[by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant (a). But if the condition be precedent or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee; here, the void condition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant; for he hath no estate until the condition be performed (b).]

On the other hand, even where the condition is valid and capable of being enforced, it is also capable of being waived by the grantor at his pleasure (c); and as the law always leans against forfeitures (d), it will consider him as having waived his right to enter for breach of a condition. subsequent, if, after notice of the breach committed, he does any act inconsistent with an intention to avail himself of the forfeiture. Thus, if a lease be made with a proviso that, in the event of the lessee's assigning his interest, the lessor shall be at liberty to enter on the land demised, as of his former estate; he will nevertheless not be entitled to enter, if, after an assignment made, he accepts rent from the assignee (e).

(a) Co. Litt. 206 a; Mary Portington's case, 10 Rep. 42; see judgment of Parke, B., in Doe v. Eyre, 5 C. B. 744.

(b) Co. Litt. 206 a. See Shrewsbury v. Scott, 6 C. B. (N. S.) 179.

(c) Co. Litt. 218 a. By 23 & 24 Vict. c. 38, s. 6, where any actual waiver of the benefit of any covenant or condition in a lease is proved to have taken place in a particular instance, it shall not be assumed to extend to any breach other than that to which such waiver specially relates, nor to be a general waiver of the benefit of such covenant or condition, unless an intention to that effect shall appear.

(d) Co. Litt. 206 b; Clay v. Bowler, 5 Ad. & El. 403, n.

(e) See Co. Litt. 211 b; Doe d. Nash v. Birch, 1 Mee. & W. 402; Doe v. Lewis, 5 Ad. & Ell. 277; Hartshorne v. Watson, 4 Bing. N. C. 178; Doe v. Rees, ib. 384. As to forfeiture or right of entry for breach of condition or covenant in a lease relating to not assigning (or doing other act) without licence, or for breach of condition or covenant relative to the payment of rent, or the insurance of the premises, see 15 & 16 Vict. c. 76, s. 210; 22 & 23 Vict. c. 35, ss. 1-3, 4-9; 23 & 24 Vict. c. 126, ss. 1, 2.

There are some estates defeasible upon condition subsequent, that require a more particular notice. Such are,

III. [Estates held in vadio, in gage, or pledge: which are of two kinds, vivum vadium, or living pledge; and mortuum vadium, dead pledge, or mortgage.

Vivum vadium, or living pledge,] a term rarely or never occurring in practice, [is when a man borrows a sum (suppose 2001.) of another; and grants him an estate, as of 201. per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living: it subsists, and survives the debt; and, immediately on the discharge of that, results back to the borrower (f). But mortuum vadium, a dead pledge, or mortgage (which is much more common than the other), is where a man borrows of another a specific sum (e. g., 2004.), and grants him an estate on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 2001.] or, as is more usual, the said sum of 2007., with interest at such a rate, [on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge; or, as is now the more usual way, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land, which is so put in pledge, is by law, in case of nonpayment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute: but so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage (g).]

(f) Co. Litt. 205 a; see Fenwick v. Reed, 1 Meriv. 119. As to mort. gage of a personal chattel, see Flory v. Denny, 7 Exch. 581.

(g) Litt. s. 332. It may be ob

served that a mere deposit of titledeeds without conveyance will amount to a mortgage in contemplation of a court of equity. (See Russell v. Russell, 1 Bro. C. C. 269.)

As soon as the estate is created, the mortgagee, in the absence of any stipulation to the contrary, might immediately enter on the lands, but would be bound to restore them upon performance of the condition by payment of the mortgage-money at the day limited: and therefore it is usual to insert a provision that the mortgagor shall hold the land till the day assigned for payment; but in case of failure to pay at that period, the mortgagee is then entitled to enter and take possession, without any possibility at the common law of being afterwards evicted by the mortgagor (h). The mortgagee, however, is not permitted to avail himself of the forfeiture, to any extent beyond what is necessary for the satisfaction of his reasonable claims. For here [the courts of equity interpose; and though a mortgage be thus forfeited, and the estate absolutely vested in the mortgagee at the common law, yet they will allow the mortgagor to recall or redeem his estate, paying to the mortgagee his principal, interest and expenses (i); for otherwise, in strictness of law, an estate worth 1000l. might be forfeited for non-payment of 100l. or a less sum.] It is, however, provided by a statute of modern date, 3 & 4 Will. IV. c. 27, s. 28, that the mortgagor shall not be entitled to redeem but within twenty years next after the time that the mortgagee shall obtain possession; unless in the mean time an acknowledgment in writing shall have been given by the mortgagee of the right of the mortgagor, in which case

(h) See Doe v. Giles, 5 Bing. 421; Doe v. Cadwallader, 2 Barn. & Adol. 473; Thunder v. Belcher, 3 East, 449; Doe v. Maisey, 8 Barn. & Cress. 767; Partington v. Woodcock, 6 Ad. & El. 695. It is supposed in the text that there is no tenant in possession, under a lease prior to the mortgage. If there be, his possession cannot of course be disturbed; but he may be compelled to pay over his rents to the mortgagee. If there be a tenant in possession under a lease granted by the

mortgagor subsequently to the mortgage, and without the privity of the mortgagee, he may be ejected. See the cases above cited.

(i) But if the money be not repaid by the day assigned, and the mortgagee has neither demanded, nor taken any steps to compel, payment, he is entitled to receive six calendar months' notice in writing before the mortgage can be paid off. See Shrapnell v. Blake, Eq. Ca. Ab. in tit. Mortgage, pl. 34.

the power of redemption is limited to a period of twenty years from such acknowledgment. And, in favour of a mortgagee who has not obtained possession, it is enacted by 7 Will. IV. & 1 Vict. c. 28, that it shall be lawful for any person, entitled to or claiming under any mortgage of land, being land within the meaning of 3 & 4 Will. IV. c. 27, to make an entry or bring an action at law or suit in equity to recover the same, (although more than twenty years may have elapsed since his right so to do shall have first accrued,) within twenty years next after the last payment of any part of the principal or interest secured by such mortgage (1).

The reasonable advantage above referred to, [allowed to mortgagors, is called the equity of redemption (n);] and the mortgagor may avail himself of it by filing a "bill to redeem" (as it is called) in a court of equity. If the mortgagee be not in possession, the bill merely calls upon him for a reconveyance (m), on payment of principal, interest, and costs of suit: but as against a mortgagee who has obtained possession, such a bill prays that an account may be taken of all the rents and profits on the one hand, and of the principal, interest, and costs on the other; and that, on payment of what may appear due on such account, a reconveyance may be made, and the possession of the premises restored (n). [On the other hand,

(1) See Doe d. Palmer v. Eyre, 17 Q. B. 366.

(m) In certain cases of accidental or formal difficulty in obtaining a reconveyance, (as where the mortgagee has died intestate and without an heir,) the Court of Chancery is empowered to make an order having the effect of a reconveyance. See 13 & 14 Vict. c. 60, for consolidating and amending the laws relating to the conveyance and transfer of real and personal property, vested in mortgagees and trustees.

(n) It may be here incidentally

observed that, during the continuance of the equity of redemption, the Court of Chancery regards the mortgagor as the owner of the same estate as he had in the lands before the mortgage, subject only to the debt thereby created: and one consequence of this doctrine is, that, on the death of the mortgagor, the mortgaged estate comes to the devisee or heir encumbered with this debt. By 17 & 18 Vict. c. 113, the estate so encumbered and devised or descending is, in the absence of an expressed intention to the contrary on the part

[the mortgagee may, where his debt remains unpaid] for more than a reasonable time after the time agreed on, file a "bill of foreclosure" in the Court of Chancery, calling upon the mortgagor [to redeem his estate presently, or in default thereof to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall (o). And also, in some cases of fraudulent mortgages (p),] such as twice mortgaging the same lands without giving notice of the mortgage already effected (g), [the fraudulent mortgagor forfeits all equity of redemption whatsoever.] The mortgagee may also bring the estate to sale in satisfaction of his debt, (paying over the surplus proceeds, if any, to the mortgagor,) even without resorting to the authority of a court of equity, provided the security be taken (as is now the usual practice) in such form as to authorize that course of proceeding; and even if no power of sale be conferred by the terms of the instrument, he may still bring the estate to sale in such manner as is provided by the recent act of 23 & 24 Vict. c. 145 (r).

It is further to be observed, that where no suit is pending in any court of equity, either for redemption on the one hand or foreclosure on the other, but the mortgagee attempts to obtain possession by bringing an action of

of the mortgagor, charged with such debt. Before this Act, in the absence of an expressed intention, the personal estate of the deceased mortgagor was primarily liable.

(0) As to the power of the Court of Chancery to direct, in such suit, a sale of the property instead of a foreclosure, see 15 & 16 Vict. c. 86, s. 48.

(p) See stat. 4 & 5 W. & M. c. 16. (1) In cases where the land is mortgaged to several persons, each ignorant of the other incumbrances, the maxim qui prior est tempore, potior est jure, prevails, as the general rule. (See Jones v. Jones, 8 Sim.

633; Wilmot v. Pike, 5 Hare, 14.) But preference is given, to a certain extent, to the mortgagee in possession of the legal estate; (Goddard v. Complin, 1 Cha. Ca. 119.)

(r) By this Act a mortgagee has now several powers as incident to his estate, though not in form conferred by the deed. These relate to the selling, &c., the insuring against fire, and the appointment of a receiver, who shall receive the rents and profits as agent of the person entitled to the property, subject to the charge. Sects. 11-24.