1841. Rolls. CARTRE บ. MAHON. Nov. 8. operation against the husband only, and could not affect Mrs. Mahon, even in the event of her surviving her husband. By reason of the nonanticipation clause in the settlement, she could not, by any act of hers, now charge the dividends payable to her; and it is declared that the charging order under the statute shall not "have any greater effect than if the debtor had charged such stock, &c." As Mrs. Mahon could not charge this stock, neither can the Court under this statute. Mr. John George, for the petitioner. The Court will not look behind the judgments, which are regular in form: they are for debts incurred by the father of Mrs. Mahon, and to which she became liable as his executrix. The non-anticipation clause in the settlement affects only the dividends payable to Mrs. Mahon during the joint lives of herself and her husband; she has power to appoint the principal, subject to the life interest of her husband, in the event of his surviving her; and if the husband shall be survivor, and no appointment made by Mrs. Mahon, the principal is to be paid absolutely to him; but if she is the survivor, then it is to be paid absolutely to her. The 23rd section of the Act applies to every interest which the judgment debtor may have, "whether in pos"session, remainder or reversion, and whether vested or contingent, as "well in any such stocks, &c., as also in the dividends, interest or annual "produce of any such stocks," &c. Therefore, no cause has been shewn against making the conditional order absolute. The MASTER OF THE ROLLS, after stating the provisions in Mr. and Mrs. Mahon's marriage settlement, said, that the clause against anticipation would not prevent an appointment of the dividends by Mrs. Mahon, in the event of her surviving her husband; Tullett v. Armstrong (a); that both she and her husband had interests in the stock not affected by the non-anticipation clause, and the 23rd section of the Act extends to all interests of the judgment debtor, "whether in possession, remainder, or reversion, and whether vested or contingent in any stock." His Honor further said, that he did not give any opinion as to Mrs. Mahon's liability upon the judgments in the petition mentioned, in the event of her surviving her husband; but it appearing that both Mr. and Mrs. Mahon had chargeable interests in the stock in question, and the judgments being in form against both husband and wife, the cause shewn should be disallowed, and the conditional order made absolute, to the extent of a competent portion of the stock, without prejudice to the right of Mrs. Mahon to receive the dividends on the stock so charged during the joint lives of herself and her husband. (a) 1 Beav. 32; affirmed by Lord Cottenham, C., on appeal, 4 My. & Cr. KIRBY v. O'SHEE. 1841. Equity Exch. LAFFAN v. O'SHEE. (Equity Exchequer.) RICHARD POWER O'SHEE was in his lifetime seized in fee of certain estates situate in the county of Waterford; and was also absolutely entitled to a sum of £2000, charged upon certain other estates, situate in the county of Kilkenny, of which he was tenant for life. On the 1st of September 1817, he conveyed the Waterford estates in fee, and assigned the charge of £2000 to Judith Brown, by way of mortgage, to secure the repayment of a large sum of money. The money advanced by Judith Brown upon the security of that mortgage, was applied in payment of several judgments affecting the Waterford estates, which judgments were, by a deed of equal date, assigned to a trustee for the mortgagee, as a further security for the sum lent. On the 7th of August 1824, R. P. O'Shee mortgaged the equity of redemption of the Waterford estates, to Joseph Laffan, in fee, to secure the repayment of the sum of £6000; and the money advanced to him that occasion was applied in payment of three judgments affecting upon the mortgaged estates, which had been recovered in the years 1813, 1816, and 1817; and also, in the repurchase of an annuity of £440 per annum, which had been granted by deed of the 30th of May 1817 for the lives of two persons, one of whom was still in esse, and which was charged upon the same estates. The judgment of 1817 was entered on the 25th of January, in that year. These judgments were assigned, by deed of even date with the mortgage, to a trustee for Joseph Laffan; and the annuity was assigned by deed of December 1824, to another trustee for Joseph Laffan. Feb. 9, 11. O'S. being seized in fee of W. and possessed of a charge of £2000 affecting K. mortgaged them in 1817 to B. At the same time, certain old judgments, affecting W., were assigned B. as collate to a trustee for ral securities. In 1824, O'S. mortgaged the equity of redemption of W. to L., and other affecting the old judgments lands, subsequent to those assigned in trust for B. were assigned to a trustee for L. as collateral securities. Prior to the 1817, O'S. mortgage of confessed judgment to X. which was a prisne to the judgments assigned in trust for L. In 1825, he confessed another judg ment to Y. and Richard P. O'Shee died on the 29th of November 1827; and on the 8th of February 1828, the bill in Kirby v. O'Shee was filed by one of his judgment creditors, for the administration of his assets. To that suit, the persons claiming under the mortgages of the 1st of September 1817, and the 7th of August 1824, were made parties. A decree to account was pronounced in that suit, in the month of January 1831, whereby the Remembrancer was directed to take an account of the real and freehold tion of his asestates of R. P. O'Shee; an account of his personal estate; an account of his debts, legacies, and funeral expenses; an account of all charges died in 1827. the administra In a suit for sold, and the sets, W. was produce thereof applied in payment of the sum due to B. and part payment of the sum due to L. Those payments were made, not on foot of the mortgages of 1817, and 1824, but on foot of the collateral securities. The charge of £2000, was afterwards paid into Court; Held, That the charge of £2000 was the primary fund for payment of B's mortgage; and that not having been so applied, the money in Court was to be considered as part of the real estate, and ought to be applied accordingly. 2 R † 1841. Equity Exch. KIRBY v. O'shee. LAFFAN ข. o'shee. and incumbrances affecting the said real and freehold estates, and of what was due thereon, and whether any of them had been paid: and liberty was thereby given to Judith Brown and Joseph Laffan respectively, to prove their respective mortgages and the judgments assigned as collateral securities thereto; and in case the same were proved, the Remembrancer was to take an account of what was due on foot thereof. In 1833, the Remembrancer made his report; and thereby reported, that, "Richard P. O'Shee, died without leaving any personal property, "save the equity of redemption in the said charge of £2000, after pay"ment of the sum due on foot of the mortgage of the 1st of September "1817:" he also reported the sums due on foot of the mortgages of 1817 and 1824, and on foot of the several judgments and the annuity assigned as collateral securities thereto respectively. It further appeared from his report, that on the 11th of July 1817, Christopher Lodge recovered a judgment against R. P. O'Shee, for the sum of £, which was now vested in a person of the name of Warren in trust for J. Power; and that subsequent to the execution of the mortgage of 1824, he had also confessed judgments to several persons, and amongst others, one of Trinity Term 1825 to a person of the name of Dumphy; upon which large sums of money still remained due. On the 1st of June 1833, a final decree for a sale of the Waterford estates was pronounced, and for payment thereout of the several creditors who had proved. The charge of £2000 was then outstanding, but no notice of it was taken by that decree. The Waterford estates were afterwards sold; and out of the produce of the sale, Judith Brown was paid the sum due to her. This payment was not made on foot of the mortgage, but on foot of the prior judgments which had been assigned to her trustee; the sum reported due on foot of them being much more than the sum due to her. At the same time, all the reported incumbrances prior to the judgment of 1813, which had been assigned to a trustee for Joseph Laffan, were paid off out of the same fund; and Joseph Laffan himself was paid the residue thereof, on account of the sum reported due to him on foot of his mortgage, which exceeded the sum of £9000. This payment was made to him on foot of the judgment of 1813, and after that payment there still remained a sum of about £3900 due to him on foot of his mortgage and collateral securities. By an order made in the case of Kirby v. O'Shee, dated the 4th of December 1835, it was declared that Judith Brown, upon payment of the sum due on foot of her mortgage, was bound to assign to a trustee for the unpaid creditors in that cause, the charge of £2000; and it was referred to the Remembrancer to approve of a proper person to be such trustee, and of the deed of assignment of the said charge. Accordingly, the Remembrancer having approved of Joseph Laffan, the mortgagee and also the plaintiff in the second cause, as a proper person to be such 1841.. trustee, the charge of £2000 was, by deed of the 10th of June 1836, * The bill in the second cause was filed to raise the charge of £2000; and that sum, together with the interest thereon, amounting in the whole to the sum of £2489, having been paid into Court, it was by an order of the 26th of June 1840, transferred to the credit of both the causes; and at the same time, it was referred to the Remembrancer to ascertain and report the priorities of the plaintiff in the second cause and of the several other unpaid creditors in the cause of Kirby v. O'Shee, to that sum of £2489, having regard to the different securities under which the several creditors claimed the sums reported to be due to them, and to any equities they might have, arising out of the instruments executed to them. Pursuant to this order, the Remembrancer made his report, dated the 21st of January 1841, and reported that Judith Brown, having received satisfaction of her demand under the mortgage of 1817, out of the produce of the sale of the Waterford estates, Thomas Laffan Kelly, the executor of Joseph Laffan (who had died), was entitled to stand in her place, and was therefore entitled to have the sum of £2489 applied, so far as the same should extend, in satisfaction of the sum remaining due to him on foot of the mortgage of 1824. The sum due to Thomas Laffan Kelly on foot of the mortgage of 1824, far exceeded in amount the sum of £2489. Mr. Smith, Q. C., now moved, on behalf of Thomas L. Kelly, that the report of the Remembrancer do stand confirmed; and accordingly, that the Accountant General do draw on the Bank of Ireland, in favour of Thomas L. Kelly, or his Attorney thereto lawfully authorised, for the sum of £2758. 8s. 2d., cash now in bank to the credit of these causes, and in said report mentioned, on account of the sum reported to due to him as surviving executor of Joseph Laffan. Mr. Collins, Q. C., at the same time, moved on behalf of the executors of James Dumphy deceased, reported unpaid creditors of R. P. O'Shee deceased, that the report be sent back to be reviewed; and that the Remembrancer be directed to allocate the sum of £2758. 8s. 2d., in said report mentioned, to and amongst the several unpaid judgment creditors of R. P. O'Shee, deceased, rateably according to the amount of their respective demands, and without reference to the priority thereof. * See Kirby v. O'Shee, 1 Jo. 565. KIRBY บ. O'SHEE. 1841. KIRBY v. O'SHEE. LAFFAN บ. O'SHEE. Mr. Smith, Q. C.-The question in this case will be much simplified Equity Exch. by considering, in the first instance, what were the rights of the several parties in the life of R. P. O'Shee. If, in his lifetime, Laffan had filed a bill to redeem J. Brown's mortgage, and to foreclose his own mortgage, he would, according to the course of proceeding established in England, have been bound to offer by his bill, to redeem the prior mortgage: and as there cannot be a partial redemption of a mortgage, Titley v. Davis (a), Palk v. Clinton (b), he would have been compelled to redeem the prior mortgage in toto, both as it affected the Waterford estates, and the Kilkenny charge. But having redeemed it in toto, he then would have been entitled to stand in the place of the prior mortgagee; and neither R. P. O'Shee, nor any person deriving under him, subsequent to the mortgage of 1824, could have redeemed Laffan without paying the full amount of what was due to him on foot of both mortgages; and these rights would not have been altered by the deaths of the parties. In Ireland, Courts of Equity, instead of decreeing a redemption and foreclosure merely, decree, in ease of the mortgagor, a sale of the mortgaged premises, and payment thereout of the incumbrances affecting the property according to priority. If Laffan, in the life of R. P. O'Shee, filed a bill to foreclose his mortgage and for a sale, the Court would have decreed a sale of both the Waterford estates and the Kilkenny charge, and would have applied the produce of the Kilkenny charge, in the first instance, towards the payment of the sum due on Judith Brown's mortgage, and would have applied the purchase money of the Waterford estate in payment of the balance remaining due to J. Brown, and then in payment of Laffan's mortgage; Aldrich v. Cooper (c). If such were the rights of the parties in the lifetime of R. P. O'Shee, how can his death alter them? It is said that thereupon the Kilkenny charge became part of his personal assets; but that is a fallacy: it is not the charge itself, but the equity of redemption of the charge, which forms part of the personal assets of R. P. O'Shee; and the report is accordingly. The doctrines of the Court with respect to marshalling sureties, apply strongly to this case. The leading authority upon the subject is Aldrich v. Cooper; there Lord Eldon lays down the principle thus (d) :-" Suppose the personal "estate to be £1500, and simple contract debts to that value, and a mortgage of that amount upon freehold and copyhold estates. The "mortgagee, if he pleases, may call for payment out of the estate pledged. "It is clear, if no third persons are concerned, the Court would arrange "between the two estates, if they went to different persons. In that "case, if no third persons were concerned, and the estates were of equal |