of law, shall, upon the thirty-first day of December, 1845, be attendant upon the reversion or inheritance of any lands, shall, on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years which shall be so attendant as aforesaid by express declaration, although thereby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said thirty-first day of December, 1845, and shall, for the purpose of such protection, be considered in every court of law and of equity to be a subsisting term. The Act further provides (y) that every term of years then subsisting, or thereafter to be created, becoming satisfied after the thirty-first of December, 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any land, shall, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid (z). In the two first editions of this work, some remarks on this Act were inserted by way of Appendix. These remarks are now omitted, not because the author changed his opinion on the wording of the Act, but because the remarks, being of a controversial nature, seemed to him to be scarcely fitted to be continued in every edition of a work (y) Stat. 8 & 9 Vict. c. 112, s. 2; Anderson v. Pignet, L. R. 8 Ch. 180. (z) It has been decided that a term of years assigned to a trustee in trust for securing a mortgage debt, and subject thereto to attend the inheritance, is not an attendant term within this Act; Shaw v. Johnson, 1 Dr. & Sm. 412. Enlargement of long term into fee simple. intended for the use of students, and also because the Act has, upon the whole, conferred a great benefit on the community. Experience has in fact shown that the cases in which purchasers enjoy their property without any molestation are infinitely more numerous than those in which they are compelled to rely on attendant terms for protection; so that the saving of expense to the generality of purchasers seems greatly to counterbalance the inconvenience to which the very small minority may be put, who have occasion to set up attendant terms as a defence against adverse proceedings. And it is very possible that some of the questions to which this Act gives rise may never be actually litigated in a Court of justice. By the Conveyancing Act of 1881 (a), where land is held for an unexpired residue of not less than two hundred years of a term, which 'was originally of not less than three hundred years, without any trust or right of redemption in favour of the freeholder or reversioner, and without any rent, or with a rent which is of no money value or has been released or has ceased to be payable, then the term may be enlarged into a fee simple by a declaration to that effect, made by deed by any of the following persons (namely): (1) Any person beneficially entitled in right of the term, whether subject to any incumbrance or not, to possession of any land comprised in the term (b); (2) any person being in receipt of income as trustee, in right of the term, or having the term vested in him in trust for sale, whether subject to any incumbrance or not; (3) any person in whom, as personal representative of any deceased person, the term is vested, whether subject to any incumbrance or not. The fee simple so acquired is in general subject to the same (a) Stat. 44 & 45 Vict. c. 41, s. 65. (b) In the case of a married woman, the concurrence of her husband is required, unless she be entitled for her separate use. trusts, executory limitations over, rights and equities as the term; and includes the fee simple of all mines and minerals not severed in right or in fact at the time of the enlargement. Such a term as aforesaid may be so enlarged, although it have not the freehold as the immediate reversion thereon: but not if liable to be determined by re-entry for condition broken, or created by sub-demise out of a term incapable of enlargement to fee simple (c). (c) Stat. 45 & 46 Vict. c. 39, s. 11. CHAPTER II. OF A MORTGAGE OF LAND. We have seen (a) that a mortgage forms part of the personal estate of the mortgagee. We will now consider the nature of the interests in land, which are created by a mortgage. At the present day what is generally understood by the term mortgage is a conveyance of land or other property as security for the payment of money. Mortgages are most frequently made to secure the repayment of money borrowed by the owner of the property mortgaged; in which case he incurs a debt, or personal obligation to repay out of whatever means he may possess (b): unless, indeed, it should have been agreed that he should not be under any personal liability of repayment (c). Such mortgages, however, usually include an express covenant for repayment. But in so far as a mortgage is a transfer of property, its object is to confer on the mortgagee a proprietary right, by exercising which he will be enabled to raise the money payable to him; so that he shall have the means of securing himself from loss in the event of his debtor being personally unable to pay, or of attaining the desired end, where there is no personal liability to payment. But though the object of a mortgage of land is nothing more than to pledge the land as security for a money payment, the form, which this transaction has usually assumed in modern English law, is such that the interests of the parties are of a very complicated nature. For, as we shall (a) Ante, p. 468. (b) Bac. Abr. Mortgage (D); Yates v. Aston, 4 Q. B. 182. (c) Mathew v. Blackmore, 1 H. & N. 762. see, a mortgagee of land occupies one position at law, and another in equity. term The origin of the term mortgage appears in Origin of Glanville (d), in whose time either land or goods mortgage. might be pledged as security for a debt. A pledge of land was effected by a conveyance thereof to the creditor to hold until the debt was paid, with an agreement either that the creditor should apply the rents and profits in reduction of the debt, or that he should receive them without any liability to account. In the latter case the transaction was called mortuum radium (which in French is mort gage, whence mortgage); because, although the debtor might redeem the land on payment of the principal sum, in the meantime it was dead or unprofitable to him. The object of the mortuum radium was to give the creditor the profits of the land in lieu of interest; the taking of which, under the name of usury, was anciently regarded as an unchristian abomination (e). But these ancient methods of pledging land seem to have fallen out of use at an early date, and to have been succeeded by a more stringent contract, under which the land was. given in pledge until a certain day fixed for payment, with a stipulation that on failure to pay at the appointed time the land should remain to the creditor in fee (ƒ). Then it came to be the practice to enfeoff the creditor in fee in the first instance, with a proviso (d) Glanv. lib. x. c. 6-8. e) See Plowden on Usury, Part I. Interest was first allowed by law by stat. 37 Hen. VIII. c. 9, by which also interest above ten per cent. was forbidden. By stat. 13 Anne, c. 15 (12 Anne, st. 2, c. 16, in Ruffhead), the legal rate of interest was reduced to five per cent., which remained the highest rate of interest that could be lawfully taken upon the mortgage of any lands, tenements or hereditaments, or any estate or interest therein, until all the (f) See Glanv. x. 6, 7; Bract. |