c giles Thornborough clerk and jane his wife daughter and heir of laurence  CLIFTON gentleman plaintiff io baker son and heir of James baker Jo nchol Esq  and jane his wife administratrix of the say James baker defendant July car S c  Charles can Eq can ab Eq can ab see S c with full note wh t l c that Edward  vol p mortgage money heir or executor who shall have it ante case and note the  question be whether the heir or executor shall have the mortgage money and  after consideration in this case resolve that the executor shall have it per  finch Lord keeper the mortgage be forfeit though it be mention that if the  mortgagor do pay c to the mortgagee his heir executor or administrator c  because the reason of the commonlaw in these case ought as near as may be to  be follow in equity now by the commonlaw if the condition or defeasance of a  mortgage of inheritance be so pen that no mention be make either of heir or  executor to who the money shall be pay in that case the money ought to go to  the executor in regard the money come first out of the personal estate and  therefore natural return thither again but if the defeasance appoint the money  to be pay either to the heir or executor there by the commonlaw if the  mortgagor pay the money precise at the day he may elect to pay either to the  heir or executor but where the precise day be pass and the mortgage forfeit  all election be go for in law there be no redemption then when the case be  reduce to a equity of redemption that redemption be not to be upon payment to  the heir or executor of the mortgagee at the election of the mortgagor for it  be against equity to revive the election for then the mortgagor freeman may  defer the payment as long as he please and at last force a composition by  payment of the money to that hand which will use he best much less can the  court elect or direct a payment where they please for a power so arbitrary may  be attend with many inconvenience there ought therefore to be a certain rule  in these case and a better can be choose than to come as near the rule and  reason of the commonlaw as may be now the law always give the money to the  executor where no person be name and where the election to pay either heir or  executor be go and forfeit in law it be all one in equity a if neither nor  executor be name and then equity ought to follow the law and give it to the  executor for in natural justice and equity the principal right of the  mortgagee be to the money and his right to the land be only a security for the  money wherefore when the security descend to the heir of the mortgagee attend  with a equity of redemption as soon as the mortgagor pay the money the land  belong to he and only the money to the mortgagee which be mere personal and so  accrue to the executor or administrator of the mortgagee and for this reason a  mortgage of inheritance to a citizen of London have be hold to be part of his  personal estate and divide accord to the custom and though it may seem hard  that the heir shall be decree to make a reconveyance without have the money  which come in lieu of the land it will not seem so to they who consider that  the land be no more than a security and that after payment of the money the  law keep a trust for the mortgagor which the heir of the mortgagee be bind to  execute and his lordship declare that the right to a sum of money which be a  personal duty ought always to be certain and not to be variable upon  circumstance wherefore his lordship do not think it material that the  administrator in this case have asset without this money for asset or not  asset be not the measure of justice to executor or administrator but serve  only as a pretence to favour the heir who either ought to have the money if  there be no asset or not to have it if there be asset and for the same reason  his lordship do not think it material that there want the circumstance of a  personal covenant ante c p note and to the reference there add Balsh v hyham p  wms cope v cope salk from the mortgagor to pay the money for though the  freeman case of the administratrix of the mortgagee have be strong with it yet  it be strong enough without it and his lordship declare that he have consider  the various precedent in this case which have be urge whereof one do not come  to the very point there be a great difference between a mortgage and a  absolute conveyancer with a collateral agreement to reconvey upon repayment of  the purchase money the other late precedent which make for the heir be  contrary to the more ancient precedent of this court and to some modern  precedent also seem to his freeman er p lordship of no weight his lordship be  of opinion that all mortgage ought to be look upon as part of the personal  estate unless the mortgagee in his lifetime or by his will do otherwise  declare or dispose of the same and thereupon his lordship decree accord