tor. Thus in a case in which an estate had been conveyed by one Wareham to Sir Richard Grobham, and afterwards Sir Richard demised the lands to Wareham for seven years, at a rent of 2301., with a proviso, that if Wareham or his heir should within seven years be desirous to repurchase, and signify the same to Sir Richard, his heirs or assigns, and pay him or them 3000l., then he or they would assure the lands to Wareham. Subsequently to the decease of Sir Richard, Wareham made his election to repurchase, and the money was decreed to the heir of Sir Richard, in preference to his executors, on the ground that it was not the case of a mortgage, but a mere collateral agreement to repurchase (y). may It be further remarked, that the circumstance of an agreement to reconvey, although entered into at the time of conveyance, is not sufficient to convert the transaction into a mortgage, if there be evidence to rebut the presumption (*), and further that an estate redeemable may be rendered irredeemable by evidence of title, as where (a) copyholds were surrendered by way of mortgage, and by a second surrender the mortgagor limited them to himself for life, remainder to his wife for life, remainder to the mortgagee in fee. And although the words "subject to the trusts of the former surrender" were added, yet the court refused redemption, and con (y) Thornborough v. Baker, reported in 3 Swanston, 631. (z) Sabine v. Barrell, supra. (a) Perry v. Marston, 2 B. C. C. 397. sidered the words to mean," subject to the preceding life estates." If a renewable lease be assigned, by way of mortgage, an agreement between the landlord and the mortgagee releasing the right of renewal, without the concurrence of the mortgagor or his representatives, cannot be sustained (b). It scarcely need be noticed, that the mortgagor cannot under his covenant for further assurance on default in payment, be called upon to release his equity of redemption, and that he can under such covenant be required to confirm the mortgage only (c). (b) O'Reilley v. Fetherstone, 4 Bligh, N. S. 161. CHAPTER IV. OF THE NATURE OF AN EQUITY OF REDEMPTION, ITS RIGHTS AND INCIDENTS. THE right or equity of redemption being thus established, it is necessary to consider the nature of that right, against whom it lies, and its incidents or qualities. First, then, of the nature of an equity of redemption. It has been already shewn, that by the common law, the legal ownership of the land on the execution of the deed of mortgage, is transferred to the mortgagee, subject to be divested on performance of the condition, and that a mere right of reentry on performance of condition remains in the mortgagor, of which advantage may be taken by him or his heirs alone, being neither alienable nor devisable. These doctrines were at first attempted to be applied in equity to the right to redeem after condition broken, without reference to the principles, on which that right was founded, and accordingly in Roscarrick v. Barton (a), heard in Chancery the 21st of February, 23 and 24 Car. II., (a) Roscarrick v. Barton, 1 Ch. C. 217. an equity of redemption was said to be but a mere right; a right to a bill in equity, and not such an inheritance as could be entailed within the statute de donis; and even so late as in the case of Casborne v. Scarfe (b), heard before Lord Chancellor Hardwicke, in Hilary vacation, 1737, the like doctrine of the equity being a mere right was advanced and strongly pressed on the Court to rebut the claim of an husband as tenant by the curtesy. But equity adhering to the principle of the civil law, which considered the borrower the owner of the pledge until debarred by judicial sentence, and looking at the substance and not at the form of things (c), held the mortgagor, as in the civil law, the real owner of the land until decree of foreclosure, and possessed of it in his ancient and original right, and therefore Lord Hardwicke, in Casborne v. Scarfe (d), denied the argument, that the equity was but a right, and putting the question on sound principles, declared the equity to be an estate in the land, and the person entitled to it the real owner of the land, and the mortgage personal assets. An equity of redemption then is, in equity, the ancient estate in the land without change of ownership. Questions of great nicety formerly arose in reference to the persons on whom this equity of re (b) Casborne v. Scarfe, 1 Atk. 602. (c) Francis's Maxims, Max. 13. demption was binding, but which for the most part have now ceased to have any interest: Lord Hale described it to be, not merely a trust, but a title in equity, and to be inherent in the land, and binding on all persons, whether in the post or otherwise (e), and, although on the immediate establishment of the equity of redemption, ancient prejudices so far prevailed as to lead to a decision, that lands conveyed to a mortgagee in fee, became subject to his legal incumbrances, and to the dower of his wife (ƒ), and therefore, in order to prevent the latter, it was usual to convey the lands to two persons in joint tenancy, yet this misconception was soon remedied, and the rights of the parties put upon the proper footing. Notwithstanding, however, the strong opinion entertained by Lord Hale of the binding quality of this equity, great doubts once prevailed whether the redemption of a mortgage could be had against the king (g). And it was very recently decided (h) that a lord of a manor was not bound by the equity on an escheat, if notice of such equity did not appear on his court rolls, although in another case (i) it was held he was bound by the equity if on the rolls there was a reference to a deed giving notice of it, and that the mortgage money belonged to the personal representative of the mortgagee, and not to the lord. (e) Pawlett v. The Attorney-General, Hardw. 465. (f) Nash v. Preston, Cro. Car. 190; 1 Eq. Ca. Ab. 311; Co. Litt. 204, n. 1. (g) Pawlett v. The Attorney-General, supra. (h) Attorney-General v. The Duke of Leeds, 2 Mylne & Keen, 343. (i) Weaver v. Maule, 2 Russel & Mylne, 97. |