case Girling versus lee Eq can ab pl S c where a equity of redemption or  TrustEstate be devise for payment of debt all debt shall be pay equal  otherwise if the devise be to the executor for then the land will be legal  asset great part of the land in question have be settle on the lady Lowther  for a jointure by Mr lee her late husband father of the defendant and in the  settlement lee covenant that the land be of the annual value of pound and in  case they shall fall short of that value that his other estate shall be liable  to supply the defect thereof after the make this settlement all the other  estate of lee not comprehend Vernon chancery case er p in the say jointure be  mortgage for pound and afterward lee acknowledge a judgement to the plaintiff  who have wrought for he as his tailor and become bind with he in several bind  but the judgement be defeazanced on payment of pound lee make his will and  devise all his land for payment of debt the bill be to have the trust perform  and the plaintiff debt satisfy the defendant in his answer confess the devise  for payment of debt but set forth the jointure and covenant and the mortgage  it be insist by Mr solicitorgeneral and other of the Vernon chancery case  defendant counsel that this covenant bind the land and be precedent to the  judgement as be also the mortgage and that both these must be satisfy before  the plaintiff judgement or at least the land be in mortgage when the judgement  be acknowledge the plaintiff can come in but for a average and his proportion  in regard his judgement can not in law affect these land they be then in  mortgage so that it be a security in equity only and they insist that the  covenant for make up the jointure ought to be first satisfy it be express  charge upon the land and they cite a case where a man covenant to settle pound  per and jointure and name no land in particular yet there it be hold that the  land be bind and that even against a purchaser and that if he have afterward  acknowledge any statute or judgement yet this covenant shall be look upon as a  prior encumbrance and be so decree but it be answer by Mr Keck be of the  plaintiff counsel that true it be where a man covenant in general to settle  land of such a value and name none there all the land shall be bind vide  roundel ux v breare post vol Freemoult v Dedire p wms where a covenant to  settle land that shall be of the value of pound per annum upon his wife for  her life and no land name et per cur that covenant do not special bind any  land wherefore as touch that the wife must come in only as a specialty  creditor with the other specialty creditor so William v Lucas Cox but where a  man settle such and such land in particular for a jointure and afterward  covenant that they be of such a value there such covenant bind the person only  and not the land but this case indeed be strong and do express that the other  estate shall stand charge to make the jointure of that value but then he  observe that it be more than forty year since the jointure take place and that  in all this time there have be no demand on vide roundel ux v breare post vol  Freemoult v Dedire p wms where a covenant to settle land that shall be of the  value of pound per annum upon his wife for her life and no land name et per  cur that covenant do not special bind any land wherefore as touch that the  wife must come in only as a specialty creditor with the other specialty  creditor so William v Lucas Cox pretence of defect in the value of the  jointure and that the defendant have actual pay other debt on bind so that  these pretence carry the face of fraud with they and seem only to be set on  foot to fence against this poor man debt who have be lee tailor and bondsman  and as to the objection of average he do admit that general where land be  devise for payment of debt there all sort of security whether statute  judgement bind or simple contract debt if they do not in their own nature  affect the Vernon chancery case very land so vide roundel ux v breare post vol  Freemoult v Dedire p wms where a covenant to settle land that shall be of the  value of pound per annum upon his wife for her life and no land name et per  cur that covenant do not special bind any land wherefore as touch that the  wife must come in only as a specialty creditor with the other specialty  creditor so William v Lucas Cox devise as a judgement can if the land be then  in mortgage or the like there all debt shall be pay in proportion and by  average and so of other equitable encumbrance if land be devise to trustee for  payment of debt specialty and simple contract debt shall be pay in proportion  and though the trustee be creditor of the testator or surety for he yet they  shall not be allow to prefer themselves child v Stephens post Eq can ab pl but  then there be this difference if the devisee of the land in trust for payment  of debt be also make executor then do the land so devise become legal asset  and then debt must be pay accord to their precedency or superiority at  commonlaw the decree be so but the point be not at all discuss the plaintiff  to have his cost vide post note and so it be resolve in the case of Hixine and  Mortly seem to be Hixon and Wytham Ch can in which the decision be the  contrary as to this point but there be a question as to legacy come in equal  if land be devise to trustee for payment of debt specialty and simple contract  debt shall be pay in proportion and though the trustee be creditor of the  testator or surety for he yet they shall not be allow to prefer themselves  child v Stephens post Eq can ab pl which be respite which be agree to be law  of all side and so the law seem former to have be consider burn v best post  anon post vol greaves v Powell ibidem Cutterback v smith pre Chan Bickham v  freeman ibidem Lord Marsham v Harding bunb say vide contra levuin v okeli atk  Sanderss edit and case cite in note particular Newton v Bennett bro Ch Rep and  silk v prime cite in note there in which the case and course of this doctrine  be state and investigate and by which the law of the court appear to be now  clear otherwise and no difference where the devise be to executor only or to  executor and their heir for in both case they be equitable trustee the descent  be break and the specialty creditor have lose their fund silk v prime ub sup  vide also Blatch v wile atk and case in note there Barker v Boucher that July  et vide Hargrave v Tindall July cite Newton v Bennett ub sup where hold that  estate charge with payment of debt by will though descend be equitable asset  and apply to pay off the real encumbrance in the first place and afterward of  the other debt so Bailey v ekins Ves Shippard v lutwidge Ves clay v Willis b c  and this case be so it be decree that the land shall be sell accord to the  trust in the defendant father will for payment of debt and the plaintiff be  let in for a satisfaction of his judgement without regard have to the covenant  for make good the jointure that August sir Thomas leigh knight by his will  devise some estate to the defendant sir John Lowther and two other trustee  defendant to maintain the defendant Thomas and Woolley leigh during the life  of mary doughty and devise to the same trustee and their heir other estate by  name and all the rest of his real estate in possession or reversion in trust  to sell the same for payment of the debt he shall owe at his decease and give  to his say trustee all his personal estate to be in chief employ for the  payment of his debt and appoint the say trustee executor and the decree be  that the trustee do forthwith execute the trust and make sale of the manor c  devise to be sell by the say will and which be liable so to be and on refusal  to convey to other trustee to be sell under the direction of the master  defendant to account for the personal estate and rend and profit and the money  raise by the sale or otherwise of any of the premise subject to the devise of  the will as they have receive the same since the death of sir Thomas leigh and  what shall remain in their hand after all just allowance and what have or  shall be raise by sale of the premise that the same be apply to pay off the  real encumbrance upon the say estate in the first place but as to the  defendant the lady lowther claim of have her defect in the value of her  jointure supply out of the say land by virtue of the say covenant and her have  buy in the say mortgage the court reserve the consideration thereof and  afterward the other defendant the creditor of the say sir Thomas leigh as far  as the say estate will extend and it be further order that the defendant who  have any mortgage statute or encumbrance upon any of the say manor c shall  account for what they have receive on account they have all just allowance but  in case any of the encumbrance upon the estate have be take in no more be to  be allow in respect thereof than what be pay with the cost and charge in  respect thereof and the master be to certify what be remain just due to the  plaintiff and creditor upon the security aforesaid or any of they and to  compute the same with interest ever since it ought to have be pay and tax they  their own full cost both at law and in this court which they be to have out of  the money that have be or shall be raise out of the say estate wherein the  plaintiff and creditor after all allowance make as aforesaid be to be prefer  accord to the nature of their debt save as to the matter of the lady lowther  claim the matter whereof be reserve Reg lib a fol enter as Girling v Lowther  No account of the cause appear afterward Vernon chancery case er p