Forms of Voluntary Securities upon Land.

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HIS fubject is the most complicated, and, consequently, the moft difficult branch of our municipal laws, both in theory and practice; which is the unavoidable confequence of that univerfal endeavour which has been exerted to render land property subservient to the wants, the neceffities, and diverfified circumftances of individuals in fociety; of splitting, in idea, what is naturally indivisible; and forcing into commerce the most immoveable of things. For this purpose (Lord Kaimes well obferves *) a privilege has 'been bestowed upon lad-property, not only of being transferred from hand to hand whole and entire, but of being split into parts, * and distributed among many.'-' Land (continues he) is the great ⚫ object of commerce; and it is useful, not only by its product, but by affording the highest fecurity that can be given for payment of ' debt. Thus the property of land is fplit betwixt the fuperior and vaffal, betwixt the debtor and creditor, and betwixt one having a * perpetual, and one having a temporary right.'

We have already confidered the divifion between the fuperior and vaffal, and alfo how it is transferred whole and entire from one man to another: We are now to inquire in what manner, and by what means, the nicer, and lefs natural, divifion has taken place between the debtor and creditor; between one having a perpetual, and another a temporary right.

Tracts, p. 145,

We

We went formerly very minutely into the hiftory of the intereft of money; of the different prohibitions and instructions which have been made against it by the feveral nations, antient and modern, whofe manners have a relation to our own; and we have examined the many fubtle diftinctions made ufe of by the European clergy, to evade and get the better of the feveral regulations against usury which they themselves made. Among the reft, it will be remembered, that a diftinction was made in the cafe of a loan given, which occafioned a lucrum ceffans, or damnum emergens, to the lender; that is, if the lender fold land, or other property which brought him a profit, in order to accommodate the preffing wants of the borrower, the most rigid canonifts allowed an intereft to be taken, in order to balance the lucrum ceffans. The church alfo allowed a perfon to receive the poffeffion of land, to be kept until his wife's portion fhould be paid, ad fuftinenda onera matrimonii.' Fathers who had land, but no ready money, provided their younger children by giving them a portion of it in poffeffion till they should be paid of their patrimony; or, which often happened, when a man in the fame circumftances wanted to give a certain fum to the church, without being poffeffed of the cash, and with an intention to make sale of his land, he followed the fame method. Thefe were properly pledges of land; and, because the profit belonged to the poffeffor, without going to diminish the principal, they were termed dead pledges, mortua vadua, and mortgage. Tranfactions of this kind were even permitted by the canon law, in fome of the cafes before noticed; and the express right of accepting of mortgages upon land was granted to churches and abbeys, by the Popes, in the eleventh and twelfth centuries. The fame privilege was extended by the customs of particular places to the difpofal of the money of minors; and the mortgage became a general and known fecurity for debt. In form, they refembled the Roman antechrefis; which, with them, was an allowed title to poffefs land until repayment of a fun lent, without regarding the intermediate produce of the lands,

VOL. II.

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Since

Since lands themselves might, without doubt, be purchased with money, fo any right affecting them, or their produce, might alfo be bought in the fame manner. When, therefore, upon account of the law, and the general prejudice, a man could not directly lend out his money for a ftipulated intereft, he purchased from the land-holder a rent, or a part of his income, at a certain price. This rent was either the original ground rent, the property of the lord, or it was conftituted or charged upon the land by the proprietor. These were attended with different degrees of fecurity, and different in other confequences, which come now to be explained.

The original rent, the property of the lord, in Normandy, was termed rentes feignoriae; and in England (upon whom the feudal customs of the former country were imposed) rent services; all rents, alfo, due by foccage, i. e. feu holders, or by military tenure, commuted into efcuage certain. With us, taxt ward were rent fervices, and might be levied by diftreffing the tenants, or, as we fay, by poinding the ground. This privilege, peculiar to real debts, must be properly understood before going further. In the early stages of the feudal law, the right of the vaffal was very precarious. It was forfeited upon a variety of faults, of omiffions, as well as commiffions; many of which, to us, seem flight, but in those days ftruck with much more force. The lord, upon thefe occafions, entered upon the premises without ceremony, and ejected his vaffal, which did not appear. to be a wrong in point of juftice, or an impropriety in point of form;: because the poffeffion had, perhaps, recently been bettowed by him, and fo might the more eafily be refumed. Even after feus degenerated by the fubftitution of money, in place of fervices, the conditions impofed appear to us extremely fevere. Si convenerit (faysCraig) ut certus annuus reditus domino folvatur, in quo Gi peccatum

fuerit per annum diem et menfem, dominus fua auctoritate fun'dum ingredi poteft; nam haec conditio neglecta vaffallum poffef'fione feudi privat, omnique jure quod in eo habet, et feudum, do• mino aperit."

Continued

Continued poffeffion, in courfe of time, ftrengthened and enlarged the idea of the vallals intereft in the lands, and diminished that of the lords. The latter was but feldom exerted, and that not confpicuously; and, therefore, in foccage, or feu tenures, where the pecuniary intereft of the fuperior was alone concerned, and not the defence of the kingdom, the abfolute forfeiture of the fee, or the feizure of it by the lord, was judged to be difproportionate, and therefore went out of use. It might be a great crime, attended with the worft confequences, for any number of ward vaffals to fail, or refuse, to appear in defence of the country when attacked; whereas the only failure in the other cafe could be the delay of a payment to an individual. Thefe faults required punishments fomewhat proportionate to their nature. Inftead, then, of entering upon the land, or ejecting the poffeffor, which deprived him altogether of the power of making his payment, the fuperior only feized the moveables locally upon the ground, and detained them in order to distress the tenant, or to force him to make payment. This act of seizure was, and ftill is, competent both in Normandy and England, upon the fole authority of the proprietor, and is termed a distress.

When a sub-vaffal gave a leafe to a tenant for any number of years, upon condition of a return by fixed payment, the rent agreed upon was confidered to be of the fame nature, quoad the parties contractors, as the original payments to the lord, i. e. rent services or feu duties; for recovery of which the tenant was liable to diftrefs. Now, when fuch a proprietor wanted money, he sold so much of this rent, correfponding to the intereft or ftipulated return of the capital agreed on, and charged his lands with it; that is, he consented that the renter should have the fame power of diftrefling the tenants, and poffeffing the lands, as he had himself. In Normandy, this fpecies of fecurity was, and is to this day, one of the common affurances, under the title of a contract of conflitution, or rent conflitué a prix d'argens, for which the renter has a claim against the land, capable of being executed by diftrefs, in the fame manner as the rents foncier,

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foncier, or ground rent. Hence, too, the English rent charge, which was, and ftill is, a common affurance of annuities.

The very fame fpecies of deed was practifed of old in Scotland, of which there are a variety of the originals ftill remaining. Lord Kaimes has published two of them in his Appendix to the Law Tracts, one in the year 1323, and the other in the year 1417. In thofe deeds, there is no obligement to infeft, no alteration of the pro perty, but an acknowledgement of the price, and a confent that the lands of the granter should be diftreffed, in the fame manner as they could be by the proprietor himself. This fecurity entirely vanished out of our practice, and gave place to annuities by infeftment: These yielded to annualrent rights: Next came the heritable bond: And; laft of all, the infeftment in fecurity. We fhall trace the progress. and principles of each in their natural order.

'It will be a hard task (fays Lord Kaimes *) to juftify our fore'fathers for deserting the established form of a rent charge, and for fubftituting in place of it an infeftment of annualrent; than which nothing, in my apprehenfion, can be more abfurd. For here a man, who hath no other intention but to obtain a real fecurity for his money, is transferred, by a fort of hocus pocus trick, into a fervant or vaffal, either of the debtor or his debtor's fuperior. It is im'poffible to conceive any form lefs confiftent with the nature and 'fubftance of the deed to which it relates, than an infeftment of annualrent. The wonder is, how it ever came to be introduced, in

oppofition to the more perfect form of a rent charge. I can difcover no other caufe but one, which hath an arbitrary fway in law, as well as in more trivial matters; and that is, the prevalency of fashion, or opinion. We had long been accuftomed to the feudal law, and to confider a feudal tenure as the only complete title. 6 to land.'

The introduction of the infeftment of annualrent in place of the rent charge may be thus accounted for: Before the ftatute quia emptores,

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