37 L. J. N. C. 578. But it does mean that, unless he finds the land vacant (as would occur in the occasional, though not very common, case of a mortgagor in possession absconding) he cannot turn out any de facto possessor whatever, and this although the first mortgagee is willing to acquiesce in his taking possession.

It would, at first sight, seem that, since the Judicature Acts, at any rate, a person having the first equitable right to the land, or to the legal estate, or the first right in equity to possession, should be able to recover it against a person having an inferior right, or no colour of right at all. For, though the old action of ejectment, as a common law action, might well have been only enforceable by the person having the legal estate (and the modern 'action for the recovery of land' is but the action of ejectment under a new name), it might be thought that the technical limitation of this legis actio would, through the fusion of law and equity, be of no practical consequence1. The principles of the Courts in enforcing equities furnish, however, the reason for the contrary, and an apt illustration occurs in the case of Allen v. Woods, 68 L. T. 143 (1893), in the Court of Appeal. In that case, the plaintiff, as mortgagee of certain land in the possession of the defendant (under what title, if any, it will be noted, is not stated in the report, as being immaterial), had sought to recover possession upon an equitable title, the legal estate being admittedly outstanding in a person not a party to the suit, and he had failed in the Court below. The judgment of Lindley L.J. was as follows (Lord Esher and A. L. Smith L.J., the other members of the Court, concurred in dismissing the appeal) :—

'This is an ingenious attempt on the part of the plaintiff to rely upon an equitable title in an action of ejectment without having regard to the principles upon which equity acts. The plaintiff has not brought before the Court the person in whom the legal estate is vested. Such a proceeding as that has never been heard of in a court of equity, and such an action could not proceed unless an amendment were allowed making such person a party. The question as to the equitable title cannot be decided without bringing all the proper parties before the Court. For a plaintiff to come into court and say that he is a cestui que trust and to claim possession of the property in respect of which he is the cestui que trust without bringing all the parties before the Court is a proceeding which cannot be maintained. This action has been entirely misconceived, and the appeal must be dismissed.'

1 Lord Cairns in fact stated before the Select Committee on Land Titles and Transfer in 1879 (Vol. 1878-9, p. 148, No. 2872) that the Judicature Act knocked on the head, for all practical purposes, the distinction between the equitable and the legal estate, and a man with an equitable estate was practically as well off as a man with a legal estate.' Had such an intention been successfully carried out by the Act, a different means of enforcing compulsory legislation under the Land Transfer Act would now be needed.

It is of no avail that the mortgage may be in form a legal oneunless, possibly, the mortgagor has concealed the prior mortgage, so that it may be said to operate, so far as he is concerned, as a legal mortgage by estoppel-seeing that it is but executory in fact, and therefore 'equitable' in the broader sense of the term (not the special sense of a charge by deposit of title deeds).

Little difficulty may arise in the case of a mortgagor in possession abandoning the property to its fate, seeing that the incumbrancer who, with the acquiescence of the owner of the legal estate, thereupon assumes possession, can, like any one else, maintain such possession against third parties, though even here special precautions may be necessary, e. g. to maintain effective de facto possession of any unoccupied premises on a mortgaged building estate. But in the more usual case of a mortgagor unwilling to give up his possession, it follows from what has been said above that he can only be ejected with the assistance of the first mortgagee as owner of the legal estate-who may well be a 'sleeping dog' prudently to be left undisturbed, and the incumbrancers on the equity of redemption are thus powerless to step in and avert disaster by 'nursing' their security or to rescue the property from the tender mercies of an insolvent proprietor. And it is conceived that it also follows, where the property is wholly occupied by tenants, that the usual notice by a mortgagee to pay their rents to him would, if given by a second mortgagee, be ineffectual against the mortgagor who had granted their leases, and equally so any attornment to or recognition of the second mortgagee by such tenants.

The mortgagor himself is, however, by the Judicature Act, 1873, s. 25 (5), placed in an exceptional position as regards the general rule against recovery of land by a person not having the legal estate. This section enacts, in effect, that a mortgagor may (in the circumstances there stated) sue for possession against persons other than his mortgagee. It does not seem ever to have been suggested that the word mortgagor,' as used in the section, might be held to cover assignees of or incumbrancers upon the equity of redemption.

6

And in regard to a second mortgagee by demise, the difficulty would seem not to occur. The position of a lessee out of possession is somewhat similar to that of a freeholder having the legal estate, inasmuch as such a lessee can maintain ejectment, and this even if he has never entered under his lease; for his estate in the term, technically an interesse termini, is, in such a case, a quasi-legal estate carrying the right to possession and to maintain the action of ejectment. It follows that, in many cases, the creation of a long term would be of more advantage to a second mortgagee than the usual executory mortgage in 'legal' form, and there is no reason

why such a term should not be created at least as an additional security during the existence of the prior mortgage. In such a case, the position of a mortgagee under it would be that of trustees of portion terms, where there is a prior mortgage on the settled land. In our day, the numbers of persons in the position of subsequent incumbrancers and the aggregate amount of such securities must be very considerable, and it is submitted that the ordinary form of mortgage which is generally relied on, whether a prior mortgage exists or not, is insufficient where a prior mortgage does exist, or where the legal estate is otherwise outstanding, as it confers no possessory rights, and that the matter is one which requires the reconsideration of conveyancers, who would seem to have given altogether too little attention to second mortgages.

At any rate the disability here discussed should form a recognized item in the list of disadvantages customarily put forward as attending these securities. The point is certainly not within that category at present, and is, perhaps, one of the instances of overreliance upon modern statutory changes, without regarding the foundations of our law, which occasionally occur to remind us that we are not yet independent, even in everyday practice, of legal history.

And the matter may be worth legislative attention, in view of the slight change needed to secure to incumbrancers generally the right to possession which (as mentioned above) has already been expressly conferred upon mortgagors by statute, and possibly also upon proprietors of registered charges on land registered under the Land Transfer Acts. The Conveyancing Bill now before Parliament presents an opportunity.

Perhaps a provision (for what it is worth) might usefully be inserted in second or subsequent mortgages expressly authorizing the mortgagee to take possession against the mortgagor, who also, so far as is practicable, might delegate his rights under the abovementioned section of the Judicature Act to the mortgagee. And, seeing that the summary remedy for recovery of land under Order III, rule 6, has been held to be available to a mortgagee between whom and the mortgagor the deed has created the relationship of landlord and tenant (Daubuz and Others v. Lavington, L. R. 13 Q. B. D. 347), it should again become a matter of common form conveyancing to insert in these mortgages, for the purpose of giving a right to take possession, the attornment clause which, before the Bills of Sale Acts, used to be inserted for the sake of giving a power of distress.

R. M. P. WILLOUGHBY.

A MODERN DIALOGUE BETWEEN DOCTOR AND STUDENT ON THE DISTINCTION BETWEEN

VESTED AND CONTINGENT REMAINDERS.

Na former article1 it was suggested that so far as the distinction

remainders which were valid or indestructible by a rule of law defeating intent, and those that were only conditionally valid or destructible by such a rule, some remainders might be classed with those that were 'vested,' although they were subject to a condition precedent in form and in fact to their ever taking effect in possession. Two critics, at least, have refused utterly to accept such a view, and have decried any attempt to associate with so-called vested remainders any remainders which were in fact and in form subject to a condition precedent to their ever taking effect in possession 2. On the contrary, they have insisted that such interests be called 'contingent remainders.'

Their words have set me to considering the matter from a somewhat different point of view. Are we talking about essentials when we discuss a distinction between vested and contingent remainders? Are we not rather concealing our real meaning-obtaining results upon a rational basis which is never mentioned, then stating those results in irrational terms of vested' and 'contingent,' then building up an artificial notion of what remainders are vested and what contingent, and finally beginning to refer our results to this artificial distinction as its cause? Have we not, in short, come to the point of wasting time in an esoteric hypothesis which has no proper relation to any pragmatic results?

I believe these questions must be answered in the affirmative. The following dialogue between a modern doctor and student is, I think, a not unsuitable way of maintaining my thesis. It is perhaps unnecessary to say that the doctor is fed, as far as they seemed in any degree digestible, with the ideas of my critics, or with facts which they might fairly be expected to admit :

S. Remainders, as I understand them, embrace all legal future interests in land which are bound to take effect, if at all, after a

1 Future Interests in Land, II, L. Q. R. xxii. 383.

2 Harv. Law Rev., Jan., 1907, p. 243; Mich. Law Rev., vol. v, p. 497, Article by Joseph W. Bingham.

particular estate of freehold by way of succession-that is, whenever and however the preceding estate may determine otherwise than by being prematurely cut short by the express provision of the settlor.

D. Your definition is exact and comprehensive. I would only like to see it made a little shorter.

S. I understand also that a legal interest limited to take effect in possession after a term for years is not a remainder at all.

D. You are quite right. If it is contingent it is a springing executory interest1. If it is non-contingent it is supported as a present interest subject to a term for years. The holder has a present seisin 2, while the remainderman or holder of a future interest limited after a freehold has none. That a freeholder after the term has actual seisin is clear from the fact that the spouse of the freeholder after the term has dower or courtesy 3. The freeholder, even though not the original purchaser, constitutes a new stock of descent. It is clear that the remainderman has no seisin at all because he did not render feudal service 5. He could not bring a writ of right. In order to transfer a remainder the co-operation by attornment of the tenant was necessary, so that the actual seisin of the freehold in possession might be held for the grantee of the remainderman". A remainderman other than one who was an original purchaser did not constitute a new stock of descent. The consequences arising from the fact that the remainderman had no seisin have come down to us in the rule that there can be no dower or courtesy in a remainder.

S. What you say interests me exceedingly, for now I see that you cannot make a distinction between remainders upon the ground that of some the remainderman had actual seisin and of others he had none. The fact appears to be from what you say that all remaindermen alike were without any actual seisin till their interest came into possession.

D. That is precisely the case. As Hargrave says 10: The seisin

1 Gray's Rule against Perpetuities, 2nd ed., §§ 59, 60.

2 Challis, Real Property, 2nd ed., pp. 70, 89, 90.

3 Scribner on Dower, 2nd ed., p. 233.

Bushby v. Dixon, 3 B. & C. 298 (4 Gray's Cases on Property, 10).

5 Pollock and Maitland, H. E. L. ii. 39.

Littleton, s. 481.

7 Mystery of Seisin, by F. W. Maitland, L. Q. R. ii. 481, 490-93.

8 Kent. Com. 387. In this respect also the remainder was on the footing of

a mere right of entry by one disseised. (The Mystery of Seisin, by F. W. Maitland, L. Q. R. ii. 471, 485.)

9 Co. Lit. 29 a, 32 a; Scribner on Dower, 2nd ed., 233, 321. In this respect the remainder was on the footing of a mere right of entry by one disseised. Mystery of Seisin, L. Q. R. ii. 481, 485 et seq.

10 Co. Lit., Hargrave's note, 217.