Case of property being given to a husband and wife. alienation, was the first to be established.1 Subse- Finally, we have to remark that if an estate is given to a man and a woman before marriage, and afterwards they marry, they will take as joint-tenants.9 But if an estate be given to a husband and wife, the case is different. For now the law considers them as but one person; they take, therefore, "by entire ties," and neither can sever his, or her, share as joint-tenants can. Whatever the nature of the property may be, the husband is entitled to the rents and profits of it during his lifetime, and to the estate itself if he sur 1 Fettiplace v. Gorges, 8 Bro. C. C. 7. 2 Stead v. Nelson, 2 Beav. 245; Major v. Lansley, 2 Russ. & My. 355. 3 Taylor v. Meads, 13 W. R. 394. 4 Sturgis v. Corp, 13 Ves. 190. 5 Taylor v. Meads, 13 W. R. 394. 6 See notes to Hulme v. Tenant, 1 L. C. 481. 7 Ex parte Holland, L. R. 9 Ch. 307. 8 33 & 34 Vict. c. 93, §§ 13, 14. 9 Co. Litt. 187 b. 1 vives his wife. He can also, if the property is leasehold, make a valid assignment of it during his lifetime, which will be good against his wife if she survive him. But he cannot dispose of leaseholds by will; neither can he alienate freeholds or copyholds by any means, except with his wife's concurrence. Hence all estates in land given in the way we have supposed, and not disposed of by the husband and wife during their joint lives, will, subject to the husband's right to alienate such of it as is leasehold during his lifetime, belong ultimately to the husband or the wife, according as the one or the other may happen to be the survivor. 1 Grute v. Locroft, Cro. Eliz. 287. a mortgage. CHAPTER XIII. OF AN EQUITY OF REDEMPTION. Equity of HITHERTO We have been occupied solely with the Redemption the result of consideration of legal estates in land, and it is to them that our attention will be principally confined all through this work. But there is one variety of equitable estates, a notice of which comes fairly within the scope of our reading. This arises when land is pledged, or "mortgaged," to a lender or "mortgagee," as a security for money advanced by him. Here the borrower or "mortgagor " has still an estate or interest left in the land, and it is of this that we now propose to treat. Former law of redemption. The word "mortgage" (a dead pledge) is significant of a state of the law which has long passed away. A mortgage, in olden times, was effected by the use of two contemporaneous deeds, of which one set forth that the estate in question had been conveyed absolutely to the mortgagee, whilst the other, known as "the deed of defeasance," provided that it should be reconveyed to the mortgagor if he, on a specified day, repaid all sums for which the estate was a security. Failing this payment, on the precise day, the estate became the absolute property of the mortgagee. Thus, Littleton, writing in the reign of Edward the Fourth, says: If a feoffment be made upon such condition, that if the feoffor pay to the 1 Litt. Ten. § 332. feoffee at a certain day £40 of money, then the feoffor may re-enter: if he doth not pay, then the land which is in pledge upon condition for the payment of the money is taken away from him for ever, and so dead to him upon condition. In time, however, the Court of Chancery began to Origin of an consider this condition merely as a penalty imposed Redemption. Equity of in order to secure punctual payment of the debt due from the mortgagor, and gave him, therefore, a right (subject to conditions to be presently noticed) to recover his estate, long after the time when a court of law looked upon it as the absolute property of the mortgagee. This right, from the fact of its being enforcible only in equity, came to be known as the mortgagor's Equity of Redemption, and is now inseparable from every mortgage. And it may be here mentioned that one result of this doctrine of equity is that (the former reasons for having two deeds no longer existing) the absolute conveyance of the estate to the mortgagee and a clause corresponding to the old deed of defeasance are now contained in the same instrument. It follows, from what has been said above, that an Creation of equity of redemption arises by operation of equity, Redemption. an Equity of without any act of parties. We will proceed to notice the principal points relating to it, premising that we shall treat only of that equity which arises in consequence of the pledge of one, or other, of those estates in land which have been considered in previous chapters of this work. At first, also, we will deal only with a mortgage of the legal interest in such property. An equity of redemption is more than a mere right. Equity of Lord Hale defined it as an estate in equity, recognized redemption land. is an estate in by the law as an equitable right inherent in the land, and of such consideration in the eye of the law, that the law takes notice of it, and makes it assignable and devisable.1 This statement has been confirmed by other judges. Thus, in an early case,2 A, an unmarried woman, being seised in fee-simple of a freehold estate, mortgaged it, and afterwards married B, by whom she had issue: A died, leaving the mortgage unredeemed, and the question arose whether B was entitled, subject to the mortgage, to an estate by cur.tesy in the land. On behalf of the heir of A, it was argued that the equity of redemption was not an actual estate or interest in A, but only a power to reduce the estate into possession again on paying off the mortgage, and that a man cannot have an estate by curtesy in a bare right. This view was acquiesced in by the Master of the Rolls (Sir J. Jekyll) but his decision was reversed, on appeal, by Lord Chancellor Hardwicke. The latter judge said that an equity of redemption had always been considered as an estate in land, and, therefore, the person entitled to the equity of redemption as the owner of the land, and a mortgage in fee as personal assets. He added that, with regard to that seisin in fact which is essential to entitle a husband to curtesy, there was, here, such a seisin in possession of the equitable estate of the wife as, in a court of equity, is considered equivalent to an actual seisin of a freehold estate at common law. Incidents and alienation of equity of The result of the owner of the equity of redemption being considered as the owner of the land is that, redemption subject to the rights of the mortgagee, he may deal with it as if it were a legal estate. Thus, an equity similar to those of a legal estate. 1 Pawlett v. Atty.-Genl., Hardres, 465, 469. 2 Casborne v. Scarfe, 1 Atk. 603, and, with notes, 2 L. C. 1035. 8 See Thornborough v. Baker, 3 Swan. 628, and, with notes, 2 L. C. |