further held was not exercised by the general devise contained in her will (g). Chap. XXXVIII. between pro trust of sur By a marriage settlement land of the husband was conveyed § 1 (ii). to such uses as the husband and wife should jointly appoint, Inconsistency with remainders over in default of appointment. The husband viso for reand wife mortgaged the property in exercise of their power, and demption and by the mortgage deed the reservation of the equity of redemp- plus sale tion was to the old uses, and the trusts of the surplus sale moneys. moneys were for the husband, his heirs, executors, and administrators; it was held that the latter trust prevailed (h). A resulting trust is to be applied in these cases only where it appears that the taker is not intended to take beneficially (i). husband and These questions have generally arisen in mortgages by hus- Mortgages by band and wife; and the principle of equity in such cases is, wife. that if money be borrowed by the husband and wife upon the security of the wife's estate, although the equity of redemption is by the mortgage deed reserved to the husband and his heirs, or to the husband and wife and their heirs, yet there shall be a resulting trust for the benefit of the wife and her heirs (k), and that the wife or her heir shall redeem, and not the heir of her husband (). So where a wife for the purpose of enabling her husband to raise money assigned a lease to him which he mortgaged, the wife joining in the mortgage deed, which reserved the equity of redemption to him, and parol evidence proved that she only assigned the lease that he might borrow money on it, it was held that the equity of redemption resulted to her (m). The same principle applies if the wife concur in a mortgage of her jointure lands (n), in which case the general rule is, that her concurrence to let in the mortgage shall not prejudice her rights, although the equity of redemption be limited to the husband and his heirs, but she shall, on his death, be admitted to redeem. On the same principle, where a widow entitled to dower concurred with the heir-at-law for the purpose of releasing her (g) Re Byron's Settlement, Williams v. Mitchell, (1891) 3 Ch. 474. (h) Jones v. Davies, 8 Ch. D. 205. (i) Ibid., at p. 216. (k) And see Pitt v. Pitt, T. & R. 180, ante, p. 717, note (z), a case of the wife's leasehold mortgaged by husband. Vern. 437; Corbett v. Barker, 1 Anst. (m) Re Duke of Marlborough, Davis v. (n) Cotton v. Cotton, 2 Rep. in Ch. 72; Brend v. Brend, 1 Vern. 213; Southcoat v. Manory, Cro. Eliz. 744. (1) See Huntington v. Huntington, 2 Chap. XXXVIII. § 1 (ii). dower in a mortgage to a building society, it was held that the release was made only for the purposes of the security, and was at an end when the reconveyance took place so as to restore her right to dower (o). The decision must have been different if the mortgage had been made by a husband married before the Dower Act, with the concurrence of his wife, to release her dower, as in that case he would have died entitled only to an equitable estate out of which there could then be no dower (p). The general principle to be applied in deciding whether it be the estate of the wife, or the estate of the husband (if the wife join in the conveyance, either because the estate belongs to her, or because she has a charge by way of jointure out of the estate, and there is a mere reservation in the proviso for redemption, which would carry the estate from the person who was owner at the time of executing the mortgage; or where the words admit of any ambiguity), is, that there is a resulting trust for the benefit of the wife, or for the benefit of the husband, as the case may be (q); but it is not necessary, in order to bar the wife, that there should be sufficient evidence in the recitals to inform her of the alteration in the limitations (r). The old uses were held to be altered where the mortgage was made by a husband under a general power, and there was superadded a trust for sale and an express trust for himself in fee (s). And so where a modification of the equity of redemption was made in order to enable the wife to deal with it without a fine (t). Where a wife joined in a mortgage and released a rent-charge to which she was entitled, her equity of redemption was not barred because there was no express contract to bar it (u). The same result followed where the wife was ignorant of the effect of the proviso and had no intention to bar her rights (x). Similarly, where money of a married woman was lent on mortgage, and by the mortgage deed the mortgage money was (0) Meek v. Chamberlain, 8 Q. B. D. 31. (p) Dawson v. Bank of Whitehaven, (9) See Jackson v. Innes, 1 Bli. 126. (t) Atkinson v. Smith, 3 De G. & J. 186; hardly reconcilable with Whitbread v. Smith, 3 De G. M. & G. 727. See Sug. Pow., 8th ed. p. 285; Farw. Pow., p. 139. (u) Re Betton's Trust Estates, L. R. 12 Eq. 553. (x) Stansfield v. Hallam, 5 Jur. N. S. 1334; 29 L. J. Ch. 173. made payable to the husband and wife or the survivor, on proof Chap. that the wife did not consent and was not represented by a XXXVIII. separate solicitor the deed was rectified (y). redemption is made subject to power. § 1 (ii). In one case (≈), in which the estate of the wife was conveyed Effect where by way of mortgage in fee, and the equity of redemption was equity of limited to such uses as the husband and wife should jointly appoint, and in default of such joint appointment, then as the wife should by will appoint, and in default of any such appointment, to the wife in fee, the Master of the Rolls doubted if there was any alteration of the wife's estate, but this opinion is justly questioned by Sir E. Sugden (a). In a later case, where husband and wife demised the wife's lands, and covenanted to levy a fine, to confirm the mortgage term, and subject thereto to enure to the use of the husband in fee, and for no other purpose whatever, it was held that the wife's right of redemption was barred (b). The above rule applies equally to a mortgage of the wife's Chattels real. chattels real, unless a contrary intention appear from the deed (c), though slighter evidence would appear to be sufficient in this case (d). The case of Ruscombe v. Hare (e), in the House of Lords, shows strongly the force of the rule. In that case the estate devolved on the wife already charged with the mortgage, and the husband paid a considerable sum in keeping down the interest; he and his wife afterwards joined in deeds of conveyance and fine to the mortgagee, reserving the equity of redemption to the husband in fee; after his death, the heir of the wife obtained a decree for redemption against his heir, and against the representatives of a purchaser of part of the estate from him. The following conclusions may be drawn : 1. Where the mortgage is for the mere purpose of raising money, the presumption is against any alteration in the previous rights. 2. A different reservation of the equity of redemption is not enough to rebut the presumption. 3. A recital is not necessary, but is (y) Knight v. Knight, 11 Jur. N. S. 617. (2) Martin v. Mitchell, 2 J. & W. 423. (a) 1 Sug. Pow. (8th ed.) p. 311. (b) Reeve v. Hicks, 2 S. & St. 403. very advisable. (c) Clark v. Burgh, 2 Coll. 221; Pigot v. Pigot, L. R. 4 Eq. 549. (d) Watts v. Thomas, 2 P. Wms. 365. (e) 2 Bli. N. S. 122. And see Wood v. Wood, 7 Beav. 183. General result of the cases. Chap. XXXVIII. § 1 (ii). Bar of estate tail. 4. A subsequent clause declaring new uses will suffice, especially where the mortgage is of a term and the new uses are declared of the fee. 5. There must be sufficient evidence of intention to alter the previous rights, which will depend upon the circumstances of each case. 6. It will require stronger evidence to alter the rights of a wife. 7. The alteration will be effectual if there is an object ulterior to the purposes of a mortgage. 8. The above principles apply to an appointment by way of security. The effect on the old uses of a disposition by a tenant in tail by way of mortgage or for any other limited purpose, is regulated by statute (f), the effect of which is that a disposition for a limited purpose, if it create only an estate pour autre vie, or a term of years absolute or determinable, or a charge without any estate to secure it, is only a bar of the entail pro tanto, although an intention is expressed or implied that it should operate as a total bar; to give effect to such an intention, the deed must contain a further valid disposition to the extent intended; whilst, on the other hand, a disposition creating an actual estate greater than an estate pour autre vie will operate as a total bar of the estate tail to the extent of the estate created, although it be only as a security, and the deed declare that it is intended to be a bar pro tanto merely. To give effect to that intention the estate tail must be re-limited subject to the interest created. In either case the further limitations may be created by the same deed; for, although the statute denies effect to a mere intention, whether implied or expressed, yet it does not of course prohibit the express limitation of the old or any other uses which the tenant in tail may choose to introduce. The clause is skilfully yet singularly framed; but it expressly denies, in the general case provided for, effect to an express declaration confining the operation of the deed to the incumbrance created, whilst it equally denies, in the excepted cases, effect to an express declaration extending the operation of the charge beyond its immediate purpose; the object was to put an end to such questions as arose in Jackson v. Innes (g). (f) 3 & 4 Will. IV. c. 74, s. 21, ante, p. 380. (g) 1 Bli. 123; Sugd. H. L. 174. See Carson, R. P. Stat., p. 283. Chap. In a case arising in New South Wales, to which colony the Fines and Recoveries Act does not extend, where a mortgage XXXVIII. recited that the mortgagor was entitled under his father's will to § 1 (ii). a life estate, with remainder to his children as tenants in tail, with cross remainders between them, and that for the purpose of increasing the mortgagee's security, a daughter and her husband had agreed to join for the purpose of barring the entail; and the deed provided that if the money should be paid, the mortgagee should reconvey the hereditaments to the mortgagors according to their respective estates and interests therein, it was held that the hereditaments must be reconveyed to the uses limited by the will, and not as altered for the purposes of the mortgage (h). redeemable iii.—When the Right of Redemption first arises.-A mortgage Mortgage not is not redeemable before the day thereby fixed for the payment before day of of the mortgage moneys, though the full amount of principal payment. and interest up to that day be offered to the mortgagee (i). This period is usually six months from the date of the deed. But the period may be shorter or longer, provided its duration is fixed and not unreasonable (). The period must be ascertainable by reference either to a fixed day, or to the happening of a certain event; if the period be uncertain, or of unreasonable duration, equity may grant relief by decreeing redemption before the determination of the period (7). The proviso for redemption is not merely a restriction on the mortgagee's right, but is a substantive agreement between the parties as to the time of payment (m). Redemption was allowed before the day of payment under a peculiar form of proviso enabling the mortgagor to redeem on a day named, or on payment before or after it (n). under Lands The Lands Clauses Act (o) provides for the payment off of Time of remortgages of lands compulsorily taken before the day limited demption for payment, with compensation for expense of re-investment, Clauses Act. and in certain cases, for loss arising through change of invest ment. (h) Plomley v. Felton, 14 App. Ca. 61. See Re Byron's Settlement, Williams v. Michell, (1891) 3 Ch. 474. (i) Brown v. Cole, 14 Sim. 427. See Burrowes v. Molloy, 2 J. & L. 521; Burrough v. Cranston, 2 Ir. Eq. R. 203. But see ante, p. 144. (k) See ante, pp. 13, 144. (1) See Newcomb v. Bonham, 1 Vern. (m) Day v. Day, 31 Beav. 270. (0) 8 Vict. c. 18, s. 114. |