is sought to nonsuit a Plaintiff by a Term standing out in his own Trustee, or where a satisfied Term is set up by a Mortgagor against a Mortgagee, in which cases a Jury will be directed to presume a Surrender (c). The Re-conveyance of a legal Estate has, even in Equity, been presumed, after a great lapse of time, 140 years, for instance (d); but although this case was very particularly circumstanced, the Decision, it is said, "has not met with the bation of the Bar (e)." appro 3. Conveyances by way of Mortgage, or otherwise, for Payment of Debts. THE practice of Mortgaging seems to have been introduced into England about the time of Henry 3. It was inconsistent with feudal notions; nor does any thing of the kind appear during the rigid prevalence of that System (ƒ); but when Henry 3 gave licenses for alienation, the two modes of mortgaging, distinguished by Lyttleton (g), vadium vivum, and vadium mortuum, appear to have been adopted. The Jurisdiction, however, of the Chancellor in cases of Mortgage must not be referred to this early period, for Sir Matthew Hale observes, that in the 14 Richard 2, the Parliament would not admit of Text as it was in the first Edition, though I am aware a different doctrine has recently been promulgated in Doe on the dem. of Putland v. Hilder, K. B. Trin. T. 59 Geo. 3. (c) Lade v. Holford, Buller's N. P. 110. Doe v. Staple, 2 T. R. 696. Doe v. Sybourn, 7 T. R. 2. Goodtitle v. Jones, 7 T. R. 47. Roe v. Reade, 8 T. R. 118. (d) Hilary v. Waller, 12 Ves. 239. (e) Sugden's Vend. and Purch. 295. Ed. 5. (f) Treat. of Equity, B. 3. ch. 1. s. 1. (g) Sec. 332. Co. Litt. 205. Redemption (g); nor is it clear when the right of Redemption, which gave the Court of Chancery Jurisdiction in Cases of Mortgage, was first established (h). The first Rule which presents itself on this subject is, that in Equity a Mortgagee is only considered as a Trustee (i), and that a Mortgage, as in the Civil Law (k), is but a Security for the Money lent (), and passes only a Chattel Interest, and does not alter the thing it conveys. In the contemplation of a Court of Equity nothing real passes to the Mortgagee, and the Mortgage conveys nothing in the Land; neither Dower, or Tenancy by the Curtesy (m). So much is it considered as a mere Chattel Interest, that Lands mortgaged to a Testator do not pass under a general Devise by him of his Lands(n); nor are Mortgagees out of Possession allowed to vote on Elections (o). The Equity of Redemption is considered as an Estate in the Land, and may be devised (p), granted, or entailed with Remainders, and such Entail and Remainders may be barred by be barred by a Fine and Recovery, and a Husband may be Tenant by the Curtesy of it (g). If an Advowson be mortgaged, and is absolute in the Mortgagee, and becomes void, the Mortgagee, it seems, at Law, is entitled to present (r), he having the legal Estate; but a Court of Equity will compel him to present such Person as the Mortgagor shall nominate (s). But though, until Foreclosure, the Mortgagor presents, yet where there was an express Covenant in the Mortgage Deed, that the Mortgagee shall present to fill up all the Avoidances until discharged, it was decreed for the Mortgagee (t). The reason why in the absence of an express Covenant a Mortgagee is not allowed for his own benefit to present to a Living, though he be in Possession, and there be no other Security than the Advowson, and the Mortgagor neglects to pay Interest, is because the presentation is a Profit arising from the mortgaged Estate for which the Mortgagee cannot give credit in account upon a Redemption (u). If, however, a Mortgagee presents, the Court will not, after the statutable period, disturb the Presentation (x). When upon a Mortgage the Money is made payable to the Heir or Executor, in such case, before, or at the day of payment, the Mortgagor has an election to pay it to which he pleases (y); but after the (r) Dyer v. Lord Craven, 1 Dick. 662. (s) Croft v. Powell, Com. Rep. 609. arg. Amhurst v. Dawling, 2 Vern. 401. Makensie v. Robinson, 3 Atk. 559Jory v. Cox, Prec. Ch. 71. (t) Gardiner v. Cooke, Dom. Proc. 31 Jan. 1728. (u) Gubbins v. Creed, 2 Sch. & Lefr. 218. (x) Gardiner v. Griffiths, a P. Wms. 404, recognized in Mutter v. Chauvel, 1 Meriv. 493. (y) Co. Litt. 2002. Anon. Freem. 20. Rightson v. Overton, ibid. p. 20; Canning v. Hickes, 1 Vern. 412, S. C. 2 Ch. Cas. 187; and see 1 Ch. Rep. 283.2 Ch. Rep. 220. day of payment is over, (unless there be a re-enfeoffment) (z), and the Mortgage is forfeited at Law, though Equity gives the Mortgagor relief, so as upon payment of the Money he shall have his Land, yet Equity will not revive the election of the Mortgagor to pay it to the Heir or Executor, but he must pay it to the latter (a). But if in the Mortgage neither Heir nor Executor be mentioned, then after the death of the Mortgagee the Law determines it to be paid to the Executor (b). It has been held, that if there be a Mortgage in Fee, and two descents cast, and more due upon it than the value, and the Mortgagor refuses to redeem, yet it shall go to the Executor and not to the Heir, the Equity of Redemption not being foreclosed or released (c). A practice has recently been introduced of conveying Lands by way of Mortgage to a third Person, agreed upon by the Mortgagor and Mortgagee, in Trust, upon non-payment of the Mortgage Money at the time agreed upon for its repayment, and a certain number of days notice, to sell, mortgage, or lease the mortgaged Estate, so as to satisfy the Mortgage, with the usual Covenants where a Power of Sale, &c. is given to Trustees, and a Covenant from the Mortgagor to join in such Sale, &c. but his joining not to be deemed essential to the Title (d). This enables a Mortgagee easily and (2) See Rightson v. Overton, 2 Freem. 21. (a) Culpepper v. Austin, 2 Chan. Cas. 221. (6) Anon. 2 Freem. p. 12. Rightson v. Overton, ibid. p. 20. (c) Tabor v. Grover, 2 Vern. 367. S. C. 2 Freem. 227. (d) See Clay v. Sharpe, 18 Ves. 346, in note. S. C. Sugden's Vend. and Purch. in Appendix, p. 20, last Edition. and Corder v. Morgan, 18 Ves. 344. expeditiously to obtain the Money lent without the delay, expense, and difficulties attending a Bill of Foreclosure. This mode of mortgaging is seldom resorted to except in small Mortgages, but it might, it seems, with great advantage, be adopted in all cases of Mortgage; it being often of great importance to the Mortgagee to have his Money at the time agreed upon for its repayment, and by this mode he may obtain it as soon as a Sale of the Premises is effected. It is not necessary, though it seems advisable, that a Trustee should be interposed, for the same Powers of Sale may be given to the Mortgagee (e). A Mortgage of a Ship at Sea (the forms required by the Register Acts being observed) has been held to be valid (f). The principal occasions on which the attention of Courts of Equity is called towards Mortgages, is upon Bills filed, 1. To Redeem; or 2. To Foreclose; and in respect of what are termed, 3. Equitable Mortgages. 1. An Equity of Redemption is considered as a Title in Equity, and not merely as a Trust, from which in many respects it materially differs (g). Sir Matthew Hale says, " a Power of Redemption is an equitable right inherent in the Land, and binds all Persons in the post or otherwise; because it is (e) Corder v. Morgan, 18 Ves. 344. By the Civil Law, in case the Mortgage Money was not paid at the stipulated time, the Creditor was powered to sell the Pledge, allowing the Debtor two years em after notice given, to redeem it. (f) Thompson v. Smith. (g) Tucker v. Thurstan, 17 Ves. 133. |