Keeping the charge on foot.

Purchase by mortgagee of the equity of redemption.

(o) See Watts v. Byrnes, 1 De G. M. & G. 240. 244; Adams v. Angell, 5 Ch. D. 634, 641, 645, 647; Thorne v. Conn, 1895, A. C. 11, 16 - 18; Liquidation Estates Purchase Co. v. Willoughby, 1896, 1 Ch. 726, 1898, A. C. 321.

(p) See cases cited in preceding note; and Bailey v. Richardson 9 Hare, 734; Phillips v. Gutte-ridge, i De G. & J. 531; Hayden v. Kirkpatrick, 34 Beav. 645; Re Pride, 1891, 2Ch. 135. a mortgagor paying off a first mortgage created by himself cannot by any means set up the charge to defeat or hinder his own subsequent incumbrancers: Watts v. Symes, 1 De G. M &: G. 240, 244. Neither can he defeat his own subsequent incumbrancers by purchasing the property at a sale thereof under a power of sale given by such first mortgage: Otter v. Faux, 2 K. & J. 650, 6 De G. M. & G. 638. But if a man become entitled to an equity of redemption by descent or devise, he may keep alive for bis own benefit any charge made l>v his predecessor, which he chooses to pay off: Deris v. Barrett, 14 Beav. 542; or if he be himself the mortgagee under any Bach previous charge, the same will not merge if such be not his intention: Forbes v. Moffatt, l8 Ves. 384.

(q) Above, pp. 477. 480, and notes.

In connexion with the sale of an equity of redemption, it may be useful to mention the rules as to marshalling securities. Where two properties belonging to the same owner have been mortgaged by him to the same mortgagee or are otherwise subject to some paramount charge affecting both of them (x), and he has subsequently assigned over one of them for valuable consideration, whether on sale, mortgage, or settlement {y), then if the paramount incumbrancer satisfy his security out of the property so assigned (z), the assignee is entitled in equity, as against the owner, the trustee in his bankruptcy (a), and his representatives taking by succession after his death and subject to any agreement to the contrary (b), to have the securities marshalled, that is, to stand in the place of the paramount incumbrancer with regard to the other property to the extent of the value of the property taken (c) to satisfy the paramount charge. The assignee is in fact entitled, in equity, as against the owner, his trustee in bankruptcy, heirs, executors, administrators and devisees, and in default of agreement to the contrary, to have the property so assigned to him exonerated from the charge (d).

Marshalling securities.

(r) 2 Dart, V. & P. 917, 5th ed.; 1040, 6th ed.; 952, 7th ed.; Toulmin v. Steere, 3 Mer. 210, 224.

(s) Adams v. Angell, 5 Ch. D. 634; above, p. 481, note (p).

(t) See Adams v. Angell, ubi sup.; Davidson, Prec. Con v. vol. ii. pt. i. 324, n., 327, n., 4th ed.; 1 Key & Elph. Prec. Conv. 490, 531, and notes, 4th ed.; 486, 525, and notes, 8th ed.

(u) Re Gibbon, 1909, 1 Ch. 367: above, p. 433.

(x) See Webb v. Smith, 30 Ch. D. 192. 200,202; The Chioggia, 1898, P. 1. 6. Marshalling is also permitted where several propertied have by consolidation of mortgages become subject to the entire claim of one mortgagee; above, pp. 476, 177, and note(s); where properties belonging to different owners are pledged for the same debt; Going v. Farrell, Beatt. 472; and in favour of a Burety; Heyman v.. Dubois, L. R. 13 Eq. 158,

(y) Marshalling has been allowed in favour of the grantees under a voluntary settlement containing covenants thai the land settled should remain to the uses assured, and for quiet enjoyment; Hales v. Cox, 32 Beav. 118: but not where there was a covenant for further assurance only; Ker v. Ker, I. R. 4 Eq. 15; ft Jones, 1893, 2 Oh. 461, 473, 474

(z) The paramount incumbrancer is entitled to satisfy his security out of whichever property he may choose first to resort to, and the Court will not interfere with the exercise of this right: Wallis v. Woody ear, 2 Jur. N. S. 179.

(a) See Expte. Hartley, 1 Deac. 288: Baldwin v. Belcher, 3 Dru.. & War. 173. 17(i: Gibson v. Sea-grim, 20 Beav. 614; Heymnn v. Dubois, L. R. 13 Eq. L58.

(A) See Re Mower's Trusts, L. R. 8 Eq. 110.

Bee Cradock v. Piper, 15 Sim. 301, 302.

(d) Hardwicke, C, Lanoy v. Athol, 2 Atk. 444. 44ti: Eldon, C . Aldrich v. Cooper, 8 Ves. 382, 396; Averall v. Wade, LI. & G. t. Sugd. 252. 259; Hughes v. Williams, 3 Mac. & G. 683, 690, 691: Handcock v. Handcock, 1 Ir.

Ch. 444, 474: Tidd. v. Lister, 10 Hare, 140, 157, 3 De G. M. &

31 (2)

This equity is however enforced only against the persons above specified and not against any assignees by act inter vivos, whether taking for value or gratuitously, of the other property (e). If therefore in the case put the owner assign to different persons both of the properties subject to the paramount charge, the assignee who is prior in time will lose the right, which but for the subsequent assignment he would have enjoyed, to have the property assigned to him entirely exonerated from the charge. But he will not be deprived of all right of marshalling; for if the paramount incumbrancer exhaust that property, he will still have the right to have the securities marshalled by apportioning the paramount charge on both properties rateably according to their respective values, and standing in the paramount incumbrancer's place as against the other property in respect of that proportion of the paramount charge which according to such apportionment it ought to bear(f), and to the extent of the property, which according to such apportionment was that assigned to him; that is to say, up to the value of the property exhausted after deducting its due proportion of the paramount charge (g). Thus if Blackacre, worth 2,000/., and Whiteacre, worth 1,000/., belonging to A. be mortgaged to B. for 2,100/., and then Blackacre be mortgaged to C. for 900/., and B. sell Blackacre for 2,000/. and so repay himself to that extent, C. is entitled to stand in B.'s place as against Whiteacre; and if "Whiteacre should sell for 1,000/., notice of C.'s charge on Blackacre, and had afterwards taken a transfer of B.'s mortgage, D. might sell Black-acre in satisfaction, so far as it would extend, of that mortgage, and then tack his interest in Whiteacre to B.'s charge thereon and so exclude any equity of C. against Whiteacre. Or if C. had first obtained a transfer of B.'s mortgage, he might have sold Whiteacre to satisfy that mortgage pro tanto (m) and then tacked his own charge on Blackacre thereto (n).