intimated) deemed to be terms in gross. And courts of equity, when they hold terms for years to be attendant upon the inheritance, always do so by affecting the person, holding the term, with a trust for that purpose, either upon the express declaration of the parties, or by implication of law. If the term is made attendant upon the inheritance by express declaration, it is immaterial whether the term, if it were in the same hands with the inheritance, would or would not have merged; or whether it be subject to some ulterior limitation, to which the inheritance is not subject; for the express declaration will be sufficient to make it attendant upon the inheritance. But, if the term is to be made attendant upon the inheritance by implication of law, then it is necessary that it should not be subject to any other limitation, and that the owner of the inheritance should be entitled to the whole trust in the term.2 The general rule is, that where the same person has the inheritance and the term in himself, although he has in one the equitable interest, and in the other the legal interest, there the inheritance by implication draws to itself the term, and makes that attendant upon it. For, as at law, if the legal estate in the term and in the inheritance come into the same hand, the term is merged, and the estate goes to the heir; so in equity, where the one estate is equitable, and the other legal, it is in the nature of a merger; and the trust of the term will follow the inheritance.3 § 1002. But, although a term may be so attendant upon the inheritance; yet, as the legal estate in it remains distinct and separate from the inheritance at law, it may at any time be disannexed therefrom by the proper acts of the parties in interest, and be turned into a term in gross at law. And a term so attendant becomes a term in gross, when it fails of a freehold to support it, or it is divided from the inheritance by different limitations from those of the latter. In many cases, the distinction between 1 Willoughby v. Willoughby, 1 Term Rep. 765; Scott v. Fenhoullet, 1 Bro. Ch. 69, 70. 22 Fonbl. Eq. B. 2, ch. 4, § 3, note (1); Scott r. Fenhoullet, 1 Bro. Ch. 70, and Mr. Belt's notes. If there be a substantial intervening interest in a third person, there the term will not by implication or without an express declaration be attendant upon the inheritance. Scott v. Fenhoullet, 1 Bro. Ch. 69, 70, and Mr. Belt's notes. Sugden on Vendors, ch. 9, § 2, art. 6, p. 455 to 459 (7th edit.); id. p. 521 to 525 (9th edit.). 3 Capel v. Girdler, 9 Ves. 510; Best v. Stamford, 2 Freem. 288; s. c. Prec. Ch. 252; Sugden on Vendors, ch. 9, § 2, art. 6, p. 455 to 459 (7th edit.); id. p. 521 to 525 (9th edit.); Whitchurch v. Whitchurch, 2 P. Will. 336; Sidney v. Shelly, 19 Ves. 352; Kelly v. Power, 2 Ball & Beatt. 253. 42 Fonbl. Eq. B. 2, ch. 4, § 3, and notes (i), (l); Willoughby v. Willoughby, 1 T. R. 765, 770. terms in gross and terms attendant upon the inheritance, is highly important; the former being generally treated as mere personalty; the latter, as partaking of the realty, and following the fate of the inheritance. Thus, for example, a term attendant upon the inheri tance will not pass by a will not executed, so as to pass real estate under the statute of frauds. So, such a term is real assets in the hands of the heir; for the statute of frauds having made a trust ⚫in fee assets in the hands of the heir, the term, which follows the inheritance, and is subject to all the charges which would affect the inheritance, must also be real assets.1 On the contrary, a term in gross is personal assets only.2 § 1003. It would lead us too far from the immediate object of these commentaries to go at large into all the doctrines of courts of equity in regard to terms for years, created upon special trusts. It may be remarked, however, that where such terms are created to raise portions for children upon marriage settlements, and the settler also personally covenants to pay such portions, the real estate is considered as the primary fund, and the personal estate of the covenantor as auxiliary only. If there be no such personal covenant for the payment of the portions, but only a covenant to settle lands, and to raise a term of years out of the lands for securing the portions, in such a case, even although there be a bond to perform the covenant, the portions are not in any event payable out of his personal estate.1 31 Mad. Pr. Ch. 327, 398; Lechmere v. Charlton, 15 Ves. 197, 198; ante, § 574, 575; post, § 1248, 1249. 4 1 Mad. Pr. Ch. 327, 398; Edwards . Freeman, 2 P. Will. 437, 438. Very intricate questions have arisen, as to the time when portions are to be raised by trustees for the benefit of children, especially upon reversionary interests. Upon this subject I cannot do better than to quote a passage from the learned commentaries of Mr. Chancellor Kent. [4 Kent, Comm. Lect. 58, p. 148 to 150, 3d edit.] "A very vexatious question has been agitated, and has distressed the English courts, from the early case of Graves . Mattison, down to the recent decision in Wyn ter v. Bold, as to the time at which money provided for children's portions may be raised by sale or mortgage of a reversionary term. The history of the question is worthy of a moment's attention, as a legal curiosity, and a sample of the perplexity and uncertainty with which complicated settlements 'rolled in tangles,' and subtle disputation, and eternal doubts, will insensibly encumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be that which would be most beneficial to those for whom the portions were provided. If the term for providing portions ceases to be contingent, and becomes a vested remainder in trustees, to raise portions out of the rents and profits after the death of the parents, and payable to the daughters coming of age, or marriage, a court of CHAPTER XXVII. MORTGAGES. [§ 1004. The general definition of mortgages. 1005-1011. The germ of common-law mortgages in the civil law. § 1012. At common law the mortgagor was subjected to hardships. § 1013. In equity a mortgage, even after forfeiture, is a security. § 1014. The equitable doctrine of mortgages long in maturing. § 1015. In equity the mortgagor is treated as the owner of the land. § 1016. The mortgagee's interest is merely that of a security. § 1016 a. If he take possession, is accountable for rents and profits. § 1016 a and note. The mode of applying rents and profits. § 1016 b. Is entitled to compensation for necessary repairs. § 1016, 1016 b. Both mortgagor and mortgagee may be enjoined from waste. $ 1016 c. The purchaser may insist upon keeping encumbrances on foot. § 1016 d. The purchaser of an equity of redemption compelled to respond to the mortgagee. § 1017. The mortgagor holds as owner, but may not commit waste. § 1018. The essential quality to create a mortgage is a debt. § 1018 a. Mortgage may be released by surrender of defeasance. § 1018 b. Where the facts are doubtful, courts incline to treat conditional deeds as mortgages. § 1018 c. No stipulation will defeat mortgagor's equity. § 1018 d. The assignee takes it subject to all equities. § 1018 e. Effect of payment of the debt upon the title. § 1019. The equity of redemption not barred by express agreement. § 1020, 1020 a. Equitable mortgages created by deposit of title-deeds. § 1021. All vested estates may be mortgaged. § 1021 a. Subsequent title acquired by mortgagor enures to the benefit of mortgagee. equity has allowed a portion to be raised by sale or mortgage in the lifetime of the parents, subject, nevertheless, to the lifeestate. The parent's death is anticipated, in order to make provision for the children. The result of the very protracted series of these discussions for one hundred and fifty years is, that if an estate be settled to the use of the father for life, remainder to the mother for life, remainder to the sons of the marriage in strict settlement, and, in default of such issue, with remainder to trustees to raise portions, and the mother dies without male issue and leaves issue female, the term is vested in remainder in the trustees; and they may sell or mortgage such a reversionary term, in the lifetime of the sur viving parent, for the purpose of raising the portions; unless the contingencies, on which the portions were to become vested, had not happened, or there was a manifest intent that the term should not be sold or mortgaged in the lifetime of the parents, nor until it had become vested in the trustees in possession. The inclination of the Court of Chancery has been against raising portions out of reversionary terms by sale or mortgage, in the lifetime of the parent, as leading to a sacrifice of the interests of the person in reversion or remainder. And modern settlements usually contain a prohibitory clause against it." Post, § 1248, 1249. [See 1 Perry on Trusts, § 346–356.] § 1022. How far one having a power to sell may mortgage. § 1023 All persons having a vested interest may redeem. § 1023 a, 1023 b. Effect of mortgage to secure future advances. § 1023 c. Subject further discussed. § 1023 d. Notice required of subsequent encumbrances. § 1023 e. Discharge of mortgage and reconveyance. § 1024. The mortgagee's remedy by the civil law. § 1025. The sale of the premises the more equitable remedy. § 1026. English remedy foreclosure, unless in special cases. § 1027. This has led to the insertion of powers of sale. § 1027 a. Such powers construed favorably. § 1028. On bills to redeem, sometimes marshal securities. § 1028 a. Right to redeem barred in twenty years. § 1028 b. So also of the right of the mortgagee to foreclose. § 1030. Difference between a mortgage and pledge of personal estate. § 1031. Equity of redemption in chattels foreclosed by sale. § 1032. Bill to redeem not proper in cases of pledge. § 1033. Foreclosure in equity the effectual remedy for the pledgee. § 1034. Subsequent advances presumed to be a lien on the pledge. § 1035. This rule in analogy to that of the civil law. § 1035 a. Prior equities acquired, by notice, or purchase of legal title. § 1035 b. How the interest of mortgagor or lessor of personalty is liable to execution. § 1035 c. Mortgage extinguished by payment of debt, &c. § 1035 d. Mortgage paid cannot be made security for further advance; but if so agreed, equity will not interfere. § 1035 e. How mortgage of personalty is waived or extinguished. § 1035 f. The mortgagee may accept from a part-owner of the equity of redemption his proportion of the mortgage debt. § 1035 g. Enumeration of other cases and points decided. § 1004. In the next place as to MORTGAGES. It is wholly unnecessary to enter into a minute examination of the origin and history of this well-known and universally received security in the countries governed by the common law. During the existence of the system of feudal tenures in its full rigor, mortgages could have had no existence in English jurisprudence, as they were incompatible with the leading objects of that system. The maxim of the feudal law was "Feudalia, invito domino, aut agnatis, non recte subjiciuntur hypothecæ, quamvis fructus, posse esse, receptum est."2 But, as soon as the general right of alienation of real property was admitted, the necessities of the people almost immediately led to the introduction of mortgages.3 Littleton has enumerated two sorts, which were distinguished by the names of vadium vivum, and vadium mortuum. 1 Glanville, Lib. 10, cap. 6. The latter was, in the com 82 Fonbl. Eq. B. 3, ch. 1, § 1, and note 2 Bac. Abridg. Mortgage, A.; 2 Fonbl. (a); Bac. Abridg. Mortgage, A. Eq. B. 3, ch. 1, § 1, note (a). Litt. § 327, 332; Co. Litt. 202 6, 205 a. mon law, called a mortgage, from two French words, mort (mortuum, or dead), and gage (vadium pignus, or pledge), because if not redeemed at the stipulated time, it was dead to the debtor.1 The former was called simply a living pledge, in contradistinction to the latter, for the reason given by Lord Coke. "Vivum autem dicitur vadium, quia nunquam moritur ex aliquâ parte, quod ex suis proventubus acquiratur."2 Thus, if a man borrowed £100 of another, and made over an estate of lands to him, until he received the same sum out of the issues and profits of the land, it was called a vivum vadium; for neither the money nor the land dieth or is lost. But, if a feoffment was made of land, upon condition that, if the feoffor paid to the feoffee the sum of £100 on a certain day, he might re-enter on the land; there, if he did not pay the sum at the day, he could not, at the common law, afterwards re-enter; but (as Littleton said) the land was taken away from him for ever, and so dead to him. And, if he did pay at the day, then the pledge was dead as to the feoffee; and, therefore, the feoffee was called tenant in mortgage, the estate being mortuum vadium.3 § 1005. It has been generally supposed, that the notion of mortgages, and of the redemption thereof, in the English law, was borrowed from the Roman law, although Mr. Butler contends that they were strictly founded on the common-law doctrine of conditions. Whatever truth there may be in this latter observation, as to the origin of mortgages of lands in the English law, there is no doubt that the notion of the equity of redemption was derived from the Roman law, and that it is purely the creature of courts of equity. In the Roman law there were two sorts of transfers of property, as security for debts; namely, the pignus and the hypotheca. The pignus, or pledge, was when any thing was pledged as a security for money lent, and the possession thereof was passed to the creditor, upon the condition of returning it to the owner when the debt was paid. The hypotheca was, when the 1 Glanville seems to give a somewhat different explanation. Mortuum vadium dicitur illud, cujus fructus vel reditus interim percepti in nullo se acquietant. Glanv. Lib. 10, cap. 6; 4 Kent, Comm. Lect. 58, p. 136, 137 (3d edit.), and note (6). 2 Co. Litt. 205 a. this opinion of Mr. Butler is certainly entitled to great consideration; for Littleton expressly puts mortgages as estates on condition. In respect to mortgages and pledges of personal property, there may have beer originally a distinction, borrowed from the civil law. Glanville, Lib. 10, cap. 6. Courts of equity, in a * Littleton, § 332; Co. Litt. 205 a; 2 great variety of cases of both sorts, act Black. Comm. 157. In respect to mortgages of lands, upon the principles of the civil law. |