excepted cases out of the general rules of revocations". considera mortgages in courts of law and equity. Mortgages in fee are differently regarded in the Different courts of common law and those of equity At law tion of they are total revocations, but in equitable consideration they are only revocations pro tanto (I). It is not on the ground of the particularity of purpose that a mortgage in fee is in equity held to be only a revocation pro tanto, though the distinction between the practice of courts of equity and law have been often incautiously put upon that ground; but the true reason arises out of the distinct considerations under which mortgages pass in courts of law and courts of equity. A court of law can only look to the legal operation of the deed, whereby the testator, by conveying out of himself his legal estate, of necessity must be held to revoke a previous disposition by will of the same estate; but in equity the transaction has another aspect, and is only regarded as a security for the debt; the de * 3 Atk. 805. (1) And if the mortgage be by deed and fine, it is nevertheless said to be a revocation only pro tanto, in equity, 2 P. Wms. 334. per Lord Chancellor King. But according to Viner tit. devise (P) pl. 10. it was held by Lord Cowper, 6 Ann. that if a man devises lands, and afterwards mortgages the same for years, and then levies a fine sur Cognizance de droit come ceo, and not a fine sur concessit, this will be a revocation; but that a fine sur concessit would have revoked only pro tanto. It is a critical question whether the principle upon which courts of equity consider mortgages as only revocations pro tante does not reject this distinction. convey ances by way of or for pay visor remains complete owner, as before, of the estate, subject only to the security, which in the conIn equity, templation of equity is nothing but a chattel. And, upon the same principle, if, after a devise, the tesmortgage, tator makes a conveyance of the whole fee, upon trust to sell and pay debts, the interest of the testator (2) is only affected to the extent of that incumbrance. To that extent the will is revoked; but the equitable estate in the subject of the devise remains unaltered, the charge. except in so far as it is become charged with such ment of debts ge nerally, are only revoca tions to the extent of debts; and therefore if, after such deed of conveyance, the legal estate in the remaining part of the property, when the object of payment of debts has been satisfied by the disposition of part, is taken back by the testator, by a reconveyance to himself and his heirs, his will is unrevoked in equity". The late Lord Alvanley (3), when sitting as the Master of the Rolls in the case of Harmood v. Oglander, states the criterion for ascertaining when equity will interfere with the law in respect to the revocation of wills by subsequent conveyances, and Vid. Harmood v. Oglander, 6 Vez. Jun. 221. Lord Al- defence of (2) It is to be observed, however, that if A. devises lands to his 'executors to be sold for the payment of his debts, and then conveys it to trustees for the payment of debts, the devise is revoked. 2 Ch. Ca. 116. (3) It would be a sort of injustice to that learned Judge to omit this opportunity of introducing to the reader the ingenious vindication which, in the course of his judgment in this case, he makes of his decision and doctrine in the case of Williams v. Owen. "If, says he, instead of articles, the testator had, before the marriage, to what extent, with great precision, and in a manner which shews that the doctrine is not grounded on the particularity of the object of the deed. He lays it down as a primary rule of law, that " any alteration of the estate, or a new estate taken, is at law a revocation, whether for a partial or a general purpose; equity never controuls the law upon revocation, except either where the beneficial interest, being distinct from the legal estate, is devised, and the devisor if he afterwards takes the legal estate, takes it without any modification or alteration; or where, having the complete legal and beneficial estate at the date of the will, he divests himself of the legal estate, but remains owner of the equitable interest, as in the case of a mortgage, or a conveyance for the payment of debts." In the above case of Harmood v. Oglander the object of the intended recovery was a mortgage; it was therefore for a partial purpose; but that alone conveyed to a trustee, in trust for himself till the marriage, then for himself for life, remainder to the issue in tail, remainder to himself in fee, and then made the will, and then had called upon the trustee to convey, and he had conveyed, it is admitted that that would have been a complete revocation in law; but as clearly it would not have been a revocation in equity, and the heir must have conveyed to the uses of the will. In principle that does not differ from the case of Williams v. Owen. There the devisor was bound by the articles, and he might have been compelled to convey accordingly. Then it is strange to say, that if a conveyance were taken from a trustee it would be no revocation; but if, according to his obligation, he himself conveyed to the same uses, it would be a revocation. No one can deny that articles are in equity equal to a conveyance. No one can deny that he remained a trustee to the use of the articles, and must have conveyed accordingly." But see supra, page 274. The true ground on which mortgages in fee are considered as only re pro tamo. could not save it; and although, if it had been a simple conveyance of the fee by way of mortgage, it would have been only a revocation pro tanto; yet the mode of effecting this intention being by recovery, with double voucher, which in equity as well as law proceeds upon a previous conveyance of the whole estate from the owner to the tenant to the præcipe, to be recovered out of him by the demandant, from whom a new estate is to be taken, the will was held to be clearly revoked; and this although the recovery was not, in fact, proceeded in further than the conveyance to the tenant to the præcipe. In Sparrow v. Hardcastle, as that case is reported in a note to Goodtitle v. Otway, in the reports of Messrs. Dornford and East, Lord Hardwicke intiin Equity mates the true ground on which mortgages in fee are Vocations considered in Equity as only revocations pro tanto of a will. "The principal ground," says his Lordship, "on which they put this case is, that this grant was intended only for a particular purpose, and that when that purpose was answered the estate was not intended to be altered, but to remain as before; and this was compared to a mortgage. The reason why mortgages are taken to be out of the general rule is this. It does not depend on the general ground insisted on at the bar of being conveyances for a particular purpose, (4) but on the foot of being securities only. Whether the mortgage be in fee or for years • Vid. 7 T. R. 417. (4) In Harmood v. Oglander, Lord Eldon gives full confirmation to this opinion. That case was decided for the entire revocation both at law and equity, on the ground of there being uses de only, is all one in this Court; they are alike considered as chattel interests. A mortgage in fee goes to the executors, (for whom the heir is only a trustee), supports no dower, and has no one property of a real estate." So that upon an accurate consideration of this point, we shall perceive nothing in it which breaks in upon the maxim of equitas sequitur legem. The truth being that when an estate is charged or mortgaged, a Court of Equity does not regard the estate as any way passed, modified, altered, or affected (5). The same doctrine is carried to a trust for payment of debts; so that the resulting beneficial interest dlared upon the recovery beyond the mere purpose of the mortgage. Indeed wherever a recovery is necessary, the estate must undergo an alteration thereby and therefore if a tenant in tail makes a mortgage, and for that purpose suffers a recovery, and declares the ulterior use to himself in fee, the estate is altered, and the will is clearly revoked. See 8 Vez. Jun. 106. between an Equity of redemp tion and a mere trust. (5) An equity of redemption imitates more closely the legal Difference estate than a mere trust. See the notice taken of this distinction in Burgess v. Wheate, 1 Blackst. 145. and see Sir Matthew Hale's definition of a mortgage. Hard. 469. Pawlet's case. So Lord Nottingham, (M. S.) says, an equity of redemption charges the land, and is not a trust. Blackst. 145. A mortgage is not a mere trust, but a title in equity. In a word, the equity of redemption is in equity the fee simple of the land, and by consequence, after foreclosure, the mortgagee is considered as acquiring a new estate. But if it be a mortgage for a term of years only, and the equity is foreclosed, or released, after the will, the new interest may pass under the general words of the residuary clause; for the equity which is so gained by the release or foreclosure is the interest in a chattel only, and therefore may well pass by the prospective operation of the residuary devise, if sufficiently comprehensive in expression. |