CASBURNE and inglis et all in chancery where a woman mortgagor marry and not  have redeem die her husband be entitle to be tenant by courtesy of the  mortgage premise a equity of redemption be a estate in the land foreclosure of  a equity of redemption be consider as a new purchase of the land although a  mortgage in fee after a devise of the estate be in law a total revocation yet  in equity it be a revocation pro tanto a husband shall be tenant by the  courtesy of the equitable estate of the wife and the heir at law may oblige he  like any other tenant for life to keep down interest Abr pl Eq Cas Abr pl atk  Rep pl S c post termini hill geo twentyfifth of march at the day of cause by  consent Lord chancellor Hardwicke deliver his opinion in this cause whether  Casburne be seize in fee do before her marriage borrow pound of the defendant  scar and by the lease and release to case tempt Hardwicke secure the payment  thereof she mortgage the land in question to the defendant scar in fee subject  to redemption August the say a Casburne marry the defendant inglis and die on  the that of Nov leave issue by he a son who die without issue and upon his  death the plaintiff Elizabeth and mary Casburne who be sister to the say Ann  be his heir at law in Trinity term the two plaintiff the sister file their  bill against the mortgagee and against the defendant inglis to have liberty to  redeem and to have a account of the rend of the real estate descend to the son  they be his heir at law defendant inglis by his answer insist that he be  tenant by the courtesy the cause be beard before the master of the roll who  decree that the defendant inglis be not entitle to be tenant by the courtesy  and that he shall account for the rend and profit from the death of the son  from which decree the defendant have now appeal and the question hereupon be  whether a husband can be tenant by the courtesy of a equity of redemption upon  a mortgage in fee this question depend upon two consideration be it what kind  of interest a equity of redemption be in the eye of this court dly what be  necessary to entitle a husband to be a tenant by the courtesy of a equitable  interest in land as to the first consideration a equity of redemption have be  consider as a estate in the land such a interest as to descend from ancestor  to heir such a interest as may be grant devise entail and the entail bar by a  common recovery c this prove that it be not a mere right but that it be such a  estate as that in the consideration of this court there may be a seize of it  for otherwise a devise thereof can not be good the person who have it be  consider as the owner of the land and the mortgagee to retain it only as a  pledge and therefore even a mortgage in fee be consider as personal effect  notwithstanding the legal estate be in the heir of the mortgagee neither will  the mortgagee of such a mortgagee be case tempt Hardwicke tenant by the  courtesy unless the mortgage be foreclose for then the land be no long a  pledge only to the mortgagee and such a mortgage will not pass by a general  devise of all land and tenement as be determine in the case of sir l stride  against lady Russell and other Vernon upon the position here advance Mr sander  I atk n have write a elaborate note the scope of which be to show that if it  be to be understand that a general devise of all land and tenement will not  pass the legal estate of mortgagee in fee after forfeiture the position be  questionable if that such a devise will not pass the beneficial interest the  position general speak be certain right Mr sander cite principal p wms atk  vern and vent and if so it show that a release of the equity of redemption or  a foreclosure thereof be consider in a case tempt Hardwicke er p court of  equity as a new purchase of the real estate in the land and that the mortgagor  be consider as have the real estate until then upon the like reason ill vern  burnet kinaston a mortgage in fee be hold to be only a choose in action and so  to survive to the wife and if the mortgagors interest be in the eye of this  court a interest of that kind only it follow that the person who be entitle to  the equity of redemption must in this court be consider as have the real  estate for otherwise that will be quite sink which can by no mean be admit  this will be further prove by consider a mortgage in fee which be make after a  devise of the same land which at law be a total revocation of the devise but  in a court of equity be only so pro tanto and no more than let in the  encumbrance of a mortgagee upon the land devise and the reason of that be  because the land still remain in the mortgagor it have be object to this on  the part of the plaintiff that a equity of redemption be no more than a right  of action and not such a estate as that there may be a tenancy by the courtesy  of it but it be no otherwise so than every other interest which can only be  come at by subpoena which be the case of all the trust and yet they be always  consider in this court as real estate and if the equity of redemption be no  more than a right of action it follow from thence likewise that the estate of  the land must be say to be in no one for it have be determine that the  mortgage be no more than a choose in action it be likewise say that the  mortgagee be not bare a trustee for the mortgagor and that there it differ  from a trust and it be true he be not bare a trustee for he but in this case  it be sufficient if he be at all a trustee and though he be title in his own  right to the money due upon the mortgage yet as to the inheritance descendable  and the real estate he be a trustee only until foreclose dly what be requisite  to entitle the husband to be tenant by the courtesy of land wherein the wife  have no legal estate during the coverture case tempt Hardwicke at commonlaw  four thing be necessary to entitle he to a tenancy b the courtesy marriage  seize of the wife issue and death of the wife   light a it be admit that in  this case three of the requisite do concur marriage issue and death of the  wife but it be say here be no actual seize of the wife during the coverture  and it must be allow here be no actual seize of the freehold at commonlaw nor  indeed any actual seize at all of the legal estate either in fact or in law  but that be all beside the question for it proceed upon a supposition that  there can be no tenancy by the courtesy but of a legal estate which will be to  overthrow many settle case the true question be whether here be such a seize  in the wife as be in the consideration of this court equivalent to a seize in  law and that I think there be I have already show that a equity of redemption  be the ownership of the land and if so there must be such a thing as a seize  and what else can that be than what the defendant and his wife have in the  present case the mortgage in she marry in and die and as there be no  foreclosure she all along continue in possession of the land and though that  possession be in consideration of commonlaw but as tenant at will to the  mortgagee yet in equity she be consider to be owner of the estate though  subject indeed to the mortgage upon it so that here be a uninterrupted  possession couple with a equity of redemption than which there can be a high  instance of a seize of a equitable estate the only question then be whether  there can be a tenancy by the courtesy of a equitable estate of the wife and  it have be often determine that there can in the case of lady William and sir  Boucher Wray vern two case be cite to that purpose and one of they be of a  trust subject to the payment of debt which differ very little from the present  case and if the trustee be in possession those case be strong than this but  the case of Sweetapple Bendon vern go a great way further for in that case  there be neither seize nor land nor any thing real at all but only the sum of  money decree to be lie out in land which the court consider as land and decree  the husband to have the interest or proceed thereof for his life as tenant by  the courtesy the principal objection under this head be two case tempt  Hardwicke be it that here be a laches in the husband because he may have pay  case tempt Hardwicke er p off the mortgage or bring a bill to redeem and so  have gain a actual seize to his wife dly that it be determine that a wife can  be endow of a equity of redemption and therefore that the husband ought not to  be tenant by the courtesy as to the first objection the laches be compare to a  laches in not gain a seize in law by entry c but the comparison will not bold  for it be not so easy to pay off the mortgage as to make a entry for the  mortgagee be by the rule of this court entitle to six month time c but the  objection will be full answer by consider that it hold equal strong to his be  tenant by the courtesy of a trust estate or of money to be lie out in land nay  the husband may easy and soon obtain a decree in those case than this for here  the nature of the case require time to pass a long account and in that case of  Sweetapple and Bendon it be not think to be a sufficient objection it be  further say that the husband may by this mean suffer the interest money to run  on and by that mean throw a heavy load upon the heir but I do not apprehend  what force there be in this objection for during the life of the wife they be  absolute owner of the land and her heir be in herself she have power to do as  she please in that respect and after her death the heir will have the same  remedy in this court against tenant by the courtesy to keep down the interest  as he will have against any other tenant for life as to the second objection  it will prove too much for it have be determine that the wife shall not be  endow even of a mere trust estate and yet it be allow that of such estate the  husband shall be tenant by the courtesy indeed how that difference come to be  at first settle it may be bare to find a good reason but since it be so we  must follow what have be determine though I can help say if a alteration be to  be make it shall be by allow the wife to have her dower in such case and not  refuse the husband a estate by the courtesy but this hardship upon the wife be  only in case of a mortgage in fee for where the mortgage be for a term only  she will have the aid of this court the reason the court have go upon to  refuse the wife dower of such a equity of redemption have be in pursuance of  disallow it of a trust estate but the reason hold contrary as to husband be  tenant by the courtesy case tempt Hardwicke as to that case cite of Pendrell  Hulse quaere Penville Luscombe see I atk SC cite vin it be observe I atk n  that this case be say to be misrepresent and do not warrant the case say to be  determine by it I bro c r see vern that of February the question be whether  there shall be a possession brother of a equity of redemption the master of  the roll take time to consider but there never be a determination this case be  put at the bar suppose a feme sole convey in fee subject to redemption on  payment of a sum of money by her or her heir she marry have issue and die  before the day and then the heir come and pay the money shall the husband be  tenant by the courtesy now if the nature of the conveyance be only as a  security for money it be the same case as this but if intend as a mere  purchase subject to a bare condition most clear be will not for that will be  to make the husband tenant by the courtesy of a condition of which there can  be no tenancy by the courtesy but this case stand upon different rule and  reason and therefore I be of opinion that the defendant inglis be entitle to  be tenant by the courtesy of the mortgage premise Reg lib a fol in the report  of the same case atk the argument of counsel appear case tempt Hardwicke er p  case tempt Hardwicke hilary term geo two b r sir William lee Knt chief justice  sir Francis page Knt sir Edmund probin Knt sir William chapel Knt justice  Dudley rider Esq attorneygeneral John strange Esq solicitorgeneral