atkins case shepherd versus Titley July the court will not make a inconsistent  decree in a second cause between the same party on account of the confusion it  will create but at the same time Lord Hardwicke declare he will not upon a  order in a former cause tie up the plaintiff but will direct the cause to  stand over so as to give he a opportunity of lie the matter before the court  on a bill of review or otherwise as he shall be adviser Mr shepherd who have a  mortgage for pound upon Mr Jenningss estate in in compassion to the mortgagor  in forgive he pound and three year afterward Mr shepherd lend he pound again  during this intervene time Mr Titley advance the sum of pound to Mr Jennings  for which he give he a mortgage upon the same estate in the year in sir Thomas  Peyton agree to purchase of Mr Jennings for the sum of pound feefarm rend of  pound per and issue out of sir Thomas Peytons estate and pay able to Mr  Jennings imagine that he be at that time seize in fee as he have covenant with  sir Thomas Peyton that lie bad do no act to encumber but sir Thomas Peyton  find afterward that Mr Jennings bad mortgage the feefarm rend to Mr shepherd  apply to he who agree that when he himself be pay his pound and interest that  he will convey the feefarm rend to sir Thomas Peyton who promise that if he be  not disturb in the possession of the feefarm rend he will not commence any  suit against Mr Jennings and in this manner it have rest ever since in a  former cause in at the roll his honour decree that the master shall take a  account of what be due upon the mortgage to Mr shepherd the present plaintiff  for principal and interest and in the take of that account the master have  allow Mr shepherd no more for principal than pound Mr shepherd have now bring  his bill against Mr Titley to be pay the pound and interest or that Mr Titley  may stand foreclose Lord chancellor there be a good deal of difficulty on one  side and on the other and I be very much at a loss what decree to make the  bill be now bring for a new purpose different from the former cause and to be  sure a mortgagee may after a decree for a redemption bring a bill for a  foreclosure unless it be do mere to accumulate the expense and in that case  the court will not give any countenance to it but I do not take this to be the  principal end of the present bill one intention of it be in order to make a  fresh charge on Mr Jenningss estate be a sum lend as the plaintiff say by he  to the mortgagor upon a bind and judgement atkins another end of this bill be  to take in sir Thomas Peytons feefarm rend that they may contribute towards  the satisfaction of the mortgage and be bring in by way of aid if the mortgage  premise shall be a fail fund these be two material point and indeed the nature  of the transaction be very dark and attend with particular circumstance by the  plaintiff charge before the master the interest from to cease upon pound on  the mortgage for pound but the mortgagor afterward give a bind and judgement  for another sum of pound advance and admit this to be a new security though I  do not determine that point now yet the judgement be a lie upon the estate if  Mr shepherd have no notice of Mr Titleys encumbrance for then the equity of  this court will certain allow Mr shepherd to tack the judgement to the  mortgage and to be pay both in the first place before any mesne encumbrance  can be admit but the great obstacle arise from the decree in the former cause  for the master must settle the account under the direction of the court and  can take any notice of the new loan but be confine mere to the plaintiff  mortgage where there be a original cause and a decree make in it you can have  afterward a inconsistent decree in a second cause between the same party for  that will create such confusion as be not to be endure by the rule of this  court and therefore I be of opinion that I can vary the decree in the former  cause but then I will give the plaintiff Mr shepherd some opportunity of try  the validity of this new debt of pound for after this transaction of the pound  it appear by a deed execute between the plaintiff one Davis and Mr Peyton that  they admit the plaintiff to be still entitle to the pound this be so in  whatever light the pound may appear the party do not think it worth their  while to dispute the validity of this demand atkins er p then it will come to  this question whether the plaintiff may not be at liberty to rehear or to  bring a bill in the nature of a bill of review in order that this matter may  be inquire into full and I think it will be hard mere upon a order in a former  cause to tie up the plaintiff absolute so as to prevent his lie this matter  fair before the court therefore I direct the plaintiff to pay the cost of the  day and the cause to stand over that he may have a opportunity f proceed by  bill of review or otherwise as he shall be advice atkins on the that of June  there be a rehear of the several cause when Mr shepherd Mr Titley and sir  Thomas be by bill and cross bill before the court it be insist by Mr Shepherd  counsel that he have the legal estate and no notice of the intervene  encumbrance Mr Titley be not entitle to redeem but upon payment of the pound  and the pound the case rely upon for Mr shepherd be the duchess of Marlborough  versus brace wms the mortgage deed be original for pound it be insist on Mr  Shepherd advance pound again the deed ought to stand as it do before a  security for pound it be intend so by the party and the plaintiff counsel  offer to read parole evidence to show this intention but the counsel for Mr  Titley object to this evidence as be within the statute of fraud and perjury  for there be a receipt on the back of the mortgage deed for pound of course it  appear by the very deed itself that in only principal remain and therefore it  will be a contradiction in term to say that pound lend in be part of the  mortgage in for lend a different sum in be the same as if it have be a new  mortgage so that Mr shepherd can never charge the mortgagor or any other  person stand in his place with its be a part of the old mortgage unless there  be a agreement for that purpose produce in write Lord chancellor whether these  deposition be read before be of no siunification the whole be open and be now  as a original hear but I be of opinion that the parole evidence offer by Mr  Shepherd counsel ought not to be read this be a mortgage for pound the legal  estate be in Mr shepherd the equity of redemption be in Mr Jennings and be so  the sum of pound appear to be pay off upon this mortgage by Jennings upon  Shepherd receipt and who have likewise admit the fact before the master and  the circumstance of the lend or relending be about three year after the pound  be discharge atkins suppose it first as a new loan it be impossible to charge  the mortgage estate with a further sum without a write agreement because it be  charge the equity of redemption with a sum that be not in the deed but then  the way in which Mr Shepherd counsel will take it out of the common case be by  show that it be agree between the party that the estate shall be charge as it  be original with the pound on the other hand consider that the estate be  discharge of the payment of not by a solemn write indeed but by a receipt  under the hand of Mr shepherd it have be say that the whole between Mr  shepherd and Mr Jennings be to be regard but as one transaction and that the  advance the pound again be set up or a continuance of the original sum but  this can be for it be not part of the same transaction for there be the  distance of three year a it be admit here be a break and interest do not go on  for these three year suppose there have be a puny encumbrance between the year  and Mr Shepherd relending the pound and that he have notice of this puny  encumbrance can he have overreach it most certain not this show that the lend  the pound can be consider as a continuance of the old mortgage in but be to  all intent and purpose a new one with regard to a intervene encumbrance within  the three year admit Mr shepherd to have notice and therefore I can allow this  parole evidence then the counsel for the plaintiff produce a bind and  judgement to he for the and insist that he can tack the judgement to the  mortgage and so entitle himself to receive both sum before Mr Titley can be  let in upon the estate for as Mr shepherd the plaintiff have bring a bill to  foreclose Mr Jennings and Mr Titley Mr Titley may have bring a cross bill and  charge notice to Mr shepherd and put this atkins er p matter in issue but as  Mr Titley have not do this he can wrest the legal estate out of Mr Shepherd  hand unless he will pay off the judgement as well as the mortgage Mr solicitor  general counsel for the defendant Mr Titley make two point and insist in the  first place whether under all the circumstance of this case Mr shepherd be to  be allow atkins to tack the bind and judgement for pound in to his mortgage in  against a puisne encumbrance by Mr Titley between the year and Mr Titleys  mortgage be date the that of June the ground he say the court go upon in take  a subsequent security to a former one be that the court will presume the last  money be lend upon the faith of the original security what ground be there to  presume that Mr shepherd lend this pound upon the credit of the original  mortgage the contrary be rather to be presume because be may if he please have  endorse this further sum on the mortgage deed without the trouble of a warrant  of attorney and enter upon judgement which be a more round about way Lord  chancellor interrupt he and ask if it be not a settle rule of this court that  the prior mortgagee may tack a judgement to his mortgage though subsequent in  time to a settle mortgagee when he have no notice of the second mortgage vide  Blackston v moreland Charles can brace v Marlborough p W anon Ves Mr solicitor  general give it up and go to his second point between Mr Titley and sir Thomas  Peyton the equity of redemption of Mr Jenningss whole estate be subject to Mr  Titleys mortgage vide ex part carter Amb and as that part of the estate  mortgage to Mr shepherd will in consequence of your lordship opinion be but a  scanty security to Mr Titley he have a right to come upon the feefarm rend to  make up his principal and interest as they be include in Mr Shepherd mortgage  who Mr Titley be at liberty to redeem and therefore stand in all respect in  the place of Mr shepherd with regard to sir Thomas Peyton as Mr Titleys be a  prior encumbrance and for this purpose cite Bovey versus Skipwith Ch can Mr  attorney general of counsel or sir Thomas Peyton there be no foundation to  alter the decree at the former hear nor be it open to the objection make by Mr  Titleys counsel for the bill have be dismiss as against sir Thomas Peyton this  can now be insist on as a original objection unless it be consequential and a  hindrance of justice the decree there be general to take a account of what be  due to Mr shepherd for principal and interest and the whole pound be then  suppose to be due atkins so that Mr Titley be as much injure by the decree of  dismission of his bill against sir Thomas Peyton then as he be now and  therefore as it do not alter the situation of thing this can be call a  consequential direction from that decree nor can a single reason be give why  your lordship shall retain Mr Titleys bill against sir Thomas Peyton now which  may not have be equal give at the former hear the feefarm rend be not include  in the mortgage to Mr Titley will it be lie down then as a rule in this court  that a original mortgagee and mortgagor can sell a part of the mortgage estate  to a three person notwithstanding a intervene encumbrance upon another part of  the mortgagors estate Mr shepherd in his agreement with sir Thomas Peyton  consent to take his principal and interest first out of the other part of the  estate in mortgage to he before he come upon the feefarm rend and therefore Mr  Titley can be in no better condition than Mr shepherd himself sir Thomas have  agree that he will not prosecute Mr Jennings for his breach of covenant which  be a valuable consideration in point of law and upon which sir Thomas Peyton  may find a assumpsit for it may happen that by this forbearance his debt may  be lose Mr solicitor general in his reply insist that Mr shepherd have not  absolute give up the feefarm rend but reserve to himself a power of resort to  they again if the rest of the mortgage premise shall not be sufficient and  therefore Mr shepherd continue to all intent and purpose to have a mortgage  still upon the feefarm rend that the court will not in case of Mr Jennings the  mortgagor who have defraud atkins er p all the rest of the creditor suffer  such a agreement to defeat the right of a three person Mr shepherd in his  answer to Mr Titleys bill admit he have notice of Mr Titleys mortgage six  month before he sign the article between he and sir Thomas Peyton therefore Mr  shepherd have not part with any security at all but have the whole original  debt for his security still to allow what be contend for on the other side  will be put it in the power of a first creditor to direct the order of payment  as to all the rest atkins the article for the purchase of the feefarm rend  between Mr shepherd and sir Thomas Peyton be in April and Mr Titleys bill be  bring the June immediate follow Lord chancellor the question now before the  court be whether Mr Titley have a right as against sir Thomas Peyton to redeem  Mr shepherd and to have a assignment from he of his entire security and by  that mean to compel sir Thomas Peyton to redeem he as to the feefarm rend as  to the merit I do not know how I can distinguish the case of sir Thomas Peyton  from any other puny encumbrancer or purchaser where the rule of equity be  prior in tempore rather in jure if by the article Mr shepherd be to confine  himself only to the other part of the mortgage premise and have not reserve a  power of resort at all event to the feefarm rend if the rest shall not be  sufficient I shall then have think sir Thomas Peyton have a strong case but as  this case be circumstance the question will be who Mr shepherd be a trustee  for as to the legal estate in the feefarm rend whether for Mr Titley or sir  Thomas Peyton it have be object on behalf of sir Thomas Peyton that Mr Titley  be not right in point of form and that he can by the rule of the court make  this demand now as it be so long since his bill be dismiss against sir Thomas  Peyton let it stand over therefore to ascertain this fact whether when the  cause be hear at the roll the point between Mr Titley and sir Thomas Peyton be  litigate then for if it be sir Thomas Peyton may insist on the acquiescence of  Mr Titley under that decree otherwise if Mr Titley bill be dismiss without any  prejudice to this question