Court of the United States; 11 Wendell's Reports of Cases Principal Cases in Edwards' Reports of Cases decided in the A Lecture on the Study of the Law; being an Introduction to a Course of Lectures on that subject, in the College of William and Mary, by Beverley Tucker, Professor of Law A Charge to the Grand Jury of the County of Suffolk, for the Commonwealth of Massachusetts, at the opening of the Muni- cipal Court of the City of Boston, on the First Monday of De- cember, A. D. 1834. By Peter Oxenbridge Thacher, Judge of Reports of Cases argued and determined in the English Courts of Common Law, with Tables of the Cases and Principal Mat- ters. Edited by the Hon. Thomas Sergeant, of the Supreme Court of Pennsylvania, Vol. XXIV. Containing Cases in the Court of King's Bench, in 1832 and 1833, and at Nisi Prius, in A Practical Summary of the Law of Assignments in Trust for AMERICAN JURIST. NO. XXV. JANUARY, 1835. ART. I.-ESSAY ON MORTGAGES. [The unpublished law papers of the late Chief Justice Parsons, consisting of essays on legal topics, opinions delivered as counsel, and also some judicial opinions, have been put into our hands, with the liberty to use them in the pages of the Jurist. We shall, from time to time, present our readers with such as appear to be of the most interest. We feel assured that the profession will be glad to see the remains - fragments though they may be of that great legal mind, which shed such a lustre on his own state, and influenced so strongly the jurisprudence of the whole country. The present essay is a sample of his writings relating to law, prepared with a view of assisting himself in his professional and judicial labors, and perhaps also, of publication. The appearance of distinct treatises on most of their subjects has lessened their value, as sources of instruction, though they cannot fail to be regarded as interesting illustrations of the legal talents and learning of their author. It is well known, however, that the law-jealous mistress as she is — held but a divided power over his studies. His papers on the Greek language and mathematics show a remarkable proficiency in both these difficult departments of learning. His acquisitions in these and in the law, at the same time, call to mind the similar attainments of Fearne; though the latter felt obliged, when he applied himself seriously to the study of the law, to give to the flames the Greek and mathematical books in which he had so much delighted; whereas, Chief Justice Parsons continued an active student of these during his most arduous judicial labors. It may be interesting to refresh the memory of the reader by the dates of Chief Justice Parsons' life. He was born 1750; made Chief Justice of Massachusetts May 26, 1806; died October 30, 1813. This essay will bring to mind one on the same subject by Judge Trowbridge, an able predecessor and instructer of Chief Justice Parsons, which is published in the supplement to the 8th vol. of Mass. Rep. EDS. JUR.] A MORTGAGE is a conveyance of land or other real estate on condition, that upon the payment of a sum of money or upon the performance of some contract or agreement the conveyance is to become void. This conveyance may be of an estate to hold in fee-simple, or for any less estate, and must be by deed acknowledged and recorded, unless it be for a term not exceeding seven years. He who makes the conveyance is called the mortgagor, and the person to whom the conveyance is made is called the mortgagee. The condition may be a part of the deed, or it may be indorsed on it, or it may be contained in a separate bill of defeasance executed at the same time with the deed. The deed may contain a provision, that until the condition be broken the mortgagor shall continue in possession and receive the profits without accounting for them to the mortgagee. Or the deed may provide, that the mortgagee shall not take or intermeddle with the profits until the condition be broken. But generally no provision is contained in the deed respecting the possession and profits, before the condition is broken. In the first case the mortgagor is a termor for years, and his term expires on the breach of the condition, the provision in the deed operating as a demise of the land to him until the condition be broken. In the second case the mortgagor is considered a tenant at will and not as termor. The provision in the deed does not operate as a demise, but it precludes the mortgagee from determining his will before the condition be broken. The effect, therefore, of the provision in this case, is as beneficial to the mortgagor, as the provision in the first case. In the third case, where there is no provision respecting the possession and profits, the mortgagor is said by Lord Mansfield to hold strictly at will, and as not having the privileges which tenants at will generally have: for he may be ejected without notice, and is not entitled to the emblements. Perhaps, he more nearly resembles a tenant at sufferance, who may be ejected without notice, who is not entitled to the emblements, and whom the mortgagee may consider as his tenant or as a disseizor at his election. The mortgagee may be defeated at law by performing or by tendering performance of the condition according to the tenor and effect of the deed. This is a right subsisting at law; and if the mortgagee be in the actual possession of the estate mortgaged at the time of the performance or tender, and will not restore the lands to the mortgagor, he may enter upon the mortgagee, and then bring his writ of entry, against him who after such entry is a disseizor. After the condition is broken the estate may be redeemed by making or tendering satisfaction of the mortgage at any time before the expiration of three years, after the mortgagee or his assignee shall have lawfully entered and obtained the actual possession of the estate mortgaged for the condition broken. The right to redeem the mortgage, after the condition is broken, is called the equity of redemption: although for some purposes the right to perform the condition at law, is considered. also as an equity of redemption. When satisfaction of the mortgage is made or tendered after the condition is broken, and the mortgagee shall refuse to restore the possession, the mortgagor or his assignee cannot enter, and afterwards bring his writ of entry, but as the right to redeem after the condition is broken is in equity and not at law, so the remedy is by a bill in equity and not by an action at law. If satisfaction of the mortgage shall not be made or tendered before the expiration of the three years, after the mortgagee or his assigns shall have lawfully entered and obtained the actual possession of the estate mortgaged for the condition broken, then the right in equity to redeem is lost; and the mortgagee or his assigns shall hold the estate absolutely, and discharged of the condition. On this event the equity of redemption is foreclosed, and the mortgagor or his assigns have no longer any interest at law or in equity to the estate mortgaged. As the most usual mortgages in this state are mortgages in fee-simple conditioned to be void on the payment of a sum of money by a certain day, without any provision respecting the actual possession or the profits, before the condition shall be broken, this kind of mortgage will be the principal subject of the following observations. Of the Title of the Mortgagee. Immediately after the execution of the mortgage deed, in which are contained no agreements respecting the possession or profits, the mortgagee is seized of the estate in fee-simple subject to have his estate defeated, by the performance of the condition or the satisfaction of the mortgage, and he is called by Littleton, tenant in mortgage; and until the mortgage be satisfied he has all the rights and powers incident to an estate in fee-simple absolute. Therefore the mortgagee may at any time take possession of the mortgaged estate by a peaceable entry, or he may elect to consider the mortgagor and all in possession claiming under him as disseizors and recover the possession by action at law. But as to all strangers who intermeddle with the estate, not claiming under the mortgagor, the mortgagee is considered as a tenant in fee-simple absolute, because no person but the mortgagor or he who claims under him, can avail himself of the condition. The mortgagee seldom takes possession before the condition is broken, unless to prevent waste or unless the interest be not paid. In either of these cases it is reasonable, that the mortgagee should exercise his right of taking possession. By the waste the estate might be so reduced in value as not to be a pledge adequate to the debt; or by suffering the interest to accumulate, the principal and interest might exceed the value of the estate mortgaged. |