1850.-Bowker v. Bull. be primarily liable to the payment of the 5,600l. and interest; and the freehold and copyhold hereditaments of which he was seized in fee, should be primarily liable to the same. It appears that, in March, 1844, Bowker obtained a transfer of the mortgage for 4007. made originally to Stevens; and he, thereby, undoubtedly became first mortgagee of all the property, for securing 6,000l. and interest. He is, therefore, clearly entitled to the ordinary decree of foreclosure of all the property comprised in his securities, as mortgagee for 6,000l. The question arises whether he is entitled to consider himself as first mortgagee, on all or any part of the property, for a further sum of 7001., by reason of a deed of the 9th of May, 1849, made between Joseph Bull, of the *one part, and [*34] Bowker of the other part, whereby, in consideration of 7007. paid by Bowker to Bull, he conveyed to him, by way of mortgage, all the property comprised in the prior securities of which he was seized in fee, and also the two assignments of taxes? On the part of the two children, it was contended that Bowker must be postponed to them so far as relates to this latter charge and I think that they are right. The children are, according to what appears on the face of the deed of 1843, mere sureties for their father. Bowker, when he took his further charge in 1849, had full notice of this; and, therefore, he could only take subject to such rights as the daughters had acquired by reason of their having concurred in the former deed. Now, it is quite clear that a surety paying off the debt of his principal, is entitled to a transfer of all the securities held by the creditor, in order that he may make them available against the debtor, as the original creditor might have done. On these grounds, the daughters were certainly entitled, on paying off the 6,000l. mortgage, to have all the securities comprised in the deed of the 3d of March, 1843, made over to them, in order to enable them to reimburse themselves out of their father's separate property comprised in that deed, whatever portion of the 6,000l. they might have been obliged to pay: and this is a demand certainly prior, in point of date, to the last mortgage. It was urged, at the bar, on behalf of Bowker, that this right of a surety is only a po 1850.-Bowker v. Bull. tential equity; which, though it may be asserted by the party himself, yet cannot bind third persons. But I cannot agree to this. The equity gives, to the surety, a right to call for a transfer of the securities, and so binds those securities, into whatever hands they may come, with notice of the charge. [*35] *It was then further contended that, whatever may be the rights of the parties as to the land, yet that the doctrine could not be extended to the indentures of taxes: for that the proviso at the end of the deed, though it stipulated for a priority as to the former, was silent as to the latter. I cannot, however, agree to the proposition that the parties, by expressly mentioning one part of the security, have become bound to forego their rights as to the rest. It will be recollected that the mortgage contains a power of sale; and the proviso might, perhaps, have had reference to that power; that is all. The parties might have meant to stipulate that, as between Mr. Bull and his children, the latter should be bound to resort for their indemnity, in the first instance, to the land, and to the indentures of taxes only in the event of the primary fund, the land, proving deficient. Be this, however, as it may, I do not think that the sureties, by expressly mentioning a part of their rights, can be deemed to have waived or lost the entire right given them by the doctrines of this court. The result is that there must be the usual decree of foreclosure against all the parties, mortgagors, in the deed of 1843, as on a mortgage for 6,000l., and, in case the sum found due is paid, then if all or any part is paid by the daughters or either of them, the securities must all be transferred to them, and Bowker can only make his subsequent security available by redeeming them in the ordinary way.[1] This is the clear opinion I had formed after the hearing; but my attention was afterwards called by Mr. Lee, as amicus Curiæ, [1] This case comes within the general principle, that subsequent advances made by a prior mortgagee cannot be tacked to his mortgage, to the prejudice of one who stands in the position of a junior mortgagee. Hughes v. Worley, 1 Bibb's R. page 200. Colquhoun v. Atkinson, 6 Munf. R. 550. 1850.-Bowker v. Bull. to the cases of Barnes v. Racster,(a) and Bugden v. Bignold;(b) and also I was anonymously referred to a case of Higgins v. *Frankis, in the 10 Jurist, 328, before Sir James [*36] Wigram; and I wished to have an opportunity, before I decided this case, of referring to these authorities. I have now done so; but I see no reason to alter the view of the case which I had previously taken. The two cases referred to in Youn. & Coll. were both cases where the same mortgagor had mortgaged different estates to various parties, some of whom had claims on one estate only, and others on all: and the question was as to the rights of the different subsequent mortgagees to throw the prior mortgagees on particular parts of their securities. But the doctrine there acted on by Vice-Chancellor Knight Bruce, does not seem to me applicable to a case like the present, of several mortgagors, and where the question is as to the right of the surety mortgagee against his principal. The case in the Jurist, before Sir James Wigram, is in strict conformity, as I understand it, with the principle on which I am now acting, except indeed that there Sir James Wigram directed the Master to inquire whether the party was a surety. That would be a perfectly useless inquiry here, and would only occasion unnecessary expense. It is not disputed that Joseph Bull alone is the principal debtor, and that the other parties are sureties. The decree must, therefore, give them a right, as mortgagees, against all the property of Joseph Bull, for whatever they may pay in redeeming the mortgage for 6,000l.; and then Bowker will be foreclosed against them, unless on payment of what is due to them in respect of what they shall so pay in discharge of the 6,000%. mortgage. If Bowker redeems them, the decree will go on, in the usual way, to direct an account of the principal and interest due to him on both mortgages, and, in default of payment, Jo seph Bull will be foreclosed. (a) 1 Youn. & Coll. 401; and 20 Eng. Ch. R. 400, Am. Ed. 1850.-Ex Parte Mary Eleanor Dickson. [*37] *IN THE MATTER OF THE ACT FOR BETTER SECURING TRUST-FUNDS, AND FOR THE RELIEF OF TRUSTEES. EX PARTE MARY ELEANOR DICKSON. Condition.-Legacy. 1850: 4th and 20th November. Testator gave a legacy in trust for his daughter for life, remainder in trust for her children who should attain twenty-one, remainder in trust for two of his sons absolutely: and he gave the residue of his personal estate to his other children. By a codicil, he declared that, finding that his daughter intended to become a nun, he revoked the bequest, in the event of her carrying her intention into effect, and excluded her from all reversionary advantages from his will. The daughter became a nun. Held, that the condition annexed by the codicil, was a lawful one; and that, though the bequest in favor of the daughter was merely revoked, and there was no gift over on breach of the condition, her interest under the bequest ceased on her becoming a nun. WILLIAM DICKSON, a Major-General in the East India Company's service, made his will bearing date on the 4th of March, 1848, and, partly, in the words and figures following: "I bequeath the sum of 10,000l. sterling, unto my wife, Harriett Dickson, my son, Samuel Auchmuty Dickson, and my sonsin-law, John Neeld, Esq., and the Honorable Mortimer Sackville West, their executors, administrators and assigns, upon trust to invest the same, in their or his names or name, in the Parliamentary stocks of Great Britain, or at interest on government or real securities in Great Britain or Ireland; and upon further trust to pay the annual produce thereof to my daughter, Mary Eleanor Dickson, for her life; and, after her decease, the said sum of 10,000l. and the stocks and securities thereof, and the annual produce thereof, shall be in trust for all and every the child and children of my said daughter, Mary Eleanor Dickson, who being a son or sons shall respectively attain the age of 21 years, or, being a daughter or daughters, shall respectively attain that age or marry under that age, to be equally divided between or among 1850.-Ex Parte Mary Eleanor Dickson. them, if more than one, for their respective absolutc #benefit: and, if there shall be but one such child, the [*38] whole to be for such only child absolutely: and, if there shall be no child of my said daughter, who, being a son, shall live to attain the age of 21 years, or, being a daughter, shall live to attain that age or be married, then the said sum of 10,000l. and the stocks and securities thereof, shall, subject to the trusts aforesaid, be in trust for my sons, Samuel Auchmuty Dickson and William Thomas Dickson, in equal proportions, absolutely." And the testator gave the residue of his personal estate, after payment of his debts, funeral and testamentary expenses and legacies, to the same trustees, in trust for his sons and his daughters, Harriett and Fanny." The testator made a codicil to his will, dated on the same day as his will, and partly as follows: said will, "In the distribution of my personal property in my I left the sum of 10,000l. to my executors therein named, in trust to pay the interest of that sum to my daughter, Mary Eleanor Dickson, during her life, &c., &c. (a) But now finding that she contemplates remaining in a Roman Catholic convent and becoming a Nun, I, consequently, hereby declare that, in the event of her carrying out her intention of taking the veil, becoming a Nun, continuing to reside in a convent, or, in any other way, associating herself, permanently, with any Roman Catholic establishment of that nature, she would(a) forfeit all claim to a(a) benefit from the said sum of 10,000l., and I hereby, in that case, revoke the said bequest; and, in order to prevent any portion of my property from being appropriated to other purposes than the benefit of my family, I hereby exclude my said daughter, Mary Eleanor Dickson, from all reversionary(a) advantages whatever, from my said will." *The testator died shortly after the date of his will and [*39] codicil. (a) Sic. |