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PAYMENT OF MORTGAGE MONEY-continued.

where such a general charge of debts, and one estate is in mortgage, and
the other not, contribution takes place between the devisees, 487.
form of decree where estates subject to distinct mortgages are devised to
separate persons, and the fund provided for debts failed, and there were
specialty and simple contract debts and specific legacies, 487.

where estate devised, charged with debts, in undivided shares, and one
share lapses, that share not liable, in the hands of heir or next of kin,
to more than a proportionate part of the charge, 488.

mortgagee having two estates shall not disappoint a second mortgagee
upon one of them only, 488. 490.

but as against a third incumbrancer on the other estate, if specific, the
first mortgage must be apportioned, 488, 489, 490.

residuary devisee of land liable to debts before specific legatee of person-
alty, 474, 475.

whether same applies to pecuniary legatee, 474.

whether lord taking by escheat is liable to debts jointly with specific devi-
sees, or has priority, quære, 475.

a general charge of debts and legacies on real and personal estate, will
not render estates specifically devised subject to legacies, 476.
cases of doubt whether the loan is the proper debt of the party, 476.
in case of a purchaser, mortgage on estate not his debt, 476.

covenant by him with vendor to indemnify him or to pay the debt is not
sufficient evidence of intention, 476, 477.

exception in a case in which the purchaser had originally become liable
to mortgagee, 478.

under a covenant with mortgagor to indemnify or pay the debt, purcha-
ser not liable to action at law by mortgagee, 476.

trust or charge by purchaser for payment of debts will not comprise it,
476.

distinction if money be borrowed to complete the purchase, 476,

and further distinction taken between a purchaser of the equity of re-
demption and a contract for the whole estate discounting the mortgage
debt, quære, 477.

cases in which there is a new agreement between the purchaser and
mortgagee, 478, 479.

quære, if purchaser merely covenant with mortgagee to pay the debt,

479.

case of heir at law or devisee taking subject to mortgage, 479.

covenant on transfer or assignment will not make the debt their own,
480.

or if party entitled to an estate under a settlement becomes entitled to
a charge on the estate, and assigns that charge as a security for a sum
borrowed, 480.

or if other estates be added or loan of a further sum, 480.

or a covenant for increase of interest, 480.

exception where new equity of redemption and alteration of the rate of
interest is made on transfer of a part of the security, 480, 481.
quære, if the heir or devisee borrow a small additional sum whether it
will not form a private charge on the mortgaged estate, 480.

general charge by heir or devisee of debts on real and personal estate
will not shift the onus, 481.

nor a direct mortgage by him to pay off debts or legacies of his ances-
tor, &c., 481.

the like if he give his bond or note of hand for debts or legacies charg-

ed on the land, 481,

the case of surety, 481.

where an estate is charged under a power, and in an assignment the per-
son entitled covenants, 481.

PAYMENT OF MORTGAGE MONEY-continued.

or where a man charges his estate as a mere surety for another's debts,
481.

voluntary gift by way of charge with personal covenant, 484,

covenant by settlor for childrens' portions, widow's jointure, 484.
charge by covenant for life under power with covenant, 485.

husband and wife, case of, 485.

money raised on wife's estate for benefit of husband, wife will be a cre-
ditor, 485.

wife will have preference to legatees but not to creditors, 485.

but creditor will not, it seems be entitled to marshal as against the
wife, 485.

wife's creditors may enforce her right to be repaid, if her executors
refuse, they being made parties, 485.

parol evidence admissible to shew for whose benefit money raised, 485.
exceptions if money be raised to pay off debts of wife incurred dum sola,
&c., &c., 485.

parol evidence admissible of relinquishment of wife's claim after hus-
band's death, 486.

claim of wife not waived by her covenant to pay, 486.

husband to be indemnified if on transfer of wife's mortgaged estate he
enter into bond or covenant, 486.

if he reduce the amount of principal, his estate entitled to stand in
place of creditor, 486.

but not so as to interest, 486.

may become a purchaser if the debt by a provision for wife out of his
own estate, 486.

course to be pursued if the money raised is intended for husband's bene-
fit, 486.

time of payment may be enlarged after decree enrolled, 496.

See Appropriation. Contribution. Marshalling.

PENSIONS.

for performance of future services cannot be mortgaged, 101.

retiring pension granted by the East India Company cannot be charged,
and does not pass under insolvency, 102.

but a pension held at pleasure is in general assignable, 102.

a portion of public pensions may be reached under the insolvent acts, 102.
POLICY BROKERS,

have a general lien by usage, 282.

See Lien.

PLEADING,

as to duplicity in pleading by tenant, under-lessee of bankrupt mortgagor
and of mortgagee, in action of trespass by the tenant against the as-
signees of the bankrupt, 342.

what is a sufficient averment of time of payment in action on covenant to
pay mortgage debt, 349.

POOR,

See Lessee.

Usury.

mortgagor in possession may gain a settlement under the poor laws, 325.
but not if in possession by fraud or wrong, 325.

mortgagee in possession may gain a settlement, 345.
PORTIONS,

in what manner trusts should be declared of portions, 131.

case of term limited in remainder after death of parent, and portion made
payable at a certain time or age, without reference to the death of parent,
131, 132.

trust of term to raise portions on failure of issue male of the marriage, and
wife dies without issue male, 131, 132.

children shall not wait the death of their father, 131, 132.
evils resulting from this doctrine, 135.

PORTIONS-continued.

distinctions taken in case a particular time is appointed for raising the
portions after the commencement of the term, 135.

or maintenance being directed to be raised out of the rents and profits
after the term has fallen into possession, 135.

or in case the residue of the rents (after raising maintenance) is
directed to be paid to the persons entitled in reversion expectant
on the term, 135. 144.

general rule as laid down by Lord Eldon, 136.

several cases in which the Courts have or have not held themselves bound
by the general rule, 136-144.

the general rule laid down by Lord Eldon and by Lord Cowper now esta-
blished, 144.

portions may, it seems, be raised before the maintenance is payable, 141.
usual mode of raising portions, 145.

general rules stated regulating the vesting and payment of portions, 150.
portions when payable may in general be raised by sale or mortgage, 151.
when not, 152.

portions will not be raised before their time upon the petition of the eldest
son, 151.

if the portion be to be raised out of annual profits it will carry no interest,
152.

as to a gift over of a portion in the event of the younger child becoming an
eldest or only son, 152.

in what cases the words "rents and profits" will authorize a sale or mort-
gage, 147-150.

POSSESSIO FRATRIS,

might have been of an equity of redemption, 34.

See Half Blood.

POST OBIT SECURITIES. See Expectancies.
POWER,

powers of tenant for life not destroyed by conveyance of life estate to mort-
gagee, 562.

appointment by way of mortgage is but an exercise, pro tanto, 33. 526.
appointee not subject to judgments under old law, 54.

but otherwise now, 37, 38. 54.

a power to charge an estate with a sum includes a power to charge interest,
158.

an unlimited power to charge will authorize a disposition of the lands, 158.
a particular power of charging will not authorize a limitation of the land
to secure the money, but qu. if equity will not relieve, 158.

a power to appoint the fee will authorize a charge, 158.

as also an appointment to trustees to sell, 158.

a power to charge a sum of money held to authorize an appointment of a
rent charge, 158.

if a mortgage be made under a power, the equity will result in the old uses,
unless there be evidence of a different intention, 526.

coupled with an interest, is irrevocable, 351.

how far the rule is applicable, 351.

See Appointment. Charge. Notice. Sale.

POWER OF ATTORNEY,

authorizing a person to take possession of lands as a security amounts to a
contract to charge, 110.

in ejectment in case interest is in arrear, 109.

general power of attorney to receive payment does not authorize attorney
to receive payment by dividend warrants, 235.

should be given on an assignment of a mortgage, 304.

to sell stock which is afterwards devised, legatee is in light of a legatee of
mortgaged property, 466.

PREBEND,

how far he may alien or charge his ecclesiastical property, 206.
PRE-EMPTION,

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equitable mortgagees rank according to time, 34. 209. 410.

judgment creditor postponed to a prior equitable charge or assignment.
notwithstanding legal execution, 43. 410.

between judgment at law by creditor and a decree in equity to administer
the debtor's estate, 56.

between judgment creditor and assignees in bankruptcy or insolvency,
68-72.

between assignees in insolvency of beneficed clergyman and judgment cre-
ditor, 70. 207.

between the debts of crown and those of subjects, 81-97. 414.

between the assignees in bankruptcy of the depositor and the depositary of
title deeds in a register county, 166.

between different mortgagees in respect of the possession of the title deeds,
166. 374, 375. 416-417.

between equitable mortgagee by deposit and assignees in bankruptcy or
insolvency, 170, 171.

between equitable mortgagee by deposit and a subsequent purchaser or
mortgagee with the legal estate, 170.

a purchaser or mortgagee has a right to have a defective conveyance con-
firmed as against a judgment creditor, semble, 185-187.

so right of marshalling of two estates comprised in the first mortgage
can be enforced by a second mortgagee against a snbsequent judg-
ment creditor, 389.

between two purchasers or mortgagees, the first having a defective security,
187, 188. 190.

between different mortgagees of the equity of redemption, 209. 219.

where the legal estate is outstanding the rule qui prior est tempore potior
est jure applies, 410.

unless any one has a better right than the others to call for the legal
estate, 410.

as between cestui que trust and depositary of title deeds, 412.

equitable mortgagee preferred to prior equitable assignees, of a legacy
charged on real estate, on the ground that the equities were not equal,
the legatee having, after the first assignment, made a legal release;
but qu? 410.

a mere equitable incumbrancer takes subject to liabilities affecting his
assignor, 411, 412.

set off of maker of note in respect of subsequent transactions preferred to
equitable depositee, 411.

purchaser of estate buying in a subsequently discovered mortgage, which
included another estate, enabled to throw the whole mortgage debt upon
a mortgagee of the other estate subsequent in date to his purchase, 412.
the rule qui prior est tempore, &c. applicable where mortgagor retains the
deeds, fraudulently pretending that he has made a charge, which he
does not make until afterwards, 412.

whether the common right of a surety to stand in place of creditor avails
as against a second incumbrancer, 412.

does not avail against further advances tacked by the creditor, sem-
ble, 400. 482.

a mortgagee of a ship and cargo does not lose his priority by the tranship-
ment of the cargo, if he loses no time in giving notice to the new
consignee, though a puisne incumbrancer gives notice first, 412.
so if notice of the assignment of a debt be duly forwarded to the

PRIORITY-continued.

debtor, an intervening bankruptcy or insolvency will not deprive
the assignee of his priority, 233.

where estate is purchased free from incumbrances, and the purchaser
takes possession without paying the purchase money, it must be consi-
dered, as far as it goes, to be applied in payment of the incumbrances
according to their priorities, 413.

rule applied where puisne incumbrancer had bought up all preceding
incumbrances, and then purchased the estate for a less sum, 413.
assignment of fund in Court preferred to extent of the crown, though not
completed by notice, 414.

judgment creditor aided by Court in setting aside outstanding terms, not-
withstanding decree by subsequent incumbrancers to settle their priori-
ties, and nineteen years elapsed since last payment of annuity secured
by judgment, 414.

given by statute to the consideration for the enfranchisement of copyholds,
414.

of charges made by tenant for life under a power, 414.

by notice, not applicable to equitable interests in real estate or chattels
real, 210. 416.

may be lost by fraud, 415.

if the prior incumbrancer denies that he has any charge on being
informed of the proposed subsequent charge, 415.

if he fraudulently conceals his incumbrance, 415.

not sufficient if he is mere witness, 415.

not fraud that the assignees in insolvency permit the insolvent to keep
possession of copyholds, and do not make their entry on the Court
rolls, 415.

want of possession by the first mortgagee of the title deeds is only
prima facie evidence of fraud, 415.

second legal mortgagee not postponed to prior equitable incumbrancer
merely by the absence of the title deeds, 417.

whether subsequent incumbrancer without notice, who has contracted for
a more equitable interest, can defend himself against bill for delivery of
title deeds, 419, 420.

subsequent incumbrancer who has taken an apparent conveyance of the
mortgaged estate without notice, will not be compelled to give up the
title deeds in equity, 420.

a bona fide incumbrancer without notice may protect himself by getting in
the legal estate, 209, 210. 418.

or satisfied term, 418.

or a judgment, 418

unless affected with notice of express trust before obtaining his legal
estate, 418.

immaterial that there is no consideration, 418.

but the strict forms of inrolling and docketing must be observed,
418.

equity will not allow surreptitious release of judgment, 418.
where equity is equal the law will prevail, 209. 223. 402. 418.

a subsequent incumbrancer without notice obtains priority getting in the
legal estate, notwithstanding prior registration, 213. 379, 380. 418.
notice to the first mortgagee will not affect a third mortgagee getting the
legal estate, 210.

advisable to put notice of the second mortgage on the title deeds, 210.
first mortgagee may tack further advances on judgment or statute debts
made or obtained without notice, 210. 213. 409.

though intermediate charge be duly registered, 378.

certificate of appointment of assignees in bankruptcy must, as against pur-
chasers of lands in a register county be registered within a certain time,

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