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debts, which Lord Hardwicke has enumerated as the excepted cases out of the general rules of revocations.
Mortgages in fee are differently regarded in the Different consicourts of common law and those of equity (1). At mortgages in law they are total revocations, but in equitable consi- and equity. deration they are only revocations pro tanto (2). It is not on the ground of the particularity of purpose that a mortgage in fee is in equity held to be only a revocation pro tanto, though the distinction between the practise of courts of equity and law have been often incautiously put upon that ground; but the true reason arises out of the distinct considerations under which mortgages pass in courts of law and courts of equity.
a 3 Atk. 805.
in analogy to the above-mentioned cases of assurances by fines and recoveries.
(1) It seems, however, as if this distinction did not always exist, see 1 Ch. Rep. 82.
(2) And if the mortgage be by deed and fine, it is nevertheless a revocation only pro tanto, in equity, 2 P. Wms. 334, per Lord Chancellor King. But according to Viner tit. devise (P) pl. 10, it was held by Lord Cowper, 6 Ann. that if a man devises lands, and afterwards mortgages
and then leries a fine sur cognizance de droit come ceo, and not a fine sur concessit, this will be a revocation; but that a fine sur concessit had revoked only pro tanto. It is a critical question whether the principle upon which courts of equity consider mortgages as only revocations pro tanto does not reject this distinction, vid. post. 336.
A court of law can only look to the legal operation of the deed, whereby the testator by conveying out of himself his legal estate, of necessity must be held to revoke a previous disposition by will of that estate, bứt in equity the transaction has another aspect, and is only regarded as a security for the debt; the devisor remains complete owner, as before, of the estate, subject only to the security, which is in the contemplation of equity nothing but a chattel. And upon the same principle, if, after a devise, the testator makes a conveyance of the whole fee, upon trust to sell and pay debts, the interest
of the testator (3) is only affected to the extent of In equity, cone that incunabrance. To that extent the will is reve one anoces by any voked, but the equitable estate in the subject of the debes generally, devise remains unaltered, except in so far as it is ailemonly revoca: become charged with such debts; and therefore if, charge.
after such deed of conveyance, the legal estate in the remaining part of the property, when the object of payment of debts has been satisfied by the disposition of part, is taken back by the testator, by a reconveyance to himself and his heirs, his will is unrevoked in equity
tent of the
Vid. Harmood v. Oglander, 6 Vez. jun. 221.
(3) It is to be observed, however, that if A. devises lands to his executors to be sold for the payment of his debts, and then conveys it to trustees for the payment of debts, the devise is revoked. 2 Ch. Ca. 116.
The late Lord Alvanley (4), when sitting as the Master of the Rolls in the case of Harmood v. Oglander, states the criterion for distinguishing when equity will interfere with the law in respect to the revocation of wills by subsequent conveyances, and to what extent, with great precision, and in a manner which shews that the doctrine is not grounded on the particularity of the object of the deed. He lays it down as a primary rule of law, that " any alteration of the estate, or a new estate taken, is at law a revocation, whether for a partial or a general purpose; equity never controuls the law upon revocation, except
(4) It would be a sort of injustice to that learned Judge to omit Lord Alvanley's this opportunity of introducing to the reader the ingenious vindica- defence of Wileither where the beneficial interest, being distinct from the legal estate, is devised, and the devisor if he afterwards takes the legal estate takes it without any modification or alteration; or where, having the complete legal and beneficial estate at the date of the will, hc divests himself of the legal estatė, but remains owner of the equitable interest, as in the case of a mortgage, or a conveyance for the payment of debts."
Owen, tion which, in the course of his judgment in this case, he makes of his decision and doctrine in the case of Williams v. Owen. says he, instead of articles, the testator had, before the marriage, conveyed to a trustee, in trust for himself till the marriage, then for himself for life, remainder to the issue in tail, remainder to himself in fee, then made the will, and then had called upon the trustee to convey, and he had conveyed, it is admitted that would have been a complete revocation in law; but as clearly it would not have been a revocation in equity, and the heir must have conveyed to the uses of the will. In principle that does not differ from the case of Williams v. Owen. There the devisor was bound by the articles, and he might have been compelled to convey accordingly. Then it is strange to say, that if a conveyance were taken from a trusa tee it would be no revocation; but if, according to his obligation, he himself conveyed to the same uses, it would be a révocation. No one can deny that articles are in equity equal to a conveyance. No one can deny that he remained a trustee to the use of the articles, and must have conveyed accordingly.".
In the above case of Harmood v. Oglander the object of the intended recovery was a mortgage, it was
therefore for a partial purpose, but that alone could · not save it; and though had it been a simple conveyance of the fee by way of mortgage, it would have been only a revocation pro tanto; yet the mode of effecting this intention being by recovery, which in equity as well as law passes the whole estate out of the owner into the tenant to the præcipe, to be recovered out of him by the demandant, from whom a new estate is to be taken, the will was held to be clearly revoked; and this although the recovery was not, in fact, proceeded in further than the conveyance to the tenant to the præcipe (5).
In Sparrow v. Hardcastlé, as that case is reported in a note to Goodtitle v. Otway, in the reports of
(5) It must be for the reader to distinguish in principle between the case of a mortgage by fine levied, and a mortgage by recovery suffered, and vid. supra, 333, note 2.
on which morto
Messrs. Dornford and East', Lord Hardwicke intimates The true ground the true ground on which mortgages in fee are con- gages in fee are sidered in Equity as only revocations pro tanto of a Equity, as only
revocacions pro will.
“ The principal ground,” says his Lordship, tanta on which they put this case is, that this grant was intended only for a particular purpose, and that when that purpose was answered the estate was not intended to be altered, but to remain as before; and this was compared to a mortgage. The reason why mortgages are taken to be out of the general rule is this. It does not depend on the general ground insisted on at the bar of being conveyances for a particular purpose, (4) but on the foot of being securities only. Whether the mortgage be in fee or for years only, is all one in this Court, they are alike considered as chattel interests. A mortgage in fee goes to the executors, (for whom the heir is only a trustee) supports no dower, and has no one property of a real estate."
Vid. 7 T. R. 417.
2 Vera. 241.
(4) In Harmood v. Oglander, Lord Eldon gives full confirmation to this opinion, which case was decided for the intire revocation both at law and Equity, on the ground of there being uses declared upon the recovery beyond the mere purpose of the mortgage. In deed where a recovery is necessary the estate necessarily wadergoes an alteration thereby, and therefore if a tenant in rail makes a morte gage, and for that purpose suffers a recovery, and declares the ulteriour use to himself in fee, the estate is altered, and it seems the will is clearly revoked. See & Vez, Jan. 106.