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Discharge or release. 21. Whether a mortgage is merged in other security for the same debt. 24. Waiver. Xll CONTENTS. CHAPTER XLIX. PAGE Void and Voidable Mortgages of Personal Prop- KRTY 546-558 1. Tlie same rules apply, generally, to real and personal property. 2. What title is necessary in the mortgagor. 6. Misrepresentation or concealment by the mortgagee. 7. Usury. 10. Illegal consideration. . 10 a. Fraud. 14. Fraud against the bankrupt and insolvent laws. CHAPTER L. Foreclosure and Redemption of Mortgages 'Of Personal Property 559-573 1. Effect of a breach of condition; whether the mortgagor has a right of redemption; mortgage and 2>ledge compared. 3. General language of the courts upon this subject. 10. Decided cases. 14. Conditional assignment of a mortgage; whether redeemable. 18. What will prevent a forfeiture by breach of condition; paj'ment, waiver, &c. 23. Forl'eiture in case of joint mortgagees. CHAPTER LI. Foreclosure and Redemption. — Remedies op Mort- gagee AND Mortgagor in relation to the Debt of the Security 574-592 1. General rule as to remedies. 2. Foreclosure by sale, &c. 10. Remedy of the mortgagee at law; suit for the property; concurrent remedies. 12. Whether the mortgagor can maintain a suit for the property. 15. Whether a mortgage creates a personal liability. 16. Whether it prevents a personal liability. 18. Lapse of time; effect upon the title. 19. Parties to a suit in equity. 29. Liability of mortgagee or mortgagor to account. 30. Receivers. 40. P'oreclosure sale. CHAPTER LII. Conditional Sale of Personal Property .... 593-599 CONTENTS. XIU APPENDIX. No. I. FAOB Pawn or Pledge. — Hypothecation 601-619 1. Mortgage and pledge compared and distinguished. Definitions of a pledge per se, and as contrasted with a mortgage. Tlie two forms of security considered in connection. 21. Terms of a pledge ; power of ."ale. 22. Property pledged. 30. Parties; assignment, &C. 34. Delivery. 35. Liability secured; future debts, interest, &c. 38. Remedies, foreclosure, sale, and redemption. 55. Hypothecation. No. II. Statutory Provisions in ri:l.a.tion to Mortgages OP Personal Property 620-658 INDEX 661-703 INDEX TO €ASES CITED. PAOB A. Anderson v. Austin 48, 247 PACK V. Davies 243 Abadie v. Lolicro 211 V. Hooks 507 Abbot V. Baiifield 85, m Anding v. Davis 171 Abbott V. Godfrey 170 Andrews v. Jones 210 V. Goodwin 358, 415 462, 482 V. Scotton 54, 111, 305 V. Stratton 41G Anson v. Anson 156 V. Sturtevant 31'J Anthony v. Jiutler 496, 501 Abel V. Wilder 328, 337 V. Nye 178 Afkley v. Finch 561 Appeal, &c. 249 Adair v. Wright 235 Aj)pk'ton V. Bancroft 530 Adams r. Brown 91 211, 218 Archdeacon v. Bowes 165, 181, 233 V. Essex 212 Armstrong v. Pratt 144 V. l*aynter 135, 136 Arnot V. McClure 240, 241 V. Wheeler 456 Ashhurst i'. The Montoui , &c. 31, 49 Adler v. Claflin 463 Ashton V. Milne 0, 11, 13 ^tna I'. A Id rich 488 Aslnvortli v. Dark 582 V. McCorniick 262 Aston V. Boniayne 237 Aggas V. Pickerell 15, 16 Astor V. Miller 252 Aiken v. Gale 115, 118 V. Turner 266 Albany, &c. v. Stevens 58 Atchison v. Surguine 172 Alden v. Lincoln 456, 465 Atkins V. Sawyer 310, 527 Aldrich v. Martin 421, 591 Atkinson v. Hall 54 V. Sliarp 63 V. Maling 375, 455 Alexander v. Doran 193 V. Richardson 236, 249 ?'. Frarg 175 Attleborough ;•. Commissioners 349 V. Greenwood 325 Attorney-General v. Wins tanley 103 Alexandrie v. Saloy 232 Atwater v. Kinman 58 Allen V. Alien 243 V. Mower 358, 359 V. Clark 97 V. Walker 193 V. DeWitt 46 Augur V. Winslow 269 V. McCalla 483 Avendale v. Morgan 611 V. Parish 313 Averett v. Ward 168 V. I'arker 208 Averill v. Irish 518, 519 V. Sliackelton 195 Ayres v. Shannon 67 r. Taylor 110, i:;o V. Waite 11, 275 Almy V. W'ilbur 25, 59S Ambler v. Warwick 580 American, &c. v. Oakley 254 B. V. Ryerson 208 Ames V. Ames 198, 218 Baasen v. Filers 205 V. Phelps 502 Babbitt v. Bowen 167, 188 Amidown v. Peck 116, 125 Babcock v. McFarland 845 Ainory v. Fairhanks 297 V. Perry 71, 152, 228 V. Francis 286, 287, 288 Bacon v. Kimniel 559 XVI INDEX TO CASES CITED, PAGE Bacon v. Leonard 334 I'. Mclntire 19 Badlani v. Tucker 612 Bag-; r. Jeionie 549, 552 Bajiley v. Bailey 319, 834 Bahr v. Arndt 70 Bailey v. Carter 6, 16 V. Gould 59 V. Merritt 254 V. Murphy 59 V. Mj-rick 89 V. Willard 94 Baird v. McConkey 190, 205 Baker's Case 290 Baker v. Bisliop Hill Colony 378 V. Lehman 210 V. Shepard 167 Balch V. Onion 26 Baldwin v. Allison 76 V. Norton 27 Ballard r. Anderson 309 V. Jones 356 V. Koons 188 Ballinger v. Waller 237 V. Worley 197 Bank, &c. v. Arnold 2^5 V. Chester 218 V. Crary 379, 504, 546, 560, 562 V. Dubuque, &c. 619 V. Guardin V. Jones V. Milton V. Patterson V. Tarleton V. Vance Bard v. Fort Barker v. Bell r. Buel V. Parker V. Stacy Barnard v. Cushman V. Eaton V. Moore Barnes v. Lee Barnett v. Mason Barnhart & Koch v Schuylkill Coal Co, Barraque v. Manuel Barron v. Kennedy V. Martin Barrow v. Paxton Barrows v. Turner Barry v. Bennett Bartels v. Harris Bartlett v. Boyd V. Gale Barton v. May Baskins v. Shannon Basse v. Galleprger Bassett v. McDonel V. Mason 344, 444 604 332 337 251 347, 376 176 324 368 331 490 90 290, 291, 412 377 39 348 N. Y. & 341 221 204 23 434, 457, 602, 605 485 406, 425, 544 353, 454 176 253 188 *423 208 73 301 Batcheldor v. Taylor Batchelor v. Middlcton Bates V. Conrow V. liuddick V. Wilbur Battle V. Griffin Baxter v. Manning Bayaud v. Fellows Beach v. Cooke V. Derby Beall V. Williamson Boals I'. Cobb Bean v. Whitcomb Beauchamp v. Leagan Beavin v. Gove Beckford v. Kemble Beckley v. Munson Beckwith v. Windsor, &c. Bedford v. Duly Beebe v. O'Brien Beedle v. Cook Beekman v. Frost V. Gibbs Beeman v. Lawton Beers v. Hawley V. Waterbury Bein v. Heath Belingall v. Gear Belknap v. Wendell Bell V. Bank, &c. V. Carter V. Shrieve V. Shrock V. Woodward Bellamy v. Cockle Belloc V. Rogers Bellows V. Stone Belmont v. O'Brien Benedict v. Gilman Benner v. Troughton Bennett v. Calhoun V. Conant V. Cooper V. Matson V. Taylor V. Williamson Bentinck v. Willink Benton v. Wood Berger v. Hiester Berhard i'. Darrow Berkshire v. Shultz Berry v. Glover Berthold v. Holman Beville v. Mcintosh Bibb V. Martin Bigelow V. Bush V. Smith V. Weaver V. Willson Biggerstaff v. Loveland Billingsley v. Harrell Billington v. Forbes 444, 369, 31, PACK 194 23, 175 7 132 496 96 376 590 191, 192 507 488, 551 149 205 247 80 106 32, 361 209 41 74 202 190 252 538 200 366, 495 176 60,62 407, 526 386 31 545 147 189 34 169, 286 281 10 269 181 138, 312 278 9,26 267 200 538 106 244 51 266 139 347 272 219 55 149, 156 341, 535 487 328, 330 171 426 255 INDEX TO CASKS CITED. XVU Bird V. Wilkinson 473 Biri\vcr 130 241 Guest V. Byington 114 Goodman v. Kine 231 Gunn V. Brantley 6, 32, 257 V. Pledger 359 589 Gushee i'. Robinson 349 V. White 2 139 Guthrie v. Field 7 Goodrich c. Staples 130 V. Sorrell 167 V. W 11 lard 568 Guy V. Franklin 227 Goodtitle i: Bailey 123 Goodyear v. Brooks 586 Googins ('. Ciilmore 344, 375 378 H. Gordon v. Hobart 90, 94 132 V. Lewis 194 {Tackett r. Manlove 446 V. Mass., &c. 300 363 Hadle v. Ilealey 15 V. Mulhare 73 Hadley v. Cliajiin 198 Gos8 i>. Pilgrim 206 V. Ilaugliton 277 Gould r. White 14 Haffley v. Maier 151 Gouldingf. Swett 404 Ilaight V. Railroad, &c. 217 Goulet i". Asseler 505 Haines v. Beach 156 Governor v. Powell 314 Hale V. Rider 105 Gowan v. Jones 243 Hall V. Bamber 211 Gowin r. T?rancli, &c. 104 V. Cushman 159 Grable v. McCuIloh 173 V. Forqueran 584 Grace r. limit 116 V. Hall 95 Grafton, &c. r. Doe 289 V. Nelson 150 Graham ;'. Garter 168 V. Snowhill 429, 464 V. King 219 V. The Sullivan, &c. 574 XXIV INDEX TO CASES CITED. Hallock V. Smith Halsey v. Christie V. union V. Keed Hamhurg, &f. v. Edsall Hamilton v. Bredeman V. Clarke V. Dobbs V. Milchell V. Rogers ?;. Russell Hammonds v. Hopkins Hancock v. Carlton V. Hancock Handley v. Howe Hanford r. Artcher Hankins v. Inj^ols Hansard v. Hardy Harding v. Coburu, 40i, 405, V. Mill Hardy v. Reeves Hare y. Horton Harkins v. Forsyth Harlan v. Murvell V. Smith Harmer v. Priestly Harper v. Neff Harrington v. Donaldson Harris v. Makepeace Harrison v. Eldridge V. Harrison V. Hicks V. HoUins V. Lee V. Mennomy 167, V. Simons Harshey v. Blackmar Hart V. Burton 347, 583, V. Goldsmith V. Lindsay V. Ten Eyck Hartshorn v. "Williams Hart well r. Blocker Harvey v. Thornton Harwell v. Fitts Haskell v. Bailey V. Gordon Hatch V. Bates V. Gavza V. White Hatfield v. Montgomery Hathaway v. Baldwin Hathorn v. Lewis Ilattier v. Etinaud Haven v. Adams V. Low Hay V. Fairbairn V. Schooley Haynes v. Sanborn V. Seachrest V. Wellington 150 Hays V. Dorsey 136 527 Hazard v. Hodges 258 552 Head v. Goodwin 501, 502 155, 286 V. Ward 445 240 Hedge v. Holmes 306 538 Heighway v. Pendleton 65,66 107 Heimstreet v. Winnie 156 88 Heinlin v. Castro 19 477, 648 Helmbold v. Mann 50 418, 420 Henderson v. Lowry 264 433 V. May lie w 389 17, 27 Hendry v. Quinan 137 223 Hennesy v. Farrell 74 161 Henry v. Clark 568 491 V. FuUerton 309 423 V. Sims 49 454 Henshaw v. Bank, &c. 418 21, 41 Hepburn v. Kerr 330 417, 511, Heppe V. Speakman 845 519 Herren v. Clifford 186 286 Herrick v. Mann 167 22 Hesketh v. Stevens 392 382 Heyer v. Deaves 243 39, 104 V. Pruyn 24, 25 186 Heyland v. Badger 240 77, 199 Hey man v. Babcock 267 90, 232 Hiatt V. Goblt 185 535 Hickman v. Cantrell 346, 354, 356, 595, 86 598 66, 228 Hickock V. Scribner 145 109 Hicks V. Williams 488, 491 587 Higgins V. Frankis 234 535 V. West 42, 65 7 Higginson v. Mein 45 596 Hill V. Beebe 483, 5;i8 , 168, 253 v. Gilman 468, 502 168 V. Hoover 254 160, 258 V. Meeker 220 , 584, 604 Hills V. Farrington 377, 514, 519 102 520, 521 266 Hilt V. Holliday 137 32 Hilton V. Bissell 239 358 V. Lothrop 178 141 V. Waring 619 168 Hinman v. Judson 580 308 V. Kent 51 6, 11, 19 V. Leavenworth 312 515, 516 Hiorns v. Holtorn 34 468 Hipp V. Huchett 231 253 Hitchcock V. U. S., &c. 57 293, 296 Hoare r. Parker .608 566 Hobart v. Abbot 146 131 V. Frisbie 312 483 V. Jouvett 576 196 Hobbs V. Fuller 80, 276, 284 78 Hobby V. Pemberton 52, 215 504 Hobson V. Roles 84 388 Hodgdon v. Naglee 112 260 Hodge V. Gallup 329 504 Hodges V. Croydon 16, 232 145 Hodgson V. Butts 476 280 Hodsou V. Treat 151 INDEX TO CASRS CITED. XXV Hofran v. Frost 273 Hubbel V. Broadwcll 305 Hoit r. lU'inick 487 Ilubby r. Hubby 374 Ilolbrook r. Hakcr 375 Hudson V. Ishell 355 r. 'I'lionias 27<". r. Warner 408 443 Ilolc'omb V. IIolc-Diiil) 102 , 1711 242 Hughes l: BlackwcU 24 Holder! v. Gilbert 1>.)7 V. Cory 464 Hohlrid^e v. Sweet 148 V. Edwards 4, 5, 11, 23 105 Hollin<;er r. Bank, &c. 186 Hull, &c. 394 Holly r. IJrowu 417 Hull V. Carnley 437 504 Iloiiiiaii V. Bank of Nor V.Ik 184 IS'.l I'. LvDii ■ 130 144 Holmes v. liell 5H1 Hume /•. Hreik 422 V. Crane 454 603 Ilmues ('. Siielby 37 106 V. Hall 465 Ilumpliries v. Bartee 474 V. Sprowl 454 lluudit ('. Nash 161 V. West 226 Hundley v. Webb 150 Holroyd v. Marshall 416 Huner v. Doolittle 256 Holton V. Brown 100 Hunnewell v. Goodrich 291 Homer v. Savinjis, &c., 606 Hunt V. Acre 172 V. Zimmerman 31 r. Bidlock 414 Hone V. Fisher 46 V. Daniels 421 Hooker v. Hudson 328 V. Harding 209 Hoopes V. Bailey 88 )'. Holton 451 Hope f. Hayley 409 V. Lewin 38, 56, 57 Hopkins v. Thompson 353 354 578 V. ]{()usmanier 400 r. Ward 214 r. Stiles 275, 280, 304, 30G 307 Hoppin f.' Doty 160 Hunter r. Gaunt 54 Hoppock V. Conklin 258 V. Hunter 309 Horde v. James 38 V. Macklew 166 Horlock r. Smith 261 Hurd V. Coleman 11, 233, 276, 280, Horn V. Volcano 206 284 293 Hornby !■. Cramer 46 V. Gallagher 409 I'. Matcliam 225 Hurst V. Hurst 234 Hosford V. Nichols 107 145, 152 Hurt V. Reeves 445 Hosmer v. Sargent 364 Huston V. Stringham 170, 193 220 Hotchkiss V. Hunt 344 Hutchinson v. Jolmson 383 Hough V. Bailey 198 Hyde r. Dallaway 20 V. Doyle 64 208 Hyland v. Stafibrd 46 Houghton V. Bartholomew 323, 325, Hyman ?-. Kelly 235 479 Hynes v. Morin 249 V. Field 328 V. Mariner 173 I. Ilousatonic, &c. v. Martin 424, 517 522 Hovey v. Bartlett 314 Inches v. Leonard 29 Howard v. Gresliam 130 lug r. Brown 354 V. Handy 276 280 V. Cromwell 54 V. Ilildreth 23 Inge r. Boardman 170, 199 r. Jones 251 Ingersoll v. Sawyer 328 Howe V. Bartlett 520 525 lugleliart r. Bierce 139, 148 V. English 208 Ingrahiim v. Baldwin 272 V. Freeman 413 512 Ingram v. Smitli 64, 570 • V. Keeler 383 Ireland v. Al.bott 82 Howel V. I'rice 21 !'. Woolman 205, 207, 219 Howell V. Elliott 443 Irving V. DeKay 196 V. Hester 260 V. Richardson 385 V. Ripley 104 Irwin V. Morell 547 V. Schenck 249 Isaac V. Clark 609 Howes V. Cm no 439 Ives V. Commissioner, &,c 06 Howland v. ShurtlefF 9, 10 V. Wiiiett 405 J. Hubbard r. Ciiiiiipel 64 V. Jarrell 272 Jackson r. Clark 46 V. Lyman 533 V. Henry 46 XXVI INDEX TO CASES CITED. Jackson r. Hull 088 V. Slater 24 V. Stanforrl 179 r. Vernon 390 V. Warren 264 Jacobs V. Rioliards 166 James v. Brown 249 V. Fisk 208 V. Morey 337 V. Railroad Co. 265 V. Stull 46 Jamison v. Gjemenson 206 Jarvis v. Rogers 008, 609, Oil, 613 V. Woodruff 20 Jaynes v. HuEjlies 15 Jenckes v. Goffe 419, 463 Jenkin v. Row 34 Jenkins v. Eldridge 227 Jenks V. Ward 317 Jenner v. Tracy 12 Jensen v. Woodbury 263 Jesup V. City Bank 160, 190 Jewett V. Felker 331 V. Guild 241 V. Warren 356, 366, 439, 609 V. Whitney 318 Jewitt V. McGowen 319 Johns V. Church 368 Johnson v. Blydenburgh 254 V. Brown 141 V. Candage 293 V. Crofoot 379 V. Donnell 31 V. Harmon 90, 156 V. Hart 146 V. Holdsworth 156 V. Jeffries 469 V. Monell 130 V. Smith 606, 608 V. Sumner 514, 521, 522 Johnston r. Watson 338 Jones v. Ik'tsworth 54 • V. Blum 392 V. Conde 108 V. Costigan 257 V. Creswicke 40 V. Dow 248 V. Grant 152 V. Henry 580, 585 i>. Huggeford 431, 462 V. Parsons 144 V. Phelps 234 V. Porter 100 V. Richardson 410, 518 V. St. John 179 V. Smith 876, 602, 612, 616 r. Stienbergh 150 V. Thomas 313 Jordan v. Farnsworth 491, 501, 519 V. Turner 445, 454 Joslin V. Wyman 282 Jouitt I'. Gaither 40 Joyncr v. Vincent Judah V. Judd Judd V. O'Brien Judson V. Emanuel K. PAOK 443, 450, 548 130 48 156, 199 Kanaga v. Taylor Kea V. Council Kearsing v. Kilian Keith V. Swan Kelley v. Maxwell V. Smith Kellogg V. Conner V. Rockwell Kelly V. Beers V. Burnham V. Israel Kemp V. Carley V. Westbrook 504, Kendall v. N. E. Carpet Co. V. Treadwell Kennebec v. Portland Kent V Allbritain V. Lee Kenton v. Spencer Kerr v. Davidson Kerrick v. Saffery Kilborn v. Robhins Kilian v. Jenkins Killough I'. Steele Kimball v. Connor V. Marshall V. Morrison V. Smith Kimmell v. Willard King V. Bailey V. Duntz V. Longworth V. McCully 35, V. McVickar V. Merchants' Exchange V. The State, &c. Kinlock v. Savage Kinna v. Smith Kinney i>. McClood Kirkham v. Dupont Kittle V. Van Dyck Kittredge v. Bellows i>. McLaughlin Klapworth i'. Dressier Klink V. Cohen Klonne v. Bradstreet Kiiapp V. Burnham Kneeland v. Smith V. Tombat Knetzer v. Bradstreet Knight V. Fair Knowles v. Lawton V. Rablin 90, Knowlton i'. Walker Knox V. Galligan 486 559 186 117, 120 372 281 269 383 331, 332 312 266 408 565, 617 423 46 93 375 513 158 309 179 160 288 643 249 543 100 313, 323 213 444 233 40, 207 286, 272 134 Co. 259 43 106 167 56 143 145, 146 157 101 . 51 263 133 197, 218 262 149 113, 186 ■ 308 130, 152 156, 184 74 27 INDEX TO CASES CITED. xxvn Kolincr ?'. Ashonnuer Kriiiiicr r. Ucbiiian Krebs v. Dodge L. Lacoss V. Kccpan Lafliii r. (irilHtlis LaiiiliLTl's Case Lambert r. Inf::rain's Adni'r r. Lambert Lainerson r. Marvin L'Amoreux v. \'^an(lenbury'li Lanctoii r. Woloott Lane i'. Borland V. l'>8kine V. King r. Mason Langdon v. Buel 433, V. Paul V. Stiles Langstaffe v. Fenwick Langton ;•. Ilorton 386, r. Langton Langworthy v. Little Lanning v. Smith Lansdale v. Clarke Lansing r. Albany, &c. V. Capron V. Goelet V. McPlierson Larimer's Latimer v. Wlieeler Lauglilin r. Ferguson Laverty i\ Moore Lavillebeuvre v. Heirs Law V. Allen Lawler v. Claflin V. Carnell V. Everts V. Fellows V. Fletcher V. Jones i\ Lawrence r. Tucki-r Layman v. Wliiting Leach i'. Kimball Le Blanc v. Bonchereau Lee V. Boteler V. Fellowes V. Huntoon V. Mason i;. Parker Leet V. McMaster Legate >'. Potter Leighton >■. Sliapley Leland r. I^oring V. The Medora Lennon r Porter Lenox >•. Lotrcbe Leonard v. Huntington FAQK PAOK 178 Leonard v. Morris 155 169, 171 70 V. Villars 176 74 Leslie v. Hoffman 548 Levert v. Keilwood 209, 213 Levy V. Welsh 413, 433 Lewis r. Babb 144 V. T)e Forest 234 244 r. Labaune 67 344 V. Owen 864 455 r. Palmer 483 350 V. Smith 174, 179 192 V. Stevenson 431, 449 48 Libby v. Cusliman 528 185 Lies !-. De Diablar 131 2y() Lingan i\ Henderson 26 440 Lister v. Payn 388 149, 108 Litchfield r. Cndworth 315 40 Lithaner r. Koyle 220 489 Littell V. Zuntz 256, 257 560, 005 Little V. Vance 229 304 Littlefield v. Kimball 835 86 Livingston v. Mildrum 252 261 V. Story 116 391, 410 Livor V. Orsor 505 232 Lloyd r. Karnes 180, 242 490, 552 Lobban v. Garnett 473, 050 190 Locke V. Palmer 582, 594 54 V. Whining 553 31 Lockhart v. Hardy 296 216 Lockwood V. Benedict 149 36, 37 V. Ewer 546, 617 259 V. Lockwood 21 249 V. Mitchell 175 , 237, 259 494 Loniis V. Wheeler 267 445 Long V. Storie 167 244, 247 Long Dock Co. v. Mallery 372, 574 57 Long's Adni'r v. Long 177, 204 366 LongstafT'i'. Meagoe 382 230 Longwortii r Flagg 112 250 Look V. Com stock 435 403, 404 Loomer v. Wheelwright 240 59 Loomis V. Stuyvesant 36, 137 299 Lord V. Ferguson 391 211 V. Morris 19, 24, 160 46 Lord Middleton v. Eliot 225 375, 376 Loring v. Cooke 100 241 V. Hailing 46 422, 582 Louden V Dickerson 131 347 Lovell V. Farrington 143 252 V. Li'land 304 314 Lovett V. The German, &c. 187 472 Low V. Pettengill 478, 499 247 Lowe V. Morgan 140 179, 181 Lowell r. Daniels 128 265 !•. North 76 521, 523 Lowndes r. Chisholm 236, 589 570 Lowry v. Ilurd 195 300 Lucas V. Dennison 23 429, 430 !•. Harris 200 278 Luckenbacli j>. Breckenstein 429,447. 308 449 391 Luning v. Brady 150 XXVIU INDEX TO CASES CITED. Lunt V. Lyle Lyistra Lyman Lyne v. Lyon V. Whi taker Barker V. Keith V. Little Sale Sandtord Coburu Elliott I'. Johnson V. Jones V. Perry Lytle V. Reed 239 440 611 238 179 245 137 524 240 506 240 185 66 M. Ill, 129, 255, McCall V. Lenox V. Yard McCalla v. Bullock McCarthy v. White McCombie v. Davies McConejihy v. McCaw McConnel r. Holobush McCormick v. Parry McCotter v. Jay McCourt V. Myers McCracken i*. Hayward McCuUough V. Rankin McCumber i\ Oilman McDaniels v. Flower Brook, &c McDonald v. Simes McDongald r. Hall McDowell V. Lloyd McEwen r. Welles McFadden v. Turner McFarlane r. Richardson McGee v. Davie V. Smith McGowan v. James McGowen v. Hoy McGown V. Yerks McGregor v. Hall V. Williams McGrifF v. Porter McGufFey v. Finley Mclntyre v. Scott V. Whitfield Mclver r. Cherry SIcKeithen v. Butler McKinstry v. Mervin McKnight v. Gordon McLane v. Geer McLarren v. Thompson McLaurin v. Wright McLean v. Lafayette, &c. 238, 251, i". Towle McLear v. Morgan McLemore v. Pinkston McMellen v. Furnass McMillan v. Richards McNair v. Biddle V. Lot McNaughton v. Thayer 132, 475, 518, 390, 366, 65, 35, 77, 112 156 546 19 608 507 232 350 265 499 45 615 61 607 6 131 253 303 347 576 106 273 228 445 161 642 315 349 146 391 228 168 576 46 468 198 501 355 343 46 283 537 187 269 67 8 150 PAGE McNeal v. Emerson 574 McNeill's V. McNeill's 242 McNutt V. Dickson 226 McTaggart v. Rose 846 469 McWhorter r. Huling 327 Macey v. Fen wick 588 Mack V. Grover 157 Macomber v. Baker 520 V. Parker 608 615 Madeiras v. Catlett 142 Madison v. Grant 577 Magee u. Carpenter 433 V. Catching 594 V. Sanderson 185 Magew V. Stevenson 49 Magruder v. Eggleston 219 V. Offutt 169 Main v. Alexander 483 Mair v. Glennie 388 Maney r. Killough 445 Manhattan, &c., v. Greenwich 46 Mann v. Cooper 155 V. Erie 105 V. Richardson 211 Manning v. McClurg 199, 218 229 V. Monaghan 495, 505 591 Maples V. Maples 444 Marcon v. Bloxam 376 566 Markle v. Rapp 64 Marsh v. Lawrence 347, 434 503 V. Woodbury 478 Marshal v. Maury 61,62 Marshall v. Bryant 612 V. Lewis 593 V. Stewart 309 r. Wood 200 Martin v. Bayley 513 V. Bowker 3, 23 V. Harrison 173 V. Jackson 49 V. McReynolds 131, 135 143 V. Noble 129 178 V. Wade 118 Martindale v, Booth 455 Mason v. Davis ^ 331 V. Payne 271 Massie v. Sharpe 249 Matthews v. Wallwyn 261 Mattingly v. Darwin 404 Mattison v. Baucus 503 510 Mans V. Wilson 178 Mavrich v. Grier 137 May V- Eastin 232 V. ]May 255 V. Raw son 168 V. Taylor 200 Mayer v. Salisbury 234 V. Wick 244 245 Maynes v. Moore 267 Maj^o V. Tomkies 168, 169 Mechanics', &c., v. Roberts 46 Mechanics' Bank v. Williams 316 INDKX TO CASES CITED. XXIX PACIK PAOK Meppot V. Mills 432, 457 Mogg V. Baker 411 Melody u. Cliantller 503 , 507, 508 Molineux v. Cobum 619 Mclvin V. Fellows 527 Monkhoutie i\ Hall 388 Meiidt'iiliall c. Ociieltrce 193 Moiinol r. Ibert 376 r. West, &c. 32 Montany v. Uock 354 Mercer i\ Tinsley 313, 505 Montgomery v. Chadwick 16, 69, 203 Mercliants' Ins. Co. v. h inman 307 V. Tutt 77 , irj8, 204 Meredith v. Lackey 157, 194 V. Wight 408, 485 Merriain r. IJarton G Moody V. Wright 410, 412 (». Merriaiii 281 Moomey i\ Maas 171 Merrick v. Avery 409 Moore v. Aylett 359 Merrill v. Dawson 409 481, 574 V. Beasom 284 Merrills v. Swift 28 V. ('able 14 Merritt r. Brown 268 ?'. Cord 151 V. .lolinson 419 V. Harrisburg, &c. 49, 50 r. Wells 101 I'. Reynolds 113 Michigan, &c. v. Brown 14 , 59, 130, V. Semple 228 375 V. Starks 116 Middlesex Bank v. Minot 240, 288 V. Titman 184, 192, 198, 237, Miles V. Blanton 506, 650 245 V. Davis 256 Moreau v. Detchemendy 7 V. Smith 109 Morgan i\ Biddle 394 Milford ?•. Williams 241 V. Davis 9,10 Miller v. Baker 348, 354 513, 525 V. Magoffin 146 V. Blinebury 468 V. IMorgan 11, 16 V. Case 182 V. Rlunib 46 V. Cravens 30, 181 V. Wilkins 106 V. Gregory 193 V. WoDilward 64 V. Helm 25 Moriarty r. Lovejoy 520 V. Hull 255 Morley v. Guild 73 V. McGalligan 133 Morrill v. Noyes 416 r. I'ancoast 344, 464 Morris v. Day 278 V. Rigney 195 V. Floyd 109 V. Tipton 65 V. Lewis 619 V. Whitson 468 V. Way 310 Millinian v. Neher 414 Morrison v. Bowman 265 Mills V. Dennis 37 V. Buckiier 105 V. Van Voorhis 176, 177 ('. Judge 530 Millspaugh c. McBride 238 Morrow v. Turney 444 Miln V. Spinola 392 Morse v. Pike 405, 429 Milne v. Henrj' 457 Morton v. Hodgdon 508, 517, 548 Milroy v. Stockwell 139, 143, 144 Mosely r. Crocket 353, 359 Milton V. Mosher 350, 390, 395, 426 V. Garrett 353 Minis V. Minis 131, 138, 162, 169, Moses V. Walker 469 173 Moshier v. Knox 151 Miner v. Stevens 121, 122 Moss V. Bratton 132 Miners' v. Heilner 384 V. Green 696 Mines v. Moore 60 Mott V. Walkley 237 Minnesota v. St. Paul 203, 266 Multbrd r. Williams 156 Minor ?•. Woodbridge 189 Mullanphy i-. Simpson 67 ]\Iinstiull V. Lioyd 431 Muller r. Henderson 145 Mitchell r. Bartiett 257 Mundy v. Monroe 68 V. Beall 445 M unlock r. Ford 156 V. Cunningham 427 Murphy v. Barefield 597 V. Tighe 209 V. Farwell 263 V. Winslow 554 V. Sterne 16 Mitcheltree r. Stewart 180 Murray v. Burtis 435 Mix r. llotclikiss 87, 223 (•. Catlett 130 Mobile r. Huder 248 V. Fishback 10 ^Mobile, &c. i'. Tahiian 133, 343 Mussina r. Bartiett 38,41 Mobley v. Dubutiue 139 Myers v. Willis 386 XXX INDEX TO CASES CITED. N. PAGE Nagle V. Macy 77, 254 Naples V. Minier 313 Nash V. Ely 435 Nason v. Grant 319 Neilson ?'. Ncilson 337 Neptune, &c. r. Dorsey 249 Newby v. Hill 478 Nevvcomb v. St. Peter's, &c. 24 Newell V. Warner 40G, 495 Newliouse i\ Hill 128 New Jersey, &c. Co. v. Ames 136 New London, &c. v. Lee 606 Newman v. Chapman 146 New Orleans v. Bagley 314 Newton v. Newton 65 New York, &c. v. Milnor 229 New York Life, &c. v. Cutler 182 Nichols V. Webster 345, 560 Nitchie v. Torvnsend 494 Noland v. Clark 612 Noonan v. Lee 210 North V. Crowell 373, 375, 442 V. Drayton 590 North River, &c. v. Rogers 47 Northy v. Nor thy 218 Norton v. Ladd 364 V. Stone 215 Nosier v. Haynes 285 Nott V. Hill 46 Noyes v. Sawyer 140 v. Sturdivant 9 Nunn V. Wilson 431 o. Oakes h\ Gushing 393 Oakham v. Rutland 278 'Fallon v. p:iliott 576 OfTutt V. Flagg 486 Ogden V. Glidden 248 Ohio, &c. I'. Whin 27 Ohling ('. Luitjens 171 Oldham v. Halley 206 O'Leary v. Snediker 114 Oliver v. Eaton 417 Olney v. Adams 120 143 Omaly v. Swan 297 Ontario, &c. v. Strong 209 Orchard v. Hughes 204 Ord V. Smith 22 Osborne v. Tunis 168 304 Osbourn v. Fallows 134 Osgood 0. Pollard 574 V. Stevens 204 207 Otis V. Sill 413, 430 494 Overall v. Ellis 179 Overton v. Bigelow 589 O wings r. Beall 68 Oxnard v. Blake 345, 421 P. PAQE Pagan v. Sparks 180 Page !'. Ordway 377 V. Robinson 281 Paine v. Mason 491, 494 V. Smith 259 Palmer v. Carlisle 140 V. Eyre 20 V. Foote 108 V. Jackson 22 V. Mead 87 Paquin v. Braley ' 248, 272 Pardee v. Van Arken 175 Paris V. Ilulett 304 Parish v. Gates 593 Parker v. Lincoln 175 V. Mercer 249 V. Morrison 374 V. Stevens 145 i'. Storts 257 Parkhurst v. Cory 247, 264 Parks V. Hall 360, 361, 535 Parshall v. Eggart 340, 483 Parsons v. Merrill 529 V. Overmire V. Welles Partridge v. Gordon V. Partridge V. Swazey 344, 355, 619 78 336 148 365, 482 338 470, 561 141 Passebon v. Prieur Patcliin ?'. Pierce Paton V. Murray Patten v. Moore 381 V. Smith 441 Pattison v. Powers 108 V. Shaw 131 Patton V. Stewart 207 Paul V. Haytbrd 517, 542 Paulling V. Barron 314 Pease v. Bancroft 334 V. Benson 44, 98, 99, 279 Pechard v. Rinquet 167 Peck V. Hapgood 116, 221, 222 V. Mallams 168 Peers v. Ceeley 232 Peirce v. Goddard 379 Pele V. Meaux 199 Pell V. Ulmar 46 Pelton V. Farmin 130, 161 Penniman v. Hollis 116, 117 Pennington v. Pyle 577 People V. Becker 47 V. Beebe 264 People's, &c. v. Hamilton, &c. 137, 199 Perdue v. Aldridge 185 Ferine v. Dunn 39, 40, 41 Perkins v. Drye 593 V. Sterne 27 V. Wood 169 Perry v. Adams 333 V. Barker 294, 295 INDEX TO CASES CITED. XXXI PAOE 1 PAOE Perry r. Chandler 55G 1 Price V. The State, &c. 60, 116 V. I lay ward 308, 320 i Pridgen v. Andrews 145, 152 V. reUingill 416 Prior !•. White 444 Person i". Merrick 137, 162 Probert v. Price 34 Persons r. Alsij) 163 Proctor V. Baker 157, 258 Peru r. Ilendriiks 188 ?•. C'owper 20 Peters ;•. Hallistier 360 V. Dates 22 Petne v. Wriglit 21'J Pryce v. Bury 232 Pettibone v. Edwards 145 Pryctr c. Butler 266 V. Perkins 5'Jl Pugh r. Holt 261 V. Stevens H7, 234, 423 Punderson v. Brown 312 Pettis V. Kellogg 372, 405, 517, 546 I'ulnam v. Putnam 96, 101 Peyton v. Ayres 210 V. llussell 289 Phelps r. Butler 326 V. Ellsworth 210, 312 Phene v. Gillon 577 Q. Phillips r. Belden 250 v. Hunter V. Leavitt V. Led ley V. Kicards 390 559 93 391 244 Qucrtier v. Succession Quint V. Little Quirk V. Rodman 254 283 698 V. Sinclair 19 Philly ?-. Sanders 378 Pickard r. Low 452 R. Pickens v. Walker 11 Pierce v. Balkani 222 Rackleff v. Norton 78, 326 V. Knec'land 71 Raflety v. King lii7 V. Potter 50 Railroad, &c. v. Claghorn 156 Pierson v. Clayes 213 Randall i'. Baker 353 IV Byerson 239 V. Cook 435 V. Thompson 238 Rangely v. Spring 283 Pillsbury v. Smyth 318 Rankin r. Reformed, &c. 160 Pitts V. Aldrich 178 Ratclifle r. Davis 176, 611, 616 Piatt V. Robinson 193 Raun V. Reynolds 204, 257 V. Squire 146, 1G5 ,232 Rawson v. Copland 197 Poett V. Stearns 139 Ray V. Law 38 Pogue V. Clark 141 ,225 Raymond v. l*auli 247 Poignard i\ Smith 335 Raynham i'. Snow 120 Polhimus V. Trainer 384 Read i;. Wilson 414 Pomeroy v. Latting 140 Reasoner v. Edmundson 236 V. Smith 611 Rebards v. Cooper 645 V. Winship 78, 274 , 310 Redfield v. Hart 150 Pond V. Clarke 449 Redmond r. Redmond 277 Pool V. Young 45 , 113 Reed r. Bigelow 332 Pooley !'. Budd 410 V. Diven 308 Pope V. Durant 217 V. Eames 444 Porter r. Dement 491 V. Elwell 83 r. King 829 V. Jewett 357, 368, 439 V. Millet 327 ,336 V. Lansdale 219 V. Pillsbury 303 V. Latson 196 Portland, &c. r. Stubbs 3'J4, COS , 606 V. Marble 151 I'otler !•. Crandall 141 Reeder v. Carey 249 r. Ilolden 633 Regina v. Trustees, &c. 378 r. Rowland 46 1 Reuwick v. Macomb 181 V. Small 279 Reynolds v. Green 7 Poutz r. Bistes 57 Rhinehart r. Stevenson 206 Powell V. Ross 176 Rhines r. Pheljys 414, 444, 582 Powers V. Powers 126 Rhode Ishuul, &c. v. Danforth 486, 510 Pratt r. Skolfield 308 Rhodes r. Evans 222 Pressley r. Te?;tard 205 Rice I'. Clark 227 Preston ;' Briggs 86 V. C^obb 391, 394, 427 Price V. Copner 6,7 V. Cribb 226 xxxu INDEX TO CASES CITED. PAGE Ricli V. Levy 551 V. Milk 578 V. Koberts 485 Richards v. Cooper 163, 1G4 V. Worthlev 198 Kifliardson r. Ilildreth 122 r. Parrott 228 Riches v. Evans 431 Richmond v. Aiken 6, 24, 27 V. Woodruff 193 Ricker v. Blanciiard 94 Ridgway }'. Stewart 477 Riley v. McCord 30, 67, 116, 109 Ring V. Franklin 391 Roath V. Smith 167 Robbins v. Parker 459 V. Rice 4 Roberts v. Halstead 202 V. Littlefleld 80 V. Roljerts 87 V. Sykes 619 V. Williams 49, 313 Robertson v. Stark 373 V. Young 70 Robinson v. Cromelein 192 V. Cross 42 V. Fife 5, 6 V. Guild 189 V. Hill 371 V. Holt 551 V. Lewis 559 V. McDonnell 388, 395 V. Rice 388 V. Turner 166 Roby r. Skinner 98 Roche V. Knight 161 Rockwell V. Jones 169 Roddy V. Elam 324 Rodgers v. Jones 106, 142 Roe V. Nicholson Roger V. Meakly Rogers v. Mitchell Roll V. Smalloy Rollins V. Forbes Rood V. Welch Root V. Bancroft Rose V. Bevan V. Paige Rose's, &c. V. Burgess Ross V. Ross Roswell V. Simonton Rowan v. Mercer V. Sharp's Rowe V. Table, &c. I'. Young Rowland v. Leiby Rowley r. Rice 518, 519, Ruckman v. Astor Rugg r. Barnes Russell V. Brown V. Butterfield V. Dudley Russell V. Ely V. Kinney ?\ Winne Ryall i\ RoUe V. Rowles Ryan v. Clanton Ryerson v. Boorman s. PAGE 73 186 646 432 430 490 215, 244 St. John V. Bumpstead 46 V. Turner ' 12, 23 Sale V. Kitson 136 Salisbury v. Phillips 582 Salmon v. Clagett 210 Salory v. Chexnaidre 236 Sanborn v. Dennis 89, 97, 104 Sanders v. Dowell 243 V. Pepoon 644 Sandford v. Bulkley 143 San Francisco v. Lawton 179 Sanger v. Eastwood 482 Sargeant v. Snlberg 358 Sargent v. McFarland 223 V. Wilson 176 Satterwhite v. Kennedy 44 Saner v. Steinbauer 205, 227 Saunders v. Frost 140, 213, 214, 234 Savery v. Sypher 258 Savings, &c. v. Gibb 169 V. Ladd 27 Sawyer v. Fisher 475 V. Pennell 497 Sayles v. Smith 46 Schenck v. Conover 249, 2G6 Schoole V. Sail 106 Schoonmaker i\ Tayloe 176 248 Schwart v. Sears 261 167 Scott I'. Britton 594 84 V. Henry 346 354 162 V. Jackson 67 77 176 V. McFarland 274 371 374 V. Simeral 69 126 127 Scripture v. Johnson 312 418 590 Seamen v. Nicholson 37 163 Sedam v. Williams 188 444 Sedgwick v. Fish 237 347 Segrest v. Segrest's Heirs 102 142 Semple v. Lee 130 131 157 Sessions v. Richmond 232 225 417 Severson v. Moore 193 77 Sewall V. Henry 349 536, 593 286 Sewell i\ Price 358 229 Shackelford v. Stockton 151 521 604 Shannon ?•. Speers 40 589 269 Shapleigh v. Wentworth 480 422 Shapley v. Rangeley 279 60 Sharp V. Brunnings 2Q5 466 Shaw V. Gmy 82 320 V. Hoadley 64 149 INDEX TO CASES CITED. XXXlll Shaw V. McCandless 38G V. McNish 171 Shearer v. Babson 644 Slied I'. Garfield 185 Sheets r. Peabody 45 Sheldon v. Bird G, 169 Shelton v. Atkins 119 Shepard v. Kelly 66 %•• Pratt 337 V- Shepard 187 Sherwood r. I looker 228 V. Reade 44 Shirkey i>. Hanna 140 Shiveley v. Jones 162, 256 Shoffner v. Fogleman 324 Shores v. Seott 257 Shotwell r. Webb 677 Shuart v. Taylor 413 Shulett V. Shufett 47 Shurtleff v. Willard 878, 431, 459, 470, 634 Shuttleworth v. Laywick (Lay- cock) 376 Sigourney v. Eaton 333 Sill V. Ki'tchiini 136 Sinierson v. The Branch, &c. 443 Simonds i: Parker 621 Sims V. Canfield 378 Singleton v. Cox 179 V. Gayle 686 V. Young 488 Skiff V. Solace 441, 467 Skinner v. Beatty 267 V. Brewer 279 V. Buck 77 V. Smith 6 Skirving v. Neufville 643 Skowhegan, &c. v. Farrar 406 Slade V. Rigg 675 Slaughter v. Foust 64, 114, 168 Slee V. Manhattan, &c. 11, 146, 232 Slocum V. Catlin 318 Smack v. Duncan 169 Small V. The Herkimer, &c. 676 Smalley v. Hickok 214, 260, 284, V. Martin Smart i\ Hunt V. McKay Smeathman v. Bray Smith r. Acker V. Anders V. Austin p. Bailey V. Bt-attie V. Bouclier V. Ciiapman V. Coalbaugh V. Edminster V. Green V. Hoyt V. Jenks 285 211, 212 22 216 166, 221 436 67 90, 191 86 866 84 156 421 123 235 206 379, 380, 488 Smith V. Johns V. Kelley V. McLean V. Moore V. Packard V. Pierce V. Putney V. Quartz V. Smith 429, 278 281 405, 486 480, 487 293 247 440 368 132, 249, 421, 469, 517 V. Sweetser 332 V. Trenton, &c. 143 V. Webb 175 V. Zurcher 483 Smithurst v. Edmimds 418 Snyder v. Ilitt 445 V. Stafford . 252 Somerset v. Camman 177 Somerville v. Ilorton 459 Somes V. Skinner 120 Southard v. Perry 248 V. Wilson 83, 303 Southgate v. Taylor 239 South Sea Co. v. Duncomb 610, G18 Southwick V. Hapgood 309 Southworth v. Isham 419 Sowarby v. Russell 200 Sowle V. Chamj)ion 247, 272 Sparhawk v. Wills 204 Sparks v. Liverpool, &c. 676 V. State, &c. 382 Spaulding v. Barnes 682 Spears v. Hartly 27 Speer v. Skinner 375 Spencer v. Amis 468 V. Harvard 46 V. Pierce 372, 376, 591 Spiller V. Spiller 42 Sprague v. Branch 620 V. Graham 101 Spriggs V. Camp 451 Spring V. Haines 3 Spurgeon v. Collier 22 Stackpole v. Robbins 263 Stacy V. Barker 186 Stainbank v. Penning 401, 402 Staines v. Rudlin 42 Stand ish v. Dow 263 Stanley v. Gaylord 547 V. Goodrich 181 Stanton v. Kline 47, 48, 132 Stapp V. Phelps 189 Stark V. Brown 120, 170 V. Mercer 106 Starr v. Knox 392 State Bank v. Abbott 188, 262 !,'. Wilson 61 State of Missouri i;. Evans 194 State V. Lake 324 V. Laval 312 V. Lawson 309 V. Titus 248 XXXIV INDEX TO CASES CITED. PAGE T. Stead V. Banks 40 PAGE Stedman v. Freeman 162 Taber v. Hamlin 355, 468 V. Perkins 500 Taggart v. San Antonio, &c. Co. 217 Steele v. Adams 548 Talbot V. Braddil 3 V. Maunder 179 V. De Forest 560 Stephens v. Bichnell 61 176 Tapfield v. Hillman 408, 409 Sterling v. Kogers 361, 583 Tapley v. Butterfield 350 , 351, 522 Stevens v. Bell 606. 611 Tappan v. Evans 104, 105 V. The North, &c. 49,51 Tarleton v. Vietes 195 Steward v. Allen 314 Taylor v. Cheever 611 V. Lombe 447 V. Dean 820 Stewart v. Clark 202 218 V. Pearce 57 V. Duvall 173 V. Porter 143, 144 V. Fry 587, 590 V. Weld 274, 280 V. Glenn 249 Thayer v. Campbell 140, 142 V. Hanson 343 V. Felt 310 i^ Hutchins V. Nettleton 46 V. Mann 27, 105 247 V. Smith 274 Stoddard v. Forbes 301 V. Stark 500 Stoever v. Rice 338 Theard v. Prieur 338 Stone V. Buckner 194 The Cohoes, &c. v. Goss 147 V. Grubham 455 The Derby, &c. v. Landon ■S03 V. Locke 99, 145 The Gihon v. Belleville, &c. 163, 164 V. Marvel 491 The Globe, &c. v. Lansing 304 V. Welling 206 The Hull, &c. 394 V. Willis 353 Thomas v. Brown 108 Stoney v. Shultz 258 V. Warner 260 Storer v. Little 83 Thompson v. Blanchard 346 , 370, 436, Stowe V. Meserve 481 490 507 547 Stowell V. Goodale 539 V. Campbell 548 Straight v. Harris 161 V. Ellsworth 196 Strang v. Allen 160 V. Moore 544 Street v. Beal 150 247 f. Mount 255 Strider v. Reid 595 V. Parker 308 Stringer v. Davis 304 V. Pettitt 381, 557 Strobe v. Downer 161 V. Smith 387 Strong V. Blanchard 288 301 V. Snow 391 v. Cotton 254 256 V. Somerville 2,46 V. Strong 304 V. Van Vechten 469, 483, Stucker v. S tucker 141 495, 551 Sturges V. Alyea 223 Thorn v. Hicks 390 Sturgis V, Warren 441 Thoruhill v. Gilmer 309, 560 Sturtevant v. Ballard 434 V. Manning 40 Succession of Hickman 546 Thornton v. Davenport 444 Suffern v. Johnson Sullivan v. Hadley 211 V. Pigg 104, 176 559 Thorpe v. Ricks 149 V. Whisler 204 Thurber v. Jewett 361, 528 Sumner v. Bachelder 534 539 560 Thurston v. Prentiss 106 Sutton V. Sutton 132 Tibbs V. Morris 268 Suydam v. Bartle 107 Ticknor v. Leavens 256 Swan r. Wis wall 177 Tiflft V. Barton 511 Sweet V. Lawrence 468 Tirrell v. Merrill 95 V. Porter 70 Todd V. Hardie 355 Sweetzer v. Mead 350 353 Toll V. Killer 265 Sweezy v. Thayer 37 Tompkins v. Halstead 262 Swett V. Brown 611 Tooke V. Hartley 294 Swift V. Dean 313 323 Tooley v. Gridley 228, 243 V. Edson 156 Toplis V. Baker 28 V. Hart 566 ,636 Torrey v. Bank, &c. 237, 240 V. Mendell 277 Totten V. Stuyvesant 130 V. Stebbins 135 Town V. Griffith 491 V. Thompson 441 Townsend v. Newell 611 INDEX TO CASES CITED. XXXV Tower's, &c. 818 Van Home v. Everson 256 Tower v. Wliite 195 Vanhousten v. McCarty 196 Trappes t'. Ilarter 382 Vanniaker r. Van Buskirk 24 Trash v. Wliite 9 Vannest v. Latson 149 Travis v. Bisliop 479 Van Nostrand r. Mansfield 73 Treat v. Gilmore 421 Van Pelt r. Kimball 193 V. rieree 80, 121 V. Kniglit 424 Trciber v. Shaffer 244 Van Riper u. Claxton 191 Tripiett v. Sayre 185 V. Williams 250 Tripp V. Cook 237, 239 Vansant v. Allmon 104 292 Trotter v. White 254 Van Slyke v. Sheldon 45,48 Troy V. Smith 4G8, 4G9, 588 Varney v. Forward 104 Tnuleau v. Mc Vicar 314 Vaughan v. Thompson 345 Trull V. Fuller 383 Vaughn v. Bell 488 Trulock V. Kobey 22, 226 Veach v. Schaup 151 Trustees, &c. v. Snell 255 Veazie v. Somerby 386, 388 405 Tucker v. Buttington 355, 390, 429 Verry v. Richardson 820, 322 V. Buffum 328, 329, 330 i;. Watkins 103 V. Tootner 343, 535 Vinton v. King 19 V. White 25, 54 Vroom V. Ditmas 197 V. Wilson 564, 617 Tufts V. Adams 274 V. Hayes 318 w. Turnbull v. Middleton 420 Turner v. Turner 41 Wade V. Merwin 335 Turnstall v. McLelland 39 V. Miller 175 Tuttle V. Brown 116, 329 Wahl V. Phillips 70 Tylee v. Webb 134, 135 Wainscott v. Silvers 67 Tyler v. Strang 354, 355 Walcutt V. Spencer 118 V. Taylor 573 Walden v. Brown 96 V. Yreka 137 Waldo I'. Williams 60 246 Walker i-. Bank, &c. 146, 156, 167, 244 u. V. Baxter 289 V. Hallett 209 229 246 Underwood v. Miller 387 V. Jarvis 206 253 Union, &c. v. Murphy's 77 V. Sehum 264 V. Thayer 231 V. Sellers 198 208 220 V. Van Rensselaer 182 V. Snediker 433 United States v. Hooe 433 V. Vaughn 416 V. Huth 478 Wall V. Nay 132 V. Sturges 250 Wallace v. Blair 168 United States Bank i-. Carroll 270 V. Dunning 201 Upchurch v. Darnall 599 Wallace's, &c. v. Holmes 168 Upham V. Brooks 135, 202 Waller v. Harris Walton V. Goodnow Ward V. Deering 46 237 73 536 V. V. Sharp 146 V. Sumner 346 606 Valentine v. Havener 157 Wardrop ;;. Hall 54 Valette v. Mason 607 Warner v. Blakeman 242 Vallejo I'. Randall 76 V. Brooks 198 Van Buren i'. Ohnstead 233 V. Gouverneur 196 Vanderkemp v. Shelton 158 , 163, 232 V. Helm 158 Vanderzee ;". Willis 566, 618 Warren v. Boynton 231 Van Dcusen v. I'rink 322 V. ChUds 814 Vandeveer v. Ilolcomb 160, 165 V. Emerson 568 Vandyke v. Brown 131 V. Foreman 248 255 Van lleusen v. Kadcliff 400 Washburn r. Green 254 Van Hook v. Throckmorton 140, 179, Waterman r. Brown 585 237, 266 V. Hunt 249 Van Horn v. Duckworth 168 Watkins v. Gregory 309 XXXVl INDEX TO CASES CITED. PAOK PAGK "Watson r. Spence 152, 445 White V. Pigeon 22 V. AVilliams 454 i\ Watkins 63 Watt V. Alvord 151 V. Watts 156, 247 V. Watt 229 V. Whitney 274 Watts V. Johnson 582, 590 V. Williams 195 V. Wliite 70 White Mountain Bk. v. West 440, 544 Waj'n V. Lewis 34 Whitfield V. Gates 358 Wayne v. Hanham 575 V. Parfitt 389, 592 Wearse v. Pierce 116 Whiting V. Eichelberger 346 Weathersley v. Weathersley 347 V. White 23 Weaver v. Cheeseman 206 Whitlock V. Fisk 152 Webb V. Mann 365 Whitmore v. Parks 690 V. Mexan 158 Whitney v. Allen 206 V. Nightingale 90 V. Buckraan 199 V. Stone 372 V. French 21 V. Walker 400 V. Guild 79 V. WiUiams 270 V. Hey wood 487, 539 Weber y. Sampson 391 V. Lowell 344 Webster v. Vandeventer 141 V. McKinney 145, 283 Weed V. Beebe 156 V. Willard 539 V. Covin 594 Whittelsey v. Beall 185 V. Standley 380, 469 Whittier v. Barnes 697 V. Stevens 130 V. Dow 125 Weiver v. Heintz 31 Wicke V. Lake 180 Welch V. Whittemore 503, 509 Wickendcn v. Eayson 32 Weld V. Cutler 447 Wickersham v. Fetrow 49 Weller v. Harris 40 AViles V. Clapp 495 Wellington v. Gale 335, 336 Wiley V. Angell 244, 246 Welsh V. Bekey 457, 458 V. Pinson 143 V. Usher 389 V. Zashlee 445 Wendell v. Abbott 85 Wilkerson v. Daniels 144, 230 V. N. H. Bank 94, 100 Wilkins v. De Pauw 65 V. Wendell 159 V. Gordon 32 Wentworth v. Leonard 525 V. Sears 580, 589 Wernway v. Brown 219 V. Wilkins 170, 172, 200 Wescott V. Gunn 375, 469 Wilkinson i\ Flowers 27 West V. Chamberlin 298 Willard v. Fiske 95,98 V. Davis 254 V. Rice 420 V. Sliryer 324 Willes V. Levett 106 Westerdell v. Dale 390, 419 Williams's Case 37 Western, &c. v. Potter 146, 162 Williams v. Cheatham 358 Westgate v. Handlin 46 V. Hilton 143 Wetherell v. Spencer 483 V. Kelsey 239 Wetmore v. Roberts 46 V. Roser 605 V. Winans 266 V. Smith 149 Wheeklen v. Wilson 405 V. Sorrell 234 Wheeler v. Newbould 609 Williamson v. Champlin 107 V. Nichols 369 454, 473 V. Crawford 44 V. Van Buren 46 V. Field 130, 134 Wheelwright v Freeman 120 V. Probasco 133 Whipple V. Barnes 27 Willis V. Henderson 136 Whisler v. Roberts 344 V. Mcintosh 62 Wliitaker v. Sumner 310 , 354, 608 Wilson V. Gray 343 Whitbeck v. Edgar 147, 189 V. Hay ward 157 Whitbred v. Lyall 159 V. Leslie 651 White V. Cole 394, 399, 400, 433, V. Little 604, 611, 612 478 , 504, 602 V. McCuUough 49 V. Evans 132 V. Traer 502 V. Ewer 5,16 V. Troup 32 V. Malcolm 55 V. Watts 54 V. Morrison 200 V. Weston 347, 593 V. Phelps 547, 579 V. Wilson 305 INDEX TO CASES CITED. XXXVU Winchester v. Ball 659 Winfrey v. Williams 142 Wing V. Bisliop 612 V. Davis 142 Wiiikc'luian r. Kiser 01 Winslow V. McCall 157, 254 V. Merchants', &c. 406, 411 V. Tarhox 353, 390, 391 Winsor v. McLellau 396, 397, 429, 449, 478, 487 Wiswall V. Ticknor 443 Wiswell V. Baxter 19 Withrow r. Clark 46 Woftbrd V. Thompson 89 Wolcott V. Sullivan 146, 172, 179 Wolf y. Banning 178 V. Heath 45 Wolfe V. Bate 446 V. Dorr 405, 617 V. Dowell 309 Wood V. Dudley 602, 603, 005 V. Jones 11, 18 V. Morgan 619 V. Nisbet 136 V. Oakley 156 V. Stockwell 389 V. lYask 208 V. Williams 134 Woodburn v. Chamherlin 365 Woodbury v. Lewis 59 V. Manlove 62 Wooden v. Haviland 201 Woodhull V. Osborne 246 Wood Ice V. Burch 242 Woodman v. Chesley 344 Woodruff V. Depue 148 Woods V. Gilson 308 Woodstock Bank i'. Lamson 232 Woodward v. Cowdery 283 V. Fitzpatrick 39, 548, 577 V. Gates 441, 467 Wootton V. Wheeler Worlcy r. Naylor Wormouth r. Hatch Worseley v. DeMattos Worster /•. (ireat Falls, Wortliiiijiton r. Lee Wright (.'. Bundy V. Dudley ?'. Kaves V. Langley V. McKean V. Ross V. Tukey Wurcherer ;;. Hewitt Wurtz V. Ileynes Wylie V. McMakin Wyman v. Babcock Wynn v. Ely Yarborough v. Newell Yates V. Hambly V. Woodruff Yelverton v. Shelden &c. York Manuf. Co. v. Cutts Young V. Epperson V. Graff V. McKee V. Schenk V. Thompson V. Ward V. Young Youngblood v. Keadle Youse V. McCreary Zeiter i;. Bowman I'AUE 309 76, 244 187 552 84, 278 54, 146 134, 162, 486 163 23 178 156 340 281 180 667 162, 210, 219 21, 79 588 17 21, 134 259 130 191 354 61 200 160 181 564 161 482 64 532 THE LAW OF MORTGAGES. THE LAW OF MOETGAGES. CHAPTER XXV. FORECLOSURE. — FORECLOSURE BY LAPSE-OF TIME. — EXTINGUISH- MENT OP THE RIGHT OF REDEMPTION BY THE SAME CAUSE. 1. Definition of foreclosure. such extinguishment by lapse of time ; 2. Foreclosure and redemption are re- disabilities, payments, acknowledgments, ciprocal or mutual rights. &c. 3. Extinguishment of the rights of 24. Whether the debt secured by mort- mortgagee or mortgagor by lapse of time, gage is thereby saved from the Statute of 11. Statute of Limitations, whether ap- Limitations ; the debt may be barred, and plicable as such. the mortgage remain good. 16. What circumstances will prevent § 1. The subject o^ foreclosure has been so often inciden- tally alluded to in the preceding chapters, and indeed makes SO inseparable a part of every title of the law of mortgages, that no other formal definition of it seems to be necessary, in commencing the particular consideration of this somewhat extensive topic, than to say : that foreclosure is the process by "which a mortgagee himself acquires, or transfers to a pur- chaser, an absolute title to the property, of which he has previously been only the conditional owner, or upon which he has previously had a mere lien or incumbrance. This, however, is only a general definition. In a late case in Connecticut, the legal effect of a foreclosure is precisely defined. The question arose, whether by foreclosure of a prior mortgage the mortgagee acquired the mortgagor's right to redeem a subsequent mortgage. It was held that he did upt. The Court remark : " We familiarly say, that a fore- 2 THK LAW OF MORTGAGES. [CH. XXV. closure invests tlie petitioner with the interest of the party foreclosed ; but we thus describe a practical effect rather than state what is absolutely true. As between the two parties to the bill, such a proceeding passes the mortgagor's title as effectually as a judicial sale, because it extinguishes all the title he had. All, however, that is formally done is the extin- guishment of the right, the interposition of a perpetual legal bar against the party foreclosed. Such is the plain, literal meaning of the terms used. Tlie decree only professes to close a door, which equity before had kept open ; not to con- fer a right or pass a title. The foreclosing creditor succeeds therefore to nothing, acquires no estate, and purchases no right." ^ It is further remarked by the Court, in confirmation of the point decided, that the foreclosure, in refertmce to the second mortgagee, is res inter alios ; that his rights are like those of the assignee of a chose in action; and that the first mortgagee acquires no title by subrogation, having paid nothing for his foreclosure, (a) § 2. In general, the respective rights of mortgagee and mortgagor, with regard to foreclosure on the one hand, and redemption on the other, are treated as mutual; that is, the existence of the former is held to involve that of the latter, and vice versd ; and the fact, that the one cannot legally be enforced under the circumstances, is regarded as sufficient to preclude a claim for the other. (Z>) It is said,^ " the right to 1 Per Storrs, C. J., Goodman v. - Per Kobertson, C. J., Caufman v. White, 26 Conn. 322. Sayre, 2 B. Mon. 206. (a) Awy contract made by the mort- purchaser on the foreclosure can recov- gagor cannot be set up by the mort- er the value of the half on the adjoin- gagee or the purchaser on foreclosure ing lot. Thompson v. Somerrille, 16 against the party contracting with the Barb. 469. mortgagor, any more than it could be A decree of foreclosure only bars set up by such contractor with the the equity of redemption, and does not mortgagor against the mortgagee on affect a title superior to the mortgage, foreclosure. Thus, when a mortgagor McCormick v. Wilcox, 25 111. 274. of a lot, being about to build a house The title of one who has possession, on it, agrees with tlie owner of an and a record title, under alleged defec- adjoining lot, that one-half of the par- five proceedings for foreclosure, is valid ty-wall shall be built on each lot, and against all except the mortgagor and the owner of the adjoining lot shall pay those claiming under liim. Casler v. for the half on his lot when he shall Sliipman, 35 N. Y. 533. use it; neither the mortgagee nor the (6) In a late case in Maine (Chick CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 3 foreclose and the right to redeem are reciprocal and commen- surable." So it has been held, that, where the right of re- demption was expressly restricted to the life of the mortgagor, inasmuch as the mortgagee would not be permitted to foreclose during his life, on the other hand, the heir should not redeem after liis death. ^ (rt) So, in general, upon a bill to foreclose and a bill to redeem, the terms of redemption, for the defendant in the one case, and the plaintiff in the other, arc the same.^ But where the deed provided, that, on payment of the principal money in a certain year, the estate should be redeemed or re- conveyed, it was held, that, although before that time the mort- gagee could not have foreclosed, still the mortgagor might redeem.^ § 3. The mutuality of these respective rights may be further illustrated, by considering the legal effect of limitation or lapse of time upon the title of a mortgagor or mortgagee, who has been deprived of the possession of the land for a certain period. Where the mortgagee has had possession for a certain length of time, it is sometimes said, the mortgage is fore- 1 Bonliam i\ Newcomb, 2 Vent. 3G4 ; '^ Du Vigier v. Lee, 2 Hare, 326. 1 Pow. Vll a. 3 Talbot v. Braddil, 1 Vern. 394. V. Rollins, 44 Maine, 104), the some- to redeem, more than four years after what singular state of facts existed, the cause of action for the debt and wliich gave rise to the following remarks foreclosure of the mortgage accrued, of tlie Court : " It is contended on the Held, the right to redeem and tlie right part of tiie complainant, tliat an inde- to foreclose were reciprocal, and the suit feasible title had been obtained under was barred by the Statute of Limita- the mortgage by a possession for more tions. So notwithstanding a tender of than twenty years, without any claim the debt, after its recovery had been made under tlie mortgagor. On the barred. Cunningham v. Hawkins, 24 other hand, it is insisted, that the same Cal. 403. length of time having elapsed since tlie ('() This, however, was only one of maturity of the notes, they are pre- the reasons for denying the right of sumed to have been paid, and the mort- redemption. To refuse it for this cause gage extinguished ; and in confirmation alone, would probably be inconsistent of this presumption, the non-production with the general doctrine as to limiting of the notes by the complainant is the redemption of mortgages. (See relied upon." It was decided, how- ch. 4.) ever, that the complainant was entitled It is said, foreclosure must be of the to judgment, either as mortgagee or whole, of the mortgaged premises. If absolute owner. Per Tenney, C. J., the mortgagor can reilcem any part, lie Ibid. 115. may redecfra all. Spring v. Haines, 8 In California, a mortgagor filed a bill Siiepl. 12G. , 4 THE LAW OF MORTGAGES. [CH. XXY. closed by entry and possession of the mortgagee, and, else- where, the mortgagor cannot redeem, after being so long de- prived of the possession ; which are but equivalent modes of expressing the same legal proposition. So, on the other hand, long-contiimed possession of the mortgagor may be said either to give him an absolute title to the land, or to extinguish the mortgage and bar the mortgagee's right of action there- upon. Thus in American cases we find the following lan- guage : " The mortgagee's possession is just as consistent with the mortgagor's title, as is the possession of the latter with the title and interest of the mortgagee ; one as well as the other may in tim'e ripen into a valid hostile title, but the intermediate possession cannot be deemed adverse, so far as to defeat or impair transfers of the existing title of the party out of possession. A mortgagee may work a disseisin, but I apprehend within the period requisite for barring redemption, that can only be done by some direct, open, and unequivocal act, in hostility to the title of the mortgagor." ^ So, in another case : " In the case of a mortgagor coming to redeem, that court (equity) has, by analogy to the Statute of Limitations, which takes away the right of the plaintiff, after twenty years' adverse possession, fixed upon that as the period, after forfeit- ure, and possession taken by the mortgagee, no interest hav- ing been paid in the mean time, and no circumstances to account for the neglect appearing, beyond which a right of redemption shall not be favored. In respect to the mortgagee, who is seeking to foreclose the equity of redemption, the gen- eral rule is, that where the mortgagor has been permitted to retain possession, the mortgage will, after a length of time, be presumed to have been discharged by payment of the money, or a release, unless circumstances can be shown suffi- ciently strong to repel the presumption, as payment of interest, a promise to pay, an acknowledgment by the mortgagor, that the mortgage is still existing, and the like." ^ And, in regard to a j)urchaser from the mortgagor : " A purchaser with notice, can be in no better situation than the person from whom he 1 Borst V. Boyd, 3 Sandf Ch. 507, 2 pgr Washington, J., Hughes v. 608. Edwards, 9 Wheat. 497, 498. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 5 derives his title, and is bound by the same equity which would affect his rights. The mortgagor, after forfeiture, has no title at law, and none in equity, but to redeem upon the terms of paying the debt and interest. His conveyance to a purchaser with notice passes nothing but an C(}uity of redemption, and the latter can, no more than the mortgagor, assert that equity against the mortgagee, without paying the debt, or showing that it has been paid or released, or that there are circum- stances in the case sufficient to warrant the presumption of those facts, or one of them." ^ § 4. For these reasons, before considering the express statu- tory provisions of the several States, in relation to foreclosure and redemption, which are very numerous and varied, we may most conveniently state together the general rules of law and equity upon these subjects, independent of any positive regula- tion. It will be seen, that, although statutes have been passed in England, which to a certain extent limit the claims of mort- gagor or mortgagee, as well as other titles to real property, within a specified period of time ; yet the prevailing doctrine upon the subject has for the most part grown up, independently of any statutory provision. Thus in the early case of White V. Ewer,2 " at a rehearing before my Lord Keeper, assisted with Justices Vaughan and Turner, concerning redemption of a mortgage made more than forty years since ; the Lord Keeper declared that lie would not relieve mortgages after twenty years ; for that the Statute of 21 Jac. ch. IG, did adjudge it reasonable to limit the time of one's entry to that number of years ; unless there arc such particular circumstances as may vary the ordinary case, as infants, feme coverts, &c., are provided for in the very statute ; the matters in equity are to be gov- erned by the course of the Court, and that 'tis best to square the rules of equity, as near the rules of law and reason as may be." (a) Accordingly it is held, that the same period, which bars an action at law, also bars a bill in equity, for foreclosure or redemption. Thus, in Vermont and Connecticut, fifteen 1 Per Washington, J., Hughes v. ^2 Vent. 340 ; Robinson v. Fife, 3 Edwards, 9 Wheat. 499. Ohio (N. S.), 551. , (a) Crittendon v. Brainard, 2 Root, 485. 6 THE LAW OF MORTGAGES. [CH. XXV. years, unless equitable circumstances take the case out of the rule.^ So minor heirs will be barred of their equity of re- demption by fifteen years' adverse possession, unless they peti- tion within five years after they come of age.^ So, in Ohio, twenty-one years' adverse possession of the mortgagee bars the right of redemption.'^ And, in Illinois, in case of a loan with a deed of land for security, the title is in trust for the grantor in the nature of a mortgage, and no lapse of time short of that fixed by the Statute of Limitations can forfeit the right of redemption.^ So the time fixed in a statute as a bar to redemption of an express mortgage, which specifies a day of forfeiture, must also be applied to a right of redemption arising by construction of equity ; and the time must be reck- oned from the accruing of the right to sue.^ § 5. With reference to the rights of the mortgagor, as affected by lapse of time, it is said, mere delay of a mortgagee to en- force his claim is not fraudulent on his part, nor does it • afifect his title.*^ Thus a mortgage was made in 1809 and re- corded. The mortgagor having transferred his estate, the mortgagee never gave notice to the purchaser of his mortgage, but in 1821 brought a suit for the land. Held, he was entitled to recover.'^ (a) 1 Crittendon v. Brainard, 2 Root, '^ Sheldon v. Bird, 2 Root, 509. 485; Martin v. Bowker, 19 Verm. ^ Robinson v. Fife, 3 Ohio (N. S.), 526. Ace. M'Donald v. Simes, 3 Kel- 551. ly, 383; Field v. Wilson, 6 B. Mon. * Coates v. Woodworth, 13 111. 479 ; Gunn v. Brantley, 21 Ala. 633 ; 654. Richmond v. Aiken, 25 Verm. 324; •'' Bailey v. Carter, 7 Ired. Eq. Merriam v. Barton, 14 Verm. 501 ; 282. Skinner v. Smith, 1 Day, 124 ; Has- ^ Davis v. Evans, 5 Ired. 525. kell V. Bailey, 22 Conn. 569. ^ Dick v. Balcli, 8 Pet. 30. («) In Ashton v. Milne, 6 Sim. 378, rule ; for, by the decree on the hearing, 379, Shadwell, V. C, gives tlie follow- it was referre'd to the Master to inquire ing view of the course of decisions whether the defendants, or those under upon this subject : " This rule is in a whom they claimed, had in any way great degree established by Cholmon- treated their title as a mortgage title at deley v. Clinton, and the cases which any time within twenty years before are reported to have been cited on the the filing of the bill. It is clear that appeal to the House of Lords. The the reference could only have been case of Price v. Copner, 1 Sim. & St. made in order to asoertain whetlier the 347, has been cited as infringing the defendants had placed themselves with- rule. But that case seems to me to out the benefits of the rule. That afford the strongest evidence of the case, therefore, is confirmatioii^of the CH. XXV.] FORECLOSURE. — LAPSE OF TIME. § G. But it seems to be the established rule, both in law and equity, as laid down by Chancellor Kent,i tiiat a mortgage is not evidence of a subsisting title or interest in the mortgagee, if he has never entered under tlie mortgage, and there has been no interest paid, or demand thereof made for twenty years, (a) 1 Giles t'. Barcmore, 5 John. Ch. 552; Boyd v. Harris, 2 Mil. Cli. 210; Morcau v. Detcliemendy, 18 Mis. 522. rule. The same volume which con- chiinied to be a niortj^ufic, showed the tains tlie report of Price v. Copner, grantee and his assigns to have claimed contains also a report of Harrison v. and exercised the rights of absolute Hollins. It appears, by my note of owners, and to have had possession for that case, that Sir William Grant in twenty years, but averred tliat this his judgment cited a case of Dallas v. possession was not continuous and ad- Floyd, which was heard in 1739. There, a tenant for life of an equity of redemption permitted the mort- gagee to enter into possession. The tenant for life died in 1721, and in 1737, whicli was more than twenty years after the mortgagee's entry into posses- sion, the remainder-man filed his bill to redeem ; and it was dismissed with costs. Therefore this rule has pre- vailed, uniformly, except in the case of Corbett i'. Barker. In that case, there was a decision by Eyre, Chief Baron, and a renewal of that decision by Macdonald, Chief Baron. There is great force in the argument of Sir Sam- uel Romilly, and I cannot but think that the better decision was reversed. I am not, however, left to choose be- tween the conflicting decisions of those learned judges, because I take the rule to be established." verse for that period ; but not that it was taken within that period. No excuse for a delay of thirty-four years after maturity of the mortgage was made. Held, the averments were too uncertain to found a right to redeem upon. After thirty-four years from ma- turity of the mortgage, and twenty- four years from sale by the grantee; the complainant must prove affirmatively such facts as would show the instru- ment to be still in force, and the land subject to redemption. Re^'nolds v. Green, 10 Mich. 355. In North Carolina, where the mort^ gagor is permitted to remain in posses- sion for more than ten . years, during whicli no part of the debt or interest has been demanded or paid, and noth- ' ing said or done concerning the matter ; a presumption arises, that it has been arranged, and the right to enforce the (a) In New Jersey, a mortgagee's mortgage abandoned. And this not- entry when the mortgage-money is all withstanding loose declarations, made due, and his continued holding there- after tlie presumption of abandonment after for more than twenty years, bar from lapse of time has arisen. Brown the equity of redemption. Bates i;. v. Becknall, 5 Jones, Eq. 423. Conrow, 3 Stockt. 137. Although under the statutes of In Michigan, after twenty years, Arkansas there is no limitation of pro- new rights having been acquired in the ceedings to foreclose, a mortgagor in property by third parties, the Court possession may defend against forcclo- refused to allow a- second mortgagee to sure, after more than ten years from the redeem. Cook v. Finkler, '.) Mich, date of the mortgage. Guthrie v. 131. Field, 21 Ark. 37'J. ■ A .bill to redeem a conveyance. In Missouri, an undisputed posses- 8 THE LAW OF MORTGAGES. [CH. XXV. And ill Dunham v. Minard,^ where the land had been held for twenty-five years without claim by the mortgagee, the Chan- cellor remarked : " The only reasonable conclusion which can be drawn from the facts in this case is, that these mortgages, if they were ever justly due, must have been paid and satisfied by the mortgagor." So Sir Thomas Plumer, M. R., says:^ " I cannot accede to the doctrine, that no length of time will operate against a mortgagee who has been out of possession without claim or acknowledgment. The argument from there being a tenancy at will arises from a mere fiction. The rela- tion of mortgagor and mortgagee is peculiar ; the tacit agree- ment is, that he is to be the owner if he pays. Then what is to be the effect of one person's continuing for twenty years in possession of the estate of another, who does nothing to make good his title, and to keep alive the relation of mortgagor and mortgagee ? If twenty years' possession, without claim on the part of the mortgagee, will not operate as a defence against ■ him, I do not see how any period of time, however long, can bar him. With respect to the mortgagor, it is clear that his equity is shut out by the mortgagee being in possession for twenty years without acknowledgment ; then why should not this be reciprocal ? " The same judge remarks : " There are two ways in which length of time may operate in cases like this, when it is not a positive bar by virtue of the statute ; namely, by raising a presumption, either that the debt demanded never was due, or that it has been paid." ^ Accordingly, a bill by a mortgagee, for a sale under a trust for that purpose in the mortgage, was dismissed, upon doubtful evidence of title, and possession of the mortgagor for twenty years, without payment of interest, demand, or acknowledgment.^ And Professor Greenleaf remarks, that the supposed relation of the mortga- gor to the mortgagee, as his tenant, is not allowed to operate 1 4 Paige, 443. Ace. 1 B. Mon. 309. '^ Christophers v. Sparke, 2 Jac. & 2 Christophers v. Sparke, 2 Jac. & W. 233. W. 235. See Evans v. Huffman, 1 * Ibid. 223. Halst. Ch. 354. sion by the mortgagee for twenty tion. A fortiori, where a stranger to years, without any recognition of the the mortgage is in possession. McNair mortgage, bars the equity of redemp- v. Lot, 34 Mis. 285. CH. XXV.] FORECLOSURE. — LAPSE OP TIME. 9 against the presumption of payment arising from the mortga- gor's continued possession. After twenty years, this presump- tion may be made, even in chancery.^ So it is remarked by the Court in Massachusetts : " A question has been sometimes raised, whether the doctrine of presumption, arising from tlie lapse of time and total neglect to take any measure to enforce a claim, could properly be applied to the case of a mortgage of real estate ; and in some of the earlier English cases, the doctrine was advanced, that the common-law presumption applicable to bonds, judgments, &c., arising from a delay of twenty years to enforce the same, did not apply in the case of a mortgage, as in such cases the legal estate was in the mort- gagee, and the mortgagor was a mere tenant at will, and his possession was therefore the possession of the mortgagee, (a) But this doctrine was repudiated by Lord Thurlow in the case of Trash v. White,^ and by the Master of the Rolls in Chris- tophers ?'. Sparke,3 in very strong language and the cases of debts secured by mortgages are placed on the same footing with other demands, and held liable to be defeated by the same presumption, arising from lapse of time and laches of the mortgagee." * § 7. Upon these grounds, the mortgagor and his heir having successively occupied the premises, and neither the mortgagees nor any persons under them entered for condition broken or otherwise, for more than twenty years from the time the mort- gage debt became due ; these circumstances were held to raise a presumption in fact, liable to be controlled by other evidence, that the debt had been paid, and to constitute a good defence 1 2 Greenl. Cruise, 149, n. See 2 3 Bro. C C. 289. Borst V. Boyd, 3 Sandf. Ch. 501 ; Mor- » 2 Jac. & Walk. 223. gan V. Davis, 2 Har. & McII. 18; 4 pgr Dewey, J., Howland r. Shurt- Cooke V. Soltan, 2 Sim. & St. 154 ; leff, 2 Met. 27. Dowling V. Ford, 11 Mees. & W. 829; Bennett v. Cooper, 9 Beav. 252. (a) In the case of Noyes v. Sturdi- suit. But tlie Court say (Ibid. 105) : vant, 6 Shcpl. 104, whicii was eject- "Tlie second objection is, that the ment against an execution purchaser plaintiff did not prove a seisin within of the equity, it seems to have been twenty years. The possession of the admitted that more than twenty years mortgagor and of his tenant, is the had elapsed between the giving of the possession of the mortgagee." mortgage and the commencement of 10 THE LAW OP MORTGAGES. [CH. XXV. to an action upon the mortgage.^ So it lias been held, that a mortgage, made to secure a title to land sold and conveyed, will be presumed to be extinguished after a lapse of from thirty to fifty-six years, and the enjoyment of the land under the title conveyed.'^ And it was held, that, although payment of the mortgage debt was not proved, yet, no possession being shown in the mortgagee or those claiming under him from the time of making the mortgage to the commencement of suit, nor any payment made on the mortgage for more than twenty years prior to the same period, there was no such title in the mort- gagee as would bar an ejectment for the land. And it was fur- ther held, that these facts constituted evidence, from which a jury might infer a release of the mortgage, if necessary.^ So the defendant had agreed to purchase of the plaintiff some houses in London, but refused to complete his purchase, be- cause it did not appear by the abstract that an old mortgage had been paid off, or the legal estate reconveyed. This suit was accordingly instituted about eighty years after the date of the mortgage, to compel a specific performance of the agree- ment ; and the question was, whether, under the circumstances of the case, payment and reconveyance ought to be presumed. No mention of the mortgage was made in subsequent title- deeds ; for several years neither principal nor interest had been demanded ; the mortgage deeds had been long in the pos- session of the owner and his ancestors ; and it did not appear that any administration had been taken upon the mortgagee's estate. Held, under these circumstances, a reconveyance of the estate should be presumed.* So a mortgage sixty years old, though unsatisfied of record, may be presumed paid, and it is no incumbrance to the title, the mortgagor being in pos- session of the estate, and there being no evidence of its non- payment.^ § 8. On the other hand, corresponding rules have been adopted, as to the effect of lapse of time upon the rights of the mortgagor. It is said by an English judge in a late case, » Howland v. Shurtleff, 2 Met. 3 Morgan v. Davis, 2 H. & McH, 26. 18. 2 Murray v. Fishback, 5 B. Mon. * Cooke v. Soltan, 2 Sim. & St. 154. 403. 5 Belmont v. O'Brien, 2 Kern. 394. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 11 " It is a settled rule, that a court of equity regards more the antiquity of possession by the defendant, tlian the novel accruer of title to the plaintiff; and that it will not interfere against a person who, claiming by a mortgage title, has been in posses- sion more than twenty years without having recognized the right to redeem." ^(a) So Judge Story says r^ " The ordinary limitation of the right of redemption is twenty years from the time of taking possession after condition broken. During this period, the mortgagee is liable to account, and, if payment be tendered to him, to become a trustee of the mortgagor. If the mortgagee holds twenty years, without accounting or admitting that he is merely a mortgagee, his title becomes abso- lute in equity, as it was before at law. If the time of limita- tion once begins to run, and no subsequent admission is made by the mortgagee ; it continues to run against all claiming • under the mortgagor, whatever their disabilities may be. The bar arising from twenty years' possession is not positive, but, being founded upon a presumption of payment, is open to be rebutted by circumstances." So it is said in Kentucky : ^ " A possession for twenty years by a mortgagee will ^jr?- se create a legal presumption that the equity of redemption has been re- leased, and that the possession, which in its origin was amicable, had been adverse during the entire duration of it, or for twenty years. So a mortgage was made in 1689. In 1640, the mort- gagee entered for breach of condition. In 1663, an heir of the mortgagor brings a bill to redeem. After his death, the suit was revived by his co-heirs, wlio obtained a decree in 1672, but did not prosecute it. The plaintiff, having purchased the equity 1 Per V. C. Shadwcll, Ashton v. 5G ; "Wood v. Jones, Meigs, 518 ; Bond Milne, 6 Sim. 378. See Pickens v. v. Hopkins, 1 Sch. & Let'. 429 ; Hughes Walker, 3 Dana, 167. v. Edwards, 9 Wheat. 489 ; Blethcn v. 2 2 Story's Eq. 1028, a, 6 ; Ayres y. Dewnal, 35 Maine, 556; Haskell v. Waite, 10 Cush. 72. See Cln-istophers Bailey, 22 Conn. 569 ; Ilurd v. Cole- V. Sparke,' 2- Jac. & W. 235; Mor- man, 42 Maine, 182. gan V. Morgan, 10 Geo. 297; 2 Meri. 3 Per Pobertson, C. J., Gates v. Ja- 171 ; Slee v. Manhattan, &c., 1 Paige, col), 1 B. Mon. 309. (a) Great increase of value will not from twenty years' possession. Crom- affect the title of a mortgagee, arising well v. Bank, &c., 2 Wallace, Jr. 569. 1 A very leading case upon this subject. 12 THE LAW OP MORTGAGES. [CH. XXV. of redemption from the heirs, brings this bill to obtain the benefit of the former decree. Held, the bill should be dis- missed, by reason of the difficulty of the account after such great length of time ; and although there were infants, yet the time having begun upon the ancestor, it should run against them, as in the case of a fine. The Lord Keeper adds : " Al- though they afterwards obtained a decree, yet not having prosecuted it, and the cause being now within one year of the Grrand Climacterick, it is fit it should rest in peace." ^ So, on demurrer to a bill to redeem a stale mortgage, where the mort- gagee appeared by the bill to have been in possession above twenty years ; the Court held the defendant need not plead the length of time, but might demur ; and that no redemption should be allowed in such case, unless there was an excuse by reason of imprisonment, infancy, or coverture, or by having been beyond the sea, and not by having absconded, which is an avoiding or retarding of justice.2(a) So, where the plaintiff claimed redemption of certain lands, and the defendant insisted on the antiquity of the mortgage, and that, by reason of long leases existing at the time of the mortgage, he could derive no benefit from the mortgage till they expired ; the Lord Chancel- lor dismissed the bill. Upon a rehearing, it appeared that the plaintiff mortgaged the premises, worth X200 per annum, to the defendant's father, for X250, and the plaintiff agreed and accordingly sealed a deed for the absolute purchase of the premises to the defendant's father, if the £250 were not paid at the end of seven years.^ So, in a recent case, bond fide purchasers from a mortgagee had been in uninterrupted pos- session for eighteen years, and made valuable improvements ; the mortgagee, when he sold, had been in visible possession ten years ; the mortgage had been forfeited by breach of condition nine years ; the mortgagor had been dead four years, and his estate was at the time hopelessly insolvent, thouoh it after- wards became solvent. The mortgagee was administrator of 1 St. John V. Turner, 2 Vern. 418, ^ Bowen v. Edwards, 2 Rep. in Ch. 419. 221. 2 Jenner v. Tracy, 3 P. Wms. 287, n. (a) In Edsell v. Buchanan (in Ch. pressed a doubt whether such defence 11 Mar. 1793), the Lord Chancellor ex- was a proper ground of demurrer. CH. XXV.] FORECLOSURE. — LAPSE OP TIME. 13 his estate, and subsequently himself died. It was lield, under these circumstances, that the right of redemption was gone.^ So in case of a conveyance, with a bond to rcconvey, on pay- ment of a certain sum, in one year ; on a bill filed by the grantor thirty-eight years afterwards, for a reconveyance, held, the bill could not be maintained.- And this although the com- plainant, nineteen years before, had presented the claim in a cross-bill, in another suit between the parties, which was never prosecuted by the complainant, and suffered to be dismissed ; and especially as it varied entirely from the facts admitted in the answer to the cross-bill.'^ (a) 1 Dexter v. Arnold, 1 Sumn. 109. " Farrow v. Farrow, G B. Mon. 482. a Ibid. (a) James Ash ton and wife were seised in fee, in her right, of an undi- vided moiety of certain land, and Samuel Ashton and wife, in her right, of anotlier undivided fourtli. James Eyre owned tlie other moiety, ^ and the wliole was subject to a mortgage term of one tliousand years. In 1784, all these parties professed to con- vey to Milne, under whom the defend- ants claimed. In 1793, James died. His wife survived and married again. She survived her second husband, and died in 1825, and James Ashton, one of the plaintiffs, was her son. Frances, wife of Samuel, died in 1818, and her husband in 1826. Samuel, the other plaintiff, was her son. In 1831, the plaintiffs filed a bill to redeem. Held, it could not be maintained. Ashton v. Milne, Sim. 369. In a bill in equity to redeem brought against the heirs of a mortgagee, the plaintiffs claimed, as executors and heirs of the last surviving trustee, un- der a deed of trust from the mortgagor, made more than thirty years before, for the benefit of creditors and the payment of debts. The deed did not mention the mortgaged estate, .ilthough it specified other real property of the 1 This is the language of the Court. grantors; but contained a general grant of all theij" joint and several es- tates. The object of the trust did not extend to the payment of debts secured by mortgage ; and it was expressly pro- vided, that, if the debts could be satis- fied by sale of a part only of the premises thereby granted, the trustees should reconvey the residue. It was held, that the claim of a right to exe- cute the trust, without showing that debts remained unpaid, was against the sjjirit and intention of the provision last stated ; that, if all the debts were paid, the trustees were bound to recon- vey, and equity would presume that done which ought to have been done ; that, if the trust had been executed witliout resorting to the mortgaged lands, they fell under the residuary part, which, the deed itself showed, did not belong to the trustees or their heirs; that the lapse of time was of itself amply sufficient to warrant the presumption of an execution of the trust ; and that the suit could not be maintained. Grant v. Duane, 9 John. 591 (decision of the Court of Errors, unanimously reversing that of the Chancellor). 14 THE LAW OP MORTGAGES. [CH. XXV. § 9. It has been held, that unexplained possession of mort- gaged premises, for less than twenty years, by the mortgagor, may be left to the jury, in connection with partial payments and other evidence, as tending to show that the debt was fully paid.^ But, in Cook v. Arnham,^ the Lord Chancellor said, that a length of time which will not bar an ejectment cannot bar a bill in equity. And in another case,^ Lord Hardwicke held the period of fifteen years no bar to redemption. So, in Moore v. Cable,^ Chancellor Kent remarked, with regard to the effect of mere constructive possession : " Nor will a mere constructive possession for twenty years be sufficient. The courts require an actual possession by the mortgagee dur- ing the period that is to form the equitable bar. Tlie idea, that as the mortgaged premises were probably wild, uncleared lands, possession is to be deemed to have followed the right, and to have been in the mortgagee after default of payment, is not applicable to this case. That fiction was adopted by the courts to preserve the lands of the true owner, while in their uncultivated state, from intrusion and trespass ; and it would be a perversion of the rule to make it operate by way of extin- guislunent of a right. Notliiiig short of actual possession for twenty years, will at law toll the entry of the true owner ; and the equity of redemption ought to be equally protected." § 10. A statute of Rhode Island authorized the ^wpreme Court of the State to allow redemption of any mortgaged estate after twenty years' possession, if peculiar circumstances should render it equitable. In Dexter v. Arnold,^ it was held that the Circuit Court of the United States should be governed by this statute, though specially addressed to the State Court ; first, because it furnished the appropriate analogy upon the known doctrin-e of courts of equity ; and second, because it was but a mere affirmation of the general principles, upon which courts of equity act in allowing or refusing a redemption. § 11. As has been already stated (^supra, § 1), tlie effect of long-continued possession, upon the rights of mortgagee or mortgagor, has been iisually made to depend rather upon gen- 1 Gould v. White, 6 Fost. 178. * 1 John. Ch. 387. '^ 3 P. Wms. 283. 5 3 Sumn. 152. See Michigan v. » 3 Atk. 313. Brown, 11 Mich. 265. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 15 eral principles or analogies, than upon any express statute of limitation. Whether a statute of limitation, as such, can he relied on hy way of formal plea, seems to 1)0 a point involved in some confusion, (a) (a) Stat. 3 & 4 Wm. 4, eh. 2.7, provided, tliat the same hipse of time should bar suits in equity for real prop- erty, as at hiw. Under tills act, it was lield that the ni()rti;:aj,'ce mif^lit plead the Statute of Limitations in bar of the right to redeem, or might demur. If he demurred, the plaintif!" might show special circumstances on the face of the, bill for overruling the demurrer; and, if he pleaded, the plaintiff might reply to the plea, amend, or prove himself within the exceptions. Aggas v. Pick- erell, 3 Atk. 225; Hadle v. Ilealey, 7 Ves. & B. 536 ; Coote, 595. By Slat. 7 Wm. 4, and 1 Vict. ch. 28, a mortgagee may enter on, or bring a suit at law or in equity for the land, at any time within twenty years after the last payment of principal or interest, although more than twenty years may have passed since the right of entry or action accrued. By the same statutes, when the mortgagee has obtained pos- session or receipt of the profits of any land, or the receipt of any rent com- prised in his mortgage, the mortgagor or any one claiming under him shall not bring a suit to redeem, after twenty years from the obtaining of such pos- session or receipt ; unless in the mean time an acknowledgment of the mort- gagor's title or right of redemption have been given to the mortgagor or some one claiming his estate, or the agent of such party, in writing, signed by the mortgagee or the peVson claim- ing through him ; and in such ca.«e no such suit shall be brought, but within twenty years next after the time when such acknowledgment, or the last of such acknowleilgments, if more than one, was given ; and when there shall be more than one mortgagor, or more than one person claiming through the mortgagor or mortgagors, such ac- knowledgment, if given to any of such mortgagors or persons, or his or their agents, shall be as eflectual, as if given to all ; but in case of more than one mortgagee, or more than one person claiming under him, such acknowl- edgment shall bind only the party actually signing it, those claiming under him, or claiming an estate after his interest is terminated ; and where the party giving such acknowledgment is entitled to a divided part of the property, and not to any ascertained part of the mortgage money, the mortgagor may redeem such divided part on payment with interest of that part of the mortgage money, which shall bear the same proportion to the whole, as the value of such divided part of the property bears to the whole. See 1 Steph. 284. To prevent the lapse of time frcAn affecting the validity of a mortgage, its execution within twenty years, if it contain a covenant admitting the mort- gagee's title, is a sufficient acknowledg- ment of the title, under St. 3 & 4 Wm. 4, eh. 27, § 14, although it bear date nearly a year previous to the execu- tion. Jaynes v. Hughes, 28 Eng. Law & Eq. 589. Another section of the statute last named imposes certain limitations upon the rights of mortgagees. Under this section it has been held, that the mort- gagee, in a mortgage containing no covenant to repay the money bor- rowed, may recover the principal within twenty years, but his remedy tor arrears of interest is limited to si.x years. The language of the act is, that no suit shall be brought to recover monev secured 16 THE LAW OF MORTGAGES. [CH. XXV. § 12. The general doctrine is sometimes laid down, applica- ble alike to both the parties to a mortgage, that the relation between mortgagor and mortgagee is so far analogous to that of trustee and cestui, that the possession of either party is as to the other not adverse, but amicable, unless the party in pos- session show an unequivocal intent to the contrary. Hence the Statute of Limitations does not run against the party out of pos- session. A mortgagor cannot disseise the mortgagee. So, even where the mortgagee attempts to convey an absolute title, this is no disseisin of the mortgagor, but passes merely a de- feasible estate.^ (a) § 13. In reference to the rights of the mortgagee, arising from long-continued possession ; in Aggas v. Pickerell,^ the mortgagee and those claiming under him had been in posses- sion at least thirty years. The plaintiff, by way of excuse for delay, alleged that the mortgagor was several years out of the kingdom, and died abroad. The defendant pleads the Statute of Limitations, and by his plea insists upon the length of time of the possession. The Lord Chancellor said: "The excuse the plaintiff makes is not sufficient, for the person who has a right to redeem, should take notice of it at his peril. But I 1 Fenwick v. Macey, 1 Dana, 279 ; v. Ewer, 2 Ventr. 340 ; Morgan v. Mor- Dexter v. Arnold, 2 Sumn. 109 ; Wliite gan, 10 Geo. 297. 2 3 Atk. 225. by mortgage, but witliin twenty years, defendant was not barred by the lapse &c. ; and no arrears of interest in re- of twenty years. Murphy v. Sterne, spect of any money charged upon land 1 Dru. & Walsh, 236. See 2 Smith's shall be recovered but within six years. Lead. Cas. 409, note. Hodges V. Croydon, &c., 3 Beav. 86. (a) It is said, the time fixed in a But where the mortgage debt and statute, as a bar to redemption, in case interest are secured by a bond or cov- of an express mortgage, specifying a enant, the mortgagee may maintain a day of forfeiture, must also be applied foreclosure suit to charge the estate to a right of redemption arising by with the full arrears of interest, accru- construction of a court of equity ; and ing within twenty years. Du Vigier the time must be computed from the V. Lee, 2 Hare, 326. accruing of the right to sue. Bailey It has been held, that, where no v. Carter, 7 Ired. Eq. 282. interest has been paid, the twenty years In Iowa it is held, that, in an action run from the execution of the deed, if to redeem, the Statute of Limitations under it the mortgagee is entitled to im- applies, as in case of an ordinary action mediate possession. Doe v. Lightfoot, for possession. Montgomery v. Chad- 8 Mees. & W. 564. Also, that a mort- wick, 7 Clarke, 114. gagee brought before the Court as a CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 17 have great doubt with me, whether the defendant can in this case plead the Statute of Limitations, for insisting on the length of time against a bill to redeem, is only a kind of equitable bar, and taken by way of analogy to the Statute of Limitations." But, upon further argument and consideration, the plea was allowed. § 14. But in this country it has been held, that the denial by the mortgagee of the right of the mortgagor to redeem is not sufficient to set up an adverse holding to the mortgagor, so as to let in the statute, without showing that the mortgagor had actual notice of such adverse holding. As where the redemption money was tendered by an agent of the mortgagor to the mortgagee, who denied the right of the mortgagor to redeem. 1 So, in another case,^ it was remarked: "Whatever dicta gentlemen may find in some of the more modern English cases, which some have construed into a supposed authority in favor of the operation of the statute, and that the mortgagee in possession is in adversely to the mortgagor, we venture to assert that no such case has been so decided where the point was directly made. That time in the court of equity has been taken in analogy to the Statute of Limitations is admitted. But what is meant by this expression, in analogy to the stat- ute ? We do not understand by the terms used, that we are to take the same period which the statute has forged for the courts of law. All that is intended to be expressed is, that equity will interpose her rules as to periods within which she will act upon rights purely equitable. Slie will not enforce stale equities, but will rather, when great length of time has intervened, decline her interference, upon a presumption that if the claim had been well founded and had not been satisfied, it would have been presented earlier." The Court proceed to remark : ^ " Before we go into the act, it is proper to look to the relation of mortgagor and mortgagee. In feudal times, unlettered men used signs by which the relation of the tenant to his lord was manifested ; he was found on the land with his badge or mark of fealty. If he cast off this and ^ Yarborough v. Newell, 10 Yerg. 376. ^ Hammonds v. Hopkins, 3 Yerg. 628. ' 3 Yerg. 629. VOL. 11. 2 18 THE LAW OP MORTGAGES. [CH. XXV. assumed another, it was a disseisin, and the landlord instantly had his remedy ; and to this day a tenant, before the law will allow him to assume the character of a disseisor, must surren- der and put an end to his relation to his landlord. The rela- tion of mortgagor and mortgagee is just as strong. Nay, the law will not let the mortgagee, at his will, put an end to the trust relation in which he stands to the mortgagor." (a) § 15. In reference to the rights of the mortgagor, arising from possession, it has been held in Massachusetts, that an action for the foreclosure of a mortgage, under the Revised Statutes, ch. 107, is not barred by the Statute of Limitations (Rev. Sts. ch. 119), unless the mortgagee has been disseised for twenty years by the mortgagor or one claiming under him. Thus a mortgage was made in 1805, and the mortgage de- livered and the note transferred in 1806, and remained in the assignee's hands till 1838. The mortgagor paid the interest till 1827, and ten dollars on the mortgage in 1838. In 1841, the mortgagor, who had previously continued seised and pos- sessed, conveyed to the tenant, having notice of the above facts, but denying the validity of the mortgage. The mortgagor knew that the assignee of the note had the note and mortgage in his hands, and claimed to own them. The mortgage debt remained unpaid, with the exceptions above stated. Nearly forty years after execution of the mortgage, the administrator sues to foreclose. Held, the mortgagor was a mere tenant at will or sufferance, the mortgagee being seised and possessed of the premises, and the title of the former not adverse to that of the latter ; and that the action should be maintained. The Court say : " The statute can never bar an action for the (o) So in another case in the same Nor would the mortgagor have any State it is said : " If the mortgagee's better ground to enjoin a recovery of possession of tlie mortgaged slave for the money, by alleging that his negro three years would bar the equity of had become the property of the mort- redemption, he might sue the mort- gagee by the Statute of Limitations, gagor at law and recover the money he than a party who may be sued upon a had advanced upon the mortgage, and bond would have to enjoin it, by alleging thus by virtue of the contract, he that he had an account against the would undoubtedly have a right to the plaintiff, which, though just, had been money, and by virtue of the Statute barred by the statute." Per Green, of Limitations, a right to the negro. J., Wood v. Jones, Meigs, 517, 518. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 19 foreclosure of a mortf:^age, unless the mortgagee had been dis- seised l>y the mortgagor or by some person claiming under him. It is true that if the mortgagor should remain in pos- session for twenty years without paying interest or rent, or otherwise admitting that the mortgage debt was unpaid, this would be good presumptive proof of payment, and would be a good defence to an action for foreclosure. But it would not be a statute bar. In the present case there was no disseisin by the mortgagor or by the tenant until 1841, when the latter purchased the premises of the former, denying the validity of the mortgage. It is clear, therefore, that the action is not barred by the Statute of Limitations ; and it being admitted that the mortgage debt has not been paid, the demandant is entitled to judgment." ^ § 16. But it is held in Connecticut, that a mortgagor need not plead the Statute of Limitations to a suit for foreclosure, after remaining in undisturbed possession fifteen years.^ (a) § 17. The same disabilities, whicii prevent the operation of the Statute of Limitations in other cases, will also obviate the effect of a lapse of time upon the rights of mortgagor and mortgagee. It is held, that the right to redeem accrues when the debt is payable, unless the mortgagor is then out of the United States.^ And, on the other hand, if a party be not " without the limits of the United States at the time when the right of redemption first accrued," no subsequent absence will prevent the operation of the Statute of Limitations, or give him ten more years in which to make his entry ; and the rule of equity is applied on the same principles as the statute.* So, in 1 Bacon v. McTntiro, 8 Met. 87. 3 Pliillips v. Sinclair, 20 Maine, 269. 2 Haskell v. Bailey, 22 Conn. 569. * Ibid. (a) In Massacluisetts, the same de- In California, the statute operates fences may be made in an action on against a mortgage, as well as the note, a mortgage, the Statute of Limitations Heinlin v. Castro, 22 Cal. 100 ; 23 ib. excepted, which might be made in an 142; Lord v. Morris, 18 Cal. 482; Mc- action on the debt. Vinton v. King, Carthy v. White, 21 Cal. 495. And a 4 Allen, 562. purchaser of the estate, subsequently In Wisconsin, a mortgage may be to the mortgage, may intervene in a foreclosed, and the premises sold, al- suit for foreclosure, and plead the though the note is barred by the statute. Coster v. Brown, 23 Cal. 142. statute. Wiswell v. Baxter, 20 Wis. 080. 20 THE LAW OF MORTGAGES. [CH. XXV. case of a bill to redeem a mortgage made in 1G42, it appeared that the mortgagee entered in 1650 ; and there were three descents on the defendant's part, and four on the part of the plaintiff. Yet the length of time being answered for the greatest part by infancy or coverture, and forasmuch as in 1686 a bill was brought by the mortgagee to foreclose, and an account then made up by the mortgagee, the Court decreed a redemption, and an account from the foot of the account in 1686.1 § 18. But where there was a conveyance by husband and wife, on condition, that, if in three years they repaid a certain sum recited to be loaned by the grantee, the deed should be void ; and that he should enter and take the profits in lieu of interest ; and he entered accordingly, and remained in possession eighteen years : the right of redemption was held to be barred.^ § 19. A further qualification of the general rule upon this subject is thus stated by Judge Story : " If the mortgagee enters, not in his character of mortgagee only, but as pur- chaser of the equity of redemption, he must look to the title of his vendor, and the validity of the conveyance which he takes. So that, if the conveyance be such as gives him the estate of a tenant for life only in the equity of redemption, there, as he unites in himself the characters of mortgagor and mortgagee, he is bound to keep down the interest of the mortgage, like any other tenant for life, for the benefit of the persons entitled to the remainder ; and time will not run against the remainder- man, during the continuance of the life-estate." ^ Thus, where a mortgagee remained in possession six years, without acknowl- edgment of the title of the mortgagor, bought out a tenant for life of the equity, and occupied twenty years more ; held, during the tenancy for life his occupation was not adverse, and the reversioner might redeem.* (a) 1 Procter v. Cowper, 2 Vern. 377. » 2 Story's Eq. § 1028 a. See Palm- See 2 Vent. 340. er v. Eyre, 6 Eng. Law & Eq. 355. 2 Jarvis v. Woodruff, 22 Conn. 548. * Hyde v. Dallaway, 2 Hare, 528. (a) But in Dallas v. Floyd (cited in tenant for life died in 1721, and in 6 Sim. 379), a tenant for life of an 1737, which was more than twenty equity of redemption permitted the years after the mortgagee's entry into mortgagee to enter into possession. The possession, the remainder-man filed his CH. XXV.] FORECLOSURE. LAPSE OP TIME. 21 § 20. Lapse of time does not bar the redemption of a Welsh mortgage.^ Nor of a mortgage "which provides that the mort- gagee shall hold the estate till the debt is paid ; unless, upon an account of the rents and profits, it appears that the mort- gagee has had possession more than twenty years since such payment.^ Nor where the mortgagee has had constant pos- session.^ Nor where the mortgagee by any act, more espe- cially if deliberate, and whether immediately connected with the owner of the equity of redemption or not, recognizes the continued existence of the mortgage.* Nor, it is said, where the mortgagor has had possession of any part of the land.^ Nor is it a bar to redemption, unless there be actual posses- sion. Paying taxes on wild land is not sufficient.^ So a mortgagor is not barred by twenty years' possession, if the possession of the mortgagee was under an absolute deed, with an agreement that the mortgagor might redeem when he found it convenient ; no notice or request as to redemption being shown. In such case, a sale by the mortgagee, barring the equity of redemption, creates a constructive trust in favor of the mortgagor." So where a statute was passed, repealing a former act, which limited the redemption of mortgages to twenty-one years, and providing that after that period the mortgagee might have a sale on execution for satisfaction of the debt, &c. ; held, mere possession of the mortgagee for twenty-one years did not affect the right of redemption.^ So an account rendered by the mortgagee, or an acknowledgment made in his answer to a bill in equity, that the mortgage still 1 Ilowel V. Price, Gilb. 106. See * Coote, 5%. Chap. 1, § 2 n. o Bollinger v. Chouteau, 20 Mis. 89. 2 Yates V. Hambly, 2 Atk. 359. ^ Wymaii v. Babcoek, 2 Curt. 386. 8 Crooker v. Jewell, 31 Maine, 30G. » Birnie v. Caystile, 40 Eng. Law & « Hansard v. Hardy, 18 Ves. 456. Eq. 28. bill to redeem ; and it was dismissed the life of the widow, was a bar to the with costs. right of redemption of the children. So, where A. devised a mortgaged Lockwood v. Lockwood, 1 Day, 295. estate to his widow for life, with power So a succession of riffhts does not pro- to sell, and remainder to his children ; vent the presumption of payment .held, that fifteen years' undisturbed arising from lapse of time. Whitney possession by the mortgagee, during v. French, 25 Verm. 663. 22 THE LAW OP MORTGAGES. [CH. XXV. subsists as such ; will save the right of redemption. ^ Or a private account of the profits, treating the estate as subject to redemption.^ Or a submission to redemption.^ Or a contract by the heir of the mortgagee to purchase the equity of redemi>- tion ; even after a possession of the mortgagee for forty years, and seven years before suit brought.* So, where the mortgagee had promised that the mortgagor should be at liberty to redeem after twenty-seven years ; a redemption was allowed after forty- one years.^ So redemption was allowed fifty years after the making of the mortgage, and after forty-seven years' possession of the mortgagee ; there having been five ejectments to try the title and refusal by four several answers to account.^ So it has been held, that a conveyance of the estate by the mortgagee, subject to redemption^ is sufficient ; though it is otherwise, it seems, where the words, " if any," are added.'^ So an acknowl- edgment made to a grandfather, tenant by the curtesy, of the right of his infant granddaughter, entitled as heir to the in- heritance, was held sufficient as being made to her agent? So where a mortgagee, having been in possession about twenty years, commenced proceedings to foreclose by advertisement under the statute ; this was held a recognition of the mortgage, and the mortgagor allowed to maintain a bill for redemption.^ So the Statute of Limitations does not apply, where there has been any fraud or oppression, or any unfair means used to clog the redemption.^*^ Or if a suit bas been commenced upon the mortgage debt.^^ So where, twenty-three years after the date of the mortgage, the mortgagee made a will, devising that in case of redemption the mortgage money should go in a cer- tain way ; it was held that the heir of the mortgagor, bringing a bill to redeem sixteen years after the date of the will, should be allowed to redeem.^^ 1 Dexter v. Arnold, 1 Sumn. 109. ' Smart v. Hunt, 4 Ves. 478, n. ; 2 Fairfax v. Montague, 2 Ves. 84. Hardy v. Eeeves, ib. 480. 3 Proctor V. Gates, 2 Atk. 140. « Trulock v. Robey, 12 Sim. 402. * Conway v. Shrimpton, 5 B. Par. ^ Calkins v. Calkins, 3 Barb. 305. Cas. 187. ^'^ Spurgeon v. Collier, 1 Ed. 55 ; 5 White V. Pigeon, Toth. tit. 102, Ord v. Smith, Sel. Cas. in Ch. 9. p. 100. " Cutts V. York, &c., 6 Shepl. 191. 6 Palmer v. Jackson, 5 B. P. C. 281. ^^ Qrd v. Smith, Sel. Cas. in Ch. 9. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 23 § 21. But it is held that the acknowledgments of a mort- gagee, made after he has assigned his interest, will not bind a purchaser without notice.^ So, under the Act of Wm. III., it is held that an acknowledgment of the mortgagor's title by a recital in an assignment of the mortgage, but to which the mortgagor is not party, will not stop the statute from running.^ Though it is otherwise, it seems, where the mortgagor is party to the assignment.^ Nor will the mortgage be affected by the account of a receiver.* Nor by a mere demand of the mortgagor.^ So if a mortgagor file his bill to redeem and ob- tain a decree to account, he will be barred unless he prosecute his suit in twenty years.*' § 22. It has been doubted, whether parol evidence was suffi- cient to show an acknowledgment which would affect the rights of the mortgagee.'' But, if clear and unimpeachable, it has been held competent for this purpose.^ § 23. As the acts or declarations of the mortgagee, involving a recognition of the mortgage, preserve the rights of the mort- gagor from the effect of lapse of time ; so the rights of a mortgagee may be saved from the effect of long-continued possession, by similar acts or declarations of the mortgagor, showing a subsisting title in the mortgagee. Thus, where a mortgage was given on wild and unimproved land, of which neither party was in possession, there being evidence that the debts were unpaid, the lapse of thirty years is no bar to a foreclosure.^ And, in general, the mortgagee will not lose his right by lapse of time, though accompanied by possession of the mortgagor, where payment is negatived by evidence ; as where there has been a promise to pay the debt within twenty years, a payment of interest, or an acknowledgment of the mortgage.^^ (a) Thus, where the purchaser of land, subject to a 1 Chouteau v. Burlando, 20 Mis. 482. ^ st. John v. Turner, 2 Vcrn. 418. 2 Dexter v. Arnold, 1 Sumn. 109; 2 « Sel. Cas. in Ch. 'J; 7 Paige, 4G5 ; ib. 109; 3 Mur. 218. 3 Sumn. 152; 10 Goo. 297. 3 Lucas V. Dennison, 13 Sim. 684. 9 Wiiiting i-. Wiiite, 2 Cox, 295. ButseeBorstr. Boyd, SSandf. Ch.501. lo Hughes v. Edwards, 9 Wheat. < Batehelor v. Middleton, 6 Hare, 75. 489 ; Martin v. Bowker, 19 Verm. 626 ■ 5 Barron v. Martin, Coop. 189. Howard v. Hildreth, 18 N. H. 105 ; 6 1 Ves. & B. 640. Wright v. Eaves, 11 Kieh. Eq. 582. (a) The presumption of payment for twenty years must be overcome, arising from uninterrupted possession if at all, by some positive act of une- 24 THE LAW OP MORTGAGES. [CH. XXV. mortgage which was duly recorded, within twenty years prior to the filing of a bill for foreclosure recognized the existence of the mortgage as a good, subsisting incumbrance ; held, al- though the mortgage had been due over twenty years, neither he, nor those claiming under him by a title acquired subse- quent to the acknowledgment, could set up the Statute of Limitations as a bar to the suit.^ So the acknowledgment of one who does not own the whole equity at the time, but after- wards acquires it, is held to bind him and the estate.^ And although the lapse of twenty years, without payment of interest, or demand made, the mortgagor being in possession, will raise the presumption that the debt has been paid ; yet that presump- tion may be repelled by evidence that the mortgagor was a near relative of the mortgagee, or in embarrassed circum- stances.^ So a statute foreclosure, though after twenty yea/rs, rebuts the presumption of payment arising from lapse of time.* But, by the lapse of twenty-six years, parties bene- ficially interested in a mortgage were held to lose the right to enforce it, though its existence was unknown to them during the whole period ; there being no intentional concealment.^ § 24. With regard to the party against whom the statute may operate ; it is held that a judgment creditor cannot redeem, after a suit for that purpose by the mortgagor would be barred by the statute, unless, perhaps, under very peculiar circum- stances.^ § 25. The question has been raised, whether even the debt itself, which is secured by a mortgage, might not be thereby 1 Heyer v. Pruyn, 7 Paige, 465. * Jackson v. Slater, 5 "Wend. 295. 2 Richmond v. Aiken, 25 Verm. ^ Newcomb v. St. Peter's, &c., 2 324. Sandf. Cli. 636. 3 Vanmaker v. Van Buskirk, Saxt. 6 Tucker v. Wliite, 2 Der. & Bat. 685. Ch. 289. quivocal recognition, like a part-pay- Hughes v. Blackwell, 6 Jones, Eq. ment or a written admission, or at 73. least a clear and well identified verbal Where A. mortgaged to B., and, promise or admission intelligently made after B.'s mortgage was barred by the within twenty years. Cheever v. Per- Statute of Limitations, to C, and subse- ley, 11 Allen, 584. quently indorsed a revival upon B.'s In North Carolina, the payment of note ; held, the revival could not affect interest within ten years before the the lien of C. Lord v. Morris, 18 Cal. filing of a bill to foreclose, is sufficient. 482. CH. XXV.] FORECLOSURE. — LAPSE OP TIME. 25 saved from the operation of tlic Statute of Limitations, by which it would otherwise be barred.^ It has been held in the Circuit Court of the United States, that, if the Statute of Limitations runs long enough to bar a debt secured by mort- gage, and has not barred a bill or suit as to the property, the debt is protected by the mortgaged property, and will not be barred till a suit for the property is barred.^ So it is held, that the receipt of the profits by a mortgagee keeps the debt alive against the Statute of Limitations.'^ So, under the pe- culiar circumstances of the following case, the mortgage and the claim secured by it were held to be so connected together, that the latter was saved from the effect of lapse of time by means of the former. One Nodin applied to the plaintiff for a loan of .£300 on mortgage, but the plaintiff refused to advance the money without having in addition a joint and several note from Nodin and the defendant for £50, payable on demand. There- upon a note and mortgage were made, the mortgage containing a covenant by Nodin to pay £300 and interest. Several half- yearly payments of interest upon £300 were made, but it did not appear that the property was not of sufficient value to pay the debt, or that the payments had been applied to the interest. Held, all the securities were kept alive, and the defendant could not avail himself of the Statute of Limitations in a suit upon the note. The decision was put upon the ground, that the whole transaction was a single one, the loan being made upon mortgage, and the note given as collateral security ; and therefore, so long as interest was paid on the whole sum, all the securities remained in force.* So, in Massachusetts, if the maker of a promissory note, which has been transferred by indorsement without date, give the indorsee a mortgage, after six and within twenty years from the time of payment of the note, to secure " such sums of money as the said (mortgagor) may at this time owe the said " (mortgagee) ; the presumption is, that the note had been indorsed before the making of the miortgage ; the mortgage is in equity an acknowledgment that 1 See Heyer v. Pruyn, 7 Paige, 465 ; 2 Almy v. Wilbur, 2 W. & Min. 371. Den V. Spinning, 1 H.-ilst. 473 ; Miller ' Brocklehurst v. Jossop, 7 Sim. 438. V. Helm, 2 Sm. & M. 687 ; Cheslyn v. * Dowling v. Ford, 11 Mecs. & W. Dalby, 2 Y. & CoU. (Excli.) 170. 329. 26 THE LAW OF MORTGAGES. [CH. XXV. the note was then due ; and the mortgagor cannot redeena with- out paying the note.^ § 26. But, in tlie same State, it was previously held, that a note secured by mortgage, which had been due more than six years at the death of the maker, and was presented by the administrator, who was himself the holder, to the Probate Court for allowance, was rightly rejected by that court, and could not be allowed by the Supreme Court of Probate in virtue of its equity powers, by reason of its being connected with the mortgage .2 § 27. A similar question has arisen, in regard to a cove- nant for payment of the debt, contained in the mortgage itself. Thus, in case of a mortgage, with a covenant to pay the debt, the mortgagor, and the mortgagee as his surety, afterwards conveyed the premises, in trust, to sell them, and pay, first a debt from the mortgagor to the trustee, which both mortgagor and mortgagee covenanted to pay ; and secondly, to pay the mortgage debt. The mortgagor subsequently executed to the mortgagee an equitable charge on other property. Seventeen years afterwards,' the trustee sold the estate, and applied the proceeds in part payment of his debt. Eight years afterwards, a bill was filed by the mortgagee against the mortgagor to realize the equitable charge. Held, until the trust was ex- hausted by the sale, the covenant in the mortgage was unaf- fected by lapse of time ; that the debt and the personal remedy to recover it subsisted at the filing of the bill, and the equitable charge was therefore then in force. This charge was held to be, as to the principal debt, only a collateral security in aid of the trust to sell, and to remain in force so long as the debt existed.^ § 28. A statute, providing that " actions upon notes secured by mortgage may be brought as long as the plaintiff" is entitled to commence any action upon the mortgage," was held inap- plicable to a signer of the mortgage note, who was not also a party to the mortgage ; and this, whether he were principal or surety, or whether the mortgage were given with or without 1 Balch V. Onion, 4 Gush. 559. 2 Grinnell v. Baxter, 17 Pick. 383. Ace. Lingan v. Henderson, 1 Bland, 282. 8 Bennett v. Cooper, 9 Beav. 252. CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 27 his consent. It was remarked by the Court, that no other similar statute had been enacted in England or America.^ Contrary to the prevailing rule, it is held in Texas, that, if the debt be barred by the Statute of Limitations, the mortgage will be barred also.^ The revival of the debt by a new promise will also operate as a revival of the mortgage, without words to that effect in the new promise. But not if there be an expressed intention to the contrary.^ § 29. But whether or not a debt secured by mortgage is barred by the Statute of Limitations, an action may still be maintained upon the mortgage, notwithstanding the lapse of a period of time sufficient to bar the debt, if it stood alone."* (a) The fact, that an action on the debt is barred, raises no pre- sumption of payment.^ Thus the demandant claimed under a mortgage, given to secure certain notes, which were barred by the Statute of Limitations, and the tenant under a subsequent mortgage of the same premises, made expressly subject to the prior incumbrance. Held, the claim upon the first mortgage was not barred. Putnam, J., says : " A reference to the con- dition contained in the mortgage, shows that it is to be and remain in full force until the debt shall he paid. The creditor has a double remedy : one upon his deed, to recover the land ; another upon the note, to recover a judgment and execution for the debt ; and it does not follow that he cannot recover on one, although there may be some technical objection or diffi- culty to his recovery upon the other. The debt remains, although the Statute of Limitations may discharge the remedy upon the note. Thus, in 3 Esp. R. 81, Spears v. Hartly, it was held by Lord Eldon, that where a creditor obtains posses- sion of goods on which he has a lien for a general balance, he may hold in virtue of his lien, although the Statute of Limita- » Savings, &c. v. Ladd, 40 N. H. 459. Duty v. Graliam, 12 Tex. 427 ; Fisher's, 2 Perkins v. Sterne, 23 Tex. 56L &c. v. Mossmaii, 11 Oiiio St. 42 ; Wil- 3 Ibid. kinson v. Flowers, H? Miss. 679. See * Whipple V. Barnes, 21 Wis. 327 ; Hammonds v. Hopkins, 3 Yerg. 625 ; Knox V. Galligan, ib. 470; Thayer v. Baldwin v. Norton, 2 Conn. 163; Rich- Mann, 19 Pick. 635-537 ; Ohio, &c. v. mond v. Aiken, 25 Verm. 324. Winn, 4 Md. Ch. Dec. 253; contra, » Wilkinson v. Flowers, 37 Miss. 579. (o) The same principle applies to a mortgage of personal property. Crane V. Paine, 4 Cush. 483. 28 THE LAW OF MORTGAGES. [CH. XXV. tions has run against a part of his demand. The debt was not discharged by the statute ; it was the remedy only which was affected. If there were no reference in the condition to the notes, the case would seem too clear for argument ; thus, if the condition were, that the mortgage should be void when the mortgagor or his executors, &c., should pay a certain sum of money, with lawful interest, it would be in that respect like a Welsh mortgage, and nothing short of payment would defeat the title of the mortgagee. Now, the reference to the notes recognizes the debt. The mortgage is given to secure the pay- ment. It is to be discharged and rendered of no effect when the debt is paid. In Toplis v. Baker, 2 Cox, 123, it was said by the Court, that ' if the collateral security had been a note of hand instead of a bond, the Statute of Limitations would run against the note and leave the mortgage as it was.' " So a mortgage, to indemnify the mortgagee for his liability as surety upon a note of the mortgagor, creates a trust and an equitable lien for the holder of the note, subject to which the mortgagee holds the land, though the note be barred by the Statute of Limitations, and as between the mortgagee and mort- gagor the mortgage be foreclosed. ^ (a) So a mortgage, made to secure a note which is barred by the Statute of Limitations when the mortgage is given, is a valid security .^ And where a mortgage is taken to secure a note, and the remedy on the latter is barred by the Statute of Limitations, the debt being unpaid, the creditor may avail himself of the statutory remedy to foreclose his mortgage in satisfaction of his debt.^ § 30. But the non-production of the personal security, in connection with great lapse of time, will operate as a bar to a suit upon the mortgage, to recover the land. Thus, in 1814, an action was brought by the administrator of the mortgagee upon a mortgage dated in 1773. The plaintiff produced a 1 Eastman v. Foster, 8 Met. 19. 2 Merrills v. Swift, 18 Conn. 257. 3 ELkins v. Edwards, 8 Geo. 325. ' (a) And this trust will bind credit- but the registration of the mortgage ors and purchasers of the land, or the being legal notice to all the world, assignee of the mortgagor under the 8 Met. 19. insolvent law ; not being a secret trust, CH. XXV.] FORECLOSURE. — LAPSE OF TIME. 29 record copy of the mortgage, but not the original mortgage or the note. It appeared that, in the revolutionary war, the mort- gagee's shop, in which many of his papers were kept, was burned. There was no evidence of possession or a demand of possession, till a few weeks before commencement of suit ; nor of any demand of payment of the note. But it was proved that in 1776 the mortgagor left the State and soon died. The defendant claimed under conveyances from the mortgagor, and subsequent continued possession. Held, even if the original securities were produced, the lapse of time would raise a pre- sumption of payment, and be a bar to the action. This pre- sumption was not rebutted by the mortgagor's leaving the State, because the note was due before he left, and the land might have been resorted to afterwards. But, moreover, the office copy was not legal evidence, the loss of the original not being sufficiently proved.^ 1 Inches v. Leonard, 12 Mass. 379. 30 THE LAW OP MORTGAGES. [CH. XXVI. CHAPTER XXVI. FORECLOSURE BY PROCEEDINGS AT LAW AND IN EQUITY. 1. Foreclosure by bill in equity; strict 14. Form of the decree as to the time foreclosure or sale ; the civil law. of payment; extension of time, and open- 7. Foreclosure bj'^ sale; remarks upon ing of the foreclosure; decree in the case the objects and policy of this practice. of infants, &c. § 1. It has been shown (ch. 25), that a mortgagor may be barred of his right of redemption by lapse of time, and the mortgagee's undisturbed possession. In addition to this gen- eral limitation, the law has provided more specific modes of barring or foreclosing an equity of redemption, after breach of condition, (ft) § 2. Two general methods are provided by law for this pur- pose, independent of statutory regulation ; both through the medium of a bill in equity. In the language of the old law, the mortgagee is allowed to exhibit his bill.^ (b} The one mode is 1 Com. Dig. Chancery, 4, A. 11. (a) And this without reference to the amount of the debt. " The question in an action of ejectment is not, what is the amount of the debt ? but has the plaintiff a right to the land 1 It is per- fectly immaterial, whether £10 or £10,000 is due on the mortgage ; the right of possession is equally perfect in either case, and of consequence his right to a recovery." Per Boudinot, J., Den V. Spinning, 1 Halst. 471. The same remarks are equally applicable to a bill in equity as to a suit at law. Foreclosure cannot be decreed before a breach of the obligation for payment. Miller v. Cravens, 2 Duv. 246. {h) Equity alone can decree a recon- veyance ; and, as a necessary incident, may adjust the accounts between the parties. Breckenridge v. Brooks, 2 A. K. Marsh. 335. It is held, that a party may forego the statutory remedy, and bring a bill in equity. Riley v. McCord, 24 Mis. 265. Chancer}^ jurisdiction is very broad- ly exercised in favor of a mortgagee. Thus, on a bill to foreclose a mortgage, if the jiremises are misdescribed, and it is shown by proper evidence what land was intended to be mortgaged, the in- strument may be reformed, and the suit proceed to foreclosure. Davis v. Cox, 6 Ind. 481. It is held, that, where a statute reg- ulates the terms of redemption of mort- gaged lands, sold under decrees for foreclosure, but does not in terms pro- hibit strict foreclosure, it may be well presumed by the Coui't, that it was not mere inadvertence on the part of the legislature that the power to enter such CH. XXVI.] FORECLOSURE. — FORMS OF PROCEEDING. 31 a strict foreclosure, so commonly entitled, whereby, after cer- tain proceedings, the mortgagee is cither expressly or by mere operation of law adjudged absolute owner of the property to which he had l)cfore only a conditional or defeasible title. This is said to be adopted only where the interests of botii parties require it, as where the mortgagor is insolvent, and the prem- ises not of sufficient value to pay the debt and cost.^ The other mode is a sale of the properfi/ under the direction of an officer of the Court, in which case the proceeds are applied to the discharge of incumbrances according to priority, and the balance, if any, paid over to the mortgagor. Land mortgaged in fee may be sold under a foreclosure, as well as personal property and estates for years in land.^ Foreclosure being clearly within the jurisdiction of equity, it is held tliat a court of equity, having obtained jurisdiction for this purpose, may give full relief, and order a sale.^ And, after a sale, there will be no right of redemption, except such as is expressly provided by statute.* (a) 1 Johnson v. Donnell, 15 111. 97. 2 Lansinf; v. Albany, &c., Ilopk. 102; Johnson v. Donnell, 15 lU. 97. decrees was not taken away. Johnson V. Donnell, 15 111. 97. Where it was provided, in a deed of trust and mortgage, that the trustee should proceed to sell, in a certain event, upon the written request of cer- tain beneficiaries ; it was held, that, although it were admitted that the trustee could not liave proceeded to sell, if the property liad remained in Alabama, where the trust deed had left it, yet, when he was prevented by the acts of the defendant (running the prop- erty off to Texas) from executing tlie trust in the specific manner pointed out in it, and had to resort to a suit to foreclose the mortgage, it could be en- forced by tlie direction and according to the rules of the forum to which the trustee had been compelled to resort, in order to secure the trust reposed in him. Givens v. Davenport, 8 Tex. 451. See Ashhurst v. The Montour, &c., 35 Penn. 30. 3 Belloc V. Rogers, 9 Cal. 123. * Weiver v. Heintz, 17 111. 259. Conveyance to A., in trust for sale, and to pay himself his debt, with a pro- viso for reconveyance on payment, and a covenant by A. not to sell until six months after notice to pay. Held, the object of the trust being to secure money, it was in the nature of a mort- gage, though no equity of redemptitn was expressly reserved; and that A. was not entitled to a decree for an im- mediate sale, but that the debtor ougiit to have six months to redeem. Bell v. Carter, 10 Eng. Law & Hq. 50. (a) Where a bill prays for a strict foreclosure, the Court ma}', upon proof that there is no other claim against the estate, and that its value : Toomer, 5 Rich. 261. 143. 3 Coote, 570 ; 4 Kent, 185. 7 Bedford v. Duly, 1 A. K. Marsh. * Hansard v. Hardy, 18 Ves. 4G0. 220. 5 Mussina v. Bartlctt, 8 Tor. 288, 289. (a) It is also held, that sale may be need not require that he make return made by the sheriff, and the decree of such sale. 42 THE LAW OF MORTGAGES. [CH. XXVI. entered. Spillcr moved to be made a party, and to have the decree so altered, that he miglit be at liberty to pay the money for saving his equity of redemption. Per curiam : Let Mr. Spillcr be at liberty to file a bill, stating his interest, and pray- ing the decree may be so varied as to let him in to pay the money. It would be unjust to foreclose the equity of redemp- tion, and bar his title to his moiety, which he acquired fairly, without putting it in his power to prevent the foreclosure by paying the money. ^ § 23. In Oliio,^ a suit was brought to collect money secured by a mortgage. Lane, J., says : " In all cases of this nature, the mortgagee may insist on a sale ; and he is entitled to a decree for foreclosure, where two-thirds the value of the mortgaged tenements does not exceed the amount of the debt. (1 Ohio, 235.) Wiiere a sale is to be made, it is the interest of all that no unnecessary delay should be made. In these cases, after the amount due shall be ascertained, either by a computation, or by reference to the Master, a decree may be entered, commanding the Master to make the amount of money due, by a sale of the mortgaged tenements (or of so much as may be necessary), under the forms and restrictions pre- scribed by the statute for the sale of lands by execution at law. But where the debt cannot be paid by a sale of the land, and the mortgagee is desirous to purchase, the value should be ascertained in some mode analogous to that directed by the execution law. A decree may be entered, directing the Master to cause a valuation, in the manner prescribed by that statute, and upon its return, a decree may be entered, either for fore- closure or sale, as the appraisement may justify ; and in the event of a sale, no new valuation will be required ; and this case will not cause the delay of a term, if this return of the value can be made during the session of the court." § 24. "Where the mortgagor pays the debt after a decree for foreclosure, but pending the time limited for redemption ; the mortgagee becomes a trustee for him, and is bound to release to him on request.^ 1 Spiller V. Spiller, 1 Hay. 482. 2 Higgins V. West, 5 Ham. 856. 3 Robinson v. Cross, 22 Conn. 171. CH. XXVII.] STATUTORY FORECLOSURE. 43 CHAPTER XXVII. FORECLOSURE IN THE UNITED STATES. STATUTORY PROVISIONS AND REMEDIES IN THE SEVERAL STATES. 1. The remedies for foreclosure are gen- erally regulated by statute. 2. The statute must be strictly pursued. 3. Whether the proceedings must con- form to the law in force when the mort- gage was made. 5. Statutes of the several States, and judicial constructions thereof. 6. New York. 15. Pennsylvania. 18. Delaware. 19. New Jersey. 22. Georgia. 27. South Carolina. 28. North Carolina. 29. Maryland. 30. Mississippi. 31. Florida. 33. Texas. 35. Alabama. 39 a. Louisiana. 40. Michigan. 49. Arkansas. 50. Illinois. 65. Indiana. 74. Ohio. 82. Missouri. 86. Kentucky. 89 a. Iowa. 90. Wisconsin. 93. Minnesota. 94. California. 95. Massachusetts, Maine, New Hamp- shire, Rhode Island. 100. Massachusetts. 101. Maine. 108. New Hampshire. 111. Rhode Island. 115. Vermont. 117. Connecticut. § 1. The general rules and principles above stated, with re- gard to the foreclosure and redemption of mortgages, liave been to some extent superseded by very minute statutory provisions in the several States of the Union, (a) This re- (a) These statutes themselves are of course the only reliable guide in the last resort upon individual questions which may arise in practice. From the nature of the case, a general treatise, like the present work, cannot assume to present more than a general view of express enactments so numerous and detailed, and at the same time so fluctuating, as those which regulate the subject of foreclosure and redemption in the several States. The prevailing practice in any particular State, as stated in the text, may liave been materially modified by late statutes, which have escaped notice. It has been remarked in a recent case (King v. The State, &c., 7 Cush. 7), with reference to the point, that a mortgagee is not strictly a trustee: " If this is true in England, where the rights of the mortgagee, after condi- tion broken, are jiurely equitable, and such as are administered by a court of equity ; much more in Massachu- setts, where the right to reileem, after condition broken, is asccrtaincil and regulated by law, as eflTcctually as the right of the mortgagor (mortgagee) to hold for the security of the debt." Ibid, p. 15. 44 THE LAW OP MORTGAGES. [CH. XXVII. mark does not apply to the doctrine of extinguishment of the title, either of the mortgagee or the mortgagor, by lajjse of time (^supra, eh. 26), which seems still to remain, for the most part, in full force ; (a) but to the form of legal and judicial process, by which the rights of the respective parties are to be enforced. With regard to the right of redemption, after breach of condition, the uniform remedy is a bill in equity, inasmuch as the legal title has ceased to exist. (^Infra, ch. 80.) On the other hand, the proceedings to enforce a mort- gage, and obtain a foreclosure, are very various in the differ- ent States ; in some, pursuing the English system of bill and decree in equity ; in others, taking the form of real action or ejectment ; in others, of petition or scire facias, provided as a summary remedy, adapted solely to this particular case. In some of the States, concurrent proceedings are allowed at law and in equity ; and the general, though not universal rule is (as will be hereafter more particularly explained — see ch. 31), that the mortgagee may at the same time, and in different actions, proceed to enforce the mortgage and the debt secured thereby. 1 § 2. It has been held, that, where sales under a mortgage are regulated by statute, the provisions of the statute must be strictly pursued.'-^ Thus, where a statute requires the exe- cution in an action upon a mortgage to be recorded, the levy of such execution without reasonable registration does not foreclose the mortgage, as against a bond fide purchaser with- out notice prior to the registration, or a second purchaser from him after registration.^ So, in Maine, under Stat. 1821, ch. 39, a mortgage cannot be foreclosed " by the consent in writing of the mortgagor," without an actual entry by the mortgagee, or those claiming under him, for condition broken.* And, if a 1 See Satterwhite v. Kennedy, 3 Strobh. 457. 2 Sherwood v. Reade, 7 Hill, 431 ; Williamson v. Crawford, 7 Blackf. 12. 3 Robbins v. Rice, 7 Gray, 202. * Pease v. Benson, 28 Maine, 336. (a) In North Carolina, it is pro- of redemption, shall arise in ten years vided (1 N. C. Rev. Stat. 375), that a after breach of condition, or after the presumption of payment of the mort- last payment is made on the mortgage, gage, or an abandonment of the right or the right of action has accrued. CH. XXVII.] STATUTORY FORECLOSURE. 46 foreclosure is void, the fee still remains in the mortgagor, and no action can be maintained, either of ejectment or trespass, which affirms the title to be in the mortgagee.^ But althougli a statutory foreclosure be irregular, and no bar to the equity of redemption, yet the purchaser at such sale succeeds to all the interest of the mortgagee.^ § 3. It has been also held, that a foreclosure sale must be con- formable to tlie law which was in force when the mortgage was executed.^ (a) And where a State law provided, that a mortgagor's equitable title should not be extinguished for twelve montlis after a sale under a decree in chancery, and that no sale should be made for less than two-thirds of the appraised value of the property ; such law was held invalid, under the Constitution of the United States, as impairing the obligation of contracts.^ So where a mortgage, made before the passage of the act, which required sales to be on a credit of two years, unless the complainants would accept the notes of the bank of the Commonwealth, contained a stipulation, that the mortgagee might sell the estate for ready money ; held, the Chancellor was bound to enforce the sale for cash, when appealed to after the passage of the act.^ So where, be- tween the time of giving a mortgage with power of sale, and a sale under the power, the time of redemption was changed from two years to one ; held, the right still continued two years .^ § 4. But a statute, authorizing sales of mortgaged premises, under the power of sale contained in a mortgage, upon a notice of twelve weeks, was held not unconstitutional and void, so far as it operated upon mortgages in existence at the time of its passage ; notwithstanding that previous to that statute a no- 1 Van Slyke v. Sliclden, 9 Barb. 278. * Bronson v. Kinzie, 1 How. (U. S.) •^ Gilbert 1-. Cooley, Walk. Cli. 494. 311; McCracken v. Hay ward, 2 ib. 3 Sbeets v. Peabody, 7 Blackf. (il3 ; G08 ; 17 Pet. 28. Wolf V. Ileatli, ib. 154 ; Franklin v. ^ Pool v. Young, 7 Monr. 587. Thurston, 8 ib. 160. « Cargiil v. Power, 1 Mann. 369. (a) The Act of Georgia, confiscating only sequestered during the war, the the estate of the mortgagor, was held estate of the mortgagee not having no bar to the claim of the mortgagee, been confiscated, lligginson i-. Meiu, a British merchant, whose debt was 4 Cranch, 415. 46 THE LAW OF MORTGAGES. [CH. XXVII. tice of twenty-four weeks was necessary.^ And such power, authorizing the mortgagee, in case of default in payment, to sell according to laiv^ shall be construed to mean, according to the law in force at the time the sale became necessary .^ So the Indiana Act of 1843, concerning foreclosure, was held to apply to mortgages previously executed.^ § 5. The following are in substance the statutory provisions of the several States upon this subject : — § 6. In New York, it is said the methods of foreclosure are quite similar to those in Michigan and Minnesota.'^ § 7. In this State, ejectment cannot be brought upon a mort- gage.^ Upon a bill for foreclosure or satisfaction, the Court may decree a sale of the whole or a part of tbe land. When a bill is filed for satisfaction, the Court may not only compel delivery of the land to a purchaser, but, on return of the re- port of sale, decree payment of any balance remaining due, and recoverable by law, either by the mortgagor or a surety, if the latter be joined in the bill ; and issue executions, as in other cases, (a) During, and after such process, no suit at 1 James v. StuU, 9 Barb. 482. by v. Cramer, 12 How. Pr. 490 ; Jack- '^ Per Johnson, J., James v. Stull, 9 son v. Clark, 7 John. 217 ; Westgate Barb. 482. v. Handlin, 7 How. Pr. 372; Sayles s Withrow V. Clark, 2 Cart. 107. v. Smith, 12 Wend. 57 ; Cole v. Sav- Acc. Doe V. Woodward, 1, 446. age, Clarke, 361 ; Jackson v. Henry, * 1 Washb. R. P. 601. See §§ 40, 10 John. 185; v. Dominick, 14 93. See, in addition to cases elsewhere John. 435 ; Hyland v. Stafford, 10 Barb, cited, M'Lean v. Towle, 3 Sandf. Ch. 558 ; St. John v. Bumpstead, 17 Barb. 117 ; Allen v. De Witt, 3 Comst. 276 ; 100 ; Wetmore v. Roberts, 10 How. Pr. Mechanics', &c. v. Roberts, 1 Abb. Pr. 51 ; Eddy v. Smith, 13 Wend. 488 ; 381 ; Wheeler v. Van Karen, 1 Barb. Waller v. Harris, 7 Paige, 167 ; Lay- Ch. 490; Connecticut ;;. Sheridan, man v. Whiting, 20 Barb. 559; Bryan Clarke, 533 ; Ferris v. Ferris, 16 How. v. Butts, 27 ib. 503 ; Moss, 6 How. Pr. Pr. 102 ; 28 Barb. 29 ; Engle v. Under- 263 ; Collins v. Standish, 6 How. Pr. hill, 3 Edw. 249 ; Nott v. Hill, 6- Paige, 493; Kendall v. Treadwell, 5 Abb. Pr. 9 ; Lane v. King, 8 Wend. 584 ; Thomp- 16 ; McKinstry v. Mervin, 3 John. Ch. son V. Somerville, 16 Barb. 469; Hone 466, n. ; Spencer v. Harford, 4 Wend. V. Fisher, 2 Barb. Ch. 559 ; Burns 381 ; Morgan v. Plumb, 9 Wend. 287 ; V. Nevins, 27 Barb. 493; Merrian, 4 Lawrence v. Lawrence, 3 Barb. Ch. 71. Denio, 2.54; Doolitlle u. Lewis, 7 John. & 2 N. Y. Rev. Stat. 312; Stewart Ch. 45; Loring v. Hailing, 15 John. y. Hutchins, 6 Hill, 143. See, as to re- 119; Colew. Moffitt, 20 Barb. 18; Horn- demption, Stat. 1838, 262. (a) See Manhattan, &c. v. Green- Rowland, 4 Seld. 448; Pell v. Ulmar, wich, &c., 4 Edw. Ch. 315; Potter v. 21 Barb. 500. en. XXVII.] STATUTORY FORECLOSURE. 47 law shall be brought for the debt, unless authorized by chan- cery. The bill must set forth, whether any proceedings have been had at law upon the debt ; and, if judgment has been recov- ered, the bill will be dismissed, unless the sheriff has returned on execution, that the debtor has no property, except the prem- ises mortgaged, (a) Sales shall be made, and deeds given, by a Master, and shall vest the same title in the purchaser, that a foreclosure would have vested in the mortgagee, and shall be as valid as if executed by both mortgagee and mortgagor. The surplus proceeds shall be brought into court, for the use of the defendant or other party entitled, and, unless taken out in three months, invested for their benefit. If the bill is fded for the payment of an instalment or of interest, it shall be dis- missed, upon the defendant's paying the amount due, with costs, before the decree for a sale. If paid afterwards, proceed- ings shall be stayed, but a decree of foreclosure and sale en- tered, to be enforced upon any subsequent default, on a new petition, and by a further order. In such case, the Court will ascertain, through a Master, whether a portion of the land may be sold, sufficient to pay what is due, and decree accordingly. If a sale of the whole will be most beneficial, such sale will be decreed, and the whole debt paid, deducting interest on the portion not due, if payable without interest ; or the Court may order such portion put out at interest for the benefit of the parties. ^ § 8. Within fifteen months after an execution sale, the mort- gagor may redeem the whole of the premises, or any part separ- ately sold, subject to redemption by any other creditor. ^ § 9. Where a tender was made of the purchase-money, and ten per cent interest ; held, the tender, if not accepted, did 1 2 N. Y. Rev. Stat. 191, 193. See Paige, 399 ; Stanton i--. Kline, IG Barb. N. Y. Laws, 1837, 455, 456; 1838, 261, 9; Bunce v. Keed, ib. 347 ; Sts. 1857, 263 ; 1840, 289, 290 ; 1842, 383, 409 ; 667. 1844, 529 ; also, Cole i'. Savage, 1 2 N. Y. Stat. 1847, 508. Clark, 482; Curtis v. Hitchcock, 10 (a) See North River, &c. v. Rogers, gage, which states " the sum of 8 Paige, 648 ; Shufett v. Shufctt, 9 dollars " as claimed by this deponent, Paige, 137. An aflidavit, under the is insufficient. People i-. Becker, 20 statute, of the sum due upon a mort- N. Y. 354. 48 THE LAW OP MORTGAGES. [CH. XXVII. not save the subsequent interest at seven per cent unless the money had lain idle since the tender.^ § 10. Where lands are mortgaged as one entire lot, and sub- sequently subdivided by the mortgagor into smaller lots for the purposes of sale or the convenience of the mortgagor ; the mortgagee, upon a foreclosure, under the statute (2 Rev. St. 546, § 6) is not bound to advertise and sell in parcels, but may sell the whole as one undivided lot, by the description in the mortgage. § 11. This statute, requiring a sale in parcels, applies to premises consisting, at the time of giving the mortgage, of distinct tracts, farms, or lots, and mortgaged and described as such.2 § 12. A foreclosure by advertisement and sale, without ser- vice of the notice of sale upon the mortgagor, as required by the Act of May 7, 1844, is irregular and void.^ § 13. The plaintiff must serve a copy of the notice and sale on the mortgagor, if living, and, if dead, on his personal repre- sentatives ; and he mu§t prove the death of the mortgagor by legal evidence, and not by mere hearsay or reputation.* (a) § 14. The statute does not require that notice of sale should be served personally on those entitled thereto, nor left at their dwellings, even if they reside in the same place with the fore- closing party, or his or their attorney. It is sufficient if copies are deposited in the post-office, where the parties reside, twenty- eight days prior to the sale, properly folded and directed to them at their respective places of residence.^ (^>) 1 Burr V. Stanley, 4 Edw. Ch. 27. * Cole v. Moffitt, 20 Barb. 18. 2 Lamerson v. Marvin, 8 Barb. 9. ^ Stanton v. Cline, 1 Kern. 196. 3 Van Slyke v. Shelden, 9 Barb. 278. (a) "Personal representatives," in is not a fatal objection to the notice, the foreclosure law of May 7, 1844, that it advertised a sale of the mort- means executors or administrators, not gage or mortgage debt, instead of the heirs or devisees. If there be no per- mortgaged premises ; or that it was sonal representatives, the notice pro- dated the day before the day of publi- videdfor need not be given. Anderson cation, and stated in figures the amount V. Austin, 34 Barb. 319. alleged to be due on the day of the A notice by advertisement, referring date. Judd v. O'Brien, 21 N. Y. (7 correctly to the clerk's office and the Smith) 186. date of record, is good, although it (b) If a borrower from the United misstates the number of the book. It States' deposit fund omits to pay the CH. XXVII.] STATUTORY FORECLOSURE. 49 § 15. In Pennsylvania, (a) after twelve months from the day of payment of the debt or performance of the condition named in the mortgage, a scire farias may he issued against the mortgagor, and, upon execution issued thereon, the land may be sold as upon other executions ; or, for want of pur- chasers, delivered to the mortgagee, not subject to redemption. If the mortgagee have released a part of the land, he may proceed against the remainder ; but the mortgagor may plead, that the sum claimed is greater than ought proportionably to be charged upon the land. No sale or delivery of the mort- gaged premises shall give any further term or estate in the land, than the land is mortgaged for. A sale upon a mortgage shall not affect the prior lien of any other mortgagee. ^ A mort- gagor may, upon petition, pay into court the sum claimed, and have any objections tried, a satisfaction entered, or a reconvey- ance made.- § IG. The scire facias is a proceeding in ran, and a substi- tute for a bill of foreclosure in chancery.^ It does not exclude the remedy by ejectment."^ Tiie judgment is de terris merely, and the defendant is not personally liable for costs.^ The record must contain a sufficient description of the land, or such part as is necessary to be sold for payment of the debt ; otherwise the judgment is void, though affirmed by the Supreme Court, and a sale conveys no title.*^ A terre-tenant cannot 1 Purcl. Dig. 194, 204, 292, 297 ; 2 Pe^n. g^r^^_ iggi^ gyj Pcnn. Stat. 1842, GG ; Stat, of April 6, » Moore i'. Harrisburg, &c., 8 Watts, 18:30. See Roberts v. Williams, 5 151, 152 ; 19 Penn. 77. Wliart. 170 ; Mode, &c., G W. & S. < Martin v. Jackson, 27 Penn. 504. 280 ; Henry v. Sims, 1 Whart. 187 ; ^ Wickersham v. Fetrow, 5 Barr, Penn. Stat. 1845, 489 ; 1849, 621, 681 ; 260. Magew V Stevenson, 1 Grant, 402 ; G Wilson v. McCullough, 19 Pcnn. Stevens v. The North, &c., 35 Penn. 265. 77. interest within twenty-three days from premises. Ashhurst v. The Montour, the date of its falling due, his mort- &c., 35 Pcnn. 30. gage becomes ipso facto foreclosed, and Where there is no trust to Ik- adniin- the commissioners are at once seised istered as the immediate object of the absolutely of an indefeasible fee. suit, or the contingency has not hap- Fellows V. Commissioners, 36 Barb, pened which was to bring it into 655. exercise, courts of equity have no (a) In this State, in general, the juri.«diction over mortgages. Bradley Court cannot order a sale of mortgaged v. Chester, 36 Penn. 141. VOL. II. 4 50 THE LAW OP MORTGAGES. [CH. XXVII. defend on his petition, unless by stipulation on the granting of his petition.' § 17. It is said ; ^ " The claim in the action of scire facias is for money, and therefore a bare chose in action^ not assignable at common law ; and I am not aware that we have any .statute • expressly making it so.. The scire facias is altogether differ- ent from an action of ejectment, which is brought for the re- covery of the possession of the mortgaged premises, and rests entirely upon the right to the possession, which is considered as transferable. Upon this ground, the assignee may maintain ejectment in his own name." It has been held, that the lien of a mortgage is not merged in a judgment on scire facias oa such mortgage, nor affected by the lapse of five years from the date of the judgment.-^ But in a later case, where a mortgage was given to secure three bonds, payable at different times ; and after the maturity of the first, but before that of the second, judgment was entered upon the first, execution issued, and the land sold, before the other bonds were due : held, the sale discharged the mortgage lien, Gibson, C. J., says : " That a sale on a judgment for a debt, secured by a mortgage, discharges the lien of the mortgage, notwithstanding the Act of 1830, was asserted in Pierce v. Potter (7 Watts, 477), and put on what we think tenable ground. Though such a sale is within the letter of the act, it is not within its spirit, because it is not within the mischief which was intended to be reme- died by it. The purport of it is, perhaps, to declare, that no mortgage or judgment shall bind more than the equity of re- demption springing from a prior mortgage ; and that no more shall be sold on a liberari or fieri facias by a subsequent in- cumbrancer. The design was to protect the mortgage from the intermeddling of subsequent creditors ; but can a judg- ment creditor, who is himself the prior mortgagee, be deemed a subsequent creditor, or, in his capacity of mortgagee, an object of protection against himself? When he appears in a double character, a case has occurred which was not contem- 1 5 Barr, 260. 2 Per Kennedy, J., Moore v. Hanisbtirg, &c., 8 Watts, 151. 3 Helmbold v. Mann, 4 Whart. 410. CH. XXVII.] STATUTORY FORECLOSURE. 61 plated. Any one may renounce the benefit of a privilege pro- vided for himself." ^ (a) § 18. In Delaware, the mortgagee may sue out a sc. fac.^ and have a sale on execution. If no sale can be made, the land may be set off by appraisement.^ § 19. In New Jersey it is provided by statute, that redemp- tion shall be barred by possession of the mortgagee twenty years after default of payment. Upon a bill for foreclosure or satisfaction, the Court may order a sale of the whole or a sufficient portion of the land, either by a Master, or by a sheriff upon Ji. fa. But the sale shall pass no greater estate than the mortgagee would have gained by foreclosure.^ The mortgagee may have a writ of sc.fac, and the land may be sold on execution.* (6) § 20. Wliere a mortgagee brings a suit either upon the mort- gage or the bond secured thereby, if no suit in equity is at the time pending, and if the defendant brings into court the amount of debt and costs ; the Court will discharge him from the mort- gage, and order a reconveyance of the premises, and a delivery to the mortgagor of all evidences of title.^ 1 Berger v. Hiester, 6 Wliart. 210, * Nix. Dig. pp. 525, 526, 527, 528. 214,215. 5 1 N. J. Laws, 162. See N. J. 2 Rev. C. 1852, ch. Ill, §§ 55, 60. Laws, 1851, 342. 3 1 N. J. Laws, 412, 705; 1 Rev. Sts. 95, 917, 918, 919, 920. (a) A. brought ejectment against B., Penn. 14. Where the scire facias is on an equitable title, and a verdict was served on the terre-tenant, and there are rendered in ftivor of B. for a part of two nihils as to tlie mortgagor, a judg- the land, and in favor of A. for the ment for want of an affidavit of defence residue. The jury further found that is good against the mortgagor for not B.'s claim was under an equitable appearing, and against the terre-tenant mortgage, and that it had been satisfied for not taking defence in proper form, by the profits of the land before suit Stevens v. North, &c., 35 Penn. 265. brought. A., with leave of the Court, (b) Where one purchases land, and withdrew the money tendered by him assumes in his deed to pay off a bond previously to bringing the suit iind and mortgage of his grantor, to which paid into court, and received his bill of the land is subject, he thereby becomes costs from B., the officer's costs being a surety in respect to the mortgage also paid. Held, by the Pennsylvania debt. This obligation may be enforced Act of May 5, 1841, the verdict and by the mortgagee, on a bill to fore- proceedings were not a bar to another close, to the extent of the deficiency, ejectment by A. for the whole of the Klapworth v. Dressier, 2 Beasl. 62. same premises. Hinraan v. Kent, 15 52 THE LAW OF MORTGAGES. [CH. XXVII. § 21. If a part of the debt is not due, the whole land may- be sold and the whole debt paid, with a rebate of interest.^ § 22. In Georgia, upon application to the Court for fore- closure of a mortgage, the Court shall order that the debt be paid on or before the first day of the next term, the order to be served and published in a newspaper ; and, if not complied with, may render judgment for the amount due, and pass a rule absolute for a sale of the land, as upon execution ; the surplus proceeds, if any, to be paid to the mortgagor. If the mortgagor make affidavits of payments or set-offs, which ought to be allowed him, the Court shall refer the matter to auditors.^ § 23. A judgment to recover a sum of money, and that " the equity of redemption in and to certain lots of land, to- gether with all the rights thereof, from thenceforth be barred and foreclosed, and such other proceedings be had as are pointed out in the statute in such case made and provided," is a decree for the sale of the lands, and is sufficient.^ § 24. Where a mortgage is made to secure two notes falling due at different times, if the mortgagee forecloses and sells, upon maturity of the first, and the proceeds of sale are more than sufficient to pay it ; the surplus will not be held for the second note, but may be applied to other debts.* The Court say : " As to the priority of lien originally held by the mort- gagee there is no dispute. The question is, whether his lien upon this fund has not been divested by his own act in taking his judgment of foreclosure. A mortgage is a specific lien upon the thing mortgaged. It extends to nothing else. Our statute has prescribed the way in which the interest vested by the mortgage in the mortgagee shall be realized and reduced to possession, which is by special judgment and sale under execution of the mortgaged premises. The effect of this judg- ment and sale is not to enlarge the lien, but to transfer it from the thing mortgaged to the money for which it may sell ; and 1 N. J. Rev. Sts. 918-920. See N. » Dickerson v. Pfcwell, 21 Geo. J. Laws, 1858, 463 ; 1860, 159. 143. 2 Prince, 168, 423, 424. See Willis * Hobby v. Pemberton, Dudl. (Geo.) V. Mcintosh, Geo. Decis. Part 1, 162; 212. Guerard v. Polhill, R. M. Charl. 237. CH. XXVII.] STATUTORY FORECLOSURE. 53 to this money the mortgagee is entitled, to the extent of his debt, and no further. The excess belongs to tiic mortgagor. Unt how is the extent or amount of the debt to be known? Cer- tainly not by the mortgage, for that is sunk and lost in the higher evidence. It must be ascertained by the judgment of the Court. How far the second rule absolute or judgment of foreclosure may affect the mortgaged premises, it is not neces- sary or proper now to say. It certainly, however, can affect nothing but the mortgaged premises. Tiie excess of money beyond the amount of the first judgment having been vested in the mortgagor, and so become subject to the claim of general judgments, can no more be reached by it than could any other money or property of the mortgagor." § 25. Where mortgaged property, levied on under a judg- ment of foreclosure, is claimed by a trustee ; the mortgage and judgment of foreclosure, although the mortgage recites that the property is and has been for some time in the posses- sion of the claimant in his natural character, and although the mortgage deed is attested by the claimant as a magistrate, do not raise a primd facie presumption of right and title in the mortgagor.^ § 26. When mortgaged property is levied on under a judg- ment of foreclosure, and a claim interposed, the plaintiff in execution must prove title to the property in the defendant, at the date of the mortgage, or make out a primd facie case, by piX)of of possession in the mortgagor at that time, before the claimant is put ui)on an exhibition of his titlc.^ § 27. In South Carolina, mortgagees are expressly i)rohibitcd from bringing any possessory action for the land ; the mort- gagor being considered owner, even after breach of condition, and the mortgagee owner of the debt. Upon tlie recovery of judgment on the personal security, the judges of the court may order a sale of the land, giving, if they see fit, a reasona- ble extension of time, not exceeding six months, and allowing a credit of not more tlian twelve months. This proceeding is to operate a perfect foreclosure. But at any time before sale the mortgagor may prevent it, and entitle himself to an entry 1 Butt V. Maddox, 7 Geo. 495. 2 ibid. 54 TBE LAW OF MORTGAGES. [CH. XXVII. of satisfaction on the mortgage, by paying the debt and costs.^ § 28. In North Carolina, a snit may be brought on the mort- gage bond or the mortgage itself, if no bill in equity is pending to foreclose or redeem. The defendant may redeem by paying the debt to the mortgagee or bringing the money into court. And the Court will order a discharge.^ (a) § 29. In Maryland, the Court is authorized by statute to decree a sale ; but this is a mere cumulative remedy, which does not abrogate any pre-existing mode of relief; and there- fore the mortgagee may still have a foreclosure instead of a sale. If the latter is adopted, and the property sells for less than the amount of the debt, the plaintiff cannot have a decree for the balance of the debt, for the purpose of proceeding against the person or against other property of the debtor. But the sale will be no bar to a subsequent action at law upon the debt.3 (5) 1 1 Brev. Dig. 174, 175; 5 S. C. Sts. » Andrews v. Scotton, 2 Bland, 667, 170. 668. See Eichelberger v. Harrison, 3 2 1 N. C. Rev. Sts. 232. Md. Ch. 39 ; Ing v. Cromwell, 4 Md. 31, (a) Upon a bill for redemption, the Court will not order payment of the debt by a certain day, or that the bill shall be dismissed ; but in default of payment, that the property shall be sold, and the surplus paid to the mort- gagor. Ingram v. Smith, 6 Ired. Eq. 97. Whether a judgment creditor of a mortgagor can be let in to redeem the mortgage, without admitting a good title in the mortgagee, is doubted. Tucker v. White, 3 Dev. & Bat. Ch. 289. {h) In case of a decree for sale, time must be allowed the mortgagor for pay- ment. Jones V. Betsworth, 3 Bland, 194, n. The time, however, has been variously fixed, from one month to twelve or eighteen months. Williams, 3 Bland, 196, n. A statute of this State provides, that, in the case of an infant mortgagor, the Court may decree a sale or foreclosure of the property, or of enough to pay the debt. Ibid. n. See Worthington v. Lee, 2 Bland, 678 ; Lansdale v. Clarke, 2, 358, n. ; Atkin- son V. Hall, ib. 372; Wardrop v. Hall, ib. 666 ; Hunter v. Gaunt, ib. 667 ; Buchanan v. Shannon, ib. ; Boteler V. Beall, 7 Gill & J. 389. After the report of a sale by the trustee, under a mortgage executed under the Act of 1826, ch. 296, is made to the County Court, it has equitable jurisdiction over the case. Wilson v. Watts, 9 Md. 356. An objection to a sale under the Act of 1833, ch. 181, that the afiBdavit as to the amount due was not filed before the sale, may be taken by the purchaser before final ratification, and is fatal, even though the affidavit may be filed before the final action of the Court upon the sale, and the mortgagor may consent to its ratification. But such objection is too late after the final rati- fication has been duly made. Gatchell V. Presstman, 5 Md. 161. Sect. 10 of St. 1825, ch. 203, appUes CH. XXVII.] STATUTORY FORECLOSURE, 55 § 30. In Mississippi, the Circuit Court has jurisdiction of bills in equity, for the foreclosure of mortgages, whatever their amount, and, in the exercise of this jurisdiction, may pass upon questions auxiliary thereto ; l)ut whether the Court would have jurisdiction of such bill, where it would be first necessary to settle conflicting riglits of judgment creditors of the mortgagor, and those claiming under the mortgage, is doubtful.^ § 31. In Florida, a mortgagee files a petition to foreclose four months before sitting of the Court. Judgment is ren- dered for the debt, and an absolute foreclosure, at the first term. If the defendant is absent, an advertisement is re- quired. The act is not to interfere with the jurisdiction of the court of equity .^ § 32. A., the mortgagee of land from B., petitioned in the Circuit Court of Florida, for a foreclosure. B. acknowledged service, and also agreed that a decree should be rendered, fore- closing the mortgage upon the back of the petition. A decree for foreclosure was made, and execution ordered against the specific property mortgaged. Held, the Circuit Court had 1 Bibb V. Martin, 14 S. & M. 87. See Miss. Rev. Code, 1857, ch. 62, art. 48. 2 Thomps. Dig. 380. only to mortgage sales made under that As, for one-third cash, and the bal act, and not to those made under St. ance in six or twelve montlis, witii in- 1826, ch. 192, which are valid, altliough terest and security. Ibid, not made in the county where the land If the trustee makes an imperfect lies. White v. Malcolm, 15 Md. 529. or no feport, one being required, the The advertisement under St. 1826, sale is not to be set aside for tliat reason ch. 192, may describe the land by its only, but he should be ordered to file general location and number of acres, one. Ibid. and by reference to recorded deeds. The provision, that the parties may Ibid. at any time within twenty days after A trustee, or attorney, appointed by tlie sale, file exceptions, &c., does not the mortgagees to sell, may give the restrict their right to twenty days, but bond required. Ibid. allows them at least that, and does not The statute, requiring " twenty interfere with tiieir right under chan- days' notice in two or more of the daily eery practice, apart from the statute, to papers published," &c., does not require except at any time before final ratifica- the notice to be publislied twenty times tion. Ibid. An each paper ; but twice a week was St. 1826, ch. 192, has not been rc- held sufficient. Ibid. pealed by the adoption of the present Tiie sales may be on reasonable constitution. Ibid.; Eichelberger v. credit. Ibid. Ilardesty, ib. 548. 66 THE LAW OP MORTGAGES. [CH. XXVII. jurisdiction of the subject-matter, and the acknowledgment of service was a compliance with the statute requiring personal service ; but that execution should not have been ordered against tlie specific property. Also, that the description was sufficiently certain, by reference in the decree to the deeds of mortgage on record. ^ § 33. In Texas, any party entitled to foreclose a mortgage may present a petition, describing the debt and the property mortgaged. The mortgagor shall be summoned to appear at the next court, and show cause why the petition shall not be granted. Unless the debt is paid, judgment shall be rendered for the sum due, and an order passed for a sale. The surplus proceeds shall be paid to the mortgagor. Provision is made for a trial of the rights of the parties in case of any dispute.^ § 33 a. A judgment on a mortgage for the debt may be good so as to authorize a sale on execution, though it may be fatally defective so far as it also decrees a foreclosure.^ § 34. It is the general right of the defendant to be sued in his own county ; but, to foi'eclose a mortgage, he may be sued in the county where the land is situated.* § 35. In Alabama, in case of sale by order of chancery upon an incumbrance, one claiming under the mortgagor, but not a party, may redeem within five years.^ A mortgagor has the 'same right of redemption as an execution debtor ; provided the defendant in the execution, if in possession at the time of the sale, shall deliver it without suit to the vendee. An exe- cution creditor, whose debt is unsatisfied, may redeem, as in other cases of execution sale. One who redeems is bound to pay the occupant for his improvements.^ (a) § 36. On a bill to foreclose, the Court can only decree a sale or foreclosure ; and the balance of the debt must be pursued at law.'^ . 1 Shepard v. Kelly, 2 Fla. 634. 5 Clay, 329. 2 Hartl. Dig. 766, 767. 6 ibid. 503. 3 Kinney v. McCleod, 9 Tex. 78. '^ Hunt v. Lewin, 4 Stew. & Port. * Seguin v. Maverick, 24 Tex. 526. 138. (a) In this State, a late statute delivered to be recorded. Ala. L. provides, that a mortgage shall " take 1849-50, 68. See Creighton v. The eflfect" only from the time when it is Planters', &c., 8 Ala. 156. CH. XXVII.] STATUTORY FORECLOSURE. 67 § 37. But, to entitle the mortgagee to recover such balance, there must be a distinct covenant in the mortgage to pay the debt, or a separate bond or note, or other evidence of the debt.^ § 38. A mortgage of lands in Alabama, to the United States Bank in Pennsylvania, may be foreclosed in Alabama.^ § 39. The right of redeeming within two years, after a sale under a mortgage, can be enforced only in equity. A tender docs not restore the legal titlc.^ 39 a. In Louisiana, one having a mortgage importing a con- fession of judgment may proceed vid execiUiva, although the mortgagor has died, and his succession has accepted with benefit of inventory.^ § 39 h. G. sold to K, a plantation for $34,000, partly in cash, and the balance in notes secured by mortgage, with a pact de non alicnando in the act of sale. K.^subsequently sold the land to M. for notes secured by mortgage. G. having obtained an order for a writ of seizure and sale, and caused the land to be seized, the plaintiff, as administrator of M., instituted a suit to have the order of seizure and sale declared illegal, on the ground that G. had no right or privilege upon the property, having lost his mortgage by allowing ten years to elapse with- out reinscription. Held, the plaintiff was not without interest to intervene, for the purpose of showing that the property had been relieved of the incumbrance placed upon it by K., and not assumed by him in his purchase.^ § 39 e. The action given by art. 69 of the Code of Practice, to the mortgagee, against the third possessor of the mort- gaged property, depends on notice to him of the " amicable demand," and, on the non-payment of the debt l)y him, for ten days from service of the notice.^ § 39 d. A party holding a mortgage, by authentic act, against community property, is entitled to executory process, after the death of the wife, only upon giving notice jointly to her tes- tamentary executor, and to the husband.' 1 Hunt r.Lcwin, 4 Stew. & Port. 138. ^ Delony v. Georpe, 20 La. An. 2 Hitclicock V. U. S., &c., 7 Ala. 386. 21 C 3 Smith V. Anders, 21 Ala. 782. 6 Taylor i-. I'oarce, 15 La. An. 5G4. * Lavillebeuvre v. Heirs, 20 La. An. '' Poutz v. Bistes, 15 La. An. 636. 374. See Lewis v. Labaune, 13 La. An. 382. 58 THE LAW OF MORTGAGES. [CH. XXVII. § 40. In Micliigan,^ where a mortgage is payable by instal- ments, and the land consists of a single eighty-acre lot or a farm, and a sale becomes necessary for any but the last instal- ment ; portions may be sold as nearly square, and as near to the north-east corner, as possible. A mortgage payable by in- stalments is to be treated like distinct mortgages.^ In case of foreclosure, the sheriff immediately makes a deed to the pur- chaser, which is left with the register of deeds, and after one year delivered to the grantee (or after two years, unless the mortgage was made as security for the price of the land), in case the mortgagor does not in the mean time redeem.^ If the land consists of distinct lots, they are separately sold, and only enough of them to satisfy the claim. A deed is made by the officer, and recorded ; and, unless the debtor redeem in two years, paying seven per cent interest, is delivered to the pur- chaser.'* By late statutes, all bills for the foreclosure or satis- faction of mortgages shall be filed in the Circuit Court in chancery of the county where the premises, or any part there- of, are situated.^ No action of ejectment for the recovery of mortgaged premises, until the title becomes absolute upon a foreclosure.^ § 41. Where, in a foreclosure by advertisement, under the statute, a mistake occurs, which renders the proceedings ir- regular and voidable, the mortgagee has a right to' waive them, and commence de novo, by advertisement, or by a bill in chancery.'^ § 42. A purchaser under a statutory foreclosure, in order to recover the land after the equity of redemption has expired, must prove the regularity of all the foreclosure proceed- ings.^ § 43. A statute of 1840 provides for redemption after a fore- closure sale, by payment to the register of deeds. Under this statute, he alone is authorized to receive the money and destroy 1 Mich. Stat. 1839, 227. See Al- « Stat. 1844, 38 ; Rev. Stat. 500-503. bany, &c. v. Stevens, Walk. Ch. 6 ; ^ Laws of Michigan, 1861, p. 54. Mundy v. Monroe, 1 Mann. G8; Black- ^ Comp. L. Michigan, 1857, p. 1241. wood V. Van Vleet, 11 Mich. 252. " Atwater v. Kinman, Harring. Ch. 2 Mich. Stat. 1839, 228. 255. 3 Stat. 1840, 146. 8 Caswell v. Ward, 2 Doug. 374. CH, XXVII.] STATUTORY FORECLOSURE. 59 the deed. Nor can lie even receive a clieck for the amount, so as to bind the purchaser,^ § 44. Where a bill is filed to foreclose a ^nortgage against a non-resident mortgagor, who does not appear, if the premises are insufficient to satisfy the debt, the complainant must have recourse to his remedy at law for the balance, and the Court has no power to issue execution thereon.^ § 45. Under the statute regulating the terms on which non- resident defendants, in mortgage cases, are permitted to appear and defend, two things only are required of the defendant, namely, his appearance before the mortgaged premises are sold on the decree, and the payment of such costs as the Court shall award. The costs only are left discretionary with the Court, and, on payment of them, the defendant has a right to inter- pose a defence.^ § 46. The statute extends to all defendants who are non- residents, and makes no distinction between mortgagors and subsequent incumbrancers.^ § 47. A foreclosure bill must state that something is due on the note, and wliether proceedings have been had at law for the recovery of the debt.^ § 48. To prevent proceedings on a foreclosure bill, it is not necessary that judgment shall have been rendered on the bill or note accompanying the mortgage, but for the money for which the mortgage was given.*' (a) § 49. In Arkansas, the mortgagee files a petition, upon which J Woodbury v. Lewis, Walk. Ch. ■• Ibid. 256. 5 Bailey v. Gould, ib. 478. 2 Lawrence v. Fellows, ib. 468. ® Dennis v. Ilemmingway, ib. 387. 8 Bailey v. Murpliy, Walk. Ch. 305. (a) Under the statute (2 Comp. mortgagor will be given in the fore- Laws, § 4014), forbidding possessory closure suit. Michigan v. Brown, 11 actions against the mortgagor in pos- Midi. 205. session, a prior mortgagee, who, dur- Tim right of foreclosure by ailver- ing a foreclosure suit of a subsequent tiscmcnt being strictly statutory, it is mortgage, obtained possession from the necessary to execute and deposit a mortgagor, cannot retain possession deed, or an affidavit of the facts of after a sale on that foreclosure. Crip- the sale, with the register of deeds, pen V. Morrison, 13 Mich. 23. within one year from the sale, in compli- Where the mortgage debt is barred ance with the Comp. Laws, § 5185. at law, no personal decree against the Doyle v. Howard, 16 Mich. 261. 60 THE LAW OF MORTGAGES. [CH. XXVII. a sale is ordered, like that on other executions. If the prop- erty proves insufficient, a new execution issues, on which other property may be taken. The officer gives a certificate, which is acknowledged and recorded. Before a sale takes place, the property may be redeemed.^ Where real property and horses had been mortgaged, and the real estate sold under a prior lien, and the horses had died in possession of the mortgagor ; on a petition to foreclose, it was held, that the Court of Chancery had power to render judgment in personam against the mort- gagor for the debt and interest, and issue execution there- for.^ § 50. In Illinois, the remedy oi scire facias maybe had upon a mortgage. A statute provided, that, if the debt is payable by instalments, the last must be due. (a) The land is sold, and subject to the same right of redemption as upon execu- tion.^ The sci7-e facias is a proceeding in rem ; by process and declaration, and open to demurrer.* § 51. A statute provided, that the Court might give judg- ment for the amount due, and also for a sale to satisfy the judgment. In a scire facias^ the Court gave judgment for the 1 Ark. Eev. Stat. 580. See Belingall v. Gear, 3 Scam. 575 ; 2 Price V. The State, &c., li Ark. Coates v. Woodworth, 13 111. 654 ; 50. Waldo V. Williams, 2 Scam. 470. 3 111. Rev. L. 376 ; Stat. 1841, 171. ^ Fadden v. Fortier, 20 111. 509. (a) A late case decides, that inter- premises described in the mortgage, est falling due yearly, on a note se- Otherwise, if the foreclosure be by bill cured by mortgage, is an instalment, in chancery. Russell v. Brown, 41 111. and the mortgage may be foreclosed to 183. enforce it. Morgenstern v. Klees, 30 A mortgage having been given to HI. 422. secure several notes falling due at dif- A mortgage made to secure claims ferent dates, the mortgagee filed a bill on which the mortgagor is primarily to foreclose for non-payment of a por- and secondarily liable may be fore- tion of them then due. The Court de- closed by scire facias, and judgment creed, that the premises should be sold will be rendered for the amount actu- to satisfy the notes then found due, and ally due. Where the damages rest in that the others should constitute a lien computation, it is proper for the Court on the premises. The mortgagee hav- to direct them to be computed. The ing become the purchaser; held, the mortgage is treated as a record, and notes not yet due were discharged, he the Court must follow it. The Court becoming the mortgagor as to them. has no power to change the description, Mines v. Moore, 41 111. 273. but must give judgment as it finds the CH. XXVII.] STATUTORY FORECLOSURE. 61 sum due, with directions " that a special execution issue tlierc- for, according to the statute in such case made and provided." Held, the judgment was erroneous, the scire facias upon mort- gage being a proceeding in rem ; and the proper judgment being, according to the statute, to sell the premises.^ § 62. In tliis State, the remedy may be either by scire facias or in chancery, (a) But a judgment in one will bar the other.'^ The statutory scire facias aj)i)lies only to mortgages for the payment of money ; not for tlic delivery of specific articles, or the performance of other acts.*^ § 53. The statutes, providing for a sale of the mortgaged premises on a bill to foreclose, only where they will sell for two-thirds of their appraised value, and for a right to redeem, apply to mortgages made before their enactment ; but they do not affect the form of the decree, but only the mode of exe- cuting it.* § 54. Under these statutes, a purchaser at a commissioner's sale is not entitled to a deed, until tlie time of redemption has expired.^ § 55. A sale on scire facias passes all the interest which the mortgagor had at the date of the mortgage. He or those claiming under Uim may redeem, as in other sales upon exe- cution.'^ § 56. A mortgagee may at the same time maintain an ac- 1 Marshal v. Maury, 1 Scam. 231. * Dclaliay v. McConnel, 4 Scam. •^ State Bank v. Wilson, 4 Gilm. 15G. 57. 5 Ibid. 3 M'Cumber v. Gilman, 13 111. 542. 6 State Bank v. Wilson, 4 Gilm. 57. {(i) If an estate mortgaged is claimed gage upon the premises. They then as a liomestead, or greatly exceeds in partitioned, each agreeing to provide value the amount for wiiich it was in- for a specified proportion of tlie pur- cumbered, a strict foreclosure sliould chase-money. C. paid his part, and not be allowed ; unless tlie homestead procureil a release of the premises set right lias been waived, tiie sale should off to iiim. Held, it was proper for the be made subject to the right. Young mortgagee, in foreclosing, to take a V. Graff, 28 111. 20. decree against S. alone, for the balance Wiiere tlie mortgagor is insolvent, due. Ibid, and the premises are not worth the A decree, in a foreclosure suit, amount due upon the mortgage, a should not be entered against tiie pur- strict foreclosure may be decreed. Ste- ciiaser of mortgaged premises, whether phens V. Biclinell, 27 111. 444. with or without notice; but should di- C. and S. purchased land, giving rect a sale and distribution of tlic pro- theix joint notes, secured by a mort- ceeds. Wiukehnan v. Kiser, 27 111. 21. 62 THE LAW OF MORTGAGES. [CH. XXVII. tioii upon his bond, an ejectment for the land, and a bill to foreclose.^ § 57. In an action of trespass, where the plaintiff deduced title to the premises by virtue of a sale under a scire facias to foreclose a mortgage, it was held, that the sheriff's return to the scire facias^ that he made known to the mortgagor, by honest and lawful men, &c., as he was within commanded, was sufficient to authorize judgment on the scire facias."^ Also, that, if the scire facias was sued out before the mortgage debt became due, that fact would have been ground for abating the suit or for reversal of the judgment, but could not be in- quired into collaterally. And so of other defects in the regu- larity of the proceedings. As, that the judgment does not direct a special' execution for the sale of the premises.'^ But the return of a sheriff to a scire facias for foreclosure, as fol- lows : " Executed this 20th day of April, 1839, by reading. M. H., sheriff;" was held not to authorize a judgment by default. The Court say (p. 576) : " The sheriff is to " make known " to the mortgagor the object of the proceeding, by reading to him the scire facias. Before a court is authorized to render a judgment by default, it must appear clearly and affirmatively, by the return of the officer charged by law with the service of the process, that the defendant has been regularly served. The return should show the time and mode of the service, and on whom it was made. The return states the time and manner of the service, but omits to state on whom it was made."^ § 58. A scire facias to foreclose a mortgage is considered both as a process and declaration ; and the proper course to take advantage of informalities is by demurrer.^ It is a pro- cess in rem not m personam. Want or failure of consideration is not a good plea, nor can a set-off be relied on. If the last instalment is due, the only defences are, that the mortgage was never a valid lien, or that it has been discharged or re- leased. ^ (a) • 1 Delahay v. Clement, 8 Scam. 203. * Belingall v. Gear, 3 Scam. 575. - Rockwell V. Jones, 21 111. 279. ^ Marshal v. Maury, 1 Scam. 231. 3 Ibid. « Woodbury v. Manlove, 14 111. 213. (a) In case of a recorded mortgage, there never was a valid lien, or that it no defence is admissible, except that has been satisfied or discharged; the CH. XXVII.] STATUTORY FORECLOSURE. G3 § 59. Wlicre a decree of foreclosure is rendered, the contract ceases, being merged in the decree, and the latter is controlled, not by the contract, but Ijy the statute, which gives six per cent interest.^ § 60. Upon the principle that a court of chancery, having obtained jurisdiction, will retain it for the jjurpose of clTecting complete justice between the parties ; such court may, npon a bill of foreclosure, decree a sale of the premises, and thus pass a title to the purchaser ; and it will put him in possession, without driving him to an action of ejectment.^ § 61. Wliere tlie decree of foreclosure directs the mortgagor or party in possession to surrender it to the purchaser, the Court, upon an affidavit of service of such order, with a demand and refusal of possession, will issue a writ of execution of the order to put the purchaser in possession. But where the decree contains no such order, the Court, on motion, will pass it, and upon like service and demand will, on motion, and with- out notice, order an injunction against the party to deliver pos- session, and, upon an affidavit of service, and refusal to deliver possession, a writ of assistance to the sheriff, to put the pur- chaser in possession, issues of course, on motion, and without notice.^ § 62. But it IS erroneous to award a writ of habere facias possessionem, where the decree contained no order for delivery of possession.* § 63. In decreeing a foreclosure, it is the duty of the Court to ascertain the amount of principal and interest due at tiie time of decree, cither by reference to a Master, or by a com- putation of the Court, and to order payment of such amount." § 64. Only such sales are embraced by the statute allowing redemptions upon sale of mortgaged premises, as are made under decrees and judgments ; such statute has no application to a trust deed.'^(a) • 1 AUlrich v. Shai-p, 3 Scam. 261. •• Bloom v. Van Kenssclaor, 15 III. 2 Ibid. 8 Ibid. . * Ibid. 5 Ibid. 603. proceeding is not in personam, on the the mortgagor's property has l)een as- debt, but is in rem, on tlie record, signed in bankruptcy in anotlicr State. White V. Watkins, 23 III. 480. Chickering v. Failos, 26 111. 507. The right to a scire facias is not («) A bill to redeem lands foreclosed, taken away or lessened by the fact that by one holding a certificate of purchase 64 THE LAW OF MORTGAGES. [CH. XXVII. § 65. In Indiana,^ the mortgagee files a bill according to the course of the common law, upon which the Court may render ayi equitable decree, and order a sale of the land at auction. The pnrchaser shall take the land free from incumbrances, and not subject to redemption, and, iii all sales on execution, tho surplus proceeds shall be paid over to the debtor. But the same stat- ute further provides,'-^ that no sale of property on execution, by virtue of section 25, shall create any further term or estate in vendees, mortgagees, or creditors, to whom it is sold or deliv- ered, that the estate was mortgaged for.^ § Q6. A statute of 1824 (since repealed), provided, that, if the holder of a bond and mortgage elected to proceed first upon the mortgage, he was thereby debarred from any other remedy. But in Youse v. McCreary ^ it was held, that this act did not prevent such a holder from proceeding first upon his bond, selling the mortgaged premises on execution, and thus electing to abandon the mortgage, and giving the purchaser a clear title to the property. So in Markle v. Rapp ^ it was held, that one holding a bond and mortgage might proceed first by an action on the bond, and subject all the debtor's property to his judgment, without abandoning his lien on tlie mortgaged premises, unless he took them on execution. § 67. Debt on a promissory note. Plea, that the defendant had mortgaged land as security ; that the plaintiffs had ob- tained a decree of foreclosure and sale ; and that the defend- ant had sued out a writ of error to the decree, which was still pending. On demurrer, held, the plea was bad.^ § 68. By the Statute of 1831, where a mortgage debt was payable by instalments, a bill of foreclosure would not lie till the day of payment of the last instalment was past." (a) 1 Ind. Rev. L. 244, § 25. Doyle, 8 Blackf.;,800 ; Hubbard v. Chap- 2 Ibid. 245. pel, 14 Ind. 601. 3 See*^laughter r.^Foust, 4 Blackf. 4 2 Blackf. 245. 381 ; Shaw v. Hoadley, 8 Blackf. 165 ; 5 ibid. 268. Grimes v. Doe, ib. 371 ; Morgan v. ^ Brown v. Wernwag, 4 IJlackf. 1. Woodward, 1 Smith, 321 ; Hough v. t Hough v. Doyle, 8 Blackf. 300. under an execution sale, and who was (o) In a suit for foreclosure, com- not a party to the foreclosure suit, need menced when the first only of several not be brought in the court in which mortgage notes had fallen due, judg- the foreclosure was ordered. Grob v. ment for the sale of the entire mort- • Cushmau, 45 111. 119. gaged premises is erroneous, unless it CH. XXVII.] STATUTORY FORECLOSURE. 65 § 69. The interest of a holder of a certificate of canal lands is the suhject of mortgage ; and to a bill to foreclose such mortgage, the canal commissioners need not be made parties ; and a decree for the complainant need not direct that the cer- tificate be delivered to him.' § 70. It has been formerly held, that a bill for foreclosure must state whether any and what proceedings at law have been commenced to recover the dcbt.^ But under the revision of the Code of 1852, such averment need not be inserted in a complaint to foreclose ; if there have been any proceedings, they are to be set up in defence.^ § 71. Upon foreclosure, the statute authorizes a sale of the rents and profits, and the sheriff must offer them for sale. But, in the advertisement, he need not state that the rents and profits would be first offered.* § 72. A sale upon foreclosure by a commissioner cannot be attacked collaterally.^'' § 73. The decree must set forth that proceedings had been taken at law to recover the debt.*' § 74. In Ohio, for the purpose of foreclosure, the land is appraised as for sale on execution, and, if two-thirds of the val- uation exceed the debt and interest, sold at auction, and the surplus proceeds paid over to the mortgagor. If not, the abso- lute title is transferred to the mortgagee, with no right of re- demption. In the latter case, he may still recover the balance of his debt.'' The proceedings in chancery are said to be in rem? A bill in equity to foreclose may be sustained, as well as the statutory scire facias.^ § 75. In the same State, it is said, the mortgagee may have 1 Miller V. Tipton, 6 Blackf. 238. « Edwards v. IIourIi, 5 Ind. 149. 2 McMellen v. Furnass, 1 Cart. 7 Walk. 303. See lleitilnvay.i;. Pen- 160. dleton, 15 Ohio, 73o ; 1 Ilani. 235; 8 Newton v. Newton, 12 Ind. 527. Iliggins v. West, 5 Ham. 555. < Rrownfield i*. Weicht, 'J Ind. 394. •* Frische v. Kramer, IG Ohio, 141. 5 Wilkins v. Do Tauw, 10 Ind. 159. 9 1 Ham. 235. appear by the record that the Court made for the notes not due. Cubbcrly inquired whether tlie land could be v. Wine, 13 Ind. 353 ; Wainscott v. sbld in parcels, and that provision was Silvers, ib. 497. VOL. II. 6 66 TkE LAW OF MORTGAGES. [CH. XXVII. a decree of foreclosure, where the debt equals Iwo-thirds of the value of the land ; and he may demand a sale.^ (a) § 1G. A purchaser from the mortgagor, after the mortgage, cannot redeem against a purchaser at a judicial sale under the mortgage. 2 § 77. If an equitable interest in lands be mortgaged, the lands afterwards sold by order of Court, and part of the pro- ceeds paid to a third party, whose claim is prior to that of the mortgagee, the latter has a lien for his debt on the remainder." § 78. A purchaser at sheriff's sale, under an order for the sale of mortgaged premises, acquires the mortgagee's interest, and is subrogated to his rights in the land.^ § 79. After condition broken, a scire facias on a mortgage, in 1808, might legally issue against the administratrix.^ § 80. After judgment by scire facias, the lands must be sold according to the law in force when the judgment was obtained, not when the mortgage was executed.^ § 81. A- judgment by scire facias on mortgage, in 1808, or- dered " that the plaintiffs recover their debt and damages, and have execution therefor," not specifying the amount of the judg- ment or the svim for which execution should issue. Held, such judgment was reducible to certainty, and valid, when collater- ally called in question.'^ (6) § 82. In Missouri, where the debt exceeds fifty dollars, the mortgagee may file a petition against the mortgagor and the tenant, to which any person interested may be a party. Judg- ment is rendered for the debt, &c., and an order passed for a sale of the property. If this is insufficient, execution may 1 4 Kent, 181, n. 5 Heighway v. Pendleton, 15 Ohio, 2 Lytle V. Reed, Wright, 248. 735. 3 Ives V. Commissioner, &c., ib. 626. 6 ibid. * Frische v. Kramer, IG Ohio, 125. ^ Ibid. (a) Wliere the mortgage only waives shall in all cases be ordered. When an appraisement and the note does not, the land is situated in two or more a valid foreclosure may be made with- counties, the sheriff of each county out appraisement, so far, at least, as the shall be ordered to make sale of the mortgaged premises are concerned, lands in his county. Laws of Ohio, Harris v. Makepeace, 13 Ind. 560. 1859, p. 84. ^. (b) In Ohio, by a late statute, a sale !'y' CH. XXVII.] STATUTORY FORECLOSURE. 67 issue against other property. If payment is made to tlic oflicer, he gives a certificate, which is recorded.^ § 83. If a mortgagee proceeds under the statute, and the whole land is sold in satisfaction of part of the debt, the rest not being due ; he cannot afterwards proceed against the same lands in the hands of a purchaser, for payment of the balance.^ § 84. Proceedings to foreclose, under the statute, are at common law, and arc not governed by rules in chancery.*^ Hence, though it does not appear that process was seaved on the mortgagor, yet, if he appear by attorney, and enter his plea, on which issue is taken and tried, the want of service cannot be objected to; and if judgment is rendered against the mortgagor, and the mortgagee purchases at the sale, he ac- quires a valid title.^ § 85. The statute gives the mortgagee, on failure of the mortgagor to pay, the right of recovering only his debt and damages.^ But a bill in equity may be sustained, for the bal- ance of the purchase-money due to the mortgagee, after sale of the mortgaged premises under a decree.^ § 86. Where a judgment, in proceedings to foreclose, awards a general execution against lands and goods, it is decisive as to the question of the proceeding being under the statute and not in equity.'^ § 87. A mortgage does not merge in a statutory judgment of foreclosure.^ § 88. In Kentucky, it is said, " Here the mortgagee has, without the mortgagor's concurrence, three general remedies : 1st. To take possession of the mortgaged property, and apply the profits to the extinguishment of his debt ; 2d. To sue in a court of common law, and enforce his judgment either by exe- cution, or by filing a bill and obtaining a decree for subjecting the mortgaged estate by sale to the satisfaction of his judgment; and, 3d. By filing his bill in the first instance for a foreclosure 1 Misso. Stat. 409, 410. Sec Ayres ^ Mullanphy v. Simpson, 3 Mis. V. Sliannon, 5 Mis. 282. 492. 2 Buford V. Smitli, 7 Mis. 489. 6 Scott v. Jackson, 2 Mis. 104. 3 Carr v. Ilolbrook, 1 Mis. 241. ^ Riley v. McCord, 24 Mis. 265. * McNair v. Biddle, 8 IMis. 257. » Ibid. 21 Mis. 285. 68 THE LAW OF MORTGAGES. [CH. XXVII. of the equity of redemption and a sale of the mortgaged property, or so much as shall be necessary." ^ § 89, The Circuit Court of any county, in which part of the mortgaged land lies, has jurisdiction of a bill for sale of the land.2 § 89 a. In Iowa, foreclosure is obtained by civil action in the District Court. If any thing be found due, the Court shall render judgment therefor, and direct the property, or so much as is necessary, to be sold, to satisfy the amount due, with in- terest and costs. A special execittion shall issue accordingly. If the property does not sell for sufficient to satisfy the execu- tion, a general execution may be issued against the mortgagor, unless the parties have stipulated otlierwise. If separate suits are brought on the bond or note and on the mortgage, the plaintiff must elect which to prosecute. The other will be dis- continued at his cost. When a judgment is obtained in an action on the bond, the property mortgaged may be sold on the execution, and the judgment shall be a lien thereon from the date of the recording of the mortgage. The mortgagor, or any other person having a lien on the mortgaged premises, or any part thereof, may redeem the same after sale, within the same time and on the same terms as are provided in chapter 125, in cases of real estate sold on ordinary or general execu- tion. At any time prior to the sale made in either of the above modes, a person having a lien on the property, which is junior to the mortgage, may have an assignment of all the interest of the mortgagee, by paying him the amount secured, with in- terest and costs, together with the amount of any other liens of the same holder which are paramount to his. He may then proceed with the foreclosure, or discontinue it at his option. If there is an overplus remaining after satisfying the mortgage and costs, and if there are no other liens upon the property, such surplus shall be paid to the mortgagor. If there are any other liens on the property sold, or other payments secured by the same mortgage, they shall be paid off in their order. And if the money secured by any such lien is not yet due, a suit- 1 Per Robertson, C. J., Caufman v. Sayre, 2 B. Mon. 207. 2 Owings V. Beall, 3 Litt. 103. CH. XXVII.] STATUTORY FORECLOSURE. 69 able rebate of interest must be made by the holder thereof, or Ins lieu ou such proj)crty will l»e pustponed to those of a junior date; and if there are none such, the balance will be paid to the mortgagor. As far as practicable, the property sold uuist be only suflicient to satisfy the mortgage foreclosed in cither of the methods aforesaid.^ § 80^. Where a petition to foreclose asks a judgment on the note and a foreclosure, there is no union of law and equity in the proceeding, and the judgment prayed for is authorized by section 2084 of the Code.^ § 89 c. On a proceeding to foreclose or sell, execution nuist issue forthwith upon the judgment. The Court cannot order it to be stayed.^ § 89 d. Where, in a proceeding to foreclose, under the Code, ch. 118, judgment was entered for the amount found due, order- ing a foreclosure, and awarding a special execution against the property ; it was held that the judgment did not cut off the right of the defendant to redeem before the sale under the special execution, and followed substantially the provisions of the Code.* § 89 c. Where the maker of the note and the mortgagor arc not the same person, under the Code, § 2085, in the absence of special agreement, the mortgagor is liable for the debt se- cured, and, if the land mortgaged will not suffice, a general execution may issue against him.'^ § 89/. In such case, the non-joinder of the promisor in a suit to foreclose is no ground of demurrer, even if it is a defect.*^ § 89 r/. The cause of action begins upon an entry for fore- closure, followed by possession." (a) 1 Iowa Rev. Sts. 1860, p. 65. 5 Deland v. Mershon, 7 Clarke, 70. ■i Corley v. Ilobart, 8 Clarke, 358. 6 ibid. ^ Carroll v. Redilington, 7 Clarke, ^ Montgomery i-. Cliadwick, 7 386. Clarke, 114. * Duncan i-. Ilobart, 8 Clarke, 337. (u) Suits to foreclose mortgages, or A mortgagee may obtain a decree to compel paj'ment under a title-bond for foreclosure and sale in a court of or else foreclosure, should be brought chancery, not a strict foreclosure. The in equity. Scott v. Simeral, 9 Iowa, Code contemplates the taking of an 388. account, and the ascertainment and 70 THE LAW OP MORTGAGES. [CH. XXVII. § 90. In Wisconsin, upon a bill for foreclosure, a sale is ordered, with a decree against the mortgagor to pay the bal- ance of the debt. After the filing of a bill, no suit at law can be brought for the debt, unless authorized by the Court of Chancery. If any other party is liable for the debt, he may be made party to the bill, and a decree rendered against him. The bill must set forth whether there have been any proceed- ings at law, and any payment on the mortgage. If a judgment has been recovered at law, there shall be no further proceed- ings, except upon the officer's return on the execution. The sheriff sells the land in his county ; and his deed passes the dates of the various liens. Kramer v. Rebnian, 9 Iowa, 114; Collier v. Col- lins, lb. 126. A mortgagee, after judgment at law on his debt, may foreclose if there are other incumbrancers or parties in inter- est whose rights are to be adjusted. Wahl V. Phillips, 12 Iowa, 81. In case of a mortgage to secure a note bearing interest, i^ayable annually, the mortgagee may proceed upon the note for non-payment of interest, or by foreclosure for a sale of so much of the premises as would pay the interest and costs. The Code, §§ 2088-2091, favors the latter procedure. Bahr v. Arndt, 9 Iowa, 39. The service of notice by publica- tion, in proceedings to foreclose, should be made in accordance with ch. 240, § 1, subd. 4, of the Act of 1856. Rob- ertson V. Young, 10 Iowa, 291. Where the original notice was re- turned " not found," but it was not shown by affidavit or otherwise that the respondents could not be found within tlie State, nor that there was a good cause of action ; held, the service was insufficient to warrant an order for publication of notice. Clark v. Huff, 12 Iowa, 606. Where a foreclosure suit was com- menced in January, 1860, and a fore- closure decreed in February, being about two months before the act, giv- ing the defendant nine months after service in which to answer, took eflfect, and a junior incumbrancer, brought in on ancillary proceedings, was not served with notice until after the act took effect ; held, he was not entitled to the nine mon'ths. Watts v. White, 12 Iowa, 330. The act extends the time for answering nine months after the first service, but in no event beyond Jan- uary 1, 1861. Sweet v. Porter, 12 Iowa, 387. Usury may be set up in a foreclo- sure suit, without averring a tender of the i^rincipal sum admitted to be due. Cox V. Douglass, 12 Iowa, 185. If all the requirements of the Code, 1851, ch. 118, giving a summary remedy for foreclosure, cannot be complied with, the mortgagee must proceed in a District Court ; as, where a legal notice could not be given. Dutton v. Cotton, 10 Iowa, 408. Proceedings for foreclosure and ex- ecution against the mortgagor may be brought either in the county where the mortgagor resides, or in that where the property is situated. But only in the latter, if the object is merely a fore- closure by sale. A suit should not be dismissed because brought in the wrong county ; but the venue should be changed, under Code, § 1702. Cole v. Conner, 10 Iowa, 299. CH. XXVII.] STATUTORY FORECLOSURE. 71 same title, as would be acquired by a foreclosure, or by a deed from mortgagee and mortgagor, and binds all parties. From the proceeds the debt is paid, the surplus brought into court, and distributed to parties entitled to it. After tlircc months, the money shall Ijc placed at interest. If otber instalments become due after commencement of suit, tiiey may be brought into the decree. The defendant may bring into court the sum due, with costs, at any time before sale, and the bill be dis- missed. If this is done after the decree, the proceedings will be stayed, but the decree will remain in force, to be tiie founda- tion of a subsequent petition. The land shall be sold in sepa- rate parcels, if the interest of the parties requires it.' (a) § 91. By later statutes, in all proceedings at law hereafter commenced under that portion of cliapter 84 of the Revised Statutes, entitled, " of the powers and proceedings of courts in chancery on l}ills for the foreclosure or satisfaction of mortgages," the defendant shall have six months to answer, after the service of summons or publication of notice. When- ever judgment shall be entered, or an order made for the sale of mortgaged premises, there shall be six months' notice of such sale, as hereinafter provided ; and in all cases where, before tlie passage of this act, judgment has been rendered, in an action to foreclose, or an order or decree made for a sale of the premises, they shall be sold only upon six months' notice, which notice siiall be given in the manner provided in this act for giving notices of the sale of mortgaged premises. It shall be the duty of the officer appointed to make sale of the premises, immediately after receiving a copy of the order, to publish or cause to be published notice of the sale (unless 1 Wiscon. Rev. Stats. 423-425. See Wiscon. L. 1859, p. 240; 1857, p. 19. (a) A tender of tlie amount of the An appeal undertaking by tlie mort- decrce made before the sale will stop gagor in a foreclosure suit, which does or avoid it, but it must be a tender, not expressly provide, with sufficient not a mere offer. Babcock i\ Perry, 8 security, that there shall be no waste, Wis. 277. and that the appellant shall pay for the The Court will not set aside a fore- use of the property during the appeal if closure sale, and thereby do practical judgment should be against him, will injustice to the other party, on account not operate to stay proceedings on the of the laches and gross negligence of judgment for foreclosure. Pierce «;. the defendant. Ibid. Kneeland, 7 Wis. 224. 72 THE LAW OF MORTGAGES. [CH. XXVII. otherwise ordered by the Court), describing the premises as now required by law, in some newspaper of general circulation in tlie county in which such' premises are situated, at least once in each month, for six months ; and if there be no news- paper in the county, then in an adjoining county ; otherwise, the sale shall be invalid.^ § 92. In all sales of mortgaged premises under any judg- ment of foreclosure, it shall be the duty of the officer, within ten days after the sale, to execute to the purchaser a certifi- cate of sale in writing under seal, setting forth each tract, the sum paid therefor, and the time when the purchaser shall be entitled to a deed, unless the same shall be redeemed as hereinafter provided ; and such officer shall also within ten days file, in the office where the mortgage was recTorded, a duplicate of such certificate signed by him, and such certifi- cate, or a copy properly certified by the register, shall be evi- dence of the facts. The mortgagor or his heirs, executors, administrators, or assigns, at any time within one year after such sale, may redeem such lands, or any distinct tract or par- cel thereof, separately sold, by paying the price to the pur- chaser, his executors, &c., or the officer, or his successor in office, with interest at the rate of ten per cent per annum, and upon such payment the officer shall execute a certificate under seal of such redemption, which shall discharge the mortgage, and all the title acquired by the purchaser. The mortgagor or his assigns may retain possession of the prem- ises, in trust for the mortgagee or purchaser, until the title shall absolutely vest in the purchaser. If redeemed, the offi- cer or his successor shall execute to the purchaser deeds of the land, which shall vest in the purchaser the same estate as if executed by the mortgagor and mortgagee, and shall consti- tute an entire bar against all parties to the action and their heirs respectively, and all persons claiming under them. A subsequent rriortgagee or other incumbrancer may redeem or satisfy the prior mortgage, and shall thereby acquire all the rights of the prior mortgagee. Every decree of foreclosure shall require the premises to be sold, and the equity of redemp- 1 Wis. L. 1858, p. 134. CII. XXVII.] STATUTORY FORECLOSURE. 73 tioii shall not be foreclosed without such sale, except by con- sent of parties in open court. Chapter 113 of the General Laws of 1858 shall not apply to the foreclosure of mortgages executed after the passage of this act.^t^a) 1 Laws of Wisconsin, 1859, p. 217. (a) A judgment in an action for foreclosure of a mortgage executed after cli. 195, Laws of 1850, went into operation, not giving the riglit of re- demption within one year from the sale, is erroneous, and will be reversed, where no steps liave been taken to execute it. Van Nostrand v. Mans- field, 16 Wis. 224. A judgment to foreclose, in case of an oral defeasance, should provide, as in other cases, for a redemption with- in one year. Briggs v. Seymour, 17 Wis. 255. For the purpose of an appeal, an order confirming a sale in a foreclosure suit, and an order for a judgment for deficiency, may be considered as one, though entered separately in fact. Cord V. Ilirsch, 17 Wis. 403. It is no objection to a judgment for deficiency, that the costs were greatly increased by repeated postponements, if not caused by the fault of the plain- tiff, but by an injunction. Ibid. Under Rev. Sts. (acts 1830, §§ 37- 40), a bill for foreclosure or sale will not lie after adverse possession for more than ten years. Cleveland v. Reed, 24 How. 284. Foreclosure and sale are necessary to pass the fee of mortgaged premises to the mortgagee. Russell i'. Ely, 2 Black, 575. The mortgagor may pass the legal title 1)3' a deed made between the date of his bond and foreclosure. Ibid. A mortgagee in lawful possession msiy hold it until his debt is paid. Ibid. But not where possession is obtained through collusion with the mortgagor's tenant. Ibid. A demurrer, raising the point, that a judgment for foreclosure, and a per- sonal judgment for the balance, cannot be rendered in the same action, is not frivolous. Walton v. Goodnow, 13 Wis. 661. Service on one defendant makes a suit " pending " so as to be 1)cyond the operation of the " Mortgage Stay Law," enacted after such service. Diedrichs V. Stronach, Wis. 548. The defendant in a foreclosure action, against whom no personal claim is made, under Rev. Sts. ch. 124, § 5, and Laws of 1850, ch. 220, § 1, being served with a summons and notice of no personal claim within ninety days afterwards, may make a demand in writing for a copy of the complaint, and answer within twenty days after receiving it. Morley v. Guild, 13 Wis. 576. If the answers in a foreclosure suit are disregarded in the order of refer- ence, which directs merely the ascer- tainment of the amount due, there being no trijil of the issues raised by such answers ; it is error, and the defendant is entitled to notice of the time and place of hearing of the issues. Bassett V. McDonel, 13 Wis. 444. In an action to set aside an entry of satisfaction, as improperly made by the mortgagee, in fraud of his assignee, to whom the mortgage note had been transferred as security for goods sold, the Court will not examine into the amount due to such assignee. Gordon V. Mulhare, 13 Wis. 22. Section 87 of the school-land laws requires the commissioners to offer the mortgaged property for sale at 74 THE LAW OF MORTGAGES. [CH. XXVII. § 93. Ill Minnesota, («) where a mortgage contains a power of sale, there may be a foreclosure by means of a public adver- tisement, after such a default as the power refers to. But not where a suit has been brought for the debt, unless it lias been discontinued, or an execution returned unsatisfied in whole or in part ; nor unless the mortgage and all assignments of it have been recorded. Where a mortgage debt is payable by instalments, each, after the first, shall be considered as a sep- arate mortgage ; and a foreclosure may be had, as if there were a separate mortgage for each instalment, and a redemption by the mortgaofor shall have the like effect as if the sale for such auction. Section 88 provides, that, if no one will bid the amount due, the commissioners shall bid, and, as soon thereafter as may be, shall sell for cash. Section 89 provides, that the sale shall not be for less than the amount due, and any overplus shall be paid to the mortgagor.- Held, the bid- ding by the commissioners, the amount of which is in their discretion, imported an actual sale to the State, cutting off the equity of redemption, and not a mere withdrawal from sale. Krebs v. Dodge, 9 Wis. 1. A mortgagee, who has gone into peaceable possession after a default, cannot be ejected by the mortgagor while the mortgage remains unsatis- fied ; and one who peaceably goes into and retains possession, under the direc- tion of the mortgagee, thereby becomes his tenant, either at will or from year to year, so that his possession is that of the mortgagee. Hennesy v. Farrell, 20 Wis. 42. The statute relating to mortgages does not run against a mortgagor, until the mortgagee takes open and actual possession ; and such possession, held for ten years, will bar the right of re- demption. Knowlton v. Walker, 13 Wis. 2G4. A bill for redemption may allege the mortgage to be usurious, and ask relief on that ground. Ibid. Under § 45, p. 287, of the Territorial Statutes of 1839, which provides that in a chancery suit the Court may order a non-resident defendant to appear, plead, &,c., " at a certain day therein to be named, not less than three nor more than six months from the date of such order," and subd. 10, § 1, p. 35, which provides, that in the construction of statutes the word " month " shall be construed to mean a calendar month, unless otherwise expressed ; an order in a foreclosure suit, which required the mortgagor to answer " within nine- ty days," did not confer any juris- diction over his person or property, and the proceedings in the suit were void as to him. Fladland v. Delaplaine, 19 Wis. 459. The Act of 1858, known as the Mortgage Stay Law, did not change the mode of commencing foreclosure suits, but gave six months to answer, until the expiration of which there could be no default, and also changed the time required for advertisement of the premises before sale. In an action commenced before repeal of this law, after six months from service of pro- cess, the plaintiff may have judgment against defendants who had been de- faulted. Beebe v. O'Brien, 10 Wis. 481. (a) See Donnelly v. Simonton, 7 Min. 167. CH. XXVII.] STATUTORY FORECLOSURE. 75 instalments had been made upon an independent prior mort- gage. Wlierc distinct parcels of land are included in one mortgage, they sliall be sold separately. And only enough shall be sold to pay the amount due. The mortgagee may purchase the land. Ui)on a sale for foreclosure, a certificate is first given ; and, unless the property is redeemed witliin a year, a deed. The mortgagor is not entitled to possession after the sale. The surplus proceeds of sale are paid to the mort- gagor, etc. A subsequent mortgagee may redeem. If the mortgagee himself ])urchases, no deed is necessary, but the affidavits of sale will be sufficient, and have the same eflcct as a conveyance by the mortgagee to a third person. A mort- gagee may file a bill in equity for foreclosure or satisfaction. A sale of the property will be ordered, but not within nine months after filing the bill. A decree may be had for pay- ment of the balance remaining due after a sale, and execution will issue therefor. After the filing of a bill, while it is pend- ing, and after a decree, there shall be no suit at law to recover the debt, unless expressly authorized by the Court. If a third person is liable for the debt, he may be made party to the bill, and a decree rendered against him to pay the debt. The bill must allege whether any proceedings have been commenced at law, and whether any part of the debt is paid. It does not lie, if a judgment at law has been recovered, unless an execution has been returned unsatisfied, and the return states that the party has no property except the land. A deed is made by a Master in Chancery, or other person appointed by the Court. A purcliaser takes the same title as the mortgagee would acquire upon foreclosure, or as if the mortgagee and mortgagor joined in conveying ; and they, and all parties to the suit, their heirs and those claiming under them, will be barred. In case of a suit for non-payment of an instalment, the defendant may stop it by bringing into Court the debt and cost. Other- wise, the case may be referred to a Master. If a part of the property will be sufficient to pay the debt, such part shall be sold, and the decree will remain as security for future instal- ments, to be enforced ujion a new petition. If deemed ex- pedient, the whole shall be sold, and the whole debt paid, with 76 THE LAW OF MORTGAGES. [CH. XXVII. a rebate of interest for what is not due ; or the money may be invested by the Court.^ (a) § 04. In California, on a decree of sale upon foreclosure, if the debt is not all due, only sufficient property is sold to pay the amount due ; and, as more of the debt accrues, the Court on motion may order more property to be sold. If the prop- erty cannot well be divided, the whole may be sold in the first instance and the entire debt paid. If the property is not sufficient to pay the debt, execution may issue for the bal- ance.2 (Z>) § 94 a. Actions for the foreclosure of mortgages must be tried in the county in which the subject of the action, or some part thereof, is situated.^ In this State, there is no technical foreclosure, though the decree be so expressed, but a sale of the property. As in case of the lien of other judgments, the purchaser's title relates to the date of the mortgage. Any surplus proceeds belong to the mortgagor, and for any defi- 1 Min. Rev. Stats. 484, 437, 469, 470. See Sts. 1858, ch. 61; Daniels v. Smith, 4 Min. 172. (a) Where foreclosure was begun by an administrator, who was removed the day before the sale, and a special administrator was appointed, who al- lowed the sale to proceed without objec- tion ; held, his assent must be presumed. Baldwin v. Allison, 4 Min. 25. The provisions in Comp. Sts. p. 644, § 5, concerning notices of foreclosure by advertisement, refer only to such as- signments as are the subject of con- tract, and are made by act of parties. Baldwin v. Allison, 4 Min. 25. A notice, signed " S. H. B., adm'r of the estate of R. A. B., the said mort- gagee deceased," was held sufficient. In case of sale after an insufficient and irregular advertisement for fore- closure ; held, the mortgagee might either apply to court to set aside the sale, or might hold the mortgagor per- sonally responsible for the injury suf- fered from the sale. Lowell v. North, 4 Min. 32. ■^ Cal. Dig. 200. 3 Vallejo V. Randall, 5 Cal. 461. In a foreclosure by advertisement, a . publication on August 3, and in each week following, up to and including September 14, the day of sale, was held sufficient. Worley v. Nay lor, 6 Min. 192. (6) A mortgagee may bring an ac- tion to foreclose his mortgage, payable in instalments, when the first falls due. Grattan v. Wiggins, 23 Cal. 16. The plaintiff had a decree on a mort- gage, by husband and wife, for sale of the premises, and execution against the husband's property for the deficiency. The husband having died ; held, the plaintiffs could still have the order of sale, but not the execution. A decree in rem is not within section 141 of the statute relating to the estates of de- cedents. Section 148, making sales void witliout an order of the Probate Court, applies only to sales by admin- istrators. Cowell V. Buckelew, 14 Cal. 640. CH. XXVII,] STATUTORY FORECLOSURE. 77 ciency the mortgagee has a general execution.^ Upon a sale of foreclosure, the sherilT does not give a deed nor possession of the land.'-^ § 04 ^^ Judgment may he rendered for the amount of the mortgage note, personally, as well as for a sale of the prop- erty.^ («) § 04 c. Practice Act, § 32, authorizing judgment against the joint property, where only some of the defendants have been served, has no ajjplication in the case of a foreclosure of a mortgage executed by more than one. Though they joined in the mortgage, the presumption is, that the land was held in common, not jointly.'' § 94 d. A writ of assistance is the appropriate remedy to place in possession the purchaser at a foreclosure sale, after he has obtained his deed." § 94 g. A preliminary order to admit the purchaser must .first be made either l)y the original decree or by a special order, that the default of the tenant may be properly estab- lished, and thereupon the writ may issue. ^ § 94 /. A mortgagee lost his right of entry, considered as a remedy, by section 2(30 of the Practice Act of 1851, although his mortgage was executed before the passage of that act." § 95. In Massachusetts, New Hampshire, Maine, and Rhode Island, the remedy of the mortgagee is by ejectment to recover the land. In all real actions upon mortgage, after breach of condition, the judgment shall or may be a conditional one, that if the mortgagor, &c., pay to the mortgagee, &c"., the sum 1 McMillan v. Richards, 9 Cal. 365. * Bowen v. May, 12 Cal. 348. See Enieric r. Toms, 6 Cal. 155 ; Nagle » Montgomery v. Tutt, 11 Cal. V. Macy, 9 Cal. 426. 190. 2 Harlan v. Smith, 6 Cal. 173. « Ibid. 8 Rollins V. Forbes, 10 Cal. 299 ; ^ Skinner t-. Buck, 29 Cal. 253. Rowe V. Table, &c., Co., ib. 441. (a) A personal judgment can be rcn- mortgagt?e, joined as a co-defendant, dered for the debt, but cannot be dock- should direct that the proceeds of sale, eted before the sale, or become a lien if any, after payment of the first mort- upon other property. Cormerais i'. gage, slmuld be paid on tlie second, and Genella, 22 Cal. 116. the balance to the mortgagors. Union, A decree of foreclosure, barring the &c. v. Murphy's, 22 Cal. 620. equity of redemption of a subsequent 78 THE LAW OP MORTGAGES. [CH. XXVII. adjudged due, witliiu two months, no writ of possession shall issue ; otherwise such writ shall issue. § 96. In Massachusetts, such judgment must be moved for by one of the parties ; in Rhode Island by tlve defendant ; and, in Massachusetts and ]\Iaine, cannot be claimed by a defendant who is not the mortgagor, and does not claim under him. In Vermont, judgment in such case is rendered in com- mon form, but the Court, on application of the defendant, may stay execution, and order, that, if he pay the amount due in time not exceeding one year, tlie judgment shall be vacated. Payment is to be made to the clerk, who shall give a certificate thereof, to be recorded, and also take a receipt from the plain- tiff. No redemption is allowed after a writ of possession. In Maine, unless the mortgage is set forth in the writ, the judg- ment will be absolute, if the defendant does not claim a right to redeem. 1 § 97. In a writ of entry founded upon a mortgage, if the declaration is general, a suggestion that it is on a mortgage, and that a conditional judgment be entered, may be filed in any stage of the proceedings, whether before or after verdict. But the defence of usury should be made separately from the suggestion or plea as to a conditional judgment.^ Where a mortgagee is in possession under an execution, and brings an action against a disseisor to try the title ; he may have an un- conditional judgment.^ § 98. With regard to the mode of trial of questions concern- ing mortgages, it is held that the Court may decide any ques- tion concerning payment of the mortgage debt, without the intervention of a jury.* § 99. But if, in a bill in equity, by a purchaser from the mort- gagor, the mortgagee claim under a deed from the mortgagor, alleged to be fraudulent, the Court will order a jury to try this question.^ § 100. In Massachusetts, the mortgagee, after condition 1 Mass. Rev. Sts. 634 (see also 2 Briggs v. Sholes, 14 N. H. 262. Mass. Gen. Stat.) ; N. H. L. 63; 1 3 Haven y. Adams, 4 Allen, 80. Smith's Stat. (Me.) 163, 164; Me. Rev. * Parsons v. Welles, 17 Mass. 427. Stat. 555 ; R. I. L. 210 ; 1 Verm. L. 84 ; 5 Pomeroy v. Winsliip, 12 Mass. Verm. Rev. Stat. 215 ; Rackleflf!;. Nor- 514. ton, 1 Appl. 274. CH. XXVII.] STATUTORY FORECLOSURE. 79 broken, may recover possession by action, or may enter oi)enly and peaceably, if not opposed by the occupant ; and a con- tinued peaceable possession for three years will foreclose the mortgage. In case of entry in pais, or witiiout a judgment, a memorandum or certificate thereof is made upon the deed, signed by the mortgagor or party claiming \inder him, and re- corded ; or else a certificate of two comi)ctcnt witnesses, to prove the entry, is made and sworn to and recorded ; and no entry is effectual for foreclosure, unless a certificate or a deposition in proof thereof is thus made and recorded.^ (a) If an entry is made before breach of condition, the three years, limited for redemption, will not begin to run till such breach, and written notice that possession is thenceforth to be held for condition broken or for foreclosure ; unless the mortgagee make a new entry or commence an action. The same certificate or deposi- tion, to prove such notice or new- entry, shall be made and recorded, as above provided in case of other entries.- (li} 1 Mass. Rev. Stat. G34. 2 Ibid. G35, G36. (a) An unrecorded certificate of an entry to foreclose, made before the Kev. Sts., in presence of two witnesses, is competent evidence of tlie foreclosure, if supported by the testimony of the witnesses, tliat after tiie entry certain papers were executed by the parties, and tliat their names upon the certifi- cate afe in their handwritings, and must have been written by tlieni, altliougli they have nq recollection what the pa- pers were, or that tliey signed any. Crittenden v. Rogers, 8 Gray, 452. An open and peaceable entry in 1827, in the presence of two witnesses, although no certificate was made there- of, if followed by actual and peaceable possession continued for three years, foreclosed a mortgage under St. 1785, ch. 22, § 2, and was binding upon the wife of the mortgagor, if she joined in the mortgage. Whitney i'. Guild, 11 Gray, 49(3. An entry conformable to the statute will foreclose the mortgage, after three years, although purposely made in se- cret. Ellis V. Drake, 8 Allen, Itil. (b) By a later statute (1852, 892), where a mortgagee has brouglit a suit for foreclosure or possession, the Court, or any justice thereof, in term-time or vacation, may in any county issue an injunction against waste, done or threatened by the mortgagor, or any person claiming under him, or by his permission. The statutory provisions relating to foreclosure are held applica- ble only to le(jal mortgages. Wyman i'. Babcock, 2 Curt. 386. In reckoning the three years allowed for redemption, the day of entry is excluded. Fuller r. Russell, Gray, 128. A conditional judgment may be rendered in an action to foreclose a mortgage which docs not convey an existing estiite of liome.ut still, in consideration of the nature of a mortgage, as mere security for a debt, and the paramount purpose of a suit in)on it, which is, to enforce payment of such debt ; an action to foreclose, though in form a real action, is not regarded as strictly such, 1 Per Eastman, J., Aiken v. Gale, 37 N. II. 510. — These are exceptional cases. 116 THE LAW OP MORTGAGES. [CH. XXX. nor subject to all the rules which govern real actions.^ (a) Thus it is said by the Court in Massachusetts : " The action of mortgagee against mortgagor, by the laws of this Common- wealth, is substantially a statute proceeding ; it is a remedy, at once furnished, regulated, and limited by statute." ^ (5) And in a later case : " Our special real action to foreclose a mortgage is a peculiar proceeding, resembling, in substance, perhaps, as much a bill in equity as a suit at law. Courts are fully authorized in this action to make any such. order or decree, and issue any such process, as justice and equity may require. Little aid, therefore, can bo drawn from the rules regulating other real actions." ^ So it is said in Kentucky (with more especial reference to a suit in equity) : " A mort- gage, being intended as a collateral security, and being, more- over, entitled to no other effect in equity, should not, as a mere matter of election by the mortgagee, be enforced by a court of equity, for any other purpose than that of paying 1 Penniman v. Hollis, 13 Mass. 430; '^ Per Sliaw, C. J., Weafse v. Pierce, Amidown v. Peck, 11 Met. 467 ; Price 21 Pick. 143. u. The State, &c., 14 Ark. 50 ; 37 N. II. ^ pgr Shaw, C. J., Peck v. Hapgood, 510. 10 Met. 173. (a) Tlie liypothecary action, in Louis- iana, is a real action, following the property wherever it may be found, and may be instituted before a court of ordinary jurisdiction. Boguille v. Faille, 1 La. An. 204. Equity acts only in personam, not in rem ; and, if a bill for foreclosure is filed in the State where the land lies, all parties being citizens of another State, jurisdiction can be acquired only by service of process. Grace v. Hunt, Cooke, 341. In Connecticut, a bill for foreclosure need not be brought in the county where the land lies, the title of the mortgagee not being in question. Broome v. Beers,- 6 Conn. 198. Such bill is held in Kentucky to be both personal and local ; and either the per- son of a necessary defendant, or the locality of the land, may give jurisdic- tion. Caufman v. Sayre, 2 B. Mon. 202. In Ohio, a proceeding for fore- closure, though in the nature of a pro- ceeding in rem, is still an adversary proceeding, in which the mortgagor's right is determined ; and he is entitled to his day in court. Moore v. Starks, 1 Ohio St. 369. In Missouri, a proceeding to fore- close under the statute is a proceeding at law, and is not governed by the rules of proceeding in equity. Riley v. McCord, 24 Mis. 265. In Texas, a mortgage being a mere security, the mortgagee cannot sustain an action of trespass to try title against the mortgagor. Duty v. Graham, 12 Tex. 427. (h) Actual entry, by a mortgagee or his assignee, is not necessary to sustain an action by the latter upon tlie mort- gage. Tuttle V. Brown, 14 Pick. 514. See Livingston ;;. Story, 11 Pet. 351. CH. XXX.] PUOCEEDINGS TO FORECLOSE. 117 the debt, or so niucli thereof as shall be due and unpaid at the date of the decree, nor to any greater extent than the default of the mortgagor, and the right of the mortgagee, as to the debt, which is the principal ; the mortgage, and the equities resulting therefrom being merely incidental." ^ § 3. In conformity with these distinctions, a plea to a writ of entry by the assignee of a mortgage, that tlie defendant was not tenant of the freehold, but that another person (nam- ing him) was tenant of the freehold, and the defendant only a tenant at will under him, was upon demurrer held bad.^ The Court say : ^ " An action for. possession by a mortgagee is not governed altogether upon tlie general i)rinciples applicable to real actions. It is wholly bottomed on our statutes. The right to the freehold is not decided in such action. Any per- son in possession of the mortgaged premises is liable to the action of the mortgagee." So, where tlie mortgagee brings an action upon the mortgage after an entry to foreclose ; such entry is no defence under the general issue, if it would be under any form of pleading.** So, in the case of Penniraan v. PTollis,^ where tlie question arose, whetlier a reversioner was lial)lc to an action for foreclosure, it is said: " From the pecu- liar nature of the relation between the mortgagor and mortga- gee, it would be no answer to an action brought by the mort- gagee to foreclose, that he, the mortgagor, was not tenant of t\\Q freehold. The deed of mortgage creates a contract respect- ing a debt, as well as a conveyance of the estate. It is a collateral security only ; and the means of coercing the debtor by a suit upon it, ought not to be trammelled by the nice, technical rules which govern real actions in general." Hence the action may be sustained, though the tenant is a mere re- versioner, (a) The particular tenant is not prejudiced by the 1 Per Kobertsoii, C. J., Caufman * Devens v. Bower, G Gray, 12G. V. Sayrc, 2 B. Moii. 205, 20G. s Per Parker, C. J., 13 Mass. 430. 2 Keith /•. Swan, II Mass. 216. See Colby v. Poor, 15 N. II. 198. 3 Ibid. 217. (a) Witli respect to the relative tenant for life to contribute to tlic re- rights of the reversioner, &c., and par- deniption ; the former paying one-third, ticular tenant of an estate mortgaged, the latter two-tiiirds; or, as was once it was formerly the rvile, that a re- held, in the proportion of two-fifths and inainder-nian, &c., could compel the three-fiftiis. But the present rule is, 118 THE LAW OP MORTGAGES. [CH. XXX. judgment in sucli action ; because, if sued for possession, lie can defend himself by setting forth his title. On the other hand, if a reversioner could not bo tlius sued, the mortgagee might be compelled to wait for the death of a tenant for life, before he could enforce his security. Though he cannot oust the particular tenant, it may be important to him to watch over the estate and prevent waste ; or to enter for forfeiture ; or to claim the rent, if any.^ So, where one of two joint owners of the equity of redemption takes an assignment of the mortgage ; he may maintain a writ of entry and recover con- ditional judgment against the other.^ So, in Walcutt v. Spen- cer,3 where the defendant, in a suit on mortgage, relied upon a lease from one to whom the demandant had himself mort- gaged before taking his own mortgage, and who had recovered a judgment; Jackson, J., says: " It is also very questionable whetlier this matter, if duly pleaded, would have availed the tenant in this action, which is founded upon our statute for foreclosing. If the party sued claims to hold the land by any title, independent of the supposed mortgage, the title may be tried as in a common writ of entry. But when the party sued has no title- but as mortgagor, or as assignee of the right of redemption, the action becomes, in effect, a bill in equity to foreclose. The object and effect of it is, to ascertain what sum is due on the mortgage, and to foreclose. So far as regards that question, it seems important to inquire what estate the defendant has in the premises ; at least, if he has the right of redemption which is sought to be foreclosed, he must be a proper party to the suit. Spencer, after the recovery against him by William Walcutt, still had the right to redeem as against both .of the mortgagees. A recovery by the demand- ant will not prejudice William Wallcutt ; but he may still hold the land in virtue of the mortgage to him, until redeemed." » 13 Mass. 429. '-i Aiken v. Gale, 37 N. PI. 501. 3 14 Mass. 411. that a tenant for life shall be required the profits, or by filing a bill of fore- only to keep clown the interest during closure, compel the tenant for life to his life ; but if he refuse to redeem, the come in and contribute, or surrender remainder-man may, by redeeming and the possession. Coote, G02. ejecting him, and taking possession of CH. XXX.] PROCEEDINGS TO FORECLOSE. 119 § 4. The same principle, with regard to the riglit of bringing an action for foreclosure against a party who might not bo liable to an ordinary real action, is recognized in the following case : The assignee of a mortgage having received rent from the tenant in possession, his administrator, upon his death, called on the tenant to attorn or surrender, but he denied the administrator's right, and refused to do it. The administra- tor then brought an action against him on the mortgage, with- out notice to the heirs or representatives of the mortgagor, who was also dead, recovered a conditional judgment, sued out an execution, entered and remained in possession three years. The heirs of the mortgagor bring a bill in equity to redeem. Held, the mortgage was legally foreclosed, and the bill could not be maintained. After the demand upon the tenant by the administrator, and his refusal to surrender pos- session, and denial of the administrator's right, his holding became adverse, and he might be treated as a disseisor for the purpose of bringing a suit against him. Moreover, to make a judgment upon a mortgage good against particular persons, it is not necessary that they, or their tenant or agent, should be summoned. It is sufficient to bring the suit against the tenant in possession. Otherwise, mortgagees would be put to great difficulty in foreclosing by means of a suit. Tlie security of a mortgage is a security in rem. The mortgagee looks to the land. If the mortgagor has been left in possession, the law yresumes that he remains in possession, or some person by his permission, or in privity with him, and that person is the tenant in possession. Besides, three years after possession taken are allowed for redem{)tion by any person interested, and any delay to exercise this right is at their own peril. ^ § 5. It has been since held, that under the Rev. Stats, ch. 107, § 8, a writ of entry to foreclose cannot be maintained against a tenant for years, who holds strictly that relation, makes no greater claim of title, interposes no obstacle to the enforcement of the mortgage title, created by his lessor, but is ready and willing at all times to yield up the possession to the mortgagee. But any person in possession, who denies the 1 Shelton v. Atkins, 22 Pick. 71. 120 THE LAW OF MORTGAGES. [CH. XXX. mortgagee's right, refuses to yield possession, and prevents him from taking peaceahle possession, may, at the election of the mortgagee, be deemed a disseisor, and treated as a tenant of the freehold by disseisin, and in such case be liable to this action.^ So it has been held, that the defendant in an action for foreclosure must be a tenant, not a mere servant or agent of another. In a real action upon a mortgage, it a[)peared that the mortgagors were blind, and the defendant, their father, lived on the land with them, cultivated and improved it, as the sole manager and efficient agent. Held, the defendant was not a tenant, and the action could not be maintained.^ Wilde, J., says : '^ " The plaintiff relics upon a distinction between an action on a mortgage, and a common writ of entry, on the authority of Keith v. Swan (11 Mass. R. 216), wherein it is said, that in an action on a mortgage, the right to the freehold is not decided, and that any person in possession of the mort- gaged premises is liable to the action of the mortgagee. But the defendant in this case was not in possession ; he was an agent only of the mortgagors, and the possession was in tiiem." And, if a mortgagor has parted with his title, and is not in possession, he may plead a disclaimer to a real action for fore- closure ; ajthough the mortgagee and the assignee of the mortgagor are tenants in common.* So it is held that non- tenure is a good plea in abatement to an action on a mort- gage.^ So, where land was mortgaged by the defendant to a. former guardian of the demandant, during his minority", in trust for the demandant ; held, in Massachusetts, the demand- ant could not maintain a writ of entry for the land, never hav- ing had the legal estate, and the tenant having a good title against every one but the mortgagee and his assigns.^ § 6, Tlie question, whether a suit for foreclosure could have been maintained against the parties defendants to that suit, docs not arise in a subsequent action by the mortgagee for acts of trespass upon the land, committed after he had re- ceived seisin upon execution. Thus the plaintiff, a mort- 1 Wheelwright v. Freeman, 12 Met. * Ohiey v. Atlanis, 7 Pick. 31. 151 ; Raynham v. Snow, ib. 157, n. 5 Stark v. Brown, 40 N. H. 345. 2 Churchill v. Loring, 19 Pick. 465. » Somes v. Skinner, 16 Mass. 348. 3 Ibid. 466. en. XXX.] PROCEEDINGS TO FORECLOSE. ' 121 gagcc, brouglit a suit for foreclosure against tlie mortgagor, one of the defendants, who was in |)Ossession, recovered a con- ditional judgment, and sued out an execution. Prior to the commencement of suit, the mortgagor had conveyed his equity of redemption, and pending the suit this grantee conveyed to the other defendant. At the time of service of the execution, both defendants were in possession, and forcibly ejected by the officer who delivered seisin to the plaintiff. The defendants afterwards entered and committed acts of trespass, for which the plaintiff brings this suit. Held, whatever might be the effect of the judgment as to a foreclosure, or the officer's right to expel the owner of the equity, this action was maintain- able.i § 7. In Massachusetts, by late statutory provisions, all real actions, except those for the foreclosure of mortgages, shall be brought in the Supreme Court ; and some questions of juris- diction have arisen upon the construction of these stat- utes, (a) § 8. Under Stat. 18-40, ch. 87, § 1, and Rev. Stats, ch. 107, § 3, the question, whether a real action is brought for the fore- closure of a mortgage^ so as to give jurisdiction to the Court of Common Pleas, depends not on the form of tiie writ, as setting forth a seisin in fee, or in fee and in mortgage, but on the facts proved in the case. And, if the former mode of declaring is adopted, that court lias authority to allow an amendment, by stating tiic plaintiff's claims as under a mortgage." (]:>') § 9. A mortgagee recovered a conditional judgment, on which a' writ of possession issued, but was never delivered to an officer. The mortgagor soon after died, and a devisee of tlie land entered, and had ever since remained in possession. 1 Miner v. Stevens, 1 Cash. 482. 2 Blanchard v. Kimbcall, 13 Met. 300. («) By a late statute, the Supreme possession of apart only of tlie premises Court lias concurrent jurisdiction with mortgaged, declares on his own seisin the Court of Common Pleas in the fore- of the remainder, in a writ of entry closure of mortgages; and all pending against the mortgagor, without naming actions, which have been removed from the mortgage or claiming a juilgment the latter to the former Court, shall as on mortgage; the defendant may proceed therein. Mass. Stats. 1852, require that the plaintiff be restricted bOlJ. to such judgment. Treat i'. Pierce, 53 (b) In Maine, when a mortgagee, in Maine, 71. 122 THE LAW OF MORTGAGES. [CH. XXX. Twelve years afterwards, the mortgagee died, and his adminis- trator, having entered upon the land, brings a writ of entry to recover it in the Supreme Court. Held, the suit was rightly brought. Bigelow, J., says: " Tlie suit on the mortgage, for the purpose of foreclosing it, was brought in the lifetime of the intestate ; and the conditional judgment allowed by the statute was then rendered. The demandant does not now seek for any such judgment. The tenant, claiming under the original mortgagor, cannot again ask for it. It is under that very judgment, still in force, that the demandant has entered and become seised. His possession, taken under the judg- ment, was lawful ; for a man who has judgment for possession, may enter without writ. The demandant, then, being law- fully in possession under the mortgage and judgment for the purpose of foreclosure, is disseised by the tenant. This action is brought, therefore, not for the purpose of foreclosure, but to protect the possession of the demandant against the wrong- ful act of the tenant. The tenant is charged as a wrong-doer. To this he pleads only the general issue, thereby admitting the disseisin, and putting in issue only the title of the demandant. A mortgagee at common law may have judgment for posses- sion before condition broken ; and this right is expressly rec- ognized in Rev. Sts. ch. 107, § 9. When, therefore, the object of the suit is not to foreclose a mortgage, but to recover pos- session against a wrong-doer, there seems to be no reason why the same judgment may not be recovered after condition broken. In such case, the right of the mortgagor or those claiming under him, to redeem, would not be affected, but would be enforced by a bill in equity." ^ § 10. Where a mortgagee has received possession of the estate, under an execution issued upon a conditional judgment in his favor, and is subsequently disseised by the mortgagor, before his right of redemption has expired ; the mortgagee may maintain a writ of entry against him, in the Supreme Court, declaring on his own seisin, without setting forth the title under which he claims.^ The Court remark : ^ " The only 1 Richardson v. Hildreth, 8 Cush. 2 Miner v. Stevens, 1 Cush. 468. 225, 227, 228. ^ Ibid. 469. CH. XXX.] PROCEEDINGS TO FORECLOSE. 123 doubt arises from the evidence introduced on the part of the deniandant, wliich seemed to show that he claimed as mort- f]!;agee, and was only entitled to the conditional jndgment. But thjs evidence was not necessary. It would have been suf- ficient to have exhibited the judgment without the mortgage. It is immaterial to consider what remedy a mortgagee would have, who, after having entered for condition broken, is ousted by his mortgagor. This is a proceeding, in which the defend- ants arc charged as wrong-doers. They jointly deny the wrong, and insist on their right, and do not claim to stand on the footing of mortgagees (mortgagors). The action is therefore against wrong-doers and not against mortgagors, and rightly brought in this court." § 11. As may be gathered from the cases already cited in this chapter, it is the general rule of law, that the mortgagor, in a suit against him for the land, cannot dispute the title of the mortgagee.^ So it is said,'-^ the Court will not permit the mort- gagee's title to be investigated under the proceedings in fore- closure. The Court can only bar the equity of redemption, and will leave the mortgagee to pursue his legal means to establish it. § 12. If a mortgagor is in possession at the time of giving the mortgage, the mortgagee may maintain a writ of entry against one who subsequently enters, unless he can show a better title in himself. It is no defence, that the tenant entered under one having a better title than tlio mortgagee.^ Parker, C. J., says :^ " The defendant is precluded from assert- ing the title of the church or of the rector (under a lease from whom the defendant claimed), in this case, because it appears that those under whom the demandant claims have for a long period had actual possession. The actual possession of those under whom the demandant claims continued until the de- fendant, without any title, saw fit to enter into the premises, under a belief, probably, that although he had no title himself, the party under whom he took his lease had a better title than that of the plaintiff". But under these circumstances the plain- 1 Goodtitle v. Bailey, Cowp. 597. ' Smith v. Edmiustcr, 13 N. II. 410. 2 Coote, 571. * Ibid. 413. 124 THE LAW OF MORTGAGES. [CH. XXX. tiff, ill a real action founded upon his mortgage, is not bound to try the validity of the title of his grantor with the defend- ant. It is sufficient, upon this issue, that the defendant, witli- out any title, has entered upon the legal seisin of the plaintiff, derived from the actual seisin of his mortgagor." § 13. Upon the same general principle, that the suit upon a mortgage is brought substantially to enforce payment of a debt, • and does not involve the question of title ; it has been held, that such action may be maintained against the assignee of the mortgagor, notwithstanding a lease from the plaintiff, prior to the mortgage, under which the lessee is in possession ; the plaintiff being at the time of such lease absolute owner of the land. Thus a writ of entry was brought on a mortgage made by one Gammon to the plaintiff. Plea, the general issue. The facts were, that the plaintiff, being owner of the premises, leased them for years to Fabyan, who assigned his interest to Thorp, and Thorp was in possession at the commencement of this suit. Between the making and assignment of the lease, the plaintiff gave a warranty deed to Gammon, reserving the right of the lessee ; and took back a mortgage to secure the price, a part of which was due. After assignment of the lease. Gammon conveyed to the defendant, subject to the mort- gage and lease. Held, the facts furnished no defence to this suit. The Court say : " Having leased the premises for five years, it may, at first sight, seem inconsistent that he should, ■within that period, seek to obtain a judgment in his favor for the very property, which he had for that time transferred to other persons ; especially as the deed conveying the property to Gammon recognizes the lease and reserves it. But upon considering the object of the mortgage, which is to secure the payment of the purchase-money, we do not apprehend that, under the conditional judgment, any injustice can be done to the defendant, the assignee of the original lessees. By the re- sult of this suit, the plaintiff would not be authorized to dis- turb the possession of Thorp under the lease. If he would take advantage of any delinquency, as to compliance with pecuniary duties secured by that instrument, it may become necessary for him to enter specially for non-payment of the rent. But whatever redress he may pursue as to the subject CH. XXX.] ■ PROCEEDINGS TO FORECLOSE. 125 of rent, the i)laiiiti(T is entitled to maintain liis action, and to the conditional judi^ment as in other cases of mortgage."^ § 14. In the case of Aniidown v. Peck,- which was an action upon a mortgage, the tenant ollercd to prove, in defence to the action, that the premises were subject to a mortgage, previous and paramount to that of the demandant, and that before this suit was commenced the'prior mortgagees had recovered judg- ment for possession, to foreclose the right of redemj)tion ; which judgment had been reversed on writ of error. This liowever was held not to be material ; for, if it had not been reversed, the tenant, not holding under the prior mortgagee, could not set up his title in defence to this action. But he also offered to prove, that the prior mortgagee still retained possession. It did not appear, however, that the possession was so retained, to the exclusion of the tenant or otherwise. But it was held, that, if the tenant was not in possession when the action was brought, he should have pleaded a disclaimer in abatement, or specified it as a defence. But, wdiether the ten- ant could in any form avail himself of such a defence, if this action was brought for the purpose of foreclosure, might well be doubted. The Court say : " This process, though in form an action at law, is in fact a suit in equity ; because the judg- ment is conditional. But it is unnecessary to decide this point; as the tenant has not disclaimed all right to possession, but sets up the title and possession of a third party, under whom he has no claim ; which cannot, upon any principle, be allowed." § 15. In Vermont, upon the ground that a suit to foreclose a mortgage is to be regarded as a suit for the money due there- upon ; it has been held that the defendant may rely upon a tender^ as in other cases of mere indebtedness. This princii)le was applied to an action of ejectment, in which the j)lainti(r claimed title under a decree of divorce, assigning to the jilain- tiff the demanded premises, as alimony, the assignment to be void upon payment thereof by instalments. The Court say : *' The defence set up is good at law, as well as in equity. If 1 Whittler v. Dow, 2 Shepl. 298, 299; 1 Tow. IGG, a, n. 'i llMet. 4G7. 126 THE LAW OP MORTGAGES. [CH. XXX. the decree was considered as a mortgage, or in the nature of a mortgage, designed to secure the payment of money, the Court should endeavor so to construe it as to effect the object, namely, the payment of the money, and not to make it operate as a penalty and forfeiture. The common law upon the subject of mortgages is, that there must be a strict performance of the condition, or the estate is forfeited. Hence, a tender after the day could not be taken advantage of. In this State, after a recovery in an action of ejectment, relief can be had from the court rendering the judgment, on a petition to redeem. In the action of ejectment, when the plaintiff" makes title by a mortgage deed, it is required that the securities mentioned in the condition should be brought into court, to repel the pre- sumption of their having been paid, if not produced. It is a good defence, in such an action, that payment has been made, and consequently, a tender must be a good defence." ^ § 16. Although the strict rules of real actions are in many particulars dispensed with in relation to mortgages, yet it has been held, that such action cannot be maintained upon amortr gage, without proof of actual or constructive ouster by the de- fendant. Thus, November 27, 1827, Rowland and Joseph W. Bancroft mortgaged to Joel Root, the demandant's intestate, and Alvah Stow, one of the tenants, who defends the present suit, the Bancrofts being the other tenants and defaulted. The mortgage was made to secure a note made by Bancrofts to Root for $136, payable in one year, with annual interest, and two other notes, signed by the Bancrofts and by Stow as surety, each of the same date and for the same sum, with annual in- terest, one payable in two, the other in three years. The con- dition of the mortgage was, that Rowland and Joseph W. should pay Root their note for 8136, payable in one year, and also their two notes for the same sum " undersigned by Alvah Stow, one payable in two, and the other in three years, with interest annually." May 7, 1832, a suit was brought in the names of Root and Stow, upon the mortgage, and at the April term of the Supreme Court, in 1834, judgment recovered for the first note ; Stow having paid the others. October 15, 1834, 1 Powers V. Powers, 11 Verm. 262, 263, 264. CH. XXX.] PROCEEDINGS TO FORECLOSE. 127 execution issued, but was never committed to an ollicer, nor did Root take possession of the premises. July 20, 1840, Stow, having an execution against the Bancrofts, levied it upon their equity of redumption, and himself became the purchaser, took a deed from the sheriff, and afterwards had exclusive posses- sion. The demandants bring a writ of entry, counting on the mortgage. Held, Root and Stow were tenants in common of the legal estate ; that there had been no ouster by Stow, and therefore this action could not be maintained, though a bill in equity might lie, to adjust the interests of the parties in the equitable and beneficial estate.^ (a) § 17. Although, as has been stated, there is generally an election of remedies to enforce a mortgage ; yet, more es- pecially, perhaps, in those States which have no courts with 1 Root V. Bancroft, 10 Met. 44. ((/) Tlie teclinical rules relating to real actions have also been enforced, with reference to a suit for partition, brought by the mortgagor. In the case of Bradley v. Fuller (23 Pick. 1), it was held, that, where the same person is absolute owner of one- half of a tract of land and mortgagee of the other half, the assignees of the mortgagor cannot have partition, as between them and the mortgagee. The Court remarked (Ibid. U) : " Whether the petition for partition be regarded as a real action, in which the title is drawn in question, or as a suit for pos- session ; it is an adversary suit, and the mortgagee has both the legal title and the right of possession, as against the mortgagor and those who claim under him. A bill to redeem is the proper remedy, and after redemption a petition for partition may be sustained." In the same case it was held, that, where two tenants in common have sev- erally mortgaged their respective, un- divided shares to the same person, one of them may have partition against the other before entry by the mortgagee ; but the rights of the latter will not be thereby affected. The following case, more recently decided in Massachusetts, further il- lustrates the mutual rights of tenants in common of an equity of redemp- tion. A mortgagor conveyed one undivid- ed half of the land to one person, and the other to another, by deeds simulta- neously executed, one of which was recorded immediately. This grantee conveyed, by deed duly recorded, to the plaintiff, after which the grantee of the other half recorded his deed and died. The plaintiH^ iiaving l)ec<)me an assignee of the mortgage, brings an action for foreclosure against the mort- gagor and the other grantee of the mortgagor, as administrator of the de- ceased grantee, and recovers a condi- tional judgment, which is satisfied by the defendant, a purchaser of the title and interest of the deceased pending the suit for foreclosure. Held, the l)laintiff might maintain a writ of entry for one \milivided half of the land, with- out contributing towards ]iaynKMit of the mortgage. Chase r. Woodl)ury, Mass. S. J. C, October, 1851; Law Itep., September, 1852, p. 284. 128 THE LAW OF MORTGAGES. [CH. XXX. full equity powers, the general principle applies, that equity- will not interfere, where an action at law would accomplish the same purpose. Hence, in Massachusetts, a mortgagee cannot maintain a bill in equity for foreclosure, where, under the circumstances, he would have an adequate remedy at law. (a) Thus, in a bill in equity to foreclose a mortgage, the plaintiff alleged, that the land was mortgaged to him by the grantee of the mother of the defendant ; that the defendant claimed to hold it, as her heir, discharged of the mortgage, because, when she conveyed to the mortgagor, she had a hus- band living, who was not a party, nor consenting to such con- veyance ; that such conveyance was in fact made before her marriage, or, if afterwards, for a valuable consideration with the defendant's knowledge and consent, and under circum- stances, set forth in the bill, which might constitute an estop- pel against him. The bill prayed for an account ; that the plaintiff's lien might be declared and established, and the defendant decreed to pay the plaintiff his debt and cost by a short day, to be appointed by the Court, the plaintiff reconvey- ing, as the Court should order ; that in default of such pay- ment, the right to redeem should be foreclosed ; and that the defendant should hold in trust for the plaintiff, subject to the payment of his debt and costs. Held, upon either ground stated in the bill, the plaintiff had a remedy at law, and the bill was dismissed.^ 1 Lowell V. Daniels, 2 Cush. 234. (a) The Court has now full equity mortgagor files a bill against the obli- jurisdiction. See Gen. Stat. gor and mortgagee, to set aside the Tlie obligee in a bond for convey- transaction. Held, as the plaintiff had ance of real estate, being in possession, suffered no injury, tlie bill could not be mortgaged the bond, and the mortga- sustained. Newliouse v. Hill, 7 Blackf. gee obtained a conveyance from the 584. obligor, and gave up the bond. The CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 129 CHAPTER XXXI. FORECLOSURE, ETC. — PARTIES TO SUITS UPON MORTGAGES. 1. Parties at law and in equity. 2. In equitj', all persons interested should be made parties. • 4. Application of the rule in case of jiarties vquitnbly interested. 9. Creditors and debtors. 13. Joint mortgagees, &c. 27. Assijinees and purchasers. 45. Sureties for the mortgage debt. 51. Other mortgagees; subsequent or prior. 82. Remainder-men. 83. Parties, after the death of mortga- gor or mortgagee. 102. (Juardians. 105. Husband and wife. 109. Agent. 110. Adverse claimant. 113. Rights of joint defendants as to each other; whetlier their mutual claims shall be adjusted before foreclosure. § 1. Questions relating to the proper parties in suits upon mortgages arise chiefly in courts of equity ; the rules upon the subject in a court of law being comparatively simple and well defined. § 2. In equity proceedings, either for foreclosure or redemp- tion, the general rule is, that, for the purpose of etfecting an equitable adjustment among all persons interested in the mort- gaged property, all parties in interest shall be made also parties to the suit, (a) Persons interested in the property, but not (a) Sec Caldwell r. Taggart, 4 Pet. 190 ; M'Call v. Yard, 3 Stockt. 58. Also the remarks of the Court in Goodman v. White (20 Conn. 322), an instructive case. The rifjht of redeeming has been made the criterion as to proper parties to a suit for foreclosure. Tiius Lord Langdale, M. K., says (C Beav. 557) : " Considering this a bill of foreclosure, I think that every one of the defend- ants was a necessary party, because each of them had a right to redeem." To make a person defendant to a Buit to foreclose, it must be alleged VOL. II. that he either has or claims some inter- est in the property. An ai)plicatioii to amend a disclaimer of .such interest, if it involves a modifying of the plead- ings, cannot be made after tlie cause has been called for trial. Martin v. Noble, 29 Ind. 21G. If one made defendant, as claiming some interest subsequent to the mort- gage, claims no such interest, he should disclaim, and tlie suit siiould be dis- missed as to him. The setting up of a paramount title is no answer ; and, if the plaintiff does not choose to litigate 9 130 THE LAW OF MORTGAGES. [CH. XXXI. made parties to the suit, will not in general be bound ; ^ nor, on the other hand, can a stranger object to the relief prayed for, 1 See Yelverton v. Shclden, 2 Sandf. 574; Knovvlcs v. Lawton, 18 Geo. 476; Ch. 481; Williamson v. Field, ib. 533; Farwell v. Murphy, 2 Wis. 533; Hull Goodrifch v. Staples, 2 Gush. 2-58; Cal- v. Lyon, 27 Mis. 570; Howard v. Gres- verley v. Phelp, 6 Madd. 232; Coote, ham, 27 Geo. 347. such title, he may demur. Pelton v. Farmin, 18 Wis. 222. A mortgagor, or the purchaser of the equity of redemption, is a necessary party to a foreclosure sale. De Leon V. Higuera, 15 Cal. 483 ; Goodenow v. Ewer, 16 Cal. 461 ; Boggs v. Hargrave, ib. 559. See § 38. The mortgagor is a necessary party to the foreclosure suit, though the rem- edy against him personally is barred by the Statute of Limitations. Mich- igan V. Brown, 11 Mich. 265. A mortgagor, who has disposed of his equity of redemption, is not neces- sarily a proper party to the foreclosure. Murray v. Catlett, 4 Greene (Iowa), 108 ; Johnson v. Monell, 13 Iowa, 300 ; Semple v. Lee, ib. 804. A third person, who executed an absolute deed to the creditor, who exe- cuted a defeasance to the debtor, was held a proper, though not necessary party, to a suit to foreclose the mort- gage constituted by the two instru- ments. Weed V. Stevens, 1 Clark, 166. In New York, prior to the Act of May, 1840, all parties having an inter- est in mortgaged premises being neces- sary parties to a suit for foreclosure, and the notice of lis pendens being merely to prevent the acquisition of rights in the premises, by third persons, pending the suit ; a decree of foreclo- sure, on a bill filed prior to that Act, binds all the parties to the suit, how- ever defective the notice may have been ; and, in the absence of an allega- tion to tiie contrary, all persons inter- ested -will be presumed to have been parties. Totten v. Stuyvesant, 3 Edw. Ch. 500. A. executed a mortgage to secure one debt. B., C, and D. executed a subsequent mortgage to secure the same and another debt. Although the mortgagors held different estates in the mortgaged premises, held, that a bill, by a party to whom both debts had come by assignment, for a sale of the premises, might properly include all these matters, as a definitive decree could not be passed, unless all parties were before the Court. Fitzhugh v. McPherson, 9 Gill & J. 51. A mere formal party in the original bill, whose interests are not affected by the new matter charged in a supple- mental bill, need not be made a party to it. Allen v. Taylor, 2 Green, Ch. 435. A. owed a debt to B., which was secured by mortgage, and B. was in- debted to C. in an equal amount. C. brought foreign attachment, obtained judgment, made demand of A. on the execution, which was returned unsatis- fied, and then brought a scire facias and recovered judgment against A., who had no means of payment but the land mortgaged to B. Pending a bill for foreclosure, brought by B, C. made application in chancery to become party thereto, and to stand in B.'s place, and take the benefit of his security. Held, that C. was not entitled to the relief prayed for. Judah v. Judd, 1 Conn. 309. After expiration of the time to answer in a foreclosure suit, persons made defendants, on the ground that CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 131 until regularly made a party. ^ When all ]»arties in interest arc before the Court, the decree will be such as to satisfy all » McDoiigakl V. Ilall, 3 Kelly, 174. they claimed an interest subsequent to the mortgage, asked leave to file an answer, to the effect tiiat they had no knowledge or information sufficient to form a belief as to the execution and record of the mortgage ; and that, at the time their interest was acquired, they had no actual knowledge, infor- mation, or notice of such mortgage. The complaint alleged that the mort- gage was duly recorded before the day on which they claimed to have acquired their interest. Held, the answer was insufficient, and the motion prof^erly denied. If filed in season, it should have been stricken out as sham. Hath- away I'. Baldwin, 17 Wis. GIG. As to making the State a party to a foreclosure suit, see Pattison v. Shaw, 6 Ind. 377. In March, 1848, A. filed a bill against the Xew England Manufacturing Company, for the foreclosure of a mort- gage executed by the companj^ to him. In January, 184'J, B. presented a peti- tion to the court, setting forth that A., when he received the mortgage, gave a declaration of trust, that he received it for the purpose of securing to a certain bank certain drafts drawn by the com- pany on C, and accepted by them, which had been discounted by the bank for the benefit of the company, and that, in case the draft should be paid bj' C, on account of the company, before the company should liave placed funds in the hands of C. to meet it, the bond and mortgage were to he held by A. in trust to secure to (/. the amount which should remain due to them on account of their payments made on the drafts, with power to assign the bond and mortgage to either of the parties that might be entitled to the same ; that in May, 1817, the petitioner became the owner of sixty-two shares of the stock of the company ; that C. had the entire control of the company, and would not allow any answer or defence to the bill ; and that nothing was due on the mort>- gage. Ordered, that the petitioner be permitted, as a stockholder, to answer the bill, and be made and deemed a party thereto. Vandyke v. Brown, 4 Halst. Ch. G57. AViiere, in a foreclosure suit, a junior mortgagee is joined as defend- ant with the mortgagor, he cannot avail himself of a defective service on the mortgagor, of which the mortgagor himself does not complain. Semple v. Lee, 13 Iowa, 304. Ace. Mims v. Mims, 35 Ala. 23. See § 51. If a third person is wrongly made party, and discharged from the suit, the mortgagor, not being thereby injured, cannot avail himself of the objection. Martin v. McKeynolds, 6 Mich. 70. In a foreclosure suit, parties who might have been made co-plaintifTs were made defendants, and no reason alleged ; but their answer and the judg- ment showed that no injury had been done them, nor did they appeal. Held, the mortgagor could not object. Lou- den V. Dickerson, 10 Ind. 387. An order of the Probate Court, to which the mortgagee was not a party, setting aside the mortgaged premises as a homestead, cannot affect him. Lies V. l)e Diablar, 12 Cal. 327. A defendant in foreclosure canno complain of insufficient service on another defendant who is not a neces- sary party. Mims r. Mims, 3o Ala. 23. A party to proceedings for foreclo- sure, who has no right to the premises, 132 THE LAW OF MORTGAGES, [CH. XXXI. their mutual and respective equities.^ Thus, where a judg- ment of foreclosure was recovered by the executrix of the mortgagee, in 1826, in a suit against the mortgagor ; and in 1819 the mortgagor had assigned his right of redemption, and the plaintiffs claimed under the assignee : the judgment, as to the plaintiffs, was held res inter alios, and the plaintiffs allowed to redeem.^ So, under a bill to foreclose a mortgage, a new defendant was brought in, upon an amended bill, to which the original defendant made no answer, but tlie new defendant answered, alleging fraud in the plaintiffs in obtaining an as- signment of the mortgage from him as the original mortgagee. The bill being dismissed as to the plaintiffs, held, the new de- fendant could not have a decree of foreclosure against tlie 1 Moss V. Bratton, 5 Rich. Eq. 1 ; Stanton v. Kline, 16 Barb. 9 ; Ducker v. Belt, 3 Md. Ch. 13. ^ Gordon v. Hobart, 2 Sumn. 401. cannot assail the mortgage. Carleton V. Byington, 18 Iowa, 482. If the mortgagor submits to judg- ment for foreclosure, no one else can in- tervene to object. If there is fraud and collusion, the judgment binds only the mortgagor. Sutton v. Sutton, 25 Geo. 383. A party interested, not made defend- ant, may, after decree and before foreclosure, bring a bill to determine the amount of the incumbrance and to redeem. And that, although in the foreclosure suit he filed a paper, asking that the land claimed by him should only bear part of the mortgage, which paper was disregarded by the Court. And an agreement by the mortgagor, to include in the decree certain ex- penses not legally included in the mort- gage, cannot affect such party. His land is bound for its share of the costs of foreclosure. But not of the costs of a sale, which was void for want of a seal upon the execution. Bates v. Rud- dick, 2 Clarke, 423. In a foreclosure action, the mort- gagor, and all parties interested in the funds arising from the foreclosure sale, have a right to insist upon proof of the filing of notice of Us pendens; and a judgment of foreclosure rendered with- out such proof is irregular. Catlin v. Pedrick, 17 Wis. 88. Parties made defendants, as being interested in the equity of redemption or Ijicumbrances since the mortgage, are entitled to notice of a petition for a decree of the surjilus arising on a sale. Smith V. Smith, 13 Mich. 258. Under Mis. Rev. Code, 1855, p. 1089, § 6, persons claiming an interest in mortgaged premises, of which a fore- closure is sought, can be allowed to become parties only so far as necessary for their own protection. Wall v. Nay, 30 Mis. 494. Non-joinder is not fatal to the decree, but it is binding only on the parties. Green v. Dixon, 9 Wis. 532. A party is bound by the decree, and, while the decree and the sale remain in force, cannot contest the title of the purchaser. McGee v. Smith, 1 Green (N. J.), 462; White v. Evans, 47 Barb. 179. CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 133 original defendant, the latter not liaving been made an adver- sary party to liim by motion or cross-bill.^ So where parties, claiming- to be the trustees of a corporation, executed a l)ond and mortgage as such, and others, making the same claim, brought a suit against them to establish tlieir rights, and pend- ing that suit the mortgagees brought a bill for foreclosure, and obtained a decree thereon, after which the i)laintilTs in the other action were adjudged the rightful trustees ; lield, the decree of foreclosure was not binding upon the corporation or the rightful trustees, they not being parties thereto ; and the decree, and all proceedings subsequent to the filing of tlie bill were set aside, and the bill dismissed, but without prejudice to the riglit of bringing a new suit.^ And, although one who is made party cannot avoid the foreclosure for non-joinder of another person having an interest, but which docs not ai^pear by the pleadings ; yet, if he afterwards acquire the interest of the latter, he has a right to redeem.^ (a) § 3. The mortgagor, as well as the mortgagee, must, as a general rule, make all persons interested in the mortgage parties to his bill. Tiuis, where the mortgagee of a term bequeathed it to trustees, upon trust to sell and divide the 1 Miller I*. McGalligan, 1 Greene, 527. ' Browitt v. Moor, 12 Eng. Law & 2 Brindcrnagle v. German, &c., 1 Eq. 241. See Mobile, &c. v. Talman, Barb. Ch. 15. 15 Ala. 472. (a) While the rights of one not Held, the first mortgagee might still made party to the suit cannot be barred maintain a bill for foreclosure against by the judgment; a paramount title the purchaser. Williamson v. I'ro- will not always be afiected by a judg- basco, 4 Halst. Ch. 57. nient between other parties, although Where mortgagees filed a petition the owner of such title be formally no- to foreclose, and certain defendants tified of the suit. Thus a prior mort- answered, claiming liens, and asked gagee, residing out of the State, was for relief, and the mortgagors demurred made party defendant to a bill for fore- to the petition ; held, it was proper for closure of a second mortgage, brouglit the Court to proceed and determine by an assignee. Not appearing, there the questions concerning the liens, al- was an order of publication, and a though the mortgagees, after the de- decree pro confesso against him, and the murrer had been sustafned by tlie usual decree for foreclosure of the Court, did not amend their petition, second mortgage, and a sale, to one Kliinne v. Bradstrcet, 7 Ohio (N. S.), having notice of the first mortgage. 323. 134 THE LAW OF MORTGAGES. [CH. XXXI. produce between thirteen persons by name ; held, all the ces- iuis que trust were necessary parties to a bill for redemption, though by the will the trustees had authority to give dis- charges for the purchase-money.^ Lyndhurst, Lord Chan- cellor, says : ^ " The case of Yates v. Hambly,^ docs not, in my opinion, support tlie application. Lord Ilardwicke said in that case, that ' where a mortgagee, who has a plain redeemable interest, makes several conveyances upon trust in order to entangle the atfair, and to render it difficult for a mortgagor or his representatives to redeem, there it is not necessary that the plaintiff should trace out all the persons who have an interest in such trust, to make them parties.' In the present case there does not appear to have been any such intention. The testator directs the property to be sold, and the produce to be apportioned among' his children, and one grandchild. They happen to be thirteen in number, but it does not appear to me tliat that is a sufficient ground for departing from the usual rule." § 4. The case just cited furnishes one of the particular in- stances, in which the question as to proper parties has been raised. The point of inquiry in this class of cases has been, whether the general rule upon the subject applies to those having a mere equitable interest in the land. § 5. In New York it has been held, that the cestui que trust of an equity of redemption must be made party to a suit for foreclosure. So one entitled to an equitable vested remainder in fee ; in order to bind him by the proceedings. So, although the trustee mortgaged the estate by order of Court. But not those claiming under remote limitations.* § 6. Where a cestui brings a bill to foreclose, the trustee must be made party ;^ and vice versd.^ Leach, V. C, says : " It is his legal estate which is to be protected by the decree 1 Osbourn v. Fallows, 1 Russ. & My. 533 ; King v. McViekar, 3 .Sandf. Ch. 741. 192. See Coote, 575 ; Tylee v. Webb, 2 Ibid. 748. 6 Beav. 557. 3 2 Atk. 287. See Coote, 589 ; 1 5 Wood v. Williams, 4 Madd. 186. Dan. Ch. Prac. 255. ^ Davis i'. Hemingway, 3 Mis. 438; * Williamson v. Field, 2 Sandf. Ch. contra, Wright v. Bundy, 11 Ind. 398. CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 135 of foreclosure, and he is a necessary party to an immediate reconveyance, if the defendant should redeem." So the legal owner of lands, held partly in trust for A., and partly as security for advances made by himself, is a necessary party to a bill, brouj^ht by A., to redeem a mortgage, conditioned to satisfy certain incumbrances on the land.^ So, where an equity of redemption was conveyed to trustees, upon trust to sell and pay off incumbrances, and divide the surplus among certain parties named in the deed ; it was held that the cestuis que trust must be made parties to a bill for fore- closure, althougli, by the deed, the trustees had authority to give valid discharges to purchasers.^ Leach, V. C, says:^ " The author of the trust has declared that in case of a sale, the presence of tlie parties beneficially interested in the prod- uce of the sale shall not be necessary ; and he had a right to deal as he pleased with his own property ; but this decla- ration has no application to a bill of foreclosure ; and the general rule must prevail, that all persons interested in the equity of redemption shall be parties to the suit for foreclo- sure." So, in the case of a trust for creditors, where their names and demands, though not specified at the time of creat- ing the trust, are subsequently ascertained by their signing a schedule to the conveyance ; they must be made parties. Though it is otherwise, where there is a general trust, and the demands of creditors are neither specified in the deed nor subsequently ascertained."* So a marriage settlement con- tained the usual power to appoint new trustees ; one of the trustees relinquished his trust, and a memorandum to that effect was indorsed on the settlement, but no new one appointed in his place, and subsequently the remaining trus- tees loaned the funds on mortgage. Held, the retired trus- tee was a necessary party to a bill of foreclosure.^ Bruce, V. C, says : ^ " Can a trustee who has once accepted be free from the trust except upon the substitution of some one else iu his place ? I think that Bowen ought to be a party." 1 Upham r. Brooks, 2 Story, G23 ; * Coote, 575 ; Swift v. Stebbins, 4 Martin v. McRcynolds, G Mich. 70. St. & P. 447. '^ Calveriey v. Pliclp, G Madd. 229. ^ Adams v. Payntcr, 1 Coll. 532. See Tylee v. Webb, 6 Beav. 557. « Ibid. 534. 3 Ibid. 232. 136 THE LAW OF MORTGAGES. [CH. XXXI. § 7. It is sometimes held, however, that the cestui of an equity of redemption need not be made party to a suit for foreclosure.^ Thus cestuis que trust (bondholders) of a sec- ond mortgage arc not necessary parties to a suit to foreclose the prior mortgage, in which the trustees are made defend- ants. ^ § 8. It is said,^ an exceptiou to the general rule seems to exist, when the cestuis are too numerous to be made parties, or the trust is a mere general one for creditors, or the only object is to reduce the property to possession. Thus in case of a bill to enforce a mortgage, against land conveyed to a trustee by a purchaser, subsequently to the mortgage, with notice of it, for the benefit of the creditors of his grantor ; held, the trustee was affected with notice to his grantor, and the creditors need not be made parties.'* So, where a mort- gage had been assigned to A., in trust for several individuals, it was held not necessary to make the cestuis que trust parties to a bill of foreclosure.^ So, under the Act of Maryland, 1833, eh. 181, a mortgage in trust was executed for the bene- fit of the payees of certain notes secured by it, the mortga- gee, upon default, to make sale, and apply the proceeds to the debt and interest. Held, that by the third section of that act the mortgagee was the proper person required to make the statement and affidavit, and that it was not necessary for the payees in the notes to be made parties to the proceedings under the act.^ (a) And, on the other hand, it is said, if there be fraud or collusion to the detriment of third parties, as if assignees or executors or trustees refuse to enforce their right, creditors, legatees, or other parties interested may file their bill for relief.' (6) 1 Wood V. Nisbet, 20 Geo. 72. See Sale v. Kitson, 15 Eng. Law & Eq. 2 New Jersey, &c., Co. v. Ames, 1 590. Beasl. 507. 6 Hays v. Dorsey, 5 Md. 99. 3 Coote, 589. '^ Coote, 588 ; SiU v. Ketchum, Harr. 4 Willis V. Henderson, 4 Scam. 13. Ch. 423. 5 Sill V. Ketchum, Harr. Ch. 423. (a) A. mortgaged to B. to secure against him on the note. Held, he was C.'s note, and brought a suit to fore- not a necessary party. Kearsing v. close. C. had no interest in the prem- Kilian, 18 Cal. 491. ises, and no personal claim was made {h) When a mortgage is executed CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 137 § 9. The question sometimes arises, whether judgment cred- itors of the mortgagor shall be made parties, (a) § 10. It has been held in England, that subsequent judg- ment creditors must be made parties to the bill for foreclosure. It is not enough to serve them with copies of the bill under the 23d of the Orders of August, 1841.' Bruce, V. C, says : - " It appears upon the face of the bill, or is otherwise ad- mitted, that there is a puisne mortgagee, or incumbrancer of that nature, who is a party to the bill, and that there are judgment creditors of the mortgagor intervening between the first and second mortgagee. Ever since I have known any thing of this court, such intervening incumbrancers have always been considered necessary parties to a bill of fore- closure. Cases of judgments confessed pendente lite, cases of fraud, cases of parties inconveniently numerous, may possibly exist in such a manner as to form an exception to the rule ; cases of judgments pendente lite generally do. But this is not that description of case. It is said that these persons are parties. If so, the bill is in this situation ; it is brought to a hearing against several defendants, some of whom have not 1 Adams v. Paynter, 1 Coll. 430; Hendry v. Quinan, 4 Ilalst. Ch. 534. contra, Pefson v. Merrick, 5 Wis. 231 ; See Hilt v. Holliday, 2 Litt. 332. 2 Adams v. Paynter, 1 Coll. 432. , by a trustee, the cestui is a necessary v. Fox, 5 Waslib. 388. On the other party to a suit for foreclosure ; and, if hand, it is decided, in Connecticut, that a, feme covert, her husband also. Mav- a decree of foreclosure will not affect rich V. Grier, 3 Nev. 52. the rights of the attaching creditor, un- Jn case of mortgage from a corpo- less he be made a party. Hence, if the ration to trustees for the benefit of creditor afterwards recover judgment, such persons as sliould thereafter fur- and lev}^ execution on the premises, he nish materials ; held, as the interests of may redeem, notwithstanding the forc- the material-men were several, either closure. L3'ne v. Sandford, 5 Conn, one might enforce the mortgage to the 544. See People's, &c. v. Hamilton, extent of liis debt, without joining the &c., 10 Paige, 481 ; Loomis v. Stuy- trustees, or any one else, unless they vesant, 10 Paige, 490. had existing interests which required To a bill by the heirs of an insol- to be adjusted. Tyler v. Yreka, 14 vent to set aside a sale, under the Cal. 212. insolvent laws of Louisiana, of mort- (a) It has been held, in Vermont, gaged property, the mortgage credi- that, in a bill for foreclosure, it is nei- tors, though averred by the bill to be ther necessary nor proper to make a out of the jurisdiction of the Court, mere attdchiiu/ creditor, who has not re- are necessary parties. Coiron v. Mil- covered judgment, a party. Downer laudon, I'U How. (U. S.) 113. 138 THE LAW OF MORTGAGES. [CH. XXXI. answered. Generally such a bill, unless process has been exhausted, cannot be heard." And the foreclosure of a mort- gage, without making the holder of a judgment lien a party, is, as to such holder, held a nullity.^ § 11. But where a mortgagee seized and sold on execution property sufficient to satisfy a judgment for the mortgage debt, and, the mortgagor having become bankrupt, the mortgagee was enjoined from applying the proceeds to his judgment, until he should have exhausted his mortgage ; held, the mort- gagee might maintain a bill to foreclose against a purchaser from the assignee of the premises, without joining the junior judgment creditors of the mortgagor.^ And it is held that a bill, filed for the purpose of obtaining a sale of mortgaged premises, need not allege that there are no creditors or subse- quent purchasers, nor make them parties, although the mort- gage has not been legally registered. Such parties claim in different rights, have no connection whatever with the mort- gage, and cannot be affected by any decree in the case.^ (a) 1 Brainard v. Cooper; 10 N. Y. (6 2 Welder v. Murphy, 2 Rich. Eq. Seld.) 356. (S. C.) 58. 3 Miras V. Mims, 1 Humph. 425. (a) If, pending a bill to foreclose, the land is sold under junior execu- tions, the purchaser need not be made a party ; tliough it seems he may be- come a party if he so desires. Ben- nett V. Calhoun, &c., 9 Rich. Eq. 163. A judgment creditor, having a gen- eral lien on an equity of redemption, is not a purchaser for valuable considera- tion, nor a necessary party to a suit for foreclosure. Gaines v. Walker, 16 Ind. 361. Where a prior incumbrancer by judgment, on being made party to a foreclosure suit, under an allegation, charging him as having an interest in the premises subsequent to the mort- gage, makes no defence, but allows judgment by default, and the surplus moneys to be distributed to other claim- ants ; this is not an admission by him upon the record, that he has no lien older than or superior to the mortgage, so as to be an absolute estoppel upon him (or a purchaser under his judg- ment), in another action brought by a ditferent plaintiff for the foreclosure of a distinct and prior mortgage, and pre- vent him from claiming the surplus moneys to which he is apparently en- titled by his judgment ; neither the par- ties nor the subject being the same. Frost V. Koon, 30 N. Y. 428. Where, pending a foreclosure suit, a railway company took possession of a part of the premises for the use of its road, and obtained an award of damages by commissioners, and an appeal was still undetermined ; held, not error to deny a motion by the mortgagor that such company be made a party. Fire- man's V. Eldred, 20 Wis. 196. An insolvent corporation has no in- terest in a suit to foreclose a mortgage CH. XXXT.] FORECLOSURE, ETC. — PARTIES. 139 § 12. To a bill for foreclosure of a mortgngc, given by replevin bail to the creditor, as security for tbe debt claimed, the judgment debtors in the judgment recovered by the mort- gagee should be made parties ; and, if they are made parties, and one of them dies pending the bill, his heirs and represen- tatives siiould be made parties by bill of revivor.^ (a) § 13. Another question as to parties arises from the joint interests of several persons, as mortgagors or mortgagees.- (6) § 14. It is said, if two estates are comprised in one mort- gage, and the equities of redemption devolve on different par- 1 Milroy v. Stockwell, 1 Smith, 19. 2 g^e Fanvcll r. Murpliy, 2 Wis. 533. given to its receivers to secure a debt to the corporation, and is not properly a party to tiie suit. Iglehart v. Bierce, 3G III. 133. («) A.s judgment creditors of the mortgagor may be proper parties to a suit on the mortgage, so a mortgagee may sometimes be made party defend- ant to a suit in equity by a creditor of the mortgagor. The following decision illustrates the proper course of proceed- ing in such a case : — In Maryland, where a mortgagee is made defendant to a creditor's bill, filed for the sale of an equity of redemption and other property, and assents in his answer to a sale, a sale may be decreed for payment of the mortgage debt; and tliis without giving time to the owners of the equity for such paj-ment. The Act of 1782, § 3, requires that time be given only where the mortga- gee applies for foreclosure. Gibson v. McCormick, 10 G. & J. 65. The Court say (Ibid. 101, 102): "A decree be- tween co-defendants, grounded upon the pleadings between the complain- ants and defendants, may be made, and it is the constant practice of the courts so to do, to prevent multiplicity of suits. But such decree between co- defendants, to be binding upon them, must be founded upon and connected with, the subject-matter in litigation between the complainant and one or more of the defendants. The assent of the mortgagee had been given, the mortgage had been long forfeited, a sale of the equity of redemption could not be resisted ; then wiiy sell the equity of redemption, subject to the outstanding mortgage, to the manifest injury of the creditors of the deceased, and to the parties to this suit, and to the multiplication of litigation, by send- ing the purchaser before he could rea- lize tlie benefits of his purchase, into a court of equity with his bill to redeem? The bill is filed by a general creilitor of the mortgagor. Such a creditor is not to be delaj'ed in the remedy he seeks, by giving time to the mortgagor. The design of the legislature was to give to the debtor an opportunity of supersed- ing the necessity for the sale. Would giving time, and payment of the mort- gage, remove the necessity for such sale in the case before us ? Certainly not. The sale must still be decreed for the payment of the general credit- ors. So far as a siile is decreed for the payment of the mortgage debt, it is a mere incidental consequence to the decree." (b) A decree of foreclosure will not be rendered against one co-defendant ; no such decree being asked in the i>etition. Mobley v. Dubuque, 11 Iowa, 71. See Berksiiire v. Shultz, 25 Ind. 523; Poett V. Stearns, 28 Cal. 22G. 140 THE LAW OF MORTGAGES. [CH. XXXI. tics ; the equitable owner of one cannot maintain a bill to redeem without making the other owner a party to the suit. And that the same rule applies to two distinct mortgages of different estates for different sums to the same mortjraffce, and a subsequent severance of the equity of redemption.^ So, in case of a mortgage to the defendant, a second mortgage to another person, and a third to the second mortgagee and the two plaintiffs ; the second mortgagee assigns his interest in both mortgages to the defendant, wlio, before maturity of his notes, enters for non-payment of interest. Held, tiie plain- tiffs were rightly joined in a bill to redeem the two first mortgages.^ (a) § 15. Several mortgagees, who are joint tenants of the same property, must be parties to a foreclosure.^ So, when one party receives a mortgage in his own name for a partnership debt, he must join the others in a bill to foreclose.'* (S) So, on a bill to foreclose, brought by one of two mortgagees, each having lent a certain sum on the mortgage ; held, there could be no foreclosure or redemption, unless both creditors were before the Court.^ And where a joint mortgage was made to two persons, to secure several debts: held, they might prop- erly file a joint bill for foreclosure, and have a decree for a sale. A distinction was taken between this process, of resort- ing to the land, and a personal suit for the debt, which must be several where the subject-matter is so, even though the covenant is in terms joint.^ So where, on a bill to foreclose, 1 Coote, 602, 603. 5 Palmer v. Carlisle, 1 Sim. & St. 2 Saunders v. Frost, 5 Pick. 259. 423. 3 Lowe V. Morgan, 1 Bro. 368. « Shirkey v. Hanna, 3 Blackf. 403 ; * Noyes v. Sawyer, 3 Verm. 160. contra, Thayer v. Campbell, 9 Mis. 280. (a) Also, that the defendant could redemption of the other, in tlie propor- not be compelled to contribute in pay- tion that his interest in the third had ing off the two first mortgages, but, if to the interest of the two other mort- he did not, and the plaintiffs alone re- gagees. Ibid. deemed them, he could not avail him- (b) A writ of entry, to foreclose a self of liis interest in the third mort- mortgage to " The Copake Iron gage, but the plaintiffs would be Works," may be maintained by the entitled to possession till reimbursed individuals who compose a firm, and his proportion. And, if the defendant do business, and received the mort- elected to hold under the tliird mort- gage, under that name. Poraeroy v. gage, that he should contribute to the Latting, 2 Allen, 22L CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 141 only one of the two mortgagees was made party, and it did not appear that tlic other appeared or was served wiili process ; though the bill was taken as confessed and a sale decreed, the decree was reversed.^ So where the purchaser of land, owned by several persons, gave separate mortgages to secure the several shares of the purcliase-money, each including the whole land purchased, and all simultaneously executed and delivered ; held, the holder of one mortgage could not file a bill for the foreclosure of his mortgage alone, unless the hold- ers of the others should refuse to join with him ; and upon such refusal, he should file a bill, making them defendants, and setting forth all the circumstances attending the execu- tion of the mortgages.^ So where a mortgage is made to secure several notes, and the holder of the one which matures last files a bill for foreclosure, he must cither allege tiiat the others are paid, or make the holders of them parties. If the notes are payable to different persons, a bill, filed by one not the mortgagee, must distinctly allege that he holds all of them.3 § 16. And one of several mortgagees or assignees of a mort- gage, who hold mortgage notes, may join the others with him in a suit upon the mortgage, upon giving security for costs. It is doubtful whether he could maintain such suit alone* § 17. Non-joinder of joint mortgagees in a suit for foreclo- sure may be taken advantage of on the general issue, notwith- standing a statutory provision that " persons claiming the same premises as joint tenants, . had a single junior mortgage covering all of them, and appeared in each suit, and at the references and sales, and tliere was a surplus ; it was held, that he was entitled to have the surplus paid into court, and a reference in each suit, and that he must be paid his taxable costs.^ § 60. Where a prior mortgagee brought a bill to foreclose, to which a subsequent purchaser from the mortgagor, who had given a mortgage for the purciiase-money, was made party ; a bill by the plaintiff's mortgagor, as mortgagee in the second mortgage, to foreclose, was held unnecessary ; and tlie solicitor, by whom both were filed, was ordered to elect in which suit he would proceed, and the other was dismissed.^ § Gl. Where, in a suit by a first mortgagee against the mortgagor and second mortgagees, the usual decree has been made for successive foreclosures, before the plain'tifif can obtain an order for foreclosing the mortgagor, he must obtain an order for absolutely foreclosing the second mortgagee* § 62. The owner of land, bound by a judicial mortgage, hav- ing taken advantage of the bankrupt act, one of his creditors, holding a prior mortgage, filed a bill in the United States Dis- trict Court, to correct a description of the land in his deed, giving notice to the assignee of the bankrupt, but not to the subse- quent mortgagee, and ol)tained a decree to reform his mort- gage ; afterwards, on the application of the plaintiff, of which notice was given to the second mortgagee, the Court ordered that all otiier mortgages on the land l)e cancelled, and the land 1 Hall V. Ciisliman, 14 N. II. 171. =» Wendell r. Wendell, 3 Paige, 509. 2 femack i;. Duncan, 4 Sandf. Ch. ■• Wliitbred l. Lyall, o'J Eng. Law & 621. Eq. 174. 160 THE LAW OF MORTGAGES. [CH. XXXI. sold, at which sale the plaintiff purchased it. Held, he was entitled to the property as against the second mortgagee. ^ § 63. Where subsequent mortgagees are parties to a bill, and, after decree for a sale, the sale is stopped, on payment of interest and costs ; such mortgagees cannot avail themselves of the decree, except by supplemental bill.^ (a) 1 Fowler v. Hart, 13 How. 373. Rankin v. Reformed, &c., 1 Edw. 20. (a) If a decree to which the junior mortgagee was not a party, foreclosing a senior mortgage, is too large, he may allege the fact in his bill to redeem, and the mistake may be corrected. Strang v. Allen, 44 111. 428. A subsequent mortgagee, after with- drawing a bill for foreclosure, cannot object to a bill by a prior one, on the ground that he is made a party. Van- deveer v. Holcomb, 2 Green, 87. A junior incumbrancer, not made a party to the foreclosure of a prior mortgage, has a right to redeem as against a purchaser at the foreclosure sale and one redeeming from that sale. Strang v. Allen, 44 111. 428. More especially a purchaser at a foreclosure sale, or the grantee of such purchaser, with notice that the holder of a subsequent mortgage had not been made party, takes the title sub- ject to the right of such holder to re- deem. Hoppin V. Doty, 22 Wis. 621. But the latter must reimburse a person who has redeemed the mort- gage all the money that he has been compelled to pay, with interest. Strang V. Allen, 44 111. 428. A non-resident subsequent incum- brancer, made defendant to a foreclo- sure suit, cannot attack the judgment for any irregularity, unless he shows that he is himself injured thereby. Young V. Schenk, 22 Wis. 556. Wliere a prior mortgage is barred by the statute, the second mortgagee may intervene in a suit to foreclose brought by the first, set up the statute, . and secure a priority. Lord v. Morris, 18 Cal. 482. A., a first mortgagee, had obtained a decree of foreclosure against B., a second, and the time limited for re- demption had expired. The record of the decree found that legal service had been made on B.,but in fact none had been made, and he had no actual knowl- edge of the pendency of the suit until after the time of redemption had ex- pired ; and he would have redeemed if he had known of the decree. On a bill to redeem, held, the decree was not a bar, as a judgment at law would be a bar to a suit at law ; but, -without impugning the decree, the Court could, for equitable reasons shown, allow a further time for redemption. Bridge- port V. Eldredge, 28 Conn. 556. Parties joined as subsequent incum- brancers only are not affected by the cause of action which seeks a personal judgment against the mortgagor ; and, in such cases, since the repeal of the (Wis.) statute to the contrary, no such judgment can be rendered. Jesup v. City Bank, 14 Wis. 331. A mortgagee, seeking to foreclose a first mortgage, is not bound to tender redemption of a second mortgage. Harshey v. Blackmarr, 20 Iowa, 161. A second mortgagee may maintain an action to foreclose against one who holds the first mortgage and also the equity of redemption. Kilborn v. Rob- bins, 8 Allen, 466. An agreement, in a foreclosure suit, between the complainant and the mort- CH. XXXI.] FORECLOSURE, ETC. PARTIES. IGl § 64. Ill suits to foreclose, bivjught by subtn'quent mort- gagees^ the question has often arisen, whether the prior in- cumbrancer shall be made a party. («) It has been held in gagor, that tlie suit sliall cease, on pa}-- mcjnt of tlie claim wilii costs, can iiave no effect on tlie rij^lits of a mortj^agec defendant. Young v. Young, 2 Green (N. J.), IGl. (a) See Ford v. Rackhara, 23 Eng. Law & Eq. 622. Somewhat analo- gous to a prior mortgage, is the incum- brance of an easement existing at the time a mortgage is given. Thus A. mortgaged land to B., after granting an easement thereon to C, and B. fore- closed. Held, the mortgage passed the title, subject to the easement, and the sale on foreclosure did not extinguish the easement, the grantee not being a party to the decree. Combs v. Stew- art, 10 B. Mon. 403. So, where lega- cies constitute a prior incumbrance on land mortgaged, the legatees must be made parties to a bill for foreclosure and sale. Otherwise, it seems, in case of technical foreclosure. M'Gown v. Yerks, 6 John. Ch. 4.50. A. sold land to B., taking B.'s notes for the purchase-money. C. bought the land from B., assuming to pay B.'s notes, and mortgaging the land to B. to secure such payment. Held, in B.'s suit to foreclose against C, A. should be made a party, so that the Court might direct a proper payment among the parties, and the judgment bind all parties having interests ready for en- forcement. Merritt v. Wells, 18 Ind. 171. A first mtjrtgagee was made party to a suit brought to foreclose a second mortgage, the bill alleging " that he had or claimed some interest in the premises." The usual decree, barring the defendants of their rights, was rendered, and the second mortgagee bought at the foreclosure sale. The first mortgage had been assigned when the suit was brought, but the assign- ment had not been recorded, and the second mortgagee had no notice there- of. Held, the rights of the first mort- gagee and his assignee were not barred. Strobe v. Downer, 13 Wis. 10. An action brought to foreclose a mortgage on several lots cannot have the operation of an ejectment as to a lot to which a party in possession under a prior mortgage has set up in answer, and proved a paramount right to such possession. Koche v. Knight, 21 Wis. 324. See I'elton v. Farmin, 18 Wis. 222. One made party to a foreclosure suit, expressly to cut off any claim ac- cruing to him on the premises subse- quent to the date of the mortgage sued on, and who suffers default, is not thereby barred from any of his rights under a prior mortgage. Straight v. Harris, 14 Wis. 509, An admitted prior mortgagee is not a necessary party; and, if joined, and if his interest devolves on another pend- ing the suit, the latter need not be called in. The decree does not affect his lien. Hancock t;. Hancock, 22 N. Y. (8 Smith) 508. A mortgage is not affected by a de- cree of foreclosure of a subsequent one, although the prior mortgagee was made party, when no special allegations were made of facts which would give the latter equitable precedence. The va- lidity of the prior mortgage was not in issue. Dawson v. Danbury, l.j Mich. 489. A bill to foreclose, brouglit by a second mortgagee, making a first mort- gagee and the owners of the equity of redemption defendants, is as against him a bill to reileem. Ilundit v. Nash, 1 Green (N. J.), 550. In proceedings to foreclose a junior 11 162 THE LAW OF MORTGAGES. [CH. XXXI. Tennessee and Indiana, that the second mortgagee need not make tlie first a party to iiis bill, because his title is not af- fected by the proceedings.^ In Kentucky, he must be made party, and become such, even after an interlocutory decree for payment at a future day.- In New York, the Court remark: " It is a general rule, that, besides the parties to the mortgage, those only are proper parties to a suit for its foreclosure who have, subsequent to the mortgage, acquired rights or interests under the mortgagor or mortgagee. The plaintiff may also make prior incumbrancers parties to the bill, for the purpose of having the amount of such incumbrances liquidated and paid out of the proceeds of the sale ; or he may, at his option, have the premises sold subject to such prior incumbrances. The object of the bill is to vest in the purchaser under the sale made by virtue of the decree of foreclosure, the same title which the mortgagor had at the time of the execution of the mortgage."^ In Maryland, if the prior mortgage is due, it is held, after some conflicting decisions, that the prior mort- gagee is a necessary party .^ In Wisconsin, he is held to be a proper party .^ § 65. Where a bill to foreclose a second mortgage does not make the first mortgagee a party, a sale under such bill will not pass an absolute title ; and the purchaser may set aside the sale, on the ground of mistake as to the title. ^ § QQ. Where the first mortgagee is nojt made party to a suit for foreclosure of a second mortgage, the purchaser will take subject to the first mortgage, and cannot enforce payment of 1 Minis V. Mims, 1 Humph. 425; * Wylie v. McMakin, 2 Md. Ch. Wright V. Bundy, 11 Ind. 898. See 413. Western, &c. v. Potter, 1 Clark, 432 ; 5 Person v. Merrick, 5 Wis. 231. ■ Caldwell v. Taggart, 4 Pet. 190. 6 Shiveley v. Jones, 6 B. Mon. 2 Clark V. Prentice, 3 Dana, 468. 274 ; Roll v. Smalley, 2 Halst. Ch. 8 Per Harris, J., Holcomb v. Hoi- 464. comb, 2 Barb. 23. mortgage, parties who held a prior they asked to have decreed a prior lien, mortgage, made to indemnity them as Held, sufficient, that they had taken indorsers, were made defendants, ap- up the notes by the proceeds of new peared, and set up, by way of cross- notes of their own, whether paid or bill, that they had paid money on not. Stedman v. Freeman, 15 Ind. account of such indorBements, which 86. CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 163 it by the mortgagor, till he has exhausted his remedy against the laiid.i § 07. If, after such sale, the mortgagor pays the first mort- gage, he will 1)0 subrogated to the rights of the first mortgagee against the laud.^ § G8. Though a second mortgagee may file a hill of foreclo- sure against the mortgagor and a third mortgagee, without making the first mortgagee a party, a second mortgagee can- not file a bill to redeem the first mortgage, without making the mortgagor a party .^ § G9. Where a bill was filed to foreclose a mortgnge, making other persons than the mortgagor parties, charging that one of them had given a prior mortgage on the same premises, which he had since paid, but caused to be assigned to one of the other defendants for the purpose of keeping it alive against the complainant's mortgage, and asking that it be decreed to have been satisfied ; but tiie bill did not show any privity of title to the land between the parties to the first and the parties to the second mortgage, or what was the state of the title at any time, or any obligation on the part of the first mortgagor which would entitle the second mortgagor, or his assigns, to require him to pay or remove such first mortgage : held, the bill showed no title to relief as against the parties to such first mortgage.^ § 70. A mortgagee may make prior incumbrancers parties to a suit for foreclosure, and have a decree for a sale of the land free from all incumbrances.^ He may pray for a sale subject to the prior mortgage ; or that he may be allowed to redeem, and have the premises sold, to pay the redemption ' money and his own mortgage ; or that they may be sold, the prior mortgagee consenting, and the incumbrances paid ac- cording to priority. Such consent may be shown by the first mortgagee's putting in the prior mortgage, or by his answer.*' 1 Vaiulerkemp v. Shelton, 11 Paige, * Wright v. Dudley, 8 Mich. 115. 28 ; Finley v. Bank, &c., 11 Wiieat. 304. ^ Vanderkemp v. Siieltoii, 11 Paige, 2 Vaiiderkeiiip v. Shelton, 11 Paige, 28. 28. « The Gihon v. Belleville, &c., 3 8 Rose V. Paige, 2 Sim. 471 ; Kith- Ilalst. Ch. 531. Ace. Persons v. Alsip, ards V. Cooper, 5 Beav. 304 ; Coote, 576. 2 Cart. 67. 164 THE LAW OF MORTGAGES. [CH. XXXI. § 71. A second mortgagee filed a bill against the mortgagor and subsequent mortgagees, not making the first mortgagee a party. It was contended by a fourth mortgagee, a defendant, that he should have been made a party, in order that he (the fourth mortgagee) might redeem all the mortgages, without exposure to another suit. But the objection was overruled.^ § 72. A bill to foreclose a mortgage showed that there was a prior incumbrancer, who was not made a party. The answer denied it, and alleged that he had been paid. The defendant also demurred, for want of proper parties. Held, that, as the answer showed that the debt of the prior incumbrancer had been paid, there was no necessity of making him a party, not- withstanding the allegation in the bill, but that a general de- murrer, without answer, would have been sustained.^ § 73. ]n a suit to foreclose, subject to a prior mortgage, the holder of which was not made party, a receiver of the rents was appointed, and afterwards appointed receiver in a subse- quent suit by the prior mortgagee to foreclose. Held, such prior mortgagee was entitled only to so much of the rent in the possession of the receiver, as had come to his hands sub- sequently to his appointment in the second suit, although the proceeds of the mortgaged premises were insufficient to satisfy the prior mortgage.^ § 74. A subsequent mortgagee may maintain a bill to re- deem a prior mortgage, although he has previously foreclosed the equity of redemption, without making the first mortgagee party to the former suit.^ § 75. Bill by a subsequent mortgagee against the mortgagor and prior mortgagees, neither admitting nor denying the prior mortgages, but praying that the mortgagor be decreed to pay the plaintiff's mortgage, or else all the defendants barred and foreclosed, the premises sold, and the plaintiff paid from the proceeds, and for further relief. Held, a demurrer by a prior mortgagee should be allowed.^ § 76. Redemption will be decreed according to the priorities of the claimants ; that is, if there are several mortgagees, the 1 Richards v. Cooper, 5 Beav. 304. * Farwell r. Murphy, 2 "Wis. 533. 2 Gayle v. Toulmin, 5 Ala. 283. ^ The Gihon v. Belleville, &c., 3 3 Howell V. Ripley, 10 Paige, 43. Halst. Ch. 531. CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 165 Court will decree in detail, tliat the second shall redeem the first, the third the second, and so on.' (a) § 77. Incumbrancers and assignees of the equity of redemp- tion, subsequent to the filing of the bill, are affected by notice, having taken pendente lite?' § 78. Where a second mortgagee brought a bill to redeem the first mortgage, and the Court postponed the second mort- gage on account of misrepresentations made by the plaintiff, thereby letting in and giving priority to a subsequent mort- gage to the defendant of a part of the land ; held, the plaintiff could not proceed under the bill for the redemption of the subsequent mortgage, nor could the bill be amended for that purpose.^ The Court say : * " We have considered the posi- tion, that this case was in a court of equity, and that the postpajiement of the plaintiff's second mortgage was merely because equity required it ; and hence it was argued, the Court would see that no injustice is done to the plaintiff by such postponement, beyond giving the defendant adequate security for the money due on his second mortgage. But the same rule of postponing would have been held at law. Estop- pels in j^ciis are effectual in courts of law as well as in courts of equity. Tiie finding of the jury has placed the defendant's second mortgage as the prior mortgage, and all the conse- quences incident to it must follow." As to the motion to amend, the Court say: "This motion comes at a very late stage of the proceedings in this case. The plaintiff forbore to tender any thing on the second mortgage ; forbore to offer in his bill to redeem it ; and forbore to ask an amendment upon the coming in of the defendant's answer, setting up this mortgage and his entry for foreclosure ; relying rather upon his legal rights to defeat it wholly. The effect of an amend- ment, so far as respects the second mortgage of the defendant, would be to make a new bill. It would be an offer to redeem, 1 Arcluleacon v. Bowes, McClel. 153. ^ i>].itt v. Squire, 5 Cush. 551. 2 Coote, 57y. * Ibid. 550, 557. (n) Upon a bill for foreclosure .ind validity, order of priority, and amount sale, all the subsequent incumbrancers due upon the several mortgages, must are necessary parties ; and, to effectu- be decided. Vandeveer v. Ilolcomb, 2 ate a complete decree, the existence, Green (N. J.), 87. 166 THE LAW OP MORTGAGES. [CH. XXXI. first made some three or four years after tlie foreclosure had been perfected, if it is so at all. If not, thei; the plaintiff may file a bill offering to redeem it, which is all we could grant by the proposed amendment." § 70. The purchaser of a mortgage term of 200 years, created out of and determinable with the estate of a tenant for life, filed a bill to redeem a prior mortgage term of 1000 years, limited by the tenant for life under a power. Held, the tenant for life was a necessary party to the bill, though having a mere nominal interest.^ § 80. By a practice recently adopted in England, mortgages may be foreclosed by means of a claim, so called, (a) Some questions have arisen as to the proper parties in this mode of proceeding, where there are successive mortgages. In Smeathman v. Bray ,2 the Vice-Cliancellor said : " As this was a claim, and tliat form of proceeding did not give the plaintiff any discovery from the mortgagor as to the exist- ence or non-existence of subsequent incumbrances, which might create a defect in the title to be acquired under the decree, he should in this case, and in all cases of foreclosure by claim, give the plaintiff the option either of taking an in- quiry before the Master as to other incumbrances, suspend- ing the final decree until the report, or of taking the common decree of foreclosure in the first instance." § 81. Upon a claim by an equitable mortgagee against the mortgagor, asking for a sale, and that the several other mort- gagees might be summoned before the Master, or that a decree might be made to ascertain the mortgages and their priorities, the Court refused the order. Romilly, M. R., says : "The relief asked is direct against all the mortgagees. Were I to make the decree, it might affect several absent parties. I think, therefore, that I cannot, in the presence of one de- fendant alone, make any such order. The claim may be amended." ^ 1 Hunter ?'. Macklew, 5 Hare, 238. 3 Burgess v. Sturgis, 8 Eng. Law & 2 8 Eng. Law & Eq. 46; Robinson Eq. 270, 27L V. Turner, 7 Eng. Rep. 138 ; Caton v. Reeves, 15 Eng. Law & Eq. 334. (a) See Jacobs v. Richards, 23 Eng. Law & Eq. 436. en. XXXI.] FORECLOSURE, ETC. — PARTIES. 167 § 82. With respect to tlie pi'Oi)er parties in case of remdindcr^ it has been held, that, if the equity of redemption is limited to uses, the remainder-man may file his hill to redeem, but he must give the first tenant for life and intermediate re- mainder-men an option of redeeming according to their pri- orities.^ In New York, the only necessary parties are the person holding the first vested estate of inheritance, and those holding prior interests ; and the decree will bind remainder- men. ^ § 83. As to the necessary parties to a snit after the death of mortgagee or mortgagor ; the rule varies accordingly as one or the other has deceased, and also as the suit is brought by or against the representative of the deceased party, (a) § 84. It has been seen (ch. 11) that a mortgage before fore- closure is considered personal property, and goes to the per- sonal representative of the mortgagee. Hence in a bill to foreclose, more especially before possession taken, the heir need not generally be made a party ;'^ nor can he maintain such bill.* In a bill to' redeem, the personal representative of the mortgagee is a necessary party .^ So, where a mortgagee, or one for the security of whose debts or responsil)ilitics a deed of trust is given, dies, his personal representative is an indis- pensable party to a bill for the foreclosure of the mortgage, or 1 Raffety v. Kinp, 1 Keen, 618. Dexter v. Arnold, 1 Sumn. 109. See 2 Eagle, &c. V. Cammet, 2 Edw. Ch. Herrick v. Mann, 2 Ilalst. Cli. 400. 127. 4 Koath I'. Smitli, 5 Conn. \Zi. 8 Kinna v. Smith, 2 Green, Ch. 14 ; & Guthrie v. Sorrcll, 6 Ired. Eq. 13. () In a bill to redeem, brought after closure. Mims v. Mims, 35 Ala. 23. the dcatli of the mortgaget', iiis ailmin- (d) Where a partner has mortgaged istrator is the only necessary defendant, liis ])rivate i)r()perty to secure a firm Copcland c. Yoakum's, 38 Mis. 349. debt, in a suit for foreclosure against (c) By statute, in case of sciVeyjja'as 170 THE LAW OF MORTGAGES. [CH. XXXI. bama, although the executor, &g., is held not a necessary party;' yet the reason is given for joining the executor, that it would be his duty to prevent a recovery for a larger sum than was due upon the mortgage, inasmuch as tlie assets in his hands would be liable to pay so much as might be unsatis- fied by a sale of the mortgaged property.^ (In the same State, where the heirs of a mortgagee are not made parties to a fore- closure suit ; a decree will not be reversed for this cause, the record not showing them to be material parties.'^) In Michi- gan, the executor, . Sliute, * Chamberlain r. Lycll, 3 Mich. 448. 4 Jones, Eq. 174. See Lee v. Parker, ^ Jackson v. Stanford, lU Geo. 14. 43 Barb. GU ; Fladland v. Delaplaine, <^ Lewis v. Smith, 11 Barb. 152. (a) As to parties in case of I'nsolv- came bankrupt ; held, his assignee need enri/, see Collins v. Shirley, 1 R. & My. not be party to a suit for foreclosure. G38 ; Singleton v. Cox, 4 Hare, 326 ; Steel v. Maunder, 1 Cal. 535. Ace. Kerrick r. SaffiM-y,7 Sim. 317. Where Chickering r. Fades, 26 III. 507. See a nu)rtgagor upon his marriage settleil Overall v. Ellis, 32 Mis. 322. the huul on his wile and issue, and be- 180 THE LAW OF MORTGAGES. [CH. xxxr. mortgagor. -C. died, and D. afterwards became bankrupt, and his assignees filed their bill, alleging the death of B., that A. was insolvent, and praying that the executors and devisees of B. might be decreed to pay, and for general relief, on the ground that the mortgagor had no title to the mortgaged premises, and that he was a bankrupt, which was known to the assignors, and concealed at the time of the assignment. A. demurred, on the ground that the bill did not show title in the complainants under C. to the mortgage. Held, the com- plainants claiming, not under, but in op'position to the assign- ment to C, their title in equity to the debt was unquestionable, nor was it any objection to the bill, that the representatives of C. were not made parties, or that no offer to reassign the mortgage was made in the bill.^ (a) 1 Pagan v. Sparks, 2 Wash. Cir. 325. {a) In a foreclosure suit, a defend- ant, with a paramount title to part of the premises, although the plaintiff may not be compelled to litigate such title, must be protected in his rights by the judgment, and cannot be ejected by a writ of assistance. Wicke v. Lake, 21 Wis. 410. AVhere a party succeeds in a fore- closure suit on his cross-bill, in which he sets up possession by the mortgagee, and prays tliat the possession may be surrendered to him as owner of the fee, and establishes an absolute and para- mount title ; a decree will be passed, requiring surrender of the possession. Lloyd V. Karnes, 45 111. 62. One who has a deed before, though not recorded until after, a foreclosure suit, but recorded before the sale, is not bound thereby, unless made a party ; especially after having given actual notice to the mortgagee before the sale. Green v. Dixon, 9 Wis. 532. Where, in such suit, one claiming the premises under a deed recorded before the mortgage, though made after it, was joined as defendant ; held, in order to avoid this title, the complainant must file his bill specially, with distinct aver- ments of the fiicts, or of any fraud claimed to invalidate such title. A general allegation, that such defendant claimed some interest in the premises " as subsequent purchaser, incum- brancer, or otherwise," is not suffi- cient. Wurcherer v. Hewitt, 10 Mich. 453. The defendant, under a decree of foreclosure, having an interest subse- quent to the claim of the complainant, filed a bill, with the object of having the benefits of the decree, and also to foreclose against other parties defend- ant, who should have been, but were not, parties to the first bill. Held, the bill was good as an original bill against the last-mentioned parties, and as a supplemental bill as to the others. Also, that a decree of ordinary foreclosure was sufficient, further sums having become due to the complainants in both the first and the second bills since the first decree. Griggs v. Detroit, 10 Mich. 117. A grantor, with a covenant against incumbrances, &c., was made defend- ant to an action to foreclose a mort- CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 181 § 113. It has been held, that, where tlie plauitifT in a suit upon mortgage is out of court, a decree may be rendered against one defendant on the application of another.^ § 114. The question has arisen, how far any controversy among the several defendants in a foreclosure suit, as to their respective rights and interests, shall delay or obstruct a decree of foreclosure. § 115. In Renwick v. Macomb,^ it was held, that the com- plainant in a foreclosure suit, although there was no question as to his lien upon the mortgaged premises, and his right to a foreclosure and sale for payment of his debt, could not obtain a decree of sale, until the conflicting claims of the other par- ties to the suit upon the equity of redemption were adjusted and settled. But it has been also held, that, in a suit to fore- close, defendants, whose claims are upon the equity of redemp- tion merely, cannot litigate their claims to the surj)lus, as 1 Arclicleacon v. Bowes, M'Clel. 149. 2 1 Hopk. 277. gage, which was a lien at the time the deed was executed; but, he having .demurred, tlie plaintiff (hscontinued as to liim, and took judgment of fore- closure and sale against his grantee and others who had not answered. The grantor applied to vacate the judgment, and permit him to defend, with tlie same rights as if the cause had not been discontinued as to him. Held, the petition was properly granted, as otherwise he would have been cut off from all defence in an action upon his covenants. Stanley v. Goodricli, 18 Wis. u()5. A decree of foreclosure and sale, made on a cross-petition by a defend- ant seeking relief against a co-defend- ant, who has not been made a part}^ to the cross-petition, or been served with process, and wiui has not answered it, is void. jNIiller v. Cravens, 2 Duv. 246. An answer of a part_v to a bill of foreclosure having, on demurrer, been held insufficient to postpone the plain- tiff's right, was allowed to stand as a statement of the defendant's interest as a subsequent mortgagee. Young i-. Thompson, 2 Kans. 83. One mortgagee, having been joined as defendant in a suit to foreclose brought by another, and after having set up his mortgage and prayed fore- closure in the usual way and for general relief cannot afterward object to a decree for such foreclosure. Benner V. Troughton, 17 Cal. 247. B., who was made a party to a fore- closure suit, as having, or claiming to have, some interest in the mortgaged premises, set up that he was owner of the property at tlie time of the execu- tion of the mortgage, and that the mort- gagor had no title. His claim was not litigated ; but by agreement a judgment for foreclosure was rendered, without prejudice to any adverse title in B. superior to the mortgage, and tiie premises were afterwards sold on fore- closure. Held, such judgment had no effect upon any claim ^of title by B. arising prior to the mortgage. Lee v. I'arker, 43 Barb. Gil. 182 THE LAW OF MORTGAGES. [CH. XXXI. between themselves, until it is ascertained that there will be a surplus, except where their claims are upon different })or- tions of the mortgaged premises. ^ And in the case of Far- mers', &c. V. Seymour,'^ Chancellor Walworth remarked : *' The result of such a practice generally was, that the mort- gagee was greatly delayed in the collection of his debt, by a useless litigation between the defendants in relation to surplus moneys which might be produced upon a sale of the mort-' gaged premises, before it was ascertained whether there would be any thing raised upon such sale, beyond the amount of the complainant's debt and costs. The 132d and the loGth rules of the Court were intended to change the practice in this par- ticular. Since whicli time, defendants, whose claims are upon the equity of redemption merely, and who have no interest in the mortgaged premises adverse to the complainant's claim, are not permitted to delay his proceedings by a litigation of their claims to the equity of redemption with their co-defend- ants (The Union, &c. v. Yan Rensselaer, 4 Paige, 85)," un- less absolutely necessary to the protection of their rights. § 116. It has since been held, that, where a sale is ordered, and one defendant sets up equities against others, the decree may direct the Master to ascertain and settle such equities.^ § 117. Bill of foreclosure filed by the first mortgagee against the mortgagor and subsequent incumbrancers. There was a contest between the defendants as to the priority of their in- cumbrances, and the order in which they were entitled to redeem the plaintiff, one question being as to the effect of an assignment by a husband of his wife's reversionary interest in leaseholds. The plaintiff had not proved the defendants' securities. The plaintiff claimed the usual decree for redemp- tion or foreclosure against all the defendants. The several defendants insisted on their respective priorities. Sir John Romilly, M. R., says : " I cannot in this stage of the cause decide a question between co-defendants ; yet to exclude any of them, or to postpone their priorities, I must preface the 1 Union Ins. Co. v. Van Rensselaer, 2 9 Paige, 545. Ace. Miller v. Case, 4 Paige, 85. Ace. Fry v. Merchants', 1 Clark, 395. &c., 15 Ala. 810. 3 N. y. Life, &c. v. Cutler, 3 Sandf. Ch. 176. CH. XXXI.] FORECLOSURE, ETC. — PARTIES. 183 decree with a declaration of their rights. How can I possibly do that without giving them an opportunity of meeting the case made against them ? If the plaintiff had raised the question, the defendants might have mot it, and as between them, the question might have been determined ; but, as be- tween the defendants themselves, no issue could possibly have been raised. The ordinary course in such cases is, to direct •the Master to ascertain the incumbrances and their priorities, and when the report is made, the Court may determine any question between the defendants raised by that report ; that course must be followed in the present case." ^ 1 Duberly v. Day, 7 Eng. R. (1851) 188. 184 THE LAW OF MORTGAGES. [CH. XXXII. CHAPTER XXXIL FORECLOSURE, ETC., PLEADING, EVIDENCE, DECREE, ETC., IN SUITS ON MORTGAGES. 1. Pleading; allegations of the plaintiff and the defendant. 84. Set-off. 49. Evidence. 71. Judgment or decree. 74. In case of a debt payable by instal- ments. 109. For non-payment of interest. 111. Judgment may be rendered for all that is due at the time of rendering it. 121. Judgment in case of parties jointly interested. 131. Judgment at law may be framed to meet the equities of the case. 136. Amount of judgment, how de- termined. 141. Time allowed before final judg- ment. 144. Judgment or decree for a sale; time allowed to prevent such sale; equi- table apportionment among different es- tates, &c. 155. Injunction against waste. 156. Miscellaneous points of form. 160. Costs. 175. Receivers. § 1. The general rules oi pleading apply to suits upon mort- gages in law or equity. A few miscellaneous decisions upon this subject are found in the books, depending often, however, upon express statute or local usage, and therefore not of gen- eral authority or importance, (a) § 2. It has been held, that, in a writ of entry to foreclose a mortgage, the declaration must count upon the mortgage, and indicate a purpose to foreclose, rather than to get possession in order to take the profits.^ (^) § 3. An allegation, that the mortgagor was or pretended to be seised in fee-simple when he executed the mortgage, is a sufficient averment that he was in possession.^ 1 Fiedler v. Carpenter, 2 W. & M. 211. 2 Holman v. Bank, &e., 12 Ala. 369. (a) See Knowles v. Rablin, 20 Iowa, 101; Moore v. Titman, 33 111. 358. (h) Non-tenure is held a bad plea to such declaration, whether made by the mortgagor or any other defendant. Fiedler v. Carpenter, 2 W. & M. 211. See chap. 30; Fairbanks v. Isham, 16 Wis. 118. The complainant in a suit to fore- close can only recover on the case made by his bill ; not upon equities brought in by subsequent pleadings or evidence. Converse v. Blumrich, 14 Mich. 109. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 185 § 4. A bill for foreclosure need not aver title in the mort- gagor.^ § 5. A bill for foreclosure and sale must describe tlie land so particularly, that the officer selling may know it by the descrip- tion.' So it is held that there cannot be a decree for foreclosure , and sale without an exhibit of the deed, in order to identify the land.^ (a) And tlie complaint should also allege registra- 'tion of the mortgage* (]>') § 6. Where, in a suit to foreclose, copies of the subpoena and notice were served upon a subsequent purcliaser of a part of the mortgaged premises, but the name of the purchaser was not contained in either ; held, as against him all the proceed- ings subsequent to the filing of the bill were irregular.^ § 7. In Indiana, a bill to foreclose need not set out the mort- gage in hccc verba. A general statement of points to be proved is sufficient.^ In Illinois, in a scire facias for foreclosure, it is sufficient to set out a copy of the mortgage, with the certificates of acknowledgment and of record annexed, without averring that the mortgage was acknowledged or recorded, or a default of payment, if the mortgage shows it was due before the writ 1 Slied V. Garfield, 5 Verm. 89. 2 Wliittelsey t'. Beall, 5 Blackf. 143; 10 Ind. 2GL 3 Triplett v. Sayre, 3 Dana, 590. * Magee v. Sanderson, 10 Ind. 2G1. 5 L'Anioreux v. Vandcnburgh, 7 Paige, 31G. 6 Cecil V. Dynes, 2 Cart. 266. (a) In a suit for foreclosure, where the original mortgage is filed with the complaint, but not put in evidence, after the jury have found the amount due, the mortgage is before the Court for the ordering of a foreclosure, if war- ranted by the evidence. Brown v. Shea- ron, 17 Ind. 239. In a suit to foreclose, the mortgage and notes must in some manner be made part of the complaint ; not merely filed witli it. Hiatt v. Goblt, 18 Ind. 494. ■ A sworn statement of the amount due, filed by the mortgagee with his petition, after forfeiture and before the time of sale, is in compliance with Vol. 2, art. 'i, § 788, of the (Md.) Code. Brooks V. Hays, 24 Md. 507. [h) In a suit to foreclose against the mortgagor alone, it need not be averred in the complaint, that the mortgagor has not conveyed away the land, or that the mortgage has been acknowl- edged and recorded. Ferdue v. Ald- ridge, 19 Ind. 290. Where a mortgagor has not sold his equity, the complaint in the suit to foreclose need not allege the record of the mortgage. Culph v. Diillips, 17 Ind. 209. A failure to allege record, or notice, in a foreclosure suit against the mort- gagor's grantee, is cured by proof thereof without objection. Lyon v. Perry, 14 Ind. 515. 186 THE LAW OF MORTGAGES. [CH. XXXII. issued. 1 In Massachusetts, it has been hold that the declara- tion need not set forth the mortgage. By a late statute, it must allege a seisin in mortgage P' § 8. It has been held in Illinois, that, where a mortgage debt is payable by instalments, a scire facias must aver that the last is due.^ § 9. A bill for foreclosure need not allege, nor, if alleged, prove, an indebtedness for which the mortgage was given.^ (a) If a particular mode of paying the consideration is stated, the mortgagee may still rely upon the evidence of such payment arising from the mortgage itself.^ § 10. A mortgage note need not be made part of the bill, if produced subject to cancellation.'^ So the bill need not allege how the plaintiff became owner of the note.' But where the bill described the debt only by reference to the mortgage, and did not make the notes exhibits ; held, they ought not to be used at the hearing without proof.^ {h') § 11. Where a note was given by the mortgagor with others, it is sufficient to allege in the bill for foreclosure, that the mortgagor had failed to pay, and the estate thereby become absolute.^ § 12. A bill to foreclose, where the property is in the hands of a purchaser from the mortgagor, need not allege notice of the mortgage. If such allegation were required, it is sufficient to aver " a pretended purchase." ^^ 1 Mitcheltree v. Stewart, 2 Scam. ^ Knetzer v. Bradstreet, 1 Greene, 18 ; Emeric v. Toms, 6 Cal. 155. 382 ; Fenno v. Sayre, 3 Ala. 458. 2 Stat. 1852, 883. See Gen. Stat. l Fenno v. Sayre, 3 Ala. 458. 3 Day V. Cushman, 1 Scam. 475. » Harlan v. Murvell, 3 Dana, 180. 4 Day V. Perkins, 2 Sandf. Ch. 3.59. 9 Hollinger v. Bank, &c., 8 Ala. G05. 5 Kussell V. Kinney, 1 Sandf. Ch. 34. lo gtacy v. Barker, 1 Sm. & M. 112. (a) A. covenanted to pay the debts Held, sufficient, Avithout setting forth of the firm of A. & B., and to hold B. the particular debts, which had not harmless, and C. guaranteed the per- been named in the contract, or that the formance, taking from A. a mortgage payment was subsequent to liability to secure him. In a suit to foreclose, accrued. Dye v. Mann, 10 Mich. 291. C. alleged a payment "to the cred- {h) A complaint on mortgage notes, itors of A. & B." of .$1000, " as he neither containing nor accompanied by was obliged to do by the terms and copies of the notes or mortgage, is de- legal effect of the agreement," &c., "on murrable. Herren v. Clifford', 18 Ind. account of the default of the said A." 411. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 187 § 13. A statute re{]iiircs, in Indiana, that a bill for fore- closure shall state, whether any and what proceedings liavc been had at law for recovery of the debt. The omission of such statement is fatal to the bill. If there have been no pro- ceedings, the bill should so allege ; if otherwise, it should state what they were.^ In New York, if the bill alleges that there have been no such proceedings, and the defendant pleads and proves a judgment for part of the debt; the bill will be dis- missed, with liijerty to amend, if the remedy at law has been exhausted.^ § 14. A bill to foreclose must offer to pay sujierior incum- brancers, although it assumes that the comi)lainant's title is paramount.^ § 15. A surety, who has taken a mortgage for his indemnity, is not entitled to foreclose until he has paid the debt."^ There- fore, where the plaintiff in a bill to foreclose a mortgage, given to indemnify him against a note for $800, indorsed by him, and against three other notes subsequently indorsed, amounting to $300, averred that " he had been compelled to pay, and in fact had paid, on said notes, the proper debt and duty of the mort- gagor, the sum of $800 ; " this averment was held to be insufficient, not only with respect to the first note, for the whole sum paid might have been applied on the other notes, but with respect to the other notes also, as it only showed a payment to that amount on some one or more of them, with- out showing specifically on what note or notes the payment was made.^ § 15 a. In an action of foreclosure against an assignee of the mortgagor, an averment that the defendant took the land sub- ject to the mortgage is but a conclusion of law, and need not be traversed.*^ § 15 h. A complaint in foreclosure may pray to hold a sul> sequent puichaser as a trustee." § 10. If a part of mortgaged premises have been sold or 1 McMnllen )'. Furnoss, 1 Rmitli, 7.T. * Sbopard v. Slieprird, 6 Conn. 37. 2 Lovett V. The German, &c., 12 '' Hiid. Barli. f)7. 6 Wormouth r. Ilatcli, 33 Cal. 121. * P'enno i-. Sayre, 3 Ala. 458. "< De Leon v. lliguera, 15 Cal. 483. 188 THE LAW OF MORTGAGES. [CH. XXXII. foreclosed under a previous mortgage ; they may be excepted ill a bill to foreclose.^ (a) § 17. It is sufficient for a bill in equity by the mortgagor to allege a liquidation, tender, and refusal of the mortgage debt.2 § 18. A bill for redemption ought strictly to contain an offer to pay such sum as may be due on the mortgage. But if it does not, and no objection is made on this ground, the plaintiff may have leave to amend after a hearing.^ § IQ. A bill alleged that the mortgagor, before the uioney became due, tendered the same, which the mortgagee refused, 1 Sedam i7. Williams, 4 McL. 51. 2 Barton v. May, 3 Sandf. Ch. 450. 3 Green v. Tanner, 8 Met. 411. (a) Where a mortgage contained a stipulation for all the costs, including counsel fees, not exceeding five per cent of the amount due ; it was held, that an averment in the declaration that five per cent was reasonable coun- sel fees was unnecessary, as the counsel fees stipulated to be paid were not the cause of the action, but, like the costs, a mere incident to it, and might be fixed by the Chancellor at his discretion, not exceeding the amount stipulated. Car- riere v. Minturn, 5 Cal. 435. In a petition for foreclosure it was alleged that the mortgagee was dead; that the petitioner was one of his heirs; that the heirs divided his property, and agreed that the note and mortgage should belong to the petitioner ; and that they were then assigned and de- livered to her. Held, a sufficient aver- ment tliat the legal interest had been transferred to her. Held, further, the parties in interest assenting, and as no rights would be prejudiced thereby, she was entitled to a decree of foreclo- sure, upon furnishing the maker of the mortgage note indemnity against a lia- bility to pay it a second time. Babbitt V. Bowen, 32 Verm 437. Upon a petition, in a suit against a husband and wife, setting forth the ex- ecution of a note b3' him, and a mort- gage by both, as security, and praying that an execution may issue on the judgment against the land "according to law in such cases made and pro- vided," a decree for foreclosure cannot be properly rendered. Ballard v. Koons, 10 Iowa, 534. An averment in the complaint in a second action to foreclose a mortgage (brought against one who had purchased the land before the first suit), that the former suit was against the mortga- gor, means that he was the sole defend- ant. The complaint need not allege that the present defendants were not parties to that suit. State Bank v. Abbott, 20 Wis. 570. In a suit to foreclose, brought against a subsequent purchaser of the fee, the complaint must aver, either that the mortgage was on record at the time of his purchase, or that he then had notice of it. The recorder's certificate, pur- porting to be indorsed on the mortgage, and copied by the clerk in his transcript, stating the mortgage to have been duly recorded, is no part of the complaint, unless made an exhibit therein. Peru V. Hendricks, 18 Ind. 11. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 189 on tlic ground that tlicrc was no right of redemption, but made no objection that the dcl)t was not due ; and prayed for an account and redelivery of tlie property. Held, a sulTicieut offer to redeem, and pay whatever was due on the mortgage.^ § 20. Where redemption is claimed, on the ground of fraud, in not executing a bond of defeasance agreed upon, a reply, that such bond was executed, but by accident was lost, is a departure and (on demurrer) bad.^ § 21. It has been held, that a mortgagor may have a decree for redemption, without bringing the money into court or making a previous tender, if the mortgagee claims the pro|> erty absolutely, and resists the right of redemption.^ § 22. A bill in equity is not necessarily m id f if a )'io us, hGcause it seeks to redeem two distinct mortgages of different parcels of real estate. If two bills were filed, the defence would be the same ; and there seems to be no more reason why the plaintiff's two claims should not be joined in one bill, than why two notes of hand should not be joined in one declara- tion.'* § 2-3. A bill in equity, brought by the widow and adminis- tratrix of a mortgagor, to redeem the estate mortgaged, is not multifarious, because the plaintiff claims to maintain her suit in both capacities. The two demands are homogeneous in their character, and it is immaterial to the defendant in which capacity the plaintiff claims. It is a claim of the same thing, though under different titles.^ So a bill is not multifarious, because it seeks to foreclose a mortgage upon an entire tract of land, and asks a specific performance as to one half of the land, from the heirs of the vendor of the mortgagor.*^ (^s, a subse- To a suit to foreclose, brouj^lit hy qucnt purchaser of tlie i)reinises can- tlie assiiiiiee of the first and third of not plead usury. lie may however three mortgage notes, an answer, that show, under proper pleadings, that the the assignee of the second had had debt has been paid wholly or in part judgment on it, and foreclosure, no by tlie mortgagor from the rents, and record of which judgment was filed can hold the mortgagee liable for neg- with or made part of the answer, is lect to collect rent upon the leases as- bad, on demurrer. Severson v. Moore, signed to him, if by due diligence the 17 Ind. 231. amount thereof could have been made. The answer to a bill to foreclose a Huston r. Stringham, 21 Iowa, 30. purchase-money mortgage cannot pray In an action to foreclose a mortgage any thing but that the bill be dismissed ; given to the plaintifT"'s assignor in 18o7, any other relief or discovery must be to secure a note for S3000, witli interest sought by a cross-bill ; as, the fairness at the highest rate allowed by law, the and validity of the sale and the con- mortgagor answered, that the sole con- tract on which the title was founded, sidcration was a loan of S2000 ; that Miller v. Gregory, 1 Green (N. .J.), 274. lie had paid certain amounts as interest Under a plea of mtl disseisin and thereon, and had executed his note to payment, to a writ of entry to foreclose, the plaintiff in 1860 for SIOOO addi- the defendant cannot deny his posses- tional interest, and secured the same sion. Richmond v. Woodruff, 8 Gray, by mortgage on the lands ; and that a 447. suit was pending in the United States In a suit to foreclose a trust deed, a court for the district of Wisconsin, defendant, who asks simplj' that prop- brought by the plaintiff to foreclose erty received by the complainants on the second mortgage, in which the their debt should be applied in jiayment mortgagor had set up the facts alleged pro tanto, need not file a cross-bill. Ed- in this answer as a defence. After- gerton v. Young, 43 111. 4G4. wards, the mortgagor asked leave to An answer to a bill to foreclose, file a sui)plemeiital answer, alleging that the contract is usurious, means that the United States court had dis- that the contract is in violation of the missed the suit, and hnd found that his statutes of the State, and must be so answer therein was true. Held, these limited. Atwater i'. Walker, 1 Green facts would estop the plaintitf upon the (N. J.), 42. question of usury ; and that the Circuit Pleas of usury and non est factum Court erreti in refu.iing leave to file cannot be interposed against a fore- such answer. Van I'elt i;. Kimball, 18 closure hy ^scire facias. Camp v. Small, Wis. 302. 44 111. 37. Where, in a suit for foreclosure, a Under § 1742 of the (Iowa) Code of junior mortgagee, joined in the courso 1851, an answer in a foreclosure suit, of proceedings, files an answer which alleging usury, uncontradicted, must raises a separate issue betwixt himsalf VOL. II. 13 194 THE LAW OF MORTGAGES. [CH. XXXII. § 27. A pica of nul tiel record to a scire facias on a mort- gage is a nullity. 1 § 28. Where the answer sets up a mortgage upon the whole land, the defendant cannot before the Master set up another title to a moiety of it.^ § 29. Where the defendant, in a writ of entry on a mortgage, pleads the general issue, and the only question raised is, whether a certain payment was made, which question, by con- sent, is left to the jury, and upon their finding in the negative a general verdict rendered ; upon a hearing in chancery to settle the amount due, such verdict is not evidence.^ § 30. Where one' of two joint and equal owners contracts to sell and convey the whole to two other persons, and both own- ers afterwards convey the whole to one of the purchasers, taking back a mortgage for the price ; the other purchaser can set up the contract above mentioned as a defence against the foreclosure of any more than one-fourth of the land.^ § 31. Where the mortgagor's answer denies delivery of the mortgage deed ; this does not overcome the presumption aris- ing from the plaintiff's possession of a deed, duly recorded.^ 1 Trear v. Drinker, 8 Barr, 520. ^ Commercial, &c. v. Eeckless, 1 2 Gordon v. Lewis, 2 Sumn. 143. Halst. Ch. 650. See Brown v. Wood- 3 Batchelder v. Taylor, 11 N. H. 129. bury, 5 Ind. 254. * Stone V. Buckner, 12 S. & M. 73. ■and the mortgagor, and entitles tlie lat- fendant, a second mortgagee, agreed ter to demand time for rendering his that the sale should be had without •answer, but which does not make or prejudice to the defendant's right to tender any issue on the complaint, and file his answer and present his defence, .does not pray for any relief as against Held, the decree was no bar to the the plaintiff; the defendant has no right right secured by the agreement ; and to claim a. delay of judgment on the that the defendant's lien was not lost .claim of the plaintiff. The Court can by the judgment, being saved by the decree a sale for the benefit of the agreement, although it contained a plaintiff, and take such order as to covenant, that the plaintiff" should be the surplus in the hands of the officer, responsible for all moneys adjudged ■as to secure an application thereof for due to the defendant on his mortgage, the benefit of the junior mortgagee, Clason v. Shepherd, 10 Wis. 356. in case he should recover judgment, In cases of foreclosure, where a de- >without prejudice to the riglits or in- fendant fails to answer within the time terests of either party. Meredith v. prescribed by the court, a final decree Lackey, 16 Ind. 1. cannot be made, but a decree ?<«/ must After an order pro confesso in a fore- first be given. State of Missouri v. ■closure suit, the plaintiff and one de- Evans, 1 Mis. 698. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 195 § 32. Where a defendant, in a suit to foreclose, sets up an absolute title, subject only to the plaintiff's mortgage, or a lien prior to all otiicr liens, except the mortgage set forth in the bill, the decree will be conclusive against the plaintiff, as to any other claims he may have, if h(^ neglects to file a rep- lication, and litigate the question in the usual manner; and he should, in such case, amend his bill, setting up all his claims and incumbrances upon the premises.^ § 33. On a bill to foreclose, the defendant set up an agree- ment, by which the complainant was to receive a conveyance of part of the mortgaged premises, in discharge of the mort- gage and debt, and alleged a tender of a deed pursuant to the agreement. Held, this was sufficient to show that the com- plainant was not entitled to relief; but, to obtain a specific performance of the agreement, the defendant must file a cross-bill.2 § 34. Questions of set-off have not unfrequently arisen in suits upon mortgages, (a) § 35. A suit to foreclose is in rein, and not personal ; and it is held that an independent claim of the mortgagor against the mortgagee cannot be set off.^ 1 Tower v. Wiiitc, 10 Paige, 395. » Wliite v. Williams, 2 Green, Ch. 2 Tarlton v. Vietes, 1 Gilm. 470. 376. (a) See Allen r. Sliackelton, 15 Ohio A purcliaser took a deed with cove- St. 145. In a suit to foreclose a mortgage nants, and a separate writing from the forpurchase-money,thedeed containing vendor, covenanting against damages the ordinary covenants of seisin, &c., the from suits, &c., and mortgaged back to defendants may, under (Min.) Comp. secure the purchase-money. To a suit Stat., set up as a counter-claim a failure for foreclosure, the vendee pleaded in oftitle in whole or in part, and may have the nature of a cross complaint, aver- their damages set off. Lowry v. Hurd, ring heavy damages, costs in suits at 7 Min. 35G. law, which, together with large attor- In a suit for foreclosure, the defend- ney's fees, defendants were obliged to ant answered, that the mortgage notes pay. Held, no defence, as the defend- were given for land, on which were ants had failed to show that at the time unpaid liens for SjOO, created by the of tiie suit for foreclosure they had grantor, who was insolvent and unable actually paid any thing, or that the to discliarge them ; but, as it did not vendor was, or would probably become, state that the conveyance contained a unable to pay any damages, which covenant against incumbrances, the might be recovered on his covenants, answer was held insufficient. Case v. Miller v. Kigney, 10 Ind. 327. Wandel, 16 Ind. 459. 196 THE LAW OF MORTGAGES. [CH. XXXII. § 36. No set-off can be allowed undep the statutes in a suit to foreclose, which would not be pro})er in an analogous case, in a suit at law for the mortgage debt.^ § 37. The Court will not set off unliquidated damages, where they are very uncertain in amount, and where the de- fendant has an adequate remedy at law.^ Thus a defendant in a foreclosure suit cannot set off against the mortgage debt an unliquidated claim for damages upon an injunction bond made after the commencement of suit.^ § 38. Suit for foreclosure against a purchaser of the land subject to the mortgage. Held, the defendant could not set off a fraud committed upon him more than four years after the mortgage by one not the plaintiff, nor proved to be con- nected with him in the fraud.^ § 39. On a bill by the mortgagee to foreclose a mortgage given for a part of the purchase-money, against a subsequent purchaser of the equity of redemption, the latter cannot set off damages accruing from the breach of an agreement of the mortgagee made with a former owner of the equity, claiming under the mortgagor.^ § 40. Where a mortgagee agreed, at the time of giving the mortgage, to release a part of the land in case it should be sold, and refuses to do so ; the damages thereby caused to tlie mortgagor cannot be set off against the debt ; nor will such damages be a subject of equitable set-off, unless the agreement specified what portion of the land should be released, or the refusal is unreasonable or unconscionable.*^ § 41. Where one person agrees to advance money to another, in consideration of which a mortgage is given, and a part of the money afterwards advanced ; he may maintain a suit for foreclosure, and it is no defence that the mortgagor sustained damage from not receiving the whole sum. The acceptance of a part was a waiver of any claim for such damage.'' § 42. But in a suit for foreclosure brought by the adminis- 1 Irving V. De Kay, 10 Paige, * Reed v. Latson, 15 Barb. 9. 319. * Vanhouten v. McCarty, 3 Green, 2 Hattier v. Etinaud, 2 Desau. 570. Ch. 141. 3 Thompson v. Ellsworth, 1 Barb. *> Warner v. Gouverneur, 1 Barb. 36. Ch. 624. ■^ Dart v. M'Adanot, 27 Barb. 187. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 197 trator of the inortl?-250 per animm), in part discharge of the incumbrance. C. then bought the incumbrance of A., and, with the assent of B., paid to A. the tw^o years' rent in horses, which sum was credited, and A. discharged from his lease, C. becoming lessee in his stead. Held, the credit for $500 should have been allowed in a decree to foreclose, and an account of the rents and "profits during C.'s occupancy, accruing subsequently to the expiration of the two years, should have been taken, but a reasonable abatement should be made on account of a sale of part of the premises by B. to D., to the exclusion of C.'* § 46. Under the Revised Statutes of New York, a set-off may be allowed in a foreclosure suit, of a debt due and pay- able when that suit was commenced. So of a judgment at law in favor of the defendant against the plaintiff. But not of a demand against the plaintiff as a surety for a third person, for which the defendant has sufficient security upon a fund of the principal.^ § 47. A set-off may be claimed by ansiver. A cross-bill is unnecessary.^ 1 Rawson v. Copland, 3 Barl). Ch. * Ballinj^er v. Worlcy, 1 Bibb, 197. 166. ^ Holdeii V. Gilbert, 7 Pniuc 208. '■^ Knappr. Burnliam, 11 I'aisre, 330. 6 Chapman r. Robertson, 6 Paige, 3 Vroom V. Ditmas, 4 I'aige, 52G. G27. 198 THE LAW OF MORTGAGES. [CH. XXXII. § 48. Where there arc several suits to foreclose, against one defendant, who claims a set-off" in each, exceeding the inter- est, he will not be compelled to elect to which he will apply it.i § 49. With regard to the evidence in suits upon mortgages, (a) proof of the execution, delivery, acknowledgment, and record- ing of a mortgage from a third person to the demandant, is sw^ciQwi, primd facie, to sustain a writ of entry to recover the land mortgaged.^ (6) {Infra, § 54.) § 49 a. It is held, that a technical variance between the mort- gage alleged and proved is immaterial.^ § 50. Where a mortgage is made to A. as guardian, and the notes simply to A., the variance is immaterial.'^ § 51. If a party attempts to set forth the condition of a mortgage in a suit for foreclosure, any variance is held fatal. But the bill may be amended.^ § 52. Where usury is set up to a bill for foreclosure, strict proof of the usurious contract alleged is necessary.*^ § 53. A debt payable on demand, and secured by mortgage, is due immediately. No previous demand is necessary to fore- closure. The commencement of a suit upon the bond, or for foreclosure in chancery, is equivalent to a demand.^ (c) 1 M'Lane v. Geer, 3 Edw. Ch. * Walker v. Sellers, 11 Ind. 376. 245. ^ Ames v. Ames, 5 Wis. 160. 2 Burridge v. Fogg, 8 Cusli. 183. « Richards v. Wortliley, 5 Wis. 73. 3 Hadley v. Chapin, 11 Paige, 245. 7 Gillett v. Balcom, 6 Barb. 370. (a) See Moore V. Titnian, 35111. 310. bis seisin to be in mortgage, alleges Hough V. Bailey, 32 Conn. 288. the making of the mortgage and an {h) A mortgagee, made party de- assignment thereof by the mortgagee fendant in a foreclosure suit, filed a to him, and his consequent seisin in fee, cross-bill, alleging that his mortgage is still bound, in the absence of any was prior to the complainant's lien; rule of court, to prove the signatures the complainant in his petition having of the mortgage and assignment, al- averred nothing as to the priority of though not denied in the plea. Warner his lien. Held, an averment in his v. Brooks, 14 Gray, 109. replication, that his mortgage was re- (c) The plaintiff, in an action for corded prior to that of the defendant, foreclosure, must show that he has filed justified the admission of evidence to a notice of the pendency of the action, prove the fact. Clarke v. Bancroft, 13 by producing either the original notice, Iowa 320. witli proof of its having been filed in the A plaintiff, who, in a writ of entry office of the proper register of deeds, or to foreclose, instead of simply averring a copy of it certified by the register. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 199 § 54. A mortgage, duly ackiiowlcdgcd, is held sunicieiit evi- dence for the plaintiff.^ {Supra, § 49.) And production of the note and mortgage, with proof of service of summons, jus- tifies a decree of foreclosure on default.^ So the recital of in- debtedness in the mortj^agc is suflicient ^>>-/wi(? facie proof thereof in a foreclosure suit.^ § 55. In case of foreclosure without producing the mortgage, the objection is held to be waived."* And where a foreclosure has been decreed, due execution of the bond and mortgage will be presumed ; and a party, ui)plying for leave to come in and defend, must specifically state his objections to those securities, either upon his own oath, where the facts are within his knowledge, or supported by the affidavit of an informant.^ More especially, the execution will be presumed from the record in an appellate court.° § 56. Where a bill for foreclosure alleges the existence of the notes and mortgage, their execution may be proved invd voce at the hearing ; and a recital in the decree, that such proof was made, is sufficient, without setting out the evi- dence.'' § 56 a. In a proceeding to foreclose a mortgage, where the answer admits the execution of tlie mortgage and note, and does not deny that the amount claimed in the petition is due, there is nothing for the plaintiff to prove.^ But an admission, upon a bill for foreclosure, of the mortgage and personal secu- 1 Den V. Wade, 1 Spenc. 29L « In. Where upon the evidence it was left doubtful at what time possession was taken ; held, the defendant liaving failed to prove this defence, the action was not barred.^ § 70 e. A. and B. having contracted, A. to buy and B. to sell a tract of land, A. agreed to receive a deed of it, as soon as it could be conveniently executed, and to give a mortgage to secure the purchase-money ; accordingly, he executed and left with the agent of B. a mortgage, and B. cxcgutcd and sent to his agent a deed for delivery. In a suit to foreclose the mort- gage, A, cannot insist that it is without consideration.'"^ § 70 d. The plaintiff, in an action to foreclose, may intro- duce evidence of a former adjudication to defeat the defence, without specially pleading it, when the answer is not in the nature of a cross-bill.'* § 71. The judgment or decree in a suit upon a mortgage varies, of course, as the proceeding is at law or in equity, for foreclosure or redemption, (a) It has been seen, that by statutory provision, in some of the States, a court of law is authorized to render such judgment, as substantial justice between the parties may require ; and in chancery this power exists and is commonly exercised, without express authority to that effect, by the constitution and usage of the court itself. (6) 1 Bleidorn v. Abel, G Clarke (Iowa), 5. - Montgomery v. Cliadwick, 7 Clarke (Iowa), 114. 3 P'arniers', &c. v. Curtis, 3 Seld. 466. * Carleton v. Byington, 24 Iowa, 172. (a) In California, under Practice should save riglits claimed adversely Act, § 147, upon default in a foreclo- to the title mortgaged. Elias i'. Vcr- Bure suit, no relief can be given other dugo, 27 Cal. 418. than that prayed for. Raun y. Key- In Iowa, in the foreclosure of a nolds, 11 Cal. 14. niortgage,it is error to render a personal The clause in the decree, foreclosing judgment against a subsequent pur- the equity of redemption, is a useless chaser of the premises, who was not formula; the eflect of the decree in party to the mortgage or note. Carle- that respect is determined by the stat- ton i'. Byington, 24 Iowa, 172. See ute, and not by tiie form given the Grimmell v. Warner, 21 Iowa, 11. decree in any particydar case. Mont- In a suit for foreclosure of a mort- gomery v. Tutt, ib. 307. gnge, not accompanied by any agree- (b) A decree foreclosing a mortgage ment in writing to pay the debt, the 204 THE LAW OF MORTGAGES. [CH. XXXII. § 72. A conditional judgment, on a writ of entry to fore- close, is conclusive evidence of the amount then due on the mortgage, in a subsequent suit to redeem.^ 1 Sparhawk v. Wills, 5 Gray, 423. relief is confined to the property. But if the defendant appears and consents that a personal judgment may be ren- dered, the judgment is valid. Fletcher V. Holmes, 25 Ind. 4-58. ' In a proceeding •against a mort- gagor and subsequent incumbrancers for foreclosure, a decree was rendered that the mortgage be foreclosed, and that the defendants pay the amount found due, within twenty days ; and, in default thereof, that the premises be sold. Held, the decree was not one against the defendants personally, for which an action of debt would lie, but, in effect, alternative; that, if the money is not so paid, the premises shall be sold, giving the option to the subsequent incumbrancers to pay the money, or suffer a sale. Gochenour v. Mowry, 33 111 331. In a suit to foreclose a deed of trust in the nature of a mortgage, executed by B. to G., it was alleged that B. had transferred all her interest to F., under an agreement of F. to pay off the mort- gage debt. Process was duly served on B. and F., and final judgment ren- dered against them for the debt, together with an order of sale, and a furtlier order, that, if there should be a deficiency at the sale, the residue should be levied of the other goods, &c., of both mortgagor and vendee. The amount realized from the sale prov- ing insufficient, levy was made upon other land of F., and it was duly sold. Held, the judgment, so far as it affected F. personally, or her separate estate not included in the mortgage, was ab- solutely void, and that no title passed by the sale. Fithian v. Monks, 43 Mis. 602. Upon a bill in equity for the re- covery of a bond debt, either upon the bond itself or a mortgage given to se- cure the bond, the complainant may recover the full amount of principal and interest due upon the bond, though it exceeds the amount of the penalty. Long's Adm'r y. Long, 1 Green (N. J.), 59. Independently of the rule prescribed by the Supreme Court of the United States, 18th April, 1864, execution can- not issue, in a decree for foreclosure in chancery, for the balance left due after sale ; and this applies to the territorial court of Nebraska. Orchard v. Hughes, 1 Wall. 73. The court below, in decreeing a foreclosure and sale, having made no provision for any deficiency of the pro- ceeds to discharge the entire debt, the cause was remanded, with direction to modify the decree in this particular. Barron v. Kennedy, 17 Cal. 574. In Illinois, in scire facias to foreclose, the judgment must be in rem, and not against the person. Osgood v. Stevens, 25 111. 89. In Indiana, in an action for foreclo- sure, a personal judgment having been rendered against one of the mortgagors, the judgment was reversed in this par- ticular. Sullivan v. Whisler, 16 Ind. 200. A decree, where there are several defendants, that a sum certain is due on the notes, and for that amount, and for a special execution, and that the equity of redemption of the defend- ants, and of those claiming under them, be cut off", makes the judgment personal as against the maker of the note only, and is proper in form. Cooper v. Mil- CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 205 § 73. The decree as to the sale of mortgaged property ler, 10 Iowa, 532. See Chittenden v. Gossage, 18 Iowa, 157. In a foreclosure suit under (Wis.) Rev. Sts. of 1858, to wliich only the mort^ajjor is a party deftMidant, per- sonal judgment may be entered against liini for any balance of the debt which may remain after a sale. Sauer v. Stein- bauer, 14 Wis. 70. A bill to foreclose made all incum- brancers defendants, and asked for a money judgment for the deficiency from the sale, if any, against the mort- gagor alone. A sale was ordered, and "the defendant" was ordered to pay the deficiency. Held, this meant the mortgagor, and the other defendants could not complain of the judgment, even if erroneous. Baascn v. Eilers, 11 Wis. 277. In proceedings to foreclose a mort- gage given to a coi'poration in payment for its capital stock, a contingent judg- ment, rendered with that of foreclosure, that, if the proceeds of the sale be in- sufficient, &c., " the sheriff" specify the amount of such deficiency in his report of sale, and that the [principal defend- ant] pay the same to the plaintiff," is valid and sufficient ; and execution may be issued thereon, after the slier- itt"s report is confirmed, for any defi- ciency. Baird v. McConkey, 20 Wis. 297. Under (Wis.) Laws of 1862, ch. 243, § 3, judgment for a deficiency in fore- closure cannot be rendered in vacation. Burdick v. Burdick, 20 Wis. 348. The mortgagee, on assigning the note and mortgage, having given his bond conditioned that the principal and interest should be paid when due, judg- ment for the deficiency may be ren- dered against him and the mortgagor jointly, under the statute. Ibid. Where the judgment is against the mortgagor and incumbrancers, for a strict foreclosure, and that " the de- fendants " pay the sum due before a time fixed, and in default thereof be' barred, &c. ; this is not an absolute personal judgment against the incum- brancers, and they will not be entitled to a reversal upon ajipeal. Bean v. AVhitcomb, 13 Wis. 431. Where a petition for foreclosure de- scribes the premises .as " lot No. 43, and a part of lot No. 90," in a certain town, sold and conve^'ed to the defend- ant by deed of a given date, and there is nothing in the record to make the description more certain, a judgment hy default will be reversed. Pressley v. Testard, 29 Tex. 199. Where a mortgage contained the assent of the mortgagor to the passage of a decree for foreclosure, as author- ized by the (Md.) Code, Vol. 2, art. 4, § 782 ; held, a decree after default was within the law. Brooks v. Hayes, 24 Md. 507. Wliere, in a decree of foreclosure, it is recited that a defendant was duly served with process, it is prima facie if not conclusive proof of notice to the party of the foreclosure suit. Carpenter V. Millard, 38 Verm. 9. In California, a recital in a decree of foreclosure, that " the defendants above named, having been duly served with process, ... as appears by the proof of service of the process issued herein and on file in this action," &c., is conclusive in favor of jurisdiction over their persons. Sharp v. Brunnings, 35 Cal. 528. See 34 ib. 390. A decree by default, foreclosing a mortgage, is not erroneous, because it recites that the defendant was person- ally served with notice, when in fact he was brought in by publication as a non- resident. The misrecital is surj>lusage. Ireland v. Woolman, 15 Mich. 253. When the description of the land mortgaged contains a latent ambiguity, the Court, in an action to foreclose, may 206 THE LAW OF MORTGAGES. [CH. xxxir. should be regulated by analogy to sales made under exe- cution.^ (a) 1 Ohlliam V. Halley, 2 J. J. Marsh. 113. ^determine the boundaries. Doe v. Val- lejo, 20 Cah 385. A subsequent purchaser was made party to a suit to foreclose ; and, being a non-resident, notice was given by advertisement. He was defaulted, but afterwards the Court vacated tlie de- cree and let in his defence, with a pro- viso that the foreclosure sale should stand until the final hearing. Held, an order allowing a defence by answer imphed a full defence, and allowed him to show a right to redeem. Such a right being sliown, held, the redemp- tion must be limited to such interest as the<"omplainant owned at the date of the order opening the decree. Stone V. Welling, 14 Mich. 514. A defendant to a bill to foreclose filed a cross-bill, setting up an agree- ment as a prior equitable mortgage. Proofs were taken, and the cross-bill was dismissed. In another suit be- tween the same parties, the defendant claimed, that the dismissal was not a bar to setting up the agreement, for the reason that the cross-bill was not a proper proceeding, and was properly dismissed without regard to the merits. Held, it was of no importance, whether the matters set lorth in that bill were proper to be used in defence, or not; that a cross-bill, improperly filed, is not to be dismissed for that reason, if it prays affirmative relief, and a decision upon the merits based upon it is con- clusive. Farmers', &c., Bank v. Bron- son, 14 Mich. 361. Where a foreclosure has been de- creed, the mortgagor, until a sale, may, under the (Cal.) Practice Act, remain in possession, without leing account- able for rents or for use and occupation, and subject to no liability, excejiting that he may be restrained from waste. Whitney v. Allen, 'Jl Cal. 233. An omission, in a decree for fore- closure, to direct that the purchaser at the foreclosure sale shall be put in possession, is immaterial. The decree gives him a summary right to be put in possession, as against the mortgagor and all others entering in subordination to his right after suit brought. Horn V. Volcano, 18 Cal. 141. If an order of foreclosure is in sub- stantial compliance with (Te.x.) P. Dig. 1480, the improper insertion of a clause foreclosing the vendor's lien will be considered as surplusage. Goss v. Pilgrim, 28 Tex. 263. A judgment in foreclosure, giving the mortgagor the unauthorized right to redeem after sale, cannot be objected to on this ground by him. Smith v. Hoyt, 14 Wis. 2-52. In Illinois, a decree ordering an ab- solute deed to the purchaser, twelve months after the sale, is bad, as the statute allows judgment creditors fif- teen months to redeem. Rhinehart v. Stevenson, 23 111. 524. In an action for the foreclosure of two mortgages, one executed by the wife, a decree, that, if a sale took place to make the amount of the mortgage in which she joined, her interest should be barred, is correct. Weaver v. Cheeseman, 15 Ind. 510. A subsequent incumbrancer cannot object to a decree for a sale to satisfy a prior mortgage, even though erro- neous, unless he shows that the property will probably not bring enough to pay both. Jamison v. Gjemenson, 10 Wis. 411. (rt) A judgment in foreclosure may direct the officer who is to make the sale to execute and deliver to the purchaser "a certificate as required by law," without further specification. Walker v. Jarvis, 16 Wis. 28. In foreclosing a mortgage and en- forcing a vendor's lien, a judgment for CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 207 § 74. One question, which lias frequently arisen as to the form of decree, grows out of the fact, that the mortgage debt is made payable hy instalments^ only a j)art of which are due. (a) § 75. In general, a decree, to enforce payment of debts se- cured by mortgtige, should not include those not yet due.' (Ji) § 75 a. Where a statute provides, that in a suit for fore- closure judgment shall be rendered for the amount which may be due on such mortgage ; in case of' a debt payable by instalments, upon failure to pay one of these, resort must be had to a court of chancery for a provisional decree of fore- closure.^ § 70. Where the property was reported by a jMastcr to be indivisible, only one instalment being due at the filing of the bill, it was decreed that the defendants pay the instalments, due and not due in ninety days, or the whole property be sold. Held, the decree should have been, that the instalment due be paid, or the whole property sold to pay the whole debt.^ So, 1 King r. Longwortli, 7 Ham. 2d Part, 231. an order commanding the sheriff " to seize and sell " the property " accord- ing to law, and apply the proceeds to the satisfaction of this judgment," sub- stantially but not literally complies with (Tex.) P. Dig. 1480, directing the judgment to be for an order that he " sell " tlie property if found " as un- der execution." Bishop v. Jones, 28 tcx. 294. An objection cannot be raised to a decree of foreclosure, unless presented by the answer, that it directs the vari- ous parcels of land to be sold in the inverse order of their alienation by the mortgagor, when one of them was specially charged with payment of the mortgage by the mortgagor's deed. Ireland v. Woodman, 15 Mich. 253. In a suit for foreclosure, judgment was entered by default without inquiry as to the divisibility of the premises, although only part of the mortgage 2 Jones V. Lawrence, 18 Geo. 277. 8 Lacoss I'. Keegan, 2 Cart. 406. debt was due. On motion to set it aside, it was held, that the judgment should be reversed back to the default. Dale V. Bugh, 16 Ind. 233. (a) See Patton v. Stewart, 19 Ind. 233; Osgood v. Stevens, 25 111. 89. [h) A bill was filed to foreclose a mortgage, given to secure three notes payable at different dates, upon the first of which judgment had been re- covered. The bill stated this fact, and also "that the judgment remained un- paid in part;" but not that execution had been issued and returned unsatis- fied in whole or in part, neither did it distinctly ask a decree to the extent only of the other two notes, nor waive the claim upon the mortgage to the e.\tent of the first note. Held, under the (Mich.) statute, Comp. L. § 3509, the bill did not lie. Cooper v. Bresler, 9 Mich. 534. 208 THE LAW OF MORTGAGES. [CH. XXXII. where it is provided that the wliole debt shall be considered due, when any part is due, a judgment may be rendered accord- ingly ; but on payment of the amount due proceedings shall be stayed.^ So a mortgage to secure instalments was condi- tioned, that, upon default in one, the whole should become due at the option of the mortgagee. Held, the mortgagee must give notice of that option before suing for the whole. And a complaint, setting out the whole debt as the cause of action, and not averring an election by the mortgagee, and notice thereof, was held bad on demurrer.^ § 77. Upon this subject it has been said: " Under an ordi- nary mortgage of land for an aggregate debt, payable in in- stalments, the mortgagee, upon default in any payment, may enter or bring an ejectment, and retain possession of the whole, subject to an account for the profits ; because, the condition being indivisible, a failure to pay any part of the debt is at law a forfeiture." But it has never been adjudged, that for a failure to pay one of several instalments a court of equity would decree a conclusive foreclosure as to the whole prop- erty .^ So it has been held, that in a bill for foreclosure, where only one of several instalments is due, and the prop- erty is divisible, the decree should be for a sale of enough only to pay such instalment. A decree for sale of the whole, and that the proceeds be paid into court, to be applied to the nstalments as they fall due, is erroneous.^ More especially, where such course is unnecessary. And if such decree has been made, the Court, in its discretion, will regulate its exe- cution.^ § 78. In Indiana, by the Statute of 1831, where a mortgag^ was payable by instalments, a bill for foreclosure would not lie till the last became due.^ § 79. In Alabama, it is erroneous to order successive sales, as several instalments fall due. The decree should be for the 1 Allen V. Parker, 11 Ind. 504 ; Howe * James v. Fisk, 9 Sm. & M. 144. V. English, 6 Mis. 262 ; Wood v. Trask, ^ American, &c. v. Ryerson, 2 Halst. 7, 566. Ch. 9. 2 Basse i'. Gallegger, 7 Wis. 442. 6 Hough v. Doyle, 8 Blackf. 300 ; 3 Per Robertson, C. J., Caufman v. contra, Cecil v. Dynes, 2 Cart. 266. Sayre, 2 B. Mon. 204. See Walker v. Sellers, 11 Ind. 376. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 209 amount then due, and the property ordered to stand as security for the remainder.^ § 80. Suit to foreclose a mortgage, on wliicli only 835 were due. Held, though tlie Court has power in such case, under the statute, to order a sale for instalments not due; yet, as the statute was not imperative, and as notiiing appeared at that stage of the suit making such a course proper, the Court would not entertain the cause.^ § 81. Judgment was recovered upon a hond secured by mortgage, conditioned for the payment of money by instal- ments, and execution for the instalment then due was issued and returned unsatisfied, but was afterwards paid. Held, that before the mortgage could be foreclosed, either under the statute or by a bill in chancery, for non-payment of an instal- ment which subsequently became due, an execution for that instalment must issue, and be returned unsatisfied."^ § 82. Under the New York Revised Statutes, no decree for sale can be made, where only part of the debt has become due, until there has been a reference and report, as to the situation of the premises.^ § 83. There may be a foreclosure for non-payment of an in- stalment, although the mortgage be given expressly " to secure payment of the notes when they become due." ^ So where the mortgagee is an indorser on several notes, but has paid only one, he may still maintain a bill to foreclose.^ § 84. It is held in Maryland, that, where a debt secured by mortgage is payable by instalments, the mortgage becomes forfeited by non-payment of the first, and may be foreclosed immediately. If a bill is filed for that purpose, the debtor may prevent a foreclosure or sale by paying the instalment then due ; but, if he fails to do so, the mortgage may be en- tirely foreclosed, or so much of the property sold as will satisfy the sum due at that time ; and the decree will be allowed to stand as security for the other instalments ; as in case of a judgment at law for an annuity. But if the property cannot 1 Walker v. Ilallctt, 1 xWa. (N. S.) * Ontario, &c. y. Strong, 2 Paitre, 30L 380. 5 Hunt V. Harding, 11 Ind. 245. 2 Mitchell V. Tighe, Ilopk. 119. 6 Beckwith v. Windsor, &c., 14 Conn. 8 Grosvenor v. Day, 1 Clark, 109. 594. VOL. II. 14 210 THE LAW OF MORTGAGES. [CH. XXXII. Ije conveniently or safely sold in parcels, it must be disposed of entire, and the whole debt raised and paid, with a rebate of interest on the suras not due at the time of paying over the proceeds to the creditor. This is done from necessity, and as an unavoidable consequence of the peculiar nature of the case.^ § 85. It was early held in Massachusetts, that to an action upon a mortgage, securing a note payable by instalments, it is no defence, that all the instalments are not due. The Court said, there was nothing in the objection, and that it had been repeatedly overruled.^ So, in Indiana, judgment by default for the foreclosure for the whole debt of a mortgage given to secure two notes, both of which were due, although as to one this did not appear on the record, was held to be proper.^ § 86. A., being indebted to B., mortgaged to him certain premises ; and, subsequently becoming further indebted to him, made a second mortgage, including the lands mentioned, togetlier with four other pieces of land. On a bill for foreclo- sure brought by the mortgagee, it was held, that if A. should fail to pay both debts within a limited time, he should be foreclosed, and that the Court would not make a separate decree for each debt.4 § 87. Where a debt payable in instalments is secured by mortgage, which provides, that on failure to pay any one of them, the whole should be payable, deducting interest to the time when it would become payable, had there been no default ; held, a bill to foreclose would lie on a default in payment of any instalment, and that the above provision was not a penalty.^ (a) 1 Salmon v. Clagett, 3 Bland, 179, - Estabrook v. Moulton, 9 Mass. 180 ; 5 Gill & J. 314. Ace. Levert v. 258. Redwood, 9 Port. 79 ; Peyton v. Ayres, 3 Carter v. Simons, 12 Ind. 476. 2 Md. Ch. 64 ; Wylie v. M'Makin, 2 4 phelps v. Ellsworth, 3 Day, 397. Md. Ch. 413 ; Baker v. Lehman, 5 Andrews v. Jones, 3 Blackf. 440. Wright, 522. (a) Where, before filing his bill for amount, although, according to the foreclosure, the mortgagee notified the terms of the bond, one instalment was mortgagor that he should elect to con- not due when the bill was filed. Noonan sider the entire debt as due ; held, he v. Lee, 2 Black, 499. was entitled to a decree for the full CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 211 § 88. Where a mortgage is inadequate security, and tlio mortgagor is irresponsible, altliough the whole mortgage debt is not due, the Court will order a sale of the whole j)remises, or sufficient thereof to pay the whole debt and costs, unless the mortgagor will, before sale, pay the amount due, or give security that the residue of the debt shall be paid when it fulls due.^ § 89. Upon a l)ill to foreclose two mortgages, the first pay- able by instalments, and a part thereof due, but the jnnior mortgage wholly due and unpaid, the Court directed a sale of so much as would satisfy the whole of both mortgages, unless the defendant should, before the sale, pay the amount due, with costs.2 § 90. A judgment of foreclosure, on a mortgage covering several instalments, may include an instalment fallen due be- tween the time of the rule nisi, and the rule absolute.^ § 91. A bill to foreclose a mortgage payable by instalments alleged that 8100 was then due, which the answer denied. That surti was not due at the time of answering, but had become due at the time of the hearing. Held, the Court had jurisdiction.* § 92. Entry for non-payment of one instalment. Bill in equity to redeem, after all had become due. Held, the plain- tiff could not redeem without paying the wliole.^ § 93. If, in such case, the defendant refuse to receive instal- ments not due ; a special decree will be made, that the case stand open, and the mortgagee retain possession till the whole is due. Shaw, C. J., says : " The argument of the plaintiff seems to go upon the ground, that it was the intent of the statute to give a mortgage debtor the additional term of three years' credit beyond that stipulated by the parties, for all sums. But this is not so ; the provision of the statute was intended to avoid a forfeiture. The mortgagor is allowed to redeem and regain the title and possession of the estate, on paying all that is due, and performing the condition so far as he can. This requires, that he shall pay all that is due at the time of the decree. The argument goes on the assumption that after 1 Suffern v. Johnson, 1 Paige, 450. * Smalley v. Martin, 1 Clark, 293. 2 Hall V. Bamher, 10 Paige, 296. » Mann v. Ricliardson, 21 Pick. 356. ' Lawrence v. Jones, 20 Geo. 342. Ace. Adams v. Brown, 7 Cash. 223. 212 THE LAW OP MORTGAGES. [CH. XXXII. there is au entry for condition broken, there must be a new entry or a new notice, on the breacli of each subsequent con- dition. But we think it is not so. Until a breach of condi- tion, the rights of the parties are legal and not equitable. But after breach of condition it is otherwise." " The mortgagee's entry shall be referred to his right, and he shall be presumed to have entered as well for the purpose of foreclosing as for taking tlie rents and profits. Then he has no need of giving any notice of further breach of condition. By the breach of any condition, the estate is his, at law. The rights of the mortgagor are equitable only. Wlien he comes to ask equity, he must do equity by paying all that is due on the mortgage. The plaintiff is bound to pay all tliat is due at the time the account is taken. The prayer is, that an account may be taken of what is due ; and the plaintiff must, by his bill, de- clare his readiness to pay the amount which may be found to be due. It is analogous to an action on a penal bond. On a breach shown, the plaintiff recovers all that is due at* the time of the hearing in chancery, although part of it has fallen due since the action brought." § 9-4. Mortgage, to secure a debt payable by instalments. Upon failure to pay the first, the mortgagee brings a bill to foreclose, and, pending the bill, the last instalment became due. It was contended for the defendant, 1st, that the suit was prematurely brought ; 2d, that the decree should be- only for the amount due at the filing of the bill. The Court say : " Tiie suit, being a bill in equity, ought rather to be governed by the liberal principles which govern in covenant, assumpsit, and special agreements, than those technical and rigid rules which are applicable to the action of debt only. The suit was properly commenced, althougli but one of the instalments was due." In regard to the second point, tlie Court say : " The Chancellor having once jurisdiction of the cause, ought not to turn the parties round at the hearing, to begin de novo, but should go on and finish the controversy. The last instalment became due before the cause was heard ; so that the Chancel- lor might well, as he has done, embrace the whole case in tlie decree." ^ 1 Adams v. Essex, 1 Bibb, 149. Ace. Smalley v. Martin, 1 Clark, 293. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 213 § 95. The failure to pay tlic second instalment ordered l)y a decree of foreclosure, and falling due while a l)ill is pending to be relieved from the forfeiture for not paying the first, affords no ground of objection to a decree in favor of the orator in such bill.^ § 90. A decree authorized the trustee to sell enough of the mortgaged ])roperty to pay the amount then due ; but the exe- cution of this decree was prevented by injunction, and in the mean time other instalments of the mortgaged debt became due. The injunction being dissolved, the trustees sold enough to pay tlie amount due at the time of sale. Held, the decree stood for the entire debt ; that the Court, upon application, would have authorized the doing of what had been done, and would therefore give its subsequent assent.^ § 97. Where the bill avers that the three last of four notes secured by a mortgage are unpaid, it will be implied that the first has been paid. If the note is outstanding in the hands of an assignee, the answer must so allege.^ § 98. In Michigan, if a mortgage debt is payable by instal- ments, and the land sold on default in payment of one of them, for the amount of such instalments ; the premises are dis- charged of the others.^ It seems, the mortgagee might protect himself by selling the whole mortgage debt, or by an express reservation of a lien for the balance.^ § 99. Where a mortgage contains several conditions, and the mortgagee enters for breach of one only, the mortgagor may prevent a foreclosure by tendering performance of this alone, and upon a bill in equity may have judgment for possession, unless the mortgagee in his answer sets up his general right under the mortgage, or has declared that he holds for breach of another condition ; in which case, a special decree may relieve the mortgagor from the effects of the I)reach for which the entry was made, and leave the mortgagee in possession of his legal rights.^ If only interest is due- and entry made for its non-payment, and the mortgagor tenders the principal also, but the mortgagee refuses the money, expressing no willing- 1 Pierson v. Clayes, 15 Verm. 93. * Kimraell v. Willanl, 1 Dougl. 217. 2 Clark V. Abbott, 1 Md. Cli. 474. 5 ibid. 3 Levert v. Redwood, 9 Port. 79. ^ Saunders v. Frost, 5 Pick. 259. 214 THE LAW OF MORTGAGES. [CH. XXXII. iiess to receive even the interest ; the tender will be a valid one.^ In snch case, the mortgagor may legally demand a release of the mortgage, so far as it is a security for the in- terest.^ § 100. Where a mortgage is made for two debts, and the mort- gagee enters for non-payment of the only one due, and the mortgagor brings a bill to redeem ; and, upon maturity of the other, makes a new tender and files a supplemental bill ; such bill should allege the tender, but, no plea or answer being filed, may be amended without costs.^ § 101. The receipt of the second instalment due under a de- cree of foreclosure, when the first is overdue and unpaid, is a waiver of any forfeiture which has then accrued, but does not vacate the decree in relation to subsequent instalments.^ § 102. An interlocutory decree, in a suit to foreclose, directed the mortgagor to pay the sums due the complainants, not specifying them. Afterwards a decree was made, reciting that the mortgagor had failed to pay as ordered, and directing a sale of so much of the property as would pay to certain mort- gagees a certain sum, which did not appear from any part of the record to be the true sum. Held, both decrees were wholly erroneous ; that the former should have ascertained the amounts due each complainant, and stated them ; that all the joint mort- gagors should have been made parties ; that the decree for sale should have identified the property to be sold, and have pro- vided, in case of its insufficiency to pay all the mortgages, for a pro ratd distribution of the proceeds.^ . § 102 a. In April, 1845, a decree j^ro confesso was obtained by A. against B., in a suit for the foreclosure of a mortgage for 127,727.24. In September following, the mortgaged prem- ises being then advertised to be sold under the decree on the 6th of October, 1845, B. made a proposition for the payment of the mortgage debt, to which A. acceded. A. wrote to his solicitor, authorizing him, on certain conditions, to enter into a stipulation with B. on the terms proposed, one of which was that $1100 should be paid by B., and the arrangement com- pleted on or before the 1st of October. No part of the money 1 Saunders v. Frost, 5 Pick. 259. * Smalley v. Hickok, 12 Verm. 153. 2 Ibid. 3 Ibid. 5 Hopkins v. Ward, 12 B. Men. 185. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 215 was paid as proposed. On tlie r.th of January, 1846, B. paid to A.'s solicitor $1100. A.'s solicitor apprised him of wl)at had been done. - A. directed tliat $500 of the $1100 be applied to the payment of the interest up to the 1st January, 1846, on $20,000 ; and authorized his solicitor to enter into a stipu- lation on the payment of $19,500, with interest semi-annually, m certain specified instalments, to discharge the debt and re- lease the property mortgaged, the stipulation to contain a res- ervation of all rights under the mortgage and decree of sale, provided the stipulated payments of interest and on account of .principal are not regularly made. B. failed to make any of the subsequent payments. Held, that, under these circum- stances, the Court could not declare that the amount of the de- cree was reduced to $20,000.^ § 103. Mortgage to secure two notes. Upon maturity of the first, the mortgagee foreclosed and sold, and the proceeds were more than sufficient to pay the first note. Held, the sur- plus in the hands of tlie sheriff was discharged from the lien, and creditors recovering judgments prior to foreclosure upon the second note were entitled to receive it.^ § 104. Pending a suit to foreclose, for non-payment of the first instalment, the mortgagee assigned the second, and, by a separate instrument, agreed that no sale sliould take place under the decree before the second should become due, nor for a less sum than the amount of both instalments, and that the sale should be for the benefit of the assignee after satisfaction of the first payment due. Held, upon a purchase by the mort- gagee under the decree of foreclosure and sale, no trust in the land resulted to the assignee.^ § 105. Where mortgaged premises are sold, under a fore- closure, subject to the lien of a future instalment, the land becomes the primary fund for payment of the debt; and, if the premises are purchased by the mortgagee, the mortgage debt is extinguished.^ § 106. Upon a bill for foreclosure for non-payment of $42 interest, held, not sufficient to give the Court jurisdiction, under 1 Ryerson v. Boorman, 4 Halst. Cli. 3 Norton v. Stone, 8 Paige, 222* 66, 701. * Cox i;. Wheeler, 7 Paige, 248. 2 Hobby V. Pemberton, Dudley, 212. 216 THE LAW OF MORTGAGES. [CH. XXXII. the Revised Statutes of New York, that it appeared by the report of the Master that the premises could not be sold in parcels, and that the defendant was in possession, and insol- vent.^ § 107. In case of a mortgage payable by instalments, and a bill filed by the mortgagee upon default of payment of the first instalment, the Court will stay proceedings, on condition that the defendant consent to a decree of foreclosure, subject to the order of the Court, upon subsequent default, and pay the sum actually due.^ § 108. A. conveyed to B. and others, for $20,000, subject to the unexpired term of C, under a lease from A., taking back a mortgage for the purchase-money. It was agreed that A. should receive the rent so long as C. remained in possession, and pay B. and others the interest. The first instalment be- came due on the mortgage, and A. proceeded to foreclose, and the bill was taken as confessed as against the mortgagors. Held, the amount due from A., by virtue of the agreement to pay interest, should be deducted from the mortgage, and a reference was directed to a Master to ascertain the balance.^ § 109. Most of the preceding cases relate to instalments of the principal. Similar questions, as we have seen, arise from the non-payment of interest, (a) In Stanhope v. Manners,* in- 1 Douw V. Sheldon, 2 Paige, 323. 2 Lansing v. Capron, 1 John. Ch. 617. 3 Disbrow v. Jones, Harring. Ch. 102. 4 2 Eden, 197. (a) Where interest is due under a 189, of the (R. I.) Revised Statutes, mortgage, and is in arrear, an action for Carpenter v. Carpenter, 6 R. I. 542. foreclosure will lie, although no part of On a petition for foreclosure of a the principal is due. Smart v. McKay, power of sale mortgage, judgment was 16 Ind. 45. entered for the amount of interest un- In ejectment for lands mortgaged, paid, and for a foreclosure. It was it appearing by the plea, that the mort- not found that the whole debt was due gage was given to secure a note, the by reason of the failure to pay such principal of which was payable at the interest, and the decree contained this end of four years, but the interest an- provision : " And it is further decreed nually ; held, the condition was broken that this decree and judgment is no bar by non-payment of the annual interest to any further proceedings upon said for three years, although the principal note and mortgage, to recover the in- was not due ; and tliat conditional judg- terest that may accrue on the same or ment for possession must be entered up the principal, either in court or by for the plaintiff, in conformity to § 7, ch. advertisement and sale out of court, CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 217 terest was payable periodical!}', on cacli of several instalments of principal, and the mortgagee had, by an express stipulation in the mortgage, the election to call in his money on a default in the payment of any one instalment of interest. On a fail- ure by the mortgagor to pay the rest, the mortgagee having elected to call in the whole debt, the Court decided that he had a right so to do, and therefore to foreclose tlie equity of re- demption as to all the instalments and the whole estate. So, it is said, " the non-payment of interest, where it is expressly stipulated for, is no less a breach of condition here than in England ; or than the non-payment of an instalment of the principal. In a word, the interest is part of the substance of the mortgage debt. It belongs not to it by tacking ; it is not an incident of the debt, hwi jjro tanto it is the debt itself. The parties anticipated it at a fixed rate of increase, and it was just as sure to accrue as time was to last. A judgment at law for it must have tlio same effect as a judgment for any other part of the mortgage debt. On a judgment for an instalment of the principal, a virtual foreclosure of the mortgage is effected by a sheriff's sale ; the equity of redemption in the mortgagor is extinguished, and the legal estate still in him is transferred, and the lien of the mortgage is divested. It follows as a neces- sary conclusion, that the same consequences must attend a provided the same are not paid at of the duty of five per cent, which, by maturit}'." Held, the decree ihd not the Revenue Act of 1864 (§ 122), such adjudicate upon tJie effect of non-pay- companies "are authorized to deduct ment of tlie interest upon tlie right to • and withhold from all payments on claim the wliole sum to be due, nor to account of any interest or coupons due sell for non-payment of taxes, there and payable," but only the interest, less being no claim of that kind before tlie five per cent, retaining the tax for the court. Pope v. Durant, 26 Iowa, 233. government. Ilaiglit v. Kailroad, U. A provision in a mortgage given by S. Sup. Ct., Leg. IntcU., March 27, a railroad to secure its coupon bonds, 18G8. that the mortgage shall be void if the A decree of foreclosure and sale, mortgagor well and truly pays, &c., the when only interest is due, may order debt and interest, " witliout any deduc- payment of the debt out of the pro- tion, defalcation, or abatement to be cceds, but not that, if the proceeds are made of an3' thing for or in respect of insufficient to pay the whole debt, the any taxes, charges, or assessments what- plaintiff shall recover and have execu- soever"' — does not oblige the company tion for the balance. Taggart v. San to pay the interest on its bonds clear Antonio, &c., Co., 18 Cal. 4G0. 218 THE LAW OF MORTGAGES. [CH. XXXII. sheriff's sale of the mortgaged premises made upon a judg- ment obtained for the interest." ^ § 109 a. A bill prayed for foreclosure and sale, and payment of the amount due for principal and interest, and for general relief. The interest only was due. Held, that a decree there- for was proper, and consistent with tlie prayer ; and that the defendant could not object that the decree was not for the whole amount, to be enforced in part, and thereafter on default for the balance.^ § 110. Bill in equity to redeem. The entry to foreclose was made before the principal debt had become due, for non-pay- ment of interest. The bill was filed, but no decree pronounced, before the principal was due. Held, in order to redeem, the mortgagor must pay the whole principal and interest.^ § 111. Upon a principle analogous to that referred to in equity proceedings for foreclosure, the conditional judgment Tipon a mortgage shall include the whole amount due at the time it is rendered ; not merely what was due at the commence- ment of suit.* (a) § 112. Where a mortgage is made to secure the performance of various acts from time to time, other than the payment of money, in a real action for foreclosure,' the Court, in order to accomplish the purposes of the mortgage, may enter any decree from time to time, toties quoties, which may be made in a suit in equity, and issue any process to carry such decree into effect.^ So, where a mortgage was made to secure several notes, payable in successive years, and, upon non-payment of one, a suit was brought and judgment recovered for the amount of the note, and possession taken ; held, the mortgagor could not redeem, without tendering the amount due on the other 1 Per Woodward, President, Bank 37 ; 7 Cush. 220. See Mass. Rev. V. Chester, 1 Jones, 290. See Carpen- Stats, cli. 107, §§ 14-23. ter w. Carpenter, 6 R. I. 542. * Stewart ij. Clark, 11 Met. 384; 2 Ames V. Ames, 5 Wis. 100, 169. Northy v. Northy, 45 N. H. 141. See ' Adams v. Brown, S. J. C. Mass., Knapp v. Burnham, 11 Paige, 330. March, 1851, Law Rep., May, 1851, p. 5 Stewart v. Clark, 11 Met. 384. (a) An instalment of a mortgage hefore the hearing, is properly in- debt, not due when the suit in fore- eluded in the judgment. Manning v. closure is brought, but falling due McClurg, 14 Wis. 350. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 219 notes within the year from the time of their maturity. Tlie Court say : "■ The mortgagee holds fur the breach of all con- ditions which occur during the time of his possession, unless there is sometliing to rebut or control such a result." ^ (a) § 113. A decree for sale cannot be made, on a Ijill to have the mortgage recorded, although it pray for general rclief.- § 114. In case of a mortgage to secure performance of work, a decree of foreclosure for a balance found due from the con- tractor is erroneous.^ § 115. A decree in a bill to foreclose, directing a sale, must find the exact amount due, and not leave it to be calculated by the ministerial ofificer.* If the amount is uncertain, it should be referred to an auditor, before any decree for sale.*^ And a decree for sale before the report conies in and is confirmed, is erroneous.*^ (6) § IIG. On a bill to redeem, it is erroneous to decree the property to be given up, before the sum due is paid or ten- dered." § 117. Where two lots arc included in a mortgage, and only 1 Doming v. Comings, 11 N. II. 474. 5 Wylie v. McMakin, 2 MJ. Ch. 2 Chalmers v. Chambers, 6 liar. & 413. J. 29. ^ Graham v. King, 15 Ahi. 563 ; 3 Petne v. Wright, 6 S. & M. 647. Gardiner v. Garniss, Ilopk. 306. * Wernwag v. Brown, 3 Bhickf. 457. "^ Heed v. Lansdale, Hardin, 6. (a) Where a mortgage is made to secure several notes, a bill for fore- closure may be filed on the non-pay- ment of the first, and the others may be included in the decree, if they fall duo before the final decree is rendered. Magruder v. Eggleston, 41 Miss. 284. Suit was brought to foreclose a mortgage securing two notes, upon maturity of the first ; and a decree was made in the usual form, witli a clause for a judgment for any deficiency ultimately found to be unsatisfied by the proceeds of the property. The proceeds did not pay the first note. Helil, this decree constituted no bar to an action on the second note; tliat it did not empower the mortgagee to come into court after the sale, and enter up a personal judgment on the notes ; and that the second note was not merged in the decree, and no judgment was given upon it. Bliss v. Weil, 14 Wis. 35. See Statute of 1849, § 78, ch. 84. (b) In Michigan, a reference to a court commission to compute the amount due, is for the convenience of the judge, and he may dispense with it. Ireland v. Woolnuiii, 15 Mich. 253. In Mississippi, a final decree cannot be passed without reference to the clerk or master to compute and report tlie amount due. Beville v. Mcintosh, 41 Miss. 516. 220 THE LAW OP MORTGAGES. [CH. XXXII. cue was meant to be mortgaged, there may be a foreclosure of that lot.^ § 118. If it appears, upon a bill of foreclosure, that the plaintiff acquired any estate, whicli is still subsisting, by vir- tue of his mortgage deed, he is entitled to a foreclosure of that estate.^ § 119. In such case, the Court will not ordinarily go into an inquiry as to the quantity of estate mortgaged.^ § 120. "Where the defendant, in his answer to a bill of fore- closure, admitted that the plaintiff acquired a valid title to all the mortgaged premises, except twenty acres thereof, and al- leged that the mortgagor had not, at the time of executing the mortgage deed, any interest in said twenty acres, and that the whole title to the same had become vested in the defendant ; it was held that, in default of payment of the mortgage debt, the plaintiff was entitled to a decree foreclosing the defendant of the right to redeem the property conveyed by the mortgage, leaving the parties at liberty to contest the title to the twenty acres, in an action at law, which was the legitimate mode of determining its validity.* § 121. Nice questions as to the form of judgment often grow out of the joint interest of different parties in the debt secured or the estate mortgaged, or the union of separate estates in one mortgage, (a) 1 Conklin v. Bowman, 11 Ind. 254 ; Walker v. Sellers, ib. 376. 2 Hill V. Meeker, 23 Conn. 592. 3 Ibid. * Ibid. (a) Where a mortgagee, holding other property, the two parcels of land two mortgages, forecloses one for the included in the other two, brought a full amount, without giving any credits bill to foreclose against the mortgagor for rents collected from leases assigned and a subsequent mortgagee of the to him ; prima, facie he elects to apply whole. The decree was for foreclosure rents upon the mortgage unforeclosed. on default of payment of the amount Huston V. Stringham, 21 Iowa, 36. due on the three mortgages. Held, not The practice in suits for foreclosure erroneous, although the effect of the is, to direct each mortgagee to be paid foreclosure of the first two mortgages his principal, interest, and costs, accord- would be limited to the land included ing to priorit}', whether the bill is filed in them. Enriglit v. Hubbard, 34 Conn, by the first, last, or any other incum- 197. brancer. Lithaner v. Royle, 2 Green The decree directed, that, unless (N. J.), 40. the mortgagor should pay the sum due A mortgagee, who held three mort- by a certain time, he should be fore- gages, the last including, with some closed ; and that, unless the subsequent CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 221 § 122. Upon a hill brought by two persons to foreclose a mortgage for their joint debt, a decree cannot be made for the separate debt of one of them, which is not set forth in the bill, though it appears from the subsequent proceedings.^ § 123. Claim filed for foreclosure. It appeared that there were two separate mortgages, affecting separate estates, both effected by the same mortgagor to the same mortgagee. The mortgagee had the legal title to both estates ; and claimed to treat the mortgages as one security, and to foreclose both es- tates on iton-paymcnt of the aggregate amount of the mortgage debts. The mortgagor objected to this amalgamation of secu- rities, and claimed that the mortgagee could only foreclose each estate separately, on non-payment of what was secured upon it. This view was sustained by the Court, and a decree passed for foreclosure of each mortgage separately .^ § 124. Hunting made a mortgage to Peck, which Peck as- signed to Hapgood. Peck also mortgaged another tract for security of another debt to Hapgood, whose executors bring an action to recover both the tracts against Peck. Judgment was rendered, that tlie plaintiffs recover possession of both tracts, unless within two months the defendant should pay the amount of both the mortgage debts and costs. Held, upon writ of error, that such judgment was erroneous for the whole.^ Shaw, C. J., remarks : ^ " "We think there can be no reasonable doubt, that even in a case where the same person is the mortgagee in two distinct mortgages, to secure several debts, and the same person is mortgagor, the two could not be united in one suit, so as to have one consolidated conditional judgment ; though we have not been referred to any decided case to that effect. It seems contrary to principles, and to a just construction of the statute. It would be to hypothecate each parcel of the mort- gaged premises for the debt secured by the other, which the 1 Barraque v. IMamicl, 2 Eng. 516. ' Peck v. Hapgood, 10 Met. 172. ■^ Smeatliman v. Bray, 8 Eng. Law * Ibid. 172. & Eq. 40. mortgagee should pay the same by a depend on the former's non payment, certain subsequent time, lie also should as it was clearly implied tiiat tlie be foreclosed. Held, the decree was latter's foreclosure was only to take not erroneous, for not in terms making effect on non-payment by both himself the payment of the debt by the latter and the mortgagor. Ibid. 222 THE LAW OF MORTGAGES. [CH. XXXII. parties themselves have not done. Then, there are so many dependent and derivative rights to each, which may be held by different persons, as assignees or attaching creditors of each equity of redemption, that such consolidated judgment would tend to produce a confusion of rights and consequent in- justice." § 125, But an assignee of two mortgages of the same land, made by the same person, though at different times, and to dif- ferent mortgagees, may join them in one action for foreclosure, and recover a conditional judgment, specifying the amount due on each, and ordering a writ of possession, unless both sums shall be paid in two months. The Court make a distinc- tion between the case of Peck v. Hapgood,^ where the two mortgages embraced distinct parcels of land, and the debts were due from different persons, and the present case, where the land and the debtor wore the same. " The object of the suit is, to have payment of the debt for which the land is hypothecated, or possession of the land itself. As between these parties, the debtor can neither redeem nor stay the writ of habere facias, without paying both sums. Payment of either one would not clear him, any more than payment in part of a single debt, (a) But, as it is possible that the rights of some other party may intervene, it is proper for the judgment to specify the amount due on each note, and tlien add, that unless both said sums, amounting in all to, &c.,be paid within two months, then a writ of seisin to issue. The power is given to the Court, under the Rev. Stats, ch. 107, § 29, to enter such special judgment as justice and equity in each case may re- quire. And it is obviously the policy of the law, and beneficial to all parties, in saving expense, to avoid two suits between the same parties, when one will afford a complete remedy." ^ § 126. In a suit against a surviving mortgagor and the per- sonal representative of a co-mortgagor, to foreclose, no per- sonal decree can be made against such representative, even so far as to settle the amount due from the estate.^ 1 10 Met. 173. 2 Pierce v. Balkam, 2 Cush. 374. 8 Rhodes v. Evans, 1 Clark, 168. (ft) This proposition would seem to be founded upon the English doctrine of tacking. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 223 § 127. One may liold two mortgages on dinbrcnt estates, to secure one debt, and foreclose one only. Whether this will bar a foreclosure of the other, dej)cnds on the value of the prop- erty foreclosed. If equal in value to the debt, this will be the effect. 1 § 128. Joint bond from A. and B., secured by mortgage of A. Afterwards A. gave a bond to B., assuming the former, and indemnifying B. against it. The parties having paid each half of the first bond, B. procured an assignment of it to a third person, for the purpose of obtaining a foreclosure. Held, a bill to foreclose by the assignee could not be maintained.^ § 129. Where a mortgage is made by two tenants in com- mon, the mortgagee has a right to foreclose the whole estate ; and cannot be compelled in equity to receive from one his share of the debt, and proceed against the other for the balance, though a bond of indemnity be tendered him.^ § 130. Where the rights and interests of some of the defend- ants in a bill of foreclosure were distinct from each other, because they had subsequent mortgages upon distinct parcels of the land mortgaged to the plaintiffs ; yet, as the defendants were all interested in the plaintiffs' prior right, and neither could redeem his own till that right was satisfied ; held, a decree, that each should pay the plaintiffs' debt, with interest and costs, by a certain time after that limited for the mortgagors, was correct.^ § 131. The following decisions illustrate the principle, that the judgment in a suit upon a mortgage, even at law, will be so moulded as to meet the substantial justice of the case, with- out regard to nice and technical rules. § 132. In a bill for redemption of a mortgage, the Court may incidentally relieve a party from forfeiture of the estate for breach of condition in his deed.^ § 133. In tlie case of Sargent v. McFarland,*^ Ira and James McFarland, two tenants in common, made a mortgage to secure a joint and several bond, which was assigned to the plaintiff; and afterwards one of them mortgaged an undivided half of the 1 Burpee v. Parker, 24 Verm. 5G7. « Mix v. Hotclikiss, 14 Conn. 32. ■■i Sturges V. Alyea, 2 Halst. Cli. 186. » Hancock v. Carlton, G Gray, 39. 8 Frost V. Frost, 3 Sandf. Ch. 188. <* 8 Tick. 500. 224 THE LAW OF MORTGAGES. [CH. XXXII. same laud to Daniel McFarland. The second mortgagee assigned his mortgage to the fii'st. who took possession thereupon for breach of condition, and then brings this action against Ira for an undivided half of the land, upon the first mortgage. It was held, that, if the suit had been brought against both mortgagors for the whole land, the defendant might have redeemed by pay- ing the whole debt, and would thus have become an equitable as- signee of the mortgage, both as against James, for the purpose of contribution, and against any subsequent mortgagee ; other- wise, by a second mortgage from James, the defendant might be deprived of all security ; that the Court would not compel the defendant to adopt this course, and then bring an action or bill against the plaintiff, claiming under the second mortgage, to en- force his rights under the first, more especially as the plaintiff had entered to foreclose for a debt voluntarily created after the first mortgage ; but would exercise its equity jurisdiction, under the statute providing that judgment be rendered in such case for so much as is due, according to equity and good conscience, and render judgment only for the amount equitably due in relation to the land, which was one moiety of the debt, a moiety of the land having been taken by the plaintiff to secure another debt from James alone. Judgment was accordingly rendered, that the plaintiff have possession, unless the defendant, within two months, pay half the money due on the bond. The objection, that such judgment would bar a suit against the defendant upon the bond for the balance due, was answered by the fact, that the facts on which the judgment was founded were spe- cially set forth. If James had been a mere surety for the de- fendant, the whole amount being equitably due from the latter, a different rule would be adopted. § 134. A mortgagee, whose mental faculties were impaired, burned the mortgage and the title documents, some of which were originals, others attested copies. At his request, the mortgagor executed a deed, reciting the mortgage from a draft of it, and the loss or destruction of the original, and acknowl- edging the recital to correspond with the original. The execu- tors of the mortgagee file a bill for foreclosure, stating these facts, which were found by the Master to be true. Held, the plaintiffs should procure fresh attested and office copies, and CH. XXXri.] FORECLOSURE, ETC. — PLEADING, ETC. 225 also make compensation for llic damage done to the estate, the amount to be settled by the Master, and deducted from the dcbt.i § 135. Mortgage, with a delivery of the title-deeds, some of which the mortgagee lost. The mortgagor gave notice of his intention to pay the mortgage at the end of six months, but did not pay it till after that time, in consequence of the mortgagee's failing to indemnify him for the loss of the deeds. The mortgagee brings ejectment, and the mortgagor a bill to redeem. Held, a redemption should be allowed, and a certain sum, paid by the mortgagor for interest after the six montiis, repaid to him ; that the mortgagee should furnisii a satisfactory indemnity, and pay the costs of both suits.^ § 136. With regard to the sum for which a judgment or decree shall be rendered, it is said, whether the bill be filed by the mortgagor for redemption, or the mortgagee for fore- closure, the order of the Court is, that it be referred to the Master, to take an account of principal, interest, and costs due the mortgagee, (a) The usual decree is, that the Master take an account of what the mortgagee has received, or might have received but for his own default ; but any sums received subsequent to the decree must be brought into the account, though the decree docs not, in terms, extend to future rents.^(6) There must be a special order for an allowance for improvements.* 1 Hornby r. Matcham, IG Sim. 325. ^ Coote, 604. See Rowan y. Sliarp's, 2 Lord MidtUeton v. Eliot, 15 Sim. 31 Conn. 1. 631 * Coote, 607. (rt) Where the mortgage and cer- the alteration of an enrolled decree of tified copies of the notes were without foreclosure, averred that it had been objection referred to a special Master, designedly given for a larger amount to state an account, the Court refused than was due, but was unsustained by to set aside a decree based upon his aflidavits or other evidence of merits, report. Pogue v. Clark, 25 III. 351. and only alleged as siurprise, that he • (ft) In a bill to foreclose, the com- "is unacquainted with proceedings in plainant recovered sixty dollars more this court, but in some way got the than he claimed. Held, the decree impression that he would have until was erroneous. Fergus v. Tinkham, the first day of the pri'sent term to file 38 111. 407. his answer ; " held, insufficient ground Wiiere a defendant's petition, for -tor opening and correcting the decree. VOL. n. 15 226 THE LAW OF MORTGAGES. [CH. XXXII. § 137. Where the decree directed an account of what was due the defendant (the devisee of the mortgagee), and of the rents and profits received by him ; it was held, that the Master ought to calculate the amount due to the defendant, without deducting the rents received by the testator.^ § 138. The amount, for which a conditional judgment shall be rendered, may be determined by the terms of a separate acknowledgment from the mortgagee to the mortgagor. § 139. A note and mortgage were given by the tenant to the demandant, as security for the price of such goods as the former might afterwards buy of the latter. Divers lots of goods were subsequently sold, after which the tenant gave the demandant a deed of a portion of the land, with the usual covenants, add- ing, after the covenant against incumbrances, the words, " ex- cept a mortgage " to the demandant. The same day the demandant gave the defendant a writing, agreeing to give up a mortgage " now held by me for 81000, without interest from date, as soon as payment is made of two notes for $108, with interest." The demandant at the time held such notes bearing interest, the amount of which was due for goods previously sold, not reckoning interest upon the items of the account. Held, 'the demandant should have conditional judgment only for the amount of the notes with interest, the above agreement being 1 Trulock V. Robey, 15 Sim. 265. Carpenter v. Muchraore, 2 McCart. mortgage security. The answer did 128. not deny their execution, and tlie facts Where a decree of foreclosure was set out were not proved. Held, a de- rendered for 6244:1, and was too large cree, finding the sum due, though not by $9.70; held, the maxim de minimis formal, was substantially sufficient. applied. McNutt v. Dickson, 42 111. Holmes v. West, 17 Cal. 623. 499. In a suit to foreclose, only a portion In taking an account, under a decree of the debt being due, the judgment, that mortgaged property in possession besides finding the amount due at the of the mortgagee should be retained date of the report, must also find the by him in satisfaction of the mortgage amount secured, and unpaid, with in- debt, at a valuation to be fixed by the terest, to the date of such report ; and clerk, the valuation must be made should provide for a stay of procee(J- according to what the property would ings, if, before the day of sale, the bring in gold, and not in Confederate mortgagor pay this sum, with interest notes. Bowers v. Strudwick, 1 Wins, and costs, to the plaintiff, his attorney, (N. C.) No. 2 (Eq.), 64. or the sheriff. Rice v. Cribb, 12 Wis. Suit on a note and to enforce a* 179. C«. XXXir.] FORECLOSURE, ETC. — PLEADING, ETC. 227 an account stated of the sum due on the mortgage, and a waiver of any claim for interest on the account for goods sold.i § 140. The usual and best method of proceeding, in cases of foreclosure, is said to be, to appoint a Master to find and report the amount due, and then exceptions may be filed to the report, upon which tlie judgment of the Chancellor is given ; 4ind this may afterwards be assigned as error. It is no error, however, for the Chancellor to make the calculations himself; but when he has done so, a mistake in calculation must be brought to his notice in some form analogous to that of an exception to a blas- ter's report.^ §141. "With regard to the delay or indulgence granted to a mortgagor before final judgment against him, it is held that the extension of the time of payment in a suit for foreclosure, termed in equity an exception^ is a practice not applicable to postpone- ments, after a decree upon a bill for redemption? (^a) (See chap. 2G, § 14.) § 142. The course in equity is stated to be as follows : In a suit for foreclosure, praying an account and payment by a certain day, the defendant answers, the case is referred to a Master, and a decree is rendered to pay the debt and costs in six months from the report. The Master makes a report, fixing the day of payment, and his report is confirmed. If the defendant makes default, the mortgagee may have an absolute foreclosure.* § 143. Where a decree allowed the mortgagor to redeem, on payment of the sum to be reported as due to the mortgagee, within a certain time after confirmation of the Master's report, but did not declare what should be the effect of a failure to re- deem, and the amount was not thus paid ; held, tlie construc- tion of the decree was, that the right of redemption should be 1 Rice V. Clark, 10 Met. 500. » Jenkins v. Eldredgc, 1 W. & M. 61. 2 Guy V. Franklin, 5 Cal. 416. * Coote, 566, 567. {a) A judgment for tlie whole be stayed, if tlie defendant, before it amount secured by a mortgage, with takes place, pays the instalments due, an order of sale, will be reversed, un- with interest and costs. Sauer v. less it also provides that the sale shall Steinbauer, 10 Wis. 370. 228 THE LAW OF MORTGAGES. [CH. XXXIT. barred by a failure to pay at the time ; but the Court extended the time for thirty days.^ (a) § 144. As has been already stated, the decree in a suit upon mortgage, in many of the States, is for a sale of the prop- erty, {b} Upon this subject it has been held, that although a mortgagee is not only a trustee but a surety for the debt, ai\d the mortgaged premises are in a state of ruin and decay, in consequence of storms, and the security thereby impaired and rendered precarious ; he cannot, for this reason, have the prop- erty sold before the debt is due, or the debtor in default.^ § 145. A decree, ordering a commissioner to sell, make the deed, and pay over to the plaintiff what may be due him, is informal.'^ § 146. A decree of foreclosure should fix a reasonable time for payment, in default of which the property is to be sold. The period of one day has been held unreasonable, and the proceedings erroneous.* § 147. Where the mortgagee has taken possession of part of the property, under a power authorizing him to take possession upon failure of payment and retain it till payment, and has filed a bill to foreclose the right of redemption in this portion, and for a sale of the rest ; a decree will be erroneous unless it give time to the mortgagor to redeem.^ § 148. A decree of foreclosure and sale, upon a mere sug- gestion that separate portions of the premises are held or 1 Sherwood v. Hooker, 1 Barb. Ch. 3 Tooley v. Gridley, 3 Sm. & M. 493. 650. * Richardson v. Parrott, 7 B. Mon. 2 Campbell v. Macomb, 4 John. Ch. 379. 534. 5 Mclntyre v. Whitfield, 13 Sm. & M. 88. (a) Whether a decree of foreclosure In Wisconsin, an order that the is erroneous, because the defendant has premises be sold in one lot cannot be not examined, or had notice to examine, disregarded by the sheriff, tliough the the report of the amount due by the complainant and principal defendant clerk, is doubted. McGowan v. James, agree otherwise. Babcock v. Perry, 8 12 S. & M. 445. Wis. 277. (&) The Indiana statute, requiring In California, the omission in a judg- the Court to ascertain whether mort- ment for foreclosure of the words " be gaged premises can be sold in parcels, sold," after the description of the prem- applies only where there are instalments ises, is a mere clerical error not affect- . yet to become due. Harris v. Make- ing tlie decree. Moore v. Sample, 11 peace, 13 Ind. 560. Cal. 360. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 229 claimed by different persons, under subsequent conveyances or mortgages, will, as a matter of course, contain provisions, authorizing the Master to sell in such manner as to protect the equitable rights of the respective defendants. The proper form is, that, if the facts above mentioned appear to the Mas- ter, he shall sell the premises in j)arcels, in the inverse order of their alienation, and according to the cquital)le rights of the parties. And if one of tiie grantees is entitled to a way or other easement in the residue of the premises, such residue shall be sold, subject thereto. But the decree should not pre- judge or define the existence or extent of such way, without anything to show the grounds of it ; and the decree should direct the Master, in his notice of sale, to specify the time and place wlicn and where the several parties interested should attend before him, and be heard as to the order in which the several parcels shall be sold.^ (a) § 149. Upon ordering a sale, it is not error that the Master is not required to bring the money into Court.^ § 150. Where one purchases the land from a mortgagor after a bill of foreclosure taken as confessed against him, the title of such purchaser is subject to the claims of the complain- ant and to the admissions of the mortgagor, involved in sutTer- ing the bill to be taken as confessed ; and such purchaser cannot set up any other defence than the mortgagor might have made, had no sale taken place.'"^ 1 New York, &c. v. Milnor, 1 Barb. Ch. 353. ^ Wiilkerr. Ilallett, 1 Ala. (N. S.)379. 3 Watt V. Watt, 2 Barb. Cii. 371. («) The rule, that a judgment in fore- closure should provide, that if, previous to the sale, the defendants or either of them shall bring into court the princi- pal and interest due, with costs, the proceedings shall be stayed, is confined to cases where only a part of the mort- gaged debt is due, and the premises cannot be sold in parcels. Manning v. M'Clurg, 14 Wis V,')0. A judgment, that so much of the mortgaged lands as is necessary to be sold as lands are sold on execution, is proper. Little v. Vance, 14 Ind. 19. In California, the mortgagee can take a decree, fi.xing the amount due, and directing a sale, and can then apply for a further decree, fixing the defi- ciency, if any, from tiie sale, and grant- ing execution therefor; or he can take a judgment at once for the whole amoimt due. In the latter case, the officer will apply the j)rocceds to sat- isfy the judgment, and in that way ascertain the deficiency. Rowland v. Leiby, 14 Cal. 15G. 280 THE LAW OF MORTGAGES. [CH. XXXII. § 151. Where lands conveyed to a trustee for the benefit of one person, and other lands conveyed to the same trustee for tlie benefit of another person, were mortgaged back in one deed for the unpaid portion of the price of both, and the as- signee of the mortgagee afterwards released a part of the former lands, and this part was conveyed in fee by the trustee ; upon a bill brought by the assignee to foreclose the mortgage, held, so much of the lands conveyed in trust for one cestui, as had not been released, were bound for that part of the price which remained unpaid, for the lands conveyed in trust for him ; and the lands conveyed in trust for the other cestui were bound for the unpaid price of those lands ; and a decree of sale was made accordingly. ^ § 152. If premises mortgaged cannot be sold in parcels or divided without injury, the whole may be sold, though the whole debt is not due, and the proceeds applied to pay the interest and costs, and the surplus to the principal. Where a decree is passed for a sale of the whole premises for non-pay- ment of interest, and the mortgagor or purchaser of the equity of redemption, before the day of sale, pays the interest and costs, the sale will be stayed ; but the decree of foreclosure will remain as security for payment of future interest, and of the principal, when due.^ (a) § 153. Where mortgaged property had been sold under a senior execution, held, the purchaser took the estate unincum- bered by the mortgage, but tlie mortgagees might come into court before the sale, and pray tliat the mortgagor's personal property, described in the bill, should be first applied to the executions ; or, after the sale, obtain a distribution of the debtor's estate, so that the mortgaged premises should be ex- onerated from the execution debt, until the other property should be distributed. If the mortgagee does neither of these things within four years his rights are barred.^ 1 Coutant V. Servoss, 3 Barb. 128. 3 Gadberry v. McClure, 4 Strobh. 2 Campbell v. Macomb, 4 John. Ch. Eq. 175. 634. (a) In Iowa, in a decree of fore- mortgage. Wilkerson v. Daniels, 1 closure, the District Court can order a Greene, 179. sale only of the land included in the CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 231 § 154. Where land mortgaged was conveyed by the mortga- gor to trustees, for benefit of creditors, wlio sold a part of it, free from incumbrance, to one person, and the rest, subject to payment of the mortgage, to another, who afterwards conveyed a part of his purchase to a third ; upon a bill to foreclose against the mortgagor and purchasers, held, the second was not chargeable personally with the costs of the first, on the ground that he was bound in equity to indemnify him against all expenses in defending the suit ; but that the first {)urchascr was entitled to a decree for sale, first of tluit part of the prem- ises still owned by the second, and, after paying the expenses of sale, the proceeds to be applied to the plaintiff's debts and costs, then the costs of the first purchaser, and lastly the costs of the third purchaser ; and if sufficient for that purpose, the part sold to the third purchaser to be sold, and, if there was still a deficiency, the part purchased by the first purchaser to be sold for that purpose.^ § 155. If after a decree for foreclosure the mortgagor begin to commit waste, he will be restrained by injunction, though no injunction is prayed by the bill.^ § 15G. In an action for foreclosure, after default, the condi- tional judgment may be entered, by filing an attested copy of the mortgage.^ § 157. A judgment, in an action on a mortgage, that the plaintiff recover his debt, interest, and costs, that the mortgage be foreclosed, and the premises be sold by execution, is final ; and further proceedings are regarded but as modes of execut- ing the decree.* § 158. Ah immaterial variance, in the description, between the judgment and execution, does not affect the foreclosure by entry.'' § 159. Where a decree for foreclosure has been made under a mortgage, which decree is afterwards assigned, and before execution a hostile fraudulent title springs up, and stands in 1 Warren v. Boynton, 2 Barb. 13. 2 Goodman v. Kinc, 8 Bcav. 379. 3 Union, &c. v. Thayor, 14 Mass. 3G2. * Hipp V. Iluchett, 4 Tex. 20. 6 Couch i;. Stevens, 37 N. H. 1G9. 232 THE LAW OP MORTGAGES. [CH. XXXII. tlie way of execution ; a demurrer to a bill filed by the as- signee, setting forth the facts proving fraud, and praying that the decree may be revived, will not be sustained.^ § IGO. With regard to costs in mortgage suits, (a) the gen- eral rule is, that on redemption the mortgagee is entitled to full costs, unless deprived of them by his own misconduct or mismanagement, in which case he sometimes is required to pay costs.2 Ordinarily, upon a bill to redeem, the complainant does not recover, and most frequently has to pay costs ; but where other relief is sought, such as to establish his right to rents and profits, and to have them set off against the amount due on the mortgage, he will be treated with more leniency.^ Costs on a bill to redeem are to be awarded against the com- plainant when the question is as to the amount due.^ The mortgagee pays costs where he brings ejectment against the mortgagor, and a redemption is only impeded by the loss of the title-deeds by the mortgagee. So where a suit to redeem is occasioned by such loss. So where a sale by him under a power is set aside as oppressive. So in case of a tender and refusal,^ after six months' notice, in England.^ So where the mortgagee sets up an absolute title, or an unconscientious de- fence, the mortgagors may recover costs.'^ § 161. Where, in a bill for foreclosure, only the sura of 15.57 1 Cunningham v. Doran, 18 111. 385. 5 Coote, 455, 456. See Vanderkerap 2 Coote, 408, 455, 456. See Piatt v. v. Shelton, 11 Paige, 28 ; Hodges v. Squire, 5 Cush. 551; Alexandrie v. Sa- Croydon, &c., 3 Beav. 86; Bourne v. loy, 14 La. An. 327 ; Langton v. Lang- Littlefield, 29 Maine, 306. ton, 31 Eng. Law & Eq. 402. 6 Coote, 603. 3 McConnel i;. Holobush, 11 111. 61. 7 May v. Eastin, 2 Port. 414; Slee * Sessions v. Richmond, 1 R. I. 298. v. Manhattan, &c., 1 Paige, 49. (a) In the United States, the subject closure against a subsequent mortgagee, is often regulated by statute. Supra, and other parties in possession, who ch. 27. See Steele, 7 Eng. Law & Eq. were not joined in the former suit. 59; Peers v. Ceeley, 19 Eng. Law & Held, in the computation of the first Eq. 269 ; Pryce v. Bury, 23 lb. 75 ; mortgage debt the costs of the former Harnor v. Priestley, 21 ib. 496. decree should be included, but not the A person who purchased a mort- costs in the suit at law, and interest gage, pending a suit by the mortgagee should not be reckoned on the debt on tlie mortgage debt, discontinued the found due on the former decree, but on suit, and obtained a decree of fore- the original mortgage debt. Woodstock closure.- After the equity of redemp- Bank v. Lamson, 36 Verm. 118. tion expired, he brought a suit of fore- CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 233 was shown to be due ; hold, the i)laiiitilT sliould cither recover no costs, or costs not exceeding that sinn.^ § 1G2. The ])laintifTs in a bill to redeem having before com- mencement of suit tendered the debt and costs ; held, no costs should be allowed to either party .^ § 163. The lien of a mortgagee attaches equally for the debt and for the costs necessarily incurred in the enforcement of his rights.''^ § 164. Where a mortgage contained a stipulation for all costs of foreclosure, " including counsel fees not exceeding five per cent of the amount due ;" it was held, that the limitation of five per cent was intended to apply to counsel fees alone, and the complainant would have the right to recover the whole of his costs by operation of the statute, independent of any stipu- lation.* § 165. Where the bill to redeem was brought against the representatives of the deceased mortgagee, it was held, that the plaintiff should not be required to pay costs, he having offered before commencement of suit to pay all that was equi- tably due, and the Court being of opinion that the litigation was wholly caused by the irregular conduct of the deceased in tak- ing an absolute, instead of a conditional deed.^ § 166. In Archdeacon v. Bowes,^ Alexander, Lord Chief Baron, says : " It is contended, that it is a universal rule, that wherever a mortgagee is a party to a suit, he must have his costs, inasmuch as the object of his security is to give him his principal and interest, and all costs incurred in getting back his money. Now I do not think that that is a universal rule. Lord Eldon, in Detillin v. Gale," states it only as a general rule. Lord Eldon there says, ' It is said, because he is a mort- gagee, he is to have his costs. That is not of necessity. Primd facie he is to have them certainly. The owner coming to deliver the estate from that incumbrance he himself })ut upon it, the person having that pledge, is not to be put to expense with regard to that ; and so long as he acts reasonably as raort- 1 Killan v. Jenkins, 25 Verm. G43. * Van Burcn v. Oloistead, 5 Paige, 9. 2 Kinnr ,,.. Diintz, 11 Barb. 191. 6 McClel. 1G7. 3 Kurd V. Coleman, 42 Maine, 182. ^ 7 Ves. 583. * Gronfier v. Minturn, 5 Cal. 492. 234 THE LAW OF MORTGAGES. [CH. XXXII. gagec, to that extent he ouglit to be indemnified.' I read this only for the purpose of showing that there is nothing in the case to prevent the Court looking at the question of costs, as between mortgagor and mortgagee." § 167. The costs of a prior suit upon the note may be in- cluded as part of the mortgage debt, in a subsequent suit for foreclosure.^ § 168. The costs and expenses of a foreclosure suit and sale should be deducted froin the proceeds. But in case of an un- founded defence and consequent delay, the defendant should be personally charged with them.^ § 168 a. A junior mortgagee, redeeming from a foreclosure sale under a decree on a prior mortgage, must pay the costs of the foreclosure suit, though not a party .^ § 169. Where a bill of foreclosure was filed against one, to whom the mortgagor had devised the estate, but who did not accept the devise, nor take or claim any benefit under the will ; upon putting in a common disclaimer, the defendant was held entitled to costs.^ § 170. Where the defendant in a suit for foreclosure has tendered the sum due after the filing of the bill ; the plaintiff recovers costs only up to the time of such tender.^ § 171. Where a prior incumbrancer is obliged to appear in a foreclosure suit to protect his rights, his necessary costs shall be first paid from the proceeds of sale.^ § 172. In Massachusetts it was held, that, under St. 1798, eh. 77, the Court might at its discretion award costs to either party, as equity required ; and where the defendant failed in his defence, having attempted to deprive the plaintiff of his right to redeem by objections, some of which were groundless and unreasonable, and the plaintiff was also in fault, having claimed to have the mortgage discharged when only a part of the debt had become due and payable ; neither party was al- lowed costs.' 1 Pettibone v. Stevens, 15 Conn. 19. See Hurst v. Hurst, 19 Eng. Law & Eq. 2 Jones V. Phelps, 2 Barb. Cli. 440. 385. See Lewis v. De Forest, 20 Conn. 427. 5 Williams v. Sorrell, 4 Ves. Jr. 389. 3 Gage V. Brewster, 30 Barb. 387. 6 Mayer v. Salisbury, 1 Barb. Ch.546. * Higgins V. Frankis, 1 Eng. Rep. 71. "^ Saunders v. Frost, 5 Pick. 260. CH. XXXII.] FORECLOSURE, ETC. — PLEADING, ETC. 235 § 173. If a first mortgagee refuse to accept payment from a second mortgagee, altliougli without the concurrence of tlio mortgagor ; he will not recover costs in a suit for foreclo- sure. Perhaps, in strictness, he is not bound to assign the debt.i § 174. Where the debt is paid aft^r commencement of suit, the plaintiff may discontinue without costs to sul)sequent in- cumbrancers, who have aj)peared, or to the mortgagor.- § 175. Where it appeared that the whole debt was past dtie and a considerable amount of interest unpaid, and that the owner of the equity of redemption in possession neglected to pay the taxes ; and where the evidence tended to show, that he had endeavored to obtain tax deeds upon the property to defeat the mortgage ; and also that the premises were not an ade- quate security, and that the parties personally liable were not able to pay the deficiency which might arise upon a sale : held, a receiver should be appointed.^ § 176. In a foreclosure suit in Nevada, the Court will ap- point a receiver, to act between a sale and the execution of a deed to the purchaser, when the proj)erty is inadequate to pay the mortgage debt and the mortgngor is insolvent, when the rents have been pledged to the payment of interest, but are misapplied, and when the mortgagor is guilty of permissive waste and threatens to destroy the pro})crty. A receiver can- not be appointed at the commencement of the suit.'* § 177. A receiver will not be appointed to take charge of mortgaged premises after judgment for foreclosure, when the property is not going to waste, and does not need rei)airs, and the mortgagee has ample security for tlie judgment in an ap- peal bond.^ Such appointment, when the mortgagor is in the military service of the United States, is in violation of the (Iowa) Act of April 7, 1862, which exempts the property of volunteers from sale under deeds of trust, mortgages, or judg- ments.*^ 1 Smith V. Green, 1 Coll. 555. ♦ Hyman v. Kelly, 1 Nev. 179. 2 Gallagher v. Egan, 2 Sandf. 742. » Adair v. Wright, IG Iowa, 385. * Finch V. Houghton, 1'.) Wis. 149. 6 Ibid. See Cortleyea v. Hathaway, 3 Stockt. 39. 236 THE LAW OP MORTGAGES. [oh. XXXIII. CHAPTER XXXIII. FORECLOSURE SALE. 1. Sale of the mortgaged premises under a decree of foreclosure ; forms of proceeding. 2. Purchase by the mortgagee him- self. 8 a. Necessity and effect of the Master's report. 10 a. Order of sale of different prem- ises. 11. Distribution of proceeds. 31. Opening of a foreclosure. G2. Miscellaneous points of practice. Effect of the sale upon the rights of the parties. § 1. With regard to the forms of sale, in foreclosure suits, and the minute points of practice connected therewith, there * is of course much diversity in the different States, (a) A few prominent and somewhat miscellaneous points only need be referred to. § 1 a. Equity has power, upon the foreclosure of a mort- gage, to order a sale 07i credit.^ (5) It is held that this cannot 1 Lowndes v. Chisholra, 2 McC. Ch. 455. (a) As to the effect of a sale upon subsequent titles, see King v. M'CuUy, 38 Penn. 76. See, also, Atkinson v. Richardson, 14 Wis. 157. A sheriff's sale under a decree of foreclosure is no evidence of eviction, till followed by a deed, or a suit for possession, lleasoner V. Edniundson, 5 Ind. 393. In New York no title passes, nor can ejectment be maintained, till the affidavits are re- corded. Bryan v. Butts, 27 Barb. 503. A mortgage being indivisible and only accessory to the debt, a decree cannot properly be rendered for the. sale of the property mortgaged in an action via ordinaria, without parties before the Court against whom a judg- ment may be rendered for the whole debt. Salory v. Chexnaidre, 14 La. An. 567. It is no objection to a judgment for the sale of mortgaged premises, that it does not order the sale of land embraced in the mortgage to which the defendant had no title. Castro v. lilies, 22 Tex. 479. See Lawler v. Claflin, 22 How. (U. S.) 23. (i) In Louisiana, where property has been sold to satisfy a mortgage claim, in general, payment to the sheriff will not exonerate the purchaser, who is required to retain the balance in his hands, in order to satisfy special subsequent mortgages. He has no right to collect this surplus ; but, if the funds are paid over to him, and he pays the special mortgage, the purchaser is thereby exonerated. Cummings v. Erwin, 15 La. An. 289. CH. XXXIII.] FORECLOSURE SALE. 237 be done without consent ; but that tlic Master may, upon ap- plication by the plaintiff, sell on credit for the amount due on the mortgage, and, as to the residue, for cash.^ § 1 6. A sale will be postjyoned for any immediate or impend- ing calamity, at the place where the property is situated, by which civil business will be suspended. But tear does not come under this head.^ So, where a settlement is proposed by the mortgagee, a sale may be postponed for six weeks, the de- lay being mutually beneficial.^ § 1 c. "Where a sale is decreed, the writ of possession may be issued, without notice of the a))plication to the opposite party ; but the discretion of the Court is to be governed by the condition of the crops.'* § 1 d. AVliere property was sold under a decree of foreclo- sure ; held, the defendant was not entitled to point out partic- ular property, as the execution was only against the property mortgaged.^ § 2. It is a practice not uncommon, for the mortgagee himself to become the purchaser, in order that he may thereby gain an absolute title. Upon this subject it has been lield, that the mortgagee may himself purchase the premises ; and the small- ness of the price, compared with the real value, will not fur- nish sufhcient ground to set aside the sale ; though in some instances the sale is held less conclusive than in ordinary cases, for this cause.*' So a valid agreement may be made, that the buyer at a foreclosure sale shall hold the property in trust for the mortgagee.'^ And only the mortgagor himself can take the objection that the mortgagee is the purchaser.^ § 2 a. On the ojjier hand, where a foreclosure was had for the benefit of an assignee, and lie bid in the property, the sale was held void.^ So a decree was opened after a sale by the 1 Sedgwick i'. Fisli, Ilopk. 594. Van Hook v. Tlirockmorton, 8 Paige, 2 Aston L-. Romayne, 1 John. Cli. 33; Waller i;. Harris, 20 Wend. 555; 310. See Blossom v. Kailroad, 3 Wall. Goff v. Robins, 33 Miss. 153. 196; Moore v. Titman, 35 111. 310. ^ 7 Lockwood v. Mitchell, 7 Ohio (N. 3 Ibid. S.), 387. < Hailingcr r. Waller, 9 B. Mon. G7. » Edmondson v. Welsh, 27 Ala. * Flcnmiing v. Powell, 2 Tex. 225. 578. 6 Mott V. Walkiey, 3 Kdw. 590; '•> Cameron v. Irwin, 5 Hill, 272; Tripp V. Cook, 26 Wend. 146. See Torrey v. Bank, &c., 9 Paige, 649. 238 THE LAW OF MORTGAGES. [CH. XXXIII. Master, wlicre the complainant purchased, and had not sold or mortgaged.^ § 2 J. If a mortgagee purchase at a void execution sale, and enter satisfaction on the mortgage ; a decree in a suit by the debtor, setting aside- the sale, will also order payment of the mortgage debt under penalty of foreclosure.^ § 2 (?. A mortgagee may claim interest till the sale is con- firmed by the Court, though he has himself purchased the property .3 ^ 2d. Where a mortgagee purchased under a decree of foreclosure, being at the same time a trustee of the equity of redemption, and afterwards made a resale of the premises at a large advance, and credited the trust estate with the amount; he was not allowed afterwards to claim the surplus proceeds, on the ground that the resale was upon his own ac- count.* § 2 e. Where the decree expressly authorizes any party to the suit to purchase the property ; this merely dispenses with the operation of the technical rule against such purchase, but does not autliorize a purchase or holding contrary to equity.^ § 2/. When a mortgagee buys a portion of the land, he will not be allowed the full price out of the surplus arising from a sale in foreclosure, but only the amount which such portion sold for, in proportion to the other land.^ § 2^. A., in 1829, conveyed to B. a part of certain land, whicli was previously subject to a mortgage to C, and C, on the same day, released this part to B. The next day, C. assigned the mortgage to D., wlio liad notice of tlie release. On a bill filed by D., in 1844, a decree was made for tlie sale of all the land described in the mortgage. B. was made a party to the bill, but did not appear. At the sheriff's sale, all the land described in the mortgage was set up and struck off to D., and the sheriff, in pursuance of an arrangement between D. and E., made the deed to E., who also had notice of the release. E. brought ejectment against B. for the part so con- 1 Millspaugh v. McBride, 7 Paige, * Pierson v. Tlionipson, 1 Edw. Ch. 509. 212. 2 Lylstra v. Keith, 2 Desaus. 140. ^ Conger v. Ring, 11 Barb. 356. 3 M'Lean v. Lafayette, &c , 4 M'L. « Frost v. Peacock, 4 Edw. Ch. 678. 430. CH. XXXIII.] FORECLOSURE SALE. 239 veyed and released to liitn. On a bill filed by B. against E., stating these facts, a preliminary injunction was awarded.^ § 2 7i. The defendant purchased land, subject to two mort- gages, which he agreed to pay, but failed to do so, and suffered the first to be foreclosed, against him and the plaintiff, the second mortgagee ; himself becoming the purchaser for the amount of the first mortgage. In a suit by the plaintiff to foreclose his mortgage ; held, the above proceedings were no bar, but operated to extinguish the first mortgage.^ § 2 i. Where a mortgagee forecloses, purchases the prop- erty, and suffers it to remain in the possession of the mort- gagor after the sale, such retention of possession is a badge of fraud as against other judgment creditors.^ § 2y. The assignee of a mortgage, on a sale under a decree of foreclosure, became tiic highest bidder, but, for a sum of money in hand paid l)y the assignor, and his promise to pay the residue of the debt for which the assignment was made in a short time, agreed to hold the property as security, and in trust for the assignee. Held, that he should convey to the assignor, on payment of the balance of the debt due and costs of foreclosure and sale, accounting for and deducting not only the actual profits which he had received of the property, but also such as he might have received but for his wilful default, and also the amount of waste and dilapidation committed or suffered by him in the property.* § 2 k. "Where a mortgagee purchased under circumstances rendering the purchase inequitable, it was held, that a dis- tinct transaction between the parties, by which the mort- gagee had sustained an injury, afforded no ground for refusing a resale.^ § 2 ?. Where a bill to foreclose a mortgage is filed in the name of A., but in fact for the benefit of B., and A. becomes the purchaser of the mortgaged property, and refuses to pay the purchase-money ; B. may in her own name move for an attachment to compel payment of the purchase-money.^ 1 Picrson r. Rycrson, 1 Ilalst. Cli. ■* Southgafe v. Taylor, 5 Munf. 196. 420. -i Hilton V. Bissell, 1 Sandf. Ch. 407. ^ Tripp i-. Cook, '26 Wend. 143. '^ Williams v. Kelscy, 6 Geo. 365. ^ Lyon i-. Elliott, 3 Ala. 654. 240 THE LAW OF MORTGAGES. [CH. XXXIII. § 2 m. Ill such case, where it appeared tliat the refusal to pay the purchase-money was because of a prior forecU)sure of the same mortgage by A., it was held that the attachment ought not to have issued. ^ (rt) § 3. If the purchase by the mortgagee is not bond fide, he will hold the property only as security .^ § 4. Where a decree of foreclosure was obtained by fraud, the debt having been previously satisfied, and the mortgagee himself purchased a part of the land ; he was ordered to re- lease it to the owner of the equity, and account for the rents and profits, and for the sums paid by innocent purchasers at the sale.^ § 5. Where a bank is bound to pay off a mortgage, so as to relieve the property of a third person from a foreclosure sale, the cashier, being the agent of the bank, cannot purchase the property on his own account, and thus render the bank liable to indemnify such person for the loss of his property.'^ § 6. In New York, if upon a statute foreclosure the mort- gagee purchase, the foreclosure is not complete without the affidavits, which stand in place of a conveyance ; and such affidavits are conclusive, and cannot be controlled by parol evidence.^ Thus, where the title, set up by a plaintiif in eject- ment, is founded on the foreclosure of a mortgage, by adver- tisement and sale under the statute, and he is the mortgagee and purchaser, and receives no conveyance from the mort- gagor ; he must show that all the requisitions of the statute are complied with, and especially that the affidavits of the publication, and of posting and service of the notices of sale, • 1 Lyon V. Elliott, 3 Ala. 654. ^ Loomer v. Wheelwright, 3 Sandf. 2 Lyon V. Jones, 6 Humph. 533. Ch. 135. See Middlesex Bank v. Mmot, 4 Met. * Torrey v. Bank, &c., 9 Paige, 650. 325. 5 Arnot v. M'Clure, 4 Denio, 41. (a) In analogy with the doctrine in debts, and the property was conse- the text, where, at a sheriff's sale of quently sold at a sacrifice, and bought the property of an insolvent corpora- by A. ; it was held, that the sale was tion, on execution, competition was pre- unlawful, and that A. was a trustee of vented, by an agreement between a the property for the company and its mortgagee of a part of tlie property and creditors. Hamburg, &c. v. Edsall, 1 a portion of the creditors, that A., one Halst. Ch. 249 ; Edsall v. Hamburg, of the number, should bid off the prop- &c., lb. 658. erty, for the purpose of securing their CH. XXXIII.] FORECLOSURE SALE. 241 &c., arc made and completed before the commencement of the action. Until they are made, no title vests in the pur- chaser.^ § 7. Ejectment by one claiming nndcr the mortgagor against one claiming under the mortgagee, who purchased upon a statute foreclosure. The auctioneer's aflidavit stated a sale of only a part of the mortgngcd premises. Held, the defend- ant should not be permitted to prove a mistake in the aflidavit in this respect; though it might be otlierwise, had a stranger purchased under the foreclosure.^ § 8. It has been held in Alabama, that the mortgagee may purchase the estate, where the sale is made upon petition of the mortgagor's personal representative.^ (a) § 8 a. With regard to the preliminary or interlocutory action of officers of the court, prior to any final judgment, it is held, that, where a mortgage is established in a suit to fore- close, by default or otherwise, a reference, to ascertain the amount due, shall be ordered, of course; and any objections to the enforcement of the mortgage must be taken by excep- tion to tlic report.^ 1 Layman r. Wliiting, 20 Barb. 559. * Blake v. Nelson, 1 Dev. Cli. 418 ; 2 Arnot V. jM'Chire, 4 Deiiio, 4L Mlll'ord i-. Williams, 4 Ilalst. Cli. 53G ; 3 Duval V. P. & I\I. Bank, 10 Ala. Jewett i-. GiiiUl, 42 Maine, 246. 636. (a) Where a mortgniree bid in the premises, and received a certificate, that lie would be entitled to a convey- ance in three jears ; held, his accept- ance of such certificate was not a waiver of his right to have an earlier convey- ance. Carroll v. Rossiter, 10 Min. 174. In California, a mortgage docs not vest in the mortgagee any estate, and he cannot become owner except by purchase under judicial decree. Good- enow V. Ewer, 10 Cal. 461 ; Boggs i'. Hargrave, ib. 559. Wiiorea mortgagee purchased at the foreclosure sale, sold to A., and died ; held, A. was not entitled, without no- tice to the representatives, to have the foreclosure opened, and himself substi- tuted as plaintiff. Abadie v. Lobero, 36 Cal. 890. M., assignee of a second mortgage, subsequently came into possession by assignment of a decree of foreclosure of the first, and at the sale under the decree purchased the premises, and then assigned the certificate of pur- chase, and also gave a quitclaim deed to K., who failed to record it, and did not redeem. Subsequently L. levied executions on two judgments against the mortgagor upon the premises, re- deemed them from tlie sale under the first mortgage, recorded his certificate of redcmi)tion,\)ought at the sale under the executions, and received a sheriff's deed. Held, by the redemption the legal title became vested iu L., and 16 242 THE LAW OF MORTGAGES. [CH. XXXIII. § 8 b. On a bill to foreclose a mortgage, the order, refer- ring the bill to a Master to report an account, stated that " the mortgage and notes " were " produced and proved to the Court," and the Master reported, "that, on comparing the mortgage bill and notes, he finds due the complainant two notes," &c. Held, that these recitals, with the possession of the mortgage and notes by the complainant, were sufficient to show that the testator was the pro{)rietor of the notes by assignment, especially after a decree pro confesso} § 8 (?. A decree for a foreclosure and sale of the mortgaged premises is not erroneous, because it does not expressly require the Master to report his proceedings to the Court, but directs him to make a deed to the purchaser.^ 1 Cullum V. Batre, 2 Ala. 415. 2 Ibid. constituted a bar to foreclosure of the second mortgage, and the fact, that tiie sale under the mortgage did not satisfy the debt, would not oblige L. to redeem from the unsatisfied balance. Lloyd V. Karnes, 45 111. 62. A mortgagee foreclosed by adver- tisement, bought in the premises, sold them to bona fide purchasers, and, so far as was apparent by record or other- wise, the proceedings had been regular and correct ; but judgment creditors of the mortgagor, having a lien, showed that the foreclosure was fraudulent, the debt having been discharged, and claimed the premises. No notice of the discharge or payment appeared on the record. Held, the sale for foreclo- sure was equivalent to a sale under a decree in equity, and the mortgagor, his assigns, and the plaintiffs, having had notice by advertisement, and hav- ing failed to object at that time, were barred as against bond fide purchasers. Warner v. Blakeman, 36 Barb. 50L An executor may purchase, at his foreclosure sale, for the benefit of the estate, and to prevent a sacrifice. Hol- comb V. Holcomb, 3 Stockt. 281. An administrator of a mortgagee, who sells under the mortgage, and buys himself, at a nominal sum, and afterwards sells at a high price, does not thereby become a trustee for the mortgagor for the profits. Woodlee v. Burch,43 Mis. 231. Where mortgaged premises were sold under statutory foreclosure, and no persons were present but the auc- tioneer, who was the attorney of the mortgagee and bid off the premises for his client, the sale was held void. Campbell v. Swan, 48 Barb. 109. When the vendee of mortgaged land agrees, as part of the consideration, to discharge the mortgage debt, and that the land shall remain bound by the mortgage until it is so discharged; the vendor is not a mortgagee, within the rule which precludes a mortgagee from purchasing at his own sale. Mc- Neill's V. McNeill's, 36 Ala. 109. A mortgagee, who has purchased the premises under foreclosure, cannot maintain ejectment against one in pos- session under contract of sale, unless he show a valid statutory foreclosure as against the mortgagor. Dwight v. Philhps, 48 Barb. 116. Wlien the mortgagee purchases, he will be presumed to have full notice of all defects in the proceedings. Boydy. Ellis, 11 Iowa, 97. CH, XXXIII.] FORECLOSURE SALE. 243 § 8^/. Wlicrc, on a petition for surplus money accruing upon a sale under a decree of foreclosure, a reference is made to a Master, his report, and a final order of the Court, must he made, hefore the money can he paid over.^ § 8 e. In a suit to foreclose a mortgage, in the order of reference to a Master, as against ahsent defendants, to take proof of the allegations in the hill, preparatory to a hearing, the plaintiff was allowed to insert a direction to the Master, to compute the amount due on the mortgage.^ § 8/. In New York, sales of mortgaged premises hy a Mas- ter under a decree of the Court, according to the statute (Scss. 36, ch. 95, § 11), must he made hy the Master, personally, or under his immediate direction."^ § 8 ^. AVhere there is an order of reference to a Master to ascertain the amount due on a mortgage, the cause, on the coming in of his report, must be set down for hearing on the requisite notice ; and a decree of sale, in sucli a case, entered immediately on filing the report, was set aside for irregularity.* § 9. In New York, an order to confirm a Master's report of a sale, under a decree in a foreclosure suit, is not necessary to pass a title. This passes by his deed ; and he is authorized to convey, after enrolment of the decree, and before confirma- tion of the report. The confirmation relates back to the date of the deed.^ § 10. But, in Mississippi, a sale for foreclosure must be con- firmed by the Court,^ unless there be some equivalent act of parties, such as lapse of time.' (a) 1 V. Allen, 1 Green, Ch. 388. 5 Fort v. Burch, G Barb. 60. '^ Corning v. Baxter, 6 Paige, 178. 6 Sanders v. Dowel!, 7 Sm. & M. 3 Ileyer v. Deaves, 2 John. Ch. 206. See Anderson v. Davies, 6 Munf. 154. 486. * Dean v. Coddhigton, 2 John. Ch. "^ Gowan v. Jones, 10 Sm. & M. 201. 164 ; Tooley v. Gridly, 3 Sm. & M. 413. (o) A much stronger case must be a new company fbrnuMl by tlie bond- made, to set aside a sale after confirma- holders, who were the purchasers ; tion of the commissioners' report, than held, that bondholders who had elected before. Bullard v. Green, 10 Mich. 268. to become stockholders in the new Where a land-grant mortgage given company could not appeal from the by a railroad had been foreclosed, and order confirming the sale. Also, that 244 THE LAW OF MORTGAGES. [CH, XXXIII. § 10 a. With regard to the mode of selling, and more par- ticularly the point whether the whole or a part of the property shall be sold ; it is held, that it is not, in general, irregular to authorize the Master to sell mortgaged premises " in lots, or in whatever way may best comport with the interest of the defendant," unless infants are interested, in which case it should be referred to him, to report in what manner the prem- ises can best be sold.^ The Master should be governed by the instructions of the owner.^ He may sell a sufficient por- tion without special order.^ A decree which directs a sale of the whole will be held correct, where it does not appear that the premises were worth more than the amount of the debt.^ § 10 h. Where only part of the money secured by a mort- gage is due, and the bill is taken ijro confesso, the plaintiff is entitled to have a clause inserted in the common order of refer- ence, of course, directing the Master to ascertain whether the premises can be sold in parcels, without prejudice to the inter- est of the parties.^ § 10 e. On a bill for foreclosure and sale of mortgaged premises for non-payment of interest, the whole or part of the premises will be sold, as the Court may deem just and neces- sary, on a special report of a Master as to the situation of the premises, and a further order from time to time may be ob- tained, as the interest or principal becomes due, on the Mas- ter's report of the amount.^ (a) I Cullum V. Batre, 2 Ala. 415. See 2 Brown v. Frost, 1 Hoffm. Ch. 41. ■Ryerson v. Boorman, 3 Halst. Ch. 167, '^ 1 Clark, 217. 640 ; Lacoss v. Keegan, 2 Cart. 406 ; ^ Phillips v. Ricards, 3 Ind. 401. "Wiley V. Angel, 1 Clark, 217 ; Worley '" Everitt v. Huflfman, 1 Paige, 648. V, Nayloe, 6 Min. 192; Laverty v. ^ Brinckerhoff v. Thallhimer, 2 Moore, 33 N. Y. 658 ; Treiber v. John. Ch. 486 ; Ellis v. Craig, 7 John. Shaffer, 18 Iowa, 29 ; Benton v. Wood, Ch. 7. 17 Ind. 260 ; Cissna v. Haines, 18 Ind. 496. a bondholder, all whose rights were purchaser, is not a defence to an action saved in the order of confirmation, had for recovery of the purchase-money no ground to complain of it. Crawshay brought after the confirmation. Mayer V. Soutter, 6 Wall. 739. v. Wick, 15 Ohio St. 548. Long delay in procuring the con- (n) The neglect by a Master, to ful- firmation of a judicial sale, resulting in fil a promise to give a party interested depreciation of the property sold, but in a decree of foreclosure actual per- not objected to during the delay by the sonal notice of the day of sale, is not CH. XXXIII.] FORECLOSURE SALE. 245 § 10 d. And where the mortgage was to secure several bonds, some of wliich were not due at the time of the decree, but the payment of the second wouhl become due before the time of the sale, the payment of that was included in the order for sale.^ § 10 ('. The provision of the New York Revised Statutes (2 R. S. 103), directing a sale of so much only of mortgaged premises, where they can be sold in parcels without injury, as will pay the amount due, with costs, is peremptory upon the Court, or, at least, cannot be departed from, except where the plaintiff has some equitable claim upon the rents and profits of the premises, which will accrue before the debt becomes payable.2 § 10/. "Where there arc infant defendants to a bill to fore- close, it should be referred to a Master to report, whetlier it will be for their interest to sell the whole mortgaged premises together or in parcels ; and if in parcels, what parcels, and which it will be for their interest to sell first. And the sub- stance of the evidence bearing upon this point should be re- ported.3 § 10^. A mortgagee agreed with a third person, with the 1 Lyman v. Sale, 2 John. Ch. 487. 2 Bank, &c. v. Arnold, 5 Taige, 38. 8 Walker v. Bank, &c., 6 Ala. 452. such an ofScial delinquency, as would Although it is the duty of a Master, justify setting aside a sale. Cronijiton after having made a sale, to report at V. Baldwin, 42 111. 165. the next term of the Court ; the sale The power of courts, to appoint will not be set aside when either party special Masters for sale under a mort- might have compelled him to make gage, is not taken away by the (Ohio) his report, even though not filed for Code ; nor is it essential, unless re- more than a year after the sale. Ibid, quired by the order of the Court, that Where the Master executes a decree such special Master give bond, or take of foreclosure upon default, he must, an oath of office. (Code, §§ 582, 583.) like a sheriff under an execution, ascer- Mayer v. Wick, 15 Ohio St. 548. tain whetlier the homeslaid right exists. It is not necessary that a Master's If so, he must proceed in the manner report of a sale should set out the pointed out in the statute ; otherwise, notice, if he reports that he has given after the report, upon motion to set the notice required by the decree. But, aside the sale, tlie Court will liear the on an application for confirmation, the evidence, and, if the right exists, set Court must be satisfied that the sale aside the sale. Ibid, had been made in accordance with the decree. Moore v. Titman, 38 111. 358. 246 THE LAW OF MORTGAGES. [CH. XXXIII. consent of the mortgagor, to sell the mortgaged premises, and the mortgage was to be used to perfect the title ; and the prem- ises were afterwards purchased by such third person, under a foreclosure. On a subsequent application by the mortgagor for a resale, on the ground that a clause in the decree, direct- ing the premises to be sold in parcels, had been erased before signature, and that a portion of the premises would have sold for enough to pay the debt, a resale was denied.^ § 10 h. In Illinois, where a mortgage covers several tracts of land, which are decreed to be sold to satisfy the mortgage debt, the commissioner making the sale should sell the tracts separately, and stop the sale when sufficient has l:)een sold to pay the debt ; and if he does not, but sells all of them together, the Court may set the sale aside, on the coming in of the report.^ § 10 i. The report of a Master, " that it would be for the interest of the defendants to sell the estate in separate lots, if the premises can be conveniently divided," is not sufficiently definite to be the foundation of a decree for sale of the prop- erty. The report should state, whether the property is divisi- ble, which part it was for the interest of the defendants to have sold, and the evidence upon which the report is founded.^ § 10 y. So a decree, which leaves it in the discretion of the Master to sell the whole or a part of the property, is erro- neous.* § 10 Ic. But tlie Master is not bound to divide land mort- gaged as an entire parcel into lots, without request of the parties.^ § 10 /. A mortgage given for part of the purchase-money described the land as an entire lot. The mortgagor afterwards laid it out in lots, with streets, to be sold for village purposes ; caused a plan to be made of it, and sold some of the lots. A creditor of the mortgagor, having recovered a judgment subse- quent to the recording of the mortgage, moved that the mort- gagee should, upon foreclosure, sell the land by lots as laid out. Held, such motion should not be allowed absolutely and as 1 Wiley V. Angel, 1 Clark, 217. * Ibid. 2 Waldo V. Williams, 2 Scam. 470. 5 WoodhuU v. Osborne, 2 Edw. Ch. 3 Walker v. Hallett, 1 Ala. (N. S.) 615. 879. CH. XXXIII.] FORECLOSURE SALE. 247 of right ; nor as a favor and upon terms, where the mortgagee had oifered thus to sell, upon receiving security for any loss thereby caused to the amount of one-third of the debt.^ (a) 1 Griswolil V. Fowler, 24 Barb. 135. (a) Property, consisting of divers tlie quantity to be sold, tlinn a com- distinct pjircels of land, was all sold in niand to raise the sum required out of one lot, when a fair sale of a portion would have satisfied the claim. Held, the sale should be set aside. Boyd v. Ellis, 11 Iowa, 97. Ace. White v. Watts, 18 ib. 74 ; Beauchamp v. Leagan, 14 Ind. 401. the mortgaged jtremises. I'urkhurst i;. Cory, 3 Stockt '2:33. In either case, and in the absence of an exjiress direction to sell the whole, it is his dut}' to sell only enough to satisfy the sum named, provided a division can Two parcels of land, previously held, be reasonably and properly made ; and used, and mortgaged together as one this question is left to his discretion, farm, may be sold as one. Anderson which will be controlled by the Court, V. Austin, 34 Barb. 319. only on proof of abuse. Ibid. Where mortgaged land lias been In Michigan, in proceedings to fore- subdivided into town lots by a grantee close by advertisement, since they are of the mortgagor, it need not be sold ex parte, the directions of the statute in lots; and a purchaser of any lot is must be strictly complied with. Upon not entitled to redeem it alone, if he foreclosure by advertisement and sale of does not pay the whole debt. Street three separate lots, one 'deed was given, V. Beal, 16 Iowa, 08. and a single consideration named. A decree of foreclosure was passed Held, the pieces should have been sold on two quarter-sections of land. The sheriff offered first one forty-acre lot, then another, then an eighty-acre lot, but received no bid. Held, his then separately, with a distinct consideration for each, and the foreclosure was not complete. Lee v. Mason, 10 Mich. 403. In Wisconsin, when land is so ir- ofTering the entire 160 acres was not regularly sold on execution as to render contrary to the (Ind.) statute, which the sale voidable, but not void, as, requires such a sale to be by parcels. (2 Uev. Sts. § 466, p. 141.) Sowle v. Champion, 10 Ind. 105. Where the instalments secured by a mortgage are all due, it is not neces- when ofFered in gross and not in sepa- rate parcels, — a subsequent mort- gagee, if the mortgage debt falls due within the two years allowed for re- demption, may make the purchaser at 'sar}' tor the Court to inquire as to the the e.xecutioh sale a party to an action susceptibility of division of the mort- to foreclose, and pray a redenn)tion gaged premises. Smith v. Pierce, 15 against him. Kaymond i-. I'auli, 21 Ind. 210. Wis. 531. A judgment, reciting that the prem- Where judgment of foreclosure ises cannot be sold in parcels, is valid, stated, that a part of the mortgaged although there has lieen no order of premises had been released; but by reference to take proof on this point, mistake the Master's deed covered the Stewart v. Nettlctun, 13 Wis. 405. whole premises : held, the deed had no A decree, commanding a sheriflT to effect upon the released portion. Lav- sell so much of the premises as may erty v. Moore, 32 Barb. 347. be sufTicient to satisfy the sum named. Where the premises can be sold in imposes on him no ditlercnt duty as to parcels, a judgment, lor a sale of suffi- 248 THE LAW OF MORTGAGES. [CH. XXXIII. § 10 m. The sheriff, on a foreclosure sale, has no authority to reserve the waj-going crops. Though he makes such cient property to raise the sum due, need not be a conditional one, or order a stay of proceedings upon payment of the amount due. The judgment sliould provide for such stay, wliere tlie prem- ises cannot be sold in parcels, and a part only of the debt is due. Roe v. Nicholson, 13 Wis. 373. Where the mortgagor sells in differ- ent parcels, the portion unsold must be first subjected, on a bill to foreclose, and the others in the inverse order of their sale. In determining what each owner must pay in order to redeem, each piece is to be estimated at its value at the time of the bill, including improvements made by the purchaser. Mobile V. Huder, 35 Ala. 713; Ogden V. Glidden, 9 Wis. 46 ; State v. Titus, 17 Wis. 241. See Day v. Patterson, 18 Ind. 114 ; Worth v. Hill, 14 Wis. 5.59 ; Williams v. Perry, 20 Ind. 437. One of three lots mortgaged to the State was afterwards mortgaged to F. The other two were mortgaged to T. F.'s mortgage was subsequently fore- closed, but no sale made ; and W. pur- chased the equity of redemption. An action was afterwards commenced to foreclose the mortgage to the State, pending which T. purchased F.'s fore- closure judgment. Held, that W. ac- quired a right, as against T., to have the lots covered by T 's mortgage sold first, on a foreclosure in favor of the State, notwithstanding T.'s purchase of F.'s judgment. State v. Titus, 17 AVis. 241. In Minnesota, a mere sale by a mortgagor of a part of the mortgaged premises does not make the portion convej'ed a " distinct tract or lot," within the meaning of the statute, directing that a foreclosure sale of land in distinct tracts shall be in separate parcels. Paquin v. Braley, 10 Min. 379. Two tracts of land, A. and B., were mortgaged, and subsequently B. wa8 mortgaged a second time. Held, in a suit to foreclose both mortgages, a pur- chaser of A. could insist upon having B. first sold, if of sufficient value to satisfy both. But where such pur- chaser made default, and the judgment simply directed the sale of A. and B., and they were sold in one parcel for less than the mortgage debt ; held, the sale should not be set aside upon his application, with excuse of default, un- less he showed actual injury; that afii- davits of value, where a resale is asked, on the ground of inadequacy of price, should be full and explicit, and by per- sons actually acquainted with the premi- ses and their value ; and that where the party applying does not offer to redeem, or to advance any thing beyond the former bid, nor show that any other per- son offers or is likely to offer a reasona- ble advance, nor offer to indemnify the plaintiff for any loss by a second sale, such application should not be granted. Warren v. Foreman, 19 Wis. 35. In a foreclosure sale of the mort- gagor's homestead and other lands, the sheriff, contrary to his request, neg- lected to offer first the other land, and sold tlie homestead alone for the amount of the judgment. Held, as there were creditors of the mortgagor (not parties to the suit), who had a lien upon the other land, and none upon the home- stead, it was not an abuse of discretion to confirm the sale. Jones v. Dow, 18 Wis. 241. See Grapengether v. Feger- vary, 9 Iowa, 163. A special execution under a decree of foreclosure required the sheriff to sell a lot of land " in conformity with the provisions of the statutes in such case made and provided." Held, he was not required to sell the whole lot. Southard v. Perry, 21 Iowa, 488. CH. XXXIII.] FORECLOSURE SALE. 249 reservation at the sale, yet, if no clause to tliat elTect is con- tained in his deed, it will pass both the land and the crop upon it.^ § 11. "With regard to the application of the pj'occeds of sale : («) where there arc several mortgage notes falling due at different times, and a bill to foreclose is filed after all arc due, the proceeds of sale will l)e aj)plied to all p?-c> rata; al- though the one falling due first is secured by an accommoda- tion indorser.^ § 11 f/. Where two notes, secured by mortgage, are assigned to different persons, as security for advances made to the mort- gagee, one note separately from the mortgage and the other with the mortgage ; both assignees are equally entitled to the benefit of the mortgage security to the extent of their debt; and, if the proceeds of sale under the mortgage will not satisfy the mortgage debt in full, yet the assignees are entitled to full payment for their advances if the proceeds are sufTicient, and the assignor cannot come in for a dividend in the jn-ocecds, by virtue of any interest in the mortgage, on account of the ex- cess of the mortgage security over the advances made.'^ § 11 b. There shall be an equal distribution between the mortgagee, who retained one note, and the assignee of the other notes and of the mortgage."* § 11 c. In Pennsylvania, where a sheriff's return, under the Act of April 20, 1846, was in favor of the holder of a mort- gage for the purchase-money, and the sale was on one of the mortgage notes ; held, the mortgagee was entitled to tlic money, though the other mortgage notes were not due at the time of sale.^ 1 Howell V. Schonck, 4 Zabr. 89. 3 Waterman r. Hunt, 2 K. T. 298. 2 Parker v. Mercer, G How. (Miss.) * Bushaekl v. Meyer, 10 Oliio St. 320. See Neptune, &c. v. Dorsey, 3 334. Md. Cli. 334; Stewart v. Glenn, 3 Md. 5 Larimer's, &c., 22 Penn. 41. 323; Com. v. Wilson, 34 Ponn. 63; Hynes v. Morin, 12 La. An. 742. (a) See Reeder v. Carey, 13 Iowa, son v. La Crosse, 2 Wall. 283 ; Appeal, 274; Massie v. Sharpe, 13 ib. 542; &c., 47 Penn. 255; James v. Brown, Kimball v. Connor, 3 Kans. 414; llMlcb. 25; Atkinson v. Richardson, Sclienck v. Conover, 2 Beasl. 31 ; 14 Wis. 157. Smith V. Smith, lo Midi. 258 ; Brou- 250 THE LAW OP MORTGAGES. [CH. XXXIII. § 11 cl. Though, where a mortgage is ihade to secure several notes, the pr-oceeds of sale will be applied to all ijro raid ; a decree founded upon the sufficiency of the property to pay the whole mortgage debt, the bill being filed by the holder of one of tlie notes, will not be set aside upon a mere suggestion of mistake in this respect.^ § 12. Where an agent, with the assent of his principal, in- cluded in a mortgage executed by a third person to the princi- pal, upon the sale of land, a debt due himself, it was held, that the debt due the principal must be first paid out of the mort- gage, in the absence of any agreement to the contrary .^ § 13. A. gave a mortgage to his co-surety, B., to indemnify him against his liability. Held, that a court of equity might, although the mortgage was absolute on its face, inquire into the purpose for which it was given, and apply it to that use, and might order the mortgage to be cancelled, or the mort- gaged premises to be sold, and the proceeds applied towards payment of the judgments against the- principal and sureties.^ § 13 a. Premises sold under a mortgage were represented as incumbered, but were really subject to lien for a tax, and the purchaser refused to take them. Upon petition of the mortgagee, the Court ordered the Master to satisfy the lien from the proceeds.* § 14. Where land is conveyed with covenants against all incumbrances, and the vendor takes a mortgage for the pur- chase-money, if there be a prior mortgage on the premises, a decree of foreclosure of the vendor's mortgage will not be made, until he has paid off the prior mortgage ; or a sale will be decreed, the proceeds to be applied first to the satisfaction of the prior mortgage, and the amount so applied to be de- ducted from the amount of the vendor's debt.^ § 15. A sale of mortgaged property after foreclosure, under a common-law judgment in favor of other creditors, disposes only of the equity of redemption, and, therefore, the mortga- 1 Ferry v. Woods, 6 Sm. & M. 139. * Lawrence v. Carnell, 4 John. Ch. 2 Phillips V. Belden, 2 Edw. Ch. 1. 542. 3 United States v. Sturges, Paine, '" Van Eiper v. Williams, 1 Green, 625. Ch. 407. CH. XXXIII.] FORECLOSURE SALE. 251 gee cannot claim the' proceeds of such sale, though his mort- gage be older than the judgment.^ § 16. Where, after the death of a mortgagor, his equity of redemption is foreclosed, and the land is sold in the foreclosure suit, by wliich the equity of redemption is converted into a surplus of the proceeds of sale, it docs not thereby become personal property to which the administrator is entitled.^ § 17. Upon a statute foreclosure, the mortgagee is entitled to sell the premises, discharged of the lien of an instalment not yet due, and to retain the amount of the instalment out of the surplus proceeds.^ § 18. Where a deed is made, but not recorded, and the grantor is permitted to remain in possession of the land, and exercise all the rights of ownership, the grantee has no right to interfere with those who have in good faith taken a subse- quent mortgage or deed from the grantor ; and, if a mortgage so taken is recorded before such deed, the mortgagee is en- titled to a priority in'tiie disposition of the surplus arising from a sale in foreclosure.^ § 19. All debts secured by mortgage and due at tlie date of the decree of foreclosure, unless the mortgage give a prefer- ence to some of them, or unless the mortgagee, in assigning some of them, designed to create such preference, should be paid pro raid, if the fund is insufficient to pay tlie whole, whether as between the surety of the mortgagor and mortga- gee, or different assignees of the latter.^ § 20. A mortgagee is not liable to otlier incumbrancers, for the application of a surplus remaining after a sale, over and above his del)t, without actual notice thereof.^ § 20 a. On a bill to foreclose a mortgage, to which junior incumbrancers are made parties, the Court should decree that the balance of the money arising from tlie sale, after paying the mortgage debt, should be brought into court, to be paid over to the parties according to their respective equities. It 1 Howard v. Jones, 2 Geo. Decis. ^ Bank, &c. v. Tarloton, 23 Miss. 190. 173; Pugh v. Holt, 27 ib. 4G1. •i Cox r, McBurney, 2 Sandf. 5G1. « McLean i'. Lafayette, &c., 4 McL. 3 Cox V. Wlieeler, 7 Paige, 218. 430. < Frost i;. Peacock, 4 Edw. Cii. G78. 252 THE LAW OF MORTGAGES. [CH. XXXIII. is doubted whether a decree, imperfect iii this respect, would be reversil)le on appeal. ^ § 20 b. The Master may be ordered to inquire into the amount due to a subsequent mortgagee, and to make sale of enough to pay it.^ § 20 c. Subsequent (mechanics') liens were ordered to be satisfied by the sale of the property mortgaged, though no judgment had been recovered upon them, and though property had been sold to the amount of the mortgage.^ § 21. "Where property mortgaged is converted into money, the rights of the mortgagee are not changed, and the Court will order the money to be applied according to the previous rights of the parties."^ § 22. Where, in a foreclosure suit, the fund has been paid out on an order regularly obtained, a prior incumbrancer cannot obtain relief upon a summary application.^ § 23. Where successive mortgagees bring separate suits for a sale, which is made under the former mortgage, the latter may claim the surplus proceeds.^ § 24. Where there are conflicting claims of junior judgment creditors to the surplus proceeds of sale, they should apply to the Court, before the sale, to order such a sale, as will enable them to settle their respective rights upon the reference.'' § 25. Upon reference to a Master, to ascertain who are en- titled to the surplus money brought into court, the report should show a due summons of all parties entitled to notice; also, what parties attended ; and, if they did not assent to the report, it must be filed, and the usual order entered to confirm it, before an application for payment of the money according to the report.^ § 26. Such report should state the amount of the surplus, and, if the party obtaining the reference is not entitled to the whole, the report should show who is entitled to the residue ; 1 Clark V. Carnall, 18 Ark. 209. 5 Burchard v. Phillips, 11 Paige, ^ Beekman v. Gibbs, 8 Paige, 411. 66. » Livingston v. Mildrum, 19 N. Y. 6 Lee v. Boteler, 12 Gill & J. 323. (5 Smith) 440. 7 Snyder v. Stafford, 11 Paige, 11. * Astor y. Miller, 2 Paige, 68 ; Brown « Franklin v. Van Cott, 11 Paige, V. Stewart, 1 Md. Ch. 87. 129. CH. XXXIII.] FORECLOSURE SALE. ' 253 that tlic whole fund may be disposed of, on the comhig in of the report.^ § 26 a. Though a mortgagor in possession is the legal owner, and, on a sale of the premises under a prior incum- brance, may assign the sur[)lus, after satisfying the incum- brance, to the purchaser, in satisfaction of a pre-existing debt, such assignment will be subject to the lien of the mortgage, which will continue upon the land if such surplus is not paid.^ § 27. The complainant in a suit for foreclosure, and the i)ur- chaser at the Master's sale, are bound to notice the equitable interest of one who was in possession at the execution of the mortgage, and continues so to the time of sale, in a l)uilding erected by him upon the premises, for which he has advanced money under an agreement with the owner; and the sale will be presumed to have been made subject to such equitable in- terest. Hence, the party in question will have no claim upon the surplus proceeds of sale.^ § 28. The Court cannot order a sale, and also withhold the proceeds from tlie plaintiff.* § 29. Wlierc one claims an equitable lien upon the surplus proceeds of a foreclosure sale, the Court will not settle his title upon petition, if ho has failed without excuse to give no- tice of it to the i\[astcr who made the sale, or file it with the clerk in whose office such proceeds were deposited, or to pre- sent and establish his claim before the Master, in case an order of reference had been entered upon the application of some other claimant, before he was aware of his rights.^ (a) 1 Franklin v. Van Cott, 11 Paige, ■* Harrison v. McMcnnomy, 2 Edw. 120. Ch. 251. - Bartlett v. Gale, 4 Paige, 503. 6 J)q Rnyter v. Trnstccs, &c., 2 Barb. 3 Dellu^'teri). Trustees, &c., 2 Barb. Ch. 555. See Hatch r. Gavza, 7 Te.x. Ch. 555. 60. (a) When a mortgage is foreclosed that the surplus, if an\', be paid into for non-payment of an instalment, and court ; and tlie plaintifl" cannot be com- the premises, which are indivisible, are polled to receive any part which is not sold for more than is due, the Court may due. Walker v. Jarvis, IG Wis. 28. retain tlie surplus, and apply it to sub- Where the vendor of premises sequent instalments as they fall due. already incumbered has taken back McDowell V. Lloyd, 22 Iowa, 448. mortgages from the vendee upon the The judgment should direct payment several lots conve3'od, and by agree- to the plaintiff of tlie amount due ; and nicnt is not to foreclose until the prior 254 THE LAW OP MORTGAGES. [CH. XXXIII. § 30. A. sale is void, unless the purchaser complies with the terms.^ ]5ut a purchaser's title cannot be impeached collat- erally for irregularity .2 § 31. Where a sale is set aside on account of the construc- tive fraud of the purchaser, both lie and the mortgagor are entitled to be put in the same situation they were in before the purchase.^ § 31 a. Equity is ready to receive the excuses of the mort- gagor, not only to allow him time to procure the money before foreclosure, but also to open the foreclosure where there was any good reason why it was not resisted.^ A sale may he set aside, or tlie biddings opened, more especially before confir- mation of the sale, for fraud, unfairness, or irregularity ; allowing costs and reasonable expenses to the purchaser.^ But not for mere inadequacy of price,^ unless there be a sacrifice;' 1 "Washburn v. Green, 13 La. An. 6 American, &c. v. Oakley, 9 Paige, 332. 259 ; Henderson v. Lovvry, 5 Yerg. 240 ; 2 Nagle V. Macy, 9 Cal. 426. West v. Davis, 4 McL. 241 ; Strong v. 3 Trotter v. White, 26 Miss. 88. Cotton, 1 Wis. 471. See Hill v. Hoover, 4 Golden v. Fowler, 26 Geo. 4-51. 5 Wis. 354. 5 Forman v. Hunt, 3 Dana, 114. 'J Garrett v. Moss, 20 111. 549. incumbrances are cancelled, by means to be furnished by the vendee, or by the sale of such mortgages or either of them ; and where the vendor has mort- gaged or pledged a portion of the mort- gages as security for money loaned, and the pledgee forecloses, and has a sur- plus : the vendee, not having paid the moneys agreed to be paid to cancel such incumbrances or a part of them, is not entitled to such surplus. John- son V. Blydenburgh, 31 N. Y. 427. Upon a foreclosure sale, the proceeds remaining after payment of the mort- gage may be applied for the benefit of a subsequent incumbrancer who is not a party to the suit ; but he must either file a cross-bill, or establish his claim by proof at the trial or before a Master. Ellis V. Southwell, 29 111. 549. He is held to have no claim to the surplus under a statute foreclosure, if his lien is not thereby affected by rea- son of want of notice. Winslow v. McCall, 32 Barb. 241. In Louisiana, a mortgage creditor, next in rank to one who has been paid from the proceeds of a sale under ex- ecutory process, is entitled to a judg- ment against the purchaser as a third possessor of the property, to be paid out of the surplus remaining after dis- charge of the first mortgage. And such surplus should be retained by the pur- chaser for that purpose, the sheriff hav- ing no authority to receive it. Quertier V. Succession, 18 La. An. 65. In Minnesota, a mortgagor cannot recover against a mortgagee a surplus of the proceeds of the mortgage, after payment of such surplus by the mort- gagee to the sheriff. Bailey v. Merritt, 7 Min. 159. CH. XXXIII.] FORECLOSURE SALE. 255 nor where tlic party objecting has been fuund guilty of negli- gence.^ § 32. Property worth 8'")000 was offered for sale l)y a blaster, and two bids, of $2000 and ii^l800, were made, whereupon the sale was adjourned. Before the time to which it was adjourned, the larger bid was withdrawn, and the property put up again, and bid off for $5G0, leaving a judgment unpaid, the creditor being ignorant of the sale. Upon his application, the Court set aside the sale, and ordered a new one.- § 33. The owner of mortgaged premises being a non-resi- dent of the State, and ignorant of the commencement of a foreclosure suit till after a sale, and his agent, who had charge of the property, having been incapacitated for business by loss of reason, through the visitation of God, and the sale having been consequently made at a great sacrifice ; held, it should be set aside, and a resale ordered.^ So, where a mere nominal defendant induced the plaintiff to withdraw his consent to a postponement, knowing that the mortgagor was sick, and then himself purchased at an inadequate price.^ So, where the sale required immediate full payment in cash.^ § 34. A mortgagee attended at the day and place of sale advertised, and adjourned the sale ; but notice of the adjourn- ment was published by mistake for a different and more dis- tant day than the one appointed, and the sale was made on the day appointed. Held, irregular and void.^ § 34 a. The notice of sale must state the time, which must be in business hours, and fix a convenient or public place, which is easily accessible.'' § 34 b. After the lapse of ten years, a sale was held valid, notwithstanding an irregularity in the advertisement.^ § 34 c. A second confession of a decree of foreclosure may 1 Francis v. Church, 1 Clark, 475. ^ Thompson r. Mount, 1 Barb. Ch. See M'CoUer v. Jay, 30 N. Y. 80; G07. Warren v. Foreman, 10 Wis. 35. * Billiiigton v. Forbes, 10 Paige, 487. 2 May V. May, 11 Paige, 201. See 5 GoUlsinitli ;•. Osborne, 1 Kdw. Ch. Collier v. Whipple, 13 Wend. 224 ; For- 5G0. man v. Hunt, 3 Dana, 014; Van Ilorne ^ Miller !. Hull, 4 Dcnio, 104. V. Everson, 13 Barb. 526. ^ Trustees, &c. v. Sneil, 19 III. 136. 8 Garrett v. Moss, 20 111. 540. 256 THE LAW OF MORTGAGES. [CH. XXXUI. be made under a power of attorney, where the first one made under it has been reversed. ^ § 34 d. Where a mortgagee untruly said that the sale was postponed, but with no intent to mislead, and consequently the money necessary to pay the debt was not furnished, and the property was sacrificed ; upon indemnity to the purchaser, the sale was set aside.^ § 34 e. Property was sold under a judgment of foreclosure. Held, the title of the purchaser could not be disputed, upon the ground that the instrument foreclosed was not an ordi- nary mortgage, and that the judgment was erroneous.^ § oo. In Kentucky, the practice is, to sell only enough land to pay the debt ; but a sale of more is not absolutely void, and cannot be set aside by a subsequent mortgagee, after the time within which he might have brought a writ of error to reverse the decree.'' § 36. Where a mortgage is assigned as security for a debt, much less than the value of the property and the mortgage debt ; a decree for a sale of the whole, in a suit for foreclo- sure, is erroneous, the land being susceptible of division into lots. Enough only should be sold to pay debt, interest, and costs.^ § 37. After a judgment, execution, and sale, under a mort- gage bond, the Court will not open the account on the mort- gage, thougli there is some irregularity in the accounts, if they appear to be fairly closed.^ § 38. In Alabama, where the mortgagee becomes the pur- chaser, the biddings will be opened, and a resale ordered, be- fore confirmation of the sale, if an advance of not less than ten per cent on the former sale is offered, and the money depos- ited in court ; but a resale will not be ordered where the de- posit is less than two hundred dollars." § 39. But where a stranger becomes the purchaser, a release will not be ordered for mere inadequacy of price, however 1 Iluner v. Doolittle, 3 Iowa, 76. 5 Delabigarre v. Bush, 2 John. 2 Strong y. Catton, 1 Wis. 471. 489. ^ Miles V. Davis, 19 Mis. 408. « Bioodgood v. Zeily, 2 Caines, Cas. 4 Sliiveley v. Jones, 6 B. Mon. 274. in Er. 124. See Ticknor v. Leavens, 2 Ala. 149. "^ Little v. Zuntz, 2 Ala. 256. CH. XXXIII.] FORECLOSURE SALE. 257 gross, unless there be some unfair practice at the sale, or sur- prise without fault on the part of those interested, and in no case after conrirnuition, except for fraud of llie j)urchas(U" which was not known at the time of the confirinaticju.' § 40. In case of a resale, the purchaser cannot be charged with rent of the premises, unless he has actually received it, and will be entitled to a return of the purchase-money, with interest, all sums laid out in improvements, his costs and ex- penses, and a liberal allowance for his trouble.^ (a) § 41. A mortgagee, who purchases at a fraudulent sale, made without a decree of foreclosure, cannot claim for im- provements.'^ » Littell v. Zuntz, 2 Ala. 256. - Ibid. 3 Gunn v. Brantley, 21 Ala. 033. (a) A decree of foreclosure and sale was set aside on appeal, with directions that the defendants be restored to pos- session, and that the court below should proceed to dispose of the case in jjur- suance of the principles of the opinion. Held, the court below might properly order, on filing of the remittitur, an ac- count of the rents and profits ; that the defendants had an equal right to such rents and profits, as to the property, without a separate suit to recover them ; and that the mortgage, and the relations of mortgagor and mortgagee, were not destroyed by the judgment. Raun V. Reynolds, 15 Cal. 459. A purchaser at a foreclosure sale is not entitled to the rents which accrue between the sale and delivery of the deed, where he does not complete his purchase at the time agreed. Mitchell V. Bartlett, 52 Barb. 319. One who, pending a foreclosure suit, comes into possession under a defend- ant, is responsible as "tenant in posses- sion," imder the (Cal.) statute, for tlie rents and profits accruing after the day of sale, and before delivery to the pur- chasers. But the agent of such tenant, empowered to manage the prd^erty and receive and pay over the rents and profits, is not liable over to the pur- chaser. Shores i*. Scott, &c., Co., 21 Cal. 135. The mortgagor cannot maintain re- plevin for crops sowed, without the con- sent of the purchaser, after the sale and before the confirmation, and which could not be harvested until after the confirmation. Parker v. Storts, 15 Ohio St. .351. The owner of a mortgage, who has obtained a judgment of foreclosure and sale, may maintain an action for an in- jury committed upon the premises be- fore the sale, impairing the security and preventing the full amount of the debt from being realized, where the act was committed by the mortgagor, being at the time insolvent, or by others .icting by his direction and knowing his insolvency and the exist- ence of the securit}', wrongfully and fraudulently, with intent to injure the holder of the mortgage. So, where the injury was conunitted by a mere tres- passer, against whom the mortgagor also has a right of action. In case of an assignment of the mortgage, the as- signee cannot sue, if the injury wa» prior to the assignment ; but, if it was subsequent, he is the proper plaintiff". Jones V. Costigan, 12 Wis. 677. 17 258 THE LAW OF MORTGAGES. [CH. XXXIII. § 42. "Where the complainant and his solicitor led the de- fendant in a foreclosure suit, who was liable for the deficiency, if any, to believe that they would not allow the premises to be sold under the decree for less than the debt and costs ; and the defendant meant to attend, to bid for his own protection, but unexpectedly and accidentally was prevented, and had used reasonable diligence by writing a letter, which miscarried, and the property sold for one-third its value : the Court ordered a resale.^ (a) § 43. A sale and conveyance by a sheriff, purporting to carry the fee, under an order of a law court, void for want of jurisdic- tion, for foreclosure of a mortgage, will carry all the interest of the mortgagee, though less than a fee ; and the sheriff will for this purpose be deemed his agent.^ 1 Iloppock V. Conklin, 4 Scandf. Ch. 582. See Campbell v. Gardner, 3 Stockt. 423. ••! Stoney v. Shultz, 1 Hill, Cli. 465. (a) A mortgagor cannot have a re- sale, on the ground that, not having had sufficient notice, he was unable to be present at the sale, and that the prem- ises were sold for less tlian the amount of the execution, and less than the al- leged value ; unless he guarantees to bid the amount due on the execution at the resale. Hazard v. Hodges, 2 Green (N. J.), 123. Where a mistake is made in giving notice of the date of the sale to an in- terested party, the sale cannot be set aside, if he was informed of the correct date in time to be present. Ibid. A decree of foreclosure was ob- tained against a non-resident prior mortgagee, who had no notice, and upon whom no service was made. The plaintiff, or his attorneys, by fraudu- lent representations procured an an- swer to be filed by an unauthorized attorney, and a sale was made. In a suit to set aside the decree, and to fore- close the prior mortgage, no rights of third persons having attached after the defendant had knowledge of the decree, and prior to the commencement of this suit ; held, the decree was a nuhity, and the sale invalid as to the defendant, although there was no statement in the petition that the plaintiff in the first suit or the attorney was insolvent, or unable to respond in damages. Har- shey V. Blackmarr, 20 Iowa, 161. A motion for a' resale for matters ex- trinsic to the record is properly heard and detei'mined on affidavit. Savery V. Sypher, 6 Wall. 157. On a bill to redeem by a junior mortgagee, after sale on a prior mort- gage, a decree, that, if the amount ne- cessary to redeem is not paid within the time limited, the premises shall again be sold, and the mortgagors paid in order of priority, is erroneous. Proc- tor V. Baker, 15 Ind. 178. A bid made at a mortgage sale was accepted by the Master, but not re- ported to or approved by the Court. Subsequently the Master on his own responsibility resold, and such sale was approved. Held, the first bidder's lia- bility was thereby terminated. Dills V. Jasper, 33 111. 262. CII. XXXIII.] FORECLOSURE SALE. 259 § 44. A mortgagee obtained by fraud a decree for a larger sum than was due, and the mortgage was foreclosed, and tlio mortgagor instituted proceedings to set the dccreo aside. Held, that a previous tender was not necessary.^ § 45. Where a mortgagor had been defaulted in a foreclosure suit, though there was a large deficiency after the sale of tho mortgaged property, he was not admitted to defend after a decree and enrolment, on the mere allegation that lie did not remember that he had been served with a subpoena.^ § 46. A default will not be opened in equity lor the purpose of letting in an unconscionable or dishonest defence.'^ § 47. So, in a bill to foreclose mortgages given by a cor]»ora- tion to secure their bonds, after the corporation have suffered a default, it will not be set aside to enable the defendants to show that they had no power to execute the bonds.* § 48. After a decree of foreclosure and sale, on a bill taken pro coiifcsso, the sale was opened, upon an offer by the defend- ant to pay fifty per cent advance upon the sale, the sale not having been confirmed, nor a deed executed, and tho plaintiff being himself the purchaser.^ § 48 a. A., the purchaser of mortgaged premises at a sale under a decretal order, having failed to complete his purchase, a resale was ordered, the difference in the proceeds of sale, if any, to be paid to A., in case of a surplus, and by him in case of a deficit. There was a deficit, and an action therefor was brought against B., on the ground that he was, in fact, the real pur- chaser, and A. only his agent. Held, that the action could not be maintained, the order in the foreclosure suit, which re- quired the deficit to be paid by A., being conclusive u])on tho plaintiff'^ § 40. If an action of ejectment be commenced by a mort- gagee, who afterwards files a bill and obtains a decree for fore- closure, the subsequent prosecution of the action and recovery of judgment by tlie mortgagee Avill not open the decree, if no 1 LockwooiU'.Mitdioll, rj()liio,448. * Iliid. 2 Yates V. Woodruir, 4 Edw. Cli. ^ Lansing v. M'Plicrson, 3 John. 700. Cli. 4'J4. ' King V. Merchants' Exchange Co., "^ I'aine v. Smitii, 2 Ducr, 298. 2 Sandf. G93. 260 THE LAW OP MORTGAGES. [CH. XXXIII. execution be collected on such judgment until after tlic expira- tion of the decree.^ § 50. Equity will open a decree of foreclosure, when tlie failure of the mortgagor to pay according to the decree was not through his negligence or default, but in consequ-ence of propositions for settlement and payment made by the mort- gagee, which were to be carried into effect after the time of payment had expired, and the failure to perform was on the part of the mortgagee.^ § 51. A misapprehension of the terms of a sale of mort- gaged premises, under a decree through which one party is injured, and another who purchases is benefited, may be ground for setting aside the sale.^ .§ 52. A sale of the mortgaged premises, on execution issued in proceedings to foreclose the mortgage, was set aside, because a subsequent incumbrancer was prevented by accident from being present at the sale, and tlie premises sold were for an inadequate price.* § 53. An original bill in chancery cannot be sustained by a party to a foreclosure suit, to set aside the proceedings upon a Master's sale under the decree, where there was nothing to prevent an application to the Court in that suit for a resale.^ § 54. Upon the foreclosure of a mortgage, the mortgagee, who was also a judgment creditor of the mortgagor to a large amount, purchased the premises for the amount due on his mortgage. A subsequent mortgagee afterwards applied for a resale of the premises, offering a large advance upon the price paid by the prior mortgagee, and alleging his ignorance of a recent rule, under which the premises were sold, as the cause of his absence from the sale. Held, the sale being fair, and the property of the mortgagor being so situated that the satis- faction of the purchaser's judgment would be difficult, except from the mortgaged premises, that a resale would not be per- mitted.*^ § 55. A mortgagee sold a decree of foreclosure, obtained 1 Tliomas v. Warner, 15 Verm. 110. * Howell v. Hester, 3 Green, Ch. 266. 2 Smalley v. Ilickock, 12 Verm. 153. ^ Brown v. Frost, 10 Paige, 243. 3 Hay V. Schooley, 7 Harr. (2d Part) *> Gardiner v. Schermerhorn, 1 Clark, 148. 101. CH. XXXIII.] FORECLOSURE SALE. 261 upon the mortgage, to a subsequent incumbrancer, and, npon a sale of the premises, they were jnirchased by a trustee for the mortgagor, at a price far below their value ; but the full, or nearly the full, value of the premises was aj)plied to the i)ay- ment of the debt due the purchaser of the decree. Held, that a resale of the ))remiscs could not be decreed for the benefit of the mortgagee, who had not been defrauded, misled, or sur- prised, by any act of the parties interested.^ § 50. It has been held, that a mortgagor must bring a bill to redeem, in order to avoid a foreclosure. Uo cannot have the sale set aside, though the mortgagee has abused the power to sell, and himself become the purchaser.^ § 57. It is said : " No general rule can, however, be laid down for the opening of a foreclosure ; each individual case must rest on its own merits." ^ § 58. The account may always be opened for fraud, or tl\e party will be allowed, upon allegation and proof of specific error, to surcharge and falsify. He cannot, however, in the latter case, go into the general account, though fraud will be a sufficient ground to open the whole account ; but, if he be at liberty to surcharge and falsify, he is not confined to errors in fact, but may, it is said, take advantage of errors in law.* § 59. Altiiough a settled account shall not be opened, unless particular errors are pointed out, yet, on a bill filed by a client against his attorney, alleging error generally in a settled ac- count, if the defendant admit the fact, the account will be opened.^ § ()0. If a solicitor, holding a mortgage, charges poundage, in his account, on the amount of rents received, without in- forming his client that he has no right to do so, the latter may surcharge and falsify.^ § 61. But, if the client has paid his solicitor's Itill of costs without pressure or undue influence, in order to have it taxed, he must allege and prove that the charges are so grossly im- proper as to furnish evidence of fraud.' I Fiirnliam r. Colton, 1 Clark, 35. « LanfrstafTo v. Fonwick, 10 Vcs. '■2 Scliwart V. Sears, Walk. Ch. 170. 405. See Boudurant i'. Taylor, 3 Sec Bissell r. Bozman, 2 Dev. Ch. 160. Iowa, 661. » Coote, 571. * Ibid. 609. ^ Horlock v. Smith, 2 My. & Cr. 5 Matthews v. Wallwyn, 4 Ves. 118. 495. 262 THE LAW OF MORTGAGES. [CH. XXXIII. § 61 a. Ill a proceeding to foreclose a mortgage, a rule abso- lute was entered before the expiration of twelve months from the entry of the rule nisi : and the proceeding was instituted against the legal representatives of tiie mortgagor, and before administration had been granted on his estate. Held, that these irregularities were not sufficient to impeach the title of a lond fide purchaser under the judgment of foreclosure.^ ■ § 62. Where, on a sale of mortgaged premises under a de- cree, the bond is fully paid, the obligor is entitled to have the bond and mortgage delivered up to him to be cancelled. The obligee or purchaser is not entitled to retain them for greater security of his title under the decree, without the obligor's consent. But a third person, who pays off mortgage debts for his own security, may be substituted in place of the obligor, and retain the bond and mortgage.- (a) 1 De Lorme v. Pease, 19 Geo. 220. (a) Neither the plaintiff nor the com- missioner is liable for a legal sale of land under a foreclosure, though after rendition of the judgment a petition for a new trial has been filed, if no injunction issued. The defendant's only remedy is by proceedings to vacate the judgment and sale. Bi'own V. Hudson, 3 Bush, 60. Where a sale was fairly made at a price wliich was agreed upon with the mortgagor, and was confirmed, a fur- ther order, that the sale should be set aside, and a resale ordered upon the filing of an agreement with security for a bid for a larger sum, was held erroneous. Kneeland v. Smith, 13 Wis. 591. Where, in foreclosure of a mortgage, a purchaser from the mortgagor has through mistake not been made a party, the mortgagee, who has pur- chased at a sale under the decree, for the whole amount of the debt and costs, may maintain a second action, to foreclose the equity of such owner, and for a new sale to make the prin- cipal and interest due on the mortgage, 2 Coster, 2 John. Ch. 503. ' but not for costs of the former suit. State Bank v. Abbott, 20 Wis. 570. An appeal from an order vacating a judgment of foreclosure, suspends the order, and leaves the judgment in full force ; and a sale made under it, pending the appeal, will not be set aside for that reason, if the order is afterwards reversed. If the premises sold for less than their real value, and there was no competition, the Court would affirm an order vacating the sale ; but, there being a year's redemp- tion, such an order was reversed. TEtna V. McCormick, 20 Wis. 265. A purchase of land, at a sale on foreclosure of a prior mortgage, for the benefit of a party who has assumed both mortgages, does not cut off the lien of the second mortgage. Tomp- kins I'. Halstead, 21 Wis. 118. The purchaser at a foreclosure sale under a first mortgage, made pending a suit on a second mortgage to which neither he nor the party whose right he purchases is a party, is not bound thereby ; he does not claim under but adversely and paramountly to the CH. XXXIIl.] FORECLOSURE SALE. 2G3 § Go. A decree of foreclosure extinguishes the mortgage lien, though merely enrolled and not docketed ; and, after second mortLTaf^cc, and the doctrine of purchases pendnite lite does not ai)ply. Murpliy V. Farwell, 'J Wis. 102. The purchaser at a sale on fore- closure acquires no title, as ajjainst a grantee of the niortgai^or, who claims under a deed executed before the suit was commenced, and recorded before the sale, unless such grantee was made party to the suit. Carpentier v. Wil- liamson, 25 Cal. 154. Two mortgages were given by a railroad compau)', one on the western section of its road, and afterwards one on its eastern section ; both covering the rolling stock. Both were foreclosed, and the purchasers under each formed a new company. Held, the rolling stock Ijolonged to the company which liad purchased under the senior mort- gage. Minnesota v. St. Paul, Wall. 742. In an action to recover real estate as a homestead, the complaint alleged that the husband alone executed his note and a mortgage on the premises. A foreclosure suit was brought, making the husband and wife, and several sub- sequent mortgagees, jjarties. The hus- band and wife were defaulted, but the other defendants answered, asking for a sale of the property. Held, the plain- tiffs could not recover, without showing that tlie subsequent mortgages were insufficient to pass the title, as under the pleadings it appeared that the sale was made under them, as well as under the mortgage by the husband. Klink V. Cohen, 15 Cal. 200. Under section 3318 of the (Iowa) Revision of 18tj0, if the defendant, in a special execution, issued on a mortgage foreclosure, who is in actual occupation and possession of any part of the land levied on under such execution, does not receive a written notice of levy and sale, he is entitled to have the sale set aside. Jensen v. Woodbury, 10 Iowa, 515. A special execution for the sale of land, on foreclosure, which fully and accurately descrilics the decree on which it is issued, the time at which, and the court by which, it was rendered, the names of the parties, and the land to be sold, and states the amount of the decree, and the amount still due thereon, twice, is valid, altliough the amount which is commanded to be collected is left blank. Coolcy v. Bray- ton, 1(3 Iowa, 10. The sale in foreclosure was properly made by the sheriff, to whom the decre- tal order was originally delivered, al- though his term of office expired before the sale. (Wis. Rev. Sts. cli. 13, § 100.) Cord V. Hirsch, 17 Wis. 403. The omission of the sheriff, in sign- ing a notice of postponement of sale, to append his official title, was properly disregarded by the Court, on a motion to confirm the sale, it being a mere clerical error, and affecting no substan- tial right. Ibid. After a judgment, setting aside pro- ceedings to foreclose, and a sale there- under, on the ground of irregularities and fraud, tiie mortgage remains un- satisfied. Stackpole v. Robbins, 47 Barb. 212. A petition for foreclosure of a mort- gage, which recited that it was subject to a trust deed, made the cestui que trust a party, though expressly waiving any personal claim against him. The prayer was to bar the equity of redemption, and for general relief The decree of foreclosure was taken pro coiifesso, and declared any claim of the defendant's barred from time of sale. Held, a pur- chaser acquired no rights against a purchaser at a prior sale, proi>orly made under the trust deed. Staiulish V. Dow, 21 Iowa, 303. A defendant, in failing to have a decreed sale set aside until the redcnii)- 264 THE LAW OF MORTGAGES. [CH. XXXIII. satisfaction of the mortgage by a sale of the land, the decree ceases to be a lieu thereon.^ 1 People v. Beebe, 1 Barb. 379. tion expires and a deed is made, waives all technical objections, and can only resist the sale, by showing manifest injury by the manner in wliich it was made. Walker v. Sebum, 42 111. 462. Under a decree to sell the mort- gagor's "right, title, and interest," the Master undertook to sell the land itself. Held, the mortgagor had no right to object to it. Ibid. Averments, that a party to a fore- closure suit was too blind to read the newspapers, and therefore did not see the advertisement, and had no notice of the sale, and that, therefore, there was no bidder present, and the property was sold for much less than its real value, are not sufficient grounds for ordering a resale. Parkhurst v. Cory, 3 Stockt. 233. The Court will not interfere on the ground of surprise, when this might have been avoided by ordinary pru- dence. Ibid. Where a trustee, imder a decree for foreclosure, inadvertently described one of the lots advertised to be sold as sub- ject to a ground-rent of $6-5, instead of $65.50, the true amount ; held, no ground for interfering with the sale. Brooks V. Hayes, 24 Md. 507. A railroad was sold for less than its value, in pursuance of an arrangement, to the prejudice of the company's cred- itors, between the purchasers and the directors, for their private advantage. Held, the purchasers were liable as trustees to the full value of the road, after deducting what was due them from the company, and must be charged with interest on the balance found due the complaining creditors, from the day of sale to the daj' of the final decree in tJie suit to set aside the sale. Drury i-. Cross, 7 Wall. 299. The Court of Cliancery has, in its discretion, power to set aside a sale, for gross inadequacy of price, even where tliere is no fraud. Jackson v. Warren, 32 111. 331. Mortgaged premises sold under a decree of foreclosure brought $350, though appearing to be worth $400 in cash, and $700 on long time. Held, not to be an inadequacy in price suffi- cient to warrant a setting aside of the sale. BuUard v. Green, 10 'Mich. 268. A mortgagor, after !iis equity of re- demption is barred, should not be heard to impeach the foreclosure sale, except by showing fraud or oppression, and substantial injury, nor even then, per- haps, after long delay. Fergus v. Wood- worth, 44 111. 374. If, however, the sale of property in gross produces such inadequacy in the price as to amount to great wrong and oppression, equity might aflT^rd relief, even two or three years after the sale, against the purchaser, if he had not parted with the title, upon a reasonable excuse for the delay. Ibid. When a decree of sale is reversed, a bona fide purchaser, not a party to the record, will not be disturbed. Ibid. A railroad company had issued bonds to the amount of .§2,000,000, secured by a mortgage; and less than $200,000 of the bonds were in tlie hands of bond fide holders, the rest being in the hands or under the control of the directors of a new company, that had foreclosed the mortgage for non-payment of the first six months' interest, they having bought them, through certain arrange- ments, at nominal prices. Held, the whole transaction was evidently a fraud on the mortgagor company and its other creditors ; the foreclosure and sale were therefore set aside ; the CH. XXXIII.j FORECLOSUltE SALE. 265 § G4. Where the mortgagor is left in possession under an agreement with the purchaser to redeem, he holds under this contract, not as mortgagor.^ 1 Toll V. Illller, 11 Taige, 228. mortgage to stand as security for the bonds in tlie liands of lioiiu Jide holders for value ; the conii)lainants, who were judgment creditors, being allowed to enforce their judgments, subject to prior liens. Held, also, that the notice of sale, setting forth tliat the mortgage debt was two millions of dollars, and that seventy thousand dollars of interest was due, was calculated to exclude all bidders but those engaged in tlie jier- petration of the fraud. James v. Kail- road Co., G Wall. 752. The plaintiff, assignee of a mortgage made by P., employed S., an attorney, to foreclose by advertisement, and the attorney caused a notice of the sale to be published, announcing Sept. 8, 18GG, as the day of sale. The defend- ant desired to bid, but, having doubts as to the legality of the proceedings, requested S. to adjourn the sale for one week. S. consented, provided defendant would give him $100 for a claim he had against the mortgagor's wife. Defendant assented, and the sale was postponed. S., becoming satisfied his proceedings were illegal, commenced new proceedings, and ap- pointed Dec. 10, 18G0, as the day of sale. On that day, the plaintiff direct- ed S. to adjourn tlie sale two weeks, and countermanded instructions previ- ously given to a third person to attend the sale and bid off the premises. S., disregarding the direction, sold, on the day appointed, to the defendant, ho being the highest bidder, for §2100, subject to a prior incumbrance of $57 1. The property was worth §1000. De- fendant had no knowledge at the time of the sale of any instructions to S. to adjourn it. Xo agreement existed be- tween S. and the defendant to share any profits arising from a resale, and the §100 had never been ])aid. S. was irresponsible. Held, if there was any fraud for which the defendant was liable, it was in procuring S. not to sell on the day originally appointed ; and that the agreement for the pay- ment of the §100, and the neglect to sell then, had no connection with or relation to the sale. Lcet v. McMaster, 51 Barb. 23G. Held, further, that even were the case not without fraud on the part of defendant, he having paid for the prop- erty more than two-thirds value, and nearly full value as estimated by some of the witnesses, the hardship was not so severe on the plaintiff, tiiat the Court would grant relief, allowing the sale to stand as security for the money paid by the defendant. Ibid. Held, also, tliat the defendant's rights were not affected by the fact, that S. made the sale contrary to and in dis- regard of the instructions of his prin- cipal. Ibid. Want of knowledge of the time and place of sale, on the part of one who was a party to the suit, is not a suffi- cient reason for opening the foreclosure. McCotter v. Jay, 30 N. Y. 80. Where a party acquires by a pur- chase at a mortgage sale the legal title to property devised to which he erro- neously supposed he had acquired the title before the testator's death, equity will not set aside the foreclosure decree and deed, if he elects, with consent of fehe devisees, to hold the pro])erty in trust for them. Morrison i;. Bowman, .29 Cal. 337. A foreclosure sale is not valid, when made under a wrong interpretation of an order, even where the Court con- 206 THE LAW OP MORTGAGES. [CII. XXXIII. § 05. After foreclosure, the mortgagor is entitled to the rents and profits, until the purchaser becomes entitled to pos- session.^ , § 00. A purchaser at a mortgage sale of land, previously- sold on execution against the mortgagor, and of wliich posses- sion has been delivered by the sheriff, cannot transfer his title so as to authorize his alienee to sue in his own name." § 07. If tiio plaintiff does not proceed to a sale with due diligence after the decree, another party to the suit may apply for the management of it. And, if a sale has been ordered, the Court, on application of such party, may order an imme- diate sale, though the plaintiff has given directions.^ (a) § 08. The purcliasor may be put in possession by a ivrit of asiiistance, after the defendant has been shown the Master's deed, and a certified copy of the order confirming the sale.* But notice of the motion, with the affidavit on which it rests, must first be served upon one who has come into possession since the commencement of suit, not being a party .^ § 09. A vendee of the purchaser will not be aided by the Court in obtaining possession, if injustice is likely to be there- by effected.*^ § 70. A decree of sale, in a suit to foreclose a mortgage, does not vest the title in the mortgagee so as to make tlie mortgagor a stranger to the land ; and the representatives of the mortgagee may file a bill against the other parties to the 1 Astor V. Turner, 11 Paige, 436. 5 Berhard v. Darrow, Walk. Ch. 2 Pryor v. Butler, 9 Ala. 418. 519. 3 Kelly V. Israel, 11 Paige, 147. ^ Van Hook v. Throckmorton, 8 * Hart V. Lindsilay, Walk. Ch. 144 ; Paige, 33. See Schenck v. Conover, 2 Beasl. 31 ; Fackler v. Worth, 2 Beasl. 395. firmed the record of the sale, the the mortgage debt was nearly paid, and attention of the Court not being called the mortgagee, by concealment and to the mistake, nor any issue raised as falsehood as to the account, committed to the meaning of the order. Minne- a fraud upon her, and was the real sota V. St. Paul, 2 Wall. 609. purchaser. Cain v. Gimon, 36 Ala. 168. A wife, who claims an interest in . (a) For the practice in a sale as to premises mortgaged by her husband, costs, see Kellj' v. Israel, 11 Paige, 147. under a conveyance from him subso- Also, as to the Master's duty. Ibid. See, quent to the mortgage, may have a further, Wetmore v. Winans, 8 Paige, sale by the mortgagee set aside, wlien 370. CH. XXXIII.] FORECLOSURE SALE. 267 decree, or their representatives or privies, to carry the decree into effect.^ § 71. A person, who purchased after the commencement of a suit to forech)se, at a sale under a judgment against the mortgagor, recovered before that time, is not considered as entering under the mortgagor, j)ending the suit, within the intent of that part of the decree, which directs those who iuive entered under a party pending the suit to deliver possession.- But such i)uVchaser, having filed a hill to redeem, was ordered to give up the possession, or give security for the costs, dam- ages, and mesne profits of the suit by him to redeem.-'^ § 72. The purchaser of land, under a decree of foreclosure, is entitled to the assistance of the Court, and to a writ of assistance in obtaining possession, as against parties to the suit for foreclosure, or persons who have come into possession under them subsequently to the filing of notice of the com- mencement of the suit.* («) 1 CniRer i-. Daniel, Riley, Ch. 102. 2 Frelingliuysen v. Golden, 4 Paige, 204. (a) Under Circuit Court rules of 1857, r. 31, tlie purclmserat aforeclosure sale, under a judgment so directing, is entitled to be let into possession, and, if need be, to a writ of assistance, be- fore confirmation of the sale. Looniis V. Wlieeler, 18 Wis. 524. Where a decree directed the sale of all the i)remises, foreclosed and barred the equity of redemption of the de- fendants, and ordered that the pur- chaser should be let into possession ; lield, that the person who received the sheriflf's deed was entitled to a writ of assistance as against all the defendants who were served with process or ap- peared, though not named in the de- cree or not named in the deed. Frisbie V. Fogarty, 34 Cal. 11. But a purchaser is not entitled to be. put in possession before a deed has been executed to him. Bennetts. Mat- son, 41 111. 332. Such a purchaser submits himself to 3 Ibid. 4 Ibid. ; Skinner ?'. Beatty, IG Cal. 156. See Maynes v. JNIoore, 1(3 Ind. IIG. the jurisdiction of the court, and may be compelled to comply with the con- ditions of the sale. Lapse of time does not affect this liability, wlien he re- mains in possession, retaining the ben- efit of the title acquired through tlie judgment. Where a motion is made that the purchase-money be paid into court, it is no valid objection, that the representatives of a deceased party to the action have not been brought in, as their rights are not aflTeeted by the order. Cazet v. Ilubbell, 36 N. Y. 677. A purchaser, in order to recover possession, must show, otlierwise than by recitals in the deed, tliat an order of sale, or in some cases a certifieil copy of the decree, was issued to the sheriff. Hcyman r. Babcock, 30 Cal. 367. An agreement between A., a mort- gagor, and B., a i)urchaser, that B. will buy for the benefit of A., and allow him to buy back within a given 268 THE LAW OF MORTGAGES. [CH. XXXIII. § 7o. Ill case of a decree for the sale of mortgaged prem- ises on a bill by the mortgagee, if the trustee appointed has died after making the sale, and his bond is lost, creditors enti- tled to the surplus proceeds cannot sustain a petition against the sureties of the trustee, to have those proceeds paid into court, on the ground of the loss of the bond. Under such cir- cumstances, the sureties and the petitioners are alike strangers to the cause.^ § 74. Where a purchaser, at the time of the purchase, had notice of a prior incumbrance, the Court, under the circum- stances, allowed him to redeem from the prior incumbrancer, and refused to limit him to the surplus proceeds of the sale, on a bill to foreclose the prior mortgage.^ § 75. A mortgagor and those claiming in his right may have relief, by the exercise of the summary and inherent powers of a court of equity, or by attachment, against a trustee of that court for the sale of mortgaged premises, to pay the mortgage debt, who retains in his hands surplus funds arising from the sale to which they are entitled ; but not against the sureties of such trustee, without positive enactment ; and the Maryland Act of 1785, ch. 72, authorizes no such mode of procedure.'^ § 76. Under the Act of 1838, a judgment creditor, whose judgment is a lien upon part of a lot of land subject to a 1 Boteler v. Brookes, 7 Gill & J. 143. ^ Boteler v. Brookes, 7 Gill & J. 2 Cook V. Maneius, 5 John. Ch. 89. 143. time, is not a mortgage ; and A., purchased the land, executed the con- after the time mentioneil, is not entitled tract, and received from A. a release to relief in equity. Merritt v. Brown, of the surplus purchase-money ; but 4 Gi'een (N. J.), 286. subsequently ousted A. by an eject- A., the owner of mortgaged land, ment suit. Held, the purchase by B. pending a process of foreclosure, agreed was in effect a loan to A., to secure with B., that B. should bid off the land which, title was taken by him to the at the sale, take the title, pay the land; and that A. was entitled to re- amount of the mortgage and costs, and deem, upon payment of the agreed execute to A. an agreement to convey sums, with interest, the costs of the to him, upon payment of the sum paid ejectment, and the value of improve- by B., a small debt due from A. to B., mcnts made by B. ; B. being charged and §100 ; and, in case B. was obliged with profits from the sale of parcels of to pay more for the land tlian the the land, and of timber, and with the amount due on the mortgage, that A. net value of the use of the land. Tibbs should release such surplus to B. B. v. Morris, 44 Barb. 138. CH. XXXIir.] FORECLOSURE SALE. 269 mortgage, may redeem the premises from a sale under the mortgage.^ § 77. Upon a redemption by a mortgagee, of property sold under a prior mortgage, the aHidavit of the mortgagor, to the amount due, is sufficient under the statute.'-^ § 77 a. In case of redemption from the mortgage sale, if the sheritr demands more than is due, it should be ])aid, under protest.^ § 78. Upon a decree of sale under a mortgage, and sale to a mortgagee, the mortgagor is not barred from redcm})tion until the purchase is consummated, the deed delivered, and the report confirmed.* § 78 a. In New York, under the Act of 1838, an assignee of the equity of redemption, who redeems the premises from a purchaser under a foreclosure of the mortgage, takes the premises relieved of any right of redemption by a ])rior mort- gagee or judgment creditor.^ § 78 /). Land subject to a mortgage was mortgaged in trust, and one of the cestuis que trust, having purchased the equity of redemption, redeemed the premises from a purchaser under a foreclosure of the prior mortgage. Held, that the situation of the cestui que trust was not such as to prevent a redemption by him for his own benefit.^ § 78 c. Upon the redemption of mortgaged premises from a sale under a decree of foreclosure, the purchaser is liable to account for the rents of the premises received by him.' § 79. After foreclosure and sale, a judgment creditor of the mortgagor, whose judgment was docketed subsequently to the mortgage, can redeem only on })aymcnt of the sum due on the mortgage, without regard to tlie price for which the ])rop- erty sold.*^ § 80. Where the Court allows mortgagors to redeem, it may properly refuse to open the accounts as settled by a decree of ' Augur u. Winslow, 1 Clark, 258. ^ Kellogg r. Councr, 10 Paige, 311. 2 Il.id. 6 Ibid. 3 M'.Milbn v. Riclianls, 9 Cal. ^ Ruckman v. Astor, 3 Kdw. Cli. 865. 373. * Brown v. Frost, 1 Ilofrm. Cli. 41. 8 Benedict v. Oilman, 4 Paige, 58. 270 THE LAW OF MORTGAGES. [CH. XXXIII. foreclosiiro in the iiiferior court, and decree interest to be paid on such amount.^ § 81. After payment of the- purchase-money and delivery of a deed to a purchaser under the decree for foreclosure, the mortgagor, by a tender of the amount bid, acquires no right to redeem the premises.^ § 82. After foreclosure by advertisement and sale, but be- fore the right of redemption expires, the mortgagor dies, and his widow sells the land, and the purchaser redeems by pay- ment of the mortgage debt. In an action of ejectment by the mortgagor's heirs ; held, the purchaser had a lien for the sura paid by him, with interest, deducting tlie value of the use of the land over and above the improvements.^ § 83. In New York, 'a purchaser may refuse to complete his purchase, either because the Court had mo jurisdiction of the subject-matter, or had acquired none over all the persons in- terested in the property, or because some statutory provision has been violated or neglected, which renders the proceeding invalid.* § 84. Such purchaser cannot object that the decree was erroneous, or that the Court decided wrong upon any point affecting the merits of tlie controversy.^ § 85. Nor can he object to tlie mere form of the proceed- ings, nor to irregularities in matters of practice.^ § 86. So where a bill was filed to set aside a mortgage as invalid, the answer insisted on its validity, and prayed for a sale of the lands mortgaged to pay the amount due, and the Court, on hearing the cause on the pleadings and proofs, adjudged the mortgage to be valid, and decreed a sale of the premises and payment of the sum due ; it was held, that, whether the decree directing the sale were right or wrong, a purciiaser at the sale could not be permitted to object to it.'^ § 87. Held, further, that upon such a bill, answer, and issue, the Court had power, and it was the duty of the Court, to make such a decree.^ 1 United States Bank v. Carroll, 4 * Darvin v. Hatfield, 4 Sandf. 468. B. Mon. 40. 5 Ibid. « Ibid. ^ Ibid. 2 Brown v. Frost, 10 Paige, 243. 8 Darvin v. Hatfield, 4 Sandf. 4G8. 3 Webb V. Williams, Walk. Ch. 544. CH. XXXIII.] FORECLOSURE SALE. 271 § 88. Where, in a suit to set aside a mortgage, tlie Court, on sustaining the mortgage, decrees a sale of the premises for its satisfaction, it is no olyection to the decree, or to a title under it, that no notice of lis pendois was filed pursuant to the (N. Y.) Statute of May, 1840, it appearing that all the parties interested in the mortgaged premises were parties to the suit.^ § 80. Ti>e statute apjAics only to bills filed for the purpose of foreclosing mortgages, and is not to be extended by con- struction to cases not within its object or spirit.^ § 90. "Where a part of mortgaged premises has been aliened by the mortgagor, on a foreclosure and sale, the remainder shall be first sold, and then, if necessary, tliat which has been aliened ; and where the latter is in jjosscssion of different ven- dees, in the inverse order of alienation.'^ (See chap, lo, § 68.) § 91. But where a part is conveyed by the mortgagor, sub- ject to tlie payment of the whole mortgage, that part, as be- tween the vendor and vendee, constitutes the primary fund for its payment.* § 92. Where laud was conveyed by the complainant, subject to the payment of a mortgage on other lands, and proceedings were had to foreclose, and the decree became tlie property of one of the defendants, who also purchased the former lot ; held, such purchase operated as a satisfaction of the mortgage, to the value of the lot so purchased.^ § 93. Equity will not grant relief to a party, to remove a supposed cloud upon his title ; where the adverse claim is founded upon a deed executed by the Attorney-General, upon a sale of land under a statute foreclosure of a mortgage given to the State, which deed, by an erroneous description, included the coniplainant's land : it being a case where the Attorney- General had no right to sell the complainant's land, and the notice of sale embraced only the land which should have been sold, and where the testimony to \n'oyo the error consisted of record evidence, not lial)le to be lost. But, the grantee in such deed having refused to release, and having asserted title to the complainant's land, and executed a mortgage upon the 1 Darvin v. Hatfield, 4 Sandf. 468. ' IMnsou v. Tayne, Walk. Cli. 459. ■■i Ibid. * Ibid. 5 Ibid. 272 THE LAW OP MORTGAGES, [CH. XXXIII. same to a third person, it was licld that lie was not entitled to costs on a dismissal of the bill.^ § 94. After a statutory foreclosure, a tenant in possession cannot set up as a defence to an action by the purchaser, who bought in good faith, that the mortgagor was non compos when he executed the mortgage.^ (a) 1 Cox V. Clift, 3 Barb. 481. (n) Tlie purchaser at a foreclosure sale takes the title free from subsequent iiicunabrances. Bolles i\ Carli, 12 Min. 113. Wliere a right of way is reserved in a deed subsequent to a mortgage of the lands over which it runs, the right is subject to the mortgage, and a sale under the mortgage destroys it, to- gether with the deed. King v. Mc- Cully, 38 Penn. 76. A vendee at a foreclosure sale may have a decree against judgment cred- itors who have a lien upon tiie prem- ises, and who were not made parties, that the lien be foreclosed unless re- deemed within a specified time, or, in a proper case, that it be declared not to be a lien ; but not for an absolute foreclosure. Blanco v. Foote, 32 Barb. 535. A. mortgaged to B., then to C, then sold to D., reciting the two mortgages. Upon a foreclosm-e sale by B., D. bought, entered, and took a deed from the sheriff; then C. foreclosed and bought, and brought ejectment against D., claiming that the recital in the deed made the title in D.'s hands sub- ject to his mortgage, and consequently to a foreclosure sale thereon. Held, D. had a perfect legal title against C. Brown v. Winter, 14 Cal. 31. The duties of a sheriff in making a foreclosure sale are merely ministerial. He has no power to set aside a sale, and within a few moments offer the same premises then sold. Paquin v. Braley, 10 Min. 379. Nor can questions as to the amount '^ Ingraham v. Baldwin, 12 Barb. 9. or validity of the debt, &c., be passed upon by him, but should be taken to the court by injunction. Boyd v. Ellis, 11 Iowa, 97. Although one county is joined to another for judicial purposes, yet the sheriff of the former may, by advertise- ment, make a valid foreclosure sale of land lying in the former. Berthold v. Holman, 12 Min. 335. In Indiana, no formal levy of a cer- tified copy of a judgment of sale, in a foreclosure suit, is necessary. Ewing V. Hatfield, 17 Ind. 513. In Louisiana, where an order of seizure and sale has been obtained, and tiie mortgagor is absent from and not represented in the State, the law does not require antecedent proof or affidavit of his absence, before an at- torney can be appointed to represent him. Frost v. McLeod, 19 La. An. 80. An order of sale, which does not re- cite the decree, is irregular and void- able, but not void, and will not avoid such sale ; no motion being made to set aside the order. Sowle v. Champion, 16 Ind. 165. Where the bond required T)f mort- gagees before making sale was filed on the day of sale, the presumption will be that it was filed before the sale. Hub- bard V. Jarrell, 23 Md. 66. In Micliigan, on an application to set aside a sale, the Court cannot inquire into the regularity of the foreclosure proceedings, or the amount of the decree. Bullard v. Green, 10 Mich. 268. A judgment of foreclosure and re CH. XXXIII.] FORECLOSURE SALE. 273 port of sale are "proceedings" wliicli may be amendeJ nunc pro tunc under the (N.Y.) Code, §173. Ilogan v. Iloyt, 37 N. Y. 300. A mortgagee who has acquiesced in teclmical errors in a sale, cannot after- wards avail himself of them against a subsequent vendee, who bought in good faitli. llogan c. Iloyt, 37 N. Y. 300. The title of a purchaser is coexten- sive with the description contained in the mortgage, the bill, and the Jicri fa- cias, whether the width of the lot is stated in the decree or not. McGee v. Smith, 1 Green (N.J.), 402. 18 274 THE LAW OP MORTGAGES. [CH. XXXIV. CHAPTER XXXIV. FORECLOSURE BY ENTRY WITHOUT SUIT. 1. Open and peaceable entry. 2. Cases decided upon the mode and effect of such entry. 22. Waiver of an entry, and the rights thereby acquired. § 1. It has been already stated (^supra, ch. 27), that in some of the States the mortgagee may foreclose by aii open and peaceable entry, without legal process, and by remaining in possession for a certain period afterwards, (a) § 2. The provisions of the Revised Statutes of Massachu- setts upon this subject have also been already stated. (^Supra, ch. 27.) In construction of prior statutes upon the subject, in that State, it has been held,i that, if the mortgagee enter before, and continue in possession after, breach of condition ; the three years begin to run when he gives notice of his inten- tion to hold for the purpose of foreclosure, or does some act of notoriety, from which such intent may be inferred. A mere claim to hold the premises as his own is insufficient. If he make no such declaration, and do no such act, the mortgagor may bring a bill in equity to redeem at any time within twenty years from a tender ; more especially, where the mortgagor has died, and the heirs were minors a considerable part of the time ; though possession was continued fourteen years after condition broken. J Erskine v. Townsend, 2 Mass. 495 ; i eroy v. Winsliip, 12, 514. See Taylor v. Scott V. McFarland, 13, 309; Pom- Weld, 5, 109; Thayer y. Smith, 17,429. (a) In Tufts v. Adams, 8 Pick. 547, warranty a right of action on the cove- it was held, that an entry by the mort- nant, without waiting for a foreclosure, gagee for breach of condition was an The same doctrine was affirmed in the eviction, which gave to a purchaser with case of White v. Whitney, 3 Met. 81. 1 A case in which the general principles practice in Massachusetts upon this sub- of mortgages, and the rules of law and ject, are verj' accurately and fully stated. CH. XXXIV.] FORECLOSURE BY ENTRY WITHOUT SUIT. 275 § 3, So, in Boyd v. Sliaw,^ "Weston, C. J., says: "We arc warranted in deducing from the law of Massachusetts, as settled by judicial construction, that to effect a foreclosure by proceedings in pais, the mortgagee is to make lawful entry for condition broken, of which the parties to be effected (affected) must have actual or implied notice, and that notice is to be implied from a sul)sc(|ucnt contin\ied possession." So where, before the enactment of the Revised Statutes, a mortgagee entered under a lease from the mortgagor for one year ; it was held, that, if the mortgagee claimed to hold afterwards for the purpose of foreclosure, he must prove notice of his intention to the party entitled to redeem.^ So in New Hampshire, it is said, where a mortgagee enters upon and takes possession of land mortgaged, the entry is either for condition broken and for the purpose of foreclosure, or to receive the current rents and profits of the land, for the better security of the mortgage debt. If the entry is for the latter purpose, no foreclosure will be effected, until the mortgagee gives due notice to the mortgagor, after condition broken, that he shall hold the prem- ises for such breach. Thus a possession for fourteen years after breach of condition was held not to foreclose the mort- gage.^ In the same State, a statute provided, that no posses- sion by a mortgagee or his assigns should operate a foreclosure against any one but the mortgagor and his heirs, unless the party in possession should publish a notice in a newspaper six months before the redemption would expire. In the case of Deming v. Comings,^ it was suggested as a doubtful point, whether the act apjjlied to the case where, the mortgagee or his assignee having entered, the assignee of the mortgagor became a tenant to him ; or whether the latter, having actual notice, and himself holding the possession, under the mort- gage title, as tenant, would not be foreclosed without an adver- tisement. § 4. But, under the existing law of Massachusetts, a mort- gagee entering to foreclose need not give notice to the mortga- gor or to a subsequent mortgagee in possession for the same • 2 Sliepl. C3. '•> Hunt r. Stile?, 10 N. II. 4G8. i Ayres v. AYaite, 10 Cush. 72. Ml N. II. 484. 276 THE LAW OP MORTGAGES. [CH. XXXIV. purpose.^ And in Maine, the assignee of a mortgage, after judgment and before execution, made an entry, with the mort- gagor's consent, and after the execution issued remained in possession. Held, from the issuing of the execution he could justify his possession hy 2))-ocess of laio ; and as the mortgagor was bound to know of tlie judgment against him, and of its legal effect, of the issuing of the writ of possession, or wlien by law it miglit issue, the foreclosure may be considered as com- mencing at the time of such issue, and as perfected after three years from that date.^ § 5. In the same State, the three years of redemption run from the last publication of notice.^ And in New Hampshire, publication of notice of an entry to foreclose, in some news- paper printed in the county, according to law, is a sufficient notice to all interested that the foreclosure has been com- menced.* § 6. It has been held ,5 that the lawful entry to foreclose a mortgage, under the Massachusetts Statute of 1798, ch. 77, § 1, is not restricted to one made in presence of two witnesses, or obtained by process of law, as required by St, 1785, ch. 22, § 2 ; but applies to any actual entry, lawfully made for that purpose. The entry in this case was after condition broken. The de- fendant entered lawfully for that cause, and for the purpose of foreclosure, as appeared by the written consent of the mortga- gor, who had till then retained possession. From that time, the mortgagor considered the land as the defendant's, and his right was often recognized by a second mortgagee. The first mortgage was recorded ; the second mortgagee had notice of it ; and the mortgagor was for many years the near neighbor of the defendant. The defendant was more than three years in continued possession by his agent, or his tenant, the second mortgagee. Held, an assignee of the second mortgage could not maintain a bill in equity to redeem against tlie first mort- gagee. The Court say -.^ "It has been contended, that the right to redeem is a favored claim. But the extent and limit of the favor due to it has been fixed by law. This we are not 1 Hobbs V. Fuller, 9 Gray, 98. * Howard v. Handy, 35 N. H. 315. '^ Hurd V. Coleman, 42 Maine, 182. 5 Boyd v. Shaw, 2 Sliepl. 58. 3 Holbrook v. Thomas, 38 Maine, 256. 6 2 Shepl. 65. CH. XXXIV.] FORECLOSURE BY ENTRY WITHOUT SUIT. 277 at liberty to transcend. It is very manifest, tliat the move- ment to redeem had its origin in tlie very great and sudden appreciation of the land. The plaintifT's grantor, a man of ample means, had slum1)cred upon the claim now set up for twenty years. lie was under no obligation to pay the debt due to the defendant. For the greater i)art of that period, it was doubtful whether the value of the land was ccpial to tliat debt. If it had depreciated, the loss would have fallen uj)ou the de- fendant ; and it is but just tliat tlic chance of gain should be accorded to him who runs the hazard of tlie loss." § 7. If tlie mortgagee, prior to the Revised Statutes, took actual possession, complying with the prescribed formalities ; the mortgage became foreclosed after three years, though for twelve or fifteen years and during his life the mortgagor con- tinued to occupy the land, without paying rent or any change in his occupancy. By these proceedings, he became a tenant at will of the mortgagee, and his possession therefore was that of the mortgngec ; the terms actual 2^ossession in the statute being designed merely to negative a possession adverse to the mortgagee. The occupation was in the mortgagor, but the possessio7i in the mortgagee. The Court further remark, that it is not the leading purpose of the statute to give notice to third persons of the proceedings to foreclose, but only to the mortgagor ; substituting an open and visible entry in place of a judgment, at the time when the term of foreclosure should begin. 1 § 8. A mortgagee, having quitclaimed to a third person part of the mortgaged premises, with the knowledge of the mort- gagor, entered for condition broken and foreclosure. A cer- tificate, not stating on what part he entered, was indorsed on the mortgage and recorded. The grantee continued in pos- session of his part of the land three years after such entry. Held, the mortgage as to this portion was foreclosed.^ § 9. In Massachusetts, the Revised Statutes, ch. 107, § 2, having provided that a certificate of entry and possession by the mortgagee shall be evidence thereof; the clTect of such 1 Swift V. IMtMulclI; 8 Cush. 357. And see Iladley v. Ilaugliton, 7 Pick. 29. 2 llaymoud v. Raymond, 7 Cush. 605. 278 THE LAW OF MORTGAGES. [CH. XXXIV. certificate cannot be avoided by proof that the mortgagee did not actually go upon the land.^ So a mortgagor who signs a certificate, on the mortgage, of a lawful entry on the mortgaged premises, according to the Rev. Sts. ch. 107, § 2, cannot deny the fact of such entry .^ So a certificate of two witnesses, made more than twenty years since, to the entry of a mortga- gee for the purpose of foreclosure, is admissible in evidence of the mortgagee's title, if supported by the testimony of the witnesses that the entry was made in the presence of the mort- gagor, and that they intended, when they signed the certificate, to certify the truth, although they cannot now recall all the facts stated in the certificate.^ So an entry on part of land mort- gaged by one general description, a certificate of which entry is duly made on the mortgage deed and recorded, pursuant to Rev. Sts. ch. 107, § 2, as an entry on the whole land, and fol- lowed by three years' possession, forecloses the right of re- demption of the whole land, against the mortgagor and all claiming under him by title subsequent to the mortgage, even against such a claimant, who during the three years had possession of part of the land, and blasted, cut, and carried away stone therefrom.^ § 10. But, in New Hampshire, a written acknowledgment that the mortgagee has entered and taken peaceable possession for foreclosure, and is in full and peaceable possession, with an agreement that the mortgagor's entry during the year to take the crops, &c., shall be not in derogation of but in subordina- tion to the mortgagee's title ; is no evidence of foreclosure nor of actual possession as against a stranger.^ So, in Maine, the mortgagor's admission of, or consent to the mortgagee's entry, is not sufficient for foreclosure,*" and the witnesses must certify an entry for breach of condition or foreclosure.'^ So a statute of Maine provided for the redemption of estates mortgaged, within three years after the mortgagee or his assignee should " lawfully enter and obtain the actual possession of such lands 1 Oakham v. Rutland, 4 Cush. » Worster y. Great Falls, &c., 41 N.H. 172. 16. 2 Bennett v. Conant, 10 Cusli. 163. *^ Chamberlain v. Gardiner, 38uMaine, 3 Smith V. Johns, 3 Gray, 517. 548. * Lenuon v. Porter, 5 Gray, 318. '' Morris v. Day, 37 Maine, 386. CH. XXXIV.] FORECLOSURE BY ENTRY WITHOUT SUIT. 279 or tenements for condition broken." The entry might be made by process of law ; by the consent in writing of the mortgagor or those claiming under him ; or by the mortgagee's taking peaceable and open possession in the jn'oscnce of two witnesses. In the case of Pease v. Benson ,i the mortgagor signed a paper, containing the words, " I hereby give possession." Held, this paper did not prove the fact, that an actual entry was made, and possession obtained. Even if the parties intended to admit that actual possession had been taken, they could not cause a foreclosure in a manner not authorized by the statute, nor sub- stitute a fiction for an actual entry. Tlic legal effect of the paper, at most, could be no more than to express the consent required by the statute. And it might be doubtful whether it was sufficient even for that purpose, as it did not in terms ex- press consent that possession be taken for condition broken. So under the clause in the statute of IMaine, requiring " the consent of the mortgagor or those claiming under him;'^ if the mortgagor has transferred his estate, his grantee must consent. So if he also has conveyed, but taken a mortgage back.2 (ft) § 11. Where a mortgage covers several lots in the same county and town, which are in possession of the same person ; entry on one, to foreclose the mortgage, is sufficient for all.^ § 12. -A mortgagee need not have his deed with him, nor make any express declaration of his. intention, when he enters for condition broken. It is sufficient if it appears that the entry is for such breach. An authority from the mortgagor to deliver possession need not be in writing. Nor need an entry be made at the time upon the land if the mortgagee goes to it, and afterwards takes possession, and occupies, with the knowl- edge and assent of the mortgagor.* 1 28 Maine, 336. ■^ Chase v. Gates, 33 Maine, 3G3. 3 Shapley v. Eangeley, 1 W. & M. 213. * Skinner v. Brewer, 4 Pick. 408. (a) In Maine, where a mortgagee cate, lie cannot maintain an action enters, *after condition broken, declaring for hay cut against one acting under his purpose to be to foreclose, but the mortgagor. Potter v. Small, 47 neglects to record the statutory certifi- Maine, 293. 280 THE LAW OF MORTGAGES. [CH. XXXIV. § 13. Where one enters as attorney for the mortgagee, but without legal authority, a subsequent adoption of the entry by the mortgagee, by a writing given to the mortgagor, will be sufficient to foreclose the mortgage.^ § 14. It has been held that an entry, after breach of condi- tion, will be presumed to be for the purpose of foreclosure.^ § 15. Where an assignee enters, after breach of condition, to foreclose the mortgage, although he holds but one of two notes secured by the mortgage, the entry will be considered as made for non-payment of both. And, if the premises w^ere at the time equal in value to the amount of both notes, the fore- closure will operate as payment of both.^ § 16. The assignee of a mortgage takes, by the assignment, all benefits to be derived from any entry by the mortgagee to foreclose.* § 17. Where part of the mortgaged property is subject to a life-estate, and the mortgagee enters into the residue and re- tains peaceable possession for a year, giving due notice by pub- lication ; the mortgage is foreclosed.^'^ § 18. In Maine, if the assignee of a mortgage obtains a con- ditional judgment against the purchaser of the equity, and executes a writ of possession, and the owner of the equity thereupon becomes the tenant of the assignee, agreeing to pay him rent ; a possession tlius held during the time required by the statute will foreclose a mortgage.*^ So in New Hampshire, where an entry is made by a mortgagee to foreclose his mort- gage, under Rev. Sts. ch. 131, § 14, possession may be held by him through the mortgagor as his tenant; and such posses- sion, being actual and peaceable, is as good as though held by the mortgagee in person.''' So if the mortgagee remain in possession a year after condition broken, with the mortgagor; this is a sufficient possession to foreclose the mortgage.^ § 19. A voluntary surrender by the mortgagor, after judg- ment of foreclosure, and even the taking of a lease from the 1 Cutts I'. York, &c., 6 Shcpl. 190. 4 Howard v. Handy, 35 N. H. 315. 2 Hunt V. Stiles, 10 N. H. 4G8 ; Tay- & Colby v. Poor, 15 N. H. 198. lor V. Weld, 5 Mass. 109. 6 Hurd v. Coleman, 42 Maine, 182. ■* Haynes v. Wellington, 25 Maine, "^ Howard v. Handy, 35 N. H. 315. 458. 8 Gilman v. Hadden, 5 N. H. 30. CH. XXXIV.] FORECLOSURE BY ENTRY WITHOUT SUIT. 281 mortgagee, wliicli recites the judgment, merely gives ordinary peaceable possession to the mortgagee, not possession under the judgment.^ § 20. Where an owner of land conveyed it, taking a mort- gage back, and his executor afterwards entered for condition broken, and he, or those claiming under him, foreclosed the mortgage ; it was held, upon the question whether there had been a dedication of the land to public uses, that such mort- gagee was to be regarded as the owner without interruption.^ § 21. In Massachusetts, a mortgagee in possession, having entered for breach of condition, may still maintain a writ of entry to foreclose the mortgage.*'^ And the commencement of a suit by a mortgagee in possession, to foreclose the mort- gage by action, is not an abandonment of his possession.'^ § 22. It is held in Maine, that an entry to foreclose a mort- gage is waived, by the subsequent commencement and prose- cution of an action thereupon.^ But, in the case of Fay v. Valentine,^ a bill in equity set forth, that the plaintiff was the owner of an equity of redemption ; that the defendant, holding the mortgage, had commenced legal proceedings for possession, recovered a judgment, taken out execution, and received pos- session thereupon ; and that the plaintiff, within three years, bad made the requisite demand for an account. The defendant pleaded, that about the time of such judgment, and more than a year before possession was delivered by the sheriff, he en- tered for foreclosure, according to law, and had been in pos- session more than three years, when an account was demanded. Held, the plea was insufiTicient. Tiie Court say (in substance), the writ against the defendant admitted him to be then in pos- session, and the entry under the judgment showed the mort- gagor to have lawful seisin till that time. The entry in pais cannot be considered as made for the purpose of foreclosure, while the suit was pending. Had the suit been discontinued, it might have been otherwise. If such entry is not fraudulent, 1 Bellows V. Stone, 14 N. H. 175. * Pacce v. Robinson, 10 Cush. 99. 2 Wright V. Tukcy, 3 Cush. 390. 5 Smith v. Kelley, 27 Maine, 237; 8 Merriam v. Merriam, Mass. S. J. C, Kelley v. Smith, ib. October T., 1850, Law Kcp. July, 1852, 6 5 pjck. 418. p. 169. 282 . THE LAW OF MORTGAGES. [CH. XXXIV. it is calculated to deceive the mortgagor, and expose him to the loss of his opportunity to redeem. § 23. It is said : " A foreclosure may be opened by express agreement of parties, or by facts from which such an agree- ment may be inferred." ^ So, that possession may be aban- doned by a mortgagee, either by his own voluntary act of an unequivocal character, or by an arrangement between him and the party holding the equity of redemption, without reference to the etfect of such relinquishment of possession upon the foreclosure.- Thus, where a mortgagee, having entered for condition broken, is put under guardianship as a spendthrift, tlie guardian may restore possession to the mortgagor, and so prevent a foreclosure.^ So it is held, that a foreclosure is waived by subsequently receiving part of the debt.* So a bond, given by the mortgagee to the mortgagor before the foreclosure is perfected, conditioned to discharge the mortgage upon pay- ment of the debt at a future day, before which the debt is paid and the mortgage discharged ; prevents the foreclosure from taking effect.^ § 23 a. A mortgage was made by husband and wife of four parcels of land, three belonging to her, and the other to him, to secure his debt. An attorney of the mortgagee entered for breach of condition upon one of the lots belonging to the wife, having the mortgage in his possession, and stating, in presence and hearing of the husband, and of two witnesses, that he entered for condition broken. Afterwards certain acts were done, amounting to a waiver by the mortgagee of this entry. After three years from such entry, the mortgagee, with the assent and at the request of the husband, but without the knowledge of the wife, made a quitclaim deed of the premises to B,, who was not, however, present at the time, by which he did " remise, release, bargain, sell and convey, and forever quitclaim unto said B. the land described in said deed of mort- gage, entry having been made to foreclose, and the right of redemption having expired, and the said B. having, at the re- ^ Per Thomas, J., Joslin v. Wyman, ^ Botham v. Mclutier, 19 Pick. 346. 9 Gray, 63. * Deming v. Comings, 11 N. H. 474. 2 Per Dewey, J., Charles v. Dunbar, * Joslin v. Wyman, 9 Gray, 63. 4 Met. 503. CH. XXXIV.] FORFXLOSURE BY ENTRY WITHOUT SUIT. . 283 quest of said A. (the husband), paid the amount which would be due on said mortgage. This release is made to said B., at the request of said A., and wife, and is intended to discharge all title acquired by said mortgagee." Held, B. might recover the land from A.^ § 23 b. Upon the same principle, where the purchaser of an equity of redemption agreed to receive the price paid by him more than one year from his purchase ; held, a waiver of all claim to absolute titlc.^ So a mortgagee, having taken posses- sion according to the statute, stipulates in writing to reconvey, whenever the debt should be satisfied out of the rents and profits, or otherwise. Held, the mortgagor, notwithstanding the lapse of more than three years, may have a bill in equity to redeem.^ So a parol agreement was made between a mort- gagor and mortgagee, that the land should be taken in satis- faction of the debt. Held, the mortgagor was entitled to redeem, and the mortgagee, who had subsequently assigned the mortgage, was estopped from setting up the parol agree- ment.'* («) 1 Kangely v. Spring, 28 Maine, 127. 2 McLear v. Morgan, 5 B. Mon. 282. 8 Quint V. Little, 4 Greenl. 495. * Whitney v. M'Kinney, 7 John. Ch. 144. (a) Where a subsequent mortgagee The promise of a mortgagee, who paid a decree to foreclose a prior mort- has begun proceedings to foreclose, to gage, after the decree had expired, with give the mortgagor six months to re- the consent of the mortgagee ; held, deem after the regular time for redemp- that he redeemed tlie property and tion would expire, opens the mortgage, opened the decree, so as to give to all for such period, beyond it. Chase v. persons interested their respective rights McLellan, 49 Maine, 375. according to the priority of their re- If, in a suit in equity to redeem, the spective equities. Woodward v. Cow- defendant, in his answer, has expressly dery, 41 Verm. 496. waived all objections to redemption. The plaintiff purchased tlic interest upon payment of all such sums as shall of A. in a decree of foreclosure, a short be found due, he cannot afterwards in- time before the expiration of the time sist that the mortgage had been fore- of redemption, at the request of the closed before commencement of the mortgagor, to give him further time to suit. Strong v. Blanchard, 4 Allen, pay. Held, this purchase opened the 538. decree, and the rights of the mortgagor Payment of part of the mortgage were left in the same state in which debt to the mortgagee, or of part of the they were before it was made. Cooper purchase-money to the purchaser of the V. Cole, 38 Verm. 185. equity of redemption, under a verbal 284 THE LAW OF MORTGAGES. [CH. XXXIV. § 24. But an instrnmcnt waiving tlie entry of the mortgagee will have no effect, unless delivered to the mortgagor.^ And the waiver of foreclosure must be made by him who is the party at the time? So where the assignees of a mortgagor, long before the three years after entry for foreclosure had ex- pired, paid the amount of the debt to the assignees of the mortgage, entered upon the land, and received an agreement in writing to assign or convey to them on demand, and to pay over the money, in case of redemption ; but also to perfect the foreclosure, if requested by the mortgagor's assignees : held, the entry was not waived.^ So a mortgage may be assigned after an entry for foreclosure, and the assignment will not of itself stay the foreclosure.* So an entry is not waived or post- poned by the mortgagee's rendering an account, in which he charges himself with rent, as commencing after such entry .^ So if a statement of a mortgagee to the mortgagor, made one month previously to the time when the entry to foreclose would become perfected, that " he would give him some time, but that he must not wait long, as he might take advantage of the mortgage," be binding on a grantee of the mortgagee, without notice ; the right of redemption does not continue five years without payment or tender.^ So a promise ma'de by a mort- gagee, after the time limited for redemption in a decree for foreclosvire, to receive the debt and surrender all claim to the land, will have no effect, unless made on legal and suflQcient consideration.'^ § 25. After the time limited for redemption by a decree of foreclosure had expired, the assignee of the mortgagor con- tracted to pay the mortgagee a sum exceeding the amount due on the mortgage, and to receive a deed of the land. He paid as much as was due, gave his note for the remainder, and took the deed. Held, he was liable on the note, though induced to 1 Cutts V. York, &c., 6 Shepl. 190. 5 Hobbs v. FuUer, 9 Gray, 98. 2 Fisher v. Shaw, 42 Maine, 32. 6 Danforth v. Roberts, 20 Maine, » Cutts V. York, &c., 6 Shepl. 191. 307. 4 Ilurd V. Coleman, 42 Maine, 182. 7 Smalley v. Hicok, 12 Verm. 153. agreement for postponement of the forfeiture and prevents a foreclosure. payment of the balance due, waives a Moore v. Beasom, 44 N. H. 215. CH. XXXIV.] FORECLOSURE BY ENTRY WITHOUT SUIT. 285 enter into the contract by the peculiar situation of his busi- ness, which was unknown to the other party. ^ (a) 1 Smalley v. Ilicok, 12 Verm. 153. Crittenden v. Rogers, 8 Gray, (rt) A quitcliiim tleeil to one of two mortgagors, from a mortgagee wlio has foreclosed, in consideration of the pay- ment of a sum equal to the original mortgage debt, is not sufficient evi- dence of an opening of the foreclo- gagors. 452. A stipulation between the parties to a mortgage, that judgment might be entered for a certain sum, is no waiver of the right to foreclose. Nosier v. Bure to revest the title in the mort- Ilaynes, 2 Nev. 63, 286 THE LAW OF MORTGAGES. [CH. XXXV. CHAPTER XXXV. FORECLOSURE IN CASE OF THE INSOLVENCY OF THE MORTGAGOR. 1. Insolvency of the mortgagor's estate after his death. 8. Insolvency or bankruptcj- of the mortgagor during his life ; proceedings of in- solvency courts. § 1. The law provides peculiar modes of foreclosing a mortgage, more summary and favorable to the mortgagee, in many of the States, than the ordinary methods ; where the mortgagor becomes insolvent, and no chance remains of satis- fying the debt in any other way. («) § 2. In case of the insolvency of a mortgagor, or of his es- tate after his decease, the rights of the mortgagee in obtaining payment of his claim have been a subject of much conflicting opinion and practice. One course has been, where a mort- gagor dies insolvent, to have the whole debt allowed by tlie commissioners of insolvency, and permit the mortgagee, after receiving his dividend upon this sum, to hold the land as secu- rity for the balance. This practice has been adopted in Con- necticut and New Hampshire. But in Massachusetts the practice is, to allow the mortgagee only the excess of the debt over the value of the mortgage. This is in analogy with the English practice in cases of bankruptcy. And, in England, the mortgagee will be allowed to prove against the estate of the deceased mortgagor only what remains due after a sale of the land.i (5) 1 Amory v. Francis, 16 Mass. 308; Halscy v. Reed, 9 Paige, 446; Church Greenwood v. Taylor, 1 Russ. & M. v. Savage, 7 Cush. 441. See Belloc v. 185; Doe v. McLoskey, 1 Ala. (N. S.) Rogers, 9 Cal. 123. 708 ; Rowe v. Young, 4 Y. & Coll. 204 ; (a) The defendant made a mortgage debt (in case of the mortgagor's de- as security for an agreement, which was cease) has the same efl'ect as that of to continue three years. Upon his in- any other debt. No foreclosure being solvency, held a breach, and that the necessary, a bill for that purpose can- mortgage could be foreclosed. Hard- not be sustained. Falkner v. Folsom, ing V. Mill, 34 Conn. 458. 6 Cal. 412. (b) The allowance of a mortgage CH. XXXV.] FORECLOSURE IN CASE OF INSOLVENCY, ETC. 287 § 3. Ill the case of Amory v. Francis,^ Parker, C. J., re- marks : " The rule adopted by the Court of Chaucery in Eng- land, and enforced by the commissioners of bankruptcy, is certainly just and equitable ; requiring that every creditor, having a mortgage or other security, shall, before he is ad- mitted to prove his debt, surrender his security for the benefit of the other creditors, the proceeds of the sale going into the common fund ; or shall suffer the pledge to be sold, taking the proceeds towards his debt, and proving under the commission for the residue. If it were not so, the equality, intended to be produced by the bankrupt laws, would be grossly violated ; and the creditor holding the pledge would in fact have a greater security than that pledge was intended to give him. For, orig- inally, it would have been security only for a proportion of the debt equal to its value ; whereas by proving the whole debt, and holding the pledge for the balance, it becomes security for as much more than its value, as is the dividend whicli may be received upon the whole debt. There seems to be no good reason why the same rule should not be applied to the settle- ment of the estates of deceased insolvent debtors in this Com- monwealth. For the statute, which provides for the distribution of these among creditors, requires an equal j'^ro rata distribu- tion ; and it never could have been intended by the legislature, that a creditor having security should have any advantage be- yond the actual value of the property secured. If the creditor had taken possession of the mortgaged premises and foreclosed the mortgage, he would have a right to consider the estate as payment of tlic debt 2)ro tanto, according to its value, and file his claim before the commissioners for the balance ; as has been settled in several cases. Now, although it does not ap- pear, in the case before us, that the mortgagee has entered for condition broken ; yet he insists upon holding his mortgage, and it ought to be presumed that he means to enter and hold the estate ; so that no injustice will be done him by consid- ering it as payment according to its value. For he will either hold the estate discharged of the condition, or will receive his whole debt with interest, if tlie administrator slionld dccin it 1 IG Mass. 3n, 312. 288 THE LAW OP MORTGAGES. [CH. XXXV. for the interest of the creditors to redeem. For, notwithstand- ing the debt may much exceed the value of the pledge, the administrator cannot redeem without paying the whole debt. If there is any difficulty in applying this rule here, it arises from the want of a compulsory power to sell the mortgaged property, as would be done before commissioners of bankrupt in England. This, however, may be done by consent ; the administrator applying to this court for leave to join in the sale, and to execute a release of the right of redemption. If the parties should not consent, the commissioners might estimate the value of the mortgaged estate, and deduct so much from the creditor's claim, leaving him to his right under the mort- gage ; and either he or the administrator, if dissatisfied, may take measures to have the estimate corrected by a jury on a trial at law ; and both of them will be bound by the issue." (a) § 4. In the same State, where the estate of a deceased mort- gagor is represented insolvent, in a bill for redemption brought against the mortgagee by a purchaser of the equity of re- demption from the heirs, the defendant may claim the full balance due upon the mortgage, although he has proved his debt before commissioners, and received dividends, deducting tlie estimated value of the land. The defendant may also claim the amount of a prior mortgage paid by him, after tak- ing possession, although discharged upon the record before the plaintiff's title accrued ; if the whole amount claimed by the defendant is less than what appeared due upon his mortgage by the record.^ § 5. In Vermont, a failure, on the part of the mortgagee, to 1 Davis V. Winn, 2 Allen, 111. (rt) In the case of the Middlesex sioners of insolvency, until further Bank v. Minot (4 Met. 325) the doc- proceedings to settle the value of the trine laid down in Amory v. Francis shares. was affirmed ; and it was further held, So in a later case it is held, that if that where the mortgagees, after the a mortgagor of personal property dies mortgagor's death, sold the property insolvent, in order to prove the whole (being shares in a bank) at public auc- debt before commissioners of ins»l- tion, under a power of sale contained vcncy, the creditor must waive his se- in tlie mortgage, hut themselces became curity. But if he apply it to the claim, the. purchasers ; the sale was void, and and a balance still remain due, he may the mortgagees could not claim a bal- prove such balance. Farnum v. Bou- ance of tlieir debt before conmiis- telle, 13 Met. 159. CII. XXXV.] FORECLOSURE IN CASE OP INSOLVENCY, ETC. 289 present his claim to the commissioners upon tlic estate of tlic deceased mortgagor, does not allect the validity of the mort- gage.^ Nor does the presentment of the claim have this effect.- So the mortgagee's claim against the estate of the mortgagor may be allowed, without affecting tlic mortgage.*^ § 6. In Connecticut, in the case of Findlay v. Hosmer,* it was held that where a mortgagee, the mortgagor having died insolvent, proved his claim before commissioners ; a purchase of the equity of redemption by him did not extinguish such claim, or preclude him from a distributive share. § 7. In a suit brought for the administration of assets, a mortgagee prayed that he miglit prove liis debt in full, and the mortgaged estate he sold, and that to the extent of the deficiency he might receive payment from the proof in the cause pari 23assH with the other creditors. Held, as in bank- ruptcy, he could only prove for the deficiency.^ § 8. Similar rules prevail (as has been already suggested) in case of the bankruptcy or insolvency of the mortgagor while living ; the court, in which proceedings are pending, being usually empowered to authorize an immediate sale of the mortgaged property, and admit the mortgagee to prove the balance of his claim, with other creditors, for the purpose of a dividend.*^ § 9. Under the late bankrupt law of the United States, the mortgagee might take the security at its value, to be ascer- tained by the Court, and prove for the balance. Or the Court might order it sold or appraised, or allow the creditor to take it, at its full nominal value.' (a) § 10. In Massachusetts, it is provided by statute, 1838 (^ihe Insolvent Lmv, ch. 163, § 3), that, when the creditor of an insolvent debtor holds a mortgage to secure a debt, the prop- 1 Grafton, &c. v. Doe, 19 Verm. 463. "^ See Ililliard on Bankruptcy, &c., 2 Putnam v. Russell, 17 Verm. 54. 117. 3 Walker t'. Baxter, 26 Verm. 710. ^ Case of Grant, Law Rep., Nov. * 2 Conn. 350. 1842, p. 303. 5 Greenwood v. Taylor, 1 R. & My. 187. (a) Under this law, a /M(/r/men< creditor, Briggsv. Stephens, Law Rep., Oct. 1844, who proved his debt, thereby lost the p. 281 (N. Y.) ; case of Christy, 3 How. lien of the judgment upon real estate. 292. See Bankrupt Law of 1867. VOL. 11. 19 290 THE LAW OF MORTGAGES. [CH. XXXV. erty may be sold, if he so require, and tlie proceeds applied to such debt, and he be admitted as a creditor for the residue, if any. Or such creditor may release and deliver up to the assignees the premises held as security, and shall thereupon bo admitted as a creditor for his whole debt. Unless the property is thus sold or released, the creditor cannot prove any part of his debt. § 11. Under this act it has been held, that such creditor cannot prove his claim at the first meeting ; at least, not till after the choice or appointment of an assignee. The statute provides, that all papers necessary to the sale shall be exe- cuted by the creditor and the assignee, or the property given up to the assignee ; neither of which conditions can be complied with, unless there be an assignee in existence. ^ § 12. The statute has been held applicable, although the collateral security in question was not given by the insolvent himself. Thus a note was made by three persons, one of them being in reality the principal, and the others mere sure- ties. The principal gave a mortgage to the creditor as se- curity. All the makers having become insolvent, the payee offered to prove the whole amount of his debt, without deduct- ing the value of the property mortgaged, against the estate of one of the sureties. Held, the case was within the equity, if not the letter of the statute, and such proof could not be allowed.^ § 13. The Supreme Court of Massachusetts have no appel- late jurisdiction, under the Insolvent Act of 1838, ch. 163, § 3, of an application by a mortgagee under section 3 for a sale of the mortgaged property ; but, under section 18 of the same act, they have original jurisdiction of such application, and will therefore act upon a petition, praying for a revision of the proceedings of a Master in Chancery upon such application, the petitioner having appealed from his decision.^ § 14. Where an application to a Master in Chancery, acting under the insolvent law, for a sale of mortgaged property, is opposed, upon the ground that the mortgage is fraudulent ; the 1 Case of Baker, Sup. Jud. Court, '^ Lanckton v. "Wolcott, 6 Met. 305. Jan. 1846, 8 Law Rep. 46L ^ Barnard v. Eaton, 2 Cusli. 294. CH. XXXV.] FORECLOSURE IN CASE OF INSOLVENCY, ETC. 291 fraud or preference must be specially set forth, and the evi- dence of it in some form laid before the Court. A general allegation is not sufficient.^ § 15. Stat. 1838, ch. 103, § 3, docs not authorize an a1)S0- lute sale of mortgaged premises, upon petition of the mort- gagee to the Master in Chancery, where the equity of redemption has been absolutely conveyed by the insolvent, with a verbal condition to reconvey, upon payment of a debt. Such a construction would be inconsistent with the statute, which allows a right of redemption for three years, and this act is not to be considered as repealed by implication. But where both creditors thus petitioned, and the petition of the first was granted, and that of the second disallowed, and the latter then applied to the Supreme Court for an injunction of the sale by the first mortgagee, and for permission to sell upon his own petition ; held, the petitioner having thus submitted himself to the Court, a sale of the estate should be ordered, the two mortgagees joining the assignee in the deed, and the proceeds applied to the mortgages in their order.^ 1 Barnard v. Eaton, 2 Cush. 204. 2 Hunnewell v. Goodrich, 3 Cush. See Eastman r, Foster, 8 Met. 19. 469. 292 THE LAW OF MORTGAGES. [CH. XXXVI. CHAPTER XXXVI. EFFECT OF FORECLOSURE UPON THE DEBT ; HOW FAR IT OPERATES AS PAYMENT ; SUIT FOR A BALANCE ; OPENING OF THE FORE- CLOSURE. 1. General effect of foreclosure. 3. Opinions of elementary' writers. 2. Foreclosure is pnyment pro tanto ; 5. English decisions. whether an action can be brought for a 9. American decisions, balnnce, and whether the foreclosure is 35. Miscellaneous points, thereby opened. § 1. It has been repeatedly stated in the foregoing pages, that, so long as the mortgagee retains his mortgage, and the estate thereby transferred, merely as security for a debt, he still remains in all respects a creditor, and may pursue all his remedies for the purpose of obtaining satisfaction of such debt. Foreclosure, however, in whatever way effected, of course works an important change in the relation of the par- ties to the mortgage. The mortgagee, or, in case of fore- closure by sale, the purchaser, becomes absolute owner of the property, and the mortgagor loses all title to it. But an im- portant question remains, as to the effect of this change of title upon the mortgage debt. § 2. The principle is well settled, upon this subject, that foreclosure pays or extinguishes the mortgage debt, to the extent of the value of the property, (a) " The foreclosure of a mortgage is in no strict legal sense a payment ; yet inas- much as it would be inconsistent with the plain principles of justice for the mortgagee to hold the land, and yet receive the full amount of his debt, and as the debtor is precluded by force of the statute from redeeming the land, the Courts have said, as a rule plainly resulting from the operation of the stat- ute, that the value of the land shall enure by way of paymenj; ; and as there is no act of the parties ascertaining this value, (a) See Vansant v. Allmon, 23 HI. 30. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 293 it sliall be fixed by appraisement." ^ So " upon foreclosure, the whole debt is paid, though made by an assignee, who holds only a part of such debt; if 'the premises are of suffi- cient value." ^ So, if a mortgagee foreclose his mortgage, his debt becomes by that act extinguished, to the extent of the value of the land at the time of the foreclosure ; and any other things, which he may hold as collateral security for the debt, become thereby exonerated to the same extent.''^ (a) The only points of doubt and discussion have been, first, whether the mortgagee may still maintain an action for the balance of the debt, after deducting such value ; and second, whether by the bringing'of such action the foreclosure is opened, and the right of redemption revived. § 3. Upon this subject Chancellor Kent says : ^ " The better opinion is, that such action (an action for the balance of the debt) may be brought." Judge Story says : ° "If foreclosure of a mortgage operated as payment of the debt, it would frequently prove, in literal exactness of language, mortuum vadium, a dead and worthless security. If the mortgagee is compellable to make an election, the pursuit of a remedy upon the personal security is an abandonment of the pledge, while an appropriation of the latter is an abandonment of the debt. In a case, therefore, of suspected insolvency, he would be en- circled with perils on every side ; and, instead of a double security for his debt, would be left with scarcely a single plank to save himself in the shipwreck." § 4. Upon the general subject of opening a foreclosure, Mr. Coote remarks, that a foreclosure in equity may sometimes be opened many years after the decree and the possession under it ; as where the decree was obtained by fraud.*^ He 1 Per Sliaw, C. J., Briggs v. Rich- ^ Smith v. Packard, 19 N. U. 575. mond, 10 Pick. 30G ; Ilurd v. Coleman, < 4 Comm. 183. 42 Maine, 182. 5 Hatch v. White, 2 Gall. 154. '^ Jolmson V. Candage, 31 Maine, 28. ^ Coote, 570. (a) Where a mortgage is assigned tinction is made between such a case, as collateral security, and foreclosed by and the effect of foreclosure as between the assignee, and the land afterwards the parties to the mortgage ; in refer- sold ; the debt secured by such assign- ence to whom foreclosure operates as ment is not paid by such sale, but only payment. Brown v. Tyler, 8 Gray, by actual receipt of the price. A dis- 135. 294 THE LAW OP MORTGAGES. [CH. XXXVI. further says/ Equity will not open a decree of foreclosure, by reason of the overvalue of the estate, and a parol a.ujreement to permit a redemption ; S,nd, after twenty years' possession, the Court will not set aside a foreclosure for mere form. Nor will it be opened merely because the mortgagee devises the estate as money, or notices it, for a collateral purpose, as a debt ; nor where the estate has been considerably altered, as well as long in possession of the mortgagee. It is said no general rule can be laid down upon the subject, but each case depends on its own circumstances. § 5. In Tooke v. Hartley,^ the bill in the original cause by the mortgagee was, that the defendant, the mortgagor, might redeem or stand foreclosed ; and there was the common decree of foreclosure ; the defendant not paying the money reported due by the time appointed, he was absolutely foreclosed. The plaintiff, the mortgagee, afterwards sold the estate so foreclosed, and the money produced by the sale not amounting to what was reported on the mortgage, he brought his action against the mortgagor to recover the deficiency. The plaintiff in this suit thereupon brought his bill for an injunction, to stay the defendant's proceeding at law, upon the ground that, having got his pledge, he could have no more, and obtained an injunc- tion till answer and further order. Upon showing cause for continuance of the injunction, his lordship (Lord Thurlow) was clear, that the defendant, the mortgagee, under the mort- gagor's covenant in the mortgage deed, was entitled to be paid what was due on the mortgage ; that so long as he kept the estate, he must take the pledge as a satisfaction, because, by not knowing what it would produce, he could not say any thing was due ; but if he sold the estate fairly, and without collusion, and for the best price, it would then appear whether it pro- duced the amount of the money reported due ; and to the extent of what it did not, the mortgagee had a right, and so it was now established, to bring an action against the mortgagor to recover the deficiency. Injunction dissolved. § G. In the case of Perry v. Barker,^ Lord Eldon intimated an opinion, that a suit would not lie upon the debt, after a 1 Coote, 571. 2 2 Dick. 785. 3 g Ves. 527. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 295 sale of the land, because the mortgagee no longer had power to reconvcy the estate ; but at the same time remarked, that Lord Thurlow had decided that the action might be main- tained, either before or after a sale. In a subsequent hearing of the same case,' Lord Erskine held, that an action would lie upon the bond after foreclosure ; but the right of redemption was thereby revived, and, if the mortgagee had sold the land, he should be allowed time to get it back. But where tliis could not be done, that the suit would be restrained by a per- petual injunction. § 7. Ill Perry v. Barker,^ which was a mortgage for a long term of years, the mortgagee obtained a decree of foreclosure, took possession, sold the estate by auction, and afterwards called upon the mortgagor for the balance of the debt, with interest from completion of the sale, and brought an action upon the mortgage bond. The plaintiff files a bill praying for redemption and injunction, or that the defendant may be de- creed to have elected to take the premises in satisfaction of his debt, to deliver up tlie bond, and be for ever restrained from proceeding against the plaintiff. Lord Eldon says : ^ " No case has been produced, previous to 178G, in which, after a foreclosure, the mortgagee has brought the estate to sale, and afterwards brought an action for the money. That cir- cumstance has some weight. The action in that case must have 'been for the whole money, for it was an action upon the bond. But consider how it would be if the action was upon the covenant, laying the damages for the remainder of the money. It is not very consistent to say, you open the foreclo- sure, desiring him to bring in only the remainder of the money ; for tlie consequence of opening the foreclosure would be, that a new account should be taken of the principal and interest ; and the money to be brought in upon that footing should be all that is due, or nothing. The case of Tooke v. Hartley certainly does not decide this ; for the estate, in fact, sold or not, was in the possession of the mortgagee ; and if placed in the same situation as if there had been no foreclo- sure, the estate being in his possession, what was required 1 13 Ves. 197. 2 8 Yes. 528. » Ibid. 531. ^ 296 THE LAW OP MORTGAGES. [CH. XXXVI. by justice as to the reconveyance might be done by the Court. But where it is sold to a stranger, that cannot be. The power of reconveyance is gone, and the mortgagor cannot have the right, if it is to be considered opened. At the same time I certainly understood Lord Tliurlow's opinion to have been, that, whether the estate was sold to a stranger, or remained in the possession of the mortgngee, there was no distinction ; but an action might be brought for the difference. That opinion of Lord Thurlow, and the circumstance that this particular case was never decided, make it proper at present to grant the injunction, extending it to stay trial, the plaintiff paying the money into court." § 8. In the case of Lockhart v. Hardy ,i the Master of the Rolls expressed an opinion, tiiat a court of equity would grant an injunction, against a suit at law upon the personal obligation, for which a mortgage had been given as security, after foreclosure of the mortgage ; and refused to let the mort- gagee come in under an administration suit, and prove for the deficiency. § 9. Li Hatch v. White,^ Judge Story expresses doubts, whether a suit upon the mortgage debt should be enjoined by a court of chancery, until the mortgagee has been fully paid ; and also whether the foreclosure is opened by bring- ing an action for the debt. He remarks, that a foreclosure may properly be regarded as a purchase, at the full value of the land, if less than the debt, and, if greater, at the amount of the debt. Where the debt is much less than the value of the land, the mortgage will seldom be foreclosed ; hence fore- closure is primd facie evidence that the land is insufficient to pay the debt. By taking the land, the creditor suffers an inconvenience. He must lose by any depreciation of value, and therefore he ought to have the benefit of any rise in value. If, after foreclosure, tlie mortgagee should go into a court of equity for further relief, he might be held to the rule of recip- rocal equity ; but this does not justify an injunction against the enforcement of legal rights. And even if such injunction should be granted where the estate remains unsold ; it would 1 9 Beav. 349. 2 2 Gall. 159, 160, 161. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 297 seem that after a sale he ought to recover tlic balance due. Whatever may be the practice in equity, all decisions concur in the principle, that at law foreclosure of a mortgage is no bar to a suit for the balance of the debt. Judge Story further holds, that whatever rule upon this subject a court of chan- cery, acting upon its own peculiar principles, may adopt, it will not authorize the opening of a foreclosure, in consequence of a suit upon the bond, where the right of redemption is by statute limited to a certain time after possession taken by the mortgagee. § 10. Assumpsit for the balance of a simple contract debt, originally secured by mortgage. The plaintiff had foreclosed the mortgage and taken possession ; and now sued for the balance of the debt, deducting the value of the mortgaged property at the time of foreclosure. Story, J. : " This ques- tion has been long since settled by the local law. In Araory v. Fairbanks (3 Mass. R. 562), the Supreme Court of this State affirmed the right ; and this court afterwards, in Hatch v. White (2 Gallison,R. 152, 161), recognized the same doctrine. It is too late now to controvert it." ^ § 11. In Massachusetts it is now provided by statute,^ that, where a suit is brought upon the debt after foreclosure, the mortgagor may redeem within one year from the recovery of judgment. Independently of this express provision, several cases have been decided, relating to the points now under con- sideration. § 12. Mortgage to secure several notes. The mortgagee assigns the notes and mortgage, the assignee agreeing to pay him $500, as soon as it could be collected on one of the notes for that sum. Tiie assignee received 130 on this note, and took possession for the purpose of foreclosure. The mort- gagor occupied for some time afterwards as his tenant, but, being insolvent, never paid rent. Within three years from the entry, the mortgagee brings an action against the assignee, declaring upon his contract, and for money had and received. Held, the taking possession was no payment of the mortgage, and therefore the defendant was not liable upon his contract ; 1 Omaly v. Swan, 3 Mas. 474. 2 Rev. Stats. 638. See Gen. Stats. 298 ■ THE LAW OF MORTGAGES. [CH. XXXVI. and that he was not liable for the $30, unless specially de- manded, till the whole sum was paid ; nor for any more rent than he had actually received.^ § 13. In a later case, the following remarks were made by the Court: "That a foreclosure may be opened after the three years have elapsed, by express agreement, or by facts and circumstances from which such an agreement may be satis- factorily inferred, where the parties choose to consider the property as a mere security for an existing debt, and where the rights of others have not intervened, we are inclined to admit. But it cannot be allowed where the facts which are relied upon are at all doubtful in tlieir character ; or where they may be explained consistently with the right of the mort- gagees to retain the estate under the foreclosure. We are aware that the Revised Statutes make provision only in one instance for the opening of a foreclosure, after the time for redemption has expired. Where the mortgagee, or person entitled to the debt secured by the mortgage, shall, after the foreclosure, ' recover judgment for any part of the debt, on the ground that the value of the mortgaged premises, at the time of the foreclosure, was less than tiie sum due thereon, such recovery shall open the foreclosure, and the mortgagor, or the person claiming or holding under him, may redeem the prem- ises ; provided his bill of redemption be brought within one year after the recovery of such judgment.' Revised Statutes, cli. 107, § 33. And it is argued from that provision, that a foreclosure can be opened in no other case, and, if opened, the bill for redemption must be filed within one year after. It must be observed, however, in answer to this argument, that this statute provision relates to a case where the parties have rights secured to them by the express terms of the law. But the cases to which we have referred, where a foreclosure may perhaps be opened, and the mortgagor restored to his right of redemption, are those which result from the agree- ment of the parties, and not from statutory provisions. In the case at bar, sundry payments have been made by the mortgagor since the three years after entry for condition broken have ex- 1 West V. Chamberlin, 8 Pick. 336. Cn. XXXVI.] FORECLOSURE ; WUETIIER PAYMENT, ETC. 299 pired ; admitting for this purpose, that the possession was con- tinued l>y the mortgagees so as to perfect their right under their entry. But the value of the premises, at the time wheu the right of redemption expired, is not stated nor agreed upon ; nor does it appear whether the payments were made hecausc the deht was not satisfied, and tiie party made them in good faith, toward the payments of the balance of the debt, after crediting the value of the land, or whether they were made under an agreement to open the foreclosure. The only fact that clearly appears, is that of payments, after the foreclosure, on account of the debt ; but this furnishes no satisfactory evi- dence of an agreement to oi)en the foreclosure." ^ § 14. In the same case it was held, that mere receipt of a part of the money, after foreclosure, does not of itself prove the intention of the parties to open the mortgage and waive the foreclosure. Thus, after the expiration of three years from the entry to foreclose, money was received " as interest on the note secured by mortgage ; " but it appeared, that during the three years the mortgagor had occupied as tenant and paid no interest, and the above payment did not exceed the interest then due, as an equivalent for the rent. Also, that after the mortgage was admitted by the mortgagor to be foreclosed, he requested the mortgagees to give him one month more to pay the note, and they assented to it. PTeld, the pay- ment did not open the foreclosure, and that the contract was a mere executory agreement, constituting a limited extension of the time, within which, if the debt were paid, the mortgagor might claim a reconveyance in equity ; or, if he were in pos- session, the mortgagee enjoined from suing him at law. But on the expiration of the time, payment not being made, the mortgagee became absolute owner, in law and equity.- § 15. In another case, in the same State, the general doc- trine upon this subject is stated, with certain qualifications growing out of the peculiar circumstances of that case. § 16. " If the original creditor continues to hold the note, and converts the property held as collateral into money, or 1 Per Hubbard, J., Lawrence v. 2 Lawrence v. Fletcher, 10 Met. Fletcher, 8 Met. 165, 16G. 344. 300 THE LAW OF MORTGAGES. [CH. XXXVI. forecloses a mortgage upon it, it may operate as payment in whole or in part, according to its valne. So, if the indorsee of the note is also the assignee of the mortgage. But here the plaintiff was not assignee of the mortgage, and took no interest in or claim to it, legal or equitable. If the bank took the whole of the mortgaged property for one or two of the notes held by them, and if the property was worth much more than the amount of the notes, it cannot affect the plaintiff's right as indorsee. If not redeemed, and they foreclosed the mortgage rightfully, as a mortgage of the whole property for each several note, it was done in pursuance of a right conferred on them by the defendant." ^ § 17. By request of a mortgagor, after the mortgagee had been in possession more than two years for foreclosure, A. took an assignment of the mortgage, and paid the debt, orally agreeing with the mortgagor to hold the mortgage for his use and benefit, subject to the repayment of the amount paid, and to allow the mortgagor to sell the lands in lots, paying the pro- ceeds to him, till reimbursed, and to redeem the land at any time, by paying the amount advanced with interest. Held, this agreement did not stop the foreclosure, nor create a trust for the mortgagor. The whole consideration being paid by A., no implied trust arose ; and there was no express trust, for want of a writing. Nor did the agreement constitute a mort- gage, being subsequent in time to the original conveyance.^ § 18. Eight days before expiration of three years' possession, the mortgagees agreed with the mortgagor for themselves and all claiming under them, that, in consideration that no bill should be filed to redeem, the right of redemption should be continued for one year from the 7th of May, 1838 ; and, on his part, the owner of the equity agreed, that during said year no bill should be filed to redeem, and that on the 7th of May, 1839, the principal and compound interest, on the amount secured by the mortgage, including expenses, &c., should be paid to the owner of the mortgage, or, in default thereof, said .right in equity should be foreclosed. Before the year elapsed, 1 Per Shaw, C. J., Leland v. Loring, 10 Met. 125. '^ Capen v. Richardson, 7 Gray, 364. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 301 a bill to redeem was preferred. Held, a contract to forbear to prefer a bill to redeem, for a limited time, is valid, though not under seal ; that this contract must be restricted to the eight days, during which the right to prefer a bill remained ; that the stipulation not to prefer a bill during the year, and at the end of the year to be foreclosed, unless the sums stipulated were paid, was void, or at least voidable ; and that the agree- ment not only carried the right to redeem over the year, but protracted it indefinitely.^ § 19. If, by an agreement to postpone the day of foreclosure, the power or right to redeem be interrupted, the mortgagee will be put to a new entry in order to foreclose.^ § 20. Though the stipulation not to redeem during the year was void or voidable, yet the other stipulations were valid, that the owner of the equity of redemption, in order to entitle him to maintain his bill, should pay the amounts agreed upon in the contract.^ («) § 21. In Connecticut a statute provides, that, after foreclo- sure, the mortgagee may maintain an action for the balance of his debt, estimating the value at the time when the right of redemption expired.*^ § 22. If the value of the property exceeds the debt, foreclo- sure operates as payment, even at law.^ ^ Daniels v. Mowry, 1 Rhode Island, ' Ibid. 151. * Conn. Stat. 194. ^ Ibid. 5 Bassett v. Mason, 18 Conn. 131. (n) See Stoddard y. Forbes, 13 Iowa, and payment of their several dcl)ts, 296. In ascertaining tiie amount of a and that tiie land shall not be sold for conditional judgment, no deduction five j'ears without consent of tlie mort- should be made for a payment to the gagor ; tlio declarations of the holder mortgagee of a sum over tlie interest of a subsequent mortgage are not due, in consideration of iiis forbearance thereby made competent evidence, to enter and foreclose, if not stipulated after his death, in behalf of tiie otliers, for in tiie original contract. Drury v. to establish payments or expenditures Morse, 3 Allen, 445 for which they claim allowance under If the holder of a mortgage, who has their mortgages ; nor is he thereby entered for the purpose of foreclosure, authorized to bind the mortgagor by has agreed with the holders of other payments or expenditures for or on ac- mortgagcs to waive his entry and pos- count of the land, which would other- session, and that the parties shall oc- wise be unauthorized. Strong v. Blau- cupy as joint property for the security chard, 4 Allen, 538. 302 THE LAW OP MORTGAGES. [CH. XXXVI. § 23. Prior to any statute upon the subject, several cases occurred, in which the points now under consideration were considered. § 24. Action of disseisin. Plea, that the defendant mort- gaged the demanded premises to secure two notes, one of which had been paid, and upon the other a judgment recov- ered, and execution taken out, and that " the plaintiff having made his election of the personal security given as afore- said, said deeds have become void in law." Judgment for the plaintiff.^ Tiie Court say : ^ " The plaintiff's deed vested him immediately with the fee of the land, and was defeasible only by the payment of two certain notes, one of which is not yet paid. The suit had upon it was a demand, but not payment. As to the plaintiff's having made his election by that suit, it is true he can have but one satisfaction for his debt, but both securities hold till he has that. No proceedings on the note, short of payment, will exonerate the land, nor will ejectment, or any proceedings on the land, discharge the note, unless it be a foreclosure of the equity of redemption, which takes it out of the nature of a pledge, and appropriates it in payment; nor, as halh been contended, is the pendency of a process on one of the securities a bar in the mean time to a process on the other. Satisfaction for the debt is the object ; this it is the duty of the debtor to make, and all the pledges or securities he has seen fit to give, to enforce a fulfilment of the duty, hold, and may be relied on and pursued until it is performed. Should there be an attempt to pursue either of them further, specific relief may be had, by an audita querela^ or a bill in equity." § 25. Action to recover a note. Plea, that the debtor mort- gaged, to secure the same, land of greater value than the note, and that possession had been taken of said land, and the mort- gage foreclosed by a decree in chancery ; and thereby the note was paid. Replication, that the rents did not pay the interest of the amount of the debt ; that the plaintiff sold the land at auction, and it brought a certain sum less than tliat amount. Upon demurrer, held, the replication was insufficient. The Court say : " In this State, a mortgage given to secure a debt 1 Coit V. Fitch, Kirby, 254. 2 Ibid. 255. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 303 by bond, note, or other specialty is a real security given in aid of the personal security, which the mortgagee had before. And tlic mortgagee may pursue eitlier, or botii, until he obtains satisfaction. If he recovers his debt, the mortgage is released. If he choose to take the land and to make it his own, abso- lutely, whereby the mortgagor is totally divested of his equity of redemption, the debt is tliereby paid and discharged. And if it eventually proves insullicient to raise the sum due, it is the mortgagee's own fault, and at his risk." ^ § 26. A creditor, whose claim was secured by mortgage, ob- tained a decree of foreclosure against the mortgagor ; the time limited by the decree for redemption expired ; and the plain- tilTs took possession of the mortgaged premises. In an action against a sheriff, for neglecting to serve and return an execu- tion, founded upon a judgment recovered on the mortgage debt, the defendant relied upon such foreclosure as a defence. Held, the defence was valid. The Court say: " It is unneces- sary to examine the case with a view to first princi|)les. In this State, it has long been considered as established law, that a foreclosure and consequent possession is in the luiture of satisfaction of a debt secured by mortgage. It is deemed an appropriation of the thing pledged, in payment of tlio demand for which it was security. On this foundation estates have been purchased, and much inconvenience would probably arise from the adoption of new principles at this time, in subversion of titles founded on valuable considerations. Waiving the expression of an opinion on the legal fitness of the rule, in the absence of precedent, I am of opinion that the law is settled, and ought not to be disturbed." ^ § 27. In Maine,^ where a mortgage is foreclosed, the value of the land shall go to extinguish the debt, wholly or pro tanto. The mortgagee may recover the balance,'* but is not entitled to an account of profits.^ § 28. In Vermont, a decree of foreclosure, whether upon a bill in chancery, or in an action of ejectment, and an expira- 1 McEwen v. Welles, 1 Root, 202, 3 Soutliard v. Wilson, 29 Maine, 56. 203. < Porter v. Pillsbury, 30 Maine, 278. 2 The Derby, &c. v. Landon, 3 Conn. * Ibid. 62, 63, 64. 304 THE LAW OP MORTGAGES. [CH. XXXVI. tioii of the time of redemption and possession, operate as a satisfaction of the mortgage notes, if the property is sufficient, if not, as payment pro tanto} An action may be maintained upon promissory notes, though secured by a mortgage which has been foreclosed, and though, with others secured in tlie same way, they were described in the bill of foreclosure ; if it appear that they were not presented to the Master in Cliancery on taking the account, nor included in the decree. A mort-- gagee is not bound to foreclose for all his notes.^ § 29. In New Hampshire it is said : " The object of such entry is to procure payment by foreclosure, unless payment should be otherwise made, and the land discharged ; and whenever the title to the land is perfected by this process, the debt is extinguished so far as there is actual value received." ^ § 30. In New York the following case has been decided. Declaration on a bond. Plea, that the bond was executed con- currently with, and as collateral security to a mortgage ; that the mortgage was foreclosed in chancery ; and the mortgaged premises sold, whereby the debt was satisfied. Replication, that the premises did not sell for sufficient to satisfy the bond and mortgage ; and the plaintiff showed that more than $4000 were unpaid by the sale or otherwise. General demurrer and joinder. Held, the plaintiffs were entitled to judgment.* § 31. In New Jersey, if after foreclosure by decree the cred- itor proceeds for the debt, the foreclosure is opened.^ § 32. In Maryland, the Court remark as follows : " The' mortgaged estate is considered as a pledge sufficient for the satisfaction of the debt; and as having been so taken by the parties themselves by the nature of their contract. There- fore if the creditor, on his bill in equity, has a decree to fore- close and nothing more, he is held to have obtained that kind of satisfaction of his claim for which he stipulated ; and if after such a decree he sues upon the bond, he thereby opens the decree, and admits the right of the mortgagor to redeem ; 1 Paris y. Hulett,26 Verm. 308. Ace. 3 pgr Upham, J., Hunt v. Stiles, 10 Lovell V. Leland, 3 Verm. 581 ; contra, N. H. 469. Strong V. Strong, 2 Aik. 373. « The Globe, &e. v. Lansing, 5 Cow. 2 Langdon v. Paul, 20 Verm. 217. 380. 5 Osborne v. Tunis, 1 Dutch. 633. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 305 because by tlie institution of tlie suit he disclaims the satis- faction he had obtained by the decree. And if he has placed it out of the mortgagor's power to redeem, by aliening the estate after the decree, he will be perpetually enjoined from proceeding upon tlie bond. But if tlie creditor on his bill in equity, instead of a decree to foreclose, obtains a decree for a sale, and the mortgaged estate sells for less than the debt, the balance may be recovered in an action on the covenant or bond, without opening or affecting such a decree for a sale, by which the pledge itself is not taken as a satisfaction, as by a decree to foreclose." ^ § 33. In Ohio, where the mortgaged premises arc sold under judicial proceedings against the mortgagor, and purchased by the mortgagee ; a reversal of the judgment revives the mort- gagor's right of redemption.- § 34. Ill Iowa, where an action was brought to recover an instalment due upon a mortgage note, and for non-payment of a previous instalment the plaintiff had foreclosed by taking possession, and the time for redemption had expired before this suit was brought: held, the suit did not open the foreclo- sure ; that the proceeding to foreclose was for the instalment then due, — the amount sued for in this case not having been due at that time, — and that the amount then found to be due by that adjudication was not open for investigation in this case. Held, also, that the plaintiff, having foreclosed by taking possession, instead of by sale, should only be held for the value of the promises so entered upon, and pro tanto the defendant was entitled to a credit on the mortgage.^ § 35. Where a second mortgagee takes a conveyance of the land from another person, holding a first and a third mort- gage, after the latter has entered under and foreclosed the first and third mortgages : it is no defence to a suit by the second mortgagee upon his note, that the land and its rents and profits are of greater value than the aggregates of the amounts se- cured by all the mortgages ; because the plaintiff has acquired 1 Per Bland, Clianccllor, Andrews v. Scotton, 2 Bland, 6G6. 2 Hiibbel V. Broadwcll, 8 Ham. 120. 3 Wilson V. Wibon, 4 Iowa, 80'J. VOL. II. 20 306 THE LAW OF MORTGAGES. [CH. XXXVI. an absolute title to the land, wholly independent of the second mortgage.^ § 36. Where several notes are secured by one mortgage, but only one of them is due at the time of the mortgagee's entry, and a foreclosure takes place ; such foreclosure shall operate as a payment of this particular note.^ § 37. Feb. 16, 1836, the plaintiff conveyed certain land to the defendant, taking back for the price four notes, secured by mortgage of the land, and payable at different times. Feb. 22, 1837, this action (of assumpsit) was commenced and property attached upon the note, which was payable in one year, being the second of the four notes. April 12, 1837, the plaintiff entered for foreclosure, and by a year's posses- sion the mortgage was foreclosed. - At the time of entry the first note had been paid, and the value of the land exceeded the amount of the second note, the interest on the others, and the costs of this suit. Held, the action could not be main- tained, the facts amounting to payment of the note.^ The Court say : " Where several notes have fallen due prior to an entry to foreclose, we are not prepared to say that a special entry may not be made for the purpose of foreclosing the mortgage upon a particular note. This, however, is question- able ; as the consecutive order of the notes connected with the lien may so determine the order of payment as to prevent any change in this respect by the mortgagee. But where only one note has fallen due, an entry to foreclose must be upon that note. In this case, the first note had been paid. The second note had fallen due prior to the entry, and the third note became due a few months before the foreclosure. The entry to foreclose could only have relation, then, to the second note ; and the payment received is necessarily upon that note." The Court further remark : " It is now said that there is an attacliment made of other property, sufficient to pay this note, and if it is paid by the mortgaged property the attachment will be lost, and that the remaining notes cannot be collected. If this is so, the misfortune is that the mortgagee, in pursuing 1 Hedge v. Holmes, 10 Pick. 380. 2 Hunt v. Stiles, 10 N. H. 466. See Fariium v. IMetcalf, 6 Cush. 46. ^ Ibid. 469. CH. XXXVI.] FORECLOSURE ; WHETHER PAYMENT, ETC. 307 his double remedy at his own election, has perfected his mode of payment by the land in the first instance. If he had other means of collection, of which he migiit have availed himself more to his interest, he should have seen to this. But pay- ment having once been made, all other liens must cease. It is too late for him now to reverse the order of his proceedings, and appropriate the funds received to the payment of cither note, at his election ; or, rather, the election has already been made, and payment perfected under it, and the state of facts cannot now be changed." ^ § 38. Mere delay to foreclose, where interest has been paid, and there has been no request to the mortgagee to foreclose, will not render him chargeable with a loss from a fall in the market value of the mortgaged property, in an action by the mortgagee for the deficiency after foreclosure.^ 1 Hunt V. Stiles, 10 N. H. 469, 470. '^ Mercliants' Ins. Co. v. Hinman, 34 Barb. 410. 308 THE LAW OP MORTGAGES. [CH. XXXVII. CHAPTER XXXVII. SALE, ETC., OF EQUITIES OF REDEMPTION ON EXECUTION. 1. Equity of redemption liable to be taken on execution. 5. Statutory provisions of the several States upon this subject; miscellaneous decisions as to the mode of levying execu- tions. 22. Whether an equity of redemption shall be sold, or set o^ bj^ appraisement; how the mortgage shall be estimated in an appraisement; defects and errors in this respect. 28. Effect of the sale of an equity of redemption, where the mortgage has been extinguished. 34. Mode of levving in case of a fraudu- lent mortgage. 37. Whether a levj' may be made upon a portion of the mortgaged premises. 40. Effect of the officer's deed to a pur- chaser; whether registration is necessary to pass a title. 43. Whether the mortgagor can defend against a suit for the land, and on what grounds. 48. Redemption of an equity of re- demption sold on execution. 64. Nature of the title remaining in the mortgagor after a sale on execution; whether liable to legal process or voluntary transfer. 67. Mode of proceeding in case of several processes against the same debtor; disposition of the proceeds of sale, &c. 76. Whether seisin of the mortgagor is necessary, to authorize an execution sale of his right. 78. Right of redeeming subsequent mortgages; whether liable to be taken on execution. 79. Miscellaneous points. § 1. Having in the last chapter considered the snbject of a foreclosure sale, made for the benefit of the mortgagee, tlie natural order of subjects leads to a consideration of another mode of foreclosing the equity of redemption by process of law, but for the benefit of third persons, not parties to the mortgage ; subject, of course, to the rights of the mortgagee ; to wit, a sale at law hy execution. As has been already stated {swpra, ch. 15), the right of a mortgagor to redeem the mort- gage is almost universally liable, in the United States, to be taken on execution hy his creditors, (a) This liability seems to (a) See Curtis v. Root, 20 111. 53; Knight V. Fair, 9 Cal. 117 ; Perry v. Hayward, 12 Cush. 344 ; Pratt v. Skol- field, 45 Maine, 386 ; Harwell v. Pitts, 20 Geo. 723 ; Lenox v. Lotrebe, 1 Hemp. 251 ; Thompson v. Parker, 2 Jones, Eq. 475 ; Woods v. Gilson, 17 111. 218 ; Reed V. Diven, 7 Ind. 189. It has been held, in Mississippi, that an equity of redemption, whether be- fore or after condition broken, is not subject to sale on execution, unless the CH. XXXVII.] EXECUTION SALE, ETC. 309 be a necessary iiicjdent to, or consequence of, the principle, that tlie mortgagor, until foreclosure, and as to third persons, remains the owner of the land, while the mortgagee has a mere lien, not subject to legal process.^ § 2. The jyosscssion of the mortgagor is held not to be neces- sary to a levy on the equity, unless some other person has ad- verse possession."-^ § 3. Though a mortgage is made by an absolute deed and defeasance back, the grantor's right of redemption is subject to sale on execution. Thus, in case of an absolute deed to secure a loan, with a defeasance back, the grantee sold the land, and it was afterwards sold upon an execution against the first vendor. The execution purchaser brings ejectment against the second grantee. Held, the plaintiff merely took the right to redeem, on payment to the defendant of tiie original debt.^ § 4. It has been held that, where one person conveys land to another, upon trust to secure the payment of a note, due from the grantor to a third person, with power to sell on fail- ure of payment, and with condition to be void upon payment, the interest of the grantor is liable to be taken on execution.* ^ See Farmers', &c. v. Commercial, '^ Watkins v. Gregory, 6 Blackf. &c., 10 Oliio, 71 ; Planter v. Hunter, 113. Walker, l'J4; Watkius v. Gregory, G '^ Kerr i". Davidson, 10 Ired. 269. Blackf. 113. ■* State v. Lawsou, 1 Eng. 269. whole debt has been paid. Boarman r. l)ut the creilitor may, by bill in equity, Catlett, 13 Sm. & M. 149; Thornhill r. compel the heir to sell the reversion, Gilmer, 4, 153. See Wolfe v. Dowell, even, it seems, if expectant on an estate 13, 103; Henry v. Fullerton, ib. 631. tail. Coote, 81. In Ohio, where one has conveyed l)y It is doubtful whether chancery has an absolute deed, with an agreement jurisdiction of a bill in favor of an in- by tlie grantee to reconvey upon re- cumbrancer, for an injunction against a payment of the purchase-money and sale under an execution levied on the interest within a certain time; a cred- property. Byrne v. Anderson, 10 S. & itor of the vqndor, in order to obtain a M. 81. sale of tiie land, must first tender this In Texas, equities of redemption are amount to the vendee. Marshall v. subject to execution, except' where the Stewart, 17 Uiiio, 350. mortgage is given to secure the pur- Wlicre a mortgage is for a term of chase-money of the land. Ballard i-. years, leaving a legal reversion in the Anderson, 18 Tex. 377. They are tiius mortgagor, the reversion in fee will be liable, notwithstanding a power of sale legal assets. The judgment at law in the mortgage. Wootton r. Wheeler, will be only of assets quando acciderint, 22 Tex. 338. 310 THE LAW OP MORTGAGES. [CH. XXXVII. But, in Ohio, a deed of trust made to secure a debt, and so drawn as for most purposes to constitute a mortgage, passes the legal title, and leaves nothing in the grantor subject to ex- ecution.^ § 5. In most of the States, the statutory law provides gen- erally for the mode of levying execution upon real i^roperty, including, of course, equities of redemption. It is foreign from the plan of the present work to state these provisions in detail, as they do not specially pertain to the subject of mort- gages, (a) It need only be remarked, that the course of pro- ceeding is very various in the different States : in some, real property being sold on execution, like chattels ; in others, ex- tended or set off to the creditor, by appraisement ; and in others, the one or the other of these methods being adopted, according to circumstances. The practice last named {extenf) prevails in Massachusetts, (h) Pennsylvania, Delaware, New 1 Morris v. Way, 16 Ohio, 469. (a) Late statutes in the several States may have materially modified the law which has hitherto prevailed upon this subject. Obviously, how- ever, the statutes themselves are the only safe guide upon a matter so entirely local, and running so much into detail. It is therefore deemed un- necessary to inquire with more particu- larity into the statutory provisions, if such there are. (h) In this State, the advertisement of the sale of an equity should specify the place of sale. But a false return, that the place had been specified, is conclusive between the creditor and debtor, and those claiming under them. Whitaker v. Sumner, 7 Pick. 551. The officer's notice of such sale need not contain a particular descrip- tion of the land. A general one is sufiiclent. Pomeroy v. Winship, 12 Mass. 514. Where an execution against a de- ceased person is levied on a right in equity, the notice should be given to the executor or administrator, not the heirs. Atkins v. Sawyer, 1 Pick. 351. Sunday is not to be reckoned as one of the three days for wliich such sale may be adjourned. Thayer v. Felt, 4 Pick. 354. In Maine, if the purchaser of an equity of redemption, sold on execu- tion, has satisfied and paid the mort- gage, the mortgagor, or those claiming under him, having redeemed the equity of redemption within one year after such sale, may redeem such mortgaged estate, within the time and in the man- ner he might have redeemed it of the mortgagee, if there had been no such sale. Rev. Stat., Maine, 1857, ch. 89. In the same State, levies may be made on lands mortgaged as on lands not mortgaged, and the amount due on the mortgage deducted by the apprais- ers. If tlie full amount due was not deducted, or if the levy was made in the usual form, and it is ascertained that there was a mortgage on the CH. XXXVII.] EXECUTION SALE, ETC. 311 Jersey, North Carolina, Alabama, Tennessee, Illinois, Ken- tucky, Indiana, Ohio, ]\Iichigan, Arkansas, Mississippi, and perhaps some other States. In Maryland, South Carolina, Georgia, New York, Missouri, and perhaps other States, real estate is sold on execution. In Vermont, equities of redemp- tion are either sold or set oiF. In the other New England States, it would seem that they arc appraised and set off.^ § 6. Numerous questions have arisen, with reference to the mode of levying executions upon equities of redemption; the proper disposition of the proceeds of such levies ; and their effects upon the respective rights of the mortgagor, the mort- gagee, and the execution purchaser. It will be seen, tliat, in some of the cases cited, the property has been levied on, either by mistake or design, without reference to an existing incum- brance. In others, occurring in those States where real prop- erty is liable to attachment upon the original writ, (a) as well 1 See Hill, on R. P. ch. 100. premises, not incUirling other real estate, and not known to the creditor at the time of levy ; he may recover of the debtor the amount due on such mortgage. Such levies may be redeemed within one year, as in other cases. When the debtor pays on the mortgage after the levy, and does not redeem, he may recover the amount so paid of the creditor, in an action for money had and received. Rights of reileeming real estate mortgaged may be taken on execu- tion and sold, and tlie officer shall account to the debtor for any surplus proceeds of tlie sale, to be appropri- ated as provided in section 21 of chap- ter 84. When a right of redemption has been attaclied, judgment recovered, and a sale of it is to be made, the creditor may demand of the mortga- gee to disclose, in writing under his hand, the condition of the mortgage and the sum duo thereon, which shall be furnished witliin twenty-four hours ; and, in case of neglect, he shall be liable for damages. If such disclosure is not furnished within that time, the creditor may apply to any magistrate, autliorized to take depositions, for relief. Rev. Stat, of Maine, ch. 76, p. 463. ('() In New Hampshire, an attach- ment of real estate gives a lien upon the debtor's right of redeeming from execution or tax sales. The creditor has a right to discharge any incum- brance, and either he or the oiKcer may demand a statement of its amount. Unless furnished in fifteen days, or if untrue, the incumbrance is discharged. After payment, if the attachment is defeated, the creditor may claim a con- veyance from the incumbrancer of his title, and, if not made, may recover back the sum paid. If such convey- ance is made, the debtor is notified and may still redeem. Any change in the title of a debtor to lands attached has no effect upon the attachment, but his whole interest is bound thereby. N. II. Rev. Stats. 368, 369. 812 THE LAW OF MORTGAGES. [CH. XXXVII. as sale on execution ; a mortgage existing at the time of attach- ment has been extinguished before the levy, thus raising a doubt whether the execution is to be levied as upon incum- bered or unincumbered property. On account of the diversity of statutory regulation and established practice upon the sub- ject in the different States, the decisions are of a miscellaneous character, and it is difficult to deduce from them any prin- ciples universally applicable. § 7. In South Carolina, it has been held, that, where aji.fa. is delivered to an officer, with orders to execute it by levy and sale of the debtor's lands, the sheriff is not bound to search the public offices, to ascertain whether the property is mort- gaged, nor to sell by virtue of any mortgage, but may sell sub- ject to all incumbrances.^ § 8. In the same State, an execution purchaser of mortgaged land takes the place of the mortgagor in all his rights and duties.^ § 9. So in Connecticut, the seizure, appraisal, and setting off of an equity of redemption to the creditor, on execution, vests in him all the rights of the mortgagor.^ § 10. In the same State, if the value of the equity does not exceed the amount of the execution, the whole may be taken, and the mortgagor's right will be extinguished. But if the value exceeds the amount of the execution, the latter must be levied on an undivided part, sufficient to satisfy it ; and the creditor and mortgagor will then become tenants in common. The levy must be made on the equity, not on the land, the fee being in the mortgagee.* § 11. In New Hampshire, it has been held, that the proper mode of applying an equity of redemption to the satisfaction of the mortgagor's debts, is by attachment and sale of the equity as such. But a levy, disregarding the mortgage, is valid against the mortgagor, but does not affect the rights of the mortgagee.^ 1 Comm'rs, &c. v. Hart, 1 Brev. 492. * Ibid. ; Hinman v. Leavenworth, See Bennett v. Calhoun, &c., 9 Rich. 2 Conn. 244 ; Scripture v. Jolnison, 3, Eq. 103. 211; Hobart v. Frisbie, 5, 592; Plielps 2 State V. Laval, 4 McC. 336. v. Ellsworth, 3 Day, 397. 3 Punderson v. Brown, 1 Day, 93. ^ Kelly v. Buruham, 9 N. H. 20. CH. XXXVII.] EXECUTION SALE, ETC. 313 § 12. In Vermont, it is held, that in a levy upon mortgaged premises the amount of the mortgages should be stated.^ § 12 a. If the debt exceed the appraised value of the equity, the creditor is nevertheless not bound to levy upon the entire interest of the debtor, but may levy, for a portion of his debt, upon an undivided part of the debtor's interest.^ § 12 h. So, though the execution of another creditor, for a •portion of the debt contained in his execution, is at the same time levied upon the residue of the debtor's interest, thus mak- ing the two creditors tenants in common of the entire equity.'^ § 13. In Pennsylvania, under aji.fa., an inquisition must be held on lands, though mortgaged ; a venditioni exponas without it is irregular.'* § 14. In the same State, a parol agreement, at the time of a sheriff's sale under a judgment, between one holding a mort- gage prior to the judgment, and one who contemplated pur- chasing the land, that the mortgage might remain a lien, and that the purchaser should be required to pay only the surplus of the purchase-money over the mortgage, is not binding upon one claiming under such purchaser without notice.^ § 15. In the same State, it is held, that land may be sold on execution, subject to a mortgage, though not the first incum- brance, if it be so understood and agreed by the purchaser at the time of sale.*^ § 16. In North Carolina, if mortgaged premises are sold, upon an execution against the mortgagor, for more than the amount of the execution ; the mortgagee is entitled to the surplus.'' § 17. In Ohio, lands mortgaged since June, 1805, must be sold on execution in the manner prescribed by the execution law at the time of sale.*^ § 18. In Kentucky, an execution sale of land, as the abso- lute property of the debtor, will pass all the interest that be has, subject to the execution ; as an equity of redemption where the land is mortgaged. ^ 1 Swift V. Dean, 11 Verm. 323. 6 Tower's, &c., 9 W. & S. 103. - Kimball v. Smith, 21 Verm. 449. ^ Jones v. Thomas, 4 Ired. 12. 3 Ibid. 8 Allen v. Parish, 3 Ham. 52G. * Naples I'. Minier, 8 Penn. 475. ^ Dougherty v. Linthicum, 8 Dana, 5 Roberts v. Williams, 5 Whart. 194. See Brace v. Shaw, IG B. Mon. 170. 43 ; Mercer v. Tinsley, 14, 273. 314 THE LAW OF MORTGAGES. [CH. XXXVII. § 18 a. The statute, which subjects property mortgaged to be sold under execution, expressly provides that the same shall be sold as if no incumbrance existed. (1 Stat. Law, 653.) And therefore a sale of lands and slaves, under a mortgage, should have been a separate one, as though there was no mort- gage in existence, and selling them in gross was illegal, and the sale was a nullity.^ § 19. In Louisiana, where a sheriff seizes, advertises, and sells, " all the right, title, and interest of the debtor in a lot of ground " owned by him, but subject to mortgages ; the seizure and sale is of the property itself, not of the debtor's interest after the mortgages are paid.^ § 20. In Alabama, when a sheriff levies upon land, which he afterwards finds to be incumbered by mortgage, he is bound to make a further levy, unless there is reason to expect that the property will bring enough to satisfy the execution.^ § 21. In Maine, if a creditor extend his execution on land mortgaged for more than its value, not knowing of the mort- gage, though long recorded ; he may have an alias execution and satisfaction from other estate, agreeably to the Stat, of 1821, ch. 210.4 8 22. In Massachusetts it has been held, that, where an exe- cution is extended upon property subject to mortgage, and in the appraisal no deduction made for such mortgage ; the creditor acquires a good title as against the debtor and those claiming under him, if he is willing to take it as clear from incumbrance. In the case of Warren v. Childs,^ Sewall, C. J., expressed a doubt, whether the provision by statute for selling equities on execution did not supersede the levy by extent and appraisement, (a) He, however, seems to admit that this mode may be pursued, if no deduction is made in the appraise- ment for the mortgage. And in the case of White v. Bond,^ 1 Lee V. Fellowes, 10 B. Mon. 117. 4 Steward v. Allen, 5 Greenl. 103. 2 Trudeau v. Mc Vicar, 1 La. An. 426. 5 11 Mass. 222. 3 Governor v. Powell, 9 Ala. 83. 6 le Mass. 400. Ace. Hovey v. Bart- See PauUing v. Barron, 32 Ala. 9. lett, 84 N. H. 278. (a) In Louisiana, a mortgage debtor, sell on executory process, cannot ques- wlio has legally renounced the benefit tion the sale. New Orleans v. Bagley, of appraisement in the proceedings to 19 La. An. 89. CH. XXXVII.] EXECUTION SALE, ETC. 315 this principle was distinctly settled, and the demandant in a real action, claiming under such a levy by appraisement, re- covered judgment against the tenant who claimed under a similar subsequent levy, made after the mortgage debt was paid, (a) § 23. In the case of Litchfield v. Cudworth,^ an execution against the owner of an equity of redemption was extended on the land, and the return stated that the debtor^ s rigid in the premises was appraised, but not that the mortgage was disre- garded in making the appraisal. Held, for this omission, the extent was void. Morton, J., remarks : ^ " The estate being under mortgage, the equity of redemption only could be taken on execution. The mode of levying upon equities is prescribed by Stat. 1708, ch. 77, §§ 3 & 4. That this is the most proper mode cannot be doubted ; and it was at first very questionable whether it did not supersede every other mode. And even now it may be considered doubtful, whether the judgment creditor, knowing of the existence of a valid incumbrance, may have his election to sell the equity of redemption by auc- tion, or to extend upon the land by appraisal, without regard to the incumbrance. But as it sometimes may happen that mortgages may exist without the knowledge of the creditor, or that he may not know whether they are genuine or fictitious, or may suppose that the incumbrances have been removed, or may desire to contest them on the ground of fraud or collu- 1 15 Pick. 23. 2 Ibid. 27. (a) By the Revised Statutes (pp. gage as he might have done from the 468,469; see also Gen. Stats.), equities mortgagee, if the execution had not of redemption may be set off, like un- been levied. If he does not thus ro- incumbered real estate, at the election deem, the creditor shall hold the prem- of the creditor ; the amount of the ises as assignee of the mortgage, free mortgage being deducted in the ap- from redemption, though the debtor praisenient. If after a levy there proves have redeemed, or oflered to redeem, to be a mortgage, not known or allowed the right levied upon. If the debtor for by the appraisers, the levy shall does not redeem such right within the still be good against the debtor, and year, the creditor .shall hold the prem- the creditor in a new action may re- ises against him, though ho has re- cover the amount paid on the mort- deemed, or offered to redeem, the gage. The same redemption is allowed mortgage. An over-appraisement avoids as in case of miincumbered property, the levy. M'Gregor v. Williams, 10 If the creditor pays the mortgage debt, Cush. 526. the mortgagor may redeem the mort- 316 . THE LAW OF MORTGAGES. [CH. XXXVII. sion, it has been holdeu, that he may extend his execution upon the whole estate, by an appraisal of its full value. Such a levy will pass all the debtor's interest. But an equity of redemption, as such, cannot be taken in this form. If the amount of the incumbrance be deducted in tlie appraisal, the levy will be void. And this rule is founded upon good reasons. For the mortgagor may voluntarily remove the incumbrance, or may be compelled on his personal security to pay the debt, and thus the creditor may get the estate relieved of an incum- brance which was considered in the appraisal. As this is a statute mode of conveyance, all the requirements of the stat- ute must not only be complied with, but this must appear in the return itself. It should appear with reasonable certainty that the whole estate, and not the equity of redemption, was appraised. The return does not show this. The appraisal was of the debtor's right in the premises, which would apply quite as well to the debtor's interest in the equity, as to his portion of the land itself, and renders it doubtful whether the incumbrances were not deducted, and indeed probable that they were." § 24. In the case of the Mechanics' Bank v. Williams,^ an execution was extended on mortgaged land, and the appraisers certified, that they appraised the estate at a certain sum, at which it was set off. Held, the extent was valid, as it was to be inferred that no deduction was made by the appraisers on account of the mortgage. Sliaw, C. J., says : ^ "As against all the world but the mortgagee ; the equity of redemption is an estate, subject only to an incumbrance or lien, and may be conveyed by any of the modes of alienation, subject only to the incumbrance. The incumbrance may be small, and the creditor may choose to disregard it ; or he may have reason to believe that the mortgagee intends to look to other security ; he may prefer an estate in freehold to himself to an auction title from an officer, even at the expense of discharging the incumbrance, or he may intend to contest the validity or the amount of the mortgage. The other mode, that of a sale of the equity, is intended for his benefit, but it is a benefit which he may waive." 1 17 Pick. 438. " Ibid. 440. CH. XXXVII,] EXECUTION SALE, ETC. 317 § 25. Where fifty acres of land were conveyed, on condition that the grantee shoiikl pay a mortgage made by the grantor on ten acres and on other land of the grantor ; held, in ex- tending an exccntion against the grantee on the fifty acres, the appraisers might deduct from their value the whole mort- gage debt, though such deduction exceeded the value of the ten acres. ^ § 2G. In extending an execution upon mortgaged land, ap- praisers may deduct all the interest which the judgment debtor is liable to pay on the mortgage debt, though a part of it has been paid to the mortgagee by a third person, at the request of the judgment debtor's assignees under the in- solvent law, but not at the request or with the assent of the debtor.2 §27. In 1830, Woodbury mortgaged to Chase a tract of land containing fifty acres, embracing the lands afterwards, in 1838, conveyed to Holbrook, containing about ten acres. Oc- tober 4, 1830, Holbrook conveyed this portion to Brown, one of the plaintiffs, but the deed was not recorded till April, 1840, before which time the premises were attached by the defend- ants, and afterwards taken on execution and set off to them in satisfaction thereof. In 1842, Chase assigned her mortgage to the defendants. By the levy of the execution, the premises were estimated at $7300, from which was deducted $1041.17, the whole amount of tlie Chase mortgage, and $124 for an in- cumbrance upon a certain water privilege. The plaintiffs, Brown, and the others claiming under him, bring a bill in equity, praying to redeem the Chase mortgage upon payment of the amount due thereon, and denying the validity of the levy. Held, the plaintiffs were entitled thus to redeem ; that the levy was void, because the whole amount of the Chase mort- gage was deducted, instead of Holl)rook's proportional part, upon an estimate of its relative value, as compared with the remaining forty acres.^ § 27 a. The execution debtor, or those who claim under him, cannot object to a levy upon his equity of redemption, on the 1 Jcnks V. Ward, 4 Met. 404. ' Brown v. Worcester Bank, 8 Met. 2 Ibid. 47. 318 THE LAW OF MORTGAGES. [CH. XXXVII. ground that the mortgage debt was stated in the oflficer's return at less than the true amount ; this error not operating an injury to the debtor, but to the creditor.^ § 28. In the case of Forster v. Mellen ^ it was held, that, where the estate of a mortgagor has been attached upon the writ, the mode of levying an execution upon the property is to be determined by its situation at the time of such attachment ; and if at that time the mortgage was extinguished, though before the levy a new one has been made, a levy as upon an equity of redemption is void, (a) But in the later case of Freeman v. McGaw^ it was held, that, as an attachment merely fixes a lien on the property, without transferring the title or affecting the nature of the estate ; " the mode of levy, the act by which a title is to be transferred, it would seem, must be determined by the nature of the debtor's title at the time of the levy, and not at the time of the attachment. The equity of redemption being in fact gone, it would be absurd to pursue a mode solely applicable to a subsisting equitable estate, which no longer exists." These remarks were made by the Court without reference to any statutory provision ; but it was further considered, that the case was provided for by an express stat- ute. (5) In a very late case it is held, that a levy as upon an equity of redemption after payment of the mortgage is void, though neither the creditor nor officer had notice of such pay- ment.^ § 29. In Maine it has been held, that the sale of an equity of redemption is void, if the land was unincumbered at the time of service of the execution." The levy should be as upon an unincumbered estate.^ (c) 1 Slocum V. Catlin, 22 Verm. 137. * Grover v. Flye, 5 Allen, 543. 2 10 Mass. 421. Ace. Tufts v. Hayes, & Pillsbury ;;. Smyth, 25 Maine, 427. 11 Fost. 138. 6 Jewett v. Whitney, 43 Maine, 242. 8 15 Pick. 83, 84. (a) After mortgaged land has been (c) In the same State, by a late stat- taken on execution, and notice of a ute, the right in equity of redeeming sale given by the sheriff, payment and lands mortgaged, and the right of re- discharge of the mortgage will not de- deeming such right or equity of redemp- feat a subsequent sale. Capen v. Doty, tion after it is sold on execution, may 13 Allen, 262. be .attached like tangible property. {h) See Mass. Eev. Stat. 650. Also Rev. Stat, of Maine, p. 506. Gen. Stats. CH. XXXVII.] EXECUTION SALE, ETC. 319 § 30. Ill another case it is held, that the question, whether an execution shall be levied, as upon an equity of redemption, or extended by appraisement of the land, depends upon the state of the title at the time of seizure. The subsequent pro- ceedings relate back to that time. A discharge of the mortgage, subsequent to the seizure of the equity, and prior to the ap- pointed day of sale, does not take away the right to sell the equity.^ § 31. In the same State, where land is attached, and there proves to be an unrecorded mortgage upon it, there must be a levy on the fee, not a sale of the equity, in order to prevail over the mortgage. ^ § 31 a. The levy of an execution by extent, upon an equity of redemption attached, passes the title which tlie debtor had at the time of attachment,^ § 31 b. The purchaser of an equity of redemption, sold on execution, which had been attached on the writ, takes a right of immediate possession, which enables him to maintain tres- pass qiiare clausum against a party claiming under a convey- ance made by the party since the attachment.* § 31 c. In such case, the estate passes to the purchaser from the day of the sale, although the officer's deed be not made on that day, if it be made so soon afterward as to form part of the same transaction.^ § 32. In Kentucky, if there is a sale of an equity of redemp- tion, when the mortgage debt has been paid, no title passes by such sale.*^ § 33. In Georgia it is held, that, where a mortgage upon land taken on execution is on record at the time of the judg- ment, only the equity of redemption can be taken. Hence the proceeds of sale go to the creditor, not to the mortgagee.'^ § 34. A mortgage made to defraud creditors is as to them void, and creates no equity of redemption liable to be taken on execution, (a) Such a mortgage having been made, a 1 Bagley v. Bailey, 4 Shepl. 151. ^ Dougherty v. Linthicura, 8 Dana, 2 Nason v. Grant, 8 Shepl. 160. 194. 3 Abbott y. Sturtevant, 30 Maine, 40. "^ Jewitt i-. McGowen, R. M. Charl. < Ibid. 5 Ibid. 391. [a) In Massachusetts, the execution cannot contest the mortgage, or main- purchaser of an equity of redemption tain a bill in equity to set aside a fore- 320 THE LAW OF MORTGAGES. [CH. XXXVII. creditor of the mortgagor attached his right of redemption ; pending which attachment, another creditor extended an exe- cution upon the land, as unincumbered property. The equity of redemption was afterwards sold on execution, in completion of the attachment, to an innocent purchaser. The levying creditor brings a suit for the land against the execution pur- chaser. Held, the action sliould be maintained, the execution sale being void, because no equity of redemption was created by the mortgage. If the defendant had claimed by a direct purchase from the mortgagor, he would have taken the land free of incumbrance, as an innocent purchaser. But, claiming by a statute title, he must prove every thing necessary to con- stitute such title. When the statute authorizes the sale of an equity of redemption, it contemplates a valid mortgage. More- over, a creditor may levy upon the land of his debtor, and thereby acquire as good title as the latter had therein ; and, in regard to his creditors, a fraudulent grantor has a perfect title. Nor can one creditor, by attaching an equity of redemption, and thereby recognizing the mortgage as valid, deprive others of the right to treat it as void, by seizing the land itself.^ § 35. In the case of Russell v. Dudley ,2 after a mortgage by the defendant, a creditor attached all his " right in equity " to redeem the land; and, upon an execution subsequently taken out in the suit, said " right in equity " was advertised, sold, and duly conveyed to the demandant, who bought for the creditor's benefit. Previous to the sale, but after the seizure on execution, the mortgagees took possession for the purpose of foreclosure, and leased to the defendant for one year. At the trial, the demandant alleged that the mortgage was made to defraud creditors, and the question was raised, whether evidence of this allegation was competent. Held, such evi- dence was not competent, and that the action could not be maintained. Shaw, C. J., says : ^ "It was at the option of the creditor to treat the mortgage as an invalid conveyance, and 1 BuUard v. Hinkley, 6 Greenl. 289. 2 3 Met. 147. See Perry v. Hayward, 12 Cush. 344 ; 3 Ibid. 148. Verry v. Kichardson, 5 Allen, 107. closure, as fraudulent, after more than for the purpose of foreclosure was duly three years from the time when a certi- recorded. Taylor v. Dean, 7 Allen, ficate of taking peaceable possession 261. en. XXXVII.] EXECUTION SALE, ETC. 321 set off the estate in fee, at an a])i)raisement, wholly regardless of the mortgage ; or to treat the mortgage as valid and effec- tual, and sell the right of redemption at auction. The pro- ceeds of the sale might he sufficient to satisfy his deht, without disturbing the mortgage. But he could not do both. |Hc could not treat the mortgage as subsisting, so as to warrant a sale at auction under the statute, and then, when he had taken his deed, treat the mortgage as a nullity, and claim the estate in fee. It is true, the attachment and sale are not merely of " a right to redeem," but of the estate of the debtor, subject to the mortgage. But the demandant claims under a statute title, an officer's deed, by which notliing passes, unless all the circumstances concur in establishing the case on which the power is given. If there was no mortgage, there was no equity of redemption ; the creditor had no right to cause the estate to be sold at auction ; and the officer's deed was inoper- ative and void. The creditor, by treating it as a subsisting mortgage, is afterwards estopped to deny the existence of such mortgage ; and the demandant, purchasing for the use of the creditor, and taking with a knowledge of all the facts, is like- wise estopped. But regarding the demandant as a hoiid fide purchaser, without notice, what are his rights ? He purchased the premises at a sheriff's sale, as an equity of redemption, or as an estate subject to some mortgage ; otherwise the officer had no power to sell, and nothing passed by his deed. But there was no other mortgage, except the mortgage now in question. He therefore took the estate subject to that mort- gage, and is as much estopped to contest it, as if it had been recited in his deed. And this result would be as conformable to equity as to law. The purcliase-money must be understood to be the value of the estate, over and above the sum for which it is mortgaged. If (the purchaser) could afterwards avoid that mortgage and hold the whole estate, he might get it fur a very inadequate consideration ; he would get what the officer never intended to sell, to the manifest injury of the debtor, and perhaps of the creditor. It would l)e injurious to the debtor, by taking the whole of his estate by force of a legal proceed- ing, intended to convey to him the balance of the value of the estate, after paying the mortgage debt, leaving the debtor still VOL. II. 21 322 THE LAW OF MORTGAGES. [CH. XXXVII. personally liable for that debt. It would be injurious to the creditor, if" the actual proceeds of the sale should prove in- sufficieut to pay the whole amount of his execution ; as it would be giving to the purchaser the power of defeating the intermediate mortgage, which it is the privilege of the creditor alone to impeach, for his own benefit ; and which, if set aside, would leave the whole value of the estate to be applied to the satisfaction of the execution." § 36. In the case of Yan Deusen v. Frink,^ a second mort- gagee took an assignment of the first mortgage, and procured from the mortgagor a release of the equity of redemption. Subsequently, a creditor of the mortgagor levied on the equity of redemption, and purchased it at the sheriff's sale, and now brings a bill in equity to redeem the second mortgage. Held, the plaintiff might prove that the second mortgage and the release were fraudulent and void as against him, by showing fraud practised on the mortgagor by the defendant, though the mortgagor himself had made no attempt to avoid them. Shaw, C. J., remarks: 2 "The plaintiff combined in himself both characters, that of a creditor of Deming and that of a purchaser of the equity of redemption. In the former, he had full power to set aside and avoid all mortgages, conveyances, and incumbrances of every description, made by Deming, through fraud and covin, to delay and defraud the creditors of Deming. In the latter character, as purchaser, he had by force of the statutes all the power and authority to redeem, which Doming himself had before the sale." § 36 a. Where an equity of redemption is attached, as hav- ing been conveyed in fraud of creditors ; the execution pur- chaser may maintain a bill in equity to avoid the conveyance and redeem the mortgage.^ § 36 5. In case of a fraudulent m'ortgage and another sub- sequent valid mortgage, a creditor of the mortgagor may levy an execution upon the property, although the mortgagor has conveyed his right of redeeming both mortgages. The exe- cution being less in amount than the second mortgage, that mortgage is valid in reference to the grantee of the equity.^ 1 15 Pick. 449. » Gerrish v. Mace, 9 Gray, 235. 2 Ibid. 458. * Verry v. Richardson, 5 Allen, 107. CH. XXXVII.] EXECUTION SALE, ETC. 323 § 37. In Maine, where land lying within adjoining towns is included in the same mortgage, an officer may lawfully adver- tise, sell, and convey the right of redeeming that in one of the towns only ; and thereby give to the purchaser the right to redeem the mortgage by an entire performance of tlie con- dition.^ § 38. In Vermont, the levy of an execution upon a portion of mortgaged premises, described by metes and bounds, is void. 2 § 39. In the same State, if an execution is levied upon mortgaged premises, and the debt exceeds the aj)prai3cd value of the equity of redemption ; the execution may still be levied, for a portion of the debt, upon an undivided part of the debt- or's interest. His whole interest need not be taken. '^ (a) § 40. In Massachusetts, a deed of an equity of redemption, given by an officer to a purchaser thereof at an execution sale, pursuant to the Revised Statutes, ch. 73, § 38, passes all the debtor's right, title, and interest in the premises as against a subsequent purchaser or attaching creditor having actual notice, though such deed be not recorded within three months.* But, in general, registration is necessary to the ^ Franklin, &c. v. Blossom, 10 Shepl. 646. 2 Swift u. Dean, 11 Verm. 323. 8 Kimball v. Smitli, 21 Verm. -149. * Houghton V. Bartholomew, 10 Met. 138. (n) In Maine, a mortgagee, who has obtained execution against the mort- gagor upon the mortgage note, may levy upon a part of the premises, and his title becomes absolute if the mortgagor neglects for a year to redeem. Tiie residue, however, may be redeemed, and the mortgagee must account for the rents and profits of the wliote until the levy, and of the residue until possession is surrendered. Crooker v. Frazier, 52 Maine, 405. The following observations illus- trate the condition of the title to an estate, where the right of redemption has been sold on execution, with refer- ence to the respective rights of the mortgagee, mortgagor, and purchaser. In White V. Whitney (3 Met. 87), Shaw, C. J., remarks : " Suppose A. holding an estate, protected by cove- nants of seisin and warranty against all incumbrances, but subject in fact to an outstanding mortgage or to some de- fect of title, should make a mortgage to B. ; afterwards his equit}' of redemp- tion is attached by C, his creditor, .ind in due time and in legal form this equity of redemption is sold at auction on execution, and convo3ed to I), by an officer's deed ; would the benefit of the covenants, under which A. held, pass by his mortgage to B , or by the sherifl's deed to D. ? We think this question is answered by saying, to both according to their respective rights in 324 THE LAW OF MORTGAGES. [CH. XXXVII. validity of the levy, even though the property was seized be- fore the statute requiring such levy took effect.^ 1 De Witt V. Harvey, 4 Gray, 486. the estate. It is incident to tlie estate, and inseparably annexed to it. B., the mortgagee, being first in time, would be first in right, so far as necessary to his security as mortgagee ; he is deemed seized of the estate, and of course to the same extent that he holds the estate, he is the assignee of tiie covenant. Shoiild B. enter, to hold under his mortgage, and actually fore- close, he would hold the whole benefit of the covenant ; but if D. should pay off B.'s mortgage, as he would have a right to do, this would extinguish the mortgage ; he would hold the whole estate, and of course the whole interest in the covenant, as assignee in law. In such case, if suit were to be brought on the covenant before either foreclosure or redemption, there might be a ques- tion, who would have a right to sue, or what damages the plaintiff would have a right to recover. It may be added, by way of further illustration, that the purchaser at the sheriff's sale takes a defeasible estate only ; the debtor has a right to redeem within a year, and reinvest liimself with the estate ; and should he do so, he would be reinstated in his right to the covenant of warranty attending it." An execution purchaser cannot enter on the premises as against the mortga- gee or his assignee. Dadmun v. Lam- son, 9 Allen, 85. He may call for the legal estate on paying the mortgage debt. Shoffner v. Fogleman, 1 Win. (No. 2) Eq. 12. Where a person who had a contract to purchase land mortgaged the land, and it was afterwards sold under execu- tions against him, one of which was older than the mortgage ; on a bill against the original vendor, who had been paid, the mortgagor, and the pur- chaser at sheriff's sale, who was in possession, held, the mortgagee was entitled to have the land sold to satisfy the mortgage. Iloddy v. Elam, 12 Rich. Eq. 343. A sale of mortgaged land, under execution at law, for a part of the mortgage debt, by the direction, or with tlie knowledge and consent of the mortgagee, and his reception of the proceeds of sale, do not discharge the mortgage, or estop the mortgagee, or a subsequent purchaser at the mortgage sale, with notice of the facts, from re- covering the land in an action at law. Barker v. Bell, 37 Ala. 354. A junior moi-tgagee, on notice to the sheriff of the pendency of his fore- closure suit, and of his claim, &c., is entitled, as against pending attach- ments by other creditors of the mort- gagor, to have applied on his debt sur- plus proceeds in the sheriff's hands of the foreclosure sale of the senior mort- gage. West V. Shryer, 29 Ind. 624. A mortgagee obtained judgment on his note, and, at the execution sale, purchased the mortgaged premises for the full amount of his debt, and after- wards conveyed them to a party, to whom he at the same time assigned the mortgage. Held, that A. could not foreclose as against B. a second mort- gagee, whose lien was subsequent to the recording of the first mortgage, but prior to the judgiuent, or compel B. to redeem from himself State v. Lake, 17 Iowa, 215. A mortgagee foreclosed his mort- gage, and bought the premises at the s.ale, and a creditor of the mortgagor having a judgment subsequent to the mortgage, and who was not made party to the foreclosure, afterwards advertised the same premises for sale en. XXXVII.] EXECUTION .SALE, ETC. 325 § 41. Pending a suit, in wliich an equity of redemption was attached, the same right was attached in a suit brought in the name of one person for the benefit of another, who afterwards went into insolvency. The first attacliing creditor recovered judgment, and perfected his attachment by a sale on exe- cution. The officer gave a deed of the equity, but it was not recorded witliin three montlis. Judgment was afterwards re- covered in the second suit, and the equity again sold on exe- cution, and conveyed by the officer to the assignee of the second judgment creditor. Held, if before the second levy and sale, and before the appointment of the purchaser as as- signee, the insolvent had actual knowledge of the first levy, sale, and deed, and attachment, or if the assignee had stich knowledge after his appointment, and before the second levy and sale ; the title of the first purchaser should prevail over that of the second. ^ § 42. A statute of Maine provided, that the officer's deed of an equity of redemption, sold on execution, should be as effectual to convey it, as if made by the debtor. Held, such deed need not be recorded, in order to pass a title. The Court say : " When the officer, having previously taken the prelimi- nary steps, sold the equity of redemption, and made, executed, acknowledged, and delivered a deed to the highest bidder ; the title of the execution debtor is thereby divested. Pul)licity of the seizure and sale is by law required to be given in the full- est and most effectual manner. Unless it is redeemed within the time limited, or the sale is abandoned, the same property cannot be again seized by another creditor. The return of the officer on the execution is additional notice to .the public of his proceedings. The statute does not make it essential to the validity of the sale, that the officer's deed should be recorded. 1 Houghton V. Bartliolomew, 10 Met. 138. under his judpfmcnt. Held, the pur- entitled to his right of sale, that he chaser under tlie foreclosure was not en- niiglit exercise tlie statutory or equita- titled to an injunction restraining a sale ble right of redemption, and might of any interest in the land held by the realize any other advantage accruing judgment debtor, at the rendition of from a sale. Alexander v. Greenwood, judgment or the levy of the execu- 24 Cal. 505. tion; that the judgment creditor was 326 THE LAW OP MORTGAGES. [CH. XXXVII. The cigliteenth section provides (as above). That may be considered as declaring, tliat these proceedings operate a stat- ute transfer of his title. If tlie registry of the deed is neces- sary to put the estate out of the reach of other creditors, or of a subsequent purchaser, it is deducible by construction. It might have the effect to give more perfect notice, if tlie officer's deed should be required to be recorded. But this is a matter which belongs to the legislative department." ^ § 43. Various questions arise, as to the defence which may be made by the execution debtor against a suit for the land founded upon the levy of the execution. It has been held, — although in that case the property levied on was not itself an equity of redemption, and therefore the decision is inappli- cable to the present subject except by analogy, — tliat where lands have been sold on execution, and the purchaser brings ejectment against the judgment debtor, the defendant cannot set up in defence an outstanding mortgage given by himself, before the judgment lien attached to the land. The Court say : " A mortgagor cannot be permitted to disown his legal rights, to the prejudice of his creditors, or to protect himself in the possession and enjoyment of his estate, by admitting the existence of rights in third persons, who do not appear to set them up, which rights cannot be affected directly or indirectly by the success or failure of his defence. The property in the possession of the plaintiff will be as liable, and as sufficient to satisfy the debt, as it will be if it remains with the defend- ant. If the mortgaged premises be of greater value than the debt for wliich they are pledged, the plaintiff, by his purchase from the sheriff, is entitled to the difference." ^ § 44. And the same estoppel applies to the mortgagee, who has been permitted to come in and defend the suit.^ The Court say : ^ "It seems to us to stand on the same reason with the other cases, in which it is held, that the debtor in execu- tion cannot set up a want of title in himself. As he has had the benefit of the sale in the payment of his debts, he ought 1 Eackleff v. Norton, 1 Appl. 274, Ely v. McGuire, ib. 330 ; Davis v. Ev- 277. ans, 5 Ired. 525. 2 Phelps V. Butler, 2 Ohio, 331, 332 ; 3 Davis v. Evans, 5 Ired. 525. * Ibid. 582, 533. CH. XXXVII.] EXECUTION SALE, ETC. 327 not to say that he had nothing in the premises ; and ho can- not, with truth, say so, as he had, at least, the possession and enjoyment of the land, and those he ought to give up ; and to recover tlicm is the object of the ejectment. The same prin- ciple applies equally to a case in which the debtor has only an equitable interest. The Act of 1812 authorized the sale of an equity of redemjjtion under a fieri facias. This act makes the equity of redemption, when sold under execution, a legal interest, to the extent, at least, of enforcing it by the recovery of possession from tlic mortgagor himself." § 45. So it has been held, that a tenant of the mortgagor, or a purchaser from him by executory contract, cannot dispute the title of the execution purchaser.^ § 46. More especially, where the purchaser of an equity of redemption, sold on execution, had tendered to the holder of the mortgage the amount due upon it ; held, he had acquired a seisin, sufficient to sustain an action for the land against the mortgagor.^ § 46 a. A., having attached B.'s right to redeem certain real estate, afterwards obtained judgment, sold said right on exe- cution, became himself the purchaser, and subsequently sued out his writ of entry against B. to recover the premises. Held, that B. could not defend himself against the demandant's title under the sheriff's deed, by showing that he was in as tenant of a third person, who, after the commencement of the real action, had acquired the mortgagee's title, and taken possession under the mortgage.^ § 46 h. Where a plaintiff in execution levied it on an equity of redemption, he is estopped to deny that the mortgage was hond fide and valid, as between mortgagor and mortgagee. But where such plaintiff afterwards bought the absolute title to the mortgaged property at a sheriff's sale, he may show that the mortgage was void as to the subsequent judgment creditor.* § 47. In Kentucky, the execution purchaser of an equity of redemption is entitled to possession as against the mortgagor, 1 Dougherty v. Liiitliicum, 8 Dana, ^ Goodall v. Rowell, 15 N. H. 572. 194. ■» McWhorter v. liuling, 3 Dana, 2 Porter v. Millet, 9 Mass. 101. 348. 328 THE LAW OF MORTGAGES. [CH. XXXVII. but cannot «iaintain ejectment for the land till after the expi- ration of a year, during which the mortgagor has a right to redeem.^ § 48. In Massachusetts, where an equity of redemption is sold on execution, under the Rev. Sts, ch. 73, § 37, the time limited for a bill to redeem such equity, under section 44, is one year from the time of sale.^ § 49. In computing the time allowed by St. 1815, ch. 137, § 1, for redeeming such right, which was " within one year next after the time of executing by the officer to the purchaser the deed thereof," the day of executing the deed is to be excluded.^ § 50. If the mortgagor does not within a year redeem his equity of redemption, sold on execution, his whole interest is lost, and he cannot redeem the mortgage, though the purchaser does not redeem.* (a) § 51. Under the Revised Statutes (ch. 73, §§ 44, 46), if the purchaser refuse to release the equity, upon a tender by the debtor or his assignee of the sum due him therefor, a writ of entry lies to recover the equity.^ § 52. A subsequent demand for the money made by the pur- chaser, but after dark, is unreasonable, and does not avoid the tender.^ § 53. An equity of redemption being sold on execution, the purchaser paid the mortgage ; and the mortgagee cancelled the note and mortgage, indorsed a discharge on the latter, and delivered them to the purchaser. The Rev. Sts. of Massachu- setts provide (ch. 73, §§ 34, 35), that if an execution cred- itor shall pay the mortgage debt, the judgment debtor may redeem from him, as he might have done from the mortgagee, and, in case he does not, the creditor shall hold as assignee of the mortgage, and free from redemption, though the debtor redeem or offer to redeem the right taken in execution. Held, under this provision, the purchaser became an equitable as- signee of the mortgage.^ 1 Abel V. Wilder, 7 B. Mon. 530. 5 Hooker v. Hudson, 19 Pick. 467. 2 Houghton V. Field, 2 Cush. 141. 6 Tucker v. Buffum, 16 Pick. 46. 8 Bigelow V. Willson, 1 Pick. 485. 7 Gleason v. Dyke, 22 Pick. 390. * IngersoU v. Sawyer, 2 Pick. 276. (a) Supra, § 22, n. CH. XXXVII.] EXECUTION SALE, ETC. 329 § 53 a. Where the purchaser of a right in equity, sold on execution, takes an assignment of the mortgage within a year from the sale, the mortgage does not merge ; tlie dcljtor still having a remaining right, and the mortgagee, therefore, not having the whole title. ^ § 53 h. On a bill to redeem an equity sold on execution, the defendant must account for he rents and profits received by liim, though, before suit brought, the plaintitf tendered him the purchase-money and interest, not deducting the rents and profits.'-^ The defendant having after the tender occupied the land under a lease from the mortgagee, at a low rent, and after- wards purchased the mortgage ; held, he should account for the_^ fair annual value.^ So the plaintiff must account for the interest, if any, received by him on the money tendered to, and refused by, the defendant.'* The defendant was allowed a com- mission of five per cent on rents collected by him.^ So where the defendant, the execution ])urchaser, being in possession, took a lease from the mortgagee, made repairs and improve- ments, and afterwards bought the mortgage ; held, he should be allowed the cost of the repairs and improvements.^ § 54. In Maine, where the execution purchaser redeems the mortgage, and within tlie year the mortgagor redeems the equity, the latter may redeem the mortgage from the former, as he might from the mortgagee.''' § 55. If a judgment creditor extend his execution on land mortgaged for the same debt, and the debtor fail to redeem for a year after the extent, the creditor acquires an absolute es- tate, notwithstanding the mortgage.^ § 56. A statute of New York provided, that, wiiere land sub- ject to mortgage is sold on execution against the mortgagor, the mortgagee may redeem within fifteen months, by paying the amount of the bid and seven per cent interest. Held, the act did not apply to the assi^iee of a mortgage, executed by a purchaser from the execution defendant.^ § 57. "Where an equity of redemption is attached, and after- 1 Tuttle I'. Brown, 11 Pick. rA\. ' Rev. St. (Maine), 557. 2 Tucker v. Buffum, 16 Pick. 46. » Porter v. King, 1 Greenl. 297. 8 Ibid. * Ibid. 9 Hodge v. Gallup, 3 Deiiio, 527. 6 Ibid. 6 Ibid. 330 THE LAW OF MORTGAGES. [CH. XXXVII. wards sold on execution, and between such attaclnnent and sale the mortgagor has made a second mortgage, tlie second mortgagee or his assignee may redeem from the execution pur- chaser.^ Wilde, J., remarks : ^ " The equity of redemption certainly passed by the second mortgage ; and by the assign- ment also, unless the sheriff's sale to the tenant prevented. The attachment did not change the estate of the debtor, or take away his power of alienation, and the creditor acquired no property thereby ; he had only a lien, and the debtor might legally convey the property subject to the lien. This lien the purchaser might discharge by payment of the debt before exe- cution executed, or he might afterwards redeem the estate, if it were by law redeemable." He proceeds to remark, that the attachment, being a mere lien, did not so far divest the mort- gagor's title, as to leave him no interest to convey ; tliat, although the statute does not expressly provide for the redemp- tion of an equity sold on execution, yet, if construed literally, heii's and executors would be debarred, as well as assignees ; and that a right of this nature, being a possibility coupled with an interest, was assignable, especially in equity. § 58. The assignee of an equity of redemption has the same right as the execution debtor to redeem real estate sold on execution.^ § 59. The right to redeem an equity of redemption, sold on execution, is validly assigned in equity by a common quitclaim deed, which remises, releases, and quitclaims the party's right and interest in and to the mortgaged premises, habendum to the grantee, his heirs and assigns.^ § 60. Where rights in equity, of redeeming distinct parcels of land from several mortgages, are sold upon one execution, they ought to be sold separately, and not for a gross sum ; for the debtor has a right to redeem one without redeeming others. But a third person cannot object to a joint sale.^ § 61. Immediately after a sale, the purchaser brought an action against the mortgagor for the land. Afterwards, within a year, the defendant tendered to the plaintiff the purchase- 1 Bigelow V, WiUson, 1 Pick. 485. * Tucker v. Buffum, 16 Pick. 46. 2 Ibid. 492. 5 Fletcher v. Stone, 3 Pick. 250. 3 Hepburn v. Kerr, 9 Humph. 725. CH. XXXVII.] EXECUTION SALE, ETC. 331 money and interest, but not the costs of suit. Ileld, no bar to tlic action ; but that on payment of the money and costs the Court would stay proceedings.^ § 62. Where an equity of redemption is sold on execution, if the mortgagor transfers his title, and the land is redeemed from the execution purchaser, the mortgagor cannot maintain an action against the latter for the mesne profits received by him. The right of action is in the mortgagor's assignee.^ § 63. Tlie lien, created by the attachment of an equity of redemption, may extend beyond the amount of the judgment, and cover the whole sum for which the equity is sold on exe- cution. Thus wlicre the mortgagor, after such attachment, conveys his interest, and the equity is subsequently sold on execution for more than the amount of the execution, the sur- plus belonging, not o the purchaser from the mortgagor, but the mortgagor himself, such purchaser cannot redeem, without paying the whole sum paid to the sheriff.^ § 64. It is held in Massachusetts, that, where an equity of redemption is taken on execution, the whole estate of the debtor is taken from him. While a mortgagor is considered as ow)ie?', against all but the mortgagee, a debtor, after such levy, has not strictly any estate or interest in the land. Pie is not a freeholder. He has only a j^ossilnUt/j or right to an estate, on payment of a certain sum of money. The law pre- sumes that he has received the full value of his estate ; and the right of redemption still reserved to him is a mere personal privilege to keep his own land, if he does not wish to part with it at its full value. He is under no obligation to redeem. There is no reciprocity between him and the creditor. The creditor cannot demand the money, but is merely bound to convey the land, on receiving payment in a certain time.'* Upon these grounds, the right in question was held not liable to be again taken upon execution, (a) The Court in their opinion remark, that the legislature might have made it thus liable, but have not done so, probably because it was consid- 1 Jewott V. Fclker, 2 Greenl. 339. ■• Kelly v. Beers, 12 Mass. 389, 390 2 Mason v. Davis, 11 N. H. 383. Barker v. Parker, 4 Pick. 505. 3 Gilbert v. Merrill, 8 Greenl. 295. (a) Otherwise in Maine. Maine llcv. Sts. 390. 332 THE LAW OF MORTGAGES. [CH. XXXVII. ered of no value. Real estate mortgaged is made subject to execution ; because land is usually mortgaged for less tlian its value, and the right of redemption, therefore, is a valuable interest. Nor can it be said that the debtor, after sucli sale, still owns his former right of redemption, but subject to a new lien by the purchaser. Tliis is not the language of the statutes. His whole estate is taken from him. His remaining right is like a right of pre-emption, as if the purchaser had covenanted to convey to him at a certain price, paid in a cer- tain time.^ (tt) § 65. An equity having been sold on execution, the same day another sheriff sold the same right upon another execution to another purchaser, and gave him a deed of it. Two days afterwards, the same right was sold and conveyed upon a third execution to still another purchaser, who brings an action to recover tlie land against the mortgagor. Held, no title had vested in the demandant, and the suit could not be main- tained. ^ § QQ. But, after an execution sale of an equity of redemp- tion, the mortgagor has a remaining interest which he may mortgage anew, and his right to redeem the second mortgage may be assigned, attached, or taken on execution.^ Wilde, J., remarks : ^ " There is nothing in this position that we can per- ceive, at all inconsistent with the principles laid down in the case of Kelly and ux. v. Beers. In that case, the Court con- sidered the legal rights of the parties, and it cannot be contro- verted, that by the first sale of the equity, the mortgagor's whole legal estate passed ; but he had a right to redeem the 1 Kelly V. Beers, 12 Mass. 389, 390. 3 Reed v. Bigelow, 5 Pick. 281. 2 Ibid. i Ibid. 283, 284. (a) Upon this ground, the acts, upon sought to be substituted for certain the land, of a mortgagor, whose equity mortgagees, and it appeared that the has been sold on execution, may be property covered by the mortgages had treated as trespasses. Smith v. Sweet- been sold under them for its full value, ser, 32 Maine, 216. And, on the other it was held, that there was nothing re- hand, before redemption, whether he maining of the mortgaged property, be in possession or not, he cannot main- which could be subjected to the cred- tain trespass quare cJausum against a itors of the mortgagor. Bank of Ken- purchaser, for acts done upon the land, tucky v. Milton, 12 B. Mon. 340. Ibid. Where a creditor of a mortgagor CH. XXXVII.] EXECUTION SALE, ETC. 333 equity, and when lie assigns tins right by way of mortgage, he has a right to redeem it back again by performance of the con- dition. This new right created by the second mortgage, is, we think, attachable, and may be sold on execution. However such a right may be considered in a court of law, in equity it is considered as an interest in the land. The right of redeem- ing the first mortgage, and that of redeeming the second, were distinct rights, and the sale of one was not inconsistent with the sale of the other ; for although the whole legal estate passed by the first sale, an equitable interest remained, which might be mortgaged, and being mortgaged, was subject to the right of redemption ; and there seems no good reason why such a right, when it is deemed valuable, may not be taken in execution for the benefit of creditors." § 66 a. The execution sale of an equity of redemption passes only the debtor's interest ; and, if a first mortgagee become the purchaser, the second mortgage is not affected thereby.^ § 66 h. In Connecticut it is held, that an cqnity of redemp- tion is indivisible, and, though it may be attached and set off in satisfaction of a debt, cannot be apportioned among creditors.^ § 67. Where the same equity of redemption is simultane- ously attached by two creditors, both executions may be levied upon it, and each creditor will be entitled to a moiety of the proceeds, without regard to the relative amount of the debts. They hold, not in shares or proportion, but^^t;?' mi et per tout. But, as the attachment is a mere lien or security, if the moiety which either can hold is more than suflficient to satisfy his debt, the surplus will go to the other.^ (a) § 68. Where an equity of redemption is successively attached, by different creditors, a sale on execution by the second, before the first has recovered judgment, is void as against all the 1 Crow V. Tiiislcy, 6 Dana, 402. Durant v. Johnson, 19 Pick. 544 ; Perry 2 Franklin v. Gorliam, 2 Day, 142. v. Adams, 3 Met. 51. 3 Sigourney v. Eaton, 14 Pick. 414 ; (a) An equity of redemption cannot Chapman v. Androscoggin, 64 Maine, be sold upon two or more executions IGO. jointly in favor of different creditors. 334 THE LAW OF MORTGAGES. [CH. XXXVII. others ; and the third acquires the rights of the second. Such was the law of Massachusetts prior to the provisions of the Revised Statutes, ch. 99, §§ 34, 35.i (a) § 69. An officer seized an equity of redemption on two ex- ecutions, sold it on one, which he satisfied with a part of the proceeds, and applied the balance to the other. Held, the levies were legal.^ § 70. Personal property and an equity of redeoaption having been attached in the same suit, the debtor assigned the latter, and it was subsequently attached in another action. The per- sonal property was sold on mesne process, judgments were recovered, and executions in both suits delivered to the officer. Held, he was bound to apply the proceeds of the personal property to the execution in the first suit, in relief of the assignee.^ § 71. If an equity of redemption is taken on several execu- tions by different officers, and the proceeds of sale are more than sufficient to satisfy the executions in the hands of the officer selling, he is bound to pay the surplus to the officer holding the other executions,^ § 72. If one officer commence the levy of one execution upon an equity of redemption, and on the same day another officer commence an extent on the land, no time of day being fixed by either, the Court will not construe the extent as prior to the levy.''' § 73. If after attachment of an equity of redemption a sec- ond mortgage is made and duly recorded, and then another attachment made, and executions in both suits delivered to an officer, and the equity sold upon the first ; the officer is not 1 Pease v. Bancroft, 5 Met. 90. •* Denny v. Hamilton, 16 Mass. 402. 2 Bacon v. Leonard, 4 Pick. 277. 5 Bagley v. Bailey, 4 Shepl. 15L 3 Porbush V. Willard, 16 Pick. 42. (a) The statute provides, that, when If the estate is set off or sold in part property is seized on execution, and the under the prior attachment, or if that further service of the execution sus- is dissolved, the estate, or such part as pended by a prior attachment, the remains unsold, shall continue bound estate shall remain bound by such for thirty days by the seizure ; and the seizure, until set off or sold, in whole service may be completed, though the or in part, under the prior attachment, return day is passed, or until that attachment is dissolved. CH. XXXVII.] ' EXECUTION SALE, ETC. 335 bound to scarcli the records for an intermediate conveyance, but may apjjly tlic balance to satisfy tlie second execution, if he is not notified of the second mortgage.^ § 74. Notice of his mortgage l)y the second mortgagee, and that it is recorded, without producing the evidence of his title, will not bind the officer to pay him the balance, but will bind him to retain the money a reasonable time, in order that such evidence may be produced. Reasonable time is not allowed, if the money is paid over on the second execution upon the day of sale.^ § 75. A sheriff's deed of an equity, sold on execution, cov- enants only for the regularity of his proceedings. For breach of such covenant, the measure of damages is the consideration paid, with interest. But if the purchaser holds a second exe- cution, in satisfaction of which the surplus proceeds are ap- plied, the measure of damages is the value of the equity, not the sum bid and stated in the deed.^ § 76. It has been held, that a right in equity to redeem, be- ing a mere incorporeal hereditament^ will pass by an execution sale, though the land have been long in possession of a dis- seisor.^ In an earlier case, or a previous hearing of the same case, it was remarked, that an execution purchaser might maintain a real action for the land against a stranger, unless the latter had disseised the mortgagor, before the sale.° The true principle upon this subject, and one which seems to rec- oncile the apparent contradiction between the former cases, has been settled in a case long subsequent to both of them.'' It is here held, that, if the mortgagor is seised at the time of the execution sale, the sheriff's deed passes the mortgagor's actual seisin, as a deed from the mortgagor would have done ; if he is not seised, then it passes a right of entry, or a seisin in law. The purchaser may enter, and then bring a writ of entry upon his own seisin ; or perhaps, before entry, he might bring an action, founded upon the seisin of the mortgagor, to whose rights he has succeeded, (a) A fortiori^ he may main- 1 Littlefielcl v. Kinibull, 5 Sliepl. 313. * Wellington v. Gale, 13 Mass. 483. 2 Ibid. 5 Ibid. 7 Mass. 139. 3 AVade v. Merwin, 11 Pick. 280. 6 Poignard v. Smith, G Pick. 172. (a) See Mass. Rev. Stat. 463 (also ing of executions upon all rights of Gea. Stats), which provide for the levy- entry, and rights of redeeming lands 33G THE LAW OP MORTGAGES. [CH. XXXVII. tain an action for the land against the mortgagee, after payment or tender of the mortgage debt.^ § 76 a. But a void levy gives the purchaser no riglits as against the mortgagee. § 76 b. Thus, in Partridge v. Gordon, ^ the demandant in a writ of entry claimed title under a deed from one Webb, which it was agreed was a mortgage, the condition of which had been broken. The tenant claimed under judgment creditors, who had extended executions upon the premises, which levies were held to be void. Upon a motion by the tenant for a conditional judgment, the Court remarked : " Where a mortgagee brings his action for possession and not for foreclosure, he need not set forth his deed, but may declare upon his seisin generally. In such case, he is entitled to the absolute judgment against all but the mortgagor, or persons lawfully claiming under him ; and against them also, unless by plea they set forth their in- terest, and pray that the conditional judgment be entered, and then, if the condition be broken, the Court will enter the con- ditional judgment. But the tenant has shown no legal privity with the mortgagee, or in the estate, and has not acquired any right to redeem ; the levy having been declared to be void." § 76 c. Where a bond, payable in two instalments, was secured by two mortgages, the first of which was to secure both instalments, but the second only the first instalment, and the second instalment was paid, and the first mortgage dis- charged ; it was held, that purcliasers, at a sheriff's sale of the land covered by the second mortgage, with notice of the facts above stated, could not be relieved against the prior in- cumbrance, the first mortgage having been released in good faith, and without notice of the subsequent incumbrance.^ § 76 d. If a mortgagee purchase the equity of redemption at an execution sale, and then assign the mortgage, covenanting 1 Porter v. Millet, 9 Mass. 103. ^ Cheeseb rough v. JMillard, 1 John. 2 15 Mass. 486. Ch. 409. mortgaged. Stat. 1798, ch. 76, provided, that such purchaser becomes seised that the sheriff's deed of a right in except as against the mortgagee, and equity should pass tlie title, in the same may maintain an action for the land, manner as a deed executed by the witliout actual entry. Wellington v. debtor himself. Hence it was held, Gale, 7 Mass. 138. CH. XXXVII.] EXECUTION SALE, ETC. 337 that it is still due; the assignment is valid, though he remain in possession. 1 § 76 e. Where the right and title of several defendants to certain premises is sold on execution, and a mortgage creditor of one of them redeems, the deed of the sheriff to him con- veys only the interest of the debtor of the mortgagee in the premises.^ § 77. The execution sale of an equity of redemption will not operate as an ouster of the mortgagee, who has previously entered under his mortgage. Such sale is effectual in passing all the mortgagor's rights ; and an entry for the purpose of seizing and levying upon the equity is no trespass, being con- sistent with the mortgagee's title. But for any subsequent entry, the mortgagee may maintain trespass against the pur- chaser, without a re-entry.^ § 78. The right of redeeming subsequent mortgages may be taken in execution. Thus, the creditor of a mortgagor having attached an equity of redemption, the debtor made another mortgage, after which all his interest in the land was attached by another creditor. The equity first attached was then sold on execution, which was satisfied by a part of the proceeds ; and, before the officer had paid over the surplus, the execution of the second creditor was delivered to him. Held, the surplus belonged to the second mortgagee ; and the second creditor might levy on the right of redeeming the second mortgage.* § 79. Where an equity of redemption was sold on exe- cution, and before the sale a note for the subsequent rent of the premises had been given and assigned to the mortgagee ; held, the purchaser was not entitled to such rent.^ § 80. Where lands levied on are delivered to the defendant at an annual valuation fixed by the inquest ; a mortgagee, holding a prior lien, which is not affected by the levy, cannot claim the fund.^ § 81. In Louisiana, where a sale on execution is conform- able to law, and nothing remains, after satisfying the exe- cution, to discharge subsequent mortgages on the property ; 1 James v. Morey, 2 Cow. 246. * Clark v. Austin, 2 Pick. 628. - Neilson v. Neilson, 5 Barb. 665. 5 Abel v. Wilder, 7 B. Mon. 530. 8 Shepard v. Pratt, 15 Pick. 32. « Bank v. Patterson, 9 Barr, 311. VOL. II. 22 338 THE LAW OF MORTGAGES. [CH. XXXVIT. the sheriff is bound to release, and the recorder of mortgages to erase them, without any order of court as against the holders of such mortgages. Otherwise, where the forms pre- scribed for forced alienations have not been complied with.^ § 82. Where the highest and last bid, made at a judicial sale, is insufficient to discharge a mortgage having preference over the judgment ; there can be no adjudication.^ (a) 1 Passebon v. Prieiir, 1 La. An. 10 ; Tlieard v. Prieur, ib. 16. 2 Fernandez v. Bein, ib. 32. (a) It has been already seen (ch. 14), that, as a general rule, the law does not permit the mortgagee to levy his execution upon tlie equity of redemp- tion, in a suit on the mortgage debt. The following points have been decided in cases where this proceeding seems to have been sanctioned by the courts. In Jackson v. Hull (10 John. 481) it was held, that, if the holder of a bond secured by mortgage recover judgment on the bond, and cause the mortgaged premises to be sold on the execution to one having notice of the existence of the mortgage ; it will be deemed merely a sale of the equity of redemption, not aifecting the lien of the mortgagee. The assignee of a note and mort- gage recovered judgment upon the former, and the mortgaged premises were sold upon the execution, the creditor himself being the purchaser. Held, the judgment was thereby dis- charged to the amount of the value of the land. Johnston v. Watson, 7 Blackf. 174. A mortgagee purchased the mort- gaged premises, at a sale upon an exe- cution, issued in a suit on the mortgage. He paid no money to the officer, but gave his receipt for the amount. The sheriff executed a deed to the mortgagee, but did not acknowledge it. The mort- gagee remained in possession several years, when the premises were sold under a judgment subsequent to the mortgage. Held, the last purchaser took no title. Stoever v. Rice, 3 Whart. 21. In Ohio, where a mortgagee recovers judgment for the mortgage debt, and causes the mortgaged premises to be sold upon the execution ; the purchaser takes an indefeasible title, though the price paid is not suiiicient to pay the whole debt. Fosdick v. Risk, 15 Ohio, 84. In New Jersey, where a mortgagee recovers judgment on the mortgage debt, and causes the mortgaged premi- ses to be levied on and sold, the mort- gage debt is extinguished to the amount of the purchase-money. Deare v. Carr, 2 Green, Ch. 513. So, though the judgment is recovered in the name of husband and wife, and the husband causes the sale to be made, and becomes the jiurchaser. Ibid. So, though at the time of the sale the mortgagee was ignorant of the exist- ence of his own mortgage, and there are intervening incumbrances. Ibid. The following recent case in Massa- chusetts sustains the vahdity of a levy on execution, notwithstanding a variety of miscellaneous objections. An equity of redemption was attach- ed and levied on, sold on execution, and conveyed, as " all the right in equity " which the mortgagor had at the time of attachment, " to redeem certain mortgaged real estate in B., de- scribed in certain mortgage deeds," stating the names of mortgagors and mortgagees, the dates of the mortgages, and the books and pages where they CH. XXXVII.] EXECUTION SALE, ETC. 339 were recorded. Held, the levy and sale were valid as against one claiming by purcliase from the mortgagor, though one of the parcels did not belong to the mortgagor at tlie time of the attach- ment or the levy, this being an injury to the purcliaser, if to any one ; though a parcel, not belonging to him, and not included in the return, was bought with the rest, and its price included in the general sum bid ; though the mortgage, subject to which the equity was sold, described the premises as two lots embraced in a certain for- mer mortgage, without further designa- tion, except as to one of the lots, the former mortgage embracing three lots, and it being impossible to distinguish which of the other two was intended ; though otlier judgment creditors had agreed with the purchaser, that he might bid off the equity, for the amount of all their claims ; though one debt had been paid before the recovery of a judgment upon it, with the knowledge of the purchaser ; though the date of the mortgage was wrongly stated in the advertisement ; and though certain tools and machinery, not included in the mortgage, were embraced in the sale, and increased the price. BufFum v, Deane, 8 Cush. 36. 340 THE LAW OP MORTGAGES. [CH. XXXVIII. CHAPTER XXXVIII. MORTGAGES OP PERSONAL PROPERTY. — NATURE, REQUISITES, ETC., OF SUCH A MORTGAGE. 1. Mortgages of real and personal prop- erty, compared and distinguished. 3. Rights of the mortgagee as to pos- session. 4. Not perfected without the assent of both parties. 5. Form of a mortgage; no particular language is necessary; valid without a seal; partnership property. 13. Parties to a mortgage. 15. Absolute bill of sale, and defea- sance. 18. Parol evidence; whether admissi- ble to prove an absolute bill of sale to be a mortgage. 21. Power of sale. § 1. Having now completed the consideration of Mortgages of Real Property, we proceed to a view of Mortgages of Per- sonal Property. Many of the rules and principles, which have been stated at length in regard to the former, are equally applicable to the latter ; but, on the other hand, the very different nature, qualities, and incidents of real and personal estate, running through all the titles of the law which re- spectively appertain to them, are found also materially to affect this particular subject of mortgages. («) In general (a) A chattel mortgage is an instru- ment of sale, conveying the title, with terms of defeasance, and, if the terms of redemption are not complied with at common law, the title becomes abso- lute. The nature of the agreement must be such, that, by mere non-per- formance of the condition, the title will be transferred to the mortgagee. Par- shall V. Eggart, 52 Barb. 367. A chattel mortgage is distinguished from a pledge, in that, whether posses- sion is delivered or not, the title passes, subject to be defeated upon perform- ance of the condition, and, in case of a breach, it becomes absolute at law. Heyland v. Badger, 35 Cal. 404 ; Wright V. Ross, 36 Cal. 414. With reference to the distinction between mortgages of personal and those of real property, it is said : " The title to real property can only be trans- ferred by deed. When conveyed in mortgage, if the condition is not per- formed, the mortgagee has the title until he has released or conveyed it. It is the object of our registration laws to protect a purchaser who takes a con- veyance in good faith according to the apparent title on the record. But no deed or writing is made by law essen- tial to the transfer of title to personal property. A purchaser must take it upon his vendor's warranty of title. A mortgage duly recorded gives certain rights to the mortgagee, created and CH. XXXVIII.] MORTGAGE OF PERSONAL PROPERTY. 341 it may be remarked, that the law of mortgages of personal property partakes less of technicality than that relating to the defined by the statute ; but the statute does not change the nature of the prop- erty, nor require tliat all subsequent changes in title shall be shown upon the record. An assignment or release of the mortgage is not required to be recorded. The mortgagor and mort- gagee may join in a sale, which will give a perfect title to the chattel sold, and the record furnish no evidence of it. A creditor of the mortgagor may attach the mortgaged property, and ac- quire a right to apply it to the satisfac- tion of his debt, unless the mortgagee interposes seasonably for the assertion of his rights. The mortgagee may be summoned as the trustee of the mort- gagor, and the validity and extent of the mortgage may be tried in that form." Per Hoar, J., Bigelow v. Smith, 2 Allen, 265. In a late case in Pennsylvania — Barnhart and Koch v. New York and Schuylkill Coal Company — it is held that the provisions of the Act of Jan. 11, 1867, enabling mining companies to mortgage property, do not include pcr- sonal property. Opinion by Agnew, J., February 4, 1869 : The act provides, " that all iron and other manufactur- ing and mining corporations, incorpo- rated under the laws of this Common- wealth, shall be and are hereby en- abled to borrow moneys, and to secure the loans to be made to them by mort- gage of their property, and to dispose of their bonds or certificates of loan, or pay interest thereon, at such rates as railroad and canal companies may now do." The question presented is, whether this act intended to embrace a mortgage of chattels in the term prop- erty, or only such property as liad been usually mortgaged before the time of its passage ? It is said, the act is an enabling act. This is so; but was its purpose to enable these compa- nies to mortgage their personal prop- erty, or was it to enable them to dis- pose of tlieir bonds, or i)ay interest there- on, at such rates as railroad and canal companies can now do ? If the former purpose had been distinctly in the mind of the penman of the act, it is strange he did not say so in clear and apt language, considering it to be the introduction of a novelty into the laws of mortgage, unwarranted by any for- mer policy of the State. It is true, railroad companies have been author- ized to do this, and other corpora- tions in similar circumstances, whose personal interests have been of such a permanent and fixed character, or so incapable of removal, that no in- convenience would be felt in relaxing the general rule as to movables. But in this act the term property is so wholly unexplained by its context that it may or may not refer to chattels, and it leaves the mind to hesitate and doubt whether the legislature meant more than the property accustomed to be mortgaged under the laws of the State, and for which provision was made for notice by recording, and remedy by scire facias. But the intent to facilitate the borrowing of money at unusual rates of interest is clearly expressed, the power being to dispose of their bonds, or to jmy interest thereon at such rates as railroad and canal com- panies may now do. Having, then, one clear and useful purpose plainly in view to satisfy the language of the act, and another which is extremely doubt- ful, we must look to the reason bearing upon the interpretation to determine what meaning shall be given to the word property. If we give the term its full scope, it will embrace, as the sher- iff's levy actually did, an infinite va- riety of goods in a store, kept purposely for sale to laborers at the mines, and to 342 THE LAW OF MORTGAGES. [CH. XXXVIII. other class ; following in this respect the general distinction between real and personal estate, the former being governed by rules of very ancient origin, and the latter having risen into any considerable importance, as a subject of common-law regulation, only at a comparatively recent period. On the other hand, the interposition of equity, to mitigate the severity of the common law in relation to conditions, to prevent /orfci^- ure, and guard necessitous borrowers from the rapacity of exacting lenders, has been far more directed to real than personal property. Indeed, as will be more fully seen here- after, an eqidty of redemption of personal property, as a dis- tinct and well-defined title, subject to the various incidents of ownership and disposal, which appertain to other acknowl- edged interests and estates, can hardly be said to exist. An- other distinguishing feature of that branch of the law of mortgages, which we are about to consider, grows out of the movable and destructible nature of personal chattels ; (a) the country side ; and thus we should have the lien of the mortgage sailing out after every spool of cotton, paper of pins, hat or cap, and the notions on twenty-two shelves stated in the sher- iff's levy. But if the absurdity of such a roaming lien should compel us to contract the meaning of the word, at what boundary shall we stop 1 What warrant have we to say it shall only embrace houses, mules, and the tools and implements of labor in the mines ? And if we should say the sheriff will not be sent in the foolish pursuit of property or merchandise taken or sold off the premises, of what use would be the power to mortgage the personalty '? Chattel mortgages and sales which leave the property in possession of the debtor are against policy and void against exe- cution creditors. Then what evidence have we in the act itself that it was the intention of the legislature to uproot this ancient and wise policy ? Certainly none, but the use of a word of wide meaning, and which might have been readily used in reference to a kind of property in the mind of the penman which was the common subject of mortgages. On the other hand, the omissions of the act tell strongly against the wide meaning asked for it. There is no provision for recording such a mortgage, or for a remedy upon it. It is not a good argument to say, the recording of the mortgage as to the realty would carry the personalty with it. That, however, supposes that every mortgage will consist of realty as well as of personalty. But if property mean chattels, it would be as competent to mortgage personalty only as both realty and personalty. Certainly the legislature did not mean that an unre- corded chattel mortgage should be kept in the pocket of one creditor to be sprung upon others when it might suit his interests to let it go. Upon a view of the whole case, we do not think it was meant by the term property to cover any other kinds than those which the law made capable of being mort- gaged by such corporations. Leg. Intell., Sept. 3, 1869. («) Statutory provisions on the sub- ject are held to apply only to mortgages CH. XXXVIII.] MORTGAGE OP PERSONAL PROPERTY. 343 necessarily calling for a peculiar set of rules to protect the rights of the respective parties, and of those who claim under one or both of them. Hence arise the numerous questions and cases as to the effect of conlimicd pussesislvn on the part of the mortgagor ; and the statutory provisions relating to regis- tration, and the mode of attaching or levying upon mortgaged personal property, with the various judicial constructions of those statutes. Still another peculiarity of the mortgage of personal property, is its analogy in some respects to 21. pawn or pledge y while in others it partakes more of the character of mortgages of real estate. On the whole, it may safely be said, that mortgages of personal property are so far governed by distinct rules and principles, as to require that they be sepa- rately treated in any systematic view of the general sul)ject of mortgages. § 2. The same debt may be secured by mortgages of both real and personal property. Thus a mortgage of lands hav- ing been made to secure a loan, and bank shares assigned as further security, the shares were afterwards transferred by the mortgagor. Held, they were still liable for the debt, if the real estate proved insufficient to pay it.^ (a) § 3. A mortgagee of chattels lias the legal title or general property, even before the debt is due, liable to be defeated by redemption ; (Z>) and a right to immediate possession, unless otherwise agreed.2(t') Ordinarily, however, the possession re- 1 McLean v. Lafayette, &c., 4 McL. 2 Stewart v. Hanson, 35 Jlaine, 506 ; 430. Ferguson v. Cliflford, 37 N. H. 86 ; 6 Dutch. 250. executed within the State, or relating assignee for the benefit of creditors, to property at the time witliin its juris- Wilson v. Gray, 2 Stockt. 323. diction. Fairbanks v. Blooinfield, 5 (c) A note in payment for a cow, Duer, 434. The constructi(jn of a containing a stipulation that the prop- mortgage of personal property is to be erty should remain ii\ tlie promisee till governed by the kx loci. Tucker v. tlie note was full}"- paid, was given as Toomer, 30 Geo. 138. security for tiie payment of anotiier (a) As to joining real and personal note by tlic same maker, and contain- property in one mortgage or pledge, ing a similar stipulation, for a yoke of see Mobile, &c. v. Talman, 15 Ala. 472 ; oxen. The promisee having taken pos- Despatch, &c. v. Bellamy, 12 N. H. session of the oxen before tlie time of 206. payment for them had elapsed; held, {h) His title is good against an he still had the right of possession of 344 THE LAW OF MORTGAGES. [CH. XXXVIII. mains with the morti^agor ; and in this a mortgage differs from a pledge.^ And it is said a mortgagee of personal prop- erty will be restrained by the Court from taking possession, before breach of condition.^ More especially, when a mort- gagor of chattels, by the terms of the mortgage, is to retain possession until a default in payment, the mortgagor's legal right of possession during the time limited cannot be disturbed by the mortgagee.'^ If the mortgagor unconditionally sells the property, the mortgagee may take possession, notwithstanding a stipulation for the possession of the former till the debt should become due.* (a) After the debt becomes due, the 1 Conner v. Carpenter, 2 Wins. (28 Verm.) 237. 2 Bank v. Guardin, Spears, Cli. 439. tlie cow till the maturity of the notes, although the oxen were of the full value of the note given for them. Woodman v. Chesley, 39 Maine, 45. It is sometimes held that the mort- gagee has the right of possession, unless and on the same day the mortgagor other liens have attached to the prop- pledged it to the defendant, promising 3 Fairbanks v. Bloomfield, 5 Duer, 434. 4 Whitney v. Lowell, 33 Maine, 318. engine lathe, with an agreement for the mortgagor's possession till breach of condition. The plaintiff delivered the lathe to a carrier, to be taken to the town where the mortgagor lived, erty, whilst in possession of the mort- gagor. Wbisler v. Roberts, 19 111. 274. He is to be deemed in actual posses- sion, after he has taken possession and left the property in the hands of his agent, though the property — machin- ery — has not been moved from the building included in the same piort- gage, and he may recover for a re- moval thereof by a stranger during that possession, though his debt has become satisfied by a foreclosure sale at which he was the purchaser. Laflin v. Grif- fiths, 35 Barb. 58. If the property is seized and sold on execution while in possession of the mortgagor, the mortgagee may main- tain an action against the officer. Mil- ler V. Pancoast, 5 Dutch. 250. The title of a mortgagee is sufficient to maintain trover against all persons not setting up any claim under the right to redeem. Hotclikiss v. Hunt, 49 Maine, 213. (a) Mortgage to the plainti o an to have it sent to him iipon its arrival. The next morning the defendant went to the carrier, and ordered a teamster to carry it home, which he did on the same day. After the order, but before delivery, the plaintiff recorded his mort- gage. The defendant afterwards sold and delivered the lathe, and to a de- mand of the plaintiff, replied that he had sold it, and did not know where it was, and refused to aid in finding it. Held, the plaintiff might maintain an action for conversion. Chamberlain v. Clemence, 8 Gray, 889. The mort- gagee may bring replevin against a vendee of the mortgagor without a demand. Partridge v. Swazey, 46 Maine, 414. And, in general, not- withstanding an agreement for the mortgagor's possession, the mortgagee may bring an action for the property. Googins V. Gilmore, 47 Maine, 9. The question of the right of possession is for the jury. Ibid. Where a chattel mortgage author CH. XXXVIII.] MORTGAGE OF PERSONAL PROPERTY. 345 mortgagee may lawfully cuter the premises of the mortgagor, and carry away the property.^ But a mortgagor in possession may have an action of trespass against an officer for wrong- fully taking the property.- § 4. A mortgage of chattels, like other contracts and con- veyances, requires the assent of both parties to give it com- plete legal effect. The proper evidence of such assent is delivery of the mortgage. Delivery to the register, and subse- quent possession by tlie mortgagee, are evidence of such de- livery, and the date is primd facie evidence of delivery at that time.^ Where several mortgages are recorded, the one first ratified has priority.* But where a debtor, without the knowl- edge of his creditor, executed and put on record a mortgage of personal property, to secure the debt, and appointed a third person to act for the mortgagee ; and, soon afterwards, the debtor's property was assigned under the insolvent law, and after the assignment the mortgage was delivered to the mort- gagee : held, the property vested in the assignees.^ The Court say : •'^ " No ratification, after this assignment, can avail to in- tercept the title of the assignees. It has been argued, that the recording of the mortgage deed was equivalent to the actual delivery of the property ; and so it would have been, if the deed had been delivered to the plaintiff", or recorded by her direction. But before the record can have this effect under the statute, the mortgage must be completed ; there must be an existing contract ; which, in the present case, the plaintiff" has failed to prove." 1 Nichols V. Webster, 1 Cliand. 203. 5 Dole v. Bodman, 3 Met. 139. Ace. 2 Vaughan v. Tlioinpson, 17 111. 78. Oxnaril v. Blake, 45 Maine, 602. 8 Foster v. Perkins, 42 Maine, 168. " Dole v. Boilman, 3 Met. 143. 4 45 Maine, 602. ized the mortgagee, on default of pay- held, that, where there is a sale and nient, &e., to enter upon and seize the delivery of personal property for a property, &c., the mortgagor " to keep price to be paid in future, coupled with the machinery in good repair," &c. ; an agreement that if the whole price held, the mortgage authorized posses- is not paid the title shall remain in sion in the debtor, althougli a clause in the vendor, such agreement is fraudu- the printed form, providing for tlie lent and void as respects creditors of property to remain with the debtor, the vendee, who may levy upon and was stricken out before execution, sell it for the debts of the vendee. Babcock ;;. McFarland, 43 111. ;!81. Heppe v. Speakman, Leg. Intell., July, In a late case in Pennsylvania it is 1869. 346 THE LAW OP MORTGAGES. [CH. XXXVIII. § 5. With regard to the form of a mortgage, the law has established no particular terms or language, in which it is to be expressed, if the intention is apparent, (a) Whether an instrument, by virtue of which the plaintiff avers that he be- came entitled to the possession of personal property alleged to have been converted by the defendant, is or is not a mortgage, is a question of law ; and to enable the Court to determine it, the complaint should set forth, if not the whole instrument, at least those provisions which are relied on as giving to it the character of a mortgage.^ § 6. It has been said, though perhaps somewhat too gen- erally, that, to make a conveyance a mortgage upon its face, it must show that the consideration was either a debt due or money lent at the time, or contain an express covenant for payment.^ § 7. An instrument by which one agrees to sell, and another to purchase, certain personal property at a specified price, and that the vendor shall have a lien upon the property till the purchase price is paid, is held to be in the nature of a chattel mortgage.^ (h') So a conveyance to secure a surety was held a mortgage and valid against creditors, though the mortgagor continued in possession and use of the property.^ So the fol- lowing mstrument: " Borrowed from, &c., $275, for which I have placed in his hands, as security, a negro girl ; should I not pay said sum of money by the 20th Inst., the said girl is to be the absolute property of said, &c., and I bind myself to give a bill of sale when demanded," was held a mortgage, and, 1 Fairbanks v. Bloomfield, 2 Duer, som v. Fowler, 15 Ark. 280 ; Tliompson 349. V. Blanchard, 4 N. Y. 303. 2 Hickman v. Cantrell, 9 Yerg. 172; 3 Dunning v. Stearns, 9 Barb. 680. Scott V. Henry, 8 Eng. 112. See Fol- 4 Ward v. Sumner, 5 Pick. 59. [a] It is held, that a mortgage need gave a bond for title, reserving a " lien " not be in writing, if followed by change for the purchase-money upon the prop- of possession. McTaggart v. Rose, 14 erty. Held, not a mortgage. Freeman Ind. 230. V. Bass, 34 Geo. 355. (6) An agreement, stipulating that A mortgage, so defective as to one of the parties is to have a lien upon amoimt to an executory contract merely, certain property of the other as security is good against judgment creditors, if for a debt, operates as a mortgage, the mortgagee has possession before Whiting V. Eichelberger, 16 Iowa, 422. the judgments. Coe v. Columbus, 10 A. sold to B. personal property, and Ohio (N. S.), 372. CH. XXXVIII.] MORTGAGE OP PERSONAL PROPERTY. 347 the slave having died, the mortgagee was allowed to maintain an action against the mortgagor for the sum mentioned therein." i So A. executed to B. a bill of sale of a negro, and B. executed an instrument as follows : " Received of A. a negro. I promise to account to him for the amount thereof in three years from this date, or return the fellow, without being accountable for hire ; and if he should die in this time, A. is to be the loser." Held, a mortgage, and that B. was bound to account for the hire of the negro.^ So an absolute conveyance of a horse, with condition to be void upon payment of a certain sum, is a mortgage, and void as against creditors,' if not registered.^ So the recital, in an instrument, that cer- tain slaves should be bound for the payment of a note, which mortgage was duly recorded, created a valid lien on the slaves, as against a subsequent mortgage.^ So a deed, which has a proviso for " the privilege of redeeming the property con- veyed," im\:>orts, primd facie, that it is intended as a security, and not a sale^ So the following writing : " This day received of R. two hundred and twenty-five dollars, for the payment of which, by the 25th December next, I hereby assign over to said R, the free and full title to a certain negro girl named Hulda," was a mortgage, and not a bill of sale.^ So a bill of sale, made expressly to secure a debt, and stating that, ou payment of the debt by the property or otherwise, the remain- ing articles shall be released to the seller, is a mortgage." Or a writing, purporting at the commencement to be a bill of sale, signed by the vendor only, but afterwards specifying, that, if the price were not paid when due, the vendor might retake the property, sell it, and apply the proceeds to the pay- ment of the note given for the price.^ So a bill of sale to a surety, made for the purpose of indemnity, and providing that, if he shall be compelled to pay the debt, he may turn out the prjoperty on execution, or sell it and account for the proceeds, is in the nature of a mortgage.^ 1 Hart V. Burton, 7 J. J. Marsh. 322. ^ Bissell v. Hopkins, 3 Cow. 166. 2 Berry v. Glover, 1 Harp. Cli. 163. » Fosteriy. Calhoun, Dudl. (S. C.) 75. 3 McFadden v. Turner, 3 Jones, 481. ^ Marsh v. Lawrence, 4 Cow. 461, * Bank, &c. v. Vance, 4 Litt. 168. See Weathersley v. Weathersley, 40 ^ Wilson f. Weston, 4, Tones, Eq. 349. Miss. 402; Le Blanc t'. Bonchereau, 6 Iloss V. lloss, 21 iUa. 322. 16 La. An. 11. 348 THE LAW OF MOETGAGES. [CH. XXXVIII. § 8. But where there was annexed to an absohite bill of sale a condition, that, if the vendee " should not be satisfied " with the property, which was not present, the vendor should have a right to " redeem," upon paying the amount of the purchase- money, " or a negro girl to the satisfaction " of the vendee ; held, the instrument was not, upon its face, a mortgage.^ So a provision in a bill of sale, that the seller shall retain a lien upon the property for the price, is not a mortgage.^ So a deed of chattels, dated October 3, in consideration of the vendor's being justly indebted to the vendee in a certain sum, secured to him by the vendor's promissory note, dated October 1, pay- able in two years with interest, and of one dollar, &c. ; and re- citing a delivery of part in the name of the whole : was held not to be a mortgage.^ Shaw, C. J., says:* "The deed was not a mortgage. It possesses all the characteristics of an absolute conveyance ; and there is no defeasance or condition, which is essential to the character of a mortgage. The only color for considering it a mortgage or pledge is, that it recites an indebtment by note, by the grantor to the grantee, and does not in terms declare the conveyance and (a) satisfaction of that debt. Hence it is inferred, that it must have been intended as a security and not in satisfaction. But this impli- cation is too remote. Since the law has more definitely recog- nized mortgages of personal property, given under certain restrictions, provided for an equity of redemption, and made such right of redemption liable by attachment for the debts of the general owner, it becomes important, that the condition should not only be expressed, but that the terms should be stated so definitely as to enable creditors, not parties, to ascer- tain the true character and meaning of the contract, with a good degree of certainty." So by a written contract between A. and B., B. agreed to pay to A. $1300 by instalments, and A. agreed that B. should have the use of a certain canal boat, &c., unless he should fail to pay said sum, or some part of it, or should remove the boat out of the State, or transfer the 1 Chambers v. Hise, 2 Dev. & B. Ch. 3 Miller v. Baker, 20 Pick. 285. 305. * Ibid. 286, 287. 2 Barnett v. Mason, 2 Eng. 253. CH. XXXVIII.] MORTGAGE OP PERSONAL PROPERTY. 349 same without the consent of A., Ibid. 3 Pisher v. Willing, 8 S. & R. 118. 6 Uean v. McGliie, 4 Bing. 45. 394 THE LAW OP MORTGAGES. [CH. XLI. had not taken possession, might recover one half of the pro- ceeds of sale.^ (a) § 20. If a ship not in port is mortgaged, the law does not require immediate delivery ; it is sufficient if possession be taken as soon as she returns.^ More especially is a mortgage not fraudulent, because unaccompanied by possession, where, by agreement in the mortgage, an immediate voyage was con- templated l)y the owners.'^ § 21. The mortgage of a ship on the stocks, raised and building, to be built and completed afterwards, as security for advances made and to be made, without actual possession or delivery, is not valid by way of hypothecation against attaching creditors.'^ Whitman, C. J., adverts to the supposed doctrine of the civil law as to the hypothecation of things not in esse ; acknowledging the value of this system of jurisprudence, as furnishing elucidation of novel or doubtful cases ; and also in equity and admiralty causes ; but questioning its binding authority. He also criticises the opinion of the Court in Macomber v. Parker, 14 Pick. 497, and contrasts it with that in Bonsey v. Prince, 8 Pick. 236. He proceeds to remark as follows: "If by furnishing funds to an individual, which may always be done secretly ; and, if in money, will seldom be at- tended with notoriety, he can be set forward upon a great scale of manufacturing, or the construction of articles attended with extensive expenditure, and thereby become ostensibly pos- 1 Rice V. Cobb, Law Rep., Vol. 5, No. 3 Leland v. The Medora, 2 W. & M. 2, p. Ill, Mass. S. J. C, 1850. 92. •■i Wliite V. Cole, 24 Wend. 116. See * Goodnow v. Dunn, 8 Shepl. 86 ; 26 ib. 511 ; Portland, &c. v. Stubbs, 6 contra, The Hull, &c., Davies, 199. Mass. 422 ; Morgan v. Biddle, 1 Yea. 3 ; Clow V. Woods, 5 S. & R. 284. (a) Tlie first mortgagee sued the ship. Held, the supposed trustee was mortgagor upon the mortgage notes, not chargeable for the insurance money, summoning tlie second mortgagee as but was chargeable for tiie mortgagor's trustee. Tiie latter had taken posses- proportion of the net earnings in his sion more than sixty days after breach hands, his debt having been previously of condition, in which time, by the law prima facie extinguished by taking pos- of Maine, the mortgagee's title becomes session under tlie mortgage. Rice v. absolute, and then received from the Cobb, Law Rep. Vol. 5, Xo. 2, p. Ill, master freiglit previously earned, as- Mass. S. J. C, 1850. Burning certain charges against the CH. XLI.] MORTGAGE OF SHIPS. 395 sessed of great resources, and of credit without limit ; and, upon the tlireatcning of any danger to his credit, if a secret mortgage or hyi)othccation, made early in the commencement of the business, of whatever shall grow out of the whole out- lay, shall be allowed suddenly to spring up, and sweep the whole, it will operate as a fraud upon, perhaps, hundreds of others, who may have been induced by appearances, occasioned by the very impulse growing out of such secret loans, to expend tlicir time, labor, and resources, in tiie adventure, and expose them to an utter loss of the same." ^ § 22. In case of ref)utcd ownership in Ijankruptcy, under Stat. 21 Jac. 1, ch. 19, §§ 10, 11, the omission of mortgagees to take possession for nine months was held not to affect the title of the mortgagees, as against the assignees in bankruptcy, they having in fact taken possession before the bankruptcy of the mortgagors. The ship, under these circumstances, could not be treated as within the order and disposition of the mortgagors. Abbott, C. J., said : " The bill of sale might be void upon the Statute of Elizabeth, as against creditors ; but not as against the parlies who executed it ; and the assignees are in this respect in no better situation." - § 23. Part-owners of a sliip may mortgage their shares ; and the general rule, as to the necessity of delivery and possession, is somewhat modified by the peculiar relations of parties grow- ing out of this form of title, (a) § 24. The owner of a ship, in possession of the grand bill of sale, assigned -^^^r to eight persons ; and afterwards mortgaged -i| to the defendants, being really owner of only yg. He then sold the remaining -^f^g- to different persons. The plaintiff was a purchaser of J, and besides an assignment took formal pos- session of the whole ship, and got the grand bill of sale into his possession, upon which the names of himself and the seven • Gooflnow I'. Dunn, 8 Slicpl. 97. 2 Robinson v. McDonnell, 2 B. & Aid. 134, 13G. (a) Where a part-owner of a vessel cargo and receivinpf the proceeds, is and carfio mortgages his share, and liable to the mortgagee, in an action afterwards ho and the other owners for money had and received, for the .appoint an agent to sell the whole mortgagor's share of the proceeds. cargo ; such agent, after selling the Milton v. Moslier, 7 Met. 244. 896 THE LAW OF MORTGAGES. [CH. XLI. other purchasers were indorsed, but without date. It was argued for the defendants, that, if possession ouglit to be delivered in case of sale or mortgage of the whole ship, it is not requisite in case of a part ; and that mere possession of the grand bill of sale did not give priority. Lord Camden was of opinion with the defendants, and tiiat the plaintiff and the other seven purchasers stood in place of the original owner, and took, subject to the debts due the defendants.^ § 25. The owners of one-half of a vessel, the other half of which was owned by the master, some months before their bankruptcy, conveyed it by bill of sale, as collateral security for a debt, and agreed to assign all future policies of insur- ance thereon' as further security ; and that the mortgagors might use the vessel for their own benefit till default of pay- ment. Tiie bill of sale was not recorded. At tiie time of making it tlie vessel was at sea, in possession of the master. Between that time and the petition in bankruptcy of the mort- gagors, the vessel came once to Boston, their place of business and residence, and twice to Bath, the residence and place of business of the master, but the mortgagees did not take pos- session. Five days before the petition, they sent notice to the master of the bill of sale', the mortgaged moiety of the vessel liaving been sold by order of the assignee. Held, the mort- gagee was entitled to the proceeds of sale.'^ Upon the various points involved in the case. Story, J., remarks as follows : '^ " There can be no delivery of possession of a ship by one part- owner of his share to a purchaser, when the actual possession is in anotlier part-owner ; such, for instance, as in the present case, where the master is owner of a moiety of the vessel, and in actual possession thereof. The most that can, under such circumstances, be required is, that the master, or other part- owners, should have notice of the transfer, so as to put them in a correct position, so far as their own rights are concerned. Their manifest object was to give collateral security to the trustees, by way of mortgage on the vessel itself, and on the policies underwritten thereon, and not merely for them to hold 1 Gillespy v. Coutts, Ambl. G52. 2 Winsor v. McLellan, 2 Story, 492. 3 Ibid. 497. en. XLI.] MORTGAGE OP SHIPS. 397 the bill of sale as a formal instrument by way of pledge, without giving effect to it as a conditional transfer of the prop- erty. The j)ermission of the owners to take the profits and earnings of the vessel in the intermediate time, and until the debt was to "be paid, was not inconsistent with, but in pursu- ance of, the original agreement. The policies were underwrit- ten, exactly as they should be, in the name of the mortgagors, who were the general owners, subject only to the rights of the mortgagees. The subsequent change of the papers, without the consent or knowledge of the trustees, could not change their rights." ^ " The bill of sale took eflfect, as a mortgage, at the time of the execution and delivery thereof to the trustees. The notice to the master was not necessary to found a title in the trustees ; but it was at most only an assertion of their title, necessary to be made for the protection of the master, and for the protection of the trustees against any subsequent bond fide purchaser or judgment creditor. The notice took effect from the time when it was sent to the master ; and the time, when it reached him, is not material, so far, at least, as the present assignee is concerned." ^ § 26. A., the owner of forty-eight shares in a ship belonging to the port of Liverpool, gave a power of attorney to B., the other part-owner, to sell his shares. The ship then sailed from Liverpool, under command of B., having on board her certifi- cate of registry and the power of attorney. While she was at sea, A. mortgaged his shares and all future freight to the plaintiffs, who had no notice of the power of attorney, and a memorandum of the mortgage was entered in the Liverpool register. Subsequently, B. sold all the shares in the ship and cargo at Sydney (disposing of the forty-eight shares under the power) to the defendants, who had no notice of the mortgage. The ship was thereupon registered de novo at Sydney, and freighted by the defendants at their own exi)cnse with a new cargo for England. She sailed, and arrived in London, with- out going to Liverpool. The plaintiffs took possession of ship and cargo in the London docks, and gave notice at all the wharves of their claim to forty-eight shares of ship and freight. 1 Winsor v. McLellan, 2 Story, 499. '^ Ibid. 501. 898 THE LAW OP MORTGAGES. [CH. XLI. The defendants afterwards also took possession. Held, under the Registry Act, the plaintiffs' title should prevail, and they had properly taken possession.^ Parker, V. C, says : ^ " As to the title to the shares of the ship, there is no doubt the plain- tiffs have made their title, as mortgagees of Ward's shares, good viuder sections 34 and 37 of the Registry Act. The time has not arrived for the completion of their title. By section 38 their title is good, except against such purchaser as should first procure an indorsement to be made on the certificate, as therein mentioned. The defendants represent a subsequent purchaser, who has not fulfilled that condition. The only argument for the defendants is founded on the registration de novo in Sydney; but that was not a registration against the mortgagor, because he was not owner." In reference to the freight, the learned judge remarks:^ "Mortgagees of a ship who take possession before the conclusion of the voyage are entitled to the freight then accruing. A mortgagee who takes possession before the cargo is delivered comes within the rule. The right to the freight does not accrue until the goods are delivered. Parties so taking possession must be as much within the reason of the rule where the ship is in dock, as where she is only on the way to the docks. For these reasons, if the mortgagees had been mortgagees of the whole of the freight, under these circumstances, they would have been entitled to the whole. Being mortgagees of a certain number of shares only they could not take possession, to the exclusion of Marvin or his agents. In such cases the mortgagee, with- out formally taking possession, if he gives notice and requires payment to himself of his shares, that entitles him to receive his shares of the freight then accruing and not actually due. To hold otherwise would render it impossible for the mortgagee to make a title to his shares at all." § 27. The exceptions in 2 New York Rev. Stats. 70, § 7, referring to loans made upon vessels in reference to voyages, are of a nautical character, and do not apply to mortgages of 1 Cato V. Irving, 10 Eng. Law & 2 ibid. 2L Eq. 17. 3 Ibid. 22, 23. CH. XLI.] MORTGAGE OF SHIPS. 399 personal property in their ordinary sense. ^ In a learned and elaborate opinion npon this subject, Mr. Justice Cowen re- marks as follows : " Every statute made to suppress fraud should be construed liberally for the promotion of that end. Tiie piinciple of the exception should be regarded. The fact of the vessel not being in port, excused the innncdiate de- livery ; but giving to that fact the same operation after the vessel was perfectly within the control of the mortgagees, would be straining a point in favor of parties engaged in using the very means which the statute had regarded as strong proof of fraud being intended." ^ He proceeds further to say : " Bottomry is in the nature of a mortgage of a ship. It is when the owner takes up money to carry on his voyage, and pledges tiie keel or bottom of the ship as security for the re- payment. If the ship be lost, the lender loses also his whole money ; but if it return in safety, then he shall receive back his princij)al, and also the premium or interest agreed upon, however it may exceed the legal rate of interest. This defi- nition contemplates taking up money, on some specific voyage or adventure which may be at more than seven per cent inter- est, because the loan is gone if the vessel be lost. It is a con- tract of hazard. No transaction or stipulation of that kind appears between the Demings and their mortgagees. Tiie security was given for a precedent debt, and the contract would liave been vitiated by an usurious rate of interest."^ In bottomry, " if the risk be not incurred, no contract arises. It is a gaming contract. It loses its character entirely when the money secured by bottomry was originally advanced on the personal credit of the owner; and the bottomry bond, or rather what professes to be such, is afterwards taken. The contract is entirely of a nautical character. In the case at bar, the security was taken for a precedent debt between lands- men, in respect to a land transaction. The reason of the con- tract is limited to voyages on tlie ocean or its great navigable arms, in the prosecution of which the merchant often incurs extraordinary risks. The nature and object of the transaction 1 Wliite V. Cole, 24 Wend. 116; 26 '^ Ibid. 122. ib. 511. 8 Ibid. 126, 127,128. 400 THE LAW OF MORTGAGES. [CH. XLI. implies tliat the pledgor should keep possession. His posses- sion is an element without which the contract loses its dis- tinctive character." ^ The learned Judge proceeds further to show, that the transaction in question is neither a case of respondentia nor hypothecation of a vessel in a foreign port. § 28. Sale of one-half of a brig, the buyer giving notes for part of the price, with a bond, which recited that said sum was to run on bottomry on said half, and conditioned to pay the notes at maturity, and that the buyer should keep half the brig insured, and that upon failure to pay the notes the vendor might sell the half at auction, for payment of the notes and expenses, accounting to the purchaser for any surplus. By the same instrument, the buyer made the seller his attor- ney, to convey the property at such sale. Held, the trans- action did not give tiie vendor an equitable lien, nor declare a trust, which was valid as against a purchaser from the vendee, even with notice. The instrument was not a bottomry bond, though plainly so intended. No marine interest was reserved. The vessel was not put at risk, nor did the security of the debt depend upon its safety alone. The instrument was merely an agreement, that the vendor of property might resell it upon non-payment of the price, and pay himself from the proceeds, without words of grant, conveyance, pledge, or hypothecation. It was not a valid mortgage, pledge, or hypothecation, for want of possession or registration, nor was it a power coupled with an interest, and amounting to an assignment. There could be no proceeds till a sale, and the vendor had an interest in the proceeds alone when realized. Hence he took only a naked, revocable power inter vivos. As a declaration of trust, the agreement might be binding between the parties, but not as to third persons.^ § 29. A bottomry bond, unaccompanied by delivery, can- not constitute a mortgage, unless recorded according to Stat. (Maine) 1849, ch. 390.3(a) 1 White V. Cole, 24 Wend. 129. 50, 51. Ace. Hunt v. Rousmanier, 2 2 Webb V. Walker, 7 Cush. 46, 49, Mas. 342; 3 ib. 294 ; 8 Wheat. 174. ^ Greeley v. Waterhouse, 1 Appl. 9. (a) Though a part of the considera- advanced for the voyage, the obliga- tion of a mortgage was money actually tion for it on a mortgage is still good. CH. XLI.] MORTGAGE OF SHIPS. 401 § 30. The charterer of a ship in a foreign port, who had notice of a prior mortgage on the ship and its future earnings, agreed with tlie master, who was also owner, to advance on bottomry such eum as should be necessary to equip the ship for the homeward voyage. A bottomry bond was accordingly executed, but the amount of the necessary expenses of outfit proved to exceed tlie bond. Held, as against the mortgagee, he could not set off the excess against the sum which became due under the charter-party.^ § 31. The master, when abroad, and in the absence of the owner, may hijpolhecate the ship, freight, and cargo, to raiso money requisite for completion of the voyage. The right exists only in cases of necessity, and when he cannot other- wise procure the money, and lias no funds of the owner or of his own, which he can command and apply to the purpose.^ And the master of a ship has no authority to liypothccate her for money advanced for repairs, unless repayment is condi- tioned upon the arrival of the sliip. Nor can he pledge the ship itself and the personal credit of the owners.'^ So the master of a sliip, having borrowed money for repairs, gave the lender bills on tlie owner, and on the consignee of the cargo, for tlic amount, and also an instrument, purporting to hypothecate the vessel, &c. ; and stipulating that, in case of non-aceeptance or non-payment, the lenders might take pos- session and sell, under admiralty process ; that they should 1 Dobson V. Lyall, 2 Phill. 325. 2 3 Kent, 171. 8 Stainbank v. Fcnning, 6 Eng. Law & Eq. 412. however it might be in case of a bot- law in respect to other mortgages of tomry bond. Leland v. The Medora, such chattels, and the rights under it 2 W. & M. 92. are to be settled at common law, unless Woodbury, J.,' says: "It may be the subject-matter being a vessel, or good as a mere mortgage, but in that the consideration being maritime, the event it has no superiority or privileges Courts of Admiralty can get jurisdic- over other mortgages, unless, as here- tion on that account. In England it after examined, it has some claims for seems to be well settled, that her Courts higher respect in admiralty courts, by of Admiralty have no jurisdiction over being a mortgage of a ship, and for a the mortgage of a vessel, merely be- debt connected with maritime business, cause the subject-matter is a vessel. It is, then, in this case, a mere mort- Admiralty never decides on questions gage of a chattel. It is, then, of course, of property, as between mortgagee and to be governed by all the rules, and the owner." Ibid. 108, 109. VOL. II. 26 402 THE LAW OF MORTGAGES. [CH. XLI. forbear niavitimo interest, and might recover the advances, whether the vessel iiad arrived at her port of destination or not. Held, the instrument was void.^ («) 1 Stainbank v. Fenning, G Eng. Law & Eq. 412. (a) Tlie assignee of a particular no steps to enforce his mortgage till the freight has a claim prior to a registered assignee had notified the charterer, and mortgagee of the sliip and of all freight the cargo had been partly discharged, to be earned by her, who was prior in Brown v. Tanner, Law Eep. 2 Eq. date, but who gave no notice, and took 806. CH. XLII.] DESCRIPTION OF THE PROPERTY. 403 CHAPTER XLII. DESCRIPTION OF THE PROPERTY MORTGAGED. — WHAT THINGS WILL PASS UNDER A GENERAL DESCRIPTION. — PROPERTY SUBSE- QUENTLY ACQUIRED. — PAROL EVIDENCE TO EXPLAIN THE MORT- GAGE. 1. General dcsoription ; wliat things 24. Title by accession. will pa's thereby ; evidence sis to place 25. Title by confusion or intermixt- and identity; effect of a schedule. ure. 4. Mortf^age of properly subsequently 26. Issue or olfsprinf; ; whether subject acquired. Ku'e in Engluud and in the to the mortgage security, several United States. § 1. Another point of frequent occurrence relates to the terms of description of the property mortgaged. The question may arise, whetlier such description is sufficiently definite to apply to any, or, if any, to what, particular articles ; and also whether a mortgage can pass a title to property not belonging to the mortgagor at the tiiue, but subsequently acquired by him, even though the terms of the instrument are sufficient to cover it. § 2. It is said, " the articles mortgaged must be of such a nature and so sitnated as to be capable of being specifically designated and identified by written description ; " ^ but that any description which will enable third persons to identify the property, aided by inquiries whicii the mortgage itself indi- cates and directs, is sufficient. As, for examf)le : " The follow- ing property now situated in W. and M.'s B. Factory, so called, on S. Street, near F., Cincinnati, viz. : three twelve-feet plan- ing machines, Nos. 3, 4, and 5, . . . now in my shop in said W. and M.'s," ^ Swift v. Hart, 12 Barb. 530. * 1 Hill, 438, Bronson, J., dissenting. ^ 3 Barb. 102. Ace. Butler v. Miller, 1 Comst. 496. CH. XLIV.] DELIVERY AND POSSESSION. 437 April 29, 1833, in relation to chattel mortgages, was held not to repeal the statute concerning fraudulent conveyances. It only added another to the grounds on which a mortgage will be declared void. Tlie object of the act was to create an additional official guard against fraud or collusion, by re- quiring the mortgage, or a copy tliereof, to be filed. The filing of the mortgage does not rebut the presumption of fraud, arising from non-delivery, or excuse the mortgagee from afih-m- atively showing, where there is no change of possession, that the mortgage was made in good faith, and without intent to defraud. The only effect of the act is, to require the party, in addition to such proofs, to show that the mortgage, or a copy thereof, has been filed. In Frost v. Willard,^ the statutes, de- claring conditional sales and mortgages of personal property void, unless there is a delivery, or true copy of the mortgage filed, i<^ facie evidence of fraud. Thus a vendee took from the vendor the following writing, signed by the latter: " A. bought of B.," &c. (enumerating the articles a:id prices). " Received payment." The property was de- livered, but returned to the vendor, and afterwards attached as his. Held, the vendor's possession was not conclusive evidence of fraud, and, after a suggestion of fraud, parol evidence was admissible to prove the transaction a mortgage. The instru- ment was said to be, not a bill of sale, but a bill of parcels, not stating the terms of the contract, but resembling a receipt, although, unexplained, it would be sufficient to pass the prop- erty .^ And more especially will the mortgage be held good as against the administrator of a deceased mortgagor ; and where, from the nature of the property, actual change of possession was impracticable or inconvenient. Thus the* plaintiff" being liable, as surety for one Jewett, for $1350, the latter gave him a bill of parcels of certain logs, valued therein at $1602.44 ; and acknowledged receipt of payment " by indorsing for me at the Kennebec Bank for the sura of -$1350." The bill of par- cels was made for the purpose of protecting the plaintiff against his liability, and with the understanding that any surplus was to be refunded to the debtor. Jewett, at the time, directed the witness to the bill to deliver the logs to the plaintiff, and the witness afterwards showed them to the plaintiff, they being then rafted, at a mill, in a boom. The next day after making the bill of parcels, Jewett died, leaving his estate insolvent. The plaintiff had paid no part of the debt for which he was liable, but a suit was pending against him. The defendant, the administrator, took possession, and made an inventory of the logs, caused them to be sawed, and sold part of the boards. The plaintiff took no care of the property ; but the defendant 1 Conkey v. Hart, 4 Kern. 22. 2 Fletcher v. Willard, 14 Pick. 4G4. (a) Aio»a ,^Je mortgage is not vitiat- the mortgagee gives the constructive ed by a provision, authorizing the mort- notice required by law. Frost v. Mott, gagor to retain the property until the 34 N. Y. 253. mortgagee deems himself insecure, if CH. XLIV.] DELIVERY AND POSSESSION. 439 took care of it, and it would otherwise probably have been lost. About ten days after the death of Jewett, while the logs were being aj)praiscd, the plaintilT showed the defendant his bill, but neitlier claimed nor demanded them in any other way. The plaintiff brings trover for the value of the logs. Held, the action should be maintained. The Court say : " There was all the delivery which could have been usefully made of prop- erty of this nature. A person was appointed by the vendor to deliver the logs lying within a boom, who went within sight of them with the vendee, and showed them to him. This was as effectual for such kind of property, as a delivery over in hand of a chattel capable of such personal possession. There was no necessity afterwards, that the vendee should place a person over the logs to take care of them for him. He did as others do with similar property, suffered it to lie within a boom, until he should have occasion to use it ; and when the defendant claimed the logs, as belonging to the estate of his in- testate, the plaintiff exhibited his bill of parcels, and declared them to be his property. Nor will the acts of care or owner- ship exercised by the defendant as administrator vary the case ; for it was his duty to protect from waste and accident property belonging to the estate, which had been pledged for a sum less than its value, as he might eventually have to administer upon this very property." ^ So where there was a bill of sale of machines in a manufactory, on condition to be void upon pay- ment of an accompanying note, and the vendee took possession by putting his hands on each piece, and then gave the vendor a lease : held, a mortgage, and that the vendor's continued possession was only j^rimd facie evidence of fraud.^ § 24. In Maine, the possession of the mortgagor has been held primd facie evidcnco of fraud."^ And it is said: "Until the passage' of some late statutes, concerning registration, mortgages of movables, it is believed, have uniformly been held inoperative against attaching creditors ; unless accom- panied by a delivery of the property mortgaged, either actually or symbolically."'^ But where the mortgagor of a horse, to 1 Jewett V. Warren, 12 Mass. 300, ^ Reed v. Jewett, 5 Greenl. 9G. 302, 303. * Per Whitman, C. J., Goodenow v. '■« Howes V. Crane, 2 Pick. 607. Dunn, 8 Slicpl. 92. 440 THE LAW OP MORTGAGES. [CH. XLIV. secure a debt and future advances, made a formal delivery, but remained in possession, and used tbe horse as his own ; and the transfer was not known to persons in tlie neighbor- hood ; and the mortgagor afterwards sold the horse, the pur- chaser buying him bond fide, without notice, and for valuable consideration : held, the mortgagee might reclaim the property from such purchaser ; continued possession being consistent with the nature of a mortgage, till a breach, though not with that of a pledge.^ And, in the same State, it is said, the rule, that, where one of two innocent parties must suifer by the fraud of a third, he must bear the loss who confided in the fraudulent party, does not apply to the case of a mortgage of chattels, without change of possession, so as to throw the loss of a subsequent sale by the mortgagor upon the mortgagee, instead of the purchaser. The rule would apply with the same force to any bailee of property.^ So, if the mortgage is made at the time when the mortgagor buys the property, and no formal delivery is made to him ; it has been held that the mortgagee's title is good against creditors. Thus, where a bill of sale and a mortgage back for the price were made at the same time, in the room where the chattels were, but without formal delivery ; and the mortgagor took possession : the mort- gagee's title was held good against an attaching creditor of the mortgagor.^ (a) § 25. In Vermont it has always been held, that a sale with- out change of possession is void against creditors of the ven- dor ; (5) and this principle is held applicable to a mortgage given back to the vendor at the time of sale. Thus, where a sale was made, and notes and a mortgage of the property given back as security for the price, but the mortgagor took and re- tained possession ; held, the transaction could not be treated as a sale from the original owner, which was not to be per- 1 Lunt V. Whitaker, 1 Fairf. 310. 2 Lane v. Borland, 2 Shepl. 77. 3 Smith V. Putney, 6 ShepL 87. (a) In case of a mortgage, with con- guished. White Mountain Bank v. sent given to the mortgagor to sell and West, 4G Maine, 15. pay over the proceeds, the mortgagee (h) If a /jaernee receives the property, holds as against attaching creditors ; but but immediately redelivers it, he loses from the time of sale his lien is extin- his title. Fletcher v. Howard, 2 Aik. 115. CH. XLIV.] DELIVERY AND POSSESSION. 441 fected or completed till performance of a condition ; that his title accrued by the mortgage, and was in no way aided by his prior ownership ; and that the mortgage was void as against creditors of the mortgagor.^ And this rule applies to a mort- gage of the machinery of a woollen factory, left in the posses- sion of the mortgagor, whether mortgaged with or without the factory.- (a) So a mortgage executed in New York, and valid by the laws of that State without change of possession, will not protect the property from attachment in Vermont, if found tliere in the mortgagor's possession, though taken to Vermont for a temporary purpose/' Kellogg, J., says : ^ " The validity of the plaintiff's lien, by the laws of New York, is conceded, and, as between the parties to the mortgage, it may be ad- mitted to be valid and binding, wherever the property may be found. Admitting the validity of the mortgage in New York, it by no means follows, that it is to be received and recognized liere, to defeat attachments made by our own citizens. This is not required by the comity of States. The case presents sim- ply a question of conflicting liens. The property in question, when brought here, became subject to our laws and liable to attachment. The defendant (^the officer) was not a party to the contract under which the plaintiff (the mortgagee) claims to hold the property." (Z>) § 2G. In Connecticut, possession has been held as necessary in case of mortgage, .as of an absolute sale.^ (c) 1 Woodward v. Gates, 9 Verm. 358. * Ibid. 284, 285. Ace. Skiff V. Solace, 23 Verm. 285. » Swift v. Thompson, 9 Conn. 63. 2 Sturgis V. Warren, 11 Verm. 433. See Patten v. Smith, 5, 19G. 8 Skiff y. Solace, 23 Verm. 279. (a) By the Revised Statutes, no erty, when subsequently brought into mortgage of any machinery, used in Vermont by the mortgagor, with con- a factory, shop, or mill, is good except sent of the mortgagee, cannot be at- between the parties, imless possession tached by the creditors of the former, be delivered to and retained by the Cobb v. Buswell, 37 Verm. 337. mortgagee. Verm. Rev. Stats. 1839, (c) In Connecticut, there may be a 317. See Gen. Stats. 1863. mortgage of manufacturing machinery, (h) It is recently held, that, in without the real estate to which it is case of a mortgage made in another attached ; and the mortgage is effectual. State, where the parties resided, and though the mortgagor retain possession where the property was situated, no of the machinery. Conn. Stats. 1838, change of possession being required 72, 73. by the law of such State ; the prop- The statutory provision, that. 442 THE LAW OF MORTGAGES. [CH. XLIV. § 27. Ill New Hampshire, in North v. Crowell,^ Gilchrist, J., remarks : " Possession by the vendor after an absolute sale of chattels is not conclusive evidence of fraud. It is only primd facie evidence, and is conclusive only when unexplained. And we certainly should not apply a more rigid rule to the case of a mortgage. The length of time that the mortgagor remains in possession, although the Act of 1832 implies that he may retain possession, may, under the peculiar circumstances of a case, be considered by the jury, as tending to show fraud ; but it is a matter susceptible of explanation." § 28. In North Carolina, the same general doctrine is adopted, and applied to the case of an absolute conveyance, with a defeasance back. Thus, in detinue for a negro, it ap- peared that Bryant was indebted to Pearson, who recovered two judgments against him. Bryant stayed the executions, giving the plaintiff security for the debts, and, to indemnify him, executed an absolute bill of sale to him for the negro in question. At the same time, the plaintiff gave ^Bryant an in- strument under seal, acknowledging the purpose of the bill of sale, and promising to surrender it under a penalty, if Bryant paid the judgments on or before a certain day. Bryant con- tinued in possession, and a creditor, to whom he was indebted before the sale, levied an execution upon the negro, who was sold by a constable to the defendant. The bills of sale to both plaintiff and defendant were duly proved and registered, but the defeasance was not, until the day of trial of this action. The defendant had knowledge of the conveyance to the plain- tiff and the bond, before suing out his execution. Held, the action could not be maintained.^ Taylor, C. J., says : " To 1 11 N. H. 254. Ace. Ash v. Savage, 5 N. H. 545. 2 Gaither v. Mumford, 2 Tayl. 167. " whenever the occupant of any dwell- required to be, such mortgage shall be ing-house, having a family, shall mort- effectual, although the mortgagor shall gage the household furniture used by retain possession of such mortgaged him in housekeeping, by a deed in property ; " applies to the furniture of which such furniture shall be particu- a hotel kept by the mortgagor, and in larly described, and which shall be exe- which he resides, with his family, cuted, acknowledged, and recorded, in Crosswell v. AUis, 25 Conn. 301. all respects as mortgages of lands are CH. XLIV.] DELIVERY AND POSSESSION. 443 separate tlie defeasance from the deed, is always a suspicious circumstance. Both deeds were registered within the time required by law, yet the latter not being registered until the moment of trial, is strongly indicative of a wisii in the parties to cover half the transaction with the veil of secrecy. The plaintiir may be considered in the light of a creditor of Bryant's, who, by being permitted to retain the possession contrary to both deeds, was thus enabled by the plaintiff to gain a delusive credit." Daniel, J., says : ^ " To all the world but the parties, this bill of sale must be considered absolute ; and, as the prop- erty did not follow and accompany the deed, the transaction is per se fraudulent. The defendant's having notice, can make no difference." Ruffin, J., says : " The bond or defeasance, as it is called, is not an instrument, which the law directs or authorizes to be registered. It is concealed, until the party is compelled to produce it, by a seizure of the goods. It then comes to light, and contradicts what the deed has before said. One of them must be false ; and take which you will, it equally is a fraud." But where a bill of sale of a horse was on its face absolute, but taken as security for a debt, and possession left with tlie vendor ; and, after being kept by the debtor six years, the horse was seized on execution by another creditor : the question of fraud was held to be for the jury.^ And in the same State it is held that the mortgagee is not required ever to take possession before forfeiture ; nor is the continued posses- sion of the mortgagor adverse, or such as to create a l)ar under the Statute of Limitations.^ § 29. In Maryland, a mortgage of personal property is valid, although the mortgagor retain possession until and after the forfeiture.* § 30. In Alabama, it is held that the possession of a mort- gagor is not fraudulent, being consistent with the terms and effect of tlie transfer.^ Nor is his possession even after the 1 Gaither v. Mumford, 2 Taylor, * Hudson v. Warner, 2 liar. & G. 171. 415. 2 Howell V. Elliott, 1 Badg. & Dev. 6 Magee v. Carpenter, 4 Ala. 4G9 ; 76. Wiswall v. Tieknor, G ib. 17'.); Desha ^ Joyner v. Vincent, 4 Dev. & B. v. Scales, ib. 3o(j ; Sinierson v. The 512. Branch, &c., 12 ib. 205, 213. 444 THE LAW OP MORTGAGES. [CH. 5LIV. law-day conclusive evidence of fraud. ^ (a) So in Virginia.^ So in Soutli Carolina.^ § 31. In Missouri, possession by a mortgagor is held con- clusive evidence of fraud as against prior or subsequent cred- itors.* § 32. In Illinois it has been held, that, unless the mortga- gor's possession is consistent with the terms of the mortgage, it is per se fraudulent.'^ But it is also held, that a mortgage is valid without transfer of possession, if bond fide, and if the continuance of possession is consistent with the deed.^ So a stipulation in a chattel mortgage, " that the mortgagor may retain possession of the mortgaged property ; but in case the chattels, or any part thereof, shall be attached or claimed by any person, at any time before the payment of the money secured, or in case the mortgagor shall attempt to sell them, without the consent of the mortgagee, then the latter shall have the immediate right to the possession of the whole of the said chattels to his own use ; " is not fraudulent or against the policy of the law.''' In a late case it is held, that posses- sion of the mortgagor after default is a fraud per se, not open to explanation. And if after default such property be sold on execution as the mortgagor's, the mortgagee cannot recover it of the purchaser. But the time allowed to take possession after default must depend upon the circumstances of each case.^ § 33. In Michigan, where a mortgage was made of goods in a store, and no announcement of the fact made, the goods were not moved, and the same clerk continued to have charge of the store and goods, and made use of the same books of 1 Beall V. Williamson, 14 Ala. 55. * King v. Bailey, 6 Mis. 575. 2 Rose's, &e. v. Burgess, 10 Leigh, ^ Kliines v. Phelps, 3 Gilm. 464. 186 ; Clayborn v. Hill, 1 "Wash. 177 ; ^ Thornton v. Davenport, 1 Scam. Glasscock v. Batton, 6 Rand. 78. 296. 3 Gist V. Pressley, 2 Hill, Ch. 318, 1 Prior v. White, 12 111. 261. 328 ; Maples r. Maples, Rice, Eq. 301 ; 8 Reed v. Eames, 19 111. 594. Bank v. Gourdin, 1 Speers, Eq. 441, 459 ; Fishburne v. Kunhardt, 2 ib. 566. (a) A recent case decides, that a against subsequent purchasers and io?!a mortgage, with possession retained by Jicle creditors. Morrow v. Turney, 35 the mortgagor, is good, excepting as Ala. 131. CH. XLIV.] DELIVERY AND POSSESSION. 445 account, though acting in fact as the agent of the mortgagee ; held, the mortgage was invalid against a mortgage of laler date but prior registry.^ § 34. In Tennessee, a mortgagor's continued possession after the time of payment is primd facie evidence of fraud. Other- wise with possession before the day of payment, because it is understood to be in virtue of a tacit or presumed agreement.^ But it has been held, that, where personal property mortgaged is left in possession of the mortgagor, and he sells it, the mortgagee cannot follow the property into the hands of the purchaser.^ § 35. In Ohio, a mortgage, where the mortgagor retains pos- session by virtue of it, with a power of sale, is void as against subsequent purchasers and execution creditors. But when possession is taken by the mortgagee, the mortgage becomes valid as against execution creditors, not having made a levy, and subsequent purchasers.'* § 36. In Indiana, possession is not conclusive evidence of fraud.^ But, if the mortgagor remains in possession, with the mortgagee's permission, and uses and disposes of the goods as his own ; the mortgage has been held void.*^ § 37. In Kentucky, where possession is not inconsistent with the deed, the question of fraud is for the jury.^ Possession of goods by a mortgagor has been held to be not even evidence of fraud,^ the title not passing by a mortgage till forfeiture.'^ On the other hand it lias been held, that such possession may bo evidence of fraud. ^'^ (a) 1 Doyle V. Stevens, 4 Mich. 87. » Watson v. Williams, 4 Blackf. 26. 2 Callen v. Tliompson, 3 Yerg. 475 ; ^ Jordan v. Turner, 3 Blackf. 309. Maney v. Kiilough, 7 ib. 440 ; Mitchell "^ Laughlin v. Ferguson, G Dana, V. Bcal, 8 ib. 142. See Wiley v. Zash- 117. lee, 8 Humph. 717. » Snyder v. Hitt, 2 Dana, 204 ; 3 Hurt V. Reeves, 5 Hey. 50. Bucklin v. Thompson, 1 J. J. Marsh. * Brown v. Webb, 20 Ohio, 389. See 223 ; Head v. Ward, ib. 280. Collins V. Myers, 16 Ohio, 547; Ciiap- » Head r. Ward, 1 J.J. .Alarsli. 280. man v. Wiemer, 4 Ohio St. 481 ; Con- ^ McGowen v. Hoy, 5 Litt. 239. greve v. Evetts, 10 Exch. 298. (a) A slave was given by the owner wards returned to the donor, and given to his daughter, kept by her seven by iiim to anotlicr daughter, wlio kept years, and during that time mortgaged the slave for a year or two. Tiie father by her husband. The slave was after- finally devised tiie slave to the first do- 446 THE LAW OF MORTGAGES. [CH. XLIV. § 38. Where the property mortgaged is of a nature which does not easily admit of a change of possession, the rule more especially applies, that the retaining of possession by the mort- gagor is not a fraud upon creditors. Thus a windmill was taken on execution against the person who was in possession of it, with the farm on which it stood. He had previously mortgaged the farm, describing it as " one on which he had lately erected and placed a windmill." In the same deed he sold the windmill to the mortgagee, habendum^ &c., provided, that, if the debt should be paid at such a day, the deed should be void. No change of possession of the farm or mill followed. The mill was so constructed as to be removable at pleasure. In an action by the mortgagee against the sheriff, held, the transfer of the mill was effectual against creditors. Dal- las, C. J., says : " The next question is, whether, taking it to be a chattel, there has been such a possession of it as will pass the property ? Now this is not a case in which a separate and actual possession could have been taken ; for, whether the mill was legally a fixture or not, it was at all events actually fastened to the land, and it was not to be expected, that the mortgagee should come to reside in a mill. The present case is that of a mortgage, where the mortgagee, in conformity with the usual practice in such matters, permits the mortgagor nee. Held, the slave was held by the discharged the attachment lien of B. ; mortgage, and should be sold under it. and B. brought trespass against the Wolfe V. Bate, 9 B. Mon. 208. sheriff, relying on his mortgage. Held, In Nevada, a mortgage of cattle, un- upon breach, it was proper for the mort- der the charge of a servant, is invalid gagor to deliver possession ; that his under the statute, when the only de- consent to the constable's holding livery consists in the mortgagor's point- amounted to delivery, and therefore, ing out a part of them by their brands, upon the discharge of the attachment and telling the mortgagee he delivers lien, B. was the legal owner, by a defea- thera. Doak v. Brubaker, 1 Nev. 218. sible title, and was in possession by his In California, A. mortgaged to B., re- servant. Also, as the mortgage was taining possession, according to the good against the mortgagor, even mortgage, until breach. Upon non-pay- though tending to defraud his credit- ment of interest, B. attached the prop- ors, it was also good against the at- erty, for interest due, and other indebt- taching creditor, if he was not a bond edness. While the constable was in pos- jide creditor, and that trespass would session, at the request of B. A. agreed lie, upon proof that lie was not, which to hold for B., under the mortgage as proof was therefore admissible. Hack- well as under the attachment. R. then ett v. Manlove, 14 Cal. 85. sued A., levied on the chattels, and CH. XLIV.] DELIVERY AND POSSESSION. 447 to remain in possession. The constructive possession of the land under the deed is a sufficient possession of the mill ; and the more so, as this was not an absolute conveyance." ^ So, where there is a tenancy from year to year, under a lease with covenant not to assign, and, in case of assignment, that the lessor may enter and hold possession, paying for improvements and buildings erected on the land ; a mortgage thereof to the lessor is valid, though no possession be taken by him.- Ken- nedy, J., says : ^ " The mortgagors had an interest in the premises mortgaged by them, equal to their value, and were regarded quasi the owners thereof. But the mortgagors had only a lease from year to year, which not only restrained them from assigning or letting their interest in the lots without the consent of the lessor, but likewise restrained them from re- moving or detaching the said buildings and improvements thereon upon any terms whatever. Actual possession could not have been delivered to the mortgagee without putting the latter also in the possession of the lots. But the mortgagors were restrained by the terms of their lease from doing this." So a mortgagee of four hundred tons of coal, part of a larger pile on the wharf of the mortgagor, took possession of the whole pile, with the assent of the mortgagor, and appointed the mortgagor his agent to sell his coal for him. Held, that there had been a sufficient delivery to vest the title in the mortgagee, and that he was entitled to hold the whole pile, against the assignee in insolvency of the mortgagor, Tintil he had sufficient time and opportunity to separate and remove his four hundred tons.* § 39. But where machinery is not so attached to a building as to be a fixture, possession of the mortgagee is necessary to give a title, against an attaching creditor of the mortgagor. Thus there was a conveyance of land, " having a wool-carding factory, and the appurtenances for carrying on the same ; " and a mortgage back of the same premises to secure the pur- chase-money. About the same time, the mortgagor leased the 1 Steward v. Lombe, 1 Brod. & B. 506. 2 Luckenbach v. Breckenstein, 5 W. & Serg. 145. 3 Ibid. 149. * Weld V. Cutler, 2 Gray, 195. 448 THE LAW OP MORTGAGES. [CH. XLIV. premises to the mortgagee, but himself remained in posses- sion. Tlie machines stood on the floor of the building, not nailed to the floor, nor in any way attached or annexed, unless it was by the leather band, which passed over the wheel or pulley, so called, to give motion to the machines. This band might be slipped off the pulley by hand, and it was taken off and the machines removed from time to time, when they were repaired. Each machine was so heavy, as to require four men to move it on the floor, and was too large to be taken out at the door ; but it was so constructed, as to be easily unscrewed and taken in pieces ; and the machines were so taken in pieces, when removed by the sheriff, as hereafter stated. The day before the attachment, the mortgagee endeavored to secure the machines by nails or spikes driven into the floor ; and these were drawn out by the sheriff. In an action against the sheriff for not keeping the machines, after attaching them as the prop- erty of the mortgagor ; it was held, that they were thus liable to attachment, being personal estate, and never delivered to the mortgagee.^ The Court say : ^ " Though in some sense attached to the freehold, yet they could be easily disconnected, and were capable of being used in any other building erected for similar purposes. The relaxation of the ancient doctrine, respecting fixtures, has been in favor of tenants against land- lords ; but the principle is correct in every point of view ; and it is to be considered, where they are removed from the realty by an officer, who takes them for the debt of the tenant, that they go substantially to his use. The mortgagees of the build- ing and privilege, not being in possession, had no possession of the machines, which were therefore liable for the debts of the mortgagor," § 40. Tlie question of fraud, arising from non-delivery of the property, is usually made between the mortgagee and a subsequent purchaser or creditor of the mortgagor, claiming under a sale from him, or attachment or execution against him. Other parties, however, may set up the same title, ad- verse to one claiming under a prior transfer without posses- sion. Thus it is said : ^ " ^ mortgagee is deemed a purchaser 1 Gale V. "Ward, 14 Mass. 352. ^ Per Nelson, C. J., Frisbee v. Thay- 2 Ibid. er, 25 Wend. 399. See § 3. CH. XLIV.] DELIVERY AND POSSESSION. 449 8ub modo ; he is so regarded every day under tlie statute re- specting fraudulent sales (2 N. Y. Rev. Sts. ch. 70, § 5), and protected within the saving clause in favor of subsequent pur- chasers in good faith." So where a mortgage, embracing per- sonal property, was given to secure certain debts due to the mortgagee, and liabilities assumed by him for the benefit of the mortgagor, and the mortgagee permitted the property to go into the possession of the mortgagor, with the understanding that he should appropriate it to the claims secured, and he in fact paid therewith as large a proportion of sucli claims, as could have been paid from the avails of the property if it had been sold by the mortgagee ; held, the mortgagee had' hot thereby lost his lien as against subsequent mortgagees, who took subject to the claims thus satisfied.^ So the defendant, a pawnbroker, advanced money to a son of tlic mortgagor for the use of his family, and received plate, linens, &c., in* pledge, which had been mortgaged to the plaintiffs, neglecting to make inquiry concerning the pawnor's authority, although there were circumstances to excite suspicion. Held, the mortgagee's title should prevail over the pledgee's.^ § 41. The Statute of New York, requiring that mortgages be accompanied by possession, does not apply as between mortgagee and landlord ; but in such case fraud in fact may be shown.^ Nelson, C. J., says:^ "Rent is a meritorious de- mand, and the law affords very ample remedies to enforce payment ; but the landlord can set up no peculiar preference over other bond fide creditors, until he acquires an actual lien upon the goods." § 42. An assignee in banJcruptcy, unless there be fraud, takes only the title which the bankrupt himself had, and cannot avail himself of the want of possession of a prior mortgagee.^ The same rule applies to assignees in trust for creditors. It is said,'' such assignees "have no rights which could not be set up by the creditors themselves, whom they represent. But 1 Pond V. Clarke, 14 Conn. 334. ^ Winsor v. McLellan, 2 Story, 500. 2 Lewis V. Stevenson, 2 Hall, 63. See Ililliard on Bankruptcy, &c., ch. 6, 3 Frisbee v. Thayer, 25 Wend. § 11. 896. 6 Per Kennedy, J., Lnckenbach v. « Ibid. 397. Brickenstein, 6 W. & S. 149, 150. VOL. II. 29 450 THE LAW OP MORTGAGES. [CH. XLIV. the mortgagee is also a creditor of the mortgagors, and, as such, his claim is therefore equally meritorious with those of the other creditors. But the mortgage, which is a special assignment in his favor, made for the purpose of securing the payment of his debt, being executed anterior to the general assignment, gives to the defendant a prior right, in equity at least, if not in law, to whatever is contained in the mort- gage." § 43. The perso7ial representative of the mortgagor, after his death, cannot claim the property for want of delivery. Thus a bill of a female slave was made, with the following condi- tion : " If said A. well and truly pay said B. the above sum, &c., before his death, the above obligation to be void ; only the increase, if any, to remain the property of B." Held, this was a mortgage, and, if the mortgagor retained possession of the slave and her increase during his life, and died without payment, the mortgagee or his personal representatives might at law recover the slaves from the personal representatives of the mortgagor.^ RufSn, C. J., says : - "As the mortgagor had his whole life to pay the money, and had paid no part of it at his death, the mortgage became forfeited only on that event. We think that a mortgagee is not, under any circumstances, as between him and the mortgagor, obliged to take possession before a forfeiture, and thereby subject himself unnecessarily to an account. Whatever had occurred before the day of payment, the mortgagee might waive it, and upon the forfei- ture of the mortgage by the non-payment of the money at the death of the debtor, a right to demand the mortgaged property thereby and then arose to the mortgagee."^ § 44. An assignee of the mortgagee may avail himself of the delivery made to the latter. Thus the owner of a horse mortgaged and delivered possession of it. Afterwards he as- signed his remaining interest, and became the servant of the assignee, whom the mortgagee suffered to nse the horse. The assignee and the mortgagor afterwards delivered the horse to another person to be depastured. Afterwards, on the 10th of July, the mortgagee conveyed his right to the four plaintiffs, 1 Joyner v. Vincent, 4 Dev. & B. 512. 2 ibid. 520. ' Ibid. CH. XLIV.] DELIVERY AND POSSESSION. 451 and the same day the assignee of the mortgagor, conveyed his right of redemption to three of them. July 13th, the horse was attached in the hands of the keeper, in a suit upon a note made by the mortgagor and his assignee, brouglit in the name of the payee, but by order and for the benefit of the owner of the note, the defendant in the present suit, and was sold on the execution in that suit, and purchased by the defendant. Soon after the attachment, the keeper of the horse was notified by a letter from the assignee of the mortgagor, that the horse was sold to the plaintiffs, and he was requested to deliver it to them, of which he informed the nominal plaintiff in that suit ; but no such delivery was made. Held, the delivery to the mortgagee would avail his assignees, as against any one claim- ing through the assignee of the mortgagor.^ (a) § 45. Where, by the terms of a mortgage, the mortgagee, upon non-payment of the note at a certain time, is to sell the property, satisfy the debt, and pay over the balance to the mortgagor; and during this time the property, remaining in the mortgagor's hands, is attached as his by a creditor with notice, and sold on execution : in the absence of any provision as to the mortgagor's possession, it is held to be merely per- missive, and the mortgagee may maintain trover, before ma- turity of the note.2 § 46. "Where a mortgage of personal property contains no agreement that the mortgagor may remain in possession, the mortgagee may bring replevin before the debt falls due, al- though the former retained possession, and sold the property. Thus the following instrument was made to the plaintiff: " I, &c., do agree, &c., to hill a sail a yoke of oxen for to secure a payment of thirty dollars, to be paid the 25th of October. * Hunt V. Ilolton, 13 Pick. 216. 2 Spriggs v. Camp, 2 Speers, 181. (a) IleUl, the legal title was in all in trover, and, as the taking was wrong- the plaintiffs, and the equitable right ful, without previous demand ; and that to redeem in three of them, no right the defendant, being a stranger, claim- remaining in the mortgagor's assignee ; ing as a creditor of the mortgagor's that the defendant could not claim as a assignee, could not object to the joinder bond Jidc execution purchaser, being in an action of the three plaintitls with presumed to know the facts which the fourth. Hunt v. Ilolton, 13 Pick, were known to the nominal judgment 216. creditor ; that the defendant Was liable 452 THE LAW OF MORTGAGES. [CH. XLIV. If not paid then, the oxen to be the said Pickard's ; if paid at the time, the above instrument to be null and void." The mort<2,agor sold the oxen to the defendant, and the plaintiff on the 10th of October replevied them. Held, the action might be maintained. Emery, J., says : " In respect to tliis personal property mortgaged, wc do not perceive any such necessary implication (of the mortgagor's possession). The words 'if not paid then, the oxen to be the said Pickard's,' is only stating just what the law infers from the fact of a mortgage of goods and chattels as security for the payment of money at a certain time. The security of the mortgagee ought not to be dimin- ished by the act of the mortgagor. Hardy had no right to sell this property, but subject to the plaintiff's better right. He should have taken care that the note should have been paid at its maturity, if he would have defeated the plaintiff's claim. But as it now is, the plaintiff's right, it would seem, has become absolute. The plaintiff, on finding .that the mort- gagor liad undertaken by a transfer to render it more difficult for him to follow his security, had a right immediately to re- plevy from the second purchaser, lest another alienation might follow, and he be still more distant from his remedy." ^ 1 Pickard v. Low, 3 Shepl. 48, 50, 51, 52. CH. XLV.] DELIVERY AND POSSESSION. 453 CHAPTER XLV. DELIVERY AND POSSESSION. — EFFECT OF A STIPULATION IN THE MORTGAGE THAT THE MORTGAGOR MAY RETAIN POSSESSION. 1. Absolute sale and mortgage com- 6. How far a mortgagor allowed to pared, with respect to delivery. Express remain in possession has authority to sell agreement in the mortgage for the mort- the property. gagor's continued possession. 7. Effect of an agreement for the 2. Mortgage witli an agreement that mortgagor's possession upon the mort- the mortgagor may sell or co)isume the gagee's right to take or sue for the prop- property; whether fraudulent 7^er xe. ertj'. § 1. As was suggested in the last chapter, a distinction has been sometimes made, with reference to the necessity of de- livery, between absolute and conditional sales, upon the ground that a mortgage, from the very nature of the transaction, as a mere security, presupposes that the mortgagee is not to have actual possession until breach of condition. The general prin- ciple to be deduced from some of the cases would seem to have been, that, in case of absolute sales, the form of the instru- ment implies an immediate taking of possession by the vendee, and the law therefore requires some extrinsic explanation of his failure to do so, in order to make the sale valid against creditors ; while a mere mortgage or conditional sale imports primd facie, that the vendor may keep possession till breach of condition, and consequently his continued possession raises no presumption of fraud. This distinction, however, does not seem to be sustained by the weight of authority. It is dis- tinctly and decisively repudiated by the more recent and bind- ing decisions. But there is a class of cases wheie a similar principle is still applied. This is wlicre the mortgage contains an express agreement that the mortgagor shall keep posses- sion, or there is a lease from the mortgagee to him. As the possession of the mortgagor thereby becomes consistent with the terms of the contract, it has been held, that such possession 454 THE LAW OF MORTGAGES. [CH. XLV. is not fraudulent against creditors. («) The important ele- ment of fraud, a secret trust, is here wanting ; and, so far as the validity of the transaction depends upon this consideration alone, the mortgage is sustained ; though, as will be presently seen, a stipulation of this nature in the mortgage may be so framed, as not merely to be liable to the imputation and proof of fraud, but to render the instrument per se, on its face, fraudulent and void. (6) Thus a termor mortgaged his term for years, on condition that if he repaid the money a year after he should re-enter ; the mortgagee covenanting that he should take the profits till that time. The mortgagor did not pay, and the mortgagee allowed him to continue in possession and (a) The Court in Indiana recognize this distinction in tlie following lan- guage : " The mortgagor retained the possession of the goods inconsistently witli, and contrary to, the face of the mortgage, and such possession, unex- plained by evidence, is of itself suffi- cient evidence of fraud as to creditors. No evidence was offered to explain that possession, and show that it was consistent with the mortgage ; and it is, at least, doubtful, whether such evi- dence could have been received, if it had been offered. Such evidence would contradict the face of tlie mortgage ; the mortgage being positive and direct that the mortgagor, at the time and place of making tlie mortgage, deliver- ed the goods to the mortgagee to hold as his own, in his own right, subject to be redeemed, &c. We incline to think that such evidence could not be re- ceived under this mortgage, if it were offered. It is, however, wholly imma- terial whether such evidence be re- ceived or not. The mortgagor not only kept possession of the goods, but he also used and*treated them as his own ; converted them to his own use ; traded and trafficked on them as his own ; sold them as his own, and converted the proceeds to his own use. These pro- ceedings are not only contrary to tlie face of the mortgage, but are inconsist- ent with, and in direct opposition to, the intention, spirit, and meaning of it, and render it wholly fraudulent and void as to creditors." Per Stevens, J., Jordan v. Turner, 3 Blackf. 314. (b) As to the mortgagee's right of possession, see Wheeler v. Kichols, 32 Maine, 239 ; Holmes v. Sprowl, 31 Maine, 73. Whether parol evidence is competent to prove the mortgagor's right of continued possession, see Case V. Winship, 4 Blackf. 425 ; Watson v. Williams, ib. 26 ; Hankins v. Ingols, ib. 35. It is said " there is no foundation for the position, that by reason of" a sur- plus in the value of the property over the debt secured, the mortgagor is a tenant in common with the mortgagee. The interest of the mortgagee is distinct, several, and paramount, and entitles him to possession in all cases, unless it is otherwise expressly agreed." Per Weston, J., Bartels v. Harris, 4 Greenl. 153. In Homes v. Crane (2 Pick. 610), Wilde, J., says : " It makes no difference, we think, whether this agreement of the parties in respect to the possession appear on the face of the conveyance, or in a lease made at the same time, or be otherwise proved, unless, indeed, it were omitted in the conveyance for the purpose of conceal- ment, or with some other fraudulent design." CH. XLV.] DELIVERY AND POSSESSION. 455 take the profits two or three years after ; and in the interim judgment and execution were obtained against the mortgagor. Held, execution sliould not be made of this lease, for the mort- gage should not be said to be fraudulent as to the creditor ; and when a conveyance is not fraudulent at the time of making it, it shall never be said to be so for any matter ex post facto.^ So, in .Stone v. Grubham,- upon a bill of sale of chattels, being a lease for years, the vendor continued in possession ; but, as the conveyance was only conditional upon payment of money, it was held, that the possession did not avoid the sale, as by the terras of the deed the vendee was not to have possession until he had performed the condition. So, in Edwards v. Harben,^ a very leading case upon this subject, it was admit- ted, that if want of possession is consistent with the terms of the deed, as it is in conditional sales, where the vendee is not to have possession till performance of the condition ; the sale is valid. So, in Atkinson v. Maling,* a mortgage was made of a ship to secure an advance, and such further sums as should be advanced subsequently ; with a clause, that, until default, the mortgagor might hold the ship and take the profits. Held, the mortgage was valid. So an assignment of the furniture and other personal property in a tavern, as security for a debt, with a proviso that the grantee should take possession on fail- ure of payment of any instalment, sell the property, &c., till which time the vendor might keep possession, was held good against creditors.^ So a mortgagor of goods, with a provision for possession till breach of condition, afterwards formed a partnership with another person, and put the goods into the partnership stock, and they were treated by both parties as part- nership property. The mortgage being subsequently recorded and the partnership dissolved, the mortgagor transferred the goods to his partner in trust to pay the firm debts, and they were afterwards, before breach of condition of the mortgage, attached by partnership creditors. Held, the mortgagee still retained his title, and might legally require payment of his 1 Lambert's Case, Shep. Touch. G7. * Il)id. 462. 2 2 Bulstr. 225. 6 Martindale v. Booth, 3 B. & Ad. 3 2 T. R. 587. 505. 456 THE LAW OF MORTGAGES. [CH. XLV. debt from the officer. ^ So a debtor, " in consideration of in- debtedness," conveyed to his creditor certain property by a written instrument containing this clause ; " and it is agreed that the debtor shall remain in possession, till default of pay- ment of what may bo due to" (the plaintiff), " at such time as he shall demand payment." The property was subsequently delivered, and the sale proved hond fide. Held, the property passed, as against creditors of the vendor, and might be- held as security for subsequent liabilities on his account. It was said, that the vendee might be summoned as trustee of the vendor, which would prevent any claim for advances, made after service of the writ upon him.^ § 2. As has been already suggested, there is a class of cases, where a stipulation in the mortgage itself for the mortgagor's continued possession renders the mortgage fraudulent and void. These are generally mortgages of stocks in trade, with a provision that the mortgagor may not only continue in pos- session, but proceed, as before, with his business ; or of perish- able or consumable articles, which the mortgagor is allowed to use as well as retain ; (a) ordinarily, in both instances, with the further proviso, that the particular articles disposed of by the mortgagor shall be replaced by others of like kind and value. The decisions upon this branch of the subject are somewhat variable and contradictory. § 3. In Pennsylvania, some cases of this description have arisen, where the grounds assumed and the language used by the Court would seem to imply, that the fact of the mort- gagor's possession being consistent ivith the mortgage does not in any case divest it of a fraudulent character ; but that de- livery is as necessary in case of mortgage as of absolute sale, 1 Alden v. Lincoln, 13 Met. 204. 2 Adams v. Wheeler, 10 Tick. 199. (a) Where property mortgaged ex- the use, is not fraudulent in itself, ceeds greatly in value the amount of unless it be stipulated in the deed that the debt, and embraces perishable arti- the grantor may use it. In the absence cles, these facts are held to afford pre- of such stipulation, the conveyance is sumptions of fraud, which may, how- only prima, facie fraudulent, and the ever, be explained. Crosby v. Huston, fact of fraud is for the determination I'Tex. 203. of a jury. Ewing v. Cargill, 13 S. & So the conveyance of property by M. 79. deed of trust, which is consumable in CH. XLV.] DELIVERY AND POSSESSION. 457 under tlie statutes of 13 & 27 Eliz., oven tliougli the deed ex- pressly provide that possession may be retained ; and, if the mortgagor retain possession, the mortgage is per se fraudulent, and void against a subsequent bond fide purchaser. Appear- ances must not only agree with the real state of things, but the real state of things must be honest and consistent with public policy.^ Thus a mortgage was given, to secure two creditors, of the bark and tools in the tan-yard of tlie mort- gagor, a tanner, of liis skins and Icatlicr unfinished in ])ark and vats for tanning ; providing that he should continue in possession, for the purpose of working, tanning, and finishing the same. The mortgage was not recorded, and tlie property remained in possession of the mortgagor, and luc continued to work the leather in tanning, and to use the tools and bark for that purpose. There was no symbolical delivery, nor any schedule, inventory, or appraisement. Held, fraudulent ^;er se, as against a bond fide creditor without notice.^ Gibson, J., says : ^ "It is said, whenever, by the terms of the contract, it appears possession was not to follow immediately, the case is not within the purview of the statute (of 13 Eliz.). This, I apprehend, must be taken with great qualification. The contract, and the evidence of it, are secret matters between the parties themselves, and can afford no notice to creditors. What will it avail, then, that a person intending to cover his property by a sham sale, has it expressed in the contract that he is to retain indefinite possession. Such a conveyance would bear the stamp of dishonesty on its front. I take it to be necessary, not only that retention of possession be j)art of the contract, but that it also appear to be for a purpose, fair, honest, and absolutely necessary ; or, at least, essentially con- ducive to some fair object the parties had in view, and which constituted the motive for entering into the contract." (a) 1 See Welsli v. Bekey, 1 Penn. 57 ; - Clow v. Woods, 5 S. & R. 275. Milne v. Henry, 40 Penn. 352. » Ibid. 279. (a) Judge Gibson remarks upon two & K. 280.) "In Barrow y. Paxton (5 prior cases on this subject: "Meg- John. 258), the judgment of tlic Court got V. Mills (1 Ld. Ilaym. 286), is a may have been rigiit ; but the reason case wholly irreconcilable with princi- given for tlie decision is an unsound pie, and, I apprehend, not law." (5 S. one." Ibid. 458 THE LAW OF MORTGAGES. [CH. XLV. In another case, Hayden assigned to "Welsh the moiety of a crop growing on the farm where he resided, and the moiety of another crop on the farm where his tenant resided, to remain bound for the repayment of two hundred dollars ; and it was stipulated that " Hayden shall take care of the crop while growing, cut, thrash, and carry it away, under the direction and control of Welsh, who is to have his money out of the price of it." There was no delivery of possession, or of any indicia of ownership. Held, the mortgage was fraudulent and void against creditors ; and the mortgagee had no prior claim over other creditors to the proceeds of the property, after the death of the mortgagor.^ Gibson, C. J., says : ^ "The argument that the assignment is of a rent in the nature of a chose in action^ is without force, granting the fact to be so ; because the assignment of a chose in action itself is subject to the rule which requires a transfer of the possession. Did the parties leave undone that which might serve to indicate the actual owner ? Instead of substituting the mortgagee for the mortgagor, and providing for a transfer of the possession as soon as it might be delivered, consistently with the bargain with the cropper, it was expressly stipulated that the mort- gagor should retain the crop till it should be sold by the direc- tion of the mortgagee, who was to have possession of nothing but the proceeds of it. Taking care of grain, growing, reap- ing, thrashing, and selling it, include all the notorious acts of ownership that are ordinarily exercised in relation to this spe- cies of property ; while the act of giving directions is a matter usually known only to the parties. In reply to the argument that the contract, although fraudulent as to third persons, is good between the parties, it is proper to remark that the contest with the executor is virtually a contest with the credit- ors, it being expressly made a part of the case that the estate is insolvent." So, in case of a mortgage of a country stock of goods, the mortgagor was entitled to retain possession till default in payment. A portion of the debt was payable in goods from the store as the mortgagee might call for them. It also appeared, on the face of the mortgage, that the mort- ^ Welsh V. Bekey, 1 Penn. 57. 2 ibid. 61. CH. XLV.] DELIVERY AND POSSESSION. 459 gagor had hired from the mortgagee the store where the goods were kept for tlirce years, and tlic mortgagor agreed in the same instrument to keep on hand a full assortment of goods, groceries, &c. It appeared in evidence, that the mortgagor and mortgagee were respectively country merchants in one vil- lage ; that the latter sold to the former his stock, and took the mortgage for the price on all the goods in both stores ; that upon making the purchase the mortgagor removed his former stock to the store which the mortgagee had occupied, and went on doing business with both stocks. A ve,rdict having been rendered in favor of the mortgagee, the judgment was re- versed.i A similar doctrine has been held in Massachusetts. Thus a mortgage was made of " all the hay, grain, and prod- uce, growing " on the mortgagor's farm, to secure payment of a certain sum in one year, but mentioning no personal se- curity. The produce was used by the mortgagor, at pleasure, with the knowledge of, and without objection from, the mort- gagee. Held, a jury were bound to infer from these facts, that the mortgage was fraudulent against creditors.^ Wilde, J., says : ^ " The defendant's counsel contends that this property was in its nature subject to be consumed in its use, and was intended to be so consumed by the mortgagor ; and that the mortgage of it, therefore, is prima facie colorable and fraudu- lent against his creditors. And this inference is fully sustained by the decision in Somcrville v. Horton (4 Yerg. 541), the prin- ciple of which decision seems to be admitted as correct, by Morton, J., in delivering the opinion of the Court in ShurtlefT V. Willard (19 Pick. 212). The principle, however, on which such a fraudulent intent is to be inferred, must be understood with some limitations. Articles, in their nature subject to be consumed in their use, may be mortgaged without any impu- tation of fraud, provided they arc not to be used, and may be kept without damage until the mortgage debt shall become payable. But if the articles mortgaged are perishable and . cannot be so kept, or if they are mortgaged under an agree- ment or understanding that they may be used and consumed 1 Griswold v. vSholdon, 4 Coinst. 580. 2 Uobbins v. Parker, 3 Met. 117. ■i Ibid. ll'J. 460 THE LAW OF MORTGAGES, [CH. XLV. by the mortgagor (as tlie understanding of the parties seems to have been in tlie present case), then we think the trans- action must be considered as colhisive and fraudulent. No other reasonable inference from the conduct of the parties to the mortgage can be made. The mortgagor iised and con- sumed the property in the same manner as he would have done if no mortgage had been made ; and this with the knowl- edge of the mortgagee, and without objection on his part. The conduct of the parties is inconsistent with the object of a mort- gage, which is to secure the creditor." § 4. So, in New York, A. bought of B. a stock of goods in B.'s store, and gave notes for the price, payable monthly, and secured by a mortgage of the stock, which provided that, upon non-payment, or any attempt by the mortgagor or any other person to remove, secrete, or sell the goods, the mortgagee might take possession. A schedule was annexed, closing as follows : " together with all other articles mentioned, &c., in a bill of sale this day executed by " B. to A. ; " and to include also all other articles of a like nature, which may be put, or which may be in said store whenever " B. " may be entitled to enforce the within mortgage." A. " not to sell any of the said goods upon credit. If any of the said goods are sold upon credit, that shall be sufficient cause of forfeiture of the within mortgage, and entitle " B. " to treat the same accordingly at his election." A. took possession, and continued in business over a year, when the goods were levied upon by his creditors. Held, as a matter of law, upon the face of the papers, connect- ing the mortgage and schedule together, the provision that A. might sell at pleasure, without applying the proceeds to the mortgage or any other debt, rendered the transaction illegal and void.^ § 5. There are some cases, however, where the rule above stated has not been so strictly applied. Thus, in reference to a stipulation in the mortgage, that the mortgagor might use the property, which was in its nature perishable. Lord Den- • man, 0. J,, says : ^ " The only word that raises a doubt is, ' make use of ; ' for that, applied to perishable articles, must 1 Edgell V. Hart, 13 Barb. 380. ^ Qale v. Burnell, 7 Ad. & El. (N.) 862. CH. XLV.] DELIVERY AND POSSESSION. 461 mean consume. But the most tliat can be made of it is, tliat the stipulation in question may amount to a Hcense to consume such articles; they are still conveyed to the plaintiff; there are no words defeating the original grant, nor any power of selling and disposing of them, or dealing with thcni generally as if they had no.t been conveyed." So, where a bill of sale of goods was given by way of security or pledge for money lent, and a trust in the vendor to keep the goods, and sell them for the benefit of the vendee, appeared on the face of the deed ; it was held not fraudulent.^ So, in Massachusetts, a trader made a mortgage of his stock, providing that, till breach of condition, he might retain and use the whole of it, without hindrance or interruption. It was also verbally agreed between the parties, that he might sell and dispose of it, and apply the proceeds to his own use, with a promise on his part, in case he should make large sales, to increase the mortgagee's security by other property. Held, such mortgage was woi per se fraud- ulent, but the presumption of fraud arising from its terms might be rebutted ; and the Court, upon the facts above stated, would hold the mortgage to, be a valid one.- Wilde, J., says,^ after referring to the doctrine, as established by late cases, that the mortgagor's continued possession is not conclusive evidence of fraud : " We consider the agreement as to the mortgagor's continuing in possession of the goods mortgaged, after the mortgage, and the permission to sell a part of the property, and to apply the proceeds to the mortgagor's own use, as evi- dence of the same character, and as tending to raise the same presumption ; the one part of the agreement may raise a stronger presumption of fraud than the other, but this is a difference only in the weight of the evidence. It has been argued, that the necessary consequence of the agreement was to deceive and defraud the creditors ; and that a party must always be presumed to have intended that which necessarily must follow from his act. But it was not a necessary conse- quence of the agreement that creditors would be defrauded ; and even if that were the necessary consequence of the agrec- 1 Bucknal v. Roiston, Tree, in Ch. 2 Brings v. Parkman, 2 Met. 258. 285. 3 Ibid. 264. 462 THE LAW OF MORTGAGES. [CH. XLV. racnt, it would not follow that such a presumption might not be rebutted." And, in the same State, a mortgage of a stock in trade, allowing the mortgagor to trade with, sell and dispose of some of the articles, provided he forthwith purchase and place in his store others of like kind and value, and apply the sales thereof to the mortgage debt, was held not per se fraudu- lent. The Court consider the question raised in this case as substantially decided in Briggs v. Parkman (2 Met. 258) ; that case being liable to the same objections, and also to the further one, that the agreement for the mortgagee's disposing of the property was a secret one, and therefore more objection- able than if recited in the mortgage itself.^ So, in Michigan, a mortgage of a stock of goods, which leaves the mortgagor in possession, and by inference authorizes him to sell in the usual course of business, is good between the parties, and not necessarily fraudulent as to creditors. Being good between the parties, such a mortgage could not be fraudulent on its face against creditors, since it would not show that there were any creditors, or, if it did, it would not appear but that they had assented to it, or were themselves sufficiently secured.^ So it is held in Maine, that a mortgage may lawfully contain the agreement, that the mortgagor shall retain possession till breach of condition, and pay over the .proceeds of all sales, to be applied to the mortgage debt.^ Weston, C. J., says:* " They authorized sales, and they secured to themselves the power to control the proceeds for the same purposes for which the goods were mortgaged. The proceeds were purchased with their property, through his agency, under their authority. They represented the goods, were substituted for them, and, by the contract, were equally subject to their control. It was manifestly the intention of the parties that the proceeds should be subject to their lien. If he sold for cash, the money was theirs, so long as it could be identified. And if, with the money received, he purchased other property, the property so purchased was tlieirs, until he extinguished their right by ful- filling the condition. So if he exchanged the goods mortgaged 1 Jones V. Huggeford, 3 Met. 515. * Abbott v. Goodwin, 7 Shepl. 411. 2 Gay V. Bidwell, 7 Mich. 519. See Blood v. Palmer, 2 Fairf. 414. 8 Abbott V. Goodwin, 7 Shepl. 407. CH. XLV.] DELIVERY AND POSSESSION. 468 for other goods, and they chose to ratify it, the goods received in exchange were equally suhject to their lien. This course of proceeding was not calculated to injure other creditors. The debtor's right to redeem was all which could be made available for their benefit, under the Statute of 1835, ch. 188. And the remedy there provided would apply as well to the substituted goods, as to those originally mortgaged. Nor would the mort- gagor obtain credit by the possession of the one, any more than by tlie possession of the other." § 6. The question has been raised, how far an autlwrlty to sell the mortgaged property may be implied from the mort- gagor's continued possession, (a) Thus a mortgage was given of " a machine-shop and the steam-engine, boilers, and all other tools, stock, and property of every name and description in said machine-shop." The mortgage was duly recorded, and the mortgagor, continuing in possession, and still carrying on the business, sold one of the engines. Held, the purchaser acquired no title against the mortgagee, unless the latter had expressly or impliedly authorized the sale ; that such author- ity, in the absence of fraud, depended on the intent of the parties ; that this intent might be inferred from the above facts, but was a question for the jury ; and that the Court could not rightly instruct the jury, that, if they found the facts, they were bound, in the absence of contradictory evi- dence, to find the authority .^ Green, C. J., remarks c^ " Em- barrassing questions may arise under this registry law, where the sale is made by the mortgagor, left in possession of the mortgaged property by the mortgagee. To uphold the sale, there must be some agency or authority in the mortgagor from the mortgagee, express or implied. If the possession be con- tinued with the mortgagor for the purpose of sale, then the mortgagee ought to be bound ; but if the possession be for use merely, then the mortgagee would not be bound. The object of the statute is to compel the mortgagee to take possession of 1 Jenckes v. Goffe, 1 Rhode Island, 511. '^ Ibid. 517, 518. {a) A chattel mortgage is not void the niortpajjee, althoufih it has the because it provides tiiat the mortgagor cflfect to postpone other creditors. Ad- shall remain in possession, receiving ler v. Claflin, 17 Iowa, 8'J. the proceeds and paying the same to 464 THE LAW OF MORTGAGES. [CH. XLV. the mortgaged property, or put his mortgage on record, and thus give authentic notice of its existence. The mere posses- sion of the mortgagor is no evidence of authority to sell ; such a construction would defeat the security of the mortgagee. Tiic statute contemplates a possession hy the mortgagor, and protects a purchaser by requiring a record of the mortgage. But if the property is left in the possession of the mortgagor for the purposes of sale, then tlie mortgagor is the agent of the mortgagee for that purpose. In the absence of fraud, the effect of the possession depends on the intent of the parties ; that intent is a question of fact. It may be inferred from cir- cumstances such as are relied upon in the present case, but such inference is to be drawn by the jury, and the Court ought not to instruct the jury, that, if they find the circumstances, they are bound, in the absence of contradictory testimony, to find the authority and intent. If the mortgagee should know- ingly permit the mortgagor to hold out delusive appearances of authority to sell, and thereby deceive a bond fide purchaser, he would be bound." (a) § 7. With regard to the rights of the mortgagee over the property, where it is stipulated that the mortgagor may retain possession ; it is held, that a mortgagee of chattels is the true owner, and entitled to actual possession and control of them, upon non-payment of the debt. His title is not affected by any agreement as to the temporary possession.^ So it is held, that the mortgagor of a chattel, having the right of possession for a certain period, or a purchaser from him, cannot after its ex- 1 Hall V. Snowhill, 2 Green, 8. (a) If the mortgagee allows the and also reserving the right to retain mortgagor, who is a merchant or tlie avails of the sales, applying thirty- manufacturer, to remain in possession three per cent thereof on the mortgage and sell in the usual course of trade, notes, is not conclusively fraudulent on the mortgagor will be considered to its face, or fraudulent per se as matter act and receive the money as agent ; of law, under statutory provisions, but not if the stock is otherwise sold, allowing the mortgagor to retain pos- Miller v. Pancoast, 5 Dutch. 250. session, if the instrument is duly re- A mortgage, reserving the riglit to corded. These provisions may be sell before default in the usual course considered with other evidence, upon of retail trade, the mortgagor agreeing tlie question whether there was fraud to keep up the stock to its then value, in fact. Hughes v. Cory, 20 Iowa, 399. CH. XLV.] DELIVERY AND POSSESSION. 465 piration dispute tlie title of the mortgagee.^ So, where it is stipulated that the mortgagor may retain possession till breach of condition ; the mortgagee may take possession when cither of the claims fulls due.- So, in case of a mortgage of goods, to secure a note payable on demand, the mortgagor to have possession till breach of condition ; no demand of ])ayment having been made, and the property being attached by a cred- itor of the mortgagor, and payment demanded of the officer, according to the statute, and not made within twenty-four hours: held, the mortgagee had become entitled to immediate possession, and might maintain trover against the officer.^ So, in case of a mortgage, specifying no time of payment, and providing that until default the mortgagor might retain pos- session, the property being taken on execution against the mortgagor, the mortgagee brings replevin. Held, the debt being due immediately, not on demand, an absolute legal title vested in the plaintiff, without demand ; and the mortgagor was a naked bailee.* So a conveyance of goods was made by deed, dated in September, 1845, subject to a proviso, that if the grantor should pay to the grantee the sum secured, upon March 22, 1850, or any earlier day, after receiving from the grantee fourteen days' notice, and should in the mean time pay the interest half-yearly, the conveyance should be void. It was further agreed in the deed, that till default in payment of principal or interest as above provided, the grantor, his execu- tors, 56. Ace. < Smith v. Zurcher, 9 Ala. 208 ; Wothercll v. Spencer, 3 Mich. 123. Boyd t'. Beck, 29 Ala. 703. See Cope- - Main v. Alexander, 4 Eng. 112. land v. Bennet, 10 Yerg. 355. 3 Allen V. McCalla, 25 Iowa, 4G4. » Hathorn v. Lewis, 22 111. 395. {n) Purchasers, with actual knowl- time prescribed for refiling. Thomp- edge, are not bona jide, and therefore son v. Van Vechten, G Bosw. 373. cannot object that the mortgage has In order that a mortgage should be ceased, by its own limitation, to be a valid without being recorded, there lien, and has not been legally renewed, must be an immediate delivery of the Lewis V. Palmer, 28 N. Y. 271. • goods, followed by an actual and con- The omission to refile a copy of a tinued change of possession. It is not chattel mortgage (Laws of 1833, p. sufficient, as against attaching cred- 403), does not affect it as against a itors, that the mortgagee takes posses- subsequent mortgagee with notice, or sion before the attaclunent issues, as against purchasers or mortgagees Parshall v. Eggart, 52 Barb. 3G7. between the original filing and the 484 THE LAW OF MORTGAGES. [CH, XLVI. § 24. The record of a mortgage is notice only of the contents of the mortgage itself. Thus where mortgaged property was sold, and a bond not referring to the mortgage taken for the purchase-money ; held, the record of the mortgage was not notice thereof to a purchaser of the bond.^ § 25. A previous chapter (ch. 41) was specially devoted to the consideration of mortgages of ships. The following case illustrates the effect, in the way of notice, of the peculiar mode of registration practised with this kind of personal property. § 26. Where a ship-broker advances money to a ship-owner for the use of the vessel, having notice, by an indorsement on the certificate of registry, of a prior mortgage ; he cannot claim repayment from the freight in preference to the mortgagee, although the latter does not take possession till the ship has entered the docks from her homeward voyage.^ Wigram, V. C, says : " Notice that the ship was mortgaged, especially in the case of brokers who knew of the charter-party, was sufficient to put (the brokers) upon inquij-y, whether this mortgage of the ship, of which they had notice, did not include her freight, earnings, and profits." (a) § 27. The general statutory provision is, that a mortgage shall be recorded in the town where the mortgagor resides. Questions have arisen, with regard to the effect, upon the 1 Green v. "Warrington, 1 Desau. 430. ^ Gibson v. Ingo, 6 Hare, 112. (a) The following case bears upon lien, to whom the lender gave notice the same point, of notice, though not of his mortgage. The third mortgagee, of registration. Mortgage of a vessel as soon as he knew of the consignment and cargo in London, the vessel being (but subsequent to the notice of the then on a whaling voyage to the South fourth), gave notice of his mortgage to Seas, subject to two prior mortgages, the consignee ; who afterwards, having The third mortgagee gave immediate satisfied his own lien, paid over the notice to the others. Subsequently, balance of the proceeds of the oil to the the master, putting into Sydney, trans- fourth mortgagee. Held, the third shipped the oil to another vessel, con- mortgagee was not bound to send signed to parties in London, who hon- letters to meet the master wherever ored his draft, upon having a lien on the vessel might possibly be, and, hav- the consignment. The mortgagor ob- ing done all he could towards posses- tained an advance on a mortgage of sion, was entitled to priority over the the cargo so transshipped and con- fourth. Feltham v. Clark, 1 De Gex signed, without notice of any charge & Sm. 307. thereon but that of the consignee's en. XLVI.] REGISTRATION OF MORTGAGES. 485 rights of the parlies, of the mortgagor's removal and the removal of tlie property from the place of his residence at the time of executing the mortgage, and the necessity of a new registration in his new place of abode, (a) § 28. It is held that registry laws can have no force beyond the jurisdiction of the sovereignty enacting them. Ilencc the record of a mortgage in Canada is no notice to creditors who find the property in the mortgagor's possession in Micliigaii. And neither the statute of Canada nor of Michigan dispenses with the necessity of possession by the mortgagee, except where notice can be rendered effectual by recording the mort- gage.^ So a mortgage, appearing on its face to have been executed in another State, will not be upheld to defeat the title of an innocent purchaser in Indiana, though shown to have been recorded in the county where executed, it not being valid at common law, and not shown to be valid by the lex loci contractus P- § 29. But, in Ohio, notwitlistanding removal of the property to another State, the record is effectual to sustain the mortga- gee's title.^ So where the property is in Massachusetts, but the parties to the mortgage are citizens of Rhode Island ; it is 1 Montgomery i-. Wight, 8 Mich. 143. » Kanaga v. Taylor, 7 Ohio (N. S.), 2 Blystone v. Burgett, 10 Ind. 28. 134. (a) In Indiana, the principal office sided at the time, and he afterwards within the State of a corporation niort- removes to another town, taking the gagor, and not the situs of the propertj', property with him, tlie statute does determines the county of residence, not require the mortgage to be again Wright V. Bundy, 11 Ind. 308. recorded in the latter town. Barrows In Iowa, the constructive notice of v. Turner, 50 Maine, 127. recording extends to whatever county A mortgage, made by joint owners or State the property may be removed residing in different towns, is invalid to. Smitii V. McLean, '24 Iowa, 322. as against third persons, unless recorded In Maine, the statute requires tiiat in each of the towns. Ixicii v. Roberts, a mortgage of property exceeding a 50 Maine, 395. specified value shall be recorded in the Where a creditor of one of the mort- town in whicli the mortgagor resides, gagors has attaclied the property, the If a case discloses nothing as to resi- holder of a second mortgage, duly re- dence, the validity of the mortgage is corded, but not until after the attach- not established. Bither v. Buswell, 51 mcnt, cannot maintain an action against Maine, COL the officer until the attaciiment is re- If a mortgage has been recorded in leased or dissolved. Ibid, the town in wliich tlie mortgagor re- 486 THE LAW OP MORTGAGES. [CH. XLVI. sufficient that the mortgage be executed and recorded accord- ing to the laws of Rhode Island, as against an attaching cred- itor living in Rhode Island.^ § 30. In New Hampsliire it has been held, that, where a mort- gage is made out of the State, and is valid according to the laws of the State in which it is executed, and the property is after- wards removed to New Hampshire, no registration is neces- sary .^ Upham, J., says : ^ " The property was there, the contracting parties were there, and, on every principle, the lex loci governs. The property then passed by the mortgage, vesting the title conditionally in the plaintiff. Numerous cases have been cited in the conflict of laws betwixt different gov- ernments, but the case does not seem to us properly to involve a question of that description. The conveyance in Massachu- setts, under the laws of that State, raised no conflict with our laws here ; neither did the removal of the property within this jurisdiction. It is strictly a question as to the effect of our laws on property for the first time brought within our jurisdiction. Where did the mortgagor reside when this mort- gage was made? Confessedly not within the limits of this government ; but it so happens that in the town where he did then reside, the mortgage was duly recorded ; but whether this had been so or not, if the conveyance had once become legally a mortgage, it would after that time, for aught that appears in our statute, always remain a mortgage. The mov- ing of the property from place to place, whether within our own limits, or from a foreign government here, does not con- travene any of the provisions of this act. The law is silent upon the subject." He proceeds to remark, that the requisi- tion of registry is an exception to the general rule, by which the simple execution of an instrument passes the title, and cannot be implied, and that a contrary doctrine would enable a mortgagor at any time to defeat the mortgage by removing to another place. A creditor is bound to know that his debtor has removed from another town or State. § 31. In the same State it has been held, that, if the mort- 1 Rhode Island, &c. v. Danforth, 14 2 offutt v. Flagg, 10 N. H. 46. Gray, 123. 3 Ibid. CH. XLVI.] REGISTRATION OF MORTGAGES. 487 gagor of goods within the State resides out of the State, at the time of making the mortgage, the mortgage is invalid against creditors of the mortgagor, without delivery and possession, unless in case of actual notice ; that symbolical possession is insufficient ; and that there must be the same delivery and jjos- session as in case of absolute sale.^ Parker, C. J., says : ^ " The record in the town clerk's office, provided for by the statute, is a record within this State, and not within another government. The second section of the act makes it the duty of the town clerks to record such mortgages ; and it is very clear that this provision cannot apply to town clerks out of the State, even in those governments where such an office exists. It is by no means clear that notice will answer the purpose, in cases where no record can be made under the stat- ute of 1832. If notice is merely equivalent to a record, the inquiry arises, what is the effioct of a record ? and if that can have no effect, because none can be made, a notice may be in- operative." § 32. If the mortgagor, after making the mortgage, change his residence to another town ; no new registration in that town is necessary.'^ Wood, J., after remarking that at com- mon law the mortgagor's possession is only evidence of fraud, proceeds as follows : •* " The object of the statute was to give publicity to such conveyances, and to provide sources of in- formation common to all persons, in order to enable pur- chasers, and creditors, and all others, to determine with some degree of facility, convenience, and certainty, the question of title to property, which they may be interested to know ; while, at the same time, it was not among the purposes of the act to subject the bond fide mortgagee, who is of course a creditor, to the inconvenience, if not impracticability, of the constant vigilance and ceaseless watching which would be requisite to guard and secure his interests, if he were obliged to record his mortgage in every town into which the mortgagor might see fit to remove with the property to reside ; and that, too, before 1 Smith V. Moore, 11 N. H. 55 ; Mass., Law Rep. April, 1849, p. 558 ; Winsor v. McLellan, 2 Story, 492. Wliitney v. Ileywood, Mass., Oct. 185'0, 2 Ibid. 64. Law Hop. ,^\x\y, 1852, p. 109. s Hoit V. Remiek, 11 N. H. 285 ; * Iloit v. Remick, 11 N. H. 289. Bigelow V. Weaver, Sup. Jud. Ct. 488 THE LAW OF MORTGAGES. [CH. XLVI. his creditor should seize the property by process of law, or the mortgagor should pass the title to it by way of sale, to some innocent purchaser." § 38. A mortgage, made in Alabama, the residence of the mortgagee, by an inhabitant of South Carolina, of property in the latter State, need not be recorded in the former.^ § 34. The Alabama Act of 1823, requiring a mortgage of property, which may be removed there from another State, to be recorded within twelve months, makes such property, in the absence of a record, liable to the debts of the party in possession, but does not apply to purcliasers without notice.^ § 35. In New York (by the Laws of 1833, p. 402), personal mortgages were required to be filed (except in the city of New York and county towns), in the clerk's office of the city or town where the mortgagor resided at the execution of the mortgage, if he was a resident of the State ; if not, in that of the city, &c., where the property then was. Held, a title could not be maintained under such mortgage, as against a purchaser upon an execution against the mortgagor, where there was no evidence as to the residence of the mortgagor when it was exe- cuted.^ But the mortgagor may be a resident of another town at the time of filing.^ § 36. In Kentucky, if a mortgage is made and recorded in one county, and the mortgagor comes to another county, where he resides, and sells the property to a bond fide purchaser, the latter shall hold against the mortgage.^ § 37. Before the Act of 1820, as to registration, a mortgage, made in 1819, and recorded within eight months, in the county where the mortgagor resided, and where a part of the property was at the time, is valid as against a subsequent purchaser, who was not, at or after the date, in such county.^ (a) 1 Fisliburne v. Kimhardt, 2 Speers, * Hicks v. Williams, 17 Barb. 523. 556. 5 Vaughn v. Bell, 9 B. Mon. 447. 2 Beall V. Williamson, 14 Ala. 55. 6 Singleton v. Young, 3 Dana, 559, 3 Smith V. Jenks, 1 Denio, 580. (a) The Statute of Illinois, requiring gress of July 29, 1850, requiring mort- inortgages to be acknowledged, and re- gages of vessels to be recorded with the corded in the county office where the collectors of customs. JEtna w. Aldrich, mortgagors reside, is not in conflict 26 N. Y. (12 Smith) 92. with or superseded by the Act of Con- CH. XLVI.] REGISTRATION OF MORTGAGES. 489 § 38. Under the registry law of Virginia, of 1792, a mort- gage of personal projjerty must be recorded in tlic General Court, or the County Court of the county wliere the grantor resides at the time of its execution, or it will be void as to creditors ; and it is not sufficient to record the same in the County Court of the county in which the property is, the grantor residing in a different county.^ So, where a mortgage of slaves was recorded in one county, the slaves being at the time of making and recording the mortgage in another county, and they were afterwards removed to the former, but the deed was not recorded anew ; a second mortgage, made and recorded in the former county was held, under 1 Rev. C. ch. 90, § 11, to prevail over the first.^ Brockenbrough, J., says : ^ " The statute provides, that every deed of trust of personalty, which ought to be recorded, shall be recorded in the court of that county in which such property ' shall remain.' At the time the deed was recorded in Southampton, and between that period, and that in which the slaves were carried to Southamp- ton, the deed was void as to purchasers, &c., because the slaves ■were remaining in a different county, namely, Sussex. Did the subsequent removal of them to Southampton, give life and energy to the deed which had been void before ? I think not. In what clerk's office would a purchaser of these slaves, or a creditor of Cooper, look for a deed passing the title to some one else ? Certainly he would examine the Sussex office, because in that county the slaves were abiding. When, at a posterior period, they were removed to Southampton by the visible owner of them, he would not look to the registry of deeds in that county, at any prior time ; because, during such prior time, tlie slaves were not there, and he could not expect to find any deed for slaves that were not remaining there ; that is, residing or abiding there. The recording of the deed in Soutliampton l^efore the slaves were removed, was not con- structive notice to purchasers and creditors." § 39. A mortgage of slaves was valid in Mississippi, though • Bond i". IMewburn, 1 Brock. 31G. 2 Lane i*. Mason, 5 Leigh, 620. 3 Ibid. 521, 522. 490 THE LAW OF MORTGAGES. [CH. XLVI. not recorded there, if executed in a State where the master and slaves then resided.^ (a) § 40. Mortgage of a slave with other chattels in Georgia, where both parties resided, to secure a note payable in six months. The mortgage was not recorded within the time pre- scribed by law, and the mortgagor remained in possession. The note was discounted in bank, partly paid when due, and renewed for the balance by another note at six months. Before maturity, of the second note, the mortgagor removed the slave to Soutli Carolina, and sold him to a bond fide purchaser, whose bill of sale was never recorded. The mortgagee paid the new note before maturity, seized the slave in South Carolina, carried him back to Georgia, had his mortgage recorded, and afterwards foreclosed. Held, the purchaser might maintain trover against the mortgagee. 2 § 41. Where the statute requires registration in the town in which the mortgagor resides, registration in the town where the mortgagee resides is of no avail.^ (5) § 42. A statute, requiring registration in the town where the mortgagor resides, and also in that in which he transacts his business, does not apply to a mortgage made out of the State, though by a citizen of the State."^ (c) § 43. Nice questions have arisen in regard to the form of registration of mortgages of personal property. The general principle seems to be established, that the statutory requisi- 1 Barker v. Stacy, 25 Miss. 471. ^ Stowe v. Meserve, 13 K H. 46. 2 Ryan V. Clanton, 3 Strobh. 411. * Langwortliy v. Little, 12 Cush. 109. (a) A deed of trust executed in Mis- creditors in Kansas. Golden v. Cock- sissippi and recorded in Louisiana, ril, 1 Ivans. 259. which expresses that it was given to (c) -A. mortgagee who, in pursuance secure a certain amount, and also future of an agreement with the mortgagor, has advances, cannot be enforced in Louisi- omitted to file his mortgage, in order ana, to the prejudice of other mort- to impose upon subsequent creditors gage creditors, except for the amount and mortgagees, contrary to the pro- specified. Bowman v. McKleroy, 14 visions and spirit of the (N. J.) act, can La. An. 587. claim nothing against a subsequent (6) The registration of a mortgage mortgagee who has actually advanced in Missouri, the residence of mortgagor money, although he has by mistake re- and mortgagee, when the property is corded his mortgage in the wrong coun- in Kansas, is not sufiicient notice to ty. De Courcey i^. Little, 4 Green, 115. CH. XLVI.] REGISTRATION OF MORTGAGES. 491 tions must be strictly complied with, in order to make the mortgage effectual against third persons, (a) § 44. Where it is not expressly prescribed by law, within what time a chattel mortgage shall be filed, such mortgage cannot be declared void because it was not filed at the time of its execution.^ § 45. It has been held in Maine, that, in order to be legally recorded, under the Revised Statutes, ch. 125, §§ 32, 33, the time of receiving a mortgage must be noted by the clerk, both in the book of records and on the mortgage.^ In support of this opinion, Whitman, C. J., makes the following remarks upon the language of the statute : ^ " The Revised Statute, ch. 125, §§ 32, 33, requires that all mortgages of personal estate, made as collateral security for any debt, exceeding thirty dollars in amount, shall be recorded in the clerk's office of the town where the mortgagor resides, unless accompanied with actual possession by the mortgagee ; and, unless so re- corded, that the same shall be void, except as between the parties thereto. The statute provides, that ' it shall be consid- ered as recorded when left as aforesaid with the clerk.' The clerk, on payment of his fees, shall ' record all such mortgages, in a book kept for that purpose, noting in the book and on the mortgage, the time when the same was received.' In cases of mortgages of real estate (Rev. Stat. ch. 11, § 17), the register, 1 Ilicks V. Williams, 17 Barb. 623. See Paine v. Mason, 7 Ohio (N. S.), 198. 2 Handley v. Howe, 9 Sliepl. 5G0. » Ibid. 561-5G3. (n) If the niortjiagor and mortgagee' clerk, with orders not to record it until write their own names in the body of further notice, and not in fact recorded, the affidavit to a mortgage, this is not is not recorded if the notice has not a compliance with the (Maine) statute, been given, even though the clerk may which requires that they shall make have noted thereon the time of receiv- and subscribe the affidavit. Stone v. ing it. Town v. Griffith, 17 N. H. Marvel, 45 N. H. 481. 165. In Illinois, where a mortgage is lost A delivery of a mortgage to tho before being recorded, the mortgagee town-clerk for record, without knowl- cannot protect himself against an exe- edge of the mortgagee, more than a cution by recording a copy certified year after the mortgagor has agreed to by tlie justice before whom the original secure his debt by such a mortgage, is was acknowledged ; the copy not being not necessarily a valid delivery of tho acknowledged. Porter v. Dement, 35 mortgage, but is evidence of such de- 111. 478. livory. Jordan v. Farnsworth, 15 Gray, A mortgage delivered to the town- 517. 492 THE LAW OF MORTGAGES. [CH. XLVI. at the time of receiving any deed to be recorded, ' shall make a memorandum thereon of the day, and the time of the day, when it was received and filed ; ' after which it is to be consid- ered as recorded. When the legislature, in reference to per- sonal estate, superadded to the noting on the mortgage, the noting of the same in the book, did they not mean that these should be simultaneous acts ? What was the object of this noting in either case ? It must have been to enable persons, not parties to the deed, to ascertain when the property actually passed. The noting in the book was much better calculated to subserve this purpose, than the mere noting, upon the mort- gage, of the same circumstance. Individuals applying to ascer- tain if their debtors had conveyed away their property would naturally look to the record ; and as the law provides for noting ' in the book,' if no record was made, recourse would be had to the noting ' in the book ; ' and, if no such noting or record of a conveyance were found, the conclusion might well be, that none existed. The legislature has prescribed both of the notings, as it were, in the same breath ; and this would seem to indicate that they were to be simultaneous. We can have no authority for saying, that either of the notings pre- scribed was to be a substitute for the actual recording, more than the other." § 46. The following more recent case in the same State, though in some points a little obscure, may be cited as bearing upon the proper construction of the same statute. In Holmes V. Sprowl,^ it was objected on behalf of an attaching creditor, that it did not appear that the clerk noted the time when the mortgage was received, either on the mortgage, or on the book kept for that purpose. The Court, in overruling the objection, remark : ^ " The object to be accomplished was the recording of the mortgage, to give notoriety to the transaction. By the noting in the book, and on the mortgage, the time when the mortgage was received, it was to be considered as if it was re- corded when left with the clerk. The subsequent recording had relation back to the time of noting, and the mortgage was to be considered as recorded at the time stated in the noting. 1 31 Maine, 73. 2 ibid. 75. CII. XLVI.] REGISTRATION OP MORTGAGES. 493 The phrase, ' and it shall be considered as recorded when left as aforesaid with the clerk,' must mean, that the reception of it and the noting by tlic clerk should be considered as having the same effect as if the recording took place at the time of the delivery, and that it would be valid, although it was not recorded until a subsequent time. If it is recorded, that is a compliance with the law, and if it is wholly extended upon the record, and the time stated, before third persons acquire any riglit to the property, the interest of the mortgagee is secured. If a mortgagee would go back to an earlier time than that stated upon the record when his mortgage was re- corded, and claim from the time when his mortgage was first left, he can only do so by showing the time noted in the book and upon the mortgage." § 47. In New York, a person having charge of the town clerk's office, there being at the time no town clerk, received a mortgage which was brought there to be filed, and indorsed it filed, with the date, and })laced it on file. Held, a valid filing.^ § 48. A statute of New York (1837, p. 403, § 3) provided, that, " every mortgage filed in pursuance of this act shall cease to be valid as against the creditors of the person making the same, or against subsequent purchasers or mortgagees, in good faith, after the expiration of one year from the filing thereof; unless within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, togetlier with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him, by virtue thereof, shall be again filed in the office of the clerk or register aforesaid of the town or city where the mortgagor shall then reside." § 49. Statutes of this nature are to be strictly construed.^ Filing is necessary, though the mortgage by its terms has become absolute.^ Where such second copy was filed, it was held that the mortgage ceased to be valid after a year from such filing, unless a third copy was filed within thirty days 1 Bishop V. Cook, 13 Barb. 326. 2 Ely I'. Carney, 3 E. D. Smith, 489. 3 Ibid. 494 THE LAW OP MORTGAGES. [CH. XLVI. before the year expired ; and that Sunday should be counted as one, though the last of the thirty days.^ § 50. Under that statute, each copy filed is considered a new- mortgage.^ § 51. A mortgagee of chattels, the original mortgage having been filed in the town clerk's office within thirty days prior to the expiration of a year from the time of filing, procured an indorsement of the words, " refiled and renewed," with the date, to be made thereon, which was signed by the clerk. Held, not a sufficient statement of " the interest of the mort- gagee in the property " under Stat. 1833, p. 403, § 3, and that the mortgage, at the expiration of the year, became invalid as against the creditors of the mortgagor.-^ But where a mort- gagee of chattels advertises them for sale under a power of sale in the mortgage, previous to the expiration of one year from the filing of the mortgage ; this excuses him from filing the mortgage within thirty days previous to the expiration of the year, as required by the third section of the act (Laws of 1883, p. 402), in relation to chattel mortgages.* § 52. This section is applicable, only where the mortgagee allows the mortgagor to continue in possession after the expi- ration of the year, without taking the property into his actual possession, or adopting some proceeding to enforce a forfeiture, or to sell the equity of redemption previous to the expiration of the year from the filing.^ § 53. In the same State the term " subsequent," in section 3, of the act requiring mortgages to be filed, Bennett v. Williamson, 5 Jones, Law (S. C), 464. 307. CH. xlviil] assignment, payment, etc. 539 recovered the value of the property from the mortgagee, upon the ground of fraud against creditors. Held, the mortgagee might maintain an action u])on the mortgage notes. ^ § 18. A mortgage may also be dischta-gcd or released, as well as paid ; and this either by a direct and express instrument, executed for the purpose, or by construction and implication of law, arising from other acts of the parties. § 19. A mortgage of indemnity to sureties is discharged by the creditor's discharging the sureties.^ So a mortgagee, hav- ing agreed with the mortgagor to discharge his incumbrance for the benefit of a purchaser, signed and sent to the mort- gagor a written instrument, agreeing to discharge the mortgage and hold the purchaser harmless in relation to it. Tiic mort- gagor delivered this paper to the purchaser, who carried it to the town clerk's office where th§ mortgage was recorded ; and the clerk made, signed, and attested the following entry on the margin of the record : " This mortgage, having been duly can- celled by the mortgagor, and an order for discharge given by the mortgagee, therefore, this record is made." Held, this was evidence, from which the jury might infer a bond Jide discharge of the mortgage.^ § 20. But where parties to a mortgage executed an agree- ment, which was indorsed thereupon, that, in case of a sale by the mortgagor of any of the property, the mortgagee should discharge all claim to that portion of it, upon receipt of the money therefor ; held, this agreement was a conditional one, and did not authorize the mortgagor to defeat the mortgagee's title by a sale, unless the condition was performed by payment of the price to the latter.* § 21. A question sometimes arises, as to the effect upon a mortgage of other security in the mortgagee's hands for the same debt ; or of a change in the original form of the mortgage debt. It is held, that a judi/inent, confessed by the mortgagor to the mortgagee for the mortgage debt, does not merge or cx- 1 Whitney v. Willard, 13 Gray, Nov. T., 1850, Law Rqp., Aug. 1852, 203. p. 225. '^ Sumner v. Baclieldcr, 30 Maine, * Wliitney v. Ileywood, Mass. S. J. 35. C, Oct. T., 1850, Law Kep., July, 1852, 3 StowcU V. Goodale, Mass. S. J. C, p. lOy. 640 THE LAW OP MORTGAGES. [CH. XLVIII. tinguish the mortgage, where by agrecnieut it is taken only as collateral.' Johnson, J., says : ^ "It may^ perhaps well be doubted whether the judgment was a security of a higher nature than the personal mortgage ; and even if it were, whether it would operate to extinguish the mortgage and di- vest the mortgagees of the title they had acquired under it. It will scarcely be contended that in case the notes in question had been secured by a mortgage upon real estate, a judgment upon them would have extinguished such mortgage. And yet a mortgage upon real estate is a mere security and incum- brance upon the land, and gives the mortgagee no title or estate therein whatever, whereas a personal mortgage is more than a mere security. It is a sale of the thing mortgaged, and operates as a transfer of the whole legal title to the mortgagee, subject only to be defeated by J,he full performance of the con- dition. And if it be conceded that a judgment upon the original indebtedness would not extinguish a collateral secu- rity for its payment upon real estate, I do not see how it could divest a title to personal property acquired by purchase. A vested legal title, whether in real or personal property, is the highest of all securities ; certainly higher than the mere lien of a judgment upon land, or the right of a plaintiff to personal property acquired by levy under an execution. The debt is not yet satisfied. The notes may have been cancelled, but the debt w^fis not, and until that is done, it seems to me that all mere collateral securities, whether upon real or per- sonal property, should be allowed to stand ; especially titles to property acquired under instruments where the parties stand in the relation of vendor and purchaser without fraud. The rule that security of a higher nature extinguishes inferior se- curities will be found, I apprehend, only to apply to the state or condition of the debt itself. It has never been applied, and I think never should be, to the extinguishment of distinct col- lateral securities, whether superior or inferior in degree. These are to be cancelled by satisfaction of the debt or voluntary sur- render alone." (a) 1 Butler V. Miller, 1 Comst. 490. 2 ibid. 499, 500. (a) In a previous hearing of the 412): "The judgment, which is a same case, Jewett, J., says (1 Denio, higher security than the notes and CH. XLVIII.] ASSIGNMENT, PAYMENT, ETC. 541 § 22. But where execution was issued upon tlie judgment and levied upon the chattels mortgaged, which were advertised for sale under it, and, after the same property was sold upon another execution against the mortgagor, the mortgagees moved the Supreme Court for an order directing the sheriff to apply the proceeds of the sale upon their execution ; held, in an action of trover by the mortgagees against the sherilf, tlicse acts were repugnant to any claim under the mortgage, and the plaintiffs could not prevail,^ Johnson, J., says:^ " When they voluntarily placed their execution in the hands of Reynolds, the deputy, with directions to him to levy upon this property and sell it, they certainly to that extent unequivocally con- sented to its being treated as Vandcrpool's. And had they afterwards stood Ijy and suffered it to be sold without oljection, they would have been estopped for ever from asserting their title or claim under the mortgage." The learned judge pro- ceeds to decide, that the mortgagees might revoke their assent to the sale at any time before it actually took place : but, one of the plaintiffs having bid off a part of the property, and they having insisted that the money in the sheriff's hands should go first to satisfy their execution, and then moved the Court, as above stated ; they were precluded from asserting their title as mortgagees, though the application was denied.'^ » Butler V. Miller, 1 Comst. 497. 2 Ibid. 502. 3 Ibid. 503, 504. mortgage, or either of them, was be- the mortgage the payment of the debt twecn the same parties. It was, so far due to the plainliffs was postpoued to as the plaintiffs, the mortgagees, are the first of October, and did not include concerned, lor the same debt, and this tlie debt due to Sickles ; and the fact appears upon the face of the securities, that the judgment was payable im- Does not the law presume that the mediately, and included the debt to judgment was taken in satisfaction of Sickles ; that Vanderpool consented the original debtl I am of opinion to an immediate execution, which was that it does. But if such presumption issued and levied upon all of tiie mort- cannot be indulged, do not the circum- gaged property, being all that Vandcr- stances attending the transaction prove pool possessed which was liable to satisfactorily that it was the intent of execution, and that, too, within a few the parties, originating in some cause, days subsequent to the making the known and appreciated by them, to mortgage, forces me to the conclusion give and take a new security for the that the parties intended to substitute old one? I cannot persuade my?elf the bond and judgment for the notes that they did not. The fact, that by and mortgage." 642 THE LAW OF MORTGAGES. [CH. XLVIII. § 23. Mortgage of machinery, owned in common by the mortgagor and another, to secure $2500. The mortgagee as- signed his mortgage to the firm of wliich he was a member, and the other owner sold his interest to the same firm. The mortgagor during his life used the machinery in manufacturing goods, wliich he sent to the firm, for sale on commission, they making advances thereupon. When he first sent such goods, the firm charged the ) with regard to the latter of which, it is well settled, that the pledgor incurs no forfeiture by failure to pay the debt, but the pledgee has the right to sell the property and pay himself from the proceeds, and is bound to account for the balance. § 2. In the case of Kimball v. Marshall,^ Richardson, C. J., remarks : '*• There is very little in the books on the subject of 1 8 N. H. 292, 293. O (a) See Appendix, No. 2. Also, v. Lewis, ib. 25; Phillips i'. Hunter, Winchester v. Ball, 54 Maine, 558; 22 Mis. 485; Sullivan i'. Iladley. 16 Bacon v. Kimmel, 13 Mich. 201 ; Bry- Ark. 129 ; Mosely v. Crocket, 9 Rich. ant i;. Carson, 3 Nev. 313 ; Kea v. Eq. 339. Council, 2 Jones, Eq. 345 ; Robinson (6) See Appendix, No. 1, § 38. 660 THE LAW OF MORTGAGES. [CH. L. mortfragcs of personal property ; and what there is, is so inter- mixed witii the law of property pledged, that it is necessary to see in what circumstances mortgages and pledges agree, and in wiiat they differ. When property is pledged, the title of the pledgor does not pass. The pledgee acquires only a special property ; a right to the possession until the purpose of the pledge is answered. And possession is essential to the validity of a pledge. Tlie mortgage passes the title unconditionally, and possession is not essential to its validity. If the pledge be for an indefinite period, the pawnee has a right upon request to a prompt fulfilment of the engagement ; and if the pawner neglects or refuses to comply, the pawnee may, upon demand and notice, require the pawn to be sold. He may file a bill in equity against the pawner for a foreclosure and sale, or he may proceed to sell, ex mero motu, upon giving due notice to the pledgor. And the law is the same, when goods are mort- gaged, if no time of redemption is fixed by the agreement of the parties." § 3. The following are some of the dicta, which may be considered as expressing the prevalent rule of law upon this subject.^ It will be observed that, while all of them recognize the doctrine of an absolute forfeiture at laiv, some of them sustain the right of a redemption m equity/. § 4. " The legal effect and operation of a mortgage of per- sonal property, after the condition is forfeited, is to invest the mortgagee with an absolute interest in the property mort- gaged." 2 § 5. " After the condition forfeited, the mortgagee has an absolute interest in the tlnng mortgaged."^ § 6. "A mortgagee of personal property, upon the failure of the mortgagor to perform the condition of the mortgage, ac- quires an absolute title to the chattel. This is well estab- lished to be the legal effect and operation of a mortgage of personal property." ^ 1 See Butler v. Miller, 1 Comst. 2 Pgr Thacher, J., Thornhill v. 496 ; Bank, &c. v. Crary, 1 Barb. 548 ; Gilmer, 4 Sm. & M. 163. Sumner v. Batchelder, 30 Maine, 39 ; * Brown v. Bement, 8 John. 98. Dane v. Mallory, IG Barb. 46 ; Nichols * Per Sutherland, J., Laugdon v. V. Webster, 1 Chand. 203 ; Talbot v. Buel, 9 Wend. 83, 84. De Forest, 3 Iowa, 586. Cfl. L.] FORECLOSURE AND UEDEMPTION. 5G1 § 7. " After the coiulitiou forfeited, the mortgag-ec had an absolute interest in the thing mortgaged. This is the legal effect and operation of a mortgage of [)ersonal propertv." ^ § 8. In Patchin v. Pierce,- the defendant, in an action of trespass for taking personal property, relied upon a mortgage, the condition of which was broken before the taking. The plaintiff relied upon an agreement, made the day before the taking, to extend the time of payment, and wait three weeks before taking the property. Nelson, J., says : ^ "After the default in {payment of tlio money secured by the mortgage, the title to the property became absolute in the mortgagees. Notwithstanding the forfeiture and perfection of the title in the mortgagee in such a case, I have always supjmsed, and have no doubt, that in equity, upon well-settled principles, the mortgagor has the right to redeem. If such remedy did not exist, there might and would frequently be an enormous sacri- fice of property. It seems, however, that the right to redeem may be foreclosed, without judicial proceedings, by a sale of the property, as in the case of a pledge, upon reasonal)le no- tice to the mortgagor. Tender of the money after forfeiture does not operate to reinvest the title in the mortgagor, so as to enable him to recover at law. If the money be accepted, I tliink it would have that effect, as the acceptance would be considered a waiver of the forfeiture, the act of the parties being susceptible of no other construction. But the acceptance of a part of the money secured by the mortgage would not authorize such an inference, and the establishing of a rule, that the payment of a part should be considered a waiver of the forfeiture, would be as inconvenient to one party as to the other, as it would necessarily embarrass all partial |)aymcnts. It cannot be contended that the acceptance of a i)art of the money would discharge the mortgage ; and if it would not, the rule would be of no essential importance to the mortgagor, for a subsequent demand of the balance due and refusal to pay would create a new forfeiture. Besides, in most cases of mort- gages of personal property, the mortgagee, by the very terms 1 Per Woodworth, J., Ackley v. 2 12 Wcml. Gl. Finch, 7 Cow. 2'J2. ^ Ibid. U2, 03. VOL. II. 86 562 THE LAW OP MORTGAGES. [CH. L. of tlio instrument, is entitled to possession at liis option, until the money be paid. Tiie promise by tire defendant to wait three weeks for payment, or to wait that length of time before he would take the property, was without consideration, and therefore a nudtmi 'pactum^ § 9. In a case involving the effect of a mortgage of groiving grass as personal property, disconnected from the land, Paige, J., remarks : ^ " The mortgage, at the time of the levies and sales, had not become absolute, by the failure of the mortgagor to perform the condition. Crary (the mortgagor) was the owner of the fee of the land, and also the legal owner of the growing grass, and had the right of possession of the grass, and an interest therein, initil its forfeiture by his non-perform- ance of the condition. The grass was not, therefore, by the mortgage, severed in law from the freehold and converted into personalty. After the forfeiture of the condition of the mort- gage, as the mortgagee would have acquired an absolute title to the mortgaged property, there would undoubtedly have been a severance, in contemplation of law, of the grass from the land, and it would have then become the personal property of the mortgagee." § 10. The following cases may be cited, as illustrating the point now under consideration, although some of them un- doubtedly depend upon considerations peculiar to a pledge, and cannot be regarded as applicable to a mortgage, in the strict sense of that term, (a) 1 Bank, &c. v. Crary, 1 Barb. 545, 546. (a) Judge Story says (2 Story's Eq. The same author remarks: "The § 1031), the mortgacjor may maintain pledgee might, according to Glanville, a bill in equity to redeem, within rea- at any time bring a suit at the common sonable time. So, in case of pledge, law to compel the pledgor to redeem the debtor may redeem in reasonable by a given day ; and, if he did not then time after a breach of condition. If no redeem, he was for ever foreclosed of time of payment were fixed, he may his right. But the course now adopted redeem at any time during his life, or is, to bring a bill in equity to foreclose his executors after his death, unless and sell the pledge ; in which case, an payment has been demanded. In gen- absolute title passes to the vendee. It eral, no bill in equity can be main- has been also said, that the pledgee tained. Otherwise, where an account may, after the time for redemption has or discovery is sought, or the pledge passed, upon due notice given to the has been assigned. (Ibid. § 1032.) pledgor, sell the pledge without a judi- CH. L.] FORECLOSURE AND REDEMPTION. 563 § 11. One possessed of an cxchcqnci' annuity, for ninety- nine years, borrowed money upon it, and, for securing this money, there was an absohite transfer of the annuity, but with a defeasance, that, if the money were paid at such a day, the assignment should l)e void. The money was not paid at the day ; upon which the lender frequently desired the money, and gave notice that he would sell, and appointing a time for that jnirpose desired the borrower to be present to see that tiic annuity was sold at the full value. The borrower, by letter, desired that the lender would stay a week longer before he sold, which was also complied with ; and then the lender dying suddenly, the defendant, his administrator, sold the annuity at the exchange, by a sworn broker, for the full value that those annuities then sold for, and which was less than what the money due to the defendant amounted unto. These an- nuities afterwards rose in value; whereupon the mortgagor brought a bill to redeem, or to compel the defendant to pur- chase another annuity on the same fund, and of the same yearly value, to be transferred to the mortgagor, on his pay- ment of principal and interest. Lord Chancellor : " Here is no express power to sell ; and annuities for ninety-nine years are like rent-charges out of lands, and not like stocks, which may be thought to be of imaginary value ; and there being no decree for foreclosing the mortgagor, nor any agreement in writing that the mortgagee should sell ; let the defendant pro- cure an annuity of the like value, and upon the same fund, to be conveyed to the plaintiff upon his payment of the principal and interest to the defendant ; and let the Master comj)ute what is due for principal and interest." From which decree an appeal was brought in the House of Peers, where it was insisted, that these exchequer annuities, as well as stocks, were usually sold at the exchange, and that this was as but a pawn ; and though there was no express power to sell in the defeasance, yet by the mortgagor's letter, it was plainly sub- mitted to, when the mortgagor desired the sale might be deferred for a week ; that the convenience of the securities cial decree of sale." (Ibid. § 1033). tclyou r. Lansinp, '2 Caines, Cas. in Kr. See, for a. learned view of the subject 200. Sec also De Lisle v. rriestman, of redemption in case of pledge, Cor- 1 Browne, 183. 564 THE LAW OF MORTGAGES. [CH. L. among merchants, was, that after tlie day of payment past, they were to be taken to be ready money ; and that it would be infinitely troublesome and dilatory, if there could be no sale of such annuities thus pledged, without a decree of fore- closure ; that this would set aside several sales that had been made in the like cases, and occasion multiplicity of suits ; that the case here was the stronger, it being that of an adminis- trator, who was obliged to dispose of the assets of the intestate to pay his debts and legacies. Wherefore the decree was re- versed by the Lords nemine contradicente} § 11 a. Bill, brought in 1729, by the plaintiff, as executor of Sir Thomas Cooke, to redeem the sum of ,£2500 East India stock, transferred to the defendant April 1, 1708, for securing X2000 and interest ; the defendant having obliged himself by a defeasance to rctransfer the stock upon payment of the debt and interest on the 2d of July next. Sir Thomas Cooke died in 1709. Lord Chancellor : " This is a very plain case for the defendant. In a mortgage of land, a bill of foreclosure ought to be brought, but on a mortgage of stock it is not necessary, and therefore a strong reason for the mortgagor's departing from the right. The admission of a co-defendant to the advantage of the plaintiff, will by no means better the case, unless the plaintiff had entered into proof, by which he would infer some other kind of evidence to account for his coming so late to redeem. It would be of mischievous consequence if I should decree a redemption in this case, for the bill would never have been brought, if the East India stock had not in- creased in value, which is merely an accident, and could not be foreseen at the time the mortgage was made, and therefore is very far from being an inducement to decree a redemption." His Lordship dismissed the bill.'^ § 11 5. A bill in equity was brought by an assignee under a commission of bankruptcy against Cordwell, for the redelivery of jewels and plate pledged by him to the defendant, who liad also given a promissory note for the delivery over of those goods to the assignee, or the value of them, upon the as- 1 Tucker v. Wilson, 1 P. Wms. 260. 2 Caines, Cas. in Er. 210. So, also, (This is said to be a case not of pledge Kemp v. Westbrook, infra, § 13, ib.). hut of mortgage. Cortelyou i'. Lansing, '^ Lockwood i'. Ewer, 2 Atk. 303. CH. L.] FORECLOSURE AND REDEMPTION. 5G5 sigiieo's paying him all that was due. Tlic .Statute of Limita- tion was relied upon in defence. Lord Chancellor : " There is no color for the statute's being a bar to this demand ; no time being given for redemption. Cordwell had time during life to redeem. Then so had the assignee till tender or payment of the money ; before which, on the face of the note, trover would not lie. It is something like the case of a remainder-man expectant on an estate for life or years, to whom a right to enter or bring an ejectment is given by the forfeiture of the tenant for life or years ; yet he is not bound to do so ; there- fore if he comes within his time after the remainder attached, it will be good ; nor can the Statute of Limitations be insisted on against him for not coming within twenty years after his title accrued by forfeiture. I will not say in general, that there is a right to come into equity in every case to redeem pledged goods ; yet there are cases where it may be. As the pawnee of stock is not bound to bring a bill of foreclosure of the equity of redemption of the stock, but may sell it, and not- withstanding, tlie mortgagor may bring a bill here, for an ac- count of what is due, and to have a transfer to him. But there is a strong reason for it in tiiis case ; the plaintiff, being an absolute stranger to what is due, has a right to come here to know it, in order to make a tender, which he cannot do with- out tendering the precise sum ; and therefore could never make it, if not allowed to come here first to know that sum." ^ § 11 c. The following case bears more particularly upon the right of tacking^ but also illustrates the general right of redemp- tion. Bill by a widow and executrix to redeem securities pledged by the testator to bankers. It appeared that the tes- tator borrowed XIOOO, having then £400 in the bankers' hands, and gave his note, with a deposit of bonds and other securities, as a pledge for repayment. These securities were often changed by the testator, and, when one was taken away, another was substituted. The testator owing the .£1000 and about £400 on his banking account, the bankers required an assignment of the securities, and the testator prepared a bond and deed-poll for securing £1000, though £400 more was due. 1 Kemp V. Westbrook, 1 Ves. 278, 27'J. 566 THE LAW OF MORTGAGES. [CH. L. The testator overdrew his account after the execution thereof, and at his death owed X541 over the XIOOO. The bill alleged, that the jjroperty of the testator was not more, or little more than sufficient to pay his specialty debts ; and that a l)ill had been filed by creditors against the plaintiff and the heir, in ■which suit there had been a decree for the creditors to come in. Tlie answer stated, that the practice of the defendants was, never to suffer a customer to overdraw more than <£100 without security ; that the defendants intended that the assign- ment should cover the balance due and to become due on the cash account, as well as the XIOOO and interest ; and that they always considered they had a lien for the whole debt. Lord Chancellor : " All the cases agree, that if the executor assigned the equity of redemption, it would put an end to the tacking ; so it would, if the specialty creditor brought the bill. I am afraid the rule has been laid down too broad, and that, there being a decree for creditors to come in, they must redeem on payment of the £1000 with interest." ^ § 12. In New York, a mortgage being made to secure a surety for rent of a lessee, which the mortgagee was obliged to pay ; held, such payment divested the mortgagor of all legal title, and gave a right of action to the mortgagee or his assignee for the property .2 § 13. In Alabama, on a bill to redeem a slave, conveyed by a bill of sale absolute on its face, on the ground that there was a parol agreement to redeem, or for a repurchase, the subscrib- ing witness was not produced, nor his absence accounted for, and there was no positive testimony rebutting the denial of the parol agreement by the answer. Tlie Court refused to disturb the sale, after a lapse of twenty years, and no excuse shown for the delay .^ And, in another case, the Court in Alabama thus lay down the rules of equity upon this subject : " We think it may be inferred from the evidence, that the mortgagee ■was placed in possession of the slave when the mortgage was executed, but we cannot infer what time the precise terms of the contract, in relation to the nature of the services, if any, 1 Vanderzee v. Willis, 3 Bro. 20, 21. ^ Swift v. Hart, 12 Barb. 530. See Marcon v. Bloxam, 34 Eng. Law'& ^ Hatfield v. Montgomery, 2 Porter, Eq. 475. 58. CH. L.] FORECLOSURE AND REDEMPTION. 567 was made, in point of fact. If there was no stipulation, the law would annex the condition to the mortgage, that the mortgagee should render a due account of all the income, profits, and ad- vantages. If it was stipulated that the services should be set against the interest, it would be a circumstance from which an usurious intent might be inferred, if the then value was greatly more than the accruing interest, and it is very questionable whether equity would not interfere, to relieve against such a contract (although not usurious in fact), so as to compel a just account of the profits. By the contract of mortgage, the title was vested in the mortgagee, subject to be divested by the payment of the money, on or before the day sti[)ulated. On the failure to pay, the title became absolute, and the mort>- gagor had nothing but an equity of redemption, the j^ussession having accompanied the mortgai/e. At the period fixed for the payment, the value of the services did not amount to the sum due, even if a court of law was competent to ascertain and settle the account between the parties, and no subsequent pay- ment could, in law, have the effect to divest the title of the mortgagee, become absolute by the forfeiture of the condition, or revest it, in the mortgagor." ^ (a) ^ Per GoUltliwait, J., Brown v. Lipscomb, 9 Porter, 474, 475. («) In Soutli Carolina, by statute, and another debt not secured by llie a mortgjagor of chattels may redeem mortgage. Craik v. Clark, 2 Hay. 22. them within two years after they have In Kentucky, a mortgagor of a slave been delivered to the mortgagee. And might redeem after the lapse of five where on such mortgage was indorsed years, provided there had been no ad- an agreement of the parties, by wliich verse holding of five years' duration, the mortgagee acknowledged the re- at any time witliin twenty' years after ceipt of tlie property, consisting of the right accrued ; and payment of the slaves, to lie held by him, in lieu of mortgage might be enforced at any time interest, until the mortgage debt should within the twenty years ; but the niort- be pai Henry v. Clark, 7 John. Ch. 40. against the mortgagor at the same time. (a) In the United States Court, the Ibid. transfer of a negotiable note and mort- So, though he had submitted a suit gage, for indemnity, the assignee agree- against him by the mortgagee for the ing to retransfer them if indemnified, Blave to arbitrators, in respect to his is a conveyance in trust, not a niort- right to redeem, and such relief, gage. Warren v. Emerson, 1 Curtis, Ibid. 239. CH. L.] FORECLOSURE AND REDEMPTION. 569 § 16. In Massachusetts, a mortgagee of real estate trans- ferred the mortgage to a party under whom the defendants claim, on condition to he void, if the assignor should pay the same sum whicli the mortgage was made to secure to him. The plaintiff, having acquired the interests of hoth mortgagor and mortgagee, hrings a hill in equity to redeem tlie original mortgage. Held, he might redeem, on payment of the amount due the defendants from the mortgagee. Metcalf, J., says (in suhstancc) : " The plaintiff has acquired all the right of the original mortgagor to redeem. Tliis hcing a legal, and not a merely equitable right, the Court has jurisdiction of tlie cause. The plaintiff has also acquired the title of the original mort- gagee. Whether this right of the plaintiff would alone liavc given the Court jurisdiction, we need not inquire. Having jurisdiction, the Court will examine the whole case, and ascer- tain what is equitably due to the defendants. Tiiey can claim only the debt due (the assignee) with interest. They are not liable to (the mortgagee) for any sum. The plaintiff has acquired all the equitable right that (the mortgagee) had to any sur{)lus which (the assignee) might have received ; and tlierefore if the defendants could claim and receive more than the amount due to (the assignee,) they would be bound in equity to hold the surjjlus for the plaintiff, and he might re- cover it back. Circuity of action is to be avoided by a decree that the plaintiff may redeem, on paying to the defendants the amount above stated." ^ § 17. It is held in Maine, that, where land is mortgaged to secure a bond, and the mortgagee assigns the bond and mort- gage as security for a debt, perhaps the mortgage may be con- sidered as real estate, so as to allow the assignor a right of redemption for tbree years after condition broken. But even if the assignment is a mortgage of personal property, the mortgagor has still an equity of redemption, by bringing his bill ta redeem within reasonable time.^ Weston, C. J., says : ^ " Many of the authorities treat a mortgage as a mere inci- dent to the debt it is intended to secure, and as standing in 1 Farnuru v. Metcalf, 8 Cush. 46-48. 2 Ciitts V. York, &c., 6 Slicpl. 190. 3 Ibid. 201. 570 THE LAW OF MORTGAGES. [CH. L. the relation of an accessory to its principal. We are not how- ever prepared to say, that he who mortgages an interest in real estate, which he holds himself in mortgage, is not entitled to the statnte period of three years, after breach of condition, before liis interest can be foreclosed. Stat. 1821, ch. 39. The statute is broad enough in its terms to embrace such a case, and an equity of redemption is a favored claim. But from the view we have taken of the case, we do not deem it necessary to decide this point. Tiie doctrine in relation to a mortgage of personal property, is very clearly laid down by Mr. Justice Story in his Commentaries, to which we refer, without advert- ing to the autliorities by which he is sustained. He says, a mortgage of personal property differs from a pledge. The former is a conditional transfer or conveyance of the property itself ; and if the condition is not duly performed, the whole title vests absolutely in the mortgagee, exactly as it does in the case of a mortgage of lands. 2 Story on Eq. 296, § 1030. He adds, that in mortgages of personal property, although the prescribed condition has not been fulfilled, there exists, as in mortgages of land, an equity of redemption, which may be asserted by the mortgagor, if he brings his bill to redeem within a reasonable time. Ibid. 297, § 1031." § 18. To rebut the statutory presumption, of an abandon- ment of the right to redeem personal property, on the ground of great mental distress and decay of memory ; these facts must be established beyond all doubt, the statute being one of repose} § 19. It has been held, that payment of the debt after breach of condition does not revest the mortgagor's title at law.^ But another case decides, that if a mortgagee, after breach ©f con- dition, receive the whole debt from the mortgagor ; this is a waiver of the forfeiture, and revests the title in him, without any formal delivery, and he may maintain trover against the mortgagee for a subsequent detention of the property.^ , § 20. If, after a mortgage debt is due, the mortgagee takes the property, with the full, mutual understanding, that it is 1 Ingram v. Smith, 6 Ired. Eq. 97. 3 Leighton v. Shapley, 8 N. H. 359. 2 Brown v. Lipscomb, 9 Port. 472. Ace. Patchin v. Pierce, 12 WeuU. 61. CH. L.] FORECLOSURE AND REDEMPTION. 571 done in discharge of the note ; the mortgagee becomes abso- lute owner. The intention of the parties is a question for the jury.i Thus the defendant sold certain steers to the plaintiffs, taking for the purchase-money a note, secured by a mortgage of the steers ; with au agreement that the plaintifTs should have possession till maturity of the note. Some time after the note became due, most of the amount was received by the defendant ; the balance remained unpaid for about two years, when the defendant made a demand, and, on the rejjly of one of the plaintilTs, that he could not pay it, the defendant de- manded the steers, and passed the bill of sale and note, being upon the same paper, to one of the plaintiffs, who examined them, and in presence of the other plaintiff pointed to the steers, saying, " Tliere are yoair steers : taice them ; " and on inquiry by the defendant told him he turned them out as his, the defendant's, property, and the steers were driven away by the defendant. "Within ten days afterwards, the defendant said to a third person, without the knowledge of the plaintiffs or any design that it sliould be communicated to them, that he did not wish to take any advantage of them, that all he wanted was his right, which was the balance due upon the note. The plaintiffs were informed of this conversation, and, in ten days after the defendant took away the steers, made a tender of that balance and demanded the steers. The defendant refused to deliver them, saying the note was paid by them. The plain- tiffs bring replevin for the steers. Held, the demand of the balance of the note, when the steers were taken, was a waiver of the forfeiture.^ Witli regard to the effect of the other pro- ceedings, Tenncy, J., says : ^ "It was the right of the defend- ant, art any time after the note became payal)le, to take the property into his own possession, he not having relinquished the power to do so, longer than the maturity of the note. It does not appear, that the note and mortgage were given up to the plaintiffs, when the steers were taken away by the defend- ant, though they were passed into the hands of one of the plaintiffs, before they turned out the steers. If there was a 1 Greene v. Dingley. 11 Shepl. 131. 2 Ibid. 3 Ibid. 137, 138. 672 THE LAW OF MORTGAGES. [CH. L. full understanding of the parties, that the steers were taken in discharge of the note, and that no riglit of redemption re- mained in the plaintiffs, the property vested absolutely in the defendant, and his title was no less perfect, than it was before he first parted with it, and nothing short of a repurchase would restore to the plaintiffs their former rights. But if the property was demanded by the defendant, and delivered by the plaintiffs, that it might be holden only as security and to hasten or enforce the payment, and the note was understood by the parties to be outstanding and unpaid, of which facts the con- versation with third persons may be regarded as evidence, a payment or tender, and a demand of the property within a reasonable time by the plaintiffs, would entitle them to a res- toration." So in case of a mortgage, under seal, conditioned to be void on payment of one note in sixty days, and another in ninety days : held, upon non-payment of the notes when due, the mortgagee's title became absolute at law ; but the time of payment might be enlarged by parol, and the condi- tion saved till the expiration of the extended time ; that an agreement, " to extend the mortgage fifteen or twenty days," extended the payment of each note for the period of twenty days beyond the time when they were respectively payable, but no further; and, the mortgagee having sold the property after more than twenty days from the time when one note be- came payable, for a sum exceeding both notes, that he was not liable to an action of money had and received for the balance.^ § 21. In case of assignment of a mortgage as security for a debt ; if the assignee commence and prosecute a suit for the debt, this is evidence of a continuing right to redeem, in the assignor, after breach of condition.^ Weston, C. J., says: ^ " If they had a right to hold, and did hold, the collateral security as absolutely their own, it being of sufficient value, their debt was paid. Their suit for the debt is, by fair im- plication, an admission that the equity of the demandant was still open, and his right to redeem not foreclosed." § 22. The disclosure of trustees showed a mortgage of goods 1 Flanders v. Barstow, 6 Shepl. 357. 2 Cutts V. York, &c., 6 Shepl. 191. 3 Ibid. 202. CH. L.] FORECLOSURE AND REDEMPTION. 573 made to tlic trustees by the defendant in September, 1848. The trustee writ was served on thcni in November, 1848, more than si.xty days after the mortgage was given. On an exam- ination made after November, 1848, there was in the trustees' hands a balance of forty or fifty dollars, the avails of the mortgaged property, over the amount for which the mortgage was collateral. It was contended tliat the mortgage liad been foreclosed before service of the writ ; but the disclosure did not show what were the conditions of the mortgage, nor state that a foreclosure had been had, or any measures taken to effect one. Held, the trustees had not discliarged themselves. ^ § 23. Where personal property is mortgaged to several per- sons, to secure debts owing to them separately, and, by the terms of the mortgage, the whole property is forfeited by a single default ; upon such default, it is forfeited to the mort- gagees jointly, and they become tenants in common of the whole property, and neither of them, on his debt becoming due, can dispose of the property, and appropriate the proceeds to his own use.^ 1 Dexter v. Field, 32 Maine, 174. 2 Xyler i'. Taylor, 8 Barb. 585. 574 THE LAW OF MORTGAGES. [CH. LI. CHAPTER LI. FORECLOSURE AND REDEMPTION. REMEDIES OF MORTGAGEE AND MORTGAGOR IN RELATION TO THE DEBT OP THE SECURITY. 1. General rule as to remedies. 2. Foreclosure Iw sale, &c. 10. Remedy of the mortgagee at law; suit for the property; concurrent remedies. 12. "Whether the mortgagor can main- tain a suit for the property. 15, Whether a mortgage creates a per- sonal liability. 16. Whether it prevents a personal lia- bility. 18. Lapse of time; effect upon the title. 19. Parties to a suit in equity. 29. Liability of mortgagee or mort- gagor to account. 3G. Jieceivers. 40. Foreclosure sale. § 1. The remedies of the respective parties to a mortgage of personal property, as in case of real estate, may consist either of acts in pais, without legal process, or of suits in law or equity, (a) § 2. It is said, that after notice the mortgagee may sell the property, whether it be goods, stock, or personal annuities.^ (6) 1 2 Story's Eq. 1031. (n) It will be seen by reference to the Appendix, that in some of the States the subject is now regulated by statute. No allusion is made in this chapter to statutory provisions. As to relief in equity, see Long Dock Co. V. Mallery, 1 Beasl. 94. See also Freeman v. Freeman, 2 Green (N. J.), 44 ; Hall v. The Sullivan, &c.. Law Rep., July, 1858, p. 144; Merrill v. Dawson, 1 Hemp. 563 ; Daniels v. Henderson, 5 Flor. 452. The mort- gagee has an implied irrevocable li- cense, after foreclosure, to enter in a peaceable and reasonable manner upon the premises of the mortgagor to take away the goods, even if the mort- gagor was but a tenant in common of the premises ; at least, if the co-tenant has purchased, with notice of the mort- gage, the mortgagor's interest in the mortgaged property. And if the prem- ises are a dwelling-house, the door being open and no objection being made, the mortgagee has a right to enter and take the property without previous notice. McNeal v. Emerson, 15 Gray, 384. (/)) "When a mortgagee is in posses- sion, deriving an income from the prop- erty, and subsequently forecloses by sale, the mortgagor cannot recover for the use in assumpsit. But if, after ap- plication of a reasonable allowance for such use has been made, the pi'oceeds of the sale exceed the balance due, he is entitled to such excess. Osgood v. Pollard, 17 N. H. 27 L CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 575 So, that he may cither foreclose or have a decree for sale, though the mortgage include real estate.^ Tiie lollowing cases illustrate the general rights and powers of a mortgagee as to foreclosure. § 3. In England, in the case of Slado v. Rlgg,^ a mortgagee of a reversionary interest in stock was held entitled- to the common decree for foreclosure in default of payment. In Wayne v. Hanham,^ the plaintiff, the first mortgagee, with a power of sale, claimed a decree of foreclosure, hut the de- fendants, the mortgagor and second mortgagee, insisted upon a decree for sale. Held, the former was the proper form of decree. Sir George Turner, V. C, says : •* " In such a mort- gage, as well as in every other, the mortgagor has a right to redeem. The purpose of a decree of foreclosure is to exclude that right, and unless by the established rule of practice of the court, the proper mode of excluding that right is by directing a sale, I think it must be excluded, according to the ordinary method of the court, by foreclosure. The mortgagee may, in such cases, and in some others, be entitled to a sale ; l)ut I do not find any rule or practice of the court which compels him to submit to it. On the contrary, in those cases, in wliich a decree for sale is made at the instance of the mortgagee, the sale seems to dei)end more on the will of the mortgagee than on the right of the mortgagor." § 4. In New York, in the case of Small v. The Herkimer, &c,^ a distinction was taken between the right of a corporation to forfeit shares, for non-payment of the calls made upon a subscriber, and a pledge or mortgage. Iloyt, J., says : ^ " Upon a foreclosure and sale of property mortgaged, if it bring more than the debt, the mortgagor is entilUnl to the surplus. But no provision is made for the company's refund- ing the surplus in this case. And if the com])any after for- feiture should sell the stock for a sum beyond the amount unpaid thereon at the time of forfeiture, the defendant could not recover such surplus. Again, in all cases of a mortgage, 1 Coote, 285. 6 2 Comst. 330. 2 3 Hare, 35. « Ibid. 340. See 2 Story's Eq. § 1325; 3 4 Eng. Kep.- 147. Sparks v. Liverpool, &c., 13 Ves. 42«. < 4 Eng. Rep. 148. 676 THE LAW OF MORTGAGES. [CH. LI. the mortgagor has in equity a riglit of redemption until a strict foreclosure, or a foreclosure and sale. But no such remedy exists for the redemption of stock forfeited under the provi- sions of a statute like the one in question. It has more of the properties of a conditional sale, when the absolute title does not pass until payment in full." § 5. In Georgia, a process to foreclose may be brought.^ So, in South Carolina, a bill in equity lies to foreclose a mort- gage ; and the property may be sold for the purpose of settling the rights of all parties.^ § 6. In the same State, a court of equity will make an equi- table application of the money arising from a sale of mortgaged property, which is subject to other liens. Tiius, several judg- ments were recovered in South Carolina, and the judgment debtor removed to Alabama, where he mortgaged three slaves. He then returned to South Carolina, and confessed two other judgments, under which the slaves were sold on execution, and the proceeds applied first to the older executions, and the bal- ance to the confessed judgments. Held, the mortgagee was entitled to such balance, and the creditors who received it were ordered, on a bill in equity, to account to him therefor.^ (a) § 7. In Mississippi, A. obtained a decree against B. for the foreclosure of a mortgage upon slaves, and assigned it to C. and others, who agreed with D. to purchase certain of the slaves at the commissioner's sale for -$3000, whether the slaves should cost more or less at the sale, and pay for them in three equal annual instalments. D. purchased the slaves, and gave bond for the price. The bond having been forfeited, an execu- 1 Brown v. Greer, 13 Geo. 285. See O'Fallon r. ElUott, 1 Mis. 364. 2 Bryan v. Robert, 1 Strobh. Eq. 334. 3 McKeithen v. Butler, 2 Rich. Eq. 37. » (a) In Louisiana, a sequestration of v. Richardson, 1 La. An. 12; Bres v. mortgaged i)ersonal property is allowed. Booth, ib. 307. In order to obtain such sequestration, Li Massachusetts, a mortgagee can- upon the ground that it is about to be not give notice and foreclose, after the removed from the State, the plaintiff property has been attached, and he has must make oath not merely to his ap- been summoned as trustee. Hobart v. prehension of such removal, but the Jouvett, Mass. S. J. C-., Oct. 1850, Law facts upon which it rests. McFarlane Rep. July, 1852, p. 169. CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 577 tioii issued thereon, and D. enjoined it. Held, that the injunc- tion could not be retained. ^ § 7 a. In Kentucky, the mortgagee of a slave in possession received the hire for more than a year after the balance due him had been ascertained and reported to the Court. Held, a decree for a sale to pay such balance, not ascertaining and de- ducting such hire, was erroneous.^ So, on a bill to foreclose a mortgage of a slave, a peremptory decree for payment of the sum supposed to be due, and that execution issue therefor, was held erroneous.^ § 8. In the following case, a mortgagee was held entitled to relief in a court of equity, on account of liabilities incurred by him by reason of the mortgage. § 9. In July, 1841, the plaintiff lent to the defendant X880, taking his note, and a mortgage of 100 shares in a banking company. In March, 1842, the defendant transferred the shares to the plaintiff in the form required by the company regulations, and the transfer was duly recorded. July 15, 1842, the loan was increased to XIOOO, and the transaction confirmed and brought down to that date, the charge being in- creased to £1000. August 4, 1843, the defendant paid the debt. August 25, the plaintiff applied to tiie directors (who, under the deed of settlement of the bank, liad power under certain terms to refuse a transfer) to transfer the shares to the defendant. The defendant concurred in the application, and signed and sent to the oflice a requisition to transfer. Septem- ber, 1843, pending the question of transfer, an alleged creditor of the company recovered judgments against the public officer of the company, and soon afterwards, the bank being insolvent, proceeded to enforce the judgment against the plaintiff. The plaintiff files a bill against the defendant for indemnity. Held, he was entitled to such indemnity against all liabilities prop- erly incurred by him as holder of the shares, from the time of transfer to him.* § 10. A mortgagee, acquiring the title to the mortgaged prop- 1 Shotwell V. Webb, 23 Miss. 375. » Madison v. Grant, 6 J. J. Marsh. 2 Clark V. Bobbin, 6 Dana, 349. 641. Ace. Pennington v. Pyle, 3 Dana, 529; * Pheue v. Gillon, 9 Jur. 1086. Woodard v. Fitzpatrick, 2 B. Mon. Gl. VOL. II. 37 578 THE LAW OF MORTGAGES. [CH. LI. erty by his mortgage, (a) the whole interest of the mortgagor, except his equity of redemption ,i may enforce the right of pos- session as well in law as in equity. Thus he may maintain an action of detinue.''^ So, where the debt is payable on demand, the mortgagee may sue for a taking of the property, though there has been no demand.^ And where the property has been wrongfully converted, an action to recover its value may be maintained by the mortgagee prior to the time the mortgage becomes due, if there is a clause which authorizes him to take possession and sell it, to satisfy the debt, at any time he shall deem himself insecure.^ So in case of a mortgage in the usual form; but further providing, that, upon default, or if the mort- gagee shall at any time deem himself in danger of losing his debt by delaying the collection thereof until it becomes paya- ble, he may take possession at any time before or after the time limited for such payment, and sell the property, &c. : held, the mortgagee might foreclose before default ; and that an assignee of the mortgagee had a right to take possession, and retain it, as against the mortgagor, and all persons claim- ing under him, before the debt became payable.^ So, although a mortgagor, left in possession of the property, may undoubt- edly transfer it to a third person, subject to the lien of the mortgagee ; yet where the sale is such, as to indicate that this lien is not recognized by the parties, the mortgagee may main- tain trover for a conversion. Thus, in trover for a horse, the plaintiff claimed under a mortgage duly recorded. It appeared that the mortgagor, being left in possession, sold the horse, which subsequently passed into the hands of the defendant, but on what terms did not distinctly appear. The defendant held and used the horse as owner, and then sold him and parted with the possession, being informed of the mortgage. 1 29 Barb. 518. * Chadwick v. Lamb, 29 Barb. 518. 2 Hopkins v. Thompson, 2 Port. 435. 5 Rich v. Milk, 20 Barb. GIG. 3 Brown i-. Cook, 3 E. D. Smith, 123. (a) It has been lield, that, if a mort- In South Carolina, a mortgagee of gagor in possession of the property puts slaves had in equity no legal title, but it on board a belligerent ship, and it is held them merely as collateral secu- captured, the mortgagee lias no remedy rity. Bryan v. Robert, 1 Strobh. Eq. to reclaim it. Bolchos v. Three Negro, 334. &c., Bee, 74, CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 579 The plaiiitifT demanded the horse from the defendant, after he had parted with him. Held, the action should be maintained.^ Parker, C. J., says : '^ " Tlie defendant might purchase the horse, sulyect to the mortgau'e ; and there seems to be no ob- jection, in such case, to a delivery of the animal to the vendee, if the riglits of the mortgagee arc not thereby prejudiced. A removal of the horse, under such a sale and delivery, to a dis- tance, so that the mortgagee could not gain possession of him without great inconvenience, might be evidence of a conver- sion. There seems to be no reason to doubt that a purchaser of the property, subject to the mortgage, who had lawfully taken the possession, might hold that possession until a de- mand was made ; and if before a demand the horse had died, or if, for any other sufficient reason, he could not comply with tiie demand, his refusal would not constitute a conversion. But in this case, the purchase of the entire property, "and an assertion of a right to a sole ownership under it, might be held to be a conversion, being inconsistent with the rights of the mortgagee. And it seems clear that the subsequent sale was of'itself a conversion. The general princij>le is, that assuming to one's self the property and right of disposing of another man's goods, is a conversion. It is so in the case of a sale of the entire property by a tenant in common. And the principle seems to be equally applicable in the case of a sale by a mort- gagor, or any one claiming under him, in exclusion of the rights of the mortgagee." So a mortgagee, having the imme- diate right of possession, unless there is an express stipulation to the contrary, may maintain an action of trespass against one who wrongfully takes the goods away, although he has not given notice to the mortgagor or person in possession, pursu- ant to (Mass.) Stat. 1848, ch. 72, § 1, of his intention to fore- close.^ § 11. It has been held, upon the general principle of concur- rent remedies^ heretofore explained (ch. 29), that the mort- gagee may proceed at the same time to enforce his rights in a court of law and a court of equity. Thus, in an action of det- 1 White V. Phelps, 12 N. H. 382. 2 Ibid. 385, 38G. 3 Brackett v. BuUard, 12 Met. 308. 580 THE LAW OF MORTGAGES. [CH. LI. inue for slaves, the defendant relied upon the record of a chancery suit, brought for the purpose of foreclosing- the mort- gage upon which the plaintiff rested his title. From the tran- script it appeared, that the Court pronounced an interlocutory decree of foreclosure, and ordered a sale of the property by commissioners, who were to make a report as the foundation of a final decree. They reported a sale of the land included in the mortgage, but not of the slaves, as to which nothing further had been done. The Court say : ^ " The right transferred to the plaintiffs by the mortgage was, no doubt, a legal one, and might unquestionably be asserted by them in a court of law. It was competent, no doubt, for the plaintiffs to apply to a court of equity, for the purpose of foreclosing the equity of re- demption ; but their having done so does not, per se, form a bar to their legal right in an action at law. Where a mort- gagee proceeds both at law and in equity, for the purpose of obtaining satisfaction for his demand, the court of equity has not unusually put the plaintiff to his election, either to proceed with the action at law or the suit in equity; but it does so, not because the pendency of the one suit is in itself a bar to the other, but, in the exercise of its discretionary power over its suitors, to prevent multiplicity of suits, and to save expense to the litigants." So where the grantor in a deed of trust, conveying personal property as security, sold to different per- sons, the creditor secured might maintain a bill for foreclosure, and for recovery of the slaves sold from the purchasers, al- though actions at law might have been brought, in the name of the trustee, against the several purchasers, to recover the property .2 And, on the other hand, a mortgagor of slaves might maintain a bill to redeem, for an account of hire, &c., notwith- standing he might have maintained an action at law, after tender of the debt.^ § 12. In an action against the mortgagor, or one claiming under him, for the property, it is held that the defendant may set up his right of redemption, if not foreclosed, as a defence, and reduce the damage to the amount due on the mortgage,^ 1 Jones V. Henry, 3 Litt. 5L ^ Wilkins v. Sears, 4 Monr. 343. 2 Ambler v. Warwick, 1 Leigh, 195. * Hinman v. Judson, 13 Barb. 629. CH. LI.] FORECLOSURE, ETC.; REMEDIES. 581 But, upon the ground tliat the mortgagee is the legal owner, and the mortgagor retains a mere right of redemption, the lat- ter cannot maintain trover for the property against the former, even where there has been no iH'cacli of condition. Tims prop- erty mortgaged to secure a note, payable in six months, was immediately delivered to tlie mortgagee, and by him sold for cash, at the end of sixty days after the note became due. In an action of trover, brought by tlie mortgagor against the mortgagee for tlie property, it was proved, that the note was made to indemnify tlic latter against a liability for the former, that such liability had ceased without any loss or damage to the mortgagee, and that the property had been demanded be- fore suit. Held, the action could not be maintained. Wilde, J., says: "To maintain trover, the jdaintiff must have a legal title to the property. It is not sufficient to show an equitable title, or that the defendant had converted the property which he was bouijd to convey to the plaintilf. In the present case, the carriages and harnesses sued for were the property of the defendants, having been conveyed to them by the plaintiff, to secure the payment of a note of hand from him to them. Now, admitting that the defendants have never been damnified, and that the mortgage has never been foreclosed, as alleged by the defendants, still they had the legal title to the property. If those carriages and harnesses had been pledged, the action might have been maintained, if the defendants had never been damnified ; for in that case they would have no right to sell the property, and such sale would have been wrongful, and would have been a conversion, for which trover would lie, the pledgee's special property having been terminated by their wrongful act, and the general property always having re- mained in the plaintiff. But the law is otherwise in the case of a mortgage. The whole legal title passes to the mortgagee conditionally ; and in the present case the condition had not been performed at the time of the sale ; and at that time the legal title to the property was in the defendants, and the plain- tiff had no right to the possession. By the sale, tlie legal title was vested in the purchaser, and the suusequent demand on the defendants is of no avail." ^ I Holmes v. Bell, 3 Cush. 322, 323. 582 THE LAW OF MORTGAGES. [CH. LI. § 13, On the other hand, as, until breach of condition, the mortgagee has a mere lien ; he is liable to an action for dam- ages if he sell the property or convert it to his own iise.^ So, where the mortgagee claims to be absolute owner, the mort- gagor need not tender the debt before bringing a suit.'^ And to a suit for foreclosure, a plea, that the plaintiff has appropri- ated the property to his own use, will entitle the defendant to a judgment for whatever is due him.^ But if a mortgagee takes possession of the property and sells it, the mortgagor cannot maintain trespass as for a trespass ab initio. His rem- edy for the sale is an action on the case.^ § 14. If a portion of the property has been sold with the mortgagor's consent, and the proceeds applied towards the debt, he may file a bill to redeem the residue.^ § 15. The question has arisen, in regard to a mortgage of chattels, as of lands, how far the mortgage itself creates a per- sonal liability upon which a suit can be maintained. (See ch. 6.) Thus, in New York, there was an assignment of a lease, " upon this condition, if I shall pay to the said, &c., by the 1st, &c., the aforesaid sum, &c., then this assignment to be void ; otherwise he may sell it, and from the money retain the .£12, &c. ; paying the remainder to me or my heirs." Held, an action of covenant did not lie upon this instrument.'^ The Court say : '^ " The assignment contains no covenant for the payment of money. The assignment only contains a condition for the benefit of the assignor, that he might redeem the lease by such a day, on payment of the money, and if he elected not to do this, the assignee was to sell the lease and pay himself. This was the only remedy prescribed for the assignee." So it is held in New York, that an action of debt will not lie upon a chattel mortgage to recover the sum thereby secured, unless the mortgage contains an express agreement to pay it, or a distinct acknowledgment of an existing debt. To sustain such action, it is not sufficient that the instrument transfers the property " for the purpose of securing the payment of the sum 1 Rhines v. Phelps, 3 Gilm. 455 ; * Leach v. Kimball, 34 N. H. 568. Spaulding v. Barnes, 4 Gray, 330. ^ Locke v. Palmer, 26 Ala. 312. '^ Watts V. Johnson, 4 Tex. 311; " Salisbury v. Philips, 10 John. 57. 3 Ashworth v. Dark, 20 Tex. 825. "^ Ibid. 58. CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 583 of," &c., with a proviso to cease and be void on payment by a certain day ; and in case of default authorizes a sale and an application of tiic proceeds in payment, rendering the overplus to the mortgagor.^ But in tlic same State it is said : - " Where one person acknowledges, by deed or otherwise, a certain sum to be due to another, an action of debt or assumpsit, as the case may be, will lie to recover it. The language is equivalent to a formal covenant or promise, and the appropriate action would lie without the allegation of either ; they being implied. The acknowledgment of the indebtedness itself creates a legal liability sufficient to sustain the action, and the admission in this case is as broad as that contained in a single bond." And, in Kentucky, a writing in the following terms : " Bor- rowed from, etc., $275, for which I have placed in his hands as security, a negro girl ; should I not pay said sum of money (by a certain day) the said girl is to be the absolute property of, Ac, and 1 bind myself to give a bill of sale when demanded ; " was held sufficient to sustain an action of covenant for the debt.'^ Robertson, C. J., says : * "As the contract was not, ac- cording to its legal operation, a sale, a contract to refund the money must be presumed ; and such a contract is expressed by the writing itself, when properly construed. ' Borrowed ' im- ports necessarily an obligation to return the thing borrowed, if it be loaned for use, or to return its kind and value if it be loaned for consumption." § 16. In reference to the opposite question, how far the tak- ing of a mortgage interferes with a personal right of action to recover the mortgage debt ; it is held that a vendor of personal property may maintain an action for the price, though at the time of sale he received a mortgage back as security, contain- ing a power of sale on default of payment.'* Nelson, J., says -J " The purchase-money of the boat constituted a debt for the recovery of wiiich the vendor had his remedy by action, when it fell due. It was not necessary that a note or bond should have been given to preserve the debt ; it existed and continued 1 Culver V. Sisson, 3 Comst. 264. * Ibid. 824. 2 Per Nelson, J., Elder v. Rouse, 15 * Sterling v. Rogers, 25 Wend. G58. Wend. 220, 221. « Ibid. 659. 3 Hart V. Burton, 7 J. J. Marsh. 322. 584 THE LAW OP MORTGAGES. [CH. LI. in full force, without such personal security. The mortgage was given as collateral security, and did not merge the demand. The one is the principal, the other the incident, and the latter can never merge the former." And, more especially, where A. obtained a judgment on a note against B., who brought his bill for relief, alleging that he had mortgaged a slave to A., as security ; and the evidence, that the note was given for the sum advanced by A. when he received the slave, proved insufficient : the bill was dismissed. ^ § 17. The question also arises, whether the mortgagee's ac- countability for the property, in case of loss or depreciation, can be relied on as a defence to a suit upon the debt. § 17 a. The mortgagee of a slave, which died without his fault, might maintain an action for the mortgage debt.^ So, to secure the debt of the defendant, the owner of a store, stand- ing upon land of another, mortgaged it to the creditors, the plaintiffs. The debt was payable on demand, and in the mort- gage no time limited for payment. The present action, being assumpsit for the debt, was commenced December 5th, and the plaintiffs took possession, under the mortgage, December 19th. On the 21st, the store was burned without fault of the plain- tiffs or defendant. The defendant claims to have the value of the store deducted from the debt. Held, the claim could not be allowed, either as a payment or in set-off.^ Howard, J., says : * "By the Revised Statutes, ch. 125, § 30, the mortgagor of personal property has sixty days in which he can redeem the property, after condition broken. By the mortgage the plaintiffs acquired a conditional title only to the property ; and by taking possession, for condition broken, their title was not perfected ; for the debt remained due, and the mortgagor could redeem within tlie time prescribed by the statute.- So long as the riglit of redemption existed, the title to the property could not become absolute in the plaintiffs, nor could they appropri- ate it in payment of their debt ; and, until their title was per- fected, the law would not thus appropriate the property. The mortgagee of personal property, in possession after condition 1 Hall V. Forqueran, 2 Litt. 329. » Covell v. DoUoff, 31 Maine, 104. 2 Hart V. Burton, 7 J. J. Marsh. * Ibid. 106. 324. CH. LT.] FORECLOSURE, ETC. ; REMEDIES. 585 broken, and while the riglit of redemption exists, is responsible for ordinary diligence in the management and preservation of the property, and is liable for ordinary neglect. In this re- spect his duties and responsibilities arc similar to those of a pawnee. If the property be destroyed without fault on iiis part, he cannot, while thus holding it as security for his debt, be held to account for it. But for the net proceeds of the income or profits, accruing to him before the destruction, he would be accountable." § 18. The question, whether a mortgagee's title is barred by lapse of time (see ch. 25), has been raised in regard to mortgages of personal property. («) In an action of detinue by the mortgagee of slaves against the mortgagor, it was con- tended that twenty years' possession by the defendants was primd facie evidence of payment ; but the defence was not sustained. 1 Tlie Court say:^ "After the lapse of twenty years from the time money secured by mortgage should have been paid, we admit in general, payment will be presumed ; but the presumption is a presumption of fact, and may be repelled by extraneous evidence ; and in this case, the circum- stance of a suit in chancery having been brought before the lapse of twenty years, for the purpose of foreclosing the defend- ant's equity of redemption, together with the proceedings and pendency of that suit, arc abundantly sufficient to do away the presumption which might otherwise have attached against the plaintiff's demand. But continued possession of slaves for six years after the law-day by the mortgagee, after forfei- ture, without recognition in any way of the mortgagor's rights, 1 Jones V. Henry, 3 Litt. 51. See Waterman v. Brown, 31 Penn. 61. •^ Ibid. (a) A statute, providing that a suit erty remained in possession of tlie might be maintained on the note as mortgagor, who sold some of it for the long as it would lie upon the mortgage, satisfaction of other debts ; held, this was held to apply to personal property', amounted to a prcsumjition that the Denierritt v. Batchelder, 8 Fost. 533. right to foreclose had been abandoned, Wliere the payee of a sealed note took and the insolvency of the mortgagor a mortgage for security', which he per- was not evidence to rebut the pre- mitted to lie for at least sixteen years, sumption. Blake v. Lane, 5 Jones, Eq. without payment of any part, even in- 412. terest, and during that time the prop- 586 THE LAW OF MORTGAGES. [CH. LI. justified an application of the analogy of the Statute of Limita- tions, and barred the mortgagor's right to redeem, notwithstand- ing there might be a provision in the mortgage entitling the mortgagee to possession until the debt was paid." ^ (a) § 19. With regard to the proper parties to a suit for fore- closure of a mortgage of personal property ; the question arose in Alabama, whether a third person, in possession, and claim- ing a title to the property, must necessarily be joined in the bill. In reference to this point, and to the established rule of equity as to mortgages of real estate (see ch. 31), Collier, C. J., says: 2 "Where land is conveyed by way of mortgage, it has been supposed that it was allowable for the mortgagee to proceed against the mortgagor, so as to make his security avail- able, without making either a prior or subsequent incumbrancer a party ; that the rights of the former are paramount, and those of the latter will not be concluded, unless he is brought before the Court. And this although a sale may follow a de- cree of foreclosure. But in the case of personal estate, in order to consummate a sale, the possession would necessarily be changed, and this makes it necessary, where a third person is in possession, under a claim of right, that his title should be passed upon before the sale takes place. Where, however, the decree operates on land, upon the report of the sale having been made, tlie Court may make such order in respect to the possession as is proper, or may leave the purchaser to his action at law. The complainant's debt was admitted. Here, then, was a just ground of complaint as to Taylor, the mortgagor, and the question is, whether the legal title which McRae set up was subversive of tlie entire suit. The analogies furnished by the law, where real estate is the subject of litigation, would seem rather to indicate that an issue should be directed to try the validity of the independent title, or it may be that pro- 1 Byrd v. McDaniel, 33 Ala. 18. 270 ; Goodyear v. Brooks, 6 Rob. N. Y. 2 Branch, &c. v. Taylor, 10 Ala. 70, 682. 71. See Singleton v. Gayle, 8 Port. (a) In Arkansas, where a mortgagor der like circumstances, to commence of slaves remained in possession after an action at law for the possession of default of payment, the mortgagee had the slaves ; and the limitation to such the same time to bring a bill to fore- action was three years. Ewell v. Tid- clo6e and sell, that was allowed him, un- well, 20 Ark. 136. %\ CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 587 ceedings should be stayed until the complainant had shown its insufficiency to defeat the mortgage in an action brought to recover the possession of the slaves ; or, j)erliai)s, a decree of foreclosure might be rendered, and its execution by sale post- poned, until the complainant recovered the possession of McRae. Whether the title asserted l)y McRae should ))e met and adjudicated in the one form or the other, we are satisfied that the bill should not have been dismissed in toto. The mortgage would have estopped Taylor, had he attempted it, from asserting the invalidity of his title to the slaves. The answer of McRae, whatever be its effect in his favor, cannot prejudice the complainant's right to a decree against the mort- gagor." § 20. Where, on a bill to foreclose, a decree for sale has been entered, a person in possession, not made party, may be ruled into court, and, unless he shows a paramount title, will be ordered to deliver the property to the commissioner, for sale : and such order may, if necessary, be enforced by attach- ment.i § 21. The executors, and not the heirs, of a mortgagee of slaves, should have filed a bill to foreclose the mortgage ;^ and, if there were no executor or administrator, the fact should be sug- gested, and the children of the mortgagee made parties.^ So, where A. gave B. a mortgage, to indemnify him as his surety on a debt to C. ; on a bill quia timet by B. against A.'s representatives, for a decree that they pay tlic debt and indem- nify B. ; held, the bill would lie, but C.'s representatives must be made parties.* § 22. Where a mortgagee has lost his lien, under the Stat- ute of Alabama, of 1823, as to creditors of the mortgagor, this is no defence to a bill to foreclose the mortgage. Where a creditor wishes to avoid such mortgage, and has not obtained a specific lien by judgment, he should file his bill, making the personal representatives of the mortgagor and the mortgagee parties, and asserting his right to satisfaction out of the prop- erty.^ 1 Commonwealth v. Ragsdale, 2 " Ibid. Hen. & M. 8. * Call v. Scott, 4 Call, 402. 2 Harrison v. Harrison, 1 Call, 419. » Stewart i-. Fry, 3 Ala. 573. 688 THE LAW OF MORTGAGES. [CH. LI. § 23. Bill to redeem slaves, which had been in B.'s posses- sion some years, under a written transfer from A., which A. claimed to have been a mortgage. B. having, previously to the filing of this bill, mortgaged the slaves to the Bank of Kentucky, the bank, during the pendency of A.'s bill, filed their bill for foreclosure, and obtained a decree, A.'s bill hav- ing been dismissed. The slaves were sold under the decree, and purchased by C, a son of B., who had died. The decree dismissing the bill of A. was afterwards reversed, and the executors of B. were decreed to restore the slaves. The execu- tors, failing to comply, set forth the above facts, and C, in answer to a rule upon him, denied that the decree, as to the bank or himself, was conclusive, they not having been parties to the bill of A. Held, that C. had a right to litigate these facts before he should be required to surrender the slaves.^ § 24. A mortgage to a surety for indemnity will enure to the benefit of the creditor, who can maintain a bill for fore- closure.2 § 25. Where a suit is brought against husband and wife, there may be a foreclosure against both, but not a joint judg- ment on the note.^ § 26. The assignee of a mortgage is the proper person, and has full right, to institute a suit for foreclosure. It is not a good defence to such suit that the assignor was insolvent. Nor that the mortgagor had sold part of the property with consent of the mortgagee or his assignee ; without an alle- gation that the proceeds had been applied to the mortgage debt.'* § 27. By an assignment of the owner of mortgaged prop- erty, it was agreed that the assignee should sell it, and, after paying the incumbrances, and his own charges and advances, pay one-half the surplus and one-half the intermediate profits to the assignor ; and afterwards they further agreed upon a fixed sum to be paid the assignor in full for all his interest. The assignee then sold, subject to this agreement, and the buyer assumed the payment of the sum fixed. The buyer 1 Macey v. Fenwick, 9 Dana, 198. ^ Daniels v. Henderson, 5 Flor. 452. 2 Troy V. Smith, 33 Ala. 469. * Wynn v. Ely, 8 Flor. 232. CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 589 then sold to one who did not agree to pay the sum fixed, hut took subject to the claim, and he sold to one with notice of the claim, and who agreed to pay said sum. Held, that tlie first assignor may join all the assignees in a l)ill to com{)el a sale and a payment of the fixed sum from the proceeds, and, should the property prove deficient, to recover from tlie first and second assignees personally, in their order, the deficiency. But he cannot have such judgment against the third purchaser, who did not promise to pay, nor against the fourth, whose assignor was under no personal liability.^ § 28. A complaint, claiming upon such a state of facts to have said fixed sum declared a lien upon the property, is a single cause of action ; the several liabilities of the other pur- chasers are collateral matters, and may be enforced to make good any deficiency .^ § 29. Cases have often occurred, in reference to the liability of a mortgagee or mortgagor, to account for the value of the property, in case of redemption. § 30. Where it was stated in a bill for redemption of slaves, that they were " pledged or mortgaged ; " on a decree for re- demption, the holder must account for their hire, the words " pledged " and " mortgaged " being considered equivalent.^ § 31. Where the mortgagee of a slave refused to deliver him, upon tender of the debt, and the slave afterwards died, the mortgagee must bear the loss."^ But a mortgagee was not ifable for the value of a slave, who died after tender and re- fusal of the consideration, if the slave was laboring under the disease of which he died at the time of delivery to the mort- gagee and the tender." § 32. A mortgagee in possession will be allowed, in account, for all necessary repairs, management, and improvements.^ § 33. Where a mortgagee of a slave appeared to have acted in good faith in hiring out the slave, and to have rendered a true account of the hire ; held, though the slave might have ^ Ford V. David, 1 Bosw. 569. ^ Shannon v. Specrs, 2 A. K. Marsh. 2 Ibid. 311. 3 Wilkins v. Scars,4 Monr. 343. See s Lowndes v. Chisholm, 2 McC. Ch. Overton v. Bif^elow, 10 Ycrg. 48. 455. * Goodman v. Pledger, 14 Ala. 114. 590 THE LAW OF MORTGAGES. [CH. LI. been more advantageously hired out, the mortgagee should be charged only with the amount of hire, to be applied first to the interest, then the principal, at the several periods when the hire was payable, and this notwithstanding the insolvency of the parties hiring ; and that he could not charge for his trouble in managing the property.^ § 34. With regard to the liability of a mortgagor to account ; a mortgagee of slaves was not entitled to have tliem delivered to him specifically, nor to have an account for their hire.^ So, where the mortgagee of a chattel permits the mortgagor, who is the debtor, to receive the profits of the chattel, he cannot have an account against the personal representatives of the mortgagor, for moneys received by him in his lifetime from such profits ; ^ even though there was a special agreement to apply the profits to the debt.* But such contract is binding on the personal representative; and profits realized by him, and accruing after the death of the mortgagor, are to be ac- counted for to the mortgagee, and are not assets.^ § 35. Where the mortgagor, in a suit for a mortgaged slave against the mortgagee, claimed damages for detention, and was permitted, without objection, to prove the value of the use or hire ; the jury might apply it to the extinguishment of the debt.6 § 36. A receiver may be appointed, in case of danger to the property.'^ But a receiver will not be appointed over a mort- gagee in possession, nor an injunction issue against selling, where the mortgagor admits there is a balance still due, and that the pledge is not an inadequate security ; unless there is an allegation of danger to tlie property, or irresponsibility on the part of the mortgagee.^ § 37. A receiver, who, without the consent of the mortgagor, and notwithstanding an injunction obtained by the mortgagee, whose mortgage was duly recorded, sold the goods at auction, in parcels, to different people, and without any notice given or 1 Clark V. Robbins, 6 Dana, 349. North v. Drayton, 1 Harp. Ch. 34 ; 2 Whitmore v. Parks, 3 Humph. 95. Chambers v. Mauldin, 4 Ala. 477. 3 Stewart v. Fry, 3 Ala. 573. 6 Watts v. Johnson, 4 Tex. 311. * Ibid. 1 Rose v. Sevan, 10 Md. 466. 5 Stewart v. Fry, 3 Ala. 573. See 8 Bayaud v. Fellows, 28 Barb. 451. CH. LI.] FORECLOSURE, ETC. ; REMEDIES. 591 recognition of the rights of the mortgagee, in consequence of which the security was lost ; is liable to the mortgagee for the full face of the mortgage with interest, and interest on the aggregate amount from tiic time it became due. If justified in taking them at all, he was bound to keep them till the mortgage fell due ; or, if he sold them, to sell only the mort- gagee's right of temporary possession with the equity of re- demption.^ § 38. But a purchaser without notice, at such sale, is not liable in damages to the mortgagee, if the latter fails to refile a copy, etc., as prescribed by statute.^ § 39. A person made party defendant, to a bill to redeem a mortgage in trust, as having a claim for services included in it, which, by the terms of his contract, was to be paid to his son for the benefit of his wife, appeared and answered, and represented the claim before the Master. The Master re- ported the amount of the claim, and that it should be paid to the son, for the mother. Held, the Court would not over- rule the allowance, or delay the cause, at the instance of the plaintiffs, wlio claimed as creditors of the mortgagor under a general assignment executed by him subsequently to the mort- gage, because the son and wife were not parties to the bill.^ § 40. A collusive purchase at the foreclosure sale, for the benefit of the mortgagee, is void."* § 4l. If a sale is made without a compliance with statutory requirements, objection should be taken when the sale is re- ported.° § 42. In case of two mortgages made for indemnity on account of indorsements, a bill in equity being brought for in- structions to an assignee of the property, by whom it was sold for the benefit of all concerned ; a distribution of the proceeds was ordered to be made directly to the holders of the indorsed notes, and not to the mortgagees.*" § 43. The following case, already cited in another connec- tion, may here be referred to upon the question of costs. § 44. The owner of g\ of a ship transferred them by a bill » Manning v. Monaghan, 1 Bosw. * Pettibone v. Perkins, G Wis. GIG. 459. 2 Ibid. 5 Gayle v. Fattle, 14 Md. 69. 3 Spencer v. Pierce, 5 R. I. G3. •* Aldrich v. Martin, 4 R. I. 520. 592 THE LAW OP MORTGAGES. [CH. LI. of sale, on which was indorsed, that, if the vendor should pay the vendee XlOO and interest, the bill of sale should be void. Interest was subsequently paid. The bill of sale was regis- tered, but the registry did not notice the indorsement. The vendee having sold the property, the vendor brings a bill to redeem ; and a decree was rendered in his favor, with costs, so far as they arose from a denial or dispute of his right to redeem.^ (a) i Whitfield V. Parfitt, G Eng. R. 48. (a) In reference to the form of de- cree, &c. ; the mortgage, decree of fore- closure, and report of the commissioner appointed to sell under the decree, are to be taken together ; -and if the prop- erty is described in the mortgage, and the decree follows the mortgage, and the report certifies to the sale of the property described in the decree, the report sufficiently identifies the prop- erty. Conger v. Robinson, 4 S. & M. 210. An omission, in such report, to state the name of the purchaser and the amount of the sales, renders it defect- ive ; but does not justify a suspension of an execution of the sale-bond. Ibid. Where a bill alleges, that the mort- gagor of a slave is about to remove him, the Chancellor will anticipate the day of payment, so far as to secure the property ; but, in decreeing a sale, the 8urj)lus should be decreed to be paid to the mortgagor ; the Chancellor should decide on the sum due, give a day for payment, and decree a foreclosure and sale nisi, and afterwards decide whether the decree has been performed or not, and if not, make the decree absolute. It is erroneous to leave it to a commis- sioner to decide, whether the tender was or was not a good one, and whether payment was or was not made. Dow- ning V. Palmateer, 1 Monr. 64. CH. LII.] CONDITIONAL SALE. 593 CHAPTER LII. CONDITIONAL SALE OF PERSONAL PROPERTY. § 1. The distinction has been pointed out at length (ch. 5) between a mortgajie and a conditional sale of real estate. The same distinction has been applied in the case of personal property. It is said,^ " there is no difference in point of law, between a sale for a price paid, or to be paid, which is to become absolute on a particular event, and a purchase accom- panied by an agreement to resell upon certain agreed terms. In both cases, the sale is to be regarded as conditional, and if the condition which is to defeat it is promptly performed, in the one case the title will not vest in the vendee, and in the other it will be divested." § 2. It is held that conditional sales are not to be favored ; but, in all cases of doubt, the Court inclines in favor of mortgages : tliat the general tests, in doubtful cases, are the adequacy of the consideration, and the continuance or extin- guishment of the debt.2 So, upon the question, whether a conveyance of slaves was intended as a security or a con- ditional sale, the facts, that the grantor was illiterate, needy, and in the power of the grantee ; that the price was grossly inadequate, and was not paid, but only promised ; and tliat tlie instrument included a much larger interest than the gran- tor had, — arc very decisive evidences that a security was intended.^ § 3. In Eiland v. Radford,"* the intestate of the plaintiff made an absolute bill of sale of a slave to the defendant. Afterwards the latter executed a defeasance, by which he 1 Per Collier, C. J., Sewall v. Henry, - I'arisli v. Gates, 29 Ala. 254. 9 Ala. 34. See Marshall v. Lewis, 4 * Wilson j;. Weston, 4 Joues, Eq. Litt. 140 ; Edrlngton v. Harper, 3 J. J. 349. Marsh. 358 ; Bishop v. Rutledge, 7, ■• 7 Ala. 724. 217; Perkins v. Drye, 3 Dana, 170. VOL. II. 38 594 THE LAW OF MORTGAGES. [CH. LIT. stipulated to deliver the slave to tlie vendor, provided he repaid hira, on a certain day, a sum equal to that expressed in the bill of sale. Held, a conditional sale. The Court applied to the case the following tests of distinction between mortgages and conditional sales. Did the relation of debtor and creditor subsist before the alleged sale ? Did the transaction commence b}' a proposition to lend or borrow money ? Was there a great disparity between the value of the property and the price ? Did the vendor continue bound for the debt ? And the absence of any personal obligation is held a strong circumstance to prove a bill of sale, absolute on its face, to be a conditional sale, and not a mortgage.^ (a) § 4. Conveyance of a slave to secure a certain sum. The grantor afterwards agreed with a third person, that the latter should pay the debt, take the slave, and hold him for a certain 1 Scott V. Britton, 2 Yerg. 215 ; Locke v. Palmer, 26 Ala. 312. (a) So, in the absence of any prom- ise to pay, a subsequent agreement by A. to convey to B. property of B. which A. bought when about to be sold, is not a mortgage. Magee v. Catching, 33 Miss. 672. On a bill filed to have a deed abso- lute on its face declared a mortgage, a writing, executed by the grantee sev- eral months after the original deed, reciting that it was agreed between him and the grantor, at the time the deed was executed, that, if the latter repaid to him by a specified day the amount of the considei'ation-mone}'' ex- pressed in the deed, then he would re- convey to him, and binding himself to reconvey accordingly, is evidence of the highest character against the grantee ; and, although it may not be sufficient of itself to show that the parties in- tended a mortgage, yet if the other evidence in the case, taken in connec- tion with it, establishes that to have been the purpose of the parties, or even renders it doubtful whether a mortgage or a conditional sale was intended, it is enough to induce a court of equity to declare it a mortgage. Locke v. Pal- mer, 26 Ala. 312. A deed absolute on its face was de- clared a mortgage, on proof of these facts : That the transaction originated in a loan of money, and the relation of debtor and creditor existed between the parties ; that some of the articles were not enumerated in the deed; that the creditor gave up the debtor's notes, and retained no evidence of the debt ; that the creditor, about two months afterwards, acknowledged in writing that, at the time the deed was exe- cuted, it was agreed between them that, if the debtor repaid to him by a specified day the amount expressed as the consideration in the deed, then he would reconvey to him, and bound him- self to reconvey ; and that all the prop- erty, both real and personal, remained in the debtor's possession, without any agreement for rent or hire so far as the evidence disclosed. Ibid. No action to recover a debt will lie on a mortgage which contains no agreement to pay, nor an admission that any thing is due. Weed v. Covill, 14 Barb. 242. CH. LII.] CONDITIONAL SALE. 595 time, at the expiration of whicli he should receive the sum ad- vanced, or pay the grantor the balance of the vabic of tlie slave. Held, this agreement was a conditional sale, not a mortgage.^ Allen, J., says :- "The Court is of opinion, tliat the contract, as understood by both parties, and as appears from a true construction of the agreement between them, was a conditional sale of the slave at a price to l)e fixed by a fair valuation at a future day ; that the mode of ascertaining the price was for the benefit of the seller ; and in this asjicct the case is free from the objection sometimes preferred, that such contracts are a device resorted to for the purpose of obtaining property from a needy debtor at less than its fair value. In this case possession of the property was delivered to the pur- chaser, who was entitled to retain such possession until the time fixed for the payment of the money, without accounting for hires. That the seller reserved the right to abrogate the contract of sale, by returning the money advanced, without in- terest ; and if not so abrogated, the contract of sale became executed, and Strider became liable for the balance of the price of the boy." § 5. To an absolute bill of sale, signed by the vendor, was attached a condition, signed by the vendee, as follows: " The condition of the above obligation is such, that if, &c., pays, &c., the above sum, &c., by January 1, 1827," &c. Held, this was not a mortgage, but a sale with liberty to repurchase, and that the word jmi/ in the condition did not constitute a cove- nant by the vendee to pay. It was said, that, to constitute fi deed a mortgage upon its face, it must show the consideration to be either a debt due, or money lent at the time, or else must contain a covenant to pay ; that the intention of the parties at the time changes the deed into a mortgage ; and this may be shown by parol evidence.^ So an absolute bill of sale of slaves, with a bond back, conditioned that the vendee would cancel it upon the vendor's giving him satisfactory evidence of the payment of a debt for which the vendee was surety ; was held not a mortgage.* So A., being in want of money, de- 1 Stridor v. Eeid, 2 Gratt. 38. » Hickman v. Cantrell, 9 YerR. 172. 2 2 Gratt. 42, 48. * Forkucr v. Stuart, G Gratt. 197. 596 THE LAW OF MORTGAGES. [CH. LII. livcrcd to B. a female slave, and received of B. <£70, the full value of the slave, the use of which B, was to have for the interest of the money ^ and, in case of her death within a certain time, the loss was to be borne by A. ; if afterwards, by B. On a bill to redeem, twelve years afterwards, held, a con- ditional sale, and not a mortgage.^ So a writing was given as follows : " This is to certify, that if A., or his heirs, shall pay me the sum of $400 within twelve months from date, then I oblige myself, my heirs, &c., to deliver to said B., his heirs, &c., a negro bought of him for $400, if said slave should be alive." Held, a bill of sale, with the privilege of repurchasing for a limited period, and not a mortgage, as the consideration was adequate ; and that the general indisposition of A. to part with his slaves, or the fact that the purchaser was accustomed to take mortgages of slaves, would not warrant the Court in construing it as a mortgage.^ So A. applied to B. for a loan of money, which B. refused, but offered to advance the money if A. would sell him a certain slave at a fair price, which offer was acceded to, and $600 was agreed upon as a fair price ; and B. agreed to reconvey the slave on repayment of the sum ad- vanced, and interest, at a certain time. Thereupon A. exe- cuted a bill of sale of the slave, which recited the consideration of $394 as paid by B. therefor, with the conditions in the bill, that, if A. should pay to B. the sum of $394 on or before the 25th day of the following December, with lawful interest, then the conveyance should be void ; but if A. should fail to pay such sum and interest at that time, that he should deliver the slave to B. and make him a complete title, on his paying to A. $206. Held, that the transaction was not a mortgage, but a conditional sale, which B. could make absolute by the payment of $206, on A.'s failure to perform the condition imposed on . him by the contract.^ So trover was brought under the follow- ing facts and agreement: " Boston, March 15,1850. Albert Benson, of Plymouth, bought of J. B. Whittier four carriages, as follows : one carryall, $225, &c., and said Benson is not to hold the above carriages until he has paid for the same. 1 Critcher v. Walker, 1 Mur. 488. '^ Harrison v. Lee, 1 Litt. 191. 3 Moss V. Green, 10 Leigh, 251. CH. LII.] CONDITIONAL SALE. 597 Terms of payment as follows : -f 200 cash down, &c. ; each and all of them with interest ; which payments are to he indorsed on this instrnment as they are made to said Whittier. And provided said Benson does not meet the said payments as they become due, then the said Whittier can take the said carriages for such payments, each or any of them, and said Benson for- feits what he has previously paid, as witness my hand and date above mentioned. Albert Benson." Among several indorse- ments upon the instrument, the first was as follows : " Rec'd of the within agreement, -$200. Plymouth, March 15, 1850.". Held, this was not a mortgage, but a conditional sale, and that Wiiittier might maintain trover against a mortgagee of Benson.^ So A., by articles of agreement, " gives, grants, bargains, and sells " to B. certain slaves, for a stated consideration for each, it being understood that A. may redeem any and all of them within twelve months at the valuation affixed. Held, a condi- tional sale. The agreement being transferred to C, and D. claiming to have an interest in the slaves, it was agreed be- tween C. and D. that one of the slaves should remain in the possession of C, and another of D., until the agreed value of each was paid to C, and that then perfect titles should be made by C. to D. Held, this agreement was not a mortgage.^ So S., the owner of certain machines, agreed with A. and B. as follows: "A. and B. agree to pay S. for the above machines and belting, time, services, and expenses, the sum of $810.75, within five months, and S. agrees to take the above amount as above stated, but lends to said A. and B. the property above stated ; and if they fail to pay, he is at liberty to take tlie property away, to enable him to realize the amount and inter- est." Held, a conditional sale and not a mortgage, and that the property could not be taken on an execution against A. and B., though the agreement had not been filed, as a mort- gage.^ So a mortgagee applied to a third party for a loan on the security of the mortgage, which was refused, but an offer made to purchase the mortgage outright, for a sum less than the face of it. An agreement of sale was thereupon executed 1 Whittier v. Barnes, Mass. S. J. C, 2 Murphy v. Barcfiekl, 27 Ala. 634. Nov. 1852, Law Rep., Jan. 1853, p. 520. ^ Qrant v. Skinner, 21 Barb. 581. 598 THE LAW OF MORTGAGES. [CH. LII. by the mortgagee, who received from the purchaser a covenant of the same date, that he would sell it back within a period named, but not afterwards, for the price paid, with interest. Held, in the absence of evidence, that the consideration paid was inadequate, and of any personal liability on the part of the vendor, a conditional sale and not a mortgage.^ § 6. In case of sale with liberty to repurchase, the condition must be strictly performed ; if not, equity will not relieve. Otherwise, where there is the least fraud or oppression.^ And the tender must be made with all legal formalities.^ Thus, in case of a conveyance by absolute deed, with liberty by a condition under seal to repurchase the property, the seller ap- plied to a third person to take an assignment of the condition, pay the money, and take a conveyance of the property as se- curity ; which the party agreed to do. On the day appointed they went to the vendee, and the third person tendered the money and requested a conveyance to himself. The vendee refused to convey to him, but offered to receive the money and convey to the vendor, which the third person refused. Held, not to be a performance of the condition by the vendor, and that the vendee was bound to convey only to him.^ (a) 1 Quirk V. Rodman, 5 Duer, 285. 3 Ibid. 2 Hickman v. Cantrell, 9 Yerg. 172. < Ibid. (a) The subject of equitable mortgages to be secured by a mortgage, and a has been considered at length in former memorandum at the bottom of the con- chapters (22, 23). The following case, tract called the machinery collateral involving several miscellaneous points, security for the money -paid for it by turns in part upon the distinction be- B., and in the contract it was said to be twgen legal and equitable mortgages of security for the advance made, it may personal property. be deemed in equity a debt, though A. Where B. promises A. to buy ma- was said to be " at liberty " to pay the chinery of C. and let A. have it to use, money advanced. Almy v. Wilbur, 2 at an agreed price per yard for cloth W. & M. 371. made by it at A.'s factory, B. to furnish This contract may be considered a the raw cotton, and credit A., towards mortgage in equity, and A. could not payment for the machinery, with what afterwards legally sell the machinery the cloth sells for beyond that price and to D., till he had fully paid the debt to expenses; this is not at law a mortgage B. ; and D., having notice of the facts, of the machinery by A. to B., because or notice enough to put him on inquiry, the title did not come from B. to A., could not hold the machinery without and their agreement was not made at paying the balance due. Ibid, the time when B. got his title. But, if Such a contract, though a mortgage, an absolute debt from A. to B. existed, need not be recorded, to make it valid CII. LII.] CONDITIONAL SALE. 599 between the parties or those having no- tice of it. Possession of such property by A., who did not own it before the mortgage, is not within tlie pohcy of tiio hiw as evidence of fraud, whether it is a mortgage or not. Nor is the ma- ciiincrj' so in the control and disposi- tion of A., as to make it lial)le for liis ilebts, like property of third persons in the power and disposal of bankrupts under the provisions of bankrupt laws. Ibid. A bill in equity does not lie, merely to procure from D. an account of the machinery and its rents and profits ; but may be maintained for the discov- ery of material facts, and to require D. to redeem the property mortgaged, or restore it and its rent. Ibid. Held, the Statute of Limitations did not run, till the demand of U. upon D., and a refusal to return the machinery. Ibid. A. or D. has a remedy against B. to perform his contract, on tendering the balance due, and B. may have relief in chancery from his contract to convey, unless A. or 1). will, witliin reasonable time, pay the balance due him. Ibid. A. purchased a slave, the property of B., at an e.xecution sale, but allowed B. to retain possession, under a parol agreement, that, whenever B. should refund the purchase-money, either to A., or to the party who advanced it to A., on his note, the title shoukl be re- conveyed to B. B. died without mak- ing such payment, and subsequently A. died, having devised the slave to B.'s children. The lender then recov- ered the amount of the note against A.'s estate. Held, that A.'s represen- tatives had no claim against those of B. for the sura recovered, since, regarding the transaction as an equitable mort- gage, the devise by A. was a conver- sion. Upchurch v. Darnall, 3 Sneed, 443. APPENDIX. I. PAWN OR PLEDGE. HYPOTHECATION. 1. l^Iortf^age and pledge compared and 30. Parties; assignment, &c. distinguished. Definitions of a pledge y^c?' 34. Delivery. se, and as contrasted witli a mortgage. 35. Liability secured; future debts, in- The two forms of security considered in terest, &c. connection. 38. Remedies, foreclosure, sale, and re- 21. Terms of a pledge; power of sale. demption. 22. Property pledged. 55. Hypothecation. § 1. As a natural and useful sequel to the foregoing view of mort- gages of personal property, it seems proper to present a brief abstract of the law pertaining to pawns or pledges. These two forms of assign- ment resemble each other, in being alike conditional transfers for the purpose of security, and in many of the rights a«d duties which re- spectively grow out of them ; and therefore a treatise relating to the one would be practically imperfect, without some reference to the other. While, on the other hand, as will be seen, in a scientific and technical arrangement and division of subjects, the mortgage and the pledge cannot be treated in connection, because they constitute, in the eye of the law, totally distinct transactions. The following definitions and explanatory remarks of judges and elementary writers will show at once the analogies and the distinctions between a mortgage and a pledge of personal property ; as connected with the requisite formalities of tlie two modes of transfer, the immediate title of the respective parties, and the right on the one hand of regaining the property by satisfaction of the debt secured, or, on the other, of appropriating it in payment of that debt. § 2. A pledge is a bailment of goods by a debtor to his creditor, to be kept till the debt is discharged.^ Or, a delivery of goods or chat- 1 Jones on Bailm. 117 ; 1 Dane, eh. 17, art. 4; 2 Kent, 577. 602 APPENDIX. [no. I. tels, to be security for money borrowed.^ Or, a bailment of jDersonal property, as a security for some debt or engagement.^ § 3. "A ytledge is a deposit of goods to be redeemed on certain terms. Delivery always accompanies a pledge, and a mortgage of goods is often valid without delivery." * § 4. A pledge is a mere bailment ; but, in case of a mortgage, a breach of condition vests an absolute title in the mortgagee.* § 5. "A mortgage is a pledge and more ; for it is an absolute pledge to become an absolute intei'est, if not redeemed at a certain time : a pledge is a deposit of personal effects, not to be taken back, but on payment of a certain sum, by express stipulation, or the course of trade to be a lien upon them." ^ § 6. "A mortgage of personal property differs from a pledge. The former is a conditional transfer or conveyance of the property itself; and, if the condition is not duly performed, the whole title vests abso- lutely at law in the mortgagee, exactly as it does in the case of a mortgage of lands. The latter only passes the possession, or, at most, a special property only to the pledgee, with a right of retainer until the debt is paid, or the other engagement is fulfilled." ^ § 7. " In a mortgage of a personal chattel, the general property passes to the mortgagee, subject to be redeemed, according to the terms of the contract ; and if not redeemed within the time limited, the prop- erty becomes absolute in the mortgagee. The consequence is, that the mortgagee may sell or otherwise dispose of the chattel immediately. But in case of a pledge, the general property does not pass, but re- mains in the pawnor, the pawnee having only a special property or lien ; and in this case, although the pledge may not be redeemed by the time limited, yet, it retains the character of a pledge still." '' § 8. "It has been argued for the defendant, that as the possession did not continue in the mortgagees, the transfer is void as against the other creditors ; and this argument must prevail, if it be true, as the defendant contends, that there is no distinction in law betjveen a pledge and a mortgage of goods. A pawnee has only a lien on goods depos- ited as a pledge, which cannot be maintained but upon the basis of possession. If therefore he relinquishes the possession, although the debt remains unpaid, the lien is ipso facto extinguished. But there is ^ Coggs V. Bernard, 2 Ld. Eayni. 5 Jones v. Smith, 2 Ves. Jr., 378 ; 909. Doak v. Bank, &c., 6 Ired. 309. 2 Story, Bailra. 291. ^ 2 Story's Eq. § 1030; Brown v. 3 Barrow v. Paxton, 5 John. 261. Bement, 8 John. 98. 4 White r. Cole, 24 Wend, 117. ^ Pgr Phelps, J., Wood v. Dudley, 8 Verm. 435. NO. I.] PAWN OR PLEDGE, ETC. G03 an obvious and material distinction, in this respect, between a pledge and a mortgage. By the latter the right of property passes to the mortgagee, and he may dispose of it as he sees fit, subject only to the condition or right of redemption. Possession is not essential to his title. This distinction seems to have been disregarded or even over- looked in some cases; it is nevertheless perfectly well established."* § 9. It will be seen, however, that the question, whether a particular transaction is a pledge or a mortgage, is often a very nice one. The intendon of the parties has been said to determine it.'- So the dis- tinction appears to be often forgotten or rejected, where circumstances do not call for its immediate application. Thus, in an early case in Massachusetts,^ Parsons, C. J., remarked : " The conveyance by Weeks and Son to the plaiutills being a niortyaye, it is a pledge of a personal chattel." So Judge Story says : " In the Roman law, a pawn {piynus) was distinguished from an hypothecation (hi/potheca) by the circumstance, that in the former case possession was delivered to the creditor ; but in the latter retained by the debtor. The words, however, seem often to have been confounded." * So the Civil Code of Louisiana describes a mortgage as a species of, and bearing a re- semblance to, a pledge. 1. It is given to a creditor as security for his debt. 2. Both bind the thing subjected, and it cannot be subjected to a second creditor to the prejudice of the first. The points of difference are, 1. A mortgage is only on immovables and slaves, or rights to be hereafter specified, but a pledge may be of movables corporeal or in- corporeal. 2. A pledge requires delivery to the pledgee or a third person ; which is not necessary in a mortgage.^ § 10. So in a case where the question arose, whether a sale should be considered as absolute or conditional, the Court say : " The parties, and especially thcjilaintiff, may have intended that the contract should become a sale on the non-payment of the '$'270 within the eleven days allowed for the reimbursement of the loan. But as the writing states the consideration to be a loan of money, and shows expressly that the slave was delivered to the lender as a collateral security, the contract, according to legal intendment, is a pawn or inortgage. It is not material icJiethcr this be a mortgage or a paivn. The right of redemp- tion attaclies equally to both, and it is as dillicult to transmute the one as the other into a sale, by the operation of the original contract. Every agreement for preventing redcmi)tion of pawns is proscribed by 1 Per Wilde, J., Holmes v. Crane, 2 » Portland, &c. v. Sf ubbs, 6 Mass. 426. Pick. 610. * Story, Bailra. 2U0, § 286. 2 Wood V. Dudley, 8 Verm. 435. ^ Louis. Civ. Code, 1024. 604 APPENDIX. [no. I. tlie common law as empliatically as are similar agreements in mort- gages of real estate. Whatever may have been the actual intentions of the parties, the deduction of law from the fact of loan and of security is, that the contract was not a sale, but a pledge or mortgage only." ^ § 11. One leading characteristic of a mortgage consists in its being a written transfer, while a pledge derives its efficacy chiefly from delivery to, and possession by, the pledgee. It has been remarked, however, by the Court in New York : " I am not aware that it is necessary to the validity of a mortgage of goods and chattels that it should be in writing, except so far as the Act of 1833 in relation to the filing of mortgages of goods and chattels requires them to be in writing. That act declares that a mortgage not tiled shall be void as against the creditors of the mortgagor and subsequent purchasers and mortgagees in good faith. The controversy here is not between a mortgagee whose mortgage is not filed, and a creditor of the mortgagor or a subsequent purchaser or mortgagee. The defendant appears here as a wrong-doer." ^ § 12. On the other hand, a pledge may be created by a written transfer, where the property is not susceptible of manual delivery and possession, as in the case of stock in a corporation ; and the transac- tion may be a pledge, and not a mortgage, though the legal title passes to the creditor.^ • § 13. A transfer, in terras absolute, was made upon the books of a corporation, of shares in the company ; but accompanied by a promis- sory note for a certain sum, in which it was stated that the stock was deposited as collateral security. Held, a filedge, and not a mortgage.* § 14. Where property is delivered as security for a debt, with an agreement in writing, that, if the debtor does not return by a certain time to pay the debt, the creditor may dispose of the property and pay it ; this is a pledge, and not a mortgage.^ § 15. If, honci jide, and without fraudulent intent, a mortgagor of chattels makes a new and distinct contract to deliver them to the mort- gagee, with others, as security for the mortgage debt, and accordingly delivers them, and the mortgagee takes and holds them under the new contract ; he becomes pawnee of the whole ; even though the parties designed merely to perfect a supposed valid title under the mortgage.'^ § 16. An instrument, giving security upon a chattel, for the payment 1 Per Robertson, C. J., Hart v. Bur- * Ibid. ton, 7 J. J. Marsh. 322, 323. 5 Brownell v. Hawkins, 4 Barb. 2 Per Paige, J., Bank, &c. v. Jones, 491. 4 Com St. 506, 507. ^ Rowley v. Rice, 10 Met. 7 ; 11 Met. 3 Wilson V. Little, 2 Comst. 443. 333. NO. I.] PAWN OR PLEDGE, ETC. G05 of !i debt oil a future day, providiijfj for the debtor's contiuued posses- sion, till tliat day, and, on non-payment, autlioriziug the creditor to take possession, thougli using the words, " I hereby j^ledgc and give a lieu on," «&.c., is not a pledge, but a mortgage.^ (a) Sutherland, J., says : - "It has all the essential attributes of a mortgage ; it recites the original purchase, the payment of part of the consideration-money, the giving of two notes for the balance, and then states, that, for securing the payment of said notes, the said, &c., hereby pledges and gives a lien on said engine to said, &c., the said, &c., however, to retain the possession until the notes shall become due, and if they are not paid, then the said, &c., to take possession." § 17. Contract: "sold and delivered to, &c., as his own property. The condition of this bill of sale is such, that if I redeem said pi-op- erty within, &c., and pay the intervening expense, then this bill of sale to be void, otherwise of full force to convey said property to," «&c. Held, a mortgage, not a pledge. Phelps, J., says : " It is evident that a mortgage was contemplated. The general property is passed, subject to a redemption. It is a sale with condition. Had the parties in- tended to make it a mortgage, as distinguished from a pledge, they could not use stronger or more explicit language. Indeed, they could not add to it, unless they had used the negative language, that it was not to be consider,ed a pledge." ^ § 18. Bill of sale, by a tenant to his landlord, of his furniture, goods, &c., in the house, upon condition to be void on payment of rent, and not to impair the right of distraining. Held, a mortgage, not a pledge.'* § 19. Bill of sale, under seal, of horses, for the consideration of two hundred and ten dollars ; the vendee at the same time giving back an agreement, that, on payment of this sum to him in fourteen days, he would deliver the horses. The money was not paid or tendered within the time, but was tendered about six months after the date of the bill of sale. It appeared that the mortgagee had sold one of the horses, but not when it was done. Held, the transaction constituted a mortgage, not a pledge ; that by breach of condition the mortgagee acquired an absolute title ; and that the mortgagor could not maintain trover against him.^ 1 Langdon v. Buel, 9 Wend. 80. •* Barrow v. Paxton, 5 Jolm. 258. 2 Ibid. 83. '' Brown v. Beraent, 8 John. 96. 8 Wood V. Dudley, 8 Verm. 455. (a) So where the condition is contained in a separate defeasance. Wil- liams V. lloscr, 7 Mis. 556. 606 APPENDIX. [no. I. § 20. A deed of furniture was made to the plaintiff, conditioned to be void, if tlie maker should indemnify the plaintiff from his liability upon certain notes indorsed by him, but not yet due. The deed and furniture were formally delivered in presence of a witness, who alone was informed of the transaction, but the debtor remained in possession and use of the property as before. Held, the conveyance might con- stitute a mortgage or pledge, according to the intent of the parties ; and, as the debtor remained in possession, it could not be a pledge, and was therefore a mortgage, and, no actual fraud being shown, was valid against creditors of the mortgagor.^ § 20 a. No lien or right of property in the thing pledged passes to an assignee of the debt, unless the assignment of the debt, intended to be secured by the pledge, be accompanied with a delivery of such pledge to the assignee.^ § 21. With regard to the terms of a pledge, it is held, that goods may be pledged to a creditor, to be redeemed on payment of the debt, with the right, on the part of the creditor, to sell the pledge, pay the debt, and account for the surplus to the debtor, who may at all times waive his right to redeem, if he is to have such surplus ; and when the creditor sells the pi'operty, he becomes a trustee of the debtor for the surplus.^ And the same principle applies, where the debtor pledges the property jointly to several creditors ; or, by way of indemnity against their liability, to parties who become sureties on his account.* § 22. In regard to the property upon which a pledge creates a lien, it is said that by a pledge, not only the thing itself passes, but also, as accessory, its natural increase ; as, for instance, the young of a flock of sheep.® § 23. It has been said, " it may well be doubted, whether the owner of a chattel can pledge an undivided part of it, without delivering the whole to the pawnee." ^ § 24. The following decisions relate particularly to paper securities, or evidences of title, commonly termed " choses in action ; " which may be, as well as other personal property, the subject of pledge, vesting a special property in the pledgee, while the general title re- mains in the pledgor.'^ (a) 1 Ward V. Sumner, 5 Pick. 59. See * Ibid. Homer v. Savings, &c., 7 Conn. 478; 5 Story, Bailm. 297, § 292. New London, &c., v. Lee, 11, 112. ^ pgp Parsons, C. J., Portland, &c. 2 Johnson v. Smith, 11 Humph. 396, v. Stubbs, 6 Mass. 425. 3 Stevens v. BeU, 6 Mass. 339. "^ Garlick v. James, 12 John. 146. (a) Having only a special property, authority merely to receive the amount the pledgee of a promissory note has of it from the maker ; not to compro- NO. I.] PAWN OR PLEDGE, ETC. 607 § 25. It is held that ji chose, which is transferred as collateral security, is put under the dominion of the creditor to make his claim out of it, and is not in the nature or subject to the incidents of a pledge.^ § 20. But the holder of a negotiable note, as collateral security for the debt of the payee, is a holder for value, and may recover thereon against the maker, although he has paid the note to the payee without notice of the indorsement ; but he can recover only the amount for which the note is held as security.- § 27. If a negotiable note indorsed in blank be delivered to an officer by the holder, as a pledge for securing the amount of an execution in his hands for collection ; the officer may maintain an action on the note in his own name as indorsee, notwithstanding a subsequent wrong- ful sale of the note to himself at auction. Thus the plaintiff, a sheriff, having an execution against a debtor, received from him as a jjledge or collateral security for the execution a note signed by the defendant, and indorsed in blank by the execution debtor. The plaintiff kept the note two months, and then advertised it as the property of the indorser, and sold it at auction to himself as the highest bidder, of which he made return on the execution. Held, the plaintiff might recover the note from the defendant.' The Court say : * "It is not pretended by the counsel for the plaintiff, that he acquired a title to this note, by virtue of the sale on the execution. But the note was put into his hands as a pledge, with the name of the promisee indorsed upon it, and it was a negotiable note in its form. This was a transfer, "sufficient to enable the plaintiff to maintain the action ; for the indorse- ment comprehended an authority to bring a suit, and to receive the money of the promisor. Otherwise, upon non-payment of the debt by the indorser, the plaintiff had no security." § 28. A factor cannot pledge a bill of lading.*" * § 29. The pledgee of stock in a private corporation is not entitled to notice of the meetings, as owner.^ § 30. With regard to the parties to a pledge, it is held that one with a limited title may pledge pro tanto ; thus a tenant for life, for years, 1 Cliarabersburg, &c. v. Smith, 11 < Ibid. 534, 535. Penn. 120. 5 Story, Baihn. 299, § 296. " Valette v. Mason, 1 Smith, 89. *> JIcDaniels v. Flower Brook, &c., 8 Bowman v. Wood, 15 Mass. 534. 22 Verm. 274. raise witli him for a less sum, or to dis- the pawnor's default in redeeming, pose of it in any other manner till after Garlick v. James, 12 John. 146. 608 APPENDIX. [no. I. &c. So a pledgee may pledge liis interest ; ^ or assign the pledge to the extent of his legal interest therein.^ § 31. If any security, which is transferable by indorsement, whether legally assignable or not, be indorsed by the original holder, and pledged as collateral security for a debt ; the pledgee, or any other person having lawful possession of it, may also transfer or pledge it to another, who may hold it against the original owner.^ § 32. The following case relates to an assignment of the debt secured, without the property, resulting, in connection with other acts, in a loss of the security. § 33. After notice to a pledgee of an assignment of the property by the pledgor, the former transferred the note, without the property, to one not notified of the pledge, and at the same time promised to show him how he might secure it by attachment, and showed the property to an officer, in order that it might be attached by the indorsee and other creditors of the pledgor. The officer thereupon took possession of the property, not being notified of the lien, nor agreeing to hold for the pledgee. The assignee brings trover against the officer,' for refus- ing to give up the property. Held, the defendant was not an agent of the pledgee, authorized to keep possession for him ; that as the pledgee had disabled himself and the indorsee to return the property on pay- ment of the note, and perhaps even by transferring the note alone, he had waived his lien ; and that the action was maintainable.^ § 34. Although delivery is in general essential to the validity of a pledge, it may in some cases be symbolical, and not actual ; as, in case of goods at sea, delivery of the muniments of title ; or the key of a warehouse. So, if the pledgee is already in possession, the contract itself will be sufficient. So, if the pledgee delivers back the property to phe pledgor, as a special bailee or agent ; it is held that the pledge still remains valid. Otherwise, where he agrees it may be attached.^ 1 Hoare v. Parker, 2 T. R. 376 ; Mc- * Whitaker v. Sumner, 20 Pick. 399. Combie v. Davies, 7 E. 5; Story, 5 Story, Bailm. 300, § 297 ; ^ Ma- Bailm. 299, 295. comber v. Parker, 14 Pick. 497, 505, 2 Jarvis v. Rogers, 15 Mass. 389. 509 ; Whitaker v. Sumner, 20 Pick. 3 Ibid. 13 Mass. 105 ; 15, 389. 399 ; Johnson v. Smitli, 11 Humph. 396. 1 Judge Story says (Story, Bailm. 292, positive provisions of some statute, or they § 288) : " There are cases where mortgages are the result of some contract, stipulating of chattels are held valid, without any for the possession of the mortgagor, under actual possession by the mortgagee; but circumstances in which such possession is they stand upon very peculiar grounds, deemed compatible with good faith, and and maj' be deemed exceptions to the gen- does not hold out false colors to creditors cral rule. They either stand upon the or purchasers." NO. I.] PAWN OR PLEDGE, ETC. 609 So, if the actual delivery or personal possession of the pledge be im- practicable or inconvenient, a special property may vest in the pledgee without delivery or possession.^ Thus the mere showing of logs in a boom to the pawnee was held sufficient to transfer the title. ^ § 35. With regard to the liability secured by a pledge, it is held that a pawn may he security for other engagements than a debt." § 3G. Upon the question, already considered at some length in con- nection with mortgages of real and personal estate (chaps. 12 and 39), how far future debts may be thus secured, it is held, with more special reference to a pledge, that if there are any subsequent engagements, intended by the parties either tacitly or expressly to be attached to the pledge, the pledgee has a title and right of possession, co-extensive therewith.'* But he cannot detain the thing for a former debt, unless there is some just presumption that such was the intention of the parties.^ So, the pledge cannot be retained for a subsequent debt, unless there is just ground of presumption that it was incurred upon the credit of the pledge.® § 37. The pledge applies not only to the debt or other engagement, but also to the interest, and all the incidental charges and expenses due thereon. If interest is expressly agreed for, the pledge will cover interest, such being the presumed intention. So where interest is not expressly provided for, but becomes due on account of delay in pay- ment of the debt. So the pledge covers expenses incurred in relation to it, if necessary and proper for its protection and preservation ; other- wise if merely useful, unless incurred by the express or implied authority of the pledgor.'' § 38. With regard to the rcinedies of the pledgor and pledgee, re- spectively, it is held, that the pledgee may sell the property upon default of payment at the time ; or, if no time of payment is fixed, after demand and notice. If the pledgor is absent or cannot be found, judicial proceedings should be had, to bar his right of redemption.* Upon this subject Judge Story says : ° " The common law of England, existing in the time of Glauville, seems to have required a judicial process to justify the sale, or at least to destroy the right of redemp- tion. But the law, as at present established, leaves an election to the pawnee. He may file a bill in equity against the pawner for a fore- 1 Jewett V. Warren, 12 Mass. 300. 6 2 Kent, 584. ■■* Ibid. 7 Story, Bailm. 306-308. See Wheel- 3 Isaack i;. Clark, 2 BuLstr. 30G. er v. Ncwbould, IG N. Y. 392. * Demandray v. Metcalf, Prec. Ch. ** Gurlick v. James, 12 John. 146. 419. 9 Story, Baihn. 310, § 308. * Jarvis v. Rogers, 15 Mass. 389. VOL. II. 39 610 APPENDIX. [no. I. cloPiire nnd sale ; Of he may proceed to sell ex mere motu, upon giving due notice of his intention to the pledgor. In the latter case, if the sale is bond Jicle and reasonably made, it will be equally as obligatory as in the first case. But a judicial sale is most advisable in cases of pledges of large value ; as the courts watch any other sale with un- common jealousy and vigilance ; and any irregularity may bring its validity into question. With the exception of Louisiana, where the civil law prevails, the English rule seems generally adopted in America." ^ § 39. The pawnee may i)roceed personally for the debt, without selling the pledge." (o) And if, in consequence of any default or coa- 1 Story, Balhn. 311, 312, § 310. '^ South, &c. v. Duncomb, 2 Stra. 919. (rt) The rule may be considered well settled, as stated in the text. The fol- lowing English case fully sustains it, and does not appear to have been over- ruled. Upon a trial at bar in an action for money lent, it appeared that £8000 was advanced to the defendant by the plaintiffs in the year 1720, upon a pawn of £2000 stock. And the defendant not repaying it, the question to be tried was, whether the plaintiffs could pro- ceed against the person of the defend- ant, or must stand to the remedy against the stock. And after proof of many particulars, to induce a belief that in these loans no regard was had to the personal security ; the Court left it to the jury upon this point, that where money is generally lent upon a pledge, it will not deprive the lender of his remedy against the person ; and that to discharge the person of the bor- rower, there must be a special agree- ment to stand to the pledge only. And the jury found for the defendant. The South Sea, &c. v. Duncomb, 2 Stra. 919. An early case in Massachusetts (Cleverly v. Brackett, 8 Mass. 150) is sometimes cited in support of the con- trary doctrine, that the pledgee cannot proceed to recover the debt by an at- tachment without first restoring the pawn. It may be doubted, however. wliether this case fully sustains such a general rule, even if it were not repug- nant to other decisions. The case was as follows. It was an action of tres- pass for taking a gelding and two heifers. The defendants justified the taking by virtue of a writ of attach- ment in favor of one of them against the plaintiff, the other being an ofKcer ; upon which the plaintiff delivered, and the creditor accepted, the gelding as a security in part ; and afterwards, by virtue of the same writ, the gelding be- ing insuflBcient, the heifers were at- tached. The presiding judge at the trial expressed the opinion, that in at- taching personal property to secure a debt, the creditor and officer, if suffi- cient had not been taken before deliv- ery of the summons, were justifiable in making a further attachment ; but if sufficient had been previously taken, then a further attachment, after deliv- ery of the summons, or any proceeding oppressive in fact to the supposed debtor, was not to be justified. No attachment of the gelding being re- turned, and the delivery and accept- ance of the gelding as a security upon the agreement of the parties being va- cated by the determination to attach, the judge directed a verdict for the plaintiff. In setting aside the verdict, the Court remark (Ibid. 151): "After NO. I.] PAWN OR PLEDGE, ETC. 611 version of the pawnee, the pawner has by action recovered the value of the pawn, not deducting the debt ; the debt is still recoverable. It seems, in an action brought for the tort, the pawnee has a right to such deduction.^ § 40. If tliere is any agreement between the parties as to the time or mode of sale, they will be bound thereby. - § 41. A pledgee cannot sell till a demand, though the debt is paya- ble immediately without demand, and thougli by the terms of the pledge he may sell at private or public sale without notice to the debtor.^ § 42. Where a thing pledged is wrongfully taken by a stranger, it has been held that the pawnee may recover from him its full value, altliough pledged to him for less ; being answerable to the pledgor for the excess.^ § 43. If goods pledged ai'e attached by a creditor of the pledgor, without paying or tendering the debt secured by the pledge, according to (Mass.) Statute 1829, ch. 124; in a suit by the i)ledgee against the officer, the measure of damages is the value of the goods, not the amouut of the debt.^ § 44. But it has been held that, in case of a pledge with power of 1 Ratcliffe v. Davis, Yelv. 179 ; Jar- vis V. Roffers, 15 Mass. 389. •^ Stevens v. Bell, G Mass. 339. he (tlie creditor) had received the geld- ing as ii ])ledge for his demand against the plaintiff, he could not lawfully attach other property for the security, without first returning the pledge ; for he could not know how for the pledge was com- petent to his full security. By thus unlawfully attaching tlie heifers, there- fore, he committeil a trespass. And if the constable knew of tiie gelding's having been pledged as it was, he also was a trespasser in attaching the heif- ers. As the case is much involved, and the whole testimony furnished at the trial was very slender, we order the verdict to be set aside." Mr. Rand, the learned annotator of the Massachusetts Reports, remarks upon this case : " There seems to be no reason why he might not lawfully have attached in tliis case as well as in the case of a mortgage of real estate." And Judge Story, in noticing the case 3 Wilson V. Little, 2 Comst. 443. * Lylc V. Barker, 5 Binn. 457. 5 Pomeroy v. Smith, 17 Pick. 85. as one of the " few peculiarities in the local jurisprudence of Massachusetts," prefixes to it the qualification, " it seems to have been held," &c. Story, Bailm. 357, 358. See also Taylor v. Cheever, Law Rep., May, 185G, p. 47. In the subsequent case of Swett v. Brown, 5 Pick. 178, the less question- able rule was established, that, if the pawnee causes the pawn itself to be at- tached in a suit for the debt, he there- by waives his lien as against another creditor of the debtor, who had pre- viously sunnuoncd him by the trustee process. But an attachment of tlie pledge for other debts will not extin- guish the lien, if the pledgee at the time notify the officer of his intention to the contrary, and require him to keep possession accordingly. Town- send V. Newell, 14 Pick. 332. See Avendale v. Morgan, 5 Sneed, 703. 612 APPENDIX. [no. I. sale after a certain time, the pledgee gains only a special property, and in a suit against a third person recovers only the amount of his debt.i § 45. Where there is no agreement that the pledgee shall sell the property, he cannot be compelled to do it ; and, until payment of his debt, he cannot be charged as trustee of the pledgor.- § 4G. If one holding a pledge, to secure a debt due himself, and also a debt due another person, agree to dispose of it to the best ad- vantage, and apply the proceeds to both debts, he has a right, in case the proceeds are insufficient to pay both, to pay his own first, and apply the balance to the other.'^ § 47. In general, where one receives bonds and notes for collection, as collateral security, he is bound to use due diligence ; otherwise, if they are lost through the insolvency of the parties, he is liable for their value.* § 48. Pledge, as collateral security, of two notes, which the pledgee was to collect, and deduct his debt from the proceeds. The maker had abundant property, from which the notes might be collected, and the pledgee delayed enforcing them for five months, when the maker became insolvent ; but not having been suspected of embarrassment, and the pledgor not having requested the holder to collect the notes, held, the latter was not chargeable with the amount of the notes.^ § 49. In general, a bill in equity does not lie for the redemption of a pledge, the pledgor having a perfect remedy at law. Otherwise, where an account or discovery is required, or the pledge has been assigned.® § 50. In case of a wrongful sale of the pledge, the pledgor may sue without a tender of the debt.'^ And a liberal valuation will be given to the property in his favor. § 51. Certain stock being pledged to secure a debt, and wrongfully sold by the pledgee, the debtor offered to pay the debt, and requested a return of the stock. The pledgee promised to return it, or other shares of the same kind ; the debtor waited from time to time for him to do so ; and in the mean time the stock rose in value. Held, in an action for wrongfully selling the stock, the debtor might recover the increased value. ^ § 52. In an action against the holder of a pledge by the owner to 1 Brownell v. Hawkhis, 4 Barb. 491. « Jones v. Smith, 2 Ves. 372, n. ; 2 Badlam v. Tucker, 1 Pick. 389. Doak v. Bank, &c., 6 Ired. 309. 3 Marshall v. Bryant, 12 Mass. 321. ^ Wilson v. Little, 2 Comst. 448. * Noland v. Clark, 10 B. Mon. 239. 8 Ibid. 5 Goodall V. Richardson, 14 N. H. 567. NO. I,] PAWN OR PLEDGE, ETC. 613 recover its value, the defendant may set off the debt secured thereby, though there have been a tender and refusal.^ § 53. If a pledgee pledge the property, for a debt greater than the one for which he received it as security, the owner may redeem it from the second pledgee by paying the amount of his (the first pledgor's) debt.2 § 54. The second pledgee may discharge himself, by delivering the pledge to his debtor, at any time before the owner offers to redeem it.' § 55. Similar to a pledge of personal property, is that form of con- ditional transfer term hypothecation ; the chief characteristic of which seems to be, that the creditor does not, as in case of pledge, take pos- session of the property. Judge Story says : " There are few cases, if any, in our law, where an hypothecation, in the strict sense of the Roman law, exists : that is a pledge without possession by the pledgee. The nearest approaches, perhaps, are the cases of holdei's of bottomry bonds, of material-men, and of seamen for wages in the merchants' service, who have a claim against the ship, in rem. But these are rather cases of liens or privileges, than strict hypothecations." * § 5G. Assumpsit, for one quarter of the proceeds of sale of a ship and of her previous earnings. The plaintiff offered in proof of title a bill of sale of one quarter, from a party who with three others was the first owner. The defendant offered a paper, prior in execution to the plaintiff''s purchase, from all the first owners, agreeing to "pledge" to the defendant the vessel, then being built, as security for his advances thereon, and to sell him any part of the vessel for so much per ton. The defendant afterwards sold her ; but his advances exceeded the proceeds of sale and earnings. Held, the instrument last named was invalid against the plaintiff's title, being neither an absolute sale, a mortgage, nor a pledge.^ Parker, C. J., says : ° " The writing did not transfer the absolute title in the vessel, for that would have been con- trary to the intention of the parties, nothing more being designed than a security for advances which the defendant might make towards the building and equipping the vessel; for in the same instrument provi- sion is made for a future purchase, if the defendant should elect to buy any part, unless the owners should themselves dispose of her before. The instrument does not amount to a mortgage, for it does not appear that there was any delivery of the vessel ; and a delivery is necessary ^ Jarvis i>. Rogers, 15 Mass. 389. 2 Ibid. a Ibid. « Story, Baiim. 292, § 288 ; 293, § 290; 298, § 294. * Bonsey v. Amee, 8 Pick. 236. 6 Ibid. 237, 238. 614 APPENDIX. [no. I. to constitute a mortgage of a chattel ; besides, the vessel not being in existence as such, the instrument created only an executory contract, not a sale, conditional or absolute. Neither can it amount to a pledge, because to constitute this kind of contract there must be not only a delivery over, but a continued possession by the pledgee of the thing pledged ; and as soon as the thing is restored, the pledge ceases to exist. Now it does not appear that there was any delivery over or possession of the vessel. The transaction has more analogy to a con- tract of bottomry, than to either species of contract mentioned. But it cannot avail in that form, because no ship was in existence when the contract was made, and the circumstances are not such as will justify a bottomry." (a) § 57. But it has since been decided in the same State, that, although there cannot be a technical pledge of a chattel not in existence, there may be a hypothecation, by which a lien will arise as soon as the chat- tel is created. § 58. By a contract between two lessees of a brick-yard and a third person, it was agreed that the latter should make bricks in the yard, and pay the lessees at a certain rate for the clay, and that the lessees should buy wood, sell the bricks, &c. ; that the profit or loss should be divided ; and that the lessees might retain the bricks, to the extent of their advances from time to time to the manufacturer. Afterwards the manufacturer drew an order on them, to pay the payee what might be due from sales, after deducting their advances. Subsequently the lessees assigned all their property to the plaintiffs, including their in- terest in this contract, and the plaintiffs went into the yard and notified the manufacturer of the assignment, and he assented to it, and agreed to act as agent for the plaintiffs, they agreeing to make advances as the lessees were to do under the contract. The plaintiffs took possession of the yard and property therein, and gave charge of it by writing to the manufacturer, directing him to sell the bricks by retail for cash, and, after receiving a certain sum, to deposit in a bank to the credit of the plaintiffs. A creditor of the manufacturer having attached the bricks, the plaintiffs replevy them from the officer. Held, the right of the lessees to retain the bricks, as security for their advances, was assign- able, with the consent of the manufacturer ; that the plaintiffs had a lien paramount to the attachment ; and that the order above referred to was admissible in evidence, as tending to prove the original contract on the part of the manufacturer, by which the lessees were to retain (a) Judge Story says (Bailm. 292, n.), this case seems contrary to the current of authorities. See ch. 41, § 31. NO. I.] PAWN OR PLEDGE, ETC. 615 his part of the bricks, as oolhiteral security.^ Putnam, J., says :'- " It was au ajireeincMit for the pledgiu<^ of tho bricks as tliey should be made. It is true, tliat where tlie property is to be tliereafter acquired, it is not strictly and technically a pledge ; it is rather an hypothecation . but when the title is acquired in futuro, the right of the pledgee attaches immediately upon it. Every brick as it was formed may well be considered as delivered to the plaintiffs in part execution of the con- tract. The whole were put into kilns and burnt in the plaintiffs' yard ; for, as assignees of the lessees, they legally held the yard in their possession during the term." § 59. Notes were given at three months, secured by a hypothecation of stock, which the lender agreed to hold for that time. Held, the days of grace upon the notes did not apply to the pledge, but this might be sold before the notes became due. It was further held, that the sale must be made, not at the Board of Brokers, but at public auction, unless there were an agreement to the contrary ; and having been made at the Board, the pledgor was held entitled to the highest value of stock, being one i^er cent more than the price paid, after the time of sale.^ («) 1 Macombcr v. Tarker, 14 Pick. 497. 2 i],ia. 505, 506. 3 McCullougli V. Rankin, N. Y. Sup. Court, Oct. 1851, Law Kep., Dec. 1851, p. 449. (a) There are various topics in the law of pledges, which it is foreign from the plan of this work to consider ; some of which are governed by the same rules already stated at length in regard incurred in keeping it ; the effect of the lapse of time or tlie Statute of Lim- itations upon the respective rights of the parties ; the construction given to an agreement, that the pledge shall be to mortgages, and others are peculiar absolutely forfeited by failure to pay to the pawn or pledge, strictly so called, the debt at the time appointed ; • and as a species of hailment. Sucb are the the right of creditors of the pawnor to pawnee's right to use the property ; his levy upon the property pledged, responsibilit}' for it, in case of injury or The consideration of the whole sub- loss, involving the nice distinctions as ject may be properly closed with an to the degrees of care and diligence im- extended citation of the most learned posed upon bailees of diHerent classes; and elaborate judicial opinion in relation his liability to render an account of to the law of pawn or jiledge which is the income and profits derived from to be found in the English or American the pledge, while in his possession, and his claim for any expenses necessaril}' ^ The pleilgee cannot appropriate the property to liimself upon tlie (iofaiilt of the pledgor, even though it should be so agreed between them ; for such an ngree- ment, as in case of niortgagCB, is repudi- ated by the law, as unconseional)ie and against public policy. Story, Bailm. 317. Reports.- This may properly be intro- duced by reference to the case of Kat- - " In the very able and learned exam- ination of the riglits and duties of a pawnee, in the case of Cortelyou v. Lans- ing (2 Caines, Cas. in Er. 201), most of the law on tiie subject of pledges has been col- lected." Per Thompson, (J. J., Garlick v. James, 12 John. 149. 616 APPENDIX. [no. I. cliff t^. Davis (Yelv. 178), wliere it was held, that if floods are pawned, and no particular time of redemption fixed, the pawnor may redeem at any time durin^r his life, notwithstanding the deatii of the pawnee. Also, that if the pawnee deliver the pledge to a third person, yet the tender for redemption must be made to the pawnee, or his representa- tive if he he dead. Also, that after the pawnor's death his executors cannot redeem. The American edition of Yelverton's Reports, annotated by Judge Metcalf, contains a valuable note to the case above cited, which also embodies the very learned decision of Chancellor Kent, above referred to,. upon the same subject. The entire note is hereto sub- joined. Yelv. 179, n. 1. " The decision of the points, which arose out of the special verdict in the text, is conformable to the ancient law of pawns, and to all the subsequent de- cisions, namely, that the tender was well made to the executor; that the special property in the pledge, after the tender and refusal, revested in the plain- tiff; that the general property had been constantly in him ; that the pawnee's death did not destroy the right of re- demption ; that refusal by the defend- ant, after tender to the executor, was a conversion, and that the defendant had only the bare custody of the pawn. But the ohitei- dicta, which are ascribed to a majority of the judges by Bulstrode, Noy, and Yelverton, in their respective reports of the case (contrary to Croke's statement), are not to be received as law. "In the learned judgment given in the case of Cortelyou v. Lansing, ubi sup., the subject is fully discussed. An abstract of the opinion given by Mr. Justice Kent, in that case, will illustrate a subject which was before involved in doubt and difficulty. " There is a difference between a mortgage of goods, and a pledge, or pawn. A mortgage is an absolute pledge, to become an absolute interest, if not redeemed at a fixed time ; and is, in certain cases, valid without delivery. The legal property passes, with a con- dition of defeasance. A pledge or pawn of goods is a deposit of them as a se- curity ; and delivery is essential. The general property does not pass, as it does in case of a mortgage, but remains in the pawnor. Dig. lib. 13, tit. 7, § 9; 1 Hub. 291, § 15; Bracton, 99, b. Bro. Abr. Pledges, 20; Pow. on Mortg. 3; Jones V. Smith, 2 Ves. Jr. 378. The mortgage, and the pledge or pawn of goods, have, however, generally been confounded. " Glanville observes (lib. 10, ch. 6), that a loan is sometimes made on the credit of a putting in pledge, and the pledge may consist of chattels, lands, or rents. Sometimes possession is imme- diately given of the pledge, on receipt of the loan, and sometimes it is not. Sometimes the thing is pledged for a certain period, and sometimes indef- initely. When a thing is pledged for a definite period, it is either agreed that if, at the time appointed, the debtor shall not redeem his pledge, it shall then belong to the creditor, so that he may dispose of it as his own; or no such agreement is made. In the former case, the agreement must be adhered to ; in the latter, the term having ex- pired without the debtor's discharging the debt, the creditor may complain of him, and the debtor shall be compelled to appear and answer in court, by a writ (the form of which is given in ch. 7), thus : ' Command N. that justly and witliout delay, he redeem such a thing, which he has pledged to R. for a hun- dred marks, for a term which is past, as he says, and of which he complains that he has not redeemed it ; and unless he does so,' &c. In ch. 8, he says, if the debtor confesses in court that he pledged the thing in question for the debt, he shall be commanded at a reasonable period to redeem his pledge, and un- less he comply, liberty shall be given NO. !•] PAWN OR PLEDGE, ETC. 617 to tlie creditor, from that time, to treat tlie pledge as his own projjerty, and do whatever lie chooses with it. If a thing he pledged indefinitely, and without any period being fixed, the creditor may, at any time he chooses, demand the debt. The debt being discharged by the per- son owing it, the creditor is bound to restore to him tlie thing pledged, with- out any deterioration. See Beanie's translation of Glanville, 232-257 ; 1 Reeves Hist. 101-163. Tin's authority establishes two points : 1st. That if the pledge was not redeemed by the time stipulated, it did not then become ab- solute property in the hands of the pawnee, but he was obliged to have re- course to the aula regis, and to sue out an original writ, in order to obtain au- thority to dispose of the pledge ; 2d. That if the pledge was for an indefinite term, tlie creditor might at any time call upon the debtor to redeem, by the same process of demand. By what authority the judges in the time of James I. advanced a different doctrine on the subject, is not made to appear. " In the case in the text, it is said that if no time is limited for redemption, the pawnor has time to redeem it during his life ; but if he die without redeeming, the right is gone, and his representa- tives cannot redeem. In Bulstrode's report of the case the only reason stated is, that it would be mischievous to com- pel the pawnee to keep the goods thus pawned, for such an indefinite time, when he has paid sufficiently for them. This objection would have been found to have no validity, if the judges had attended to the law as laid down by Glanville, who says the creditor may quicken his debtor's delay, and demand his debt at any time, by a process which he has stated. In Noy's report, as well as in the text, the reason stated is, that the pledge is a condition personal, and extends only to the person of him who pawned it. This ground of the opinion is equally unsound. A pledge is not a property created upon a condition of defeasance, like a mortgage. It has no analogy to the case of a right which is absolute, to vest or to be defeated on the happening of an event ; nor is it susceptible of that strict construction, unless it be so modified by the express agreement of the parties. Least of all is it a condition personal, to be per- formed exclusively by the pawnor. There is nothing of this in the nature of the contract; and in most cases, as when the time of payment is mentioned, it is agreed that the right may remain perfect in the representatives of the parties. This notion of a pledge, rest- ing on the performance of a condition to revest the right, as in the case of a mortgage, probably led to the decision in Capper r. Dickinson, 1 Kol. Rep. 315, that if goods pawned for a limited time are not redeemed at the day, they are forfeited, and may be sold at the will of the pawnee. This doctrine is also laid down in the office of executors. But this is contrary to the contract of pledge ; is repugnant to the ancient law, and is contradicted by Baron Comyns, who is of himself a great au- thority. Com. Dig. Mortgage by Pledge of Goods, B. It is also contrary to the civil law, and to the law of France, Holland, and Scotland. Hub. Vol. 3, 1072, § 6; 1 Domat, 362, § 9, 10; 2 Ersk. 455. An extra-judicial dictum of Lord Chief Justice Treby, 1 Ld. Raym. 434, and another of Lord Hard- wicke, 1 Ves. 278 (and both supported only by the case in the text), which go to show that the pawn is not redeem- able after the pawnee's death, are the only remaining authorities on which the proposition has rested. In Tucker V. Wilson, 1 P. W. 2G1, and Lockwood I'. Ewer, 2 Atk. 303, and Kemp v. West- brook, 1 Ves. 278, it was said, that a pawnee of stock was not bound to bring a bill of foreclosure, and might sell without it. But in the two first cases, the stock had been, in the first instance, absoluti'ly transferred to the mortgagee with a defeasance thereto, that the as- 618 APPENDIX. [no. I. signmcnt slioukl be void, or the stoL'k retransferred on piiymcnt at the day. Tliey were cases, therefore, not of a pledge, but of a mortgage of goods ; and though it is nowhere stated in what manner the mortgagee is to sell, yet in the first of these cases there was a previous notice to the opposite party, according to the rule of the civil law ; and the giving of this notice was as- serted to be the constant practice. The last case was strictly a pledge of chat- tels to secure a loan, without a speci- fied time of payment ; and the assignee of the pawnor, who had become a bank- rupt, icas allowed to redeem. Demandray V. Metcalfe, Free. Ch. 420 ; 2 Vern. 691, 698; Gilb. Eq. Eep. 104; 1 Eq. Cas. Abr. 324 ; s. c. and Vandersee v. Willis, 3 Bro. C. C. 21, are cases of pledge, and perfectly in point. In the one case, there was a pawn of jewels, and in the other, of bonds and securities. In both cases, the time of payment had elapsed in the lifetime of the pawnor ; but tlie executors, on a bill to redeem on pay- ment of the debt and interest, obtained a decree accordingly. It is said, indeed, in the first case, that the executors could not have back the jewels, without the assistance of chancery. If by this was meant the identical chattel pawned, it was perhaps correct ; but if the ob- servation meant that executors had no remedy but in equity, it must be a mis- take ; for a court of law has complete jurisdiction over the subject, and is equally competent to grant relief where the right of property is not extinguished. It would be unreasonable to turn the plaintiff" round to another forum, when there are no technical difficulties to im- pede, nor any defect of authority to give him redress at law, by restoring to him, if not the specific thing, yet its equivalent. If a court of law will per- mit one party to demand his debt after the time, it will permit the other party to tender and redeem. In the South Sea Company v. Duncomb, 2 Stra. 919, it was decided, that where the pawnor of stock did not pay at the day stipu- lated, the pawnee had his election to sue for the debt, or to stand to his remedy against the pawn. The Court did not state the remedy ; but still there was to be a remedy under the sanction of law ; and the only remedies hitherto sug- gested in the books, are the process by writ, as stated in Glanville, the bill of foreclosure, as hinted in other cases, and the sale by the pawnee, after notice, in cases of the transfer of stock, as seems to have been the practice. From this review of the cases, Kent, J., con- cludes, that whatever right to redeem existed in the pawnor at his death, that right descended entire and unimpaired to his representative, and the decision of the Court was made accordingly. " Kent, J., ubi sup., says the expres- sion in the text, that the pawnee has his life, as a time to redeem, when no time of redemption is fixed, must be taken with this qualification, that the pawnee does not, in the mean time, call upon him to redeem. A sale, without such call and notice, was, in the case then before him, held to be a conver- sion. A similar decision has been made in Pennsylvania. Brown's Rep. 176, De Lisle r. Priestman. Except in cases of special agreement, the Roman law never allowed a pledge to be sold by the creditor, but upon notice to the debtor, and the allowance of a year's redemption. 1 Hub. 157, § 2 ; 3 ib. 172, § 6 ; Perezins on the Code, Vol. 2, tit. 34, § 4, 5. And as this was not suffi- ciently observed, Justinian regulated the method of foreclosure by a particular ordinance, by which two years' notice, or two }-ears after a judicial sentence, was allowed to the debtor. See au- thorities cited by Kent, J., 2 Caines, Cas. in Er. 213. " The creditor may sue for his debt, and proceed in the same manner, as he might if no pledge had been made. But on payment of the debt, he must restore the pledge. Glanville, lib. 10, ch. 6 ; 12 Mod. 564; Anon. 2 Stra. ubi sup.; 2 NO. I.] PAWN OR PLEDGE, ETC. 619 Starkio's Rep. 72; Vin. Abr. Pawns. Ace. 8 Mas.s. 150, Cleverly v. llrackett et ah, contra. " Tliat tlie executrix, in the case in the text, was entitled to recover tlie £25, notwitlistanding the tender, seems very clear from the authorities, though the reporter thought it a strange doc- trine." See further, in rehition to pawn or pledge, Ducll v. Cudlipp, 1 Hilt. IGG ; Parsons v. Overmire, 22 III. 58; Hilton V. Waring, 7 Wis. 492; Cater v. Mer- rell, 14 La. An. 375; Dix v. TuUy, 14 ib. 45G ; Depuy v. Clark, 12 Ind. 427 ; Culver V. Ik-uedict, 13 f Jray, 7 ; lioberts V. Sykes, 30 Barb. 173 ; Morris, &c. v. Lewis, 1 Beasl. 323; Dortch v. Frazier, 1 Head, 243; Bank, &c. v. Dubuque, &c., 8 Clarke, 277 ; Bodenliammer V. Newsoni, 5 Jones, 107 ; Gcfliken v. Slingerland, 1 Bosw. 449 ; Cardin v. Jones, 23 Geo. 175; Davey v. Bow- man, 8 Cal. 145; Wood v. INIorgan, 5 Sneed, 79 ; Uurfee v. AlcClurg, G Mich. 223. / 620 APPENDIX. [no. II. II. ( STATUTORY PROVISIONS IN RELATION TO bIoRTGAGES OP PER- SONAL PROPERTY. The following are the statutes of the several States, relating to mortgages of personal property. Being mostly of recent enactment, and the subject itself being comparatively a new one, it seemed advisa- ble to copy the several acts at length, with slight abbreviations, instead of presenting a mere summary or abstract of them, as was done in reference to mortgages of real estate. These statutes, it will be seen» chiefly pertain to delivery and possession, registration, foreclosure and redemption, and the seizure of mortgaged personal property upon legal process against the mortgagor. With a genei-al similarity, the laws of the different States vary in many of their minute and detailed provi- sions. Possibly some enactments may have escaped notice. For modifi- cations by I'ecent statutes, if any, reference must be had to the statutes themselves. Massachusetts Revised .Statutes, p. 473, ch. 74. (See Mass. Gen. Stats.) : — § 5. No mortgage of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless pos- session be delivered to, and retained by, the mortgagee, or unless the mortgage be recorded by the clerk of the town where the mortgagor resides. § 6. Nothing contained in the preceding section shall avoid or defeat any contract of bottomry, or respondentia, nor any transfer, assignment, or hypothecation of any ship or goods, at sea or abroad, if the mort- gagee shall take possession of such ship or goods, as soon as may be after the arrival thereof within this State. § 7. The said clerk, upon payment of his fees, shall record all such mortgages, that shall be delivered to him, in a book to be kept for that purpose, noting in said book, and also on the mortgage, the time when the same is received ; and every such mortgage shall be considered as recorded, at the time when it is left for that purpose in the clerk's '' office. Massachusetts Statute, 1843, ch. 72. Supplement, p. 262 : — § 2. Every mortgage of personal property, whenever the mortgagor shall retain possession, shall be recorded as well by the clerk of the NO. II.] STATUTORY PROVISIONS. — MASSACHUSETTS. 621 town where the mortgagor resides, as by the clerk of the town iu which he principally transacts his business, or follows his trade or calling. Massachusetts Statute, 1851, p. 588, ch. 57 : — § 1. It shall not be necessary to the vjilidity of any mortgage, con- tract of bottomry, or respondentia, or any transfer, assignment, or hy- pothecation of any ship or vessel, that the same shall be recorded by any city or town clerk. Massachusetts Revised Statutes, 556, ch. 90: — § 78. Any personal property of a debtor, subject to any morlgagc, pledge, or lien, and of which the debtor has the right of redemption, may be attached and held, in like manner as if it were unincumbered, provided the attaching creditor shall pay or tender to the mortgagee, pawnee, or holder of the property, the amount for which it is so liable, within twenty-four hours after the same is demanded. § 79. Every such mortgagee, pawnee, or holder, shall, when demand- ing payment, state, in writing, a just and true account of his debt or demand and deliver it to the attaching creditor or officer ; and if the sum is not paid or tendered to him within twenty-four hours thereafter, the attachment shall be dissolved, and the property shall be restored to him, and the attaching creditor shall moreover be liable to the mort- gagee, &c., for any damages sustained by the attachment. § SO. If such mortgagee, &c., shall demand and receive moi'e than the amount due to him, he shall be liable for the excess, with interest thereon, at the rate of twelve per cent a year, to be recovered by the attaching ci'editor, in an action for money had and received. § 81. When any property, attached and redeemed, as aforesaid, shall be sold, either on mesne process or on execution, the proceeds thereof, after deducting the charges of the sale, shall be first applied to repay the attaching creditor the amount so paid by him, with lawful iutei'est. § 82. If the plaintiff, after having redeemed the goods so attached, shall not recover judgment in the suit, he shall nevertheless be entitled to hold the goods, until the defendant shall repay to him the sum that he shall have paid for the redemption, or as much thereof as the defend- ant would have been obliged to pay to the mortgagee, &c., if they had not been attached, with interest from the time v/hen the same shall be demanded of the defendant. Massachusetts Revised Statutes, 646, ch. 109 : — § 25. When goods, in the hands of any person summoned as a trustee, are mortgaged or pledged, or in any way liable, for the pay- ment of any debt to him, tho attaching creditor may be allowed, under 622 APPENDIX. [no. II. an order of the Court, to pay or tender the amount due to the trustee, and the trustee shall thereupon deliver the goods to the officer who holds the execution. § 26. If the goods are held for any purpose, other than to secure the payment of money, and if the contract, condition, or other thing to be performed, is such as can be performed by the attaching creditor, with- out damage to the other parties, the Court may make an order for the performance thereof by him ; and, upon such performance, or a tender thereof, the trustee shall deliver the goods to the officer. § 27. All goods thus received by the officer shall be sold and dis- posed of as if they had been taken on an execution in the common form ; except that out of the proceeds of the sale, the officer shall repay the attaching creditor, with interest, or indemnify the ci'editor for such other act or thing as he shall have done or performed, for the redemp- tion of the goods. § 28. Nothing contained in any of the preceding sections shall pre- vent the trustee from selling the goods for the payment of his demand, at any time before it shall be paid or tendered, provided such sale would be authorized by the terms of his contract. Massachusetts Statute, 1844, ch. 148. Supplement, 297, 298: — § 1. The time within which an attaching creditor shall pay the sum due after demand by the mortgagee, &c., is hereby extended to ten days. § 2. Any personal property of a debtor, subject to a mortgage, and being in the possession of the mortgagor, may be attached as if unin- cumbered, and the mortgagee, or his assigns, may be summoned in the action as trustee, to answer such questions as may be put to him or them, by the Court or their order, touching the consideration of the mortgage, and the amount due thereon. § 3. If, upon such examination, or verdict of a jury, as hereinafter provided, it shall appear to the Court, before whom the action, on which the attachment is made, is bi'ought, that the mortgage is bond fide, the Court, having first ascertained the amount that is justly due upon the mortgage, may direct the attaching creditor to pay the same to the mortgagee, or his assigns, within such time as they shall order ; and if the attaching creditor shall not pay or tender to the mortgagee, or his assigns, the sum so directed by the Court to be paid, within the time prescribed, the attachment shall be void, and the property be restored to the mortgagee, or his assigns. § 4. If the attaching creditor shall deny the validity of a mortgage, and move that the same may be tried by a jury, the Court shall order NO. II.] STATUTORY PROVISIONS. — MASSACHUSETTS. 623 such trial on such issue as shall be framed therefor under the direction of the Court, and if. upon sucli cxaniinHtion or verdict, the mortgage shall be adjudged valid, the mortgagee, or his assigns, shall recover his costs. § 5. When the creditor shall have paid to the mortgagee, or his assigns, the sum directed by the Court, as aforesaid, he shall be entitled to retain out of the proceeds of the property attached, when sold, the sum so paid, with interest, and the balance, if any, shall be applied to the payment of his debt. § 6. If the attaching creditor, after having paid the sum directed by the Court, as aforesaid, shall not recover judgment in the suit, he shall, nevertheless, be entitled to hold the property until the debtor shall have repaid the sum so paid by order of Court, with interest. Massachusetts Revised Statutes, G39, ch. 107: — § 40. Wheu tlie condition of any mortgage of personal property has been broken, the mortgagor, or any person lawfully claiming or hold- ing under him, may redeem the same at any time within sixty days thereafter, unless tlie property shall, in the mean time, have been sold, in pursuance of the contract between the parties. § 41. The person entitled to redeem shall pay or tender to the mortgagee, or to the person holding under him, the sum due on the mortgage, with all reasonable and lawful charges and expenses, in- curred in the care and custody of the property, or otherwise arising from the mortgage thereof; and if the property is not forthwith re- stored, the person entitled to redeem the same may recover it in an action of replevin, or may recover such damages as he may have sus- tained by the withholding thereof, in any action adapted to the circum- stances of the case. Massachusetts Statute, 1843, ch. 72. Supplement, 262 : — § 1. In all mortgages of personal property, the right of the mort- gagor or his assigns to such property shall not be forfeited, until sixty days after the mortgagee or his assigns shall have given written notice to the mortgagor or the person in possession of said property, claiming the same, of his or their intention to foreclose said mortgage, for a breach of the condition thereof, and caused a copy of the same notice to be recorded in the town clerk's office, where the mortgage is re- corded. Massachusetts Statute, 1850, 4(;2, ch. 284: — If any mortgagor of personal property shall sell or convey said prop- erty, or any part thereof, without the written consent of the mortgagee, and without informing the person, to whom he may sell or convey. 624 APPENDIX. [no. II. that the same is mortgaged, said mortgagor shall be held guilty of a misdemeanor, and shall be punishable by a fine not exceeding one hun- dred dollars, or by imprisonment in the county jail or house of correc- tion for a term not exceeding one year. Massachusetts Statute, 1856, eh. 174: — In all mortgages of personal property, when the mortgagor shall have removed beyond the limits of this Commonwealth, and there shall be no attorney, assignee, or other legal representative of the mortgagor, and no person in possession of the property claiming the same, known to the mortgagee, upon whom notice of intention to fore- close can be served under the provisions of the seventy-second chapter of the acts of the year eighteen hundred and forty-three, the notice therein provided may be given by a publication of the notice at least once a week for three several weeks, the first publication to be not less than sixty days previous to the foreclosure, and the last within one week of the time appointed therefor. The said publication to be made in one of the principal newspapers of the cities or towns where, by law, the said notice is to be recorded ; and if there be no paper published in such cities or towns, then in one of the principal news- papers in the county or counties where such property is situated; and to be also recorded in the city or town clerk's office, as provided in said statute. Massachusetts Statutes, 1859, ch. 246, p. 409 : — The mortgagor of personal property or any other person, fraudu- lently removing or concealing the i^roperty, or aiding or abetting therein, and any mortgagor assenting thereto, are made liable to fine or imprisonment. In New Hampshire, by the Revised Statutes, 248, ch. 133: — § 1. Personal property, and crops of every description, whether the same have or have not come to maturity, are subject to mortgage, agreeably to the provisions of this chapter. § 2. Possession must be delivered to and retained by the mortga- gee, or the mortgage must be recorded in the office of the clerk of the town in which the mortgagor resides at the time of making the same. § 3. Each mortgagor and mortgagee shall make and subscribe an affidavit in substance as follows : — " We severally swear that the foregoing mortgage is made for the purpose of securing the debt specified in the condition thereof, and for no other purpose whatever, and that said debt was not created for the purpose of enabling the mortgagor to execute said mortgage, but NO. II.] STATUTORY PROVISIONS. — NEW HAMPSHIRE. 625 is a just debt, honestly due and owing from the mortgagor to the mortgagee." § 4. If such mortjrajre is given to indemnify the mortS7C>iV to property mortgaged ii. 415 4CCiZ>.ExVr, equity jurisdiction of i. 29, n. parol evidence of i. 50 ACCOUNT, mortgagor not liable to i. 156, 183 mortgagee is subject to . . . i. 448 ; ii. 579, 589, 598, n. by mortgagee, for timber cut i. 231, n. to third persons i. 463 effect of, upon foreclosure .... ii. 21 reference for the purpose of ii. 227 opening of ii. 255 (See Opening, &c.) in case of attachment of chattels mortgaged ... ii. 516 (See Attachment, &c.) ACKNOWLEDGMENT, effect of, in case of lapse of time . . ii. 21 of mortgage of chattels .... ii. 476, n. ACTIO HYPOTIIEGARIA i. 32 ACTION FOR WASTE i. 225 by assignee of mortgage i. 268; ii. 535 on mortgage, by executor i. 276, n., 281 by mortgagee, effect of assignment upon i. 591 foreclosure by ii. 115 and entry ii. 281 for debt, after foreclosure ii. 292, 549 by mortgagee, in case of attachment of chattels mort- gaged ii. 507 662 INDEX. ACTION — continued. rebuts presumption of payment ii. 572 in case of pledge, damages in ii. 611 ACTUAL Possession ii. 248 change of possession, what ii. 446 notice ii. 416 ADEQUATE REMEDY at law, equity jurisdiction in case of . ii. 126 ADMINISTRATOR, in case of mortgage" for support, &c. i. 174, n., 178, n. of mortgagee, effect of appointing the mort- gagor i. 485, 496 of insolvent mortgaged estate i. 372 redemption of foreign mortgage by . . . i. 374 of mortgagor, whether delivery is necessary as to ii. 438 rights and duties of ... . ii. 528 ADMIRALTY JURISDICTION, in case of mortgage . . . ii. 401, n. ADMISSION of debt in a mortgage i. 119 ADOPTION of the mortgagor's tenant by the mortgagee ... i. 199 ADVERSE Possession of mortgagor or mortgagee . . . i. 167 and n. ; ii. 3, 4, 6, 16, 17 title, whether mortgagee can enter under .... i. 170 when the tenant's possession is, agaiiist the mortgagee ii. 119 et seq. ADVERTISEMENT of execution sale ii. 310, n. foreclosure by ii. 147 (See Foreclosure.) AFFIDAVIT, in case of foreclosure sale ii. 240 attachment of mortgaged property . . ii. 627 AGENT, whether a mortgagor in possession is . . . i. 179, 183; ii. 393 whether a mortgagee is i. 449 of mortgagor, not liable to suit on the mortgage ... ii. 120 mortgage of chattels by ii. 352 ALIEN, mortgage to i. 10 by i. 11 ALIENATION, mortgage whether an i. 161 ALLOWANCE to mortgagee, in case of redemption i. 452 AMENDMENT in suit on mortgage ii. 188 ANNUAL BESTS, in account of mortgagee i. 447 ANNUITANT, has no right of redemption i. 394 ANSWER IN EQUITY, whether it may prove an absolute deed to be a mortgage i. 53, 70, n. APPLICATION of proceeds of sale to different debts i. 248, 317 ; ii. 576 payment to mortgage debt i. 304 payments by the mortgagor i. 499 APPOINTMENT, power of, reserved in a mortgage i. 212 APPORTIONMENT of mortgage debt, or equitable lien upon dif- ferent estates i. 352, 707 ; ii. 228 proceeds of foreclosure sale ii. 249 APPRAISAL in execution sales of equities of redemption ... i. 274 INDEX. 663 ASSENT of parties necessary to mortgage ii. 345 ASSETS, mortgage is i. 274 and »«., 282 whether an equity of redemption is i. 400 marshalling of, in case of mortgage i. 372, n. ASSIGNEE, may redocna i. 70 of mortgage, privity between, and the mortgagor . i. 192 lease, whether a mortgagee is, in reference to tlie covenants i. 217 of mortgage, suit by i. 268, 563 and n. bankrupt, rights of, in case of mortgage i. 392 ; ii. 395, 432 whether a necessary party, &c, . . ii. 179, n. registration, whether necessary as to ii. 469 of mortgagor, may redeem the mortgage .... i. 396 of mortgage debt, whether he may levy upon the equity of redemption i. 411 mortgage, liability of, to the mortgagor . . i. 5G2, n. what amount he may claim .... i. 569 whetiier airected by usury i. 596 whether a necessary party to a suit i. 565 (.See Assignment, Pauties, «&c.) of mortgagor, defence of usury by i. 600 second mortgage, may redeem from an execution sale ii. 329 mortgage, whether subject to equities, &c. i. 571, 581 ; ii. 532 and n. equity of redemption, may redeem from an exe- cution sale ii. 329 redemption by ii. 91, n. mortgage, rights of, as to delivery ii. 354 ASSIGNMENT OF MORTGAGE i. 630 whether itself a mortgage i. 42, n., 94 in case of mortgage /or support i. 174 and n. by mortgagee — the mortgagor becomes tenant at sufferance i. 177 mortgagee may make, notwithstanding the mortga- gor's possession i. 177 of mortgage, without the debt . . . . i. 2;j0 and n., et seq. when necessary to vest a title in the party paying the mortgage debt . i. 238, n. whether a transfer of the debt is an . i. 235 it passes the debt .... i. 39 how made i. 239 of several mortgage debts to diPTerent persons i. 240 ci seq. policy of insurance to mortgagee i. 256, n., et seq., 266 and ?(., 267 mortgage, is the conveyance of an estate ... i. 267 to a subsequent mortgagee .... i. 334 with a guaranty by the mortgagee . i. 345, 565 in connection with claim of dower . i. 435, n. 664 INDEX. ASSIGNMENT — continued. of dower, whether necessary to the right of re- deuiptiou i. 433 mortgage, liability of mortgagee for rents, &c., in case of i. 446 surplus rents by a mortgagor i. 467 and discharge of mortgage, compared and distin- guished . . . ■ ii. 292, 507 of mortgage, whether a warranty deed is an . . i. 536 divests the mortgagee's title i. 561 ; ii. 80, n. registration of i. 579 of a mortgage of indemnity i. 555 conditional, construction of . i. 557 and n. form of i. 559 whether it passes rent in arrear . i. 562 to a purchaser of the equity of re- demption i. 564 parties to a suit after . . . i. 565 ; ii. 144 consideration of i. 566 and n. for what amount it gives a claim . i. 569 does not imply a guaranty ... i. 576 effect of making the mortgagor a party to i. 577 liability of mortgagee to mort- gagor, after i. 578 fraud avoids i. 582 whether usurious . . . . i. 568, 586, n. mortgagee's declarations in case of, whether evidence i. 606 effect of, in case of fraud . i. 622 and n. of mortgage, mortgagee has no implied lien in case of i. 678 mortgage, effect of, upon foreclosure . . . ii. 23 for creditors, and mortgage, distinguished ... ii. 475 of mortgage of chattels ii. 632 in equity ii. 554 of pledge ii. 608 ATTACHING CREDITORS, whether parties to suit on mort- gage ii. 137, n. notice of mortgage to ... . ii. 478 ATTACHMENT, power of sale does not make the mortgagee's interest liable to i. 140 gives a creditor the right to redeem .... i. 392 when avoided by concealment, misrepresen- tation, &c i. 635, n. mortgage of property subject to ii. 528 of equity of redemption, execution sale after ii. 289, 295 extent of the lien thus acquired .... ii. 331 INDEX. 665 ATTACHMENT — continued. is amcre lien . . .' ii. 318, 331, 333 of niortgaj^eJ personal property . ii. 342, oO.'3, 576, n. {See Statutes conckrning Moutgages of Personal PnoPEitTY.) statement of account, &c., in case of. . . ii. 517, 525 statutes concerning, whether applicable to exe- cutions ii. 524 in suit upon the mortgage debt ii. 527 in case of pledge ii. G08 ATTACHMENTS, simultaneous, of equity of redemption . . . ii. 333 ATTORNEY, concealment of mortgage by i. 630 mortgage to, by his client i. 645 ; ii. 261 -general, sale by ii. 271 ATTORNMENT o( SittinsLnt to the mortgagQe i. 207, 209 AUTHORITY of mortgagor of chattels to sell ii. 463 B. BAILEE, mortgage of property in possession of ii. 546 by ii. 547 BAILMENT, a pledge is a ii. 601 jB^I /X/F7'\ whether mortgagee is a i. 439 BALANCE OF DEBT, suit for, after foreclosure ii. 292 BANKRUPT, assignee of, rights of i. 392 -law, in reference to mortgages ii. 286 BANKRUPTCY, parties in case of ii. 179, n. foreclosure in case of ii. 286 continued possession of mortgagor in case of ii. 395, 431 BILL OF DISCOVERY i. 619; ii. 598, «. for redemption, amendment of ii. 165, 187 in equity on mortgage, pleading in ii. 184 of sale of ship ii. 386, 392 and bill of parcels, compared ii. 438 parcels ii. 438 sale, whether construed as a mortgage ii. 474, 477 lading, pledge of ii. 608 in equity, in case of pledge ii. 609, 612 BOND and mortgage, limitation in case of ii. 16, n. whether to be surrendered upon foreclosure ii. 262 jBO/22?OTF/A^(7, whether necessary to a mortgage i. 1 mortgage in case of ii. 582 BOTTOMRY ii. 398, 400 BUILDING, when personal property i. 168 on another's land, mortgage of ii. 378 BUILDINGS, allowance to mortgagee for i, 455 BURDEN OF PROOF, as to payments by the mortgagor . . . i. 603 666 INDEX. c. CANCELLING of defeasance i. 84 mortgage on the record . . . i. 522 and n. ; ii. 89, n. CERTIFICATE of entry, for foreclosure ii. 278 registry of sliip . . ii. 386 and n., 388 and n., 397 registration of mortgage ii. 502 CESTUI QUE TRUST, whether party to a suit . . . . i. 393; ii. 134 CHAMPERTY, assignment of mortgagor is not i. 385, n. CHANCERY, jurisdiction of mortgages i. 29 {See Equity.) injunction of, against waste i. 223 CHARGE, vendor's lien is a i. 666, n. CHATTEL, the mortgagee has a i. 157, 234, 275 CHATTELS REAL, mortgage of ii. 384 CHOSE IN ACTION, whether mortgage is ... . i. 230, 268, 275 mortgage of ii. 456, 478 whether the mortgagor's interest is a . . ii. 510 pledge of ii. 607 CIRCUMSTANTIAL EVIDENCE, mortgage proved by . . . i. 61 of payment i. 503 CIVIL LAW, relating to mortgages i. 31 right of redemption by i. 69, n. as to power of sale in a mortgage i. 131, n. tacking i. 296 future advances, &c i. 310 sureties i. 338 equitable lien i. 663, 667, 694 foreclosure ii. 32, n., 33, 34 hypothecation ii. 394 CLAIM, foreclosure by ii. 166, 176, n. CLEARING of wild land by mortgagee i. 464 CLERKS IN CHANCERY, proceedings of, in case of registra- tion ii. 490 CLIENT, mortgage by i. 645;ii. 237 CLOUD UPON THE TITLE, chancery will remove . . . ii. 507, n. COLLATERAL SECURITY, right of a subsequent mortgagee as to the application of . i. 335 and n. effect of, on mortgage .... ii. 536 mortgage is ii. 584 COMlVnSSION of mortgagee i. 442 COMMITMENT of mortgagor, effect of, on the mortgage i. 484 ; ii. 104 COMPENSATION, in case of mortgage for sujiport . . i. 120 and n. COMPOUND INTEREST i. 447 CONCEALMENT, effect on mortgage i. 627 CONCURRENT REMEDIES, in case of mortgage i. 108; ii. 26, 27, 28, 43, 54, 61, 64, 67, 103, 111, 126, 282 INDEX. 667 CONCURRENT — contiyiued. jiirisclii'tg:ige, construction of i. 476 parol evidence of ii. 354 {See Defeasance.) effect of breach of ii. 361 performance of ii. 534 CONDITIONAL judgment, on mortgage . . . i. 243, 611 ; ii. 125, 218 tender cannot be ii. 100 CONDITIONAL SALE, i. 96 and mortgage . i. 79, 80, 94, 105, 108; ii. 593 equitable mortgage, distinguished . i. 94 terms necessary to i. 96 parses the title i. 101 whether favored by the law .... i. 101 in case of rent-charge i. 103 lease i. 104 whether provable by parol evidence . . i. 106 subject to an equity of redemption i. 79 assignment of mortgage . . . i. 94, 557 and n., 563 and absolute sales, distinction between ... ii. 477 CONDITIONS, doctrine of, applied to mortgages .... i. 155, n. CONFIRMATION of mortgage of infant i. 646, n. Master's report ii. 243 CONFLICT OF LAWS, in case of moi^tgage ii. 441, 486 CONSIDERATION of mortgage ii. 566, 571 want of i. 607 ; ii. 365, 400, n. of subsequent mortgage, proof of, in a suit against the first mortgagee ii. 422 of release of mortgage ii. 547 illegal ii. 548 CONSISTENT with the terms of a mortgage, the possession of the mortgagor ii. 453 CONSTITUTION. {See Statute.) CONSTRUCTION of conditions, precedent and subsequent . . i. 20 condition of mortgage i. 285 CONSTRUCTIVE NOTICE i. 641 {See Rkgistr.vtiox.) trust, vendor's lien is a i. 666, n. possession of mortgagee, effect of ... . ii. 14 CONSUMABLE ARTICLES, mortgage of ii. 408, 466 668 INDEX. CONTEMPLATION OF BANKRUPTCY, mortgage in . . . ii. 552 CONTINGENT INTEREST, assignable ii. 554 CONTRACT, whether it gives a right to redeem . . . i, 392 et seq. CONTRIBUTION for redemption . . i. 397 et seq. ; ii. 127, n., 140, n. CONVERSION, when a sale by the mortgagor is ii. 579 CONVEYANCE from mortgagor to mortgagee, effect of . . . i. 514 by mortgagee, effect of i. 531 COPY OF MORTGAGE, whether evidence ii. 28 CORPORATION, mortgage in case of — redemption may be re- stricted i. 77 mortgage of ii. 352 shares in, pledge of ii. 604, 608, 615, n. COSTS incase of mortgage i. 334, ii. 591 COUNTY, in what, a mortgage shall be registered ii. 488 COURT OR JURY, whether the question of mortgage is for . . i. 61 in what, suits on a mortgage shall be brought ... ii. 121 COURTS OF U. S., whether bound by State laws ii. 14 COVENANT to pay, none in the Welsh mortgage i. 5, n. in mortgage i. 108 whether necessary to mortgage i. 81 and condition compared i. 120; ii. 581, 594 by mortgagee to pay rent i. 214 purchaser to pay the mortgage debt .... i. 357 for mortgage debt i. 103, 108, 115; ii. 16, n. how affected by lapse of time . ii. 26 whether a mortgage implies ii. 582 COVENANTS in mortgage, estoppel by i. 13, 7i. lease by mortgagee and mortgagor i. 212 whether a mortgagee is bound by ... . i. 217 of title, whether an execution sale passes . . ii. 323, n. in sheriff's deed ii. 335 CREDITOR, whether entitled to redeem i. 392 e^ seq. mortgagee is ii. 103 a prior mortgagee is i. 626 purchaser of the equity is i. 626 bill of, against mortgagee ii. 139, n. CREDITORS, fraud as to i. 612, 621, 658 whether a vendor's lien shall prevail against . i. 668, 688 whether necessary parties to a suit ii. 137 delivery is necessary as to ii. 430 registration as to ii. 468 notice to ii. 555 CROP of land mortgaged i. 181 and n., 195 CROSS-BILL, by second mortgagee i. 331 CURTESY, in case of mortgage i. 29, 420 CUSTOM to cut timber, whether evidence of is admissible . . i. 225 INDEX. 669 D. DAMAGES upon covenant in mortgage i. 119 and n. DATE, of defeasance i. 37 several mortgages i. 322 DEBT AND MORTGAGE, connection between i. 233 et seq., 285, 323, n., 473, 511, 519, 527, 572, 585, 607, G61, n. ; ii. 24 et seq., 44, 47, 52, 111, 115, 117, 119, 123, 125, 194, 198, 218, 227 et seq., 279, 292, 343, 365, 421, 527, 534, 536, 7i., 569, 572, 583, 594 and n. separation of i. 237 and n. secured, parol evidence as to i. 450 mortgage — , effect of foreclosure upon ii. 292 and pledge, connection of ii. 586 and n. DEBTS, mortgage liable to i. 276 to what a foreclosure applies ii. 306 DECLARATION, in suit on mortgage ii. 121-, 184 and n. DECLARATIONS of grantee, to prove a deed to be a mortgage i. 62 et seq. of mortgagee, in case of assignment . . . i. 574, 606 DECREE, charging land, whether a mortgage i. 41 in case of conditional sale i. 107, n. of foreclosure, waste after i. 229 to account, parties necessary for i. 471 in case of equitable mortgage i. 709 equitable, in suit at law on mortgage ii. 109, 121 for redemption, who bound by ii. 130 in suit on mortgage ii. 203 a security for future interest, «&c ii. 203 obtained by fraud ii. 261 DEED, mortgage must be a i. 2, n. whether necessary to the assignment of a mortgage . L 238 et seq^ from mortgagor to mortgagee, effect of i. 514 from mortgagee, effect of i. 531 and mortgage, what avoids, respectively i. 585 parol evidence as to i. 605 and mortgage, consideration of i. 607 of officer, upon an execution sale of an equity of redemp- tion ii, 323 title — , deposit of i. 648, 666 DEFEASANCE, mortgage by i. 34 ; ii. 353, 362 cainiot restrict redemption i. 73 cancelling of i. 84 recording of* i. 45 parol i. 50 registration in case of ii. 474 execution sale in case of ii. 309 and n. delivery in case of ii. 442 conditional sale by ii. 593 670 INDEX. DEFINITION OF MORTGAGE i. 1 DELIVERY of Mortgage, whether it passes a title . . . i. 239 et seq. to c'erk for record ii. 499 several mortgages, presumption as to ... i. 322 mortgage, how proved ii. 194 ship mortgaged ii. 390, 394, 425 registration of second mortgage dispenses with . . ii. 422 of personal property mortgaged . . ii. 342, 375, 401, 428 (See Statutes concerning Mortgages of Personal Property.) general doctrines concerning ii. 428 unnecessary between the parties ii. 429 whether necessary in relation to creditors, &c. . . ii. 429 English decisions respecting ii. 431 doctrine in the several States ii. 432 whether necessary, of articles not easily deliverable ii. 438, 440, 446 want of, who may object ii. 448 in case of an express agreement for the mortgagor's possession ii. 453 registration a substitute for ii. 468 without continued possession ii. 472, 480 in case of mortgage of property attached . . . ii. 628 assignment of mortgage ii. 534 pledge ii. 602 DEMAND and refusal, upon mortgage for support, &c. . . i. 120, n. of possession by mortgagee — (See Notice to Quit.) and refusal, of account ii. 93 whether necessary to suit on mortgage ii. 198 in case of attachment of property mortgaged . . . ii. 611 (See Attachment of Mortgaged Personal Property.) in case of pledge ii. 611 (>EMISE AND RE-DEMISE, mortgage by i. 27, n. DEMURRER to bill for redemption after twenty years . . ii. 10, 11, n. DEPOSIT of mortgage debt, whether payment i. 487, 507 title-deeds i. 648, 666 DESCRIPTION of property mortgaged ii. 374 DEVISE by mortgagor, before condition broken i. 155, n. whether revoked by mortgage i. 161 DEVISEE, redemption against i. 396, n. of mortgaged property, rights of, as to payment — (See Fund for Payment, &c.) DISABILITY, effect of, upon limitation ii. 19 DISCHARGE of debt, effect on mortgage i. 236,269 mortgage i. 519; ii. 510 by executor i. 276, n. and assignment of mortgage, compared i. 514, 525, «., 631, 664 ; ii. 328, 507 of mortgage, after assignment i. 661 INDEX. 671 DISCHARGE — co7ilinued. of mortgage by execution sale ii. 47 on the record . . . i. 522 and n., ii. 89, n. DISSEISIN, between mortgagor and mortgagee . i. 107 and n., 192; ii. 16, 20 whether a transfer by tlie mortgagor is i. 192 possession of the mortgagor is .... i. 208 of mortgagor, elfect on the mortgagee .... i. 2G8, n. of mortgagee, what i. 182, n., 191; ii. 121 DISSEISOR, whether lessee of mortgagor is a i. 106 ct seq. DISTRESS, whetlier mortgagor is liable to i. 202 DISTRIBUTION of proceeds of property mortgaged .... i. 349 DOWER, whetlier the wife of a mortgagee has i. 22 in equity of redemption i. 390, 420 intermediate riglit of, prevents merger i. 544 vendor's lien, in connection with i. 680, 687 E. EARNINGS OF SHIP, whether mortgagee has ii. 393 EATON X- J^'^QUES,C2iSQo{ \. 2\% et seq. EJECTMENT, by the mortgagor against a disseisor .... i. 165 on mortgage ii. 115 (^See Foreclosure.) whether without notice i. 188 el seq. (Sec Notice to Quit.) ELECTION, disseisin of mortgagee by ii. 120 of remedies ii. 127, 302, 306 EMBLEMENTS i. 181 and /»., 195 ENROLMENT, in case of ship — (See Registry Acts, &c.) ENTRY of mortgagee, effect upon his title i. 154 and n., 236 and n., 242, 246 «., 273, 283 mortgagee has the right of i. 168 of mortgagee, not for foreclosure i. 178, 441 and n. for foreclosure ii. 7, 78, 79 (See Foreclosure.) accountability of mortgagee after ... i. 465 by assignee, mortgagee may avail himself of ... . i. 565 foreclosure by, effect on subsequent mortgagee . . ii. 157, n. and action, remedies by ii. 280 EQUITABLE LIEN lor purchase-money — (Sec Lien.) title, by payment of a mortgage i. 566 by deposit of title-deeds i. 647 liens i. 648; ii. 410 judgment in suit on mortgage ii. 115, 125 owners, whether parties to a suit ii. 134 lien, upon proceeds of foreclosure sale .... ii. 253 672 INDEX. EQUITABLE MORTGAGE i. 648, 601 and conditional sale, distinction between i. 94, 105 and legal estates of mortgagee and mortgagor . i. 183 assignment of mortgage — (See Assignment.) EQUITIES, whether assignee subject to — (See Assignment.) EQUITY — (See Chancery.) interference of, in case of mortgage i. 29 and law, relative doctrines and practices of, in refei-ence to mortgages . . . i. 29 and ?i., 61, 157, 195, 271, 564, 622, 626, 661, n., 674; ii. 5, 7, 17, 44, 66, 78, 82, 112, 125, 126, 127, 180, 201, 342, 360, 410 and n., 474, n. vendor has a lien only in i. 674 proceedings for foreclosure in ii. 31 proceedings, in case of pledge — (See Pledge, Equity.) EQUITY OF REDEMPTION . . . i. 384, ii. 44, 340, 476, 533, 544 history of .... i. 30 ; ii. 89 n. distinction between, and legal right of redemption . . . i. 30, n. whether any exists in conditional sale i. 106 mortgage of i. 322 definition and nature of . . . i. 384 and trust, compared .... i. 385 to whom it belongs .... i. 390 against whom it may be claimed i. 395 whether assets i. 400 liable to execution . , i. 400 lien of judgment upon . . i. 400, n. whether liable to execution for the mortgage debt . . i. 401 ; ii. 501 curtesy in i. 413 dower in i. 414 execution sale of ii. 308 conveyance of, subject to the mortgage i. 601 whether created by fraudulent mortgage ii. 319 an incorporeal hereditament . . ii. 335 ESCHEAT, gives right of redemption i. 393 ESTATE, of mortgagor i. 153 of mortgagor in possession i. 179 of mortgagee i. 233 whether equity of redemption is an . . . . i. 384, n. ; ii. 331 the lien of a rendor is an i. 666, «., 674 ESTATES, of mortgagor and mortgagee, relative nature of . . i. 183 INDEX. 673 ESTOPPEL, of mortpagoe ii. 541 by covenants i. 11, n. subsequent title, in case of mortgage . . . i. 126, 127 judgment, in case of usury i. 603 concealment and misrepresentation of title i. 627 ; ii. 165, 521 of execution creditor, as to mortgage ii. 320 of second mortgagee, as to prior mortgage ... ii. 425 of mortgagor, as to the mortgagee's title .... ii. 464 EVICTION, what i. 123, n. lessee of mortgagor i. 200, 206 et seq, ■whether necessary to avoid a mortgage, for failure of title i. 613 entry to foreclose is an ii. 274, n. EVIDENCE, whether a mortgage note is necessary i. 344 of payment, circumstantial i. 509 in suits on mortgages ii. 198, 365 EXCEPTION in decree of foreclosure ii. 227 EXCHANGE of mortgaged goods — (See Futuue Property, mortgage of.) EXECUTED and executory contracts i. 664, 670, 673, 674, 695 ; ii. 408, 410, n. 591 EXECUTION, purchaser of equity, rights of i. 91 and n. rights of, as a tenant i. 211 whether mortgage is subject to i. 273 lien of, mortgage subject to i. 323, n. purchaser, may compel equitable adjustment of the debt i. 337 mortgaged land sold on, is primarily liable . . . i. 371, ?t, whether equity of redemption is liable to . i. 400 and n. ; ii. 503 for mortgage debt, whether extendible on the equity i. 401 ; ii. 338, n. effect on the mortgage . . i. 484, 497 sale or extent of equity of redemption .... ii. 310 usury in case of ... , i, 600, 7i. sale, &c., on, statutes and decisions concerning . ii. 310 whether the land shall be sold, or appraised and set off ii. 310 sale, after extinguishment of the mortgage ... ii. 318 levy of, in case of fraud ii. 319 on a part of the mortgaged property . . ii. 323 effect of the officer's deed — registration . . ii. 323, 329 whether the covenants pass by such sale . . . ii. 323, ii. right of redemption from sale on ii. 328 nature of the mortgagor's remaining title . . . ii. 331 proceedings in case of several executions ... ii. 383 whether seisin of the mortgagor is necessary , . ii. 335 sale of the right of redeeming subsequent mortgages ii. 337 VOL. II. 43 674 INDEX. EXECUTION — continued. purchaser, the mortgagor cannot set up the mort- gage against ii. 326 sale, effect on the mortgage lien ii. 47 {See Foreclosure.) levy of, on mortgaged personal property . ii. 342, 451, 456 statutes concerning attachment, whether applicable to . . ii. 524 sale, waiver of mortgage by ii. 541 EXECUTOR of mortgagee, effect of making the mortgagor i. 485, 495 and heir, respective rights of, in case of a power of sale i. 138 mortgage passes to i. 235, 237, w., 275 and n. is primarily liable for debts i. 370 et seq. of mortgagor, rights and duties of . . . . i. 370, 396-, n. redemption by ii- 91> n- EXPENDITURES by mortgagee, allowance for i. 452 '' EXPRESSUM FACIT CESSARE;' &c.,'m reference to a mortgage i- 119 EXTENSION of mortgage i. 483, 630 ; ii. 561, 572 of time for redemption ii. 39, 227 EXTENT OF EXECUTION on equity of redemption . . ii. 310, 318 EXTINGUISHMENT of mortgage i. 480 ; ii. 535 prior mortgage, by purchase of the land i. 330 subsequent mortgages by execution sale i. 333 mortgage by subsequent transactions be- tween the parties . . i. 484, 488 whether by the mortgagor's being executor of the mortgagee . . . . i. 485, 495 deposit of debt, whether an i. 487, 499 in reference to a second mortgagee i. 488 may be proved by parol and circumstantial evidence i. 503, 506 by transfer of the land . . i. 514 release i. 519 F. FACTOR, pledge by ii. 608 FAILURE OF CONSIDERATION by defect of title .... i. 612 FALSE RETURN of execution sale ii. 310, n. FEJklE COVERT, mortgage to i. 11 by i. 11 when not estopped i. 644 {See Husband and Wife.) INDEX. 675 FEOFFMENT on condition, a mortfrage originally was .... i. 6 FEUDAL LAW, in relation to mortgages i. i^O, n. FILING OF MORTGAGE— (.SVcKkgistration, &c.) renewal of ii. 467 FIXTURES, removal of, by m<;rtgagor i. 227 riichts of morttrasree and mortirajifor concerning . i. 453, n. construction of a mortgage as to . . . . ii. 381, 440, 447 what are ii. 447 FLAOa V. MANN, case of i. 93 FLUCTUATING PROPERTY, mortgage of ii. 408 FORECLOSURE ii. 1 effect of, upon the title to the crops of land mortgaged *. . . . i. 181, n. upon the title of a lessee i. 206 waste after decree of i. 229 after the mortgagee's death i. 277 and redemption, election of second mortgagee between i. 328 and n. different modes of, whether usury is a defence to i. 592 and redemption, distinction between as to usury i. 592 opening of i. t)04 ; ii. 254 suit for, whether the mortgagee's title is open in i. 623 of equitable mortgage i. 656, 705 by lapse of time ii. 3 definition of ii. 1 and redemption are reciprocal rights . . ii. 2, 129, n. whether, by the Statute of Limitations . . . ii. 15 what disabilities will prevent ii. 19 of Welsh mortgage ii. 21 effect of acknowledgment of debt upon ... ii. 23 by legal proceedings ii. 30 \ bill in equity ii. 30 strict ii. 31 by sale, &c ii. 31, 228, 236, 649 extension of time for ii. 39 in the United States ii. 43 by entry ii. 78, 274 action at law ii. 115 parties to suits for ii. 129 binds only parties ii. 129, 147 upon a creditor's bill against the mortgagor ii. 139, n. by advertisement, after assignment .... ii. 147 Avhether delayed by conflicting claims ... ii. 179 by claim — (See Claim.) for non-payment of instalment ii. 207 interest ii. 216 -sale, what avoids ii. 254 waiver of ii. 281 whether payment of the mortgage debt ... ii. 292 676 INDEX. FORECLOSURE —conii?i?- """ u.V/. ..J3..QV. N. NAME, description bj', whether necessary i. 559 and 7i. NATURE of the property mortgaged ii. 348 NECESSARY ARTICLES, mortgage of i. 8 NEGOTIABLE NOTE, pledge of ii. 007 NEW YORK, power of sale in i. 151, n. 688 INDEX. NOTE, production of, in suit on mortgage i. 3-14; ii. 260 and mortgage, parol evidence to connect i, 450 renewal of, effect on mortgage i. 477, 488 pledge of ii. (507 and n. NOTES, to what, a foreclosure shall apply ii. 306 NOTICE of sale, under a power i. 143 entry of mortgagee, without i. 168 and 7i. to quit, to mortgagor i. 181 to tenant or purchaser of the mortgagor . . . i. 196 by registration i. 301 (See Registration.) tacking, in case of i. 301 recording of assignment, whether i. 580 constructive i. 640 of sale of equity of redemption on execution . . , ii. 310, m. in relation to the lien of a vendor i. 681 of foreclosure to subsequent incumbrancers .... ii. 157 hj lis j)endens ii. 165 how far a substitute for registration ii. 478 of mortgage of ship ii. 484, n. NOTING, form of, in case of registration ii. 491 iV"0r0i2/£'Tr of conveyances in the United States .... i. 662, 711 NUL TIEL RECORD, plea of, in mortgage suit ii. 194 o. OCCUPATION AND POSSESSION— distinction .... ii. 277 OFFICER, rights and duties of, as to levies upon equities of re- demption ii. 334 in case of attachment — (See Attachment of mortgaged personal property.) ONCE A MORTGAGE, ALWAYS, &c i. 67 OPEN and peaceable entry for foreclosure — (See Foreclosure.) registration must be ii. 499 OPENING of foreclosure i. 604;ii. 254 ORDER of sale of different mortgaged estates . . i. 352, 707 ; ii. 230 and disposition of bankrupt, what is within ii. 395 (See Bankrupt.) ORIGIN of mortgages i. 6, n., 32, ?i. OUSTER, Avhether necessary to suit on mortgage ii. 126 {See Disseisin.) OWNER, whether mortgagor is i. 155, 186, 235, 384, n. mortgagee is . . . ii. 385, 390, 419, 430, 465, 470 (See Mortgagee.) INDEX. 689 p. PAROL EVIDENCE, in case of husband and wife 1.15 as to defeasance — (See Dkkkasance.) date of mortgage and time of payment i. 288 of future advances i. 309 et seq. mortgage debt . . . . i. 450 ; ii. 366, 375 payment i. 506 et seq., ii. 537 assignment or discbarge i. 554 as to usury i. C05 ; ii. 548 in case of fraud i. 037 in relation to deposit of title-deeds . . i. 651 and 71., et seq, of mortgagee's acknowledgment ... ii. 23 as to mortgage of ship ii. 392 property meant to be mortgaged . ii. 404 to prove an absolute sale of personal prop- erty a mortgage ii. 436 defeasance i. 49; ii. 324 registration in case of ii. 473 discharge of mortgage i. 230 et seq. transfer of debt and mortgage i. 239 el seq. (See Assignment.) PART-OWNER, on what terms he may redeem i. 402 PART-OWNERS of ship, mortgage by ii. 395 PARTICULAR TENANT and reversioner, in case of mortgage i. 461 (See Reversioner.) PARTIES to mortgage i. 9 entitled to redeem i. 389 affected by usury i. 596 what, may set up usury i. 599 to bill, in case of vendor's lien i. 708 registration, whether necessary between i. 716 to pledge ii. 009 to suit, in case of mortgage i. 326, n. ; ii. 561 general rule respecting ii, 129, 161, 100 whether mere equitable own- ers must be ii. 134 creditors and debtors persons jointly interested assignees and purchasers sureties for the mortgage debt other incumbrancers . remainder-men • heirs, executors, &c. guardiau .... VOL. II. 44 ii. 137 ii. 139 ii. 144 ii. 156 ii. 156 ii. 167 ii. 167 ii. 175 690 INDEX. PARTIES — continued. to suit, in case of mortgage, husband and wife . . . ii. 175 principal and agent ... ii. 178 adverse claimant .... ii. 179 joint, to mortgage of personal property . . . . ii. 368, .374 delivery unnecessary between ii. 429 PARTITION, in case of mortgage i. 19 ; ii. 127, n. PARTNER, mortgage by i. 18 and n., 318 ; ii. 321 PARTNERSHIP, whether mortgaged property can be put into ii. 412, n. PARTY to mortgage, whether a surety is, in equity . . . i. 338 et seq. PAWN— (See Pledge.) PAYjNIENT, effect of, on power of sale i. 143 of debt, effect on mortgage i. 236, 269, 473 and n., 538 ; ii. 509 of mortgage, after mortgagee's death .... i. 276, n. from what fund i. 374 application of i. 304, 499, 504 of debt, before maturity i. 482, n., 496 what, necesssary to extinguish a mortgage . i. 476, 484, 488; ii. 28 distinction between, and a deposit i. 487, 507 how proved i. 503 by particular tenant i. 504 remedy of mortgagor after i. 509 whether good against an assignee i. 569, 581, n. extension of i. 628 time allowed for, by decree of foreclosure . ii. 38 et seq., 227 into court, by mortgagor ii. 101, 189 by mortgagor, subrogation by means of ... . ii. 163 whether foreclosure is ii. 292 effect of, upon foreclosure ii. 282 forfeiture ii. 425 (See Mortgage, Forfeiture.) PEACEABLE ENTRY for foreclosure — (See Foreclosure.) PENALTY, condition of mortgage, whether i. 29 agreement as to interest, whether a i. 87 PENDENTE LITE purchasers ii. 165 PERISHABLE PROPERTY, mortgage of ii. 408, 456 PERSONAL estate, mortgage of — (See Mortgage of Personal Property.) payment of mortgage from i. 370 security, production of, in suit on mortgage i. 344 ; ii. 186 (See Note, &c.) securities, to what, a foreclosure applies .... ii. 306 liability in case of mortgage i. 108 ; ii. 15, n. services, mortgage for i. 120, n. estate, whether mortgage is i. 233; ii. 569 and real estate, mortgage of ii. 430 (See Mortgage.) property, what ii. 420 INDEX. 691 PETITION for foreclosure — (See Forkclosure.) PEW, mortj^age of i. 10 PIGNUS—(,SCC Pl.KDCK.) PLACE of tender of mortgage debt i. 22 of recording mortgage ii. 484 PLEADING ii. 184 in case of usury i. GOo PLEDGE ii. 601 and mortgage compared ami distinguished . i. 234; ii. 343, 358, 411, 430, 440 and 7t., 449 (See MORTGAGK.) possession in case of ii. 412 terms of ii. G06 power of sale in case of ii. 004 of what property ii. G06 parties to ii. COS assignment of ii. G08 delivery of ii. 608 liability secured by ii. 609 remedies in case of ii. 609 and hypothecation ii. 603 sale of ii. G09 ■written ii. 604 of stock ii. 604, COS, GIO, n. of choses in action ii. 607. 612 and debt, connection between ii. GlOandn. POLICY OF INSURANCE, in case of mortgage i. 254 (See Insuranck.) POSSESSION and occupation, distinction ii. 277 of mortgagor, interest created by i. 179 is that of mortgagee i. 183 mortgagee's right of . . . i. 168; il. 451, 454, n., 472 of mortgagor, agreement for i. 171 ; ii. 453 (See MouTGAGK.) of mortgagee, effect upon his title . i. 23G, 242, 246, n. of mortgagor, whether necessary to levj- of execu- tion ii. 309 whether necessary to the Hen of a vendor ... i. G73 how far notice i. 716 continued, of mortgagee or mortgagor — (See Foreclosure hy Lapsk oe Time.) suit on mortgage founded upon ii. 119 what is, for the purpose of foreclosure .... ii. 279 of personal property mortgaged — (See Delivery.) of mortgagee of ship — (See Mortgage, Siiir.) in case of lien ii. 412 of second mortgagee ii. 422 692 INDEX. POSSESSION — contbmed. re<^istration substituted for ii. 468 whether necessary for the trustee process ... ii. 513 of bailee, mortgage in case of ii. 547 of mortgagor — {See Mortgagor, Statutes con- cerning Mortgages of Personal Property.) pledge — {See Pledge.) POSSIBILITY, mortgagor has, after execution sale .... ii. 331 POUNDAGE, whether a mortgagee can receive i. 468 POWER OF SALE i. 129 ; ii. 358, 575, 582 whether inconsistent with right of redemp- tion i. 130, 139 applies to the remedy i. 130 given to a third person i. 131, n. civil law concerning i. 131, n. history of i. 132 construction of i. 134, 140 execution of, by mortgage i. 139 usury, in case of i. 594, 597 deposit of deeds with i. 655 whether mortgagee must rely upon ... ii. 361 how far to be considered as a trust . i. 134 et seq. whether the mortgagor must join in the con- veyance i. 138 cannot be exercised for exorbitant purposes . i. 139 whether the mortgagee can become the pur- chaser i. 144 et seq. to whom and in what manner notice of the sale shall be given i. 143 to whom the surplus proceeds shall be paid . i. 139 and n. whether it involves a power to lease ... i. 139 mortgage i. 139 and n. does not change the mortgagee's title until executed i. 140, 142 for what causes invalid i. 142 upon what evidence of breach of condition it may be exercised i. 144 whether for non-payment of instalments . i. 144 how extinguished i. 147 statutes concerning i. 149, n. in New York i. 151, n. PRECEDENT AND SUBSEQUENT CONDITIONS . i. 20, 155, 159 PREEMPTION, right of, of mortgagor, after execution sale . . ii. 332 PREFERENCE, in violation of the bankrupt law ii. 552 PRESUMPTION, as to payment i. 503 ; ii. 44, n., 585 {See Foreclosure by Lapse of Time.) fraud ii. 428 INDEX. 693 PRICE, lien for — (See Equitahlk IMoitTOAOK.) PRINCIPAL AND INTEREST in case of assignment .... i. 573 mortgage .... ii. 216 PRIVITY OF ESTATE, between inorfgagor and mortgagee, &c. i. 184, 192 mortgagee and tenant of mort- gagor i. 192, 197 PROBATE COURT, authority of, as to dower i. •i:]6 PROFITS, agreement as to, when usurious i. 687, 690 PROMISSORY NOTE, renewal of, effect on mortgage — (5ce Note, Renewal.) PROOF of mortgage debt in case of insolvency, &c ii. 286 PROPERTY, what may be mortgaged i. 6 mortgaged, nature of ii. 378 wliether personal or real ii. 378 buihliiig on another's land ii. 378 perishable property ii. 378 grass ii. 379 growing wood ii. 380 fixtures ii. 381 chattels real ii. 384 description of, in mortgage ii. 403 PURCIIASE-:M0NEY, mortgage for i.- 2 and n., 328 ; ii. 440 of ecjuity of redemption by mortgagee .... i. 78 mortgaged i)ersonal property from the mortgagee ii. 542 PURCHASER, under foreclosure suit i. 181, n. from mortgagor, covenant by, to pay the debt . i. 357, n. whether mortgagee may be ii. 288, n. (See Sale, Void, &c.. Power of Sale.) assignment of mortgage to i. 565 rights of, in relation to usury i. 597, 600 lien of, for the price i. 708, n. whether mortgagee is ii. 448 PURCHASERS of difl'erent parcels, apportionment of mortgage debt among i. 352 ■whether bound by the lien of a vendor .... i. 681 pendente lite ii. 165, 229 delivery, whether necessary as to ii. 429 registration as against i . . . ii. 468 Q. QUASI TENANT AT WILL, whether mortgagor is . i. 83, 179, 187, 238, 71. QUI PRIOR IN TEMPORE, &c i. 247 senlit commodnm, etc., applied to mortgage of ships ... ii. 362 QUITCLAIM DEED, from mortgagor to mortgagee, whether a mortgage is extinguished by . . . . i. 515 694 INDEX. R. RAILROAD, mortgage in reference to i. 7, n.; ii. 415, n. RATIFICATION of mortgagor's lease by mortgagee . . i. 198 et seq. mortgage ii. 345, 352 REAL ESTATE, wliether mortgage is i. 274, 283 liability of, for debts of deceased person ... i. 307 action, on mortgage ii. 115 nature of ii. 115 whether it depends on freehold title . ii. 117 against a reversioner, &c ii. 117 jurisdiction of, in Massachusetts . . ii. 121 declaration in ii. 122 whether the mortgagee's title is open in ii. 123 whether a paramount title can be set up in ii. 124 plea of tender in ii. 125 whether ouster necessary to . . . . ii. 126 pleading in ii. 184 and n. equitable decree in ii. 218, 222 or personal estate, whether ii. 378 notice of unrecorded mortgage of . . ii. 475 REASONABLE TIME of demand by mortgagee .".... ii. 521 REBUTTER, doctrine of, in relation to mortgages . . . i. 13, n., 126 RECEIPT FOR PRICE, whether a waiver of the vendor's lien — {See Waiver, &c.) property attached, estoppel in case of . . . ii. 548, n. BECEIVER i. 467 ; ii. 235, 532, n. whether mortgagor is i. 179 and h., 183, 213 RECOGNIZANCE and mortgage, comparison of i. 181, n. for mortgage debt, effect on the mortgage . . i. 489 RECONATEYANCE, condition for i. 23, 39 RECORDING— {See Registration.) REDEEM, whether the word implies a mortgage .... i. 95 and n. REDEMISE, whether agreement for mortgagor's possession is a i. 175 REDEMPTION, allowance of, in equity i. 29 ; ii. 47 {See Equity of Redemption.) rule against restricting i. 69, 139 in case of conditional sale i. 106; ii. 598 whether a personal liability is necessary to i. 108 et seq. and foreclosure, election between by second mortgagee i. 327 and n. terms of i. 397, 430, 439, 471, n. ■whether of part of the land .... i. 397 ; ii. 3, n. in case of dower i. 429 of equity sold on execution — {See Execution Sale, &c.) and foreclosure, mutuality of ii. 129, n. * {See Foreclosure by Lapse of Time.) INDEX. 695 REDEMPTION — covlimied. statutes concerning ii. ftS history of, in Massachusetts ii. 87, ?;. by heir ii. Ul, n. assignee ii. 91, ??. executor ii. 91, n. in case of reversion ii. 117, n. decree for, who hound by ii. 129 order of, in case of several incumbrances . . . ii. 16.0 riglit of, in case of suit upon the debt after fore- closure ii. 292 of mortgaged personal property . . . . ii. 559, 574 mortgage assigned as security . . . . ii. 569, 585 pledge — (See Plkdgk.) REFERENCE TO MASTER ii. 227 i^^FOTiMf a deed, whether a court of law may i. 59 REGISTRATION, of defeasances i. 45 ; ii. 442 mortgage i. 193, 715; ii. GO, n., 345, 378, 4G3, 4G8 effect of, upon tacking i. 301 whether notice i. 301, G34 of agreement, referred to by mortgage . . i. 317 successive mortgages i. 322 assignment i. 537, 579 officer's deed of equity ii. 323 whether a substitute for delivery of title-deeds i. G58, G59, n., 663 in case of concurrent mortgages ii. 421 policy of, in the United States . . . i. 663, 668, 6S9 whether necessary to the lien of a vendor . . i. 684 a substitute for livery of seisin i. 720 of certificate for foreclosure ii. 79 delivery in case of ii. 345, 421, 439 of mortgages of personal property .... ii. 468 (See Statutes conckunixg Moutgagks ok Pkusonal PKorEUTY.) general object of ii. 468 a substitute for delivery ii. 469 of what instruments ii. 473 place of ii. 484 mode or form of ii. 490 certificate of ii. 495, 500 whether necessary to pass a title ii. 487 after attachment, &c ii. 507 of equitable mortgage ii. 598 REGISTRY, discharge of mortgage in . . . . i. 522 .and n. ; ii. 89, ?». REGISTRY ACTS, concerning ships ii. 385 d seq. i^Z-'Zyir/C.Vof defeasance to deed i. 37 subsequent agreement for redemption .... i. 80 RELATIONS, mortgage in case of, whether the redemption may be restricted i. 76 696 INDEX. r RELEASE of right of redemption i. 78 whetlier mortgagor's interest can be enlarged by . . i. 184 of a portion of the lands mortgaged .... i. 362 et seq. mortgage i. 519 ; ii. 5o9 on the record ii. 89, n. RELIEF, prayer for by mortgagor ii. 190 REMAINDER, mortgage in case of ii. 20 and n. parties to suit in case of ii. 167 REMEDIES in case of mortgage — {See Foreclosure, Redemption.) concurrent — {See Concurrent.) in the United States ii. 43 election of ii. 302 in case of pledge ii. 610 REMEDY of mortgagor, after payment i. 514 REMOVAL, registration in case of ii. 484 RENEWAL of lease by mortgagee, whether mortgagor has the benefit of i. 90 note, effect on mortgage i. 477, 488 RENT, whether mortgagor is liable to i. 181 to whom paid by tenant of mortgagor i. 198 and reversion in case of mortgage i. 208 in arrear, whether mortgage passes i. 209 reservation of, in lease of mortgagor and mortgagee . . i. 212 whether mortgagee may be bound to pay i. 214 and interest, agreement as to i. 318, 329 whether an assignment of mortgage passes i. 562 a lien as against a mortgage ii. 449 RENT-CHARGE, conditional sale in case of i. 103 RENTS AND PROFITS, whether mortgagee may claim . . . i. 198 how received by mortgagor .... i. 156 application of, by mortgagee i. 441 and n., 443 received by mortgagee, assignment of . i. 467 liability of mortgagor for, to a pur- chaser i. 467, n. REPAIRS, allowance to mortgagee for i. 453 of ship, liability for ii. 390 mortgaged property, title to ii. 416 REPORT of Master as to sale ii. 243 REPURCHASE, whether the word implies a sale i. 96 RES INTER ALIOS— iudgment ii. 129 RESTS, rules concerning i. 447 RETURN of sale of equity on execution ii. 310, n. REVERSION and rent, in case of mortgage i. 208 of mortgagor, liability of, to execution . . . ii. 309, n. REVERSIONER, when possession is not adverse to ... . i. 167, n. whether mortgagee is i. 180, 185 and n. redemption by i. 390 rights of, as to interest i. 451 INDEX. 697 REVERSIONER — continued. action of foreclosure against ii. 117 and tenant for life, relative rights of . . ii. 117 and n. (See Paktici'i.ak Tkn'ant, »fcc.) REVOCATION of devise, by mortgage i. IGl S. SALE, by mortgagor ii. 4G0, 403 upon foreclosure, efTect upon the title of a lessee ... i. 20G proceeds of, how applied . i. 317, 347, 39fi, n. on execution for the mortgage debt . i. 402 of property mortgaged in case of insolvency .... i. 412, n. (See FoRECLOSUKE, in case of insolvency.) equity of redemption on execution ii. 308 on execution, usury in case of i. ')03 of right to redeem equity, after execution sale . . . .* ii. 331 decree of, in case of deposit of deeds i. 655 vendor's lien i. 70.5 by mortgagee ii. 602 (See Power ok Sale.) foreclosure by ii. 30, 65, 574 (.See Foreclosure.) on execution, waiver of mortgage by ii. 541 of land mortgaged, upon a bill by a creditor of the mort- gagor ii. 138, n. on mortgage, whether delayed by conflicting claims of the defendants ii. 179 of pledge — (See Pledge.) for non-payment of instalment ii. 207 decree for ii. 228 befoi-e breach ii. 228 forms of ii. 236 of mortgaged chattels, and purchase of others ; effect of, on the mortgage — (.Sec Future Property, mortgage of.) on execution, of mortgaged personal property .... ii. 503 of mortgaged property, agreement for in the mortgage . . ii. 456 on execution, form of .... ii. 511 on mesne process ii. 5.30 SCHEDULE, description of property by ii. 4(>6 registration of ii- 497 SCIRE FACIAS, on mortgage i. 302 (.Sec FORECLOSURr..) SEAL, whether necessary to mortgage ii. 350, 352 SEALED instrument, whether defeasance must be i. 43 and n. consideration of i. 608 SECOND MORTGAGEE — (See Sun.sE<}ui:xT Mortgage.) action by, for waste i. 226 698 INDEX. SECOND MORTGAGEE — continued. ■whether postponed to third — (See Tacking.) and tliird mortgages, adjustment between i. 337 SECURITY, mortgage made for ' i. 157;ii. 360 whetlier a mortgage is merely i. 246, 480 taking of, whether a waiver of vendor's lien — (See Waiver, &c.) SEISIN, covenants of i. 123 a mortgagee must allege i. 244 whether a mortgagee has i. 246, n. equity of redemption is a i. 384, n. what necessary to dower i. 436 what passes by sheriff's deed ii. 335 SEQUESTBATION oi mortgaged iprojierty ii. 576, n. /Sis'/? F^A^r, whether mortgagor'is i. 179, 183 of mortgagor, suit on mortgage against ii. 120 SERVICES, mortgage for i. 120, n. SET-OFF in case of mortgage i. 507 of equity of redemption on execution ii. 310 SETTING ASIDE, of foreclosure sale ii. 254 SETTLEMENT of mortgagor i. 166 and n. SHARES, mortgage of . .' ii. 575 pledge of ii. 604 SHERIFF, deed of, of equity of redemption ii. 334 SHIPS, sale or mortgage of ii. 385 mortgage of ii. 385 maritime law concerning ii. 385 form of ii. 385 statutes of registry, &c., as applied to . ii. 385, 397 in the United States ii. 388 decisions relating to ii. 388, n. effect of, upon the title, &c., of the mortgagee ii. 389 delivery and possession in case of . . ii. 393, 429, n. compared with liypotliecation and hottomry ii. 400, 401 SIMULTANEOUS ATTACHMENTS of equity ii. 333 SIX MONTHS allowed by decree for redemption ii. 38 SLAVES mortgaged, issue of ii. 420 SPECIALTY, whether defeasance must be i. 43 STATE, removal of mortgaged property from — (See Place of Registration.) -mortgage, discharge of i. 525, n. validity of mortgage in reference to ii. 552 STATES, conflict between, as to mortgaged property .... ii. 440 STATUTE of Frauds in relation to mortgages i. 60', 66, 235, 239, n., 506 and mortgage, compared i. 181, n. of Limitations, as to mortgage . . i. 190, 347 ; ii. 15, 26, 417, 537, n. (See FoKECLOSURE, Limitations.) INDEX. 699 STATUTE — ro?)///^/^^/. in relation to execution sale of e(iuity of nMkiiiption i. 401 et seq. discharge of mortgage i. o22 and ». title, strict proof of ii. 320 of Frauds, as to deposit of title-deeds ... i. 6.")0 et serf. vendor's lien i. (iG6 of Limitations, as to mortgage debt . . . ii. .0:57, u., .0G7, ?i. as to foreclosure, when unconstitutional ii. lo must be strictly pursued . . . . ii. 44 as to opening of foreclosure ii. 29S of Frauds, as to sale of lands ii. 3>^0 STATUTES concerning defeasances i. 44 redemption ii. 88 foreclosure ii. 43, 274 registry of ships — (See Siiirs.) fraudulent mortgages . . ii. 433, 440, 7i., 448 registration ii. 4G8, 490 attachment of moi'tgaged personal property ii. ol2 mortgages of personal property ... ii. 620 STATUTORY remedies in case of mortgage ii. 43 STEWARD, mortgagee is i. 4.;'J STOCK in trade, mortgage of ii. 4.56 mortgage of ii. 574 pledge of — {See Pledge.) hyj)otkecation of ii. G15 STREAM, mortgage of i. 10 STRICT FORECLOSURE ii. 30 e< .se(/., o4 ;SC7i^A'OG.4T/OA' of second mortgagee i. 33;J surety i. 33.S parties having a limited interest . . i. 3'J7 et seq. in case of equitable lien i. 695 of mortgagor to first mortgagee ii. 162 SUBSEQUENT agreement for redemption i. 75 purchaser, whether a mortgagee is ii. 448 and prior mortgagees, respective riglits of i. 341, 439 and n., 447,^4()4, 488, 544, 5.")4, 602, 604, n., G2o, n. {See SuccKssivE Mortgages.) property, mortgage of — (See FuTUKE PiioPEirrv, &c.) mortgagee, whether a creditor i. 626 mortgagee, delivery of title-deeds to i. 656 debts, mortgage for — (See Future Debts, «fec.) pledge (or ii. 609 mortgagee, notice to i. 720 whether j)arty to a suit .... ii. 150 suit by, i)artics in case of ... . ii. Itil mortgage of personal property ii. 421 purchasers, delivery as to ii. 429 SUBSTANTIAL OWNER, whether mortgagee is i. 236 700 INDEX. SUCCESSIVE mortgages — (See Suhsequent axd Prior, &c.) registration in case of i. 716 purchasers from the mortgagor, liability of . . i. 352 SUFFERANCE, tenant at, whether mortgagor is (See Tenant at Sufferance.) SUPPLIES, whether mortgagee of ship is liable for . . . ii. 390 and n. SUPPORT, &c., mortgage for ' i. 119 SURCHARGE AND FALSIFY, right to ii. 2G1 SURETY, for mortgagor, rights of i. 317, 554 how far treated as party to the moi'tgage i. 340 effect upon, of mortgagee's Zac/ics i. 341 mortgage to i. 345, 442 (See Indemnity, &c.) foreclosure by i. 348 when the mortgagor becomes i. 358 purchase by mortgagee for benefit of i. 519 mortgage to, how extinguished i. 554 as to vendor's lien i. 695 pledge to — (See Pledge.) SURPLUS proceeds of foreclosure sale ii. 252 (^^ee Foreclosure Sale.) SURPRISE, absolute deed, whether construed as a mortgage in case of — (See Defeasance, Parol, &c. ) SURVIVORSHIP, in case of joint mortgagees i. 272 SYMBOLICAL DELIVERY ii. 608 (See Delivery, »&c.) TACKING, in case of mortgage i. 292, 329, 334, 583 definition of i. 292 foundation of i. 293 whether applicable to creditors by judgment, &c. . i. 292, n. objections to i. 295, 301 whether an equitable right i. 295 civil law respecting i. 296 to what parties applicable i. 301 whether defeated by registration i. 302 notice i. 307 adopted in the United States i. 302 in case of foreclosure and redemption, respectively i. 306, 315 distinction between, and mortgage for future advances, &c i. 308 TAXES, liability of mortgagee for I. 472, n. TENANT in common, mortgage by i. 18 ; ii. 127, n. at will, whether mortgagor is . . . i. 83, 179, 217 ; ii. 8, 18 of mortgagee, action by i. 170 attornment of, to mortgagee i. 208 INDEX. 701 TENANT — cnniinncd. at sufferance, whetlier mortgagor is . . i. 179, 183, 185, 188, 216 ; ii. 18 mortgagor may have a i. 181 for years, wlicther mortgagor is i. 184, 216 of mortgagor, rights and duties of i. 193 for life, redemption by i. 390, 610 and reversioner, «S:c., rights of, as to mortgage i. 4.')9 ; ii. 21 and n., 115 and n. by tlic curtesy, redemption by i. 390 for years ,, ,, i. 390 in tail ,, ,, i. 504 in possession, suit on mortgage against ii. 119 and servant, distinction between ii. 120 TENANTS in common, when mortgagees are i. 272 whether mortgagor and mortgagee are ii. 454, n. TENDER, ancient rule concerning i. 6 effect of, upon land and debt i. 20, 514 and ;i. in case of mortgage of personal property . ii. 536 time and place of i. 21 after breach of condition . . . i. 21, 22, n., 479, n. ; ii. 561 effect of, on power of sale i. 143 after execution sale of equity ii. 328 for the purpose of redemption — (»S'ee Statutoky Remedies, &c.) plea of, in suit on mortgage ii. 125 whether necessary to a bill for redemption .... ii. 188 in case of conditional sale ii. 598 pledge ii. 612 TERMS of redemption — {See Equity of Redemption.) THIRD MORTGAGEE, purchase of first mortgage by ... . i. 292 {See Tacking.) . TIMBER, cutting of, by mortgagor i. 223 by mortgagee i. 465 mortgage of ii. 380 TIME of tender of mortgage debt i. 22 lapse of, in case of mortgage i. 30; ii. 3 {See Limitation, Moutgagk, Foueclosuhe.) of payment of mortgage i. 288, 481, 482 and n. extension of i. 477, 630 of redeeming equity sold on execution ii. 328 allowed by decree of (breclosure, 93 distinction as to, between different actions . i. 593 what parties affi-cted by i- 596 in mortgage, effect of a judunient in case of i- G03 pleading and evidence of i. 605 V. VADIUM VIVUM i. 5, n. "VARIANCE, in suit on mortgage ii. 198 VENDEE, lien of i. 708, n. VENDOR, lien of, for purchase-money i- 482 {See LiKN OF Vendor.) VOID OR VOIDABLE mortgage i. 17, 585 ; ii. 546 fornsury . ^ . . . i. 585; ii. 548 fraud i. 618 infancy i. 17, 645 uncertainty ii. 411 VOLUNTARY grantee, redemption by i. 392 mortgage i- 622 VOTING, right of, in connection with mortgage i. 167, n. w. WAIVER of time of payment of mortgage i. 474 mortgage ii. 527, 541 Hen i. 482, 672. n., 694 forfeiture ii. 424, 561, 570 first mortgage by a second ii- 426 WARRANTY in mortgage, estoppel by \.V.\,n. deed, mortgage in form of i. 123 what is an eviction, within a i- 123, n. deed, whether a mortgage passes by i. 538 WASTE, in case of mortgage . . . i. 223, 454, n., 457 ; ii. 79. ??., 231 WELSH mortgage i. 5, m. ; ii. 21 WIDOW, vendor's lien in relation to i. 080, 687, 703 whether party to suit n- l^S WIFE, mortgage to and by — {See Husband, &c.) whether party to suit ''• 175 WILD LAND, clearing of, by mortgagee i. 464 mortgage of, how foreclosed ii. 21, 23 WILL, when a mortgage passes l)y i- 235 704 INDEX. WOOD, cutting of, by mortgagor — (See Waste.) WORDS of mortgage, -whether material .....*»... i. 121 WRIT OF ENTRY — (-See Real Action.) WRITING, whether necessary to mortgage ii. 546 pledge by ii. 604 YEARS, mortgage for — (See Leasehold.) 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