- (rf) Okeden v. Okcden, 1 Atk. ton, 1 P. Wms. 318. Juxon v. 550. Brian, Cha. Prec. 143. 2 Ves. 603. (e) Ivy V. Gilbert, 2 P. Wins. 5 Ves. 736. Hutchinson v. Mas- 13. sareene, 2 Ball and Beat. 49. (/) Anon. 1 Salk. 153. lu MORTGAGES TO TRUSTEES. [Chap. II. SECTION IV, MORTGAGES TO TRUSTEES. A POWER to trustees to lend out trust-money on good and sufficient security, authorizes them to lend it upon a landed security ; (g-) but will not authorize a loan upon the mere personal security of a bond, (/i) If the power be to lay out money on real or govern- ment security, it seems that under such authority an investment on a mortgage of leaseholds may be made the words real securities, in the construction of law mean- ing landed securities, (i) The only consideration, there- fore, for the trustees, under such circumstances, seems to be the sufficiency of the security, {k) But trustees or executors for infants, who are not expressly authorized to invest on real securities, cannot lend trust-monies on mortgage of lands, without an express order of the Court; and the Court will not make an order for that purpose, unless under very special circumstances, as where there is a mortgage or charge on the infant's estate. (/) {g) Terry v. Terry, Gilb. Eq. Bowles, 3 Atk. 808. Rep. 10. (/t) In Mills v. Banks, 3 P. (h) Wilkes v. Steward, Coop. Wms. 2. a loan by executors in Cha. Ca. 6. Langston v. Olivant, trust on security of 200 years ib. 33. Holmes v. Dring, 2 Cox 1. term, approved of by the Master. Terry v. Terry, Gilb. 10. (0 Norbury v. Norbury, 4 Mad. (i) See Attorney -General v. l9l. 77 CHAPTER III. OF THE MORTGAGEE. The interest of the mortgagee may be regarded in a two-fold point of view : — 1. His interest in a court of law ; and, 2. His interest in a court of equity. His interest in a court of law is almost exclusively con- fined to his interest in the estate, of which he is con- sidered to every intent and purpose the lawful owner, as tenant upon condition until the condition forfeited; during which time only he is more emphatically, and in a legal sense, called the mortgagee, and as absolute owner ever afterwards. But as equity considers the transaction as a loan of money only, it will prevent this legal interest of the mort- gagee from extending itself so far as to prejudice the mortgagor beyond the claim for the money, except it be by an equitable proceeding. And, as a further conse- quence of this, its first consideration will look also to the interest of the mortgagee in the money. To prevent the first legal consequence of the mortgage deed, which is, that the mortgagee may enter and hold until the time allotted for the performance of the con- dition, or, in other words, until the time allotted for the repayment of the mortgage money, a provision is almost invariably inserted in the mortgage deed, that the mort- gagor shall continue in possession until he makes default in payment of the mortgage money, according to the condition. Under this agreement the mortgagor becomes tenant at will to the mortgagee ; which tenancy at will the 78 OF THE MORTGAGEE. [CllAP. Ill, mortgagee seldom interrupts, unless for the purpose of procuring payment of his principal money or interest. This power of interruption, subsisting in the mort- gagee, may be prosecuted either in a court of law, or in a court of equity. If the mortgagee elects to proceed at law, the mode of his proceeding must be guided by the circumstance of the estate, whether it be in the occupation of the mortgagor, or of a tenant ; and if of a tenant, whether of a tenant claiming under a lease prior to the estate of the mortgagee, or subse- quent. If the estate be in the occupation of the mortgagor, the Ipgal method of acquiring the possession is, for the mort- gagee to proceed by ejectment ; for the law will not allow him to make a forcible entry upon the mortgagor, and so oust him, as that would be an infraction of the peace. And, in such proceeding by ejectment, it is held that the mort- gagor is not entitled to any notice to quit ; for he is, in the strictest sense, a tenant at will (o the mortgagee, (a) And as against the mortgagor, he, the mortgagee, is en- titled to the estate as it is, with all the crops growing on it. (6) But if the estate be in the occupation of a tenant claiming under a lease granted prior to the estate of the mortgagee, the mortgagee may acquire posses- sion by the attornment of the tenant. For, by the 1 1 Geo. 2. c. 19. s. 11. which declared that the possession of the landlord or lessor should not be altered by the attorn- ment of any tenant, an express saving is inserted for at- tornments made by the direction of a court of justice, with consent of the landlord or lessor, or to any mort- gagee after the mortgage is become forfeited. And because by the 4 Anne, c. 16, (c) which took (a) 3 East. 451. (c) See sect. 9. and 10, (b) 1 Terra Rep. 383. - I Chap. III.] of the mortgagee. 79 away the necessity of attornment on grants of reversions, it is declared that no tenant shall be prejudiced by pay- ment of rent to the original landlord^ or by breach of any condition for non-payment before notice. The mort- gagee must give notice of his claim to the tenants, which notice is usually evidenced by their signing a writing, purporting that they have attorned to the mortgagee ; and, as a further evidence of this attornment, though either act would be sufficient, (d) they are in general made to pay a small proportion, as a penny or a shilling of their rent. But though such evidence of notice is frequently ob- tained where the tenants are willing to accord, for the satisfaction of the mortgagee, yet there is no positive occasion for it ; for, under the ninth section of the same statute, any notice will be sufficient to entitle the mort- gagee to receive the rent, as well the arrears which may be due at the time of giving the notice, as all that may subsequently accrue ; and the mortgagee may from that time maintain an action for it, or distrain. So that if the tenant, after such notice, pays his rent to the mort- gagor, or to any other person claiming under the mort- gagor, but subsequently to the mortgage^ he does it at his peril, (e) In Lord Mansfield's time, indeed, a mortgagee was al- lowed to recover possession of the rents by ejectment against a tenant under a lease prior to the mortgage, if he gave notice to the tenant that he did not intend to deprive him of the possession : (/) but that was proceed- ing upon an equitable principle; for the rule of law is, that in ejectment tlie legal title shall prevail, and there is {(1) Lit. sec. 551. Rep. 378. (e) Moss V. Gallimorc, Doug. (/) White v. Hawkins, in note, 279. Lumley r. Hodgson, 1(3 East Doug. 23. Bull. N. P. 96. 99. Birch o. Wright, 1 Term 3 80 OF THE MORTGAGEE. [ChAP. III. no doubt that at this day a mortgagee would not in such case be allowed to maintain an ejectment, (g) But as to any advantage which may accrue by reason of any breach of covenants in the lease, the law with re- spect to the mortgagee is the same as with respect to any other grantee of a reversion, (h) If the estate be in the occupation of a tenant from year to year, at the time of the mortgage, he is entitled to six months' notice to quit ; for the mortgagor could not have recovered in an ejectment against him without such no- tice, and the mortgagee claiming under him could not be in a better situation, (i) And after ejectment the mortgagee may recover all the rent in the tenant's hands which have become due since the mortgage, up to the time of the demise, in an action for use and occupation. (/) If the estate be in the occupation of a tenant claiming subsequently to the estate of the mortgagee, whose lease has not been confirmed by the mortgagee, it is discre- tionary with the mortgagee whether he accepts the rent, and continues the occupation of the tenant, or whether he proceeds by ejectment to recover possession of the land. And if he elects the latter mode, there is no occa- sion for any notice to quit, any more to the tenant than to the mortgagor ; for the tenant, coming in under the mortgagor, cannot be in a better condition than the mort- gagor. And this right of proceeding against the tenant, without giving notice to quit, extends itself to the as- signee of the mortgagee, though the tenancy was created previously to the assignment, provided it was subse- (g) Goodtitle v. Jones, 7 Term (h) 1 Terra Rep» 381. Rep. 47. Doe v. Sybourne, 7 (0 1 T. R. 379, 380. 4 Sch. Term Rep. 2. Serjeant Frere's and Lef. 30. note to Doug. 23, Adams on (j) Birch v. Wright, 1 Term Ejectment, 33. Rep. 378, t^HAP. Ill] OF tHE MORTGAGEE. 8l iquently to the morfg'ac^e, and provided that t]>o tenant never had any possession Under the mortgagee, from \vhence any tenancy could be inferred. The niortf^ag-ee's having- had notice of tlie occupancy is not, it seems, suf-» ficient from whence to infer a tenancy or possession iirider him. (A) The modes in which equity will asisisla mortgagee to liis principal money and interest are principally three: — Ist^ By the appointment of a receiver; 2nd, By an order' for sale; and, 3d, By a decree of foreclosure. A foreclosure, being- the mode by which the mortgagee may acquire the estate absolutely for himself, and by which all relationship of mortgagor and mortgagee may be made to cease, we uill reserve for our future consideration. The two former seem to merit our present more particular regard. The appointment of a receiver of the rents and profits of an estate is generally for the purpose of keeping down the interest on incumbrances. If it be intended that the receiver shall do more than just keep down the interest, it must be specified in the order. (/) A receiver, when ap- pointed, must first give security f<;r the due performance of his office. The appointment is made by the Master under the direction of the Court, and the parties may object to the appointment; and the order to appoint a receiver con- tains also ail order that the tenants do attorn and pay their rents to such receiver, (m) The secu) i(y, which the receiver should give, is a recognizance with two sureties; and the taking an assignment of a mortgage belonging to the re- ceiver instead of it is very improper. (?/) The appointment of a receiver is a juridical exercise of (k) Keech v. Hall, V>ovg. 21. (tn) lilr. Diclcpns' note, 2 Dirli. Thunder V. Belcher, 3 East. 449. G30. (/) Gresloy r. Ai'.dei I17, Swansf. («) Mead v. Lord Orrery, 3 A Ik. 673. "137. 214. S^ OP THE MORTGAGEE. [ChAP. III. tlie nuUiority of the Court of Chancery, which it will sel- dom witiihold where the apphcant is interested in a due application of the profits, (o) And, therefore, where a mortj^agee, after having assigned part of his mortgage, applied for a receiver, tlie application was granted, though the assignee, heing also the tenant in possession, objected to it. (/>) Upon the same principle it seems that a receiver would be appointed upon the prayer of one of two mort- gagees, as joint-tenants, or tenants in common. Where a morlgagee is in possession, tlie Court will not, upon an application by a second mortgagee, appoint a receiver, provided the first mortgagee can swear what sum he believes to be due to him upon the mortgage, (q) Where (he first mortgagee is not in possession, the Court has sometimes refused to appoint a receiver without his consent, on the ground that the first mortgagee may at any time recover the possession by ejectment. (?') Rut it seems that in such case there can be no objection to the ap- pointment of a receiver, if it be made without prejudice to the right of the first mortgagee to recover possession, (s) )iut the Court will not, in general, appoint a receiver to keep down the interest of a prior incumbrance, unless the prior mortgagee refuses to enter, (t) Where a receiver has been appointed on the behalf of a variety of incumbrancers, he cannot afterwards be dis- charged without the consent of all. (ii) Where a receiver is io possession^ a mortgagee cannot (o) 3 Ves. 32. and Wells, 2 Dick. 608. Price v. (p) Archdeacon v. Bowes, 3 Williams, Coop. C.C. 31. Aostr. 752. (*) Bryan v. Cormick, 1 Cox, 422. (q) Codrington v. Parker, 16 Dalmer r. Dashwood, 2 Cox, 378. Ves. 469. Quarrellr. Beckford, 13 (0 1 Ves. 268. Ves. 377. Chambers v. Goldwiu, (m) Largan v. Bowea, 1 Sch. & as cited 9 Ves. 377. Lef. 296. (r) Phipps V. Bishop of Bath Chap. IIL] lo^ TUfe MonxGAftEte. 83 bnn<^ an ejectment williout the previous leave of the rourt, which leave, in a proper case, will be granted as a matter of course, (v) Upon an application for leave to bring an ejectment wliere a receiver is in possession, there is not the same necessity for a reference to the master that the party may be examined pi^o interesse suo prior to its being- granted, that there is where the estate is in the possession of se^ questrators. (x) For both in the case of Angel v. Smith, (i/) and in tlie anonymous case (z) before Lord Eldon, in 1801, in each of which a receiver was in pos- session, an ejectment was permitted without any previous order to be examined pro interesse suo. But it should be observed that there seems to be no just ground for the dis- tinction ; and that the question cannot be considered to be at rest, (a) If a mortgaged estate be in the possession of seques- trators, the mortgagees may have the money in the hands of the sequestrators applied in part discharge of what is due to them upon tlieir mortgage, after paying thereout the sequestrators their costs, and the costs of the applica- tion ; and the sequestrators will be ordered to give up the possession of the estate to the mortgagees, (b) Where the mortgagor becomes bankrupt, the mortgngee cannot prove under the commission, and then resort to hia security for the residue, (c) But he may, under the ge- neral order, first pray a sale of the mortgaged premises j and if the money produced thereby is insufficient to pay the cxpences of the sale, and his principal, interest, and (v) Angel V. Smith, 9 Ves. 335. («) Swanst. 679. 6 Ves. 288. Anon. 6 Ves. 287. Hunt v. Priest, 2 Dick. 5 JO. (x) See and consider the two (b) Walker v. Bell, 2 Mad. 21. cases cited in the last note. llamlyn v. Lee, 1 Dick. 94. (1/) 9 Ves. 335. CO Ex parte Grove, I Atk. 104. (2) 6 Ves. 287. G 2 84 OF THE MORTGAGEE. [ChAP. III. costs, then come in as a creditor under the commission, (d) This order extends only to legal mortgaj^es; for a mort- j^a*^ee of the equitable interest mnst still proceed, as was the practice before the making of this order, by petition and a special order for sale, (e) The ground of which exclusion seems highly reasonable; since on equitable mort- gages, as we may have observed in considering mortgages by deposit of title deeds, the Court is frequently called upon to decide very nice and difficult questions. The va- lidity, therefore, of an equitable mortgage is decided by the Court without a reference to the commissioners; though, when such its validity is established, it will, if ne- cessary, refer it to the commissioners to ascertain what is due upon it, that being matter of account. ( /) But in such case of an equitable mortgage, if there be also a subsequent mortgagee, who has not proved under the commission, or a purchaser of the equity of re- demption, who objects to a sale upon a petition for that purpose by the first mortgagee, the only remedy for the first mortgagee is by bill, (g) For even in the case of a legal mortgage, where the equity of redemption is not in the bankrupt, the commissioners cannot, under the general order, direct a sale; (A) nor can they compel a second mortgagee, not claiming under the commission, but relying upon his security to join in a sale obtained by a first mortgagee, (i) The only way, therefore, to make a title in this case is for the creditors to redeem both mort- gages. But if the second mortgagee be present at the (d) General Order, 8th March, parte Fisher, 3 Mad. 159. 1794. Stated at length, 2 Cooke's (/) Ex parte Jennings, 1 Mad. B. L.284. Whitmarsh's B. L. 478. 331. 4 Bro. Cha. Ca. 5 IS. (5) Ex parte Topham, 1 Mad. 38. (e) Ex parte Payler, 16 Ves. 435. {h) Ex parte Topham, 1 Mad. 38. Ex parte Donald, 6 Feb. 1806, con- (0 Ex parte Jackson, SVes. 357. tra, there said to be questioned. Ex 1 Mad. 38 11. Chap. HI.] of the moiitgagee." 85 time the order for sale is made, nnd suflcr the sale to go on, lie cannot afterwards o!)jcct to joininj;-. (k) It is no answer to an application by an equitable mort- aairee for sale (hat the lease contains a provision for for- feiture in case of an assignment without the lessor's licence, and that no licence has been obtained, because the lessor may waive the forfeiture; and as against the assignees the njortgagce has a right to avail himself of the advantage he has by possession of the lease. (/) A mortgagee having once elected to prove, under the commission, as a creditor, cannot afterwards retract, 9nd belake himself to his security, (m) A sale by a mortgagee, under the above-mentioned ge- neral order, is liable to the auction duty, (ii) The mortgagee may pursue all his remedies at once, as bring an ejectment to recover possession of the land, an action on the covenant to repay, and a bill of foreclosure at the same time; and equity cannot stay the proceedings at law, unless the mortgagor will bring the money into Court, according to the provisions of the 7 Geo. II. (o) But if the mortgagee have it not in his power to put the mortgagor in exactly the same situation that he was prior to the mortgage, the Court of Chancery will restrain the proceeding until such time as he caii; and in the meaji time order the money into Court. Thus vvhere a mort?' gagec had parted with the title deeds, and then instituted proceedings at law, an injunction was granted to stay the proceedings; and it was referred to the master to compute what was due for principal, interests, and costs, and the (A) Per Loughborough, Chan, in (n) Coare v. Creed, 2 Espi. 699, Ex parte Jackson, 5 Ves. 358. The King v. Abbot, 3 Pri. 178. (0 Ex parte Baglehole, 1 Ro. Ba. (o) Rocs v. Parkinson, 2 Ansf r. Ca. 432. 407. Burnell y. Martin, Doug. 417, (;«) Ex paite Downes, J8 Yea. 2 Ves. 67g, 2S0. 86 OF THE MORTGAGEE. [Chap. 111. costs of the proceeding at law; and it was ordered that the money should be paid into the bank to remain until the title deeds could be given up, and a reconveyauce had. (/?) And where a mortgagee died without any heir that could be discovered, the Court restrained the executor of the mortgagee from proceeding at law to compel pay- ment of the money, there being no heir who could re- convey. And the money was ordered into court until the executor should find the heir. The cause remained ia court many years, until at last it was thouglit worth while to get an act of Parliament to revest the estate, on an al- legation that the heir could not be found, and the crow a giving its consent, (q) So, if there is ground to presume the mortgage satisfied, the court would decree an itijunction to slay proceedings at law till that is determined. (?) A mortgagee may also pursue his dilTercnt remedies suc- cessively, and in any order he pleases. Thus, after having foreclosed, he may maintain an ejectment to recover pos- session ; (s) or he may sue on the covenant or bond: and equity will not, in such case, grant an injunction to stay the morigagce's proceedings at law, unless the mortgagor will pay the money into court. (/) But if a mortgagee, after having obtained a foreclosure, sells the estate ; and six years afterwards, the produce of the sale being insufficient to pay the debt, brings an action for the residue or balance, ^vhich is inconsiderable; the court, under these circumstances, would restrain the mort- gagee from proceeding at law. (m) But if there was any (p) Schoole V. Sail, 1 Scho. & Sutton v. Stone, 2 Atk. 101. Lcf. 176. (q) Case stated by Lord Rcdes- dale, 1 Scho. and Lef. 177. (r) Booth V. Booth, 2 Atk. J 13. (s) Pyer. Daubuz, 2 Dick, "j'J. (0 Aylet V. Hill, 2 Dick, 551, Tooke V. Hartley, 2 Dick. 783. S. C. 2 Bro. C. C. 12J. (k) Perry v. Barker, 13 Vei, IDS. S. C. 8 Ves. 537. Chap. III.] of the mortgagee. 87 chance that tlie mortgagee could get back the eslale from the vendee, in order that he might rcconvey to the mort- gagor, if he chose to redeem ; there, it seems, that equity would not make a perpetual injunction against the mort- gagee, (x) Where, however, the mortgagee, after a foreclosure, proceeds on the bond or covenant, it will open the fore- closure. (?/) If the mortgagee or his assignee, in the name of the mortgagee, as it must be, bring an action upon his bond, the morlgagor shall pay no more than is actually due : but if, upon the covenant, (he account must be settled in that action. (:r) In debt, where the plaintiff declared that the defendant bound himself, his heirs, executors, and administrators, to pay the mortgage money, upon iion est factum pleaded, and it appearing that the defendant bound only himself, his executors, and administrators, it was held by the court that the variance was immaterial, both in consequence and effect, whether the defendant bound his heirs or not. And, per Bayley, J., the judgment would bind his heirs, vvhe» thcr he bound them by the deed or not. (a) If morlgage money be secured to be paid by instal- ments, and also by a warrant of altorney, the condition of Vr'hich is, that no execution be issued until default made iu payment, with interest as aforesaid, by the instalments and in manner hereinbefore mentioned ; one default will entitle the mortgagee to take out execution for the whole. And, per Dampicr, J., " 1 doubt much if, in point of law, the party could take out a second execution." (b) (jc) 13 Vcs. 20.5. (t) 4 Ves. 129. (i/) Dash wood v. BIythway, 1 («) llamborough v. Wilkie, 4 Eq. Ca. Abr. 317. pi. 3. and cases Maul, and Selw. 474. note, cited in two la>>t notes. But upoij (b) Leveiidge v. Foily, 1 Maul, this bee vnox^ pujt in Chapter on and Selw. 7U6. Fofedo'suie, 3 88 OF THE MORTGAGEE. [ChAP. III. In like manner, where the mortgagee agrees (o let the principal remain for a certain time, unless the interest shall at any time be in arrcar, one default in payment of the interest, will entitle him to call in his money, (c) The 7 Geo. 2. c. 20. after reciting that mortgagees frc^ quently bring actions of ejectment for the recovery of lands, and bring actions on bonds given by mortgagors to pay the money secured by such mortgages, and for per- forming the covenants therein contained ; and likewise commence suits in equity to foreclose their mortgagors from redeeming; and the courts of law, where such eject- ments are brought, have not power to compel such mort- gagees to accept the principal monies and interests due on such mortgages and costs, or to stay such morlgagees from proceeding to judgment and execution in such actions, but such mortgagors must have recourse to a court of equity for that purpose ; in which case, likewise, the courts of equity do not give relief until the hearingofthe cause, enacts ''that where any action shall be brought on any bond for pay- ment of the money secured by any mortgage, or perform- ance of the covenants therein contained, or where any action of ejectment shall be brought in any of the Courts at West- minster, the js his own fault, (s) And if a term be mortgaged, and a receiver appointed to keep down the interest of incumbrances, the mortgagee cannot, after the expiration of the term, have the money in the receiver's hands applied in discharge of hi» mort-' g-age, but the surplus will be held to have been received for the benefit of the mortgagor ; (t) for the court will not extend the order appointing the receiver for the benefit of the incumbrancers beyond what it is expressed to be. But where a mortgagor is guilty of fraud in receiv- ing the rents, he will have to account for them to the mortgagee, (u) Another legal consequence of the mortgage, in wbieh (p) Skinner v. Stacey, 1 Wils. and Bea. ?52. Colmant;. Duke of 80. St. Alban's, 3 Ves. 25. Drum- (q) Cadlev. Fowle, 1 Bro. C.C. mond v. The Duke of Sf. Alban's, 515. 5 Ves. 433. Swanst. 579. (r) Higgins v. York Buildings (0 Gresley v. Adderley, Swai^st, Company, 2 A(k. 107. Mead v. 573. i,ord Orrery, 3 Atk. 244. (w) 3 Alk. 'iH, (>) Ex parte Wilsou, 2 Veij. CniP. Ill] OP frtE MORTGAGEE^ 93 equity has not thoui^ht proper to interfere, is that th« mortgagee of the whole term under a lease is answerable for the rents and covenants, (x) Lord Mansfield, in the case of Eaton v. Jacques, (^) had decided that this liability did not attach till the mortgagee took possession ; and this was for a time taken for law : (s) but the principle of the de- cision was never liked (a) till in a late case its authority was completely over-ruled, with the unanimous consent of ten Judges ; (b) and the old rule established, (c) Therefore, whether the mortgagee take possession or do not take possession, it is now immaterial ; for he will be equally chargeable with the rents and covenants. In order to guard against this liability to payment of rent and performance of covenants, the mortgage oughf, to be taken for a term short of the original lease, so as to! leave a reversion in the mortgagor, who on account of this reversion, though it be for a day or two only, as is gene^ rally the case, will at law be compellable to save harmless the mortgagee from the rents and covenants to the original landlord, should the mortgagee take possession, and the original landlord distrain ; and will, whether the mort- gagee take possession or not, prevent the original lessor from maintaining an action of covenant against him, (d) And if the mortgage of a lease be made by deposit, there should always be a memorandum taken of the in- ti?nlion to mortgage for a derivative term only ; as other- {x) Pilku»g<6n r. Shaller, 2 Vern. 500. 374, (b) Williams r. Bosnnquef, 1 (j/) Doug. 433. Bio. and Bing. 23S. S. C. 3 Moor- (t) Greltono. Dlggles, 4Tauiit. 500. 766. Walker v. Reeves, Doug. (c) Sparkes r. Smith, 2 Vcni. 44 1. note 1. 276. Pilkiugton v, Shallcr, 2 Vern. (a) See the arguments and jutig- 374. ment in Williams v. Bosanquet, 1 () Whetstone t'.Saiusbury, Cha. Mod. 57. riec. 591. J Chap. III.] op the mortgagee. 109 run away. The Master of the Rolls looking upon the estate made by the owner as a graft into the original stock, and the benefit of it above the rent reserved as arising in consideration of the former title^ decreed the trustees to make a new mortgage to tlie mortgagee, (s) On the other hand, if the mortgagee renew, the re- newed term will be like the former subject to the equity of redemption in the mortgagor ; and the extent of the mortgagee's interest therein will be his claim for prin- cipal, interest, and expcnces of renewal, with interest, (t) In Ireland, where the lessor brings an ejectment for non-payment of rent, the lessee has six months allowed him for recovering his lease, on puttiug the lessor in staUi quo : but if the lease be in mortgage, the mortgagee has nine months allowed to him for that purpose, (m) And it has frequently become a question, whether the mortgagee by redeeming the lease after the expiration of the six fnonths, and before the expiration of the nine months, be- comes a trustee for the mor, (z) In Wiiineu, Bampton, 3Atk. 3 Atk. 559. Dymoke v. Hobart, 477. iBro. P. C. 81. (o) Cora. R. 609. Gaily v. Sel- (A) See Gardiner v. Griffith, 2 Chap. III.] of the mortgagee. HI If the mortgagee should present without tlie consent of tlie mortgagor^, the Court of Chancery would make an order for the mortgagee to revoke and countermand his presentation, (c) And if he should bring a quure impcdit to compel admission, it would decree an injunction to stay proceedings thereupon, {d) Htit, in order to obtain this relief, it is necessary, as it seems, that the mortgagor should offer to redeem ; tV)r he cannot insist on having the ])enerit of the presentation, and then leave the mortgagee to his security, as by this means the mortgagee ndght never be paid, (e) And furtiier it is necessary tirat the time limited for a quare impcdit be observed ; tor, if the mortg-agor do not bring his bill within six calendar months after the death of the last incumbent, the presentation made by the mortgagee must stand. Thoiiglj Lord Chan- cellor King, in the spirit of the statute, (/) declared that, if a quare impcdit were brought within the six months, and the bill preferred after the six months^ the court might give directions in aid of the quart impedit. (o) If the mortgagor commit simony, the mortgagee can- not, as against the crown, present, {h) After foreclosure, or when the mortgage has become irredeemable, it follows, as a matter of course, that the mortgagee may make an absolute presentation, {i) Lord Hardvvicke, in a case before hitn, said that tlie mortgagee of an advowson, instead of bringing a bill of P. Wms. 404. and Lord Hard- c. 5. wiclie's comment thereon, 3 Aik. («■) Gardiner v. Griffith, ^ P. 659, 560. 2 Fonbl. Treat. Kq. 257. Wms. 404. umrmed D. P. 3 Alk. (c) Jory o. Cox, Cha. Prec. 71. Soi*. (rf) Amhurst c. Diiwling, 2 Vern. (/t) Attorney General v. Hes- 401. Dyer v. Lord Craven, Diclc. keth, 2 Vern. 349. S. C. Cha. Pr^. (562. 214. (e) See Dyer «. Craven, Dick. (?) 3 A(k. 45S. note. Dyer v. 662. 2 Vern. 401. Cha. Prec. 71. Craven, Dick. 602. (/) \Ve:,{m. 1. 13 Edw. I. st. 1. lis OP THE M0IlT6AfiEfi. [ChAP. Til. foreclosure should have prayed a sale; (k) which, we may observe, must have been said with a view to influence the mortgagee no further than will arise from the consider- ation, that a sale may be decreed immediately ; but a decree of foreclosure always gives a day to the mortgagor to re- deem, which time may afterwards be enlarged ; so that on a bill of foreclosure there is a greater chance of the incumbent dying during the continuance of the mort- gage. How far the law of escheat shall apply to mortgages^ it is not yet settled. The general principle of the cases which have been decided upon trusts might almost be said to be applicable, if it were not that a trust and a power of redemption have in this particular been sometimes at- tempted to be distinguished. But as there are dicta upon the subject, which may eventually influence the law, it may not be improper to notice them. In the celebrated case of Burgess v. Wheate, (Z) where the case arose in argument, the Lord Keeper, Northington> and Sir Thomas Clarke, M. R., both expressed themselves. The former thus : — '' It was said, if a mortgagor die without heir, shall the mortgagee hold the land free ? I answer, shall it escheat to the crown? INo ; because, in that case, the lord has a tenant to do his services, and that is the whole he is entitled to in law and equity. What the justice might be between the mortgagee and executor, I shall not trouble myself about. 1 think the crown has not an equity on which to sue a subpoena." (fn) As between the mortgagee and lord claiming by escheat. Sir Thomas Clarke agrees with the Lord Keeper; as between the mort- gagee and executor, he is more particular. " Then it was {k) Mackensie v. Robinson, 3 (m) This is as Blackstone states Atk. 559. it; in Eden, Vol. I. png. 255, 256. (/) 1 Blackst. 123. 1 Eden, it is much fuller. 177. J Chap. III. J of the mortgagee. 113 said, suppose morfgag'or die without heir, shall Ihe mort- gngee hold the estate absolutely? And if he demands his money too against the i)ersonal representative, shall he have bodi land and money ? If the mortgagor die without heir or creditor, I see no inconvenience if the morlgagee held it absolutely. In the case of a forfeiture for treason, it is certain the crown might redeem, as in Sir Salathiel Lovel's case (n) And as to the supposition, that the mortgagee may demand his money too, that must be where the morlgagor dies without heir; therefore, the demand must be against the personal representative. I think the court would compel the mortgagee to reconvey ; not to the lord by escheat, but to the personal represent- ative ; and, if necessary, would consider the estate re- conveyed as coming in lieu of the personalty, and as assets to answer even simple contract creditors. Under these circumstances, where is the great inconvenience?" It has not yet been expressly decided whether a mort- gage is redeemable in the hands of the crown ; nor is the question likely to arise ; since the statutes of the S9 and 40 Geo. 3. c. 88. s. 12. and 47 Geo. 3. sess. 2. c. 24. enable the crown to make a grant of all lands escheated or forfeited to it, nt de jure corona, or in right of the duchy of Lancaster to any trustees or otherwise, (o) But the expressions cer- tainly have been, that a mortgage in the hands of the crown is not redeemable ; and that the crown cannot be com- pelled to convey, though the equity against the King has been distinctly recognized. Lord Hale seems to have been aware of the importance of the question, and at the same time to have formed a settled opinion nj)on it. In Pawlett V. The Attorney General, (p) he notices a case (n) 1 Salk. 85. Lef. 177. case there cited by Lord (o) See SiiiUh n. Bickneli, cited Redesdale. 3 Ves. and Bea. 51. 1 Sriio. and (;j) Hard, 4G5. I 114 OF THE MORTGAGEF-. [ChAP. 111. of the Earl of Cleveland, before the House of Lords, wherein it was made a question — 1st. Whether or no there be a right of redemption against the King? And, 2dly. If there be, what remedy must be taken ? To the first of which he states himself to have answered, that as he took the law to be, in natural justice, redemption of a mortgage did lie against the King. But to the other question he made no answer, because he took it to be a point of great importance. But his opinion was, that the King could not be compelled to reconvey, but that an amoveas manum only lay ; saying that this was all that could be done, if the trustee forfeited the estate. In the principal case of Pawlett r.Tlie Attorney General, wherein the merits of the question did not arise, he holds to these opinions. The result of Hale's opinion, therefore, was that there was an equity, but not a right, against the crown ; that the crown would grant the lands to the mort- gagor, (though he was uncertain in what manner the ap- plication for a grant must be made,) but was not com- pellable thereto. () Indeed, this rule is carried so far, and very properly, that if the mortgagor, without notice of the assignment, make any payment to the ori- ginal mortgagee subsequent to the assignment, such pay- ment must be allowed by the assignee, though the as- signment of the mortgage were registered. (y-C!eneral, in this case, were (r) Ex parte Brydges, Coop, decreed to be paid by tiie plaiiitifls, Cha. Ca. 290. the mortgagors. (s) E.i^ parte Cant, lOVes. 554. (u) Wctherell i'. Collins, 3 Mad. See also Feariis v. Young, 10 Ves. 2bb. 184. (.r) Skipp u. Wyatt, 1 Cox, 3.^3. (/) Smith y. Bitknell, 3 Ves. & (.//) Robjon v. Stokoe, 3 Ves. & Bea.ol. u. Trum the Register's B^a. 61, 134 OF THE MORTGAGEE. [CllAP. 111. general order for sale^ on the mortgagor's becoming a bank- rupt, will not be entitled to the costs of his petition. (2) Rut the rule is otherwise, if he has any writing expressing the terms upon which the deposit was made, (a) If the niorlgagcd estate of a bankrupt be sold under this general order for snlc, and the mortgagee himself beconjes the purchaser at the sale for a sum less than the nioncy due upon the mortgage, he will be liable to pay the solici- tor, under the commission, all the expences of bringing- the estate to the sale, (b) In questions between mortgagor and mortgngec, if the mortgagee insists upon a point which is only doubtful, he will be allowed his costs, (c) An issue at law having been directed on a bill to redeem, shews that there was weight in the objection, and that the conduct of the mortgagee was not vexatious so as to make him pay the costs of it. {d) And on a bill by a first mortgagee, if a sale be directed with the consent of a second and third mortgagee, and the produce of the sale prove insufficient to pay them all; the costs of the sale must be paid in the first place, (c) As between several mortgagees each is paid his debt, principal, interest, and costs, according to the respective priorities. (/) If a mortgagor, on a bill to redeem, sufler a decree to be taken, referring it to the master to take an account of what is due for principal and interest, in the usual manner, in- cluding costs, it will be too late for him to object to the mortgagee's being entitled to costs, though the report find the mortgagee overpaid, (g) (=) E\ parte , 2 Mad. 281. 205. (a) Ex parte Biightens,Swaast. 3. (rf) Wilson v. Metcalf, 3 Mad.45. Ex parte Trew, 3 Mad. 372. Ex (e) Keuebel r. Scrafton, 13 Ves. parte Garbutf, 2 Ro. B. C. 78. 370. (6) Bowles V. Perriog, 2 Bro. -Sc (J) Wortley v. Biikhead, 2 Ves. Bing. 457. 575. (t) Perry y. Baiker, 13 Veb. 198. (g) Gilbert v. Golding, 2 Anitr, Chap. III.] of the mortgagee. 1S5 The costs to which a mortgagee is entitled are not taxed as in an adversary suit: but he is allowed all his costs and expences, as is done in the case of a solicitor, {h) And, if at law the niortgHgee has been decreed taxed costs only, equity will help iiiin to his full costs. (/) Devises of estates by mortgagees in fee and trustees are generally construed by the same rules of construction; and the cases to be met with upon the subject seem very much blended. The modern rule with respect to devises by trustees, as collected by Lord Eldon, is this, that " a will, contain- ing- words large enough, and no expression in it authoriz- ing a narrower construction than the general legal con- struction; nor any such disposition of the estate as is un- likely for a testator to make of any property not in the strictest sense his; as complicated limitations: nor any purpose at all inconsistent with as probable an intention to vest it in" any person " as devisee as to let it descend" then there is no " case in which a mere devise in general terms, without more, where the question of intention can- not be embarrassed by any reasoning upon tlie purpose or objects, or the person of the devisee, has been held not to pass the trust estate, "(/) But ''that where general words are used, and upon the will the testator makes a disposition in- consistent with the disposition of that which is not his own, you confine the general words." (A) There is, however, one circumstance connected with the law of mortgages, which may be brouglit forward as evidence of intention against mortgaged estates passing by a general devise, which the estates of trustees have not. And that is, that a 442. Owen v. GrifTith, Amb. 520. (/) Ramsideii u. Langley, 2 Vern. Lord Trimleston v. Hamill, 1 Ball. 536. & Beat. 386. (J) 8 Ves. 436. {h) I.omax t\ Hide, 2 Vcrn. 185. (k) 10 Ves. 103. Hunt V, Fowne^j " Ve:. 70. 136 OF THE MORTGAGEE. [ChAP. 111. mortgage is considered as part of the personal estate of the mortgagee. And to this circumstance great deference has been paid, both by the courts of law and equity, in construing devises by mortgagees. In conformity to these rules, if a mere trustee devise ge- nerally to A. and his heirs, the legal estate in the trust property will pass to A., clothed with the original trust. (/) But if a mortgagee devise all his real estates, or, wiiich is the same thing, devise his lands, tenements, and heredi- taments, generally to A. and his heirs, and there is nothing in the will to shew that he considered his mortgaged estate as part of his real property, there, it seems, that the mort- gaged lands shall not pass by such general devise, (m) And in favour of this construction a very strong argument is furnished by a case in the King's Bench : (n) there, a mortgagee in fee of copyholds in the manor of Wykc Regis, in the county of Dorset, having also other lands in the same manor, and having surrendered them all to the use of his will (as to the mortgaged estate, subject to the condition for redemption,) devised all his lands, tenements, and hereditaments, within and parcel of the said manor of Wyke Regis, and also all other his lands, tenements, and hereditaments, in the county of Dorset, to his son H. W., and A. his wife, and to the heirs of the body of his said son II. W., on the body of the said A., with remainder to the testator's right heirs. The testator also devised to H. W. all his goods, chattels, and personal estate. Two points were made, 1st, Whether any estate tail was created in the mortgaged premises, which depended upon their passing by the devise as real estate. And, 2ndly, (0 Braybroke y. Inskip, 8 Ves. tliisTreatise; and Attorney General 417. V. Vigor, 8 Ves. 276. (;«) 1 Atk. 605. As to which (n) Martin v. Movvlin, 2 Burr. see 5 Term Rep. 65 1. 8 Ves. 437. : 969. but see the other cabeii mentioned in 1 Chap. 111.] of the mortgagee. 137 If any cslatc tail was created, whether it was barred. The Court having taken two days to consider. Lord Mansfield dehvered tlicir resolution, as to the second point, that if an estate tail was created, it was well barred: jf but, as to the first point, he held that the testator had given it as a debt for the payment of his debts and lega- cies. " 1 give and bequeath to my son II. W. all my goods, chattels, and personal estate whatsoever, he paying my debts, legacies, and funeral expences." Tiiat there I was nothing to controul this but the general words, *' ail '' my lands, tenements, and hereditaments, within and parcel of ihc said manor, &c." But his creditors and legatees had a right to have it considered as personal estate. That he meant to pass it as a debt; and, consequently, that the mortgaged estate had not passed by the devise of the real estates. Now this case, we are to observe, was decided previous to the rule wiiich has since been held, that tlie devise of an estate tail is a presumption that estates held in trust shall not pass; (o) that this circumstance is not so much as noticed by Lord Mansfield as any wise influ- encing the judgment ; but the whole of the argument on the first point turns upon the question, whether the testa- tor meant to dispose of the mortgaged estate as land, or as a bequest of money only. So in a case before Lord Eldon, where a testator, being entitled to a mortgage in fee, devised " all and singular his messuages, tenements, lands, hercditamenis, and pre- mises, and all his real estate, of what nature, kind, or qua- lity soever, and wheresoever, charged with tlie payment of an annuity of twenty pounds to his brother for his life; the Court said that tlie charge of twenty pounds per annum might last longer than the mortgage, which was enough to shew that he did not mean to charge the (o) Attorricy-General t'. Buller, Ves. 571. See also 8 Vcij. 437. b Ves. 339. Ex parte BrcUclI, 6 138 OF THE MORTGAGEE. [ClIAP. III. mortgag-ed estate as real estate, and that it was not charged upon the personal estate. (;;) The foregoing' cases seem to settle a question which has sometimes been made ; () So it is equally certain, that if a testator have no pro- perty in Dale, except what are mortgaged to bin), and he devises all his messuages, lands, and hereditaments in Dale, that in such case, in order to give some effect to the devise, that the mortgaged lands must pass. And this, although the devise be made to uses in strict settle- ment, (c) (x) See tliR judgments in Doe v. Ves-. 276. Parratt, 3 Term Rep. 65 4. Roe {b) Ex parte WliKacre in le dem. Reade o. Reade, 8Tenn Rep. Vallis. At the Rolls, 'i2d July, 118. 1 Saund. on Uses, 287. 1807, stated 1 Saunders on Uses, (j/) Butlei's Co. J-.it. 203 a. 283. in tiie note. Aud see Kx parte note (1.) Sergison, 4 Ves. 1 17. Duke of (s) Practical Points in Convey. Leeds v. Monday, 3 Ves. 348. as 106. pi. 208. Co. Lit. 20.^ a. note 1. explained 5 Ves. 341. note. (a) Roe f. Reade, 8 T. R. 118. (<) VVoodhouse v. Meredith, I Strode y. Ru5i,ell, 2 Vern. 62L 8 Mcr. 430. Clarke y. Abbott, 2 110 OF THE MORTGAGEE. [CllAP. III. But_, though lands mortgaged in fee may pass by words which are more apphcable to personal property ; yet it is still necessary that the will be executed according to the solemnities required by the Statute of Frauds, (d) If, indeed, at the time of the devise the estate has be- come irredeemable in the hands of the mortgagee, either by length of possession, or by a release of the equity of redemption, or under a decree for foreclosure, the mort- gaged estate must be considered as part of the real pro- perty of the devisor, and will pass by a devise applicable to real estates in general, (e) And tiie rule will be the same if, after the making of the devise, the estate becomes absolute in the mortgagee by any of the above means. And in such case there is no equity between the heir and executor, or between a devisee and executor. Nay, for the purpose of including mortgages in a will, where there has been no claim by the mortgagor, a release of the equity of redemption may be presumed. (/) Though in most of these respects the old rule was otherwise, (g) Where there had been a decree for foreclosure nisi, and the mortgagee devised generally, and died before an ac- count taken, or the mortgagor absolutely foreclosed, the court held that as between the devisor and devisee the mortgaged estate should be considered as realty : but, if assets fell short, it was to be considered as personal estate for the payment of debts. (A) But in a late case it was held, that though there has been a decree for account, yet a mortgage should not p^ss by a general devise of lands ia Eq. Ca. Abr. 606. S. C. Barnard (/) Attorney General v. Bow- Ch. U. 457. yer, 3 Ves. 714. 724, 725. S. C. 5 (il) 2 Burr. 978, 979. 3 Ves. Ves. 300. 303. S. C. 8 Ves. 277.; and Bea. 49. 6 Cru. Dig. 73. but see Thompson v. Grant, 4 Mad. (t) Doeu.Parratt, 5 Term Rep. 438. 652.; and see the cases cited in (g) 2 Vern. 625. the two subsequent notes. (A) Garret v. Evers, Mos. 364- Chap. III.] oP the MORtfiAnEC. 14 1 strict settlement, by a will executed antcciedent to the final order of foreclosure, (i) A devise of a certain sum of money UpOn mortgage does not carry the interest due; at the time of the death of the testa- tor, (A:) in the same manner as a beques^t of the interest, or the arrears of a mortgage, will not carry the principal. (/) A devise of a mortgage, or of a sum of money out upon such a mortgage, is a specific legacy, and not liable to abatement. (??/) But a devise of money on mortgages will not be adeemed by payment in the testator's lifetime, whether such payment be voluntary or compulsory. (») A bequest of all a testator's property in a particular house, of whatever nature or kind tiie same may be, will not pass a mortgage and a bond, a collateral security thereto, which are found in that house ; and the testator having excepted a particular chose in action is not evi- dence sufficiently strong of his intention to the con- trary, (o) Money secured by mortgage is within the mortmain act, 9 Geo. 2. c. 36. and cannot be devised to a cha- rity, (p) But the two Universities, their colleges, and the scholars upon the foundation of Eton, Winchester, (0 Thompson t). Grant, 4 Mad. and Lef. 318. Moore v. Moorp, 438. 1 Bro. C.C. 127. (/f) Roberts v. Kuffin, Barnard (/;) Altomey General v. Mey- Ch. R. 259. S. C. 2 Alk. 113. rick, 2 Ves. 44. Attorney Gone- (/) Hamilton u. Lloyd, 2 Ves. ral v. The Earl of Winchelsea, 3 jun. 416. Bro. Cli. Ca. 373. Pickering r. (;«) 1 Atk. 508. in Lawson v. The Karl of Stamford, 4 Bro. C.C. Stitch. 214. While u. Evans, 4 Ves. 21. (n) Attorney General o. Parkin, Kiiapp r. Williams, 4 Ves. 430. Dick. 422, S. C. Amb. 56ti. Ilamb- note, (a mor(ga2;e on turnpike ling r. Lister, Amb.401. LeGrice tolls), llowse d. Chapman, 4 Ves. V. Finch, 3 Mer. 50. 542. Johnston v. Swann, 3 Mad. (o) Fleming v. Brook, 1 Scho, 457. 142 OF THE MORTGAGEE, [ChAP. III. and Westminster, being- excepted out of this act, a devise to them will be good, (q) Where a morlgage has become vested in one person as tenant for life, with remainder in fee to another, the old rule was, that upon payment of the mortgage money the tenant for life should be entitled to a proportion of the principal. In Brent v. Best, before Lord Nottingham, which seems to be the only case in which the question immediately arose, the ordinary rule of the Court in such case was said to be, that one-third of the money should be paid to the tenant for life, and the two-thirds residue to the remainder man. (r) But then, at that time of day, it was also the rule that if an estate, subject to a mortgage, were devised to one for life, with remainder over in fee, the tenant for life should pay one-third of the principal mo- ney ; so that in such cases the interest of a tenant for life seems to have been accounted in the proportion of one- third to the whole, (s) Now the inconvenience of this rule in tlie latter instance being early felt, has been long since removed ; and, by a variety of decisions, it is now fully established that a tenant for life, instead of paying' any proportion of the principal mortgage money, shall be bound to keep down the interest of the whole ; so that at this day there can be no doubt that the rule, as stated in Brent v. Best, would not hold ; on the contrary, that the rule in the opposite case would hold also in the case of a mortgage being settled upon one for life, with remainder to another in fee, and that the tenant for life would in such case be entitled to the interest of the whole mortgage money during his life, which might be effected by directing the mortgage money, if paid off, to be laid out in land, to be (q) Attorney General v. Parkin, ton, 1 Vern. 4. Dick. 422. S. C. Amb. 566. (s) Cornish v. Mew, 1 Cha. Ca. (?) 1 Vern. 70, See also the se- 271. ; andsee postj chap. 5. coud observaliou in Winn r. Little- Chap. Ill ] or the MORTCAGEfi. 143 isettled to tlie uses of those devised ; and the convenience of this rule will most fully ap})ear by considering how dif- ficult it would be to settle the proportions, if, instead of being given to one for life, with remainder over in fee, the mortgaged estate should be limited to a variety of uses in strict settlement. (/) In the case of a mortgage in fee, where the mortgagee has been for a long time in possession, so that it is doubt- ful whether the equity of redemption be extingui«l,ed or not ; or in any case where it is doubtful whether the mort- gage be real or personal estate, and the mortgagee is about to make his will ; the way is, to devise it us being part of the testator's real estate, and direct that if it shall be de- creed redeemable, then the money to be laid out in lands, and conveyed to the person to whom the devised lands were given as real estate. (?/) If the tenant for life die in a broken part of the quarter or half-year, the interest on the mortgage will be appor- tioned ; and what is due from the last day of payment to the day of the death of the tenant for life will be paid to his personal representative, and the residue to the re- mainder man. (x) In which respect the interest on a mort- gage differs from the dividends on stock, and from rent re- served on a lease by the owner of the fee. (y) If two persons lend money on a mortgage, which is made to them jointly, though at law both the land and money would survive, they are tievertheless tenants in common, as to the money, in a court of equity ; for equity presumes that each meant to lend his own, and take back his own. (z) (t) See and consider Wliitaker u. (:c) Edwards ti.Countess of War- Wbitaker, 4 Bro. C. C. 31. Noys wirk, 2 P. Wms. 171. 73. Mordaunt, 2 Vorn. 58l» Cot- (t/) Wilson v. Ilarman, 2 Ves. ton V. lies, 1 Vein. 271. 67'2. (w) Bradley's Prnct. Points in (z) 3Ves. 631. 2 Ve?. 258. Conveyancing, G2. pi. 131. i4i OiP THE MORTGAGEE. [ChAP. III. And the Court will not allow (he money to survive, though, one of the mortga*^ces being dead, it be after- wards paid on the day appointed, according to the con- dition, (a) And if two tenants in common put out money as joint executors, it shall not survive, but shall go respectively to those persons who are the proper representatives of each. (6) In consequence of which principle, the executors of the deceased mortgagee should, on transferring or retrans- ferring the mortgage, be a party to direct the surviving mortgagee to convey ; for, as to the amount of the money advanced by the deceased mortgagee, the surviving mort- gagee is a mere trustee for the executors of the deceased mortgagee, (c) And if two persons, being mortgagees, purchase the equity of redemption^ (d) or foreclose, (e) they shall hold the land as tenants in common. But if a voluntary mortgage be made to two, and no intention of the party to make a severance appears, it will survive. (/) So if a husband lends out money on mortgage, in the name of himself and his wife, and then dies, the wife is entitled to the survivorship, on the presumption that it was intended as a provision or advancement for her. (g) Thouo'h it has been said, that if there are creditors, the husband and wife being joined in the security would not avail her against them. (/?). The interest which a husband on marriage acquires («) Petty V. Styward, 1 Cha. 292. Rep. 31 . S. C. 1 Eq. Ca. Abr. 290. (e) 2 Ves. 258. (&) Partridge v. Pawlet, 1 Atk. (/) 3 Ves. 631. 467. {g) Christ's Hospital v. Budgin, (c) Povv. on Mortg. 700. 2 Vern. 683. ((0 Edwards v. Fashion, Cha. (h) Gatly v. Quarrel, cited 2 Prec. 332. S. C. 1 Eq. Ca. Abr. Vern. 684. Chap. III.] of the mortgagee. 145 in mortg-ages made to the wife before marriage, is as lo the mortgage money, like to the interest which he has in any other money, secured to the wife by specialty ; and, if it be a mortgage for a term of years, he has the same power over the term as over any other term to which the wife may be entitled. Thus, he may reduce the money into possession, and so become absolutely en- titled to it ; or he may dispose of it for a valuable con- sideration ; and if it be secured by a mortgage for years, he may dispose of the mortgage term also : (?) but, if it be secured by a mortgage in fee, the husband alone can- not dispose of the land without the wife, but the wife and her heirs will be trustees for the assignee. (A:) And if the husband becomes bankrupt, his assignees may dis- pose of the mortgage money, though it be secured by a mortgage in fee. (/) And so, if the wife survives, the exe- cutors of the husband cannot claim it ; but she will be en- titled to it as well as any other chose in action not reduced into possession during the coverture, {m) But if the husband survive, he will be absolutely entitled to the mortgage money ; and the heirs of the wife, if it be a mort- gage in fee, will be trustees for him. [n) And so, if the wife be only entitled to an equitable interest in the mortgage, the husband may become a purchaser of the mortgage by a settlement on the wife before marriage, in consideration of her fortune ; (o) or the trustees will (?) Packer v. Wyndham, Cha. states that the husband survived. Prec. 412. S. C. Gilb. 98. Bates (n) Turner v. Crane, 1 Vern. V. Dandy, 2 Atk. 207. 170. Squib v. AVyn, 1 P. Wms. (A:) Bosvilo. Brander, 1 P. Wins. 378. Packer v. Windham, Cha. 460. Gilb. Lex. Prajt. 277. contra. Prcc. 412. 29 Car. 2. c. 3. s. 25. (0 Bosvil u. Brander, 1 P. Wms. (o) Blois v. Hereford, 2 Vern. 458. : but see 9 Ves. 97. 501. Sykes v. Meynal, Dick. 368. (m) Burnett v. Kinnaston, 2 case of a settlement after marriage. Vern. 401. 3 P. Wms. 199. 10 When and how the settlement must Ves. 99. S. C. Cha. Prec. 118. be made to entitle the husband ia 146 OF THE MORTGAGEE. [GhAP. III. have the hke claim upon him for a settlement on the wife, on paying over the mortgage money, as in case of a le- gacy or portion given to the wife, (p) It is now clearly settled (q) that the personal representa- tive of a mortgagee will, in every case, be entitled to the mortgage money. And this rule holds, though the mortgage be in fee ; though the condition be for payment to the mort- gagee, his heirs, or executors ; though there is no want of assets; and though there be no bond given, or co- venant entered into by the mortgagor for payment of the money ; and whether the mortgage be forfeited or not at the death of the mortgagee, (r) For as the mortgage money was, in the first instance, taken out of the personal estate ; so, upon payment, will it return to the same. If the condition is for payment to the heir or executor, and the mortgagee die before the day of payment, the mortgagor may, indeed, by payment to the heir, save the benefit of the condition ; but the heir will take it in trust for the personal representative, (s) And if a mortgage in fee descend upon an heir, he will hold the lands as a trustee for the executor. (/) But if the mortgage has by any means become irre- deemable in the hands of the mortgagee, then the land must be taken as part of his real estate. This, however, must be settled at his death, or at the death of the person entitled both to the land and mo- such case, see Garforth v. Brad- Finch, Lord Keeper, in Thorn- ley, 2 Ves. 675. Mitford v. Mit- brough v. Baker, 1 Cha. Ca. 285. ford, 9 Ves. 87. Viuer's Abr. tit. Executors, U. (p) Packer v. Windham, Cha. Vol. XL 147 to 152. Free. 412. S. C. by the name of (r) Butler's Co. Lit. 208 b. Parker v. Windham, Gilb. 98. The note (1.) order thereof, 19 Mar. 1712. (s) Turner's case, 2 Ventr. 34S. (q) For the positions on this sub- Littleton's case, 2 Ventr. 348. ject generally see the Judgment of (t) Barnard. 49, 50. M i Chap. III.] of the mortgagee. 147 ney;(w) for if it becomes afterwards irredeemable in the hands of the heir, either by length of possession, or by his purchasing the equity of redemption or foreclosing, after his ancestor's decease, or by the mortgagor refusing to re- deem, (x) the heir will nevertheless be a trustee for the personal representative. And this, although there are no debts of the mortgagee, or all the debts are satisfied, (i/) And the heir will, upon application, be directed to convey it to the personal representative, (s) And there being a bond or covenant to pay or not in these cases makes no difference. But in a case in Vernon it was said by the court that, if the executor or administrator should, after foreclosure by the heir, come against him to have the be- nefit of the mortgage, the heir might well say, ''I will pay you the money, and take the benefit of the foreclosure to myself," in case the land be worth more than the money. (a) A Welch mortgage will be considered as part of the personal estate of the mortgagee, (b) And a mortgage of an inheritance to a citizen of London has been held to be part of his personal estate, and to be dividable according to the custom, (c) If the lands in mortgage are afterwards devised to or become settled upon the mortgagee for life, or in tail, the claim which he has upon the estate for the mortgage money shall not merge, but the charge will subsist for the benefit of the personal representative, (m) 5 Vcs. 303. 8 Ves. 277. (2) Ellis v. Gnavas, 2 Cha. Ca. Fisk V. Fisk, Cha. Prec. 11. 50. (a;) Ellis TJ. Gnavas, 2 Cha. Ca. (a) Clerkson o. Bowyer, 2 Vern. 50. Clerkson v. Bowyer, 2 Vern. 67 ; see also 2 Cha. Ca. 50. That 66. Gobe V. Carlisle, there cited, heir cannot, in general, foreclose Tabor v. Grover, 2 Vern. 3G7. 2 without joining the executor, see Vern. 193. post. Chap, on Foreclosure. (i/) Wood V. Nosworthy, cited (b) 1 Ves. 406. 2 Vern. 193. Ellis v. Gnavas, 2 (c) 1 Cha. Ca. 285. 2 Freem. Cha. Ca. 50. \44. L 2 148 OF THE MORTGAGEE. [ChAP. Utw But if the mortgagee become entitled to the estate in fee! simple,, as if it descends upon or is devised to him, the ge- neral rule is that the charge shall merge^ (d) unless he de^ clares his intention to the contrary ; (e) or unless it be more for his benefit that the charge should subsist, as if there be subsequent incumbrancers, whose claims would be pre- ferred to his mortgage, \t\ which case equity would hold the diarge subsisting separate from the estate, in order to give the mortgagee his due priority over the other incum- brancers, unless?, indeed, he has done something to shew that he has elected to give up his claim as mortgagee. But a mere entry upon the land, or acting as absolute owner, is not, in such a case, sufficient to shew that he intended the charge to merge. (/) The ground of mortgages being considered as the per- sonal estate of the mortgagee, being that the money is ad- vanced on a loan only, (g) whenever this ground fails there is no reason for preferring the personal to the real representative. Therefore where a mortgagee in fee entered for a for- feiture; and after seven years' enjoyment absolutely sold the land to I. S. and his heirs ; the court said that the estate should not be looked on to be a mortgage in the hands of I.S., so as to make it part of his personal estate; but it should be for the benefit of the heir, (h) So where a testator devised a mortgage in fee to his two daughters and their heirs, as tenants in common; one of the daughters being dead without issue, her husband took out administration to her, and claimed a moiety of the lands as part of her personal estate. But it was held that (t/) Duke of Chandos v. Talbot, (/) Forbes v. Moffatt, 18 Ves. 2 P. Wms. 604. Chester v. Willis, 384. Amb. 246. (g) Longuet v. Scawen, 1 Ves. (e) Thomas v. Kemeys, 2 Vern. 402. 348. Powell V. Morgan, 2 Vern, (h) Cotton v. Isles, 1 Vern. 271. SO. .B I Chap. III.] of the mortgagee. 149 ulthough it was a mortgage as between the mortgagor and mortgagee, yet the testator's intent was that it should pass to his daughters as a real estate to them and their heirs, and not as part of his personal estate; and that, therefore, the land must go to her heirs at law. (i) And it was in consequence of this reason, viz. that the transaction appeared to be one of borrowing and lending, that Lord Hardwicke decreed that an annuity, granted to a man and his heirs in consideration of a debt due to the grantee, redeemable at the will of the grantor, was pef" sonalty. (j) In order to know in what court a will should be proved* or letters of administration taken out, it may be useful to recollect that mortgages for terms of years are assets where the lands lie : but a mortgage in fee, like a bond, is assets where the mortgage deed is, at the time of the decease of the mortgagee, (k) In all cases where a mortgagee enters, and takes posses- sion of the estate, he makes himself liable to an account for the profits, for he becomes as it were a bailiff to the mort- gagor. But he will be allowed no salary or other reconi- pence for his trouble. (Z) In like manner if a mortgagee be in the first instance let into the possession of the estate, he makes himself account- able, notwithstanding the deed is absolute, the proviso for redemption at a distant period, and the profits of the estate uncertain; for this liability to account is a necessary conse-f quenceof the rule that says a mortgagee shall take nothing by his mortgage, except his claim for principal, interest, and costs, (m) (0 Noys V. Mordaunt, 2 Vern. (k) Brad. Pra. P. p. 5 aqd 6, 581. S. C. Gilb. 2. Cha. Piec. 265. (I) 2 Atk. 534. Garrett v. Evers, Mos. 364. (m) Fulthrope v. Foster, 1 Yera, (j) Longuet y. Scawen, 1 Ves. 476. 402, 150 OF THE MORTGAGEE. [Ch AP. III. And even in the case of a Welch morti^^e, where the profits always go in lieu of the interest, it seems that if the value were excessive, the court would decree an ac- count, notwithstanding^ the agreement for retaining the profits in lieu of interest, (n) A creditor in possession, under a power of attorney, may account as a receiver, which will entitle him to a sa- lary for his trouble: but if such creditor take an assign- ment of a niortg-age, he must thenceforth account as a morlgagee. (o) If a mortgagee in possession assign over his morfg-age, without assent of the mortgagor to an insolvent person, the morlgagee will be bound to answer the profits, both before and after the assignment; for he is under a trust to answer the profits of the pledge; and it is a breach of trust to assign such pledge to an insolvent person, (p) On the other hand, where an assignee takes an assign- ment without the previous authority of the mortgagor, or his declaration, that so much is due, the assignee will be liable to an account for all the profits received by the mort- gagee and all intermediate assignees; and it is sufficient if the mortgagor, on a bill for account, make the last as- signee a party, (q) If the lands be leased by the mortgagor, and the mort- gagee enters into possession, he will have to account at the rate of the rent reserved. (?•) And if the mortgagor can shew that the lands were let at such a price at any time during the possession of the mortgagee, that will be deemed the rate at which it was let the whole time, unless the mortgagee shew the contrary, (s) 00 1 Vern. 477. 268, 269. Contra 2 Eq. Ca. Abr. (o) Trimleston u. Hamill, iBall. 594. pi. 3. Pearson v. Pulley, X and Beat. 377. Cha. Ca. 102. (p) 1 Eq. Ca. Abr. 328. pi. 2. (r) 1 Bail. & Beat. 385. 2 Cha. Ca. 3. 3 Bac. Abr. 658. (s) Blacklock v. Barnes, Sel. (g) Chambers y. Gold will, 9 Ves. Cha. Ca. 33. Chap. III.j of the mortgagee. 151 For the general rule is that a mortg-aj^ec shall be ac- countable only for what profits he may actually receive, and not for what he might have received, unless there be fraud, or wilful default, as that he turned out a sufficient tenant that held it at so much rent, or refused to accept a sufficient tenant, that would have given so much for it. (i) So if the mortgagee use his security improperly, so an to keep out subsequent incumbrancers, and yet permit the mortgagor to receiver the rents, he will, as against the subsequent incumbrancers, be liable to account for the rents which he received, or might have received, after his en* try. (u) In like manner if a mortgagee, with notice of a subse- quent mortgage, joins the mortgagor in a sale of part of the lands mortgaged, and allows the mortgagor to receive the money, the purchase money so received shall, in favour of the second mortgagee, sink so much of the first mort- gage, (x) Where a mortgagee recovered in ejectment, and, in combination with the tenant, refused to enter, so as to pre- vent the mortgagor from ejecting the tenant, it was or- dered that, unless the mortgagee took out execution before the end of the term, he should be answerable for the pro- fits, as in case of wilful default. (3/) An agreement that a mortgagee shall enter into posses- sion of the lands at a fair rent, in discharge of his debt, is a fair agreement; and will be supported in equity, par- (0 1 Cha. Ca. 258. Anon. 1 267. Maddocks v. Wren, 2 Cha. Veni. 45. Hughes v. Williams, 12 Rep. 109. Ves.493. See also 1 Ball. & Beat. (x) Bendiam v. Ilalrcourf, Cha. 385. Contra Harnard v. Webster, Free. 30. See this case cited post. Sel. Cha. Ca. 53. Q) Duke of Bucks u. Sir Robert (m) Cropping u. Cooke, 1 Vern. Gayer, 1 V'ern.25S. 270. Chapman r. Tanner, 1 Vern. 152 OF THE MORTGAGEE. [ChAP. 111. ticularly if the mortgagor lies by for twenty years without complaining, (z) A mortgagee, who opens a mine or stone-quarry, does it at his own hazard, and will not be allowed any loss which he may have sustained in so doing, (a) But all expences, for which he has a lien upon the pre- mises, he shall be allovrcd in accounting, as renewal fines, costs of suit, and necessary repairs. (6) So where a mortgagee, thinking himself absolutely en- titled, has laid out money in repairs, or lasting improve- ments, he will be allowed such expenditure, with interest, after the rate of the current interest of the country in which the lands lie. (c) If the title deeds are stolen from a mortgagee, an ac- count will be directed with an enquiry concerning what is become of the title deeds, (d) A mortgagee of stock, transferring it to another person "without the consent of the mortgagor, will be liable to ac- count for it to the mortgagor, as a sale, at the price of the stock at the day when it was so transferred, (e) And tiie rule is the same, though the transfer be made by way of mortgage ; on account of the risk to which such transac- tions are subject. (/) But a mortgagee of stock, wishing to be repaid, may sell out the stock, and repay himself; and he will not be (s) Morony v. O'Dea, 1 Ball & 281,282. S.C. 13Ves.378. Thome Beat. 117. Acherley v. Roe, 5 v. Newman, Fin. R. 38. 3 Atk. Ves. 565. 518. See 1 Ball & Beat. 385. (a) Hughes v. Williams, 12 Ves. ((/) Stokoe v. Robson, 3 Ves. & 493. Bea. 51. Smith u. Bicknell, in note (6) 3 Atk. 518. Degelder v. there. Rep. temp. Finch. 239. Depeister, Fin. R. 206. Lomax v. (e) Ex parte Dennison, 3 Ves. Hide, 2 Vem. 185. 1 Ball & Bea. 552. Andre v. , there cited. 385. (/) See the cases cited in the (c) Quarrel v. Beckford, 1 Mad. last note. Chap. 111.] OF THE MORTGAGEE. 153 liable to account for more than he sold it for, though the funds should rise, (g) In taking an account, the master cannot make annual rests, unless the decree orders it, (/t) In general, indeed, mortgagees are not liable to account annually; (z) and, therefore, decrees in general {k) do not direct annual rests, but the account is made by calculating simple interest on the mortgage money, and ascertaining the total rents, and then deducting the total rents received from the prin- cipal mortgage money and interest so calculated upon it.(/) But, under special circumstances, where the mortgagor will be materially injured without it, the court will direct annual rests, (m) One circumstance for taking the case out of the general course of decrees, and directing annual rests, so as to make the profits from time to time be applied in payment of the interest ; and then, in sinking the principal is where the yearly rents of the mortgaged premises greatly exceed the interest of the money lent, (n) And another exception arises in those cases where there is no interest in arrear, when the mortgagee takes posses^ (g) Tucker C.Wilson, 1 P. Wms. 250. Lockwood v. Kwer, 1 Atk. 303. (h) Webber v. Hunt, 1 Mad. 1 3. (0 1 Ball & Beat. 383. (A) Fowler o. Wightwick, A. D. 1810, cited 1 Mad. 14. Hall v. Callidge, Apr. 21st, 1812. Bennett V. Kneebine, April 27th, 1812. Hansard v. Hardy, Feb. 3d, 1812. Elisha V. Elisha, Feb. 14th, 1812. Haker v. Rose, July 2nd, 1811. Maddock y. Maddock, July 4th, 1811. Dighton v. Earl of Macclcs- field, March 30th, 1814; and Mor. gan y. Lewis, Nov. 29, 181 1. Cited in Davis r. May. Coop. Cha. Ca, 238. Ashenhurst v. James, 3 Atk. 272. (0 Coop. Cha. Ca. 239, 210. (m) Coop. Cha. Ca. 240. For-r sidey. Boyers, June 20, ISllj and Kingston v. Roper, Dec. 3, 1811, cited Coop. Cha. Ca. 239. Web, ber V. Hunt, 1 Mad. 13. («) Gould V. Tancred, 2 Atk. 534. Quarrel v. Beckford, 1 Mad. 2S3. 154 OP THE MORTGAGEE. [ChAP. III. sion ; for in such case the account will be directed with annual rests, (o) And where annual rests are directed, and the mort- gagee has been at any expences, the court will so di- rect the account as that the mortgagee shall not lose the interest on his expences; as suppose the account is directed for ten years back, at which time the mortgagee had incurred a variety of costs, charges, and disburse- ments, the profits of the estate will be first applied in satis- fying these expences, and then in sinking the principal. (/)) A decree will make annual rests either throughout, or not at all; there is no intermediate case directing annual rests from a certain time only. (9) Where a mortgagee had been overpaid, at the time that a bill for an account and redemption was brought against him, he was charged with interest on the balance from the filing of the bill ; for, at that time, the demand was made, and ought to have been complied with according to the justice of the case. (?') The object of directing annual rests is to give compound interest; (s) and where such compound interest is charged on one side, it will be allowed on the other; for the benefit ought to be mutual, (t) The master cannot allow for improvements under the words " all just allowances" in a decree; but there must be a special order for that purpose, (m) It is the constant practice, in decrees to account, to direct it without future words, videlicet, to account for what they have received^ or might have received, if it had not been for their (o) Shepherd v. Elliot, 4 Mad. 283, 284, 285. Trimleston v. Ha- 254. mill, 1 Ball & Beat. 377. (p) Lomax V. Hide, 2 Vern. (s) Raphael v. Boehm, 11 Ves. 185. 92. (5) Per Sir Wm. Grant, Coop. (0 1 Mad. 283. Cha. Ca. 240. («) Kiiowles v. Speace, Moie. 1 (/) Quarrell 0. Betkfordj 1 xMud. 226. fl Chap. III.] of The mortgagee. 155 own wilful default; yet, if the person decreed to account receive any thing subsequent to the decree, it is enquirable before the master; and such sums so received must be brought to account, (x) An account fairly taken and settled is to every intent binding and conclusive, not only upon the parties, but upon all other persons. Therefore, an account settled between the mortgagor and the first mortgagee shall be binding upon all the subsequent mortgagees, though such subse- quent mortgagees were no parties to the suit. (3/) So an account taken in a cause between tenant for life of an equity of redemption and the mortgagee shall be binding upon a contingent or other remainder man. (z) And an account taken by a master during the minority of an infant, entitled to the equity of redemption, will bind him when he comes of age. (a) It becomes, therefore, both the mortgagor and mortgagee to object to the defects in an ac- count before the master, that it may be made perfect before him; for the court will not afterwards intermeddle there- with. (6) And, in directing a second account upon the same mort- gage, the court will direct it to be taken from the foot of the last account, (c) In cases of fraud, or where there has been any error in accounting, the accounts may be set aside or falsified: but then it is necessary that the bill, seeking relief, should specify some particular error, for it is impossible for the (x) Bulstrodeo. Bradley, 3 Atk. 179. 582. (a) Badham v. Odell, 4 Bro.P.C. (y) Needier r. Deeble, 1 Cha. 447. Ca. 299. Williams y. Day, 2 Cha. (i.) Ilarr. Cha. Prac. 480, ed. Ca. 32. Sherman v. Cox, 3 Cha. 1808. Gould i'. Taucred, 2 Alk. Rep. 47. Crbp v. Heath, 7 Via. 32. 533. pl" 2. (c) Proctor v. Cowper, 2 Verii. (2) Allen V. Papworlh, 1 Ves. 377. 4 Bro. P. C. 450. 454. 164. Knight V, Baiiipfieldj 1 Verii. 156 OF THE MORTGAGEE. [ChAP. III. defendant to defend himself under a general charge, whe-. ther of error or fraud, (d) But a bill for a general account will lie against an attor- ney, who takes a security without a previous settlement of accounts, (e) So, if there has been a previous settlement of accounts, if the attorney admit the general allegations of error. (/) And where a mortgagee, being the attorney of the mort- gagor, had charged receiver's fees on a subsequent settle ment of accounts, without informing his client of the law it was held by the court that the acquiescence of the mort- gagor should not be binding upon him, but that he should have liberty to surcharge and falsify, (g-) A mortgagee who has been appointed an executor to the mortgagor, refusing executorship, and then settling his accounts with the other executor's, is liable at any time to have those accounts opened. (A) A mortgagor in accounting may take advantage of a rcr cital in a deed of assignment, to shew what was due. (t) Where, after an account settled, the mortgagee has ag- signed, and the mortgagor, by subsequent recognition, is prevented from questioning the validity of the account with the assignee, he may nevertheless try the question of error with the original mortgagee. [Ic) ((09 Ves. 266. Taylor o.IIaylin, (/) Matthews v. Wallwyn, 4 2 Bro. C. C. 310. Dawson v. Daw- Ves. 1 18. See also Aubrey v. Pop- son, 1 Atk, 1. Johnson v. Curtis, 3 kin, Dick. 403. 1 Ball & Beat. Bro. C. C. 266. J^eedler v. Deeble, 104. 107. 1 Cha. Ca. 299. Knight v. Bamp- (g) Langstaff v. Fenwick, 10 field, 1 Vern. 179. Drew v. Pow- Ves. 405. er, 1 Scho. & Lef. 192. (h) Chambers v. Goldwin, 5 Ves. (e) Detillin v. Gale, 7 Ves. 583. 834., affirmed as to this, 9 Ves. 274. Newmau v. Payne, 4 Bro. C. C. (0 2 Scho. & Lef. 296. 350. (k) 9 Ves. 268, 269. il Chap. III.] of the ^ioIitgagee. 137 An account taken under a decree In equity cannot be overhavvled at law J so that all legal proceedings will be restrained by injunction. (/) If a mortgagee purchases the equity of redemption for a trifling consideration, which purchase is afterwards set aside as fraudulent, he will have to account as mortgagee; as has been determined by the House of Lords, (m) (0 Bell V. O'Reilly, 2 Scho. & (m) Morley v. Elways, I Clia. Lef. 430. Ca. 107. 158 CHAPTER IV, OF THE MORTGAGOR AND THE EQUITY OF REDEMFTIOJf. A Mortgag-or, continuing in possession of the estate after the condition forfeited, is generally considered as tenant at will to the mortgagee ; but this is only by comparison, for in very many material respects his estate greatly dif- fers from that of a tenant at will. For in the first place, if the mortgagee determines his will, and enters into posses- sion of the estate, the mortgagor shall not be entitled to emblements; but the crops growing upon the land shall belong to the mortgagee: and the reason is, that both the land and the crop are securities for the debt, (a) But, in such case, if the estate be in the occupation of a tenant claiming under a lease granted after the mortgage and the mortgagee recovers, which he is at liberty to do, at any time, without giving notice to the tenant, it is doubtful whether such tenant shall not have free liberty of ingress and regress to take the crop. (6) Another proof that a mortgagor in possession is not con- sidered a tenant at will is furnished from the proceedings in ejectments brought for the recovery of mortgaged lands. For if he were tenant at will, the demise could not be laid on a day antecedent to the determination of the will, (c) (fl) Doug. 22. (c) Goodtitle dem. Gallaway v. (b) Doug. 23. Herbert, 4 Term Rep. 680. Jl Chap. IV.] of the mortgagor. 159 AVhereas it is every day's practice to lay the demise on a day long before there has been any actual determination of the will ; sometimes back to the time when the mort- gag-e became forfeited : and no objection has ever been made on that account, (d) The estate of a mortgagor in possession differs also from that of a tenant at will in this, that the alienation of the mortgagor, by granting away his estate for a term of years, is no determination of the tenancy : but the mort- gagee may consider the lessee as a disseisor or not, at his election, (e) On the other hand, an assignment by the mortgagee will be no determination of the will ; for if it were, the mort- gagor's continuing in possession would be a disseisin, or divesting of the estate granted in mortgage ; so that the assignee could not assign over without first making a formal entry, or obtaining the concurrence of the mort- gagor. But C. J. Holt held tiiat the mortgagor should be considered a tenant, by sufferance, to the second assignee ; for there could be no divesting without a tortious entry ; and that, therefore, the mortgagee or assignee might as- *'»"• (./) And, indeed, it may be observed, that when a mortgagee covenants for himself and his assigns that the mortgagor shall continue in possession, the covenant being for his assigns will rule (he whole case; and the mortgagor may be presumed tenant at will to all the assigns, as well as to the first mortgagee, (g) So if the mor(gagor die, and his heir or devisee enter, it seems that it would not, as against the election of the (d) Per Duller, J. 1 Term Rep. (/) Smartle v. Williams, 1 Salk. 3S3. 245. S. C. 3 Lev. 387. S. C. Holt. (e) Powseleyu. Blackman, Cro. 478. S. C. Comb. 247. Jac. 639. Cro. Car. 304. 3 Le?. (g) Comb. 249. 388. Skill. 424. 3 160 OF THE MORTGAGOR. [ChAP. IV. mortgagee, be considered a disseisin of his estate, for there would be no wrongful entry, but only a wrongful con- tinuance of the estate ; (/i) and clearly it would be no dis- seisin of the estate, if the heir or devisee did any thing to acknowledge the interest of the mortgagee, as by payment of interest. But though a nlortgagee may at any time after the condition forfeited, or before, if there be no agreement to the contrary, recover the possession of the estate, and there is no occasion for any notice to quit, yet the mortgagor will be entitled to retain all the rents which he may have received while he was in possession, (i) And this, although the security be taken on a limited interest as a mortgage of an estate for life or years, (k) Nay, where the mortgagee has given notice to the tenant in pos- session to pay the rent to himself only, and the tenant, not- withstanding such notice, has paid it to the assignees of the mortgagor, the assignees will not, either in a court of law or equity, be responsible to the mortgagee for the rent received by them. (/) But the tenant paying it over after hotice will be liable for the rent to the mortgagee, (m) But if a mortgagor dispossesses the mortgagee of the estate by colluding with the tenants, and prevailing upon them to attorn to him, there, he will have to account for the rents received by him, on account of the fraud, (n) In some cases it has been said, that a mortgagor cannot set up a legal interest in opposition to his mortgagee, because a man cannot dispute his own solemn deed, (o) (h) Doe dem. Burrell v. Perkins, (/) Moss v. Gallimore, Doug. 3 Maul, and Selw. 271. 279. Wilson ex parte, 2 Ves. and (?) Iliggins V. York Buildings Bea. 252. Company, 2 Atk. 107. 3 Atk. 244. (m) Moss v. Gallimore, Doug^. (fc) Coleman v. Duke of St. Al- 279. ban's, 3 Ves. 25. S. C. 5 Ves. 433. (n) 3 Atk. 244. Swanst. 579. (o) Goodtitle v. Bailey, Cowp. H Chap. IV.] or the MorxTCAcoR^ 101 And, Q^^ain, that a tenant under the morfgag^or, having" got the mortgage deed, cannot set it up against the mortgagor, because he holds under the mortgagor, and has admitted his title. (/;) But then these were dicta in decisions made before the rule that a plaintiff in ejectment should recover on the strength of his own title had become so firmly settled as it now is ; insomuch, that at present, a trustee in eject- ment must prevail against his cestui (pie trust ; {q) so that the law, as thus laid down by these dicta, it is presumed, must be held to be over-ruled, (r) A morlgagor cannot, without the consent of the mort- gagee, grant a lease of the lands mortgaged, so as to bind the mortgagee ; (s) because by the mortgage the legal estate is taken out of him ; and in equity the claim of the mortgagee siiall be preferred to all subsequent claimantf:. But if a mortgagor do grant a lease, it will pass the equity of redemption for the term mentioned in the lease, and will entitle the lessee to be let in to redeem, {t) As a consequence of the legal estate being taken out of the mortgagor it follows that there can be no legal reserva- tion made to the mortgagor ; {u) or any covenants entered into with him which will run with the land, so as to en- title the mortgagee to sue upon them: but sucii covenants will be covenants in gross in the mortgagor, who may at any time proceed upon them, {x) The liability of a mortgagor contracting to grant a GOl. Lord Mansfield's Judgment Doug. 21. in Doe dcm. Briblowc u. Pcgge, 1 (/) Doug. 22. Rand v. Cart- Term Rep. 759. note. wright, 1 Cha. Ca. 59. (/)) Per Culler, J. 1 Term Rep. («) Moore v. L^arl of Plymouth, 760. note. 3 Barn, and Aid. 66. (9) Roe dem. Reade v. Rcade, (x) Webb v. Russell, 1 Term 8 Term Rep. 118 123. Rep. 393. Stokes v. Russell, 1 (7) Adams on Ejectment, 33. Term Rep. 67S. affirmed Cam. Serjeant Frere's note, Doug. 23. Scac. 1 II. Blackst. 562. (v) Keerb. dem, Warne r. Hall, M 162 OF THE MORTGAGOR, [ChAP. IV. lease has been thus stated by Lord Redcsdale :— "' If a mortgaf^or/' says he, " contracts to make a lease, the tenant has a right to say, *' you shall either obtain the consent of the mortgagee, or redeem the mortgage ; or, if you com- plain of the hardship of this, you shall rescind the con- tract," " A court of equity," he continues, " may not compel the mortgagor, if highly inconvenient, to pay olY the mortgage, for the purpose of giving effect to the con- tract : but then he shall not enforce it against the tenant, if the tenant does not wish to abide by it. If the tenant will not give up the contract, the Court might say, that it should not be specifically enforced against the landlord under such circumstances, and leave the tenant to seek his compensation in damages at law." (y) A mortgagor in possession cannot commit waste: but will be prevented by injunction in equity; because a court of equity will not suffer a mortgagor to prejudice the in- cumbrance, (z) But if underwood be comprized in a mort- gage, as the cutting of that is part of the ordinary profits of the land, it will not be considered waste, if the mortga- gor cuts it in a husbandlike manner, and at the usual sea- sons. («) A tenant to the morgagor, who does not give him notice of an ejectment, brought by the mortgagee, is not liable to the penalties of the II Geo. 2. c. 19. s. 12. (i. e. three years' improved rent) for secreting ejectments; because, as was observed by the Court, that act extends only to cases where ejectments are brought which are inconsistent with the landlord's title, (b) (3/) Costigan v. Hastier, 2 Sclio. 1740. Gross v. Chilton, 23 April, and Lcf. IGO. 166. 1 Mad. 11. 17S2, before Lord Thurlow. Us- See also Lord Mansfield v. IlamiU borne v. Usborne, Dick. 75. ton, 2 Scho. and Lef. 28. (a) Hampton v. Hodges, 8 Ves. (z) Farrant v. Lovel, 3 Atk. 723. 105. Hopkins v. Monk, A. D. 1742. (&) Buckley v. Buckley, 1 Term Uvedale v. Uvedale, 7 March. Rep. 647. 3 Chap. IV.] of the mortgagor. 163 A covenant in a mortgage deed for repayment of the money is a contract within the 3 Jac. 1. c. 8. So that a morli^ag-or cannot take out a writ of error upon a judgment had thereupon without first perfecting- bail, according to (hat statute, (c) A mortgagor levying a fine, and continuing in posses- sion, cannot bar the mortgagee by non-claim, {d). It has been already observed, that the fine of the mort- gagee shall not bar the mortgagor, (e) To which we may here add, that if the mortgagee is disseised, and a fine is levied by the disseisor, and five years pass after the procla- mations, and afterwards the mortgagor pays or tenders the money, he shall, under the second saving of the statute 4 Hen. 7., have five years after his payment or tender, for his title first accrued to him after the proclamations, by the payment or tender, upon cause or matter before the pro- clamations, viz. by the condition made before the fine. (J) Where upon a mortgage transaction the mortgagor gives a power of attorney to effectuate any part of the security, such power, contrary to powers of attorney in general, is irrevocable by the act of the party, (g) But by the act of God it may be revoked, as if the mortgagor should die. (A) By the 7 and 8 Will. 3. c. 25. s. 7. it is enacted, that a mortgagor in possession may vote in elections for county members, notwithstanding the mortgage. And from the converse of the 9 Ann. c. 5. s. 4. it fol- lows that a mortgagor is eligible to serve in parliament, though the lands may be mortgaged to their full value, (c) Buckney v. Melham, 3 Taunt. (e) Supra, Chap, on iMorfgagees. 383. (/) Plow. 373. 2 West. Symb. (EMPT10N. [ChAP. IV. liave sustained : it is competent to them, in part, to re- dress their own injury, by a])ating- the nuisance which has ])een erected to the prejudice of their possessory rights. And although tliat privity of legal estate may be wanting", which will enable tliem to charge the defendants as as- signees in an action of covenant ; they may still in an action upon the case, if the facts will warrant it, recover against the defendants, as strangers and wrong doers, a compensation for any prejudice done to the exercise and enjoyment of such legal rights as the plaintiffs may be en- titled to claim and exercise, and have heretofore enjoyed under the deed in question: or they may maintain an action on the covenant against the personal representative of the covenantor, if such personal representative can be discovered." (s) An equity of redemption is descendible in the same manner as a trust estate ; and in copyhold lands will fol- low the custom, as to the legal estate; in borough English, will descend to the youngest son ; and, in gavelkind, to all the sons alike, (a) By the better opinion, supported by a case cited by Mr. Fazakerley before Lord Chancellor llardwicke, there may be a posscssio fralris of an equity of redemp- tion. (6) So, no doubt, an equity of redemption descended to a daughter may be held to be devested in favour of a posthu- mous son. At law, indeed, it has been held by eight judges against the opinions of four, that if a mortgagor die, leav- ing a daughter and his wife enseint with a son^, and the daughter at the day pays the money, that she shall retain (z) The Mayor, &c. of Carlisle (J) Penvllle u. Luscomb, 1 Atk. A V. Blamire, 8 East, 487. and see 604. cited also 1 Bro. C. C. 327. ' Wilson V. Knubley, 7 East, 128. Powell on Morlg. Vol. I. 381. re- (a) Fawcet u. Lowther, 2 Ves. fers to Co. Lit, 14 b. \ Co. 124 b. 301. Plow. 58. Chap. IV.j of an equity of uedemption. 181 the lands, as against a posthumous son. (c) But tlicn this decision proceeded entirely upon the legal principle, that if the daughter had not performed the condition at the day, the land would have been lost, both to her and the after-born son : which is a principle that would not at present be allowed in a court of equity. Still, however, as Mr. Powell presumes, the question to whom the land shall in such case belong may be referred to the degree of pressure under which money so circumstanced is paid. For if a daughter so predicamented should pay money due upon mortgage to prevent an actual foreclosure, and to save the inheritance should satisfy the condition on the point of being forfeited in equity as well as at law, there seems great reason to contend that a son born after should not devest it, because if the daughter had not per- formed the condition, the land had been utterly lost, and qui sentlt onus scntire debet et commodiun. (d) As to escheat, how far an equity of redemption is sub- ject to that, the same doubt which hangs over that doctrine of the law, as applied to a trust, hangs over it also as ap- plied to an equity of redemption ; for it has never yet been determined whether there can be an escheat, of a trust, or an equity of redemption, (e) But it is quite certain that there may be a forfeiture to the crown of an equity of redemption. (/) An equity of redemption is entailable, which entail is barable by the same means as an entail in trust es- tates. (§") (c) Kirton's case, Cro. Car. 87. (/) Lovdl's c.isc, D. P. 1 Salk. (d) Powell on Mortg. Vol. II. 85. 1 Kclen, 210. Lutwich's case, 369. 2 Afk. 223. (e) Per Lord Ilardwicke, 2 Ves. (g) Hard. 409. Roscarriok v. 304. Burgess z). Wheate, 1 Blackst. Barton, 1 Ciia. Ca. 217. 1 Atk. l%i. 1 linden, 253, 256. 605. J 82 OF AN EQUITY OF REDEMPTION. [ChAP. IV. An equity of redemption upon a mortj^age in fee is not subject to dower ; (/i) but it is to curtesy, (i) As against the heir a widow is entitled to dower out of the equity of redemption of a mortgage for a term of years, because a term of years will not prevent the husband from having the legal seisin of the freehold and inheritance; (A:) this is like the case of an attendant term for years, which will not protect the heir from the dower of the widow. (/) But as against a purchaser who has paid oft' the mort- gage, and taken an assignment of the mortgage term to attend, the widow is not entitled to dower, (m) Where a mortgagee for a term of years contracted to purchase the equity of redemption for the mortgage sum only: upon a bill brought for dower, the JMaster of the Rolls said the dowress should have dower out of a term for years, where the inheritance was in the husband, as against the heir of the husband, or against a volunteer : but it is settled that she shall not as against a purchaser for a valuable consideration. But in the principal case he could not look upon the defendant as a purchaser, because he could not look upon the method there taken between him and the husband as a purchase, the agree- ment for the purchase being for the mortgage money only. He therefore relieved the widow ; but said, that he would (h) Dixon y.Saville, 1 Bro. C. C. 325. : but see post in this Chap. (i) Casborne v. Scarfe and In- glis, 1 Atk. 603. and see llearle v. Greenbank, 1 Ves. 298. (/c) Palmes t). Danby, Cha.Prec. 137. 2 P. Wms. 716. Wray c. Williams, Cha. Prec. 151. S. C. 1 P. Wms. 137. (0 Dudley r. Dudley, Cha. Prec. 211. and bee the taoCi cited iu the last and next notes. (m) Swaniiock v. Llfford, Amb. 6. on appeal from the Holls. Lord Hardwicke's Judgment, much ful- ler stated by Mr. Butler, in his note to Co. Lit. 208 a. Radnor v. Vandebendy, Show, P. C. 69. S. C. Cha. Prec. 65. Brown v. Gibbs, Cha. Prec. 97. Wynn u. Williams, 5 Ves. 130. Case of a Mortgagee, who is purchaser pro tunlo. JR Chap. IV.] of an equity of redemption. 183 not relieve her as against a purchaser, (n) T!ic ground for relief in the case just cited was evidently, because the Master of the Rolls considered the mortgagee a volun- teer only as to the purchase of the equity of redemption. It, therefore, seems to result, that in every case of the pur- chase of an equity of redemption, where the consideration money does not exceed the money due upon the mortgage, unless a purchaser can be furnislied with the most satisfac- tory evidence that he has given a bona fide consideration for the purchase of the equity of redemption, he cannot be advised to complete without a fine from the vendor's wife. And in every case of a purchase, where the purchaser relies upon a mortgage term as a protection from dower, it is absolutely necessary that the mortgage term should be assigned to a trustee for the purchaser, (o) IMoreover, in every case where it is said that a mortgage prevents the widow from claiming dovv^er, whether it be spoken with re- ference to the equity of redemption on a mortgage in fee, or on a mortgage for years, assigned in trust for a pur- chaser, it is intended of a mortgage made before the title of dower in the wife, (p) The way in which a widow becomes entitled to dower, where there is a mortgage for years in the one case, and does not in the other, is this ; i. e. as against the heir or a volunteer, and in favour of the widow, equity will set aside the term, upon her keeping down one-third of the interest of the principal. But in questions between a widow and a purchaser equity stands neuter, and allows the pur- {n) Mitchell v. Reynolds, at the preceding notes : and Co. Lit. 208 Rolls, 1730. stated in Mr. Butler's a. note 1. Maundrell a. Mauudrell, note, Co. Lit. 208 a. note 1.— Sec 10 Ves. 246. particularly the close also Morley v. Elways, 1 Cha. Ca. of the Judgment. 107. Hill V. Worsley, Hard. 320. (/;) See as in last note, particu- (o) See the cases cited in the four lurly Co. Lit. 208 a. note 1. 3 181 OF AN EQUITY OF REDEMPTION. [ChAP. IV. chaser the protection of his term ; for in both cases the widow may recover dower at law with a cesset execulio during- the term, (q) Indeed, we shall find that in most cases, where a person can claim title by act of law in a trust estate, he may also claim a title in an equity of redemption. Thus, it ^vill go to the assignees of a bankrupt; (r) or, being in a term of years, to the husband surviving his wife, (s) For though it is true that a mortgagee is not barely a trustee to the mortgagor ;(<) yet to some purposes, videlicet, with regard to the inheritance he certainly is, till a fore- closure, (m) Where an act of parliament mentions a seisin only, it applies to a seisin in equity or a trust estate, and conse- quently to an equity of redemption as well as to a legal estate; which has been recognized even by a court of law. And, therefore, an equity of redemption has, in more than one decision, been held to be within the excep- tion of the last annuity act 17 Geo. 3. c. 26. s. 8. which provided that annuities secured on lands of equal or greater value, whereof the grantor was seized in fee simple or fee tail in possession, need not be enrolled, (x) Which de- cisions are equally applicable to the present annuity act since the 8th section of the 17 Geo. 3. has been re-enacted therein. Under the old act Lord Thurlow held that the act not having said that it should be above reprizes, an equity of redemption would be within the exception, though mortgaged for its whole value. (3/) But the present act, i. e. (q) See as in the last note. Cha. Ca.268. Tucker u. Thurston, (r) 1 Cha. Ca. 71. 17 Ves. 131. Gumming v. Sir W. (*) Young V. Radford, Hob. 3. Twysden, 12 East. 272. n. Amhurst (0 17 Ves. 133. And see post. y. Skynner, 12 East. 263. as to assets and execution. (i/) 2 Bro. C. C. 271. 17 Ves. (m) 1 Atk. 606. 133. (x) ShiapuMl V. Vernon, 2 Bro. Chap. IV.] ^^^ ^^ equity of redemption. 185 53 Geo. S. c, 141. is, in this respect, more cxpFicit; and has expressly declared that the value to the grantor must be of equal or greater annual value than the annuity granted, over and above any other annuity and the interest of any principal sum charged or secured thereon, of which the grantee has notice at the time of the grant. It seems that any agreement relating to the mortgage money is within the statute of frauds as an agreement re- lating to money, wliicli is a charge upon lands ; and that, tlierefore, parol evidence will not be admissible as to any agreement between co-mortgagors to charge the lands otherwise than those lands would be affected in equity. Thus where an estate was settled upon A, in tail, remainder to B. in tail ; and A. proposed to B. to join in a mort- gage, which was accordingly done, and they both joined in a bond, but A., being first named, received t!ie money: Upon a bill bronglit by the creditors of A., after his dcatli, to turn the mortgage debt and interest upon the estate of B., insisting upon a particular agreement between A. and B. that this debt should be on the estate of B., which was ob- jected to by B., as improper evidence within the statute of frauds, because only parol. Lord llardwicke observed, that ^'^as to the parol evidence it is not necessary to give an absolute opinion, but I doubt wiiether it would be good. This is certainly a kind of real right; being to affect a real estate in all events, contrary to the writing, and to rebut the equity.'* And, taking the evidence in its greatest ex- tent, the weight thereof is taken off and contradicted by the evidence on the other side, by which it is plain that A. was taken both by himself and B. to be the debtor; so that the facts subsequent and concomitant speak the con- trary to any actual agreement to tiiis purpose: this is, therefore, an attempt by persons standing in the place of the principal to turn the estate of the surety to exonerate the debt of the principal. (:;) (i) Robinson o.-^lce, 1 Vcj.251. See Lee v. llouk, Mos. 318. 186 OF AN EQUITY OF REDEMPTION. [ClIAP. IV. The distinction between legal and equitable assets con- sists chiefly in their administration ; for legal assets shall be administered amongst creditors in the course of law, wherein the king's debt shall be first paid. 2dly, Judg- ments against the testator in a court of record, whether obtained upon trial or by mere confession, and amongst many judgment creditors, he who first sues execution must be preferred. 3dly, Statutes and recognizances, and herein where there is more than one creditor by statute he who first gets hold of the goods shall be preferred : but, as touching the lands, they shall claim precedence according to the priority of their incumbrances. 4thly, Specialty creditors. And, 5thly, Creditors by simple contract. («) But equitable assets are administered, first among the real security creditors, and then among the creditors by spe- cialty and simple contract; the real securities, whether they be by mortgage, judgment, statute, or recognizance, being paid according to the priority of their respective dates, for in equity there is no preference amongst these securities; and the creditors by specialty and simple contract being paid pari passu, without any distinction as to priority. (6) An equity of redemption is sometimes legal assets, and sometimes equitable. If a man seized in fee mortgage in fee, (c) or if one possessed of a term mortgage for the whole term, (d) in either case, the equity of redemption is considered equitable assets. But if one seized in fee mortgage for a term of years only, (e) the reversion out- («) Wentw. Off. of Exec. c. 12, pa. 129. Treat, on Equity, Part II. Ch. 2 s. 2. 2 Blackst. Com. 611. (6) Treat, on Equity, Book IV. Part II. c. 2. s. 1. Child v. Ste- phens, 1 Vern. 101. Symmes tJ. Sy- monds, 1 Bro. P. C. 66. Sharps v. Earl of Scarborough, 4 Ves. 538. Tempests. Sabine, cited 4 Ves. 541. riuaket V. rcu;;on, 2 Atk. 200. Wilson V. Fielding, 2 Vern. 763. (t) Plunket V. Penson, 2 Atk. 290. Solley v. Gower, 2 Vern. 6 1. (d) Barthrop v. West, 2 Cha. Rep. 33. Creditors of Sir Charles Cox, 3 P. Wms. 341. Hartwell v. Chitters, Amb. 308. (e) Massam y. Harding, cited 2 Atk. 291. 294. Cole v. Warden, 1 Vern. 410; and bee 1 Salk. 354. Chap. IV.] of an equity of redemption. 187 standing is legal assets, and will draw the equity of re- demption to it; for a creditor may attach the reversion in a court of law, where the judgment will be with a cesset executlo till the reversion falls into possession, and then file a bill in equity to redeem the mortgage; which will entitle him to tack his debt by judgment to the mortgage debt, as against the heir, but not as against other cre- ditors. (/) If an executor redeem a mortgage of a term for years, the value of the property beyond what was paid for re- demption shall be legal assets in his hands ; (g) for what- ever comes to the executor, qua executor, shall be legal as- sets, though recovered in Chancery. Where a mortgagor devised to trustees for a term for the payment of debts, and died indebted, by judgment, bond, and simple contract, it was held that the judgment cre- ditors, who had a right to redeem, should be preferred, (/i) which we may observe is only consonant to the rules above laid down for the distribution of equitable assets. Nor is the above case at all inconsistent with the case of Sir C. Cox's creditors, where bond and simple contract creditors were decreed to be paid pari passu, (i) In 1673 it was made a question whether the money, which came to the hands of the heir for the sale of the equity of redemption, was assets in equity; and it was held by Finch, Lord Keeper, that it was not any more than the land after alienation bond fide. (A.) But this was prior to the 3 W. & M. c. 14. by which it is enacted that the heir shall be chargeable to the value of the lands sold, (/) 2 Cru. Dig. 140; and see the (Ji) Sharpe v. Earl of Scarbo- cases in the last note. rough, 4 Ves. 538. Stonehewer t>. {g) Ilarwood v. Wraynam, 1 Thompson, 2 Atk. 440. Rol. Abr. 920. S.C. Moore, 868. 1 (i) 3 P. Wins. 341. j cited ante, RoL Rep. 56. 1 Brownl. 76. 3 4 Ves. 542. Cox's P. Wms. 343. u. 2. (A) 1 Freem. 303. pi. 369. 188 OF AN EQUITY OF REDEMPTION. [ChAP. IV. though the lands in the hands of a purchaser bond fide be- fore action brouglit shall not. The 10th section of the statute of frauds has enacted that the sheriff may deliver execution of all such estates as any person is seized or possessed of in trust for him against whom execution is so sued. But the equity of re- demption of a mortgag-e of a term for years, (/) or the equitable interest of a termor, who has conveyed in trust to sell and pay creditors, and the surplus to himself, {m) cannot be taken in execution under this statute. In Lyster v. Dolland, (w) Lord Thurlow, at first, thought that an equity of redemption was within the sta- tute of frauds. But the next day he decided otherwise, saying, '' That upon looking into the statute he did not think this is within it. The words are, that upon every statute, recognizance, or judgment, the sheriff shall deli- ver in execution to the party any lands, &c. held in trust for the defendant, just as if he had been actually seised or possessed of the same. Here it is impossible he can be seized. Upon reading the statute 1 thought we were all mistaken yesterday. I do not think the statute touches it at all. I imagined the words were much larger; and that the words ' equitable interests ' were contained in it.'* From this judgment it appears that Lord Thurlow drew no distinction between the cases, whether the equity of redemption were on a mortgage in fee, or on one made by a termor ; and consequently that, in his opinion, the equity of redemption, on a mortgage in fee, could not be taken in execution. In a late case in the exchequer it was made a question whether an equity of redemption could be taken under an (0 Lyster y. DoUand, 1 Ves. (;») Scott u. Scholey, 8 East. 467. Jun. 431. S.C. 3Bio. C.C. 478. Metcalfi).Scholey,2New Rei).46l. 13urdeu y. Kennedy, 3 Atk. 739. («) 1 Ves Jun. 435, 436. Chap. IV. j of an equity op redemption. 189 extent for a debt to the crown : (o) but in a still later case the point seems settled that it may. (p) And no doubt the rule laid down by Hale, with respect to trust estates, that they are liable to the king's debt by the common law per cursum scaccarii, which makes the law in such cases, {q) would be equally extended to an equity of redemption. A trust estate of inheritance not being liable to for- feiture for felony, (r) it follows that the equity of redemp- tion on a mortgage, made by the person seised, of the in- heritance, would not be forfeited for felony. Cut an equity of redemption is liable to forfeiture for treason, (s) under the statute S3 Hen. 8. c. 20. s. 2. And the ground for this, as stated by Mr. Saunders, is that the statute of treasons, above noticed, has the word con- ditions; so that if a mortgage in fee be made subject to a condition of re-entry, and the mortgagor commits treason before the day of payment, the king, by the forfeiture, shall have the benefit of the condition; and if the estate shall become absolute in the mortgagee in consequence of the non-payment of the mortgage money, an equity at- taches upon the mortgagee in favour of the crown, upon the same principle that it would have attached in favour of the mortgagor in case he had not committed treason. (0 (o) The King v. De la Motte, Ilardr. 488. Forest. Excli. Rep. 162. (;>) The King v, Coombes, 1 Price 207. (q) Ilardr. 495. (r) Attorney-General v. Sands, (*) Attorncy-Gencral u. Crofts, 1 Bro. P. C. 222. Lovel's case, 1 Salk. 85. (01 Saunders on Uses and Trusts, 2TJ, 190 OP AN EQUITY OF RFDEMPTION. [ChAP. TV. Secondly. Who may redeem, and the method of pro- secuting this power of redemption. Equity permits every person to redeem who has any estate or interest in the equity of redemption of the mort- gagor. Therefore, all pernors of the profits, as the mortgagor, a tenant for life, a remainder-man or reversioner, (w) a tenant by the curtesy, (a) a dowress, {y) a jointress, {z) the crown or its granteCj (a) an executor, an heir, a de- visee, {h) a purchaser, whether for a valuable considera- tion (c) or voluntary; and if voluntary, whether under a settlement made before (he mortgage, (rf) (in which case the mortgage is a revocation pro tanto,) or after, (e) a lessee by himself or his friend, (/) &c. may redeem. And Lord Manners was of opinion that under the Irish act of the 8 Geo. 1. c. 2. where a tenant mortgagor has forfeited his lease, that the original landlord might be permitted to redeem. (g) So, assignees of a bankrupt may redeem :(/i) but by the 5 Geo. 2. c. 30. s. 38. they are prevented from insti- tuting a suit in equity for that purpose, without the consent (m) Aynsly v. Reed, Dick. 249. (x) Bunb. 347. 1 Anstr. 143. (_?/) Palmes v. Danby, Cha. Free. 137. Wrayi). Williams, ibid. 151. (z) Howard v. Harris, 1 Vern. 33. 190. S. C. 2 Cha. Ca. 147. 2 Ventr. 364. Bertue v. Stile, cited 1 Cha. Ca. 271. (a) Attorney-General v. Crofts, 1 Bro. P. C. 222. Lovell's case, 1 Salk. 85. 1 Eden, 210. Attor- ney-General V. Basnett, Park. 268. (6) Philips V. Hele, l Cha. Rep. 190. (c) Anon. 3 Atk. 313. (rf) Thome o. Thome, 1 Vern. 182. Rand v. Cartwright, 1 Cha. Ca. b9. Barthrop v. West, 2 Cha. Rep. 62. (e) Roberts on Vol. and Fraud. Conveyances, 373. (/) Keech v. Hall, Doug. 22. {g) 1 Ball and Beat. 34, 35. (Ji) Frankly a ». Fern, Barnard. Ch. R. 30. CflAP. IV.] OF AN EQUITY OF REDEMPTION. 191 of the major part in value of the creditors. And a Pro- testant, next of kin, has been admitted to redeem a mort- gage made by a Popish heir, and to hold till his con- formity, (i) Committees of a lunatic may out of the savings of the estate redeem a mortgage, in which case it will be for the benefit of the heir and the mortgage term assigned to attend, (k) In like manner a guardian may, out of the profits of an estate descended to the infant, pay the interest of any real incumbrance and the principal of a mortgage, because that is a direct and immediate charge upon the land, but not the principal of any other real incum- brance. (/) And not only the pernors of the profits, but all subse- quent incumbrancers, may redeem ; as a subsequent mort- gagee, (w) a tenant by statute merchant, statute staple, or elegit, (n) sequestrators, (o) &c. So a judgment cre- ditor, tliough his judgment be with stay of execution : (/;) but if it be a mortgage of leasdiold, it is necessary, before be brings a bill to redeem, that a writ of execution should be sued out; for, until that be done, a judgment is no lien on the leasehold estate, (q) So a creditor, whose debt sub- sists only in equity, as a widow to whom the husband be- fore marriage has given a bond, conditioned to leave her a sum of money if she survived him, may redeem. (?•) But in general, in order to entitle a person to redeem, it is necessary to shew that he has the estate of the mort- (0 Jones o. Meredith, Com. 6G1. (o) Fawcet y. Fothergill, Dick. S. C. Bunb. 346. As to what that 20. conformity must be, see Butler's (/)) Stonehewer v. Thompson, note, Co. Lit. 391 a. 2 A(k. 400. {k) Ex parte Grimstone, Amb. (<-/) Siiirley v. Watts, 3 Atk. 706. 200. Aiigell v. Draper, 1 Vern. (0 Palmes v. Dauby, Cha. Prec. 399. 137. (r) Acton v. Pierce, 2 Vern. (m) 1 Ves.268. 489. (n) Buab. 347. M 192 OF AN EQUITY OF REDEMPTION. [ChAP. IV. gngor. Therefore^ ^vhe^c there are proper persons to get in the estate of another^ as an executor, or the assignees of a bankrupt, a court of equity will not suffer the credi- tors of a testator, or the creditors of a bankrupt, to bring a bill in order to get in that estate. But if an execu- tor or assignees under a commission will collude with a debtor, there is no doubt a creditor may bring his bill in order to take care of the estate, and charge the assignees or executors with such collusion. Therefore, where the assignees of a bankrupt were prevented from bringing a bill to redeem by a resolution of the creditors, it was de- termined that if assignees refuse to bring a bill that is for the benefit of the bankrupt's estate, any creditor has a right to bring such bill under peril of costs. In which case it is necessary that the plaintiff creditor should make the assignees defendants. And the decree will be, that the assignees in the first place, and in default thereof the plaintiff, shall have liberty to redeem, (s) By the same rule, creditors under a deed of trust cannot have a decree to redeem, unless they can shew thai the trustees are col- luding, or that they are unsafe, (t) So a bankrupt mort- gagor cannot bring a bill to redeem : but where he has a clear interest, and the assignees refuse, the Lord Chan- cellor, upon petition, would compel them, upon an offer of indemnity, to let him use their names, (m) And not only must the person coming to redeem shew that he has the legal estate of the mortgagor, but he must shew that he has, next to the mortgagee, the best right to the possession of the estate ; for instance, a remainder- man cannot redeem during the life of the tenant for life, unless the tenant for life refuses to redeem ; (x) wherefore, (s) Franklyn v. Fern, Barnard, 583. Cha. Rep. 30. («) 5 Ves. 587. (0 Troughton a. Binkes, 6 Ves. (a?) Gilb. Eq. Rep. 69, 573. Spragg v. Biukes, 5 Ves. , .. I CllAP. IV.] OF AN- EQUITY OF t?Ft)EMPTION. l93 in all liills for retlemption by a remainder- man, he must make the tenant for Hfe a defendant, in the same manner ns a creditor coming to redeem must make an executor or assignees under a commission of bankruptcy defendants. (j/) And where the equity of redemption is limited to a variety of uses, the several beneficiaries will have the option of re- i deeming in the order of limitation in which they stand, (s) And this power of the remainder-man to redeem is highly equitable; since otherwise, by the tenant for life leaving the interest to run in arrear, the estate might come highly encumbered to the remainder-man, or be entirely lost, (a) Yet, though a remainder-man cannot directly compel the tenant for life to redeem ; yet indirectly he may, by first purchasing or himself redeeming the mortgage, and then taking possession of the premises, or filing a bill of fore- closure, (b) Tiiis rule enabling the remainder-man alone to redeem, after the tenant for life has refused, is a conseq^uence of the rule which has latterly prevailed in the courts, that a tenant for life shall keep down the interest only of a mortgage ; for formerly the remainder-man might have compelled the tenant for life to come in and contribute his share of the principal towards a redemp- tion, (c) Where there are several mortgages of the same estate, one behind another, the order in which the mortgagees will be let in to redeem will be, that the second do redeem the first, the third the second, and so on. (d) (y) Barnard. Cha. Rep. 32,33. 223. Cornish v. Mew, ibt'd. 271. (s) Aynsly v. Reed, Dick. 249, Ciyatt v. Batteson, I Vern. 404. 250. Barnard. C. R. 33. Ballett v. Spranger, Clia. Free. G2. (a) Casborne r. Scarfe, 1 Alk. (rf) Arcedechneu. Bowes, 3 Mer. 60G, 216. in note. S. C. 3 Anstr. 752. (6) Gilb, V.q. Rep. 6?. 3 Anstr. but not reported there as to this 767. Romilly argu. point. (t) Hayes v. Hayes, 1 Cha. Ca. O 194 OF AN EQUITY OF REDEMPTION. [ChAP. IV. The person coming- to redeem must shew a legal title. Therefore, where a person claiming under the heir gene- ral, brought a bill to redeem, the defendant set forth a deed of entail entitling another person to the equity of redemption, upon which the plaintiff prayed that he might redeem at his peril ; the Lord Keeper would not admit him to do it, unless he could make out that the estate tail was docked. And a trial at law was directed for that purpose, (e) A subsequent incumbrancer should always give notice of his incumbrance to the mortgagee; or he puts it in the power of the mortgagee to increase his original debt, by tacking to it another debt. (/) Hut more especially is this notice requisite, where the subsequent incumbrancer has any idea of redeeming the mortgage ; for if a mort- gagee, without notice, purchase the equity of redemption from the mortgagor, the subsequent incumbrancer is for ever afterwards barred from redeeming, (g-) Where, however, a mortgagee forecloses, a subsequent incumbrancer, not a party to the suit, may nevertheless redeem, though the decree of foreclosure be signed and inrolled. (^) And there is a material difference between this case and the preceding; for the former is of an actual purchase completed and covered by the mortgage, which cannot be impeached but by a creditor, of whom the pur- chaser had notice : the latter supposes only a decree for a foreclosure, which cannot affect a subsequent incum- brancer as to his right of redemption, (i) But a subse- quent incumbrancer^ whose incumbrance was not created (e) Lomax v. Bird, 1 Vern. IS^. 601. Morrett u. Westerne, 2 Vern. Raithby's edition. 663. Crisp v. Heath, 7 Vin. 52. (/) Goddard v. Complin, 1 Cha. pi. 2.— See post, where these cases Ca. 119. and see post. are cited. (g) Greswold v. Masham, 2 Cha. (0 Powell on Mortg. Vol. I. Ca. 170. 361. (A) Godfrey c.Chadwell, 2 Vera. Chap. IV.] of an equity of redemption. 195 til! after the suit commenced for foreclosure, cannot be let in to redeem, but will be bound by the decree obtained against the mortgagor or his representatives. (A) A person cannot file a bill in equity, and yet stay the re- demption till the validity of the mortgage has been tried at law : but he must at once declare whether he will redeem. (/) If one mortgages his estate in order to raise money for another on a promise of repayment, he may afterwards go into equity against that other person to have his estate dis- encumbered, as every surety may against his principal; and the promise for repayment having been by parol only will not avail the defendant: but if there be any doubt as to the sum actually received by the defendant, the court will direct an indebitatus assumpsit to be brought at law, and will prevent the defendant from taking advantage of the statute of limitations, (m) It is the constant aim of a court of equity to do complete justice by deciding upon and settling the rights of all per- sons interested in the subject of the suit, to make the per- formance of the order of the court perfectly safe to those wiio are compelled to obey it, and to prevent future litiga- tion. For this purpose all persons materially interested in the subject ought to be parties to the suit, plaintiffs or de- fendants, however numerous they may be. (w) Hence upon a bill for redemption it is necessary that there should be proper persons to give an effectual release for the debt, and to reconvey the estate; and that there should be pro- per persons to whom the estate may be reconveyed : and, therefore, both the real and personal representative(o) of the mortgagee ought to be parties. (k) Bishop of Winchester v. (m) Lee v. Rook, Mos. 318, Payne, 1 1 Ves. 194. («) Mitford's Plead. 144. 2nd (0 Smith V. Valence, 1 Cha. Rep. edit, 169: but see Palmer v. Jackson, 5 (o) 2 Freem. 52. Case 57. Bro. P.C. 194. 205. o2 195 OF AX EQUITY OP REDEWPTTOV. [ChAP. IV. But, on a bill to redeem an old Welch mortgage, the Court does not look for the personal representative to be made a party. And the rule, it seems, would be the same in the case of a recent Welch mortgage, (p) So, if the mortgagee has assigned the mortgage without the mortgagor's consent, it will be enough if the last assignee is made a party: (q) much more so if the assignment were with the mortgagor's consent. And again, if the mort- gagee has conveyed the estate over to uses in settlement, it is not necessary that the m.ortgagor should make all the persons, who have an interest under the settlement, ])arties: but he must at least bring the first tenant in tail before the Court ;(r) because with his assistance the estate may be reconveyed discharged of the limitations over, and he is the person to give a receipt for the principal mort- gage money. Of course it follows that all persons having limitations under the settlement prior to the first tenant in tail, must be parties also, (s) We have already seen a remainder-man coming to re- deem must make the tenant for life a party ; a creditor un- der a commission of bankrupt, the assignees; a creditor of a testator, the executor; because their right of redemption is prior. So, a second mortgagee, or a subsequent incum- brancer, cannot come into equity to redeem without making the mortgagor, or his heir, if it be a mortgage by a person seised in fee, a party. For the natural decree, in such cases, is, that the second mortgagee shall redeem the first mortgagee; and that the mortgagor shall redeem him, or stand foreclosed ; and there never was a decree which was (p) 1 Ves. 406. 237. 2 Atk. 101. 1 Cha. Ca. (q) Hill V. Adams, 2 Atk. 39. 220. Ves. 268, 269. Call r. Morti- (s) Blount c. Earl of Wiaterton, mer, cited post. Anon. 2Eq. Ca. MSS. Harr. Cha. Prac. 29. Ed. Abr. 594. pi. 3. 2 Freem. 59. 1808. 1 Dow. 31. (r) Yates v. Hambly, 2 Atk. Chap. IV.] of an equity of redemption. 197 not so perfected, (t) So much so that a subsequent incum- brancer cannot have a bill to redeem onti/, without bringin*^ the mortgagor before the Court, (w) But though, on a bill brought by a subsequent incumbrancer to redeem the first, it is necessar}^ that the real representative of the mort- gagor should be a party, there is no necessity to make tlie personal representative also a party ; and it was so held by Lord Thurlovv in Fell v. Brown, (x) The reason for wiiich is this, because the bill^ so far as relates to the mort- gagor, being to foreclose the equity, the plaintiflf need only make him a party who has the equit}^, viz. the heir, (i/) And if the heir be out of the jurisdiction of the Court, the Court will not proceed without him. (z) So if, upon the death of a mortgagor, part of the mortgaged estate descends to A. and the residue to B.; and afterwards an incum- brancer claiming under A. only brings a bill to redeem. As it is settled that a subsequent mortgagee must redeem the entire mortgage of a prior mortgagee, the subsequent incumbrancer must not only make A. a party to the bill, but also B. And the right to redeem gives him a right to bring B. before the Court. («) A devisee of a mortgaged estate bringing a bill io re- deem need not make the heir at law of the mortgagor a party, unless his bill be also to have the will established, (6) Under a bill for sale the Court will not decree a redemp- tion, though there may be ground for a redemption, (c) But if a bill for sale states a proper case for redemption, under (he general prayer for relief, the Court will allow (0 Fell V. Brown, 2 Bro. Cha. P. Wms. 333. n. Ca. 276. Woodcock v, Mayne, (z) Fell v. Brown, 2 Bro. Cha. cited 12 Ves. 59.; and see 3 P. Ca. 276. Case cifed by Mr. ScoU, Wms. 333. note A. Wilson v. 2 Bro. Cha. Ca. 277. Metcalfe, 3 Mad. 45. («) Palk v. Clinton, 12 Ves. 48. (a) 12 Ves. 58. (b) Lewis v. Nangle, 2 Ves. 431. (x) Ubi supra. (c) Tioughton v. Biukcs, 6 Ves. (y) Diuicombe v, Ilansley, 3 b7S. 198 OF AN EQUITY OF REDEMPTION. [ChAP. IV, the plaintiff to amend generally by adding parties^ and praying a redemption or foreclosure in the alternative, {d) On a bill to redeem the mortgagee cannot object that the bill does not state a valid legal conveyance to him ; for by the bill the mortgagor has admitted the title of the defend- ant to be good, and a mortgage is properly the subject of equitable cognizance, (e) It is settled that a mortgagor coming to redeem must pay the costs of all persons parties to the suit, and claiming under the mortgagee, though it is apparent that by this means the mortgagee has it in his power, by settling the estate or otherwise, very much to increase the expences of the mortgagor. (/) A mortgagee, as we have already seen, may recover the estate by ejectment, or bring a bill for foreclosure without giving any previous notice to the mortgagor. The reason is, because at law the estate is his own; and no notice is requisite to entitle a man to recover his own, who stands in the situation of the mortgagee, so that whenever the mort- gagee calls for his money the mortgagor must pay it. But it is otherwise with the mortgagor; for he cannot compel the mortgagee to take his money at a moment's warning. He must give the mortgagee six months' notice to recover it; or, which is the same thing, must pay him six months' interest in advance; because the day of redemption at law being past, he has lost his estate at law, and can be let in to redeem by a court of equity only ; and a court of equity will not assist unless he will do equity: and the Court holds that it is equitable that the mortgagor shall give six months' notice of paying in the money, to enable the mort- gagee to provide another security for it. (g) (d) Palk t). Clinton, 12Ves.4S, 255.; and see ante in Chap, on (e) Roberts v. Clayton, 3 Anst. Mortgagees, as to costs. 71 5. (g) Second Volume of Cases and (/) Wetherellr. Collins, 3 Mad. Opinions, 51.; and see post thit II Jl Chap. IV,] or an equity of redemption. 199 But as the plaintiff, in a bill for redemption, professes that the money is ready, the Court will not enlarge the time for payment on a bill for redemption, as it will on a bill for foreclosure, [h) It is a rule in equity that a mortgagee in possession, who is sued for a redemption, shall never be stripped of his pos- session before payment, {i) And where possession is got against a mortgagee by fraud pending a suit, it must be restored before there can be any redemption, {k) And the Court will not allow a purchaser of the equity of redemp- tion to oblige a mortgagee to quit possession, unless he will first pay him his principal, interest, and costs. (/) Upon a bill filed to redeem a mortgage of some cham- bers in Gray's Inn, it was'insisted for the defendant, that the chambers mortgaged, being in an inn of Court, where the students were to enjoy quiet without disturb- ance, the plaintiffs ought to apply to the bench ; and, if not redressed there, then to the judges of the society; but that the Courts at Westminster had been always pleased to decline interposing therein; and the rather for that the legal estate of all the chambers of the house was in trus- tees; and the order of pension, which granted terms in chambers, passed no legal title, nor were the benchers that made such order seized of the legal estate But the Master of the Rolls allowed the bill to be proper, de- claring that he would not have meddled with this title to chambers, which is no legal one, if the benchers themselves had not recommended it to the plaintiffs to come hither, and left them at liberty to make this application, {in) opinion stated at length. 2 Ves. (/c) Lant v. Crisp, Vin. Abr. tit. 678. Mortg. T. pi. 16. (h) Nevosielski v. Wakefield, 17 (/) Davy u. Barker, 2 Atk. 2. Ves. 417. (;«) Ilakestraw t). Brewer, 2 P. (0 Vin. Abr. title Mortg. T. Wms. 51 1. S. C, Sel. Gha. Ca. 55. pi. 15. Brine u, Ilartpole. SCO OF AN EQUITY OF UEDEMPTION. [ChAP. IV. Upon a bill brought to redeem against a mortgagee, who was then ambassador in Spain, the Court ordered all proceedings to delay for a year and a day, unless the am- bassador should return sooner, (71) Upon bills to redeem a variety of questions frequently arise as to the mortgage money, interest, costs, the method of accounting, tacking', &c. : but for questions of this kind referring the reader to those parts of this Work, wherein they arc more particularly considered, we will, in the next place, proceed to enquire, according to the plan originally marked out, how this equity of redemption, of which we have been speaking-, may be entirely lost. Thirdly. The most decided way, in which a mortgagor's equity of redemption in the mortgaged premises may be lost, is by a decree in a court of equity, which decree is made either upon the suit of the mortgagee in a bill of fore- closure, or upon the suit of the mortgagor in a bill for re- demption. For the decree in a bill for redemption always is, that the morlgagor shall redeem the mortgagee, or stand foreclosed. (0) So, where a plaintiH' seeks to set aside a con- veyance for inadequacy, or as having- been fraudulently obtained, the like decree will be made to redeem, or be foreclosed, (p) And it in established now, that if a bill, filed by a mortgagor for redemption, is dismissed, the money not being paid at the time, that operates as a foreclosure, and is equivalent to a decree for foreclosure, (c/) So, wherever a morfgagee is made a parly to a bill, though the prayer of the bill may be simply for relief; yet, it will be considered the same thing as a bill to redeem, for re- (n) Pilkingtoii v. Stanhope, 2 Bro. C.C. 278. 12 Ves. 58, 59. Vern. 317. (/>) Co', of Sutherland v. North* (o) See the decrees in Co', of more, Dick. 56. Sutherland y. Northmore, Dick.56. (g) 11 Ves. 199. Aynsly v. Reed, Dick. 249.; and 2 Chap. IV.] of an equity of redemption. 201 demption is the proper relief. And if after the master's report the mortgao-or neglects to redeem the mortgagee, the Court will, at his application, dismiss the bill as against him, which is equivalent to decreeing a foreclosure, (r) And a decree dismissing a bill for redemption will operate equally in favour of the mortgagee against any person to whom the mortgagor may, during the pendency of that suit, convey, as against the mortgagor himself, (s) And if, upon a bill to redeem, the money be not paid at the day appointed, upon affidavit of attendance at the time and place appointed, it is a motion, of course, to dismiss the bill, which will be with costs. (I) But the dismissal of a bill for want of prosecution will not prevent the mort- gagor from filing a second bill to redeem ; in which a dismissal for want of prosecution is distinguishable from a dismissal for non-payment of the mortgage money at the day appointed, (u) Another method, by which tiie mortgagor's equity of redemption may be entirely lost, is by the mortgagee's taking possession of the mortgaged premises, and con- tinuing in the quiet and uninterrupted possession of them for twenty years, without any steps taken by the mort- gagor to redeem, and without any act done by the mort- gagee to sbew that he considered the mortgage as sub- sisting. From this position it appears that in order to bar the mortgagor's right of redemption by the method, of which we are now speaking, it is necessary, — First, That the mortgagee should take possession of the estate; for if a mortgagor continues in possession, no length of time will bar the equity of redemption. And (r) Cholmley v. Countess of Ox- (i) Stuart v. Worrall, 1 Bro, ford, I Atk. 267. C. C. 581. (s) Garth y. Ward, 2 Atk. 246. {u) 18 Ves. 460, 11 Ves. 199. 202 OF AN EQUITY OF REDEMPTION. [ChAP. IV. even a possession by the mortgagor of a part of the mort- gaged premises will preserve the right to redeem the "vvhole ; for part the mortgagor may redeem as being in possession, and part he cannot separately ; so he may the whole, (x) And the nature of this possession so taken by the mort- gagee,, in order to avail him any thing, must be an adverse possession ; otherwise no presumption arises in his fa- vour. (3/) And, therefore, in the case of a Welch mort- gage, where the profits are taken in lieu of the inte- rest, where the mortgagee is always let into possession, and where the mortgagor is at liberty to redeem at any time, no continuance of possession in the mortgagee can bar the mortgagor's equity of redemption ; for, by the very terms of the agreement, there is an everlasting sub- sisting right of redemption which cannot be forfeited even at law. (z) So if a person be let into the possession of an estate to hold till out of the rents and profits he shall have received payment of his debt, which is a vivum va- dium, in contradistinction to mortuum vadium, or mort- gage ; (a) or if a transaction, originally a mortgage, be turned into a vivum vadium by an agreement that the mortgagee shall enter and hold till payment, (6) no length of possession will oust the mortgagor's right of redemp- tion. Yet, both in the case of a vivum vadium and a Welch mortgage, it has been laid down that the equity of redemption may be barred, if the mortgagee continues in possession twenty years after the money has been paid off. (c) Which, it is presumed, could be spoken only of a (x) Rakestraw v. Brewer, Sel. 1 P. Wms. 291. Cha. Ca. 55.S. C. Mosl. 189. S. C. (a) Yates v. Hanibly, 2 Atk. 2P. Wms. 511. 359. (y) 1 Mer. 125. (b) Orde v. Ileming, 1 Vern. (2) Howell V. Price, Gilb. Eq. 418. R. 106. S. C. Cha. Prec. 423. S. C. (c) 2 Atk. 362. I Mer. 125. Chap. IV.] of an equity of redemption. 203 payment by the mortgagor, had not Lord Hardvvicke said that " after the account taken, if it should appear that the mortgage was satisfied by perception of profits twenty years ago, and that the mortgagee has continued in pos- session ever since the statute of limitations will run." ((/) So it appears, that no length of possession will bar the equity of redemption where the mortgage money is pay- able on demand, unless it can be proved that the mortgagee has continued in possession twenty years after demand made, (e) Cases of fraud form an exception to every rule ; and, therefore, if the mortgagee has been guilty of any fraud in throwing in words to clog the redemption ; (/) or has prevented the mortgagor from redeeming by fraud, op- pression, or imposition ; (g) no length of possession will gain him an absolute title. Secondly. The possession of the mortgagee must con- tinue for the space of twenty years. Now, although mortgages are not within the statute of limitations, {h) yet, because it would be extremely difficult for a mortgagee, who has been long in possession, to make out an account of the profits he has received, the Court of Chancery has determined, in analogy to the statute of limitations, that twenty years shall be the time to bar a mortgagor of his equity of redemption, (t) But as the Court of Chancery has fixed upon this period of twenty years in analogy to the statute of limitations; so it has kept up the analogy to the same statute, in holding that the 20 years shall not operate to the prejudice of the (rf) In Yates u. Hambly, 2 Atk. (g-)Spurgeono. Collier, 1 Eden. 55. 363. K c?i9,e ol vivum vadium. (h) 21 Jac. 1. c. 16. (e) Ilartpole v. Walsh, 4 I3ro. (0 Jenner v. Tracey, and Belch P. C. 369. V. Harvey, 3 P. Wms. 287. note. (/) Ord V. Smith, Sel. Cha. Ca. Anon. 3 Atk. 313. White v. Ewer, 9. S. C. 2 Eq. Ca. Abr. 600. 2 Ventr. 340. 204 OF AN EQUITY OF REDEMPTION. [ChAP. IV. mortgagor if he can account for his neglect by reason of imprisonment^ infancy, or coverture, or by having been be- yond sea; and not by having absconded, which is an avoiding or retarding of justice, (k) And therefore, where a husband and wife mortgaged the wife's land, and the mortgagee took possession, and twenty-five years after- wards the heir of the wife brought a bill to redeem, the Court decreed a redemption on account of the disability of the wife. (/) But if the time once begins to run, it must run on ; and no intervention of a legal disability in the person entitled to redeem will prevent the twenty years from running. Thus, where a mortgagee recovered possession under a decree of foreclosure in 1701. The mortgagor died in 1702, leaving an infant heir, who continued an infant till 1709, and in 1721 brought his bill to redeem. The Lord Chancellor dismissed the bill, saying, " that the in- fancy of the plaintiff would not help him, the right to re- deem not beginning in his time, but in his ancestor's; and in all such cases the party was barred, and had not ten years after the impediment was removed." (??i) So if a feme covert mortgagor becomes afterwards discovert, the twenty years will run on from that time ; and, though she should marry again, it will run on during the second marriage, (w) In like manner if a feme sole mortgages, and then takes husband and dies, the tenancy by the cur- tesy will not prevent the twenty years from running on against the heir of the wife, for the heir might have re- deemed notwithstanding the estate of the tenant by cur- tesy ; and it is of no consequence to the mortgagee who (k) Jenneru. Tracey, and Belch R. 185. Knowles v. Spence, Mosl. V. Harvey, 3 P. Wms. 287. note. 225. S. C. 1 Eq. Ca. Abr. 315. St. (0 Corvel o. Sykes, 1 Cha. Rep. John v. Turner, 2 Vern. 418. 193. (n) Anon. 2 Alk. 333. (Jii) Flo}d y. Mansell, Gilb. Eq. I Chap. 4V.] of an equity of redemption. §05 has the equit}' of redemption, if they do not make use of that right: they shall be barred, (o) But if the mortg;agee purchase the estate of the tenant by the curtesy, the heir will be admitted to redeem, though tiie mortg-ag'ee may have been twenty years in possession ; because in this case lie unites in himself two characters, and must be considered as having discharged tije duties of each. As a purchaserof the tenancy by the curtesy, it was his duty to keep down the interest of the mortgage ; as mort- gagee, he was to receive it. And though in general cases a presumption arises that the equity of redemption is re- linquished where there is no payment of surplus rents, or account delivered within twenty years, such a presump- tion cannot arise where the same person is both to pay and to receive. (/>) Hitherto the analogy between the statute of limitations and the determinations respecting an equity of redemption has been found to be perfect, vi;s. that the time to bar the mortgagor shall be twenty years ; that an impediment in the person entitled to redeem shall prevent its running on ; and that, when once it does begin to run, no subsequent disability will prevent its running on. But the sim litude holds good also in another respect ; for as the Court has not thought proper to exceed twenty years where there is no disability, in imitation of the first clause of the statute of limitations ; so, after the disability removed, the time fixed by the proviso for prosecuting, which is ten years, ought in like manner to be observed : (q) for the impedi- ment having been removed, ten years is a bar to the re- demption. Thirdly. It is necessary that the possession of the mort- (o) Anon.2 Atk. 333. Corbetto. 138. See also Innes o. Jackson, Barker, 1 Anstr. 138. 16 Ves. 356.371. (p) Corbelt v. Barker, 3 Anstr. (q) Belch v. Harvey, 3 P. Wm». 755. which overruled S.C. 1 Ans-tr. 2S7. note li. 17 Ves. 99. 206 OF AN EQUITY OF REDEMPTION. [ChAP. IV. gagee should be quiet and uninterrupted^ without any steps taken by the mortgagor to redeem; and, therefore, a redemption was decreed upon a bill, though the mortgagee had been forty-seven years in possession, it appearing that the title of the mortgagee had been litigated bv the parties in five dilTerent ejectments, and only seventeen years had elapsed from the time of the last ejectment brought, (r) Yet though the mortgagor bring his bill to redeem, and obtain a decree to redeem and account, it is further neces- sary that he should prosecute his bill with effect within twenty years from the decree ; for if the mortgagee be afterwards allowed to remain in possession for twenty years, the time will again run on. (s) And, generally, whenever any act has taken place, which keeps the re- demption on foot, a fresh period of twenty years begins to run on, during which a mortgagee remaining in quiet pos- session may acquire the absolute title to the estate, (t) Fourthly. The presumption arising in favour of the mortgagee by length of possession may be rebutted by any act done by him acknowledging the existence of the mortgage, or referring his possession to his title as mort- gagee. Thus, though a mortgagee has been fifty years in possession, yet if there has been an account with the ^ mortgagor within the last twenty, a redemption will be decreed, (u) But an account delivered in by a receiver or manager of the estate under the mortgagee, without any authority from the mortgagee, will not save the equity of redemption to the mortgagor, (x) Nor will a mere de- mand of an account by the mortgagor, without process or any acknowledgment on the part of the mortgagee, pre- (r) Palmer v. Jackson, 5 Bro. (u) Procter v. Cowper, 2 Vern. P. C. 194. 377. Anon.2 Atk. 333. (*) St. John V. Turner, 2 Vern. (x) Barrow v. Martin, Coop* 418. Cha. Ca. 189. (0 1 Yes. and Bea. 639. Chap. IV.] of an equity of redemption. 207 vent the effect of the length of possession in the mort- gagee, (j/) But, in order to keep the redemption open, it is not necessary that there should be an acknowledgment arising out of some transaction directly between mort- ffacror and mortffajree. For it has been decided that a mere private account kept by the mortgagee of the profits of the estate, in which he treats it as redeemable, is a suf- ficient circumstance whereon to decree a redemption, {'s) And Lord Loughborough mentions a case where an estate came to two different hands : the part in the hands of one family was held irredeemable ; as to the other part a re- demption was decreed after a vast number of years, for the mortgagee had kept accounts. At the same time it should be noticed, that the Chancellor thouglit there had been a devise of it as a mortgage. («) Any private ac- count, however, kept by the mortgagee, will not be suffi- cient to keep open the redemption : but it must be what is called a mortgage account. The late Master of the Rolls said, that he thought an account kept by the mortgagee, in a distinct book, of the rents and profits, and of the mort- gage money and interest, with the balance struck, whereby a certain sum appeared to be due upon the mortgage, was something like a mortgage account ; but would not allow an account by a receiver of the rents and disbursements to be any thing more than an account between receiver and land-owner. It appeared that the receiver's accounts had been kept in a separate book : but upon that circum- stance he laid no weight, (b) If a mortgagee conveys, sub- ject to the equity of redemption, (c) or if he devises it by (y) 1 Ves. and Bea. 540. (6) Barrow v. Marten, Coop. (a) Fairfax v. Montague, cited Cha. Ca. 189. 192, 193. 2 Ves. Jun. 84. Campbell u. Beck- (c) Smart u. Hunt, 4 Ves. 478. ford, cited 4 Ves. 474. See also Hardy v. Reeves, IS Ves. 4oO. 3 Lake v. Thomas, 3 Ves. 17. Term Rep. 655. (a) 3 Veg, 22. 208 OF AN* EQUITY OF REDEMPTION. [CllAF. iV. the description of liis mortgaged estate, (d) either of these will be an acknovvledgmcnton which the mortgagor may be relieved. So in a case where the main ground of the de- cision was fraud, the Court expressed an opinion that the testator's saying in a will " that if the mortgage should be redeemed, the money should go," &c. would have been sufficient to preclude the objection from the length of time, as that declaration was made within the twenty years. (e) So a recital in a deed of assignment that a specified sum was due is sufficient evidence to make a mortgage redeemable, which otherwise would not have been so, on account of the length of time; and this though the assign- ment be absolute ; but then the mortgagor must take the acknowledgment altogether as it stands, and cannot shew that a less sum is due than that specified in the recital. (/) But an assignment " subject nevertheless to such equity of redemption, if any," &c. will not prejudice the mort- gagee, (g) Nor will a surrender of copyholds to the use of a mortgagee's will be any proof whether he considers the estate as redeemable or irredeemable, (h) The sur- render, however, in such case must be a simple surrender ; for if it be made '" subject to the condition in equity," it is plain proof that the mortgagee considered his estate as re- deemable. (^) An agreement between a mortgagor and mortgagee that until such a time there shall be no re- demption, is an acknowledgment by the mortgagee of his possession in the character of mortgagee, (k) So if a mortgagee agree to purchase the equity of redemption, it (rf) 2 Atk. 314. 468. 480. (e) Ord V. Smith, Sel. Cha. Ca. (h) Hardy v. Reeves, ubi suprOj 9. S. C. 2 Eq. Ca. Abr. 600. 2 Ves. jun. 22. (/) Case before Lord Kenyon (i) Martin v. Mowlin, 2 Burr, cited by the Chancellor, 2 Scho. 970. 977. and Lef. 296. (k) Ilodle v. Healcy, 1 Ve». (g) Hardy v, ReeTes, 4 Ves. 466. and Bea. 536. Chap. IV.] of an equity of redemption. 209 is sufficient to rebut the presumption arising in his favour from length of possession, (k) Or if upon a bill to redeem the mortgagee^ instead of pleading the length of possession, submit to be redeemed, a redemption will be decreed with an account. (/) For, as Lord Thurlow lays it down, if a party will admit that he is only a mortgagee, he is bound by such admission, and cannot resist redemption, (m) Prom Lord Thurlow's decision in Perry v. Marston, (n) a doubt seems to have prevailed in the profession, whether conver- sation, or a mere verbal declaration by the mortgagee, is sufficient to keep alive the mortgagors' right of redemp- tion, (o) But, from the circumstances of that case^ it will appear that his Lordship's judgment turned upon a dif- ferent point, (p) And the law, as it now stands, is, not that parol evidence shall be entirely excluded, but that, if admitted, it shall at least be clear and unequivocal. And on this latter ground it is, that most of the bills filed for re- demption, resting on parol only, have been dismissed, (q) Having considered what acts of the mortgagee will keep open the equity of redemption, it may be necessary to ob- serve that a mortgagor coming to redeem cannot have a discovery unless his bill states a case entitling him to re- lief. (?') And where a creditor entered into possession of an estate under an agreement to receive the rents in dis- charge of his debt, upon a bill for relief. Lord Eldon re- fused to compel a discovery beyond what was necessary to ascertain the nature of the original transactions, (s) {k) Conway r.Shrimpton, 1 Bro. (p) See also Coop. Cha. Ca. 5. P. C. 309. (q) Whiting v. White, Coop. (0 Proctor D. Gates, 2 Atk. 140. Cha. Ca. 1. Reeks v. Postle- (m) Perry v. Marston, 2 Bro. thwaite, ibid. 161. Ibid. 192. C.C. 397. (r) I Ves. unci Bei. S.-^Q, M\'J. in) 2 Bro. C.C. 397. Plead. 148. 2nd edit. (o) 3 Ves. 21. 1 Ves. and Bea. (s) Fenwicke v. Reed, 1 Mer. 540.; and cases iu tha two next 114. notes. 210 OP AN EQUITY OF REDEMPTION. [ChAP. IV. Fifthly, and lastly. We may consider how the mortgagee may take advantage of his length of possession, upon bills brought by the mortgagor, to be let into a redemption. At first it was considered that a mortgagee defendant, in a bill to redeem, could not take advantage of his length of possession in any other method than by insisting upon it by his answer, (l) Afterwards it was decided by Lord Hardwicke that a mortgagee might plead the statute of li- mitations in bar. (w) And, finally, it has been settled that length of possession may be insisted on by way of de- murrer, (.x) But then, in order to take advantage of this objection by demurrer, it is necessary that the bill should so state the case that there be nothing to interfere with the effect of the lapse of time, to the benefit of which the mortgagee is entitled ; (3/) though it is difficult to sup- pose a case in which the bill would not allege something to take it out of the analogy of the statute, (z) And more- over, it is necessary to the validity of a demurrer that the possession of the mortgagee for twenty years should ap- pear upon the face of the bill, (a) And, therefore, where npon a bill brought in 1793 to redeem, the bill did not state any possession in the mortgagor within twenty years, otherwise than by saying that in or about the year 1770 the ancestor of the plaintiff died, and that soon after the (0 Pearson v. Pulley, 1 Cha. Ca. 102. Anon. 2 Atk. 333.; and see 3 Atk. 225. (m) Aggas V. Pickerell, 3 Atk. 225. Clapham v. Beyer, 1 Cha. Rep. 1 10. Lake v. Thomas, 3 Ves. 17. (x) Hodle V. Healey, 1 Ves. and Bea. 536. 539. Beckford v. Close, cited 3 Bro. C. C. 644. S. C. cited 4 Ves. 476, 477. S. C. 19 Ves. 184. cited and approyed of by Ld. Eldon, Frazer v. Moor, Bunb. 54. 2 Scho. and Lef. 638. Jenner v, Tracy, 3 P. Wms. 287, note. (1/) 4 Ves. 478. 1 Ves. and Bea. 539. 19 Ves. 184. Mitf. Plead. 213. 2nd edit. Orde v. Ileming, 1 Vern. 418. Jenner v. Tracy, 3 P. Wms. 287. note. (2) 1 Ves. and Bea. 539. (a) See the references in the last note but one. Chap. IV.] of an equity of redemption. SI I plaintiff took possession. To which there was a demurrer; and the cause expressed was, that the bill only stated that in or about the year 1770, '' which is upwards of SO years before the bill filed, &c." Lord Loughborough said, " There is a vice in the demurrer which is fatal at law. It is a speaking demurrer. There is argument in the body of it, viz. " in or about the year 1770, which is upwards of twenty years before the bill filed." The pro- position in the bill is merely that the ancestor died about the year 1770, and that soon after the mortg-agor took pos- session. Therefore it was necessary for pleading any thing like correct to state positive dates. I am not to say, — how soon the drawer of the bill thought v/as soon." {b) The statute 4 and 5 W. and M. c. 16. s. 1. enacts, that if a person, for valuable consideration, suffers any judgment, and afterwards for valuable consideration mort- gages his lands, or any part thereof, without giving to the mortgagee notice in writing of the judgment, that he shall forfeit his equity of redemption to the mortgagee, unless within six months after notice given to him, by the morlgagee, he pays off such judgment, and procures it to be vacated by record. The second section of the same statute enacts, that if a person for valuable consideration mortgages his lands, and afterwards for valuable consideration mortgages them or any part thereof to a second or other mortgagee (the former mortgage not being discharged) without giving notice in writing to such second or other mortgagee of the former mortgage or mortgages ; that then such mortgagor shall forfeit his equity of redemption to such second or other mortgagee in such more than once mortgaged lands. The third section provides that a second or other mort- gagee, without notice, may redeem any former mortgage. (6) Edsell V. Buchanan, 2 Ves. Jun. 83. P % 212 OF AN EiJUITV OF REDEMPTIOH. [^ChAP. IV. And tlie fourth section saves to the widow her dower, unless she legally joins her husband in any mortgage. About fifteen years after the passing of this act a case(c) occurred, wherein it was laid down, — 1st, That a mortgage, which was originally irredeem- able under the act, would remain irredeemable in the hands of an assignee, though assigned over for what was really due thereon for principal, interest, and costs. 2ndly, That if a subsequent mortgagee should redeem such foreclosing mortgage, he should hold the estate irre- deemable. Srdly, It was observed that part of the lands being only in the prior mortgage, and new and other lands in the se- cond, was a case omitted out of the statute; and being a penal statute, it should be strictly construed : but the add- ing of an acre or two should not exempt it out of the statute ; and, though a mortgage may be originally irre- deemable, yet that it shall become redeemable in the hands of a person who has acted fraudulently in getting the mortgagor to mortgage a second time. (c) Stafford c. Selby, 2 Veru. 528. See also the Case and Opinions in S. e. 1 Eq. Ca. Abr. 320. pi. 3. Collect. Jurid. Vol. II. 241. 213 CHAPTER V. OF THE INTEREST ON MORTGAGE MONEY. T. How interest may be reserved^ and what shall be con- sidered usury. 2. When given by the Court without any reservation. 3. Who shall pay interest. And, 4. When a mortgagee shall be prevented from claiming interest. HOW INTEREST MAY BE RESERVED, AND WHAT SHALL BE CONSIDERED USURY. The statute 12 Ann. st. 2. c. 16. enacts, that no person shall take directly or indirectly more than at the rate of bl. percent, per annum for the loan of any money: declaring that all bonds, contracts, and assurances, for payment of any principal or money, to be lent or covenanted, to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of 5/. in the hundred, shall be utterly void: and subjecting all per- sons, who take, accept, or receive, by any means more than after the rate of 5/. per cent, per annum, for the for- bearing or giving day of payment of and for their money or other thing, to the forfeiture of treble the value of the monies or things lent, bargained, exchanged, or shifted. Upon this statute it was said by Lord llardwicke that if a mortgage were drawn for five per cent, only, and the mortgagee took six, it would be void upon the word 1 214 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. take: {a) but this doctrine was entirely contradicted in a late case, the Vice-chancellor saying, that '' if usurious trans- actions afterwards take place, they will not affect the pre- vious contract, that is very clear. If a bond be given, se- curing money with 5/. per cent, interest, and 71. per cent, is afterwards agreed to be given, that is usurious : but the bond is not invalidated; and the obligee has a right to the money secured by it, with bl. per cent, interest." (6) The statute has, in very general terms, prohibited the taking of more than 5^. per cent. ; and, therefore, it is con- sidered usury to make any advantage on the loan of money beyond interest at that rate, by whatever rule the benefit may be measured. Thus, where 500/. was advanced upon a mortgage, and afterwards the parties went to another place where the mortgagor offered the mortgagee 50/., who directed him to give it to his son then present, which was accordingly done; and, after that, interest was paid upon the 500/. at bl. per cent. ; it was considered usury, (c) So, where a mortgagee procured the mortgagor to ap- point him steward of a manor, the grant of the stewardship was set aside on the ground of imposition, (d) In like manner, if a mortgagee be appointed receiver of the rents of an estate with a salary for his trouble, it is an usurious contract, (e) By an act of the assembly in Jamaica mortgagees in possession are declared not entitled to any commission, ex- cept what is paid to the factor for his commission : and, in case any greater commission is demanded, a penalty of 100/. for every offence is imposed. (/) (a) Ta Adlingtont?. Caun, 3 Atk. (d) Thornhill v. Evans, 2 Atk. 154. 330. (6) In ex parte Jennings, 1 Mad. (e) Scott v. Brest, 2 Term Rep. 337. 238. 9 Ves. 271, 272. (c) Scurry v. Freeman, 2 Bos. (/) 9 Ves. 268. andPul. 381. i Chap. V.] of the interest on mortgage money. 215 But a mortgage taken to secure a reasonable commis- sioHj beyond legal interest, for extra incidental charges, as upon agency in the remittance of bills, is not usurious. (g) So whatever allowances are usually made to bankers, be- yond legal interest, may safely be secured to them by a mortgage; as commission, exchange, and discount, on bills of exchange and promissory notes, (h) A mortgagee of West India estates is allowed the benefit of a covenant for consignments, for two reasons: 1st, be- cause it furnishes him a security for his debt; and, 2dly, because the commission, which he receives, is supposed only a fair composition for his trouble, (z) And even a co- venant to continue one as consignee, after he has been re- paid his money, has been held to be good. As where A. and B., merchants of London, agreed to become sureties for C, and took a conveyance of West India plantations to secure to them what they might be called upon to pay, with a co- venant that they should be continued consignees for five years after reimbursement of their advances, the agree- ment to continue them as consignees was held good, (/t) In Palmer v. Baker, (/) upon an assignment of a contract to purchase timber, part growing and part felled, upon trust to sell, with an agreement that the assignees might retain 200/. for their trouble, besides their principal, in- terest, and costs, it was held, by all the judges in K. B., that the contract for retaining 200/. for trouble was not usurious upon the face of it: but that, in order to establish it as usury, it must be proved that the reservation was only colourable. In this case, however, we are to observe that (g) Baynesy. Fry, 15 Ves. 120.; 1 Bos. and PuU. 144. Calist r. and cases in next no(e. Walker, 2 Anst. 495. (A) Auriol V. Thomas, 2 Term (?) 1 Jac. and Wal. 261. Rep. 52. Benson v. Parry, there {k) Bunbury v. Winter, 1 Jac, cited Winch v. Fenn, stated in note, Sc Walk. 255. 2 Term Re^. 52. llammett v. Yea, {I) 1 Maul. & S'elw. 56. 216 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. the trouble of the assignees was likely to be more than ordinary ; for, as was there said, the felling the timber might have been going on for three years, during which time the assignees might have had great trouble in pro- curing fit workmen and proper markets. Besides which the assignees were not skilled in the business: they must have employed an agent; gone from time to time to the spot to see that he did his duty ; and been responsible for any grosi neglect in him. From which we may con- clude that where a mortgage deed contains a power to sell on default, the case just mentioned would not au- thorize a reservation to him of any extra allowance for trouble, unless it appears that the circumstance of mak- ing the sale is likely to be attended with extraordinary trouble. But if the principal money be really and bond fide ha- zarded, it is not usury to take more than 3/. per cent. Therefore, where there are partners, an advantage to be taken out of the trade may be measured in any way agreed on; for the money is not lying at interest, but employed in making profits subject to losses, (m) So, upon a loan of 2000/., a bond conditioned to pay 200/. at the end of a year, and the principal, or 250/. per annum, during the borrower's life, is not usurious, {n) For here, so far as the lender is concerned, the principal money is, in fact, put in jeopardy. Upon the same principle are supported the common annuity transactions, with agreements to re- purchase. A creditor for a certain sum of money, who takes a se- curity for the transfer or investment, in his name, of a cer- tain quantity of stock, fixing the amount of the stock by what the debt would have purchased according to the market price of the day, on which the security is taken (ot) Anderson v. Maltby, 2 Ves. son, 4 Term Rep. 353. Jun. 248.; but see Morne y. WiU («) Wortley v, Pitt, 1 Ves. 164. Chap. V.] of the interest on mortgage money. 217 with such interest in the mean time as the stock would have given^ if purchased, is neither guilty of usury under the 12 of Ann.^ nor is he within the prohibition of the stock-jobbing act of the 7 G. 2. c. 8.(o) So, if a lender sell stock, and pay over the money, and take a security from the borrower to replace the stock by a certain time, or repay the money, with such interest in the mean time as the stock itself would have produced; it is not usurious, though the interest exceed 5Z. per cent.(p) Yet, in such case, if the choice of paying the money, or replacing the stock, by the time appointed, depend on the Avill of the lender only, the security is clearly void a& usurious, because the lender is at any rate sure of his principal and interest, with a chance of a rise in the stock, {q) But the borrower of money, under an agreement to re- place stock, cannot take advantage of his ovvn neglect. And, therefore, where P. sold out 8000/. old South Sea annuities, and took a bond from F. to replace the stock at the end of six months, and for payment of legal interest on 7170/., the produce of the sale in the mean time. After- wards F. made default in replacing the stock ; and the matter coming on in Chancery, when the value of the stock was very much depreciated, the Master of the Rolls allowed the claimants, under E., to recover the money for which the stock was sold, with interest in the mean time at 5/. per cent, though it was insisted on the part of the defendants, that they might discharge themselves of the penalty by replacing the stock. In tlie same case his Honour observed, that if an action had been brought re- cently upon the breach of the agreement, and the stock (o) Maddock v. Rumball, 8 Rep. 531. East. 304. Sanders u. Kentish, 8 {q) Barnard v. Young, 17 Ves. Term Rep. 162. 2 Espi. 698. 44. ip) Tate V. W^llings, 3 Term 218 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. had risen, the jury would, by way of damages, have given the rise, and would not have confined it. (r) And, accordingly, in a subsequent case upon a writ of enquiry to assess damages on a bond, the only question was, whether the damages should be calculated at the price of the stock on the day when it was to be replaced, or at the price of the stock on the day of the trial, the value of the stock having risen in the mean time; and it was de- cided that the plaintiff was entitled to recover the larger sum, being that which could alone indemnify him at the time of the action brought (s) From whence it follows that upon all securities for the replacing of stock the mortgagor should be particularly careful to perform tlie condition at the very day ; for any default on his part will turn to the advantage of the mortgagee ; and, in the same proportion, prejudice him, the mortgagor. In Shepherd v. Johnson (t) this very circumstance of its being in the power of the lender, after a default once made, to take advantage of the rise in the market without any risk in case the market fell either by hastening or de- laying his suit, was urged as an objection against assessing the damages at the value of the stock at the time of the action brought; and for that purpose was cited a case be- fore Lord Kenyon : (w) but the objection was completely answered by Grose, who said, '' that it was no ansAver to say — that the defendant might be prejudiced by the plaintiff's delaying to bring his action; for it is his own fault that he does not perform his engagement at the time; or he might replace it at any time afterwards, so as to avail himself of a rising market." (r) Forrest v. Elwes, 4 Ves. 492. 2 Taunt. 257. Dutch V. Warren, cited 2 Burr. (0 2 East. 211. 1010. S. C. 1 Stra. 406. (w) Isherwood v. Seddon, cited 2 (s) Sheplierd v. Johnson, 2 Eabt. East. 212. 211. Mc. Arthur v. Lord Seaforth, 1 i Chap. V.] of the interest on mortgage iMonev. 219 If the borrower fails to replace stock according to his agreement, and the market rises in the mean time, and the cause be in Chancery, the Court will compel him to re- place it at the then price,(x) though, perhaps, the regular way would be to direct an issue quantum damnijicalus.^ij) But in order to make a mortgage for securing money in the shape of stock, free from usury, it is necessary that the value of the sum secured should be fixed by the price of stock at the day of taking the security. Wherefore, where a mortgagee took stock at 75 per cent., whereas the current price of the day was but 72^, the transaction was held to be clearly usurious, (s) So where one agreed to lend l(]00/., and for that purpose sold 1000/. South Sea Annuities, which being under par produced only 924/., and took a mortgage for 1000/. and interest, it was con- sidered usury. (a) In order to constitute usury within the statute of 12 Ann, stat. 2. c. 16. so as not only to make the assurance void, but to subject the party to the penalty, there must be both an usurious contract at the time of the loan, and an usu- rious taking in pursuance of it of money or of money's worth. (6) But the clauses of the statute, which make void the usurious security, and which subject the lender to the penalty, are distinct. (c) Therefore, if at the time of the contract no greater interest be reserved than allowed by the statute, the security is good, and no subsequent event can make it void. Yet, in this case, if the lender afterwards takes more than legal interest, though the se- curity is good, yet the penalty of forfeiting the treble (x) Lawrence'sJudgmentj 2East. {b) Scott v. Brest, 2 Term Rep. 212, 213. 241. Maddock y. Hammclt, 7 T. (/y) 4 Ves. 498. H. 184. (2) Doe dem. Davidson v. Bar- (t) Fisher v. Bcasley, Doug, nard, 1 Espi. U. 237. ^id edit. (tf) Moore v. Battie, Amb. 371. 220 OF THE ITJTEREST ON MORTGAGE MON^V. [ChAP. V. value is incurred. On the other hand the penalty may- be saved, and still the contract be void as usurious. For if more than legal interest be reserved, the security is ipso facto void under the statute ; yet if the lender never receive more than legal interest, the penalty is never incurred, (d) Which causes a distinction between a taking which shall avoid the security, and a taking which shall subject the party to the penalty : for if a part of the money be re- turned at the time, or if a premium be given for the ad- vance, the security is void as usurious: but in order tain- cur the penalty, there must be an illegal taking in respect of interest, (e) If a mortgagor on an usurious contract pay the mone}', he may afterwards, in equity, recover the surplus beyond the legal interest, though the payment was made under a decree of the Court. (/) So, indeed, he may at law re- cover the excess in an action for money had and re- ceived; (g) though it was formerly held otherwise, (h) If a plaintiff in equity pray that an instrument or security given for usurious consideration be delivered up to be cancelled, the only terms upon which equity will interpose are, the plaintiff paying to the defendant what is really and hand fide due to him. {i) And if the plaintiff do not make such offer by his bill, the defendant may demur; (k) (d) Sergeant Williams's note, 1 Saund. 295. Fenall v. Shaen, 1 Saund. 294. (e) Fisher v. Beasley, Doug. 235. Wade v. Wilson, 1 East, 195. Lloyd V. Williams, 3 Wils. 250. S. C. 2 Blackst. 792. Scurry V. Freeman, 2 Bos. and Pull. 381. (/) Moore v. Battle, Amb. 371. Bosanquet v. Dashwood, Cas. temp. Talb. 38. Doug- 697. in notisy 1 Ves. 320. 1 Fonbl. Treat. Eq. 23. 245, 246. («■) Browning v. Morris, Cowp. 792. Jaques v. Witliy, 2 H. Blackst. 65. See uLo Jaques v. Golightly, 2 Blackst, 1073. (A) Amb. 373. Tomkins v. Bar- net, 1 Salk. 22. Doug. 697. in nods. (0 Scott V. Nesbitt, 2 Bro. C. C- 649. 1 Ves. 320, (k) Mason v. Gardner, Not. 1, 1793, MS. cited 1 Fonbl. Treat. Eq. Chap. V.] ar the interest on mortgage money. 221 whereasj if the party claiming under such instrument come into equity to render his claim available, the Court will proceed upon the letter of the statute. (/) In this re- spect, too, of relief upon an equitable security, the rules of law and equity were formerly different; for in Lord Hardwicke's time the couiU of law used to consider usuri- ous securities on the face of the statutes only ; {m) and, therefore, whether the lender or borrower were the party seeking relief, held them absolutely void. But since that time the law in this respect is altered. And it is now in- cumbent upon the plaintiff to entitle himself to relief in a civil action, even at law, to shew that he has done all that equity requires, (n) But in cases of bankruptcy the rule in equity is dif- ferent. For if a creditor claiming under an usurious security come to prove, any other creditor or the bank- rupt himself may present a petition ; which he has a mode of verifying, that is not open to him upon a bill ; the Court, upon his affidavit stating the usury, put- ting the creditor to answer ; and upon a principle quite different to that which obtains in a suit, for the plaintiff in a bill could not offer to redeem without paying what was due ; but by the jurisdiction in bankruptcy, upon a petition supported by the oath of the party interested, un- answered, the security is cut down altogether ; not leav- ing the party a creditor, even for what was actually ad- vanced, (o) And if a security is said to be tainted with usury, the Court will, in the first instance, decide upon that, without directing an inquiry before the Commis- sioners, or an issue, (p) 23. Earl of Suffolk v. Green, 1 (n) Fitzroy u. Gwillim, 1 Term Atk. 450. Chauncey v. Tahour- Rep. 153. den, 2 Atk. 392. (o) 9 Ves. 84. (/) 1 Fonbl. Treat. Eq. 23. (jp) Ex parte Jennings, I Mad. (ot) 1 Ves. S20. 336 . 222 OF THE INTEREST ON MORTGAGE MONETy. [ChAP. V. The statute of usury so completely avoids the security, that it cannot be enforced at law by any person, however innocent. Therefore, it seems, that at law a mortgage given for an usurious consideration would be void, even in the hands of an assignee, for valuable consideration, with- out notice of the usury, {q) Parol evidence is admissible to shew a transaction usuri- ous ; (r) and, indeed, in many instances it is the only evidence that can be had. It was formerly holden, that if a contract were made in England for the mortgage of lands in Ireland or the West Indies, and the mortgage was executed in England, that more than English interest could not be taken upon such mortgage : (s) but that, although the contract were made here, yet if the mortgage was executed in the country where the lands lay, that the interest allowed by the law of the particular country might be taken, {t) But now, by the statute of the 14 G. 3. c. 79. it is enacted, that all mortgages and securities executed in Great Britain upon property in Ireland or the West Indies, for securing money to be there- upon really and bona fide advanced, with interest, not ex- ceeding six per cent. ; and all bonds, covenants, and other securities for payment of the same, shall be valid and ef- fectual, unless it shall be known to the lender that the mo- ney exceeds the value of the property, if it were (o be sold at the time of the advancing or lending of the money. The fourth section of the same statute enacts that the bor- rower of any mone}', under the act, exceeding the value of the property above all incumbrances at the time of the ((/) Lowe V. Waller, Doug. 736. (0 Connar v. The Earl of Bella- 3d edit. mont, 2 Atk. 381. Saunders v. (r) 3 Atk. 154. Drake, 2 Atk. 465. Champant r. (0 Stapleton v. Conway, 3 Atk. Ranelagh, Cha. Free. 128. S. C. 2 727. S. C. 1 Ves. 427. Phipps v. Vern. 395, otherwise reported. hO' The Earl of Anglesea, I. P. Wms. dily r. Bellamy, 2 Burr. 1094. G96. Chap. V.J of the interest on mortgage money. 223 borrovvin;^, shall forfeit treble the value of the sum bor- rowed, one half to the informer, and the other half to Greenwich Hospital. And the fifth section enacts that all securities under the act shall be registered where the property lies, within the time limited by the laws of the place ; otherwise, that the same shall be subject to the pe- nalties of the statute of usury of the 12th Ann., unless the mortgagee or lender shall have used his utmost endeavours to cause the same to be registered within the time limited by the act. The statute having- made effectual securities which re- serve interest not exceeding six per cent,, it follows that the rule, above-stated to have been laid down previously to the statute, with respect to the interest on Irish and West India mortgages, still holds where the interest reserved is more than six per cent, (u) The statute, moreover, is confined to cases of loans upon property, and does not authorize the taking of six per cent, interest upon mere personal contracts, (x) though a bond or covenant given as a collateral security is ex- pressly made good. (7/) The statute of the 14 Geo. 3. furnishes an instance in which the rule respecting the law of mortgages in the West Indies and England is different. But independently of such like particular laws, and the law and usage of the different islands in the West Indies, courts of justice, here, apply to the relation of mortgagor and mortgagee upon West India mortgages all the principles that exist as to that relation here, (s) If a mortgage specifies no precise rate of interest, but it be reserved generally by such words as " lawful" or " le- gal" interest, the rate of interest will be five percent, (a) Lord Eldon is reported to have said that ''in the in- (u) Mr. Saunders's note to Con- (ij) See the ] 4 Geo. 3. c. 79. s. 1 . nor V. Bellamoiit, 2 Atk. 382. (z) 9 Vcs. 271. (*) Dewari' Spaii,3TermRep.425. («) Forrest v. Elwe=!, 4 Ves. 224 OP THE INTEREST ON MORTCtAGE MONEY. [ChAP. V. Stance of a mortgage with interest at five per cent., and a condition to take four, if regularly paid ; or at four per cent., with a condition for five, if not regularly paid; at law you might, in that case, recover the five per cent., for it is the legal interest. But this Court regards the five per cent, as a penalty for securing the four; and time is no farther the essence, than that if it is not paid at the time, the party may be relieved from paying the five per cent, by paying the four per cent., and putting the other party in the same condition as if the four per cent, had been paid; that is, by paying him interest upon the four per cent, as if it had been received at the time." (6) In this position we are to observe that no difference is made be- tween the case of a reservation at five per cent, with an agreement to take four per cent, on regular payment; and a reservation at four per cent, with a condition to pay five per cent, if not regularly paid. How far it may influence future decisions it is not for us to deter- mine. But at present it cannot be supposed to have over- ruled a variety of decisions, whereby it would appear that if interest be reserved at five per cent, with an agreement to accept four if punctually paid, this condition must be strictly performed ; and the debtor shall not have relief in equity after the day of payment is elapsed, because the one percent, was to be abated on a condition, which is not performed. But if four per cent, be reserved with an agreement that if the four be not punctually paid at the day the mortgagor shall pay five, that shall be considered as a penally added ; and a court of equity will in such case relieve against it. (c) 492. 9Ves. 273. Slack u. Lowell, Barkham, I P. Wras. 652. 3 Taunt. 157. Upton u. Lord Fer- (c) 3 Burr. 1374. Barnard Cha. rers, 5 Ves. 803. 3 Ves. 134, 135. Rep. 481. 3 Blackst. Com. 432. (6) 7 Ves. 273, 274. Mosl. Holies v. Wyse, 2 Vern. 289. 247, 248. 2 Eden. 1*99. Reporter's Strode v. Parker, 2 Vern. 289. 316. quasre, 2 Vern. 316. Brown v. From which it appears that Halifax Chap. V.] of the interest on mortgage money. 225 But if an indulgence be given to the mortgagor, there is no distinction whether the agreement be to raise the rate of interest in default of regular payment, or to lower it in case of punctual payment: but it will be binding on the parties upon the ground of forbearance, the additional in- terest in that case not being considered a penalty, but as a liquidated satisfaction, fixed and agreed upon by the parties. As, where a long arrear of interest had accrued, and the moi'tgagee sent an account thereof to the mortgagor, who returned an answer, desiring forbearance, and promising to make satisfaction for the same. Lord Chancellor Parker allowed the additional one per cent, reserved, as a satis- faction for the forbearance, (r) So where one made a mortgage in Ireland to trustees for securing debts to creditors, so that no money actually passed; but the sum nominally lent was to be paid by in- stalments; an agreement that the interest of those sums should rise on non-payment at the time appointed, or within three weeks after, from five to eight per cent,, was held good, upon an appeal to the House of Lords, (sj An original covenant to turn interest into principal is not usurious: but it is discountenanced by the Courts as tending to usury, and will not be allowed, (t) Thus, where a mortgage deed contained a proviso that if the interest was six months in arrear, that then that interest should be accounted principal, and carry in- terest. Lord Chancellor Cowper decreed the clause to be V. Iliggens, 2 Vern. 134. which Pollexfen, there cited. seems contra, is misstated. Jory v. (r) Brown y. Carkham,! P. Wins. Cox, Cha. Prec. 160.; and the Re- 652. porter's note there, as to Halifax v. (s) Burton v. Slattery, 3 Bro. Higgens being misstated. Nicholis P. C. 6S. V. Maynard, 3 Atk. 519. Brown (0 9 Yes. 271. Le Grange v. V. Barkham, 1 P. Wms. 652. Stan. Hamilton, 4 Term llep. 613. af- hope V. Manners, 2 Eden. 197. firmed in Excheq. Chamb. 5 Term Mos. 247, 248.; and Mitchell v. Rep. 367. 2 II. Bla. 144. 226 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. vain^ and of no use, saying, that an agreement made at the time of the mortgage will not be sufficient to make future interest principal: but to make interest principal it is re- quisite that interest be first grown due, and then an agree- ment concerning it may make it principal, (u) And even where interest is turned into principal by an agreement made after the interest has become due, it must be upon a fair agreement, (x) For, wherever there is usury, extortion, or oppression, as in making a mortgage, and accumulating interest, the Court often directs, in the decree, to take every thing most strongly against such person ; and rightly. (^) But a first mortgagee, who has notice of subsequent in- cumbrancers, cannot turn his arrear of interest into prin- cipal, as against them, (z) The rate of interest reserved upon a mortgage may be altered by parol; for, though a written agreement cannot be contradicted by parol, yet it may be waived in part, or in the whole, or be varied, in the terms of it, by a subse- quent parol agreement. And an issue may be directed to try the existence of such an agreement; notwithstanding the plaintiff, by his answer, expressly denies any such agreement. («) (u) Lord Ossulton v. Lord Yar- 330. mouth, 1 Salk. 449. Broadway u. (y) Mitfordu.Featherstonhaugh, Morecraft, Mos. 247. Strutton v. 2 Ves. 445. Thornhill t;. Evans, Meers, there cited, S. C. cited Cas. 2 Atk. 330. Temp. Talb. 40. 1 Atk. 304. 1 (z) Digby v. Craggs, 2 Eden. Ball and Beat. 430. Ex parte Be- 200. S. C. Amb. 612. van, 9 Ves. 223. (a) Lord Milton v. Edgworth, 6 (x) Thoruhill v. Evans, 2 Atk. Bro. P. C. 580. i Chap. V.] of the interest on mortgage money. 2^27 INTEREST, WHEN ALLOWED WITHOUT AN EXPRESS RESERVATION. It being established that interest cannot be turned into principal till it has become due, and then only by an ex- press agreement, it follows that the courts of equity will never allow interest upon interest merely because the in- terest is in arrear when the mortgage is paid off. (6) If interest has been for a long time paid upon a conso- lidated sum of principal and interest, an agreement to turn interest into principal will be inferred, (c) If there be an arrear of interest due upon a mortgage, and the mortijaffee assigns the same with the concurrence of the mortgagor, all money paid by the assignee to the mortgagee, in respect of interest, shall be considered as principal, and carry interest, {d) But, where it is assigned without the consent of the mortgagor, the assignee must take it only upon the same terms with the mortgagee, (e) So, if the assignee never pays the money, but the assign- ment, instead of being bond fide and for valuable consider- ation, is only colourable in order to load the mortgagor with- compound interest, it will not be allowed to have the effect of turning the interest into principal. (/) If an estate be sold by order of the Court, and the pur- (6) Proctor u.Cowper,Cha.Prec. (e)3Atk. 271. Earl of Mac 116. Thornhill v. Evans, 2 Alk. clesfield v. Fitton, 1 Vern. 168. 332, Porter t). llubbart, there cited. S. C. (c) M'Carthy v. Llandafl", 1 Ball reported, 3 Cha. Rep. 78. Nels. & Beat. 375. C. C. 150. ((/) Ashenhurst v. James, 3 Atk. (/) Smith v. Pemberton, 1 Cha. 270. Smith v. Pemberton, 2 Freem. Ca. 68. S. C. 2Freem. 181. 1 Eq. 184. S. C. 1 Cha. Ca. 67. Ibid. 258. Ca. Abr. 329. pi. 1. Gladwin v. Hitchman, 2 Vern. 133. Q 2 228 OF THE INTEREST ON MORTGAGE MONEY. [ClIAP. V. chaser takes an assignment of the incumbrances, with the consent of the parties entitled to the estate, he will be con- sidered a creditor for the whole principal sum, so as to be entitled to interest upon the monies paid by him, in respect of interest, because the consent of the persons entitled is the same thing- as if they had been made parties to the as- signment, (g) AVhere an account is settled before a master between a mortgagor and mortgagee, the whole sum found due by him, whether for principal, interest, or costs, will be- come one consolidated sum, and carry interest: but, in or- der so to do, it is absolutely necessary that the master's re- port should be confirmed; and the interest, on the conso- lidated sum, will be accounted only from the confirma- tion; (A) but upon the principal, from the date of the report up to the time of the confirmation. {{) But a private account signed and settled between the parties will not of itself make the interest on mortgage money principal, because the land is to be charged; and the account of itself does not shew any agreement or intent to alter the interest, or the nature of that part of the debt, or turn it into principal, but in order so to do tliere must be an express agreement from the mortgagor to pay in- terest upon the interest, (k) If the mortgagor agree to make satisfaction to the mort- gagee for forbearing to call in his money, and a great ar- rear of interest incur, the Court will give the Viortgagee {g) Ashenhurst v. James, 3 Atk. 270. (^h) Kelly v. Lord Belleo, 1 Bro. P.C. 202. 4Bro. P.C. 451. 1st edit. Attorney General v. Brew- ers' Company, 1 P. VVms. 376. Ibid. 453. 480. 2 Ves. Jun. 159. Bickham v. Cross, 2 Ves. 47 1 . Per- kins V. Baynton, 1 Bro. C. C. 574. Fonbl. Tr. Eq. Vol. II. B. 1. c. 5. s. 4. (0 Jacob V. Earl of Suffolk, Mosl. 27. (k) Brown v. Barkham, 1 P. Wms. C52. Boddum v. Riley, 2 Bro. C. C. 3. Chap. V.] of the interest on mortgage money. 229 some allowance in this respect. And if there be u condi- tion in the mortgage to raise the interest on irregular pay- mentj instead of holding the advanced rale of interest as penal, it will take that as the satisfaction agreed upon by the parties. (/) In consequence of the principal, interest, and costs, be- coming one consolidated sum from the confirmation of the master's report, it follows that if the mortgagor or a subse- quent mortgagee pray any longer time to redeem, and the Court enlarges the time, it is but just and reasonable that they should pay interest upon the whole sum. (m) Where a variety of creditors pray a sale of an estate, and some of those creditors, being mortgagees, come into Court for a separate report, the Court sometimes puts it upon them to consent that, notwithstanding the separate report, that shall not carry interest on the whole sum ; for though interest on the compound sum is always allowed in favour of mortgagees, yet the Court has always consi- dered it aB discretionary ; (w) and has, therefore, varied the rate of interest on the compound sum, so as to lessen it to four per cent , where the original debt carried five per cent, in favour of other creditors, where the produce of the estate has proved deficient to pay them all. (o) But it seems that an order restraining the mortgagee from claim- ing interest on the compound sum will be made only where a deficiency in the produce of the estate is apprehended; and wiU be without prejudice, if there should afterwards appear to be a surplus. (/?) (/) Brown V. I3urkham, 1 P. 471. Asttey o. Powis, I Ves. 496, Wins. 652. 407. Badham v. Oilell, 4 Dro. (m) Neal v. Attorney-General, P. C. 447. Mosl. 246. Bickham v. Cross, 2 (o) Harris t>. Harris, 3 Atk. 722. Ves. 471. aud see cases in next 1 Ves. 496, 497. note. (p) Neal v. Attorney Genera («) Bickliam v. Ciobs^ 2 Ve£. Mosl. 246. 230 OF THE INTEREST ON MORTGAGE MONEV. [ChAP. V. In the case of an infant defendant in a bill of foreclosure, an account in Chancery will not, as it seems, convert the interest into principal ;(q) for one of the grounds on \vhich interest is turned into principal is as a punishment on the mortgagor for the non-performance of his contract, which ought not to operate against an infant. But if an infant, instead of being defendant, be the party seeking relief, as the plaintiff in a bill to redeem, and an account be taken, reported, and confirmed, there the whole sum will bear interest from the confirmation, nothing being^ more certain than that an infant is bound by an account taken in a cause, wherein he is plaintiff; more especially if he cannot shew any fraud or error to his prejudice. And, accordingly, a decree to the contrary was reversed in the House of Lords, (r) So, likewise, if an infant agrees to allow interest upon interest, and thereby receives a benefit, he will be bound by his agreement; for the law, at the same time that it pre- vents infants from doing any act to their own prejudice, enables them to do binding acts without prejudice to them- selves, and for the benefit of others, (s) Thus, where I. S. mortgaged his estate to the plaintiff, and died, leaving the defendant his daughter and heir, an infant, who had nothing to subsist on but the rents of the mortgaged es- tate ; and the interest being suffered to run in arrear three years and a half; the plaintiff grew uneasy at it, and threatened to enter on the estate, unless the interest might be made principal; upon which the defendant's mother, with the privity of her nearest relations, stated the ac- count ; and the defendant herself, who was then near of age, signed it. And the account being admitted to be fair, it was held by Lord Chancellor Somers, and affirmed by (g) Bennett u. Edwards, 2 Vern. P. C. 447. 392. (0 Co. Lit. 171. b. 172, a. 315.a. (r) Badham u. Odell, 4 Bro. Chap. V.] of the interest on mortgage money. 231 Lord Keeper Wright, that though regularly interest should not carry interest, yet, in some cases, and upon some cir- cumstances, it would be injustice if interest should not be made principal; and the rather in this case, because it was for the infant's benefit, who, without this agreement, would have been destitute of subsistence. (^ Where one mortgaged a reversion dependent upon a lease for three lives, on which a rent of 11- 10s. only was re- served, and which lease was still in being at the time of the bill brought, for 1000/. and 601. per annum interest, which was also secured by covenant. Lord Keeper North was clear of opinion that, as to so much interest as was re- served in the body of the deed, that should be reckoned principal ; for it being ascertained by the deed, an action of debt would lie for it; and, therefore, it was reasonable there should be damages given for the non-payment of that money ; and took a distinction between debt and damages; and accordingly decreed, that after a deduction of the yearly rents of the mortgaged premises out of the 60/. a-year, payable for the interest, the defendant should be allowed interest for the residue of the said 601. a-year, for which the defendant might have sued at law, and recovered damages, (u) Mr. Powell, after noticing this case, pro- ceeds, " But here we must attend to the distinction be- tween the last case, where the security for the interest rested in covenant ovli/, and the ordinary cases, where the rents of the mortgaged premises are sufficient to pay the interest; as, if this deter tnination be according to law, it appears to me it must have turned upon that point." (v) But this reasoning, if ever it prevailed, cannot be supposed to have any weight at present ; and, accordingly, we find (0 Chesterfield y. Cromwell, 1 190. S. C 2 Cha. Ca. 147. JEq. Ca. Abr. 287. (u) Pow. on Mortg., Vol. II. (m) Howard v. Harris, 1 Veru. 990, 991. 232 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. in a case which occurred about seventeen years after that of Howard v. Harris, the Master of the Rolls addressing himself to this very point, and refusing to allow interest upon interest, saying-, that though the profits were not sufficient to answer the interest, yet the arrears cannot carry interest, but the costs and charges must, {x) So that, whether the annual value of the estate exceeds the in- terest of the mortgage money or not, the rules respecting the allowing of interest on interest will be the same. Where a sale is avoided, the purchase money for which was secured with interest, and interest paid, such payments of interest must be taken as principal, and repaid with in- terest; for the transaction being avoided, the vendor is not entitled to any thing as interest. (3/) A judgment at law will have the same effect in turning interest into principal as an account confirmed in Chancery. And, therefore, where in an action on promissory notes, and also on an agreement to replace stock in the funds, and pay sums equal to the dividends in the mean time, a verdict was found giving interest on the notes, and divi- dends on the stock up to the time of the verdict, upon the affirmance in error, the Court gave interest (not further dividends) on all the capital sums recovered up to the time of the affirmance, (z) A mortgagee is entitled to all the costs and expences he may have been put to together with interest, {a) In general this interest will be regulated by the interest pay- able upon the money originally lent, and will be at the same rate. (6) At the same time, such interest being to be com- (x) Proctor z). Cooper, Cha. Prec. ran v. O'Reilly, or Anon. 7 Taunt. 116. 244. iy") Murray "o. Palmer, 2 Sclio. (a) Proctor o. Cooper, Cha.Prec. & Lef. 474. 488. 116. 3Atk. 518. 4 Ves. 482. (=) Dwyer v. Gurry, in Cam. (i) Woolley v, Drage, 2 Anstr. Scar. 7 Taunt. 14. See also Do. 551. Chap. V.] of the interest on mortgage money. 233 puted not by agreement of the parties, but by course of the Court, the rate is always in the discretion of the Court, (c) So consequent is interest upon the principal sum lent, that even a promise to give a mortgage will entitle the mortgagee to interest, (d) In an account upon a mortgage all money paid as surety is reckoned principal from the time of payment, and car- ries interest accordingly, (e) Where a mortgagor becomes bankrupt, and the mort- gage is inadequate to the payment of principal and interest, the mortgagee will only be entitled to interest up to the dale of the commission. (/) But if the mortgage is a suf- ficient security, the assignees cannot redeem without paying interest up to the time of redemption, (g) The principal money and interest upon a mortgage are not one integral sum, but are two completely distinct and independent sums, though payable at the same time, and under the same instrument; so that a mortgagee is not compellable to sue for both in the same action, but may proceed by separate actions, one for the principal sum, and another for the interest, at his election, (h) But he cannot proceed in debt for part of the principal sum, without averring in his declaration that the rest has been satis- fied. (£) But, as between the mortgagee and the estate, the in- terest on mortgage money is always charged on the same fund as the principal, (k) (c) 1 Ves. 496.; and see Lyster (g) 7 Via. Abr. 110. B. a. pi, I V. DoUand, 1 Ves. Jun. 456. and 3. (d) Anon. 4 Taunt. 876. In Cam. (h) Dickenson v. Harrison, 4 Scac. Price 282. (e) Morley v. Elwis,2Keb.376. (i) 4 Price 287, 288. (/) Ex parte Badger, 4 Ves. 165. (k) Shafto v. Shafto, 2 P. Wms. Ex parte Wardell and Ex parte (364. Cox's note. 2 Ves. 53. Harvey, 1 Cooke's Rink. Law. 105. 234 OF THE INTEREST ON MORTGAGE MONEY. [ChAP. V. WHO SHALL PAY INTEREST. If a person seized in fee make a mortgage, there, with- out question, he will be chargeable with principal and all the interest. But what if an estate which has been mort- gaged come to one for life only, remainders over? Here, according to the modern rule, it would be unjust to charge the tenant for life with any part of the principal. For- merly, indeed, it was held that a tenant for life should be charged with the principal, according to his proportion of the interest in the estate. And this interest was some- times valued at two-fifths of the mortgage money, (l) but more frequently at one-third ; (m) and the remainder- man had to pay the residue. Yet this was a most arbitrary rule ; for the tenant for life might live to enjoy the estate for twenty years, or only one year. Wherefore we find it very early laid down that in order to entitle a remainder-man to an allowance from the tenant for life, according to the pro- portion of his estate, it was incumbent upon him to come in to redeem in the lifetime of the tenant for life, for he could not after his decease compel a contribution from his assets beyond an allowance only for the time that the te- nant for life actually enjoyed the estate, (w) And in the time of Chief Baron Gilbert, the remainder-man had no di- rect way of compelling the tenant for life to join in a re- ■ (I) 1 P. Wms. 650. James v. Selby, Cha. Free. 288. Flud v. Hales, 2 Vern. 267. S. C. Cha. Flud, 2 Freem. 210. Clyat v. Bat- Free. 44. teson, 1 Vern. 404., and see Rives (m) Cornish v. Mew, 1 Cha. Ca. v. Rives, Cha. Free. 22. 1 Ves. 271. Rowell u. Walley, 1 Cha. 430. 1 F. Wms. 650. 1 Atk. Rep. 221. Ballet v. Sprainger, 467. Amb. 88. Cha. Free. 62. Howell v. Frice, (w) Clyat v. Batteson, 1 Vern. Cha. Free. 424, 425. Jones v. 404. 3 Atk. 201. Chap. V.] of the interest on mortgage money. 235 demption ; (o) though, while the old rule was acknowledged, he had. (p) But this rule, imposing upon the tenant for life the payment of a gross sum, the inconvenience of which seems to have been long felt, is now completely ex- ploded, {q) And the courts of equity endeavour, as for- merly, to make every part of the ownership bear a pro- portion of the incumbrance, only in a different manner. And it is now held that every particular tenant, be it for jycars or for life, which comprizes all the different species of life estates as those of tenants by the curtesy, and a jointress, who claims lands subject to a mortgage, shall each of them keep down the interest during the continu- ance of his or her particular estate, (r) And, in order to compel these particular tenants to keep down the interest during their respective estates, the remainder-man has his remedy in equity, (s) Which may be effected by his go- ing into Chancery, if the mortgagee is not in possession, and having a receiver appointed of the rents and profits of the estate, who will be directed to keep down the in- terest, {t) Tenant for life must also keep down the interest up to the very day of his death, and not only as far as any quar- terly or half-yearly day of payment ; for the interest on a mortgage becomes due from day to day, and the mort- gagee may call in his money, whenever he Avill. (m) If a mortgage be made of a variety of estates, part in possession, and part in reversion, expectant upon the life (o) Hungerford v. Hungerford, 480. 2 Atk. 463. Corbett o. Bar- Gilb. Eq. Rep. 69. ker, 1 Anstr. 138. S. C. 3 Anstr. (p) See and consider Clyat v. 753. 6 Dow. 21. Batteson, 1 Vern. 404. Cornish {s) Casborne y. Scarfe, 1 Atk. V. Mew, 1 Cha. Ca. 271. Hayes 606. V. Hayes, 1 Cha. Ca. 224. (/) 5 Ves. 101, 102. By Coun- ( (0 Hancox v. Abbey, 11 Ves. 60. Chap. VIJ mortgages shall be paid, 257 with the payment of a particular mortgage debt, and dis- posed of his personalty to persons who die in his lifetime, so as to make the bequest of the personalty a lapsed legacy, the personal estate will again become subject to exonerate the real. For although the intent was, that the legatee should take the personal estate exempted from the mort- gage debt; it does not follow that the next of kin shall take it so. And the legatee being dead, it is the same thing as if he had said nothing in his will about his per- sonal estate. And then the personal estate must be first applied. (/) Where lands are directed to be sold, and after payment of debts the surplus monies to go with the personal estate, so as to make them one joint fund, there is no reason for distinguishing between the application of the funds ; for the person entitled to the residue cannot fail to have the residue of that very fund which the testator has created for the payment of his debts, (w) Our observations hitherto concerning the funds out of which mortgages are to be paid have been entirely con- fined to cases where the mortgage debt is supposed to be contracted by a person master of both funds ; wherein, the rule that the personal estate sliall be first applied in payment of the mortgage, is founded on the supposition that the debt is originally a personal one, and the charge on the real estate is merely a collateral security. But in cases where the person mortgaging or covenanting to pay has so mortgaged or covenanted to pay, not for his own benefit, but for the benefit and as a surety for the person who received the money, for the further security or satis- (0 Hale V. Cox, 3 Bro. C. C. 540. 5 IQ, 547. Webb v. Jones, 2 322. Waring v. Ward, 5 Vcs. Bro. C. C. GO. Tweedale v. Co- 670. Tentry, 1 Bro. C. C. 2G0. (m) Hartley it. Hurle, 5 Ves. S Hi. 258 OUT OF WHAT FUNDS [ChAP. VI. faction of the mortgagee, or in consequence of some act or charge upon the estate brought on by a prior owner, the rule is entirely otherwise. For in these cases the land is considered the principal, and the covenant to pay only a collateral security ; and the personal estate of the co- venantor has the same equity to be reimbursed out of the land as the land is entitled to when it is pledged as a col- lateral security, (tz) Thus, where the original debt was contracted by the ancestor, the personal estate of the heir will not be ap- plied in payment of it. As if a grandfather mortgages his estate, and covenants to pay the money, and the land de- scends to his son, who dies without paying off the mort- gage, leaving a personal estate and a son, the interme- diate son's personal estate shall not be applied in payment of the mortgage ; for the debt was not contracted by liim, and so his personal estate derived no advantage from it. (o) But if the father had been executor to the grandfather, and the grandfather had left assets to the value of the debt, and the father had converted them to his own use, there so much of the father's personal estate had been liable to the payment of the grandfather's debts ; and the grandson could in such case have come upon the father's executors to exonerate the mortgage out of the fa- ther's personal estate. (/>) And it will not make it the personal debt of the heir, or take away the right which his personal estate has in equity to be reimbursed out of the lands, if, upon an as- signment of the mortgage after the ancestor's death, the heir should join in the assignment, and covenant to pay (n) 2 Cru. Dig. 177. s. 24. 1st. 664. edit. 182. s. 27. 2d edit. Butler's (o) Cope v. Cope, 2 Salk. 449. note to Co. Lit. 208 b. Cox's note S. C. 1 Eq. Ca. Abr. 270. pi. 3. to 1 P. Wms. 294. 2 P. Wms. (p) Gilb. Lex. Praet. 315. I Chap. VI.] mortgages shall be paid. 259 the money : but such covenant will be considered as en- tered into for the additional security of the assij^noe on]y.(q) And though the heir, upon an assignment of the mort- gage, should borrow a further sum of the assignee, and pledge other estates of his own as a collateral security ; yet the circumstance of the additional real security being su- peradded would not make it the personal debt of the heir ; for it does not create the debt, but only operates as colla- teral to the debt; and nothing makes it his debt so effec- tually as the covenant to pay. (r) Nor will the personal as- sets of the heir be liable even to the amount of the addi- tional charge, if it be small in proportion to the sum ori- ginally borrowed ; for the Court will not raise two pre- sumptions ; and the greater sum not being to be accounted for to the estate, it will take it that the rest was not. (.9) So if an heir, from an honourable desire to discharge his ancestor's debts, mortgages the property descended to him from the ancestor, and the whole money raised is so ap- plied, as between the real and personal representatives of (he heir, the personal estate will not be applied in aid of the real ; and it will be immaterial whether the heir gave any bond or covenant to pay or not. (t) In like manner where an heir, in order to raise money to discharge a legacy given by his ancestor's will, mortgages lands descended to him from the ancestor charged with his ancestor's debts and legacies, the lands will have no claim to be exonerated out of the personal estate of the heir, (u) (q) Bagot V. Oughton, 1 P. S. C. 1 Cox, 240. Wms. 347. Evelyn v. Evelyn, 2 (/) Earl of Tankerville v. Faw- P. Wms. 659. S. C. Fitzg. 131. cet, 1 Cox, 237. S. C. 2 Bro. C.C. Leman v. Newnham, 1 Ves. 51. 57. (r) Duke of Ancaster v. Mayer, («) Hamilton v. Worley, 2 Ves. 1 Bro. C. C. 454. 464. Jan. 62. S. C. 4 Bro. C. C. 199. (s) Lewis t'. Nangle, Amb. 151. « 9 260 OUT OF "WHAT FUNDS [Chap. VI: In all these respects a devisee of an estate is considered in the same situation as the heir. For if a devisee of an estate subject to the testator's debts mortgages to raise money to answer those debts, (x) or gives a bond, (j/) or promissory note, (s) to answer the debts or a legacy charged by the testator on the lands; yet in every of these instances the real estate of the testator will be considered as the primary fund for payment, and the personal estate of the devisee as the collateral or auxiliary fund only. So if a devisee, upon an assignment of a mortgage, joins in the deed and covenants to pay the mortgage money, with four per cent, interest, and afterwards, by another deed, covenants to raise the interest to five per cent, both the mortgage debt, the four per cent, interest, and the additional interest, will be a charge on the lands pri- marily ; for the interest must follow the nature of the principal, and the contract for the additional interest turn- ing upon the same subject must be in the nature of a real charge, (a) In no case vv-here a mortgage is a charge in the first instance on the real estate, will an intention to exonerate the real estate at the expence of the personal be collected, from the heir having subjected both his real and per- sonal estates to the payment of his debts: but it must remain charged on the estate originally liable to it. (b) Lord Northington is reported to have said, that " when (x) Perkins v. Bayntun, cited and stated in Cox's note, 2 P. Wms. 664. (f/) Basset v. Perceval, 1 Cox, 268. S. C. Cox's note, 2 P. Wms. 665. (z) Mattheson v. Ilardwick, stated Cox's note, 2 P. Wms. 665. (a) Shafto tj.Shafto, 1 Cox, 207. S. C. Cox's note, 2 P. Wms. 664. 1 Ves. 53. (6) Lawson y. Hudson, 1 Bro. C. C. 58. affirmed in D. P. 7 Bro. P. C. 511. Duke of Ancaster v. Mayer, 1 Bro. C. C. 454. Hamil- ton V. Worley, 2 Ves. jun. 62. S. C. 4 Bro. C. C. 199. Leman v. Newn- ham, 1 Ves. 51. and see Butler r. Butler, 5 Ves. 534. Chap. VI.] mortgages shall be paid. 261 &n heir inherits a mortgaged estate, he makes the debt his own by covenant and bond, and a new equiti/ of redemp- tion ; his personal estate is therefore liable to pay ; hy.Watson,3Atk.518. ley V. Drage, 2 Anstr. 551. (/*) 4 Ves. 482. (d) 4 Ves. 482. 3 Atk. 518. (0 Auon. 1 Atk. 102. (e) Hardy v. Reeves, 4 Ves. 482. 278 OF TACKINGj AND THE PRIORITY [ClIAP. VII. or TACKING WHERE ONE BUYS FOR LESS THAN THE MONEY DUE UPON THE MORTGAGE, An assij^nee or a purchaser of a mortgage, who buys it for less than the money due upon it, will be entitled to hold for what is really due upon the mortgage, and not what he gave for it, for the whole money is due from the mqrtgagor; and he shall not profit himself of the contract of the assignee, (j) But if A. mortgages to B,, and afterwards to C. ; and D. purchases in the mortgage to B. at an undervalue, knowing of the mortgage to C, there C. shall redeem paying the money that D. gave, because C. was entitled to the re- demption before D. intermeddled, and therefore D. could not intermeddle to crowd out any part of C.'s money that was secured on the estate; and, therefore, if D. has all the money that he laid out upon the purchase of the incum- brance, he ought not to hinder his neighbour from receiv- ing his own money out of the estate; for then D. would receive his own from C. with unlawful usury. But if D. was to receive the money from A., there he should have the whole money that B lent; because, as far as D. did not purchase at the price originally paid by B., it was the gift of B. But this shall not prevail as a voluntary disposition in the former case, because the money is presumed to be advanced by D. to keep outC, from the redemption. Since he was under no necessity to come into this account, he shall come in as a lender; and so, if he has his principal and interest paid, it is sufficient. But if B. had offered the re- demption to C. at the same value he sold it to D., and C. O") Phillips V. Vaughan, 1 Vern. C. R. 117. S. C, 3 Cha. Rep. 23. 336. Williams v. Springfeild, 1 Anon. 1 Salk. 155. Bromley v, Vern. 476. Ascou^h v. Johnson, Hollandj 5 Ves. 620. ^ Vern. 66. Bakerf .llellett, Nels. Chap. VII.] of incumbrances. 279 had refused it, there it had been otherwise; because then there was no injury done to C. by letting in another, when he had refused to take it ; and, therefore^ D. shall have the whole money due on the mortgage, and not what he gave only. But Chief Baron Gilbert makes a quaere : if C. had notice of the whole money lent by B. before lie lent any to A. whether D. might not have taken an assignment, and challenged the whole money, (k) It was laid down very generally by Lord Chancellor Jefferies, that where there are subsequent incumbrances or creditors in the case, there a man, that buys in a prior incumbrance, shall be allowed only what he really paid, though there was in truth a greater sum due. (/) But this rule has been since very much narrowed ; and it is now held that if a prior creditor bond fide, and without notice of the intermediate incumbrances, buys in a puisne incum- brance, he shall be allowed to hold for all the money really due, though he did not give the full value for it. (m) But still if an agent, a trustee, an heir at law, or an executor, buys in a mortgage or any other incumbrance, or contracts a debt, for less than is really due, he shall not be allowed more than he actually paid, and that whether there are subsequent incumbrances or not. (n) Tliou"'h, from a case in Vernon, it would appear, that if an heir or trustee buys in an incumbrance to protect incumbrances to which he himself is intitled, he might hold for the whole money due, and not only what he gave for it. (o) (k) Gilb. Lex Praet. 282, 283. Brailhwaite v. Braithwaite, 1 Vern. (0 Williams v. SpiJngfeiid, 1 334. Loiigt;. Cloptoii, 1 Vern. 464. Vera. 476. Long v. Cloptoo, 1. Anon. 1 Salk. 155. Anon. 2 Ventr. Vern. 464. 353. Morret v. Paske, 2 Atk. 52. (m) Morret u. Puske, 2 Atk. 52. 54. Powell v. Glover, 3 P. Wms. Long V. Clopton, 1 Vera. 464. 5 note A. Ves. 620. note («). (o) Darcy v. Hall, 1 Vern. 49. (n) Ddrcy v. Hall, 1 Vern. 49. 280 OF TACKING, AND THE PRIORITY [ChAP. VII. Where one, as guardian to an infant, took an assignment of a mortgage, although the mortgagee had never entered; yet the Lord Keeper is reported to have been of opinion, that as to the profits received out of the mortgaged lands, the guardian should be taken to be in possession as mort- gagee, and not as guardian, (p) The reporter, however, adds a quaere. And from the note to Mr. Raithby's edi- tion of Vernon it appears that the decree directed the mortgagee to account generally ; independent of which the law appears otherwise from a case reported in a note to Peere Williams, wherein a guardian compounded debts, and it was decreed for the benefit of the infant, (g-) OF TACKING WHERE THE SAME PERSON HAS TWO CLAIMS, AND ONE OF THEM ONLY IS A MORTGAGE OR A LIEN UPON LAND. Where a prior incumbrancer by mortgage, judgment, or statute staple, has a bond likewise from the mortgagor, the mortgagor in his lifetime may redeem the mortgage, &c. without paying off the bond debt, (r) But if the mortgagor dies, and the equity of redemption descends to the heir at law, a court of equity will permit the mort- gagee to tack the bond to the mortgage, because otherwise it would create an unnecessary circuity ; for if the heir were allowed to redeem on payment of the mortgage only, the estate would be immediately assets in his hands for payment of the bond, (s) And, since the statute of fraudulent devises, a devisee (/)) Bishopo.Sharp, 2Vern. 471. Archer v. Snatt, 2 Stra. 1107.— (g) Powel V. Glover, 3 P. Wms. Challis v. Casborn, Cha. Free. 407. 251. note A. (s) Troughton v. Troughton, 1 (r) Morret v. Paske, 2 Atk. 53. Ves. 87. 2 Atk. 53. 3 Atk. G30. Jones V. Smith, 2 Ves. jun. 376. St. John v, Holford, 1 Cha. Ca. 97. Chap. VII.] of incumbrajices. 281 for his own benefit stands in the same place as the heir at law would have done, and must pay both the mortgage and bond debt, for the statute makes real estates assets in the hands of the devisee for specialty debts. (0 But if the mortgagor devise for payment of debts, the mortgagee cannot tack a bond debt to his mortgage in preference to the rest of the creditors, but must come in pari passu ; for such a devise is not fraudulent within the statute 3 W. & M. c. 14. (w) So where there are several incumbrances upon an estate of a superior nature to his bond, a mortgagee cannot in- sist upon his being paid both, which would be a prejudice to the puisne incumbrances : but his bond shall be post- poned to all other incumbrancers, whether by mortgage, judgment, or statute staple ; for he has not the same equity against a puisne incumbrancer as against an heir at law, who is liable in respect of assets, (x) So, if there are other bond debts, a mortgagee will not be permitted to tack his bond debt to the prejudice of the other bond creditors, {y) So if all the assets be equitable, which is the case where there is a charge or devise for payment of debts, a mort- gagee will not be permitted to tack his debt by bond to the prejudice of the simple contract creditors; for equit- able assets are administered among the bond creditors and simple contract creditors in average ; {z) and the principle Sliuttleworth v. Laycock, 1 Vern. Powis v. Corbet, 3 Atk. 556. 245. S. C. 2 Cha. Ca. 164. Cole- (j/) Lowthian v. Hassel, 3 Bro. manu. Winch, IP. Wms. 775. S.C. C.C. 161. Anon, or Jackson t>. Cha. Prec. 511. Windham v. Jen- Langford, 2 Ves. 662. Ilartwell v. nings, 2 Cha. Rep. 247. Chitters, cited 3 Bro. C. C. 163. (0 Challisu.Casboru, Cha. Prec. Ilamerton v. Rogers, 1 Ves. jun. 407. Ileamsu.Bance, 3 Atk. 630. 513. 2 Ves. jun. 376. (m) Ileamsu. Bance, 3 Atk. 630. (:) Treat, on Eq. Book IV. Price V. Fastnedge, Ambl. 635. part 2. ch. 2. sec. 1. (x) Morret v. Paeke, 2 Atk. 54. 282 OF TACKING, AND THE PRIORITY [ChAP. VII. of the ruICj allovving- the tacking of a bond as against the heir^ is only to prevent a circuity of actions^ and will not be extended further, (a) So as against a purchaser of the equity of redemption for valuable consideration, from the mortgagor, or his heir at law, a mortgagee shall not be allowed to tack the bond to the mortgage, because the estate in the hands of such purchaser is not liable to the bond debt, (b) And where a mortgagor in his lifetime, or his heir after his decease, conveys the land for the payment of debts, the cre- ditors under the trust deed will be considered as pur- chasers, (c) A mortgagee of copyholds will not be allowed to tack a bond or judgment to his mortgage as against an heir coming to redeem, because copyhold lands are not as- sets, (d) and are not hable to be taken in execution upon a judgment, (e) If the person, claiming to tack a bond debt and a mort- gage together, be beneficially entitled to both debts, it will make no difference whether he claims them both from the mortgagor ; or whether he claims one in his own right, and the other as the assignee of the original mortgagee or obligee. (/) And it matters not whether the bond or the mortgage be the debt first incurred, (g) (a) 3 Bro. C. C. 1 63. Anon, or Jackson v. Langford, 2 Ves. 662. BoncU. Kent, 2 Vern. 281. Hearas V. Bance, 3 Atk. 630. Price v. Fastoedge, Ambl. 635. (b) Troughton v. Troughton, 1 Ves. 87. Archer v. Saatt, 2 Stra. 1107. Gory's case, 3 Salk. 240. Bayly v. Robson, Cha. Free. 89, Coleman v. Winch, 1 P. Wms. 775. S. C. Cha. Prec. 511. (c) Anon, or Jackson v. Lang- ford, 2 Ves. 662. Coleman v. Winch, 3 P. Wms. 775. (d) 4 Rep. 22. a. (e) Cannon v. Pack, 6Vin. 222. pi. 6. S. C. 2 Eq. Ca. Abr. 226. pi. 6. (/) Price V. Fastnedge, Ambl. 685. Blackwell v. Symes, cited Ambl. 686. Halliiey v. Kirtland, 2 Cha. Rep. 360. (g) Windham v, Jennings, 2 Cha. Rep. 247. ^ Chap. VIIJ of incumbrances. 283 A mortgagee cannot tack a simple contract debt to his mortgage as against the mortgagor, (h) But where a lease is mortgaged, the mortgagee may tack a bond debt, as against the mortgagor seeking a re- demption ; for the lease is a chattel interest which is liable to debts, (i) So a mortgagee of a lease, or other chattel interest, (A.) or a pawnee of chattels personal, (/) may tack a bond or simple contract debt (m) against the executor of the mortgagor. But the mortgagee of a lease cannot tack a simple con- tract debt as against a creditor of the mortgagor who brings a bill to redeem, (n) or as against a purchaser of the equity of redemption in the mortgaged term, (o) So if the executor of the mortgagor assigns over to trustees in trust for the testator's creditors, a mortgagee will not be permitted to tack, for by the assignment the equity of redemption passes over for the benefit of creditors, (p) And where there had been a decree for creditors to come in^ and afterwards the executrix brought a bill to re- deem, and the mortgagee insisted upon tacking. Lord Thurlow seems to have made it a question with the cre- ditors, and not with the executrix simply ; stating the principle that where the equity has passed to an assignee, you cannot insist upon retaining against the assignee ; and would not allow the mortgagee to tack, (q) (h) Newby v. Cooper, Finch's Cha. Prcc. 419. 2 Ves. jun. 378. Rep. 379. (/«) 1 P. Wms. 776. Eccles u. (0 Hallilcy v. Kirtland, 2 Cha. Thawill, Cha. Free. 18. Hep. 360. (n) 1 P. Wms. 776. 3 Bro. C. (/c) Anon. 2 Vern. 177. Cole- C 23. man v. Winch, 1 P. Wms. 776. S. C. (o) Ibid. Cha. Prec. 511. 6 Ves. 229. (;;) Adams u.Claxton, 6 Ves. 226. (/) Demainbray v. Metcalf, 2 (q) Vanderzee v. Willis, 3 Bro. Vern. 690. S. C. Gilb. 104. S. C. C. C 21. 6 Ves. 229. 284 OF TACKING, AND THE PRIORITY [ClIAP. VII. And in Demainbray v. Metcalf, which was the case of a pledge of jewels^ and where it was held that the executor of the pawnor must pay the whole, it was admitted that if there had been bond creditors, or if the pawnor had be- come bankrupt, the pawnee could not have tacked the notes to the pawn so as to have preferred himself to the other creditors, (r) OF TACKING WHERE THE SAME PERSON HAS TWO CLAIMS, BOTH MORTGAGES, OR ONE A MORTGAGE AND THE OTHER A LIEN UPON LAND. Where a person has one or more estates mortgaged to him by the same or different instruments, for securing the same or different sums of money, no person claiming under the mortgagor, be he creditor, subsequent incumbrancer, or purchaser, can redeem a part or one only of those estates ; but he must redeem them both, and entirely, (s) And this rule will be the same, though there be freehold and copyhold mortgaged together, and a bond creditor come to redeem, and it be insisted that as to the copyhold he need not redeem, because they are neither assets, nor liable to an execution, {t) So, if personal securities be deposited as a pledge, and afterwards the pawnee take a mortgage of lands for securing a different sum of money, a creditor claiming under the mortgagor, and having a specific lien on the personalty, cannot be admitted to re- deem the personal securities without also redeeming the (r) Gilb. 104. S. C. Cha. Free. Pierce, 2 Vern. 480. S. C. Cha. 420. 6Ves. 229. 2 Ves. jun. 378. Free. 237. Fope v. OqsIow, 2 (5) See the cases cited ia the Vern. 286. And see Aldrich v. three subseciuent notes. Cooper, 8 Ves. 382. (0 Acton V, Acton, or Acton v. Chap. YIL] of incumbrances. 285 mortg-aged lands, (u) And if two estates be mortgaged to the same person by different instruments for securing- dif- ferent sumSj and afterwards the mortgagor mortgage or sell one of those estates to another person ; yet such sub- sequent mortgagee (x) or purchaser (3/) cannot redeem the estate so subsequently mortgaged or sold, without also redeeming the other estate, although at the time of the mortgage or sale he had no notice of the mort- gage of the other estate. So if, upon the death of a mortgagor of two estates, the estates become divided, and go in different channels, viz. one of them to A. and the other to B., a subsequent mortgagee claiming under A. cannot redeem the part comprized in his mortgage only, but must redeem the entire mortgage, (z) And for the same reason neither could A. redeem one estate without the other. But where a subsequent mortgagee or incumbrancer has redeemed a prior mortgagee, he will have the same right in equity to insist upon an entire redemption, as against any other person coming to redeem him, and may hold the lands till he is repaid all that he gave in discharge of the first mortgagee, as well as all that is due upon his own mortgage. («) The advantages arising to the mortgagee from this power of tacking two mortgages together is in some in- stances very considerable ; for if a mortgagee has a se- curity insufficient in value to secure his debt, he may af- (m) Jones V. Smith, 2 Ves. jun. cases in next note. 372. Decree there reversed in D, (1/) Ex parte Cartefj Amb, 73 J. P. See 6 Ves. 229. note. CatOr v. CharUoii, and Collet v. (x) Titley V. Davis, cited Amb. Munden, cited and stated 2 Ves. 733. S. C. 2 Eq. Ca. Abr. 604. jun. 377. pi. 35. and 36. S. C. 15 Vin. 447. (:) Palk v. Clinton, 12 Ves. 48. pU 19. Tribonrg o. Pomfret, Amb. («) Titley v. Davis, 2 Eq. Ca. 733. stated. 12 Ves. 59. and see Abr. 604. pi. 36. 2 28G OF TACKING,, AND THE PRIORITY [ChAP. VII. tcrwards by obtaining- another security more than suf- ficient cure the defect^ and retain till both sums are paid. Which rule of tacking; two mortgages together applies with equal force against the mortgagor, (b) or his heir, (c) coming to redeem, as against any person claiming under them. So, if the first security be defective in point of title, the mortgagee may tack his two securities together, as against the mortgagor or his heir, claiming by descent. (cZ) But if one take a mortgage in fee from a tenant for life, he cannot afterwards, by taking an assignment of a mort- gage made by the remainder-man, be enabled to tack his two mortgages together, because as to the first mortgage the remainder-man (though he be also heir at law) is a stranger to the tenant for life, (e) In Jones v. Smith (/) it was said, that a man who hap- pens to be engaged with another in one mortgage only, may redeem, though the other has pledged another estate : but that case, with its circumstances, which it must be al- lowed are rather special, reversed as it has since been by the House of Lords, seems to be against this position. If a mortgagee lends more money upon security of the mortgaged lands, without notice of an intervening incum- brance, he may tack the further advance to his original sum, as against the intervening incumbrancer, the mort- gagor, and all persons claiming under him. (g) (b) Roe dera. Kay v. Soley, 2 Blackst. 726. Pope v. Onslow, 2 Vern. 286. (c) Purefoy v. Purefoy, 1 Vern. 29. Shuttleworth v. Lacock, I Vern. 245. Margrave v. Le Hooke, 2 Vern. 207. (d) Margrave v. Le Hooke, 2 Vern. 207. (e) Bromley v. Hammond, 2 Cha. Ca. 23. S. C. 1 Eq. Ca. Abr. 32G. pi. 12. (/) 2 Ves. jun. 376. Dec.-ee there reversed in D. P. see 6 Ves. 229. note. (g) W.Kely.6. Goddardu. Com- plin, 1 Cha. Ca. 119. Blackston V. Moreland, 2 Cha. Ca. 20. Chap. VII.] of incumbrances. 287 But since the statute ofTrauds, in order to create a further charge,, the agreement for it must be in writing; a memorandum in writing that so much more is due may create a debt by simple contract, but cannot do more, (h) So a bond from mortgagor to mortgagee for payment of arrears of interest with interest, though it will not waive the claim of the mortgagee for interest on his mortgage money, yet will not without a special agree- ment entitle him to tack the compound interest to his mortgage. (/) It need scarcely be noticed that, in order to enable a mortgagee to tack a subsequent advance, it must be made to a person having a right to charge the lands ; so that if the mortgagor devise away the estate' and die, and the mortgagee, having no notice of the will, advances more money upon credit of the security to the heir at law, he cannot tack his further advance to the original mortgage debt as against the devisee, (k) Where a mortgage deed contains a clause securing not only the sum lent, but future advances, and the mortgagee afterwards lends money upon the faith of this clause, he will have a lien upon the lands for both sums ; and he may tack his further advance to his original debt, not only as against the mortgagor, but as against a subsequent mortgagee, though at the time of making the further advance he had notice of the second mortgage, provided ) So if a mortgagor devises his estates for payment of debts and dies, and the mortgagee, after his death, sues his executor on the bond, and obtains judgment, the mort- gagee cannot tack this judgment to his mortgage to the prejudice of the other creditors of the mortgagor, whether by specialty or simple contract; and this, for three reasons, first, because the mortgagor, by having devised his estates for payment of debts, has made them equitable assets which are administered amongst the creditors by specialty and simple contract equally; (q) secondly, because it has been decided that under such circumstances a mortgagee can- not tack a bond debt to the prejudice of the other cre- ditors ;(r) and, thirdly, which is a consequence of the last, that, if he cannot tack a bond debt, he cannot alter the case by obtaining a judgment on his bond. But in this case, if the executor pay the judgment debt out of the personalty, a Court of equity will not make the mortgagee refund, (s) (p) Dreertoii u. Jones, 1 Eq.Ca. 614. Sharpe v. Scarborough, 4 Abr. 325. pi. 10. Stephenson v. Ves. 338.; and see ante, pa. 186., Hayward, Cha. Prec. 310. as to administration of equitable (q) 3 and 4 W. and M. c, 14. assets. Deg V. Deg, 2 P. Wms. 416. ; and (r) Ileamsu. Ounce, 3 Atk. 630, cases cited by Mr. Cox, in note 2. Price v. Fastnedge, Anib. 685. there. Bath v. Bradford, 2 Ves. 590. (s) Wilson v. Fielding, 10 Mod, Lingard v. Derby, 1 Bro. C. C. 311. 426. Iluglies V, Doulben, 2 Bro, C. C. 1 296 OF TACKING, AND THE PRIORITY [ChAP. VII. But a subsequent mortgagee may tack, though the mort- gagor, at the time of making such subsequent mortgage, had nothing to mortgage. As if one mortgage to A., and then convey the equity of redemption absolutely to B., and after that mortgage the same lands to C, who has no no- tice of the sale to B., C. may take in the mortgage to A., which will entitle him to hold against B. till both mortgages are paid, (t) The protection afforded by a court of equity to a puisne mortgagee, without notice, who has taken in a precedent judgment statute or recognizance, will not be varied by such judgment, &c. having been previously satisfied, pro- vided they can be made use of at law. (u) Nor does it matter whether the puisne mortgagee took in the judg- ment previous to his mortgage, or after, (x) So a prior incumbrance will protect a subsequent mortgagee in equity, although no consideration were paid for it; (3/) or if the consideration be by way of exchange, (z) And if a mortgagee has taken in a satisfied statute, the mesne incumbrancer cannot, by taking out letters of adminis- tration to the cognizee, and procuring the statute to be vacated, deprive the mortgagee of the benefit of it; but he will be put in the same plight as if the statute were never vacated. («) In order to enable a mortgagee to tack two mortgages together, it is necessary that he should have them both in (0 2 Collect. Jurid. 241. 248, 249.; and see Oxwith t). Pluramer, Gilb. 13. S. C. 2 Vern.636. (u) Edmunds v. Povey, 1 Vern. 187. Stanton :;. Sadler, 2 Vern. 30. WymoDsel v. Hawland, cited 2 Vern. 159. Anon. 2 Cha. Ca. 208. llacket V. Wakefield, Hard. 172. videtur contra. Sed vide Higgon v, Syddal, I Cha. Ca. 149. (x) Huntington v. Greenville, 1 Vern. 52. (j/) Holt V. Mill, 2 Vern. .279. S. C, 1 Eq. Ca. Abr. 323. pi. 3. Culpeper's case, cited 2 Freem. 124. (s) Churchill v. Grove, 1 Cha. Ca. 35. Nets. 89. (a) Huntington v. Greenville, 1 Vern. 49. Chap. VII.] of incumbrances. 297 the same right. For if a prior mortgagee takes an assign- ment of a third mortgage, as a trustee only for another person; or, if a third mortgage come to him as executor, he shall not be allowed to tack the two mortgages together to the prejudice of intervening incumbrancers; for, if this were permitted, a mere stranger purchasing the third mort- gage, by declaring he bought in trust only for the first mortgagee, might tack both together, and defeat all the other incumbrances. (6) And so it is with respect to a judgment : a mortgagee cannot tack them together, where the mortgage and judg- ment are held in different rights, (c) We have already noticed that a third mortgagee, with- out notice of an intervening mortgage, by taking in a first mortgage or judgment, will be protected against the mesne mortgagee: but the rule is by no means confined to the taking in of one incumbrance only. For if a fifth mort- gagee, without notice of a fourth mortgage, were to take in the three preceding mortgages, he might hold as against the fourth mortgagee till the three first as well as the fifth mortgage were paid ofif. (d) So if there were a moi igage, a judgment, a mortgage, and then another mortgage, if the last mortgagee took in the first mortgage and judgment, he might hold against the second mortgagee till the first mortgage, the judgment, and also his own mortgage, w^ere paid off. (e) If a man borrow money on a note of hand, and express in the note that it shall be secured by mortgage on his es- tate, and the note-holder finding that he had before mort- gaged his estate, take in a prior mortgage, he may tack his (b) Morret ?). Paske, 2 Atk. 53. by's note. Barnett o. Weston, 12 Ves. 130. (d) Cockesc. Sherman, 2 Frecm. (c) Morret v. Paske, 2 Atk. 53. 13. Mrs. Symonds' demand in Bristol (e) Marsh v. Lee, 2Ventr. 337. V. Hungerford, 2 Vern. 525. Raith- S. C. 1 Cha. Ca. 162. 298 OF TACKING, AND THE PRIORITY [ChAP. VII. note to the first mortgage; for there is nothing in this case to vary it from the case of a first, second, and third mort- gage, where the last mortgagee, after having notice of the second mortgage, takes in tlie first. (/') If the first mortgage comprize only a part of the land contained in the third mortgage, it will protect but that part. As if a man seized of sixty acres mortgages twenty to A.J and then the whole to B., and afterwards mortgages the whole to C, and C. purchases in the first mortgage, that shall not protect more than the twenty acres : but it shall protect those twenty acres, so as B. shall never re- cover that until he pay C. all the money upon the first and last mortgage, (g) But if the first mortgage comprizes more than the third, but not more than the second mortgage, the third mort- gagee may hold all the lands in the first mortgage till he is satisfied both his securities, (A) Whence it follows that if a man seized of the manors of A. and B. acknowledges a statute, and then mortgages both manors to C, and afterwards only one of them to D., and D. takes in the statute, he may hold both manors against C. till he is satisfied both the statute and the money due upon his own mortgage ; (i) unless, indeed, as has been before observed, the penalty of the statute shall have been previously satisfied. A prior mortgage can be no protection to a subsequent mortgagee as against a mesne mortgagee, until the condi- tion be forfeited ; for, till then, the estate remains liable to defeated at law by performance of the condition, (k) (/) Matthews v. Cartwrlght, 2 Cha. Ca. 212. Marsh v. Lee, 2 Atk. 317. Ventr. 337. 339. S. C. 1 Cha. Ca. ig) Marsh t). Lee, 2 Ventr. 339. 162. 166. 168. Videtur contra. (h) Boveyu.Skipwith, 1 Cha.Ca. (k) Hitchcock v. Sedgwick, 2 201. Vern. 160. 2 Yes. jun. 376. (e) Windham ». Richardson, 2 Chap. VII.] of incumbrances. ^99 A subsequent mortgagee^ without notice at the time of advancing his money of a prior mortgage, may also protect himself against the prior mortgagee, and acquire a pri- ority over him by taking in an outstanding term for years created prior to either of the mortgages, and attendant upon the inheritance, whether by express agreement or by construction of equity. For the equity between the two mortgagees is equal ; and the subsequent mortgagee, having' also the law on his side, shall have a priority in payment over the first mortgagee, (l) And for the same reason an outstanding- term for years taken in by a mort- gagee, will protect him, and give him a preference over all other charges and incumbrances brought upon the estate between the creation of the term and his mortgage. But an outstanding term can never be a protection against any charge or incumbrance of which the mortgagee had no- tice at the time of advancing his money. It is also a rule in equity, in settling the priority of in- cumbrances, that that incumbrancer shall, in payment, be preferred who has the best right to call for the assignment of an outstanding term. And therefore, where there was a question which should be preferred, a first mortgagee, who had the first declaration of the trust of the term, or a second mortgagee, who had a subsequent declaration of the trust, but had the custody of the deed. Lord North- ington held that a declaration of trust, in favour of an in- cumbrancer, was tantamount to an actual assignment, un- less a subsequent incumbrancer bond fide, and without no- tice, procured an assignment. And the custody of the deeds respecting the term, with a declaration of the trust of it, in favour of a second incumbrancer, was equivalent to an actual assignment; and, therefore, gave him an advantage over the first incumbrancer, which equity would not take (0 Willoughby v. Willoughby, Morgan, 1 Term Rep. 755. 6 Ves. 1 Term Rep. 763. Goodtitle y. 184,185. 10 Ves. 260. soo OF TACKING, AND THE PRIORITY [ChAP. VII. from him. (m) So if a mortga*;"ee has the deed creating^ the term in his possession, it will give him a priority over the former incumbrancers, (w) And as to all subsequent incumbrancers, it is very clear that if he has all the deeds relating to the term in his hands, no use can be made of it against him. Where a mortgagee makes the trustees of a term parties to his conveyance, it is considered tantamount to a declaration of trust in his favour, and will protect him against mesne incumbrances: (o) but nothing short of an actual assignment will protect a mortgagee against the mortgagor's wife's right of dower, (p) Thus we see that a mortgagee may gain a priority over mesne incumbrances, either by taking an assignment of the term, making the trustee of the term a party to the instrument, or taking possession of the deed creating the term, (q) And that, as between two incumbrancers, a mortgagee with an actual assignment, or with a declara- tion of trust in his favour, and the custody of the deed creating the term, shall be preferred to a mortgagee who has only a declaration of trust. (?) It has sometimes been argued that if a subsequent in- cumbrancer were to take an actual assignment of a term, he would be protected against one who had only got pos- session of the deed creating it: but Lord Eldon has de- cidedly expressed his opinion against this distinction; and his opinion is conformable to Lord Hardwicke's, and seemingly to Lord Northington's also, (s) His lordship (m) Stanhope v. Earl Verney, Butler's Co. Lit. 290. b. note 1. sec. 13. S. C. 2 Eden. 81. (n) Maundrell v. Maundrell, 10 Ves. 260. 271. Ex parte Knott, 11 Ves. CI 2, 613. 1 Term Rep. 762. (o) Wilkest'. Bodington,2Vem. 599. 10 Ves. 270. (p) Maundrell v. Maundrell, 7 Ves. 567. 10 Ves. 246. (q) 10 Ves. 271. (r) Stanhope v. Earl Verney, But. Co. Lit. 290. b. note (1.) s. 13. S. C. 2 Eden. 81. (s) See Stanhope v. Earl Verney, But. Co. Lit. 290. b. note (1.) s. 13.S. C. 2 Eden. 81. Chap. VII.] OF INCUMBRANCES. 201 put it upon this ground, that if a purchaser has got the original title deed to the term, the Court cannot be satisfied that there is any truth in the assertion, that the legal estate is in the person, who the adversary says has it. (t) And Lord Hardwicke thought, that as you cannot ip many cases trace the representative, if the purchaser uses so much diligence as to take possession of the deed, a court of equity ought not to compel him to produce that deed to his prejudice, (u) But Mr. Powell has given it as his opinion, that if a case should arise, in which the non-pos- session of the title deeds, and amongst others of the deed creating the term and the deed assigning it, can be ac- counted for in a satisfactory manner, either by such pur- chaser having had a probable cause assigned him, from whence he may presume that there were no title deeds be- longing to the estate, or of an incumbrancer taking his estate from one who has no right to the title deeds, and who, therefore, would not give them up, as a mortgagee of a reversion, (the title deeds in such case belonging to the tenant for life,) that, in such case, the possession of the title deeds, though comprizing among them both the deed creating and the deed assigning the term, would not be a good defence against a prior purchaser or in- cumbrancer for a valuable consideration, without notice, who should get an actual assignment of such term from the person in whom the legal estate therein should be vested, (x) (/) Ex parte Knott, 11 Ves. 609. 61'i, 613. {u) Ex parte Knott, 11 Ves. G 13. Willoughby v. VVilloughby, 1 Ter. Rep. 7o3. 772. But under circum- stances it seems that a mortgagee, having the legal estate, would be possession of title deeds, pieferred to one having the custody of the deeds only. See the in- ferences drawn from Plumb v. Fluilt, pfst. (x) 1 Pow. on Mort. 510, 4th edition. And see Tourle v. Rand, and the cases cited, post, uuder 302 OF TACKING, AND THE PRIORITY [ChAP. VII. From the case of Willoug-hby v. Willoughby, before Lord Hardvvicke, (j/) we may conclude that, in order to en- title a mortgagee to the benefit of a legal term got in by him, there should at least be three requisites. 1st, He must be a mortgagee for a valuable consideration. 2dly, He must not have had notice of the prior charge or in- cumbrance against which he seeks to be protected at the time of advancing his money. And, 3dly, He must have taken his mortgage bona fide, without any intention of gaining an unfair advantage over a prior incumbrance or estate, of which he has notice. For if a mortgagee, with notice of a jointure, annuity, and portions, charged upon an estate, should take a mortgage to himself absolutely, with a covenant that the estate was free from incum- brances, except an old term assigned to a trustee for him, and the mesne assignments thereof, thereby plainly in- tending to conceal that full notice which he had of the jointure, annuity, and portions, (which would appear by his not admitting notice, but putting the plaintiff upon the proof of it,) in such a case, the mortgagee would lose the benefit of the term, as against the jointress, not only as to the jointure annuity, but as to a previous mortgage made to her, and would be postponed to the jointure, the por- tions, and the jointress's mortgage. For the jointress, as claiming an estate of which the mortgagee had notice, has a better or preferable right to call for an assignment of the outstanding term for years than the mortgagee; or she might by injunction prevent the trustee from recovering in ejectment against her. And when that was done, she might protect her mortgage by it by compelling the mortgagee to redeem her in respect of the arrears of her annuity ; and then he must redeem her entirely, {z) But (j/) 1 TermRen.763.Butler'sCo. loughby, in Chancery, reported 1 Lit. 290. b. note (1.) s. 13. Term Rep. 763. S. C. Ambl. 282. (s) See Willoughby v. Wil- S. C. 1 Collect. Jurid. 337. I Chap. VII.] of incumbrances. 303 I conceive that the mala fides of the mortgagee, as to an incumbrance of which he has notice, is not sufficient to take from him the benefit of a term got in by him in favour of another prior incumbrancer of whose estate he had no notice, unless such prior incumbrancer has a better right to call for an assignment of the term as by having custody of the deed creating it. (a) The case of Wil- loughby V. Willoughby, however, it should be observed, would have been decided in favour of the jointress upon her equitable right to call for an assignment of the term in preference to the mortgagee, independent of the cir- cumstance of mala fides in the mortgagee. For Lord Hardwicke had decided the question upon that ground, and makes use of the mala fides of the mortgagee as a cir- cumstance in corroboration only of his opinion against him. (6) But in a late case before the present Lord Chief Baron Richards, at Gray's Inn Hall, (c) it was held that a co- venant to stand possessed for one, to secure him a certain sum of money, was not tantamount to an assignment of the term, so as to enable him to tack a subsequent advance as against a mesne mortgagee. In that case A. having a term vested in him to secure a sum of money for B., upon an advance by C. of 2900^., agreed with C. to stand pos- sessed of the term to secure him his 2900/., and interest. Afterwards a mortgage was made of the same lands to D., who, at the time of his mortgage, had notice of the mort- gage to C. Then C. took a second mortgage of the es- tate for a further sum of money. And it was held, that the effect of A.'s covenant with C. was only to make A. a trustee for C. to the extent of the 29(X)/., and interest, and did not give C. a right to call for a conveyance of the legal (a) As to this point see Ex parte (c) Frere u. Moore, and others, Knott, 11 Ves. 612,613. andante. Grays' Inn Hall, 8th July, 1820. ib) I Term Rep. 773, 774, 775. MS. 304: OF TACKING, AND THE PRIORITY [ChAP. Vll, estate, so as to enable him to tack his second mortgage to his first to the prejudice of D.'s mortgage. But that the two mortgages to C. and the mortgage to D. must be paid according to their priciities. And it was further held that there was no laches in D. for not having notice given of his mortgage to C, when his (D.'s) mortgage was made. It has not yet been determined what is the precise situa- tion of a trustee who has an outstanding satisfied term for years vested in him, and assigns it over to a subsequent mortgagee. From some saving expressions in Willoughby V. Willoughby, it cannot be conceived that Lord Hard- wicke meant to determine that the trustee, aware of the prior incumbrance, would be safe in making the assign- ment to a subsequent incumbrancer, any more than a trustee to preserve contingent remainders joining to de- stroy them. At the same time he thought that the pur- chaser or subsequent incumbrancer, provided he had no notice of the prior incumbrance at the time of his pur- chase, would be safe in taking the assignment if he could get it. {d) Upon this it has been observed, that if the pur- chaser would be safe, the trustee ought to be so too. (e) But there is no incongruity in Lord Hardwicke's opinion ; for his lordship does not say that a purchaser can in every instance make use of the term : but he makes the time at which the purchaser or subsequent mortgagee had notice of the former incumbrance to form the criterion whether he shall be able to make use of the term or not, putting it just upon the same footing as the case of a trustee to preserve contingent remainders. '' If such a trustee join in a conveyance to a purchaser for a valuable considera- tion, and the purchaser has notice of that trust, the latter is affected with the trust, and shall be decreed to reconvey {(l) 1 Term Rep. 770, 771. 11 Ves. 613, 614. at the top of the (p) Per Lord Chancellor Eldon, page. Chap. VII.] of incumbrances. S05 the estate to the old uses. But if the purchasei comes in bond fide, and has no notice, he shall retain the estate : but the trustee shall make satisfaction for his breach of trust in destroying the contingent remainder. It is just the same here, if the puisne purchaser or mortgagee has no- tice" (which must be intended at the time of his purchase or mortgage,) " of the prior purchase or incumbrance. He shall not avail himself of the assignment of the terra : but shall be decreed to reconvey, or procure it to be recon- veyed. If he has no notice, he must retain it : but if the trustee, who joined in the assignment, had notice of such prior purchase or incumbrance, his conscience was af- fected by the trust ; it was a breach of trust in him ; and he ought to be decreed to make satisfaction. This," said his lordship, '' in my opinion, is what equity would demand." (/) In a case Ex parte Knott (g) Lord Eldon, alluding to the case of a trustee, with notice of a prior in- cumbrance, assigning to a subsequent purchaser or mort- gagee, observed, that he had not made up his mind that the Court would not restrain the trustees from permitting their names to be used by such subsequent purchaser or mortgagee. And, in a still later case, (Ji) his lordship said, " Is there any case where a third mortgagee has excluded the second, if the first mortgagee, when he conveyed to the third, knew of the second ? When the case of Maundrell V. Maundrell (i) was before me, I looked for, but could not find, such a case ; that, where there was bad faitii on the part of the first raorlgagce, that equity was applied." To which Sir Samuel Romilly replied, that he " did not believe that was ever decided ; and there would be great difficulty in deciding it in favour of the third mortgagee, (/) 1 Term Rep. 771. Seethe (h) Mackreth y. Symmons, 15 Reporter's note, 15 Vcs. ^'S&. and Ves. 335. 10 Ves. 260, 261. Charlton v. Low, 3 P. Wms. 330. ' (0 10 Ves. 2 16. is) 11 Ves. 613, 306 OF TACKING^ AND THE PRIORITY [ChAP. VII. who puts himself in the place of the first." These ex- pressions, however, go far enoui^li to shew that a prior mortgagee or trustee, with notice of an intervening or prior incumbrance at the time of assigning his term, puts himself in a very hazardous situation ; and that at pre- sent it is doubtful whether this notice to the first inart- g-asee or trustee is not sufficient to affect the conscience of the third mortgagee so as to prevent him from making use of the term. But if a trustee of a term has in any manner given an incumbrancer a better right to call for a conveyance, as by making himself a party to his conveyance, the Court will prevent a subsequent purchaser from getting an as- signment. (A,*) And by consequence, if a subsequent mortgagee at the time of taking in a term, or legal estate, has notice of its being vested in the assignor upon express trusts, he cannot protect himself as against the cestuis que trust, claiming under these trusts, though he advanced his money originally bond fide, and without notice. {I) But a term taken in by a subsequent mortgagee cannot enable him to alter the order of the incumbrances from what they originally stood so as to acquire a priority in payment, or entitle him to tack his own mortgage debt to that which he has bought in as against the mesne incum- brancers, unless it carries with it the legal estate, (m) Therefore, if a mortgage be made to A., and afterwards the same lands be mortgaged to B., and then a third mort- gage be made to A., but the legal estate is outstanding in C, A. must first be paid his first mortgage, then the mort- gage to B. must be paid, and after that the second mort- {k) Wilks J. Bodington, 1 Vern. Rep. 769. 771 . Ithell v. Beane, 1 509. lOVes. 270. Ves. 215. (0 Sanders z). Deligne, 2 Freem. (;«) Clarke v. Abbott, Barnard. 123. S. C. 2 Vern. 271. Wil- Cha. Rep. 462, 463. loughby V, Willoughby, 1 Term I Chap. VII.J of incumbrances. 307 gage to A. (n) For it is a rule in equity, that in all cases, where the legal estate is standing out, the several incum- brances must be paid according to their priority : qui prior est in tempore, potior est jure ; which goes updn this principlcj that the first in point of time has the best right to call for a conveyance of the legal estate, (o) But this is a question which does not depend upon time only ; for, as we have already seen, a subsequent equitable incumbrancer may in some cases have a better right to a conveyance of the legal estate, than a prior incumbrancer, as if he has possession of the deed creating the legal term, &c. (p) So where a subsequent mortgagee agreed to buy in a statute, but it was not assigned to him upon a bill brought by mesne mortgagees to be let in on payment of what was due on the statute, and to have it assigned to them, and insisting that the subsequent mortgagee could not tack because he had not law and equity on his side, for the statute was not assigned to him, the Lord Chancellor was strongly of opinion against the plaintiil's. (q) In Nairn v. Prowse, (r) it was made a question whether a mortgage by deposit of title deeds should be preferred to the equitable claim of a vendor for purchase money un- paid. Romilly, who argued for the mortgagee, compared it to the case of 1st, 2nd and 3rd mortgagee, wliere the mortgagee who had the best right to call for a conveyance (n) Frere v. Moore and Others, (p) Maundrell u. Maundrell, 10 before ChiefBaron Richards, Gray '.s Ves. 260. 271. Ex parte Knott, Inn Hall, July 8, 1820. MS. 11 Ves. 612, 613. Wilkes v. Bod- Co) Willoughby o. Willoughby, ington, 2 Vern. 599. 10 Ves. 270. 1 Term Rep. 773, 774. S. C. Amb. Stanhope v. Earl Verney, Butl. Co. 282. 7th Resol.in Brace y. Duchess Lit. 290. b. note (1.) s. 13. S. C. of Marlborough, 2 P. Wms. 495. 2 Eden. 81. atid see supra, p. 300. Clarke v. Abbot, Barnard. 455. — (q) Wyndham v. Richardson, 2 Ex parte Knott, II Ves. CIS.— Cha. Ca. 213. Becket v, Cordley, 1 Bro.. C. C. (r) 6 Ves. 752, 353. X 2 SOS OF TACKING, AND THE PRIORITY [ChAP. VIP, of the legal estate would be preferred; and argued that the possession of the deeds gave him this right over the vendor. But it being held that the vendor, by having taken a spe- cial security for the purchase money, had waived his equit- able lien, the point was not decided. Amongst equitable incumbrances, mortgages are not preferred to others, which are liens upon land ; but mort- gages, judgments, statutes, and recognizances, all take place according to priority, and as they stand in order of time, (s) But if a man agree to mortgage his estate, and after- wards conveys away the land, or devises upon trust foi' general creditors, the claim of the mortgagee will be pre- ferred to that of the general creditors ; for the general cre- ditors cannot stand in any other way than the person from whom they claimed at the time the act was done in their favour. And if there are any judgments subsequent to the contract to mortgage, a court of equity will controul the eftcct of those judgments in favour of the mortgagee. (0 In like manner, and upon the same principle, in cases of bankruptcy, where there has been a mortgage by deposit, the claim of the general creditors, or assignees, has been universally postponed to that of the mortgagee, {u) And the rule is the same where one mortgages by a de- fective conveyance, and tiien becomes bankrupt. As where one surrendered copyhold by way of mortgage, which sur- render was void for want of timely presentment, and then became bankrupt, the creditors under the commission were postponed to the mortgagee ; for such defective surrender operated at least as an agreement to mortgage as against (s) Bristol V, Hungerford, 2 and Lef. 381. Vern. 525. Syrames v. Symonds, (m) Pye v. Daubuz, 2 Dick. 759. 1 Bro. P. C. 66. S. C. 3 Bro. C. C. 595. And see (0 Sir Simeon Stuart's case, cited the other cases cited in Chap. I. and stated 3 Ves. 574. 582. 2 Scho. in treating of equitable mortgages. Chap. VII.] op incumbrances. S09 the bankrupt; and the creditors claiming- under him stand in his place,, and come under the same obligation in con- science, to make good the defective security, (x) So if a man mortgages by a defective conveyance, as a feoffment void for want of livery, and tliere are subsequent creditors, whose debts did not originally affect the land, equity will supply such defective conveyance against such subsequent incumbrancers who acquired a legal title after- wards ; for since the subsequent creditors did not originally take the land for their security, nor had in view an inten- tion to affect them, when afterwards the lands are affected, (which would be the case of creditors by simple contract or bond, obtaining judgments,) and they come in under the very person that is obliged in conscience to make the de- fective security good, they stand in his place, and shall be postponed to such defective conveyance, (j/) But if A. makes a defective mortgage to B., and A. con- tinues in possession, and afterwards gives a bond to C. with warrant of attorney to confess judgment, and C. enters judgment immediately ; there it should seem that the bond, warrant, and judgment, are to be looked upon as one act, and that C. had the land originally in view for his security; and there B. cannot have relief against C. upon the de- fective conveyance, in a court of equity. (^) But if a man mortgages lands by a defective conveyance, and afterwards mortgages to a second person by an as- surance that is good and effectual, without notice, the second shall prevail, because that carries the legal title ; and equity will not interpose when both are equally upon (x) Taylor v. Wheeler, 2 Vern. Nels. 183. Gilb. For. Rom. 228, 564. S. C. 1 P. Wins. 280. S. C. 229, 230. 2Salk. 449. (z) Gilb. For. Rom. 230. And (. Case, 2 Smith, 1 Mad. 395. Term Rep. 491. S. C. 1 Bro. C. C. (a) Mestaer v. Gillespie, 11 Ves. 125. 637. (x) Mair V. Glennie, 4 Mau. & (6) Hubbard v. Johnstone, 3 Sel. 240. Hay v. Fairbairn, 2 Taunt. 208. Barn, and Aid. 193. S.C. 1 Holt 322 OF THE POSSESSION [CllAP. VIII, If the vessel be in port at the time of the mortgage^ the mortgagee must immediately take possession, (c) Upon the same footing as the assignment of the ship it- self stands the assignment of a cargo or goods in a ship at sea ; for, if there be a mortgage of the cargo or goods in a vessel at sea^ and the bills of lading and policies of in- surance are delivered over to the mortgagee, and the mortgagor, before the ship returns, becomes bankrupt, the claim of the assignees will be postponed to that of the mortgagee, for the mortgagee has the best possession the circumstances of the case will admit. (c?) And whether there be an express assignment of the bill of lading, or there be only an agreement to assign, that can make no difference, as neither conveys more than the equitable title. As was determined where there was an agreement to assign and a delivery over of letters of advice, and policies of insurance, and the bills of lading were as- signed over on their arrival, but the mortgagor had be- come bankrupt in the mean time. In which instance we are to observe there could be no inconvenience, nor inlet to fraud ; for no other person can be taken in to lend money on the cargo, after the party has delivered over all the do- uments to him who has the first lien.(e) Yet, as a mortgagee of a ship at sea must take posses- sion of the ship immediately upon its arrival in harbour, so ought a mortgagee of a cargo or goods on board a ship at sea to take possession immediately upon their arrival. If the consignee of bills of lading assigns them over by way of mortgage, the consignor cannot afterwards stop them in transitu; for although, as between the consignor ar.d consignee, the actual ownership is not altered until (c) Hall V. Gurney, 1 Cooke's 160. S.C. 2 Term Rep. 491. B. L. 333. Stephens v. Sole, 1 Ves. (e) Lempriere v. Pasley, 2 Term 352. S. C. 1 Atk. 157. Hep. 485. (d) Brown v. Heathcote, 1 Atk. Chap. VIII. j of chattels personal. 323 delivery of the goods, so that the consignor may stop them in transitu to the consignee, in case of his insolvency, not having paid for them ; yet, as between the consignor and an assignee of the consignee for valuable consideration, bond fide and without notice of the non-payment, the right of the consignor to stop in transitu is devested, (/) But a factor cannot pledge goods consigned to him to sell ; and, if he does, the mortgagee or pawnee cannot re- tain them, as against the principal, although he had no no- tice that the person with whom he dealt was a factor onlv, and although the bill of lading do not designate that the consignee should fill the character of factor only, (g) But if the pawnee be the broker, authorized by the factor to sell, and the money were advanced for any purposes con- nected with the sale, and for which brokers in the ordmary course of disposing of goods are accustomed to advance it, the pawnee or broker would have a lien in respect of such advance, (h) Or, if the factor, by the assent of his princi- pal, exhibited himself to the world as owner, and by that means obtained credit as owner, the principal would be liable who furnished the means, (i) It was decided, once, that if a factor pawns goods, though to one without notice, and the pawnee will not admit that they were the goods of the principal, the Court of Chancery will order the pawnee to let the principal look at them, that he may be thereby enabled to maintain an action at law. (A:) But where a tenant for life had pawned (/) Lickbarrow v. Mason, 2 Rep. 604. Newsom v. Tlionitoii, Term Rep. 63. \ H. Black. 357. 6 East. 17. Martini v. Coles, 1 2 H. Black. 211. 5 Term Rep. 3G7. Mau. and Selw. 110. and cases 6 East. 20. in note. 5 Term Rep. there cited. 683. Approved of by Lord Kenyon (h) 1 Mau. and Sehv. 147. in Salomons v. Nissan, 2 Term Rep. (i) De Leira v. Edwards, 1 Mau. 674, and Selw. 147. (ff) Paterson v. Tasli, 2 Stra. (/c) Marsdeny.Panshall, 1 Vern. 117$. Daubigny r. Duval, 5Ter. 407. Y 2 324 OF THE POSSESSION [ChAP. VIll. plate^ upon a bill for discovery brought by the trustees. Lord Thurlow thought thata plea of lending 6o«a^rfe, and without notice, was sufficient, saying " that he could not see any room to distinguish it from the case of a discovery sought for of the title of the purchaser ; but the same rule must apply, namely, that a purchaser without notice, and for a valuable consideration, is not bound, in conscience, to assist the right owner in the legal recovery of the sub- ject purchased under such circumstances." In the principal case, however, the plea being insufficient on another point, he over-ruled it. (Z) Upon which the trustees brought their action at law, and recovered the plate, (r/i) A broker cannot pledge the goods of his principal ; and, if he does, the pawnee, claiming under such tortious act of the broker, cannot retain them against the principal for the lien which the broker has on the goods for the general balance due to him at the time of the pledge. But this is confined to the case of a broker undertaking to pledge the goods of his principal as his own ; and does not extend to the case of one who, intending to give a security to ano- ther to the extent of his lien, delivers over the actual pos- session of goods, on which he has the lien, to that other, with notice of his lien, and appoints that other as his ser- vant to keep possession of the goods for him, in which case he might preserve the lien, (ji) A bailee of goods, having them in his possession for safe custody, cannot pawn them : but the bailor may recover them from the pawnee, though at the time of the pawn he had no notice of his ownership, (o) The possession of a holder of a bill of exchange is very different from that of a factor for the purpose of render- (0 Hoare v. Parker, 1 Bro. C C. Rep. 376. 378. See also Earl of Macclesfield (n) M'Combie v. Davies, 7 East. V. Davis, 3 Ves. and Bea. 16. 5. (m) Hoare v. Parker, 2 Term (o) Hartop v. Hoare, 3 Atk. 44. Chap. VIII.] of chattels personal. S25 ing bills of exchange negotiable. The right of property in them passes with the bills^ and the property and posses- sion are ever inseparable ; so that if an indorsee of a bill of exchange deposit it with A., to receive when due, and A. deposit it with B. as a security, and become bankrupt, the indorsee cannot recover it from B. (p) But a person, who has title deeds lodged with him for a particular purpose, cannot raise money upon them by way of mortgage by depositing them over : but the mortgagee or pawnee will be decreed to deliver them up to the right owner, for it was his own fault to take possession of the deeds without inquiring into the title, (q) An agent or attorney, having a power (o sell, assign, and transfer stock in the public funds, cannot transfer it under the power by way of mortgage : but, if he does, the mortgagee will be decreed to retransfer it to repay the dividends he may have received, and to pay the costs of the suit. But it would be otherwise if the mortgagee had no notice of the power ; and this it seems it would be very easy for the agent or attorney to effect, by first selling the stock into another name, and then buying it back in his own. (r) But, to return to what shall be considered a sufficient taking possession of chattels personal. Where A. and B., merchants at Liverpool, wishing to draw on C. and D., bankers and merchants in London, agreed to consign to them as a collateral security hemp and iron to the amount of 10,000/. on sale for their account, and afterwards sent to them the invoice and bill of lading indorsed in blank, but the ship was prevented froni leaving Liverpool by an embargo, and while the ship was lying at Liverpool A. and B. became bankrupts ; it was held that the goods be- (p) Collins V. Martin, 1 Uos. bottom, 1 Mar. 414. S. C. 6 Taunt, and Pul. 648. l^. S. C. 4 Camp. 12U (q) Jackson v. Butler, 2 Atk, (;•) De Bouchout y. Goldsmidj 306. See also Hooper v. Rams- 5Ves. '2U. 326 OF THE POSSESSION [ChAP. VHL longed to C. and D., and not to the assignees in bank- ruptcy of A. and B.; for the moment the goods were put on board, and the bill of lading was indorsed and remitted to C. and D., the property was changed, and was to re- main in their hands cloathed with the trust expressed in the agreement, (s) And, indeed, so decisive is the evidence of ownership, which the possession of the bill of lading carries with it, that if a mortgagee of a cargo should actually take pos- session of the cargo, but leave the bill of lading with the mortgagor, a bond fide indorsee of the bill of lading, though subsequent to the mortgage, might oust the title of the mortgagee, {t) The opinion of the judges in Lucas v. Dorrien (?*) is very strong to shew that goods lying in the warehouses of the West India Dock Company will pass by the indorse- ment and delivery over of the dock checks or warrants : but clearly so if the indorsee or holder of the warrants jrives notice of the transfer to the Dock Company before the bankruptcy of the vendor. As was held by Lord EUenborough, that the mere giving notice to (he whar- finger, without any actual transfer in his books, or any other thing done thereon, was effective to complete the transfer of property, {v) If there be an absolute bill of sale of goods to a mort- gagee, it is considered fraudulent and void, unless posses- sion accojnpanies and follows the deed, which in this case must be taken immediately upon the execution of the bill of sale:(t«) but if the conveyance or bill of sale be con- («) Haille v. Smith, 1 Bos. and 29. Zwinger v. Samuda, 1 Moo. 12. Pul. 563. (v) Harmanc. Anderson, 2 Camp. (0 Nathans v. Giles, 5 Taunt. 243. 7 Taunt. 289. Hammond v. 658. 564. 574, 675. S. C. 1 Mar. Anderson, 1 New Rep. 69. JoneS 226. V. Dwyer, 15 East. 21. (m) 7 Taunt. 278. S. C. 1 Moo. (w) Bamford v. Baron, 2 Term Chap. VIII.] of chattels personal. 327 ditional, there the mortgagor's continuing in possession does not avoid it. (x) Which distinction we find recog- nized by Lord Ellenborough in Muller v. Moss, above cited, where the vendor continued in possession'; his lord- ship there saying, that it was a part of the contract that the bankrupt should remain in possession during the three months; but that it might have been a very ditferent thing, if the bankrupt had retained the possession without its be- ing a part of the contract. And it further appears from Kidd V. Rawlinson, and Cadogan v. Kennet, above cited, in which the conveyance was held to be not fraudulent, though possession was not delivered at the time, because the want of immediate possession was at least consistent with, and followed the deed, according to the contract en- tered into between the parties. But if the bill of sale be absolute, and the mortgagee does not take possession till after the death of the mortgagor, he will be considered an executor de son tort, and will be liable to be charged as such, (t/) But in order to oust the mortgagee's right to the goods on account of the possession of the mortgagor, and to bring the case within the statute of the 13 Eliz. c. 5. or the 21 of Jac. I. c. 19., it is necessary that the mortgagee should be a consenting party to the fraudulent possession of the mortgagor. For if a question arose on tlie case of a mortgage of goods, or an absolute sale, and t!ie vendor did not deliver them at the time appointed ; but on trover against iiim kept the vendee at arm's length, and in the mean time became bankrupt ; this would not be considered as a leaving of the goods by the vendee in possession of Rep. 594. note. Ibid. 594, 595, Cha. Free. 287. Steward v. Solrao, 596. Stone v. Grubham, 2 Buistr. 1 Bro. and Bing. 506. Stone v, 217. Grubham, 2 Buistr. 217. (x) Edwards v. Harben, 2 Term (j/) Edward v. ilarbcn, 2 Term Rep. 587. Buckuell v. Roiston, Rep. 587. 328 OF THE POSSESSION [ChAP. Vlll. the bankrupt within the act, the vendee having done every thing in his power to get possession from him. So upon a mortgage of goods contracted for, and agreed to be de- livered into the party's hands, or the key of the warehouse (which in bulky goods is all that can be done) but no such delivery is made ; and a bankruptcy follows ; detinue hav- ing been brought for them, they would not be considered as having been left in the possession of the bankrupt ; the pursuit in a court of justice excluding any actual or pre- sumed consent, (z) Where a farmer gave a bill of sale of all his farming stock to secure a debt, and the agent of the vendee took possession, and resided on the farm while he converted the stock ; but the vendor also continued to reside on the farm, and exercised acts of ownership over parts of the stock: it was held that the debt being bond fide due, and the bill of sale taken with a view to recover that debt, the jury were warranted in finding the bill of sale good against a judgment creditor who had taken the stock under an execution. And though it was alleged that there was suf- ficient stock left to satisfy the debt after having satisfied the judgment, yet this circumstance was not allowed to avail the judgment creditor on account of the fluctuating value of the property at the time of the bill of sale, (a) If one partner mortgage his share of the stock in trade to another, the mortgagee must take the sole possession of the entirety, though as partners they were originally pos- sessed per mie et per tout ; for if the mortgagee permit the mortgagor to continue as half owner of the stock in trade, and the mortgagor become bankrupt, his possession will be considered to fall within the statute of the 2 1 st of James. (6) (?) West V. Skip, 1 Ves. 244. v. Smith, 1 Camp. 333, contra. (a) Benton u.Thornhill,2Marsh. (6) Ryall v. RoUe, 1 Atk. 165. 427. S. C. 7 Taunt. 149. Jezeph S. C. 1 Ves. 348. t>. Ingram, 1 Moo. 189. Wordall Chap. VIII.] of chattels personal. 329 And, a fortiori, if a partner mortgage a share of his in- terest in the partnership stock in trade to a stranger, and continue in possession, and become bankrupt, the stranger cannot claim any of the property mortgaged, or any share of the profits arising from the trade in respect of the mort- gaged property, but only as a general creditor, (c) It has very frequently been decided that plate, china, furniture, &c. which are settled to go as heir looms, {d) or are settled for the benefit of children, (e) cannot be taken in execution under the IS Eliz. c. 5. for a debt contracted by the tenant for life; though in these cases, as to the world in general, he appears the ostensible owner, and that be- cause the settlement was made with no view to defraud others. So where a widow, administratrix of her former husband upon her second marriage, agreed that some plate should be at her own disposal, and died leaving it to her children. Lord Hardwicke held that the children were entitled to the plate in preference to the assignees in bankruptcy of the second husband, because the bankrupt had not the plate in his own right. (/) Upon the same principle in Lockyer v. Savage, (g) where 4000/., the lady's fortune, was, by settlement pre- vious to marriage, vested in trustees for the husband dur- ing his life, with a direction that, if he failed in tlie world, the trustees should not pay the produce of it to him, but apply it to the separate maintenance of his wife and child- ren, it was held that the provision for the wife's main- (c) Ryallc. Rolle, 1 Atk. 165. Rep. 618. Ilaselington y. Gill, 2 S. C. 1 Ves. 348. Term Rep. 597. S. C. 3 Term Rep. (rf) Cadogan D. Kennett, Cowp. 620. note. Lady Arundellr. Phipps, 432, Foley v. Burneli, Cowp. 435. 10 Ves. 139. ia note. Earl of Macclesfield v. (/) Ex parte Marsh, 1 Atk. 158. Davis, 3 Ves. and Bea. 16. {g) 2 Stra. 947. (e) Jarman v. Woolloton, 3Ter. 330 OF THE POSSESSION [Chap. VIII. tenance was good against the creditors, as it was not a provision out of the bankrupt's estate, but a settlement of her own fortune. Conditions of which sort have since become very frequent, and are always supported : (h) but the law is always taken with the distinction laid down in Lockyer v. Savage, that a stipulation of this sort cannot be sustained in a settlement of the husband's property, (i) The statute of James does not apply to chattels real, or to fixtures annexed to the realty ; but only to chattels per- sonal and moveable. And, therefore, if there be a mort- gage of a lease, fixtures, and furniture, and the mortgagor continue in possession and become bankrupt, the mort- gage will still remain valid as to the lease and fixtures, though the furniture will vest in the assignees, (/c) Where one mortgaged lands and a windmill standing upon part of the land, and continued in possession, a cre- ditor of the mortgagor's took the mill in execution, where- upon the mortgagee brought his action. And at the trial on the assizes before Dallas, C. J. two questions were made : 1st, Whether the windmill was affixed to the freehold, or a mere chattel ; and, ^dly. If a chattel, whether the pro- perty in it passed to the mortgagee, he never having taken corporal possession. The jury found that the windmill was not a fixture: but gave a verdict for the plaintiff; which verdict the defendant obtained leave to move to set aside. And the matter coming on in the Common Pleas, the Court avoided entering into the question whether fixture or no fixture : but held that the mortgagee was not (h) Ex parte Cooke, 8 Ves. 353. note to Fearne's Coat. Rem. 249, Hinton, Ex parte, 14 Ves. 598. 250. 6th edition. Matter of Meagham, a bankrupt, 1 (k) Ex parte Quincey, 1 Atk. Scho. and Lef. 179. Higginson v. 477. Reed v. Blades, 5 Taunt. Kelly, 1 Ball, and Beat. 252. 212. Horn v. Baker, 9 East. 213. (0 See the cases cited in the 1 Bred, and Bing. 612, 613. two last notes. See also Butler's Chap. VIII, ] of chattels personal. 331 oblig-ed to take possession ; and refused to set aside the verdict on account of the peculiar nature of the chattel which could not pass from hand to hand ; Richardson, J. saying, that though, in the estimation of the jury, this was considered a chattel, yet it is quodam modo annexed to the land, and very distinguishable from that species of goods of which the property usually accompanies the possession. {I) Debts and choses in action are within the statute of James. The consequence is that if they remain in the possession, order, and disposition, of the bankrupt, at the time of the bankruptcy, they will pass by the assignment to the assignees. Therefore, in order completely to devest the bankrupt of such debts, he must have done every thing that is equivalent to a delivery of chattels personal, that is, of moveable goods: and the judges, at least one. Sir Thomas Parker, says, that which is equivalent to delivery of move- able is, in the case of a debt, an assignment and delivery of the security, if any, and notice to the debtor of the as- signment. Thus, if a bond is assigned, the bond must be delivered, and notice must be given to the debtor: but in assignments of book debts notice alone is sufficient, be- cause there can be no delivery ; and as to bills of exchange or promissory notes they are assignable at law. It might, perhaps, have been a question, whether, after assignment and delivery of the security to the assignee, the bankrupt could be said to have the order and disposition, merely be- cause there was no notice to the debtor of the assignment. Probably that requisite was added; as otherwise the debtor might safely pay the money to the person who had, with- out his knowledge, ceased to be his creditor. The debtor would be bondjide in making the payment; and it would be impossible to make him pay again. Sir Thomas Parker lays it down certainly that there must be that notice, (w) (0 Steward v. Lolme, 1 Bro. & (wi) Jones v. Gibbons, 9 Ves. Bing- 506. 410. Ryall y. Rolle, 1 Atk. 177. 332 0¥ THE POSSESSION [ChAP. Vlll. But, however this may be, it is certain that if a mort- gagee of lands, on a forfeited mortgage, assign his mort- gage, and become bankrupt, the mortgage debt will not vest in his assignees under the commission, though the as- signee of the mortgage has neglected to give notice of the assignment to the mortgagor. For the land is the princi- pal, and he who has the land has in effect the debt; and the law will be the same, though there be a bond or co- venant to accompany the mortgage, and the assignee neg- lect to give notice, (w) Stock in the public funds, where it is so situated as to be incapable of an actual transfer, will pass by an assign- ment by deed. And, therefore, where one had invested 3000/. three per cents, in the joint names of himself and the Drapers' Company, to secure to them the payment of the rent on a lease of certain premises granted to him by the Drapers' Company, and agreed to assign it over as a security, and became bankrupt; Lord Eldon held that the 21 of Jac. 1, c. 19. did not vacate the second security ; for the bank would not take notice of an agreement to trans- fer. And the bankrupt having only an equitable interest, and no power to make an actual transfer, his equitable in- terest passed by the agreement, without his legal interest, which he could not part with.(o) And, as between different persons claiming equitable liens on stock, the same rule holds good in payment, of preferring him who is the first in point of time that has been established between incumbrancers on real property ; and a second bond fide incumbrancer of stock obtaining an actual transfer may, in like manner, postpone a prior in- cumbrancer of the equity only. Thus, where Lady Shuld- ham, upon the marriage of her son, agreed by deed-poll that certain monies due to her upon mortgage should ini- S. C. 1 Ves. 367. Ex parte Ruffin, (o) Ex parte Kensington, 2 Ves. 6 Ves. 128. & Bea. 79. 2 Term Rep. 490, 491. (n) Jones V, GibboDSj 9 Ves.407. Chap. VIII.] of chattels personai. 333 mediately upon her decease become the property of her son ; after which the mortgage money was paid off by in- stalments, and invested in Exchequer bills^ and subse- quently in the three per cents. ; and then she assigned the stock, bought with the Exchequer bills, and also other stock, to her bankers as a security, but no transfer was ever made to the bankers. Sir W. Grant held, that the re- presentative of the son was entitled to so much of the stock as was proved to have been purchased with the produce of the mortgage money, for that the deed-poll gave the son an equitable interest, which would stand good against any per- son taking by assignment: but as he had only an equitable title, it would not have availed him against a bond fide trans- fer for a valuable consideration, (p) But in all cases of a mortgage of an equitable interest in stock, or of a chose in action (which applies also to the assignment of a mortgage) the mortgagee should give no- tice of his mortgage to the trustee, or to the person liable to pay, that he may be bound by the equity of the mort- gagee. And the same precaution should be observed with respect to a trustee of a term for years, when a mortgagee leaves a legal estate outstanding. In which case, if the trustee should afterwards assign to a subsequent mortgagee, he would be answerable to the first mortgagee for a breach of trust, as appears from the case of Willoughby v. Wil- loughby, above cited. And this notice should be given in the presence of a witness, and in writing ; a copy of which the witness should keep. Which copy may be given in evidence, {q) If the mortgage be made by assignment of a debt, the mere act of assignment does not entitle the mortgagee to maintain an action for it. The debtor may refuse his as- (p) Liebmanc. narcourt,2Mer. (?) Surtees u. Hubbard, 4 Espi. 513. 2 Term Rep. 490. '203. 334 OF THE rossEssioN, &c. [Chap. Vlll. sent; he may have an account against the assignor^ and wish to have his set off: hut if there is any thing hke an assent on the part of the holder of the money, in that case^ it seems that the mortgagee or assignee may maintain as- sumpsit for it, which is an equitable action, (r) But the mortgagee may sue in the name of his principal or mort- gagor, if the mortgage deed gives him a power of attorney to get in the debt. Or he may recover it in a court of equity, though there be no such power. But a power of attorney from the mortgagor for the mortgagee to sue, and recover the debt in the name of the mortgagor, ought never to be omitted in preparing a mortgage of a chose in action. (r) Surtees v. Hubbard, 4 Espi. 204. 335 CHAPTER IX. OF THE POSSESSION OF TITLE DEEDS— OF THE REGISTRATION OF DEEDS RELATING TO PROPERTY LYING IN THE REGISTER COUNTIES— AND OF FRAUD IN A PRIOR INCUMBRANCER. SECTION I. OF THE POSSESSION OF TITLE DEEDS. The possession of the title deeds is a matter of the first consideration with every person having an incumbrance on realty, the want of them in many instances leading to the most serious consequences. Judge Buller, indeed, is re- ported to have said, " that it is an established rule in a court of equity that a second mortgagee, who has the title deeds, without notice of any prior incumbrance, shall be preferred; because if a mortgagee lends money upon mort- gage, without taking the title deeds, he enables the mort- gagor to commit a fraud." («) And this position is fully (a) Goodtitle U.Morgan, 1 Term 168. 2 Anstr. 440. Rep. 762. 1 Ves. 360. 1 Atk. 336 OF THE POSSESSION OF TITLE DEEDS. [ClIAP. IX. borne out by the case of Stanhope v. Earl Verney,(6) where the second mortgagee, without notice, having the custody of the deeds respecting a term for years, and also a declara- tion of trust, was preferred to a first mortgagee, who had a declaration of trust only. But the rule, as thus laid down by BuUer, is confined to the case of a mortgagee not taking possession of the title deeds, where the legal estate is outstanding and out of him ;(c) for, as Mr. Fon- blanque observes, to lay it down as applicable to every case, in which the mortgagor appears in possession of the deeds, at the time of the second mortgage, were not only to break in upon the authority of many decisions, but also, under some circumstances, to endanger the equity which it professes to promote. It would postpone the first mort- gagee of an estate, held in joint-tenancy, or in common, the joint-tenants being equally entitled to possession of the deeds. The whole of the premises contained in the deeds must be in mortgage, though the intent of the parties might extend to only a particular part of them ; or the mortgagee of the part must retain the possession of the deeds which respect the whole, {d) Wherefore it is now settled that nothing but fraud or gross and voluntary negligence on the part of the first mortgagee, in leaving the title deeds with the mortgagor, shall be a reason for postponing his priority, (e) Therefore, where it appeared that the mortgagor ob- tained possession of the title deeds from the firs' mortgagee, upon a reasonable pretence. Lord Cowper dismissed the (6) In Chancery, July 27, 1761. (e) Tourle v. Rand, 2 Bro. C.C. Butl. note to Co. Lit. 290. b. sec. 632. Evans v. Bicknell, 6 Ves. 183. 13. S. C. 2 Eden. 81. Barnett v. Weston, 12 Ves. 130. (c) SeePiumbc. Fluittj2Anstr. 133. Plumb o. Fluitt, 2 Anstr. 440. 432. Gillespie v. Coutts, Amb. (d) 1 Fonbl. Treat. Eq. 164. 6 652. Ves. 190. Chap. IX.] of the possession ot title deeds. 337 bill brought by the second mortgagee to postpone the first. (/) But in such case, if the first mortgageCj upon having the deeds returned to him, has also notice that the property has been mortgaged to another person, and makes no complaint or exception thereto, but remains for a longtime quiescent, this, together with the long acquiescence, would amount to an implied consent on his part to the subsequent mortgage, and would postpone him. (g-) Where it appeared that the first mortgagee had required, and was assured by the mortgagor that he had delivered to him, all the deeds. Lord Thurlovv held that there must be a voluntary leaving of the deeds to entitle the second mortgagee to gain a priority, {h) So where deeds were lodged in the hands of a third per- son, as an escrow, to be delivered over when the vendee should pay the residue of purchase money, and the vendor obtained possession of the deeds, and deposited them to one as a security, it was compared to the case of a first mortgagee leaving the deeds in the mortgagor's possession : but it was held that the vendee might recover the deeds on payment of the residue of the purchase money, because a wrong was committed when the third person parted with the possession of them, {i) So where lands were vested in trustees, first, upon trust to raise a sum of 35,000Z., and next upon trust to in- demnify the lenders of the 35,000/. against a rent charge of 400Z. a-year, and a portion of 5000/., and the trustees raised 5000/., part of the 35,000/., by purchasing an an- . Dickens, above cited, would have received a different determination under the Irish registry act. And it follows also that in Ireland, if there be a first mortgage duly registered, and also subsequent registered incumbrances, the first mort- gagee cannot tack a subsequent advance to his mortgage. So that the case of Bedford v. Backhouse, or Bacchus, which we have already had occasion frequently to notice, would also have received a different determination under the Irish act. And it follows also, that a subsequent mort- gagee, without notice of intervening registered incum- brances, cannot in Ireland take in a first mortgage, so as thereby to acquire a priority of payment as to his second mortgage over the intervening incumbrances : but that all the incumbrancers must be paid according to their priority, (l) It has been determined under the Irish act that, if a person has notice of a prior unregistered deed, he will be bound by it ; for he has that notice which the act in- tended he should have. He cannot say he is defrauded : on the contrary, it is fraudulent in him to take a convey- ance to defeat the charge of another, (m) But though, registered deeds in Ireland take effect ac- cording to their priority, wiiether they be equitable or legal conveyances, and whether one and the same person has both a legal and an equitable incumbrance or not i (A) Bushell V. Bushell, 1 Scho. Bro. P. C. 425. cited and stated and Lef. 102. And see Daly v. also in 1 Ves. 67. 3 Atk. 653 Kelly, 4 Dow. 436. Amb.444. 1 Scho. and Lef. 99. 100. (I) Latouche v. Lord Dunsany, Underwood v. Curtown, 2 Scho. 1 Scho. and Lef. 137. and Lef. 41. Biddalph v. St. John, (m) Lord Forbes v. Deniston, 2 2 Scho. and Lef. 521. 2 A 2 356 OF THE REGISTRATION OF DEEDS. [ChAP. IX. yet, that is under the express words of the 4th section of the Irish act. For the registry of a deed in Ireland is not of itself any notice of that deed, any more than it is in England, or in the Colonies, where it has been uni- formly held, that even enrolments are not considered as notice. The effects of considering a registered deed notice would be truly mischievous ; for though it is true that the registry is considered as notice to a certain extent, as no person thinks of purchasing an estate without searching the registry, and if be searches he has notice ; yet it cannot be considered as notice to all intents. For, as was said by Lord Redesdale, if it be so, it must be taken as notice of every thing that is contained in the memorial : if the memorial contains a recital of another instrument, it is notice of that instrument; if of a fact, it is notice of that fact. Besides, if it be notice, it must be notice, whether the deed be duly rej;,istered or not. It may be unduly re- gistered ; and if it be so, the act does not give it a pre- ference ; and thus this construction would avoid all the provisions in the act for complying with its requisites, (n) There is also a material variation in the English registry acts, which may affect the priority of incumbrances, and which remains still to be noticed. The registry acts for the county of Middlesex, the East and West Ridings of York, and Kingston-upon-Hull, seem to contemplate only the security of subsequent purchasers and mortgagees for valuable consideration. But the act for the North Riding of York is more comprehensive in its effect ; and declares that deeds, wills, judgments, statutes, and recognizances, unless registered as therein mentioned, shall be deemed fraudulent and void, not only as against subsequent pur- chasers or mortgagees, but also as against any plaintiff' or cognizee, for valuable consideration claiming under any (rt) Bushell V. Busheli, 1 Scho. Lord Dunsany, 1 Scho. and Lef. aad Lef. 90. 103. Latouche v. 157. 2 Scho. and Lef. 66. Chap. IX.] of fraud in a prior incumbrancer. 357 subsequent judgment, statute, or recognizance, duly re- gistered. Hence, if there were a mortgage of lands in Middlesex not registered, and then a judgment duly registered, and then another mortgage, which was also duly registered, a difficulty would arise how these incumbrances should be paid ; for under the statute of the 7th of Ann. the second mortgagee would have a priority over the first mortgagee, but none over the judgment creditor. And under the same statute the judgment creditor would be preferred to the second mortgagee : but as to the first mortgage he would be left as at common law, and therefore could only claim subject to it. By the construction put upon the Irish registry act, a subsequent registered judgment will in every case take place of a prior unregistered mortgage, provided the judg- ment creditor had no notice ;(o) which makes the Irish act agree with our statute for the North Riding of York, (p) SECTION III. OF FRAUD IN A PRIOR INCUMBRANCER. The priority of payment of incumbrances, according to their several dates, may also be lost by any fraud or artifice of the first mortgagee, in concealing his own mortgage for the purpose of inducing another person to lend money on the same lands. For if a man by the suppression of truth which he was bound to communicate, or by the sug- gestion of a falsehood, be the cause of prejudice toanother^ who had a right to a full and correct representation of the fact, it is certainly agreeable to equity and the prin- (o) D'Arcy v. Chambers, 1 Scho. Lef. 160, 161. and Lef. App. 467. See also La- (^p) 8 Geo. H. c. 6. touche V. DuDsaay, 1 Scho. and 358 OF FRAUD IN A PRIOR INCUMBRANCER. [ChAP. IX. ciples of good conscience, that his claim should be post- poned to that of the person whose confidence was induced by his misrepresentation, (q) Therefore, where a mortgagee was present when the mortgagor was in treaty for the marriage of his son with the father of A., the son's intended wife, and the lands encumbered were agreed to be settled, upon this marriage, to the husband for life, remainder to the issue, male and female; and it was not opposed by the mortgagee, but he fraudulently concealed his mortgage, and at the same time privately assured the father of the son that he would trust to his personal security ; it was decreed that the son and his wife, and the issue of this marriage, should hold the lands quietly and peaceably against the mortgagee and his heirs. And the mortgagee was directed to assign the mortgage to trustees, one to be named by himself, and the other by the son, to attend the limitations of the settlement. In case the son died without issue of the marriage, or the estates limited by the marriage determined, the parties were at liberty to apply to the Court for further directions; the Lord Chancellor at the same time declaring that he would not determine whether the conduct of the mortgagee was to be considered fraudulent as to the issue which the son might have by any after marriage. The injunction to stay the mortgagee's proceedings was made perpetual ; and he was saddled with the costs, both at law and in equity, and of making the assignment to the trustees, (r) So where H., a mortgagee of the manor of T., had also a statute against the mortgagor, and being a counsellor, and advised with by A., as to a mortgage on the manor of G., he encouraged the loan by A. drew the mortgage, and inserted a covenant that the estate was free from incum- (q) 1 Fonbl. Treat, on Eq. B. 1. (r) Berrisford u.Milward, 2 Atk. c. 3. s. 4. 49.S.C. Barnard. C. C. 101. Chap. IX.] op fraud in a prior incumbrancer. 359 brancesj making no mention of the statute. And, per Curiam, if he who only conceals his incumbrance ought to be postponed, much more ought H. And, accordingly, it was decreed that A. should be satisfied his mortgage out of G. before H. should charge the same with his sta- tute, (s). But if the party to whom the fraud is imputed was not conusant of the treaty in which the fraud was practised, nor in any manner, nor for any fraudulent purpose, con- federating with the party practising the same, the above principle does not apply. {€) Lord Chancellor Cowper, indeed, held that where a first mortgagee is a witness to the second mortgage deed, though no actual proof of his knowing the contents thereof; yet, since the presumption is that he might have known them, it shall postpone him. (m) But that is a doctrine which has not of late been acceeded to ; and it is now held that a witness in practice is not privy to the contents of the deed, (x) But if, besides the fact of attestation as a witness, there be any other circumstance to charge him with notice of the contents of the deed, the first mortgagee will be post- poned. As where a first mortgagee witnessed the deed, and told the money at his master's chambers, {y) So where a father tenant for life mortgaged, and the son tenant in remainder witnessed the deed, the Court gave relief on the foot of fraud, because the son did not give {s) Draper v. Borlace, 2 Vern. 224. Becket v. Cordley, 1 Bro. 370. C. C. 357. Welford v. Beezely, 1 (0 Fonbl. Treat, on Eq. Vol. I. Ves. 6. B. 1. c. 3. s. 4. note (n). {y) Clare v. Tho Earl of Bed- (u) Mocatta V. Murgatroyd, 1 ford, cited 2 Verii. 151. 9 Mod. P. Wms. 393. But see the note to 38. 1 Ves. 96. Raw u. Pote, 2 that case by Mr. Williams. Vern. 239. {x) Rancliffe v. Parkins, 6 Doyi, 360 OF FRAUD IN A PRIOR INCUMBRANCER. [ChAP. IX. the mortgagee notice of his title, (z) And though the son in this last case was an infant, yet that did not avail him. For neither infancy (a) nor coverture (b) will be admitted as any excuse for fraud. In the cases just noticed we may observe that the person having- the first claim was in some manner concerned in the second mortgage : but the bare knowledge of a treaty for a second mortgage is not, as it seems, sufficient to post- pone the first mortgagee. And so Lord Hardwicke is re- ported to have been of opinion ; for it would be very hard for a mortgagee to be at the peril of losing his mortgage money, if he did not give notice of his mortgage to any person whom he knew to treat about the sale, or any set- tlement of the lands in his mortgage ; and it very much differs from the case where the mortgagee himself helps to carry on such a treaty, (c) But if a person, intending to advance money on lands, enquires by himself, or his agent, of another, whether he has any incumbrance or mortgage on the estate, and he denies that he has any, he will thereby lose his priority, (d) But then the enquiring person must state the reason of his enquiry ; that it is in consequence of an intention on his part to advance money on the land. For, otherwise, it may be only the enquiry of idle curiosity, which the first incumbrancer is not bound to answer; (e) or, if he does answer, he may answer falsely. (/) (2) Watts V. Creswell, 9 Vin. Ves. 181. Abr. 415. pi. 24. S. C. cited as (c) Osborn u. Lea, 9 Mod. 96. Watts V. Hasewell, 9 Mod. 38. S. C. (d) Ibbottson v. Rhodes, 2 Vern. cited as Watts v. Treswick, 9 Mod. 554. 96. (e) Pasley v. Freeman, 3 Term (a) 1 Ves. 96. 1 Bro. C.C. 358. Rep. 51. 60. 9 Vin. 415. pi. 24. (/) Ibbottson i>. Rhodes, 2VerD. (6) Hunsden o. Cheney, 2 Vern. 554., and Mr. Fonblanque's note 150. 2d edit. Savage v. Foster, 9 (m). to Treat, on Eq. Vol. I. B« 1. Mod. 35. Evans v. Bicknell, 6 c. 3. s. 4. Chap. IX.] of fraud in a prior incumbrancer. 361 If a person has it in his power to inform himself of his title to an estate, but through negligence, (g-) or ignorance of the law, (A) does not know of his title, and encourages a sale of the estate ; or, upon being applied to by a mort- gagee, affirms that another person has a good right to make a mortgage ; he cannot afterwards set up his own title to the prejudice of the purchaser or mortgagee. But an affirmance that another person has a good right to mortgage, in a conversation with the agent of A. upon a contemplated mortgage to A., is not sufficient to post- pone the person making the false representation to B., a subsequent mortgagee, though B. employed the same per- son as was agent to A. (i) But in such case there ought to have been a second inquiry when the mortgage to B» was contemplated. But if the title deed of an estate be forcibly detained from one, whereby he is hindered from knowing his title^^ and he is induced to make a false representation through the effect of his ignorance, he will not be prejudiced thereby. (k) If an attorney for the vendor of an estate knows of any incumbrances thereon, and treats for a sale, he is bound to disclose them to the purchaser or contractor, as much as a first mortgagee, who encourages a sale or second mort- gage; and, if he does not disclose them, he will be charge- able to the purchaser in default of the vendor. And this is very different from disclosing the general circumstances of his client with the knowledge of which he is in- trusted. (/) And as a mortgagee may lose his whole security by neg- (g) Hobbs V. Norton, 1 Vern. (i) Pearson v. Morgan, 2 Bro. 136. C. C. *388. (h) Hunsdeno. Cheney, 2 Vern. (k) Dyer v. Dyer, 2 Cha. Ca. 160. Pearson v. Morgan, 2 Bro. 108. C. C. *388. (/) Arnot v. Biscoe, 1 Ves. 95. SG^ OF FRAUD IN A PRIOR INCUMBRANCER. [ChAP. IX. lectin^ to inform a purchaser of it ; so he may as to part, if he misrepresents the sum actually due. And therefore, where there was 500/. due upon a mortgage for principal, and 210/. more for interest, and the mortgagee upon a treaty for the marriage of the mortgagor's daughter in- formed the intended husband's father that 500/. only was due upon the mortgage, it was held that such information discharged the lands from being liable to more than what was then pretended to be due ; and accordingly a redemp- tion was decreed upon payment of 500/. with interest from that time, (w) (m) Barrett v. Wells, Cha. Free. 131. I 363 CHAPTER X. OF NOTICE. The whole doctrine of tacking, and of acquiring a priority in payment, depends upon the subsequent incumbrancer having had no notice of the intervening incumbrances, against which he seeks to tack, or over which he seeks to gain a priority ; it having been always held that notice of an incumbrance is sufficient to affect a purchaser or mort- gagee, and to make him take subject to it. (a) Which notice must be at the time of advancing his money ; for, if a subsequent mortgagee has no notice of a second incumbrance till afterwards, or till the taking in of a first, it will not affect him ; it is the very occasion which shews the necessity of his so doing. (6) But it is too confined to say that a mortgagee must have notice at the time of ad- vancing his money ; because it will be equally binding upon him if he has notice in the same transaction. Thus, if the mortgagee has notice before actual payment of all (a) Goddard t>. Complin, 1 Cha. Ves. 130. Toulmlu v. Steere, 3 Ca. 119. Anon. 2 Cha. Ca. 35. Mer. 210. Taylor v. Baker, 5 Bacon v. Ashby, Finch, 366. Bed- Price, 306. ford V. Backhouse, W. Kely. 6. (b) Edmunds v. Povey, 1 Vern. 2 Vern. 575. Shermer t>. Robins, 188. Marsh c. Lee, 2 Ventr. 337. Finch, 406. Shepherd v. Titley, Wortley v, Birkhead, 2 Ves. 571. 2 Atk. 348. Ithell v. Beane, 1 674. Cockes c. Sherman, 2 Freem. Ves. 215. Wynn v. Williams, 3 13. See also ante 305, 306. 1 364 OF NOTICE. [Chap. X. the money, though part of it be secured to be paid, (c) or before the execution of the mortgage conveyance, not- withstanding that the money be paid, (d) it will be suffi- cient to affect him with all the consequences of notice be- fore payment. In the latter instance, because it was his own fault to pay the money before he got the conveyance ; and in the former, because he may go into equity, and have the money secured applied in discharge of the former incumbrance. So every purchaser discovering an incumbrance may retain so much for it as remains in his hands, (e) But this, of course, cannot apply to a case where a mortgagee or purchaser agrees to take, subject to a prior charge. And, I apprehend, that if a mortgagee or purchaser should pay part of his money without notice of an intervening incum- brance, but should have such notice before payment of the residue, as to the part paid, he would have all the rights of an equitable mortgagee without notice ; and might, by taking in a prior mortgage, exclude the intervening in- cumbrancer. In Bentham v. Haincourt, (/) it was held that if a mort- gagee, after notice of a subsequent mortgage, joins with the mortgagor in a sale of the lands to a stranger, the m. Hay ward, Cha. Prec. Rep. 152. Crosby o. Crouch, 11 310. East. 256. Bay ley v. Ballard, 1 (z) Wheelright v. Jackson, 5 Camp. 416. Reed t>. Ay ton, 1 Holt. Taunt. 109. 503. Hartshorn v. Slodden, 2 Bos. (a) Linton v. Bartlett, 3 Wils. and Pul. 582. 380 OF NOTICE. [Chap. X. civil or criminal, (c) a debtor be induced to give a special security to a particular creditor ; his security will be good. But if the conveyance be to trustees, in the first place for satisfying an urgent creditor, and then for securing the claims of some relatives, in order to give them an undue preference, and in contemplation of an act of bankruptcy, the security will be considered good as to the urgent creditor, but void so far as it seeks to prefer the rela- tives, (d) Where a debtor, being pressed by a creditor for some security, gave him a bill of sale of some goods which, it appeared, comprized all his property, and immediately left his home and became bankrupt, it was held a voluntary preference ; for the debtor did it in contemplation of bankruptcy, (indeed, the very deed itself was an act of bankruptcy,) and not in order to redeem himself from any present difficulty by doing the act ; which is the motive for such an act, when really done under the pressure of a threat, (e) If a mortgagee has got in a prior legal estate, it will protect him as against a commission of bankruptcy, or an act of bankruptcy committed by the mortgagor before the making of the mortgage. But if the mortgagee has actual notice of the commission, or of the act of bankruptcy, his legal estate will not protect him. (/) Thus in Collet v. De Gols and Ward, (g-) where Tyssen in 1722 committed an act of bankruptcy, and in 1725 re- leased his equity of redemption to Ward ; in 1726, a com- mission of bankruptcy having issued against Tyssen, De Gols, the assignee under the commission, brought his bill (c) De Tastet v. Carroll, 1 Stark. East. 544. 88. (/) Read v. Ward, 7 Vin. Abr. (d) Morgan c.Horseraan, 3 Taunt. 119. pi. 2. and 123. 2Eq.Ca.Abr. 241. 119. (e) Thornton v. Hargreaves, 7 (g) Cas, temp. Talb. 65. Chap. X.] of notice. 381 to set aside the release in 1725 to Ward. To which Ward pleaded himself a purchaser without notice, and relied upon a legal estate created previous to the act of bank- ruptcy. The plaintitf relied upon the statute of the 21 Jac. I. c. 19., which makes void all conveyances executed after the act of bankruptcy; and vests the estate in the assignee, as from the time of the act of bankruptcy, pro- vided a commission be sued out within five years after- wards. Lord Talbot, in delivering judgment, said, — "Here the legal estate is in Ward; and the question is, whether in a court of equity it shall be taken away with- out Ward's being paid all the money he advanced ? Though the rule be the same here as at law, upon con- struction of statutes ; yet, where an act is to be carried into execution here, there are certain rules to be observed which will bind equally in case of an act of Parliament as of the common law. One of those rules is, that a pur- chaser for a valuable consideration, without notice, having as good title to equity as any other person, this Court will never take any advantage from him ; and, consequently, will not grant a discovery against him of the only equity he has to defend himself by, which, if he should be obliged to discover, the other party would immediately take ad- vantage of. And there, certainly, may be cases where a purchaser for a valuable consideration, without notice of an act of bankruptcy, shall not be obliged in this court to discover any thing (whether incumbrances that he has got in or any other thing,) but all advantage shall be left him to defend himself. Suppose two purchasers without no- tice, and the second by chance gets hold of an old term, he shall defend himself thereby against the first, who still is as much a purchaser for a valuable consideration as himself. I do not, therefore, tliink a purchaser for a valuable consideration, without notice of the bankruptcy, to be relieved against in this court, within 21 Jac. 1. The 382 OF NOTICE. [Chap, X. case of Hitchcock v. Sedgwick (A) is very different from this ; for a commission is a public act of which all are bound to take notice : but an act of bankruptcy may be so secret as to be impossible to be known. And therefore, I think, that Ward having the legal estate in him shall by that be protected for so much as he really and bond Jide paid after Tysscn's bankruptcy ; and therefore directed an issue upon the point of notice, to try whether Ward had notice of Tyssen's bankruptcy, and when. And as to the other part of the estate, which, though not in Ward himself, was in others who were trustees for Ward, that must be considered as one and the same thing." To the like effect Lord Mansfield expresses himself in Foxcroft V. Devonshire, {i) and in Hargrave v. Le Bre- ton, (k) It is true that in ex parte Herbert, (/) before Lord Erskine, his Lordship denies the case of Collet v. De Gols to be law, relying upon some expressions of Lords Redesdale and Eldon against that case. In the case ex parte Herbert it seems that the latter security was taken on the 1st of April, 1805, and the commission of bank- ruptcy issued on the 31st of May following. The estate was sold ; and the mortgagee gave up his deeds to the assignees upon an agreement that his right to tack should be determined by a petition to be presented for that pur- pose. The petition relied upon acts of bankruptcy com- mitted in January, 1805, and charged that the mortgagee had notice of the insolvency of the mortgagor at the time of taking his security. Lord Erskine decreed that the assignees might redeem paying what was due upon the first security only. But then it seems that his Lordship laid some stress upon the circumstance that the mortgagee con- sented to disclose the weakness of his title, and had not (/^) 2Vern. 156. The decree in (?) 2 Burr. 938. Vernon, as here noticed, reversed (k) 4 Burr. 2425. lu D. P. See post. (0 18 Ves. 183. I Chap. X.] of notice. 383 pleaded a purchase for valuable consideration without notice. Lord Erskine's chief reliance^ however, was upon the opinions attributed to Lord Redesdale in Latouch v. Lord Dunsany, (m) and to Lord Eldon in ex parte Knott, (w) In the former, where the case of Collet v. De Gols was incidentally mentioned. Lord Redesdale is said to have observed that it is now the constant practice for the as- signees to compel a redemption on payment only of what was advanced before the bankruptcy. He did not, how- ever, express any opinion on the point, (o) And upon the latter case it seems difficult to discover how Lord Eldon's judgment can be construed to have impugned the authority of Collet v. De Gols. For, first, his Lordship notices that case without making" any particular comment on it ; and, secondly, he expressly declares that, as to what was insisted that the commission has the same effect as a decree, " That is not so. The commission is no judgment for creditors. It is only a conveyance for the security of creditors : and the utmost that can be stated from all these cases, is, that the question is to be agitated between persons having securities, and the assignees, as persons, having securities, or as purchasers for valuable consideration." (p) Besides, as has been observed by Mr. Sugden, (q) it escaped observation in the case ex parte Herbert, that it had been decided by the House of Lords that if a mort- gagee has the legal estate, he may tack subsequent ad- vances, though a commission of bankruptcy had actually issued against the mortgagor. And if a commission is not of itself notice sufficient to prevent tacking, much less shall an act of bankruptcy be so. For the case of Hitch- Cm) 1 Scho. and Lef. 137. (p) 11 Ves. 619. (n) 11 Ves. 609. (q) Treat, on Vend, and Pur. (o) 1 Scho. and Lef. 152, 153. 622, 623, 4th edit. 384 OF NOTICE. [Chap. X. cock V. Sedgwick, which Lord Talbot distinguishes from the case of Collet v. De Gols, coming on before the Lords, the Lords reversed the decree against Sedgwick, and ordered him to be paid the money advanced subsequent to the commission, (r) Besides, even in a court of law. Lord Ellenborough observed that tlie gazetting of a commission of bankruptcy '' is a circumstance from whence a jury may presume notice, but it is not in itself actual notice," — which he could never have said if the commission, without the gazetting, were to be considered as notice, (s) And if a prior legal estate shall protect a purchaser or mortgagee, as against the assignees in bankruptcy, claim- ing under the statute of the 21 Jac. \. c. 19. ; by a parity of reason it would protect as against the assignees claiming under the 46 Geo. 3. c. 135. (t) Lis jtendens is of itself sufficient notice to a purchaser, or to a mortgagee who becomes such for the first time after the suit commenced ; for, as it is a transaction in a sovereign court of justice, it is supposed all people are attentive to what passes there ; and it is to prevent a greater mischief, that would arise by people purchasing a right under litigation, and then in contest. (?/) But, in order to make lis pendens of itself a binding notice, it is necessary, 1st. That the suit should be real, and not col- lusive ; iy) 2dly, That it should be in full prosecution ; {w) and, 3dly, That the question should relate to the estate, (r) 2 Vern. 156. reversed in D.P. Ward, 2 Atk. 174. Bishop of Win- See Journals of the House of Lords, Chester r. Paine, llVes. 194. Vol. 14. p. 601. Sugd. on Vend. (t») Culpepper v. Aston, 2 Cha. and Pur. 619. 4th edit. Ca. 116. (s) 7 East. 161. (w) Preston v. Tubbin, 1 Vern. (0 Sugd. on Vend, and Pur. 556, 286.: but see Bishop of Winchester 4th edit. 582, 5th edit. v. Paine, 11 Ves. 194. Stylet?. (u) Worsley v. Earl of Scarbo- Martin, 1 Cha. Ca. 150. and Sugd. rough, 3 Atk. 392. Sorrel u. Car- on Vend, and Pur. 613, 614, 4th penter, 2 P. Wms. 482. Garth v. edit. Chap, X.] op notice. 385 and not merely to money secured upon it. (a) Rut a bilj to perpetuate the testimony of witnesses, and to establish a Will is a sufficient Us pendens, {y) And if a person take d mortgage of the equity of redemption during a bill of foreclosure brought by a prior mortgagee, he will be bound by the decree, and the mortgagor's default in re- deeming, though he were made no party to the suit. («) Lis pendens, however, will not prevent incumbrancers, \?vho were such before the suit commenced, from taking in prior incumbrances, so as to enable themselves to tack their own mortgages, and thereby to exclude the intermediate incumbrancers; for it is the very pendency of the suit that frequently conveys notice to a subsequent mortgagee of the intermediate incumbrances, arid shews the necessity of his getting in the prior legal incumbrance. (6) But a prior incumbrancer cannot, during lis pendens^ take in a puny incumbrance, so as to exclude intermediate incumbrancers; for the rule of the Court, as to prior incumbrancers taking in a subsequent one, so as to tack it to the prior, is where he is a bond fide purchaser of the puny incumbrance with- out notice of the intermediate ones, (c) A decree in Chancery ditfers from a Us 'pendens ; for it is not implied notice to a purchaser after tlie cause ended. But a decree to account is not such a one as puts a conclu- sion to the matters in question ; and is, therefore, such a suit as does affect people with notice 6f vvh'at is doing, {d) (x) Worsley u. Earl of Scarbo- v. Duchess of Marlborough, 2 P. rough, 3 Atk. 392. Wms. 491. Hawkins v. Taylor, (^y) Garth v. Ward, 2 Atk. 174. 2 Verii. 29. Turner y. Richmond, S. C. Nomine Garth y. Crawford, 2 Vern. 81. Belchier r. Renforth, Barnard. C. R. 450. 6 Bro. P C. 28. fol.ed. llVes.619. (a) Bishop of Winchester v. (c) Morrett o . Paske, 2 Atk. 52. Paine, 11 Ves. 194. Long v. Cloptou, 1 Vera. 464. (b) Robinson v. Davison, 1 Bro. Ante 288, 289. C. C. 63. Marsh v. Lee, 2 Vent. ((/) Worsley v. Earl of Scarbo. 337. S. C. 1 Cha. Ca. 162. Brace rough, 3 Atk. 392. go 386 OF NOTICE. [Chap. X. And if a person have express notice of a decree, he will be bound by it, though he were no party to the suit, (e) But as to incumbrancers and mortgaoees a decree in Chancery has the greatest effect, both in preventing them from changing the order of payment from that in which they stood at the time of the decree, and in preventing sub- sequent incumbrancers from taking in prior incumbrances so as to enable themselves to tack their puny incumbrances to the prejudice of the intermediate ones. Thus, after a decree to account, and to settle the priorities of the incum- brances, a puisne incumbrancer cannot take in the first in- cumbrance so as to exclude the second, for the rights are to be considered as they stood at the time of the decree; and nothing would open a greater door for collusion and contrivance between the parties to exclude each other than such a liberty would. (/) So, after a decree to redeem, a mortgagee cannot take in incumbrances, and tack them to his mortgage, (g") And if an order be made upon motion, under the 7 Geo. 2. c. 20., a mortgagee cannot afterwards on motion have an order to discharge that decree, and in- sist upon tacking a bond debt to his mortgage, {h) Though a creditor be no party to the suit he cannot, after a decree to account and settle priorities, assign over his incum- brance to an incumbrancer, so as to give the assignee a right to attack the two securities together, (i) And where there has been a decree for creditors to come in, a mort- gagee cannot tack a simple contract debt as against the ex- ecutors of the mortgagor seeking a redemption, (j ) (e) Harvey 0. Montague, 1 Vera. Rep. 171. 57. 122. S. C. 2 Cha. Ca. 180. (/i) Cadle v. FowlCj 1 Bro. C. C. (/) Wortley u. Birkhead, 2Ves. 515. 571. S. C. 3 Atk. 809. Bristol v. (0 2 Ves. 575. Huiigerford, 2 Vern. 525. 11 Ves. (7) Vanderzee v. Willis, 3 Bro. 619. C. C.21. is) Welden v. Rallison, 1 Cha. 1 Chap. XJ of notice. 387 The following important considerationSj as connected with the point of notice, here present themselves: — 1st. In what cases an assignee, claiming under the ori- ginal purchaser or mortgagee, or through various assign- ments from them, shall be allowed the benefit of want of notice in the original purchaser or mortgagee, in any of the intermediate assignees, or in himself. 2nd. How no- tice should be denied, or how a mortgage should be plead- ed. And, 3rd. As to a- mortgagee denying the discovery of his title deeds. 1st. It is held that if one purchases or takes a mortgage of an estate, without notice of an incumbrance, a subse- quent purchaser or assignee from him will be safe, thougli at the time of his purchase or assignment he may have no- tice, (k) And the reason is to prevent a stagnation of pro- perty; for, if the rule were otherwise, an innocent pur- chaser or mortgagee might be prevented from selling. In practice, however, it is considered that since the want of notice in the original purchaser or mortgagee is a negative, and will not admit of affirmative proof, a title so circum- stanced cannot be recommended. If a mortgage be assigned over to A., and then again from A. to B., B., the last assignee, may take advantage of the want of notice in A. Thus if C. purchases an estate with notice of an incumbrance, or that it is redeemable, (/) and then sells it to A , who has no notice, and A. after- wards sells it to B., who has notice, B. will be safe under the want of notice to A. (m) (k) Lowther v. Carlton, 2 Atk. Ca. Abr. 331. pi, 6. 242. S. C. Barn. Cha. Rep. 358. (/) As to this see Hansard v. S.C.Cas.Temp.Talb. 187. Brand- Hardy, 18 Ves. 462, ante p. 372. lyn V. Ord, 1 Atk. 571. 4 Bro. (m) Harrison v. Forth, Cha. C.C. 13G. Amb. 313. Harrison Prec. 51. S. C. I Eq. Ca. Abr. 331. V. Foith, Cha. Prec. 51. S.C. 1 Eq. pi. 6. 2 c2 S88 OF NOTICE. [Chap. X. So, where there have been a variety of assig;nments of a mortgage, the last assignee may take advantage of the want of notice in any of the intermediate assignees. Therefore, where a bill was filed to discover whether the defendant, who was assignee of a mortgage, had not notice that the ori"*inal mortgagor was only tenant for life, stating that the title deed, by which this appeared, was in the defend- ant's hands, the defendant pleaded that he was assignee of the mortgage for valuable consideration, and through many assignments from persons who had no notice. It was argued that this plea was not good, for it should have been stated whether the defendant personally had notice. But his honour allowed the plea, holding that the plaintiff could not call upon the defendant to shew whether he had or had not notice; for whether he had or had not was im- material, if those through whom he claimed had not; he having a right to avail himself of their being purchasers without notice, (n) Hence it follows that where one purchases, or takes a mortgage, or an assignment of a mortgage, bondjide and without notice of an incumbrance, from a person who had notice, such purchaser, mortgagee, or assignee, will not be atfected by the circumstance that the person, under whom he claims, had notice, (o) But in all these cases, in order to give a pei^on the full benefit of want of notice, either in himself, a previous as- signee, or the original purchaser or mortgagee, it is ne- cessary that he should have the legal estate : for, other- wise, equity will not interferein his behalf as against other bond fide purchasers or incumbrancers, (p) To the first of the above rules there is one exception, which is, in the case of a purchase of lands, given to some (n) Sweet v. Southcote, 2 Bro. 384. Mertins v. JolHfFe, Ambl. C. C. 66. S. C. 2 Dick. 671. 313. (o) Ferrars r. Cherry, 2 Vern. {p) Amb. 313. Chap. X.] of pleading a mortgage, &c. 589 of the charitable uses specified in the 43 Eliz. c. 4. wherein it is held that if a purchaser of lands, given to charitable uses, though for consideration of money, hath legal notice of the use, and afterwards selleth the land to another for money, who hath no notice of the use : this second purchaser shall hold the land chargeable witli the charitable use. But if the first purchaser had no notice of the use, then is tiie land discharged of the cha- ritable use. And if be afterwards sell it to another for money that hath notice of the use, yet he shall not hold it subject to the charitable use. (q) OF pleading a mortgage, and denying notice. 2nd, Want of notice is, as it were, the equitable reliance of a bond Jide purchaser or mortgagee for valuable consi- deration against the claim of a person who has as much equity, whereby he throws himself on the justice of the Court, requiring to know whether he, the defendant, who has as much equity as the person seeking relief, is obliged, either by confession or discovery, to injure himself or as- sist the plaintiff. In which case, if it appears that the de- fendant is a bond fide purchaser or mortgagee for valuable consideration, a court of equity will assist the defendant by refusing to interfere on the behalf of the plaintiff. Wherefore a plea of a purchase or mortgage, without no- tice, is called a plea in bar. Such a plea must aver the purchase and consideration, and deny notice. And first, as to the purchase, it must aver that the per- son who conveyed or mortgaged to the defendant was seized in fee, or pretended to be seized at the time that he executed the purchase or mortgage deed, (r) And if the conveyance pleaded purported to be an immediate (7) Duke 173. Page 610, 611. Atk. 630. 3 P. Wms. 281. 17 of the edition ill 1805. Ves. 290. Strode u. Blatkburne, (r) Story y. Lord Windsor, 2 3 Ves. 222. 390 OF PLEADING A MORTGAGE, [ChAP. X. transfer of the properly, the plea must aver that the vendor or mortgag'or was in possession at the time he ex- ecuted the conveyance, (s) But it was never held necessary to aver in the plea of a purchase that the purchaser was put in possession. (0 But this is a doubtful point ; for, as was said by Lord Eidon, what is necessary to the plea of purchase for valuable consideration, as in the case of every other plea, must be averred ; and it would go this length, that it is not necessary to aver that the vendor was not in possession. But this, as we have seen, is not so. But with respect to this particular species of purchaser, a mort- gagee, few cases can occur wherein it is necessary to aver the taking of possession ; for it is to be remembered that the possession does not, in the nature of the thing, ordi- narily accompany the transaction; and the fact that the mortgagor remained in the possession, in one sense docs not amount to an assertion, that the mortgagee was out of possession, (u) But where a fine and non-claim are set up as a bar to the plaintiff's right, it is not sufficient to aver that at the time the fine was levied the seller or morto-affor of the estate being seized, or pretending to be seized, conveyed, &c. ; but it must be averred that he was ac- tually seized. In which, however, it is not necessary to say that he was seized in fee; for if a seisin of a freehold only, at the time of the fine, be averred, it will 60. (v) The plea must likewise aver a conveyance, and not articles only; for a purchaser under articles only, if he is injured,, must sue at law upon the covenants in the articles, (x) Secondly, In pleading a purchase or mortgage in bar, it is necessary to aver a valuable consideration, and that it (s) Trevanian r. Mosse, 1 Vern. jun. 450. Dobson v. Leadbeater, 216. .3 Ves. 226. 9 Ves. 32. 1 3 Ves. 230. Butler v.. Every> (0 9 Ves. 32. 3 Ves. 225. 13 Ves. 234. note. (u) Wallwyn v. Lee, 9 Ves. 32. (x) Brandlyn v. Old, 1 Atk. (v) Story V. Lord Windsor, 2 571. Atk. 630. Page v. Lever, 2 Ves, Chap. X.] and denying notice. 391 was paid. An averment tliat the consideration is secured to be paid is not sufficient^ and will be a reason to over-rule the plea ; for_, as the defendant has notice of the plaintiff's title, it may never be paid, {y) In a bill to set aside a purchase on the ground of inadequacy, if the defendant plead to the relief, and not to the discovery, and plead the purchase deed, the several sums which were the consideration^ and among the rest a sum of odd money really paid, it is not a good answer : but it should aver the payment of the con- sideration, independently of the recital of the purchase deed ; and moreover it should be averred that the whole of the money mentioned as the consideration in the deed was really and bond fide paid, (2) Some doubt seems to pre- vail whether a purchaser for valuable consideration, plead- ing his purchase, is obliged to plead the particular con- sideration, {a) But it seems that a mortgagee should plead the particular consideration, as the plaintiff may redeem him. But a mortgagee is not obliged to prove the actual lending and payment of the money, whether it be in a suit with the mortgngor, or in the case of a subsequent mort- gagee, who claims a right to tack, or a priority in payment over a prior mortgagee : but the producing the deed, or an acquittance for it, will be a sufficient evidence of the debt. (6) But where there are manifest signs of fraud in a mortgagee, he will be put to the proof of actual pay- {y) Hardingham v. Nicholls, 3 (*) Holt v. Mill, 2 Vern. 27Q. Atk. 30 L Piddock v. Brown, 3 P, Wms. 288-. (2) Maitland v. Wilson, 3 Atk. See farther as to proof of payment 8'14. of consideration money, Goddard («) Tiiat a purchaser must plead y. Complin, 1 Cha, Ca. 119. New- the particular consideration, see castle v. Cieyton, Finch, Rep. 24S. Millard's case, 2 Freem^. 43, contra. 16 Vin. 280. (O). That receipt Dayu. Arundell,Hardr. 510. More without payment no avail, see Fur- V. Mayhow, 1 Cha. Ca. 34. See saker v. Robinson, Cha. Prec. 475. also Wagstaft' v. Read, 2 Cha. Ca. 5 Vin. 408. pi. 19. Coppin t?. Ccp. 156. pin, 2 P. Wms. 294, 295. S92 OF PLEADING A MORTGAGE, [ChAP. X. ment ; and if he thereby loses part of his money, for want of being able to make sufficient proof, it is but a just punishment of him for the fraud, (c) Thirdly, The purchaser or niortgagee should deny no- tice of the plaintiff's title or claim, though not charged by the bill, {(l) And he should deny notice at the time of the execution of the conveyance, or payment of the money. (e) A denial, at one of these times only, is not sufficient; (/) for if a purchaser or mortgagee has notice either before the conveyance made, or payment of the moqey, it is suf- ficient to charge him with, notice, (g) But it is not ne- cessary that he should deny notice at or before the execu- tion of the conveyance or payment of the money ; because notice before is notice at tl^e time. (A) A denial at the time of the purchase will not do : but it must be a denial at the time of the execution of the conveyance or payment of the money, (i) A defendant cannot plead that he had no notice at or before the executioi;i of the conveyance, or the consideration money secured to be paid ; for, if the money is only secured to be paid, it may never be paid, {k) The notice thus d/enied must be notice of the existence of the plaintiff's title, and not merely of a person who could claim under that title ; as if a purchaser have notice of an estate tail, it is not sufficient for him to deny notice of the existence of any issue inheritable under that in- (c) Piddock V, Brown, 3 P. 5 Ves. 432. 6 last lines. Gilb. For. Wms. 288. Rom. 60. ((/) Aston V. Curzon, 3 P. Wms. (/i) Jones o. Thomas, 3 P. Wms. 244. note F. 2 P. Wms. 495. Bod. 243. Fitzgerald v. Burke, 2 Atk. min V. Vanderbendy, 1 Vern, 179. 397. Anon. 2 Ventr. 361. (z) More c. Mayhov^,! Cha. Ca. (e) Fitzgerald v. Burke, 2 Atk. 34. Attorney General o. Gower, 397. 2 Eq. Ca. Abr. 685. pi. 11. (/) Story r. Lord Windsor, 2 (A.) Hardingham v. Nicholls, 3 AtW 630. Atk. 304. ig) Wigg V. Wigg, 3 Atk. 384. Chap. X.] AND DENYING NOTICE. 393 tail. (/) The denial of notice must be positive, and not evasive, (m) But where some claimants under a mort- gagee, he being dead, denied that to their knowledge or belief the mortgagee had notice, the plea was allowed, (w) Indeed, in pleading the want of notice in an agent or third person, a denial as to belief seems all that can be had. (o) The denial must be general, and not confined : thus if the mortgagee by answer denies positive notice to himself, it is a negative pregnant that there was notice to the agent. (/>) If particular facts or circumstances of notice are charged, they must be denied as particularly, and specially, as charged by the bill, (q) And if the plaintiff charges notice in general, as well as special facts and circumstances, there must be a general as well as particular denial, (r) The special and particular denial of notice or fraud mus.t be by way of answer, that the plaintiff may be at liberty to ex- cept to its sufficiency, (s) But notice and fraud must also be denied generally, by way of averment in the plea; otherwise the fact of notice, or of fraud, will not be in issue, (t) So that there must be a denial of notice and fraud, both in the plea and answer, (u) (0 Kelsall V. Eennet, 1 Atk. 522. (»i) Cason V. Round, Cha. Prec. 226. 1 Ves. 97. (n) Higgon V. Syddal, 1 Cha. Ca. 149. See also Jolland v. Stain- bridge, 3 Ve?. 478. 1 Ves. 97. (o) Attorney-General u.Gower, 2 Eq. Ca. Abr. 685. pK 11. Jerrard V. Sanders, 2 Ves. jun. 187. (p) Le Neve v. Le Neve, 3 Atk. 649. 1, Ves. 66. Amb. 440. (q) Radford v. Wilson, 3 Atk. 815. Senhouseu. Earl, 2 Ves. 450. Jerrard u. Sanders, 2 Ves. j^n, 187. 454. S. C. 4 Bro. C. C. 322. Meder v. Birt, Gilb. 185. 2 Bro. C. C. 146. (r) Senhouse v. Earl, 2 Ves. 450. (s) Price v. Price, 1 Vern. 185. Anon, 2 Cha. Ca. 161- Mitf. Plead. 216. 2d edit. 6 Ves. 596. Gilb. For. Rom. 58. (0 Mitf. Plead. 216. 2d edit. Davie v. Chester, stated in thp note there. 6 Ves. 796. 2 P. Wms, 495. (u) Gilb. For. Rom. 58. 3 P. Wms. 244. note F. corjtra : but see the references ip the two last notes, Iloare v. Parker, 1 Bro. C. C. 578< 394 OF PLEADING A MORTGAGE^ [CilAP. X. Where the defendant denies notice, and the plaintiff proves it by one witness only, if the denial is as positive as the assertion, and there are no circamstances in the case attaching a superior degree of credit to the witness than to the defendant, as there is but oath against oath, a court of equity will not allow the testimony of that single witness to establish the fact, but will dismiss the bill, (x) But if the denial is not positive, but goes to belief only ;(3/) or if the denial be only as to personal notice ; {z) or if there are circumstances in the case which g-o to confirm and strengthen what a single witness swears ; a court of equity will decree against the defendant. («) The tes- timony of the witness, however, must be positive. If it be only as to hearsay, or information from some one else, the Court will not act upon it : {h) but if neither the denial of the defendant be positive, nor the evidence on the part of the plaintiff clear enough to make a decree, the Court will direct an issue at law to try the fact of notice; (c) unless the property will not bear it, in which case, it seems, it would act agreeably to the wish of the parties, in directing an issue or not. (rf) A mortgagee, who has put in his answer, and neglected to deny notice, cannot after a reference to the Master, and his report made, and a decree thereupon, insist upon deny- ing notice, and offer to be examined on interrogatories in order to enable himself to tack a puisne incumbrance : but (x) Evans v. Bickiiell, 6 Ves. 649. S. C. 1 Ves. 66. 184, 183. Le Neve v. Le Neve, (a) Walton ©. Hobbs, 2Atk. 19. 3Atk. 649. Arnot v. Biscoe, 1 Janson t). Rany, 2 Atk. 110. Only Ves. ^1. Kingdome v, Boakes, v. Walker, 3 Atk. 407. 1 Ves. 125. Cha. Free. 19. Pemberu. Mathers, 2 Bro. C.C. 52. iy) Jerrard v. Sanders, 2 Ves. {V) Hine v. Dodd, 2 Atk. 275. jun. 187. S. C. 4 Bro. C. C. 322. 2 Ball and Beat. 301. 1 Ves. 97. Cason v. Round, Cha. (c) Arnot v. Biscoe, 1 Ves. ^b. Free. 226. (rf) JoUand y. Stainbridge, 3 (2) Le Neve u. Le Neve, 3 Atk. Ves. 478. Chap. X.] and denying notice. 395 the denial of notice must appear on the face of the plead- ings, (e) If a defendant pleads his purchase or mortgage for valuable consideration, but omits in the plea to deny notice, and the plaintiff replies to it instead of setting it down to be argued, all that the defendant has to do is to prove his plea, and the bill as against him must be dis- missed vi^ith costs. (/) So where a defendant in his an- swer states himself a purchaser or mortgagee for valuable consideration, and the plaintiff instead of excepting to it, replies to it ; if the defendant proves the case relied on in his answer, the bill as against him must, as it seems, be dismissed, unless the plaintiff can prove circumstances of fraud, (g) But it is not absolutely necessary that a person should plead himself a mortgagee or purchaser for valuable con- sideration without notice, though it is prudent so to do. If a man buys an estate, and a bill is filed, and a title shewn to relief, he may plead that he is a purchaser for valuable consideration without notice ; and he must sup- port his plea by denying all the circumstances from which notice may be implied : and if, after all that can be said to charge him with notice, he is hardy enough to swear that he had no notice, and to deny all the circumstances; and he does plead, and refuses to try the question in any other way; then it must rest very much with his own conscience. But if he forbears to plead, and if it turns out in the pro- gress of the suit that he was a purchaser for valuable consideration without notice, it is too much to deprive him of the effect of that, merely because he docs not stop the suit at first, if it be so in fact, (h) (e) Brace v. Duchess of Marl- (g) Eyre r. Dolphin, 2 Ball and borough, 2 P. Wms. 495. 6th Re- Beat, 290. 303. solution. (h) Per Lord Eldon in Runcliffo (/) Harris v. Ingledew, 3 P. v. Parkyns, 6 Dow. 230. Wms. 94. 3 Ball and Beat. 302. 396 OF PLEADING A MORTGAGE, [ChAP. X. 3d, A mortgagee denying notice is not obliged to discover his title deeds ; which is an invariable rule in equity, and depends upon the denial of notice ; (i) insomuch that the Court has refused to give any assistance against a pur- chaser, (and a mortgagee is such) either to an heir, or to a widow, or to the fatherless, or to creditors, or even to one purchaser against another ; and precedents of this na- ture are very numerous, {k) Nay, though a mortgagee may have been guilty of fraud in obtaining the legal estate, (/) or the possession of a deed ; (m) yet will not a court of equity take the advantage of it from him, or com- pel him to discover it. And where an attorney, having a deed of settlement in his possession for a particular purpose, had delivered it over to a mortgagee, after having said in his answer that he was ready to produce it, as the Court should direct; the Court held that he was not guilty of a breach of trust, as he was equally a trustee for the mort- gagee as for the mortgagor, (who was only tenant in spe- cial tail, and no fine levied, or recovery suffered,) and therefore dismissed a bill for discovery brought by the heir in tail, (n) As to a jointress, indeed, where the plaintiff claims as (i) Senhouse v. Earl, 2 Ves. Fagg, S. C. as also another case, 450. Millard's case, 2 Freem. 43. cited 2Freem. 123, 124. In some Pelljit V. Ballard, 2 Cha. Ca. 73. of the reports of this case it is Ibid. 135. Anon. 2Cha. Ca. 136. stated that the defendant had 5^/e« Abney v. Williams, 1 Vern. 27. the deed. Brampton v. Barker, (k) Bassetti;. Nosworthy, Finch, cited 2 Vern. 159. Siddon v. Char- 102. 2 Ves.jun. 457. nells, Bunb. 298. 9 Ves. 26.— (0 Culpepper's case, cited 2 Hacket v. Wakefield, Hard. 172. Freem. 124. Bromley o. Hammond, contra: but see Finch. 102. 2 Ves. 2 Cha. Ca. 23. Harcourt and jun. 457. And Higgpn v. Syddal, Knowel, cited 2 Vern. 159. 1 Cha. Ca. 149. S. C. 2 P. Wms. (ot) Sir John Eagg's case, cited 493. 1 Vern. 52. 2 Vern. 159. S. C. L («) Siddon v. Charnells, Bunb. Cha. Ca. 68. nomine Sherly v, 298. ClIAl». X.] AND DENYING NOTICE. 397 heir at law to the person who made the jointure, and there is no appearance of any settlement, the Court will, upon the plaintiff's offering to confirm the jointure, oblige! a production of the deed, (o) But as to a mortgagee, the case is entirely otherwise; for, if the plaintiff brings his bill to redeem ever so strongly, yet he is not entitled to see the mortgagee's title deeds, because a third person may find out a flaw in them, (p) And the rule appears to be the same on motion where a sale is to be to raise the' mortgage money, (q) So, upon decree for a fore- closure nisi, where the defendaot moved that the plaintiff might lay the deeds before counsel in order to have the mortgage assigned to a person who was willing to advance the money, the Lord Chancellor would not oblige the mortgagee to produce the title deeds ; but only ordered that he should give the defendant a copy of the mortgage deed ai the defendant's charge : (r) though he thought the refusal to produce was a good reason to enhrge the time to redeem, if the defendant should apply for it. (s) But the rule is imperative that a mortgagee shall never be compelled to give up his security till he has his money in his pocket. (<) A distinction is taken by Lord Chief Baron Gilbert be- tween a mortgage or sale by tenant for life, where the title deeds are delivered over, and a mortgag-e or sale by a te- nant in (ail, with a delivery of the deeds ; in the first in- stance, that a mortgagee cannot plead his^ mortgage, and insist that he is not obliged to deliver over the titfe deeds, or discover the title; but that in the latter he can. The (o) 2 Ves. 450. (r) Atioa^ Mtosh.346. (p) 2 Ves. 450. (s) Mosl. 246. And see 2 Atk. (q) 2 Ves. 450. Per Ilardwicke, 332. Chancellor, Anon. Mosl. 245. con- (0 Postlethuaite v. Biythe, 3 tra, said by counsel argu. if the Mad. 242. 244. See Fenwicke v, mortgagee consents to the sale. Reed, 1 Met. 114. and ante 209. 398 OF PLEADING A MORTGAGE, [ChAP. X. reason for which difference, as given by Gilbert^ is, that the tenant in tail, being; master of the estate, is likewise owner of the deed; and therefore^ having pledged the deed as well as the estate for money, the issue in tail cannot have the aid of a court of equity to have such deed, un- less he pay the money : but in the case of the tenant for life, there he had only a particular property in the deed, and was not master of the estate so as to bar it; and there- fore the court of equity will make him deliver the deed to the person who was the prior purchaser upon valuable consideration, that is, the remainderman in tail, (u) And upon this distinction Lord Rosslyn seems to have pro- ceeded in the case of Strode v. Blackburne : (oc) but Gil- bert's distinction, as well as the case of Strode v. Black- burne, have been denied and over-ruled by a case before Lord Eldon, in which, a tenant in tail in possession under a marriage settlement brought a bill for discovery and delivery of title deeds ; to which the defendant pleaded a mortg-age by the tenant for life, alleging himself to be seized in fee, and in possession of the premises and deeds, as apparent owner. And his Lordship after consideration, and the plea having stood a considerable time for judg- ment, allowed it. (i/) In a bill to set aside a purchase charging the defendant with notice of a trust, and that such a lease in his posses- sion mentions it; if the defendant swears himself a pur- chaser without notice of any trust, and that the said lease mentions no such trust; to which the plaintiff replies, and the defendant proves his purchase, and the plaintiff proves no notice upon him ; the plaintiff cannot insist that the defendant must produce his lease on the ground that (w) Gilb. For. Rom. 60, 61. Brampton v. Barker, cited 2 Vern. (x) 3 Ves. 222. 159. (^) Wallwyn v. Lee, 9 Ves. 24. Chap. X.] and denying notice. 399 his answer being replied to, he must prove it, which he cannot do without producing- the deed : but it will be con- sidered only a side-wind to make the purchaser expose his title, (s) But if the plaintiff falsifies the answer, (a) or if the bill charges facts of notice, which the defendant does not deny, (6) a court of equity would compel a discovery. (z) Hall o. Atkinson, 1 Eq. Ca. Abr. 334. Abr. 333, 334. S. C. 2 Vcrn.463. (b) Jerard r. Sanders, 2 Ves.jun. (a) Hall y, Atkinson, 1 Eq. Ca. 187. I _ 400 CHAPTER XI OF THE LIABILITY OF A MORTGAGEE TO SEE TO THE APPLICA- TION OF THE MORTGAGE MONEY— OF THE TENDER OF MORT- GAGE MONEY— AND OF THE PROOF OF PAYMENT OF MORT- GAGE MONEY. SECTION I. OF THE LIABILITY OF A MORTGAGEE TO SEE TO THE APPLICATION OF THE MORTGAGE MONEY. Where an estate is vested in trustees upon trust by mort- gage or sale (which^ if for a particular purpose, implies a power to mortgage (a) ) to raise money to answer a par- ticular purpose, and a mortgagee has notice of the trust respecting the mortgage money, he must see to the appli- cation of it ; for, if the trustees fail to lay out the money according to their trust, the mortgage will be an invalid security as to so much of the money as has been misap- plied. (6) But this liability of the mortgagee to see to the applica- tion of his money is taken away in two instances. First, where the deed or will authorizing the mortgage or sale has given the trustees a power to give effectual dis- (a) Mills V. Banks, 3 P. Wms. (b) Cotterel r. Hampson, 2 9.; ante 45. Vern. 5. Chap. XL] of seeing to the application, &c. 401 charges^ in which case, whatever be the trust, if a mort- gagee pays his money, and takes a receipt according to the directions of the deed or will, he will be discharged from seeing to the application of his money. And, secondly, where the trust is unlimited and unde- fined, as a trust to pay debts generally, in which case a purchaser or mortgagee would be indemnified, and not obliged to see to the application of his money, (c) So if the trust be in the first instance to pay debts, and then legacies, the trust for payment of debts intercepts the trust for pay- ment of legacieSj and discharges a purchaser or mortgagee from seeing to the payment of the legacies; for they can- not be paid till after the debts, (f/) So if the trust be of such a nature as to require time and discretion, as to pay such creditors as may come in within eighteen months, (e) to raise money for the advancement of a child, &c.; in which instances, as it is generally thought, a mortgagee or purchaser is not obliged to look to the application of his money. So if the trustees are directed to place out the money in the funds, or other security upon trusts, it has been always considered sufficient in practice if the purchaser or mort- gagee see the money laid out accordingly, and procure the trustees to enter into a declaration of trust; for it is thought impossible that the raiser of the trust should expect from a purchaser any further degree of circumspection than during the time the purchase transaction is carrying (c) Culpepper v. Aston, 2 Cha. C, C. 96. Jebb v. Abbett and Ben- Ca. 115. 221. Anon. Mos. 96. yon u. Collins, 1 l3io. C. C. l.S(j. Smith u. Guyon, 1 Bro. C. C. 186. in note; and also in Butler's note Tenant v. Jackson and Cotton o. Co. Lit. 290. n. 1, s. 12. Rogers u. Everard, in note there. Langley v. Skillicorne, Amb. 188. Lord Oxford, Amb. 17. And cases (e) Balfour v. Welland, 16 Ves. in the subsequent notes. 151. (d) Williamson v. Curtis, 3 Bro. 2 D 402 OF SEEING TO THE [ChAP. XI. on.(/) According to the opinions of Mr. Booth and Mr. AVilbraham, indeed, given in 1758, it appears that if the purchaser saw that the money was properly invested, that alone would be sufficient to discharge him from any further responsibility : (g) but the modern practice is to require a declaration of trust also. (A) The reason for which latter precaution, it seems, is only to furnish the purchaser with some evidence that the money was properly invested ; for in favour of the cestuis que trust the money would be equally liable, under the original instrument, though there were no declaration by the trustees ; and, therefore, it fol- lows that any other evidence of the due investment would be sufficient to discharge a purchaser or mortgagee; but that, where a declaration of trust is given, the purchaser should take care to be provided with the means of having it forthcoming whenever he may have occasion to shew that he had performed his part of the trust. But if the trust be for payment of particular debts spe- cified either in the instrument creating the trust, or in a schedule, (i) or by a master's report ascertaining them in a schedule, where an estate is sold under an order of Court,(A:) or by a private act of parliament, (/) which is more like a deed, such specification or schedule obliges a purchaser or mortgagee to see to the application of the money. In which instances a purchaser or mortgagee, instead of pay- ing the money to the trustees, should see to the application of it himself, and take assignments from the creditors; or he may apply to the Court that the money be placed in (/) 2Cas. and Op. 114. Sugd. 96. Spalding o. Shalmer, 1 Vern. on Vend, and Pur. 416. 4th ed. 301. Lloyd v. Baldwin, 1 Ves. (g) 2Cas. andOp. 114. 173. (h) Sugd.onVend.andPar.416. (k) Lloyd v. Baldwin, 1 Ves. 4th ed. 173. (0 2 Cha. Ca. 223. Barnard. (0 Cotterel v. Hampson, 2 81. 1 Vern. 260. Anon. Mosl. Vern. 3. 1 CHAP. XI.] APPLICATION OF MORTGAGE MONEY. 403 the bank, and not taken out without notice to him. (???) So, though a general charge does not make a purchaser be- fore the suit sec to the appHcation of the money; yet, if any of the creditors commence a suit for sale and payment, a purchaser, after the suit commenced, would be bound to it.(w) But although the trust be for payment of particular debts, yet is not a purchaser obliged to see whether more be sold than is sufficient to pay tlie debts ; for he is not obliged to enter into the account; and the trustees cannot sell just so much as is sufficient to pay the debts. Besides the trust is in most instances to raise money for their costs and charges. (o) And so, 1 presume, a mortgagee is not obliged to see whether more money be raised than is suffi- cient to pay the debts and expenses. If an estate be devised to trustees for payment of debts generally, and the trustees convey to the heir subject to the trust, a mortgagee from the heir is equally discharged from seeing to the application of the money as he would have been if the trustees had mortgaged ; for the power to give a discharge lies not in the person, but in the very nature of the trust; though it be considered a breach of trust in the trustees to convey over; and, if the heir misap- ply the money, they will be liable. (/?) But, if lands be conveyed to trustees to sell and apply the money upon specified trusts, with a power for them to give discharges, but no power to change trustees ; if one of the trustees conveys over to the others, the remaining trustees are not by themselves competent to give a dis- charge for the purchase-money ; because, though by the (?«) l^loyd V. Baldwin, I Ves. (o) Spalding w.Shalmer, 1 Vern. 173,174. 301. Lutwych u. Winford, 2 Bro. (n) Walkerxj. Smallwood, Arab. C. C. 248. 676. Culpepper :;. Aston, 2 Cha. (p) Hard wick u. Mynd, 1 Anstr. Ca. 115, 116, 223. 109. See also 8 Ves. 432. 2d2 404 OF SEEING TO THE [CllAP. XI. conveynncc the lands passed, yet tlic power to give a dis- charge, which was personal to the trustee, he could not convey away.(3. ante 253. 416. (0 Monkhouse v. Corporation of Chap. XI.] of mortgage money. 423 payment of 500/. and interest^ on a certain day, the term should cease and be void ; and the following indorsement was made on the mortgage deed, but without any seal or stamp to it, vk. "Received this day of March, 1738," (being after the day limited by the proviso,) " of A. B. so *' much money for all principal money, and interest, till '' this day ; and / do release the said A. B., and discharge " the within mortgaged preinises from the term of Jive " hundred years," which was signed by the mortgagee ; it was resolved by the Court, that the term was surrender- ed. For, first, before the statute of frauds, a lease for years, either by deed or parol, might have been surrendered without deed by parol; that the words release and dis- charge the term of Jive hundred years are much stronger than words which in many cases have amounted to a sur- render, ut res magis valeat quam, pereat. And, secondly, it appears, by the statute of frauds and perjuries, that a lease for any term of years may be created by writing without deed, and that the same may be surrendered l)y deed or note in writing. Vide sect. 3. of that statute. And the Court held that there was no occasion for any stamp duty upon this note or indorsement, it not being a deed.(w) But in an ejectment where a title is made under a mort- gage, and particularly if the mortgage is an old mortgage, if evidence is given that the debt is satisfied, this is con- sidered as defeating the estate in the lands which the mortgagee had ; and in such cases the Court will presume that the money was paid at the day, and will direct the jury to give their verdict accordingly, unless it clearly ap- pears that the money could not be paid at the day ; and no writing is necessary in these cases, (o) If it be a mortgage of copyholds, the mortgagee should (n) Farmer dem. Earl v. Rogers, 6 East. 86. 2 Wils. 26. Roe dem. Earl of (o) Barnard. Cha. Rep. 93. And Berkeley v. Archbishop of York, see Doe v. Calvert, 5 Taunt. 170. 424 OF THE PROOF OF PAYMENT, &C. [ChAP. XL enter up satisfaction on the court rolls of the manor ; (p) and if of an estate in a register county, there should be an entry of satisfaction made in the margin against the me- morial of the mortgage, (q) And if a judgment was given as a collateral security, the mortgagee should enter up satis- faction on the judgment, (r) These acts the mortgagor may require the mortgagee to do : but the mortgagee will be allowed all his expences ; for the payment of the mo- ney has reduced the mortgagee to a trustee for the mort- gagor, (s) (p) Ante 102. (9) Ante 3$2, 35^. (r) 4 Bro. P. C. 451. (s) Barnard. Cha. Pep. 93. 425 CHAPTER XII. OF FORECLOSURE. The mortgagor's equity of redemption, or, in other words, his power in equity to redeem the lands after the condi- tion forfeited at law^ may be lost either by length of pos- session in the mortgagee, by the mortgagor's default to redeem in a bill for redemption, or upon a bill of fore- closure filed by the mortgagee. Of the first of these modes of losing the equity of re- demption we have already had occasion to speak in treat- ing of an equity of redemption. The second too has been discussed at length. So that here it may be only necessary to call to recollection, that the decree on a bill for redemption is that the mortgagor shall redeem or stand foreclosed; (a) and that the default of the mortgagor in redeeming on the day mentioned in the decree is irrecoverable, and loses him his estate; {h) and further, that the Court will not on a bill to redeem enlarge the time, as it will on a bill for foreclosure, (c) We have, therefore, now to consider the last of the means above mentioned by which the equity of redemp- tion may be lost, viz. by a bill of foreclosure. Which term (a) Dick. 56. 249. 2 Bro. C C. 2 Atk. 246. 278. 12 Ves. 58, 59. (c) Novosiel&ki v. Wakefield, 17 (b) 1 1 Ves. 199. Garth t-.Ward, Ves. 417. 426 OF FORECLOSURE. [ChAP. XIL of foreclosure, if it were necessary to our present purpose, we might refer to the rehef sought by such a bill, viz. of /ore-closing the mortgagor of his power to redeem the estate before the time, when the mortgagee would other- wise acquire an absolute title by length of possession, un- less the mortgagor shall within a reasonable time deter- mine his election by redeeming the estate : for on a bill for foreclosure, as on a bill for redemption, the decree is al- ways in the alternative ; that the mortgagor shall redeem, or that the plaintiff (the mortgagee) shall hold the land against the defendant, (the mortgagor) and all claiming under him. (d) And it is on account of this power in the mortgagor to recover his estate by paying the money, that I have, in the Chapter on Mortgagees, reckoned a bill of foreclosure as one of the means by which equity will assist a mort- gagee to recover the capital of his debt, (e) In certain instances it is proper, and in others it seems advisable, instead of a bill for foreclosure, to file a bill for a sale of the estate. Thus in Lucas v. Scale, (/) Lord Hardvvicke observed, that '' where there are several executors, and one of them is indebted to the testator, for which he had given a security by way of mortgage upon his estate, if the co-executors are apprehensive that he is insolvent, and that the estate may prove a deficient security, bringing a bill against him to foreclose is improper; because, the testator having made him an executor gives him an interest in the mortgage, the other executors should have brought a bill for sale of the estate. Independent of the reason reported to have been given (d) 1 Cha. Ca. 218. See the 166. pi. 3. decree which was made in that case (e) Ante 81. in 1656. See also 1 Ey. Ca, Abr. (/) 2 Atk. 66. Chap. XII.] of foreclosure. 427 by Lord Hardwicke in this case why the co-executors should pray a sale, i. e. because the mortgagor being an executor had an interest in the mortgage, it seems that the prayer of the bill by the co-executors should have been the same, had it rested on the deficiency of the estate only. For, where a mortg^age security is deficient, the mortgagee can- not afterwards proceed upon the bond, or other collateral security, without opening the foreclosure. And to pray a foreclosure which the next day is liable to be opened is a mode of relief to which equity would not confine a bond fide mortgagee, since it is contrary to the first principle of equity to do substantial justice by setting the matter at rest, (g-) And against this conclusion no proper ground for argument can be furnished from the case of Dashwood V. Bithazey. (Ii) There the bill was to foreclose, the de- fendant appeared, and stood in contempt for not answer- ing to a sequestration ; and the cause came on upon the sequestration for the bill to be taken pro confesso. And the plaintiff prayed a sale, instead of a foreclosure, because the security was defective ; and, if they should afterwards sue the defendant on his bond, that would open the decree of foreclosure ; and it was insisted that such decrees were usual. But the Master of the Rolls said " he had never " known any, but that where the security was defective, '' it was often indeed referred to a Master to set a valua- " tion on the estate : and the plaintiff was to take it pro " tanto, as in the case of Homden v. Tilby, on a bill of *' foreclosure of the shops in Westminster Hall. But in " this case he decreed a sale, because the decree is that " the bill should be taken pro confesso, and not according *' to the prayer of the bill ;" which shews that the Master of the Rolls allowed the propriety of praying a sale where the security was deficient ; but thought that it could not (l) See 13 Ves. 203. {h) Mosl. 196. 428 OF FORECLOSURE. [ChAP. XII. be done in the common case under a bill of foreclosure. And in the same case the case of Nosworthy and Serjeant Maynard was quoted ; where the security being defective, the cause stood over and the plaintiff filed a supplemental bill, and prayed a sale. And the propriety of praying a sale instead of a fore- closure, where the mortgaged estate is deficient, is, 1 think, farther confirmed by the following case before Lord Thur- low. A mortgagee in fee filed his bill against the defend- ant, who was both heir and administrator of the mortgagor, praying an account of the principal and interest due on the mortgage, and praying a sale ; and, in case the mort- gaged premises should not prove sufficient to pay the prin- cipal and interest due, that the deficiency might be made up out of the personal estate ; and, in case the defendant should not admit assets, that there might be an account of the personal estate. The defendant, by his answer, ad- mitted the personal estate was very small, and would be deficient. And the cause coming on before his Honour, he ordered according to the prayer of the bill. From this decree the defendant appealed, because it had not ordered an account of the personal estate in the first instance, or that so much of the estate as should be necessary only should be sold. But the Lord Chancellor thought the de- cree of course, the heir and personal representative being the same person ; though, if they had been different per- sons, it would have been necessary first to have an ac- count of the personal estate. And the decree was affirm- ed, (i) In which case we may observe, that the decree for the sale was never questioned. And the Lord Chan- cellor's reason for thinking that the decree might have been varied, if the heir and executor had not been the same person, is only in favour of the heir who has a right (0 Daniel z). Skipwith, 2 Bro. C, C. 155. Chap. XII.] or foreclosure. 429 to have the personal estate in the first instance applied in exoneration of the real. But from this case we learn that^ when the real estate is insufficient to pay the mortgage debt, the mortgagee cannot pray a sale of the estate, without praying an account of the personal estate in the first instance ; unless the same per- son is both heir and personal representative to the mort- gagor. In Ireland it is the practice to decree a sale instead of a foreclosure : and if the sale produce more than the debt, the surplus goes to the mortgagor ; if less, the mortgagee has his remedy for the difference, (k) If it be a mortgage of a dry reversion, the mortgagee may in the first instance pray a sale ; the reason for which seems to be that a court of equity will not oblige a mort- gagee to be out of his money till the falling in of the estate. (/) In Mackensie v. Robinson, (m) it was said by Lord Hardwicke that a mortgagee of an advowson, instead of bringing a bill of foreclosure, should pray a sale of the ad- vowson ; which observation, as I have elsewhere observed, seems only to have been made with a view to meet the dif- ficulty which may arise by the advowson becoming vacant before the foreclosure is completed, (n) Where the mortgagor becomes bankrupt, the mortgagee may, under Lord Loughborough's general order, come in and pray a sale ; of which we have already had occasion to speak in the Chapter on Mortgagees. Where the mortgagor dies, and the equity of redemp- tion descends upon an infant, the mortgagee should pray a sale or foreclosure in the alternative ; for the Court will (A;) 13 Ves. 205. (m) 3 Atk. 559. (0 How u. Vigures, 1 Chii. Rep. («) Ante, p. Ill, 112. 32. 2 430 OF FORECLOSURE. [ChAP. XII. not suffer an infant to be foreclosed, when, if the mort- gagee will consent to a sale, a surplus may be got for the benefit of the infant. Upon which the Court will refer it to the Master to enquire whether it will be for the benefit of the infant that the estate should be sold, (o) And, al- though it was, till very lately, thought that a bill of fore- closure was the proper course to be pursued against an infant ; and that an infant defendant could not, upon such a bill, have a reference to the Master, to enquire whether a sale would be for his benefit : (p) yet the rule is now as above. But if upon a bill to foreclose an infant, the mortgagee will not consent to a sale, and the infant either prays a sale, or it appears to the Court that a sale would be bene- ficial to the infant, it seems that the Court may refuse to foreclose till the infant comes of age. And that the Court has exercised such power of refusal appears from the case of Sayle v. Freeland and Others, infants, wheie the Court would not decree the infants to be foreclosed till they came of age, because the mortgage in that case depended upon a disputable title ; and so no money could be expected upon assignment of it over. (9) So where one made a mortgage by lease and release of copyhold premises, witli a covenant for farther assurance, upon a bill filed by the mortgagee against the customary heir of the mortgagor, who was an infant, to surrender the copyhold premises, and for a foreclosure ; the Master of the Rolls held the infant bound by the covenant to assure : but would not direct him to make good the mortgage by surrendering the premises, or decree a foreclosure against him till 21. (r) (0) Mondey v. Mondey, 1 Ves. 83. and Bea. 223. Booth v. Rich, 1 (q) 2 Ventr. 350. : and see Vern.293. And see Adams o.Gould, Spencer v. Boyes, 4 Ves. 370. 2 Dick. 443. (r) Spencer v. Boyes, 4 Ves. (p) Goodier v. A&hton, 18 Ves. 370. Chap. XII. ] of foreclosure. 431 Where a sale is directed of mortgage premises, upon a bill by the mortgagee, it seems that the Court will give the infant a day to shew cause against the decree, after he at- tains 21. In the case of Adams v. Gould, before Lord Bathurst, the bill was filed by infants, who were devisees under a will, for a sale of the estates. Some of the defend- ants claimed under a forfeited mortgage of copyholds ; and the decree directed a reference to be made to the Master to take an account of the testator's debts ; and if the per- sonal estate was insufficient, '' then it was further ordered, by the consent of the said defendants, the mortgagees, that the said mortgaged premises be sold, with the appro- bation of the said Master, to the best purchaser or purchasers that can be got for the same ; and all deeds and writings in the custody or power of any of the parties relating thereto are to be produced before the said Master upon oath. And all proper parties, and the plaintiffs, the infants, when they shall attain their age of 21 years, arc to join in such sale as the said Master shall direct, unless the said plaintiffs, the infants, on being served with a sub- poena for that purpose, shall, within six months after they shall attain the said age of 21 years, shew unto this Court good cause unto the contrary ; and such purchaser or pur- chasers is or are in the mean time to hold and enjoy the said premises against the plaintiffs, the infimts, and all persons claiming by, from, or under them, or either of them." (s) And from Dickens' report of this case, it ap- pears, that the liberty allowed to the infants to shew cause against the decree, was a point that was much consi- dered, {t) In this case we may observe that the infants were plaintiffs, and yet had a day to shew cause: the case, therefore, is much stronger where an infant is made a defendant. Indeed, the rule is, that an infant defendant (0 Reg, Lib. A. 1770. fol. G46. (0 Adams v. Gould, 2 Dick. 443. 432 OF FORECLOSURE. [ChAP. XII. shall always have a day to shew cause against the decree^ within six months after arriving at full age ; and a decree omitting that provision would be erroneous, (w) Though in Mondey v. Mondey, (x) where Lord Eldon referred it to the Master to enquire whether a sale would be for the benefit of the infant^ and the Master found that it would, his Honor the Master of the Rolls confirmed this report, and ordered that the estate should be sold, wherein all proper parties were to join. (3/) But no day was given to the infant to shew cause against the decree. A decree of foreclosure may be had against an infant : but in all such cases the infant has six months' time, after he comes of age, to shew cause against the decree. But, though he may shew cause against the decree, yet the infant cannot, when he comes of age, ravel into the ac- count ; nor is he so much as entitled to redeem the mort- gage, by paying what is reported due ; but is only entitled to shew an error in the decree, (z) So that, except this power of shewing error, which the infant has, he is fore- closed to all intents. And the mortgagee has such a title that he may go to market with it ; and the purchaser is only liable to be overhauled in the account, (a) For the proposition, that the infant cannot ravel into the account must be taken with this limitation, viz. that there be no fraud or error in the account. (6) But, as we have already seen, the Court will not at this day decree a foreclosure against an infant, if a sale is more for his benefit, (c) (m) Savage v. Carroll, 1 Ball (2) 3 P. Wms. 352. and Lyne v. and Beat. 551. Gilb. For. Rom. Willis, in note B. there. Richmond 160. V. Taylor, 1 Dick. 38. (x) 1 Ves. and Bea. 223. (a) 3 Ves. 317. {y) Lib. Reg. B. 1816. fol. 1326. (fi) Ante 155. S. C. Lib. Reg. B. 1817. fol. 958. (c) Mondey v. Mondey, 1 Ves. Aq order confirming the sale. and Bea. 223. Chap. XII.] of foreclosure. 433 The words of the decree against an infant are these, viz. " And this decree is to be binding on the defendant '' J. A., the infant, unless he, on attaining his age of 21 '^ years, upon being served with a subpoena to shew cause " against the same, shall, within six months after he shall ^' attain such age, shew unto this Court good cause to "the contrary." (cZ) This process is by way of sub- poena, to be served on the defendant at his coming of age; and it is a judicial writ, and must be returned in term time. If he shews no cause, the decree is made absolute upon him. (e) But when he comes of age and shews cause, within the six months, he may, upon motion, put in a new answer, and make a new defence ; and, by consequence, examine wit- nesses anew to prove his defence. (/) But the infant is not obliged to wait till twenty-one to put in a new answer, but may do it before, (g) Where upon a decree of foreclosure the infant had a day to shew cause ; and, before he was served with a sub- poena to shew cause against the decree, left the kingdom ; Lord Thurlow would not allow a service of the subpoena upon his clerk in Court to be a good service ; but thought that it must be personal, or that it should be fully proved that he had left the kingdom, or had absconded to avoid the service. Afterwards an affidavit having been made that the defendant was greatly indebted to divers persons, and that he had declared it was his intention to leave the kinjr- dom to avoid his creditors, the Lords Commissioners, without the least hesitation, granted the motion, (/i) (d) Taken from the decree in Wms. 401. S. C. 3 Bro. P. C. 30J. Goodier r. Ashton, 18 Ves. 83. Fountaine u. Caine, 1 P. Wms. 504.- Lib. Reg. A. 1810. fol. 1217. Mos. 66. 306, 313. (e) Gilb. For. Rom. 160. (g) Beunet v. Lee, 2 Atk. 531, (/) Gilb. For. Rom. 160, 161. 532. Napier v. Lady Effingham, 2 P. (A) Elcockw. Glegg5 2Dick.764.' 2r 4S4 OF FORECLOSURE. [Ch,AP. XII. The case of a feme covert is different from that of an infant; for she may be absolutely foreclosed^ and shall have no day given to her or her heirs to redeem after the co- verture determined. (?*) If the mortgagee takes his security by a defective con- veyance^ the Court will not make good the defect or de- cree a foreclosure, as against an infant entitled to the equity of redemption: but it seems that the decree in such case will be that the defendant do pay to the mortgagee what the master shall report due within six months after, or in default that the mortgagee shall enjoy the mortgaged premises, as against the defendant, until he shall attain the age of twenty-one years; and that upon his attaining the age of twenty-one years the defendant shall convey the premises to the plaintiff, unless, upon being served with a subpoena, he shall, within six months afterwards, shew cause to the contrary. (A:) But, as against adults, the Court will decree them to redeem, or stand foreclosed, and execute all proper conveyances of the mortgaged premises to the plaintiff and his heirs. (/) J. If the mortgagor be attainted of treason, the Court of Chancery will not decree a foreclosure against the crown, but will direct that the mortgagee shall hold and enjoy the premises till the crown thinks proper to redeem, (in) No decree of foreclosure is necessary upon a mortgage of stock: but the mortgagee may, at any time after the condition forfeited, sell the stock, and repay himself the See the act 5 Geo. 2. c. 25. Carter (0 Mallack v. Galton, 3 P. Wms. V. De Brune, 1 Dick. 39. Hyde v. 352. S. C. Dick. 65. Forster, 1 Dick. 102. Wellings u. (k) Spencer u. Boyes, 4 Ves.370. Lotsans, 2 Dick. 379. ; and the Irish Sayle v. Freelaud, 2 Vent. 350. act 7 Geo. 2. c. 14. 2 Scho. and (I) Pye i>. Daubuz, 3 Bro. C. C. Lef. 282. note. For service of sub- 595. S.C. 2 Dick. 759. poena and relief of mortgagees, (m) Lutwich's case, cited 2 Atk. where the mortgagor absconds, or is 223. oat of the jurisdiction of the Court. Chap. XIIJ of foreclosure. 435 money. And, if the stock should afterwards rise in value, the mortgagor cannot come for a redemption, and insist upon having the stock replaced, (w) A mortgagee cannot bring a bill of foreclosure till after the condition forfeited at law; for till that time the mort- gagor's estate is not turned to an equity of redemption, and he is at liberty to redeem by the express agreement of the parties at law. (o) And, therefore, upon a Welch mortgage there can be no foreclosure, because there can be no forfeiture of the condition, (p) But if a mortgage be made on the 25th of December, 1820, with a condition that the mortgagor shall be at liberty to redeem, on paying half a year's interest on the 24th of June following, and the principal and another half year's interest on the 25th of December, 1821, and the mortgagor makes default in paying the interest on the 24th of June, the mortgagee may immediately proceed to a foreclosure; for one default is a forfeiture of the condition, and makes the estate absolute in the mortgagee. (9) But a mortgagee may bring his bill for a foreclosure be- fore he has taken possession of the mortgaged premises ; and, after he has obtained a decree to foreclose, he may bring his ejectment for the possession of the estate. So upon a mortgage of copyholds the mortgagee may bring his bill to foreclose before admittance. (?) And if the mortgage surrender has become void for want of a timely presentment, the decree will direct the defendant, in case of a foreclosure, to surrender the mortgaged premises at the expence of the plaintiff, (s) (n) Tucker r, Wilson, 1 P.Wms. Price,Gilb. 106. S.C. lP.Wms.291. 259. Lockwood r. Ewer, 2 Atk. (7) Stanhope r. Manners, 2Eden. 303. But see these cases, and 15 197. Gladwin v. Ilitchman, 2 Vin. 476. pi. 7. Vern.135. (0) 1 Vern. 232. 2 Ventr. 365. (r) Sutton v. Stone, 2 Alk. 101. (/>) 1 Ves. 407. Howell v. (s) Hill v. Price, 1 Dick. 344. 2f2 436 OF FORECLOSURE. [ChAP. XII. And a mortgagee may pursue all his remedies at once as bring an action on the covenant to repay, an ejectment to recover the possession, and a bill to foreclose the re- demption at the same t\me.(t) But he cannot have the estate and the money too. If an estate is conveyed by way of mortgage to A., as a trustee for B., B. cannot bring a bill of foreclosure with- out making the trustee a party ; for it is the legal estate of the trustee that is to be protected by the decree of fore- closure, and he is a necessary party to the reconveyance if the mortgagor should redeem. And, therefore^ where a mortgagee cestui que trust omitted to make the trustee a party, the Vice-Chancellor ordered the cause to stand over, with liberty to amend by adding parties ; and the plaintiff was to pay the costs of the day. (w) But where trustees laid out the money of different cestuis que trust upon a mortgage, which they took in their own names, a foreclosure was permitted by one cestui que trust as to his share; the trustees having refused to assist the plaintiff in recovering his money, and being made defendants in the cause, (x) But in a prior case, where a mortgagee assigned over the mortgage to a trustee in trust for three persons, who contributed equal proportions of the money, and one of the three filed a bill to foreclose, the Lord Chancellor said it was a new case in respect of tlieir being joint tenants ; and that it would be impossible for one to fore- close without joining the other two parties. The cause, therefore, stood over for that purpose, (i/) (<) Rees r. Parkinson, "2 Anstr. 186. 497. Dougl. 417. 2 Yes. 678. (x) Monfgomerie y. The Marquis 2 Atk. 343. Sometimes the Court of Bath, 3 Ves. 560. will grant injunction to stay pro- (i/) Lowe o. Morgan, iBro.C.C ceedin^s at law. Ante 85, 86. 368. (m) Wood V. Williams, 4 Mad. 1 Chap. XII.] of foreclosure. 437 Which two cases it seems difficult to reconcile upon the j^round given by the Lord Chancellor, in the case last no- ticed ; viz. of the assignees of the mortgage having been joint tenants ; for, if two persons advance money in the same or different proportions upon a mortgage, they are nevertheless tenants in common in equity, (s) If the heir of the mortgagee bring a bill to redeem, or else be foreclosed, it will be a good cause for demurrer, that the executor of the mortgagee, who may have title to the money, is no party to the suit. («) So if at the hearing it comes out that the executor of the mortgagee is not a party, the plaintiff (heir of the mortgagee) will not be ad- mitted to proceed. (6) But it seems that if the heir of the mortgagee alone ex- hibit a bill, and obtain a foreclosure, the mortgagor cannot afterwards be let in to redeem, (c) The devisee of the mortgagee, who is entitled both to the land and money, need not make the heir of the mortgagee a party to the bill to foreclose.(rf) Which rule is so unalter- ably settled that where the devisee of a mortgagee, who de- vised to him both the mortgaged premises and the money due thereon, filed a bill to foreclose, and made the heir of the mortaacree a defendant to have the will established against him. Lord Kcnyon, the Master of the Rolls, in directing the account, would not allow the estate to be bur- thened with the costs of the heir of the mortgagee, he be- ing made a party by reason of the act of the mortgagee in the disposition of his estate, (e) From the case of Wood v. Williams, (/) above cited, it (2) 2 Ves. 258. 3 Ves. jun. G31. 60. ; and sco (lobe v. Earl of Car- (a) Freak v. llcarsey, llorscloy, lisle tliere cited, or Horsey, 1 Cha.Ca. 51. 2 Freeni. (U) IJovv t^.Vigures, I Clia. Rep. 180. Nels. C. C. 93. 33. 1 Eq. Ca. Abr. 3 IS. pi. 5. (6) Meeker y. Tanton, 2 Cha. (d) Skipp t'. W>att, I Cox 353. Ca. 29. (/) 4 Mad. 186. (c) Clerksou u. Bowyer, SVern. 438 OF FORECLOSURE. [ChAP. XII. stands to reason that the executor of a mortgagee in fee cannot file a bill to redeem or be foreclosed without mak- ing the heir of the mortgagee a parly ; because^ if the mortgagor should redeem,, there must be a reconveyance, and the mortgagor may take the objection at the hearing, A sub-mortgagee cannot file a bill to foreclose the original mortgagor without making his own mortgagor a party : as if A. makes a mortgage to B. for five hundred years, for securing 350/. and interest, and B. assigns the term to C, redeemable by himself on the payment of 300/., C. cannot bring a bill to foreclose A. without making B. or his representative a party ; for B. has a right to redeem C, and to prevent another account as to what was due upon the original mortgage. And the assignment to C. having been made twenty-six years before the bill brought by him to redeem A., will make no difference, (g-) But if the mortgagee assign the mortgaged premises and the money absolutely, the assignee may foreclose without making the mortgagee a party ; although the mortgagor states in his answer that the assignee has paid the mortgagee more than is due on the mortgage ; for, if that should appear on taking the account, the assignee could not be allowed it. (Ji) A mortgagee in fee, seeking to foreclose the equity of redemption, need not bring the personal representatives of the mortgagor before the Court : but the heir of the mort- gagor must be made a defendant. For the bill being to foreclose the equity, the plaintiff need make him only a party who has the equity, viz. the heir, and the course is so. Neither is the plaintiff, the mortgagee, any ways bound to intermeddle with the personal estate of the mortgagor, or to run into any account thereof. And if the heir would have the benefit of any payment {g) HobarttJ. Abbot, 2 P. Wms. (/*) Call v. Mortimer, 8th July, ^•^^' 1791. 9 Ves. 268, 269. Chap. XII.] of foreclosure. 439 made by the mortgagor or his executor, he must prove it. (i) So if a person seized in fee make a mortgage for a term of years, redeemable by himself, his heirs, executors, or administrators, the mortgagee need not make the per- sonal representative a party to a bill to foreclose. Nay, he ought not : for, if he does, the personal representative may have the bill dismissed as against him, and most pro- bably with costs, (k) But in a bill for sale the personal representative of the mortgagor must be a party as well as the real, for the per- sonal estate must be applied before the Court will decree the real estate to be sold. (/) Where there is one mortgage of freehold and of lease- hold estates, and the mortgagor dies, both heirs and executors must be parties to a bill of foreclosure. (?n) If the mortgagor become a bankrupt, he is not a neces- sary party ; it is sufficient to bring the assignees before the Court, (n) A mortgagee must make all subsequent incumbrancers upon the equity of redemption, who have obtained their securities subsequent in point of time to the mortgage, but previous to the filing of the bill, parties to a bill of foreclosure, (o) And if, in order to bring the personal representatives of a subsequent incumbrancer before the Court, the mortgagee is obliged to procure a person to take out letters of administration to him, the mortgagee (0 Buncombe v. Hanslcy, 3 P. C. C. 276. Anie, 197. Wms. 333. note A. Felly. Brown, (m) Robins v. Hodgson, at the SBro.C.C. 279. Rolls, 15th Feb. 1794, cited in (k) Bradshaw v. Outram, 1 3 Ves. Ilarr. Cha. Prac. 30. 234. Bill dismissed against the («) Adams v. Holbrooke, MSS- executrix, and, bt/ consent, without Harr. Cha. Prac. 30. costs. (o) Godfrey y. Chad well, 2 Vern. (0 Daniel v. Skipwith, 2 Bro. 601. Morret u. Westerne, 2 Vein, C. C. 155, Fell V, Brown, 2 Bro. 663. 2Ffeem. 14. 440 OF FORECLOSURE. [ChAP. XIL will be allowed the costs of that administration ; for the original mortgagor, by parcelling out the equity of re- demption, occasioned the necessity for it. (p) But the case of the Bishop of Winchester v. Beavor^ before Lord Alvanley, (q) should here be noticed. Upon a bill of foreclosure the defendants objected that a subse- quent judgment creditor was not made a party. The usual and common practice, almost without exception, is, to make all incumbrancers parties. But, said his Honour, '' if I lay down that it is absolutely necessary, I arm a man with a shield to ward off a foreclosure. But the question is, whether it is not proper in this case. I think it would be too much to refuse it, where there is no affectation of delay that I can see. I do not think the general point so clear as to determine it upon this case. I hope the Court is not bound to insist upon all incumbrancers being parties : but I am perfectly satisfied that in this case it is by much the least evil to order the cause to stand over till this single incumbrancer is made a party/' And the principal rea- son for making all subsequent incumbrancers parties is, the gross injustice that would arise if the Court might compel the mortgagee to reconvey the legal estate to the mortgagor, where it appears that he has no right to it ; and which legal estate he might use to keep off the inter- vening incumbrancers, (r) But if, after a bill filed by the first mortgagee to fore- close, the mortgagor confesses judgments, (s) or mort- gages to second mortgagees, (t) or assigns the equity of redemption, (w) the plaintiff mortgagee need take no notice of such subsequent incumbrancers ; and they will be bound, notwithstanding they were no parties to the suit. (p) Hunt V. Fownes, 9 Ves. 70. (0 Bishop of Winchester v. (q) 3 Ves. 317. Payne, 11 Ves. 194. (r) 3 Ves. 316. (u) Garth v. Ward, 2 Atk. 175. (s) 3 Ves. 315. 11 Ves. 198. 11 Ves. 199. Chap. XII.] of foreclosure. 441 Insomuch that where a purchaser took an objection to a title, that two mortgagees, become such after the bill filed, were made no parties to the foreclosure, the exception was disallowed, and the purchaser had to pay costs, (v) From these cases it appears that the case of Crisp v. Heath, (w) stated by Mr. Viner, is not law now. But if the mortgagee, who brings a bill of foreclosure, has not the legal estate, and the mortgagor during the pendency of the suit conveys it away, the mortgagee, in order to avoid such conveyance, might be put to a new suit, (x) If a mortgagee omits to make any of the incumbrancers who have become such after the making of his mortgage, and before the filing of his bill, parties to the bill of fore- closure, and obtains a decree of foreclosure, such of the incumbrancers as were not defendants in the suit may open the foreclosure, and be let in to redeem. (3/) But in such case such of the incumbrancers as were parties to the suit will be bound by the decree of fore- closure. (2;) If a bill be filed by the creditors of a mortgagor for sale of his estate, and the mortgagee, pending such suit, fore- closes, without making the creditors parties, the foreclosure will not be binding upon the creditors, but they may be let in to redeem, (a) If a mortgagor, after having made the mortgage, devises or settles the equity of redemption to various uses, the mortgagee need not make all the remainder-men parties (v) Bishop of Winchester v. Cox, 2 Freem. 14. S. C. 3 Cha. Payne, llVes. 194. Rep. 83. (w) 7 Vin. Abr. 52. pi. 2. (z) Sherman v. Cockes, or Cox, (a:) 11 Ves. 199. 4 Dow. 435. 2 Freem. 13. S, C. 2Vern. 518. (j/) Godfrey v. Chad wick, 2 Nels. 71. Vern. 601. Morret v. Westerne, («) Soley v. Salisbury, 9 Mod. 2Vern.663. Sherman y. Cockes, or 153. 442 OF FORECLOSURE. [ChAP. XII. to the bill to foreclose : but it will be sufficient if the first tenant in tail, and the persons having interests under limita- tions prior to his estate-tail, be before the Court. (6) And a decree to foreclose the tenant-in-tail will be binding, not only upon his issue, but also upon all the remainder- men, (c) And if, instead of the decree for foreclosure beina- made absolute upon the tenant in tail, the tenant in tail releases the equity of redemption to the mortgagee, such release will be considered equal to an absolute fore- closure by order, and will be binding upon the remainder- men, (d) And though in a general way, where there is a tenant for life, the remainder-man also ought to be a party, (e) Yet if the tenant in tail in remainder is abroad, and out of the jurisdiction of the Court, and the plaintiff chooses it, the Court will decree a foreclosure against the parties that are before the Court. But such a decree would not relieve the mortgagee from keeping accounts of the rents and profits, because the tenant in tail might compel an account over again whenever he thought fit. (/) In the case of Roscarrick v. Barton, (g) it is true, that a foreclosure obtained against a tenant for life only was held binding upon a remainderman in tail. But that case occurred in the 24th of Charles the Second, and cannot, as it is presumed, be supposed to be law at this day. (h) The time which the defendant has upon all bills of forc- es) 1 Dow. 31. Ante, 196. (e) 2 Atk. 101. (c) Roscarrick v. Barton, 1 Cha. (/) Fishwick v. Lowe, 1 Cox. Ca. 217, 220, and in the margin 411. there. S. C. cited 3 Cha. Rep. 85, (g) 1 Cha. Ca. 217. S.C. cited 3 86. 2 Atk. 101. Yates y. Hambly, Cha. Rep. 86. 2 Atk. 237. Reynoldson v. Per- (h) See Fishwicke v. Lowe, 1 kins, Amb. 564. Cox 411. 2 Atk. 101, 237. Amb. (d) Reynoldson y. Perkins, 364. Amb. 364. Chap. XII.] of foreclosure. 443 closure to redeem, or be foreclosed, is computed according to calendar, and not lunar, months, (i) The time allowed to a mortgagor to redeem upon a bill of foreclosure may be enlarged several times; and has been enlarged even to a fourth time ; and that notwithstanding the preceding order was peremptory, if the mortgagor can shew n-ood cause: and the estate being worth more than the incumbrance upon it, will be considered a sufficient reason to make such further order. ( j) And though the decree for foreclosure has been signed and enrolled ; yet, if it appears that there was no wilful de- fault on the part of the mortgagor, and there is new matter subsequent to the decree, the Court, it seems, would open the decree for foreclosure. (A:) If the defendant upon a bill of foreclosure refuses to produce the title deeds, it seems to be a good reason to en- large the time to redeem. (/) Where an order has been made under the Tth Geo. II. c. 20. s. 2. a further order may be made to enlarge the time to redeem ; for the latter words of the act put it ex- actly in the same situation as if the cause had been brought to a hearing. And one of the intents and purposes must be to give the Court this jurisdiction, (m) If a mortgagor disputes the right of the mortgagee to the money ; but the mortgagee nevertheless obtains a de- cree of foreclosure ; the Court cannot, upon motion, sus- pend the execution of the decree until six months after an appeal shall be heard : but will allow the mortgagor six months from the time fixed by the Master's report, (0 Anon. Barnard. C. C. 324. 61. S. C. 1 Cha. Rep. 253.—- S. C. 2 Eq. Ca. Abr. 605. pi. 38. Ismoord v. Claypool, 1 Cha. Rep. O) Anon. Barnard. C. C. 221. 262. S. C. 2 Eq. Ca. Abr. 605. pi. 37. (0 Anon. MosL 246. Edwards v. Cunliffe, 1 Mad. 287. (m) Wakerell v. Delight, 9 Ves. {k) Cocker v. Bevis, 1 Cha. Ca. 36. 444 OF FORECLOSURE. [ChAP. XII. upon his consenting to the appointment of a receiver, and paying the plaintiff the interest due from the time of filing the bill, and the costs, upon his undertaking to repay, if the decree shall be reversed, (n) Upon a motion for further time to redeem a mortgage, and that it should stand as a security only for what was bond fide advanced, but forfeited as to what was won at play. Lord Chancellor Hardwicke thought that, as Mr. Fleetwood in a former cause, where he might have done it, did not insist upon a redemption, the foreclosure could not regularly be kept open : but on the whole circumstances his Lordship allowed three months, (o) A decree for foreclosure is not complete till the final order. Therefore, where to a bill to redeem the defend- ant pleaded a decree of foreclosure, with averment, of non- payment of the money, but there was no final order for foreclosure, the decree was an old one ; yet the plea could not stand for want of a final order. (/>) But a release of the equity of redemption by the mort- gagor to the mortgagee after the decree is equal to an ab- solute foreclosure by order, {q) If the mortgagee loses any of the title deeds, this cir- cumstance, as it seems, would not be a good ground to re- fuse a foreclosure ; but an inquiry would be directed to ascertain what was become of the title deeds, (r) The Court of Chancery^ it seems, will not, in decreeing a foreclosure, point out what title the mortgagor shall make: but only decree him to redeem, or make a good title to the mortgagee, and execute all proper assurances, (s) (n) Monkhouse v. Corporation 564. of Bedford, 17 Ves. 380. (r) Stokoe v. Robson, 3 Ves. (o) Fleetwood v. Jansea, 2 Atk. and Bea. 51. 467. (s) Sutton y. Stone, 2 Atk. 101. (p) Jones V. Kenrick, 2 Ves. Per Mr. Justice Wright. Pye y. 450. cited by Lord Hardwicke, C. Daubuz, 3 Bro. C. C. 598. Anon. ( ALWAYS, and it is hereby agreed and declared, by and between the said parties to these presents, that if the said A. B., his heirs, executors or administrators, or any of them, shall, at or in the common dining hall of Lincoln's Inn, in the county of Middlesex, well and truly pay, or cause to be paid, unto the said C. D., his executors, administrators or assigns, the sum of 1000/. of lawful money of Great Britain, with in- terest for the same, after the rate of 5l. for every 100/. for a year, in manner following, (that is to say) the sum of 25/. being one half year's interest thereof, after the rate aforesaid, on the 2Sth day of March, now next ensuing, and the sum of 1025/. being the said principal money, and another half year's interest thereof, after the rate aforesaid, on the 28th day of September, then next following, and which will be in the year of our Lord 1822, without making any deduction, defalcation or abatement thereout whatsoever, for or by reason or means of any taxes, assess- ments, or impositions, taxed, charged, assessed, or imposed, or to be tax- ed, charged, assessed, or imposed upon the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore men- tioned, and intended to be hereby released, or upon the said sum of 1000/. and interest, hereby intended to be secured, or any part thereof respectively, or upon the said C. D,, his heirs, executors, administrators or assigns, for or in respect thereof, by any present or subsequent act of parliament, or other authority whatsoever, in any manner howsoever; then and from thenceforth he, the said C. D., his heirs or assigns, shall and will, upon the request, and at the costs and charges of the said A. B., his heirs or assigns, release and reconvey all and singular the said mes- APPENDIX, 461 suage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, with their and every of their appurtenances, unto and to the use of the said A. B., and his heirs, or unto such other person or persons as he or they shall direct or appoint, freed and discharged of and from all incumbrances made, done, or committed by him the said C. D., his heirs, executors, administrators or assigns, in the mean time. AND the said A. B. for himself, his heirs, executors, administrators and assigns, and every of them, doth covenant, promise, and agree, to and with the said C. D., his heirs, executors, administrators and assigns respectively, by these pre- sents, in manner following, (that is to say) that he the said A. B., his heirs, executors, administrators or assigns, or some or one of them, shall and will, at or in the common dining hall of Lincoln's Inn, in the county of Middlesex, well and truly pay, or cause to be paid, unto the said C. D., his executors, administrators or assigns, the sum of 1000/. of lawful money of Great Britain, with interest for the same, after the rate of 51. for every 100^. for a year, in manner following, (that is to say) the sum of 25/. being one half year's interest thereof, after the rate aforesaid, on the 28th day of March, now next ensuing, and the sura of 1025/. being the said principal money, and another half year's interest thereof, after the rate aforesaid, on the 28th day of September then next following, and which will be in the year of our Lord 1822, without any deduction, de- falcation, or abatement for taxes, or otherwise howsoever. And also, that he the said A. B,, now at the time of the sealing and delivery of these presents, is and slaiideth lawfully, rightfully, and absolutely, seized of and in all and singular the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, with their and every of their appurtenances of and for a good, sure, perfect, absolute and indefeasible estate of in- heritance in fee simple in possession, without any manner of condition, trust, power of revocation, remainder or limitation of any use or uses, or other restraint, cause, matter or thing whatsoever, to alter, change, charge, defeat, revoke, make void, lessen or encumber the same. And also, that he the said A. B. now hath in himself good right, full powe^-, and lawful and absolute authority, by these presents, to release, convey and assure all and singular the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, and every part and parcel thereof, with their and every of their appurtenances, unto and to the use of the said C. D., his heirs and assigns for ever, in manner and form aforesaid, and according to the true intent and meaning of these presents. And further, that if 40)2 APPENDIX. default shall happen to be made of or in payment of the said sum of 1000/., and interest for the same, at and after the rate aforesaid, or any part thereof, on the days and times, and at the place and in manner in the proviso above mentioned for payment thereof, that then and from thenceforth it shall and may be lawful to and for the said C. D., his heirs and assigns, into and upon all and singular the said messuage or tene- ment, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, or any part thereof, to enter, and the same from thenceforth peaceably and quietly to have, hold, and enjoy, and the rents, issues and profits thereof to receive and take to his and their own use and benefit without any lawful let, suit, trouble, hindrance, eviction, expulsion or interruption of or by the said A. B,, his heirs or assigns, or any other person or persons whomsoever. And that free and clear, and freely and clearly acquitted, exonerated and dis- charged, or otherwise by the said A. B. his heirs, executors, administra- tors and assigns, or some or one of them, well and sufficiently saved, de- fended, kept harmless, and indemnified, of from and against all and all manner of former and other gifts, grants, bargains, sales, leases, mort- gages, jointures, dowers, right and title of dower, uses, trusts, wills, entails, statutes, recognizances, judgments, extents, executions, rents and arrears of rent, annuities, estates, titles, troubles, charges and incum- brances whatsoever, had, made, done, committed or suffered by him the said A. B., his heirs or assigns, or any other person or persons whomso- ever. And moreover that he the said A. B. and his heirs, and all and every other person and persons having or lawfully claiming, or who shall or may at any time hereafter have or lawfully claim any estate, right, title, trust or interest, of into or out of the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore men- tioned and intended to be hereby released, or any part or parcel thereof, shall and will, from time to time and at all times after default shall hap- pen to be made of or in payment of the said sum of 1000/. and the in- terest thereof or any part thereof respectively, on the days and times and in manner hereinbefore mentioned, and appointed for payment thereof, upon the reasonable request of the said C. D., his heirs, executors, admi- nistrators or assigns, but at the costs and charges in the law of the said A. B., his heirs or assigns, make, do, acknowledge, levy, suffer and exe- cute, or cause and procure to be made, done, acknowledged, levied, suf- fered and executed, all and every such further and other lawful and rea- sonable act and acts, thing and things, deeds, devises, conveyances and assurances in the law whatsoever, for the further and better, more perfect and absolute granting, releasing, assuring and confirming all and singular APPENDI3t. 463 the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned and intended to be hereby released, with their and every of their appurtenances, unto and to the use of the said C. D., his heirs and assigns, for ever, freed and discharged of and from the proviso or condition hereinbefore contained, for redemption of the same hereditaments and premises and all other equity of redemption whatsoever, as by the said C. D., his heirs or assigns, or his or their counsel learned in the law, shall be lawfully and reasonably devised or advised and required. AND it is hereby agreed and declared by and between the said parties to these presents, that in the mean time and until default shall happen to be made of or in payment of the said sum of 1000/. and interest, or some part thereof respectively, contrary to the form and effect of the aforesaid proviso and covenant for payment thereof, it shall and may be lawful to and for the said A. B., his heirs and assigns, peaceably and quietly to have, hold and enjoy all and singular the said messuage or tenement, pieces or parcels of land, hereditaments and pre- mises hereinbefore mentioned and intended to be hereby released, with the appurtenances, and to receive and take the rents, issues, and profits thereof and of every part thereof, to and for his and their own proper use and benefit, without the lawful let, suit, denial, interruption or dis- turbance, of from or by the said C. D., his heirs, executors, adminis- trators or assigns, or any person or persons lawfully claiming or to claim by from or under or in trust for him, them, or any of them. In WIT- NESS, &c. No. IV. MORTGAGE BOND. KNOW ALL MEN by these presents, that I, A. B., of, &c. am held and firmly bound to C. D., of, &c. in the sum of 2000/. of law- ful money of Great Britain, to be paid to the said C. D. or his certain attorney, executors, administrators or assigns. For Mhich payment to be well and truly made I bind myself, my heirs, exe- cutors and administrators, and every of them, firmly by these presents sealed with my seal, dated the 28th day of September in the year of our Lord One thousand eight hundred and twenty- one. 464 APPENDIX. THE CONDITION of the aboTe-written obligation is such that if the above-bounden A. B., his heirs, executors or administrators, or any of them, do and shall well and truly pay or cause to be paid unto the above named C. D., his executors, administrators or assigns, at or in the common dining-hall of Lincoln's Inn, in the county of Middlesex, the sum of 1000/. of lawful money of Great Britain, with interest for the same after the rate of 51. for every hundred, for a year, in manner following, (that is to say) the sum of 25/., being one half year's interest thereof after the rate aforesaid, on the 28th day of March now next ensuing, and the sum of 1025/. being the said principal money, and another half year's interest thereof after the rate aforesaid, on the 28th day of September then next following, and which will be in the year of our Lord One thousand eight hundred and twenty-two, without making any deduction or abatement thereout whatsoever. Then the above-written obligation to be void and of none effect, but otherwise to be and remain in full force and virtue. No. V. WARRANT OF ATTORNEY to confess JUDGMENT. TO E. F,, G. H., and I. K., gentlemen, attornies of his Majesty's Court of King's Bench at Westminster, jointly and severally, or to any other attorney of the same Court. THESE are to desire and authorize you the attornies above named, or any one of you, or any other attorney of the Court of King's Bench aforesaid, to appear for me A. B. of, &c. in the said Court as of Trinity Term last, Michaelmas Term next, or any other subse- quent term, and then and there to receive a declaration for me in an action of debt * (a) on a bond or obligation made and en- tered into by me the said A. B. to C. D. of, &c., in the penal sum of 2000/. at the suit of the said C. D.* his executors or admi- nistrators; and thereupon to confess the same action, or else to suf- fer a judgment by nil dicit, or otherwise to pass against me in the same action, and to be thereupon forthwith entered up against me of record of (a) If the warrant be to secure money in an action of debt, instead of the words between the asterisks, say, *' for — — /. for money borrowed at the suit of C. D. of, &c." his, 5,c. APPENDIX. 465 the said Court for the said sum of 2000^. besides costs of suit. And I the said A. B. do hereby further authorize and empower you the said at- tornies, or any one of you, after the said judgment shall be entered up as aforesaid for me and in my name and as my act and deed to sign, seal and execute a good and sufficient release in the law to the said C. D., his heirs, executors and administrators of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all misprisions of error and errors, defects and imperfections whatso- ever, had, made, committed, done, or suffered in about touching or concerning the aforesaid judgment, or in about touching or concerning any writ, warrant, process, declaration, plea, entry, or other proceed- ings whatsoever, of or any way concerning the same; and for what you the said attornies or any one of you shall do or cause to be done in the premises, or any of them, this shall be to you and every of you a suffi- cient warrant and authority. — IN WITNESS, &c. DEFEAZANCE for the WARRANT of ATTORNEY, (a) MEMORANDUM that the within warrant of attorney is given for se- curing the payment from the within named A. B. to the within named C D. of the sum of 1000^. and interest (6) *according to the condition of the within mentioned bond,* being the same sum of 1000/. and interest as are secured to the said C. D. from the said A. B. by a mortgage made to him by certain indentures of lease and release, the lease bearing date the day next before the day of the date of the release, and the release bearing even date herewith. And it is agreed that no action, execution, or other process or proceedings shall be commenced, sued out or prose- cuted against the said A. B., his heirs, executors, administrators, lands, goods and chattels, upon the judgment to be entered up in pursuance of the within warrant, until default shall happen to be made in payment thereof, as witness our hands the day and year within written. C. D. Witness, L. M. A. B. (a) Ante 23, 24. (6) If the warrant be to secure money in an action for debt, instead of the words between the asterisks, say, " on the days and in manner following (that " is to say) the sum of 25/. being the interest thereof for half a-year, on the 28th " day of March now next ensuing, and the sum of 1025/., being the said princi- " pal money, and another half-year's intcresl thereof on the 28th day of Sept, " 1S22." 2h 466 APPENDIX. No. VI. MORTGAGE by DEMISE, With Covenant to insure against Fire. THIS INDENTURE made, &c. Between A. B. of &c. of the one part and C. D. of &c. of the other part. Whereas the said A. B. is seized of or well entitled unto the inheritance in fee simple in possession of and in the messuage or tenement, pieces or parcels of land and hereditaments hereinafter mentioned, and intended to be hereby granted, bargained, sold and demised, with the appurtenances. And whereas the said A. B., having occasion for the sum of 1., hath requested the said C. D. to lend and advance him the same, which he hath agreed to do upon having the repayment thereof with interest secured to him by a mortgage of the said messuage or tenement, pieces or parcels of land and hereditaments, in manner hereinafter mentioned. NOW THIS INDENTURE WIT- NESSETH that in pursuance of the said agreement, and for and in con- sideration of the sum of 1, of lawful money of Great Britain by the said C. D. to the said A. B. in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof he the said A, B. doth hereby acknowledge, and thereof and of and from the same and every part thereof doth acquit, release and discharge the said C. D., his heirs, executors and admlHlstrators, and every of them, for ever, by these presents He the said A. B. Hath granted, bargained, sold and de- mised, And by these presents Doth grant, bargain, sell and demise unto the said C. D., his executors, administrators and assigns, ALL, &c. (^insert the parcels) together with all and singular outhouses, buildings, barns, stables, yards, backsides, orchards, gardens, ways, watercourses, sewers, ditches, drains, lands, meadows, pastures, feedings, mines, delfs, quarries, woods, underwoods, commons, common of pasture and turbary, hedges, fences, lights, liberties, easements, profits, privileges, commodities, ad- vantages, emoluments, hereditaments and appurtenances whatsoever to the said messuage or tenement, pieces or parcels of land, hereditaments, and all and singular other the premises hereinbefore mentioned and in- tended to be hereby granted, bargained, sold and demised, or any part or parcel thereof belonging or in anywise appertaining, or to or with the same or any part thereof now or at any time heretofore u-ually had, held, used, occupied, possessed or enjoyed, or accepted, reputed, deemed, taken or known to be as part, parcel or member thereof, or of any part thereof, AND the reversion and reversions, remainder and remainders, yearly and APPENDIX. 467 other rents, issues and profits tliere^of, TO HAVE AND TO HOLD the said messuage or tenement, pieces or parcels of land, hereditaments, and all and singular other the premises hereinbefore mentioned, and in- tended to be hereby granted, bargained, sold and demised, with their and every of their appurtenances unto the said C. D., his executors, ad- ministrators and assigns, henceforth for and during and unto the full end and term of five hundred years, and fully to be complete and ended, with- out impeachment of or for any manner of waste; YIELDING AND PAY- ING therefore yearly and every year during the said term unto the said A. B., his heirs or assigns, the rent of one peppercorn, if the same shall be lawfully demanded, and subject to the proviso or agreement for making void the said term next hereinafter inserted and contained, (that is to say,) PROVIDED ALWAYS, and it is hereby agreed and declared by and between the said C. D. and A. B. that if the said A. B,, his heirs, executors, or administrators, shall and do well and truly pay or cause to be paid unto the said C. D., his executors, administrators or assigns, at or in the common dining-hall of Lincoln's Inn, in the county of Middlesex, the sum of /. of lawful money of Great Britain with interest for the same after the rate of 5^. for every 100^. by the year in manner following (that is to say) the sum of /. being half a year's in- terest on the said sum of 1, after the rate aforesaid, upon the clay of next ensuing the date of these presents, and (he further sum of /., being the said principal money, and another half year's in- terest after the rate aforesaid, upon the day of then next fol- lowing, and which will be in the year of our Lord , without making any deduction or abatement whatsoever thereout for or in respect of any taxes, charges, rates, assessments, impositions, or any other matter or thing already taxed, charged, assessed, or imposed, or which shall or may at any time or times hereafter be taxed, charged, assessed or imposed upon the said messuage or tenements, pieces or parcels of land, heredita- ments and premises hereinbefore mentioned and intended to be hereby "ranted, bargained, sold, and demised, or upon the said sum of 1. and interest, or any part thereof, or upon the said C. D., his executors, administrators, or assigns, in respect thereof by authority of parliament or otherwise howsoever, then and in such case the said term of 500 years shall cease and determine, any thing herein contained to the contrary thereof in anywise notwithstanding. AND the said A. B. doth for him- self, his heirs, executors and administrators, covenant, promise and agree to and with the said C. D., his executors, administrators and assigns, by these presents in manner following (that is to say) that he the said A. B , his heirs, executors or administrators shall and will well and truly pay or cause to be paid unto the said C. D., his executors, administrators 2h 2 468 APPENDIX. or assigns, the sum of /. of lawful money of Great Britain, with in- terest for the same at and after the rate of 5/. for every 100/. by the year on the days and times, and in the manner hereinbefore limited and ap- pointed for payment thereof according to the true intent and meaning of these presents, without any deduction or abatement whatsoever as afore- said; AND that he the said A. B. now at the time of the sealing and de- livery of these presents is and standeth lawfully, rightfully and absolutely seized of and in all and singular the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned and intended to be hereby granted, bargained, sold and demised, with their and every of their appurtenances of and in a good, sure, perfect, absolute and indefeasible estate of inheritance in fee simple in possession, without any manner of condition, trust, power of revocation, remainder or limit- ation of any use or uses or other restraint, cause, matter or thing what- soever to alter, change, charge, defeat, revoke, make void, lessen or in- cumber the same; and also that he the said A. B. now hath in himself good right, full power and lawful and absolute authority by these pre- sents to grant, bargain, sell and demise the said messuage oj tenement, pieces or parcels f land, hereditaments and premises hereinbefore men- tioned, and intended to be hereby granted, bargained, sold and demised, with their and every of their appurtenances, unto the said C. D., his ex- ecutors, administrators and assigns, in manner aforesaid according to the true intent and meaning of these presents. And fuutuer, that if default shall happen to be made of or in payment of the said sum of /. and the interest thereof, or of any part thereof unto the said C. D., his executors, administrators or assigns, on the days and times and in the manner hereinbefore limited and appointed for payment thereof contrary to the true intent and meaning of the said proviso and agreement herein- before contained; then and from thenceforth it shall and may be lawful to and for the said C. D., his executors, administrators or assigns from time to time and at all times thereafter peaceably and quietly to enter into and upon, and have, use, occupy, possess and enjoy the said messuage or tenement, pieces or parcels of land, hereditaments and premises herein- before mentioned, and intended to be hereby granted, bargained, sold and demised, with their and every of their appurtenances, and to have, receive and take the rents and profits thereof to and for his and their own use and benefit for and during the residue and remainder, which shall be then to come and unexpired of the said term of 500 years, without the let, suit, trouble, molestation, interruption or disturbance of him the said A. B., his heirs or assigns, or any other person or persons whomsoever. And that free and clear and freed and clearly acquitted, exonerated and discharged or otherwise by him the said A. B., his heirs, executors or APPENDIX. 469 administrators well and sufficiently saved, defended, kept harmless and indemnified of from and against all and all manner of former and other gifts, grants, bargains, sales, leases, demises, mortgages, jointure?, intails, rents and arrears of rent, statutes, judgments, titles, troubles, charges and incumbrances whatsoever. And moreover that he the said A. B., his heirs and assigns, and all and every other person and persons whomsoever having or lawfully or equitably claiming, or who shall or may hereafter have or lawfully or equitably claim any estate, right, title, trust, or in- terest in to or out of the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and in- tended to be hereby granted, bargained, sold and demised, or any part thereof from time to time and at all times after default shall happen to be made of or in payment of the said sum of 1, and interest, or of any part thereof contrary to the true intent and meaning of the said proviso and agreement hereinbefore contained, shall and will at the request of the said C. D., his executors, administrators or assigns, but at the proper costs and charges of the said A. B., his heirs or assigns, make, do, acknow- ledge, levy, suffer and execute, or cause or procure to be made, done, ac- knowledged, levied, suffered and executed, all and every such further and other lawful and reasonable act and acts, thing and things, deed and deeds, conveyances and assurances in the law whatsoever, not only for the further, better, more perfect and absolute granting, conveying and assuring all and singular the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby granted, bargained, sold and demised with their appurte- nances, unto the said C. D., his executors, administrators and assigns, for and during all the rest and residue which shall be then to come and un- expired of the said term of 500 years therein granted as aforesaid, freed and discharged of and from the proviso and condition hereinbefore con- tained, and all other provisos, rights, equity and benefit of redemption whatsoever ; but also for the perfect and absolute granting, conveying and assuring the reversion and inheritance in fee simple expectant on the determination of the said term of 300 years of and in the said messuage or tenement, pieces or parcels of land, hereditaments and premises here- inbefore mentioned, and intended to be hereby granted, bargained, sold and demised unto the said C. D., his heirs and assigns, or to some person or persons in trust for him and them as by the said C. D., his executors, administrators or assigns, or his their or any of their counsel learned in the law shall in that behalf be reasonably devised or advised and required. AND it is hereby agreed and declared by and between the said C. D. and A. B., that until default shall be made of or in payment of the said 470 APPENDIX. sum of 1, and interest hereby secured as aforesaid, or some part thereof, contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said A. B.,his heirs and assigns, peace- ably and quietly to have, hold, use, occupy, possess and enjoy all and singular the said messuage or tenement, pieces or parcels of land, here- ditaments, and premises hereinbefore mentioned and intended to be hereby granted, bargained, sold and demised, with their appurtenances, and to have, receive and take the rents, issues and profits thereof to and for his and their own proper use and benefit without any hindrance, suit, trouble, molestation, interruption, eviction, claim or demand whatsoever of or by the said C. D., his executors, administrators or assigns, or of any other person or persons claiming by, from or under him, them or any of them. AND the said A. B. for himself, his heirs, executors, and ad- ministrators, doth further covenant, promise and agree to and with the said C. D., his executors, administrators and assigns by these presents, that he the said A. B., his heirs, executors or administrators, shall and ■will from time to time and at all times hereafter so long as the said prin- cipal sum of 1, or any part thereof shall remain due and owing upon security of the said messuage or tenement, pieces or parcels of land, here- ditaments and premises hereinbefore mentioned, and intended to be hereby granted, bargained, sold and demised, insure and keep insured in some or one of the public offices for insurance against loss or damage by fire within the cities of London and Westminster or one of them, upon the same messuage or tenement, hereditaments and premises, as to fire or damage happening hereby, in the whole the sum of 1.; and that he the said A. B., his heirs, executors and administrators, at his and their expence, shall and will, immediately upon making or renewing every policy of such insurance, assign the same and the benefit thereof to the said C. D., his executors, administrators and assigns. And it is hereby agreed and declared between and by the said parties to these presents, that in case the said A. B., his heirs, executors or administrators, shall at any time during the continuance of the said security, refuse or neglect to insure the said sum of 1., or to make such assignment of the policy or policies so to be made or taken as aforesaid, that then and so often it shall and may be lawful to and for the said C. D., his executors, adminis- trators or assigns, in like manner to insure the said sum of /. or any less sum, and for such time as he or they shall think proper; and that all such policies of insurance so to be assigned, renewed, made or taken, shall be to the use of or in trust for the said C. D., his executors, administrators and assigns, for better securing to him and them the payment of the said sum of l.y and the interest to grow due for the same and subject APPENDIX. 471 thereto, in trust for the said A.. B., his heirs and assigns. And the said A. B. doth hereby declare and agree that the premium, costs and charges attending the making of such insurance by the said C. D., his executors, administrators or assigns, or which he or they shall pay, expend or be put unto in or about the receiving or recovering of the money thereby recoverable, shall stand charged upon the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore men- tioned, and intended to be hereby granted, bargained, sold and demised; and carry interest from the respective times of such payment thereof, after the rate of 51. for 100/= for a year. IN WITNESS, kc. No. VII. MORTGAGE of RENEWABLE LEASEHOLDS, (a) THIS INDENTURE made the 29th day of September, in the year of our Lord 1821, Between A. B. of, &c. of the one part, and C. D. of, &c. of the other part. Whereas by a certain indenture of lease, bearing date ou or about the 25th day of March, which was in the year of our Lord 1817, and made or expressed to be made between E. F. of, &c. of the one part, and the said A. B. of the other part. It is witnessed that, for the considerations therein mentioned, the said E. F. did lease and de- mise unto the said A. B., his executors, administrators and assigns, all, «&c. (insert the parcels) together Avith all and singular {insert the general words from the lease) To hold the same unto the said A. B., his execu- tors, administrators and assigns, from the day of the date of the said in- denture now in recital, for the term of twenty-one years, at the yearly rent of 41. payable half-yearly, as therein mentioned, and subject to the covenants and agreements therein contained, and on the lessee's or as- signee's part of the same premises to be kept and performed. And WHEREAS the said A. B., having occasion for the sum of 500/,, hath re- quested the said C. D. to lend and advance him the same, which he hath agreed to do upon having the repayment thereof, with interest, secured to him by a mortgage of the said pieces or parcels of land and premises, com- prized in and demised by the said hereinbefore in part recited indenture of lease in manner hereinafter mentioned. NOW THIS INDENTURE (a) Ante 94. 164, 472 APPENDIX. WITNESSETH, that in pursuance of the said agreement, and for and in consideration of the sum of 500/. of lawful money of Great Britain, by the said C. D. to the said A. B. in hand well and truly paid at or before the sealing and delivery of these presents; the receipt whereof he the said A. B. doth hereby acknowledge, and thereof and of and from the same, and every part thereof, doth acquit, release and discharge, the said C. D., his executors, administrators and assigns, and every of them for ever, by these presents. He the said A. B. Hath bargained, sold, assigned, transferred, and set over, And by these presents Doth bargain, sell, assign, transfer, and set over unto the said C. D., his executors, administrators and assigns, the said pieces or parcels of land, and all and singular other the premises mentioned, described and comprized in the said hereinbefore in part recited indenture of lease of the 25th day of March, 1817, and thereby demised or mentioned, and intended so to be, with their and every of their appurtenances, and all the estate, right, title, interest, term and terms for years yet to come and unexpired therein, trust, pos- session, property, possibility, benefit, claim, and demand whatsoever, as well legal as equitable, of him the said A. B. of, in, to or out of the same premises, every or any part or parcel thereof, TO HAVE AND TO HOLD the said pieces or parcels of land, and all and singular other the premises hereinbefore mentioned, and intended to be hereby assigned, with their and every of their appurtenances, unto the said C. D., his exe- cutors, administrators and assigns, henceforth for and during all the rest residue and remainder now to come and unexpired, of the said term of twenty-one years thereof, granted by the said hereinbefore in part re- cited indenture of lease, and for and during all the renewable and other the estate, term and interest of him, the said A. B. of and in the same premises, but subject nevertheless to the proviso or agreement for redemption thereof, hereinafter inserted and contained (that is to say) PROVIDED ALWAYS, and it is hereby agreed and declared, by and between the said parties to these presents, that if the said A. B., his heirs, executors or administrators, or any of them, shall, at or in the common dining-hall of Lincoln's Inn, in the county of Middlesex, well and truly pay or cause to be paid unto the said C. D., his executors, administra- tors or assigns, the sum of 5001. of lawful money of Great Britain, with interest for the same, after the rate of 5/. for every 100/. for a year, in manner following, (that is to say) the sum of 12/. 10s., being one half year's interest thereof, after the rate aforesaid, on the 29th day of March now next ensuing, and the sum of 512/. 10s. being the said principal money, and another half-year's interest thereof, after the rate aforesaid, upon the 29th day of September then next following, and which will be APPENDIX. 473 in the year of Lord 1822, without making any deduction, defalcation, or abatement thereout whatsoever, for or by reason or means of any taxes, charges, assessments, impositions, or other matter or thing whatsoever, already taxed, charged, assessed, or imposed, or which shall or may at any time or times hereafter be taxed, charged, assessed, or imposed upon the said pieces or parcels of land and premises hereinbefore mentioned, and intended to be hereby assigned, or any part thereof, or the occupiers thereof, or of any part thereof, or upon the said C. D., his executors, administrators or assigns, for or in respect thereof, or upon the said sum of 500/., or the interest thereof, or of any part thereof by authority of parliament, or otherwise howsoever, then and from thenceforth the said C. D., his executors, administrators or assigns, shall and will assign and assure the said pieces or parcels of land and premises hereinbefore men- tioned, and intended to be hereby assigned, with their and every of their appurtenances, unto the said A. B., his executors, administrators or as- signs, or as he or they shall direct or appoint, free from all incumbrances ID the mean time had, made, done, or committed by the said C. D., his executors, administrators or assigns, or any other person or persons law- fully claiming, or to claim, by, from or under, or in trust for him, them, or any of them. AND for the aforesaid consideration the said A. B. for himself, his heirs, executors and administrators, doth covenant, promise, declare, and agree to and with the said C. D., his executors, administra- tors and assigns, by these presents, in manner following, (that is to say) that he the said A. B., his executors, administrators or assigns, some or one of them, shall and will, at or in the common dinlng-hall of Lin- coln's Inn, in the county of Middlesex, well and truly pay, or cause to be paid, unto the said C. D,, his executors, administrators or assigns, the sum of 500/. of lawful money of Great Britain, with interest for the same, after the rate of 5l. for every 100/. for a year, in manner follow- ing (that is to say) the sum of 12/. 10^., being one half-year's interest thereof, after the rate aforesaid, on the 29th day of March now next en- suing, and the sum of 512/. 10s., being the said principal money, and another half-year's interest thereof, after the rate aforesaid, on the 29th day of September, then next following, and which will be in the year of our Lord 1822, without any deduction, defalcation or abatement for taxes, or otherwise howsoever. And further, that the said hereinbefore in part recited indenture of lease is a good and subsisting lease valid in the law, and not forfeited, surrendered or otherwise determined or be- come void or voidable. And that he the said A. B. now, at the time of the sealing and delivery of this indenture, hath irt himself good right, full power, and lawful and absolute authority by these presents, to bargain, 474 APPENDIX. sell, assign and assure the said pieces or parcels of land, and premises hereinbefore mentioned, and intended to be hereby assigned, with their and every of their appurtenances, unto the saidC. D., his executors, administra- tors and assigns, in manner aforesaid, according to the true intent and meaning of these presents. And further, that if default shall happen to be made of or in payment of the said sum of 500/. and the interest thereof or of any part of the same, unto the said C. D., his executors, administrators, or assigns, at the days and times and in manner herein- before appointed for payment thereof, contrary to the true intent and meaning of the said proviso and agreement hereinbefore for that purpose contained, then and from thenceforth it shall and may be lawful to and for the said C. D., his executors, administrators and assigns from time to time and at all times thereafter peaceably and quietly to enter into and upon, and to have, hold, use, occupy, possess and enjoy the said pieces or parcels of land and premises mentioned to be hereby assigned as afore- said, with their and every of their appurtenances, and to have, receive, and take the rents, issues and profits thereof, and of every part and par- cel thereof, to and for his and their own use and benefit, for and during all the rest, residue and remainder which shall be then to come and un- expired of the said term of twenty-one years, granted therein by the said hereinbefore in part recited indenture of lease, without the let, suit, hindrance, interruption, denial, claim, or demand whatsoever of or by the said A. B., his executors, administrators or assigns, or any of them, or any other person or persons whomseever. And that free and clear and freely and clearly acquitted, exonerated and discharged or otherwise by the said A. B., his heirs, executors or administrators, well and suffi- ciently saved, defended, kept harmless and indemnified, of from and against all former and other gifts, grants, bargains, sales, mortgages, assignments, rents, arrears of rent, statutes, judgments, recognizances, titles, charges and incumbrances whatsoever, (subject only to the rent, reservations, covenants and agreements by and in the said hereinbefore in part recited indenture of lease reserved and contained on the lessees' or tenants' part from thenceforth to grow due and be performed, fulfilled and kept.) And moreover that he the said A. B., his executors and ad- ministrators, and all and every other person and persons whomsoever, having or lawfully claiming, or who shall or may hereafter have or law- fully claim any estate, right, title, trust or interest at law or in equity, of in to or out of the said pieces or parcels of land and premises here- inbefore mentioned and intended to be hereby assigned as aforesaid, or any of them, or any part or parcel thereof, shall and will from time to time and at all times after default shall be made in payment of the said APPENDIX. 475 sum of 500/. or of the interest thereof, or of any part or parts of the same, unto the said C. D., his executors, administrators or assigns, con- trary to the true intent and meaning of the proviso and agreement herein- before for that purpose contained, upon the reasonable request of the said C. D., his executors, administrators or assigns, but at the proper costs and charges in the law of the said A. B., his executors or administrators, make, do and execute, or cause and procure to be made, done and exe- cuted, all and every such further and other lauful and reasonable act and acts, thing and things, assignments and assurances in the law whatsoever, for the further and better, more perfect and absolute assigning and assur- ing the said pieces or parcels of land and premises mentioned to be hereby assigned as aforesaid, with their and every of their appurtenances unto the said C. D., his executors, administrators, and assigns, for and during all the rest, residue and remainder which shall be then to come and unex- pired of the said term of twenty-one years therein granted by the said hereinbefore in part recited indenture of lease (subject only to the pay- ment of the rent and performance of the covenants and agreements by and in the said hereinbefore in part recited indenture of lease reserved and contained, and which thenceforth on the lessee's or assignee's part and behalf ought to be paid, done and performed) but freed and dis- charged from the proviso an4 condition hereinbefore contained, and all other powers, provisos, rights, equity and benefit of redemption Avhatso- ever, as by the said C. D., his executors, administrators or assigns, or his or their counsel learned in the law, shall be reasonably advised or required. AND it is hereby agreed and declared, by and between the said A. B. and C. D., that until default shall happen to be made of or in payment of the said sum of 500/. and interest hereby secured as aforesaid, or some part thereof, contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said A. B., his executors, admi- nistrators and assigns, to have, hold, use, occupy, possess and enjoy the said pieces or parcels of land and premises hereinbefore mentioned, and intended to he hereby assigned, with their and every of their appurte- nances, and to have, receive and take the rents, issues and profits thereof to his and their own proper use, and benefit, without the let, suit, trouble, molestation, interruption, eviction, claim or demand whatsoever, of or by the said C. D., his executors, administrators or assigns, or any other person or persons whomsoever, claiming or to claim, by from or under him them or any of them. AND the said A. B., for himself, his heirs, executors and ad- ministrators, doth hereby covenant, promise and agree to and with the said C D., his executors, administrators and assigns, that he the said A. B., his executors or administratorsj shall and will from time to time and at the 476 APPENDIX. usual times, so long as the said principal sum of 500/. or any part thereof, or the interest thereof or of any part thereof, shall remain due and owing to the said C. D,, his executors, administrators or assigns, upon security of the said premises hereinbefore mentioned and intended to be hereby assigned, cause and procure, or use his and their best endeavours to pro- cure, a new lease to be made and granted of the premises comprised in the said hereinbefore in part recited indenture of lease unto the said C. D., his executors, administrators or assigns, or unto such person or persons as he the said C. D., his executors, administrators or assigns, shall for that purpose nominate or appoint, for the term of twenty-one years, at and under the same yearly rent, and subject to the same covenants as are contained in the present subsisting lease of the same premises. And shall and will pay the fine and fines and all other charges and expenses incident to 6r attending every such renewal ; and that every such new lease so to be granted, and the premises therein comprised, shall stand and be a security for the payment to the said C. D., his executors, administrators or assigns, of the said principal sum of 500/., or so much thereof as shall for the time being remain unsatisfied and undischarged, with interest for the same after the rate of 5/. for 100/. for a year. Provided always, and it is hereby agreed and declared that in case such new lease or leases shall not from time to time be made or granted to or for the benefit of the said C. D., his executors, administrators or assigns, as hereinbefore is mentioned, at the usual times for that purpose, in that case, and from time to time as often as it shall so happen, it shall and may be lawful to and for the said C. D., his executors, administrators or assigns, to renew the said lease, and to take a new grant or lease of the same premises for the term of twenty-one years. And that all and singular the premises in ev6ry silch new lease to be comprised shall, immediately after the grant- irtg and executing the same, stand and be charged with, and be a security for the payment not only of the said principal sum of 500/. hereby se- ciii^d, or so much thereof as shall for the time being remain unsatisfied and undischarged, and all interest then due and thenceforth to grow due for the same, but also for the payment of such sum and sums of money as the said C. D., his executors, administrators or assigns, shall pay and disburse for the fine and fees of every such renewal, and the costs and charges incident to and attending the same respectively, with interest for such fine, fees, costs and charges respectively after the rate of 5/. for 100/. for a year, to commence and be computed from the respective times of advancing and paying the same respectively. And the said A. B,, his heirs, executors, administrators or assigns, shall not be admitted to a rederoptibn of the said premises until he or they shall have paid to the ArPENDix. 477 said C. D., his executors, administrators or assigns, what he or they shall pay for the fine, fees, costs and charges of every such renewal, with the interest for the same respectively, at and after the rate aforesaid, from the respective times of advancing and paying the same respectively, as well as the said principal sum of 500/., or so much thereof as for the time being shall remain unsatisfied and undischarged, and the interest for the same as aforesaid. IN WITNESS, &c. No. VIII. RELEASE IN FEE, upon trust to sell to secure monev. THIS INDENTURE made the day of , in the year.of our Lord , Between A. B., of, &c. of the one part, and C. D., of, Sec. of the other pact. WIIEHEAS the said A. B. is seised of or well enti- tled unto the inheritance in fee simple in possession of and in the messuages or tenements, pieces or parcels of land and hereditaments hereinafter mentioned, and intended to be hereby released, with the appurtenances, And whereas the said A. B. hath requested the said C. D, to lend and advance him the sum of 1, which he hath agreed to do upon having such security for the repayment of the same as is hereinafter contained. NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement, and for and in consideration of the sum of /. of law- ful money of Great Britain by the said C. D. to the said A. B. in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof he the said A. B. doth hereby acknowledge, and thereof and of and from the same and every part thereof doth acquit, release and discharge the said C. D., his heirs, executors and administra- tors, and every of them, for ever by these presents, He the said A. B. Hath granted, bargained, sold, aliened, released and confirmed, And by these presents Doth grant, bargain, sell, alien, release and confirm unto the said C. D. (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said A. B. for five shillings' consideration, by indenture bearing date the day next before the day of the date of these presents, for the term of a year, commencing from the day next before the day of the date of the same indenture of bargain and sale, and by force of the statute made for transferring uses into possession;) and to his m APPENDIX. heirs and assigns, ALL (here insert the parcels and general words) Ann the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits thereof. And all the estate, right, title, interest, use, trust, possession, property, possibility, claim and demand whatso- ever, both at law and in equity, of him the said A. B., of, in, to or out of the same premises every or any part or parcel thereof, TO HAVE AND TO HOLD the said messuages or tenements, pieces or parcels of land, hereditaments, and all and singular other the premises here- inbefore mentioned and intended to be hereby released, with the ap- purtenances, unto the said C. D., his heirs and assigns, to the use of the said C. D., his heirs and assigns, upon the trusts and to and for the intents and purposes hereinafter mentioned, expressed and declared of and concerning the same. AND it is hereby agreed and declared by and between the said parties to these presents that the said C. D,, his heirs and assigns, shall stand and be seised of and interested in the said messuages or tenements, pieces or parcels of land, hereditaments and premises hereinbefore mentioned and intended to be hereby released, with the appurtenances, upon trust that he the said C. D., his heirs and as- signs, do and shall permit and suffer the said A. B., his heirs and assigns, to enter into and to have, hold, use, occupy, possess and en- joy the same, and receive and take the yearly and other rents, issues and profits thereof, and of every part thereof to and for his and their own use and benefit, until the day of now next ensuing, And also upon trust if the said A. B., his heirs, executors, administrators or assigns, shall and do on the said day of now next ensuing? at, or in the common dinlng-hall of Lincoln's Inn, in the county of Mid- dlesex, well and truly pay or cause to be paid unto the said C. D., his executors, administrators or assigns, the sum of 1, of lawful money of Great Britain, with interest henceforth for the same after the rate of 5/. for 100/. for a year, without any deduction or abatement for taxes or otherwise howsoever, then that he the said C. D,, his heirs or assigns, shall and do upon such payment being made, or at any time afterwards at the request of the said A. B., his heirs or assigns, convey ai;d assure the said messuages or tenements, hereditaments and premises hereinbefore mentioned and intended to be hereby released with the appurtenances, unto and to the use of the said A. B., his heirs and assigns or unto such other person or persons as he or they shall direct or appoint, freed and discharged of and from all incumbrances made, done or committed by the said C. D., his heirs or assigns, in the mean time. But in case the said A. B., his heirs, executors, administrators and assigns, shall make default in payment of the said sum of 1, and interest for the same after the 2 APPERDIX. 419 rale aforesaid, or any part or parts thereof respectively, on the said day of now next ensuing. Then upon trust that he the said C. D., his heirs and assigns, shall immediately, upon such default being made, enter into and upon, and take possession of the said messuages or tene- ments, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, with the appurtenances, and do and shall sell and dispose of the same messuages or tenements, pieces or parcels of land, hereditaments and premises, either together or in parcels, and by public auction or private contract, or partly by public auction and partly by private contract, and with or without the consent or concurrence of the said A. B., his heirs or assigns, or any of them, unto any person or persons whomsoever, for the b?st price or prices in money that can or may be reasonably had or obtained for the same, and do and shall for that purpose enter into, make, and execute all necessary contracts with, and conveyances and assurances to the pur- chaser or purchasers thereof, or as he, she or they shall direct. And it IS in-KF-BY AfiUEF.D AND DECLARKD that the Said C. D., his heirs, executors, administrators and assigns, shall stand and be possessed of and interested in the monies to arise from the sale or sales of the said messuages or tene- ments, pieces or parcels of land, hereditaments and ])remises hereinbefore mentioned and intended to be hereby released, with the api)urtenances, and the rents, issues and profits thereof after the said C. D., his heirs or assigns, shall enter into the possession or receipt of the rents and pro- fits of the same premises, until the same shall be sold, upon the trusts and to and for the intents and purposes hereinafter mentioned, expressed and declared of and concerning the same (that is to say) Upon trust that he the said C. D., his heirs, executors, admit)istrators and assigns, do and shall, by with and out of the clear rents, issues and profits (if any) as also the money which shall arise by and from such sale or sales respec- tively, in the first place deduct and retain the costs charges and expenses of and attending the execution of the trusts hereby declared, and tiie money which they shall respectively disburse for the taxes and repairs of the said hereditaments and premises, or in or about any suit or suits at law or in equity, for obtaining possession of the said hereditaments and premises or any of them, or carrying the trusts hereof into execution, or enforcing the performance of any contract or contracts with any person or persons who shall agree to become the purchaser or purchasers of the said hereditaments and premises, or any of them ; And in the next place in payment, satisfaction, and discharge of the said sum of /. and all interest henceforth for the same, after the rale of bl. for 100/. for a year or 80 much and such part or parts of the same respectively as shall be 480 APPENDIX. then remaining due and unsatisfied, and do and shall pay the residue or surplus (if any) of the said trust-monies unto the said A. B., his executors, administrators and assigns. And it is hereby further agreed and declared by and between ail and every the said parties to these presents, that the receipt or receipts of the said C. D., his heirs, executors, administrators or assigns, shall from time to time be a good and sufficient discharge and good and sufficient discharges to the purchaser or purchasers of the said several premises so to be sold as aforesaid, or any of them, or any part or parts thereof, and to his, her, and their respective heirs, executors, administrators, and assigns, for so much of the purchase money as shall be therein acknowledged to be received, and that such purchaser or purchasers, his her or their heirs, executors, administrators, or assigns, shall not afterwards be answerable or accountable for any loss, misapplication, or non-appli- cation of such purchase money so received, or any part thereof. AND the said A. B. for himself, his heirs, executors, administrators, and assigns, and every of them, doth covenant, promise, and agree, to and ■with the said C. D., his heirs, executors, administrators, and assigns, re- spectively by these presents, in manner following, (that is to say) that he the said A. B., his heirs, executors, administrators, or assigns, or some or one of them, shall and will at or in the common dining-hall of Lincoln's Inn, in the county of Middlesex, well and truly pay, or cause to be paid unto the said C. D., his executors, administrators, or assigns, the sum of 1, of lawful money of Great Britain, with interest henceforth for the same, after the rate of 5L for every 100/. for a year, on the day of ) now next ensuing, without any deduction or abatement for taxes or otherwise howsoever. AND ALSO that he the said A. B. now at the time of the sealing and delivery of these presents, is and standeth law- fully, rightfully, and absolutely seised of and in all and singular the said messuages or tenements, pieces or parcels of land, hereditaments and premises hereinbefore mentioned, and intended to be hereby released, with their and every of their appurtenances, of and for a good, sure, perfect, absolute and indefeasible inheritance in fee simple in possession, without any manner of condition, trust, power of revocation, remainder, or limitation of any use or uses, or other restraint, cause, matter or thing whatsoever, to alter, change, charge, defeat, revoke, make void, lessen, or incumber the same. And also that he the said A. B. now hath in himself good right, full power, and lawful and absolute authority by these presents, to release, convey, and assure, all and singular the said messuages or tenements, pieces or parcels of land, hereditaments and pre- mises hereinbefore mentioned, and intended to be hereby released, and \ APPENDIX. 481 every part and parcel ^hereof, with their and every of their appur- tenances, unto and to the use of the said C. D., his heirs and assigns for evef, in manner and form aforesaid, and according to the true intent and meaning of these presents. And further, that it shall and may be lawful to and for the said C. D., his heirs and assigns, in the mean time after the said messuages or tenements, pieces or parcels of land, heredita- ments, and premises hereinbefore mentioned, and intended to be hereby released, shall become saleable until the same shall be sold, and from and after such sale or sales shall be made and perfected as aforesaid, to and for the purchaser or purchasers of the same several hereditaments and premises, and his her and their respective heirs and assigns, peaceably and quietly to have, hold and enjoy the said messuages or tenements, pieces or parcels of land, hereditaments, and premises hereinbefore men- tioned, and intended to be hereby released, with their and every of their appurtenances, and the rents, issues, and profits thereof, to receive and take unto him the said C. D. upon the trusts aforesaid, and unto such purchaser or purchasers, his her and their heirs and assigns, to his her and their own use and benefit, without any lawful let, suit, trouble hindrance, eviction, expulsion or interruption, of or by the said A. B., his heirs or assigns, or any other person or persons whomsoever. And that free and clear and freely and clearly acquitted, exonerated and dis- charged, or otherwise, by the said A. B., his heirs, executors, administra- tors and assigns, or some or one of them, from time to time and at all times hereafter, well and sufficiently saved, defended, kept harmless and indemnified, of from and against all and all manner of former and other gifts, grants, bargains, sales, leases, mortgages, jointures, dowers, right and title of dower, uses, trusts, wills, intails, statutes, recognizances, judgments, extents, executions, rents, arrears of rent, annuities, estates, titles, troubles, charges, and incumbrances whatsoever, had, made, done, committed or sufl'ered, or to be had, made, done, committed or suflered by him the said A. B., his heirs or assigns, or any other person or persons whomsoever. And moreover that he the said A. B. and his heirs, and all and every other person and persons whomsoever, having or lawfully claiming, or who shall or may at any time hereafter have or lawfully claim any estate, right, title, trust or interest, of in, to, or out of the said messuages or tenements, pieces or parcels of land, hereditaments and premises, hereinbefore mentioned, and intended to be hereby released, or any part or parcel thereof, shall aud will from time to time aud at all times hereafter, at and upon the reasonable request of the said C. D., his heirs, executors, administrators or assigns, but at the costs and charges 2l 482 APPENDIX. in the law of the said A. B., his heirs or assigns, until a sale or sales shall be made of t!ie said messuages or tenements, pieces or parcels of land, hereditaments and premises, hereinbefore mentioned, and intended to be hereby released, and from and after such sale or sales, at the request, costs, and charges of the said purchaser or purchasers of the same here- ditaments and premises, his her or their heirs or assigns, make, do, ac- knowledge, levy, sufl'er and execute, or cause and procure to be made, done, acknowledged, levied, suffered and executed, all and every such further and other lawful and reasonable act and acts, thing and things, deeds, devises, conveyances and assurances in the law whatsoever, for the further, better, more perfect and absolute granting, releasing, assuring and confirming all and singular the said messuages or tenements, pieces or parcels of land, hereditaments and premises, hereinbefore mentioned, and intended to be hereby released, with their and every of their appur- tenances, unto and to the use of the said C. D., his heirs and assigns, upon the trusts and to and for the intents and purposes hereinbefore mentioned, expressed and declared, of and concerning the same, until such sale or sales as aforesaid ; and from and after such sale or sales, unto and to the use of the purchaser or purchasers of the same hereditaments and premises, his her or their heirs and assigns, as by the person or per- sons requesting any such further assurance or assurances to be made, his her their or any of their counsel learned in the law, shall be lawfully and reasonably devised or advised and required. And moreover, that he the said A. B., his heirs, executors, administrators and assigns, shall and will join and concur in the making of any sale, to be made or pro- posed to be made by the said C. D., his heirs or assigns, under or by virtue of the trusts hereinbefore contained, and in executing the several conveyances and assurances of the said messuages or tenements, pieces or parcels of land, hereditaments and premises, to the purchaser or pur- chasers thereof, or of any of them, and enter into all usual and reason- able covenants with such purchaser and purchasers, his her and their heirs and assigns, for the estate, title, possession and further assurance of the said premises, or such of them as shall be so sold, or do any other reasonable act or acts for confirming such sale or sales. Nevertheless it is hereby agreed and declared that the joining of the said A. B., his heirs, executors, administrators or assigns, in any such sale or sales, conveyance or conveyances as aforesaid, shall not in any wise be deemed or con- sidered as essential or necessary to perfect the title of the purchaser or purchasers of the said hereditaments and premises, or any part thereof, the same being intended only for the further satisfaction of such pur- chaser or purchasers. IN WITNESS, &c. ArpDNDiv. 483 No. IX. ASSIGNMENT of a TERM on a MORTGAGE. THIS INDENTURE made the day of in the year of our Lord 18 Between E. F. of, &c. of the first part, A. B. of, &c. of the second part, C. D. of, &c. of the third part, and G. II. of, &c. of the fourth part. Whereas by a certain Indenture of Mortgage bearing date on or about the day of which was in the year of our Lord and made or expressed to be made between I. K. of, &c. of the one part, and L. M. of, &c. of the other part. It is avitnessed, that for the considerations therein mentioned, the said I. K. did demise, grant, bar- gain and sell, unto the said L. M., his executors, administrators and as- signs, the messuage or tenement, pieces or parcels of land and heredita- ments hereinafter mentioned and described, To hold the same uiito the said L. M., his executors, administrators and assigns thenceforth for the term of 1000 years, at a peppercorn rent, subject nevertheless to a proviso or agreement therein contained, for redemption of the said premises, on payment by the said I. K., his heirs, executors, administrators or assigns, to the said L. M., his executors, administrators or assigns, of the sum of /. and interest, after the rate at the times and in manner therein mentioned, which money was not paid accordingly. Axd avhekeas by divers mesne assignments or otherwise the said premises comprised in the said term of 1000 years have become vested in the said E. P. for the re- sidue of the same term upon trust to attend the inheritance. And WHEREAS by Indentures of Lease and Release, the Lease bearing date the day next before the day of the date of the Release, and the Release bearing even date with these presents, and made or expressed to be made between the said A. B. and E. his wife, of the one part, and the said C. D. of the other part, the inheritance in fee simple of and in All, &c. (describe the parcels) being the premises comprised in the said term of 1000 years, hath for the considerations therein mentioned been con- veyed and assured unto and to the use of the said C. D., his heirs and assigns for ever, subject nevertheless to a proviso or agreement therein contained, for redemption of the said premises, on payment by the said A. B., his heirs, executors or adniinistrators, to the said C. D,, his cxe- 2i 2 484 APPENDIX. cutors, administrators or assigns, of the sum of 1. with interest for the same, after the rate at the times and in manner therein mentioned. And whereas it hath been agreed that the said messuage or tenement, pieces or parcels of land, hereditaments and premises, so conveyed and assured unto and to the use of the said C. D., his heirs and assigns for ever, as aforesaid, shall be assigned by the said E. F. unto the said G. IL, his executors, administrators and assigns, for all the residue and re- mainder of the said term of 1000 years, now to come and unexpired therein, upon trust for the said C. D., his executors, administrators and assigns, and to attend the freehold and inheritance of the same premises in manner hereinafter mentioned. NOW THIS INDENTURE WIT- NESSETH, that in pursuance of the said agreement, and for and in con- sideration of the sum of 10*. of lawful money of Great Britain by the said G. H. to the said E. F. in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged. He the said E. F. at the request and by the direction of the said A. B., and at the nomination and appointment of the said C. D. testified by their severally being parties to and respectively executing these presents, Hath bargained, sold, assigned, transferred and set over. And by these presents Doth bargain, sell, assign, transfer and set over unto the said G. H., his executors, administrators and assigns. The said messuage or tenement, pieces or parcels of land, hereditaments, and all and singular other the premises in and by the said recited indentures of lease and release conveyed and assured unto and to the use of the said C. D., his heirs and assigns for ever, as aforesaid, with the appurtenances. And all the estate, right, title, interest, term and terras for years yet to come and unexpired, trust, possession, property, possibility, claim and demand whatsoever, both at law and in equity, of him the said E. F. of in to or out of the same premises, every or any part thereof, TO HAVE AND TO HOLD the said messuage or tenement, pieces or parcels of land, hereditaments, and all and singular other the premises hereinbefore mentioned, and intended to be hereby assigned, with the appurtenances, unto the said G. H., his executors, administrators and assigns, henceforth for and during all the rest, residue and remainder of the said term of 1000 years yet to come and unexpired therein, In Trust, nevertheless for the said C. D., his executors, administrators and assigns, for better se- curing to him and them the payment of the said sum of /. with in- terest for the same, after the rate at the times and in manner in the said hereinbefore in part recited indentures of lease and release mentioned and appointed for payment of the same, and from and after payment of the said sum of 1, and interest, and subject in the mean time thereto, APPENDIX. 485 In Trust for the said A. B., his heirs and assigns, to be disposed of as he or they shall direct or appoint, and in the mean time to attend the rever- sion, freehold and inheritance of the same premises, in order to protect the same from all mesne charges and incumbrances (if any such there be.) AND the said E. F. doth hereby for himself, his heirs, executors and ad- ministrators, covenant and declare to and with the said G. IL, his execu- tors, administrators and assigns, that he the said E. F. hath not done or committed or wittingly or willingly suffered to be done, or been party or privy to the doing of any act, matter or thing whatsoever, whereby, ■wherewith or by reason or means whereof the said messuage or tenement, pieces or parcels of land, hereditaments and premises hereinbefore men- tioned, and intended to be hereby assigned, or the said term of 1000 years, therein, or any part thereof respectively, are, is, can, shall or may be surrendered, forfeited, avoided, impeached, charged, assigned, incum- bered or affected in title, estate or otherwise howsoever. IN WIT- NESS, &c. No. X. APPOINTMENT of a RECEIVER for a MORTGAGE. («) THIS INDENTURE made the 28th day of September, in the year of our Lord 1821, Between C. D. of, &c. of the first part, A. B. of, Sec. of the second part, and E. F. of, &c. of the third part. Whereas by in- dentures of lease and release, the lease bearing date the day next before the day of the date of the release, and the release bearing even date with these presents, and made or expressed to be made between the said A. B. and E. his wife, of the one part, and the said C. D. of the other part, for the considerations therein mentioned, the said A. B. hath granted, bar- gained, sold, aliened, released and confirmed unto the said C D., his heirs and assigns, All, «&c. (describe the parcels) To hold the same, with their and every of their appurtenances, unto and to the use of the said C. D., his heirs and assigns for ever, but subject nevertheless to a proviso or agreement in the said indenture now in recital, contained for redemption of the said premises, on payment by the said A. B., his heirs, executors, administrators or assigns, unto the said C. D., his executors, administrators (a.) Aute U9. and sec Addenda to p. 82. 1. 9. 486 APPENDIX. or assigns, of the sum of /. with interest for the same, after the rate at the times and in manner therein mentioned. And whereas upon the treaty for the loan of the said sum of 1.^ it was proposed and agreed by and between the said A. B. and C. D. that for securing the punctual and regular payment of the interest thereof, as it should become due, a receiver should from time to time be appointed for collecting and re- ceiving the rents and profits of the said messuage or tenement, pieces or parcels of land, hereditaments and premises comprised in the said recited indenture of release and mortgage, and that the said E. F. party hereto should be the first receiver thereof. NOW THEREFORE THIS IN- DENTURE WITNESSETH, that in pursuance of the said agreement, and for securing the punctual and regular payment of the interest of the said sum of 1, from time to time as the same shall become due, he the said C. D. and also the said A. B. at the nomination, and by and with the consent and approbation of the said C. D. testified by his being a party to and sealing and delivering these presents. Have and each of them Hath made, ordained, constituted and appointed, And by these presents Do and each of them Doth make, ordain, constitute and ap- point the said E. F. their receiver, agent and attorney from time to time to get in and receive all and every the rents, issues and profits of all and singular the said messuage or tenement, pieces or parcels of land, heredi- taments and premises, so mortgaged to the said C. D. as aforesaid, of and from the several and respective tenants and lessees thereof, when and as the same shall from henceforth become due and payable, and upon pay- ment thereof or of any part thereof to make and give proper acquittances and discharges for the same ; and in case of non>payment thereof, or of any part thereof, to take such lawful remedies by action, suit, distress or otherwise for the recovery of the same as shall be requisite or necessary in that behalf, and to do, perform and execute all other acts, matters or things needful and necessary for collecting, receiving and getting in the same rents and profits, and every part thereof. AND it is hereby de- clared and agreed by and between the said parties to these presents, that all and every the rents, issues and profits which shall be received by the said E. F. in pursuance of these presents, shall be applied and disposed of upon the trusts, and to and for the ends, intents and purposes herein- after expressed and declared (that is to say) Upon Trust that he the said E. F. shall and do from time to time in the first place pay and satisfy unto the said C. D., his executors, administrators and assigns, all in- terest from time to time to grow due for the said sum of 1, or any part thereof, at such time, and in such manner as in and by the said re- cited indenture of release and mortgage is and are mentioned and ap- APPENDIX. 487 pointed for that purpose, and shall and do in the next place render and pay over unto the said A. B., his heirs and assigns, or such other person or persons as shall be entitled thereto, all the clear residue of the rents, issues and profits of the said premises, so to be collected and received as aforesaid, over and above w^hat shall from time to time be paid and ap- plied in satisfaction of such interest as aforesaid, and the necessary charges and expences of him the said E. F. in collecting, receiving, pay- ing or remitting such rents, issues and profits as aforesaid. AND the said E. F. for himself, his heirs, executors and administrators, doth hereby covenant, promise and agree to and with the said C. D., his executors, administrators and assigns, and also to and with the said A. B., his heirs, executors, administrators and assigns, that he the said E. F. shall and will during so long time as the said sum of 1, or any part thereof shall continue charged and secured upon the said premises as aforesaid, and as he shall continue collector and receiver of the rents and profits thereof, duly and punctually pay and apply or cause or procure to be paid and applied upon the trusts, and for the ends, intents and purposes aforesaid, all such sum and sums of money as shall from time to time be received or collected by him the said E. F. or any other person or per- sons by his appointment by virtue of or under this present authority. AND the said A. B. for himself, his heirs, executors and administrators, doth covenant, promise and agree to and with the said C. D., his execu- tors, administrators and assigns, by these presents, in manner following, (that is to say) that he the said A. B., his heirs or assigns, shall not, nor will at any time hereafter, without the consent of the said C. D., his exe- cutors, administrators or assigns first had and obtained for that purpose in writing under his or their hand and seal or hands and seals, revoke, alter or make void the powers or authorities hereby given to the said E.: F., nor do commit or suffer or cause to be committed or suffered any act, matter or thing whereby the powers and authorities hereby given or any of thera may become void, or the said E, F. or any future receiver to be appointed, as hereinafter is mentioned, may be obstructed or interrupted in or prevented from collecting or receiving the rents, issues and profits of the said premises upon the trusts and for the purposes aforesaid, dur- ing such time as the said sum of 1., or any part thereof, shall be' owing and unpaid. And further, that if the said E. F. shall happen to die, or shall be rendered incapable to collect and receive the rents, issues and profits of the said premises, or shall neglect or refuse to act or proceed therein in manner aforesaid, during such time as the said principal sum of 1, or any part thereof or any interest for the same shall be owing or unpaid, or shall otherwise misbehave himself in relation to the 488 APPENDIX. trusts hereby in him reposed, then and in any of the said cases he the said A. B., his heirs and assigns, shall and will join and concur with the said C. D., his heirs, executors, administrators and assigns, in removing the said E. F. from the said office or employment, and in constituting and appoint- ing some other person or persons to receive, collect and manage the rents and premises upon the trusts aforesaid, and so from time to time as often as any of the like cases shall happen until the said principal sum of 1., and all interest for the same, shall be paid and satisfied. And also that in case he the said A. B., his heirs or assigns, shall refuse or neglect in any of the cases beforementioned to join with the said C. D., his executors, ad- ministrators or assigns, in constituting or appointing some other fit person or persons to receive and collect the rents and profits aforesaid, or any part thereof, then and in such case and from time to time as often as it shall so happen it shall and may be lawful to and for the said C. D., his ex- ecutors, administrators or assigns, without the said A. B. his heirs or assigns, to constitute and appoint some fit person or persons to receive, collect and manage the said rents, issues and profits upon the trusts and for the purposes aforesaid. AND it is hereby declared and agreed by and between all the said parties to these presents, and particularly the said A. B. doth hereby declare and agree that the said C. D., his heirs, ex- ecutors, administrators or assigns, shall not be charged or chargeable with or accountable for any loss or misapplication of the rents and profits aris- ing and to be received from or out of the said messuage or tenement, pieces or parcels of land, hereditaments and premises, or any part thereof, by reason or means of any neglect, default or breach of trust in the said E. F., or any future collector or receiver of the same rents, issues and profits, or by any other means or occasion whatsoever, but that such loss and misapplication shall be wholly sustained and made good by the said A. B., his heirs, executors or administrators; And it is hereby further agreed and declared by and between all the said parties to these presents, that the said E. F. shall not be answerable or accountable for any sum or sums of money other than and except only such as he shall actually receive. And that it shall and may be lawful to and for the said E F., so long as he shall continue collector and receiver of the rents, issues and profits of the said premises, after paying unto the said C D., his ex- ecutors, administrators or assigns, all interest that shall grow due to him or them in respect of the said sum of /. as aforesaid, to retain and take to his own use all such costs, charges and expences, as he shall ne- cessarily sustain or be put unto in collecting the said rents and profits of the said premises, and in executing, doing and performing the severaj .other trusts, matters and things hereinbef re contained as aforesaid.. 2 APPENDIX, 489 PROVIDE D ALWAYS, and it is hereby also agreed and declared by and between the said parties to these presents, that in case there shall not at any time hereafter during so long time as the said sum of 1, or any part thereof shall remain due and owing to the said C. D., his executors, ad- ministrators or assigns, upon or by virtue of the said in part recited mort- gage security be six months' interest in arrear and unpaid to the said C. D., his executors, administrators or assigns, then and in such case it shall and may be lawful to and for the said A. B., or such other person or persons as he shall from time to time authorize and appoint to collect and receive the rents and profits of the said messuage or tenement, pieces or parcels of land, hereditaments and premises, without the lawful let, suit, trouble, interruption, disturbance, claim or demand of the said E. F., or such fu- ture or other person or persons as shall in pursuance of the provisos or covenants hereinbefore contained be appointed to receive the rents and profits for the intents and purposes hereinbefore mentioned, it being the true intent and meaning of the said A. B. and C. D. respectively that the said E. F. and every future receiver so to be appointed as aforesaid shall only from time to time enter and receive the said rents and profits when and so often as six months' interest shall be in arrear and unpaid to the said C. D., his executors, administrators and assigns, for or in respect of the said sum of /?., or so much thereof as shall remain due or owiug to him or them upon or by virtue of the said in part recited mortgage-se- curity so bearing equal date herewith as aforesaid. — IN WITNESS, &c. No. XI. Deed of further charge on a Mortgage making Interest Principal, and securing a further advance. THIS INDENTURE, made, &c. Between the within-named A. B. of the one part, and the within-named C. D. of the other part. Whereas the principal sum of 1, secured to the said C. D. by the within-written indenture still remains due and owing to him upon or by virtue of the same indenture, and there is now due and owing to the said C. D. for the interest of the said principal sum the sum of /. And WHEREAS the said A. B. hath requested the said C. D. to lend and advance hjm the further sum of 1, which he hath agreed io do upon having 490 APPENDIX. the repayment thereof together with interest secured to him by a further charge upon the hereditaments comprised in the within written indenture. And it hath also been agreed between the said parties hereto, that the said sum of 1, so due and owing for arrears of interest as aforesaid shall be considered as principal money and carry interest after the rate of 51. for lOOl. for a year, and be secured in like manner by a further charge upon the said hereditaments. NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement, and for and in consideration of the sum of /. of lawful money of Great Britain by the said C. D. to the said A. B. in hand well and truly paid, at or before the sealing and delivery of these presents, the receipt whereof he the said A. B. doth hereby acknowledge, and thereof and of and from the same and every part thereof doth acquit, release and discharge the said CD., his heirs, executors, administrators and assigns, and every of them for ever, by these presents, and for securing the repayment of the said sum of 1. as well as of the said sum of /. so due and owing for arrears of inte- rest as aforesaid, making together the sum of /. with Interest, he the said A. B. doth hereby for himself, his heirs, executors, administrators and assigns, covenant, promise and agree to and with the said C. D., his executors, administrators and assigns. That the messuages or tenements, lands and hereditaments, and all and singular other the premises mentioned and comprised in the within-written indenture, and thereby granted and conveyed in mortgage unto and to the use of the said C. D., his heirs and assigns, as therein mentioned, and every part and parcel thereof, with their and every of their rights, members and appurtenances, shall hence- forth stand and be a security for and charged and chargeable with as well the payment of the said sum of L (amount of money advanced and arrears of interest) with interest henceforth for the same after the rate of bl. for 100^. for a year, from the day of the date of these presents, as with the payment of the said sum of 1, (money secured by the mort- gage) with interest for the same after the rate aforesaid. And that he the said A. B,, his heirs, executors, administrators or assigns, shall not redeem or endeavour to redeem the said mortgaged premises or any part thereof until payment as well of the said sum of 1, (amount of money advanced and arrears of interest) and interest after the rate aforesaid, as of the said sum of 1, (money secured hy the mortgage) with the in- terest henceforth to grow due for the same as aforesaid. And the said A. B., for himself, his heirs, executors, administrators and assigns doth further covenant, promise and agree to and with the said C. D., his exe- cutors, administrators and assigns, by these presents, that he the said A.B., his heirs, executors, administrators or assigns, shall and will upon demand APPENDIX. 491 well and truly pay or cause to be paid unto the said C. D., his executors, administrators or assigns, the said sum of 1, (^amount of money ad- vanced and arrears of interest) with interest henceforth for the same after the rate of 5/. for 100^. for a year, without any deduction or abate- ment out of the same or any part thereof, for or in respect of any taxes, charges or assessments, taxed, charged, assessed or imposed, or to be taxed, charged, assessed or imposed upon the said premises or any part thereof, or upon the said sum of 1, and interest or any part thereof, or upon the said C. D., his heirs, executors, administrators or assigns in respect thereof, by authority of parliament or otherwise howsoever. 11^ WITNESS, &c. No. XII. ASSIGNMENT of a MORTGAGE. («) THIS INDENTURE, made, &c. Between C. D., of, kc. of the first part, E. F., of &c. of the second part, and A. B., of, kc. of the tliird part. Wherkas by indentures of lease and release bearing date respectively the and days of , which was in the year of our Lord . The release being made or expressed to be made between the said A. B. of the one part, and the said C. D. of the other part : It is Witnessed that for the considerations therein mentioned the said A. B. did grant, bargain, sell, alien, release and confirm unto the said CD., his heirs and assigns. All, &c. (^describe the parcels) To Hold the same, with their and every of their appurtenances, unto and to the use of the said C. D., his heirs and assigns for ever, but subject nevertheless to a proviso or agreement in the said indenture now in recital contained for redemption of the said premises on payment by the said A. B., his heirs, executors, administrators, or assigns, unto the said C. D., his executors, administrators or assigns, of the sum of 1, with interest for the same after the rate, at the times and in manner therein mentioned, which money was not paid accordingly. And whereas there is now due and owing to the said C. D. upon his said recited mortgage-security, the said principal sum of 1, together with interest for the same from the days of ■ now last past, as he the said A. B. doth hereby ac- knowledge. And wiiereAs the said C. D. hath contracted and agreed (o (a) Ante, p. 128, l-iO, 130. 493 APPENDIX. and with the said E. F. for the assignment or transfer to him of the said sum of 1, and interest from the day of now last past, and the said recited mortgage-security at or for the price or sum of i. NOW THIS INDENTURE WITNESSETH, that in pursuance of the said agreement, and for and in consideration of the sum of 1, of law- ful money of Great Britain by the said E. F. to the said C. D. in hand well and truly paid at or before the sealing and delivery of these presents, the receipt whereof he the said C. D. doth hereby acknowledge, and thereof and of and from the same and every part thereof doth acquit, release and discharge the said E. F., his executors, administrators and assigns, and every of them for ever by these presents, He the said C. D,, with the privity of the said A. B., testified by his being a party to and executing these presents. Hath bargained, sold, aliened, released and confirmed. And by these presents Doth bargain, sell, alien, release and con- firm unto the said E. F., (in his actual possession now being by virtue of a bargain and sale to him thereof made by the said C D. for five shillings' consideration, by indenture bearing date the day next before the day of the date of these presents for the term of a year commencing from the day next before the day of the date of the same indenture of bargain and sale, and by force of the statute made for transferring uses into possession,) and to his heirs and assigns The said • hereditaments and all and sin- gular other the premises mentioned, described and comprised in the said hereinbefore in part recited indenture of release and mortgage of the — — — — day of and thereby released or mentioned and in- tended so to be, with their and every of their appurtenances, And all the estate, right, title, interest, use, trust, possession, property, possibility, claim and demand whatsoever both at law and in equity of him the said C. D. of in to or out of the same premises, every or any part or parcel thereof. Together with the said recited indentures of lease and release and mortgage, and all other deeds, evidences and writings relating to the said premises in the possession of the said C. D. To have and to hold the said hereditaments and premises hereinbefore mentioned and intended to be hereby released with their appurtenances unto the said E. F., his heirs and assigns, to the use of the said E. F., his heirs and as- signs for ever, but subject nevertheless to such right and equity of re- demption as is now subsisting of or concerning the same premises under or by virtue of the said hereinbefore in part recited indenture of release and mortgage of the day of . AND THIS IN- DENTURE FURTHER WITNESSETH, that in further pursuance of the said agreement and for the consideration aforesaid He the said C. D., with the privity of the said A. B. testified by his being a party to and APPENDIX. 495 executing these presents, Hath bargained, sold, assigned, transferred and set over. And by these presents Doth bargain, sell, assign, transfer and set over unto the said E.F., his executors, administrators and assi-^ns the said principal sum of /. secured by the said hereinbefore in part re- cited indenture of release and mortgage, and all interest ^ow due and henceforth to become due for the same, and all bonds, covenants and other securities for the same principal sum and interest; TO HAVE, HOLD RECEIVE, TAKE AND ENJOY the Said principal sum of 1, and interest bonds, covenants and other securities hereinbefore mentioned and in- tended to be hereby assigned unto the said E. F., his executors, adminis- trators and assigns, to and for his and their own absolute use and benefit. AND for the better effectuating the purposes aforesaid, He the said C. D. Hath nominated, constituted and appointed, And by these presents Doth nominate, constitute and appoint the said E. F., his executors, adminis- trators and assigns, his true and lawful attorney and attornies for him and in his name, or in the name or names of the said E. F., his executors, ad- ministrators or assigns, or otherwise to ask, demand, sue for, recover and receive of and from all and every person or persons liable or entrusted to pay the same the said principal sum of /. and interest hereinbefore mentioned and intended to be hereby assigned, and to give acquittances or to make and execute any other release or discharge for the same, and further to do and execute all other acts and things whatsoever which shall be necessary or expedient to be done in or about the premises as fully and effectually to all intents and purposes as he the said C. D. might or could do if personally present. AND the said C. D. for himself, his heirs, ex- ecutors and administrators, doth covenant and declare to and with the said E. F., his heirs, executors, administrators and assigns, by these pre- sents, that he the said C. D. hath not done or committed, or wittingly or willingly permitted or suffered to be done, or been party or privy to the doing of any act, deed, matter or thing whatsoever whereby wherewith or by reason or means whereof the said several premises hereinbefore mentioned and intended to be hereby released and assigned, or any part or parts thereof, respectively are is can shall or may be assigned, released, charged, impeached, incumbered or affected in title, estate or otherwise howsoever.— IN WITNESS, &c. 491 APPENDIX. No. XIII. RELEASE OF AN EQUITY of REDEMPTION. («) By a Mortgagor to the Mortgagee. THIS INDENTURE, made, &c. 1821, between A. B. of, &c. of the one part and C. D., of, kc. of the other part. WHEREAS by certain indentures of lease and release and mortgage, bearing date respectively the and days of • which was in the year of our Lord 1820, the release being made or expressed to be made between the said A. B. of the one part, and the said C. D. of the othet part. It is Witnessed that for the considerations therein mentioned the said A. B. did grant, bargain, sell, alien, release and confirm unto the said C. D., his heirs and assigns, all, &c. (describe the parcels) To Hold the same with their and every of their appurtenances unto and to the use of the said C. D., his heirs and assigns, for ever; But subject nevertheless to a pro- viso or agreement in the said indenture now in recital contained for re- demption of the said premises on payment by the said A. B., his heirs, ex- ecutors, administrators or assigns, unto the said C. D., his executors, ad- minlstrators or assigns, of the sum of L, together with interest for the same after the rate at the times and in manner therein mentioned, which money was not paid accordingly. And whereas there is now due and owing unto the said C. D. upon the said hereinbefore in part recited indenture of release and mortgage the sum of 1, only, but all interest for the same hath been paid off and discharged up to the day of the date of these presents, as he the said C. D. doth hereby acknowledge and ad- mit. And whereas the said C. D. hath contracted and agreed with the said A. B. for the absolute purchase of all right, power or equity of re- demption which he the said A. B. now hath or can claim of in or to the said hereditaments and premises hereinbefore mentioned and described and comprised in the said hereinbefore in part recited indenture of release and mortgage of the day of 1820, at or for the price or sum of /. (b) NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement, and for and in consideration of the sum of 1, of lawful money of Great Britain by the said C. D, to the (a) Ante, p. 117. (*) Ante, p. 1S3. APPENDIX. 41)5 said A. B. in hand well and truly paid at or before the sealing and do- livery of these presents, the receipt whereof he the said A. B. doth hereby acknowledge, and that the same is in full for the purchase of all right, power or equity of redemption which he the said A. B. now hath or can claim of in or to the said hereditaments atifl premises, hereinbefore mentioned and described, and comprised in the said herein- before in part recited indenture of release and mortgage of the day of , 1820, and thereof and of and from the same and every part thereof, doth acquit, release and discharge the said C. D., his heirs, executors, administrators and assigns, and every of them, for ever by these presents ; and for extinguishing all right, power and equity of re- demption whatsoever of and in the said mortgaged premises. He the said A. B. Hath granted, remised, released, extinguished, quit claimed and confirmed ; And by these presents Doth grant, remise, release, extin- guish, quit claim and confirm unto the said C. D,, his heirs and assigns, forever, All those the said ^ hereditaments and premises herein- before mentioned and described, and comprised in the said hereinbefore in part recited indenture of release and mortgage of the — — day of — — — , 1820, and thereby released or mentioned and intended so to be, with their and every of their rights, members and appurtenances ; And the reversion and reversions, remainder and remainders, yearly and other rents, issues and profits thereof ; And all the estate, right, title, interest, use, trust, possession, property, possibility, claim and demand whatsoever, both at law and in equity, of him the said A. B., of in to or out of the same premise?, every or any part or parcel thereof. TO HAVE AND TO HOLD the said hereditaments and premises hereinbefore mentioned and described, and intended to be hereby granted and re- leased, with the appurtenances, unto the said C. D., his heirs and as- signs, to the only proper use and behoof of the said C. D., his heirs and assigns, for ever, absolutely foreclosed and debarred of and from the proviso or agreement hereinbefore mentioned to have been contained in the said hereinbefore in part recited indenture of release and mort- gage, and of and from all right, power or equity of redemption, by virtue or colour thereof or otherwise howsoever. — (Usual covenants for title.)— IN WITNESS, &c. 496 APPENDIX, No. XIV. Notice by a Mortgagee not to pay Rent to the Mortgagor. Sir, Take notice that by indentures of lease and release, bearing date respectively the and days of 18 — the release being made between A. B., of, &c. and E. his wife, of the one part, and C. D., of, &c. of the other part, the messuage or dwelling house, lands and premises now in your occupation, situate and being in the parish of , in the county of , were conveyed and assured to the said C. D., for securing the payment of the sum of L and interest by the said A. B. to the said C. D. at a certain time in the said indenture of release mentioned, and now past, and which said sum of 1, with a considerable arrear of interest thereon, is still due and unpaid to the said C. D., I do therefore, as the attorney of and for the said C. D., hereby give you notice not to pay any rent now due or here- after to become due from you for the said messuage or dwelling house, land and premises, to the said A. B., or to any other person or persons than to the said C. D., or to me as his attorney, or to such other person or persons as shall be duly authorized by him to receive the same. Dated the day of , 18—. Yours, &c. E. F. INDEX. A. ABSTRACT should notice every incumbrance on an es(ate lutended to be mortgaged . • • .373 ACCOUNT . ^ legatee taking payment by a mortgage, and then resorting to funds provided for the legacies, will be put to account, 107 mortgagor will be allowed payments made to mortgagee before notice of assignment . • 128, 130, 41G mortgagee entering, or let into possession, subjects himself to, 14J mortgagee of Welsh mortgage, sometimes liable to . 150 creditor in possession taking assignment of mortgage, liable to tb. mortgagee assigning over to insolvent, without mortgagor, lia- ble to . . • • 1- ui # assignee of mortgage without mortgagor's consent, liable to the whole account . • • • * " at what rate a mortgagee shall account . 1^0, 151 will be liable for profits he might have received, if guilty of fraud . . . • . • 1^1 what costs a mortgagee shall be allowed m accounting • 15- title deeds stolen from mortgagee, account directed with an enquiry . • • * • u n how a mortgagee of stock transferring or selling it shall ac- count . . • • i/i"? when annual rests directed in accounting . ^^^ how mortgage accounts directed in general, and in particular cases . . . • 153, 154, 155 « all just allowances" in decree to, does not authorise allow- ance for improvements . . .154 taken and settled, cannot be set aside or overhauled, except for fraud or error to be specified . 155, 157 how an attorney taking a security shall account . 15G 2k 498 INDEX. ACCOUNT, continued mortgagee, executor of mortgagor, refusing executorship and settling account with other executors, account liable to be opened at any time . . . 15G in accounting, a recital may be laid hold of to shew w hat due ib. question of error in, may be tried with mortgagee, though mortgagor bound as against assignee . . ib, if purchase of equity by mortgagee set aside as fraudulent he will have to account as mortgagee . . 157 when an account by mortgagee shall keep the equity of re- demption on foot . . . 20G, 207 before Master will turn interest into principal, if confirmed 228 between mortgagor and executors of mortgagee binding on spe- cific legatee ..... 409 mortgagee cannot have of by-gone rents received by mort- gagor ..... 92, 160 unless fraud in mortgagor . . ib. second mortgagee cannot have against first mortgagee, in pos- session of rents paid to mortgagor before notice 167, and see Addenda. See Assignee. ADEMPTION. See Devise. ADMINISTRATOR. See Personal Estate,— Personal Repre- sentative. ADVOWSON mortgagee of, cannot present his own nominee . 110, HI till foreclosure . Ill mortgagee's presentee may be removed, when and how ib. mortgagee of, should pray sale instead of foreclosure, and why .... Ill, 112 AGENT. See Notice, — Tacking. AGREEMENT allowing mortgagee right of pre-emption, good . 20 how mortgagee should proceed upon such an agreement when he wishes to sell . . . 20, 21 that mortgagee shall enter at a fair rent in discharge of debt, good .... 151, 152 respecting redemption, or to purchase equity, will keep the right to redeem on foot . . . 208 respecting further advance, to entitle mortgagee to tack, must be in writing .... 287 ANNUITY for lives granted in consideration of a debt — personal estate of grantee .... 149 secured on an equity of redemption, when to be enrolled 184 lands charged with, will remain liable in hands of mortgagee 405 APPOINTMENT exclusive to a child, under a power fraudulent, where . 375 mortgage under such appointment may he set aside, when ib. See Moktgages under Powers, — Pom kr. ASSETS, where a mortgage for years shall be, where a mortgage in fee 149 how legal assets are administered, how equitable . . 186 equity of redemption, when legal, when equitable assets 186, 187, 188 2 INDEX. 496 ASSET*^, continued order in which they shall be applied to pay oft' mor(2;age money . . . 249, 250, el seq. will be marshalled in favour of specialty creditor or legatee, and how .... 272, 273 See Devisc, — Devisee, — Payment of Mortgages, — Puuciiajeh. ASSIGNEE of mortgage, takes subject to the mortgage account . 128 must allow all payments made by mortgagor to mortgagee before notice of assignment . . • ilf- though mortgagor pay without requiring delivery of mortgage deed . . • 416 entitled as against mortgagor to all the money due, though he buy for less . . . .129 should give notice of the assignment to mortgagor 129, 130 without mortgagor's consent, liable to the whole account 150 when entitled to interest on interest . . 227 See Account, — Tacking. ASSIGNMENT of mortgage how to be made . . . . 128, 129 what will be a sufficient assignment . . 129 of a mortgage by deposit . . 34 whether it may be made by parol . . 130,131 no determination of the mortgagor's estate at will . 159 when it will keep open the equity of redemption . 208 for money due will not enable a fraudulent mortgagor un- der 4 and 5 W. and M. to redeem . . 212 upon trusts of settlement, how it should be made . 409 of mortgage term, how to be made when tenant for life intends to exonerate 240 how to be made when charge paid oflF out of a lunatic's personal estate . • • '^■^■^ of legal estate, as between incumbrancers, what shall confe.-' a preferable right to . . • ^99 303 ATTOllNEY taking a security, when and how he shall be liable to account 155 for vendor neglecting to give notice of incumbrances char^ 'able 3'jl for mortgagor delivering over title deeds to mortgagee, not guilty of a breach of trust . . . 396 power of, from mortgagor to mortgagee irrevocable by the act of the party . • • .103 but may be revoked by death of mortgagor :0. ATTORNMENT, benelit of, in giving possession, saved to m^rtgrge's by 11 Geo. 2. c. 19. s. 11 . . • 78 sufficient without atiy payment of rent ; 79 B. BANKER.— See Usuuy. BANKRUPT, if mortgagor become l)ankrupt, mortgagee may pray sale under the general order, and prove for residue . . 83,274,273 600 TxXDEX. BANKRUPT, continued equitable mortgagee not within this general order . 84 the general order docs not apply if the equity of redemption be out of the bankrupt . ... ib. but second mortgagee present at an order for sale, not ob- jecting, will be bound by it . . . ib. mortgagee of lease may pray sale, though subject to forfeiture on assignment . ... 85 mortgagee having elected to prove, cannot pray a sale 85, 274 sale under general order liable to auction duty . . 85 assignees in bankruptcy, may sell subject to mortgage, though the case does not fall within the general order . . 164 conveyance by trader of all his estates as a security, act of bankruptcy .... 168 assignees of, cannot institute suit to redeem without leave of creditors . . . . .190 cannot redeem unless assignees refuse . . 192 creditors in bankruptcy cannot redeem unless assignees refuse ib. mortgagee of real estates or chattels personal in possession is not a creditor within the bankrupt act 21 Jac. , 274 on bankruptcy of principal mortgagee may prove, and then re- sort to surety .... 275 to what extent a mortgagee may come in as creditor under com- mission, after default in payment, on mortgage bond ib. mortgagee of stock, to what extent he may prove under com- mission . . . . . ib. See Interest, — Usury. BANKRUPTCY. See Bankrupt. BARGAIN AND SALE. See Inrolment. BEQUEST. See Devise. BILL. See Foreclosure, — Parties, — Redemption, Bill for. BOND when it accompanies a mortgage, what the condition should be 15 may be dispensed with where there is also a warrant of attorney 22 interest on, cannot be recovered beyond penalty 22, 67, 68 unless judgment entered up . . 23 given as a collateral security upon Irish or West India mort- gages good . . . 223 — and see Addenda. to pay interest on interest due, does not enable mortgagee to tack the compound interest . . . 287 See Tacking. c. CANCELLING of mortgage deed may release the debt . . 421 will not revest the estate . . ib. CHARGE. See Merger,— Portions. CHARITABLE USE notice of lands being given to a charitable use within the 43 Eliz. will be binding on all assignees . . 389 contra, if original purchaser or mortgagee had no notice ib. See Mortmain. INDEX. 501 CHATTELS PERSONAL what shall be a sufficient leaving of possession of, in mortgagor to make it fraudulent within 13 Eliz. c. 5. or 2lJac. I.e. 19. s. 11., and what not . • • 314, 315 of chattels personal capable of personal delivery 37, 315—319, 326—329 of goods in a warehouse or incapable of delivery 320 a ship at sea . • • ^20, 321 in port .... 321,322 goods or cargo in a ship . • 322, 325, 326 in a warehouse . • 320, 326 £ . . . 3o0 fixtures . • • .. chattels fixed to the realty • • '^• debts and choses in action , . 33J, 3^.}, -io^ stock in the public funds . • 332, 333 what interest passes on assignment of, by way of mortgage, by particular persons, as, consignee of bills of lading . . * 323 factor • • • * * 324 broker . • • • ' .^ bailee . . • * .to. holder of a bill of exchange . • 324, 325 depositee of deeds holding them for a particular purpose 325 attorney having power to sell stock in the funds ib. may be settled to go as heir looms . , ' „ wife's chattels may be discharged of husband's debts by settle- ment before marriage . • . z . COLLECTOR OF TAXES is a simple contract creditor to the crown . • ^^^ See Fraud, — King. COMMISSION. See Usuuy. COMPOSITION DEED with creditors should provide that creditors having special se- curities should not be prejudiced by joining • 107 COMPOUND INTEREST . , ^ ,,„ ^27 cannot be reserved by original agreement . -^3, -^/ but after interest become due it may be turned into principal, upon a fair agreement • ' -e \ not as against subsequent incumbrancers, if mortgagee have notice • • • * ' not allowed because interest is in arrear ^ . ^z/ if interest paid on interest agreement to turn into principal im- ^^ plied . • • • ' . . * assignee of mortgage when entitled to * . . , .^ account before master will turn interest into principal, if ron. firmed, and from what time . . _ /-p? --^ private accounts signed by parties will not make interest princi- ^^^ in decrees for sale, if deficiency expected, Court sometimes re- strains incumbrancers from claiming interest on sums re- ported due, and sometimes orders a lower rate of interest on ^^^ the compound sum • • * * if infant be defendant account in Chancery will not make m- ^^^ tercst principal . - - ' " 1 503 INDEX. COMPOUND INTEREST, continued contra, if infant be plaintiff in equity . , ib. agreement by infant to allow, if for his benefit good 230 ■will not be allowed on original covenants because profits of estate insufficient to answer simple interest . 231, 232 ■will be allowed on interest for purchase money paid, if sale avoided .... 232 judgment at law will turn interest into principal . ib. See Interest, — Usuiiy. CONDITION, one default in payment according to, enables mortgagee to pro- ceed for the whole sum ... 87 to pay at the end of six months, means calendar months semble . . . .414 See Proviso for Redemption. CONDITIONAL PURCHASE what shall be ... 12, 13, 14 CONSIGNMENT. See West Indies. CONTINGENT REMAINDERS supported by outstanding mortgage in fee • 168 CONTRIBUTION where different funds shall contribute to pay off a mortgage, and in what proportions . . 269,270,271 CONVEYANCE when it shall be considered a mortgage . 7, 8, 9, 27 defective when supplied in favour of mortgagee, when not 104, 308, 309, 310 how to be made under power to sell by mortgagee 19 CONVEYANCE UPON TRUST TO SELL sometimes used instead of a mortgage . . 17, 19 how it is made ... 18 to secure a debt revocation pro tanto only of a devise 169 unless intent appears to revoke entirely ib. to secure debts, creditor under cannot redeem a mortgage, unless trustees refuse . . . 192 to secure debts, to which no creditor is a party, or debt spe- cified, voluntary .... 378 if only some creditors be parties, or some debts specified, voluntary as to rest . ib. COPYHOLD, mortgages of, how made . , 21 admission of mortgagee generally delayed . 102 acts necessary to be done on payment of mortgage of copy- holds . . . . 102,423 whether mortgagee of, compellable to be admitted depends on custom of manor . . . 102 mortgagee of, may pull down houses and build better, io save a forfeiture . . . 103 mortgagor of, devising, need not surrender to uses of will 179 surrender of, to use of mortgagee's will, when it will keep open the equity of redemption . , 208 mortgagee of, cannot tack a judgment to his debt . 290 may foreclose before admission . 435 though mortgage surrender void . ib. INDEX. 503 COSTS. when and what, a mortgagee shall be entitled to 131, 132, 133, 134, 152,277, 437 mortgagee entitled to his full costs . .135 mortgagor'must pay, of all persons parties to bill for redemption 198 paid at°same time with the principal mortgage money 276 of heir of mortgagee on bill by devisee to foreclose no charge on the estate . . • • / . '^^^ of taking out administration to an incumbrancer to bring him before the Court on bill to foreclose, will be allowed . 439 of perfecting mortgagor's title after payment must be borne by him 424 of perfecting mortgagee's title after foreclosure, must be paid by him . . . . • -^^5 COVENANT. construction of the covenant to convey the fee after default in payment . . • . o to pay the mortgage money the benefit of such a covenant . • 15, 22 its effect on the deed • • • ^ ^ how it should be worded . • 1^ what may be recovered under a covenant to pay 22 covenants for title in mortgages should, in general, be absolute 16 covenant that on regular payment of interest, money shall re- main on mortgage good . • .21 one default, on such a covenant, enables mortgagee to pro- ceed for the whole sum . • ^^ to pay interest how it should be worded . ' i ^^ mortgagee cannot sue on a covenant with the mortgagor, entered into after the mortgage . • • ^°^' !«I but such covenants are covenants in gross in mortgagor 161 covenants of mortgagor, how far binding on his devisee 179, 180 to pay at the end of six months, means calendar months semble 414 COVERTURE, no excuse for fraud . • • • " feme covert will be bound by foreclosure without day 434 See Husband ani> Wife. • ^ c i^ K CREDITOR. See CoxWeyance upon Trust to Jsell, — LJebt, — i\.i.NC, — Rj:uemption, Bill for, — Tacking. CROP. See Emulements. CROWN. See King. CURTESY, equity of redemption subject to ... lo^ mortgagee purchasing estate of tenant by, will prevent him from acquiring title by quiet possession . • • ^Oo tenant by, must keep down interest - • 235, 243 CUSTOM, . mortgage to a citizen of London, subject to . 14/ of York or London, will not prevent mortgagor's personal es- tate from being applied to exonerate the real. . 250 5W INDEX. D. DEBT barred by the statute of limitations, will be revived by a trust or devise to pay debts . . . &7, 68 unless the demand very stale . . 68 may be mortgaged, and how . . 331, 333, 334 mortgage debt remains, notwithstanding tender and refusal 417 unless upon a gratuitous mortgage . . ib- mortgage money is a debt by simple contract, though neither bond nor covenant to pay . . . 249, 250 See Interest, ** DECREE is not of itself notice . . . 383 but notice of, aliunde binding . . 386 to account, is of itself notice . . . 385 to account and settle priorities prevents creditors from tacking, or altering the order of the incumbrances . 386 See Foreclosure. — Redemption, Bill for. DEEDS. — See Title Deeds, — Mortgage by Deposit. DEFEASANCE. orders of Court requiring defeazances to be written on the same paper with the warrant of attorney . , 23 how the defeazance should be made . . ib, if improperly made, or if not endorsed, does not invalidate the security ... . 24 does not require a separate stamp . . ib. See Proviso for Redemption, — Warrant of Attorney. DEPOSIT OF TITLE DEEDS,— ^•(^e Mortgage by Deposit. DESCENT ex parte materna altered by mortgage . . igg of equity of redemption like a trust . , igo devested in favour of posthumous son, semble . . 180, 181 DEVISE what devises by mortgagee will pass mortgaged estates 135, 135, 137, 138, 141 of mortgaged lands must be by will executed according to the statute of frauds .... 140 requisites of the statute not necessary to pass mortgage money 130, 131 after foreclosure mortgaged lands will ])ass by a general devise 140 how mortgagee should devise when doubtful whether mortgage be foreclosed or not .... 143 of money due on mortgage does not pass arrears of interest 141 arrears of a mortgage does not carry principal money ib. money on a mortgage is a specific legacy . . ib, not adeemed by payment in testator's life-time ib, testator's property in a certain house, does not pass mortgages found there .... ib. mortgages, within the mortmain act of 9 Geo. 2. c. 36. ib. INDEX. 505 DEVISE, continued of lands, revoked pro tanto by a mortgage . jgg by a conveyance to sell to secure a debt ib. entirely revoked by mortgage or conveyance, &c. if in- tent to that effect appears . ^ .-^ revoked pro tanto only by a mortgage for years and fine sur cognizance come ceo, &c. semble 17O— and see of lands, charged with or subject to debts does not exempt personalty from paying off the mortgage . 251 252 mortgaged lands " subject to incumbrances" does not exempt personalty . . . , 2^2 or lands descended . . . 252 253 part of real estates for payment of debts, exempts lands de- scended * • . . 253 mortgaged lands generally charged with debts does not exempt lands descended from payment of mortgages . ib, upon trust to sell and pay a particular debt, exempts per- sonalty from payment of that debt . , 256 but not if bequest of personalty becomes lapsed . 257 See Equity of Redemption. DEVISEE of mortgagor, how far bound by his covenants . 179 180 may have lands exonerated out of personal estate 250 raising money to pay off the mortgage debt, or covenanting to pay, does not throw the debt on his personalty . . 260 of mortgaged estate and personalty dying without paying off mortgage and intestate lands pass cum onere 258, and see Ad- denda. DISCLAIMER freehold may be disclaimed by deed . . 70 DISCOVERY mortgagor cannot have, of mortgagee's title, unless entitled to relief on his own bill . . . OQQ mortgagor cannot have, beyond original transactions, if one en- ters under an agreement to receive rents in payment ib. mortgagee of plate not bound to make . . 323 324 fraud in obtaining legal estate or title deeds, no ground for 396 jointress may be compelled to^ when . . 396 397 mortgagee of an estate not obliged to discover boundaries, and when ..... 339,340 See Gaming, — Mortgage Deed, — Title Deeds. DISSEISIN mortgagor's possession, no disseisin of the assignee of mortgagee 159 entry of mortgagor's heir or devisee, no disseisiu of mortgagee 159, 160 DOWER ' cannot be out of an equity of redemption on a mortgage in fee 182 may be out of an equity of redemption on a mortgage for years ib. mortgage term taken in by a purchaser will protect against the mortgagor's wife's dower • . i82, 183.300 will not protect a voluntary purchaser . . 182 tenant in, may redeem . . . .190 saved to wife by 4 and 5 W. and M. unless she joins in the fraudulent mortgage . , . 212 83 506 INDEX. DOWER, continued tenant in, need not keep down more than one-third of the in- terest on a mortgage . . . ^43 E. EJECTMENT mortgagee may eject mortgagor . . . 78, 160 or tenant claiming under mortgagor vphose lease began after the mortgage . , gQ cannot be brought against a receiver or sequestrators without leave of Court . . . , mortgagor may stop proceedings in, by paying money into Court under 7 Geo. 2. c. 20 . . . , gg where he cannot • • • 89 rules respecting and construction of the statute 7 Geo. 2. c. 20. .... 89—92 mortgagee may under 4 Geo. 2. c. 28. pay rent to landlord to save a forfeiture of lease, any time within six months after ejectment . . . . 97, 98 though execution executed) and lease granted to a third person 98 as to leases ipso facto void for nonpayment of rent, &c. 99 demise in by mortgagee may be laid before determination of will .... 158, 159 mortgagor may set up legal estate against mortgagee, in 160, 161 in trials by, when a mortgage-term shall be presumed surrendered 423 See Interesse suo, — Ireland, — Lessee, — Notice to quit. ELECTION of heir, will not impeach title of mortgagee claiming under mort- gage from the heir before election . . J07 but then fund elected must exonerate the one mortgaged 274 of mortgagee to prove as general creditor under commission of bankrupt prevents him from resorting to his security 85 so of mortgagee coming under composition deed, semble 107 legatee taking payment by mortgage may still resort to fund provided for the legacies by testator . . ^*^, See Parliament. ELEGIT, creditor under, may redeem a mortgage . . jgi EMBLEMENTS mortgagor not entitled to, as against mortgagee . 78,158 tenant under mortgagor after mortgage whether entitled to, Qu. 158 EQUITABLE MORTGAGE what • • • • r 27 absolute conveyance to a creditor is a mortgage in equity ib. agreement to mortgage part, sufficient mortgage as to subse- quent incumbrancers with notice . . O), agreement to mortgage on demand gives no lien till demand 28 warrant of attorney to confess judgment in ejectment, good equitable mortgage . . . ib. delivery of deed to prepare a mortgage sufficient equitable mortgage .... 32 validity of equitable mortgage decided by the Court, if mort- gagor become bankrupt ... 84 See Mortgage by Deposit. INDEX. 507 EQUITY will confine prior creditor to fund, to which subsequent cannot resort . , . 271, 272, 273 though by this means subsequent creditor may acquire a right to tack • • . . 274 will let in subsequent incumbrancer or creditor on other funds to the extent of fund exhausted by former incumbrancer 272 273 EQUITY OF REDEMPTION ' whiit . . • . . 6 cannot be controlled by the agreement of the parties . ih. how it should be reserved on a mortgage by trustees . 72 whether it subsists as against the king . 113 114 as against the lord by escheat . 114 mortgagee may purchase . . , 117 how it should be conveyed when mortgagee purchases ib, may be conveyed away to a purchaser , , 178 may be mortgaged • • . . ib. may be devised • • . . ib. will pass l)y devise before condition forfeited . 178, 179 descendible in same manner as any other trust estate ISO possessio fratris may be o^, semble . , ib. descent of, devested in favour of posthumous son, semble ISO, I8I whether liable to escheat . . , iSl may be forfeited to the crowa . ; isi, 189 is intailable .... 181 on a mortgage in fee not subject to dower . 182 subject to curtesy .... ib, will pass to assignees in bankruptcy . . 184 ill wife's term will go to husband surviving . , ib, not subject to execution by sheriff . . 188 subject to execution on an extent . . 188, 189 may be lost to mortgagor by non-payment of the money on the day appointed in a bill to redeem . 200, 201, 425 may be lost by the possession of the mortgagee for twenty years, but then .... 201, 203 such possession must be of all the property in the mort- gage . . .201, 202 must be adverse . 202, 205 Avithout any act by mortgagor to inter- rupt it . . 205, 206 or any act by mortgagee referring his possession to his mortgage title 206 wherein what acts by mortgagee shall be sufficient to keep the equity of re- demption on foot 206 — 209, 212 twenty years' possession not sufficient to oust mortgagor's right to redeem, if any disability in mortgagor . 203, 204 ten years allowed after disability removed to re- deem . . . 205 but, if once it begins to run, must run on , 204 commences afresh from last acknowledgment of mortgage title . . . 206 no length of possession sufTicient if mortgage-money payable on demand, unless demand made . . 203 508 INDEX. EQUITY OF REDEMPTION, continued no possession sufficient to oust mortgagor's equity if mortgagee guilty of fraud in clogging redemption . 203 lost to mortgagor if he mortgage without giving notice of prior judgment . . . . 211 unless, &c. .... ib. lost to mortgagor if he mortgage a second time without giving notice of the first mortgage . . ih. may be lost by decree in bill for foreclosure . 425 See Rkdemption, — Release. ERROR bail in, on mortgagor's suing it out, on judgment on covenant to pay . . . • . 163 ESCHEAT whether mortgagee shall hold absolutely if mortgagor die with- out heir, or whether the lord by escheat may redeem, doubtful . . . 112, 113 whether in such case the executor of mortgagor may redeem, Qu. . . . . .113 whether redemption may be against the king in by escheat ib. whether the lord by escheat shall hold absolutely . 114 equity of redemption whether liable to escheat . 181 EVIDENCE of notice, what will be required where defendant neglects to deny notice, or denies improperly . . 394 See Interest, — Mortgage-money, — Parol Evidence. EXECUTOR. See Personal Estate, — Personal Representative. EXEMPTION. See Devise, — Parol Evidence, — Pirsonal Estate. EXONERATION. See Election, — Heir, — Merger,— Payment of Mortgages, — Personal Representative, — Remainder- man, — Surety, — Tenant for Life, — Tenant in Tail. EXTENT on a sale under, subject to mortgage, notice of should be given to mortgagee . . . .164 See Equity of Redemption F. FEME COVERT. See Coverture, — Fine, — Husband and Wife. FINE by tenant in tail after mortgage will let in the mortgage 42 unless had under direction of Court . . 43 by issue in tail will let in reversion subject to the ancestor's mortgage .... ib. by mortgagee, will not bar mortgagor . . . 118 when fine by mortgagee and non-claim shall bar mortgagor ib. by mortgagor will not bar mortgagee . . 163 levied by disseisor of mortgagee, mortgagor shall have five years after tender to enter , . . ib. Sur cognizance de droit come ceoj &c. on a mortgage in fee, will not revoke a former devise . . .170 on a mortgage for years will not, semble ib. and see Errata. m INDEX. 609 FINE, continued by wife on a mortgage will not extinguish rights not intended to be barred . , , 170 FIRE mortgagee must bear loss happening by, semble . . 101 FORECLOSURE dismissal of bill for redemption for non-payment, operates as 200, 201 not so, if the dismissal be for want of prosecution . 201 when a sale should be prayed instead of foreclosure where mortgagee is a co-executor to mortgagor . 420 where the security is defective, semble . 426, 427, 428 if the moitgage be of a dry reversion . . 429 if the mortgage be of an advowson, and why HI, 112, 429 sale or foreclosure should be prayed in the alternative, where infant entitled to equity of redemption . . 429, 430 will not be decreed against an infant, if sale more for his be- nefit . ... 430 will not be decreed against an infant till 21, if mortgage taken by a defective conveyance . . . 434 what the decree will be in such case . . ib. may be had against an infant . . . 432 a feme covert . . . 434 will not be decreed against the crown . . ib. decree of, not necessary upon a mortgage of stock. 152, 153, 434 cannot be had till condition forfeited . * 435 cannot be decreed on a Welsh mortgage . . ib. may be had before mortgagee takes possession . . ib. of copyhold before mortgagee is admitted . ib. though surrender void . . ib. may be brought at the same time as ejectment . . 436 bill for, who should be parties to trustee on bill by cestui que trust , . ib. executor of mortgagee . . . 437 heir of mortgagee need not, on bill by devisee . ib. must be on bill by executor 437, 438 mesne mortgagee must be where there is a submort- gage . . . . 43S mortgagee need not be, on bill by assignee . ib. on mortgage in fee, heir of mortgagor must be . ib. executor of mortgagor should not • ib. so if the mortgage be for years, by one seised in fee .... 439 if freehold and leasehold in same mortgage, both heir and executor of mortgagor must be parties . ib. bankrupt, mortgagor need not be . . ib. subsequent incumbrancers on the equity must be ib. and why . . . 440 this rule admits of exceptions, semble . ib. incumbrancers, whose incumbrances did not begin till after suit to foreclose commenced, need not be ib. but if legal estate conveyed away by mortgagor dur- ing pendency of suit, n»ortgagee may be put to a new suit . . , 441 510 INDEX. 442 ib. 89 FORECLOSURE, continued bill for, who should be parties to creditors of mortgagor, after bill filed by them to sell, must be parties . . , 441 if mortgage settled or devised to various uses, first tenant in suit and claimants under prior limita- tions must be . , 441 442 may be had by one tenant in common, 5ew&/e . . 435 obtained by heir of mortgagee only binding on mortgagor 437 obtained against some subsequent incumbrancers only, not bind- ing on the rest . . . .441 binding on incumbrancers whose incumbrances began after suit commenced to foreclose . . 194,195,385,440 binding on remainder-man, if tenant in tail release, though not made absolute may be had against tenant for life only, if tenant in tail abroad • • • . Court may make summary orders in bills of, under 7 Geo. 2 c. 20 . order under this statute cannot be discharged on mo- tion • • . . 92 time to redeem on bill of foreclosure computed according to calendar months . . 442, 443 may be enlarged to a fourth time, on good cause shewn 443 refusal to produce title deeds good cause to enlarge time, semble .... 397, 443 may be enlarged on motion, under 7 Geo. 2. c. 20 ib. execution of decree in, cannot be suspended till six months after appeal heard, but Court will allow, &c. , . 443, 444 will not be kept open, on account of consideration for mort- gage, being partly a gaming debt, unless mortgagor takes that objection at first, but, &c. • • . . if title deeds lost, will be decreed with an enquiry, semble in decree for. Court will not point out what title mortgagor shall make, but decree him to make a good title in decree for, if mortgagor has legal estate, he will be com- pelled to convey it to mortgagee decree for, not complete till final order release of equity after decree equal to final order will be opened in what cases on matter subsequent, if no wilful default in mortgagor to redeem, semble .... if mortgagee brings action for money afterwards 87, contra, if he first sells the estate, and then brings action for residue, semble . . ib. if first mortgagee forecloses second, and lands afterwards come to mortgagor, it will be opened in favour of se- cond .... 446 if mortgagee has been guilty of fraud . , (b. cannot be opened, in what cases. because mortgagee brings bill of revivor . . ib. because mortgagee consents to examine witnesses after a foreclosure by non-payment according to order . ib. for want of matter of form . - " ib. 444 ib. ib. 445 444 ib. 443 445 INDEX. 511 FORECLOSURE, continued cannot bs opened, in what cases for overvalue in estate . . . 447 on account of parol agreement that mortgagor may re- deem .... 447 because mortgagee has been overpaid by rents . ib. because estate has been devised as a " debt" or '^ mo- ney" . . . . . ib. See Redemption, Bill for. FORFEITURE may be of an equity of redemption • 181, 189 See Ejectment. FRAUD shall postpone a prior incumbrancer when • 357 if being present at a treaty for a settlement he neglects to give notice .... 358 if he negociates, or is concerned in effecting the second mortgage . • • 358, 359 if lie denies that he has any mortgage . . 360 though he may not know of his title . 3GI contra, if deed containing his title be detained from him .... ib. misrepresenting sum due will be postponed pro tanto 361, 362 what shall not be sufficient to postpone a prior incumbrancer simple fact of being a witness to the second mortgage 359 knowing of treaty for second mortgage, and neglect- ing to give notice . • 3G0 denying his mortgage when the second mortgagee docs not state his reason for enquiring . 301 when he cannot know of his title by reason of the deed containing it being kept from him ih. on a contemplated mortgage to A. not sufficient to postpone him to B., a subsequent mortgagee ib. infancy or coverture no excuse for fraud . • 360 attorney for vendor neglecting to give notice of incumbrances chargeable • • • .361 receiver-general of taxes advancing money, on mortgage, to col- lector to pass his accounts fraudulent • . 374 that the mortgage may be set aside, though receiver-general has no notice of the collector's being indebted semble ib. in obtaining legal estate, no ground for discovery . 396 FRAUDULENT CONVEYANCE from a debtor to his creditor, when it shall be 379, 3S0 for payment of debts, how far it may be . 378, 380 See Conveyance,— Settlement, Voluntary. FURTHER ADVANCE.— .See Registky,— Tacking. G. GAMING securities for gaming debts void . . 165 bill will lie for discovery of gaming consideration, and for repay- ment of money paid thereon . . , ib 512 INDEX. GAMING, continued consideration of, no ground to keep open time in foreclosure, unless objection taken at first, but, &c. . . 444 GUARDIAN of an infant, may redeem out of profits of estate 191, 244 cannot pay principal of any incumbrance, except a mortgage, out of profits of estate . 191, 244 may keep down interest of incumbrances generally, out of profits of estate . . 244 buying in for less than due, cannot tack residue 280 See Merger. H. 146 147 ib. 190 195 197 ib. 249 250 HEIR of mortgagee will be decreed trustee of the land for the personal representative .... though he purchase or foreclose, and though no debts yet said that in such case, &c. of mortgagor, may redeem mortgagee, should be party to bill to redeem mortgagor must be a party on bill to redeem a first mortgage brought by subsequent incumbrancer devisee of mortgagor need not bring his heir before Court on bill to redeem .... of mortgagor, may be sued on covenant, but will have a claim on the personal representative may have the lands exonerated out of personal es- tate .... joining in assignment of mortgage, or covenant- ing to pay, does not make the debt his own, so as to throw it on his personalty . 258, 259 though he borrow a further sum, and pledge other estates of his own, if the further sum be small so if he mortgages estates descended to pay an- cestor's debts, or legacies or devises his own lands subject to debts or remortgages the estate See Foreclosure, — Personal Representative, — Tacking. HUSBAND AND WIFE interest which the husband acquires in mortgages to the wife mortgage by husband of wife's term, eff"ect of . 167, 168 wife bound by answer to bill of foreclosure . 171 wife bound by direction to tenants to attorn to mortgagee after husband's death .... ib. previous estates of husband and wife, how altered by a mort- gage .... . 171 — 175 equity of redemption in v/ife's term will go to husband surviv- ing ... . . 184 husband of wife mortgagor in fee need not keep down interest of mortgage money during their joint lives . 239, 243 as between, whose estate shall be the primary, and whose the auxiliary fund for payment of mortgages . 264 — 267 259 ib. 260 261 145 INDEX. 515 I. and J. INFANT infant mortgagees may convey under 7 Ann. c. 19. ]\g ]^q ■when an infant mortgagee may convey under the act .]^23 \15 IRELAND continued. . deeds in, take effect according to registry, ^vliether equitable or legal conveyances • • • • ^^4, 35o notice of unregistered deeds there binding . 355, 35b registered judgments in, how they take eftect . 357 sale there decreed instead of a foreclosure . . 4-9 See Penalty,— Registry. JUDGMENT , ,j , . , ' . when given to accompany a mortgage should be entered up ira- mediately • • • ' tn is a general lien on lands • ,.*„,, *. ,, entered up at Westminster, will attach lands in Wales and the Counties Palatine • • * im creditor by, may redeem a mortgage ■ • l-'l but to redeem a mortgage of leasehold must first lake out execution . . • • J^' a mortgagee tacking not confined to penalty . . 289 creditor by, buying in a mortgage, cannot tack . . 290 but may protect himself by it . . • 294 will protect subsequent incumbrancers, though satisfied at law, and though no consideration paid . • • 296 how and to what extent it protects subsequent incumbrancers 290 to 294 from what time it binds lands as against purchasers . • • |?' ol^ cognizor . . • • • -'*■> •^'-' other judgment creditors . . • 25, 31'2 docketing of . . . 311, note (J) record of, not of itself notice . • • ^[* but notice of aliunde binding . • • ^J'- though not doegetted, or improperly doggettod 311, 3/2 against the estate of mortgagor should be noticed in the ab- stract of title • ' •:, ' " H, satisfaction should be entered up, when paid ofi . . 424 See Bond,— Interest,— Registry,— Tacking. K, KING, THE , , . . n. whether redemption may be decreed against . . 1 1^ may grant lands escheated or forfeited . • «*• crown or grantee of, may redeem . .190 in payment will be confined to funds to which mortgagee cannot ^ resort • • * * . — *. exhausting funds comprised in security, mortgagee may stand in the place of .... ^^^' ^^^ ■who is a simple contract creditor to . • • 374 cannot set aside a mortgage cr sale bona fide made by a simple contract creditor to the Crown . . • 374, 375 LASTING IMPROVEMENT when mortgagee entitled to money laid out in 107, 108, 152 2 L 2 516 INDEX. LEASE AND LEASEHOLD mortgagee of lease subject to rent and covenants . 9S how mortgage of leaseholds should be made . . ib. how mortgage of renewable or ecclesiastical leases should be made .... 93, 94, 164 how mortgages of leases to be void for non-payment of rent, &c. should be taken . . . . 9& Crown leases void for non-payment of rent, &c. . ib. •where a mortgagee joins in granting a lease, the lessee should covenant with him also . . . 101 how a lease of mortgaged premises should be made . ib. mortgagee of renewable, cannot compel mortgagor to renew 108 but may renew himself, and claim expences . . ib. mortgagee of renewable, entitled to renewals obtained by mort- gagor .... 108, 109 mortgagee of renewable for lives not compellable to surrender to obtain a renewal, and why . , . 110 contra of a mortgagee of renewable leases for years ib. mortgagee cannot contract for lease with mortgagor . 117 when a mortgagee may grant a lease . .118 mortgagor cannot alone grant a valid lease . , 161 lease of mortgagor only will pass equity of redemption 161, 162 See Ireland, — Lessee, — Mortgage by Deposit. LEGACY to discharge a mortgage within the statute of mortmain 275 whether such legacy may be applied to other purposes for the charity. Qu. . . . ib. See Cuarge, — Devise, — Interest, — Merger. LEGAL ESTATE conveyed away during suit, may put plaintiff to new suit 441 See Assignment, — Foreclosure, — Priority of Incumbrances, — Tacking. LEGATEE when entitled to stand in the place of a bond creditor or mort- gagee as against real assets devised or descended . 273 See Account, — Election. LENGTH OF POSSESSION.— 5'ee Equity of Redemption,— Re^ DEMPTioN, Bill for. LESSEE under contract with mortgagor after mortgage, situation of, 161, 162 may in such case redeem mortgage . 161, 190 under mortgagor not giving notice of ejectment by mortgagee, not liable to three years' value . . . 162. may get a friend to redeem . . .190 See Ejectment, — Lease and Leasehold, — Notice to Quit, — Rent. LIEN what, as distinguished from mortgage and pledge . 3 See Chattels Personal, — Mortgages by Deposit of Title Deeds. LLMITATION OF SUITS.— 5ee Equity of Redemption. LIS PENDENS is a sufficient notice to purchasers and mortgagees, when 384, 385 will not prevent subsequent incumbrancers from getting in prior securities so as to tack . . . 385 prevents a prior incumbrancer taking in subsequent incumbrance from tacking the subsequent . . 385 INDEX. 517 LUNATIC mortgagees may convey under 4 Geo. 2. c. 10. . 120 before inquisition found under 1 and 2 Geo. 4. c. 114. . . . . 121, 128 who shall be a sufficient mortgagee; within these acts 123, 124, 127, 128 committee of, may redeem out of savings . . 191 on a mortgage being paid oflf out of his personal estate, Court will not determine the rights of his real and personal repre- sentatives during his life . . . 244 M. MAINTENANCE where maintenance, or interest by way of maintenance, shall be allowed on portions and legacies, and where not, at what rate and from what time . . . 62 — 06 must be raised from time to time as it becomes due . 66 MAINTENANCE OF SUIT mortgagee may interfere in all actions and suits touching mort- gaged property . . . .97 mortgagee may advance money for defence or prosecution of a suit without being guilty of maintenance . ib. MARSHALLING. — See Assets, — Equity. MERGER charge on an estate to be raised and paid at a future period will sink into the land if the person entitled die before the time for payment . . . .60 contra, if the time for payment be postponed on account of the circumstances of the fund . . 61 legacy charged on an estate as an auxiliary fund to be raised and paid within a year, shall not sink by death of the legatee within the year . . • ib. if the trust be " to raise and pay at the end of two years, if certain debts shall be then paid," no unnecessary delay on the part of the trustees in paying the debts will be allowed to affect the interest of the person entitled to the charge . 62 when the charge on an estate shall merge on the mortgagee's becoming entitled to the land . - 147, 148 when a charge or mortgage-debt shall merge for the benefit of the estate, on a tenant for life paying oft" . 240, 241 when a charge shall merge on tenant in tail paying off 241, 242 when interest paid by particular tenants shall be for the benefit of the estate . . . ._ ^ 242, 243 person primarily liable to pay off a mortgage, and paying it off, will be an exoneration . . . 243, 244 guardian of infant paying off mortgage out of profits of estate charge will merge . . • 244 contra, if he pays out of infant's personal estate ib, on charge being paid off out of lunatic's personal estate. Court will not, during lunatic's life, determine the question of merger . . . . . ib. first mortgagee buying the inheritance, his own mortgage shall not merge as against subsequent incumbrancers . 365 See Portions. MEMBER.— (See Parliament. 518 INDEX. MINE.— .See Mortgagee. MORTGAGE what •*...! why so called . . . . . 1, 2 distinguished from a lien and pledge . . 3 requisites to . . . . , ih. what may be mortgaged ... 4 by what conveyance it may be made . . . ib. mortgages for years .... ib. in fee . . . . 4, 6 in what cases a conveyance, seemingly absolute, shall be consi- dered a mortgage . . . . 7, 8, 9 difference between, and a conditional purchase . 12, 13 what a sufficient mortgage in equity . . 27 — 34 of an equity of redemption seldom recommendable . 178 Welch mortgage, what . . . .14 of copyholds, how made . . .21 purchaser borrowing money to complete, how the mortgage io be made .... 26, 27 assignment of, how to be made . . 128, 129 defective, supplied in favour of mortgagee . 104, 308 as against whom equity will not supply 309, 310 void if made for a gaming debt . . 165 on an usurious contract . 213, 219, 220 voidable pro tanto^ if made by improvident heir . 165 if fraudulently made by executors . 408, 409 not after great length of time and many assignments ib. effect of works a severance of joint estate . . . 167 by administrator, will take equity to his executor ib. by husband of wife's term, effect of . 167, 168 alters descent, ex parte materna . . 168 of all a trader's effects, act of bankruptcy . ib. in fee outstanding, supports contingent remainders ib. avoids voluntary settlement, pro tanto 168, 169 is a revocation pro tanto only of a former devise 39, 169, 170, and see Errata, unless intent appears to revoke entirely 169, 176 will not alter the previous estates of husbands and wives 171 — 173 unless intent to that effect appears 173, 175 under a power, where it shall be a total execution, where not . . . 176, 177 See Chattels Personal, — Debt, — Equitable Mortgage, — Interest, — Ireland, — Mortgage by Deposit of Title Deeds, — Mortgages BY Trustees, — Mortgages of Ships, — Mortgages under Pow- ers, — Payment of Mortgages, — Pleading, — Registry, — Stock, Usury, — West Indies. MORTGAGE BY DEPOSIT OF TITLE DEEDS what shall be considered a sufficient deposit of title-deeds to effect an equitable mortgage . . 28, 30 what shall not be a sufficient deposit to effect an equitable mortgage .... 29 deposit of part of title-deeds sufficient . 31 delivery ofdeeds to prepare a mortgage, sufficient mortgage in equity 32 with whom the deposit must be made . . 32, 33 INDEX. 519 MORTGACxE BY DEPOSIT OF TITLE DEEDS continued. deposit of coi)ies of court-rolls siitlicient mortgage of copyholds 33 lease may be mortgaged by deposit before licence obtained to alien 34 mortgage by deposit may be assigned by transfer of the deeds ib. deeds in the hands of a transferree will be considered the mort- gage of the original depositor if any written evidence of his having deposited them • . . 33 precautions necessary on a mortgage by deposit ', 34 ships cannot be mortgaged by deposit of documents . ib. mortgage of a lease by deposit should be accompanied with a written agreement, and why . . 93 will be good though mortgagor be simple contract creditor to crown . ... 374 will be postponed to bona fide mortgagee of the legal estate 341 whether it shall be preferred to equitable lien of vendor for purchase-money unpaid, Qu. . . • 3U7 See Bankrupt, — Equitablk Moutgage. MORTGAGES BY TRUSTEES must be for the amount of the principal sum charged and arrears of interest, which will carry interest according to the market price of the day . . , 66,67 should be of part of the estate only, if that suflicient 71 mortgage for years preferred to one in fee . . ib. may be made without any decree of Court . ib. may be made at any distance of time . , 72 may be made at ditierent times under the same trust ib. cannot be made after all the money has been once raised 75 how the equity of redemption should be reserved in . 72 what covenants should be inserted on the part of the trustees ib. under an act of parliament how to be made . 73 See MouTGAGEs under Powers, — Mortgage Money, — Portions, — Receipt, — Trust and Trustee. MORTGAGES OF SHIPS ships may be mortgaged . . . 34 how a mortgage of ships should be made, and how it must be re- gistered .... 35, 36 reasonable time allowed for registering . . 321 cannot be made by deposit of documents . . 34 if requisitesof registry act complied with, equity will restrain the Master from assigning the certificate of registry to the mort- gagor . . . . .36 equity will not relieve in favour of unregistered mortgage of ships 37 should contain power of attorney to recover earnings made under contracts with mortgagor . . 95 xMORTGAGES UNDER POWERS power to a|)[)oint to uses generally authorizes a mortaage . . 38 mortgage under such power total execution at law ib. contra in equity unless contrary intent appears power to cliarge with a particular sum does not authorise a mortgage execution of such power usual to superadd a power to raise a term implies a power to charge with interest 38 ,39, 176 38, 176, 177 39, 40 J 9 • 4(3 40 520 INDEX. MORTGAGES UNDER POWERS continued. power to raise a sum of money authorizes a mortgage . 41 to sell for a particular purpose, implies power to mort- gage .... 45, 400 to mortgage given to one qua executrix, confined to per- sonalty . . . .68 to mortgage tolls and toll houses, construction of 68, 69 chargte for children " in such manner," as one shall appoint includes power to mortgage . . 41 power to raise out of " rents and profits" gives a power to mortgage . . 45 may be confined to a raising out of "annual" profits by express words or implication . . ib. direction to raise, and then to convey, will not confine it to the annual profits . . .46 under circumstances a mortgage may be made, though confined to "annual" profits . . ib. soif estate otherwise charged . . 46,47 if no time for payment limited, Court will not control direction to raise out of annual rents . 72 power to lease for lives or years does not authorise a mort- gage ..... 75 form of, in acts of parliament, generally prescribed 73 what estates mortgages under powers shall take precedence of, what not ... 72, 73, 310 a mortgage under trust or power to mortgage or sell will not prevent trustees from afterwards selling if money not all raised, semble . . . .73 mortgagee under such power cannot compel trustees to sell to pay himself off . . .74 power to mortgage to pay such debts as personal estate shall be insufficient to pay, mortgagee under, must be satisfied of the deficiency and ascertain tiie amount . . 407 though there be power to give receipts 407, 408 contra in case of a trust to raise to pay such debts, &c. 405 See Mortgages by Trustees, — PoaveRj — Trust and Trustee. MORTGAGE-DEED should contain the condition . . 7 should recite collateral securities . . 22 geoerally contains covenant that till default mortgagor shall enjoy , . . . 77 should contain a grant of deeds, if not delivered over . 100 should contain covenant to insure against fire on mortgage of houses ..... 101 containing covenant to pay, may be retained by mortgagee, though ordered to deliver up other deeds in his possession 106 See Discovery, — Mortgages by Trustees, — Lease and Leasehold. MORTGAGE MONEY may be sued for independent of interest . . 233 part of, cannot be recovered in debt without averment that rest is paid . , . . . ib. cannot be paid off after condition forfeited without six months' notice .... 247,248,415 is a simple contract debt, though no bond or covenant 249, 250 how payment of, should be pleaded . . 391 INDEX. 521 MORTGAGE MONEY continued. payment of, need not be proTed in pleading a mortgage, unless fraud . • • • ^ • 29* mortgagee of real estate must see to the application of the mort- gage money, when .... 400 if the trust is to pay particular debts . . 402 but in such case not obliged to see whether more be sold than necessary • • • ' 403 as to prior specific charge, though there be power to give receipts .... 406,407 need not where trustees have power to give receipts ^ ^ . 400, 401 but such power cannot be exercised by continuing trustees alone where a trustee accepts the trust, and conveys over to them . . • 403 where the trust is to pay debts generally . . 401 though the sale be made by heir to whom trustees convey 403 where the trust is to pay debts and legacies . 401 requires time and discretion . 401,402 charge of debts, and subject thereto devise over, rule as to see- ing to application same as in case of trust . 404 mortgagee of chattels real not obliged to see to the application of mortgage money .... 408 but if fraud, &c. such mortgage may be set aside 408, 409 not after great length of time, and divers assignments ib, mortgagee may call in when he pleases . . 414 shall be presumed paid after twenty years' quiet possession by mortgagor, and no demand or payment of interest 418 contra, if the sum be large, semble . . 419 may be presumed paid in less time if evidence aliunde 419, 420 presumption of payment of, may be repelled ^ . 420, 421 mortgage money or debt may be forgiven by cancelling the mort- gage deed . . • . • 421 See Merger,— Notice, — Payment of Mortgages, — Personal Re- presentative, — Tender. MORTGAGE PROVISO.— S'ee Condition,— Proviso for Re- demption. MORTGAGEE who may be . . • • • 3 estate of, after condition forfeited at law • . 6 may acquire possession of the land by ejectment, when . . 78, 80, 160 attornment of the tenant . .78 may pursue all his remedies at once • . 85, 436 but will be restrained if he cannot put mortgagor in statu quo prius .... 85 or if ground to presume mortgage satisfied . 86 may pursue his different remedies successively . ib. where equity will restrain mortgagee from proceeding on bond or covenant after foreclosure . . ib* one default in condition entitles mortgagee to proceed for the whole sum . . • . 87 so if mortgagee agrees to let principal remain on punc- tual payment of interest . . 88 may sue on covenant to pay if mortgage defective 106, 107 522 INDEX. MORTGAGEE continued. is a simple contract creditor, though no bond or covenant 249, 250 may resort for payment to any of the funds comprized in the mortgage, or to mortgagor's real or personal estate 249 unless other incumbrancers or claimants prejudiced there- by, in which case equity will marshal . 271 — 274 wishing to recover rent must give notice to tenant 79 what rent he may recover, and how 79, 80, 157 — and see Addenda, entitled to the benefit of covenants entered into by a lessee with mortgagor before the mortgage • • . 80 cannot sue on covenants entered into with mortgagor after the condition forfeited . . . loi, 161 of a ship cannot recover earnings under contracts with mort- gagor .... 94 lease, subject to rent and covenants before he takes posses- sion . . . . .93 ship, how far liable for supplies, &c. furnished before taking possession. Qu. . . .95, 96, 97 takes estate, subject to incumbrances . . 108 party to an act of forfeiture may lose his mortgage . ib. entitled to the protection of equity against defective conveyance 104, 308, 309 as against whom equity will not supply defective mortgage 309, 310 under a power to lease for lives or years, will be assisted to the extent of the power .... 75 under a power to sell or mortgage cannot compel trustees to sell to pay him off . . . .74 is a purchaser pro tanto under 27 Eliz. c. 4. . 104, 377 his title not impeached by election of heir mortgagor to take another estate . . . .107 in possession, cannot be ousted till payment . . 199 may purchase the equity of redemption . . US stipulate for right of pre-emption . . 20 agree to enter on lands at a fair rent . . 151, 152 cannot contract for lease of mortgaged premises . 117 will be allowed nothing for receiving rents . 115,116 may appoint a receiver, and will be allowed his expences ib. opening a mine or quarry, does it at his own risk . 152 of chattels personal, should take possession 37, 321, 322 debts should give notice to debtor, and how . 333 may assign over mortgage . . , 128 of stock, may sell and pay himself , 152, 153, 434 may redeem prior mortgagee . . . 191 though equity of redemption lost to mortgagor under 4 and 5 W, and M. . . . .211 interfere in all actions touching the land . 97 pay rent to landlord to save forfeiture of lease . ib, cannot dispute mortgagor's title . . . 100 insist on mortgagor's rebuilding premises burnt, semble 101 may gain settlement in parish, when . . 103 be elected M. P. after seven years' possession . ib. in possession, may vote for county members . 103, 104 when entitled to costs, when not 131 — 134, 437 >\ ill be allowed full costs . . 135 INDEX. 523 MORTGAGEE continued. when prevented from claiming interest, from what time, and when not ... . 245—248 what acts on the part of, will keep equity of redemption on foot 206—209 how he may plead length of possession on bills to redeem 210, 211 how he should plead his mortgage . 389,390,391 of legal estate, with notice of mesne, assigning over to puisne, situation of . , . . 305, 306 prior, having notice of second, 'and assigning over to purchaser, purchase money sinks so much of his mortgage, when 364, 365 first, buying the inheritance, does not sink his own charge in fa- vour of subsequent incumbrancers . 365 need not search for judgments till just before execution 373 paying part of money, and then discovering an incumbrance, may retain residue and recover part paid . . ib. that in such case he is mortgagee pro tanto^ semhle . 364 under a trust to mortgage to pay such debts as personal estate shall be insufficient to pay, not obliged to see to deficiency, or ascertain the amount .... 405 contra, in case of a.power to mortgage to pay such debts, &c. 407 though there be a power to give receipts 407, 408 See Account, — Advoavson, — Bankrupt, — Copyhold, — Covenant, — Discovery, — Ejectment, — Infant, — Lasting Imi'Rovement,-Lease AND Leasehold, — Lunatic, — Mortgage Money, — Mortgages op Ships, — Priority of Incumbrances, — Registry, — Rent, — Stock, — Title Deeds, — Trust ard Trustee, — Usury, — Waste. MORTGAGOR who may be . . .3, 322, 323, 324 tenant at will to mortgagee quasi . 77, 78, 158, 159 tenant at sufferance or will to assignee of mortgagee . 159 conveyance by, of his equity, no determination of his will ib. entry of his heir or devisee no disseisin of mortgagee 159, 160 not entitled to notice to quit . . . 78 may stop proceedings by mortgagee on paying money into Court, under 7 Geo. 2. c. 20 . . . 85, 86, 88 may set up legal estate against mortgagee in ejectment 160, 161 taking out error on judgment on covenant to pay, must perfect bail . . . . . . 162 not entitled to emblements as against mortgagee . 78, 158 cannot commit waste . . . 105,106, 162 may cut underwood at usual times . . 105,162 retain all rent received by him . . 92,160 unless guilty of fraud in receiving . . ib. cannot alone grant a valid lease . . . 161 liability of, contracting to grant a lease . 161, 162 of ecclesiastical leases, having a reversion in him, may renew 94, 164 entitled in foe, may let the interest run in arrear . 239 will be allowed payments to mortgagee without notice of assign- ment .... 128,130,416 bound by recital of money due if party to assignment 129, 130 may be bound as to money due by acts subsequent to assignment 130 giving notice to pay may ap[)oiut time and j)lace . 247, 417 will be safe in paying mortgage money, and taking possession of the mortgage deed . . , 416 524 INDEX. MORTGAGOR continued. See Bankrupt, — Chattels Personal, — Ejectment, — Equity of Re- demption, — Fine, — Fokeclosure, — Mortgagee, — Recovery, — Re- demption. — Redemption, Bill for, — Stock, — Tenant in Tail, — Trust and Trustee, — Usury. MORTMAIN money secured by mortgage cannot be devised to a charity 141 money on turnpike security within the mortmain act . 165 legacy to discharge a mortgage on a charity, void under mort- main act ..... 275 See Charitable Use. N. NOMINE PCENJE interest reserved at 4| per cent., with agreement to pay 5, if not re- gularly paid, nomine pcBnoe^ and will be relieved against 224 contr^, if after lesser rate become due mortgagor agrees to make satisfaction for forbearance . 228, 229 interest reserved at 5 per cent., with agreement to take 4^, on regular payment is not, sed qucere . . 224 NOTICE mortgagee's having notice of occupancy is not evidence of his consent to a lease granted by the mortgagor . 81 of intended sale, should be given to mortgagee when an estate is to be sold subject to mortgage on an extent . 164 subsequent incumbrancer should give notice of his incumbrance to prior mortgagee . . . .194 but not obliged to do so . . . 304 mortgagee entitled to six months, before redemption after the condition forfeited . . . 198 to pay off mortgage money, when requisite, and how it may be made .... 247,248,415 of an incumbrance prevents tacking . . 288 — 363 or acquiring a priority over it . . . 363 of second mortgage, purchaser or mortgagee having, must take subject to the first . . . 366 contra, if two first be equitable securities . ib, or in case of judgments . . i&, of prior incumbrance, efifect of, when trustee or first mortgagee assigns over to a subsequent incumbrancer . 304, 305, 306 of judgment not properly docketed will bind . 311 how notice should be given . . 333 that title deeds are in another person's hands, notice of his claim 340 to charge a mortgagee or purchaser with effect of, at what time it must be given or had . . 363 to whom it must be given . . 367 to agent, &c. must be in the same transaction : ib. exceptions to this rule . . 368, 369 what shall be sufficient constructive notice . 370, 371, 372 on a purchase of copyholds . . . 373 lis pcndensy when . . . 384, 385 345. , et seq. 372 356 372 34 H , 356 380, et seq. • ib. 385 INDEX. 525 NOTICE continued. what is not of itself sufficient notice registry of deeds so ia Ireland or the colonies record of judgment inrolment of bargain and sale so of deeds in the colonies commission of brankrupt act of bankruptcy . . , decree in Chancery of an act which is not of itself notice, binding, as of deeds which ought to be registered or enrolled, but not registered, or improperly registered 349, 350, 355, 356 a judgment, though not docketed . 311, 372 a bargain and sale not inrolled . . 34S an act or commission of bankruptcy . . 380 a decree in Chancery .... 386 of particular facts, effect of of a father having power to appoint to children, making an exclusive appointment to effectuate mortgage 375 mortgagor holding the property as a trustee . 376 a term assigned to attend, according to certain uses ib. assigned to attend the inheritance generally 377 a voluntary settlement . . . ib. a conveyance or devise for payment of debts 378, 379 want of, in original purchaser or mortgagee will protect all assignees claiming under them .... 387 so of land given to a charitable use, specified in 43 Eliz. 389 in an assignee of mortgagee, will protect all subsequent assignees 387 contra, if first mortgagee had notice, under 43 Eliz. 389 in any intermediate assignee will protect last assignee . 388 want of, cannot protect as against the legal estate . ib. how it must be denied, in pleading a mortgage 392, 393, 394 not absolutely necessary to deny, in pleading . . 395 See Decree in Chancery, — Judgment, — Lis Pendens, — Registry. NOTICE TO QUIT mortgagor not entitled to . , . 78,160 must be given to a tenant who holds from year to year at the time of the mortgage . . .80 need not be given by mortgagee to a tenant, claiming under the mortgagor, after the mortgage . . . ib. so assignee of morlgngce need not give . . ib. P. PARLIAMENT mortgagee in possession seven years may be elected M.P. 103 may vote for county members 103, 104 mortgagor in possession may vote for county members . 163 mortgagor may be elected M. P. unless mortgagee have been seven years in possession . . . iO, PAROL mortgage debt may be assigned or forgiven by parol. Qu. 130, 131, 421, 422 2 526 INDEX. PAROL continued. agreement by, cannot be made respecting mortgage money ^semble 185 declaration by mortgagee will sometimes keep open equity of redemption .... 209 rate of interest may be altered by . . . 226 agreement by, not sufficient to open foreclosure . . 447 See Assignment, — Parol Evidence. PAROL EVIDENCE not sufficient alone to shew a conveyance seemingly absolute to be a mortgage .... 8 but if any fraud in mortgagee, it may be admitted 7, 8 may be admitted if in corroboration of other evidence 8, 9 ivhen admitted to keep open mortgagor's equity of redemption 209 admissible to shew contract usurious . . . 222 not admitted to shew that personalty is to be taken exempt from debts .... 255 •where admissible as to the estate primarily to be charged on mortgages by husband and wife, tenant in remainder, &c. 265,266, 267 PARTIES on a bill for account where there have been assignments without mortgagor's consent, mortgagor need not bring more than the last assignee before the Court . . . 150 tenant for life must be a party to a bill to redeem by re- mainder-man . . . .193 to a bill for redemption, who should be . 195, 196, 197 See FouECLOsuuE, — Personal Representative, — Redemption, Bill FOR, — Sale. PAYMENT OF MORTGAGES how the funds shall be applied in, where one mortgages for his own benefit . 249 — 257 where one mortgages, or joins in a mortgage or an as- signment of a mortgage, or covenants to pay, for the se- curity of an assignee, or for the benefit of another per- son .... 257 — 268 where one purchases an estate subject to a mortgage 262, 263 where one makes a voluntary mortgage . . 269 where the same person is devisee of the mortgaged estate, and mortgagor's personalty, and dies without paying off 258, and see Addenda where an heir being put to election, mortgages one estate, and elects to take the other . . . 274 first mortgage will be presumed paid in favour of second mort- gagee, on the first mortgagee joining in a sale, when 364, 365 See Assets, — Contribution, — Devise, — Devisee, — Election, — Equity, — Heir, — Husband and Wife, — Interest, — MoRTtiACE Money, — Mortgagee, — Parol Evidence, — Personal Estate, — Priority of Incumbrances, — Purchaser, — Remainder-man, — Rent, — Surety, — Tacking, — Tenant in Tail. PENALTY, on statute of usury when incurred . , 219, 220 if money lent on Irish or West India mortgages be more than the value of the property, borrower subject to treble value of sum lent . . . 222, 223 See Nomine PcETf^. INDEX. 627 PERSONAL ESTATE of mortgagor, must be applied to pay off mortgages, in ease of the real .... 250,251 but not so as to disappoint debts, legacies, or widow's paraphernalia .... 251 may be exempted from being applied in ease of tlie. real, and how . . 251,252,254,255,256,257 Avhen it shall be the auxiliary, and the land the primary fund for payment of mortgages . • • 258 — 268 of a purchaser of an estate subject to a mortgage, shall be the primary fund for payment, where . . 262, 263, 264 on a gratuitous mortgage, or where personal estate has received no benefit, personal estate need not exonerate lands 269 See Custom, — Devisee, — Heir, — Paymext of Mortgages, — Per- sonal Representative. PERSONAL REPRESENTATIVE of mortgagee, always entitled to mortgage money 146, 147 when charge will subsist for the benefit of, on mortgagee's be- coming entitled to the land . 147, 148 if the purchase of an estate be set aside as redeemable, personal representative not entitled to the money . . 148 so if one devise a mortgaged estate as realty, personal re- presentative of devisee not entitled . ib. annuity for lives granted in consideration of a debt, personalty 149 of administrator, will be entitled if administrator mortgages a term of the intestate's . • • 167 may redeem mortgage • . • 190 of mortgagee should be party to bill to redeem . 195 need not on bill to redeem Welsh mortgage 196 of infant, will be entitled to mortgage redeemed out of his per- sonal estate .... 244 of infant, not entitled to timber cut on his estate, semble ib. mortgagor, must reimburse the heir . . 249 testator or intestate mortgaging for a debt of his own, must exonerate .... 268 may mortgage chattels personal . . . 408 unless bequest of, assented to . 409 See Foreclosure, — Lunatic, — Party, — Personal Estate, — Re- ceiver, — Redemption, Bill for, — Sale, — Tacking. PLEDGE what, as distinguished from mortgage and lien . 3 See Chattels Personal. PLEADING on a mortgage bond or covenant . ^ . 87, 233 of the mortgagee's pleading, length of possession in bills for re- demption .... 210,211 how a mortgage should be pleaded . . 389,390,391 as to denial of notice in pleading mortgages . 392, 393 cannot be after answer put in and decree . 394 not absolutely necessary to be denied . 395 when plaintiff shall be prevented from taking advantage of the defendant's neglect to deny notice . . ib. foreclosure sufficient plea to a bill of revivor by mortgagee 446 PORTIONS the time for vesting of portions under the controul of the settlor 48 528 INDEX. PORTIONS continued. shall vest in sons at twenty-one, and daughters at twenty.one or marriage, if any ambiguity in the settlement . 48 case where there was no ambiguity and portion, held not to vest in a daughter who died in her father's lifetime . ib. in vrhat cases a portion shall be held to be vested in a child who dies before the time allotted for the raising and payment 49 — 53 portions must be raised when they become vested, unless an in- tention appears that the period for raising shall be postponed 53 though the charge be on a reversion . . jh. what shall not be sufficient to postpone the raising to a period subsequent to the vesting . . . 5 4,55 what shall be sufficient to postpone the raising of a portion till the reversion falls into possession . . 35, 56, 57 if no time appointed for the vesting of a portion, semble, that it must be raised if a child attains a proper age, and disposes of it by will .... 58 but if uo time appointed for vesting, and a child dies before he or she wants a portion, and without having disposed of it by will, the portion of such child will sink or go over to the other children, according to the nature of the charge ib. if no time be appointed for vesting, but it be declared that the trustees shall within a certain time raise and pay though they may do it immediately, yet if child dies before the expiration of that time the portion will sink . . 59 not so if being a daughter, she marries and then dies within the time allotted for raising and paying . ib. See Interest, — Mortgages by Trustees, — Mortgages unueu Powers, — Power. POSSESSIO FRATRIS may be of an equity of redemption, semble . 180 POWER power to sell after default when proper to be inserted in mortgage deed . 17 should be accompanied by declaration that mortgagor's receipt should be sufficient . . . 18 mortgagee under such a power may sell without the mortgagor . . .18, 100 how conveyance by mortgagee under a power to sell should be taken . . .19 to appoint a sum provided for portions amongst children will not prevent the objects from taking vested interests on their births . . . . . 53 to father to appoint by will, will prevent the portions from being raised till his decease . . .57 a father under a power to appoint to children, cannot ap- point till a child wants a portion, so as to entitle himself as next of kin, if that child dies a minor . . ib. to raise out of " annual" rents, gives a power of leasing at rack rent ... . . 59 to raise by " demising," gives a power to lease on fine b^^ 75 to sell to raise money includes every method of raising . 59 to lend money on good and sufficient security authorizes a loan on land, but not on bond . . ,76 authorises a loan on leaseholds . ii>' INDEX. 529 VOWER confimied. to give receipts, how it should be worded in particular cases 405 When a mortgage may be made under apo«er, and for the constructioa put on certain powers, see Mortgages under Powers, — ArroiNX- MENTs, — Attorney, — Mortgage Money, — Receipt. PRE-EMPTION — 6'ee Agreement for. PRESUMPTION. — See Ejectment, — Mortgage Money, — Tenant for Life. PRIORITY OF INCUMBRANCES legal estate outstanding, or term attendant upon the inheritance will protect subsoquent mortgagee as against prior, of which subsequent had no notice, &c. . . 299, 377 will protect an incumbrancer against another, who has not so good a right to rail for an assignment . . 299 what shall confer a better right 299—303, 306, 307 as to its protection when trustee or prior mortgagee at the time of assigning has notice of intermediate incumbrance 304, 305, 30G ■vested upon express trusts will riot protect . 306, 376 will protect against a commission of bankrupt 380 — 384 will protect against an act of bankruptcy . 380 — 384 term for years, or outstanding estate cannot alter the order of the incumbrances, unless it car- ries the legal estate . . . 30C, 307 statute will protect . . - • 307 whether mortgage by deposit shall be preferred to claim of ven- dor for purchase-money unpaid. Qu. . . ifj. equitable incumbrancers by mortgage statute, Sec. paid in order of time ♦ . . . . 308 mortgage by defective conveyance will be preferred to claim of creditors under devise to pay debts . . . . 2&. under a commission of bankrupt . . . ib. though the creditors obtain judgnients . . 309 Qu. as against judgment creditors, from the first . ib. will not be supplied as against subsequent purchasers or mortgagees without notice . . 309, 310 unless claiming as volunteers . . 310 mortgages of tolls, no priority between ... 69 mortgage under power, its priority . . 72,73,310 recognizance, from what time it takes priority . 310,311 judgment, from what time it takes prioiity . . 311,313 will not protect simple contract creditor by agreement subse- quent . . . .312,313 notice of second morlgnge to a third mortgagee will preserve the priority of the first .... 3G6 contra, if the two first i)e equitable securities ib. notice of subsequent judgments will not preserve the priority of a former judgment creditor as against |)iirchascr . ?7j. See Chattels Personal, — Fraud, — Notice, — Registry, — Tacking, — Title Deeds. PROVISO FOR REDEMPTION in mortgages how generally made ... 5 eq[uity will relieve again«t a restricted condition to redeem G 2m SaO INDEX. PROVISO FOR REDEMPTION continued. generally contained in the nvortgage deed . . 7 but may be in a separate instrument . . ib. this mode not countenanced . . . ib, where equity will not relieve the mortgagor after forfeiture of the condition . . . 10, 11, 12 what shall be considered an agreement to repurchase, as dis- tinguished from a proviso to redeem . . 12, 13, 14 one default in payment total forfeiture . . 87 PURCHASE. — See Conditionai- Purchase, — Purchaser. PURCHASER borrowing money to complete, how the mortgage shouldbe made 26, 27 of an estate subject to a mortgage, makes his personal estate 2G4 the primary fund for payment, where . 262,263,264 of part of an estate in mortgage will be indemnified out of residue ..... 271,272 having paid part of purchase money, and discovering an incum- brance is a mortgagee pro tanto^ semhle . . 364 of estate subject to two mortgages, may be answerable for the application of the money, semble^ and when . . 365 R RECEIPT production of the mortgage deed sufficient evidence of the debt 391 power to give, by trustees cannot be exercised by continuing trustees where a trustee conveys over to them after accept- ing trust .... 403 power to give should be inserted in trust deeds, and how to be framed in particular cases . . 405, 406 See Mortgages under Powers, — Mortgage Money, — Pom'ek. RECEIVER if tenant for life prevents trustees from mortgaging by refusing to shew the deeds, Court will appoint a receiver of the rents 72 how a receiver of mortgaged premises is appointed . 81 when the Court will appoint a receiver, and who may have a receiver . . 82, and see Addenda, mortgagee of legal estate cannot have one appointed by Court, 82, and see Addenda, receiver will not, in general, be directed to keep down interest of prior incumbrance, unless the mortgagee refuses to enter 82 for a variety of incumbrances cannot be discharged without the consent of all . . . . ib. his possession cannot be disturbed without leave of the Court ib. whether an order to examine pro interesse sua necessary before leave to bring an ejectment where receiver is in possession. Qu. 83 caution on a mortgagee's appointing a receiver . 116 appointed by Court embezzling, loss must fall on mortgagor 165 appointment of, to keep down interest during infancy will not vary the rights of real and personal representatives 239 RECEIVER GENERAL OF TAXES.— 6'ee Fraud. RECITAL of money due in assignment will bind mortgagor an^ all parties 129, 130 will keep open the equity of redemption 208 1 INDEX. 531 RECOGNIZANCE from what time it takes effect . 9in •?ii RECONVEYANCE ' ' ''^' ''" mortgagee not obliged to reconvey immediately on paymei\t 41G not necessary where proviso is for cesser and morfgago money paid accordingly ... ' aoc^ JIECOVEIIY * * - by tenant in tail after mortgage for years will let in the mortgage 42 unless had under direction of Court . . . 43 by issue in tail will not confirm ancestor's mortgage ib. if mortgage be in fee, issue in tail cannot suffer a recovery with- out previous entry on lands . . . /^, whether equitable tenant in tail who mortgages in fee without fine or recovery, where the whole legal fee is in trustees, can afterwards suffer a recovery without the mortgagee 43, note, by mortgagee will not bar mortgagor . . .119 REDEMPTION who may redeem . . . ino 194 211 subsequent mortgagee, though equity of redemption lost, to mortgagor under 4 and 5 W. and M. . . oil ■bankrupt's assignees cannot institute suit to redeem without leave of creditors . . . .190 claimants under settlement let in to redeem in the order they stand . . . . . 193 second and third mortgagees let in to redeem according to order of time . . . . . /^^^ person coming to redeem must shew a legal title . 194 subsequent incumbrancer not a party to foreclosure, may re- deem notwithstanding . . . 19} 441 unless his incumbrance l)cgan after suit to foreclose 1 94, 1 95, 440 surety mortgaging his estate may compel his principal to redeem 195 will not be decreed under bill for sale : but, if proper case stated, plaintiff may amend . . . 197 jgj;; mortgagor cannot compel without giving six months' notice I9s or paying six months' interest in advance . . ^i,. submission to by mortgagee prevents his questioning mortgagor's right to . . . . . 209 See Equity of Redemption, — Escheat, — Remainoer-mav. REDEMPTION, BILL FOR, plaintiff in, cannot stay proceedings till validity of mortgage tried at law . . . . .195 who should be parties to . . . 195,190 197 on a bill by mortgagor . . -195 remainder-man . . jgg creditor of bankrupt . . {(,. executor of testal*)r . . /^, subsequent mortgagee or incumbrancer 196, 197 devisee of mortgagor . . -197 on bill to redeem a Welsh mortgage . . igfi where a mortgagee has conveyed to uses in settlement ib. where tlie equity of redemption has gone to different persons ... . 197 defendant in cannot object that bill does not state valid convey- ance to him . , . . , J gy parties in, entitled to costs from mortgagor . ijb. 2 M 2 ^32 INDEX. REDEMPTION, BILL FOR, continued. decree in, is that mortgagor shall redeem, or stand foreclosed 200, 425 plaintiff in, cannot have time for payment enlarged 199, 425 of chambers in an Inn of Court, where to be brought 199 will be stayed, if the defendant be an absent ambassador 200 w ill be dismissed if money not paid on day appointed 201, 425 dismissal of, for non-payment, operates as foreclosure 200, 201, 425 non-prosecution does not prevent second bill to redeem . . . 201 how a mortgagee may plead his length of possession in such bills .... 210,211 See Pleading, — Redemption. REGISTRY mortgage deed of ship void for want of registry, mortgagee may still sue on covenant to pay . • • 107 reasonable time allowed to comply with requisites of ship registry acts . . . • • 321 what deeds and judgments must be registered 342, 343, 345, 346 appointment under a power must . . 343 the registry acts must be completely complied with 343, 344 exceptions in the registry acts . • 344, 345 how they apply to mortgages of leases falling under either of the exceptions . • • ib. of a deed is not sufficient constructive notice to prevent tacking 345, 349 or to make mortgagor paying to mortgagee, pay over again to assignee of the mortgage . . 34G of an equitable incumbrance not sufficient to postpone a subse- quent purchaser having the legal estate . . 346,347 contra, in Ireland . . . 354, 355 notice of deeds which should be registered binding 349, 350 so in Ireland or the Colonies . . 355, 356 deeds must be registered immediately . . 350 time allowed for registering wills . . 351,352 acts for, how they affect judgments . . 352 inter se in the North Riding of Fork . 356 under the other registry acts • ib- in Ireland . . . 357 all deeds and judgments in Ireland must be registered 353, 354 prior mortgagee cannot tack subsequent advance as against registered deed under the Irish act • 355 order of payment under statute of Anne where there is a mort- gage not registered, a judgment registered, and a second mortgage registered. Qu. . . . 357 memorial of satisfaction should be entered up on payment of mortgages in register counties . . 352,424 See Mortgages of Ships. RELEASE of " all the mortgagor's interest" to mortgagee on a mortgage for years passes only a life interest . . 117 Secus, on a mortgage in fee . . . ib. a direction to the tenants to attorn is not sufficient to convey the equify of redemption . . . ib. INDEX. &33 REMAINDi:il-MAN cannot redeem till tenant for life has refused li)% 193 liow he may compel tenant for life to redeem . 193 has a claim on tenant for lifo and his representatives for interest unpaid during his possession . . • 237 joining to let in a mortgage, does not make it his own jyersonal debt . . . . . 208 though he afterwards upon an assignment cove- nant to pay . . • i^- joining to let in a mortgage entitled to have the lands exonerated ih. bound by decree of foreclosure against tenant in tail 4 12 though foreclosure never made absolute if tenant in tail releases . . • • ^^'• RENEWAL.— See Lease AND LeaseuolDj— Mortgaoee,— Moiir- GAGOa. RENT morgagee entitled to arrears of, in the hands of a tenant after notice to pay to him ... 79 may maintain action for arrears of, in the hands of a tenant after notice . . 79, IGO but cannot recover arrears of, by ejectment 79 mortgagee may recover arrears of, in tenant's hands up to the time of the demise in ejectment . . 80 in receiver's hands not liable to pay olT a mortgage, unless so expressed in the order appointing receiver . 92 past rents received by mortgagor cannot be recovered by mortgagee .... 92, 160 unless mortgagor guilty of fraud in receiving them zO. cannot be legally reserved to mortgagor after condition forfeited IGl REPAfR how far mortgagee obliged to . . • 117 REVERSION. — Sec Inteuest, — Maintenance, — Poxitions. REVOCATION when a mortgage shall be of a prior will 39, 169, 170, 176 a mortgage for years and line sur cognizance de droit come ceo, &c. is not, semble . 170, and sec Errata and Addenda. See Settlement, Voluntary. S. SALE of mortgaged premises may be made under power to sell with- out mortgagor • . . . . IS, loo by mor(giii;or, where mortgai^ee has right t>f pre.eni|)(i()n 20, 21 under geiural order in banUiuptcy liable to auction duly S.'i of mortgaged premises, when it should be prayed instead of fore- closure if mortgagee be a co-executor to mortgagor . 420 the estate be a deficient security, semble 426, 427, 42.S mortgage be of a dry reversion . . 429 an advowson . 111,112,429 cannot be prayed without praying an account of personalty 42H unless heir and executor same person . . 429 in bill for, both heir and executor of mortgagor must be parties 439 534 INDEX. SALE continued. sale or foreclosare should be prayed against an infant nioiigagor In the alternative . . . 429 430* in decree for, against an infant, he wilt have day to shew cause, semble . . . . . 43J remainderman may have, of mortgaged premises, if rents insuf- ficient to keep down interest . . , 23T See Bankrupt, — Conditional Purchase. SALE, BILL FOR. — See Foreclosuke, — Personal Representa- tive. SEQUESTRATOHS possession of, cannot be disturbed without leave of Court ?,S- money in the hand of, may be applied to discharge a mortgage ib. may redeem a mortgage , , . jgj SETTLEMENT, PAROCHIAL mortgagee may gain a settlement, when . . 103" mortgagor gains a settlement, when . 166,167 SETTLEMENT, VOLUNTARY revoked by mortgage /jro tanto . 1G4, 168, 16& mortgagee claiming under, and asserting to be bona fide for va- luable consideration, forfeits whole year's value 105- claimants under may redeem . . . 190 will be set aside in favour of a mortgagee 104, 377 contra, if the volunteers have sold for value 378 unless the conveyance by the volunteer be defective z>. See Conveyance upon Trust to sell, — Fraudulent Conveyance. SHIP. — See Mortgages of Ships. STOCK advance of money to be replaced in stock, fixing the amount by the market price of day, not stock-jobbing 216, 217 agreement to replace stock, or pay money at the option of bor- rower, good .... 217 contra, if the choice rests with lender . . ?fr. borrower under a contract to replace stock, or pay money at his own option, cannot take advantage of his own default, but must make good fall in market . . ib» if borrower neglects to replace stock, and market rises, lender may recover rise as damages . . 217,218 if cause in Chancery, Court will give the rise in market 219 stock taken at a greater rate than market price of day, transac- tion usurious .... ib. mortgagee of, to what extent he may prove on bankruptcy of mortgagor .... 275 mortgagee of, may sell and repay himself 152, 153, 434, 435 See Chattels Personal, — Usury. STATUTE STAPLE AND MERCHANT creditor under may redeem . . . 191 creditor by, buying in a mortgage, cannot tack . 290 will protect a subsequent mortgagee . 307 See Tacking. SUBPCENA is the process against an infant after twenty-one, to shew cause 433 service of, upon clerk in Court, when sufhcient 433, 434, note. SURETY may compel his principal to disencumber his lands 195, 268 INDEX. -535 SURETY continued. mortgagee may proceed against, after having proved as general creditor in bankruptcy against principal • 275 SURRENDER of a mortgage term, what shall be . . 42 J will be presumed on ejectment when . * i^' See CopYitoLD. T. 89 TACKING rule with respect to, under 7 Geo. 2., same at law as in equity interest on mortgage money, may be tacked as against all per- sons . • • • ^/ujj,// costs may be tacked as against all persons . . ib. arrears of rent paid to bankrupt's landlord cannot be tacked without order of Court . . . 277 assignee of mortgage buying for less than due, may tack the re- sidue due against mortgagor or his representatives ^ . 278 not as against a subsequent incumbrancer of whose incum- brance he has notice . • 278, 279 contra, if he has no notice of subsequent incumbrance 279 so if subsequent incumbrancer refused to purchase at the undervalue semble . . ib. agent, trustee, heir, or executor buying for less than due, cannot tack residue . • • '^« so of guardian to an infant . . 280 bond incumbrancer by mortgage, judgment, or statute may tack, as against heir or executor of mortgagor ib. devisee of mortgagor . . 281 cannot tack, as against mortgagor . 280 creditors under a devise to pay debts . 281 though by simple contract . ib. he sues the executors and obtains judgment . . 295 but if executor pays, need not refund ib. creditors of a superior nature . 281 other bond creditors . . ib. purchaser of equity of redemption 282 mortgageeof copyholds cannot tack . . ib. wo dillerence whether mortgagee claim it as obligee or as- signee of obligee .... ib. moifgagee of lease may tack as against mortgagor . 283 Simple contract debt mortgagee may tack as against executor of mortgagor . • . 283 cannot tack as against creditor of mortgagor coming io redeem . ib. purchaser of equity of redemption . ib. creditors under a trust deed . 283, 379 under a decree for creditors to come in 283 under a commiibion of bankrupt 284 336 J.VDEX. TACKING continued. mortgagee cannot tack simple contract debt as against creditors under a devise to pay debts . 370^ though he takes a mortgage for his simple con- tract debt from the trustees . . ib. two estates mortgaged to the same person by the same or dif- ferent instruments for the same or different sums of money may be tacked or held together till both redeemed, as against mortgagor and all claimants under him 284, 285, 280 as against surety of mortgagor, in one mortgage only 28& incumbrancer redeeming has same equity against persons coming to redeem him . . . 285 this tacking will be allowed, though one security be insuf-, ficicnt .... 286 or one security defective in title . . ib. will not be allowed if one mortgage be from tenant for life, and the other from remainder-man ib. two mortgages, one of realty and the other of personalty, rule the same in tacking as where two different estates are mort- gaged . • . . . 284 further advance made by a person having a mortgage may be tacked as against all persons of whose incumbrance mort- gagee has no notice .... 286 but then the agreement to charge must be in writing 287 and the further advance must be made to a person hav- ing right to charge . . . ib. made on the faith of a clause to secure further advances may be tacked as against subsequent incumbrancer, when .... ib. statute, judgment, and recognizance a first mortgagee advancing money upon, or taking in may tack as against intervening incumbrances 288, 289, 294 creditors under a commission of bankrupt . . 289 a first mortgagee tacking, not confined to penally in judg- ment .... ib. mortgagee having a prior judgment may tack 289, 290 how, why, and to what extent a mortgagee may tack a prior judgment or statute . . 290,291,292,294 judgment cannot protect but one moiety . . 293 two judgments may protect whole, and when . 293,294 statute will protect whole . . . 298 mortgagee of copyholds cannot tack judgment . 290 cannot tack if cognizor not seised at the time of confessing the judgment . . 295 cannot tack if he holds mortgage and judgment in different rights . . 297 mortgage creditor by statute or judgment cannot tack . 290, 294 unless the lands be actually extended . • 291 mortgagee may tack, though bought in pendente lite ib. at the time of making the sub- sequent mortgage mortgagor had no estate . 296 INDEX. 537 TACKING continued. mortgage mortgagee cannot tack if he holds them in different rights 296 comprising only part cf lands in subseciuent mort- gage, protects that part only . . 29S more will protect the whole . " . iU. can bene protection till condition forfeited . . ib. rule of tacking not confined to one incumbrance . . 297 note holder with promise to mortgage may tack as mortgagee ib. cannot be unless prior incumbrance carry with it the legal estate ..... 306 lis pendens does not prevent tacking by f^ubsequent incum- brancers .... 385 will prevent a prior incumbrancer taking in a sub- sequent from tacking . . . ib. iSee Chattels, Personal, — Fraud, — Notice, — Piuority of Imcum- BRANCES, — Registry, — Title-Deeds. TENANT AT WILL mortgagor in possession is to mortgagee quasi 77, 78^ 158 how the estate of a mortgagor dili'ers from that of a tenant at will . . . . I58j 159 See Mortgagor. TENANT FOR LIFE claiming under mortgagee, entitled only to interest on mort- gage money . . . .142 representatives of, entitled to arrears of interest up to time of his death .... 143 must keep down interest during his time . 234, 235 up to the day of his death . 235 must pay arrears of interest accrued due before his estate cam-e into possession . . . 235, 236 may have the estate sold, if profits insufficient to answer the in- terest, and residue invested . . . 237 mortgagee purchasing his estate must keep down interest ib. paying off a charge or redeeming, when it shall be presumed to be for the benefit of the estate . . 240,241 may repel any presumption to exonerate by act in his lifetime 241 . TENANT FOR YEARS.— 5'ee Lessee. TENANT IN TAIL who has mortgaged without acquiring the fee, will be decreed to make good title to the mortgagee ... 41 Semble^ that if bill prayed it. Court would order fine or re- covery . . . . .42 especially if mortgage deed contaitied covenant to fur- ther assure • ' • . . ib. but such order would not bind issue in (ail . ib. mortgage by tenant in tail without covenant to further assure if mortgagor afterwards becomes bankrupt, will be good only during his life .... jb. but if the mortgage contained a covenant to assure, as- signees will be directed to convey to the mortgagee ib. fine or recovery by tenant in tail after a mortgage will let iu the mortgage • • . . ib. unless had uuder direction of Court . 43 538 INDEX. TENANT IN TAIL conimued. fine by issue in tail will let in reversion, and make good the ancestor's mortgage .... 43; contra, of a recovery by issue in tail . . /fit if mortgage be in fee, issue in tail cannot suffer a recovery "without making entry on lands . . . ib, ■whether equitable tenant in tail who mortgages in fee without fine or recovery, where the whole legal fee is in trustees, can afterwards suffer a recovery without the mortgagee 43, note may be, of an equity of redemption . . . jsi'; first, under settlement must be party to bill to redeem . 196 need not keep down interest of mortgage money .. . 238 unless prevented by act of parliament from barring the remainders . . . 239 infant tenant in tail must keep down interest of incumbrances, unless otherwise unprovided for . . . 238 paying off charge on an estate will exonerate . . 241 but this presumption may be repelled, and when . 241, 242-. keeping down interest, or purchasing mortgage, his representa- tives will have no claim on the estate for the interest . 242. tenant in tail in remainder joining to let in a mortgage, does not make it his personal debt . . . 26&> though upon an assignment afterwards he covenants to pay . . . . . /&. ^e Remainder-man. TENANTS IN COMMON if two mortgagees purchase the equity of redemption, or fore- close, they shall hold as tenants in common » . 1'44' ►See Joint Tenancy, — Title Deeds. TENDER when it shall cause interest on mortgage money to cease 246, 247, 24& cannot be made after condition forfeited, without six months' notice to mortgagee .... 247 or payment of six months' interest in advance, se/nfi/e 248 unless mortgagee demands payment . • 415- who may make . . . 410,411 to whom it must be made , , . .411 where mortgage is assigned . . 411,412 must be made to the person where no place is appointed 413 but if mortgagee out of the kingdom, mortgagor may enter ib^ consequence of this to first mortgagee if mortgagor mort- gages a second time without notice . . ib. where time and place for, appointed . . 414 where the condition is lo pay at the end of six months . ib. mortgagor entitled to a delivery up of title deeds on payment 416 bank.notes a good tender, when . . . 417 debt remains notwithstanding tender and refusal . ib. unless upon a voluntary mortgage . . ib^ TIMBER J^ ^ b cut on infant's estate will not go to his personal representa- tives, semblc .... 244 TIME, — See Covi^jant, — Foueclosuue, — Redlmpiiow, Bill t oh. INDEX. 331> TITLE DEEDS mortgagee should always have the possession of, . 100 may refuse to shew till paid off, . 106, 397, 416, 42M should not shew them to strangers, . . 106 tenants in common may be compelled to shew to each other ib. possession of, tantamount to assignment of term . 299, 30O not as against bona fide mortgagee of the legal estate where the first mortgage is by deposit . . 341 Qu. as against purchaser from remainder-man . 301 non-possession of, where it shall not postpone a mortgagee 336,337, 338, 341 where it shall . . . 335, 336, 337 Court will not compel a mortgagee to discover or take them from him . . . . 338, 339, 397, ^9^ though mortgagee guilty of fraud in obtaining them 396 though the mortgage be made by a tenant for life represent- ing himself to be seised in fee . 339, 397, 398 contra, as to discovery, if remainder-man submit to redeem .... 340 though on a bill to redeem . . . 397 on motion for a sale . 397, and note though the plaintiff reply, and insist on mortgagee proving his answer .... 398 contra, if plaintiff falsifies, or mortgagee does not deny facts of notice charged by bill . 399 though the mortgagee not in possession of land . 339 mortgagee cannot retain them if he advances money with notice of defect in title as against person entitled . . . 106 if he takes his security from a person holding them for a particular purpose .... 340 notice of their being in another person's hands, notice of his claim .... 340,341,371 See Attouney, — Discovery, — Mortgace Deed, — Thust andTuustee. TRUST AND TRUSTEE trustees to raise portions must raise when they become vested, unless an intention shewn that the period for raising should be postponed . • • .53 although the fund charged be a reversion . 54, 53 trustees under a will to raise money to pay debts conveying to heir, heir a sufficient trustee to mortgage . 70, 403 but if heir misapplies money, trustees answerable 70, 403 who wish not to be answerable for misapplication of money, should disclaim ..... 70 if both realty and personalty subject to a charge, trustees ought not to mortgage till personalty and rents of lands have been applied . .... ib. in what manner trustees should exercise a trust or power to raise 71 sometimes the person entitled to the estate subject to the mort- gage, or the tenant for life, may have tiie charge raised by mortgage in preference to any other mode . 71, 72 trustees to mortgage allowing one to enter and receive rents will be answerable for the rents so received . . 7b trustees having power to lend money on " real security," and lending it on leuiiehold precaution . . 76 540 INDEX. TRUST AND TRUSTEE contimml. trustees for infants cannot invest monGy on mortgage, without order of Court, which order Court will not, in general, make 7t> acceptance of a mortgage is sometimes accei)tance of trust 116 situation of trustee assigning over term to subsequent incum- brancer . . . 304, 305, 306 trustees delivering over title deeds to tenant for life, and thereby enabling him to mortgage, not chargeable, unless privy to frau- dulent intent .... 340 See CiiAUGE, — Interest, — Mortgages by Trustees, — Moutg-ages L'NDEll Po>VEKS, MoRTGAGE MoNEY, PoRTIONS, IIeCEIPT. u. UNDERWOOD mortgagor may cut at usual times . . 103, 162^ USURY any advantage for the loan of money beyond 5 per cent, per ann., usurious .... 213, 214 if legal interest only be reserred usurious taking does not avoid the contract .... ib. commission on agency of bills and bankers' allowances may be secured by a mortgage without usury . .215 an allowance for extraordinary trouble may be allowed beyond legal interest under original contract, senible 213, 21S if principal money hazarded more than 3 per cent, may be made 216 on a loan of stock, if borrower agree to replace the stock, or pay money at the option of lender^ usurious . 217 money to be replaced in stock taken at more than the market price of the day usurious . . • 219 clauses of the statute of usury which avoid the security, and which subject the ofl'ender to the penalty, distinct . ib. mortgagor paying money on an usurious contract may recover the surplus beyond legal interest . . 220 borrower seeking to set aside usurious security must do equity, by paying money really due . . 220, 221 lender on an usurious contract cannot enforce security pro tanto 221 if borrower become bankrupt, usurious security absolutely void ib. usurious security void in hands of assiguee for value and bo7iu fide . . . . .222 parol evidence admissible to shew . . ib. agreement to pay compound interest not usurious, but will not be allowed . . . . 225^ See Ireland, — Penalty, — Stock, — West Indies. VIVUiM VADIUM what ..... 2 will be lost to grantor, when . . 202 VOLUNTARY SETTLEMENT.— 5'ee Settlement. INDEX. 541 w. WARRANT OF ATTORNEY wheu it accompanies a morte;age should contain a defeazance 23 See Defeazance, — Equitable Moutgage. WASTE mortgagee of copyholds may pull down houses, and build beKer to save a forfeiture . . • 103 mortgagor may be prevented from committing 105, 106, 162 mortgagee will be restrained from committing, in equity 118 See Mine, — Undeuwood. WELSH MORTGAGE what ..... 14 personal estate of mortgagee . . . 147 representative of mortgagee need not be a party on 1)111 to redeem an old Welsh mortgage, or new, scinble 196 may become irredeemable, w lien . . . 202 to be paid out of mortgagor's personal estate in the first instance 251 decree of foreclosure cannot be had upon . . 435 WEST INDIES mort'^a'^ees of property in, may sometimes have commission 1 1 5, 1 1 G bu* in Jamaica cannot have more than they pay to the factor 214 mortgat^ees of property in, allowed the benefit of consignment 215 so of a covenant to continue as consignee after the mort- gage debt paid . • • • ib. 6 per cont. interest may be reserved on mortgage of estates in the West Indies . • • .222 unless known to lender that money lent exceeds value of property .... ib. mortgat^es of property in, reserving 6 per cent, must be registered 222 more than 6 per cent, legal if allowed by the laws of the particu- lar island, and security executed there . 222,223 bond or covenant given as collateral security on mortgages in, good • • • 223, and see Addenda. law respecting West India mortgages same as English, unless under particular laws . . . 223 inrolment of deeds in, not of itself notice . 356 See Notice,— Penalty,— Registry. WIFE.— &e Covertuue,- Fine,— IIlsbanu and Wife. WILL mortgage money may pass by any will . 13i), 131 to pass mortgaged lands must be attested by three witnesses HO See Devise,—Fine,— Revocation. THE END. PRINIEB BY J. AN1> T. CLARKE, lib, ST. JOHN S-StJlAKE, LONDON. LATELY PUBLISHED BY JOSEPH BUTTERWORTIl AND SON, 43, FLEET STREET, LONDON. 1. A DIGEST of REPORTS in EQUITY; viz. ylmtnt- thei\ Ball and Beatli/, Brozc?!, Bud; Cooper, Cox, Daniel I, Dickem, Eden, Forrest, Maddock, Merlvale, Prlee, Rose, Schoales and Lefro?/, Swanston, Vesey, jun., Vesey and Beanies, Wightwicic, Wilson. By Anthony Hammond, of the Inner Temple, Esq. In two Volumes royal octavo, Price ^1. 18s. in boards. N. B. This Work contains all the points determined in the High Court OF Chancery during the last forly years, systematically arranged; and also a complete Digest of the Cuancery Phactice. 2. 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