Ruscombe, and Another,—Appellants; Hare,—Respondent [June 23, 1817; Feb. 6, June 5, 1818].
[Mews' Dig. vii. 1184; see 2 Bli. N. S. 192; considered in Jackson v. Innes, 1819, l Bli. 104, at pp. 114, 124, 130, 131. See also Plowden v. Hyde, 1852, 2 De G. M. & G. 684, at p. 690.]
[Husband, having two mortgages on his estate, devises it to his wife, and dies. Wife, having married again, joins her second husband in another mortgage of the estate, consolidating the two former mortgages into one, at a different rate of interest, reserving the equity of redemption to the husband and his heirs, without any recital or special circumstance to show that it was the intention of the parties to make a new settlement of the estate. Husband, after death of the wife, deals with the property as his own, disposes of part for val. con. and dies. Bill by heir at law of the wife, against the purchaser, representatives of the husband, and mortgagee, to redeem; and decreed accordingly; and the decree affirmed in Dom. Proc., with alterations as to the manner of taking the accounts:—]
[The rule being that, where husband and wife mortgage [2] the wife's estate, and the equity of redemption is reserved to the husband and his heirs, without recital or special circumstance to show the intention to make a new settlement of the estate; the husband has the equity of redemption, as he before had the legal estate, only jure uxoris.]
The bill filed in T. T. 1800 in the Exchequer, against William House, Richard Ruscombe, Alexander Bruford, the younger, Francis Bruford, and William Long, stated, that Nicholas Hare, seized in fee of certain lands and other hereditaments, in the parish of Lyng, in Somersetshire, in 1749, by lease and release mortgaged the premises to William House for £800, with interest at four and a half per cent. and covenanted to levy a fine, sur conuzance de droit come ceo, etc. the uses of which were to enure to House, his heirs and assigns, subject to the proviso for redemption; and the fine was duly levied. In 1762, Hare mortgaged the premises for a further sum of £450 and interest at four and a quarter per cent. to the same House.
Hare, afterwards, by his will, dated 21st June, 1757, devised all his freehold estates and lands of inheritance whatsoever, to his wife Mary Hare, her heirs and assigns; and made her sole executrix and residuary legatee. He died in 1764, leaving the said Mary Hare, the Respondent's mother, his widow, and the Respondent, then an infant of two
