Front Page Titles (by Subject) CHAPTER X.: OF ESTATES UPON CONDITION. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER X.: OF ESTATES UPON CONDITION. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ESTATES UPON CONDITION.
Besides the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition;1 being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged,2 or finally defeated.(a)3 And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates, then, upon condition thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed: under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant, or statute staple: 5. Estates held by elegit.
I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office,(b) on breach of which condition **153]it is lawful for the grantor, or his heirs, to oust him, and grant it to another person.(c) For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby.(d) For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention: but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect.(e)
Upon the same principle proceed all the forfeitures which are given by law of life-estates and others, for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple: this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz., that they shall not attempt to create a greater estate than they themselves are entitled to.(f)4 So if any tenants for years, for life, or in fee, commit a felony; the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, “that they shall not commit felony,” which the law tacitly annexes to every feodal donation.
**154]II. An estate on condition expressed in the grant itself is where an estate is granted, either in fee-simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.(g)5 These conditions are therefore either precedent, or subsequent.6 Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A. upon his marriage with B., the marriage is a precedent condition, and till that happens no estate(h) is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid.(i) But if a man grants an estate in fee-simple, reserving to himself and his heirs a certain rent; and that if such rent be not paid at the time limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed.(k) To this class may also be referred all base fees, and fee-simples conditional at the common law.(l) Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body, as this is no tenement within the statute of Westminster the Second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the eighth chapter: as durante viduitate, &c.; these are estates upon condition that the grantees do not marry, and the like. And, on the breach of any of these *[*155subsequent conditions, by the failure of these contingencies; by the grantee’s not continuing tenant of the manor of Dale, by not having heirs of his body, or by not continuing sole; the estates which were respectively vested in each grantee are wholly determinable and void.
A distinction is however made between a condition in deed and a limitation, which Littleton(m) denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limitation: as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l., and the like.(n) In such case the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the 500l.,) and the next subsequent estate, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed, (as if granted expressly upon condition to be void upon the payment of 40l. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.,)(o) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or assigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate.(p) Yet, though strict words of condition be used in the creation of the estate, if on breach of the condition the estate be limited over to a third person, and does not immediately revert to the grantor or his representatives, (as if an estate be granted by A. to B., on condition that within two years B. intermarry with C., and on failure thereof then to D. and his heirs,) this the law construes to be a limitation and not a **156]condition:(q) because if it were a condition, then, upon the breach thereof, only A. or his representatives could avoid the estate by entry, and so D.’s remainder might be defeated by their neglecting to enter; but, when it is a limitation, the estate of B. determines, and that of D. commences, and he may enter on the lands the instant that the failure happens. So also, if a man by his will devises land to his heir at law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition.(r)
In all these instances, of limitations or conditions subsequent, it is to be observed, that so long as the condition, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either an estate of inheritance, or for life; or no estate at all, which is constructively an estate for life. For, the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold;(s) because the estate is capable to last forever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner, (as a grant for ninety-nine years, provided A., B., and C., or the survivor of them, shall so long live,) this still continues a mere chattel, and is not, by such its uncertainty, ranked among estates of freehold.
These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself, or if they be contrary to law, or repugnant to the nature of the estate, are void. In any of which cases, if they be conditions subsequent, **157]that is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in twenty-four hours; or unless he marries with Jane S. by such a day, (within which time the woman dies, or the feoffor marries her himself;) or unless he kills another; or in case he alienes in fee; that then and in any of such cases the estate shall be vacated and determine: here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant.(t) But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant: for he hath no estate until the condition be performed.(u)
There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are.
III. Estates held in vadio, in gage, or pledge; which are of two kinds, vivum radium, or living pledge; and mortuum vadium, dead pledge, or mortgage.
Vivum vadium, or living pledge, is when a man borrows a sum (suppose 200l.) of another; and grants him an estate, as of 20l. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void as soon as such sum is raised. And in this case the land or pledge is said to be living; it subsists, and survives the debt; and immediately on the discharge of that, results back to the borrower.(w) But mortuum vadium, a dead pledge, or mortgage, (which is much more common than the other,) is where a man borrows of another a specific sum (e.g. 200l.) *[*158and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200l. on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land, which is so put in pledge, is by law,7 in case of non-payment at the time limited, forever dead and gone from the mortgagor; and the mortgagee’s estate in the lands is then no longer conditional, but absolute. But, so long as it continues conditional, that is, between the time of lending the money, and the time allotted for payment, the mortgagee is called tenant in mortgage.(x) But as it was formerly a doubt,(y) whether, by taking such estate in fee, it did not become liable to the wife’s dower, and other encumbrances, of the mortgagee, (though that doubt has been long ago overruled by our courts of equity,)(z) it therefore became usual to grant only a long term of years by way of mortgage; with condition to be void on repayment of the mortgage-money: which course has been since pretty generally continued, principally because on the death of the mortgagee such term becomes vested in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be.
As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed, upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now forever dead. But here again the courts of equity interpose; and, though a mortgage be thus forfeited, and the *[*159estate absolutely vested in the mortgagee at the common law, yet they will consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate;8 paying to the mortgagee his principal, interest and expenses: for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption: and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be forever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages,(a) the fraudulent mortgagor forfeits all equity of redemption whatsoever.9 It is not, however, usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious, or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment,10 and take the land into his own hands in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more resembles their hypotheca, which was, where the possession of the thing pledged remained with the debtor.(b)11 But by statute 7 Geo. II. c. 20, after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee can maintain no ejectment; but may be compelled to reassign his securities. In Glanvil’s time, when the universal method of conveyance was by livery of seisin *[*160or corporal tradition of the lands, no gage or pledge of lands was good unless possession was also delivered to the creditor; “si non sequatur ipsius vadii traditio, curia domini regis hujusmodi privatas conventiones tueri non solet;” for which the reason given is, to prevent subsequent and fraudulent pledges of the same land: “cum in tali casu possit eadem res pluribus aliis creditoribus tum prius tum posterius invadiari.”(c) And the frauds which have arisen since the exchange of these public and notorious conveyances for more private and secret bargains, have well evinced the wisdom of our ancient law.12
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 debt 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 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 and satisfaction of debts, is called an *[*161estate 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 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 feodal 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 one-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, 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 *[*162similitude 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 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.
[1 ] As to things executed (a conveyance of lands, for instance,) a condition, to be valid, must be created and annexed to the estate at the time that it is made, not subsequently: the condition may, indeed, be contained in a separate instrument, but then that must be sealed and delivered at the same time with the principal deed. Co. Litt. 236, b. Touch 126. As to things executory, (such as rents, annuities, &c.) a grant of them may be restrained by a condition created after the execution of such grant. Co. Litt. 237, a. Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words “upon condition,” but also the words “provided always,” or “so that,” will make a feoffment or deed conditional. And again, (in his 331st section,) he says, the words “if it happen” will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words “if it happen” will not alone, and by their own force, make a good condition. This distinction is also noticed in Shep. Touch. 122, where it is also laid down that although the words “proviso,” “so that,” and “on condition” are the most proper words to make a condition, yet they have not always that effect, but frequently serve for other purposes: sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition only when attended by the following circumstances:—1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, but standing by itself. 2d. When it is compulsory upon the feoffee, donee, or lessee. 3d. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention, (but, as to this point, see Whichcote vs. Fox, Cro. Jac. 398. Cromwell’s case, 2 Rep. 72, and infra.) 4th. When it is applied to the estate or other subject-matter.
The word “provided” may operate as a condition and also a covenant. Thus, if the words are “provided always, and the feoffee doth covenant,” that neither he nor his heirs shall do such an act; this, if by indenture, is both a condition and a covenant, for the words will be considered as the words of both parties. Whichcote vs. Fox, Cro. Jac. 398. But if the clause have dependence on another clause in the deed, or be the words of the feoffee to compel the feoffor to do something, then it is not a condition, but a covenant only. So, if the clause be applied to some other thing, and not to the substance of the thing granted, then it is no condition. As, if a lease be made of land, rendering rent at B., provided that if such a thing happen it shall be paid at C., this does not make the estate conditional. And a proviso that a lessor shall not distrein for rent may be a good condition to bind him; but not a condition annexed to the estate. See Co. Litt. 203, b. Englefield’s case, Moor, 307, S. C. 7 Rep. 78. Berkeley vs. The Earl of Pembroke, Moor, 707, S. C. Cro. Eliz. 306, 560. Browning vs. Beeston, Plowd. 131.
The word “if” frequently creates a condition, but not always; for sometimes it makes a limitation, as where a lease is made for years, if A. B. shall so long live. Conditions may be annexed to demises for years without any of these formal words, where the intent that the estate should be conditional is apparent. Co. Litt. 204, a., 214, b. Shep. Touch. 123.—Chitty.
[2 ] A particular estate may be limited with a condition that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual as well in relation to things which lie in grant as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate. But such increase of an estate by force of such a condition ought to have four incidents. 1. There must be a particular estate as a foundation for the increase to take effect upon; which particular estate, lord Coke held, must not be an estate at will, nor revocable, nor contingent. 2. Such particular estate ought to continue in the lessee or grantee until the increase happens, or at least no alteration in privity of estate must be made by alienation of the lessee or grantee; though the alienation of the lessor or grantor will not affect the condition; and the alteration of persons by descent of the reversion to the heirs of the grantor, or his alienee, or of the particular estate to the representatives of the grantee, will not avoid the condition. Neither need such increase take place immediately upon the particular estate, but may enure as a remainder to the donee of the particular estate, or his representatives, subsequent to an intermediate remainder to somebody else. 3. The increase must vest and take effect immediately upon the performance of the condition; for, if an estate cannot be enlarged at the very instant appointed for its enlargement, the enlargement shall never take place. 4. The particular estate and the increase ought to derive their effect from one and the same instrument, or from several deeds delivered at one and the same time. Lord Stafford’s case, 8 Rep. 149-153.—Chitty.
[(a) ] Co. Litt. 201.
[3 ] It is a rule of law that a condition the effect of which is to defeat or determine an estate to which it is annexed must defeat the whole of such estate, not determine it in part only, leaving it good for the residue. Jermin vs. Arscot, stated by chief-justice Anderson in Corbet’s case, 1 Rep. 85, b.; and see ibid. 86, b., Chudleigh’s case, 1 Rep. 138, b.—Chitty.
[(b) ] Litt. 378.
[(c) ] Ibid. 379.
[(d) ] Co. Litt. 233.
[(e) ] 9 Rep. 50.
[(f) ] Co. Litt. 215.
[4 ] It is only, however, such an alienation by feoffment with livery of seisin or by suffering a common recovery which works a forfeiture. Deeds under the statute of uses,—ordinary deeds of bargain and sale,—though they may assume to grant a greater estate, really convey no greater interest than the grantor had, and have not the operation alluded to in the text.—Sharswood.
[(g) ] Ibid. 201.
[5 ] The instances of conditions which now most frequently arise in practice are those contained in leases or agreements between lessor and lessee, and are principally conditions subsequent, provided for in the usual clauses of re-entry in case of a breach of a particular, or any covenant in the lease, as non-payment of rent, not repairing, not insuring, not residing on the premises, or in case of assignment, or parting with the possession, or of bankruptcy, or insolvency, &c. See the cases upon this subject, 2 Cruise’s Dig. 10, 11, 13. 4 Cruise, 506. Adams, Ejectm. index, Covenant. 2 Saunders, by Patteson & Williams, index, Forfeiture.—Chitty.
[6 ] Even at common law and in the construction of a deed no precise technical words necessarily make a stipulation precedent or subsequent: neither does it depend upon the circumstance whether the clause has a prior or a posterior place in the deed, so that it takes effect as a proviso; for the same words have been construed to operate either as a precedent or as a subsequent condition, according to the nature of the transaction. Hotham vs. The East India Company, 1 T. R. 645. Acherley vs. Vernon, Willes, 156 The dependence or independence of covenants or conditions, lord Mansfield said, is to be collected from the evident sense and meaning of the parties; and, however transposed they may be in deed, their precedency must depend upon the order of time in which the intent of the transaction requires their performance. Jones vs. Barkley, 2 Doug. 691.
Equity will not allow any one to take advantage of a bequest over, who has himself been instrumental in causing the breach of a condition. Garrett vs. Pretty, stated from Reg. Lib. in 3 Meriv. 120. Clarke vs. Parker, 19 Ves. 12. D’Aguilar vs. Drinkwater, 2 Ves. & Bea. 225. But it is a general rule that where a condition is annexed by will to a devise or bequest, and no one is bound to give notice of such condition, the parties must themselves take notice and perform the condition, in order to avoid a forfeiture. Chauncy vs. Graydon, 2 Atk. 619. Fry vs. Porter, 1 Mod. 314. Burgess vs. Robinson, 3 Meriv. 9. Phillips vs. Bury, Show. P. C. 50. Infancy will be no excuse in such case for non-performance of the condition. Bertie vs. Lord Falkland, 2 Freem. 221. Lady Ann Fry’s case, 1 Ventr. 200. The application of this general rule, however, is subject to one restriction: where a condition is annexed to a devise of real estate to the testator’s heir-at-law, there notice of the condition is necessary before he can incur a forfeiture; for an heir-at-law will be supposed to have entered and made claim by descent, not under the will. Burleton vs. Homfray, Ambl. 259.—Chitty.
[(h) ] Show. Parl. Cas. 83, &c.
[(i) ] Co. Litt. 217.
[(k) ] Litt. 325.
[(l) ] See pages 109, 110, 111.
[(m) ] 380. 1 Inst. 234.
[(n) ] 10 Rep. 41.
[(o) ] Ibid. 42.
[(p) ] Litt. 347. Stat. 32 Hen. VIII. c. 34.
[(q) ] 1 Vent. 202.
[(r) ] Cro. Eliz. 205. 1 Roll. Abr. 411.
[(s) ] Co. Litt. 42.
[(t) ] Co. Litt. 206.
[(u) ] Co. Litt. 206.
[(w) ] Ibid. 205.
[7 ] The student will observe that “by law” is here meant the law as administered in the common-law courts: in equity a different rule prevails.—Chitty.
[(x) ] Litt. 332.
[(y) ] Ibid. 357. Cro. Car. 191.
[(z) ] Hardr. 466.
[8 ] The policy of the statute of limitations (32 Hen. VIII. c. 2) applies as strongly to a mortgaged estate as to any other. So long as the estate can be shown to have been treated as a pledge, so long there is a recognition of the mortgagor’s title, (Hodle vs. Healey, 1 Ves. & Bea. 540, S. C. 6 Mad. 181. Grubb vs. Woodhouse, 2 Freem. 187;) but from the time when all accounts have ceased to be kept by the mortgagee, and provided, also, he has in no other way, either in communications to the mortgagor or in dealings with third parties, (Hansard vs. Hardy, 18 Ves. 459. Ord vs. Smith, Sel. Ca. in Cha. 10,) admitted the estate to be held as a security only, the statute will begin to run, unless the mortgagor’s situation bring him within some of the savings of the statute; and if he do not within twenty years assert his title to redeem, his right will have been forfeited by his own laches. Marquis of Cholmondeley vs. Lord Clinton, 2 Jac. & Walk. 180 et seq. Whiting vs. White, Coop. 4, S. C. 2 Cox, 300. Barren vs. Martin, 19 Ves. 327. But to show that an estate has been treated as one affected by a subsisting mortgage, within twenty years immediately preceding a bill brought for redemption, parol evidence is admissible. Reeks vs. Postlethwaite, Coop. 170. Perry vs. Marston, cited 2 Cox, 295. Edsell vs. Buchanan, 2 Ves. Jr. 84.
In the case of Montgomery vs. The Marquis of Bath, (3 Ves. 560,) a decree was made for a foreclosure as to the share of one of several joint mortgagees; but, it is to be observed, no opposition was made by the mortgagor in that case, and it is very doubtful whether a decree for a partial foreclosure ought ever to be made. See Cockburn vs. Thompson, 16 Ves. 324, n. It is, at all events, certain there can be no foreclosure or redemption unless the whole of the parties entitled to any share of the mortgage-money are before the court, (Lowe vs. Morgan, 1 Br. 368. Palmer vs. The Earl of Carlisle, 1 Sim. & Stu. 425,) it being always the object of a court of equity to make a complete decree, embracing the whole subject, and determining (as far as possible) the rights of all the parties interested. Palk vs. Clinton, 12 Ves. 58. Cholmondeley vs. Clinton, 2 Jac. & Walk. 134. Upon analogous principles, not only the mortgagor, but a subsequent mortgagee, who comes to redeem the mortgage of a prior mortgagee, must offer to redeem it entirely; although the second mortgage may affect only part of the estates comprised in the first, and the titles are different. Palk vs. Clinton, 12 Ves. 59. Reynolds vs. Lowe, cited from Forrester’s MS. in 1 Hovenden’s Suppl. to Ves. Jr. 280. It is true that lord Hardwicke (in ex parte King, 1 Atk. 300) intimated a doubt whether it was an established rule of the court that a mortgagor, who has borrowed from the same party money on the security of two estates, shall be compelled to redeem both if he will have back either estate; but it had previously been decided that in such cases, if one of the securities proves to be scanty, the mortgagor shall not be allowed to bring his bill for the redemption of the other mortgage only. Purefoy vs. Purefoy, 1 Vern. 29. Shuttleworth vs. Laycock, 1 Vern. 245. Pope vs. Onslow, 2 Vern. 286. And modern cases have confirmed the doctrine that the mortgagee may insist on being redeemed as to both his demands or neither, with this reasonable restriction, however,—that a man who happens to be engaged with another in one mortgage only may redeem the same, though the other person concerned therein has also pledged another estate. Jones vs. Smith, 2 Ves. Jr. 376. Cator vs. Charlton, and Collett vs. Munden, cited 2 Ves. Jr. 377.—Chitty.
[(a) ] Stat. 4 & 5 W. and M. c. 16.
[9 ] By the 4 & 5 W. and M. c. 16, if any person mortgages his estate, and does not previously inform the mortgagee, in writing, of a prior mortgage, or of any judgment or encumbrance which he has voluntarily brought upon the estate, the mortgagee shall hold the estate as an absolute purchaser, free from the equity of redemption of the mortgagor.—Chitty.
[10 ] The mortgagee is not now obliged to bring an ejectment to recover the rents and profits of the estate; for it has been determined that, where there is a tenant in possession by a lease prior to the mortgage, the mortgagee may at any time give him notice to pay the rent to him; and he may distrain for all the rent which is due at the time of the notice, and also for all that accrues afterwards. Moss vs. Gallimore, Doug. 279. The mortgagor has no interest in the premises but by the mere indulgence of the mortgagee: he has not even the estate of a tenant at will; for it is held he may be prevented from carrying away the emblements, or the crops which he himself has sown. Ib. 2 Fonblanque on Equity, 258.
If the mortgagor grants a lease after the mortgage, the mortgagee may recover the possession of the premises in an ejectment against the tenant in possession without a previous notice to quit. 3 East, 449. Keech vs. Hall, 1 Doug. 21.—Christian.
But if the landlord mortgages pending a yearly tenancy, the tenant is entitled to six months’ notice from the mortgagee. 1 T. R. 378.—Chitty.
[(b) ]Pignoris appellatione eam proprie rem contineri dicimus, quæ simul etiam traditur, creditori. At eam, quæ sine traditione nuda conventione tenetur, proprie hypothecæ appellatione contineri dicimus. Inst. l. 4, t. 6. 7.
[11 ] It may be shown in equity, by parol evidence, that an absolute deed was intended by the parties merely as a security for money, and therefore a mortgage. Hiester vs. Madeira, 3 W. & S. 384. Walton vs. Cronly, 14 Wend. 63. Blakemore vs. Byrnside, 2 English, 505. And even where the intention of the parties is evidenced neither by written nor oral declarations at the time, wherever the concomitant circumstances show a deed to have been really meant as a pledge only, it will be treated as a mortgage. Hasnet vs. Dundas et al., 4 Barr, 178. Wharf vs. Howell, 5 Binn. 499. Even if the parties have expressly agreed that it shall not be a mortgage, but an absolute deed, to become wholly so if the money be not paid at the time stipulated, it is nevertheless a mortgage. Rankin vs. Mortimere, 7 Watts, 372. If the instrument or transaction be settled to be a mortgage, all restraints upon the equity of redemption are void, as oppressive and against the policy of the law. Johnston vs. Gray, 16 S. & R. 361.
There may, however, be a sale of land with an agreement that the vendor may re-purchase within a stipulated period of time at a fixed price; and such an arrangement is not a mortgage. In different cases we find different particulars stated as being criteria by which to distinguish whether the instrument be a mortgage or an absolute sale. Each of these may have weight, but it is not safe to designate the insertion or omission of any one clause or circumstance as conclusive; for that would be adopted by the rapacious and submitted to by the needy, and the wholesome rule now established would become useless. The cases, however, seem to admit the possibility of a deed absolute on its face, and a defeasance agreeing to reconvey if the money be paid on a certain day, and that the latter may be unavailing unless the money be paid at the time specified. Among the considerations which weigh are the value of the property, and whether there arises from the transaction a debt for which the grantor would be liable if the land, from failure of title or otherwise, proves worthless. So it seems the agreement to reconvey must be a subsequent and distinct matter, not in the contemplation of the parties when the sale was made and deed delivered. In such case the agreement to reconvey will amount only to an executory agreement. Dates and papers of this kind may be affected if it can be shown that the whole was merely a scheme or contrivance, that in reality it was a loan merely, and that the defeasance was understood and agreed on in the original arrangement, and the discrepancy of dates was merely accidental or with a sinister design. Kerr vs. Gilmore, 6 Watts, 405. Kelly vs. Thompson, 7 Watts, 401. Colwell vs. Woods, 3 Watts, 188. Stower vs. Stower, 9 S. & R. 434. Bennock vs. Whipple, 3 Fairf. 346. Hillhouse vs. Dunning, 7 Conn. 143. Russell vs. Southard, 12 How. U. S. 139.—Sharswood.
[(c) ]L. 10, c. 8.
[12 ] An experiment made in the counties of York and Middlesex, to counteract, by registration, the inconveniences alluded to in the text, is mentioned by our author (at the close of the 20th chapter of this book) as one of very doubtful utility in practice, however plausible in theory.
If a mortgagee neglect to take possession of, or if he part with, the title-deeds of the mortgaged property, with a view to enable the mortgagor to commit frauds upon third persons, he will be postponed to encumbrancers who have been deceived and induced to advance money by his collusion with the mortgagor; but the mere circumstance of not taking or keeping possession of the title-deeds is not of itself a sufficient ground for postponing the first mortgagee, unless there be fraud, concealment, or some such purpose, or concurrence in such purpose, or that gross negligence which amounts to evidence of a fraudulent intention, (Evans vs. Bicknell, 6 Ves. 190. Martinez vs. Cooper, 2 Russ. 216. Barnett vs. Weston, 12 Ves. 133. Bailey vs. Fermor, 9 Pr. 267. Peter vs. Russell, Gilb. Eq. Rep. 123;) and, of course, a prior encumbrancer, to whose charge on the estate possession of the title-deeds is not a necessary incident cannot be postponed to subsequent encumbrancers because he is not in possession of the title-deeds. Harper vs. Faulder, 4 Mad. 138. Tourle vs. Rand, 2 Br. 652.
Among mortgagees, where none of them have the legal estate, the rule in equity is that qui prior est tempore potior est jure; and the several encumbrances must be paid according to their priority in point of time. Brace vs. Duchess of Marlborough, 2 P. Wms. 495. Clarke vs. Abbot, Bernard Ch. Rep. 460. Earl of Pomfret vs. Lord Windsor, 2 Ves. Sen. 486. Maundrell vs. Maundrell, 19 Ves. 260. Mackreth vs. Symmons, 15 Ves. 354. But when, of several persons having equal equity in their favour, one has been fortunate or prudent enough to get in the legal estate, he may make all the advantage thereof which the law admits, and thus protect his title, though subsequent in point of time to that of other claimants: courts of equity will not interfere in such cases, but leave the law to prevail. In conformity with this settled doctrine, if an estate be encumbered with several mortgage-debts, the last mortgagee, provided he lent his money bona fide and without notice, may, by taking in the first encumbrance, carrying with it the legal estate, protect himself against any intermediate mortgage: no mesne mortgagee can take the estate out of his hands without redeeming the last encumbrance as well as the first. Wortley vs. Birkhead, 2 Ves. Sen. 573. Morret vs. Paske, 2 Atk. 53. Frere vs. Moore, 8 Pr. 487. Barnett vs. Weston, 12 Ves. 135. But, to support the doctrine of tacking, the fairness of the circumstances under which the loan desired to be tacked was made must be liable to no impeachment, (Maundrell vs. 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 vs. Symmons, 15 Ves. 335. Indisputably, a mortgagee purchasing the mortgagor’s equity of redemption, or a prisne encumbrancer, cannot set up a prior mortgage of his own (nor, consequently, a mortgage which he has got in) against mesne encumbrances of which he had notice. Toulmin vs. Steere, 3 Meriv. 224. Mocatta vs. Murgatroyd, 1 P. Wms. 393. Morret vs. Paske, 2 Atk. 62. Upon analogous principles, if the first mortgagee stood by, without disclosing his own encumbrance on the estate, when the second mortgagee advanced his money, under the persuasion 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 vs. Cordley, 1 Br. 357. Berrisford vs. Milward, 2 Atk. 49. Part of this note is extracted from 2 Hovenden on Frauds, 183, 196.—Chitty.
[(d) ] See book i. c. 8.
[(e) ] 13 Edw. I. c. 18.
[(f) ] 18 Edw. I.
[(g) ] 13 Edw. I.
[(h) ] 1 Inst. 42, 43.
[(i) ] The words of the statute de mercatoribus are “puisse porter bref de novele disseisine auxi, sicum de franktenement.”
[(k) ] Co. Litt. 42.