MORTGAGE. necessary to consider the distinctions in that law between pledges and things hypothecated. The pignus, or pledge, was, when any thing was obliged for money lent, and the possession passed to the creditor. The hypotheca was, when the thing obliged was for money lent, and the possession remained with the debtor. Now in case of goods pignorated, the creditor was obliged to the same diligence in keeping them, as he used about his own; so that if the goods were lost by the negligence of the creditor, an action lay as for a deposit; for the property being transferred to the creditor for a particular purpose, he was to keep them as his own. If the creditor did not redeem the thing pledged, the creditor was to foreclose the redemption of the debtor; and if the money was not paid, the creditor had his actio pignoritia, or hypothecaria, which, when he had pursued, and obtained sentence thereon, he might sell as his own property; but there was this difference between the actio pignoritia and hypothecaria; that the actio pignoritia was only on the person of the debtor to foreclose him, because the pignus was already in the possession of the creditor; but the actio hypothecaria was tam in rem, quam in personam, and was given ad pignus prosequendum contra quemcunque possessorem; because here the creditor had not the possession of the pledge, but it remained to the debtor; and till sentence was obtained in these actions, the creditor could not obtain the property of the pledge; and if the money was paid before sentence, the pledge was subject to redemption; and where the same thing was pledged to several, those were said to be potiores in pignore, to whom the things were first hypothecated. If the money was tendered or paid to the creditor, the contract of pignoration was dissolved, and the debtor might have the pledge back, as a thing lent; which seems to Cro. Jac. 245; 2 Ves. jun. 378. c Justin. 592. C Digest, lib. 20, tit. 6; Corvin. 269, 270, 271. have introduced the notion among us of the debtor's right MORTGAGE. to redemption, and with them the usucaption, or the right of prescription, did not extinguish the pledge, unless a stranger had held it for thirty years, or the debtor had held it for forty years'. In the feudal law the rule was, feudalia, invito domino, aut agnatis, non recte subjiciuntur hypothecæ, quamvis fructus posse esse, receptum est, and the reason of this rule was. because the feud was filled with a tenant from the lord's original bounty, on whom he depended for his personal service in war and peace; and therefore the feudiary could not obtrude a tenant on him without his leave, who might be less capable of those services; and therefore as the tenant could not originally alien without licence, so he could not mortgage. But when a licence of alienation was given about the time of Hen. 3, and it became a maxim in law, that the purity of a fee-simple imported a power of disposing of it as the owner pleased; there were two ways of mortgaging lands introduced, which Littleton distinguishes by the names of vadium vivum and vadium mortuum. Different kind. of mortgages. "The vadium vivum is, where a man borrows 100l. of Vadium vivum. another, and makes an estate of lands to him, till he hath received the said sum of the issues and profits of the lands; and it is called vadium vivum, because neither the money nor the land dieth; for the lands are constantly paying off the money, and the lands are not left as a dead pledge, in case the money be not paid." This seems to have been the ancient way of mortgaging; for when they held, that the lands themselves could not be hypothecated, they used to subject the usufructus, which, however, originally continued only during the life of the feudiary, but afterwards when there was a free liberty given of alienation, then the feudiary could pledge the usufructus of the land at pleasure; but because, in this way of pledging, the lender Corvin. 268. Digest, lib. 20, tit. 6. MORTGAGE. Vadium mor tuum. receives his money by degrees only, and in small parcels, which is very troublesome, this way of pledging has fallen into disuse h The vadium mortuum is so called by Littleton, because it is doubtful whether the feoffor will pay the money at the day limited or not; and if he do not pay, then the land, which is but in pledge upon condition for payment of the money, is taken from him for ever, and so dead to him; and if he do pay it, then the pledge is dead to the mortgagee, or tenant of the land 1. Mortgages of this kind are of two sorts; 1st, Mortgages of the freehold and inheritance; and 2dly, Mortgages of terms of years. As to mortgages of the freehold and inheritance, the ancient way wss to make a charter of feoffment, on condition that if the feoffor, or his heirs, paid the sum to the feoffee, or his heirs, he should re-enter and re-enjoy; and the condition was sometimes contained in the charter of feoffment, and sometimes by a separate charter*; for as a man might annex a condition to his feoffment, (for cujus est dare, ejus est disponere,) so he might annex a condition by another deed, bearing date and executed at the same time; and being executed at the same time, it is really but one and the same disposition qua incontinenti fiunt in esse videntur; but a defeasance or condition annexed after the feoffment executed comes too late, because the livery corum paribus, attesting the infeudation without any condition, the tenant must hold the land according to the tenure of the investiture; but of rents, annuities, or warranties, which are things executory, these may be defeated by defeasances made at the time of their creation, or any time after; because these do not require the notoriety of livery to make h Co. Lit. 205; 2 Black. Com. 117; see Mad. Formulare, 136. Lit. s. 322; Co. Lit. 205; and see Crag. Jus. Feud. 224. * See Maddox, 318, 319. an investiture; and, therefore, being created by deed only, MORTGAGE. they may be defeated, or destroyed by deed alone'. These kinds of conveyances were, however, formerly subject to many inconveniences; for if the money was not paid at the day, so that the estate became absolute, the estate was thenceforth held to be subject to the dower of the feoffee, and all other his real charges and incumbrances; for though the feoffor, if he performed the condition, might re-enter, and re-possess himself in his former estate, and consequently was in above all the charges and incumbrances; yet, if he did not literally perform the condition, by payment of the money at the day, then the estate was considered to be legally subject to the charges and incumbrances of the feoffee, though the money was afterwards paid, and the estate afterwards re-conveyed to the feoffor TM. For till the time of Henry 8, the widow of a trustee held her dower, the husband his curtesy, the lord his escheat, and the king his forfeiture, free from the trust. To avoid these inconveniences, therefore, the second kind of mortgages were adopted, that is to say, grants for long term of years, by way of mortgage, with condition to be void, upon repayment of the mortgage money: a course which is still frequently used, principally because, on the death of the mortgagee, such term becomes vested in the personal representatives, who (as will be shown hereafter) are entitled in equity to receive the money lent, of whatever nature the mortgage may be". Afterwards, however, the courts of equity grew in power, and their jurisdiction became firmly established, they put mortgages in fee upon the right footing, maintaining the power of redemption, as an equitable right inherent in the land, and binding all persons whomsoever, whether claiming in the per, i.e. by the act of the [BOOK II. PART II. MORTGAGE. mortgagee (as tenant in dower, by statute staple, elegit, &c.) or in the post, i. e. by the act of the law, (as tenant by the curtesy, and the lord by escheat); and the principle upon which they proceeded was, that the payment of the money does, in the consideration of equity, put the mortgagor in statu quo, since the lands were originally only a pledge for the money lent". II. WHAT CONVEYANCE SHALL BE DEEMED A MORTGAGE. WHILST the strict rules of the feudal system were permitted to remain checks upon the free alienation of real property, no idea was entertained of making it subservient to the ordinary exigencies of its owner, by suffering it to become the subject of a pledge. The landholder, therefore, however pressing his necessities might be, had no means at common law of raising money on his estate, but by a conditional sale; and if, by any unforeseen event, he became incapable of performing the condition strictly, or at least in effect, at the time appointed, his property in the land was gone from him, and absolutely vested in the purchaser, without any possibility, at law, of recovering it. The consequence of which was, that an estate of great value might be forfeited for a trifling consideration. But when the stern and rigid severities of that tenure yielded to the importunities of a more refined age, and the benefits of commerce were found to keep pace with the extension of a free alienation, the courts of equity moulded contracts respecting real property into the shape most convenient for the purposes of society. In adjusting the various rules respecting it, many contests arose between the courts of law and equity; the former ever displaying a strong inclination to adhere to the old rigid maxims introduced for the purpose of preserving real property unalien • Cro. Car. 191; Hard. 465, 469; and see Co. Lit. 203, b. n. (96). |