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14. Who is called tenant in mortgage ?–158.
Between the time of borrowing the money and the time allotted for payment, the mortgagee is called tenant in mortgage.
15. Whence is the origin of granting only a long term of years by way of mortgage ?-158.
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. 16. What is equity of redemption ?-159.
It is a reasonable advantage, allowed to mortgagors, by the Courts of Equity, which 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. 17. What is foreclosure ?–159.
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.
18. What are estates held by statute merchant, and statute staple? -160.
They are very nearly related to the vivum vadium, an 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 of Edward I. de mercatoribus, and thence called a statute merchant; the other pursuant to the statute 27 of Edward III., C. 9, before the mayor of the staple, that is to say, the grand mart of the principal commodities, or manufactures of the kingdom, formerly held by act of parliament in certain trading towns, from whence this security is called a statute staple. 19. What is an Elegit 1–161.
It is another conditional estate, created by operation of law, for security and satisfaction of debts. Elegit is the name of a writ founded on the statute of Westminster 2d, by which, after a plaintiff has recovered judgment for his debt at law, the sheriff gives him possession of one-half 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.
20. Why are estates by statute merchant, statute staple, and elegit, chattels and not freeholds ?–161, 162..
Because, though tenants by statute and elegit may hold ad estate of inheritance, or for life, ut liberum tenementum, until their debt be paid ; yet it shall go to their executors, which is inconsistent with the nature of a freehold.
21. Why do these estates vest in the executors, and not the heir, of the tenant ?–162.
It 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.
OF ESTATES IN POSSESSION, REMAINDER, AND
REVERSION. 1. What may estates be with respect to the time of their enjoy ment 2–163.
They may be either in possession, or in expectancy. 2. What sorts of expectancies are there and how are they created ? -163.
Remainder and reversion. The one is created by the act of the parties; the other by act of law.
3. What is the difference between estates executed and estates executory ?-163.
Those executed are in possession, whereby a present interest passes to and resides in the tenant; estates executory depend on some subsequent circumstance or contingency.
4. What is an estate in remainder 2-164.
An estate in remainder may be defined to be an estate limited to take effect, and be enjoyed, after another estate is determined.
5. When lands are granted to A for troenty years, with remainder to B and his heirs for ever, are there not troo estates 9–164.
Both these interests are, in fact, but one estate ; A is tenant for years, remainder to B in fee.
6. What are the rules laid doron by law, to be observed in the creation of remainders ?-165–168.
1st. There must necessarily be some particular estate, precedent to the estate in remainder.
2d. The remainder must commence, or pass out of the grantor, at the time of the creation of the particular estate.
3d. The remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines.
7. What is the particular estate?—165.
The precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance.
8. Why cannot an estate of freehold be created to commence in futuro ?–166.
Because, at common law, no freehold in lands could pass without livery of seizin, which must operate either immediately, or not at all.
9. Is a remainder an estate commencing in præsenti or in futuro? -166.
It is, to all intents and purposes, an estate commencing in presenti, though to be occupied and enjoyed in futuro.
10. What particular estate will not support a remainder over ? -166, 167.
A lease at will is held not to be such a particular estate as will support a remainder over. 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.
11. If the particular estate is void, or afterward defeated, is the remainder defeated ?-167.
Yes; as where the particular estate is an estate for the life of a person not in esse ; or an estate for life on condition, on breach of which the grantor enters and avoids the estate.
12. Must the remainder and particular estate pass out of the grantor at the same time ?–167.
Yes ; they must commence, or pass out of the grantor, at the same time.
13. Must the remainder vest instantly upon the determination of the particular estate ?–168.
It must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines.
14. Of what sorts are remainders ?–168.
They are either vested or contingent. 15. What are vested or executed remainders ?–168, 169.
They are where the estate is invariably fixed, to remain to a. determinate person, after the particular estate is spent.
16. When are remainders contingent, or executory ?–169.
When the estate is limited to take effect, either to a dubious and uncertain person, or upon a dubious or uncertain event.
17. How must contingent remainders, to a person not in being, be limited ?-170.
They must be limited to some one that may, by common. possibility, or potentia propinqua, be in esse at or before the particular estate determines.
18. Horo is this explained !-169, 170.
If an estate be made to A for life, remainder for heirs of B, if A dies before B, the remainder is at an end ; for during B's life he has no heir," nemo est hæres viventis;" but if B dien first, the remainder then immediately vests in his heirs, who will be entitled to the land on the death of A. This is a good contingent remainder, for the possibility of B's dying before A is potentia propinqua, and therefore allowed in law. But a remainder to the right heirs of B, (if there be no such person as B in esse,) is void. For here there must two contingencies happen ; first, that such a person as B shall be born ; and secondly, that he shall also die during the continuance of the particular estate ; which make it potentia remotissima, a most improbable possibility.
19. Why cannot a contingent remainder of freehold be limited on a particular estate less than freehold ?–171.
Because, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void : it cannot pass out of him without vesting somewhere, and, in the case of a contingent remainder, it must vest in the particular tenant, else it can vest nowhere.
20. How may contingent remainders be defeated ?-171.
By destroying, or determining, the particular estate upon which they depend, before the contingency happens whereby they become vested.
21. Is there a way of preventing this defeat ?–171.
Yes ; trustees may be appointed to preserve the contingent remainders.
22. What is an executory devise 2–172.
An executory devise of lands is such a disposition of them by will, that thereby no estate vests at the death of the devisor, but only on some future contingency.
23, In what points does it differ from a remainder ?-172, 173.
1st. It needs not any particular estate to support it. 2d. By