LITTLETON. If a man before the statute of Donis Conditionalibus had made a gift to a man and to the heirs of his body, upon condition that after issue he should not have power to sell, this condition should have been repugnant and void (w).. Pari ratione, after the statute a man makes a gift in tail, the law tacitè gives him power to suffer a common recovery; therefore to add a condition, that he shall have no power to suffer a common recovery, is repugnant and void. If a man make a feoffment to baron and feme in fee, upon condition that they shall not alien, to some intent this is good, and to some intent it is void; for to restrain an alienation by feoffment, or alienation by deed, it is good, because such an alienation is tortious and voidable; but to restrain their alienation by fine is repugnant and void, because it is lawful and unavoidable. It is said, that if a man infeoff an infant in fee, upon condition that he shall not alien, this is good to restrain alienations during his minority, but not after his full age. It is likewise said, that a man by license may give land to a bishop and his successors, or to an abbot and his successors, and add a condition to it, that they shall not, without the consent of their chapter or convent, alien, because it was intended a mortmain, that is, that it shall for ever continue in that see or house, for that they had it en auter droit, for religious and good uses. Put the case, that a man make a gift in tail to A., the remainder to him and to his heirs, upon condition that he shall not alien; as to the state tail the condition is good, for such alienation is prohibited, as hath been said, by the said statute. But as to the fee-simple, some say, it is rupugnant and void, for the reason that Littleton hath yielded and therefore some are of opinion, that this is a good condition, and shall defeat the alienation for the estate tail only, and leave the fee-simple in the alienee, for that the condition did in law extend only to the state tail, and not to the remainder. ALSO, a man may give lands in tail upon such condition, [Sect.364. that if the tenant in tail or his heirs alien in fee, or in tail, or 224 b.] for term of another man's life, &c. and also, that if all the issue coming of the tenant in tail be dead without issue, that then it ance of intail shall be lawful for the donor and for his heirs to enter, &c. Condition to re-enter on discontinu (w) Lord Coke in another work observes, "that the tenant of lands intailed had before this statute a fee-simple conditional subsequent; for, albeit Britton (chap. 36), who wrote before this statute, saith, that if any purchase to him and his wife, and to the heirs of them lawfully begotten, the donees have presently but an estate of freehold for the term of their lives, and the fee accrueth to their issue, &c. taking the condition to be precedent, yet had the donees at the common law a fee-simple conditional presently by the gift. For if land had been given to a man and the heirs of his body issuing, and before issue he had, before this statute, made a feoffment in fee, the donor should not have entered for the forfeiture, but this feoffment had barred the issue had afterwards; which proveth that he presently by the gift had a fee-simple conditional." 2 Inst. 333.-[Ed.] And by this way the right (40) of the tail may be saved, (41). and death of after discontinuance, to the issue in tail, if there be any (42); so issue, good. as by way of entry of the donor or of his heirs, the tail shall not be defeated by such condition. (43) Quære hoc. And yet if the tenant in tail in this case, or his heirs, make any discontinuance, he in the reversion or his heirs, after that the tail is determined for default of issue, &c. may enter into the land by force of the same condition, and shall not be compelled (44) to sue a writ of formedon in the reverter. * (33)* 224 b. (1 Rep.16.84.) Note, Littleton purposely made parcel of the condition in the copulative, that the tenant in tail should alien, &c. For if a gift in 21 H. 7. 11. tail be made to a man and to the heirs of his body, and if he die without heirs of his body, that then the donor and his heirs shall reenter, this is a void condition: for, when the issues fail, the estate (Dyer, 343 b.) determineth by the express limitation, and consequently the adding of the condition to defeat that which is determined by the limitation of the estate, is void (x), and in that case the wife of the donee shall be endowed, &c. And therefore Littleton, to make the condition good, added an alienation, which amounted to a wrong, and he restrained not the alienation only, (for then presently upon the alienation the donor, &c. might re-enter and defeat the estate tail) *but added, and die without issue; to the end, that the right of the estate in tail might be preserved, and not defeated by the condition, but might be recovered again by the issue in tail in a formedon. And Littleton expressly saith, that the donor and his heirs, after the discontinuance, and after that the estate tail is determined, may re-enter, which is the intention and true meaning of Littleton in this place. And where it is said in this section (quære hoc) this is added by some that understood not this case, and is not in the original (y). ITEM, if (45) a feoffment be made (46) upon such condition, that if the feoffor pay to the feoffee at a certain day, &c. 40 pounds of money, that then the feoffor may re-enter, &c. in this case the feoffee is called tenant in mortgage, which is as (40) de-en in L. and M. and Roh. *225 a. (Mo. 89.) LITTLETON. [Sect. 332. 3. 205 a.] Mortgage. (34)* (45) ascun added in Roh. but not in L. and M. (46) a ascun home added in Roh, but not in L. and M. (x) Vid. Cro. Jac. 415. 448. 695. 3 Co. 19. [Poll. 479. Sir T. Jo. 79.] 3 Mod. 210. Ld. Raym. 101. 204. 2 Vern. 323. 1 Burr. 228. 2 P. Wms. 170. 605. Fearne. Cont. Rem. 168. Cowp. 234. 410. 833. Dougl. 266. 3 T. R. 484. 488.-[Ed.] (r) It is a rule of law, that a condition must defeat or determine the whole of the estate to which it is annexed, and not determine it in part only, and leave it good for the residue. And therefore it has been adjudged, that a condition to determine an estate tail, as if the tenant in tail were dead, was void; because the death of a tenant in tail did not determine the estate tail, but his death without issue. Jermin v. Arscott, 1 Co. 85. a. Corbel's case, 1 Co. 83. b. Sir Anthony Mildmay's case, 6 Co. 40. Cro. Eliz. 379. Moor. 592. And. 356. -[Ed.] much to say, in French, as mortgage, and in Latin mortuum Origin of the vadium. (1) And it seemeth, that the cause why it is called term. 205 a. kinds of mortgage is, for that it is doubtful whether the feoffor (47) 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 so dead (48) to him upon condition, &c. And if he doth pay the money, then the pledge is dead to the tenant, &c. "Mortgage" is derived (s) of two French words, viz. mort, that The different is mortuum, and gage, that is vadium, or pignus. And it is called in Latin mortuum vadium, or morgagium. Now it is called lib.10. cap.68. here mortgage, or mortuum vadium, both for the reason here ex mortgage. (s) Glanvil. & lib. 13. 327. pressed by Littleton, as also to distinguish it from that which is called vivum vadium. Vivum autem dicitur vadium, quia nunquam moritur ex aliquá parte quòd ex suis proventubus acquiratur. As if a man borrow a hundred pounds of another, and maketh an estate of lands unto him, until he hath received the said sum of the issues and the profits of the land, so as in this case neither money nor land dieth, or is lost, (whereof Littleton speaketh Vid. sect. in this chapter) (t), and therefore it is called vivum vadium (z). (47) voyt-poet, in L. and M. and Roh. (48) a luy sur condition, &c. Et s'il paya M. nor Roh. Of (1) See Mr. Butler's note at the end of the volume. Note 5. (z) The subject of mortgages may be considered under three general heads:-1st. the origin and different kinds of mortgages. 2d. Of the several interests of the mortgagor and mortgagee. 3d. Of the equity of redemption. 1st. As to the origin and different kinds of mortgages:-The notion of mortgaging and redemption seems to have been derived to us from the civil law. According to that law, the difference between pledges and things hypothecated was this: the pignus or pledge was, when any thing was obliged for money lent, and the possession passed to the creditor; the hypotheca was, when the thing was obliged for money lent, and the possession remained with the debtor. If the debtor did not redeem the thing pledged, the creditor was to foreclose the redemption of the debtor; and if the money was not paid, the creditor had his actio pignoritia, or hypothecaria, which, when he had pursued, and obtained sentence thereon he might sell the pledge as his own property. But there was this difference between the actio pignoritia and hypothecaria; that the actio pignoritia was only on the person of the debtor to foreclose him, because the pignus was already in the possession of the creditor; but the actio hypothecaria was tam in rem, quam in personam, and was given ad pignus prosequendum contra quemcunque possessorem; because herein the creditor had not the possession of the pledge, but it remained to the debtor. actions, the creditor could not obtain the property of the pledge; and if the money was Until sentence was obtained in these paid before sentence, the pledge was subject to redemption; and where the same thing was pledged to several, those were said to be potiores in pignore to whom the things were first hypothecated. Digest, lib. 20. tit. 6. Corvin, 269, 270, 271. If the money was tendered or paid to the creditor, the contract of pignoration was dissolved, and the debtor might have the pledge back, as a thing lent. This seems to have introduced the notion among us of the debtor's right to redemption. And with them the usucaption, or the right of prescription, did not extinguish the pledge, unless a stranger had held it for thirty years, or the debtor had held it himself for forty years. Digest, lib. 20. tit. 6. The word "mortgage" signifies commonly the same thing as the word "pawn;" that is, the appropriation of the thing given for the security of an engagement: and these two words are used indifferently in the same sense. moveable things, which are put into the hands and keeping of the creditor; and the word But the word "pawn" is more properly applied to "mortgage" signifies properly the right acquired by the creditor upon the immoveables which are appropriated to him by his debtor, although he be not put into possession of *ALSO, as a man may make a feoffment in fee in mortgage, (49) so a man may make a gift in tail in mortgage, and a lease (35)* (49) issint home poit faire done en taile en mortgage, not in L. and M. nor Roh. them. Domat. lib. 3. tit. 1. sect. 1. Another difference between a mortgage and a pledge is, that the former is an absolute pledge to become an absolute interest, if not redeemed at a certain time; but the latter is a deposit of personal effects, not to be taken back but on payment of a certain sum, by express stipulation, or the course of trade, to be a lien upon them. 2 Ves. jun. 378. It was a rule of the feudal law, which prohibited all alienations, that feudalia, invito domino, aut agnatis, non recte subjiciuntur hypothecæ, quamvis fructus posse esse, receptum est, Corvin. Dig. 268; but at the time of Henry the Second, when the alienation of property had become free, two modes of mortgaging lands were in use, which were distinguished by the names of vadium vivum and vadium mortuum. Glanv. lib. 10. c. 8. The former kind is here described by Lord Coke, and is also mentioned by Littleton, sect. 327. post; the latter, which is the ordinary and usual way of mortgaging lands, has been already explained. Mortgagees may be, 1st. either of the freehold and inheritance; or, 2d. of terms for years. The ancient way of making mortgagees of the freehold and inheritance, was by a charter of feoffment, on condition, that if the feoffor or his heirs paid the sum borrowed to the feoffee, or his heirs, at a day appointed, he should re-enter and repossess; and sometimes the condition was contained in the charter of feoffment, and sometimes it was defeasanced by a distinct instrument, bearing date, and executed at the same time. Madox, 318, 319. These sorts of conveyances were at first found to be attended with great inconveniences; as if the money was not paid at the day, so that the condition was forfeited, and the estate became absolute, the estate was thenceforth subject at common law to the dower of the wife of the feoffee, and to all his other real charges and incumbrances; for though if the feoffor performed the condition, then he might re-enter, and repossess himself in his former estate, and consequently was in, above all charges and incumbrances of the feoffee; yet if he did not literally perform the condition by payment of the money at the day, then the estate became legally subject to the charges and incumbrances of the feoffee, though the money should be afterwards paid, and the estate reconveyed to the feoffor. Post, fol. 221, 222. Hardr. 463. Cro. Car. 191. 1 Eq. Abr. 311. 5 Bac. Abr. 4. 1 Bl. Rep. 156. To avoid these inconveniences the second sort of mortgages were adopted, and it became usual to grant only a long term of years by way of mortgage, with condition to be void, upon repayment of the purchase-money; which course is now frequently used, principally, because, on the death of the mortgagee, such term becomes vested in his personal representatives, who now are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be. 2 Bl. Com. 158. But courts of equity, after their jurisdiction became firmly established, put mortgagees in fee upon the right footing, maintaining the power of redemption, as an equitable right inherent in the land, and binding all persons whomsoever, whether claiming in the per (i. e.) by the act of the mortgagee, as tenant in dower, by statute staple, elegit, &c.; or in the post (i. e.) by the act of the law, as tenant by the curtesy, and lord by escheat: and the principle upon which they proceeded was, that the payment of the money does, in the consideration of equity, put the mortgagor in statu quo, since the lands were originally only a pledge for the money lent. Cro. Car. 191. Hardr. 465. 469. 5 Bac. Abr. 4. And since this right of power of redemption has been so understood, mortgages in fee have again become usual; for, although mortgages for terms of years were free from the inconveniences attending mortgages in fee, with respect to tenant by dower, curtesy, &c. yet they were not without objection, as in case of foreclosure on nonpayment, the mortgagee became only a termor, the fee-simple remaining in the mortgagor. Great inconveniences having been suffered by mortgages, from the difficulty and delay attending bills to foreclose, the ingenuity of modern times has framed a mode of conveyance in order to enable the mortgagee, after a given time, to procure his principal and interest by a sole of the mortgaged estate, without being under the necessity of applying to a court of equity. This is done by taking a conveyance of the fee to trustees in trust for the mortgagee, for a term of years subject to redemption, with remainder to the trustees in trust, in default of payment at the time stipulated, to sell the estate, and to apply the purchasemoney, after defraying the expenses incurred in discharging the trust, in the payment of the mortgage money and interest, and then to pay over the residue, if any, to the mortgagor. 1 Pow. Mortg. 13. And it has been expressly determined, that in such case the trustees 30 (36) for term of life, or for term of years, in mortgage (50). And LI TLETON. all such tenants are called tenants in mortgage, according to [Sect. 333. the estates which they have in the land, &c. 205 b.] (50) et not in L. and M. nor Roh. alone may make an absolute irredeemable title without the concurrence of the mortgagor or his representatives. Corder v. Morgan, 18 Ves. 344. Clay v. Sharpe, cited in Corder v. Morgan, 18 Ves. 346. Besides the different kinds of mortgages above mentioned, there is another class termed equitable mortgages; which were first established by the case of Russell v. Russell, 1 Bro. C. C. 209.; a decision frequently lamented. See Ex parte Coombe, 17 Ves. 371. Ex parte A mere deposit of title deeds Whitbread, 1 Rose, 299. Ex parte Hooper, 1 Meriv. 9. upon an advance of money, without a word passing, gives an equitable lien (Ex parte Langston, 17 Ves. 227. Ex parte Kensington, 2 Ves. & B. 83.) even against a purchaser without notice; and such deposit will cover subsequent advances, if it appear by evidence, And the meaning or by implication, that they were made upon the faith of that security. Hiern v. Mill, 13 Ves. 114. Ex parte Langston, supra. Ex parte Kensington, supra. and object of a deposit, may, it seems, be explained by parol evidence. See Ex parte Haigh, 9 Ves. 403. Norris v. Wilkinson, 12 Ves. 199. But a mortgage has been held to be no security for subsequent advances made on the strength of a parol engagement; for where the legal estate has been assigned by way of mortgage, the mortgagee is not entitled to say, I hold this conveyance as a deposit; because the contract under which he holds it is a contract for conveyance only, and not for deposit. Ex parte Hooper, 1 Meriv. 7. It has never yet been decided, how far it is necessary to deliver all the title deeds: or whether that would not be takon to be a sufficient deposit, which could be taken upon looking at of purpose the instruments to amount to evidence, that the estate was meant to be a security, Ex parte Wetherell, 11 Ves. 401.; but it has been held, that the delivery of deeds, for the having a mortgage drawn, will not amount to a deposit, or equitable mortgage. Norris v. Wilkinson, supra. An equitable mortgage will be made good as against assignees. Jones v. Gibbons, 9 Ves. 411. Pye v. Daubez, 2 Dick. 759. And where an assignee bought the bankrupt's estate, and out of the consideration money paid an equitable mortgagee, and took the deeds, which sale was afterwards set aside on the known principles of the court (viz. that a trustee cannot become a purchaser of the estate of which he is a trustee. Ex parte Lacey, 6 Ves. 627. York Buildings Company, v. Mackenzie, 8 Bro. P. C. 42 ed. Toml.), it was held, that the equitable mortgagee did not lose his lien. Ex parte Morgan, 12 Ves. 6. 1 Mad. Ch. 430. Equitable mortgages, however, are not favoured, especially when contradicting a written instrument. Ex parte Coombe, 17 Ves. 360. 2d. Of the several interests of the mortgagor and mortgagee :-With respect to the estate of the mortgagor, though it was formerly doubted whether he had more that a right of redemption, it is now established, that he has an actual estate in equity, which may be devised, granted, and intailed, and of which there is a possessio fratris, and a tenancy by the curtesy. Casborne v. Scarfe, 1 Atk. 603. But as to his possession of the mortgaged premises, he only holds them by the will or permission of the mortgagee, who has been held entitled, by ejectment, and without notice, to recover against him or his tenant. Keeche v. 1 T. R. 378. But though a mortgagor Hail, Dougl. 21. Moss v. Gallimore, Dougl. 279. in possession cannot make a lease to bind the mortgagee, yet a lease of this kind is good against the mortgagor and his heirs, and also against all strangers; and it will entitle the lessee to redeem the mortgage. 2 Cru. Dig. 110. And while the mortgagor continues in possession of the lands mortgaged, he is allowed by the stat. 7 & 8 W. & M. to vote for knights of the shire. With respect to the interest of the mortgagee in the lands mortgaged, as soon as the And if the interest conveyance is executed, he becomes seised or possessed of the legal estate, and may enter into possession, unless prevented by the express terms of the contract. is not paid, he acquires, after giving notice of the mortgage to the tenant in possession, a right to the rent in arrear at the time of such notice, as well as to what accrues afterwards. Moss v. Gallimore, supra. 1 T. R. 334. 2 Ves. & B. 252.; but he cannot entitle himself to rents and profits received by the mortgagor, whilst he was permitted to retain possession. Coleman v. Duke of St. Albans, 3 Ves. 25. Ex parte Wilson, 2 Ves. & B. 252. In Eaton v. Jacques, Dougl. 454. it was held, that a mortgagee of a leasehold estate is not subject to the covenants in the lease, until he has entered into possession: but this decision has been disapproved. See Westerdell v. Dale, 7 T. R. 312. in which Lord Kenyon, C. J. observed that the mortgagee whether in or out of possession is the legal owner, and must |