brought a bill to have the bond delivered up.” There was a question whether there had been a donatio causa mortis, and the administrator there brought a bill to have the bond delivered up, as being in the hands of the alleged donee. Lord Hardwicke, however, decided, that this was a sufficient donatio causa mortis to pass the equitable interest, not the legal interest in the bond, upon the intestate's death. I find that Lord Hardwicke, in the case where there was a gift in the nature of a donatio mortis causa, directed that the representatives should be at liberty to file a bill to have the deeds delivered up, although he said they might bring trover for the deeds; but if the act of the donor had vested the deeds in the hands of the person in such a manner as to give an interest in the nature of a donatio mortis causa, there could be no equity to obtain the delivery up of those deeds unless the title had been settled at law. The real question in this case is not whether this was good as a donatio causa mortis, if the subject of delivery had been a bond alone, but whether the subject of delivery being mortgages, that is, estates in land in one sense of the word, such interests in land as those are can or cannot be made the subject of a donatio causa mortis? A question which is left in a state of great uncertainty a question noticed in some cases, but still left in a state of great difficulty; and I cannot but extremely lament that there should have been a decision upon a question of this importance with so little said either in argument or judgment upon the bearings of the cases to be found with reference to this subject. Upon looking into the cases, I observe that in the very first case I can find Lord Hardwicke to have decided, he expressed more doubt upon the subject than, in my humble judgment, speaking with great deference when looking at that great man's authority, former decisions upon the subject would have induced me to expect to find in his Lordship's expressions. In the case of Hassell v. Tynte, Ambl. Rep. 318, in which a lady claimed to have a sum of £1,000 secured by mortgage, which she said she had become entitled to by a donatio causa mortis made by the donor (the testator is a wrong term in such a case) - there were two questions, one was a question of fact, namely, whether the circumstances were such as to constitute it a gift, if it was a proper subject of gift? The other- whether it was a proper subject of gift? Lord Hardwicke expressed a doubt whether a mortgage deed could be made the subject of a donatio causa mortis, and he finished the case by saying, "I observe that this lady, when she becomes twenty-one, is to be the residuary legatee of the testator, and as she will very soon attain the age of twenty-one, I will not keep up this controversy between her as claiming this £1,000 and the person entitled to the residue if she dies under twenty-one; the probability is she will arrive at the age of twenty-one, and then, as residuary legatee, she will be entitled to all the residue, and then it will become unnecessary to determine whether this £1,000 shall be settled upon her or not." In the case of Ward v. Turner, 2 Ves. Sen. 431, which is a leading case upon this subject, Lord Hardwicke entered into a very long consideration of the case in his judgment. The question there was, whether some receipts for stock having been delivered over, it was a good donatio causa mortis? He was of opinion it was not; that the mere certificate of the stock was not a document of the title, and where no document of the title has been delivered there can be no transfer of the property, and he held that that was not a good donatio causa mortis. In Richards v. Symes, 2 Atk. 319; 3 Barnard. 90; and 2 Eq. Ca. Abr. 617, Lord Hardwicke is represented as having decided, that if a mortgagee gave to his mortgagor the deeds of the mortgage, and that fact was proved, that was a gift of the money for which the deeds were a security, and not within the Statute of Frauds. Now the whole, or the greater part of the difficulty in determining whether the gift of a mortgage can be a good donatio causa mortis, turns upon this, - that the question arises how far the Statute of Frauds will allow of that. Lord Hardwicke was of opinion, according to this case of Richards v. Symes, that if a mortgagee gave to a mortgagor the deeds, the Statute of Frauds would not stand in the way; he held clearly that the mortgagee cannot get back the deeds from the mortgagor; then he said that the documents, the deeds being in the hands of the mortgagor, though the estate in the land was still in the mortgagee, yet by operation of law a trust would be created in the mortgagee to make good a gift of the debt to the mortgagor, to whom he had delivered the deeds, as the evidence that he forgave the debt and gave it up. We must consider the difference between the actual estate and a mortgage- and recollect that although a mortgage vests an estate in land (a fee simple mortgage of course vests a fee simple estate in land), yet it may be represented that there are two estates, one in the mortgagor and another in the mortgagee. A mortgage, for instance, does not revoke the will of the testator. A mortgage does not give dower it is, in truth, nothing more than a pledge, and if the right to the principal is divested out of the mortgagee by a valid act to divest the right of the principal, the other is considered as what they call an accident, and then the question arises not whether the land can be got out of the mortgagee without a conveyance, but whether, if the land is to be considered as still remaining vested in the mortgagee, he is not, by operation of law, a trustee for the mortgagor, bound to answer the subpoena of that mortgagor to reconvey the estate to him, and to execute the requisites of the Statute of Frauds. In the case of Hassell v. Tynte, Lord Hardwicke makes the observation in giving his judgment: that the case of Richards v. Symes was not a precedent of very considerable value; because, he says, that he had directed issues to try whether there was a gift by the mortgagee to the mortgagor, and those issues having ended in deciding that there was not, he considered that a precedent of very little authority. I con The case sider it, however, as a precedent of very considerable authority in such a case as this. It is reported at length in Barnardiston's Chancery Cases, and when I mention that reporter, I am sorry to have to add, that I am old enough to remember Lord Mansfield, who practised under Lord Hardwicke, by whom all these cases were decided, state his opinion of these reports, for he knew the man. I take the liberty of saying, that in that book there are reports of very great authority. happens to be reported likewise in another book of no very high character. I mean the second volume of the Equity Cases abridged. It is not so high in character as the first volume of the Equity Cases abridged ; but the case as there reported, is reported from a manuscript note, and from a manuscript note which I think is better entitled to credit for this reason that having called in assistance in this case (which I believe will be the first absolute determination upon the subject, though I think there is a great deal laid down in the cases which ought to lead us to decide what ought to be a good donatio mortis causa), I have found authority to consider that report to be a very correct report, in the library and in the mind, which are both equally large storehouses of equity learning-I mean the library and mind of Lord Redesdale. Upon this occasion, he has had the goodness to hunt through all the books he has upon the subject, as well manuscript as printed, and I come to the foundation of my opinion, with all the assistance I can have from that quarter. According to both the reports, an issue had been directed. If there had been a good delivery, Lord Hardwicke seems to consider that the interest in the land would have passed: "But in all these cases," he says, “there is a difference, both at law and in equity, between absolute estates in fee or for a term of years, and conditional estates for security of money. In the case of absolute estates, it cannot be admitted that parol proof of the gift of deeds shall convey the land itself. But where a mortgage is made of an estate, that is only considered as a security for the money due, the land is the accident attending upon the other (and principal object), and when the debt is discharged the interest in the land follows of course." A trust of the land then arises by operation of law: when a deed is given a trust also arises by operation of law. "At law, the interest in the land is thereby defeated, and in equity a trust arises for the benefit of the mortgagor:" and his Lordship said, that "if an obligee delivers up a bond with intent to discharge the debt, the debt will certainly be thereby discharged, and the mortgage with it;" and if the bond is discharged in the present case, it is very difficult to say that the mortgage debt, as debt, will not be discharged also. In reasoning the case of Ward v. Turner, and pointing out the distinction there is between the delivery of a mere chattel, and the delivery of anything which forms part of the title, Lord Hardwicke says thisand I find by a manuscript note in the possession of the noble Lord I have mentioned, that this is exceedingly correct-"Suppose it had been a mortgage in question, and a separate receipt had been taken for the mortgage money, not on the back of the deed (which was a very common way formerly, and is frequently seen in the evidence of ancient titles), and the mortgagee had delivered over this separate receipt for the consideration money, that would not have been a good delivery of the possession, nor given the mortgage mortis causa, by force of the act" (2 Ves. 443). To be sure, that reasoning is quite idle, unless Lord Hardwicke meant to say that delivery of the deed, with a receipt upon the back of it, not by force of the delivery of the receipt on the back of it, but by force of the delivery of the deed, would be a good donatio causa mortis. 1 The case of Richards v. Symes was argued by Lord Mansfield, then Mr. Murray. The case of Ward v. Turner was also argued by Lord Mansfield, then Mr. Murray; and he appears to have a strong recollection of it, when he got into the Court of King's Bench, where sometimes equity has been rather more misunderstood than it ought to be, which has perhaps led some men belonging to that court to abuse equity, when they knew nothing about the matter. There is a case in the second volume of Burrows' Reports a case of very great importance a case in which a man devised lands; the will, I think, was not attested by three witnesses, but he described the object of his devise of land. There was enough in his will to show that he meant to pass the personal interest in his property, and it was a question, whether there was a good devise of the mortgage or not. The land itself could not be said to be devised; but the Court of King's Bench held that it was a very good bequest of the personal interest: and Lord Mansfield, in summing up all this sort of doctrine, says, "A mortgage is a charge upon the land, and whatever would pass the money will carry the estate in the land along with it to every purpose." (That I admit is equity.) "The estate in the land is the same thing as the money due upon it — it will be liable to debts it will go to executors - it will pass by a will not made and executed with the solemnities required by the Statute of Frauds. The assignment of the debt or forgiving it, will draw the land after it as a consequence: nay, it would do it, though the debt were forgiven only by parol, for the right to the land would follow notwithstanding the Statute of Frauds.” I ought to do it in a spirit of great humility, when I question the doctrine of Lord Mansfield. If he meant by that to say that such acts done with the money will have the effect in a Court of Equity of enabling you to call for a conveyance of land, I am ready to agree with him; but to say that the land is to be considered as passing under such circumstances, is that to which I cannot agree; but still I maintain that the doctrine from first to last is correct, provided you lay the foundation in the intent of the gift, that the debt is well given or well forgiven; and then, as the result of that interest so given, you say that the party who has the land becomes in equity 1 Martin v. Moulin, 2 Burr. 979. a trustee for the person entitled to the money and to the personal estate. Lord Hardwicke, with respect to the bond (and it is necessary that I should take some notice of this, because there has been a change in the law which that great judge did not foresee, but which, in later times, and in my own time, has become very familiar in the courts of law),Lord Hardwicke states, as one ground of his opinion in the case of the bond, that it is a good gift causa mortis, because he says he who has got the bond may do what he pleases with it. He certainly disables the person who has not got the bond from bringing an action upon it: for, says Lord Hardwicke, no man ever heard (and I have seen in the manuscript of the same Lord Hardwicke, that he said no man ever will hear) that a person shall bring an action upon a bond without the profert of that bond; but we have now got into a practice of sliding from courts of equity into courts of law, the doctrine respecting lost instruments; and I take the liberty most humbly of saying, that when that doctrine was so transplanted, it was transplanted upon the idea, that the thing might be as well conducted in a Court of Law as in a Court of Equity, a doctrine which cannot be held by any person who knows what the doctrine of Courts of Equity is as to a lost instrument. Then, if the delivery of a bond would, as it is admitted (notwithstanding any change in the doctrine about profert) - if the delivery of a bond would give the debt in that bond, so as to secure to the donee of that bond the debt so given by the delivery of the bond, the question is, whether the person having got, by the delivery of that bond, a right to call upon the executor to make his title by suing or giving him authority to sue upon the bond, what are we to do with the other securities if they are not given up? But there is another question to which an answer is to be given: what are we to do with respect to the other securities, if they are delivered? In the one case, the bond and mortgage are delivered; in the other, the judgment, which is to be considered on the same ground as a specialty, is delivered - with that, the evidences of the debts are all delivered. The instrument containing the covenant to pay is delivered. They are all delivered in such a way that the donor could never have got the deeds back again. Then the question is, whether, regard being had to what is the nature of a mortgage, contradistinguishing it from an estate in land, those circumstances do not as effectually give the property in the debt as if the debt was secured by a bond only? The opinion which I have formed is, that this is a good donatio mortis causa, raising by operation of law a trust; a trust which being raised by operation of law, is not within the Statute of Frauds, but a trust which a Court of Equity will execute; and therefore, in my humble judgment, this declaration must be altered by stating that this lady, the daughter, is entitled to the benefit of these securities, and with a direction to the Court of Equity to proceed in the cause, on the ground of the principle to be found in such a declaration to be made VOL. IV.- - 6 |