5. Where a fubfequent purchaser or mortgagee who pro tanto is a purchafer, has notice of a former purchafe or incumbrance, he cannot avail himself of an old outstanding term prior to both, in order to get a preference; but if he has no notice of fuch prior purchase or incumbrance, and having the best right to call for the legal eftate, gets an affignment of it, equity will not deprive him of the benefit of it; for a purchaser bonâ fide, for a valuable confideration, and without notice, cannot be hurt in equity, nor have the benefit of the law taken from him; notice makes him come fraudulently. Alfo where a fecond mortgagee of an eftate, on which there is an old outstanding term, has notice of an incumbrance prior to his own, as he has not the legal estate in him, nor the best right to call for it, the whole title and confideration being in equity, the general rule must take place, viz. qui prior eft in tempore, potior eft in jure, and the prior incumbrancer may fatisfy himself of any other incumbrances on the eftate, though unknown to the puifne mortgagee when he advanced the money. 2 Vef. 685. 1756. Willoughby v. Willoughby. 6. John Barnardifton being entitled under a fettlement in 1695 to a remainder in tail expectant on the death of Sir Samuel Barnardifion, and fubject to a term of 99 years, for raifing 12,000. by indenture of 7th and 8th August 1732, granted a rent charge of 100l. a-year to plaintiff and his heirs. On the 9th of the fame month he granted a rent-charge of 100%. a-year to Gibbons, and covenanted, that the estate was free from incumbrances, except the rent charge to plaintiff. John Barnardifton afterwards coming into poffeffion of the eftate, and having fuffered a recovery to himself in fee, by indentures of leafe and release 13th and 14th March 1735, in confideration of Gibbons having extinguifhed the rent charge of 9th August 1732, granted him a new rent charge of 100/., which was afterwards affigned to Northey in 1748, and has been fince affigned to Folliffe. There was a fecond rent charge granted to the plaintiff, and two others to Gibbons by John Barnardifton, fubfequent to that in 1735, which was affigned to Northey and Sir William Jolliffe, who got an affignment of the term of 99 years by way of mortgage. Plaintiff became owner of the inheritance, and, the estate proving deficient to pay all the charges upon it, filed his bill to redeem the estate on payment of what was due for principal and intereft, on the term of 99 years. The defendants fet up the term as a protection to their feveral rent charges. The question was, whether they are affected by notice of plaintiff's rent charge, and therefore to be poftponed thereto, as to all or any of their rent charges. And the court was of opinion, that as to all the rent charges, except the rent charge of 1735, the defendants were to be preferred to the plaintiff; for as to them, the defendants are not affected with notice of the rent charge of 1732. Ambl. 311. 1756. Mertins v. Jolliffe. 7. Where 7. Where a purchaser cannot make out his title but through a deed, which leads to a fact, he will be affected with notice of that fact, and where one affected with notice, conveys to another without notice, the affignee, having the legal eftate, shall not be affected with notice to the affignor, and vice verfa. Ibid. 8. Mortgagee of a reverfion not having the title deeds, shall not be postponed to another mortgagee (whofe mortgage was made after the mortgagor came into poffeffion,) who has the title deeds, there being neither fraud nor grofs negligence. 2 Bro. Ch. Rep. 650. 1789. Tourle v. Maude and others. In Penner v. Jemmat, 28 June 1785, in notis, Lord Chancellor faid, that there must be a voluntary leaving of the deeds, to entitle the fecond mortgagee to have the prior mortgage postponed. By indenture tripartite 13 Feb. 1758, between Barrows Smith and John Applebee, of the first part; plaintiffs, the truffees, of the second part; and Edward Maude and all other the joint and feparate creditors of faid Smith and Applebee, who should fign and jeal the premifes, of the third part; reciting, among other things, that faid Smith and Applebee were indebted jointly to divers perfons on account of their trade, and to divers perfons on their separate accounts, it was witneffed, that the faid Smith and Applebee (by the direction of Maude, c.) did grant, bargain, fell, and affign to plaintiffs, all their joint and feparate goods, chattels, &c. (except as therein mentioned,) for the benefit of their creditors, and for fuch uses as therein mentioned; and also reciting inter alia, that the faid John Applebee was entitled as of bis own jeparate eftate, to a reversion in fee or fee tail, expectant on the death of his mather, of divers meffuages in the county of Kent. It was further witnessed, that the faid John Applebee did, for bimfelf, his heirs, executors, and adminiftraters, covenant with the plaintiffs to convey and affure to them and their heirs, all bis eftate and intereft therein, &c. upon truft to be fold, and the money arifing thereby to be applied upon the fame trufis ind purposes as aforefaid. And the deed contained a general covenant from Smith and Applebee for further affurances. Maude afterwards fued out a commiffion of bankruptcy against John Applebee, 23d April 1760, and be and Pacatus Shard were chofen affignees, and an affignment and bargain and fale executed to them. The affignees, 21ft Dec. 1760, filed ther bill against the plaintiffs to et afide the trust deed. On the 13th of March 1761, an order suas made that the parties should bring aɛlions to try their rights, and the plaintiffs obtained a verdi♬ in an action of trover against the affignees; and the affignees were nonfuited in an action which they brought against the plaintiffs. Mary Applebee, the mother of john, died on the 4th Feb. 1762. Plaintiffs, the truflees, filed their bill against the affignees to bave tbe eftate delivered to them: both causes came on together, 12th Nov. 1765, before Lord Northington, when a decree was made confirming the truft dead, and ordering the affignees to join in conveying all their eftate and intereft in the faid meffuages to the plaintiffs the truffees, or as they fhould appoint; bis lordship being of opinion that as the eftate was bound by a fpecific covenant for further affurance from the bankrupt, they are become entitled to that intereft, which, on the bankruptcy and the operation of lar thereon, is now vested in the faid defendants, the affignees; and the bill filed by the affignees was dijmissed with cofts. Edwards . Applebee, 1765. 2 Bro. Ch. Rep. 652. in notis. 9. The title deeds of an estate were depofited with the plaintiff as a fecurity for his demand. The defendant, 14 years afterwards, upon the eve of a bankruptcy of the mortgagor, took a mortgage, ante-dated; he had notice of the depofit, but avoided inquiring into the purpofe for which it was made. The depofit prevailed. 2 Anftr. 427. 2 Anftr. 427. Hil. 34 G. 3. Birch v. Ellames and others, 98. See Earl of Deloraine v. Browne, 3 Bro. Ch. Ca. 633. Smith v. Clay, in notis. 10. Title deeds were depofited as a fecurity for money; the defendant, a creditor of the mortgagor, fearing his immediate infolvency, took a conveyance of the fame premifes without notice of the depofit. The conveyance was held good. 2 Anfir. 433. Hil. 34 Geo. 3. Plumb v. Fluitt. 15 Vin. 448. (H) Difputes between Mortgagee and Creditors. 15 Vin. 449. I. "Th 2. One seifed in fee, subject to several equitable incumbrances, conveys the legal eftate by way of mortgage, and covenants against incumbrances, except fome of the equitable incumbrances, which were later in date to the others: held, the mortgagee having no notice of the other incumbrances was a trustee for the excepted creditors only, who had by that means got preference of the others. Ambl. 153. 1752. Ingram v. Pelham. 3. One having contracted for a copyhold eftate, devised it and a freehold eftate to his fon, fubject to an annuity to his wife: the fon confirms the annuity, and the wife releafes the freehold and copyhold; the fon is admitted to the copyhold as heir at law, and furrenders it to the mortgagee: held, the mortgagee is to be preferred to the annuitant. Ambl. 181. 1753. Wilson v. Stafford. 4. Rector entitled to an annual ftipend in lieu of tithes, to be collected by a pound rate, affigns it by way of mortgage; afterwards a creditor of the rector gets judgment, and in regular courfe a fequeftration of the ftipend: held, the mortgagee fhould be preferred to the fequeftration creditor. Ambl. 485. 1757. Errington v. Dr. Howard. I. (1) Difputes between Mortgagee and after Pur A chafors. Mortgagee, till he is fully fatisfied, is not obliged to quit the poffeffion to a purchafor. 2 Atk. 2. 1737. Davy v. Baker. 2. Owner of eight fixteenths of a fhip mortgages, he afterwards fells to different perfons, one of whom got poffeffion of the ship and the grand bill of fale, upon which the purchafor's name was, but it was not dated; held, the mortgagee should be preferred. Ambl. 652. 1767. Gillespy v. Couts. 3. Upon the purchase of an equity of redemption, the agreement of the purchafor with the vendor to pay the mortgage, without any communication with the mortgagee is not fufficient to make it the perfonal debt of the purchafor. 5 Vef. jun. 534 1800. Butler v. Butler. (K) Difputes between Tenant for Life, and Remain- 15 Vin. 450 der-man, c. of the Lands mortgaged. I. A Mortgagee (not in poffeffion) joins with the tenant for life 2. Tenant for life makes a mortgage in fee, pretending to be Burrows. 3. The course of the court with regard to tenant for life is, that he shall keep down the intereft by the rents and profits; but portions or principal money, or any other incumbrance thall be borne by the whole eftate. Lady Saville v. Sir Geo. Saville. 2 Atk. 463. 1720. 4. Sir Geo. Saville, tenant for life, had a power to cut down what timber he pleafed as part of the profits of his eftate, and as thofe in remainder could not have ftopped him, or have prayed to have their portions raifed now out of it, if it were ftanding, they cannot now have any benefit of it, now it is actually cut down and fold. Ibid. 464. 5. Father tenant for life, and fon join in raifing money received by the father; he must exonerate the fon's eftate. Ves. 522. 1750. Piers v. Piers. 6. Where tenant for life pays off an incumbrance upon the eftate, he thall be confidered as a creditor for the money fo paid; but where the tenant in tail pays, it is in exoneration of the estate of which he may make himself abfolute owner. I Bro. Ch. Rep. .206. 1783. Jones v. Morgan. See 7 Bro. P. C. 136. 7. The rule impofing upon the tenant for life a grofs fum, part of the capital of incumbrances, is at an end, but he takes fubject to all the intereft. 5 Vef. jun. 107. 1799. Lord Penrhyn v. Hughes, vide 1 Vef. jun. 234. 1790. Countess of Shrewsbury v. Earl of Shrewsbury, 4 Vef. jun. 33. 1798. White v. White, S. P. (L) Difputes between Mortgagee and Affignee of 15Vin. 452. Mortgagee. Vide Letters F. H. I, and other proper titles. S 2 15 Vin. 42. (M) Provifo. To make Intereft Principal, or to enlarge or leffen it. 15 Vin. 452. I. A. Lends money upon a mortgage at a certain rate of in tereft, and afterwards by parol agrees to reduce the rate of intereft; this agreement, though not in writing, is binding; but the fact ought to be tried by a jury upon a proper iffue. 6 Bro. P. C. 580. 1773. Lord Milton v. Edgworth and others. 2. Where a mortgage is at four per cent. and a half interest, with a provifo, that if the intereft be paid after each half year, before three quarters of a year become due, the mortgagee will accept four per cent.; if the mortgagor fails in paying the intereft at the appointed time he cannot be relieved. 3 Atk. 519. 519. 1747. Nicholls v. Maynard. 3. Where a mortgage is made with a refervation of four per cent. intereft, and a provifo, that on non-payment thereof within a certain time after it is due, the mortgagor fhall pay five, this is but a nomine pœnæ and relievable in equity. Ibid. (N) Payment or Tender. By whom. MONEY due upon a mortgage is a debt of the mortgagor, to the payment whereof his perfonal eftate is primarily liable, (the land being confidered only as a pledge,) as between his heir or devifee, and his executor; unlefs fome exprefs, or neceffarily implied declaration of his exempts his perfonal estate and throws the charge upon the real. 6 Bro. P. C. 520. 1772. Earl of Belvidere v. Rochfort. See alfo Bunb. 301. Fereyes v. Robertsou, and Walker v. Jackson, in notis, and 2 Atk. 624. 424. Ibid. Galton's. Hancock. Haflewood v. Pope, 3 P. Wms. 322, and the cafes there cited. Bridgeman v. Dove, 3 Atk. 201. Ambl. 33. Lord Inchiquin v. French, 1 Bro. Ch. Rep. 145. Samwell v. Wake, Ambl. 115. Parfons v. Freeman. Woods v. Hunting ford, 3 Vef. 128. Marchioness Dowager of Tweedale v. Earl of Coventry, 1 Bro. Ch. Rep. 240. 2. Teftator defires all his debts may be discharged by his executors; adding, "I mean thofe only of my own contracting, not thofe heavier debts of my family;" gives his perfonal estate to his mother, whom he makes executrix, defiring her to pay all his juft bebts exactly. Long after making the will the mother buys in mortgages charged on his eftate by his ancestors, and the fon covenants to pay the money. The personal estate is ftill exempted from the principal and intereft,due on those mortgages, which are ftill a charge on the real. 1 Vef. 51. 1747. Leman v. Newnham. 3. Where money is borrowed on the wife's eftate, partly to pay her debts, and partly for the hufband's ufe; he fhall not indemnify her eftate against any part of it. Otherwise, if it were borrowed |