Where a first Encumbrancer by Judgment, has likewise a Mortgage, though there is another Judg ment prior to the Mortgage, yet if the Mortgagee had no Notice of it the Court will not direct a Sale of the Estate in favour of the Creditor, upon the second Judgment, unless he will pay off the Principal and Interest of the first Judgment and Mortgage (c). It has been held that a Mortgagee is not permitted to tack, as against Assignees in Bankruptcy, a Mortgage subsequent to an act of Bankruptcy, though without notice, and previous to the Commission (d), for by such Mortgage no Interest passes (e); but it is apprehended that, under the 46 Geo. 3. c. 135, if the subsequent Mortgage was made bona fide two months before the date of the Commission, without notice of any prior act of Bankruptcy or that the Mortgagor was insolvent or had stopped payment, the same might be tacked. An Heir, or the Devisee of mortgaged Premises (f), (unless it be a Devise for payment of Debts) (g) cannot redeem a Mortgage without paying a Bond (h), though there is no Judgment; and this, to prevent a circuity of Action; but that Equity does not prevail against a Purchaser, an Assignee of the Equity of (c) Sir H. Smithson V. Thompson, 1 Atk. 520. (d) Archer v. Snatt, 2 Str. 1107. see 2 Black. Rep. 726. (e) Ex parte Knott, 11 Ves. 686. (f) 3 Atk. 630; and see Ambl. 686. (g) Heames v. Bance, 3 Atk. 630. Price against Fastnedge, Ambl. 686. (h) Coleman v. Winch, 1 P. Wms. 775. Anon. 2 Ves. 662. Shuttleworth v. Laycock, 1 Vern. 245. Ambl. 685. Grounds and Rudiments of I.aw and Equity, 65. 2 Chan. Cas. 164. Redemption, for instance(); the Bond-Creditor having no lien upon the Land (k); nor can he tack where there are intervening Encumbrances of a superior nature between his Mortgage and the Bond (1); nor can a Bond be tacked to a Mortgage as against Creditors seeking to redeem after the death of the Mortgagor, though it may against the Heir (m). If a Mortgagee in Fee lends Money to the Mortgagor on Bond, and the Mortgagor dies, and his Heir sells the Equity of Redemption, the Vendee may redeem the Land without paying the Bond Debt (n). So if an Executor files a Bill to redeem a Mortgage of a Term for Years, he must pay a Bond Debt also due (0); but if the Equity of Redemption be assigned by the Executor, the Assignee may redeem without paying the Bond (p). If the Heir of a Mortgagor of Copyhold Premises files a Bill to redeem, the Defendant cannot insist upon tacking a Judgment, because the Copyhold Lands are not liable to an Execution upon a Judgment (g). If Tenant for Life, Remainder to his Son in Tail, (i) Coleman v. Winch, 1 P. Wms. 775. Troughton v. Troughton, 3 Atk. 657. S. C. 1 Ves. 86; and see 2 Salk. 84. (k) Ex parte Herbert 13 Ves. 183, overruling Collet v. De Golls, For. 65. see also 1 Sch. & Le Froy, 152. (1) Powis v. Corbet, 3 Atk. 556. (m) Hamerton v. Rogers, 1 Ves.jun. 513. Lowthian against Hasel, 3 Bro. C. C. 162; and see Vanderzee against Willis, 3 Bro. C. C. 23, Coleman Hillier v. Wilkins, in Chan. (n) Prec. Chan. 89, 2 Str.. (0) See Eccles v. Shawill, (p) Coleman v. Winch, 1 P. (q) Heir of Carron and Park, Mortgages the Lands, and the Son afterwards borrows Money of the Mortgagee, and Mortgages his Interest in the Land, he may redeem without paying his Father's Mortgage (r). It has been holden, that where A had two Mortgages on different independent Estates of the Mortgagor, one, a deficient Security, and the other, more than sufficient, the Mortgagor cannot redeem the latter without making good the deficiency of the other Security (s); nor, where there are two separate Mortgages of different Estates to the same Person, can a Purchaser of the Equity of Redemption of one of them redeem that Mortgage only; if he redeems at all, he must redeem both (t). After the Foreclosure and Sale of a mortgaged Estate, an Action by the Mortgagee for the balance opens the Foreclosure; but where the Mortgagee had taken possession a considerable time, and the balance was inconsiderable, a perpetual Injunction was decreed (u). 2. With respect to the Foreclosure of a Mort gage, it has been determined that a Mortgagee may file a Bill of Foreclosure, without taking Possession. A Mortgagee cannot be compelled to take (r) Bromley v. Hammond, 2 Chan. Cas. 23. Eq. p. 2, for he does not take the Estate as Heir to his Father. (s) Shuttleworth v. Laycock, 1 Vern. 245. Margrave v. Le Hooke, 2 Vern. 207. Pope v. Onslow, 2 Vern. 286, and what is said Arg. 1 Vern. 29, and in 2 Ch. Rep. 23. sed vid. observations on Pope v. Onslow, by Lord Hardwicke, in ex parte King, 1 Atk. 300. (t) Ex parte Curter, Ambl. 733. Heir of Carron v. Pack, 6 Vin. 222; and see Ireson v. Denn, 2 Cox, 425. Cator v. Charlton, cit. 2 Ves. jun. 377. Collet v. Munden, cited Ibid. Jones v. Smith, a Ves. jun. 372. Willis v. Lugg, 2 Eden's Rep. 78, contra. (u) Perry v. Barker, 13 Ves. 198. S. C. MS. possession; for by so doing he would subject himself to an account, which the Court will not force him to do (a). After the death of the Mortgagor, in case the personal Estate of the Mortgagor is deficient, a Mortgagee may pray a Sale of the mortgaged Premises, in the first instance, where the Heir and personal Representative are the same Person (y). Where an Advowson is mortgaged, instead of bringing a Bill of Foreclosure the Mortgagee should pray a Sale of the Advowson (z). A Pawnee of Stock is not bound to bring a Bill of Foreclosure of the Equity of Redemption of the Stock, but may sell it (a). And it has been held, that Exchequer Annuities (b), or East India Stock (c) mortgaged, may be sold upon notice, without a Bill of Foreclosure, which, it seems, would be dismissed (d). If the Mortgage be of a reversionary Interest in Stock, the Mortgagee by his Bill must pray, that the Money may be paid, or that a Sale shall be made, and then the Court will make the usual Decree, as in other Mortgages, for payment of the Mortgage-money; and if the Money is not paid as directed, a Sale takes place (e). But a Mortgagor of Stock may file a Bill for an account of what is due, and to have a transfer (ƒ). A Mortgagee of a Copyhold Estate, who is not in possession, may bring his Bill against the Mortgagor, before admittance, for a Decrce of Foreclosure, and after he has obtained such Decree may proceed in Ejectment for Possession of the mortgaged Premises (g). Where a Bill is filed to foreclose a Mortgage of an Estate-Tail, the Court does not compel the Tenant in Tail specifically to suffer a Recovery, but decrees him to make a good Title to the Mortgagor (h); but on a Covenant of a Tenant in Tail Mortgagor, for further assurance, it be laid hold of as a ground to enforce a Recovery (i). A Decree of Foreclosure against a Tenant in Tail, or a release by him, is binding on his Issue (k). Where a Trustee had laid out the Money of different Persons on a Mortgage, a Foreclosure was permitted by one Cestui que Trust, as to his Share (1). And where a Mortgagee had assigned the mortgaged Property to a Person in Trust for three others, who each advanced a third of the Money, one of the three was permitted to file a Bill to foreclose, but the other two were considered as necessary Parties, they all being Joint-tenants (m). If a Bill filed by a Mortgagor for a Redemption is dismissed for nonpayment of the Mortgage-money at the day appointed, such dismissal operates as a Foreclosure, and is equivalent to a decree for a Fore (g) Sutton v. Stone, 2 Atk. 101. (h) Ibid. (i) Tourle v. Rand, 2 Bro. C. C. 650. Pye and Daubuz, 3 Bro. C. C. 595. (k) Reynoldson v. Perkins, Ambl. 564. Roscarrick v. Barton, 1 Ch. Cas. 217. (1) Montgomerie v. the Marquis of Bath, 3 Vės. 560. (m) Lowe v. Morgan, 3 Ves. 368. |