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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 possession of the thing pledged remained with the debtor.(6)" 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 reassign his securities. In Glanvil's time, when the universal method of conveyance was by livery of seisin *or corporal tradition of the lands, no gage or pledge of lands was good unless posses
[*160 sion was also delivered to the creditor; "si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non sulet;" for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: “cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari.”(c) 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 ancient law.12
(6) Pignoris appellatione eam proprie rem contineri dici traditione nuda conventione tenetur, proprie hypothecæ ap mus, quze simul etiam traditur, creditori. Al eam, quae sine pellatione contineri dicimus. Inst. 1. 4, 6. 6.2 7.
() L. 10, c. 8.
If the mortgagor grants a lease after the mortgage, the mortgagee may recover the possession of the premises in an ejectment against the tenant in possession without a previous notice to quit. 3 East, 449. Keech vs. Hall, 1 Doug. 21.-CHRISTIAN.
But if the landlord mortgages pending a yearly tenancy, the tenant is entitled to six months' notice from the mortgagee. 1 T. R. 378.–Catty.
11 It may be shown in equity, by parol evidence, that an absolute deed was intended by the parties merely as a security for money, and therefore a mortgage. Hiester vs. Madeira, 3 W. & S. 384. Walton vs. Cronly, 14 Wend. 63. Blakemore vs. Byrnside, 2 English, 505. And even where the intention of the parties is evidenced neither by written nor oral declarations at the time, wherever the concomitant circumstances show a deed to have been really meant as a pledge only, it will be treated as a mortgage. Hasnet vs. Dundas et al., 4 Barr, 178. Wharf vs. Howell, 5 Binn. 499. Even if the parties have expressly agreed that it shall not be a mortgage, but an absolute deed, to become wholly so if the money be not paid at the time stipulated, it is nevertheless & mortgage. Rankin vs. Mortimere, 7 Watts, 372. If the instrument or transaction be settled to be a mortgage, all restraints upon the equity of redemption are void, as oppressive and against the policy of the law. Johnston vs. Gray, 16 S. & R. 361.
There may, however, be a sale of land with an agreement that the vendor may repurchase within a stipulated period of time at a fixed price; and such an arrangement is not a mortgage. In different cases we find different particulars stated as being criteria by which to distinguish whether the instrument be a mortgage or an absolute sale. Each of these may have weight, but it is not safe to designate the insertion or omission of any one clause or circumstance as conclusive; for that would be adopted by the rapacious and submitted to by the needy, and the wholesome rule now established would become useless. The cases, however, seem to admit the possibility of a deed absolute on its face, and a defeasance agreeing to reconvey if the money be paid on a certain day, and that the latter may be unavailing unless the money be paid at the time specified. Among the considerations which weigh are the value of the property, and whether there arises from the transaction a debt for which the grantor would be liable if the land, from failure of title or otherwise, proves worthless. So it seems the agreement to reconvey must be a subsequent and distinct matter, not in the contemplation of the parties when the sale was made and deed delivered. In such case the agreement to reconvey will amount only to an executory agreement. Dates and papers of this kind may be affected if it can be shown that the whole was merely a scheme or contrivance, that in reality it was a loan merely, and that the defeasance was understood and agreed on in the original arrangement, and the discrepancy of dates was merely accidental or with a sinister design. Kerr vs. Gilmore, 6 Watts, 405. Kelly vs. Thompson, 7 Watts, 401. Colwell vs. Woods, 3 Watts, 188. Stower vs. Stower, 9 S. & R. 434. Bennock vs. Whipple, 3 Fairf. 346. Hillhouse vs. Dunning, 7 Conn. 143. Russell vs. Southard, 12 How. U.S. 139.-SHARSWOOD.
12 An experiment made in the counties of York and Middlesex, to counteract, by registration, the inconveniences alluded to in the text, is mentioned by our author (at the close of the 20th chapter of this book) as one of very doubtful utility in practice, however plausible in theory.
If a mortgagee neglect to take possession of, or if he part with, the title-deeds of the mortgaged y "operty, with a view to enable the mortgagor to commit frauds upon third
IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and statute staple; 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 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,(d) from whence this security is called a statute staple. They are both, I say, securities for debts acknowledged 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 seized 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, acknowledged before either of the chief
(d) See book i. c. 8. persons, he will be postponed to encumbrancers who have been deceived and induced to advance money by his collusion with the mortgagor; but the mere circumstance of not taking or keeping possession of the title-deeds is not of itself a sufficient ground for postponing the first mortgagee, unless there be fraud, concealment, or some such purpose, or concurrence in such purpose, or that gross negligence which amounts to evidence of a fraudulent intention, (Evans vs. Bicknell, 6 Ves. 190. Martinez vs. Cooper, 2 Russ. 216. Barnett vs. Weston, 12 Ves. 133. Bailey vs. Fermor, 9 Pr. 267. Peter vs. Russell, Gilb. Eq. Rep. 123 ;) and, of course, a prior encumbrancer, to whose charge on the estate possession of the title-deeds is not a necessary incident cannot be postponed to subsequent encumbrancers because he is not in possession of the title-deeds. Harper vs. Faulder, 4 Mad. 138. Tourle vs. Rand, 2 Br. 652.
Among mortgagees, where none of them have the legal estate, the rule in equity is that qui prior est tempore potior est jure ; and the several encumbrances must be paid according to their priority in point of time. Brace vs. Duchess of Marlborough, 2 P. Wms.
. 195. Clarke vs. Abbot, Bernard Ch. Rep. 460. Earl of Pomfret vs. Lord Windsor, 2 Ves. Sen. 486. Maundrell vs. Maundrell, 19 Ves. 260. Mackreth vs. Symmons, 15 Ves. 354. But when, of several persons having equal equity in their favour, one has been fortunate or prudent enough to get in the legal estate, he may make all the advantage thereof which the law admits, and thus protect his title, though subsequent in point of time to that of other claimants : courts of equity will not interfere in such cases, but leave the law to prevail. In conformity with this settled doctrine, if an estate be encumbered with several mortgage-debts, the last mortgagee, provided he lent his money bona fide and without notice, may, by taking in the first encumbrance, carrying with it the legal estate, protect himself against any intermediate mortgage: no mesne mortgagee can take the estate out of his hands without redeeming the last encumbrance as well as the first. Wortley vs. Birkhead, 2 Ves. Sen. 573. Morret vs. Paske, 2 Atk. 53. Frere vs. Moore, 8 Pr. 487. Barnett vs. Weston, 12 Ves. 135. But, to support the doctrine of tacking, the fairness of the circumstances under which the loan desired to be tacked was made must be liable to no impeachment, (Maundrell vs. Maundrell, 10 Ves. 260,) and, though the point has never called for decision, it has been said to be very doubtful whether a third mortgagee, by taking in the first mortgage, can exclude the second, if the first mortgagee, when he conveyed to the third, knew of the second. Mackreth vs. Symmons, 15 Ves. 335. Indisputably, a mortgagee purchasing the mortgagor's equity of redemption, or a puisne encumbrancer, cannot set up a prior mortgage of his own (nor, consequently, a mortgage which he has got in) against mesne encumbrances of which he had notice. Toulmin vs. Steere, 3 Meriv. 224. Mocatta vs. Murgatroyd, 1 P. Wms. 393. Morret vs. Paske, 2 Atk. 62. Upon analogous principles, if the first mortgagee stood by, without disclosing his own encumbrance on the estate, when the second mortgagee advanced his money, under the persuasion that the estate was liable fomno prior debt, the first mortgagee, in just recompense of his fraudulent concealment, will be postponed to the second. And the rule, as well as the reason, of decision is the same, where the mortgagor has gained any other advantage in subsequent dealings respecting the mortgaged estate by the connivance of the mortgagee. Becket vs. Cordley, 1 Br. 357. Berrisford vs. Mit ward, 2 Atk. 49. Part of this note is extracted from 2 Hovenden on Frauds, 183, 196. --Cutty.
justices, or (out of term) before their substitutes, the inayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction 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 directs 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.
V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an *estate by elegit. What an elegit
[*161 is, and why so called, will be explained in the third part of these commentaries. At present 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 at law, the sheriff gives him possession of one-half of the defendant's lands and tenements, to be occupied and enjoyed until his 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. 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, (f) it is generally thought that the proprietor of lands was enabled to alienaté no more than a moiety of them: the statute therefore of Westm. 2 permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same year)(9) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though one-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 observation of Sir Edward Coke.(h) “These tenants have 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 assize) as a tenant of the freehold shall have,(i) 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 exe
[ *162 cutors, 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 executors:(k) 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.
The words of the statute de mercatoribus are "puissa
porter bref de nordle disseisine auxi, sicum de franktene (%) 1 Inst. 42, 43.
(*) Co. Litt. 42.
( 13 Edw. I. c. 10
18 Edw. I. (9) 13 Edw. I.
ESTATES IN POSSESSION, REMAINDER, AND REVERSION. 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 eonsider 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 arising therefrom) begins. Estates therefore with respect 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.'
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.
II. An estate then in remainder may be defined to be, an estate limited to *164]
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 determination of the said term, then to B. and his heirs forever: heré A. is tenant for years, remainder to B. in fee. In the first place an estate for years is created or carved out of the fee, and given to A.; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee.(a) They are indeed different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A. for twenty years, and after the determination of the said term to B. for life; and after the determination of B.'s estate for life, it be limited to C. and his heirs forever: this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee. Now, here the estate of inheritance undergoes a division into three portions: there is first A.'s estate for years carved out of it; and after that B.'s estate for life; and then the whole that remains is limited to C. and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance: and if there were a hundred remainders, it would still be the same thing: upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no re
(*) Co. Litt. 143. 11. An estate in possession gives a present right of present enjoyment.
2. A vested remainder is an estate to take effect after another estate for years, life, or in tail, which is so limited, that if that particular estate were to expire or end in any way, at the present time, some certain person would become thereupon entitled to the immediate enjoyment.
3. A contingent remainder is where either the person to whom or the event upon which the future estate is to be enjoyed is at present uncertain.
4. An executory devise is a future estate limited by will which would not be valid in a conveyance at common law, owing to the fact of its being limited on a fee, or not having a sufficient particular estate to support it, or to its respecting personal property.
5. A contingent use is where a future estate is limited to arise in a conveyance to uses which would not be good in a conveyance at common law for the same reasons as have been stated in regard to executory devises.-SHARSWOOD.
mainder can be limited after the grant of an estate in fee-simple:(6) because à fee-simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all *the remainders expectant thereon, is only one fee-simple: as 401. is part of
[*16:5 1001. and 601. is the remainder of it: wherefore, after a fee-simplo once vested, there can no more be a remainder limited thereon, than, after the whole 1001. is appropriated, there can be any residue subsisting:
Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded.
1. And, first, there must necessarily be some particular estate precedent to the estate in remainder.(c) As, an estate for years to A., remainder to B. for life; or, an estate for life to A., remainder to B. in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the residue or remainder of which is granted over to another The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder; but the interest granted, whatever it be, will be an estate in possession.
An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder; it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law,(d) to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder;(e) because at *common law no freehold in lands could pass without livery of seisin; which must operato either
[*166 immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession. Therefore, though a lease to A. for seven years, to commence from next Michaelmas, is good; yet a conveyance to B. of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A. for three years, with remainder to B. in fee, and makes livery of seisin to A.; here by the livery the freehold is immediately created, and vested in B., during the continuance of A.'s Plowd. 29. Vaugh. 269.
(4) Raym. 151.
() 5 Rep. 94. * Yet deeds acting under the statute of uses, such as bargain and sale, covenant to stand seised, or a conveyance to uses, or even a devise, may give an estate of freehold to commence in futuro; as a bargain and sale to A. and his heirs, from and after Michaelmasday now next ensuing, is good; and the use, in the mean time, results to the bargainor or his heir. See 2 Prest. Conv. 157. Saund. on Uses and Trusts, 1 vol. 128 ; 2 vol. 98 -ARCHBOLD.
The Real Property Commissioners propose to abolish this distinction between the rule of the common law and the rule under the statute of uses, and to enact that estates may at common law be conveyed or created to commence at a future time, whether certain or uncertain. If this be done, the first rule laid down by Blackstone will, so far as it relates to future estates, be abolished, and in effect a remainder may then be created without any particular estate to support it.-STEWART.
Co. Litt. 49. Plowd. 25.