case howel versus price et e con vern pre Charles pale yellow Chan Eq can ab  pl Eq can ab pl mortgage in fee be make redeemable on payment of pound and  interest upon any Michaelmas day on six month notice mortgagor die have devise  his personal estate to his wonder personal estate be liable to pay the  mortgage a in consideration of pound make a Welsh mortgage videlicet a  conveyance in fee of pound per and in Wales under a proviso to be void if a  his heir or assign shall pay to the mortgagee or his heir pound on any  Michaelmas day give six month notice and the mortgagee to have the rend which  shall be then in arrear but there be no bind or covenant to pay the money the  mortgagor continue in possession and pay the interest during his life and by  his will give some legacy and devise the surplus of his personal estate  subject to his debt to his wife and daughter who he make executor as well to  pay his debt as to levy his debt pre Charles and die upon which the daughter  die soon after the heir bring his bill against the widow the survive executrix  peer William to compel the apply of the personal in exoneration of the real  estate sir Jos Jekyll pro quer insist that this mortgage be money borrow and a  debt of which the mortgagors pay interest be a evidence that the heir be  favour in equity ante Lingen v Sowray post Hayter v rod and Vol Edward v  countess of Warwick beyond a administrator or a executor for if a man be to  article to purchase a estate in fee and die the heir shall compel the executor  to lie out the money and shall take the land when buy and if equity will  favour the heir so far as to help he to a new estate a strong in this case  will it interpose to preserve to he the old one that the mortgagors continue  in possession show this be only a debt upon the estate and if the mortgagee  have enter and receive the profit he must have be Accountable and they will  have go towards lessen the debt nay and notwithstanding the covenant that the  mortgagee shall have the arrear of rend due on the Michaelmas day that the  money shall be pay in yet equity will not allow that but they will go towards  satisfaction of the mortgage money so if the mortgage be evict or be not of  value to pay or answer the mortgage money equity will make the mortgagor  answer the surplus beside the very loan of the money create a debt in equity  and the overvalue of the estate videlicet pound per and mortgage for pound  prove it to be so beyond all contradiction Mr Vernon content this be a  conditional sale betwixt the mortgagor and mortgagee that the mortgagee shall  have the land until the mortgagor or his heir shall pay the money but still it  be in the election of the mortgagor whether ever peer William he will pay the  money and the mortgagor be no way compellable to pay it any more than a pawner  be bind to pay the money for which the pawn be make neither will any action of  debt lie for this money I admit if the mortgage be evict or the land not of  value the mortgagee may in equity recover the money against the mortgagor but  that will be because of the fraud to at the mortgagor will in such a case be  guilty of it may be resemble to the case of a father mortgage his land salk  and vide post Evelyn v peer William er p Evelyn Vol two and die whereupon the  son enter though this be a debt and a encumbrance on the son estate when the  equity of redemption descend to he yet as it be never the son debt the son  personal estate shall not be apply in exoneration of such mortgage Lord  chancellor ask whether there have be any precedent in this case and say that  here do not appear to be any contract either express or imply for the payment  of this mortgagemoney nor be the mortgagor any way compellable in his lifetime  to pay it and if so why shall his executor that the exonerate of the real out  of the personal estate be the apply one man estate to the clear of another for  which he can see no reason say adjourn for further consideration it seem sir  Thomas powis as friend cur inform the court that where portion be charge upon  a estate in the common manner of settlement the personal estate have be decree  to exonerate the land of these portion though there never be any covenant for  the payment of they but Mr Vernon deny that he ever know of any such decree et  vide contra Edward v freeman post Vol two peer William afterward this case  come on again to be argue Lord chancellor seem to be strong of opinion that  the personal estate shall be apply in ease and exoneration of the real estate  moon october on the equity reserve after the trial of a issue that have be  direct by the court saint for that the father will have say that his executor  shall by his personal estate pay and levy his debt and if though the will be  silent on the testator die indebt the personal estate ought to be apply to pay  the debt in ease of the real estate a strong must it be so when the will be  express that all the debt shall be pay thereout dly this pound mortgage money  be a debt for so be all money borrow indeed it be a debt of a special nature  and for which there be a particular remedy the remedy in this case of a  mortgage be not by P  of mutuor at law or by bill in equity but still it be a  plain remedy videlicet by ejectment to recover the possession on default of  payment dly if in this case the mortgagee have be in possession it will not  have make it less a debt since the creditor will thereby have lead his remedy  in his own hand thly it be such a debt as the mortgagor take great care that  he his heir or assign may at any time be at liberty to pay off peer William  thly the run on of interest and its carry interest be a proof of its be a debt  and the proviso say that if the mortgagor his heir or assign shall pay the  pound and the rend or arrear of rend c in this case by the word rend be to be  understand the interest or profit of the money and what the money yield last  he say from hence it plain appear to be a debt videlicet that in case a  mortgagee die and the mortgagor come to redeem he shall pay the money to the  executor and not to the heir of the mortgagee though it be a mortgage in fee  it be money secure by and due upon land wherefore upon the whole his lordship  think it a strong case in favour of the heir and decree accord the personal  estate of a testator shall in all case be primary apply in discharge of his  personal debt or general legacy unless he by express word or manifest  intention exempt it atk atk haslewood v pope post Vol III French v Chichester  bro p c Fereyes v Robertson bunb walker v Jackson atk Bridgeman v dove atk  earl of inchiquin v French Amb and will Cox S c samwell v wake bro c c duke of  Ancaster v mayor ib yet it may be so exempt as in bampfield v Wyndham pre  Charles Wainright v Bendlowes vern and Amb S c Stapleton v Colville can tempt  Talb walker v Jackson ub sup Anderton v cook and Kynaston v Kynaston cite bro  c c holiday v Bowman cite ib web v Jones bro c c every loan create a debt from  the borrower whether there be a bind or covenant for payment or not cope v  cope salk Howell v price sup Balsh v hyham post Vol two king v king post Vol  III so it shall be although such personal debt be also secure by mortgage as  in the present case of Howell v price cope v cope ub sup Pockley v Pockley I  vern king v king post Vol III Galton v Hancock atk Robinson v gee ves earl of  Belvedere v Rochfort bro p c and Edward bro p c Philips v Philips peer William  er p bro c c so land subject to or devise for payment of debt shall be liable  to discharge such mortgage land either descend or devise Bartholomew v may I  atk marchioness of Tweedale v earl of Coventry l bro c c Even though the  mortgage land be devise express subject to the encumbrance Serle v saint eloy  post Vol so land descend shall exonerate mortgage land devise Calton v Hancock  ub sup so unincumbered land and mortgage land both be specifical devise but  express after payment of all debt shall contribute in discharge of such  mortgage carter v Barnardiston post and bro p c and Edward bro p c but in all  these case the dot be consider as the personal debt of the testator himself  the charge on the real estate be mere collateral the rule therefore be  otherwise where the charge be on the real estate principal although there be a  collateral personal security countess of Coventry v earl Coventry post Vol ill  Edward v freeman ib Wilson v earl of Darlington ib note ware v Lord Dudley bro  c c or where the debt although personal in its creation be contract original  by another cope v cope salk Bagot v oughton post leman v Newnham ves Robinson  v gee ib parson v freeman Amb lacam v Mertins ves perkyns v bayntun post Vol  note Lawson v Hudson l bro c c Shafto v Shafto post Vol h Cox note Basset v  Percival ib Cox earl of Tankerville v faucet bro c c tweddell v tweddell ib  billinghurst v walker ib with respect to the priority of application of real  asset when the personal estate be either exempt or exhaust it seem that saint  the real estate express devise for payment of debt shall be apply dly to the  extent of the specialty debt the real estate descend dly the real estate  specifical devise subject to a general charge of debt Galton v Hancock ub sup  powis v Corbet atk wride v clarke bro c c note Davies v top ib note do v Lewis  ib see Stephenson v Heathcote Eden and case cite in note p in man v Spooner  Ves Lord Alvanley state the follow to be the rule for application of estate in  payment of debt videlicet saint the general personal estate unless exempt  express or by plain implication dly any estate particular devise for the  purpose and only for the purpose of pay debt dly estate descend thly estate  specifical devise and S p per Lord Eldon Harmood v Oglander Ves Milnes v  slater ib as to marshal asset vide Clifton v burt post