Fearne, C. R. 537. Fearne, C. R. 545. where there is no appearance of any Trust being intended, does not of itself raise a Resulting Trust. (1454.) In Testamentary Settlements of Real Estate, whatever remains undisposed of, whether at Law or in Equity, descends to the heir; who therefore (unless there be an immediate residuary Devisee) is entitled to the rents and profits while the particular dispositions of the Will are in suspense. (1455.) But with respect to Personal property another rule prevails; for if it be so bequeathed as not to vest in any person immediately, the produce of it in the mean time is to be accumulated for the benefit of the person ultimately entitled. (1456.) And therefore if Real and Genery Fitz- Personal property be devised promiscuously and in general terms, to vest at a future time, the mixed fund will, to satisfy the Testator's intention, acquire a uniform character in this respect, and the intermediate profits of the land will be included in the Executory Devise. (1457.) But where Real Estate is directed to Smithson, 1 Bro. be sold, and the whole or any part of the produce happens in the event to be undisposed of, the Trust for Sale will not defeat the claim of the heir-at-law: though if a Sale be necessary Wright, 16 V. J. for effecting the remaining purposes of the Will, the interest thus resulting will vest in the heir as personal estate. gerald, Jac. 468. Ackroyd v. C. C. 503. Wright v. 188. (1441.) SECT. 2.-Of Equities of Redemption, and 41. (1458.) A MORTGAGE, though forfeited (24.858.) at Law, and though the Mortgagee be in possession of the land, continues redeemable in Equity, so long as the relation of debtor and creditor appears to subsist between the parties, and for twenty years after the last acknowledgment of that Relation by the Mortgagee; unless, upon his application, the right be previously foreclosed by a Decree of the Court. And this right of Redemption constitutes an Coote Mortg. Equitable Estate, capable of alienation, and having in general all the incidents of a Trust. (1459.) There is not however any Trust, in the 2 J. & W. 182. fullest sense of the word, subsisting between Jac. 513. the Mortgagor and Mortgagee, until payment or tender of the money; except that the Mortgagee, if in possession, or in receipt of the Coote Mortg. rents, is accountable for all his surplus profits. (1460.) Such possession may be obtained at Keech v. Hall, any time after forfeiture of the Condition, by Ejectment, without any notice to quit given to * * (1460. n.) If an Advowson be the subject of Mortgage, the Mortgagee cannot, until Foreclosure, have any benefit of the right of Presentation, but is bound to present the Mortgagor's nominee. Coote Mortg. 59. 233. 190; See also 368. Doug. 21. Moss v. Gallimore, Doug. 266. Willoughby, 1 T. R. 765. Coote Mortg. 43; Bradwell . Catchpole, S Swanst. 78. n. the Mortgagor, or to any person deriving Title from him since the Mortgage; and a Lessee by prior Title is bound, upon notice, to pay (1098. 1100.) his rent to the Mortgagee. (1461.) The Mortgagee seems also to be entitled to direct Willoughby v. the conveyance or assignment, for his benefit, of any legal estate in the land, attendant on the inheritance, or otherwise held in Trust for the Mortgagor, without the concurrence of the latter. (1462.) But on the other hand, the Mortgagor in general will not be prejudiced by any act of the Mortgagee, to which he is not a party. The land, however disposed of by the Mortgagee, will still be subject to redemption; and it seems doubtful whether we can except even the extreme case of a purchase from the Mortgagee, being in possession, by a person ignorant of the Mortgage. (1463.) But it is clear that a mere Assignee of the benefit of the Mortgage Debt, with the land as a security, is bound by all previous transactions between the Mortgagor and Mortgagee; and if the debt have been reduced before the Assignment, though without his knowledge, must acquiesce. (1464.) And upon payment of the principal debt and all arrears of interest, and the costs (if any) which have been incurred in order to compel payment, or whatever else may constitute the balance of the account, the Mortgagee becomes in every respect a Trustee, and is bound to re-convey the land to the (1375.) (1459.) person who can to it. prove an Equitable Title (1468.) There seems no reason to doubt, that the benefit of future redemption constitutes an Equitable Estate in the Land from the moment of making the Mortgage, although it be not yet forfeited; for the Equity of Redemption is regarded, in Courts of Equity, as a continuation of the old ownership; the Mortgagee holding the Estate only as a pledge for the money, in the re-payment of which he is (1464. n.) He who claims the benefit of redemption must deduce his Title from the Mortgagor, and verify it at his own expense. James v. Biou, 3 Swanst. 234. (1465.) What expressions in the mortgage deed are sufficient to transfer the Equity of Redemption from the original owner of the estate to another party, particularly as between Husband and Wife, see But. Co. Litt. 208, a. n. 1; 5 Bac. Ab. 33; Jackson v. Parker, Amb. 687; Innes v. Jackson, 16 V. J. 356. If the Wife join with her Husband in a Fine in order to let in a Mortgage against her Jointure or right of Dower, she will still retain a similar interest in the Equity of Redemption. (1466.) And so if the Husband mortgage his estate, before marriage, for a Term of years only; for she is legally dowable of the Reversion, subject to the Term. But it would seem that in this last case the Husband, after marriage, may increase the Debt, though to the prejudice of his Wife; since, as we have seen, he might cause the entire interest in the Term to be assigned to a purchaser. (1467.) Where the Mortgage, made before (1437.) marriage, is in Fee, no right of Dower attaches on the (1362.1363.) Husband's Equity of Redemption; which however, if it belonged to the Wife, would, like a Trust, be subject to Curtesy. Casburne v. Inglis, 2 J. & W. 194. (267.) 208. a. n. 1. principally interested. (1469.) Hence a Mortgage in fee simple does not absolutely destroy the operation of a previous Devise of the same land; for the Equity of Redemption will still pass according to the Will*. (1470.) It may seem at first sight that the Heir or Devisee, when he becomes entitled to the Equity of Redemption, must take upon himself the Debt. But this is far from being the case universally: for, by the general rule of Law, every debt to which the deceased was personally liable is payable in the first instance out of his personal estate; nor does the addiButl. Co. Litt. tional security of a Mortgage in any degree diminish the force of the personal obligation incurred by a borrower to repay the loan, whether that obligation be evidenced (as is usual) by a Bond or Covenant, or not. (1471.) But the Purchaser of an Equity of Redemption, however obliged to indemnify the Vendor against the Debt, yet is not personally bound to the Mortgagee, with whom he has not contracted; and therefore the Heir or Devisee of such a Purchaser, though himself also not Coote Mortg. 491. (1379.) * (1469, n.) But if the heir at Law, or a stranger, take possession of the land and hold it, subject to the Mortgage, for twenty years, the devisee (not being an infant or otherwise disabled) is absolutely barred. This was the point actually decided in the case of M. of Cholmondeley v. Lord Clinton in the House of Lords; though the principle of the decision extends further. See 2 J. & W. 1. 139; 1. Turn. 107. |