IV. A fourth species of estates, defeasible on condition subsequent, an held by statute merchant, and statute staple; which are very neary relat vivum vadium before mentioned, or estate held till the profits thereof charge a debt liquidated or ascertained. For both the statute mer statute staple are securities for money; the one entered into before magistrate of some trading town, pursuant to the statute 13 Edw. I des bus, and thence called a statute merchant; the other pursuant to the Edw. III. c. 9, before the mayor of the staple, that is to say, the gratia the principal commodities or manufactures of the kingdom, formerly k of parliament in certain trading towns,(d) from whence this security is statute staple. They are both, I say, securities for debts acknow. due; and originally permitted only among traders, for the benent of whereby not only the body of the debtor may be imprisoned, and : seized in satisfaction of the debt, but also his lands may be deuveri creditor, till out of the rents and profits of them the debt may be satisf during such time as the creditor so holds the lands, he is tenant merchant or statute staple. There is also a similar security, the re in the nature of a statute staple, acknowledged before either et ti persons, he will be postponed to encumbrancers who have been deceived and in advance money by his collusion with the mortgagor; but the mere ciri ulust al taking or keeping possession of the title-deeds is not of itself a suthwest postponing the first mortgagee, unless there be fraud, conceaiment, or » lle pose, or concurrence in such purpose, or that gross negligence which an, s dence of a fraudulent intention, (Evans rg. Bicknell, 6 Ves, 190, Martiana va Russ, 216. Barnett vs. Weston, 12 Ves. 133. Bailey 18. Fermor, 9 Pr 257. kor sell, Gilb. Eq. Rep. 123;) and, of course, a prior encumbrancer, to whose chatur estate possession of the title-deeds is not a necessary incident cannot be jusubsequent encumbrancers because he is not in possession of the title-deris, Faulder, 4 Mad. 138. Tourle rs, Rand, 2 Br. 652. Among mortgagees, where none of them have the legal estate, the rule .. that qui prior est tempore potior est jure ; and the several encumbrances must be j ing to their priority in point of time. Brace rg. Duchess of Mariborough Zi Clarke rs. Abbot, Bernard Ch. Rep. 460, Earl of Pomfret vs. Lord W.2 AP 486. Maundrell vs. Maundrell, 19 Ves, 260, Mackreth us. Syn.mons, 15 Vo when, of several persons having equal equity in their favour, one has besnie prudent enough to get in the legal estate, he may make all the avaz.! age which the law admits, and thus protect his title, though subsequent in je at that of other claimants: courts of equity will not interfere in such cases law to prevail. In conformity with this settled doctrine, if an estate be er with several mortgage-debts, the last mortgagee, provided he lent his money without notice, may, by taking in the first encumbrance, carry.ng with it tar protect himself against any intermediate mortgage: no me se mortgagee con estate out of his hands without redeeming the last encumbrance as WISE Wortley vs. Birkhead. 2 Ves, Sen. 573, Morret vs. Paske, 2 Atk 53 Þor Pr. 4×7. Barnett 14, Weston, 12 Ves, 135. – But, to support the doctrina fairness of the circumstances under which the loan desired to be ta kod was be liable to no impeachment, (Maundrell es. Maundrell, 10 Ves 256 at i point has never called for decision, it has been said to be very doubt, w mortgagee, by taking in the first mortgage, can exclude the servitia, af tur first when he conveyed to the thurd, knew of the second. Mackreth, in NVIDI 335. Indisputably, a mortgagee purchasing the mortgagor espa?% of res pune encumbrancer, cannot set up a prior mortgage of his own mortgage which he has got in) against meme encumbrances of wha Toulmin ea. Steere, 3 Meriv. 224. Mocatta va, Murgatrovi, 1 P-Wmns Paske, 2 Atk. 62. Upon analogous principles, if the first mortgages a disclosing his own encumbrance on the estate, when the second mortgage money, under the persuasion that the estate was labie for no priori gagee, in just recompense of his fraudulent cones aiment, w.libu postponia And the rule, as well as the reason, of decision is the same, where the L gained any other advantage in subsequent dealings respecting the moon.gigi the connivance of the mortgagee. Becket ra Cordley, 1 Br 7 1. ward, 2 Atk. 49. Part of this note is extracted from 2 Hovenden on i CHITTY. 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 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 directs 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 bona fide purchasers, from the day of their enrolment, which is ordered to be marked on the record. V. Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an *estate by elegit. What an elegit is, and why so called, will be explained in the third part of these com[*161 mentaries. At present I need only mention that it is the name of a writ, founded on the statute(e) of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gives him possession of one-half of the defendant's lands and tenements, to be occupied and enjoyed until his debt and damages are 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 debt is levied. But it is remarkable that the feodal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier and much more effectually for the benefit of trade and commerce, than for any other consideration. Before the statute of quia emptores, (f) it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the statute therefore of Westm. 2 permits only so much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the statute de mercatoribus (passed in the same year)(g) the whole of a man's lands was liable to be pledged in a statute merchant, for a debt contracted in trade; though one-half of them was liable to be taken in execution for any other debt of the owner. I shall conclude what I had to remark of these estates, by statute merchant, statute staple, and elegit, with the observation of Sir Edward Coke.(h) "These tenants have uncertain interests in lands and tenements, and yet they have but chattels and no freeholds;" (which makes them an exception to the general rule;) "because though they may hold an estate of inheritance, or for life, ut liberum tenementum, until their debt be paid; yet it shall go to their executors: for ut is similitudinary; and though to recover their estates they shall have the same remedy (by assize) as a tenant of the freehold shall have,(?) yet it is but the *similitude of a freehold, and nullum simile est idem." This indeed [*162 only proves them to be chattel interests, because they go to the executors, which is inconsistent with the nature of a freehold; but it does not assign the reason why these estates, in contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; 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:(k) 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) 13 Edw. I. c. 18. () 18 Edw. I. (9) 13 Edw. I. (The words of the statute de mercatoribus are "puisse porter bref de novde disseisine auxi, sicum de franktene ment." (*) Co. Litt. 42. CHAPTER XI. ESTATES IN POSSESSION, REMAINDER, AND REVELSION HITHERTO We have considered estates solely with regard to their d .. the quantity of interest which the owners have therein. We are La sider them in another view; with regard to the time of their en, ymond actual pernancy of the profits (that is, the taking, perception, or rec rents and other advantages arising therefrom) begins. Estates there respect to this consideration, may either be in possession, or in dayt of expectancies there are two sorts; one created by the act of the parti a remainder; the other by act of law, and called a reversion. I. Of estates in possession, (which are sometimes called estates ezvest by a present interest passes to and resides in the tenant, not depeti.“ 2 subsequent circumstance or contingency, as in the case of estates there is little or nothing peculiar to be observed. All the estates hitherto spoken of are of this kind; for, in laying down general re usually apply them to such estates as are then actually in the tenants sion. But the doctrine of estates in expectancy contains some of the i most abstruse learning in the English law. These will therefore require a discussion, and demand some degree of attention. II. An estate then in remainder may be defined to be, an estate I take effect and be enjoyed after another estate is determined *164] man scised in fee-simple granteth lands to A. for twenty years a the determination of the said term, then to B. and his heirs forever tenant for years, remainder to B. in fee. In the first place an estate is created or carved out of the fee, and given to A; and the res mainder of it is given to B. But both these interests are in fact e estate; the present term of years and the remainder afterwards, wi together, being equal only to one estate in fee.(a). They are indeed differe but they constitute only one whole; they are carved out of one and tis inheritance: they are both created, and may both subsist, together, possession, the other in expectancy. So if land be granted to A 1rte years, and after the determination of the said term to B för lite, ani a' determination of B.'s estate for life, it be limited to C. and his hors this makes A. tenant for years, with remainder to B. for life, rena 1. 1-* C. in fee. Now, here the estate of inheritance undergoes a division at portions: there is first A.'s estate for years carved out of it; and after estate for life; and then the whole that remains is limited to Cani ! And here also the first estate, and both the remainders, for lite and 1. one estate only; being nothing but parts or portions of one certare at and if there were a hundred remainders, it would still be the salle ti a principle grounded in mathematical truth, that all the parts are equa more than equal, to the whole. And hence also it is easy to cost, that i (*) Co. Litt 143. 11. An estate in possession gives a present right of present enjoyment 2. A vested remainder is an estate to take effect after another estate for vvat in tail, which is so limited, that if that particular estate were to exper way, at the present time, some certain person would become thereupon ent. immediate enjoyment. 3. A contingent remainder is where either the person to whom or the even which the future estate is to be enjoyed is at present uncertain 4. An executory devise is a future estate limited by will which would not a conveyance at common law, owing to the fact of its being I'm ted on a having a sufficient particular estate to support it or to its respecting personal 5. A contingent use is where a future estate is limited to arise in a convocat which would not be good in a conveyance at common law for the salle Pean been stated in regard to executory devises.—SHARSWOOD, mainder can be limited after the grant of an estate in fee-simple :(b) because a fee-simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all *the remainders expectant thereon, is only one fee-simple: as 401. is part of [*165 1007. and 607. is the remainder of it: wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole 1007. is appropriated, there can be any residue subsisting. Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded. 1. And, first, there must necessarily be some particular estate precedent to the estate in remainder.(c) As, an estate for years to A., remainder to B. for life; or, an estate for life to A., remainder to B. in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder; but the interest granted, whatever it be, will be an estate in possession. An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder; it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law, (d) to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder;(e) because at *common law no freehold in lands could pass without livery of seisin; which must operate either [*166 immediately, or not at all. It would therefore be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession. Therefore, though a lease to A. for seven years, to commence from next Michaelmas, is good; yet a conveyance to B. of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A. for three years, with remainder to B. in fee, and makes livery of seisin to A.; here by the livery the freehold is immediately created, and vested in B., during the continuance of A.'s Yet deeds acting under the statute of uses, such as bargain and sale, covenant to stand seised, or a conveyance to uses, or even a devise, may give an estate of freehold to commence in futuro; as a bargain and sale to A. and his heirs, from and after Michaelmasday now next ensuing, is good; and the use, in the mean time, results to the bargainor or his heir. See 2 Prest. Conv. 157. Saund. on Uses and Trusts, 1 vol. 128; 2 vol. 98. -ARCHBOLD. The Real Property Commissioners propose to abolish this distinction between the rule of the common law and the rule under the statute of uses, and to enact that estates may at common law be conveyed or created to commence at a future time, whether certain or uncertain. If this be done, the first rule laid down by Blackstone will, so far as it relates to future estates, be abolished, and in effect a remainder may then be created without any particular estate to support it.—Stewart. term of years. The whole estate passes at once from the grantor to the and the remainderman is seised of his remainder at the same tra termor is possessed of his term. The enjoyment of it must index of the till hereafter; but it is to all intents and purposes an estate commate senti, though to be occupied and enjoyed in futuro. As no remainder can be created without such a precedent part. therefore the particular estate is said to support the remainder. B. will is not held to be such a particular estate as will support a remainder o For an estate at will is of a nature so slender and precarious, that it is not upon as a portion of the inheritance; and a portion must first be take it, in order to constitute a remainder. Besides, if it be a treehold ♬ livery of seisin must be given at the time of its creation; and the er*grantor to do this determines the estate at will in the very *167] which it is made (g) or if the remainder be a chattel ir ter perhaps the deed of creation might operate as a future contract, it the years be a party to it, yet it is void by way of remainder; for it independent contract, distinct from the precedent estate at w, a remainder must be part of one and the same estate, out of which particular estate is taken.(h) And hence it is generally true that i ticular estate is void in its creation, or by any means is defeated atters remainder supported thereby shall be defeated also:07) as where the pa estate is an estate for the life of a person not in esse; k or an estate upon condition, on breach of which condition the grantor enters at i estate ;(/) in either of these cases the remainder over is vond 2. A second rule to be observed is this: that the remait ger must e or pass out of the grantor at the time of the creation of the partier ar esta As, where there is an estate to A. for life, with remainder to B in tee remainder in fee passes from the grantor at the same t me that sta to A. of his life-estate in possession. And it is this which idaces the r at common law of livery of seisin being made on the particular estate, a freehold remainder is created. For, it it be linated even on an esta' it is necessary that the lessee for years should have livery of sex pit, e convey the freehold from and out of the grantor, otherwise the rema void.(n) Not that the livery is necessary to strengthen the estate but, as livery of the land is requisite to convey the freehold, and yet given to him in remainder without infringing the possession of the years, therefore the law allows such livery, made to the tenant of t. e jar estate, to relate and enure to him in remainder, as both are but one law.(0) ཐཱ *168] *3. A third rule respecting remainders is this- that the must vest in the grantee during the continuance of the part: or en instants that it determines.p) As, if A. be tenant for ade, remai in tail; here B.'s remainder is vested in him, at the creation of the par estate to A. for life; or if A. and B. be tenants for their joint lives rer a the survivor in fee; here, though during their joint lives, the renavir in neither, yet on the death of either of them, the remainder Vests the survivor: wherefore both these are good remanders. But, if at limited to A. for life, remainder to the eldest son of B in ta l. ar-1 A B. hath any son; here the remainder will be void, for it did not vest during the continuance, nor at the determination, of the parti even supposing that B. should afterwards have a son, be stali to it to remainder; for, as it did not vest at or before the end of the part it never can vest at all, but is gone forever q. And thas deper, 28 1 1* 9 * ciple before laid down, that the precedent particular estate and tie are one estate in law; they must therefore subsist and be in i |