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it may be very questionable whether such a condition would be good at this day. In Newkırk v. Vewkirk, the court looked with a hostile eye upon all restraints upon the free exercise of the inherent right of alienation belonging to estates in fee, and a devise of lands to the testator's children, in case they continued to inhabit the town of Hurley, otherwise not, was considered to be unreasonable and repugnant to the nature of the estate.
If it be doubtful whether a clause in a deed be a covenant or a condition, the courts wilt cime against the latter construction, for a covenant is far preferable to the tenant. If a condition be broken, the landlord may indulge his caprice, and even malice, against the tenant, without any certain relief; but equity will not enforce a covenant embracing a hard bargain; and at law there can be no damages without an injury. Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, depending on the contract. The distinctions on this subject are extremely subtle and artificial; and the construction of a deed, as to its operation and effect, will, after all, depend less upon artificial rules, than upon the application of good sense and sound equity to the object and spirit of the contract in the given case. A tender of performance at the day will save a condition, and if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains.
a 2 Caines' Rep. 345.
c The words usually employed in creating a condition are, upon condition, and this, says Lord Coke, is the most appropriate expression; or the words may be, so that-provided—if it shall happen, &c. The apt words of limitation are, while--so long as—-until-during, &c. The words provided always, may, under the circumstances, be taken as a condition, or as a limitation, and sometimes as a covenant. Litt. sec. 325-330. Co. Litt. 203. a. b. Mary Portington's case, 10 Co. 41. b. 42. a. Bacon's Abr. tit. Conditions, H.
d Litt. sec. 338. Co. Litt. 209. b. Jackson v. Crafts, 18 Johnts: Rep. 110. Swett v. Horn, 1 Adam's N. H, Rep. 332.
OF THE LAW OF MORTGAGE.
estate, by wo
The legal debt, and
A MORTGAGE is the conveyance of an estate, by way of pledge, for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree.
There is no branch of the law of real property which embraces a greater variety of important interests, or which is of more practical application. The different, and even conflicting views, which were taken of the subject by the courts of law and of equity, have given an abstruse and shifting character to the doctrine of mortgages. But the liberal minds and enlarged policy of such judges as Hardwicke and Mansfield, gave expansion to principles, tested their soundness, dispersed anomalies, and approximated the law of the different tribunals on this as well as on other heads of jurisprudence. The law of mortgage, under the process of forensic reasonings, has now become firmly established on the most rational foundations,
In the examination of so extensive a title, I shall endeavour to take a just and accurate, though it must necessarily be only a very general view of the subject, under the following heads :
1. Of the origin and general nature of mortgages. 2. Of the mortgagor's estate and equity of redemption. 3. Of the estate and rights of the mortgagee. 4. Of foreclosure. Vol. IV.
(1.) Of the origin and general nature of mortgages.
The English law of mortgages appears to have been borrowed, in a great degree, from the civil law; and the Roman hypotheca corresponded very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was entitled to his actio hypothecaria, to obtain possession of the pledge, when the debtor was in default; and the debtor had his action to regain possession, when the debt was paid, or satisfied out of the profits, and he might redeem at any time before a sale. The use of mortgages is founded on the wants and convenience of mankind, and would naturally follow the progress of order, civilization, and commerce. In the time of Glanville, the mortgage of lands, as security for a loan, was in use, though during the feudal ages it was doubtless under the same check with the more absolute alienation of the fee; and both the alienation and the mortgage of land were permitted only with the concur
a Mr. Butler is of opinion, that mortgages were introduced less upon the model of the Roman pignus or hypotheca, than upon the common law doctrine of conditions. But upon a view of the Roman hypotheca, it is impossible to withhold our belief, that the English law of mortgages, taken in its most comprehensive sense, was essentially borrowed from the civil law. Thus, in the Roman law, the mortgage could be held as a security for further advances, (Code, 8. 27. 1.) and a covenant that the mortgage should be forfeited absolutely on a default, was void. (Code, 8. 35. 3.) So, a mortgagor was entitled to due notice and opportunity to redeem before his right was extinguished; and the pledge could not be sold, without a protracted notice, or a judicial decree. (Code, 8. 28. 4. Ibid. 34. 3. sec. 1.) The mortgagee was even allowed to tack another incumbrance to his own, and thereby to gain a preference over an intermediate incumbrance. (Dig. 20. 4. 3.) The analogy might be traced in other important particulars. See Pothier's Pandectæ Justinianeæ, lib. 27. and Dict. du Digest par Thévenot-Dessaules, tit. Hypotheque, passim. In Doctor Brown's View of the Civil Law, vol. i. p. 200—210, the general features of similitude between the Roman hypotheca and the English mortgage, are strongly delineated
rence of the lord. The English books distinguish between a vadium vivum and vadium mortuum. The first is when the creditor takes the estate to hold and enjoy tt, Without any limited time for redemption, and until he repays him. self out of the rents and profits. In that case, the land survives the debt; and when the debt is discharged, the land, by right of reverter, returns to the original owner. In the other kind of mortgage, the fee passed to the creditor, subject to the condition of being defeated, and the title of the debtor to be resumed, on his discharging the debt at the day limited for payment; and if he did not, then the land was lost, and became dead to him for ever. This latter kind of mortgage is the one which is generally in use in this country. The Welch mortgages, which are very frequently mentioned in the English books, though they have now gone entirely out of use, resembled the vivum vadium of Coke, or the mortuum vadium of Glanville ; for though in them the rents and profits were a substitute for the interest, and the land was to be held until the mortgagor refunded the principal ; yet if the value of the rents and profits was excessive, equity would, notwithstanding any agreement to tlie contrary, decree an account.
a Glanville, lib. 10. ch. 6. Nulli liceat feudum dendere vel pignonrare sine permissione illius domini. Feud. lib. 2. tit. 55,
b Co. Litt. 205. a. 2 Blacks. Com. 157.
c Fulthrope v. Foster, 1 Vern. 476. The Welch mortgage, under its strict contract, without any mitigation of its severity in equity, was analogous to the contract termed antichresis in the Roman law. Dig. 20. 1. 11. 1. It was likewise analogous to the mortgage of lands in the age of Glanville ; and he gives to a mortgage, by which the creditor was to receive the rents and profits during the detention of the debt, without account, and without applying them to reduce it, the name of mortuum vadium. It was a hard and unconscientious, but lawful contract; and Glanville, with primeval frankness and simplicity, does not scruple to condemn it as unjust, while he admits it to be lawful; injusta est et inhonesta Glan. lib. 10. ch. 6. and 8. The French code civil, no. 2085. has adopted the Roman antichresis, with this mitigation, that the rents and profits are to be applied to keep down the interest, and the surplus, if any, to extirrguish the principa).