atkins case Benson v baldwin the original bill be bring to ascertain what land  be charge with certain rend when it be refer to the master to inquire what  land be so charge Reg lib a fol a order be make upon the master report and his  lordship now reverse that order and direct the master to review his report Reg  lib a fol may the that a bill may be bring for rend in this court where the  remedy at law be lose or become very difficult and this court will relieve on  the foundation of payment for a length of time Lord chancellor where a man be  entitle to a rend out of land and through process of time the remedy at law be  lose or become very difficult this court have interfere and give relief upon  the foundation only of payment of the rend for a long time which bill be call  bill find upon the to use nay the court have go so far as to give relief where  the nature of the rend as there be many kind at law have not be know so as to  be set forth but then all the terretenants of the land out of which the rend  issue must be bring before the court in order for the court to make a complete  decree see Thorndike v Allington Charles can collet v Jaques Charles can Davy  v Davy Charles can Cox v Foley vern north v Strafford p W holder v Chambury p  W duke of Leeds v Powel Ves duke of Bridgewater v Edward bro p c Bouverie v  apprentice bro Charles Rep duke of Leeds v new Radnor bro Charles Rep atkins  atkins atkins atkins see prefatory note Casborne v scarf Atkins er report date  atkins case Elizabeth and mary CASBORNE plaintiff Elizabeth scarf and  alexander inglis defendant Hilary vacation SC wh t l c that ed SeeHeath v pugh  Q b d SC Eq Cas Abr pl SC vin Abr pl a seize in fee of a freehold estate  mortgage it and afterward intermarries with b a die and the mortgage be not  redeem during the coverture this be notwithstanding such a seize in the wife  as entitle the husband to be tenant by the courtesy of the mortgage premise  for in this court the land be consider only as a pledge or security for the  money and do not alter the possession of the mortgagor the father of the  plaintiff devise to whether his daughter the plaintiff old sister all his  estate freehold and copyhold in fee charge with apiece to the plaintiff  whether after her father death possess the several estate and afterward  intermarry with the defendant inglis and soon after die leave issue a son who  die a infant and without issue upon who death the plaintiff as heir at law  both to the infant and their sister become entitle to the real estate whether  inglis before her marriage mortgage part of the freehold premise to the  defendant scarf in fee for pound the bill be bring against the mortgagee and  the husband for a account and for the direction of the court the defendant  Alexander inglis insist that have have issue by his wife he atkins er p be  entitle to a estate for life as tenant by the courtesy in his late wife  freehold premise subject to the mortgage of the defendant scarf on the that of  may the master of the roll sir Joseph Jekyll on hear the cause be of opinion  the defendant inglis be not entitle to a tenancy by the courtesy in the estate  comprise in the mortgage Reg lib a fol the defendant appeal from this decree  to Lord chancellor and the cause come on before his lordship on the that of  January and that of march for the plaintiff it be insist the equity of  redemption be no actual estate or interest in the wife but only a power in r  to reduce the estate into her possession again by pay off the mortgage it be  compare to the case of a proviso for a reentry in a conveyance and no reentry  ever make and to a condition break and no advantage ever take thereof that the  wife be never seize in fee in law because the legal estate be out of her by  virtue of the mortgage but have only a bare possession and be in receipt of  the rend and profit so that the mortgagor have mere a right of action or a  suit in a court of equity in order that the estate may be reconvey to her upon  comply with the term in the mortgage that it be the laches of the husband he  do not pay off the mortgage money which will have revested the estate in the  wife but not have do that there be no more reason that he shall be a tenant by  the courtesy here than that he shall have the benefit of a seize in law in the  wife which he can have for there must be a actual seize for the word of Lord  coke in his comment upon the sect of Littleton be a man shall not atkins be  tenant by the courtesy of a bare right title use or of a reversion or a  remainder expectant upon any estate of freehold unless the particular estate  be determine or end during the coverture it be likewise say if it be consider  as a interest it be mere a contingent one as it be uncertain whether the  mortgagor will ever take back the estate again for it be entire at her  election and suppose it to be mortgage to the value though she have a right to  redeem yet she be under no obligation to do it and it do not appear in this  case the wife ever intend it and if the law shall cast the estate on the  husband he by never pay the interest during his life may load the inheritance  in such a manner that it will never be of any benefit to the heir the attorney  general cite the case of Penville v Luscombe SC cite vin at the roll the that  of February where the master of the roll sir Joseph Jekyll be strong incline  to think there can be no possespound brother of a equity of redemption he  likewise cite the case of Reynolds v Messing at the roll the that of February  sir Joseph Jekyll where it be hold a wife be not dowable of a equity of  redemption in the case of a mortgage in fee this case be say to be  misrepresent and do not warrant the point here say to be determine by it bro  Charles Rep see Godwin v Winsmore post vol and in the case of Robinson v  tongue Michaelmas term Lord chancellor king be of the same opinion vin pl S c  Mr fazakerley e contra insist that the husband pay off the mortgage will have  be buy what the law give he as a tenant by the courtesy that though at law a  mortgage in fee be a revocation of a will yet in a court of equity it be  otherwise and here a mortgagor be consider as have still the ownership of the  estate which be only a pledge or security for the money of the mortgagee  without make any alteration in the property for the estate retain all its  former quality as any other not in mortgage that the argument ab in agreement  fall to the ground for as a tenant for life he will be oblige to keep downthe  interest during life so that there be no danger of his injure the inheritance  that there be a difference between a tenant by the courtesy and a tenant in  dower with regard to a trust for there may be a tenancy by the courtesy of a  trust though a woman be not endowable of it but what be the ground of this  distinction he will not take upon he to say for as both by the decree of this  court and in the house of lord it have be so determine without give any reason  he will not presume to off er any vern and that in the case of Penville v  Luscombe nothing be therein determine by the master of the roll who be very  doubIful in the principal point but Mr fazakerley say he have a note of a case  with the same name determine by Lord Cowper in who hold direct the contrary  that there may be a possespound brother of a equity of redemption and if so  the rule of be able sequitur law in case of property be atkins er p certain  the best guide and if this court upon nicety shall relax this rule it will be  a precedent to dispense with it in other case atkins he say it be a reed the  principal point have never be determine though it be at the same time admit  there be many case where after a recovery at law either of dower or tenancy by  the courtesy a trust term have be lie out of the way for the benefit of  dowress g Mr Murray of the same side say the statute of use interpose only  between a beneficiary and trust and his own feoff strict speak that in this  court the beneficiary and trust be consider as the owner of the land and the  trustee like the conusee of a fine only the mere instrument and no more that  the case of lady Radnor v Vandebendy show parliament Cas be affirm in the  house of lord for this reason because all conveyancers have insist that where  there be a trust term it may be safe purchase without any danger of dower and  be one reason for the distinction between a dowress and a tenancy by the  courtesy that a mortgage in fee be no more than a charge upon the land and  that in the case of tabor v Grover vern it be hold a mortgage in fee though  two descent cast and though more be due upon it than the value and though the  mortgagor by his answer say he will not redeem shall go to the executor and  not to the heir of the mortgagee the equity of redemption not be foreclose or  release the several case follow be likewise cite by the defendant counsel vern  hall v Dunch vern amhurst v Dowling and stride v lady Russel vern and lady  William v Wray   and paulet and the attorneygeneral hard after the point have  be argue on both side Lord chancellor declare his surprise that this matter as  it seem a case which must frequent happen shall never have be bring before the  court till now and as it be a question of great consequence and general  concern shall take time to give his opinion on the that of march the cause  stand for judgement Lord chancellor this question depend on two consideration  first what sort of interest a equity of redemption be consider to be in this  court second what be requisite to entitle the husband to be tenant by the  courtesy first a equity of redemption have always be consider as a estate in  the land for it may be devise grant or entail with remainder and such entail  and remainder may be bar by a fine and recovery and therefore can be consider  as a mere right only but such a estate whereof there may be a seize the person  therefore entitle to the equity of redemption be consider as the owner of the  land and a mortgage in fee be consider as personal asset by a devise of all  land tenement and hereditament a mortgage in fee shall not pass unless the  equity of redemption atkins be foreclose and if after such devise make a  foreclosure be have yet such estate shall not pass by those general word of  land tenement and hereditament because a foreclosure be consider as a new  purchase of the land the interest of the land must be some where and can be in  abeyance but it be not in the mortgagee and therefore must remain in the  mortgagor a devise his estate and after make a mortgage in fee though that be  a total revocation in law yet in this court it be a revocation pro tanto only  York v stone salk Perkins v walker vern hall v Dunch vern duke of Bridgewater  v Bolton Lord ray rider v wager p W parson v freeman post vol it be certain  the mortgagee be not bare a trustee to the mortgagor but to some purpose  videlicet with regard to the inheritance he certain be till a foreclosure see  hard vern second at commonlaw four thing be necessary to entitle the husband  to the tenancy by the courtesy marriage issue death of the wife seize in fact  in this case the three first concur but it be object that here be no seize  whatever of the legal estate in the wife in the consideration of the law but  that be not the present question the true question be if there be such seize  or possession of the equitable estate in the wife as in this court be consider  as equivalent to a actual seize of a freehold estate at commonlaw and I be of  opinion there be actual possession cloth with the receipt of the rend and  profit be the high instance of a equitable seize both of which there be in  this case and that a husband shall be tenant by the courtesy of the equitable  estate of the wife so Watts v ball p W chaplin v chaplin p W have be often  determine as in Sweetapple v bindon vern which be a much strong case than this  for in that case atkins er p there be neither seize nor land and in vern it be  hold that land article for only will pass by a will the principal objection be  two first Laches and neglect in the husband by not pay off the mortgage second  that the rule ought to be equal between dower and courtesy and that dower can  be of a trust estate as to the first it be not similar to the case of laches  in the husband videlicet as in a case where entry be requisite because it be  nothing near so easy to pay off a mortgage as to make a entry and it hold  equal strong in the case of a trust estate for a husband may more easy get a  decree for his trustee to convey than a decree to redeem a mortgage which be  necessary attend with many delay the second objection prove too much if any  thing and entire fail by the precedent of this court if any innovation be to  be make I be of opinion the near way to right will be to let in the wife to  dower of a trust estate and not to exclude the husband from be tenant by the  courtesy of it and there can be no inconvenience to the heir at law for will  have the same remedy in this court to make a tenant by the courtesy keep down  the interest as against any other tenant for life for these reason I be of  opinion the defendant be entitle to be tenant by the courtesy and the decree  at the roll as to this part must be reverse Reg lib a fol atkins er p this  rule as lie down here by Lord Hardwicke and by the report of the two cage of  Wynn v Littleton vern and Litton v Russell vern deserve some consideration it  be a point which frequent occur in the practice of a conveyancer the question  be whether we must understand his lordship meaning to be that the general  devise of all land tenement and hereditament will neither pass the legal nor  beneficial estate of mortgagee in fee after forfeiture or whether those word  be only incompetent to pass the beneficial interest if the latter the rule  general speak be certain right because the beneficial interest be in fact  nothing but the money due on the mortgage and the land mortgage be consider in  equity mere as a security for a personal debt it be very evident that such  personal or beneficial interest can pass by word peculiar adapt to transfer  real property unless in some particular instance as where the testator have  have no other land than those mortgage to he in which case the manifest  intention will hold against the general construction see clarke v abbot barn  Charles Rep but I take it that there be a very obvious distinction between the  legal estate of a mortgagee in fee after forfeiture and his beneficial  interest as to the operation of a devise the latter will certain pass by a  residuary bequest of all his personal estate yet it be clear that the former  will not which if not vest in some particular person by the will will in such  case descend to the heir at law of the testator as a trustee for the devisee  of the personal estate vide attorney general Meyrick Ves and the decree in win  v Littleton cite infra but as the mortgagee be consider as to the legal estate  and inheritance mere as a trustee vide post vern if he shall devise all and  every his real estate to a and his heir this will accord to the determination  in Marlow v smith p W pass the legal estate and if he shall likewise bequeathe  all his personal estate to b this will pass the mortgage debt and a will  thereby become a trustee for b the reason in Marlow v smith be that the legal  estate be in the trustee it be in the eye of the law his estate and his  property and therefore pass by a devise of his estate if then there be a  settle distinction between the legal and beneficial interest of a mortgagee  and if the word real estate will pass such legal estate why will not the  general devise of land tenement and hereditament have that effect when  unconnected with circumstance indicative of the testator intention to exclude  such a construction the word hereditament must I think be as operative as the  word real estate the former be expressive of the latter it be say in sir  Thomas Littleton case vent that if a man have land in fee and other land  mortgage to he in fee by a devise of all his land the mortgage will pass the  case ex part bow that July seem to confirm the above observation in their  utmost extent there one thurland mortgage the reversion of the manor of  Bigging and Tamworth and diverse land and hereditament in the county of Surre  to Henry may in fee who by his will devise all his manor farm land tenement  hereditament and real estate in Sussex ken and Middlesex and elsewhere in  England in possession reversion or otherwise to certain use which now vest a  estate tail in Thomas knight a infant with remainder over the mortgage money  be pay to the executor of may but the legal estate have not be reconvey the  question now be whether the legal estate of the mortgage land be vest by  virtue of the above devise in Thomas knight the infant and if so whether he  can convey by recovery pursuant to the stat Ann Lord Hardwicke decree the  infant to convey the leg l estate and it appear under the devise in the will  of the say Henry may that the say Thomas knight the infant be tenant in tail  with remainder over it be order that all proper party be to concur in all  necessary act for the infant suffer a common recovery in order to make the  conveyance effectual Reg lib a fol it be very clear that the testator in the  above case can not intend to create a estate tail in the legal estate of the  mortgage land and yet Lord Hardwicke think that the legal operation of the  devise ought to hold against the intent as to the case of win v Littleton  which as report in Vernon be usual cite as a authority to the contrary it  appear from the register book b fol that it be decree that lady Littleton the  administratrix be entitle to the mortgage in question as part of the testator  personal estate and the decree direct that upon payment of principal and  interest by the mortgagor who have bring a cross bill to redeem the say dame  whether Littleton and the plaintiff sir John win do convey and assure to the  say Mr prior and his heir all their title estate and interest in and to the  say mortgage premise as the decree direct sir John win to be a party in the  reconveyance it be clear that he be suppose to have the legal estate in he  because the decree previous declare he have no beneficial interest by the  devise now the register book do not mention whether he be heir at law to the  testator but mere that he be the testator near kinsman while administration be  grant to lady Littleton as next of kin the doubt therefore still remain  whether the legal estate vest in sir John win as heir at law or as devisee if  as devisee and which I apprehend to be the case then the above observation be  establish in their full exCent if as heir at law it show that the legal estate  do not even in equity necessary follow the beneficial interest and pass as  personal property to the executor or administrator but require certain  technical word peculiar adapt to the transfer of real property in order to  pass it it be observable too in the above case of win v Littleton that the  testator have make a charge upon the land devise which rather seem to show  that those mortgage be not intend to be the subject of the devise with respect  to the case of Litton v Russell it can afford no argument on either side of  the question for the decree in that case as it be state in the register book  take no notice of any mortgage except those whereof the testator have after  the make his will purchase the equity of redemption indeed it appear from the  bill and answer that there be only one other mortgage which be of a copyhold  estate not surrender to the use of the testator will Reg lib b fol