Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol II).djvu/171

be thus forfeited, and the eſtate abſolutely veſted in the mortgagee at the common law, yet they will conſider the real value of the tenements compared with the ſum borrowed. And, if the eſtate be of greater value than the money lent thereon, they will allow the mortgagor at any reaſonable time to re-call or redeem his eſtate; paying to the mortgagee his principal, intereſt, and expenſes: for otherwiſe, in ſtrictneſs of law, an eſtate worth 1000𝑙. might be forfeited for non-payment of 100𝑙. or a leſs ſum. This reaſonable advantage, allowed to mortgagors, is called the equity of redemption: and this enables a mortgagor to call on the mortgagee, who has poſſeſſion of his eſtate to deliver it back and account for the rents and profits received, on payment of his whole debt and intereſt; thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may either compel the ſale of the eſtate, in order to get the whole of his money immediately; or elſe call 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 re-call. And alſo, in ſome caſes of fraudulent mortgagees^[1], the fraudulent mortgagor forfeits all equity of redemption whatſoever. It is not therefore uſual for mortgagees to take poſſeſſion of the mortgaged eſtate, unleſs where the ſecurity is precarious, or ſmall; or where the mortgagor neglects even the payment of intereſt: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands, in the nature of a pledge, or the pignus of the Roman law: whereas, while it remains in the hands of the mortgagor, it more reſembles their hypotheca, which was where the poſſeſſion of the thing pledged remained with the debtor^[2]. But, by ſtatute 7 Geo. II. c. 20. after payment or tender by the mortgagor of principal, intereſt, and coſts, the mortgagee can maintain no ejectment; but may be compelled to re-aſſign his ſecurities. In Glanvil's time, when the univerſal me-

1. Stat. 4 & 5 W & M. c. 16.
2. Pignoris appellatione eam proprie rem contineri dicimus, quae ſimul etiam traditur creditori. At eam, quae ſine traditione nuda conventione tenetur, proprie hypothecae appellatione contineri dicimus. Inſt. l. 4. t. 6. §. 7.