(E) Redemption and Foreclosure. (What Fund liable.)

vance 5000l. at 4 per cent. on assignment of the mortgage, which accordingly, by indenture of 4th of June, 1725, was assigned to him, with proviso for redemption on payment of the principal and interest at 4 per cent.; and GS, for himself, his heirs, executors, and administrators, covenanted with W G, that he, his heirs, &c., or some or one of them, would pay to W G the said principal and interest, in manner therein mentioned. In 1779, G S agreed to raise the interest to 5 per cent., and by deed covenanted with the mortgagees, that the estate should remain a security for the 5000l., with interest at 5 per cent., and that he, his executors, &c., would pay such interest for the same. In January, 1782, G S died, the interest on the mortgage being in arrear for about ten months; and the bill was brought (amongst other things) to have the 5000l. and interest paid out of the personal estate of G, or at least the arrear of interest due at his death, and the additional 1 per cent. charged by the deed of 1779; but the Lord Chancellor was clearly of opinion, that the personal estate ought not to discharge the mortgage, the land being the primary fund. His lordship also thought that the interest must follow the principal, and that the contract for the additional interest, turning upon the same subject, must be in the nature of a real charge.

Shafto v. Shafto, before Lord Thurlow, Feb. 1786, 2 P. Wms. 664, n. 1; ||1 Cox, R. 207. So, Earl of Tankerville v. Fawcett, 2 Br. Ch. R. 57.

A real estate charged with a sum of 2001. as a bounty was holden to be primarily liable, though the personal estate was also subjected by the covenant of the donor.

Wilson v. Earl of Darlington, at the Rolls, Feb. 1785, 2 Cox's P. Wms. 664, n.; [1 Cox, R. 174.||

A leasehold estate had been mortgaged by the testator's father to N, for 65001., and had, subject to that mortgage, devolved upon him on the death of his father; afterwards the mortgage was assigned by the desire of the testator to H, who advanced him a farther sum of 1007. upon it, and the testator conveyed other estates as an additional security to the mortgagee. The testator then made his will, and thereby devised as follows:-"I give and devise to A and B, their executors, administrators, and assigns, all those my manors, lands, &c. in L, to have and to hold to them, from the time of my decease, for the term of 99 years, upon the trusts hereinafter mentioned." He then gave the real estate subject to the term, and, in default of issue of his own body, to the plaintiff for life, remainder to his first and other sons, in strict settlement, with remainders over, and afterwards declared as follows:-"I do hereby declare, that the term and estate, so as aforesaid limited to them the said A and B, &c., is upon the special trust and confidence, and to the intents and purposes following; that is to say, upon trust, that they the said A and B, &c. shall, out of the rents and profits, or by mortgage, assignment, or demise, of all or any part of my before mentioned manors, &c., or any of them, for all or any part of the said term of ninety-nine years, or otherwise as to their discretion shall seem meet, levy and raise so much lawful money of Great Britain as will be sufficient to pay and satisfy all the debts I shall owe at the time of my decease, my funeral charges, and all the legacies and sums of money given by me in and by this my will, and pay and apply the same accordingly. And my will and mind is, that after so much money shall be raised as shall answer the purposes aforesaid, together with all costs, &c., the said term shall cease and determine." He then devised as follows:-"I give and devise to my brother

(E) Redemption and Foreclosure. (What Fund liable.)

M B, his executors and administrators, all that the manor of East and West Deeping, holden by lease from the crown, subject to the yearly rent and covenants reserved in the said lease, and also subject to the mortgage thereon to N, for 65007.; but in case my said brother shall not be living at the time of my decease, then I give the said estate and premises, with the appurtenances, subject as aforesaid, to such person as shall be entitled to the freehold of my real estate at the time of my decease, by vitue of the aforesaid limitations of this my will." And towards the end of his will he devised as follows:-"Item, I also give all my household goods, and all other my goods, chattels, effects, and personal estate whatsoever, unto my said brother M B, if he shall be living at the time of my death; but in case he shall be then dead, I give and devise the same to such person as shall be entitled to the freehold of my real estate, under and by virtue of the limitations in this my will," &c. M B died in the lifetime of the testator, and the plaintiff became entitled under the limitations in the will to the real estate. And one question was, Whether the term bequeathed by the testator for payment of debts was liable to the mortgage debt on the leasehold estate? Et per curiam, with respect to the leasehold estate, the charge under which it came to the testator was prior to his purchasing it, and inherent in the estate, and the estate itself was left liable to answer it, and neither the personal estate, nor real estate, ought to be charged with that debt; for when a man purchaseth an equity of redemption, subject to encumbrances, that should be a real encumbrance following the land, and not a personal one. And the difference between an estate descended and one purchased was nothing, unless the circumstance of purchasing created the difference, but that afforded no argument. The question then was, Whether assigning the mortgage from N to H, and covenanting for payment of debts, altered the case, and made it the debt of the testator? and it was clear that it did not; for although where a man transferred a mortgage, and covenanted for the payment of the debt, according to the rule of law, he made it his own debt, and made himself liable to be sued upon that covenant; yet the case of Evelyn v. Evelyn, infrà, had decided, that though he might be at law liable, yet, while there were real assets sufficient for the payment of the encumbrance, they should be applied for that purpose; and it was to be understood, with respect to such transaction, that the party did it by way of accommodating the charge, and not of making the debt his own.

Duke of Ancaster v. Mayor, 1 Br. Ch. Rep. 454; and see 1 Mer. 223.||

Another question in the preceding case was, Whether, when the testator mortgaged an estate of his own as an ulterior security, that circumstance would create a difference? and it was held that it would not; for nothing made it his debt so effectually as the covenant to pay, for it did not create the debt, but only operated as collateral to the debt. A man mortgaged his estate without covenant, yet, because the money was borrowed, the mortgagee became a simple contract creditor, and in that case the mortgage was a collateral security; and if there were a bond or a covenant, then there was a collateral security of a higher species, but no higher by means of the mortgage merely; therefore having security amounted to nothing.

If one seized of White Acre and Black Acre mortgage the former, and then by will charge all his real estates with payment of his debts, and devise White Acre to A, and Black Acre to B, the devisee of the former shall compel the devisee of the latter to contribute. (a) On the like principle, if

(E) Redemption and Foreclosure. (What Fund liable.)

both estates had been comprised in the mortgage, and had been devised to different persons, they should have contributed.(b) The same would be the case if the estates in mortgage were freehold and copyhold, and descended to different heirs; (c) and if the estates be of equal value they will contribute equally.(d)

(a) Carter v. Barnardiston, 1 P. Wms.' 506. (b) Aldrich v. Cooper, 8 Ves. 390. (c) Ibid., and see Gwynne v. Edwards, 2 Russell, R. 289. (d) Ibid., and see Henningham v. Henningham, 2 Vern. 355; 1 Eq. Ca. Abr. 117.

Where the purchaser of an estate A, in order to secure the purchasemoney, executed a deed of mortgage of an estate B, by the latter part of which the estate A was also mortgaged as a further and collateral security, and the two estates afterwards came to different persons deriving title from the purchaser, it was held that the estate B was the primary security, and that estate A could not be resorted to till estate B was exhausted Marquis of Bute v. Cunyngham, 2 Russell, R. 275.||

Where L being seised in fee by descent of an estate at C, and other real estates both freehold and copyhold, by his will devised the estate at C, which was subject to a mortgage for 1500l. contracted by his ancestor, and also another estate, to be sold; and charged the same, and also his personal estate, (except 3007. due on bond, which was originally part of his wife's fortune, and specifically bequeathed to her by the will,) with his debts and legacies, and devised the residue of his real estate in trust for his brother B, in strict settlement, subject to a charge of 100l. a year to his wife upon the copyhold estate; and made his wife executrix: the question was, Whether, under this will, the personal estate of the testator should be applied in exoneration of the real, towards the discharge of the 1500l.? And it was held by Lord Thurlow that it should not; but that the same should come out of the estate originally liable to it. And this decree was afterwards affirmed in the House of Lords.

Lawson v. Hudson, 1 Br. Ch. Rep. 58. Vide 7 Bro. Par. Ca. 511, ||(fo. edit.); 3 Ibid. 424, (8vo. edit.); and see Butler v. Butler, 5 Ves. 534.||

So, where one Johannes Worsfold was devisee of the residue of his father's real estate, subject to the payment of his debts and certain legacies, and amongst others, a legacy to his sister Elizabeth Rozier; and he also took all his father's personalty, and was appointed his sole executor. Johannes Worsfold, by his will, dated 13th February, 1761, devised an estate called A, part of the estate of which he was seised in fee under his father's will, to his said sister for life, with remainder to her sons and their heirs, and appointed his sister and E H executors. On the 15th of May, 1761, he executed a mortgage of the estate of A, for securing the legacy to his sister, and covenanted in the deed for payment of the money. By a codicil of the 5th August, 1761, he, amongst other things, gave his estate in D to his executors and their heirs, upon trust to sell for payment of all his debts, of what nature and kind soever, and legacies and funeral expenses, expressing his apprehension that his personal estate would not be sufficient. Elizabeth Rozier survived Johannes Worsfold, and filed her bill to have the estate of A, which she took as devisee of her brother, exonerated by his personal estate from her legacy under the father's will. But the Lord Chancellor decided that the legacy never became the personal debt of J. Worsfold, and dismissed the bill with costs.

Hamilton v. Worley, 2 Ves. jun. 62.||

(E) Redemption and Foreclosure. (What Fund liable.)

[M D, by will of 15th of January, 1746, devised estates to trustees for a term of five hundred years, to raise money for payment of his debts and legacies, in aid of his personal estate; and, subject to the term, he devised the estate in strict settlement with the ultimate limitation to his own right heirs, and he gave the residue of his personal estate to his executrix C P. The executrix applied the personal estate in payment of some of his debts, and all the legacies, except a legacy to herself of 10007., and then died; whilst the limitations in strict settlement subsisted, and after the death of C P, her representative filed a bill to have a debt due to C P, and her legacy, raised; and the only person then entitled under the limitation in strict settlement dying pending the suit, by which event the ultimate limitation to the testator's right heirs took place, a supplemental bill was filed against M D and M D P, the co-heirs of the testator. To stop this suit, the co-heirs liquidated the demands of there presentative of C P, at 20701., and gave their joint and several bond for that sum; this demand was afterwards assigned to A B, who also bought in debts to the amount of 32701. remaining due from the testator M D, and the co-heirs gave another joint and several bond to A B, for this sum also; so that A B became the sole creditor on the estate. M D, being dead, and a bill being filed by A B, for payment of these sums of money, the question was, Whether a moiety thereof should be raised in the first place out of the personal estate of M D, or out of the real? and his honour was of opinion, that the real estate was the original debtor, and ought to bear the burden.

Basset v. Percival, 21st July, 1786, note (a), 2 P. Wms. 665;] [1 Cox, R. 268.]

Where the debt is admitted to be the debt of the party, the general rule is, that the personal estate is the primary fund for its discharge. The burden may, however, be thrown on the real estate by a clear manifestation of such intention in a testator's will. The cases on this subject are very numerous: and it has been observed by Lord Eldon in a late case, (Bootle v. Blundell, 1 Meriv. 219,)" that, on a comparison of the cases, it is scarcely possible to find any two in which the court altogether agrees with itself." It was formerly held, that if the loan were clearly the debt of the party, nothing short of an express declaration of intention would exonerate the personal estate from being the primary fund for its discharge; and Lord Eldon and Sir William Grant have both regretted that this rule was ever departed from. It is now, however, decided, that the intention may be evinced not only by express declaration, but also by plain implication, sufficient to satisfy the mind of the judge deciding upon the case. The intention is to be collected from the whole will taken together, and evidence dehors the will, though admitted in some earlier cases, is now held to be inadmissible. The intention manifested must be not merely to charge the real estate, whether by a trust for sale or otherwise, but also to exempt the personal estate. As the inference of intention is to be drawn from the facts of each particular case, it is impossible to lay down any general rules as to the expressions which will or will not be sufficient to express the intention one way or the other. Certain dispositions have, however, been held unfavourable to the claim of exemption; such as the same persons being appointed trustees of the real estate and executors; a gift of the personalty to an executor as a legacy, and his appointmennt of executor in the same sentence; and still more the circumstance of the personalty falling to the executor virtute officii; a bequest of the residue of the personal estate, except where preceded by previous bequests of the personal estate; and the circumstance of the real estate being limited

(E) Redemption and Foreclosure. (What Fund liable.)

in strict settlement and accruing to the same person as the personalty. So, on the other hand, the circumstance of the trustees not being executors, and of a gift of the whole personalty, have been held favourable to the inference of an intention to exempt the personal estate from payment of debts. The presumption, however, arising from all or any of these circumstances, is open to be rebutted by opposite presumptions arising from the general contents of the whole will.

Bamfield v. Windham, Prec. Ch. 101; Stapleton v. Colville, For. 202; Inchiquin v. French, 1 Cox, 1; Ambl. 33; 1 Wilson, 83; Andrews v. Emmet, 2 Bro. C. C. 303; Dolman v. Smith, Prec. Ch. 456; French v. Chichester, 2 Vern. 568; Haslewood v. Pope, 3 P. Wms. 325; Fereyes v. Robinson, Bunb. 302; Walker v. Jackson, 2 Atk. 625; Bridgeman v. Dove, 3 Atk. 202; Samwell v. Wake, 1 Bro. C. C. 149; Gray v. Minnethorpe, 3 Ves. jun. 106; Burton v. Knowlton, Ibid. 107; Brummel v. Prothero, Ibid. 111; Tait v. Lord Northwick, 4 Ves. jun. 816; Hartley v. Hurle, 5 Ves. 540; Brydges v. Phillips, 6 Ves. 567; Howe v. Lord Dartmouth, 7 Ves. 149; Watson v. Brickwood, 9 Ves. 447; Hancock v. Abbey, 11 Ves. 179; Tower v. Lord Rous, 18 Ves. 132; Aldridge v. Lord Wallscourt, 1 Ball. & B. 312; Bootle v. Blundell, 1 Meriv. 193; 19 Ves. 494; M'Clellan v. Shaw, 2 Scho. & Lef. 538; Gittins v. Steele, 1 Swanst. 28; Greene v. Greene, 4 Madd. 148; et vide ante, tit. Executors and Administrators.

If one devise lands which are in mortgage to A for life, remainder to B in fee: A shall contribute one-third towards the discharge of the mortgage, and B the other two-thirds.

[Cornish v. Mew, 1 Ch. Ca. 271; Rowel v. Walley, 1 Ch. Rep. 221; Ballet v. Spranger, Prec. Ch. 62; Verney v. Verney, 1 Ves. 428.]

But this doctrine is now altered, and the rule now is, that the tenant for life shall only be compelled to keep down the interest during his life; for the whole charge is upon the whole inheritance, and the natural division is, that he who has the corpus shall take the burden, and he who has only the fruit shall pay to the extent of the fruit of that debt.

White v. White, 9 Ves. 560. Vide Lord Penrhyn v. Hughes, 5 Ves. 99. Cogswell v. Cogswell, 2 Edw. 231. See Estate for Life and Occupancy, (D), vol. iii. p. 452.

[And if the mortgage-money is payable on a contingency not arrived, he in remainder or reversion may exhibit his bill quia timet, against the tenant for life, and the tenant for life shall be decreed to contribute.

Hayes v. Hayes, 1 Ch. Ca: 223.

And if the tenant for life of the equity of redemption pays off the mortgage, and has the term assigned over in trust for himself, and makes improvements, and dies; and afterwards the remainder-man or reversioner comes to redeem; the representatives of tenant for life shall have the allowance of twothirds of the lasting improvements, but nothing for the other third, because he received the benefit thereof during his life; and no interest shall be allowed during the life of tenant for life for the money he paid, for he is bound to keep down the interest during his estate.

Newling v. Abbot, East, 1 Geo. 2 Eq. Ca. Abr. 596, 11; [refers to Vin. Abr., but the editor finds no case of this name in that book.]

In the case of James and Hailes, it is laid down that, if an estate in mortgage be settled on A for life, and then on B in tail or in fee, the tenant for life shall bear two-fifths of the principal and interest, and the remainder-man three-fifths.

James v. Hailes, Prec. Ch. 44; sed vide 9 Ves. 560; 5 Ves. 99.||

But where he who is possessed of the equity of redemption hath such an VOL. VII.-10

G