for the benefit of certain persons; the rent of the house having Chap. proved insufficient to keep down the interest on the mortgage XXXV. (v.) debt, it was held that A. and B. were not bound to make up the deficiency (b). Where money is borrowed by way of a grant of a redeemable Annuity. annuity out of land, the annuity must be valued, and the tenant for life under the will of the borrower, as between him and the remainderman, is only bound to pay interest on the estimated value of the annuity at the death of the grantor (c). life. The assignee and judgment creditor of the tenant for life are Assignee of subject to the same liability to keep down the interest as the tenant for tenant for life himself (d). Where the mortgagee (e) having permitted the tenant for life to run in arrear, purchased the life estate, the Court directed him to apply the surplus rent beyond the current interest towards liquidation of the arrears. wife. If the estate of the wife is subject to a mortgage, the husband Husband and and wife are not bound to keep down the interest for the benefit of the heir of the wife; and, therefore, the amount of interest actually due at the death of the wife should be added to the principal, and the husband, entitled as tenant by the curtesy, should keep down the interest of the aggregate sum during the remainder of his life. But he is not entitled to any allowance for interest actually paid by him during his wife's life (ƒ). Where the estates of the husband and wife were mortgaged to secure the husband's debt, which was paid off out of the produce of the wife's estate, the representatives of the wife were not allowed interest on the sum paid against the husband's estate (g); apparently because it constituted a mere simple contract debt which did not carry interest. tail. A tenant in tail in possession cannot be compelled to keep Tenant in down the interest on a mortgage, because the reversioner and remainderman are considered as wholly in his power (h). But an exception to the rule arises if the tenant in tail is an infant, in which case the reasoning does not apply; and it is therefore decided that the guardians or trustee of an infant tenant in tail (b) Syer v. Gladstone, 30 Ch. D. 614; Re Kensington, Longford v. K., (1902) 1 Ch. 203. (c) Bulwer v. Astley, 1 Ph. 422. (d) Scholefield v. Lockwood, 4 De G. J. & S. 22. (e) Lord Penrhyn v. Hughes, 5 Ves. 106; and Amesbury v. Brown, 1 Ves. Sen. 477. (f) Ruscombe v. Hare, 2 Bli. N. S. 192. (g) Lancaster v. Evors, 10 Beav. 154, 266. (h) Amesbury v. Brown, 1 Ves. Sen. 477; Chaplin v. Chaplin, 3 P. Wms. 235. Chap. are bound to apply the rents in keeping down the interest; and XXXV. (v.) if the guardian permits the interest to run in arrear during the infancy of the tenant in tail, an account of the rents and profits will be decreed after the infant's death (i); and this is so though the infant has a general power of appointment (). And even in the case of an infant tenant in fee, the guardian is bound to keep down the interest of incumbrances out of the rents, and not increase the infant's personal estate at the expense of the real estate (1). If a tenant in tail of full age keeps down the interest and dies, his personal representative will not be a creditor for the amount of interest paid, but the remainderman or reversioner will have the benefit (m); and in a case in which it appeared that a man, being seised of lands in right of his wife, who was tenant in tail in possession, subject to a subsisting mortgage, took in the mortgage, and during his wife's life was himself in receipt of the rents, the Court, after the wife's death, on a bill filed by the reversioner to redeem, refused the husband interest on the mortgage during the period he had been in possession of the rents (n). No escheat now for felony. vi. Escheat and Forfeiture. It was long ago enacted (0) that no land, stock or chose in action vested in any person by way of mortgage (except as to the mortgagee's beneficial interest therein) shall escheat or be forfeited by reason of the attainder or conviction of the mortgagee. And by the Forfeiture Act, 1870 (p), escheat and forfeiture for treason and felony were abolished except forfeiture consequent on outlawry (q); and by the same Act provision is made for vesting the convict's property in an administrator to be appointed by the Crown. By the Trustee Act, 1893 (r), property vested in any person by way of mortgage does not, on that person becoming a convict, vest in the administrator appointed under the Forfeiture Act, but remains in the mortgagee or descends to his representatives; (i) Sergison v. Sealey, 2 Atk. 416; Burgess v. Mawbey, 1 T. & R. 167, and cases there cited; Bertie v. Lord Abingdon, 3 Mer. 566. (k) Whitbread v. Smith, 3 D. M. & G. 727, 741. (1) Jennings v. Looks, 2 P. Wms. 276. (m) Amesbury v. Brown, sup. at p. 481. (n) Amesbury v. Brown, 1 Ves. Sen. 477. And see Ware v. Polhill, 11 Ves. 278; Ruscombe v. Hare, 2 Bli. N. S. 192; Lord Penrhyn v. Hughes, 5 Ves. 99. (0) 13 & 14 Vict. c. 60, ss. 46 and 47; replacing 4 & 5 Will. IV. c. 23. (p) 33 & 34 Vict. c. 23. (9) Outlawry in civil proceedings is abolished by 42 & 43 Vict. c. 59, s. 3. (r) 56 & 57 Vict. c. 53, s. 48; replacing 13 & 14 Vict. c. 60, ss. 46, 47. but the Act does not affect any beneficial interest of the mortgagee in the property. The legal estate, as well as the beneficial interest in mortgaged property, may, however, still escheat where the mortgagee is illegitimate and dies intestate and without issue. Where an estate had been mortgaged for a term, and afterwards by way of equitable deposit of title deeds, beyond its value, it was held that the mortgagor was not a bare trustee under the Act for the mortgagee, so as to prevent an escheat of the legal fee to the Crown (s). Chap. XXXV.(vi.) The Crown may redeem such estates as vest in it by for- Forfeiture of feiture (t). An equity of redemption of a mortgage in fee was liable to forfeiture for treason, but not for felony (u); but the equity of redemption in the case of a term was forfeited by either treason or felony (r). Now, however, as we have seen, forfeiture for treason and felony has been abolished (y), and administrators are appointed by the Crown of the property of any convict, who may pay his debts; and the property of the convict, on completion of his sentence or on his death, reverts to him or his heirs. equity of redemption. redemption Formerly, in case of death intestate and without an heir, the Escheats of equitable interest of a cestui que trust in land, or in the proceeds equity of of sale of land devised upon trust for sale, did not escheat to in realty. the Crown, but vested beneficially in the trustee (≈): similarly, in such a case an equity of redemption was not liable to escheat, and, accordingly, Lord Eldon thought that the mortgagee might refuse to be redeemed by anyone (a). It was, however, decided in a later case that the mortgagee did not take the equity of redemption absolutely, but as assets for the payment of the debts of the mortgagor, whose legal personal representative, therefore, had a right to redeem (b). But now, by the Intestates' Estates Act, 1884 (c), where a Intestates person has died since the 14th of August, 1884, without an heir Act, 1884. (s) Rogers v. Maule, 1 Y. & C. C. C. 4. (t) Att.-Gen. v. Crofts, 4 Bro. P. C. 136. (u) Att.-Gen. v. Sands, Hard. 488; Lovell's case, 1 Salk. 85; Att.-Gen. v. Crofts, 4 Bro. P. C. 136. But see Sugd. Gilb. on Uses, 78, note. (x) See Sugd. Gilb. on Uses, 79. (y) 33 & 34 Vict. c. 23. (z) Burgess v. Wheate, 1 Ed. 177. (a) Gordon v. Gordon, 3 Swanst. 470. Chap. and intestate in respect of any real estate consisting of any XXXV.(vi.) equitable estate or interest in land, corporeal or incorporeal, the law of escheat is to apply in the same manner as if the estate or interest were a legal estate in corporeal hereditaments. Crown sub When an estate is mortgaged beyond its value, but the legal ject to debts. estate is left in the mortgagor and escheats to the Crown, the estate may be sold in an administration suit, and a grant be applied for from the Crown (d), or in a suit by the mortgagee (not being a creditor's suit) he will be decreed to hold against the Crown until the mortgage debt is paid (e). Prerogative of Crown as to mortgaged personalty. Land Trans If a mortgagor of personalty dies intestate without any next of kin, the Crown, by virtue of its prerogative, will stand in their place (f), subject, nevertheless, to the right of his widow to the amount or value of 5007. (g), and to a moiety of the residue of the mortgaged property, if of greater amount or value (). As regards escheated land, the Land Transfer Act, 1897, does fer Act, 1897. not bind the Crown, and accordingly it does not affect the legal estate in such land (i). Escheat to lord. Curtesy. The lord, under the reservation of the equity of redemption to the mortgagor, his heirs, executors, administrators, and assigns, takes it by escheat, as an assign in law, as belonging to the inheritance (k). So the lord would, in equity, be entitled to a term of years attendant upon the inheritance as part of the escheated property (1), and a mortgagee of a term cannot (at least since 3 & 4 Will. IV. c. 104, under which the lord out of the lands escheated has to pay the mortgage debt (m)), hold the term against the lord claiming to redeem as taking the reversion by escheat (n). vii. Curtesy and Dower.-In consistency with the anomalous decision of equity, that there should be a tenancy by the curtesy, but not dower, of a trust estate, the like was decided (d) Rogers v. Maule, 1 Y. & C. C. C. 4. (e) Hodge v. Att.-Gen., 3 Y. & C. Ex. 342. (f) Taylor v. Haygarth, 14 Sim. 8; Powell v. Merrett, 1 Sm. & G. 381. See 39 & 40 Vict. c. 18, repealing 15 & 16 Vict. c. 3. (g) 53 & 54 Vict. c. 29. (h) See Care v. Roberts, 8 Sim. 214. of an equity of redemption. The right to tenancy by the curtesy was at first disputed, on the notion already mentioned, that the equity was but a right, of which a seisin could not be had by the wife so as to give title to the husband; but Lord Hardwicke, in deciding the equity to be an estate, decided also the right to the tenancy by the curtesy (0). Chap. (vii.) It was formerly regarded as settled that a widow could not Dower. claim dower out of an equity of redemption (p) though the contrary was held in one case (q). But the statute 3 & 4 Will. IV. c. 105, removed this anomaly, by enacting that when a husband shall die beneficially entitled to any land for an interest, which shall not entitle his widow to dower out of the same at law, and such interest, whether equitable or partly legal and partly equitable, shall be an estate of inheritance in possession, or equal to an estate of inheritance in possession (other than an estate or joint tenancy), then his widow shall be entitled in equity to dower out of the same. The statute has, however, placed the right to dower in an equity of redemption absolutely within the disposal of the husband, who may deprive his widow of it wholly or pro tanto by subsequent alienation or charge, or by simple declaration of intention by deed or will. viii.-Devolution, Devise, &c., of Equity of Redemption.- Devolution of An equity of redemption being an estate in the land without equity of redemption in change of ownership, it necessarily follows that its line of freeholds. devolution must, in the course of descent, be governed as the land itself would have been, by the general law (→); or by the lex loci; and therefore, if the land be of gavelkind tenure, the equity of redemption will be divisible in like manner; or if the tenure be borough-English, the youngest son will be entitled. So an equity of redemption in copyholds would before the Land Transfer Act, 1897, descend to the customary heir of the mortgagor, as the legal estate would have done (8). It also follows that the doctrine of possessio fratris would formerly have applied in exclusion of the half-blood (t). (0) Casborne v. Scarfe, 1 Atk. 602; ante, p. 649. (p) Att.-Gen. v. Scott, Cas. t. Talb. (Williams) 138, and cases in note; D'Arcey v. Blake, 2 Sch. & L. 391. (q) Banks v. Sutton, 2 P. Wms. 700. (r) Duly v. Nalder, 11 Jur. N. S. 921. (s) Fawcet v. Lowther, 2 Ves. Sen. 300, 304. See Blake v. Foster, 2 Ba. & Be. 387, 402. (t) But see 3 & 4 Will. IV. c. 106, 8. 9. |