638. In whose favour marshalling applies.

The doctrine of marshalling1 applies in favour of persons claiming one of the properties subject to the double creditor's charge, whether they claim by assignment or charge by the mortgagor for value as in a case where they are mortgagees2, or claim as volunteers under a settlement made by the mortgagor3. Hence, where settled and unsettled estates are comprised in the mortgage, the mortgage will be thrown as far as possible on the unsettled estate, although not as against a subsequent mortgagee, unless the settlement contains a covenant against incumbrances or the mortgage is made subject to it so

Popular documents