heir enter into the land; and yet the condition is, that if the feoffor shall pay such a sum at such a day, &c. not making mention in the condition of any payment to be made by his heir; but for that the heir hath interest of right in the condition, &c. and the intent was but that the money should be paid at the day assessed, &c. and the feoffee hath no more loss, if it be paid by the heir, than if it were paid by the father, &c.; therefore, if the heir pay the money, or tender the money at the day limited, &c. and the other refuse it, he may enter, &c. And so may his heir after his death. 260 b. 205 b. 27 H. 8 19b. Lib. 8. Albeit conditions be not favored, yet they are not always taken literally, but in this case the law enableth the fol. 91. Frances' heir, that was not named, to perform the condition for case. (1 Rol. 426.) four causes (54). (54) V. T. 15 Jac. After covenant to stand seised to the use of B. and his heirs, with proviso of reVocation on payment to B. and his assigns; B. dies; he may tender to been kept, it seems, that a possession even of fifty years will not bar a redemption. Lake v. Thomas, 3 Ves. 17. Esdell v. Buchanan, 2 Ves. jun. 84. 4 Bro. C. C. 256. Proctor v.. Cowper, 2 Vern. 377. Prec. Ch. 116. 1 P. Wms. 271. Anon. 2 Atk. 333. Yates v. Hambly, 2 Atk. 363. And if a man takes notice by a will or any other deliberate act (Perry v. Martion, 3 Bro. C. C. 399. Anon. 3 Atk. 314.), as an answer to a bill in chancery (Proctor v. Oates, 2 Atk. 140.), that he is a mortgagee, acknowledgments of that nature (though made in transactions with other persons, not with the heirs of the mortgagor, Hansard v. Hardy, 18 Ves. 455. Et vid. Smart v. Hunt, cited in Hardy v. Reeves, 4 Ves. 478 n.) will take the case out of the rule, that a mortgagor shall not redeem after twenty years. Hodle v. Healey, 1 Ves. & B. 536. But the mere demand of an account by the mortgagor, is not alone sufficient to prevent the effect of such a length of time. Hodle v. Healey, supra. 1 Mad. Ch. 417. Hansard v. Hardy, 18 Ves. 451. Where no time is appointed for payment of the mortgage money, length of time is no objection to a redemption: as where it was agreed that the mortgagee should enter and hold till he was satisfied, it being in nature of a Welsh mortgage, Ord v. Hemming, 1 Vern. 418. Howell v. Price, Prec. Ch. 423. 1 P. Wms. 391. Yates v. Hambly, 2 Atk. 360: and time is no bar to a redemption in the case of a Welsh mortgage, unless twenty years have elapsed after payment of the principal and interest by perception of the rents and profits. Fenwick v. Read, 1 Meriv. 114. And where the mortgagor continues in possession even of any part of the premises (Rakestraw v. Brewer, Sel. Ca. Ch. 55. Et vid. Corbett v. Barker, 3 Anst. 755.), or where any species of fraud has been practised by the mortgagee (Orde v. Smith, Sel. Ca. Ch. 9. Forrest. 63. Gore v. Stacpoole, 1 Dow. 18.), length of (Post, 219 b.) (42) * *206 a. First, Because there is a day limited, so as the heir cometh within the time limited by the condition, for otherwise he could not do it, as shall be said hereafter in this chapter. Secondly, For that the condition descends unto the heir, and therefore the law that giveth him an interest in the condition, giveth him an ability to perform it (A I). *Thirdly, For that the feoffee doth receive no damage or prejudice thereby, (all these reasons are expressly to be collected out of the words of Littleton). And these things being observed, Fourthly, The intent and true meaning of the condition shall be performed. And where it is here said, that the heir may tender at the day limited, &c. herein is implied, that the executors or administrators of the mortgagor, or, in default of them, the ordinary may also (u) Vid. Sect. 337. tender, as shall be said (u) hereafter in this chapter. But what if the condition had been, if the mortgagor or heirs did pay, &c. and he died before the day without heir, so as the condition became impossible? Here it is to be observed, that where the condition becometh impossible to be performed by the act of God, as by death, &c. the state of the feuffee shall not be avoided, as shall (55) que not in L. and M. and Roh. time will not bar the right of redemption. On the other side, if the mortgagor be guilty of fraud, he will (by statute 4 & 5 W. & M. c. 16.) lose his equity of redemption. See Stafford v. Selby, 2 Vern. 589. The doctrine as to the payment of the mortgage money, and the other points connected with the law of mortgages, will be considered in the subsequent notes to this chapter.-[Ed ] (A 1) So where a person having two sons B. and C., devised lands to his wife for life, and after her death to his son C. and his heirs; provided that if B. did, within three months after the death of his wife, pay to C., his executors, &c. the sum of 5001. then the said lands should go to B. and his heirs; the wife lived several years, and during her life B. died, leaving J. D. his heir; it was held, that the possibility of performing this condition was an interest or right, or scintilla juris, which vested in B. himself; and consequently such right descended on his heir, and according to Littleton (supra) might be performed by him. Marks v. Marks, 1 Ab. Eq. 106. 1 Stra. 129.-[Ed.] be said hereafter in this chapter. And therefore the law here enableth the heir (of whom no mention was made in the condition) to perform the condition, lest the inheritance should be lost. LITTLETON. ALSO, it seemeth, (55) that in such case where the feoffor dieth before the day of payment, if the execu- [Sect. 337.208 b.] tors of the feoffor tender the money to the feoffee at or his executors, &c. the day of payment, this tender is good enough; and if the feoffee refuse it, (56) the heirs of the feoffor may enter, &c. And the reason is, for that the executors represent the person of their testator, &c. (в 1.) "The person of the testator, &c." This is to be understood concerning goods and chattels either in possession or in action, and the executor doth more actually represent the person of the testator, than the heir doth the person of the ancestor; for if a man bindeth himself, his executors are bound though they be not named, but so it is not of the heir (c 1.): *furthermore, here the administrators and ordinary also are implied, as before hath been said (1). 209 a. (Post, 209 b.) (2 Saund. 136.) (42)* (Ante, 206 a.) Lib. 5. fol. 96, 97. Goodale's case. So as now it appeareth, that either the heir of the feoffor, or his executors, may (when a day is limited) pay the money; and so also may the administrators of the feoffor do, if the feoffor die intestate; (w) and this (u) Vid. sect. 334. may the ordinary do, if there be neither executor nor (See Hensloe's case. 9 Rep. 36 b.) administrator, as hath been said. BUT if a stranger of his own head, who hath not (55) que not in L. and M. and Roh. (56) donques added in L and M. and Roh. LITTLETON. [Sect. 334. 206a.] (B1) As to the person to whom mortgage money is to be paid, see the note to fol. 209 b. post.-[Ed.] [And see Mr. Butler's note at the end of the volume. Note 6.] (C1) See acc. Barber v. Fox, 2 Saund, 136. Hunt v. Swain, 1 Lev. 165 Crosseing v. Honor, 1 Vern. 180. So the heir is not bound by deed, unless expressly named. Sheph. T. 178. But in case of debts due to the king, the heir is bound though not named in the bond or other specialty. See stat. 33 H. 8. c. 39. s. 66.-[Ed.] (1) See Mr. Butler's note at the end of the volume. Note VOL. II. G 206 b. Vid. sect. 401. Hill. any interest, &c. will tender the aforesaid (57) money to the feoffee at the day appointed, the feoffee is not (58) bound to receive it. Nota, by this period and the (&c.) it is implied, that Secus as to a stranger. if the mortgagor die, his heir within age of fourteen years 28 Eliz. in Banco (the land being holden in socage), the next of kin to Regis, inter Watkins whom the inheritance cannot descend, being his guar& Astwick pro terris in Com. Devon. 45 E. 3 tit. Release 28. 32 E. 1. tit. Annuity 51. 32 H. 6. 13. (1 Leon. 34. Moore 222. Post, 225 b. 225 a.) Unless the heir be an ideot. 36 H. 6. tit. Barre 166. 33 E. 1. tit. Annuitie 51. 33 E. *207 a. (44)* LITTLETON. dian in socage, may tender in the name of the heir, because he hath an interest as guardian in socage. Also, if the heir be within age of twenty-one years, and the land is holden by knight-service, the lord of whom the land is holden may make the tender for his interest which he shall have when the condition is performed; for these, in respect of their interest, are not accounted strangers. But if the heir be an ideot, of what age soever, any man may make the tender for him in respect of his absolute disability; and the law in this case is grounded upon charity, and so in like cases. And note, that Littleton saith, that he is not bound to 3. receive it at a stranger's hand. But if any stranger in the name *of the mortgagor or his heir (without his consent or privity) tender the money, and the mortgagee accepteth it, this is a good satisfaction, and the mortgagor or his heir agreeing thereunto may re-enter into the land, omnis ratihabitio retrò trahitur et mandato æquiparatur. But the mortgagor or his heir may disagree thereunto if he will. *ALSO, if a feoffment be made on this condition, [Sect. 336.207b.] that if the feoffee pay to the feoffor at such a day beCondition to have fee tween them limited £20, (59) then the feoffee shall on payment of money have the land to him and to his heirs; and if he fail by a day certain, may be performed by the fe- to pay the money at the day (60) appointed, (61) that offee's alience; (57) avantdits not in L. and M. but in Roh. (48) pas not in L. and M. but in Roh. (59) que added in L. and M. and Roh. (60) assesse-&c. L. and M. (61) que added in Roh. but not in L. and M. then it shall be lawful for the feoffor or his heirs to enter, &c. and afterwards, before the day appointed, the feoffee sell the land to another, and of this mak eth a feoffment to him, in this case if the second feoffee will tender the sum of money at the day appointed to the feoffor, and the feoffor refuseth the same, &c. then the second feoffee hath an estate in the land clearly without condition. And the reuson is, for that the second feoffee hath an interest in the condition for the safeguard of (62) his tenancy. And in this case it or by the first feoffee. seems, that if the first feoffee, after such sale of the land, will tender the *money at the day appointed, &c. to the feoffor, this shall be good enough for the safeguard of the estate of the second feoffee, because the first feoffee was privy to the condition, so the tender of either of them two is good enough, &c. *208 a. E. 3. Ibid. 10. 12 Ass. 5. Plo. 481. "And if he fail to pay the money, &c." If a man 207 b. make a feoffment of lands, to have and to hold to him and 12 E. 3. Condic. 8. his heirs, upon condition, that if the feoffee pay to the 13 feoffor at such a day twenty pounds, that then the feoffee shall have the lands to him and his heirs, if the condition had not proceeded further, it had been void, for that the Lib. 5. fol. 96, 97, feoffee had a fee-simple by the first words, and there- Goodale's case. fore the words subsequent are materially added, "and if he fail to pay the money, &c." Albeit the second feoffee be not named in the condition, yet shall he tender the sum, because he is privy in estate, and in judgment of law hath an estate and interest in the condition, (as Littleton here saith) for the salvation of his tenancy. Vid. sect. 334. Vid. sect. 334. And note, he that hath an interest in the condition on the one side, or in the land on the other, may tender. "The first feoffee." Here it appeareth, that the first feoffee may, notwithstanding his feoffment, pay the money to the feoffor, because he is party and privy to the (63) son-le L. and M. and Roh. (5 Rep. 117.) (8 Rep. 42 b.) (2 Cro. 9. 245.) Lib. 5. fol. 114. 115. Wade's case. 208 a. |