10 H. 7. 11. 13 Η. 7. 23. Lib. 6. 41 b. in

upon condition that they shall not alien, to some intent this is good, and to some intent it is void; for to restrai an alienation by feoffment, or alienation by deed, it is good, because such an alienation is tortious and voidable; but may's case, ubi supra. (Hob. 261.

Sir Anthony Mild

to restrain *their alienation by fine is repugnant and void, Abr. 421.) because it is lawful and unavoidable.

It is said, that if a man infeoff an infantin fee, upon condition that he shall not alien, this is good to restrain alienations during his minority, but not after his full age.

(32)*

1 Rol.

It is likewise said, that a man by license may give Doct. & Stud. 124. land to a bishop and his successors, or to an abbot and his successors, and add a condition to it, that they shall not, without the consent of their chapter or convent, alien, because it was intended a mortmain, that is, that it shall for ever continue in that see or house, for that they had it en auter droit, for religious and good uses.

Put the case, that a man make a gift in tail to A., Ongift in tail with rethe remainder to him and to his heirs, upon condition mainder in fee, condition not to alien, good that he shall not alien; as to the state tail the condition as to the intail only. is good, for such alienation is prohibited, as hath been (Post, 298. 333. 338.) Rol. Abr. 407. 472, said, by the said statute. But as to the fee-simple, some 474. Cro. Eliz. 360.)

11 H. 7. 6. 13 H. 7.

say, it is repugnant and void, for the reason that Little- 23. 24. Dyer. 2 & 3 ton hath yielded: and therefore some are of opinion, Phil. & Mar. 127 b. that this is a good condition, and shall defeat the aliena

tion for the estate tail only, and leave the fee-simple in the alienee, for that the condition did in law extend only to the state tail, and not to the remainder.

Condition to re-enter

ALSO, a man may give lands in tail upon such LITTLETON. condition, that if the tenant in tail or his heirs alien [Sect. 364.224b.] in fee, or in tail, or for term of another man's life, on discontinuance of &c. and also, that if all the issue coming of the tenant intail and death of isin tail be dead without issue, that then it shall be lawful for the donor and for his heirs to enter, &c. And by this way the right (40) of the tail may be saved,

(40) de-en in L. and M. and Roh.

sue, good.

(33)*

224. b

16. 84.)

(Dyer, 343 b.)

(41) after discontinuance, to the issue in tail, if there be any (42); so as by way of entry of the donor or of his heirs, the tail shall not be defeated by such condition. (43) Quære hoc. And yet if the tenant in tail in this case, or his heirs, make any discontinuance, he in the reversion or *his heirs, after that the tail is determined for default of issue, &c. may enter into the land by force of the same condition, and shall not be compelled (44) to sue a writ of formedon in the reverter.

Note, Littleton purposely made parcel of the condition 21 H. 7. 11. (1 Rep. in the copulative, that the tenant in tail should alien, &c. For if a gift in tail be made to a man and to the heirs of his body, and if he die without heirs of his body, that then the donor and his heirs shall re-enter, this is a void condition; for, when the issues fail, the estate determineth by the express limitation, and consequently the adding of the condition to defeat that which is determined by the limitation of the estate, is void (x), and in that case the wife of the donee shall he endowed, &c. And therefore Littleton, to make the condition good, added an alienation, which amounted to a wrong, and he restrained not the alienation only, (for then presently upon the alienation the donor, &c. might re-enter and defeat the estate tail) *but added, and die without issue; to the end, that the right of the estate in tail might be preserved, and not defeated by the condition, but might be recovered again by the issue in tail in a formedon.

*225 a.

(Mo. 89.)

And Littleton expressly saith, that the donor and his heirs, after the discontinuance, and after that the estate

(41) tiel added ir L. and M. and

Roh.

(42) issue added in L. and M. and Roh.

(43) quære hoc, not in L. and M. nor Roh.

(44) cohert-arte in L. and M. and Roh.

(X) Vid. Cro. Jac. 415. 448. 695. 3 Co. 19. [Poll. 479. Sir T. Jo. 79.] 3 Mod. 210. Ld. Raym. 101. 204. 2 Vern. 323. 1 Burr. 228. 2 P. Wms. 170.605. Fearne. Cont. Rem. 168. Cowp. 234.410.833. Dougl. 266. 3 T. R. 484. 488.-[Ed.]

tail is determined, may re-enter, which is the intention and true meaning of Littleton in this place. And where it is said in this section (quære hoc) this is added by some that understood not this case, and is not in the original (Y).

LITTLETΟΝ.

ITEM, if (45) a feoffment be made (46) upon such condition, that if the feoffor pay to the feoffee [Sect. 332.205 a.]

3. Mortgage (34)*

at a certain day, &c. 40 pounds of money, that then the feoffor may re-enter, &c. in this case the feoffee is called tenant in mortgage, which is as much to say, in French, as mortgage, and in Latin mortuum vadi- Origin of the term. um. (1) And it seemeth, that the cause why it is called mortgage is, for that it is doubtful whether the feoffor (47) will pay at the day limited such sum or not: and if he doth not pay, then the land which is put in pledge upon condition for the payment of the money, is taken from him for ever, and so dead (48) to him upon condition, &c. And if he doth pay the money, then the pledge is dead to the tenant, &c.

205 a.

"Mortgage" is derived (s) of two French words, The different kinds of viz. mort, that is, mortuum, and gage, that is vadium, mortgage. or pignus. And it is called in Latin mortuum vadium, (s) Glanvil. lib. 10. cap. 68. & lib. 13. or morgagium. Now it is called here mortgage, or сар. 26. 27. mortuum vadium, both for the reason here expressed by Littleton, as also to distinguish it from that which is called vivum vadium. Vivum autem dicitur vadi

(45) ascun added in Roh, but not in L. and M.

(46) a ascun home added in Roh. but not in L. and M.

(47) voyt-poet, in L. and M. and

Roh.

(48) a luy sur condition, &c. Ει s'il paya le money dont est le gage mort, not in L. and M. nor Roh.

(1) See Mr. Butler's note at the end of the volume. Note 5.

(Y) It is a rule of law, that a condition must defeat or determine the whole of the estate to which it is annexed, and not determine it in part only and leave it good for the residue. And therefore it has been adjudged, that a condition to determine an estate tail, as if the tenant in tail were dead, was void; because the death of a tenant in tail did not determine the estate tail, but his death without issue. Jermin v. Arscott, 1 Co. 85 a. Corbet's case, 1 Co. 83 b. Sir Anthony Mildmay's case, 6 Co. 40. Cro. Eliz. 379. Moor. 592. And. 346.- [Ed.]

(t) Vid. sect. 327.

um, quia nunquam moritur ex aliquâ parte quòd ex suis proventubus acquiratur. As if a man borrow a hundred pounds of another, and maketh an estate of lands unto him, until he hath received the said sum of the issues and the profits of the land, so as in this case neither moneydieth, norland or is lost, (whereof Littleton speaketh in this chapter (t), and therefore it is called vivum vadium(z).

(Z) The subject of mortgages may be considered under three general heads:-1st. Of the origin and different kinds of mortgages. 2d. Of the several interests of the mortgagor and mortgagee. 3d. Of the equity of redemption.

1st. As to the origin and different kinds of mortgages:--The notion of mortgaging and redemption seems to have been derived to us from the civil law. According to that law, the difference between pledges and things hypothecated was this: 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 was obliged for money lent, and the possession remained with the debtor. If the debtor 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 the pledge 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 herein the creditor had not the possession of the pledge, but it remained to the debtor. Until 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. Digest, lib. 20. tit. 6. Corvin, 269, 270, 271. 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. This seems to have introduced the notion among us of the debtor's right 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 himself for forty years. Digest, lib. 20. tit. 6. The word "mortgage" signifies commonly the same thing as the word "pawn;" that is, the appropriation of the thing given for the security of an engagement: and these two words are used indifferently in the same sense. But the word " pawn" is more properly applied to moveable things, which are put into the hands and keeping of the creditor; and the word "mortgage" signifies properly the right acquired by the creditor upon the immoveables which are appropriated to him by his debtor, although he be not put into possession of them. Domat. lib. 3. tit. 1. sect. 1. Another difference between a mortgage and a pledge is, that the former is an absolute pledge to become an absolute interest, if not redeemed at a certain time; but the latter is a deposit of personal effects, not to be taken back but on payment of a certain sum, by express stipulation, or the course of trade, to be a lien upon them. 2 Ves. jun. 378. It was a rule of the feudal law, which prohibited all alienations, that feudalia, invito domino, aut agnatis, non recte subjiciuntur hypo

*ALSO, as a man may make a feoffment in fee in LITTLETΟΝ. mortgage, (49) so a man may make a gift in tail in [Sect. 333.205 b.]

(49) issint home poit faire done en taile en mortgage, not in L. and M.

nor Roh

(35)*

theca, quamvis fructus posse esse, receptum est, Corvin. Dig. 268; but at the time of Henry the second, when the alienation of property had become free, fwo modes of mortgaging lands were in use, which were dis tinguished by the names of vadium vivum and vadium mortuum Glanv. lib. 10. c. 8. The former kind is here described by Lord Coke, and is also mentioned by Littleton, sect. 327. post, the latter, which is the ordinary and usual way of mortgaging lands, has been already explained, Mortgages may be, 1st. either of the freehold and inheritance; or, 2d. of terms for years. The ancient way of making mortgages of the freehold and inheritance, was by a charter of feoffment, on condition, that if the feoffor or his heirs paid the sum borrowed to the feoffee, or his heirs, at a day appointed, he should re-enter and repossess; and sometimes the condition was contained in the charter of feoffment, and sometimes it was defeasanced by a distinct instrument, bearing date, and executed at the same time. Madex, 318,319. These sorts of conveyances were at first found to be attended with great inconveniences; as if the money was not paid at the day, so that the condition was forfeited, and the estate became absolute, the estate was thenceforth subject at common law to the dower of the wife of the feoffee, and to all his other real charges and incumbrances; for though if the feoffor performed the condition, then he might re-enter, and repossess himself in his former estate, and consequently was in, above all charges and incumbrances of the feoffee; yet if he did not literally perform the condition by payment of the money at the day, then the estate became legally subject to the charges and incumbrances of the feoffee, though the money should be afterwards paid, and the estate reconveyed to the feoffor. Post, fol. 221, 222. Hardr. 463, Cro. Car. 191. 1 Eq. Abr. 311. 5 Bac. Abr. 4. 1 Bl. Rep. 156. To avoid these inconveniences the second sort of mortgages were adopted, and it became usual to grant only a long term of years by way of mortgage, with condition to be void, upon repayment of the purchase-money; which course is now frequently used, principally, because, on the death of the mortgagee, such term becomes vested in his personal representatives, who now are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be. 2 Bl. Com. 158. But courts of equity, after their ju jurisdiction became firmly established, 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 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 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. Cro. Car. 191. Hardr. 465. 469. 5 Bac. Abr. 4. And since this right or power of redemption has been so understood, mortgages in fee have again become usual; for, although mortgages for terms of years were free from the inconveniences attending mortgages in fee, with respect to tenant by dower, curtesy, &c. yet they were not without objection, as in case of foreclos ure on nonpayment, the mortgagee became only a termor, the fee-simple remaining in the mortgagor.

Great inconveniences having been suffered by mortgagees, from the difficulty and delay attending bills to foreclose, the ingenuity of modern times has framed a mode of conveyance in order to enable the mortgagee, after a given time, to procure his principal and interest by a sale of the VOL. II.

F