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for more private and secret bargains, have well evinced the wisilom of our antient law (4).
IV. A FOURTH species of estates, defeasible on condition subsequent, are those held by fiatute merchant, and statute fiaple; which are very nearly related to the vivum vadinin
(4) It has been said by a learned judge to be an established rule of equity, that a second mortgagee, who has the title deeds without notice of any prior incumbrance, Thall be preferred, because if a mortgagee lend money upon real property without taking Cause if a mori come lend moneu un the title deeds, he enables the mortgagor to commit a fraud. 1 T. R. 762. But lord Thurlow afterwards observed upon this, that he did not conceive that the not taking the deeds was alone sufficient to postpone the first mortgagee; if it were fo, there could be no such thing as a mortgage of a reversion; and he held that the second mortgagee in possession of the title deeds, was preferred only in cases where the first had been guilty of fraud or of gross negligence. 2 Bro. 652.
But I Mould be inclined to think that fraud or grofs negligence would be presumed, unless the mortgage could Mew that it was impossible for him to obtain the posledion of the title deeds, or that he had used the due and neceflary diigence for that purpose.
Whatever may be the value of the estate, it is of great importance to those who lend money upon real security, to be certain that there is no prior mortgage upon the estate ; for ic has been long settled, that if a third mortgagee, who at the time of his mortgage had no notice of the second, purchases the first mortgage even pend. irg a bill filed by the second to redeem the first, both the first and third mortgages Mhall be paid out of the estate, before any share of it can be appropriated to the second : the reason assigned is, that the third, by thus obtaining the legal estate, has both law and equity on his side, which supersede the equity of the second. And even lord Hale held it right, that the third should leise what he called the tabula in naufragio, a plank in the shipwreck, and thus leave the second to rerith. But among mortgagees, where none has the
legal estate, the rule in equity is, qui prior eft tempore, polior eft jure. . 2 P. Ilms. 491. i Bro. 63.
As this is the equity which is intelligible to ordinary understandings, if it were not presumptuous to reflect a censure upon a doctrine so long sanctioned by illustrious names, it might be observed that the equity of the second ought to have outweighed both the law and equity of the third ; for it can hardly be reconciled with substantial justice, that the third by any contrivance or combination Mould be
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, from whence this security is called a statute staple. They are both, I say, focurities 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 fuch 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 purchasors, from the day of their enrolment, which is ordered to be marked on the record (5).
d See book I. c. 8.
permitted to run away with the whole estate, and to leave nothing to the second, who had fairly and honestly advanced his property. But this, if wrong, can only be corrected by the authority of the legis. Jature.
(5) These estates are sometimes referred to in argument, but are now unknown in practice.
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 fo called, will be explained in the third part of these commentaries. At prefent I need only mention, that it is the name of a writ, founded on the statute e of Westin. 2. by which, after a plaintiff has obtained judgment for his debt at law, the theriff gives him poffefsion 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 fo holds them, he is called tenant by elegit. It is easy to oblerve, that this is alfo a mere conditional estate, defeasible as foon 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 foftened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores', it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the ftatute there, fore of Weftm. 2. permits only so much of them to be affect. ed by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribas (palled in the same year?) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contraEted in trade; though only balf 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 thefe estates, by statute merchant, statute staple, and elegit, with the ob. fervation of Sir Edward Coke", « These tenants have un“ certain 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 tenen “ mentum, 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 fame remedy (by affise) as “ a tenant of the freehold shall have ,, yet it is but the fimili“ tude of a freehold, and nullum fimile eft 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 affign 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.
€ 13 Edw. I. c. 18. fi 8 Edw. I.
813 Edw. 1.
b, Inft 42, 43.
as a tenant
i The words of the statute de mer. cateribus are, « puille porter bref de poe
vele diffeifine, auxi ficum de franktene
k Co. Litt. 42,
CHAPTER THE E LE VENT H.
OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.
T TITHERTO we have considered estates solely with 1 1 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 polilion, 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. Or estates in folellion, (which are sometimes called cftates executed, whereby a present interest passes to and refides 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 niost abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of auction.