gagee in fee, or for a term of years; provided that, if the mortgage money and interest shall be paid on a particular day, usually six months after the conveyance, the deed shall be void; or, according to the more modern form, and particularly if the mortgage is in fee, that the mort gagee will convey the premises to the mortgagor free from all incumbrances: the mortgagor then covenants that he will pay the sum borrowed and interest; and for title; that is, that he is seised in fee and has good right to convey, and that if the sum borrowed or interest thereon be not paid, the mortgagee may enter upon the premises and quietly enjoy them, free from all incumbrances whatever; and moreover, that if this sum and interest be not paid, then that he, the mortgagor, will do any other act for assuring the lands to the mortgagee that he may require. Then follows a proviso for quiet enjoyment by the mortgagor until default shall be made in the payment of the mortgage money or interest. These are the clauses that are usually introduced. But of late a power is frequently given to the mortgagee to sell the mortgaged premises, if default in payment of the money be made: and if they consist of houses or buildings, provisions for insurance and for repairing should be inserted, to indemnify the mortgagee for their loss, or to preserve their value, and under them he may himself insure or repair; and the mortgagor cannot redeem without paying the sums so advanced, together with the mortgaged debt.' The mutual interest will be attended to by giving the mortgagor power to lease, which, of himself, he cannot exercise with effect, being a tenant for years, until default is made in payment of the money, and a tenant by sufferance afterwards;" but this power may also be given to the mortgagee. When a power of sale enabling the mortgagee to sell the premises is introduced, the mortgagee need not act on his other remedies but avail himself of his power," which, if the security be sufficient, will give him complete justice in his own hands, as he may exercise this power without the concurrence of the mortgagor, although notice to him is sometimes required.P merchant staple. IV. A fourth species of estates, defeasible on condition 4. Statute subsequent, are those held by statute merchant and and statute 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. 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, 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 seised 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 times 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 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 direct 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. It may be observed, in conclusion, that these securities elegit. by statute staple and statute merchant have long fallen into disuse. 5. Estate by V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is What it is. called an estate by elegit. An elegit is the name of a [161] writ, founded on the statute of Westm. 2, by which, Nature of these three after a plaintiff had obtained judgment for his debt at law, the sheriff gave him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed until his debt and damages were fully paid: and, during the time he so held them, he was called tenant by elegit, and now by stat. 1 & 2 Vict. c. 110, s. 11, the whole of such lands and tenements may be delivered to such tenant by elegit, subject to account in equity for the rents. 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 feudal 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,' 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, permitted 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) 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 last estates. by statute merchant, statute staple, and elegit, with the [162] observation of Sir Edward Coke: "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 estate of inheritance, or of 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," 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 testator be discharged, this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executor:" 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. CHAPTER THE THIRTEENTH. ON ESTATES IN POSSESSION, REMAINDER, 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 adEstates are vantages arising therefrom) begins. Estates therefore, remainder, or 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 re in possession, in reversion. possession. version. I. Estates in 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. [164] II. An estate then in remainder may be defined to be II. Estates in an estate limited to take effect and be enjoyed after another description estate is determined. As 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. remainder, of. |