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condition. But if there had been a default, then, as the estate had become absolute at law, according to the old doctrine, the language of the books has been, that a reconveyance was necessary on discharging the debt. But the general understanding, and the practice on this subject in this country, has been different, though the cases are not uniform. This contrariety of opinion, which shows itself here and in England, proceeds from the vibration between law and equity views of the subject. A judge at law, as was observed in Gray v. Jenks, sometimes deals with the mortgage in its most enlarged and liberal character, stripped of its technical habiliments, and a judge in equity sometimes follows out the doctrine of law, and contemplates it with much of its original and ancient strictness. The debt, generally speaking, is considered to be the principal, and the land only the incident, and discharging or forgiving the debt, with the delivery of the security, any time before foreclosure, extinguishes the mortgage, and no reconveyance is necessary to restore the title to the mortgagor. So, an assignment of the debt by deed, by writing simply, or by parol, is said to draw the land after it as a consequence, and as being appurtenant to the debt. The one is regarded as the principal, and the other the accessary, and omne principale trahit ad se accessorium. The assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the language of the courts of law, as well as of the courts of equity; and the common sense of parties, the spirit of the mortgage contract, and the reason and policy of the thing, are with the doctrine.d.
a Preston, on Conveyancing, vol. ii. 200, 201.
b Lord Hardwicke, in Harrison v. Owen, 1 Atk. 520. 1 Sch. # Lef. 176,177. Judge Trowbridge's Essay on Mortgages, 8 Mass. Rep. 557. 561, 3. appendix.
C S Mason's Rep. 521.
d Lord Hardwicke, in Richards v. Syms, 3 Eq. Cas. Abr. 617. Barnard's Ch. Rep. 90. S. C. Lord Mansfield, in Martin v. Mow.
In Massachusetts, the technical rules of the common law are more strictly maintained. The doctrine of Lord Mansfield, in Martin v. Mowlin, is not regarded as correct, and upon the construction of their statute law the estate of the mortgagee cannot be assigned except by deed, though a bond may be assigned, and pass without deed, and even by delivery. Upon the discharge of the mortgage debt, after a default, a reconveyance is deemed requisite to restore the fee to the mortgagor. So, also, in New Jersey, notwithstanding the opinion that was declared in Den v. Spinning, the old English strict common law doctrine is recalled, and it is now held, that payment of the debt does not cause the title to revert to the mortgagor, and a conveyance is held to be necessary. This is the doctrine also in Maine, Connecticut, Virginia, and Kentucky.a
lin, 2 Burr, 978, 979. Johnson v. Hart, 3 Johns, Cas. 322. 1 Johns. Rep. 580. S. C. Jackson v. Willard, 4 Ibid. 41. Renyan v. Mersereau, 11 ibid. 534. Jackson v. Davis, 18 ibid. 7. Jackson v. Brown, 19 ibid. 325. Wilson v. Troup, 2 Cowen's Rep. 195. Jackson v. Blodget, 5 ibid. 202. Wentz v. Dehaven, 1 Serg. & Rawle, 312. Kinsey, Ch. J., in Den v. Spinning, 1 Halsted , 471. Morgan v. Davis, 2 Harr. & M Henry, 17. Paxon v. Paul, 3 ibid. 399. Story, J., in Hatch v. White, 2 Gall. Rep. 155.
a Judge Trowbridge's reading on the Law of Mortgage, 8 Mass. Rep. 554. appendix. Warden v. Adams, 15 ibid. 233. Parsons v. Welles, 17 ibid. 419. Vose v. Handy, 2 Greenleaf, 322. Den v. Dimon, 5 Halsted, 156. Phelps v. Sage, 2 Day's Rep. 151. Faulkner v. Brockenborough, 4 Rand. 225. Breckenridge v. Brook, 2 Marsh. Rep. 337. But in Gray v. Jenks, 3 Mason's Rep. 520., a satisfied mortgage, under the law of the state of Maine, was so far deemed an extinguished title, as that no action would lie upon it by the mortgagee. The irresistible good sense and equity of such a conclusion, were felt and forcibly expressed by the learned judge who decided that case. The opinions of Judge Trowbridge are cited with the greatest respect in Massachusetts, and he is considered, and I presume very justly, as the oracle of the old real property law. He criticises, very ably, the opinion of Lord Mansfield, and some of the observations attributed to his lordship in Martin V. Mowlin were no doubt very loosely made. Judge Trowbridge insists, that Lord Mansfield confounds the distinction between mortgages of land for a
term only, and a mortgage in fee. The former, he says, is but a chattel interest, and the latter an estate of inheritance, descendible as such, and the money due thereon is equitable assets. The Supreme Court of Massachusetts, in Parsons y. Welles, adhere to these views of the subject. But I would observe, with great submission and respect, that the doctrines of Judge Trowbridge, on mortgages, are far in arrear of the improvements of the age, in this branch of the science, and it will not do to take our doctrines of mortgages from Littleton and Coke. The language of the courts of law is now essentially the same as that in equity; and it is said again and again, to be an affront to common sense, to hold that the mortgagor, even of a freehold interest, is not the real owner. To show that many of the positions of Judge Trowbridge are not law at this day, it is sufficient to state, that he maintains that the equity of redemption is not liable to be taken in execution ;-that the mortgage money on redemption goes to the heir, and not to the executor of the mortgagee;-that a third mortgagee, without notice, may buy in the first mortgage, and secure himself against the second ;--that the mortgagee in fee has an interest which a creditor may take on execution. The cases of Morgan v. Davis, Paxton v. Paul, Jackson v. Davis, and Jackson v. Blod. get, may be selected, as cases in which it has been adjudged in courts of law, that on discharge of the mortgage, after a default, the fee reyerts to, and vests in the mortgagor, without any conveyance; and I am persuaded, that most of the courts of law in this country would not now tolerate a claim of title under a mortgage, admitted or shown to have been fully and fairly satisfied by payment of the debt. In New Hampshire, there is a statute provision, which restores the land to the mortgagor, by simple payment, or tender, after the condifion is broken. Sweet v. Horn, 1 Adams, 332.
OF ESTATES IN REMAINDER.
Estates in expectancy are of two kinds; one created by the act of the parties, and called a remainder ; the other by the act of law, and called a reversion. I shall confine myself in this Lecture to estates in remainder.
To give as much perspicuity as possible to the arrangement and discussion of so intricate a subject, I shall treat of remainders in the following order :
1. Of the general nature of remainders. 2. Of vested remainders. 3. Of the nature and variety of contingent remainders. 4. Of the rule in Shelley's case. 5. Of the particular estate requisite to support a remainder. 6. Of remainders limited by way of use. 7. Of the time within which a contingent remainder must vest. 8. Of the destruction of contingent remainders. 9. Of some remaining properties of contingent remainders.
(I.) Of the general nature of remainders.
A remainder is a remnant of an estate in land, dependling upon a particular prior estate, created at the same time,
and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it. In the New York Revised Statutes,
a Co. Litt. 49. a. 143. a. 2 Blacks. Com. 163. Preston on Estates, vol. i. 90, 91.
bN Y. Revised Statutes, vol. i. 723. sec. 10, 11.
it is de med to be an estate limited to commence in possessiosd a future day, on the determination, by lapse of time, og otherwise, of a precedent estate, created at the same time. Mr. Cornish, after a careful analysis of Lord Coke's definition, substitutes his own. A remainder, he says, is “ an estate in lands, hereditaments, or chattels real, limited to one who may take a new estate therein, on the natural determination of a particular estate in the same subject matter, created either in fact, or in contemplation of law, together with such particular estate, and forming, to certain purposes, but one estate therewith.” A remainder may consist of the whole remnant of the estate; as in the case of a lease to A. for years, remainder to B. in fee; or it may consist of a part only of the residuary estate, and there may be a reversion beyond it leit vested in the grantor, as in the case of a grant to A. for years, remainder to B. for life; or there may be divers remainders over exhausting the whole residuum of the estate, as in the case of a grant to
A. for years, remainder to B. for life, remainder to C. in tail, Mremainder to D. in fee. The various interests into which
an estate may be thus subdivided, make, for many purposes, but one estate, being different parts or portions of the same entire inheritance. Though a remainder, in its original simplicity, would appear to be very easy, safe, and practical, yet the doctrine of remainders, when the collateral refinements, and complex settlements which have, in the
a Cornish: Essay on the Doctrine of Remainders, 1827, p. 96. Mr. Cornish pronounces his own definition to be accurate, but he is not remarkably happy, either in brevity, or neatness, or clearness of expression. He ought to be accurate ad unguem, for he has occupied upwards of seventy pages in a laboured analysis to produce his definition; and some parts of his inquiry involve critical discussions upon the most abstruse, subtle, and artificial distinctions in the law. They could not be made intelligible without giving more space to them than these lectures will allow.
h 2 Blacks. Com. 164.