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  • D. P. Waddilove

For more than two and half centuries, the case of Emmanuel College v Evans (1626) has been understood as a leading case for the origin of the principal doctrine of mortgage law: the equity of redemption. A closer inspection shows that it has nothing to do with the equity of redemption. This article examines Emmanuel College to see what it was actually about and where this leaves the history of mortgages in equity. In so doing, the article demonstrates the status of Emmanuel College as a leading case to be invalid, and exposes a serious flaw in the methodology of much historiography on mortgages and of early-modern equity more generally. The article also shows how a leading case can obtain its position when it does not stand for its purported proposition. And it provides a nearly unique window into the nature of the Chancery court record and development of equity thanks to a serendipitous documentary survival.

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1 Yale, D.E.C., “Introduction: An Essay on Mortgages and Trusts and Allied Topics in Equity,” in Lord Nottingham's Chancery Cases, vol. 2 (79 Selden Society 1961), 8 (citing W. Blackstone, Commentaries on the Laws of England, vol. III (London 1768), 436–37).

2 (1626) 1 Chan. Rep. 18; 21 E.R. 494.

3 While later law would distinguish the equity of redemption (the mortgagor's equitable estate in the land) and the equitable right to redeem (the mortgagor's right to redeem late), no such distinction could exist until the equity of redemption had formed fully into an estate. Thus no such distinction existed in the early seventeenth century. Indeed, the primary characteristic of what would become the equity of redemption was at first the right to redeem late. Cf. Burns, note 21 below, at 47.

4 See note 85 below.

5 1 Chan. Rep. 18; 21 E.R. 494. A nearly indecipherable reference to Emmanuel College had previously appeared in Tothill in 1649; see note 28 below.

6 S. Carter, Lex Vadiorum, the Law of Mortgages (London 1706).

7 Ibid., at pp. 4, 17, 18, 150, 169, 172, 173.

8 The bookseller was John Walthoe. S. Carter, Lex Custumaria, or, A Treatise of Copy-Hold Estates in Respect of the Lord, Copy-Holder (London 1696); S. Carter, Treatise Concerning Trespasses Vi et Armis (London 1704).

9 The second and third editions retained the same title and were published in London in 1728 and 1737 respectively.

10 C. Viner, General Abridgement of Law and Equity, vol. 15, 1st ed. (London 1742); 2nd ed. (London 1793).

11 J.H. Baker, Introduction to English Legal History, 4th ed. (London 2002), 186.

12 Viner, note 10 above at p. 440 (emphasis original).

13 Ibid., at p. 461 (emphasis original).

14 R.H. Coote, Treatise on the Law of Mortgage, 1st ed. (London 1821), 20.

15 L.A. Jones, Treatise on the Law of Mortgages of Real Property, vol. I (Boston 1878), 5.

16 G. Spence, Equitable Jurisdiction of the Court of Chancery, vol. I (London 1846), 603; see also, W. Cruise, Digest of the Laws of England Respecting Real Property, vol. II (London 1804), 85.

17 Stone, H.F., “The ‘Equitable Mortgage’ in New York” (1920) 20 Columbia L. Rev. 519, at 520.

18 Home Building & Loan Association v Blaisdell (1934) 290 U.S. 398, 447 n. 18.

19 R.W. Turner, The Equity of Redemption (Cambridge 1931).

20 Ibid., at p. lxv.

21 Recent courts and scholars continue to cite Turner, see e.g., Cukurova Finance Int'l Ltd. v Alfa Telecom Turkey Ltd. [2013] UKPC 20 at [18]; F. Burns, “Clogs on the Equity of Redemption”, in J. Glister & P. Ridge (eds.), Fault Lines in Equity (Oxford 2012), 45 at pp. 47–48, 50–51, 56; Berman, A.R., “Once a Mortgage, Always a Mortgage – The Use (and Misuse of) Mezzanine Loans and Preferred Equity Investments, (2005) 11 Stanford Journal of Law Business & Finance 76, at p. 8687; Bamforth, N., “Lord MacNaughten's Puzzle: The Mortgage of Real Property in English Law” (1996) 49 Current Legal Problems 207, 215–16; Yale, note 1 above at pp. 32–33.

22 See note 85 below.

23 Turner, note 19 above at p. 28 (citing 21 Jac. I, c. 19 s. 13 [Turner meant to cite s. 12]).

24 Ibid.

25 Turner is more cautious than to claim that Emmanuel College acted as precedent to establish the new right; he claimed only that it is the first case where the equity of redemption seems to operate. And though his argument apparently establishes a precise date for the doctrine in 1625, the year he thought Emmanuel College came down, he backtracks from such precision, putting the date in a fifteen-year range from 1615 to 1630. Turner, note 19 above at pp. 30, 27.

26 See note 20 above.

27 The three prior collections of Chancery reports were: Tothill; 21 E.R. 105, first printed 1649, reprinted 1671; Cary; 21 E.R. 1, first printed 1650, reprinted 1665; Choyce Cases; 21 E.R. 66, first printed 1652.

28 See, e.g., a ‘report’ of the decree by Lord Keeper Williams, eventually waived by the parties for re-hearing, in Emmanuel College v Evans itself: Tothill 3; 21 E.R. 105, containing in toto: “Magister Coll Emanueli contra Ewens concerning an advowson which passed but by general words decreed in equity, in Hil. 21 Jac. li. A. fo. 572.” On early Chancery reports generally see M. Macnair, “The Nature and Function of the Early Chancery Reports” in Law Reporting in Britain (London 1995).

29 See, e.g., Jones, N.G., “Wills, Trusts and Trusting from the Statute of Uses to Lord Nottingham” (2010) 31 Journal of Legal History 273298; Jones, N.G., “The Use Upon a Use in Equity Revisited” (2002) 33 Cambrian Law Review 6780; N.G. Jones, “Tyrrel's Case (1557) and the Use Upon a Use” (1993) 13 Journal of Legal History 75–93; see also J. Baker, H., “The Use Upon a Use in Equity 1559–1625” (1977) 93 L.Q.R. 33.

30 Yale, note 1 above.

31 See ibid., at 32–33.

32 A.K.R. Kiralfy, Potter's Historical Introduction to English Law, 4th ed. (London 1958), 621. (emphasis original).

33 A.W.B. Simpson, History of the Land Law, 2nd ed. (Oxford 1986), 244.

34 Baker, note 11 above at p. 313.

35 C. McNall, “Mortgage; English Common Law” in Oxford International Encyclopedia of Legal History, vol. 4., ed. Stanley N. Katz (Oxford 2009), 189.

36 U.S. v. Porath, (2011) 764 F. Supp. 2d 883, at 890 (E.D. Mich.).

37 B. McFarlane, N. Hopkins, S. Nield, Land Law: Texts, Cases, and Materials (Oxford 2012), 1062 n. 42; Burns, note 21 above, at p. 48 n. 16.

38 See L. Alcock, Cadbury Castle, Somerset: The Early Medieval Archaeology (Cardiff 1995), Preface, 5–6. Figures of relevance to Emmanuel College also knew the legend: in 1583, Francis Hastings reported to his brother, the third earl of Huntingdon, as part of a land survey that the site was reputed to be Camelot. C. Cross, ed., The Letters of Sir Francis Hastings 15741609 (Frome: Somerset Record Society vol. LXIX, 1969), 29.

39 Victoria County History, Somerset, draft of ‘North Cadbury Religious History, [accessed 2 December 2013] p. 9.

40 Victoria County History, Somerset, draft of ‘North Cadbury Manors and Estates’, [accessed 2 December 2013] p. 5.

41 C 3/342/8 document 4. See generally, “Advowzen” in John Cowell, The Interpreter, 2nd ed. (London 1637).

42 See, C. Cross, The Puritan Earl (London 1966), 108–11.

43 Ibid., at pp. 324–27.

44 HAD 2777.

45 ECA Box 8.A3, A4. The other advowsons were Aller, Somerset; Loughborough, Leicestershire; and Puddletown, Dorset.

46 L.L. Ford, “Mildmay, Sir Walter (1520/21–1589)”, Oxford Dictionary of National Biography (Oxford 2004); online edn, Jan 2008 [, accessed 2 December 2013]; Cross, note 42 above at pp. 41, 106–08.

47 27 Hen. VIII c. 10.

48 SRO A\CFO/1; HAD 2778; CP 25/2/206/28 Eliz I Trin/5; Cross note 42 above at p. 314.

49 C 78/72/19; C 33/81 f. 439v; C 33/82 f. 446v; see also C 33/81 f. 161v; C 24/218 box 1/7.

50 The following is based on C 78/72/19.

51 The original mortgagee, Ambrose Smyth, died before redemption. His son and executor, Francis, inherited the mortgage. The Earl carried on the same financial relationship with Francis that he had with Ambrose. But Francis died shortly after his father, and the combined Smyth estate went to Francis's widow Elizabeth. She soon married Mr. (later Sir) Thomas Freke, and he controlled the estate by the time that it came to litigation in Earl of Huntingdon v Freke, which accounts for the name of the lead defendant in the case. See C 24/218 box 1/7.

52 Simpson, A.W.B., “The Penal Bond with Conditional Defeasance” (1966) 82 L.Q.R. 392, at 404; Henderson, E.G., “Relief from Bonds in the English Chancery: Mid-Sixteenth Century,” (1974) 18 American Journal of Legal History 298, at 300-01; A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford 1975), 93.

53 Earl of Huntingdon v Freke, C 78/72/19, membrane 39, line 102-membrane 40, line 15.

54 Ibid., at membrane 41, lines 30–68.

55 C 78/113/24 lines 22–28.

56 For further discussion see Yale, note 1 above at pp. 15060.

57 C 78/113/24 lines 44–52.

58 Ibid., at lines 31–32; Cross, note 42 above at p. 43.

59 PROB 11/91 f. 246; C 142/257/62 lines 16–17. Later difficulty about Baron Ewens's devise of North Cadbury would lead to litigation in Court of Wards that required resolution by both chief justices with the chief baron. Ewens's Case (1611) Ley 34, 80 E.R. 610.

60 C 78/113/24 lines 39–42.

61 Ibid., at lines 33–36.

62 C 78/113/24; C 33/97 f. 324v, C 33/98 f. 350; C 33/99 f. 244, C 33/100 f. 206; C 33/99 f. 381v, C 33/100 f. 358v.

63 C 78/113/24 lines 44–52.

64 Ibid., at lines 83–87.

65 Ibid., at lines 82–83.

66 C 3/342/8 document 4, lines 14–15.

67 See ibid., at lines 12–13.

68 Ibid., at line 17; C 3/342/8 document 3, lines 38–39, 69; C 3/398/14, line 31; C 33/143 f. 806.

69 C 3/342/8, lines 72–73, 109; C 3/342/8 document 4, lines 18–19.

70 C 3/342/8 document 4, lines 20–21; C 33/143 f. 806.

71 C 33/143 f. 806.

72 C 3/342/8 document 4.

73 C 33/143 f. 806; see “Quare Impedit” in Cowell, above note 41.

74 C 33/144 f. 1374. The quare impedit nevertheless technically continued. In the final decree of Emmanuel College, the defendants were ordered to confess the action on behalf of the College to strengthen the College's title. When they came to do so, a question arose in the Common Pleas as to whether the case had been properly continued, the action having been filed nearly four years previously. A report survives of that question. Phillips v Emanuel College (1627) Littleton 3-4, 124 E.R. 107-08.

75 C 3/398/14, line 86, cf. line 81; cf. C 33/342/8 document 3, lines 87–90.

76 C 3/342/8 document 4.

77 C 33/145 f. 527v; C 33/146 f. 685. This decree is mentioned briefly in Tothill, note 28 above.

78 C 33/143 f. 806; C 33/144 f. 847.

79 C 33/147 f. 1047; C 33/148 f. 1086v is only a cross reference.

80 Ibid.

81 Ibid.

82 See C 33/149 f. 980; C 33/150 f. 801; see also note 84 below.

83 Coventry is named as the College's counsel as “Mr. Attorney General” at a hearing of 17 June 1625, C 33/146 f. 1047.

84 On 24 November 1625, Coventry “ordered that Counsel on both sides shall be heard touching the premises sometime the next term”; C 33/149 f. 97; C 33/150 f. 121v. The following 21 February 1626, the defendants joined in the College's request for a rehearing, but Coventry refused to set a date for it unless he had both side's request in writing; C 33/149 f. 501v; C 33/150 f. 594. Even when he finally issued a new decree, Coventry remained reluctant. See note 115 below.

85 C 33/149 f. 980; C 33/150 f. 801.

86 (1626) 1 Chan. Rep. 18; 21 E.R. 494.

87 Turner misunderstood this when he wrote The Equity of Redemption. Yale, note 1 above at p. 32 n. 6.

88 C 33/149 f. 980; C 33/150 f. 801.

89 ECA Box 8.C2.

90 CUL MS Dd.3.87.14. I am grateful to Professor David Ibbetson for calling this manuscript to my attention. It has been suggested that “[t]he manuscript may perhaps be Williams's autograph”: J.H. Baker, Catalogue of English Legal Manuscripts in Cambridge University Library (Woodbridge 1996), 25. Internal evidence nevertheless shows that it must be Coventry's, not Williams's; see note 115 below. Numerous corrections throughout the manuscript tend to suggest that it is not a copy as a copy presumably would be cleaner. The possibility cannot be eliminated, however, that the notes are not from Coventry's own pen. Someone who heard Coventry's decree delivered orally, and who wrote in the first person as though he or she were Coventry could be the author. Irrespective of who exactly wrote them, the notes appear contemporary with the decree and contain Coventry's reasoning.

91 CUL MS Dd.3.87.14 at p. 1 lines 28-p. 2 line 1. The word “stance” is uncertain.

92 Ibid., at p. 2 lines 14–15.

93 Ibid., at lines 3–5.

94 Ibid., at lines 17–20.

95 Ibid., at lines 24- p. 3 line 1.

96 Ibid., at p. 3 line 2.

97 Ibid., at lines 2–9.

98 Ibid., at lines 22–25.

99 Ibid., at p. 3 lines 19–20.

100 Ibid., at p. 4 lines 17–18.

101 Ibid., at lines 25-p. 5 line 3.

102 See, e.g., J.J. Powell, Treatise on the Law of Mortgages, vol. I, 3rd ed. (London 1791), 381; Yale, note 1 above at pp. 160–63.

103 CUL MS Dd.3.87.14 at p. 5 lines 4–6.

104 SRO A\CFO/1; CP 25/2/206/28 Eliz I Trin/5.

105 CUL MS Dd.3.87.14 at p. 6 lines 5–8.

106 Presumably this was Thomas Crane MA who became rector of South Cadbury in 1587. SRO D\D\Vc/73, D\D/breg/17, D\D/breg/31; CUL MS Dd.3.87.14 at p. 5 lines 7–16.

107 CUL MS Dd.3.87.14 at p. 6 lines 9–22.

108 Ibid., at lines 24–32.

109 Ibid., at p. 5 lines 27-p. 6 line 1.

110 Ibid., at p. 7 lines 1–4.

111 Ibid., at lines 5–9.

112 Ibid., at lines 9–14.

113 Ibid., at lines 18–19.

114 Ibid., at lines 19–25.

115 Ibid., at p. 8 lines 1–6. Though this entailed absolute victory for the College, in something of a non sequitur, Coventry immediately continued:

Therefore I should have been glad my motion might have taken effect that all parties would have submitted to the Decree of my predecessor & I could have wished it still but since you have on both sides waived the Decree: For the right of the Case I have delivered my Opinion.

Ibid., at lines 6–10. Absolute victory for the College obviously differed from Williams's “middle course”. One wonders if Coventry felt awkward decreeing the same position he had argued for his former client.

116 One other opinion of Coventry's appears to have survived, equally mysteriously, from a case called Lownes Case. CUL MS Mm.6.69.17. The Lownes Case manuscript is in two different hands, the second of which is almost certainly the distinctive hand of one of the Registrars' clerks who frequently wrote in the Register A-books at the time. That, plus the fact that the manuscript has almost no corrections, suggests it may be a copy. In what may be no more than a remarkable coincidence, Lownes Case, sub. nom. Herbert contra Lowns, is the very next case in Reports in Chancery after Emmanuel College v Evans. See 1 Chan. Rep. 22, 21 E.R. 495.

117 C 33/149 f. 980; C 33/150 f. 801.

118 The defendants were ordered to convey all their right in the advowson to the College and to make a presentation of the College's preferred candidate, which Sir Robert Rich, one of the Chancery masters, was to supervise.

119 See C 33/144 f. 1374; the A-book copy, which should be at C 33/143 f. 1251, is missing along with all folios 1248-66.

120 1 Chan. Rep. 18-21; 21 E.R. 494–95.

121 1 Chan. Rep. 18 at 19; 21 E.R. 494 at 495. A blackline of the changes from the record to the report shows the specific changes:

of purpose to convey the advowson to the said Sir Francis Hastings During the life of the Earl only And it stands proved by the depositions of several witnesses that the said Sir Francis Hastings often affirmed that after the death of the said Earl the said College ought to have and present to the said advowson And this Court conceived that the said Advowson being Leased not by special name…

1 Chan. Rep. 18 at 21; 21 E.R. 494 at 495:

would not upon his second purchase have left the said Advowson out of the conveyancedeed and fine if he had conceived himself to be a clear purchaser of thought he had purchased the said advowson, . neither was there any convenient proof on the defendant Ewens's behalf that his said uncle or the said Sir Francis Hastings did particularly bargain for the said Advowson nor had any eye upon the advowson at the time of their purchase, So as this Court is of opinion…

122 1 Chan. Rep. 18 at 21; 21 E.R. 494 at 495 (emphasis added).

123 C 33/149 f. 980; C 33/150 f. 801 (emphasis added).

124 See Baker, note 11 above at pp. 106–07.

125 1 Chan. Rep. 18 at 19; 21 E.R. 494 at 495. A blackline of the changes from the record to the report shows the specific changes:

for that it had been absurd in the said grant to reserve unto himself an estate for life after 500 years. And it further appeared unto this court that a question growing in this Court after the purchase of the said Sir Francis between the said Earl and the executors of the said Ambrose Smith touching the said Lease of 500 years, And the matter coming to hearing in this court in the 33rd year of the late Queen Elizebeth It appeared that all the money which the said Smith had paid for the said Earl had been repaid to the said Smith, save only the said sum of 10li 6s 8d, which was decreed to be paid by the said Earl to the said Smith's executors and the Lease to be delivered up to the said Earl, or to be assigned to the said Earl or to such as he should appoint at the Earls charges as by the said decree now read appeareth and there uponthat the said lease was assigned by the said Earl to the said Mathewe EwensEwans the defendant' uncle.who was afterwards one of the Barons of the Exchequer in trust for the said Sir Francis Hastings.

126 1 Chan. Rep. 18, 20; 21 E.R. 495.

127 D. Sugarman & R. Warrington, “Land Law, Citizenship, and the Invention of ‘Englishness’: The Strange World of the Equity of Redemption,” in John Brewer and Susan Staves (eds.), Early Modern Conceptions of Property (London 1996), 114.

128 This may at least be true under Lord Keepers who were lawyers, viz. not Bishop John Williams (LK 1621-25) or courtier Sir Christopher Hatton (LC 1587-91).

* The author would like to thank Professor Sir John Baker, Mrs. Rochelle Charnin, Professor Thomas Green, Dr. Neil Jones, Professor John Langbein, and Professor Christopher Lund for their comments on drafts of this article and its precursors, and Professor Robert Palmer and Dr. Susanne Jenks for their assistance with archival research, both in person, and through their efforts on behalf of the Anglo-American Legal Tradition website, For all dates, the year is taken to begin 1 January. Transcriptions from manuscripts have been rendered in modern orthography; punctuation and capitalisation are original. Unless otherwise noted, manuscripts are in The National Archives: Public Record Office. Other manuscript sources include: SRO for Somerset Record Office; ECA for Archives of Emmanuel College, Cambridge; CUL for Cambridge University Library; HAD for Hastings Deeds, Huntington Library, San Marino, CA.

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