Mansell's Estate

The opinion of the Court was delivered by

It is a perfectly settled rule of equity, that the devisee of lands which the devisor has before or after making his will charged with a mortgage, is entitled to have his land exonerated therefrom out of the testator’s personal estate, unless the will indicates an intention that the devisee should take cum onere. Such intention must, however, he manifested by the will in a clear and unambiguous manner. Hence it has been held that a devise of lands subject to the mortgage or encumbrance thereon, does not throw the charge on the estate devised, to the exemption of the testator’s personal estate, which is always the natural fund for the payment of the debts of a testator; the testator being considered as using such terms merely as descriptive of the encumbered condition of the property, and not for the purpose of subjecting his devisee to the burthen of the charge: Serle v. St. Eloy, 2 P. W. 386; Duke of Lancaster v. Mayer, 1 Brown C. C. 454; Astley v. The Earl of Tankerville, 3 Brown C. C. 545; Beckham v. Crutwell, 3 Mylne & Craig, 763; Wythe v. Henniker, 2 Mylne 6 Keene, 635.

In regard, however, to land acquired by a testator subject to a *370subsisting encumbrance created by a former owner, the devisee of such land takes it charged with the encumbrance, without any claim for its satisfaction out of the testator’s personal estate, unless indeed the latter has so dealt wdth the encumbrance as to make it his proper debt. To produce this result so as to charge his personal estate as the primary fund for the payment of such an encumbrance, the testator must have made himself by contract personally and directly liable at law for the debt to the owner of the encumbrance: Cumberland v. Codrington, 3 John. Chan. Ca. 272.

The principle upon which the first class of cases rests, viz. cases in which the encumbrance has been created by the owner of the land, is obvious. The personal estate of the devisor is liable to the payment of the encumbrance, because the contract is primarily a personal contract, and being primarily a personal contract, the land is only bound in aid of the personal obligation to fulfil' that personal contract. And the primary fund ought always in conscience to exonerate the auxiliary. But in cases of the mere purchase of an equity of redemption, where the land is bought subject to an existing mortgage, and where the purchaser has no connexion, contract, or communication with the mortgagee; and does no act to show an intention to transfer that debt from the estate to himself; • no personal obligation arises between such purchaser and the mortgagee, that can render the former personally responsible to the latter, or charge the personal assets of the former with, the payment of the encumbrance in the event of his death. What circumstances amount to such a personal obligation in a purchaser of land to pay a subsisting mortgage thereon to the owner of the encumbrance, is a question which has frequently occupied the attention of Courts of Equity. The cases of Wood v. Huntingdon, 3 Ves. Jr. 128, Waring v. Ward, 7 Ves. 302, Earl of Oxford v. Lady Rodney, 14 Ib. 417, may be referred to as exhibiting states of circumstances deemed adequate to produce such a result. While the cases of Bagot v. Oughton, 1 P. W. 347, Evelyn v. Evelyn, 2 Ib. 659, Shafto v. Shafto, 2 Ib. 664, Tankerville v. Fawcet, 2 Bro. C. C. 57, Tweddell v. Tredwell, 2 Ib. 101, 152, and Billinghurst v. Walker, 2 Ib. 604, exhibit states of circumstances which, though urgent, were not deemed sufficiently clear to constitute a previous mortgage on land, the personal obligation of a subsequent owner of the land by descent or purchase.

If the case before us is considered as it presents itself on the face of the deed, bond, mortgage, and will, it presents the ordinary one of the purchase of land, in which the purchaser, having paid *371part of the purchase-money gives his bond, secured by a mortgage on the premises, for the payment of the balance at a time and in a manner therein stipulated. Such a bond is beyond all question his personal obligation, not merely enforceable against the land specially pledged for its payment, but against all his estate. And as the test by which an obligation charged on land is determined to be payable out of the personal estate of the obligor, in the event of his death, is the fact that such obligation is the personal and direct contract of the obligor, it seems to follow that this bond must be so satisfied in favour of the devisee, since the bond and mortgage constituted a personal debt of the testator, and a security for its payment. While the bond remains in force, the mortgagees may proceed upon it against the representatives of the obli-gor, whenever default may be made in the payment of interest or principal.

But a different state of consequences is supposed to follow in the case of the purchaser of land under proceeding for the partition of an intestate’s estate, where a bond and mortgage on the land has been given by the purchaser thereof, to secure the interest of the purpart of the intestate’s widow during her life, and after her decease the payment of the principal of such purpart to his heirs.

It is true, the interest of an intestate’s widow is, under such circumstances, so far considered in the nature of a rent charge (Sharp v. Sharp, 12 S. & R. 9; Turner v. Hauser, 1 Watts, 420; Stewart v. Martin, 2 Watts, 200; Thomas v. Simpson, 3 Barr, 60), that it may be taken in execution, cannot be taxed as personalty (Deitz v. Beard, 2 Watts, 170), and may be enforced by distress. And that no act of the vendee of the land or his creditors can divert it: Swarr’s Appeal, 1 Barr, 93; Fisher v. Kean, 1 Watts, 259; Mix v. Ackler, 7 Watts, 316. But nothing is here proposed that can have the effect of divesting any right or interest which Mrs. Oat may have in the land devised by Mr. Mansell to his daughter, Mrs. Hey-berger. The equity asked by the devisee admits Mrs. Oat’s rights to any and every extent, and therefore seeks to have the devised estate exonerated from her lien by the natural fund from which it is payable as the personal debt of the devisor; admits that the widow of Jesse Oat may, if she sees fit, have recourse to the land, in order to obtain payment of her annual interest, and that the heirs of Oat may in the same way obtain payment of the principal at her decease. Yet they may equally have recourse to the personal estate of the testator, not merely in aid of the land, or in case that security may prove deficient, but in the first instance, and at the option of the *372creditor: M’Carty v. Gordon, 4 Whart. Rep. 321; Good v. Good, 7 Watts, 195. If, so far, the testator’s bond is to he regarded as an original and primary obligation -which could have been enforced against him personally when living, and of which payment maybe enforced after his death against his general estate, why is this bond not to be regarded as his personal obligation in a case in which the question as to its legal nature and effect arises between the devisee of land, which has been mortgaged by the testator to secure its payment, and his personal representatives ? Conceding that if no such bond had been given by the testator on becoming the purchaser of Oat’s'estate, that the widow Oat’s purpart would have remained a charge on the land, enforceable only against the same, and creating no obligation- binding Mansell personally, yet it was competent for Mansell so tb enlarge and alter this security as to make it his own direct and personal obligation. This he certainly did, on executing the bond to Oat’s administrators, not as a further security, but as an original and primary contract. In doing so then, Mansell manifested an intention to assume a personal obligation much less equivocal than was deemed adequate in the cases of Wood v. Hungerford, Waring v. Ward, and the Earl of Oxford v. Lady Rodney, to make a pre-existing encumbrance on land the proper debt of a subsequent owner, as-well, with respect to the encumbrance, as to a devisee of the land, claiming to have the devised estate exonerated from the debt, by the personal estate of the devisor.

Whether, therefore, this is considered as the simple case of the devise of an estate charged with a previous mortgage created by the devisor, or whether it is considered as one of a direct personal contract to pay a pre-existing encumbrance on land subsequently devised by him; it alike presents the case in which the devisee is entitled to be exonerated from such encumbrance from the testator’s personal estate. The Court accordingly confirm the report and decrees, that the executor of J. Mansell set apart out of the unadministered personal estate in his hands, a sum sufficient to pay and satisfy the bond given by Mansell to the administrators of Jesse Oat; that this sum be invested by him under the order of the Court, and that the interest of such investment be applied to the payment of the annual interest on the said bond to Mrs. Oat.