DIRECTOR   Femke Atteberry


Matter had been directed to enquire into the priority of their demands) bought in a judgment given in 1694, and made claim before the Mafter, to have it tacked to his mortgage, and thereby to be paid before the defendants; as to which the Mafter refufed to make any report: whereupon the plaintiff filed his bill, and one queftion was, whether he could tack the incumbrance bought in after the decree to his mortgage? Lord Chancellor Hardivicke, as to this part of the cafe, faid, that there was no cafe wherein it had been determined that a puifne incumbrancer, a party in a caufe, and a decree made, in that caufe, for fatisfaction of incumbrancers according to their refpccJive priorities, 'having taken in a prior to tack to his puifne incumbrance, mould be allowed to make ufe of it in any other fliape, than that in which the original1 incumbrancer might ufe it, had no fuch purchafebeen made. He thought it would be moft mifchievous and pernicious, if the court mould allow the doctrine of tacking to be carried to that extent; firft, taking it upon the terms of the decree ; all thofe decrees, where there were feveral incumbrances before the court, a fale directed, and every thing neceffary to clear the eftate, in order to that fale, proceeded on the foundation, that the rights of the parties were to be taken as they flood at the time of the decree; and therefore they directed an enquiry into the priorities. What then were thofe priorities ? Why fuch as they flood' at the time of the decree: not that afterwards the priority fliould be varied. The fenie, reafon, and juftice of the cafe required it fliould be fo; for otherwife, if (where an incumbrancer,or an eflate, which was affected with feveral charges, brought a bill for fatisfaction thereof, and there were all proper parties and a decree for it, as between himfelf and the owner of the equity of redemption, fome of the incumbrances being prior, others pofterior to his) one of thofe defendants, who happened to be prior to him, was allowed to convey to another defendant, who was puifne to him, it would flmt out the plaintiff after the decree made, at which time the rights were confidered. What would be the confequence? Nothing could lay a foundation for greater eollufiori and contrivance, between the parties, to exclude each other, than fuch a liberty would, and that to the great deceit of the plaintiff; for then a man would lofe his cofts by fuch a proceeding, altho* he had a right to his debt, principal, intereft, and cofts, according to the refpective priorities; that was the direction of this decree: and there was a fufficient fund, according tc* the then right of the plaintiff, to pay all that was due; but if this were permitted, after a decree was made, two of thefe defendants might, by a collufion, give a third incumbrancer more than his debt, and it would be worth while to do fo, in order to exclude another, who happened to be a fecond incumbrancer. It would be carrying fecurhies to market in that manner, whereby the purchaser of them fhould not only ftand in the place of the party felling, but would acquire a new equity, which it would be mifchievous to allow; and therefore his lordfliip faid, he never was clearer in opinion than upon this part of the cafe, as to the general right.