Page:The New International Encyclopædia 1st ed. v. 07.djvu/198

* EQUITABLE MORTGAGE. EQUITY. ^Srf difficulty was the fart that all. £lHe?d to " vatid Cn h jur 'action, in at law were necessarily two-sided controversies,* w"ich - « between private indi- wb dch-^ judgment ^ndered ^l^Jr*. ^ai^d^ndSa «^of equ ftTiffiJ for the settlement of a .. gS title to the property r, | »™^£dta J^ r ' in the mortaaaor as well as the right of posses- eral or distinct interests. I he Chancellor ( Keeper s°on ttetaK oTthe ... • mere of the King's Conscience'), as administrator of Xceable onlv in equity and justice upon conscientious grounds, and beuig m- lich not protected by any common'law proc- vested with the Kings prerogative to command But as "such a has, in jj priori! e claims of creditors of the mort- and mortis I h notice, and as instrument under the ling acts in the United State-- gives con- structive notice to all intending purchasers and -. it furnishes adequate security 1 intended to be protected thereby. Strictly speaking, the remedy by foreclosure, which is i.il and proper" process for ther enforcement of a legal, or ordinary, mortgage, is not appro- things to be done, possessed all the requisite power to remedy these defects of the common law. The Chancellor could and did command things, other than the payment of money, to be done. He could summon before him all the parties to a con- t rovers v. however numerous, and in a single pro- rmine and adjust the rights of all. It is upon these simple but fundamental distinc- tions that the differences between the law and equity systems are based. It must not be in- ferred that in modern equity rule and precedent are without significance. The principles of equity for the payment of the mortgage debt out of the is. As this process does not differ mate- rially from the in. idem statutory proceeding em- ployed ill New Yo,rk and some other States to is, in such jurisdictions, also applied to it. Sec lble Estate; Fokeclosi be; Mortgage; ,1 ies cited under the last of these title.-.. EQUITES, ek'wi-tez. See Ktji kstriax Order. EQUITY (Lat. vequitas, fairness, equ from teguus, fair, equal). In law, a term some- used as synonymous with natural justice, as distinguished from the fixed and technical rule- of law. In its technical sense the term signifies the Bystem of jurisprudence originated and applied by the English t'..urt of Chancery, and in the United States applied by various courts exercising a similar jurisprudence. 'y jurisprud as a whole con i ales a ad docl tines which, how- presenl a certain homogeneity due to three .1 Hi factoi - common to their develop ill hi 'i son .v.- i 2) The kind of rcli.-f afforded, the courl of chancers oi», as dial inguished from the in law, which acted iti rem. (3) I he .il.jc.-t of, or rat 1. .-ion for, ' tern. This »;h the necessity of mitigating the riu'or of the common law system, by preventing the inequitable application of rule- . bj affording a remedy when there ia~ no remedy nt law, or when the legal remedy, if any. was i I rights recognized a nd coi respond- roi i.le.l. by the English co ■n law were early re tricted to those ob >le by a limited number oi foi m of ael ion ' ot SIUN 1. l . Pi I Ml > remedy ai common law it was frequently inadequate, owing the court- of common law. These principles are now fixed, and can only be changed by legislative action. For further discussion of the develop- ment of equity jurisprudence, see Chancery. From the very nature of equity jurispru- dence it follows that the jurisdiction of courts of equity is as extensive and as diversive as that of the courts of law whose remedies it was the aim of eqi.itx to supplement. It also follows from pplementary character of equity that as a prerequisite to the exercise of its jurisdiction there should be no adequate remedy at law. which may iv-ult cither from the tact that the legal remedy, because of it- nature, cannot effect com- plete justice or that there is a right which courts of equity recognize as such, for wjiieli they will i. -lief, but for which there is no legal remedy of any kind. 'I'll.- jurisdiction of equity may be classified with reference to the jurisdiction of court- of l.i w as (a) concurrent, (b) supplementary ..r elusive. Jurisdiction is said to ' where courts both of law and equity have jurisdiction over the subject matter but the exercise of jurisdiction by one court excludes the e of jurisdiction by the other. Thus, in case of breach of contract, the other party may recover damages at law, or, in a proper case, lie mac seek specific performance of the con- tract in equity: the choice of one remedy excludes her. Jurisdiction is supplemental when it affords a renn-.ly in addition to. but not exclusive of, a legal remedy. Thus, the right of the mi ' in in equity and the juris- diction of equity over legal waste are examples of supp jurisdiction. Jurisdiction is . when equity affords relief for which nig legal remedy : or. stated iii dill- hen equitj recognizes and proteel i ;i ed .i law. es, trusts, equitable easements, and equitabl
 * r the tights of suli~.Min.-nt
 * legal mortgage, the term foreclosure