214 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES
But if the title-deeds of an estate are, without even verbal communication, deposited by a debtor in the hands of the creditor, the mere fact of such deposit is enough to constitute the creditor a mortgage of the estate.
(b) An agreement that a creditor shall hold land at a fair rent to be retained in satisfaction of the debt, is a mortgage in equity but not in law.
(ii) Assignment —Legal and Equitable.
Legal. : (1) Assignment must be in writing under the hand of the assignor—signature of the agent not sufficient.
(2) The writing must contain a direction or order to the debtor by the creditor to pay the assignee.
(3) There must be express notice of assignment to the debtor.
Equitable: (1) The mode or form of assignment is immaterial provided the intention of the parties is clear. Assignment may be verbal.
(iii) Charge— Legal and Equitable,
(iv) Lease— Equitable and Legal,
(v) Servitude— Equitable and Legal.
Married Women’s Property
This illustrates how an equitable right can arise without the legal formalities of conveyance required for the creation of a legal right.
(1) At Common Law, husband and wife were one person, and the status of the wife merged in that of the husband. The result of this merger was that the husband became the absolute owner of her personal property and acquired the sole right of controlling and managing her real estate.
On her death he became absolutely entitled to any of her personal property that had not already been sold and to a life estate by courtsey in her fee provided a child had been born.
(2) Secondly, a husband could not make a grant to his wife directly or enter into a covenant with her, for to allow either of these things would have been to suppose her separate existence.
(3) The effect of marriage at Common Law was to make a man complete master of his wife’s property and to deprive her of contractual capacity.