1Bear:530 may not pay off the mortgage, and retain the estate (k). On the same principle, if a feme covert be possessed of a mortgage in fee, and die, and the lands descend on her heir, her husband will be entitled as her administrator(); and, in like manner, a mortgage in fee made to a citizen of London, was held to be part of his personal estate, and divisible according to the custom (m); and in all these cases, the heir at law will be a trustee for the persons beneficially entitled, and be decreed to convey. If two persons advance money jointly on mortgage, and one of them die, the debt will at law belong to the survivor, but in equity there will be a tenancy in common (n); and, therefore, on paying off the mortgage, the concurrence of the personal representatives of the deceased mortgagee is necessary, to give a valid discharge to the mortgagor. The consequence is, that when money is lent by trustees, and it is not desirable to put notice of the trust on the mortgage deed, it has become a practice to insert a declaration, that if one of the mortgagees shall die before the money is paid off, the receipt of the survivor shall be a sufficient discharge; and that the concurrence of the personal representative of the deceased mortgagee, shall not be requisite. If lands in mortgage are foreclosed by two or more persons, or the equity of redemption is released to them, the (1) Turner v. Crane, 1 Vern. 170. (k) Vide supra, page 608. Eq. Ca. 290; et vide Cowell / Beas: 529 parties will in equity hold the lands as tenants in common (o). The rule appears formerly to have been, that if the mortgagee devised the lands to one for life, with remainder to another in fee, and the money was afterwards paid in, the tenant for life was entitled to one-third part of the principal, and the remainderman to the residue (p). But at the present day it is conceived, the whole money must be invested on trusts corresponding with the limitations of the estate. The receipt of one of several executors is a sufficient discharge of a debt due to the testator, for each executor represents the deceased (9); and therefore if the mortgage is paid to one only of several executors, whether before or after probate, he may give a valid release (r). If a mortgage, whether for a term of years or in fee, belong to a married woman, the husband may reduce it into possession during their joint lives; and if it be for a term of years, he may alone surrender the term; but if it be in fee, a conveyance from him and his wife may be necessary. If the mortgage be for a term of years, he may alone assign the term and debt (s), either for or without a valuable consideration; and it will be binding on the wife sur (0) 2 Ves. 258; 3 Ves. 631. (p) Vide Brent v. Best, 1 Vern. 70. (q) 2 Ves. 267. (r) Austen v. Executors of Dodwell, 1 Eq. Ca. Ab. 319. (s) Packer v. Wyndham, Ch. Pre. 412; 207, more fully reported 3 Russell, 72. Bates v. Dandy, 2 Atk. viving (t). If the mortgage be in fee, and he assign it without his wife's concurrence, or if he become bankrupt, then, it is conceived, equity will not compel her to join in a conveyance without a settlement of part being made upon her, supposing her husband had not become a purchaser of her personal estate by marriage settlement (u); and if her husband should die before the legal fee be divested out of her, it may be questionable whether she might not be enabled to recover the whole debt against either the particular or general assignee (r). If the husband survive, he will become absolutely entitled to the money, and the heir at law of the wife (if the mortgage be in fee) will be a trustee for him; but if the wife survive, and it be not reduced into possession or legally assigned away, it will survive to her. (t) Mitford v. Mitford, 9 Ves. 98. (u) Vide Wright v. Morley, 11 Ves. 17; Beresford v. Hobson, 1 Madd. 373. (x) Mitford v. Mitford, supra; Packer v. Wyndham, supra; Gilb. Lex Præt. 277; sed vide contra Bosvil v. Brander, 1 P. Wms. 459; and see Purdew v. Jackson, 1 Russell, 39, arguendo. BOOK THE SIXTH. CHAPTER I. OF THE RIGHT OF REDEEMING. THE right of redemption being a creature of equity must be subject to the rules of equity. The Court, therefore, will make terms with the mortgagor, if necessary, before it permits him to redeem; and the decree for redemption will be either absolute or conditional, as suits the circumstances of the case. Of this, an instance occurs (a) in which a mortgagee, having purchased the estate for a valuable consideration, a third party made adverse claim to the right of redemption, but was desirous of having the validity of the mortgage tried at law, before he should redeem; the Court held that he ought to declare whether he would redeem or not before he disputed the title, and that if he would redeem he ought to pay the defendant all his principal money, damages, and costs, which he refusing, (a) Smith v. Vallance, 1 Ch. Rep. 170; et vide Goodtitle v. Bailey, Cowp. Rep. 601. the Court dismissed the bill: and in another case (c), in which an infant heir of a mortgagor, by his guardian, having fruitlessly endeavoured by proceedings at law to overthrow the mortgagee's title, brought his bill to redeem, but the Court would not allow redemption, unless the mortgagor would pay a sum of money which the mortgagee, on his oath, declared he had paid above his taxed costs, in defending the title at law, and the Court also allowed him his costs of taking out administration to the mortgagor as principal creditor. The general rule of equity however is, that the Court will render its assistance to all pernors of the profits, and all persons claiming any share or interest in the equity of redemption, unless, indeed, their title may have been obtained by fraud, as in a case (d) in which a man having married an infant heiress, procured her to levy a fine, and the father of the husband was one of the commissioners who took the fine, the use of which was declared, on failure of their issue, to the survivor in fee; the wife died without issue, and an infant; the husband afterwards made a mortgage in fee, and died; on which the equity of redemption descended on his uncle, and from him on the father of the husband, and from him on the wife of the plaintiff. The defendant was the heir of the wife, who had bought in the mortgage, and obtained possession of the title deeds, and got into possession, and, being in possession, had levied a (c) Ramsden v. Langley, 2 Vern. 536. |