CHAP. XXXVIII. shown to change the ownership of the property (i) for purposes other than those of the particular mortgage (k). 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 (); 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 (m). "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" (n). In Innes v. Jackson (o), 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 for redemption (without aid from other parts of the instrument) in whatever terms it were framed (p). At all events, in cases depending merely upon the reservation of the equity of redemption, 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 (9). (i) Lord Hastings v. Astley, 30 Beav. 260. (k) 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. 833, H. L.; reversing 4 De G. & J. 362. (1) Innes v. Jackson, 16 Ves. 367. See Eddleston v. Collins, 3 De G. M. & G. 1, at p. 15. (m) Heather v. O'Neil, 2 De G. & J. 399, and cases there cited. (n) Per Turner, L. J., in Heather v. O'Neil, sup., at p. 414. (0) 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. (p) 2 Dav. Conv., 4th ed. vol. ii. pt. 2, pp. 41, 42. (q) Heather v. O'Neil, 2 De G. & J. 399, 416. Where several mortgages were made in which the limitations CHAP. XXXVIII. of the equity of redemption varied, it was held that no inten- Several morttion to re-settle was shown (r); but the Vice-Chancellor's deci- gages with sion, which was reversed, may be deemed more in accordance limitations. with other authorities (s). different contrary to instructions. Where the instructions for the mortgage were to re-settle Variation the estate upon the same uses, no effect was given to an alteration (t). under power. 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 (u). 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 (x); 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 (y). The case of Anson v. Lee (≈) seems opposed to this rule, but has been questioned by Sir E. Sugden (a). The result is, that unless there be on the face of the instrument, or from a comparison of the wording of different instruments of mortgage, an indication of an ulterior intention inconsistent with a future exercise of the power (b), 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 (c). If a mortgage is made by the exercise of a general power of appointment, the equity of redemption is apparently in the appointor (d). (r) Whitbread v. Smith, 3 De G. M. & G. 727. (s) 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; Fish. Mtg., 4th ed. p. 704. (t) Meadows v. Meadows, 16 Beav. 404. (u) Fitzgerald v. Fauconberg, Fitz. 207; followed in Heather v. O'Neil, De G. & J. 399. (x) Thorne v. Thorne, 1 Vern. 141. See Perkins v. Walker, 1 Vern. 97. (y) See Innes v. Jackson, 16 Ves. 367; (a) Sug. Pow., 8th ed. p. 275. (b) Fitzgerald v. Fauconberg, Fitz. (c) Innes v. Jackson, 16 Ves. 356. CHAP. XXXVIII. Inconsistency between proviso for re trust of sur plus sale inoneys. 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 (e) although he had become bankrupt, as the contingent liability under the covenant was incapable of proof under the bankruptcy and not released by it (ƒ). Where real estate was settled upon trust for a married woman for life, and subject thereto upon trust "for such person or persons, not being her present husband or any friend or relative of his, and for such estate or estates," as she should by deed or will appoint, with trusts over in default of appointment, and the tenant for life mortgaged the property in fee by a deed containing no recitals, but 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, in the absence of any indication of intention to the contrary by the deed itself or the circumstances of the case, it must be presumed that there had been merely an inaccuracy or mistake in the way in which the equity of redemption had been reserved, and 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 further held was not exercised by the general devise contained in her will (g). By a marriage settlement land of the husband was conveyed to such uses as the husband and wife should jointly appoint, demption and with remainders over in default of appointment. The husband and wife mortgaged the property in exercise of their power, and by the mortgage deed the reservation of the equity of redemption was to the old uses, and the trusts of the surplus sale 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). Mortgages by husband and wife. These questions have generally arisen in mortgages by husband and wife; and the principle of equity in such cases is, (e) Shep. Touchst. by Preston, 401; Sug. Pow., 8th ed. p. 214; Robinson v. Ommaney, 23 Ch. D. 285, C. A. (f) Robinson v. Ommaney, sup. (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. that if money be borrowed by the husband and wife upon the CHAP. XXXVIII. 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 (), and that the wife or her heir shall redeem, and not the heir of her husband (7). The same principle applies if the wife concur in a mortgage of her jointure lands (m), 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 an owner in fee died intestate, leaving a widow entitled to dower, who concurred with the heir-at-law for the purpose of releasing her dower in a mortgage to a building society, which provided that, on payment off of the mortgage, a statutory receipt should be indorsed on the deed to the intent that the property comprised therein be revested in the person or persons for the time being interested in the equity of redemption, 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 (n). The decision must have been different if the mortgage had been made by a husband married before the Dower Act (o), 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 (k) And see Pitt v. Pitt, T. & R. 180, ante, p. 697, note (d), a case of the wife's leasehold mortgaged by husband. (1) See Huntington v. Huntington, 2 Vern. 437; Corbett v. Barker, 1 Anst. 138; 3 Anst. 755; Ruscombe v. Hare, 6 Dow, 1. (m) Cotton v. Cotton, 2 Rep. in Ch. 72; Brend v. Brend, 1 Vern. 213; Southcoat v. Manory, Cro. Eliz. 744. 31. (n) Meek v. Chamberlain, 8 Q. B. D. (0) 3 & 4 Will. IV. c. 105. CHAP. XXXVIII. benefit of the wife, or for the benefit of the husband, as the case may be (); 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). Effect where equity of redemption is made subject to power. 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 made payable to the husband and wife or the survivor, on proof that the wife did not consent and was not represented by a separate solicitor the deed was rectified (y). In one case (z), in which the estate of the wife was conveyed by way of mortgage in fee, and the equity of redemption was 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). (g) See Jackson v. Innes, 1 Bli. 126. (t) Atkinson v. Smith, 3 De G. & J. (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. (y) Knight v. Knight, 11 Jur. N. S. 617. (z) Martin v. Mitchell, 2 J. & W. 423. (a) 1 Sug. Pow., 8th ed. p. 311. |