of sale into the mortgage deed, which enables the mortgagee, in case of default of payment, to effect a sale of the mortgaged premises after six months' notice in writing.

The principles of Equity as to equity of redemption now apply equally to leasehold or copyhold estates as to the mortgage of freehold.*

A deposit of title-deeds generally accompanied by a note in writing, on the borrowing of money, is, in equity, a mortgage of the lands therein mentioned.

Estates by Statute Merchant and Statute Staple, which were originally made applicable as securities for money, have been superseded by various statutes passed for the benefit of creditors.

The other estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. An elegit is a writ, founded on the statute of Westminster 2, by which, after a plaintiff had obtained judgment for his debt at law, the sheriff used to give him possession of a moiety of the defendant's lands and tenements, to be occupied and enjoyed until his debt and damages were fully paid; and, during the time he so held them, he was called tenant by elegit; but now, by stat. 1 & 2 Vict., c. 110, the judgment creditor can seize by that writ the whole instead of a moiety of the judgment debtor's lands and tenements.

By stat. 27 & 28 Vict., c. 112, it is provided that decrees and orders in equity, lunacy, and bankruptcy, whereby any money shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom such money is payable are consequently, as judgment creditors, entitled to issue out this writ, and to become tenants by elegit. These courts may also direct a sale of the lands or tenements so taken by force of the writ of elegit.

* See recent enactments respecting the relative relations of mortgagor and mortgagee-Stats. 1 Vict., c. 28; 13 & 14 Vict., c. 60; 15 & 16 Vict., c. 86; 17 & 18 Vict., c. 113; 23 & 24 Vict., c. 145; 28 & 29 Vict., c. 99; and 30 & 31 Vict., c. 142.

† An estate by elegit is not strictly a freehold estate, but is considered as a chattel interest, and passes to the personal representatives.

CHAPTER IX.

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; let us now consider them with regard to the time of their enjoyment, when the actual taking or receipt of the rents and profits and other advantages arising therefrom begin.

Explain Estates in Possession, Remainder, and Reversion.

An estate in possession, which is also called an estate executed, is where a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the cases of estates executory. An estate in possession does not in law mean that the owner has the actual possession, but that he has the legal right of possession.

An estate in remainder is an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple grants lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs; here A. is tenant for years, remainder to B. in fee. 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 to be limited to C. and his heirs, this makes A. tenant for years, with remainder to B. for life, and remainder over to C. in fee. Here the estate of inheritance undergoes a division into three portions: there is first A.'s estate for years carved out of it; after that B.'s estate for life; and then the whole that remains is limited to C. and his

heirs; that is, the fee-simple, being the highest and largest estate that a subject is capable of enjoying. Although there are three parts, there is only one estate of inheritance.

The first rule with respect to the creation of a remainder is, that there must necessarily be some particular estate precedent to the estate in remainder, as no remainder can be created without such a precedent particular estate.

The second rule is that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate. As where there is an estate to A. for life, with remainder to B. in fee; here B.'s remainder in fee passes from the grantor at the same time that seisin is delivered to A. of his life estate in possession.

The third rule is that the remainder must vest in the grantee during the continuance of the particular estate. As, if A. be tenant for life, remainder to B. in tail; here B.'s remainder is vested in him, at the creation of the particular estate to A. for life. Or, if A. and B. be tenants for their joint lives, remainder to the survivor in fee; here, though during their joint lives the remainder is vested in neither, yet on the death of either of them the remainder vests instantly in the survivor; therefore both these are good remainders. But, if an estate be limited to A. for life, remainder to the eldest son of B. in tail, and A. dies before B. has any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate; and, even supposing that B. should afterwards have a son, he shall not take by this remainder; for, as it did not vest at or before the end of the particular estate, it never can vest at all, but is gone for ever.

The fourth rule is that a remainder may not be limited to a child of an unborn person, as a limitation tending to a perpetuity is absolutely void, and a limitation of such a void remainder makes all subsequent remainders bad.

Remainders are either vested or contingent. A vested remainder is where the estate is invariably fixed to remain to a

CONTINGENT OR EXECUTORY REMAINDERS.

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determinate person after the particular estate is spent ; as if A. be tenant for twenty years, remainder to B. in fee. B.'s is a vested remainder, and it may be transferred, aliened, or charged with debts.

Contingent or executory remainders are where the estate in remainder is limited to take effect, either to an uncertain person, or upon an uncertain event. As if A. be tenant for life, with remainder to B.'s eldest son (then unborn) in tail; this is a contingent remainder, for it is uncertain whether B. will have a son or not; but the instant that a son is born, the remainder is no longer contingent, but vested; for if A. had died before the contingency happened; that is, before B.'s son was born, the remainder would have been absolutely gone; for the particular estate was determined before the remainder could vest.

The second kind, or those limited on an uncertain event, may be exemplified thus:-By a lease to A. for life, remainder to B. for life, and if B. should die before A., then the remainder to C. for life. B.'s dying before A. is an event that may not happen, and therefore the remainder to C. is contingent.

Contingent remainders could have been defeated by destroying or determining the particular estate upon which they depended before the contingency happened whereby they became vested. Thus, where there was a tenant for life, with divers remainders in contingency, the tenant for life might not only by his death, but by alienation, surrender, or otherwise destroy and determine his own life estate before any of those remainders vested, the consequence of which was that he utterly defeated them all; but now the law relating to the defeating of contingent remainders has undergone material alteration* by the Act amending the law of real property, which provides that contingent remainders "shall be, and if created before the passing of the Act, shall be deemed to be, capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened."

Limitations to trustees to preserve contingent remainders were formerly necessary in many cases, and will be found in

*See 8 & 9 Vict., c. 106., s. 8.

many conveyances; but now, as contingent remainders can no longer be destroyed, they have become unnecessary.

An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law; and so also the reversion, after an estate for life, years, or at will, continues in the lessor; for the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. Thus a grant of an estate by the owner of the fee-simple to "A. for life" leaves in the grantor this reversion in fee-simple, which will commence in possession after the determination of the lifefreehold. A reversion is never, therefore, created by deed or writing, but arises from construction of law. A reversion being an immediate interest, may be granted over to another person.*

* By 8 & 9 Vict., c. 106, it is provided that a feoffment made after the 1st October, 1845, shall not have any tortious operation; see also 20 & 21 Vict., c. 57, as to reversionary interests of married women; and 31 & 32 Vict., c. 4, as to the sale of reversions.