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cantile securities, and a few other instances, it does-2 Rob. Pr. (2nd ed.) 222 & seq. 77 & seq), because it can only be good as an executory contract; and neither law nor equity will enforce an executory contract, unless it be sustained by a valuable consideration. (2 Rob. Pr. (2nd ed.), 257 & seq; Bk. of Marietta v. Pindall, 2 Rand. 475-6; Wood's Adm'r v. Duval, 9 Leigh, 10; 2 Stor. Eq. § 1040 b; Row v. Dawson, 2 Wh. & Tud. L. Cas. 231 & seq.) But see contra as to the need of a valuable consideration, (Elam v. Keen, 4 Leigh, 333.)

The assignee of a mortgage, or other chose in action (not a mercantile security), taking, as he does in general, only an equitable interest, takes it ordinarily, subject to all the equities which the debtor has, or may acquire against the assignor before he has notice of the assignment, or as it is sometimes expressed, the assignee cannot be in a better condition than the assignor. Nor does it affect the application of this principle that the assignment is for value, and without notice, nor that after assignment the debtor acknowledged the demand to be just. (2 Stor. Eq. § 1047; Row v. Dawson, 2 Wh. & Tud. L. Cas. (Pt. II), 215-'16, 233 & seq; V. C. c. 144, § 14; Norton v. Rose, 2 Wash. 233; Pickett v. Morris, Id. 255; Mayo v. Giles' Adm'r, 1 Munf. 533; Stockton v. Cook, 3 Munf. 68; Broaddus & al v. Rosson & ux, 3 Leigh, 12; Moore & al v. Holcombe & al, 3 Leigh, 597; Bank of Washington v. Arthur, &c., 3 Grat. 173; Davis v. Miller, &c., 14 Grat. 13.)

But whilst no acknowledgment made after assignment will preclude the debtor from proving, if he can, any equity against the assignor, acquired before he had notice of the assignment, he will be estopped from setting up any equity or defence, however well founded originally, if by his assurance made beforehand, he has induced the assignee to acquire the debt. (Feazle v. Dillard, & al, 5 Leigh, 39; Jennings v. Pettit, &c., 2 Rob. 676; Bk. of Washington v. Arthur, &c. 3 Grat. 173.)

It should be observed, that whilst the assignee has only an equitable interest which originally was protected and enforced in a court of equity alone, yet as in process of time a plain and unobstructed remedy at law exists, either in the name of the assignor, or by statute in Virginia in some cases, in the name of the assignee, a resort to equity has long been discouraged, unless some substantial and extraordinary reason for its jurisdiction can be alleged; and this policy is now peremptorily enjoined with us by statute, "unless it appear that the

plaintiff had not an adequate remedy at law." (Moseley v. Boush, 4 Rand. 392; V. C. 1873, c. 141, § 19.)

It has been already remarked that a release of the debt will discharge the mortgage which secures it. As to the form of the release, the doctrine at common law was that wherever the obligation was under seal, the release must be by act as solemn, that is, under seal, in pursuance of the maxim eodem modo quo oritur eodem modo dissolvitur. If the promise were not under seal, it seems that it was only necessary to have a valuable consideration. But this safe and convenient doctrine is much shaken by the later American adjudications. However, it would be prudent to have the release always under seal. (Blake's Case, 6 Co. 44 a; Bac. Abr. Release (A), 1; Fowell v. Forrest, 2 Wms. Saund. 47 s, n (1); Rogers v. Payne, 2 Wils. 376. See Martyn v. Mowlin, 2 Burr, 978; 1 Lom. Dig. 441-22.)

45. By whom Mortgage-money is Payable.

The premises mortgaged are a pledge for a debt, which is constituted by the mortgage itself. If there be a covenant in the mortgage-deed, or a collateral bond for the payment of the money, it is a specialty-debt; otherwise a simple-contract debt. Hence, in either case, the mortgagee is a creditor of the mortgagor, and is entitled to be paid out of the personal assets of the mortgagor, as well as out of the mortgaged estate. (1 Lom. Dig. 460.)

As long as the mortgagor survives, no question arises; but upon his death it becomes an interesting enquiry whether the debt (which the creditor may charge on either fund), shall ultimately be a burden on the mortgaged subject, or on the general personal estate of the debtor. The general principle in equity is, that the fund which received the benefit shall make satisfaction, and as for the most part, the personal estate was increased by the money secured, so the personal estate shall be first applied towards the payment of the mortgage. Hence, the personal representative of a mortgagor is, in general, compellable to redeem a mortgage for the benefit of the heir, and a fortiori for the benefit of the devisee. This principle is well illustrated by the case of Dandridge v. Minge, 4 Rand. 397. In that case the heir and distributee of the mortgagor was a feme covert, and it was held that it was the duty of the personal representative of the mortgagor, to apply the personal assets to redeem the land for the benefit of the married woman and her heirs, and that no arrangement between such representative and the husband would justify the diversion of the assets from that object, because in such case, she loses

her real estate, unless the husband shall think fit to pay the debt, and he holds the personal assets, divested of any claim on the part of her and her heirs. (1 Stor. Eq. § 571; 1 Lom. Dig. 461.)

This, the natural order, may, of course, be reversed at the pleasure of the decedent, who may exonerate his personal estate, and charge his debts, one and all, first on the real estate, although such an intent must be clearly manifested, which is not sufficiently done by directing his debts to be paid out of his lands, because he may have designed by that to create only an auxiliary fund. He must not only charge his real, but must exempt his personal property. Such an exemption is effected, not, indeed, as against the creditor, but as against the real representative of the testator, by the specific gift of a chattel in his will. (1 Lom. Dig: 462-465; Foster & ux v. Crenshaw's ex'ors, 3 Munf. 514; McCloud v. Roberts & al, 4 H. & M. 444; Ryder v. Wager, 2 P. Wms. 329, 335; Aldrich v. Cooper, 8 Ves. 382; S. C. 2 Wh. & Tud. (Pt. I), 175; Ancaster v. Mayer, 1 Bro. C. C. 454; S. C. 1 Wh. & Tud. 432, &c., 446-'7, 451, &c.)

Where the mortgage debt was not originally contracted by the decedent, but the lands came to him by purchase or descent, subject to the mortgage, as the reason for the doctrine above stated no longer exists, the doctrine itself is not applicable. The mortgaged estate is the primary fund for the payment of the debt, and the personal estate, if liable at all, is merely auxiliary. And so it is a fortiori, where one purchases an equity of redemption, unless, indeed, by unequivocal acts, he adopts the mortgage-debt as his own (1 Lom. Dig. 466, 469-'70; Ancaster v. Mayer, 1 Wh. & Tud. 447-'8, 454; Daniel v. Leitch, 13 Grat. 207.)

Where an estate under mortgage is vested in a person for life, with remainder to another in fee, the tenant for life will be obliged to pay the annual interest, but he cannot be compelled to contribute towards the payment of the principal where the mortgage is not foreclosed in the life-time of the tenant for life. When there is a forclosure in the life-time of the tenant for life, the rule formerly was that the tenant for life should always pay one-third, and the remainderman two-thirds of the money. This, however, has been substituted by a more equitable procedure, based upon the fact that it is the duty of the tenant for life to keep down the interest during his life. This, together with the life-tenant's expectation of life, derived from the tables of mortality, furnishes a

basis of computation, as has been fully explained in connection with the subject of dower. (1 Lom. Dig. 476 ; Wilson v. Davisson, 2 Rob. 384; Ante p. 123-24, 3m, & note, (*).

Payments made generally on a mortgage, without designating how they are to be applied, are in general to be appropriated first to extinguish any interest which may be in arrear, that being the recompense to the creditor for the damage sustained by the debtor's default; and it has been said that this application, which is undoubtedly just, cannot be altered even by consent of the parties. This, however, can scarcely be reconciled with principle. The debtor who makes a voluntary payment can always direct its application, if he thinks fit so to do, since, if his wishes are not indulged, he may forbear to pay. If, therefore, the debtor shall insist at the time that a voluntary payment made by him shall go to the principal and not to the interest, if the creditor accepts the money on those terms, he must comply with the conditions. This is, indeed, only a branch of the doctrine of the application of payments generally, which may be thus summed up. Where several debts are embraced by the parties in one statement, general payments unappropriated by the debtor at the time of making them are to be applied to the demands, in the order of priority as they stand in the statement. Where the demands are several and distinct, payments unappropriated by the debtor at the time are to be applied, not with a view to the particular advantage of either party, but according to the justice of each individual case. (Pindall's Ex'x v. Bank of Marietta, 10 Leigh, 484; Miller v. Trevillian, &c. 2 Rob. 27; Field v. Holland, 6 Cr. 27; Smith v. Lloyd, 11 Leigh, 516; Ross' ex'ors v. McLaughlin's Adm'r, 7 Grat. 86.)

Finally, if the condition be performed by payment within the terms stipulated in the condition, then the land returns to the mortgagor, without any re-conveyance, by the simple effect of the condition; but if there be a default to pay within the precise terms stipulated, whereby the estate becomes at law absolute in the mortgagee, a re-conveyance of the legal estate will be necessary upon subsequently discharging the debt; although, to be sure, after the lapse of a considerable time, say twenty years, the mortgagor remaining in uninterrupted possession, a re-conveyance may reasonably be presumed. And meanwhile, in Virginia, by statute, the mortgagor may defend himself even at law against an action of ejectment, by showing that he has discharged the incum

brance, and is entitled in equity to have the premises reconveyed. (1 Lom. Dig. 492; Faulkner v. Brockenbrough, 4 Rand. 245; 4 Kent's Com. 193-'4; V. C. 1873, c. 131, § 21, 22.)

CHAPTER XI.

OF ESTATES IN POSSESSION AND IN EXPECTANCY.

36. The Time of Enjoyment of Estates.

All estates in lands and tenements consist of such as are, (1), In possession; or (2), In expectancy;

W. C.

1o. Estates in Possession.

Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory), there is little or nothing peculiar to be observed. All the estates hitherto spoken of are of this kind; for in laying down general rules we usually apply them to such estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the most abstruse learning in the law. (2 Bl. Com. 163.)

2o. Estates in Expectancy.

Of estates in expectancy there are three sorts; two very well. known to the common law, namely, remainders and reversions, and one called executory limitations, originating in those statutes whereby estates of freehold may be created without actual livery of seisin; that is, the statute of uses (27 Hen. VIII, c. 10; V. C. 1873, c. 112, § 14), the statute of wills, (32 Hen. VIII, c. 1, explained by 34 Hen. VIII, c. 5; V. C. 1873, c. 118, § 2 to 5), and the statute of grants (8 & 9 Vict. c. 106; V. C. 1873, c. 112, § 4.)

At common law no estate of freehold in lands could be created to commence in futuro, otherwise than by way of remainder or reversion, because no such freehold could pass without livery of seisin; which, from its nature, must operate immediately, or not at all; and because, moreover, if the livery operated to divest the freehold out of the grantor, (as it must do, if it operated at all), the freehold would be in abeyance before the time came for it to vest in the grantee, which would have been fraught with these serious mischiefs: 1st, That the superior lord would not have known on whom he was to call for the military services due for the feud;

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