Doe D. Roylance v Lightfoot

[553] doe D. roylance v. l(ghtfoot. Exch. of Pleas. 1841.-Under a devise of all the testator's real and personal estate, " after payment of his just debts and funeral expenses," lands mortgaged in fee to the testator do not pass.-By deeds of lease and release, dated 7th and 8th Sept., 18L9, lands were mortgaged in fee, subject to a proviso, that if the mortgagor should well and truly pay the principal money and interest on the 25th day of March then next, the mortgagee, his heirs and assigns, should and would reconvey and reassure the mortgaged premises to the mortgagor, his heirs and assigns. There was also a covenant that it should be lawful for the mortgagee, his heirs and assigns, from time to time and at all times after default should be marie in the payment of the principal money and interest, contrary to the proviso aforesaid, peaceably and quietly to enter into, have, hold, occupy, possess, and enjoy the said premises: and also a covenant by the mortgagor for further assurance in case of such default:-Held, that the mortgagee had the right of possession, under this deed, from the time of its execution, and not merely from the 25th March, 1820 : and therefore, that an ejectment for the recovery of the premises, brought by the heir-at-law of the mortgagee, within twenty years of the latter but not of the former day, (no interest having been paid in the mean time), was too late. [S. C. 11 L. J. Ex. 151 ; 5 Jur. 966. Approved, Doe d. Parsley v. Day, 1841, 2 Q. B. 147; 2 G. & D. 757. Applied, Hemming v. Bkinton, 1873, 42 L. J. C. P. ICO; In re Belli*'s Trusts, 1877, 5 Ch. D. 509. Referred to, Knight v. Robinson, 1856, 2 K. & J. 503; Reg. v. Ohampneys, 1871, L. R. 6 G. P. 39(5.] Ejectment to recover several cottages, situate at Witton, in the county of Chester. The declaration was served on the 21st March, 1840. At the first trial of the cause, before Lord Denman, C. J., at the Chester Summer Assizes, 1840, it appeared that the lessor of the plaintiff claimed the premises as heir-at-law of Thomas Roylance, to 8M. &W.5M. DOE V. LIGHTFOOT 1159 whom they had been mortgaged by one William Baxter, by deeds of lease and release bearing date- the 7th and 8th of September, 1819. These deeds were attested by two witnesses, one of whom was dead, and the other had become disqualified as a witness by reason of his having been appointed, by the will of Thomas Roylance, the mortgagee, one of his executot-s. For the purpose of shewing this fact, (in order to let in evidence of the handwriting of the attesting witness), the probate of Thomas Roylance's will was put in ; and it appeared that he thereby devised all his real and personal estates, after payment of his just debts and funeral expenses, to Thomas Hayward and Eliza Clementina Hayward, as tenants in common in fee. It was thereupon objected for the defendant, that this devise was sufficient to pass estates in mortgage to the testator, and therefore that the lessor of the plaintiff, as heir-at law, had no title : and the Lord Chief Justice, being of that opinion, directed a nonsuit. In Hilary Term, Jervis obtained a rule nisi to set aside the nonsuit, and for a new trial; citing Roe d. Reads v. Eeade (8 T. R. 118), and In re Iforsfall (M'Clel. & Y. 292). In the same term (Jan. 27), [554] Evans shewed cause. This devise was sufficient to pass the legal estate in the premises in question to the devisee. The devise is of "all the testator's real and personal estate," after payment of debts and legacies. Estates of which he is seised as mortgagee clearly fall within those general words. It is true, that in the case In re Horsfall, where there was a general devise of "all the rest, residue, and remainder of and in all and singular the property, estate, and effects, which the testator should be possessed of or entitled to, or over which he should have a disposing power at his decease, of whatsoever nature or kind the same might be," an opinion was expressed by Alexander, C. B., that the legal estate in mortgaged premises did not pass under the devise, but descended to the heir-at-law. That, however, was not the material question in the case, which was decided on petition against the Master's report: and the judgment is opposed to all the leading authorities on this subject. In Galliers v. Moss (9 B. & Cr. 26'7), again, where, by a residuary clause, the testator bequeathed all his stock in trade, &c., money, and securities for money, debts, personal estate, and effects, of what nature or kind soever, to his executors, upon trust to sell the same, and invest the produce in the purchase of freehold estates, it was held that the legal estate in lands mortgaged to the testator did not pass under that bequest: but the reason was, that the words " securities for money " were coupled with other words which shewed that the testator meant only to bequeath personalty. So it was also held that tie mortgaged premises would not pass under a devise in the same will of the testator's real estate, charged with the payment of annuities and legacies, and limited in strict settlement, because he had...