ejectment in one of the courts of the common law, such court is invested, by statute, with the power of exercising a species of equitable interference; for if the mortgagor still possesses the equitable right of redemption, he is enabled by 7 Geo. II. c. 20, and 15 & 16 Vict. c. 76, s. 219, to apply to the common law court for relief; and that court will accordingly compel the mortgagee to stay his proceedings, and to execute a reconveyance, upon payment of principal, interest and costs, to be computed by its officer(s). The state of the law, as above explained, with respect to mortgages, affords the reader an example of the distinction referred to in a former place between legal and equitable estate (t). In the courts of common law, the ownership of the land, as we have seen, is considered as absolutely vested, upon the non-payment of the money advanced, in the mortgagee. The courts of equity, on the other hand, hold the mortgagor to be the true owner until a foreclosure takes place (u). There exists therefore, in respect of the same subject-matter, a legal and an equitable estate; the former being vested in the mortgagee, the latter in the mortgagor. IV. [A fourth species of estates, defeasible on condition,. are those held by statute merchant and statute staple (v); which are very nearly related to the vivum vadium before mentioned, or estate held till the profits thereof shall discharge a debt liquidated or ascertained. For both the statute merchant and statute staple are securities for (s) See Goodtitle v. Pope, 7 T. R. 185; Doe v. Roe, 4 Taunt. 887; Doe v. Steele, 1 Dowl. 359; Hurd v. Clifton, 4 Ad. & El. 814; Sutton v. Rawlings, 3 Exch. 407; Filbee v. Hopkins, 6 Dow. & L. 264; Doe v. Louch, ibid. 270; Corder v. Morgan, 18 Ves. 344. (t) Vide sup. p. 235; 1 Sand. Us. 203, 2nd ed. (u) Cashborn v. Scarfe, 7 Vin. Ab. 156; 2 Eq. Ca. Ab. 728, S. C. and see Amherst v. Dawling, 2 Vern. 401. (v) As to these estates, see 2 Inst. 322; 2 Saund. by Wms. 69 c, n. (3); Reeves's Hist. Eng. Law, vol. ii. pp. 161, 393. [money; the one entered into before the chief magistrate of some trading town, pursuant to the statute 13 Edw. I. De mercatoribus, and thence called a statute merchant: the other pursuant to the statute 27 Edw. III. c. 9, before the mayor of the "staple ;" that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by act of parliament in certain trading towns; from whence this security is called a statute staple. They are both securities for debts acknowledged to be due; and originally permitted only among traders, for the benefit of commerce; whereby not only the body of the debtor may be imprisoned, and his goods seized in satisfaction of the debt, but also his lands may be delivered to the creditor, till out of the rents and profits of them the debt may be satisfied; and, during such time as the creditor so holds the lands, he is tenant by statute merchant or statute staple. There is also a similar security, the recognizance in the nature of a statute staple, acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile transaction is extended to all the king's subjects in general, by virtue of the statute 23 Hen. VIII. c. 6, (amended by 8 Geo. I. c. 25,) which direct such recognizances to be enrolled and certified into chancery. But these, by the statute of frauds, 29 Car. II. c. 3, are only binding upon the lands in the hands of bonâ fide purchasers, from the day of their enrolment, which is ordered to be marked on the record.] All these securities, however, by statute staple, statute merchant, and recognizances in the nature of a statute staple, are now fallen into disuse (a); having been long (x) It has been remarked (see Burt. Compend. 298) that the law relative to statute staple is still so far of practical importance, that by 33 Hen. 8, c. 39, and 13 Eliz. c. 4, persons indebted to the crown are to incur, in certain cases, the same liability as if they were bound in a statute staple. As to the statutes just cited, see also Regina v. Ellis, 4 Exch. 652. ago superseded by other more convenient and efficacious remedies, devised by the law in modern times for the benefit of creditors, especially by the statutes relative to bankrupts (y). V. [Another similar conditional estate created by operation of law, for security and satisfaction of debts, is called, an estate of elegit. What an elegit is, and why so called, will be fully explained in a subsequent part of this work (z). At present it may be sufficient to mention that it is the name of a writ, founded on the statute of Westminster the second (a),] by which, after a plaintiff or defendant has obtained judgment in an action, the sheriff gives him possession of the lands and tenements of the opposite party, to be occupied and enjoyed until the money due on such judgment is fully paid; [and during the time he so holds them, he is called tenant by elegit. It is easy to observe that this is also a mere conditional estate, defeasible as soon as the judgment debt is levied (b).] And by this writ, at one period, only one half of the lands and tenements of the judgment debtor could be seized in execution. For as the general right which a man possessed of aliening his lands by his own act did not (as is commonly supposed) extend, at the time of the passing of the statute of Westminster the second, to the whole of his lands (c), that statute permitted them to be only partially affected by the process of law for his ordinary debts; though on the other hand, by the statute De mercatoribus, passed in the same year(d), the whole of a man's lands were liable to be (y) As to the law of bankruptcy, vide post, bk. 11. pt. II. c. VI. (z) Vide post, bk. v. c. x. (a) 13 Edw. 1, c. 18. See 2 Saund. by Wms. 68 a, n. (1); Reeves's Hist. Eng. Law, vol. ii. p. 187. (b) Dighton v. Greenvil, 2 Vent. 327; Price v. Varney, 3 Barn. & Cress. 733. (c) Wright's Ten. 154; Blackstone says, that "before the statute "of Quia emptores, 18 Edw. 1, c. 1, "it is generally thought that the "proprietor of lands was enabled to "alienate no more than a moiety of "them."-2 Bl. Com. p. 161. (d) 13 Edw. 1. pledged in a statute merchant, for a debt contracted in trade. So much more readily did the feudal restraint on alienation yield to considerations of a commercial kind, than to any others. And such continued to be the state of the law as to the writ of elegit, until the modern statute 1 & 2 Vict. c. 110; which for the first time enabled the judgment creditor to seize by that writ the whole of the judgment debtor's lands and tenements (e). We shall conclude our notice of the tenants by statute merchant, statute staple, and elegit, with this remark, that though they are said to hold ut liberum tenementum until their debts are paid, yet are their estates no freeholds, but chattels, and pass to the personal representative (f): [which is probably owing to this: that, being a security and remedy provided for personal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their succession; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vested in those to whom the debts, if recovered, would belong. For, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged; this interest in the lands shall be a chattel interest, and on the death of such executor shall go to his executors (g): because, they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund out of which he has directed them to be paid.] (e) 1 & 2 Vict. c. 110, s. 11. The same statute (s. 18) provides that all decrees and orders in equity and rules of courts of law and orders in lunacy, whereby any money shall be payable to any person, shall have the effect of judgments in the superior courts of common law; and the persons to whom such money is payable are, as (g) Co. Litt. 42 a. CHAPTER VII. OF ESTATES IN POSSESSION, REVERSION, AND REMAINDER. [HITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view with regard to the time of their enjoyment (a).] When contemplated in this light, they are either in possession or expectancy. Where a man is entitled immediately to the possession of land, by virtue of any of the estates or interests which we have been considering, his estate is said to be in possession (b); when entitled to it, not immediately, but in futuro, his estate is said to be in expectancy. Of expectancies, again, there are at the common law two sorts: one called a reversion; the other a remainder. I. Of estates in possession not much remains to be observed. All the estates hitherto mentioned were supposed to be of this kind; for in laying down general rules we usually apply them to such estates as these. But it is material further to remark of them, that a man may have an estate in possession in land, and may nevertheless not be in actual possession of the land; for the tenant may be (a) Vide sup. p. 235. (b) Blackstone (vol. 2, p. 163) defines estates in possession as "those whereby a present interest 64 passes to and resides in the tenant, "not depending on any subsequent "circumstance or contingency." |