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IV. A fourth species of estates, defeasible on condition IV. Estates by subsequent, are those held by statute merchant, and statute chant, or statute
staple. 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. 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 (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,
(d) See book i. c. 8, Vol. I. p. 314.
was made, must be liable to no im- Upon analogous principles, if the first peachment: (Maundrell v. Maundrell, mortgagee stood by, without disclos10 Ves. 260 :) and, though the point ing his own incumbrance on the estate, has never called for decision, it has when the second mortgagee advanced been said to be very
ful,--whe- his money, under the persuasion that ther a third mortgagee, by taking in the estate was liable for no prior debt; the first mortgage, can exclude the the first mortgagee, in just recomsecond, if the first mortgagee, when pense of his fraudulent concealment, he conveyed to the third, knew of the will be postponed to the second. And second. (Mackreth v. Symmons, 15 the rule, as well as the reason, of deVes. 335.) Indisputably, a mortgagee cision is the same, where the mortgapurchasing the mortgagor's equity of gor has gained any other advantage, redemption, or a puisne incumbrancer, in subsequent dealings respecting the cannot set up a prior mortgage of his mortgaged estate, by the connivance own, (nor, consequently, a mortgage of the mortgagee. (Becket v. Cordley, which he has got in,) against mesne 1 Br. 357 ; Berrisford v. Milward, 2 incumbrances of which he had notice. Atk. 49.) Part of this note is ex. (Toulmin v. Steere, 3 Meriv. 224 ; tracted from Hovenden on Frauds, Mocatta v. Murgatroyd, 1 P. Wms. Vol. II. pp. 183, 196. 393; Morret v. Paske, 2 Atk. 62.)
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 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 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 bonâ fide purchasers, from the day of their employment, which is ordered to be
marked on the record (20). V. Estates by
V. Another similar conditional estate, created by operaelegit.
tion of law, for security and satisfaction of debts, is called [ * 161 ] an *estate by elegit. What an elegit is, and why so called,
will be explained in the third part of these commentaries (21). 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 obtained 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
(e) 13 Edw. I. c. 18.
(f) 18 Edw. I.
(20) Mr. Christian, in his annota- cognizances still sometimes occur, and tion upon the text above, observes, form an incumbrance, requisite to be " these estates are sometimes referred guarded against in perfecting a safe to in argument, but are now unknown and complete title to estates.” The in practice.” Mr. Wooddeson, how- reader who is disposed to go into the ever, speaking of the same subject, (in subject, will find an able summary his 24th Vin. Lect.) says,
thereof in Mr. Serjt. Williams' 3d kinds of interest are considerably fal- note to the case of Underhill v. Delen into disuse ; but the doctrine on vereux. (2 Saund. 69 c.) the subject is not unnecessary to be (21) See chap. 26, Vol. III. p. 418, attended to, as instances of such re- and Vol. IV. p. 426.
of the tenant by
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.
I shall conclude what I had to remark of these estates, of the interest by statute merchant, statute staple, and elegit, with the ob- elegit. servation of Sir Edward Coke(h). “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 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 *si- [ * 162 ] “ militude 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 (22); as judging it reasonable,
(9) 13 Edw. I.
mercatoribus are "puisse porter bref
(22) Mr. Wooddeson (in his 24th though uncertain and indeterminate Vin. Lect.) remarks, that the reason as to their duration ; is a reason very assigned by our author why estates by conformable to the rules which prestatute-merchant and statute-staple, vail in courts of equity on this subject: (which are estates on condition, be- but why (Mr. Wooddeson asks) should cause they are holden by the creditor it prevent the legal vesting of the until his debt be satisfied, that is, in freehold in these instances, any more the nature of a conditional limitation) than in the case of a mortgage in fee? are not in law freehold interests, The reason (he suggests, in answer to
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.
(k) Co. Litt. 42.
his own query,) may perhaps depend descendible, but such as by possibility on the manner in which these estates might come to executors ; like estates vest, viz. by the issuing of the liberate, for lives, since the abolition of comwhich is not a judgment in a real mon occupancy. For, the statute of action, nor bears any analogy to the 13 Edw. I. st. 3, says, the conusee various ways by which freehold in- shall have seisin, a term applicable terests may be acquired.
only to freehold : and the statute 27 however, as an interest under an extent Edw. III. st. 2, c. 9, expressly deis a species of estate entirely intro- clares he shall have an estate of frankduced by statute law, (Dighton v. tenement; and he is entitled to the Greenvil, 2 Ventr. 327,) ancient same remedies to recover the lands, lawyers might, with more propriety, if he is ousted, as other freeholders have allowed it to be a freehold in- enjoy. (See Fitzh. N. B. 439 ; Co. terest of a peculiar kind, namely, not Litt. 43 b.)
OF ESTATES IN POSSESSION, REMAINDER,
may either be
HITHERTO we have considered estates solely with regard to Of the time of
enjoyment of their duration, or the quantity of interest which the owners estates-- which have therein. We are now to consider them in another in possession or
in expectancy. 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 1. Estates in
possession. 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 (1) to be, II. Estate in
(1) Mr. Butler, (in his first note to the first chapter of Fearne's Ess. on Cont. Rem.) minutely examines and explains every part of Lord Coke's
definition of a remainder. To the in-