in equity-which the unprotected condition of married women obviously renders expedient,-that the husband's property, in cases of this description, shall, as between him or his representatives, and his wife or claimants under her, be first liable to satisfy the sum borrowed, and go in exoneration of the estate actually charged (a). Such at least is the construction, where there are no opposing equities to be consulted. But the rule is not inflexible; for if the supposition on which it rests be contradicted, it will yield to the circumstances, and either totally or partially fail of aplication. For example: should the loan appear to have been effected for the purpose of discharging debts contracted by the wife dum sola (b); or the money raised to have been paid to her, with the husband's concurrence, for her private use (c); in both of these cases the estate will be adjudged to have been rightly encumbered. Nor, as it should seem, would the determination vary, though the wife, in the latter instance, afterwards gave up gave up the money to her husband (d).

of

A further exception from the general rule is where, shortly after marriage, a sum is raised by mortgage the wife's land, partly in order to discharge her antecedent debts, and partly for the husband's benefit, and the estate subject to the mortgage is then settled according to articles entered into before the marriage:

(a) Tate v. Austin, 1 P. Wms. 264; Lord Huntingdon's case, 2 Vern. 437; Astley v. Earl Tankerville, 3 Bro. C. C. 545. See also 2 Atk. 384.

(b) Lewis v. Nangle, Amb. 150; 2 P. Wms. 664, n. S. C.; Kinnoul v. Money, 3 Swans. 202, n.

(c) See 1 Ves. jun. 188.
(d) Ibid.

in this case, provided the money received by the husband do not greatly exceed the amount of the wife's debts, he will not be considered bound, out of his separate funds, to pay off any part of the loan: the parties, it will be presumed, had one uniform intention with regard to the whole sum borrowed,-namely, that it should constitute a single and unapportionable charge on the property mortgaged (a).

(a) Lewis v. Nangle, supra.

CHAPTER III.

PRESUMPTIONS OF LAW CONTINUED.

Of the Presumption with respect to the Exoneration of Real Estates from Charges or Incumbrances ; First, where they are paid off by Tenant for Life; Secondly, where by Tenant in Tail.

WHEN tenant for life of an encumbered estate pays off the encumbrance, the presumption of law is, that he does not thereby intend to exonerate the estate. This presumption arises from a consideration of the scantiness of his interest, and that the exoneration would operate solely for the benefit of strangers (a). In the absence, therefore, of any thing to rebut the presumption, he is regarded as the mere substitute of the former encumbrancer, and a creditor on the estate to the amount of the money advanced (b).

With respect to tenant in tail, who pays off an en

(a) 1 Ves. jun. 233. 4.

(b) Kirkham v. Smith, 1 Ves. 258; Amesbury v. Brown, ib. 477, 480-1; Jones v. Morgan, 1 Bro. C. C. 206, 218; Lady Shrewsbury v. Lord Shrewsbury, 3 Bro. C. C. 120, 126; 1 Ves. jun. 227,

S. C.; Ware v. Polhill, 11 Ves. 257, 274. &c.; St. Paul v. Lord Dudley and Ward, 15 Ves. 167; Redington v. Redington, 1 Ball. and Be. 131, 141; Earl of Buckinghamshire v. Hobart, 3 Swans. 186, 199.

cumbrance, (unless he be incapable of suffering a recovery, in which case (a) equity accounts him tenant for life only), the presumption is in favour of an intention to exonerate the estate: for as tenant in tail possesses the means of acquiring the absolute dominion, and may, by recovery, convert the estate tail into a fee simple, he is, for the present purpose, considered to occupy the same position with the owner of the fee (b) and as the discharge of an encumbrance by the latter would be virtually a satisfaction of his own debt; the like act by tenant in tail, he having no immediate interest in keeping the charge on foot, is construed to be done with a view to exoneration (c).

To repel the presumption in each of the foregoing cases, evidence of intention, either direct or circumstantial, is admissible. Thus, if it appear that tenant for life, at the time he paid off the debt, merged the security by taking either an assignment or conveyance to himself; upon this transaction, prima facie, the charge is determined (d). So the existence of a relationship by blood, between the tenant for life and the persons entitled next in remainder, coupled with an apparent desire, on the part of the former, to preserve the estate in the family, is evidence of intention to disen

(a) Lady Shrewsbury v. Lord Shrewsbury, 3 Bro. C. C. 120. See also 3 Swans. 200.

(b) See 3 Bro. C. C. 125. 6; 1 Bro. C. C. 218; 1 Ves. 480.

(c) See 3 Bro. C. C. 125 ; 1 Ves. 260; and the cases cited in the last reference.

(d) See per Lord Eldon, 15 Ves. jun. 173.

cumber. And therefore, where a person, who, from mistake, thought himself tenant for life only, but was in fact tenant in tail, with remainder over to other branches of his family, gave his own bond to secure a debt, which, with several other debts, had been before charged on the estate, and afterwards paid it off; on a dispute between his administrator and the succeeding tenant, whether or not the debt remained a charge on the estate, evidence that the deceased tenant for life had, through a long series of years, paid on account of interest, for debts charged on the estate, sums considerably exceeding the amount of the rents and profits, was received as testimony, serving to show the wish of the party to prevent the estate being sold: and Lord Thurlow, assuming, for the sake of argument, that the person who discharged the debt was only tenant for life, declared himself of opinion, that the circumstances of the case altogether were sufficient to rebut the equitable presumption. A tenant for life, said his Lordship, paying off a charge, without taking an assignment, is, generally speaking, a creditor for the sum so paid; but the smallest demonstration of intention to pay it off will prevent his representative from coming for the money. Here the party paid interest much beyond what the profits of the estate would have discharged, which is a demonstration, prima facie, that he meant to disencumber the estate. Though he was only tenant for life, he knew it was settled on his family, and put himself to extraordinary inconvenience to pay the debt off; and this he did for seventeen years (during all which time, as tenant for life, he

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