Page:Harvard Law Review Volume 4.djvu/24

8 8 HARVARD LAW REVIEW. seizure of the property pledged, if it remained in the pledgor's possession, or by other distraint; and there was a conditional judgment precisely as there is upon the Massachusetts writ of entry for foreclosure, that the debtor should still have a reasonable time to pay before the foreclosure should become absolute.^ The word " mortgage" had already come into vogue in Glanville's day. It was employed to designate that species of pledge in which, by the terms of the bargain, a pawnee of land, a pledgee in possession, was to keep the income or profits of the land with- out applying them to payment of the debt. The word " mortgage " — dead pledge — was used precisely as we use the phrases, ''dead capital " and '' dead investment." Land in the possession of a pledgee upon these terms was dead; it gave no return to the owner.^ This feature of a contract of pledge, although not pro- hibited, was looked upon as unjust and dishonest, and was viewed as savoring of usury. •* Hence," says Glanville, '' if any one die having such a pledge, and after his death this be proved, his goods are to be treated as the goods of a usurer." As early as the time of Glanville, a form of contract had come into vogue, by which one might pledge his property on the terms that, upon default, the pledgee's interest should by the mere force of the contract convert itself into a fee and become absolute.^ This form of contract was still in use when Bracton wrote, seventy years later, about A.D. 1250.* The plan was this: One who de- sired to borrow on land, granted the land to the lender, in pledge, remainder to the grantor, the borrower, in fee, on the expiration of the vadium, i. e., on payment of the debt. If the pledge were pigniis, and the pledgee were in possession on the day of de- fault, his freehold began at once in possession ; if not, he had to resort to a real action to get possession;^ but his title was absolute. The time being come and the money not paid, the foreclosure was automatic. 1 See Glanv., lib. x. c. 8. 2 Glanv., lib. x. c. 8. See Beames's Glanville, lib. x. c. 8, note. in crepusculo si ad diem,. . . et ita eodem modo quo prius statim et sine mora descendit jus merum ipsi creditori." i Bract. (Rolls Ed.) 236, 8. The language used by Bracton, and the probabilities, indicate that this device was brought in from the civil law. In I Bract. (Rolls Ed.) 146, certain forms of conditional giants are openly derived from the civil law. & I Bract. (Rolls Ed.) 160, ad fin.
 * Glanv., lib. x. c. 6.
 * I Bract. (Rolls Ed.) 156, 160; 4 ib. 258: " Creditor incipit possidere in feodo . ..