case cross vers powell all in scacc a convey land to b and his heir by lease  and release and by a defeasance bear date with the release agree that if he  pay borrow of b within a year that b shall reconvey to he but if he fail to  pay the money within the year then b shall mortgage or absolute sell the same  land free from redemption the money not be pay at the time b agree to convey  the estate to c and in the agreement and conveyance a exception be make and  the defeasance be mention and a question arise whether c have a absolute  estate the court determine that he have purchase a estate subject to a  redemption by a this be a bill to redeem a mortgage make by rouse to Baldwin  and by he assign to Gabriel Powel the father of John Powel the defendant and  upon the open of the bill and answer and read the deposition the case appear  to be this Robert rouse seize in fee of land in come Brecon by lease and  release date the that and the that of January convey they to John Baldwin and  his heir and by a defeasance bear date with the release and execute at the  same time it be agree that if rouse shall repay borrow of Baldwin and likewise  two other debt borrow of other person and which Baldwin take upon he to pay  off amount together to within the space of one year from the date of the  indenture then comens Baldwin shall reconvey to he but if hefailed to pay that  money within the year then Baldwin shall mortgage or absolute sell the same  land free from redemption and out of the money raise by such mortgage or sale  pay the say and interest and be Accountable for the overplus to Robert rouse  and his heir that afterward the say John rouse borrow several other sum of  money some of which be pay off by Baldwin who take several assignment of their  security in trust for himself and in particular in the year he confess a  judgement for the sum of for secure a bonddebt of that penalty to John  Ridhouse to who sir John Morgan be administrator with the will annex be his  grandson and in make a mortgage to the plaintiff for secure which mortgage be  make by lease and release date the that and the that of April but upon a trial  at law for that purpose be find not to be execute till the that of July by  article of agreement inter John Baldwin of the first part Richard knight of  the second and Gabriel Powel of the three part date the say John Baldwin agree  for to convey this estate to Gabriel Powel and his heir and to warrant the  same to he and his heir except as therein after except and covenant that he  have full power to convey except as be except and in such exception the say  defeazance be mention comens er p and afterward by indenture of lease and  release date the that and the that of march I Baldwin convey to Gabriel Powell  and his heir to the use of he and his heir and in such conveyance the say  defeazance be mention and except and Baldwin therein covenant that the sum of  be then due to he upon the say mortgage and by Henry williams deposition it  appear that at the grand session at Brecon in Wales year Ann a fine be levy of  comens the same land and tenement by Robert rouse and Susan his wife to John  Baldwin and his heir but the deed lead the use of such fine do not appear and  that r rouse be privy and consent to the say agreement make by the article  aforesaid inter John Baldwin of the first Richard knight of the second and  Gabriel Powel of the three part and that Baldwin be in possession present to a  benefice belong to that estate when it become v cant that in Gabriel Powel  exhibit a bill in this court against rouse and his wife and their daughter  James Baldwin for encumbrance assign pray to be quiet in the possession of the  say estate or if the court shall decree his estate to be redeemable that rouse  c may redeem by a short day or otherwise may be foreclose upon this rouse  exhibit a cross bill pray to redeem and Gabriel Powel by his answer to such  cross bill insist that rouse have convey to John Baldwin and his heir ut above  by lease and release in and have borrow more money and neglect to pay interest  to Baldwin and other for two year and the annual profit not answer the  interest by per annum in order to bar the wife dower without which he can not  be able to meet purchaser a fine sur conusance de law be levy at the great  session in Wales Ann upon which Baldwin take upon himself to be absolute owner  and treat with several for the absolute sale of the premise that after six  year possession the defendant Gabriel Powel treat with Baldwin for the  absolute purchase in August and agree with he to purchase the estate for and  enter into the article above and take a assignment of a mortgage to knight and  pay he and pay Baldwin and agree to pay he more that while the agreement be  write he be show the defeasance and Baldwin desire that it may be take notice  of in the article which be do on his assure he that be then due to he upon the  say estate comens that in march Baldwin convey to he and his heir by which he  think to have have a absolute estate but Baldwin act under the power in the  defeasance insist to have it mention and it be so and he fear that he may be  Accountable to rouse for the overplus above what be due to Baldwin make he  covenant that be then due to he that nine month after cotton ask if he have  pay all the money and be confess he have still in his hand which cotton advice  he to keep and not to pay but by the direction of a court of equity since  rouse have make over the overplus for the benefit of his wife and child and  show he a deed date November to that effect that on the say bill he offer to  pay the which he have still in his hand and submit whether the plaintiff in  the cross bill or Baldwin shall redeem on this case it be insist that Powel  have a absolute estate not redeemable for the estate convey to Baldwin be a  absolute estate and though there be a defeasance execute at the same time yet  that make the estate defeasable only in case the be pay within a twelvemonth  if not he be invest with a power to sell absolute free from all equity of  redemption that then it become a trust in he to sell and in case a estate be  convey to trustee to sell or devise to they to sell for payment of debt and  legacy the vendee by virtue of such sale have a absolute estate free from all  charge or power of redemption perhaps rouse may have redeem from Baldwin even  after the year but when he have give he a power and authority to sell in case  the money be not pay within the year be then become a trustee for that purpose  and his vendee will by his sale in pursuance of his power and trust have a  absolute irredeemable estate it may be resemble to the case of Bonham and  Newcomb infra p a vent where a man convey a estate to another and his heir  under a condition that if the vendor pay he at any time during his life he  shall suffer a recovery but in case of comens er p failure of payment comens  the vendee shall hold absolute to he and his heir and his heir shall not  redeem upon a bill prefer by the heir to redeem after the death of the vendor  it be hold that the estate be not redeemable and this decree be afterward  affirm in parliament second this case be the strong because Baldwin continue  six year in possession as absolute owner before he sell to Gabriel Powel and  during that time he present to a vacant benefice which if he have be only  mortgagee he ought not to have present to it because it belong to the  mortgagor to present then rouse and his wife levy a fine to he which pass  their right in it to he and make he a absolute estate and how can he afterward  be able to redeem against his own fine beside his consent be give to the  conveyance to Powel three here have pass twenty year and more since the first  mortgage make to Baldwin and it be not usual to admit a redemption after a  quiet possession for twenty year together and although it be object that  Gabriel Powel have notice of the defeasance and it be except in the conveyance  and article that be but a prurient caution as be likewise the covenant that be  due to Baldwin at the time of that conveyance since Baldwin may possible be  Accountable for the overplus if he have sell for more than what be due to he  but it be answer and resolve by the court that the estate be redeemable for  the estate convey to John Baldwin and his heir be defeasanced by a deed of the  same date be in its nature a mortgage to he and therefore though the money be  not pay within the year yet the mortgagor may still redeem upon payment of  principal and interest at any time while the estate continue in the hand of  Baldwin then though Baldwin have a power upon the nonpayment of the money  within the year to mortgage or sell in order to comens raise the money lend  and to be Accountable for the overplus it be not now to be consider what be  may have do but what he have do and it be manifest that it be not baldwin  intention to give Gabriel Powel a absolute and indefeasable estate for it be  not convey to he absolute and free from the equity of redemption but while the  article of agreement be write Baldwin show to Powel the defeasance and insist  to have it mention in the article and when the conveyance be execute in  pursuance of these article the covenant for enjoyment and for his have power  to convey be with a exception as therein mention that be subject to the  defeasance and although Powel say in his answer that he treat for the absolute  purchase yet it be evident that when Baldwin insist to have the defeasance  insert he have it so and insist to have a covenant from Baldwin that be due to  he fear as be say that he shall be Accountable for the overplus to rouse so  that this be a very different case from a trustee who be authorize by a will c  to sell for the payment of debt and legacy there be no original mortgage but  the trust be direct to sell and there be nobody to redeem for as the trust be  to sell absolute the purchaser can be subject to redemption and the heir be at  no prejudice if the purchase money be more than will satisfy the debt and  legacy be will in equity be entitle to the overplus nor can it well be  conceive if Powel have expect a absolute estate free from redemptiom by rouse  that he will not have insist that rouse shall have join in the conveyance  beside he be so conscious of have a redeemable estate that in he prefer a bill  against rouse and his wife and their daughter the now plaintiff who be heir at  law to Robert rouse Baldwin and trustee for encumbrance assign in order it be  say to be quiet in his possession but he likewise pray that if the court shall  think his estate redeemable rouse may be decree to redeem by a short day or be  comens foreclose and likewise confess that he keep of the purchase money in  his hand to secure against any demand from rouse so that this have no  resemblance to the case of Bonham and Newcomb vent above p a which be likewise  report in vern Ch can Eq Abr pl for there be no mortgage original but a  conveyance be make to one who marry his niece and on condition that he pay he  during his life he shall reconvey and his heir shall not redeem which plain  show that his comens er p intention be to prefer his niece in marriage with or  that estate at his own choice but the feoff can not compel he to pay the in  case he desire the money and all mortgage be only a pledge for security of the  money lend must be mutual in the remedy as the mortgagor have power to redeem  the mortgagee have power to insist on payment or a foreclosure but the husband  can not insist on payment of the or a foreclosure if it be not pay and upon  this foundation it be decree against the heir for Lord Nottingham consider it  as a mortgage decree a redemption notwithstanding the covenant that the heir  shall not redeem it be a know rule that if a trustee convey though upon  valuable consideration to one who have notice of the trust he be liable in  equity to the performance of the trust it be lie down among many other in the  case of Mansell v Mansell report in forester that if a estate subject to a  trust be purchase from the trustee for a valuable consideration without notice  a court of equity can affect the purchaser but they can the trustee but if  such purchaser have notice then the trust go along with the estate and the  land still continue subject to it p the Lord chancellor in the cause of  Brandlyn v Ord declare that a man who purchase for a valuable consideration  with notice of a voluntary settlement from a person who buy without notice may  shelter himself under the first purchaser provide he have the very same  interest in every respect atk if then Baldwin on nonpayment within a year  stand a trustee as be insist for rouse his vendees come in with notice of that  trust will stand in the place of Baldwin himself who be acknowledge to be  redeemable as to baldwin be in possession as owner and present to a benefice  that will not strengthen the case for Baldwin have the Le pi estate and  consequent have a right to present at law but since a presentation be  gratuitous and the mortgagee can account for any benefit from it a court of  equity will compel the mortgagee to present the nominee of the mortgagor and  although by the deposition of Mr William it appear that Mr Baldwin present it  do not appear but that he may have present at the nomination of rouse comens  and the fine between rouse and his wife and Baldwin do not vary the case for  it do not appear to what use that fine be declare and if there be no  declaration of use it result to the use of those who have the estate before it  be true if a tenant in tail make a lease not warrant by the statute and  afterward levy a fine it corroborate the estate of the lessee that be it give  he such a estate as the lessor may have make to he by fine but it do not vary  the nature of the lease which continue subject to the same reservation proviso  condition and covenant as before and if the fine be levy before any interest  vest in the lessee as where the lease be to commence in going to be and the  fine be levy before it commence it do not operate in confirmation of it so  here the fine to Baldwin may operate to strengthen his estate and free it from  the dower of the wife which can not be bar but by fine but it confirm it in  position quo it confirm it as a mortgage and do not discharge it from the  equity of redemption t oh which it be before liable for then every fine by a  mortgagor after a mortgage make will render the mortgage irredeemable as to  the length of time it be of little weight in this case for although Lord  Nottingham do rook upon the statute of limitation as a proper rule to  determine the time of redemption yet that have in many case be vary from and  no certain rule in point of time have be fix upon but here the conveyance to  Powel be in and be prefer a bill in for a foreclosure and this bill by the  plaintiff for a redemption be exhibit in so that the time of twenty year limit  for entry before a ejectment be not elapse before the bill for redemption  against Powel be exhibit comens it be therefore decree that the deputy shall  take a account of what be due to Powel for principal and interest and a  account of the rend and profit receive since the conveyance to Powel and that  the administrator of Baldwin shall account for what rend and profit be receive  by Baldwin and shall take a account of the interest due for the money advance  by he until he be pay off by Powel and that cost shall be reserve until the  account take that upon payment by cross of what shall appear due to Powel he  shall be permit to redeem or otherwise his bill shall be dismiss the case of  Manlove vers ball and Bruton report in vern appear to have be determine upon  the same principle with the present and upon bear the cause that stand next  inter sir John Morgan vers Powel all wherein sir job Morgan as heir and  administrator with the will annex to I Ridhouse his grandfather to who Robert  rouse have confess judgement in m term in he sum of be the penalty of a bind  give by rouse to he for secure which judgement be prior to the mortgage to  cross which by the verdict be find not to be execute till the that of July  though date in April it be by the consent of all party concern for cross and  Powel decree comens er p that a account shall be take of what be due on that  judgement as well as of what be due to Powel that sir I Morgan on payment of  what shall appear due to Powel shall be permit to redeem he or if be refuse  his bill shall stand dismiss and that in case sir I Morgan shall redeem Powel  cross on payment of what shall be due to sir I Morgan shall be permit to  redeem both that the party shall be examine on interrogatory and the deputy  arm with power to send for person paper record and to issue a commission to  examine witness c