But not agent or trustee,

standing doubts, the same doctrine applies to a stranger (g). In the anonymous case in Salkeld, however, it is stated, that "if one acts for himself, and being not in the circumstances of a trustee or executor, buy in a mortgage for less than is due, or for less than it is worth, he shall be allowed all that is due on the mortgage, for he stands in the place of him that assigned, viz., the mortgagee, who might have given it to him gratis, and what is due must be the measure of our allowance, and not what he gave, for that might have been more than it is worth, as well as less, and since he runs the hazard if loss happens, he ought to have the benefit in case it turns to advantage; so said and admitted, per Cowper, Lord Chancellor "(). These remarks apply as much to a stranger as to a creditor.

An agent, trustee, heir at law, executor, or guardian, purchasing a puisne incumbrance, shall, as against another incumbrancer, be paid no more than what he gave for this incumbrance; otherwise as to a prior creditor, who bonâ fide buys in the puisne incumbrance, though he did not give the full value for it (i). And the rule or guardian. applies to the case of a guardian buying in an incumbrance charged on the estate of the infant for less than its value, of which the infant will have the advantage (k).

Surety.

The same rule was applied against a solicitor (7) and a solicitor's clerk who, by means of knowledge acquired by him while acting in that capacity, was enabled to purchase a mortgage for less than its value (m).

And such a purchase cannot be made by any such person, even after he has ceased to fill any of the above characters, unless after full communication made by him of all the information he gained while he filled such character, and with the full knowledge and consent of his principal (»).

A surety compounding the debt for a smaller sum, cannot, as against the principal debtor, stand as a creditor for the full amount (o).

(g) Pow. Mtg. 396; Patch on Mtg. 278, 279, and quære.

(h) Anon. 1 Salk. 155.

(i) Morretv. Paske, 2 Atk. 54. And see Bromley v. Holland, 5 Ves. 620, n.; and see Braithwaite v. B. 1 Vern. 335, and Anon. 2 Vent. 353; Lancaster v. Erors, 10 Beav. 154, 266; 16 L. J. Ch. 8, 13; 1 Ph. 349, 355; 13 L. J. Ch. 269; Carter v. Palmer, 8 Cl. & F. 657.

(k) Powell v. Glover, 3 P. Wms. 251, note.

(1) Nelson v. Booth, 8 Jur. N. S. 950, V. C. Stuart.

(m) Hobday v. Peters, 28 Beav. 349; 29 L. J. Ch. 780.

(n) Carter v. Palmer, sup. And see

3 Sug. Vend. 895, ed. 11.

(0) Reed v. Norris, 2 My. & Cr. 361; see inf. p. 1227.

A distinction must be taken if the heir at law or trustee, &c., has himself a charge on the estate; in which case he will have the full benefit of an incumbrance bought in for his protection (2).

The heir was allowed the full benefit of his purchase against an Heir. incumbrancer, a solicitor who advised the purchase as a provision for the heir (q).

So the devisee of the reversion, being also second incumbrancer, Devisee. was allowed the full benefit (r).

Directors of a company purchasing its debentures, which were Directors. disputed, at an undervalue, were allowed only the amount paid with

interest (s).

In bankruptcy the purchaser is entitled to a dividend on the full Bankruptcy. amount (t).

life.

A tenant for life is only entitled to the amount paid, semble (u). Tenant for The rule is not applicable to a trustee, where the debtor ac

quiesces (r).

If the cestuis que trust for a long time refuse to adopt the purchase, the trustee may keep it (y).

Residuary legatees may purchase each other's shares and charges Residuary thereon at an under price (y).

legatee.

The executor of a mortgagee of a term of years purchasing the Executor. equity of redemption in fee for a small sum in his own name and for his own benefit will be considered a trustee for the benefit of his testator's estate ().

1130

CHAPTER LXXXI.

DEVISES AND BEQUESTS OF MORTGAGES.

Twofold interest in mortgage.

EVERY mortgagee, so long as the land is redeemable, has a twofold interest in the property in mortgage, viz., a beneficial interest, which in the eye of equity is personal estate, and a legal interest, which is either real or personal according to the nature of the mortgage; and in considering the will of a mortgagee, the questions which may arise are, whether he has intended to pass both, or one, or neither of these interests to the parties claiming under the will. If he has not intended to pass either of these interests, then the beneficial interest has devolved on his executor, as part of his personal estate, and (if the mortgage be in fee) the legal interest has devolved on his heir-at-law, in trust for the executor (a); but if the mortgage be for a term of years, then both the legal and beneficial interests have devolved on the executor. If he has passed the beneficial interest only, and the mortgage be in fee, then the legal interest has devolved on the heir-at-law, in trust for the legatee (b). If he has passed the legal interest only, then the devisee has become a trustee for the executor. If he has contrived to pass the beneficial interest to A. and the legal interest to B., then B. has become a trustee for A. (c), and lastly, he may have given both the beneficial and legal interests to the same person.

(b) See Att. Gen. v. Meyrick, 2 Ves. S.

(a) For an instance of this, see Exp. Morgan, 10 Ves. 101.

46.

(c) See 1 Atk. 605, n.

Since the Conveyancing Act, 1881, s. 30, the legal interest in all mortgages, whether freehold or otherwise, devolve on the legal personal representatives, notwithstanding any testamentary disposition (d).

The decisions before this act on some of the above points were very contradictory.

The effect of the words "mortgages" and "securities for money "Mortin the will of a mortgagee in fee, has been rerata quæstio. It is gages." clear that either will pass the whole interest of the devisor in equity; but a doubt has existed whether they will at law pass the fee-simple of the lands. Under the words "all my mortgages," the lands will now pass, whether the mortgages have been forfeited or not. In an early case (e) the land was held not to pass, and Crips v. Grysil (f), in which the land was held to pass, contained other words besides "mortgages," i.e., I do make my son my executor, "yea, and also my heire of this freehold" (g), and there does not appear to have been any other property than the land in mortgage. But the Court agreed (1) that if the testator had devised "all his estate in such land," or had mentioned that he had such land mortgaged in fee, and had devised "his mortgage," the fee would have passed. It therefore would appear that the Court considered the word "mortgage" in a will, strong enough to pass the fee-simple, if the testator's intention to that effect could be ascertained. In Att. Gen. v. Meyrick (i), the Master of the Rolls appears to have taken for granted that the word "mortgages" would not pass the legal interest in the lands. He says, "by a gift of all one's mortgages to A. the whole beneficial right passes to him, and be the legal interest either in the heir or executor, each will be considered a trustee for him "().

debt."

In the Duke of Leeds v. Munday (k), it was not contended that "Mortgage by a bequest of the mortgage debt, the lands in mortgage passed. And yet in another case (7), Sir William Grant is reported to have said, that there was no doubt a gift of the money would carry the mortgagee's interest in the land on which it was secured; and

"All moneys on mortgage."

"Securities

putting the case hypothetically, "if it had been a mortgage, there was no doubt a gift of the money would have passed the land."

In Silvester v. Jarman (m) the words of devise were amply sufficient per se to have carried the legal fee, but other words being introduced, subjecting the property devised to the payment of debts, it was held that the land did not pass. The word "mortgages" was comprised in the devise, but that fact was not adverted to (n).

The modern authorities, however, have extended the cases in which the legal estate in a mortgage has been held to pass, and it may be considered as settled that a devise of "all my mortgages," will pass the legal estate in fee, at all events if the mortgage debt belonged to the testator (o).

A bequest of "all moneys on mortgage," passes the legal estate in the mortgage premises ("), as it must be intended that all powers for recovering the moneys, including the real estate, should pass (n). Doe v. Bennett (n) was questioned by V. C. Kindersley in a case (p) in which the difference is pointed out between a bequest of money on security and securities for money, the money only passing by the former, but the estate as well as the money by the latter. The better opinion is that in both cases the legal estate will pass as an incident (o).

Family charges on an estate of which the testator was tenant for life, are not included in "money due to him on mortgage from any person" (r). Nor is a perpetual rent-charge (»).

A bequest of "securities for money" passes the legal estate in for money." fee. Galliers v. Moss (s) must now be considered as overruled (t). And as a general rule, where securities are devised, not only the security or mortgage deed, but the land is devised also (n).

Where a residuary legatee is entitled to mortgages standing in the name of the testator, or of trustees for his estate, and there are other mortgages charged with legacies, a bequest of all my "money

(m) 10 Pri. 78.

(n) Doe v. Bennett, 6 Exc. 896.

(0) Re Steven's Will, 6 Eq. 598, V. C. Giffard.

(p) Re Cantley, 17 Jur. 124, V. C.
Kindersley.

(r) Earl Poulett v. Hood, 35 Beav. 234.
(s) 9 B. & C. 267.

(t) Mather v. Thomas, 10 Bing. 44;
S. C. 6 Sim. 115; Renvoize v. Cooper, 6

Mad. 371; Exp. Barber, 5 Sim. 454; ReKing's Mtg. 5 De G. & S. 644; 16 Jur. 1153; Knight v. Robinson, 2 K. & J. 503; Rippen v. Priest, 9 Jur. N. S. 649, C. P.; 32 L. J. C. P. 65; Walker's Estate, 21 L. J. Ch. 674, V. C. Parker; Archibald v. Hartley, ib. 399, V. C. Kindersley; Ogle v. Knipe, 8 Eq. 434, V. C. James. But see Exp. Price, 14 Jur. 53, V. C. E.