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![handle is hein.slavery/ssactsengr0831 and id is 1 raw text is: THOMPSON V. GRANT
it will, of course, decree an account of the rent due under the agreement: and the
action at law is brought for the same object. I think, therefore, that the Master is
right. If the Plaintiff was unwilling to wait for the rent until the decree, he might
move here, that the Defendant should immediately pay that rent which, in every event,
would be due from him in respect of his occupation.
Exception overruled.
[438] THOMPSON V. GRANT. Nov. 17, 1819.
An estate which a testator holds as mortgagee, will not pass under a general devise
of all lands to uses in strict settlement; although the testator at the making of his
will had obtained a decree for an account in a bill of foreclosure ; for the estate does
not lose the quality of a mortgage until the final order of foreclosure.
A devise of all lands, which the testator may hold in mortgage at his death, will not
pass an estate which was held in mortgage by the testator at the making of his will;
but as to which he had obtained a final order of foreclosure before his death.
This was a bill filed by a trustee to establish a will, and to carry the trusts thereof
into execution. The cause now came on upon exceptions to the Master's report.
The testator Alexander Donaldson, being in possession, as mortgagee, of two estates
in the island of Jamaica, called Brampton Bryan and Bryan Castle, filed a bill in
Chancery in England, against Richard Grant, J. Simpson and L. H. Edwards, for a
foreclosure of the mortgage. By a decree in this cause, 6th July 1805, it was ordered
that the Master should [439] take an account of principal, interest and costs; and
the decree then proceeded as follows :- And, upon the Defendants, their or any or
either of them, paying unto the Plaintiff what shall be remaining due to him for
principal and interest, and costs, together with what the Plaintiff shall pay for the
costs of the Defendants Richard Grant and John Simpson, within six months after the
Master shall have made his report of such principal, interest and costs, at such time
and place as the said Master shall appoint, it is ordered that the Plaintiff do reconvey
and reassign the premises therein mentioned to be mortgaged, free and clear of and
from all incumbrances done by him, or any claiming by, from or under him; and
deliver up all deeds and writings in his custody or power relating thereto, upon oath,
to the Defendants, or to such of them as shall redeem Plaintiff as aforesaid, or to
whom they shall appoint; but in default of the Defendants, their or either of their,
paying unto the Plaintiff what shall be remaining due to him for principal, interest
and costs, and the costs of the said Defendants Richard Grant and John Simpson as
aforesaid, by the time aforesaid, the said Defendants are from thenceforth to stand
absolutely debarred and foreclosed of and from all right, title, interest and equity of.
redemption, of, in and to the said mortgaged premises.
The Master, by his report, 31st July 1806, made in pursuance of the said decree,
certified that he found there would be due to the Plaintiff for principal, interest
and costs, on the 31st day of January 1807, the sum of £96,215, 13s. 3d. And he
appointed the Defendants to pay the same to the Plaintiff on the said 31st day of
January 1807.
[440] By an order in the cause, 5th February 1807, after stating that, upon motion
that day made on an affidavit, that the money was not paid on the day appointed, it
was further stated, And that therefore it was prayed that the said Defendants may
stand absolutely debarred and foreclosed of and from all right, title, interest and
equity of redemption, of, in and to the said mortgaged premises; which upon hearing
the said decree, the said Master's report, and the said affidavit read, is ordered
accordingly.
The testator, by his will, 14th December 1805, devised unto certain trustees therein
mentioned, all his plantation, lands and tenements, whether freehold or leasehold,
situate in the island of Jamaica, and all other his real estate and chattels real in
the said island, to hold the same unto and to the use of the said trustees, their heirs,
&c., upon the trusts thereinafter mentioned. And the said testator devised to his said
trustees, their heirs, &c., all the estates which at the time of his decease should be vested
in him upon any trust, or by way of mortgage, of which he had power to dispose by that
767
4 MADD. 438.](ViewImageLocal?handle=hein.slavery/ssactsengr0831&div=1&collection=&method=preview&ext=.png&size=3)