al for mortgagees to take poffeffion of the mortgaged after payment or tender by the mortgagor of prinntereft, and cofts, the mortgagee can maintain no ent; but may be compelled to re-affign his fecurities. nvil's time, when the univerfal method of conveyance livery of feifin or corporal tradition of the lands, no r pledge of lands was good unless poffeffion was alfo [ 160 ] red to the creditor; "fi non fequatur ipfius vadii tra, curia domini regis hujufmodi privatas conventiones tueri folet:" for which the reafon given is, to prevent fubnt and fraudulent pledges of the fame land: "cum in tali fu poffit eadem res pluribus aliis creditoribus tum prius tum Berius invadiaris." And the frauds which have arifen, the exchange of these public and notorious conveyances appellatione contineri dicimus. Inft. l. 4. 2.6.§7. Pignoris appellatione cam proprie rem eri dicimus, quae fimul etiam traditur tori. At eam, quae fine traditione nuda Centione tenetur, proprie bypothecae c 1, 10. c. 8. Tate as an abfolute purchaser free from the equity redemption of the mortgagor. (3) 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 poffeffion, by a leafe prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may diftrain for all the rent which is due at the time of the notice, and alfo for all that accrues afterwards. Mofs v. Gallimore, Doug. 266. The mortgagor has no intereft in the premises, but by the mere indulgence of the mortga gee; he has not even the eftate 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 fown. Ib. } Book II. estate abfolutely vested 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 eftate be of greater value than the fum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his eftate(1); paying to the mortgagee his principal, interest, and expenfes for otherwise, in ftrictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a lefs 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 interest; thereby turning the mortuum, into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the fale of the eftate, 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 foreclofed from redeeming the fame; that is, to lose his equity of redemption without poffibility of recall. And also, in fome cafes of fraudulent mortgages, the fraudulent mortgagor forfeits all equity of redemption whatsoever (2). It is not how a Stat. 4 & 5 W. & M. c. 16. (1) In general if the mortgagee has been twenty years in poffeffion, the court of chancery, in conformity to the time of bringing an ejectment, will not permit the mortgagor to redeem, unless during part of the time the mortgagor has been an infant or a married woman; or unless the mortgagee admits he holds the estate as a mortgage, or there is fome other special circumstance, which forms an exception to the general rule. Eq. Ca. Abr. 313. 2 Bro. 399. Where two different estates are mortgaged by the owner to the fame perfon, one cannot be redeemed without the other. Amb. 733. (2) By the 4 & 5 W. & M. if any perfon mortgages his exate, 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 eftate, the mortgagee fhall hold the eftate ever ufual for mortgagees to take poffeffion of the mortgaged eftate, unless where the fecurity is precarious, or fmall; or where the mortgagor neglects even the payment of interest : when the mortgagee is frequently obliged to bring an ejectment(3), 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 ftatute 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 compelled to re-affign his fecurities. In Glanvil's time, when the univerfal method of conveyance was by livery of seifin or corporal tradition of the lands, no gage or pledge of lands was good unlefs poffeffion was alfo [160] delivered to the creditor; "fi non fequatur ipfius vadii tra“ditio, curia domini regis hujufmodi privatas conventiones tueri "non folet:" for which the reason given is, to prevent fubsequent and fraudulent pledges of the fame land: "cum in tali "cafu poffit eadem res pluribus aliis creditoribus tum prius tum "pofterius invadiari." And the frauds which have arifen, fince the exchange of these public and notorious conveyances b Pignoris appellatione cam proprie rem contineri dicimus, quae fimul etiam traditur creditori. At eam, quae fine traditione nuda conventione tenetur, proprie bypothecae appellatione contineri dicimus. Inft. 1. 4. c 1, 10. c. 8. eftate as an absolute purchaser free from the equity redemption of the mortgagor. (3) 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 poffeffion, by a leafe prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may diftrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Mofs v. Gallimore, Doug. 266. 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 fown. Ib. N 4 for the remainders expectant thereon, is only one fee-fimple; as 40%. is part of 100l. and 60 l. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 100%. is appropriated there can be any refidue fubfifting. THUS much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be obferved in the creation of remainders, and the reasons upon which thofe rules are founded. 1. AND, first, there must neceffarily be fome particular eftate, precedent to the eftate in remainder. As, an estate for years to A, remainder to B for life; or, an eftate 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 refidue or remainder of which is granted over to another. The neceffity of creating this preceding particular eftate, in order to make a good remainder, arifes from this plain reafon; that remainder is a relative expreffion, and implies that fome part of the thing is previously difpofed of: for where the whole is conveyed at once, there cannot poffibly exist a remainder; but the intereft granted, whatever it be, will be an estate in poffeffion. AN eftate created to commence at a distant period of time, without any intervening eftate, is therefore properly no remainder it is the whole of the gift, and not a refiduary part. And such future eftates can only be made of chattel interests, which were confidered in the light of mere contracts by the antient law, to be executed either now or hereafter, as the contracting parties fhould agree: but an eftate of freehold must be created to commence immediately. For it is an antient rule of the common law, that an eftate of freehold cannot be created to commence in future; but it ought to take effect presently either in poffeffion or remainder: because at com c Co. Litt. 49. Plowd. 25. e € 5. Rep. 94. mon mon law no freehold in lands could pafs without livery of seifin; 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 poffeflion. Therefore, though a leafe 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 for ever from the end of three years next enfuing, is void. So that when it is intended to grant an eftate of freehold, whereof the enjoyment fhall be deferred till a future time, it is neceflary to create a previous particular estate, which may fubfift till that period of time is completed; and for the grantor to deliver immediate poffefLion of the land to the tenant of this particular cftate, which is conftrued to be giving possession to him in remainder, fince his eftate and that of the particular tenant are one and the fame eftate in law. As, where one leafes 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 vefted in B, during the continuance of A's term of years. The whole estate paffes at once from the grantor to the grantees, and the remainder-man is feifed of his remainder at the fame time that the termor is poffeffed of his term. The enjoyment of it muft indeed be deferred till hereafter; but it is to all intents and purposes an eftate commencing in praefenti, though to be occupied and enjoyed in future. As no remainder can be created without fuch a precedent particular eftate, therefore the particular eftate is faid to fup port the remainder. But a leafe at will is not held to be fuch a particular estate, as will fupport a remainder over. For an estate at will is of a nature fo flender 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 conftitute a remainder. Besides, if it be a freehold remainder, livery of feifin must be given at the time of it's creation; and the entry of the grantor, to do this, determines the ellate at will f 8 Rep. 75. |