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CHAP. XXII.

ESTATES UPON CONDITION.

[See 2 Black. Com. ch. 10; 1 Steph. Com. ch. 6; Litt. Ten. pp. 137, 138.]

Estates on condition are,-1. On condition implied; 2. On condition expressed; or as they are called by Littleton, estates upon condition in law, and condition in deed (a). Estates upon condition in law are such as have a condition by the law annexed to them, although it be not specified in writing; as, if a man grant by his deed to another an office, the law annexes a condition, that he shall do that which to such office belongeth, or otherwise the grantor and his heirs may oust him, and grant it to another. An estate on condition expressed, or in deed, is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition; as if a man grant to his lessee for years, that upon payment of 100 marks within the term, he shall have the fee; or grants an estate to a man and his heirs, tenants of the manor of Dale (by some

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termed a conditional limitation); or if a man by deed indented, enfeoffs another in fee simple, reserving to him and his heirs a certain yearly rent, payable at a particular time, on condition that if the rent be behind, the feoffor and his heirs may reenter. These conditions, therefore, it will be seen, are either precedent or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged. Subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Among the estates defeasible by condition subsequent are, mortgages, of which one is termed vivum vadium, and the other mortuum vadium. (b). The former is of no practical importance.

Mortgages.]-Mortgage, or dead pledge, in Latin mortuum vadium, is where a man borrows of an other a specific sum, and grants him an estate in fee, or for a long term of years, on condition that if he the mortgagor shall repay the money on a certain day, he may re-enter on the estate so mortgaged, or, as is now the more usual way, that the mortgagee shall re-convey the estate to the mortgagor; in this case the land is at law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But so long as it continues conditional, that is, between the time of lending the money and time allotted for payment, the mortgagee is called tenant in mortgage.

As soon as the estate is created, the mortgagee may enter on the lands, except there be a stipulation to the contrary (c); but is liable to be dispossessed, upon the performance of the condition by payment of the mortgage-money at the day limited, and

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therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment, when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet courts of equity will allow the mortgagor at any time within twenty years after the mortgagee's taking possession, or after an acknowledgment in writing (d), to recall or redeem his estate, paying to the mortgagee his principal, interest, and expenses. This reasonable advantage, allowed to mortgagors, is called the equity of redemption, and this enables a mortgagor to call on the mortgagee, who has possession 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 possibility of recall (e); and also, in some cases of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatsoever (f). Where the mortgagor neglects the payment of principal and interest, the mortgagee may bring an ejectment, and take the land into his own hands, in the nature of a pledge (g). But by statute 7 Geo. 2, c. 20, after payment or tender by the mortgagor of principal, interest,

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and costs, the mortgagee can maintain no ejectment, and may be compelled to re-assign his securities (h).

Statute merchant and statute staple.]—These are estates ereated by 13 Edw. 1, st. 3, c. 1, and 27 Edw. 3, c. 9, whereby the lands of a debtor are conveyed to his creditors, till out of the rents and profits of them the debt may be satisfied. There is also a recognisance in the nature of a statute staple, the benefits of which were extended by 23 Hen. 8, c. 6, amended by 8 Geo. 1, c. 25. These securities are now, however, fallen into desuetude.

Estate by elegit.]-An estate by elegit is an estate obtained by process of law after a plaintiff has obtained judgment for his debt; for on a writ of elegit the sheriff gives him possession of the defendant's lands and tenements until the debt and damages be fully paid. Formerly only one moiety of the defendant's lands could be delivered, but by the 1 & 2 Vict. c. 110, s. 11, the whole may in general be delivered to the plaintiff (¿).

We have hitherto spoken of what are termed legal mortgages, but it should be mentioned that there are also equitable mortgages, by which are commonly meant mortgages by deposit of title deeds, and indeed, strictly speaking, all mortgages after one in fee are equitable (k).

CHAP. XXIII.

ESTATES IN EXPECTANCY.

[See 2 Black. Com. ch. 11; 1 Steph. Com. ch. 7.]

We are now to consider estates with respect to the time of their enjoyment, and in this point of view they may be either in possession or expectancy. Estates in possession are where a present right of possession passes to and resides in the tenant, not depending on any subsequent circumstance or contingency. Estates in expectancy are of two kinds-1, a remainder; 2, a reversion.

Remainders.-A remainder, which is created by the act of the parties, may be defined to be an estate limited to take effect and be enjoyed after another estate created at the same time is determined; as if a man seised in fee lets lands or tenements for term of years, the remainder over to another for life, in tail or in fee; here is first a particular estate, derived out of a general and greater estate, viz., a fee, and afterwards the residue or remainder disposed of; but it must be observed that, in contemplation of law, the particular estate, and all remainders on it, make but one estate in law (a). The following rules are to be observed in the creation of remainders:

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