June 23,

1817; Feb. 6,,

by which he appointed sole executor his son and June 5, 1818. 'heir at law, the Defendant William House, who duly proved the will, and became his personal re

AND WIFE.

1794, wife

her son by her

former hus

band, her heir at law, who

Mary, the Respondent's mother, died in 1794, dies, leaving leaving him, her only child by Nicholas Hare, her Respondent, heir at law. Alexander Bruford died in 1799, having previously made a will, appointing his sons, Alexander and Francis, his executors, and devising to them the premises before-mentioned, or part of them; and that they, and Ruscombe, and House, entered on and took possession, &c. And the bill prayed an account and redemption.

files his bill for redemption.

Answer.

Ruscombe

val. con.

Ruscombe put in a plea and answer, and pleaded purchaser for that he was a purchaser for val. con. without notice; and this being over-ruled, he further answered, that he agreed with Bruford for the absolute purchase of a part of the mortgaged premises; and that in 1797, in consideration of 2,000l. paid to House, and 600l. to Bruford, House, at Bruford's request, by lease and release, released and conveyed, and Bruford granted, ratified, and confirmed, to Ruscombe and to Long, his trustee, the premises therein described to hold to Ruscombe and Long, to the use of such person, and for such purposes as Ruscombe should, by deed or will, appoint; and in default thereof to the use of Long, his heirs and assigns. during the life of Ruscombe, in trust for Ruscombe; and after the determination of that estate to the use of the right heirs of Ruscombe. The answer then stated that Ruscombe paid the money, was let into possession, and ever since held the property as his absolute estate of inheritance.

MORTGAGE.

Answers.

Answer. Bru

House answered that the mortgage money had June 23, 1817; Feb. 6, been paid, and that he claimed no interest in the June 5, 1818. estates. Long referred to the answer of Ruscombe, and stated that he was only a trustee for him. -HUSBAND Alexander and Francis Bruford submitted that, AND WIFE. by the transactions of 1766, the estates vested ab- House and solutely in Alexander Bruford the elder; and that Long. he alone, in 1789, mortgaged the premises to fords, repreHouse for a further sum of 3001. being the arrear of interest accrued, due on the said sum of 1,250l.; and that in 1797, part of the estate had been conveyed to Ruscombe, as stated in Ruscombe's answer; and that by will, dated 1798, Bruford the elder had devised the rest of the estate to them.

sentatives of

husband.

It was ordered by consent that the Respondent Dec. 19, 1810. should admit at the hearing the several deeds and will mentioned; and no witnesses were examined on either side.

that wife's heir

at law was entitled to re

Account on

The Court, on the 17th December, 1813, de- Decree, Dec. 17, 1813, clared that the Plaintiff (Respondent) was entitled to redeem; and decreed an account of what was due for principal and interest on the two mortgages deem. of 1749 and 1762, such interest to be computed the first two from the death of Alexander Bruford, and that, on mortgages. payment thereof, the Defendants, Ruscombe, Bru death of husford, &c. should reconvey the estate, free from all incumbrances, &c.

From this decree Ruscombe and A. Bruford appealed.

Interest from

band.

Mr. Martin (for Appellants). This case is dis- June 23, 1817. tinguishable from that of Jackson v. Innes. The husband was bound only to keep down the interest

June 23,

1817; Feb. 6,.

MORTGAGE.

-HUSBAND

AND WIFE.

Jackson v.

in Dom. Proc.

March 3, 6, 1815, but not

decided.

Vid. Innes v.

Jackson,

16 Ves. 356.

Cooth v. Jackson,

of the debt.

He did not represent Hare; and yet,

June 5, 1818. in 1766, he made himself liable to pay the debt, which it was not reasonable he should do without some benefit. This was not like the case of pledging the wife's estate for the husband's debt; Innes, heard but it was the case of a husband binding himself to pay the debt of a wife; and it may be presumed that the wife, in consideration of his making himself so liable, intended to transfer to him the equity of redemption. Unless this was the intention, one cannot well tell why the deed of 1766 was executed, as there were no arrears of interest, and it was not therefore likely that the mortgagee would have called for this deed. Unless then a recital of the intention to re-limit to the husband is absolutely necessary, this is as favourable a case as can well be. The ground of the decree in Jackson v. Innes was, that the intention of the parties was merely to Innes v. Jack-render the wife's estate a security; and that no benefit was intended for the husband beyond the pledge of the wife's estate for his debt. But here, unless he was to have the benefit of the equity of redemption, he made himself liable for the wife's debt for no consideration at all. (Lord Eldon, C. The deed recites that the wife was not only devisee, but executrix and residuary legatee of Hare, her former husband; and then it states that the wife and her husband, Bruford, were indebted to House, which he could not be unless he had, along with his wife, personal assets of Hare.) The only reason for making him liable, unless he was to have this benefit, would be that the estate was not sufficient security, but it was sufficient; and the presump

6 Ves. 12.

son, 16 Ves. 356.

Mortgage deed, 1766.

1817; Feb. 6,

tion is, that he was made liable, because it was June 23, intended that he should have the equity of redemp-June 5, 1818. tion.

MORTGAGE.

The decree was, at any rate, erroneous in the] -HUSBAND directions respecting the computation of interest: AND WIFE. Ruscombe had a right to say that he should be in as good a situation as House: and what would be the amount of the argument as against House? True, Bruford ought to have paid the interest up to the time of his death. But was House bound to call for the interest? It would be a good answer for House, that he was not bound to call for it from year to year; and if so it was a good answer for Ruscombe. We are therefore entitled to the whole of our interest, and not merely to interest from the time of Bruford's death-even if the House should be against us on the principal point.

Broad, 2 Ch.

Mr. Heald. In Innes (Cooth) v. Jackson it was Broad v. stated to be a rule, that where the wife's estate is Ca. 98. 161. mortgaged without a recital of any other purpose, and the equity of redemption is reserved to the husband, he shall be considered as a trustee for the wife, and her heirs. (Lord Eldon, C. I think there is some case in which it is laid down as a rule that when the wife's estate is mortgaged, and nothing is recited except the purpose of securing the repayment of the money, and the other covenants are conformable, and the equity of redemption is reserved to the husband, the Court considers him as entitled to the equity of redemption as he was before seized of the legal estate, jure uxoris. But there is some specialty in Jackson v. Innes.) In Broad v. Broad such a rule is presumed; but there

June 23,

1817; Feb. 6,

MORTGAGE.
-HUSBAND

AND WIFE.

was a positive agreement in that case, and the deJune 5, 1818.'cision would be the same whether there was such a rule or not. But, suppose that such a rule does exist, the question is, whether it does not rest on the principle mentioned by Lord Thurlow in Clinton v. Hooper, 3 Bro. Ch. Ca. 201. On referring to all the cases, he laid down this rule, that where there is a mortgage of the wife's estate by husband and wife for the husband's debt, she is a surety for her husband. That is the principle; and her estate shall be exonerated out of the husband's assets. So that on that ground it is rather probable that equity would lay down such a rule as is stated in Innes (Cooth) v. Jackson. But is that to extend to cases where the debt is that of the wife? It must be so held if this decree should be affirmed, as in this case the debt is that of the wife, not that of the husband. In Lewis v. Nangle, Amb. 150, the facts are shortly stated; but it is to be collected from that case that the rule depends on the application of the money; so that the rule is to be governed by the equities of the case. Then how would it be if she clearly meant to give the equity of redemption to her husband? (Lord Eldon, C. Lord Thurlow's notion was, that the intention must be recited.) The question is whether, if there is such a rule, it must not bend to circumstances. In Clinton v. Hooper, where the wife's estate was mortgaged, and the husband received the money; and she, having agreed during coverture, and confirmed the agreement when a widow, that her estate should continue liable; it was held that the estate was not to be exonerated out of the husband's