Commentaries on American Law

of a judgment. Payment extinguishes a mortgage as much as if it was released or cancelled, and the whole title revests in the mortgagor. The assignee of a mortgage holds by no title or right paramount to that of his assignor. But in Connecticut, in the case of Smith v. Vincent, 15 Conn. 1, it was adjudged, as late as 1842, that the title of a mortgagee, under a satisfied mortgage after foreclosure, might be set up as a defence at law, by a person not a stranger, to an action of ejectment, as the title is to be governed by what appears upon the records. And in Raynor v. Wilson, 6 Hill (N. Y.), 469, it was adjudged that a destruction or surrender of a deed of lands would not operate to revest the grantor with the title. Duncan v. Wickliffe, 4 Scamm. 452, S. P. But though where title has passed by transmutation of possession, it does not revest by the cancelling of the deed, yet the party who voluntarily cancels his deed, is precluded from taking it up.

Doton v. Russell, 17 Conn. 146, is to a similar effect

LECTURE LIX.

OF ESTATES IN REMAINDER.

ESTATES in expectancy are of two kinds: one created by the act of the parties, and called a remainder; the other by the act of law, and called a reversion. I shall confine myself in this Lecture to estates in remainder.

To give as much perspicuity as possible to the arrangement and discussion of so intricate a subject, I shall treat of remainders in the following order:

I. Of the general nature of remainders.

II. Of vested remainders.

III. Of contingent remainders.

IV. Of the rule in Shelley's case.

V. Of the particular estate.

VI. Of remainders limited by way of use.

VII. Of the time within which a contingent remainder must vest. VIII. Of the destruction of contingent remainders.

IX. Of some remaining properties of contingent remainders.

I. Of the general nature of remainders.

A remainder is a remnant of an estate in land, depending upon a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the determination

of that estate, and not an abridgment of it. (a) In the New *198 York Revised Statutes, (b) *it is defined to be an estate limited to commence in possession at a future day, on the deter

91.1

(a) Co. Litt. 49 a, 143 a. 2 Blacks. Comm. 163. Preston on Estates, vol. i. 90, (b) Vol. i. 723, secs. 10, 11.

1 Booth v. Terrell, 16 Geo. 20.

mination, by lapse of time, or otherwise, of a precedent estate, created at the same time. (a) Mr. Cornish, after a careful analysis of Lord Coke's definition, substitutes his own. A remainder, he says, is "an estate in lands, hereditaments, or chattels real, limited to one who may take a new estate therein, on the natural determination of a particular estate in the same subject-matter, created either in fact or in contemplation of law, together with such particular estate, and forming, to certain purposes, but one estate therewith. (b) A remainder may consist of the whole remnant of the estate; as in the case of a lease to A. for years, remainder to B. in fee; or it may consist of a part only of the residuary estate, and there may be a reversion beyond it left vested in the grantor, as in the case of a grant to A. for years, remainder to B. for life; or there may be divers remainders over, exhausting the whole residuum of the estate, as in the case of a grant to A. for years, remainder to B. for life, remainder to C. in tail, remainder to D. in fee. The various interests into which an estate may be thus subdivided make, for many purposes, but one estate, being different parts or portions of the same entire inheritance. (c) Though a remainder, in its original simplicity, would appear to be very easy, safe, and practical, yet the doctrine of remainders, when the collateral refinements and complex settlements which have, in the * course of time, grown out of *199 it, are considered, will be found to surpass all the modifications of property in the difficulties which attend the study and the practice of it. The subdivision of the interest of an estate, to be enjoyed partitively, and in succession, is a very natural and obvious contrivance, and must have had a place in early civilization. (a)

(a) The New York statutes give a broad construction to the term remainder, for they declare, that where a future estate is dependent on a precedent estate, it is a remainder, and may be created and transferred as such. 1 New York Revised Statutes, 723, sec. 11.

(b) Cornish's Essay on the Doctrine of Remainders, 1827, p. 96. Mr. Cornish pronounces his own definition to be accurate; but he is not remarkably happy, either in brevity, or neatness, or clearness of expression. He ought to be accurate ad unguem, for he has occupied upwards of seventy pages in a labored analysis to produce his definition; and some parts of his inquiry involve critical discussions upon the most abstruse, subtle, and artificial distinctions in the law. They could not be made intelligible without giving more space to them than these Lectures will allow.

(a) Mr. Cornish has detected, in some ancient authorities, the evidence that partial interests, carved out of the inheritance, with a limitation of remainders over, existed among the Anglo-Saxons. Essay on remainders, 3.

If the whole fee be granted, there cannot, as a matter of course, be any remainder. (b) So, if an estate be granted to A. and his heirs, till C. returns from Rome, and then to the use of B. in fee, the limitation to B. cannot be good as a remainder, though it may enure as a shifting use or executory limitation; for the entire fee passed to A. as a base or qualified fee, in which the grantor retained only a possibility of reverter. (c)1 But if the estate had been granted to A. without words of inheritance, until C. returned from Rome, he would have taken only a freehold estate, and the residue of the estate upon the return of C., if limited to the use of B., would be a remainder. It would equally have been a remainder if the estate *200 had been limited to A., and the * heirs of his body, until the return of C. from Rome, and then to the use of B. in fee; for an estate tail, not being the whole inheritance like a qualified fee, but only a portion of the entire estate, the remnant to B. would be a remainder. There can be no remainder limited after an estate of inheritance, except it be after an estate tail. There may be a future use, or executory devise, but it will not be a remainder. (a) In a devise, a subsequent interest may frequently be supported as a remainder, notwithstanding a limitation to the heirs of the prior devisee, provided the generality of the word heirs be restrained to issue, as a devise to A. and his heirs, and if he dies without issue, remainder over. (b) If the prior fee be contingent, a remainder

(b) This is a clear principle of the common law; but the New York Revised Statutes, vol. i. 723, sec. 16, have changed the whole doctrine on this point, and allowed a contingent remainder in fee to be created on a prior remainder in fee, and to take effect in the event that the persons to whom the first remainder is limited shall die under the age of twenty-one years, or upon any other contingency, by which the estate of such persons may be determined before they attain their full age. So, a fee may be limited upon a fee, upon a contingency which, if it should occur, must happen within the period prescribed by the article, that is, two lives in being at the creation of the estate. Ibid. sec. 24.

(a) 2 Inst. 336.

(b) Doe v. Ellis, 9 East, 382. Tenny v. Alger, 12 Ibid. 253. Dansey v. Griffiths, 4 Maule & Selw. 61. The series of cases on this subject, as Mr. Humphrey expresses it, in his Observations on Real Property, has been "obscurely shading down from a fee-simple to a fee tail." "he New York Revised Statutes (vol. i. 722, secs. 3, 4) have provided for the preservation of valid remainders, limited upon every estate, which,

1 Brattle Square Church v. Grant, 3 Gray, 142

may be created, to vest in the event of the first estate never taking effect, though it would not be good as a remainder, if it was to succeed, instead of being collateral to the contingent fee. Thus, a limitation to A. for life, remainder to his issue in fee, and in default of such issue remainder to B., the remainder to B. is good as being collateral to the contingent fee in the issue. It is not a fee mounted upon a fee, but it is a contingent remainder with a double aspect, or, as Mr. Douglas says, with less quaintness, on a double contingency. (c) But if the remainder over to B. * had been merely * 201 in the event of such dying before twenty-one, it would have been good only as a shifting use or executory devise, for it would have rested on an event which rescinds a prior vested fee. (a) There is likewise a double contingency when estates are limited over in the alternative, or in succession. If the previous estate takes effect, the subsequent limitation awaits its determination, and then vests. But if the first estate never vests by the happening of the contingency, then the subsequent limitation vests at the time when the first ought to have vested. (b) The New York Revised Statutes (c) have provided for this case of limitations in the alternative, by declaring, that two or more future estates may be created to take effect in the alternative, so that if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly.

Cross-remainders are another qualification of these expectant estates, and they may be raised expressly by deed, and by implication in a devise. If a devise be of one lot of land to A., and of another lot to B., in fee, and if either dies without issue, the survivor to take, and if both die without issue, then to C. in fee, A. and B have cross-remainders over by express terms; and on the failure of either, the other or his issue, takes, and the remainder to C. is postponed; but if the devise had been to A. and B. of lots to each, and remainder over on the death of both of them, the

under the English law, would be adjudged an estate tail. They are declared valid as conditional limitations upon a fee, and vest in possession on the death of the first taker, without issue living at the time of his death.

(a) Cornish on Remainders, 27-29.

(b) Doug. supra.

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Commentaries on American Law: 4, Volum 3