1844.-Wood v. Wood.

between the parties, as to the compensation, I have no other duty than to declare what seem to me to be the rights and obligations of the parties, and the decree must stand in the way I have pronounced it.

Where an estate is mortgaged, the equity of redemption, unless there appears a clear intention of making a new settlement, remains subject to the old uses, or to the trusts of the original settlement.

By a marriage settlement, a rent charge of 2001. a year was secured to the wife for life, payable quarterly, with powers of distress, &c. To enable the husband to mortgage, the wife released her rent charge to the mortgagee. The equity of redemption was reserved to the husband, who covenanted to convey other lands on the trusts of the settlement. The husband, by his will, gave his real and per. sonal estate to his brother, on condition that he would allow his wife 300l. a year for life. Held, that the 2001. a year remained a valid charge on the equity of redemption; and, secondly, that it was not satisfied by the 300l. a year.

By the settlement made on the marriage of the plaintiff Anna Wood with Nichol Wood deceased, and dated in 1835, Nichol Wood granted to the plaintiff a rent charge of 2007., issuing out of certain specified estates, to hold the same, from the death of Nichol Wood, during her life, for her jointure and in bar of dower or thirds, and payable quarterly, on the 25th of March, &c., with powers of distress and entry, and he covenanted to pay the rent charge, and granted a term of 100 years for securing the same by mortgage or sale.

In 1837, by indenture made between Nichol Wood of the first part, the plaintiff, his wife, of the second part, and the trustees of the marriage settlement of the third part, and Prothero (a mortgagee) of the fourth part, reciting the marriage settlement, and that Nichol Wood, having occasion to borrow the sum of 20002., had requested Prothero to advance him the same, which Prothero had agreed to do, upon having the several hereditaments, &c., thereinbefore mentioned, demised to him, freed from the annual sum of 2001., and of the term of 100 years for securing the pay

1844.-Wood v. Wood.

ment thereof; and reciting that it had been agreed between the parties thereto, that in order to effect the mortgage security for 20007., the several persons parties thereto of the second and third parts, respectively, should join therein, and that Nichol Wood should enter into a covenant with the several persons par

ties thereto, of the third part, to *grant some other heredita- [*184] ments of a competent or equal value with the said messuages therein before mentioned, for a term of 100 years, upon the like trusts &c., as were mentioned and set forth in the marriage settlement, it was witnessed that Nichol Wood and the plaintiff demised the principal part of the settled property to Prothero by way of mortgage for 20007. discharged and released from the jointure, subject to a proviso for redemption by Nichol Wood, his executors, administrators and assigns; and Nichol Wood covenanted with the trustees to demise to them other hereditaments of equal value for 100 years upon the trusts &c., of the marriage settlement.

Nichol Wood, by his will dated in 1838, bequeathed as follows: "I give and bequeath to my dearly beloved brother, Edward R. Wood, all my property, real and personal, on consideration he fulfils the following conditions. He is to allow my dear wife, Anna Wood, the sum of 300l. per year, as long as she lives, and the little cottage at Pater; to pay all my just debts," &c. "If my dearly beloved brother will not undertake to do the above mentioned articles, I wish all my property to be sold to accomplish them."

Nichol Wood died shortly after, and Edward R. Wood disclaimed.

This bill was filed by the widow against the defendant (who was both heir and administrator, and had redeemed the mortgage) for the purpose of recovering the rent charge of 2001. and the annuity of 3001. a year.

Mr. Kindersley and Mr. Bevir for the plaintiff.—First, although the plaintiff joined her husband in the mortgage, and allowed the equity of redemption to be reserved to him,

still she is, in equity, entitled to all her previous rights [185]

1844-Wood v. Wood,

upon the equity of redemption. Ruscombe v. Hare,(a) Jackson v. Innes.(b)

Secondly. The gift of the annuity of 3001. by the will is neither a satisfaction for the rent charge of 2001. a year, nor a performance of the testator's obligation to secure it. Haynes v. Mico, (c) Adams v. Lavender,(d) Devese v. Pontet, (e) Hales v. Darell.(g) The slightest circumstances of difference will prevent the court holding a gift to be a satisfaction or a performance. Here, there are most material differences between the two annual sums. The 2001. a year is a rent charge secured on real estate, with powers of distress and entry, and with a term limited to se. cure it by sale or mortgage, and it is payable quarterly, on the usual quarter days. On the other hand, the 3007. a year is a mere personal annuity, having none of these remedies; it is payable yearly, and on a different day, and it is accompanied with the obligation to pay the testator's debts. By directing payment of his debts, the testator evidently intended to be just; by the gift of 3001. a year he was desirous of being generous.

Thirdly, the covenant of the testator, contained in the mortgage deed, formed a lien on the real estate, which he was then entitled to. Wellesley v. Wellesley, (h) Fremoult v. Dedire.(i)

Mr. Turner and Mr. J. Wilson, contra.-The widow having released her right to her rent charge in a portion of the settled estate, the rent charge has, by operation of law, become wholly extinguished.(k)

[*186]

"The gift of the will, being equally beneficial, is a satisfaction or performance. Weyland v. Weyland,(l) Wathen v. Smith,(m) Peacock v. Glascock,(n) Mascal v. Mascal,(0) Graham v. Graham,(p) Brown v. Dawson.(q)

(a) 6 Dow, 1.

(b) 1 Bli. (O. S.) 104.

(c) 1 B. C. C. 129.

(d) M'Clel. & Y. 41.

(e) 1 Cox, 188.

(g) 3 Beavan, 324.

(h) 4 Myl. & Cr. 561.

(i) 1 P. W. 428.

(k) 3 Cruise Dig. (4th ed.) 301. 1 Inst.

148, a. 18 Vin. Abr. 504. Butler v. Monnings, Noy, 5.

(1) 2 Atk. 633.

(m) 4 Mad. 325.

(n) 1 Rep. Ch. 46.

(0) 1 Ves. sen. 323.

(p) Ibid, 262.

(q) 2 Vern. 498, and Pr. Ch. 240.

1844.-Wood v. Wood.

There is a difference between satisfaction and performance; in cases of performance, the court will disregard slight differences between the obligation and the thing given; Gartshore v. Chalie (a) The rent charge being destroyed, the 300l. a year is given in satisfaction of the obligation created by the mortgage deed. It is of a larger amount, and equally beneficial, and is a charge upon the testator's estate, and may be distrained for; Buttery v. Robinson.(b)

THE MASTER OF THE ROLLS:-The testator in this case, by his will, directed an annuity of 3007. a year to be allowed to his wife as long as she lived. The wife, by her marriage settlement, dated in 1835, had a rent charge of 2007. secured to her by way of jointure, and the question is, whether the annuity of 3007. is to be taken in substitution of the rent charge.

This case has been argued with a great degree of ingenuity. It is said, that previously to the date of the will, the wife had no security at all for the rent charge, except the personal covenant of the husband, and that the annuity given by the will must be considered a performance of that covenant; so that the question comes to this: what was the right of the wife previous to the date of the will. Now the settlement executed [*187] before the marriage gave to the wife an undoubted right to the rent charge by way of jointure. After the marriage the husband had occasion to raise money on this estate; he could not conveniently do it by means of his own interest in the estate, independently of the interest belonging to his wife; he, therefore procured his wife to join in the security.

It is established law that where an estate is mortgaged, the equity of redemption, unless there appears a clear intention of making a new settlement, remains subject to the old uses, or to the trusts of the original settlement. In this case, can there be any doubt as to the intention of the parties? The recital distinctly shows, that the wife had nothing more in view than to assist her husband in raising the money. The recital is, that Nichol Wood, having occasion to borrow the sum of 2000, had

(a) 10 Ves. 13.

(b) 3 Bingh. 392.

1844.-Wood v. Wood.

requested Prothero to advance him the same, which he had agreed to do, upon having the security of the wife. "And whereas it has been agreed, between and by all the said several parties hereto, that in order to effect the said mortgage security," (that is distinctly stated to be the purpose) the wife and trustees should join therein, and that Nichol Wood should enter into a covenant with the parties of the third part to settle other hereditaments, of an equal value with the hereditaments mortgaged. Therefore all the purposes of the operative parts of the deed are clearly recited to be for carrying into effect the mortgage. How can I presume, as against the wife, that some other intention existed, and that the parties intended to create a new settlement, nay, further than that, that they intended wholly to deprive her of the benefit of the original settlement, and to substitute the mere covenant of the

husband? I cannot presume that, for the mortgage was [*188] executed, not for the purpose of creating a new *settlement,

not in order to deprive her of any right, but for the mere purpose of enabling the husband to give a satisfactory security for the money he was desirous of borrowing. I think, therefore, that the plaintiff has the same rights against the equity of redemption, which she would have had on the unincumbered estate if this deed had not been executed.

Having this equitable right, then arises the question whether it is satisfied. I am of opinion that there is no rule of this court by which I can say that the gift by the will is to be considered a satisfaction.

It must be declared that the plaintiff is entitled upon this estate, which is now released from the mortgage, to the rent charge of 2001., and also to payment of the annuity of 300l., if the state of the testator's assets will permit.[1]

[1] Sir Edward Hales, for valuable consideration, granted to his two sisters annuities of 3001. each, during their lives, payable in January, April, July and October, in every year. By his will he gave his widow an annuity in lieu of the annual sum payable to her under her marriage settlement, and of dower; and he directed his debts to be paid, and bequeathed to his sisters respectively, annuities of 9001. and 5001. each for their separate use, payable on the usual quarter days of payment: it was held, that the annuities of 3001, each were not satisfied by the annuities given by the will, and that the sisters were therefore entitled to both annuities. Lord Langdale, M R. "A covenant to grant, or to secure an annuity may be performed