vadium and THE common law recognised two kinds of landed security, viz., Vivum rirum radium and mortuum vadium. The vivum vadium and also mortuum the mortuum radium (according to Glanville), as at first known, vadium. were determinable or base fees, with a right of reverter in the feoffor and his heirs, on the payment of a given sum. The mortuum radium, or mortgage ultimately known at the common law, was an absolute fee, with a condition annexed, making void the feoffment on payment of a given sum, which the common law allowed, if reserved to the feoffor or his heirs. The difference between the estates was striking. In the first instance the creditor took an estate, which, as soon as his debt was satisfied, ipso facto ceased, and the feoffor might re-enter and maintain ejectment; in the latter instance the feoffee took the whole estate, subject to be defeated, but which, on the non-fulfilment of a certain engagement, became his own by an indefeasible title. In the first case the defeasibility was an inherent quality of the estate; in the other case the determination was collateral to it. The rirum radium consisted of a feoffment to the creditor and Vivum vadium. his heirs, until out of the rents and profits he had satisfied himself his debt; the creditor took actual possession of the estate, and received the rents, and applied them from time to time in liquidation of the debt. When it was satisfied, the debtor might, as before observed, re-enter and maintain ejectment; and it is said to 5 Compared with Welsh mortgage. Glanville. have been called vivum vadium because neither debt nor estate was lost. This mode of security was probably never general; it is ill adapted to the purpose of a pledge, whose object is the repayment of the loan in one entire sum at a given time, and not a repayment by small instalments, which in fact is eating out the debt piecemeal; and it seems now to have entirely ceased. A security in land, bearing a remote resemblance to the vivum vadium, may be considered as subsisting under the appellation of Welsh mortgage; but there is this distinction between the securities, viz., that in the vivum vadium the rents were applied in satisfaction of the principal, and in Welsh mortgages they are received in satisfaction of the interest, while the principal remains undiminished. In one respect they agree the estate is never forfeited. The Welsh mortgage seems in fact pretty closely to resemble the ancient mortuum vadium (a). (2.) Mortuum vadium. The mortuum vadium, or mortgage, is mentioned by Littleton, Coke, and others, as so called because on breach of condition the estate was rendered indefeasible in the mortgagee, and absolutely lost to the mortgagor. In this light it is placed by Lord Coke, in contradistinction to the vivum vadium, and such seems to be the opinion generally adopted. But Glanville, as has been observed (¿), gives a different meaning to the origin of the term. He says, "Mortuum vadium dicitur illud cujus fructus vel redditus interim percepti in nullo se acquierant;" and applies it to the before-mentioned species of usury at common law, viz., a feoffment to the creditor and his heirs, to be held by him until his debtor paid him a given sum, and until which he received the rents without account, so that the estate was unprofitable or dead to the mortgagor in the meantime; and the exposition given by Glanville seems the more sound, as it was rendered at a very early period of our history, while as yet the fetters on alienation were unremoved. We may therefore consider the vivum vadium to have implied a security, by which the rents of land were from time to time applied in reduction of the principal of the debt; and the mortuum vadium to (a) In a Welsh mortgage there is no contract express or implied between the parties for the repayment of the money, and the mortgagee cannot foreclose or sue for the money, though the mortgagor and his heirs may redeem at any time. Howell v. Price, Prec. Ch. 423, 477, and Longuet v. Scawen, per Lord Hardwicke, 1 Ves. S. 405. (b) Lib. 10, cap. 6. have originally implied a security, by which, until payment of a given sum, the rents of land were ad interim lost to the owner, and received by the creditor and unaccounted for, so that the debt remained undiminished, which was at common law, as before remarked, in the event of the creditor dying possessed of the pledge, punishable as usury; and it must be observed, there was the like advantage, in one respect, to the debtor in this form of mortgagė, as in the vivum radium, viz., that the estate was never lost. There is no trace of the period when this mode of mortgage fell into disuse. In its stead arose the mortuum vadium, or mortgage, afterwards so well known at common law, and thus described by Littleton (c): "Item; if a feoffment be made upon such condition, Littleton. that if the feoffor pay to the feoffee at a certain day, &c., forty 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 as to say in French, come mortgage, and in Latin, mortuum vadium. And it seemeth that the cause why it is called mortgage is, for that it is doubtful whether the feoffor 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 to him upon condition, &c.; and if he doth pay the money, then the pledge is dead as to the tenant, &c." It is somewhat singular that Littleton should not refer to the explanation of the term as rendered by Glanville; and we may conclude that the original mortuum vadium had by this time totally fallen into disuse and become obsolete. The mortgage described by Littleton was strictly an estate upon condition, that is, a feoffment of the land was made to the creditor, with a condition in the deed of feoffment or in a deed of defeazance executed at the same time (for the common law does not allow a feoffment to be defeazanced by matter subsequent), by which it was provided, that on payment by the mortgagor or feoffor of a given sum at a time and place certain, it should be lawful for him to re-enter. Immediately on the livery made, the mortgagee or feoffee became the legal owner of the land, and in him the legal estate instantly vested, subject to the condition (d). If the condition was per (c) Sec. 332. (d) In 5 Bac. Abr., Mortgage, it is stated that "the mortgagor before forfeiture, and whilst it remains uncertain whether he will perform the condition at the time limited or not, hath the legal estate in him." This is a mistake; the gagor. formed, the feoffor re-entered and was in of his old estate, paramount to all the charges and incumbrances of the feoffee, whether in the Per or in the Post (e), or in other words, above all persons, whether claiming through the feoffee, as heir, widow, or purchaser, or paramount, or collaterally, to the feoffee, as the lord by escheat and the husband by curtesy. If the condition was broken, the feoffee's estate was absolute and his estate was indefeasible, and all the legal consequences followed as though he had been absolute owner from the time of the feoffment. But until breach of condition, possession was not in general given, which was a further distinction between this mode of mortgage and the vivum vadium and old mortuum radium. In order to protect the mortgagor from the eviction of the mortgagee, to which he was become liable, a proviso was inserted, declaring, that until breach of condition the mortgagor might hold the estate; and on the other hand, the mortgagor engaged, that in such event he would do all lawful acts for further assurance. Although the common law did not favour conditions, but required strict performance of them (ƒ), yet it was in certain cases satisfied with the performance of the intent of the condition (g), though not performed in words; and although a difference was taken (1) between conditions to preserve and conditions to destroy an estate, the former being allowed to be performed as near the condition as could be, and the latter being strictissimi juris, yet conditions in mortgages, the performance of which, in fact, destroyed the estate of the mortgagee, were favoured in the eye of the law, and rather considered as belonging to the class of conditions for preserving estates. (3.) Conditions in Mortgages. The general rules at common law regulating the performance of conditions in mortgages were as follows: If time and place were appointed for payment of the money, tender must be made accordingly; but if no place were appointed, then (the money being a sum in gross, and collateral to the title of the land) the mortgagor was bound to seek the mortgagee and (e) Co. Litt. 239, a. (f) Ib. 205, a. (g) Shep. T. by Prest. 139. (4) Co. Litt. 206, a. tender him the money personally, if within the realm, and it was not sufficient to tender it on the land (i). If no time were appointed, the mortgagor had his whole life for payment of it (k). If no time were appointed, and the condition were, that the mortgagor (without mentioning heirs, &c.) should pay 107. to the mortgagee, and the mortgagor died without paying it, the condition was broken, and the estate absolute (1). But if a time had been appointed, and the condition had been, that the mortgagor (without more) should pay to the mortgagee 107., and the mortgagor died before the day (m), then his heir, executor, or administrator, or the guardian of the heir, might tender the money at the time, and save the condition. If the words of the condition were for payment unto the feoffee or his heirs (n), the money could not be paid to the executor or the assign; if "to heirs or assigns," and the mortgagee transferred the mortgage to another, it might be paid to the first or second feoffee (n); or if the first feoffee was dead, to his heirs, but not to his executors (p); for the law will never seek an assign in law, where there is one in fact (q); if "to heirs, executors, or assigns," it might be paid to either (q). If the condition was for payment by the mortgagor and I. S. (s), payment by I. S. alone, after the death of the mortgagor, was good; but not during his life. In equity the tender must be made to the persons entitled to receive the money and re-convey the estate, and, if the legal and partial beneficial interest is united in one of such persons, he cannot demand payment to himself on his separate receipt (†). Where the money is payable six months after the death of A., Time of paythere is no remedy before that period (u). ment. Where a loan is made for six or nine months, the option is in Option. the borrower (x). It was customary to specify in mortgages the place and hour of |