case John walley a infant per prochein any plaintiff peter walley thomas gaudy  robert warner all defendant refer to Willats v Bushy Bea v see Rowley v Gineve  Ch novembris in court Lord keeper Eq can ab pl a executor in trust for a  infant residuary legatee renew a lease part of the testator personal estate in  his own name and have mortgage it assign the equity of redemption to a trustee  to sell for payment of his own debt the trustee sell to one who have notice of  the infant title purchase set aside Francis walley the plaintiff grandfather  be among other thing possess of several message and tenement at Mileend in  Stepney in Com Middlesex for a term of year in which there be at his death  about year to come which he hold by lease from Clarehall in Cambridge and  which message be worth about pound per and over and above the rend reserve on  the lease and be so possess and of other personal estate in November he make  his last will and testament and thereby devise several legacy amount unto  about pound and then devise in these word videlicet item all the rest and  residue of my land house tenement good chattel householdstuff and plate jewel  and whatsoever else belong to I in Vernon chancery case this world as well  that which be unname as that which be name I give and bequeathe unto my love  grandchild John walley the young to wit the plaintiff and I do make my  soninlaw John walley to wit the plaintiff father executor in trust for my say  grandchild John walley afterward in the testator die and John walley the  father prove the will possess the personal estate and in march surrender the  old lease and take a new lease from Clarehall in his own name for the same  term as be unexpired of the old lease and without payment of any fine or other  consideration and have so do he mortgage part of the estate to one William for  pound which mortgage by mesne assignment be come down to the defendant Seymour  in trust for gaudy who have lend a further sum of pound on a security by way  of mortgage of the premise after this John walley the plaintiff father make a  assignment of his equity of redemption to the defendant Peter walley upon  trust to sell and dispose of the premise for payment of his debt and then go  beyond see a as a common soldier to the Indies in the service of the east  India company the defendant Warner be a see a captain and have get a sum of  money together employ one Peter a scrivener to find he out a purchase who  inform he of the estate in question and bring Peter walley the trustee and  Warner together and Warner contract with walley to purchase the premise at the  price of pound and pay off gaudy and take a assignment of his mortgage the  plaintiff bill set forth the matter ut above and charge that gaudy before he  lend his money as also Warner before he have pay any part of his consideration  money have full notice of the plaintiff title and that his father be only  executor in trust for he and therefore pray a account of profit and to be let  into possession and to have the new lease assign Vernon chancery case gaudy by  answer confess that he have notice before the lend of the money but that he be  at the same time tell that walley the grandfather die great indebt and that  his executor be in disburse pound and more for the payment of his debt and set  forth what profit he have receive during the time he be Vernon chancery case  er p in possession and that he have accept of what rest due on his mortgage  from Warner the purchaser and have thereupon assign the same unto he Marner  set forth his purchase and that he have pay off gaudy and take a assignment of  his mortgage and that he have not yet pay the residue of his purchasemoney but  have give a note for it to Peter walley the trustee where a man purchase a  estate pay part and give bind to pay the residue of the money notice of a  equitable encumbrance before payment of the money though after the bind be  sufficient Tourville v naish p wms and deny he have notice of the plaintiff  title before his purchase the defendant must deny notice at or before the  execution of the purchase deed more v Mayhow Ch can Fitzgerald v Burk atk  where it be state it shall seem by mistake that the plea be allow story v Lord  Windsor ibidem so plea to a bill that money be pay or good fide secure to be  pay be not sufficient as the money may notwithstanding never be pay Hardingham  v Nicholls atk the cause come this day to be hear and it be full prove that  Warner have notice before any of his purchasemoney be pay or deed execute and  that the will of walley be read over both to he and Peter the scrivener before  his purchase it be insist by his counsel that he ought notwithstanding to have  the benefit of Gaudys mortgage for that it be not prove in the cause that  gaudy have notice before he lend his money and though gaudy have by answer  confess notice yet that can not bind Warner the purchaser but that the  plaintiff may have examine gaudy de bene be against Warner to have prove the  notice and that gaudy be before the court the plaintiff may take a decree  against he for that money but it be answer that Warner have purchase with full  notice he stand affect with the trust and can defend himself as a innocent  purchaser and though Gaudys answer can be read against he as evidence yet if  he will mend his case on pretence that gaudy have no notice he then must stand  in Gaudys place and Gaudys confession of notice as to the title he derive from  gaudy will bind he and gaudy can transfer to Warner a better right than he  Vernon chancery case himself have and he confess he come in with notice Bovey  v smith ante pie v gorge p wms sander v Dehew post vol Bacon tract and warner  counsel then pray in regard that gaudy be a defendant before the court that  the plaintiff may take his decree against gaudy for the money pay to he by  Warner the purchaser the court decree the plaintiff shall be let into  possession and have the benefit of the new lease and a assignment thereof from  the defendant and a account of the profit for what each defendant have  respective receive during the time the say premise be in their respective  possession r l but with this that the master shall also take a account of the  personal estate of walley the plaintiff grandfather and what the plaintiff  father pay for the debt and legacy of walley more than what the other personal  estate of walley will amount unto shall be allow upon the account and Warner  shall be likewise allow what he have lie out in last improvement upon the  premise repair building or necessary improvement r l though they be make pen  the suit these word not in the register book and the say defendant gaudy be to  be allow what he have lie out on the premise r l and that Peter walley shall  deliver up to Warner the note or bill he give for the payment of the residue  of his purchasemoney and Warner be leave at liberty to bring his bill against  gaudy for the money he have pay to he on the assignment of his mortgage and  also the sum of pound and a guineapiece receive by he in part of the  purchasemoney and Peter walley the trustee be likewise to account for so much  of testator other personal estate as have come to his hand r l in the argue of  this case be cite the case of Culpepper and Aston Ch Rep Cas wherein it be  settle that where trustee be appoint to sell land for the payment of debt the  sale by they make of what be more than sufficient for the payment of debt be  not good vide ante case contra so as to legacy but the heir shall have the  surplus Randall v Bookey post vol pre Ch Starkey v brook SC anon vent p wms Q  and Culpepper v Aston agree with these case it be total misstated in the text  note in this case the plaintiff father who be the executor in trust be go to  the Indies as a common soldier in the service of the east India company a d  the plaintiff make affidavit of that matter and that he know not whether his  father be live or dead nor where to find he to serve he with process it be  upon a motion order that the plaintiff may proceed against the other defendant  without prejudice for not bring his father to hear vide heath v Percival p wms  and the plaintiff have the decree above without bring his father to hear this  do not appear in the register book Reg lib b fol Vernon chancery case er p