2 Greenleaf's Rep. 322. It may, therefore, be presumed, notwithstanding the language of other parts of that case, that the doctrine stated in the text will yield to the more liberal views of the subject implied in the emphatical suggestion of the chief justice. The opinions of Judge Trowbridge are cited with the greatest respect in Massachusetts: and he is considered, and I presume very justly, as the oracle of the old real property law. He criticises, very ably, the opinion of Lord Mansfield; and some of the observations attributed to his lordship, in Martin v. Mowlin, were no doubt very loosely made. Judge Trowbridge insists, that Lord Mansfield confounds the distinction between mortgages of land for a term only, and a mortgage in fee. The former, he says, is but a chattel interest, and the latter an estate of inheritance, descendible as such, and the money due thereon is equitable assets. The Supreme Court of Massachusetts, in Parsons v. Welles, adhered to these views of the subject. But I would observe, with great submission and respect, that the doctrines of Judge Trowbridge, on mortgages, are far in the rear of the improvements of the age, in this branch of the science; and it will not do to take our doctrines of mortgages from Littleton and Coke. The language of the courts of law is now essentially the same as that in equity; and it is said, again and again, to be an affront to common sense, to hold that the mortgagor, even of a freehold interest, is not the real owner. To show that many of the positions of Judge Trowbridge are not law at this day, it is sufficient to state, that he maintains that the equity of redemption is not liable to be taken in execution; that the mortgage money, on redemption, goes to the heir, and not to the executor of the mortgagee; that a third mortgagee, without notice, may buy in the first mortgage, and secure himself against the second; that the mortgagee in fee has an interest which the creditor may take on execution. The cases of Morgan v. Davis, Paxon v. Paul, Jackson v. Davis, and Jackson v. Blodget, may be selected as cases in which it has been adjudged in the courts of law, that on discharge of the mortgage, after a default, the fee reverts to, and vests in the mortgagor, without any conveyance; and I am persuaded that most of the courts of law in this country would not now tolerate a claim of title under a mortgage, admitted or shown to have been fully and fairly satisfied by payment of the debt. In New*196 Hampshire, there is a statute provision which restores the land to the mortgagor, by simple payment, or tender after the condition is broken. Sweet v. Horn, 1 Adams, 332. Though the cancelling of a deed does not revest an estate, which has once passed under it by a transmutation of possession, Hudson's Case, Prec. in Ch. 235, yet, if the grantee has voluntarily, and without mistake, destroyed the deed, with a view to revest the title, he cannot be permitted to show its contents by parol proof. In that way, by a species of estoppel, the destruction of a deed may have the effect of a reconveyance. Farrar v. Farrar, 4 N. H. Rep. 191. In Cameron v. Irwin, 5 Hill's N. Y. Rep. 272, it was adjudged that payment of a mortgage extinguishes the power of sale contained in it. So in the case of the payment 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. Rep. 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. (1) (1) Doton v. Russell, 17 Conn. R. 146, is to a similar effect. And in Raynor v. Wilson, 6 Hill N. Y. Rep. 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 Scammon's Rep. 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. 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 in abridgment In the New-York Revised Statutes,b *it is defined to be an estate limited to commence in possession at a future day, on the determination, by lapse of time, or otherwise, of a precedent estate, created at the same time. *198 of it. a Co. Litt. 49. a. 143. a. 2 Blacks. Com. 163. Preston on Estates, vol. i. 90, 91. b Vol. i. 723. sec. 10, 11. • The New-York statutes give a broad construction to the term remainder, for 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." 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. 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 it, are considered, *199 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 partatively, and in succession, is a very natural and obvious contrivance, and must have had a place in early civilization.c 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. 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 laboured 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. b2 Blacks. Com. 164. • Mr. Cornish has detected, in some ancient authorities, the evidence that partial If the whole fee be granted, there cannot, as a matter of course, be any remainder. 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. 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 *200 if the estate 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. 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. If the prior fee be con interests, carved out of the inheritance, with a limitation of remainders over, existed among the Anglo-Saxons. Essay on Remainders, 3. 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. b 10 Co. 97. 1 Eq. Cas. Abr. 186. E. 1. Vide supra, p. 10, note b. • 2 Inst. 336. Fearne on Remainders, 7, 8. Doe v. Ellis, 9 East's Rep. 382. Tenny v. Agar, 12 ibid. 253. Dansey v. Griffith, 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 |