88 what it is. ESTATES UPON CONDITION. a [Book III. the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently; or, in deForeclosure, fault thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatsoever. It is not however usual for mortgagees to take possession of the mortgaged estate, 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.b But by statute 7 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 compelled to re-assign his securities. [160] How mortgages are made. Mortgages, what clauses are introduced. Mortgages are made, either in fee, or for a term of years. A mortgage in fee is in general a preferable security to a mortgage for a term of years, and since the inintroduction of trusts and powers of sale, the advantage is more peculiarly striking. Indeed, the only obvious advantage to the mortgagee, in a term of years, is that on his decease, the lands devolve on his personal representatives, who are also entitled to the beneficial interest in the mortgage sum. The latter is also a less expensive security, as a mortgage in fee is now almost always effected by lease and release, and two deeds are therefore necessary. In a mortgage the following clauses are usually introduced :-The mortgagor conveys the lands to the mortgagee in fee; provided that, if the mortgage money and interest shall be paid on a particular day, usually six months after the conveyance, the deed shall be void: or, according to the more modern form, and particularly if the mortgage is in fee, that the mortgagee will convey the premises to the mortgagor free from all incumbrances: the mortgagor then covenants that he will pay the sum bor a Stat. 4 & 5 W. & M. c. 16. b Pignoris appellatione eam proprie rem contineri dicimus, quae simul etiam traditor creditori. At eum, quae sine traditione nuda conventione tenetur, proprie hypothecae appellatione contineri dicimus. Inst. 1. 4, t. 6, s. 7. rowed and interest, and for title: that is, that he is seised in fee and has good right to convey, and that if the sum borrowed or interest thereon be not paid, the mortgagee may enter upon the premises and quietly enjoy them, free from all incumbrances whatever; and moreover, that if the sum and interest be not paid, then that he, the mortgagor, will do any other act for assuring the lands to the mortgagee that he may require. Then follows a proviso for quiet enjoyment by the mortgagor until default shall be made in the payment of the mortgage money and interest. These are the clauses that are usually introduced. But of late a power is frequently given to the mortgagee to sell the mortgaged premises, if default in payment of the money be made, and if they consist of houses or buildings, provisions for insurance and for repairing should be inserted, to indemnify the mortgagee for their loss, or to preserve their value, and under them he may himself insure or repair; and the mortgagor cannot redeem without paying the sums so advanced, together with the mortgage debt. The mutual interest will be attended to by giving the mortgagor power to lease, which, of himself, he cannot exercise with effect, being a tenant for years until default is made in payment of the money, and a tenant by sufferance afterwards ;e but this power may also be given to the mortgagee. When a power of sale enabling the mortgagee to sell the premises is introduced, the mortgagor may neglect his other remedies and exercise his power, which, if the security be sufficient, will give him complete justice in his own hands, as he may exercise this power without the concurrence of the mortgagor, although notice to him is sometimes required. merchant and 2. A fourth species of estates, defeasible on condition 2. Statute subsequent, are those held by statute merchant, and statute statute stapłe. staple; which are very nearly related to the vivum vadium Gordon v. Graham, 7 Vin. Abr. 52, pl. 237; Ex parte Hooper, and others, 1 Mer. 7. d Keech v. Hall, Doug. 21; 3 East. Rep. 449. • Coote, 328. f Clay v. Sharpe, Sug. Vend. 20; 18 Ves. 344. g Corder v. Morgan, Lewis v. Moxham, 1 Mer. 179. See a form of a mortgage in fee, Append. No. III. [160] before-mentioned, or estate held till the profits thereof 3. Estate by elegit. shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for money; the one entered into before the chief magistrate of some trading town, 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 say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns, from whence this security is called a statute staple. They are both, I say, securities for debts acknowleged to be due; and originally permitted only among traders, for the benefit of commerce; whereby not only the body of the debtor may be imprisoned, and his goods seised in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the 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, acknowleged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the Recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, amended by 8 Geo. I. c. 25, which direct such recognizances to be enrolled and certified into Chancery. But these by the statute of frauds, 29 Car II. c. 3, are only binding upon the lands in the hands of bona fide purchasers, from the day of their enrolment, which is ordered to be marked on the record. 3. Another similar conditional estate, created by opera[161] tion of law, for security and satisfaction of debts, is called What it is. an estate by elegit. An elegit is the name of a writ, founded on the statute of Westm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed until his i 13 Edw. I. c. 18. debt 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 soon as the debt is levied. these three I shall conclude what I had to remark of these estates, Nature of by statute merchant, statute staple, and elegit, with the last estates. observation of Sir Edward Coke, "These tenants have [162] uncertain 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 estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors for ut is similitudinary; and though, to recover their estates, they shall have the same remedy (by assise) as a tenant of the freehold shall have, yet it is but the similitude of a freehold, and nullum simile est 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 assign the reason why these estates, in contradistinction to other uncertain interests, shall vest 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 due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts if recovered would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executor: because they, being liable to pay the original testator'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. j 1 Inst. 42, 43. k The words of the statute de mercatoribus are, "puisse porter bref de novele disseisine, auxi sicum de frank- 1 Co. Litt. 42. 92 ESTATES IN POSSESSION. [BOOK III. CHAPTER THE FIFTH. OF ESTATES IN POSSESSION, REMAINDER, HITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider 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 Estates are arising therefrom) begins. Estates therefore, with respect remainder, or to this consideration, may either be in possession, or in expectancy and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion. in possession, in reversion. 1. Estates in possession. I. Of estates in possession, (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 estates 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. [164] II. An estate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A. for twenty years, and, after the deter-mination of the said term, then to B. and his heirs for ever: here A. is tenant for years, remainder to B. in fee. 11. Estate in remainder, description of. |