brown case Charles DYMOKE and another Appellants sir John Hobart a  infant Respondent that November Mews dig v a tenant for life and b a mortgagee  not in possession sell the next presentation to a church to c who take a  covenant from a that if he can present she her executor c shall repay he the  purchase money this grant be void as against the remainder man and the  purchaser shall recover his money from the administrator of the tenant for  life by a act of parliament pass in the manor of Clifton in the county of buck  to which the advowson of the church of Clifton be appendant be settle on dame  Elizabeth Hobart the respondent mother for life with remainder to the  respondent in tail with diverse remainder over subject to the payment of and  interest to sir William Rawlinson for secure which payment the say manor c be  thereby vest in sir William for year but to be void on payment of the  principal money and interest on the that of march with power for he to sell a  competent part of the premise if the money shall not be pay at that time the  mortgage money be not pay at the time limit by the act and the appellant be  desirous of purchase the next presentation to the church of Clifton employ Mr  sergeant Selby and one Mr Kendal to negotiate that purchase who have agree  with lady Hobart and sir William Rawlinson for guinea as the price they by  deed date the that of October in consideration of that sum pay to lady Hobart  grant the next presentation to Mr sergeant Selby and Mr Kendal who be thereby  express empower to present whenever brown er p the church shall become void  but as lady Hobart be only tenant for life under the act of parliament there  be a covenant insert in this deed that if she shall happen to die before the  church become void so that the grantee can not present then her heir executor  or administrator shall pay to they S within three month after her death the  mortgage to sir William Rawlinson be afterward pay off he assign the year term  to a trustee and covenant that he have do no act to encumber in September lady  Hobart die whereby the manor and advowson come to the respondent under the  limitation of the act in April the church become void and Mr Kendal have  previous release all his interest under the above grant to sergeant Selby he  at the appellant nomination present a clerk to the church whereupon the  respondent by his next friend exhibit his bill in the court of chancery  against the appellant and the sergeant and also against the administrator  brown of lady Hobart to prevent the admission and institution of the presentee  on the that of may the cause be hear before the Lord keeper wright who decree  that the defendant sergeant Selby in who the legal estate be vest shall  present such person to the church as the plaintiff shall appoint and that the  administrator of lady Hobart shall repay to the say defendant the say sum of S  but without interest from this decree the defendant Dymoke and sergeant Selby  appeal insist f page that the appellant Dymokes trustee have a legal title  which can not be impeach in equity for that the contract be fair and equal and  make with those who have power to make a absolute sale and therefore it differ  from the case of a common mortgagee who can not make any such sale that it be  not in the power of the appellant to recover the purchase money because the  covenant be conditional videlicet if the trustee can not present but which he  can and must do whether the decree stand or not and therefore it will be  against common justice to make the contract bind on one side only and to  punish the appellant Dymoke who have do no wrong not only with the loss of his  presentation but of the interest of his money and his cost of the suit that  the dissolve the contract by the decree be a damage even to the respondent  because the guinea and interest be a discharge pro tanto of the encumbrance  upon the estate and which as the decree stand he be to repay though he can not  sell the presentation that there want proper party to the bill namely the  person in remainder who estate in case of the respondent death without issue  will be clog with the payment of this money without their privity or consent  that the voluntary payment of this money by the respondent after the church  become void will have be direct simony and the decree as to the reason of it  do not alter the case but if the decree be reverse the appellant will have the  benefit of his contract and the respondent of the purchase money and thus  justice will be do to all party on the other side it be contend t Vernon that  lady Hobart be only tenant for life can not by any grant of she bind or  prejudice the respondent her son that sir William Rawlinson be only a  mortgagee out of possession and have no interest but bare as a security for  his money which be in fact pay he before the church become void and it will be  a very great mischief to countenance a grant by a mortgagee out of possession  to strip the mortgagor or his heir of a right to present to any church that be  within the mortgage that both sergeant Selby and Mr Kendal know that lady  Hobart be only tenant for life and that sir William Rawlinson be only a  mortgagee out of possession and therefore they take her ladyship covenant for  the repayment of the money in case she shall die before the church become void  and as the decree have direct the repayment of this money out of her estate  nobody be injure brown accord after hear counsel on this appeal it be order  and adjudge that the petition and appeal shall be dismiss and the decree  therein complain of affirm and that the appellant shall pay to the respondent  or his guardian for his use the sum of for his cost jour vol p brown er p