indulge his caprice, and even malice, against the tenant, without any certain relief; but equity will not enforce a covenant embracing a hard bargain; and, at law, there can be no damages without an injury. Whether the words amount to a condition, or a limitation, or a covenant, may be matter of construction, depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy; though conditions and limitations are not readily to be raised by mere inference and argument. The distinc

tions on this subject are extremely subtle and artificial; and the construction of a deed, as to its operation and effect, will, after all, depend less upon artificial rules,

than upon the application of good sense and *133 *sound equity to the object and spirit of the contract in the given case. A tender of performance at the day will save a condition; and if the tender be refused, the land may be discharged, as in the case of a mortgage, while the debt remains.c

a

Best, Ch. J., in Doe v. Phillips, 9 Moore's Rep. 46. If words, both of covenant and condition, be used in the same instrument, both are allowed to operate. Bayley, J., in Doe v. Watt,

Barnw. & Cress. 308.

b Pembroke v. Berkley, Moore, 706. Cro. Eliz. 384. Argument of Pollexfen, in Carpenter v. Smith, Pollex. Rep. 70. The words usually employed in creating a condition are, upon condition; and this, says Lord Coke, is the most appropriate expression; or the words may be, so that; provided; if it shall happen, &c. The apt words of limitation are, while; so long as; until; during, &c. The words, provided always, may, under the circumstances, be taken as a condition, or as a limitation, and sometimes as a covenant. Litt. sec. 325-330. Co. Litt. 203, a. b. Mary Portington's case, 10 Co. 41, b. 42, a. Lord Cromwell's case, 2 Co. 69. Bacon's Abr. tit. Conditions, H.

c Litt. sec. 338. Co. Litt. 209, b. Jackson v. Crafts, 18 Johns. Rep. 110. Sweet v. Horn, 1 Adams' N. H. Rep. 32.

LECTURE LVIII.

ON THE LAW OF MORTGAGE.

A MORTGAGE is the conveyance of an estate, by way of pledge for the security of debt; and to become void on payment of it. The legal ownership is vested in the creditor; but, in equity, the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree.

There is no branch of the law of real property, which embraces a greater variety of important interests, or which is of more practical application. The different, and even conflicting views, which were taken of the subject, by the courts of law and of equity, have given an abstruse and shifting character to the doctrine of mortgages. But the liberal minds and enlarged policy of such judges as Hardwicke and Mansfield, gave expansion to principles, tested their soundness, dispersed anomalies, and assimilated the law of the different tribunals on this as well as on other heads of jurisprudence. The law of mortgage, under the process of forensic reasonings, has now become firmly established on the most rational foundations.

In the examination of so extensive a title, I shall endeavor to take a just and accurate, though it must necessarily be only a very general view of the subject, under the following heads:

I. Of the general nature of mortgages :

II. Of the mortgagor's estate and equity of redemption :

III. Of the estate and rights of the mortgagee:
IV. Of foreclosure.

I. Of the general nature of mortgages.

(1.) Different kinds of mortgages.

The English law of mortgages appears to have been borrowed, in a great degree, from the civil law; and the Roman hypotheca corresponds very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was entitled to his actio hypothecaria, to obtain possession of the pledge, when the debtor was in default; and the debtor had his action to regain possession, when the debt was paid, or satisfied out of the profits, and he might redeem at any time before a sale. The use of mortgages is founded on the wants and convenience of mankind, and would naturally follow the progress of order, civilization, and commerce. In the time of Glanville, the mortgage of lands, as security for a loan, was in use, though, during

a Mr. Butler is of opinion that mortgages were introduced less upon the model of the Roman pignus, or hypotheca, than upon the common law doctrine of conditions. But, upon a view of the Roman hypotheca, it is impossible to withhold our belief, that the English law of mortgages, taken in its most comprehensive sense, was essentially borrowed from the civil law. Thus, in the Roman law, the mortgage could be held as a security for further advances; (Code, 8. 27. 1,) and a covenant, that the mortgage should be forfeited absolutely on a default, was void. Code, 8. 35. 3. So, a mortgagor was entitled to due notice and opportunity to redeem, before his right was extinguished; and the pledge could not be sold, without a protracted notice, or a judicial decree. Code, 8. 28. 4. Ibid. 34. 3, sec. 1. The mortgagee was allowed to tack subsequent debts, in the case of the mortgagor seeking redemption, though this was not permitted to the extent of impairing the rights of intermediate encumbrancers. Dig. 20. 4. 3. Ibid. 20. 4. 20. Code, 8. 27. 1. See Story's Com. on Eq. Jurisprudence, vol. ii. 276, note. The analogy might be traced in other important particulars. See Pothier's Pandecta Justinianeæ, lib. 27, and Dict. du Digest, par Thevénot-Dessaules, tit. Hypotheque, passim. In Dr. Brown's View of the Civil Law, vol. i. 200-210, the general features of similitude between the Roman hypotheca and the English mortgage, are strongly delineated. In Burges' Comm. on Colonial and Foreign Laws, vol. ii. 164-246, there is a full and instructive view of the law of mortgages, under the Roman civil law, and the law of those modern nations which have adopted the civil law; and such a view gives us a profound impression of the wisdom, refinement, and justice of the property regulations of the Roman law.

*137

the feudal ages, it was doubtless under the same check as the more absolute alienation of the fee; and both the alienation and mortgage of land were permitted only with the concurrence *of the lord.a The English books distinguish between a vadium vivum and vadium mortuum. The first is when the creditor takes the estate to hold and enjoy it, without any limited time for redemption, and until he repays himself out of the rents and profits. In that case, the land surrives the debt; and, when the debt is discharged, the land, by right of reverter, returns to the original owner. In the other kind of mortgage the fee passed to the creditor, subject to the condition of being defeated, and the title of the debtor to be resumed, on his discharging the debt at the day limited for the payment; and if he did not, then the land was lost, and became dead to him for ever. This latter kind of mortgage is the one which is generally in use in this country. The Welsh mortgages, which are very frequently mentioned in the English books, though they have now entirely gone out of use, resembled the vivum vadium of Coke, or the mortuum vadium of Glanville; for though in them the rents and profits were a substitute for the interest, and the land was to be held until the mortgagor refunded the principal; yet, if the value of the rents and profits was excessive, equity would, notwithstanding any agreement to the contrary, decree an account.c

■ Glanville, lib. 10, c. 6.

permissione illius domini.

Nulli liceat feudum vendere vel pignorare sine
Feud. lib. 2, tit. 55.

Co. Litt. 205, a. 2 Blacks. Com. 157.

Fulthorpe ". Foster, 1 Vern. 476. The Welsh mortgage, under its strict contract, without any mitigation of its severity in equity, was analogous to the contract termed antichresis in the Roman law. Dig. 20. 1. 11. 1. It was likewise analogous to the mortgage of lands in the age of Glanville; and he gives to a mortgage, by which the creditor was to receive the rents and profits during the detention of the debt, without account, and without applying them to reduce it, the name of mortuum vadium. It was a hard and unconscientious, but a lawful contract; and Glanville, with primeval frankness

(2.) Of the pledge and mortgage of chattels. There is a material distinction also to be noticed between a pledge and a mortgage. A pledge, or pawn, is a deposit of goods redeemable on certain terms, and either with or without a fixed period for redemption. Delivery accompanies a pledge, and is essential to its validity. The general property does not pass, as in the case of a mortgage, and the pawnee has only a special property. If no time of redemption be fixed by the contract, the pawnor may redeem at any time; and though a day of payment be fixed, he may redeem after the day. He has his whole lifetime to redeem, provided the pawnee does not call upon him to redeem, as he has a right to do at any time, in his discretion, if no time for redemption be fixed; and if no such call be made, the representatives of the pawnor may redeem after his

and simplicity, does not scruple to condemn it as unjust, while he admits it to Glan. lib. 10, c. 6. 8. The French Code be lawful; injusta est et honesta. Civil, No. 2085, has adopted the Roman antichresis, with this mitigation, that the rents and profits are to be applied to keep down the interest, and the surplus, if any, to extinguish the principal. Under the Civil Code of Louisiana, taken from the Code Napoleon, there are two kinds of pledges, the pawn, when a moveable, is given as a security, and the antichresis when the Under the latter the security given consists in immoveables, or real estate. creditor acquires the right to take the rents and profits of the land, and to credit, annually, the same to the interest, and the surplus to the principal of the debt, and is bound to keep the estate in repair, and to pay the taxes. Upon default upon the part of the debtor, the creditor may prosecute the debtor, and obtain a decree for selling the land pledged. Civil Code, art. 3143-3148. Livingston v. Story, 11 Peters, 351. Judge Ruffin, in Poindexter v. M'Cannon, 1 Bad. & Dev. Eq. Cas. N. C. 377, speaks in indignant terms of the vadium vivum: "No mortgagee or mortgagor ever yet made a contract, upon which the possession was to change immediately, unless it were the veriest grinding bargain that could be driven with a distressed man, who had no way to turn."

In the Roman law, the pignus, pledge, or pawn, answered to a pledge of moveables in the common law, and possession was requisite. But the hypotheca answered to a mortgage of real estate, where the title to the thing might be acquired without possession. Inst. 4. 6. 7. Dig. 13. 7.35. Vide supra, vol. ii. 577.