c RIGHTSON v overton OVERINGE et all S c Eq can ab mortgage money a mortgage  in fee to b the money not be pay at the day b the mortgagee enter and lend the  mortgagor more money reinfeoffs the mortgagor proviso that if he do not pay  pound at the day that then he shall reenter b the mortgagee freeman er p die  the heir of b release the condition to a the executor of b prefer his bill  against a the mortgagor and the heir of b the mortgagee to have the money upon  a demurrer finch Lord chancellor take these rule when a man mortgage land with  a condition to be void upon payment of money at a day and neither heir nor  executor be name if the party die before the day the law construe this payment  to be make to the executor for Littleton reason because this money lend go out  of the mortgagee personal estate and thither it shall return I Inst b if the  money be limit to be pay to the mortgagee his heir or executor at such a day  more pi post c p there if the mortgagee die before the day the party have his  election if he pay it at the day but if he do not pay it at the day though it  be express limit to nobody this court give it constant to the executor for the  reason before cite freeman and though it be urge by the attorneygeneral that  here the mortgagor by the acceptance of the reinfeoffment have extinguish his  equity yet per cancellar this be original a mortgage and be continue still for  a security of money there remain still a equity for the mortgagor Mellor v  lees atk Seton v Slade Ves Howard v Harris vern see post c and p and he say if  the mortgagor have election any time after the day to pay the money either to  the heir or executor it will be very inconvenient for then he will make his  market and he that give most shall have the money and it will be a power not  fit to be leave in the breast of the chancellor to give it to one or the other  and therefore it always go to the executor it be say per cancellar that in  some case this court take notice of the civil law and that be the reason why  that if a man bequeathe a legacy to a son or a daughter pound c provide that  he or she marry with the consent of the executor c if the party marry without  the consent of the executor yet he shall have the legacy in this court and the  reason why this court decree it so be because by the civil law such a  condition annex to a legacy be void this rule if have be hold only apply to  legacy Payable out of personal estate interest arise out of land must be  govern by the rule of commonlaw   Litt in Harvey v Aston atk Lord Hardwicke c  say I hold nothing to be more fix since the case of paulet v paulet vern than  that portion charge on land will not vest till the time of payment come which  in this case be not till a marriage with consent and there be no rule of law  or equity that can excuse the want of such consent and his lordship go on to  intimate that it be only in case of mere legacy even of personalty that a  condition not to marry without consent shall be consider as in terror only but  that where the legacy be give as a portion such construction ought not to be  make see also Raynish v Martin atk Gillett v Wray p wms jervois v duke vern  post c p see however the judgement of the house of lord in bertie v Falkland  post c p note but if the bequest be that if he or she marry without the  consent of the executor I S shall have the legacy see ante c p there this  court will give no relief but I S shall have it but Mr attorney say that by  the opinion of several doctor in a case now depend the civil law see Stackpole  v Beaumont Ves Reg lib b fol though the demurrer be say in the report to have  come on before the Lord Nottingham the cause appear to have be hear before the  master of the roll on the that of April who decree that on payment of the  money due by the defendant the mortgagor to the plaintiff the executor of the  mortgagee the say plaintiff and the defendant the heir at law of the mortgagee  shall at the plaintiff charge reconvey the say mortgage premise to the  defendant the mortgagor the plaintiff to have his cost of this suit and if the  defendant the mortgagor shall not pay the principal and interest due in  respect of the say mortgage at the time to be appoint by a master of the court  then the complainant be to have the whole benefit and advantage of the  forfeiture of the mortgage premise in question in r l fol we find it declare  by the master of the roll that the cost on the be otherwise and in this case  though a remainder be limit over yet the condition be only in terror freeman  er p decree be to be pay by the defendant the mortgagor and not by the  defendant the heir at law