This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(m) Solomon v. S., (1864) 33 L. J. Ch. 473 ; 10 L. T. 54 ; Re Wormsley's Est., (1876) 4 Ch. D. 665 ; 46 L. J. Ch. 102; Gall v. Fenwick, (1874) 43 L. J. Ch. 178; 29 L. T. 822; Re Bull, (1884) 49 L. T. 592; see now the Act of 1877, inf. pp. 832-3.
(n) Trestrail v. Mason, (1878) 7 Ch. D. 655; 47 L. J. Ch. 249.
(o) Re Ritson, 1899, 1 Ch. 128 ; 68 L. J. Ch. 77.
(p) Stringer v. Harper, (1858) 26 Beav. 33.
"Where a testator gives a mortgage for a certain debt, and afterwards further mortgages the same property as well as other property to secure that and further advances, it is a question of construction whether all the advances are intended to be treated as one debt, and so are to be borne rateably by the various properties, or whether the land first charged is intended to be the primary security (r). So, too, where several properties are mortgaged contemporaneously by different deeds, but one is called a collateral, though not, in fact, a collateral in the sense of being a secondary security (s); and it would seem that if the word "collateral " is to have this meaning, and not be treated as equivalent to "parallel" or " additional," this should be expressly stated in the contract (t).
Where several mortgages of various properties are made to secure one debt.
As against the Crown claiming in default of next of kin the devisee is not entitled to have the mortgage debt satisfied out of undisposed-of personal estate (u).
The statute does not operate against the Crown where there are no next of kin.
As to the exceptions in the Act.
Where a testator, by a will made in 1847, devised his mortgaged real estate, and directed his debts to be paid out of his personalty, and by a testamentary instrument in 1801 merely gave a pecuniary legacy, but did not refer to the former will, it was held that the will must be treated as already made at the date of the Act; and that the devisee was entitled to have the mortgage debt satisfied out of the personal estate (x) ; so, the heir of an intestate, who before 1855 executed a mortgage, reserving the equity of redemption to himself and his heirs, is not within the exception (?/) ; and an heir taking by descent an estate, the devise whereof has lapsed, is not a person "claiming under or by virtue of a will," within the Act (s).
(q) Be Baron Kensington, 1902, I Ch. 203; 71 L.J. Ch. 170.
(r) Leonino v. L., (1879) 10 Ch. D. 4G0 ; 48 L. J. Ch. 217; Be Athill, (1880) 1G Ch. D. 211, 223 ; 50 L. J. Ch. 123; and see Be Dunlop, (1882) 21 Ch. D. 583 ; 48 L. T. 89.
(s) Be Athill, (1880) 16 Ch. D.
211; 50 L. J. Ch. 123; Early v. E., (1878) 16 Ch. D. 214, n. ; 49 L. J. Ch. 826.
(u) Dacre v. Patriekton, (1860) 1 Dr. & S. 186; 29 L. J. Ch. 846; Kilford v. Blancy, (1885) 31 Ch. D. 56; 55 L. J. Ch. 185.
There have been numerous decisions as to what is evidence of a "contrary or other intention " within the meaning of the Act (a) ; but these have been rendered of little practical importance by the amending Act of 1867. It will be sufficient to remark that, in cases not coming within the Amendment Act, where a specific source of payment is provided or indicated, as where other real estate is devised in trust to sell and pay debts (b), or where there is a direction that the debts shall be paid out of the "personal estate" (c), it is considered that there is sufficient evidence of intention to exonerate the realty; but that no such intention is evidenced by a mere direction that the debts shall be paid (d), or shall be paid by the testator's "executors out of his estate" (e); or, generally, " shall be paid out of his estate" (f). Whether a simple direction that they shall be paid "by his executors," they not being also devisees in trust for sale of the real estate, would take the case out of the Act, is not clear; though such, it is conceived, would be the decision. It seems that land devised upon trust for sale, and taken in its converted state, is not an interest in land within the Act (g).
What is proof of "acontrary-intention."
(x) Rolfe v. Perry, (1863) 9 Jur. N. S. 853; 32 L. J. Ch. 471.
(y) Piper v. P., (1860) 1 J. & H. 91; 29 L. J. Ch. 719.
(z) Nelson v. Page, (1868) 7 Eq. 25 ; 38 L. J. Ch. 138.
(a) See Buckley v. B., (1887) 19 L. R. Ir. 544 ; Re Campbell, 1893, 2 Ch. 206; 62 L. J. Ch. 594 ; Re Hooper, (1892) W. N. 151.
(b) Newman v. Wilson, (1862) 31 Beav. 33 ; and see Maxwell v. M., (1870) L. R. 4 H. L. 506 ; 39 L. J. Ch. 698, where a Scotch estate charged with a Scotch heritable bond was held to be exonerated by a direction in an English will for payment of the testator's debts out of his residuary real and personal estate.
(e) Moore v. M., (1863) 1 D. J. & S. 602 ; 32 L. J. Ch. 605 ; Eno v. Tatham, (1863) 3 D. J. & S. 443; 32 L. J. Ch. 311. See Re Fleck, (1888) 37 Ch. D. 677 ; 57 L. J. Ch. 943, where there was a direction that private debts should be paid out of life policies; Re Nevill, (1890) 59 L. J. Ch. 511 ; Buckley v. B., sup.
(d) Pembrooke v. Friend, (1860) 1 J. & H. 132; 2 L. T. 742; see observations on this case in Coote v. Lowndes, (1870) 10 Eq. 376 ; 39 L. J. Ch. 887.
(e) Woolstencroft v. W., (1860) 2 D. F. & J. 347 ; 30 L. J. Ch. 22.
(f) Brownson v. Lawrance, (1868) 6 Eq. 1; 32 L. J. Ch. 351.
Now by the Eeal Estate Charges Act, 1867, it is provided, that in the construction of the will of any person dying after 1867, a general direction that all his debts shall be paid out of his personal estate is not to be deemed to be a declaration of an intention to exonerate the realty, unless such intention be further declared by words, expressly or by necessary implication, referring to mortgage debts (h) : and in the construction of the Real Estate Charges Acts, 1854 and 1867, the word "mortgage " is extended to a lien for unpaid purchase-money upon any lands or hereditaments purchased by a testator (i) ; but this did not include a lien for unpaid purchase-money upon lands purchased by a person who died intestate (k).