Attendant terms

Long leases or mortgages so arranged as to protect the title powers of these trustees were generally to take possession of the estate, or to sell a part of the term if the portions were not duly paid. If the deed did not become ipso facto void upon payment of the portion, a release was necessary from the trustees to discharge the mortgage. If this was not given, the term became an outstanding satisfied term. The purchaser from the heir then procured an assignment of the term to trustees for his benefit, which then became a satisfied term to attend the inheritance, or an attendant term. These terms were held attendant by the courts, without any assignment, and operated to defeat intermediate alienations to some extent. There were other ways of creating outstanding terms besides the method by mortgage; but the effect and general operation of all these were essentially the same. By reason of the want of notice, by means of registration, of the making of charges, mortgages, and conveyances of lands, this mode of protecting an innocent purchaser by means of an outstanding term to attend the inheritance came to be very general prior to the 8 & 9 Vict. c. 112, which abolished all such terms as soon as satisfied. 1 Washb. R. P. 311; 4 Kent. 86.

In English law. Terms, (usually mortgages,) for a long period of years, as one thousand or two thousand years, which are created or kept outstanding for the purpose of attending, or waiting upon and protecting the inheritance.* 1 Steph. Com. 851.

— Thus, where land held in fee. mortgaged for a long term of years, (as a thousand years,) and upon the estate being sold, the mortgage is p^d off out of the purchase money, it is usual for the purchaser, (instead of taking a surrender of the term to himself, and so merging it in the inheritance,) to keep it on foot, and have it assigned to a trustee of his own nomination, in trust for himself, (the purchaser,) *' and to attend and protect the inheritance." The reason of this practice is, that the beneficial or equitable interest in a term assigned upon such a trust, follows (though a mere chattel,) all the limitations of the inheritance, — ^belongs to the heir or devisee of the new owner, and not to his executor or administrator, and is subject to the other incidents of a fee simple; so that, for all purposes of convenience, the case is the same as if it had merged into the inheritance; while on the other hand, it aJBTords him a security which he could not have had if a merger had actually taken place. For if it shomd afterwards turn out that prior to the purchase, but posterior to the creation of the term, there had been an intermediate alienation or incumbrance of the fee in favor of another person, to which the then trustee of the outstanding term had been no party, and of which the subsequent purchaser had had no notice when he took his conveyance, and paid his purchase money, he will be protected against it through the medium of the term^ which being the elder title, will also take the priority in point of legal eflfect. 1 Steph. Com, 851, 852. Terms may also become attendant by the mere construction of a court of equity. Id. 852. See 2 Crah Ve Real Prop. 529, § 1788, et seq. Burton's Real Prop. 276, pi. 860. Id. 439, pi. 1428. 4 Kent's Com. 86—98. In the United States, the doctrine of attendant terms is of little, practical value, terms for years being treated altogether as personal estate; which go in a course of administration, as chattel interests, without ^^7 suggestion of their being of the character of attendant terms. 4 Kent's Com. 98, 94. See 1 Hilliard's Real Prop. 346. And in England these terms have been, in a great degree, abolished by the late statute 8 & 9 Vict. c. 112.