And it seems, from the determination in the case of MORTGAGE. Tasburgh and McNamara v. Sir Robert Echlin, that such a contract respecting lands, limiting the payment of the money advanced and interest thereupon to a particular period, would be considered in the nature of a conditional purchase, and no redemption allowed thereof, after the time stipulated P.

But in all these cases, where the equity of redemption is rebutted by agreements of this kind, and the transaction is considered as a conditional purchase; the intention of the parties, at the time of contracting, must, it should seem, be either clearly proved or necessarily implied, from the circumstance attending it, otherwise the general rule will not be departed from1.

IN

IIL OF THE ESTATES AND INTERESTS OF THE MORT-
GAGOR AND MORTGAGEES RESPECTIVELY
THING MOST MORTGAGED.

of the mort

gagor.

1. Of the Estate and Interest of the Mortgagor.. "As soon as the estate of the mortgagee is created, he The estate, &c! may immediately enter upon the lands, but subject to be dispossessed upon performance of the condition, by payment of the mortgage-money at the day limited. The usual way, therefore, is to agree that the mortgagor shall hold the land till the day appointed for payment, and that the mortgagee shall not intermeddle with the possession until default made; when, in case of failure, by which the estate becomes absolute, the mortgagee may enter upon it, and take possession, without any possibility at law of being afterwards evicted by the mortgagor." Some doubts have, however, been entertained with respect as to what estate the mortgagor has in the land from the time. of executing the mortgage, under such an agreement that the mortgagee shall not intermeddle with the possession 91 Pow. Mortg. 183.

P Tasburgh v. Echlin et al. 4 Bro. Par. Cas. 142; and see 1 Pow. Mortg. 173, S. C.

r

2 Blac. Com. 158.

MORTGAGE. until default of payment; whether he be lessee for so many years, or only in as tenant at will, or by sufferance'. And in the case of Powseley v. Blackman', it was held, that he was tenant at will; a distinction being there taken between this agreement, and an agreement that he should enjoy it until default; for the latter would have amounted to a lease for years; but it is observable that, though primâ facie, there is a resemblance between the estate of a mortgagor left in possession of the premises under such an agreement or otherwise, and a tenancy at will, yet upon a minute and accurate inspection, a clear distinction will be found to subsist between these interests; and also between the case of a mortgagor in actual possession, and one who under-lets to tenants: for by the agreement understood between the mortgagor and mortgagee, the latter stipulates to receive interest, the former to keep possession; but no rent is reserved from the mortgagor, nor is he entitled to notice to quit; he hath not even a right to the emblements, each of which are properties appertaining to a tenancy at will in the strict sense of the word: and the reason is, because, in this case, the crop, as well as the land, is a security for the debt. But, in both cases, even the similitude ceases, if there be an undertenant; for there can be no such thing as an under-tenant to a tenant at will; such demise being in itself a desertion, which, in law, amounts to a determination of the will*. In these cases, therefore, it seems, the mortgagee may, after default, consider the mortgagor as a disseisor, and his lessee as a wrong-doer or not, at his election. If the mortgagee permits the lessor to enjoy his lease, the mortgagor may, from thenceforth, be considered as a receiver of the rent, or, in some sort, a trustee for the mortgagee, who may, at any time, countermand the im

plied authority, by giving notice to the tenant not to pay MORTGAGE. the rent to the mortgagor any longer. But if he elect the other alternative, the lessee may be turned out by an ejectment, he being in under a person who had no power to under-let, but subject to eviction by the mortgagee".

But if the mortgagee assign, without the mortgagor, a term mortgaged to him, the mortgagor's estate will no longer bear any similarity to an estate at will, but he will be considered as tenant at sufferance only.

And if a mortgagor commit waste, where there is only a mortgage for a term of years, the court, on a bill by the mortgagee, will grant an injunction; for they will not suffer the mortgagor to prejudice the incumbrance.

And so neither can the mortgagor, as being considered as tenant at will only to the mortgagee, by any act defeat the interest of the mortgagee, otherwise than by payment of the mortgage-money; a mortgagor in possession cannot, therefore, bar the mortgagee by a fine and nonclaim; for, although the mortgagee be in reality out of possession, yet, where that is done by the consent of both parties, and the nature of the contract requires that it should be so while the interest is paid, it would be against the original design of the contract, that any act of the mortgagor, except the payment of the money and interest, should deprive the mortgagee of his security.

But though a mortgagor is but tenant at will, yet his possession before eviction by the mortgagee, gains a settlement, because the mortgagee, notwithstanding the form, has but a chattel, the mortgage being only a pledge to him for security of his money; and the original ownership of

MORTGAGE. the land still resides in the mortgagor, subject only to the legal title of the mortgagee, so far as such title is requisite to the end of his security; but otherwise, it seems, of permissive possession for a particular purpose, (as overlooking repairs, or the like) after eviction by the mortgageef.

The interest of

This slender estate of the mortgagor, however, lasts no longer than till performance of the condition, by payment of the mortgage-money; for by the 7 Geo. 2, c. 20, it is provided, that after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee shall maintain no ejectment, but may be compelled to re-assign his securities, and deliver all deeds, evidences, and writings in his custody, respecting the mortgaged premises, to the mortgagor.

And by the 7 W. & M. c. 25, it is enacted, that the mortgagor shall and may vote in election of members to serve in parliament, notwithstanding such mortgage, unless the mortgagee be in actual possession, or receipt of the rents and profits, of the mortgaged estate.

2. Of the Estate and Interest of the Mortgagee, before breach of the Condition by the Mortgagor.

To form an accurate idea of the nature of the interest of the mortgagee. the mortgagee in the mortgaged estate, it must be con

sidered, first, as it stands at the instant of executing the mortgage, and before forfeiture, while possession is (as is usually the case) in the mortgagor; secondly, after the mortgage is forfeited by failure of payment of the money at the day, and before the mortgagee enters into possession; thirdly, after the mortgagee has entered into possession on the mortgagor being evicted; and, lastly, on foreclosure.

The estate of the mortgagee, until forfeiture, still continues as it was at common law, before the interference of

e

Doug. Rep. 610.

f See Rex v. Catherington, 3 Durnf. & E. 771.

courts of equity: he is entitled to an estate as tenant in MORTGAge. mortgage in fee, or for term of years, subject to any agreement made between him and the mortgagor relative to the possession, and defeasible at law by the performance of the condition. As soon as the estate is created, he may enter into possession; but as the payment of the interest is the principal object of the mortgagee, he seldom avails himself of that right, unless obliged so to do to secure payment of the interest, or with a view to compel the re-payment of the principal. Whence it follows, (as was observed in a preceding chapters, that all leases or other interests in the land, made or conveyed by the mortgagor subsequent to the mortgage, though, before forfeiture, are void against the mortgagee; as to whom, the tenants under such leases, or persons claiming such interests, may be considered as trespassers, disseisors, and wrong-doers. And on the same principle, the mortgagee (since thestatute 4 Anne, c. 16, which dispenses with the necessity of attornment of tenants) becomes, on notice, entitled to the rent of the premises mortgaged (if let), from the time of executing the conveyance; for the rents and profits are liable to the debt, as well as the premises themselves 1.

It has been a great question, whether the interest of a mortgagee is such as to make him liable (where he is mortgagee of a term) to perform the rents and covenants. in the lease of the mortgagor. And in the case of Sparkes v. Smith, the court refused, on bill, to compel an assignee of a term on mortgage to discover his assignment; the object of the lessor in requiring it, being to make him liable to the covenants of the mortgagor, although he had not taken actual possession of the premises; and observed, that although it was the mortgagee's folly to take

8 Vol. 2, ch. 11, s. 3. h Keech v. Hall, Dougl. Rep. 21.

i Moss v. Gallimore et al. Doug. Rep. 266.

* Sparkes v. Smith, et al. 2 Vern. 275.