Mr. Rolt and Mr. Shapter contended that this could not be done without a cross appeal. The Court held that the respondents might open the whole decree. (a) Mr. Rolt and Mr. Shapter, for the plaintiff. First, as to the alleged extinguishment of the 15007. Upon the whole evidence it must be taken that there was not any contract on the part of Mr. Tanner for a transfer of Mrs. Severne's security. Without such a contract he had no right to require it to be transferred. Dunstan v. Patterson. (b) [Lord Justice KNIGHT BRUCE said that in the case referred to, the decision had been misunderstood, and consequently misrepresented. He believed, indeed, that the decree had been drawn up in a manner not warranted by any thing that he had directed or said.] In Toulmin v. Steere, (c) an annuitant took a charge subject to a prior mortgage. Subsequently, a second mort- *243 * gage was created, and the second mortgagee took a transfer of the first mortgage, and afterwards joined with the persons interested in the equity of redemption, except the annuitant, in conveying to trustees, who bought under the direction of the Court. Sir W. GRANT held that the mortgages were extinguished. The same point had been already decided in Greswold v. Marsham, (d) Mocatta v. Murgatroyd.(e) Mr. Tanner has the benefit This is substantially the same case. of the redemption as the owner of the property, and cannot stand as mortgagee upon his own estate. He has purchased on an undertaking to pay the mortgage debt, which thus became a debt from himself. [THE LORD JUSTICE LORD CRANWORTH. Can you make out that Mr. Tanner is a purchaser, except by a memorandum, which stipulates for the benefit of the existing security?] (a) See Rawlins v. Powell, 1 P. W. 299. (b) 2 Phil. 341; and see note, p. 342. (c) 3 Mer. 210. (d) 2 Ch. Ca. 170. (e) 1 P. W. 393. [THE LORD JUSTICE KNIGHT BRUCE.How can you avail yourself of one part of the contract without adopting the other?] We submit that it was not one contract, but that the 15007. was paid off without any stipulation that it should be kept alive, and this brings the case within the authority of Toulmin v. Steere, and the subsequent cases in which that authority has been acted upon; such as, Medley v. Horton, (a) Brown v. Stead, (b) Farrow v. Rees, (c) Wade v. Coope. (d) As the subject of the * 244 * security was an equitable share in a reversionary interest, there was no legal estate which could be kept on foot. THE LORD JUSTICE KNIGHT BRUCE. It is plain that a person who borrows money cannot be his own creditor, or set up an incumbrance of his own against his creditor. But Toulmin v. Steere1 carried the proposition a step further, and applied the same rule to a man who acquired an equity of redemption as to the original mortgagor. That decision proceeded upon two previous decisions. The language of Sir W. GRANT is this: "The cases of Greswold v. Marsham (e) and Mocatta v. Murgatroyd (g) are express authorities to show that one purchasing an equity of redemption cannot set up a prior mortgage of his own, nor consequently a mortgage which he has got in against subsequent incumbrancers." With the greatest deference to the authority of that eminent Judge, I always doubted and still doubt whether the cases mentioned by him go that length. In this case the payment and the agreement that Mr. Tanner should have the benefit of Mrs. Severne's security appear to us, on a reasonable view of the acts of the parties, to have been substantially one transaction. We do not think that there is any room for doubt as to what was Mr. Tanner's intention. And whether it was enforceable at law, or in equity only, is immaterial for the purpose of the present argument. Mr. Tanner made the payment with the intention of standing in the place of Mrs. Severne. She became in effect a trustee for him. As the purchase has not yet been completed, the time has not arrived at which the extinguishment could take place. We think (a) 14 Sim. 222. (c) 4 Beav. 18. (d) 2 Sim. 155. 3 Mer. 210; see Otter v. Lord Vaux, 6 De G., M. & G., 638. that Mr. Tanner having paid his money to Mrs. Severne is * entitled to stand in her place in the particular circum-* 245 stances of the case. The Lord Justice Lord CRANWORTH concurred, and their Lordships consequently desired to hear the counsel for the respondents only on the question respecting their claim to redeem one of the mortgages, without redeeming the other. Mr. Stuart and Mr. Dickinson, for the respondents. This is a suit, not for redemption, but for foreclosure; and the rule that a mortgagor must redeem his mortgagee wholly is founded entirely upon the principle that he who seeks equity must do equity completely. The principle does not apply where the mortgagee is the plaintiff, and insists upon his legal right merely, and the mortgagor is not seeking the interposition of the Court (a). This distinction was acted upon in a recent case of Holmes v. Turner, (b) which was followed by Sir G. TURNER in a case of Smeathman v. Bray. (c) In all the cases which may be referred to as supporting a contrary view, there was an actual legal estate in the mortgagee, so that the interposition of the Court was required to restore the property to the mortgagor, whereas in this case there was a mere assignment of an equitable interest, upon trust for sale, with an express trust for payment of the residue of the purchase-moneys to the respondent Symes, after payment of the 4007. and interest only, although the other mortgage debt existed at the time. They referred to Jones v. Smith. (d) * Mr. Shapter, during the argument, said that he was counsel in Holmes v. Turner, and that the point in question was not argued there. Mr. Teed and Mr. Martindale appeared for other parties. * 246 Mr. Rolt was not called upon to reply on this part of the case. THE LORD JUSTICE KNIGHT BRUCE. The respondents are entitled to the 12007., secured by Mrs. Severne's mortgage; but if (a) See Ex parte Berridge, 3 M. D. & D. 467. (d) 2 Ves. Jr. 372. they desire to have the property they must redeem both the appellant's mortgages. THE LORD JUSTICE LORD CRANWORTH. I am of the same opinion. I thought it quite settled that whether the suit was for foreclosure or redemption, the mortgagee was equally entitled to say to the mortgagor, You must redeem entirely or not at all. That is the general rule, and I have looked in vain in the deed in this case for any thing special. * 247 ROBINSON v. ROBINSON. 1851. December 12, 22. Before the LORDS JUSTICES. Where a testator directs his trustees to invest trust moneys in parliamentary stocks or funds, or on real securities, and they omit so to invest it, the cestùis que trustent have not the option of charging them with the moneys which would have been produced if the moneys had been invested in the funds, but are only entitled to have the trust moneys replaced, with interest at 41. per cent.1 It is not necessarily a breach of trust under such a will to continue in their actual state of investment part of the assets, consisting of turnpike bonds. THIS was an appeal from a decision of the late Master of the Rolls, reported in the 11th volume of Mr. Beavan's Reports, p. 371. 1 1 Jarman Wills (3d Eng. ed.), 575 and note (d); 3 Lead. Cas. in Eq. (3d Am. ed.) [749], [750] 454, 473, 474; Knott v. Cottee, 16 Beav. 77, 80; Aspland v. Watte, 20 Beav. 474; Lewin Trusts (5th Eng. ed.), 271, 272; Brown v. Gellatley, L. R. 2 Ch. Ap. 751; Baynard v. Woolley, 20 Beav. 583; Baud v. Fardell, 7 De G., M. & G. 628. Hill Trustees (3d Am. ed.) 537 et seq. and notes, where the subject of investment is discussed at length and the cases cited: Barney v. Saunders, 16 How. (U. S.) 535. Where money is bequeathed to a trustee, to be invested and improved according to his best skill and judgment," it is his duty to invest in safe sccurities, and his discretion in the selection of investments is not enlarged by the words, "according to his best skill and judgment." Kimball v. Reding, 31 N. H. 352. A direction to invest in " 'bank stocks, or freehold lands or lots," will not authorize investment in the United States loan. Banister v. McKenzie, 6 Munf. 447. 46 2 See Smith v. Smith, 4 John. Ch. 281; Harvard College v. Amory, 9 Pick. 462; Thompson v. Brown, 4 John. Ch. 628. Matthew Robinson, the testator in the cause, by his will dated the 10th of January, 1835, gave all the residue of his personal estate to his executors, upon trust that they should, with all convenient speed, collect and convert the same into money, and should place out and invest the net amount thereof, or continue the same in or upon any of the parliamentary stocks or funds, or on real securities, at interest, and should pay the interest and dividends of the said stocks, funds, and securities to his son Augustin Robinson, for his life; and after his decease then upon trust to pay and transfer the said stocks, funds, and securities to, between, and among the children of the said Augustin Robinson. The testator died on the 20th of July, 1837, and in the following month of August the will was proved by the executors. The present bill was filed by the three infant children of Augustin Robinson against the executors, and against their father, for the purpose of having their grandfather's estate administered. The cause was heard on the 29th of May, 1847, when a decree was made directing the usual accounts, and by the decree inquiries were directed as to the securities upon which * 248 the trust property had been invested. * The Master, by his report, after setting out the state of the accounts, found that the testator's personal estate consisted at his death of two sums in the 37. per cents, and also of the following particulars: 54687. bank stock, 51821. London Dock stock, 60007. turnpike bonds, due from the trustees of the Surrey and Sussex roads, and 50001. Surrey and Kent sewers bonds. It appeared that these several funds constituted the whole net residue, after payment of debts and legacies. And the executors paid over the interest and dividends on the whole of them to Mr. Augustin Robinson from the testator's death (subject to the exceptions mentioned below with respect to the road bonds), until the month of July, 1845. In that month the executors sold the bank stock for 11,5117., and the London Dock stock for 60637., and they immediately invested these sums in the purchase of 31. per cents. In the following month of August, 1845, they sold the sewers bonds at par; namely, for 5000l., and that sum also they invested in the 37. per cents. The sums which they obtained on the sales of these three funds were in each case greater than they could have obtained if they had sold them at the end of one year from the testator's death; i.e., |