
    COURT OF APPEALS,
    NOV. TERM, 1803.
    Todd et ux. vs. Pratt.
    . The court of Chancery will not grant an  inj
    A tenant in tail may by a mortgage of the entailed lands, dock the estate tail, and convey the lands no fee, subject to be avoided on the payment of the mortgage money by hint.
    Appear from a decree of tin* court of chancery. - The bill stated, that Rachel Baynard, the complainant in the court of chancery, \yho afterwards married Wil Ham Todd, (the now appellants.) in September 1796, by her bill set forth, that George Baynard, deceased, on the 24th of October 1787, mortgaged to Pratt, the defendant, part of a tract of land called Relief\ containing 576 acres, Baynard?s Pasture containing 101 acres, part of Roe’s Chance containing 97 acres, and . . ’ sundry negroes, m consideration ot 7 33 current J ° money. That George Baynard, on the 1st of June 1793, made a second mortgage to Pratt of the said lands and premises, and negroes, in consideration of 1016Í 11s 4d current money. That both the said sums were not due; that there had been dealings between Baynard <$• Pratt, and that Baynard was indebted, to Pratt, but not to the amount expressed in tiie said mortgages. That payments had been made, and 110 credit given; and 25 per cent, interest had been charged, &c. That Baynard died before the expira» tion of the day of payment in the last mortgage, in» testate, and without issue, leaving the said Rachel, his sister, and heir at Saw. That, Pratt had brought an eje.ctment, and recovered judgment, for the lauds in the said mortgages, also replevin for the negroes, which is depending in the eastern shore, general court. grayer, that Pratt he compelled to account, &c. and upon payment of the sum due, he compelled to recoil-vey the lands, &c. to the said Rachel, and that injunction issue* &c.
    HaNSON, Chancellor, (September 16th, 1!T96,) passed the following order;
    The bill states a mortgage or mortgages of land and negroes, duly executed, to secure to the defendant the payment of certain sums of money, and that ¡he defendant has instituted an action of replevin for the negroes, and obtained judgment in an ejectment brought for the land. It prays an injunction to prevent him from further proceedings at law, on the ground that the money, or great part of it, for which the mortgage was given, is not due to the mortgagee. Supposing the act of George II. to have been introduced, used, and practised under in this state, the complainant, with respect to the land, had her remedy at law, she might have brought into the general court the money due, an account of which would have been taken under the authority of that court. Supposing that statute not to ha\e been extended to this state, where is the case which will authorise this court to enjoin the mortgagee before hearing from taking an execution on his judgment: at law? The very preamble of the said statute recites, that courts of equity grant, no relief before hearing; and although this court may have gone further than the courts of equity in England, and further than is proper in granting injunctions before hearing, there has been no case in which it has gone so far as it is prayed to go in the present case. Independently of this consideration, the chancellor conceives it unreasonable, under the circumstances stated in the bill, to interfere with the proceedings at law. Why did the complainant delay her application to this court, when a bill filed here in due time for redemption, if' she has accurately stated every fact relative to her case, might have effectually prevented any inconvenience of which she complains? Upon the whole, the.chancellor is of opinion that he cannot, with propriety, grant the injunction prayed, or any other relief, before the -defendant shail have been summoned and heard.
    The defendant afterwards answered, that he had taken the mortgages, and had recovered judgment for the land, and had replevied the negroes, but only with a view to compel payment of the money due him. And he stated how the sums of money in the mortgages became due to him, and exhibited his accounts, &c.
    Upon the marriage of the said Rachel with William Todd, the suit abated, and a bill of revivor was filed by Todd and Wife against Pratt, who appeared, &c. Upon a general replication being entered to the answer, the. auditor was directed to state the accounts, &c. who did state two accounts, one of which stated that 1591Í 5s Id current money, including interest, was due on the 20th May 1801, on the mortgages; and the other, that 16271 5s 3d current money, including a balance due on an open account, was due on the same day, including interest, &c. deducting the amount of the sales of the negroes made in virtue of an interlocutory decree of the court of chancery.
    
      Key. for the Complainants,
    objected to a decree confirming the. report of the auditor, so far as the same should affect the tract of land called Relief.
    
    1. Because that tract was originally the estate of Thomas Baijnard, who was seised thereof in fee, and by his last will and testament entailed it on his son George, from whom it descended to his son George, the mortgagor, in tail.'
    
    2. That the said entail had never, been barred or docked either by George, the devisee., or George, the mortgagor; and that the mortgage, did not bar or dock the entail.
    
    
      
      S, That the complainant, Rachel) is heir in tail of the said tract of land.
    4. That the knowledge of this entail did not come to either of the complainants until since their intermarriage and the reference of the accounts to the auditor.
    
      Key and Johnson, for the Appellants.
    Martin, (Attorney General,) for the Appellee.
   Hanson, Chancellor,

(October 1801,) passed the following decree: **The chancellor has considered the complainants’ exceptions; and the same are disallowed. There can, he conceives, be no doubt, that if tenant in tail can give an absolute conveyance in fee under the act of assembly, as tenant in fee, lie may also give a conveyance in fee, subject to be avoided on the future payment of money by the said tenant; or, in other words, that tenant in tail may mortgage bis land. Could the chancellor conceive the point at all doubtful, he would require the opinion of the general court.

'«It is the auditor’s account,No. 2, which the chancellor hereby ratifies, and he conceives the complainants are not entitled to redeem, witiiout paying the balance therein stated, of 1627Í 5s 3d, with interest from the 20th of May last, when the account was stated.” And in conformity will» the agreement of the parties, and the- decision of the chancellor, he decreed accordingly. From which decree the complainants appealed to this court.

The Court of Appeals, at this term, affirmed th® decree of the Court of Chancery.  