Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Law of Mortgage
A MORTGAGE is the conveyance of an estate, by way of pledge, for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor, but in equity the mortgagor remains the actual owner, until he is debarred by his own default, or by judicial decree.
There is no branch of the law of real property which embraces a greater variety of important interests, or which is of more practical application. The different, and even conflicting views, which were taken of the subject by the courts of law and of equity, have given an abstruse and shifting character to the doctrine of mortgages. But the liberal minds and enlarged policy of such judges as Hardwicke and Mansfield, gave expansion to principles, tested their soundness, dispersed anomalies, and approximated the law of the different tribunals on this as well as on other heads of jurisprudence. The law of mortgage, under the process of forensic reasonings, has now become firmly established on the most rational foundations.
In the examination of so extensive a title, I shall endeavor to take a just and accurate, though it must necessarily be only a very general view of the subject, under the following heads:
- 1. Of the origin and general nature of mortgages.
2. Of the mortgagor’s estate and equity of redemption.
3. Of the estate and rights of the mortgagee.
4. Of foreclosure.
(1.) Of the origin and general nature of mortgages.
The English law of mortgages appears to have been borrowed, in a great degree, from the civil law; and the Roman hypotheca corresponded very closely with the description of a mortgage in our law. The land was retained by the debtor, and the creditor was entitled to his actio hypothecaria, to obtain possession of the pledge, when the debtor was in default; and the debtor had his action to regain possession, when the debt was paid, or satisfied out of the profits, and he might redeem at any time before a sale.1 The use of mortgages is founded on the wants and convenience of mankind, and would naturally follow the progress of order, civilization, and commerce. In the time of Glanville, the mortgage of lands, as security for a loan, was in use, though during the feudal ages it was doubtless under the same check with the more absolute alienation of the fee; and both the alienation and the mortgage of land were permitted only with the concurrence of the lord.2
The English books distinguish between a vadium vivum and vadium mortuum. The first is when the creditor takes the estate to hold and enjoy it, without any limited time for redemption, and until he repays himself out of the rents and profits. In that case, the land survives the debt; and when the debt is discharged, the land, by right of reverter, returns to the original owner. In the other kind of mortgage, the fee passed to the creditor, subject to the condition of being defeated, and the title of the debtor to be resumed, on his discharging the debt at the day limited for payment; and if he did not, then the land was lost, and became dead to him for ever.3 This latter kind of mortgage is the one which is generally in use in this country. The Welch mortgages, which are very frequently mentioned in the English books, though they have now gone entirely out of use, resembled the vivum vadium of Coke, or the mortuum vadium of Glanville; for though in them the rents and profits were a substitute for the interest, and the land was to be held until the mortgagor refunded the principal; yet if the value of the rents and profits was excessive, equity would, notwithstanding any agreement to the contrary, decree an account.4
There is a material distinction also to be noticed between a pledge and a mortgage. A pledge or pawn is a deposit of goods, redeemable on certain terms, and either with or without a fixed period for redemption. Delivery accompanies a pledge, and is essential to its validity. The general property does not pass, as in the case of a mortgage, and the pawnee has only a special property. If no time of redemption be fixed by the contract, the pawnor may redeem at any time; and though a day of payment be fixed, he may redeem after the day. He has his whole lifetime to redeem, provided the pawnee does not call upon him to redeem, as he has a right to do at any time in his discretion, if no time for redemption be fixed; and if no such call be made, the representatives of the pawnor may redeem after his death.5
As early as the time of Glanville, these just and plain principles of the law of pledges were essentially recognized; and it was declared, that if the pledge was not redeemed by the time appointed, the creditor might have recourse to the law, and compel him to redeem by a given day, or be for ever foreclosed and barred of his right. And if no time of redemption was fixed, the creditor might call upon the debtor at any time, by legal process, to redeem or lose his pledge.6 The distinction between a pawn and a mortgage of chattels is equally well settled in the English and in the American law; and a mortgage of goods differs from a pledge or pawn in this, that the former is a conveyance of the title upon condition, and it becomes an absolute interest at law, if not redeemed by a given time, and it may be valid in certain cases without actual delivery.7
According to the civil law, a pledge could not be sold without judicial sanction, unless there was a special agreement to the contrary; and this is, doubtless, the law at this day in most parts of Europe. The French civil code has adopted the law of Constantine, by which even an agreement at the time of the original contract of loan, that if the debtor did not pay at the day, the pledge should be absolutely forfeited, and become the property of the debtor, was declared to be void.8
While on this subject of pledges, it may be proper further to observe, that the pawnee, by bill in chancery, may bar the debtor’s right of redemption, and have the chattel sold. This has frequently been done in the case of stock, bonds, plate, or other personal property pledged for the payment of debt.9 But without any bill to redeem, the creditor may sell at auction, on giving reasonable opportunity to the debtor to redeem, and apprizing him of the time and place of sale; and this is the more convenient and usual practice.10 While the debtor’s right in the pledge remains unextinguished, his interest is liable to be sold on execution; and the purchaser, like any other purchaser or assignee of the interest of the pawnor, succeeds to all his rights, and be, comes entitled to redeem.11
The law of pledges shows an accurate and refined sense of justice; and the wisdom of the provisions by which the interests of the debtor and creditor are equally guarded, is to be traced to the Roman law, and shines with almost equal advantage, and with the most attractive simplicity, in the pages of Glanville. It forms a striking contrast to the. common law mortgage of the freehold, which was a feoffment upon condition, or the creation of a base or determinable fee, with a right of reverter attached to it. The legal estate vested immediately in the feoffee, and a mere right of re-entry, upon performance of the condition, by payment of the debt strictly at the day, remained with the mortgagor and his heirs, and which right of entry was neither alienable nor devisable. If the mortgagor was in default, the condition was forfeited, and the estate became absolute in the mortgagee, without the right or the hope of redemption.12
So rigorous a doctrine, and productive of such forbidding, and, as it eventually proved, of such intolerable injustice, naturally led to exact and scrupulous regulations concerning the time, mode, and manner of performing the condition, and they became all important to the mortgagor. The tender of the debt was required to be at the time and place prescribed, and if there was no place mentioned in the contract, the mortgagor was bound to seek the mortgagee, and a tender upon the land was not sufficient.13 If there was no time of payment mentioned, the mortgagor had his whole lifetime to pay, unless he was quickened by a demand; but if he died before the payment, the heir could not tender, and save the forfeiture, because the time was past.14 If, however, the money was declared to be payable by the mortgagor or his heirs, then the tender might be made by them at any time indefinitely after the mortgagor’s death, unless the performance was hastened by request; and if a time for payment was fixed, and the mortgagor died in the mean time, his heir might redeem, though he was not mentioned, for he had an interest in the condition.15 If the representatives of the mortgagee were mentioned in the feoffment, whether they were heirs, executors, or assignees, the payment could rightfully be made to either of them.16
The condition upon which the land is conveyed is usually inserted in the deed of conveyance, but the defeasance may be contained in a separate instrument, and if the deed be absolute in the first instance, and the defeasance be executed subsequently, it will relate back to the date of the principal deed, and connect itself with it, so as to render it a security in the nature of a mortgage. In order, however, to render the deed a security against subsequent purchasers and mortgagees, it is necessary that the deed and defeasance should be recorded together. An omission to have the defeasance registered, would operate to make the estate, which was conditional between the parties, absolute against every person but the original parties and their heirs.17 The practice of placing the conveyance in fee, and the condition or defeasance which is to qualify it, in separate instruments, is liable to accidents and abuse, and may be productive of injury to the mortgagor; and the Court of Chancery has frequently, and very properly, discouraged such transactions.18 This must more especially be productive of hazard to the rights of the mortgagor, in those states where the powers of a court of equity are very sparingly conferred, and where the character of an instrument of defeasance is to be determined upon the strict technical principles of the common law, and must take effect concurrently with the deed, as part of the one and the same transaction.19
In equity, the character of the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it such, and give to the mortgagor the right of redemption.20 A deed absolute on the face of it, and though registered as a deed, will be valid and effectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, and this would be the case though the defeasance was by an agreement resting in parol; for parol evidence is admissible to show that an absolute deed was intended as a mortgage, and that the defeasance has been omitted or destroyed by fraud or mistake.21
When it is once ascertained that the conveyance is to be considered and treated as a mortgage, then all the consequences appertaining in equity to a mortgage are strictly observed, and the right of redemption is regarded as an inseparable incident. An agreement, at the time of the loan, to purchase absolutely for a given price, in case of default, is not permitted to interfere with the right of redemption;22 though an agreement to give the mortgagee the right of preemption in case of a sale has been assumed to be valid.23 But, at our public sales, which always take place when the equity of redemption is foreclosed, either by judicial decree, or under the operation of a power to sell, no such agreement could have application; and it may be questioned whether it does not come within the equity and policy of the general principle, which does not permit agreements at the time of the loan, for a purchase, in case of default, to be valid.
The mortgagee may contract subsequently to the mortgage, for the purchase or release of the equity of redemption upon fair terms; and yet no agreement for a beneficial interest out of the mortgaged premises, while the mortgage continues, is permitted to stand, if impeached in a reasonable time. The reason is, that the mortgagee, from his situation, wields a very influential motive, and he has great advantage over the mortgagor in such a transaction.24 He may become the purchaser at the sale of the mortgaged premises by the master under a decree,25 and in New York, he is permitted, by statute, to purchase at the sale under a power, though he be the person who sells, provided he acts fairly, and in good faith; and in that case no deed is requisite to make his title perfect, but the affidavit of the sale, when recorded, is sufficient evidence of the foreclosure.26 Without such a statute provision the purchase would be subject to the scrutiny of a court of equity, and liable to be impeached, though the purchase is defeasible only by the cestui que trust, and not ipso facto void.27
The case of an absolute sale, with an agreement for a re-purchase within a given time, is totally distinct, and not applicable to mortgages. Such defeasible purchases, though narrowly watched, are valid, and to be taken strictly as independent dealings between strangers, and the time limited for the repurchase must be precisely observed, or the vendor’s right to reclaim his property will be lost.28
Property of every kind, real and personal, which is capable of sale, may become the subject of a mortgage quod emptionem, venditionemque recipit, etiam pignorationem recipere potest. It will, consequently, include rights in reversion and remainder, possibilities coupled with an interest, rents and franchises; but a mere expectancy as heir is a naked possibility, and not an interest capable of being made the subject of contract.29 If a leasehold estate be mortgaged, it is usual to take the mortgage by way of underlease, reserving a few days of the original term; and this is done that the mortgagee may avoid being liable for the rents and covenants which run with the land. It is now settled, that the mortgagee of the whole term is liable on these covenants even before entry; and the case of Eaton v. Jaques,30 which had declared a contrary doctrine, after being repeatedly attacked, was at last entirely destroyed as an authority.31
A mortgage is usually accompanied with a bond for the debt intended to be secured by it; but a covenant for the payment of the money, inserted in the mortgage, will be sufficient, and equally effectual with us; though, in England, upon a very narrow construction of the statute of 3 W. & M., the remedy by an action of covenant does not lie against a devisee.32 The covenant must be an express one, for no action of covenant will lie on the proviso or condition in the mortgage, and the remedy of the mortgagee for non-payment of the money according to the proviso, would seem to be confined to the land, where the mortgage is without any express covenant or separate instrument. The absence of any bond or covenant to pay the money, will not make the instrument less effectual as a mortgage.33
It is usual to add to the mortgage a power of sale in case of default, which enables the mortgagee to obtain relief in a prompt and easy manner, without the expense, trouble, formality, and delay of foreclosure by a bill in equity. The vexatious delay which accrues upon foreclosure, arises, not only from the difficulty of making all proper persons parties, but chiefly from the power that chancery assumes to enlarge the time for redemption on a bill to foreclose. There are cases in which the time has been enlarged, and the sale postponed, again and again, from six months to six months, to the great annoyance-of the mortgagee.34 These powers are found in England to be so convenient, that. they are gaining ground very fast upon the mode of foreclosure by process in chancery. Lord Eldon considered it to be an extraordinary power of a dangerous nature, and one which was unknown in his early practice.35 He was of opinion, that the power ought, for greater safety, to be placed in a third person as trustee for both parties, and this appears to be still a practice,36 though it is considered as rather unnecessary and cumbersome. The mortgagee himself, under such a power, becomes a trustee for the surplus, and if due notice of the sale under the power be not given, the sale may be impeached by bill in chancery.37 The title under the power from the mortgagee himself is sufficient in law, and the mortgagor will not be compelled to join in the conveyance.38
A power given to the mortgagee to sell on default, may be given by any person otherwise competent to mortgage, of the age of twenty-one years, though formerly in this state he was required to be of the age of twenty-five; and the power, before any proceedings are had under it, must be duly registered or recorded.39 These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person who, by assignment or otherwise, becomes entitled to the money secured to be paid.40 But the power is not divisible, and an assignment by the mortgagee of a part of his interest in the mortgage debt and estate will not carry with it a corresponding portion of the power.41
There may be difficult questions arising as to the competency of persons to mortgage who have only qualified interests in the estate, or are invested with beneficial or trust powers. But a power to mortgage includes in it a power to execute a mortgage, with a power to sell;42 and the better opinion would seem to be, that a power to sell for the purpose of raising money, will imply a power to mortgage, which is a conditional sale, and within the object of the power.43 Such powers are construed liberally in furtherance of the beneficial object. A power to appoint land has been held to be well executed by creating a charge upon it, and a power to charge will include a power to sell.44 The case falls within the reason and policy of the doctrine, that a trust to raise money out of the profits of land, will include a power to sell or mortgage, and such a construction of the power has been long an established principle in the courts of equity.45
But if the execution of a power be prescribed by a particular method, it implies, that the mode proposed is to be followed, and it contains a negative upon every other mode.46 This rule more strongly applies to extended, than to restricted executions of powers, for omne magis in se minus continet, and, generally, the execution of a power will be good, though it falls short of the full extent of the authority.47 In respect, however, to the execution of a power to sell contained in a mortgage, I apprehend, that the specific directions usually contained in the mortgage, and particularly when they are the subject of a statute provision, will preclude all departure from those directions, and consequently that the power in a mortgage to sell would not include a power to lease. It is declared by statute in this state, that where any formalities are directed by the grantor of a power, to be observed in the execution of the power, the observance of them is necessary; and the intentions of the grantor as to the mode, time, and conditions of its execution, unless those conditions are ‘merely nominal, are to be observed.48
A very vexatious question has been agitated, and has distressed the English courts, from the early case of Graves v. Mattison;49 down to the recent decision in Wynter v. Bold,50 as to the time at which money provided for children’s portions, may be raised by sale, or mortgage of a reversionary term. The history of the question is worthy of a moment’s attention as a legal curiosity, and a sample of the perplexity and uncertainty which complicated settlements “roll’d in tangles,” and subtle disputations, and eternal doubts, will insensibly encumber and oppress a free and civilized system of jurisprudence. If nothing appears to gainsay it, the period at which they are to be raised is presumed to have been intended to be, that which would be most beneficial to those for whom the portions were provided. If the term for providing portions ceases to be contingent, and becomes a vested remainder in trustees, to raise portions out of the rents and profits after the death of the parents, and payable to the daughters coming of age or marriage, a court of equity has allowed the portion to be raised by sale or mortgage in the lifetime of the parents, subject, nevertheless, to the life estate. The parent’s death is anticipated in order to make provision for the children.
The result of the very protracted series of these discussions for 150 years is, that if an estate be settled to the use of the father for life, remainder to the mother for life, remainder to the sons of the marriage in strict settlement, and, in default of such issue with remainder to trustees to raise portions, and the mother dies without male issue, and leaves issue female, the term is vested in remainder in trustees, and they may sell or mortgage such a reversionary term in the lifetime of the surviving parent, for the purpose of raising the portions, unless the contingencies on which the portions were to become vested had not happened, or there was a manifest intent that the term should not be sold or mortgaged in the lifetime of the parents, nor until it had become vested in the trustees in possession.51 The inclination of the Court of Chancery has been against raising portions out of reversionary terms, by sale or mortgage, in the lifetime of the parent, as leading to a sacrifice of the interests of the person in reversion or remainder; and modern settlements usually contain a prohibitory clause against it.52
A mortgage may arise in equity out of the transactions of the parties, without any deed or express contract for that special purpose. It is now well settled in the English law, that if the debtor deposits his title deeds with a creditor, it is evidence of a valid agreement for a mortgage, and amounts to an equitable mortgage, which is not within the operation of the statute of frauds. The earliest leading decision in support of the doctrine of equitable mortgages, by the deposit of the muniments of title, was that of Russell v. Russell, in 1783.53 It was followed by the decision in Birch v. Ellames,54 and the principle declared is, that the deposit is evidence of an agreement to make a mortgage, which will be carried into execution by a court of equity against the mortgagor, and all who claim under him, with notice, either actual or constructive, of such deposit having been made. Lord Eldon, and Sir William Grant, considered the doctrine as pernicious, and they generally expressed a strong disapprobation of it, as breaking in upon the statute of frauds, and calling upon the court to decide, upon parol evidence, what is the meaning of the deposit.55
But the decision in Russell v. Russell has withstood all the subsequent assaults upon it, and the principle is now deemed established in the English law.56 The decisions on this subject have, however, shown a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension; and it is very clear, that a mere parol agreement to make a mortgage, or to deposit a deed for that purpose, will not give any title in equity. There must be an actual and bona fide deposit of all the title deeds with the mortgagee himself, in order to create the lien.57 Nor will such an equitable mortgage be of any avail against a subsequent mortgage, duly registered, without notice of the deposit; and if there be no registry, it is the settled English doctrine, that the mere circumstance of leaving the title deeds with the mortgagor, is not, of itself, in a case free from fraud, sufficient to postpone the first mortgagee to a second, who takes the title deeds with his mortgage, and without notice of the first mortgagee.58
The vendor of real estate has a lien, under certain circumstances, on the estate sold, for the purchase money. The vendee becomes a trustee to the vendor for the purchase money, or so much as remains unpaid, and the principle is founded in natural equity, and seems to be inherent in the English equity jurisprudence. This equitable mortgage will bind the vendee and his heirs, and volunteers, and all other purchasers, from the vendee, with notice of the existence of the vendor’s equity. Prima facie the lien exists without any special agreement for that purpose, and it remains with the purchaser to show, that, from the circumstances of the case, it results that the lien was not intended to be reserved, as by the taking real or other personal security, or where the object of the sale was not money, but some collateral benefit.59 In Mackreth v. Symmons,60 Lord Eldon discusses the subject at large, and reviews all the authorities, and he considers this doctrine of equitable liens, to have been borrowed from the text of the civil law;61 and it has been extensively recognized and adopted in these United States.62
It has been a question much discussed, as to the facts and circumstances which would amount to the taking of security from the vendee, so as to destroy the existence of the lien. In several cases it is held, that taking a bond from the vendee, for the purchase money, or the unpaid part of it, affected the vendor’s equity, as being evidence that it was waived; but the weight of authority, and the better opinion is, that taking a note, bond, or covenant from the vendee, for the payment of the money, is not of itself an act of waiver of the lien, for such instruments are only the ordinary evidence of the debt. But taking a note, bill, or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien. Taking the deposit of stock is also a waiver of the lien;63 and, notwithstanding the decision of the master of the rolls, in Grant v. Mills,64 holding, that a bill of exchange, drawn by the vendee, and accepted by him and his partner, did not waive the lien; the sounder doctrine, and the higher authority is, that taking the responsibility of a third person for the purchase money is taking security, and extinguishes the lien.65
It has also been decided by the Supreme Court of the United States, after a full examination of the question, and upon grounds that will probably command general assent, that the vendor’s lien cannot be retained against creditors, holding under a bona fide conveyance from the vendee.66 The lien will prevail, however, against a judgment creditor of the vendor, intervening between the time of the agreement to convey and receipt of the consideration money, and the actual conveyance. Under these circumstances, the vendor is justly considered in the light of a trustee for the purchaser. But in that case, an intervening mortgagee, or purchaser for a valuable consideration, and without notice, would be preferred.67
(2.) Of the mortgagor’s estate and Equity of Redemption.
Upon the execution of a mortgage, the legal estate vests in the mortgagee, subject to be defeated upon performance of the condition. There is usually in English mortgages a clause inserted in the mortgage, that until default in payment, the mortgagor shall retain possession. This was a very ancient practice, as early as the time of James the First; and if there be no such express agreement in the deed, it is the general understanding of the parties, and at this day almost the universal practice, founded on a presumed or tacit assent. Technically speaking, the mortgagor has at law only a mere tenancy, and that is subject to the right of the mortgagee to enter immediately, and at his pleasure, if there be no agreement to the contrary. He may, at any time when he pleases, and before a default, put the mortgagor out of possession by ejectment, or other proper suit. This is the English doctrine, and I presume it prevails very extensively in the United States.68
The mortgagor cannot be treated by the mortgagee as a trespasser, nor can his assignee, until the mortgagee has regularly recovered possession, by writ of entry or ejectment. The mortgagor in possession is considered to be so with the mortgagee’s assent, and is not liable to be treated as a trespasser.69 The mortgagor is allowed in New York even to sustain an action of trespass against the mortgagee, or those claiming under him, if he undertakes an entry while the mortgagor is in possession.70 It was anciently held, that so long as the mortgagor remained in possession, with the acquiescence of the mortgagee, and without any covenant for the purpose, he was a tenant at will. This is also the language very frequently used in the modern cases; but its accuracy has been questioned, and the prevailing doctrine is, that he is not a tenant at will,71 for no rent is reserved; and so long as he pays his interest, he is not accountable, in the character of a receiver, for the rents.
The contract between the parties is for the payment of interest, and not for the payment of rent. He is only a tenant at will, sub modo. He is not entitled to the emblements, as other tenants at will are; and he is no better than a tenant at sufferance, and is not entitled to notice to quit before an ejectment can be maintained against him.72
But whatever character we may give to the mortgagor in possession by sufferance of the mortgagee, he is still a tenant.73 He is a tenant, however, under a peculiar relation, and he has been said to be a tenant from year to year, or at will, or at sufferance, or a quasi tenant at sufferance, according to the shifting circumstances of the case; and perhaps the denomination of mortgagor conveys distinctly and precisely the qualifications which belong to his anomalous character, and is the most appropriate term that can be used.74
It is the language of the English books, that a mortgagor, being in the nature of a tenant at will, has no power to lease the estate; and his lessee upon entry (but not the mortgagor) would be liable to be treated by the mortgagee as a trespasser, or disseizor, or lessee, at his election. This is supposed by Mr. Coventry to be the better opinion.75 The lease of the mortgagor is said to amount to a disseizin of the mortgagee, which renders the lessee upon entry a wrong-doer. But the justice and good sense of the case is, that the assignee of the mortgagor is no more a trespasser than the mortgagor himself; and the mortgagor has a right to lease, sell, and in every respect to deal with the mortgaged premises as owner, so long as he is permitted to remain in possession, and so long as it is understood and held, that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for the rents; and the mortgagee must recover the possession by regular entry, by suit, before he can treat the mortgagor, or the person holding under him, as a trespasser.
This is now the better and the more intelligible American doctrine; and in New York, in particular, since the action of ejectment by the mortgagee is abolished, a court of law would seem to have no jurisdiction over the mortgagee’s interest. He is not entitled to the possession, nor to the rents and profits; and he is turned over entirely to the courts of equity.76 In ascending to the view of a mortgage in the contemplation of a court of equity, we leave all these technical scruples and difficulties behind us. Not only the original severity of the common law, treating the mortgagor’s interest as resting upon the exact performance of a condition, and holding the forfeiture or the breach of a condition to be absolute, by non-payment or tender at the day, is entirely relaxed; but the narrow and precarious character of the mortgagor at law is changed, under the more enlarged and liberal jurisdiction of the courts of equity. Their influence has reached the courts of law, and the case of mortgages is one of the most splendid instances in the history of our jurisprudence, of the triumph of equitable principles over technical rules, and of the homage which those principles have received by their adoption in the courts of law.
Without any prophetic anticipation, we may now well say, that “returning justice lifts aloft her scale.” The doctrine now regarded as a settled principle, was laid down in the reign of Charles I. very cautiously, and with a scrupulousness of opinion. “The court conceived, as it was observed in chancery, that the said lease, being but a security, and the money paid, though not at the day, the lease ought to be void in equity.”77 The equity of redemption grew in time to be such a favorite with the courts of equity, and was so highly cherished and protected, that it became a maxim, that “once a mortgage always a mortgage.” The object of the rule is to prevent oppression, and contracts made with the mortgagor, to lessen, embarrass, or restrain the right of redemption, are, regarded with jealousy, and generally set aside as dangerous agreements, founded in unconscientious advantages assumed over the necessities of the mortgagor.
The doctrine was established by Lord Nottingham as early as 1681, in Newcomb v. Bonham;78 for, in that case the mortgagor had covenanted, that if the lands were not redeemed in his lifetime, they should never be redeemed; but the chancellor held, that the estate was redeemable by the heir, notwithstanding-the agreement; and though the decree in that case was subsequently reversed, it was upon special circumstances, not affecting the principle. The same general doctrine was pursued in Howard v. Harris,79 and it pervades all the subsequent and modern cases on the subject, both in England and in this country.80
The equity doctrine is, that the mortgage is a mere security for the debt, and only a chattel interest, and that until a decree of foreclosure, the mortgagor continues the real owner of the fee. The equity of redemption is considered to be the real and beneficial estate tantamount to the fee at law, and it is, accordingly, held to be descendible by inheritance, devisable by will, and alienable by deed, precisely as if it were an absolute estate of inheritance at law.81 The courts of law have, also, by a gradual and almost insensible progress, adopted these equitable views of the subject, which are founded in justice, and accord with the true intent and inherent nature of every such transaction. Except as against the mortgagee, the mortgagor, while in possession, and before foreclosure, is regarded as the real owner, and a freeholder, with the civil and political rights belonging to that character; whereas the mortgagee, notwithstanding the form of the conveyance, has only a chattel interest, and his mortgage is a mere security fair a debt. This is the conclusion to be drawn from a view of the English and American authorities.82
The equity of redemption is not liable, under the English law, to sale or execution, as real estate.83 It is held to be equitable assets, and is marshaled according to equity principles.84 But, in this country, the rule has very extensively prevailed, that an equity of redemption was vendible as real property on an execution at law, and it is also chargeable with, the dower of the wife of the mortgagor.85 On the other hand, the estate of the mortgagee, before foreclosure, is not the subject of execution, not even though there has been a default, and the condition of the mortgage forfeited.86 The English policy led to an early adoption of these just and reasonable views of the character of a mortgagor, and it was settled in the reign of Charles II, that the executor, and not the heir of the mortgagee in fee, was entitled to the mortgage money; for, as Lord Nottingham observed, the money first came from the personal estate, and the mortgagee’s right to the land was only as a security for the money.87 It was, also, by the statute of 7 and 8 Wm. III. that mortgagors in possession were allowed to vote for members of Parliament.
The mortgagor may exercise the rights of an owner while in possession, provided he does nothing to impair the security; and a court of chancery will always, on the application of the mortgagee, and with that object in view, stay the commission of waste by the process of injunction.88 But an action at law by the mortgagee, will not lie for the commission of waste, because he has only a contingent interest89 and yet actions of trespass, quare clausum fregit, by the mortgagee, for the commission of waste, by destroying timber, or removing fixtures, have been sustained against the mortgagor in possession, in those states, where they have no separate equity courts with the plenary powers of a court of chancery.90
The interference with the discretion of the mortgagor is not carried further, and, in ordinary cases, he is not bound to repair, and keep the estate in good order;91 and there is no instance in which a court of equity has undertaken to correct permissive waste, or to compel the mortgagor to repair; though cases of negligence rapidly impairing the security, without any overt act whatever, would address themselves with peculiar force to the courts of equity in this state, since the mortgagee is now deprived, by statute, of the power of taking the estate into his own management. As the law stands, it would seem, that the mortgagee is left to guard his pledge against such contingencies, by his own provident foresight and vigilance in making his contract, or to seek for aid in the enlarged discretion of a court of equity, which would interfere for his indemnity in special cases in which justice manifestly required it.
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 lien upon the lands; and, therefore, a tenant in dower, or jointress, a tenant by the curtesy, a remainder-man and reversioner, a judgment-creditor, and every other encumbrancer, unless he be an encumbrancer pendente lite, may redeem; and the doubts as to, the extent of the right to redeem beyond the mortgagor, and his representatives, arise only in courts of limited, and not of general equity jurisdiction.92 Lord Hardwicke felt himself bound to allow a prowling assignee, who had bought in the equity of redemption for an inconsiderable sum, to redeem.93 But the redemption must be of the entire mortgage, and not by parcels. He who redeems must pay the whole debt, and he will then stand in the place of the party whose interest in the estate he discharges.94 If the judgment creditor seeks to redeem against the mortgagee of the leasehold estate, he must, as it is but a chattel interest, have first sued out a fieri facias, in order to create a lien on the estate.95
The power of enforcing the right of redemption is an equitable power residing in the courts of chancery, and if there be no formal distinct equity tribunal, the power is exercised upon equitable principles in courts of law, clothed with a greater or less portion of equity jurisdiction.96 In carrying the right of redemption into effect, a court of equity is sometimes obliged to marshal the burden according to the equity of the different claimants, in order to preserve a just proportion among those who are bound in good conscience to a just contribution, and in order to prevent one creditor from exercising his election between different funds unreasonably, and to the prejudice of another. The principle of equity in these cases, is clear and luminous, and it is deeply ingrafted in general jurisprudence.97
(3.) Of the estate and rights of the mortgagee.
We have seen, that the mortgagee may, at any time, enter and take possession of the land, by ejectment or writ of entry, though he cannot make the mortgagor account for the past, or by-gone rents, for he possessed in his own right, and not in the character of receiver.98 He may, without suit, obtain possession of the rents and profits from a lessee existing prior to the mortgage, on giving him notice of his mortgage, and requiring the rent to be paid him, and in default he may distrain.99 The case of Moss v. Gallimore applies the right and the remedy of the mortgagee, to the rent in arrear at the time of the notice, as well as to the rent accruing subsequently, and that case was cited, and the principle of it not questioned, in Alchorne v. Gomme;100 though it would seem to be now understood in chancery, that the mortgagor is not accountable as receiver for the rents, and that the rent due prior to the notice belongs to the mortgagor.101
But, the case of Moss v. Gallimore has been considered as good law, to the whole extent of it, by the courts of law in this country,102 and the distinction taken is between a lease made by the mortgagor prior, and one made subsequent to the mortgage. In the latter case, it is admitted, that the mortgagee cannot distrain, or sue for the rent, because there is no privity of contract, or of estate, between the mortgagee and the tenant. But if the subsequent tenant attorns to the mortgagee after the mortgage has become forfeited, he then becomes his tenant, and is answerable to him for the rent.103 The statute of 11 Geo. II c. 19. expressly admitted of the attornment to the tenant (and whether the tenancy existed before or after the date of the mortgage, has been held to make no difference) to the mortgagee after forfeiture, and this provision has been incorporated into the statute law of this country.104
It will depend, therefore, upon the act of the tenant, under a lease from the mortgagor subsequent to the mortgage, whether the mortgagee can sustain a suit or distress for the rent prior to his recovery in ejectment. In this state, I apprehend, the mortgagee can, in no case, without such attornment, have any remedy at law for the rent, for he is deprived of any action to recover the possession, and if he gains the possession, it must be by contract with the mortgagor, or by one with the tenant subsequent to the forfeiture, or by the aid of a court of equity, and which aid would be afforded when the pernancy of the rents and profits becomes indispensable to the mortgagee’s indemnity.
If the mortgagee obtains possession of the mortgaged premises before foreclosure, he will be accountable for the actual receipts of rents and profits, and nothing more, unless they were reduced, or lost by his wilful default, or gross negligence.105 By taking possession, he imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would, with reasonable diligence, have received.106 He may charge for the expenses of a bailiff or receiver, when it becomes proper to employ one, but he is not entitled to make any charge, by way of commission, for his own trouble in collecting and receiving the rents.107 This is the English rule, and the evident policy of it is to guard against abuse in cases where there might be a, strong temptation to it; and the rule has been followed in New York and Kentucky, while in Massachusetts a commission of five per cent. is allowed to the mortgagee for managing the estate.108
The mortgagee in possession is likewise allowed for necessary expenditures in keeping the estate in repair, and in defending the title;109 but there has been considerable diversity of opinion on the question, whether he was entitled to a charge for beneficial and permanent improvements. The clearing. of uncultivated land, though an improvement, was not allowed in Moore v. Cable, on account of the increasing difficulties it would throw in the way of the ability of the debtor to redeem. But lasting improvements in building have been allowed in England under peculiar circumstances,110 and they have been sometimes allowed, and sometimes disallowed, in this country.111 The mortgagee in possession holds the estate strictly as a trustee, with the duties and obligations of a trustee, and if he takes the renewal of a lease, it is for the benefit of the estate, and not for his own benefit. He can Make no gain or profit out of the estate which he holds merely for his indemnity.112
The mortgagee’s right depends very essentially upon the registry of his mortgage, and upon the priority of that registry. The policy of this country has been in favor of the certainty and security, as well as convenience of a registry, both as to deeds and mortgages; and by the statute law of New York, every conveyance of real estate, whether absolutely, or by way of mortgage, must be recorded in the clerk’s office of the county in which the real estate is situated, after being duly proved or acknowledged, and certified as the law prescribes. If not recorded, it is void as against any subsequent purchaser, or mortgagee, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded.113 It may be said, generally, that this is the substance of the statute law on the subject in every state of the union; but in some of them the recording is still more severely enforced, and deeds are declared void, at least as to all third persons, unless recorded.114
If the question of right between a mortgagee, and a subsequent mortgagee or purchaser of the same estate, depended entirely upon the existence and priority of the registry, it would turn upon a simple matter of fact of the easiest solution, and it would undoubtedly remove much opportunity for litigation. The French ordinance of 1747, allowed to creditors and purchasers, having notice of a deed containing a substitution of an estate prior to their contract or purchase of the same, to object to the want of registry of the deed according to the requisition of the ordinance. The ordinance was framed by an illustrious magistrate, the Chancellor D’Aguesseau, and the commentators upon it laid it down as a fixed principle, that not even the most actual and direct notice would countervail the want of registration; so that, if a person was a witness, or even a party, to the deed of substitution, still, if it was not registered, he might safely purchase the property substituted, or lend money upon a mortgage of it.115 The policy of so rigorous a rule, was to establish a clear and certain standard of decision for the case, which would be incapable of vibration, and prevent the evils of litigation, uncertainty, and fraud. But Pothier questions the wisdom of the rule, inasmuch as actual notice supplies the want, and the object of the registry. The principle of the ordinance has, however, been continued, and applied to some special cases in the Napoleon code.116 A more reasonable doctrine prevails in the English and American law, and it is a settled rule, that if a subsequent purchaser or mortgagee, whose deed is registered, had notice, at the time of making his contract, of the prior unregistered deed, he shall not avail himself of the priority of his registry to defeat it, and the prior unregistered deed is the same to him as if it had been registered. His purchase is justly considered, in cases where the conduct of the first mortgagee has been fair, as made in bad faith, and it would ill comport with the honor of the law, and the wisdom of the administration of justice, that courts should blind their eyes to such fraudulent dealing, and suffer it to remain triumphant. If the second purchaser has, in fact, notice, the intent of the registry is answered, and to permit him to hold against the first purchaser, would be to convert the statute into an engine of fraud.
And by analogy to the case of the registry acts, it is settled in England, upon great consideration, that a purchaser is also bound by notice of a judgment, though it be not docketed. The effect of notice equally supplies the want of the register in the one instance, and of the docket in the other; though Lord Eldon seems to doubt whether the rule be perfectly reconcilable to principle.117 Lord Hardwicke, in the great case of Le Neve v. Le Neve,118 in which the existence and solidity of the English rule, are shown and vindicated in a masterly manner, states the case of a purchaser of land in a register county, employing an attorney to register his conveyance, who neglects to do it, and buys the estate himself, and registers his own conveyance, and he then significantly asks, shall this be allowed to prevail? A court of equity must have its moral sense “wrapt up in triple brass,” to be able to withstand such an appeal to its justice. The French code does not carry throughout the principle which it has adopted, for it declares, that the want of a registry may be set up by all persons interested therein, excepting, however, those who are charged with the causing of the registry to be made.119
The statute of New York postpones an unregistered deed, only as against a subsequent purchaser in good faith, and for a valuable consideration, and this lets in the whole of the English equity doctrine of notice. The statute law of many of the other states, is not so latitudinary in terms, and deeds not recorded are declared void as to creditors and subsequent purchasers, and, in some cases, they are declared to convey no title, or to be void as against all other persons but the grantor and his heirs. The doctrine of notice equally applies, however, as I apprehend, throughout the United States, and it every where turns on a question of fraud, and on the evidence requisite to infer it.120
In pursuance of that principle; and in order to support, at the same time, the policy, and the injunctions of the registry acts, in all their vigor and genuine meaning, implied notice may be equally effectual with direct and positive notice; but then it must not be that notice which is barely sufficient to put a party upon inquiry. Suspicion of notice is not sufficient. The inference of a fraudulent intent affecting the conscience, must be founded on clear and strong circumstances, in the absence of actual notice. The inference must be necessary, and unquestionable.121 Though the cases use very strong language in favor of explicit, certain notice, yet it is to be understood as the true construction of the rule on the subject, that implied or presumptive notice may be equivalent to actual notice.122 The notice must also have been received, or chargeable, when the mortgage was executed, for if a right had vested when the notice of the prior unregistered encumbrance was received, the mortgagee has then a right to try his speed in attaining a priority of registry.123
As courts of law have concurrent jurisdiction with courts of equity, in case of frauds, it was adjudged, in Jackson v. Bargott,124 that the question of notice, and of the preference due to the prior unregistered deed, by reason of notice, was cognizable in a court of law. But in Doe v. Allsop,125 it was decided, that the deed first registered must prevail at law Under the registry act of 7 Anne, c. 20. whether there be notice, or not notice, and that the grantee in the prior deed must seek his relief in equity. One of the judges, however, laid stress on the fact, that the registry act declared the unregistered conveyance void against every subsequent purchaser for a valuable consideration, without adding bona fide purchaser; and as the statute in New York uses the words purchaser in good faith, the jurisdiction of our courts of law over the case, would seem to remain unaffected. It is a question on the sound interpretation of the registry acts, and in a matter of fraud, and the better opinion is in favor of the jurisdiction of the courts of law.
A mortgage, not registered, has preference over a subsequent docketed judgment, and the statute regulations concerning the registry of mortgages, and the docketing of judgments, do not reach the case. A mortgage unregistered is still a valid conveyance, and binds the estate, except as against subsequent bona fide purchasers and mortgagees, whose conveyances are recorded. If, therefore, the purchaser at the sale on execution, under the judgment, has his deed first recorded, he will then gain a preference by means of the record over the mortgage, and the question of right turns upon the fact of priority of the record in cases free from fraud.126 The rule in Pennsylvania is different;127 and the docketed judgment is preferred, and not unreasonably; for there is much good sense, as well as simplicity and certainty in the proposition, that every encumbrance, whether it be a registered deed or docketed judgment, should, in cases free from fraud, be satisfied according to the priority of the lien upon the record which is open for public inspection. In one instance, a mortgage will have preference over a prior docketed judgment, and that is the case of a sale and conveyance of land, and a mortgage taken at the same time, in return, to secure the payment of the purchase money. The deed and the mortgage are considered as parts of the same contract, and constituting one act; and justice and policy equally require that no prior judgment against the mortgagor should intervene, and attach upon the land, during the transitory seizin, to the prejudice of the mortgage. This sound doctrine is, for greater certainty, made a statute provision in New York.128
There has been much discussion on the question whether the registry be of itself, in equity, constructive notice to subsequent purchasers and mortgagees. The weight of authority in the English books, and Mr. Coote says the weight of principle also, is against notice, founded on the mere registration of a deed; and Lord Redesdale thought, that if the record was held to be notice, it would be very inconvenient, for the principle would have to be carried to the extent of holding it notice of the entire contents of the deed, and to be notice whether the deed was duly or authorizedly recorded or not.129 But Lord Camden was evidently of a different opinion, though he held himself bound by precedents to consider the registry not notice.130 In this country, the registry of the deed is held to be constructive notice of it to subsequent purchasers and mortgagees;131 but we do not carry the rule to the extent apprehended by Lord Redesdale; and a deed unduly registered, either from want of a valid acknowledgment or otherwise, is not notice, according to the prevailing opinion in this country.132
The ancient rule was, that if the mortgagor contracted further debts with the mortgagee, he could not redeem without paying those debts also.133 The principle was to prevent circuity of action; but it was not founded upon contract, and Lord Thurlow said, it had no foundation in natural justice; though I think the rule evidently had a foundation in the civil law.134 The rule is now limited to the right to tack the subsequent debt to the mortgage, as against the heir of the mortgagor, and a beneficial devisee; but it cannot be permitted as against creditors, or against the mortgagor himself, or his assignee for valuable, consideration, or devisee for the payment of debts.135 So a mortgage or judgment may be taken, and held as a security for future advances, and. responsibilities to the extent of it, when this is a constituent part of the original agreement; and the future advances will be covered: by the. lien, in preference to the claim under a junior intervening encumbrance, with notice of the agreement.
The principle is, that subsequent advances cannot be tacked to a prior mortgage, to the prejudice of a bona fide junior encumbrancer; but a mortgage is always good, to secure future loans, when there is no intervening equity.136 It is necessary that the agreement, as contained in the record of the lien, should, however, give all the requisite information as to the extent and certainty of the contract, so that a junior creditor may, by inspection of the record, and by common prudence and ordinary diligence, ascertain the extent of the encumbrance. This is requisite to secure good faith, and prevent error and imposition in dealing.137 It is the settled rule in England, that a regularly executed mortgage cannot be enlarged, by tacking subsequent advances to it, in consequence of any agreement by parol;138 and an agreement to that effect in writing could not, as I apprehend, affect a subsequent encumbrancer, unless he had dealt with the mortgagor with full knowledge of the agreement.
It is the established doctrine in the English law, that if there be three mortgages in succession, and all duly registered, or a mortgage and then a judgment, and then a second mortgage upon the estate, the junior mortgagee may purchase in the first mortgage, and tack it to his mortgage, and by that contrivance “squeeze out” the middle mortgage, and gain a preference over it. The same rule would apply if the first, as well as the second encumbrance, was a judgment; but the encumbrancer who tacks must always be a mortgagee, for he stands in the light of a bona fide purchaser, parting with his money upon the security of the mortgage. This doctrine, harsh and unreasonable as it strikes us, has, nevertheless, its root in the Roman law.
The general maxim in that system, on the subject of pledges and hypothecations, was, qui prior est tempore potior est jure; but it yielded to this doctrine of substitution, when the subsequent encumbrancer took the place of a prior one by purchasing in the first mortgage, and tacking it to his own.139 In the English law the rule is under some reasonable qualification. The last mortgagee cannot tack, if, when he took his mortgage, he had notice in fact (for the registry or docket of the second encumbrance is not constructive notice, as we have already seen) of the intervening encumbrance. But if he acquired that knowledge subsequent to the time of taking his mortgage, he may then purchase and tack, though he had notice at the time of his purchase, and though there was even a bill then pending by the second mortgagee to redeem. The courts say, that up to the time of the decree settling priorities, the party may tack, or struggle for the tabula in naufragio.140
The English doctrine of tacking was first solemnly established in Marsh v. Lee,141 under the assistance of Sir Matthew Hale, who compared the operation to a plank in a shipwreck gained by the last mortgagee; and the subject was afterwards very fully and accurately expounded by the Master of the Rolls, in Brace v. Dutchess of Marlborough.142 It was admitted in this last case, that the rule carried with it a great appearance of hardship, inasmuch as it defeated an innocent second encumbrancer of his security. The assumed equity of the principle is, that the last mortgagee, when he lent his money, had no notice of the second encumbrance; and the equities between the second and third encumbrancers being equal, the latter, in addition thereto, has the prior legal estate or title, and he shall be preferred. In the language of one of the cases, he has “both law and equity for him.” The legal title and equal equity prevail over the equity.143
The Irish registry act of 6 Anne, has been considered as taking away the doctrine of tacking, for it makes registered deeds effectual according to the priority of registry. The priority of registry is made the criterion of title to all intents and purposes whatsoever, and this Lord Redesdale considered to be the evident intention of the statute, but that it did not exclude anything which affects the conscience of the party who claims under the registered deed, nor give a priority of right to commit a fraud.144 This leaves the doctrine of notice of a prior unregistered deed in full force; and this is the true and sound distinction which prevails in the United States, and I presume that the English law of tacking is with us very generally exploded.145 Liens are to be paid according to the order of time in which they respectively attached. This is the policy and meaning of our registry acts, and, consequently, all encumbrancers are to be made parties to a bill to foreclose, that their claims may be chargeable in due order.146
There is no natural equity in tacking, and when it supersedes a prior encumbrance it works manifest injustice. By acquiring a still more antecedent encumbrance, the junior party acquires, by substitution, the rights of the first encumbrancer over the purchased security, and he justly acquires nothing more. The doctrine of tacking is founded on the assumption of a principle which is not true in point of fact; for, as between A., whose deed is honestly acquired, and recorded today, and B., whose deed is with equal honesty acquired and recorded tomorrow, the equities upon the estate are not equal. He who has been fairly prior in point of time, has the better equity, for he is prior in point of right.
With the abolition of the English system of tacking, we are relieved from a multitude of refined distinctions, which have given intricacy to this peculiar branch of equity jurisprudence. The doctrine of notice is also of very extensive application throughout the law of mortgage, and it is very greatly surcharged with cases abounding in refinements. It is, indeed, difficult to define, with precision, the rules which regulate implied or constructive notice, for it depends upon the infinitely varied circumstances of each case. The general doctrine is, that whatever puts a party upon inquiry, amounts, in judgment of law, to notice, provided the inquiry becomes a duty; as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. So, notice of a deed is notice of its contents, and notice to an agent is notice to his principal. A purchaser with notice, from a purchaser without notice, can protect himself under the first purchaser, who was duly authorized to sell; and a purchaser without notice, from a purchaser with notice, is equally protected, for he stands perfectly innocent. There is, also, this further rule on the subject, that the purchaser of an estate in the possession of tenants, is chargeable with notice of the extent of their interests as tenants, for, having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease.147
IV. Of foreclosure.
The equity of redemption which exists in the mortgagor, after default in payment, may be barred or foreclosed, if the mortgagor continues in default after due notice to redeem. The ancient practice was by bill in chancery to procure a decree for a strict foreclosure of the right to redeem, by which means the lands became the absolute property of the mortgagee. This is the English practice to this day, though sometimes the mortgagee will pray for, and obtain a decree for a sale of the mortgaged premises, under the direction of an officer of the court, and the proceeds of the sale will, in that case, be applied towards the discharge of the encumbrances according to priority.148
The latter practice is evidently the most beneficial to the mortgagor, as well as the most reasonable and accurate disposition of the pledge. It prevails in New York, Maryland, Virginia, South Carolina, Tennessee, Kentucky, and probably in several other states.149 But in the New England states, the practice of a strict foreclosure would seem to prevail, and the creditor takes the estate to himself, instead of having it sold, and the proceeds applied. In Massachusetts and Maine, the mortgagor has three years, and in Connecticut fifteen years, and in New Hampshire one year, to redeem after entry and seizin by the mortgagee, upon breach of the condition, or under the decree of foreclosure.150 The severity of the foreclosure without a sale, is mitigated by the practice of enlarging the time to redeem from six months to six months, or for shorter periods, according to the equity arising from circumstances.151
But, in England, and with us, the practice of selling the land by the party himself, or by an authorized trustee, under a power inserted in the mortgage, has extensively prevailed. The course in Ireland, as well as here, is to decree a sale instead of a foreclosure, and if the sale produces more than tie debt, the surplus goes to the mortgagor, and if less, the mortgagee has his remedy for the difference. This course was recommended by Lord Erskine as more analogous to the relative situation of lender and borrower, and it was the English practice a century ago, in cases where the security was defective.
If the mortgagee proceeds by bill for the technical foreclosure, the estate becomes his property in the character of a purchaser; and the general understanding formerly was, that by taking the pledge to himself, he took it in satisfaction of the debt. But, according to the case of Took v. Hartley,152 if the mortgagee sells the estate, after the foreclosure, fairly, and for the best price, he may proceed at law against the mortgagor, upon his bond, for the difference, though he cannot have recourse at law for the deficiency, so long as he keeps the estate, because the value of it is not ascertained, and the mortgagee cannot say what proportion of the debt remains due. It has likewise been repeatedly held, that an action at law by the mortgagee, after foreclosure, for the balance of the debt due him, opens it, and lets in the mortgagor to redeem.153
There has been some embarrassment and conflict of opinion manifested in the cases, on the point whether the mortgagee had his remedy at law after a foreclosure, and without a sale of the estate. The better opinion is, that after a foreclosure with or without a subsequent sale, the mortgagee may sue at law for the deficiency, to be ascertained in the one case by the proceeds of the sale, and in the other by an estimate and proof of the real value of the pledge at the time of the foreclosure.154 Whether the action at law will open the foreclosure in equity, and let in the equity of redemption, is an unsettled question. The weight of English authority would seem to be, that it opens the foreclosure, unless the estate has, in the mean time, been sold by the mortgagee, and then it is admitted, that the power of reconveyance is gone, for it would be inequitable to open the foreclosure against the purchaser. But in Hatch v. White, the reasoning of the court was against the conclusion, that the suit at law opened the foreclosure in any case.
The general rule is, that the mortgagee may exercise all his rights at the same time, and pursue his remedy in equity upon the mortgage, and his remedy at law upon the bond or covenant accompanying it, concurrently.155 There are difficulties attending the sale of the equity of redemption by the mortgagee, by execution at law, and it is accompanied. with danger to the rights of the mortgagor; and these difficulties were suggested in the case of Tice v. Annin,156 and that the proper remedy was to prohibit the mortgagee from selling at law the equity of redemption.157
When he proceeds by bill to foreclose, he must make all encumbrancers existing at the filing of the bill, (and which of course includes the junior, as well as prior encumbrancers,) parties, in order to prevent a multiplicity of suits, and that the proceeds of the mortgaged estate may be duly distributed, and the encumbrancers who are not parties will not be bound by the decree.158 The reason of the rule requiring all encumbrancers, subsequent as well as prior to the plaintiff, to be made parties, is to give security and stability to the purchaser’s title; for he takes a title only as against the parties to the suit, and it cannot, and ought not to be set up against the subsisting equity of those encumbrancers who are not parties.159 If a surplus remains after satisfying the encumbrancers who are brought into court, it will be paid over to the mortgagor as the proceeds of his equity of redemption, though subsequent encumbrancers who were not parties, would probably be permitted, on application to the court, and due proof of their title, to intercept its transit.160
The general rule is, that all persons materially interested in the mortgage, or mortgaged estate, ought to be made parties to a bill to foreclosure. This will ordinarily include the heir, or devisee, or assignee, and personal representatives of the mortgagor, and also the tenants for life, and the remainder-man, for they all may be interested in the right of redemption, or in taking the accounts. If the mortgage consists of a reversion or remainder, subject to an estate for life, it may be foreclosed, but the estate of the tenant for life would not be affected, and he would have no interest in the foreclosure.161 The bill to foreclose is filed in the name of the mortgagee, or of his assignee, or, if dead, in the name of his personal representatives, for the mortgage debt is part of the personal estate of the mortgagee, and though, on his death, the estate technically descends to the heir, he will, without a manifest intent to the contrary, take it in trust for the personal representatives.162 But the question of parties is usually more or less fluctuating, and open for discussion. It is governed, in some degree, by circumstances, whereas the principle that those persons who are interested in the subject, and are not made parties to the suit, are not bound by the decree, is more steady in its operation, for it is founded on natural right.
The equity of redemption may be foreclosed by the act of the mortgagor himself, for upon a bill to redeem, the plaintiff is required to pay the debt by a given time, which is usually six months after the liquidation of the debt; and upon his default the bill is dismissed for non-payment, which is a bar to a new bill, and equivalent to a decree of absolute foreclosure.163
The right of redemption may be barred by the length of time. The analogy between the right in equity to redeem and the right of entry at law, is generally preserved; so that the mortgagor who comes to redeem against a mortgagee in possession, after the period of limitation of a writ of entry, must bring himself within one of the exceptions, which would save the right of entry at law, or the time will be a bar to the redemption, and a release of it to the mortgagee may be presumed. The limitation at law and in equity is usually the same, with the allowance of the same time for disabilities.164 The statute of limitations is assumed, as the fit and proper ground for taking the length of possession therein mentioned as the presumption of right, and the courts of equity have been considered by the judges, in some cases, as virtually, though not in terms, included in its provisions.
This is the general doctrine in England and in this country, in respect to remedies in equity; but the late revised statutes of New York have wisely removed all doubt and difficulty on this subject, and regulated limitations in equity by express provisions. In all cases of concurrent jurisdiction in the courts of law and of equity, the statute of limitations applies equally to both courts, but it does not apply to cases in which a court of equity has peculiar and exclusive jurisdiction; and in all such cases, the limitation of bills for relief, on the ground of fraud, is six years after the discovery of it by the aggrieved party; and in all the other cases not provided for, the limitation is ten years after the cause accrued; and this, consequently, reduces the right to redeem from twenty years, as it before stood, to ten years.165
It is the better and prevailing opinion in the English courts, that if a mortgagee enters in the lifetime of the tenant for life, the remainder-man will be barred of his right to-redeem after twenty years from such entry. The principle is, that the remainder-man might have redeemed, notwithstanding the life estate, and that it is of no consequence to the mortgagee who has the equity, for he ought to be quieted after twenty years’ possession. This was the opinion of Ch. B. Eyre166 and of Sir William Grant, and it was so decided in Harrison v. Hollins.167 Lord Manners was of a different opinion, and he concluded from analogy to the statute of limitations at law, that the remainderman had twenty years to redeem, after the termination of the life estate. Until his title vests in possession, he was quite unconnected with the tenant for life; and there was as much reason in this as in other cases, that lapse of time should not bar, until his right of entry had accrued.168
As the right of redemption belongs exclusively to a court of equity, the remainder-man’s bill to redeem must, in New York, be filed within ten years “after the cause thereof shall accrue;”169 and whether the cause for redemption, as respects the remainder-man, may be said to accrue when the mortgagee enters, and takes possession under the mortgage, remains yet to be settled. This case does not fall precisely within the principle which gives to a remainder-man twenty years after the death of the tenant for life to assert a title, and make his claim and entry by action, for until then he had no right of entry, whereas the remainder-man, in the other case, may redeem the mortgage in the lifetime of the tenant for life; and to permit a mortgagee to be called to a severe account for the proceeds of the estate, after a long unmolested reception of the rents and profits, and when he is not allowed any adequate compensation for his care and trouble, is not, in those instances where the remainder-man might-have called on him sooner, very consistent with true policy and substantial justice.170
The mortgagee may equally on his part be barred by lapse of time, and if the mortgagor has been permitted to possess and enjoy the estate without account, and without any payment or claim for a given period, and which is generally fixed at twenty years, the mortgage debt is presumed to be extinguished, and a reconveyance of the legal estate from the mortgagee may be presumed. The period of twenty years is taken by analogy to the period of limitation at law for tolling the entry of the true owner.171 The rule of barring the equity of redemption, or the claim of the mortgagee by lapse of time, is founded on a presumption of title, which may be rebutted by parol proof, or circumstances sufficient to put down or destroy the contrary presumption.172
When a foreclosure takes place by a sale of the mortgaged premises under a power, it is usual in England to provide in the mortgage itself for due notice of the sale, so as to afford a fair opportunity of an advantageous sale. If the mortgagee omits to give proper notice, whether directed by the power or not, the sale may be impeached in chancery.173 In New York,174 and probably in other states, a sale under a power is made the subject of a statute provision; but as. the title under such a sale does not affect any mortgagee or judgment creditor whose lien accrued prior to the sale, it must be rather a hazardous and unsatisfactory title, and far inferior to one under a decree in chancery founded on a view of the rights, (and which bars the rights) of all encumbrancers who are brought before the court. The sale under a power, if regularly and fairly made, according to the directions of the statute, is a final and conclusive bar to the equity of redemption.
This has been the policy and language of the law of New York, from the time of the first introduction of a statute regulation on the subject in March,, 1774.175 As proceedings under a power are in pais, and no day in court is given to. the mortgagor to set up any equitable. defense, a court off equity will interfere, where payments have been: made, and not. credited, and stay the proceedings, and regulate the gale as to the extension of notice, or otherwise, as justice may: require., and particularly when the rights of the infant heirs of the mortgagor are concerned.176 A sale under a power, as well as under a decree, will bind the infant heirs, for the infant has no day after he comes of age to show cause, as, he has where there is the strict technical foreclosure, and as he generally has in the case of decrees.177
Upon a decree for a sale, it is usual to insert a direction that the mortgagor deliver up possession to the purchaser; but whether it be or be not part of the decree, a court of equity has competent power to require, by injunction, and enforce by process of execution, delivery of possession; and the power is founded upon the simple elementary principle, that the power of the court to apply the remedy is coextensive with its jurisdiction over the subject’ matter.178 The English practice of opening biddings on a sale of mortgaged premises, under a decree, does not prevail to any great extent in this country. The object is to aid creditors by an increase of the bid; but Lord Eldon. condemned the practice as injurious to the sale, and he observed, that a great many estates were thrown away upon the speculation that there would be an opportunity of purchasing afterwards by opening biddings.
The English method of selling under a decree varies greatly from ours, and is favorable to openings of the sale; whereas the sale at public auction with us, is ordinarily a valid and binding contract as soon as the hammer is down. The master sells at public auction on due notice, and the purchaser becomes entitled to a deed, unless there be fraud, mistake, or some occurrence, or some special circumstances, affording, as in other cases, a proper ground for equitable relief. In England the sale has the attributes of a private sale. The master gives notice, and receives bids, and reports the highest bidder; and if his report be confirmed, the title is examined, and the conveyance prepared, and the whole proceeding is in fieri until the final settlement of the title.179
If a mortgage be satisfied without a sale, and the estate is to be restored to the mortgagor, it will depend upon circumstances whether a reconveyance be necessary. When the mortgage is made with a condition that the conveyance shall be void on payment at a given day, and the condition be fulfilled, the land returns to the mortgagor without any reconveyance, and by the simple operation of the condition.180 But if there had been a default, then, as the estate had become absolute at law, according to the old doctrine, the language of the books has been, that a reconveyance was necessary on discharging the debt.181 But the general understanding, and the practice on this subject in this country, has been different, though the cases are not uniform.
This contrariety of opinion, which shows itself here and in England, proceeds from the vibration between law and equity views of the subject. A judge at law, as was observed in Gray v. Jenks,182 sometimes deals with the mortgage in its most enlarged and liberal character, stripped of its technical habiliments, and a judge in equity sometimes follows out the doctrine of law, and contemplates it with much of its original and ancient strictness. The debt, generally speaking, is considered to be the principal, and the land only the incident, and discharging or forgiving the debt, with the delivery of the security, any time before foreclosure, extinguishes the mortgage, and no reconveyance is necessary to restore the title to the mortgagor. So, an assignment of the debt by deed, by writing simply, or by parol, is said to draw the land after it as a consequence, and as being appurtenant to the debt. The one is regarded as the principal, and the other the accessary, and omne principale trahit ad se accessorium. The assignment of the interest of the mortgagee in the land, without an assignment of the debt, is considered to be without meaning or use. This is the language of the courts of law, as well as of the courts of equity; and the common sense of parties, the spirit of the mortgage contract, and the reason and policy of the thing, are with the doctrine.183
In Massachusetts, the technical rules of the common law are more strictly maintained. The doctrine of Lord Mansfield, in Martin v. Mowlin, is not regarded as correct, and upon the construction of their statute law the estate of the mortgagee cannot be assigned except by deed, though a bond may be assigned, and pass without deed, and even by delivery. Upon the discharge of the mortgage debt, after a default, a reconveyance is deemed requisite to restore the fee to the mortgagor. So, also, in New Jersey, notwithstanding the opinion that was declared in Den v. Spinning, the old English strict common law doctrine is recalled, and it is now held, that payment of the debt does not cause the title to revert to the mortgagor, and a conveyance is held to be necessary. This is the doctrine also in Maine, Connecticut, Virginia, and Kentucky.184
1. Mr. Butler is of opinion, that mortgages were introduced less upon the model of the Roman pignus or hypotheca, than upon the common law doctrine of conditions. But upon a view of the Roman hypotheca, it is impossible to withhold our belief, that the English law of mortgages, taken in its most comprehensive sense, was essentially borrowed from the civil law. Thus, in the Roman law, the mortgage could be held as a security for further advances, (Code, 8. 27. 1.) and a covenant that the mortgage should be forfeited absolutely on a default, was void. (Code, 8. 35. 3.) So, a mortgagor was entitled to due notice and opportunity to redeem before his right was extinguished; and the pledge could not be sold, without a protracted notice, or a judicial decree. (Code, 8. 28. 4. Ibid. 34. 3. sec. 1.) The mortgagee was even allowed to tack another encumbrance to his own, and thereby to gain-a preference over an intermediate encumbrance. (Dig. 20. 4. 3.) The analogy might be traced in other important particulars. See Pothier’s Pandectee Justinianece, lib. 27. and Dict. du Digest par Thevenot-Dessaules, tit. Hypotheque, passim. In Doctor Brown’s View of the Civil Law, vol. i. p. 200-210, the general features of similitude between the Roman hypotheca and the English mortgage, are strongly delineated.
2. Glanville, lib. 10. ch. 6. Nulli liceat feudum vendere vet pignorare sine permissione illius domini. Feud. lib. 2. tit. 55.
3. Co. Litt.,x.05. a. 2 Blacks. Cam. 157.
4. Fulthrope v. Foster, 1 Vern. 476. The Welch mortgage, under its strict contract, without any mitigation of its severity in equity, was analogous to the contract termed antichresis in the Roman law. Dig. 20. 1. 11. 1. It was likewise analogous to the mortgage of lands in the age of Glanville; and he gives to a mortgage, by which the creditor was to receive the rents and profits during the detention of the debt, without account, and without applying them to reduce it, the name of mortuum vadium. It was a hard and unconscientious, but lawful contract; and Glanville, with primeval frankness and simplicity, does not scruple to condemn it as unjust, while he admits it to be lawful; injusta, est et inhonesta. Glan. lib. 10. ch. 6. and 8. The French code civil, no. 2085. has adopted the Roman antichresis, with this mitigation, that the rents and profits are to be applied to keep down the interest, and the surplus, if any, to extinguish the principal.
5. Bro. Abr. tit. Pledges, p1. 20. tit. Trespass, pl. 271. Burnet, J. is Ryall v. Rowley, 2 Vesey, 358. 359. Mores v. Gorham, Owen’s Rep. 123. Ratcliff v. Davis, 1 Bulst. 29. Cro. Jac. 244. Yelv. 178. S. C. Comyn’s Dig. tit. Mortgage by Pledge of Goods, b. Demaudray v. Metcalfe, Prec. in Ch. 419. Vandezee v. Willis, 3 Bro. 21.
6. Glanville, lib. 10. dh. 6. 8.
7. The Master of the Rolls, in Jones v. Smith, 2 Vesey, jr. 378. Powell on Mortgages, p. Barrow v. Paxton, 5 Johns. Rep. 258. Brown v. Bement, 81bid. 96. McLean v. Walker, 10 Ibid. 471. Garlick v. James, 12 Jbid. 146. Wilde, J. in 2 Pick. 610. Haven v. Law, 2 X.. H. Rep. 13. De Lisle v. Priestman, 1 Brown’s Penn. Rep. 176.
8. Inst. lib. 2. tit. 8 sec. 1. Vinnii Com. h. t. Code 8. 35. 3. Perezius on the Code, vol. ii. 62. tit. 34. sec. 4, 5. p. 63. sec. 8. Bell’s Com. on the Law of Scotland, vol. ii. 22. 5th edit. Merlin’s Repertoire, art. Gage. Code Civil, art. 2078. Institutes of the Laws of Holland, by J. Vanderlinden, translated by J. Henry, Esq. p. 180.
9. Kemp v. Westbrook, 1 Vesey, 278. Demendray v. Metcalf, Pree. in Ch. 419. Vanderzee v. Willis, 3 Bro. 21.
10. Tucker v. Wilson, 1 P. Wms. 261. 1 Bro. P. C. 494. edit. 1784. Lockwood v. Ewer, 2 Atk. 303. Hart v. Ten Eyck, 2 Johns. Chan. Rep. 100.
11. Kemp v. Westbrook, 1 Vesey, 278. N.Y. Revised Statutes. Vol. 1366. tec. 20.
12. Litt. sec. 332.
13. Co. Litt. 210. b.
14. Litt. sec. 337.
15. The Lord Cromwel’s case, 2 Co. 79. Litt. sec. 334. Co. Litt. 208. b.
16. Goodell’s case, 5 Co. 95. Co. Litt. 210. This case of Goodell, and Wade’s case, 5 Co. 114. are samples of the discussions on what was, in the time of Lord Coke, a very momentous question, whether the absolute forfeiture of the estate had or had not been incurred by reason of non-payment at the day. Such a question, which would now be only material as to the costs, was in one of those cases decided on error from the K. B. after argument and debate by all the judges of England.
17. Dey v. Dunham, 2 Johns. Ch. Rep. 182. N.Y. Revised Statutes, vol. i. 756. Harrison v. The Trustees of Phillips Academy, 12 Mass. Rep. 456. Blaney v. Bearce, 2 Greenleaf, 132
18. Lord Talbot, in Cotterell v. Purchase, Cases temp. Talbot, 89. Baker v. Wind, 1 Vesey, 160.
19. Lund v. Lund, 1 X. H. Rep. 39. Bickford v. Daniels, 2 ibid. 71. Runlet v. Otis, ibid. 167. Erskine v. Townsend, 2Mass. Rep. 493. Kelleran v. Brown, 4Mass. Rep. 443. Stocking v. Fairchild, 5 Pick. Rep. 181.
20. Taylor v. Weld, 5Mass. Rep. 109. Cary v. Rawson, 8Mass. Rep. 159. Wharf v. Howell, 5 Binney, 499. Menude v. Delaire, 2 Dessaus. 564. Reed v. Landale, Hardin, 6. James v. Morey, 2 Cowen’s Rep. 246. Anon. 2 Hayw. 26. Dabney v. Green, 4 Hen. 8fMunf. 101. Thompson v. Davenport, 1 Wash. Rep. 125. Hughes v. Edwards, 9 Wheat. Rep. 489.
21. Maxwell v. Mountacute, Pree. in Ch. 526. Lord Hardwicke, in Dixon v. Parker, 2 Vesey, 225. Marks v. Pell,! Johns. Ch. Rep. 594. Washburne v. Merrills, 1 Day, 139. Strong v. Stewart, 4 Johns. Ch. Rep. 167. James v. Johnson, 6 Johns. Cle. Rep. 41’7. Clark v. Henby, 2 Cowen’s Rep. 324. Murphy v. Tripp, 1 Monroe’s Rep. 73. Slee v. Manhattan Company, 1 Page, 48.
22. Bowen v. Edwards, 1 Rep. in Ch. 117. Willett v. Winnell, 1 Vern. 488.
23. Orby v. Trigg, 3 Eq. Cas..fibr. 599. pl. 24. 9 Mod. 2. S. C.
24. Wrixon v. Cotter, 1 Ridgway, 295. Austin v. Bradley, 2 Day, 466. Lord Redesdale, in Hicks v. Cooke, 4 Dow, 16.
25. Ex parte Marsh, 1 Madd. Ch. Rep. 148,
26. N.Y. Revised Statutes, vol. ii. 546. sec. 7. and 14.
27. Munroe v. Allaire, cited in 1 Caines’ Cases in Error, 19, Davoue v. Fanning, 2 Johns. Ch. Rep. 252. Downes v. Grazebrook, s Merivale, 200. Slee v. Manhattan Company, 1 Paige,48.
28. Barrell v. Sabine, 1 Vern. 268. Endsworth v. Griffith, 15 Viner, 468. pl. 8. Longuet v. Scawen, 1 Vesey, 405. 1 Powell on Mortgages, 138. note T.
29. Lord Eldon, in Carleton v. Leighton, 3 Merivale. 667. e
30. Doug. Rep. 455.
31. Williams v. Bosanquet, 1 Brod. & Bing. 238. It is, however, said to be better for the mortgagee to take an assignment of the whole time, than an underlease by way of mortgage; for then the right of renewal of the lease will be in him. 1 Powell on Mort. 197. n. 1. By the N.Y. Revised Statutes, vol. i. 739. lands held adversely mass be mortgaged, though they cannot be the subject of grant.
32. Wilson v. Kimbley, 7 East, 128.
33. Floyer v. Lavington, 1 P. Wms. 268. Briscoe v. King, Cro. Jac. 281. Yelv. 206. Lord Hardwicke, in Lawless v. Hopper, 3 Atk. 278. Drummond v. Richards, 2 Munf. 337. This doctrine has been made a statute provision in the N.Y. Revised Statutes, vol. i. 738. sec. 139. where it is declared, that no mortgage shall be construed as immplying a covenant for the payment of the money; and if there be no express covenant for such payment in the mortgage, and no bond or other separate instrument to secure payment, the mortgagee’s remedy is confined to the land mortgaged. In Ancaster v. Masses, 1 Bro. C. C. 464. Lord Thurlow, however, intimated very strongly, that though the mortgage was unaccompanied with either bond or covenant, yet that the mortgagee would have the rights of a simple contract creditor, for there was still a debt; but. the statute in New York has disregarded the suggestion.
34. In Edwards v. Cunliffe, 1 Madd. Ch. Rep. 160. the usual order on foreclosure was, that the mortgagor pay in six months, or stand foremclosed. This was afterwards enlarged to six months more, then to five, then to three, and to three again.
35. Roberts v. Bozon, February, 1825. The power to sell inserted in a mortgage, though unknown to Lord Eldon in his early practice, is of a more ancient date than even the life of Lord Eldon, for we find an instance of it in Croft v. Powell, Comyn’s Rep. 603. It was there insisted to be a valid power, and the court, without questioning its operation, decided the cause on the ground that the mortgagee had not conveyed an absolute estate under the Lord Eldon’s aversion to innovation has grown with his growth, and breaks out on every occasion; but who does not revere, even in his errors, the justum et ten.ar cem propositi virum?
36. Anon. 6 Madd. Ch. Rep. 15.
38. Corder v. Morgan, 18 Vesey, 394.
39. N.Y. Revised Statutes, vol. ii. 545. sec. 1 and 2.
40. Bergen v. Bennett, 1 Caines’ Cases in Error, 1. Wilson v. Troup, 2 Cowen, 195. N.Y. Revised Statutes, vol. is 735. sec. 108. 737. sec. 133.
41. Wilson v. Troup, ub. sup.
42. Wilson v. Troup, 7 Johns. Ch. Rep. 25.
43. 1 Powell on Mortgages, 61. a. ed. Boston, 1828.
44. Roberts v. Dixall, 3 Eq. Cas. Abr. 668. p1. 19. Kenworthy v. Rate, 6 Vesey. 793.
45. Lingon v. Foley, 2 Ch. Cas. 205. Sheldon v. Dormer, 2 Vern. 310. Trafford v. Ashton, i P. Wms. 415. Allan v. Backhouse, 2 Ves. & Beam. 65.
46. Joy v. Gilbert, 2 P. Wms. 13. Mills v. Banks, 3 ibid. 1.
47. Isherwood v. Oldknow,, 3 Maule & Selw. 382. Sugden on Powers, 447. 449. 2d London ed.
48. N.Y. Revised Statutes, vol. i. 786. sec. 119, 120,121.
49. Sir T. Jones, 201.
50. 1 Simon 8r Stuart, 507.
51. Sir Joseph Jekyll, in Evelyn v. Evelyn, 2 P. Wms. 661. 14 Viner, 240. p1.11.
52. See Coote’s Treatise on the Law of Mortgages, p. 147. to 163. and 1 Powell on Mortgages, p. 74. to 100. Boston ed. 1828, where the numerous cases on this question are collected; and the review of them becomes a matter of astonishment when we consider the ceaseless litigation which has vexed the courts on such a point. Most of the great names which have adorned the English chancery from the reign of Charles IL, when the first adjudication was made, down to the present day, have expressed an opinion, either for or against the expemdiency and solidity of the rule. Such a contingent limitation to trustees, as the one in the instance stated, would be too remote and void under the N.Y. Revised Statutes, vol. i. 723. sec. 14-17.; but the great point touching the power to sell or mortgage the remainder to raise portions, may arise in New York, as well as elsewhere.
53. 1 Bro. 269.
54. 2 Azast. 427.
55. Ex parte Haigh, 11 Vesey, 403. Norris v. Wilkinson, 12 ibid. 192. Ex parte Hooper, 19 ibid. 477.
56. Ex pate Whitbread, 19 Vesey, 209. Lord Ellenborough, in Doe v. Hawke, 2 East’s Rep. 486. Ex parte Kensington, 2 Ves. & Beam. 79.
57. Ex parte Coombe, 4 Madd. Rep. 133. Lucas v. Dorrien, 7 Taunt. Rep. 279. Ex parte Coming, 9 Vesey, 115. Ex parte Bulteel, 2 Cox, 243. Norris v. Wilkinson, 12 Vesey, 192. Ex parte Pearse, l Buck. B. C. 525.
58. Berry v. Mutual-Ins. Company, 2 Johns; C1. Rep. 603.
59. Chapman v. Tanner, 1 Vern. 267. Lord Hardwicke, in Walker v. Preswick, 1 Vesey, 622. Lord Eldon, in Austin v. Halsey, 6 Vesey, 483. Sir Wm. Grant, in Naire v. Rowse, Ibid. 759. Hughes v. Kearney, 2 Sch. 4 Lef. 132. Meigs v. Dimock, 6 Conn. Rep. 458.
60. 15 Vesey, 329.
61. Dig. lib. 18. tit. 1. 1. 19.
62. Cole v. Scot, 2 Wash. 191. Cox v. Fenwick, 3 Bibb. 183. Carson v. Green, 1 Johns. Chan. Rep. 308. Fish v. Howland, 1 Paige, 20. Bayley v. Greenleaf, 7 Wheaton, 46. Gilman v. Brown, 1 Mason’s Rep. 191. Watson v. Wells, 5 Conn. Rep. 468. Jackman v. Hallock, 1 Hammond’s Ohio Rep. 318. But this doctrine of an equitable lien for the purchase money has been judicially declared not to exist in Pennsylvania, though it had previously been assumed to exist there by very distinguished judges. Kauffelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, Ibid. 286. It is said also not to have been adopted in all its extent in Connecticut. Daggett, J. 6 Conn. Rep-464.
63. Nairn v. Prowse, 6 Vesey, 752.
64. 2 Ves. & Beam. 306.
65. Gilman v. Brown, 1 Mason, 191. 4 Wheaton, 255. S. C. In the Roman law, from whence the doctrine of the vendor’s lien is supposed to be derived, the absolute property passed to the buyer if the seller took another pledge, or other personal security; venditee vero res et traditie non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel olio modo ei satisfecerit, veluti expromissore aut pignore dato. Inst. 2. 1. 41. Hoc nomine fidejussor, hie intelligi videtur. Vinnius in Inst. h. t.
66. Bayley v. Greenleaf, 7 Wheaton, 46.
67. Finch v. Earl of Winchelsea, 1 P. Wins. 277. The question, whether taking a bond or bill destroyed the lien, has been quite a. vexed one in the hooks.. In Fawell v. Healis, Amb. 724. taking a bond was considered to have destroyed the lien. In Blackburn v. Gregson, 1 Bro. 420. 1 Cox, 90. S. C. the question was raised and left undecided, though Lord Loughborough said, he had a decided remembrance of a case, where it was held the lien continued, although a bond was given. In Winter v. Anson, 1 Simon 6; Stuart, 434. it ‘vas held, that there was no lien where the bond was taken for the purchase money, payable at a future day, with interest. It was dedecided to the same effect in Wragg v. the Comptroller-General, 2 Dess. S. C. R. 509. But we have decisions directly to the contrary, in White v. Casanove, i Hayw. 6; Johns. 106. Cox v. Fenwick, 2 Bibb. 183. and Kennedy v. Woolfolk, 3 Hayw. 197. and Mr. Justice Story also draws a contrary conclusion, in Gilman v. Brown, 1 Mason’s Rep. 214.; and he considers a note, bond, or covenant from the vendee, ‘to be consistent with the preservation of the lien. The same opinion is given in Kennedy v. Woolfolk, 3 Haywood, 197. and in Fish v. Howland, l Paige, 20. where this doctrine of lien is laid down, with comprehensive, accuracy and precision.
68. Birch v. Wright, 1 Term Rep. 378. Buller, J. Rockwell v. Bradley, 2 Conn. Rep. 1. Blaney v. Bearce, 2 Greenleaf, 132. Erskine v. Townsend, 2 Mass. Rep. 493. Parsons, Ch. J. in Newall v. Wright, s Mass. Rep. 138. Colman v. Packard, 16 Ibid. 39. Simpson v. Ammons, 1 Binney, 176. McCall v. Lenox, 9 Serg. & Rawle, 302, though I should infer from the language of the last case cited, that the ejectment would not lie until after a default.
69. See the opinion of Jackson, J. in Fitchbury Cotton Man. Co. v. Melven, 15 Mass. Rep. 268. and the case of Wilder v. Houghton, 1 Pick. 87.
70. Runyan v. Mersereau, 11 Johns. Rep. 534. Jackson v. Bronson, 19 Ibid. 325. Dickenson v. Jackson, 6 Cowen, 147.
71. Powsely v. Blackman, Cro. Jac. 659.
72. Keech v. Hall. Doug. 21. Moses v. Gallimore, Ibid. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Thunder v. Belcher, 3 East, 449. Sir Thomas Plumer, in Christopher v. Sparke, 2 Jac. 4 Walk. 1234. 5 Bingham, 421. With respect to notice to quit, the American authorities differ. In Massachusetts, Connecticut, and Pennsylvania, and probably in other states, the English rule is followed, and the notice is not requisite. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakenan v. Banks, Ibid. 445. Groton v. Boxborough, 6 Mass. Rep. 50. Duncan, J. in 9 Serg. & Rawle, 311. But in New York, by a series of decisions, notice to quit was required before the mortgagor could be treated as a trespasser, and subjected to an action of ejectment. It was required, on the ground of the privity of estate, and the relationship of landlord and tenant, and which is a tenancy at will by implication; but the rule did not apply to a purchaser from the mortgagor, for there the priority had ceased. Jackson v. Laughhead, 2 Johns. Rep. 75. Jackson v. Fuller, 4 Ibid. 215. Jackson v. Hopkins, 18 Ibid. 487. But now by the N.Y. Revised Statutes, vol. ii. 312. sec. 57. all this doctrine of notice is superseded, and the action of ejectment itself, by a mortgagee or his assigns or representatives, abolished. The mortgagee is driven to rely upon a special contract for the possession, if he wishes it, or to the remedy by foreclosure and sale, upon a default; and this alteration in our local law would appear to be a reasonable provision, and a desirable improvement. The action of ejectment not being a final remedy, is vexatious, and the possession under it terminates naturally in a litigious matter of account, and a deterioration of the premises.
73. Patridge v. Bere, 5 Barnw. & Ald. 604.
74. Buller, J. in Birch v. Wright, 1 Term Rep. 383. Sir Thomas lumer, in Cholmondelly v. Clinton, 2 Jac. 8; Walk. 183. Coote on the Law of Mortgage, 327-334. Coventry’s Notes to 1 Powell, 1.57. 175. edit. Boston, 1821..
75. 1 Powell, 159. note 160-162. See also Thunder v. Belcher, 3 East. 449.
76. Jackson, J. in 15 Mass. Rep. 270. Parker, Ch. J. 1 Pick. 90. Duncan, J. 9 Serg.& Rawle, 311. N.Y. Revised Statutes, vol. ii. 312.
77. Emanuel College v. Evans, 1 Rep. in Ch. 10. In the case of Rosecerrick v. Barton, 1 Cases in Ch. 217. Sir Matthew Hale, when Chief Justice, showed that he had not risen above the mists and prejudices of his age on this subject, for he complained very severely of the growth of equities of redemption, as having been too much favored, and been carried too far. In 14 Richard II. the Parliament, he said, would not admit of this equity of redemption. By the growth of equity, the heart of the common law was eaten out. He complained that an equity of redemption was transferrable from one to another, though at common law a feoffment or fine would have extinguished it; he declared he would not favor the equity of redemption beyond existing precedents.
78. 1 Yarn. 7. 2 Vent. 364. 1 Vern. 232. V. C.
79. 1 Vern. 190.
80. In Seton v. Slade, 7 Vesey, 273. Lord Eldon observed, that the doctrine of the court gave countenance to the strong declaration of Lord Thurlow, that no agreement of the parties would alter the right of redemption. And as to the recognition of the doctrine with us, see Holdridge v. Gillespie, 2 ‘Johns. Ch. Rep. 30. Clark v. Henry; 2 Cowen’s Rep. 324. Wilcox v. Morris, 1 Murphy, 117. In Newcomb v. Bonham, 1 Vern. 7. Lord Nottingham held, that the mortgagee might compel the mortgagor, at any time, to redeem, or be foreclosed, even though there was a special agreement in the mortgage that the mortgagor was to have his whole lifetime to redeem; but his successor, on a rehearing, (1 Vern. 232.) reversed his decision, and held, that the party had his whole lifetime, according to his contract; and this last decree was affirmed in Parliament.
81. Casborne v. Scarfe, 1 Atk. 603. 2 Ac. 8J Walk. 194. note S. C.
82. The King v. St. Michaels, Doug. Rep. 630. The King v. Edington, 1 East’s Rep. 288. Jackson v. Willard, 4 Johns. Rep. 41. Runyan v. Mersereau, 11 ibid. 534. Huntington v. Smith, 4 Conn. Rep. 235. Willington v. Gale, 7 Mass. Rep. 138. McCall v. Lenox, 9 Serg. & Rawle, 302. Ford v, Philpot, 5 Harr. 8r Johns. 312. Wilson v. Troup, 2 Cowen’s Rep. 195. Eaton v. Whiting, 3. Pick. Rep. 484. Blaney v. Bearce, 2 Greenleaf, 132. The growth and consolidation of the American doctrine, that until foreclosure the mortgagor remains seized of the freehold, and that the mortgagee has, in effect, but a chattel interest, was fully shown, and ably illustrated, by the Chief Justice of Connecticut, in Clark v. Beach, 6 Conn. Rep. 142.; and these general principles were not questioned by the court.
83. Lyster v. Dolland, 1 Vesey; jun. 431. Scott v. Scholey, 8 East’s Rep. 467. Metcalf v. Scholey, 5 Bos. & Pull. 461.
84. Plunket v. Penson, 2 AM. 290. 1 Vesey, jun. 436. S. C.
85. Waters v. Stewart, 1 Caines’ Cases in Error, 47. Hobart v. Frisbie, 5 Conn. Rep. 592. Ingersoll v. Sawyer, 2 Pick. Rep. 276. Ford v. Philpot, 5 Harr. 4 Johns. 312. New Hampshire would appear, however, to form an exception to the general practice of selling an equity of redemption on execution at law. Woodbury, J. in 2 N, F Rep. 16.
86. Jackson v. Willard, 4 Johns. Rep. 41. Blanchard v. Colburn, 16 Mass. Rep. 345. Eaton v. Whiting, 3 Pick. Rep. 484. Huntinton v. Smith, 4 Conn. Rep. 035.
87. Thornborough v. Baker, 3 Swanst. Rep. 628. Tabor v. Tabor. ibid. 636.
88. Lord Hardwicke, in Robinson v. Litton, 3 Rile. 209.!bid. 723, Brady v. Waldron, 2 Johns. Ch. Rep. 148.
89. Peterson v. Clark, 15 Johns. Rep. 205.
90. Smith v. Goodwin, 2 Greenleaf, 173. Stowell v. Pike, ibid. 2P,-,
91. Campbell v. Macomb, 4 Johns. Ch. Rep. 534.
92. Lord Ch. B. Comyns, in Jones v. Meredith, Comyn’s Rep. 670. Bateman v. Bateman, Prec. in Ch. 197. Sharpe v. Scarborough, 4 Vesey, 538. 1 Powell on )mortgages, 312. 369. in notis. Grant V. Duane, 9 Johns. Rep. 591. Hill v. Holliday, 2 Litt. 332. Smith V. Manning, 9 Mass. Rep. 422. Bird v. Gardner, 10 ibid. 364.
93. Anon. 3 Atk. 313.
94. The Master of the Rolls, in Palk v. Clinton, 12 Vesey, 59. Calkins v. Munsell, 2 Root’s Rep. 333.
95. Shirley v. Watts, s AM. 200. Brinckerhoof v. Brown, 4 John’s. Ch. Rep 671.
96. In New Jersey, Delaware, South Carolina, and Mississippi, equity powers reside in, and are exercised by, distinct and independent tribunals upon the English model. This was also the case in New York until 1823, but now the exclusive jurisdiction in equity is withdrawn from the chancellor, and equity powers are partially vested in the circuit judges as vice-chancellors, and they exercise, in distinct capacities, a mixed jurisdiction of law and equity. The same mixed, jurisdiction is partially conferred on the county courts in Maryland and Virginia, and on the circuit courts in Missouri, and exercised concurrently with the chancellors in those states. In the states of Vermont, Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, Ohio, Illinois, Kentucky, Tennessee, North Carolina, and Alabama, the jurisdiction of law and equity is vested in one tribunal; though, in some of those states, chancery powers are confined to a few specified objects; and in Louisiana, the distinction between law and equity, according to the theory of the English law, seems to be entirely unknown. In Massachusetts, the equity powers of the supreme judicial court are very limited. The power to enforce redemption is confined to a statute provision, and the mortgagor must redeem in three years after entry by the mortgagee. See Erskine v. Townsend, 2,Mass. Rep. 493. Kelleran v. Brown, 4 ibid. 443. Skinner v. Brewer, 1 Pick. Rep. 468. Jackson on Real Actions, p. 49. In Pennsylvania, equity powers have been gradually assumed by their Supreme Court, from the necessity of the case, and for the advancement of justice, with the aid of a few legislative provisions. The principles of equity in Pennsylvania have been digested from the acts of the legislature, and the decisions of the Supreme Court, with diligence, ability, and judgment, in a clear and neat little code of equity law, under the unpretending title of An Essay on Equity in Pennsylvania, by Anthony Lausset, jun., Student at Law, 1826.”
97. Sir Wm. Harbert’s case, 3 Co. 14. 1 Powell on Mortgages, 342. b. Stevens v. Cooper, 1 Johns. Ch. Rep. 425. Scribner v. Hickok, 4 ibid. 530.
98. Lord Hardwicke, in Mead v. Lord Orrery, 3 Atk. 244. and Higgins v. York Buildings Company, 2 Atk. 107. Parker, Ch. J. in Wilder v. Houghton, 1 Pick. 90.
99. Moss v. Gallimore, Doug. Rep. 279. Buller, J. in Birch v. Wright, 1 Term Rep. 378.
100. 2 Bing. 54.
101. Ex parte Wilson, 2 Ves. & Beam. 252.
102. Sanders v. Van Sickle and Garrison, 3 Halsted, 31’3. McKircher v. Hawley, 16 Johns. Rep. 289.
103. Jones v. Clark, 20 Johns. Rep. 51. Magill v. Hinsdale, 6 Cone. Rep. 464.
104. N.Y. Revised Statutes, vol. i. 744. sec. S. New Jersey Revised Laws, 192. sec. 1-7. 3 Halsted, 317.
105. Anon.1 Vern. 44. 1 Eq. Cas. Abr. 328. pl. 1 Robertson v: Campbell, 2 Call, 428. Ballinger v. Worsley, 1 Bibb. 195.
106. Williams v. Price, 1 Sim. 8; Stu. 581. 3 Powell on Mortgages, 949. a. note. Hughes v. Williams, 12 Vesey, 493
107. Bonethon v. Hockmore, 1 Vern. 816. French v. Baron, 2 Atk. 120. Godfrey v. Watson, 3 ibid. 517. Langstaffe v. Fenwick, 10 Vesey, 405. Davis v. Dendy, 3 Madd. Ch. Rep. 95.
108. Moore v. Cable, 1 Johns. Ch. Rep. 385. Breckenridge v. Brooks, 2 Marshall, 339. Gibson v. Crehore, 5 Pick. 146.
109. Godfrey v. Watson, 3 Atk. 517. Lord Alvanley, in 4 Vesey, 480. Moore v. Cable, 1 Johns. Ch. Rep. 385. Saunders v. Frost, 8 Pick. 259.
110. Exton v. Greaves, 1 Vern. 138. Talbot v. Braddill, ibid. 183. note.
111. In Conway v. Alexander, 7 Cranch, 218. the Circuit Court for the District of Columbia, directed an allowance for permanent improvements; and though the decree Was reversed on appeal, that point was not questioned. So, in Ford v. Philpot, 5 Harr. 4 John&. 312. a similar allowance was made in chancery, and that point was untouched in the Court of Appeals. In Russell v. Blake, 2 Pick. 505. it was said, that the mortgagee could not be allowed for making any thing new, but only for keeping the premises in repair. All the cases agree, that the mortgagee is to be allowed the expense of necessary repairs, and beyond that the rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular case.
112. Holdridge v. Gillespie, 2 John&. Ch. Rep. 30.
113. N.Y. Revised Statutes, vol. i. 756. sec. 1. Ibid. 762. sec. 3’7. The term purchaser, in the statute, is declared to embrace every mortgagee, and his assignee.
114. In Pennsylvania, no deed or mortgage is good unless recorded in six, and in Delaware, no mortgage is good unless recorded in twelve months; and in Massachusetts, Rhode Island, Connecticut, and some other states, the deed does not operate until recorded, except as between the parties and their heirs. In Ohio, deeds must be recorded in six months, and an unrecorded deed is void against a subsequent purchaser for valuable consideration, without notice of the deed, whether the subsequent deed be, or be not recorded.
115. Com. de l’Ord. de Louis XV. sur les Substitutions, par JK. Furgole, cited by Mr. Butler, note 249. sec. 11. to lib. 3. Co. Litt. Pothier, Traité des Substitutions, art. 4. sec. 6.
116. Code Civil, No. 1071, Le Defaut de transcription ne pourra Ere supplde ni regarde, comme couvert par la connaiasance que lea creanciers ou let tiers acquereurs poarraient avoir eue de la disposition par d’autres vaies que celle de la transcription. This regulation is almost in the very words of the ordinance respecting French entails promulgated under the auspices of Chancellor D’Aguesseau. (Euvres D’.A,,uue.vseau, t. 12. p. 476. oct. ed.
117. Davis v. The Earl of Strathmore, 16 Vesey, 419. ‘
118. 3 Atk. 646. 1 Ves. & Beam. 436. S. C.
119. Code Civil, n. 941. Mr. Butler and Mr. Miller discover a strong partiality for the French rule, and they consider the English doctrine to be another sample of judicial legislation, such as the introduction of common recoveries to bar entails, and the revival of uses under the name of trusts; and they insist, that it is now so inconvenient as to be generally lamented. Butler’s Reminiscences, vol. i. p. 38.,Miller’s Inquiry into the Civil Law of England, p.-304. Mr. Humphrey, in his Outlines of a Code, p. 324. will not allow notice of any kind to disturb the order and priority of registration, and he is very hostile to the equity doctrine of notice. There is no doubt that the doctrine of notice, replete as it is with nice distinctions, is troublesome. But the law would not be a science luminous with intelligence, humanity, and justice, if it did not abound in refinements. General, and inflexible rules, without modification or exceptions, would be tyrannical and cruel, like the bed of Procrustes, or the laws of Draco. It is in vain to think of governing a free and commercial people, abounding in knowledge and wealth, by a code of simple and brief rules. Subtlety will be exerted to evade them, and use them as instruments to circumvent. The tide of improvement necessarily carries with it complicated regulations, and the wants and vices of civilized life, and the activity and resources of a cultivated intellect, inevitably introduce ten thousand refinements in the civil law.
120. Farnsworth v. Childe, 4 Mass. Rep. 637. McMechan v. Griffing, 3 Pick. 149. Taylor v. McDonald, 2 Bibb, 420. Guerrant v. Anderson, 4 Randolph, 208. Jackson v. Sharp, 9 Johns. Rep. 164. Jackson v. Burgott, 10 Johns. Rep. 457. Roads v. Symmes, 1 Hammond, 281. Muse v. Letterman, 13 Serg. & Rawle, 167. Hudson v. Warner, 2 Harr. 81 Gill, 415. In the case of Righton v. Righton, 1 Const. Court, S. C. 130. it was said to be doubtful, whether a purchaser with notice was bound by a deed unrecorded; but other cases in that state put this point out of doubt, and hold him bound. Forrest v. Warrington, 2 Dess. 254. Tait v. Crawford, 1 M ‘Cord, 265.
121. Lord Hardwicke, in Hine v. Dodd, 2 Atk. 275. Lord Alvanley, in Jolland v. Stainbridge, 3 Vesey, 478. Jackson v. Elston, 12 Johns. Rep. 452. Dey v. Dunham, 2 Johns. Ch. Rep. 182. McMechan v. Griffing, 3 Pick. 149.
122. 8 Johns. Rep. 137. 1 Hammond’s Ohio Rep. 281.
123. Cushing v. Hurd, 4 Pick. 253.
124. 10 Johns. Rep. 457.
125. 5 Barnw. & Ald. 142.
126. Jackson v. Dubois, 4 Johns. Rep. 216. Jackson v. Terry, 13 Ibid. 471. Jackson v. Town, 4 Cowen, 605. Ash v. Ash, 1 Bay, 304. Ash v. Livingston, 2 Ibid. 80. Penman v. Hart, ibid. 251. Hamilton v. Levy, 1 McCord’s Ch. Rep. 114.
127. Semple v. Burd, 7 Serg. & Rawle, 288.
128. N.Y. Revised Statutes, vol. i. p. 749. sec. 5.
129. Latouche v. Dusenberry, 1 Sch. 4 Lef. 157. Bushell v. Bushell, ibid. 90. See also the opinion of Sergeant Hill, in 4 Madd. Ch. Rep. 286. note.
130. Morecock v. Dickins, mb. 678.
131. Johnson v. Stagg, 2 Johns. Rep. 510. Frost v. Beekman, 1 Johns. Ch. Rep. 298. 18 Johnson, 544.. S. C. Peters v. Goodrich, 3 Conn. Rep. 146. Hughes v. Edwards, 9 Wheaton, 489. Thayer v. Cramer, 1 McCord’s Ch. Rep. 395. Evans v. Jones, 1 Yeates, 174.
132. Heister v. Fortner, 2 Binney, 40. Hodgson v. Butts, 3 Cranch, 140. Frost v. Beekman, 1 Johns. Ch. Rep. 300. But see Morrison v. Trudeau, in Chrysty’s Dig, of Decisions in Louisiana, tit. Mortgages, 4. pl. 8. where such a deed is said to operate as notice to third persons.
133. Shuttleworth v. Laycock, 1 Vern. 245. Baxter v. Manning, ibid. 244. Anon. 3 Salk. 84.
134. This was clearly and learnedly shown by Mr. Justice Jackson, in 15 Mass. Rep. 407. and see supra, pa. 130.
135. Troughton v. Troughton, 1 Vesey, 86. Anon. 2 ibid. 662. Heams v. Bance, 3 Atk. 630. Powis v. Corbat, ibid. 556. Lowthian v. hastel, 3 Bro. 162. Hamerton v. Rogers, 1 Vesey, jun. 513. Lord Alvanley, in Jones v. Smith, 2 Vesey, jun. 376.
136. Gardner v. Graham, 7 Viner’s Abr. 52. E. p1. 3. Lyle v. Ducomb, 5 Binney, 585. Hughes v. Worley, 1 Bibb. 200. Liyingston v. McInlay, 16 Johnson, 165. Hendricks v. Robinson, 2 Johns. Ch. Rep. 309. Brinckerhoff v. Marvin, 5 ibid. 326. James v. Johnson, 6 ibid. 420. Skirras v. Caig, 7 Cranch, 34. Story, J. in Conard v. The Atlantic Insurance Company, 1 Peters’ U. S. Rep. 448.
137. Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pasco, 5 ibid. 442. St. Andrew’s Church v. Tompkins, 7 Johns. Ch. Rep. 19.
138. Ex parte Hooper, 19 Vesey, 477.
139. Heineccii, Elem. Jur. Civ. secund. ord. Pand. b. ii. tit. 4. sec. 35. Opera, tom. 5. Part 2. p. 350.
140. Lord Elden, 11 Vesey, 619..
141. 2 Vent. 337.
142. 2 P. Wms. 491.
143. The law established by these decisions has been regularly transmitted down in Westminster Hall unshakenly to this day. Belchier v. Butler, 1 Eden, 523. Frere v. Moore, 8 Price, 475.
144. 1 Sch. 4 Lef. 157. 430. In McNeil v. Cahill, 2 Bligh, 228. on appeal to the House of Lords, in an Irish case, it was declared, that if the deed posterior in date and execution, be first registered, even with notice of the other deed, it has priority both in law and equity, but this does not apply to the case of a fraudulent priority of registry.
145. Grant v. U. S. Bank, 1 Caines’ Cases in Error, 112. Feb. 1804. This was the earliest case that I am aware of in this country, destroying the system of tacking. In that case, I had the satisfaction of hearing that profound civilian, as well as illustrious statesman, General Hamilton, make a masterly attack upon the doctrine, which he insisted was founded on a system of artificial reasoning, and encouraged fraud See also, 11 Serg. & Rawle, 223. 3 Pick. 50. 6. munf. 560.
146. i Haines v. Beach, 3 Johns. Ch. Rep. 459.
147. The law concerning notice, express aud implied, is very amply discussed by Mr. Coventry, in his notes to Powell on Mortgages, tool, ii. ch. 14. p. 561-662. and the American editor, Mr. Rand, has, with a thorough accuracy, collected all the cases and decisions in this country appertaining to the subject. The immense body of English learning with which Mr. Coventry has enriched every part of the original work of Powell, is not only uncommon, but very extraordinary. There never were two editors who have been more searching, and complete, and gigantic in their labors. The work has become a mere appendage to the notes, and the large collections of the American editor, piled upon the vastly more voluminous commentaries of the English editor, have unitedly overwhelmed the text, and rendered it somewhat difficult for the reader to know, without considerable attention, upon what ground he stands.
I acknowledge my very great obligations to those editors for the assistance I have received from their valuable labors; but I cannot help thinking, that Mr. Coventry would have better accommodated the profession, if he had written an original treatise on the subject, and we should then probably have had, what is now wanting in the present work, unity of plan, adaptation of parts, and harmonious proportion. Several of his essays in the notes, as, for instance, those relating to receivers-equitable assets-voluntary settlements- the wife’s equity-when debts, as between the representatives of the deceased, are to be charged upon the real, and when on the personal estate-interest and usury, etc. have no very close application to mortgages. Mr. Coote’s “Treatise on the Law of Mortgage,” is neat, succinct, and accurate, and free from several of the objections which have been suggested.
148. Mondey v. Mondey, 1 Ves. & Beam. 223.
149. Johns. Ch. Rep. passim. Nelson v. Carrington, 4 Munf. 332. Downing v. Palmateer, 1 Monroe, 66. Humes v. Shelby, 1 Tenn. Rep. 79. Hurd v. James, ibid. 201. Rodgers v. Jones, 1 McCord’s Ch. Rep. 221. Paunell v. Farmers’ Bank, 7 Barr. 4 Johns. 202. David v. Grahame, 2 Harr. 8f Gill, 94.
150. Lockwood v. Lockwood, 1 Day, V5. Lyon v. Sanford, 5 Conn. Rep. 544. Swift’s Dig. vol. ii. 656. 683. Erskine v. Townsend, 2 Mass. Rep. 493. Baylies v. Bussen, 5 Greenleaf, 153. Swett v. Horn, 1 N. R. Rep. 332. The practice of a strict foreclosure has also been allowed in North Carolina. Spiller v. Spiller, 1 Hayw. 482.
151. Edwards v. Cunliffe, 1 Madd. Rep. 287. Perine v. Dunn 4 Johns. Ch. Rep. 190.
152. 2 Bro. 125. Dickens, 785. S. C.
153. Dashwood v. Blythway, 1 Eq. Cas. Abr. 317. pl. 3. Mosely, 196. S. C. Perry v. Barker, 13 Vesey, 198.
154. Lord Thurlow’s opinion, as represented by Sir Samuel Romilly, and by Lord Eldon, in Perry v. Barker, 8 Vesey, 527. Hatch v. White, 2 Gallis. 152. Amory v. Fairbanks, 3 Mass. Rep. 562. Globe Ins. Co. v. Lansing, 5 Cowen, 380. Omaly v. Swan,3 Mason, 474.
155. Booth, v. Booth, 2 Atk. 343. Burnell v. Martin, Doug. 417. Schoole v. Sall, 1 Sch. 4 Lef. 176. Dunkley v. Van Buren, 3 Johns. Ch. Rep. 330. Hughes v. Edwards, 9 Wheat. Rep. 489.
156. 2 Johns. Ch. Rep 125.
157. The N.Y. Revised Statutes, vol. ii. 368. sec. 31, 32. have carried the suggestion into effect, and prohibited the sale at law of the mortgagor’s equity by the mortgagee, on a judgment for the debt secured by the mortgage. In Massachusetts, likewise, similar embarrassments have been felt, and the law there is, that the mortgagee cannot sell the equity of redemption in discharge of a debt secured by the mortgage. Atkins v. Sawyer, 1 Pick. 351. The N.Y. Revised Statutes have, in other respects, materially changed the established practice ou this subject. It is now declared, that while a bill of foreclosure is pending in chancery, and after a decree thereon, no proceedings shall be had at law for the recovery of the debt, without the authority of the Court of Chancery; and, on the other hand, if a judgment has been. obtained at law for the mortgage debt, or any part of it, no proceedings are to be had in chancery, unless an execution has been returned unsatisfied in whole or in part, and it be stated in the return. that the defendant had no property to satisfy it except the mortgaged premises. N.Y. Revised Statutes, vol. ii. 191. sec. 153. 156. The statute goes on and declares, that if the mortgaged premises should prove insufficient to satisfy the debt, the Court of Chancery has power to direct the payment by the mortgagor of the unsatisfied balance, and to enforce it by execution against the other property, or the, person of the debtor. (ibid. sec. 152.) As the action of ejectment upon a mortgage is abolished, (ibid. p. 312. sec. 57.) the jurisdiction at law over the debt, as well as over the pledge, would appear by these provisions to be taken away and transferred to chancery at the election of the e mortgagee. The alteration has affected a general principle, and its propriety in this latter extent of it, may be questioned. The object of the provision undoubtedly was, to give unity and simplicity to the remedy, and prevent unnecessary expense; but as the law stood before the statute, the creditor was obliged to resort to law upon his bond, for the unsatisfied portions of his debt, after the proceeding in rem had been exhausted; and if the debtor had any defense by payment, release, insolvent’s discharge, or otherwise, he was enabled to have it decided before the common law tribunal for the trial of matters of fact, and of that tribunal he is now deprived at the election of the creditor.
158. Godfrey v. Chadwell, 2 Vern. 601. Morret v. Westerne, 2. Vern. 663. Hobart v. Abbott, P. Wm.a. 643. Fell v.. ‘Brown, 2 Bro. T’16. Bishop of Winchester v. Beavor, 1 Vesey, 314. Sherman v. Cox, 3 Ch. Rep. 46. Haines v. Beach, 3 Johns. Ch. Rep. 459. Lyon ySaudford, 5 Conn. Rep. 544. Renwick v. Macomb, 1 Hop*. 277. The English practice is to settle by decree the order of payment according to priorities, and the decree is, in detail, that the second encumbrancer shall redeem the first, the third the second, and so on. See Mondey v. Mondey, 1 Ves. & Beam. 223. and 3 Merivale, 216. note.
159. The N. 1. Remised Statutes, vol. ii. 192. sec. 158. declare, that the deed to the purchaser at a sale under the decree of foreclosure, shall be an entire bar against all the parties to the suit, and their heirs respectively, but the statute goes no further.
160. The N.Y. Revised Statutes, voL ii. 192. sec. 159; 160. direct the surplus arising upon the sale to be brought into court for the use of the defendant,-or of the person who may be entitled thereto, subject to the order of the court, and if not called for in three months, it is to be put out at interest for the benefit of the defendant, his representatives or assigns.
161. Penniman v. Hollis, 13 Mass. Rep. 429. On a sale by the mortgagee, in the lifetime of the mortgagor, the surplus is personal estate, but if the Bale he after the mortgagor’s death, the surplus, as well as the equity of redemption, belongs to his’ heir. Wright v. Rose, w Sim dr_Stte: 32 Moses v. Murgatroyd, 1 Johns. Ch, Rep. 130.
162. Com. Dig. tit. Chancery, 4. A. 9. Demarest V. Wynkoop, 3 John*. Ch. Rep. 145. Scott v. Macfarland, 13 Mass. Rep. 309. Grace v. Hunt, Cooke’s Tenn. Rep. 344. Denn v. Spinning, 1 Hal-sted’s Rep. 471. The cases, as to parties, are collected in 3 Powell on Mortgages, 968-977. 989-992.
163. Cholmley v. Oxford, 2 Atk. 267. Sir William Grant, ‘in The Bishop of Winchester v. Paine, 11 Vesey, 199. Perine v. Dunn, 4 Johns. Ch. Rep. 140.
164. Jenner v. Tracy, cited in Cox’s note to 3 P. Wins. 287. Belch v. Harvey, ibid. Anon. 3 Atk. 313. Aggas v. Pickerell, ibid. 225, Smith v. Clay, 3 Bra. 639, note. Lord Kenyon, in Bonny v. Ridgard, cited in 17 Vesey, 90. Hodle v. Healey, 1 Ves. & Beam. 536. Demarest v. Wynkoop, 3 Johns. Ch. Rep. 129. Kane v. Bloodgood, 7 ibid. 90. Slee v. Manhattan Company, 1 Paige, 48. Lamar v. Jones, 3 Harr. 4 Mc Henry, 328. Sir Thomas Plumer, in Chalmer v. Bradley, 1 Jac. 4 Walk. 83. Lyttle v. Rowton, 1 Marshall, 519. Elmendorf v. Taylor, 10 Wheaton, 168. Lord Redesdale, in Cholmondeley v. Clinton, 2 Jac. 4s Walk. 191.
165. N. Y. Revised Statutes, vol. ii. 301. sec. 49, 50,, 51, 52. The period of limitation of a right of entry upon land varies very mate rially in the different states. It is 30 years in Mississippi; 21 years in Pennsylvania and Ohio; 20 years in Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, Alabama, Kentucky, Indiana, and Missouri; 15 years in Vermont and Connecticut; 10 years in Louisiana; 7 years in North Carolina, Tennessee, and Georgia; and 5 years in South Carolina. See the Appendix to Mr. Angell’s learned, accurate, and valuable Treatise on the Limitation of Actions at Law and Suits in Equity. But after entry by the mortgagee, upon default or hy writ of entry, ‘the limitation of the right of redemption in the New England States, is not regulated by the general limitation to a right of entry, hut is, as we have already seen, very much reduced.
166. Corbett v. Barker, 1 Anst. 138.
167. 1 Sim. 4 Stu. 471.
168. Blake v. Foster, 20 Ball & Beam. 575.
169. N. Y. Revised Statutes, vol. ii. 301. sec. 52.
170. According to the principle of the decision in Wells v. Prince, 9 Mass. Rep. 508. though a remainder-man should have acquired a right of entry in the lifetime of a devisee for life, yet he was not bound to avail himself of it, and might enter after his second right accrued by the death of the tenant for life.
171. Hillary v. Waller, 12 Vesey, 239. Cooke v. Soltan, 2 Sim. s, Stu. 154. Moore v. Cable, 1 Johns. Ch. Rep. 385. Giles v. Baremore, b Johns. Ch. Rep. 545. Jackson v. Wood, 12 Johns. Rep. 244, Ross v. Norvell, 1 Wash. 14.
172. Whiting v. White, Cooper’s Eq. Rep. 1. Reeks v. Postlethwaite, ibid. 161. Barron v. Martin, ibid. 189. Hughes v. Edwards, 9 Wheaton, 489. The English rule as to the allowance of parol proof to destroy the effect of the mortgagee’s possession for twenty years, was proposed lately in England to be abolished by the proposition of the real property commissioners, that the mortgagee’s right, founded on twenty years’ possession should not be taken away by any unwritten promise. statement, or acknowledgment.
173. Anon. 6 Madd. Ch. Rep. 15.
174. It is requisite in New York, to a valid execution of the power, that it be previously registered, or the mortgage containing it recorded, and that there be no pending suit at law, nor any judgment for the debt on which an execution has not been returned unsatisfied, and that notice sufficiently descriptive of the mortgage, and the debt, and the land, be published for twenty-four weeks successively, once a week, in a newspaper printed in the county where the lands, or a part of the lands, are situated, and the same also affixed up twenty-four weeks prior to the time of the sale, on the outward door of the nearest court-house of the county. Every such sale must be at public auction, and distinct farms, tracts, or lots, sold separately. The statute further provides, that the mortgagee, and his representatives, may purchase, and every such sale is declared to be equivalent to a foreclosure and sale in equity, so far as to bar the equity of redemption of the mortgagor, and of all persons claiming under him by title suhsequent to the mortgage; but it is not to affect a mortgagee, or judgment creditor, whose title or lien accrued prior to the sale. The statute contains some further directions necessary to he attended to, concerning the contents and disposition of the affidavit of the sale. N. Y Revised Statutes, vol. ii. 545. tit. 15.
175. Doolittle v. Lewis, 7 Johns. Ch. Rep. 50. it was formerly held, that though the mortgagee omitted to record the power, yet that the sale would be binding upon the mortgagor, and bar his equity of redemption. (Wilson v. Troup, 2 Cowen’s Rep. 229. 242.) But the new revised statute would seem to be too precise in its injunctions to admit of such a latitudinary construction. It declares, that to entitle the party to give notice, and to make the foreclosure, it shall be requisite, that the power has been duly registered. and that every sale pursuant to a power as aforesaid, and conducted as therein prescribed, shall be a bar, etc.
176. Van Bergen v. Demarest, 4 Johns. Ch. Rep. 37. Nichols v. Wilson, ibid. 115.
177. Booth v. Rich, 1 Vern. 295. Mills v. Dennis, 3 Johns. Ch. Rep. 367.
178. Dove v. Dove, Dickens, 617, 10 fro, Ch. Cas, 375. 1 Cox’s Cases, 101. S. C. Kershaw v. Thompson, 4 Johns. Ch. Rep. 60.9. Ludlow v. Lansing, 1 Hopkins, 231. Garretson v. Cole, 1 Hqrr. 4 Johns. 370. This power is confirmed by the N.Y. Revised Statutes, vol. ii. 191. sec. 152.
179. White v. Wilson, 14 Vesey, 151. Cunningham v. Williams, Amt. Rep. 344. Williamson v. Dale, 3 Johns. Ch. Rep. 290. Lan-sing v. McPherson, ibid. 424. Bland, Chancellor, in Anderson v. Foulke, 2 Harr. 6; Gill. 355, 356. In that case the Chancellor observed, that biddings were never opened in Maryland, or the sale suspended, merely to let in another and a higher bid. But if either before or after the ratification of the sale, there be any injurious mistake, misrepresentation, or fraud, the biddings will be opened, and the property again sent into the market. Gordon v. Sims, 2.M Cord’s Ch. Rep. 15F 165.; and see the note of the learned reporter in the latter case, page 159, in which the English and American practice on this point is clearly stated, and the inferences therefrom justly drawn.
180. Preston, on Conveyancing, vol. ii. 200, 201.
181. Lord Hardwicke, in Harrison v. Owen, 1 Atk. 520. 1 Sch. cc Lef. 176,177. Judge Trowbridge’s Essay on Mortgages, 8 Mass. Rep. 557. 561, 3. appendix.
182. 5 Mason’s Rep. 521.
183. Lord Hardwicke, in Richards v. gyms, 3 Eq. Cas. Abr. 617. Barnard’s Ch. Rep. 90. S. C. Lord Mansfield, in Martin v. Mowlin, 2 Burr, 978, 979. Johnson v. Hart, 3 Johns. Cas. 322. 1 Johns. Rep. 580. S. C. Jackson v. Willard, 4 Ibid. 41. Renyan v.. Mersereau, 11 ibid. 534. Jackson v. Davis, 18 ibid. 7. Jackson v. Brown, 19 ibid. 325. Wilson v. Troup, 2 Cowen’s Rep. 195. Jackson v. Blodget, 5 ibid. 202. Wentz v. Dehaven, 1 Serg. & Rawle, 312. Kinsey, Ch. J., in Den v. Spinning, 1 Halsted, 471. Morgan v. Davis, 2 Harr. 4 McHenry, 17. Paxon v. Paul, 3 ibid. 399. Story J., in Hatch v. White, 2 Gall. Rep. 155.
184. Judge Trowbridge’s reading on the Law of Mortgage, 8 Mass. Rep. 554. appendix. Warden v. Adams, 15 ibid. 233. Parsons v. Welles, 17 ibid. 419. Vose v. Handy, a Greenleaf, i22. Den v. Dimon, 5 Halsted, 156. Phelps v. Sage, 2 Day’s Rep. 151. Faulkner v. Brockenborough, 4 Rand. 225. Breckenridge v. Brook, 2,Marsh. Rep. 337. But in Gray v. Jenks, 3 Mason’s Rep. 520., a satin= fled mortgage, under the law of the state of Maine, was so fir deemed an extinguished title, as that no action would lie upon it by the mortgagee. The irresistible good sense and equity of such a conclusion, were felt and forcibly expressed by the learned judge who decided that case. The opinions of Judge Trowbridge are cited with the greatest respect in Massachusetts, and he is considered, and I presume very justly, as the oracle of the old real property law. He criticises, very ably, the opinion of Lord Mansfield, and some of the observations attributed to his lordship in Martin v. Mowlin were no doubt very loosely made. Judge Trowbridge insists, that Lord Mansfield confounds the distinction between mortgages of land for a term only, and a mortgage in fee. The former, he says, is but a chattel interest, and the latter an estate of inheritance, descendible as such, and the money due thereon is equitable assets. The Supreme Court of Massachusetts, in Parsons v. Welles, adhere to these views of the subject. But I would observe, with great submission and respect, that the doctrines of Judge Trowbridge, on mortgages, are far in arrear of the improvements of the age, in this branch of the science, and it will not do to take our doctrines of mortgages from Littleton and Coke. The language of the courts of law is now essentially the same as that in equity; and it is said again and again, to be an affront to common sense, to hold that the mortgagor, even of a freehold interest, is not the real owner. To show that many of the positions of Judge Trowbridge are not law at this day, it is sufficient to state, that lie maintains that the equity of redemption is not liable to be taken in execution;-that the mortgage money on redemption goes to the heir, and not to the executor of the mortgagee;-that a third mortgagee, without notice, may buy in the first mortgage, and secure himself against the second;-that the mortgagee in fee has an interest which a creditor may take on execution. The cases of Morgan v. Davis, Paxton v. Paul, Jackson v. Davis, and Jackson v. Blodget, may be selected, as cases in which it has been adjudged in courts of law, that on discharge of the mortgage, after a default, the fee reverts to, and vests in the mortgagor, without any conveyance; and I am persuaded, that most of the courts of law in this country would not now tolerate a claim of title under a mortgage, admitted or shown to have been fully and fairly satisfied by payment of the debt. In New Hampshire, there is a statute provision, which restores the lead to the mortgagor, by simple payment, or tender, after the condition is broken. Sweet v. Horn, 1 Adams, 332.