remainder to the children of C. D. as tenants in common in tail (some of whom might yet be born), and A. B. disclaimed; it was held, that if the disclaimer vested the lapsed estate in the heir at law (who was an adult), he could not convey under the 12th section, because the estate was not vested in him by devise, and that if the effect of the disclaimer was to accelerate the legal remainders of the children, they could only pass, under the 11th section, the interest they could respectively have passed if of full age (u).

But a tenant for life under a conveyance from the trustees of the will (under the trusts of the will), is a tenant for life within the 12th section (v). So a lunatic tenant for life of estates decreed to be sold in a creditor's suit, will come within this clause, together with the 18th and 20th sections of the 1 Wm. 4, c. 60 (w). So an infant not amenable to the jurisdiction of the Court (x).

The above mentioned act of the 2 & 3 Vict. c. 60, has provided, that the surplus of the monies raised by sale or mortgage under the act of the 1 Wm. 4, c. 47, shall devolve in the same manner and belong to the same persons as the lands would have done if not so sold or mortgaged.

The provisions of the statute of the 1 Wm. 4, c. 60, were a great improvement of the law; but which still remained defective in respect of the claims of simple contract creditors on the real estates of their deceased debtors, not being traders.

To remedy this, the 3 & 4 Wm. 4, c. 104, was passed, by which all the freehold and copyhold estates of a deceased debtor are made liable to the payment of simple contract as well as specialty debts. By that statute it is enacted, "That when any person shall die seised of or entitled to any estate or interest in lands, tenements or hereditaments, corporeal or incorporeal, or other real estate, whether freehold, customaryhold or copyhold, which he shall not by his last will have charged with or devised subject to the payment of his debts, the same shall be assets to be administered in Courts of equity for the payment of the just debts of such persons, as well debts due on simple contract as on specialty; and that the heir or heirs at law, customary heir or heirs, devisee or devisees of such debtor, shall be liable to all the same suits in equity, at the suit of any of the creditors of such debtor, whether creditors by simple contract or by specialty, as the heir or heirs at law, devisee or devisees of any person or persons who died seised of freehold estates was or were, before the passing of that act, liable to in respect of such freehold estates, at the suit of creditors by specialty, in which the heirs were bound: Provided, that in the administration of assets by Courts of equity under and by virtue of that act, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demands."

(u) Heming v. Archer, 8 Beav. 294.
(v) Cheese v. Cheese, 15 L. J., Ch.

(w) In re Milfield, 2 Phill. 254.
(x) Thomas v. Gwynne, 9 Beav. 275.

H

This statute (the 3 & 4 Wm. 4, c. 104), prevails against the title of the lord by escheat (x).

The same construction will doubtless be put on this statute as was put on the former statutes of 3 & 4 Wm. & M. c. 14, and the 47 Geo. 3, c. 74, viz., that they do not charge assets descended or devised with the debts of the ancestor, but make the heir or devisee personally liable (y); and that the charge of debts under the act has not the effect of relieving a purchaser from the heir or devisee from seeing to the satisfaction of legacies charged on the estate (z). In the case of Eland v. Eland (a), there was an express charge of debts and legacies, and a mortgage was made free from incumbrances, excepting the legacies, and it was held that the amount of the legacies was applicable in satisfaction of the debts of the testator, as part of his general estate.

Notice on the part of the purchaser of the existence of debts is immaterial, unless there be fraud and want of bona fides (b).

The heir at law is not a necessary party as well as the devisee, to an administration suit under this act, where the real estate has been devised, whether the devise be to a devisee for his own benefit (c), or for the payment of debts (d).

According to the case of Carter v. Beard, before the Vice Chancellor of England, the real estate cannot be charged with the funeral expenses under this act (e); but the real estate of a lunatic, who has died before the costs of the proceedings under the commission, have been ordered to be raised under the 1 Wm. 4, c. 65, ss. 28, 30, is liable for those costs, as being necessary for the protection of his person and estate, by virtue of an implied contract (ƒ).

Judgments recovered against the deceased in his lifetime, even prior to the 1 & 2 Vict. c. 110, had priority to a charge of debts created by the will, as being liens on the estate (g), and the same applies of course to an administration of assets under this statute.

The statute does not appear intended to include terms of years, and if so an equity of redemption of a term would still remain equitable assets, distributable as formerly pari passu; but this point is doubtful, as a different construction has been put upon similar words in the 13th section of the 1 & 2 Vict. c. 110 (h).

But however that may be, at least an equity of redemption and trust in fee (not being a simple trust within the Statute of Frauds), which were equitable assets before the act, (vide supra), seem to be affected by this act, since, by the proviso at the end of the act, creditors by specialty in which the heirs are bound, have preference to other creditors.

(x) Evans v. Brown, 5 Beav. 114, on appeal; et vide Rogers v. Marsh, 1 Y. & C., N. R. 4.

(y) Spachman v. Timbrell, 8 Sim. 253; Sugd. Vend. 10th edit. 3, 123, 154; et vide 1 Wm. 4, c. 47, ss. 6, 8.

(z) Horn v. Horn, 2 S. & S. 448.
(a) Eland v. Eland, 4 M. & C. 420.
(b) Richardson v. Horton, 7 Beav.

112.

Mr. Lewin, in his work upon trusts, is of opinion that this proviso was intended to apply to copyholds only, (which were not real assets before the act), but the act does not on the face of it afford grounds for this restriction. This construction is, however, connected with his argument, that an equity of redemption in fee ought to be administered in equity by analogy to legal assets, and that the statute does not affect the mode of administering freehold interests which were real assets before the act (i).

An office of profit, granted to a man and his heirs for lives, is equitable assets, and the Court will appoint a receiver (k).

By the 9 Geo. 4, c. 33, s. 15, real estate belonging to British subjects in India are declared to be assets in the hands of executors or administrators, and who are to have full power to convey the same as the owner could have done. And consequently the heir and devisee are not in such case necessary parties to a creditor suit (1).

We have before stated, that owing to the adoption of the statute of William and Mary, plantations in the West Indies may be made equitable assets, though otherwise by the 5 Geo. 2, c. 7, s. 4, they are legal personal assets (m).

As a general proposition, a devise for payment of debts does not enhance the amount of the demand, or entitle the party to interest when he cannot have interest independently of the devise, but leaving the amount unaffected, it provides a new fund for the payment of the debts (n); and in a case of an administration suit not within the 3 & 4 Wm. 4, c. 104, where a decree for marshalling assets was made, the specialty creditors having exhausted the personalty, the Court would not raise out of the real estate, for the benefit of the simple contract creditors, the interest which would have been payable in respect of the specialty debts if they had not been satisfied out of the personal estate, although a considerable time had elapsed after the decree before the real estate could be made available for the simple contract creditors (o).

But though a devise or charge upon real estate for the payment of debts will prevent the Statute of Limitations from running as to debts not barred in the testator's lifetime (p), it will not of itself revive a debt which has become so barred (q).

The Court has no power under the 1 Wm. 4, c. 47, the 3 & 4 Wm. 4, c. 104, or the 2 & 3 Vict. c. 60, in an administration suit, in which a certain sum is decreed to be raised out of the testator's real estate for payment of debts, to add to the sum required for that purpose a further sum for repairs of the property, although without such repairs the money could not be raised, and a mortgage be much more beneficial to the infant heir or devisee than a sale (r).

(Story v. Fry, 1 Y. & C. N. R. 603. (m) Supra, p. 94.

(n) Morse v. Tucker, 5 Hare, 79; et vide infra, Bk. 2, Ch. 8; aliter, if the charge of the simple contract debts of a third person. Shirt . Westby, 16

We may lastly observe, that the real estate of a deceased debtor can be administered under the 3 & 4 Wm. 4, c. 104, not only at the suit of a creditor, but in a suit instituted by the heir, next of kin (s), or parties interested under the will (t).

Thus, although under the ancient feudal law the real estates of debtors could not by any process be taken in execution for any of the debts of their creditors, on the ground that otherwise persons might, by such circuitous mode, have been introduced into the feud without the lord's consent; and although the principle so established long. maintained its ground, and yielded at first only to the claims of judgment and afterwards of specialty creditors; yet, at length, principles more just made their way to the notice of the legislature, and opened the door wide to the claims of every species of creditors over every species of estates.

(s) Price v. Price, 15 Sim. 484.

(t) Rodney v. Rodney, 16 Sim. 307.

BOOK THE SECOND.

OF THE DIFFERENT SUBJECTS AND MODES OF MORTGAGE, AND ALSO OF THE TRANSFER OF MORTGAGE.

CHAPTER L

OF THE SUBJECTS OF MORTGAGE.

HAVING attempted to trace the progress of mortgages, from their origin at common law to their establishment with an equity of redemption, under the protection of the Courts of equity, and having also treated of judgments, statutes, and recognizances, it will next be proper to consider the subjects and modes of mortgage.

that

The consideration of the subjects of mortgage we may briefly dismiss; for it may be laid down as a general proposition, with few exceptions, every species of property, real or personal, corporeal or incorporeal, moveable or immoveable, in possession, remainder, expectancy, or even in action, is the subject of mortgage. Manors, lands and tenements, freehold, copyhold and leasehold; remainders or reversions, rents, franchises, advowsons, rectories impropriate, tithes, bills of lading, ships, freightage, articles of merchandize, bills of exchange, debts, government annuities, title deeds, and even possibilities, may, according to their several natures, be conveyed, transferred, delivered, or assigned by way of mortgage security.

The exceptions to the general rule appear to be-Pensions granted for supporting the grantee in the performance of future services, such as the pension granted by the 5 Ann. c. 4, for the more honourable support of the dignities of the Duke of Marlborough (a) and his posterity, payable out of the revenue of the Post Office; the salaries of the Judges, given for the support of the dignity of their office (b); and, in fact, the emoluments of any public office (c): (but not including a college fellowship which is not within the exception (d);) annuities

(a) Davis v. The D. of Marlborough,

1 Swanst. 74.

(b) Ibid. arguendo.

(c) Palmer v. Bate, 2 Brod. & B. 673,

and cases in notes. Hill v. Paul, 8 Cl. & Fin. 295.

(d) Feistel v. King's College, 16 L. J., Ch. 339; 10 Beav. 491.