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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 landsmay 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

benefits of this mercantile transaction is extended to all the [161) 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 bona fide purchasers, from the day of their enrollment, which is ordered to be marked on the record."

d See Book i., c. 8.

13

Mortgages. directed, even where the legal estate is is admissible to show that advances made

mortgaged, and more frequently where subsequently to the deposit were made the mortgage is nothing more than a on the same security. (2 Ves. & B., 79; mere equitable charge on the property, 2 Mon., D. & D., 124.) These mortor where the property is stock, or other gages by deposit are very much in use personal chattels. (2 Myl. & K., 417; among bankers and mercantile men, be but see 2 You. & C., 730; 2 Myl. & Cr., ing recommended by the secrecy, quick419; 7 Sim., 439, 669; 8 Id., 470; 1 ness, and economy of the transaction; Hare, 422, 533.)

but an equitable mortgagee, so constiAn equitable mortgage may be con- tuted, is liable to have his security destituted by any writing which shows an feated by many contingencies, against agreement that the property in question which a regular legal mortgage would is intended to stand as a security for the have secured him. (See Cr. & Ph., debt (2 Salk., 449; 11 Ves., 626); and 323.) even without writing (notwithstanding the Statute of Frauds), if the debtor de- (12) That is to say, his freehold lands, posit the title-deeds relating to the prop- and lands in ancient demesne, but not erty with his creditor as a security. his copyholds. (2 Inst., 397; 4 Id., And where no other object or intention 270; 3 Rep., 80; 8 Ves., 394.) can be shown, it will be presumed that title-deeds delivered by a debtor to his (13) The statute 33 Hen. VIII., c. 39, creditor are so delivered as a security. 8. 50, enacts, that all obligations and (19 Ves., 202, 258; 3 You. & J., 150; 1 specialties, concerning or for the benefit You. & C., 303.) And parol evidence of the crown, shall have the force and

V. Another similar conditional estate, created by operation V. Estate by

elegit. of law, for security and satisfaction of debts, is called an estate by elegit. What an elegit is, and why so called, will be explained in the third part of these Commentaries.

At present I need only mention that it is the name of a writ, founded on the statutee 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 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 years), 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.” e 13 Edw. I., c. 18.

r 18 Edw, I.

6 13 Edw. I.

effect of a statute staple. And the stat- his own benefit without the consent of
ute 13 Eliz., c. 4, subjects the lands of any other person, including, therefore,
"accountants” to the crown to debts to all unprotected estates-tail vested in him,
the crown, incurred at any time during and all estates over which he has a gen-
the accountantship, in the same manner eral power of appointment; and the ef-
as if such debts had been secured by fect of a judgment is given to rules, or-
statute staple at the commencement of ders, and decrees, for payment of money,
the accountantship. (See, also, 12 Eliz., of courts of law and equity:
c. 7; 27 Eliz., c. 3.) By the statute 25 By an enactment of the following ses-
Geo. III., c. 35, the crown has the sion (2 & 3 Vict., c. 11), the statute of
further privilege of selling the debtor's 1 & 2 Vict., c. 110, is deprived of all op-
lands. (See 41 Geo. III., c. 90; 1 & 2 eration so far as concerns the interests of
Geo. IV., c. 121.)

purchasers and mortgagees without no

tice of the judgment, &c., which is (14) The statute of Westminster 2 sought to be enforced against them; so gave the judgment creditor the posses- that if A., a judgment debtor, entitled sion of half only of the debtor's freehold to Blackacre and Whiteacre, sell Black. lands; but the recent statute 1& 2 Vict., acre to B., who has no notice of the c. 110, has extended the creditor's rem- judgment, and retain Whiteacre, the edy to the entirety of the lands, copy- creditor may extend the whole of Whitehold as well as freehold, belonging to acre under the judgment, but can only his debtor, and to all lands, rectories, take one moiety of Blackacre; because, tithes, rents, and hereditaments held in so far as B. is concerned, the judgment trust for the debtor, or over which he has no further operation than belongs to has any disposing power exercisable for it under the statute of Westminster 2. *

With us, the remedy of a judgment creditor has always extended to the whole of the lands, as well as to the whole of the goods and chattels of the debtor. By statute 3 Geo. II., passed in 1732, lands, hereditaments, and real estate within

statute and

chattels.

Estates by I shall conclude what I had to remark of these estates by elegit are

statute merchant, statute staple, and elegit, with the observa

tion of Sir Edward Coke.h “ These tenants have uncertain in( 162] terests in lands and tenements, and yet they have but chatteis

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 assize) as a tenant of the freehold shall have,i yet it is but the similitude 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 their profits the debts due from the

b 1 Inst., 42, 43.

novele disseizine, aux sicum de frank i The words of the statute De Mer- tenement." catoribus are, Puisse porter bref de

(15) This passage is put together from words “estate of inheritance or for life" two places in Co. Litt., a good deal were used in the text, which seem to transposed and altered in parts; the have reference to the estate of the debt. words “estate of inheritance or for life" or, and not to that of the creditor; the do not occur in the original ; and I con- commentator's meaning, it is suggested, ceive that the fact of the land going to being, in more words, that “the creditthe executor, and not to the heir, shows or may take an estate of inheritance or that the estate can in no case be one of for life belonging to his debtor, and hold inheritance.-[COLERIDGE.) The learn- it by elegit, ut liberum tenementum," ed annotator has here, perhaps, miscon- until the debt be paid. ceived the intention with which the

the English colonies were made chargeable with debts, and subject to the like process of execution as personal estate. The practice of selling real estate by virtue of executions has been continued, and become permanently established in the several states of the Union, subject to certain rules, regulations, and restrictions; the most important of which is, that the creditor is required in the first instance to resort to the personal estate as the primary fund, and to look to the real estate only after the personal estate shall have been exhausted and found insufficient. In New York, the land is sold on six weeks' public notice, and in separate parcels, if required by the owner; a certificate of sale is given to the purchaser, which entitles him to a deed from the officer at the expiration of fifteen months, if, in the mean time, the property be not redeemed by the debtor, or by his representatives, or creditors who hold junior judgments against the property. On this subject of the sale of lands by virtue of judgments and decrees, and the regulations established in the several states to guard against hardships and prevent abuses, see 4 Kent's Comm., 428–439.

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 * Co. Litt., 42.

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163

CHAPTER XI.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

Time of enjoyment of estates.

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 remain

the other by act of law, and called a reversion.

der ;

I. Estates in I. Of estates in possession (which are sometimes called es.
possession. tates 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 gener-
al rules, we usually apply them to such estates as are then act-
ually in the tenant's possession. But the doctrine of estates in
expectancy contains some of the nicest and most abstruse learn-
ing in the English law. These will, therefore, require a mi-
nute discussion, and demand some degree of attention."*

3

(1) It must be remembered that stated to be inadmissible may be good through the greater part of this chapter when they are limited to take effect the author is speaking of the common under the Statute of Uses or of Wills. law only, and that many limitations here

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* By the Revised Statutes of New York, an estate in possession is defined to be an estate where the owner has an immediate right to the possession of the land; and an estate in expectancy is defined to be an estate where the right of possession is postponed to a future period. Estates in expectancy are divided into, 1. Estates commencing at a future day, and denominated future estates; and, 2. Reversions. · A future estate is (defined to be) an estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time."-(1 R. S., 723, Ø 8, 9, 10.) The last paragraph was framed by the revisers to comprehend every species of expectant estates created by the acts of parties; viz., remainders strictly so called, future usca, executory devises, and even contingent limitations; and upon a foundation thus laid, the superstructure has been fully carried out. The change thus introduced into this branch of the law will not be attempted to be here noted, except in a few particulars. The reader is referred to the Statutes, and to the notes of the revisers on the subject.-(1 R. S., 721-727; and 3 R. 8., 568-579.)

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