英文法律词典 E-20

EQUITY¹. In the early history of the law, the sense affixed² to this word was exceedingly vague and uncertain. This was owing, in part, to the fact, that the chancellors³ of those days were either statesmen or ecclesiastics⁴, perhaps not very scrupulous⁵ in the exercise of power. It was then asserted that equity was bounded by no certain limits or rules, and that it was alone controlled by conscience and natural justice. 3 Bl. Com. 43-3, 440, 441.

2. In a moral sense, that is called equity which is founded, ex oequo et bono, in natural justice, in honesty, and in right. In an enlarged. legal view, "equity, in its true and genuine meaning, is the soul and spirit of the law; positive law is construed⁶, and rational law is made by it. In this, equity is made synonymous with justice; in that, to the true and sound interpretation⁷ of the rule." 3 Bl. Com. 429. This equity is justly said to be a supplement to the laws; but it must be directed by science. The Roman law will furnish him with sure guides, and safe rules. In that code will be found, fully⁸ developed, the first principles and the most important consequences of natural right. "From the moment when principles of decision came to be acted upon in chancery," says Mr. Justice Story, "the Roman law furnished abundant materials to erect⁹ a superstructure, at once solid, convenient and lofty, adapted to human wants, and enriched by the aid of human wisdom, experience and learning." Com. on Eq. Jur. §23 Digest, 54.

3. But equity has a more restrained and qualified¹⁰ meaning. The remedies for the redress¹¹ of wrongs, and for the enforcement of rights, are distinguished¹² into two classes, first, those which are administered in courts of common law; and, secondly¹³, those which are administered in courts of equity. Rights which are recognized and protected, and wrongs which are redressed¹⁴ by the former courts, are called legal rights and legal injuries. Rights which are recognized and protected, and wrongs which are redressed by the latter courts only, are called equitable¹⁵ rights and equitable injuries The former are said to be rights and wrongs at common law, and the remedies, therefore, are remedies at common law; the latter are said to be rights and wrongs in equity, and the remedies, therefore, are remedies in equity. Equity jurisprudence may, therefore, properly be said to be that portion of remedial justice which is exclusively administered by a court of equity, as contradistinguished from that remedial justice, which is exclusively administered by a court of law. Story, Eq. §25. Vide Chancery, and the authiorities there cited; and 3 Chit. Bl. Com. 425 n. 1. Dane's Ab . h. t.; Ayl. Pand. 37; Fonbl. Eq. b. 1, c. 1; Wooddes. Lect. 114 Bouv. Inst. Index, h. t.

EQUITY, COURT OF. A court of equity is one which administers justice, where there are no legal rights, or legal rights, but courts of law do not afford a complete, remedy, and where the complainant has also an equitable right. Vide Chancery.

EQUITY OF REDEMPTION. A right which the mortgagee of an estate has of redeeming¹⁷ it, after it has been forfeited¹⁸ at law by the non-payment at, the time appointed of the money secured by the mortgage to be paid, by paying the amount of the debt, interest and costs.

2. An equity of redemption is a mere¹⁹ creature of a court of equity, founded on this principle, that as a mortgage is a pledge for securing the repayraent of a sum of money to the mortgagee, it is but natural justice to consider the ownership of the land as still vested in the mortgagor, subject only to the legal title of the mortgagee, so far as such legal title is necessary to his security.

3. In Pennsylvania, however, redemption is a legal right. 11 Serg. & Rawle, 223.

4. The phrase equity of redemption is indiscriminately, though perhaps not correctly applied²⁰, to the right of the mortgagor to regain²¹ his estate, both before and after breach²² of condition, In North Carolina by statute²³ the former is called a legal right of redemption; and the latter the equity of redemption, thereby²⁴ keeping a just distinction between these estates. 1 N. C. Rev²⁵. St. 266; 4 McCord, 340.

5. Once a mortgage always a mortgage, is a universal rule in equity. The right of redemption is said to be as inseparable from a mortgage, as that of replevying from a distress²⁶, and every attempt to limit this right must fail. 2 Chan. Cas. 22; 1 Vern. 33, 190; 2 John. Ch. R. 30; 7 John. Ch. R. 40; 7 Cranch, R. 218; 2 Cowen, 324; 1 Yeates, R. 584; 2 Chan. R. 221; 2 Sumner, R. 487.

6. The right of redemption exists, not only in the mortgagor himself, but in his heirs, and personal representatives, and assignee, and in every other person who has an interest in, or a legal or equitable lien²⁷ upon the lands; and therefore a tenant²⁸ in dower, a jointress, a tenant by the curtesy, a remainder-man and a reversioner, a judgment²⁹ creditor³⁰, and every other incumbrancer, unless he be an incumbrancer pendente lite, may redeem¹⁶. 4 Kent, Com. 156; 5 Pick. R. 149; 9 John. R. 591, 611; 9 Mass. R. 422; 2 Litt. R. 334; 1 Pick. R. 485; 14 Wend. R. 233; 5 John. Ch. R. .482; 6 N. H. Rep. 25; 7 Vin. Ab. 52. Vide, generally, Cruise, Dig. tit. 15, c. 3; 4 Kent, Com. 148; Pow. on Mortg. eh. 10 and 11; 2 Black. Com. 158; 13 Vin. Ab. 458; 2 Supp. to Ves. Jr. 368; 2 Jac. & Walk. 194, n.; 1 Hill. Ab. c. 31; and article Stellionate.