limited them to himself for life, remainder to his wife for life, remainder to the mortgagee in fee; and although the words, "subject to the trusts of the former surrender" were added, yet the Court refused redemption, and considered the words to mean, "subject to the preceding life estates."

It scarcely need be noticed that the mortgagor cannot, under his covenant for further assurance on default in payment, be called upon to release his equity of redemption, and that he can, under such covenant, be required to confirm the mortgage only (d).

(11.) The Result of Cases.

The following conclusions may be drawn from the foregoing:1. Once a mortgage, always a mortgage.

2. A mortgage cannot be a mortgage on one side only; it must be mutual.

3. Parol evidence is admissible of the right to redeem.

4. A right of pre-emption may be given to the mortgagee; but such a right is construed strictly.

5. A conditional purchase is distinguishable from a mortgage and will be enforced.

6. Defeasible purchases differ from mortgages, and the stipulations must be strictly adhered to.

7. A purchase may be converted into a mortgage by agreement subsequent.

(d) Atkins v. Uton, 1 Ld. Raym. 36; Comb. 318.

CHAPTER IV.

NATURE OF AN EQUITY OF REDEMPTION, ITS RIGHTS AND INCIDENTS.

6. Redemption on mortgage by appointment, and other matters 7. Forfeiture and escheat.

42

43

(1.) Nature of equity of redemption.

THE right or equity of redemption being thus established, it is necessary to consider the nature of that right, against whom it lies, and its incidents or qualities.

First, then, of the nature of an equity of redemption.

It has been already shown that, by the common law, the legal ownership of the land, on the execution of the deed of mortgage, is transferred to the mortgagee, subject to be divested on performance of the condition, and that a mere right of re-entry on performance of the condition remains in the mortgagor, of which, being neither alienable nor devisable prior to the recent statutes (a), advantage might be taken only by him or his heirs. These doctrines were at first (b) attempted to be applied in equity to the right to redeem after condition broken; but the mortgagor, as in the civil law, is now held until decree of foreclosure to be the real owner of the land, and possessed of it in his ancient and original right and estate; and the mortgage is personal assets (c).

(a) See 1 Vict. c. 26, s. 3, and 8 & 9 Vict. c. 106, s. 6; by which rights of entry are made devisable and alienable by deed; inf., p. 34, (t).

(b) Roscarrick v. Barton, 1 Ch. Ca. 217; 1 Eq. Ca. Abr. 317, pl. 4.

(c) Casborne v. Scarfe, 1 Atk. 602; Francis's Max. 13.

31

The king.

Lord of manor.

No escheat

of property held upon trust or mortgage.

An equity of redemption then is, in equity, the ancient estate in the land without change of ownership. But the clause of redemption is not "a condition for the benefit of the grantor" within the Mortmain Acts (d).

(2.) On whom binding.

Questions of great nicety formerly arose in reference to the persons on whom this equity of redemption was binding, but for the most part they have now ceased to have any interest: Lord Hale described it to be not merely a trust, but a title in equity, and to be inherent in the lands, and binding on all persons, whether in the post or otherwise (e), and although on the immediate establishment of the equity of redemption, ancient prejudices so far prevailed as to lead to a decision that lands conveyed to a mortgagee in fee became subject to his legal incumbrances, and to the dower of his wife (f), and therefore, in order to prevent the latter, it was usual to convey the lands to two persons in joint tenancy, yet this misconception was soon remedied, and the rights of the parties put upon the proper footing.

Notwithstanding, however, the strong opinion entertained by Lord Hale of the binding quality of this equity, great doubts once prevailed whether the redemption of a mortgage could be had against the king (e). And it was decided (g) that a lord of a manor was not bound by the equity on an escheat, if notice of such equity did not appear on his court rolls; although in another case () it was held that he was bound by the equity, if on the rolls there was a reference to a deed giving notice of it, and that the mortgage money belonged to the personal representative of the mortgagee, and not to the lord.

No difficulty now exists, for it is enacted (i) that no lands, stock, or chose in action vested in any person upon any trust or by way of mortgage, or any profits thereof, shall escheat or be forfeited to her Majesty, her heirs or successors, or to any corporation, lord or lady of a manor, or other person, by reason of the attainder or

(d) Doe v. Hawkins, 2 Q. B. 212.

(e) Pawlett v. Att. G., Hardr. 465; 1 Eq. Ca. Abr. 315, and see Rogers v. Maule, 1 Y. & C. C. C. 4.

(f) Nash v. Preston, Cro. Car. 190; 1 Eq. Ca. Abr. 217, pl. 1; Co. Litt. 205, a, n. 1.

(g) Att. G. v. The Duke of Leeds, 2 My. & K. 343.

(h) Weaver v. Maule, 2 Russ. & M. 97; and see 3 Ha. 404-406.

(i) 13 & 14 Vict. c. 60, ss. 15 & 46; replacing 4 & 5 Wm. IV. c. 23.

conviction for any offence of such trustee or mortgagee, but shall remain in such trustee or mortgagee, or survive to his or her co-trustee, or descend or vest in his or her representative, as if no such attainder or conviction had taken place.

But nothing contained in the Act is to prevent the escheat or forfeiture of any lands or personal estate vested in any such trustee or mortgagee so far as relates to any beneficial interest therein of any such trustee or mortgagee, but such lands or personal estate, so far as relates to any such beneficial interest, shall be recoverable in the same manner as if the Act had not passed.

Where an estate has been first mortgaged for a term, and afterwards by way of equitable deposit of title deeds beyond its value, the mortgagor is not a bare trustee under the Act for the mortgagee, so as to prevent an escheat of the legal fee to the crown (k). The equity of redemption, as in the case of a mere trust, will not of course be binding on a bonâ fide purchaser for a valuable consideration, if he takes without notice.

(3.) Descent and devise.

Next as to the incidents and qualities of an equity of redemption. It has been already mentioned, that an equity of redemption is an estate in the land without change of ownership. It necessarily follows that its line of devolution must, in the course of descent, be governed as the land itself would have been, by the general law, or by the lex loci; and therefore, if the land be of gavelkind tenure, the equity of redemption will be divisible in like manner; or if the tenure be borough-English, the youngest son will be entitled, and so of the like (7); and on the like principle if (before the Wills Act (m), which makes all wills speak from the death) a devised estate was mortgaged by the testator, the mortgage, whether in fee or for a term of years, if confined to the purpose of the security, was but a revocation pro tanto (n), and if the owner of an unqualified legal fee devised it by his will, and afterwards made a mortgage with an unqualified proviso for redemption, this was no revocation of the will, because the proviso was incidental to the legal fee (o).

(k) Rogers v. Maule, 1 Y. & C. C. C. 4. (1) Fawcett v. Lowther, 2 Ves. S. 304. (m) 1 Vict. c. 26.

C.-VOL. I.

(n) Thorne v. T. 1 Vern. 182; Hall v. Dunch, ib. 392.

(0) Youde v. Jones, 9 Jur. 910, V. C. E. 13 M. & W. 534.

D

Act not to pre

vent escheat

or forfeiture of beneficial

interest.

Devise.

Entail.

A mortgage by a disentailing deed which limited the estate to the mortgagor in fee, was, until the Wills Act, a total revocation of a prior will (p). A devise of the equity of redemption itself must be also valid (4), if attended with the like technicalities as the law requires for a devise of the land. A doubt has been raised (→) whether prior to the breach of the condition, when, as has been already explained, the mortgagor has a right of re-entry only, a valid devise of the land can be made; and the ground of objection was, that the benefit of a condition was not devisable. There seems at common law to be sound reason for the objection; for a right of re-entry can scarcely be placed on the footing of a possibility accompanied with an interest, as has been attempted by a preceding writer (s), and devisable as such; but, nevertheless, if such a devise could not be maintained at law, which, it is apprehended, is the total amount of the question, it would be good in equity, whether the mortgagor should die before or after the breach of the condition. And by the Wills Act rights of entry were made devisable at law (t).

(4.) Entail, Curtesy, and Dower.

Prior to the decision that an equity of redemption was an estate in the land, and so long as the notion prevailed that it was but a right, the limitation of it by way of entail, or in strict settlement, seemed out of the question; and it was considered that such an entail, if it could subsist, would tend to a perpetuity. But when the equity was declared to be the ancient estate without change of ownership, it became, of course, subject to all the limitations to which other estates in equity were liable (u).

It has been long (x) settled that an equitable entail and remainders are barrable by such mode of assurance only as would bar a legal entail and remainders. By 3 & 4 Wm. IV. c. 74, abolishing fines and recoveries, a power of disposition has been given to tenants in tail of freehold lands by simple deed enrolled in Chancery.

(p) Power v. P. 9 Ir. Ch. Rep. 178; Sparrow v. Hardcastle, 1 Ld. Kenyon, 67, 3 Atk. 798; Harmood v. Oglander, 8 Ves. 107; Locke v. Foote, 5 Sim. 618. (9) Phillips v. Hele, 1 Rep. in Ch. 190. (*) 2 Ch. Ca. 8.

(s) See Pow. on Mtg. ed. 4, 348, which refers to Roe v. Jones, 1 H. Bl. 30. (t) 1 Vict. c. 26, s. 3. (u) Hard. 469.

(x) Kirkham v. Smith, Amb. 518 and see Legat v. Sewell, 2 Vern. 552.