case ELWYS against sir John thompson in chancery Michaelmas term Geo George  Hitchcock upon the marriage of his daughter with Mr Elwys give he a bind and  judgement for a thousand pound as part of his daughter fortune these be in  trust for Mr Elwys but the bind be not Payable until after the death of George  Hitchcock and mary his wife George Hitchcock afterward by his will recite that  whereas he have settle three hundred pound ayear on his wife for her jointure  and that his estate will not raise much above half that sum yearly and give  all his real estate to his wife as a satisfaction subject however to the  payment of his debt provide that if his nephew John Hitchcock will agree to  pay to his wife the yearly sum of one hundred and fifty pound and two hundred  and fifty pound in money then he shall have such estate to he and his heir  subject however to debt the nephew John agree with the widow for ninety pound  ayear and pay debt of the testator as appear by a schedule to the amount of  modern report er p fifteen hundred pound John be also heir at law to George  and mortgage not only the land of George which come to he but also his own  estate to sir John Thompson for one thousand pound who at the time have no  notice of the judgement afterward a commission of bankruptcy be take out  against John Hitchcock and his good and estate be assign over by the  commissioner to sir John Thompson the mortgagee in trust for himself and the  other creditor this bill be bring by a equitable assignee of the judgement in  order to have a satisfaction of the judgement and to discover what encumbrance  there be upon modern report the estate affect by the judgement and if any to  be let into a redemption upon payment of principal interest and cost sir John  Thompson in bar of this redemption have insist upon two thing first that if  the judgement be then upon the land yet the person entitle to it shall not  redeem it because there be land comprise in his mortgage which be not affect  by the judgement which only charge the land of George Hitchcock and not of  John Hitchcock his heir second that as no execution or recompense be have upon  this judgement before this bankruptcy such judgement shall be consider only as  a personal duty and the proprietor of it be oblige to come under the  commission along with the rest of the creditor for his proportionable share  three that the assignee under the commission be purchaser upon the land affect  by the judgement as well as the judgmentcreditor himself for they stand in the  place of John Hitchcock who be a purchaser upon the estate of George Hitchcock  as far as he have discharge any of George debt which he have do to the amount  of a thousand and five hundred pound and that in right of he the assignee have  the same equity as the judgmentcreditor himself and therefore this court will  not interpose but leave the judgmentcreditor to his remedy at law as to the  first Mr Noel argue that the judgmentcreditor may redeem sir John Thompson the  mortgagee though there be land comprise in the mortgage which be not affect by  the judgement and cite the case of Titley v Davies a Eq Abr a in the present  chancellor time three year ago Mr Titley who be a subsequent mortgagee have  not so many land contain in his mortgage as there be in a prior one to Mr  shepherd however he bring his bill to redeem he and the question be whether he  shall redeem in proportion and so the subsequent mortgagee to have benefit as  far as his land be contain in the prior mortgage and there your lordship  decree that he shall redeem the whole upon payment of principal interest and  cost as to the second objection it be argue that this judgement be not a  personal duty against the heir of the ancestor who give it and that therefore  such judgmentcreditor if he can affect the land of the ancestor specifical in  the hand of the heir be can affect the person of the heir himself nor come in  as a creditor under a commission of bankruptcy for in dyer a if a father give  a bind for one hundred pound and bind himself and his heir and die in debt  against the heir by the opinion of all the justice the plaintiff can have a  capias ad to give satisfaction against the heir modern report because it be  not his proper debt nor a elegit of other land than what descend from the  ancestor in feesimple and no good or chattel so the elegit shall be special in  this case that the judgmentcreditor come against the heir as terretenant and  not as a creditor personal to he coke S Rep a sir William Harberts case and  sir William Jones as to the three objection it be answer by the Lord  chancellor himself that there be two reason for the plaintiff to come into a  court of equity the first that he have not the legal interest in this  judgement but only a equitable assignment and therefore be can take out a  elegit the other that though the trustee have the legal interest be  coplaintiffs with he yet notwithstanding that he can succeed at law because  the deed and write be in the possession of the defendant that it be agree at  the bar that a to know facias be bring at law against John Hitchcock the heir  who plead that his ancestor be not seize and as the plaintiff modern report er  p can not prove seize for want of the write he be oblige and very proper to  fly to this court the Lord chancellor add that if the bankruptcy be out of the  case it will be very plain that this judgmentcreditor will affect the land  antecedent to this mortgage but as it be a mortgage without notice equity will  not suffer it to be disturb but will oblige the judgmentcreditor to redeem it  and the only question arise upon the intervene bankruptcy whether as the  bankruptcy have fall out before any satisfaction or remedy have upon the  judgement it be such a debt of the heir as the proprietor of it be to come in  as a personal creditor for a share under the commission or be to affect the  land Mr attorneygeneral and brown then argue for the defendant Hardwicke Lord  chancellor the defendant be not warrant in insist upon it that the plaintiff  the judgement creditor of a ancestor be to come in as a creditor under a  commission of bankruptcy against the heir if indeed this have be a bonddebt in  which the ancestor have bind his heir who have become a bankrupt there may be  some colour to charge the heir with the bonddebt as his own upon the statute  of fraudulent devise for if the heir in such case alien the land before the  process against he it make the bonddebt of his ancestor become his own proper  debt and give a action to the creditor against he for it with a express  proviso that such creditor shall not come against a purchaser good fide and if  it have be the case here that if the assignment under the commission of the  ancestor estate devise to John have be good fide so as the judgmentcreditor  may have come against the heir as for a debt due proper from he much may have  be say but the judgement be a lie upon the land itself and will have be so  even in the hand of a purchaser for a valuable consideration a strong  therefore it must be a modern report lie in the hand of assignee under a  commission of bankruptcy who stand only in the same light as the bankrupt  himself and this case be not within the statute of fraudulent devise and there  be no remedy for the judgmentcreditor to come under this commission therefore  that be out of the case and as to what have be insist on that sir John  Thompson be not only a purchaser under his mortgage which to be sure he be but  that he be a purchaser likewise as assignee under the commission as stand in  the place of John Hitchcock who be to be consider as a purchaser and if so  without notice and consequent the plaintiff be not entitle as against he to  have any remedy but after a satisfaction of everything he have purchase which  be to the amount of fifteen hundred pound be debt of the ancestor pay by the  bankrupt but there be no ground to say that John Hitchcock be a purchaser for  valuable consideration for he come only under the will of George Hitchcock his  uncle and stand in the same place that mrs Hitchcock the devisee will have be  in and suppose she have be defendant in this suit she can not have say that  she be a purchaser of this estate for a valuable consideration for he come  only under the will of George Hitchcock his uncle and stand in the same place  that mrs Hitchcock the devisee will have be in and suppose she have be  defendant in this suit she can not have say that she be a purchaser of this  estate for a valuable consideration how the three hundred pound ayear arise it  do not appear she be a devisee and there be a real estate liable to a  judgement and make subject by the testator to the payment of his debt and  after for payment of a annuity or any other charge bring upon it by the  testator will the devisee enter and pay debt of a small and main nature and  omit pay judgmentdebts which be a lie on the land he be not a purchaser  against the judgmentcreditor as to payment of those subordinate debt but be  act at his peril and the land will be still in the first place liable to the  judgement which be a matter of record that he ought to take notice of and this  be not come in for valuable consideration but it be take the estate as a  trustee under the will therefore I must decree that the plaintiff the  judgmentcreditor ought in the first place to redeem sir John Thompson mortgage  and though there be other land comprise in the mortgage which the judgement do  not affect yet as sir John Thompson insist upon his whole mortgagemoney be pay  he the redemption can be restrain and proportion to the judgmentlands but  shall be whole and entire extend to all the land but when the estate be come  into the hand of the modern report er p plaintiff the judgmentcreditor the  equity will be of a different kind for he can charge his judgement upon the  estate of the heir but he will be entitle to have all the estate of the  ancestor liable to be apply to his judgement and if there be any surplus that  must go towards satisfaction of the mortgagedebt the residue of modern report  which debt must be throw upon the estate of the heir and if there be any  surplus after payment of the judgement and mortgage that must be apply to sir  John Thompson for the benefit of the creditor of the bankrupt but the best way  will be to have the estate sell which he decree order the money arise from  such sale to the value of the land affect by the judgement to be apply to  discharge such judgement and direct the master to inquire the value of such  land and if they fall short he be to have no satisfaction out of any other of  the land and as to the rest decree as above