Barnardiston price and seys July where a charge upon land shall not be  extinguish by its come to the same person that be entitle to the land by  reason that the party have not the same interest in the land as he have in the  charge upon it when he have not the same interest in both there shall be no  extinguishment upon this account Richard seys be indebt in his lifetime in  pound to his daughter Elizabeth for the payment of which he give her a bind  after this he make his will and devise certain land particular describe they  to trustee in the word follow that they and the survivor of they shall and may  as soon as convenient may be to the best advantage accord to their discretion  sell and dispose of all the aforesaid premise for and towards the payment of  my debt particular of three mortgage with their respective interest and for  the full discharge and payment of the say mortgagemoney and interest aforesaid  and also for the payment of all my other debt of what kind soever and of the  several portion and legacy and sum of money by I hereafter give I do hereby  give and devise all the rest of my manor lordship land tenement and  hereditament whatsoever free or customary which say customary land I have  surrender to the use of my will to any say trustee and their heir and assign  as aforesaid upon like trust and confidence that they and the survivor or  survivor of they as aforesaid by and out of the rend and profit thereof and  the fine which shall be raise by lease to be make as herein afterward be  appoint shall in aid of my personal estate raise such sum of money as shall be  sufficient to pay all the say debt portion and legacy as aforesaid and that  they do accord pay and discharge the same and after full payment and  satisfaction thereof he devise all his land be of the value of pound per Ann  to his nephew Evan seys and to the heir of his body the remainder to a  relation of his Richard seys and the heir of his body with other remainder  over and by this will bequeathe a portion of pound to Elizabeth his  Barnardiston daughter beforementioned Payable at her age of twentyone the  testator die and on his death Evan enter into the possession of the premise by  the consent of the trustee and suffer a recovery of they but by mistake land  of pound per annum be not comprise in it in a treaty of marriage be have  between Evan and Elizabeth Elizabeth at that time be but eighteen year of age  upon this occasion marriage article be enter into and by those article in  consideration of the intend marriage and of the pound portion which it be  declare by the article will be by the will of old Richard Payable to her at  her age of twentyone and likewise in consideration of the pound which be owe  to her by the bind of old Richard Evan agree to make a settlement upon her of  one three part of the land devise to he by the will of old Richard and that  the use of that settlement shall be to Evan and Elizabeth for their life and  the life of the survivor of they by way of jointure upon her and in bar of her  dower the remainder to the heir of the body of Elizabeth by Evan beget the  remainder to the right heir of Evan in fee the marriage take effect soon after  but no settlement be make in pursuance of those article however Evan make his  will and thereby devise to her for life the whole estate which be give he by  the will of old Richard but that devise to her be by the will declare to be  subject to the payment of the debt of old Richard subject to the payment of  the debt of William his father and subject to the payment of the debt contract  by himself and after her decease these land be devise to a relation of his one  seys with other remainder over of this will Elizabeth be make executrix  Barnardiston in Evan the testator die after his death Elizabeth intermarry  with Lewis price and thereupon a bill be bring by Lewis price and Elizabeth  his wife against Richard seys the young devisee in remainder by the will of  old Richard in order to have the will of Evan establish and the trust of it  carry Barnardiston er p into execution and for that purpose that there may be  a sale of such part of his estate as shall be necessary for the payment of his  debt there be likewise a cross bill bring by Richard seys against Lewis price  and his wife in order that the recovery suffer by Evan her former husband may  be set aside by reason of its be suffer by one who be bare beneficiary and  trust and consequent no good tenant to the Prcecipe these two cause come to be  hear before Lord Talbot upon the that of June and upon that occasion the court  declare that the recovery be well suffer notwithstanding that objection and  direct a account to be take of the debt and legacy that be owe and that be to  be pay under the will of old Richard and of the debt that be owe from Evan and  likewise from William his father this account be take before the master a  report be make whereby the master report the portion of pound give to  Elizabeth and the bind for pound give to her as outstanding debt to this  report exception be now take and one of they be that neither the portion nor  the bind be to be consider as outstanding debt but that the same be sink into  the estate for the benefit of Evan the devisee in the will of the testator and  thereupon a bill be file by Evan the devisee against Lewis price and his wife  in order to have the opinion of the court touch this matter and now the  exception in the former Cause and likewise this present Cause come on together  to be hear Barnardiston Mr brown argue as counsel for Evan seys and for  authority cite the case of the attorneygeneral and Barkham the that of June  Burford and plush the that of march and that of wilcocks and wilcocks and Mr  Wilbraham on the same side cite the case of Bloyss and lady Hereford in vern  and Rep on the other side be cite vern Lord chancellor say that the general  question for his consideration be whether the portion of and the bind of pound  be subsist demand or whether they be in the whole or in part satisfy and  extinguish and his lordship opinion be that such a proportionable part of  those demand be extinguish as the land comprise in the recovery bear to the  land not comprise in it it have be contend that the whole of these demand be  to be consider as satisfy with regard to Richard the young and to show this it  have be urge that under the will of old Richard these demand be liable to be  raise by the annual rend and profit in Succession as they be receive out of  the estate and that Evan enter into possession of that estate take it with  this burden upon it it have be say that the trustee may have raise this  portion and the Bonddebt of pound in this manner and that Evan by enter upon  the estate take it liable to have the money raise in the same method but his  lordship say his opinion be that this money be only liable to be raise by sale  of the estate and not by the receipt of the annual rend and profit for in the  first clause of the will of old Richard certain of the land particular  describe be devise to the trustee for the payment of debt general and for the  payment of three mortgage by sale and whenever in a devise land be direct to  be sell for a certain purpose though the rend and profit be order to be apply  Barnardiston to the same purpose yet unless there be a express clause confine  those profit to annual profit the money shall be raise only by sale and the  rend and profit shall be apply in no other way than to keep down the interest  so that with regard to this part of the case Evan have be in possession and  receive the rend and profit be no reason that upon that account the demand in  question shall be consider as satisfy with regard to Richard the remainderman  however there be another ground whereon it have be contend that a  extinguishment of these demand be make and this be by Evan marry Elizabeth and  with regard to this part of the case Elizabeth be to be consider as have two  right in her the one in her own right inasmuch as she have survive her former  husband the other in the right of her former husband as be make the  Representative of he the state of the case be in this manner here be a lady  entitle to a portion of pound Payable at her age of twentyone and likewise  entitle t a bind both of these be make Chargeable by the will of old Richard  upon his real estate this lady be about eighteen year of age marry with Evan  who be entitle to the estate subject to these demand and some other that be  upon it before Barnardiston er p the marriage Evan have suffer a recovery  whereby he make himself tenant in fee of the estate there be indeed a mistake  in describe the land in the recovery so that all of they do not pass but land  of about the value of pound per annum be not comprise in it however it be very  possible that at the time of his marriage article he think himself owner in  fee of the whole estate these article be declare to be in consideration of the  intend marriage of the portion of pound which be say in the article will be  Payable to Elizabeth at her age of twentyone and likewise in consideration of  the bind of pound upon these motive it be that he covenant to settle a three  part of the estate which he be entitle to under the will of old Richard the  use be declare to be to himself and Elizabeth and the survivor of they by way  of join Barnardiston ture and in bar of her dower the remainder to the heir of  the body of the wife by he to be beget the remainder to his own right heir in  fee after the marriage have the wife attain her age of twentyone in the life  of her husband the marriage be in and the husband die in he make his will and  thereby devise the whole estate to his wife for life and make her his  executrix a short time after his death Elizabeth intermarry with Lewis price  and they two bring a bill against Richard seys to have the will of Richard  establish and the trust of it carry into execution and among other thing to  have a sale in that Cause it be a good deal insist by price and his wife that  the demand in question be a subsist charge but these point be not determine by  the decree on the former hear have give rise to a bill to be bring by Evan  seys the devisee of the former husband of Elizabeth in order to have the  opinion of the court declare upon that point this be the state of the fact and  with regard to that right of Elizabeth wherein she insist that she be entitle  to the demand in question as survive her husband his lordship say his opinion  be that there be no ground for it in point of law it be extreme plain that if  a man marry a infant and before the marriage make a jointure upon her such  jointure will bar her of her dower the case cite by Mr Wilbraham out of the  that report be express to that purpose and as it be clear in that case that  the wife will be bar of her dower so it be clear likewise that if a settlement  have be make in the present case instead of the article this court will not  have suffer the wife to claim the benefit of the demand in question  notwithstanding she survive her late husband for the husband Evan will have be  consider as a purchaser of her portion however his lordship declare that he  say this with some distinction for if the jointure be not adequate to her  portion much more if there be any collusion between her friend and the husband  in the make of the jointure so that by that mean it be not suitable  Barnardiston to her fortune though at law the jointure in such case will bar  her of her dower yet as she will be entitle to the legal interest in these  choose in action by survive her husband a court of equity in such case will  not take from her the benefit of they and in that case she will have a equity  rebut the equity which the Representative of the husband will have upon her  however in the present case t must be admit that here be no settlement make  and only article to make one and the question be whether that will make any  difference or not now his lordship opinion be that it will not agreement to be  perform be consider in this court as perform and marriage article be consider  so more strong than any other sort of agreement as this be so it be reasonable  that these article shall be the wife of the benefit of the choose in action in  the same manner as a settlement it self will and equity in this respect as in  many other will follow the rule of law and the present case be agreeable to  the reason in the case of boyse and the lady Hereford which have be cite nay  that be a strong case than the present one for there by the marriage agreement  no express mention be make of the portion as here there S it have be say  indeed that the wife in the present case do not claim under the article but  under the will however that circumstance make no kind of difference this  objection may be answer in two light in the first place the article give her  one three and though the word of the devise give her the whole yet with regard  to that three which the article give her the devise be void and she do in fact  take that three by the article in the next place suppose she take the whole  under the devise yet as the devise come by way of satisfaction of the article  she must have the same disadvantage attend her under the devise as she will  have have attend her Barnardiston er p under the article and it will be a  strange thing to imagine that the devise of the land which he make to her  shall have any such effect as to Barnardiston revive in her a right to the  demand in question the will recite that he have suffer the recovery which have  be mention it give the estate to her subject to the debt of Richard the uncle  of William the father and of his own debt which infer a negative that she be  to have no other benefit by the will his lordship say he will now consider the  other right wherein Elizabeth claim to have the benefit of these demand namely  as she be executrix to her late husband and his opinion be that neither in  this light be she entitle to any benefit of these demand by the marriage the  husband become a purchaser of those encumbrance which be upon the estate and  in case of this kind where a person buy in encumbrance which be upon his  estate his heir whether he be the Hceres factus or the Hceres born be general  more favour than the executor in the present case by the will of old Richard  there be no term for year vest in the trustee for the raise the portion and  the money due upon the bind but the estate be devise to the trustee subject in  the first place to these and some other purpose and then it be give to Evan in  tail Evan suffer a recovery and as to so much of the land as be comprise in  that recovery he thereby become the absolute owner of the estate under the  article he become absolute owner of the portion and the bind to what purpose  will it have be for he to have keep these demand subsist shall they be  consider as subsist he must be creditor and debtor both during his lifetime  the land and the demand upon it be certain then unite and what ground be there  to say that by his death there shall become a severance I to show that there  shall be such a severance there have be indeed the case cite of Thomas and  kemish but it be very different from the present one that case depend upon a  particular reason namely that the person who be entitle to the land and the  money too be a infant and die before her age of twentyone but she be of such a  age as have the money be raise she may have dispose Barnardiston of that by  will though she can not dispose of the land so that she be not exact in the  same state and condition with regard to both those kind of estate but his  lordship say he know no case where a person be of full age and have in all  respect the same kind of interest in the land and the charge upon the land too  that the charge shall be consider as subsist for these reason his lordship say  that with regard to such part of the land as be comprise in the recovery  Elizabeth though she be executrix can have no remedy to come against those  land to have any part of the demand in question raise upon they however it be  another question whether as executrix she can have some remedy against the  land not comprise in the recovery and of which her late husband continue  tenant in tail and as to that his lordship opinion be that she may have some  remedy against they for as to those land the reason he have before go upon  cease the party have not the same kind of interest in the land and in the  charge upon it he have a limit interest in the land and a absolute interest in  the charge upon it and the present case in this respect be like that of  Saville and Saville determine by Lord Macclesfield the question there be  whether land in tail shall be consider as a satisfaction for a portion and the  court be of opinion that it shall not they go upon this reason that the party  have not the same interest in both and the case of Thomas and kemish  beforementioned fall in with the reason of this part of the case to the like  purpose be the case of Colwell and Shedwell the only question remain be how  the charge be to be proportion as to that his lordship opinion be that  Elizabeth will be entitle to raise upon the land omit in the recovery no great  part of the charge than accord to the proportion that the land omit in the  recovery bear to the land comprise in it ad so his lordship be please to  decree accord