whether the infant will be bound, or will have six months after he comes of age to shew cause (c). It has been already stated, that in case of infancy, a sale should be prayed by the mortgagee (d), by which the infant will be bound (e); the practice however has been, that if the infant is decreed to join in the conveyance, a day must be given him after he comes of age, within which he may shew cause to the contrary (f). But to this the provision in the 1 Will. IV. cap. 47, against the parol demurring, may be held to apply. And if the mortgagee is willing to dispense with the infant's concurrence, a sale may be made without him, and consequently a day need not be given him (g). The same reasoning does not hold in the case of coverture as of infancy, for the law considers that a woman, on her marriage, has reposed in her husband sufficient authority to protect her interests, and therefore a decree of foreclosure against a married woman and her husband, of the right of redemption in the wife, will be binding, and she will not be allowed a day after discoverture (h). Chambers in the inns of court appear to be sub (c) Vide Gregory v. Molesworth, 3 Atk. 625; Napier v. Effingham, supra. (d) Supra. (e) Booth v. Rich, 1 Vern. 295. (f) Cooke v. Parsons, 2 Vern. 429; Pre. in Ch. 184; Fountain v. Caine, supra; Adams v. Gould, 2 Dick. 443. Sed nunc vide 1 Will. IV. c. 47, s. 10; and Powys v. Mansfield, 6 Sim. 638. (g) Cooke v. Parsons, supra. (h) Mallack v. Galton, 3 P. Wms. 352. ject to the local jurisdiction and authority of the benchers, and the courts of law will not interfere in respect of them; but if the benchers decline to exercise their authority, the ordinary courts will take cognizance of the question; and, therefore, if the benchers refuse to make an order for the foreclosure, or sale of chambers in mortgage, a decree may be obtained in a court of equity (i). In another part of this Treatise (k), when speaking of mortgages of the equity of redemption, it has been stated that, by legislative enactment (1), a fraud by the mortgagor in executing a second mortgage without giving previous notice of the existing mortgage, is punishable by the loss of his right of redemption, provided other lands are not added in the second mortgage to those in the first mortgage; it is not, therefore, in this place requisite to explain the law on this point. The final order to a decree of foreclosure is absolutely necessary to its perfection, so much so that without its being obtained, a decree of foreclosure is not a good plea to a bill to redeem (m); but a release by the mortgagor, after the first decree, would be tantamount to a final order (n). In matters of foreclosure, computation of time must be by calendar, and not lunar months (o). (i) Rakestraw v. Brewer, Select Ca. in Ch. 55; 2 P. Wms. 511. (n) Reynoldson v. Perkins, Amb. 564. (0) Anon. Barnard. 324; 2 Eq. Ca. Ab. 605. CHAPTER V. TO WHOM THE MONEY AND LANDS IN MORTGAGE WILL BELONG. So long as the money and lands in mortgage retain their respective characters impressed upon them in equity, that is, so long as the debt remains the principal, and the land the pledge, so long the mortgage will be personal assets; and accordingly, if the mortgage be in fee, and the mortgagee die, his heir or devisee will be a trustee for the executor (a), and if the heir receive the money, it may be recovered from him by the executor (b). Doubts were formerly entertained in this respect in cases in which the mortgage was in fee, and there was neither bond nor covenant for payment of the money (c), or where the condition for redemption was upon payment to the mortgagee, his heirs or executors. But these are so completely removed, as to render it a mere waste of time to enter into a consideration of the cases upon the subject; the law being now clear, that whatever may be the form of the mortgage, it will be part of the personal assets of the mortgagee, and, conse (a) Barnard. 50. (b) Tabor v. Tabor, 3 Swanst. 636. (c) Tilley v. Egerton, 1 Rep. in Ch. 181. See also the several cases noticed in 3 Swanst. 631. quently will, on his death, unless he direct the contrary, belong to his personal representatives (d). It is indeed open to the mortgagee in the case of a mortgage as well as of any other part of his personal estate, as between his real and personal representatives, to convert it into land, and make it pass as such accordingly (e). But this depends on other principles of equity, and on the manifest declared intent of the testator, it being evident, that if a testator expressly devise to another the mortgaged lands by name, as real estate, he intends the devisee should have the full benefit of all his interest in that property. On this principle if a man purchase an estate, which afterwards proves to be subject to an equity of redemption, and dies, the money will belong to his heir, and not to his executor (ƒ). In like manner, if mortgage-money be articled to be laid out in land and settled, the money will be bound by the articles (g). If the mortgagee in his lifetime obtain a release of the equity of redemption, or obtain an absolute decree of foreclosure, and enter into possession, it is manifest that the debt and land have altered their (d) See Thornbrough v. Baker, 1 Ch. Ca. 283, and 3 Swanst. 628; Noy . Ellis, 2 Ch. Ca. 220; Turner's case, 2 Vent. 348; Hardress, 467; Canning v. Hicks, 2 Ch. Ca. 187; Wynn v. Littleton, 2 Ch. Ca. 51, 52; Sir Thomas Littleton's case, 2 Vent. 351. (e) Noys v. Mordaunt, 2 Vern. 581; Gilb. Rep. in Ch. 2; Pre. in Ch. 265. (f) Cotton v. Iles, 1 Vern. 271; Maxims in Equity, 21, 22. (g) Lawrence v. Beverley, cited 3 P. Wms. 217. characters, for the land has ceased to be a pledge, and the debt has become merged in the land, and, consequently, if from any circumstances after the death of the mortgagee, the foreclosure shall be opened, or the release set aside, it is submitted that the heir, and not the executor, will be entitled to the money inasmuch as the mortgagee has done all in his power to make it real estate. This doctrine was applied in favour of a devisee, in a case in which a decree nisi only had been obtained on a bill for foreclosure; the mortgagee dying before a final decree (h); although, with regard to creditors, the mortgage was still held to be personal assets for the payment of debts. As the personal representatives are entitled to the money, and, as the land is, in equity, a pledge for the payment of it, it follows, that if the pledge is forfeited, the personal representative must be also entitled to the land composing the pledge; and therefore, if the mortgagee die, and his heir obtain a release of the equity from the mortgagor, or the land becomes irredeemable from length of time, it will nevertheless belong to the personal representative (i), and the heir will be a trustee for him; although if the heir foreclose, it seems questionable whether he (h) Garrett v. Evers, Moseley, 364; sed vide Thompson v. Grant, 4 Madd. 438. (i) Ellis v. Gnavas, 2 Ch. Ca. 50; Canning v. Hicks, ibid. 187; 1 Vern. 412; Tabor v. Grover, 2 Vern. 367; 1 Eq. Ca. Ab. 328; Wood v. Nosworthy, cited 2 Vern. 193; Clerkson v. Bowyer, ibid. 66. |