[the condition is void, and the estate is at once made absolute in the feoffee (d). But if the condition be precedent, or to be performed before the estate vests, as a grant to a man that if he kills another or goes to Rome in an hour, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant. For he hath no estate until the condition be performed (e).] `

The operation of a condition reserved in any lease. may be suspended, either by an express licence from the person entitled to the benefit of it, or by a mere waiver, that is, by a deliberate omission to take advantage of a breach which has already occurred (f). Formerly the rule of law was, that a licence to commit a single breach, or the waiver of a right to enter upon such a breach, destroyed the whole, condition. But now, by the operation of The Law of Property Amendment Act, 1859 (g), the effect of a licence is confined to the particular breach to which it is directed; and a similar effect is given to a waiver by The Law of Property Amendment Act, 1860 (h). With regard to relief against forfeitures actually incurred, something will be said hereafter (i).

There are some estates upon condition subsequent that require a more particular notice, namely, mortgage estates, and estates by elegit. And, first, as to mortgage estates.

The modern form of mortgage is an absolute conveyance by the borrower (the mortgagor) to the lender (the mortgagee) of his (the mortgagor's) interest in the land, accompanied by a proviso that, upon repayment of the mortgage-money and interest, the mortgagee will

(d) Litt. s. 360; Co. Litt. 206 a; Rosher v. Rosher, (1884) 26 Ch. D. 801.

(e) Co. Litt. 206 b; Shrewsbury v. Scott, (1859) 6 C. B. (N.S.) 179.

(f) Co. Litt. 211 b.

(g) Ss. 1, 2. (h) S. 6.

(i) Post, bk. ii., pt. i., ch. xxiv.

reconvey the property. Thus, as will be seen, it does not, strictly, create an estate upon condition. But, inasmuch as equity has long considered the property, in such a case, as held by the mortgagee simply as security for the repayment of money, the position is (with certain important exceptions) much the same as that created by the older form of mortgage by feoffment upon condition subsequent.

So soon as the estate in mortgage is created, the mortgagee may (in the absence of any stipulation to the contrary) enter on the lands, being, however, bound to restore them upon payment of the mortgage money. And, therefore, it is usual to insert in the mortgage deed a proviso, that the mortgagor shall hold the land till default on the day assigned for payment, on which default happening, the mortgagee is entitled to enter and take possession. Nor did the principles of the common law admit of his being afterwards evicted by the mortgagor (k). On this entry by the mortgagee, if there is a tenant in occupation, under a lease prior to the mortgage, his occupation cannot of course be disturbed; but he must pay over his rents to the mortgagee. But if there be a tenant in possession under a lease granted by the mortgagor subsequently to the mortgage, and without the privity of the mortgagee, he may be ejected without notice; unless indeed such subsequent lease was made under and in conformity with the Conveyancing Act, 1881 (), which, for the first time, made the leases of the mortgagor valid against the mortgagee.

But though a mortgage be thus forfeited on such default, and the estate thereupon absolutely vested at law in the mortgagee, yet in equity the mortgagor will be allowed to recall, i.e., redeem, his estate, on paying to the mortgagee his principal, interest, and expenses. For

(k) Doe v. Maisey, (1828) 8 B. & C. 767.

(4) S. 18. (It should be noticed,

however, that the provisions of this section may be excluded by agreement of the parties.)

otherwise, an estate worth 1,000l. might, in strictness of law, be forfeited for non-payment of 1001. or a less sum. Six months' notice must, in general, be given of the mortgagor's intention to redeem, or six months' interest must, in general, be paid in lieu of giving such notice (m).

The estate of the mortgagor, after default, is, therefore, called his equity of redemption; and, while his equity of redemption continues, the mortgagor is regarded in equity as the owner of the estate, subject only to the mortgage debt (n). So strictly was this view held that, until recently, the person to whom the estate descended or was devised by the mortgagor was entitled to have the debt paid out of the mortgagor's general personal estate. But now, by the Real Estate Charges Acts of 1854, 1867, and 1877, this rule has been abolished; and, on the death of the mortgagor, the mortgaged estate comes to his devisee (or heir) encumbered with the debt.

Conversely, the interest of the mortgagee is regarded in equity, not as an estate in land, but as a security for the payment of money. On his death, therefore, it ranks as personalty, and is available for the payment of legacies, or, in the event of intestacy, is distributed for the benefit of his next-of-kin. And it would seem that, even where there is a specific devise of the mortgaged property, the benefit of the mortgage money will not necessarily pass under it (o).

The mortgagor desiring to discharge the mortgage debt may take proceedings "to redeem " in the Chancery Division; and, if the mortgagee be not in possession, this proceeding merely calls upon the mortgagee to reconvey, on payment of principal, interest, and costs. But, if the mortgagee has obtained possession, it asks that an account

(m) Smith v. Smith, [1891] 3 Ch. 550.

(n) Casborne v. Scarfe, (1737) 1 Atk. 603 (2 White & Tudor, 6).

S.C.-VOL. I.

(0) In re Clowes, [1893] 1 Ch. 214; but see In re Carter, [1900] 1 Ch. 801.

N

may be taken of all the rents and profits on the one hand, and of the principal, interest, and costs on the other, and a balance struck between them; and that, on payment of what may appear due to the mortgagee on such account, a reconveyance may be made, and the possession of the premises restored. If the original mortgagee be dead, the proper persons to reconvey, even in the case of a mortgagee in fee, are the personal representatives of the mortgagee. This rule was introduced (to avoid the difficulty of getting the heirs to concur in a reconveyance which brought them no benefit) by the Vendor and Purchaser Act, 1874; and it has been confirmed and extended by the Conveyancing Act, 1881 (p), and the Land Transfer Act, 1897 (q). It does not, however, apply to mortgages of copyholds, when the mortgagee has been admitted as tenant of the lord (1).

On his part also, the mortgagee, where his debt remains unpaid after the time agreed on, may take proceedings "for foreclosure," calling upon the mortgagor to redeem his estate presently, or in default thereof to be for ever foreclosed from redeeming the same, that is, to lose his equity of redemption without possibility of recall. In such proceedings, however, as well as in any action for redemption, the Court may, if it thinks fit, on the application of any person interested, direct a sale of the property (s). The mortgagee may, instead of bringing a foreclosure action, sell the estate in satisfaction of his debt, (paying over the surplus proceeds, if any, to the mortgagor,) even without resorting to proceedings in equity, and without any concurrence on the part of the mortgagor. Formerly the power of sale was expressly conferred by the mortgage itself; but now, in the case of mortgages by deed, the mortgagee has in every case, and independently of express provision, a statutory power of sale. This was conferred by the Conveyancing (s) Conveyancing Act, 1881,

(p) S. 30. (q) S. 1.

(r) Copyhold Act, 1894, s. 88.

s. 25.

Act, 1881 (ss. 19-21), which Act confers also other powers on mortgagees, such as, to insure, and to appoint a receiver who shall receive the rents and profits as agent of the mortgagor (t).

By an important provision of the Judicature Act, 1873 (u), a mortgagor entitled for the time being to the possession of land, as to which no notice of his intention to take possession thereof has been given by the mortgagee, may, in general, sue for such possession, or for the recovery of the rents or profits, or to prevent (or recover damages in respect of) any trespass or other wrong relative thereto, in his own. name only, and without adding the mortgagee as a co-plaintiff with

himself.

[Second, as to estates by elegit. Elegit is the name of a writ, founded on the statute of Westminster the Second (x), by which, after judgment in an action has been obtained, the sheriff gives the judgment creditor possession of the lands and tenements of the defendant, to be occupied and enjoyed by the plaintiff (as judgment creditor) until the money due on the judgment is fully paid; and, during the time the judgment creditor so holds the lands, he is called tenant by elegit, his estate being a mere conditional estate, defeasible as soon as the judgment debt is levied.] Of the proceedings under a writ of elegit, more will, hereafter, be said. Here it is sufficient to note that the tenant by elegit, though holding ut liberum tenementum by the old law, was never deemed to have more than a chattel interest in the land.

() 44 & 45 Vict. c. 41, ss. 19-24. (See post, bk. ii., pt. i., ch. xxiv.)

(u) 36 & 37 Vict. c. 66, s. 25 (5). (x) 13 Ed. 1, (1285) c. 18.