ties. (c) The rule adopted is, "He, that will have equity to help where the law cannot, shall do equity to the same party against whom he seeks to be relieved in equity."(d) The legal right, and that equity against the mortgagor, constitute the principle of tacking: want of that equity will prevent tacking. (e)

SECTION II.

OF THE TACKING OF COSTS, OR EXPENSES.

A MORTGAGEE has not universally, but generally, and except under particular circumstances, (f) an equity to claim out of the mortgaged estate payment of all his costs, or expenses, to which he has been put in consequence of the mortgage. And therefore on redemption, he is, generally speaking, entitled to be paid those costs, or expenses; (g) as,costs"in defending his mortgage at law:"(h) "expenses in law-suits to foreclose the mortgagor, and otherwise the relation to the estate:"(i) fines paid on the renewal of a church lease mortgaged:(j) money expended "in supporting the right of the mortgagor to the estate, where his title has been impeached:"(k) in some circumstances, *money paid to a bailiff, or receiver, to receive the rents of the estate:(1) [ *390 ] and, in some circumstances, money paid to a bailiff, to manage the estate.(m)

The general language of a Court of Equity is," At law, after a mortgage is forfeited, the estate is the absolute property of the mortgagee, and he may deal with it as his own; and if the mortgagor comes the redemption, which the equity of this Court gives him, it must be upon the terms of indemnifying the mortgagee from all costs arising out of his legal acts."(n)

SECTION III.

OF THE TACKING OF A BOND DEBT.

WHEN a mortgage is made by a person seised in fee, and the mortgagor is farther indebted to the mortgagee by bond, entered into before

(c) Rayson, or Rauson, v. Sacheverell, 1 Vern. 41, 2 Ch. Cas. 98; Saint John v. Holford, 1 Ch. Cas. 97; Demandray, or Demainbray, v. Metcalf, Prec. Ch. 419, 2 Vern. 691, 698; Jones v. Smith, 2 Ves. jun. 377; Wetherel v. Collins, 3 Madd. 255.

(d) 1 Ch. Cas, 97; Prec. Ch. 420; 2 Eden, 80.

(e) Bromley v. Hamond, 2 Ch. Cas. 23. (f) Mocatta v. Murgatroyd, 1 P. W. 393; Gilbert v. Golding, 2 Anstr. 442; Skipp v. Wyatt, 1 Cox, 353; Detellin v. Gale, 7 Ves. 583; Ex parte Harris, cited in Ex parte Trew, 3 Madd. 372; Barry v. Wray, 3 Russ. 465; Archdeacon v. Bowes, M'Clel. 149; Morony v. O'Dea, 1 Ball & B. 109, 121.

(g) Hunt v. Fownes, 9 Ves. 70; Ex parte Brightens, 1 Swanst. 3; Ellison v. Wright, 3 Russ. 458; Wilson v. Metcalfe, 3 Madd. 45; Wetherell v. Collins, ib. 255; Ex parte Trew, ib. 372; Loftus v. Swift, 2 Sch. & Lef. 642, 657; Webb v. Rorke, ib. 661, 676. (h) Ramsden v. Langley, 2 Vern. 536. (i) Lomax v. Hide, 2 Vern. 185. (5) Manlove v. Bale, 2 Vern. 84; Lucam v. Mertins, 1 Wils. 34.

(k) Godfrey v. Watson, 3 Atk. 518.

(1) Godfrey v. Watson, 3 Atk. 518; Davis v. Dendy, 3 Madd. 170; Carew v. Johnston, 2 Sch. & Lef. 301.

(m) Bonithon v. Hockmore, 1 Vern. 316. (n) Wetherell v. Collins, 3 Madd. 255.

or after the mortgage, (o) here, on payment of the mortgage debt only, and without the bond debt, a Court of Equity allows a redemption bythe mortgagor himself:(p) by a purchaser for a valuable consideration of the equity of redemption:(9) by a mortgagee of the equity of redemption:(r) and by the assignees of the mortgagor, become bankrupt:(s) and, after the death of the mortgagor,-by one, who, for a valuable consideration, has purchased the equity of redemption from the heir [ *391 ] at law of the mortgagor:(1) by the mortgagor's specialty creditors: (u) by "intervening incumbrancers of a superior nature between the mortgage and the bond:"(v) by creditors "claiming under a deed of trust by the mortgagor in his life-time conveying the equity of redemption:"(w) by the mortgagor's creditors, the equity of redemption being devised by him, in trust for the payment of his debts:(x) by, it seems, the mortgagor's creditors, the equity of redemption being by his will charged with the payment of his debts:(y) and by trustees, to whom the mortgagor's heir at law has conveyed the equity of redemption, "in trust for payment of all the bond and simple contract debts of his father equally."(z)

When a mortgage is made by a termor for years, and the mortgagor is farther indebted by bond to the mortgagee, here, also, on payment, of the mortgage debt only, and without the bond, a Court of Equity, after the death of the mortgagor, allows a redemption by a person to whom the executor of the mortgagor has assigned the equity of redemption.(a)

When a mortgage is made by a person seised in fee, and the mortgagor is farther indebted to the mortgagee by bond, in which his heirs are bound; without payment of the bond, as well as the mortgage, a Court of Equity does not allow a redemption by the mortgagor's heir at law; (b) or devisee of equity of redemption, if the devise is merely for the devisee's own benefit, and is therefore, as against the bond creditor, void under the statute 3 and 4 W. and M. c. 14, against fraudulent devises.(c) The principles on which the heir is not al

[ *392 ]

(0) Windham v. Jennings, 2 Ch. Rep. 247; Troughton v. Troughton, 1 Ves. 86.

(p) Monger v. Kett, 12 Mod. 559; Challis v. Casborn, Prec. Ch. 407, 1 Eq. Cas. Abr. 325; Shrapnell v. Blake, 2 Eq. Cas. Abr. 603, Ca. 34; Morret v. Paske, 2 Atk. 53; Jones v. Smith, 2 Ves. jun. 376. Formerly the mortgagor himself was not allowed to redeem, without payment of the bond as well as the mortgage; Baxter v. Manning, 1 Vern. 244; Anon. 3 Salk. 84; Gory's case, S. C., ib. 240; Peers v. Baldwyn, 2 Eq. Cas. Abr. 611. See also Halliley v. Kirtland, 2 Ch. Rep. 360.

(9) Troughton v. Troughton, 1 Ves. 87, 3 Atk. 659; Archer v. Snatt, 2 Stra. 1107; Adams v. Claxton, 6 Ves. 226, 229.

(r) Anon. 3 Salk. 84; Gory's case, S. C., ib. 240; Shrapnell v. Blake, 2 Eq. Cas. Abr. 603, 1 West Cas. T. Hardw. 166.

(s) Shrapnell v. Blake, above.

(t) Bayly v. Robson, or Robinson, Prec. Ch. 89, 1 Eq. Cas. Abr. 325, Ca. 9, n. (b.) See also Coleman v. Winch, 1 P. W. 775, Prec. Ch. 511.

(u) Lowthian v. Hassel, 3 Bro. C. C. 162; Hamerton v. Rogers, 1 Ves. jun. 513. See also Anon., or Jackson v. Langford, 2 Ves. 662, and Jones v. Smith, 2 Ves. jun. 376. (v) Powis v. Corbet, 3 Atk. 556.

(z) Anon., or Jackson v. Langford, 2 Ves. 662.

(x) Heams v. Bance, 3 Atk. 630. See also Powis v. Corbet, ib. 556.

(y) Price v. Fastnedge, Amb. 685. (z) Coleman v. Winch, or Wince, I P. W. 775, Prec. Ch. 511.

(a) Coleman v. Winch, 1 P. W. 776, Prec. Ch. 512. See also Vanderzee v. Willis, 3 Bro. C. C. 21.

(b) Windham v. Jennings, 2 Ch. Rep. 247; Anon. 2 Ch. Cas. 164; Shuttleworth v. Laycock, 1 Vern. 245; Challis v. Casborn, Prec. Ch. 407; Shrapnell v. Blake, 2 Eq. Cas. Abr. 603; Troughton v. Troughton, 1 Ves. 86, 3 Atk. 659; Powis v. Corbet, 3 Atk. 556; Heams v. Bance, ib. 630.

(c) Challis v. Casborn, Prec. Ch. 407; Heams v. Bance, 3 Atk. 630; Price v. Fastnedge, Amb. 685. See also 3 Atk. 659.

lowed to redeem, without payment of the bond, seem to be,-that the mortgaged land, so soon as redeemed by the heir, would be assets in his hands to pay the bond debt; that the creditor might sue to be paid out of this particular fund; and that therefore a circuity of action or suit is avoided, by obliging the heir to pay the bond at the time of redemption.(d) The same principles appear to apply to a devisee of the equity of redemption, if, as against creditors, the devise to him is void under the statute 3 and 4 W. and M. c. 14, against fraudulent devises, (e) or the late Act 11 Geo. IV. and 1 Will. IV. c. 47.

An heir at law has been allowed to redeem a mortgage of copyholds, without payment of a judgment, that had been assigned to the mortgagee. The reason given was, that copyhold lands are not liable to an execution upon a judgment.(ƒ)

When a mortgage is made by a termor for years, and the mortgagor is also indebted to the mortgagee by bond, without payment of the bond, as well as the mortgage, a Court of Equity does not allow a redemption by the mortgagor's executor.(g)

It remains to mention two cases, where the mortgagee was, in different rights, creditor by mortgage and bond. In Blackwell v. Symes, "a woman, bond creditor, married mortgagee, and died. The husband took out administration to his wife, and, on bill brought by him, was allowed to tack the bond to the mortgage, against the heir at law."(h) In Price v. Fastnedge, E. F., seised in fee, mortgaged to R. P. for years, to secure 10007. R. P. devised his real and personal estate to S., and made her executrix. *S. afterwards lent E. F. 5007., upon bond. E. F. by his will charged the mortgaged lands with the pay[ *393 ] ment of his debts. On a bill by S. to be paid the money due on mortgage, and on the bond, Sir T. Sewell decided that, beause the equity of redemption was by the will of E. F. charged with the payment of his debts, the bond debt could not be tacked to the mortgage.(i)

SECTION IV.

OF THE TACKING OF A SIMPLE CONTRACT DEBT.

LAND, or leaseholds for years, conveyed in mortgage, may, it is certain, be, by a written agreement, charged with the payment of a simple contract debt due by the mortgagor to the mortgagee; and then the mortgagor will not be allowed to redeem, without payment of that money, as well as the original mortgage debt.(j) But, without that agreement, a mortgagee of land has not, in the consideration of a Court of Equity,

an equity against the mortgagor, to stand on his legal title and resist redemption until payment, beyond the mortgage debt, of a simple contract debt due to him from the mortgagor; and, accordingly, the mortgagor may redeem on payment of the mortgage debt only.(k) And he is also entitled to redeem without payment of the simple contract debt, if the mortgage is of leaseholds for years. (1) Also, on a mortgage of leaseholds for years, it appears that, after the death of the mortgagor, on paying the mortgage debt only, redemption may be made by a specialty creditor;(m) by trustees, to whom the mortgagor in his life-time assigned the equity of redemption, in trust for the benefit of his creditors; (n) and by creditors, where a bill has been filed by them against the mortgagor's executor and heir at law, and a decree obtained for the [ *394 ] *creditors to come in.(0) But it seems that the executor of the mortgagor cannot redeem, without payment of the simple contract. debts due from his testator to the mortgagee. (p)

SECTION V.

OF THE EXTENSION OF THE PRINCIPLE OF TACKING, TO COMPEL, 1, a REDEMPTION OF A DIFFERENT MORTGAGE OF DIFFERENT LAND; AND 2, A REDEMPTION OF THE WHOLE OF ONE MORTGAGE.

1. Ir, by two different mortgages, A. mortgages two different estates to B.; except on the terms to pay off both mortgages, it appears a Court of Equity will not decree a redemption, either by A. himself, (q) or, if A. becomes bankrupt, by the assignees under the commission.(r) The reason is stronger, where one of the mortgages is defective. And therefore where a person is a mortgagee, by two different mortgages of different land, and one of them is a defective security, as where the debt is greater than the value of the land, (s) here, except on the terms to pay off the defective security as well as the other, the Court will not allow the latter to be redeemed by the mortgagor himself, (t) or by his heir at law, (u) or, if the mortgagor becomes bankrupt, by the assignees under the commission. (v)

If, by two different mortgages, A. mortgages two different estates to B., and, after both these mortgages, A. mortgages or sells one of the estates to C., here, on a bill to redeem, or a bill to foreclose,(w) the Court

(r) Roe v. Soley, 2 W. Bl. 726; Jones v. Smith, 2 Ves. jun. 377; Tribourg v. Lord Pomfret, Amb. ed. Blunt, 733, n. 2.

(s) 1 Vern. 29; 2 Vern. 207, 286; 2 Ves. jun. 377.

(t) Dictum of counsel in Purefoy v. Purefoy, 1 Vern. 29, cited 2 Ves. jun. 376; Jones v. Smith, 2 Ves. jun. 377.

(u) Shuttleworth v. Laycock, 1 Vern. 245 ; Margrave v. Le Hook, 2 Vern. 207.

(v) Pope v. Onslow, 2 Vern. 286, cited 2 Ves. jun. 376, and 1 Atk. 300.

(w) Tribourg v. Lord Pomfret, cited Amb.

733.

will not allow C. to redeem B., except he will pay off both mortgages;(x) and although C. purchased, or became mortgagee, without notice of the mortgage on the other estate. (y)

[ *395 ]

2. It may here farther be noticed, that, in the case of one mortgage, the mortgagee is entitled to be redeemed entire, and not by parcels. And, therefore, if A. mortgages one estate to B., and afterwards a part of it to C., C. cannot redeem that part only. (z) And a creditor by judgment cannot redeem a moiety only, but must redeem the whole or none.(a) And for this reason, if a judgment creditor redeems a mortgage, the heir at law of the mortgagor cannot redeem him, without payment of both mortgage and judgment. (b)

If A. makes one mortgage to B. of two estates, and afterwards mortgages one of them to C., and after that the other to D., C. or D. cannot redeem the estate mortgaged to himself, without also redeeming B.'s mortgage on the other estate. (c) And if C. redeems B., it appears D. cannot redeem C., without paying off both C.'s original mortgage, and the money paid by C. to redeem B. (d)

If A. makes one mortgage to B. of two estates, D. F. and E. D., and afterwards settles D. F. on G., and afterwards, on a sale of part of D. F., settles E. D.(e) on G., G. cannot redeem E. D. only. (ƒ)

*CHAPTER XXXII.

[ *396 ]

OF THE PRIORITY OF SUCCESSIVE INCUMBRANCERS OF THE SAME

LAND.

To successive incumbrancers of the same land applies the rule, Qui prior est tempore potior est jure; a rule to which, however, a Court of Equity allows many exceptions, grounded on the principle, that when one incumbrancer is armed with an equity only, and another with an equal equity and also the law, the Court will leave the parties to combat at law, and will not take from the latter incumbrancer any advantage, which the law may give him. (a)

From this principle, and the rule mentioned, depends the law of priority of successive incumbrancers of the same land.

To a mortgagee of the legal estate applies also, it will be seen, the principle of tacking.

(x) Tribourg v. Lord Pomfret, cited Amb. 733, and stated from Reg. B. Amb. ed. Blunt, 733, n.; Ex parte Carter, Amb. 733; Cator v. Charlton, and Collet v. Munden, cited 2 Ves. jun. 377; Ireson v. Denn, 2 Cox, 425. (y) Ireson v. Denn, 2 Cox, 425. (=) Titley v. Davis, 15 Vin. Abr. 447, pl. 19, 2 Eq. Cas. Abr. 604, pl. 35; Sish v. Hopkins, Amb. ed. Blunt, Append. 793.

(a) Sish v. Hopkins, above; Stileman v. Ashdown, Amb. ed. Blunt, 16, and n. 6. (b) Stileman v. Ashdown, above. VOL. VIII.—2 A

(c) Titley v. Davis, above, and cited Amb. 733; Sish v. Hopkins, above.

(d) Titley v. Davis, 15 Vin. Abr. 447, pl. 20, 2 Eq. Cas. Abr. 604, pl. 36.

(e) In the report it is West Dales, and not East Dales, that is settled. But from the context this seems to be a mistake.

(f) Willie v. Lugg, 2 Eden, 78.

(a) Hardr. 318; 2 Ventr. 338; 2 P. W. 491, 495; 2 Ves. 486; 1 Durn. & E. 767, 768.