(56)* 210 b. or if the feof "Within the realm of England." (G1) For if he be out of the realm of England he is not bound to seek him, or to go out of the realm unto him. And for that the feoffee is the cause that the fee be out of feoffor cannot tender the money, the feoffor shall enter into the land the kingdom as if he had duly tendered it according to the condition. dition be to ous; 18 E. 4.2. 19 R. 2. But if the condition of a bond or feoffment be to deliver twenty or if the conquarters of wheat, or twenty load of timber, or such like, the obli- deliver a gor or feoffor is not bound to carry the same about and seek the thing ponder. feoffee, but the obligor or feoffor before the day must go to the feoffee, and know where he will appoint to receive it, and there it must be delivered. And so note a diversity between money and things ponderous, or of great weight. If the condition of a bond or feoffment be to make a feoffment, there it is sufficient (a) for him to tender it upon the land, because the state must pass by livery. Det. 178. 207 a.) (Ante, 206 b. (Ante, 206.) or Rol. 453.) feoffinent. LITTLETON. [Sec. 342. 211 b.] But where a certain place Cust be performed there. is appointed, condition *212 a. AND, therefore, it will be a good and sure thing for him that will make such feoffment in mortgage, to appoint a special place (H1) where the money shall be paid, and the more special that it be put, the *better it is for the feoffor. As if A. infeoff B. to have to him and to his heirs, upon such condition that if A. pay to B. on the feast of St. Michael the Archangel, next coming, in the cathedral church of St. Paul's in London, within four hours next before the hour of noon of the same feast, at the rood loft of (78) the rood of the north door, within the same church, or at the tomb of St. Erkenwald, (this Erkenwald was a younger son of [COKE, Anha, king of the East Saxons, and was first abbot of Chertsey, in 212 a.] Surrey, which he had founded, and after bishop of London, a holy and devout man, and lieth buried in the south aisle, above the quire in St. Paul's church, where the tomb yet remaineth, that Littleton speaketh of in this place: he flourished about the year of our Lord 630;) or at the door of such a chapel, or at such a pillar,within the same church, that then it shall be lawful to the aforesaid A. and his heirs to enter, &c. in this case he needeth not to seek the Rol. Abr. feoffee in another place, nor to be in any other place, but in the 45, 446.) place comprised in the indenture, nor to be there longer than the time specified in the same indenture, to tender or pay the money (Cro. 13.14.) to the feoffee, &c. Here is good counsel and advice given, to set down in conveyances every thing in certainty and particularity, for certainty is the mother (78) le Rood de le, not in L. and M. nor Roh. (G1) See n. (11) post, p. 51.-[Ed.] 212 a. (H1) A tender must be strictly made, in order to stop interest on a mortgage. Bishop v. Church, 2 Ves. 372. Garforth v. Bradley, 2 Ves. 678. Shrapnell v. Blake, 2 Ab. Eq. 603. Et vid. Wiltshire v. Smith, 3 Atk. 90. And if the tender be insisted on to stop interest, the money must be kept dead from that time, because the party is to be uncore prist. Gyles v. Hall, 2 P. Wms. 378. But where money is lent in town, and six month's notice to pay the mortgage money at Lincoln's Inn Hall (though this be not the place named in the proviso) is given, and no objection made to the notice, a personal tender, it seems, will be dispensed with. Ibid.-[Ed.] LITTLETON. Though it of quietness and repose, and uncertainty the cause of variance and contentions and for obtaining of the one, and avoiding of the other, the best mean is, in all assurances, to take counsel of learned and well experienced men, and not to trust only, without advice, to a precedent. For as the rule is concerning the state of a man's body, Nullum medicamentum est idem omnibus, so in the state and assurance of a man's lands, Nullum exemplum est idem omnibus.' The residue of this section and the &c. are evident. * ALSO, in such case, where the place (79) of payment is [Sect.343. limited, the feoffee is not (80) bound to receive the payment in 212 a.] any other place, but in the same place so limited. But yet if he do receive the payment in another place, this is good enough, and as strong for the feoffor as if the receipt had been in the same place so limited, &c. (1 1). may be per formed in an other place, by consent. *212 b. (6 Rep. 46 b. 47. Plo. 69 b. Hereby it appeareth, that the place is but a circumstance; and, 5 Rep. 117.) therefore, if the obligee receiveth it at any other place, it is sufficient, though he be not bound to receive it at any other place. *And so it is if the money be to be paid on such a feast, yet if the money be tendered and received at any time before the day, it is sufficient (S1). *212b. *211 a. Where the place is cer tain, and the tain, notice of perform. given. time uncer ance must be (1 Rol. Abr. 453. Ante. 206. 210.) 18 Eliz. Dyer 354. 2 Rep. 59. 3 Rep. 64.) If a man be bound to pay twenty pound at any time during his life at a place certain, the obligor cannot tender the money at the place when he will, for then the obligee should be bound to perpetual attendance, and therefore the obligor, in respect of the uncertainty of the time, must give the obligee notice, that on such a day, at the place limited, he will pay the money, and then the obligee must attend there to receive it: for if the obligor then and there tender the money, he shall save the penalty of the bond for ever (K 1). The same law it is if a man make a feoffment in fee upon condition, if the feoffor at any time during his life pay to the feoffee twenty pound at such a place certain, that then, &c. In this case (79) de payment, not in L. and M. nor Roh. (80) pas added in L. and M and Roh. (81) It has been formerly doubted, whether the defendant in such a case ought not to plead specially. See 1 Cro. 142. S. C. And. 198. S. C. Mo. 267. S. C. Ow. 45. Savil. 96. 1 Leon. 311. But now this point is settled; for by 4 Ann. cap. 16. s. 12. if the obligor, his heirs, executors, and adminis trators have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the condition of the bond, though such payment was not strictly made according to the condition, yet it may be pleaded in bar of such action, and shall be as effectual a bar thereof as if the money had been paid at the day and place, according to the condition, and had been so pleaded. [Note to the 11th edition.] (11) If a condition be to do an act at such a place upon request, the request may be in any place; as if it be, to deliver at Rotterdam super requisitionem de eodem; the request in any other place, to deliver there, is good. Rol. Abr. 443. 3 Com. Dig. 104. tit. Condition (G 9).[Ed.] (K1) But where the giving of notice becomes impossible by the act of the person to whom it was to be given, it will be dispensed with. 1 Salk. 214.—[Ed.] the feoffor must give notice to the feoffee when he will pay it, for without such notice as aforesaid, the tender will not be sufficient. But, in both these cases, if at any time the obligor or feoffor meet Rep. 92. the obligee or feoffee at the place, he may tender the money. on If A. be bound to B. with condition that C. shall enfeoff D. such a day, C. must give notice to D. thereof, and request him to be on the land at the day to receive the feoffment, and in that case he is bound to seek D. and to give him notice. Post, sect.353. 2 Cro. 9. 10.) (Hob. 51. 1 Rol. Abr. ALSO, if the feoffee in mortgage, before the day of payment LITTLETON. which should be made to him, makes his executors and die, and [Sect.339. his heir entereth in to the land as he ought, &c. it seemeth, in In respect of this case, that the feoffor ought to pay the money at the day ap- the press to pointed to the executors (L 1), and not to the heir of the feoffee, (53)* 诽 to (L1) "By the common law," says Lord Keeper Finch, in his masterly argument in the case of Thornborough v. Baker, "if the condition or defeazance of a mortgage of inheritance, be so penned, that no mention is made either of heirs or executors to whom the money should be paid, in that case the money ought to be paid to the executor, in regard that the money came first out of the personal estate, and therefore usually returns thither again; but if the defeazance appoints the money, to be paid either to heirs or executors disjunctively, there, by the law, if the mortgagor paid the money precisely at the day, he may elect to pay it either to the heirs or executors as he pleaseth. But where the precise day is past, and the mortgage forfeited, all election is gone in law; for in law there is no redemption. Then, when the case is reduced to an equity of redemption, that redemption is not to be upon payment to the heir or executors of the mortgagee, at the election of the mortgagor; for it were against equity to revive that election; for then the mortgagor might defer the payment as long as he pleaseth, and, at last, compound for payment of the money to that hand which will use him best; much less can the court elect or direct the payment as they please, for a power so arbitrary might be attended with many inconveniences throughout. Therefore, to have a certain rule in those cases, a better cannot be chosen, than to come as near unto the rule and reason of the common law as may be. Now the law always gives the money to the executor, where no person is named, and where the election to pay either heir or executor is gone and forfeited in law, it is all one in equity as if neither heir nor executor were named; and then equity ought to follow the law, and give it to the executor; for, in natural justice and equity, the principle right of the mortgagee is to the money, and his right to the land is only as a security for the money. Wherefore, when the security descends to the heir of the mortgagee, attended with an equity of redemption, as soon as the mortgagor pays the money the lands belong to him, and only the money to the mortgagee, which is merely personal, and so accrues to the executors or administrators of the mortgagee. And for this reason, a mortgage of an inheritance to a citizen of London hath been held to be part of his personal estate, and divided according to custom. And though it may seem hard that the heir should part with the land, and he decreed to make a conveyance, without having the money which comes in lieu of the land, yet it will not seem so to them who consider that the land was never more than a security, and that, after payment of the money, the land is in trust for the mortgagor, which the heir of the mortgagee is bound to execute; and his lordship declared, that the right to a sum of money, which is a personal duty, ought always to be certain, and not to be variable upon circumstances. Wherefore his lordship did not think it material that the administrator in this case had assets without this money; for assets, or not assets, is not the measure of justice to executor or administrator, but serves only as a pretence to favour the heir, who either ought to have the money, if there be no assets, or not to have it, though there be assets. And, for the same reason, his lordship did not think it material, that there wanted the circumstance of a personal covenant from the mortgagor to pay the money; for that, though the case of the administrator of the mortgagee had been stronger with it, yet it is strong enough without it. His lordship declared, that he had considered the various precedents in this case which had been urged, whereof one did not come to the very point, there being a great difference between a mortgage and an absolute conveyance, with a collateral agreement to reconvey upon repayment of the purchase money; the other late pre 209 b. (Ante, 209 a. * because the money at the beginning trenched to the feoffee in manner as a duty, and shall be intended that the estate was made by reason of the lending of the money by the feoffee, or for some other duty; and therefore the payment shall not be made to the heir, (S2) as it seemeth, but words of the condition may be such, as the payment shall be made to the heir. As if the condition were, that if the feoffor pay to the feoffee or his heirs, such a sum at such a day, &c. there after the death of the feoffee, if he dieth before the day limited, (83) the payment ought to be made to the heir at the day appointed, &c. And by this section also it appeareth, that the executors do more represent the person of the testator, than the heir doth to the ances210 a. tor; for, though the executor be not named, yet the *law appoints 9 Rep. 39.) (82) come il semble, mes les parols del condition poyent etre tiels, que le payment serra fait al heire, not in L. and M. nor Roh. (83) donques added in L. and M. and Roh. cedents which made for the heir being contrary to the more ancient precedents of this court, and to some modern precedents also, which seemed to his lordship of more weight, his lordship being of opinion, that all mortgages ought to be looked upon as part of the personal estate, unless the mortgagee, in his life-time, or by his last will, do otherwise declare and dispose of the same." I Ch. Ca. 283. Et vid. 2 Ch. Ca. 50, 51. 187. 224. 2 Vent. 348. 351. With respect to the payment of the mortgage money, it may be further observed, that, where the mortgagor dies leaving a real and personal estate, without specifically charging either of them with the payment of the money borrowed, his personal estate shall be first applied towards the payment of the mortgage; because the personal estate was increased by the money borrowed: and, therefore, it is a general rule, that the executor of a mortgagor is compellable to redeem a mortgage for the benefit of the heir, even though there should be no covenant for the payment of the mortgage money. Cope v. Cope, 2 Salk. 449. Howell v. Price, 1 P. Wms. 291. Gower v. Mead, Prec. Ch. 2. And this rule holds in favour of a general devisee or hæres factus, as well as in favour of a hæres natus. Pockley v. Pockley, I Vern. 36. King v. King, 3 P. Wms. 359. And a devisee of particular lands is in like manner entitled to the benefit of redemption by the personal estate. Popley v. Popley, 2 Ch. Ca. 84. 1 Atk. 436. A disposition of the personal estate will not alter this rule; for the court will suppose the intention of the testator to have been, to bequeath only the residue of his personal estate, after payment of debts, unless a contrary intention evidently appears. Noke v. Darby, 1 Bro. P. C. 506. And where a testator charges his lands with the payment of his debts, this will not exonerate his personal estate; for such a charge can only be intended for the purpose of creating an additional fund, in case the personal estate should not be sufficient. Cook v. Gwavas, cited 9 Mod. 187. Bridgeman v. Dove, 3 Atk. 101. Ancaster v. Mayer, 1 Bro. C. C. 454. Lavell v. Lancaster, 2 Vern. 183. It must be an intention not only to charge the real estate, but to discharge the personal. Bootle v. Blundell, 1 Meriv. 193. Where the personal estate is deficient, the lands devised for payment of debts will be applied in discharge of the money due on mortgage. Bartholomew v. May, 1 Atk. 487. Serle v. St. Eloy, 2 P. Wms. 386 n. Galton v. Hancock, 2 Atk. 424. But a testator may exempt his personal estate from the payment of money due on mortgage, by substituting his real for his personal estate. Hall v. Broker, Gilb. Rep. 72. Walker v. Jackson, 2 Atk. 624. Bamfield v. Wyndham, Prec. Ch. 101. Wainwright v. Bendlowes, 2 Vern. 718. Stapleton v. Colvill, Forrest, 202. Leman v. Newnham, 1 Ves. 51. Duke of Ancaster v. Meyer, 1 Bro. C. C. 454. Burton v. Knowlton, 3 Ves. 107. Brummell v. Prothero, 3 Ves. 111. A specific disposition of a chattel will exonerate it from being applied in payment of money due on mortgage. Oneal v. Mead, 1 P. Wms. 693. although, generally, the personal estate is to be first applied in payment, yet the rule is otherwise, where the charge was originally on the real estate; for, in such case, the mortgage must be paid out of the land itself; for the collateral personal security is not to be resorted to, until the principal, which is the land, fails. Countess of Coventry v. Earl of Coventry, 2 P. Wms. 222. Edwards v. Freeman, 2 P. Wms. 437. Wilson v. Earl of Darlington, 2 P. Wms. 664 n. Leman v. Newnham, supra. Ward v. Dudley, 2 Bro. C. Č. 316. And him to receive the money, but so doth not the law appoint the heir to receive the money unless he be named. Lewis v. Nangle, Ambl. 150. Duke of Ancaster v. Meyer, supra. So where the debt, although personal in its nature, was contracted originally by another, as where an estate is bought subject to a mortgage, the personal estate of the purchaser shall not be applied in exoneration of the real estate, (Tweddell v. Tweddell, 2 Bro. C. C. 101.), unless the purchaser appear to have intended to make the debt his own (Pockley v. Pockley, supra. Earl of Belvidere v. Rochfort, 6 Bro. C. C. 520. Billinghurst v. Walker, 2 Bro. C. C. 608); but a mere covenant for securing the debt will not be sufficient for such purpose. Evelyn v. Evelyn, 2 P. Wms. 664. Forester v. Leigh, Ambl. 171. Earl of Tankerville v. Fawcett, 2 Bro. C. C. 57. Tweddell v. Tweddell, 2 Bro. C. C. 152. Billinghurst v. Walker, 2 Bro. C. C. 604. 2 Fonb. Tr. Eq. 287 n. Where a wife's estate is mortgaged for the benefit of the husband, she has, if she survives, a right, after all his debts are paid, to stand as a creditor against his assets, Tate v. Austin, 1 P. Wms. 264. 2 Vern. 689. 1 Bro. P. C. 1. (unless at the time of the mortgage a settlement is made on the wife, Lewis v. Nangle, supra.); but evidence is admissible to show that the wife intended otherwise. The title of the wife to be exonerated is considered, as precisely the same with that of the heir. Clinton v. Hooper, 3 Bro. C. C. 201. 1 Ves. jun. 173. But if the mortgage of the wife's estate is not for the husband's debts, or for debts due from the wife dum sola (Lewis v. Nangle, supra.), his assets, though he join in the mortgage, are not liable. Bagot v. Oughton, 1 P. Wms. 347. And where the wife has the absolute disposal of the money, and appropriates it to the use of the husband, the husband's assets are not liable. Clinton v. Hooper, supra. On the same principle, if a father, tenant for life, and his son, join in raising money, which is received by the father, he is bound to exonerate the son's estate from the incumbrance, Piers v. Piers, 1 Ves. 522. 1 Mad. Ch. 472.; and the son is entitled in equity to rank as a creditor on the real and personal assets of his father for the money, and to call on the mortgagee to make the utmost of his mortgage for the son's relief. Rosse v. Sterling, 4 Dow. 442. With respect to the order in which mortgages are to be paid-It is a rule, that mortgages are to be paid according to the priority of their respective dates, 1 Vern. 525.: but statutes, judgments, and recognizances are, in equity, regarded equally with mortgages. Symes v. Symes, 4 Bro. P. C. 328. 1 Ab. Eq. 142. 2 P. Wms. 495. Where incumbrances are merely equitable, a mortgage of the legal estate to a person without notice, will give him a priority. But if any of the equitable incumbrances are excepted, the mortgagee will be considered as a trustee for them. Ingraham v. Pelham, Ambl. 153. In case of fraud on the part of the first mortgagee, the subsequent incumbrances will be preferred. Draper v. Borlace, 2 Vern. 370. Beresford v. Milward, 2 Atk. 49. But when the party to whom the fraud is imputed was not conusant of the treaty in which the fraud was practised, nor in any manner, nor for any fraudulent purpose, confederating with the party practising the fraud, this principle does not apply. See Ibbotson v. Rhodes, 2 Vern. 554. Pasley v. Freeman, 3 T. R. 51. Whether the mere circumstance of the first mortgagee being a witness to the second mortgage shall be sufficient to postpone him, see Mocatta v. Murgatroyd, 1 P. Wms. 393. Becket v. Cordley, 1 Bro. C. C. 353. Dig. lib. 13. t. 739. Domat's Civil Law, b. 3. t. 1. s. 15. p. 365. That a voluntary leaving of the title deeds with the mortgagor, will postpone the first mortgagee, on the ground that he has thereby enabled the mortgagor to practise a fraud, see Goodtitle v. Morgan, 1 T. R. 762. Treat. of Eq. b. 1. c. 3. s. 4. But there must be a voluntary and unjustifiable concurrence on the part of the first mortgagee to postpone his priority. Peter v. Russell, 1 Ab. Eq. 321. Penner v. Jemmett, Fonb. Tr. Eq. b. 1. c. 3. s. 4. Tourle v. Rand, 2 Bro. C. C. 650. Plumb v. Flint, Anst. 432. Evans v. Bicknell, 6 Ves. jun. 174. A court of equity, however, will not take from the second mortgagee the title deeds, unless the first mortgagee pays him his money. Head v. Egerton, 3 P. Wms. 279. Ex parte Kensington, 2 Ves. & B. 83. Ant. n. (z), p. 39. That a prior mortgage, if defective, will not be preferred to a subsequent effective one to a person without notice, see 1 Ab. Eq. 320. Oxwick v. Plumer, 5 Bac. Ab. 43.: though it is otherwise as to creditors by judgment; for the defect of such conveyance will be supplied in equity against them, since they did not originally take the lands for their security. Burgh v. Francis, 1 Ab. Eq. 320. 5 Bac. Abr. 41. Taylor v. Wheeler, 2 Vern. 564. To what was observed in a former note as to tacking, we may add, that it is a settled rule, that if a third mortgagee buys in the first mortgage, without notice (at the time of lending his money) of the second mortgage, he acquires a title in law, and having equal equity, shall have satisfaction before the second mortgagee, Marsh v. Lee, 2 Vent. 337.1 Ch. Ca. 172. Wortley v. Birkhead, 2 Ves. 571.; though the third mortgagee buys in the first |