1817; Feb. 6, MORTGAGE. estate for the debt of her husband, and ultra that June 23, purpose no interest was conveyed to the husband. June 5, 1818. But here there was no necessity, no object for the mortgage of 1766, except to give the husband this interest. It seems to have been a postnuptial AND WIFE. settlement proceeding on a previous arrangement; and the subsequent mortgage shows the understanding of the family that the husband had the equity of redemption. Lord Eldon, (C.) The leading question here is, Judgment. whether the husband had a title to convey; 2d, Feb. 6, 1818. whether, if he had no title, the persons claiming under him can, as against the heir at law of the wife, stand in a situation better than that in which the husband would have stood. I do not mean, at present, to call upon your Lordships for any opinion upon these points; as much of the argument was addressed to the House, in the presence of a noble Lord who, I have some reason to believe, had formed an opinion upon the case; and I am anxious that the opinion should be known, not so much with reference to the present case, as with regard to another case, that of Cooth Innes (Cooth) v. Jackson, decided by myself; a case, however, V which appears to me very different from the present case; and I ought in justice to say that, although on the best consideration I could give to the case, I thought the decision right, yet there are many important considerations to be attended to before that judgment can be either affirmed or reversed. Now what are the facts of this case? Nicholas Hare, being seized in fee simple of the premises in v. Jackson, 16 Ves. 356. MORTGAGE. AND WIFE. Feb. 6, 1818. question, in 1749 mortgaged the same by lease and release to William House for 800/. and there was a covenant to levy a fine, the uses of which were to ensure to House, his heirs and assigns, subject to the proviso for redemption, and the fine was accordingly levied. In 1762, Hare by a deed poll mortgaged the estate to House for a further sum of 4501. Under these circumstances he made his will in 1757, and devised all his lands to his wife, describing her as his dear and beloved wife, and made her his executrix as well as devisee; and, what both the printed cases have omitted to mention, she was his residuary legatee. They have also omitted to mention the rates of interest for the 800/. and the 450/., which were different from the rate of interest in the subsequent mortgage of 1766. And it will be consolation to me during my remaining life, knowing that it has been said that I have been dilatory in decision, that I have, by looking at the original instruments, saved to the right owner many a landed estate which would otherwise, probably, have been given to his adversary. Hare died in 1764, and in 1766 it appeared that his dear and beloved wife had married in the interval between these two periods. She being residuary legatee, was liable for the debts of the testator to the amount of the assets. If there was ⚫ no personal estate, than she could not be personally liable; and the real estate was the only debtor. She could be personally liable only in respect of the' personal assets or rents and profits of the real estate. And if up to the 1766 she continued liable in respect of the assets received by her, MORTGAGE. AND WIFE. Bruford, by marrying her, also became liable to Feb. 6, 1818. the amount of the assets. I would here state, that we cannot attend to a suggestion made at the bar,-HUSBAND. that there were no assets: for where it appears on the face of the instrument that he is a debtor, and acknowledges himself as such, it must be so taken, unless there is the clearest evidence to the contrary. And now see the importance of examining the original instruments. The deed of 1766 recites the mortgage for the 8007. and then the second mortgage for 450l. with interest at 41. 5s. per cent : and then it states that all interest was paid up by Bruford, but that the principal sums were due: and then the motives for executing this deed of 1766 were stated; and these were for the better securing the principal sums, "and such interest as herein "after is mentioned," and that was the increased interest of five per cent. Now if it clearly appears to have been the intention of the wife, that he should have the equity of redemption, he must have it. But still the question is, what Courts of Equity have agreed to consider as evidence of that intention manifested on the face of the instrument from which you are to draw your conclusion. I perfectly recollect what fell from the lips of Lord Thurlow, though it is a Opinion of quarter of a century ago, upon that point: that low that, alwhere the equity of redemption is, in these cases, though the equity of rereserved to the husband, if there is no other evi-demption is dence of the intention, and if the recital shows that reserved to the the instrument is framed for other purposes, the alone, he has it only husband is seized of the estate which he before had ;jure uxoris. Lord Thur husband MORTGAGE. AND WIFE. unless the in- Feb. 6, 1818. with this difference, that if he before had the legal estate, jure uxoris, he afterwards had the equity of -HUSBAND redemption, but still jure uxoris: or if the estate which he before had jure uxoris was equitable, so it remained equitable, but still jure uxoris: and that equity throws this protection round the wife, that the deed shall operate no further than its particular purpose, unless there is some recital of intention that the husband should take the benefit. But there may be complex cases, such as some of those which have been cited, very different from the case of a simple reservation of the equity of redemption to the husband, where the estate belonged to the wife. And yet it appears that, even in these complicated cases, the rule of law prevailed. In this case the debt is that of the personal assets husband. A good deal has been said about whether the debt is that of the husband, or the wife, or of both. estate, unless Now this is a case where, if there were no assets, the wife had it was not the debt of either. If there were no of her former personal assets, the debt was charged only on the real estate; and if the testator had other real estates, his covenant would have bound the other real estates; but the wife would not be the debtor. Then it will result to this. A person mortgages his estate for sums at a certain rate of interest and dies, leaving his wife, his devisee, executrix, and residuary legatee. The wife marries again, and along with her husband makes another mortgage of the premises for the same sums; the instrument reciting that the interest was paid up to that time, but that the principal sums were due; and that the purpose was for better securing the payment of the AND WIFE. principal sums and a higher rate of interest; and Feb. 6, 1818. for what? for any other purpose? no other purpose. MORTGAGE. And then it is asked what was the object of the -HUSBAND mortgage. The answer is, that it was the better securing the payment of the principal, and varying the rate of interest. You may say, that it was for the further purpose of reserving the equity of redemption to the husband. But the question comes back again to this: whether there are any special circumstances to show that the intention was to go beyond the purpose recited in the deed. Then we have to consider what was the effect of the fine, and with respect to that the same answer may be given. The fine is levied only for the same purpose for which the mortgage was made. If a fine by him alone could answer the recited purpose, the circumstance of her joining with him to levy the fine, might be evidence of her intention to waive her right. But that is not the case; for, the estate being that of the wife, whether the purpose was to vary the rate of interest or to entitle him, if a fine was necessary, the purpose could not be effected unless she joins him in the assurance on record. But Then it is said that he made this his debt. we know that it often happens that, although a man covenants for payment to a creditor, and makes it his debt as to the creditor; yet, as between him and the estate, it is not his debt, but that of the estate. Hare mortgaged the estate. You now demand your money; but I will be security to you the mortgagee, and have my demand over against the estate. |