a right of obligation against a person, or a jus ad rem. It can be directed against no other than the person who stands obliged, or his heirs, but actions founded on a right in a subject, may be directed against all possessors of that subject, although they should not represent the granter. (a)

As an heritable bond completed by seisin, is both a real and a personal right, it may be the foundation of both a real action and a personal action. The former may be directed against all possessors for the arrears of interest due upon the bond, and the personal action is competent against the grantor of the bond, or his representatives, for the principal sum in virtue of the obligation of payment which it contains. (b)

Until the abolition of real actions by the recent statute, (c) actions were distinguished by the law of England, as real, personal, and mixed.

As corporeal and incorporeal real property might be recovered by mixed actions, they would then as well as now be deemed real actions in the sense in which those actions are so regarded by the preceding systems of jurisprudence, for the remedy to recover the land passes with the land to the heir, devisee, or alienee.

The distinction adopted by the commentators on the coutume of Paris, and by the Code Civil, has been already stated. (d)

II. In all the preceding systems of jurisprudence, except that of Scotland, debts, contracts, or obligations, in whatever manner they are contracted, and by whatever instrument created, which give a right of action against the person, are moveable, (e) and they retain that quality although they be secured on land or other immoveable property, if that security be an accessory

(a) Erskine, b. 4, tit. 1, § 10. (c) 3 and 4 Wm. 4, c. 27. (e) Voet, lib. 1, tit. 8, n. 21, 2 Powell on Mortgages, 662, 667.

(b) Ib.

(d) Ante, vol. 1, p. 340. et seq. M. Merlin, lib. 1, tit. 1, Q. 5. Febrero, tit. 3, c. 3, § 35.

only to the debt. A mortgage of real property is therefore a moveable debt.

Although the security be in the nature of a Welch mortgage, in which no certain time is mentioned for redemption, yet it is a personal debt, and as such payable out of the personal assets of the testator, for the basis of the contract is still the debt, notwithstanding there may be neither bond nor covenant for payment of money, and the land is taken collaterally as a pledge. (a)

But the mortgage may, from the stipulations which it contains, confer real or immoveable rights. Of this description are agreements between the debtor and creditor, that the latter shall not sell the mortgaged estate, or that the former shall on a certain event be at liberty to take the mortgaged estate at a fixed price. (b)

So, by the law of England, a distinction is taken between a mortgage and an absolute conveyance with a collateral agreement to reconvey upon repayment of the purchase money. (c)

According to the law of Scotland, if the matter be feudal, or connected with land, the right though not made real by seisin, belongs to the heir as real property. Naked charters, or dispositions of the property, or superiority of lands, or heritable bonds, though seisin has not proceeded on them, are heritable, because they are all rights of, or securities upon land, and the proprietor or creditor may complete them by seisin, when he thinks proper. But if the creditor cannot by the terms of the clause of infeftment take present seisin, but must wait for the existence of a condition or of a day, as when he is not empowered to take seisin, unless the debtor makes default in payment on the appointed day, the debt con

(a) Howell v. Price, Pre. Ch. 477. S. C. 1 P. Wms. 291. 2 Powell on Mortgages, p. 781, 782.

(b) Voet, tit. de Hypoth. lib. 20, tit. 1, n. 21, 22. tit. 4, Q. 113, et seq.

(c) 2 Powell on Mortgages, 664. 1 Ib. 130, 138, note.

M. Merlin, lib. 4,

tinues moveable, till the obligation to infeft is purified by the existence of that day, and the debtor's failure, for until then, it is not in the creditor's power to affect or charge the lands with the debt. (a)

A bond taken simply to the creditor and his heirs is moveable, for the subject of it is moveable, and it is neither secured upon land, nor yields any annual profits to the creditor. A debt, in which there is an express stipulation for interest, either contains a clause for seisin in lands, or a bare personal obligation of the borrower without any reference to land. Personal bonds, bearing interest, were by the common law of Scotland heritable quasi feuda, because in the fixed yearly profits which they gave, they had some degree of resemblance to rights properly feudal, if the bond was so conceived as to make the term of payment of the interest precede the term of payment of the bond, and the creditor survived the period when the interest fell first due, or if the payment of the bond was made at a distant or uncertain day, because the distance or uncertainty of the term of payment in the latter case afforded the presumption that the creditor intended from the beginning to employ his money for a number of years at interest. It obtained universally that all personal bonds were heritable after the term of payment of the principal, because if the obligee did not then call for payment, it was presumed he intended it should remain with the obligor, that it might yield him a yearly profit. (b)

In order to enlarge the provision for younger children the act of 1641, c. 57, revived by act of 1661, c. 32, was passed, by which sums contained in contracts or obligations carrying a clause of interest are declared to (a) Fisher, Feb. 1718, Dict. p. 5516.

(b) Stair, July 31, 1666, Gordon, Dict. p. 5505. Ramsay, Dec. 20, 1682, Dict. p. 4234. Douglas, Feb. 26, 1629, Dict. p. 5504. Durie, Jan. 15, 1628, Falconer, Dict. p. 5465. Gray, July 13, 1666, Dict. p. 3629. Ersk. b. 2, tit. 2, §9. Stair, b. 2, tit. 1, § 3, et seq. Ib. b. 3, tit. 8, note, p. 600. Ross, 4th July, 1809, Fac. Coll.

descend to the bairns, and next of kin of the deceased, unless the executors are excluded. But those bonds, although they now descend to executors, are moveable only as to succession. They continue heritable in respect of the fisk and of the rights of husband and wife.

The act of 1661 excepts bonds containing a clause of infeftment, because such clause plainly discovers the creditor's intention to constitute with his money a feudal right on land. Under this exception may be included even personal bonds, which contain an assignation to an heritable subject for the creditor's further security. (a) Bonds excluding executors are excepted from that act. (b)

If the creditor take a bond payable to himself, his heirs and executors, it will belong to his executors solely, notwithstanding it is made payable both to heirs and executors. Even if it is expressed to be payable to his heirs, without mentioning executors, the right devolves not on the proper heir, though heirs are mentioned, but on the executors who are not mentioned, both because the act of 1661 is express that all bonds shall go to executors if they be not excluded, and because the word heir is a generic term, which comprehends every person who is entitled by law to succeed to any right on the death of the owner or creditor. The executor is the hæres in mobilibus. But if the bond had been taken to heirs male, or to a series of heirs male or female in succession, it would be otherwise, because such a destination is an exclusion of executors as evident as if they had been expressly excluded. (c)

If, in a conveyance of a bond excluding executors, the creditor exclude also the assignee's executors, the bond continues heritable in the person of the

(a) Fraser's Trustees, July 12th, 1749, Dict. p. 5491. tit. 2, § 12.

(b) Ross, July 4th, 1809, Fac. Coll.

Ersk. b. 2,

(c) Ersk. Ib. § 11.

assignee, and on the other hand, if such bond be conveyed to an assignee, his heirs and executors, the excluding clause in the original bond no longer operates, and the sum becomes moveable. In both cases the intention of the assignee is clearly shown by the manner in which he directs the conveyance to be made. (a)

The act is limited to obligations which contain clauses of interest. Those, therefore, which carry interest without the stipulation of parties, continue as they were by the former law. On this ground all subjects bearing interest ex lege, as bills, claims of relief, &c., as they were moveable by the common law, continue to be moveable in all respects, i. e. not only as to the heir and executor, but as to the fisk, husband, and widow. (b)

The law of Scotland distinguishes heritable rights as conditional or limited, as well as simple and absolute. Of the former are those rights which are called redeemable, because they return to the grantor or disponer on payment of a sum of money for which they were granted; or, according to the more sound and comprehensive definition, they are the powers or faculties which in a certain event, or within a certain period of time, or without any restriction in point of time, are competent to the debtor or the grantor of the right. The power to redeem is called a right of reversion, because by force of that power, the subject granted will revert to the grantor. Reversions are either legal, which arise from the law itself, as in apprisings or adjudications, which by statute are declared redeemable within a certain time after their date, or conventional, which are constituted by the agreement of the parties, whether they be incorporated in the body of the right, or granted in separate writings. (c)

The term "reversions" was most frequently applied

(a) June 17th, 1680, Sandilands, Dict. p. 5498. (b) Edg. Dec. 18th, 1724, Leslie, Dict. p. 5768. (c) Ersk. b. 2, tit. 8, § 2, et seq.

Ersk. b. 2, tit. 2. § 12. Ersk. ib. § 13.