brown case William belchier and other appellant John RENFORTH respondent that  February Mews dig ringtail see in re Russell road PurchaseMoneys lr Eq it be a  establish rule in equity that a three mortgagee have lend his money without  know there be a second mortgage upon the same estate may by pay off the first  encumbrancer and take a assignment of his interest to himself hold the estate  against the second mortgagee till he shall be pay what be due to he upon both  mortgage the principle upon which this doctrine be first establish and have  ever since prevail be that the three mortgagee have innocent lend his money  without know that the second have any claim upon the estate have in conscience  as good a right to be pay the whole money he have lend as the second mortgagee  have to the payment of what he advance and have by the assignment of the first  mortgage get a right to hold the estate absolute at law and have possession of  the title deed with brown er p out which the estate can be sell a court of  conscience ought not to take from he his legal protection of a honest debt  decree of Lord keeper Henley affirm see the case of Symmes v Symonds bro p c  vol p title encumbrance can and the note there as also Powell on mortgage vol  cap the reason assign for this preference of the three mortgagee be that by  thus obtain the legal estate he have both law and equity on his side which  supersede the more equity of the second and even Lord hale hold it right that  the three shall seize what he call the picture in shipwreck a plank in the  shipwreck and thus leave the second to perish see command c p and Mr Christian  be note there where the reasonableness and equity of this doctrine be indirect  question John butler a attorney at law be seize in fee of a piece of ground  contain three acre former two meadow situate in the parish of saint mary  Magdalen Bermondsey in the county of Surre together with several newbuilt  brick message erect thereon some time in February borrow of James pace a sum  of pound and to secure the repayment of the same by indenture of lease and  release date the that and that of February mortgage the say premise to pace on  the that of July butler pay pace all interest then due for the pound and also  pound in part of the principal and he afterward pay pace all interest for the  remain pound up to the that of February by lease and release date the d and d  of October butler mortgage the same premise to Rebecca Jarvis and Robert  Watson for secure pound and interest and he at different time afterward pay  off pound of this sum John butler afterward by indenture of lease and release  date the that of September and saint of October mortgage the same premise to  the appellant belchier and the say Edward Ironside for secure pound and  interest and by indenture date the that of November he demise the same premise  to mary butcher for year for secure pound and interest and afterward by  another indenture date brown the that of June he charge the same premise with  the payment of the further sum of pound and interest to the say mary butcher  by other indenture of lease and release date the that and that of October  butler mortgage the same premise to the respondent for secure pound and  interest and on the same day he charge the premise with the payment of a  further sum of pound and interest to the respondent and deliver to he the  complete title deed of the mortgage premise on the that of December butler die  have make his will date the that of January and thereby after direct the  payment of his just debt he give and devise the residue of all his real and  personal estate to Elizabeth butler his widow her heir executor administrator  and assign and appoint her sole executrix of his will and she duly prove the  same soon after the death of butler the respondent cause declaration in  ejectment to be deliver to the several tenant in possession of the premise in  order to recover the possession of the same and to pay and satisfy himself the  principal and interest due on his respective mortgage whereupon the appellant  belchier and the say Edward Ironside on the that of march file their bill  against the respondent and against Elizabeth butler the widow and devisee and  the say James pace Thomas pierce and mary butcher state that John butler in  September apply to the appellant belchier and Mr Ironside who be banker and  partner in London to lend he pound upon a mortgage of the aforesaid premise of  which he pretend to be seize in fee clear of all encumbrance and of which he  be in possession and receipt of the rend and profit and at the same time  produce to they several parchment and write which be as he pretend the title  deed of the say estate that butler be a attorney in who the appellant belchier  and Mr Ironside repose great confidence and who they have frequent employ in  their law business they be prevail on and do actual about the saint off  October lend he pound upon a mortgage of the say premise by indenture of lease  and release date respective the that of September and saint of October that at  the time of execute the say mortgage Mr Ironside take into his custody all the  deed and write which be produce by butler as the title deed relate to the mort  brown er p gage premise and which upon his affirmation and assurance Ironside  believe to be the title deed relate thereto that Ironside die in November have  make his will and thereof appoint the appellant belchier and Ironside executor  who duly prove the same that on the that of December butler die have make his  will to the effect before set forth that soon after butler death the appellant  belchier and Ironside apply to the say Elizabeth butler for payment of the  principal and interest due to they on their mortgage which she refuse to pay  and the appellant be inform that butler have mortgage the say premise to  diverse brown other person beside they they therefore pray by their bill that  the defendant pace pierce and butcher may several set forth their interest in  the premise together with their security and how much be due thereon and how  their debt arise and that the respondent may set forth what interest he claim  therein and that all the defendant may set forth whether they have any and  what title deed in their custody and that the mortgage premise may be sell and  the money thereby arise apply in payment of what be due to the appellant and  the other creditor who have encumbrance thereon in their just order and that  the defendant may be restrain by injunction from proceed at law for recover  possession of the premise and for general relief the respondent by his answer  insist upon his mortgage for pound and the further charge of pound and deny  that at the time of lend his money he have any notice whatsoever of the  mortgage of the appellant or any prior mortgage or encumbrance make to they or  to any other person or person of the say premise but that when he advance the  say pound and pound to butler he have reason to suppose from the production  and delivery of the title deed of the premise and the counterpart of the  tenant lease and do believe that butler have a clear title to and power to  convey and mortgage the same without be subject to any prior encumbrance the  defendant Elizabeth butler by her answer submit to the court whether she be  not entitle to dower out of the mortgage premise the defendant James pace who  be the first mortgagee by his answer state his mortgage for pound and interest  by indenture of lease and release date the that and that of February and say  that butler about the time of the execution of such indenture deliver to he  several deed or write which as he believe relate to the title of the mortgage  premise but that butler on the that of August apply to he to see the title  deed and write so leave with he and faithful promise that if the defendant  will trust he with the same he will short return they to he that butler be his  attorney in who he place great confidence and rely on his integrity and  promise he be prevail on and do about the that of August redeliver all such  deed and write to butler except the indenture of the that and that of February  and butler at the same time by a write under his hand promise to return the  same to he on demand that he several time afterward apply to butler to  redeliver such deed and butler often promise that he will return the same to  he but never do that butler on the that of February pay he all interest then  due for the pound and also pound in part so that the principal sum of pound  only with interest for the same remain due to the defendant on his say  mortgage and upon payment thereof he submit to assign his mortgage to the  brown appellant belchier and the say Edward Ironside or as they shall direct  the appellant pierce as executor of Rebecca Jarvis who survive the say Robert  Watson by his answer insist on the mortgage of the d and d October make to  Jarvis and Watson and admit that butler pay off at different time pound  principal money part of the say pound and the defendant butcher by her answer  insist on her mortgage and further charge and say that she rely on butler as a  honest man take such deed as he put into her hand for her security the cause  be at issue and diverse witness be examine on both side come on to be hear  before the Lord keeper Henley on the that of July when it be object by the  counsel for the respondent that the appellant belchier be not before the court  in his own right but only as one of the executor of Edward Ironside his  lordship be please to order that the cause shall stand over with liberty for  the appellant belchier and Ironside to amend their bill the respondent pen  this cause in order to strengthen his title and to gain brown er p a priority  pay off all principal and interest due to the defendant pace the first  mortgagee on his mortgage and by indenture of lease and release date the that  and that of December pace in consideration of pound S d convey the premise to  the respondent his heir and assign for ever subject to the proviso of  redemption contain in the indenture of release of the that of February the  appellant have amend their bill the respondent on the that of march file his  cross bill against the appellant and also against the say Elizabeth butler and  mary butcher pray that the say Elizabeth butler may come to a account with he  for the say three sum of pound pound and pound S d and all interest due or to  grow due thereon and that the same may be pay to the respondent together with  his cost by a short day to be appoint for that purpose and in default thereof  that the say Elizabeth butler may stand absolute foreclose or that the  mortgage premise may be sell and by and out of the money arise by such sale  the respondent may in the first place be pay all his principal and interest  together with his cost at law and in equity issue be join in both cause and  witness examine the same come on to be hear before the Lord keeper Henley on  the that of December when his lordship be of opinion that the respondent by  virtue of the assignment of the defendant pace mortgage be entitle to hold the  premise till satisfaction of the money due on his three several mortgage and  in both cause order and decree that it shall be refer to the master to take a  account of what be due to the respondent for principal and interest on the say  three several mortgage and to tax he his cost both at law and in equity and  the master be likewise to take a account of what be due to the several brown  other encumbrancer for principal and interest on their several mortgage and to  tax they their cost in both suit and by consent of all party his lordship  decree that the premise comprise in the several mortgage shall be sell with  the approbation of the master subject to the dower of the defendant Elizabeth  butler the widow to the best purchaser or purchaser that can be get for the  same to be allow of by the master wherein all proper party be to join as the  master shall direct and all deed and write in the custody or power of any of  the party relate to the estate in question be to be produce before the master  upon oath and it be order that the money arise by such sale shall be apply in  the first place in payment of what shall be report due to the respondent for  principal interest and cost on the say mortgage and then in payment of what  shall be report due to the several other encumbrancer for principal interest  and cost on their several mortgage accord to their priorities and it be order  that the residue of the money arise by such sale if any shall be pay to the  defendant Elizabeth butler as devisee to the say John butler from this decree  so far as it give the respondent a priority to the other mortgagee the present  appeal be bring and on behalf of the appellant it be say t jewel c York to be  a establish rule in equity that as between encumbrancer have only equitable  security that encumbrancer who security be prior in point of time shall be  prefer in payment to those who security be subsequent who prior be tempore  drinking be in jure and the reason be that neither of they have a legal title  there can be no ground for a court of equity to take from a prior encumbrancer  in favour of the subsequent encumbrancer that right which the former be  possess of before the latter become a encumbrancer in this view as matter  stand at the commencement of the original cause and when the same first come  on to be hear the appellant be entitle to be pay in preference to the  respondent that though in common and ordinary case a encumbrancer who have the  legal estate shall be prefer in payment to one who be only a equitable  encumbrancer and this not only where he original take the legal security but  also where a subsequent equitable encumbrancer have obtain a assignment of  such legal security and this even so far as to enable he to tack his equitable  encumbrance to his legal one to the prejudice of a former intervene  encumbrancer yet this hold only in case where the conscience of the party be  not affect by any circumstance of equity nor his right restrain qualify or  limit so as to prevent his gain such benefit of priority but in the present  case the defendant pace by his answer have submit to assign his legal security  to the appellant and that the estate shall brown er p be sell and all the  encumbrancer pay accord to their respective priorities after which he can not  assign his security to any subsequent encumbrancer nor can the respondent who  be a party in the brown cause and have notice of pace submission take the same  with a safe conscience to the prejudice of the plaintiff in that cause that  the defendant pace of who legal security the respondent will now avail himself  to the prejudice of other encumbrancer who security be prior to his own have  the title deed of the estate deliver to he at the time of make the mortgage  and afterward deliver the same back to the mortgagor and thereby enable he to  draw in and deceive subsequent encumbrancer which be conceive to be a  sufficient reason even to postpone pace himself though he be the first  encumbrancer and have the legal title to the subsequent innocent encumbrancer  and the respondent case be very far from be such as to put he in a better  situation than pace himself be in at the time of assign his mortgage to the  respondent on the other side it be contend W de grey S Cox that it be a  establish rule in equity that a three mortgagee have lend his money without  know of there be a second mortgage upon the same estate may by pay off the  first encumbrancer and take a assignment of his interest to himself hold the  estate against the second mortgagee till he shall be pay what be due to he  upon both the mortgage that it be near a century since this doctrine be upon  long argument and mature deliberation first settle and it have prevail ever  since without variation so that a second mortgagee when he lend his money upon  a equity of redemption know or what be the same thing in question of property  must be understand to know that his security lie open to the hazard of a  subsequent encumbrancer get into his hand a assignment of the first mortgage  and be thereby postpone and a subsequent encumbrancer confide in the notoriety  and certainty of the rule be induce to buy in the first encumbrance at a new  expense that the principle upon which this doctrine be first establish and  have ever since prevail be that the three mortgagee have innocent lend his  money without know that the second have any claim upon the estate have in  conscience as good a right to be pay the whole money he have lend as the  second mortgagee have to the payment of what he advance and have by the  assignment of the first mortgage get a right to hold the estate absolute at  law and have possession of the title deed without which the estate can be sell  a court of conscience ought not to take from he his legal protection of a  honest debt that in the present case the justice of the rule be strengthen  because the second mortgagee do not make use of the common precaution in  transaction of this nature namely take care that the title deed which be then  in the mortgagors hand be deposit with he and from which neglect two  consequence result saint that he confide more in the personal integrity of the  mortgagor than in the real security of the mortgage and d that he leave in the  hand of the mortgagor the mean of traffic again with the estate and of deceive  innocent encumbrancer who be general justify in brown presume that he who have  the possession of the land and the custody of the title deed have a right to  the estate this rule of equity look no further than to see whether the three  mortgagee have notice of the second mortgage at the time when he first lend  his money for it be then that he become a honest creditor and have a right to  protect his debt but he have no occasion to look for protection till he think  himself in danger of be hurt and therefore whether his danger be first  discover to he by the second mortgage be disclose in a suit in equity or by  any extrajudicial mean as the honesty of his debt be not affect his right of  protect it and the efficacy of that protection by buy in the first encumbrance  be not prejudice nor be in this case prejudice by the respondent have purchase  the first encumbrance after the first encumbrancer have in his answer to the  appellant bill submit to a sale of the estate and to a application of the  money in discharge the encumbrance accord to their just order and priorities  saint because the submission take in its full extent can only bind the right  of the person submit and not that of subsequent encumbrancer but the right of  protection claim by the three mortgagee be not claim or derive from the first  but arise from the personal situation of the three mortgagee as soon as he get  the legal interest in the estate and attach original in himself and d because  the submission to a sale will not have that effect though it have be make by  the three mortgagee himself and much less when make by the brown er p first  for the right of mortgagee be not alter by turn the mortgage estate into money  since in such case the court direct the money to be apply accord to the right  of redemption and if the second mortgagee have not a right to redeem the  estate without pay what be due upon the first and three mortgage he will of  course have no right to partake of the money till their claim be satisfy the  decree therefore be just and agreeable to the rule of equity and ought to be  affirm with cost accord after hear counsel on this appeal it be order and  adjudge that the same shall be dismiss and the decree therein complain of  affirm jour vol p