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Paper read by Thomas Carroll, of Tacoma.


Mr. President and Gentlemen of the Bar Association:

The doctrine of the equity of redemption first began to be mooted in the reign of Elizabeth. It was one of the outgrowths of the long struggle in England for predominance between the laws of Rome and the laws of England, -a struggle beginning in the twelfth century with the constitution of Clarendon, and the spilling of the blood of Thos. A. Becket, and continuing down to the devising of the writ of subpoena, in the fourteenth century, when, the controversy merges into that long contest, with the constantly developing powers of the Chancery, which was finally settled by the intervention of James I. in 1616. When Ellesmere was on the woolsack, Thomas Throckmorton exhibited a bill in chancery against Sir Moyl Finch, for relief against a judgment, at law, rendered upon technical forfeiture. Sir Edward Coke, on behalf of his client, demurred to the bill; thus raising the simple issue whether after judgment at law equity could interfere. Elizabeth was herself interested in the case as Finch was her own grantee. Ellesmere, however, in accordance with his well known principles, had clearly manifested his intention of over-ruling the demurrer. He might, however, have presumed, if he had not known her majesty so well, that her interest would cause her to keep her hands off; but he had stronger reasons to believe she would restrain herself from taking any action against his jurisdiction, because but a few years before in the case of Sergeant Heal she publicly disgraced her judges, for interfering with the jurisdiction of the Chancellor. But in Throckmorton vs. Finch she

had another reason to interfere than mere business reasons, —a woman's reason, a reason for which the "imperial votaress" never failed to act and never failed to humiliate when she acted. Betty Throckmorton, a sister of the plaintiff, had been one of her maids of honor and, by her imprudent conduct, had brought scandal upon the Court. No less distinguished a name had been connected with that of Betty's in the affair than that of Sir Walter Raleigh's, —he who at his first meeting with Elizabeth had shown her the extreme courtesy of laying his cloak in the mud to protect her imperial feet, and who afterwards became one of Elizabeth's lovers. The imprisonment of the culprits in the Tower might have satisfied her indignation, if their subsequent intermarriage had not enlarged the slight to herself.

But she knew that the fight between the Courts had been long and stubborn; that the contest was still as heated as in the days of the second Henry; that even Parliament had taken its hand in the fight; that even when she had conferred a new dignity upon Lord Ellesmere the very wits of Westminster Hall, in allusion to his setting aside in equity the judgment of the law Courts, had converted by abominable pun the honorable title of Viscount Brackley to Viscount "Break-Law; she knew too that the fight had kindled such popular excitement that even the Globe Theatre, a few months later, resounded to the plaudits of the pit and groundlings when fat and greasy Falstaff, with unctious humor, after his return from Gade Hill, and the hacking of his sword, got off that now venerable gag in that greatest of all scenes,-"if the Prince and Poins be not two arrant cowards, there's no equity stirring;" so when the Attorney-General laid before the Queen the state of the case, she knew that Betty Throckmorton's brother was on the highroad to success in her Court of Chancery, and that she and her grantee, Finch, would lose their case unless Throckmorton could be tripped in some way. One way was open under the constitution and the laws,-a reference of the demurrer to all the Judges of England, and she knew

how their opinion stood. They were the same Judges who had already passed upon the title in the Exchequer and the Exchequer Chamber. The order of reference bears date May 28th, 1597. On the 15th of November following, the decision sustaining the demurrer was announced by the Chancellor in open Court, and that ended the case.

It did not, however, end the controversy. Nine days after this decision of the Judges was announced by the Chancellor, a new and amended bill was filed in the suit of John and Mary Shakespeare vs. Edmund Lambert, then already pending in Chancery, wherein the object of the suit was the redemption of a mortgage after alleged legal forfeiture. There was one having a pecuniary interest in this suit, who was born on the banks of the Avon, who was reared in the shade of the forest of Arden, who was now in London, and had already made for himself a name as a player and a playwright. I can easily believe that he was watching these proceedings with the closest scrutiny. The property mortgaged and for which redemption was sought was his mother's maiden "Asbies" estate. The defendant, Edmund Lambert, was his mother's brother-in-law; the plaintiffs were his father and mother. This man had written and adapted many plays before this time. He now wrote another and astonished the world by the dramatic interest he infused in the story of the Jew refusing the right of redemption to that kindest hearted merchant of Venice. More than the reason and the logic of the woolsack, the play inoculated the English speaking world with this equitable doctrine. In our own day and generation we have seen a novelist accomplish similar result in another direction. Shakespeare wrote the Merchant of Venice to arouse the world against the evils of the common law doctrine; Harriet Beecher Stowe, Uncle Tom's Cabin, to arouse the world against the sin of slavery. It might be remarked in passing that Shakespeare seems never to have forgiven Sir Edward Coke for suggesting to Elizabeth the reference to the Judges. Years afterwards he had the groundlings screaming at a gag on that learned gentleman. It will be

recollected that Coke made himself sublimely ridiculous by his vulgar abuse of Raleigh, when prosecuting the latter for treason; that after a free use of the pronoun "thou" in connection with such epithets as monster and viper, he turned on Raleigh ferociously with the silly outburst which, unfortunately for the great lawyer's reputation, became the talk of the town, and which has since become immortal, "For I thou thee thou traitor." It is impossible at this late day to read the scene in Twelfth Night where Sir Toby Belch gives his suggestions to Sir Andrew Aguecheck in regard to that most ridiculous challenge to Viola without laughing till we cry,-it is so supremely funny. But when Sir Toby adds, "If thou thou'st him some thrice, it shall not be amiss," we can hear the groundlings, the attorney's clerks, the leather jerkined apprentices, as well as the nobility who then lived in Drury Lane and those gentlemen of the Court with peaked starched beards, who wore doublets and slashed hose, who went to the play sporting rapiers, with roses on their shoes and plumes in their hats,-we can hear them all give an additional yell of delight in the midst of this screaming farce to the discomfiture of the great lawyer, who had resisted so successfully the equitable doctrine. But a few years later Elizabeth paid her debt to time and mortal custom, and then the reasoning of the Chancellor, the effect of the play, and the intervention of James gave the doctrine some recognition, and it afterwards, towards the close of the reign of Charles II, became established as a right in the mortgagor.

At a later period in the case of Casberne vs. Scarfe, it was held that a mortgagee had an estate in the land after a breach of the contract. This has continued to be the law of England down to the present time.

Under the old common law, the procedure was by ejectment, upon proof of breach of the contract; but equity looked upon this as unconscionable, and established as a proper procedure for the enforcement of this kind of a contract, a plan that would give adequate relief to the mortgagee and at the same time, provide, for the protec

tion, of the debtor's property from confiscation, waste and sacrifice. In our own land the legislatures of the several states, with jealous care, have not only recognized the rules of equity in these cases, but have each added to them, additional protection; and while they differ, some of them very materially, the purpose of all is the same, that is, to provide equitable relief to the debtor, and at the same time to protect the creditor. Many of the states provide for redemption after sale, while others do not. Among those that do not recognize the right of redemption after sale are Pennsylvania, Ohio, New York, New Jersey, Missouri, Maryland, North Carolina and Kentucky..

In the state of Washington, as in many of the other states, we have three steps or stages of redemption: first, the legal right of redemption; second, the equitable right, and third, the statutory limitation. The first is the right to redeem before breach of the conditions of the contract; the second, the equity of redemption that exists between the time the debt becomes due and the sale of the property mortgaged to secure its payment; the third, the statutory provision preserving the right of redemption after sale. The two first named stages of redemption have become so firmly fixed and established that equity will not recognize a contract waiving either of them. This is because, by the application of the broad principle of equity to such cases, it has been determined that a contract of mortgage of real property to secure the payment of a debt was never intended as a sale, but only as a security, and that to transform it into a conditional sale, would be to permit the unconscionable act of appropriating one's property for an inadequate consideration; and hence the establishment of the rule, that a mortgage of property, for security, must be foreclosed by proceedings in equity, the property mortgaged sold, and the proceeds applied in payment of the debt; and the balance remaining, if there be any, returned to the mortgagor, during which time the mortgagor may redeem by paying the sum secured, with costs. Equity stops here and refuses to further interfere, having determined that

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