(E) Equity of Redemption and Foreclosure.

devised. Bartholomew v. May, 1 Atk. 487; Marchioness of Tweedale v. Coventry, 1 Br. Ch. Rep. 240. Even though the mortgaged lands be devised expressly subject to the encumbrance. Serle v. St. Eloy, 2 P. Wms. 366. So, lands descended shall exonerate mortgaged lands devised. Galton v. Hancock, 2 Atk. 424. So, unencumbered lands and mortgaged lands, both being specifically devised, (but expressly “after payment of all debts,") shall contribute in discharge of such mortgage. Carter v. Barnardiston, 2 P. Wms. 505, 2 Bro. P. C. 1. In all these cases, the debt being considered as the personal debt of the testator himself, the charge on the real estate is merely collateral.]

So, also, where the testator exempts his personal estate, and devises his mortgaged estate subject to encumbrances, and permits another estate to descend, the descended estate shall exonerate the mortgaged estate devised. Barnewall v. Cawdor, 3 Madd. 453; and see Watson v. Brickwood, 9 Ves. 447. But an estate expressly devised for payment of debts shall be resorted to before a descended estate. Powis v. Corbet, 3 Atk. 556. But not an estate specifically devised charged with payment of debts; for estates particularly devised are never applied till all other funds are exhausted. Davies v. Topp, 1 Bro. C. C. 524; Wride v. Clarke, cited 2 Bro. C. C. 261. And whether the descended estate is purchased before or after making the will, appears to make no difference as to its being applied before or after a devised estate. Donne v. Lewis, 2 Bro. C. C. 257; Manning v. Spooner, 3 Ves. jun. 114; Milnes v. Slater, 8 Ves. 295. The general order of payment, therefore, as laid down in Davies v. Topp, and confirmed by the other cases, is, 1st, out of the personal estate unless specially exempted; 2d, estates particularly devised for payment of debts; 3d, estates descended, whether purchased before or after will; 4th, estates specifically devised, though generally charged with payment of debts.||

So, if the mortgagor conveys away the equity of redemption, the purchaser shall not have the benefit of the personal estate, but must take it cum

onere.

2 Salk. 450; Vern. 37. The purchaser of an equity of redemption takes such interest as defendant in the execution had; that is, the property subject not only to the first mortgage, but also to all other subsisting encumbrances. Hartzhorne v. Hartzhorne, 1 Green's Ch. 348; Crow v. Tinsley, 6 Dana, 402. See Worthington v. Lee, 2 Bland, 678; Goring v. Shreve, 7 Dana, 66.

It has likewise been held by some opinions, that the heir of the mortgagor shall have the benefit of the personal estate to pay off the mortgage, though there be no covenant in the mortgage-deed for the payment thereof; because the mortgage-money is a debt, whether there be any express covenant for the payment of it or not.

2 Salk. 449; Vern. 436; Preced. Chan. 61. [This guarded statement is no longer necessary the law is now clearly settled as here laid down. For, by Lord Talbot, in King v. King, 3 P. Wms. 358, every mortgage implies a loan, and every loan implies a debt; and though there be no covenant or bond, yet the personal estate of the borrower of course remains liable to pay off the mortgage. Hence, a decree of Lord Harcourt in the case of the mortgage of a ship, where the ship was taken at sea, and there was no covenant for payment of the money; and though the ship could not properly be said to be in nature of a pawn or depositum, since the mortgagor had sailed with the same to sea; nevertheless the executors of the mortgagor were decreed to pay the money for which the ship was mortgaged. So it is in the case of Welsh mortgages (Howell v. Price, infra,) where no day is appointed for the payment, but the matter is left at large. And see Balsh v. Hyham, 2 P. Wms. 455, S. P.]

But where a mortgage in fee was made, redeemable at Mich. 1702, or any other Mich. day following, on six months' notice; and there was no covenant for payment of the mortgage-money; it was held by my Lord Chancellor Cowper, that the mortgagor having devised his personal estate to his wife and daughter, and having during his life paid the interest of the mortgage, the personal estate should not be applied in ease and exoneration of the real estate, for the benefit of the heir at law; for, as he said, there being no covenant for payment of the money, there was no contract at all between

(E) Equity of Redemption and Foreclosure.

them, neither express nor implied; nor would any action lie against the mortgagor to subject his person, or compel him to pay this money; but this was in the nature of a conditional purchase, subject to be defeated on payment by the mortgagor, or his heirs, of the sum stipulated between them, at any Mich. day, at the election of the mortgagor, or his heirs ; so that here was an everlasting subsisting right of redemption, descendible to the heirs of the mortgagor, which could not be forfeited at law like other mortgages; and therefore there could be no equity of redemption, or any occasion for the assistance of the court; but the plaintiffs might even at law defeat the conveyance, by performing the terms and conditions of it; which were not limited to any particular time, but might be performed on any Mich. day, to the end of the world; and since here was no covenant or contract, either express or implied, to charge the personal estate of the mortgagor, he thought there was no reason to lay the load of this debt upon that which was given to other persons.

[Howell v. Price, Pr. Ch. 425; Gilb. Eq. Rep. 106, S. C. totidem verbis; 2 Vern. 701, S. C. It appears from the report in Pr. in Ch. & Gilb. that there was no decree upon the argument of this case in 1715, to which period of time these histories refer, but that precedents were ordered to be searched. The same case is reported by Peere Williams, but in a late stage of the cause, viz.: in 1717, upon the equity reserved after the trial of an issue that had been directed by the court. Upon that occasion Lord Chancellor seemed to be strongly of opinion, that the personal estate should be applied in ease of the real, the testator having said in his will, that his executors should, by his personal estate, pay and levy his debts; and this mortgage-money being a debt, his lordship decreed accordingly. 1 P. Wms. 291; 1 Eq. Ca. Abr. tit. Heir and Ancestor, (E,) pl. 7.]

Also, if the grandfather mortgages, and covenants to pay the mortgagemoney, and the land descend to his son, and his son dies, having a personal estate and a son; the son's personal estate shall not go in aid of this mortgage.

2 Salk. 450.

For it is an established rule, that the debt must be the debt of the party whose personal estate is to be charged in relief of the realty. A person, seised of an estate subject to a mortgage created by himself, devised all his real and personal estate to his wife absolutely, and appointed her executrix. The residuary personalty was sufficient to discharge the mortgage, which was not, however, discharged by the widow, who died intestate, leaving her brother her heir at law. The defendants were administrators of the effects of the husband, and also of the effects of the wife; and the brother filed his bill against them to be indemnified against the mortgage out of the personal estate of the husband. The vice-chancellor refused the claim, on the ground that though the residuary personalty of the husband had become the property of the wife, yet the debt of the husband not having become her debt, her heir at law had no claim to be indemnified out of her personal estate against the debt of another.

Scott v. Beecher, 5 Madd. 96.||

So, if an heir has lands descended to him, encumbered with a mortgage, and he, before any application made by him to have aid of the personal estate, disposes of them, he cannot afterwards come upon the personal estate; for the equity, which an heir has, is, that the lands may descend clear to the family.

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

[Where the real estate is originally, or afterwards becomes primarily liable, the real estate shall be first applied, though a covenant is added, or a bond given; for such covenant or bond is only intended as a collateral security to the land, and cannot alter the fund. In Bagot v.Oughton, 1 P. Wms. 347, land descended to the wife subject to a mortgage made by her father; on an assignment of the mortgage, the husband covenanted for the payment of the money to the assignee: it was decreed, that the husband's personal estate was not liable to exonerate the mortgaged premises, for the debt was originally the father's, and continuing to be so, the covenant was an additional security for the satisfaction only of the lender, and not intended to alter the nature of the debt.

George Evelyn, the father, and grandfather to the two plaintiffs, had three sons, John, George, and the plaintiff, Edward Evelyn; George, the father, (being tenant for life, remainder to his eldest son John, in tail male of part of the premises,) together with his eldest son John, on the 20th October, 1698, by deed and recovery, settled certain estates in strict settlement, with a power to George the father, by deed or will, to charge by lease, mortgage, or otherwise, the premises limited to himself for life, with raising or paying any sum not exceeding 6000l. George, the father, in pursuance of the power, mortgaged part of the said land for 1000l. for the term of 1000 years. This mortgage afterwards, by mesne assignments, became vested in Sir Thomas Pope Blunt, with a covenant, from George Evelyn, the son, for payment of the mortgage-money; and, on the same assignment, Sir Thomas, the mortgagee, covenanted to re-assign to George Evelyn, the son. Afterwards George Evelyn, the father, died; then John Evelyn, the eldest son, died without issue, upon which George, the second son, entered upon the premises comprised in the settlement, and died intestate, leaving the defendant, Mary, his widow, and three daughters. Then Edward Evelyn and his son (the next remainder-man in tail) instituted a suit against Mrs. Evelyn, the mother, (afterwards married to Governor Bohun,) being the administratrix of her former husband, George Evelyn, praying, that the personal estate of her late husband should be applied towards paying off the mortgage of 1500l. and in exoneration of the real estate. But it was held by the Lord Chancellor, assisted by the Lord Chief Justice Raymond, and the Master of the Rolls, that the personal estate of the son should not be applied to pay off this mortgage, made by the father; because the charge was made by the father in pursuance of the power contained in the settlement; and as he had such power, the plaintiff Edward must be contented to take such land cum onere; and notwithstanding that the son did afterwards, on the assignment to Sir Thomas Blunt, covenant to pay the mortgage-money, yet, since the land was the original debtor, this covenant from the son would be considered only as a security for the land.

Evelyn v. Evelyn, 2 P. Wms. 659; Fitzg. 131; S. C. Sel. Ca. Ch. 80. Edward Evelyn and his son were plaintiffs in this bill, and defendants in another suit heard at the same time, and included in the Report in P. Wms. Vide also Lechmere v. Charlton, 15 Ves. 193.||

Gilbert, the late Earl of Coventry, on his marriage with the daughter of Sir Strensham Masters, (the earl being but tenant for life, with a power of making a jointure of lands, not exceeding 500l. per annum, on any wife he should marry,) covenanted in consideration of the intended marriage, that he, or his heirs, would, after the marriage, according to the power given him by his father's will or otherwise, settle 500l. per annum on his

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

wife for her jointure; and it being in proof, that the late earl directed his steward to look over the rent-rolls, for a fit part of the estate to make good the jointure, and that afterwards the jointure-deed was engrossed, but not executed; though this depended only on a covenant, yet the jointure of land being the chief thing in view, the decree was, that the land should be settled, and the covenant not made good out of the personal estate. Earl and Countess of Coventry, 2 P. Wms. 222, Strange, 596, S. C.

And so in the case of Edwards and Freeman, though the wife's jointure and the daughter's portion were secured by articles, which were never completed by a settlement, yet those articles being to settle lands, and the covenantor leaving lands sufficient to answer them, it was decreed, that the daughter's portion should be raised out of the lands, and that the personal estate of Mr. Freeman, the covenantor, should not be applied in exoneration thereof. But it is to be observed, that in the latter case particular lands were agreed to be settled, and, consequently, that the covenant was a lien upon those lands.

Freeman v. Edwards, 2 Will. 435.

The son, tenant in fee, on an assignment of the ancestor's mortgage, covenanted with the assignee for payment; yet it was determined, that the personal security was only auxiliary, and both principal and interest were charged primarily on the land; for although the interest had accrued during the possession of the son, the interest must follow the principal, and be charged on the same fund.

Leman v. Newnham, 1 Ves. 51. So, Lacam v. Mertins, Ibid. 312; Robinson v. Gee, Ibid. 251.

A purchased an estate for 907., which was at that time mortgaged for 861., and he covenanted to pay 861. to the mortgagee, and 41. to the vendor; the court admitted the rule of law above mentioned, but, in this particular case, thought that, although the covenant was with the vendor only, and the vendee's personal estate not liable in that respect to the mortgagee, yet the words were sufficiently strong to show an intention in the vendee to make it his personal debt.

Parsons v. Freeman, before Lord Hardwicke, 25th Oct. 1751. Vide 2 P. Wms. 664, note 1.

N was, before her marriage, indebted to sundry persons, and entitled to the inheritance of lands, charged with the payment of sundry sums; and before her marriage entered into articles, whereby the estates were to be settled to the husband for life, sans waste, remainder in like manner to wife, remainder to the issue of the marriage, remainder to the wife in fee; the marriage took effect, and the husband being pressed for payment of the wife's debts, and having also occasion for a farther sum of money, they borrowed 1300l. of the wife's sister (the original plaintiff in the cause,) and secured it by mortgage of the wife's estate, and the husband covenanted for payment of the whole money, and also executed a bond conditioned for payment of the money, according to the provisoes in the mortgage. Subject to this mortgage, the lands were settled on the husband for life, remainder to the issue of the marriage, remainder to the wife's sister (the mortgagee) in fee. N died without issue; and the plaintiff was the devisee of the sister, who brought his bill against N's husband for the payment of the mortgage-money. But the Lord Chancellor held, that although part of the money was raised for the husband's use, yet the mortgage being a single

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

transaction, he must suppose the intention of the parties to be uniform, and that such intention was to charge the wife's estate with the whole debt; and his lordship dismissed the bill, so far as it sought to compel the husband to exonerate the land, but directed him to keep down the interest during his life.

Lewis v. Nangle, before Lord Hardwicke, 7th Nov. 1752. Vide 2 P. Wms. 664, note 1; 1 Cox, 240; Ambl. 150; and Pitt v. Pitt, 1 Turner's R. 180.]]

L had purchased several estates, subject to mortgages, with regard to one of which he entered into a covenant to pay the mortgage-money, for the purpose of indemnifying a trustee; and as to another, which was only part of an estate subject to a mortgage, upon splitting the encumbrance, both parties covenanted to pay their respective shares, and indemnify each other; Lord Hardwicke thought that these covenants would not have the effect of making the mortgages personal debts of the vendee, they having been entered into for particular purposes, and declared his opinion accordingly in the decree.

Forrester v. Leigh, 23d, 25th June, 1773. Vide 2 P. Wms. 664, note 1.

Sir W O, by his will of the 5th February, 1739, taking notice that his daughter C was deaf and dumb, and that B had taken care of her, devised certain real and personal estate to J B, her heirs, executors, and administrators, in trust, by sale, or selling timber to pay all his debts, and directed that J B should receive the rents and produce of his real and personal estate without account, during his daughter's life, she maintaining his daughter; and after the death of his daughter, he gave all his real and personal estate whatsoever to J B in fee, and appointed her sole executrix; Sir W O died, March, 1740, and J B proved the will; Sir W O, in his lifetime, mortgaged part of his estate, for securing 1500l. and interest, which remained a charge at his death. JB paid off 500l. part of this 1500l., and afterwards borrowed a farther sum of 2500l. on mortgage of the estates, which money was, in the mortgage-deed, expressly recited to have been borrowed to enable her to discharge Sir W O's debts. J B afterwards died, and on the disposition made by her, and those claiming under her, of the property of Sir W O, this cause was instituted. The cause was first heard before Lord Bathurst, on the 19th February, 1777, when the court declared, that the sum of 1500l., part of the 3500l., was not to be considered as a debt of the said J B, but was to remain a charge on the real estate, and directed an account of her personal estate. By an order made on re-hearing, on the 13th of August, 1781, that part of the decree was reversed, and, instead thereof, it was declared, that the said sum of 1500l. appearing to have been a charge made on the estate of the said Sir W O in his lifetime, and remaining such at his death, was to be considered as a continued lien thereon; and that the subsequent charge made on the estate by the said J B, being expressed in the mortgage-deed to have been made for the purpose aforesaid, the same together with 1500l. amounting in the whole to the sum of 35001., was to be considered as remaining a charge on the said estates. Perkins v. Baynton, 2 P. Wms. 664, note 1.

G D mortgaged lands to W G, to secure payment of 5000l. with interest, at 5 per cent.; and by will, of 22d of May, 1723, devised the lands to his nephew G, in tail-male, remainder to the plaintiff in tail-male, remainder over, and died in the same month. In 1725, G S suffered a recovery to himself in fee. The mortgagee calling for his money, W G agreed to ad