further advances, if they were agreed upon at the time when the deeds were deposited.1 It is not necessary that all the title-deeds relating Not necessary to the mortgaged estate should have been deposited. the deeds. to deposit all For it has been held that the mere deposit of a copy of court roll,2 or of so many of the title-deeds of freeholds as form material evidence of title,3 makes a good equitable mortgage, even though the deeds do not show that the depositor has any interest in the property.* An equitable mortgagee, being a person entitled, Equitable by virtue of his contract, to call for the legal estate titled to legal in the mortgaged property, may compel the mort- mortgage. gagor to execute a formal mortgage of it to him, and it is immaterial for that purpose that the deposit was unaccompanied by any written memorandum. Should the mortgagee do this, he becomes an ordinary legal mortgagee, with all the rights and liabilities attendant on that position. mortgagee foreclosure. Or he may, without having obtained the legal es- Equitable tate in the mortgaged property, take proceedings in may obain a equity to realize his security. If the deposit was decree for accompanied by a written agreement to execute a legal mortgage, there can be no doubt that the mortgagee's primary remedy, in default of payment by the mortgagor, is to obtain foreclosure of the latter's equity of redemption;5 since a right to a sale belongs, strictly, to those persons only who have a mere 1 Ex parte Kensington, 2 Ves. & B. 79; Ex parte Whitbread, 1 Ves. 209; Ede v. Knowles, 2 Yo. & C. 172; and see National Bank of Australasia v. Cherry, L. R. 3 P. C. 299. 2 Whitbread v. Jordan, 1 Yo. & C. (Ex.) 303. 3 Lacon v. Allen, 3 Drew. 579. 4 Roberts v. Croft, 2 De G. & J. 1. 5 Perry v. Keane, Coote on Mortgages, 582. Interest Equitable mortgagee may be postponed. equitable charge on the property,1 unaccompanied by And it is now any estate in it, legal or equitable. The position of an equitable mortgagee is not very secure, until he has obtained the legal estate in the property pledged to him; since, until then, he is liable to be postponed to a person who has bona fide taken a legal conveyance of the same estate for valuable consideration. But this must have been done without notice of the equitable mortgage, and, since the deeds of an estate should, as a rule, go with its legal possession, neglect on the part of a purchaser to inquire after the purchase deeds will cause him to be postponed to an equitable mortgagee, even though he 1 Tipping v. Power, 1 Ha. 405, 410; Footner v. Sturgis, 5 De G. & Sm. 736. 2 Kennard v. Futvoye, 2 Giff. 81, 89. 3 James v. James, L. R. 16 Eq. 153. 4 Tuckley v. Thompson, 1 J. & H. 126; and see Matthews v. Gooday, 10 W. R. 1060. 5 See as to time for redemption by the mortgagor, Parker v. Housefield, 2 My. & K. 419. • Seton, 444. 7 Lechmere v. Clamp, 30 Beav. 218. 8 Re Kerr's Policy, L. R. 8 Eq. 331; and see Carey v. Doyne, 5 Ir. Ch. Rep. 104. had been unaware of the latter's existence.1 The result will be the same if he has inquired after the deeds, and been satisfied with an answer which ought to have put him on further inquiry.2 But the fact of his not having got in the title-deeds will not postpone him, if he has made proper inquiries for them, and a reasonable excuse has been given for their nondelivery. And on similar principles a mortgagee, whether legal or equitable, who, without reasonable excuse, neglects to get in the title-deeds of the property comprised in his mortgage, or who, having got them, improperly parts with them, will be postponed to subsequent mortgagees who have bona fide advanced their money without notice of his mortgage. It may be added, in conclusion, that an equitable mortgagee will lose his rights against the mortgagor, if he voluntarily parts with the deposited title-deeds, although he will not be held liable for their accidental loss.8 6 1 Worthington v. Morgan, 16 Sim. 547; Hunter v. Walters, L. R. 7 Ch. 75. 2 Maxfield v. Burton, L. R. 17 Eq. 15. Dixon v. Muckleston, 3 Hewitt v. Loosemore, 9 Ha. 449, 458; L. R. & Ch. 155; and see Colyer v. Finch, 19 Beav. 500, 5 H. L. C. 901; Evans v. Bicknell, 6 Ves. 183; Martinez v. Cooper, 2 Russ. 198. 4 Hunter v. Walters, L. R. 7 Ch. 75. 5 Waldron v. Sloper, 1 Drew. 193. Layard v. Maud, L. R. 4 Eq. 397; Briggs v. Jones, L. R. 10 Eq. 92. 7 Re Driscoll, Ir. R. 1 Eq. 285. 8 Baskett v. Skeel, 11 W. R. 1019. PART II. OF CONVEYANCING. CHAPTER I. Assurances of copy holds not to be considered in this chapter. OF THE HISTORY OF CONVEYANCING. THE first part of this work having been devoted to a consideration of the various estates in land, and of the manner in which they may be held, it is proposed in this, the second part, to try and explain the way in which the simplest forms of the principal conveyancing instruments are prepared. And in order to facilitate the comprehension of this part of our studies, it will be prefaced with a brief account of the history of conveyancing; so that the reader may understand the reasons for the changes which have been made, from time to time, in the various forms of assurance which we are about to consider. We have seen how land may, with reference to its tenure, be regarded as being either freehold or copyhold. But it will be remembered that copyhold. land is still transferred by the primitive method of surrendering it to the lord of the manor, who, in his turn, re-grants it to the tenant's nominee; and, since the various points relating to the subject of surrender have been discussed in our chapter on copyholds, land of this tenure will not, except incidentally, come under our present notice. land of free divisible into freeholds in reversiors and years. As to land of freehold tenure, we saw that the es- Estates in tates held in it may be either freehold or leasehold, hold tenure the former again being divisible into those in posses- divi sion, and those in reversion or remainder, which may possession; be placed, with reference to their mode of convey- remainders; ance, in a class by themselves. We have, then, to and terms of consider the history of the assurances which relate to these divisions of freehold land. And since the principal changes introduced into conveyancing arose soon after, and in consequence of, the passing of the Statute of Uses,1 our three classes of property may, for this purpose, be conveniently treated of with reference to 1st, The manner of acquiring, and dealing with, them before the passing of the statute; 2d, The changes and modifications in conveyancing introduced after that date; and 3d, The further alterations in this respect made since the passing of the statute down to the present day. Statute of The right of alienating the various kinds of prop- Assurances erty which have been mentioned had been a thing of before the slow growth, and was subject to several restrictions, Uses. derived chiefly from the rules of feudal tenure. A consequence of this was, that the earlier forms of assurance were few in number, and comparatively simple in operation. seisin. The earliest, and most important, form of convey- Feoffment ance was a Feoffment, accompanied by Livery of with livery of Seisin. This was employed for the creation of all estates of freehold in possession, and for the transfer of such of them as were alienable; namely, estates in fee-simple, or for life. A Feoffment was a formal statement by the feoffor, or owner of the estate, that he gave if to the feoffee, and was completed by the feoffor's publicly putting the feoffee into possession of the land which he was to hold. 1 27 Hen. VIII. c. 10. |