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estate absolutely vested in the mortgagee at the common law, yet they will confider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to re-call or redeem his estate ; paying to the mortgagee his principal, interest, and expenses : for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less fum.
This reasonable advantage, allowed to mortgagors, is called the equity of redemption, and this enables a mortgagor to call on the mortgagee, who has poffeffion of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest ; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without poffibility of re-call. And also, in some cases of fraudulent mortgages a, the fraudulent mortgagor forfeits all equity of redemption whatsoever. It is not however usual for mortgagees to take poffeffion of the mortgaged eftate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it moreresembles their hypotheca, which was where the poffeffion of the thing pledged remained with the debtor b. But, by statute y Geo. II. c. 20. after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be com-pelled to re-affign his securities. In Glanvil's time, when the universal method of conveyance was by livery of feisin
a Stat. 4 & 5 W. & M. c. 16. conventione tenetur, proprie kyporkeise
b Pignoris appellatione eam proprie rem appellatione contineri dicimus. Int. 4.4. Contineri dicimus, quae fimul eriare traditur ,6. . 7. creditari. At eam, quae fine traditione nuda
or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor ; “fi non sequatur ipfius vadii traditio, curia domini regis hujuf« modi privatas conventionés tueri non folet :” for which the reason given is, to prevent subsequent and fraudulent pledges of the same land; “ cum in tali casu poflit eadem res pluribus « aliis creditoribus tum prius tum pofterius invadiari.” And the frauds which have arisen, since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our antient law.
- IV. A FOURTH species of estates, defeasible on condition subsequent, are those held by statute merchant, and flatute Ataple; which are very nearly related to the vivum vadium before-mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into pursuant to the statute 13 Edw. I. de mercatoribus, and thence called a statute merchant;-the other pursuant to the statute 27 Edw. III. c. 9. before the mayor of the staple, that is to fay, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns, and thence this security is called a statute staple. They are both, I fay, securities for debts, originally permitted only among traders, for the benefit of commerce; whereby the lands of the debtor *are conveyed to the creditor, till out of the rents and profits of them his debt may be satisfied : and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, which extends * the benefit of this mercantile transaction to all the king's fub*jects in general, by virtue of the statute 23 Hen. VIII. c. 6.
V. ANOTHER similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an Cl. 10.6.8. . .
Scc book I, c. S.
estate by elegit. What an elegit is, and why fo called, will be explained in the third part of these commentaries. Ar prefent I need only mention, that it is the name of a writ, founded on the statute e of Westm. 2. by which, after a plaintiff has obtained judgment for his debt of law, the sheriff gives him poffefion of one half of the defendant's lands and tenements, to be held, occupied, and enjoyed, until his debe and damages are fully paid: and, during the time he so holds them, he is called tenant by elegit. It is easy to observe, that this is also a mere conditional estate, defeasible as foon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other - consideration. Before the statute of quia emptores, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them : the ftatute there fore of Westm. 2. permits only so much of them to be affect ed by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (pafled in the same year ) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner.
I SHALL conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the ob servation of fir Edward Coke", “ These tenants have un6c certain interests in lands and tenements, and yet they have « but chattels and no freeholds;" (which makes them an exception to the general rule) « because though they may « hold an eftate of inheritance, or for life, ut liberum tenea. “ mentum, until their debt be paid ; yet it shall go to their « executors: for ut is fimilitudinary; and though, to recover « their eftates, they fhall have the same remedy (by aflife) as ^ a tenant of the freehold fhall have, yet it is but the fimilim
8 13 Edw. I.
, 13 Edw. I, s. 18.
Int. 42, 43.
“ tude of a freehold, and nullum fimile eft idem.” This indeed only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold: but it does not affign the reason why these eftates, in contradistinction to other uncertain interests, shall veft in the executors of the tenant and not the heir ; which is probably owing to this: that, being a security and remedy provided for personal debts owing to the deceased, to which debts the executor is entitled, the law has therefore thus directed their fucceffion; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in them, to whom the debts if recovered would belong. And, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the teftator be discharged, this interest in the lands Ihall be a chattel interest, and on the death of such executor fhall go to his executors i : because they, being liable to pay the original teftator's debts, so far as his assets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.
i Co. Litt. 42.
" CHAPTER THE EL EVENTH.
OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.
ITITHERTO we have considered estates folely with IT regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regård to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arising therefrom) begins. Estates therefore, with respect to this consideration, may either be in posleffion, or in expectancy: and of expectancies there are two forts; one created by act of the parties, called a remainder; the other by act of law, and called a reversion.
I. OF estates in posesion, (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory) there is little or nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such eftates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of attention. .'. La