case brace all versus the duchess of marlborough all e contra S c p wms vern  Eq Cas aby see Whitworth v Gaugain Ph Thorpe v Holdsworth lr Eq Jennings v  jordan App Cas atherley v Barnett lt Bailey v barn Ch at the roll on a bill by  creditor a sale be decree by consent and the creditor be to be pay accord to  priority cost shall notwithstanding be pay to all in the first place here be  original and cross cause in which the creditor of sir William Gostock by a  great variety of security both as to their nature and number and Mr brace to  who and his heir sir William have convey all his land in trust to sell for  payment of his debt be the principal party and on hear these cause a order be  make that the master shall state the several security the master make his  report and the cause come to be further hear on the report the estate be  decree to be sell by consent and the master be to appoint commissioner to  inquire into the content and value of the land contain in each particular  security and the creditor be to be pay accord to their priority and the cost  be to be tax and the cause now come back for the direction of the court on the  master report the first question be as to cost whether they shall be pay to  all the party out of the estate in the first place or whether every  encumbrancer shall be pay his principal interest and cost accord to his  priority and the master of the roll think it reasonable and so decree that all  shall be pay their cost in the first mosely report er p place for though by  the decree all party be to be pay accord to their priority that be to be  understand only as to their principal and interest for this be not a decree  for a redemption in which case each encumbrancer be to be pay his principal  interest and cost in order but for a sale by consent which it be the interest  of all party to speed in sir William Gostock confess a judgement to sir  William wake afterward sir William wake get a assignment mosely report of a  mortgage of part of his estate make to lady mill by the say sir William  Gostock in there be several intervene mortgage and other security and a elder  recognizance and the other question be whether sir William wake by get this  mortgage assign to he shall be pay off the money due on the mortage and also  on the judgement before the intermediate creditor master of the roll if a  mortgagee be also a creditor by judgement or bind the heir shall not redeem  without pay off the money due on the judgement or bind to prevent circuity of  action because the heir be liable to those encumbrance after redemption the  equity be asset in his hand but he that will protect himself by take in a  prior encumbrance must be a fair purchaser without notice as a mortgagee but  here be no purchaser no particular land be in contemplation when the iudament  be acknowledge nor have the creditor by judgement any interest in the land  till a elegit execute nor can he release because he have no lie on they Chan  Cas Mr lutwych I do not remember a instance where a subsequent encumbrancer  have be protect unless he get in the first security of all and so obtain the  legal estate but here the recognizance be prior to their mortgage and shall  protect our intermediate mortgage Mr fazakerly Mr Gibbons be the first  encumbrancer by the recognizance and have also intermediate mortgage so that  this be a proper objection for he to make and if our mortgagee have bring a  ejectment against he she must have be nonsuit and can never have recover at  law but the case be different as to the other immediate encumbrancees for  suppose lady mill have bring a ejectment against any of they they can not have  set up this recognizance therefore we have a good legal demand against every  one but Mr Gibbons it be agree that if our last security be a mortgage instead  of a judgement we may take the advantage of our get in the old mortgage to be  pay both but I can see no difference between a conveyance and a encumbrance no  body lend money on the record but in consideration of the interest it carry on  the land which be so far consider that a purchaser without notice must pay a  judgement the money be lend on the security of a moiety of the land the  borrower have often nothing else and though you may take his body and mosely  report good in execution yet you may have his land also and a judgement  creditor may redeem though a bind creditor can because the equity be liable so  that now we have get the legal estate and have the same equity with the other  creditor nor be our consent to the sale any objection which be do only to  avoid the multiplicity and intricacy of suit but not to take away our benefit  of priority the money arise by the sale be in lieu of the estate and be in the  same manner Chargeable and priority in the decree must be understand of legal  priority and therefore these two security be tack together by equity be both  prior to the other master of the roll when this cause be first hear I foresee  numberless difficulty from the nature and variety of the security and the  execution of the deed of trust for the sale and therefore I think those I then  give the only direction can be follow that the master shall state the several  security and after I decree a sale by consent of all the creditor which  otherwise can not have be do and without a sale it be impossible to have make  a decree for what rule can have be set for redemption where there be so many  security and so different in their nature and all the party must have have  several day give they for redemption one after another and I think if sir  William wake claim be good he can not have the benefit of it for this decree  which be make for a sale by consent of all party the party indeed only consent  to the sale but consent to the sale be implicit consent to the decree which  include the term that the security shall be satisfy accord to their priority  which relate to the time only and therefore I decree the master schedule to be  a good adjustment of the debt at another day the master of the roll speak to  this effect a puisne judgement mosely report er p creditor get a assignment of  a prior mortgage shall he by this mean be satisfy his judgement preferable to  prior mortgage creditor intermediate between the mortgage assign and his  judgement I be the last day of opinion that he can not come at this question  for the decree by which the money be to be apply in payment of the security  accord to their priority and that that be to be understand of priority accord  to time only but I now think it just to explain if of priority in point of  satisfaction though not in time and therefore if the puisne judgement creditor  can unite his encumbrance to the mortgage he may notwithstanding this decree  and then the judgement will be a security prior in time also in respect to the  time to come though not in respect of the time pass but I can find one single  case where a judgement creditor or any other encumbrancer by buy in a  precedent mosely report mortgage be allow the preference of intervenient  security though I have look into all the authority a judgement statute or  recognizance be a general lie but see Chan Cas whereas a preference be give  only to those who have a particular interest in some land and have no notice  of the prior encumbrance when they lend their money and Ventr Chan Cas Chan  Cas vern vern be all case where mortgagee purchase in prior encumbrance and  finch quote three case in Ventr and say mortgagee and purchaser may protect  and I be determine in my opinion that encumbrancer may not from what Lord  Nottingham say in vern that there be very strong argument against mortgagee or  purchaser buy in prior security to protect themselves and that there be very  strong argument for it and that it be a very disputable point till it be  settle in the case of marsh and lee and therefore since it be a dispute point  till that case even as to mortgagee I shall not now extend it to a puisne  encumbrancer a mortgagee take particular land as his security a judgement  creditor have no particular land in view and by chance may have those land  extend for his debt which the debtor himself have not at the time he enter  into the judgement but which come to he after by purchase or descent this be a  point of consequence but here a puisne encumbrancer get in a assignment of a  prior mortgage upon which a intermediate mortgagee get in a recognizance prior  to the first mortgage and fight he at his own weapon Mr attorneygeneral I  apprehend this be a new case to endeavour to tack a puisne judgement to a  prior mortgage and be different from all the common case where one that have a  puisne encumbrance never claim the protection of a prior but where he take  some estate or interest in particular land a mortgagee have a estate in  particular land or rely on they for a security therefore if he can get in a  prior encumbrance which give he a legal estate in the land he shall have the  benefit of both he that accept a judgement have no estate in the land or any  interest in particular land till the elegit be execute by suit indeed it may  turn to a particular interest but so may likewise a debt by bind but this  judgement be never extend nor do the cognisor do any act to deceive the  cognisee as the mortgagor do to deceive the mortgagee for the mortgagee be  deceive because be think that by lend his money he gain a estate in the  particular land whereas it do not appear whether he who lend on a judgement  lend on the real or personal security for he may use it either way or that he  be any way deceive or make to believe he have a better security than he find  and where a man borrow money on a mosely report judgement he never covenant  that his land be free from all encumbrance beside if the defendant will have  have this advantage he shall have make a case of it in his answer and express  deny notice or at least shall have insist on it before the master but in his  objection to the report he only say that he ought to have his money on the  judgement as well as the mortgage but give no reason whereas he ought  particular to have set forth that he lend his money without notice so that to  decree for he will be to decree for he whether he have notice or not so that  he have not do what be necessary even in the most favourable case of purchaser  a small matter will have prove notice of those encumbrance from to and  priority in the decree can be only mean as to time there be nothing then  appear to guide the court in their decree but what arise in point of time none  of these dispute be then start Mr solicitor general the common case be a hard  one that a intermediate mortgage shall be defeat by the act of the mortgagor  and mortgagee on a bill to redeem or foreclose he that be prior in  satisfaction may be decree to be pay first mosely report er p though his  security be puisne in time but then he must make a case for the hear and  insist upon it that the second mortgagee shall not be allow to redeem without  pay off both the first and three mortgage but to unite these security he must  go still further he must deny notice and set forth that he lend his money  innocent and if he can prove these fact the second mortgagee must pay off both  but then here be a case make for the judgement of the court and the decree  mention the particular term of the redemption but it will open a way to the  great fraud if a puisne encumbrancer may protect himself by buy in a prior  mortgage whether he have notice or not of the intermediate security when he  lend his money and will be as great a fraud in he as in the mortgagor so that  the point of notice be the chief point and make it a fraud or not and all the  case I have meet with be of mortgagee who have lend their money innocent and  without notice there if they can get the legal estate the court will not take  it from they till they be full satisfy a mortgagee be a redeemable purchaser  but do a judgement creditor ever plead himself a purchaser without notice do  he ever inquire into the title of the land or lie the deed before council or  do he contract for any land beside what they now insist on be not warrant by  the plead in the cause or by the decree and therefore the court will not aid  they to the prejudice of the intermediate security who lend their money on the  credit of the land themselves mosely report Mr lutwych if they have not make  such a case all their mooting be nothing to the purpose if a creditor will  have a equity contrary to the common rule which be that he which be first in  time must be first satisfy he must make a case of it to be put in issue and  support by proof he must deny notice of all the mesne encumbrance when he lend  his money on the puisne security this cause come to a hear and a sale be  decree without any notice of this preference because it be never make a case  on the plead or put in issue and therefore they be not at liberty to insist on  it now or if they be the law be against they the judgement creditor have by  the elegit a right to half the land and therefore he will fix his claim on  these land in mortgage whereas the land be to be extend by the sheriff and a  moiety to be deliver by he but the creditor have no particular right to the  land in mortgage by virtue of his judgement nor certainty that he ever shall  for the sheriff be not bind to deliver he the mortgage land or any part of  they as his moiety master of the roll they be too late if the law be with they  they insist indeed by their answer to be pay off all their security but go no  further at the hear a order be make that the master shall state the several  encumbrance and that he may state any thing special they may then have make  this case before the master the master make his report and then a sale be  decree then indeed they set out their reason particular before the master but  omit the most material point to deny notice and there be no reason to send  they back and to break the rule of the court especial when the merit seem  clear against they for though a puisne mortgagee may I think a puisne  encumbrancer can avail himself of a prior mortgage and the attorneygeneral  argument be very strong that a puisne judgement creditor be not deceive though  there be never so many prior security he never ask what encumbrance be on the  land but have a lie on the person and good the debtor be not a deceiver nor be  the other deceive the mortgagor that mortgage his land twice over be a  deceiver and be condemned as such by parliament and be deprive thereb of his  equity of redemption his offer to mortgage the land import he have not make a  prior mortgage but if he confess a judgement that be no implicit assertion  that he have not make a mortgage but his have make prior mortgage on several  part of his estate may be the reason why he give a judgement as a lie on the  particular part not in mortgage or on the equity of redemption there be a  great difference where the money be first lend on a mortgage and the mortgagee  mortgage the land mosely report a second time and then confess a judgement to  the first mortgagee for here be a deceit the prior mortgage have put the  estate in his hand and when he lend on the judgement he depend on the equity  stand as it do when he lend the first money therefore I decree the creditor to  come in accord to the report mosely report er p