Chap. XXXVIII. § 1 (i). Dowress and tenant by curtesy. Devisee. Personal representatives. to the circumstances of the case; to such heir the right of redemption of course belongs; and upon an action by an heir-atlaw to redeem, a primâ facie title is sufficient (g). So, also, if the land be gavelkind or borough-English, the heir special will be entitled to redeem (h). A dowress (1) may redeem. So, also, may a tenant by curtesy (k). The devisee of the equity of redemption is entitled to redeem, and he need not make the heir-at-law of the mortgagor a party, unless he claims to have the will established (7). And a devisee has a right to redeem against a purchaser from a pretended heir, with notice of the pendency of a suit to establish the will (m). If the subject-matter of the mortgage is leasehold or other personalty, the legal personal representatives of a deceased mortgagor may redeem. But if the mortgage is of realty in fee, the personal representatives could not, before the Land Transfer Act, 1897, redeem in the absence of the heir-at-law or customary heir or devisee (). Even though the mortgage was for a term created out of the inheritance, the legal personal representatives could not redeem; so also if the equity of redemption escheats to the Crown (o). So, where freeholds were mortgaged for a term, and the owner of the equity of redemption, by his will, directed the mortgage to be paid off and the term to be assigned to one person, and devised the fee to another person, it was held that the right to redeem passed to the devisee of the fee (p). But personal representatives can now redeem a mortgage of freeholds (9). The persons who are to avail themselves of the equity of redemption must be the same as those who, during the time fixed in the mortgage deed, could have redeemed at law, or their representatives or assigns; for otherwise equity would alter the bargain; and therefore, where a term of years is mortgaged by an executor or administrator, the equity of redemption passes to (g) Pym v. Bowerman, 3 Swanst. (i) Palmes v. Danby, Prec. Ch. 137. (k) Jones v. Meredith, Bunb. 346. 2 Ves. Sen. 431; Phillips v. Hele, 1 Rep. in Ch. 191. See 1 Viet. c. 26, s. 3. (m) Finch v. Newnham, 2 Vern. 216. (n) Fray v. Drew, 11 Jur. N. S. 130. (0) Catley v. Sampson, 33 Beav. 551. (p) Amhurst v. Litton, 5 Bro. P. C. 254. (a) Re Harrowby and Paine, W. N. (1902) 137. the representative of such executor or administrator, though he Chap. be not the representative of the deceased, and does not pass to XXXVIII. the administrator de bonis non of the deceased (r). § 1 (i). Legatees whose legacies are charged on the mortgaged land Legatees may apparently redeem (s); but it seems that they can only sue through their trustee or executor, unless he refuses to do so (t). life. Where property subject to a mortgage is settled to uses, the Tenant for tenant for life is entitled to redeem, and to have the legal estate conveyed to himself, but must hold the equity of redemption subject to the limitations of the settlement (u). So, also, an equitable tenant for life may redeem (x). life estate. Remainder man. The mortgagee of tenant for life may redeem a mortgage in Mortgagee of fee; but if the tenant for life die before decree, his mortgagee will have to pay costs, and his action will be dismissed (y). A tenant in tail (≈), or other remainderman or reversioner (a), may redeem. But a remainderman cannot, during the continuance of a particular estate, redeem a mortgage of the fee where the mortgagee of the fee is also mortgagee of the particular estate, except by consent of the mortgagee (b). A jointress may redeem (c). ii. Limitation of Equity of Redemption to new Uses.-A very important class of cases is next to be considered, viz., those in which the question has been, whether it is intended by the parties making the mortgage that the equity of redemption shall be limited in a manner different from the uses subsisting in the estate prior to the mortgage, or shall result to the same uses. "The only safe rule, and the only rule of any practical value, to be deduced from the authorities is this: that each case must depend on its particular circumstances, that in each case the intention must be collected from the instrument which has given rise to the question, and that that instrument must be interpreted according to the ordinary rules of interpretation " (d). (r) Butler v. Bernard, Freem. Ch. 139; Skeffington v. Whitehurst, 9 Cl. & F. 219. And see Greenwood v. Rothwell, 7 Beav. 279. (s) Batchelor v. Middleton, 6 Hare, 75, 78. (t) See Troughton v. Binks, 6 Ves. 573. (u) Lewis v. Nangle, Amb. 150; 1 Cox, 240; Earl of Kinnoul v. Money, 3 Swanst. 202, n., at p. 219, n.; Wicks v. Scrivens, 1 J. & H. 215; Pearce v. (x) Haymer v. Haymer, 2 Vent. 343. (b) Ravald v. Russell, Yo. 9, 21; (c) Howard v. Harris, 2 Ch. Ca. 147; 61. Jointress. Chap. As a general rule, it may be laid down that where the equity XXXVIII. of redemption is limited to persons other than the owners, the right is nevertheless in the owners (e); but the mere frame of the deed may so clearly show an intention to act upon the limitation of the equity of redemption that the Court would be bound to give effect to it (f); but a clear intention must be shown to change the ownership of the property (g) for purposes other than those of the particular mortgage (h). § 1 (ii). General presumption against change of ownership. Express limi tation of different uses. It is not necessary that the mortgage deed itself should contain an express declaration or recital of such intention (i); but where no such declaration or recital appears, the presumption is that the mortgage is for the mere purpose of raising money, and consequently against any alteration of the previous rights. The presumption, however, may be rebutted if the special circumstances of the case afford sufficient evidence of intention (k). "In cases thus depending on intention there cannot, of course, be any general rule. Each case must depend upon its own particular circumstances. The authorities seem to me to furnish us with no further guide than that the charge upon the estate, being, of course, in cases of this nature, the immediate motive of the deed, the Court will not impute the further intention to change the limitations, unless that further intention appears by recital or other special circumstances, and that the mere fact of the reservation of the equity of redemption deviating in a slight or partial degree from the original limitations of the estate, does not of itself furnish sufficient ground for imputing the further intention to change the limitations, but is rather to be ascribed to inaccuracy or mistake" " (1). In Innes v. Jackson (m) there was a distinct and subsequent clause declaring the uses; and a doubt has been expressed whether the intention to change the equitable title to the estate would ever be inferred from the mere language of the proviso (e) Hipkin v. Wilson, 3 De G. & S. 738. (f) Sug. H. L. 174. See Rowell v. Whalley, 1 Rep. in Ch. 116. (g) Lord Hastings v. Astley, 30 Beav. 260. (h) Barnett v. Wilson, 2 Y. & C. C. C. 407; Eddleston v. Collins, 3 De G. M. & G. 1; Parker v. Hills, 7 Jur. N. S. 832, H. L.; reversing 4 De G. & J. 362. (i) Innes v. Jackson, 16 Ves. 367. See Eddleston v. Collins, 3 De G. M. & G. 1, at p. 15. (k) Heather v. O'Neil, 2 De G. & J. 399, and cases there cited. (1) Per Turner, L. J., in Heather v. O'Neil, sup., at p. 414; Plomley v. Felton, inf. (m) 16 Ves. 356; commented on in Martin v. Mitchell, 2 J. & W. 423, 424; and reversed, 1 Bli. 136. See Rowel v. Walley, 1 Rep. in Ch. 116. for redemption (without aid from other parts of the instrument), Chap. in whatever terms it were framed (n). At all events, in cases XXXVIII. depending merely upon the reservation of the equity of redemp- § 1 (ii). tion, variations which can reasonably be referred to mistake or inaccuracy are not to be regarded; but if the variations be such that they cannot from their nature be referred to mistake or inaccuracy, they must, it is submitted, have their effect (o). gages with Where several mortgages were made in which the limitations Several mortof the equity of redemption varied, it was held that no inten- different tion to re-settle was shown (p); but the Vice-Chancellor's deci- limitations. sion, which was reversed, may be deemed more in accordance with other authorities (9). Where the instructions for the mortgage were to re-settle Variation the estate upon the same uses, no effect was given to an altera- contrary to tion (r). There is a distinction also between a mere mortgage and a conveyance to trustees on trusts expressly declared, in which latter case effect will be given to the altered ownership (s). instructions. under power. If a mortgage be made under a power of appointment, Mortgage whether in fee or for years, it is a revocation of the subsisting uses pro tanto (t); and therefore whether the form of the proviso for redemption be that on payment of the mortgage money the appointment shall be void, or that the estate shall be reconveyed to the old uses, or shall be conveyed to the use of the mortgagor, his heirs and assigns, the equity of redemption will in all respects, in the absence of evidence of contrary intention, correspond with the title prior to the mortgage (u). The case of Anson v. Lee (x) seems opposed to this rule, but though it has been questioned by Sir E. Sugden (y), it has been considered to be good law (z). (n) Dav. Conv. (4th ed.) vol. ii. pt. 2, pp. 41, 42. (0) Heather v. O'Neil, 2 De G. & J. 399, 416; Plomley v. Felton, 14 App. Ca. 61, 65. (p) Whitbread v. Smith, 3 De G. M. & G. 727. (q) Barnett v. Wilson, 2 Y. & C. C. C. 407; Atkinson v. Smith, 3 De G. & J. 186; Farw. Pow. 139; Sug. Pow. (8th ed.) p. 274. (r) Meadows v. Meadows, 16 Beav. 404. (8) Fitzgerald v. Fauconberg, Fitz. VOL. I.-C. 207; followed in Heather v. O'Neil, 2 (t) Thorne v. Thorne, 1 Vern. 141. (u) See Innes v. Jackson, 16 Ves. 367; Pow. Mtg., p. 346; Patch on Mtg., p. 176; Hipkin v. Wilson, 3 De G. & S. 738. See Fitzgerald v. Fauconberg, sup. (x) 4 Sim. 364. (y) Sug. Pow. (8th ed.) p. 275. (z) Whitbread v. Smith, 17 Jur. 725. Chap. The result is, that unless there be on the face of the inXXXVIII. strument, or from a comparison of the wording of different § 1 (ii). instruments of mortgage, an indication of an ulterior intention inconsistent with a future exercise of the power (a), in the case of the execution of a special power by way of mortgage, the right of redemption will remain in the persons entitled to the estate in default of appointment (6). If a mortgage is made by the exercise of a general power of appointment, the equity of redemption is apparently in the appointor (c). Where a mortgagor, having a power to appoint by will, appointed to the mortgagee by will and covenanted not to revoke the will, the mortgage did not prevent revocation, but the mortgagor was left open to an action for damages (d) although he had become bankrupt, as the contingent liability under the covenant was incapable of proof under the bankruptcy and not released by it (e). Where the donee of a general power of appointment by will, in consideration of money lent to him, covenants by deed to exercise the power by will giving the lender a first charge on the fund and does so, the fund is assets for the payment of the appointor's debts generally, and the lender has no priority over the other creditors. All that the lender gets by the deed is the personal covenant of the borrower and the right to damages for the breach of it; as regards the fund he is a mere volunteer (ƒ). Where real estate was settled upon trust for a married woman for life, and subject thereto upon trust for such persons as she should by deed or will appoint, with trusts over in default of appointment, and the tenant for life mortgaged the property, reserving the right of reconveyance to her and her heirs or assigns, or as she or they should direct, and she afterwards made a will containing a general devise to her sister and her children, it was held that the real intention was not to confer upon the mortgagor an absolute estate in fee simple, but that the equity of redemption should follow the original limitations in her favour, including her power of appointment, which it was (a) Fitzgerald v. Fauconberg, Fitz. (b) Innes v. Jackson, 16 Ves. 356. Sug. Pow., 8th ed. p. 214; Robinson v. |