mortgagor forfeits all equity of redemption whatsoever. 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, 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 cosis, the mortgagee can maintain no ejectment; but may be compelled to re-assign his securities. In Glanvil's time, when the universal method of conveyance was [160] 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 sequatur ipsius vadii traditio, curia domini regis hujusmo"di privatas conventiones tueri non solet :" for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: " "tali casu possit eadem res pluribus aliis creditoribus tum prius tum poste"rius 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. 9 10

cum in

b Pignoris appellatione eam proprie rem contineri dicimus, quæ simul etiam traditur creditori. At eam, quae sine tra litione nula coventionè tenetur, proprie hypothecae appellatione contineri dicimus. Inst. l. 4. t. 6. § 7.

cl. 10. c. 8.

(6) By the 4 & 5 W. &. 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. Christian.

(7) 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. Christian.

If a 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. But if the landlord mortgages, pending a yearly tenancy, the tenant is entitled to six months' notice from the mortgagee. I T. R. 378. (8) The statute contains exceptions. See decisions, 7 T. R. 185. 2 Chitty's Rep. 264.

(9) 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, shall be preferred, because if a mortgagee lend money upon real property without taking 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 so, 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.

It 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 pending a bill filed by the second to redeem the first, both the first and third mortgages shall 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. But a subsequent mortgagee can obtain no advantage over a prior one, if at the time of lending his money, he had notice of the prior incumbrance. 1 T. R. 763. But among mortgagees, where none has the legal estate, the rule in equity is qui prior est tempore, potior est jure. 2 P. Wms. 491. 1 Bro. 63.

(10) It may appear presumptuous to question the correctness of the doctrine of "tacking" a third to the first inortgage, and thus defeat a second mortgagee, which has long prevailed in England, and been sanctioned by learned jurists. It appears that in England the title deeds

THE RIGHTS

Book 2.

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. tute merchant and statute staple are securities for money; the one entered For both the stainto 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 debt 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 bene

fit of this mercantile transaction is extended to all the king's sub[161] jects in general, by virtue of the statute 23 Hen. VIII. c. 6. amend

ed 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 fide 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. 12 elegit is, and why so called, will be explained in the third part of these comWhat an 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 ob

d See Book I. c. 8.

e 13 Edw. I. c. 19.

usually accompany the mortgage, from which circumstance alone, a subsequent mortgagee would ordinarily receive notice of a prior incumbrance.

Lord Hale remarks that it is right that the third mortgagee by purchasing the first mortgage, and thus obtaining the legal estate" (or the title deeds)" has both law and equity on his side, which supersede the equity of the second, and should be entitled to have the first and third mortgages paid, before any share is appropriated to the second mortgagee." Upon the same principle, a second mortgagee in possession of the title deeds might defeat the first mortrage, and therefore as one alone of the mortgagees might be in possession of the title deeds, any subsequent mortgagee, by purchasing the mortgage accompanied by the title deeds, would be preferred.

This doctrine opens a door to great frauds, and enables the possessor of the title deeds to spe culate upon the deficiency of a mortgagee whose lien was untainted by fraud, and founded upon a valuable consideration. The learned Commentator, judge Christian, exposes the injustice of the doctrine, and contends that the equity of the second mortgagee ought to outweigh both the law and the equity of the third mortgagee; for, says he, it can hardly be reconciled with justice that the third mortgagee, by any contrivance, or combination, should be permitted to run away with the whole estate, and leave nothing to the second mortgagee, who had fairly and honestly advanced his property.

In most, if not in all of the United States, the precedence of lien of mortgages is dependent upon priority of execution.

(11) As to these securities in general, see 2 Saunders, index, Statute Merchant, and Statute Staple.

12) Upon this subject in general, see 2 Saunders, index, Elegit; Tidd Prac. 8 ed. 1073, &c.

tained 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 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 feodal 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.

66

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 [162] "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 "assise) as a tenant of the freehold shall have, (i) yet it is but the simili"tude of a freehold, and nullum simile est 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 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 the 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.

b 1 Inst. 42, 43.

i The words of the statute de mercatoribus are, "puisse porter bref de novele disseisine, auxi sicum de frankk Co. Liu. 42.

tenement."

CHAP. XI.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.'

1

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: 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. 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. As [164] if a man seised in fee-simple granteth lands to A for twenty years,

and, after the determination of the said term, then to B and his heirs for ever 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

a Co. Litt. 143.

(1) See in general, as to estates in possession, 2 Cruise Dig. 258. id. 6 vol. index, tit. Possession; 1 Preston on Estates, 23. 89. As to estates in remainder, 2 Cruise Dig. 258. id. 6 vol. index, tit. Remainder; 2 Saunders, index, Remainder, Contingent Remainder, Gross Remainder; I Preston on Est. 89, &c. As to reversions, 2 Cruise Dig. 454. id. 6 vol. index, Reversions; 2 Saund. index, tit. Reversions; 1 Prest. on Est. 89.

An estate in possession gives a present right of present enjoyment. An estate in remainder gives a right of future enjoyment, whether certainly or eventually depends on the form of the gift; and when the interest is contingent in its limitations, then on the events which have taken place. An estate in reversion gives a present fixed right of future enjoyment. 1 Prest. on Est. 89, &c.

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 for ever: 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 401. [165] is part of 1001. and 601. 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 1007. is appropriated, there can be any residue subsisting.

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 are 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 lands could pass without li- [166] very 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

b Plowd. 29. Vough. 269. d Raym. 151.

c Co. Litt. 49. Plowd. 25.

e 5 Rep. 94.