If the purchaser incumbrance at the time of his purchase, he term. bring the term into action. If the rent-charge should be claimed, the trustee of the term will at once interfere, and inform the claimant that, as his rent-charge was made subsequently to the term, he must wait for it till the term is over, which is in effect a postponement sine die. In this manner, a term becomes a valuable protection to any person on whose behalf it is kept on foot, as well as a source of serious injury to any incumbrancer, such as the grantee of the rent-charge, who may neglect to procure an assignment of it on his own behalf, or to obtain a declaration of trust in his favour from the legal owner of the term. For it will be observed that, if the grantee of the rent-charge had obtained from the persons in whom the term was vested, a declaration of trust in his behalf, they would have been bound to retain the term, and could not lawfully have assigned it to a trustee for the purchaser. If the purchaser, at the time of his purchase, should has notice of the have had notice of the rent-charge, and should yet have procured an assignment of the term to a trustee cannot use the for his own benefit, the Court of Chancery would, on the first principles of equity, prevent his trustee from making any use of the term to the detriment of the grantee of the rent-charge (x). Such a proceeding would evidently be a direct fraud, and not the protection of an innocent purchaser against an unknown incumAn exception. brance. To this rule, however, one exception has been admitted, which reflects no great credit on the gallantry, to say the least, of those who have presided in the Court of Chancery. In the common case of a sale of lands in fee simple from A. to B., it has been holden that, if there exist a term in the lands, created prior to the time when A.'s seisin commenced, or prior to his marriage, (r) Willoughby v. Willoughby, 1 T. Rep. 763; 3 Sugd. Vend. and Pur. 82, of term. an assignment of this term to a trustee for B. may be Dower barred made use of for the purpose of defeating the claim of by assignment A.'s wife, after his decease, to her dower out of the premises (y). Here B. evidently has notice that A. is married, and he knows also that, by the law, the widow of A. will, on his decease, be entitled to dower out of the lands. Yet the Court of Chancery permits him to procure an assignment of the term to a trustee for himself, and to tell the widow that, as her right to dower arose subsequently to the creation of the term, she must wait for her dower till the term is ended. We have already seen () that, as to all women married after the first of January, 1834, the right to dower has been placed at the disposal of their husbands. Such husbands, therefore, have no need to request the concurrence of their wives in a sale of their lands, or to resort to the device of assigning a term, should such concurrence not be obtained. executors or ad As every term of years, however long, is only a chat- A term passes to tel interest, it will pass, on the decease of its owner, ministrators. to his executors or administrators. If, therefore, the trustee, in whom such a term as we have been speaking of was vested, should happen to die, his executors or administrators will be trustees of the term; and, as the term, though held merely in trust, constitutes bona no- Trust term is tabilia of the trustee in the diocese in which the lands bona notabilia. lie (a), care must be taken that the will of the trustee be proved, either before the bishop of that diocese, or, if there be goods of the deceased in any other diocese, then in the prerogative Court of the archbishop of the province. But, when a term has been assigned to The owner of attend the inheritance, the owner of such inheritance is not regarded, in consequence of the trust of the term (y) 3 Sugd. Vend. and Pur. 75; Co. Litt. 208 a, n. (1). (x) Ante, p. 175. (a) See ante, p. 311. the inheritance has a real in his favour, as having any interest of a personal nature, even in contemplation of equity; but as, at law, he has a real estate of inheritance in the lands, subject to the term, so, in equity, he has, by virtue of the trust of the term in his favour, a real estate of inheritance, in immediate possession and enjoyment (b). (b) 3 Sugd. Vend. and Pur. 92. CHAPTER III. OF A MOᎡᎢᏀᎪᏀᎬ ᎠᎬᏴᎢ . sonal interest in land in equity only. A MORTGAGE debt is an interest in land of a personal A mortgage nature, recognized as such only by the Court of Chan- debt is a percery, in its office of administering equity. In equity, a mortgage debt is a sum of money, the payment whereof is secured, with interest, on certain lands; and being money, it is personal property, subject to all the incidents which appertain to such property. The Courts of law, on the other hand, do not regard a mortgage in the light of a mere security for the re-payment of money with interest. A mortgage in law is an absolute conveyance, subject to an agreement for a re-conveyance on a certain given event. Thus, let us suppose freehold lands to be con- Example. veyed by A., a person seised in fee, to B. and his heirs, subject to a proviso, that on re-payment on a given future day, by A. to B., of a sum of money then lent by B. to A., with interest until re-payment, B. or his heirs will re-convey the lands to A. and his heirs; and with a further proviso, that until default shall be made in payment of the money, A. and his heirs may hold the land, without any interruption from B. or his heirs. Here we have at once a common mortgage of freehold land. A., who conveys the land, is called the mortgagor; B., who lends the money, and to whom the land is conveyed, is called the mortgagee. The conveyance of the land from A. to B., gives to B., as is evident, an estate in fee-simple at law. He thenceforth becomes, at law, the absolute owner of the premises, subject to the agreement under which A. has a right of enjoyment, until the day named for the payment of the money (a); on which day, if the money be duly paid, B. has agreed to re-convey the estate to A. If, when the day comes, A. should repay the money with interest, B. of course must re-convey the lands; but if the money should not be repaid punctually on the day fixed, there is evidently nothing on the face of the arrangement to prevent B. from keeping the lands to himself and his heirs for ever. But upon this arrangement, a very different construction is placed by a Court of law and by a Court of equity, a construction which well illustrates the difference between the two. The Courts of law, still adhering, according to their ancient custom, to the strict literal meaning of the terms, hold, that if A. do not pay or tender the money punctually on the day named, he shall lose the land for ever; and this, according to Littleton (b), is the origin of the term mortgage or mortuum vadium, “for that it is doubtful whether the feoffor will pay at the day limited, such sum or not; and/if he doth not pay, then the land which is put in pledge, upon condition for the payment of the money, is taken from him for ever, and is dead to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the tenant, &c." Correct, however, as is Littleton's statement of the law, the accuracy of his derivation may be questioned; as the word mortgage appears to have been applied, in more early times, to a feoffment to the creditor and his heirs, to be held by him until his debtor paid him a given sum; until which time he received the rents without account, so that the estate was unprofitable or dead to the debtor in the mean time (c); the rents being taken in lieu of interest, (a) See as to this, Doe d. Roylance v. Lightfoot, 8 Mee. & W. 553; Doe d. Parsley v. Day, Q. B. Trin. 1843, 6 Jurist, 913. (b) Sect. 332. (c) Glanville, lib. 10, cap. 6; Coote on Mortgages, ch. 2, |