1843.-Ede v. Knowles.

tence from time to time in the course of executing the original agreement, preclude the parol evidence from being *received. That is not my opinion.[2] I am of opinion [*180]

[2] The meaning and object of the deposit has been allowed to be explained by parol evidence, a circumstance which has often been lamented. Ex parte Hay, 15 Vesey, 4; Norris v. Wilkinson, 12 Vesey, 197. "There is nothing," said Lord Eldon, "that requires to be watched with more jealousy than this doctrine of lien by the deposit of deeds, especially when the inference contradicts a written instrument." Ex parte Coombe, 17 Ves. 370 If there are false and contradictory accounts as to what was the nature of the deposit, it cannot be held to give a lien; (Anon. 1 Mad. Pr. 675;) but contradictory statements may be subject of inquiry. Ex parte Mountford, 14 Ves. 607.

In all cases where there is anything equivocal in the circumstances, the intention and object of the deposit may clearly be examined into. Casberd v. Attorney-General, 6 Price, 411, 459. Lucas v. Commerford, 3 Bro. 166.

That the doctrine of equitable mortgages has been received with disapprobation, and that Courts are disinclined to enlarge its operations, see Norris v. Wilkinson 12 Ves. 197; Ex parte Kensington, 2 V. & B. 83; Ex parte Whitbread, 19 Ves. 209; Ex parte Hooper, 19 Ves. 477; Mountford v. Scott, Turn. & R. 280.

The case of Russell v. Russell, 1 Bro. C. C. 269, is the leading case which first established these equitable liens or mortgages, and the establishment of this doctrine has been frequently lamented. See Edge v. Worthington, 1 Con. 212; Ex parte Hooper, 19 Ves. 477.

Lord Abinger, in Keyes v. Williams, 3 Y. & C. p. 61, has attempted to vindicate the Court of Chancery from having violated the statute of frauds. 29 Car. II., c. 3, s. 4. He says "The doctrine of equitable mortgages has been said to be an invasion of the statute of frauds, and no doubt there was great difficulty in knowing how to deal with deposit of deeds by way of security after the passing of the statute. But in my opinion, that statute was never meant to affect the transaction of a man borrowing money and depositing his title deeds as a pledge for the payment. A court of law could not avail such a party to recover back his title-deeds by an action of trover; the answer to such an action being, that the title-deeds were pledged for a sum of money, and that, till the money is repaid, the party has no right to them. So, if the party comes into equity for relief, he would be told, that before he sought equity, he must do equity by repaying the money in consideration for which the deeds had been lodged in the other parties hands. The doctrine of equitable mortgages therefore, appears to have arisen from the necessity of the case. It may, however, in many cases operate to useful purposes, and is certainly not injurious to commerce.. In commercial transactions it may be frequently necessary to raise money on a sudden, before an opportunity can be afforded of investigating the title deeds and preparing the papers. Expediency, therefore, as well as necessity, has contributed to establish the general doctrine, although it may not altogether be in consistency with the statute."

It has been determined by a great number of authorities, that a lion on land may be obtained by a mere deposit of deeds relating to the lands, notwithstanding the staVOL. II. 22

1843.-Ede v. Knowles.

that by the parol evidence, or the written documents coupled with that parol evidence, (which clearly is receivable,) a case of equitable mortgage upon the property for £4000 proved to have been paid is established.

IT appearing that sums exceeding £4000 were, between the 16th and 20th April, 1841, both inclusive, advanced by the plaintiff to John Knowles or to John Knowles & Co., at the request of John Knowles, upon an agreement for a security on the property comprised in certain deeds mentioned in the exhibit A, (the letter of the 16th April,) deposited with the plaintiff on the 16th April, declare that the plaintiff became equitable mortgagee for £4000, and interest, upon the property comprised in those deeds, and let the Master inquire what the deeds were which were so deposited on the 16th April, and what was the property therein comprised. Let him take an account of what is due for principal and interest at £5 per cent., in respect of the £1000. And it being alleged by all parties that the property comprised in the in

tute of frauds. Whether the lien obtained by a simple deposit is, as it is generally called, an equitable mortgage, or whether it amounts only to a charge, is perhaps left in some obscurity. The questions which generally arises in such cases are, is the deposit of the deeds all that is intended to be done, or is it gathered from the act of deposit that something further—namely, a former security, such as is usually given on an advance of money, on the security of land,—is to be given? If the former only, then, according to the preponderance of authority, the deposit amounts to a simple charge, and the remedy to enforce the charge will be the same as is given in other cases where money is charged upon land—namely, by sale. If the latter, then the remedy would appear to be, first, to compel the completion of the contract, and then give the ordinary remedies which the mortgagee is entitled to.

Lord Thurlow and Sir William Grant were of the opinion that, where title-deeds were delivered by the debtor to the creditor, or to a solicitor, not specifically by way of pledge, but in order that a mortgage might be prepared, (no money passing at the time,) and before the mortgage was executed the debtor died, or became bankrupt, the transaction must be considered as incomplete, and that it did not create a lien upon the estate. Ex parte Bulteel, 2 Con. 243. Norris v. Wilkinson, 12 Ves. 192. But see Ex parte Bruce, 1 Rose, 374; Edge v. Worthington, 1 Con. 212; Hockley v. Bantock, 1 Russ. 141; Keyes v. Williams, 3 Y. & Coll. 62. In the case last cited, Lord Abinger said—

"It has been ably argued for the defendant, that the circumstances of the deeds having been deposited, not as present security, but with a view to a future security, gives rise to a distinction between this case and others which have been decided on the general doctrine. Certainly, if before the money was advanced, the deeds had been deposited with a view to prepare a future mortgage, such transaction could not be considered as an equitable mortgage by deposit. But it is otherwise where there is a present advance, and the deeds are deposited under a promise to forbear suing, although they may be deposited only for the purpose of preparing a future mortgage. In such cases, the deeds are given in as part of the security, and become pledged from the very nature of the transaction.

1843.-Ede v. Knowles.

denture of settlement of the 15th April, 1837, is the same property as that comprised in the deeds deposited on the 16th April, 1841, declare such deposit effectual against the settlement. Let the decree be without prejudice to any question between the codefendants. Take an account of all the dealings and transactions between the plaintiff and the house of John Knowles & Co., up to the time of the bankruptcy, and of all the securities held by the plaintiff, and the mode in which the same were dealt with, and what he has received in respect thereof, and what if anything is now due to the plaintiff from John Knowles & Co., distinguishing the amount secured by the deposit.

*BRIDGE V. BROWN.

[*181]

1843: Feb. 11th, 14th, and 15th.

A charge by executors for unnecessary expenses of a funeral disallowed.[1] Charges by trustees for money laid out in luxuries, under color of maintenance, and for money unnecessarily expended in pulling down and rebuilding a house, disallowed.

Where a testator directs that the income of his estate shall be applied in maintenance, and the income is insufficient for that purpose, the Court will in some cases direct payment out of the capital of his personalty.

STEPHEN BROWN, by his will dated the 15th September, 1824, after appointing Stephen Brown and Henry Unwin to be his executors and trustees, and bequeathing the sum of £800 to his wife Ann Brown, gave and devised unto the said Stephen Brown and Henry Unwin the freehold part of his farms and lands, called respectively Borough Fields, Burr Hall, and Cheer Lays, (or the Burr-Hall estate,) situate in the parish of Sible Hedingham, in the county of Essex, or in the adjoining parishes, to hold

[1] That the estate of a deceased person is always liable for the reasonable expenses of his funeral, and can in no event be liable beyond them, see Green v. Salter, 3 Nev. & P. 388; Brice v. Wilson, 3 Nev. & M. 512. See also Tugwell v. Heyman, 3 Camp. 298.

That as against creditors, an executor can only be allowed for funeral expenses, what is absolutely necessary, regard being had to the degree and condition of the deceased. See Hancock v. Portmore, 1 B. & Add. 260; Edwards v. Edwards, 4 Tyr. 438; 2 C. & M. 612. £79 was held too much, where the deceased was a captain in the army on half-pay. Hancock v. Portmore, 1 B. & Add. 260. Where the deceased was a small trader, £10 was held to be a reasonable allowance, as against a creditor. Reeves v. Ward, 2 Scott, 390, 2 Bing. N. C. 235.

1843-Bridge v. Brown

to them the said Stephen Brown and Henry Unwin, and the survivor of them, and the executors and administrators of the survivor, In trust to carry on the business of the freehold parts of the same farms, and from time to time to apply the proceeds and profits thereof for and towards the support of his (the said testator's) wife, and the maintenance and clothing and education of his the testator's two daughters until the younger of them. should attain the age of twenty-five years, if she should so long live, or in case of her death before that time, until his other daughter should attain that age. And he gave and devised all such part or parts of the before-mentioned farms as were copyhold unto and to the use of his the testator's daughter Eliza, her heirs and assigns forever, nevertheless upon trust to permit and suffer the said Stephen Brown and Henry Brown, or the survivor of them, to occupy and enjoy the said copyhold parts thereof, and receive the rents and profits thereof, in the same way and for the same purposes as he had therein before directed with respect to the freehold parts of the before-mentioned farms until the youngest of his daughters should have attained the age of twenty-five years; and when she should have so attained that age, then the

said copyhold parts of the said farms should be and [*182] remain unto and to the use of his said "daughter Eliza,

her heirs and assigns for ever. And in case such proceeds and profits arising from the said farms should not be sufficient for the purposes before mentioned, then the said testator directed his said executors or the survivor of them, his executors and administrators, from time to time to take so much of the interest or dividends arising from his monies invested in Government or other securities as they in their discretion should think requisite, and apply the same towards such maintenance, clothing and education as aforesaid. But in case his (the testator's) said wife should not choose to live with his children or should marry again, or in case she should form any illicit connection with any person or persons whomsoever, then he directed that she should no longer remain in any of his hereditaments and premises, but should be entirely excluded and dispossessed from residing or living upon the same; and he gave and bequeathed to her in lieu of such living and maintenance as aforesaid, one clear annuity

1843.-Bridge v. Brown.

or yearly sum of £70, to be paid into her hands for her sole and proper use, free from the debts and control of any future husband, out of the interest or dividends arising from the money invested as aforesaid, by two equal payments in every year during the term of her natural life; and in such case the said testator directed his said trustees to apply the said profits arising from the carrying on the said business for and towards the maintenance, education and clothing of his said children until the younger of them or (in case of her death) until the survivor should attain the age of twenty-five years; and upon the happening of either of these events the testator gave and devised all the before-mentioned freehold and copy-hold farms, lands and hereditaments with the appurtenances unto and to the use of his said daughter Eliza, her heirs and assigns for ever, &c. And the testator also gave and devised unto his said trustees all that freehold part of his farm and lands called Page's, to hold to them, his said trustees in trust, either to carry *on the [*183] business thereof or to let the same to some other person as they should think proper, and from time to time to invest the rents, profits, and proceeds thereof on some good security until his younger daughter Sarah should attain the age of twenty-five years if she should so long live; and he gave and devised all such part and parts of the before-mentioned farm called Page's as was copy-hold, and also those two copyhold fields called Vastly and Small Gains, and the rents and profits which should have arisen from carrying on the said business or letting the said premises unto and to the use of his said daughter Sarah, her heirs and assigns forever, nevertheless upon trust that she should permit his said trustees Stephen Brown and Henry Unwin or the survivor of them to carry on the business of the said copyhold part of the said farm called Page's together with the said fields, or to let the same for her benefit until she should arrive to the age of twenty-five years in the same manner as he had thereinbefore directed the freeholds of the said farm to be occupied or letten, &c. And the testator also gave and bequeathed the sum of £3170 new £4 per cent. stock, and the sum of 21671. 1s. 7d. or his share or proportion thereof in the £3 per cent. consols and reduced stock then standing in the Accountant General's name