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the sum so borrowed. This is an estate conditioned to be void as soon as such sum is raised. And in this case the land or pledge is said to be living ; 'it subsists and survives the debt; and, immediately on the discharge of that, results back to the borrower.w? But mortuum vadium, a dead pledge, or mortgage (which is much more common than the other), is where a man borrows of another a specific sum (e. g., £200), and grants him [158] an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of £200 on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land which is so put in pledge is by law, in case of non-payment at the time limited, forever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage. But as it was formerly a Form of doubty whether, by taking such estate in fee, it did not become mortgage. : liable to the wife's dower,* and other encumbrances of the mortgagee (though that doubt has been long ago overruled by our courts of equity), it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on repayment of the mortgage money; which course has been since pretty generally continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.

As soon as the estate is created, the mortgagee may imme- Legal and diately enter on the lands ;t but is liable to be dispossessed upon consequenperformance of the condition by payment of the mortgage mon-ces of mortey at the day limited. And, therefore, the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterward evicted by the mortgagor, to whom the land is now forever dead. But here, again, the courts of equity interpose ; and, though a mortgage be thus forfeited, and the estate absolutely vested in w C8. Litt., 205.

» Ibid., Ø 357. Cro. Car., 191. * Litt., \ 332.

2 Hardr., 466.

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gage.

(7) Pledges of this kind, and what are out of use. (See 1 Vern., 476; 2 Atk. : called Welsh mortgages, which are very 360; 1 Meriv., 114; 1 Younge, 610.)

similar in effect, are now almost entirely

* Provided against by statute, unless the husband acquire an absolute estate in the mortgaged premises during marriage.-(1 R. S., 741, 7.) + Not so in New York. (See ante, p. 151, note *.)

[159] the mortgagee at the common law, yet they will consider the

real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate ;' paying to the mortgagee his principal, interest, and expenses; for otherwise, in strictness of law, an estate worth £1000 might be forfeited for non-payment

of £100, or a less sum. This reasonable advantage, allowed to Equity of mortgagors, is called the equity of redemption; and this enaredemption. bles à mortgagor to call on the mortgagee, who has possession

of his estate, to deliver it back, and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money im

mediately; or else call upon the mortgagor to redeem his esForeclosure. tate presently, or, in default thereof, to be forever foreclosed

from redeeming the same; that is, to lose his equity of redemp

tion without possibility of recall. And, also, in some cases of Fraudulent fraudulent mortgages,a the fraudulent mortgagor forfeits all mortgage forfeits

equity of redemption whatsoever. It is not, however, usual equity of for mortgagees to take possession of the mortgaged estate, unredemption, less 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. But by statute 7 Geo. II., C. 20, after paya Stat. 4 & 5 W. & M., c. 16.

traditione nuda conventione tenetur, pro6 Pignoris appellatione eam proprie prie hypothecæ appellatione contineri rem contineri dicimus, quæ simul etiam dicimus.-(Inst., l. 4, t. 6, \ 7.) traditur creditori. At eam, quæe sine

(8) The period within which redemp- second mortgagee shall hold the estate tion will be allowed after the last ac- as an absolute purchaser, free from the knowledgment of title by the mortgagor equity of redemption of the mortgagor. is now fixed by statute at twenty years, This statute is, perhaps, the most remarkwith a further allowance in cases of dis- able legislative bull on record; it is inabilities; the rule thus established being tended to prevent fraud on second mortin substance the same as that which had gagees, which fraud can only have been previously been acted upon by courts of practiced whien, by reason of prior conequity. (Stat.3&4 Will. IV., c. 27, s. 28.) cealed charges, the estate is not of suf

ficient value to answer the second charge, (9) By the 4 & 5 W. & M., c. 16, if any and the equity of redemption is worth person mortgages his estate, and does less than nothing: When this equity of not previously inform the mortgagee redemption which the act presents to the in writing of any prior mortgage, judg. second mortgagee is of any value, no ment, statute, or recognizance, which he fraud has been committed. According. has voluntarily brought upon the estate, ly, the only case which has arisen on the and does not (in the case of a prior judg- act is one where a second mortgagee ment, &c.), within six months after notice endeavored to defraud the mortgagor by from the second mortgagee under hand means of it, but was not allowed to do and seal, pay off such judgment, &c., the bo. (2 Vern., 589.)

ment or tender by the mortgagor of principal, interest, and Mortgagee costs, the mortgagee can maintain no ejectment, but may be sign, on mon. compelled to reassign his securities. In Glanvil's time, when ey tendered. the universal method of conveyance was by livery of seizin or [160] corporeal 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 hujusmodi privatas conventiones tueri non solet ;" for which the reason given is to prevent subsequent and fraudulent pledges of the same land; cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari.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.''

c L. 10, c. 8.

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(10) The principles upon which courts a lease and release, or by a bargain and Mortgages. of equity interfere with and control the sale, or by demising the land for a long legal rights of mortgagees became set- term of years; and sometimes, instead tled about the commencement of the of a condition, an agreement was in17th century; since which time mort- serted that, on repayment on a certain gage transactions (so frequent and im- day, the estate should be reconveyed. portant in this commercial country) have Whatever form the transaction assumed, become a considerable head of equity the letter of the deed was strictly enlaw, and have ceased to depend upon forced at law; but equity soon establishthe common-law doctrine of conditions. ed the rule that the right of the mortAs, however, the arrangement of the gagor to redeem should exist, notwithCommentaries does not afford any more standing any stipulation to the contrary, convenient place, this opportunity is until burred by lapse of time (i. e., by taken for stating very briefly some of enjoyment by the mortgagee during the more important incidents of a mod- twenty years, or in case the mortgagor ern mortgage.

or his representatives were under any A mortgage is a security for a subsist, disability, such as absence beyond seas, ing or future debt, by a transfer of real coverture, infancy, &c., a longer period, or personal property, or of some inter- without any recognition of the mortgaest in or power over such property, re- gor's title by paying interest or otherdeemable at law (if the legal estate be wise) (vide infra, p. 226, n.), or by foretransferred) by payment of the debt and closure, which is a decree in a suit in interest according to the condition ex- equity by the mortgagee, directing the pressed in the instrument, and redeem- mortgagor to repay the money and inable in equity according to certain rules terest within six months, or some other observed in courts of equity, without re- short period, or to be forever foreclosed gard to any restrictions which the parties and barred of his right to redeem. After may attempt to impose upon the power a decree of foreclosure, the mortgagor's of redemption.

right to redeem, or equity of redemption, A mortgage of freehold land at com- as it is called, is utterly extinguished. mon law was usually a feoffment in fee Until extinguished, it is regarded as a disupon condition to be void if the feoffor tinct equitable estate, descendible to the or his heirs should, on a fixed day (and heir, subject to courtesy and dower, and if no day was fixed, the feoffor had his capable of being assigned with all its inwhole life, Co. Litt., 208, b), pay the cidents. debt and interest to the feoffee or his No agreement between the parties, at representatives ; and at law the effect of the time of making the mortgage or aftperforming the condition was to defeat erward, so long as the debt is allowed the feoffment and restore the mortgagor to subsist, can limit or control this equity to his original estate, while non-payment to redeem, the maxim of equity being, on the day gave the estate to the mort- “once a mortgage, always a mortgage;" gagee forever discharged of the condi- and whether the conveyance of the estion. It afterward became usual to ef- tate and the proviso for redemption are fect the security by a conveyance called contained in the same or in separate

statute mer.

IV. Estates IV. A fourth species of estates, defeasible on condition subby statute staple and sequent, are those held by statute merchant and statute staple ;" chant.

deeds, and even where from fraud or but that the mortgagor may repurchase Mortgages. otherwise no proviso for redemption has it at a given day, and at the same time

ever been executed (2 Vern., 84; Prec. the mortgagee releases the mortgagot
Ch., 526), courts of equity, upon proof from the debt, this changes the relation
that the transaction was originally a of the parties, and extinguishes the
mortgage, and that its character has not mortgage; but wherever there has once
since been altered, will always allow the been a mortgage, courts of equity look
mortgugor or his representatives to re- with great suspicion on any transactions
deem the estate, if not barred by lapse of this kind, in which advantage may be
of time or by a previous decree of fore- so easily taken of the indebted and em-
closure. “ In the case of a mortgage, barrassed situation of the original owner
you shall not by special terms alter what of the estate.
this court says are the special terms of The characteristic of a mortgage, then,
the contract.” (7 Ves., 273.)

is, that it is a security for a debt; and in All that is necessary to constitute a equity the debt is always considered as mortgage is a subsisting debt, and a trans- the principal, and the mortgaged estate fer of property in consideration of and as the accessory. Therefore, the right by way of security for, and not in satis- to the benefit of the security belongs to faction of, such debt. And this consti- the person who is entitled to the debt; tutes the distinction (as to which there and in case of the death of a mortgagee was formerly much uncertainty and in fee, although the estate devolves upon doubt) between a mortgage and a con- his heir, he takes it for the benefit of the ditional or defeasible purchase. If A. executor, who is entitled to the debt, sell and convey an estate to B. in con- and who, in case of foreclosure or bar by sideration of £100, and it is agreed that lapse of time, may claim the absolute A. may repurchase the estate again on a benefit of the estate itself. (3 Swanst., certain day, upon payment of £150; but 628; 2 Vern., 193, 367.). As soon as that, if he do not repurchase on that day, the debt is extinguished by either of B. shall keep the estate forever, this is these means, the estate resumes its propa conditional sale, and equity will not er character, and becomes transmissible interfere with the condition ; but if A. in equity as well as at law to the heirs at the same time give to B. a bond for of the mortgagee or of his representative. payment of the £100 and interest, or if (4 Madd., 483.) On the other hand, as the £100 were a debt already owing the mortgage is merely a collateral secufrom A. to B., and which, from the cir- rity for the debt, if the mortgagor die, cumstances, appears to be regarded as his personal assets are liable, in the first still subsisting, or if for any other reason instance, to be applied in satisfaction by it appears that the primary character of the executor; and in case of a mortgage the transaction was not a sale of the es- of an estate of inheritance, the heir or tate, but a loan of money upon the se. devisee of the mortgagor is entitled to curity of the estate ; if, in short, it ap. have such assets as are primarily applipear that at the same time that A. has cable for payment of debts applied for this option to repurchase, B. has a right that purpose, so as to exonerate and reto sue for the original consideration deem the mortgaged estate. (1 P. W., money as a debt, this is a mortgage, re- 290 ; 2 Id., 386; 3 Id., 358; 1 Atk., deemable upon the usual terms. (Will- 621; 7 Ves., 336; 3 Myl. & K., 358.)* iams v. Owen, 10 Sim., 386, reversed, on But if the equity of redemption is conappeal, by the lord chancellor, 5 Jur., veyed away by the original mortgagor 114; 4 Beav., 197.) Unless both par- to another person, as such person did not ties are at liberty to treat it as a mort- contract, and is not personally liable for gage, neither of them can do so. the debt to the mortgagee, the estate in

Again, if, after a mortgage has been his hands is no longer a collateral secu made, the parties agree that the mort- rity, but is primarily liable for the debt, gagee shall keep the estate as his own, and on his death the heir can not cal

(11) As to these securities in general, index, Slatute Merchant and Statute see 2 Saunders, by Wms., 70, c. n., and Staple; 8 Price, 316.

* In New York, an heir must discharge the mortgage out of his own property. So, also, must a devisee, unless there be an express direction in the will that the mortgage be otherwise paid.-(1 R. S., 749, $ 5.)

which are very nearly related to the vivum vadium before mentioned, or estate held till the profits thereof shall discharge a

upon the executor to redeem the estate as were entitled to the money secured, Mortgages. for his benefit. (2 P. Wms., 664; 5 instead of vesting, as sometimes hapMadd., 96; 3 Myl. & Cr., 763.) But pens, in an infant heir; and where the by dealings with the mortgagee, even property is of much greater value than an alienee of an equity of redemption the sum to be secured, this form iş still may so take upon himself the debt as to occasionally resorted to. But if the restore to the estate its privilege as a mortgagee is obliged to have recourse to mere collateral security. (7 Ves., 333 ; his remedy by toreclosure, he can not, 14 Id., 423; 1 Sim., 453 ; 3 Myl. & K., under such a mortgage, acquire more 607. See 1 Y. & C. N. C., 688.) than an absolute term of years; an es

In order, as it seems, to prevent a tate which is not of so much value as multiplicity of suits, courts of equity the inheritance. Even under a, morthave long acted upon the rule, where gage in fee, the mortgagee, in order to two mortgages have been made by the realize his security, was obliged to resort same mortgagor to the same mortgagee, to the slow and costly remedy of a foreto refuse to allow the mortgagor to re- closure suit, a remedy of which the evil deem one, if the mortgagee insists on was chiefly felt in those cases where it having both redeemed, although the was most often required to be put into mortgages were made at different times, operation—in cases of deficient security. of different estates, and to secure distinct To obviate these inconveniences, it has independent debts; so that, if one of now become common to insert in the the estates is more than sufficient to se- mortgage an authority or power enacure the debt charged on it, it may be bling the mortgagee, at any time after used in aid of any deficiency in the other default in payment of the principal or insecurity. Under this rule the mortgagee terest, to seil the estato to a fair pur. is said to tack one security to the other. chaser, and to repay himself his debt, (2 Vern., 286 ; 2 Ves Jun., 376; 2 Gl. & interest, and costs out of the proceeds. Ja., 47.) And this right to tack a sec. (See the form in the Appendix to this ond mortgage debt to a prior mortgage volume.) This power is always made may be exercised to the exclusion of the exercisable without the mortgagor's conclaims of any third person to whom, in sent; but in order to prevent any surthe mean time, the mortgagor has mort. prise upon the latter, and to enable him gaged the equity of redemption in the to seek for the means of redemption, it first estate, provided the mortgagee, is often provided that the mortgagor when he took his second mortgage, was shall be entitled to three or six months' not aware of such mesne encumbrance. notice of the sale. The mortgagee, hay. (Ambl., 733 ; 6 Ves., 229, n.)* ing the conduct of the sale, is, of course,

Some account of the rules by which disabled from purchasing the estate, eiequity regulates the priorities of several ther directly or through the intervention encumbrancers on the same fund will be of a trustee; under the general rule of found in a note to p. 383, infra. equity, that the interest of a buyer, who

A few remarks may be made, in con- seeks to pay as little as possible, and the clusion, on the forms of mortgages. duty of a trustee for sale, who should Formerly it was much the custom, where endeavor to obtain as much as possible, the mortgagor was tenant in fee-simple, being conflicting and incompatible, can not to part with the freehold, but to grant not be allowed to coexist in the same or demise the land for a long term of person. And the rule can not be relaxyears, with a proviso for redemption; ed even in favor of a sale by auction, this plan had the advantages of econ- supported by every evidence of fairness. omy (the conveyance being shorter and (3 Meriv., 200; 8 Br., P. C., 42, Toml. cheaper), and of leaving to the mortga- ed.; 8 Cl. & Fin., 265.)t gor all the privileges of a freehold, while In Ireland foreclosure is never allowthe term, being personal estate, devolv. ed, the courts invariably directing a ed upon the same class of representatives sale; and, in this country, a sale is often

In New York, where priority is given to the first registered mortgage, the doctrine of tacking mortgages is exploded.--(4 Kent's Comm., 177.)

† In New York, sales of mortgaged premises under powers of sale are regulated by statute. The sale must be at public auction, after twenty-four weeks' public notice by advertisement. Mortgagee, and those claiming under him, may be. come purchasers.—(2 R. S., 546, Ø 3-7.)

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