A NE W ABRIDGMENT OF THE LA W. By MATTHEW BACON, OF THE MIDDLE TEMPLE, ESQ. THE FIFTH EDITION, CORRECTED; WITH CONSIDERABLE ADDITIONS, OF THE MIDDLE TEMPLE, ESQ. BARRISTER at law. IN SEVEN VOLUMES. VOL. V. LONDON: PRINTED BY A. STRAHAN, LAW PRINTER TO THE KING'S MOST EXCELLENT MAJESTY; For T. Cadell, C. Dilly, G. G. and J. Robinson, J. Johnson, R. Baldwin, Mortgage. (A) Of the Original and several Kinds of Mortgages. (B) What fhall be deemed a Mortgage, or an Estate redeemable. (C) Of the Nature of a Mortgage, as to the distinct Interefts of the Mortgagor and Mortgagee. (D) Of the legal Performance of the Condition. (E) Of the Equity of Redemption and Foreclosure: And herein, 1. Who may redeem, and by whom the Mortgage Money fhall be paid. 2. To whom the Mortgage Money shall be paid. 3. Of the Precedency and Right of Redemption, where there are feveral Mortgagees or Incumbrancers: And herein of their Remedies against each other, as well as against the Mortgagor. 4 How far the Purchafing in a precedent Mortgage or Incumbrance will protect fuch Purchaser, and entitle him to a Precedency of Redemption. 5. Of the Equity which must be done by him, who would redeem, to the Perfon against whom a Redemption is prayed. 6. At what Time the Redemption must be. Of the Manner of Redeeming and Foreclofing. (F) Mortgagees and their Afsignees, how to account, and what Allowances to make. Carranz, (A) of the Original and feveral Kinds of Mortgages. HE notion of mongaging and redemption feems to be of Jeab extraction, and from the derived to the Greeks and Partars: the plan of the M lav conltitutes a just and equal agrarian, that the lands may continue in the fame tribes and families, and the people might not be diverted by any erstick ads and inventions from the extrate of agriculture, in which innoce it employment they were to be continually educated; and therefore whoever were compelled by want to tell, could tranf fer no ellate in the lands farther, than to the next general jubilee, which returned once in fifty years; wherefore they computed till the jubilee, and according to the distance from thence, fuch was the intereft that could be transferred to the buyer. But the vendor had power at any time to redeem, paying the value of the lands to the jubilee. But though he did not redeem at the year of jubilee, get the lands then came back again free to the vendor and his heirs. Julia 192. But our notion of mortgaging and redemption feems to have come more immediately from the civil law, and therefore it will be neceffary herein to consider the dini. Tions in that law between pledges and things hypothecated. Digeft lib. The pignus or pledge was, when any thing was obliged for money lent, and the pofferion patted to the creditor. The bypothera was, when the thing was obliged for money lent, and the poffeffion remained with the debtor. Now in cafe of goods pignorated, the creditor was obliged to the fame diligence in keeping them, as he uied about his own; fo that if the goods were lott by the negligence of the creditor, an action lay as for a depofit; for the property being transferred to the creditor for a particular purpofe, he was to keep them as his own. If the debtor did not redeem the thing pledged, the creditor was to foreciofe the redemption of the debtor; and if the money was not paid, the creditor had his adto pignoritia, or hypothecaria, which, when he had purfued, and obtained fentence thereon, he night fell the pledge as his own property. But there was this difference between the actis pigniritia and Lypothecaria; that the actio plenoritia was only on the perion of the debtor to foreclofe him, because the pignus was already in the poffeffion of the creditor; but the acis hypothecaria was tam in rem, quam in perfonam, and was given ad pignus projèquendum contra quemcunque poffefforem ; because herein the creditor had not the poffeflion of the pledge, but it remained to the debtor. Until fentence was obtained in thefe actions, the crediter could not obtain the property of the pledge; and if the money was paid before fentence, the pledge was fubject to redemption; and where the fame thing was pledged to feveral, thofe were faid to be potiores in pignore to whom the things were firft hypothecated. If the money was tendered or paid to the creditor, the contract 26. of pignoration was diffolved, and the debtor might have the pledge back, back, as a thing lent. This seems to have introduced the notion among us of the debtor's right to redemption. And with them the ufucaption, or the right of prefcription, did not extinguifh the pledge, unlefs a ftranger had held it for thirty years, or the debtor had held it for forty years. 268. In the feudal law the rule was, Feudalia, invito domino, aut ag- Corvin. natis, non relle fubjiciuntur hypotheca, quamvis fructus poffe effe, receptum eft. And the reafon of this rule was, because the feud was filled with a tenant from the lord's original bounty, on whom he depended for his perfonal fervice in war and peace; and therefore the feudiary could not obtrude a tenant on him without his leave, who might be lefs capable of thofe fervices; and as the tenant could not originally alien without licence, fo he could not mortgage. But, when a licence of alienation was given about the time of H. 3., and it became a maxim in law, that the purity of a feefimple imported a power of difpofing of it as the owner pleased; there were two ways of mortgaging lands introduced, which Littleton diftinguishes by the names of vadium vivum and vadium mortuum. Formulare, 136. The vadium vivum is, where a man borrows 100% of another, Co. Lit.205. and makes an eftate of lands to him, till he hath received the faid Vide Mas. fum of the iffues and profits of the lands; and it is called vadium vivum, because neither the money nor the land dieth; for the lands are conftantly paying off the money, and the lands are not left as a dead pledge, in cafe the money be not paid. This feems to have been the ancient way of pledging lands; for they held, that lands could not be hypothecated; and therefore they used to fubject the ufufructus, which continued originally during the life of the feudiary; but when there was a free liberty given of alienation, then the feudiary could pledge the ufufructus of the land at pleafure. But becaufe, in this way of pledging, the lender received his money by degrees, and in fmall parcels, which was very troublefome; and thofe that put money to ufury, are generally willing to receive the whole in a grofs fum; therefore this way of pledging is now out of use. The vadium mortuum is fo called by Littleton, because it is Lit. $333. doubtful, whether the feoffor will pay the money at the day limited Co.Lit.205. of not; and if he do not pay, then the land, which is but in pledge upon condition, for the payment of the money, is taken from him for ever, and fo dead to him; and if he do pay it, then the pledge is dead to the tenant of the land. Of thefe mortgages there are again two forts; 1, Of the free- Mad. 318, hold and inheritance; and 2dly, Of terms for years. 14, Of the freehold and inheritance; and here the ancient way was to make a charter of feoffment, on condition, that if the feoffor, or his heirs, paid the fum to the feoffee, or his heirs, he fhould re-enter and re-poffefs; and fometimes the condition was contained in the charter of feoffment, and fometimes it was defeazanced by another charter, as may be feen in the old forms. 319. |