brown case margaret parker widow appellant edward harvey and other respondent  d may Mews dig way seven viii land settle on a for life for heir jointure be  covenant to be of a certain clear yearly value after the death of the husband  the jointureland turn out deficient the jointress be entitle to have the  deficiency make good out of other land and to come in as a specialty creditor  upon the husband estate for the arrear of the deficiency with interest order  of Lord chancellor Macclesfield reverse in part various point of this case as  they appear to have occur in its different stage be report in viner and Eq can  ab though it be not clear certain whether all the point arise in the same  cause some of the date assign be as early as easter and other as late as brown  er p in vin can Eq ab can the decision be thus state the grantors covenant in  a marriagesettlement for he and his heir that the premise be free from  encumbrance shall come in with creditor equal on bind per Cowper c pasch vin c  Eq ab c interest be allow upon demand due by covenant though object that they  be not liquidate and only find in damage ms Tab title interest cite bee Parker  v Harvey vin can Eq ab can state a irrelative point as to cost vin can Eq ab  can the like as to a master report vin can Eq ab can where a husband borrow of  his sister jewel to present to his wife on his marriage Cowper c say this give  of they be a change of the property and a kind of sale in marketovert and on a  devise of real and personal estate for payment of debt if the personal be not  sufficient and the real be and the husband devise to her all her jewel  etcetera she shall have the specific legacy of her jewel pasch canc Parker v  Harvey vin p can Eq ab c judgement debt carry interest ms Tab title interest  cite bee Parker v Harvey by indenture dart the that of may Christopher Parker  the appellant late husband mortgage several close and parcel of land in  Birchholme and Waddington in the county of Lancaster of pound S per and clear  rend to William peer William Esq for the term of year for secure pound and  interest and afterward borrow of Mr peer William the further sum of pound  which be likewise secure on the say premise by way of endorsement on the  mortgage by indenture of lease and release date the that and that of July in  consideration of a marriage then intend and afterward have between the say  Christopher and the appellant and of pound portion the say Christopher Parker  convey to trustee and their heir the mortgage premise and diverse other land  and hereditament in the county of Lancaster and York to the use of himself for  life remainder to the appellant for life for her jointure remainder to the  issue of that marriage with remainder to himself in fee and he thereby  covenant that he be seize in fee of all the premise and that the appellant  jointure estate be and shall continue pound per and beyond all brown reprize  parliamentary tax except and free of all encumbrance save only the before  mention mortgage to Mr peer William which be to be immediate pay off and the  term to be assign to Thomas Jenkins Esq in trust to attend the use limit by  the say indenture of release which be soon afterward do and the term assign  accord at the time of make this settlement other part of the jointureland  situate in clitherow in the county of Lancaster be in mortgage to the  respondent Harvey and his heir for pound and interest by indenture of lease  and release date the that and saint of July and by several sum of money  afterward borrow and endorse upon that mortgage the principal money due  thereon at the death of the say Christopher Parker be increase to pound in  August the say Christopher mortgage other part of his estate to Mr peer  William for the residue of certain term for year for secure pound and interest  which continue due at his death and he be likewise at his death indebt to  Edward Dixon in pound principal money secure by two several judgement of pound  each enter up about Hilary term in January Christopher Parker die without  issue have first make his will and thereby direct that all his just debt shall  be in the first place pay and full satisfy and for that purpose do will and  appoint that all his personal estate shall be in the first place sell and  apply towards the payment of his debt and then such part of his freehold  leasehold and copyhold estate shall be likewise sell and apply for the  discharge such part of his debt as his personal estate shall fall short to do  at the discretion of his executrix the manor of Bradkirke only except and of  his say will make the appellant executrix brown er p but she renounce the  respondent Catherine Stanley the testator sister and heir at law take out  administration with his will annex soon after the death of the say Christopher  the respondent Harvey pay off Mr William and take a assignment of his  lastmentioned mortgage in the name of Ayloff and bridge his trustee and he  likewise take a assignment of the two judgement to Dixon have so do the  respondent Harvey in Trinity term exhibit a bill in chancery in his own name  and in the name of Ayloff bridge and Dixon against the appellant and the  respondent Stanley and his wife and other for a account of the real and  personal estate of the say Christopher Parker and to be pay the several  principal sum and interest above mention to be due to he or that the equity of  redemption of the mortgage premise may be foreclose and that what shall be due  to he over and above the value of the say mortgage premise may be pay he  accord to the say Christopher will out of his other estate and the appellant  find her jointureland to fall great short of pound per and do about the same  time exhibit her bill in chancery against the respondent Stanley and his brown  wife and other to have the deficiency of her jointureland make good to her  accord to her husband covenant and like wise to have the benefit of the year  term assign to Jenkins and to be reimburse several sum of money which she have  since her husband death pay to several of his creditor and also to have her  jewel and paraphernalia decree to her the respondent Stanley and his wife by  their answer to the original bill insist that mary Parker the mother of  Christopher and of mrs Stanley be possess of a very considerable sum of money  in her widowhood purchase land and tenement in clitherow of which the land  comprise in the mortgage to Harvey be part and that by her will date the saint  of July she give pound to the respondent Catherine to be pay her by her son  Christopher at the age of or marriage and pound per and maintenance in the  mean time to be pay quarterly and charge her whole real and personal estate  therewith and also give the respondent Catherine one half of all her household  good and plate and she give to her son Christopher all her manor message land  tenement and hereditament whatsoever and wheresoever to hold to he and his  heir from and immediate after his age of and in the mean time direct that the  rend and profit thereof shall be receive by her executor and lie out in the  education and maintenance of her say son and declare that if either of her say  child shall die before or before her daughter Catherine shall be marry or her  son Christopher shall have child that then the survivor shall be heir to the  decease and have the whole estate and therefore the respondent further insist  that Christopher be dead without issue they be become entitle to the say  premise in clitherow and that no conveyance or mortgage pretend to be make by  he can take place or deprive they from enjoy the benefit of the say will the  other defendant have put in their answer and issue be join and witness examine  in both cause they come on to be hear together before the Lord chancellor  Cowper on the that of may when his lordship be please to declare that the land  in clitherow part whereof be mortgage to the respondent Harvey and also  comprise in the appellant jointure for want of a fine and recovery by  Christopher do on his death without issue belong to the respondent Catherine  Stanley and her heir by virtue of the will of her mother mary Parker and that  they be not liable to any of the debt of the say Christopher her brother and  therefore decree the same to be heid and enjoy accord by the respondent  Stanley and his wife and it be further order and decree that the land and  premise in mortgage to Mr peer William and by he assign in trust for the  respondent Harvey shall be sell by the master to the best purchaser who be to  compute what be due to the respondent Harvey for the pound by he advance to Mr  peer William with the interest thereof which be to be pay he in the first  brown place out of the money arise by such sale and the overplus be to be  retain by or pay over to he towards satisfaction of his other demand and the  master be direct to look into the reality of the respondent harvey security  and encumbrance and state what be due to he for principal brown er p and  interest thereon and what upon such account shall be find due to the  respondent Harvey for principal and interest he be to receive a satisfaction  for out of the real and personal estate of the say Christopher make liable by  his will to the payment of his debt in equal degree with his other creditor  then before the court and upon the appellant bill it be refer to the master to  take a account of her late husband real estate whereof he die seize in fee and  which by his will be subject to the payment of his debt and of the yearly  value thereof and what be to be the yearly value of the appellant jointure and  to certify what be the clear yearly value of such land and what they have fall  short of the yearly value which by the marriagesettlement the same be to have  be and whether the jointureestate be subject to any and what encumbrance prior  to the marriagesettlement and what the appellant be damnified by her say  husband covenant be break as well for the time pass as to come and the master  be to make a estimate of the value of the appellant estate for life therein  and for so much as shall be so certify to be due the appellant be to receive a  satisfaction out of her husband real and personal estate subject to the  payment of his debt with the other creditor in equal degree then before the  court and for that purpose the real estate of the say Christopher whereof he  die seize and which be subject to his debt and the reversion of the appellant  jointure be to be sell before the master and the money arise by such sale be  to be bring before the master who be to apply the same to and among the say  Christopher Parker creditor then before the court in equal degree and  proportionable to their respective demand in such manner as before direct and  the residue of the purchase money be to remain in the master hand subject to  the direction after give concern the same and the master be also to see what  debt of the say Christopher the appellant have pay since his death and for  which she be to stand in the place of such creditor and to receive a  satisfaction for the same in equal degree with her husband other creditor and  in take the account of the testator debt the master be to distinguish what  debt be due by specialty and what by simple contract and the creditor of the  say Christopher who be no party to the suit be at liberty to come before the  master and to prove and make out their debt they in the first place pay their  proportion of the charge of the say suit and the consideration how and in what  manner those debt shall be pay be reserve till after the master report and the  appellant jewel be to wait the say account till it be see whether the estate  liable to the payment of the debt be sufficient without resort thereto brown  and it be further order and decree that the respondent Stanley and his wife  shall come to a account before the master for the rend and profit of the real  estate belong to the say Christopher which be receive by or come to the hand  of the say mary Parker his mother as his guardian during his infancy in the  take of which account the master be to make a proper allowance for the  maintenance of the say Christopher during his infancy together with all other  just allowance and in like manner a account be to be take as between  Christopher and Stanley and his wife and Christopher be to be charge with what  shall appear to be the value of the household good and plate of the say mary  devise by her will to the respondent Catherine as also of her personal estate  which at any time come to the hand of the say Christopher as also with the  rend and profit of the real and chattel estate belong to mary which be receive  by or come to the hand of Christopher in the take of which lastmentioned  account the master be to make a allowance for such debt of the say mary as be  pay off and discharge by Christopher together with all other just allowance  and if in take the say account the say Christopher shall be find to be a  creditor of his say mother over and above what he receive out of her estate  the same be to be make good to his personal estate out of the real estate and  asset which be devise to the respondent Catherine but if Christopher shall be  find debtor to his mother estate then the respondent Stanley and his wife the  administratrix of Christopher be to retain so much as shall be find due to  they out of the personal estate of Christopher come to their hand accord to a  course of administration of which say personal estate a account be likewise  direct to be take and all party be in the first place to have their cost out  of the brown er p say estate except only the respondent Harvey who be to be  pay his cost when he receive his money in such manner as before direct on the  that of July the master make his report and thereby certify to be due to the  respondent Harvey on the mortgage assign in trust for he by Mr William pound  for principal and interest and pound S d for his cost amount in the whole to  pound S d and on the other mortgage make to the respondent Harvey himself  pound S d and on the judgement assign to he by Dixon pound S d the master also  certify the appellant jointure estate to be only pound S d per and and that as  a compensation to her for the deficiency she be then entitle to pound S d and  that the appellant have pay to her husband creditor several sum amount to  pound S d that there have come to the hand of the respondent Stanley and his  wife of the personal estate of Christopher pound S d out of which be deduct  pound S d for the funeral charge and debt of the say Christopher pay by they  and on the balance of that account the master certify they to be creditor upon  the say Christopher brown estate in pound S the master further certify that  several creditor not party to the suit have come before he and prove their  debt to the amount of pound S d and compute all the debt of Christopher to be  pound S d the land comprise in Mr williams mortgage and by he assign in trust  for the respondent Harvey be afterward sell for pound and the money be bring  before the master be by he pay to the respondent Harvey which be pound S d  more than be due to he in respect of that mortgage either for principal and  interest or his cost he have before receive on account of those cost pound S  the other estate of the say Christopher include the reversion of the appellant  jointure be likewise sell and the whole money bring before the master on  account of the sale of the say Christopher estate be pound S out of which the  master pay towards the cost of the several party pound S so that there then  remain in his hand to be divide between the appellant and respondent Harvey  towards satisfy their several other demand pound beside the appellant jewel on  the that of January the cause be hear before the Lord chancellor Macclesfield  on the equity reserve after the master report when his lordship be please to  order that public notice shall be give in the gazette for such of the creditor  of the say Christopher who have not prove their debt to come in and prove the  same in order to receive a satisfaction in proportion with the other creditor  and if they shall not prove the same before easter then next they be to be  exclude the benefit of the say decree and the master be to carry on the  account as to the creditor who have prove their debt and compute interest for  such debt as he have allow interest for from the time of his report and the  master be to sell the jewel so bring before he and the money arise by sale  thereof and also the other money in the master hand be to be apportion between  the several creditor who have or shall prove their debt by the time aforesaid  to be pay they by the master first deduct thereout each party proportion of  the charge of the suit and the master be to inquire and see what the appellant  have pay and disburse in carry on those suit more than her proportion of the  charge thereof in the take of which account the master be not to tax the bill  as between plaintiff and defendant but to take the appellant all just and  reasonable allowance and the master be also to inquire and see what the  appellant have receive towards satisfaction thereof and what shall appear to  be remain due to her in respect of such cost be to be pay her in the first  place out of the money in the master hand and the creditor who have already  receive satisfaction be to pay their proportion of the say cost to be  apportion by the master accord to what they have receive and be come to the  rest of the creditor who be not then pay brown and shall prove their debt  before the master by the time aforesaid the cause be reheard upon the petition  of Dixon and dobson as judgement creditor on the that of July his lordship be  please to declare that the brown er p judgement creditor of Christopher ought  to be pay their principal interest and cost in the first place out of the  money arise by the sale of the jewel and the other money in the master hand  and that the rest of the creditor ought to be pay in proportion as far as the  residue of the money will extend and order the same accord and refer it back  to the master to carry on the interest of such debt as he have allow interest  for and to tax the party their subsequent cost and in pursuance of this last  order the master by two report date the that of February certify to be due on  Dixon judgement for principal interest and cost pound S d and on dobson  judgement pound S d from the original decree and the several subsequent  proceed and order make in pursuance thereof the present appeal be bring and on  the appellant behalf it be argue t Lutwyche c robin that by the original  decree she be to receive a satisfaction out of her husband real and personal  estate in equal degree with the other creditor then before the court and the  money arise by sale of the estate be to be apply accord and that this decree  be sign and enrol ought not to have be vary by the subsequent order whereby  the other creditor and particular those by simple contract be let in to be pay  equal with the appellant who be a specialty creditor and have a prior mortgage  term of her jointure land assign to protect her jointure from encumbrance but  if this decree may be vary by the subsequent order yet as the appellant be a  specialty creditor by covenant wherein her husband have bind himself and his  heir she have a real lie on the freehold estate which the simple contract  creditor have not and as the will do not direct the whole estate to be sell  for the payment of debt but express except the manor of Bradkirke that part of  the estate so except be real asset descend and be liable to the specialty  creditor then before the court in preference to any other either of equal or  inferior degree that since obtain the last order and the master report thereon  the respondent Harvey insist to apply the pound S d which remain in his hand  of the pound pay he by the master beyond what be due to he in respect of the  pound mortgage and for his cost whole to the payment of his pound mortgage  which have turn out deficient because of the respondent mrs Stanley be entitle  to the whole of the land comprise in that mortgage and also to part of the  land comprise in the appellant jointure so that Mr Harvey and the appellant be  creditor of her late husband no otherwise than by virtue of the covenant in  their respective security and therefore he have brown no right to any  preference in respect of the pound mortgage but the appellant have more right  to all the money arise by the sale of the land mortgage to Mr peer William  because they be assign to protect her jointure the respondent Harvey have also  by virtue of the order of the that of July be pay the pound S d due on the two  judgement in preference to the appellant but by the express provision and  meaning of the original decree he have no right to any such preference by that  decree the respondent Stanley and wife be to retain the personal estate  towards satisfaction of their debt which be now report to be pound S in a  course of administration but by the order of the that of January it be make  Payable in equal degree with the appellant demand but which ought not to have  be for in case her husband have be indebt to his mother estate on the balance  of the account that debt can only be a debt by simple contract and therefore  ought not to be pay in equal degree with the appellant demand which be for the  deficiency of her jointure that by the order of the that of July such of the  debt as carry interest be to have interest compute and carry on to the time of  payment but no provision whatever be make by either of the two last order for  the appellant have interest for any part of her demand from the time of its be  state and settle by the master although it be now upward of fourteen year  since her husband death during all which time she have be a loser of above  pound per and on account of her jointure of which she be a purchaser for the  most valuable of all consideration beside the great trouble and expense which  she have be put to in the prosecute these suit it be therefore hope that the  say decree or order and the subsequent proceed in pursuance thereof will brown  er p be vary in the several respect before mention and proper direction give  for the appellant relief on the part of the respondent Harvey it be insist c  Talbot I idle that he be entitle to the whole pound arise from the sale of the  premise mortgage to Mr peer William because by the original decree the money  thereby arise be in the first place to be apply in discharge of that mortgage  and then the overplus be to be pay in satisfaction of the respondent other  demand but which overplus be not sufficient for that purpose as appear by the  master report beside this pound have be pay to this respondent by the consent  of the appellant herself and the other party in the cause that it do not  appear that the original decree be find upon a persuasion that there will be  more than sufficient to make good the appellant jointure and pay the  respondent demand but if it do so appear the appellant will not thereby be  entitle to the year term assign to Jenkins because that term as the appellant  show by her appeal be so assign to protect the freehold reversion and  inheritance of the premise accord to the use of the settlement one only of  which use regard the appellant videlicet the use to her after the brown say  Christopher Parker death for her life during which time she be entitle to and  still enjoy the protection of that term but as she be not entitle to nor  pretend to claim the value of the inheritance so she be not entitle to the  value of the term distinct from the inheritance because the term be intend to  go along with and protect the inheritance and that no provision be make by the  decree for the appellant have interest for her demand because those demand  rest upon the covenant in damage only do not carry interest on the part of the  respondent Stanley and wife it be contend p York n fazakerley that as to the  appellant claim of priority under the assignment of the year term she have  make no such case by her bill nor thereby seek any benefit of that term nor be  this satisfy mortgage and assignment ever prove in the cause or produce or  offer to be read at the hear nor do the appellant ever set it up or insist  upon any benefit of it save only by her appeal on the contrary her own bill be  so far from surmise any deficiency in the value of the estate to make her a  satisfaction that it express charge her husband estate subject to his debt and  by his will devise to be sell together with his personal estate and the  reversion of her jointure to be more than sufficient to satisfy her demand and  all his other debt and therefore pray a sale thereof for those purpose and for  this she can have have no foundation if her husband have not make such a will  under which every creditor have as good a equity to be satisfy his debt as the  appellant who at most can only be consider as a creditor for what she be  damnified by her husband breach of covenant but if it be possible for such a  irregular attempt to succeed it tend only to set up a satisfy encumbrance to  give the appellant a preference to her husband other just and honest creditor  and who in all event must lose the great part of their debt at the same time  that she seek to partake of the fund which he have appoint for the  satisfaction of they all that the whole debt due to these respondent appear by  the master report to be pound S d whereout they be allow to retain only pound  S d and be by that report to be pay the pound S residue thereof out of the  estate devise by the testator for the payment of all his debt in equal degree  with his other creditor then before the court and under such a general devise  this be high just and equitable because the testator be as just indebt to  these respondent as to any other of his creditor and as by his will he have  make no distinction between his creditor equity will give no preference to any  of they that as to interest upon the appellant demand she be not entitle to  any and therefore it be not ask nor even reserve by the decree and consequent  can not be give to her by any of the subsequent order and as to the appellant  great cost and charge in carry on these suit she certain complain of a order  make evident in her favour it not be usual for the court of chancery to make  such a distinction in brown the tax of cost as in this case have be make for  all which reason it be hope that the present appeal as against these  respondent will be dismiss with cost brown er p and on the part of the  respondent Dixon and dobson it be insist c Talbot I strange that there can be  no reason for reverse the decree and the subsequent proceed thereon as to the  respondent Dixon she be a original plaintiff in the cause neither can there be  any objection as to the respondent dobson for by the appellant own show there  be liberty reserve by the decree for the creditor who be no party to the suit  to come in before the master and prove their debt which she accord do and the  consideration how the same shall be pay be reserve until after the master  shall have make his report beside both these respondent be creditor by  judgement and consequent have a lie upon the real estate which have be sell  and be entitle to a preference even against the personal asset before the debt  by specialty and simple contract after hear counsel on this appeal it be order  and adjudge that so much of the several order appeal from whereby pound S d be  direct to be pay to the respondent Harvey over and above the principal  interest and cost due on the mortgage assign to he by Mr peer William shall be  reverse and that the say pound S d shall be apply in equal proportion towards  the debt due to the appellant to be compute accord to the sum state to be due  to her with interest for the same from the time of such state the debt due to  the respondent Harvey and the debt due to the other creditor by specialty and  that so much of the order appeal from as direct the application of pound S to  the payment of the respondent Stanley demand in equal degree with the other  creditor shall be reverse and that a account shall be take by one of the  master of the court of chancery of the reality of the respondent Stanley debt  how it become due and whether by specialty and to report the same to the say  court who be to do thereon as shall be just and it be further order and  adjudge that the rest and residue of the order complain of shall be affirm  jour vol p