incumbrances affecting them respectively (u). This rule will apply in cases where the mortgaged estates of a deceased person are primarily liable to satisfy the debt under Locke King's Act and the amending Acts, and also in cases not within those Acts, where the personalty of the deceased mortgagor is not sufficient to pay the debt in full. Chap. XL. § 3. persons. Where different estates in mortgage are devised to different Devise of general persons, each devisee, either primarily, or on a deficiency of estates to assets, takes his estate cum onere (x). But the rule is otherwise different where all the estates were by the will charged with the payment of debts. So, in Carter v. Barnardiston (y), it was held that if one seised of Whiteacre and Blackacre mortgage the former, and then by his will devise Whiteacre to A., and Blackacre to B., the devisee of the former shall compel the latter to contribute. On the like principle, if several estates are comprised in the same mortgage, and are devised to several persons, they must all contribute; so also if the estates in mortgage were freehold and copyhold respectively, and descended to different heirs (≈). several estates The principle of contribution does not apply where several Devise of estates, subject to a mortgage, are devised to the same person so to same as to entitle the person claiming one of the estates under him to person. throw the mortgage debt, or any part of it, upon the other estates which have been devised to or devolved upon different persons. The question whether he is so entitled must depend not upon any right arising under the will creating the title of the original devisee, but upon the right, if any there be, arising upon the instrument creating the title of the person claiming under the devisee (a). demand. Before a case of contribution can arise, the several estates Common must have been liable to one common demand. Thus, where A., the first mortgagee of Whiteacre, and B., the first mortgagee of Blackacre, joined in a mortgage of both estates and consented to give to the subsequent mortgagee priority over their respective charges; and the lands were subsequently sold, and the subse (u) Aldrich v. Cooper, 8 Ves. 390; Clarke v. Brereton, 1 Jo. 165; Johnson v. Child, 4 Ha. 87. (x) Halliwell v. Tanner, 1 R. & My. 633; Symons v. James, 2 Y. & C. C. Č. 301. (y) 1 P. Wms. 506. See Irvine v. Ironmonger, 2 R. & My. 531; Middle- (z) Aldrich v. Cooper, Ves. 390. (a) Stronge v. Hawkes, 4 De G. & J. 632, at p. 654. Chap. XL. § 3. Common fund. quent mortgage was paid off out of the proceeds of sale of both properties; the surplus proceeds of sale of Whiteacre were not sufficient to pay off the mortgage upon it; it was held that A. was not entitled to contribution against B., there not having been any common liability to pay a common demand (b). Moreover, the several estates must be liable equally, and not one as surety or collateral security for the other, and be a common fund (c). Thus, where under Locke King's Act (d) land is specifically charged with a debt, which is also generally charged on shares of a company by a provision of the Act of Settlement, there is no contribution, because there is no common fund (e). But a mortgage described as a collateral security is not necessarily entitled to exoneration. Collateral is not equivalent to secondary (ƒ). In a case arising under the former law before Locke King's Act, where a person possessed of several leasehold estates mortgaged one of them, and then, by his will, bequeathed them separately to different parties, and directed his debts to be paid out of his residuary personal estate, and such residuary estate proved insufficient for the purpose, it was held that the legatee of the mortgaged estate must take it cum onere, and could not call on the other legatees to contribute (g). But where several estates subject to distinct mortgages were specifically devised to different persons, and the testator directed that the mortgages should be discharged out of the personal estate, so that the devisees might hold the estates freed therefrom, and there proved to be a deficiency of personal assets for payment of debts, a decree was made that the mortgage and other specialty debts should first be paid out of the personal assets pro ratâ, that the residue of the mortgage debts should be borne by the respective estates on which they were charged, and that the deficiency of the other specialty debts, and the simple contract debts, should be borne by the several devised estates, and the specific legacies, pro ratâ (h). (b) Re Keily, 9 Ir. Ch. R. 87. (c) Marq. of Bute v. Cunynghame, 2 (d) 17 & 18 Vict. c. 113. (f) Re Athill, 16 Ch. D. 211. (g) Halliwell v. Tanner, 1 R. & My. 633; Emuss v. Smith, 2 De G. & S. 736. (h) Symons v. James, 2 Y. & C. C. C. 301. § 3. A testator devised real estate subject to a trust to raise Chap. XL. portions. His general personal estate was insufficient for payment of debts, and the real estate and specifically bequeathed personal estate had to contribute. Held, that as between the portioners and persons entitled to the real estate, the former were not bound to contribute (i). In a case where a testator devised his freehold and copyhold and leasehold estates to his seven children in equal shares, charged with payment of his debts, and bequeathed his personal estate to A., exonerated from his debts, and declared that the freeholds and copyholds should be the primary fund, and the leaseholds the secondary fund, for payment of the debts, and one of the children died in his lifetime, it was held that one-seventh share of the freeholds and other estates, after payment of the debts charged thereon, lapsed to the heir-at-law and next of kin respectively, and that the devisees of the other six shares were not entitled to have the lapsed share applied in exoneration of the devised shares (k). Where contribution is ordered between different funds, each Interest. of them ought to be placed in the same position as if it had contributed when it ought to have done so, and therefore the fund must contribute interest (1). (i) Re Saunders-Davies, 34 Ch. D. 482. (k) Fisher v. Fisher, 2 Keen, 610; the marginal note is inaccurate. (1) Ashworth v. Munn, 34 Ch. D. 391. CHAPTER XLI. OF MARSHALLING OF MORTGAGED ASSETS. Statement of i.-Nature and Effect of the Doctrine of Marshalling as applied the doctrine. Aldrich v. to Mortgages.-The general rule of equity is, that a person having two funds to which he may resort, shall not disappoint another person who can resort to one only of the funds (a). If, therefore, a creditor has a claim upon two funds, and another creditor has a claim upon one only of those funds, the Court will marshal the funds, without regard to the interests of the debtor, so as to satisfy the claim of the creditor having both funds, out of that fund which, paying him, will leave the other fund for the other creditor (b). The doctrine of marshalling applies not only in the administration of assets of a deceased person, but also in the appropriation of particular funds at any time, either during the life or after the death of a debtor, in satisfaction of claims arising under successive charges or interests to which the several funds are subject. The leading case upon the doctrine of marshalling is that of Aldrich v. Cooper (c), in which it was contended on the authority of Robinson v. Tonge (d), that specialty creditors had no right to insist that a mortgage debt, secured both on freeholds and copyholds, should be thrown on the copyholds, so as to leave the specialty creditors the freehold fund, on the ground that copyholds (the case being prior to the 3 & 4 Will. IV. c. 102) were not assets for specialty debts, and that none of the rules of equity subject any fund to a claim to which it was not before subject, but only take care that the election of one claimant shall not prejudice the claims of others. Lord Eldon justly observed (a) Aldrich v. Cooper, 8 Ves. 382, 891. And see notes to S. C. in Wh. & Tud. L. C. Eq. (7th ed.) vol. i. 36, ii. pp. 109 et seq. (b) Att.-Gen. v. Tindall, Amb. 619. (c) 8 Ves. 382. And see Gwynne v. Edwards, 2 Russ. 289, note; Greenwood v. Taylor, 1 R. & My. 187. (d) Stated in Mr. Cox's note to 1 P. Wms. 680. (i.) that it was clear the case was by no means a due application of Chap. XLI. the principle, for the copyholds, as well as the freeholds, were both subject to the mortgage debt; and as to copyholds not being assets for specialty debts, was freehold estate, he asked, assets for simple contract debts? which, at that time, it was not, either in law or equity. Upon what principle, then, did the Court say that in given cases simple contract debts should be paid out of the real estate? Not upon the ground of assets, but that a specialty creditor had a double fund to resort to. Upon the like principle, the Court, in that case, directed (if it were necessary for the payment of the creditors) that the mortgagee should take his satisfaction out of the copyhold estate, and that if he took it out of the freehold, those who were thereby disappointed should stand in his place as to the copyhold estate; thereby overruling Robinson v. Tonge. The reader will, of course, bear in mind that this reasoning has in a great measure become inapplicable since the passing of the statute above referred to. to cases of The doctrine of marshalling, in relation to mortgages, results Application in the general rule that where an owner of several properties of the doctrine has mortgaged them to the same person and afterwards deals mortgage. separately with the equity of redemption in one or more of those properties either by way of mortgage or otherwise, the person or persons interested in the equities of redemption so dealt with are entitled, as against the mortgagor, to require that the first mortgage shall be paid off in the first place out of the property not so dealt with, or, if that mortgage is paid off out of the property in which they are so interested, to stand pro tanto in the place of the first mortgagee in regard to the property which has not been resorted to for satisfying his security. first mortgagee not interfered with. In applying the doctrine of marshalling, the Court will not Rights of restrain a prior mortgagee from satisfying his debt out of available property comprised in his mortgage, which is subject to a subsequent incumbrance, merely because his security comprises other property which is not so subject; he has a right to take the money that is realised by any of his securities which comes first to hand (e). If, however, a prior mortgagee realizes several properties Right of comprised in his security he will not be allowed to satisfy his (e) Wallis v. Woodyear, 2 Jur. N. S. 179; but see Webb v. Smith, 30 Ch. D. 192, 202. signee where |