Duke of Cumberland v. Codrington

3 Johns. Ch. 229, 1817 N.Y. LEXIS 220, 1817 N.Y. Misc. LEXIS 78

• Court: New York Court of Chancery
• Decided: December 31, 1817
• Status: Published

Opinion

The Chancellor-

The question in this case, between' the heir at law and the personal representatives of the Countess of Bath, is, which of them shall pay a certain mortgage debt.

Charles Williamson, in 1801, had in himself the legal title to the part then remaining unsold of what is called in the case the “ Geúesee tract,” and he held it as a trustee for Sir William Pulteney. ít had become expedient that Sir W. P. should be invested with the legal title, but Williamson refused to convey, except upon certain terms. The terms were, that Sir W. P. should pay him a large sum of money, as a remuneration of his services as agent, and should assume the payment of certain debts against Williamson, and the mortgage debt in question was one of them. This debt arose on the purchase of lands lying west of the Genesee river, from Andrew Craigie, in 1796, and the bond and mortgage Were given by Williamson to Craigie, to secure part of the purchase money. The equity of redemption which Williamson had in the mortgaged lands, was conveyed along with the other lands to Sir W. P., who had complied with the terms of settlement proposed by Williamson, by the execution of two certain indentures. Those indentures specify precisely the manner in which the mortgage debt was assumed, and we have no evidence of any other agreement.

By one of the indentures, Sir W. P. covenanted with W. to indemnify, and save him and his heirs, executors, &c. harmless from all suits and demands, by reason of the bond and mortgage. After this settlement Mr. Troup succeeded as agent for Sir" W. P. in respect to his American estates, and with competent powers to manage them, and in the lifetime of Sir W. P., the agent paid' a large arrearage of interest on the bond and mortgage, arid no objection was made to the payment.

Sir W. P. died intestate; and the first and leading point in the case is, whether Sir W., by any, or all of the' above facts and circumstances, made the mortgage debt his own, so far as to render his personal estate, in the hands • 0f his personal representative, chargeable, as the primary fund to be applied to the payment of that debt, in exoneration of the land.

As between the cTthcTrcal'and thffand if the primary fund to pay off a mortgage.

The rule appears to be, that, as between the representatives of the real and personal estates of Sir W. P.,' the Primary fund, and is to be first applied ; and the personal estate is only to be resorted to as auxiliary.

I think it can be easily shown, that this is now the settled English rule of equity upon such a state of facts.

In Shafto v. Shafto, (note 1 to 2. P. Wms. 664.) which was decided by ¡Lord Thurlow, in 1786, the devisee of ’ land subject to a mortgage executed by the testator, covenanted with the owner of the mortgage, that the estate should remain a security for the debt and interest, with an additional one per cent, of interest. The question was, tvhether the personal estate of the devisee, who had died in the mean time, should not pay the debt and interest, or, at least, the arrears of interest, with the additional one per cent. But the Lord Chancellor was clearly of opinion, that the personal estate ought not to discharge the mortgage, for the land was the primary fund, and that the interest must follow the nature of the principal, and that the contract for the additional interest was, also, in the nature of a real charge.

Lord Kenyon, as Master of the Rolls, laid down the same rule, about the same time, in'the case of Tankerville v. Fawcet. (2 Bro. 57.) He there declared, that “where an estate descends, or comes to one, subject to a mortgage, although the mortgage be afterwards assigned, and the party enters into á covenant to pay the money borrowed, yet that shall not bind his personal estate.” In that case, the devisee of land having, voluntarily, and very honourably, charged a simple contract debt of the testator upon the land devised, and died, the question was, whether his personal estate should exonerate his real, of this debt 1 It was held not to be the proper debt of the devisee, and that his per" sonal estate was not to be charged.

Both these cases contain much stronger acts of the substituted debtor than the one before me. But in Tweddell v. Tweddell, (2 Bro. 101. 152.) Lord Thurlow examined the subject more at large, discussed the point with his customary boldness and sagacity, and declared the rule of equity with a certainty and precision which have rendered his decisions a leading authority in all the subsequent cases.

In that case, A. purchased the equity of redemption, in an estate under mortgage, and agreed with the mortgagor to pay, as part of the consideration for the purchase, the mortgage debt, to the son and heir of the mortgagee, and. the residue of the consideration money to the mortgagor. He also covenanted with the mortgagor, that he would pay the mortgage debt to the heir of the mortgagee, and would indemnify the mortgagor and his representatives from the mortgage.

On a bill by the devisee of A. to have his personal estate applied in discharge of the mortgage, it was urged upon the argument, that where the real estate was, from the nature of the contract, primarily liable, it should be first applied; and that though covenants are added, yet, if they are meant as collateral securities to the land, they could not have the effect of altering the fund. The Chancellor held, in that case, that the personal estate of A. was not bound to exonerate the real; and he said it was a clear rule that the personal estate is never charged in equity, where it is not at law; that there was no principle, or case, in that court, to warrant its being chargeable in equity contrary to the order of the law; that the grounds upon which former cases had been decided, applied to that case; that the rule of marshalling assets was, that it must be a debt affecting both the real and personal estate; that in that case, the personal estate never was liable by ait action against the party, and so he thought as to the case of Rockford v. Belvedere, though the House of Lords had held the personal estate liable; that the buyer here took the land subject to the charge, but the debt, as to him, was a real, not a personal debt; that his contract with the mortgagor was only that the debt should not fall upon him, and it was a mere contract of indemnity, and he would have been bound, without any specific contract to indemnify him.

Zf one per-promise to^no*nefit’ of^thircC that third per jam an action promise,

This case is very much in point; and if the rule of equity be correctly stated, it puts an end to the present discussion. It is indeed a much stronger case than the present, for here is no stipulation with the seller to pay to the owner of the mortgage the mortgage debt, as being part of the consideration money; and here is no express covenant to pay the mortgage debt. Here is only a naked and dry covenant of indemnity. <*■*■«

i If I was to question the case of Tweddell v. Tweddell, it would not be from any presumed error in the principle, but from a doubt of its application. When the indentures between the mortgagor and purchaser recited an agreement, by which A. had agreed to pay out of the purchase money, to the son and heir of the mortgagee, the principal and interest due on the mortgage, being 2,155 pounds, and the residue of the purchase money, being 1,345 pounds, to the mortgagor, it might be a question whether the son and heir could not have sued at law for that money, as so much received for his use. It has been held, that if one person makes a promise to another, for the benefit, of a third person, that third person may maintain an action at * that promise. (Dutton and wife v. Pool, 2 Lev. 210. 1 Vent. 318. T. Jones, 103. Starkey v. Mill, Styles, 296. Martin v. Hind, Cowp. 437. Marchington v. Vernon, 1 B & Pull. 101. note. Lord Jllvanley, in 3 B. & Pull. 149, and note, ib. Schermerhorne v. Vanderheyden, 1 Johns, Rep. 140.) But the great value of this case consists in the principle it has so fully and explicitly declared. As Lord Kenyon observed in another cause, “ The use of cases is to establish principles ; and if the cases decide different from the principles, I must follow the principles, not the decisions.”

In the next decision of Lord Thurlow, which followed some time after, (Billinghurst v. Walker, 2 Bro. 604.) he pushed his doctrine to the utmost length. The Rectory .of F. was held by a lease for lives, subject to a charge of 2.200 pounds to Martha Vernon. ' It was conveyed, by the owner of the lease, to George Woodroffe, subject to the same charge, and to a charge of 900 pounds to one Pery ; and in the indenture by which it was conveyed, (and to which Martha Vernon was a party,) he covenanted to pay the charge to Martha Vernon, as well as the other charge. He discharged the debt to Pery, and, afterwards, gave a bond to Martha Vernon to pay the interest of the 2.200 pounds during her life, and the principal at his death. After repeated renewals of the lease, Gf. W. died, having devised the Rectory to two of the defendants, and appointed two others of the defendants his executors. The charge being called in and paid to a legatee of Martha Vernon, by the executors of G. W., the defendants were called on by the plaintiffs, as pecuniary legatees of G. W., who were unpaid, to have the 2,200 pounds replaced by the devisees of the Rectory, and paid over to them. But the defendants insisted that, in consequence of all these transactions, this charge had become the personal debt of Gf. W.

This was a very strong case in favour of the doctrine set up, in that instance, by the defendants. There was pot only a covenant by G. W., the purchaser of the lease, subject to the debt, to pay the debt, and a covenant in the same instrument to which the creditor, or owner of the charge was a party; but there was, afterwards, a bond given to her, altering and extending the original time of payment. This would seem to have amounted to that “ demonstration of the intention” requisite to make the debt a personal obligation. But it was held, that giving the bond was not sufficient; that it was merely a collateral security, which did not vary the nature of the charge, which continued primarily a debt upon the estate; and the defendants were, consequently, decreed to pay over the money. It was admitted that G. W. made himself personally liable to the creditor, but still it did not throw the charge on his personal estate, because there was not a demonstration of such intention. So that it seems not to be sufficient that' the stranger, who takes the estate subject to a debt, should become legally responsible to the creditor, unless that responsibility be accompanied with evidence of an intention to assume the debt, as a personal debt of his own, and detached, as it were, from the land.

The case of Mattheson v. Hardwicke, (note to 2 P. Wms. 664.) was decided about the same time with the one I have just considered, by Lord Kenyon, as Master of the Rolls. The testator there, devised an estate to A. and B. in fee, charged with the payment of debts and legacies. A. paid all the debts and legacies, except one legacy of 100 pounds, for which he gave his note to the legatee, and died. It was admitted that he had paid off the other incumbrances, with a view of easing the estate from them altogether, but the note there was held to be merely a collateral security, and that the devised estate was the primary fund for the payment of it.

The question in these latter cases seems to be, not merely whether the purchaser has rendered himself liable at law to a suit by the creditor, but which estate is to be deemed the primary fund, and which only the auxiliary, when a man gives a bond and mortgage for a debt of his own contracting, the mortgage is understood to be merely a collateral security for the personal obligation. But when a man purchases, or has devised to him, land with an incumbrance on it, he becomes a debtor only in respect to the land; and if lie promises to pay it, it is a promise rather on account of the land, which continues, notwithstanding, in many cases to be the primary fund. The same equity which in other cases makes the personal estate contribute to ease the land, as between the real and personal repre sentatives, will here make the land relieve the personal . , . , . . ... . , . estates. 1 here is good sense and justice m the principle; and I feel the force of the doctrine, that it requires very strong, and decided proof of intention, before the court can undertake to shift the natural course and order of obligallon between the two estates. We have already witliessed the tenacity with which the court adheres to the natural order or the funds, when a stranger comes in and takes the incumbered land; and the books are full of cases, on the other hand, which subject the personal estates primarily, and as “ the natural fund,” to the. payment of debts originally contracted by the party, and even though the debt should be created by mortgage, without either bond or covenant. (1 P. Wms. 291. Prec. in Ch. 7. 61. 3 P. Wms. 358. 1 Vesey, 251. 2 Atk. 430. 1 Bro. 454.)

where a man mort^geforhis mortgage*’ ¡she “Security1** But if a PFcha: land incumbered, renders himseif personally liable to the creaitor for payS for as relates í^gof ™™j-s acontra, w intent bclearly shown.

I proceed to the case of Woods v. Huntingford, (3 Vesey, 128.) in which Lord Alvanley brings the subject into discussion.

R. H. had mortgaged land to raise money for the use of his son John. The land was afterwards conveyed, subject to the mortgage, to the use of John, who joined with his father in a covenant for the payment of the money. The land was next reconveyed to R. H., who covenanted to discharge the mortgage, and afterwards borrowed- a further sum from the mortgagee, and made a new mortgage for the entire debt. The question was between the bed and personal representatives of R. H., which estate should bear the debt.

ft js to perceive a point in the case; and the Master of the Rolls was clearly of opinion, that R. H. had made the debt his own, though it was primarily the debt of his son in equity, and of himself and his son at law. He poperly adds, that if these facts were not sufficient to make the d,ebt his own, a man never could make a debt his own, without express declaration. He was very careful not to contradict, in any degree, the principle established in Tweddell v. Tweddell, which was a very governing case. In that case, there was no communication with the mortgagee, but only a covenant of indemnity, and he did not by that act take the debt upon himself personally.

In Butler v. Butler, (5 Vesey 534.) the case of Tweddell v. Tweddell is again recognized and followed by the' Master of the Rolls. This was the purchase of an equity of redemption, and an agreement with the vendor to pay the mortgage debt of 3,0002., and, also, 1,0002. to the vendor j but here, likewise, there was no communication with the" mortgagee. It was admitted, that Tweddell v. Tweddell was in point, and that the mortgage debt remained primarily chargeable upon the real estate. It was not the proper debt of Butler, the purchaser, and he could not have been personally sued by the mortgagee. Lord Mvanley collected from the decisions, that if a man purchases an estate subject to a charge, and does no more than covenant with the vendor that he shall be indemnified, it is not his debt, except in respect to the estate ; and the estate, and not his personal property, must bear it. He admitted that the" purchaser might have been liable circuitously to the vendor for his indemnity, but he said the decreee would have" been then for sale of the estate.

The case of Waring v. Ward, (5 Vesey, 670. 7 Vesey, 332.) is still more interesting,- for it gives the opinion of Lord Eldon on this much litigated question.

In that case, the testator had purchased an estate subject to a mortgage. He borrowed the sum of 80,000?. and gave a new bond and mortgage for it, and thus made a new and different contract with the mortgagee. The heir was decreed to be exonerated by the personal assets of the testator from the payment of that sum, because the real contract was only secondary, and the personal was the primary contract. Nothing can be clearer than the conclusion in this case; but Lord Eldon gave his view of the general doctrine.

He observed, that the rules on the subject were éxtremely clear, and that the principle upon which the personal estate was first liable in general cases was, that the contract was primarily a personal contract, and the land bound only in aid of the personal obligation to fulfil the personal contract That upon the transfer of a mortgage, not originally the personal debt of the party, by adding his personal contract he will not make his personal estate liable, in the first instance. That Lord Thurlrn carried the doctrine to this extent, viz. That if the purchaser of the equity of redemption covenants to pay the mortgage debt, and also to raise the interest from four to five per cent.; yet, as between the real and personal representatives of the purchaser, the additional interest was not even primarily a charge upon the personal estate, for it was incident to the charge. That, even independent of a covenant of indemnity, the purchaser of an equity of redemption is bound to indemnify the Vendor against any personal obligation, to pay a debt charged on an estate of which he had become the owner. That the case of Tweddell v. Tweddell, went upon the principle, that tire debt due to the mortgagee, was never a debt directly from that person whose personal assets were sought. That, if Lord Thurlrn was right upon the fact, the case was a clear authority that the purchase of an equity of redemption will not make the mortgage debt the debt of the purchaser. That iit his (lands it is the debt of the estate, and a mortgage in - terest, as between bis representatives. ::

In the case of The Earl of Oxford v. Lady Rodney, (14 Vesey, 417.) the testator purchased an estate subject to a mortgage, and paid the consideration remaining for the vendor beyond the mortgage, to the vendor, and then covenanted directly with the mortgagee to pay him the mortgage debt. The question arose between his heir at law and personal representatives; and Sir Win. Grant, the Master of the Rolls, took occasion to observe, that it was not very easy to reconcile Tweddell v. Tweddell with the principle established by Lord Hardwicke in Parsons v. Freeman, viz. that where the mortgage money was taken as part of the price, the charge becomes a debt from the purchaser. But he admits that Lord Thurlow’s principle was right, if the real result of the facts in that case was, that the contract of the purchaser never gave any direct and immediate right against himself to the mortgagee, and was only a contract of indemnity to the vendor against the mortgage. This case differed materially from that of Tweddell v. Tweddell, for there was a direct contract with the mortgagee, and in that case there was no dealing with the mortgagee.

Though Sir Wm. Grant declares, that Tweddell v. Tweddell is now to be looked upon as an authority to the extent to which it goes, yet he seems to intimate that an inconsistency existed between that decision, and what Lord Thurlow said in Billinghurst v. Walker, “ that if the charge was part of the price, then the personal estate was liable.” I cannot understand this observation of Lord Thurlow, nor see the importance of the criticism. The mortgage debt is always part of the price, unless there be an agreement that the vendor should take up the incumbrance. The purchaser, wherever he covenants to indemnify the vendor, takes the land cum mere ; this is the clear understanding of the parties, and the value of the incumbrance will, of course. be deducted from the real value of the land. In Tweddell v. Tweddell, the charge was part of the price, and that part of the price the purchaser was to pay to the mortgagee. This was the case, also, in Butler v. Butler, yet Lord Moanley takes no notice of that distinction. In the very case of Billinghurst v. Walker, the charge was, in one sense, part of the price, for the land was conveyed to the testator as a marriage portion for his wife, after deducting the incumbrances which the testator was to pay. All sales of equities of redemption, where there is no express agreement to the contrary, pass the estate with the incumbrance; and the purchaser will always withhold the amount of the incumbrance from what is deemed the value of the land, and he pays only the residue to the vendor. The only question in all these cases is, whether a right of action at law does not accrue to the mortgagee, when the amount of the mortgage debt is distinctly marked and separated from the price to be paid to the vendor, and by agreement between vendor and vendee, is left in the hands of the latter for the use of the mortgagee. It was held in Nelson v. Blight, (1 Johns. Cas. 205.) that where a trust was created for the benefit of a third person, though without his knowledge at the time, he may affirm the trust, and enforce its execution; and if it be to pay money, he may enforce its execution at law. This doctrine was again affirmedin Weston v. Barker; (12 Johns. Rep. 276.) and I think the same principle is to be met with in 7 Cranch, 71.

Where a trust the benefit of a thoughPwithout heS ™yW after! S'enforeTthé of iL

This series of cases, which I have thus examined, shows very conclusively, that by the English equity system, as it has been declared received for the last thirty or forty years, the purchase of the equity of redemption, in this case, by Sir W. P. with a covenant of indemnity to Williamson, the mortgagor, against the mortgage debt, did not make the debt his own, so as to render his personal assets the primary fund to pay it. (The cases alt agree that no covenant with the mortgagor is sufficient for that purpose. Tiñere must be a direct communication and contract with the mortgagee; and even that is not enough, unless the dealing with the mortgagee be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real and personal fund. The cases of Tweddell v. Tweddell, and Butler v. Butler, contained covenants with the mortgagor to. pay the incumbrance, and that was not sufficient. The cases of Shafto v. Shafto, Bullinghurst v. Walker, and Mattheson v. Hardwicke, contained a communication and contract with the mortgagee, to pay the debt, and even that was not sufficient. In Tankerville v. Fawcet, the devisee voluntarily assumed a simple contract debt, and charged it on his land, and that was not sufficient. It required such a special dealing as in Woods v. Huntingford, and Waring v. Ward, and Oxford v. Rodney, by which the original contract seems to have been essentially changed, and lost or merged in the new and distinct engagement with the mortgagee. It was clear from the res gestos in these latter cases, that the party taking the incumbered estate meant to take upon himself the debt, absolutely, and at all events, as a personal debt of his own. So far from being liable to difficulty, it appears that the decision in Tweddell v. Tweddell, did not go so far as other cases had done, and it is only peculiar in laying down as a test, whether there was or was not a direct personal dealing and contract with the mortgagee, by which the debt was assumed.

But we are told that no English authorities since 1775 are of binding authority, and that our courts are not to vary with the opinions, or perhaps caprice, of English tribunals. It is true, that we are not to be bound by their errors, nor do we feel subdued by their authority, but we can listen vyith instruction to their illustration and application of the principles of the science. “ Far from me and from my friends, be such frigid philosophy,” or, such unreasonable pride, as may turn us'with indifference or disdain from the decisions and the xvisdom of other nations. It is to be recollected, that we have very little domestic precedent in matters of equity to guide us. A question of this kind has, probably, never before arisen in our oxvn courts. We must resort for information to the courts of that nation from which our jurisprudence, as well as the best of our institutions, are derived ; and we can do it with uncommon advantage. Within the last forty years, the principles of law, as taught in their Courts of Equity, have been cultivated with great talent, and methodized and explained xvith great success. During that interval of time, their Courts of Equity have had a succession of learned men to preside in them, who have shed light on this portion of municipal law, and enriched it xvith their wisdom. It cannot, I presume, be seriously expected, or even wished, by the liberal counsel who argued this cause, that I should confine my researches to the more loose, inaccurate, and scanty repositories of equity learning of a date prior to our revolution, and that I should shut my eyes upon the improvements and lights of the present age. Within the period I have referred to, I may be permitted to mention, without meaning any invidious comparisons, that we have the results of the vast labours and eminent discretion of Lord Eldon, and are equally instructed by the enlightened judgment of Sir Wm. Grant, and the great diligence and accurate learning of Lord Mvanley. Within the same peroid we have, also, to borrow a portrait from Gibbon, “ the majestic sense of Thurlow, and the skilful eloquence of WedderburneLeast of all, ought a complaint to be made against the application of the existing English law to this case, for the parties litigant are British subjects, resident in England, and several of them of very distinguished rank.

It will, hoxvever, be found, upon further inquiry, that these later decisions are not introductory of any new rule or principle of equity, but are only the application of principles long antecedently known and declared. This I will now undertake to show, for I admit that the parties are entitled to have the case decided according to the existing law of this court, though that law should happen to be different from what is now understood to be the rule at Westminster Hall. •*< -

To begin with Pockley v. Pockley, (1 Vern. 36.) which came before Ch. Nottingham, in 1681. The testator, in that case, had purchased an annuity out of mortgaged lands, and taken an assignment of the mortgage to protect his purchase; and, by his will, he directed the mortgage debt, among others, to be paid out of his personal estate. The question was between the representatives of the personal and real estates; and the Chancellor directed this debt to be paid out of the testator’s personal estate, by reason of the express direction in his will. This case shows, that at that early day, the purchase of land, subject to a mortgage debt, did not make the debt personal; and that it required an express declaration, by will, to charge the personal assets with it. But I cite the case principally for the observations made by the counsel upon the argument, and which may be considered as evidence of the rule as then understood. The counsel observed, by way of illustration, that if a man purchased an equity of redemption, he must hold the land subject to the debt; but the debt never charged his person, nor did it, in any sort, become his proper debt.

So, again, in Coventry v. Coventry, (9 Mod. 12. 2 P. Wms. 222. Str. 596.) Earl Gilbert had an estate for life, with power to settle a jointure on his wife; and he covenanted to settle lands according to the power, and died before the power was executed. The plaintiffs brought a bill against the heir to have a specific execution of the power. Lord Macclesfield, with the assistance of two judges, held, that the assets of Earl Gilbert should not come in exoneration of the settled estate, for wherever assets are brought in exoneration, there the debt originally charged the personalty. The covenant remained as a real lien on the settled estate, and there could be no application of the personal estate, since there was no debt of which the personal estate was to be exonerated.”

Here the general principle pervading all the subsequent cases, was strongly and distinctly declared.

In Bagot v. Oughton, (1 P. Wms. 347.) the ancestor mortgaged his estate, and died. His daughter and heir married B., who, by fine, settled the estate on her and her husband, and he joined in an assignment of the mortgage, and covenanted to pay the money. It was held by Lord Ch. Cowper, that the personal estate of the deceased husband was not liable to be applied in ease of the mortgaged premises, for the covenant was only an additional security for the satisfaction of the lender, and was not intended to alter the nature of the debt.

That case goes as far as any of the modern cases. The husband had there become jointly seized of the estate, and he deals with the mortgagee, by his personal covenant to pay," and still the order of the funds was not affected.

The subsequent case of Evelyn v. Evelyn, (2 P. Wms. 659.) is equally strong, and it had great sanction; it adhered to such strictness, in preserving the original character of the two funds, as even to shake the resolution of Lord Thurlow.

In that case O. E. mortgaged the land for 1,500Z., and his son G. E., afterwards covenanted with the assignee of the mortgage to pay the money. He succeeded to the premises, by settlement, after the death of his father, and died intestate. The question was, whether his personal estate should be applied to pay off the mortgage executed by his father, in consequence of the covenant he made. It was held by Lord Chancellor King, assisted by the Chief Justice of the K, B., and the Master of the Rolls, that the son’s personal estate was not to be charged, for it was still the father’s debt, and the covenant of the son was to be considered only as a surety for the land, which was the original debtor.

Lord Thurlow, in Ancaster v. Mayer, (1 Bro. 454.) seemed inclined to think, that in that case, the son by his covenant had made the debt his own, and he supposed the idea of the court must have been, that the covenant was by way of accommodating the charge, and not of making the debt his own. But there are so many cases, and even some decided by Lord Thurloiv, in which a mere bond or covenant to the mortgagee will not, of itself, and without other circumstances, shift the charge, that I see no ground for surprise at this commanding decision.

In Leman v. Newnham, (1 Vesey, 57.) the same decision was given. An estate descended to a son, incumbered with a mortgage, and he covenanted with the assignee of the mortgage to pay it, and died. It was held by the Master of the Rolls, on the authority of the cases of Bagot v. Oughton, and Evelyn v. Evelyn, that the personal estate of the son was exempted, and that it was still the ancestor’s debt.

We come next in the order of time, to the case of Parsons v. Freeman, (Amb. 115. 2 P. Wms. 664. note.) which seems to have been much relied on by the counsel for the plaintiffs, though I cannot perceive that it disturbs, in any material degree, the general current of authority.

The case is very loosely and imperfectly reported, and if Lord Hardwicke is not made to speak with the precision with which he usually thought, it must be imputed to the deficiency of the case, which gives us no facts, and a very brief note of an opinion : he says, that if the ancestor has done no act to charge himself personally,- the heir at law must take the estate cum onere. So, if one purchase the equity of redemption, with usual covenants to pay off the mortgage, he knows of no determination upon such a case, but is inclined to think the heir could not come to have the estate exonerated. Then, he adds, that such was not ihe case before him, which was an agreement with the vendor for the purchase of an estate for 9QZ., of which he agreed to pay86Z. to the mortgagee, and4Z. to the, vendor; and he thinks, in that case, the words were sufficiently strong, by express contract to pay, to show an intention to make the debt his own, and the heir was entitled to the application of the personal estate.

I have already observed, that such a special agreement between the purchaser and seller of the equity of redemption, by which the mortgage debt is considered as so much money left in the hands of the purchaser for the use of the mortgagee, would seem to be sufficient ground for a suit at law by the mortgagee. If so, this case is directly within the principle of Tweddell v. Tweddell; and Lord Thurlm is said, (3 Vesey, 131.) even to have approved of that decision. But the case is certainly of no use to the present plaintiffs, as Lord Hardwicke admits, that the purchase of an equity, with covenants to pay off the mortgage, does not make the debt personal; and in the case before me, it is again to be repeated, there is nothing more than a covenant of indemnity. I have no doubt, that if we were in possession of all the facts in that case, wc should discover some special circumstances which took it out of the general rule. As it now stands, it is repugnant to most of the cases which preceded and followed it. The mere covenant with the vendor to pay the mortgage debt, does not shift the charge from the fund primarily liable. Most of the cases do not give that effect even to a covenant with the mortgagee. There must be circumstances in addition to the covenant. Lord Hardwicke himself so decided, shortly after the case of Parsons v. Freeman. Thus, in Lewis v. Nangle, (Amb. 150. 2 P. Wms. 664. note.) an estate came to the wife incumbered with a mortgage debí. The husband borrowed money, by bond and mortgage on the wife’s estate, and she joined in the mortgage, as the money was partly for the husband’s use,- and partly to discharge her debts, dmn sola. The husband gave a bond, and also covenanted to pay the whole monies secured by the mortgage. But Lord Hardwicke considered the land as still the primary fund, and he would not com-pel the husband to exonerate the land. He presumed the intention was otherwise.

Forester v. Leigh, (Amb. 171. 2 P. Wms. 664. note.) .is a strong decision of Lord Hardwicke to the same effect. The testator purchased several estates subject to mortgages, with regard to one. of which he covenanted to pay the mortgage money; and as to another estate under the mortgage, he purchased only part of it, and he and another purchaser covenanted to pay their respective shares, and indemnify each other. It was held, as between the legatees of the personal, and the devisee of the real estate, that these covenants did not make the mortgages personal ■ debts of the testator. That was not the purpose of the covenants.

But the case of the Earl of Belvedere v. Rochfort, (6 Bro. P. C. 520.) is thought to have established a rule much more favourable to the heir than that declared in many of the cases, and the counsel for the complainants seemed to place much reliance upon its application, ás well as upon its authority.

The case was this; Hughes, in 1706, mortgaged lands in Ireland to Proby, to secure a debt of 450 pounds, with interest. In 1707, II. sold his equity of redemption to Lord Rochfort for 900 pounds, and in the covenant of warranty, he excepted the mortgage, and the deed stated that the. mortgage debt and interest were to be paid and discharged by Rochfort out of the consideration of 900 pounds. On the back of the deed, there was also indorsed a receipt for the 900 pounds, in this manner, viz. “ 450 pounds on the perfection of the deed, and 450 pounds allowed on account of the mortgage.”

Lord Rochfort never paid the debt; and in 1726, he made his will, and gave a large personal estate to his wife, and he also devised the mortgaged premises to her for life, and then to his eldest son George Rochfort, in fee, subject to certain debts and legacies. He declared that his wife was to hold the land devised to her free of the mortgage debt and every incumbrance during her life, and he' directed that his son George should pay the interest of that mortgage debt out of other lands devised to him. After giving some pecuniary legacies, he bequeathed the rest of his personal estate, after payment of all his just debts, and all his real estate, to his son George, and made him sole executor.

George, the son, proved the will after his father’s death, and he kept down the interest on the mortgage debt, but never paid the principal. His mother, also, released to him her life estate in the mortgaged premises. In 1730, he made his will, and gave small annuities to his younger sons; the mortgaged premises he gave, according to such estate as he had therein, to his youngest son, William Rochfort; and he gave the principal part of his estate, real and personal to his eldest son Robert, after-wards Earl of Belvedere. The provision for the youngest son, and the other children, was very small. The estate left to the eldest son was immense.

After the death of George, the elder brother whose income, at that time, was 3,800 pounds sterling a year, refused payment of principal or interest of the mortgage debt charged on the land devised to the youngest brother; and the younger brother being under straightened circumstances, and with an increasing family, was unable to keep down the interest, and at last, in,1739, the mortgage was foreclosed, but the estate by the humane indulgence of the creditor*, was not sold under the decree, until the year 1756. The younger brother, at last, filed his bill against the executors of his father, (of which his elder brother was one,) and of his grandfather, to have the mortgage debt paid out of the personal assets, in ease of the land devised to him. The bill was originally filed in 1749, in the Court of Chancery in Ireland, and the final decree was pronounced by Lord Ch. Lifford, in 1770.

The Lord Chancellor decreed, that th,e mortgage debí was to be considered the debt of Lord Rochfort, the grandfather, at the time of his death; and that his personal estate, in the hands of his son and heir, George, and which since came to the hands of his grandson, Robert, Earl of Belvedere, was liable to the payment of that debt, in exoneration of the real estate devised to William, the plaintiff.

This decree was affirmed, on appeal, by the House of Lords.

The simple narration of this case is exceedingly calculated to enlist the feelings in favour of the decree, and every person would naturally be tempted, by the interest and pathos of the story, to press every circumstance to the greatest extent for the relief of the younger brother. But hard cases often make bad precedents, and it is certain, that this case has never since been regarded as a safe and sound authority. Lord Thurlow rejected it, though lie was one of the counsel for the respondents upon the appeal. Lord Mvanley says, there are many difficulties occurring against the judgment, and he does not rely upon it; and Lord Eldon, and Sir Wm. Grant,' take no notice of jt in their criticisms and discussions on this much agitated subject.

It is impossible to know upon what precise grounds the decree was placed by the House of Lords. The counsel for the respondents relied upon the fact contained in the deed of the purchase of the equity of redemption by Lord Rochfort, that the mortgage debt was expressly ascertained, and set apart, and left in the hands of the purchaser, to. he by him paid to the mortgagee. Lord Lifford, sems to have considered this fact as decisive evidence, that Lord Rochfort made the debt his own personal debt, and this, probably, was the ground of his decree. If it was considered that an action of law might have been brought by the mortgagee upon the affirmance of this trust, then the case would come directly within the principle of Tweddell v. Tweddell. But the counsel for the respondents urged other reasons, founded on the will of the original purchaser, as if he had there made the debt chargeable on his personal - assets. If that was the fact, then the case fell within the decisions in Pockley v. Pockley, and of numerous other cases to the same purpose. There is strong ground for this construction, as the testator gave the mortgaged premises to his wife for life, free of this incumbrance; and he directed his son and executor to pay the interest of that debt out of other lands devised to him. If he intended, or expected, that the mortgage debt was to be paid in the lifetime of his widow, (and he had no right to expect the contrary,) then the testator certainly intended it should be paid out of his personal estate, and this conclusion is the more inevitable, since he gave the residuary personal estate to his son, after the payment of all his just debts.

But the counsel for the respondents urged other grounds, also, in favour of the decree. They urged the will of George Rochfort, the son, (and father of the parties to the suit,) as decisive evidence of his intention, also, that the mortgage debt was to be paid out of the personal assets of his father or of his own. He gave specific estates to his other younger sons, and gave the rents and profits of certain lands, including the premises, for the maintenance of his younger sons, until they were 25, and he then gave the mortgaged premises, and them only, to his youngest son. He must have intended it as a beneficial devise, and which could not be the case with the incumbrance upon it, for that eventually swallowed it up.

Which of these grounds were taken by the Court in the last resort, whether it was the original agreement at the time of the purchase, or the will of the grandfather, or the will of the father, cannot be ascertained. We have not the reasons either of Lord Ch. Lifford, or of the Court of Appeals, and the cáse may perhaps be considered as turning upon the construction of a will, and its very special provisions. A case so peculiar, and so destitute of precision, cannot surely be received as an authority here, when it is no longer regarded as such by the tribunals of the country in which it was pronounced, i "x

The press airéemay throw brance upon setsforS°bydislanguage equb press direction

The result of the cases seems to be, that as to wills, 'the testator may, by express directions, charge such an incumbrance upon his personal assets, or even without express words, he may do it by dispositions and language that are tantamount; as if, for instance, the continur anee of the charge primarily on the land would be repugnantto some provisions in the will, and defeat them. As to other acts of the purchaser in his life time, in order to charge his personal estate as the primary fund, he must make himself, by contract, personally and directly liable at law for the debt to the owner of the incumbrance; and even a covenant or bond for the purpose will not be sufficient, unless accompanied with circumstances show- ■ ing a decided intention to make thereby the debt personally his own.

There is, then, no pretence, on any ground, or, indeed, from any case, to charge the personal assets of the estate of Sir W. P. with the mortgage debt. He died intestate, and the Countess of Bath succeeded to his whole estate, real and personal, as his only child.,/’

The next question is, whether the personal estate of the Countess of Bath is to be charged with this debt, or whether it must not be left as primarily chargeable upon the land which descended to her heir at law.

In my opinion, there is as little ground in this case, as in the other, to shift the charge from the real to the personal estate.

An executor tor cannot bM sets,for°a debt of^onihraTbéfnr»

The will of .the Countess of Bath does not touch the ease, and the inquiry,is, did,her acts in her lifetime create the charge,on,her personally?

I do not perceive a single act,of hers creating any responsibility from her to the , owner, of the mortgage debt.

She wished to pursue the course marked out by her father, and to make her American estates exonerate themselves, by the progressive sales, from the debts charged upon them. She seems to have acquiesced in the acts of her agent, in keeping down the interest of - the debt in question; but what is that to the point? She owned all the funds, both real and personal, and her property was liable, according to the nature of the charges, for all the debts; no inference can be drawn, one way or the other, as to the matter .before us, from her general desire to discharge all the debts upon her estates. The cases I have been reviewing, require some decided and marked act of assumption of the very debt in question, by making it a debt of primary personal obligation. The only communication from her, or act of hers, on this subject, is her letter to Mr. Troup, of the 15th. of February,. 1806. But that letter is not to the owner of the mortgage. It is directed to her agent, and contains nothing more than an anxious inquiry as. to the competency of her American funds to meet the debt. The letter, bound her to nothing; it is not so strong an act as. the covenant of indemnity entered into by her father. When Mr. Troup, afterwards made an agreement with Mrs. - Foster, as owner of the mortgage,, to pay .the same, in consideration of forbearance to prosecute, “ out of the proceeds of the Pulteney estates under his administration and agency,” he did an act for which no authority is to be found in the case. In his capacity of administrator of Sir W. P., he had no authority to bind his personal assets, for a debt not chargeable upon them before; and as general agent for the Countess of Bath, he was not authorized to bind her personally for a debt chargeable only on the land descended to her as heir. jj. wouy be dangerous to the relation of principal and agent, to infer such authority from loose general circumstances, susceptible of other constructions, Even if the personal estate of Sir W. P. had been bound for the debt, that fact would not have bound the personal estate of his daughter, after a second descent cast, because it was never her personal contract. This was so said in Cope v. Cope, (2 Salk. 449.) and" by Lord Eldon, in Waring v. Ward, (7 Vesey, 336.)

a general bmd^is prhe°ijy' fo/^debt thergiande deprincipal4” his

Upon the whole, there appears to be less colourable' ground for charging the personal estate of the Countess of B. than for charging that of her father; and my conclusion from the whole case is, that the bill must be dismissed.

The following decree was entered : “ This cause having been submitted upon a case agreed to by the parties, and upon the arguments of counsel thereon, as well on the part of the defendants, as of the complainants, and due deliberation being thereupon had, and it appearing that the complainants are not entitled to the personal estate, either of the late Sir Win. Pulteney, or of the late Countess of Bath, in the pleadings mentioned, in exoneration of the land from the mortgage debt in question : It is thereupon ordered, &c. that the complain-

ants’ bill be dismissed, and that no costs be charged by either party as against the other.”

Bill dismissed".