SECTION 21. EQUITABLE RIGHTS. The second class of cases where equity takes jurisdiction arise where the title is recognized by law but some particular right in relation thereto can only be enforced in equity. Under this head will be treated, mistake, accident, fraud, contribution, exoneration, subrogation, marshaling, accounting, election, and conversion. SECTION 22. WHERE EQUITY TAKES JURISDICTION The third principal division of equity jurisprudence includes all cases where equity takes jurisdiction on account of the character or number of the party. Under this general division are included suits by or against married women, suits between husband and wife, suits between partners, and cases where, on account of the number of diverse interests, equity takes jurisdiction to prevent a multiplicity of suits. SECTION 23. EQUITABLE REMEDIES. The last great division of equity jurisprudence is that of equitable remedies. Under this head are gathered those cases where the complainant is compelled to go into equity in order to secure some particular method of granting relief given only by the equity courts. Among the various forms of equitable remedies are specific performance, injunctions, discovery, correction, and cancellation of written instruments, and various remedies applicable to real property. EQUITABLE TITLES. SECTION 24. USES OR TRUSTS. Almost the entire field of equitable titles is taken up by the subject of uses or trusts. While strictly a branch of equity jurisprudence, trusts are generally studied separately, and are made a separate subject in this work.1 "An equitable lien is not an estate or property in the thing itself, nor a right to recover the thing, that is, a right which may be the basis of a possessory action; it is neither a jus ad rem nor a jus in re. It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing, so that the very thing itself may be proceeded against in an equitable action, and either sold or sequestered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the creditor in whose favor the lien exists. It is the very essence of this condition that while the lien continues the possession of the thing remains with the debtor or the person who holds the proprietary interest, subject to the encumbrance. The equitable lien differs essentially from the common law lien, which is simply a right to retain possession of the chattel until some debt or demand due to the person thus retaining is satisfied; and possession is such an inseparable element, that if it be voluntarily 'See Subject 21, in this Volume. surrendered by the creditor, the lien is at once extinguished." 2 The most important classes of equitable liens are vendor's and vendee's liens. A vendor's lien arises where property is sold and transferred, but a part or the whole of the purchase price left unpaid. Here the vendor will have a lien on the property for the amount due him. The taking of other security destroys this lien, and as this is almost invariably done (on account of the insecurity of the vendor's lien), this lien is at present of little importance. The vendee's lien arises where the vendee, under a contract for the purchase of land, pays a part, or the whole of the purchase price before conveyance. SECTION 26. OTHER EQUITABLE TITLES. The separate estate of a married woman has already been treated. Mortgages will be the subject Under Domestic Relations, Vol. MORTGAGES. SECTION 27. MORTGAGES AND SIMILAR FORMS OF SECURITY. A mortgage is a conveyance of either real or personal property, as security for the payment of a debt, or the performance of some act. The Supreme Court of the United States,' has defined a mortgage to be "an estate upon condition defeasible upon the performance of the condition according to its legal effect." The following quotation gives an admirable brief account of the origin and history of mortgages: "The idea of a mortgage and its characteristics have been by some writers ascribed to the Jews; by others it is said that the civil law, which distinguished between pledges and thing hypothecated, is responsible for the mortgage; while yet others look upon it as a corollary of the common law doctrine of estates upon condition. However that may be, it is certain that a mortgage, or transaction in the nature thereof, was known to English law at a period anterior to the Norman conquest. After that date, owing to the severity of the feudal system with respect to alienation of land, a tenant in chivalry being unable to alienate in the absence of a license therefor, mortgages were not in common use until the restrictions upon alienation were removed by a statute permitting all persons except the King's tenants in capite to alien all or any part of their lands at their discretion. The result of 3 1 United States VS. Fisher, 2 Cranch, 358. Kyger vs. Ryley, 2 Neb., 20. * 1 Jones on Mortg. (4th ed.), Sec. 1. Powell on Mortg., 3; 1 Steph. Com., 327. this statute was that two methods of securing payment of money by means of a conditional alienation of land became popular, which are distinguished by Littleton as vivum vadium, and mortuum vadium, the latter being the modern common law mortgage.' The distinction between a mortgage or mortuum vadium and a vivum vadium is thus explained by Coke: "Mortgage' is derived of two French words, viz., mort, that is mortuum, and gage, that is vadium or pignus. And it is called in Latin mortuum vadium or morgagium. Now it is called here mortgage or mortuum vadium, both for the reason here expressed by Littleton, as also to distinguish it from that which is called vivum vadium. Vivum autem dicitur vadium, quia nunquam moritur ex aliquad parte quod ex suis proventibus acquiratur. As if a man borrow a hundred pounds of another, and maketh an estate of lands upon him, until he hath received the said sum of the issues and profits of the land, so as in this case neither money nor land dieth, or is lost (whereof Littleton speaketh in this chapter), and therefore it is called vivum vadium." • The Welsh mortgage was intermediary in its character between the mortgage and the vivum vadium. In the Welsh mortgage the mortgagee took possession of the land, and the use of the land was set off against the use of the money; the mortgagor paying no interest, and the mortgagee not being compelled to account for the rents and profits of the land. SECTION 28. COMMON LAW THEORY OF MORTGAGE. Under the common law, a mortgage was considered merely what it purports to be, namely, a deed of Am. & Eng. Ency. of Law, Vol. • Coke on Littleton, 205a. |