eftate abfolutely vefted in the mortgagee at the common law, yet they will confider the real value of the tenements compared with the fum borrowed. And, if the estate be of greater value than the fum 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 expenfes: 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 eftate, to deliver it back and account for the rents and profits received, on payment of his whole debt and intereft; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the fale 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 fame; that is, to lose his equity of redemption without poffibility of re-call. And alfo, in fome cafes of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatfoever. It is not however usual for mortgagees to take poffeffion of the mortgaged eftate, unless where the security is precarious, or fmall; 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 more resembles their hypotheca, which was where the poffeffion of the thing pledged remained with the debtor ". But, by statute 7 Geo. II. c. 20. after payment or tender by the mortgagor of principal, intereft, and cofts, the mortgagee can maintain no ejectment; but may be com-. pelled to re-affign his fecurities. In Glanvil's time, when the univerfal method of conveyance was by livery of feifin a Stat. 4 & 5 W. & M. c. 16. Pignoris appellatione eam proprie rem contineri dicimus, quae fimul etiara traditur creditors. At eam, quae fine traditione nuda conventione tenetur, proprie hypothecae appellatione contineri dicimus,, Inft. 1. 4. 1. 6. §. 7. on or corporal tradition of the lands, no gage or pledge of lands was good unless poffeffion was alfo delivered to the creditor ; "fi non fequatur 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 fame land; "cum in tali cafu poffit eadem res pluribus "aliis creditoribus tum prius tum pofterius invadiaris.” And the frauds which have arisen, fince the exchange of these public and notorious conveyances for more private and fecret bargains, have well evinced the wisdom of our antient law. IV. A FOURTH fpecies of eftates, defeafible on condition fubfequent, are thofe held by ftatute merchant, and ftatute Ataple; which are very nearly related to the vivum vadium before-mentioned, or eftate held till the profits thereof shall difcharge a debt liquidated or afcertained. For both the -ftatute merchant and ftatute ftaple are fecurities for money; the one entered into pursuant to the ftatute 13 Edw. I. de mercatoribus, and thence called a ftatute 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 fecurity is called a statute staple. They are both, I say, fecurities 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 fo holds the lands, he is tenant by statute merchant or ftatute ftaple. There is alfo a fimilar fecurity, 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 ftatute 23 Hen. VIII, c. 6. V. ANOTHER fimilar conditional estate, created by operation of law, for fecurity and fatisfaction of debts, is called an c 1, 10. 6. 8. d Sce book I, c. 8. eftate eftate by elegit. What an elegit is, and why fo called, will be explained in the third part of these commentaries. At prefent I need only mention, that it is the name of a writ, founded on the ftatute of Weftm. 2. by which, after a plaintiff has obtained judgment for his debt of law, the sheriff gives him poffeffion 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 fo holds them, he is called tenant by elegit. It is eafy to obferve, that this is also a mere conditional estate, defeafible as foon as the debt is levied. But it is remarkable, that the feodal reftraints 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 confideration. Before the ftatute 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 ftatute de mercatoribus (passed in the fame 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 fervation of fir Edward Coke, "These tenants have un❝ 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 tene"mentum, until their debt be paid; yet it fhall go to their Εσ executors: for ut is fimilitudinary; and though, to recover "their eftates, they shall have the fame remedy (by affise) as "a tenant of the freehold shall have, yet it is but the fimili e 13 Edw. I. c. 18. f 18 Edw. I. VOL. II. L 8 13 Edw. I. 4 tude ❝tude of a freehold, and nullum fimile eft idem." This indeed only proves them to be chattel interefts, because they go to the executors, which is inconfiftent with the nature of a freehold: but it does not affign the reason why these eftates, in contradistinction to other uncertain interefts, fhall 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 fame principle, if lands be devised to a man's executor, until out of their profits the debts due from the teftator be discharged, this intereft in the lands fhall be a chattel interest, and on the death of such executor fhall go to his executors: because they, being liable to pay the original teftator's debts, fo far as his affets will extend, are in reafon entitled to poffefs that fund, out of which he has directed them to be paid. i Co. Litt. 42. 1 CHAPTER THE ELEVENTH. OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. HITHERTO we have confidered eftates folely with regard to their duration, or the quantity of interest which the owners have therein. We are now to confider them in another view; with regard 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 arifing therefrom) begins. Eftates therefore, with respect to this confideration, may either be in poffeffion, 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 reverfion. I. Or eftates in poffeffion, (which are fometimes called eftates executed, whereby a present interest paffes to and refides in the tenant, not depending on any subsequent circumftance or contingency, as in the case of eftates executory) there is little or nothing peculiar to be observed. All the eftates we have hitherto spoken of are of this kind; for, in laying down general rules, we ufually apply them to fuch eftates as are then actually in the tenant's poffeffion. But the doctrine of estates in expectancy contains fome of the nicest and most abftruse learning in the English law. Thefe will therefore require a minute difcuffion, and demand fome degree of attention. |