MORTGAGE. In statu quo, and no injury would result to the mortgagee from expenses incurred in repairs, improvements, or otherwise; as, in such case, although the mortgagee hath the legal title, yet the mortgagor seems to have the greater equity. Besides, as the original intention of the parties was a loan, not a purchase, no injustice would be done by giving the mortgagor time to redeem, upon making full satisfaction to the mortgagee". And such a distinction seems to be warranted, by the observation of the court in the case of Roscorrick v. Barton; in which, redemption was denied to a remainder-man after twenty years; but the Lord Keeper said, that he made a great difference between parties that came to redeem, who were no parties to the mortgage, and those that were°.

And though the mortgagee call it a debt, in his will, (especially if to a collateral purpose only) it will not alter the nature of the estate the mortgagee has in the premises, after a foreclosure made absolute, and many years possession by the mortgagee P.

In some cases, we have said, the court will decree a sale in the first instance. This happens principally in the case of reversions, where, if the money is not paid, and the interest is running in arrear, the court will decree that the mortgagee may sell to satisfy the debt.

And so, if a mortgagor die, and his personal estate prove insufficient to discharge the mortgage, the mortgagee may, on filing a bill to enforce payment of the money due, pray a sale of the mortgaged estate in the first instance; provided the same person is both heir and executor; but where those characters are filled by different persons, it seems to be necessary first to call for an account of the personal

"And it is the same, where an executor is himself a mort- MORTGAGE.

gagor to the testator; as in this case the bill must be for a

sale, and not a foreclosure.

And so, in some cases, where the mortgagor stands in contempt, and the plaintiff's bill is ordered to be taken pro confesso, the court will decree a sale of the estate'.

But the court will not decree a sale in other cases, merely because the security may prove defective; though it will sometimes, in such case, refer it to a Master to set a valuation on the estate, and the plaintiff to take it pro tanto ".

It does not appear to be clearly settled, whether, where the mortgagor is indebted to the mortgagee, by a bond debt, as well as on mortgage, and the mortgagee exhibits his bill to foreclose, the mortgagor may redeem without discharging the bond debt, as well as that by mortgage; but it should seem not, for there is a material distinction between an application from the mortgagor to redeem, and one by the mortgagee to foreclose; and we are to observe, that the reason of this rule having been laid down in courts of equity, on an application made by the mortgagor to redeem, is, because he who wishes to have equity rendered to him, must render it to those against whom he applies for it. Thus, if a mortgagor, after having forfeited his estate in law to the mortgagee, by neglecting to perform the condition to which he hath made it subject, applies to equity to enable him to redeem, it is but just, that when equity interferes to take from the mortgagee the estate, which by law is become absolutely vested in him, care should be taken that the mortgagee is not prejudiced by its interposition; which he would certainly be, if other debts that he has suffered the mortgagor to contract, (perhaps, in some degree, under confidence that they would be covered by his former security) were left undisu Ibid.

2 Atk. 56.

1 See Dashwood v. Bithazy, Mosel. 196.

MORTGAGE charged. But there is no pretence for the interposition of this maxim, where a mortgagee comes to foreclose; for his intention is to shut out the mortgagor from his equity, and strictly to enforce his own legal title. In such case, therefore, the mortgagee electing for himself, and choosing to have a strict performance of the contract, the only equity which he is entitled to against the mortgagor, seems to be, to be decreed exactly that which the law would give him, and for which he hath stipulated, namely, the land, or the mortgage-money. A distinction which seems to be countenanced in the case of Sharpnell v. Blake *.

And this distinction, between cases where the application to equity is made by the mortgagor, and cases where it moves from the mortgagee, is analogous to a rule laid down on occasions something similar, namely, where equity is required to carry the debt beyond the penalty of a bond; for where the plaintiff came to be relieved against the penalty of a bond, it was so decreed, upon payment of the principal, interest, and costs, though they exceeded the penalty; and the decree was affirmed upon an appeal to the House of Lords. So, where lands were extended on a statute or judgment, at much less than the real value, and the conusor came into equity, to make the conusee account according to the real value, he was not relieved without paying all that was due for principal, interest, and costs, although hey exceeded the penalty *; but where the vendor of lands entered into a recognizance of 1,000 l. for quiet enjoyment, which was forfeited; though the loss the vendee sustained was much greater than the penalty, yet, upon application by him, the court would not go beyond it. And where a trustee of a recognizance

released it, without any consideration; upon bill by the MORTGAGE. cestui que trust against the trustee, the court decreed him to pay the principal and interest, so as it exceeded not the penalty. And even, where a settlement or devise was made of lands for payment of debts, and there was a bond debt, the interest of which had over-run the penalty; although such conveyances for payment of debts are construed favourably, yet the creditor, on a bill brought by him, was restrained within the amount of the penalty. The reason that this indulgence is given, on applications by the obligor, and uniformly objected to, on that of the obligee, is, because the obligee has chosen his own security, and made himself judge what recompence he shall have, in case there be a breach in performance of the agreement; and therefore there is no equity to enlarge or better his security: but where the obligee is defendant, he is entitled to all that is due, before any equity can arise in the obligor. So, in the principal case, the mortgagee having contented himself with a bond for the latter money lent, there is no reason to better his security, by tacking it to the mortgage, and making it a lien on the land, which he might himself have done, had he thought proper, either by a new mortgage or an indorsement upon the old one *.

And, it should seem, that the law would be the same, although the subsequent debt were by judgment or recognizance; for such creditor cannot be called a purchaser, nor does he lend his money upon the immediate view or contemplation of the cognizor's real estate; and though the cognizee has thereby a lien upon the land, yet that arises from the operation of law, and not from any specific agreement between the parties; and, therefore, if the principle before stated, be true, namely, that on a bill to fore3 Bac. Abr. 650, 4th

342.

Jevon v. Bush, 1 Vern.

Anon. 1 Salk. 154, pl. 3.

d

edit.

• Pow. Mort. 334, 3d ed.

MORTGAGE. close, the mortgagor may redeem on performing his origi

nal contract, by payment of the mortgage-money, without having any other terms put upon him, the mortgagee will be left, as to his judgment, to his remedy at law.

JOINTTENANCY.

CHAP. VII.

OF ESTATES IN JOINT-TENANCY, AND IN
COMMON.

THE observations which have hitherto been made upon
the several estates and interests which may be had in real
property must be understood, unless where it is otherwise
expressed, to apply to such estates and interests only as are
holden in severalty, i. e. where the proprietor is sole tenant
of the land, &c. holding it purely in his own right without
any person being joined or connected with him in point of
interest 2. But estates may be further considered in
respect of the number and connection of the owners; for
they may be holden not only in severalty but in joint-
tenancy; in common; and in coparcenary; in all of which
there is a plurality of tenants.

Estates in joint-tenancy, and in common, are so similar with respect to some of their properties, and so directly opposite with respect to others, that the most advantageous mode of treating them will, I apprehend, be to consider them in one point of view, by which means their coincidences and differences, with the reasons of each, will be more distinctly perceived. But an estate in coparcenary will be more conveniently referred to a separate consideration.