the fraudulent mortgagor forfeits all equity of redemption whatsoever. (16) 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, (17) 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 possession of the thing pledged remained with the debtor. (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. In Glanvil's time, when the universal method [ *160] of conveyance was by livery of seisin or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequator ipsius vadi traditio, curia domini regis hujusmodi privatus conventiones tueri non solet;" for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: "cum in tali casu possit cadem 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. (18)

(b) Pignoris appellatione eam proprie rem contineri dicimus, quæ simul etiam traditur, creditori. At eam, quæ sine traditione nuda conventione tenetur, proprie hypothecæ appellatione contineri dicimus. Inst. l. 4, t. 6,§ 7. (c) l. 10, c. 8.

(16) [By the 4 and 5 W. and M. c. 16, if any person mortgages his estate, and does not previously inform the mortgagee in writing of a prior mortgage, or of any judgment or incumbrance, which he has voluntarily brought upon the estate, the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor.]

(17) [The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of the estate, for it has been determined that where there is a tenant in possession, by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss v. Gallimore, Doug. 279. The mortgagor has no interest in the premises, but by the mere indulgence of the mortgagee; he has not even the estate of a tenant at will, for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown. Ib. 2 Fonblanque on Equity, 258.

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 v. Hall. 1 Doug. 21.]

(18) [If a mortgagee neglect to take possession of, or if he part with the title deeds of, the mortgaged property, with a view to enable the mortgagor to commit frauds upon third persons, he will be postponed to incumbrancers 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 v. Bicknell, 6 Ves. 190; Martinez r. Cooper, 2 Russ. 216; Barnett v. Weston, 12 Ves. 133; Bailey v. Fermor, 9 Pr. 267; Peter r. Russell, Gilb. Eq. Rep. 123; and, of course, a prior incumbrancer, to whose charge on the estate possession of the title deeds is not a necessary incident, cannot be postponed to subsequent incumbrancers, because he is not in possession of the title deeds. Harper v. Faulder, 4 Mad. 138; Tourle r. 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 incumbrances must be paid according to their priority in point of time. Brace e. Duchess of Marlborough, 2 P. Wms. 495; Clarke v. Abbott, Bernard, Ch. Rep. 460; Earl of Pomfret v. Lord Windsor, 2 Ves. Sen. 486; Maundrell v. Maundrell, 19 Ves. 260; Mackreth v. Symmons, 15 Ves. 354. But when, of several persons baving equal equity in their favor, 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 to 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 incumbrance, 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 incumbrance as well as the first. Wortley v. Birkhead, 2 Ves. Sen. 573; Morret v. Paske, 2 Atk. 53; Frere . Moore, 8 Pr. 487; Barnett v. Weston, 12 Ves. 135. But, to support the doctrine of tacking, the fairness

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 debts 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 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 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 file 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 is, and why so called, will be explained in the third part of these Com[*161] mentaries. 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

of the circumstances under which the loan desired to be tacked was made, must be liable to no impeachment: Maundrell v. 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 v. Symmons, 15 Ves. 335. Indisputably, a mortgagee purchasing the mortgagor's equity of redemption, or a puisne incumbrancer, cannot set up a prior mortgage of his own, (nor, consequently, a mortgage which he has got in) against mesne incumbrances of which he had notice. Toulmin v. Steere, 3 Meriv. 224; Mocatta v. Murgatroyd, 1 P. Wms. 393; Morret v. Paske, 2 Atk. 62. Upon analogous principles, if the first mortgagee stood by, without disclosing his own incumbrance on the estate, when the second mortgagee advanced his money, under the pursuasion that the estate was liable for no prior debt; the first mortgagee, in just recompense of his fraudulent concealment, will bo 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 v. Cordley, 1 Br. 357; Berrisford v. Milward, 2 Atk. 49. Part of this note is extracted from 2 Hovenden on Frauds, 183, 196.] The doctrine of tacking mortgages does not prevail in the United States. 4 Kent, 176. Here a system of registry exists under which the records of a public office in the county or town in which the lands lie are supposed to give full information of the grants or liens affecting a title, and any one who has a deed or mortgage which he fails to put on record in this office, is liable to have his rights cut off by a subsequent deed or mortgage from the same grantor, provided the grantee therein receives the same in good faith and for valuable consideration paid, and gets it duly recorded. But such second grantee will not be protected if he actually knew of the existence of the first conveyance at the time of receiving his own, or if he was notified hereof. But a notice afterwards and before his conveyance is recorded will not defeat his priority if he succeeds in getting his conveyance upon record first. 1 Washb. Real Prop. 536, 37; 4 Keut, 173.

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 feudal 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 alienate 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) (g) 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. (19) 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

[*162] only proves them to be chattel interests, because they go to the execu

tors, 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.

CHAPTER XI.

OF 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 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 arising therefrom) begins. Estates therefore with respect to this consideration, may either be in possession, or in expectancy:

18 Edw.

(g) 13 I

(h) 1 Inst. 42, 43.

The words of the statute de mercatoribus are, puisse porter bref de novele disscisine, auxi sicum de

franktenements.
(k) Co. Litt. 42.

(19) The remedy by elegit has been greatly enlarged by recent statutes, which will be referred to hereafter.

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. (1)

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 take effect and be enjoyed after another estate is determined.(2) *As if a man seised in fee-simple granteth lands to A for twenty years, and, after [*164] the determination of the said term, then to B and his heirs forever: here 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 remainder can be limited after the grant of an estate in fee-simple: (b) because a 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 407. is part of 1007. and 607. is the [ *105 ]

remainder of it; wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole 1007. is appropriated, there can be any residue subsisting.

(1) An estate in possession exists where the owner is entitled to immediate possession; an estate in expectancy is where the right to possession is postponed to a future period.

A remainder is a future estate, to take effect in possession on the determination of a precedent estate which is created by the same instrument. It is a vested remainder when there is a person in being who would have an immediate right to possession upon the ceasing of the precedent estate. It is a contingent remainder if the person to whom, or the event upon which it is limited, is uncertain.

A reversien is the residue of an estate left in the grantor, or in the heirs of a testator, and to which he or they will succeed in possession on the determination of a particular estate granted or devised by him.

(2) The law regarding remainders has been much changed by statutes in some of the American states, and without attempting to point out the changes specifically, the reader is referred to the 57th Lecture of Chancellor Kent, and to 2 Washb. on Real Property, 264. The author last named gives references to the statutes of the several states.

VOL. I.-56

441

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 [*166] lands could pass without livery of seisin; which must operate either 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.(3) 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; hereby the livery of the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seised of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in futuro.

As no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate as will support a remainder over. (ƒ) For an estate at will is of a nature so slender and precarious that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder. Besides, if it be a freehold remainder, livery of seisin must be given at the time of its creation; and the [*167] entry of the grantor to do this determines the estate at will *in the very instant in which it is made: (g) or if the remainder be a chattel interest, (f) 8 Rep. 75. (g) Dyer, 18.

(c) Co. Litt. 49. Plowd. 25

(d) Raym. 151.

(e) 5 Rep. 94,

(3) This doctrine, however, does not apply to conveyances having operation under the statute of uses; such as bargain and sale, covenant to stand seized, &c., under which the use, until the time limited, will result to the bargainor and his heirs. And by statute in many of the American states the rule as stated in the text is abolished or essentially modified. See 2 Washb. Real Prop. 264.