declaration, in no manner depending upon the proviso for redemption, but
defining the course in which the property is to be carried after the satisfaction
of the mortgage. A fine was afterwards levied, according to the agreement
among the parties ; and after the death of the husband, a bill to redeem was
filed by the relict. The son and heir of the former husband, being a party
defendant in the suit, was an infant. The Court decreed, that the plaintiff
and the infant should proportionably pay what was due upon the mortgage at
the time of the death of the mortgagor, rating the estate for life of the plain-
tiff in the premises at one-third, and the reversion in fee of the infant at two-
thirds. In that case it was determined, that the subsequent declaration and
limitation, having no connection with the proviso for redemption, but declar-
ing what should become of the property after the mortgage was satisfied, ope-
rated against the construction of a resulting trust for the benefit of the wife.
It was held to be a distinct settlement, and that she had parted with her estate.
In the case now pending before us for judgment, the distinction is stronger;
for it is the mortgage term, which is made redeemable by the husband and
wife, and the fee is the subject of settlement. In the case of The Earl of
Huntingdon v. The Countess of Huntingdon, the mortgage was made by the
mother of the plaintiff, joining with her husband, of lands, being her inheri-
tance ; aud the purpose was to raise money for the husband to pay for the
place of Captain of the Baud of Pensioners. The mortgage was for a term of
years, subject to which the estate was settled to the Countess (the plaintiff's
mother) for life, remainder to the plaintiff in tail. The proviso for redemp-
tion was, that on payment of the mortgage-money the term should cease. In
1683, the Countess joined with her husband in an assignment of the mort-
gage; and in the deed of assignment the proviso was, that on payment of the
money borrowed by them, or either of them, the mortgage term was to be
assigned as they or either of them should direct or appoint. The husband
afterwards paid off the mortgage, and took an assignment of the term in trust
for himself; and by will bequeathed his personal estate to the defendant, his
second wife, who claimed the term. The plaintiff filed a bill in Chancery,
praying that the term might be assigned to him. The Lord Keeper refused
to make such decree, except upon the usual terms of a redemption, paying



588 MORTGAGE BY WIFE.



principal, interest, and costs ; but upon appeal to Parliament, the decree was
reversed, and the term directed to be assigned to the *appellant, with
[*852] aQ account f profits from the death of the appellant's mother, making
to the respondent just allowances for the maintenance of the appellant, and
management of the estate. In that case the limitation, after the life estate,
was to the son in tail ; and in the case now under discussion, it is to the hus-
band and wife and the heirs of their bodies, or, in default of issue, to the sur-
vivor of the husband and wife in fee ; and that is the only difference in that
respect between the cases. The proviso for redemption in the Earl of Hunt-
ingdon's case was that, on payment by either of them, the term should be
assigned as they or either of them should direct. Under these circumstances,
the executrix and devisee of the husband insisted, that as he had paid the
mortgage and taken the assignment, it belonged to her as his representative.
The son of the former wife contended that the estate was under settlement,
and bound by the terms of the settlement; that the husband and wife could
not deal with the estate beyond their own interest ; and it was held, as to the
term assigned to the husband, and possessed under his will by the defendant,
that there was a resulting trust for the son.

" In the case of Lewis v. Nangle, (Amb. 150,) the property which belonged
to the wife, was mortgaged and settled upon the husband and wife, with re-
mainder, not to the wife herself, but to the wife's sister. The wife died, and
the sister brought a bill, in order to compel the husband to pay off the mort-
gage. In that case it appeared that the money raised upon the mortgage,
being £1100, was in part borrowed for the use of the husband, and part of it
for the purpose of paying a debt incurred by the wife previous to the mar-
riage. In giving judgment upon the case," the Lord Chancellor said, ' The
general rule is, that when the husband borrows a sum of money for his own
use, and the wife joins in a mortgage of her jointure for repayment of it, that
her estate shall be a creditor upon the husband for that sum. So it is where
there is no settlement, and the wife mortgages her estate of inheritance to
raise money for the husband; but where, at the time of executing such mort-
gage or security, a settlement is made either before or after marriage, there is
no instance in which the husband has been considered answerable to the wife's
estate for the money borrowed ;' and he there held, that, under the circum-
stances of this case, there being a settlement of the estate, the husband was
not liable for the money borrowed. The subsequent limitation was not im-
peached by the person who brought the bill, because that person was entitled
to the estate under that limitation.

" In the case of Jackson v. Parker, (Amb. 687,) which was *de-
[*853] cided ^ g j r Thomas g ewe n ) a difficulty occurred of a different de-
scription. The husband had borrowed a sum of money, and, in order to make
a security by mortgage of his own estate, his wife joined in a fine, which
would have the effect of barring her of any claim of dower. The limitation
of the equity of redemption was to the husband and the wife and their heirs ;
and there was a declaration in the deed, that after payment of the money lent



EARL V. COUNTESS OF HUNTINGDON. 589

on this mortgage, the fine should enure to the husband and his heirs. Other
charges were afterwards made upon the estate, and those subsequent charges
were all made redeemable by the husband and wife and their heirs. The
husband by his will made a disposition of this property, in trust to raise pro-
visions for all his children. But the will was disputed by the eldest son and
heir-at-law, upon the ground that it was a devise of the equity of redemption,
of which the husband was not solely seised, because the equity of redemption
was reserved to the husband and wife and their heirs. Sir Thomas Sewell
had some difficulty upon the subject at first, in consequence of the words of
the Statute of Wills, which does not admit of a devise of property, of which
the devisor is not solely seised. But, upon reflection, he decided that the
case was to be considered as in equity; it was not a legal estate, and, as an
estate to be governed by the rules of equity, it was the seisin of the husband,
and not of the wife. Upon a contest for redemption, the Court would regard
the ownership of the estate previous to the mortgage, and, in that view, the
husband would be considered as the person entitled to redeem, the wife being
entitled to redeem only in respect of her interest, which would have been only
a right to dower, if she had survived her husband. In such case, she would
have been entitled to have had the estate redeemed for the purpose of letting
in her dower ; but there her right ended ; and that, therefore, the husband
must be taken to be in equity sole seised of the estate, as if the mortgage had
not been made. In that case it was argued, ' that the Court will put a true
construction on the deed, by taking into consideration the ownership of the
estate, and the purpose for which the deed was made ; that the husband was
the owner of the estate, and the intention of the deed was merely to make a
mortgage, and the wife was made a party, and joined in the fine, for the sake
of the mortgagee.' And this argument was adopted by the judgment.

" In the case of Corhctt v. Barker, (1 Anstr. 138,) according to the report,
the Court do not seem to have the least notion that there existed a resulting
trust, such as the House of Lords held to exist in the case of Ruscombe v.
Hare, *and they dismissed the bill. In that case it appears probable
that Baron Thompson doubted the correctness of the decision ; for L J
he says, l that a reservation of the kind now under discussion, in a fine levied
completely diverso intuitu, shall not without an express declaration of such
intention, carry the estate in a new channel.' The cause being afterwards
re-heard, the Court seems to have been of opinion that a trust resulted in
favor of the original owner of the estate, and determined accordingly. The
report of the case is so very imperfect in its language and statements, that it
is difficult to discover what are the facts of the case, and the point decided;
but as far as they can be collected, the case appears to have been of the same
nature as Broad v. Broad, and the other cases which have been decided upon
a similar principle.

" It must now be admitted as an established principle, to be applied in de-
ciding upon the effect of mortgages of this description, whether it be the
estate of the wife or the estate of the husband, if the wife joins in the con-



590 MORTGAGE BY -WIFE.



veyance, either because the estate belongs to her, or because she has a charge
by way of jointure or dower out of the estate, and there is a mere reservation
in the proviso for redemption of the mortgage, which would carry the estate
from the person who was owner at the time of executing the mortgage, or
where the words admit of any ambiguity, that there is a resulting trust for
the benefit of the wife, or for the benefit of the husband, according to the
circumstances of the case. But here, it seems to me, that the operation of the
deed as to the mortgage term, and the operation of the deed as to the limita-
tion of the fee, are wholly distinct, and do not in any way depend on each
other. The question does not arise upon the interpretation of the proviso for
redemption, but it arises upon a distinct and subsequent clause of the deed.
The term and the fee are kept distinct in the deed. The term is a security
for the repayment of the money lent, and when the mortgage should be dis-
charged, the intention of the maker of the deed was, that the term should be
completely at an end. The way in which they proposed to effect this was by
declaring that, upon payment of the money due the term shall cease. If the
money had been paid at the day, the term ceasing, there would have remained
nothing of the mortgage operating upon the property. But there would then
have remained the declaration in the deed, directing what should be done
with the estate, subject to the term. The term being at an end, the opera-
tion of the deed, so far as it declared the limitations of the estate, subject to
the term, remained *perfectly distinct, and had no connection what-
L J soever with the existence of a term which then would have ceased
to exist. A court of equity will so deal with a declaration that, upon pay-
ment of a sum of money on a given day, the term shall cease; that, although
the term becomes absolute by non-payment of the money at the day, it is still
subject to redemption. By whom it may be redeemed must be discovered
from the title, which, by the deed itself, is declared to be in the husband
and wife for their respective lives, then to the heirs of their bodies, and then
to the survivor in fee. Upon the declarations, therefore, and the provisions
of that deed, the redemption would arise by implication, in case the money
was not paid at the day. The implication must be drawn from the deed itself
declaring who were the persons entitled to the estate.

" In all the other cases decided upon the general principle the grounds of
the decisions were, ' that the mode in which the redemption was limited was
by mistake or improper contrivance introduced into the deed.' But in this
case there is no ground to raise such imputation, for the deed is clear and ex-
press in its declarations and provisions. The case is really in principle, if not
in circumstances, the same as the case of Roicel v. WhaMey.

" Where the declaration of the uses of the fine refers simply to the opera-
tion of the deed as a mortgage, where it is simply a declaration that, the mo-
ney being paid, the fine shall enure to the persuns who make the mortgage,
and there is nothing else which makes it subject to redemption, that would be
considered as a mere clause of redemption, and construed in the same way.
But where the form of the equity of redemption has nothing to do with the



EARL V. COUNTESS OF HUNTINGDON. 591



limitation of the estate, where the limitation of the estate is perfectly distinct,
it seems to me, the rules which have been established in the cases of resulting
trust do not in any degree apply."

Lord Eldon, adopting the opinion of Lord Redesdale, observed, that " the
circumstances of the case were certainly, in point of fact, much better under-
stood than they were, and much greater research had been made into cases,
so as to bring before the consideration of the House the true principle of de-
cision. The Court below did not rightly apprehend the case, as it now appeared.
The judgment of the House would remove a difficulty which he knew was
floating in the minds of many persons. He conceived it to have been the
opinion of Lord Thurlow, that, in order to dispose of the equity of redemp-
tion of the wife in an estate, it was absolutely necessary there should be, in
the recitals of the instrument, some expression that the parties meant p,.^,,-,
*it so ; that it was not enough to collect the intention from the limi- L J
tations, but that there must be something more upon the face of the deed to
lead the wife to understand what the limitations were. It did, however,
occur to him, on looking into the cases which had been referred to, that such
a proposition could not be supported, and therefore he was of opinion that the
decree must be reversed."

In Reeve v. Hicks, (2 S. &■ S. 403,) a husband and wife mortgaged the
wife's freeholds for 1000 years, to secure the repayment of a sum of money
lent to the husband ; the deed contained a reservation of a peppercorn rent
during the term, to the husband and wife, and the heirs and assigns of the
wife, and also a covenant on the part of the husband, that he and his wife
would levy a fine to the use of the mortgagee for the term thereby demised,
for better securing the mortgage-money, and subject thereto to the only use and
behoof of the husband, his heirs and assigns for ever, and for no other use,
intent, or purpose whatsoever. The clause for redemption provided that, upon
payment of the mortgage-money and interest by the husband and his wife, or
either of them, their or either of their heirs, executors, administrators, or as-
signs, upon the 10th of February, 1771, the term of 1000 years should cease.
The husband released the equity of redemption to the mortgagee in fee, who
entered into possession. On the death of the husband, it was held by Sir
John Leach, V. C, that the wife was not entitled to redeem.

" The case," said his Honor, " is not distinguishable in principle from In-
nes v. Jackson. The limitation of the uses of the fine to the husband and his
heirs, has no connection with the purpose of the mortgage, or the proviso of
redemption, but is altogether a new settlement, which defeats the heir of the
wife." See also, Eddlestone v. Collins, 3 De G. Mac. & Gr. 1.



It is well settled, that a wife who the time, or existing previously, ac-
morto-ao-es her property for the debt quires the rights and privileges of
of her husband, whether created at a surety ; and as such, will be en-



592



MORTGAGE BY WIFE.



titled to have the mortgage satisfied
out of his property, in exoneration of
her own; Hawley v. Bradford, 9
Paige, 200; Fitch v. Cotheal, 2 Sand-
ford, Ch. 29; Ayres v. Busted, 15
Conn. 504; Johns v. Reardon, 11
Maryland, 465 ; Sheidle v. Weishlee,
4 Harris, 134 ; Weeks v. Haas, 3 W.
& S. 520 ; Knight v. Whitehead, 26
Mississippi, 245'; unless the effect
would be to prejudice or delay the cre-
ditor ; ante, vol. 2, p. 278. Thus, when
two mortgages are executed at the same
time by a husband and wife, one of
her land, and the other of his, the
latter will be the primary fund for
the payment of the debt; and a pur-
chaser with notice, will be responsible
for diverting the proceeds to any other
purpose; Sheidle v. Weishlee ; Loonier
v. Wheelwright, 3 Sandford, Chancery,
135. And when the mortgage is
solely of the wife's land, chancery will
direct, that the husband's interest as
tenant by the curtesy, be sold in the
first instance, and that of the wife in
the reversion subsequently ; or when
this mode of sale would prove injurious
to her interests, or those of the credi-
tor, will direct a sale of the whole at
once, and an investment of the sur-
plus to her use, unless the value of
the husband's life estate more than
equals the amount of the debt : Niem-
cewiez v. Ghan, 3 Paige, 614; 11
Wend. 312. The rule is the same,
whether real or personal property is in
question; Knight v. Whitehead, 26
Mississippi, 245 ; all that is necessary
to convert the wife into a surety, and
entitle her to protection and indem-
nity against the husband and his cre-
ditors, being to show, that she has
pledged her property for his benefit,
without sharing in or receiving any



part of the consideration ; Knight
v. White; Vartie v. Underwood;
Loomer v. Wheelwright. And the
equity thus erected, being like that of
other sureties, matter of substance,
and, therefore, paramount to the form
of the transaction, will not be rebutted
by a reservation of the right of redemp-
tion, or of the surplus which may
arise from a sale under the mortgage,
to the husband and not to the wife;
Weeks v. Haas, 5 W. & S. 520, 523 ;
Duffy v. The Insurance Co., 8 Id. 413,
433 ; Vartie v. Underwood ; ante, 584;
or by anything short of proof that she
meant to make an absolute gift, and
not merely to give a temporary accom-
modation ; Knight v. White. This,
however, is only true when the mort-
gage is for the benefit of the husband,
and will not apply to the pledge or
conveyance of the separate estate of a
feme covert, for her own purposes,
whether made concurrently with, or
apart from her husband ; Niemcewiez
y.Ghan, 3 Paige, 614; 11 Wend. 312.
As a mortgage of the wife's pro-
perty for the husband's benefit, invests
her with the character of a surety, she
will be entitled to the benefit of the
equities of a surety, and will be dis-
charged by any act on the part of the
creditor, of a nature to impair her re-
course for indemnity. The law was
so held in Loomer v. Wheelwright, 3
Sandford, Ch. 135, and a sale of the
equity of redemption in the husband's
land, which had been mortgaged
simultaneously with that of the wife,
to the mortgagee, for a price exceed-
ing the mortgage debt, held to make
it the duty of the latter to obtain pay-
ment out of the fund thus placed
within his control and possession,
and preclude him from having re-



EARL V. COUNTESS OF HUNTINGDON.



593



course to the wife's land at a subse-
quent period, — nothing being better
settled, than that a creditor will be re-
sponsible for allowing any means which
might and should have been made
available for the payment of the debt,
to escape from his grasp, to the injury
of the surety ; ante, 552. The equity
thus created, will be binding not only
between the parties, but on subse-
quent purchasers with notice of its
existence; and will render it their
duty to appropriate the proceeds of a
sale made by the husband, of that por-
tion of the mortgaged premises which
is his, to the discharge of the mort-
gage, instead of paying to him or allow-
ing it to be diverted to other pur-
poses; Sheidle v. Weishlee, 4 Harris,
134. And in Fitch v. Cotheal, 2
Sandford, Eq. 29, this principle was
carried to the extent of deciding, that
when a husband who had mortgaged
his wife's land for his own purposes,
subsequently bought the mortgage in
the name of an agent, and then caused
it to be transferred to a subsequent
assignee for value, and without notice;
the mortgage was extinguished by the
equitable merger of the right to re-
ceive and pay in the hands of the
principal, and the assignee took no title
against the surety. The necessary re-
sult of such a course of decision, is to
deprive the assignee of the protection
which may, under ordinary circum-
stances, be derived from an inquiry of
the mortgagor; for the declarations of
a wife as to the liability of her estate
to a mortgage, will not operate as an
estoppel, unless she is fully cognizant of
the legal effect of the acts which tend
to discharge it. And we may doubt the
propriety of any view of the law, which
tends to deprive the bona fide pur-
vol. in. — 38



chaser of a mortgage, of the protection
incident to the acquisition of the legal
title, in good faith in other instances;
ante, vol. 2, p. 82.

The general principle, that a wife
who has mortgaged her estate for the
benefit of her husband, is entitled to
the rights of a surety, and shall, con-
sequently, be protected against any
act of the creditor or of other persons,
by which those rights are destroyed or
injured, is unquestionable ; Ayres v.
Ilusted, 15 Connecticut, 504 ; Johns
v. Reardon, 11 Maryland, 465; ante,
vol. 2, p. 223; Niemcewiez v. Ghan,
3 Paige, 614, 649; 11 Wend. 312;
but some doubt was expressed by the
chancellor in Niemcewiez v. Ghan,
whether she should be allowed to
avail herself of the somewhat techni-
cal doctrine, under which a gift of
time to the principal discharges the
surety, whether he is or is not in-
jured : it being said with much force,
that if the law were so, all possibility
of an arrangement between the hus-
band and the creditor, would be at an
end; because the effect of depriving
him of the right to assent for her,
would be to leave her without the
power to assent for herself, and re-
sults might follow in the highest
degree prejudicial to their common
interest. But the case was finally de-
cided on the ground, that the creditor
could not be discharged by dealing
with or giving time to the husband,
unless he knew, or had the means of
knowing, that he was the principal
and his wife a mere surety, which was
said not to be a necessary inference,
from the fact that the land belonged
to her, while the consideration was
paid to him, because he might have
received it as her agent, and with the



594 MORTGAGES. — REDEMPTION. — CONDITIONAL SALES.



view of employing it subsequently for
her benefit.

It is well settled, that a wife who
has the power of alienation, may exert
it by conveying to a third person for
the benefit of her husband ; Mercer v.
Harsen, 2 Barb. Ch. 232 ; Jasper v.
Maxwell, 1 Dev. Ch. 357 ; and a reser-
vation to the husband of the equity of
redemption arising on a mortgage of
the wife's land, may consequently be
effectual, unless invalidated by fraud
or mistake ; Demarest v. Wyncoop,
Johnson, Ch. 129 ; although the
better opinion would seem to be,
that the mere form of the mortgage
will not be allowed to vary the na-
ture or result of a transaction, which



prima facie negatives the idea of a
gift, and justifies the presumption that
its purpose was limited to a pledge of
the land as security, and should not
be allowed to operate further; Weeks
v. Baas, 3 W. & S. 520 j ante, 592.
There is, however, no reason to doubt,
that when land belonging to the wife,
but subject to the life estate of the
husband, is mortgaged or conveyed in
trust, for the payment of his debts,
with a reservation of the equity of re-
demption, or resulting trust in her
favor, the transaction will take effect
as a purchase of his interest in the
land, for valuable consideration; Duffy
v. The Insurance Company, 8 W. &
S. 413.



MORTGAGES. — REDEMPTION. — CONDITIONAL SALES.

[*857] *TIIORNBROUGH t. BAKER.

TERM. TRIN. 28 CAR. 2.

reported 1 ch. ca. 283. 1

Executor of Mortgagee in Fee entitled to Money secured on Mort-
gage.] — The executor, not the heir of a mortgagee in fee, is entitled to the
money secured by the mortgage.

Reasons of that doctrine.

The plaintiff's bill being, that Lawrence Clifton, by indentures of lease and
release between him and James Baker, bearing date the 20th and 21st of Oc-
tober, 1656, in consideration of £500 paid to him by the said James Baker,