with a contingent remainder at law in the same terms. So under a trust for A. for life and after his death to the children of B., the trust for the children of B. does not fail upon the death of A. before children of B. exist.

If a contingent limitation be made without any preceding estate, or if a contingent limitation do not vest until after the determination of the preceding estate, the intermediate interest, unless otherwise disposed of, results to the settlor or his heir, or falls into the residue of his estate.

The rule in Shelley's Case, by which limitations in the form of remainders to the heirs or to the heirs of the body, after an estate of freehold in the ancestor, are referred to the estate of the ancestor, is applied by analogy in construing the like limitations of equitable estates, and upon the same principles upon which it is applied to legal limitations. But it can be applied only where the limitations to the ancestor and to the heirs are homogeneous, either both legal or both equitable; if the estate limited to the ancestor is equitable and the remainder to the heirs is legal, or conversely, the rule is not applicable. Where both the limitations are legal, a trust imposed upon one of them does not prevent the application of the rule to the legal limitations; for a court of law, in construing legal limitations, takes no notice of trusts.

ID., 244. But the rules of limitation apply only to express declarations of trust, and have no application to those equitable estates, which, though corresponding with legal estates, arise by construction of equity. Such are the constructive trusts or equitable estates and interests based upon the payment of the consideration of a purchase—or which arise from a mere contract to purchase or resulting trusts which arise upon a legal conveyance not disposing of the whole equitable interest, or failing in effect to dispose of it. Trusts and equitable estates thus arising are, for the most part, measured and limited by the legal estates and interests on which they are imposed. Thus, the equitable estate attributed to the payment of a consideration is co-exten

sive with the legal estate to which it is referred; so a resulting trust includes the whole undisposed of estate to which it applies; so by a contract of sale which equity would specifically enforce the purchaser may acquire an equitable estate in fee or other the whole interest which the vendor contracts to sell without any technical limitation.

ID., 473. Trusts for conversion, charges of money for portions, legacies, debts, etc., constituting equitable interests in land of a kind peculiar to equity, and having no correspondence with legal estates, may also be limited to take effect at a future time or upon the happening of some event or contingency, subject only to the rule against perpetuities.

WILLIAMS, REAL PROP. (17th ed.), 430. Contingent remainders may also be limited of trust estates. But between such contingent remainders, and contingent remainders of estates at law, there was also this difference, that whilst the latter were destructible, the former were not. The destruction of a contingent remainder of an estate at law depended, as we have seen, on the ancient feudal rule, which required a continuous and ascertained possession of every piece of land to be vested in some freeholder. But in the case of trust estates, the feudal possession remains with the trustee. And, as the destruction of contingent remainders at law defeated, when it happened, the intention of those who created them, equity did not so far follow the law as to introduce into its system a similar destruction of contingent remainders of trust estates. It rather compelled the trustees continually to observe the intention of those whose wishes they had undertaken to execute.

BOOK IV.

RIGHTS LESS THAN OWNERSHIP.

Many of these rights have been more conveniently discussed in other connections. Easements, profits a prendre and other incorporeal hereditaments have been treated at length, pp. 22-37, supra; equitable interests generally, under the description of Trusts, pp. 165-178 and 397-400; contingent future interests, pp. 333-357; powers of appointment, pp. 383-390; rights of entry, pp. 300-315, 358-363 and 457469; escheat and possibilities of reverter, pp. 363-369, and creditors' rights, pp. 525-531. As the law of mortgages is a composite of legal and equitable relations, it has seemed best to deal with it separately in this place.

CHAPTER I.

MORTGAGES.

LIT., § 332. Of Estates upon Condition.-Item, if a feoffment be made 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 morgage, which is as much to say in French mort gage, and in Latin mortuum vadium. And it seemeth that the cause why it is called mortgage is, for that it is doubtful whether the feoffor will pay at the day limited such summe 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 to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the tenant, &c.

§ 333. Also, as a man may make a feoffment in fee in morgage, so a man may make a gift in tayle in morgage, and a lease for terme of life, or for terme of yeares in morgage. And all such tenants are called tenants in morgage, according to the estates which they have in the land.

2 BL. COM., 157-160. There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are,

Estates held in vadio, in gage, or pledge; which are of two kinds, vivum vadium, 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. 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.) and 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, 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. But as it was formerly a doubt 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), 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

'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.