Mortgages
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 1067
HIGH COURT OF CHANCERY
1EQ, CA. ABE. 310. MORTGAGES 1067 [310] CAP. XLI. mortgages. (A) Of the. Nature and different Kinds of Mortgages ; and herein of the Power of Equity in supplying Defects in Favour of the Mortgagee, and in making that a Mortgage which otherwise would be an absolute Conveyance. (B) Of the Equity of Redemption, at what Time. (C) Of the Persons to redeem. (D) Of Foreclosure; and here of opening the Foreclosure, Parties foreclosed, and Tender and Refusal of the Mortgage Money. (E) Where there are several Mortgagees of the same Estate; what Remedy they have against the Mortgagor, and against each other. (F) Where a Mortgagee may protept himself by buying in precedent Incumbrances. (G) Where a Person who comes to redeem must do Equity to the Mortgagee before he will be admitted. (H) Mortgage-Money, to whom to be paid. (I) Mortgagee.answerable for the Profits, and how to account.. (K) How the Assignee of the Mortgagee is to account. (A) of the nature and different kinds of mortgages ; and herein of the power of equity in supplying defects in favour of the mortgagee, and in making that a mortgage which otherwise would be an absolute conveyance. 1. A. Mortgage is the same Thing as the Hypotheca of the Civilians, and may be defined a Pledging of Lands, or other [311] immoveable Thing, for Money lent in such Manner, that the Profit or Usufrudus of the Thing pledged remains with the Debtor till such Time as Default is made in Payment of the Money at the Time appointed. (The Civil Law distinguished between the Pignus and Hypotheca ; the Pignus was when any Thing was obliged for Money lent, and the Possession passed to the Creditor ò the Hypotheca was when the Thing was obliged for Money lent, and the Possession remained with the Debtor ; and in case of Goods pignorated, the Creditor was obliged to the same Diligence in keeping them, as he used about his' own ; so that if the Goods were lost by the Negligence of the Creditor, an Action lay ; for the Property being transferred to the Creditor for a particular Purpose, he was to keep them at his Peril : If the Debtor did not redeem the Thing pledged, the Creditor was to foreclose the Redemption of the Debtor : or if the Money was not paid, the Creditor had his Actio Pignoritia or Hypothecaria ; but if the Money was tendered or paid to the Creditor, the Contract of Pignoration was dissolved, and the Debtor might have the Pledge back as a Thing lent; Justin. Vin. 592, and this seems to have introduced the Notion among us of the Debtor's Right of Redemption.) 2. There were no Mortgages of Lands whilst the ancient feudal Tenures continued, because the Feud was filled with a Tenant from the Lord's original Bounty ; but when a Liberty of Alienation was given, two Manners of Ways of mortgaging were made Use of, which Littleton distinguishes between, and calls by the Names of Vadium vivum and Vadium mortuum. , Co. Lit. 205. 3. The Vadium vivum is where a Man borrows £100 of another, and makes an Estate of Lands to him, till he hath received the said Sum of the Issues and Profits of the Lands ; and it is called Vadium vivum, because neither the Money nor the Land dieth ; for the Lands are constantly paying off the Money, and they are not left as a dead Pledge, in case the Money be not paid; and this seems to have been the most ancient way of pledging. Lit. Sect. 205. 4. The Vadium mortuum is so called, because it is doubtful whether the Feoffor will pay the Money at the Day limited, or not; and if he do not pay, the Land which is but in Pledge, upon Condition for the Payment of the Money, is taken from him for ever, and so dead to him ; and if he do pay it, then the Pledge is dead to the Tenant of the Land. The ancient. Way of making those Mortgages was by a Charter of Feoff- ment on Condition, that if the Feoflor, or his Heirs, paid the Sum to the Feoffee, or his Heirs, he should re-enter and re-possess, and sometimes the Condition was contained in the Charter of Feoffment, and sometimes it was defeasanced by another Charter made at the same Time. Lit. 332] Maddox, 318, 1068 MORTGAGES 1EQ. CA. ABB. 312. 5. These Sort of Conveyances were subject to these Inconveniences, that if the Money were not paid at the day, the Estate became absolute, and was subject to the Dower of the Wife of the Feoffee, and all other his Real Charges and Incumbrances, though he were afterwards permitted to perform the Condition: Co. Lit. 221; [Nash v. Preston,] Cro. Car. 190. G. But the Courts of Equity have set this Matter right, and have maintained the Bight of Redemption not only against Tenant in Dower, and the Persons that come under the Feoffee, but even against Tenant by the Curtesy and the Lord by Escheat, that are in the Post; because the Payment of the Money doth, in Consideration of Equity, put the Feoffor in statu quo, since the Lands were originally only a Pledge for the Money lent. [Pawlett v. Att.-Gen.] Hard. 465, 469. 7. If Tenant in Tail demises Lands for ninety-nine Years by Way of Mortgage, under a Condition of Redemption, and on his Marriage suffers a Recovery, and in Consideration of the Portion settles a Jointure, and then borrows more Money of the Mortgagee, and appoints the Term as a Security, the Recovery inures to make good the Term; and if the Mortgagee had no Notice of the Jointure, he [312] shall be allowed the second Money lent as well as the first. [Goddard v. Complin,] 1 Chan. Ca. 119, 120. 8. If a Copyholder in Fee surrenders to the Use of the Mortgagee in Fee, and the Copyholder becomes a Bankrupt before Presentment, and there is no Presentment; yet per Cowper, Lord Chan., though the Surrender was void in Law for want of a Pre sentment, and that might be the Laches of the Mortgagee in not procuring of it, yet the Surrender was a Lien, and that bound the Land in Equity; and the Assignee under the Commission of Bankruptcy ought not to be in a better Case than the Bank rupt, who was plainly bound in Equity by this defective Conveyance. Mich. 8 Ann. [1709] Taylor and Wheeler, 2 Salk. 449. (S. C. ante 122; 2 Vern. 564; 1 P. Wms. 280; Free, in Chan. 524.) * 9. The Plaintiff lent a Sum of Money on the Mortgage of some Houses, and had a Bond for Payment of the Money, as usual in such Cases ; afterwards he lent a farther Sum of £2000 on the Equity of Redemption, and had a Bond for that likewise ; afterwards the Mortgagor becomes a Bankrupt, and by some Accident the Value of the Houses sunk so much, that they were not sufficient to raise the Mortgage-Money first lent; and on a Bill brought to have them sold, and that as to so much as they fell short to answer the first Mortgage-Money, the Mortgagee might come in upon his Bond as a Creditor ; it was so decreed; and as to the £2000 lent upon the Equity, which was worth nothing, it must stand singly upon the Bond. Pasch. 1695, Wiseman and Carbonell. 10. A-, lends Money to B. to carry on certain Buildings, and takes a Mortgage from him to secure £16,000 with Interest, and by another Deed executed at the same Time, takes a Covenant from B. that he should convey to him, if he thought fit, Ground- Rents to the Value of £16,000, at the Rate of twenty Years Purchase ; and on a Bill brought to redeem, the Master of the Rolls decreed a Redemption, on Payment of Principal, Interest and Costs, without Regard to that Agreement, but set aside the same as unconscionable; for a Man shall not have Interest for his Money, and a collateral Advantage besides for the Loan of it, or clog the Redemption with any By-Agreement. Mich. 1705, Jennings and Ward, 2 Vern. 520. 11. If the Condition of a Mortgage is, that the Mortgagor should redeem during his Life, or that the Mortgagor, and the Heirs of his Body, should redeem ; yet Equity will admit the General Heir of such Mortgagor to a Redemption, because this can be no Purchase, since there is a Clause of Redemption ; and when the Land was originally only a Pledge for Money, if the Principal and Interest be offered, the Land is free ; and it would be very hard, that it should be in the Power of the Scrivener, or griping Usurer, by such impertinent Restrictions, to elude the Justice of the Court. 1 Vern. 33, 190, S. C.; 2 Chan. Ca. 147, S. C. (Vide Bonham v. Newcomb, infra, pi. 13.) 12. But if a'Man borrows Money of his Brother, and agrees to make him a Mortgage, and that if he has no Issue Male, his Brother should have the Land; such an Agree ment made out by Proof, may well be decreed in Equity. [Howard v. Harris,] 1 Vern. 193, per North, Lord Keeper. (Vide Bonham v. Newcomb, infra, pi. 13.) 13. A. in consideration of £1000 made an absolute Conveyance to B. of the Reversion of certain Lands after two Lives, which at that Time were worth little more; and by another Deed of the same Date, the Lands are made redeemable any Time during 1 EQ. CA. ABE. 313. MORTGAGES 1069 the Life of [313] the Grantor only, on Payment of the £1000 and Interest; A. died, not having paid the Money ; and it was held by my Lord Nottingham, that his Heir might redeem, notwithstanding this restrictive Clause ; and that it was a Rule, once a Mortgage and always a Mortgage, and that B. might have compelled A. to redeem in his Life-time, or to have foreclosed him ; but on a re-hearing, Lord Keep. North reversed the Decree on the Circumstances of this Case; for it appeared, by Proof, that A. had a Kindness for B. and that he had married his Kinswoman, which made it in the Nature of a Marriage-Settlement; he likewise held, that B. could not have compelled A. to redeem during his Life; which made it the more strong. 33 Gar. 2 [1681-82], Newcomb and Bonham, 1 Vern. 1, 214, S. C.; 232, S. C.; 2 Vent. 364, S. C., where it is said, that Lord North's Decree was affirmed in the House of Lords. (2 Freem. 67, S. C. and Decree says, it was thought hard by several at the Bar that the Heir should be permitted to redeem against the express Agreement of his Ancestor. Ibid...
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