AMMURST administrator of lady stride versus litton maskall and brook litton  for AMMURST maskall and brook how far a mortgage shall be subject to a  redemption canc these two be cross cause and come to be hear together at the  same time the design of each of the bill be to have two mortgage term assign  irredeemable these cause have be hear before upon two bill and then the  chancellor decree for Ammurst afterward the chancellor be of opinion for  Litton but give the counsel of the other side liberty to have a rehear which  accord be appoint for today and now the Lord chief justice and Mr justice  Barnardiston king b er p Denton be present in court the attorney general open  the case as counsel for Litton upon the petition of rehear in this manner sir  George stroude be seize of the land in question in fee and make two mortgage  for year and afterward by his will devise the land to his only son Litton  Litton in tail male remainder to stroude Bedingfield for life and to his first  and every other son in tail male so that he shall take upon he the name of  stroude and in case he shall not then to George Darnelly for life and to his  first and every other son in tail so that he shall take upon he that name the  remainder to his own right heir sir George stroude die and then his son Litton  become seize and be so seize make his will in write and order his executor to  pay off and discharge the say mortgage and upon such payment appoint the  mortgagee to assign the mortgage lease to his honour mother lady stroude for  her sole use and benefit for the remainder of the term these mortgage be one  of they for the other for and both of the same land then in the same will he  give my lady in money and in the end of the will he give all his land tenement  and hereditament both in law and equity to his son and his heir if his wife  shall happen to be with child of one and if it shall prove a daughter then he  devise to such daughter to be pay out of the rend and profit of this estate  and if he shall happen to die leave no son then he devise all the say land c  in manner aforementioned to his cousin Robinson Litton and his heir for ever  Litton Litton die soon after his make this will Barnardiston king b leave no  issue his wife not be with child stroude Bedingfield take upon he the name of  stroude stroude and after the death of Litton Litton die himself also without  issue and now the attorney say that the prayer of his bill be that upon  payment of the two several sum with interest by the executor of Litton Litton  the mortgagee may be compel to assign to Ammurst the administrator and late  husband of lady stroude but redeemable by Robinson Litton and that upon  Robinson Littons payment of the redemptionmoney to the say Ammurst the  mortgage premise may afterward be assign to he the attorney general say that  he think this prayer be find upon a natural construction of this last will but  he observe that the other side contend that the meaning be that these mortgage  shall be entire discharge and that my lady shall enjoy these term of year  absolute if she can but if it shall have happen that Litton Litton have son or  stroude stroude have male issue and either of they shall have think proper to  have redeem then at least she shall have the remainder of these term after the  determination of their several estate irredeemable by those that claim as heir  to he but the attorney observe that this be a strain construction of the will  for it be most high probable at that time that one or other of they will have  have child that some or other of they will have redeem and the estate so  redeem by they may have continue in they always at least so much be probable  that the term redeem by they will have continue in they so long as that  neither my lady stroude nor any she can have have any kindness for will have  have benefit by the contingency he then observe that as the benefit must be  think to be so very inconsiderable at that time of the will it be high  unnatural to wrest the word to so foreign a sense and he say the contingency  fall unexpected can make no difference in the construction of it but he take  notice that if the word of the will have be ever so express the construction  contend for can not prevail accord to the rule of law or equity for lady  stroude will be possess in trust and subject to the redemption of Litton  Litton and his issue male and then to stroude stroude and his male issue now  he say the provision afterward of the term to her own use and benefit must be  absolute void every mortgagee be consider as possess in trust for the  mortgagor because he be oblige to give a account of all the profit he have  receive upon tender the redemptionmoney with interest and the consequence of  this be that as my lady must therefore have be design at the time of make the  will to have be possess in trust and Accountable to these two person and the  heir of their body she can afterward have the benefit of the residue of the  interest to her own use this will be to create a perpetuity in chattel indeed  he do allow that the case in equity have go so far as to allow of a trust of a  term be give to one for life the remainder to a and the heir of his body and  if a shall happen to die Barnardiston king b er p without issue in the life of  b then to b and the heir of his body the remainder to b will Barnardiston king  b be good and that be the duke of Norfolk case vern but the very reason for  that case be because the contingency be confine to fall in the life of b or  otherwise it will not be good and that case may well be maintain because no  more person can take before b than if the limitation to b have be only after  the death of a but he say in the present case it will be no answer to say that  there be no such limitation of the term in trust for if the legal consequence  of the word must be such it be the same thing the solicitor general argue of  the other side and say that accord to the construction contend for by the  attorney the mortgage term must only be consider as give to lady stroude for  the secure to her the sum of and now Litton Litton have give her in the former  part of the will and can it be suppose likely that he shall have give her  these three distinct sum when one of will have do as well to what purpose too  be it to order the mortgage to be pay off and assign by the mortgagee to lady  stroude if the term shall equal continue encumber in her hand as they be in  the other this will be the most manifest impertinent circuity whereas the  devisor order that the mortgage shall be discharge natural and plain import  that they shall absolute be disincumbered and beside he order that the  remainder of the term shall be for the sole use and benefit of lady stroude  and if this do not import that his heir shall not have they again nothing can  and sure there be no force in the objection to say that because it may have  happen that his intent will not be able to be comply with so far as he design  that therefore it shall not be comply with so far as it can but in this case  in fact it have happen that it may be comply with in the whole and far from be  unlikely be it that his intent will be able to be comply with in the whole at  first for at the time of the devise Litton Litton have no child and stroude  stroude be not marry but he say some reliance may be make perhaps upon the  general word which give all the land tenement and hereditament which Litton  have in law or equity to Robinson and here it may be object to what purpose be  all these word put in if nothing be mean to be give but a dry reversion  expectant upon a term of year he observe that Robinson receive ample benefit  by they for he have thereby get a estate in possession in Hertfordshire of per  annum whereas this estate be but then as to the attorney second objection the  solicitor say that a mortgagee interest be by no mean to be compare to the  limitation of a trust estate for accord to that doctrine if a man estate be  settle with several of these remainder he can not mortgage it so as that the  remainderman can redeem it for then the mortgagee must be consider as possess  in trust for the mortgagor and the remainderman and there will be equal as  strong a objection against the remainderman take advantage of their trust  which the attorney call their redemption as Barnardiston king b there be  against the mortgagee in the present case have the residuary interest to his  own benefit Lord chancellor and the two judge declare their opinion upon the  first point that the meaning of the will be only to assign the mortgage as a  security for the two respective sum which the testator intend to give his  mother they think the word mortgage lease have a reference to the money which  the lease be charge to satisfy as well as to the legal interest in the lease  themselves and far observe that the word pay off and discharge may very well  refer to the discharge in the hand of the first mortgagee they take notice too  that the assignment be order to be make to the sole use and benefit of lady  stroude can not possible be understand of be entire and as to all person  irredeemable and therefore they think the natural meaning of those word be  that the term shall be assign to her to raise the money out of they and that  be a sufficient benefit the chief justice say too that as this seem to be the  obvious meaning of the word he think it not immaterial that in the last clause  of the will to Robinson Litton the word be not all other my land c which if  the devisor have intend to have give lady stroude the absolute term in all  probability will have be but all my land c which seem to imply strong that he  think he have give none before accord the court say that as they be of this  opinion as to the first point there be no occasion to say any thing to the  second salk Mod vern Barnardiston king b er p