cided by Lord Thurlow, in 1786, the devisee of land subject tɔ a mortgage executed by the testator, covenanted with the owner of the mortgage, that the estate should remain a security for the debt and interest, with an additional one per cent. of interest. The question was whether the personal estate of the devisee, who had died in the meantime, should not pay the debt and interest, or at least the arrears of interest with the additional one per cent. But the lord chancellor was clearly of opinion that the personal estate ought not to discharge the mortgage, for the land was the primary fund, and that the interest must follow the nature of the principal, and that the contract for the additional interest was also in the nature of a real charge.

Lord Kenyon, as master of the rolls, laid down the same rule, about the same time, in the case of Tankerville v. Fawcet, 2 Bro. 57. He there declared that "where an estate descends, or comes to one, subject to a mortgage, although the mortgage be afterwards assigned, and the party enters into a covenant to pay the money borrowed, yet that shall not bind his personal estate." In that case, the devisee of land having voluntarily and very honorably charged a simple contract-debt of the testator upon the land devised, and died, the question was whether his personal estate should exonerate his real of this debt. It was held not to be the proper debt of the devisee, and that his personal estate was not to be charged.

Both these cases contain much stronger acts of the substituted debtor than the one before me. But in Tweddell v. Tweddell, 2 Bro. 101, 152, Lord Thurlow examined the subject more at large, discussed the point with his customary boldness and sagacity, and declared the rule of equity with a certainty and precision which have rendered his decisions a leading authority in all the subsequent cases.

In that case, A. purchased the equity of redemption in an estate under mortgage, and agreed with the mortgagor to pay, as part of the consideration for the purchase, the mortgagedebt to the son and heir of the mortgagee, and the residue of the consideration-money to the mortgagor. He also covenanted with the mortgagor that he would pay the mortgage-debt to the heir of the mortgagee, and would indemnify the mortgagor and his representatives from the mortgage.

On a bill by the devisee of A. to have his personal estate applied in discharge of the mortgage, it was urged upon the argument, that where the real estate was, from the nature of the

contract, primarily liable, it should be first applied, and that though covenants are added, yet, if they are meant as collateral securities to the land, they could not have the affect of altering the fund. The chancellor held, in that case, that the personal estate of A. was not bound to exonerate the real; and he said it was a clear rule that the personal estate is never charged in equity, where it is not at law; that there was no principle, or case, in that court, to warrant its being chargeable in equity, contrary to the order of the law; that the grounds, upon which former cases had been decided, apply to that case; that the rule of marshalling assets was, that it must be a debt affecting both the real and personal estate; that, in that case, the personal estate never was liable by an action against the party, and so he thought as to the case of Rochford v. Belvedere, though the house of lords had held the personal estate liable; that the buyer here took the land subject to the charge, but the debt, as to him, was a real, not a personal debt; that his contract with the mortgagor was only that the debt should not fall upon him, and it was a mere contract of indemnity, and he would have been bound without any specific contract, to indemnity him.

This case is very much in point, and, if the rule of equity be correctly stated, it puts an end to the present discussion. It is indeed a much stronger case than the present, for here is nc stipulation with the seller to pay to the owner of the mortgage, the mortgage-debt, as being part of the consideration money, and here is no express covenant to pay the mortgage-debt. Here is only a naked and dry covenant of indemnity.

If I was to question the case of Tweddell v. Tweddell, it would not be from any presumed error in the principle, but from a doubt of its application. When the indentures between the mortgagor and purchaser recited an agreement, by which A. had agreed to pay out of the purchase-money, to the son and heir of the mortgagee, the principal and interest due on the mortgage, being two thousand one hundred and fifty-five pounds, and the residue of the purchase-money being one thousand three hundred and forty-five pounds, to the mortgagor, it might be a question whether the son and heir could not have sued at law for that money, as so much received for his use. It has been held, that if one person makes a promise to another for the benefit of a third person, that third person may maintain an action at law on that promise: Dutton v. Poole, 2 Lev. 210; 1 Vent. 318; T. Jones, 103; Starkey v. Mill, Styles, 296; Martin v. Hind, Cowp. 437; Marchington v. Vernon, 1 Bos. & P. 101, note;

Lord Alvanley in 3 Id. 149 and note; Schermerhorn v. Vanderheyden, 1 Johns. 140 [3 Am. Dec. 304]. But the great value of this case consists in the principle it has so fully and explicitly declared. As Lord Kenyon observed in another cause: "The use of cases is to establish principles, and if the cases decide different from the principles, I must follow the principles, not the decisions."

In the next decision of Lord Thurlow, which followed some time after, Billinghurst v. Walker, 2 Bro. 604, he pushed his doctrine to the utmost length. The rectory of F. was held by a lease for lives, subject to a charge of two thousand two hundred pounds, to Martha Vernon. It was conveyed by the owner of the lease to George Woodroffe, subject to the same charge, and to a charge of nine hundred pounds to one Pery; and in the indenture by which it was conveyed, and to which Martha Vernon was a party, he covenanted to pay the charge to Martha Vernon as well as the other charge. He discharged the debt to Pery, and afterwards gave a bond to Martha Vernon, to pay the interest of the two thousand two hundred pounds during her life, and the principal at his death. After repeated renewals of the lease, G. W. died, having devised the rectory to two of the defendants, and appointed two others of the defendants his executors. The charge being called in and paid to a legatee of Martha Vernon by the executors of G. W., the defendants were called on by the plaintiffs, as pecuniary legatees of G. W. who were unpaid, to have the two thousand two hundred pounds replaced by the devisees of the rectory, and paid over to them. But the defendants insisted that in consequence of all these transactions, this charge had become the personal debt of G. W.

This was a very strong case in favor of the doctrine set up in that instance by the defendants. There was not only a covenant by G. W., the purchaser of the lease subject to the debt, to pay the debt, and a covenant in the same instrument to which the creditor, or owner of the charge, was a party, but there was afterwards a bond given to her altering and extending the original time of payment. This would seem to have amounted to that "demonstration of the intention" requisite to make the debt a personal obligation. But it was held that giving the bond was not sufficient; that it was merely a collateral security which did not vary the nature of the charge, which continued a debt primarily a debt upon the estate; and the defendants were, cons quently, decreed to pay over the money. It was admitted th-t

G. W. made himself personally liable to the creditor; but still it did not throw the charge on his personal estate, because there was not a demonstration of such intention. So that it seems not to be sufficient that the stranger, who takes the estate subject to a debt, should become legally responsible to the creditor, unless that responsibility be accompanied with evidence of an intention to assume the debt as a personal debt of his own, and detached, as it were, from the land.

The case of Mattheson v. Hardwicke, note to 2 P. Wms. 664, was decided about the same time as the one I have just considered, by Lord Kenyon, as master of the rolls. The testator there devised an estate to A. and B. in fee, charged with the payment of debts and legacies. A. paid all the debts and legacies, except one legacy of one hundred pounds, for which he gave his note to the legatee, and died. It was admitted that he had paid off the other incumbrances, with a view of easing the estate from them altogether; but the note there was held to be merely a collateral security, and that the devised estate was the primary fund for the payment of it.

The question in these latter cases seems to be not merely whether the purchaser has rendered himself liable at law to a suit by the creditor, but which estate is to be deemed the primary fund, and which only the auxiliary. When a man gives a bond and mortgage for a debt of his own contracting, the mortgage is understood to be merely a collateral security for the personal obligation. But when a man purchases, or has devised to him, land with an incumbrance on it, he becomes a debtor only in respect to the land; and if he promises to pay it, it is a promise rather on account of the land, which continues, notwithstanding, in many cases, to be the primary fund. The same equity which, in other cases, makes the personal estate contribute to ease the land, as between the real and personal representatives, will here make the land relieve the personal estates. There is good sense and justice in the principle; and I feel the force of the doctrine, that it requires very strong and decided proof of intention, before the court can undertake to shift the natural course and order of obligation between the two estates. We have already witnessed the tenacity with which the court adheres to the natural order of the funds when a stranger comes in and takes the incumbered land; and the books are full of cases, on the other hand, which subject the personal estates primarily, and as "the natural fund," to the payment of debts originally contracted by the party, and even

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though the debt should be created by mortgage, without either bond or covenant: 1 P. Wms. 291; Prec. in Ch. 7, 61; 3 P. Wms. 358; 1 Ves. 251; 2 Atk. 430; 1 Bro. 454.

I proceed to the case of Woods v. Huntingford, 3 Ves. 128, in which Lord Alvanley brings the subject into discussion. R. H. had mortgaged land to raise money for the use of his son John. The land was afterwards conveyed, subject to the mortgage, to the use of John, who joined with his father in a covenant for the payment of the money. The land was next reconveyed to R. H., who covenanted to discharge the mortgage, and afterwards borrowed a further sum from the mortgagee, and made a new mortgage for the entire debt. The question was between the heir and personal representatives of R. H., which estate should bear the debt. It is difficult to perceive a point in the case; and the master of the rolls was clearly of opinion that R. H. had made the debt his own, though it was primarily the debt of his son in equity, and of himself and his son at law. He properly adds, that if these facts were not sufficient to make the debt his own, a man never could make a debt his own, without express declaration. He was very careful not to contradict in any degree the principle established in Tweddell v. Tweddell, which was a very governing case. In that case there was no communication with the mortgagee, but only a covenant of indemnity, and he did not by that act take the debt upon himself personally.

In Butler v. Butler, 5 Ves. jun. 534, the case of. Tweddell v. Tweddell is again recognized and followed by the master of the rolls. This was the purchase of an equity of redemption, and an agreement with the vendor to pay the mortgage debt of two thousand pounds, and, also, one thousand pounds to the vendor; but here, likewise, there was no communication with the mortgagee. It was admitted that Tweddell v. Tweddell was in point, and that the mortgage-debt remained primarily chargeable upon the real estate. It was not the proper debt of Butler, the purchaser, and he could not have been personally sued by the mortgagee. Lord Alvanley collected from the decisions, that if a man purchases an estate subject to a charge, and does no more than covenant with the vendor that he shall be indemnified, it is not his debt, except in respect to the estate, and the estate, and not his personal property must bear it. He admitted that the purchaser might have been liable circuitously to the vendor for his indemnity, but he said the decree would have been then for sale of the estate.