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will vest in the person who is entitled to the first estate of inheritance, whether in tail or in fee, and upon his death will devolve upon his personal representatives

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PART IX.

Mortgages.

WE have seen, a little above, in the case of at- Mortgages in

equitable consi. tendant terms, an instance wherein chattel interests deration are not

within the clau. in land, though devisable at law by a will not exe- ses respecting cuted and attested according to the statute, are from will see more he

frauds. the particular view taken of them in courts of equity, deemed by those tribunals to be as much the objects of the requisitions of the statute as estates of inheritance. The converse of this doctrine holds in respect to mortgages ; this interest being regarded in courts of equity as entirely personal, a will unattested seems .learly to be capable of passing the beneficial right to the land; so that the devisee, under such a will of the land mortgaged, would be permitted by the court to use the name of the heir to compel payment of the money, or make the pledged estate his

' 1 Bro. C.C. 274, 3 Bro. C.C. 101.

own by foreclosure. In equitable contemplation the estate in the land remains in the mortgagor, while, in respect to the interest of the mortgagee, the land takes the character of personalty as following the nature of the debt, to which it is a collateral security; in so much that if a mortgagee, after making his will, forecloses the mortgage, or obtains a release of the equity of redemption, the mortgaged lands will not pass inclusively, under the general words lands, tenements, and hereditaments, contained in the will, but will go as an acquisition, or purchase, subsequent to the will, to the testator's heir at law

In the consideration of equity, therefore, mortgages do not seem, as to the beneficial interest, to be within the words lands and tenements, in the fifth clause of the statute; nor will such interest in general pass by a devise of lands, tenements, and hereditaments (1). But if a mortgagee by

Vide Casborne v. Scarfe, 1 Atk. 605. Sir Litton Strode v. Lady Russell, 2 Vern. 621. Winn v. Littleton, 1 Vern. 3. 2 Vent, 351. 6 P. Wms. 61. 2.

(1) 2 Vern. 621. L. being seized of several manors and lands, and also of mortgages in fee, which were forfeited, and of a great personal estate, having no issue, made his will, and after devising part to his wife for life, and other legacies, “ gave all other his lands, tenements, and hereditaments, out of settlement, to his ne. phew.” And one of the questions in the case was, whether these mortgages passed by the will under the general words, lands, tenemerts, and hereditaments? It was held by the Lord Chancellor,

his will expressly devises the mortgaged lands, or makes a general devise of his lands, having only mortgaged lands, it should seem, that the interest in the money is thereby carried to the devisee, and the right in equity to the land, as the pledge, accompanies, although the will be not attested,

It is clear that the mortgagor cannot pass his equity of redemption by a will unattested; and if the mortgagee were also under the same restriction, the statute would cut two ways, and equity would be

the Master of the Rolls, Lord Chief Justice Trevor, and Justice Tracy, that the mortgages in fee, though forfeited when the will was made, did not pass by these general words. But the decree in that case, as it is stated in the Register's book, B. 1707, fol. 510, takes no notice of any mortgages, except those whereof the testator, after making his will, had purchased the equity of redemption. The case of Winn v. Littleton, 1 Vern. 3, affords a particular ground for construing the mortgaged lands out of the general words. And according to Reg. lib. 1680, fol. 452, the decree leaves it equivocal, whether the party directed to convey was devisee or heir. Upon the whole, there seems to be no good ground for holding mortgaged lands not to pass by the general words uncontrouled in their effect by inference from the particular dispositions. The case ex parte Bowes, stated in the note to Casborne v. Scarfe, 1 Atk. 605, edit. Saund. has been denied in later cases, and the doctrine seems now settled, that the intent may restrain the generality of the expression. Vid. But. Co. Litt. 203. b. n. 96. and Duke of Leeds v. Munday, 3 Vez. jun. 348.

Where the devise is to executors, or trustees, for paying debts, the intent is promoted by construing the mortgaged lands to pass. Vid. ex parte Sergison, 4 Vez. jun. 147.

inconsistent with itself, in as much as such double operation of the statute would imply the existence of the real estate at the same moment in two persons distinctly. The truth seems to be, that the mortgagee's interest is contemplated in this court rather as a right than an estate, while the equity of rede nption has rather the quality of an estate, than a right. Thus it was said by Lord Hardwicke, that in the eye of a court of equity, the equity of redemption was the fee simple of the land, and though Sir M. Hale called it an equitable right, yet he added, that it was inherent in the land, binding all persons coming in the post, or otherwise (2).

6 1 Bl. Rep. 145.

But this equita- (2) Hard. 469. Yet there are bounds to this doctrine of transble consideration of a mortgage,

mutation of estates, in the equitable notion of a mortgage. Thus, as personal es- if it were applied to the statute of mortmain, it would be opposed to tate, is not permitted to nar- the obvious purposes of the legislature in the provisions of that law. row the effect of the statute of

It was, therefore, determined by the Master of the Rolls, (Sir mortmain. John Strange) in the Attorney-General v. Meyrick, 2 Vez. 44.

that where a mortgagee in possession devised the benefit of his mortgage to a charity, it was within the mortmain act. And his honour would not allow the distinction attempted to be made on the part of the relator, between a devise of the mortgaged premises, and of the money due on mortgage. Nor did the circumstance of the mortgagee being in possession under an habere facias possessionem, seem to weigh at all in the case, the reason of the determination being, that the devisee would acquire a right of making the pledged estate his own by foreclosure, unless the money were paid. His Honour observed, that by a.gift of all one's mortgages to A., the whole beneficial right passes to him; and be the legal estate either in the heir, or executor, each would be considered as a trustee for

PART X.

Election in Equity.

IT is to be observed, that a will of real pro- An unexecuted perty, not executed and attested as the statute di- of force to raise

a case of clection rects, is classed among those acts which the law against a per holds' to all intents and purposes void; so that nefit in the per

sonal estate by peither courts of equity or law will pay regard the same will. to the intention of the testator, unless he has given it effect in the manner dictated by the legislature. Upon this principle, such unexecuted will

A., who would be permitted by the court to use their names, to get
the money, or make the pledged estate his own by foreclosure. If
it would be so in that case, then would it be equally so, though the
devise was, in phrase, of money due on mortgage; where, unless the
Court construed it to pass the whole interest of the mortgagee, it would
be in effect a void devise. It had been rightly compared to a devise
of rents and profits, by which the land itself would pass ; that such
a construction ought to be made by the court, as would be most ef-
fectual to repel the mischief, and advance the remedy. Therefore,
if this devise tended to let in the mischief intended to be prevented,
it was the duty of the court to guard against its taking effect. He
was of opinion, that the devise came within the express words and
plain intent of the statute; the design of which was to lay a restraint
on every method, whereby land might possibly come to such hands,
unless by the manner therein prescribed; but seeing that it would not
sufficiently answer the intent of the legislature, if confined to land,

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