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Jenkinson v. Harcourt, Kay, 688,
700 ; and see Dolphin v. Ayhvard,
15 Ir. Ch. Eep. 583. As to what
would be the effect of the tenant
for life becoming absolute owner
hj the failm'e of intemiediate
limitations, see Scott v. Beecher,
5 Madd. 96 ; Lord Ilchester v.
Lord Carnarvon, 1 Beav. 209 ;
Noel V. Lord Henley, Dan. 331 ;
332 ; Earl of Clarendon v. Barham,
lY. & C. C. C.788.

Where a person has raised
money by mortgage of an estate,
which he aftei-wards aliens or
settles upon volunteers, and more
especially if he does so expressly
subject to the mortgage, the na-
tural inference from such a trans-
action, unless there be something
in the instrument to indicate a
contrary intention, is that the
alienor or settlor did not mean
to pay the debt out of his per-
sonal estate. If the alienation
be made subject to the mortgage



DUKE OP ANCASTER V. MAYER.



711



debt, whether the alienee be a
volunteer or purchaser, the infer-
ence is, that though as between
the real and personal representa-
tives of the mortgagor, his real
estate was intended to be only a
collateral security, yet from the
moment of alienation he has made
that estate the principal debtor
(Vandeleur v. Vandeleur, 3 C. & F.
82 ; 9 Bligh, N. S. 157 ; Leivis v.
Nangle, 1 Cox, 240 ; Ihhetson v.
Ibhetson, 12 Sim. 206; Lady Lang-
dale y. Briggs, 8 De G. Mac. &
G. 391) ; and if he were to pay off
the whole or any part of the charge
upon the real estate, he would,
unless he showed that he intended
to make the payment in ease of
the real estate, be a creditor for the
amount he so paid off {Ex ijarte
Dighy, Jac. 235 ; Redington v.
Redington, 1 B. & B. 131 ; Vayi-
deleur v. Vandeleur, 3 C, & F. 82 ;
9 Bligh, N. S. 157) ; but where the
settlement contains a covenant on
the part of the settlor to pa}' the
debt, that might show his inten-
tion to render his personal estate
primarily liable. See Noel v. Noel,
12 Price, 263, 264 ; Barham v.
Earl of Clarendon, 10 Hare, 126.
Where, moreover, the mortgage
debt is not the personal debt of
the devisor or ancestor, but of a
previous owner of the mortgaged
estate, the mortgaged estate is the
primar}', and the personal estate
merely the auxiliary and collateral
fund for its payment ; and con-
sequently the heir-at-law or de-
visee, will take such estate cum



onere, unless the mortgage debt
has been adopted by the devisor or
ancestor as his own, in which case
the rule, that the personal estate
is the primary' fund for its payment
applies : Scott v. Beecher, 5 Madd.
96. And see Earl of Clarendon
V. Barham, 1 Y. & C. C. C. 688.

What acts do not amount to an
adoption of a mortgage debt by
the owner of the estate.A^ — There
is considerable difficulty in ascer-
taining what acts amount to an
adoption of the debt. The follow-
ing acts have been held not to be
sufficient: — If the heir or de\isee,
upon a transfer of the mortgage,
enters into a personal covenant
with, or executes a bond to, the
new mortagee for the payment
of the mortgage debt, if he does it
only for that purpose, it has been
frequently determined not to make
it the personal debt of the party
whose original debt it was not
(BagotY. Oughton, 1 P. Wms.347 ;
Evelyn v. Evelyn, 2 P. Wms. 664 ;
see Cox's note Leman v. Newn-
ham, 1 Ves. 51 ; Lacamx. Mertins,
1 Ves. 312 ; Robinson v. Gee, 1
Ves. 251 ; The Earl of Rchester v.
The Earl of Carnarvon, 1 Ben v.
209 ; Hedges v. Hedges, 5 De G.
& Sm. 330 ; and see and consider
Barham v. Earl of Thanet, 3 J\Iy.
& K. 607 ; Bruce v. Morice, 2 De
G. & Sm. 389) ; — nor if, as in the
principal case, he obtains a small
further advance, and gives an
additional real security for the
whole sum due ; — nor where he



712



DUKE OF ANCASTER V. MAYEE.



enters into a covenant to pay a
higher rate of interest {Shafto v.
Siiafto, 2 P. Wms. 664, n. ; 1 Cox,
207 ; sed vide Woods v. Hunting-
ford, 3 Ves. 128 ; Liishington v.
Seiccll, 1 Sim. 435) :— nor where
he obtains an additional advance
to pay off arrears of interest on
a mortgage and the simple con-
tract debts of the person from
whom he takes the estate {Earl
of Tankerville v. Faiccett, 1 Cox,
237) ; — nor will a mortgage by the
heir or devisee of lands, demised
or descended, subject to payment
of the debts or legacies of the an-
cestor or devisor, in order to
secure their debts or legacies, be
considered as the debt of the heu*
or devisee : Pcrkyns v. Baynton,
2 P. AVms. 665, Cox's note ; Bas-
set V. Percival, 1 Cox, 268 ; Noel
v. Lord Henley, 7 Price, 241 ;
S. C, Dan. 211 ; Hamilton v.
Worley, 2 Ves. jun. 62 ; Earl of
Tankerville v. Faiccet, 1 Cox,
237, 2 Bro. C. C. 57. Nor ^ill a
charge by an heir or devisee of
his estate with paj'ment of his
debts be considered as an adop-
tion of the mortgage debt of Lis
ancestor or the devisor from
whom he took the estate : Lnwson
V. Laicson, 3 Bro. P. C. Toml.
Ed. 424 ; Hamilton v. Worley, 2
Ves. jun. 62, 4 Bro. C. C. 199;
Laxvson v. Hudson, 1 Bro. C. C. 58.
Where a man buys subject to a
mortgage, and has no connection,
or contract, or communication with
the mortgagee, and does no other
act to show an intention to trans-



fer the debt from the estate to
himself, as between his heir and
his executor, but merely that
which he must do if he pays a
less price for it in consequence of
that mortgage — that is, indem-
nifies the vendor against it — he
does not, by that act, take the
debt upon himself personally :
Woods V. Huntingford, 3 Ves. 132,
per Sir R. P. Arden, M. R. : and
although he agi-ees or covenants
with the vendor to pay the mort-
gage debt, he does not thereby
make it his own debt, but it re-
mains a charge upon the estate,
or rather a debt of his in respect
of the estate only : Tueddell v.
rweddell, 2 Bro. C. C. 101, 152 ;
Butler X. Butler, 5 Ves. 534; Barry
v. Harding, 1 J. & L. 475. Sed
vide Parsons v. Freeman, 2 P.
"Wms. 664, Cox's note.

WJiat acts amount to an adop-
tion of a mortgage debt by the
owner of the estate.'] — The follow-
ing acts have been held to amount
to an adoption of the debt : —
Where the owner of property adds
mortgages of his own to other
mortgages created by his ancestor,
and unites them together, and
makes himself personally liable
for the payment of the aggregate
sum, the whole mortgage debt
then becomes his debt : Toicns-
hend v. Mostyn, 26 Beav. 72, 76 :
and see Bagot v. Bagot, 34 Beav.
134; 10 Jur. (N. S.)1169; 13 W.
E. (M. E.) 169.

Where the purchaser of the



DUKE OF ANCASTER V. MAYEH.



71:1



equit}- of redemption enters mto
IX covenant with the mortgagee to
pay him the mortgage debt, and
there is a new proviso for re-
demption on payment, he will be
considered to have adopted the
debt as his own : Earl of Oxford
V. Lady Rodney, 14 Yes. 417 ;
Woods V. Hnntingford, 3 Yes. 128 ;
Barry v. Harding, 1 J. & L. 485,
486.

But although the mere purchase
of an estate subject to charges as
an equity of redemption, does not
make the personal estate of the
purchaser liable to the charge, if
the charge is part of the price,
then the personal estate is liable.
— Per Lord Thiirlow, C.,in Billing-
hurst V. Walker, 2 Bro. C. C. 608,
recognising the doctrine laid down
in Co2}e v. Cope, Salk. 449 ; and
Belvidere v. Loirl Bodifort, Wallis
Rep. by Ljne, 45 ; 5 Bro. P. C.
299, Toml. Ed. Sed vide Tired-
delly. TweddeU, 2 Bro. C. C. 107,
^vhere Lord Thurlow disapproves
of that case. See also Woods v.
Lord Huntingford, 3 Yes. 181.
And see and consider Waring v.
Ward, 7 Yes. 337 ; Barry v. Har-
ding, 1 J. & L. 475.

Election by devisee and mortgagee
that mortgage shotdd he a charge
on the real estate.^ — Where a
mortgaged estate comes into the
hands of a person who is executor
and residuary legatee of the mort-
gagor, as well as heir or devisee
of the mortgaged estate, upon the
death of such person the mortgage



debt is a primar}^ charge on the
real estate. The leading case upon
this subject is Scott v. Beecher, 5
Madd. 96 ; there the owner of
copyholds, which he had mort-
gaged, devised them to his wife in
fee, and gave to her his personal
estate, and made her his residuary
legatee and executrix. The wife
died intestate without paying off
the mortgage. It was held by Sir
JoJin Leach, Y.-C, that her heir
was not entitled to have the mort-
gage paid out of the personal
estate. " The widow," said his
Honor, "was devisee of the copy-
hold estate, and was also residuary
legatee and executrix of the mort-
gagor. If she had thought fit, she
might have paid off the mortgage
out of the personal estate of her
husband, for it is admitted she
possessed assets sufficient to pay
aU the debts, including the mort-
gage, and it may tJicrcfore he said
that she elected to continue the mort-
gage as a charge on her real estate.
But I apprehend this is not a
case in which her personal repre-
sentative is bound to make out
any such fact of election. By the
gift to her as residuary legatee,
the personal estate of the testator
became her personal estate, but
the mortgage debt of the testator
was not her debt, and her heir
therefore has no equity to pay off
this mortgage out of her personal
estate." So likewise in the recent
case of Swainson v. Swainson, 6
l)e G. Mac. & G. 648, a testator
who had mortgaged his estates,



714



DUKE OF ANCASTER ?;. :\IAYEE.



gave all his real and personal
estate to his wife, and made her
executrix. She died without hav-
ing paid off the mortgagees. It
was held by Lord Cranworth, C,
afiirmmg the decision of Sii' J.
Stuart, V.-C, that her heir took
the mortgaged estates cum onere.
" Some propositions," said his
Lordship, " connected with the
case admit of no doubt. If the
owner of an estate mortgaged it
and died, and the representative
of his real estate was a different
person from the rej)resentative of
his personal estate, in this case
the real estate would be exonerated
from the debt at the expense of
the personalty. Again, where the
real and personal representative
of the mortgagor was the same
person, no question could arise.
What, however, was to happen if
the estate havmg come to some
person, that person died, and his
representatives were different, his
real estate going to one person
and his personal to another ? It
was here that the question arose.
"Without saying whether there
might be a preference in favour'
of the rule being one way rather
than another, the only point of
importance was that some rule
should be established. I have
always understood the rule to be
that when an estate in mortsfage
had once come to the hands of a
person filling the character both
of real and personal representa-
tive of the mortgagor, then the
charge became a debt of that per-



son, and was only an incumbrance
on the estate. That was the rule
laid down in Scott v. Beecher, and
it was acted on by Lord Lynd-
hurst in Evans v. SmitJison (cited
1 Y. & C. C. C. 701). The par-
ticulars of that case were not
known, but the rule was also fol-
lowed by Lord Langdale in TJie
Earl of Ilchester v. The Earl of
Carnarvon, 1 Beav. 209 ; and
again, although with reluctance,
by the present Lord Justice
Knight-Bruce in The Earl of Cla-
rendon V. Barham, 1 Y. & C. C. C.
688 ; it was again recognised and
followed by Lord Truro in Hick-
ling V. Boyer, 3 Mac. & G. 635,
644."

It has, however, been recently
decided that where the same per-
son becomes entitled to the mort-
gaged estate, and also to the per-
sonal estate of the mortgagor upon
his intestacy, on the death of such
person intestate, without having
taken out letters of admmistra-
tion, his heir will be entitled to
have the mortgaged estate exo-
nerated. See Bond v. England, 2
K. & J. 44 ; there James England
mortgaged real estate, and died
intestate in 1850, leaving his
father, Edward England, heir-at-
law, and sole next of kin. Ed-
ward England died intestate, and
without having obtained letters
of administration of the personal
estate of his son. It was held
by Sir IF. Page-Wood, Y.-C, that
the personal estate of tlie son was
liable, as between the heir and



PUKE OF AN'CASTER r. MAYER.



715



personal representative of the
father and son, to be applied in
discharge of the mortgage debt
in exoneration of the real estate.
" It api^ears to me," said his
Honor, " that the authorities
which have decided that when
the same person who is heir or
devisee of the mortgaged estate
is also executor and residuary
legatee, and has both the funds
and the legal right to pay himself,
his heir is not entitled to have
the mortgaged estate exonerated,
do not go far enough to enable me
to hold that the administrator of
Edward, who was entitled orAj to
so much of the entire personalty
of James as fell to him by the
effect of intestacy after all the
debts of James were paid, can
claim James's personalty until
the mortgaged debt is discharged,
or to hold even if the mortgagee
had chosen to sell the security,
so that the debt had been in a
manner discharged, that the de-
fendant, claiming as heir of James
as well as of Edward, has not a
right to say ' the personalty of
James never came to Edward, it
remains unadministered, and I
am entitled to have it applied in
relieving the mortgaged estate
from James's debt.' The case is
new in this particular. The views
on the general doctrine have been
very various ; but the latter deci-
sions have proceeded upon 'the
ground tliat the same party had
both funds under his control. I
cannot sav that this was the case



here, and I must therefore decide
in favour of the defendant, who
applies to have the mortgaged
estate exonerated."

In Hatch v. Skelton (20 Beav.
453), a testatrix, the owner of a
freehold estate, subject to a mort-
gage in fee to secure 1300/., de-
vised and bequeathed her real
and personal estate to Angell, the
mortgagee, who, in his residuary
account as her executor, repre-
sented the balance of the estate
as being 467/., and added, " The
executor will appropriate this ba-
lance towards payment of the
mortgage of 1300/. due to him-
self." Afterwards Angell devised
the estate to a niece and two
sisters of the testatrix, "provided
they undertake to receive the
same with all the liabilities at-
taching thereunto." It was held
by Sii- John Romilli/, M. E., first,
that under the cu'cumstances the
mortgage had not merged in the
fee ; and, secondl}', that the niece
and two sisters of the testatrix
took the estate subject to the
pa^Tnent of the balance of the
mortgage debt. See also Byam
V. Sutton, 19 Beav. 556.

As to the effect of lapse of time
upon the claim to exoneration, see
Neivhouse v. Smith, 2 Sm. & Giff.
344 ; Rooke v. Lord Kensington,
21 Beav. 470 ; Mellersh x.Bridger,
17 Jur. 908.

The law of the exoneration of
mortgaged estates as altered hy
statute.'] — The law relating to the



71C)



DUKE OF ANC ASTER T. MAYER.



exoneration of mortgagecl estates
having been found unsatisfactoiy,
it was enacted by Locke King's Act
(17 & 18 Vict. c. 113— which does
not extend to Scotland), that
"when any person shall, after
the 31st of December, 1854, die
seised of or entitled to any estate,
or interest in any land or other
hereditaments which shall at the
time of his death be charged with
the payment of any sum or sums
of money by way of mortgage,
and such person shall not, by his
will, deed, or other document, have
signified any contrary or other in-
tention, the heir or devisee to whom
such land or hereditaments shall
descend or be devised, shall not
be entitled to have the mortgage
debt discharged or satisfied out of
the personal estate, or any other
real estate of such person, but
the land or hereditaments so
charged shall, as between the
different persons claiming through
or under the deceased person, be
primarily liable to the payment of
all mortgage debts with wliich the
same shall be charged, every part
thereof, according to its value,
bearing a proportionate part of the
mortgage debts charged on the
whole thereof: Provided always
that nothing herein contained
shall affect or diminish any right
of the mortgagee on such lands or
hereditaments to obtain full pav-
ment or satisfaction of his mort-
gage debt either out of the per-
sonal estate of the person so
dying as aforesaid, or otherwise :



provided also, that nothing herein
contained shall affect the rights
of any person claiming under or by
virtue of an}' will, deed, or docu-
ment already made or to be made
before the first da}- of January one
thousand eight hundred and fifty-
five." (Sect. 1.)

It will be observed that tliis Act
only comprehends " any estate or
interest in any land or other here-
ditaments ;" the law, therefore, un-
der that Act, remained mialtered
as to the primary liability of the
general personal estate, to satisfj'
charges on propert}- not coming
within those terms.

"With regard to property the
mortgage of which comes witliin
the Act, it seems that copyholds
as well as freeholds are within its
provisions [Piper v. Piper, 1 J. &
II. 91) ; but leaseholds for years
are, by tlie language of the Act,
which speaks of "the heir or
devisee to Avliom such lands or
hereditaments sliall descend or be
devised " (words not applicable to
leaseholds for years), excluded
'from its operation, Solomon v.
Solomon, 12 W. E. 540, 10 Jur.
N. S. 331 ; 33 L. J. (Ch.) 473 ; In
re Wormslcy's Estate, 4 Ch. D.
665. But, by a bill of the Lord
Chancellor now before Parliament,
the Act is to be extended to lands
and hereditaments of all tenures.

It seems, however, that land
devised upon trusts for conversion,
and taken in its converted state,
is not an interest in lands within
the meaning of liocke Kino's Act :



DUKE OF ANCASTEE V. MAYER.



717



Lewis V. Lewis, 13 L. R. Eq.
218.

With regard to the question,
as to what is a sum charged by
way of mortgage within the
meaning of the Act (17 & 18
Vict. c. 113), it has been decided
that the Act only apphes
where there is a defined and
specified charge on a specified
estate {Hepworth v. Hill, 30 Beav.
476) : that it applies to an equit-
able mortgage of freeholds, by
deposit of deeds with {Pembrooke
V. Friencl, 1 J. & H. 132 ; Colehj
V. Colehj, 2 L. R. Eq. 803), or
without a memorandum : Davis v.
Davis, W. N. 1876, p. 242. A
vendor's lien, however, was held
not to be within the Act : Hood v.
Hood, 26 L. J. (N. S.) Ch. 616;
Barnwell v. Iremonger, 1 Drew.
& Sm. 255, 260. But by the Real
Estate Charges Amendment Act
(30 & 31 Vict. c. 69), it was
enacted that in the construction
of the former Act (17 & 18 Vict.
c. 113), and of this Act, 30 &
31 Vict. c. 69, the word " mort-
gage " shall be deemed to extend
to any lien for unpaid purchase-
money, uix)n any lands or heredi-
taments purchased by a testator.

But, by a Bill of the Lord
Chancellor now before Parlia-
ment, the Act is to be extended
to a lien upon any lands or here-
ditaments purchased by an in-
testate.

It having been enacted in gene-
ral terms by 17 ct 18 Vict. c. 1 13,
that the " niurlgngc debt shall nut



be discharged or satisfied out of
the personal estate or any other
real estate," the generaUt}'' of
those expressions is not limited
by the words " as between the
different persons claiming through
or imder the deceased person,"
and they have been held to apply
in favour of the Crown, claiming
personalty for want of next of kin :
Dacre v. PatricJcson, 1 Drew. &
Sm. 186.

With regard to the operation of
the last proviso in the same Act, it
has been decided that an heir taking
by descent after the passing of
the Act will not come within such
proviso, and consequently he will
not be entitled to exoneration,
although the mortgage deed by
which the equity of redemption
was reserved to his ancestor and
his heh-s was executed {Piper v.
Piper, 1 J. & H. 91) ; or the will
b}' which the personalty is be-
queathed was made {Power v.
Power, 8 Ir. Ch. Rep. 340) before
the 1st of Januar}', 1855.

An heir-at-law, or customary
heir of a testator, taking by de-
scent an estate which has been
the subject of a lapsed devise, in
a will made before the 1st day of
January, 1855, will not come
within the proviso exempting from
the operation of the Act (17 & 18
Vict. c. 113) persons " claiming
binder or by virtue of any ivill
made before the 1st day of
January, 1855." See Nelson v.
Page, 7 L. R. Eq. 25.

Where a devisee takes the



718



DUKE OF ANCASTER V. MAYER.



mortgaged estate under a will
made before the 1st of January,
1855, lie will come within the
meaning of the proviso, and be
entitled to exoneration, although
the devisor may have executed
another will after that date which,
without affecting the devise, ope-
rated as a republication of the
mil: Rolfe V. Perry, 3 De G.
J. & S. 481 ; 11 W. R. (L. C.)
674 ; 9 Jur. N. S. 853,

With reference to the question,
what will be considered " a con-
trary or other intention " within
the meaning of the Act, judges, as
might be expected, have differed,
and it has been observed by Lord
Westbury, C, that "it is impos-
sible to lay down a general rule as
to what is a sufficient signification
by a testator of an intention to
exclude the operation of the Act ;
and that in each case the intention
must be gathered from the whole
instrument :" Rolfe v. Perry, 3 De
G. J. & S. 481 ; 11 W. E. (L. C.)
674, 675 ; 9 Jur. N. S. 853.

Upon the construction of this
part of the Act, there is a dictuiq
of hovd Canqjbell, C.,in Woolsten-
croft V. Woolstencroft (2 De G.
F. & J. 347) (afterwards adopted
by the legislature — see 30 & 31
Vict. c. 69, post p. 719) to the effect
that the rule which had before
been observed with respect to ex-
empting personal estate, should
now be observed with respect to
exempting the mortgaged land
from the payment of the mort-
gaged money. With reference,



however, to this dictum. Lord
Justice Turner said that, "it
probably meant no more than
that the intention must be clearly
proved. If Lord Campbell in-
tended to say, that as before the
Act it had been necessary to show
an intention, not only to charge
the mortgaged estate, but also to
discharge the personalty', so now
it was necessary to show an inten-
tion, not only that another fund
should be charged, but also that
the mortgaged estate should be
discharged, he was not prepared
to follow him. In order to take a
case out of the Act, it was suffi-
cient to show a contrary intention :
this destroyed the analogy between
the two cases. In the one case,
the intention to be proved was
contrary to a settled rule of law ;
in the other, it was only contrary
to a statutoiy rule, expressly made
dependent upon intention." Eno
V. Tatham, 11 W. R. (L. J.)
475 ; S. C, 4 Giff. 181 : and see
MclUsh V. Vallins, 2 J. & H. 194.
It has been decided that a mere
direction by the testator that the
debts "shall be paid as soon as may
be " (Pembrooke v. Friend, 1 J. Sc
H. 132), even although the real
estate in mortgage be devised in
strict settlement {Cootev. Lowndes,
10 L. R. Eq. 376) ; or that debts
should be paid " out of his estate "
{Bron-nson v. Laurance, 6 L. R.
Eq. 1) ; or by his " executors out
of his estate " (Woolstencroft v.
Woolstencroft, 2 De G. F. i Jo.
347, reversing the decision of Sir



DUKE OF AXCASTER V. MAYEB.



719



J. Stuart, Y.-C, 2 Giff. 192), the
source from which the payment is
to be made not being mentioned,
will not show a contrary or other
intention sufficient to exonerate
the mortgaged estate from its
primary liability.

Where, however, the personal
estatey/as bequeathed upon trust to
pay (Moore v. Moore, 1 De G. Jo.
& Sm. 602, reversing the decision
of Sii- J. Eomilly, M. R., 10 W. R.
877), or subject to the payment of
{Eno V. Tatham, 11 W. R. (L. J.)
475 ; S. C, 4 Giff. 181 ; Mellish
V. Vallins, 2 J. & H. 194) debts,
these words have been held suffi-
cient to show a contrary intention
within the meaning of the Act
so as to charge the personalty
I)rimarily with the payment of the
mortgage debts on estates de-
vised by the will. See, also, Smith
V. Smith, 8 Giff. 263; Smith v.
Smith, 10 Ir. Ch. Rep. 89, and
on appeal, lb. 461 ; and Maxwell
V. Maxwell, 4 L. R. Ho. Lo. 506,
affirming S. C. nom.. Maxwell v,
Hyslop, 4 L. R. Eq. 407, where it
was held that a Scotch heritable
bond, given by a domiciled Eng-
lishman, was payable in exonera-
tion of the estate upon which the
bond was charged out of his resi-



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