Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/233

 7. SCRUTTON: ROMAN LAW INFLUENCE 219 the condition being that the land should revert to the grantor on payment by a certain day of the money lent. If not, the land was discharged from the condition and became absolutely vested in the mortgagee. But the Civil law regarded the debt intended to be secured, and not the land, as the principal; payment of the principal debt at any time would therefore release the accessory security on the land : the creditor, if not in possession of the land, could only sell it under a decree from the Praetor, and tender of the amount due before the decree of sale released the land. This construction, more lenient to mortgagors, was, under Charles I., adopted by the Chancery, who allowed an " equity of redemption " to the mortgagee within a reasonable time, though after the day on which, according to the Common law, the land would be forfeited for non-payment. To maintain their jurisdiction against both the Common law judges and the debtors them- selves, the Chancellors held void any conditions in the loan by which the borrower lost his " equity of redemption." And this is similar to if not derived from a constitution of the Emperor Constantine, which expressly rendered such stipula- tions void. ^ We can thus trace the altered view of Mort- gages, the necessity for foreclosure, and the protection of the equity of redemption, as established in the Court of Chancery, to the Civil law. In the construction of legacies and documents, the Chan- cellors have availed themselves freely of Roman rules. ^ The Chancery had no original jurisdiction in testamentary mat- ters, and therefore felt bound to adopt the rules of the Ecclesiastical Courts, which were those of the Civil law. In Hurst V. Beach ^ the Vice-Chancellor directed the opinion of civilians to be taken as to the admissibility of evidence in a case as to legacies, and on the practice of the Ecclesiastical Courts. In Hooley v. Hatton,^ where the question was whether two legacies to the same person in a will and codicil were cumulative or substitutive, the case was argued with citations from the Civil law; and Lord Thurlow, in his judg- » Cod. 8, 34, 3. • Spence, i. 518. ,523. 566. • 5 Mad. 351, 357, 360. • Cited in Ridges v. Morrison, 1 Brown. Ch. C. 389.