Chap. 10.] ESTATE BY ELEGIT. IV. A fourth species of estates, defeasible on condition subsequent, are those held by statute merchant, and 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, (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 lands may be delivered to the creditor, till out of the rents and profits of them the debts 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 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 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 enrolment, which is ordered to be marked on the record. V. Another similar conditional estate, created by operation of law, for security [*161] 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 statute (e) 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 (d) See Book I, c. 8. (e) 13 Edw. I, c. 18. of the circumstances under which the loan desired to be tacked was made, must be liable to no impeachment: Maundrell v. Maundrell, 10 Ves. 260; and, though the point has never called for decision, it has been said to be very doubtful, whether a third mortgagee, by taking in the first mortgage, can exclude the second, if the first mortgagee, when he conveyed to the third, knew of the second. Mackreth v. Symmons, 15 Ves. 335. Indisputably, a mortgagee purchasing the mortgagor's equity of redemption, or a puisne incumbrancer, cannot set up a prior mortgage of his own, (nor, consequently, a mortgage which he has got in) against mesne incumbrances of which he had notice. Toulmin v. Steere, 3 Meriv. 224; Mocatta v. Murgatroyd, 1 P. Wms. 393; Morret v. Paske, 2 Atk. 62. Upon analogous principles, if the first mortgagee stood by, without disclosing his own incumbrance on the estate, when the second mortgagee advanced his money, under the pursuasion that the estate was liable for no prior debt; the first mortgagee, in just recompense of his fraudulent concealment, will be postponed to the second. And the rule, as well as the reason, of decision is the same, where the mortgagor has gained any other advantage, in subsequent dealings respecting the mortgaged estate, by the connivance of the mortgagee. Becket v. Cordley, 1 Br. 357; Berrisford v. Milward, 2 Atk. 49. Part of this note is extracted from 2 Hovenden on Frauds, 183, 196.] The doctrine of tacking mortgages does not prevail in the United States. 4 Kent, 176. Here a system of registry exists under which the records of a public office in the county or town in which the lands lie are supposed to give full information of the grants or liens affecting a title, and any one who has a deed or mortgage which he fails to put on record in this office, is liable to have his rights cut off by a subsequent deed or mortgage from' the same grantor, provided the grantee therein receives the same in good faith and for valuable consideration paid, and gets it duly recorded. But such second grantee will not be protected if he actually knew of the existence of the first conveyance at the time of receiving his own, or if he was notified thereof. But a notice afterwards and before his conveyance is recorded will not defeat his priority if he succeeds in getting his conveyance upon record first. 1 Washb. Real Prop. 536, 537; 4 Kent, 173. 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 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, (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 year) (g) 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. (19) I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke. (h) "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 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 [*162] 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 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. CHAPTER XI. OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. 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: (19) The remedy by elegit has been greatly enlarged by recent statutes, which will be referred to hereafter. 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 reversion. (1) 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. II. An estate then in remainder, may be defined to be an estate limited to take effect and be enjoyed after another estate is determined.(2) *As if a [*164] 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 forever: here A is tenant for years, remainder to B in fee. In the first place, an estate for years is created or carved out of the fee, and given to A; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterwards, when added together, being equal only to one estate in fee. (a) They are indeed different parts, but they constitute only one whole; they are carved out of one and the same inheritance; they are both created, and may both subsist, together; the one in possession, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the said term to B for life; and after the determination of B's estate for life, it be limited to C and his heirs forever; this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a division into three portions; there is first A's estate for years carved out of it; and after that B's estate for life; and then the whole that remains is limited to C and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the same thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple: (b) because a fee-simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate; a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee-simple: as 401. is part of 100%. and 60%. is the [*165] remainder of it; wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole 1007. is appropriated, there can be any residue subsisting. (1) An estate in possession exists where the owner is entitled to immediate possession; an estate in expectancy is where the right to possession is postponed to a future period. A remainder is a future estate, to take effect in possession on the determination of a precedent estate which is created by the same instrument. It is a vested remainder when there is a person in being who would have an immediate right to possession upon the ceasing of the precedent estate. It is a contingent remainder if the person to whom, or the event upon which it is limited, is uncertain. A reversion is the residue of an estate left in the grantor, or in the heirs of a testator, and to which he or they will succeed in possession on the determination of a particular estate granted or devised by him. (2) The law regarding remainders has been much changed by statutes in some of the American states, and without attempting to point out the changes specifically, the reader is referred to the 57th Lecture of Chancellor Kent, and to 2 Washb. on Real Property, 264. The author last named gives references to the statutes of the several states. VOL. I.-56 441 Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded. 1. And, first, there must necessarily be some particular estate precedent to the estate in remainder. (c) As, an estate for years to A, remainder to B for life; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason: that remainder is a relative expression, and implies that some part of the thing is previously disposed of; for where the whole is conveyed at once, there cannot possibly exist a remainder; but the interest granted, whatever it be, will be an estate in possession. An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder; it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law, (d) to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder; (e) because at *common law no freehold in [*166] lands could pass without livery of seisin; which must operate either immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession. Therefore, though a lease to A for seven years, to commence from next Michaelmas, is good; yet a conveyance to B of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void.(3) So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A for three years, with remainder to B in fee, and makes livery of seisin to A; hereby the livery of the freehold is immediately created, and vested in B, during the continuance of A's term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seised of his remainder at the same time that the termor is possessed of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in futuro. As no remainder can be created without such a precedent particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to be such a particular estate as will support a remainder over. (ƒ) For an estate at will is of a nature so slender and precarious that it is not looked upon as a portion of the inheritance; and a portion must first be taken out of it, in order to constitute a remainder. Besides, if it be a freehold. remainder, livery of seisin must be given at the time of its creation; and the entry of the grantor to do this determines the estate at will *in the very [*167] instant in which it is made: (g) or if the remainder be a chattel interest, (d) Raym. 151. (f) 8 Rep. 75. (g) Dyer, 18. (c) Co. Litt. 49. Plowd. 25 (e) 5 Rep. 94, (3) This doctrine, however, does not apply to conveyances having operation under the statute of uses; such as bargain and sale, covenant to stand seized, &c., under which the use, until the time limited, will result to the bargainor and his heirs. And by statute in many of the American states the rule as stated in the text is abolished or essentially modified. See 2 Washb. Real Prop. 264. though perhaps the deed of creation might operate as a future contract, if the tenant for years be a party to it, yet it is void by way of remainder: for it is a separate, independent contract, distinct from the precedent estate at will; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken. (h) And hence it is generally true, that if the particular estate is void in its creation, or by any means is defeated afterwards, the remainder supported thereby shall be defeated also: (i) (4) as where the particular estate is an estate for the life of a person not in esse; (k) or an estate for life upon condition, on breach of which condition the grantor enters and avoids the estate; (7) in either of these cases the remainder over is void. 2. A second rule to be observed is this; that the remainder must commence or pass out of the grantor at the time of the creation of the particular estate. (m) As, where there is an estate to A for life, with remainder to B in fee: here B's remainder in fee passes from the grantor at the same time that seisin is delivered to A of his life estate in possession. And it is this which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be even limited on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor, otherwise the remainder is void. (n) Not that the livery is necessary to strengthen the estate for years; but, as livery of the land is requisite to convey the freehold, and yet cannot be given to him in remainder without infringing the possession of the lessee for years, therefore the law allows such livery, made to the tenant of the particular estate, to relate and inure to him in remainder, as both are but one estate in law. (0) *3. A third rule respecting remainders is this: that the remainder must vest in the grantee during the continuance of the particular estate, [*168] or eo instanti that it determines. (p) (5) As, if A be tenant for life, remainder to B in tail: here B's remainder is vested in him, at the creation of the particular estate to A for life: or if A and B be tenants for their joint lives, remainder to the survivor in fee; here, though during their joint lives, the remainder is vested in neither, yet on the death of either of them, the remainder vests instantly in the survivor: wherefore both these are good remainders. But, if an estate be limited to A for life, remainder to the eldest son of B in tail, and A dies before B hath any son; here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate and even supposing that B should afterwards have a son, he shall not take by this remainder; for as it did not vest at or before the end of the particular estate, it never can vest at all, but is gone forever. (g) And this depends upon the principle before laid down, that the precedent particular estate, and the remainder, are one estate in law; they must therefore subsist and be in esse at one and the same instant of time, either during the continuance of the first estate, or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate and the remainder supported thereby :(r) the thing supported must fall to the ground, if once its support be severed from it. (6) (h) Raym. 151. (7) 1 Jon. 58. (p) Plowd. 25. 1 Rep. 26. (i) Co. Litt. 298. (0) Co. Litt. 49.. (4) It is provided otherwise by statute in several of the United States. 2 Washb. Real Prop. 266. (5) This rule is also changed by statute in some of the states. See 4 Kent, 246. (6) [By the feudal law, the freehold could not be vacant, or, as it was termed, in abeyance. There must have been a tenant to fulfill the feudal duties or returns, and against whom the rights of others might be maintained. If the tenancy once became vacant, though but for one instant, the lord was warranted in entering on the lands; and the moment the particular estate ended, by the cession of the tenancy, all limitations of that estate were also at an end. From these principles are deduced the rules, that no freehold remainder can be well created, unless it is supported by an immediate estate of freehold, vested in some person actually in |