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his heirs or assigns take advantage of this breach of the condition, and make either an entry or a claim.
Distinction between Condition and Limitation. Yet though strict words of condition be used in the creation of an estate, if on breach of the condition, the estate is limited over to a third person, and does not immediately revert to the grantor, or his representatives, this the law construes to be a limitation and not a condition, because if it were a condition, then upon the breach thereof, only the grantor or his representatives could avoid the estate by entry, and so the third party's interest in remainder, might be defeated by their neglect to enter. But when it is a limitation, the estate of the grantee determines, and that of the third party commences, and he may enter on the lands, the instant the grantee fails to comply with the condition.
Limitation in a Devise. So also if a man by a 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 is deemed a limitation; otherwise no advantage could be taken of the nonpayment, for none but the heir himself could have entered for a breach of condition.
Uncertainty Preserves the Freehold Character. In all these cases of limitations or conditions subsequent, so long as the condition, express or implied, either in deed or law remains urbroken, the grantee may have an estate of freehold, provided the estate, upon which such condition is annexed, be in itself of a freehold nature. For the breach of these conditions, being contingent and uncertain, this uncertainty preserves the freehold, because the estate is capable of lasting forever, or at least for the life of the tenant, if the condition remains unbroken. But where the estate is a chattel interest, which must determine at a time certain, and may determine sooner, this continues a mere chattel, and is not ranked among estates of freehold.
Void Conditions. Express conditions, if they be impossible or become so 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. If they be conditions subsequent to the vesting of the estate, the estate shall become absolute in the tenant. But if the condition be precedent, or be performed before the estate vests, the estate is void, and the grantee takes nothing
There are some estates defeasible upon a condition subsesequent, as: III. ESTATES HELD IN PLEDGE.
Two kinds. Estates held in vadio, in gage, or pledge are of two kinds:
Living pledge, vivum vadium.
Dead pledge, or mortgage, mortuum vadium. Living Pledge, Vivum Vadium. This is where a man borrows a sum from another, and grants him an estate, to hold till he is repaid such sum out of the rents. The estate is void by such condition, as soon as such sum be repaid. The land or pledge is said to be living; it subsists, and survives the debt, and immediately on the discharge of the obligation, results back to the borrower.
Mortgage, Dead Pledge, Mortuum Vadium. This is a very common pledge, and exists, where a man borrows of another a specific sum, and grants him an estate in fee, on condition, that, if he, the mortgagor, shall repay the mortgagee the said sum on a certain time 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 the mortgagee shall then reconvey the estate to the mortgagor. In this case, the land, which is so placed 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.
Dower and Other Encumbrances. 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, which doubt has now been over-ruled by our courts of equity, it became usual to make long terms in the mortgage, with conditions to be void on payment of the mortgage money,
which course has been pursued, mainly because on the death of the mortgagee, such term becomes vested in his personal representatives, who alone in equity are entitled to receive the money lent.
Entry. As soon as the estate is created, the mortgagee may enter on the lands, but is liable to be dispossessed, on payment to him of the mortgage money at the day limited. 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 evicted by the mortgagor.
Equity of Redemption. But here again the courts of equity interpose, and though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at common law, yet the courts will consider the real value of the tenements, compared with the sum borrowed. If the value be greater, they will allow the mortgagor any reasonable time to redeem his estate, paying to the mortgagee his principal, interest and expenses. This advantage allowed to mortgagors is termed the equity of redemption, and this enables a mortgagor to call on the mortgagee in possession of the estate, to redeliver it, and account for the rents and profits received, on the payment of his whole debt and interest, thereby turning the mortuum into a kind of vivum vadium,
Foreclosure. But on the other hand, the mortgagee may either compel the sale of the estate, in order to immediately obtain his money, or else call upon the mortgagor to redeem his estate at once, or in default thereof, to be forever foreclosed from redeeming the same; that is, to lose the equity of redemption, without possibility of recall. Also in some cases of fraudulent mortgages, the mortgagor forfeits this equitable right.
Ejectment Actions. It is not, however, usual for mortgagees to take possession of the estate, unless where the security is precarious or small, or where the mortgagor defaults in payment of interest. In such cases, the mortgagee usually brings an ejectment, and takes the land into his own hands in the nature of a pledge, or 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. But by statute of George II, after payment or tender by the mortgagor, of principal, interest and costs, the mortgagee can maintain no ejectment, but may be compelled to re-assign his securities.
Livery of Seisin. In Glanvil's time, when the universal method of conveyance was by livery of seisin, no pledge was good, unless possession was also delivered to the creditor, to prevent subsequent and fraudulent pledges of the same land. The wisdom of our ancient law is shown, by the frauds which have arisen since the exchange of those public conveyances for more private and secret bargains. IV. ESTATES HELD BY STATUTE MERCHANT AND BY STATUTE
STAPLE. Similar to Living Pledges. These are defeasible on conditions subsequent, and are nearly related to the living pledges before mentioned, or estates held till the profits discharge a debt liquidated. Both these estates are securities for money; that by statute merchant, entered before the chief magistrate of some trading town, pursuant to the statute of Edward I de mercatoribus, the other before the mayor of the staple, viz., the grand mart for the principal manufactures of the kingdom. They were 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 his creditor, till out of the rents and profits of them, the debt may be satisfied. While the creditor holds such lands, he is tenant by statute merchant or statute staple. There is also a similar security, like a statute staple, acknowledged before a chief justice, whereby the benefit of this mercantile transaction extended to all the king's subjects. Bat these are only binding, by the statute of frauds of Charles II, on the lands in the hands of bona fide purchasers, from the day of their recording V. ESTATE BY ELEGIT.
Defined. This is created by operation of law for the security and satisfaction of debts. Elegit is the name of a writ, founded on a statute, 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. This is a mere conditional estate, defeasible as soon as the debt is levied.
Feudal Restraints to Trade. It is remarkable, that the feudal restraints of alienating lands, and charging them with the debts of the owner, were moderated earlier for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores, it is believed that the proprietor of lands was unable to alienate more than a moiety of them. But by the statute de mercatoribus, passed the same year, 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.
Coke's Construction of these Estates. Of these estates, by statute merchant, statute staple and elegit, Coke says: “the tenants have uncertain interests in lands and tenements, and yet they have but chattels and no freeholds, which make them exceptional, 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, and though to recover their estates, they shall have the same remedy as has a tenant of the freehold, yet it is but the similitude of a freehold, and nullum simile est idem."
Chattel Interests. This indeed only proves them to be chattel interests, because they go to the executors, and not to the heir, which is inconsistent with the nature of a freehold, but it does not assign a reason, why the estates should so vest; which reason probably is, that being a security and remedy for personal debts, due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession, that the security and remedy should be vested in those, to whom, if recovered, the debts would belong. On the same principle, if lands be devised to an executor, until out of their profits, the testator's debts be discharged, this interest in lands shall be a chattel interest, and on the death of such executor, shall go to his executors, because they, being liable to pay the original testator's debts, so far as his assets will extend, are entitled to possess that fund, out of which he has directed them paid.
CHAPTER XI.-ESTATES IN POSSESSION, REMAINDER
Time of Their Enjoyment. Having thus considered estates, with regard to their duration, or the quantity of the owners interest therein, we now shall examine them with regard